                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-16-2004

Morris v. Hoffa
Precedential or Non-Precedential: Precedential

Docket No. 02-1401




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"Morris v. Hoffa" (2004). 2004 Decisions. Paper 889.
http://digitalcommons.law.villanova.edu/thirdcircuit_2004/889


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                         PRECEDENTIAL

    UNITED STATES COURT OF                           JEAN MORRIS, PERSONAL
           APPEALS                                      REPRESENTATIVE
     FOR THE THIRD CIRCUIT                              OF THE ESTATE OF
                                                    JOHN MORRIS, DECEASED;2
                                                      KENNETH J. WOODRING;
                                                 ELMORE MACK; HAROLD FISCHER
          Nos: 02-1401/2214
                                                                             v.

                                                    JAMES P. HOFFA, GENERAL
    JEAN MORRIS, PERSONAL                                    PRESIDENT,
       REPRESENTATIVE                                (individually and in his official
       OF THE ESTATE OF                                        capacity);
   JOHN MORRIS, DECEASED;1                       INTERNATIONAL BROTHERHOOD
     KENNETH J. WOODRING;                                  OF TEAMSTERS
ELMORE MACK; HAROLD FISCHER
                                                     James P. Hoffa and International
                    v.                                 Brotherhood of Teamsters,

   JAMES P. HOFFA, GENERAL                                                        Appellants
  PRESIDENT, (individually and his                               No. 02-2214
        official capacity);
INTERNATIONAL BROTHERHOOD
        OF TEAMSTERS                             On Appeal for the United States District
                                                                   Court
    James P. Morris, Harold Fischer and          for the Eastern District of Pennsylvania
             Elmore Mack                                (Civ. Action No. 99-5749)
        Appellants No. 02-1401                     District Court: Hon. John R. Padova



      1
        John P. Morris died on March 28,              Argued: December 19, 2002
2002, after the district court proceedings
but prior to argument on appeal. By Order           Before: SLOVITER and McKEE,
dated August 28, 2003, we granted Jean                       Circuit Judges,
Morris’s motion for substitution pursuant
to F.R.A.P. 43(a), for her late husband,
                                                       2
appellant John Morris.                                     See n.1, supra.

                                             1
  and ROSENN, Senior Circuit Judge           trusteeship over Local 115 of the
                                             International Brotherhood of Teamsters
   (Opinion filed: March 16, 2004 )          (“IBT”) by James P. Hoffa, General
                                             President of the IBT. The trusteeship was
                                             imposed pursuant to Title III of the Labor-
                                             Management Reporting and Disclosure
JOHN F. INNELLI, ESQ. (Argued)               Act (“LMRDA”), and it resulted in the
Innelli and Molder                           subsequent removal of John P. Morris,
325 Chestnut Street                          Elmore Mack and Harold Fischer as
Suite 903                                    elected officers of Local 115. Hoffa
Philadelphia, PA 19106                       imposed the emergency trusteeship on
Attorneys for John P. Morris,                November 15, 1999.
Elmore Mack and Harold Fisher
                                                      Morris, Mack and Fischer
                                             (collectively referred to as the “Morris
THOMAS H. KOHN, ESQ.
                                             Plaintiffs”) filed suit three days after the
Markowitz & Richman
                                             trusteeship was imposed alleging that it
121 South Broad Street
                                             violated various provisions of the
Philadelphia, PA 19107
                                             LMRDA. The essence of their complaint
                                             was that Hoffa imposed the emergency
ROBERT M. BAPTISTE, ESQ. (Argued)
                                             trusteeship in retaliation for their
JAMES F. WALLINGTON, ESQ.
                                             opposition to Hoffa’s bid for the
SUSAN BOYLE, ESQ.
                                             presidency of the IBT in the 1996 and
Baptiste & Wilder, P.C.
                                             1998 elections. Count One alleged that
1150 Connecticut Avenue, N.W.
                                             Hoffa imposed the emergency trusteeship
Suite 500
                                             for an invalid purpose in violation of Title
Washington, D.C. 20036
                                             III of the LMRDA, 29 U.S.C. §§ 462, 464,
Attorneys for James P. Hoffa and
                                             and the IBT’s Constitution. Count Two
The International Brotherhood of
                                             alleged that Hoffa violated their rights to
Teamsters
                                             free speech guaranteed by Title I of the
                                             LMRDA, specifically 29 U.S.C. §
                                             411(a)(2), and disciplined them for the
                                             exercise of their free speech rights in
              OPINION
                                             violation of 29 U.S.C. § 529. Count Three
                                             alleged that Hoffa breached the IBT’s
                                             Constitution by imposing the emergency
                                             trusteeship over Local 115 in the absence
McKEE, Circuit Judge.
                                             of any colorable emergency, in violation
      These consolidated appeals arise       of the LMRDA, 29 U.S.C. § 185.
from the imposition of an emergency
                                                    A few days after the complaint was

                                         2
filed, the temporary trustee appointed by           interlocutory appeal pursuant to §
Hoffa scheduled hearings as required by             1292(b): “Whether Plaintiffs have
the IBT’s Constitution. At the conclusion           standing to recover for any damages on
of the hearings, an internal union hearing          behalf of the Local Union 115 for the time
panel i s s u ed a Report and                       period between the November 15, 1999
Recommendation finding that there was               emergency imposition and the General
sufficient reason for the imposition and            President’s May 31, 2001 decision issued
continuation of the trusteeship. Hoffa              after the hearing.”
adopted the panel’s Report and
                                                            For the reasons that follow, we will
Recommendation and continued the
                                                    affirm the district court’s grant of
trusteeship on May 31, 2000. On June 13,
                                                    summary judgment on Count Two in favor
2001, Hoffa dissolved the trusteeship
                                                    of Hoffa and against the Morris Plaintiffs.
when newly-elected officers of the Local
                                                    However, we will vacate the district
were installed.
                                                    court’s entry of judgment under Rule
        In the meantime, Hoffa filed a              54(b) on Count One and direct the district
motion for summary judgment, which the              court to enter summary judgment in favor
district court granted in substantial part.         of Hoffa and against the Morris Plaintiffs
In its summary judgment opinion, the                on their challenge to the prehearing
district court indicated that its disposition       emergency trusteeship.        As we will
of Hoffa’s summary judgment motion                  explain, based upon this holding, we need
might warrant the entry of final judgment           not reach the issue of standing that the
under Fed.R.Civ.P. 54(b). Accordingly,              district court certified for interlocutory
both sides filed Rule 54(b) motions.                appeal.
Hoffa also filed a motion for interlocutory
                                                              I. BACKGROUND
appeal of a number of issues under 28
U.S.C. § 1292(b). Thereafter, the district                    The IBT is an unincorporated
court entered Rule 54(b) final judgment             association that is a labor organization
on Count Two (the free speech claim) in             within the meaning of § 2(5) of the
favor of Hoffa and against the Morris               National Labor Relations Act (“NLRA”),
plaintiffs; entered Rule 54(b) final                29 U.S.C. § 152(b).       Local 115 is a
judgment on Count One with respect to               Pennsylvania unincorporated association
the maintenance of the post-hearing                 and a labor organization under the NLRA.
trusteeship in favor of Hoffa and against            It is also a subordinate body of the IBT
the Morris plaintiffs, and entered Rule             within the meaning of § 304 of the
54(b) final judgment on Count One with              LMRDA, 29 U.S.C. § 464.
respect to the pre-hearing emergency
                                                           John P. Morris was the elected
trusteeship in favor of Hoffa but against
                                                    Secretary-Treasurer and principal officer
Morris only.       The district court also
                                                    of Local 115. Elmore Mack and Harold
certified the following question of law for
                                                    Fisher were elected trustees of the local.

