INTERNATIONAL BRO. OF BOILERMAKERS, ETC. v. Braswell

• Decision Date: 12 January 1968
• Docket Number: No. 23776.,23776.
• Citation: 388 F.2d 193
• Parties: INTERNATIONAL BROTHERHOOD OF BOILERMAKERS, IRON SHIPBUILDERS, BLACKSMITHS, FORGERS AND HELPERS, Appellant, v. E. T. BRASWELL, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

388 F.2d 193 (1968)

INTERNATIONAL BROTHERHOOD OF BOILERMAKERS, IRON SHIPBUILDERS, BLACKSMITHS, FORGERS AND HELPERS, Appellant, v. E. T. BRASWELL, Appellee.

No. 23776.

United States Court of Appeals Fifth Circuit.

January 12, 1968.

Donald E. Brutkiewicz, Mobile, Ala., John J. Blake, Kansas City, Kan., for appellant.

Robert E. McDonald, Jr., Mobile, Ala., for appellee.

Before WISDOM and GODBOLD, Circuit Judges, and McRAE, District Judge.

WISDOM, Circuit Judge.

In this action against the International Brotherhood of Boilermakers, Iron Shipbuilders, Blacksmiths, Forgers and Helpers, AFL-CIO, the plaintiff, E. T. Braswell, alleges that he was wrongfully expelled from the Union. He asserts that this expulsion was in violation of his rights under the "Bill of Rights of Members of Labor Organizations" of the Labor-Management Reporting and Disclosure Act of 1959 (LMRDA), 29 U.S.C. § 401 et seq. He relies particularly on 29 U.S.C. § 411(a) (5):

(5) Safeguards against improper disciplinary action. — No member of any labor organization may be fined, suspended, expelled, or otherwise disciplined except for nonpayment of dues by such organization or by any officer thereof unless such member has been (A) served with written specific charges; (B) given a reasonable time to prepare his defense; (C) given a full and fair hearing.

(b) any provision of the constitution and bylaws of any labor organization which is inconsistent with the provisions of this section shall be of no force or effect.

Braswell seeks compensatory and punitive damages only, and not reinstatement. The jury returned a verdict in favor of the plaintiff in the amount of $12,500, and the Court entered a judgment in that amount. The Union appeals. We affirm.

* * *

Braswell had been a member of the International since 1909, and at the time of his expulsion was a member in good standing of Local 112 in Mobile, Alabama. In the fall of 1960 there was considerable dissension in the Union over the local business manager's allegedly discriminatory assignment of jobs.¹ On October 5, 1960, the business manager, Herman B. Wise, after reading his morning mail, left his office for a local plant where he intended to engage in union business. As he walked out, George Hardeman, one of the members of the Union, met him, handed him a telegram and asked Wise, "Can you explain this to me?" Before Wise could finish reading it, Hardeman struck him in the face. Several other members were "standing around". One clutched at Hardeman, but another threatened to "drop him in his tracks" if he did not release Hardeman. Braswell took no part in the actual fighting but remarked to the man holding Hardeman, "You keep your hands off of him." The police were called. As Wise recounted the incident to a police officer, he pointed to Braswell and said, "And this man was standing here." At this point Braswell struck Wise in the face, breaking his nose.

Wise charged Braswell, Hardeman, and another member with violations of Article 13, Section 1 of the Subordinate Lodge Constitution² and Article 12, Section 1 of the Subordinate Lodge Bylaws.³ A local trial panel conducted a hearing on the charges, found Braswell guilty, and ordered his explusion. He appealed to the Executive Council of the International Union. After another hearing, the Council affirmed the decision of the trial board. Braswell made a final appeal to the President of the International. This appeal was also rejected. He was then formally expelled from the Union. None of these decisions states whether it is based on both or only one of the violations charged. On September 12, 1963, Braswell filed an amended complaint in the district court alleging that the expulsion was wrongful under LMRDA and asking for damages.

I. Jurisdiction

The Union challenges the jurisdiction of the district court over the subject matter on the ground that the National Labor Relations Act, 29 U.S.C. § 151 et seq., preempted the cause of action.

There may be certain ambiguities in LMRDA, but the act does unequivocably state that the rights secured by the bill of rights are to be enforced through private suits and that such suits shall be brought in the district courts.⁴ Section 102 of the LMRDA, 29 U.S.C. § 412, provides:

Civil action for infringement of rights; jurisdiction: Any person whose rights secured by the provisions of this subchapter have been infringed by any violation of this subchapter may bring a civil action in a district court of the United States for such relief (including injunctions) as may be appropriate. Any such action against a labor organization shall be brought in the district court of the United States for the district where the alleged violation occurred, or where the principal office of such labor organization is located.

At the same time, under Section 103, 29 U.S.C. § 413, union members retain whatever rights and remedies they may have "under any State or Federal law or before any court or other tribunal, or under the constitution and bylaws" of their unions.

