Seay v. McDonnell Douglas Corporation

• Decision Date: 19 December 1973
• Docket Number: Civ. No. 67-1394-HP and 71-498-HP.
• Citation: 371 F. Supp. 754
• Court: U.S. District Court — Central District of California
• Parties: George L. SEAY et al., Plaintiffs, v. McDONNELL DOUGLAS CORPORATION and International Association of Machinists & Aerospace Workers, AFL-CIO, et al., Defendants.

371 F. Supp. 754

George L. SEAY et al., Plaintiffs, v. McDONNELL DOUGLAS CORPORATION and International Association of Machinists & Aerospace Workers, AFL-CIO, et al., Defendants.

Civ. Nos. 67-1394-HP and 71-498-HP.

United States District Court, C. D. California.

December 19, 1973.

COPYRIGHT MATERIAL OMITTED

Rex H. Reed, Raymond J. LaJeunesse, Jr., Washington, D. C., Jonathan C. Gibson, Gibson & Kennerson, San Diego, Cal., Joseph H. Cummins, Cummins, White & Breidenbach, Los Angeles, Cal., for plaintiffs.

Alfred M. Klein, Richard D. Brew, Rose, Klein & Marias, Los Angeles, Cal., Plato E. Papps, Washington, D. C., for defendants.

MEMORANDUM AND ORDER GRANTING MOTIONS FOR SUMMARY JUDGMENT AND DISMISSAL

PREGERSON, District Judge.

These consolidated cases are before the court on motions for summary judgment and dismissal filed by the International Association of Machinists and Aerospace Workers, AFL-CIO, and District Lodges 1578 and 720 (collectively, the "union defendants" or the "IAM").

The named plaintiffs,¹ non-union employees of McDonnell Douglas Corporation or its predecessor, Douglas Aircraft Company,² have been required, under union security provisions of collective bargaining agreements applicable to their bargaining unit since July 23, 1962, to pay to the IAM a monthly agency fee equal in amount to the monthly dues paid to the IAM by its members.³ Under such union security provisions, the failure to pay agency fees or union dues would subject an employee to discharge by the company.

Plaintiffs assert that the agency fees paid by them have been used, in part, by the IAM to support political candidates and to "propagate political and economic doctrines, concepts, ideologies, and legislative programs" which plaintiffs eschew. They charge that by using such agency fees for purposes other than those reasonably necessary and germane to collective bargaining, the union defendants have breached their fiduciary duty of fair representation. Plaintiffs seek declaratory and injunctive relief, an accounting and money damages.⁴

The parties agree that the cases before this court — i. e., the Seay cases — are basically the same as a parallel case that twice was before the Tenth Circuit. That parallel case is commonly called Reid v. United Automobile Workers, 443 F.2d 408 (10th Cir. 1971) ("Reid I"), 479 F.2d 517 (10th Cir. 1973) ("Reid II"), cert. den., 414 U.S. 1076, 94 S.Ct. 592, 38 L.Ed.2d 483 (1973). The Seay cases and the Reid case involve the same factual issues, the same legal issues, the same employer (McDonnell Douglas Corporation), and prayers for the same relief. (Tr. at 4-6 & 50.⁵) The named plaintiffs, the union and its counsel are different, but plaintiffs' lead counsel is the same.

The plaintiffs in Reid, non-union employees of McDonnell Douglas Corporation, filed suit in the United States District Court for the Northern District of Oklahoma against their employer and the United Automobile Workers (the "UAW"). In their complaint, filed in November 1967, the Reid plaintiffs alleged that "the Union used a portion of their compulsory agency fees in the support of political and economic doctrines, ideologies, and legislative programs to which they are opposed and which are not reasonably necessary to collective bargaining." Reid II, supra, 479 F.2d at 518. The plaintiffs sought a declaratory judgment, injunctive relief and damages.

The UAW conceded in Reid that:

"(1) it spends compulsory agency fees and union dues for the support of candidates for state and local office and for legislative, educational, citizenship, and social objectives of the Union, (2) it stands in a fiduciary relationship to plaintiffs and owes them the duty of fair representation, and (3) an employee who must pay agency fees as a condition of continued employment and who objects to the use of a portion of his fees for political and ideological purposes with which he disagrees has a right, after specifically informing the Union of his objection, to request and receive a pro rata rebate." Reid II, supra, 479 F.2d at 518.

