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CEFALO v. INTERNATIONAL UNION OF DIST. 50

UNITED STATES DISTRICT COURT, DISTRICT OF COLUMBIA.


January 29, 1970.

Angelo J. Cefalo et al., Plaintiffs
v.
International Union of District 50, United Mine Workers of America et al., Defendants.

On the basis of the verified complaint, affidavits, and exhibits on file, and having heard argument of the parties, the Court hereby makes the following Findings of Fact and Conclusions of Law.

Findings of Fact

1. This is an action under 29 U.S.C. § 529 which makes it "unlawful for any labor organization or any officer, agent, shop steward, or other representative of a labor organization . . . to fire, suspend, expel, or otherwise discipline any of its members for exercising any right to which he is entitled under the provision of Labor-Management Reporting and Disclosure Act of 1959 (LMRDA)" and which provides that persons whose rights have been infringed may bring suit where the principal office of the labor organization is located, and 29 U.S.C. § 501 which provides that union officers have a fiduciary duty to manage union affairs solely for the benefit of the union's members.

2. Plaintiffs who are all members of and in good standing in The International Union of District 50, United Mine Workers of America, and who support the nomination and election of the Cefalo-Badoud-Foley slate, are:

 a. Angelo J. Cefalo, a resident of Bowie, Maryland, is Vice President of The International Union of District 50, United Mine Workers of America, and a member of its International Executive Board.

 b. John J. Badoud, a resident of Washington, D.C., is Secretary-Treasurer of The International Union of District 50, and a member of its International Executive Board.

 c. William J. Foley, a resident of Cranston, Rhode Island, is Assistant to the President of The International Union of District 50, United Mine Workers of America and a member of its International Executive Board.

 d. Joseph De Falco, formerly Regional Director of Region 43, is a resident of Chicago, Illinois, and a Special Representative of The International Union of District 50, United Mine Workers of America.

 e. Dale T. Badoud, a resident of Oklahoma City, Oklahoma, is an International Representative of The International Union of District 50, United Mine Workers of America.

 f. Frank Crise, a resident of St. Louis, Missouri, is Regional Director of Region 45, of The International Union of District 50, United Mine Workers of America.

 g. Joseph A. Gentile, Jr., formerly Regional Director of Region 6, is a resident of Liverpool, New York, and a Special International Representative of The International Union of District 50, United Mine Workers of America.

 h. Burlie E. Sizemor, a resident of Columbus, Ohio, is an Assistant Regional Director of Region 34 of The International Union of District 50, United Mine Workers of America.

 i. Edward J. Galuszka, a resident of Warren, Rhode Island, was formerly an International Representative of The International Union of District 50, United Mine Workers of America. (Verified complaint paragraph 1.)

 3. Defendant, The International Union of District 50, United Mine Workers of America (sometimes hereinafter referred to as "District 50") is a labor organization within the meaning of Sections 3(i) and (j) of the Labor-Management Reporting and Disclosure Act of 1959 (sometimes hereinafter referred to as "LMRDA"). Defendant, Elwood Moffett, is currently the International President of Defendant District 50 and a member of its Executive Board. Defendant Elwood Moffett is a candidate for reelection to the post of International President this year. Defendants District 50 and Elwood Moffett maintain their principal address at 4880 MacArthur Boulevard, N.W., Washington, D.C. 20007. (Verified complaint paragraph 2.)

 4. On or about November 13, 1969, plaintiffs Cefalo, John Badoud and Foley announced their candidacies for the offices of President. Secretary-Treasurer, and Vice President, respectively, of District 50. (Exhibits I, II, and III - Cefalo, Badoud and Foley affidavits.)

 5. Under the constitution of District 50, a candidate for international office must receive the nomination of at least fifty local unions in order to be placed on the ballot in the referendum election to be held the second Tuesday in May, 1970. (Exhibit XI, Constitution of District 50, Article IX, §§ 1, 3 and 7.)

 Plaintiff De Falco

 6. Prior to November 25, 1969, plaintiff De Falco was Regional Director of Region 43 (Chicago, Illinois) of defendant District 50 and had performed his duties in a satisfactory manner. (Exhibit I - Cefalo affidavit.)

