Nelson v. Johnson

Decision Date11 January 1963
Docket NumberNo. 4-61-Civ. 280.,4-61-Civ. 280.
Citation212 F. Supp. 233
PartiesLester R. NELSON, L. Boerebach, C. H. Bunkholt, Gunnar Peterson, E. H. Everetts, Ralph Hallberg, Harry Burns and Vern Thomay, Petitioners, v. Alfred JOHNSON and Robert J. Jensen, Respondents.
CourtU.S. District Court — District of Minnesota


James C. O'Neill, and Bundlie, Kelley & Torrison, St. Paul, Minn., for petitioners.

Francis X. Helgesen, and Helgesen, Kane, Peterson & Engberg, Minneapolis, Minn., for respondents.

LARSON, District Judge.

Petitioners ask this Court to amend its Findings of Fact, Conclusions of Law and Order for Judgment filed July 31, 1962.

The Court has considered the arguments and briefs of counsel.

Two prior Orders have been filed in this case, one on April 13, 1962, and one on July 31, 1962. These Orders are hereby withdrawn and set aside and the following Findings and Conclusions substituted as the final decision of this Court in this case.

This is an action by eight members of Local 386 of the Brotherhood of Painters, Decorators and Paperhangers of America, AFL-CIO, as Petitioners against the Respondents Alfred Johnson, President, and Robert J. Jensen, Treasurer of the Union, under Sections 501(a) and (b) of the Labor Management Reporting and Disclosure Act of 1959, 73 Stat. 535, 29 U.S.C. 501(a) and (b), commonly known as the Landrum-Griffin Act.1 Several Petitioners are also officers of the Union. The Petitioners claim that under Section 501(a) the Respondents are in positions of trust with respect to the Union, and that as officers they have certain duties which they have violated. Specifically, Petitioners claim that Respondents have violated the following provisions of 501 (a) in that they:

1. failed to hold the money and property of said local union solely for the benefit of the organization and its members;
2. failed to expend the same in accordance with the union constitution and by-laws and resolutions of the membership thereof;
3. failed to refrain from dealing with said Union as an adverse party in any matter connected with their duties; and
4. failed to refrain from holding or acquiring any pecuniary or personal interest which conflicts with the interests of such organization.

Petitioners claim that Respondents have refused to sign checks in payment of certain bills which have been approved by the membership of the Union. The most substantial item ($3,475.00) is a claim for reimbursement for fees for services paid to attorneys in what will be referred to later as the first federal court action. In addition, four of the Petitioners ask for reimbursement of expenses totaling $263.44.

Petitioners ask that this Court grant an injunction directing Respondents to execute checks in payment of these bills and that the Court declare that the Respondents did not comply with the requirements of Section 501(a) in the manner stated above.

In their answer Respondents allege in part that the Court lacks jurisdiction over the subject matter of the action.2 The remainder of their answer essentially denies the Petitioners' allegations.


1. The Petitioners are members of Local No. 386 of the Brotherhood of Painters, Decorators and Paperhangers of America, AFL-CIO. Petitioner Burns is the vice president of the Local. Petitioners Everetts and Thomay are trustees. Petitioner Hallberg is a member of the Executive Board.

2. Respondents are respectively president and treasurer of the Local Union.

3. The Local Union has approximately 2,200 members. Seven members constitute a quorum for meetings. The International Constitution and the Local By-Laws require that all bills must be approved first by the trustees and then by the membership of the Local Union before payment. Respondents have the duty, as president and treasurer of the Local, to sign checks in payment of bills thus approved. They have refused to sign checks so approved which were to be paid to some of the Petitioners as reimbursement for expenses and attorneys' fees incurred by them in setting aside certain decisions of the Local Union Trial Board.

4. Prior to May 16, 1960, there were strong differences of opinion within the Local concerning wage negotiations which were being conducted by various incumbent officers. Petitioners and other union members held various meetings at their homes for the purpose of selecting an opposition slate of candidates to run against Respondents and other incumbent Local Union officers.

