Fulk v. United Transp. Union, 95-1953

• Decision Date: 18 April 1996
• Docket Number: No. 95-1953,95-1953
• Parties: 152 L.R.R.M. (BNA) 2011, 131 Lab.Cas. P 11,562 Jesse FULK and Donald Cearlock, Plaintiffs-Appellees, v. UNITED TRANSPORTATION UNION, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 733

81 F.3d 733

152 L.R.R.M. (BNA) 2011, 131 Lab.Cas. P 11,562

Jesse FULK and Donald Cearlock, Plaintiffs-Appellees, v. UNITED TRANSPORTATION UNION, Defendant-Appellant.

No. 95-1953.

United States Court of Appeals, Seventh Circuit.

Argued Dec. 1, 1995.

Decided April 18, 1996.

Appeal from the United States District Court for the Central District of Illinois, Springfield Division. No. 93 C 3278--Richard Mills, Judge.

James P. Baker (argued), Springfield, IL, for Plaintiffs-Appellees.

William K. Cavanagh, Cavanagh & O'Hara, Springfield, IL, Kevin C. Brodar (argued), United Transp. Union, Cleveland, OH, for Defendant-Appellant.

Before CUMMINGS, CUDAHY, and FLAUM, Circuit Judges.

CUDAHY, Circuit Judge.

The United Transportation Union (UTU) appeals the district courts denial of its motion for summary judgment in a suit brought by two of its member railroad workers, Jesse Fulk and Donald Cearlock. The plaintiffs challenged the voting method employed by the Union to dispose of certain "productivity funds." The claim was brought under the equal rights provision of the Labor-Management Reporting and Disclosure Act (LMRDA). 29 U.S.C. § 411(a)(1). The plaintiffs allege that the voting procedure which was used to decide the fate of these funds discriminated against them because of its purported bias in favor of those holding a minority viewpoint.

Following the district court's denial of its motion for summary judgment, UTU filed a motion for certification pursuant to 28 U.S.C. § 1292(b) which was granted by the district court. UTU then filed a petition for permission to appeal, which we granted on April 7, 1995. Having heard the appeal, we now reverse the district court's denial of summary judgment.

I. Factual Background

UTU represents certain workers employed by the Norfolk Southern Railroad (the Railway). These workers are grouped by the Railway into several geographic districts, known as "seniority districts." Plaintiffs were members of the Springfield District. The Union membership was also divided into several, considerably larger, geographical units, known as general committees of adjustment (GCAs), which in turn were comprised of local subcommittees. Plaintiffs were also members of the same general committee of adjustment, which embraces several seniority districts.

This dispute arose when UTU brought up for membership vote a proposed modification of its agreements with the Railway. The "crew consist" agreement, covering conductors, brakemen and yardmen, governs the size of the crew used to operate each train. The original agreement, adopted in 1984, allowed the Railway to reduce the crew size from two brakemen and a conductor to one brakeman and one conductor as workers retired or otherwise left the Railway's employ. As a complement to the reduction in crew size, the Railway agreed at that time to share the resulting cost savings with the workers. Whenever a train ran with only two crew members, the Railway paid $53.25 into a "productivity fund," which was credited to the workers. A separate productivity fund was maintained for each seniority district. The amount paid into each fund depended on the number of trains in that particular district which had been operated with two-member crews.

The modifications disputed here were negotiated in 1991. There were two modifications proposed: First, the crew consist agreement was to be modified to allow the Railway to operate with one-person crews when the size of the work force within a particular seniority district had declined sufficiently. Second, the productivity funds were to be eliminated. In their place, the Railway would make a one-time payment in December 1991 of $20,000 to each employee and an additional payment of $40,000 to each employee upon death, retirement or termination of employment.

The two parts of the proposal were presented separately to the membership for approval. If the membership failed to approve the modification to the crew consist agreement, the whole plan was to be abandoned. However, if the crew reduction were approved, it would go into effect whether or not there was a vote approving the productivity fund buyout.

The union leadership decided to implement a different voting procedure for each of the two proposals. The reduction in crew size was put to an aggregate vote of all members of a particular GCA. Votes were tallied within each craft (conductor, brakeman and yardman). Acceptance of the proposal by a majority of each craft's workers was required to pass the new crew consist agreement. In the event, the crew consist agreement was approved by the membership.