 7. Plaintiff De Falco publicly announced his support of the Cefalo-Badoud-Foley slate of candidates for international office to a meeting of the Region 43 (Chicago, Illinois) staff of defendant District 50, pointing out that each staff member was free to support the candidate of his choice. Verified complaint paragraph 9.)

 8. Subsequent to this announcement by plaintiff De Falco, on November 25, 1969, defendant Moffett wrote plaintiff De Falco that he was being demoted to the post of Special International Representative. (Verified complaint paragraphs 7, 8 and 9; and Exhibit IV (a).)

 9. Defendant Moffett replaced plaintiff De Falco with an individual supporting defendant Moffett's candidacy for reelection. (Verified complaint paragraph 8.)

 10. Plaintiff De Falco contends he was demoted in reprisal for his publicly announced support of the Cefalo-Badoud-Foley slate. (Verified complaint paragraph 10, Exhibit 1 - Cefalo affidavit.)

 Plaintiff Dale Badoud

 11. On or about the week of October 6, 1969, plaintiff Dale Badoud, who is plaintiff John J. Badoud's son, was assigned to Region 55 (Kansas City, Missouri) of District 50 where he actively supported the Cefalo-Badoud-Foley ticket. (Verified complaint, paragraphs 11 and 13; Exhibit II - Badoud affidavit.)

 12. Plaintiff Dale Badoud's Regional Director, Charles Harrison, a supporter of the candidacy of defendant Moffett for reelection, assigned plaintiff Dale Badoud to Oklahoma City, Oklahoma. (Verified complaint paragraphs 12 and 14; Exhibit II - Badoud affidavit.)

 13. District 50 has no local unions or membership of any kind in Oklahoma City, and plaintiff Dale Badoud was assigned there. (Verified complaint paragraph 14; Exhibit II - Badoud affidavit.)

 14. Plaintiff Dale Badoud contends he was transferred away from the membership of Region 55 in reprisal for and in order to prevent his soliciting any support on behalf of the Cefalo-Badoud-Foley slate of candidates. (Verified complaint paragraph 16; Exhibit II - Badoud affidavit.)

 Plaintiff Crise

 15. Plaintiff Crise is Regional Director of Region 45 (St. Louis, Missouri) of District 50. (Verified complaint paragraph 19; Exhibit VII b.)

 16. On November 25, 1969, defendant Moffett transferred plaintiff Sizemore from Region 45 to Region 34 (Columbus, Ohio) without consulting plaintiff Crise.Such consultation has always been customary in the past prior to the making of a transfer. Similarly on November 26, 1969, defendant Moffett transferred Assistant Director Charles Duty, one of his supporters, from Region 29 (Birmingham, Alabama) to replace plaintiff Sizemore in Region 45. Again, contrary to established practice, plaintiff Crise was not consulted. (Verified complaint paragraphs 25 and 26; Exhibit VII b.)

 17. On December 2, 1969, plaintiff Crise had a conversation with defendant Moffett in which defendant Moffett offered to assign plaintiff Crise to Salt Lake City, Utah as a special representative with no cut in pay. Plaintiff Crise refused this assignment. Defendant Moffett responded that he would be reelected and on his reelection would not need the support of plaintiff Crise, who would then find himself far away from Salt Lake City. (Exhibit VII j.)

 18. On December 2, 1969, defendant Moffett wrote to plaintiff Crise, assigning one of his supporters, an Assistant to the President, Vernon Ford, to Region 45, and further assigning representative Bolen of Region 45 to provide Mr. Ford with transportation. (Verified complaint paragraph 55.)

 19. The actions of defendant Moffett in regard to plaintiff Crise infringe on his prerogatives as a Regional Director, intimidate him in regard to the exercise of his political choice and freedom of speech and threaten him with reprisals for failure to act in accord with defendant Moffett's wishes. Plaintiff contends this intimidation is in reprisal for plaintiff Crise's failure to support defendant Moffett in his campaign for reelection. (Verified complaint paragraphs 34 and 35.)

 Plaintiff Gentile, Jr.

