                                                                                                                           Opinions of the United
2001 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


9-20-2001

Ross v. Hotel Employees
Precedential or Non-Precedential:

Docket 00-3142




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Filed September 17, 2001

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 00-3142

GEORGE A. ROSS,
       Appellant

v.

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

Appeal from the Judgment of
the United States District Court
for the Western District of Pennsylvania
Civil Action No. 98-cv-01131
Magistrate Judge: Francis X. Caiazza

Argued: September 14, 2000

Before: ROTH, McKEE and RENDELL, Circuit Judge s

(Opinion filed: September 17, 2001)

       THOMAS M. CASTELLO, ESQ.
        (Argued)
       Plunkett & Cooney, P.C.
       3000 USX Tower
       600 Grant Street
       Pittsburgh, PA 15219
       Attorney for Appellant




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

OPINION OF THE COURT

McKEE, Circuit Judge.
We are asked to review the district court's grant of
summary judgment in favor of Hotel Employees and
Restaurant Employees International Union ("HEREIU"), and
Robert Baker and Carol Carlson; and against plaintiff
George Ross. Ross sued under Title III of the Labor
Management Reporting and Disclosure Act of 1959. For the
reasons that follow, we will affirm.

I. Factual and Procedural Background1

George Ross is a member of Local 57, a subordinate labor
organization of HEREIU. Before January 6, 1998, Ross had
been an elected non-salaried member of the Executive
Board of that Local as well as an appointed full time
salaried employee holding the title of business agent.2

On September 5, 1995, the United States entered into a
Consent Decree with HEREIU. The Consent Decree
appointed a federal monitor "for the remedial objective of
relieving HEREIU and Local 57 from the direct or indirect
influence of any organized crime group or the threat of
such an influence." App. At 104. Sometime during the
summer of 1997, the United States Department of Justice
began investigating organized crime's relationship with
_________________________________________________________________

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

2. At all times relevant to the issues before us, Ross held an appointed
office.

                               2



Local 57. Thereafter, the federal monitor brought charges of
corruption involving several officers of Local 57 including
Louis Sanfilippo, President; Nancy Davis, Secretary-
Treasurer; Vince Fera, Recording Secretary; and Louis
Masco, a union member.

At the same time this investigation was proceeding, a
power struggle erupted between Local 57's "power base"
and three of the other officers of the Local: Ross, Nassan
and Brown.3 Ross and Brown were then business agents of
Local 57, and Nassan was a general organizer. According to
Ross, the power struggle progressed to the point that the
Local's Executive Secretary, Nancy Davis,4 asked the
International to assume control of Local 57 by establishing
a trusteeship.

In November of 1997, the federal monitor also requested
that a trusteeship be established based on the charges
brought against the officers of Local 57. Eventually, Robert
Baker was appointed as the first of two Trustees who
assumed control of Local 57.5 On the same day he was
appointed, Baker fired Nassan, Ross and Brown; and
Sanfilippo resigned. However, Nassan, Ross and Brown
were rehired within 24 hours of their firing after
complaining to the monitor.

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

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

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

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

                               3



that the continuation of the Trusteeship is improper and
therefore must be dissolved." Ross' Complaint atP 26 (No.
98-629). The plaintiffs sought declaratory and equitable
relief under Title III of the Labor Management Reporting
and Disclosure Act of 1959 (the "LMRDA") which governs
the creation and maintenance of trusteeships by labor
organizations. See 73 Stat. 519 SS 301-01 (1959), 29 U.S.C.
SS 461-66 (1998 & Supp. 2000) The prayer for relief
included a request that the court dissolve the Trusteeship,
reinstate the constitution and by-laws of Local 57, and
order immediate elections. The plaintiffs also moved for a
TRO to enjoin the Trustees from running Local 57's
operations. That motion was denied. At the end of April,
Nassan and Brown withdrew from the lawsuit, leaving Ross
as the only plaintiff.6

During the summer of 1998, the Trustees decided to hold
new elections and terminate the Trusteeship. They also
issued new election guidelines under which Ross became
ineligible to run for office because his union dues were
delinquent. Ross argues that these guidelines were
specifically intended to remove him as an eligible candidate.7
In addition to the new election guidelines, the Trustees also
"proposed a new Constitution which terminated George
Ross' position as full time salaried business agent." Ross'
Amended Complaint at P 38 (No. 98-629).

In July of 1998, Ross filed a second lawsuit against the
same defendants in state court (the "election case"). Ross
sought a declaration that he was an eligible candidate for
the upcoming election, and an injunction to prevent the
election from proceeding until his eligibility could be
determined. That suit was removed to federal court on
motion of the defendants, and the district court thereafter
refused to enjoin the election. Ross was not permitted to
_________________________________________________________________

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

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

                               4



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

In December of 1998, the defendants filed a motion for
summary judgment in the Trusteeship case. They argued
that Ross' claim for equitable relief had been rendered moot
by the election of new officers and the resulting dissolution
of the Trusteeship. Ross answered arguing that the crux of
the Trusteeship case was that the Trusteeship had been
imposed in bad faith to remove political opposition. He
insisted that all actions carried out pursuant to the
Trusteeship were void. In February of 1999, Ross filed an
amended complaint in the Trusteeship case alleging
continuing harm and asking the district court to:

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

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

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

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

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

The district court consolidated Ross' two lawsuits and the
matter was scheduled for trial. Essentially, Ross contended
that he was harmed in two respects as a result of the
improper continuation of the Trusteeship. He alleged that
he had suffered damages as a result of being declared

