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. e du/thir dc ir c uit_2001/212Filed September 17, 2001

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 00-3142

GEORGE A. ROSS, Appellant

v.

HOTEL EMPLOYEES AND

RESTAURANT EMPLOYEES INTERNATIONAL UNION; ROBERT BAKER, Co-Trustee; CAROL CARLSON, Co-Trustee

Appeal from the Judgment of

the United States District Court for the Western District of Pennsylvania

Civil Action No. 98-cv-01131 Magistrate Judge: Francis X. Caiazza

Argued: September 14, 2000

Before: ROTH, McKEE and RENDELL, Circuit Judge s

(Opinion filed: September 17, 2001)

THOMAS M. CASTELLO, ESQ. (Argued) Plunkett & Cooney, P.C.

3000 USX Tower

600 Grant Street Pittsburgh, PA 15219 Attorney for Appellant

RICHARD L. STOPER, Jr., ESQ. (Argued)

SUSAN L. GRAGEL, ESQ. Rotatori, Gragel & Stoper CO., L.P.A. 1040 Leader Building 526 Superior Avenue, East Cleveland, Ohio 44114 Attorneys for Appellees

OPINION OF THE COURT

McKEE, Circuit Judge.We are asked to review the district court's grant o f

summary judgment in favor of Hotel Employees and Restaurant Employees International Union ("HEREIU") , and Robert Baker and Carol Carlson; and against plainti ff George Ross. Ross sued under Title III of the Labor Management Reporting and Disclosure Act of 1959. Fo r the reasons that follow, we will affirm.

I. Factual and Procedural Background1

George Ross is a member of Local 57, a subordinate labor organization of HEREIU. Before January 6, 1998, Ros s had

been an elected non-salaried member of the Executiv e Board of that Local as well as an appointed full ti me salaried employee holding the title of business age nt.2

On September 5, 1995, the United States entered int o a Consent Decree with HEREIU. The Consent Decree appointed a federal monitor "for the remedial objec tive of relieving HEREIU and Local 57 from the direct or in direct influence of any organized crime group or the threa t of such an influence." App. At 104. Sometime during th e summer of 1997, the United States Department of Jus tice began investigating organized crime's relationship with

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1. The procedural history of this appeal is rather unique as the district court entered summary judgment after declaring a mi strial.

2. At all times relevant to the issues before us, R oss held an appointed

office.

2

Local 57. Thereafter, the federal monitor brought c harges of corruption involving several officers of Local 57 i ncluding Louis Sanfilippo, President; Nancy Davis, Secretary Treasurer; Vince Fera, Recording Secretary; and Lou is Masco, a union member.

At the same time this investigation was proceeding, a power struggle erupted between Local 57's "power ba se" and three of the other officers of the Local: Ross, Nassan and Brown.3 Ross and Brown were then business agent s of Local 57, and Nassan was a general organizer. Accor ding to Ross, the power struggle progressed to the point th at the Local's Executive Secretary, Nancy Davis,4 asked t he International to assume control of Local 57 by esta blishing a trusteeship.

In November of 1997, the federal monitor also reque stedthat a trusteeship be established based on the char ges

brought against the officers of Local 57. Eventuall y, Robert Baker was appointed as the first of two Trustees wh o assumed control of Local 57.5 On the same day he wa s appointed, Baker fired Nassan, Ross and Brown; and Sanfilippo resigned. However, Nassan, Ross and Brow n were rehired within 24 hours of their firing after complaining to the monitor.

An election for officers of Local 57 was scheduled for March 1998, but the Trustees canceled the election, and suspended the Local's constitution and by-laws. In April of 1998, Ross, Nassan and Brown filed the first of two lawsuits challenging HEREIU's right to impose a trusteeship. They named HEREIU and the two Trustees as defendants (the "Trusteeship case"). The plaintiffs asserted that, "[g]iven the resignation of Sanfilippo and th e failure of HEREIU or the Trustees to suspend Nancy Ross, it is clear

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3. Inasmuch as we are reviewing a grant of summary judgment against Ross, we must assume that the allegations of his am ended complaint are true, and draw all inferences which reasonably aris e from those assertions in his favor as the nonmoving party. Woe ssner v. Air Liquide Inc., 242 F.3d 469, 471 (3d Cir. 2001).

4. Nancy Davis is also referred to as Nancy Ross in the record, as she is George Ross' former wife.

5. Carol Carlson was appointed as co-trustee about four weeks later.

3

that the continuation of the Trusteeship is imprope r and therefore must be dissolved." Ross' Complaint atP 2 6 (No. 98-629). The plaintiffs sought declaratory and equi table relief under Title III of the Labor Management Repo rting and Disclosure Act of 1959 (the "LMRDA") which gove rns the creation and maintenance of trusteeships by lab or organizations. See 73 Stat. 519 SS 301-01 (1959), 2 9 U.S.C. SS 461-66 (1998 & Supp. 2000) The prayer for relief included a request that the court dissolve the Trus teeship, reinstate the constitution and by-laws of Local 57, and order immediate elections. The plaintiffs also move d for a TRO to enjoin the Trustees from running Local 57's operations. That motion was denied. At the end of A pril, Nassan and Brown withdrew from the lawsuit, leaving Ross as the only plaintiff.6

During the summer of 1998, the Trustees decided to hold new elections and terminate the Trusteeship. They a lso issued new election guidelines under which Ross bec ameineligible to run for office because his union dues were

delinquent. Ross argues that these guidelines were specifically intended to remove him as an eligible candidate.7 In addition to the new election guidelines, the Tru stees also "proposed a new Constitution which terminated Georg e Ross' position as full time salaried business agent ." Ross' Amended Complaint at P 38 (No. 98-629).

In July of 1998, Ross filed a second lawsuit agains t the same defendants in state court (the "election case" ). Ross sought a declaration that he was an eligible candid ate for the upcoming election, and an injunction to prevent the election from proceeding until his eligibility coul d be

determined. That suit was removed to federal court on motion of the defendants, and the district court th ereafter refused to enjoin the election. Ross was not permit ted to

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6. Ross argues that Nassan "cut a deal" with HEREIU and the Trustees to dissolve the Trusteeship, and hold elections in exchange for Nassan withdrawing from the lawsuit and his support of Ros s.

7. In support of this argument, he points out that he had been elected to the Executive Board of Local 57 on three prior o ccasions even though his dues were then delinquent. Inasmuch as we are r eviewing a grant of summary judgment, we must accept this argument as t rue.

4

run for office because of the aforementioned eligib ility restrictions. On the day of the election, Ross, Nas san and Brown received letters terminating their employment as business agents. As a result of the election, Nassa n was elected president and principle officer. After the swearing in of the new officers of the union, the Trusteeship w as dissolved. Ross was not re-appointed as a business agent by the newly elected officers.

In December of 1998, the defendants filed a motion for summary judgment in the Trusteeship case. They argu ed that Ross' claim for equitable relief had been rend ered moot by the election of new officers and the resulting d issolution of the Trusteeship. Ross answered arguing that the crux of the Trusteeship case was that the Trusteeship had b een imposed in bad faith to remove political opposition . He insisted that all actions carried out pursuant to t he Trusteeship were void. In February of 1999, Ross fi led an amended complaint in the Trusteeship case alleging continuing harm and asking the district court to:

Void the following actions taken in conjunct ion with that Trusteeship:i. The suspension of the Local By-Laws and

Constitution;

ii. The firing of the Plaintiff, George Ro ss on January 6, 1998;

iii. The imposition of the new eligibility requirements to run for elected office inten ded to exclude George Ross as a candidate for the J uly, 1998 elections;

iv. The firing of George Ross on August 10, 1998.

