supplemented the charges against Local officers, and the court can only assume that IBPAT would have presented evidence on all the charges at its August 16 hearing. Had the Local's officers attended the hearing and been faced with defending against charges of which they were unaware, the fair hearing requirement would not have been met. But here, the officers, aware of the hearing, simply refused to attend or request a postponement. Nor did they ask, at the first opportunity, for a greater specification of charges. Cf. Luggage Workers, supra, at 508 (suggesting that a challenge to sufficiency of charges must be promptly made); I.B.E.W. v. Eli, supra, at 509 (same). The court believes that the Local officers decided not to attend because, they believed, attendance would have acknowledged the legitimacy of IBPAT's prior course of conduct. But we conclude that the Local's officers, under the circumstances, acted "at their peril" (see Luggage Workers, supra, at 508) in not attending or challenging the hearing and waived a possible objection to the sufficiency of the hearing.
6. Having decided that we will treat the procedural requirements of 29 U.S.C. § 464(c) and the IBPAT constitution as having been met, we will proceed to consider whether the trusteeship was imposed and continued for permissible reasons. In our consideration, we are bound to presume the trusteeship valid, except upon clear and convincing evidence of bad faith and improper purpose. Luggage Workers at 504-05; 29 U.S.C. § 464(c).
The plaintiffs urge that the court not consider any evidence of reasons for imposing the trusteeship that IBPAT uncovered after July 18, when the trusteeship was originally imposed. They cite case law which does indeed stand for the unimpeachable proposition that inquiry must be restricted to the evidence available at the time the trusteeship was imposed. See, e.g., United Mine Workers v. United Mine Workers, 154 U.S. App. D.C. 322, 475 F.2d 906, 913 (D.C. Cir. 1973). The court concludes that, as of July 18, IBPAT had evidence sufficient for the establishment of a temporary (30 day) trusteeship. Both 29 U.S.C. § 462 and the IBPAT constitution permit a trusteeship in order to carry out the "legitimate objects" of a labor organization, in addition to the other enumerated purposes. We believe that the prevention of a possible disaffiliation, where there were concerns about possible problems within the Local, represents a legitimate object of the International Brotherhood. (See also Conclusion of Law 4, supra.) IBPAT was clearly faced with an emergency: if it had not imposed a trusteeship when it did, it would have lost any ability to influence the future course of the Local and protect its membership. This emergency justified the temporary trusteeship.
With regard to the continuation of the trusteeship, the court will consider all evidence that IBPAT had up until August 16.
7. Although IBPAT officials were fairly forthright in admitting that the trusteeship was initially imposed in response to the calling of the disaffiliation election, they did not concede that it was continued to prevent disaffiliation. And this court would not allow a continuing trusteeship imposed to prevent disaffiliation. There are no cases stating that disaffiliation, in and of itself, justifies a trusteeship.
In National Association of Letter Carriers, supra, a trusteeship was permitted because the local was seeking to violate a collective bargaining agreement's no-strike clause. As an alternate basis for trusteeship, the court recognized the right of an international to "protect itself" as a legitimate objective under § 462, and held that a trusteeship could be imposed to prevent a Local from joining forces with a rival union while still remaining affiliated with its international. The decision is predicated on a clause of the international constitution prohibiting an affiliate from acting to destroy the international or encourage a rival, and on the fact that the local was not merely acting to end its affiliation but was reaffiliating while still retaining its original affiliation and, presumably, the benefits therefrom. The case, therefore, does not indicate that a threatened disaffiliation, without more, would justify trusteeship. Nor does Local 1302 v. Carpenters, 477 F.2d 612 (2d Cir. 1973). In that case, the court approved a trusteeship designed to prevent disaffiliation, but the court's holding was actually premised on the fact that disaffiliation would threaten the stability of ongoing negotiations being performed by the international, which for some years had been the bargaining representative for a group of locals.
Other cases more clearly state that union self-preservation (by preventing disaffiliation), standing alone, does not justify trusteeship. See United Mine Workers v. United Mine Workers, supra; Benda v. Grand Lodge, 584 F.2d 308 (9th Cir. 1978). This court agrees that a superordinate union may not impose a trusteeship solely to prevent a disaffected local from severing its connection. Members of the local ought to have the unfettered right of non-association.
However, a proposed disaffiliation will not prevent a trusteeship otherwise justified.
8. A second possible purpose for the trusteeship is, in the language of the statute, the "assuring of . . . duties of a bargaining representative." The defendants urged that the disaffiliation threatened the bargaining process in upcoming contract negotiations. The court does not believe that the evidence bears this out.
Samuel Kelly testified that, prior to calling the election, he spoke with all the employers having contracts with the Local and was assured that all employers would recognize and bargain with an unaffiliated Local.
The defendants are quite correct about the need for industrial stability and the desirability of labor-management relations undisrupted by doubts as to who-represents-whom. But, it seems to this court, any confusion that arose in the minds of employers only arose because IBPAT stepped in and imposed a trusteeship, not before this occurrence. IBPAT may not rely on its own action, which clouded a clear situation, to justify a continuing trusteeship. Accordingly, we reject the validity of this purported purpose.
