important person in the Union and his presence in St. Louis under such circumstances was undoubtedly to convey the thought to Crise that support of the Moffett slate was expected of him.
The Court does, therefore, find that the preponderance of the evidence supports plaintiffs' contention that the above actions infringed upon Crise's prerogative as Regional Director,
intimidated him in the exercise of his right to support candidates of his choice and to express his views, and otherwise carried implied threats of reprisal for failure to act in accord with Moffett's desires.
The Constitution of District 50 grants authority to the President to suspend or remove personnel for insubordination or just cause; to appoint, at his discretion, field and office workers, and to otherwise exercise general supervision over the field and office affairs. (Article VII, Sections 2, 3, and 4).
Prior to 1959, union members who voiced opposition to the improper exercise of such power might have exposed themselves to the risk of demotion, suspension or dismissal, frequently without effective redress. Today, however, the exercise of power by union officials must be consistent with the LMRDA's "Bill of Rights" and the policy considerations underlying those provisions.
The language of that Section and the interpretation given by the Courts leave little doubt that the actions taken by Moffett against De Falco, Gentile, Sizemore and Crise were well within the protective ambit of LMRDA.
The increasing number of decisions dealing with equal rights, freedom of speech and assembly, and the disciplining of a member seeking participation in the Union's democratic processes, have followed an ever-widening interpretation. Such rulings have been made in this as well as in other jurisdictions. Grand Lodge of Internat'l Ass'n of Machinists v. King, 335 F.2d 340 (9th Cir. 1964) cert. denied, 379 U.S. 920, 85 S. Ct. 274, 13 L. Ed. 2d 334 (1964); Salzhandler v. Caputo, 316 F.2d 445 (2d Cir. 1963); Retail Clerks Union, Local 648 v. Retail Clerks Int. Ass'n, 299 F. Supp. 1012 (D.D.C. 1969); DeCampli v. Greeley et al., 293 F. Supp. 746 (D.N.J. 1968); Alvino v. Bakery Workers Union, 46 L.R.R.M. 2812 (D.D.C. 1960).
Defendants assert that the plaintiffs were required to exhaust the internal remedies available under the Constitution before filing this proceeding. They argue that an appeal should have been undertaken first to the International Executive Board of District 50 and that Section 101(a)(4) of the Act specifically requires exhaustion of union hearing procedures.
While the exhaustion of internal union hearing procedures is normally required in order that the effectiveness and integrity of those procedures might be protected, a failure to exhaust them does not invariably foreclose judicial review of alleged grievances. A Union member seeking vindication of his Title I rights need not exhaust internal procedures where he might be prejudiced by the delay involved, where the Union's appellate body might be biased, or where the internal procedures might themselves be inadequate. Fulton Lodge No. 2 of the International Ass'n of Machinists and Aerospace Workers v. Nix, 415 F.2d 212 (5th Cir. 1969); Detroy v. American Guild of Variety Artists, 286 F.2d 75 (2d Cir. 1961); Sheridan v. Liquor Salesmen's Union, Local 2, 303 F. Supp. 999 ( S.D.N.Y. 1969, 72 L.R.R.M. 2227); Tirino v. Local 164, Bartenders and Hotel & Restaurant Employees Union, 282 F. Supp. 809 (E.D.N.Y. 1968). See also NLRB v. Industrial Union of Marine and Shipbuilding Workers, 391 U.S. 418, 20 L. Ed. 2d 706, 88 S. Ct. 1717 (1968). Even the majority of those cases urged by the defendant support such a reasonable approach. Baron v. North Jersey Newspaper Guild, Local 173, 342 F.2d 423 (3rd Cir. 1965); Harris v. International Longshoremen's Ass'n, Local 1291, 321 F.2d 801 (3rd Cir. 1963). In this proceeding, the plaintiffs' failure to exhaust internal remedies, inadequate as they are, is excusable because of the continuing difficulties between the parties, the domination by Moffett of the Executive Board, and the irreparable harm that delay may cause in view of the approaching election.
The remaining allegations in the complaint relate to Moffett's alleged breach of his fiduciary duty by his "gerrymandering" of regions and his diversion of Union funds, both for purposes of his political campaign. The Court concludes that the facts do not justify findings for the plaintiffs on either of these issues, consequently it is unnecessary to consider the question of what power this Court has to correct the alleged "gerrymandering" or to rectify Moffett's alleged diversion of Union funds and personnel to promote his candidacy.
