LOC. 314, NAT. PO MAIL HAND. v. NAT. PO MAIL

• Decision Date: 28 September 1983
• Docket Number: No. 82-1451C(1).,82-1451C(1).
• Citation: 572 F. Supp. 133
• Parties: LOCAL 314, NATIONAL POST OFFICE MAIL HANDLERS, etc., et al., Plaintiffs, v. NATIONAL POST OFFICE MAIL HANDLERS, etc., et al., Defendants.
• Court: U.S. District Court — Eastern District of Missouri

572 F. Supp. 133

LOCAL 314, NATIONAL POST OFFICE MAIL HANDLERS, etc., et al., Plaintiffs, v. NATIONAL POST OFFICE MAIL HANDLERS, etc., et al., Defendants.

No. 82-1451C(1).

United States District Court, E.D. Missouri, E.D.

September 28, 1983.

Sheldon Weinhaus, St. Louis, Mo., for plaintiffs.

J.F. Souders, Charles A. Werner, St. Louis, Mo., William B. Peer, Washington, D.C., for defendants.

MEMORANDUM

NANGLE, Chief Judge.

This case is now before this Court on the motion of defendants to dismiss plaintiffs' complaint and the motions of plaintiffs for summary judgment. David D. Noce, United States Magistrate, was appointed to act as Special Master in this case and said motions were referred to him for his Report and Recommendation. The Magistrate recommended that defendants' motion be granted in part and denied in part, and that both of plaintiffs' motions for summary judgment be denied. The parties were given ten (10) days to file objections to the recommendations. Only plaintiffs filed objections. For the reasons stated herein, this Court accepts the recommendation of the Magistrate in part and rejects it in part.

I. THE FACTS:

Plaintiffs brought this action under various provisions of the Labor Management Reporting and Disclosure Act of 1959 (LMRDA), 29 U.S.C. § 401 et seq., and section 301 of the Labor Management Relations Act (LMRA), 29 U.S.C. § 185. Plaintiffs' claims for relief arise out of their associations with Local 314, National Post Office Mail Handlers, etc. (Local). Plaintiff Alford was the elected Local General President. Plaintiffs Gillespie, Bailey, Arrington and McAndrews were elected members of the Executive Board of the Local. Defendants Quinones, McGee and Clossen are the former Treasurer, Vice-President and Administrative Vice-President, respectively, of the Local. Defendant Johnson is the Trustee named by defendant International Union to run the Local. Defendants Ford, Sias and Bowen are Deputy Trustees.

The basic facts are that plaintiffs were removed from office after a Local trial board hearing on certain charges brought against them by defendant Quinones. These charges included, inter alia, misappropriation of funds. Prior to their removal plaintiffs had charged certain defendants with various breaches of their fiduciary duty to the union. These included, inter alia, the charge that defendant Quinones was being paid for work he did not perform, was stealing union property and was illegally removing union records. Plaintiffs appealed their removal to defendant National union, but to date said appeals have not been acted on. The failure to hear plaintiffs' appeals forms the basis of one of plaintiffs' claims. Subsequently, defendant International Union imposed a trusteeship on the Local to straighten out its financial affairs.

II. DEFENDANTS' MOTION TO DISMISS:

A. LMRDA CLAIMS:

Plaintiffs invoke five separate provisions of the LMRDA in their complaint: sections 101(a)(2), 101(a)(5), 301-306, 501 and 609. 29 U.S.C. §§ 411(a)(2), (5), 461-66, 501, 529. The Magistrate recommended that the claims based on sections 101 and 609 be dismissed; that the claims based on sections 301-306 not be dismissed; and that the claims based on section 501 be dismissed unless within ten (10) days plaintiffs file written affidavits or other verified showing of good cause to believe they have a cause of action.

(1) SECTIONS 101 AND 609 CLAIMS:

Section 101 is a "Bill of Rights" for members of labor organizations. 29 U.S.C. § 411. Section 101(a)(2) guarantees members the rights of free speech and assembly with respect to union matters. Section 101(a)(5) prohibits fining, expelling, suspending or otherwise disciplining union members without certain procedural safeguards, such as "written specific charges" and a "full and fair hearing". 29 U.S.C. § 411(a)(5). Section 102 authorizes a union member to sue in district court for infringement of any right guaranteed under section 101. 29 U.S.C. § 412. In addition, section 609 provides:

It shall be unlawful for any labor organization, or any officer, agent, shop steward, or other representative of a labor organization, or any employee thereof to fine, suspend, expel, or otherwise discipline any of its members for exercising any right to which he is entitled under the provisions of this chapter. The provisions of section 412 of this title shall be applicable in the enforcement of this section.

