Brett v. Hotel, Motel, Restaurant, Const. Camp Employees and Bartenders Union, Local 879

• Decision Date: 28 September 1987
• Docket Number: No. 85-4261,85-4261
• Citation: 828 F.2d 1409
• Parties: 126 L.R.R.M. (BNA) 2595, 107 Lab.Cas. P 10,174 Sherry R. BRETT, Plaintiff-Appellee, v. HOTEL, MOTEL, RESTAURANT, CONSTRUCTION CAMP EMPLOYEES AND BARTENDERS UNION, LOCAL 879, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1409

828 F.2d 1409

126 L.R.R.M. (BNA) 2595, 107 Lab.Cas. P 10,174

Sherry R. BRETT, Plaintiff-Appellee, v. HOTEL, MOTEL, RESTAURANT, CONSTRUCTION CAMP EMPLOYEES AND BARTENDERS UNION, LOCAL 879, Defendant-Appellant.

No. 85-4261.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Nov. 6, 1986.

Decided Sept. 28, 1987.

Dan Siegel and Eric Weaver, Oakland, Cal., for plaintiff-appellee.

Bradley D. Owens, Anchorage, Alaska, for defendant-appellant.

Appeal from the United States District Court for the District of Alaska.

Before SKOPIL, FLETCHER and POOLE, Circuit Judges.

FLETCHER, Circuit Judge:

The Union appeals from judgment on a jury verdict awarding $101,000 in damages to Brett on account of the Union's violation of her rights under the Labor-Management Reporting and Disclosure Act of 1959 (LMRDA). We affirm.

FACTS

Brett, a member of the Hotel, Motel, Restaurant, Construction Camp Employees and Bartenders Union, Local 879 (Union), began kitchen work at Construction Camp No. 2 (CC2) at Prudhoe Bay, Alaska in 1976. In March of 1977, Brett was elected shop steward for CC2. The collective bargaining agreement in effect at the time of her election provided that the steward "be selected by the men on the job, with the approval of the local union." The union contract also provided that stewards would have super-seniority, that is, in the event of layoffs they would be the last to lose their jobs.

On September 5, 1978, Brett was injured in an automobile accident. On that date, Brett held top seniority at CC2, by virtue of her position as steward as well as her date of hire. Because Brett was out of work for more than thirty days due to her injuries, she was terminated by her employer pursuant to the collective bargaining agreement. When she returned to work in January of 1979, she was a "new hire" at the bottom of the hire-date seniority ladder.

The collective bargaining agreement in effect on the date of Brett's accident and throughout the period at issue here provided that stewards would be "selected by the Union's Business Agent." While Brett was out of work, business agent Kay Rollison appointed another as steward. Brett claims that this was meant only as an interim appointment, effective until her return. Brett was either reinstated to her elected position or appointed as steward by Rollison the day after she returned to CC2.

On March 13, 1979, Kay Rollison was defeated in an election for business agent by William Hensley. Brett had supported Rollison in that election. On March 17, Brett was removed from her position as steward by Union President, James Campion, who, on that date, was acting business agent. Brett's removal was allegedly prompted by a report that Brett had passed out Teamster bargaining cards. This charge was denied by Brett and never subsequently substantiated. On March 20, Hensley visited CC2 and announced that there would be an election for steward. Over lunch, Hensley was told that Brett would win the election. At a 2:00 p.m. gathering of union members, Hensley announced The Union claims that Hensley did not want Brett elected steward because layoffs were soon to come and "it would be in the best interest of the members" to appoint a member with high seniority. Brett claims that her removal was part of a three-year effort by officials of Local 879 to purge Kay Rollison and her supporters from positions in Union leadership. Rollison, in her attempts to protest union activities, run for union office, and stay in office once elected, had been met with a series of illegal obstructions carried out by the Local and the International. See, e.g., Rollison v. Hotel, Motel, Restaurant, and Construction Camp Employees Local 789, 677 F.2d 741 (9th Cir.1982).

that there would be no election, but rather that he would appoint a steward.

With loss of her position as union steward, Brett lost her super-seniority and, on March 27, 1979, her job.

PROCEEDINGS BELOW

Brett's original complaint named five defendants and pled four causes of action. However, only one defendant, the Union, and part of one cause of action remained by the time the case went to the jury. Brett claimed that her removal as steward was illegal retaliation for her exercise of her rights to freedom of speech and assembly under section 101(a)(2) of the LMRDA, 29 U.S.C. Sec. 411(a)(2). Jurisdiction was invoked under LMRDA section 102, 29 U.S.C. Sec. 412 (1982).

Early in this litigation, the Supreme Court decided Finnegan v. Leu, 456 U.S. 431, 102 S.Ct. 1867, 72 L.Ed.2d 239 (1982), which held, with some arguable exceptions, that there was no cause of action under section 101(a)(2) for union members based on their removal from union office. The Union moved for summary judgment, arguing that Finnegan barred Brett's claim.

