OAKES, Circuit Judge:
The appeal here is from a preliminary injunction granted to restrain the ousting of a union official and the holding of an interim election.
These two cases, consolidated for trial and appeal, result from the infighting that has marked the politics of the New York painters union, District Council No. 9 (the District Council), a group of locals of the International Brotherhood of Painters and Allied Trades (the International). Suit was brought by the
The first case was brought by Frank Schonfeld, the Secretary-Treasurer (the chief executive officer of the District Council and the only official elected directly by the general membership), to restrain members of the Trial Board of the District Council and the President of the International from enforcing a decision of the Trial Board removing Schonfeld from office and declaring him ineligible for office for five years. Schonfeld has exhausted intra-union remedies by appeal to the General Executive Board (GEB) of the International. That appeal sustained the Trial Board's removal of Schonfeld from office and ordered an immediate interim election to fill Schonfeld's position but modified the Trial Board's penalty by making Schonfeld eligible to run in the regular election to be held in June of 1973. Immediately after the GEB decision the second case (hereinafter sometimes the "Schwartz action") was brought by rank and file members of locals affiliated with the District Council to restrain the International from carrying out the punishment for Schonfeld's alleged union crimes.
The court below granted preliminary injunctive relief on the basis that Schonfeld's removal and disqualification for re-election was an interference with the rights of members of the locals "to choose their own representatives," 29 U.S.C. § 401(a), "to nominate candidates," 29 U.S.C. § 411(a)(1), "to vote in elections," id., and "to express any views, arguments or opinions ...." 29
We commence by disagreeing with the court below in respect to jurisdiction of the Schwartz action insofar as it challenges Schonfeld's removal from office and ineligibility to run. Title IV of the LMRDA, 29 U.S.C. § 481 et seq., governs the election of union officers and requires that union members have "a reasonable opportunity . . . for the nomination of candidates . . . and . . . the right to vote for or otherwise support the candidate . . . of [their] choice." 29 U.S.C. § 481(e). The union member's remedy for Title IV violations, following exhaustion of intra-union remedies, is to file a complaint with the Secretary of Labor, 29 U.S.C. § 482(a), who in turn may then seek relief in the federal courts upon finding probable cause to believe Title IV has been violated. 29 U.S.C. § 482(b). Cf. Trbovich v. UMW, 404 U.S. 528, 92 S.Ct. 630, 30 L.Ed.2d 686 (1972) (intervention by union member in suit brought by Secretary). Here, however, the union members relying on Title I,
The Schwartz action is indistinguishable from Calhoon insofar as it challenges Schonfeld's removal from office. The exclusion of Schonfeld from eligibility for the by-election does not infringe the "equal right," i. e., the Title I right of District Council 9 members to nominate or elect since they personally are not discriminated against. They have the same right as any other union members to nominate any eligible candidate. If the order below in the Schwartz action were based solely upon Schonfeld's removal from office or ineligibility to run in the interim election, then we would be required to reverse it. But, as mentioned above, the Schwartz action plaintiffs have also alleged in their complaint that the District Council's removal of Schonfeld from office and the restrictions on his subsequent eligibility constitutes a form of intimidation of the membership and of their duly elected officers and amounts to reprisal for efforts by Schonfeld and others to advocate and implement changes in union structure and procedures. Moreover, these allegations are supplemented by those in the Schonfeld complaint that the charges against Schonfeld were pretextual, that they were brought for the purpose of suppressing opposition and dissent within the union, and that they were "an expression of an anti-democratic policy and practice pursued over the past twenty-years" which included a policy of "bringing charges or causing charges to be brought against those who exercise freedoms of speech, press, and assembly in their opposition." As we read these allegations, they raise the question whether the sanctions on Schonfeld in the peculiar context of the history of union factionalism presented here impede or infringe upon the free speech and association rights of union members protected by § 101(a)(2) of Title I of the LMRDA, 29 U.S.C. § 411(a)(2). See, e. g., Machinists Grand Lodge v. King, 335 F.2d 340, 343-347 (9th Cir.), cert. denied, 379 U.S. 920, 85 S.Ct. 274, 13 L.Ed.2d 334 (1964) (§ 101(a)(2) bars discharge of union officers for campaign activities); Salzhandler v. Caputo, 316 F.2d 445 (2d Cir.), cert. denied, 375 U.S. 946, 84 S.Ct. 344, 11 L.Ed.2d 275 (1963) (intra-union discipline of union member for alleged "libel" of New York painters' union official barred by § 101(a)(2)). When rights of free speech and of association — as opposed to the rights of voting and election — of union members are invaded by the actions of union officers, the requirement of initial appeal to the Secretary under Title IV is inapplicable. Navarro v. Gannon, 385 F.2d 512, 520 (2d Cir. 1967), cert. denied, 390 U.S. 989, 88 S.Ct. 1184, 19 L.Ed.2d 1294 (1968).
