Cox v. Hutcheson

• Decision Date: 23 March 1962
• Docket Number: No. IP-61-C-103.,IP-61-C-103.
• Citation: 204 F. Supp. 442
• Parties: J. Vernon COX, as a member of the United Brotherhood of Carpenters and Joiners of America (hereinafter designated the Union), and as a member of both Local 60 (hereinafter designated the Local) and the Central Indiana District Council of Carpenters of the United Brotherhood of Carpenters and Joiners of America (hereinafter designated the District Council), for and on behalf of himself and all other members similarly situated, Plaintiff, v. M. A. HUTCHESON, as (1) an individual and (2) as General President of the Union and (3) as Chairman of the General Executive Board of the Union, being the Union's governing body, hereinafter designated as the G.E.B.; John R. Stevenson, as (1) an individual, and (2) as First General Vice-President of the Union; O. William Blaier, as (1) an individual, and (2) as Second General Vice-President of the Union; R. E. Livingston, as (1) an individual, and (2) as General Secretary of the Union, and (3) as Secretary of the G.E.B.; et al., Defendants, Carpenters' Local Union No. 60 of the United Brotherhood of Carpenters and Joiners of America, and O. F. Suhr, Rex Holdeman, and Chester A. Bereman, in their respective capacities as President, Financial Secretary, and Business Representative of said Local Union No. 60, and in their individual capacities as members of said Local Union, for and on behalf of themselves, and all other members of Local Union No. 60 similarly situated, Intervening Petitioners.
• Court: U.S. District Court — Southern District of Indiana

204 F. Supp. 442

J. Vernon COX, as a member of the United Brotherhood of Carpenters and Joiners of America (hereinafter designated the Union), and as a member of both Local 60 (hereinafter designated the Local) and the Central Indiana District Council of Carpenters of the United Brotherhood of Carpenters and Joiners of America (hereinafter designated the District Council), for and on behalf of himself and all other members similarly situated, Plaintiff, v. M. A. HUTCHESON, as (1) an individual and (2) as General President of the Union and (3) as Chairman of the General Executive Board of the Union, being the Union's governing body, hereinafter designated as the G.E.B. John R. Stevenson, as (1) an individual, and (2) as First General Vice-President of the Union O. William Blaier, as (1) an individual, and (2) as Second General Vice-President of the Union R. E. Livingston, as (1) an individual, and (2) as General Secretary of the Union, and (3) as Secretary of the G.E.B.; et al., Defendants Carpenters' Local Union No. 60 of the United Brotherhood of Carpenters and Joiners of America, and O. F. Suhr, Rex Holdeman, and Chester A. Bereman, in their respective capacities as President, Financial Secretary, and Business Representative of said Local Union No. 60, and in their individual capacities as members of said Local Union, for and on behalf of themselves, and all other members of Local Union No. 60 similarly situated, Intervening Petitioners.

No. IP-61-C-103.

United States District Court S. D. Indiana, Indianapolis Division.

March 23, 1962.

Bingham, Summers & Spilman, Indianapolis, Ind., Weisgal & Sollins, Baltimore, Md., Emmert & Robison, Shelbyville, Ind., Jacobs & Jacobs, Indianapolis, Ind., for plaintiffs.

Royse, Travis, O'Brien & Hendrickson, Indianapolis, Ind., for defendants.

Sherwood Blue, Indianapolis, Ind., for intervening defendants.

DILLIN, District Judge.

Plaintiff filed this action for a permanent injunction against the defendants as individuals and in their respective capacities as officers of the United Brotherhood of Carpenters and Joiners of America (the Union). He asserts a cause of action pursuant to Sections 102, 304 and 609 of the "Labor-Management Reporting and Disclosure Act of 1959" (the Act) (29 U.S.C.A. §§ 412, 464(a) and 529) on behalf of himself and all other similarly situated members of Local 60 of the Union (the Local), and the Central Indiana District Council of Carpenters of the United Brotherhood of Carpenters and Joiners of America (the District Council).

Plaintiff alleges that in 1960 he testified as a witness called by the State of Indiana in a criminal case wherein the defendants Hutcheson, Blaier and another were charged and convicted of conspiracy to bribe certain officials of the State of Indiana, and that because of his giving such testimony the defendants caused false charges to be filed against him in the District Council, of which he was tried and acquitted. That defendants have conspired to defraud, and have defrauded the Union of large sums of money, and that suits are now pending in other courts to recover such sums; that plaintiff has offered to intervene and assist in such litigation against defendants, as they know.

That plaintiff is president of the District Council, and that to deter plaintiff, or any other member of the Union, or local of the Union, or subordinate body thereof, defendants have begun to destroy the District Council by instructing its locals to refuse to pay legal and valid assessments, and in ordering plaintiff to appear before a committee composed of defendants, under the pretext of investigating conduct which they denominate "contrary to the welfare of the Union." That by causing legitimate revenue to be withheld from the District Council, and by asserting unlimited powers over its affairs, including the right to dictate who its officers may be, defendants have established a de facto trusteeship over it for corrupt and personal reasons, and not for any of the reasons prescribed in Section 302 of the Act, 29 U.S.C.A. § 462.