 20. Plaintiff Gentile was designated Regional Director of Region 6 (Syracuse, New York) of District 50 on December 1, 1967. Since that time, plaintiff Gentile has performed his duties as Regional Director in a satisfactory manner, and has received the praise of defendant Moffet. (Verified complaint paragraphs 36, 37 and 38; Exhibit VI a - Gentile affidavit, and Exhibit VI b - Frank affidavit.)

 21. Plaintiff Gentile recommended to many local union officers that they endorse the Cefalo-Badoud-Foley slate of candidates. These actions on the part of plaintiff Gentile were well known to supporters of defendant Moffett's candidacy for reelection. (Verified complaint paragraphs 40, 41 and 42; Exhibit VI a - Gentile affidavit, and Exhibit VI b - Frank affidavit.)

 22. On December 5, 1969, defendant Moffett wrote plaintiff Gentile that he was relieved of his duties as Regional Director of Region 6. (Verified complaint paragraph 43; Exhibit VI f.)

 23. Plaintiff contends the demotion of plaintiff Gentile by defendant Moffett was in reprisal for plaintiff Gentile's support of the Cefalo-Badoud-Foley slate of candidates. (Verified complaint paragraphs 43 and 44; Exhibit VI a - Gentile affidavit, and Exhibit VI b - Frank affidavit.)

 Plaintiff Sizemore

 24. Plaintiff Sizemore was until November 25, 1969 Assistant Regional Director of Region 45 (St. Louis, Missouri) of District 50, at which time he was transferred to Region 34 (Columbus, Ohio). (Verified complaint paragraphs 18 and 25; Exhibit VII a - Size-more affidavit, and Exhibit VII b - Crise affidavit.)

 25. On November 20 and 26, 1969, plaintiff Sizemore indicated to Mr. John Oshinski, a supporter of defendant Moffett's campaign for reelection, that he could not support defendant Moffett. Oshinski, who is an Assistant to the President of District 50, responded that defendant Moffett had decided to transfer plaintiff Sizemore. (Verified complaint paragraphs 21 and 24; Exhibit VII a - Sizemore affidavit.)

 26. Plaintiff contends that in reprisal for his failure to support defendant Moffett's candidacy for reelection, plaintiff Sizemore was transferred to Columbus, Ohio over the objections of Regional Director Crise and several unions serviced by plaintiff Sizemore, as well as his own protest. Defendant Moffett refused a request made by plaintiff Crise by letter of November 24, 1969, to transfer an international representative assigned to Region 45 even though this individual had not been effective in performing his duties in Region 45 because of his inability to get along with the local unions in the region. (Verified complaint paragraphs 25, 27, 28, 29, 31, 32 and 34; Exhibit VII b - Crise affidavit, and Exhibits VII f, h and i.)

 Plaintiff Galuszka

 27. Plaintiff Galuszka was employed in Region 1 (Boston, Massachusetts) of District 50 as an International Representative. Plaintiff Galuszka has performed his duties in a more than satisfactory manner. (Verified complaint paragraph 46; Exhibit III - Foley affidavit.)

 28. On June 28, 1969, plaintiff Galuszka questioned defendant Moffett on why he had repudiated a District 50 debt to the United Mine Workers after having acknowledged it. (Verified complaint paragraph 47; and Exhibit III - Foley affidavit.)

 29. Plaintiff Galuszka, since October 1969, has actively supported the candidacy of Angelo Cefalo for president of District 50. (Exhibits VIII g, h, i, j, k - Coulter, Moxley, Peters, Mirailh and Galich affidavits.)

 30. On October 20, 1969, defendant Moffett transferred plaintiff Galuszka to Region 6 (Syracuse, New York). This transfer was rescinded November 10, 1969. However, on November 25, 1969, defendant Moffett transferred plaintiff Galuszka to Region 56 (Lexington, Kentucky) which transfer was protested by plaintiff Galuszka.(Verified complaint paragraphs 49 and 51.)

