Lodge 1380, Broth. of Ry., Airline and S.S. Clerks, Freight Handlers, Exp. and Station Employees (BRAC) v. Dennis
| Citation | 625 F.2d 819 |
| Decision Date | 29 April 1980 |
| Docket Number | No. 78-1005,78-1005 |
| Parties | 104 L.R.R.M. (BNA) 2579, 88 Lab.Cas. P 12,054 LODGE 1380, BROTHERHOOD OF RAILWAY, AIRLINE AND STEAMSHIP CLERKS, FREIGHT HANDLERS, EXPRESS AND STATION EMPLOYEES (BRAC); National Referendum Committee; Peter Pallipamu; John Espe; Bart Longmore; and Lawrence White, Plaintiffs-Appellants, v. C. L. DENNIS; and the Grand Lodge, Brotherhood of Railway, Airline and Steamship Clerks, Freight Handlers, Express and Station Employees (BRAC), Defendants-Appellees. |
| Court | United States Courts of Appeals. United States Court of Appeals (9th Circuit) |
Daniel Hoyt Smith, Smith, Kaplan, Withey, Theiler & Sowa, Seattle, Wash., argued, for plaintiffs-appellants.
Solomon I. Hirsh, Hirsh & Schwartzman, Chicago, Ill., argued, for defendants-appellees.
Appeal from the United States District Court for the Western District of Washington.
Before WRIGHT and WALLACE, Circuit Judges, and BELLONI, * District Judge.
Lodge 1380 (Lodge) brought this action against the Grand Lodge, Brotherhood of Railway, Airline and Steamship Clerks, Freight Handlers, Express and Station Employees (BRAC) and Dennis, president of BRAC. Lodge alleged that BRAC and Dennis violated various provisions of the Labor-Management Reporting and Disclosure Act (LMRDA), 29 U.S.C. §§ 401-531, and section 301 of the Labor Management Relations Act (LMRA), 29 U.S.C. § 185(a), by refusing to give Lodge access to a mailing list of all BRAC members, and by refusing to hold a referendum called for by the BRAC constitution. The district court dismissed the complaint for failure to state a claim upon which relief can be granted and for lack of subject matter jurisdiction, and Lodge appealed. We affirm in part and reverse and remand in part.
Lodge, a chartered subdivision of BRAC, has the same general relationship to BRAC as local unions in other industries have to their international unions. In 1975, Lodge organized a committee to seek an amendment to the BRAC constitution that would provide for rank and file ratification of all BRAC collective bargaining agreements. At the time, union-wide contracts went into effect upon acceptance by BRAC leadership with the individual members having no opportunity to approve or disapprove the agreement. Lodge sought adoption of the amendment pursuant to Article 33 of the BRAC constitution which requires that a referendum vote of all BRAC members be taken upon the request of 100 or more lodges or divisions in at least ten states or provinces. In order to generate the needed support for the referendum, Lodge asked Dennis to provide it with access to mailing lists of all BRAC members. Dennis denied the request, explaining that BRAC policy prohibited public disclosure of such lists. Dennis' denial was affirmed on appeal to the BRAC executive council.
Although frustrated in its attempt to secure BRAC's mailing list, Lodge alleges that it still managed to generate the requisite 100 petitions by use of mailing lists obtained from the Department of Labor. Nonetheless, Dennis refused to hold the referendum when the petitions were submitted to BRAC, apparently relying upon a prior official interpretation of the BRAC constitution, issued by Dennis, which stated that a referendum could not be held upon a proposal recently voted down at a BRAC convention. Lodge appealed this refusal to the executive council and the council again affirmed Dennis' decision.
In its complaint against BRAC and Dennis, Lodge pled three causes of action: 1) that the refusal to disclose membership lists and hold the referendum breached the BRAC constitution which, it contends, is a contract between BRAC and Lodge within the meaning of LMRA § 301, 29 U.S.C. § 185(a); 2) that the BRAC refusals also denied Lodge the equal vote and free speech rights guaranteed by LMRDA § 101(a)(1) and (2), 29 U.S.C. § 411(a)(1) and (2); and 3) that Dennis' conduct breached his fiduciary duties set forth in LMRDA § 501, 29 U.S.C. § 501. 1 We will consider each of Lodge's claims separately in reviewing the district court's dismissal. First, however, we must respond to BRAC's contention that the case is moot.
