Ross v. International Broth. of Elec. Workers
Decision Date | 27 March 1975 |
Docket Number | No. 73-1168,73-1168 |
Citation | 513 F.2d 840 |
Parties | 88 L.R.R.M. (BNA) 3562, 76 Lab.Cas. P 10,783 Glynn ROSS and Nancy Ross, husband and wife, Plaintiffs-Appellants, v. INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, a labor organization organized under the laws of the United States of America, et al., Defendants-Appellees. |
Court | U.S. Court of Appeals — Ninth Circuit |
Before HAMLEY, MERRILL and WRIGHT, Circuit Judges.
This case involves grievances alleged by appellant 1 to have been suffered by him in connection with a local union election. The question presented on this appeal is whether Title IV of the Labor-Management Reporting and Disclosure Act of 1959 (LMRDA), 29 U.S.C. § 481 et seq., and specifically § 402 of Title IV, 29 U.S.C. § 482, provides the exclusive method of protecting the rights asserted by appellant and thus deprives the district court of jurisdiction. Such was the view of the district court in dismissing appellant's action.
In 1972 appellant was the incumbent financial secretary and business manager of Local 640 of the International Brotherhood of Electrical Workers and sought re-election to that position. He was opposed in the election by the president of the Local, who prior to the election, charged him with certain improprieties concerning union funds and filed those charges with appellee Duke, vice-president of the International, for hearing pursuant to the International's constitution. Appellant alleged that Duke deliberately delayed a trial on these charges until the three-week voting period for the election had begun in order to affect adversely appellant's chances for election. Appellant nevertheless received the greatest number of votes, but since he fell short of a majority a run-off became necessary. Appellant alleged that although prior to the run-off election Duke received recommendations favorable to appellant from the hearing officer who was entertaining the charges of misconduct, Duke deliberately failed to act on these recommendations until after the run-off. Appellant won the run-off by eight votes and was certified as winner by the local election board. His opponent protested certain ballots, however, and after an investigation Duke ordered a new election. Appellant then filed an appeal from this order with the International seeking a hearing on the decision to hold a new election and a stay of the new election pending that hearing or other disposition of the appeal. The International issued no such stay, and Duke scheduled the new election for a time by which it allegedly was improbable that a hearing could be held on appellant's internal appeal.
At that point appellant brought this suit. In counts I, II and III of his complaint he sought to enjoin the holding of the new election and interference with the election process by Duke and the International. He also sought a declaration that International had no authority to interfere with the Local and its holding of its election, and further sought an injunction prohibiting Duke from asserting further authority respecting the charges pending against appellant. The holding of the new election was not stayed, however, and appellant emerged as the winner. Counts I, II and III thus were rendered moot in so far as concerns the election at issue. No error is assigned as to their dismissal.
Count IV is the subject of this appeal. It is a count in tort with jurisdiction founded on diversity of citizenship. It seeks monetary damages and alleges that Duke, exceeding his authority as International vice-president, "has arbitrarily, recklessly and with malice and intent to injure plaintiff, acted to deprive plaintiff of his office of Business Manager and Financial Secretary, thereby interfering with all advantageous financial relationships between plaintiff and the Local." Further appellant alleges that Duke, "while acting under the guise and color of his office * * * has embarked upon a series of acts calculated to discredit, dishonor and disgrace plaintiff in his candidacy * * *." 2
Title IV of the LMRDA is discussed in Calhoon v. Harvey, 379 U.S. 134, 140, 85 S.Ct. 292, 296, 13 L.Ed.2d 190 (1964), as follows:
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