Allen v. INTERNATIONAL ALLIANCE OF THEATRICAL, ETC.

• Decision Date: 23 October 1964
• Docket Number: No. 20648.,20648.
• Citation: 338 F.2d 309
• Parties: D. R. ALLEN, Appellant, v. INTERNATIONAL ALLIANCE OF THEATRICAL, STAGE EMPLOYEES AND MOVING PICTURE MACHINE OPERATORS OF the UNITED STATES AND CANADA, AFL-CIO, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

338 F.2d 309 (1964)

D. R. ALLEN, Appellant, v. INTERNATIONAL ALLIANCE OF THEATRICAL, STAGE EMPLOYEES AND MOVING PICTURE MACHINE OPERATORS OF the UNITED STATES AND CANADA, AFL-CIO, Appellee.

No. 20648.

United States Court of Appeals Fifth Circuit.

October 23, 1964.

C. V. Stelzelmuller, Birmingham, Ala., Moore, Thomas, Taliaferro, Forman & Burr, Birmingham, Ala., of counsel for appellant.

Frank B. Murdoch, Philadelphia, Pa., Erle Pettus, Birmingham, Ala., Bancroft D. Haviland, Schnader, Harrison, Segal & Lewis, Philadelphia, Pa., Rives, Peterson, Pettus & Conway, Birmingham, Ala., for appellee.

Before RIVES, JONES, and WISDOM, Circuit Judges.

WISDOM, Circuit Judge.

In Anniston, Alabama, a small, tightly closed local union of motion picture operators sought to enforce its closed shop policy by harassing the plaintiff into quitting his job as a projectionist in a drive-in theatre. The plaintiff was a member at large of the parent union. Several times he had tried to join the Local but its exclusive membership turned him down. When the stubborn plaintiff refused to quit his job, the Local filed charges with the International that the plaintiff was in violation of a union rule compelling him, as a non-member of the Local, to leave the Local's jurisdiction when ordered to do so. The International obliged by expelling the plaintiff from its membership at large. That is the gist of it. Here are the details.

D. R. Allen, the plaintiff-appellant, brings this action under the Labor-Management Reporting and Disclosure Act of 1959 (the Landrum-Griffin Act), 29 U.S. C. §§ 411(a) (5) and 412.¹ The defendants are the International Alliance of Theatrical Stage Employees and Motion Picture Machine Operators of the United States and Canada, AFL-CIO and its Anniston, Alabama, affiliate, Local 506, which has a collective bargaining agreement with Allen's employer. Since October 9, 1958, Allen has worked for the Midway Drive-In Theatre in Anniston. The complaint alleges that the International wrongfully expelled Allen from its membership at large and that both unions harassed him by attempting to force him to leave his job.

Allen, although a resident of Anniston, was a member of Local 793 in Huntsville, Alabama, until the International dissolved that union in 1957. Under the International's constitution, on dissolution of a local the members are eligible to become "members at large" in the International. Allen applied for such membership and was accepted. On several occasions he applied for membership in Local 506, which has jurisdiction over motion picture houses in Anniston. He still wants to be a member. Local 506, however, is a closed union.² Allen describes it as a "small exclusive club"; the district court found that its membership is "restricted at the will, whim or caprice of its members". In 1958 its six members rejected Allen's application for membership. Since then, Allen has done nothing to endear himself to the eight or nine members now constituting Local 506.

The constitution of the International union requires all local unions "to insist that all positions within their jurisdiction be filled by their own members", with next preference to members of other locals. The International asserts that the effect of this provision was suspended by a Special Bulletin issued in September 1958 and affirmed at its annual conventions, but the record is unclear on this point and there is no doubt that the provision was not repealed. The plaintiff insists that Local 506, carrying out the International's constitutional mandate, seeks to impose closed shop conditions on the Midway Theatre contrary to the Alabama Right-to-Work law. There is no doubt as to the Local's policy. The undisputed testimony of the owner of the Midway Theatre is that under his management, as under that of the previous owner, the theatre has an oral agreement, made with Gunn, the Local's business agent, to employ only projectionists who are members in good standing of Local 506. In October 1959, in line with this closed shop policy, Gunn asked Allen to quit his job so that the Local could give it to another projectionist, Hawkins, a member of the union.³ At the trial Gunn testified that he "figured" the members of his Local have a right to a job over anybody who is not a member; "that is what we have been doing all these years."

