Maceira v. Pagan

• Citation: 649 F.2d 8
• Decision Date: 13 May 1981
• Docket Number: No. 80-1622,80-1622
• Parties: 107 L.R.R.M. (BNA) 2408, 91 Lab.Cas. P 12,771 Efrain MACEIRA et al., Plaintiffs, Appellants, v. Luis Enrique PAGAN et al., Defendants, Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

Page 8

649 F.2d 8

107 L.R.R.M. (BNA) 2408, 91 Lab.Cas. P 12,771

Efrain MACEIRA et al., Plaintiffs, Appellants, v. Luis Enrique PAGAN et al., Defendants, Appellees.

No. 80-1622.

United States Court of Appeals, First Circuit.

Argued Feb. 3, 1981.

Decided May 13, 1981.

Ellis Boal, Detroit, Mich., with whom Alejandro Torres Rivera, San Juan, P. R., and Torres & Velaz, Rio Piedras, P. R., were on brief, for plaintiffs, appellants.

Agustin Collazo Mojica, Rio Piedras, P. R., with whom Primitivo Pagan Colon, Santurce, P. R., was on brief, for defendants, appellees.

James Reif, and Gladstein, Reif & Seigel, Brooklyn, N. Y., on brief, for Richard Santiago, et al., amici curiae.

Before CAMPBELL, BOWNES and BREYER, Circuit Judges.

BREYER, Circuit Judge.

Plaintiffs, members of Local 901 of the International Brotherhood of Teamsters, sued the Local and its Secretary-Treasurer Luis Pagan. They claimed that, in removing plaintiff Efrain Maceira from his position as a union steward, Pagan and the Local violated their rights to free expression protected by the Labor-Management Reporting and Disclosure Act of 1959 ("LMRDA"), popularly known as the Landrum-Griffin Act, 29 U.S.C. § 411(a)(2). They further alleged that this removal constituted "discipline" proscribed by 29 U.S.C. § 529. ¹ Plaintiffs sought a preliminary injunction reinstating Maceira pending trial of their claim. The district court, 501 F.Supp. 641, after a hearing ² denied their request. Plaintiffs appeal from this denial of a preliminary injunction. We reverse the district court.

I.

In April 1979 Maceira was elected a general steward of one of the many bargaining units that Local 901 represents. His particular unit covered employees of the Hotel Condado Beach, the Hotel La Concha, and the Convention Center, all in San Juan, Puerto Rico. As general steward he helped to process grievances, he kept union records, and he maintained continuous contact with the 600 members of his unit and the 20 ordinary unit stewards elected by various of the unit's departments. He, together with other stewards, made up a Stewards' Council, which advised the Local's leadership. But, under the union's rules, it was explicitly stated that a steward was neither an officer nor an agent of the union.

The record suggests that Maceira was an effective steward and an active union member and that many of his activities created tension between him and Local officials, such as Pagan. For example, he led efforts to have the collective bargaining contract and union by-laws translated into Spanish and distributed to members. He sought monthly steward meetings. He led a fight against a disaster relief plan that Pagan had proposed. He held a press conference to urge Local support of a strike by employees of the Caribe Hilton Hotel. And, he supported an organization called "Tronquistas A La Carga" ("TALC"), which saw itself as a "union reform" movement opposed to Pagan and other Local 901 officials. ³

On December 11, 1979, Pagan dismissed Maceira as general steward. Pagan did so by writing, not to Maceira, but to Maceira's employer informing him of the dismissal. Within two days 300 union members signed a petition asking Pagan for a statement of reasons for the dismissal, and on December 14, 1979 Maceira also wrote to Pagan asking for an explanation. Pagan responded on December 21 with the following letter:

December 21, 1979

Mr. Efrain Maceira

62 SE Street $ 1227

Reparto Metropolitano

Rio Piedras, PR 00921

Mr. Maceira:

The Labor Relations Law makes the Secretary-Treasurer and the Union itself, responsible for the acts of its delegates. This is so because the law includes the delegates as agents of the Union. This being so, it is my duty as Secretary-Treasurer to see to it that the delegates be true representatives of the Union.

Your actions as agent of the Union leave much to be desired. On October 31, 1979 I met with all La Concha delegates and, among other things, discussed the case of co-worker Angel Martinez. The decision, and what was being done about it, was widely discussed. We solicited questions if there was any doubt. Everyone acquiesced, no one suggested anything. Nonetheless, in the meeting of November 1st, you presented yourself as the great defendor of Martinez and presenting defamatory criticism against the Union, when the previous day you maintained absolute silence.