" Gerrymandering " Of The Regional Office
On two occasions subsequent to the announcement of the plaintiffs' slate, Moffett created two District Regions out of what had been one, and in the newly established Regions appointed Directors who were allegedly favorable to his candidacy. In one instance Region 37 (Ludington, Michigan), was created from part of Region 63 (Saginaw, Michigan) and in a later instance, Region 25 (Providence, Rhode Island) out of Region 1 (Boston, Massachusetts).
The President's authority to make such decisions appears consistent with the provision of the Union's Constitution authorizing him to define areas of field operations and regions as necessary to conduct the affairs of the Union and to exercise general supervision over the field and office workers. (Article VII, Sections 4 and 11).
The plaintiffs label this as "gerrymandering," designed to dilute the influence of their slate in Regions where they had considerable support. The evidence showed, however, that these newly created Regions had actually existed before, and that it was not uncommon for the geographical boundaries of a Region to be changed from time to time on grounds of economy, efficiency of operation, or as otherwise warranted by the demands of changing circumstances. While plaintiffs may claim that this was an assertion of raw power by Moffett the evidence falls far short of such proof. Moreover, the reasons given by Moffett to support his decision were reasonable and sound. This, together with his testimony relating to the history of prior changes undertaken by him, similar in nature in the same and other Regions, compels a finding that there was not here a calculated design to lessen the impact of the plaintiffs' slate. It is understandable that political motives were attributed to Moffett but the Court finds that his decisions were fully justified and supported by substantial evidence.
Improper Use Of Union Funds
Among their claim for damages, plaintiffs refer to trips of various Union officials, which they assert were arranged and authorized by Moffett to impede the progress of their slate or to promote the candidacy of Moffett.
The testimony covered three allegations: First, that the plaintiff, Crise, was ordered to Washington for several days by Moffett specifically to keep Crise away from his Region while certain locals were making nominations for candidates in the May election. Secondly, that a trip to the Newark, New Jersey Regional Office by Oshinski, an Assistant to Moffett, was solely to promote Moffett's candidacy and was an improper use of Union funds. And thirdly, that Ford, an Assistant to Moffett was improperly assigned to the St. Louis, Missouri Regional Office for a similar purpose.
The evidence does not support any of these allegations. While the testimony that Crise was in Washington for two days and conferred with Moffett for only one hour was not successfully contradicted, there was no credible testimony to support the conclusion that this was a maneuver designed by Moffett. Nor was there credible testimony that even if Crise had been present in his Region he could have attended all of the local meetings or that the voting at the locals was influenced in any way by his absence.
None of the testimony concerning the Oshinski visit to the Newark, New Jersey Office warrants a finding that it was for other than legitimate Union purposes. Even though the testimony shows that when Ford was in the St. Louis Region, he actively solicited support for Moffett's candidacy, the evidence also shows that the local supporters of the CFB slate did likewise. A consideration of the entire testimony fails to disclose any substance to the allegation that Ford's trip was designed primarily to promote Moffett's political candidacy.
Further issues to be determined are whether the specific personnel actions of Moffett affecting the plaintiffs De Falco, Gentile, Sizemore and Crise were accompanied by an improper use of Union funds and a resulting breach of Moffett's fiduciary duty to the Union and to the plaintiffs. 29 U.S.C. § 501(a)(b). John J. Badoud, a plaintiff and the Union's Secretary-Treasurer, testified as to certain expenses incurred by these plaintiffs, all paid by the Union, and allegedly stemming from Moffett's actions. His testimony was fragmentary, and inconclusive and the Court is not convinced that the amounts claimed may be attributed substantially to Moffett's improper action. The Court denies the claim and it is, therefore, unnecessary to consider the exhaustion of remedies requirement of § 501. The Court, likewise, finds no basis for granting the plaintiffs either compensatory or punitive damages.
Since the personnel actions taken against De Falco, Gentile and Sizemore, and the interference with Crise were substantially political reprisals designed to undermine the rights of those plaintiffs, the CFB slate, and its supporters, the Court will order that the demotions of De Falco and Gentile, and the transfer of Sizemore be set aside with reinstatement of any accompanying rights and benefits they might have lost. Further, the Court will order that the defendants cease and refrain from threatening or actually interfering with, coercing or penalizing, in any manner, the rights of De Falco, Gentile, Sizemore, Crise, the CFB slate, or any of its supporters.
Both as appropriate statutory relief to the plaintiffs, and because of the indirect benefit to the Union and its members as a whole, the Court will award counsel fees to the plaintiffs, the amount to be determined in subsequent proceedings.
This Memorandum Opinion shall constitute the findings of fact and conclusions of law. Counsel will prepare an appropriate order within five days.