Murray v. Laborers Union Local No. 324
| Decision Date | 31 May 1995 |
| Docket Number | Nos. 93-15641,93-16176 and 93-16540,s. 93-15641 |
| Parties | 149 L.R.R.M. (BNA) 2457, 149 L.R.R.M. (BNA) 2858, 130 Lab.Cas. P 11,345, 130 Lab.Cas. P 11,367, 31 Fed.R.Serv.3d 1222, 95 Daily Journal D.A.R. 9305 Douglas MURRAY, Plaintiff-Appellee-Cross-Appellant, v. LABORERS UNION LOCAL NO. 324; Jesse Thomas; Jesse Durran, Jr.; Jesse Durran, Sr.; Charles J. Evans; Bob Davis, Defendants-Appellants-Cross-Appellees. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Christopher W. Katzenbach, Katzenbach and Khtikian, San Francisco, CA, for plaintiff-appellee-cross-appellant.
Sandra Rae Benson, Van Bourg, Weinberg, Roger & Rosenfeld, San Francisco, CA, for defendants-appellants-cross-appellees.
Appeals from the United States District Court for the Northern District of California.
Before: SNEED and O'SCANNLAIN, Circuit Judges, and MERHIGE, * District Judge.
Appellants, a labor union, four of its officers, and one of its members, appeal from the judgment of the district court, entered after a jury verdict, holding them liable for violating Appellee Douglas Murray's rights under the Labor-Management Reporting and Disclosure Act of 1959 (LMRDA). Murray cross-appeals, claiming that the district court erred by granting directed verdicts in favor of the Appellants on several claims and by refusing to vacate an unfavorable arbitration award. 1 We affirm.
Appellant Laborers Union Local No. 324 (the Union) represents construction workers. Appellants Jesse Thomas, Jesse Durran, Jr., Charles Evans, and Bob Davis are officers of the Union, and Appellant Jesse Durran, Sr. is a now-retired member of the Union. Appellee and Cross-Appellant Murray is a member of the Union and a longtime dissident. Murray brought suit following a series of clashes with Union officers.
The first dispute involved a job referral. Ordinarily, Union members are dispatched to jobs as their names come up on the "plug" board in the hiring hall. As jobs are given to In December 1988, an employer, National Energy Constructors (NEC), issued a referral letter for Murray and several others. At the time, Murray was attending classes at a training center, of which the Union was aware. Nonetheless, the Union did not attempt in any way to contact Murray. Jesse Durran, Jr., who saw Murray at the training center during December, not only was rude to Murray but did not tell him about the letter.
those listed at the top of the board, those beneath them move up and are next in line to receive positions. Under certain circumstances, however, employers are allowed to request a Union member by name in a referral letter, in which case the member is dispatched regardless of the position of his name on the plug board.
By the time Murray learned about the referral letter, the job with NEC was apparently no longer available. Murray filed a hiring hall grievance against the Union for not contacting him. The permanent hiring hall arbitrator, Gerald McKay, in due course ruled that the Union was not contractually obligated to tell Murray about the letter.
When NEC refused to issue a second referral letter, Murray attempted to file a grievance against NEC for discrimination. Instead of following the procedure for a grievance against an employer, however, Murray filed another hiring hall grievance. On July 5, 1989, arbitrator McKay ruled that Murray's complaint could not be redressed through the hiring hall grievance process because his dispute was with NEC, not the Union. He ordered Murray to pay the costs of arbitration for having filed a frivolous hiring hall grievance.
In mid-January 1990, the dispute between Murray and the Union moved to another level when Murray prepaid his union dues in order to maintain his eligibility to run for office in the upcoming election. In February, the Union sent Murray the bill for its arbitration costs, totaling $802, which Murray contested. In March, the Union informed Murray by letter that it had applied Murray's prepaid dues towards the arbitration costs and would continue to apply Murray's dues until the amount was paid off. Murray paid the full assessment under protest in order to maintain his eligibility to run for office.
