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March 25, 1970

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

Parker, District Judge.

The opinion of the court was delivered by: PARKER

PARKER, District Judge.

Memorandum Opinion

 The International Union of District 50, United Mine Workers of America (hereinafter called District 50) and its President, Elwood Moffett, are defendants in a Complaint filed by certain International Officers and staff officials, all members of the Union, who allege violations of the Labor-Management Reporting and Disclosure Act of 1959 (LMRDA), 29 U.S.C. Sec. 401 et seq.

 The plaintiffs Angelo J. Cefalo, William J. Foley and John J. Badoud are candidates for the international offices of President, Vice-President and Secretary-Treasurer, respectively. They have formed a slate (hereinafter called CFB slate) and seek to be elected under a referendum vote of the Union membership scheduled for May 12, 1970. The remaining plaintiffs, supporters of the slate, are members of and are employed by the Union as Regional Directors, Assistant Regional Directors, International Representatives, or Special Representatives.

 The defendant, District 50 is a labor organization within the meaning of the above statute. The defendant, Elwood Moffett, is the incumbent President of District 50 and also a candidate for re-election.

 In mid-November 1969, plaintiffs Cefalo, Foley and John J. Badoud announced officially their candidacy for the three international offices. On December 23, 1969, plaintiffs filed with this Court their complaint, application for temporary restraining order, and motion for a preliminary injunction against the Union and its President alleging that provisions of LMRDA had been violated by Moffett and that rights guaranteed to them as members and officers under the Act had been denied by him, all resulting from their support of an opposition slate of candidates.

 The plaintiffs sought an injunction against Moffett and the International Union, prohibiting certain allegedly improper actions, a declaratory judgment defining Moffett's powers as President and damages.

 On January 29, 1970, after a hearing, Judge Sirica of this Court issued a preliminary injunction together with findings of fact and conclusions of law and an accompanying order. Those findings were not conclusive (Findings 10, 14, 19, 23, 26, 31, 33, 36, 38, and 39) but stated that they were the plaintiffs' contentions.

 The defendants promptly appealed to the United States Court of Appeals for the District of Columbia Circuit requesting, among other things, a stay of that Order. On February 5, 1970, after argument, the Appellate Court entered a per curiam order denying the stay. It ruled, however, "In view of the urgency to have this matter finally decided on a full record, pending the appeal from the preliminary injunction we remand the record in this case back to the District Court for a trial and decision on the merits forthwith."

 The actions which form the gravamen of the plaintiffs' charges may be grouped under three classifications: (1) decisions of Moffett, affecting personnel which were a denial of equal rights, free speech and in effect "reprisals" against the plaintiffs because of their political activity in support of candidates for office; (2) a breach by Moffett of the fiduciary duty to manage the Union's affairs for the benefit of the membership by dividing or "gerrymandering" Regions for the benefit of his political campaign; (3) use of Union funds by Moffett to promote his candidacy in the scheduled election.

 Plaintiffs claim violations of Title I, Sections 101(a)(1)(2) and 102; Title IV, Sections 401(e)(g); Title V, Sections 501 (a)(b); Title VI, Section 609 of the Act. 29 U.S.C. Sections 411(a)(1)(2), Section 481(e)(g); Sections 501(a)(b); Section 529.

 For reasons which follow, the Court finds that the decisions of Moffett affecting the official rank and assignment of certain plaintiffs violated their rights as guaranteed under LMRDA. However, as to the remaining charges the Court finds that the plaintiffs did not meet the burden of proof.


 First to be considered are the directives of Moffett effecting changes in personnel which the plaintiffs claim denied them equal rights and privileges and the freedom of speech and assembly.

 They assert that certain personnel actions by the defendant Moffett were in fact "reprisals" because of their active advocacy of the slate of officers challenging Moffett's leadership at the election scheduled for May 12, 1970. Specifically, it is alleged that Joseph De Falco and Joseph A. Gentile, Jr. were demoted from their position as Regional Directors to lesser assignments; Burlie E. Sizemore, an Assistant Regional Director, was transferred to another region without justification; Dale T. Badoud, an International Representative, was reassigned without justification by his Regional Director who was a Moffett supporter; Edward J. Galuszka, an International Representative, was wrongfully dismissed upon refusing to accept an assignment out of his region.

 In this same connection, plaintiffs also contend that in the area where Frank Crise was Regional Director, that Moffett, without justification and contrary to established practice, instituted personnel changes without consultation and otherwise infringed on his prerogatives as Regional Director.

 The Constitution of District 50 defines the authority of the President with respect to personnel actions. *fn1" He is permitted to fill all vacancies occurring in any International Office; to suspend or remove any International Officer or appointed employee for insubordination or cause; to appoint Regional Directors, International Representatives and other field and office workers as he may determine necessary to conduct the Union's affairs. (Article VII, Sections 2, 3 and 4).

 Further, the Constitution provides that all of such appointments, suspensions and removals from office by the President are subject to the approval of the International Executive Board. (Article VII, Section 12)

 With respect to the plaintiffs De Falco, Gentile, and Sizemore the Court rejects the justification given by Moffett for their demotions and transfer and finds that from the record the preponderance of the testimony and evidence demonstrates that such actions were, in fact, "reprisals" resulting from their political activity. No merit is found in the Badoud and Galuszka claims. The Court finds that the Crise complaints are substantiated by the record.

 The Demotion of Joseph De Falco

 De Falco was demoted from the directorship of the Chicago, Illinois Region and reassigned as a Special International Representative.

 He was first employed as an International Representative in 1964, and within a span of six years received successive promotions to Special Representative, Assistant Regional Director and Regional Director. ...

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