Shimman v. Miller
| Decision Date | 27 July 1993 |
| Docket Number | I,No. 92-3399,18,No. 18,18RA and 18,92-3399 |
| Citation | 995 F.2d 651 |
| Parties | 143 L.R.R.M. (BNA) 2648, 125 Lab.Cas. P 10,716 Ervin SHIMMAN, Plaintiff-Appellant, v. Frank J. MILLER, Individually and as Business Manager and Editor of the Buckeye Engineer, Local Unionnternational Union of Operating Engineers; and Local Unionnternational Union of Operating Engineers, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Alan Miles Ruben (briefed) and Stephen W. Gard (argued and briefed), Cleveland, OH, for plaintiff-appellant.
William Fadel (argued) and Kathleen M. Sasala (briefed), Wuliger, Fadel & Beyer, Cleveland, OH, for defendants-appellees.
Before: NORRIS and SILER, Circuit Judges; and HOOD, District Judge. *
Plaintiff, Ervin Shimman, appeals the district court's judgment for defendants Frank J. Miller and the International Union of Operating Engineers, Local 18, in this action brought pursuant to the Labor-Management Reporting and Disclosure Act, 29 U.S.C. §§ 401-531. We are asked to decide whether defendants' refusal to publish plaintiff's letter to the editor in the union's newsletter violates the free speech provision of the Act, 29 U.S.C. § 411(a)(2).
Out of mounting concern for what it perceived to be a growing trend toward anti-democratic conduct by leaders of some of the nation's labor unions, in 1959 Congress enacted the Labor-Management Reporting and Disclosure Act (the Act). See 29 U.S.C. § 401. Among its protections, the Act contains a union member's "Bill of Rights," which guarantees every union member equal voting privileges, rights of free speech and assembly, and a right to bring suit. In its free speech section, the Act provides:
Every member of any labor organization shall have the right to meet and assemble freely with other members; and to express any views, arguments, or opinions; and to express at meetings of the labor organization his views, upon candidates in an election of the labor organization or upon any business properly before the meeting, subject to the organization's established and reasonable rules pertaining to the conduct of meetings: Provided, That nothing herein shall be construed to impair the right of a labor organization to adopt and enforce reasonable rules as to the responsibility of every member toward the organization as an institution and to his refraining from conduct that would interfere with its performance of its legal or contractual obligations.
In Knox County Local, Nat'l Rural Letter Carriers' Ass'n v. National Rural Letter Carriers' Ass'n, 720 F.2d 936 (6th Cir.1984), this court dealt with a claim that § 411(a)(2) had been violated. There, the officers of the national union had negotiated a collective bargaining agreement with the postal service and used the national union's weekly magazine to urge ratification of the agreement. Id. at 937. The local union viewed the proposed contract as deficient and attempted to place an advertisement in the magazine that discouraged the agreement's ratification. The national union refused the ad, contending that it would create "internal union strife." Id.
This court noted that § 411 "was designed to allow members to participate actively in a 'democratic' union," and that while it did not incorporate the full body of First Amendment law, see United Steelworkers v. Sadlowski, 457 U.S. 102, 109, 102 S.Ct. 2339, 2344, 72 L.Ed.2d 707 (1982), a court's inquiry under § 411 is guided by First Amendment free speech principles. Id. 720 F.2d at 938-39. We concluded that the advertisement was the type of speech protected by the First Amendment and the Act. Moreover, the national union's refusal to publish the ad was "purely content-based." Id. at 940. This was impermissible because the union had " 'opened the forum' of its publication to the commercial speech of its members and of merchants." Id. In sum, the court held that § 411(a)(2) prevents "those in 'control' of a protected, open and exclusive forum of communication from unreasonably refusing to allow co-owners access to that forum based solely upon the content of their expression." Id. at 941.
The International Union of Operating Engineers, Local 18, represents between 12,700 and 14,000 operating engineers, who operate cranes, hoists, earth movers, and hauling equipment in eighty-five counties in Ohio and four counties in Kentucky. Since the 1950s, the international union has attracted attention for alleged unfair labor practices. Local 18 has experienced internal turmoil as well. Since the 1970s, this court has been called upon to review a number of disputes involving union members' claims for hiring hall discrimination, assaults, and unfair discipline. 1
Plaintiff has been a member of Local 18 for over forty years, and has spent much of this time as a dissident in his relationship to officers of the local. He also has run for union office.
