Holschen v. Int'l Union Of Paint

• Decision Date: 12 March 2010
• Docket Number: No. 09-1122.,09-1122.
• Citation: 598 F.3d 454
• Court: U.S. Court of Appeals — Eighth Circuit
• Parties: Stephen J. HOLSCHEN, Appellant, v. INTERNATIONAL UNION OF PAINTERS & ALLIED TRADES/PAINTERS DISTRICT COUNCIL # 2, Appellee.

598 F.3d 454

Stephen J. HOLSCHEN, Appellant, v. INTERNATIONAL UNION OF PAINTERS & ALLIED TRADES/PAINTERS DISTRICT COUNCIL # 2, Appellee.

No. 09-1122.

United States Court of Appeals

Eighth Circuit.

Submitted: Sept. 22, 2009.

Filed: March 12, 2010.

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David C. Knieriem, argued, St. Louis MO, for Appellant.

Paul C. Hetterman, argued, St. Louis MO (James R. Kimmey, on the brief), for Appellee.

Before BYE, SMITH, and COLLOTON Circuit Judges.

BYE, Circuit Judge.

Stephen Holschen brought this action against the International Union of Painters & Allied Trades/Painters District Council # 2 (the Union) alleging several violations of the Labor Management Reporting and Disclosure Act (LMRDA), 29 U.S.C. §§ 401-53, as well as a state law claim for intentional interference with a valid business expectancy. The district court¹ dismissed the state law claim concluding it was preempted by Section 301 of the Labor Management Relations Act (LMRA), 29 U.S.C. § 185. The district court granted summary judgment on two LMRDA claims, and directed verdicts on the two remaining LMRDA claims following a jury trial. Holschen appeals raising a host of issues. We affirm.

I

The Union operates a non-exclusive hiring hall in the St. Louis area, making job referrals for its members to prospective employers. The collective bargaining agreements (CBAs) the Union enters into with prospective employers do not require the latter to hire union members, and union members are free to seek employment through the Union's job referral system or through their own efforts. Holschen, a painter, was a Union member and became a labor organizer for the Union in 2001.

In the 2003 election for the Union's business manager, Holschen supported Rich Bryan. Bryan lost the election to Kevin Kenny. Kenny promptly removed Holschen from his position as a labor organizer after the election, but Holschen remained a member of the Union. In January 2006, Holschen took a non-union position with the City of St. Louis (the City).

During the time between his removal as a labor organizer until he started his job with the City, Holschen contends Kenny conspired against him with other union members to "blackball" him by not referring his name to prospective employers in retaliation for Holschen's support of Bryan in the 2003 business manager election. For example, Max Robinson, a man whose son employed Holschen during this time period, testified Kenny approached him at a Christmas party and said things would be difficult for his son if he continued to employ Holschen. Holschen lost his job with Robinson's son a month later. Despite the alleged blackballing, Holschen was able to work 1183 hours in 2004 and 1088 hours in 2005, numbers somewhat lower but generally consistent with the number of hours he worked prior to becoming a labor organizer.²

The hostility between Kenny and Holschen continued after Holschen started working for the City. Holschen began efforts to organize the City's water department employees. The Union found out about Holschen's efforts and sent him a letter on February 8, 2006, telling him water department employees fell under the jurisdiction of another union, the Carpenters. The letter told Holschen to stop organizing because such efforts were considered a violation of the Constitution of the International Union of Painters and Allied Trades.

Around this same time, Holschen announced his intention to run against Kenny in the June 2006 election for Union business manager. In addition, Holschen learned the Union had been engaging in efforts to organize the City's lead abatement painters, who at the time did not fall under the jurisdiction of the Carpenters' union. In February 2006, the Union announced it had successfully organized the City's lead abatement painters.

Holschen believed Kenny and the Union were acting inconsistently by directing him to cease activities to organize the City's water department employees, while at the same time engaging in efforts to organize the City's lead abatement painters. Holschen made it known he was going to bring Union disciplinary charges against Kenny for not fulfilling his obligations to organize City workers. When Kenny learned of Holschen's intentions, he told Holschen he would respond by filing charges against Holschen for, among other things, continuing efforts to organize City workers after being told to stop in the February 8 letter and for filing baseless charges against Kenny. Holschen did, in fact, file charges against Kenny. Kenny responded by filing charges against Holschen.

