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Tomko v. Hilbert

March 28, 1961


Author: Staley

Before BIGGS, Chief Judge, STALEY and HASTIE, Circuit Judges.

STALEY, C. J.: This appeal requires us to determine whether Title I ("bill of rights") of the Labor-Management Reporting and Disclosure Act of 1959 ("LMRDA"), 73 Stat. 519, 29 U.S.C.A. § 401 et seq ., regulates the conduct of private individuals not acting as agents or representatives of any labor organization.

Tomko, appellant, commenced an action under the bill-of-rights section of the LMRDA for damages and an injunction, alleging that Hilbert and Kreheley, appellees, libeled and assaulted him, and that by means of threats, force and disorderly conduct, unlawfully interfered with his rights as a member and officer of Local 1408, an affiliate of the United Steelworkers of America ("USW"). The action was brought against appellees in their individual capacities, although both are officials of District 15 of the USW. Appellant does not allege that any labor organization or any officer or agent thereof acting in an official capacity has violated his rights under the bill of rights.

The district court dismissed the action because of the appellant's failure to exhaust the remedies provided for by the USW's constitution. This, appellant contends, was reversible error. We need not reach this question, however, for it is our conclusion that the LMRDA does not provide a civil remedy for the vindication of rights contained in the bill of rights against one who in violating such rights is not acting in the capacity of an official or agent of a labor union. This interpretation results not only from the language of the LMRDA, but from a consideration of its purpose, the evils it was meant to cure, its legislative history, and what few pertinent decisions are available.

The need for and purpose of enacting the LMRDA is clearly set forth in subsection 2(a), 29 U.S.C.A. § 401(a), of the preamble, which states that in order to realize a free flow of commerce, "it is essential that labor organizations, employers, and their officials adhere to the highest standards of responsibility and ethical conduct in administering the affairs of their organizations, particularly as they affect labor-management relations." Subsection 2(b), 29 U.S.C.A. § 401(b), shows that Congress concluded that as a result of certain investigations that had been conducted in the labor-management field, further and supplementary legislation was necessary to protect the rights and "interest of employees and the public generally as they relate to the activities of labor organizations, employers, labor relations consultants, and their officers and representatives." In subsection 2(c), 29 U.S.C.A. § 401(c), Congress declared "that the enactment of this Act is necessary to eliminate or prevent improper practices on the part of labor organizations, employers, labor relations consultants, and their officers and representatives * * *."

The provisions with which we are chiefly concerned are contained in Title I. Under subsection 101(a)(1), 29 U.S.C.A. § 411 (a)(1) every union member has equal rights and privileges of participation in the internal affairs of the union subject to reasonable rules and regulations of the union's constitution or bylaws. Subsection 101(a)(2), 29 U.S.C.A. § 411(a)(2) guarantees a union member the right of free speech and assembly as regards union activities, subject again, however, to any reasonable rules and regulations that a union may adopt to protect itself as an institution. Procedures for increasing dues, initiation fees, and levying assessments by the union are meticulously spelled out in subsection 101(a)(3), 29 U.S.C.A.§ 411(a)(3), while subsections 101(a)(4) and (5), 29 U.S.C.A. §§ 411 (a)(4) and (5), protect the member's right to sue the union and provide procedural safeguards for improper disciplinary action by the union. Sections 104 and 105, 29 U.S.C.A. §§ 414 and 415, require the union to provide its members with copies of the collective bargaining agreement and information concerning the provisions of the LMRDA. The civil enforcement provisions of the bill of rights, section 102, 29 U.S.C.A. § 412, provides that "Any person whose rights secured by the provisions of this title have been infringed by any violation of this title may bring a civil action in a district court of the United States for such relief (including injunctions) as may be appropriate. Any such action against a labor organization shall be brought in the district court of the United States for the district where the alleged violation occurred, or where the principal office of such labor organization is located." There is no indication here that the substantive provisions of the bill of rights can be enforced against any person as that term is defined in subsection 3(d), 29 U.S.C.A. § 402(d).*fn1 In contrast, Title II, 73 Stat. 524, 29 U.S.C.A. § 431 et seq., which imposes a duty on labor organizations, their officers and employees, and employers to prepare and file certain enumerated reports, can be enforced by a civil action under section 210, 29 U.S.C.A. § 440, against any person . Also, criminal sanctions are contained in section 610, 29 U.S.C.A. § 530, which makes it unlawful for any person through threats or the use of force or violence to atteall rights that a union member may have under any of the titles of the LMRDA. Section 609, 29 U.S.C.A. § 529, protects union members who attempt to enforce their rights under the LMRDA against recriminatory acts of labor organizations or their representatives and not the world at large.

A recapitulation of other pertinent provisions of the LMRDA clearly shows that its operation is narrowly focused on protecting the union-member relationship. Title II specifies certain reports that must be prepared and distributed by labor organizations, their officers, and employees, and employers.*fn2 In Title III, Congress delineated with particularity the circumstances under which a trusteeship may be established and the administration of and powers possessed by a union in trusteeship.*fn3 The frequency of and procedure for conducting elections for enumerated union officers is covered by Title IV.*fn4 Safeguards for the preservation of union funds are contained in Title V, which prescribes a code of fiduciary responsibility on the part of union officers, disqualifies certain persons from holding office in a union or acting in other enumerated capacities, prohibits unions from paying fines incurred by its officers or employees, and greatly restricts loans that a union can make.*fn5

A chronological review of the LMRDA's legislative history begins with the Kennedy-Ervin bill. It did not contain a bill-of-rights section.*fn6 In referring to that bill, Senator McClellan said, during congressional debate:

"* * * It does not afford adequate sanctuary to the exploited and the oppressed.I propose, therefore, Mr. President, to offer some strong amendments - amendments that will be in the interest primarily of workers - of union members and for their protection; amendments designed to insure greater integrity in the administration and management of union affairs ."*fn7

During debate on the amendment that he proposed and that the Senate passed,*fn8 Senator McClellan said:

"Mr. President, I do not believe that racketeering, corruption, abuse of power, and other improper practices on the part of some labor organizations can be, or will ever be, prevented until and unless the Congress of the United States has the wisdom and the courage to enact laws prescribing minimum standards of democratic process and conduct for the administration of internal union affairs ."*fn9

While the amended Kennedy-Ervin bill was still in the Senate, the so-called Kuchel substitute was offered for the McClellan bill of rights, the substantive provisions of which were, however, in the main retained.*fn10 From the debates that followed, it is clear that the Kuchel substitute was likewise limited to regulating the activities of unions and their officials and agents as they affect the union-member relationship.*fn11

The House of Representatives in enacting the Landrum-Griffin bill as a substitute for the Senate bill retained the bill-of-rights provisions of the Senate bill with minor modification.*fn12 During debate in the House, Representative Griffin, one of the floor managers, stated: "The labor reform legislation before the House at this time is directed at the regulation of the internal affairs of unions."*fn13 Representative Derwinski brought congressional intent into sharp focus when in debate he said:

"* * * A bill of rights giving the rank-and-file union member full protection of his rights as a union member must be adopted. The purpose of the bill of rights is to protect union members against the rules and practices of some unions which ...

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