contributors. Those in the highest bracket, i.e., International Executive Board members, district presidents and secretary-treasurers, almost invariably gave $1,000. International representatives and district representatives almost always gave $500. Some contributors conceded the relationship between their salary bracket and the amount of their contribution.
Turning to another aspect of these donations we find that those of eleven individuals employed in District 25 all arrived at the Miners' Committee's office in Washington, D.C. on October 13, 1969. The contributions of the fourteen individuals employed in District 31 arrived on September 19, 1969, and those from District 29's fourteen employees were received on September 9, 1969, and those of the nine employees of District 19 on August 13, 1969.
A similar relationship between salary and the amount of the contribution is seen in the financing of the various district-wide committees formed to support the Boyle-Titler-Owens slate. Except for two individuals in District 17 all donations to the committees operating in Districts 2, 5, 17, 25 and 31 were made by individuals on the payroll of the UMWA or of one of the districts. In each case the contributions of the district officers were significantly higher than those of the lower paid staff members. Temporary, as well as permanent employees were found on the list of contributors. One of these, a Charles Culp, testified that President Pnakovich of District 31 made it clear that his continued status on the District's payroll was contingent upon his willingness to contribute his so-called fair-share of $175 to a $5,000 personal note signed by the District's officers, the proceeds of which were used to defray campaign expenses. Pnakovich conceded that he expected all paid employees in his District to contribute to the repayment of that $5,000 and that he had made them aware of his expectations.
Shortly after the announcement of the retroactive wage increase of 1970, the political committees organized to support the Boyle-Titler-Owens slate in Districts 17, 29 and 31 repaid debts incurred by reason of their activities in the election campaign.
Defendant urges that the salary increases were justified and consistent with union policy; and that all of the campaign contributions were spontaneous and voluntary. It ascribes mere coincidence to the fact that the last two salary increases -- though the first in four years -- were only eight months apart and bracketed the successful election campaign of its incumbent officers. The same explanation is suggested for the marked similarity in amounts of the donations and the unusual simultaneity of their receipt from the various districts.
But these circumstances cannot be so easily discounted. All of the evidence on this issue seems to indicate that there was no tradition of salary increases for union employees paralleling wage increases obtained for the miners; or if there in fact was such a tradition, defendant completely ignored it during Mr. Boyle's regime as president. On the other hand there is a clearly indicated tie-in of the union raises, not to the wage increases for the miners, but rather to the election years for the International officers. The court finds that the defendant timed and manipulated the salary increases for the purpose of throwing them into the election year in an effort to attract the support of its employees for the incumbent officers in terms of services and financial aid. This conclusion is even more compelling when we consider these salary increases in the light of the other violations of Section 401(g) of the Act, (29 U.S.C. § 481(g), out of which emerges a demonstrated pattern of using union assets for the purpose of insuring reelection. This further violation of the Act obviously was calculated to affect the outcome of the election, and may very well have done so.
Plaintiff alleges that the defendant frustrated Yablonski in his efforts to cover the polls with his observers, and cites this as a major violation of another section of the Act, and one which most likely affected the outcome of the election.
The UMWA constitution sets out the procedures for the nomination and election of the International officers. The polling takes place at the local unions and the officers of the locals are designated as agents of the International in carrying out the procedures set out in the constitution and the special instructions given them by the International. The officers are personally responsible for any irregularities which may take place in the local unions during the election and may be fined, suspended or expelled by the International for any transgressions. The ultimate responsibility for the conduct of the election and to see to it that the requirements of the Act are carried out rest with the International union.
Section 401(c) of the Act (29 U.S.C. § 481(c)) provides:
". . . Adequate safeguards to insure a fair election shall be provided, including the right of any candidate to have an observer at the polls and at the counting of the ballots."
Observers to oversee the conduct of the voting procedures and the counting of ballots are considered necessary in any election whether national, state, local or otherwise, and are almost invariably specifically provided for by statute or regulation or an organization's constitution. That the importance of election observers was fully appreciated by the defendant is demonstrated by the fact that the president of its District 17 sent out letters to the officers of all the locals directing them to appoint observers for Boyle.
