Howard v. United Ass'n of Journeymen and Apprentices of Plumbing and Pipe Fitting Industry, Local No. 131

• Decision Date: 30 June 1977
• Docket Number: No. 76-1377,76-1377
• Citation: 560 F.2d 17
• Parties: 95 L.R.R.M. (BNA) 3207, 82 Lab.Cas. P 10,030 Kevin HOWARD, Plaintiff, Appellant, v. UNITED ASSOCIATION OF JOURNEYMEN AND APPRENTICES OF the PLUMBING AND PIPE FITTING INDUSTRY, LOCAL # 131, Defendant, Appellee.
• Court: U.S. Court of Appeals — First Circuit

Page 17

560 F.2d 17

95 L.R.R.M. (BNA) 3207, 82 Lab.Cas. P 10,030

Kevin HOWARD, Plaintiff, Appellant, v. UNITED ASSOCIATION OF JOURNEYMEN AND APPRENTICES OF the PLUMBING AND PIPE FITTING INDUSTRY, LOCAL # 131 Defendant, Appellee.

No. 76-1377.

United States Court of Appeals First Circuit.

Argued March 2, 1977.

Decided June 30, 1977.

Edward T. Clancy, with whom Fisher, Parsons, Moran & Temple, Dover, N. H., was on brief, for plaintiff, appellant.

Robert Christy, Manchester, N. H., with whom Christy & Tessier, Manchester, N. H., was on brief, for defendant, appellee.

Before COFFIN, Chief Judge, MOORE, ^* and CAMPBELL, Circuit Judges.

LEVIN H. CAMPBELL, Circuit Judge.

Kevin Howard sued under 29 U.S.C. § 412 ¹ for damages and reinstatement as a member of Local # 131, United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry ("Local 131" or "the Local"). He complained that he was expelled from the Local without any of the procedural safeguards required by section 101(a)(5) of the Labor-Management Reporting and Disclosure Act (LMRDA), 29 U.S.C. § 411(a)(5). ² The Local defended on the ground that as Howard's expulsion was for nonpayment of dues, no such procedures were required. After an evidentiary hearing, the district court granted summary judgment in favor of Local 131. This appeal followed. The only issue is whether the Local may assert Howard's nonpayment of dues as a basis for expulsion where it contributed to, and did nothing to rectify, Howard's mistaken belief that the Local had already severed his connections for other reasons, so that to pay dues would have been a futile act.

Howard, in 1971, had entered into an "Apprenticeship Agreement" with the Manchester Plumbers & Steamfitters Joint Apprenticeship Committee (JAC), under which the JAC contracted to "employ and teach" Howard the trade or craft of plumber and steamfitter. Established under state law, the JAC is composed of four employer and four employee representatives. See N.H.Rev.Stat.Ann. § 278:7. Under Howard's agreement, patterned on state law, see id. §§ 278:1, 3, his apprenticeship term was to last five years, and he was found to take 144 hours of related instruction annually. After a six-month probationary period, either party could terminate the agreement "by submitting written notification of termination to the approving agency (the New Hampshire State Apprenticeship Council)." The agreement was signed both by Howard and the Secretary of the JAC, one William G. Lavoie, an employee member who was also a member though not an officer of Local 131.

While the JAC is not in any formal sense a part of Local 131, it works closely with the Local. The JAC's employee representatives were members of the Local, and the Business Manager of Local 131 attended JAC meetings as a non-voting member. And while, as the district court observed, "(t)here is no requirement that a person desiring to take the plumber and pipe fitter apprentice training program be a member of the Union", the Business Manager of Local 131 testified that the apprentices were part of the union. He went so far as to say that Local 131 considers the JAC to be the "Committee on Apprentice Training" which section 127 of the constitution of the international union requires every local to establish. Section 162 of the union constitution provides, "Cancellation of an apprentice's agreement, for a just cause, after notice and hearing by the apprenticeship committee, shall automatically cancel his membership" in the international and the local.

In June of 1972, at the end of his probationary period under the apprenticeship agreement, Howard joined Local 131 and began paying monthly dues. He continued to do so through March 1975. Under section 176 of the constitution, a member in arrears for dues for a period of six-months "shall stand expelled".

The course of Howard's apprenticeship did not proceed smoothly. Minutes of an April 30, 1973 meeting of the JAC refer to his lack of incentive. Written on union stationery, the minutes were signed "William G. Lavoie/Secretary". The minutes for the February 12, 1974 meeting, also on union stationery, relate that Howard had been brought before the JAC and reprimanded "for his behavior on the job as well as in school". It was also noted, "Kevin Howard was given a last warning. If he appears before this committee again, his apprenticeship will be terminated."