                                5



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

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

The district court rejected Ross' law of the case argument
stating: "the issue of whether Title III supports Ross's
individual requests for relief has not yet been adjudicated
by the Court." Ross v. Hotel Employees and Restaurant
Employees Int'l Union, No. 98-1131 slip. op. at 12 (W.D. Pa.
Jan. 12, 2000). The court noted that Ross had not asserted
a timeliness challenge, and concluded that it had broad
discretion to entertain the defendants' motion for summary
judgment even though the issues had been submitted to a
jury. Id. at 6 (citing In re Sch. Asbestos Litig., 977 F.2d 764,
794 (3d Cir. 1992)). The court ultimately held that interests
of judicial economy counseled in favor of adjudicating the
summary judgment motion and granted summary
judgment in favor of the defendants and against Ross.

In doing so, the court relied on the text and legislative
history of the LMRDA as well as relevant precedent from
other circuit courts of appeals. The court held that Ross'
claims were all individual in nature and that Title III of the

                                6



LMRDA does not allow plaintiffs to seek individual relief. Id.
at 12-13, 16-17. Rather, the district court concluded that
Title III was intended to protect local unions, not their
individual members. Id. at 14. The court relied in large part
upon Gesink v. Grand Lodge, International Ass'n of
Machinists and Aerospace Workers, 831 F.2d 214 (10th Cir.
1987), in stating:

       the purposes listed in Title III as justifying the creation
       of a trusteeship have nothing to do with protecting
       union members' or employees' individual rights; rather,
       they seek to protect locals from `corruption' or
       `financial malpractice' of their agents and to ensure
       that such agents comply with their obligations and
       `otherwise carry [ ] out the legitimate objects of ' the
       union.

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

       Plaintiff 's requests for lost wages, medical insurance
       coverage, and other `out of pocket costs' associated
       with his termination as business agent, as well as his
       request for reinstatement, are asserted on his own
       behalf and for his own benefit, not for that of Local 57.

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

8. The district court also discussed Ross' repeated attempts to invalidate
the August 1998 election despite its previous ruling that Ross was
barred from seeking to effect a change in the election. The district court
reaffirmed its previous ruling that it lacked jurisdiction to entertain
this
part of Ross' claim. Ross v. Hotel Employees and Restaurant Employees
Int'l Union, No. 98-1131 slip. op. at 7-8 (W.D. Pa. Jan. 12, 2000). The
court reasoned that Title IV of the LMRDA vests the Secretary of Labor
with exclusive jurisdiction over an individual union member's post-
election suits regardless of when members first seek relief regarding
elections. See id. at 8-10 (citing Local No. 82, Furniture & Piano Moving,
Furniture Store Drivers, Helpers, Warehousemen & Packers v. Crowley,
467 U.S. 526, 541, 544 (1984)). Post-election relief to invalidate
elections
or seek new elections must first be pursued with the Secretary of Labor.
Id. at 11 n. 2. Therefore, Ross "[was] barred from pursuing claims
requiring an invalidation of the August 1998 election." Id. at 10-11.

                               7



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

II. Jurisdiction and Standard of Review

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

III. Discussion

Ross' appeal presents two questions for resolution. First,
we must determine if Ross has waived the arguments he
makes now because he did not raise those arguments in
opposition to the defendants' summary judgment motion in
the district court. If we address the merits of his claim we
must decide the very important question of whether Title III
of the LMRDA affords Ross a cause of action under the
circumstances of this case.

A. Waiver

As noted above, Ross' opposition to the defendants'
motion for summary judgment in the district court was
limited to his contention that the law of the case precluded
summary judgment because the merits of his claim had
been submitted to a jury. The district court disagreed with
his position, and that ruling has not been appealed. On
appeal, for the first time, he argues the merits of the
defendants' claim that Title III of the LMRDA does not
provide a cause of action for individual relief.

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

9. Ross does not now challenge the district court's denial of his
assertion
that the law of the case precluded entry of summary judgment, or the
district court's refusal to overturn the union's election.

                               8



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

       This prudential policy seeks to insure that litigants
       have every opportunity to present their evidence in the
       forum designed to resolve factual disputes. By
       requiring parties to present all their legal issues to the
       district court as well, we preserve the hierarchical
       nature of the federal courts and encourage ultimate
       settlement before appeal. It also prevents surprise on
       appeal and gives the appellate court the benefit of the
       legal analysis of the trial court. It is however not a
       jurisdictional bar, and the statement of policy permits
       exceptions in appropriate cases.

Id. (citations omitted).

The case at bar has important implications for the field
of labor law, and raises a question of first impression in
this circuit. Moreover, the procedural posture also raises
procedural questions that we have not previously
addressed. As noted above, the summary judgment motion
was made after a jury deadlocked and a mistrial was
declared. However, because of that unique procedural
posture, the defendants can hardly claim at this late date
that Ross' assertion of a private cause of action under Title
III is a surprise, or that Ross' position prejudices them.
They have obviously assumed that he had a private cause
of action under Title III throughout the course of this
litigation including trial. Although Ross failed to respond to
the merits of defendants' arguments in the summary
judgment motion, the district court was afforded the rare
advantage of a fully developed record in analyzing the
issues raised by the motion for summary judgment.
Inasmuch as the defendants are not unfairly prejudiced by
the lateness of Ross' arguments, and given the importance
of the issues raised by this grant of summary judgment, we
think it appropriate to resolve this appeal on the merits,
and not upon the procedural grounds that the defendants
argue in the alternative.

