Bunz v. Moving Picture Mach. Operators' Protective Union Local 224

• Decision Date: 16 November 1977
• Citation: 186 U.S.App. D.C. 124,567 F.2d 1117
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1117

567 F.2d 1117

96 L.R.R.M. (BNA) 3083, 186 U.S.App.D.C. 124,

82 Lab.Cas. P 10,210

Ernest W. BUNZ, Appellee v MOVING PICTURE MACHINE OPERATORS' PROTECTIVE UNION LOCAL 224, Appellant.

No. 76-1599.

United States Court of Appeals District of Columbia Circuit.

Argued 3 Oct. 1977.

Decided 16 Nov. 1977.

Michael Wolf, New York City, with whom Ronald Rosenberg and George B. Driesen, Washington, D. C., were on the brief, for appellant.

Philip F. Hudock, McLean, Va., for appellee.

Before BAZELON, Chief Judge, and TAMM and WILKEY, Circuit Judges.

Opinion for the Court filed by WILKEY, Circuit Judge.

WILKEY, Circuit Judge:

The question presented in this case is whether the federal courts have jurisdiction

of a union member's claim that he was denied the "equal right to vote" guaranteed by the Landrum-Griffin Act ¹ when his union conducted a referendum in plain disregard of its by-laws. We conclude that the District Court properly took jurisdiction, and affirm its judgment on the merits.

FACTS

Plaintiff Bunz is a member of the Moving Picture Machine Operators' Protective Union Local 224, a District of Columbia labor organization. During a strike, the officers of Local 224 determined to impose an assessment of $50 per month on any member who did not walk the picket line. The assessment was initiated on 19 May 1975; contrary to provisions of the Landrum-Griffin Act, ² however, the referendum authorizing the assessment was conducted by standing vote, ³ rather than by secret ballot. In response to a complaint by the plaintiff, the picket assessment was resubmitted to the membership and a secret ballot vote thereon was held on 30 June 1975. Fifty-nine per cent of the members present voted for the assessment. The local's by-laws required that assessments be approved by two-thirds of the members present. ⁴ The local's attorney nevertheless ruled that the assessment had passed, arguing that the two-thirds provision was invalid because it conflicted with § 101(a) (3) of the Landrum-Griffin Act, which provides that no special assessment shall be levied "except . . . by majority vote." ⁵ Pursuant to this ruling, Local 224 has charged and collected the $50 picket assessment continuously since 19 May 1975.

After exhausting internal union remedies, Bunz brought suit in federal district court, alleging improper implementation of the picket assessment. The parties joined issue on the validity of the two-thirds provision and on the propriety of awarding attorneys' fees. In a well-reasoned opinion, District Judge Gasch granted plaintiff's motion for summary judgment. ⁶ The court concluded that the "majority vote" provision of § 101(a)(3) establishes only a minimum requirement, and leaves a union free to enact more stringent rules for approval of assessments. ⁷ Judge Gasch also concluded that Local 224 was required to reimburse the plaintiff for his attorneys' fees under the "common benefit" doctrine of Hall v. Cole. ⁸ Judge Gasch's opinion was The only serious question raised on appeal is whether the District Court had subject-matter jurisdiction of the suit. ⁹ Neither party in the trial court put this matter in issue. ¹⁰

in all respects correct and is affirmed with regard to the two issues with which it dealt.

ANALYSIS

Landrum-Griffin Act § 102 gives the district courts jurisdiction of civil actions brought by "(a)ny person whose rights secured by provisions of (the Act) have been infringed by any violation of (the Act) . . . ." ¹¹ In accordance with this section, the courts have consistently held that a union's violation of its constitution or by-laws "does not per se amount to a violation" of the Landrum-Griffin Act, ¹² and that the federal courts "do not possess jurisdiction to enforce union constitutions and by-laws where there has been no violation of a specific right enunciated in (§ 101(a) of the Act)." ¹³ In this case, Bunz cannot base federal jurisdiction on a violation of any right enunciated in the "dues and assessments" provision of § 101(a)(3). That section merely gives him the right that "no . . . assessment shall be levied . . . except . . . by majority vote," ¹⁴ and Local 224 did not deny him that right when it ignored the two-thirds provision of its by-laws. ¹⁵ If Bunz is to prevail, therefore, he must be able to predicate jurisdiction on a violation of a specific right enunciated in § 101(a)(1).

