Fulton Lodge No. 2 of Int. Ass'n of Mach. & Aero. Wkrs. v. Nix

• Decision Date: 28 July 1969
• Docket Number: No. 24571.,24571.
• Citation: 415 F.2d 212
• Parties: FULTON LODGE NO. 2 OF the INTERNATIONAL ASSOCIATION OF MACHINISTS AND AEROSPACE WORKERS, AFL-CIO, Appellants, v. Franklin NIX, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

415 F.2d 212 (1969)

FULTON LODGE NO. 2 OF the INTERNATIONAL ASSOCIATION OF MACHINISTS AND AEROSPACE WORKERS, AFL-CIO, Appellants, v. Franklin NIX, Appellee.

No. 24571.

United States Court of Appeals Fifth Circuit.

July 28, 1969.

J. R. Goldthwaite, Jr., Atlanta, Ga., James L. Highsaw, Jr., Edward J. Hickey, Jr., William J. Hickey, Washington, D. C., Adair, Goldthwaite, Stanford, Daniel & Horn, Atlanta, Ga., Plato E. Papps, Chief Counsel, Int. Ass'n of Machinists and Aerospace Workers, AFL-CIO, Washington, D. C., Mulholland, Hickey & Lyman, Washington, D. C., of counsel, for appellants.

William G. McRae, Atlanta, Ga., for appellee.

Before JOHN R. BROWN, Chief Judge, and AINSWORTH and GODBOLD, Circuit Judges.

GODBOLD, Circuit Judge:

This is an internal union free speech case governed by the Labor-Management Reporting and Disclosure Act of 1959.¹ The district court found that Appellee Nix was expelled from membership for the exercise of protected speech and ordered Fulton Lodge No. 2 and its international body, to reinstate Nix to full membership in the union and to refrain from further interference with his free speech rights. Nix v. Fulton Lodge No. 2, IAM, N.D.Ga.1967, 262 F.Supp. 1000.

We affirm in part and vacate in part.

The underlying facts are straightforward and undisputed. Nix was employed by the Grand Lodge of IAM as a press representative for the international union. He became a member of IAM, although membership was not a condition of employment, and affiliated with Fulton Lodge No. 2. His position with IAM was categorized as "staff employee." The staff employees were the only unit of IAM not organized and represented by an independent bargaining agent. Nix initiated an organizational campaign to form the IAM Representatives Association, an independent bargaining representative for the staff employees. The campaign extended for a year or more, with heat and passion not diminished by the fact that the employer was itself a union. Nix and IAM President Siemiller circulated mailings to the staff employees and to each other. Without attempting to catalog all the vigorous remarks and charges made and the industrial warfare that took place, they included charges by Siemiller that Nix was making threats against him and the Executive Council of the union and was subjecting the union to constant harassment and propaganda in the press and elsewhere. Siemiller charged that "Nix had made many false statements in the material that he has sent you while conducting his organizing campaign." Nix made a written charge that per diem was being paid by the union to employees in violation of the constitution, and demanded of Siemiller that he proceed to recover from Siemiller himself, other officers and members of the Executive Council, and the sureties on their bonds, union funds said to have been improperly paid out. Nix brought a § 8(a) (5) charge against IAM, then withdrew it. He made a series of charges of fraud and misconduct against a member of the Executive Council, and an investigating committee considered the charges and rejected them. Siemiller wrote Nix, implying that he might be discharged, stating that he and his "Associates on the Executive Council" were not justified in continuing Nix's employment if in their judgment he was not needed. Nix carried on a running argument with Siemiller about vacation, automobile mileage, exclusion of Nix from meetings, isolation of Nix from other employees, and a variety of other matters.

A representation case was brought before the National Labor Relations Board. The Board certified the Representatives Association as the appropriate bargaining unit and ordered an election.

After the Board order but before the election Nix wrote and disseminated to staff employees a letter stating inter alia that "Bob Quick, general chairman of United Airlines (then Capital) didn't hesitate to picket Grand Lodge when he thought Hayes former IAM President ordered him to trample on the rights of his members. You know what happened? They broke their necks getting down to settle things with Bob and get him off that sidewalk. Would Bob do it again? Ask him?" A second letter, responding to Quick's denial that he ever picketed the international, admitted that the information was derived from hearsay sources, but noted that, on confrontation by Nix, Quick did not deny the incident. These letters were only two of more than twenty mailings that Nix sent out in his organizational efforts.