We by no means suggest, however, that the free speech rights of union members are threatened or infringed upon every time a political dispute occurs in a union and the dissident members interpret some action by union officials as a threat. We do not wish to lend credence to any suggestion that the mere appendage of free speech allegations to an election complaint is sufficient to take the case out of Title IV's requirements as interpreted by Calhoon. But federal courts need not necessarily wait to intervene until some sanction is directly imposed on union dissidents, for once suppressed "the democratic spirit" within a union "may not soon be revived."
The competing values between Title I rights and Title IV procedural requirements are best reconciled, in our opinion, by limiting initial federal court intervention to cases where union action abridging both Title I and Title IV can be fairly said, as a result of established union history or articulated policy, to be part of a purposeful and deliberate attempt by union officials to suppress dissent within the union. Cf. Navarro v. Gannon, supra, 385 F.2d at 520. We think that the allegations in the complaints here were sufficient to meet this test. Moreover, given the lengthy history of intra-District warfare over the years, see note 2 supra, these were not mere conclusory allegations and certainly had some basis in fact, as the court below found, albeit in qualified language. Thus, the district court had jurisdiction over the free speech aspects of the Schwartz action complaint.
Similarly, the district court had jurisdiction over Schonfeld's individual action. He too asserts a free speech claim under Title I which, as mentioned, is cognizable in federal court without an initial appeal to the Secretary of Labor. Furthermore, the district court had jurisdiction over Schonfeld's claim that restrictions on his future eligibility for office not imposed in accordance with the procedures specified in § 101(a)(5) of the LMRDA, 29 U.S.C. § 411(a)(5), violate his rights as a union member and are actionable under § 102 of the Act, 29 U.S.C. § 412. We take the view, along with the Third and the Seventh Circuits,
We next turn to the question whether the district court properly exercised its equitable discretion in granting a preliminary injunction.
True, the affirmance of the granting of the preliminary injunction may moot the question of the propriety of the ineligibility penalty. But assuming that ultimately the plaintiff members in the Schwartz case and Schonfeld do not prevail on their claims, there is nothing to prevent his removal at that time (assuming he has been re-elected in May so as to be in office), or the holding of a special election thereafter. In other words, the resolution of his controversy against Schonfeld would not prevent the ultimate obtaining of a last full pound of flesh from him if that is the goal still sought. Schonfeld continues to stand within the District Council's danger. Contrariwise, if Schonfeld prevails on the issues in one forum or the other or both, or if the rank and file union members who are plaintiffs in the Schwartz case prevail on their free speech and association claims, the fact that the pound of flesh has not here been taken will suit the occasion. We hold that the district court thus did not abuse its discretion in granting a preliminary injunction.
The judgment of the district court is affirmed. In view of an application by Schonfeld for a modification of the injunction which has been submitted to us but can be dealt with more appropriately by the district court, the mandate will issue forthwith.
29 U.S.C. § 411(a)(2).
29 U.S.C. § 411 (a)(5).
§ 101(a)(1), 29 U.S.C. § 411 (a)(1).