663 F.2d 1048 (11th Cir. 1981), 80-7559, Erkins v. Bryan

Docket Nº:80-7559.
Citation:663 F.2d 1048
Party Name:Elbert ERKINS, Samuel Denson and Perry Culpepper, Plaintiffs-Appellants, v. Billy BRYAN, Arthur Comer, George Bullard and Charlie Greene, Defendants-Appellees, United Steelworkers of America, AFL-CIO-CLC, Intervenor-Appellee.
Case Date:December 14, 1981
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit
 
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Page 1048

663 F.2d 1048 (11th Cir. 1981)

Elbert ERKINS, Samuel Denson and Perry Culpepper,

Plaintiffs-Appellants,

v.

Billy BRYAN, Arthur Comer, George Bullard and Charlie

Greene, Defendants-Appellees,

United Steelworkers of America, AFL-CIO-CLC, Intervenor-Appellee.

No. 80-7559.

United States Court of Appeals, Eleventh Circuit

December 14, 1981

Jacobson, Sodos, Melnick & Krings, Thomas M. Jacobson, Milwaukee, Wis., William I. Grubb, II, Eufaula, Ala., Walter F. Kelly, Milwaukee, Wis., for plaintiffs-appellants.

Page 1049

Cooper, Mitch & Crawford, Jerome A. Cooper, Birmingham, Ala., for Bryan, et al.

James D. English, Associate Gen. Counsel, United Steelworkers of America, Pittsburgh, Pa., Bernard Kleiman, Gen. Counsel, Chicago, Ill., for United Steelworkers of America.

Appeal from the United States District Court for the Middle District of Alabama.

Before TUTTLE, HENDERSON and HATCHETT, Circuit Judges.

TUTTLE, Circuit Judge:

By this appeal we are required to construe and apply the provisions of the Landrum-Griffin Act, particularly 29 U.S.C. § 501(b) when persons alleging themselves to be members of a local union seek permission of a United States district court to file an action against former officers of the local alleging misappropriation of union funds, in which action the prospective plaintiffs seek to make a recovery for the benefit of the union.

This section provides:

When any officer, agent, shop steward, or representative of any labor organization is alleged to have violated the duties declared in subsection (a) of this section and the labor organization or its governing board or officers refuse or fail to sue or recover damages or secure an accounting or other appropriate relief within a reasonable time after being requested to do so by any member of the labor organization, such member may sue such officer, agent, shop steward, or representative in any district court of the United States or in any State court of competent jurisdiction to recover damages or secure an accounting or other appropriate relief for the benefit of the labor organization. No such proceeding shall be brought except upon leave of the court obtained upon verified application and for good cause shown, which application may be made ex parte. The trial judge may allot a reasonable part of the recovery in any action under this subsection to pay the fees of counsel prosecuting the suit at the instance of the member of the labor organization and to compensate such member for any expenses necessarily paid or incurred by him in connection with the litigation.

29 U.S.C. § 501(b).

The petitioners, here the appellants, filed their petition with the district court seeking permission to file their suit as members of Local 7326 of the International Union, United Steel Workers, alleging that several former officers had, during a strike in which the petitioners had participated, embezzled and misappropriated money furnished to the Union by the International for strike benefits. The petition alleged that the petitioners were, at the time, members of Local 7326. They alleged sufficient facts which would have supported a complaint alleging misapplication of funds as outlined in § 501(b). They also alleged that they had "made demand by letter to United Steel Workers of America (their international union) to take the necessary action to prevent any further union funds from being misused by defendants for the abovementioned purposes, and to take immediate steps, by filing court action, to recover from the individual defendants the funds the defendants have wrongfully expended." They alleged the officers of the International had failed under a reasonable time to take such action. Based on such application, sworn to by the parties and presented to the court ex parte as is permitted under the statute, the trial court entered its order granting leave to file the petitioners' complaint.

Thereafter, after granting leave to the named respondents to delay the filing of their response, the trial court set down for a hearing a motion by United Steel Workers of America for permission to intervene for the purpose of moving the court to revoke its order permitting the filing of petitioners' complaint. This motion to intervene was supported by a long affidavit by the associate general counsel of the United Steel Workers of America, who outlined the usual procedures for the handling of the affairs of locals which are in similar circumstances

Page 1050

to Local No. 7326. Neither the petition to intervene nor the Frankel affidavit categorically stated that the petitioners were no longer "members" of the union. This affidavit was extensively answered by counsel for petitioners prior to the hearing conducted by the trial court. The court did not enter an order allowing the intervention, but considered the pleading and affidavit as though it had done so.

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