Parish v. Legion

• Decision Date: 22 December 1971
• Docket Number: No. 25263.,25263.
• Citation: 450 F.2d 821
• Parties: Harold PARISH et al., Plaintiffs-Appellants, v. Ralph LEGION, Business Agent, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

450 F.2d 821 (1971)

Harold PARISH et al., Plaintiffs-Appellants, v. Ralph LEGION, Business Agent, et al., Defendants-Appellees.

No. 25263.

United States Court of Appeals, Ninth Circuit.

October 20, 1971.

Rehearing Denied December 22, 1971.

Norman H. Kirshman (argued), of Goldstein, Gentile & Kirshman, Beverly Hills, Cal., Bell & Lebaron, Dickerson, Miles & Gang, Ltd., Las Vegas, Nev., for plaintiffs-appellants.

Barry S. Jellison (argued), Philip Paul Bowe, San Francisco, Cal., Ivan R. Ashleman, and Harry Mangrum, Jr., Las Vegas, Nev., for defendants-appellees.

Before CHAMBERS and BARNES, Circuit Judges, and JAMESON,^* District Judge.

JAMESON, District Judge:

Plaintiffs-appellants, for themselves and all so-called "travelers" working within the jurisdiction of Local Union 357, International Brotherhood of Electrical Workers, AFL-CIO, brought this action against defendants-appellees, officers and members of Local 357, seeking a judgment declaring that appellants are entitled to all the rights of members in Local 357, as set forth in Section 101(a) (1), entitled "equal rights," of the Labor-Management Reporting and Disclosure Act, (the Landrum-Griffin Act), 29 U.S.C. § 411(a) (1).¹ At the conclusion of plaintiffs' case the court granted defendants' motion for an involuntary dismissal pursuant to Rule 41(b) and directed the preparation of findings of fact and conclusions of law.

Appellants are members in good standing of the International Brotherhood of Electrical Workers through membership in various locals other than 357. They have been working as construction electricians within the geographic area of Local 357.² They have not been accepted into membership and have not been permitted to vote in Local 357 elections or to vote at meetings on questions affecting their employment contract.

The district court found, inter alia, that (1) "acceptance or non-acceptance of `travelers' into membership in a local union is a matter of local autonomy and cannot be accomplished without a vote of the membership" of the local union; (2) "Local 357 has set up specific residence and other standards * * * for all construction electricians who are applicants for membership in Local 357", and the "standards have not been approved by the International President of the International Brotherhood of Electrical Workers"; (3) the plaintiffs, although aware of the standards "have never attempted to challenge their validity" within the Local or International union "although internal remedies were and are available"; and (4) "under the practices, procedures and Constitution of the International Brotherhood of Electrical Workers, there is no absolute, automatic right of `travelers' to vote on questions affecting employment conditions in the local in whose jurisdiction they are working."

On the basis of these findings the court held that plaintiffs have failed to show (1) that the Labor-Management Reporting and Disclosure Act affords a basis for judicial relief or (2) that they have exhausted their internal administrative remedies; (3) that under Section 8 of Article XXII of the International Constitution Local 357 may refuse to accept a traveler into membership; (4) that plaintiffs have failed to show that Article XXV compels Local 357 to accept a traveler into membership;³ and (5) rights specified under Section 101(a) (1) apply "only to a labor organization to which the worker is a member" and not "to another local within the same International."

Does the Labor Management Reporting and Disclosure Act (LMRDA) Afford a Basis for Judicial Relief?

In contending that the Act affords a basis for judicial relief, appellants rely primarily on Hughes v. Local 11 of International Association of Bridge, Structural and Ornamental Ironworkers, AFL-CIO, 3 Cir. 1961, 287 F.2d 810, cert. denied, 1961, 368 U.S. 829, 82 S.Ct. 51, 7 L.Ed.2d 32, and Ferger v. Local 483 of International Association of Bridge, Structural and Ornamental Ironworkers, AFL-CIO, D.N.J.1964, 238 F. Supp. 1016, aff'd per curiam, 3 Cir. 1965, 342 F.2d 430. Appellees rely on Moynahan v. Pari-Mutuel Employees Guild of California, Local 280, 9 Cir. 1963, 317 F.2d 209, cert. denied, 1963, 375 U.S. 911, 84 S.Ct. 207, 11 L.Ed.2d 150. It does not appear, however, that these cases are in conflict, and no one of them is precisely in point.

