Adamszewski v. Local Lodge 1487, Int. Ass'n of M. & A. Wkrs.

• Decision Date: 12 April 1974
• Docket Number: No. 73-1166.,73-1166.
• Citation: 496 F.2d 777
• Parties: R. J. ADAMSZEWSKI et al., Plaintiffs-Appellants, v. LOCAL LODGE 1487, INTERNATIONAL ASSOCIATION OF MACHINISTS AND AEROSPACE WORKERS, AFL-CIO, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

496 F.2d 777 (1974)

R. J. ADAMSZEWSKI et al., Plaintiffs-Appellants, v. LOCAL LODGE 1487, INTERNATIONAL ASSOCIATION OF MACHINISTS AND AEROSPACE WORKERS, AFL-CIO, et al., Defendants-Appellees.

No. 73-1166.

United States Court of Appeals, Seventh Circuit.

Argued January 18, 1974.

Decided April 12, 1974.

Rehearing Denied June 5, 1974.

COPYRIGHT MATERIAL OMITTED

Irving G. Swenson, Joseph J. Hasman, Chicago, Ill., for plaintiffs-appellants.

Jacob N. Gross, Chicago, Ill., for defendants-appellees.

Before SWYGERT, Chief Judge, PELL, Circuit Judge, and ESCHBACH, District Judge.^*

ESCHBACH, District Judge.

Plaintiffs-appellants have taken this appeal from a decision of the district court denying their motion for summary judgment and dismissing their action without prejudice. Plaintiffs-appellants argue that the district court was in error both in denying their motion and in dismissing the action. We agree with the district court and therefore will affirm.

The facts, as set forth in the district court's memorandum of decision, are not substantially disputed. Plaintiffs-appellants are employees of Northwest Airlines, Inc. (NWA) and members of the International Association of Machinists and Aerospace Workers, AFL-CIO (IAM). Plaintiffs-appellants brought this action against IAM's Local Lodge 1487 and its officers seeking to enjoin union disciplinary proceedings which had been instituted against plaintiffs-appellants for crossing the picket line of a sister union. Plaintiffs-appellants seek to represent themselves and a class consisting of all employees against whom such proceedings have been instituted. A preliminary injunction was issued to delay the disciplinary proceedings during the pendency of this action.

On July 8, 1970, the Brotherhood of Railway and Airline Clerks (BRAC) struck against NWA and established picket lines. Although IAM's collective bargaining agreement with NWA contained a no-strike provision¹, IAM nevertheless instructed its members, who were employees of NWA, not to cross BRAC's picket line. However, NWA ordered its employees back to work and plaintiffs-appellants complied with NWA's order, crossed the BRAC picket line and returned to work. The question of whether, in view of the no-strike provision, IAM had the right to instruct its members not to cross the BRAC picket line was referred to a System Board of Adjustment (SBA) by the Court of Appeals for the Eighth Circuit. Northwest Airlines, Inc. v. Int'l Ass'n of Machinists and Aerospace Workers, AFL-CIO, 422 F.2d 244 (8th Cir. 1970). The Board decided on December 14, 1970, that:

IAM, in light of the no-strike provisions of the bargaining agreement does not retain the right to instruct its members to honor the picket lines of a sister Union.

On December 8, 1970, shortly before the SBA handed down its decision, IAM and NWA negotiated a back to work agreement providing in paragraph VI that:

There will be no reprisals, recriminations, disciplinary actions, grievances or reprimands by either party against any employee represented by IAM because of any action or non-action during or arising from the strike.

Subsequently, despite the agreement of December 8, 1970, the union local notified plaintiffs-appellants that charges had been preferred against them for conduct unbecoming a union member, consisting of crossing the BRAC picket line, and ordered them to appear for trial on those charges. Plaintiffs-appellants thereupon filed this action to enjoin the disciplinary proceedings, relying upon the no-strike provision of the NWA-IAM collective bargaining agreement, the no-reprisal provision of the back to work agreement, and the decision of the System Board of Adjustment.

