Full opinion text
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 These Orders are hereby withdrawn and set aside and the following Findings and Conclusions substituted as the final decision of this Court in this case.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. 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. The remainder of their answer essentially denies the Petitioners’ allegations. FINDINGS OF FACT 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 ByLaws 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 ease 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 stipulation entered into in the first federal court action, the membership of the Local Union elected a Special Trial Board to hear these charges. Attorneys represented both the charging party and the accused Union members in this second series of union trials, all witnesses were sworn and a court reporter transcribed the testimony. Lester Nelson was the first Petitioner tried in July, 1961. His trial took six nights. After the trial, but before the Special Trial Board had repox-ted its decision to the membership, the x*epresentative of the International Union, Petersdorf, recommended a settlement of all issues to the Special Trial Board on July 25, 1961. This recommendation included a provision that all attorneys’ fees and expenses for both groups were to be paid. 14. On August 7, 1961, this Special Trial Board dismissed the charges against Nelson, reprimanded both gx*oups, and recommended that the attorneys’ fees and expenses for both sides in the two series of union trials and in the first federal court action be paid by the Local Union. The membex*ship of the Local, on August 7, 1961, approved this recommendation.. Respondent Johnson declared 'his disapproval of the Tidal Board recommendation on this occasion. 15. On August 12, 1961, in the absence of Respondent Jensen, the regular treasurex-, Johnson appointed an acting treasurer, Romine, who might be described as being in Johnson’s “camp.” Romine wrote a letter to the General President of the International Union requesting him to investigate the propriety of paying Petitioners’ attorneys’ fees as recommended by the Special Txdal Board. The request was made withoxxt authorization or direction from the membership of the Local Union. 16. On August 18, 1961, the General President of the International replied to Romine and suggested that he hold up payment of Petitioners’ attorneys’ fees until an investigation had been made. The acting treasurer advised Respondent Johxxson of the receipt of this letter. 17. On August 21, 1961, Respondent Johnson attempted to rescind the approval of the membexnhip of the Special Trial Boai'd’s recommendations. The attempted rescission failed. The suggestion of the International President was read. The membership voted not to adopt this suggestion. Johnson then submitted to the membership for approval or disapproval the vouchers of Petitioners, item by item, for their attorneys’ fees and expenses in the first federal court action. The membership approved these expenses, item by item, by a vote of 38 to 16. 18. On September 4,1961, Respondent Johnson wrote the International President and requested an order from the International President that he, Johnson, should not pay these bills. This letter was written after the membership had directed Respondents to pay the bills and was written by Johnson without authorization from the membership. 19. On September 6 and September 13, 1961, the officers of Local 386 met with Respondents and voted 8 to 0, Respondents abstaining, directing Respondents to pay the bills of Petitioners. Respondents refused to do so. Respondent Johnson on both of these occasions sought Petitioners’ agreement to submit their bills to the entire membership by a referendum vote. Petitioners refused to do so on the ground that their bills were lawful, had already been duly approved, and Respondents had the duty under the Constitution and By-Laws to execute checks in payment thereof. 20. Later in September, 1961, Respondent Johnson sought out the same International representative, Petersdorf, who had previously recommended to the Special Trial Board that all attorneys’ fees be paid, and was then advised orally by Petersdorf not to pay Petitioners’ duly approved bills. Respondent Johnson also sought out and was advised orally by an International Vice President not to pay Petitioners’ duly approved bills. 21. On September 18, 1961, Respondent Johnson replied to questions from the Union membership regarding his nonpayment of these bills that he was under orders from the International not to pay these bills. 22. On September 29, 1961, the General President of the International Union, in response to Romine’s and Johnson’s letters, advised by letter Romine, the Respondent Jensen and Respondent Johnson that the investigation of the International had been completed and that “in our opinion” Petitioners’ bills and expenses were “individual indebtedness of these members” and should not be paid by the Local Union. None of the Petitioners were contacted during this “investigation.” The letter said that there was “no objection” to payment of attorneys’ fees for the Union trials. 23. These communications were read to the membership on October 2, 1961. Petersdorf, the representative of the International Union was present at said meeting and stated that if the Respondents did pay the bills they would be acting in violation of the Union Constitution and subject to removal. At this same Union meeting Petitioners’ attorneys served a notification on behalf of Petitioners to the Union officers, pursuant to section 501(b) of the L.M.R.D.A., requesting corrective or remedial action to be taken by the Union officers against Respondents for their refusal to pay the bills, or else Petitioners would themselves commence action. Respondents and Petersdorf told Petitioners to go ahead. 24. This litigation was commenced on October 16, 1961. 