Bradford v. Textile Workers of America, AFL-CIO, Local 1093

• Citation: 96 LRRM 2690,563 F.2d 1138
• Decision Date: 14 October 1977
• Docket Number: LOCAL,AFL-CI,No. 76-1921,76-1921
• Parties: 96 L.R.R.M. (BNA) 2690, 82 Lab.Cas. P 10,171 Roger BRADFORD, Appellee, v. TEXTILE WORKERS OF AMERICA,1093, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

Page 1138

563 F.2d 1138

96 L.R.R.M. (BNA) 2690, 82 Lab.Cas. P 10,171

Roger BRADFORD, Appellee, v. TEXTILE WORKERS OF AMERICA, AFL-CIO, LOCAL 1093, Appellant.

No. 76-1921.

United States Court of Appeals Fourth Circuit.

Argued April 8, 1977.

Decided Oct. 14, 1977.

Jonathan R. Harkavy, Greensboro, N. C. (Smith, Patterson, Follin, Curtis & James, Greensboro, N. C., on brief), for appellant.

Louis L. Lesesne, Jr., Charlotte, N. C. (Chambers, Stein, Ferguson & Becton, Charlotte, N. C., on brief), for appellee.

Before CLARK, Supreme Court Justice, ^* RUSSELL, Circuit Judge, and HEMPHILL, ^** District Judge.

DONALD RUSSELL, Circuit Judge:

This is an action to recover damages for a violation by the defendant Union Local of the plaintiff's rights under the Labor-Management Reporting and Disclosure Act, 29 U.S.C. § 411, et seq. Plaintiff recovered a jury verdict and the defendant Local has appealed. We affirm.

The plaintiff was a member of the defendant Local and an elected union committeeman. ¹ The Local Union had five committeemen, who occupied a position in the union hierarchy between the shop steward and the Executive Committee. Each committeeman had responsibility for handling any complaints on behalf of the employees in a particular department of the plant in connection with any labor-management matter.

In April, 1975, a member of the Local filed charges against the plaintiff for alleged misconduct as a union committeeman. A date for hearing on such charges was fixed. The plaintiff claimed he received neither notice of the charges nor of the hearing. Because of the alleged lack of proper notice he failed to attend the hearing. Despite the lack of notice, the Executive Board proceeded with the hearing on April 17, 1975. At the hearing, the Executive Board of the defendant Union found from the evidence offered that the charges against the plaintiff were without merit. At the same time, however, the Board decided without notice, to suspend the plaintiff from his elective position of committeeman for the balance of his term. From this latter action of the Executive Board, taken without the filing of charges and without notice to the plaintiff, the plaintiff filed an administrative appeal as authorized under the International Constitution and By-Laws of the Union. A hearing on such appeal was had on June 24, 1975, before a hearing officer appointed by the International Union as required under the International Constitution and By-Laws in the case of an appeal. On July 25, 1975, the hearing officer filed his report recommending the reinstatement of the plaintiff as committeeman. Reinstatement seems to have followed sometime later. In the meantime, however, on July 8, 1975, the plaintiff had filed this action. As originally declared, it presented only an action under the Act. By amendment, after the decision of the hearing officer the plaintiff added a second count under State law to his complaint. ²

At trial, both the plaintiff and the defendant offered evidence. At the conclusion of the evidence, the district judge directed a verdict for plaintiff on the common law claim and directed a verdict in favor of the defendant on the procedural part of plaintiff's LMRDA claims under § 101(a)(5). The remaining issues were then submitted to the jury, which returned a verdict in favor of the plaintiff. It is from the judgment entered on that verdict from which this appeal is prosecuted.