 31. Plaintiff contends that the action of defendant Moffett in transferring plaintiff Galuszka was in reprisal for plaintiff Galuszka's opposition to defendant Moffett's candidacy for reelection.As a result of plaintiff Galuszka's failure to accept his transfer to Region 56, defendant Moffett fired plaintiff Galuszka on December 1, 1969. (Verified complaint paragraphs 51, 52 and 53.)

 Use of Union Funds for Political Purposes

 32. On December 2, 1969, defendant Moffett assigned Assistant to the President Vernon Ford to Region 45 (St. Louis, Missouri) ostensibly to review with local unions certain litigation being carried on against the United Mine Workers.Defendant Moffett assigned an International Representative to act as chauffeur for Mr. Ford. (Verified complaint paragraphs 55 and 56.)

 33. Plaintiff contends that the Assistant to the President Ford spent the majority of his time in Region 45 campaigning for defendant Moffett. (Verified complaint paragraph 56.)

 34. During the week of December 8, 1969, Assistant to the President John Oshinski was in the Newark, New Jersey region to drum up support for defendant Moffett's candidacy for reelection. (Verified complaint paragraph 60.)

 35. Plaintiff Crise was ordered to report to Washington for a meeting with defendant Moffett on December 9, 1969. Plaintiff Crise was kept in Washington for two days, December 9 and 10, by defendant Moffett. During this period he met with defendant Moffett for only one hour. (Verified complaint paragraphs 57 and 59.)

 36. Defendant Moffett specifically instructed Assistant Director Charles Duty, a Moffett supporter, to assume direction of Region 45 in plaintiff Crise's absence. During the week of plaintiff Crise's trip to Washington, there were seventeen regular local union meetings. Plaintiff contends that defendant Moffett's purpose in bringing plaintiff Crise to Washington was to allow Assistant Director Duty to obtain nominations from local unions for defendant Moffett. (Verified complaint paragraphs 58 and 59.)

 Division of Regions

 37. Effective September 1, 1969, defendant Moffett merged Region 37 into Region 63 (Saginaw, Michigan).(Exhibit X d.)

 38. On November 24, 1969, Region 37 (Ludington, Michigan) was reestablished by defendant Moffett, who appointed one of his supporters, Mr. Andrew J. Boonie, as Regional Director. Plaintiff contends that the appointment of Mr. Boonie serves to diminish the influence of Mr. Harold J. Bowers, Regional Director of Region 63, who is opposed to defendant Moffett. (Verified complaint paragraph 64; Exhibit X c.)

 39. Effective December 16, 1969, defendant Moffett reestablished Region 25 (Providence, Rhode Island) which had been part of Region 1 (Boston, Massachusetts). Plaintiff contends that defendant Moffett's purpose in taking this action was to diminish the influence of Plaintiff Foley, who is supporting plaintiff Cefalo's campaign, and who is his candidate for Vice President. Plaintiff Foley is assigned to Region 1. (Verified complaint paragraph 64; Exhibit III - Foley affidavit, and Exhibit X a.)

 Plaintiffs Cefalo, John Badoud and Foley

 40. The alleged reprisals and other alleged unlawful acts by defendants, may tend to injure plaintiffs Cefalo, John Badoud and Foley in their election campaign because it may have a stifling effect upon the democratic process at work within District 50 and upon the members' right of free speech. (Verified complaint paragraph 66.)

 Conclusions of Law

 1. This Court has jurisdiction under Sections 609, 102, 101(a)(1), 101(a)(2), 401(e), 401(g), 501(a), and 501(b) of the LMRDA (29 U.S.C. 529, 412, 411(a)(1), 411(a)(2), 481(e), 481(g), and 501(a), 501(b).

 2. The Court find that there is substantial likelihood that plaintiffs will succeed on the merits in proving that:

 (a) Defendants' action in demoting plaintiff De Falco from his position as Regional Director of Region 43 (Chicago, Illinois) of District 50 is an act of reprisal in violation of Section 609 of LMRDA for the exercise of plaintiff's rights, guaranteed by Sections 401(e), 101(a)(1) and 101(a)(2) of LMRDA, to speak freely and support the candidates of his choice for international office.

