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HODGSON v. UMW

May 1, 1972

James D. Hodgson, Secretary of Labor, United States Department of Labor, Plaintiff
v.
United Mine Workers Of America, Defendant Mike Trbovich, Intervenor


Bryant, D.J.


The opinion of the court was delivered by: BRYANT

This action was instituted by the Secretary of Labor, United States Department of Labor, as plaintiff, under Titles II and IV of the Labor-Management Reporting and Disclosure Act of 1959 (29 U.S.C. § 401 et seq.), hereinafter referred to as the Act, *fn1" for a judgment declaring the election held by the United Mine Workers of America, hereinafter referred to as the defendant or the UMWA, on December 9, 1969, null and void and directing the conduct of a new election under the supervision of the plaintiff, and for an order directing and compelling defendant and its subordinate districts to maintain records as required by Section 206 of the Act (29 U.S.C. § 436).

 On January 17, 1972, the United States Supreme Court granted Mike Trbovich, a member in good standing of the UMWA, leave to intervene in the Title IV aspects of this action under Rule 24(a) of the Federal Rules of Civil Procedure. Trbovich v. United Mine Workers of America, 404 U.S. 528, 92 Supreme Court 630, 30 L. Ed. 2d 686 (1972), and he thereafter fully participated in this action, through counsel, as a party plaintiff. Defendant, an unincorporated association engaged in collective bargaining, is an international labor organization engaged in an industry affecting commerce within the meaning of the Act, and maintains a principal office at 900 -- 15th Street, N.W., Washington, D.C., within the jurisdiction of this court.

 Structurally the UMWA is a three-tiered organization composed of the International, Districts and Local unions. It has twenty-three districts and between 1290 and 1300 locals, with a total membership variously estimated to be between 193,000 and 200,000 in the United States and Canada. Of this number approximately 120,000 are actively engaged in mining coal and the remainder are retired pensioners. At the International level the president shares the responsibility of general supervision of the union with the International Executive Board. The districts are intermediate organizations having supervision over the local unions within their geographical boundaries, thus constituting a direct link between the International and the locals, inasmuch as the International Executive Board members are chosen from the districts. Of the districts, only four are autonomous; two are semiautonomous and the remainder are provisional districts. In autonomous districts the local union members elect both the district officers and the International Executive Board members. In semiautonomous districts the officers are appointed by the International President and the International Executive Board member is elected by the local union members. In the provisional districts, i.e., those in trusteeship, the officers are appointed by the International President and the Executive Board members are elected by the International convention. The International President appoints the nominating committee which presents the slate of candidates for the International Executive Board to the convention, and there has never been any opposition to the slate presented to the convention by the nominating committee. Thus it appears that for all practical purposes the International Executive Board members are chosen by the president. The authority to hire and fire most of the district personnel and International representatives puts almost complete control of the entire union in the hands of the president.

 On December 9, 1969 the defendant held a regularly scheduled election of International officers, i.e., president, vice-president, secretary-treasurer, auditors, and tellers. The defendant's constitution requires that the election of International officers be conducted in each of its local unions, and clearly indicates that the local union election officials are agents of the International in the conduct of the election and accountable to it for any misconduct.

 W.A. "Tony" Boyle, President, George J. Titler, Vice-President, and John Owens, Secretary-Treasurer, were candidates for reelection. On May 29, 1969 Joseph A. Yablonski publicly announced his candidacy for the presidency of the union, and the subsequent election campaign was primarily a bitter confrontation between him and Boyle. The entire Boyle slate was successful, including the candidates for International auditor and credential committee and International tellers. The results of the election were: for president, Boyle 80,577, Yablonski 46,073; for vice-president, Titler 77,379, Elmer Brown 45,151; for secretary-treasurer, Owens 102,346. Owens had been unopposed for reelection.

 Alleging numerous violations of the Act and also the UMWA constitution, Yablonski filed an internal challenge to the election results with the International tellers and notified the three principal officers that he intended to present his protest to the next meeting of the International Executive Board as a further step in exhausting his internal remedies as required by the Act (Section 402(a) of the Act) 29 U.S.C. § 482(a).

 Joseph Yablonski, his wife and daughter were found murdered in their home on January 1, 1970.