29 U.S.C. § 529. With respect to the relationship between section 102 and section 609, the Supreme Court has stated that "section 609 ... applies to disciplinary action taken in retaliation for the exercise of any right secured under the Act, whereas § 102 protects only rights secured by § 101." Finnegan v. Leu, 456 U.S. 431, 102 S.Ct. 1867, 72 L.Ed.2d 239 (1982) (emphasis by the Court). Finally, section 501 prescribes fiduciary duties for union officers and authorizes a suit in district court by union members for the benefit of the union to enforce those duties. 29 U.S.C. § 501.

As best as this Court can surmise, plaintiffs allege four claims under sections 101 and 609, all four of which contest the legality of their removal from office. First, invoking jurisdiction under section 102, plaintiffs allege that because they were removed from office in retaliation for their charges against Quinones and other defendants their right of free speech under section 101(a)(2) was infringed (Claim 1). Second, again invoking jurisdiction under section 102, plaintiffs allege that their removal from office was "discipline" within the meaning of section 101(a)(5) and that their removal did not comport with the procedural requirements of that section (Claim 2). Third, invoking jurisdiction under section 609, plaintiffs allege that their removal was "discipline" within the meaning of section 609 for exercising their free speech rights under section 101(a)(2) (Claim 3). Finally, invoking jurisdiction under section 609, plaintiffs allege that their removal was "discipline" for exercising their section 501 right to charge defendants with breaches of fiduciary duties (Claim 4).

In recommending that none of the above four claims states a claim upon which relief can be granted under the LMRDA, the Magistrate relied on the recent Supreme Court decision in Finnegan v. Leu, supra. Plaintiffs' objection to the recommendation of the Magistrate goes to the applicability of Finnegan to the removal of elected union officers.

In Finnegan, the Court held that summary removal of an appointed union officer, who had supported the new president's opponent, by the newly elected president did not violate sections 101(a)(2) or 609 of the LMRDA. The Court discussed sections 101 and 609 separately and with regard to the latter stated:

the term "discipline," as used in § 609, refers only to retaliatory actions that affect a union member's rights or status as a member of the union. Section 609 speaks in terms of disciplining "members"; and the three disciplinary sanctions specifically enumerated — fine, suspension, and expulsion — are all punitive actions taken against union members as members. In contrast, discharge from union employment does not impinge upon the incidents of union membership, and affects union members only to the extent that they also happen to be union employees.

456 U.S. at 437-38, 102 S.Ct. at 1871-72 (emphasis by the Court). Accordingly, the Court held that the removal of an appointed union officer was not within the scope of the sanctions prohibited by section 609.

Turning to the claims under section 101, the Court held that a union officer's rights to campaign, vote and freely speak his views were not "infringed" by the termination of his union employment. Again the Court emphasized that the purpose of the LMRDA was to protect membership rights of members qua members. The Finnegan Court also emphasized that plaintiff was an appointed officer and that nothing in the LMRDA indicated a Congressional purpose to disturb the system of union patronage. 456 U.S. at 441, 102 S.Ct. at 1873. However, the Court did decline to decide "whether the retaliatory discharge of a union member from union office — even though not `discipline' prohibited under § 609 — might ever give rise to a cause of action under § 102." Id. at 440-41, 102 S.Ct. at 1872-73.

Plaintiffs herein contend that Finnegan is distinguishable and does not defeat their claims under sections 101 and 609. They argue that because Finnegan involved appointed union officials, and the Court used the modifier "appointive" in several places in its opinion, it is not applicable to this case involving elected union officials. Plaintiffs also contend that Finnegan is inapposite because it did not involve, unlike the case at bar, the allegation that discharge was in retaliation for making claims that defendants were breaching their fiduciary duties under section 501.

It is the opinion of this Court that Finnegan requires dismissal of plaintiffs' claims 2, 3 and 4. As discussed, supra, claims 3 and 4 contend that plaintiffs' removal was "discipline" illegal under section 609, and claim 2 contends that their removal was "discipline" illegal under section 101(a)(5). However, under Finnegan, removal from office is not "discipline" because it does not "affect a union member's rights or status as a member of the union." 456 U.S. at 437, 102 S.Ct. at 1871 (emphasis by the Court). Finnegan did not involve a claim based upon discipline alleged to violate section 101(a)(5), but the Court discussed the legislative history of the language in section 101(a)(5), which language is virtually identical to that in section 609, to bolster its holding with respect to section 609:

Congress used essentially the same language elsewhere in § 101(a)(5) with the specific intent not to protect a member's status as a union employee or officer .... The Conference Report ... explains that § 101(a)(5) ... "applies only to suspension of membership in the union; it

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