*3 CLARK, Bеfore TJOFLAT and Circuit services. Article XXI of the International Judges, *, and GOLDBERG Senior Circuit provides Constitution the Executive Judge. may suspend any Board officer who “fails * Irving Goldberg, Honorable L. U.S. Circuit tion. Circuit, Judge sitting by designa- for the Fifth President. A to, carry out the was removed as letter or refuses to adhere her, the decision instructions, explained decisions of the Dolan to remove directions or charges the Local Un- listing Board or of the various of which she
Local Executive Executive Coun- guilty. findings the International ion or of had been found charges misappropria cil.” guilt included the monthly pay of funds and failure to tion tenure, devel- During Dolan’s differences The Board removed her for the bal dues. her and а number oped between prohibited her elected term and her ance of the Executive Board. On members of holding any office before Feb from elected year than a after April little more ruary election, majority of the members her suspend Do- Executive Board voted Board’s ac appealed Executive In a letter post as President. lan from Ap the International Committee on tion to 16, 1976, Presi- April acting Board dated peals pursuant to Article XXIII of the Con Jacobus, defendant a named dent John unanimously de stitution. Committee *4 case, provided Dolan with a statement 5, appeal August nied her on 1976. suspension. The list the reasons for her misappropriation dеnial cited Dolan’s mentioned, alia, Dolan’s reasons inter dues, money pay stating her failure to and meeting Executive call a refusal to grounds that these two for removal made requested by req- properly Board when findings unnecessary to review the other members, her fail- uisite number of Board the Executive Board. The Committee specific di- to execute a number of ure amended the Board’s action as to Dolan’s Board, vari- the Executive and rectives of office, ineligibility though, holding to hold misappropriations of improper ous uses and ineligible occupy any appointive her 1. Plaintiff’s Exhibit union funds. See Six position in the union until restora elective later, amended the “notifi- dаys the Board eligibility by the International Exec tion of charges,” asserting an additional cation of appealed utive Council.2 Dolan then to the by funds and a failure misappropriation of Convention, denied her International monthly union dues. Do- pay Dolan to her evidence, however, appeal. There is no original charges via a responded lan to the by time of trial Dolan had made 22, April the two letter on and answered any attempt to have the International Exec April dated charges additional in a letter eligibility utive Council restore for of 29. fice. Commencing April the Board con hearing to decide whether Dolan ducted a PROCEDURE BELOW The hear removed from offiсe.1 should be complaint in district Dolan filed a federal days during which Dolan ing lasted three court, seeking temporary restraining or appear testify, and to cross was allowed mandatory injunction against the Board, der and by examine witnesses called Local, International and the as well as any to call union member witness. members of the Execu Board served as individual of the Executive Members that her name be May she tive Board.3 She asked hearing panel, and on Union, hearing pursuant and until the Internation- to Article XXI tional unless 1. The was held his Executive Council shall have restored al eligibility. the International Constitution. Section 12 of Article XIII 2. The Committee cited following complaint persоns as named the 3. The the Constitution: Jacobus, Vicki Lan- individual defendants: John Griffith, guilty, Triolo, Any Mary after dry Vicky Kathy Bailey, member who has been found trial, Minot, Erskine, Nower, any charges Stephen has member who Candace Don Redford, office, pursuant Flagg, and William been removed from Anna William Except procedures his Lo- and Lindner who of this Constitution or of Lindner. for Redford International, by-laws, ineligible all indi- to be a candi- were associated with the cal’s shall be election, any appointive were members of the Execu- vidual defendants date in or to hold position, Interna- tive Board. in his Local Union or in the special placed developed on the ballot for a election. between her and the Internation- addition, specifically, In she named Eastern as a de- between her and William al— sought damages from all de- Redford, fendant and Lindner and William Vice Presi- jurisdic- invoked the court’s fendants. She dents of the International. pursuant Title