                                                3
All three were members of the Executive          Over the ensuing months, Smith and
Board of Local 115 and constituted the           McNamara allegedly met with IBT
majority of that Board under the                 representatives and agitated for a
                                                 trusteeship, with Smith complaining to
Local’s bylaws.
                                                 McNamara that the IBT was not moving
       The IBT Constitution governs the          fast enough. Morris claimed that Smith
relationship between the IBT and                 had been given target dates of April 1999
subordinate Local unions such as Local           and then July 1999, for creating a
115. James P. Hoffa was installed as             trusteeship.
General President of the IBT in mid-
                                                        Hoffa and the IBT had received
March, 1999, following a history of
                                                 numerous complaints about the abuses that
turmoil that culminated in a contentious
                                                 apparently characterized Local 115's
1998 election that was conducted under
                                                 leadership, and these allegations prompted
government supervision. Morris alleges
                                                 an investigation of the local. According to
that Hoffa initiated a campaign to oust
                                                 Hoffa, information developed during that
Morris, as well as those in Local 115 who
                                                 investigation revealed a “pretty
had been loyal to Morris, as soon as Hoffa
                                                 frightening portrayal” of Local 115:
took over.
                                                        We had these stories about
       On February 28, 1999, Brian Kada,
                                                        beatings. Smith said he was
a member of Local 115, had a
                                                        beaten up in a stairwell, that
conversation with Michael T. Breslin,
                                                        Johnny Morris carries a gun,
Frank McGuire and Billy Anderson during
                                                        the local was buying guns.
which Kada told them that Hoffa had
                                                        They had stun guns, they
informed James E. Smith, Jr., a Morris
                                                        had pepper spray, unusual
foe, that Local 115 would be put under
                                                        purchases for a local union,
trusteeship. It is alleged that Kada also
                                                        and things that are improper
said that Morris would be out of office
                                                        as far as I know, as far as I
and that Hoffa wanted Morris’s seats on
                                                        believe and we got that
the Philadelphia Regional Port Authority,
                                                        information and we acted on
the Joint Council 53 and the Pennsylvania
                                                        it.
Conference of Teamsters. Morris claimed
that Smith would run Local 115 in return
for Smith’s assistance in ousting Morris.
                                                 App. at 53.
      According to Morris, Gerald
                                                       The investigation lead Hoffa to the
McNamara had been communicating with
                                                 conclusion that it was necessary to impose
Hoffa as early as March 15, 1999.
                                                 an emergency trusteeship over Local 115.
McNamara was dissatisfied with Morris
                                                 Accordingly, on November 14, 1999,
and was waiting to hear if Hoffa was
                                                 Hoffa appointed Edward F. Keyser, Jr.,
going to place Local 115 in trusteeship.

                                             4
Temporary Trustee over the affairs of               the local. On November 22, 1999, Trustee
Local 115, effective November 15, 1999.             Keyser issued a Notice of Trusteeship
That same day (November 14), Hoffa                  Hearing pursuant to the IBT Constitution,
issued a Notice to the Officers and                 scheduling formal hearings on the need for
Members of Local 115, informing them of             a trusteeship for Thursday, December 9,
the reasons for the trusteeship.                    1999, and Saturday, December 11, 1999.3
       The Notice specified sixteen
reasons that included both general and                   A. The Trusteeship Hearing.
specific instances of violence and
                                                           According to Hoffa, a large
intimidation under Morris’s leadership
                                                    conference room and a smaller office were
dating back to 1955 and increasing in
                                                    made available to Morris’s counsel and
recent years. The intimidation included
                                                    witnesses throughout the course of the
charges that Morris and his business
                                                    ensuing hearings. Both rooms were
agents threatened and assaulted disloyal
                                                    adjacent to the membership hearing room,
members of Local 115, and that Morris
                                                    and they allowed Morris an opportunity
had purchased materials such as stun guns
                                                    for consultation and preparation. Hoffa
to wage war against disloyal union
                                                    claimed that the hearing panel kept the
members. Financial abuses were also
                                                    record open after the close of testimony so
noted, including a charge that Morris
                                                    that the parties or any member could
directed union members to perform
                                                    submit additional written testimony.
"extensive renovations and repairs on [his]
house" while still on the time clock for                   Trustee Keyser presented sixteen
their employers; that Morris required               witnesses, including an IBT auditor and
stewards to collect cash gifts for himself in       forensic auditors.      Morris and his
the form of annual “Christmas gifts,” and           supporters presented twenty-five
that he retaliated against members whose            witnesses.         Hoffa claims that
Christmas spirit did not embrace                    approximately sixty members presented
extortionate gift giving. The fiscal abuses         information during open microphone
also included charges that Morris had               sessions that provided an opportunity for
altered Local 115's Health and Welfare              any member who wanted to address the
Plan to suit his personal needs, and that he        panel to do so. Members also presented
used union funds to benefit family                  written statements, either directly to the
members.                                            panel, or through the Trustee, and then
       The November 14th notice and
accompanying letters of appointment                        3
                                                            The hearings were postponed at
resulted in Keyser being given authority            Morris’s request. Ultimately, they were
over all of the affairs of Local 115. It also       rescheduled for January 5-7, 2000, and
resulted in the ouster of Morris, Mack and          continued through January 19-21 and
Fisher from their elected positions with            February 28 through March 3, 2000.

                                                5
turned them over to the panel.        The               Morris also apparently harassed,
proceedings were transcribed and                 threatened and cursed any witness who
videotaped and both sides presented              opposed him, and he interrupted and
extensive briefs and proposed findings and       talked over anyone trying to make a
conclusions of law.                              statement against him. In addition, former
                                                 Business Agent Johnson sat next to Morris
       Morris argues that the IBT caused
                                                 during the hearings and fulfilled the role
more than 100 police officers to be placed
                                                 of one of the “tough guys” that Morris
outside the offices where the hearings
                                                 reportedly always had with him. While
were held. The police included SWAT
                                                 sitting next to Morris, Johnson also
team members in riot gear with face
                                                 threatened and cursed witnesses and the
masks. People entering the offices had to
                                                 investigating panel.
walk a “gauntlet” of masked police
officers, be searched, and pass through a               The hearing panel’s Report and
metal detector. Morris claims that the           Recommendation found overwhelming
IBT orchestrated this scene even though          evidence to support the imposition and
there was no indication of potential             continuation of the trusteeship. The panel
violence from Morris’s supporters.               concluded that lifting the trusteeship
Morris also claims that he was unable to         would result in substantial damage to
obtain any evidence to contradict the            Local 115 and its members because Morris
evidence offered by Hoffa and the IBT            had created a climate of fear and
because the emergency Trustee had sole           intimidation that was irreparably
possession and control of the books and          destroying the rights of the membership.
records of Local 115. Morris alleges that
                                                         B. The IBT’s Findings.
he did not know in advance whom the
Trustee would call as witnesses or what                 Hoffa accepted the panel’s
testimony the witnesses would provide.           recommendation and continued the
                                                 trusteeship. In doing so he wrote:
        Ironically, Morris apparently
demonstrated his propensity for                        During the eleven days of
intimidation during the hearings. At one               hearings, the longest
point, he became enraged at Local 115                  running hearing ever
President Smith.      While Smith was                  conducted by the [IBT],
testifying, Morris gestured as if he were              n u m e r o us members
loading and firing a shotgun at Smith’s                appeared to testify about the
head. This caused the hearing to adjourn               events in the Local. Much
for the day. The following day when the                of that testimony revealed a
hearing resumed, Morris denied making                  persistent pattern of abuse
the gesture even though his actions had                of power and suppression of
been captured on videotape.                            membership rights. Quite
                                                       si mp ly, the evidence

