Wood v. Dennis, 72-1182.

• Decision Date: 02 November 1973
• Docket Number: No. 72-1182.,72-1182.
• Citation: 489 F.2d 849
• Parties: J. M. WOOD, Jr., et al., Plaintiffs-Appellants, v. Charles Leslie DENNIS, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

489 F.2d 849 (1973)

J. M. WOOD, Jr., et al., Plaintiffs-Appellants, v. Charles Leslie DENNIS, Defendant-Appellee.

No. 72-1182.

United States Court of Appeals, Seventh Circuit

Argued September 13, 1972.

Reargued June 1, 1973.

Decided November 2, 1973.

Certiorari Denied March 4, 1974.

COPYRIGHT MATERIAL OMITTED

Warren C. Ingersoll, John J. Henely, Chicago, Ill., for plaintiffs-appellants.

Solomon I. Hirsh, Chicago, Ill., William J. Donlon, Rosemont, Ill., for defendant-appellee.

Before SWYGERT, Chief Judge, KNOCH, Senior Circuit Judge, and KILEY, FAIRCHILD, CUMMINGS, PELL, STEVENS, and SPRECHER, Circuit Judges.

Reargued en banc June 1, 1973.

Certiorari Denied March 4, 1974. See 94 S.Ct. 1490.

PELL, Circuit Judge.

Plaintiffs Wood, Bowers, and Lowry appeal from the dismissal of their complaint by the district court. The district court held that it lacked jurisdiction over the subject matter of the action under the Labor-Management Reporting and Disclosure Act of 1959, the Landrum-Griffin Act (29 U.S.C. § 401 et seq.), and that plaintiffs' membership rights in the union had not been violated. Further, the court found the complaint premature "because of plaintiffs' failure to invoke and exhaust required, reasonable, fair and adequate internal Union procedures and remedies."

The complaint contained four counts. All four counts relate to the removal of Lowry from his position as President of the Transportation-Communication Division (hereinafter "T-C Division") of the Brotherhood of Railway, Airline and Steamship Clerks, Freight Handlers, Express and Station Employees (hereinafter "BRAC") by defendant Dennis, the President of BRAC.

The allegations of the complaint indicate the following. Lowry, as President of the Transportation-Communication Employees Union, had negotiated a merger of that union with BRAC. Among the provisions of the merger agreement was one to the effect that the President of the T-C Division of BRAC would be elected independently by the Division's members and the Division "would continue to handle the affairs of the members of that Division on a basis almost completely the same as at present." Further, it was provided that the President of the T-C Division would be an International Vice President of BRAC and a member of the Executive Council and Finance Committee of BRAC. Lowry began to have disagreements with Dennis, the President of BRAC, as to the operation of the merger agreement. The complaint then alleges that by various acts, both direct and indirect, Dennis deprived Lowry of his duties and finally of his post entirely.

Count I of the complaint is brought by Wood and Bowers as members in good standing of the T-C Division of BRAC. They contend that the removal of the duly-elected President of the T-C Division constituted a violation of their membership rights protected by Section 101(a)(1) of the LMRDA, 29 U.S.C. § 411 (a)(1),¹ in that their voting rights had been nullified. Jurisdiction was invoked under Section 102 of the LMRDA, 29 U.S.C. § 412.²

In Count II, plaintiff Lowry contends that his removal from office was discipline for his exercise of his rights as a member of the union, in that he had been "expressing his views, arguments and opinions with regard to the rights of the members of the T-C Division of BRAC guaranteed to them under the terms of the aforesaid Merger Agreement; and because plaintiff advised defendant on or around May 23, 1971, that plaintiff intended to become a candidate for the position of International President of BRAC at the expiration of the defendant's current term of office in 1975." This activity on the part of the defendant was alleged to violate Sections 101(a)(2) and 609 of the Act, 29 U.S.C. §§ 411(a)(2), 529.³ Counts III and IV are pendent jurisdiction claims brought by Lowry for violation of the BRAC Constitution and malicious slander respectively. Inasmuch as we consider the issues presented by Count II to contain the most significance in the present appeal, as did the parties, we shall begin our analysis with that count.

The principal controversy between the parties is the question of how the language of Section 609 of the LMRDA should be construed. Plaintiff Lowry reads Section 609's prohibition "to fine, suspend, expel, or otherwise discipline any of its members for exercising any right to which he is entitled under the provisions of this Act" (emphasis added) as encompassing removal from a union office. Defendant Dennis contends that this court's construction of similar language in Section 101(a)(5), 29 U.S.C. § 411(a)(5),⁴ which excluded from its purview protection of the right to hold union office, Air Line Stewards and Stewardesses Association v. Transport Workers Union, 334 F.2d 805, 808 (7th Cir.1964), cert. denied, 379 U.S. 972, 85 S.Ct. 648, 13 L.Ed.2d 563 (1965), should be applied to the words "or otherwise discipline" in Section 609.

