Cole v. Hall, 615

• Decision Date: 22 June 1972
• Docket Number: No. 615,Docket 72-1003.,615
• Citation: 462 F.2d 777
• Parties: John J. COLE, Plaintiff-Appellee, v. Paul HALL, individually and as President et al., Defendants-Appellants.
• Court: U.S. Court of Appeals — Second Circuit

462 F.2d 777 (1972)

John J. COLE, Plaintiff-Appellee, v. Paul HALL, individually and as President et al., Defendants-Appellants.

No. 615, Docket 72-1003.

United States Court of Appeals, Second Circuit.

Argued April 7, 1972.

Decided June 22, 1972.

Burton H. Hall, New York City, for plaintiff-appellee.

Schulman, Abarbanel, Perkel & McEvoy, New York City, (Howard Schulman, New York City, of counsel), for defendants-appellants.

Before CLARK, Associate Justice,^* LUMBARD, Circuit Judge, and TYLER, District Judge.^**

Mr. Justice CLARK:

This case was here during the September Term, 1964, on an appeal from an order enjoining the defendants pendente lite from excluding appellee, John J. Cole, from membership in the Seafarers International Union of North America. Cole v. Hall, 2 Cir., 339 F.2d 881 (1965). In a unanimous opinion by Chief Judge Lumbard, the panel Lumbard, C. J., Hays and Marshall, Circuit Judges affirmed the judgment of the District Court restoring Cole to union membership after he had been expelled in violation of his rights under § 101(a) of the Labor-Management Reporting and Disclosure Act¹ of 1959, 29 U.S.C. § 411(a). Judge Dooling had entered the temporary order in the District Court on the basis that the defendants had infringed Cole's rights under § 101(a) (2) of the Act. In addition, he found that they had also violated § 101(a) (5) of the Act which requires a union to give adequate notice and a fair hearing to a member before disciplining him. Five years later the case came on for trial before Judge Mishler which resulted in a judgment ordering Cole permanently reinstated to membership in the union and restored to all of the financial benefits accruing to such membership and denying Cole's damage claims but granting him counsel fees in the sum of $5500 the amount being stipulated against the union. The complaint was dismissed against each of the individual defendants.

1. Appellant union first asserts that the trial before Judge Mishler adduced different facts than did the hearing for a temporary injunction. However a reading of the findings clearly shows that the trial judge based the judgment against the union substantially on the same grounds upon which Judge Dooling had issued the injunction in 1964 and this court had affirmed. There was additional evidence as to "raiding" engaged in by the competing unions in which the appellant union asserted it was in a "life and death" struggle for survival and that Cole's resolution would seriously undermine its chief function i. e., gaining and retaining jobs for members. The Trial Committee of the union had found that his resolution had threatened the union as an institution by jeopardizing 200 union jobs and recommended the expulsion of Cole. It claimed that the expulsion of Cole was therefore proper under the proviso of Section 101(a) (2) permitting a union to "adopt and enforce reasonable rules as to the responsibility of every member toward the organization as an institution." However, a reading of the opinion here and the later one of Judge Mishler shows that both are based on substantially the same grounds. As this court held, Cole was not subject to expulsion even though his resolution was held by the Trial Committee to be "malicious vilification" or for that matter, false or libelous as this court pointed out, citing Salzhandler v. Caputo, 316 F.2d 445 (2 Cir. 1963). Moreover, the argument appellant makes now is virtually identical to that rejected in Giordani v. Upholsterers International Union, 403 F.2d 85 (2 Cir. 1968) and Farowitz v. Associated Musicians, 330 F.2d 999 (2 Cir. 1964). This threat was speculative at best. Moreover, even if Cole's resolution had threatened legitimate interests of the union, Congress has struck the balance of interests in favor of protecting the democratic process within unions by insuring freedom for every union member to enter into debate on union activities. Cole was merely expressing his views on current union policy and urging other members to change that policy by adopting his resolution. He urged no individual member to violate union rules or to take any action not approved by the union membership. See Farowitz v. Associated Musicians, supra, at 1002. Under these circumstances, then it is manifestly clear that Cole's conduct was protected. "The basic concern of the statute protecting union member's right to free speech is not in the precise words said, but rather what was being talked about. If the underlying topic of conversation concerns union affairs, then arguments, questions or accusations relating thereto are protected." Giordani v. Upholsterers International Union, supra, 403 F.2d at 89, quoting from Nix v. Fulton Lodge No. 2, 262 F. Supp. 1000, 1005 (N.D.Ga.1967). For, "if unions could discipline such speech on the ground that it weakened their power as an institution, this safeguard would be rendered entirely ephemeral and ineffectual." Giordani, supra, 403 F.2d at 89-90.