Moreover, the district court did not err in considering a
motion for summary judgment after a mistrial. If there are

                                9



no issues of material fact and a party is entitled to
judgment as a matter of law, judgment may be awarded at
any time, even after trial, under Rule 56 or under Rule 50.
There was no reason to require the court to go through the
procedural calisthenics of a second trial merely because the
motion for judgment was brought after the mistrial.
Accordingly, we will consider the merits of the arguments
before us.

B. Title III of the LMRDA

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

10. Title III of the LMRDA provides in relevant part:

 S 302 Purposes for which a trusteeship may be established

Trusteeships shall be established and administered by a labor
organization over a subordinate body only in accordance with the
constitution and bylaws of the organization which has assumed
trusteeship over the subordinate body and for the purpose of correcting
corruption or financial malpractice, assuring the performance of
collective bargaining agreements or other duties of bargaining
representative, restoring democratic procedures, or otherwise carrying
out the legitimate objects of such labor organization.

S 303 Unlawful acts relating to labor organization under
trusteeship

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

S 304 Enforcement

(a) Upon the written complaint of any member or subordinate body of
a labor organization alleging that such organization has violated the
provisions of this title (except section 301) the Secretary shall
investigate
the complaint and if the Secretary finds probable cause to believe that
such violation has occurred and has not been remedied he shall, without
disclosing the identity of the complainant, bring a civil action in any

                                10



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

        `Trusteeships shall be established and administered
        . . . for the purpose of [1] correcting corruption or
        financial malpractice, [2] assuring the performance of
        collective bargaining agreements or other duties of a
        bargaining representative, [3] restoring democratic
        procedures, [4] or otherwise carrying out the legitimate
        objects of such labor organization.

73 Stat. 519 S 302, 29 U.S.C. S 462. Specifying proper
purposes protects the local union organization and its
membership as a whole from the misuse of the trusteeship
_________________________________________________________________

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

* * *

(c) In any proceeding pursuant to this section a trusteeship established
by a labor organization in conformity with the procedural requirements
of its constitution and bylaws and authorized or ratified after a fair
hearing . . . shall be presumed valid for a period of eighteen months from
the date of its establishment and shall not be subject to attack during
such period except upon clear and convincing proof that the trusteeship
was not established or maintained in good faith for a purpose allowable
under section 302. After the expiration of eighteen months the
trusteeship shall be presumed invalid in any such proceeding and its
discontinuance shall be decreed unless the labor organization shall show
by clear and convincing proof that the continuation of the trusteeship is
necessary for a purpose allowable under section 302. In the latter event
the court may dismiss the complaint or retain jurisdiction of the cause
on such conditions and for such period as it deems appropriate.

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

                               11



power. Title III provides that a trusteeship is"presumed
valid for a period of eighteen months . . . and shall not be
subject to attack during such period except upon clear and
convincing proof that the trusteeship was not established
or maintained in good faith for a purpose allowable under
section 302." 73 Stat. 519 S 304(c), 29 U.S.C. S 464(c). The
provision also states: "[a]ny member or subordinate body of
a labor organization affected by a violation of this title may
bring a civil action in any district court . . . for such relief
(including injunctions) as may be appropriate." 73 Stat. 519
S 304(a), 29 U.S.C. S 464(a). It is this provision that
provides the proverbial "rub" here, as we must determine if
the individual relief that Ross is seeking is "appropriate"
under Title III.11

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

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

11. At oral argument, and vaguely in his brief, Ross argued that we
should read the enforcement section of Title III in light of S 401 which
is
the introduction section of the LMRDA and discusses the purposes and
policy of the LMRDA. S 401(b) discusses protecting the rights of
employees and the public in general:

       The Congress further finds, from recent investigations in the labor
       and management fields, that there have been a number of instances
       of breach of trust, corruption, disregard of the rights of
individual
       employees, and other failures to observe high standards of
       responsibility and ethical conduct which require further and
       supplementary legislation that will afford necessary protection of
the
       rights and interests of employees and the public generally as they
       relate to the activities of labor organizations, employers, labor
       relations consultants, and their officers and representatives.

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

                                12



Collinsgru v. Palmyra Bd. of Educ., 161 F.3d 225, 233 (3d
Cir. 1998). The intricate legislative history of the LMRDA
has caused the Supreme Court to note that:

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

       `The legislation contains more than its share of
       problems for judicial interpretation because much of
       the bill was written on the floor of the Senate or
       House of Representatives and because many sections
       contain calculated ambiguities or political
       compromises essential to secure a majority.
       Consequently, in resolving them the courts would be
       well advised to seek out the underlying rationale
       without placing great emphasis upon close
       construction of the words.'

Wirtz, 389 U.S. at 468 n.6 (citing Cox, Internal Affairs of
Labor Unions Under the Labor Reform Act of 1959, 58
Mich. L. Rev. 819, 852 (1960)). Thus the practice of
interpreting ambiguous statutory language in light of its
legislative history is of particular value in the context of the
LMRDA. Although we do not consider the word
"appropriate" an ambiguous term in and of itself, to the
extent that the text of the LMRDA does not adequately
define the term in context, and thereby definitively
establish what remedies are "appropriate" under Title III,
we are compelled to consult the statute's legislative history.
See West Virginia Univ. Hospital, Inc. v. Casey, 499 U.S. 83,
98 (1991) (it is appropriate to resort to legislative history to
determine the meaning of ambiguous legislation). The
legislative history of Title III confirms our analysis.