Ross' Amended Complaint, P 9 (No. 98-629). He also requested temporary reinstatement, scheduling of ne w elections, monetary damages, counsel fees, and cost s.

The district court consolidated Ross' two lawsuits and the matter was scheduled for trial. Essentially, Ross c ontended that he was harmed in two respects as a result of t he improper continuation of the Trusteeship. He allege d that he had suffered damages as a result of being declar ed

5

ineligible to run for office in the August 1998 ele ctions. He also alleged damages as a result of the termination of his appointed position as a business agent. Prior to tr ial, the defendants filed a motion in limine seeking to excl ude evidence or argument regarding Ross' purportedly im proper exclusion from the August election. The court denie d that motion but did enter an order precluding Ross from "seek[ing] any relief which would effect a change i n the union election." Ross v. Hotel Employees and Restau rant Employees Int'l Union, No. 98-1131, slip. op. at 9 (W.D. Pa. Oct. 4, 1999).

After both sides rested in the ensuing trial, the j ury reported that it was deadlocked and the court decla red a mistrial. However, before the scheduled retrial was to begin, the defendants moved for summary judgment on all of Ross' claims. The defendants argued that Ross was precluded from asserting an individual claim for mo netary damages under Title III of the LMRDA. Ross opposed the motion by relying solely on the law of the case doc trine. He contended that the court had already implicitly dec ided that an individual could sue for damages under Titl e III because the court sent the damage suit to the jury in the

first trial.

The district court rejected Ross' law of the case a rgumentstating: "the issue of whether Title III supports R oss's

individual requests for relief has not yet been adj udicated by the Court." Ross v. Hotel Employees and Restaura nt Employees Int'l Union, No. 98-1131 slip. op. at 12 (W.D. Pa. Jan. 12, 2000). The court noted that Ross had not a sserted a timeliness challenge, and concluded that it had b road

discretion to entertain the defendants' motion for summary judgment even though the issues had been submitted to a jury. Id. at 6 (citing In re Sch. Asbestos Litig., 977 F.2d 764, 794 (3d Cir. 1992)). The court ultimately held that interests of judicial economy counseled in favor of adjudicat ing the summary judgment motion and granted summary judgment in favor of the defendants and against Ros s.

In doing so, the court relied on the text and legis lative history of the LMRDA as well as relevant precedent from other circuit courts of appeals. The court held tha t Ross'

claims were all individual in nature and that Title III of the

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LMRDA does not allow plaintiffs to seek individual relief. Id. at 12-13, 16-17. Rather, the district court conclud ed that Title III was intended to protect local unions, not their

individual members. Id. at 14. The court relied in large part upon Gesink v. Grand Lodge, International Ass'n of Machinists and Aerospace Workers, 831 F.2d 214 (10t h Cir. 1987), in stating:

the purposes listed in Title III as justifyi ng the creation of a trusteeship have nothing to do with pro tecting union members' or employees' individual righ ts; rather, they seek to protect locals from `corruption ' or `financial malpractice' of their agents and to ensure that such agents comply with their obligatio ns and `otherwise carry [ ] out the legitimate obje cts of ' the

union.

Ross, slip. op. at 12. The court concluded that Ros s' claim was not appropriately brought under Title III becau se each form of requested relief was intended to compensate him,

not his Local.

Plaintiff 's requests for lost wages, medica l insurance coverage, and other `out of pocket costs' as sociated with his termination as business agent, as w ell as his request for reinstatement, are asserted on h is own behalf and for his own benefit, not for that of Local 57.

Id. at 16-17. The district court did acknowledge th at Ross sought other equitable relief including a declarati on that the Trusteeship was improperly imposed in bad faith andthe voiding of certain of the Trustee's actions. Id . at 17 n.3.8

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8. The district court also discussed Ross' repeated attempts to invalidate the August 1998 election despite its previous rulin g that Ross was barred from seeking to effect a change in the elect ion. The district court reaffirmed its previous ruling that it lacked juris diction to entertain

this part of Ross' claim. Ross v. Hotel Employees and Re staurant Employees Int'l Union, No. 98-1131 slip. op. at 7-8 (W.D. Pa. Jan. 12, 2000). The

court reasoned that Title IV of the LMRDA vests the Secretary of Labor with exclusive jurisdiction over an individual unio n member's postelection suits regardless of when members first see k relief regarding elections. See id. at 8-10 (citing Local No. 82, Fu rniture & Piano Moving, Furniture Store Drivers, Helpers, Warehousemen & Pa ckers v. Crowley, 467 U.S. 526, 541, 544 (1984)). Post-election relie f to invalidate

elections or seek new elections must first be pursued with th e Secretary of Labor. Id. at 11 n. 2. Therefore, Ross "[was] barred from pursuing claims requiring an invalidation of the August 1998 electi on." Id. at 10-11.

7

However, inasmuch as that relief was ancillary to R oss' primary attempt to redress his individual injuries, Ross' entire case was dismissed. This appeal followed. 9

II. Jurisdiction and Standard of Review

The district court had jurisdiction pursuant toS 30 4 of the LMRDA. 73 Stat. 519 S 304, 29 U.S.C. S 464. We have jurisdiction from the district court's final order granting summary judgment under 28 U.S.C. S 1291. We exercis e plenary review. Resolution Trust Corp. v. Fidelity and Deposit Co. of Maryland, 205 F.3d 615, 626 (3d Cir. 2000).

III. Discussion

Ross' appeal presents two questions for resolution. First, we must determine if Ross has waived the arguments he makes now because he did not raise those arguments in opposition to the defendants' summary judgment moti on in

the district court. If we address the merits of his claim we must decide the very important question of whether Title III

of the LMRDA affords Ross a cause of action under t he

circumstances of this case.

A. Waiver

As noted above, Ross' opposition to the defendants' motion for summary judgment in the district court w as limited to his contention that the law of the case precludedsummary judgment because the merits of his claim ha d

been submitted to a jury. The district court disagr eed with his position, and that ruling has not been appealed . On appeal, for the first time, he argues the merits of the

defendants' claim that Title III of the LMRDA does not provide a cause of action for individual relief.

Generally, "absent compelling circumstances an appe llate

court will not consider issues that are raised for the first time on appeal." Patterson v. Cuyler, 729 F.2d 925, 929 (3d

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9. Ross does not now challenge the district court's denial of his

assertion that the law of the case precluded entry of summary judgment, or the

district court's refusal to overturn the union's el ection.

8

Cir. 1984), overruled on other grounds recognized i n Carter v. Rafferty, 826 F.2d 1299 (3d Cir. 1987) (citing S ingleton v. Wulff, 428 U.S. 106, 120-21 (1976)). In Patterson, we explained:

This prudential policy seeks to insure that litigants have every opportunity to present their evid ence in the forum designed to resolve factual disputes. By requiring parties to present all their legal issues to the district court as well, we preserve the hier archical nature of the federal courts and encourage u ltimate settlement before appeal. It also prevents s urprise on appeal and gives the appellate court the ben efit of the legal analysis of the trial court. It is how ever not a jurisdictional bar, and the statement of pol icy permits exceptions in appropriate cases.

Id. (citations omitted).

