Nix v. Fulton Lodge No. 2 of Int. Ass'n of Mach. & Aero. W.

• Decision Date: 05 January 1972
• Docket Number: No. 71-1395.,71-1395.
• Parties: Franklin NIX, Plaintiff-Appellant-Cross Appellee, v. FULTON LODGE NO. 2 OF the INTERNATIONAL ASSOCIATION OF MACHINISTS AND AEROSPACE WORKERS et al., Defendants-Appellees-Cross Appellants. Franklin NIX, Plaintiff-Appellant-Cross Appellee, v. INTERNATIONAL ASSOCIATION OF MACHINISTS AND AEROSPACE WORKERS, Defendants-Appellees-Cross Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

452 F.2d 794 (1971)

Franklin NIX, Plaintiff-Appellant-Cross Appellee, v. FULTON LODGE NO. 2 OF the INTERNATIONAL ASSOCIATION OF MACHINISTS AND AEROSPACE WORKERS et al., Defendants-Appellees-Cross Appellants.

Franklin NIX, Plaintiff-Appellant-Cross Appellee, v. INTERNATIONAL ASSOCIATION OF MACHINISTS AND AEROSPACE WORKERS, Defendants-Appellees-Cross Appellants.

No. 71-1395.

United States Court of Appeals, Fifth Circuit.

November 17, 1971.

Rehearing and Rehearing Denied January 5, 1972.

William G. McRae, Atlanta, Ga., for plaintiff-appellant.

J. R. Goldthwaite, Jr., Atlanta, Ga., Plato Papps, Bernard Dunau, Washington, D. C., for defendants-appellees.

Before BELL, AINSWORTH and GODBOLD, Circuit Judges.

Rehearing and Rehearing En Banc Denied January 5, 1972.

BELL, Circuit Judge:

This appeal has to do with two suits filed in the Northern District of Georgia. In the first, Civil Action No. 10,463, filed pursuant to the Labor-Management Reporting and Disclosure Act of 1959 (LMRDA), 29 U.S.C.A., § 401 et seq., plaintiff sought to enjoin his expulsion from union membership and also claimed damages. The district court found that he had been unlawfully disciplined for making statements protected by the free speech provision of the LMRDA, 29 U.S.C.A., § 411(a) (2). Injunctive relief was granted against the Local Lodge and the International Association of Machinists and Aerospace Workers (Grand Lodge). Nix v. Fulton Lodge No. 2 of IAM, N.D.Ga.1967, 262 F.Supp. 1000. The question of damages was reserved.

Both the Local Lodge and the Grand Lodge appealed to this court. The decision below was affirmed in all respects except as to the application of the injunction to the Grand Lodge. We held that the District Court never acquired jurisdiction over the Grand Lodge by virtue of proper designation of the Grand Lodge as a defendant, service of process, or appearance. In reversing as to the Grand Lodge we held that Nix would be entitled, on remand, to amend to seek relief against the Grand Lodge. Fulton Lodge No. 2 of IAM v. Nix, 5 Cir. 1969, 415 F.2d 212, 220.

Accordingly, appellant Nix filed an amendment to his complaint in the district court adding the Grand Lodge as a defendant. However, in the same amendment, he expanded the scope of the suit to allege wrongful discharge from his employment as Press Representative for the Grand Lodge and prayed for reinstatement to employment and other appropriate relief.

The defendants filed motions to dismiss the amended complaint, urging lack of subject-matter jurisdiction, that the complaint failed to state a claim upon which relief could be granted under the LMRDA, or in the alternative, that the claims were barred by principles of res judicata. Thereafter, plaintiff filed a notice of dismissal of this amended complaint against the Grand Lodge, thus eliminating the claim for reinstatement to his job as Press Representative for the Grand Lodge and for damages against the Grand Lodge on account of the discharge. The Grand Lodge objected to the dismissal.

Meanwhile, some two months later, plaintiff filed the second suit, Civil Action No. 13,818. Count I of the complaint was addressed essentially to plaintiff's former employment with the Grand Lodge. He alleged wrongful, malicious, and wanton conduct in administering discipline under the IAM constitution which resulted in his discharge from employment and expulsion from union membership. In the way of relief he requested restoration to employment with the union, damages and counsel fees. This complaint contained a second count which sought declaratory and injunctive relief on behalf of all union members against the Grand Lodge's enforcement of Article L, § 3 of the IAM constitution, on the ground that its provisions authorizing discipline of union members for false or malicious statements against other union members or officers are inconsistent with the free speech provisions of LMRDA, 29 U.S.C.A., § 411(a) (2).

The district court overruled the Grand Lodge's objection to its dismissal from C.A. No. 10,463. Then as to Count I of C.A. No. 13,818, the court ruled that principles of collateral estoppel required judgment for the Grand Lodge on that count. As to Count II, the court over objection from the Grand Lodge, allowed the class action to be brought but narrowed the class. This count was then dismissed with permission granted to plaintiff to add it by amendment to C.A. No. 10,463.

It is plaintiff's position on this appeal that the district court erred in dismissing Count I in C.A. No. 13,818, and in narrowing the class in Count II as well as in dismissing it. The Grand Lodge complains in its cross-appeal of its dismissal in C.A. No. 10,463. This latter suit is now pending in the district court on the claim for damages against the local union. We affirm on the appeal and cross-appeal.

I.

We turn to Count I in C.A. No. 13,818 in which plaintiff sought restoration of his employee status and damages for discharge. The district court concluded that the controlling issues of fact surrounding plaintiff's dismissal from his employment with the Grand Lodge were determined adversely to plaintiff in a prior proceeding before the National Labor Relations Board which was affirmed by this court in Nix v. NLRB, 5 Cir. 1969, 418 F.2d 1001. This earlier determination was held to preclude recovery by plaintiff on Count I. We agree. See, H. L. Robertson & Associates, Inc. v. Plumbers Local Union No. 519, 5 Cir. 1970, 429 F.2d 520; Painters District Council No. 38, etc. v. Edgewood Contracting Co., 5 Cir. 1969, 416 F.2d 1081.

II.

As to Count II of the C.A. No. 13,818, both plaintiff and the Grand Lodge take exception to the ruling of the district court. The Grand Lodge contends that no class action will lie on the free speech question presented in connection with Article L, § 3, of the IAM constitution. Plaintiff contends that the court erred in narrowing the class from all members of the Grand Lodge to only those members against whom the provision was being invoked.

On the authority of Golden v. Zwickler, 1969, 394 U.S. 103, 89 S.Ct. 956, 22 L.Ed.2d 113, the district court determined that no justiciable "controversy" is present except where Article L, § 3 of the IAM constitution is being invoked against union members. For...