As has been mentioned, the great majority of the districts were in trusteeship, with their officers appointed by the International President, as were the International representatives assigned to the district. The almost 1300 locals where the balloting was to take place were scattered from the east coast to the Rocky Mountain region, many of them in isolated areas. In these circumstances it seems that an affirmative duty is on the International union to provide a modicum of cooperation with an adversary candidate in establishing a procedure which will give him a fair opportunity to place his observers at the polls in order that he may have the protection afforded by the Act. Otherwise, both the letter and the spirit of the Act are undercut.
But this cooperation was not forthcoming. Although it was known that the election was to take place on December 9, 1969, the particular site and hour of the polling was left to the discretion of each local union. Few of the locals had a regular meeting place. Communications from the International were usually addressed to the recording secretary or financial secretary. Many of the locals voted at the mine itself, which might be at some remote place many miles from the address of the local. Many mines had several portals at considerable distances from each other and as many as three shifts, so that there could be any combination of times and places for voting. Obviously no candidate could hope to recruit several thousand observers and get them prepared to be at their stations unless he was assured that he would have some means of determining in advance of election day the time and place of the polling at the various locals.
Yablonski could not obtain the addresses of the various locals from the International, nor was he given any information as to the polling places of the 1964 election which might have been helpful in determining where the polling places for the current election might have been. Finally he decided to write directly to the locals requesting that they inform him of the time and place of the voting. On October 30, 1969 Yablonski delivered to the office of the International union envelopes to be mailed to all local unions. Each envelope contained a form letter addressed to the recording secretaries, and local union officers with a self-addressed post card. The letter requested that the time and place of the balloting be entered on the self-addressed post card and the card be returned. The envelopes were delivered to the International headquarters where an assistant to the secretary-treasurer addressed and mailed them to the local unions. Of 1299 letters and post cards sent out to the locals, only about 300 were returned to Yablonski. By his own efforts and those of his associates Yablonski was able to discover approximately 200 additional polling places. Thus at the time of the election he had between fifty and sixty percent of the total number of locals covered by observers.
When an officer of one of the locals called the general counsel of the UMWA and inquired as to whether he should fill out and return the post card which had been requested by Yablonski, he was told that the United Mine Workers of America took no position on the matter and that he should use his own judgment. The failure and refusal of the UMWA to assume any responsibility for providing sufficient information to Yablonski for him to avail himself of the opportunity to cover the polls with observers constitutes a flagrant violation of the Act which may have had an effect on the outcome of the election.
Plaintiff claims that Yablonski's removal from the directorship of Labor's Non-Partisan League was a reprisal action for his candidacy and thus a flagrant violation of Section 401(e) of the Act (29 U.S.C. § 481(e)).
On April 17, 1969 President Boyle appointed Yablonski as Acting Director of Labor's Non-Partisan League, a division of UMWA, effective May 1, 1961. The League is the legislative arm of the union and its principal function is to lobby for legislation favored by the union. The Director of the League is an important and prestigious position, and this was especially true at the time in question because there was then pending in Congress legislation providing for increased safety measures in the mines.
On June 6, 1969, scarcely a week after his announcement as a candidate, and without any prior warning or notice, Yablonski was removed from his position as Acting Director of Labor's Non-Partisan League by his election opponent, Boyle, and ordered to report and work under the direction of a subordinate officer, Michael Budzanoski, President of UMWA District 5, and a leading Boyle loyalist. This was accomplished by a letter from Boyle to Yablonski in which the assertion was made that the latter was "unable to spend more than an hour or so a day on the job." Boyle refused to respond to several letters of inquiry from Yablonski relative to his dismissal, and at a June 23, 1969 meeting of the International Executive Board obtained approval of his action in relieving Yablonski from his position, but on the entirely different ground that Yablonski had issued a public statement in which he opposed union policies regarding certain mine safety regulations. Shortly thereafter Yablonski brought suit in this court for an injunction to restrain Boyle from relieving him from his position as Acting Director and reinstate him to the same. During the course of that litigation, in response to an inquiry relative to Boyle's firing and transferring Yablonski without notice or warning, Boyle stated, "Mr. Yablonski was on notice, plenty of notice. He gave his own warning on May 20." This was the day when Yablonski announced his candidacy. In the reinstatement suit, which was heard by Judge Corcoran, the defendant union maintained that Yablonski was removed because he favored tougher and stronger mine health and safety legislation than the defendant and its officers advocated for tactical reasons. During the course of the instant trial, the defendant through its officers, advanced a wholly inconsistent reason for the discharge, i.e. that Yablonski favored weaker legislation than defendant.