The case at bar has important implications for the field of labor law, and raises a question of first impres sion in this circuit. Moreover, the procedural posture also raises procedural questions that we have not previously addressed. As noted above, the summary judgment mot ion was made after a jury deadlocked and a mistrial was declared. However, because of that unique procedura l posture, the defendants can hardly claim at this la te date that Ross' assertion of a private cause of action u nder Title III is a surprise, or that Ross' position prejudice s them. They have obviously assumed that he had a private c ause of action under Title III throughout the course of this litigation including trial. Although Ross failed to respond to the merits of defendants' arguments in the summaryjudgment motion, the district court was afforded th e rare

advantage of a fully developed record in analyzing the issues raised by the motion for summary judgment. Inasmuch as the defendants are not unfairly prejudi ced by the lateness of Ross' arguments, and given the impo rtance of the issues raised by this grant of summary judgm ent, we think it appropriate to resolve this appeal on the merits, and not upon the procedural grounds that the defend ants argue in the alternative.

Moreover, the district court did not err in conside ring a motion for summary judgment after a mistrial. If th ere are

9

no issues of material fact and a party is entitled to judgment as a matter of law, judgment may be awarde d at any time, even after trial, under Rule 56 or under Rule 50. There was no reason to require the court to go thro ugh the procedural calisthenics of a second trial merely be cause the motion for judgment was brought after the mistrial. Accordingly, we will consider the merits of the arg uments

before us.

B. Title III of the LMRDA

This dispute arises in the context of a trusteeship that was imposed pursuant to Title III of the LMRDA. 10 The

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10. Title III of the LMRDA provides in relevant par t:

S 302 Purposes for which a trusteeship may be esta blished

Trusteeships shall be established and administered by a labor organization over a subordinate body only in accord ance with the constitution and bylaws of the organization which h as assumed trusteeship over the subordinate body and for the p urpose of correcting corruption or financial malpractice, assuring the p erformance of collective bargaining agreements or other duties of bargaining representative, restoring democratic procedures, or otherwise carrying out the legitimate objects of such labor organizati on.

S 303 Unlawful acts relating to labor organization under trusteeship

(a) During any period when a subordinate body of a labor organization is in trusteeship, it shall be unlawful (1) to coun t the vote of delegates from such body in any convention or election of off icers of the labor organization unless the delegates have been chosen by secret ballot in an election in which all the members in good standi ng of such subordinate body were eligible to participate . . .* * *

S 304 Enforcement

(a) Upon the written complaint of any member or sub ordinate body of a labor organization alleging that such organizatio n has violated the provisions of this title (except section 301) the S ecretary shall investigate the complaint and if the Secretary finds probable c ause to believe that

such violation has occurred and has not been remedi ed he shall, without disclosing the identity of the complainant, bring a civil action in any

10

LMRDA defines a trusteeship as "any receivership . . . or other method of supervision or control whereby a la bor organization suspends the autonomy otherwise availa ble to a subordinate body under its constitution or bylaws ." 73 Stat. 519 S 3(h), 29 U.S.C. S 402(h). Title III lim its the establishment of trusteeships as follows:

`Trusteeships shall be established and admin istered . . . for the purpose of [1] correcting corr uption or financial malpractice, [2] assuring the perf ormance of collective bargaining agreements or other du ties of a bargaining representative, [3] restoring dem ocratic procedures, [4] or otherwise carrying out th e legitimate objects of such labor organization.

73 Stat. 519 S 302, 29 U.S.C. S 462. Specifying pro per purposes protects the local union organization and its membership as a whole from the misuse of the truste eship

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district court of the United States having jurisdic tion of the labor organization for such relief (including injunctions ) as may be appropriate. Any member or subordinate body of a la bor organization affected by any violation of this title (except sec tion 301) may bring a civil action in any district court of the United St ates having jurisdiction of the labor organization for such relief (includin g injunctions) as may

be appropriate.

* * *

(c) In any proceeding pursuant to this section a tr usteeship established by a labor organization in conformity with the proc edural requirements of its constitution and bylaws and authorized or ra tified after a fair hearing . . . shall be presumed valid for a period of eighteen months from the date of its establishment and shall not be subj ect to attack duringsuch period except upon clear and convincing proof that the trusteeship

was not established or maintained in good faith for a purpose allowable under section 302. After the expiration of eighteen months the trusteeship shall be presumed invalid in any such p roceeding and its

discontinuance shall be decreed unless the labor or ganization shall show by clear and convincing proof that the continuation of the trusteeship is necessary for a purpose allowable under section 302 . In the latter event the court may dismiss the complaint or retain juris diction of the cause on such conditions and for such period as it deems appropriate.

73 Stat. 519 SS 301, 302, 303, 304, 29 U.S.C.SS 461 , 462, 463, 464.

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power. Title III provides that a trusteeship is"pre sumed valid for a period of eighteen months . . . and sha ll not be subject to attack during such period except upon cl ear and convincing proof that the trusteeship was not estab lished or maintained in good faith for a purpose allowable under section 302." 73 Stat. 519 S 304(c), 29 U.S.C. S 46 4(c). The provision also states: "[a]ny member or subordinate body of a labor organization affected by a violation of thi s title may bring a civil action in any district court . . . fo r such relief (including injunctions) as may be appropriate." 73 Stat. 519 S 304(a), 29 U.S.C. S 464(a). It is this provision that provides the proverbial "rub" here, as we must dete rmine if the individual relief that Ross is seeking is "appr opriate"

under Title III.11

Our inquiry is therefore circumscribed by our interpretation of this statute.

In any case turning on statutory interpretat ion, our goal is to ascertain the intent of Congress. To accomplish this goal, we begin by looking at the statute's language. If the language is plain , we need look no further. If the statutory language i s ambiguous or unclear, we may look behind the language to the legislative history for guidance.

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11. At oral argument, and vaguely in his brief, Ros s argued that we

should read the enforcement section of Title III in light of S 401 which

is

the introduction section of the LMRDA and discusses the purposes and policy of the LMRDA. S 401(b) discusses protecting the rights of employees and the public in general:

The Congress further finds, from recent inve stigations in the labor and management fields, that there have been a number of instances of breach of trust, corruption, disregard of the rights of

individualemployees, and other failures to observe hig h standards of

responsibility and ethical conduct which req uire further and supplementary legislation that will afford n ecessary protection of

the rights and interests of employees and the pu blic generally as they relate to the activities of labor organizati ons, employers, labor relations consultants, and their officers an d representatives.

73 Stat. 519 S 2(b), 29 U.S.C. S 401(b). Ross conte nds that this section's use of the word "employees" indicates that protecti ng employees of the union was the underlying purpose of the LMRDA. For reasons we discuss below, we disagree.

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Collinsgru v. Palmyra Bd. of Educ., 161 F.3d 225, 2 33 (3d Cir. 1998). The intricate legislative history of th e LMRDA has caused the Supreme Court to note that:

Archibald Cox, who actively participated in shaping much of the LMRDA, has remarked:

`The legislation contains more than its shar e of problems for judicial interpretation because much of

the bill was written on the floor of the Sen ate or House of Representatives and because many se ctions contain calculated ambiguities or political compromises essential to secure a majority. Consequently, in resolving them the courts w ould be well advised to seek out the underlying rati onale without placing great emphasis upon close

construction of the words.'