25. On November 15, 1961, a month after this litigation began, the General Executive Board (GEB) of the International Union unilaterally, on its own motion, determined that the action of the Local in approving the recommendations of the Trial Board respecting payment of fees and expenses for Petitioners was null and ineffective because the approval was “the subject of an unauthorized recommendation and because [it was] not properly voted upon.” The GEB suggested that the membership of the Local reconsider its authorization of the reimbursement to Petitioners “for the reasons: (1) that it is against the general policy of the Brotherhood to sanction expenditure of local union funds for such purposes and, (2) the expenditure of such funds for such purposes might well constitute a violation of Title V of the LandrumGriffin Act.” The GEB further determined that if the Local nevertheless decided to conduct a vote on the question of authorizing the expenditure for such purposes, the Local should take such vote by secret ballot referendum vote of the entire membership by mail. The GEB did not cite any Union constitutional provisions as authority for the above mentioned conclusions. 26. The Local has not taken the sug-' gested referendum vote. DISCUSSION AND CONCLUSIONS OF LAW I. PRELIMINARY DECISION AS TO THE INTERPRETATION OF SECTION 501 The instant case involves section 501 of the L.M.R.D.A. This is an important section. It will doubtless play a large role in the L.M.R.D.A. It has been praised on the one hand and denounced on the other. However, it does raise certain problems. This section speaks’ broadly in one breath and narrowly in the next. Union officers are said to occupy “positions of trust.” Volumes have been written on the duties of trustees; the wealth of authority staggers the imagination. The next sentence enumerates certain duties but the list is obviously not complete, for the reader is told to take into account “the special problems and functions of a labor organization.” The duties are thus as broad as human experience in the labor field. Officers are told, inter alia, not to deal adversely with their unions. This latter word is one of apparent simplicity, but its meaning has not been simple of decision in this case, now in its third appearance before this Court alone. Further, section 501(b) provides, upon violation of part (a), that suits may be brought “to recover damages or secure an accounting or other appropriate relief.” The first two forms of relief involve money. Is the “other appropriate relief” limited to pecuniary matters or could broader relief, including an injunction, be had thereunder? Doubt is cast upon the question by part of the legislative history and because another part of the Act specifically provides injunctive relief to secure similar rights. See section 102 of the Act, 29 U.S.C.A. § 412. A preliminary decision is thus necessary. What role are the Courts to play in deciding cases under § 501 ? One possible answer appears in the case of Textile Workers Union of America v. Lincoln Mills of Alabama, 353 U.S. 448, 77 S.Ct. 912, 1 L.Ed.2d 972 (1956). That now famous decision involved the meaning of section 301(a) of the Taft-Hartley Act of 1947, 61 Stat. 156, 29 U.S.C.A. § 185. One line of authority had held that section to be jurisdictional only. Another body of cases had held that it authorized federal courts to fashion a body of federal law for the enforcement of collective bargaining agreements. After an extensive review of the legislative history, the Court took the latter approach, saying 353 U.S. at 456-457, 77 S.Ct. at 917-918, 1 L.Ed.2d 972: “We conclude that the substantive law to apply in suits under § 301(a) is federal law, which the courts must fashion from the policy of our national labor laws. See Mendelsohn, Enforceability of Arbitration Agreements Under Taft-Hartley Section 301, 66 Yale L.J. 167. The Labor Management Relations Act expressly furnishes some substantive law. It points out what the parties may or may not do in certain situations. Other problems will lie in the penumbra of express statutory mandates. Some will lack express statutory sanction but will be solved by looking at the policy of the legislation and fashioning a remedy that will effectuate that policy. The range of judicial inventiveness will be determined by the nature of the problem. See Board of Commissioners v. United States, 308 U.S. 343, 351 [60 S.Ct. 285, 84 L.Ed. 313]. Federal interpretation of the federal law will govern, not state law. Cf. Jerome v. United States, 318 U.S. 101, 104 [63 S.Ct. 483, 87 L.Ed. 640]. But state law, if compatible with the purpose of § 301, may be resorted to in order to find the rule that will best effectuate the federal policy.” Is this sort of mandate equally applicable to § 501 of the L.M.R.D.A. ? Lincoln Mills is not mentioned in the legislative history, but Senator Javits said, “Once fiduciary responsibility is stated it will soak up all the common law, all the state law, and all the Federal law.” 105 Cong. Rec. 5855 (daily ed. April 23,1959). The legislative history will be more fully discussed later. It will be adequate here to state that the relevant House committee report, Supplementary Report, H.Rep. No. 741, 86th Cong., 1st Sess. 81 (1959), and corresponding remarks on the Senate floor, 105 Cong.Rec. 16415 (daily ed. Sept. 3, 1959) (remarks of Senator Kennedy) are in accord on the instant point: “The general principles stated in the bill are familiar to the courts, both State and Federal, and therefore incorporate a large body of existing law applicable to trustees, and a wide variety of agents.” All the commentators have simply assumed that methods similar or equal to those outlined in Lincoln Mills will have to be employed to a provision drafted in the manner previously described. Wollett, Fiduciary Problems Under Landrum-Griffin, New York Univ. Thirteenth Annual Conference on Labor 267, 273 (1960); Dugan, Fiduciary Obligations Under the New Act, 48 Georgetown L.J. 277, 298 (1959); Note, The Fiduciary Duty of Union Officers under the L.M.R.D.A.: A Guide to the Interpretation of Section 501: 37 N.Y.U.L.Rev. 486, 489 (1962). It is thus not surprising that the courts have all followed this path. The leading case under Section 501 is Highway Truck Drivers and Helpers Local 107 v. Cohen, 182 F.Supp. 608, 617 (E.D.Pa.1960), aff’d 284 F.2d 162 (3rd Cir.), cert, denied, 365 U.S. 833, 81 S.Ct. 747, 5 L.Ed.2d 744. Speaking of Section 501, the Court there said: “This section, quoted earlier, attempts to define in the broadest terms possible the duty which the new federal law imposes upon a union official. Congress made no attempt to ‘codify’ the law in this area. It appears evident to us that they intended