Driscoll v. INTERNATIONAL UNION OF OP. ENG., LOC. NO. 139
| Decision Date | 23 March 1972 |
| Docket Number | Civ. A. No. 70-C-55. |
| Citation | 339 F. Supp. 757 |
| Parties | Joseph M. DRISCOLL, Plaintiff, v. INTERNATIONAL UNION OF OPERATING ENGINEERS, LOCAL NO. 139, Defendant, and International Union of Operating Engineers, A.F.L.-C.I.O., Intervenor-Defendant. |
| Court | U.S. District Court — Eastern District of Wisconsin |
Irvin B. Charne, and Michael C. Runde, Milwaukee, Wis., for plaintiff.
Gerry M. Miller, Milwaukee, Wis., for defendant.
This is a civil action challenging as incompatible with the Constitution and statutes of the United States a provision of the constitution of the International Union of Operating Engineers, AFL-CIO, which makes candidacy for local union office contingent upon execution of a non-Communist affidavit. Plaintiff requests a declaratory judgment and an injunction permanently enjoining defendants from excluding plaintiff from candidacy because of his refusal to comply with the non-Communist affidavit requirement. This matter is presently before me on defendants' motion for dismissal for lack of jurisdiction or, alternatively, for summary judgment.
The facts are undisputed and are as follows. On June 12, 1968, plaintiff Driscoll, a member in good standing of defendant Local No. 139, was nominated for the office of treasurer of the Local. Upon being nominated, the union sent him two documents for his signature — an acceptance of nomination and a non-Communist affidavit — both of which were required by the International's constitution. Driscoll signed the acceptance of nomination but mailed back the non-Communist affidavit without signature and marked with a large question mark.
The Business Manager of Local No. 139, in a letter dated July 3, 1968, called Driscoll's attention to the fact that he would not be eligible to run for office unless he executed the affidavit by July 8, 1968. On July 5, Driscoll responded that he had not done so because "the United States Supreme Court ruled that section of the Labor Law unconstitutional." On July 8, Local No. 139's election committee ruled that Driscoll was ineligible to run for office because of his failure to execute a non-Communist affidavit as required by the International's constitution.
On July 10, plaintiff was informed of his ineligibility. The next day plaintiff wrote to the General President of the International Union restating his conviction that execution of the non-Communist affidavit was unconstitutional and requesting that the election committee be instructed to place his name on the ballot. By letter dated July 26, 1968, the General President responded that he was unable to comply with Driscoll's request. Driscoll promptly appealed that decision to the General Executive Board of the International Union. On January 15, 1969, after several exchanges of letters, he was afforded a personal hearing before a panel of the General Executive Board. Two months later he was informed by letter from the General Secretary-Treasurer of the International Union that the appeal had been denied.
On March 11, 1969, Driscoll filed his complaint with the United States Department of Labor in accordance with the provisions of § 402 of the Labor Management Reporting and Disclosure Act ("LMRDA").1 The Labor Department processed the complaint and on May 1, 1969, informed Driscoll that his "complaint to the Secretary of Labor alleging violations of Section 4012 of the * * * (LMRDA) * * *" had been investigated, and that it had "been determined that this case is not suitable for litigation under Section 4023 of the Act."
The constitution of the International Union (Art. XXIII, Subdivision 1, Section (b), pp. 83-84) requires the execution of a non-Communist affidavit by candidates for union office but does not prescribe the language to be used therein. This is left to the discretion of the Executive Board of the Local Union (Art. XXIII, Subdivision 1, Section (d), p. 85). Driscoll's refusal, however, to execute the non-Communist affidavit does not turn upon the particular language of the affidavit which he was required to sign. That affidavit has, at any rate, been revised for use in the 1971 elections of Local No. 139.4 Rather plaintiff's position is that a non-Communist affidavit, regardless of form, violates his statutory and constitutional rights as announced in United States v. Brown, 381 U.S. 437, 85 S.Ct. 1707, 14 L.Ed.2d 484 (1965).
Plaintiff alleges as the bases for subject matter jurisdiction for this action Title 28 U.S.C. §§ 1331,5 1337,6 1343,7 and Title 29 U.S.C. § 412.8 I am of the opinion, however, that none of these bases are applicable and, accordingly, that the complaint must be dismissed for lack of jurisdiction.
