Keene v. International Union of Operating Engineers, Local 624, AFL-CIO, AFL-CI

• Decision Date: 27 March 1978
• Docket Number: No. 76-1997,R,AFL-CI,76-1997
• Citation: 569 F.2d 1375
• Parties: 97 L.R.R.M. (BNA) 3215, 83 Lab.Cas. P 10,475 Alfred E. KEENE, Plaintiff-Appellee Cross-Appellant, v. INTERNATIONAL UNION OF OPERATING ENGINEERS, LOCAL 624,H. Byrd and Stanley Byrd, Sr., Defendants-Appellants Cross-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1375

569 F.2d 1375

97 L.R.R.M. (BNA) 3215, 83 Lab.Cas. P 10,475

Alfred E. KEENE, Plaintiff-Appellee Cross-Appellant, v. INTERNATIONAL UNION OF OPERATING ENGINEERS, LOCAL 624 AFL-CIO, R. H. Byrd and Stanley Byrd, Sr. Defendants-Appellants Cross-Appellees.

No. 76-1997.

United States Court of Appeals Fifth Circuit.

March 27, 1978.

C. T. Sykes, Jr., Gulfport, Miss., for plaintiff-appellee cross-appellant.

Lawrence W. Rabb, Meridian, Miss., for Greater Miss. Life Bldg Thomas M. Hendricks, Jr., Meridian, Miss., for defendants-appellants cross-appellees.

Appeals from the United States District Court for the Southern District of Mississippi.

Before TUTTLE, CLARK, and RONEY, Circuit Judges.

CHARLES CLARK, Circuit Judge:

The defendants, Local 624 of the International Union of Operating Engineers, R. H. Byrd, business agent of Local 624, and Stanley Byrd, an assistant business agent, appeal the judgment entered by the district court following a jury trial. The jury awarded compensatory and punitive damages to the plaintiff, Alfred E. Keene, a member of Local 624, for defendants' violation of rights guaranteed him by Section 411 of the Labor-Management Reporting and Disclosure Act of 1959. ¹ The defendants challenge the judgment of the district court on these grounds: (1) improper divisional venue, (2) failure of Keene to exhaust internal union remedies, (3) preemption of the cause of action by the National Labor Relations Board, (4) lack of Section 412 jurisdiction because of the insufficiency of the evidence to show a violation of Section 411 rights, (5) error in finding union officials personally liable for damages, and (6) improper computation of damages. Keene cross-appeals from the district court's order requiring a remittitur. Finding all challenges without merit, we affirm the final judgment of the district court.

Keene, a resident of Clarke County, Mississippi, has been a member of Local 624 since 1957. In August 1970, he ran for vice president and for auditor of Local 624 on a slate with Boyce Andrews, who ran for business agent. Keene lost the race for vice president but was elected auditor. In a court-ordered second election, Keene lost both of his races and the defendant R. H. Byrd defeated Andrews for the position of business agent. R. H. Byrd appointed his brother, the defendant Stanley Byrd, an assistant business agent of Local 624. Keene's complaint alleged that the Byrds improperly used their positions in Local 624 to seek revenge for Keene's political opposition.

Based upon a series of agreements with employers in the building and construction trades, Local 624 operates a hiring hall through which it refers union members to work. Union members who wish to be referred to a job place their names on out-of-work lists maintained in Gulfport and Jackson. Keene charges that since January 1972, Local 624 and the Byrds have deliberately and maliciously boycotted him by refusing to give him any bona fide assignment to work. Keene alleged that, although he properly entered his name on the lists in Gulfport and in Jackson, he received only three calls prior to the date he filed this lawsuit, September 12, 1973. The union allegedly made those three calls in a manner calculated to insure that he would have no genuine opportunity to secure the job offered. Keene complained that frequently he found his name stricken from the out-of-work lists, although under union procedures his name should have remained on the lists until the hiring hall referred him to work. At trial Keene introduced evidence that the Byrds had made statements indicating their intent to "starve him out" in retribution for his exercise of union internal civil and political rights protected by Section 411. After Keene entered a formal complaint with Local 624, the Executive Board held a hearing. The union did not produce the hiring hall records despite a written request from Keene's attorney, whom union officials barred from the hearing. The Executive Board failed to grant Keene any relief. Benny Splain, president of Local 624, ignored Keene's subsequent letter requesting further proceedings within the union.

Keene alleged that the defendants' boycott injured him in the amount of $25,000 and that the wanton, willful, and malicious nature of the acts warranted punitive damages in the amount of $100,000 including attorneys' fees. ² The jury awarded $25,000 actual damages and $37,500 punitive damages. The district judge ordered a remittitur to the amount of $10,000 actual damages and $15,000 punitive damages, which Keene accepted under protest. When the defendants appealed, Keene cross-appealed to reinstate the jury verdict.