the federal courts to fashion a new federal labor law in this area, in much the same way that the federal courts have fashioned a new substantive law of collective bargaining contracts under § 301(a) of the Taft-Hartley Act, 29 U.S.C.A. § 185(a). See Textile Workers Union of America v. Lincoln Mills, 1957, 353 U.S. 448, 77 S.Ct. 923, 1 L.Ed.2d 972. In undertaking this task the federal courts will necessarily rely heavily upon the common law of the various states. Where that law is lacking or where it in any way conflicts with the policy expressed in our national labor laws, the latter will of course be our guide. “We turn then to Section 501, not expecting to find a detailed command or prohibition as to the particular act complained of, but rather to find a general guide which, properly developed, will lead us to an answer.” Most of the above language was quoted with approval in Penuelas v. Moreno, 198 F.Supp. 441, 447 (S.D.Cal.1961). Another court has also concluded that Congress, in enacting the L.M.R.D.A., intended the federal courts to fashion and apply a body of law based upon the policy of our national labor laws. Parks v. International Brotherhood of Elec. Workers, 203 F.Supp. 288, 292 (D.Md.1962), citing authority at n. 10. All of the foregoing indicates that in ascertaining the fiduciary duty imposed by section 501 it will be both necessary and desirable to examine closely the policy and purposes of the L.M.R.D.A. and to rely with confidence on the applicable state decisions. II. VIOLATION OF THE DUTY IMPOSED BY THE STATUTE The Petitioners’ allegations here are essentially that these Respondents have violated their positions of trust by taking a position adverse to their union, e. g., not paying these Petitioners as ordered. There is no question that they have not obeyed their Local; the question is whether they have an excuse. This in turn hinges upon whether the letters from the General President and the General Executive Board can validly be interposed between the Respondents and their Local. It should first be pointed out that there is strong evidence, and this Court has found, that these Respondents made both written and oral attempts to solicit “orders” from the higher levels of the Union to justify their non-execution of the checks. Conceivably, it might be possible to say simply that these facts show that there was no actual fear of reprisal from the General President or the General Executive Board, that their reliance on these letters was not in good faith, and that they have therefore acted adversely in not paying the checks as ordered. The evidence suggests, however, that the higher levels of the Union, once brought into the matter, actually did oppose payment of these attorneys’ fees. See Findings of Fact 20, 23, and 25, supra. It might also be inquired whether there was any basis in the Union Constitution for the unilateral action taken by the GEB— one month after this suit was started. There is also evidence that the Respondents have a strong personal animosity toward these Petitioners. The evidence suggests that the Respondents particularly resent the Petitioners’ successful resort to the federal courts in the first suit. Other factors, however, demand consideration. The other factors are, of course, the letters received by the Respondents from higher levels in the Union. These letters comprise the principal, if not the only, defense of the Respondents in this case. The letters of the General President can hardly be considered of any great weight. They suggest and advise but do not direct or command. The Respondent Johnson seems to have understood that the letter of August 18, 1961, was not an order because on August 21 he attempted to rescind previous approval of these attorneys’ fees and on September 4 he wrote to the General President requesting an “order.” See Findings of Fact numbers 17 and 18. The letter of September 29 from the General President is also couched in the form of an opinion. Oral communications which the Respondents might have received (after soliciting them) might have been in the form of orders, but it would seem that the only thing which can save the Respondents here is the letter from the GEB on November 15, 1961, containing numerous reasons why the checks should not be paid. These objections by the GEB should be examined in some detail, despite their somewhat unusual manner of announcement to the Local. It might first be recalled that these pronouncements are by the same body which solemnly approved the convictions obtained in the first Union trials, trials in which carefully drawn Union procedure was thrown to the winds and previously innocent Union members were arbitrarily presumed to be guilty. Although the apparent blindness to justice in that case and the readiness to thwart the Local’s wishes in the instant matter seem somewhat inconsistent, it is, of course, not necessary to decide whether that body measured out justice with an uneven hand. None of those people are parties to this action. It is the Respondents’ conduct only which is being adjudicated. However, it could be remarked that the GEB, once prodded to action, was not loathe to concoct a potpourri of reasons why these checks should not be issued. The call of duty was heard with indolence there and alacrity here. More important, however, is the possibility that rights conferred by Congress which were denied there were also discouraged here. The GEB first said that the payments were the “subjects of an unauthorized recommendation.” There can be no doubt that these payments were both suggested by the Trial Board of the Union and approved by the membership at a lawful meeting. Section (6) (a) of the Union Constitution provides, inter alia, that the funds of a local union may be used for such purposes “as may be required to properly transact its business, including * * * the payment of legally authorized bills.” Section 163 appears to give to the local membership the power to determine what obligations the local shall pay. There is not a mention in the Constitution that this type of bill cannot be authorized. There is no question but that these bills were authorized. Therefore, this reason is without xnerit. The GEB next said that these matters were not properly voted on, and were therefore null and ineffective. No specific px'ovision of the Constitution was cited