C. The Legislative History of Title III

In 1957, the Select Committee on Improper Activities in
the Labor Management Field of the United States Senate,
more commonly known as the "McClellan Committee,"
began investigating and gathering findings on the internal
affairs of labor unions. Note, Landrum-Griffin and the
Trusteeship Imbroglio, 71 Yale L.J. 1460, 1473 (1962)
(hereinafter "Note, Trusteeship Imbroglio"). The McClellan
Committee's findings "exposed the details of the sad state of

                               13



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

       The Labor-Management Reporting and Disclosure Act
       of 1959 was the product of congressional concern with
       widespread abuses of power by union leadership. The
       relevant provisions of the Act had a history tracing
       back more than two decades in the evolution of the
       statutes relating to labor unions. Tensions between
       union leaders and the rank-and-file members and
       allegations of union wrongdoing led to extended
       congressional inquiry. As originally introduced, the
       legislation focused on disclosure requirements and the
       regulation of union trusteeships and elections.
       However, various amendments were adopted, all aimed
       at enlarged protection for members of unions
       paralleling certain rights guaranteed by the Federal
       Constitution; not surprisingly, these amendments--
       ultimately enacted as Title I of the Act, 29 U.S.C.
       SS 411-415--were introduced under the title of "Bill of
       Rights of Members of Labor Organizations." The
       amendments placed emphasis on the rights of union
       members to freedom of expression without fear of
       sanctions by the union, which in many instances could
       mean loss of union membership and in turn loss of
       livelihood. Such protection was necessary to further
       the Act's primary objective of ensuring that unions
       would be democratically governed and responsive to
       the will of their memberships.

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

Title III of the LMRDA, the trusteeship title, first emerged
as Title II12 of the Kennedy-Ives Bill passed by the Senate in
_________________________________________________________________

12. A review of the Senate Report no. 187, April 14, 1959 [To accompany
S. 1555] in the Section-By-Section Analysis reveals that Title I was
originally the reporting provision and Title II was the trusteeship
provision. U.S. Code Cong. & Admin. News at 2352 - 2362. Later, Title
I became the Bill of Rights provision, Title II became the reporting
provision and Title III became the trusteeship provision. 73 Stat. 519 S1
et seq., 29 U.S.C. S 401 et seq.

                                14



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

       in some instances trusteeships have been used as a
       means of consolidating the power of corrupt union
       officers, plundering and dissipating the resources of
       local unions, and preventing the growth of competing
       political elements within the organization.

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

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

       The Committee on Labor and Public Welfare therefore
       concurs in the select committee's recommendation that
                               15



       there should be a `limitation on the right of
       internationals to place local unions in trusteeship.'

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

The Kennedy-Ervin Bill underwent seven months of
rewriting and debate involving several amendments. Note,
Trusteeship Imbroglio, at 1475. A major alteration was the
addition of a "Bill of Rights of Members of Labor
Organizations." Id. The Bill of Rights"was adopted as an
amendment on the Senate floor by `legislators[who] feared
that the [original] bill did not go far enough because it did
not provide general protection to union members who spoke
out against union leadership.' " Lynn, 488 U.S. at 352
(quoting Steelworkers v. Sadlowski, 457 U.S. 102 (1982)).
Those legislators believed this Bill of Rights was needed to
further protect the rank-and-file members and reinforce the
other provisions of the LMRDA, including the trusteeship
provision.

In these debates, Senator McClellan stated:

       I do not believe that racketeering, corruption, abuse of
       power and other improper practices on the part of
       some labor organizations can be, or will ever be,
       prevented until and unless the Congress of the United
       States has the wisdom and the courage to enact laws
       prescribing minimum standards of democratic process
       and conduct for the administration of internal union
       affairs. I mean by that, . . . that the Congress should
       prescribe and define by law what the rights of union
       members are, place in them by democratic process the
       power to secure those rights and protect them in their
       efforts to do so from reprisals of any kind from their
       would-be exploiters, manipulators, and bosses. Without
       such protection, other provisions of law may be of little
       benefit and meaningless. Without such protection in
       the exercise of his legitimate rights the records of our
       committee's investigations show over and over again
       that a rank-and-file member dare not risk any
       opposition to a corrupt or autocratic leadership. If he
       does so, he may be beaten, his family threatened, his
       property destroyed or damaged, and he may be forced
       out of his job--all of these can happen and have
       happened.

                               16
       Having these things in mind, . . . I introduced S. 1137
       to provide a bill of rights for working people--for union
       members.

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

The Bill of Rights was therefore "[d]esigned to guarantee
every member equal voting rights, rights of free speech and
assembly, and a right to sue." Lynn, 488 U.S. at 352
(quoting Steelworkers v. Sadlowski, 457 U.S. 102 (1982)).

