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September 24, 1971

Donald M. Keene et al., Plaintiffs
Ice Machinery Independent Employees' Association et al., Defendants

Herman, D. J.

The opinion of the court was delivered by: HERMAN


Plaintiffs, five members of Ice Machinery Independent Employees' Association, hereinafter called "Union," and all of them delegates representing various units of the Union have brought this action against the Union and against Arthur Rider, Jr., Financial Secretary, James Raub, Treasurer, Irwin Swartzbaugh, Recording Secretary, and thirteen named delegates alleging *fn1" a violation of the Labor-Management Reporting and Disclosure Act of 1959, 29 U.S.C. § 401, et seq., more particularly §§ 411 and 412.

 Section 411, known as the Bill of Rights for members of Labor organizations, provides, in relevant part:


"(a)(1) Equal rights. -- Every member of a labor organization shall have equal rights and privileges within such organization to nominate candidates, to vote in elections or referendums of the labor organization, to attend membership meetings, and to participate in the deliberations and voting upon the business of such meetings, subject to reasonable rules and regulations in such organization's constitution and bylaws.


"(2) Freedom of speech and assembly. -- Every member of any labor organization shall have the right to meet and assemble freely with other members; and to express any views, arguments, or opinions; and to express at meetings of the labor organization his views, upon candidates in an election of the labor organization or upon any business properly before the meeting, subject to the organization's established and reasonable rules pertaining to the conduct of meetings: Provided, That nothing herein shall be construed to impair the right of a labor organization to adopt and enforce reasonable rules as to the responsibility of every member toward the organization as an institution and to his refraining from conduct that would interfere with its performance of its legal or contractual obligations."

 The background of this intra-labor organization dispute is essential to an understanding of the matter before us.

 The Ice Machinery Independent Employees' Association is an independent union composed of approximately 2,000 members, of which approximately 100 generally attend union meetings. Officers, consisting of a President, Vice President, Recording Secretary, Financial Secretary, and Treasurer, as well as delegates are elected at an "Election Poll" in November of each even-numbered year for a two-year term and serve until their successors "are duly elected, or until they have been removed from office according to other provisions" of the By-Laws. *fn2"

 Section 1 of Article II of the Constitution and By-Laws provides that "The Association shall be governed, directed and represented by a Board, composed of the Officers of the Association, and a Board of Delegates not to exceed a total of forty (40)."

 In November of 1970 an election was held and Lewis J. Bievenour was duly elected President; George C. McEachern was duly elected Vice President; Irwin Swartzbaugh was duly elected Recording Secretary; Arthur Rider, Jr., was duly elected Financial Secretary; and James Raub was duly elected Treasurer.

 Testimony reveals that at the 1970 election, 23 delegates were duly elected but the names of only 20 appear in the proceedings: John Piho; Marlyn Geesey; Joseph Hoffman; Donald Keene; Victor Zech; Willie L. Allen; Benton Senft II; Gerald Krebs; George Onley; Robert Wisner; Philip Reever; Roland Miller, Jr.; Ray Axe; Elmer Markel; Luther Geiselman; John Hess; D.C. Melhorn; Dean Rentzel; Thomas Harleman; Morgan Irwin.

 These 5 officers and 20 delegates (with perhaps 3 other unnamed delegates) composed the governing board for the Union at the beginning of the unfortunate intra-union squabble which might have had its genesis in the selection of a general counsel. *fn3"

 Although there are no minutes available, it is said that there was a special meeting of the Board of Delegates on February 5th at which the Board voted to suspend Swartzbaugh, Recording Secretary; Arthur Rider, Jr., Financial Secretary; and James Raub, Treasurer. It is further said that at a meeting or hearing on or about the 14th of February these officers were reinstated.

 It is averred that on March 12th the Board of Delegates again met *fn4" and suspended these same three officers, and in addition suspended 13 delegates. It is not clear whether such meeting was ever held, and if it was held, where it was held and what actually transpired. However, defendants' Exhibit 10 (Minutes) reveals that on March 26, 1971 the special meeting called by the notice (Defendants' Exhibit 9) was held and in attendance were the duly elected President and Vice President and the newly appointed Recording Secretary, Treasurer, and Financial Secretary. Thirteen delegates, only six of whom had been duly elected, were present as were seven others purportedly appointed by the President. The suspended officers and delegates failed to appear. Apparently no testimony was taken for or against the removal of the officers and delegates, the minutes showing merely that the charge against them was read; *fn5" that the President asked if anyone wanted to speak on behalf of any of them; a vote was taken, and all 13 delegates present including the plaintiffs in this suit voted to remove all of the accused officers and delegates.