in support of this proposition. Careful scrutiny of that document reveals no indication that this matter could not be handled at a regular meeting. Some matters do require special procedure. For example, before a local can levy an assessment upon the membership to provide funds to relieve distress among member’s totally disabled from earning a living on account of injuries or sickness incurred while working at the trade, all members shall be legally notified that the proposed assessmexxt will be given consideration at the next meeting. Union Constitution, section 161(b). In addition, notice of the nomination meeting and the election meeting must be given by mail sent to ALL members at least five days prior to the nomination meeting. Such notice is to clearly state the date, time, place and purpose of these meetings. Union Constitution, section 170(b). There is no mention of special procedures in other circumstances. The number of members which considered the matters in question here seems to have been the average number of people who attended these meetings. The others perhaps should not have stayed away in such large numbers, but the fact of the matter is that they did. People in all walks of life are less mindful of greater privileges unexercised, e. g., the right to participate in local, state and national elections. The number present was adequate to award attorneys’ fees for the union trials; it seems strange to say — without more — that the same number could not approve fees for the federal action. It is one thixxg for a court to defer to the admitted power of the GEB to construe the Union Constitution; it is yet another to idly sanction the rewriting of that document. It is one thing for the GEB to make a basic change when peace prevails and passions are calm; it is something else when the rules are changed in the middle of a fierce contest — probably at the request of one faction. Compare Western Airlines v. Sobieski, 191 Cal.App.2d 399, 12 Cal.Rptr. 719 (1961) (elimination of cumulative voting in middle of stockholder fight held unfair). The same, incidentally, is true of the GEB’s direction to the Local to take any future votes on such attorneys’ fees by secret ballot referendum vote of the entire membership by mail. The third reason offered by the GEB in its gratuitous letter of November 15, 1961, was that “the expenditure of such funds for such purposes might well Constitute a violation of Title V of the Land-rum-Griffin Act.” This is, of course, ultimately a matter of law for a federal court. It is enough to observe in passing that this contention is without substantial merit. Finally, the GEB suggested that the Local reconsider voting payment of attorneys’ fees for the first federal suit, saying that it is “against the general policy of the Brotherhood to sanction expenditure of Local Union funds for such purposes.” This statement was not phrased as an order, but the evidence suggests that it was meant and taken that way. The power to declare this policy might be derived from sections 60(b) and 63(a) of the Union Constitution, which are admittedly quite broad. Disregard of GEB decisions can lead to dire consequences under section 71 of the Union Constitution. Although there are certainly limits to the uses to which these broad powers can be put, it can be assumed for argument that the GEB did have this power. Other provisions of the Constitution deserve examination also. The matter of Union trials is provided for in some detail in sections 259-290, pp. 112-127. At the outset of this part of the Constitution it is provided: “All charges, trials, appeals, formal hearings and disciplinary action shall be governed by provisions of Sections 259 to 290 inclusive, unless otherwise provided for in this constitution.” After union trials have been discussed in detail from start to finish, the matter of resorting to the courts is taken up in section 289, p. 126. This section provides in essence that aggrieved union members must fully exhaust their internal administrative remedies before resorting to the courts. This the plaintiffs in the first federal action had clearly done. Thus it is seen that although resort to the courts is expressly adverted to in the Constitution, the GEB explains that it is against the policy of the Brotherhood to sanction the expenditure of local union funds for such purposes. No more having been said, the basis of this policy is not clear. No reason for such policy is mentioned in sections 259-290, the only sections which are to govern such matters. Indeed, the entire thrust of those sections is directed towards fair play and union democracy. The question, however, cannot be decided within the four corners of the Union Constitution. Extraneous factors are of equal consideration. The question is thus posed: Is the policy expressed by the GEB to be allowed to stand, considering all the peculiar facts and relevant legislation in this case. In considering this question, the distinction between the propriety of that decision and its legality should not be overlooked. See Highway Truck Drivers and Helpers Local 107 v. Cohen, 182 F.Supp. 608, 618 (E.D.Pa. 1960), aff’d 284 F.2d 162 (3rd Cir.), cert, denied, 365 U.S. 833, 81 S.Ct. 747, 5 L.Ed. 2d 744. This case had its origin in an internal union dispute. Such disputes are common and should tip the scales of justice neither one way nor the other. Next came charges and trials, equally commonplace perhaps. Some of the accused were found innocent. At this point emotion doubtless overpowered reason, for the carefully considered constitutional safeguards for union trials were discarded. The accused were presumed guilty at the outset, and, with this boost, those in power achieved their will and the remainder were found guilty. Appeal was available and appeal was made. Appeal was fruitless, however; the results were affirmed. Doubtless outraged at this travesty of justice, the intransigents took their case to the federal court of this district, alleging violations of sections 102(a) (2) and (5) of the L.M.R.D.A., 29 U.S.C.A. §§ 411(a) (2) and (5). This course proved more fruitful and union trials were provided with more orderly and fair procedures. Doubtless pleased at these beneficial results, the Local adopted the recommendations of the general representative and the Trial Board and awarded these Petitioners their