Gilvin v. Fire
| Citation | 259 F.3d 749 |
| Decision Date | 21 August 2001 |
| Docket Number | No. 00-7221,00-7221 |
| Parties | (D.C. Cir. 2001) Ron Gilvin, Appellant v. Edward Fire, Individually and as President of the International Union of Electronic, Electrical Salaried, Machine and Furniture Workers, et al., Appellees |
| Court | United States Courts of Appeals. United States Court of Appeals (District of Columbia) |
Appeal from the United States District Court for the District of Columbia (No. 99-cv-00530) [Copyrighted Material Omitted] James F. Wallington argued the cause and filed the brief for appellant.
Thomas M. Kennedy argued the cause for appellee. With him on the brief was Peter Mitchell.
Before: Henderson, Tatel, and Garland, Circuit Judges.
Opinion for the Court filed by Circuit Judge Garland.
Ron Gilvin challenges his suspension and subsequent removal from the office of SecretaryTreasurer of the International Union of Electronic, Electrical, Salaried, Machine and Furniture Workers, AFL-CIO (IUE). Gilvin asserts that the IUE, the IUE's President, and members of the IUE's Executive Board violated federal labor law and the IUE's constitution by suspending and removing him in retaliation for protected speech and participation in a civil trial. The district court dismissed part of Gilvin's lawsuit for failing to state a claim, and granted summary judgment against the remainder. We affirm in part and reverse in part.
In November 1996, the IUE elected defendant Edward Fire to the office of IUE President and elected plaintiff Gilvin, Fire's political opponent, to be Secretary-Treasurer. Both took their posts in January 1997 and were scheduled to serve until December 31, 2000. On June 10, 1998, however, the IUE Executive Board suspended Gilvin with pay. And on August 26, 1998, the IUE's Trustees certified petitions from two local unions seeking Gilvin's recall from office. Gilvin lost a recall election on October 9, 1998, and was removed as IUE Secretary-Treasurer.
Gilvin and Fire came into conflict soon after their 1996 election.1 In April 1997, Fire, backed by the Executive Board, proposed transferring money from the IUE's Strike Insurance Fund to its General Fund in order to reduce the union's operating deficit. Gilvin opposed the proposal on the ground that it would weaken the Strike Fund and conceal the union's failure to maintain a balanced budget. Gilvin expressed that opposition in letters to IUE local union presidents and members, which characterized the proposal as a "raid" on the Strike Fund, J.A. 1161, "a reckless change in the financial structure of our Union," id. at 1163, and an effort to grant Fire "dictatorial powers," id. at 1161. The IUE membership eventually adopted Fire's proposal. Thereafter, at an Executive Board meeting on April 21, 1997, defendant Board members made clear, in no uncertain terms, their displeasure with Gilvin's efforts to oppose the Strike Fund plan.2
In May 1997, Gilvin began questioning increases in IUE subsidies to IUE District Councils, as well as raises and travel reimbursements approved by President Fire. Gilvin charged that checks for those expenditures were issued without his knowledge or approval. Article VII(C) of the IUE constitution requires that "[a]ll checks of the Union must bear the signatures of the President and the Secretary Treasurer," and Gilvin had previously authorized the union's comptroller to utilize a facsimile of his signature on IUE checks. In August 1997, Gilvin wrote Fire and the comptroller revoking that authorization, "[i]n order to assure that no funds of the International are disbursed for other than legitimate purposes and with adequate substantiation." Id. at 1175. Gilvin explained his decision in a letter to the Executive Board and local unions dated September 10, 1997. Calling the raises and travel expenditures a "raid on the International treasury," id. at 1183, he wrote:
I will not sign any check until I can verify that all International expenditures are properly authorized and substantiated.... I consider it my Constitutional responsibility as Secretary-Treasurer to provide a vigilant, meaningful financial oversight on behalf of the IUE membership, and I won't be bullied into doing less!
Id. at 1184 (emphasis omitted).