The BRAC international conference of May 1979 considered several constitutional amendments similar to Lodge's 1975 referendum proposal, and adopted an amendment providing for membership ratification of collective bargaining agreements. One of the amendments considered and rejected at the convention was proposed by Lodge and was a somewhat modified version of the proposal that gave rise to this lawsuit. BRAC contends that this case has become moot because Lodge received its long-sought opportunity to propose an amendment to a voting body of BRAC members, because the 1975 proposal was abandoned due to the significant differences between it and the 1979 Lodge proposal, and because the conference adopted an amendment providing for a form of rank and file contract ratification. Were we to conclude that Lodge is suing solely to obtain the opportunity once to put its 1975 amendment to the vote of BRAC, these contentions would have some merit. The essence of Lodge's claim, however, is that BRAC wrongfully denied access to its membership lists and disregarded Article 33 of its constitution. The 1979 conference vote did nothing to rectify those alleged wrongs, nor to make the relief requested unnecessary.
A case has become moot when "(1) it can be said with assurance that 'there is no reasonable expectation . . .' that the alleged violation will recur, . . . and (2) interim relief or events have completely and irrevocably eradicated the effects of the alleged violation." County of Los Angeles v. Davis, 440 U.S. 625, 631, 99 S.Ct. 1379, 1383, 59 L.Ed.2d 642 (1979) (citations omitted). Lodge seeks a declaration and injunction assuring that membership lists will be made available in the future and that BRAC will no longer interfere with its right to obtain a referendum pursuant to Article 33. Nothing that occurred at the BRAC 1979 conference suggests that lists will be available or Article 33 honored absent such relief. Although Lodge took the opportunity to propose an amendment at the conference, the proposal was made to delegates of the BRAC membership and not to the rank and file members who would vote in referendum balloting. Moreover, Lodge is still without the membership lists that would permit widespread solicitation of support for its referendum proposal. It thus cannot be said with assurance that the alleged wrongs will not recur or that the conference eradicated all effects of BRAC's alleged wrongful conduct.
BRAC also contends that any claims made against Dennis are moot because he retired shortly after the commencement of this action and has since died. In the district court, Lodge attempted to rectify that problem by requesting a 30-day period in which to perfect service upon the current president of BRAC. The district court denied that motion without reaching its merits because the complaint, even with proper service, stated no section 501 cause of action. Because we find that the complaint does state a section 501 cause of action against Dennis, the case will be remanded to the district court where Lodge may again pursue its motion for leave of court to serve the current BRAC president. Moreover, even if Lodge is not permitted to serve the current BRAC president, the claims against Dennis are not moot. The section 501 claim is brought against Dennis personally and Lodge seeks costs and attorney's fees which would be recoverable from his estate.
In its first claim, Lodge contends that the BRAC constitution is a contract for purposes of federal jurisdiction under LMRA § 301(a), 29 U.S.C. § 185(a). 2 Consequently, Lodge argues that the district court has authority to remedy BRAC's and Dennis' disregard of Article 33 as a breach of contract between labor organizations. The district court concluded that it lacked subject matter jurisdiction over this claim because it described what was "in essence an internal union dispute rather than one involving labor management relations." We agree.
It is well settled in this court that "if a controversy is related only to a union dispute which will not affect external labor relations, § 301 does not provide a basis for jurisdiction." Stelling v. IBEW Local 1547, 587 F.2d 1379, 1384 (9th Cir. 1978), cert. denied, 442 U.S. 944, 99 S.Ct. 2890, 61 L.Ed.2d 315 (1979); Hotel & Restaurant Employees Local 400 v. Svacek, 431 F.2d 705, 706 (9th Cir. 1970). Lodge responds by arguing that if its amendment is not adopted by referendum, the membership of BRAC may be forced to work under a contract with which they disagree and that the "easily foreseeable result" will be constant outbreaks of industrial strife and many local or even national wildcat strikes. However, the allegedly wrongful conduct in this case is not denial of membership ratification of collective bargaining agreements, but rather the denial of referendums and access to membership lists. That the amendment giving rise to this suit would provide for member ratification of collective bargaining agreements is only incidental to the complaint made and the relief sought.
In Stelling v. IBEW Local 1547, supra, the plaintiff union members claimed that the international union's constitution required membership ratification of collective bargaining agreements. In concluding that section 301 did not grant federal court jurisdiction, we stated:
The question whether a union constitution grants members the right to vote on the ratification of collective bargaining agreements exemplifies the kind of intra-union issue that does not affect labor-management relations without further specific allegations of such impact. The issue is of an intra-union nature and Congress and the courts have been uniformly reluctant to permit judicial intervention in ongoing internal union affairs.
587 F.2d at 1384. If the claim that a union constitution mandates rank and file...
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