attorneys’ fees for their Court action. Then came the event which has caused three more lawsuits. The Respondents would not execute the checks, pleading the disapproval of a higher authority hastily summoned. First the General President (GP) and then the GEB came to the Respondents’ aid. “Policy” forbade the execution of these checks, despite the fact that the L.M.R.D.A. had been violated in the first union trials. The case in this posture appears to be one of conflicting policies. Underneath the policy choice of the GEB lie certain cold facts: capricious usage of union members’ rights, inexplicable approval of unfairness by the GEB, vindication in the courts, restitution of attorneys’ fees by the membership of a gratified local, and pronouncement on high that Union “policy” had been thwarted and that the will of the Local should be denied. These facts are erosive of the foundation of the GEB’s policy choice. They call for the consideration of other policies expressed in the L.M.R.D.A. This Act was no hasty judgment — no cursory pronouncement of “policy.” This Act was rather a product of lengthy deliberation, and it deserves commensurate consideration by this Court. It is not necessary to say that any of the specific provisions of the Act have been transgressed here for purposes of the narrow issue at hand. The ultimate question is, of course, one of “adversity;”' the immediate question is only one of the effect of the letter from the GEB. Policies lie at the heart of the latter issue.. This is not surprising, for as the Supreme Court pointed out in the Lincoln Mills case, supra 353 U.S. at 457, 77 S.Ct. at 918, 1 L.Ed.2d 972, about federal labor law: “[It] expressly furnishes some substantive law. It points out what the-parties may or may not do in certain situations. Other problems will lie-in the penumbra of express statutory-mandates. Some will lack express-statutory sanction but will be solved by looking at the policy of the legislation and fashioning a remedy that will effectuate that policy.” (Emphasis added) The present question seems to lie in the-“penumbra;” it might be affected by the purposes of the L.M.R.D.A. even if not precisely decided by the language. Viewed in this light, the case calls for & determination of the broader policies underlying those provisions. The policy choices of the GEB must be then compared with those of the Congress. It will be enough if those policies are irreconcilable. Construing of statutes has long been ■a familiar part of the judicial function. It is more prevalent in some areas of the law than in others. For example, astute courts in Confliet-of-Laws cases have long employed this procedure. See, e. g., Emery v. Burbank, 163 Mass. 326, 39 N.E. 1026, 28 L.R.A. 57 (1895) (per Holmes, J.); see generally Currie and Lieberman, Purchase Money Mortgages and State Lines: A Study in Conflict-of-Laws Methods, 1960 Duke L.J. 1; Currie, Survival of Actions: Adjudication versus Automation in the Conflict of Laws, 10 Stan.L.Rev. 205 (1958). An increasing use of the process by state courts in that context has been favorably noted by the Supreme Court, Richards v. United States, 369 U.S. 1, 12, 82 S.Ct. 585, 7 L.Ed.2d 492 (1962), and seems sanctioned in this one by the express language in Lincoln Mills. The technique is familiar. First the statute is closely examined to determine the precise policies which the legislative body meant to express. Second, the fact situation at hand is studied to see whether the forum has a legitimate interest in the application of those policies. If a state court finds that the forum state has a valid interest in the application of its law and policy, it can apply the law of the forum even though another state also might have such an interest. See, e. g., Watson v. Employers Liab. Assur. Corp., Ltd., 348 U.S. 66, 75 S.Ct. 166, 99 L.Ed. 74 (1954); Gordon v. Parker, 83 F.Supp. 40, (D.Mass.1949); Grant v. McAullife, 41 Cal.2d 859, 264 P.2d 944, 42 A.L.R.2d 1162 (1953); Emery v. Burbank, 163 Mass. 326, 39 N.E. 1026, 28 L.R.A. 57 (1895); Schmidt v. Driscoll Hotel, Inc., 249 Minn. 376, 82 N.W.2d 365 (1957); Kilberg v. Northeast Airlines, Inc., 9 N.Y.2d 34, 211 N.Y. S.2d 133, 172 N.E.2d 526 (1961); Haumschild v. Continental Casualty Co., 7 Wis.2d 130, 95 N.W.2d 814 (1959); see also cases cited in Richards v, United States, 369 U.S. 1 at fn. 26, 27, and 31, 82 S.Ct. at 592, 593, 7 L.Ed.2d 492 (1962); see generally Currie, The Constitution and the Choice of Law: Governmental Interests and the Judicial Function, 26 U. of Chic.L.Rev. 9 (1958). Federal law of course pre-empts conflicting State law. A fortiori if Federal policies are applicable, then mere Union policies must give way. The instant litigation is obviously not a Confiict-of-Laws case in the usual sense. There is. however, a possible conflict between federal and union policy. The case also involves a choice of forum, in a manner of speaking. The Respondents here have pleaded that the case is not one for the federal courts; it is urged that the matter be left to the state courts. The authorities cited are thus somewhat helpful in resolving these aspects of the case. Those decisions seem to illustrate the general type of analysis required here. Those courts examined the policy of the relevant legislation in those Conflict-of-Laws cases in somewhat the same manner that Lincoln Mills seems to have dictated for federal labor law cases. The task at hand first calls for an examination of the findings, purposes and policy expressed by the Congress in Section 2 of the Act, 29 U.S.C.A. § 401, which provides in part: "Sec. 2 (a) The Congress finds that, in the public interest, it continues to be the responsibility of the Federal Government to protect employees’ rights to organize, choose their own representatives, bargain collectively, and otherwise engage in concerted activities for their mutual aid or protection; * * * and that * * * it is essential that labor organizations, employers, and their officials adhere to the highest standards of responsibility and ethical conduct in administering the affairs of their organizations, * *. (Emphasis supplied). “(b) The Congress further finds, from recent investigations in the labor and management fields, that there have been a number of instances of breach of trust, corruption, disregard of the rights of individual employees, and other