Adams-Lundy v. Association of Professional Flight Attendants

• Decision Date: 30 April 1984
• Docket Number: ADAMS-LUND,No. 84-1257,E,84-1257
• Citation: 731 F.2d 1154
• Parties: 116 L.R.R.M. (BNA) 2394, 101 Lab.Cas. P 11,031 Stulaine Barber, Sherri Capello, Lenny Aurigemma, Anne Moroh, Patty Bias, Suzanne Nash, Pedro Rivera, Gail Gatzert, Brian Hagerty, Becky Kroll, Karen Fuller, Patt A. Gibbs, Patty Roberts Smith, Lynda R. Oswald, Carolyn M. Montgomery, and Tamara Utens, Plaintiffs-Appellees, v. The ASSOCIATION OF PROFESSIONAL FLIGHT ATTENDANTS, Bruno Paluk, Cheryl Cornett, Michael Kelliher, Linda Fincher, Debbe Eiss, Arlene Le Winter, Debbie Anderson, Randy Edwards, Kathy Knopp, Phyllis Conrad, and Judy Ladislaw, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1154

731 F.2d 1154

116 L.R.R.M. (BNA) 2394, 101 Lab.Cas. P 11,031

Stu ADAMS-LUNDY, Elaine Barber, Sherri Capello, Lenny Aurigemma, Anne Moroh, Patty Bias, Suzanne Nash, Pedro Rivera, Gail Gatzert, Brian Hagerty, Becky Kroll, Karen Fuller, Patt A. Gibbs, Patty Roberts Smith, Lynda R. Oswald Carolyn M. Montgomery, and Tamara Utens, Plaintiffs-Appellees, v. The ASSOCIATION OF PROFESSIONAL FLIGHT ATTENDANTS, Bruno Paluk, Cheryl Cornett, Michael Kelliher, Linda Fincher Debbe Eiss, Arlene Le Winter, Debbie Anderson, Randy Edwards, Kathy Knopp, Phyllis Conrad, and Judy Ladislaw Defendants-Appellants.

No. 84-1257.

United States Court of Appeals Fifth Circuit.

April 30, 1984.

Hal K. Gillespie, Dallas, Tex., for Assn. of Professional Flight attendants.

Eric D. Ryan, Dallas, Tex., for Bruno Paluk, et al.

Joann Peters, Dallas, Tex., Carin Ann Clauss, Madison, Wis., for plaintiffs-appellees.

Appeals from the United States District Court for the Northern District of Texas.

Before JOHNSON, HIGGINBOTHAM and DAVIS, Circuit Judges.

PATRICK E. HIGGINBOTHAM, Circuit Judge:

We review the granting of a preliminary injunction to eleven members of a union governing board who challenge their removal from office at the hands of the remaining board members. Because we conclude that plaintiffs have not established a likelihood of success on the merits of their claim under the Labor-Management Reporting and Disclosure Act, we vacate the preliminary injunction granted by the district court.

This controversy was precipitated by a struggle between two factions for control of the Association of Professional Flight Attendants, a labor union representing the flight attendants employed by American Airlines. For several years, the balance of power has shifted back and forth between these two factions, until the union's most recent election left one faction in control of eleven seats on the union's governing board and the other faction in control of nine seats including the presidency.

At a board meeting held March 3, 1984, the minority faction proposed several resolutions deemed a "litmus test" of loyalty to their union over a rival union some had assertedly supported. The members of the majority faction either voted against or abstained on these resolutions, and most were defeated. A member of the minority faction then filed charges against all board members failing to support certain of these resolutions, accusing them of disloyalty to the union. A motion was made to suspend the accused members from office during the pendency of these charges. When a roll call vote was taken on this resolution, those who stood thus accused of disloyalty were deemed to have a personal interest in the outcome of the vote and accordingly were not permitted to vote as board members. The motion carried, and nine members of the board thereby suspended eleven of their brethren.

Bypassing intra-union dispute resolution processes, the eleven promptly filed suit in U.S. District Court, seeking a temporary restraining order and preliminary injunction to prevent the nine from exercising their putative control over the union's affairs. Plaintiffs charged that their suspension from union office violated the Labor-Management Reporting and Disclosure Act, 29 U.S.C. Sec. 401 et seq., but the specific exchange of charges and defenses need not be detailed here. The district court granted a preliminary injunction, finding that plaintiffs had established a likelihood that they would prevail on the merits, and that the balance of harms, the irreparability of harm, and the public interest likewise supported the granting of the requested relief. Defendants appeal on several grounds, only one of which we need reach.

I

The primary objective of the LMRDA is that of "ensuring that unions would be democratically governed and responsive to the will of their memberships." Finnegan v. Leu, 456 U.S. 431, 102 S.Ct. 1867, 1870, 72 L.Ed.2d 239 (1982). Rank and file union members are granted rights under the Act to protect them from abuses of power by the union leadership. Union leaders, per se, are not themselves a protected class under this Act, except that they, too, may not be deprived of the basic rights attending on union membership. Id. 102 S.Ct. at 1871. We emphasize, therefore, that the plaintiffs here have not been denied any basic membership rights; they are still members in good standing, possessed of the right to vote, to speak out, and to run for union office.

