The opinion of the court was delivered by: DUSEN
The history and background of this case are covered in the Opinion of May 15, 1962, 205 F.Supp. 45 (Document No. 5), denying the Motion For Preliminary Injunction filed May 2, 1962 (Document No. 2). The above Renewed Motion (Document No. 6) is based on allegations that:
(a) because of a threat alleged to have been made at a meeting held the evening of May 15 and 'the aura of unfairness and violence which permeates the meetings of * * * Local 1291, it is impossible for' motions to be placed 'upon the floor in such a manner that the membership may vote upon them without fear of intimidation and reprisal' (paragraph 4); and
(b) 'no remedies exist within the union to protect the plaintiffs from reprisal, threats of violence or likelihood of physical harm for taking positions inconsistent with, and opposed to, the existing leadership of Local No. 1291' (paragraph 5).
Since the plaintiffs have not sustained their burden of proof on either of these allegations, the above Renewed Motion will be denied.
Although Mr. Kalai testified for plaintiffs to such language and that it was stated as a threat, he had no personal knowledge of a person 'being dumped in the river' or 'having his head blown off' on the Philadelphia waterfront, but he said that he had heard of such circumstances without specifying where or when. Also, Mr. Johnson testified for plaintiffs that Talmadge threatened 'to get rid of' Harris, although he stated that Talmadge left the stage and took a seat at the back of the hall, thirty to forty feet behind Harris and not 'immediately behind Harris,' as Johnson had stated in his sworn affidavit attached to the Motion (Document No. 6).
Talmadge stated that he was upset by the motion and stated to the meeting that if the motion was passed, the members might as well get rid of him as business agent. He also said that he would work to get rid of Harris (meaning getting rid of him as a member of the union by filing charges against him) if the motion was passed. He considered his statement as a conditional resignation by him and, for this reason, he went to the rear of the hall preparatory to leaving the meeting if the motion passed. The motion was defeated by an overwhelming vote. He had told Harris as early as 1957-1958 that his conduct was not for the best interest of the union.
At least three witnesses testified that their only recollection of Talmadge's statement was in accord with Talmadge's testimony (testimony of Askew, Moock and business agent Johnson).
The hearing judge is unable to accept the testimony of Herbert Harris for these reasons:
1. His testimony that he had never been fired and the union had never interceded to get his job back was directly contradicted by a more reliable witness (his Lavino foreman, E. Kane), as well as by Talmadge. His testimony that he had never been in a meeting presided over by Mediator Murray in 1954 with Richard Neal was contradicted by reliable testimony.
2. His testimony as given was inconsistent.
3. He did not testify accurately during the May hearings (see page 46 of Opinion of May 15, 1962, being Document No. 5).
4. He has been unsuccessfully opposed to the present union management for years and seems primarily interested in removing the present officers from their positions of authority.
5. He has been previously convicted of a felony. See Bocchicchio v. Curtis Publishing Co., 203 F.Supp. 403, 407-408 ...