Between January and September of 1959, when the
LMRDA was finally enacted, most of the debate concerned
the new additions and amendments, "while the trusteeship
title glided quietly through the labyrinthine process from
bill to bill with little change and less discussion." See Lynn,
488 U.S. at 357 n.8 (quoting Note, Trusteeship Imbroglio at
1475). Neither the discussions on the House nor Senate
floors focused on the relationship between Title I and Title
III. Id. Senator Dodd, however, did propose an amendment
to Title III which sparked some debate. Specifically, Dodd
wanted the trusteeship provisions to go even further in
order to prevent the manipulation of the trusteeship power
and the resulting harm that had been so well documented
by the McClellan Committee. Note, Trusteeship Imbroglio at
1475-76. Dodd's amendment created a presumption that
trusteeships in place longer than thirty days were invalid
unless the international union, at a hearing before the
Secretary of Labor, could present clear and convincing
proof of a proper purpose. Id. Senator Dodd explained the
rationale for his proposed amendment as follows:

       The [Kennedy-Ervin] bill now provides a procedure
       under which an individual union member may appeal.
       The point is that the full burden of proof is placed
       upon such union member, who thus would have to
       fight the international or the national union; and in
       that fight the limited, sparse, or -- most often--
       nonexistent power of the individual union member
       would be pitted against the tremendous prestige and
       power of the national or the international union. . . .

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

                               17



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

Dodd then focused on the importance of protecting the
local membership given organized crime's entanglement
with certain elements of the labor movement as unearthed
during the congressional inquiry. He explained:

        In the past, as we know from the revelations of the
        McClellan committee, and as we know from litigation,
        the imposition of trusteeships was one of the greatest
        abuses of the Teamsters Union. My recollection is that
        more than 120 trusteeships were imposed by that
        union some of them for more than 20 years. Think of
        it. For more than 20 years, the local members, the
        wage earners, were without any say at all with respect
        to their local unions.

* * *

        All I seek by the amendment is to give the members of
        a local union an opportunity to say to someone, a
        judge, or other competent authority, `This trusteeship
        should not be imposed on us.'

Id. (emphasis added).

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

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

13. Part of Ervin's discussion specifically explained that the bill "takes
care of the main reason why trusteeships are sometimes arbitrarily
imposed, namely, to enable international officers to control the selection
of delegates to international conventions. The bill contains a specific
provision to the effect that the local union in trusteeship may be
represented at an international convention only by delegates elected by
a secret ballot of the members of the local." 105 Cong. Rec. 6677.

                                18



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

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

When the Kennedy-Ervin Bill went to the House, the
enforcement section of the trusteeship title was changed.14
The Kennedy-Ervin Bill did not grant individual union
members standing to bring suit in federal court. The
Committee Report accompanying the bill explained that
"section 206 makes clear that Federal suits under Title II
are possible only upon suit initiated by the Secretary of
Labor." U.S. Code Cong. & Admin. News 1959, p. 2363. The
enforcement section which Congress passed, and which is
still in force, allows the local union itself or an individual
union member to bring suit in federal court. See 73 Stat.
519 S, 29 U.S.C. S 464.

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

14. The enforcement provision currently in force is S 304 of the LMRDA,
29 U.S.C. S 464.

15. Congressman Teller stated:

        HR 8342 is a substantial improvement over S. 1555 (the Kennedy-
        Ervin bill), the Senate-passed labor management reform bill which
        our committee used as a basis for its deliberations.. . . Reducing
        the excessive powers of the Secretary of Labor, as we did in our
        committee bill H.R. 8342, is in line with our traditions which
favor

                                 19



This expansive discussion of legislative history does not
conclusively establish what type of relief is "appropriate" for
an individual union member who is also an appointed
official. However, it places that inquiry into its proper
context and guides our interpretation of the relevant
statutory language. In interpreting Title III in the context of
the discussions in Congress and the findings of the
McClellan Committee, we conclude that the amendment
authorizing individual law suits was intended to underscore
the concerns surrounding trusteeships under Title III. By
allowing individual members to bring suit rather than the
Secretary, Congress intended more avenues for enforcement
of the trusteeship provision, not more types of relief.

Nothing in the legislative history of Title III suggests that
Congress contemplated an individual bringing suit for
compensatory damages arising from the loss of an
appointed union position under that title. The statutory
scheme of the LMRDA strongly suggests that the individual
rights that Ross seeks to vindicate must be redressed under
Title I. As noted above, that provision was initially referred
to as the "workers' bill of rights" when it was introduced.
Title III, which came first, was meant to protect the
subordinate labor organization, and Title I was
subsequently added specifically to address the rights of
individual union members. Accordingly, we conclude from
the legislative history that the relief that Ross seeks is not
"appropriate" under Title III. An examination of the relevant
cases confirms this conclusion.

D. Applicable Case Law

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

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

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

                                20



Finnegan, Leu defeated Brown in an election for president
of Local 20 of the International Brotherhood of the
Teamsters. Id. at 433. Brown had been openly supported by
a group of the local's business agents including Finnegan.
Id. After Leu assumed office, he discharged all of the
business agents who had supported Brown pursuant to a
provision in the local's bylaws that purported to give the
president the "authority to appoint, . . and discharge the
Union's business agents." Id. at 433. The business agents
then sued in district court contending that their
termination violated Title I of the LMRDA.16 Id.
The Court began its analysis by reviewing the legislative
history of the LMRDA, and concluding that "the Act's
primary objective [was] ensuring that unions would be
democratically governed and responsive to the will of their
memberships." Id. The Court noted that"[i]t is readily
apparent from the legislative history of Title I, that it was
rank-and-file union members--not union officers or
employees, as such--whom Congress sought to protect." Id.
at 437. The plaintiffs were members of the union with
protected speech rights, as well as salaried employees of
the union. Accordingly, the Court had to determine whether
the rights afforded plaintiffs as members of the union
"immunized [them] from discharge at the pleasure of the
president from their positions as appointed union
employees." Id.

