Casumpang v. International Longshoremen's & Warehousemen's Union

• Decision Date: 23 October 2001
• Docket Number: PLAINTIFF-APPELLANT,No. 99-16674,DEFENDANTS-APPELLEES,99-16674
• Citation: 269 F.3d 1042
• Court: U.S. Court of Appeals — Ninth Circuit
• Parties: (9th Cir. 2001) NICANOR E. CASUMPANG, JR.,, v. INTERNATIONAL LONGSHOREMEN'S AND WAREHOUSEMEN'S UNION, LOCAL 142, DEFENDANT, AND JOHN DOES 1-10; INTERNATIONAL LONGSHORE & WAREHOUSE UNION, LOCAL 142; EUSEBIO LAPENIA, JR.,

Page 1042

269 F.3d 1042 (9th Cir. 2001)

NICANOR E. CASUMPANG, JR., PLAINTIFF-APPELLANT, v. INTERNATIONAL LONGSHOREMEN'S AND WAREHOUSEMEN'S UNION, LOCAL 142, DEFENDANT, AND JOHN DOES 1-10; INTERNATIONAL LONGSHORE & WAREHOUSE UNION, LOCAL 142; EUSEBIO LAPENIA, JR., DEFENDANTS-APPELLEES.

No. 99-16674

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Argued February 15, 2001

Submission deferred February 15, 2001

Submitted March 9, 2001

Filed October 23, 2001

[Copyrighted Material Omitted]

Shawn Anthony Luis (argued), Honolulu, Hawaii, for the plaintiff-appellant. Herbert R. Takahashi, Honolulu, Hawaii; Fred H. Altshuler (argued), Altshuler, Berzon, Nussbaum, Berzon & Rubin, San Francisco, California, for the defendants-appellees.

Appeal from the United States District Court for the District of Hawaii; Alan C. Kay, District Judge, Presiding. D.C. No. CV-98-00775-ACK

Before: Alarcon, Kozinski, and Hawkins, Circuit Judges.

Alarcon, Circuit Judge:

Nicanor E. Casumpang, Jr. appeals from the dismissal of this action. The district court concluded that it lacked subject matter jurisdiction pursuant to Title IV of the Labor Management Reporting and Disclosure Act ("LMRDA"), 29 U.S.C. § § 481-83 (2000), over his second amended complaint and, alternatively, on the basis that "[e]ven if the Court found that Plaintiff's Second Amended Complaint substantively involved Title I rights rather than Title IV rights, which it does not, the Court would still dismiss the complaint because Plaintiff failed to exhaust internal union procedures in a timely fashion."

We reverse the dismissal of this action because we conclude that the district court erred in determining that it lacked subject matter jurisdiction over the second amended complaint. We also vacate the dismissal of the second amended complaint because the district court erroneously determined that Casumpang was required to exhaust union hearing procedures before filing his Title I claim in the district court.

PART ONE

I. The Cease-and-Desist Outside Gainful Employment Order

Casumpang has been a member of the International Longshore and Warehouse Union ("ILWU") since July 22, 1981. On April 2, 1996, Casumpang was employed full-time as an elected business agent of Local 142 of the ILWU. Members of the Local Executive Board filed written charges against him on that date, alleging he had violated Article II, § 1 of the Local's constitution.¹ The matter was set for trial on April 16, 1996 before the Maui Division Trial Committee. Before then, Casumpang, officers of the Local, and Roger Tacdol, the ILWU Maui Division Director, entered into a stipulation concerning the facts and waived their right to a trial.

The parties stipulated as follows: Casumpang was an elected full-time official on the Local's payroll. While an employee, Casumpang had performed services as a licensed electrical contractor without authorization of the Executive Committee or approval of the Local Executive Board. Casumpang also agreed not to seek an appeal from the determination of the Maui Division Trial Committee, or file any action against the Local or its agents or officers because of the charges brought against him.

Based on the stipulated facts, the Maui Division Trial Committee found Casumpang guilty of violating Article II, § 1 of the Local's constitution. Casumpang was ordered to cease working as an electrical contractor and to seek prior authorization before engaging in any further business as an electrical contractor. On April 22, 1996, Casumpang applied to the Local Executive Board for authorization to conduct an electrical contracting business. His request was denied on June 4, 1996.

II.

A. The Challenged November 1997 Ballot Count

The Local elects officers every three years as required by § 401(b) of the LMRDA, 29 U.S.C. § 481(b).² Casumpang was nominated for the position of Maui Division Director on September 8, 1997. His opponent was Rogelio "Roger" Tacdol. Casumpang won the election with 2017 votes, to Tacdol's 1999. Tacdol appealed the results, listing four irregularities in the counting of challenged ballots. The Local appointed an Election Investigating Committee to examine these challenges.