failures to observe high standards of responsibility and ethical conduct which require further and supplementary legislation that will afford necessary protection of the rights and interests of employees and the public generally as they relate to the activities of labor organizations, employers, labor relations consultants, and their officers and representatives. (Emphasis supplied). “(c) The Congress, therefore, further finds and declares that the enactment of this Act is necessary to eliminate or prevent improper practices on the part of labor organizations, employers, labor relations consultants, and their officers and representatives which distort and defeat the policies of the Labor Management Relations Act, 1947, as amended, and the Railway Labor Act, as amended, * * A more detailed discussion of the problems encountered is found in Senate Report No. 187, 86th Cong., 1st Sess. 5-7 (1959), accompanying S. 1555, the Kennedy-Ervin Bill. Concern is there expressed over union bureaucratic tendencies, antiquated procedures, abuse of power, and other difficult internal problems. Similar findings appear in House-Committee Report No. 741, accompanying H.R. 8342, the Elliott Bill, which, though not reported out of committee with a majority vote, contained the same fiduciary provision as the Landrum-Griffin Bill. Beneath the legislative history of the L.M.R.D.A. which was compiled in 1959 are the reports of the McClellan Committee, which provided the impetus-, for the L.M.R.D.A. The first report of the committee’s work in 1958 will be discussed in more detail later; it is enough; to say here that that committee was-shocked, as was the nation, at the corruption, greed, and abuse of power found in parts of the American labor movement.. The conclusions of that committee-showed an overwhelming concern for the-preservation of union democracy. See-Interim Report of the Select Committee on Improper Activities in the Labor or Management Field, S.Rep.No.1417, 85th Cong., 2d Sess. 452 (1958). The legislative history is also replete with the outrage and concern felt by those members, of the McClellan Committee after observing the tragic and tyrannical domination which had been achieved over sonjeof the union members in this country. Senator McClellan’s description of the-whole sordid mess will be reported later in the opinion; it is enough to report, here that he was sorely concerned about the conduct of those occupying positions-of trust and power in the American labor movement. There can, in short, be little-doubt that Congress meant to lay its. hands upon irregular internal affairs.. See e. g., 105 Cong.Rec. 5489 (daily ed. April 16, 1959) (remarks of Senator Ervin); 45 Va.L.Rev. 203-206 (1959) (remarks of Senator Kennedy); see generally Cox, Internal Affairs of Labor Unions Under the Labor Reform Act of 1959, 58 Mich.L.Rev. 819 (1960). There can in addition be little doubt that this case presents some irregular internal affairs. But there are express as well as implied policies. The L.M.R.D.A., inter alia, encourages and protects freedom of speech in the union hall. Section 101(a) (2). The L.M.R.D.A. encourages and protects proper safeguards for union disciplinary proceedings. Section 101(a) (5). Are the facts in this case such as to bring this letter from the GEB clearly within the scope of this Court’s concern? It is one thing for the forum to be able to apply its law from the standpoint of power. Cf. Emery v. Burbank, 163 Mass. 326, 39 N.E. 1026 (1895). It is another to definitely feel that the legislative body would wish the statute to be applied in the fact situation before the court. Cf. Bernkrant v. Fowler, 55 Cal. 2d 588, 12 Cal.Rptr. 266, 269, 360 P.2d 906, 909 (1961). The question is thus whether the above policies are of sufficient relevance to this case to override 'the policy choice of the GEB. The facts are clear. The Petitioners’ rights to freedom of speech were violated by the first union trials. The Petitioners’ rights to disciplinary proceedings with proper safeguards were violated in the first union trials. The GEB did not correct these wrongs on appeal. The Petitioners had to seek their remedy in the federal courts, incurring large expense. The Local benefited from this expense, and it voted to reimburse Petitioners for this expense. The GEB then said this reimbursement was contrary to Union policy. What will be the result if this policy pronouncement of the GEB is allowed to stand? It seems patently clear that these Petitioners — and perhaps others like them — -will be slow to assert in the future these rights conferred upon them by Congress. These are important rights with which the GEB is tampering. One writer has described them well. Cox, Law and National Labor Policy 95 (1960): “Union practices pertaining to the admission and expulsion of members are the threshold to democracy in the government of labor organizations. An employee in a bargaining unit who is unfairly excluded from the union which represents the unit or who is unjustly expelled from membership has no .opportunity to participate in fixing the terms and conditions of his employment. He is bound by the action of an organization in whose councils he has no voice. In his case it is a fraud to call collective bargaining an instrument of industrial democracy. Expulsion may be used as a method of suppressing criticism or destroying political opposition.” (Emphasis supplied.) These latter words seem prophetic indeed, for suspension was used for these exact purposes in this case. The importance of the rights involved here can be further illustrated by examining the outspoken support given these rights by some of the state courts. A number of prominent legal scholars have been saying that most of the state courts have been protecting these rights by the application of property, contract, and tort concepts to the cases which have come before them. See e. g., Chafee, The Internal Affairs of Associations not for Profit, 43 Harv.L.Rev. 993 (1930); Cox, The Role of Law in Union Democracy, 72 Harv.L.Rev. 609 (1959); Summers, Legal Limitations on Union Discipline, 64 Harv.L.Rev. 1049 (1951). Perhaps the first state court decision to fully recognize the valuable right of freedom of speech within the Union was Crossen v. Duffy, 90 Ohio App. 252, 103 N.E.2d 769 (1951). The Crossen case involved a bitter intra-union