 On January 8, 1970 defendant's general counsel, acting on behalf of the defendant, requested an immediate investigation of the election by the United States Department of Labor, waiving post election exhaustion of internal remedies required by Section 402(a) of the Act (29 U.S.C. § 482(a)). After the official report of the results of the election had been issued, Mike Trbovich, a member in good standing of defendant, through counsel, filed a written complaint with the Secretary of Labor challenging the conduct of the December 9, 1969 election of officers in which he incorporated by reference the complaint filed on December 18, 1969 by Yablonski. Plaintiff, in accordance with the provisions of the Act, immediately conducted an investigation of the complaints and found probable cause to believe that violations of Title IV of the Act had occurred in the conduct of the election at all levels of the union, and had not been remedied at the time of the filing of this action; and in addition that defendant had failed and was still failing to maintain records and to require its subordinate districts to maintain records on matters required to be reported under Title II of the Act (29 U.S.C. § 431 et seq.), which provides that labor organizations subject to the Act retain the necessary basic information and data from which documents filed with the plaintiff may be verified, explained or clarified and checked for accuracy and completeness as required by Section 206 of the Act (29 U.S.C. § 436). Thereupon this suit was filed.

 One of plaintiff's principal reasons for asking that the election results be declared null and void is that the defendant used union assets to promote the candidacy of its incumbent International officers. This allegedly occurred through misuse of the union's Journal, the purchase and distribution of campaign materials, the manipulation of salary increases to its employees, and various other ways. The defendant denies any wrong doing in this regard, and claims that in most instances the matters complained of were nothing more or less than normal and traditional union activity.

 THE JOURNAL

 The United Mine Workers Journal is the official publication of the UMWA and is published and distributed free semi-monthly to the entire membership by a printing company which is furnished with a mailing list for that purpose. All this is completely financed by union funds. The editor of the Journal is an experienced journalist who serves at the pleasure of the International Executive Board which in turn has full power to decide all questions concerning publication, business management and policy. Journalistic policy is subject to the direct influence of President Boyle.

 The election of 1964 marked the first time in the history of the union that the International President had been challenged. At that time, though not a serious threat to Boyle, a virtual unknown named Steve "Cadillac" Kochis did run against him. Although the Yablonski candidacy did not surface until May 29, 1969, the incumbent president knew as early as February 1969 that there were two contenders for his office: the same Steve "Cadillac" Kochis, and yet another, named Elijah Wolford.

 Beginning with the March 1, 1969 issue and continuing until enjoined by the issuance of a restraining order by Judge Waddy of this court on August 28, 1969, the type of coverage given to the International officers by the Journal clearly supports the charge that it was a campaign instrument for the incumbents. The issues from March 1 through June 1 are replete with speeches, statements and pictures of Boyle, Titler and Owens. The April 15 issue even carried a convention song for Tony Boyle to be sung to the tune of "Hello Dolly," the first verse of which is

 
"Hello Tony and Hello Johnny, and Hello to Big George Titler, too.
 
You're looking great fellows, We're feeling great fellows to be led by men the likes of all of you."

 A none too subtle clue to the determination to use the Journal as an effective campaign sheet is revealed when we note that up to the time Yablonski announced his candidacy he had been mentioned and pictured in the Journal on several occasions. Thereafter we have an entirely different picture. Although admittedly newsworthy because of his prestigious position in the UMWA, Yablonski's announcement of his candidacy, though featured in the commercial press, was accorded not one word of mention in the Journal.

 In the five issues from June 15 to September 15 there were no less than 166 references to Boyle, most of them in bold face type along with 16 pictures depicting his various activities. Again it is noted that although there were many references to Boyle's activities in support of the then pending health and safety bills, no mention was made of Yablonski's similar activities as head of the Non-Partisan League, even though the editor of the Journal later conceded that Yablonski had been very active in the long and tedious legislative efforts to get the union's bills through the Congress. In addition there were items which extolled the extraordinary leadership capabilities of Mr. Boyle, comparing him favorably with the late John L. Lewis, and urging the membership to stand behind the officers whom Mr. Lewis personally selected to guide the destiny of the UMWA. True it is that no editorials appeared in the UMWA Journal which directly endorsed Mr. Boyle for reelection or attacked Yablonski's candidacy, but the purpose of the literal saturation of the Journal with items pointing up the day-to-day accomplishments and the great leadership potential of Boyle is clearly discernible. In determining that the Journal was used as a campaign instrument for the incumbents, and particularly as to President Boyle, this court has considered the same factors as did Judge Pratt when he granted the preliminary injunction against its continued use as such, Yablonski v. UMWA, 305 F. Supp. 868, 871 (D.D.C., 1969); and draws the same line that he drew "between the use of the Journal to report the activities of defendant Boyle as President, which is permissible and the use of the Journal in such a way in reporting such activities as to promote his candidacy." Both on the grounds of comity and the evidence adduced in the trial, the court finds that the Journal was used as a campaign tool during a critical period of the election campaign, thus constituting a violation of Section 401(g) of the Act. When we take into account the widespread free distribution of the Journal as the official publication of the union to all its members -- working and retired alike -- the harmful effect of its misuse over a six-month period is far more than a mere possibility. It may well have accomplished its obvious purpose of affecting the outcome of the election.