The election was held and the Representatives Association won. Approximately a month later Siemiller notified Nix that he was fired. A few days later, September 6, 1966, Nix filed unfair practice charges against the union. The next day Bob Quick, a member of and president of an IAM local in California, invoked provisions of the IAM constitution (1966),² and charged Nix with misconduct in making the statements concerning Quick in the two letters described above. The alleged misconduct is that described by Art. L, § 3, which subjects a member to possible reprimand, fine, suspension and/or expulsion from membership after notice and hearing for, inter alia:

Circulating or causing in any manner to be circulated any false or malicious statement reflecting upon the private or public conduct, or falsely or maliciously attacking the character, impugning the motives, or questioning the integrity of any member or officer.³

The charges brought by Quick alleged misconduct in terms tracking the above language almost verbatim except for the insertion of the dates of the two Nix letters.

A hearing was conducted before a trial committee⁴ which knew of the pendency of the charges made by Nix to the NLRB. The committee found that Nix "did circulate or cause to be circulated a false and/or malicious statement reflecting upon Quick's private or public conduct, which statement falsely and/or maliciously attacked his character and integrity as a Union member." The committee recommended that Nix be expelled from membership. By overwhelming votes the Fulton Lodge membership sustained both the report and the recommended expulsion.

The trial committee noted in its report to the Fulton Lodge membership that it excluded from evidence in the misconduct proceedings "statements and/or documents which Nix tried to have admitted pertaining to his discharge from the Staff and his organizing campaign, which in our opinion as a Trial Committee, had nothing to do with this case." See Part III, infra.

After the trial committee hearing and before the local membership vote, Nix filed his complaint in district court without attempting to exhaust his appellate remedies under the IAM constitution.⁵

In the district court Fulton Lodge filed a three-pronged motion to dismiss: (1) district court jurisdiction was preempted by the unfair practice charge pending before the Board; (2) Nix waived his right to judicial review by his failure to exhaust his internal appellate remedies; (3) and Nix's statements, made in the context of an organizational campaign, were "extraunion" and consequently unprotected by the free speech provisions of the LMRDA. The motion was denied. On appeal Fulton Lodge raises the identical issues on specification of error, to which is added a fourth: (4) the district court erred in making its order applicable to the IAM Grand Lodge, i. e., to the international union as a whole.

The unfair practice proceedings were still pending when the district court entered its judgment below. Subsequently, but before submission of this appeal, the Board decision was rendered, finding that the discharges of Nix and others were not discriminatorily motivated but that after the Representatives Association was certified as bargaining agent IAM, by refusing to furnish it with requested information, breached its duty to bargain. IAM and Nix et al., 172 NLRB 239.

I. Preemption

Congress expressly provided two broad anti-preemption provisions in the LMRDA⁶ in response to objections initially raised by then Sen. John F. Kennedy (D-Mass.).⁷ This court has held that rights guaranteed under the LMRDA are not subject to preemption by the National Labor Relations Board. International Bhd. of Boilermakers, etc. v. Braswell, 5 Cir. 1968, 388 F.2d 193, 195-196.⁸

II. Exhaustion of remedies

We have no difficulty in concluding that the district court did not err in holding that the facts of Nix's case were such as not to require him to exhaust intra-union remedies under § 101(4) of LMRDA, 29 U.S.C. § 411(a) (4).⁹ Detroy v. American Guild of Variety Artists, 2 Cir. 1961, 286 F.2d 75, 79. The subsection does not establish a jurisdictional bar or absolute waiver to judicial review, but preserves the discretionary exhaustion doctrine which allowed pre-LMRDA courts to determine whether pursuit of internal remedies should be required in a given case. Simmons v. Avisco, Local 713, Textile Workers, 9 Cir. 1965, 350 F.2d 1012; Detroy, supra; cf. NLRB v. Industrial Union of Marine & Shipbuilding Workers, 1968, 391 U.S. 418, 88 S.Ct. 1717, 20 L.Ed.2d 706. The first review authority to whom Nix would have been required to apply was IAM President Siemiller, and the next review authority was the Executive Council. The continuing difficulties between Nix on the one hand and Siemiller and the Executive Council on the other fully justified the district court's conclusion that Nix was not required to attempt to exhaust his intra-union appellate remedies before seeking judicial relief. See Calagaz v. Calhoon, 5 Cir. 1962, 309 F.2d 248, 259-260. Cf. Glover v. St. Louis-San Francisco Ry. Co., 1969, 393 U.S. 324, 89 S.Ct. 548, 21 L.Ed.2d 519 (U.S. Jan. 14, 1969) (under Railway Labor Act). The union is the victim of its own appellate review structure.¹⁰

III. The offensive statements: protected or not?

Fulton Lodge presses the theory that statements made in the context of an intra-union organizational campaign are "extra-union" comments and not protected. The fallacy in...