This record clearly demonstrates that Yablonski's removal and transfer came about as a direct reprisal for his running for president of the union against Boyle, and thus was a violation of the Act.
It is true that Judge Corcoran ordered that Yablonski be restored to his position; but the Act clearly had been violated, and in a fashion which served notice of what might be expected on all officers, employees, and members of the defendant union who might have been Yablonski supporters, but who were also vulnerable to similar reprisals because of the immense power residing in Mr. Boyle. This is the type of violation which very well may have affected the outcome of the election.
Plaintiff charges that the defendant committed numerous violations of Section 401(g) of the Act at the District level by the use of union personnel, funds and facilities in support of its incumbent officers; and emphasizes the potential of these abuses for affecting the outcome of the election by pointing up the importance of the Districts in the overall structure of the organization.
Union funds in the amount of $8,000 were transferred to an attorney by the officers of District 2. It appears that at the time this money was not due and owing to him on account of any services rendered to the District or the UMWA, and that it was transferred by him to the Volunteers Committee for Boyle, Titler and Owens established in District 2.
District 5 is in Pittsburgh, Pennsylvania, and its president is Michael Budzanoski. The District is not financially self-sustaining, and money is borrowed from the International union to cover the expenses which exceed its income. There has never been a problem in obtaining money from the International for its activities and during 1969 large sums were made available to it. Some of the union's money was channelled through the District's treasury to the District's Committee for Boyle, Titler and Owens via a false voucher scheme originated by Budzanoski.
Also voluminous campaign literature was prepared, stored in and distributed from the District headquarters. The campaign committee had no address other than that of the District at 938 Pennsylvania Avenue, Pittsburgh, Pennsylvania 15272.
R. R. Humphreys was the president of District 17 and a Mr. Howell was district representative. In response to a number of inquiries by local union officers with respect to Yablonski's request to be advised of the time and place of the election in their locals, Howell advised them that it was strictly a local union matter and not the concern of the District. By way of contrast on November 26, 1969 Humphreys sent a letter on his official stationery to all local union presidents and recording secretaries in District 17. That letter, typed at the District headquarters by a paid employee of the District on one of its typewriters and thereafter mailed at the District's expense, read in part as follows:
It is very important and essential that your local union, in addition to the regular tellers, have an observer representing Messrs. Boyle, Titler and Owens. These observers are supposed to sit in the polling place and watch the observers for the other candidates to see that no one does anything wrong. The observers are not there to watch the officers; they are there to watch the members voting. Under the Landrum-Griffin Law, ALL candidates have a right to a poll watcher. Be sure to keep the name of each poll watcher and the party he represents. This is very important. Also, these watchers do not have to be members of the Union.
On November 30, 1969, a little over a week before the election, District 23 spent its funds in sponsoring a political rally in Madisonville, Kentucky. Though billed as one of the many Black Lung rallies, it obviously was mainly for political purposes, with a short period devoted to a discussion of the safety issues and, after a brief intermission during which the main participants did not even leave the stage, a full blown campaign rally. It was featured by Boyle making an extensive attack on Yablonski. In addition the District office was used as a depository for the incumbents' campaign materials.
District 25 spent union funds for stationery and the preparation of membership lists in order to complete a mass mailing of campaign literature in support of Boyle, Titler and Owens.
District 28 is a provisional district with 51 locals under its jurisdiction and its president is Carson Hibbitts. Hibbitts helped form a committee of all the employees of the District whose purpose was the reelection of the International officers. Meetings of the committee were held in the District office and campaign literature was prepared in, stored in and distributed from the same.
On June 26, 1969 a letter on the letterhead of the UMWA, Carson Hibbitts, President, District No. 28, was addressed to "All officers and members of all local unions, District 28, United Mine Workers of America." The letter was signed "Carson Hibbitts, President, District 28" and "Ray Thornbury, International Representative." Hibbitts admitted that it bore his signature.
A portion of the letter reads:
In addition to this, District 28 has set up a voluntary organization for the reelection of our International officers W. A. Boyle, George J. Titler, and John Owens. These men have the proven ability to successfully lead our union in the future as they have in the past. This newly organized group will in the very near future send out information to each and every member pertaining to the record of some of the people who are out to destroy our union.