 CAMPAIGN MATERIALS

 On October 6, 1969, just two months before the December 9, 1969 election, and at the height of the campaign, the UMWA ordered 5,000 pens from Art Enterprises, an advertising counselling firm. The pen is a ball-point T-ball jotter with a sleeve window in the side, and when the plunger at its top is pressed the names of Boyle, Titler and Owens and the United Mine Workers appear in the window in successive order. These items cost $9,085.00 and were paid for from UMWA funds. The purchase order was placed by Howard W. Channel, the Assistant to the Secretary-Treasurer of the UMWA, who stated that he did so pursuant to instructions given to him by John Owens, International Secretary-Treasurer. The pens were similar to some which had been distributed at the 1968 convention as souvenirs and several defense witnesses insisted that the October 6, 1969 order was not for the purpose of campaigning, but solely for the purpose of fulfilling demands for additional convention souvenirs. However all of the other evidence in the case relative to this issue points to another objective.

 The order was not placed until 13 months after the convention, and when Channel was asked why this was not done much earlier if the purpose was merely to fulfill demands from the field for souvenirs his only explanation was that he was following the instructions of John Owens. Additionally there was testimony that the pens were issued only to those union officials who were Boyle loyalists. William Rosser, the operator of Art Enterprises, testified that Channel asked him how long it would take to fill the order, and when told that it would take five weeks asked for delivery on a sooner date. Rosser further testified that Channel stated to him that he wanted delivery to coincide with the campaign. The pens were distributed in November during the final phase of the campaign. The timing of both the order and distribution of these pens demonstrate the true motive for their acquisition. As a matter of fact one defense witness testified that he picked up some of them along with other campaign materials in the district office and that he used them for campaign purposes. In these circumstances the purchase of these pens constituted an improper expenditure of union funds, and thus another violation of Section 401(g) of the Act.

 SALARY INCREASES

 Plaintiff claims that the defendant committed another violation of Section 401(g) of the Act by awarding salary increases to persons on its payroll for the purpose of securing their support for the incumbent officers. The defendant denies this accusation and contends that the salary increases were merely in conformity with a long standing UMWA tradition of increasing salaries of their union personnel as they obtain wage increases for their members from the coal operators. The circumstances surrounding the increases appear to be much more helpful to the proper resolution of this issue than the direct testimony relative to the reasons therefor.

 The miners received salary increases of $1 per day on April 2, 1964, and a like amount on January 1, 1965. A salary increase of $1,000 for the officers and $600 for other employees of the union was effected on April 1, 1965, one year after the 1964 increase and three months after the one in 1965. April 1, 1965 was the day President Boyle was inaugurated for his first full term as president of the UMWA. The miners received an increase of $1 per day on April 1, 1966 and another increase of $3 per day on October 1, 1968. The officers and employees of the defendant received no increases during those years. On April 1, 1969 the administrative officers of the union received a $1,000 per year raise and the clerical staff one of $600.

 Elijah Wolford had announced his candidacy for the presidency of the UMWA on March 20, 1969, and the aspirations of Kochis for the same office were well known by that time. This April 1, 1969 increase for those on the union payroll was the first in four years, and followed the 1966 raise for the miners by three years and the 1968 raise for the miners by six months. In explanation of the obvious deviation from the alleged traditional policy of tieing union employee pay raises to wage increases obtained for the miners, Mr. Owens, defendant's secretary-treasurer, stated that the International officers were "derelict in their responsibility to give them an ...


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