In 1984, Senator Orrin Hatch convened hearings of the Senate Committee on Labor and Human Resources to investigate charges of employment referral discrimination in the construction trade, with Local 18 being a target of scrutiny. Plaintiff, another Local 18 member, and their lawyer testified about alleged manipulation of the hiring hall by the local for the purpose of discriminating against those who disagreed with the policies of incumbent union leadership.
During this time, defendant Miller was business manager of Local 18 and editor of the local's newsletter, the Buckeye Engineer. When Miller became aware of the Hatch hearings, he published an article in the April 1984 issue of the Buckeye Engineer informing members that the "notorious anti-union senator, right-wing Republican Orin [sic] Hatch" recently had presided over hearings that were "neither fair nor impartial." In addition, Miller reported that [t]wo members of Local 18 were permitted to testify as was a lawyer representing members suing Local 18. Although the committee was notified in advance, Local 18's lawyer was not permitted to testify or present documents which would have clearly shown that the allegations and accusations were false or misleading. Most of the events giving rise to the allegations made by the two Local 18 members occurred in the late 1960's and mid-1970's, all of which have been litigated in the courts and are still pending on appeal.
Plaintiff interpreted this article as attacking him and responded with a letter to the editor. The letter explained the nature of the hearings and the allegations made before the committee and pointed out that Miller had declined the committee's invitation to testify. Plaintiff concluded with a request that his letter be published in the Buckeye Engineer, "so I too can get the truth before all the members of Local 18." Miller refused to print the letter. As his deposition testimony makes clear, the only reason for this refusal was that he disagreed with the letter's content.
Plaintiff filed suit in federal district court against Miller and Local 18, alleging that the refusal to publish his letter violated the free speech rights embodied in § 411(a)(2). In addition, he charged that there is no economically feasible alternative method by which to disseminate his message because few members attend meetings and no member is permitted to obtain the union mailing list. He requested the court to require Miller to pay damages, order defendants to print his letter to the editor responding to Miller's April 1984 article in the newsletter, and require defendants to adopt neutral procedures for allowing publication of members' views.
In April 1985, the district court dismissed the complaint for failure to state a claim, and in March 1986, this court reversed, holding that plaintiff had adequately stated a claim for relief.
On remand, after the case had been submitted to the court upon the record, the district court in March 1992 entered judgment for Local 18. 2 The court held that the union had not opened the Buckeye Engineer to the opinions of its members as required by Knox County. According to the district court, Miller, as editor, had the discretion to select what articles were printed. Therefore, his refusal to publish plaintiff's letter was not an unreasonable act of censorship in derogation of any rights to free speech which plaintiff might enjoy under the Act. The district court further concluded that the relief requested would result in an unjustified interference with internal union affairs, and also indicated that plaintiff may have failed to exhaust his intra-union remedies. Plaintiff appeals these rulings.
Local 18 asserts that this court should not hear the appeal because plaintiff failed to pursue his remedies within the union before filing suit. See 29 U.S.C. § 411(a)(4). We disagree. The union has not cited any pertinent remedies in its bylaws for the refusal to print a letter in the union newsletter. See Verville v. International Ass'n of Machinists & Aerospace Workers, 520 F.2d 615, 620 (6th Cir.1975) (); see also Keeffe Bros. v. Teamsters Local 592, 562 F.2d 298, 303 (4th Cir.1977) (). Accordingly, this court has jurisdiction to hear plaintiff's appeal.
In order to determine if Miller's refusal to publish plaintiff's letter violated the Act, we must ascertain whether the Buckeye Engineer was such a "protected, open and exclusive forum of communication" that Miller was prohibited from "unreasonably refusing to allow co-owners access to that forum based solely upon the content of their expression." Knox County, 720 F.2d at 941.
Initially, we note that since members have no access to the local's mailing list, the Buckeye Engineer is...
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...LMRDA § 101(a)(2) clause establishes a tight nexus between LMRDA claims and First Amendment principles and tests. See Shimman v. Miller , 995 F.2d 651, 653 (6th Cir. 1993) (interpreting Sadlowski as saying "a court's inquiry under § [101(a)(2)] is guided by First Amendment free speech princ......
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