In December 1974 Howard pled guilty in court to a charge of possession of marijuana, and was sentenced to one year's imprisonment with five months suspended. On February 4, 1975, Mr. William Littlefield, the state and federal coordinator for apprenticeship training, wrote the Business Manager of Local 131 that four of its apprentices, including Howard, had missed a number of classes. He said he understood "that after three absences without good reason an apprentice is dropped from the school", and requested the Local to look into the matter and reply at its earliest convenience. The next significant event appears in the minutes of the meeting of the JAC on March 5, 1975:

"At this meeting we discussed Kevin Howard. After a lengthy discussion it was a unanimous decision to cancel Kevin's apprenticeship. Kevin is presently serving a 7 month term in Strafford County Jail on a drug charge. We felt that Kevin is a burden to this Committee and a detriment to the people around him.

"Before I send Kevin a registered letter, cancelling his agreement, I will discuss it with Mr. Littlefield."

The following day, Howard appeared at the union office, while on a work release program, and for the last time paid his dues, through March. He testified that he was told at that time by the Business Manager that "they had a meeting about me, and he didn't specifically say if it was the Joint Apprenticeship or Executive Branch that had a meeting, and he said the results of the meeting were that they decided to keep me on as a member." On March 20, 1975, Lavoie wrote Howard the following registered letter on union stationery:

"At a recent meeting held by the Joint Apprenticeship Committee, it was a unanimous decision to terminate your apprenticeship.

"You now have two drug violations charges against you, and this alone was enough to convince this Committee that your irresponsibility and poor behavior warrants your termination.

"Your conduct in the past few years on the job has not been up to par, resulting in the fact that many contractors in the area are unwilling to hire you.

"All of this was brought to your attention and discussed with you at two previous meetings.

"Your recent involvement in another drug violation, leaves the Committee no alternative. The safety and well being of fellow workers is of prime concern."

The letter was signed "William G. Lavoie/Secretary Joint Apprentice Comm."

On April 18, 1975 Howard's attorney wrote to Lavoie addressing him as "Secretary Joint Apprentice Committee, Local 131, 1671 Brown Avenue, Manchester, N.H." He said that he was entering an objection "to the action taken by your Committee in terminating Mr. Howard's apprenticeship" and requested "a copy of your Union rules and regulations which govern this matter" and a fair hearing "in which Howard has an opportunity to present his side of the story." Not hearing from Lavoie, the attorney reiterated the requests in a second letter sent on May 21 in which he referred to "your union's determination to terminate Mr. Howard's apprenticeship." Again there was no response. Howard testified that a month later he met Lavoie on a job site and "discussed the situation about what has happened to me, about being kicked out, terminated from the apprenticeship, and we also discussed some of the procedures . . . so I could get the plumber's license rolling for myself on my own."

The present action against the Local ³ was filed in July 1975. It was alleged, inter alia, "(t)hat on or about March 20, 1975, the Plaintiff was notified by mail by the Defendant that his apprenticeship in the said union was terminated"; "(t)hat on April 18, 1975, and again on May 22, 1975, the Plaintiff, through his attorney, notified the Defendant that the matter of Plaintiff's expulsion from the union be reviewed by the Defendant at a full and fair hearing"; and "(t)hat the Defendant has never responded to the Plaintiff's request that he be afforded a full and fair hearing." The "said expulsion order" was alleged to be "unlawful". Local 131 answered "that on March 20, 1975, a letter was forwarded to the plaintiff advising as follows: 'At a recent meeting held by the Joint Apprenticeship Committee, it was a unanimous decision to terminate your apprenticeship' etc." and "that (defendant) received two communications from plaintiff's attorneys, one dated April 14, 1975 and another dated May 21, 1975 but leaves the contents of said communications to the evidence."

The Local filed a separate motion to dismiss or for summary judgment a year later, in June, 1976. For the first time it asserted that "Howard's membership in Local Union No. 131 was not suspended or terminated for any reason other than his failure to pay union dues and his termination from membership in Local Union No. 131 did not occur until the latter part of September, 1975." ⁴ This was the view which the court adopted after a full evidentiary hearing. Since expulsion for nonpayment of dues does not require serving the member with written specific charges, giving him a reasonable time to prepare his defense, or affording him a full and fair...