In spite of the pressure from the union, Allen declined to leave his job. Gunn then asked the employer to discharge Allen. The employer refused to discharge Allen. The Local put Hawkins on the job anyway. For thirty-two days Hawkins worked in the same projection room with Allen, his salary paid by the Local. According to the finding below, Hawkins interfered with Allen's duties by cutting off signalling devices and by tampering with adjustments of machines, as part of the union's plan to harass Allen into giving up his employment at the theatre.

February 24, 1960, at the Local's instance, the International wrote Allen ordering him to withdraw within two weeks from the jurisdiction of Local 506. Allen asserts that this order was an order "to get out of town." The International explains in its briefs that this "obligation was not physically to leave town but to cease doing work that otherwise would be done by members of Local 506." Within the context of this case, the distinction is unimpressive.

Still resistant to pressure, the plaintiff remained on his job. In April 1960 the Local filed a charge against Allen with the International. The charge, dated May 26, 1960, states:

"That the said D. R. Allen received a Registered letter, which was received and signed for him on 10 March, 1960, from Walter F. Diehl instructing him to withdraw from the jurisdiction of Local 506, Anniston, Alabama, and to the date of this affidavit said D. R. Allen, has failed and refused to obey and comply with said order to withdraw immediately, pursuant to Article 21, Section 9, of the Constitution and By-Laws of the I.A.T.S.E. & M.P.M.O. of the U.S. and Canada, but is on this date working as an operator at the Midway Theatre, Anniston, Alabama." (Emphasis added.)

A representative of the International conducted two hearings on the case. At the first hearing, June 8, 1960, the charge was read into the record but neither the hearing officer nor Gunn, who conducted the prosecution, seemed to realize the limited nature of the offense with which Allen was charged. Instead, going far afield, Gunn spent considerable time showing that Allen had filed charges against Local 506 with the National Labor Relations Board.⁴ Allen was not represented at this hearing. He made a short statement and left the hearing. This is his statement:

"I am not guilty as charged. This language doesn\'t fit me. What they are trying to do here is illegal and against public policy. They have tried to bring about a lot of things to cause me grief and trouble without any knowledge of any cause on my behalf; and I say that this act is just another way to get around to cause me to lose my job. It seems that they asked for supplement (sic) and have no intention for anything else other than to destroy rather than to be constructive. I say again, I am not guilty as charged. This act is against public policy and is illegal."

After Allen left, Local 506 presented evidence showing that Allen was not a resident of Huntsville and was therefore not eligible for membership in Local 793, the Huntsville local. Gunn testified that when he put Allen on the job he told him that it would be a temporary job. The hearing officer wound up the hearing with the following question directed to Local 506's business agent:

"You realize, of course, that you couldn\'t take Brother Allen off the job if the employer wanted him to stay."

To this Gunn replied, "That is right." Thereupon the hearing was adjourned sine die.

A second hearing was held August 24, 1960. The notice stated that the hearing was "reopened for the purpose of taking additional evidence in relation" to the charge filed against Allen. Taking a restricted view of the purposes of the second hearing, the examiner refused to hear Allen's reason for not withdrawing from the Local's jurisdiction; excluded testimony showing that Local 506 was no longer in existence (because of having fewer than seven members) and had lost its jurisdiction under the International Constitution; excluded testimony that the Local had arbitrarily denied the plaintiff admission to membership on two or three occasions; and refused to allow the plaintiff to impeach the credibility of one of the witnesses. Frustrated, Allen protested, "We can't get anything into the record, everything is overruled." At this hearing Allen was represented by a member of Local 506. Even if we allow for informalities and irregularities common in hearings of this nature, we must say that the large number of unexplained off-the-record discussions fogs the proceedings and makes it difficult to determine whether the plaintiff was given a fair chance to defend himself. At the close of the hearing, the examiner attempted to persuade Local 506 and Allen to settle their differences but the plaintiff was unwilling to give up his job and Local 506 would not settle on any other terms.

October 10, 1960, the hearing officer found the plaintiff "guilty as charged" and recommended that he be expelled from membership in the International. The president of the International approved the recommendation. Shortly thereafter, Allen's employer, apparently still respecting the oral closed shop agreement with Local 506, notified Allen that he was discharged because of his expulsion from the Union.⁵ Later, when Allen threatened suit for violation of the Alabama Right-to-Work law the caught-in-the-middle employer rescinded the discharge.

The plaintiff appealed promptly to the International's General Executive Board. The plaintiff contended that (1) the order directing him to leave the jurisdiction of Local 506 was...