The prayer is that the defendants be ordered to withdraw their instructions to locals to withhold valid assessments from the District Council, and that they be enjoined from penalizing plaintiff, or the District Council, or placing it under trusteeship, and from penalizing or applying economic coercion against any member or subordinate body of the Union for the purpose of intimidating them from seeking legal redress under the law of the land.

The defendants Johnson, Rajoppi, Schwarzer, Chandler, Mack, Hiller, and Cambiano were served or purportedly served with process, all outside the State of Indiana, and none of them is a citizen of Indiana. Service as to the defendants Cooper and Bengough, citizens of Canada, was attempted to be made in Indiana upon an attorney for the Union, who refused to accept the same. All of such defendants have filed motions to quash the process and to dismiss plaintiff's claim as to each of them for insufficient service and improper venue. Plaintiff has conceded in his brief that such motions are well taken, and the Court so finds. Blank v. Bitker, 135 F. 2d 962 (7th Cir., 1943). No service of process has been obtained upon the defendants Blaier and Roberts.

Process was properly served upon the defendants Hutcheson, Stevenson, and Livingston, citizens of Indiana, (hereinafter referred to as "the defendants"), who appeared generally and filed motion to dismiss plaintiff's claim upon various grounds, some of which will be discussed individually hereafter.

The defendants first assert lack of jurisdiction over the subject matter because neither the Union nor any other labor organization is made a party defendant and, they say, Sections 102 and 304(a) of the Act provide only for actions against labor organizations. They also assert lack of jurisdiction over the person of the defendants for the same reason, i. e., that the Act does not authorize suit against individuals or officers of labor organizations.

We agree that no labor organization is named as a party defendant, because not so styled in the caption of the complaint. Rule 10(a), Federal Rules of Civil Procedure, 28 U.S.C.A. It is neither sued in its common name, pursuant to Rule 17(b), F.R.C.P., nor in the manner provided by Indiana law. Nelson v. Haley (1953) 232 Ind. 314, 111 N.E.2d 812, 112 N.E.2d 442. However, we disagree in part with defendants' interpretation of the Act.

The first proviso in Section 101(a) (4) of the Act, 29 U.S.C.A. § 411(a) (4), upon which plaintiff's complaint says that he relied in giving testimony against Hutcheson, et al., in the criminal case and in offering to intervene against the defendants in the pending civil cases, reads as follows:

"Provided, That any such member may be required to exhaust reasonable hearing procedures (but not to exceed a four-month lapse of time) within such organization, before instituting legal or administrative proceedings against such organizations or any officer thereof:"

Section 101(a) (5) of the Act, upon which plaintiff relies, reads in part as follows:

"No member of any labor organization may be fined, suspended, expelled, or otherwise disciplined except for non-payment of dues by such organization or by any officer thereof * * *."

Finally, Section 609 of the Act provides:

"It shall be unlawful for any labor organization, or any officer, agent, shop steward, or other representative of a labor organization, or any employee thereof to fine, suspend, expel, or otherwise discipline any of its members for exercising any right to which he is entitled under the provisions of this Act. The provisions of Section 102 shall be applicable in the enforcement of this section."

The defendants predicate their argument upon the language of Section 102 of the Act which reads as follows:

"Any person whose rights secured by the provisions of this title have been infringed by any violation of this title may bring a civil action in a district court of the United States for such relief (including injunctions) as may be appropriate. Any such action against a labor organization shall be brought in the district court of the United States * * where the alleged violation occurred, or where the principal office of such labor organization is located."

The defendants urge a narrow construction of the second sentence contained in Section 102, that the intention of such sentence is to limit actions for violation of Title I of the Act, 29 U.S. C.A. § 411 et seq. to actions against labor organizations only, and they cite Tomko v. Hilbert, 288 F.2d 625 (3rd Cir., 1961) in support of their position.

We construe the second sentence in Section 102 as intended merely to fix the venue of cases in which a labor organization is, in fact, made a party defendant. In the light of the other language contained in the Act, as above set out, we do not believe that it was intended to limit Title I suits to those against labor organizations as such. Far from being authority for the defendants' position, the Tomko case dismissed plaintiff's action because he sued certain union officials as individuals, and not in their capacities as officials of the union. The case specifically holds, at page 627, "Section 609, 29 U.S.C.A. § 529, protects union members who attempt to enforce their rights under the LMRDA against recriminatory acts of labor organizations or their representatives and not the world at large." The case is, however, authority for the proposition that the Court in the present case has jurisdiction over the defendants only in their official capacities, and not as individuals.

It is therefore our opinion that proceedings alleging a violation of Title I of the Act may, in an appropriate case, be brought against either a labor organization or its officers, for wrongful acts rendered by them in their official capacities, or both. However, we agree with the defendants that actions arising out of...