tion Section “speech” second issue involved Do- LMRDA, amended, as 29 U.S.C. lan’s efforts on behalf of a flight male She based her federal claims on Sections attendant, Crain, Steven who was allegedly LMRDA, amended, 101 and 609 of struck captain. Eastern Dolan or- §§ complaint 411 and 529. The U.S.C. also investigation dered an of the matter and conspiracy contained a claim of civil and requested that internal action pendent claims of slander and breaсh of captain Borman, be taken Frank Presi- contract. dent of Eastern. Several hostile conversa- LMRDA claims fell under the Act’s tions ensued between Dolan and Borman. “equal rights” provision, 29 U.S.C. eventually When Crain filed criminal § 411(a)(1),4 speech” provision, its “free charges against the captain, provid- § 411(a)(2),5 process” U.S.C. and its “due ed information police that enabled to arrest provision, 411(a)(5).6 29 U.S.C. captain. The main the She drove from Day- Miami to allegations, theme of Dolan’s factual both tona to witness the arrest. The Executive trial, complaint Board, in her and at was that she initially while it supported Dolan’s was removed from office and rendered ine decision personally аggressively as- ligible discipline Crain, for reelection as for ex sist ultimately found itself in disa- pressing subjects her views on certain greement handling Dolan’s of the is- *5 speech union business. The for which she sue. suggested Certain members that she allegedly disciplined involved pushing three was things expressed too far and specific issues. fear might that she opening be the door to against a lawsuit the union.
The first wage issue concerned a freeze proposed by management the of Eastern. The third issue involved differences be- support asserts that because of her tween Dolan and the International and the freeze, of the “strong personal animosity” Executive Board regarding who would be 411(a)(1): 4. § from cоnduct that would interfere with its performance legal obliga- of its or contractual Equal Rights Every member of a labor or- — tions. ganization equal rights privileges shall have and organization within such to nominate candi- 411(a)(5) 6. dates, to vote in elections or referendums of the Safeguards against organization, improper disciplinary labor to attend meet- ac- ings, participate any organization and to tion. —No member in the deliberations and labor fined, voting upon may suspended, expelled, meetings, the business of such sub- or otherwise ject disciplined except regulations nonpayments by reasonable rules and in such of dues organization’s organization bylaws. any such constitution and or оfficer thereof un- (A) less such member has been served with 5. § specific (B) charges; given written a reasonable defense; (C) prepare time to his afforded a full assembly. Every Freedom of and — hearing. and fair any organization member of labor shall have She also asserted right 29 U.S.C. freely the basis to meet and assemble with other members; views, for relief. express any arguments, and to opinions; discipline by § 529—Prohibition express meetings on certain or and to views, organization. organization labor upon labor his candidates in organization any organiza- It shall be upon an election of unlawful the labor or labor tion, officer, steward, any any agent, properly meeting, shop or business befоre the sub- or ject organization's representative organization, other to the of a labor established reason- or fine, pertaining meetings: employee able suspend, expel, rules to the conduct of thereof to Provided, nothing discipline any That herein otherwise shall be con- of its members for ex- impair right ercising any organiza- strued to the of a labor to which he is entitled under adopt provisions tion to chapter. and enforce reasonable provisions rules as to of this The responsibility every member toward the of section applicable 412 of this title shall be in organization as an institution and to his refrain- the enforcement of this section. in as members of a team turned verdict favor of four of the