controversy, just as this one does. The only real difference in the basic facts of the two cases is that the dissidents there were attempting to unseat the national officers and here the local officers were under attack. In that case the first assault came in 1947. The attack failed and the incumbents were reelected. After the election, however, steps were taken by the national officers of the N.B.O.P. (the Potters’ Union) to deal with future attempts to unseat them. A resolution was passed at the 1947 National Convention, 103 N.E.2d at 771, which was subsequently put into the Union Constitution, after being modified “by the National Secretary without the authority of á convention of the Brotherhood, or a referendum of the members * * 103 N.E.2d at 772. That section provided as follows: “Any member of the N. B. of O. P. who is 'not a citizen of the United States or Canada shall not be eligible-to hold any national office. Any members contesting for national office shall conduct themselves in a proper manner. False accusations or misrepresentations, untruths, or use of degrading literature shall be-brought to the attention of the delegates in Convention following the National election. Any candidate convicted by a majority vote of delegates in Convention, of enumerated practices may be reprimanded, fined, suspended or expelled after due and proper hearing. If the offending member candidate is not a delegate, the Convention shall by a majority vote elect a body of five members as a special court to hear the case, with power to fine, reprimand, suspend or expelí.” At the 1949 National Convention the battle was renewed. A circular called the “Green Sheet” was drawn up to oppose the incumbent administration and espouse the candidacy of others. The pertinent portions of this handbill are as follows, 103 N.E.2d at 774: “Election N. B. O. P. Officers First Meeting in May “VOTE “We believe the present administration should be changed _because of its_ “1. Reluctance to Accept Laws and Courts of U.S.A. “2. Illegal Salary Increases. ■“3. Arbitrary Disregard of Wishes and Opinions of Locals and Members. “4. Unfair Election Tactics. ■“5. Use of Potters Herald for Personal Propaganda Agency and to Impugn Motives and Attack Members. “6. Inefficiency in Office. “7. Denial of Help to W. Va. Federation of Labor in Efforts to Increase Silicosis Benefits. “8. Duffy’s Open Shop Attitude. “RESTORE DEMOCRACY IN N. B. 0. P.” The opposition candidates were unsuccessful and were rewarded for their efforts with union trials and subsequent punishment. 103 N.E.2d at 772. The Crossen case did not involve any of the candidates; the plaintiffs were merely union members who had been charged, tried, and convicted of either publishing or circulating “improper campaign literature.” 103 N.E.2d at 775. The “improper campaign literature” was the handbill previously quoted. The only evidence presented against three of the plaintiffs at the union trials was that they had signed the “Green Sheet” and ordered distribution of it. None of these three men were present at the National Convention in 1949. 103 N.E.2d at 776. The other two plaintiffs neither signed the “Green Sheet” nor were present at the National Convention, but were convicted on testimony that both had helped to circulate the “Green Sheet” and possibly other literature as well. 103 N.E.2d at 777. The Ohio trial court held that the Union trials were void and enjoined the defendants from collecting the fines. This decision was affirmed on appeal. The Court first said, 103 N.E.2d at 777: “We do not find that any of these charges fall within the classification of libel. It seems to us rather that the charges complained of fall within the scope of free, if not fair, criticism and the free speech guaranteed by the United States Constitution and the Constitution of Ohio. * * * “In reaching our decision, we recognize that the National Brotherhood of Operative Potters is a strong union, a democratic union. Its record for successful leadership in the industrial field has been outstanding. A strong organization presupposes strong leadership. Such leadership calls forth strong adherents and often strong critics and lively contests, not to be found, because not tolerated, in a totalitarian climate. In our political democracy and in our economic achievements a measure of our strength in this country has been our ability to permit, and benefit by, criticism and the competition which nurtures that strength. (Emphasis added.) “The important and apparently original legal question squarely presented in this case is whether a rule adopted by a mutual benefit association of the character of a labor union may infringe upon and take away fundamental liberties otherwise granted by the Constitution of the United States and the Ohio Constitution. It is quite true that by joining a mutual benefit association an individual consents to be bound as a member by rules and regulations not affecting non-members. How far may a mutual benefit association go in restricting the freedom of members?” The Court there noted that the Potters Union was subject to the Ohio and United States Constitutions. The Court then adverted to some procedural defects in the Union trials and the vagueness of the previously quoted Union constitutional provision, concluding at 103 N.E. 2d at 778-779: “We are loathe to say, in view of the provisions of the Constitution of the United States and of the state of Ohio, guaranteeing free speech, that we should construe this indefinite language as intending to deprive members of the union of the right of free and fair criticism, otherwise theirs, although the 1949 Convention appears thus to have construed it and to have punished plaintiffs on that basis. Examination of the facts before us impels us to hold that a member of a mutual benefit association continues to be a citizen of the United States, and the free speech guaranteed by the United States Constitution permits him freedom in criticizing his union officials, as well as his public officials generally, subject always to the limitations imposed by the laws of slander and libel. 