On January 26, 1972, an order was issued compelling the union and its officers to hold the disciplinary proceedings in abeyance until the final disposition of all issues in this case. The parties subsequently filed reciprocal motions for summary judgment. On December 14, 1972, the district court entered an order and memorandum of decision denying plaintiffs-appellants' motion for summary judgment and treated the defendants-appellees' motion for summary judgment as a motion to dismiss raising matters in abatement and dismissed the entire action without prejudice to plaintiffs-appellants' right to commence further actions. The basis for the district court's decision was that plaintiffs-appellants had violated the second proviso of Title 29, U.S.C. § 411(a)(4). The parties had previously signed and filed a stipulation with the court to the effect that NWA was financing plaintiffs-appellants' suit. The district court found that NWA was an interested employer within the meaning of the proviso and that the suit could not be maintained by plaintiffs-appellants while financed by NWA.

I.

The first question presented is whether the district court erred in its construction of the second proviso of Title 29, U.S.C. § 411(a)(4), in determining that NWA was an "interested employer." Appellant contends that one of the grounds for relief stated in the complaint is that the guarantee set forth in Title 29, U.S.C. § 411(a)(5), which provides that no union member can be disciplined unless he has been served with written specific charges and given a full hearing after a reasonable time within which to prepare his defense², was violated by appellees.

A.

Title 29, U.S.C. § 412, confers original jurisdiction on the district courts to hear controversies involving the guarantee set forth in section 411(a)(5). In order to safeguard the guarantees set out in 29 U.S.C. § 411-415, § 411(a)(4) prohibits labor unions from limiting the rights of their members to institute actions against the unions or their officers.³ However, the right to bring a suit against a union and its officers is qualified by two provisos. The first states:

Provided, That any such member may be required to exhaust reasonable hearing procedures ... within such organization, before instituting legal or administrative proceedings against such organizations or any officer thereof.

The district court held that plaintiffs-appellants were not required to exhaust union procedures. The court reasoned that such actions would be futile since no internal union remedies existed which were capable of giving plaintiffs-appellants the relief they were seeking since they sought not merely to prevent possible union punishment but sought to prevent the disciplinary hearings themselves. The appellees have not cross-appealed from the decision of the district court, and therefore the propriety of the decision is not properly before us on review.

B.

The principal issue in this appeal is whether NWA is an "interested employer" within the meaning of the second proviso of 29 U.S.C. § 411(a)(4). The second proviso states:

And provided further, That no interested employer or employer association shall directly or indirectly finance, encourage, or participate in, except as a party, any such action, proceeding, appearance, or petition.

Appellants argue that although NWA is financing the suit, it gains no legal, financial or business advantage from the suit but is merely asserting a moral responsibility toward its employees who lawfully crossed the BRAC picket line. Appellees in reply argue that NWA is motivated by a desire to lessen the representational strength of IAM as the collective bargaining representative of the NWA employees which IAM represents. Thus, we must determine what is meant by the term "interested employer" and then decide whether NWA is an "interested employer."

The second proviso of § 411(a)(4) has been construed in Farowitz v. Associated Musicians of Greater New York, 241 F. Supp. 895 (S.D.N.Y.1965). That court determined that the proviso must be strictly construed and that the language must be given a construction as consistent as possible with the policy of the statute to guarantee the right of union members to sue the union. The court decided that the employers, despite the fact that they had financed several suits against the union, were not "interested" within the meaning of the statute. The court stated that what was at stake was the plaintiff's livelihood as a musician and that the incidental propaganda benefit which would accrue to the employers did not rise to the level of an interest necessary to fall within the proviso.

The court focused on the statement of Representative Griffin regarding the purpose of the second proviso of § 411(a)(4):

The last proviso in Section 101(a)(4) was added to make sure that the interested employers do not take advantage of rights accorded union members by encouraging or financing harassing suits or proceedings brought by union members against their unions. The purpose of the proviso should be kept in mind and it should not be so narrowly construed as to impose unnecessary or unintended restrictions upon employers in relationship with their employees.

Cong.Rec.App. A 7915 (Sept. 10, 1959). It is a fair reading of the Farowitz opinion to say that the court narrowly construed the word "interested" and decided that in the context of the facts before it the employer was not "interested" and the suit was not a harassing suit.

The instant action is distinguishable from Farowitz as the district court correctly noted. Farowitz had been expelled from the union for publishing a bulletin contending that taxes imposed by the union on members were illegal. The dispute was clearly one solely between the union and its ex-member. Farowitz merely sought reinstatement in the union and damages. The question of the legality of the taxes imposed by the union was the subject of other suits in which the employers in question were parties. The instant action, although principally a dispute between the union and some of its members, has far greater implications. It involves not only questions relating to the no-strike provision of the collective bargaining agreement and an interpretation of that agreement by the...