The Union relies on San Diego Building Trades Council, Millmen's Union v. Garmon, 1959, 359 U.S. 236, 79 S.Ct. 773, 3 L.Ed.2d 775. In Garmon the Court held:

"When an activity is arguably subject to § 7 and § 8 of the National Labor Relations Act, the States as well as the federal courts must defer to the exclusive competence of the National Labor Relations Board if the danger of state interference with national policy is to be averted." 359 U.S. at 245, 79 S.Ct. at 780. (emphasis added).

The Union suggests that the expulsion of Braswell was "arguably" an unfair labor practice under the NLRA, and that exclusive jurisdiction therefore lies with the NLRB. This assertion is erroneous on two counts.

First, the purpose of the Garmon rule is to prevent conflicts between federal and state policy. Here, if there is any conflict at all, it is between two federal organs expressing federal policy, and Congress has declared that federal courts, and not the National Labor Relations Board are to have the primary role. "Garmon * * * merely rationalizes the problems of coexistence between federal and state regulatory schemes in the field of labor relations * * *. The purpose of Congress is the ultimate touchstone." Retail Clerks International Association, etc. v. Schermerhorn, 1963, 375 U.S. 96, 103, 84 S.Ct. 219, 222, 11 L.Ed.2d 179.

Second, the cause of action here involved is not arguably subject to the jurisdiction of the Board. When a dispute is solely between the member and his union and does not directly concern rights granted by the NLRA, the preemption doctrine does not come into play. International Association of Machinists v. Gonzales, 1958, 356 U.S. 617, 78 S.Ct. 923, 2 L.Ed.2d 1018; Local 100 of United Association of Journeymen and Apprentices v. Borden, 1963, 373 U.S. 690, 83 S.Ct. 1423, 10 L.Ed.2d 638; Local No. 207, International Association of Bridge, Structural and Ornamental Iron Workers Union v. Perko, 1963, 373 U.S. 701, 83 S.Ct. 1429, 10 L.Ed.2d 646. See also Vaca v. Sipes, 1967, 386 U.S. 171, 87 S.Ct. 903, 17 L.Ed.2d 842.

The question is one of congressional intent — did Congress intend to give the NLRB exclusive primary jurisdiction over the subject matter? In both Borden and Perko the Court answered "yes". But neither the preemption doctrine nor the primary jurisdiction doctrine has constitutional bases. A clear indication therefore of congressional intent to confer jurisdiction on the federal district courts to award damages for actions — even if these actions were arguably violations of the NLRA and within the jurisdiction of the NLRB — would control.⁵

The result is in accord with other federal courts which have passed on the question. See Addison v. Grand Lodge of International Association of Machinists, 9 Cir. 1962, 300 F.2d 863; Parks v. International Brotherhood of Electrical Workers, 4 Cir. 1963, 314 F.2d 886, 922-923, cert. denied, 372 U.S. 976, 83 S.Ct. 1111, 10 L.Ed.2d 142; Rekant v. Shochtay-Gasos Union Local 446 of Amalgamated Meat Cutters and Butcher Workmen of North America, 3 Cir. 1963, 320 F.2d 271, 273-275; Grand Lodge of International Association of Machinists v. King, 9 Cir. 1964, 335 F.2d 340, 346-347; cert. denied, 379 U.S. 920, 85 S.Ct. 274, 13 L.Ed.2d 334; Burns v. United Brotherhood of Carpenters and Joiners of America, Local No. 626, D.Del.1962, 204 F.Supp. 599, 601-602.⁶

The appellant's attempt to argue that the conduct of which appellee complains constitutes an unfair labor practice (coercion of an employee in the exercise of his rights or of an employer to discriminate) is of no relevance. Even if the conduct is arguably subject to the NLRA (which is doubtful), it is also a violation of the LMRDA Act. A clear Congressional directive that federal courts have jurisdiction to entertain suits for damages has precedence over application of the primary jurisdiction rule. We hold that the district court had jurisdiction of this action under Section 412.⁷

II. Jury Trial

In his amended complaint, Braswell demanded a trial by jury. The Union made a timely motion to strike this demand. The district court denied the motion, and the case was heard and decided by a jury. The Union renews here its objection to the jury trial.

The Act itself does not indicate whether a jury trial is to be granted for suits under Section 412. The language of the jurisdictional grant, that "such relief (including injunctions) as may be appropriate" may be afforded indicates that Congress contemplated the entire range of remedies, both legal and equitable. Braswell sought only damages; he did not ask to be reinstated in the Union which had expelled him. In traditional terms, then, his cause of action was purely "legal" in nature.

We find only two federal cases on the question whether a jury trial is required in an action for wrongful expulsion under LMRDA. In McCraw v. United Ass'n of Journeymen and Apprentices, 1965, 341 F.2d 705, 709-710,...