Gartner v. Soloner

• Decision Date: 01 September 1967
• Docket Number: No. 16291.,16291.
• Parties: Robert A. GARTNER, Appellant, v. Jack SOLONER, President, and Robert C. Brennan, Secretary-Treasurer, and American Bakery & Confectionery Workers International Union, AFL-CIO, Local 492, Appellees.
• Court: U.S. Court of Appeals — Third Circuit

384 F.2d 348 (1967)

Robert A. GARTNER, Appellant, v. Jack SOLONER, President, and Robert C. Brennan, Secretary-Treasurer, and American Bakery & Confectionery Workers International Union, AFL-CIO, Local 492, Appellees.

No. 16291.

United States Court of Appeals Third Circuit.

Argued April 3, 1967.

Decided September 1, 1967.

Rehearing Denied October 30, 1967.

Joseph A. Malloy, Jr., Hamilton, Darmopray & Malloy, Philadelphia, Pa., for appellant.

Alan R. Howe, Philadelphia, Pa., (Edward Davis, Philadelphia, Pa., on the brief), for appellees.

Before McLAUGHLIN and GANEY, Circuit Judges, and NEALON, District Judge.

OPINION OF THE COURT

GERALD McLAUGHLIN, Circuit Judge.

This appeal involves solely the question of whether counsel fees are allowable under Section 102 of the Labor-Management Reporting and Disclosure Act of 1959 (LMRDA), 73 Stat. 523 (1959), 29 U.S.C. § 412 (1964).

Appellant Robert Gartner was fined and suspended from Local 492 of the American Bakery and Confectionery Workers International Union, AFL-CIO, allegedly for protesting a denial of voting rights to union members. Gartner's appeal to the Union International was turned down and on June 24, 1963 he instituted this action under the Labor-Management Reporting and Disclosure Act of 1959. Aside from injunctive relief appellant sought counsel fees and other expenses incurred in pursuit of his rights under the LMRDA. The Court below found that the action taken by the union was in violation of 29 U.S.C.A. §§ 411 (a) (2) and 529, Sections 101(a) (2) and 609 of the Act. Although a permanent injunction in favor of appellant was filed on April 18, 1966, Gartner's claim for money damages was rejected by the District Court. Discussing the findings of fact the District Judge concluded that counsel fees could not be awarded under Section 102. We believe that decision must be reversed.

Title I of the LMRDA is the so-called civil rights provision of the Act. These rights are those possessed by the rank and file union members and are enumerated in Section 101. Section 102 provides for civil enforcement in the event a person's rights under Title I have been infringed upon. Section 102 reads:

"Any person whose rights secured by the provisions of this subchapter have been infringed by any violation of this subchapter 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 for the district where the alleged violation occurred, or where the principal office of such labor organization is located."

LEGISLATIVE HISTORY¹

The LMRDA originated with the reporting of the Kennedy-Ervin Bill to the Senate by the Committee on Labor and Public Welfare on April 14, 1959. However, that bill made no mention of a union member's bill of rights. The bill of rights along with the section pertaining to the civil enforcement of those rights was proposed as an amendment to the Kennedy-Ervin Bill by Senator McClellan. The enforcement section of that amendment provided:

"The Secretary, whenever it shall appear that any person has violated or is about to violate any of the provisions of this title, may bring an action in a district court or other court of the United States for such relief as may be appropriate including, but without limitation, injunctions to restrain any such violations and to compel compliance with this title. Any such action against a labor organization may be brought in the United States District Court for the District of Columbia or in the district court or other court of the United States where the violation occurred or is about to occur." Leg.Hist., Vol. II, p. 1102.

Those critical of the enforcement provision were concerned with the bureaucratic chaos that might result if the Secretary of Labor were required to initiate all complaints on behalf of aggrieved union members. Leg.Hist., Vol. II, pp. 1111-1114. To dispel these fears an amendment was offered by Senator Kuchel of California giving the union member, not the Secretary of Labor, the right to seek relief in the federal courts. The Kuchel amendment became the version ultimately adopted by the Senate and states:

"Any person whose rights secured by the provisions of this title have been infringed may bring an action in a district court of the United States for such relief as may be appropriate. Any such action against a labor organization shall be brought in the United States district court for the district where the alleged violation occurred, or where the headquarters of such labor organization is located." Leg. Hist., Vol. II, p. 1221.