 Meanwhile, on or about the first day of March 1971, the 13 delegates and 3 officers, the named defendants in the present action, met with several other Union members *fn6" and drew up detailed charges against Lewis J. Bievenour, the President of the Union, and against George McEachern, the Vice President. Averring, in the case of the President, that he pursued a policy of " complete dictatorial tactics"; filed false and unfounded unfair labor practice charges against the company for his own personal and selfish promotions and without approval of the other officers or the delegates; established new units contrary to the Union Constitution and By-Laws, and then appointed delegates to represent such units; made false and malicious statements to the Press to the detriment of the Union; and in violation of the Labor-Management Reporting and Disclosure Act of 1959, suspended Swartzbaugh, Rider, and Raub, the officers defendants in this action, "in that the officers were given no written charges nor afforded a reasonable time to defend against such charges and were not given a full and fair hearing." (Defendants' Exhibit 1)

 In the case of the Vice President the charges were that he, too, unlawfully assisted in the suspension of the three officers without written charges, proper notice, or hearing, and it was further charged that McEachern, the Vice President, while presiding over a special meeting of the membership on February 14, 1971 threatened bodily harm to several members who sought the floor to speak. (Defendants' Exhibit 2)

  These charges were in writing and signed by the 13 defendants and several others, and on March 16, 1971 at a regular meeting of the delegates and prior to the receipt of Defendants' Exhibit 8, (the telegram notifying the said defendants of the impending hearing on their removal) Irwin Swartzbaugh, the Recording Secretary, served the charges along with a notice that a public hearing would be had thereon on April 18th, by handing the papers to Bievenour and McEachern personally, or laying them on their desks in front of them at the meeting.

 This brings us to the facts surrounding the meeting of April 18, 1971 where the alleged violation of the Labor-Management Reporting and Disclosure Act of 1959, which purportedly gave rise to this action, is said to have occurred.

 On March 29, 1971 the 13 delegates and 3 officers who are said to have been removed on March 26, 1971 *fn7" sought permission from management to post on bulletin boards throughout the plant a notice (Plaintiffs' Exhibit 1) of the hearing to be held on April 18th. This permission was granted and on April 9th the notices were posted.

 A fair reading of the testimony shows that on April 18th about 100 persons including officers, delegates and Union members appeared at the meeting (hearing) and Swartzbaugh, Rider, and Raub were on the stage of the auditorium with Attorney Blackmon, *fn8" and Swartzbaugh and others appointed Rider, the Financial Secretary, chairman of the meeting. At this point Bievenour and McEachern came up to the stage and forcibly took the microphone from Rider and a chair from Blackmon and an argument began, and utter confusion resulted. The Mayor tried to get order and Swartzbaugh, Rider, and Raub, and many (perhaps close to half) of the assembled delegates and members left the stage and went at the suggestion of the Mayor to a foyer just outside the auditorium and separated therefrom by only an open doorway. In the foyer this group which may have numbered 50 held their hearing, and according to the minutes (Defendants' Exhibit 3) the aforementioned charges were read, testimony was heard and a vote taken. The 3 officers and 13 delegates, the within defendants, were among those present and 4 or 5 persons testified. Bievenour and McEachern remained with approximately 60 members and delegates in the main auditorium and took no part in the meeting in the foyer.

 All of the plaintiffs were present in the auditorium but none of them followed the 50-odd who went to the foyer. John Piho, one of the plaintiffs, did not testify at either of the hearings in this court on the matter but the other 4 plaintiffs did and the best that can be said for their testimony is that, if believed, they were deprived of their right as delegates to vote on the motions to remove the President and Vice President at a hearing which they deny occurred, or if it did occur, was illegal or completely without any validity at all.

