Davis v. Howard
| Decision Date | 17 October 1977 |
| Docket Number | No. 75-3799,75-3799 |
| Citation | 561 F.2d 565 |
| Parties | 96 L.R.R.M. (BNA) 2696 Moses DAVIS, Jr., et al., for themselves Individually and as members and representatives of a class of other persons similarly situated, Plaintiffs-Appellants, v. James HOWARD et al., Defendants-Appellees. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Thomas L. Carter, Jr., Atlanta, Ga., Jules Bernstein, Phillis Payne, Washington, D.C., for plaintiffs-appellants.
David Crosland, Robert H. Stroup, Atlanta, Ga., for Local 1644 et al.
A. L. Zwerdling, Gen. Counsel, Janet G. Kohn, Larry P. Weinberg, Washington, D.C., for AFSCME.
John E. Dougherty, Asst. City Atty., Dept. of Law, Atlanta, Ga., for defendants-appellees.
Appeal from the United States District Court for the Northern District of Georgia.
Before GODBOLD and CLARK, Circuit Judges, and HOFFMAN *, District Judge.
The question presented by appellants before the trial court was whether arbitration is a factual issue going beyond Article XX of the AFL-CIO Constitution. That provision supplies settlement procedures for internal disputes among AFL-CIO affiliates. 1 Our question on appeal is, however, whether the trial court properly employed Rule 12(b)(6), F.R.C.P., in disposing of that issue.
The appeal arises from an alleged class action filed on behalf of a group of employees who were, at the time of filing, employed by the City of Atlanta, Georgia (City) and also associated with the Laborers' International Union of North America, AFL-CIO (LIU). Their complaint alleged violation of the law by City officials in that they allegedly wrongfully and discriminatorily deprived appellant employees of grievance representation by LIU and union dues checkoff to LIU. Also, they alleged that appellee City and its officers joined in a conspiracy with appellee American Federation of State, County and Municipal Employees and its locals (AFSCME) to deprive them of the two representational practices they claim as rights under 42 U.S.C. §§ 1983, 1985. Jurisdiction was alleged to exist under 28 U.S.C. §§ 1331 and 1343.
The individually named appellants and their alleged class members include those employees of the City who have executed dues deduction authorization and designated grievance representation cards in favor of LIU. During 1974 a substantial number of City employees filed such authorization cards in compliance with City labor representation ordinances, and LIU did in fact represent them throughout 1974.
However, in January, 1975, appellants allege that the City terminated LIU's status as a representative of City employees. Further, they claim this termination or denial of representation by the City was abrupt and arbitrary insofar as it occurred over repeated employee protest and without reference to any standard, rule, or administrative procedure. Simultaneous with this withdrawal of recognition was the City's continuation to accord AFSCME the right of employee grievance representation which it had denied to LIU.
On January 20, 1975, the City adopted an ordinance to establish dues checkoff procedures where employees may submit executed enrollment cards for "any organization recognized by the City Council and approved by the Mayor by ordinance . . ." 2 In addition to such recognition, an organization "must have been designated as the organization of which the employee is a member, on the above dues authorization card of such employee, by more than one-half of the total number of eligible employees . . . ." The Ordinance specifies the employee procedure for withdrawal or termination of dues authorization cards executed prior to, or after, the effective date of the Ordinance. Finally, in July, 1975, the City publicly announced that AFSCME had submitted the requisite number of authorization cards to entitle it to dues checkoff under the Ordinance. The City thereafter began to deduct employee dues and remit them to AFSCME. Appellants allege disparate and discriminatory administration in that AFSCME was treated as a "recognized" employee organization even though, appellants argue, LIU in fact held over one-half of the authorization cards for eligible employees.
Appellants' complaint, with jury demand, alleged four separate counts, three of which were founded on 42 U.S.C. §§ 1981, 1983 and 1985. Count III, alleging violation of the Georgia Constitution and Code, was grounded upon 28 U.S.C. §§ 1331 and 1343. Counts I, II and III seek injunctive relief. The subject matter of Count I is union representation in employment grievances; Count II concerns membership dues checkoff procedures; Count III incorporates the operational facts of the preceding two counts in alleging violation of Georgia state law; Count IV claims malicious and willful injury from the facts of all prior counts, infringements attributable to only defendants who are neither associated with governmental subdivisions nor departments. Count IV is appellants' sole claim for money damages.
