Driscoll v. International Union of Op. Eng., Local 139

• Citation: 484 F.2d 682
• Decision Date: 11 September 1973
• Docket Number: No. 72-1423.,72-1423.
• Parties: Joseph M. DRISCOLL, Plaintiff-Appellant, v. INTERNATIONAL UNION OF OPERATING ENGINEERS, LOCAL 139, Defendant-Appellee, and International Union of Operating Engineers, AFL-CIO, Intervenor-Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

484 F.2d 682 (1973)

Joseph M. DRISCOLL, Plaintiff-Appellant, v. INTERNATIONAL UNION OF OPERATING ENGINEERS, LOCAL 139, Defendant-Appellee, and International Union of Operating Engineers, AFL-CIO, Intervenor-Defendant-Appellee.

No. 72-1423.

United States Court of Appeals, Seventh Circuit.

Argued April 23, 1973.

Decided September 11, 1973.

COPYRIGHT MATERIAL OMITTED

Sanford J. Rosen, American Civil Liberties Union, San Francisco, Cal., James A. Walrath, Milwaukee, Wis., for plaintiff-appellant.

Gerry M. Miller, Milwaukee, Wis., J. Albert Woll, Laurence Gold, Washington, D. C., for defendant-appellee.

Before SWYGERT, Chief Judge, and CASTLE and BARNES^*, Senior Circuit Judges.

CASTLE, Senior Circuit Judge.

Plaintiff Joseph M. Driscoll instituted this action against Local No. 139 of the International Union of Operating Engineers seeking to force the Local to discontinue requiring all candidates for union office to execute a non-Communist affidavit. Because its by-laws required that its local unions demand such an affidavit, the international union intervened. On March 23, 1972, the district court dismissed Driscoll's complaint for want of jurisdiction. Driscoll v. International Union of Operating Engineers, Local 139, 339 F.Supp. 757 (E.D.Wis. 1972).

The parties have stipulated to the facts of this case, which are succinctly reported in the district court opinion. Id. at 758-759. Briefly stated, Driscoll was denied the opportunity to run for the position of treasurer of Local 139 because he declined to execute an affidavit affirming that he was not a member of the Communist Party or any organization advocating the overthrow of the United States government.¹ After exhausting his internal union remedies he filed a complaint with the United States Department of Labor pursuant to § 402 of the Labor-Management Reporting and Disclosure Act of 1959, 29 U.S.C. § 482 (1970) (the "LMRDA") charging that the affidavit requirement violated § 401 of the LMRDA.² After the Department of Labor declined to institute litigation on his behalf,³ Driscoll filed this action in district court, alleging violations of section 101(a)(1), (2) and (5) of the LMRDA (29 U.S.C. § 411(a)(1), (2) and (5)), and the Civil Rights Act of 1871 (42 U.S.C. § 1983).

The district court rejected plaintiff's constitutional arguments, finding that the action of Local 139 in promulgating and enforcing the affidavit requirement did not constitute governmental action which could be regulated by constitutional protections. Id. 339 F.Supp. at 760-761. The court also found that the invocation of the LMRDA as the statutory basis for Driscoll's suit was barred by provisions of that same act making complaint to the Secretary of Labor the exclusive remedy for the denial of one's right to be a candidate for union office. Id. at 762. Accordingly, it dismissed the complaint for want of federal jurisdiction. Plaintiff appealed, and presses in this court the arguments that the district court had jurisdiction pursuant to both the LMRDA and the first and fifth amendments to the United States Constitution.

I. Jurisdiction Under the Labor-Management Reporting and Disclosure Act of 1959.

Appellant Driscoll argues that the district court erred in concluding that it had no jurisdiction over his complaint under § 102 (29 U.S.C. § 412)⁴ because defendants have violated § 101(a)(1), (a)(2) and (a)(5). On this appeal he places his primary reliance on § 101 (a)(2)⁵ by arguing that defendants have infringed upon his right of free speech by denying him the right to run for union office.

Driscoll's attempt to rely upon § 101 (a)(2), however, must overcome an initial hurdle posed by the ambiguity of certain language of the LMRDA and by the interpretation of this language in Calhoon v. Harvey, 379 U.S. 134, 85 S. Ct. 292, 13 L.Ed.2d 190 (1964). The ambiguity arises from the fact that two separate titles of the LMRDA arguably provide remedies to plaintiff Driscoll in this action. Title I allows a private suit pursuant to §§ 101(a)(2) and 102 to vindicate the denial of the right of free speech, and Title IV provides for complaint to and an action brought by the Secretary of Labor to vindicate Driscoll's right of candidacy for union office under § 401(e), 29 U.S.C. § 481(e),⁶ which, by the terms of the statute, is the exclusive means of challenging an election already conducted. 29 U.S.C. § 483.