                                             6
       established that supporters                 improve real estate, to purchase printing
       of the John Morris                          equipment, buses, a snowplow and
       administration received                     vehicles that had no benefit to the
       special benefit s and                       members. Testimony from IBT auditor
       attention and those members                 William Evans and forensic auditors
       who spoke or acted in a                     Robert Walker and Joseph Wahl
       manner viewed as being                      established that Morris purposefully failed
       hostile to the administration               to maintain required accounting records in
       were abused, intimidated,                   order to hide much of his financial
       retaliated against and even                 mismanagement. In addition, Morris
       physically and economically                 falsified bank documents, commingled
       endangered.                                 money from various Local 115 Funds and
                                                   failed to file necessary tax documents.
                                                          Morris improperly used his
App. at 10.
                                                   authority to maintain control of Local 115.
       Hoffa found evidence of several             He placed members and their relatives in
violent, verbal and physical attacks by            jobs and demanded loyalty in return for
Morris and other Local 115 officials               keeping their jobs. The members so
against staff as well as union members.            placed were reportedly fired if Morris
Morris had conducted abusive inquisitions          thought that they were disloyal to him. In
and threatened union stewards. For                 addition, Morris arranged late night
example, union member Kada had been                meetings where union members were
“sucker-punched” in the face by Business           abused, threatened and, in one instance,
Agent “Jocko” Johnson on union property            assaulted. Hoffa concluded that the
during a union meeting, in full view of            officers of Local 115 did not properly
Morris. Morris had then pushed Kada and            represent these members.5
baited Kada to push him back.4
       The record contained substantial                   5
                                                           The trustee’s evidence established
evidence of financial malpractice by               a complete breakdown of democratic rule
Morris that Morris neither refuted nor             within Local 115, and much of this
explained. Morris used millions of dollars         evidence was almost entirely unrefuted.
of Local 115's money to purchase and               Morris did not deny requiring union
                                                   members to do personal work for him or
                                                   his relatives while they were “on the
       4
         Morris’s demeanor was often               clock.” Rather, he insisted that his position
beyond bounds attributable to normal               on the Joint Council entitled him to such
anger. He allegedly reinforced the                 services. In fact as noted above, it was
intimidation by carrying a gun in the              corroborated by Morris’s own conduct
office in violation of the IBT Constitution.       during the very hearings that were

                                               7
       The evidence also demonstrated              imposed.7       In essence, the plaintiffs
that Morris had violated the IBT                   alleged that Hoffa imposed the trusteeship
Constitution and federal law by                    because they opposed him in the 1996 and
consistently refusing to provide union             1998 IBT presidential elections. They
members with copies of their collective            claimed that Hoffa was attempting to
bargaining agreements.6                            suppress such opposition in the future.8 As
                                                   summarized above, Count One alleged
        The evidence confirmed that
                                                   that the trusteeship violated Title III of the
Morris had used the guise of “Christmas
                                                   LMRDA, 29 U.S.C. §§ 462, 464, and the
gifts” to extort money from members at
some of the higher paying union shops as
Hoffa had previously heard. Documents                     7
                                                           Originally, Kenneth Woodring, a
established that Morris had been                   union officer affected by the imposition of
embezzling money from the Union since              the trusteeship, was a plaintiff. However,
1981 when he awarded himself a raise               he moved to dismiss all of his claims
without the required Executive Board               against Hoffa and the IBT pursuant to
approval. At the end of 1989, Morris               Fed.R.Civ.P. 41(a)(1).
further enriched himself by causing the
                                                          8
Union to take out an insurance policy on                    Morris claimed that Hoffa, an
his life under false pretenses.                    attorney, who until 1993 was never
                                                   affiliated with the IBT, left the practice of
       Hoffa concluded that this evidence          law in that year to become the
demonstrated that a trusteeship was                administrative assistant to the President of
absolutely necessary.                              Teamsters Joint Council 43 for the sole
     II. DISTRICT COURT                            purpose of running for the office of the
PROCEEDINGS                                        General President of the IBT. Hoffa
                                                   made his first unsuccessful attempt at the
       As noted above, the Morris                  IBT’s Presidency in 1996.            Morris
Plaintiffs filed a complaint in the district       supported a slate opposed to Hoffa during
court against Hoffa and the IBT                    1996 election.
challenging the imposition of the                          During the 1998 elections, Morris
emergency trusteeship days after it was            once again supported a slate opposed to
                                                   Hoffa. Morris alleged that on May 3,
                                                   1998, William Walker, Sr., a retired
investigating claims of dictatorial control        Teamster and a Hoffa supporter, attended
of Local 115.                                      a Hoffa campaign fundraiser in Essington,
                                                   Pennsylvania. Walker asked Hoffa what
       6
          Members who attempted to                 he intended to do about Morris if Hoffa
participate in the preparation of proposals        was elected.        According to Morris,
prior to contract negotiations were told to        Hoffa’s reply was: “He’s the first f....r to
“shut up.”                                         go when I get in.”

                                               8
IBT Constitution; Count Two alleged that          interlocutory appeal under 28 U.S.C. §
Hoffa violated plaintiffs’ right to free          1292(b). Morris filed a motion for final
speech as guaranteed by Title I of the            judgment pursuant to Rule 54(b) the same
LMRDA, specifically, 29 U.S.C. §§                 day.
411(a)(2), and § 29; and Count Three
                                                            On December 28, 1999, the district
alleged that Hoffa breached the contract
                                                  court granted Morris’ motion for
between the Local and the IBT, i.e., the
                                                  preliminary injunction, enjoining Hoffa
IBT Constitution, by imposing the
                                                  and the IBT from exercising trusteeship
emergency trusteeship over Local 115 in
                                                  over Local 115 and ordering Hoffa and
the absence of any colorable emergency.
                                                  the IBT to return control over Local 115
Count Three further alleged that this also
                                                  to its duly elected officers. The district
violated the LMRDA, 29 U.S.C. § 185.
                                                  court concluded that the information
The plaintiffs sought various forms of
                                                  available to Hoffa and the IBT was
injunctive relief, compensatory and
                                                  insufficient to provide Hoffa and the IBT
punitive damages, and fees and costs.9
                                                  with a good faith belief that an emergency
        Hoffa filed an answer and a               existed sufficient to warrant the imposition
counterclaim. In his counterclaim, he             of an emergency trusteeship. Morris v.
requested judicial confirmation of the            Hoffa, 1999 WL 1285820 (E.D.Pa. Dec.
trusteeship under 29 U.S.C. § 464(c).10           28, 1999). Hoffa and the IBT appealed
Following additional discovery, the               and this court stayed the injunction
district court granted Hoffa’s motion for         pending the appeal. During the pendency
summary judgment in substantial part. In          of the appeal, the IBT conducted the
doing so, the court indicated that entry of       internal union hearing regarding the
final judgment qualifying for appeal              necessity for a trusteeship. As noted
pursuant to Fed.R.Civ.P. 54(b) might be           above, Hoffa, thereafter continued the
warranted. Morris v. Hoffa, 2001 WL               t r u s t ee s h ip b a s e d u p o n t h e
1231741 (E.D.Pa. October 12, 2001).               recommendation of the hearing panel. On
Following the court’s thoughtful lead,            June 12, 2000, we dismissed the appeal as
Hoffa thereafter filed a motion for final         moot because the internal union hearing
judgment under Rule 54(b) and for                 had been conducted and Hoffa had ruled
                                                  on the propriety of a trusteeship. Morris v.
                                                  Hoffa, 2000 WL 33727939 (3d Cir. June
       9
         The plaintiffs concede that the          12, 2000).
dissolution of the trusteeship on June 13,                On January 7, 2002, the district
2001 mooted the equitable relief sought in        court entered final judgment on Count
Counts One and Three.                             Two (the free speech count) in favor of
       10
         Hoffa concedes that the                  Hoffa and against all plaintiffs; entered
dissolution of the trusteeship moots his          final judgment on Count One with respect
counterclaim.                                     to the maintenance of the post-hearing

                                              9
trusteeship in favor of Hoffa and against           America, AFL-CI0, 900 F.2d 761, 766
Morris, Mack and Fischer; entered final             (4th Cir. 1990). The legislation was an
judgment on Count One with respect to               attempt to respond to abuses within the
the emergency pre-hearing trusteeship in            organized labor movement while
favor of Hoffa and against Morris only.             “minimizing governmental interference
As we noted at the outset, the court also           with the internal affairs of labor
certified the following question of law for         organizations.” Id. at 766-767. “Thus,
interlocutory appeal pursuant to §                  while substantive abuses were to be
1292(b):                                            addressed, the McClellan Committee
                                                    recommended that any corrective
       Whether Plaintiffs have
                                                    legislation insure union democracy.” Id.
       standing to recover any
                                                    at 767 (citation and internal quotations
       damages on behalf of the
                                                    omitted).12
       Local Union 115 for the
       time period between the                            Congress enacted Title III of the
       N o v e m b er 1 5 , 1 9 9 9                 LMRDA to address problems related to
       emergency imposition and                     imposition of trusteeships over local
       the General President’s May                  unions. Id.13 In doing so, Congress was
       31, 2000 decision issued                     concerned with past abuses related to
       after the hearing.                           imposition of trusteeships, but it was also
                                                    aware that “trusteeships are effective
                                                    devices for maintaining order within labor
 Morris v. Hoffa, 2002 WL 15900 at *7               organizations[]”. Id. Thus, “the goals of
(E.D.Pa. Jan. 4, 2002).11                           the [LMRDA] were to be accomplished
                                                    without emasculating the trusteeship as a
       Both the Morris Plaintiffs and
Hoffa filed timely appeals.
            III. DISCUSSION                                12
                                                                The Select Committee on
            A. The LMRDA                            Improper Activities in the Labor
                                                    Management Field that was responsible
       The LMRDA “was enacted [in                   for investigating abuses in organized labor
1959] in response to the perceived abuses           and recommending remedial legislation is
that plagued labor relations and                    often referred to as the “McClellan
undermined public confidence in the labor           Committee,” after Senator McClellan, the
movement.” Becker v. Industrial Union of            Committee’s chair.
Marine and Shipbuilding Workers of
                                                           13
                                                              The legislative history of Title III
                                                    is recited in detail in our opinion in Ross v.
       11
         The district court denied Hoffa’s          Hotel Employees and Restaurant
motion for § 1292(b) certification as to all        Employees International Union, 266 F.3d
other issues. Id.                                   236, 245-249 (3d Cir. 2001).