The City and its various officers moved to dismiss the complaint pursuant to Rule 12(b)(6) F.R.C.P., for failure to state a claim upon which relief may be granted. Specifically, they charged the complainant with disregard of Rule 8(a)(2), F.R.C.P., which mandates that the complaint include "a short and plain statement of the claim showing that the pleader is entitled to relief . . . ."
After appellants responded by brief to the City's Rule 8(a)(2) motion to dismiss, AFSCME appeared and moved to dismiss pursuant to Rules 12(b)(1) and 12(b)(6). In support of their dismissal motion, AFSCME submitted a photocopy of the AFL-CIO Constitution (Attachment A), together with a memorandum of law. 3 After citing Article XX of the Constitution, AFSCME concludes: "LIU, as an AFL-CIO affiliate, has bound itself to pursue AFL-CIO exclusive procedure for resolution of intra-union disputes, the complaint should be dismissed as to the union defendants and their officers." Also provided was the written "Determination Re: City of Atlanta, Ga.," before the Impartial Umpire under the AFL-CIO Internal Disputes Plan, Case No. 74-25, Dated: May 2, 1974, in which it was found that LIU violated Sections 2 and 5 of Article XX of the AFL-CIO Constitution in its organizational campaign against AFSCME.
Appellants filed a motion for temporary restraining order, together with affidavits of LIU regional manager and a staff representative in which a conspiracy to refuse checkoff and grievance representation was attributed to the City and AFSCME. An evidentiary hearing was scheduled for October 7, 1975.
Also filed were notices to take deposition and a broad request to produce documentary evidence, pertaining to city employees in service since January 1, 1970. A motion for protective order was promptly filed with attachments, including an affidavit of a city official relative to the impracticability of the request to produce. AFSCME served notice to take the deposition of the General President of LIU. LIU noticed for deposition two officials of the City. In its motion for protective order, AFSCME also asserted the pendency of motions to dismiss pursuant to Rule 12(b)(1) and (6). Filed with their motion was an affidavit of an AFSCME representative stating harassment and intimidation by LIU representatives of AFSCME member employees and officials.
The trial court granted the motions to dismiss on September 30, 1975. No evidentiary hearing was held. There was no notice that the motion to dismiss would be converted into a summary judgment, and consequently, there were no material affidavits presented. In fact, there were no affidavits considered in granting summary judgment. It is these omissions with which we must find fault and accordingly reverse. We express no view as to the final result.
Disposition of appellants' action was rendered ultimately on the trial court's interpretation of the AFL-CIO Constitution. In its order of September 29, 1975, the court cites various provisions of the Constitution upon which it relies after stating:
The trial court quotes the Article XX procedure for handling internal labor disputes, refers to the city ordinance regarding recognition and checkoff, and recites findings made by the labor union umpire. The court found that the action before it was in disregard of Section 20, Article XX, which forbids court action after exclusive determination by the umpire: "This court finds that LIU is barred from coming into this court to relitigate precisely those matters determined by the umpire under the AFL-CIO internal disputes plan." Regarding those issues the umpire may have not covered, the court said: "LIU must seek 'settlement and determination' thereof in accordance with the procedures set forth in Article XX."
In dismissing the action, the court stated: "Having so concluded (that AFSCME was properly recognized by the City in accord with its ordinance), it becomes apparent to the court that the complaint does not state a cause of action against the city-related defendants, notwithstanding the cosmetic civil rights face worn by the complaint." The court continued: "This court is not inclined to give effect to such a circumvention of an otherwise final and binding decision of the impartial umpire (analogizing Vaca v. Sipes, 386 U.S. 171, 87 S.Ct. 903, 17 L.Ed.2d 842)."
We cannot affirm the lower court's disposition since its consideration of the case included matters outside of the pleadings thus affecting an automatic conversion from a Rule 12(b)(6) motion into a Rule 56 motion. Without any indication that the mandatory requirements of Rule 56 were fulfilled, the judgment likewise falls outside the parameters of the Federal Rules of Civil Procedure as an abuse of discretion and, therefore, it is without effect.
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