Murray, in an effort to reach the rank and file of Union members, edited and published several editions of a newsletter entitled "Pick & Shovel," which tended to be critical of the Union and its leadership. He distributed it, along with other labor literature, in the Union's hiring halls in various towns over the course of a year. In June 1989, shortly before arbitrator McKay's July 5, 1989 ruling, Murray was setting up to distribute literature in the hiring hall in Martinez, California, when Charles Evans approached him and told him not to hand out literature. Murray refused to leave, and Evans called the police. When the police arrived, they asked whether there was a union rule against distributing literature, to which Evans replied that there was not. The police left without taking any action against Murray.
At the June meeting, the Union membership voted in favor of a rule barring solicitation and distribution of literature in hiring halls during dispatch hours. Signs announcing the "No Solicitation, No Distribution" rule were subsequently posted in the hiring halls.
A regular Union meeting was held on October 24, 1989, at which, as part of the routine agenda, the minutes of the prior meeting were read. During this period, Murray contested the accuracy of the minutes. The minutes were nonetheless approved. The not-easily repressed Murray attempted to speak again during an unrelated agenda topic. The Union president, Jesse Thomas, ruled Murray out of order and demanded repeatedly that he "shut up and sit down." Union officials, Evans and Davis, joined in the demand. When Murray refused to do so, Thomas ordered Murray to leave. Murray refused. Thomas told the sergeant-at-arms, John Alford, to escort Murray out. Alford hesitated, and Thomas asked the membership Murray did not rest; he filed suit in federal court on November 27, 1989. His first amended complaint alleged various violations of his rights under the LMRDA, breach of the duty of fair representation, assault and battery, and conversion.
generally to help Alford remove Murray. Durran, Jr. approached and tried to pick up Murray's briefcase, but Murray prevented him, and a scuffle ensued. Jesse Durran, Sr. entered the fray and grabbed and pulled Murray's hair. Order was eventually restored when other Union members broke up the fight. Murray remained at the meeting.
A jury trial began on February 16, 1993. Following the presentation of Murray's case, Appellants moved for judgment as a matter of law under Rule 50(a) of the Federal Rules of Civil Procedure. The court rendered judgments in favor of Appellants on the following causes of action: (1) the duty of fair representation claim; (2) the assault and battery claims against the Union, Thomas, Evans, and Davis; (3) the LMRDA claim; and (4) the conversion claim, both arising from the Union's collection of arbitration costs from Murray; and (5) the LMRDA claim for infringement of the right to participate in and vote at Union meetings. The remaining claims were submitted to the jury.
The jury found that the Union and three of its officers, Evans, Thomas, and Durran, Jr., had violated Murray's right of free speech under the LMRDA. 2 The jury awarded Murray $100 in compensatory damages, plus punitive damages: $50,000 against the Union, $10,000 against Thomas, $10,000 against Durran, Jr., and $7,500 against Evans. The jury further found that Jesse Durran, Sr. had committed assault and battery, and awarded Murray $100 in compensatory damages and $1,000 in punitive damages against him. 3
The court denied the Union's post-trial motions for judgment as a matter of law and for a new trial. The court granted Murray's motion for attorney's fees and costs and awarded him $28,298.20. In a companion case, the court denied both Murray's motion to vacate the arbitration award and his motion for injunctive relief against the Union.
The Union timely appeals, and Murray timely cross-appeals. This court has jurisdiction under 28 U.S.C. Sec. 1291.
The trial lasted three and a half days. Judge Walker then gave the jury their instructions, and they began deliberating at about 12:30 p.m. on a Monday. The next day, events unfolded that presented to Judge Walker a very difficult situation. The jury on that day deliberated only until about 11:00 a.m., because one juror had to leave for a job interview. At that point, Juror Giancoli told the judge that he would have to leave early the following day, Wednesday, to attend a board meeting. The court quite properly expressed concern about the prospect of the jury taking half the day off two days in a row.
On Wednesday, the jury resumed deliberations at 8:00 a.m. The judge received three notes from the jury that morning. 4 The first note, unsigned, stated: A schedule of juror conflicts was attached. At 9:00, a note signed by Juror Giancoli was received. It read, "JURY IS HOPELESSLY DIVIDED." 5 Fifteen minutes later, another note was sent out. It read, "We the undersigned believe the jury has come so close to a final verdict that we would like to continue deliberating." The note was signed by seven jurors--all but Juror Giancoli. Obviously the signals being sent by the jury were mixed.
Judge Walker thereupon excused Juror...
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