APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE ISTRICT OF NEW JERSEY.
Adams and Weis, Circuit Judges and Bloch,*fn* District Judge. Weis, Circuit Judge, concurring.
William J. Koenig, a dissident union member, filed suit against his union, Local 455, United Brotherhood of Carpenters and Joiners of America, its international, and numerous union officials. Koenig v. Clark, et al., No. 79-2209 (D. N.J., filed July 24, 1979). Koenig alleged the defendants violated his right to freedom of speech and assembly as protected by Title I, the bill of rights provision, of the Labor Management Reporting and Disclosure Act of 1959 (LMRDA), 29 U.S.C. § 411(a) (2). Subsequently, John J. Urichuck, another union member, filed suit under Title V of the LMRDA, 29 U.S.C. § 501(a), to prohibit the joint representation of the union and individual union officers and to prohibit union payment of the officers' counsel fees in the Koenig suit. The district court granted Urichuck's motion for summary judgment, and the union defendants have appealed. We reverse.
Koenig asserted in his complaint that certain retaliatory action was taken against him after he had expressed concern about the operation of the union's pension and welfare funds; questioned the procedure utilized in an attempt to adopt certain amendments to the union's by-laws; and sought financial information related to the union and some of its members. Two of the defendants, Koenig alleged, brought unfounded charges against him before the local. Other defendants wrote a letter to the international charging him with being a contractor in the year next preceding his election as vice-president of his local, a charge which resulted in his disqualification and ouster from office. Others willfully and maliciously failed to exercise the power and duties of their offices in investigating and reporting the results of their investigation of this charge. Others, he alleged, induced an employer to lay him off, and others improperly administered the union's work referral list, so that he received less job opportunities than he was entitled to.
All defendants were initially represented by a single attorney in the Koenig case and the union paid his fees.
One year after Koenig filed his complaint, this action was filed by another member of Local 455, claiming that the joint representation of the union and individual defendants violated Title V of the LMRDA. Title V provides at 29 U.S.C. § 501(a) that a union official must:
". . . hold its money and properties solely for the benefit of the organization and its members, . . . manage, invest and expend the same in accordance with its constitution and bylaws and any resolutions of the governing bodies thereunder . . . and . . . account to the organization for any profit received by him in whatever capacity in connection with transactions conducted by him or under his direction on behalf of the organization."
Section 501(b) provides that when any officer has violated his duties as proscribed in § 501(a), and the union fails to sue, an individual member of the union may sue on its behalf.
Plaintiff Urichuck sought an order prohibiting joint representation of the union and individual defendants, prohibiting the union from paying for the defense of their officials, directing an accounting by the officials of the benefit already bestowed on them by the union, and directing reimbursement by the officials of the union funds thus far expended.
On plaintiff's motion for summary judgment, the lower court ordered joint representation to cease, and further prohibited the union from paying counsel fees for the individual defendants. It reserved judgment on the question of whether the individual defendants must reimburse the union for the monies already expended on their account pending the outcome of the Koenig suit. The lower court reasoned that a union may pay its officers' legal fees only if the defense of the officers would be in the interest of the union. Because the defense of the union and the defense of the individuals could be different in Koenig, and because the union could be entitled to recovery against the officers if Koenig prevailed, the lower court concluded that "from the face of ...