The time has come for our members to back our union against the people who are out solely for the purpose of destroying the greatest union on earth, the United Mine Workers of America, along with our present International President, W. A. Boyle, who is being attacked viciously as John L. Lewis was some twenty-five years ago.
This is clearly an official letter from District 28 carrying a vigorous endorsement of the incumbent International officers.
In the late summer of 1969 Thornbury and a number of members of District 28 locals went to Pittsburgh, Pennsylvania, to meet with Michael Budzanoski and Robert Gordon of District 5 and hear them discuss Yablonski's background and lack of qualifications to be president. On August 7, 1969 the District issued checks to some of those attending the meeting at Pittsburgh which included a reimbursement for lost wages as a result of their attendance.
Carson Hibbitts was also president of District 30, another provisional district during the campaign period. The evidence establishes that between May 29 and December 9, 1969 office personnel and facilities, including storage space, office equipment and supplies, were used to promote the candidacy of the incumbent officers.
The president of District 31, Leonard J. Pnakovich, ordered the staff of the District to participate in the organization of the Boyle-Titler-Owens campaign headquarters. The District office was used as a meeting place for campaign purposes and for the storage and distribution of literature, and a portion of the District's funds were also spent to finance the campaign committee.
The UMWA constitution places the districts in a most important role as supervisors of local union affairs. They settle locals' grievances with employers; they have the power to reverse actions of locals; they can call strikes, punish unauthorized work stoppages, regulate transfer cards, etc. The individual miner is ever aware of its presence. In these circumstances no district officer or employee should in his official capacity attempt to influence an election of International officers. No restriction is placed against their supporting and campaigning for candidates of their choice, just so long as they act as individuals on their own time; but any campaign activity engaged in by them in their official capacities in favor of any particular candidate, or the use by such individuals of district funds or facilities constitutes a gross violation of Section 401(g) of the Act. (29 U.S.C. § 481(g)).
Plaintiff has established such violations and they are particularly serious in this case inasmuch as most of the Districts are in trusteeship where the officers are appointees of the International President and personally responsible to him. In addition they may have affected the outcome of the election.
Widespread and varied misconduct is alleged to have occurred at the local union level; and plaintiff contends that the nature and frequency of the proven misconduct establishes the existence of a pattern and practice throughout the locals.
The most serious of the claimed violations among the locals appear to be (a) voting by non-secret ballot, (b) campaigning within the polling area, and (c) interference with the lawful activity of Yablonski's observers.
The evidence shows that in a great number of defendant's local unions little regard was shown for the requirement that the election be had by a secret ballot. Frequently ballots were marked on walls, chairs, window sills, the backs of other voters, and other places other than a polling booth. Sometimes this occurred under crowded conditions with members voting at the Tellers' table in plain view of officials and observers, or in groups at the same table or elsewhere in the polling place. These conditions, according to plaintiff, made it possible for voters to see how other voters marked their ballots. The defendant on the other hand contends that any body who cared to cast his vote in secrecy could have exercised enough ingenuity to accomplish his purpose.
These loose polling procedures fall short of the Act's specific requirement, and also seem at odds with what has come to be regarded generally as a minimum requirement of the democratic process and free elections.
The record does establish that the defendant allowed campaigning in a substantial number of polling places during the conduct of the election. This practice was widespread. The most prevalent method of campaigning was effected by Boyle partisans through the use of Boyle slate sample ballots and other literature. According to this evidence this literature, and in particular the sample ballots, appeared in various places in the polling places, including the Tellers' tables, on bulletin boards, in the voting booths and on tables at the entrance to the polling place. In many instances they were passed out to voters by the Tellers themselves or Boyle workers within the polling area.
The defendant has characterized the sample ballot issue as a "red herring" of mammoth proportions. It insists that sample ballots are ordinary electioneering materials recognized as perfectly valid by nearly all election regulations. But in taking this view defendant obviously oversimplifies the matter. No one contends that such materials are not acceptable or that their use is illegal or unfair -- except within the polling area. Almost universally active campaigning is restricted to a certain distance away from the entrance to the polls, and election officials are instructed to vigorously enforce this regulation.