The Court concluded that the plaintiffs' Title I rights had
not been violated because plaintiffs had not been precluded
from exercising any of those rights, and the LMRDA did not
protect appointed officers who "backed the wrong horse."
This was true even if it meant that those officers were
"forced to `choose between their rights of free expression
. . . and their jobs.' " Id. (citations omitted). The Court
explained its rejection of plaintiffs' Title I claim as follows:

       For whatever limits Title I places on a union's authority
       to utilize dismissal from union office as `part of a
_________________________________________________________________

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

                               21



       purposeful and deliberate attempt . . . to suppress
       dissent within the union,' (citations omitted), it does
       not restrict the freedom of an elected union leader to
       choose a staff whose views are compatible with his
       own. Indeed, neither the language nor legislative
       history of the Act suggest that it was intended to
       address the issue of union patronage. To the contrary,
       the Act's overriding objective was to ensure that unions
       would be democratically governed, and responsive to
       the will of the union membership as expressed in open,
       periodic elections.

Id. at 441.

Here, Ross also held the "dual status" of union member
and appointed union officer. Defendants argue that because
Ross was employed during the entire time the trusteeship
was in place, Finnegan precludes him from asserting a
claim "arising from the decision of the newly elected officers
of Local 57 not to retain him as a business agent after the
trusteeship ended." Defendants' Br. at 9. Defendants are
correct that the newly elected officers of Local 57 were free
"to choose a staff whose views are compatible with [their]
own." Finnegan, 456 U.S. at 441.

However, the analysis does not end there because, unlike
in Finnegan, we are here concerned with a trusteeship that
was created pursuant to Title III. Ross argues he is entitled
to compensation because the continuation of the
Trusteeship was in bad faith and for the purpose of
removing him as political opposition within Local 57 in
violation of S 304 of Title III.17 The Supreme Court
_________________________________________________________________

17. There is some confusion about Ross' position regarding whether the
Trusteeship was appropriately created and/or maintained. Defendants
quote Ross as having conceded that the Trusteeship"was appropriate
and was imposed for a proper purpose." See Defendants' Br. at 2.
However, we do not interpret Ross' testimony as a concession. Rather, he
was asked if he was aware of the serious charges facing the officers of
the union and whether such serious charges justify establishing a
Trusteeship. He responded, "[w]ell, according to the International, that's
the way they feel. But, I think we should have been spoke [sic] to first.
. . . I do believe that is a valid reason for an International to come in
and
take over." App. at 250. Ross did not necessarily concede, however, that

                                22



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

There, the trustee who had been appointed to run the
local asked Lynn, who was an elected business
representative of Local 75, to support a proposed dues
increase. However, rather than support the increase, Lynn
insisted that expenditures be reduced and he organized the
opposition to the proposal to raise union dues. Id. at 349-
50. Five days after the proposal was defeated, the trustee
informed Lynn that he was being removed from his elected
position of business agent. Id. at 350. Lynn exhausted his
administrative remedies within the union, and then filed
suit under Title I alleging that his removal constituted
illegal retaliation in violation of the statutory right of free
speech set forth in S 101(a)(2) of the LMRDA. 73 Stat. 519
S 101(a)(2), 29 U.S.C. S 411(a)(2).
The Court began its analysis by noting similarities
between Lynn's plight, and the plight of the plaintiffs in
Finnegan. The Court recalled that the Title I rights of the
plaintiffs in Finnegan had been chilled"albeit indirectly,
because [they] had been forced to choose between their
rights and their jobs." Id., at 354. Nevertheless, the
Finnegan plaintiffs had not recovered because the choice
that they were left with did not violate the purpose of the
LMRDA.

       Whether such interference with Title I rights gives rise
       to a cause of action under S 102 must be judged by
       reference to the LMRDA's basic objective: "to ensure
       that unions [are] democratically governed, and
       responsive to the will of the union membership as
       expressed in open, periodic elections." In Finnegan, this
       goal was furthered when the newly elected union
       president discharged the appointed staff of the ousted
_________________________________________________________________

the actual motivation for taking over was the justification asserted by
the
International. Moreover, even if he may have conceded the Trusteeship
was established for a legitimate purpose, he clearly insists that it was
maintained for an improper purpose, and that he has a cause of action
under Title III as a result.

                               23



       incumbent. Indeed, the basis for the Finnegan holding
       was the recognition that the newly elected president's
       victory might be rendered meaningless if a disloyal staff
       were able to thwart the implementation of his
       programs. While such patronage-related discharges
       had some chilling effect on the free speech rights of the
       business agents, we found this concern outweighed by
       the need to vindicate the democratic choice made by
       the union electorate.

488 U.S. at 354-5 (citations omitted). However, the Court
stressed that Lynn's situation was quite different for he was
removed from an elected position, and his removal thereby
had a direct impact on the democratic governance of the
union itself.

       The consequences of the removal of an elected official
       are much different. To begin with, when an elected
       official like Lynn is removed from his post, the union
       members are denied the representative of their choice.
       Indeed, Lynn's removal deprived the membership of his
       leadership, knowledge, and advice at a critical time for
       the Local. His removal, therefore, hardly was an
       integral part of ensuring a union administration's
       responsiveness to the mandate of the union election.

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

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

                                24



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

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

Id. at 356-57.