Wirtz, 389 U.S. at 468 n.6 (citing Cox, Internal Af fairs of Labor Unions Under the Labor Reform Act of 1959, 58 Mich. L. Rev. 819, 852 (1960)). Thus the practice o f interpreting ambiguous statutory language in light of its legislative history is of particular value in the c ontext of the LMRDA. Although we do not consider the word "appropriate" an ambiguous term in and of itself, t o the extent that the text of the LMRDA does not adequate ly define the term in context, and thereby definitivel y establish what remedies are "appropriate" under Tit le III, we are compelled to consult the statute's legislati ve history. See West Virginia Univ. Hospital, Inc. v. Casey, 49 9 U.S. 83, 98 (1991) (it is appropriate to resort to legislati ve history to determine the meaning of ambiguous legislation). Th e legislative history of Title III confirms our analy sis.

C. The Legislative History of Title III

In 1957, the Select Committee on Improper Activitie s inthe Labor Management Field of the United States Sen ate,

more commonly known as the "McClellan Committee," began investigating and gathering findings on the i nternal affairs of labor unions. Note, Landrum-Griffin and the Trusteeship Imbroglio, 71 Yale L.J. 1460, 1473 (196 2) (hereinafter "Note, Trusteeship Imbroglio"). The Mc Clellan Committee's findings "exposed the details of the sa d state of

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democracy in large sections of the labor movement a nd provided numerous examples of the abuses of the trusteeship power." Sheet Metal Workers' Int'l Ass' n v. Lynn, 488 U.S. 347, 357 n. 8 (1998) (quoting Note, Trusteeship Imbroglio at 1473).

The Labor-Management Reporting and Disclosur e Act of 1959 was the product of congressional con cern with widespread abuses of power by union leadersh ip. The relevant provisions of the Act had a history tracing

back more than two decades in the evolution of the statutes relating to labor unions. Tensions between

union leaders and the rank-and-file members and allegations of union wrongdoing led to exten ded congressional inquiry. As originally introdu ced, the legislation focused on disclosure requiremen ts and the regulation of union trusteeships and electio ns. However, various amendments were adopted, al l aimed at enlarged protection for members of unions paralleling certain rights guaranteed by the Federal Constitution; not surprisingly, these amendm ents-- ultimately enacted as Title I of the Act, 29 U.S.C.

SS 411-415--were introduced under the title of "Bill of Rights of Members of Labor Organizations." T he amendments placed emphasis on the rights of union members to freedom of expression without fea r of sanctions by the union, which in many instan ces could mean loss of union membership and in turn lo ss of livelihood. Such protection was necessary to further the Act's primary objective of ensuring that unions would be democratically governed and respons ive to the will of their memberships.

Id. at 352 (citing 105 Cong. Rec. 6471-6472, 6476, 15530 (1959)).

Title III of the LMRDA, the trusteeship title, firs t emerged as Title II12 of the Kennedy-Ives Bill passed by th e Senate in

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12. A review of the Senate Report no. 187, April 14 , 1959 [To accompany S. 1555] in the Section-By-Section Analysis reveals that Title I wasoriginally the reporting provision and Title II was the trusteeship

provision. U.S. Code Cong. & Admin. News at 2352 - 2362. Later, Title I became the Bill of Rights provision, Title II bec ame the reporting provision and Title III became the trusteeship prov ision. 73 Stat. 519 S1 et seq., 29 U.S.C. S 401 et seq.

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June of 1958. Lynn, 488 U.S. at 357 n.8. It appeare d again in January of 1959 in the Kennedy-Ervin Bill. Id.; Note, Trusteeship Imbroglio at 1475. The Kennedy-Ervin Bi ll focused on disclosure and reporting requirements, trusteeships and elections. U.S. Code Cong. & Admin . News at 2318-72; Lynn, 488 U.S. at 352. The accompanying Committee Report to the Kennedy-Ervin Bill reflects the overarching concern of guaranteeing internal union democracy while minimizing governmental interferenc e with the internal affairs of unions. See, e.g., 1959 U.S .C.C.A.N. at 2322-23; Jerry E. Linde, Title III of the Labor or Management Relations and Disclosure Act: For Greate r Judicial Protection of Union Democracy and Local Au tomony, 9 J. Corp. L. 271, 276-80 (1984); Marcia Greenblatt , Union Officials and the Labor Bill of Rights, 57 Fordham L. Rev. 601, 601-02 (1989). This report acknowledged that trusteeships had been effective in the past "to ins ure order within [labor] organizations." U.S. Code Cong. & Ad min. News at 2333. However, it also acknowledged the McC lellan Committee's findings regarding the misuse of the trusteeship authority. The Committee Report noted:

in some instances trusteeships have been use d as a means of consolidating the power of corrupt union officers, plundering and dissipating the res ources of local unions, and preventing the growth of c ompeting political elements within the organization.

Lynn, 488 U.S. at 357 n. 8 (quoting 1959 U.S.C.C.A. N. at 2333). The Committee Report also explained why then

current law was ineffective:

A trusteeship will ordinarily be set aside u nless the local is given a fair hearing including noti ce of the charges and an opportunity to defend. But if the forms of fair procedure are observed there appears to be little the courts can do and there are very few cas es staying or upsetting trusteeships upon substantive g rounds. Men have frequently been subjected to fines as large as $1,000 for bringing suit against a union; ot hers have been expelled from the membership.

The Committee on Labor and Public Welfare th erefore

concurs in the select committee's recommenda tion that15

there should be a `limitation on the right o f internationals to place local unions in trus teeship.'

U.S. Code Cong. & Admin. News at 2333.

The Kennedy-Ervin Bill underwent seven months of rewriting and debate involving several amendments. Note, Trusteeship Imbroglio, at 1475. A major alteration was the addition of a "Bill of Rights of Members of Labor Organizations." Id. The Bill of Rights"was adopted as an amendment on the Senate floor by `legislators[who] feared that the [original] bill did not go far enough beca use it did not provide general protection to union members who spoke out against union leadership.' " Lynn, 488 U.S. at 352 (quoting Steelworkers v. Sadlowski, 457 U.S. 102 (1 982)). Those legislators believed this Bill of Rights was needed to further protect the rank-and-file members and reinf orce the other provisions of the LMRDA, including the truste eship provision.

In these debates, Senator McClellan stated:

I do not believe that racketeering, corrupti on, abuse of power and other improper practices on the pa rt of some labor organizations can be, or will eve r be, prevented until and unless the Congress of t he United States has the wisdom and the courage to ena ct laws prescribing minimum standards of democratic process and conduct for the administration of intern al union affairs. I mean by that, . . . that the Cong ress should prescribe and define by law what the rights of union members are, place in them by democratic pro cess the power to secure those rights and protect the m in their efforts to do so from reprisals of any kind from their would-be exploiters, manipulators, and bosse s. Without such protection, other provisions of law may be of little benefit and meaningless. Without such protec tion in the exercise of his legitimate rights the re cords of our committee's investigations show over and ove r again

that a rank-and-file member dare not risk an y opposition to a corrupt or autocratic leader ship. If he does so, he may be beaten, his family threat ened, his property destroyed or damaged, and he may be forced out of his job--all of these can happen and have happened.

16Having these things in mind, . . . I introdu ced S. 1137

to provide a bill of rights for working peop le--for union

members.

105 Cong. Rec. 6471-72 (emphasis added).

The Bill of Rights was therefore "[d]esigned to gua rantee every member equal voting rights, rights of free sp eech and assembly, and a right to sue." Lynn, 488 U.S. at 35 2 (quoting Steelworkers v. Sadlowski, 457 U.S. 102 (1 982)).