The defendant insists that the sample ballot was not improperly used, and even cites the applicable District of Columbia regulation which provides: "A voter may take sample ballots or such other materials as he may desire into the voting booth." (D.C. Rules & Regulations, Title 37, § 5.5(c) 1970). But another section of the same regulations, § 5.8(b), provides:
Interference With Conduct of Elections. No partisan or nonpartisan political activity, or any other activity which in the judgment of the Team Captain may directly or indirectly interfere with the orderly conduct of the election, shall be permitted in, on, or within a reasonable distance outside the building used as a polling or vote counting place. The distance deemed "reasonable" shall be approximately 50 feet from any door used to enter the building for voting. The exact distance will be determined by the Polling Team Captain depending on the physical features of the building and surrounding area. A description of limits for political activity for each polling place shall be available for public inspection at the office of the Board at least twenty-four hours in advance of the opening of the polls. Wherever possible, the limit shall also be indicated by a chalk line or by some other physical marker at the polling place. The term "political activity" shall include without limitation any activity intended to persuade a person to vote for or against any candidate or to desist from voting.
And the same regulations impose the duty upon the Voting Supervisors to ". . . Remove sample ballots and trash from each vacant booth; and prevent voters from communicating with each other in the voting booth area."
The sample ballot per se is not offensive, but its improper usage cannot be condoned.
There is evidence tending to prove that in many cases Yablonski's observers were thwarted in their activities. In some cases they were held waiting for alleged clearance before performing their duties, and in others they were confined to spots in the polling area which made effective observation impossible.
It appears that these matters complained of at the local level did constitute violations of the Act. It should be remembered that "Congress' model of democratic elections was political elections in this country . . ." Wirtz v. Hotel Motel & Club Employees, 391 U.S. 492, 504, 20 L. Ed. 2d 763, 88 S. Ct. 1743.
The court is certain that all of the violations discussed herein have been established by the standard of proof required by the statute, and it is equally certain that when viewed in the light of the Supreme Court's discussion of the "may have affected" language of the Act (Section 402(c), 29 U.S.C. § 482(c)), Wirtz v. Hotel Motel & Club Employees, 391 U.S. 492, 505-9, 20 L. Ed. 2d 763, 88 S. Ct. 1743 (1968), the violations may have affected the outcome of the election.
This is true as to any one of the violations on the International level, and also as to some of those ascribed to the Districts, e.g. 163,000 copies of an election bulletin were prepared and distributed to the entire union membership by Budzanoski in District 5. And those violations proven to have occurred within the locals, when viewed in the light of those at the higher levels of the union, could well have the cumulative effect of determining the outcome.
In the face of the evidence presented by the plaintiff* the defendant has fallen far short of producing evidence which supports a finding that the violations did not affect the election result. Defendant, of course, urges a contrary view and takes the position that this result should not be disturbed.
Throughout the course of this litigation the court has been ever sensitive to the fact that the Act is not designed to deprive labor unions of control over their own affairs and have them supervised by the courts, or any other governmental agency. But in order to reach the defendant's position the court would be forced to swim upstream against the tide of evidence too strong to resist.
Second Cause of Action
On April 13, 1971 the court granted the Secretary of Labor's motion for a preliminary injunction compelling the defendant to comply with the record-keeping requirements of Section 206 of the Act (29 U.S.C. § 436). At that time the court found as a fact that defendant, while presenting evidence of corrective measures taken with regard to recordkeeping as to certain types of disbursements, had not demonstrated that corrective measures had been taken with respect to all of the record-keeping deficiencies found to exist by the court, and the likelihood of further violations was not entirely eliminated, and concluded as a matter of law that the granting of a preliminary injunction compelling defendant to comply with Section 206 of the Act (29 U.S.C. § 436) was appropriate in light of the defendant's past record-keeping conduct as found by the court, and its inability to guarantee compliance in all respects in the future. This was after a finding that certain recordkeeping procedures were violative of Section 206 of the Act.
At the preliminary injunction hearing the defendant had the burden of showing that corrective measures had been taken and failed to do so. No evidence on this score was presented during the trial. Therefore the court finds that the defendant is still in violation of the Act and accordingly concludes that the injunction prayed for under Title II of the Act should be made permanent.
This memorandum opinion shall constitute the court's findings of fact and conclusions of law. Counsel will submit an appropriate order.