5. At the nomination meeting of May 16, 1960, before Petitioners had nominated their opposition candidates, the incumbent business agent of the Local, Carlson, preferred charges against twelve union members (most of them were opposition candidates), including six Petitioners herein, alleging violations of numerous union principles.

6. On June 14, 1960, a special meeting of the Local Union was had for the purpose of determining the reason for and nature of the charges brought against Petitioners and other opposition candidates. At this meeting the charging party, Carlson, the incumbent business agent, with the assistance of the representative of the International Union, Petersdorf, read from an affidavit which accused some of the charged union members of being Communists, and when asked to specify names, replied that all those charged were equally guilty. During this meeting Respondent Johnson unduly interrogated the signers of the petition for the special meeting, and Respondent Jensen twice moved to adjourn the meeting before it had been completed. The business agent was instructed by the membership to withdraw his charges. He refused to do so.

7. Petitioners and other members charged requested the International's president, in late June, 1960, to take jurisdiction over their trials, stating their belief that they would not receive a fair trial from the Local's Trial Board, which was composed of incumbent officers and business agents. The International President refused to do so by letter dated July 7, 1960, expressly pointing out to Petitioners that they had a right to appeal any adverse determinations to the International Union.

8. The first series of union trials were had for the charges filed against Petitioners and others in July, 1960. Respondent Johnson, as president of the local union, was chairman of the Trial Board. Four of the five Trial Board members were Johnson, two incumbent assistant business agents, and a Johnson appointee who took the place of a Trial Board member who had also been charged. The first three union members tried were tried in accordance with the trial procedures set forth in the Union Constitution and they were acquitted. Thereafter the Trial Board changed the trial procedures; the accused were denied the right to have another accused union member act either as counsel or as witness and were presumed to be guilty instead of innocent of the charges, all in violation of the Union Constitution. All of the remaining charged union members were then found guilty and were either fined or suspended. Respondent Jensen acted as a witness for the charging party, Carlson, the incumbent business agent, in all trials held after the trial procedures were changed. The Trial Board had secretly met with the charging party, Carlson, before the trials to consider his evidence and had resolved that a constant vigil of the charged union members should be had pending trial. Respondents further admitted in engaging in surveillance of Petitioner Nelson's house earlier in the year, accompanied by the charging party, Carlson, his two assistant business agents (members of the Trial Board) and others.

9. Petitioners appealed to the International Union for relief from the adverse determinations of the Local Trial Board. Despite the obvious violations by the Trial Board of the trial procedures and rights of Petitioners as set forth in the Union Constitution, the International Union in October, 1960, affirmed the unlawful action of the Local Trial Board.

10. In December, 1960, Petitioners and others brought an action in this Court (4-60-Civ. 344) charging Respondents and others with violation of sections 101(a) (2) and (5) of the L.M.R.D.A., 29 U.S.C. 411(a) (2) and (5) and sought to set aside the improper disciplinary awards. After the Court had issued a temporary injunction against Respondents therein, when the case came on for trial on the merits the parties thereto entered into a stipulation, approved and adjudged binding by the Court, whereby the decisions of guilt made by the Trial Board and the penalties imposed thereby were set aside and withdrawn. Petitioners incurred attorneys' costs of $3,475 in that action and other expenses and costs totaling $262.44 in the first Union trials.

11. On February 6, 1961, the membership of the Union approved (by approximately a 32 to 13 vote) the payment of the Petitioners' attorneys' fees in the first federal court action. The membership of the Union also approved for payment the bill for the attorneys' fees of Respondents and other defendants in the first federal court action. The incumbent business agent Carlson announced at this meeting that he opposed the payment of Petitioners' attorneys' fees and would bring this approval up for rescission at the next meeting.

12. On February 20, 1961, the membership of the Union, by a vote of 142 to 89, rescinded the action of February 6, 1961, only insofar, however, as Petitioners' reimbursement for their attorneys' fees and related expenses were concerned.

13. In May, 1961, new charges were filed by the business agent Carlson against various Petitioners and other members alleging violation of various union principles. The alleged violations pertained to the May, 1960, meetings held by Petitioners in their homes regarding their selection of opposition candidates and to various statements made by Petitioners in their affidavits in the first federal court action. Pursuant to...

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