Between January and September of 1959, when the LMRDA was finally enacted, most of the debate conce rned the new additions and amendments, "while the truste eship title glided quietly through the labyrinthine proce ss from bill to bill with little change and less discussion ." See Lynn, 488 U.S. at 357 n.8 (quoting Note, Trusteeship Imbr oglio at 1475). Neither the discussions on the House nor Sen ate floors focused on the relationship between Title I and Title III. Id. Senator Dodd, however, did propose an amen dment to Title III which sparked some debate. Specificall y, Dodd wanted the trusteeship provisions to go even furthe r in order to prevent the manipulation of the trusteeshi p power and the resulting harm that had been so well docume nted by the McClellan Committee. Note, Trusteeship Imbro glio at 1475-76. Dodd's amendment created a presumption tha t trusteeships in place longer than thirty days were invalid unless the international union, at a hearing before the Secretary of Labor, could present clear and convinc ing proof of a proper purpose. Id. Senator Dodd explain ed the rationale for his proposed amendment as follows:

The [Kennedy-Ervin] bill now provides a proc edure under which an individual union member may a ppeal. The point is that the full burden of proof i s placed upon such union member, who thus would have to fight the international or the national unio n; and in that fight the limited, sparse, or -- most o ften-- nonexistent power of the individual union me mber would be pitted against the tremendous prest ige and power of the national or the international u nion. . . .

the philosophy behind my amendment is an old Anglo- American philosophy . . . that the burden of proof for so serious a matter as destroying a local un ion, or local

17

union autonomy -- and that is what a trustee ship usually does -- should rest upon the nationa l union seeking to impose the trusteeship.105 Cong. Rec. at 6675.

Dodd then focused on the importance of protecting t he local membership given organized crime's entangleme nt

with certain elements of the labor movement as unea rthed during the congressional inquiry. He explained:

In the past, as we know from the revelations of the McClellan committee, and as we know from lit igation, the imposition of trusteeships was one of th e greatest abuses of the Teamsters Union. My recollecti on is that more than 120 trusteeships were imposed by t hat union some of them for more than 20 years. T hink of it. For more than 20 years, the local member s, the wage earners, were without any say at all wi th respect

to their local unions.

* * *

All I seek by the amendment is to give the m embers of a local union an opportunity to say to someo ne, a judge, or other competent authority, `This t rusteeship should not be imposed on us.'

Id. (emphasis added).

Senator Ervin opposed Dodd's amendment. Ervin argue d "the bill as now drawn furnishes adequate protectio n for the rank and file of members of unions which are pl aced in trusteeship."13 Id. at 6677. Additionally, Senator Morse argued:

[W]e should look at the trustee section of t he bill as it comes to us in the light of the other sectio ns of the bill, and note what the committee has done by way of

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13. Part of Ervin's discussion specifically explain ed that the bill "takes care of the main reason why trusteeships are someti mes arbitrarily imposed, namely, to enable international officers t o control the selection of delegates to international conventions. The bill contains a specific provision to the effect that the local union in tru steeship may be represented at an international convention only by delegates elected by

a secret ballot of the members of the local." 105 C ong. Rec. 6677.

18

setting up democratic procedures to protect the rank and file of the local unions. As we provide democratic guarantees in the bill, I believe we should keep at a minimum any interference with the operation of theinternal affairs of the union.

Lynn, 488 U.S. at 357 n. 8 (quoting 105 Cong. Rec. 6678). Dodd's amendment was subsequently rejected.

When the Kennedy-Ervin Bill went to the House, the enforcement section of the trusteeship title was ch anged.14 The Kennedy-Ervin Bill did not grant individual uni on members standing to bring suit in federal court. Th e Committee Report accompanying the bill explained th at

"section 206 makes clear that Federal suits under T itle II are possible only upon suit initiated by the Secret ary of Labor." U.S. Code Cong. & Admin. News 1959, p. 2363 . The enforcement section which Congress passed, and whic h is still in force, allows the local union itself or an individual union member to bring suit in federal court. See 7 3 Stat. 519 S, 29 U.S.C. S 464.

The legislative history is silent on the issue of w hether a union member, as an appointed officer, may seek ind ividual damages. However, Congressman Ludwig Teller offered supplementary views regarding the reasoning behind the amendment of the enforcement section. Teller explai ned that Congress wanted to facilitate individual claim s without any involvement by the Secretary. U.S. Code Cong. & Admin. News 1959, p. 2500. This allowed Congress to curtail the inordinate power of the Secretary while saving taxpayer dollars and eliminating any requirement th at a union member first obtain governmental permission t o sue.15

Id.

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14. The enforcement provision currently in force is S 304 of the LMRDA,

29 U.S.C. S 464.

15. Congressman Teller stated:

HR 8342 is a substantial improvement over S. 1555 (the Kennedy- Ervin bill), the Senate-passed labor managem ent reform bill which

our committee used as a basis for its delibe rations.. . . Reducing the excessive powers of the Secretary of Lab or, as we did in our committee bill H.R. 8342, is in line with ou r traditions which

favor

19

This expansive discussion of legislative history do es not conclusively establish what type of relief is "appr opriate" for an individual union member who is also an appointed official. However, it places that inquiry into its proper context and guides our interpretation of the releva nt statutory language. In interpreting Title III in th e context ofthe discussions in Congress and the findings of the

McClellan Committee, we conclude that the amendment authorizing individual law suits was intended to un derscore the concerns surrounding trusteeships under Title I II. By allowing individual members to bring suit rather th an the Secretary, Congress intended more avenues for enfor cement of the trusteeship provision, not more types of rel ief.

Nothing in the legislative history of Title III sug gests that Congress contemplated an individual bringing suit f or compensatory damages arising from the loss of an appointed union position under that title. The stat utory scheme of the LMRDA strongly suggests that the indi vidual rights that Ross seeks to vindicate must be redress ed under Title I. As noted above, that provision was initial ly referred to as the "workers' bill of rights" when it was int roduced. Title III, which came first, was meant to protect t he subordinate labor organization, and Title I was subsequently added specifically to address the righ ts of individual union members. Accordingly, we conclude from the legislative history that the relief that Ross s eeks is not "appropriate" under Title III. An examination of th e relevant

cases confirms this conclusion.

D. Applicable Case Law

We have not previously interpreted S 304, the enforcement provision of Title III. However, Finneg an v. Leu, 456 U.S. 431 (1982), and its progeny guide our anal ysis. In

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the diffusion of power, will save the taxpay er many millions of dollars annually without impairing the basic objectives of the proposed law, and will permit individuals to prosecute their own cases in the courts without having to obtain permission of a Government agent or official to do so.

U.S. Code Cong. & Admin. News 1959, p. 2500.

20

Finnegan, Leu defeated Brown in an election for pre sident

of Local 20 of the International Brotherhood of the Teamsters. Id. at 433. Brown had been openly suppor ted by a group of the local's business agents including Fi nnegan. Id. After Leu assumed office, he discharged all of the business agents who had supported Brown pursuant to a provision in the local's bylaws that purported to g ive the president the "authority to appoint, . . and discha rge the Union's business agents." Id. at 433. The business agents then sued in district court contending that their

termination violated Title I of the LMRDA.16 Id.The Court began its analysis by reviewing the legis lative

history of the LMRDA, and concluding that "the Act' s primary objective [was] ensuring that unions would be democratically governed and responsive to the will of their memberships." Id. The Court noted that"[i]t is read ily apparent from the legislative history of Title I, t hat it was

rank-and-file union members--not union officers or employees, as such--whom Congress sought to protect ." Id. at 437. The plaintiffs were members of the union wi th protected speech rights, as well as salaried employ ees of the union. Accordingly, the Court had to determine whether the rights afforded plaintiffs as members of the un ion "immunized [them] from discharge at the pleasure of the president from their positions as appointed union employees." Id.