The defendants contend that we must overturn the district court's judgment because divisional venue could not be laid in the Eastern Division of the Southern District of Mississippi. Section 412 of the Labor-Management Reporting and Disclosure Act sets forth the requirements for district venue, but does not specifically mention divisional venue. ³ Defendants assert that the general divisional venue statute, 28 U.S.C.A. § 1393, therefore must govern. ⁴ Under Section 1393, venue would be improper in the Eastern Division, because Local 624 has its principal office in the Jackson Division and the Byrds live in the Southern Division. The union does not have an office in the Eastern Division.

Keene maintains that the general divisional venue statute, Section 1393, does not govern because Section 412 "otherwise provides" by setting forth standards for determining district venue. Keene asserts that Section 412 standards should govern divisional venue as well and that his suit falls within the exception in Section 1393. Therefore, venue could be laid where the cause of action arose, which Keene contends is the Eastern Division, where he was injured when the union failed to call him.

It is unnecessary to decide between these theories because the defendants have waived any objection to improper venue by their failure to object prior to trial. Unlike jurisdiction, venue can be waived. See Neirbo Co. v. Bethlehem Shipbuilding Corp., 308 U.S. 165, 168, 60 S.Ct. 153, 155, 84 L.Ed. 167 (1939). Before the district court, the defendants never questioned the propriety of venue. Quite to the contrary, their only pretrial motion directed toward venue rested on the assumption that venue was proper in the Eastern Division. Defendants filed a motion to transfer the case to the Southern Division which adopted the language of 28 U.S.C.A. § 1404:

That it would be in the best interest of the parties, witnesses, and in the interest of justice that this cause be transferred to the Southern District of the Southern Division (sic) of this Honorable Court.

By its nature, a Section 1404 motion affirms the propriety of venue in the forum where a party enters the motion, but seeks transfer to another allegedly more convenient forum where venue also is proper. The motion did not state or suggest an objection to the propriety of venue in the Eastern Division. The district court acted within its discretion in refusing to transfer the case under Section 1404, and defendants have waived any right to raise on appeal that the court sitting in the Eastern Division lacked divisional venue.

Defendants contend that Keene failed to exhaust his internal union remedies prior to filing suit in district court. The district court, responding to defendants' motion for judgment notwithstanding the verdict, held that the manner in which Local 624 conducted Keene's internal union hearing justified his conclusion that further processing of his complaint within the union would serve no purpose. We agree. Pursuant to Section 411 (a)(4), a union member "may be required to exhaust reasonable hearing procedures (but not to exceed a four-month lapse of time) within such organization, before instituting legal or administrative proceedings against such organizations or any officer thereof." Under NLRB v. Industrial Union of Marine and Shipbuilding Workers, 391 U.S. 418, 428, 88 S.Ct. 1717, 1724, 20 L.Ed.2d 706, 714 (1968), a court may consider whether a particular procedure was reasonable and entertain the complaint even though the procedures have not been exhausted. In the case at bar, the district court reasonably could have concluded that other avenues to relief within the union were abusively controlled by those whom Keene alleged were causing his injury so that these were not reasonable procedures which Keene had to exhaust prior to suit. ⁵ The union officials on the Executive Board had been Keene's political opponents. The exclusion of Keene's counsel from the initial Executive Board hearing and the refusal to allow witnesses or to produce the hiring hall lists at the core of Keene's complaint suggested that the defendants had little intention of seeking a just and reasonable accommodation. The union president deliberately ignored Keene's letter seeking further relief within the Union. Keene himself testified that during the closed-door meeting the Executive Committee made explicit the punitive purpose of the union's conduct toward him. The exhaustion requirement in Section 411(a)(4) does not include procedures which unreasonably promise only aggravation of rather than relief from an infringement upon Section 411 rights.

The defendants deny that the district court had jurisdiction to consider Keene's complaint under Section 412 because primary jurisdiction over Keene's dispute with Local 624 lay with the National Labor Relations Board. This contention clearly has no merit. International Brotherhood of Boilermakers v. Braswell, 388 F.2d 193, 195-97 (5th Cir.), cert. denied,391 U.S. 935, 88 S.Ct. 1848, 20 L.Ed.2d 854 (1968).

Defendants also contend Section 411 jurisdiction was lacking because the union had not subjected him to "other discipline" within the meaning of Section 411. In Miller v. Holden, 535 F.2d 912, 914-15 (5th Cir. 1976), this circuit defined...