Curtis v. International Alliance of Theatrical Stage Employees and Moving Picture Mach. Operators of U.S. & Canada, Local No. 125

• Decision Date: 11 January 1982
• Docket Number: No. 81-1035,81-1035
• Citation: 687 F.2d 1024
• Parties: 111 L.R.R.M. (BNA) 2300, 95 Lab.Cas. P 13,759 Raymond L. CURTIS, Plaintiff-Appellant, v. INTERNATIONAL ALLIANCE OF THEATRICAL STAGE EMPLOYEES AND MOVING PICTURE MACHINE OPERATORS OF the UNITED STATES & CANADA, LOCAL NO. 125, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1024

687 F.2d 1024

111 L.R.R.M. (BNA) 2300, 95 Lab.Cas. P 13,759

Raymond L. CURTIS, Plaintiff-Appellant, v. INTERNATIONAL ALLIANCE OF THEATRICAL STAGE EMPLOYEES AND MOVING PICTURE MACHINE OPERATORS OF the UNITED STATES & CANADA, LOCAL NO. 125 Defendant-Appellee.

No. 81-1035.

United States Court of Appeals Seventh Circuit.

Submitted Jan. 11, 1982. ^*

Decided Aug. 30, 1982.

Mary A. Anast, Chicago, Ill., George M. Fisher, Fisher & Von Willer, Hammond, Ind., for plaintiff-appellant.

Charles Orlove, Chicago, Ill., for defendant-appellee.

Before CUMMINGS, Chief Judge, SPRECHER ^** and WOOD, Circuit Judges.

HARLINGTON WOOD, Jr., Circuit Judge.

Congress passed the Labor-Management Reporting and Disclosure Act, popularly known as the Landrum-Griffin Act, 29 U.S.C. §§ 411-15, to protect individual members of labor unions from the unilateral, and sometimes repressive, actions of the union leadership. Finnegan v. Leu, --- U.S. ----, ----, 102 S.Ct. 1867, 1873, 72 L.Ed.2d 239 (1982); Rosario v. Amalgamated Ladies' Garment Cutters Union, Local 10, 605 F.2d 1228, 1238-39 (2d Cir. 1979), cert. denied, 446 U.S. 919, 100 S.Ct. 1853, 64 L.Ed.2d 273 (1980); Navarro v. Gannon, 385 F.2d 512, 518 (2d Cir. 1967), cert. denied, 390 U.S. 989, 88 S.Ct. 1184, 19 L.Ed.2d 1294 (1968). The Act secures union members the right to vote and participate in union elections, 29 U.S.C. § 411(a)(1), to freely meet, assemble, and discuss union affairs without interference from union leaders, 29 U.S.C. § 411(a)(2), and to control by ballot the levy of union dues and special assessments, 29 U.S.C. § 411(a)(3). The Act also guarantees that no member "may be fined, suspended, expelled, or otherwise disciplined ... unless such member has been (A) served with written specific charges; (B) given a reasonable time to prepare his defense; (and) (C) afforded a full and fair hearing." 29 U.S.C. § 411(a)(5).

Section 102 of the Act, 29 U.S.C. § 412, creates a cause of action for union members alleging a denial of rights under the Act. See Finnegan, --- U.S. at ---- n.10, 102 S.Ct. at 1872 n.10. Congress empowered the district court to grant equitable or monetary relief. The plaintiff, Raymond Curtis, filed this action under section 102 against Local 125 of the International Alliance of Theatrical Stage Employees and Moving Picture Machine Operators ("Local 125"). Curtis was expelled from the union on a variety of charges after a disciplinary hearing before the full union membership. The membership voted by approximately a two to one margin to convict Curtis and rescind his membership. Curtis alleges the proceedings were inadequate under section 411(a)(5) and seeks compensatory damages and reinstatement of his membership status.

I.

The controversy began in 1975 when the complainant, George Kontol, filed disciplinary charges against Curtis, alleging several violations of the union constitution and by-laws. At the time, Curtis and Kontol were film projectionists and members in good standing of Local 125. The plaintiff worked at several area theaters in Portage County, Indiana; Kontol worked regularly at the Tivoli Theater. Kontol charged that Curtis had formed a partnership with Blacky Gross, owner of the Tivoli, caused Kontol's dismissal as the film projectionist there, and assumed Kontol's duties personally.

The plaintiff was tried on the charges at a disciplinary hearing. The local presented evidence indicating that rumors were circulating as early as December 1974 that Gross and Curtis had become partners. Earl McLachlan, the Local 125 business manager, testified that when questioned at that time both men confirmed the rumors. McLachlan added that Gross also acknowledged Curtis had paid him $7,500 to join the partnership and had agreed to work as the projectionist in Kontol's place for a percentage of theater gross receipts rather than the standard union wage set in the collective bargaining agreement. Both Gross and McLachlan believed the arrangement would result in a pay rate below the union wage, but disagreed over its permissibility under the union contract.

One month after his conversation with McLachlan, Gross abruptly fired Kontol. Following the discharge, two members of Local 125 observed Curtis operating the projector at the theater. In addition, McLachlan saw Curtis lock the theater several nights and observed his car parked in the vicinity on several other occasions.

