Brennan v. INTERNATIONAL U. OF DIST. 50, ALLIED & T. WKRS.

• Decision Date: 03 June 1974
• Docket Number: No. 72-1494,72-1495 and 72-2082.,72-1494
• Citation: 163 US App. DC 46,499 F.2d 1051
• Parties: Peter J. BRENNAN, Secretary of Labor, United States Department of Labor and Angelo J. Cefalo, Appellants, v. INTERNATIONAL UNION OF DISTRICT 50, ALLIED AND TECHNICAL WORKERS OF the UNITED STATES AND CANADA. Angelo J. CEFALO et al., Appellants, v. Elwood MOFFETT et al. Angelo J. CEFALO, Individually and on behalf of the International Union of District 50, Allied & Technical Workers and its members, et al., Appellants, v. Elwood MOFFETT, Individually and as International President of District 50, Allied & Technical Workers, et al.
• Court: U.S. Court of Appeals — District of Columbia Circuit

163 US App. DC 46, 499 F.2d 1051 (1974)

Peter J. BRENNAN, Secretary of Labor, United States Department of Labor and Angelo J. Cefalo, Appellants, v. INTERNATIONAL UNION OF DISTRICT 50, ALLIED AND TECHNICAL WORKERS OF the UNITED STATES AND CANADA.

Angelo J. CEFALO et al., Appellants, v. Elwood MOFFETT et al.

Angelo J. CEFALO, Individually and on behalf of the International Union of District 50, Allied & Technical Workers and its members, et al., Appellants, v. Elwood MOFFETT, Individually and as International President of District 50, Allied & Technical Workers, et al.

Nos. 72-1494, 72-1495 and 72-2082.

United States Court of Appeals, District of Columbia Circuit.

Argued June 1, 1973.

Decided June 3, 1974.

Earl C. Dudley, Jr., Washington, D.C., with whom David N. Webster, Washington, D.C., was on the brief, for appellants. Paul Martin Wolff, Washington, D.C. also entered an appearance for appellants.

Winthrop A. Jones, Washington, D.C., with whom Joseph C. Wells and George H. Cohen, Washington, D.C., were on the brief, for appellee International Union of Dist. 50.

Michael Kimmel, Atty., Dept. of Justice, for appellee Brennan in Nos. 72-1494 and 72-1495. Harold H. Titus, Jr., U. S. Atty., Morton Hollander and Michael H. Stein, Attys., Dept. of Justice, were on the brief, for appellee Brennan in Nos. 72-1494 and 72-1495. Raymond D. Battocchi, Atty., Dept. of Justice, also entered an appearance for appellee Brennan in No. 72-1494.

Harold H. Titus, Jr., U. S. Atty., Walter H. Fleischer and Michael H. Stein, Attys., Dept. of Justice, filed a brief on behalf of the Secretary of Labor as amicus curiae in No. 72-2082.

Ross O'Donoghue, Washington, D.C., entered an appearance for appellee Moffett in No. 72-1495.

Before DANAHER, Senior Circuit Judge, and McGOWAN and LEVENTHAL, Circuit Judges.

LEVENTHAL, Circuit Judge:

These consolidated cases present appeals from rulings of the District Court in actions under the Labor-Management Reporting and Disclosure Act of 1959 (hereafter LMRDA or the Act) 29 U.S. C. § 481 et seq. The combined judgments, for which no stay was sought, permitted effectuation of a merger between District 50, Allied & Technical Workers,¹ and the Steelworkers.² The appellants, Angelo Cefalo and Samuel Vullo, who were candidates to become principal officers in District 50, contend that the merger, approved by a referendum of the membership of District 50, should be enjoined because it was negotiated by officers who had been elected in violation of Title IV of the Act, and, accordingly, that a new election of officers pursuant to Title IV was required as a matter of law prior to consideration by the membership of the merger. They also contend that the referendum, conducted under the supervision of the Secretary of Labor, was marred by irregularities. We affirm.

I. FACTUAL BACKGROUND AND DISTRICT COURT PROCEEDINGS

The factual and procedural background is complex, and our presentation necessarily somewhat simplified.

A. The Title IV Action

After the May 1970 referendum election of union officers in which defendant Elwood Moffett was reelected as president of District 50, the defeated Cefalo filed a complaint with the Secretary of Labor under § 402 of LMRDA.³ The Secretary found cause to believe the elections of the union officers and of the executive board had been conducted in violation of § 401 of the Act.⁴ In September 1970 the Secretary began an action (Civil Action 2864-70) against District 50, pursuant to Title IV of the Act, to set aside the elections. In March, 1971, a court order approved a stipulation between the Secretary and District 50 which provided that the Secretary would supervise (1) nomination and election of local delegates from the union's locals to a new convention, (2) nomination and election of the executive board at this convention, to be held in August 1971, and (3) after the convention, nomination and secret ballot election of principal officers. The election of executive board members was certified by the Secretary as conforming to Title IV of the Act. On March 13, 1972, the District Court granted Cefalo's petition, filed in October 1971, to intervene.⁵ On March 14, the District Court approved the results of the executive board election.