The union leadership took a different approach to the productivity fund buyout. The buyout was put to an independent vote in each seniority district, with the result in each district determining the fate of that district's productivity fund. The district by district voting procedure was justified by the fact that the value of the funds varied from district to district, as did the relative proportion of older workers to younger workers. Within each district, a majority of each craft was again required to approve the proposal. The results of the productivity fund buyout vote were mixed, with some districts approving and others rejecting the proposal. Six hundred votes in all were cast within the GCA. Among those voters, the buyout received approval by nearly two-thirds of those voting in each craft. In the Springfield district, however, the proposal failed to carry the vote among brakemen and therefore was defeated.

Plaintiffs Fulk and Cearlock complain that the district by district voting procedure violated Article 85 of the Union Constitution which reads:

The General Chairperson must poll the entire membership holding seniority and working in the craft involved on the property by mail referendum ballot prior to signing any system agreements and be governed by the majority of the votes cast.

Union Constitution, UTU App. at 41.

The Union disputes the plaintiffs' interpretation of the Constitution, the issue being whether the productivity fund buyout was a "system agreement." For purposes of summary judgment, we assume that the Union Constitution was violated by the procedure. The issue before us, then, is whether the district by district voting procedure, even assuming it broke Union rules, infringed upon the equal rights guaranteed by the LMRDA.

II. Analysis

The equal rights section of the LMRDA states:

Every member of a labor organization shall have equal rights and privileges within such organization to nominate candidates to vote in elections or referendums of the labor organization, to attend membership meetings, and to participate in the deliberations and voting upon the business of such meetings, subject to reasonable rules and regulations in such organization's constitution and bylaws.

29 U.S.C. § 411(a)(1).

Analysis of the compliance of union practice with this section proceeds in two steps: First, the court must determine whether every member was given "equal rights and privileges." If not, the court must decide if the inequality is a result of "reasonable rules and regulations." Because we assume here that the productivity fund voting procedure violated the Union Constitution, we need only address the first question: Were the plaintiffs denied equal rights and privileges by the procedure used?

The interpretation of § 411(a)(1) has generated a certain amount of controversy among the courts of appeal. In Calhoon v. Harvey, 379 U.S. 134, 138-39, 85 S.Ct. 292, 295-96, 13 L.Ed.2d 190 (1964), the Supreme Court rejected an attempt to stretch the language of § 411(a)(1) to encompass attacks on the general reasonableness and validity of union rules and regulations. There, the Court set out the general principle that infraction of § 411(a)(1) requires discrimination. The Court noted that the LMRDA equal rights provision "is no more than a command that members and classes of members shall not be discriminated against in their right to nominate and vote." Id.

In the wake of that decision, the circuits have struggled to determine the extent to which the right to nondiscrimination encompasses a right to a meaningful vote. The Ninth Circuit, in Ackley v. Western Conference of Teamsters, 958 F.2d 1463 (9th Cir.1992), has taken a hard line, ruling that, even if a union provides incomplete or biased information upon which members rely in making their voting decisions, there is no violation of § 411(a)(1), so long as all members are given the same information. That court opined that the equal rights provision "is an anti-discrimination provision, pure and simple" which "prohibits discrimination against people, not against ideas." Id. at 1473-74.

The Fifth Circuit, on the other hand, allowed a claim to be brought under § 411(a)(1) which alleged that all members had been deprived of their right to vote on substantial changes in the collective bargaining agreement. Christopher v. Safeway Stores, Inc., 644 F.2d 467 (5th Cir.1981). That court "decline[d] the Union's invitation to read this statute to mean that a right created or protected by the statute may be abridged with abandon provided there is an even-handed denial to all." Id. at 470.

This court has strictly followed the requirement that an action under § 411(a)(1) allege discrimination against some union members. Lux v. Blackman, 546 F.2d 713, 716 (7th Cir.1976); Grant v. Chicago Truck Drivers, Helpers & Warehouse Workers Union, 806 F.2d 114, 117 (7th Cir.1986). We have rejected the approach of the Christopher court, finding no violation of § 411(a)(1) when a union failed entirely to submit a matter to a vote. Talbot v. Robert Matthews Distributing Company, 961 F.2d 654, 666 (7th Cir.1992). We have never confronted the question presented in Ackley, whether a union can violate § 411(a)(1) by biasing the information received by members before the vote is taken, nor need we decide it today. We have,...