 (b) Defendant's action in transferring plaintiff Dale Badoud from Kansas City, Missouri, to Oklahoma City, Oklahoma is an act of reprisal in violation of section 609 of LMRDA for the exercise of plaintiff's rights, guaranteed by Sections 101(a) (1) and 101(a)(2) of LMRDA, to speak freely and support the candidates of his choice for international office.

 (c) Defendants' action in intimidating plaintiff Crise is an act of reprisal in violation of section 609 of LMRDA for the exercise of plaintiff's rights, guaranteed by sections 401(e), 101(a)(1) and 101(a)(2) of LMRDA, to speak freely and support the candidates of his choice for international office.

 (d) Defendants' action in demoting plaintiff Gentile from his position as Regional Director of Region 6 (Syracuse, New York) of District 50 is an act of reprisal in violation of section 609 of LMRDA for the exercise of plaintiff's rights, guaranteed by sections 401(e), 101(a)(1) and 101(a)(2) of LMRDA, to speak freely and support the candidates of his choice for international office.

 (e) Defendants' action in transferring plaintiff Sizemore from Region 45 (St. Louis, Missouri) to Region 34 (Columbus, Ohio) is an act of reprisal in violation of section 609 of LMRDA for the exercise of plaintiff's rights, guaranteed by sections 401(e), 101(a)(1) and 101(a)(2) of LMRDA, to speak freely and support the candidates of his choice for international office.

 (f) Defendants' actions in ordering the transfer and subsequently the discharge of plaintiff Galuszka are acts of reprisal in violation of section 609 of LMRDA for the exercise of plaintiff's rights, guaranteed by sections 401(e), 101(a)(1) and 101(a)(2) of LMRDA, to speak freely and support the candidates of his choice for international office.

 (g) Defendants' actions in regard to the individual plaintiffs herein clearly fall within the conclusion reached in Yablonski v. United Mine Workers of America, et al ., 60 L.C.P 10, 312 (Civ. No. 1799-69 D.D.C.): "LMRDA 'guarantees union members a full right to participate in the political affairs of their union and requires elected union officials to act without abusing their positions of trust.' Local 648 v. Retail Clerks International Union, 299 F. Supp. 1012, 70 L.R.R.M. 3366 (D.D.C. 1969). Plaintiff cannot be made to choose between his appointed position and his right to campaign for office and speak freely in support of his campaign. On the verified complaint and affidavits before the Court, plaintiff's removal from his appointed position was clearly intended to force that choice upon him and was unlawful."

 (h) Defendants' actions in ordering travel at union expense for political campaign purposes are in violation of section 401(g) of LMRDA in that they constitute the expenditure of moneys received by way of dues to promote the candidacy of an individual for union office.

 (i) Defendant Moffett's actions in ordering the gerrymander of subdivisions within District 50 for political purposes are in violation of section 501(a) of LMRDA which impresses on union officials a fiduciary duty to manage the affairs of the union for the benefit of the membership.

 (j) Defendants' acts of reprisal against the supporters of plaintiffs Cefalo, John Badoud and Foley in their election campaign are acts of reprisal calculated to discourage support for their candidacy, have a chilling effect upon the democratic process at work within District 50, and are in violation of section 401(e) of LMRDA inasmuch as it guarantees plaintiffs' rights to be candidates for union office.

 3. Plaintiffs Cefalo, John Badoud and Foley will be irreparably injured in their election campaign so long as the alleged unlawful acts herein found are allowed to continue. The remaining individual plaintiffs will be irreparably injured through the damage done to their careers as professional union employees and to their right to speak freely and support candidates of their choice so long as the alleged unlawful acts herein found go uncorrected.

