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November 23, 1976

BOOKER THOMAS, et al., Plaintiffs,

The opinion of the court was delivered by: SIRICA

 The plaintiffs in this case are five retired bituminous coal mine workers who are members of the United Mine Workers of America union ("UMWA"). The defendants are that union and its president, Arnold Miller. The plaintiffs claim that the defendants have violated a number of their rights of expression and of fair representation in collective bargaining negotiations. At this time, the defendants have moved for summary judgment.


 The facts which the plaintiffs have pleaded, and which the Court must at this stage accept as true, are these. In 1972, after a number of years of bitter fighting, the defendant Arnold Miller was by a narrow majority elected president of the UMWA. But the battles left their scars. Miller and his associates knew that the retired union members had consistently backed the opposition and they decided to repay retirees for that choice when the opportunity arose.

 That opportunity came the following year. In the fall of 1973, the UMWA convened in a constitutional convention to enact a new constitution for the union and to decide on preliminary bargaining objectives for the collective bargaining negotiations with the bituminous coal mine owners which would take place in the fall of 1974. The members did in fact adopt a new constitution and they also decided on certain goals for the upcoming negotiations. One particular goal was that:

. . . [the] pension of the miner be increased periodically over the life of the next contract to at least $500 a month, with a cost of living escalator clause. . . .

 By "miner" the members meant all miners -- both those retired at the time and those who would retire in the future.

 But Miller and other union leaders decided not to seek this goal for all union members equally. They decided that for members who would retire in the future they would seek the full $500, but for persons who were already retired they would seek an increase to only about $200 - $250 a month. In addition, they decided that the pensions for future retirees should be paid out of a fund separate from the one already set up to pay the pensions of persons then retired. This old fund was called the 1950 Fund. In order to help pay for the new fund, they would allow the old fund to be depleted.

 Miller and his associates also delayed the election of the union's first vice-president for pensioner affairs until November of 1974, and when the person elected to that office was finally installed, they refused to let him participate in the 1974 contract negotiations.

 Finally, the Miller group actively concealed from the retired members and from the membership in general any hint that they planned to negotiate for a separate, less generous, pension plan for those union members who were already retired than for actively working members.

 Subsequently, during the fall of 1974, Miller and the other bargainers successfully negotiated for the two-tiered pension system they had devised. But they decided not to disclose this fact to the union membership until approximately five days before the ratification vote was to be taken at the local union level. And when they did disclose the nature of the pension system, they refused to let the vice-president for pensioner affairs participate in the ratification process; they denied to individual retired members any opportunity to express their views to the members in general; and they refused to let retirees vote on the ratification of the contract. When the final vote was taken, the contract, with the two-tiered pension system, was ratified by a small majority.


 The burden which the movant must meet in a summary judgment motion is concededly a difficult one. As stated in Nyhus v. Travel Management Corp., 151 U.S. App. D.C. 269, 466 F.2d 440, 442 (1972):

[The] record must show the movant's right to it "with such clarity as to leave no room for controversy," and must demonstrate that his opponent "would not be entitled to [prevail] under any discernible circumstances."

 As is implicit in this statement, the Court must consider the posture of the case in making these determinations. The party moved against cannot be expected to have his case as well under control in its early stages as he might later on or if he should be allowed to go to trial. Schliep v. DeMaras, 410 F. Supp. 1190, 1193 (1976). Cf. 1199 DC, National Union of Hospital and Health Care Employees v. National Union of Hospital and Health Care Employees, 175 U.S. App. D.C. 70, 533 F.2d 1205 (1976).

 The defendants here have made their motion at a very early stage; the plaintiffs have not yet had the opportunity to conduct depositions or interrogatories. It is with this in ...

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