Later on, you presented yourself at a press conference as a representative of the workers, claiming that they were not being paid the Christmas Bonus. This is incorrect on your part since the Teamsters Union is the only representative of said workers and when the time comes it will present the complaint with respect to the bonus.

As if this was not enough, during the assembly-party of December 7, 1979, you had the lack of respect and consideration towards the delegates and the Union Board that, without the program having started, you took the microphone on your own account to insult and incite those present to abandon the site, and even though you were not fruitful, it shows that you respond to interests foreign to the Union.

For all of which and because it is understood that, you do not represent the best interest of the Union I can not afford the luxury of having an agent against the Union. I had no other choice than to destitute you as delegate.

Respectfully,

Luis E. Pagan

Secretary Treasurer

LEP/gg

fc: Membership-Condado Beach La Concha Hotels & Convention Center

Maceira, who retained his union membership, proceeded to contest his dismissal from his shop steward post in accordance with the union's internal procedures. He filed charges with the Local. The Local's Board of Directors, without a hearing, dismissed the charges, and its president wrote to Maceira that he "did not answer to the best interests of the union". Maceira then appealed to the Teamsters' General Executive Board. The Board has not yet acted on the appeal, but the Teamsters' Constitution and by-laws provide that after four months pass without a final decision, union remedies are deemed to have been exhausted.

Finally, Maceira brought this court action. His basic claim is that, in dismissing him, Pagan violated the "free speech" clause of the bill of rights that the LMRDA enacted for the benefit of union members. ⁴ That clause, in relevant part, provides:

Every member of any labor organization shall have the right to express any views, arguments or opinions; and to express at meetings of the labor organization his views upon any business properly before the meeting

29 U.S.C. § 411(a)(2). This right of each member, however, is expressly made subject to the organization's right

to adopt and enforce reasonable rules as to the responsibility of every member toward the organization as an institution

Id. ⁵

In refusing Maceira preliminary injunctive relief, the district court first concluded that the LMRDA's "free speech" clause does not protect an elected shop steward from the loss of his steward's position. The court noted that a later section of the LMRDA, 29 U.S.C. § 529, forbids "any labor organization to fine, suspend, expel, or otherwise discipline " (emphasis added) any member for exercising a right protected by the Act (such as "free speech"). The court, however, followed those cases that held that removal of a union official from his official position does not constitute "discipline" within the terms of this section. The court went on to hold that, in any event, Maceira's action transcends "free speech" and suggests "insubordination and ultra vires activity". Thus, the court ruled, plaintiffs did not show sufficient likelihood of success on their "free speech" claim or show sufficiently "irreparable" injury to warrant a preliminary injunction.

II.

The prevailing view of the courts of appeal which we share is that the LMRDA allows an elected union official to assert a claim, in an appropriate case, charging that removal from his official position violates the LMRDA bill of rights and to seek reinstatement as an appropriate remedy. Newman v. Local 1101, Communications Workers, 597 F.2d 833, 835 (2d Cir. 1979). ⁶ Certainly, the plain wording of the statute supports that conclusion. Section 529 states that it shall be unlawful "to fine, suspend, expel, or otherwise discipline" any member for exercising a protected right. 29 U.S.C. § 529. Removal from office would seem on at least some occasions to be a form of "discipline". Moreover, 29 U.S.C. § 412 independently grants a direct cause of action to union members "whose rights have been infringed by any violation of this subchapter". See Miller v. Holden, 535 F.2d 912, 916 (5th Cir. 1976). ⁷ The member "may bring a civil action in a district court of the United States for such relief (including injunctions) as may be appropriate". 29 U.S.C. § 412.

Appellees' contention that union officials removed from office do not have a cause of action under 29 U.S.C. § 529 is largely based upon the way in which the words "otherwise disciplined" are used in a different section of the bill of rights, namely, 29 U.S.C. § 411(a)(5), which surrounds union punishments with specific procedural safeguards. That section states that "(n)o member of any labor organization may be fined, suspended, expelled, or otherwise disciplined" without notice and hearing. 29 U.S.C. § 411(a)(5)(A) and (C). There is convincing legislative history to show that the words "otherwise disciplined" in that clause do not encompass "removal from office." Grand Lodge of International Ass'n of Machinists v. King, 335 F.2d 340, 345 (9th Cir.), cert. denied, 379 U.S. 920, 85 S.Ct. 274, 13 L.Ed.2d 334 (1964). In our opinion, however, the prevailing view of the circuits, which allows a cause of action under § 529, Bradford v. Textile Wkrs. of America, AFL-CIO, 563 F.2d 1138, 1141-42 (4th Cir. 1977), ⁸ not only avoids a strained ⁹ interpretation of the statute's wording, but also more effectively carries out its basic intent...