Buzzard v. Local Lodge 1040 Int. Ass'n of Mach. & A. Wkrs.

• Decision Date: 29 June 1973
• Docket Number: No. 72-1400,72-1401.,72-1400
• Parties: Jack BUZZARD et al., Plaintiffs-Appellees, v. LOCAL LODGE 1040 INTERNATIONAL ASSOCIATION OF MACHINISTS AND AEROSPACE WORKERS et al., Defendants-Appellants. Margaret ALLEN et al., Plaintiffs-Appellees, v. INTERNATIONAL ASSOCIATION OF MACHINISTS AND AEROSPACE WORKERS, LOCAL LODGE 1040 et al., Defendants-Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

480 F.2d 35 (1973)

Jack BUZZARD et al., Plaintiffs-Appellees, v. LOCAL LODGE 1040 INTERNATIONAL ASSOCIATION OF MACHINISTS AND AEROSPACE WORKERS et al., Defendants-Appellants.

Margaret ALLEN et al., Plaintiffs-Appellees, v. INTERNATIONAL ASSOCIATION OF MACHINISTS AND AEROSPACE WORKERS, LOCAL LODGE 1040 et al., Defendants-Appellants.

Nos. 72-1400, 72-1401.

United States Court of Appeals, Ninth Circuit.

March 30, 1973.

Rehearing Denied June 29, 1973.

John E. Rinehart (argued), Hugh Hafer, M. Lee Price, Donaldson, Hafer, Cassidy & Price, Seattle, Wash., Plato E. Papp, Washington, D. C., for plaintiffs-appellees.

Frederick V. Betts (argued), Joan Smith Lawrence, W. R. McKelvy, Skeel, McKelvy, Henke, Evenson & Betts, Seattle, Wash., for defendants-appellants.

Before BROWNING, WRIGHT, and WALLACE, Circuit Judges.

EUGENE A. WRIGHT, Circuit Judge:

Local Lodge 1040, International Association of Machinists & Aerospace Workers Local 1040, IAMAW and two of its officers appeal from an order of the trial court permanently enjoining them from bringing or pursuing certain disciplinary action against members of IAMAW.¹

Plaintiffs below were members of Local 1040, IAMAW, employed by Northwest Airlines NWA at Seattle-Tacoma Airport² and Spokane International Airport³ when, on July 8, 1970, employees of NWA represented by the Brotherhood of Railway, Airline and Steamship Clerks BRAC went on strike against NWA. BRAC personnel established picket lines at most of NWA's facilities, including those at Seattle-Tacoma and Spokane International Airports.

The IAMAW instructed its members to not cross the BRAC picket lines. NWA, however, ordered plaintiffs to return to work and the plaintiffs complied with this order. Finally, the IAMAW agreed with NWA that its members would return to work based on guidelines dated December 8, 1970. The IAMAW members returned to work under this agreement, and the BRAC strike was subsequently settled.

In September of 1971 plaintiffs were individually notified by defendant Nasi, Chairman of the Trial Committee of Local 1040, that charges had been preferred against them by fellow members of Local 1040. Specifically, they were charged with failure to follow instructions from the IAMAW not to cross the BRAC picket line in violation of Article L Section 3 of the IAMAW Constitution.

The letters of notification included the following comments:

"The President of Local Lodge 1040, Brother Leroy Hesner, has appointed a Trial Committee to consider the charges preferred against you by a fellow member of the local.

"The Trial Committee has investigated these charges and decided that there is sufficient substance to these charges to warrant a trial to be held.

"Therefore, you are hereby notified that a hearing will be held. . . ."

Prior to the date scheduled for that hearing, plaintiffs Buzzard et al. filed a "Petition for Injunction Against Local Lodge 1040 of I.A.M.A.W. to Hold Hearings Against Plaintiffs" in Superior Court for King County, Washington. Prior to a hearing in Superior Court the defendants filed a timely petition for removal and the cause was removed to the district court below.

On November 5, 1971, the district court entered a temporary restraining order prohibiting the local from conducting the disciplinary hearings pending a hearing on the merits of plaintiffs' suit for an injunction. On November 8 plaintiffs Allen et al. filed a petition in the district court below for a similar injunction, and the court entered a temporary restraining order pending a hearing on the merits.

After a hearing on the merits, the court granted the permanent injunctions on December 17, 1971. The defendants filed a timely petition for appeal to this court, and this court, finding the two cases to involve common questions of fact and law, ordered them consolidated on appeal.

The context in which this suit has arisen involves a complex and extensive factual background. A chronological detailing of the events leading up to the proposed disciplinary hearings is necessary to a proper understanding of our disposition of this case.