The district court held that it had no jurisdiction under § 102 over a private suit to void a restriction on candidacy for union office, for, the right of candidacy being an explicit Title IV right, the provision of Title IV providing for complaint to and suit by the Secretary of Labor to protect this right was the only remedy available. In reaching this conclusion, the court relied upon Calhoon v. Harvey, supra, where the Supreme Court dismissed a Title I suit to strike down restrictions on eligibility for union office and held that jurisdiction under 29 U.S.C. § 412 could not "be upheld by reliance in whole or in part on allegations which in substance charge a breach of Title IV rights." 379 U.S. at 138, 85 S.Ct. at 295.

Driscoll seeks to avoid the application of Calhoon to the facts of his particular case on the ground that his case, unlike Calhoon, involves a direct infringement upon his Title I right to freedom of speech. He notes that plaintiff Calhoon sought to attack the requirement that candidates be union members for 5 years and have accumulated 180 days of sea-time in two of the past three years; here, however, Driscoll alleges that the denial of candidacy constitutes a punishment for exercising his right to free speech as guaranteed by § 101(a)(2). Consequently, he argues, this court should have jurisdiction to strike down the requirement just as other courts have had jurisdiction to strike down other union sanctions upon the free speech of their officers⁷ and members.⁸ If such jurisdiction is not established, he submits, the holding of the district court will enable any union to avoid the direct judicial review provisions of Title I simply by veiling its repressive measures in the form of requirements for elective office.

Despite the factual differences between Calhoon and the instant case, we are still bound by the maxim of Calhoon that

. . . disputes . . . basically relating as they do to eligibility of candidates for office, fall squarely within Title IV of the Act and are to be resolved by the administrative and judicial procedures set out in that Title.

379 U.S. at 141, 85 S.Ct. at 296. Since Driscoll's allegations "basically relate" to eligibility and charge "in substance" that he has been denied the right to run for office in his union, he is therefore stating a cause of action which can be enforced only under the provisions of Title IV calling for complaint to and suit by the Secretary of Labor as the exclusive remedy.⁹ The fact that six of the members of the Calhoon court subscribed to the majority opinion in the face of the observation made by Justice Stewart in concurrence—made also by appellant here—that unions could cloak Title I violations in terms of eligibility requirements challengable only under Title IV gives further compulsion for applying Calhoon to the facts of this case.¹⁰

We recognize one exception to the broad mandate of Calhoon. In Schonfeld v. Penza, 477 F.2d 899 (2d Cir. 1973), plaintiff Schonfeld and fellow union members attacked a disciplinary decision of a union which removed Schonfeld from office and declared that he be ineligible to run for any other union office until June, 1973. Although the court recognized that the complaints attacked the deprivation of what appeared to be Title IV rights, it nevertheless concluded that jurisdiction existed under § 102 because plaintiffs had presented the question "whether the sanctions on Schonfeld in the peculiar context of the history of union fractionalism presented here impede or infringe upon the free speech and association rights of union members protected by § 101(a)(2)." Id. at 903. But the court also recognized that such a determination of whether jurisdiction existed depended upon a close analysis of the basic thrust of the complaint, and that one could not obtain jurisdiction by merely alleging the denial of Title I rights when Title IV rights were essentially involved:

The competing values between Title I rights and Title IV procedural requirements are best reconciled, in our opinion, by limiting initial federal court intervention to cases where union action abridging both Title I and Title IV can be fairly said, as a result of established union history or articulated policy, to be part of a purposeful and deliberate attempt by union officials to suppress dissent within the union.

Id. at 904. Since the complaint filed by the plaintiffs had demonstrated a purposeful program of suppressing dissent, and since the "lengthy history of intra-District warfare" proved that plaintiff had not made "mere conclusionary allegations," the court found jurisdiction under Title I. Id.

We find that the complaint of Driscoll in the instant case, although alleging the denial of Title I rights, is insufficient to invoke jurisdiction under the rationale of Schonfeld. The complaint does not allege that the candidacy requirement is part of a purposeful program of suppressing any expression of dissent by plaintiff. Nor does it appear that the eligibility requirement is a discriminatory, ad hoc device calculated to perpetuating certain individuals in office. We hold that this case is not factually distinguishable from Calhoon or similar to Schonfeld to establish jurisdiction under Title I.

Driscoll also attempts to avoid the preclusive effect of Title IV by submitting that he is seeking pre-election remedies which are enforceable under Title I, and not post-election remedies which are available only through the Secretary of Labor.¹¹ In support of his position he cites holdings from various cases and dicta...