2. The union also challenges the award of counsel fees. The trial judge in a most comprehensive and persuasive opinion upheld this award on the authority of Gartner v. Soloner, 384 F. 2d 348 (3 Cir. 1967). As he points out, Section 102 of the Act 29 U.S.C. § 412 is silent on the question while Section 201 29 U.S.C. § 431 and Section 501(b) 29 U.S.C. § 501(b) specifically provide for the discretionary award of counsel fees. However, the provisions of Section 102, entitled "Civil Enforcement" do authorize the district court to grant "such relief (including injunctions) as may be appropriate." While counsel fees are not ordinarily recoverable in the absence of statutory or contractual authority, Fleischmann Distilling Corp. v. Maier Brewing Co., 386 U. S. 714, 717, 87 S.Ct. 1404, 18 L.Ed.2d 475 (1967), still three Circuits have upheld the discretionary award of counsel fees in Section 102 cases.² There are no decisions in any of the Circuits to the contrary, although McCraw v. United Association, 341 F.2d 705 (6 Cir. 1965) is sometimes cited as so holding. However, a close examination of that case reflects that the Court of Appeals did not specifically pass on § 102 but considered instead § 431(c). At p. 711. In Vars v. International Brotherhood of Boilermakers, 215 F.Supp. 943 (D.Conn.1963), counsel fees were not allowed. No appeal was perfected on this point; however, this court on the appeal of the union did affirm that part of the judgment restoring membership rights. In the district courts there are some conflicts, as has been noted; however the majority, including the Southern and Eastern³ Districts of New York, have awarded counsel fees under § 102. To us the granting of counsel fees here makes sense.

We start with the proposition that the Act clearly protects the right of members of labor unions "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 any business properly before the meeting . . ." Cole was exercising this very right and was expelled for it. This case—as well as a host of others— attests to the unions' propensity to deprive members of their rights of free speech. The Congress recognized this right as vital to the independence of the membership and the effective and fair operation of the union as the representative of its membership. When Cole brought this suit, he was not vindicating his rights of free speech alone but those of every member of the union as well. Indeed, his success in maintaining this right at union meetings inured to the benefit of union members everywhere. This action by Cole was therefore of substantial benefit to all of the members of the union. In vindicating his right, he vindicated their right. Johnson v. Nelson, 325 F.2d 646, 653 (8 Cir. 1963). All Cole was fighting to correct and change was a policy of the union, i. e. raiding other jurisdictions, cutting daily wage rates in a price war with other unions, and the reduction in "manning scale" to gain representational power.

These benefits to the union and the labor movement would be lost in most instances without the discretionary authority in courts to grant counsel fees. Indeed, cases vindicating such rights would never be filed. This case is a typical example. It has been pending almost ten years, has been to this court twice, has consumed hundreds of hours of the court time of four trial judges, accumulated thousands of pages of motions, written interrogatories, briefs, arguments, opinions, etc., some 1200 pages of testimony, two panels of judges of this court and literally thousands of hours of counsel time. The record shows that it took six months for Cole to secure his temporary injunction, largely because of the dilatory action of the union and its officers; seven years to get his trial and now two years to obtain the final vindication of a right not only specifically secured to him in the Act itself but...