9. The defendants next urge that "financial malpractice" justified the continuation of the trusteeship. The alleged malpractice is the failure of the Local to remain current on its per capita assessments and to allow a debt to the International Brotherhood in excess of $27,000 to accumulate. Although the fact of debt is undisputed, the court is hesitant to characterize the Local's conduct as amounting to malpractice. It seems more appropriate to characterize the Local's decision to pay its attorney's fees prior to paying its per capita assessments as a "business judgment," based on a perception of the relative priorities of the debts.
However, the Local's conduct in this regard clearly violated the IBPAT constitution. (See Defendants' Exhibit 2, sections 137 and 139, requiring that per capita assessments be forwarded to IBPAT prior to the payment of other expenditures.) Since the Local was obligated to follow the International constitution in this and other matters, its business decision may properly be characterized as malpractice. But the court does not believe that delinquency in the forwarding of dues to a superordinate labor organization is the type of corruption or financial malpractice with which the Labor-Management Reporting and Disclosure Act is particularly concerned. The Act seems designed to protect union members from more abusive practices or schemes of their locals, not to aid internationals in debt collection.
It would seem that a less drastic step than a trusteeship might have sufficed to correct this situation. And in any event, IBPAT's past forbearance in dealing with the Local's back debts makes its timing here suspect and would render a trusteeship imposed solely to correct the back debt problem not entitled to judicial enforcement. Cf. R.W.S.D.U. v. National Union of Hospital & Health Care Employees, 577 F. Supp. 29 (S.D. N.Y. 1983).
10. The remainder of the facts cited by the defendants as justifying the decision to continue the trusteeship relate to the alleged undemocratic practices of the Local. Some of the constitutional infractions brought forward are relatively minor and merely technical: the failure to swear in officers on some occasions, and the 14-day (instead of 15-day) notice of an officer election.
A far more serious infraction was the action of the Executive Board in spending funds of the Local without the prior approval of the general membership. This practice was in violation of the IBPAT constitution, section 143, which provides, in pertinent part:
No monies shall be paid out of the funds of a local union without the vote of the members, except monies owed to the General Office pursuant to the General Constitution and fixed local union expenses previously approved by the membership.
The evidence discloses that with regard to the Local's ever accumulating attorney's fees, monies were spent before the Local's members had a chance to vote on the expense.
The plaintiffs have sought to minimize the significance of this pattern of action. First, they state, the practice was one the current Executive Board (and more particularly, the current Business Representative, Samuel Kelly) learned from its (his) predecessor. Mr. Kelly testified that the Business Representative he replaced, Maynard Sullivan, also spent Local funds in this manner. Since Mr. Sullivan had in some way assisted the appointed trustee during the Local's first period of trusteeship, Mr. Kelly apparently believed that this practice was acceptable to IBPAT. But we believe that the Local's Executive Board is chargeable with a familiarity with the IBPAT constitution and should not be able to justify a present error by demonstrating past errors.
The plaintiffs further argue that the membership had an opportunity to ratify the decisions of the Executive Board at general membership meetings, and that no objection to the manner in which funds had been expended was ever voiced at meetings. But the opportunity to ratify is not the same as the right to a prior vote. In the former circumstance, the membership is presented with a fait accompli. The decision has already been made, and it cannot be unmade. There would seem to be a natural tendency to defer to the Executive Board, a tendency not necessarily present in a prior-vote situation.
Finally, the plaintiffs seek to characterize the attorney's fees expenses as emergency expenses which could not wait for a vote of the membership.
We do not believe that attorney's fees can be so characterized, particularly where the record discloses that the Local had a long-term, ongoing relationship with its attorneys. Moreover, the Executive Board was not powerless to call special meetings to vote on upcoming issues possibly warranting the utilization of counsel.
This court believes the failure of the Executive Board to follow section 143 seriously compromised the constitutionally guaranteed democratic right of the Local's members to determine the Local's direction. Although less intrusive measures on IBPAT's part might have sufficed to rectify the Executive Board's practice, it is not the court's function to reach that question. The defendants have advanced a permissible purpose for the trusteeship, and the trusteeship is certainly a legitimate means for achieving the restoration of democratic processes.
11. Additionally, the trusteeship was legitimately imposed, not to prevent a disaffiliation, but to assure that any disaffiliation decision be made with sufficient democratic safeguards.
Michael Monroe stated that he did not believe the members of Local 1983 were adequately educated on the consequences of disaffiliation, and that he would not permit a disaffiliation election until the members' education was more complete. While we do not believe IBPAT can forestall an election indefinitely, we do believe that a new election should await the dissemination of more information, and we believe that the information available as of July 20, when the first election was held, was certainly inadequate.