B. The Title V Action

Beginning in April, 1971, an attempt was made by the union officers to have the August 1971 convention approve a proposed merger with the Steelworkers, even though the proposal was not disclosed in the call to the convention and indeed was not revealed until most of the convention delegates had been chosen.⁶

In July 1971 Cefalo and Vullo began an action (Civil 1328-71) under Title V of LMRDA, against Moffett and District 50, and on August 18, the District Court issued a preliminary injunction, concluding that plaintiffs would probably prevail on the merits in showing that the union officers breached their fiduciary duty of trust and fair dealing established by § 501 of LMRDA, by failing to inform the union membership of the impending merger prior to selection of convention delegates, and by seeking approval of the merger by various locals' resolutions without revealing the pecuniary benefit the officers and staff of District 50 stood to gain from the merger.

The preliminary injunction of August 18 enjoined defendants from presenting, voting upon or effectuating the merger. On August 23, following an expedited hearing, this court modified the injunction to permit the August 1971 convention, then in session, to authorize the executive board elected at the convention to adopt a plan, subject to court approval, for holding a referendum of the membership of District 50 on the merger. Cefalo v. Moffett, 146 U.S.App.D.C. 117, 449 F.2d 1193 (1971). Our opinion and order emphasized the latitude of the District Court to specify procedures appropriate in achievement of the objective of a "free and informed vote of the Union's membership, not subject to undue influence." 146 U.S.App.D.C. at 123, 449 F.2d at 1199. We directed the District Court to seek the comments of the Secretary "in considering whether or on what terms and conditions to approve a plan for referendum on the merger." 146 U.S.App.D.C. at 124-125, 449 F.2d at 1200-01. The opinion noted that the Act placed exclusive enforcement authority in the Secretary to redress violations of Title IV rights, see Wirtz v. Local 153, Glass Bottle Blowers Ass'n, 389 U.S. 463, 473, 88 S.Ct. 643, 19 L.Ed.2d 705 (1968) and commented that on reflection the Secretary might conclude that the merger and referendum should be halted in order to preserve and vindicate Title IV rights to proper election of officers.

C. The Decision to Proceed with the Merger Referendum Without Awaiting The Election of New Officers.

On September 20, 1971, District 50 presented, by a motion filed in the Title V action, a plan for a merger referendum which had been developed with participation of the Steelworkers' lawyers and had gained the approval of the Department of Labor. Plaintiffs, objecting to the referendum plan, took several depositions, including particularly that of Acting Solicitor of Labor Alfred Albert. Various motions were filed, by plaintiffs to defer the referendum, and by the unions to expedite it. At a hearing in December the Department's counsel advised that the Department favored deferring the election of the officers until after the merger referendum.⁷ The District Court requested a written statement from the Secretary of Labor setting forth his position on the issue of the timing of the referendum and election of officers. The Secretary's memorandum filed January 3, 1972, outlined his view that a referendum on the merger vote should not be delayed until after a new election of officers.

On February 23, 1972, District Judge Parker issued an opinion and order in the Title V action which held that the membership of District 50 should proceed to vote for the approval or disapproval of the merger, and which approved "in principle" the referendum plan submitted by District 50, endorsed by the Secretary. The court held plaintiffs were entitled to "adequate and equal opportunity to express their opposition to the merger," and to submit counter-proposals, and ordered plaintiffs to submit such proposals as they contemplated would afford this opportunity. In their memorandum filed March 8, plaintiffs objected to any merger vote that preceded the election of new officers. On April 3, 1972, the District Court overruled plaintiffs' objections, and directed that a referendum vote be held no later than June 10, 1972, under the supervision of the Secretary (although he was not a party to the Title V action). The court ordered publication of a special supplement of at least six pages of the District 50 News with equal space for proponents and opponents of the merger. The order in the Title V action, directing that the referendum be held according to the approved plan, issued April 14, 1972, and is appealed in No. 72-1495.

The same issue was presented by Cefalo as intervenor in the Title IV action when he moved on March 21, 1972, for an order directing immediate election of officers, prior to the merger referendum.⁸ The denial of this motion by Judge Parker on April 3, 1972,⁹ is the order appealed in No. 72-1494.

D. Approval of the Merger

While the foregoing appeals were pending, the merger referendum was held, pursuant to the order in the Title V action. The merger was approved by a vote of 37,289 to 26,733. On June 30, 1972, after investigating complaints by the Cefalo group, the Secretary certified the results. On August 8, the District Court approved the merger by an order that is appealed in No. 72-2082. Plaintiffs' challenge is based on (a) a claim of inaccuracies in the mailing list, which the Secretary investigated and found that such inaccuracies as could be demonstrated were unavoidable; and (b) a claim that pro-merger campaign contributions were coerced, which the Secretary...