Title I was enacted to protect rank-and-file members of
the union and to insure union democracy by protecting the
independence of elected union officials even though the free
speech rights of the union's membership are implicated.
This is true whether or not a trusteeship is involved. Ross
tries to avail himself of the holding in Lynn by arguing that
his removal has an impact on the democratic governance of
the Local.19 He seems to be arguing that Title III was the
_________________________________________________________________

18. Ross' brief states:

         As a result of the improper use of a trusteeship, Ross suffered
direct
         or proximate damages. But for the imposition of the trusteeship,
         Ross still would be employed. Since the trusteeship was intended
for
         an improper purpose and maintained in bad faith, the Defendants
         violated the LMRDA. Ross, as a member of Local 57, was "affected"
         by the violation of the LMRDA. The damages requested were
         "appropriate" to make him whole.

Ross' Brief at 23 (emphasis added).

19. Ross' brief states:

         The actions of the International Union will have also a chilling
affect
         on all members of Local 57. If the International Union succeeds in
         destroying Ross and leaving him with no recourse, then other
         members will refrain from opposing the International Union. On the
         other hand, if the International Union is required to defend Ross'
         action and to compensate him for its misuse of the trusteeship,
then

                                 25



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

As the Supreme Court found in the Title I setting,
nothing in the legislative history of Title III establishes that
Congress intended to protect appointed officers like Ross
under the circumstances here. Ross' reliance upon Title III
may well be an attempt to circumvent the holding in
Finnegan. But for the existence of the Trusteeship and the
fact that Ross brought this suit under Title III, Finnegan
would be more precisely on point. Ross' claim that he was
victimized by an appointed Trustee rather than an elected
officer does not alter the fact that the rights he seeks to
vindicate are Title I rights, not Title III rights. Accordingly,
we believe our analysis here must still be guided by
Finnegan, and that is confirmed by our reading of Gesink v.
_________________________________________________________________

       the International Union will think twice before using a trusteeship
       as a means to harm one of its members. In this respect, Ross'
       actions benefit all members and inure to the benefit of the
       `subordinate body of a labor organization' in addition to himself.

Ross' brief at 23 (emphasis added).

                               26



Grand Lodge, International Ass'n of Machinists and
Aerospace Workers, 831 F.2d 214, 216 (10th Cir. 1987).

In Gesink, the International appointed a trustee who
subsequently filed charges against Gesink, a business
representative for the local. Id. at 215. Gesink was
thereafter removed from his office by the president of the
International, and he was barred from holding any office for
five years. Id. Gesink sued for damages under Title I and
Title III. His claim for damages under Title III was based
upon his assertion that he was entitled to relief for
deprivation of his salary and other emoluments of his office
during the Grand Lodge supervision of the District Lodge.
He argued that the supervision violated Title III of the
LMRDA. Id. at 216. The Court dismissed his Title III claim
stating:

       In light of the legislative history of Title III of the
       LMRDA and the Supreme Court's ruling in Finnegan ,
       this Court finds that there is no cause of action for
       individual damages under SS 462 and 464. Any right of
       action pursuant to those sections belongs to the
       subordinate union, while a union member may sue to
       enforce the act's provisions, such suits should be
       limited to relief on behalf of the union. As the Supreme
       Court concluded in the Title I context, this Court
       concludes that nothing in the legislative history of Title
       III indicates an intent to protect the positions of union
       officers and employees.
Id., at 216. Similarly, in Pope v. Office and Professional
Employees International Union, the court stated:"Title III of
the LMRDA is designed to protect a subordinate union as
a whole, whereas Title I . . . is designed to protect the
individual rights of the members of a union." 74 F.3d 1492,
1504, (6th Cir. 1996).

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

                                27



op. at 16-17 (W.D. Pa. Oct. 4, 1999). His efforts to now
argue that his relief will benefit the union by vindicating its
members' free speech rights is little more than a belated
attempt to import considerations that govern Title I relief
into a suit brought only under Title III.

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

The district court held that the International had, in fact,
established a trusteeship. That trusteeship was declared
invalid because the International had not complied with
IAM's own constitution and bylaws. Accordingly, the court
held that Harden did not have the authority to remove
Higgins, and Higgins was awarded back-pay and attorney's
fees. Id. The court of appeals affirmed that part of the
district court's opinion. However, the court of appeals
merely assumed that the requested individual relief was
"appropriate" under Title III.
We decline to embrace Higgins for several reasons.
Although the court there assumed that an individual right
of action exists, under Title III, it did not directly address
the issue. See Gesink, 831 F.2d at 216 (finding that the
Higgins court "apparently assumes there is an individual
right of action . . . but . . . does not discuss the issue"). It
never analyzed the legislative history that Finnegan and
Lynn instruct is so important to a proper inquiry. Moreover,
Higgins was decided before Finnegan and Lynn, and the
Higgins court therefore did not have the benefit of the

                               28



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

Ross also urges reliance on McDonald v. Oliver , 525 F.2d
1217 (5th Cir. 1976). In McDonald, new elections were held
after a trusteeship was established, but the International
invalidated the election results and refused to install the
new officers. Id. at 1222-23. The newly elected officers
brought suit under Titles I and III seeking to end the
trusteeship; and win installation as officers, and back-pay.
Id. The Secretary also brought an action under Titles III
and IV based on a finding by a Labor Department official
that the continuation of the trusteeship and the failure to
recognize the election violated Titles III and IV of the
LMRDA. Id. at 1224. The district court declared that the
election was valid, ordered the immediate installation of the
officers, and awarded back pay. Id. at 1225. The Court of
Appeals affirmed, reasoning that:

       [a]lthough the primary purpose of an individual's
       lawsuit is obviously to vindicate his own rights or
       facilitate his own candidacy, there can be little doubt
       that he renders a substantial service to the union as
       an institution and to his members individually in
       protecting local democratic processes through Titles I
       and III. The successful litigant dispels the "chill" cast
       upon the rights of others.