In the Seay cases before this court, the IAM has now made the same concessions that the UAW made in Reid. (Tr. at 14 & 15.)⁶

In 1968, after the suit in Reid had been filed, the UAW amended Article 16, § 7, of its constitution to give "both a member and a payer of agency fees an intra-union remedy whereby he can receive a pro rata rebate of that portion of his dues or fees spent for political and ideological causes to which he objects." Reid II, supra, 479 F.2d at 518 Article 16, § 7, was amended to read as follows:

"Any member shall have the right to object to the expenditure of a portion of his dues money for activities or causes primarily political in nature. The approximate proportion of dues spent for such political purposes shall be determined by a committee of the International Executive Board, which shall be appointed by the President, subject to the approval of said Board. The member may perfect his objection by individually notifying the International Secretary-Treasurer of his objection by registered or certified mail; provided, however, that such objection shall be timely only during the first fourteen (14) days of Union membership and during the fourteen (14) days following each anniversary of Union membership. An objection may be continued from year-to-year by individual notifications given during each annual fourteen (14) day period.

"(b) If an objecting member is dissatisfied with the approximate proportional allocation made by the committee of the International Executive Board, or the disposition of his objection by the International Secretary-Treasurer, he may appeal directly to the full International Executive Board and the decision of the International Executive Board shall be appealable to the Public Review Board or the Convention at the option of said member." Reid II, supra, 479 F.2d at 518-519 n. 1.

Following the lead of the UAW, the IAM, on June 28, 1973, issued its Official Circular No. 669, which became effective on July 1, 1973. Official Circular No. 669 creates an intra-union remedy for both union members and agency fee employees who object to the use of union dues or agency fees for "activities or causes primarily political in nature" to which they object. Under that intra-union remedy, dissenters are entitled to receive a pro-rata rebate. Official Circular No. 669 is reproduced as follows:

As stated above, Reid has been before the Tenth Circuit twice. The first appeal followed the district judge's dismissal of the action against the UAW on the ground that the preemption doctrine gave exclusive jurisdiction to the National Labor Relations Board. The district judge had also dismissed the action against McDonnell Douglas for failure to state a claim for which relief could be granted. The Tenth Circuit affirmed the dismissal of the action against the employer, but reversed the dismissal of the action against the union on the ground that jurisdiction "conceivably" existed under Vaca v. Sipes, 386 U.S. 171, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967), for breach of the union's duty of fair representation. Reid I, supra, 443 F.2d at 411-412. Under Vaca v. Sipes, a plaintiff, in order to establish a breach of the duty of fair representation, must prove that the "union's conduct toward a member of the collective bargaining unit is arbitrary, discriminatory, or in bad faith." 386 U.S. at 190, 87 S.Ct. at 916.

On remand of Reid, the district judge considered the effect of the intra-union rebate procedure that had been adopted after the suit had been filed and granted summary judgment in favor of the UAW. In affirming that ruling in Reid II, the Tenth Circuit said:

". . . . Our problem is whether the record supports a claim of unfair representation.

"Our first decision holds that plaintiffs' claim of unfair representation is sufficient to establish jurisdiction in the federal courts under the doctrine of Vaca v. Sipes, citation omitted. It did not determine the merit of that claim. The question of merit must be determined under the standards mentioned in Vaca, citation omitted and those stated in the later decision of Motor Coach Employees v. Lockridge, 403 U.S. 274, 299, 301, 91 S.Ct. 1909, 29 L.Ed.2d 473. If those standards are not met, the claim of unfair representation falls. The standards are whether union conduct is arbitrary, discriminatory or in bad faith, 386 U. S. at 190, 87 S.Ct. 903, and whether there is fraud, deceit, dishonest conduct, or discrimination that is intentional, severe, and unrelated to legitimate union activities. 403 U.S. at 299, 301, 91 S.Ct. 1909.

"In the record before us we find no facts establishing discrimination, fraud or dishonesty. Plaintiffs, by speculative, conclusionary, and argumentative statements condemn the Union remedy i. e., the intra-union rebate procedure contained in Article 16, § 7, of the UAW constitution as unfair, unreasonable, and unworkable. Those statements do not suffice to create an issue of fact. Citations omitted. We have no concrete particulars to sustain any of the elements which the Supreme Court says are pertinent to a claim of unfair representation. At the most the statements are conjectures as to how the union remedy might work in imagined circumstances.

"We attach no significance to the fact that the Union remedy is provided by a constitutional amendment adopted during the pendency of this litigation. It may be true that the Union saw the handwriting on the wall and decided that under Street and Allen some remedy must be made available. The question is whether that remedy, on its face, negates the unfair representation charge. We believe that it does." 479 F.2d at 520.

One of the Seay cases (Docket No. 67-1394-HP) has already been before the Ninth Circuit. Seay v. McDonnell Douglas Corporation, 427 F.2d 996 (9th Cir. 1970). That appeal was from this court's order dismissing the complaint for lack of jurisdiction on the...