The gravamen of Count II of plaintiffs' complaint is the attempt to chill Lowry's Title I right of free speech and right to stand for office by the improper discipline of removing him from his union office. In our opinion, the claim of Count II does state a cause of action under the LMRDA. In reaching this conclusion, we join the numerous courts who have adopted the statutory interpretation enunciated in Grand Lodge of Int'l Ass'n of Machinists v. King, 335 F.2d 340 (9th Cir.1964), cert. denied, 379 U.S. 920, 85 S.Ct. 274, 13 L.Ed.2d 334.⁵ No point would be served by further extended exegesis on this subject as we regard Judge Browning's opinion for the Ninth Circuit to be an excellent analysis of the relevant legislative history.

Air Line Stewards, upon which Dennis relies, is clearly distinguishable, involving an issue not here present as to whether § 101(a)(5) precludes summary removal of a member from union office. Nevertheless, since the words "or otherwise discipline" were read by this court in Air Line Stewards as having a restricted meaning in § 101(a)(5) not including removal from union office, we initially find it necessary to consider the defendant's argument that the same words in another section, § 609 of the same statute, should perforce have the same meaning. This argument was presented to the court in King, and we agree with the Ninth Circuit that it is a plausible one. We also agree, however, with that court when it said, "but it is also common experience that identical words may be used in the same statute, or even in the same section of a statute, with quite different meanings. And when they are, it is the duty of the courts to give the words `the meaning which the Legislature intended they should have in each instance.' Atlantic Cleaners & Dyers, Inc. v. United States, 286 U.S. 427, 433, 52 S.Ct. 607, 609, 76 L.Ed. 1204 (1932)." 335 F.2d at 344-345. (Other citations in accord in footnote omitted.) To the same effect, see the dissenting opinion in Alberto-Culver Company v. Scherk, 484 F.2d 611 at 618 (7th Cir.1973).

The words of Mr. Justice Frankfurter are apposite: "Exact formulation of the issue before us is necessary to avoid inadvertent pronouncement on statutory language in one context when the same language may require separate consideration in other settings." Automatic Canteen Company v. Federal Trade Commission, 346 U.S. 61, 65, 73 S.Ct. 1017, 1020, 97 L.Ed. 1454 (1953).

The court in King, particularly noting the legislative gloss on § 101(a)(5), reached the same result with regard to that section as did this court in Air Line Stewards. The court then proceeded with an analysis of the different purposes and rationales of the two sections, which analysis we adopt without repeating it herein, and concluded that punishment of a member by removing him from office if the punishment was for the proper exercise of rights guaranteed under §§ 101(a)(1) and (2) was the subject of redress under the enforcement provision, Section 609. "Punishment for the exercise of these rights is prohibited by section 609 whether inflicted summarily or after a full panoply of procedural protections." King, supra, 335 F.2d at 345. As indicated in King, this result is consistent with the legislative history.

Defendant also relies on Sheridan v. United Brotherhood of Carpenters & Joiners of America, Local No. 626, 306 F.2d 152 (3d Cir.1962), which case the King court considered. As that court noted, 335 F.2d at 347 n. 31, Judge Kalodner's opinion in Sheridan was not joined in by the other two members of the panel. Judge Hastie concurred in the result upon a different ground and Judge McLaughlin dissented. Sheridan, therefore, represents the views of a single judge of the Third Circuit.

It is true the Third Circuit in Martire v. Laborers' Local Union 1058, 410 F.2d 32 (3d Cir.1969), cert. denied, 396 U.S. 903, 90 S.Ct. 216, 24 L.Ed.2d 179, stated that it adhered to the ruling of Sheridan; however, the opinion was written by Judge Kalodner and did find a limited nexus between the Act-guaranteed rights of membership and the holding of union office. The decision would accord the right to utilize the remedies of the Act to assert the right to hold office in the future but would find the right nonexistent where the member was removed from office. Finally, it is noted that insofar as the latter matter is concerned, the court's holding was that the plaintiff did not have a remedy under § 101(a)(5) by reason of his removal from office. As has already been indicated herein, there is no disagreement on that issue among the courts.

But what is equally significant is that Sheridan relies, in no small part, on the fact that the "overriding purpose of the Labor-Management Reporting and Disclosure Act was to insure to members of unions the right to self-government and union democracy." 306 F.2d at 158. Thus, Judge Kalodner emphasized that the business agent had been removed from office by vote of the membership of the union. In the present case, however, we have the elected representative of the T-C...