There is not a plethora of case law on the question of "how much" democracy is required in a disaffiliation election. The National Labor Relations Board and the courts have apparently opted for a flexible, case by case, method and have eschewed rigid requirements. See NLRB v. Commercial Letter, Inc., 496 F.2d 35, 42 (8th Cir. 1974). One recent case has spoken of the need to ensure that, "as a threshold matter, the decision reflected the wishes of the union's members. . . . The election procedures must not be so 'lax' or 'substantially irregular ' as to 'negate the validity of the election. '" Financial Institution Employees v. NLRB, 738 F.2d 1483, 1487 (9th Cir. 1984). Importantly, we think, the above case only speaks of threshold requirements, such as, for example, a secret ballot and proper notice, and does not indicate that additional inquiry is foreclosed. In some cases, more than mere procedural regularity may be required.
For example, in NLRB v. Bear Archery, 587 F.2d 812 (6th Cir. 1977), the court stated that an affiliation election process, to be adequate, must provide members with an adequate opportunity for reflection and for the presentation of opposing viewpoints. We find that both of these elements were lacking here, and that in this case they should be present before a disaffiliation election is held. The continuation of the trusteeship will assure their presence.
It is clear that the disaffiliation election was rather hastily called, and that, because no effort was made to notify IBPAT, the members were not fully informed of all the consequences of an independent status. In some situations, this might not be problematic, as, for example, where the membership is sophisticated, educated or actively involved in union affairs. This does not appear to be the case here. Some of the witnesses who testified appeared to be genuinely confused about the meaning of disaffiliation. And the court doubts that even those shop stewards who testified for the plaintiffs could adequately advise members of their units about all the possible negative ramifications of disaffiliation: for example, the bar against reaffiliation for some period of time; the complications of possible management non-recognition of the unaffiliated Local and whether the New Jersey Public Employment Relations Commission, if faced with this problem, would order management to bargain.
Moreover, whether IBPAT was as unhelpful to the Local as the latter's officers claimed is something the members should have received a second opinion on.
Disaffiliation is a rather extraordinary step for a union to take. It is not a step an international has a right to prevent, but it is a step that an international has an obligation to see is not lightly taken, or taken based on insufficient information. Here, we believe, IBPAT acted in the interest of the Local's members in continuing the trusteeship, in order that the members have an adequate opportunity to reflect and consider opposing views.
In sum, then, the court concludes that the continuation of the trusteeship is valid in that it serves to restore democratic processes, both on the question of Local expenditures and on the question of disaffiliation.
12. Finally, the court must briefly address the contention of the plaintiffs that the defendants' reasons for imposing and continuing the trusteeship, even if valid, are merely pretextual; that is, that the true reason for the trusteeship is to actually prevent disaffiliation (an invalid purpose), and that the other reasons advanced at trial were after-the-fact rationalizations. The plaintiffs urge that the court adopt, by analogy, the burdens of proof applicable in mixed-motive discharge cases under the National Labor Relations Act.
In NLRB v. Transportation Management Corp., 462 U.S. 393, 103 S. Ct. 2469, 76 L. Ed. 2d 667 (1983), the Supreme Court gave its approval to the shifting burdens imposed by the National Labor Relations Board in its Wright Line decision, 251 N.L.R.B. 1083 (1980) (which itself relied on a Supreme Court First Amendment case, Mount Healthy City Board of Education v. Doyle, 429 U.S. 274, 50 L. Ed. 2d 471, 97 S. Ct. 568 (1977)). In mixed-motive discharge cases, the rule is as follows:
The General Counsel [of the NLRB] . . . has the burden of proving that the employee's conduct protected by § 7 [of the NLRA] was a substantial or motivating factor in the discharge. Even if this [is] the case, and the employer fail[s] to rebut it, the employer [can] avoid being held in violation of §§ 8(a)(1) and 8(a)(3) by proving by a preponderance of the evidence that the discharge rested on the employee's unprotected conduct as well and that the employee would have lost his job in any event.
Slip. op. at 7. If applied to this case, and if it were proved that one of the reasons for the trusteeship was to prevent disaffiliation, then the above allocation would require IBPAT to prove that the trusteeship would have occurred even absent that reason, based on the valid reasons outlined above.
The cases on the imposition of trusteeships do not suggest that superordinate labor organizations are to be subjected to such a burden. Rather, it appears enough for such organizations to come forward with one proper purpose for establishing the trusteeship. See National Association of Letter Carriers, supra, at 923; International Brotherhood v. Eli, supra, at 506. Moreover, the presumption of validity provided in 29 U.S.C. § 464, seems to suggest that the burden is on the plaintiffs to show bad faith.
We believe that because trusteeships (unlike discharges) are for the protection of a local's membership, one valid purpose ought to suffice, even if some other purposes are dubious. This is not a situation where, after analysis, there do not appear to be any valid purposes. The court has carefully scrutinized the record and has rejected some of the purposes advanced by defendants. But others are valid and show no bad faith. In any event, the court is not convinced that one purpose of the trusteeship was to prevent disaffiliation. Rather, we believe that IBPAT was interested in regulating and safeguarding a disaffiliation election. Therefore, we do not view this as a mixed-motive case at all.
Accordingly, for the reasons advanced above, we will enforce the trusteeship and grant an injunction to aid defendants in carrying out the trusteeship. We will deny the plaintiffs' prayer for an injunction and for Mr. Kelly's back pay.
The foregoing constitutes the court's findings of fact and conclusions of law pursuant to Rule 52(a).