Massey v. Inland Boatmen's Union of the Pacific

Decision Date05 October 1989
Docket NumberNo. 88-3713,88-3713
Citation886 F.2d 1188
Parties132 L.R.R.M. (BNA) 2639, 58 USLW 2275, 113 Lab.Cas. P 11,543 Phillip MASSEY, Plaintiff-Appellant, v. INLAND BOATMEN'S UNION OF THE PACIFIC, Marine Division of the International Longshoremen's and Warehousemen's Union, et al., Defendant-Appellee.
CourtU.S. Court of Appeals — Ninth Circuit

Richard N. VanCleave, Steven J. Nemirow, Portland, Or., for plaintiff-appellant.

Robert Udziela, Portland, Or., for defendant-appellee.

Appeal from the United States District Court for the District of Oregon.

Before CANBY, THOMPSON and LEAVY, Circuit Judges.

CANBY, Circuit Judge:

Phillip Massey brought an action in district court seeking damages and injunctive relief against the defendant unions 1. Massey alleged that the union's action in fining him for refusing to participate in lawful picketing during a strike against his employer violated his statutory freedom of speech under Section 101(a)(2) of the Labor Management Reporting and Disclosure Act, 29 U.S.C. Sec. 411(a)(2). Massey further alleged that, of several members who declined to participate in picketing, he was the only one disciplined. He claims that such discriminatory union discipline was actually retaliation for his vocal opposition to a strike and violated his free speech rights under the same statute.

The district judge granted the union's motion to dismiss the complaint for failure to state a claim under Fed.R.Civ.P. 12(b)(6). Judgment was entered dismissing the action. Massey appealed in a timely manner. This court has jurisdiction under 28 U.S.C. Sec. 1291. We review de novo the granting of a motion to dismiss for failure to state a claim, and affirm only if the plaintiff's allegations, taken as true, fail to state a claim for which the court may grant relief. Shah v. County of Los Angeles, 797 F.2d 743, 745 (9th Cir.1986). Applying these standards, we reverse and remand to the district court.

Massey's first claim is that his statutory free speech rights are violated by enforcement of a union rule requiring participation by members in picketing activities during a labor dispute. We find no merit in this claim.

Section 101(a)(2) provides:

Every member of any labor organization shall have the right to meet and assemble freely with other members; and to express any views, arguments, or opinions; and to express at meetings of the labor organization his views, upon candidates in an election of the labor organization or upon any business properly before the meeting, subject to the organization's established and reasonable rules pertaining to the conduct of meetings: Provided, That nothing herein shall be construed to impair the right of a labor organization to adopt and enforce reasonable rules as to the responsibility of every member toward the organization as an institution and to his refraining from conduct that would interfere with its performance of its legal or contractual obligations.

29 U.S.C. Sec. 411(a)(2). As the Supreme Court pointed out in United Steelworkers v. Sadlowski, 457 U.S. 102, 111, 102 S.Ct. 2339, 2345, 72 L.Ed.2d 707 (1982), the statute offers a considerably narrower protection to speech than does the First Amendment, because speech can be impaired by union rules if they are reasonable.

Sadlowski specified the proper order of inquiry to determine whether section 101(a)(2) has been violated. First, we must consider whether enforcement of the union's rule interfered with an interest protected by the first part of the statute. If it does, we must then determine whether the rule is reasonable and thus protected by the proviso of the statute. Id.; see Ferguson v. International Ass'n of Bridge, Structural and Ornamental Iron Workers, 854 F.2d 1169, 1172 & n. 2. (9th Cir.1988).

The union's requirement that Massey picket to support a position with which he disagrees may be viewed as interfering with Massey's statutory right "to express any views, arguments, or opinions." The right to express views necessarily includes the right to refuse to express views; refusal is also expression. See Wooley v. Maynard, 430 U.S. 705, 97 S.Ct. 1428, 51 L.Ed.2d 752 (1977) (violation of First Amendment for state to require motorist to display license plate motto with which he disagrees).

The question then is whether the union's rule requiring members to perform picket duty during a strike is "reasonably related to the protection of the organization as an institution." Sadlowski, 457 U.S. at 112, 102 S.Ct. at 2346. We have no difficulty concluding that it is. Picketing is clearly an important element of the union's ability to place pressure on management and to elicit support of other workers and of the public for a lawful strike. Massey argues, however, that many unions do not require members to picket, but simply pay those members, or even outsiders, who are willing to picket. That alternative may be reasonable, but so is a requirement that all members share the picketing duty. The union's ability to mobilize its entire membership in visible support of a strike may contribute to its negotiating power. Similarly, active involvement of all members in major union endeavors may contribute substantially to the long-run viability of the organization. The rule does not have to be necessary to be protected by the proviso of section 101(a)(2). It only need be reasonable, and reasonable it is. Massey's first claim was therefore properly dismissed.

Massey's second claim is that he was actually disciplined only because he had openly expressed opposition to the strike at union meetings. He alleges that several other union members refused to picket and that only he was disciplined. Massey's claim in essence amounts to one of selective prosecution. We have held that it is unconstitutional to prosecute an offender if others similarly situated have not been prosecuted and the defendant was selected only because he exercised a constitutional right. United States v. Steele, 461 F.2d 1148, 1152 (9th Cir.1972). Far more often, we have restated the principle but found the prosecution to be justified. E.g., United States v. Oaks, 527 F.2d 937, 940 (9th Cir.1975), cert. denied, 426 U.S. 952, 96 S.Ct. 3177, 49 L.Ed.2d 1191 (1976); United States v. Gillings, 568 F.2d 1307, 1309 (9th Cir.) cert. denied, 436 U.S. 919, 98 S.Ct. 2267, 56 L.Ed.2d 760 (1978); United States v. Wayte, 710 F.2d 1385, 1387 (9th Cir.1983) aff'd, 470 U.S. 598, 105 S.Ct. 1524, 84 L.Ed.2d 547 (1985).

We recognize the justice of the principle against selective prosecution, and the fact that it can serve the purposes of section 101(a)(2). If a union has no interest in enforcement of a rule, and regularly ignores...

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    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • July 10, 1990
    ...remedies under the Act. STANDARD OF REVIEW Dismissal for failure to state a claim is reviewed de novo, Massey v. Inland Boatmen's Union, 886 F.2d 1188, 1189 (9th Cir.1989), assuming the truth of all factual allegations made by the plaintiff, Shah v. County of Los Angeles, 797 F.2d 743, 745 ......
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    ...at 31, "[t]he rule does not have to be necessary to be protected by the proviso of section 101(a)(2)." Massey v. Inland Boatmen's Union of the Pacific, 886 F.2d 1188, 1190 (9th Cir.1989). In fact, the rule "only need[s] to be reasonable. . . ." Id. The plaintiffs challenge on this score is ......
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    ...III. FAILURE TO STATE CLAIM We review de novo an order dismissing a complaint for failure to state a claim. Massey v. Inland Boatmen's Union, 886 F.2d 1188, 1189 (9th Cir.1989). The district court dismissed appellant's complaint on the grounds that Roth had not stated a claim upon which rel......
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