Cooke v. Orange Belt Dist. Council of Painters No. 48

• Decision Date: 21 January 1976
• Docket Number: Nos. 74--2718 and 74--2719,s. 74--2718 and 74--2719
• Citation: 529 F.2d 815
• Parties: 91 L.R.R.M. (BNA) 2349, 40 A.L.R.Fed. 253, 78 Lab.Cas. P 11,245 Gordon W. COOKE, Plaintiff-Appellee, v. ORANGE BELT DISTRICT COUNCIL OF PAINTERS NO. 48, an unincorporated association and labor organization, et al., Defendants-Appellants (two cases).
• Court: U.S. Court of Appeals — Ninth Circuit

Page 815

529 F.2d 815

91 L.R.R.M. (BNA) 2349, 40 A.L.R.Fed. 253,

78 Lab.Cas. P 11,245

Gordon W. COOKE, Plaintiff-Appellee, v. ORANGE BELT DISTRICT COUNCIL OF PAINTERS NO. 48, an unincorporated association and labor organization et al., Defendants-Appellants (two cases).

Nos. 74--2718 and 74--2719.

United States Court of Appeals Ninth Circuit.

Jan. 21, 1976.

Herbert M. Ansell (argued), Los Angeles, Cal., for defendants-appellants.

David Moore (argued), Reid, Babbage & Coil, Riverside, Cal., for plaintiff-appellee.

OPINION

Before BROWNING and SNEED, Circuit Judges, and RENFREW, ^* District Judge.

SNEED, Circuit Judge:

Plaintiff Cooke brought suit against the defendant unincorporated labor organization (the 'District Council') and alleged violations of several sections of the Labor-Management Reporting and Disclosure Act, 29 U.S.C. § 401 et seq. (the 'Act'). In brief, Cooke contends that the District Council violated the Act by wrongfully transferring his job location to El Centro, California in retaliation for his support of a losing union candidate.

Cooke prayed for injunctive relief restoring him to his former jobsite, Riverside, California, and for punitive and compensatory damages. A hearing was held concerning only the liability aspect of the case. On April 1, 1974, the trial judge, after securing a waiver of findings of fact and conclusions of law from both parties, entered an injunction requiring the union to restore Cooke to his former jobsite. On July 26, 1974, the judge modified the injunction to prevent the union from ousting Cooke from his job pursuant to intra-union disciplinary proceedings. On August 13, 1974, the damage phase of the trial was held and the judge awarded Cooke compensatory damages, punitive damages and attorney fees. Thereafter on August 27, 1974 the reinstatement of Cooke was suspended by the district court and the District Council agreed to pay all wages and fringe benefits to Cooke pending the disposition of this appeal.

In this appeal the District Council insists (1) that the Act is not applicable to the facts of this case, (2) that even if applicable the Act is not available to Cooke because he failed to exhaust the internal appellate remedies available under the District Council's constitution, (3) that the National Labor Relations Board has exclusive jurisdiction with respect to this dispute, (4) that punitive damages do not constitute 'appropriate relief' within the meaning of the Act (i.e., 29 U.S.C. § 412), and (5) that the July 26, 1974 modification of the injunction was improper for numerous reasons.

We hold that the Act may be applicable to the facts of this case, that whether internal appellate remedies must be exhausted before recourse to the Act is possible is a matter of judicial discretion, that the National Labor Relations Board does not have exclusive jurisdiction with respect to this dispute, and that punitive damages may constitute appropriate relief. However we also hold that the present record is inadequate to determine whether internal appellate remedies have been exhausted and to permit a reasoned review of the trial court's April 1, 1974 injunction or its modification on July 26, 1974. As a consequence we must reverse and remand for further proceedings designed to supply the deficiencies which at present preclude a proper review of these actions. During these proceedings and until the termination of all proceedings, appellate as well as trial, with respect to this case, or until June 30, 1976, whichever occurs first, Cooke shall continue to receive from District Council all wages and fringe benefits applicable to his former jobsite. Reinstatement of Cooke to his former jobsite is stayed until further order of this court.

I.

Factual Background.

Cooke had been active for many years in the affairs of the District Council which is composed of nine affiliated local unions scattered throughout Southern California. Cooke serves as a business representative of the District Council, and is a member of Painters Local Union 286, one of the nine affiliated local unions.

The District Council employs a total of seventeen business representatives. Its function is to represent affiliated union employees in their dealings with employers, and to seek improved wages, hours, and other working conditions in the painting and drywall industry.

In June, 1973 elections were held throughout the District Council for the positions of Executive-Secretary and business representatives. Cooke was reelected business representative. Cooke supported the incumbent, Donald McNeel, against George Hartmann for the post of Executive-Secretary. Hartmann was elected.