 4. A preliminary injunction should issue.

 Order

 Plaintiff's motion for preliminary injunction having come on for hearing and all parties having been heard, and this Court having made its findings of fact and conclusions of law based on plaintiff's verified complaint, exhibits and affidavits on file, which findings and conclusions are being filed herewith, and due deliberation having been had, it is hereby Ordered, Adjudged, and Decreed:

 1. that a preliminary injunction issue:

 a. directing defendants, The International Union of District 50, United Mine Workers of America and Elwood Moffett, to reinstate plaintiff De Falco to his post as Regional Director, Region 43 (Chicago, Illinois) and to refrain from any attempts during the pendency of this action to remove plaintiff from said position or to prevent him from performing the duties of said position except for good and sufficient cause; and from instituting any further measures during the pendency of the action against plaintiff on account of his exercising any rights conferred upon him by the aforementioned provisions of the Labor-Management Reporting and Disclosure Act of 1959.

 b. directing defendants, The International Union of District 50, United Mine Workers of America and Elwood Moffett, to return plaintiff Dale Badoud to his duties as an International Representative assigned to Region 55 (Kansas City, Missouri) in Kansas City, Missouri, and to refrain from any attempts during the pendency of this action to remove plaintiff from said position or to prevent him from performing the duties of said position except for good and sufficient cause; and from instituting any further measures during the pendency of this action against plaintiff on account of his exercising any rights conferred upon him by the aforementioned provisions of the Labor-Management Reporting and Disc Union of District 50, United Mine Workers of America, from any unlawful interference with plaintiff Frank Crise in the performance of his duties as Regional Director of Region 45 (St. Louis, Missouri); except for good and sufficient cause and from instituting any further measures during the pendency of this action against plaintiff on account of his exercising any rights conferred upon him by the aforementioned provisions of the Labor-Management Reporting and Disclosure Act of 1959.

 d. directing defendants, The International Union of District 50, United Mine Workers of America, to reinstate plaintiff Joseph A. Gentile, Jr., to his position as Regional Director of Region 6 (Syracuse, New York) and restraining defendants from any attempts during the pendency of this action to remove plaintiff from said position or to prevent him from performing the duties of said position except for good and sufficient cause; and from instituting any further measures during the pendency of this action against plaintiff on account of his exercising any rights conferred upon him by provisions of the Labor-Management Reporting and Disclosure Act of 1959.

 e. directing defendants, The International Union of District 50, United Mine Workers of America, and Elwood Moffett to return plaintiff Burlie E.Sizemore to his duties as Assistant Regional Director, Region 45 (St. Louis, Missouri), and to refrain from any attempts during the pendency of this action to remove plaintiff from said position or to prevent him from performing the duties of said position except for good and sufficient cause; and from instituting any further measures during the pendency of this action against plaintiff on account of his exercising any rights conferred upon him by the aforementioned provisions of the Labor-Management Reporting and Disclosure Act of 1959.

 f. directing defendants, The International Union of District 50, United Mine Workers of America and Elwood Moffett to restore and reinstate plaintiff Edward J. Galuszka to his post as International Representative in Region 1 (Boston, Massachusetts) and to refrain from any attempts during the pendency of this action to remove plaintiff from said position or to prevent him from performing the duties of said position except for good and sufficient cause; and from instituting any further measures during the pendency of this action against plaintiff on account of his exercising any rights conferred upon him by the aforementioned provisions of the Labor-Management Reporting and Disclosure Act of 1959.

 g. restraining defendants, The International Union of District 50, United Mine Workers of America, and Elwood Moffett from (i) any transfers of personnel employed by defendant The International Union of District 50, United Mine Workers of America, as an act of reprisal against them on account of their exercising any rights conferred upon them by the aforementioned provisions of the Labor-Management Reporting and Disclosure Act of 1959, (ii) any demotions or discharges of or other interference with the personnel employed by defendant The International Union of District 50, United Mine Workers of America, as an act of reprisal against them on account of their exercising any rights conferred upon them by the aforementioned provisions of the Labor-Management Reporting and Disclosure Act of 1959, (iii) any gerrymander of the subdivisions of The International Union of District 50, United Mine Workers of America, and to that end, merge Region 25 into Region 1, and Region 37 into Region 63; (iv) any expenditure of the funds of The International Union of District 50, United Mine Workers of America, through salary payments, or otherwise, which are chiefly or solely devoted to the pursuit of the personal political goals of defendant Elwood Moffett.

 2. That this preliminary injunction is granted on condition that a bond in the sum of $1,000.00 be filed to make good such damages not to exceed such sum as may be suffered or sustained by any party who is found to be wrongfully enjoined or restrained.

19700129

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