Fire responded with his own letter to the members of the IUE. He wrote that Gilvin "always has had the ability and always was expected to see to it that expenditures are made under proper accounting procedures and have proper documentation," acknowledging that "[t]hose are the basic responsibilities of the Secretary-Treasurer." But Fire declared that "if he refuses to sign a check, there will be a serious constitutional problem." Id. at 1189. Fire also wrote that for "Gilvin to continue to characterize the [Strike Fund] plan as a 'raid' on the ... Fund is an insult to our members and our leadership." Id. at 1191. On October 15, 1997, Gilvin reauthorized the use of his facsimile signature, with the understanding that the IUE's comptroller would provide him with a daily register of all checks and with supplemental documentation upon request. Id. at 1199. On November 13, 1997, the Executive Board held a meeting at which several members again sharply decried Gilvin's letters, and suggested that something had to be done to stop him from issuing more.3
In December 1997, Gilvin wrote an anonymous letter to the "Hoekstra Committee," a Congressional subcommittee chaired by Representative Peter Hoekstra that was investigating allegations of union corruption. Gilvin's letter alleged that three IUE checks, totaling $163,135.98, had been issued without an identifiable union purpose. Complaint WW 48, 49. Gilvin did not inform anyone at the IUE that he had sent the letter. J.A. 449-62.
On January 5, 1998, Gilvin was present at the United States District Court for the Southern District of Ohio, during the trial of a lawsuit brought against the IUE by Gilvin's home local, IUE Local 801. Fire and other IUE officials saw Gilvin in the courtroom. Several weeks later, Fire sent Gilvin a memorandum asking him to explain why his weekly attendance record reported that he was away from the office that day on "Union Business." Id. at 1208. In a one-sentence written reply, Gilvin responded that he had been subpoenaed. Id. at 1210. At the next Executive Board meeting, held on March 10, 1998, Gilvin was attacked by defendant Board members who interpreted his appearance in the courthouse as reflecting a willingness to testify against the IUE.4
On April 26, 1998, Gilvin sent a letter to an IUE member, opposing a proposed division of Local 801 into two separate locals. Gilvin attributed the proposal to Fire, and wrote that the President "should keep his nose out of the local's politics." Id. at 1221. He also declared that "President Fire has his own problems" in the form of an "International financial crisis," charging that the union was operating at a deficit, that operating expenses were increasing, and that the Strike Fund had suffered a "$6,459,127.56 drop in one year." Id. Two days later, Gilvin demanded Fire's authorization to mail the letter to other IUE members at IUE expense, and Fire refused. On April 30, 1998, the six IUE District Presidents, who also served on the IUE's Executive Board and are defendants here, responded to Gilvin's April 26 letter with the following joint statement:
1. Ron Gilvin is hereby CENSORED [sic] for his publication and dissemination of false and scurrilous charges.
2. Ron Gilvin is directed to adhere to the IUE Constitution and to serve at the direction of the President.
3. Ron Gilvin is put on notice that if he continues these scurrilous attacks the undersigned will support the efforts now being considered by members outraged by his actions to recall him from office.
4. Ron Gilvin['s] right to engage in legitimate debate over the issues facing this union must be conducted in the future in a manner which sticks to the issues and avoids baseless slander.
The conflict between Gilvin and the defendants continued to escalate in May of 1998. On May 20, Gilvin sent Fire a memorandum, seeking his assistance in auditing the financial records of the IUE's districts, particularly the "wage and operating subsidies" paid to the districts by the International. Id. at 1232. Fire refused to authorize an audit, telling Gilvin that, under the IUE constitution, the Secretary-Treasurer may perform a district audit only if the district "has been delinquent for thirty days or more or ... when there is reason to believe that [the district's] financial affairs ... are being mishandled or a defalcation has occurred." Id. at 1234 (quoting IUE Const. Art. XIII(N)). Fire directed Gilvin to provide, immediately and in writing, any information he possessed pertaining to any such misconduct. Id.
Gilvin again revoked permission for the use of his facsimile signature on May 27, 1998, stating that he would personally sign any check that was accompanied by "proper vouchers or other backup" or that he could "verify through audits as being constitutionally proper and legal." Id. at 1263. The next day, Fire wrote Gilvin a memorandum stressing that the Secretary-Treasurer was not authorized "to determine the spending policies of the International Union," and further suggesting that if Gilvin attempted to do so, he would cause "a serious constitutional crisis." Id. at 250. On June 2, 1998, Gilvin refused to sign subsidy checks to the six districts. In a letter to the comptroller, Gilvin stated that he had sought to verify by audit "the validity and purpose of these extraordinary payments," but had "been refused my constitutional authority to account for these expenditures." Id. at 1331. "Until a resolution is reached," Gilvin said, "I do not intend to process any form of supplements [i.e., subsidies] that I cannot account for, and [that] I have reason to ... believe violates our Constitution or has legal implications." Id.
Fire convened the ...
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