appointed with Eastern. negotiate defendants,8 new contracts against individual but found and the Executive Board The International Local, International, Redford, Jaco placed of the Board some members wanted bus, Triolo, Bailey, Flagg. Dolan was Dolan, asserting the team. that she had $35,000 compensatory damages. awarded in team, authority appoint exclusive jury punitive damages also awarded in on it members of the refused include $25,000 following amounts: Board. Executive International; $25,000 against Local; claim, free Do In addition to her $3,000 Jacobus, Bailey Flagg; charged hearing panel mem lan that the $1,000 against Triolo and Redford. guilty, her predisрosed bers were to find losing post-trial defendants then filed hearing procedures and therefore the vio judgment motions the alternative for provision, process lated LMRDA’s due verdict, notwithstanding the for a new tri § 411(a)(5). conspiracy Finally, the civil al, judgment, to alter or amend or to set count, she that certain officials of remittitur. The district court denied the International, members of the Execu motions; appeal follows. Board, tive and certain Eastern Airlines maliciously conspired deprive officials
her of her office.7 ISSUES ON APPEAL Following hearing, the district court Appellants press major arguments two application temporary for a denied Dolan’s opposition finding liability reached restraining preliminary order and mandato- allega below. The first concerns Dolan’s ry injunction. The court found that her speech provi tions under LMRDA’s free equitable claim for relief was barred sion, 411(a)(2), process provision, and due probability laches and that she had little § 411(a)(5). argument focuses on Do dropped success on the merits. Dolan then nonpayment lan’s admitted of union dues equitable claim for her relief and tried her period during for a of fourteen months damages jury. During case for before a Presidency. Citing provisions of the Inter trial, International, day the ten dealing national Constitution with dues re Local, and various individual defendants *6 quirements eligibility and to run for or hold moved for dirеcted verdicts four af- times: office,9 appellants argue elected union that statement, opening ter Dolan’s in the midst required the Constitution both the removal direct, testimony of Dolan’s on at the close imposition of Dolan from office and the of of her at close of all evidence. upon restrictions eligibility her future to in The court directed a verdict favor of short, In run. enforcement of the Eastern and in of the one favor individual any attempt Constitution rather than to defendant, Lindner, in named the slander punish Dolan’s that led to the ac plaintiff’s claim. The court submitted against Appellants tions taken her. em LMRDA claims and the related civil con- § spiracy jury. jury phasize proviso сlaim the re- in allowing to XIII, provides pertinent part: 7. The slander and breach of contract claims Article § 4 in part played Any standing little in Dolan's action. The district ineligi- in member bad shall be granted summary judgment court in favor of meetings, ble to attend union to be a candi- appellants on the breach of contract claim. The any position, date for or hold union office or court directed a verdict the defendant for any or to vote in union election or referen- slander Neither claim is before us on claim. dum, participate or otherwise in union af- appeal. fairs. XV, provides pertinent part: Article 3 in Lindner, Erskine, Griffith, and Minot. 8. eligible No member shall be for nomination XIII, any рertinent part: or election to office unless he shall have provides Article 3 in 9. good standing in his been continuous local Any pay member who fails to his dues for a (12) period for the twelve union of months particular day month on or before the 15th of immediately preceding nomination. standing. shall be in bad such month
739
Act,
adopt
implementing
union to
“reasonable rules”10 LMRDA.
In
Con
gress
court’s instruction to the
and note the trial
its
focused
efforts
two areas. Ti
rules,
regulations
jury that the union’s
tle IV of LMRDA reaches union election
proper.
binding
Appellants also
were
procedures,
financing,
campaign
distribu
protections provided in
point out that the
literature,
campaign
inspection
tion оf
§ 411(a)(5)
apply to a
disci
do not
member
lists,
dues,
membership
eligi
use of union
plined
nonpayment
for
of dues.11 Dolan bility
office,
of candidates for
and removal
presented
responds that she
evidence
IV,
for
officers
misconduct.12 Title
ongoing policy
trial that
had an
the Local
therefore, affects
relationship
a union’s
delin
notifying any member who was
I,
with
its
Title
whole.
quent
payments
taking
in the
before
dues
contrast, registers Congress’s concern with
that
action
member. The Lo
rights
of individual union members.
allegedly ignored
cal
that
re
Leu,
431, 437,
Finnegan v.
456 U.S.
102
gard
part
conspiracy
to Dolan as a
to
(1982).13
S.Ct.