In the House of Representatives the Landrum-Griffin Reform Bill (H.R. 8400, Leg.Hist., Vol. I, p. 619) was introduced as a substitute for the Kennedy-Ervin Bill, but contained basically the same remedy for civil enforcement of the bill of rights. Leg.Hist., Vol. I, pp. 631, 632. Thereafter the only substantial alteration was the parenthetical insertion of the words "including injunctions" to insure that at least an injunction would be considered appropriate relief under Section 102.

COURT DECISIONS

The first case to rule on the propriety of counsel fees under Section 102 was Vars v. International Brotherhood of Boilermakers, 215 F.Supp. 943 (D.Conn. 1963), where the court found that such allowances were intentionally excluded by Congress. As indicative of the legislative intendment the court referred to the dissenting House Report which stated:

"One of the most serious inadequacies of the Senate bill is the lack of any effective enforcement procedure to protect union members from those few union officials who fail to recognize that a union belongs to its members. Under that bill the individual member must shoulder the burden of litigation costs himself. The union officer sic, on the other hand, have the entire resources of the union at their disposal. This impractical enforcement method is weakened still further in the committee bill." U.S. Code Cong. & Ad.News, Legislative History, Vol. 2, 86th Cong., 1st Sess., p. 2492 (1959).

The Second Circuit affirmed the District Court decision, Vars v. Int'l Bhd. of Boilermakers, 320 F.2d 576 (2 Cir. 1963), but without mention of the lower court's disposition on the matter of counsel fees.

In McCraw v. United Ass'n of Journey. & App. of Plumbing, 216 F.Supp. 655 (E.D.Tenn.1963), the court was asked to consider counsel fees as appropriate relief under Section 102. Once more the court was of the opinion that the legislative history of the LMRDA militated against such recovery. Here, however, the court was persuaded by the following remarks of Senator Goldwater:

"Although the bill permits the union member himself to sue for infringement of his rights, the nature of the suit is such as to promise, even if successful, little in the way of monetary damages except in the rare case where the plaintiff\'s job rights or job tenure have been adversely affected. Moreover, the bill does not grant him, even where successful in his suit, reasonable counsel fees or other costs." Leg.Hist., Vol. II, p. 1281.

On appeal the Sixth Court affirmed the District Judge's finding "* * * that no provision is made for the allowance of attorney's fees in an action under Section 101 or 102 of the Act. * * *." McCraw v. United Ass'n of Journey. & App. of Plumbing, 341 F.2d 705, 710 (6 Cir. 1965).

The decision in Cole v. Hall, 35 F.R.D. 4 (E.D.N.Y.1964), although acknowledging that counsel fees might be granted in an action at common law,² found no basis for such a claim under the LMRDA. Beside relying on the Vars and McCraw cases the court in Cole thought it significant that Section 501(b) of Title V of the LMRDA made allowances for fees and if Congress had intended to make a similar provision in Title I it would have so acted.

Johnson v. Nelson, 325 F.2d 646 (8 Cir. 1963) lends solid support to appellant's position. There, internal union strife arose over the payment of attorneys' fees incurred by union members after they had successfully asserted their rights under Title I of the Act. A Special Trial Board, constituted pursuant to a stipulation entered into in the first federal court (Title I) proceeding, recommended that attorneys' fees and expenses for both sides in the conflict be paid by the union local. The recommendation was then approved by a constitutional vote of the local membership. When the union would not comply with the Board's directive or recognize the membership vote an action was commenced under Title V, Section 501(b) of the LMRDA to compel the payment of fees and expenses. The Court of Appeals for the Eighth Circuit affirmed the decision to award counsel fees stating that, "We are by no means announcing a rule requiring payment of attorneys' fees to successful union member litigants in every Title I court proceeding — regardless of the circumstances." 325 F.2d 646 at 654. The court cited Vars, supra, but distinguished it on the factual points that in Vars there was an attempt to recover fees in the Title I action³ plus the conspicuous absence of the union vote approving the payment by the local.

The District Court below in denying appellant's claim for expenses considered the expressions of Senator Goldwater to mirror the legislative intent, citing the opinions in Vars, McCraw and Cole as further authority for that view. Distinguishing Johnson v. Nelson, supra, the District Judge commented that "of prime significance" in the Johnson case was the membership vote to reimburse the litigants, which fact does not appear in this appeal.⁴

COUNSEL FEES AS PROPER RELIEF UNDER SECTION 102

It does not seem that to date the legislative intent in the LMRDA as to counsel fees has been closely examined, indeed the specific language of Section 102, if anything, has been unwarrantably circumscribed. The Act gives the federal courts, in precise terms, the authority...