The Court concluded that the plaintiffs' Title I ri ghts had not been violated because plaintiffs had not been p recluded from exercising any of those rights, and the LMRDA did not protect appointed officers who "backed the wrong ho rse."

This was true even if it meant that those officers were "forced to `choose between their rights of free exp ression . . . and their jobs.' " Id. (citations omitted). T he Court explained its rejection of plaintiffs' Title I clai m as follows:

For whatever limits Title I places on a unio n's authority to utilize dismissal from union office as `p art of a

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16. The suit was filed under LMRDA SS 101(a) (1) an d (2) which "guarantee equal voting rights, and rights of speec h and assembly, to `[e]very member of a labor organization.' " Id. at 436 (quoting 29 U.S.C. S 411 (1998)).

21

purposeful and deliberate attempt . . . to s uppress dissent within the union,' (citations omitte d), it does

not restrict the freedom of an elected union leader to choose a staff whose views are compatible wi th his own. Indeed, neither the language nor legisl ative history of the Act suggest that it was inten ded to address the issue of union patronage. To the contrary, the Act's overriding objective was to ensure that unions would be democratically governed, and respon sive to the will of the union membership as expresse d in open, periodic elections.

Id. at 441.

Here, Ross also held the "dual status" of union mem berand appointed union officer. Defendants argue that because

Ross was employed during the entire time the truste eship was in place, Finnegan precludes him from asserting a claim "arising from the decision of the newly elect ed officers of Local 57 not to retain him as a business agent a fter the trusteeship ended." Defendants' Br. at 9. Defendant s are correct that the newly elected officers of Local 57 were free "to choose a staff whose views are compatible with [their] own." Finnegan, 456 U.S. at 441.

However, the analysis does not end there because, u nlike in Finnegan, we are here concerned with a trusteesh ip that was created pursuant to Title III. Ross argues he i s entitled to compensation because the continuation of the Trusteeship was in bad faith and for the purpose of removing him as political opposition within Local 5 7 in violation of S 304 of Title III.17 The Supreme Cou rt

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17. There is some confusion about Ross' position re garding whether the Trusteeship was appropriately created and/or mainta ined. Defendants quote Ross as having conceded that the Trusteeship" was appropriate and was imposed for a proper purpose." See Defenda nts' Br. at 2. However, we do not interpret Ross' testimony as a c oncession. Rather, he was asked if he was aware of the serious charges fa cing the officers of the union and whether such serious charges justify establishing a Trusteeship. He responded, "[w]ell, according to th e International, that's the way they feel. But, I think we should have been spoke [sic] to first.

. . . I do believe that is a valid reason for an In ternational to come in

and take over." App. at 250. Ross did not necessarily c oncede, however, that

22

addressed a similar argument in the context of a trusteeship in Sheet Metal Workers' International A ss'n v. Lynn, 488 U.S. 347 (1989).

There, the trustee who had been appointed to run th e local asked Lynn, who was an elected business representative of Local 75, to support a proposed d ues increase. However, rather than support the increase , Lynn insisted that expenditures be reduced and he organi zed the opposition to the proposal to raise union dues. Id. at 349- 50. Five days after the proposal was defeated, the trustee informed Lynn that he was being removed from his el ected position of business agent. Id. at 350. Lynn exhaus ted his administrative remedies within the union, and then filed suit under Title I alleging that his removal consti tuted illegal retaliation in violation of the statutory r ight of free speech set forth in S 101(a)(2) of the LMRDA. 73 St at. 519 S 101(a)(2), 29 U.S.C. S 411(a)(2).The Court began its analysis by noting similarities

between Lynn's plight, and the plight of the plaint iffs in Finnegan. The Court recalled that the Title I right s of the plaintiffs in Finnegan had been chilled"albeit indi rectly, because [they] had been forced to choose between th eir rights and their jobs." Id., at 354. Nevertheless, the Finnegan plaintiffs had not recovered because the c hoice that they were left with did not violate the purpos e of the

LMRDA.

Whether such interference with Title I right s gives rise to a cause of action under S 102 must be jud ged by reference to the LMRDA's basic objective: "t o ensure that unions [are] democratically governed, a nd responsive to the will of the union membersh ip as expressed in open, periodic elections." In F innegan, this goal was furthered when the newly elected un ion president discharged the appointed staff of the ousted

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the actual motivation for taking over was the justi fication asserted by

the International. Moreover, even if he may have conced ed the Trusteeship was established for a legitimate purpose, he clearl y insists that it was maintained for an improper purpose, and that he has a cause of action

under Title III as a result.

23

incumbent. Indeed, the basis for the Finnega n holding was the recognition that the newly elected p resident's victory might be rendered meaningless if a d isloyal staff were able to thwart the implementation of hi s programs. While such patronage-related disch arges had some chilling effect on the free speech rights of the business agents, we found this concern outwe ighed by

the need to vindicate the democratic choice made by

the union electorate.

488 U.S. at 354-5 (citations omitted). However, the Court stressed that Lynn's situation was quite different for he was removed from an elected position, and his removal t hereby had a direct impact on the democratic governance of the

union itself.

The consequences of the removal of an electe d official are much different. To begin with, when an e lected official like Lynn is removed from his post, the union members are denied the representative of the ir choice. Indeed, Lynn's removal deprived the membersh ip of his leadership, knowledge, and advice at a criti cal time forthe Local. His removal, therefore, hardly wa s an

integral part of ensuring a union administra tion's responsiveness to the mandate of the union e lection.

Furthermore, the potential chilling effect on Title I free speech rights is more pronounced when e lected officials are discharged. Not only is the fi red official likely to be chilled in the exercise of his own free speech rights, but so are the members who vo ted for him. Seeing Lynn removed from his post just five days after he led the fight to defeat yet another dues increase proposal, other members of the Loca l may well have concluded that one challenged the union 's hierarchy, if at all, at one's peril. This i s precisely what Congress sought to prevent when it passed th e LMRDA. "It recognized that democracy would b e assured only if union members are free to di scuss union policies and criticize the leadership without fear of reprisal."

Id. at 355. Accordingly, the Court held that Lynn's allegation of retaliatory removal stated a cause of action

under Title I of the LMRDA.

24

Ross was appointed and his complaint alleges only a violation of Title III.18 The Court in Lynn was qui te explicit in tying Lynn's cause of action to Title I. The Cou rt emphasized the importance of Title I as follows:

we find nothing in the language of the LMRDA or its legislative history to suggest that Congress intended Title I rights to fall by the wayside whenev er a trusteeship is imposed. Had Congress contemp lated such a result, we would expect to find some discussion of it in the text of the LMRDA or its legisl ative history. Given Congress' silence on this point, a tru stee's authority under Title III ordinarily should be construed in a manner consistent with the protections provided in

Title I.

Id. at 356-57.