Testifying at the hearing in response to the charges, Curtis denied a partnership existed with Gross. He denied operating the projector and stated the agreement with Gross involved operating the concession stand at the Tivoli, a business which Curtis apparently ran in his spare time. Curtis also presented an affidavit from Gross, which explained that Kontol was fired because Local 125 officers refused to issue Gross a union membership card and allow him to operate the projector. Gross stated that McLachlan had agreed to this arrangement previously at their meeting. Gross did not directly deny that a partnership existed, but stated that he, not Curtis, had operated the projector since Kontol's discharge.

As mentioned, the membership convicted the plaintiff on all charges and voted to expel him. The plaintiff appealed to the international union president, who affirmed the conviction. The plaintiff then filed this action in the district court under section 102, 29 U.S.C. § 412, alleging the union disciplinary proceedings were unfair and inadequate. After a full trial, the magistrate entered judgment for Local 125. The plaintiff now appeals that decision. We affirm.

II.

The plaintiff first argues that contrary to section 101(a)(5)(A), 29 U.S.C. § 411(a)(5)(A), he was not informed of the specific allegations against him. He specifically argues that the structure of the complaint was misleading and left him uncertain of the charges to be refuted because it listed the union laws allegedly violated in the first paragraph and the facts supporting those allegations in the second paragraph, but failed to combine those two paragraphs to inform him which instances of alleged misconduct amounted to a violation of any particular union law. He argues that, as a result, the complaint required him to speculate on the charges and the facts necessary to disprove them.

The plaintiff's testimony at trial, however, directly contradicts his argument on appeal. Curtis admitted at trial that he had read the complaint and understood the charges against him. Basing his finding on this testimony, the magistrate concluded that the complaint informed the plaintiff of the allegations against him and thus satisfied § 411(a)(5)(A). The plaintiff cites nothing to dispute the finding or to indicate it is clearly erroneous.

A review of the complaint substantiates the magistrate's conclusion. The complaint cogently informed the plaintiff of the union laws involved and eight particular instances of conduct allegedly transgressing those laws. The plaintiff's presentation of his case and cross-examination of opposing witnesses at the disciplinary hearing indicates he understood those charges. The plaintiff does not contend his defense, where he denied forming the partnership with Gross and operating the theater projector, would have differed had the complaint taken another form. Rather, the gist of the plaintiff's argument is that the complaint was insufficient because it failed to follow a format which criminal indictments invariably take and allege in a single unit the particular union law involved and facts demonstrating its violation.

Though section 101(a)(5)(A) requires the charging document to contain "written specific charges," it does not require the elaborate specificity of a criminal indictment. Ritz v. O'Donnell, 566 F.2d 731, 735 (D.C.Cir.1977); Tincher v. Piasecki, 520 F.2d 851, 854 (7th Cir. 1975); Eisman v. Baltimore Regional Joint Board of Amalgamated Clothing Workers of America, 352 F.Supp. 429, 435 (D.Md.1972), aff'd, 496 F.2d 1313 (4th Cir. 1974). The complaint need only contain "a detailed statement of the facts relating to the (incident) that formed the basis for the disciplinary action." International Brotherhood of Boilermakers v. Hardeman, 401 U.S. 233, 245, 91 S.Ct. 609, 616, 28 L.Ed.2d 609 (1971). The document here satisfied that standard.

III.

The plaintiff also argues that the guarantee of a full and fair hearing under § 411(a)(5)(C) includes the right to be represented by a lawyer. Over the plaintiff's objections before the proceedings, Local 125 officials refused to allow him professional legal representation. As the basis for this ruling, they cited an internal rule forbidding non-union individuals from addressing union meetings.

Those courts considering the argument that § 411(a)(5)(C) includes the right to counsel have rejected it. Smith v. Sheet Metal Workers International Association, 357 F.Supp. 1386, 1393 (E.D.Tenn.1972); Buresch v. International Brotherhood of Electrical Workers, Local 24, 343 F.Supp. 183, 191-92 (D.Md.1971), aff'd, 460 F.2d 1405 (4th Cir. 1972); Sawyers v. Grand Lodge International Association of Machinists, 279 F.Supp. 747, 756 (E.D.Mo.1967); Cornelio v. Metropolitan District Council, 243 F.Supp. 126, 128-29 (E.D.Pa.1965), aff'd, 358 F.2d 728 (3d Cir. 1966), cert. denied, 386 U.S. 975, 87 S.Ct. 1167, 18 L.Ed.2d 134 (1967). The plaintiff argues, however, that these cases are outdated because the flexible and changing notions of due process incorporated into the Landrum-Griffin Act now require that a union member accused of wrongdoing be represented, if he chooses, by a lawyer. To support the argument, the plaintiff reasons that a union member cannot receive a fair hearing without counsel because (1) unions may now impose drastic sanctions on members violating union rules which Congress did not originally foresee in enacting § 411(a)(5)(C), and (2) the Sixth Amendment has been construed to provide a right to counsel in minor criminal trials...