Prior to this election, Cooke, as a business representative, was assigned to service the membership of Local 286 in Riverside County. Shortly after the election Cooke was reassigned to serve as business representative for Painters & Allied Trades Local No. 313, in El Centro, California, a desert location approximately 167 miles from Cooke's residence.

II.

Retaliatory Assignment of a Union Official As 'Discipline'

Within the Act.

Over a decade ago this court held that sections 101(a)(1) and 101(a)(2) of the Act (29 U.S.C. § 411(a)(1) and (a)(2)), which guarantee 'every member' the right to engage in intra-union political activity, were applicable to officers of unions. Grand Lodge of International Ass'n. of Machinists v. King, 335 F.2d 340, 344 (9th Cir.), cert. denied, 379 U.S. 920, 85 S.Ct. 274, 13 L.Ed.2d 334 (1964). Moreover, this court has held that the discharge from union office of a union member because he supported an unsuccessful candidate in a union election constitutes 'discipline' within the meaning of section 609 of the Act (29 U.S.C. § 529). Id. at 344--47. Section 609 makes it unlawful for a union 'to fine, suspend, expel, or otherwise discipline any of its members for exercising any right to which he is entitled under the provisions of this chapter.'

Our view regarding the application of section 609 to discharge from union office because of intra-union political activity has not been followed by certain other circuits. See Wambles v. International Bro. of Teamsters, Chauffeurs, Etc., 488 F.2d 888 (5th Cir. 1974); Sheridan v. United Brotherhood of Carpenters, 306 F.2d 152 (3d Cir. 1962). These circuits have reasoned that effective implementation of the policies of elected union officials requires that these officials have the right to remove those officeholders whose previous intra-union political activity indicates a lack of sympathy with such elected officials or their policies. ¹ However, we do not stand alone. Recently in Wood v. Dennis, 489 F.2d 849 (7th Cir. 1973), cert. denied, 415 U.S. 960, 94 S.Ct. 1490, 39 L.Ed.2d 575 (1974) the Seventh Circuit sitting en banc embraced the view expressed in King. Other courts have similarly so held. Gabauer v. Woodcock, 520 F.2d 1084, 1091 (8th Cir. 1975); Salzhandler v. Gaputo, 316 F.2d 445 (2d Cir.), cert. denied, 375 U.S. 946, 84 S.Ct. 344, 11 L.Ed.2d 275 (1963); Gleason v. Chain Service Restaurant, 300 F.Supp. 1241 (S.D.N.Y.1969), aff'd, 422 F.2d 342 (2d Cir. 1970); Retail Clerks Union, Local 648 v. Retail Clerks Int. Ass'n., 299 F.Supp. 1012 (D.D.C.1969); DeCampli v. Greeley, 293 F.Supp. 746 (D.N.J.1968); Gulickson v. Forest, 290 F.Supp. 457 (E.D.N.Y.1968); George v. Bricklayers, Masons, Etc., 255 F.Supp. 239 (E.D.Wis.1966); see Beaird and Player, Free Speech and The Landrum-Griffin Act, 25 Ala.L.Rev. 577, 586 (1973).

The issue before us is whether the teaching in King should be extended to job reassignments of union officials initiated to retaliate against such officials for intra-union political activity. We hold that it should. In reaching this result we are aware that the proviso set forth in section 101(a)(2) recognizes that the exercise by a union member of his rights guaranteed by the Act shall not be permitted 'to impair the right of a labor organization to adopt and enforce reasonable rules as to the responsibility of every member towards the organization as an institution and to his refraining from conduct that would interfere with its performance of its legal or contractual obligations.' We are also aware that the concern for administrative coherence, which had led some courts to reject King, is more substantial when the principal, or perhaps only, tangible manifestation of alleged improper discipline is the reassignment of an officer who supported a losing candidate in a union election. A certain number of such reassignments very likely will occur following the election of certain new officers even in unions deeply committed to the values which animate sections 101(a)(1) and (a)(2). The complaining union official who asserts that his reassignment constitutes improper discipline must demonstrate that it reasonably cannot be related to a legitimate desire of the elected officials to secure a structure of job assignments that will permit them to manage the union in accordance with the mandate of their election. This burden of persuasion is not met merely by showing that the complaining official opposed the election of an official who after being elected to the office obtained the reassignment of the complaint. To constitute 'discipline' within the meaning of section 609 the reassignment must be shown to be retaliatory. When so shown the reassigned union official has established a violation of section 609 and is entitled to appropriate relief in a civil action pursuant to section 102 (29 U.S.C. § 412) of the Act.

III.

Exhaustion of Internal Appellate Remedies.

The issue whether an aggrieved official must first exhaust the internal appellate remedies before initiating a civil action pursuant to section 102 has been characterized by this court as a matter of judicial discretion. Buzzard v. Local Lodge 1040 International Association of Mechanics and Aerospace Workers, 480 F.2d 35 (9th Cir. 1973). It follows that the trial court may choose...