In Hughes, a member in good standing of one local of an International union sought to compel transfer of his membership to another—Local 11. The district court dismissed for lack of jurisdiction. In reversing, the appellate court held that Hughes had stated a claim under LMRDA. He had alleged compliance with all of the requirements for membership in Local 11 and also that Local 11 was required by the International's Constitution to formally admit him to membership.

The court pointed out that Congress did not limit the protection of Section 101(a) (1) to those persons who have been formally admitted to membership in a labor organization and who are recognized as members by that organization. Rather under Section 3(o)⁴ equal rights and privileges are extended to "anyone who has fulfilled all of the requirements of membership."⁵ The court remanded for the district court to determine whether Hughes (1) had met the requirements for membership in Local 11, (2) had been deprived of his rights to participate in its affairs, and (3) whether he had "complied or should be required to comply with the proviso of Section 101(a) (4), which states that any member of a labor organization may be required to exhaust reasonable hearing procedures within such organization, but not to exceed a four-month lapse of time, before instituting proceedings against it." 287 F.2d at 819.⁶

In Moynahan, the plaintiff was not a member of a national union attempting to transfer and affiliate with one of its locals. We distinguished Hughes on this ground and also on the ground that the local had reserved the discretionary power to refuse membership.⁷ We concluded in Moynahan that Congress did not intend Section 3(o) to "limit the previously recognized rights of unions to choose their members." 317 F.2d 210. This rule is also expressly recognized in Hughes, 287 F.2d at 817, and impliedly in Ferger, 238 F.Supp. at 1023.

Appellees also cite Stone v. Local 29, International Brotherhood of Boilermakers, etc., D.Mass.1967, 262 F.Supp. 961, and Abrams v. Carrier Corporation, 2 Cir. 1970, 434 F.2d 1234, cert. den. sub nom United Steelworkers of America AFL-CIO v. Abrams, 1971, 401 U.S. 1009, 91 S.Ct. 1253, 28 L.Ed.2d 545, in support of their contention that Local 357 was not required to accept a traveler into membership. In Stone the traveler had been expelled from membership. Recognizing that "there is no legal requirement upon a Union to accept a person for membership solely because he is qualified to become a member," as held in Moynahan, the court held that plaintiff's reliance on Hughes was misplaced "because it appears that Hughes was a member of one Local of the International and was seeking a court order directing his admission, by way of transfer, to another Local of the same International. More significantly, it also appears from the opinion of the Court of Appeals for the Third Circuit that Hughes, unlike the plaintiff in the instant case, had never been validly suspended or expelled from membership in the International." 262 F.Supp. at 963. Abrams is likewise distinguishable. In that case the plaintiffs were members of the Steelworkers Union who were asserting a claim, inter alia, for conspiracy to wrongfully deny them membership in a local of the Sheet Metal Workers Union. 434 F.2d at 1239, 1254.

Appellees contend, and the district court held, that since appellants failed to meet the membership requirements of Local 357, including a favorable vote by its current members, LMRDA affords no basis for relief. It is necessary therefore to examine the Constitution of the International Brotherhood of Electrical Workers (IBEW) to determine whether it grants a local discretionary power to refuse the rights of membership to travelers seeking to transfer their membership.

Article XVII of the International Constitution, relating to "Rules for Local Unions", contains the following provisions:

"Sec. 7. L.U.\'s are empowered to make their own bylaws and rules, but these shall in no way conflict with this Constitution. Where any doubt appears, this Constitution shall be supreme. All bylaws, amendments and rules, * * * shall be submitted in duplicate form to the I.P. for approval. * * * No L.U. shall put into effect any bylaw, amendment, rule or agreement of any kind without first securing such approval. All these shall be null and void without I.P. approval. The I.P. has the right to correct any bylaws, amendments, rules or agreements to conform to this Constitution and the policies of the I.B.E.W.

"Sec. 8. This Constitution and the rules herein shall be considered a part of all L.U. bylaws and shall be absolutely binding on each and every L.U. member.

"Sec. 9. All L.U. bylaws or rules in conflict with this Constitution and the rules herein, are null and void."

Article XXII of the Constitution of the International relates to "Admission of Members" and Article XXV to "Traveling Cards." Obviously these articles must be construed together in resolving the rights of plaintiffs under the International Constitution.

Article XXII refers throughout to "applicants for membership." There is no specific reference to current members of other locals.⁸ Section 3 provides that the admission of an applicant into any local "constitutes a contract between the member, the L.U. and the I.B.E.W., and between such member and all other members of the I.B.E.W." Section 8 provides for a vote on all applicants for membership, and if a "majority of members present, vote in the negative, the applicant or applicants shall be rejected * * *."⁹ Article XXII contains other provisions, such as the signing of a...