L.Ed.2d
punish
protected
exercise of
for her
Congress
sys-
structured two different
speech.
tems
pаrts
of enforcement for these two
argument
Appellants’
for
second
reversal
provides
system
LMRDA. Title IV
centers on their contention that
judicial procedures,
administrative and
im-
“speech”
allegedly
for which
parting
the Secretary
of Labor a sub-
punished
her duties as
involved
union Pres-
stantial role
enforcement.
29 U.S.C.
See
Contending
applies
ident.
that
§ 464.
I
aggrieved
Title
allows an
union
only
pure “membership speech”
and not
member
take her complaint directly
relating
or conduct
to the duties
federal court. See 29
U.S.C.
officer, appellants urge
of a union
that
Underlying
Act,
both titles to the
how-
improper
trial court
ground
submitted
ever,
exists
broad
notion
unions
jury.
recovery
should bе democratized. See
v. Lo-
Wirtz
appellants’
argu-
We find merit in
second
Ass’n.,
cal
Glass Bottle Blowers
judgment
ment and
hold that the
470-71,
643, 647-48,
U.S.
88 S.Ct.
Thus,
appellants
reversed.
we
must be
(1968).
longstand-
L.Ed.2d 705
Given the
appellants’ argu-
need not
reach
and do not
place
of democratic
in this
ideals
coun-
dues,
concerning nonpayment
ment
nor
try’s political
legal history,
the sources
do we reach
by appellants
additional claims
generalized
desire to see democratic
damages
jury
awarded
principles at work in
unions are
labor
not
improper.
hard to understand. Democratic ideals
alone, though, do not account for the form
DISCUSSION
eventually
Exerting
LMRDA
took.
Spirit
A. The Dual
LMRDA
*7
of
countervailing
Congress’s
force to
desire to
1950’s,
legislate
In
congressional
democracy
the late
union
concern
was a more mod-
abusive,
ern,
established,
surfaced
oppressive
about
tactics
but
still well
employed by
leadership
against government
of some labor
interference with the
sparked passage
unions. This concern
of
internal affairs of unions. The Senate Re-
supra,
product
10. See
note
often
lation is
conflict
compromise
strongly
op-
between
held and
supra,
11. See
note 6.
views,
posed
proper
and its
construction fre-
quently requires
wording
consideration of its
12. See 29 U.S.C. 481.
background
legislative
of its
histo-
emphasis
congressional
13. Our
intent re
ry
light
general objeсtives
flects a concern articulated in
v. Local
Wirtz
Congress sought to achieve. The LMRDA is
153,
Ass’n., supra,
Glass Bottle Blowers
U.S.
389
exception.
no
468,
(1968):
at
port
provisions,
specifics
from the
policy.
flow
v.
Bhd. Boilermakers
movement
see International
strong independent
labor
A
institutions.
part of American
Hardeman,
243-248,
a vital
233,
91
401
S.Ct.
U.S.
by recent
shocking abuses revealed
(1971),
615-18,
and not
609,
L.Ed.2d 609
28
to a
have been confined
investigations
protections that
panopoíy of
from the
majority
overwhelming
few uniоns.
defend-
gives criminal
federal Constitution
run.
In
democratically
honestly and
are
Alliance
v. International
Curtis
ants.
evils, the
existing
remedies
providing
Stage Employees,
687 F.2d
Theatrical
un-
careful neither to
should be
Senate
Cir.1982);
Ritz v. O’Don-
(7th
1024,
1027
labor
self-government within the
dermine
nell,
731,
(D.C.Cir.1977).
Ac-
F.2d
735
566
unions
their
nor to weaken
movement
terms,
411(a)(5) does not
cording to its
representatives of
bargaining
role as
nonpayment of
discipline for
extend to
employees.
dues;
any protec-
guarantee
nor does
Sess.,
187,
Cong., 1st
5
86th
S.Rep. No.
removal of a union member
tions as far as
Admin.News,
(1959);
Cong, and
U.S.Code
employee of
post
an officer or
from his
as
v. Local
2322;
Hodgson
see also
2318,
pp.