Plaintiff alleges jurisdiction under Title 28 U.S.C. §§ 1331 and 1343 on the basis that this action arises under the Constitution. Defendants have, plaintiff argues, infringed upon his rights as guaranteed by the First and Fifth Amendments. The First and Fifth Amendments, however, only protect individual rights from infringement by federal and (through the Fourteenth Amendment) state governments. Thus, these amendments cannot be applied to the private sector except when private action is so clothed with governmental authority as to be considered "state" or "federal."
Plaintiff's position is that governmental action may be found in defendants' activities because trade unions play a vital role in the country and because they are subject to federal regulations. There is, of course, no question but that unions are subject to federal regulation9 or that they are vital to our nation's economy; indeed, the latter is the principal reason for the former.10 But the 11 Under the present state of the law I do not believe that a private organization's actions may be labeled "state" or "federal" merely because those actions have a substantial impact on our economy, an economy grounded upon private enterprise by definition and/or merely because Congress, in order to fulfill its modern day responsibilities under the commerce clause, finds it necessary to regulate such private enterprise.12 The case at hand is distinguished from that line of cases finding state action in private activities. Defendants "are not engaged in the exercise of any governmental function, nor do they possess or exercise any delegated power of a governmental nature."13 Nor is this a case like Seidenberg v. McSorleys' Old Ale House, Inc., 317 F.Supp. 593 (S.D.N.Y.1970), which found state action in a private business (a tavern) operated by virtue of a state license and which was the subject of extensive government regulation in almost every facet of its operation. Finally, it is not argued in the instant case that defendants are the recipients of either government funds or special privileges.
Plaintiff alleges that the union's requirement of a non-Communist affidavit from all candidates for union offices constitutes a violation of Title I § 101 of the LMRDA in that the affidavit requirement denies him equal protection, freedom of speech and assembly, and due process.14 It is further alleged that defendants' affidavit requirement is imposed pursuant to authority permitted unions under LMRDA.15 Accordingly, it is argued that this court has jurisdiction under Title 28 U.S.C. §§ 1331, 1337, 1343, and Title 29 U.S.C. § 412. I find that this argument is not persuasive.
Congress, when it adopted the LMRDA, chose to incorporate into that Act bases for federal court jurisdiction separate and distinct from those set out in Title 28 U.S.C. §§ 1331, 1337, and 1343. At least in a case such as this, it cannot be said that §§ 1331, 1337, and 1343 jurisdiction arises on the bases of violations of the LMRDA. Rather, the court must find its grant of jurisdiction within the Act itself.16
Turning then to the LMRDA, there are two possible bases for jurisdiction. First, § 102 allows the individual union member to bring an action in this court seeking redress for violations of § 101; and second, § 402 allows the Secretary of Labor (and only he) to bring an action for violation of Title IV rights. (Title IV deals with union elections and eligibility to be a candidate.) In that the Secretary of Labor has not brought the instant action, this court has jurisdiction only if it can be found under § 102.
Plaintiff contends that the court has jurisdiction under § 102, arguing that the non-Communist affidavit requirement is directly related to rights of free speech guaranteed under 29 U.S.C. § 411(a) (2) (§ 101) and has effects which reach far beyond mere eligibility for elective office. That argument is persuasive. One very similar to it, however, was rejected by the Supreme Court in Calhoon v. Harvey, 379 U.S. 134, 85 S.Ct. 292, 13 L.Ed.2d 190 (1964). The Court noted there that jurisdiction under § 102 cannot "be upheld by reliance in whole or in part on allegations which in substance charge a breach of Title IV, union election rights" (at p. 138, 85 S.Ct. at p. 295), and held that "possible violations of Title IV of the Act regarding eligibility for union office are not relevant in determining whether or not a district court has jurisdiction under § 102 of Title I of the Act" (at pp. 139-140, 85 S.Ct. at p. 296).
Colpo v. Highway Truck Drivers and Helpers, Local 107, 201 F.Supp. 307, 309 (D.Del.1961), adequately summarizes the jurisdictional problem which is at issue here:
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Driscoll v. International Union of Op. Eng., Local 139
...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 dist......
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Burton v. American Fed'n of Gov't Emps.
...when it is 'clothed with governmental authority.'" Defendants' Memo at 11 (quoting Driscoll v. International Union of Operating Engineers, Local No. 139, 339 F. Supp. 757, 760 (D.Wis. 1972)). This exception has its roots in cases brought under 42 U.S.C. §1983, in which the Supreme Court hel......