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08/03/72 Kenneth J. Yablonski and v. United Mine Workers of

August 3, 1972






McGowan and Wilkey, Circuit Judges, and Gourley,* Senior District Judge, Western District, Pennsylvania.



In the course of the bitterly contested 1969 election for the presidency of the United Mine Workers of America, one of the candidates, the late Joseph A. Yablonski, instituted in the District Court four separate lawsuits under the Labor-Management Reporting and Disclosure Act of 1959. 29 U.S.C. §§ 401ff. Mr. Yablonski did not live to see those cases through to final conclusion since he, together with his wife and daughter, was murdered shortly after the election. *fn1 Significant and substantial preliminary relief was, however, forthcoming in, or by reason of, those suits. In each case eventual motions were made for the allowance of attorney's fees to the plaintiff; and the consolidated appeals now before us are from orders of the District Court denying those motions. We reverse. I The litigations giving rise to the appeals before us are as follows:

1. The Mailing List Case.

Promptly after announcing his candidacy, Mr. Yablonski invoked the provisions of § 401(c) of LMRDA imposing a duty upon a labor organization "to comply with all reasonable requests of any candidate to distribute by mail or otherwise at the candidate's expense campaign literature in aid of such person's candidacy to all members in good standing of such labor organization . . ." 29 U.S.C. § 481(c). Receiving no meaningful response from UMW to his request, Yablonski sued in the District Court to compel compliance with the statute. A preliminary injunction giving the relief sought was entered after a contested hearing. Appealed to this court, we denied a stay and the appeal was ultimately withdrawn. Three separate mailings were made during the course of the campaign, the first to each of the 162,000 UMW members informing them of Yablonski's candidacy and of his qualifications, and the other two to each local union, the second of which advised the locals of their responsibilities under LMRDA and the union constitution with respect to the conduct of a fair election.

*fn2. The Reinstatement Case.

With the announcement of his candidacy, Mr. Yablonski was promptly removed, without notice and without any serious attempt at justification, from his job as Acting Director of Labor's Non-Partisan League in Washington and reassigned to District 5 in Pittsburgh which was controlled by his opponent, Mr. Boyle, the UMW presidential incumbent. Section 609 of LMRDA makes it unlawful for any labor organization "to fine, suspend, expel, or otherwise discipline any of its members for exercising any right to which he is entitled" under the Act. 29 U.S.C. § 529. Mr. Yablonski again filed suit, with the result that the District Court, after hearing, found as a fact that the removal had been motivated by a purpose to retaliate for his candidacy. A preliminary injunction was granted, ordering his reinstatement. The response of the defendants was grudging at best, and reinstatement was actually effected only after Mr. Yablonski threatened to seek a contempt order.

*fn3. The Journal Case.

Alleging that the defendants were continuously using as a campaign tool against him the UMW Journal, a union publication sent regularly to every UMW member, Mr. Yablonski sued on behalf of himself and all UMW members to stop this practice. Section 401(c) of LMRDA bans discrimination by a labor organization "in favor of or against any candidate with respect to the use of lists of members." 29 U.S.C. § 481(c). The District Court, finding that a prima facie case had been made that the defendants were violating this statute in their use of the Journal, issued a temporary restraining order (which we refused to stay), and thereafter, after hearing, a preliminary injunction which ordered the defendants (1) to stop the practice complained of and (2) to distribute a copy of the court's findings and injunctive order to each UMW member.

*fn4. The Fair Election Case.

Mr. Yablonski's fourth resort to the courts was on behalf of himself and all UMW members, asking that, by reference to Sections 401(c) and (e) and 501 of LMRDA, 29 U.S.C. §§ 481(c), (e), 501, the defendants be ordered to promulgate and to effectuate rules and procedures designed to assure fairness in the election. This action was taken only after Mr. Yablonski had formally requested the defendants to permit inspection of UMW membership lists and to issue to all locals rules for the conduct of the election. This request included specific proposals for inclusion in such rules. When these requests were denied, they were followed by a further request that the union leadership institute a suit for a declaration of the terms under which the election should be held. Receiving no response to this last request, Mr. Yablonski filed this suit.

The election call sent out after this litigation was commenced contained, for the first time in UMW history, two of the procedures suggested by Mr. Yablonski -- secret balloting and candidate observers -- but it went no further towards the promulgation of comprehensive election rules for the locals. When the matter came on for hearing on a preliminary injunction, the court was critical of the defendants, and this was countered by the making to the court of certain representations as to steps the defendants would take. These included undertakings that each local would be sent a set of detailed rules for the election; UMW membership lists would be prepared and made available for inspection by all candidates; election results, by local, would be sent to each local; and 51,000 extra ballots held by the defendants would be returned to the printer. By reason of such representations, the District Court ...

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