Id. at 1227. The court also concluded that Title III should
be "construed in light of the varius other provisions of the
LMRDA." Id. at 1229. The court recognized that the primary
purpose of the LMRDA is "not only to stop and prevent
outrageous conduct by thugs and gangsters but also to
stop lesser forms of objectionable conduct by those in
positions of trust and to protect democratic processes
within union organizations." Id. The court concluded by
finding that the international union was thwarting union
democracy in violation to the LMRDA.
Although McDonald suggests that a successful suit under
Title III confers benefits on the entire union membership,
the holding does not advance Ross' argument as much as
he would like because McDonald was also decided before
Finnegan and Lynn. Moreover, McDonald was elected and

                                29



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

Similarly, we find that Ross' reliance upon Pruitt v. United
Brotherhood of Carpenters and Joiners of America, 659 F.
Supp. 1511 (N.D. Ga. 1987), vacated on other gr'ds, 893
F.2d 1216 (11th Cir. 1990), is misplaced because Pruitt too
is distinguishable from the instant case. There, the court
was not asked to find a private cause of action for damages
under S304 of Title III. Rather, Pruitt sued under both Title
I and Title III alleging that an appointed trustee had
prevented him from assuming an elected position in
retaliation for the exercise of free speech. Id. at 1514. The
court discussed the statutory presumption of validity that
attaches to trusteeships under S 304 of Title III in inquiring
into whether the trusteeship in question had been imposed
for a proper purpose. Id. at 1517, 1520. The issue
addressed by the court was whether the "plaintiff 's Title III
claims fail as a matter of law under the clear and
convincing evidence standard [of S304]." Id. at 1519. The
court merely ruled that "a triable issue may exist as to
whether the trusteeship was maintained to block plaintiff
from assuming his elected position" Id. at 1520. More
importantly, Pruitt, unlike Ross, stated a Title I claim based
upon his assertion that the trusteeship had precluded him
from assuming an elected position. Id. at 1522.

Finally, Ross relies upon the decision of the Court of
Appeals for the Sixth Circuit in Pope v. Office and
Professional Employees International Union, 74 F.3d 1492
(6th Cir. 1996). Pope was an appointed business
representative of Local 268 of the Office and Professional
Employees International Union (OPEIU). Soon after his
appointment, he alleged wrongdoing and mismanagement
on the part of officers of Local 268. Id. at 1496. Support for
Pope's outspoken criticism of the Local's leadership soon
flourished, and he became a candidate for president of the
Local despite opposition of the OPEIU, and local board. Id.
at 1497. After one very chaotic meeting of the Local, the
OPEIU granted the local board's request, and imposed a
trusteeship to control Local 268 pending a hearing to
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determine its propriety. Id. at 1498. Thereafter, the union
held a hearing and determined that the trusteeship was
appropriate despite Pope's protestations to the contrary.
Shortly thereafter, Pope was fired, and his union
membership was withdrawn without notice or opportunity
to be heard. Id. at 1499. Pope was therefore ineligible to
run for president of the Local. Elections were held, a new
slate of officers was elected, and the trusteeship was
thereafter terminated. Id. at 1500. However, before the
trusteeship was terminated, Pope sued in district court.

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

OPEIU appealed claiming that the LMRDA is designed to
protect rank and file union members and not officers and
employees and that Pope therefore lacked standing as an
appointed employee. Id. at 1501. In resolving those issues,
the Court reconciled the jury's verdict with the holdings in
Finnegan, Lynn, and Gesink. The court also reconciled the
jury's verdict with the holding in Cehaich v. International,
UAW, 710 F.2d 234 (6th Cir. 1983), a case involving similar
facts decided subsequent to Finnegan. Cehaich and Pope
had both been appointed employees of local unions, but
Cehaich's "status as a member of the union did not change
after he was terminated from his appointed position. He
was not fined, suspended, expelled or disciplined." Pope, 74
F.3d at 1502. The court reasoned as follows:

       In Finnegan, the appointed officials of an ousted board
       were not protected by the LMRDA because union
       members elected a new board. In Lynn, the elected
       officials were protected because they had been elected
       by the union members. The purpose of ensuring
       democracy is furthered by allowing Pope a cause of
       action under the LMRDA. Pope was appointed a
       business representative by an elected local executive
       board. That board was not ousted as in Finnegan .

                               31



       Moreover, unlike Cehaich, Pope was expelled from
       union membership immediately after his termination
       from his position as business representative. Thus,
       Pope's case is clearly distinguishable from Cehaich.
       Pope is entitled to protection under the LMRDA
       because he was disciplined in a manner which affected
       his right to fully enjoy the rights and privileges of
       union membership.

Id. at 1503.

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

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

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

                               32



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

Accordingly, we conclude that the district court properly
determined that there was no genuine issue of material fact
and that, on the record before it, Ross' Title III claim failed
as a matter of law. The relief Ross seeks is simply not
"appropriate" within the meaning of Title III.

IV. Conclusion

For the reasons set forth herein, we conclude that the
district court did not err in granting summary judgment to
the defendants under Title III of the LMRDA and that order
will be affirmed.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

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