Section 101(a)(1) states that "(e)very member of a labor organization shall have equal rights . . . to vote in elections or referendums . . . , subject to reasonable rules and regulations in such organization's constitution and bylaws." ¹⁶ In order to ascertain whether the union's conduct in this case deprived Bunz of his equal right to vote, it is necessary to elaborate what the "equal right to vote" implicates. ¹⁷ The Supreme Court has described § 101(a)(1) as "a command that members and classes of members shall not be discriminated against in their right to nominate and vote." ¹⁸ A union's discrimination against its members is most obvious, of course, when it denies some of them the right to vote outright. ¹⁹ However, a union cannot immunize itself against charges of discrimination simply by affording each member the "mere naked right to cast a ballot;" ²⁰ the right each member has to vote must be "meaningful." ²¹ Accordingly, the courts have found that the "equal right to vote" was denied, notwithstanding universal suffrage, where union officials circulated inadequate or misleading information about matters to be voted upon; ²² where union officials refused to provide opponents access to a membership mailing list; ²³ where ballots were submitted to members in unsuitable form; ²⁴ where irregularitiesoccurred in counting ballots; ²⁵ and where union officials refused to implement the result of a properly-conducted vote. ²⁶ Evidently, the equal right to vote may be denied upon the occurrence of serious discrimination, irregularities, or foul play at any stage of the electoral process.

Proceeding upon this case law, it seems clear that Local 224 discriminated against Bunz by depriving him of his equal right to cast a meaningful vote. Like other members who opposed the assessment, Bunz was allowed to cast a ballot; yet the minority's ballots were deprived of their effectiveness when the union, by issuing a patently frivolous interpretation of its constitution, raised the percentage of votes required to defeat the assessment from 34% To 51%. In so doing, the officers plainly discriminated against the minority, who opposed the assessment, and aligned themselves with the majority, for the obvious reason that the majority backed the officers' policy. Because the union thus deprived Bunz of his "equal right to vote" secured by § 101(a)(1), the court below had jurisdiction under § 102.

The only significant argument against this conclusion would be based on language in a series of Second Circuit cases, stressed by appellant. These cases suggest that § 101(a)(1) is violated only when the union's discrimination is evidenced by a more direct attack on the right to vote than occurred here. In Robins v. Rarback, ²⁷ plaintiff urged the court to "construe the language of (§ 101(a)(1)) as granting authority to the federal courts to control and direct the entire conduct of union elections on the theory that the right to vote is a right to cast an 'effective' vote, and that a vote cannot be effective unless the election is properly conducted in all its aspects." Although the court actually disposed of the case on other grounds, it said in dictum that it "would be reluctant to hold that such a simple guaranty of the equal right to vote would carry with it the broad implications with which the plaintiff would freight it." ²⁸ In Gurton v. Arons, ²⁹ Judge Lumbard framed the "difficult question presented (as) whether the equal right to vote guaranteed by § 101(a)(1) is infringed if union officers, acting without justification from the union bylaws, void the result of a properly-conducted vote." ³⁰ Judge Lumbard drew from Calhoon v. Harvey ³¹ "the more general principle that § 101(a)(1) protects the right to vote only against relatively direct attack," and "reluctantly conclude(d) . . . that the more indirect attack involved in this case arbitrarily voiding the result of a vote after it is taken does not infringe the rights of the plaintiffs under § 101(a) (1)." ³²

We believe that the language of these opinions does not defeat jurisdiction in the present case, for three reasons. First, the narrow approach to the "equal right to vote" that these decisions manifest has not been consistently followed even in the Second Circuit. The language in Robins was dictum, and provoked strong words from Judge Waterman in concurrence. ³³ Later decisions, moreover, have adopted a more liberal approach. In Navarro v. Gannon, ³⁴ the court held that "the guaranty in Section 101(a)(1) of the equal right to participate in the deliberations and voting at union meetings . . . necessarily encompass(es) the right to assemble, consult and decide matters of concern to the local union without the inhibiting presence and control by international officials." ³⁵ Although the attack on members' rights in Navarro seemed rather indirect, the court distinguished Gurton, somewhat halfheartedly, on the ground that Gurton involved a "threat . . . to (members') voting rights," whereas Navarro involved "a threatened invasion of the members' right of free discussion." ³⁶ In Sheldon v. O'Callaghan, ³⁷ the Second Circuit again distinguished Gurton and held that "union officials' stiff-necked refusal even to provide their opponents access to the membership mailing list rendered the referendum procedure so patently unfair that their conduct can fairly be deemed 'a denial of the (members') equal right to vote . . . .' " ³⁸ In Fritsch v. District Council No. 9, Brotherhood of Painters, ³⁹ Judge Feinberg noted that uncertainty over the meaning of "equal voting...