 This court has jurisdiction of the matter under the Labor-Management Reporting and Disclosure Act, 73 Stat. 519, 29 U.S.C. § 401, et seq. (1959), as amended, and the complaint sets forth the jurisdictional requisites. "The well established * * * practice * * * has been that the assertion of a substantial claim under a federal statute gives a United States court jurisdiction of that claim even though that court may determine ultimately that no cause of action on which relief could have been granted was alleged. . . ." Sheridan v. United Bhd. of Carpenters, Etc., 306 F.2d 152, 156 (3d Cir. 1962); Lewis v. American Fed. of State, County & Mun. Emp., 407 F.2d 1185 (3d Cir. 1969) n.3; Axelrod v. Stoltz, 391 F.2d 549 (3d Cir. 1968); Depew v. Edmiston, 386 F.2d 710 (3d Cir. 1967). However, it has been held in this Circuit that "This title [Title I of the Act], captioned 'Bill of Rights of Members of Labor Organizations', and particularly Section 101, are designed to protect the rights of union members. The rights are repeatedly described as the rights of 'any member' or 'every member'. No mention is made of the rights of union officers or employees. It is of particular interest to note that the right-to-sue provision of the bill that was originally passed by the Senate provided that a labor organization shall not limit 'the right of any member or officer thereof to institute an action in any court. * * * The corresponding provision of the bill that was subsequently passed by the House did not contain the word 'officer'. In commenting on this difference between the Senate and House bills, a document prepared by Senator Goldwater's staff and inserted at his request in the Congressional Record states that 'the Senate bill extends protection of the right to sue expressly to union officers.' 105 Cong. Rec. 16487 (1959). The Conference Committee adopted the House version, and accordingly Section 101(a)(4) as finally enacted by Congress speaks only of the right of members, thus conforming to the terminology used in the other provisions of Section 101." Sheridan v. United Bhd. of Carpenters, supra, 306 F.2d at 156-57; See also, Lewis v. American Fed. of State, County & Mun. Emp., supra.

 It seems to us that if plaintiffs' concern is really to protect or redress rights in themselves, then the rights they seek to protect are rights as delegates and not rights as members of the Union. Article III, Section 8(A) *fn9" of the Constitution and By-Laws provides a manner for the removal of officers of the Union by the delegates. And it is the purported removal of the President and Vice President about which they complain. But even if a breach of this alleged right is actionable under the Labor-Management Reporting and Disclosure Act, we must conclude that plaintiffs have not met their burden of proof that such a right was violated.

 They were all present at the meeting in the auditorium when nearly half of those in attendance, after the fracas described previously, including, of course, those who called the meeting, or hearing, went in a body to the foyer. Plaintiffs were at perfect liberty to follow and to take part in any proceedings conducted there. The court is convinced that they elected not to go and take part in what they describe as an illegal assembly.

 While we make no determination on the legality of this meeting, or hearing, we note that Borg-Warner, the employer, and National Central Bank, the depository of the Union funds, recognized the validity of the action taken at that meeting which removed both the President and Vice President from office. *fn10"

 After a careful consideration of the evidence taken at two hearings in this matter, and an examination of all the exhibits, we conclude that plaintiffs are not really complaining about any deprivation of their individual rights but are actually complaining about purported rights of Bievenour and McEachern and this they cannot do for a plaintiff has no standing to enforce the rights of others. Mamula v. United Steelworkers of America, 304 F.2d 108, 113 (3d Cir. 1962), citing other cases; Johnson v. Stevenson, 170 F.2d 108 (5th Cir. 1948), cert. denied, 336 U.S. 904, 69 S. Ct. 491, 93 L. Ed. 1069.

 As previously noted, it has been brought to our attention since the hearing in this matter that in an election held on August 13, 1971, in which Bievenour was a candidate for the presidency of the Union, one Van Abel was elected with 622 votes and Bievenour polled 528, and for Vice President James Moul was elected with a vote of 520. Neither of these two officers are parties in this suit.

 Two days before the election Bievenour and McEachern, through their attorney, filed a complaint with the Secretary of Labor, and under Title IV, 29 U.S.C. § 482 this appears to be the proper procedure to contest an election once it has been held.

 In the light of what we have said here, we conclude that the plaintiffs have not met their burden of proof and have failed to prove a violation of the Labor-Management Reporting and Disclosure Act of 1959 and that the complaint should be dismissed, and the permanent injunction denied. We will enter an order accordingly.


 And Now, this 24th day of September 1971, for the reasons stated in the Memorandum Opinion herewith, the complaint be and it hereby is dismissed and the permanent injunction denied.

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