                                               10
control device.”14 Id.                                   agreements or other duties
                                                         of     a bargaining
       The LMRDA mandates that any
                                                         representative, restoring
trusteeship that is imposed conform to the
                                                         democratic procedures, or
constitution and bylaws of the union, and
                                                         otherwise carrying out the
the purposes for which the trusteeship is
                                                         legitimate objects of such
imposed must be legitimate. Id. More
                                                         labor organization.
particularly, § 302 of Title III of the
LMRDA provides:
       Trusteeships shall be                      29 U.S.C. § 462. Given the countless
       established                 and            circumstances that might give rise to a
       administered by a labor                    trusteeship, “Congress specifically
       o r g a n i z a ti o n o v e r a           declined to attempt to detail all of the
       subordinate body only in                   legitimate reasons for which a trusteeship
       accordance with th e                       might be imposed, leaving for the courts
       constitution and bylaws of                 the development of common law limiting
       the organization which has                 principles.” Becker, 900 F.2d at 767-768
       assumed trusteeship over                   (citations omitted).
       the subordinate body and
                                                          Congress also recognized that
       f or t h e p urpose o f
                                                  second guessing the judgments
       correcting corruption or
                                                  culminating in trusteeships could be both
       financial malpractice,
                                                  difficult and impractical. Accordingly, a
       assuring the performance of
                                                  presumption of validity attaches to
       c o l l e ct i v e b a rgainin g
                                                  trusteeships that are imposed for limited
                                                  duration and in a manner consistent with
                                                  the procedural mandates of the LMRDA.
       14
         It has been noted that “[w]hile          Id. at 768 (“Recognizing the delicate
trusteeships are normally used by national        judgments which international officers are
unions to prevent or eliminate                    called upon to make in imposing a
malpractices in subordinate organizations         trusteeship and conscious of the relative
and as a tool of efficient union                  inexpertness of outsiders, the [LMRDA’s]
administration, they can be, and have             guideline for evaluating a trusteeship
been, used as a tool by which national            supplies a presumption of validity, limited
officers suppress local autonomy over             in duration, when certain procedural
union activities.” J.D. Jolly v. Gorman,          requirements are met.”) (citation omitted).
428 F.2d 960, 966 (5th Cir. 1970) (citing         Title III of the LMRDA also provides:
Levitan, The Federal Law of Union
Trusteeship, in Symposium, Labor-                        In any proceeding pursuant
Management Reporting and Disclosure                      to this section a trusteeship
Act of 1959 (Slovekno, 1959)).                           established by a labor

                                             11
       organization in conformity                  trusteeship.” Id. (citations omitted). “The
       w i t h t h e p r o cedural                 notice should also provide the date, time,
       requirements of its                         and location of the hearing and indicate
       constitution and bylaws and                 that the local will have the opportunity to
       authorized or ratified after                respond to the charges.” Id. (citation
       a fair hearing either before                omitted). Courts do not, however, require
       the executive board or                      any particular form of notice as long as the
       before such other body as                   notice, together with any written
       may be provided in                          communications supplementing it, inform
       accordance with its                         those concerned of the date and time of
       constitution or bylaws shall                the hearing. Id.
       be presumed valid for a
                                                          The international union seeking to
       period of eighteen months
                                                   impose the trusteeship must present
       from the date of its
                                                   sufficient evidence to justify a trusteeship
       establishment and shall not
                                                   at the hearing, and “[t]he local must be
       be subject to attack during
                                                   accorded the opportunity to cross-examine
       such period except upon
                                                   the international’s witnesses and present
       clear and convincing proof
                                                   rebuttal evidence.” Id. at 769 (citations
       that the trusteeship was
                                                   omitted).16
       established or maintained in
       good faith for a purpose                    B. The Morris/Mack/Fischer Appeal
       allowable under section 462
                                                                 (No. 02-1401)
       of this title.
                                                           The Morris Plaintiffs argue that the
                                                   IBT failed to conduct the fair hearing
29 U.S.C. § 464(c) (italics added).                required to ratify and continue the
                                                   trusteeship. They also claim that the
       A “fair hearing” requires notice and
                                                   trusteeship is little more than Hoffa’s
an opportunity to defend. Becker, 900
                                                   illegal retaliation for the exercise of their
F.2d at 768.15 “[T]he notice should set out
                                                   speech. We will discuss each claim
in writing the factual basis for alleged
violations of law or the union’s
constitution that justify imposition of a
                                                          16
                                                            Lack of counsel does not make a
                                                   trusteeship hearing unfair because there is
       15
        “Under the common law prior to             no right to representation by counsel at
the passage of the LMRDA, a trusteeship            such a hearing. See, e.g., Transport
imposed upon a subordinate body was                Workers Union of Phila. Local v.
invalid unless the subordinate body was            Transport Workers Union of Amer., AFL-
granted a fair hearing.” J.D. Jolly v.             CIO, 2000 WL 1521507 at *2 (E.D.Pa.
Gorman, 428 F.2d at 967.                           Sept. 29, 2000).

                                              12
separately.                                          maintenance of trusteeship.
   (I). Did The IBT Conduct a Fair                          The court viewed Count One as
               Hearing                               asserting two separate claims – a pre-
                                                     hearing emergency trusteeship claim and
      to Ratify and Continue the
                                                     a post-hearing maintenance trusteeship
      Trusteeship (Count One)?
                                                     claim. 2002 WL 15900 at *3 n.5. The
                                                     court denied summary judgment to Hoffa
                                                     on the pre-hearing emergency trusteeship
        The district court concluded that
                                                     claim because it believed a genuine issue
the Morris Plaintiffs failed to establish a
                                                     of material fact existed as to whether the
genuine issue of material fact as to the
                                                     emergency trusteeship was initially
unfairness of the hearing. Accordingly,
                                                     imposed in accordance with the IBT
the district court held that the post-hearing
                                                     constitution. 2001 WL 1231741 at *4.
trusteeship met the requirements of 29
U.S.C. § 464(c) and was therefore entitled                   However, because Morris was no
to a presumption of validity which went              longer a member of Local 115 when the
unrebutted. 2001 WL 1231741 at *6.                   district court disposed of Hoffa’s summary
                                                     judgment motions, the court found that he
        The district court considered
                                                     lacked standing to challenge the pre-
allegations that the trusteeship was
                                                     hearing emergency trusteeship because
imposed in bad faith and for an improper
                                                     any such claim would be limited to
purpose in violation of § 462. The court
                                                     damages suffered by the Local. 2002 WL
first concluded as a matter of law that a
                                                     15900 at *3 (citing Ross v. Hotel
trusteeship is permissible if supported by
                                                     Employees and Restaurant Employees
a single proper purpose even if an
                                                     International Union, 266 F.3d 236, 249-
improper purpose is also alleged.17 Id. at
                                                     50 (3d Cir. 2001)). Accordingly, the
*7.      The court then considered the
                                                     district court granted summary judgment
numerous justifications the hearing panel
                                                     to Hoffa only as against Morris on the pre-
found that supported Hoffa’s decision to
                                                     hearing emergency trusteeship claim.
continue the trusteeship.              Id.
                                                     Mack and Fischer, although no longer
Consequently, the district court granted
                                                     elected officials of Local 115, are still
summary judgment in favor of Hoffa and
                                                     members of the Local. The district court
against The Morris Plaintiffs on Count
                                                     certified the issue of their standing to
One with respect to the post-hearing
                                                     pursue a damage claim on the Local’s
                                                     behalf for interlocutory appeal under §
       17
         As noted, the alleged improper              1292(b). (No. 02-2214).
purpose was Hoffa’s alleged vendetta                        Mack and Fischer do not contest
against Morris, Mack and Fischer for their           the district court’s ruling that a single
opposition to Hoffa in the 1996 and 1998             proper purpose is sufficient to justify a
elections.