On March 11, 2006, the Union sent letters to both Holschen and Kenny regarding the respective charges and notifying both a disciplinary hearing would be held on April 13, 2006. Holchen's letter informed him he would be allowed to "confront and properly challenge the testimony of any witnesses who testify against you and you will be allowed to challenge the validity of any evidence offered against you. You will also be allowed to present witnesses and offer evidence on your own behalf." Despite advising Holschen of these rights, the Union's standard operating procedure for disciplinary hearings is to sequester both witnesses and parties from the hearing room. If parties specifically request to be present while other witnesses testify for the purpose of hear-ing the evidence or cross-examining the witnesses, they are allowed to be present. Holschen testified he understood these standard operating procedures.

On the night of the disciplinary hearing Holschen was asked to wait in a separate room for his turn to testify. He testified he did not know the trial against him had started while he was waiting. A witness was waiting in the same room as Holschen however, so Holschen became aware his hearing had started when the witness, Michael Catiller, was summoned away from the waiting room to testify. At that point Holschen did not tell anyone involved in the hearing he wished to be present to hear the testimony or to cross-examine witnesses.

When it was Holschen's turn to present evidence, he was brought into the hearing room. He objected to one of the members of the trial board, Rich Dueckner, on the grounds Dueckner worked directly for Kenny. The trial board sustained Holschen's objection and removed Dueckner from the trial board. Holschen then testified on his own behalf. He also introduced a sworn statement of Rich Bryan. When Holschen was done giving his testimony, the chairman of the trial board, Dave Pohl, asked him if he was satisfied with his case and Holschen stated, "sure." Holschen never indicated there was more he wanted to say.

The trial board found Holschen "guilty" without specifying guilt as to any of the particular charges brought against him. The trial board fined him $15,000 and expelled him from the Union, giving him the right to appeal only if he first paid the fine.

Holschen filed an action in federal district court against the Union alleging a Title VII claim. The Union successfully moved to dismiss the Title VII claim. Holschen then filed a new complaint. The first count of the new complaint alleged several violations of the LMRDA. The second count alleged a state law claim for intentional interference with a valid business expectancy.

The district court dismissed the state law claim for interference with a valid business expectancy concluding it was preempted by the LMRA. In the alternative, the district court held the claim was subject to and barred by the six month statute of limitations found in Section 10(b) of the National Labor Relations Act (NLRA), 29 U.S.C. § 160(b). The district court later granted a motion for summary judgment on two of the four claims Holschen brought under the LMRDA. The two claims disposed of by summary judgment were a voting rights claim, and a claim the trial board conducting the disciplinary hearing was biased.

The two remaining LMRDA claims proceeded to a jury trial. The first claim was an alleged violation of Holschen's right to a full and fair hearing under the LMRDA, which fell under two subparts—one for an alleged violation of the right to cross-examine witnesses, and the second for an alleged violation of the right to present evidence. As to these claims, the district court ruled prior to trial that Holschen's remedy (should he prevail at trial) would be limited to a new disciplinary hearing rather than monetary damages. The second claim was an alleged violation of Holschen's free speech rights under the LMRDA, i.e., Holschen alleged the Union blackballed him for supporting Bryan in the 2003 business manager election.

After hearing Holschen's evidence, the district court granted the Union's motion for a directed verdict on both of the remaining LMRDA claims. With respect to the full-and-fair-hearing claims, the district court determined the Union's disciplinaryhearing comported with the requirements of due process. With respect to the freespeech claim, the district court determined the evidence did not show the Union—as opposed to Kenny individually—had taken any formal disciplinary action against Holschen in retaliation for his support of Bryan in the 2003 election. In addition, the district court determined Holschen failed to produce sufficient evidence connecting any of the Union's alleged retaliatory conduct to an injury (i.e., a loss of work).

Holschen filed a timely appeal raising a host of issues. First, Holschen argues the district court erred in dismissing his Missouri state law claim for interference with a valid business expectancy on the grounds it was preempted by the LMRA. Second he contends the district court erred in granting summary judgment on his trial board bias claim. Third, he claims the district court erred in directing a verdict on his full and fair hearing claims regarding cross-examination and presentation of evidence; if we agree, he further contends the district court erred in limiting his remedy to a...