Tacdol submitted a supplemental challenge to the election results about a week later. In addition to the four grounds he previously asserted, Tacdol alleged that Casumpang violated the Local Election Code by campaigning while on duty as a business agent, and placing campaign literature on the windshields of cars in the employees' parking lots at three hotels in Maui.

The Election Investigating Committee found that the Maui Division Balloting Committee had "improperly opened, counted and commingled 115 challenged ballots." It also found that Casumpang had campaigned on "paid time," and that fliers advertising Casumpang's candidacy were left on cars on hotel property. The Election Investigating Committee recommended that the election results be set aside and that the Local Executive Board direct that a new election be conducted.

The Local Executive Board sustained Tacdol's challenge to the election based on the findings of the Election Investigating Committee, and ordered a new election within forty-five days.

On January 16, 1998, Casumpang filed an appeal with Brian McWilliams, President of the ILWU, from the Local Executive Board's decision. Casumpang alleged that Tacdol had "handpicked" a majority of the members of the Maui Division Balloting Committee including a relative, Frances Pagay, and others who had campaigned for his election. Casumpang argued that the evidence presented to the Election Investigating Committee was insufficient to demonstrate that the procedures followed in counting the ballots affected the outcome of the election. Casumpang asserted that"the Election Investigating Committee's hearing was `fixed,' and a complaint has been filed with the U.S. Department of Labor." Finally, Casumpang maintained in his January 16, 1998 appeal that a re-election should not have been ordered because his margin of victory would have been greater but for serious violations of the Local's election procedures by the Balloting Committee.

B. The Loss of Good Standing Membership Privileges

Within a week of the Executive Board's ordering a new election, the officers of the Local requested that Casumpang provide information regarding whether he had continued to work as an electrical contractor after his request for authorization to do so was denied.

Casumpang objected to the timing and fairness of the investigation and accused the officers of the Local of "an attempt to selectively prosecute me as a result of my election to the office of Division Director." Casumpang denied that he had been gainfully employed as an electrical contractor since June 4, 1996.

The Secretary-Treasurer of the Local notified Casumpang in writing that "you may not be eligible for the union office to which you have been nominated" because a doubt had been raised regarding whether Casumpang had been gainfully employed in violation of Article II, § 2.01 of the Local's constitution, as amended in 1997. Two days later, thirteen members of the Local filed written charges accusing Casumpang of performing work as an electrical contractor. He was also charged with filing electrical permit applications with the Department of Public Works, County of Maui, a violation of the Maui Trial Division's order.

Casumpang filed a written response to the charges before his hearing. He contended, among other things, that he had not been properly served with notice of his possible ineligibility for office until the last day for the filing of a response. He complained that "[t]his intentional and unprofessional tactic is but another in a long string of attempts to prevent me from assuming the post [to] which I have been duly elected by the membership of the Maui Division of the ILWU." Casumpang argued that Article II of the Local's constitution was invalid because it had not been properly ratified by the Local's membership. He also said that he had not been gainfully employed as an electrical contractor since June 4, 1996. He admitted that he had filed for electrical permits as favors to friends, without receiving compensation.

The Judicial Panel conducted a hearing on January 16, 1998 to consider evidence concerning charges filed on January 7, 1998. On January 17, 1998, the Judicial Panel rendered its decision. It found that Casumpang had "knowingly and deliberately violated Article II, Section 1 of the[Local's] Constitution on or about June 14, 1996, July 16, 1996, August 20, 1996, October 22, 1996, June 2, 1997, July 30, 1997, August 6, 1997, October 13, 1997, and October 27, 1997."

The Judicial Panel ordered as follows:

1. Effective June 14, 1996[,] Casumpang is suspended as a member in good standing of ILWU Local 142 for a period of nine (9) consecutive years.

2. During the period of his suspension as a member in good standing of ILWU Local 142 (a period of 9 years) Casumpang shall neither be eligible for nomination [to], nor serve as[,] an officer of ILWU Local 142 or as an officer or steward of any of the units of ILWU Local 142.

3. Effective January 7, 1998, Casumpang shall receive no further compensation as a business agent and Casumpang is hereby ordered to turn in all union office keys and all papers and property of the union on January 19, 1998 at 12:00 noon to the Secretary [-] Treasurer of the union, or his designee.

4. Effective the date of this Decision and Order and continuing up to June 14, 2005[,] Casumpang shall not be permitted to serve in any appointed full-time position in ILWU Local 142.

5. Within 60 days of the date of this Decision and Order Casumpang shall pay a fine of $7,636 to ILWU Local 142.

The Judicial Panel notified Casumpang that he had a right to appeal from its decision to the Local Executive Board within fifteen days. Casumpang was also informed that Rule 27 of the Financial...