                                                13
trusteeship even where improper purposes                    Local 115, in exchange for
are alleged.       Similarly, they do not                   which Smith, as ultimate
attempt to refute the hearing panel’s                       successor to Morris, would
factual findings that there were numerous                   permit Hoffa to control
proper purposes for ratifying and                           Local 115's seats on the
continuing the trusteeship.18 Rather, as                    Philadelphia Regional Port
we distill their argument, they appear to be                Authority, the Joint Council
claiming that there are genuine issues of                   and the Pennsylvania
material fact as to whether Hoffa and the                   Conference.
ITB conducted a fair hearing to ratify and
continue the trusteeship.
                                                     Appellants’ Br. (No. 02-1401), at 14-15.
       Initially, they claim that the hearing
                                                     They then argue that the district court
was unfair because its outcome was
                                                     held, in its preliminary injunction hearing,
predetermined. According to Mack and
                                                     that Morris was likely to establish at trial
Fischer:
                                                     that the information available to Hoffa
       It is uncontroverted . . . that               when he imposed the emergency
       as of February 23, 1999, an                   trusteeship was not sufficient to provide a
       agreement existed among                       good faith belief in the existence of an
       supporters of James E.                        emergency. See 1999 WL 1285820 at
       Smith, Jr., and Hoffa.                        *10. Thus, they claim that an inference
       Hoffa would use his                           can be drawn that Hoffa “would control
       authority as general                          the process of the hearing to ensure his
       president of the IBT to                       desired outcome.” Appellants’ Br. (No.
       impose a trusteeship upon                     02-1401), at 15. Accordingly, they
                                                     maintain that the district court’s failure to
                                                     “submit this dispute to a factfinder
       18
          The reasons for the continuation           constitutes reversible error.” Id. at 16.
of the trusteeship included: “refusal to             We disagree.19
provide members of the Local with copies                    At the outset, the district court’s
of their collective bargaining agreements;           grant of preliminary injunctive relief
intimidation and physical attacks on                 enjoining the imposition of the emergency
members; financial abuse. . . missing                trusteeship was not a merits disposition.
assets; extortion of Christmas cash gifts;
compelling members of the Local to do
                                                            19
work that benefitted Morris and his                           We exercise plenary review of the
relatives personally; and engineering of             district court’s grant of summary
the termination of jobs of Local members             judgment. Coolspring Stone Supply, Inc.
who were perceived as disloyal.” 2001                v. American States Life Ins. Co., 10 F.3d
WL 1231741 at *7.                                    144, 146 (3d Cir. 1993).

                                                14
“[A] decision on a preliminary injunction                   further establishes that
is, in effect, only a prediction about the                  Hoffa and the IBT
merits of the case.” United States v. Local                 conspired with James Smith
560, IBT, 974 F.2d 315, 330 (3d Cir.                        to create an excuse to
1992). Therefore, “a trial court, in                        institute a trusteeship. In
deciding whether to grant permanent                         exchange for his assistance
relief, is not bound by its decision or the                 in ousting Morris, Smith
appellate court’s decision about                            was promised control over
preliminary relief.” Id. Rather, the trial                  Local 115, and sure enough,
court “is free to reconsider the merits of                  that is exactly what
the case.” Id. Consequently, the district                   happened.
court’s grant of preliminary injunctive
relief does not suggest a genuine issue of
material fact sufficient to preclude the             Appellants’ Br. (No. 02-1401), at 23.
grant of summary judgment.                           However, this claim ignores the fact that
                                                     Smith was elected by secret ballot of the
       Moreover, Mack and Fischer do not
                                                     membership in an open and fair election.
contest the district court’s holding that the
                                                     As noted above, Local 115 conducted
existence of a single proper purpose for
                                                     elections for officers while this litigation
the imposition of a trusteeship establishes
                                                     was pending. A majority of the voting
the validity of the trusteeship, even where
                                                     members, not Hoffa, chose Smith to be
improper motives may exist. Thus, even if
                                                     president of the Local. And, Hoffa alleges
we assume arguendo that a Hoffa-Morris
                                                     without contradiction that he played no
vendetta motivated Hoffa’s efforts to oust
                                                     role in the election. Hoffa’s Br. at 23.
Morris, Mack and Fischer from Local 115,
                                                     Accordingly, we fail to see how an
we are still left with the district court’s
                                                     allegation that Hoffa promised Smith the
conclusion that the hearing panel found
                                                     presidency could defeat Hoffa’s motion
numerous proper justifications for
                                                     for summary judgment. While Mack and
imposing the trusteeship. Reasons, by the
                                                     Fischer assert this “uncontroverted”
way, which Mack and Fischer do not even
                                                     agreement that Hoffa would make Smith
begin to dispute.
                                                     the head of Local 115 in exchange for
       Moreover, the record does not                 Smith’s cooperation in ousting Morris,
support any connection between the                   they concede that there is no record
alleged Morris-Hoffa vendetta, the                   evidence that any such deal existed.
imposition of a trusteeship and the                  Rather, their assertion rests on a rather
allegation that Hoffa rewarded Smith with            ethereal inference. See Appellants’ Br.
the presidency of Local 115. In their                (02-1401), at 7 n.3 (“Whether or not Hoffa
brief, Mack and Fischer argue that:                  actually promised Smith control over
                                                     Local 115, as Brian Kada suggested [in
       the    evidentiary     record
                                                     the Breslin Declaration], is not established

                                                15
on the record below; however it is                 02-1401), at 17-18.
reasonable to infer that Smith received
                                                           However, Mack and Fischer have
such a promise”). (Emphasis added).
                                                   waived their right to make these two
       In any event, the Morris Plaintiffs         arguments on appeal because they did not
appear to retreat from their claim that the        raise them in the district court. Rather, as
outc o me o f a n y h e a ri n g w as              the district court explained, the challenge
predetermined and instead now present              to the fairness of the hearing was based on
two reasons for concluding that the                a claim that “(1) heavy police presence
hearing was unfair. First, they claim that         inhibited members from testifying;21 and
they were unable to present an effective           (2) [Morris, Mack and Fischer] were not
case and cross-examine witnesses because           allowed to have the assistance of counsel
they did not have full access to Local             during the hearing.”22 2001 WL 1231741
115's books and records. They claim that
the books and records were in the custody
and control of the Trustee after the               face masks. Persons entering the union
imposition of the emergency trusteeship.           hall had to walk a gauntlet of dozens of
Thus, they could not know which                    masked officers lined up in two columns,
witnesses the Trustee would call each day          being searched and passing through a
at the hearing. Second, they argue that            medical detectors.” Id. (citation and
the police presence outside the union hall         internal quotations omitted). Mack and
where the hearing was held was “per se             Fischer argue that the IBT caused this
intimidation, even for Teamsters,” that            heavy police presence even though there
biased the panel members by sending “a             was no indication for a potential for
very clear message” to the panel that the          violence by Morris’s supporters.
charges had merit.20 Appellants’ Br. (No.          Appellants’ Br. (N002-1401) at 17-18.
                                                          21
                                                            The district court held that the
       20
         Plaintiffs claim that the IBT’s           presence of police security at the site of
website reported: “Outside the hall, more          the hearing did not by itself render the
than 100 law enforcement officers were on          hearing unfair. 2001 WL 1251741 at *6
hand to ensure that the hearing proceeded          (citing Chapa v. Local 18, 737 F.2d 929,
without violence instigated by Morris              933 (11th Cir. 1984).
supporters.” Appellants’ Br. (No. 02-
                                                          22
1401), at 9 (citation omitted). They also                   The district court held that there is
say: “The IBT brought in these police              no right to counsel at a trusteeship
officers, including armed police and               hearing. 2001 WL 1231741 at *6, and
SWAT team officers assisted by                     that is not contested on appeal.
sharpshooters, canine officers and officers        Furthermore, it appears from the
mounted on horseback. The police                   transcripts of the hearing that Morris,
officers were clad in black riot gear, with        Mack and Fischer were represented by