The defendant asserts as its first ground of appeal that, before filing his action, the plaintiff was required under the Act to exhaust his administrative remedies and that he failed to do so. 29 U.S.C. § 411(a)(4). The plaintiff does not dispute that exhaustion of administrative remedies is generally a prerequisite to a right to sue under the Act. He urges, however, that administrative exhaustion is not an inflexible requirement but one subject to many recognized exceptions. He contends he met at least three exceptions, any one of which would be sufficient to excuse him from the exhaustion requirement under the Act. In the first place, he claimed that his suspension from office without notice, either of the charges or of hearing, was violative of his rights both under the Act and under the Constitution and By-Laws of the Union itself. Since the defendant Union concedes the invalidity of plaintiff's suspension on the latter ground, as admitted by the defendant at trial and as found by the hearing officer, the principle stated in Simmons v. Avisco, Local 713, Textile Workers Union (4th Cir. 1965), 350 F.2d 1012, 1016-7, would excuse exhaustion, he submits. ³ Another ground for excuse arises where the charge represents a violation of the right of free speech granted under § 411(a)(2), 29 U.S.C. of the Act. Keeffe Brothers/John H. Johnson v. Teamsters Local Union No. 592 (4th Cir. 1977), 562 F.2d 298. The plaintiff declares that his action rests basically on the claim that his suspension was in retaliation for the exercise by him of his free speech rights, and this was the construction placed by the District Court on his action. He urges, therefore, that his action falls within this second exception to the exhaustion rule. Finally, he asserts that he had amended his complaint after the hearing officer entered his decision, and that whether he had exhausted his administrative remedies was to be determined by whether they had been exhausted at the time his amended complaint was filed, and not at the time his original complaint was filed, and that, so measured, his action was not commenced until after there had been an exhaustion of administrative remedies. Moreover, he takes the position that the hearing officer sustained the appeal solely on the ground that the notice of charges and of hearing required under the International Constitution and By-Laws had not been given, thus implicitly holding that the plaintiff's claim of a violation of his right of free speech under the Act was without merit, and leaving him only with a legal remedy to redress his free speech rights. It is only necessary to consider the second and third grounds since it was on his free speech claim alone that the District Judge submitted the cause to the jury and on which he based his ruling that exhaustion was excused. ⁴ We conclude that the decision of the District Judge excusing exhaustion was, in the light of the evidence we later discuss, not in error. ⁵

Even if it be found that the plaintiff had satisfied the exhaustion requirement, the defendant posits that the Act gave the plaintiff no right of action whatsoever for removal from office as an officer of a union, even though he was an elected and not an appointed officer, and that this action should accordingly be dismissed. Later, however, in its brief it seems to concede that removal from office, if because of "intra-union political activity" or for something the officer had said or done "as a member," would be covered by the Act's prohibition and would be redressable thereunder. So far as it asserts an absolute denial of any right of action by a union member for removal or suspension from a union office, the defendant relies on a line of cases from the Third Circuit, beginning with Sheridan v. United Brotherhood of Carpenters, etc. (3d Cir. 1962), 306 F.2d 152, in which Judge Kalodner, speaking only for himself, declared that the term "discipline" in § 609 (§ 529, 29 U.S.C.) does not encompass removal from union office, and that the LMRDA protects "the union-member relationship, not the union officer or union-employee relationship." ⁶ The majority view, however, is definitely to the contrary. See Wood v. Dennis (7th Cir. 1973), 489 F.2d 849, 853, cert. denied, 415 U.S. 960, 94 S.Ct. 1490, 39 L.Ed.2d 575 (1974) in which the decisions of the various circuits are cited and reviewed, as well as Cooke v. Orange Belt Dist. Council of Painters (9th Cir. 1976), 529 F.2d 815.

We find the reasoning of the majority compelling. As the Court in Miller v. Holden, supra, 535 F.2d at pp. 916-917, so cogently stated it, a union member, by accepting an elective office in the union, does not forfeit his rights expressly given him as a union member under the Act and is entitled to be protected from "discipline," as that term is used in § 609 of the Act, in connection with his union office. It must be conceded that one of the specifically protected rights under the Act is that of free-speech which encompasses what Cooke calls "intra-union political activity." And, contrary to the defendant's argument, the term "otherwise discipline" in § 609 (29 U.S.C. § 529) is not to be given a "crabbed" construction which would excise from its meaning removal from an elected union office by the local in retaliation for the exercise of the statutorily protected free speech right. The very phraseology of the term itself, "otherwise discipline," ⁷ manifests the legislative purpose to give a broad and liberal construction to the term, and one which certainly would comprehend anything in the nature of retaliation for the exercise of the statutorily protected right of free speech in "intra-union political" affairs. Morrissey v. National Maritime Union (2d Cir. 1976), 544 F.2d 19 at 26. This would obviously reach removal from office of an elected union official under such circumstance. And this is the view taken in a majority of the circuits ⁸ and has the approval of the commentators. ⁹ We accept that view of § 609. It follows that removal from union office for an exercise of free speech by a union member is "discipline" which is proscribed by § 609 of the Act and for which relief is provided under § 412, 29 U.S.C.

It is the defendant's position, however, that the record shows conclusively that the cause of plaintiff's removal from office was, not in retaliation for the exercise of any right of free speech, but because of his non-attendance at the meeting of the Executive Board on April 17, 1975. The defendant's witnesses testified, it is...