When BRAC struck NWA on July 8, 1970, NWA notified 3,500 IAMAW-represented employees that they were laid off. On July 18, 1970 and thereafter, NWA notified certain IAMAW-represented employees to return to work. These were recalled in accordance with the seniority provisions of the collective bargaining agreement in effect between the IAMAW and NWA at that time. While some of those ordered to return to work did so including the plaintiffs below, the majority did not, apparently in obedience to IAMAW orders not to cross the BRAC picket lines.

NWA then filed a submission with the NWA-IAMAW System Board of Adjustment pursuant to the Railway Labor Act, seeking to invoke its jurisdiction to determine if, under the terms of the NWA-IAMAW collective bargaining agreement, the recalled employees had an obligation to return to work and if their failure to do so resulted in automatic loss of their seniority.

The day after this submission was filed, NWA sued in a United States District Court to enjoin the IAMAW from alleged violations of the Railway Labor Act. The gravamen of its complaint was that the IAMAW was violating the IAMAW-NWA collective bargaining agreement by discouraging its employees from reporting to work.⁴ The court denied a preliminary injunction,⁵ and NWA appealed.

The United States Court of Appeals, Eighth Circuit, found the single underlying issue of the dispute between the parties to be

"whether IAM, in the light of the no-strike provision of the bargaining agreement, retains the right to instruct its members to honor the picket lines of a sister union."⁶

Accordingly, the court, on November 25, ordered that issue submitted to the NWA-IAMAW System Adjustment Board pursuant to § 204 of The Railway Labor Act,⁷ directing that Board to render a prompt decision.

Prior to the issuance of an award by the System Board of Adjustment, NWA and IAMAW verbally agreed under "Guidelines for Recall of Mechanics and Related Personnel Represented by IAM," dated December 8, 1970, 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 nonaction during or arising from the strike.⁸

Pursuant to the guidelines and in consideration of the return to work of IAMAW-represented employees, IAMAW and NWA signed an agreement on December 9, 1970, which included the following condition:

Northwest Airlines and the IAM, their members and their officers, will not initiate any further actions or proceedings in any court or before any agency or in any other forum seeking damages or any other relief for any claim or cause arising out of the circumstances of the strike by the BRAC against Northwest Airlines which commenced on July 8, 1970.⁹

On December 14, 1970, while IAMAW-represented employees were returning to work, the System Board of Adjustment made this award:

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

We note that the System Board of Adjustment expressly indicated that its award was a limited one:

. . . we deem it well to point out that we are not here concerned with matters of discipline or discharge of individuals for refusing to cross picket lines of sister unions. Our sole concern is with the "no-strike" clause as it affects Union conduct.

The Board filed its award with the panel of the United States Court of Appeals, Eighth Circuit, which had ordered the issue submitted. The panel had retained jurisdiction that it might decide the appeal from the denial of the temporary injunction. In its decision on January 18, 1971,¹⁰ the court took judicial notice of developments subsequent to their earlier order: namely, that NWA and BRAC had settled the strike and that BRAC had withdrawn its picket lines. In light of these facts, the court concluded that no temporary relief was required, noting that the complaint seeking a permanent injunction remained with the district court.

The district court, on remand, ordered the petition for a permanent injunction dismissed as moot.¹¹ Subsequently, NWA moved the court to amend this order, in light of certain alleged IAMAW conduct. Specifically, NWA alleged that IAMAW members who had crossed BRAC picket lines were being disciplined at the local lodge level, and that at least in one instance appeals taken within the union hierarchy resulted in an affirmance by IAMAW President Smith and the IAMAW executive council, in violation of both the December 9 agreement and the award of the System Board of Adjustment.

The district court declined to amend its order holding, inter alia, that NWA did not have standing to assert the claim that it was making.¹² Both of these decisions of the trial court were affirmed by the Court of Appeals, Eighth Circuit, in an unpublished per curiam opinion of November 27, 1972.

The disciplinary hearings referred to by the NWA have been the subject of other lawsuits. Adadczewski v. Local Lodge 1487, IAMAW (unreported decision of D.C.N.D.Ill., December 14, 1972);¹³ Verville et al. v. IAMAW (unreported decision of D.C.E.D.Mich., April 25, 1972). We come to the case before this panel.

Title I of the Labor-Management Reporting and Disclosure Act of 1959¹⁴ establishes a "Bill of Rights of Members of Labor Organizations." Section 411(a)(4) of that title provides for the protection of the right to sue:

"No labor organization shall limit the right of any member thereof to institute an action in any court, or in a proceeding before any administrative agency, irrespective of whether or not the labor organization or its officers are named as defendants or respondents in such action or proceeding, . . .: Provided, That any such member may be required to exhaust reasonable hearing procedures (but not to exceed a

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