II

Under sections 101(a)(1) and (a)(2) of the LMRDA, 29 U.S.C. Secs. 411(a)(1) & (a)(2), members of labor organizations have the right to vote in union elections and to express independent opinions on matters of concern to the union. Section 101(a)(5) of the Act provides in turn that no member may be "fined, suspended, expelled, or otherwise disciplined" without certain procedural protections. Section 609 of the Act, 29 U.S.C. Sec. 529, likewise forbids a labor organization, its officers, or agents to "fine, suspend, expel, or otherwise discipline any of its members for exercising any right to which he is entitled under [the Act]." For some years, courts debated whether removal from union office was a form of "discipline" proscribed by the Act. Courts evidently agreed that removal from office was not comprehended by Sec. 101(a)(5), but, though Sec. 609 employs essentially identical language, some courts concluded from context that the latter section was broader in scope and could comprehend removal from union office. See Grand Lodge of the Int'l Assn. of Machinists v. King, 335 F.2d 340, 344 (9th Cir.), cert. denied, 379 U.S. 920, 85 S.Ct. 274, 13 L.Ed.2d 334 (1964). This view was rejected by the Supreme Court in Finnegan v. Leu, 102 S.Ct. at 1872 n. 9.

In Finnegan, the Court held that the LMRDA provided no relief for a union business agent who had been fired from his appointed position by a newly-elected union president whose candidacy the business agent had opposed. See also Wambles v. Int'l Bhd. of Teamsters, etc., 488 F.2d 888 (5th Cir.1974). The Supreme Court determined that the Act's consistent references to the rights of "members" of labor organizations indicated that Sec. 101(a)(5) and Sec. 609 protect only the rights of membership per se, and that a union officer who is removed from office but not deprived of membership in the union has suffered no loss cognizable as "discipline" proscribed by these sections of the Act. Plaintiffs here concede that they have no claims arising under Secs. 101(a)(5) and 609.

III

There is, however, another statutory section under which LMRDA claims may be brought, and this is the section relied upon by these plaintiffs. Section 102 of the Act, 29 U.S.C. Sec. 412, provides a right of action to "[a]ny person whose rights secured by the provisions of this title have been infringed by any violation of this title." Plaintiffs contend that an individual may have his Sec. 101 rights of equal voting rights and freedom of speech "infringed" even if he has suffered no "discipline" cognizable under other sections of the Act. More specifically, plaintiffs charge that their removal from union office does constitute such an infringement.

The Supreme Court acknowledged in Finnegan that a litigant might be able to maintain an action under Sec. 102 without stating a violation of Sec. 609. 102 S.Ct. at 1872. The question, therefore, is whether a suspended union officer has suffered the "infringement" of "rights secured" by the Act.

The plaintiffs in Finnegan were appointed business agents, described by the Court as the president's "staff" and "agents ... to carry out his policies." 102 S.Ct. at 1873. In light of this situation, the Court saw no need to determine what circumstances, if any, would give rise to a claim under Sec. 102 without violating Sec. 609. "[W]hatever limits Title I placed on a union's authority to utilize dismissal from union office as 'part of a purposeful and deliberate attempt to suppress dissent within the union,' " said the Court, citing Schonfeld v. Penza, 477 F.2d 899, 904 (2d Cir.1973), "it does not restrict the freedom of an elected union leader to choose a staff whose views are compatible with his own." 102 S.Ct. at 1873. Thus, on the limited ground that permitting an elected union president to name ideologically compatible persons to appointed policymaking positions furthers rather than confounds the LMRDA's goal of union democracy, the Court held that there had been no violation of the Act. In a footnote, however, the Court left open the question "whether a different result might obtain in a case involving nonpolicymaking and nonconfidential employees." Id. n. 11.

Our task today is to fill one of the gaps deliberately left by the Court in Finnegan. We must determine whether the suspension of an elected union officer can give rise to a claim under Secs. 101 and 102. On several occasions we have recognized the general proposition that Sec. 101 "does not include actions for reinstatement to union office as distinguished from union membership." Nelms v. United Assn. of Journeymen & Apprentices of Plumbing, 405 F.2d 715, 717 (5th Cir.1968); Fulton Lodge No. 2 of Int'l Assn. of Machinists v. Nix, 415 F.2d 212, 217 (5th Cir.1969), cert. denied, 406 U.S. 946, 92 S.Ct. 2044, 32 L.Ed.2d 332 (1972); Sewell v. Grand Lodge of Int'l Assn. of Machinists, 445 F.2d 545, 550-51 n. 21 (5th Cir.1971), cert. denied, 404 U.S. 1024, 92 S.Ct. 674, 30 L.Ed.2d 674 (1972). These decisions, however, have been limited somewhat by our opinion in Miller v. Holden, 535 F.2d 912 (5th Cir.1976), where we declared that Sec. 102 "must provide a remedy for retaliation against a member's exercise of free speech even if he is not punished in his capacity as a member." Id. at 917 (emphasis added).

In Miller, we held that a plaintiff who alleged that he had been deprived of employment as a union officer in retaliation for supporting an unsuccessful candidate for union office...