McLaughlin, C. J., Nealon, D. J., dissenting.
This appeal involves solely the question of whether counsel fees are allowable under Section 102 of the Labor-Management Reporting and Disclosure Act of 1959 (LMRDA), 73 Stat. 523 (1959), 29 U.S.C. § 412 (1964).
Appellant Robert Gartner was fined and suspended from Local 492 of the American Bakery and Confectionery Workers International Union, AFL-CIO, allegedly for protesting a denial of voting rights to union members. Gartner's appeal to the Union International was turned down and on June 24, 1963 he instituted this action under the Labor-Management Reporting and Disclosure Act of 1959. Aside from injunctive relief appellant sought counsel fees and other expenses incurred in pursuit of his rights under the LMRDA. The Court below found that the action taken by the union was in violation of 29 U.S.C.A. §§ 411(a)(2) and 529, Sections 101(a)(2) and 609 of the Act. Although a permanent injunction in favor of appellant was filed on April 18, 1966, Gartner's claim for money damages was rejected by the District Court. Discussing the findings of fact the District Judge concluded that counsel fees could not be awarded under Section 102. We believe that decision must be reversed.
Title I of the LMRDA is the so-called civil rights provision of the Act. These rights are those possessed by the rank and file union members and are enumerated in Section 101. Section 102 provides for civil enforcement in the event a person's rights under Title I have been infringed upon. Section 102 reads:
"Any person whose rights secured by the provisions of this subchapter have been infringed by any violation of this subchapter may bring a civil action in a district court of the United States for such relief (including injunctions) as may be appropriate. Any such action against a labor organization shall be brought in the district court of the United States for the district where the alleged violation occurred, or where the principal office of such labor organization is located."
The LMRDA originated with the reporting of the Kennedy-Ervin Bill to the Senate by the Committee on Labor and Public Welfare on April 14, 1959. However, that bill made no mention of a union member's bill of rights. The bill of rights along with the section pertaining to the civil enforcement of those rights was proposed as an amendment to the Kennedy-Ervin Bill by Senator McClellan. The enforcement section of that amendment provided:
"The Secretary, whenever it shall appear that any person has violated or is about to violate any of the provisions of this title, may bring an action in a district court or other court of the United States for such relief as may be appropriate including, but without limitation, injunctions to restrain any such violations and to compel compliance with this title. Any such action against a labor organization may be brought in the United States District Court for the District of Columbia or in the district court or other court of the United States where the violation occurred or is about to occur." Leg. Hist., Vol. II, p. 1102.
Those critical of the enforcement provision were concerned with the bureaucratic chaos that might result if the Secretary of Labor were required to initiate all complaints on behalf of aggrieved union members. Leg. Hist., Vol II, pp. 1111-1114. To dispel these fears an amendment was offered by Senator Kuchel of California giving the union member, not the Secretary of Labor, the right to seek relief in the federal courts. The Kuchel amendment became the version ultimately adopted by the Senate and states:
"Any person whose rights secured by the provisions of this title have been infringed may bring an action in a district court of the United States for such relief as may be appropriate. Any such action against a labor organization shall be brought in the United States district court for the district where the alleged violation occurred, or where the headquarters of such labor organization is located." Leg. Hist., Vol. II, p. 1221.
In the House of Representatives the Landrum-Griffin Reform Bill (H.R. 8400, Leg. Hist., Vol. I, p. 619) was introduced as a substitute for the Kennedy-Ervin Bill, but contained basically the same remedy for civil enforcement of the bill of rights. Leg. Hist. Vol. I, pp. 631, 632. Thereafter the only substantial alteration was the parenthetical insertion of the words "including injunctions" to insure that at least an injunction would be considered appropriate relief under Section 102.
The first case to rule on the propriety of counsel fees under Section 102 was Vars v. International Brotherhood of Boilermakers, 215 F. Supp. 943 (D. Conn. 1963), where the court found that such allowances were intentionally excluded by Congress. As indicative of the legislative ...