United Steelworkers of America, AFL-CIO v. University of Alabama

• Decision Date: 18 July 1979
• Docket Number: No. 77-2258,AFL-CIO,77-2258
• Citation: 599 F.2d 56
• Parties: 115 L.R.R.M. (BNA) 4316 UNITED STEELWORKERS OF AMERICA,, etc., Plaintiff-Appellant, Stephen L. Downey et al., Plaintiffs, v. UNIVERSITY OF ALABAMA, etc., et al., Defendants, Joseph F. Volker, etc., et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 56

599 F.2d 56

115 L.R.R.M. (BNA) 4316

UNITED STEELWORKERS OF AMERICA, AFL-CIO, etc., Plaintiff-Appellant Stephen L. Downey et al., Plaintiffs, v. UNIVERSITY OF ALABAMA, etc., et al., Defendants Joseph F. Volker, etc., et al., Defendants-Appellees.

No. 77-2258.

United States Court of Appeals Fifth Circuit.

July 18, 1979.

George C. Longshore, Birmingham, Ala., Bernard Kleiman, Chicago, Ill., for plaintiff-appellant.

John J. Coleman, Jr., James P. Alexander, Birmingham, Ala., for plaintiffs.

Appeal from the United States District Court for the Northern District of Alabama.

Before WISDOM, CLARK and FAY, Circuit Judges.

FAY, Circuit Judge:

This case concerns job terminations of certain employees in the Maintenance and Building and Alterations Departments of the University of Alabama at Birmingham (UAB). The employees' Union asserts that the terminations were violative of the employees' first, fifth and fourteenth amendment rights. From the granting of a summary judgment in favor of defendants-appellees in the United States District Court for the Northern District of Alabama, plaintiff Union appeals. We affirm.

FACTS

On August 13, 1975, plaintiff Strevel, acting in his capacity as Director of District 36 of the United Steelworkers of America, AFL-CIO (USW), wrote a letter to UAB President Volker informing him that the Union represented a majority of the hourly paid employees in the Maintenance and Building and Alterations Departments of UAB and requesting a meeting with UAB officials "to establish an appropriate collective bargaining relationship." The University responded by letter of August 26 to Strevel from the Director of Personnel Services, Lionel C. Skaggs. Skaggs noted that while UAB recognized that its non-supervisory employees were free to join any labor organization, UAB was prohibited by Alabama law from entering into a collective bargaining contract with USW.

The Union thereupon brought suit in Federal District Court seeking a declaration of rights of the parties. Judge Hancock issued an order acknowledging the right of both supervisory and non-supervisory employees to express their views and opinions on matters of concern to them, including employment matters, to the public and the University, and recognizing the employees' rights to join any labor union or other similar organization. The order went on to state, however, that while the employees were free to communicate with the University through any spokesman or representative, and while the University "must give any such expressions due consideration there is no requirement that UAB . . . accept such expressions or, where made through a spokesman or representative, recognize the spokesman or representative as an agent for collective bargaining, as that term is generally understood." United Steelworkers of America, AFL-CIO, et al. v. University of Alabama in Birmingham, et al., No. Civ. 75H-1788-S (N.D.Ala., Oct. 24, 1975). No appeal was taken from that order.

The order resulted in a series of four meetings between Union representatives and UAB officials, during which suggestions and comments of the employees and the Union were discussed. The University's response apparently did not satisfy the Union and employee representatives. The fourth meeting was terminated abruptly, followed by a strike of the employees in the Maintenance and Building and Alterations Departments, which commenced on March 31, 1976.

On Friday, April 2, 1976, Skaggs informed each of the striking employees by telegram that they were in the second day of unexcused absences from work and reminded them of the established written policy of UAB set forth in the UAB Non-Academic Personnel Handbook that "unexcused absence for three days without notification or reasonable cause" constituted grounds for dismissal.

The strike lasted about seven days. All employees participating in the strike were disciplined on a progressive basis by UAB, as follows: (i) employees absent for one day were placed on probation for 60 days; (ii) employees absent for two days received 90 days probation; (iii) employees absent for three days received 180 days of probation and one day of suspension from work; (iv) employees absent for four days received 180 days probation and two days of suspension from work; (v) employees absent for five days received 180 days probation and three days suspension from work; and (vi) employees absent for a period in excess of five days were terminated.