Finnegan,
102
at 1871-72.
union.
S.Ct.
6799, United Steelworkers
Union
America,
333, 338-39,
91
U.S.
S.Ct.
403
Likewise,
speech provi-
LMRDA’s free
v.
(1971);
Wirtz
1841, 1845,
741
411(a)(2)
Rights
to
with a
Section
the
interfere
union’s intrа-manage-
B.
of
policy
personnel
Union
ment
Allega-
decisions.
Officers
tions that union
were
officials
forced to
claim that this
of non
Appellants
expression
choose between the
free
to
the critical
should be
consider
interference
jobs
and their
did not overcome the union’s
Urging
in
all
the instant case.
that
ation
maintaining
patronage
interest in
sys-
the
grounds
alleg
Dolan
three
tem
its
in interpreting
interest
with
punished
connected
es she
personnel
enforcing
in
by-
rules
the union
President, appellants
as Local
her duties
Furthermore,
laws.
the
heavily
Court
em-
§ 411(a)(2)
permitting
liability
that
argue
phasized
protection
Title I’s
of members’
significantly
with
interfere
the man
would
opposed
rights
rights.
tо officers’
They
agement of the union.
cite Finne
431, 102
supra, 456 U.S.
S.Ct.
72
gan,
This case differs
Finnegan,
from
of
proposition
for the
that
L.Ed.2d
such course, in that it
involves actions
is
the
interference
not warranted under
an
group
elected official
a
of elected
Act.
system
The patronage
officials.
ap-
pointments and
removals
not involved.
newly elected
Finnegan,
pres-
In
a
union
argues
that this fact makes the rea-
discharged
offi-
ident
a number
union
soning
Finnegan
irrelevant to her case.
appointed by
previous president.
cials
the
Admittedly,
the
held,
Finnegan,
Supreme
Supreme
alia,
Court
inter
emphasized
Court
consistency
discharges
give
did not
rise to an action
governance
411(а)(2).
democratic
the patronage
The Court stressed that
I,
system.
of an
rank
Ouster
elected official
under Title
“it was
and file union
unde-
niably poses
greater
a
potential
or employees,
members—not union officers
threat to
goal
sought
LMRDA’s broad
Congress
pro-
democratizing
as such—whom
to
un-
patronage
ions
do
tect.” Id.
S.Ct. at
and 1873. The
than
dismissals. Dolan’s
argument
protected
Act was not intended
address the
that her
issue
conduct
footnote,
In
patronage.
411(a)(2), however,
of union
a
ignores the time-
stated:
Court
provision
tested construction of the
as one
specific rights. Despite
that confers
virtually
think it
We
inconceivable
greater potential
gov-
threat to democratic
Congress
prohibited
long-
would have
removing
ernance of
standing
elected union offi-
practice
patronage
union
cial,
not,
danger
the increased
does
legislative
without
in the
it-
discussion
self,
allegations of
history of the
Had
transform
ouster
Act.
such a result
from
§ 411(a)(2)
contemplated,
office into
undoubtedly
infringe-
been
claim
would
ment
speech.
have encountered
substantial resistance.
Courts
Moreover, Congress likely
other circuits have
would have
reached
same con-
clusion,
express
made some
accommodation to
pre-Finnegan,
both
see Newman
employers
needs
appoint
of union
v. Local
Communications Workers
officials,
policymaking
America,
(2d
remove
Cir.1978),
570 F.2d
and post-Finnegan, see Adams-Lundy v.
(citations omitted).
Id.
S.Ct. at 1873.
Association
Flight At-
bylaws
The union
in Finnegan
relevant
of Professional
(5th
tendants,
Cir.1984).