Title I was enacted to protect rank-and-file member s of the union and to insure union democracy by protecti ng the independence of elected union officials even though the free speech rights of the union's membership are implica ted. This is true whether or not a trusteeship is involv ed. Ross tries to avail himself of the holding in Lynn by a rguing that his removal has an impact on the democratic governa nce of the Local.19 He seems to be arguing that Title III was the___________________________________________________ ______________

18. Ross' brief states:

As a result of the improper use of a trustee ship, Ross suffered

direct or proximate damages. But for the imposition of the trusteeship, Ross still would be employed. Since the trus teeship was intended

for an improper purpose and maintained in bad fa ith, the Defendants violated the LMRDA. Ross, as a member of Loc al 57, was "affected" by the violation of the LMRDA. The damages r equested were "appropriate" to make him whole.

Ross' Brief at 23 (emphasis added).

19. Ross' brief states:

The actions of the International Union will have also a chilling

affect

on all members of Local 57. If the Internati onal Union succeeds in destroying Ross and leaving him with no reco urse, then other members will refrain from opposing the Inter national Union. On the other hand, if the International Union is re quired to defend Ross' action and to compensate him for its misuse of the trusteeship,

then

25

mechanism by which his free speech rights (i.e., Ti tle I) were violated. However, the rights that may have be en chilled are nevertheless Title I rights, not Title III rights. Therefore, the holding in Lynn does not further his position. "The potential chilling effect on Title I free spee ch rights is more pronounced when elected officials are discharg ed. Not only is the fired official likely to be chilled in the exercise of his own free speech rights, but so are the members who voted for him." Id. at 355. We are not persuaded by Ross' attempts to secure compensation for a claimed viola tion of Title I under Title III. His position is, in fact, in substantial tension with Finnegan. After all, in Finnegan, the Court allowed an appointed officer to be removed even tho ugh doing so required employees to chose between free s peech and continued employment. The Court reasoned that c hoice was necessarily concomitant to allowing elected off icials to implement the programs and leadership that a majori ty of the union membership had voted for. Although there was no issue of a trusteeship in Finnegan, it is very d ifficult to square that analysis with Ross' assertion that he h as a cause of action because of the Trusteeship here.

As the Supreme Court found in the Title I setting,nothing in the legislative history of Title III est ablishes that

Congress intended to protect appointed officers lik e Ross under the circumstances here. Ross' reliance upon T itle III may well be an attempt to circumvent the holding in Finnegan. But for the existence of the Trusteeship and the fact that Ross brought this suit under Title III, F innegan would be more precisely on point. Ross' claim that he was victimized by an appointed Trustee rather than an e lected officer does not alter the fact that the rights he seeks to vindicate are Title I rights, not Title III rights. Accordingly, we believe our analysis here must still be guided b y Finnegan, and that is confirmed by our reading of G esink v.

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the International Union will think twice bef ore using a trusteeship

as a means to harm one of its members. In th is respect, Ross'

actions benefit all members and inure to the benefit of the `subordinate body of a labor organization' i n addition to himself.

Ross' brief at 23 (emphasis added).

26

Grand Lodge, International Ass'n of Machinists and Aerospace Workers, 831 F.2d 214, 216 (10th Cir. 198 7).

In Gesink, the International appointed a trustee wh o subsequently filed charges against Gesink, a busine ss representative for the local. Id. at 215. Gesink wa s thereafter removed from his office by the president of the International, and he was barred from holding any o ffice for five years. Id. Gesink sued for damages under Title I and Title III. His claim for damages under Title III wa s based upon his assertion that he was entitled to relief f or deprivation of his salary and other emoluments of h is office during the Grand Lodge supervision of the District Lodge. He argued that the supervision violated Title III o f the

LMRDA. Id. at 216. The Court dismissed his Title II I claim stating:

In light of the legislative history of Title III of the LMRDA and the Supreme Court's ruling in Finn egan , this Court finds that there is no cause of a ction for individual damages under SS 462 and 464. Any right of action pursuant to those sections belongs to the subordinate union, while a union member may sue to enforce the act's provisions, such suits sho uld be

limited to relief on behalf of the union. As the Supreme Court concluded in the Title I context, this Court concludes that nothing in the legislative hi story of Title III indicates an intent to protect the posit ions of union officers and employees.Id., at 216. Similarly, in Pope v. Office and Profe ssional

Employees International Union, the court stated:"Ti tle III of the LMRDA is designed to protect a subordinate unio n as a whole, whereas Title I . . . is designed to prote ct the individual rights of the members of a union." 74 F. 3d 1492, 1504, (6th Cir. 1996).

The district court here found that Ross is not seek ing compensatory damages and reinstatement in order to protect the local union and its membership from the actions of the Trustee. Rather, the court concluded that Ross sought relief to redress personal losses purpo rtedly inflicted upon him by the Trustee. Ross v. Hotel Em ployees and Restaurant Employees Int'l Union, No. 98-1131, slip.

27

op. at 16-17 (W.D. Pa. Oct. 4, 1999). His efforts t o now argue that his relief will benefit the union by vin dicating its members' free speech rights is little more than a b elated attempt to import considerations that govern Title I relief into a suit brought only under Title III.

Despite the holding in Finnegan, Lynn , and Gesink, Ross urges that we be guided by Higgins v. Harden, 644 F .2d 1348 (9th Cir. 1981). There, the International Asso ciation of Machinists ("IAM") appointed Simpson and Harden to exercise control over a local for which Higgins was an organizer. Thereafter, Harden attempted to remove H iggins from his position as organizer by claiming that Hig gins had been unproductive. Higgins responded by suing under SS 101-611 of the LMRDA, 29 U.S.C. SS 401-531. He a lleged that the IAM had imposed an unlawful trusteeship in the form of Simpson and Harden, that those trustees wer e without authority to terminate him, and that his termination had actually been in retaliation for hi s political support of the directing business representative of the local who had apparently fallen into disfavor with the International, and been "forced out" by Harden. Id.

The district court held that the International had, in fact, established a trusteeship. That trusteeship was dec lared invalid because the International had not complied with IAM's own constitution and bylaws. Accordingly, the court held that Harden did not have the authority to remo ve Higgins, and Higgins was awarded back-pay and attor ney's fees. Id. The court of appeals affirmed that part o f the district court's opinion. However, the court of app eals merely assumed that the requested individual relief was "appropriate" under Title III.We decline to embrace Higgins for several reasons.

Although the court there assumed that an individual right of action exists, under Title III, it did not direc tly address the issue. See Gesink, 831 F.2d at 216 (finding tha t the Higgins court "apparently assumes there is an indiv idual right of action . . . but . . . does not discuss th e issue"). It never analyzed the legislative history that Finnega n and Lynn instruct is so important to a proper inquiry. Moreover, Higgins was decided before Finnegan and Lynn, and t he Higgins court therefore did not have the benefit of the

28

Supreme Court's discussion of the LMRDA contained i n those later cases.

Ross also urges reliance on McDonald v. Oliver , 52 5 F.2d 1217 (5th Cir. 1976). In McDonald, new elections we re held after a trusteeship was established, but the Intern ational

invalidated the election results and refused to ins tall the new officers. Id. at 1222-23. The newly elected off icers brought suit under Titles I and III seeking to end the trusteeship; and win installation as officers, and back-pay. Id. The Secretary also brought an action under Titl es III and IV based on a finding by a Labor Department off icial that the continuation of the trusteeship and the fa ilure to recognize the election violated Titles III and IV o f the

LMRDA. Id. at 1224. The district court declared tha t the election was valid, ordered the immediate installat ion of the officers, and awarded back pay. Id. at 1225. The Co urt of Appeals affirmed, reasoning that:

[a]lthough the primary purpose of an individ ual's lawsuit is obviously to vindicate his own ri ghts or facilitate his own candidacy, there can be l ittle doubt

that he renders a substantial service to the union as

an institution and to his members individual ly in protecting local democratic processes throug h Titles I and III. The successful litigant dispels the "chill" cast upon the rights of others.