                                              16
at *6 (emphasis added).         As a general                 to express at meetings of the
rule, “absent compelling circumstances an                    labor organization his
appellate court will not consider issues                     views, upon candidates in
that are raised for the first time on appeal.”               an election of a labor
Patterson v. Cuyler, 729 F.2d 925, 929                       organization or upon any
(3d Cir. 1984), overruled on other                           business properly before the
grounds recognized in Carter v. Rafferty,                    meeting, subject to the
826 F.2d 1299 (3d Cir. 19987). Here,                         organization’s established
Mack and Fischer do not suggest any such                     and reasonable rule s
compelling circumstances and we can                          pertaining to the conduct of
think of none.                                               meetings: Provided, That
                                                             nothing herein shall be
(ii). IBT’s Retaliation for Engaging in
                                                             construed to impair the right
Protected Speech.
                                                             of a labor organization to
       In Count Two of their complaint,                      adopt and enforce
the Morris Plaintiffs alleged that Hoffa                     reasonable rules as to the
violated their rights to free speech under                   responsibility of every
the Title I of the LMRDA,23 29 U.S.C. §                      member toward the
411(a)(2), and disciplined them for the                      o r g a n i z a ti o n a s a n
exercise of those rights in violation of 29                  institution and to his
U.S.C. § 529.                                                refraining from conduct that
                                                             would interfere with its
    Section 101(a)(2) of Title I of the
                                                             performance of its legal or
LMRDA provides:
                                                             contractual obligations.
       Every member of any labor
       organization shall have the
       right to meet and assemble                     29 U.S.C. § 411(a)(2). Section 102 of
       freely with other members;                     Title I, 29 U.S.C. § 412, provides that any
       and to express any views,                      person whose rights have been infringed
       arguments, or opinions; and                    by a violation of § 101 may bring an
                                                      action in the district court seeking such
                                                      relief as may be appropriate. Section 609
counsel who participated in the hearing.              of Title VI of the LMRDA prohibits
Hoffa’s Appendix, at 103-105.                         certain kinds of discipline of a union
       23
         Title I of the LMRDA is referred             member. It provides:
to as the “Member’s Bill of Rights.” See                     It shall be unlawful for any
Farrell v. International Brotherhood of                      labor organization, or any
Teamsters, Chauffeurs, Warehousemen &                        officer, agent, shop steward,
Helpers of America (Airline Division), 888                   or other representative of a
F.2d 459, 461 (6th Cir. 1989).

                                                 17
       labor organization, or any                   as a political reprisal against
       employee thereof to fine,                    the members of Local 115
       suspend, expel or otherwise                  for their vigorous electoral
       discipline any of its                        opposition to Hoffa's
       members for exercising any                   candidacy for General
       right to which he is entitled                President and his policies."
       under the provision of this                  (Compl. ¶ 58 (emphasis
       chapter. The provisions of                   added)). Plaintiffs further
       section 412 of this title shall              allege that "Defendants
       be applicable in the                         imposed the trusteeship
       enforcement of this section.                 against Local 115
                                                    specifically to suppress the
                                                    opposition policies,
29 U.S.C. § 529.                                    electoral activities and
                                                    dissent of Plaintiff Morris
       In their appeal from the grant of
                                                    and the Plaintiff elected
summary judgment on Count Two, the
                                                    members of the Local 115
Morris Plaintiffs argue that the district
                                                    Executive Board, to the
court erred by holding that “as a matter of
                                                    policies and administration
law, a determination that a presumption
                                                    of Defendant Hoffa and the
of validity attached to the continuation of
                                                    IBT" (Compl. ¶              59
a trusteeship pursuant to 29 U.S.C. §
                                                    (emphasis added)); that
464(c), precludes the violation of an
                                                    "Defendants have imposed
individual union member’s rights under 29
                                                    the trusteeship against
U.S.C. §§ 411 and 529.” Appellants’ Br.
                                                    Local 115 to undermine the
(02-1401), at 1 (emphasis in original).
                                                    credibility of the expected
        However, that is not what the               trial testimony of Plaintiffs
district court held. Rather, the district           Morris, Woodring and other
court held that the Morris Plaintiffs’              members of Local 115 ..."
nominal Title I claims were really a                (Compl. ¶ 60 (emphasis
challenge to the validity of the trusteeship        added)); and that
that must therefore be brought under Title          "Defendants have imposed
III.     The district court correctly               the trusteeship upon Local
characterized the Title I claims as follows:        115 in order to retaliate
                                                    against the members of
       Plaintiffs allege that
                                                    Local 115 and its elected
       "Defendants' imposition of a
                                                    officers, the Plaintiffs, for
       purported 'emergency'
                                                    their past and current
       trusteeship over Local 115
                                                    political opposition to the
       was carried out in bad faith,
                                                    policies and administration

                                               18
       of Defendant Hoffa."                            Consequently, the district court granted
       (Compl. ¶ 61 (emphasis                          summary judgment to Hoffa on the Count
       added).) Plaintiffs expressly                   Two claim.
       cast their Title I claim as
                                                               For reasons not apparent to us, the
       one "challenging th e
                                                       Morris Plaintiffs do not address the district
       unlawful imposition of a
                                                       court’s rationale for granting summary
       trusteeship, not the job
                                                       judgment to Hoffa on their Title I claim.
       terminations of Plaintiffs."
                                                       In fact, they do not even mention that the
       (Pls.' Mem. at 44- 45.)
                                                       district court dismissed their Title I claim
                                                       as nothing more than a Title III attack on
                                                       the validity of the trusteeship. Instead,
2001 WL 1231741 at *10 (italics in
                                                       they argue that their removal as officials
original). The district court held that the
                                                       of Local 115 for engaging in protected
claim was, in reality, “just another way of
                                                       free speech constitutes retaliatory
saying that the trusteeship was invalid
                                                       discipline in violation of 29 U.S.C. § 529.
because it was imposed for an improper
                                                       See Appellants’ Br. (No. 02-1401), at 21
motive.” Id. The court then relied upon
                                                       (“[R]emoval from union office for the
the reasoning in Farrell v. International
                                                       exercise of protected speech. . .constitutes
Brotherhood of Teamsters, Chauffeurs,
                                                       improper retaliatory discipline in violation
Warehousemen & Helpers of America
                                                       of 29 U.S.C. § 529.”) (emphasis added).
(Airline Division), 888 F.2d 459 (6th Cir.
1989), in finding that challenges to the                     Even if we assume arguendo that
validity of a trusteeship must be raised               Morris, Mack and Fischer were all
under Title III, not Title I.2 4                       engaging in protected speech and also
                                                       assume that they were disciplined for
                                                       doing so, their claim can still not survive
       24
          In Farrell, flight attendants                our holding in Sheridan v. United
claimed that the international union’s                 Brotherhood of Carpenters and Joiners of
imposition of a trusteeship immediately
after they created their own local violated
their Title I right to vote in local elections.        appellants with their appropriate remedy.
  However, they did not challenge the                  A determination of the validity vel non of
validity of the trusteeship under Title III.           the trusteeship must precede any
The court of appeals found that the flight             determination of the appellants’ rights to
attendants could not claim violation of                hold local elections. If the trusteeship is a
their Title I rights by means of a                     fraud, the statute provides a mechanism to
trusteeship without first addressing the               prove it and thereafter recover their Title
validity of the trusteeship under in an                III rights. But, let them not put the cart
action under Title III. The court wrote:               before the horse.” 888 F.2d at 462.
“Title III, not Title I, provides these