Prohibiting seeking primary Dolan from reeleс reason behind denial of Do time, however, period for a directly tion disagree lan’s seek reelection was ability speak President, affected her as a member. ment with her views as ex Constitution, Under the International each istence of a concerning reasonable rule good standing union member in appli has the dues cannot cleanse its unreasonable right to run A upon be nominated and to for union cation. union cannot seize the coin importantly, officership office.19 More a member’s cidence of imagine [regarding 18. We can a situation where an offi- the three controverted issues] (even opposition management policy cer’s just exactly what wanted President of regarding for which the officer had saying carry Local 553 to be out her leadér- responsibility implement) might be so limited Brief, added.) ship (Emphasis Appellee’s role. qualified performance as not to affect p. 34. clearly officer’s duties. Such a did not situation fact, Dolan, exist in this case. asserts that XV. 19. Article supporters fighting her words” "felt that as a result of the deprivation the exer- retaliating unreasonable pretext of her free speech. rights as a cise of member union mem- ber. Despite substantial concern for *11 members, speech rights of we must
free REVERSED and REMANDED. against appellants. jury reverse the verdict ON PETITION FOR REHEARING that jury The instructions intimated PER CURIAM: § 411(a)(2) merely liability would exist Appellees petition contеnd on for rehear- upon finding appellants had removed that (11th Cir.1984), ing prior of our decision that speech Dolan from office in retaliation for appellants preserve failed to error on the is- freeze, wage relating to the the Crain con speech. sue of officer versus member We appointments negotiat troversy, and petitioners’ direct attention to volume 8 of application team.20 The of otherwise 9, Appeal Record on 70-73. the. rules, however, can con reasonable union petition rehearing for is § 411(a)(2) only stitute a violation when DENIED. retaliatory manner re exercised Thus, member, officer, gard speech. not
although that the un judge instructed controlling proper,21
ion’s rules were theory recovery
he submitted punish
assumed unreasonableness ing any type speech. The basic error FORT, Plaintiff-Appellant, H. Charles distinguish failure to below was the officer v. In the speech speech.22 from member ab finding inter sence of a that the union was EXPRESS, INC., al., et ROADWAY fering speech, there with Dolan’s member Defendants-Appellees. § 411(a)(2). liability no under can be See No. 82-8500. id. Appeals, United States Court We find that the district court allowed Eleventh Circuit. damages jury to assess based on theory liability. improper 12, Nov. 1984. jury’s general verdict was a Because one,23 judgment we reverse the its en
tirety proceedings and remand deter appellee damages
mine suffered whether that, judge appellants’ 20. objections charge instructed "You don't retaliate to the and their exеrcising speech. proposed free prop- That is the issue in instructions did not articulate a Transcript, p. theory liability, objection this case." 46. Vol. He framed er of § their jury charge issue to the liability as follows: to the of unconditional based on punishment "speech” preserves ..., plaintiff says improperly [T]he "I was 411(a)(2) liability appeal. issue for treated under Count Two because disci- me, International, plined the union and the jury punitive damages, 23. are, Because awarded not because of what their defenses but which the court’s made clear were instructions my right because I asserted of free count, only conspiracy available under the civil ways argued you.” that have been jury liability claim, we assume that the found under That is her because she asserted her Liability conspiracy this count. speech, guaranteed of free is un- upon allegations count could also have rested "They der the Act. have Landrum-Griffin dis- speech. judge’s retaliation for officer in- ciplined they say.” me and not- for the reasons following: structions contained the Id. at 48. plaintiff saying In this case the that what Transcript, p. 21. Vol. 42. about, happened, already you what I have told speech. is retaliation for her exercise of free Appellants specifically objected judge’s says conspired 22. She these defendants charge happen, . retaliation for officer her to have that to accom- 411(a)(2) liability. plish formed the basis for § that. Transcript, p. p. Transcript, See Vol. We find that while Vol. 53.