Id. at 1227. The court also concluded that Title II I should be "construed in light of the varius other provisio ns of the LMRDA." Id. at 1229. The court recognized that the primary purpose of the LMRDA is "not only to stop and preve nt outrageous conduct by thugs and gangsters but also to stop lesser forms of objectionable conduct by those in positions of trust and to protect democratic proces ses within union organizations." Id. The court conclude d by finding that the international union was thwarting union democracy in violation to the LMRDA.Although McDonald suggests that a successful suit u nder

Title III confers benefits on the entire union memb ership, the holding does not advance Ross' argument as much as he would like because McDonald was also decided bef ore Finnegan and Lynn. Moreover, McDonald was elected a nd

29

Ross was appointed. The decisions in Finnegan and Lynn readily establish the importance of that distinctio n and undermine McDonald as support for Ross' action unde r Title III.

Similarly, we find that Ross' reliance upon Pruitt v. United Brotherhood of Carpenters and Joiners of America, 6 59 F. Supp. 1511 (N.D. Ga. 1987), vacated on other gr'ds, 893 F.2d 1216 (11th Cir. 1990), is misplaced because Pr uitt too is distinguishable from the instant case. There, th e court was not asked to find a private cause of action for damages under S304 of Title III. Rather, Pruitt sued under both Title I and Title III alleging that an appointed trustee had prevented him from assuming an elected position in retaliation for the exercise of free speech. Id. a t 1514. The court discussed the statutory presumption of validi ty that attaches to trusteeships under S 304 of Title III i n inquiring into whether the trusteeship in question had been i mposed for a proper purpose. Id. at 1517, 1520. The issue addressed by the court was whether the "plaintiff ' s Title III

claims fail as a matter of law under the clear and convincing evidence standard [of S304]." Id. at 151 9. The court merely ruled that "a triable issue may exist as to whether the trusteeship was maintained to block pla intiff from assuming his elected position" Id. at 1520. Mo re importantly, Pruitt, unlike Ross, stated a Title I claim based upon his assertion that the trusteeship had preclud ed him from assuming an elected position. Id. at 1522.

Finally, Ross relies upon the decision of the Court of Appeals for the Sixth Circuit in Pope v. Office and Professional Employees International Union, 74 F.3d 1492 (6th Cir. 1996). Pope was an appointed business representative of Local 268 of the Office and Profe ssional Employees International Union (OPEIU). Soon after h is appointment, he alleged wrongdoing and mismanagemen t on the part of officers of Local 268. Id. at 1496. Support for Pope's outspoken criticism of the Local's leadershi p soon flourished, and he became a candidate for president of the Local despite opposition of the OPEIU, and local bo ard. Id. at 1497. After one very chaotic meeting of the Loca l, the OPEIU granted the local board's request, and impose d a trusteeship to control Local 268 pending a hearing to30

determine its propriety. Id. at 1498. Thereafter, t he union held a hearing and determined that the trusteeship was appropriate despite Pope's protestations to the con trary. Shortly thereafter, Pope was fired, and his union membership was withdrawn without notice or opportun ity to be heard. Id. at 1499. Pope was therefore inelig ible to run for president of the Local. Elections were held , a new slate of officers was elected, and the trusteeship was thereafter terminated. Id. at 1500. However, before the trusteeship was terminated, Pope sued in district c ourt.

Pope argued that the trusteeship violated Title III of the LMRDA, and that denying him eligibility to run for union office violated Title I of the LMRDA. Id. He sought monetary, declaratory and injunctive relief. However, after t he elections took place the declaratory and injunctive claims were dismissed as moot. Id. The suit proceeded to t rial, and the jury awarded Pope compensatory and punitive dam ages against the OPEIU. Id.

OPEIU appealed claiming that the LMRDA is designed to protect rank and file union members and not officer s and employees and that Pope therefore lacked standing a s an appointed employee. Id. at 1501. In resolving those issues, the Court reconciled the jury's verdict with the ho ldings in Finnegan, Lynn, and Gesink. The court also reconcil ed the jury's verdict with the holding in Cehaich v. Inter national, UAW, 710 F.2d 234 (6th Cir. 1983), a case involving similar facts decided subsequent to Finnegan. Cehaich and P ope had both been appointed employees of local unions, but

Cehaich's "status as a member of the union did not change after he was terminated from his appointed position . He was not fined, suspended, expelled or disciplined." Pope, 74

F.3d at 1502. The court reasoned as follows:

In Finnegan, the appointed officials of an o usted board were not protected by the LMRDA because unio n members elected a new board. In Lynn, the el ected officials were protected because they had be en elected by the union members. The purpose of ensurin g democracy is furthered by allowing Pope a ca use of action under the LMRDA. Pope was appointed a business representative by an elected local executive

board. That board was not ousted as in Finne gan .

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Moreover, unlike Cehaich, Pope was expelled fromunion membership immediately after his termi nation

from his position as business representative . Thus, Pope's case is clearly distinguishable from Cehaich. Pope is entitled to protection under the LMR DA because he was disciplined in a manner which affected his right to fully enjoy the rights and priv ileges of union membership.

Id. at 1503.

However, most significantly for our purposes, the c ourt held that Pope's suit was not moot merely because t he trusteeship had since been terminated. The court re ached that result by reading Title I and Title III togeth er and concluding that "[t]he question of the propriety of the trusteeship is not moot because it has direct beari ng on whether Pope's Title I rights were violated." Id. T he violation of Title III supported Pope's claim for damages bec ause "[his was] an action at law to recover damages for the suppression of Title I rights as a result of the im position of a trusteeship." Id. at 1505.

However, Ross is not alleging a violation of Title I. He was not expelled from membership, and he was reinstated to his appointed position within 24 hours of being removed from it.20 In reviewing the grant of summary judgment fo r the defendants here, we must assume that they denied Ro ss' eligibility to run for election solely to keep him from running in the election. Although a union member's right to seek elective office is protected under Title I, Id . at 1503; Gesink, 831 F. 2d at 217, Ross seeks relief solely under S 304 of Title III. Based on the text and legislati ve history of Title III and the Supreme Court's decisions in Finn egan and Lynn, we hold that Title III does not allow a priva te cause of action for individual damages flowing from the termination of an appointed employee. Relief underS 304

___________________________________________________ ______________

20. We do not suggest that a union member must be s tripped of his/her union membership to state a cause of action under T itle I or that prompt reappointment will always insulate a defendant from claims of retaliation. However, we do note that Ross does not argue that his termination as an appointed officer was a scheme to suppress his freedom of speech and assembly as a union member un der Title I.

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must be sought on behalf of the local union organiz ation and the entire membership must reap the benefits.

Accordingly, we conclude that the district court pr operly determined that there was no genuine issue of mater ial factand that, on the record before it, Ross' Title III claim failed

as a matter of law. The relief Ross seeks is simply not "appropriate" within the meaning of Title III.

IV. Conclusion

For the reasons set forth herein, we conclude that the district court did not err in granting summary judg ment to

the defendants under Title III of the LMRDA and tha t order

will be affirmed.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

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