In deciding the motion, the district court "focus[ed] on the questions whether Finnegan v. Leu is applicable to elected union officials ... and, if not ..., whether there are questions of fact concerning the plaintiff's status as elected or appointed." In denying summary judgment, the court found that Finnegan did not apply to elected job site stewards and that there were triable issues of fact as to Brett's status. ¹

The parties filed a stipulated pretrial order stating that there were four contested issues for trial: (1) whether Brett was elected or appointed; (2) whether Brett was a nonpolicy-making or nonconfidential official; (3) whether Brett had been removed from office due to her exercise of free-speech rights; and (4) whether Brett's removal was part of an attempt to suppress dissent within the Union. ² At the close of Brett's case, the Union moved to dismiss, ³ or in the alternate for summary judgment Brett's counsel provided the district court with proposed jury instructions, but the Union's counsel did not. The final instructions were agreed to by the parties in an in camera conference with the judge, and the Union offered no objections to the instructions before they were read to the jury. ⁴

claiming that Brett had not presented sufficient evidence to prove that her dismissal was retaliatory. Both motions were denied.

Following the jury's verdict in favor of Brett, the Union moved for a judgment notwithstanding the verdict (JNOV) pursuant to Fed.R.Civ.P. 50(b). ⁵ In the alternative, the Union moved for a new trial. The district court denied both the JNOV and a new trial.

DISCUSSION

1. The Effect of Finnegan v. Leu

The Union asks us to find that Brett's LMRDA claim was barred by Finnegan. In Finnegan, appointed Teamster business agents were ousted from their positions by a newly elected president whom they had not supported. The local's bylaws gave the president authority to appoint and discharge business agents. The ousted agents sued the union under various sections of the LMRDA including the sections relevant here: section 102, 29 U.S.C. Sec. 412, which provides for a private cause of action in district court for violations of Title I of the LMRDA, 29 U.S.C. Secs. 411-415, and section 101(a)(2) of Title I, 29 U.S.C. Sec. 411(a)(2), which, in part, provides:

Every member of any labor organization shall have the right to meet and assemble freely with other members; and to express any views, arguments or opinions; and to express at meetings ... his views, upon candidates in an election ..., subject to the organization's established and reasonable rules pertaining to the conduct of meetings....

Recognizing that the petitioners--as members--had a protected right to support the candidate of their choice, the Court phrased the issue as "whether they were thereby immunized from discharge at the pleasure of the president from their positions as appointed union employees." Finnegan, 456 U.S. at 437, 102 S.Ct. at 1871. The Court determined that "it was rank-and-file members--not union officers or employees, as such"--whom Title I was aimed at protecting. Id. Because petitioners had not been prevented from exercising their membership rights to vote and campaign for their candidate, id. at 440, 102 S.Ct. at 1872, the court held that their rights under Title I had not been infringed. Id. at 440-42, 102 S.Ct. at 1872-74. That the petitioners "were forced to 'choos[e] between their rights of free expression ... and their jobs,' " id. at 440, 102 S.Ct. at 1873 (quoting Retail Clerks Union Local 648 v. Retail Clerks Int'l Ass'n., 299 F.Supp. 1012, 1021 (D.D.C.1969)), was termed only an "indirect interference" insufficient to support the cause of action. Id. ⁶

Brett argues that Finnegan does not apply to elected officers, see supra at 1412, to nonpolicymaking or nonconfidential officers, see Finnegan, 456 U.S. at 441 n. 11, 102 S.Ct. at 1873 n. 11; supra note 1, or to officers removed in a union's purposeful attempt to suppress dissent, see, e.g., Finnegan, 456 U.S. at 441, 102 S.Ct. at 1873; Adams-Lundy v. Association of Professional Flight Attendants, 792 F.2d 1368, 1372 (5th Cir.1986), and that she fits into all Whether Brett was elected or appointed is a question of fact that should have been submitted to the jury, but was not. Nor did the district court make any determinations on this issue. As we have noted, see supra at 1412, the Union did not submit jury instructions and did not object to the instructions in a timely fashion. Because the Union failed to ensure that this issue was presented to the jury or to object to the fact that it was not, it cannot now raise the question on appeal. ⁷

                of these exceptions.  The Union claims that Finnegan does apply to elected officials but does not challenge the nonpolicymaking/nonconfidential or the suppression-of-dissent exceptions to Finnegan.    It does, however, ask us to find that Brett was appointed, not elected;  that she was a policymaking or confidential officer;  and that reasonable jurors could not have found that the Union engaged in a deliberate and purposeful attempt to suppress dissent
                

Similarly, there was no final...