64 Harvard Law Review 1071. In so declaring, we recognize that it is not generally the function of courts to control the policies or the internal affairs of labor unions, but the courts may and should protect the democratic processes within unions by which union policies and their leaders are determined. Upon this point, see the illuminating article entitled ‘Legal Limitations on Union Discipline’ by Clyde W. Summers, 64 Harvard Law Review 1049, at page 1073 and also, the article by Joseph Kovner entitled ‘The Legal Protection of Civil Liberties Within Unions,’ (1948) Wisconsin Law Review, at page 18. “Particularly important seems to us the recognition that labor unions constitute a special type of mutual benefit association, standing in special relation to their members and to the state. Membership has become a frequent condition of employment, even as the right of every man to work has become increasingly recognized as one of the most valued rights of a free society. Viewing the important, role of labor unions in this era, a court may well determine in a particular case that protection of their democratic processes is essential to the maintenance of our democratic government. * * * “We hold that the action of the 1949 Convention in fining plaintiffs because of publication or distribution of the handbills constituted an infringement of the right of free speech possessed by plaintiffs, calling for exercise, under the peculiar circumstances of this case, of the equity powers of this Court to protect the plaintiffs in their property rights and in their calling.” (Emphasis supplied.) In short, unions are vastly different from other types of voluntary mutual benefit associations. Freedom of speech within the union is a valuable right which will be zealously guarded by the courts, and vague constitutional provisions engineered by those in positions of trust will not be allowed to hamper the democratic process within the union. The New York Courts have perhaps been responsible for deciding over one-half of the State decisions involving union discipline. Summers, The Law of Union Discipline: What the Courts Do in Fact, 70 Yale L.J. 175, 177 (1960). The New York case of Madden v. Atkins, 4 N.Y.2d 283, 174 N.Y.S.2d 633, 151 N.E.2d 73 (1958), involved a dispute within a local union very similar to the one in this case, and so it will not be described in detail here. In invalidating the expulsion of some of the minority members the New York Court of Appeals said, 174 N.Y.S.2d at 640, 151 N.E.2d at 78: “If there be any public policy touching the government of labor unions, and there can be no doubt that there is, it is that traditionally democratic means of improving their union may be freely availed of by members without fear of harm or penalty. And this necessarily includes the right to criticize current union leadership and, within the union, to oppose such leadership and its policies. See Polin v. Kaplan, 257 N.Y. 277, 284, 177 N.E. 833, 835, supra. The price of free expression and of political opposition within a union cannot be the risk of expulsion or other disciplinary action. In the final analysis, a labor union profits, as does any democratic body, more by pertaining free expression and free political oppostion than it may ever lose from any disunity that it may thus evidence.” The New York Court cited neither Crossen v. Duffy, supra, nor the work of Professor Summers of the Yale Law School, upon which the Ohio Court relied heavily, but did lean strongly on Polin v. Kaplan, 257 N.Y. 277, 177 N.E. 833, which is described infra at footnote 24. Another State court has since joined the ranks of the outspoken. In Mitchell v. International Ass’n of Machinists, 196 Cal.App.2d 796, 16 Cal.Rptr. 813 (1961), petition for hearing denied, No. 24913 Cal.Sup.Ct. (1962), the trial court had sustained the right of a union to expel certain members who publicly worked for and advocated “right-to-work” laws in contravention of the expressed official policy of the union. Although the members thus expelled had not lost their jobs as a result, the District Court of Appeal reversed the decision below. The Court of Appeal began by first dispelling the illusion “that unions are purely voluntary organizations like Republicans, Democrats, Elks, and church groups,” 16 Cal.Rptr. at 814, relying on the work of Professor Summers and saying, “It is this omnipotent analogy that leads the courts astray.” The court then went on to advert to the many detriments which would accrue to the expelled member, saying, “ * * * [I]t cannot be assumed that the only value in membership is job retention.” 16 Cal.Rptr. at 815. Coming to the crucial question of whether the union would be permitted, under the facts present there, to penalize a member for engaging in political activity which the union opposed, the court listed five considerations which governed the question. 16 Cal.Rptr. at 817. Speaking of the importance to the community of the individual’s untrammeled right to express himself on political questions, the court said, 16 Cal.Rptr. at 818: “* * * [F]ew subjects in the history of western civilization have drawn such a unanimity of support. In a dissenting opinion Mr. Justice Brandéis observed, ‘The right of a citizen of the United States to take part, for his own or the country’s benefit, in the making of federal laws and in the conduct of the government, necessarily includes the right to speak or write about them; * Full and free exercise of this right * * * is ordinarily also his duty; for its exercise is more important to the nation than it is to himself,' Gilbert v. State of Minnesota, 254 U.S. 325, 337-338, 41 S.Ct. 125, 129, 65 L.Ed. 287. In Sweezy v. State of New Hampshire, 354 U.S. 234, 250-251, 77 S.Ct. 1203, 1212, 1 L.Ed. 2d 1311, it was said, ‘Our form of government is built on the premise that every citizen shall have the right to engage in political expression and association. * * * History has amply proved the virtue of political activity by minority, dissident groups, who innumerable-times have been in the vanguard of democratic thought and whose-programs were ultimately accepted. * * * The absence of such voices-would be a symptom of grave illness-in our society.’ Further quotation is unnecessary. Suffice it to say that the unlimited freedom to express political views is the very heart of a democratic body, pumping the lifeblood of ideas without which our system could not survive. “ * * * [Ejxpulsion cannot serve to quiet the individual. It can only serve to intimidate those who remain.” (Emphasis added.) The Court there concluded that it was