                                                  19
America, Local No. 626, 306 F.2d 152 (3d             the majority of appellate courts have held
Cir. 1962). There we held that neither               that retaliatory removal from union office
Title I nor Section 609 of Title VI (29              for exercising Title I free speech rights
U.S.C. § 529) provide a remedy to a                  violates 29 U.S.C. § 529. Appellants’ Br
business agent who was removed from                  (No. 01-1401). at 21 (citing Bradford v.
elected office prior to the expiration of his        Textile Workers of America, AFL-CIO,
term. We stated that “[i]t is the union-             Local 1093, 563 F.2d 1138, 1141-1142
member relationship, not the union-officer           (4th Cir. 1977) (collecting cases and
or union-employee relationship, that is              criticizing Sheridan)). They also argue
protected.” Id. at 157. We elaborated                that Sheridan “does not represent the
upon this in Harrison v. Local 54 of the             [current] position of this court.”
American Federation of State, County and             Appellants’ Br (No. 02-1401). at 22 n.7.
Municipal Employees, 518 F.2d 1276 (3d
                                                            However, Sheridan has been
Cir. 1975):
                                                     followed in Martire v. Laborers’ Local
       The union member is free to                   Union 1058, 410 F.2d 32, 35 (3d Cir.
       express views, arguments or                   1969), Harrison v. Local 54, 518 F.2d at
       opinions on matters of                        1281, and, most recently, in Ruocchio v.
       union business even if the                    United Transportation Union, Local 60,
       expressions are libelous or                   181 F.3d 376, 381 n.5 (3d Cir. 1999).
       malicious without fear of                     Moreover, because Sheridan is the law of
       discipline. Conversely, the                   this circuit it controls our analysis
       LMRDA does not provide                        notwithstanding any conflicting authority
       relief to a union officer for                 from other Circuit Courts of Appeals. See
       suspension as an officer, nor                 Reich v. D.M. Sabia Co., 90 F.32d 854,
       for loss of income resulting                  855, n.2 (3rd Cir. 1996) (“It is the tradition
       therefrom. Nor does the Act                   of this court that a holding of a panel in a
       p r o v i d e r e l i ef f r o m              reported opinion is binding on subsequent
       wrongful termination from                     panels.).
       employment.            What is
                                                             Nonetheless, a caveat is in order.
       protected is the union-
                                                     In Finnegan v. Leu, 456 U.S. 431 (1982),
       membership relationship.
                                                     the Supreme Court concluded that the
                                                     language of §§ 411(a)(1) and (2) as well
                                                     as Title I’s legislative history established
518 F.2d at 1281 (3d Cir. 1975). Title I of
                                                     “that it was rank-and-file union members
the LMRDA therefore affords no remedy
                                                     – not union officers or employees, as such
for any damages resulting from plaintiffs’
                                                     – whom Congress sought to protect.” Id.
removal as officers of Local 115.
                                                     at 437. In dong so, the Court approvingly
      The Morris Plaintiffs attempt to               cited our decision in Sheridan. Id. at 438.
undermine this reasoning by arguing that

                                                20
        However, about seven years after               Moreover, the district court did not grant
Finnegan, the Court held in Sheet Metal               summary judgment to Hoffa on Count
Workers’ International Association v.                 Two on the basis of Sheridan. Rather, as
Lynn, 488 U.S. 347 (1989), that the                   noted above, Hoffa was granted summary
removal of an elected business agent did              judgment because the district court held
violate Title I’s free speech provisions.             that plaintiffs’ nominal Title I action was
The Court distinguished between the                   really a Title III challenge to the
removal of an appointed business agent, as            imposition of the trusteeship. The Morris
occurred in Finnegan, and the removal of              Plaintiffs do not even discuss that issue.
an elected business agent. The Court                  They do not even mention the Court’s
noted that when an elected official is                decision in Sheet Metal Workers.
removed from office, the membership is                Therefore, we need not inquire into the
deprived of its representative of choice.             impact, if any, that Sheet Metal Workers
Id. at 355. “[T]he potential chilling effect          has on the continued validity of our
on Title I free speech rights is more                 holding in Sheridan.25
pronounced when elected officials are
discharged. Not only is the fired official
likely to be chilled in the exercise of his                  25
                                                               Our decision in Ross v. Hotel
own free speech rights, but so are the                Employees and Restaurant Employees
members who voted for him.” Id.                       Int’l Union, 266 F.3d 236, 257 (3d Cir.
Accordingly, the Court held that the                  2001), precludes the recovery of personal
retaliatory removal of an elected official            damages under Title III of the LMRDA by
can be actionable under Title I. The                  an appointed full-time salaried employee
Court also held that the removed official             of a union flowing from the termination of
was not precluded from bringing a Title I             his/her appointed employment. “Relief
action because he had been removed                    under [Title III] must be sought on behalf
during a Title III trusteeship. Id. at 356            of the local union organization and the
(“[W]e find nothing in the language of the            entire union membership must reap the
LMRDA or its legislative history to                   benefits.” Id. As noted in n.15, supra,
suggest that Congress intended Title I                the district court, on the basis of Ross,
rights to fall by the wayside whenever a              found that because Morris was no longer
trusteeship is imposed.’).                            a union member, he could not pursue a
       However, for reasons that are not              damages claim on behalf of the Local for
apparent to us, the Morris Plaintiffs (who            any damages the Local suffered as a result
were elected officials of Local 115) do not           of the imposition of the pre-hearing
rely upon Sheet Metal Workers to support              emergency trusteeship. The district court
their argument that their removal from                further held that Ross precluded Mack and
elected office was improper retaliation in            Fischer, who unlike Morris, were still
violation of their Title I free speech rights.        union members, from asserting a claim for
                                                      personal damages under Title III. 2002

                                                 21
B. The Hoffa § 1292(b) Interlocutory                     evidence creates a genuine
Appeal                                                   issue of material fact under
                                                         Rule 56 as to whether Hoffa
             (No. 02-2214).
                                                         imposed the emergency
                                                         trusteeship in accordance
                                                         with the IBT constitution. If
        We have already noted that the
                                                         Plaintiffs establish at trial
district court viewed the Count One
                                                         that Defendants' imposition
challenge to the imposition of the
                                                         o f t h e e m e r g en cy
trusteeship as two separate claims – a
                                                         trusteeship suffered from
“pre-hearing emergency trusteeship” claim
                                                         this procedural deficiency,
and a “post-hearing maintenance
                                                         Plaintiffs would then have
trusteeship” claim – and granted summary
                                                         the opportunity to proceed
judgment to Hoffa on the post-hearing
                                                         on the damages claim for
claim while denying summary judgment
                                                         the period between the
on the pre-hearing claim. The district
                                                         defective imposition of the
court explained:
                                                         emergency trusteeship on
       This Court has previously                         November 15, 1999, and
       concluded, at the                                 Hoffa's May 31, 2000
       preliminary injunctio n                           decision, based on the post
       stage, that the evidence                          hoc hearing, to continue the
       demonstrated a reasonable                         trusteeship. Accordingly,
       likelihood of proving that                        the Court denies the motion
       the information available to                      for summary judgment as to
       Hoffa at the time he decided                      the emergency trusteeship
       to impose the emergency                           period from November 15,
       trusteeship was insufficient                      1999 to May 31, 2000.
       to provide him with a good
       faith belief in the existence
       of an emergency. This                       2001 WL 1231741 at *4. The district
                                                   court then limited any recovery to the
                                                   damages suffered by Local 115. The court
WL 15900 at *6. However, it also held              explained:
that Ross did not address the issue of                   Plaintiffs have not yet
Mack’s and Fischer’s standing to recover                 specified the nature of the
damages on behalf of Local 115 from the                  compensatory damages
imposition of the pre-hearing emergency                  sought under Title III.
trusteeship. Id. Consequently, it certified              Plaintiffs may not, however,
that issue for interlocutory appeal. Id.                 collect any personal


                                              22
       damages for lost wages, loss
       of position, or any other
       individual damages on this                    at 355; “the potential chilling effect of
       portion of the Title III                      Title I free speech rights is more
       claim. The potential damage                   pronounced when elected officials are
       recovery on a Title III claim                 discharged. Not only is the fired official
       is limited to damages to the                  likely to be chilled in the exercise of his
       local union itself. See Ross                  own free speech rights, but so are the
       v. Hotel Employees &                          members who voted for him.” Appellees’
       Restaurant Employees Int'l                    Br. (O2-2214), at 13.            As another
       Union, [266 F.3d 236 (3d                      example, Mack and Fischer say the
       Cir. 2001)]. The Court does                   question of whether the manner in which
       not reach the question of                     Hoffa imposed the emergency trusteeship
       Plaintiffs' entitlement to                    “resulted in a chilling effect on the
       such damages on behalf of                     membership of Local 115, and the extent
       the local union.26                            of the damages sustained by the
                                                     membership of Local 115 as a result
                                                     thereof, is a question that is best left in the
       26
           Mack and Fischer appear to                hands of the finder of fact.” Id. at 15.
concede that they have yet to identify the                   Admittedly, Mack and Fischer do
nature of the damages they seek on behalf            make an allegation of appropriate Title III
of Local 115. They argue that because                damages in a footnote in their brief.
Ross was decided during the pendency of              There they state:
the summary judgment proceedings, the
“nature and quantum of damages is not                       Title III damages in the case
part of the record on the motion for                        at bar involve, inter alia,
summary judgment.” Appellees’ Br. (No.                      transfer of at least one union
02-2214), at 13. Nonetheless, they assert                   shop organized by Local
that “the court [of appeals] can reasonably                 115 to Teamsters Local 500,
infer the nature, if not the quantum, of                    the Local of emergency
damages to Local 115 and its membership                     trustee Edward J. Keyser,
generally.” Id.                                             Jr., in exchange for his
        However, it is not our function to                  support. The membership
“infer the nature” of their damages.                        fees of the transferred union
Moreover, when Mack and Fischer do                          shop are significant enough
refer to their damages, it is clear that they               to justify the continued
are claiming personal Title I damages, not                  existence of Local 500,
Title III damages to the local. For                         which was suffering a
example, they quote the following from                      significant decline.
Sheet Metal Workers Int’l Assn., 488 U.S.

                                                23
                                                    continued following a fair hearing.
Id. at*4 n.5.                                           Section 304(c) of Title III of the
                                                    LMRDA provides, in relevant part:
       At some point after a status
conference and filing of memoranda,                        In any proceeding pursuant
Morris conceded that he was no longer a                    to this section a trusteeship
member of Local 115. Accordingly, as                       established by a labor
we have noted, the district court found that               organization in conformity
since “[t]he parties agree that because                    w i t h t h e proced u r a l
Plaintiff Morris is no longer a member of                  requ ireme nts o f its
the Local, he lacks standing to pursue a                   constitution and bylaws and
claim with respect to temporary                            authorized or ratified after a
trusteeship because such damages claim                     fair hearing either before
would be limited to damages on behalf of                   the executive board or
the Local.” 2002 WL 15900 at *3 (citing                    before such other body as
Ross v. Hotel Employees and Restaurant                     may be provided in
Employees International Union, 266 F.3d                    accordance with its
236, 249-250 (3d Cir. 2001)).                              constitution or bylaws shall
                                                           be presumed valid for a
        Thereafter, the court certified only
                                                           period of eighteen months
the aforementioned question of Mack’s
                                                           from the date of its
and Fischer’s standing for interlocutory
                                                           establishment and shall not
appeal. However, we need not answer the
                                                           be subject to attack during
certified question because we agree with
                                                           such period except upon
Hoffa that the district court erred by
                                                           clear and convincing proof
splitting the challenge to the imposition of
                                                           that the trusteeship was not
the trusteeship into two separate claims.
                                                           established or maintained in
Under the plain language of § 464(c), the
                                                           good faith for a purpose
district court’s holding on the validity of
                                                           allowable under section 462
the post-hearing maintenance trusteeship
                                                           of this title.
necessarily established the validity of the
pre-hearing emergency trusteeship.
Therefore, Local 115 could not have
                                                    29 U.S.C. § 464(c) (italics added).
suffered any damages from the imposition
                                                    “Because the Act provides that a
of the emergency trusteeship that was
                                                    trusteeship may be ‘authorized or ratified
                                                    after a fair hearing,’. . ., a hearing meeting
Id. at 15 n.8. However, they never made             the requirements of the Act need not
this damages allegation in the district             always precede the imposition of a
court, and it has therefore been waived.            trusteeship.” Becker, 900 F.2d at 769
                                                    (citing 29 U.S.C. § 464(c) (italics in

                                               24
original).     Accordingly, “[p]ost hoc                    In opposing Hoffa’s appeal, Mack
ratification of a trusteeship is consistent        and Fischer ignore the fact that the plain
with the Act so long as the union’s                language of § 464(c) validates the pre-
constitution provides for such a process,          hearing emergency trusteeship absent
the ratification hearing otherwise meets           sufficient evidence to overcome the
the requirements of the Act, and the               presumption of validity. Instead, they
hearing follows the imposition of a                argue that we cannot reach the validity of
trusteeship with reasonable promptness.”           the pre-hearing trusteeship without
Id. (citations omitted).                           improperly expanding the question
                                                   certified for interlocutory appeal beyond
       The district court found that “the
                                                   the issue of standing. We disagree.
post-hearing trusteeship meets the
requirements of § 464(c) and is entitled to                “Although the scope of review on
the statutory presumption of validity.”            an interlocutory appeal is generally
2001 WL 1231741 at *6.                That         constrained to the questions certified for
presumption was not rebutted. The plain            review by the district court, we may
language of § 464(c) therefore compels a           consider any grounds justifying reversal.”
finding that the emergency trusteeship was         Billing v. Ravin, Greenberg & Zackin,
valid. Section 464(c) expressly requires           P.A., 22 F.3d 1242, 1245 (3d Cir. 1994)
the presumption of validity of the                 (italics added).     Moreover, “appellate
trusteeship be effective “for a period of          jurisdiction [under § 1292(b)] applies to
eighteen months from the date of its               the order certified to the court of appeals
establishment.” It also provides that the          and is not tied to the particular question
trusteeship “shall not be subject to attack        formulated by the district court.” Yamaha
during such period.” Consequently, the             Motor Corp. v. Calhoun, 516 U.S. 199,
eighteen month period of validity of the           205 (1996). Therefore, while we cannot
trusteeship cannot be construed to begin at        “reach beyond the certified order to
the conclusion of the ratification hearing         address other orders made in the case,” we
or at any time other than “the date of its         can “address any issue fairly included
establishment.”                                    within the certified order.” Id. (italics
                                                   added). Here, our conclusion that §
        Here, the eighteen month period
                                                   464(c) necessitates a finding that the
began on November 15, 1999, when Hoffa
                                                   emergency trusteeship is valid is fairly
imposed the emergency trusteeship, and
                                                   included within the certified question of
under the statute, it was not subject to
                                                   plaintiffs’ standing to pursue a Title III
attack during such time period. Therefore,
                                                   claim for the period of the emergency
Mack and Fischer are barred from
                                                   trusteeship.27
bringing any action for damages on behalf
of Local Union 115 for violations of Title
III for 18 months following that date.                    27
                                                             We commend the district court
                                                   on its handling of this complex and hotly

                                              25
            IV. CONCLUSION
        For all of the above reasons, we
will affirm the district court’s grant of
final judgment under Rule 54(b) on Count
Two to Hoffa and against the Morris
Plaintiffs, However, we will vacate the
district court’s Rule 54(b) final judgments
on Count One and remand with directions
that the district court enter summary
judgment on Count One in favor of Hoffa
and against the Morris Plaintiffs. We will
also remand for disposition of Count
Three of the complaint.28


contested dispute, and on the precision
and thoroughness of nearly all of its legal
analysis. We disagree only with the
court’s decision to split Count One into
two separate claims.



       28
         In Count Three, the Morris
Plaintiffs alleged that Hoffa and the IBT
violated the IBT Constitution by imposing
the emergency trusteeship over Local 115
in the absence of any colorable
emergency, in violation of the LMRDA,
29 U.S.C. § 185.        In Count One, they
challenged the imposition of the
emergency trusteeship on the grounds that
it violated both Title III of the LMRDA
and the IBT Constitution. In discussing
Count One in its summary judgment                     remains of the Count Three claim given
opinion, the district court noted that, “[t]he        our holding that summary judgment
provisions in the IBT constitution                    should be granted to Hoffa and against the
governing trusteeships closely track those            Morris Plaintiffs on the Count One claim.
in the LMRDA.” 2001 WL 1231741 at                     However, this is best resolved by the
*3. Therefore, it may well be that nothing            district court.

                                                 26