On April 16, 1976, twenty-one former hourly employees of UAB, the District Director of USW and the USW brought this action for injunctive relief and damages against UAB, the Board of Trustees of the University of Alabama, University of Alabama President Joseph Volker and UAB Director of Personnel Services Skaggs. The complaint alleged that the UAB discharge of the individual plaintiffs amounted to a denial of their first, fifth and fourteenth amendment rights. Plaintiffs sought declaratory and injunctive relief and an award of damages.

On April 19, 1976, following a denial of plaintiffs' application for preliminary relief, the District Court stated that it would retain jurisdiction pending exhaustion by the individual plaintiffs of the UAB's internal grievance procedures. Shortly thereafter, the District Court dismissed the charges against UAB and the Board of Trustees. Following the processing of the grievances of the individual plaintiffs through the steps of the UAB grievance procedure, the District Court granted motions for summary judgment filed by the remaining defendants. The United Steelworkers of America appeal this decision.

I. STANDING

The first issue which we address is that of the standing of the Union to pursue this appeal. Appellee notes that the Union is the only party plaintiff who has appealed the summary judgment. Appellee asserts that while the Union has many legitimate concerns with regard to such matters as its status as an organization or the extent to which it may act as a bargaining representative for public employees, it has no standing to pursue, as an entity, the specific individual claims of UAB employees terminated for extended and unexcused absences from work. Appellant counters that since the Union has standing to represent its members and to assert their rights, "well-established precedents allow this Court to consider the merits of the individual plaintiff's claims."

In Warth v. Seldin, 422 U.S. 490, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975), the Supreme Court considered the rights of an association to represent its members. In that case, the intervenor Home Builders Association, consisting of residential construction builders, sued a municipality alleging that certain zoning restrictions deprived some of its members of substantial business opportunities. Home Builders alleged damages in the amount of $750,000. With respect to the damages claim, the Court stated:

* * * (W)hether an association has standing to invoke the court's remedial powers on behalf of its members depends in substantial measure on the nature of the relief sought. If in a proper case the association seeks a declaration, injunction, or some other form of prospective relief, it can reasonably be supposed that the remedy, if granted, will inure to the benefit of those members of the association actually injured. Indeed, in all cases in which we have expressly recognized standing in associations to represent their members, the relief sought has been of this kind. . . .

The present case, however, differs significantly as here an association seeks relief in damages for alleged injuries to its members. Home Builders alleges no monetary injury to itself, nor any assignment of the damages claims of its members. No award therefore can be made to the association as such. Moreover, in the circumstances of this case, the damages claims are not common to the entire membership, nor shared by all in equal degree. To the contrary, whatever injury may have been suffered is peculiar to the individual member concerned, and both the fact and extent of injury would require individual proof. Thus, to obtain relief in damages, each member of Home Builders who claims injury as a result of respondents' practices must be a party to the suit, and Home Builders has no standing to claim damages on his behalf.

Id. at 515-516, 95 S.Ct. at 2213 (citations omitted).

In this case, the relief requested in Count I consists of declaratory and injunctive relief. In particular, plaintiffs seek: 1) a declaration that plaintiffs were terminated from employment without procedural due process; 2) to enjoin defendants from failing and refusing to continue the individual plaintiffs in their respective jobs, 3) to enjoin defendants from refusing to acknowledge their employees' rights to petition for redress of grievances by the Union as their representative, 4) to enjoin defendants from refusing to enter into meaningful discussions with the Union in such a manner as to evidence an intent to resolve the differences that separate the parties, 5) preliminary relief with reinstatement pending disposition, and 6) attorney's fees and other relief as the Court deems proper. Count II seeks monetary damages in the amount of $25,000 per individual plaintiff for the consequential damages occasioned by defendants' allegedly illegal course of conduct.

Under Warth, it is clear that before this Court, the Union has standing to assert the claims aggregated in Count I. In that count only prospective declaratory and injunctive relief is sought. It is equally clear, however, that the Union, absent the individual plaintiffs, may not here appeal the summary judgment with respect to Count II. Here, as in Warth, the association (Union) alleges no monetary injury to itself. The damages are not common to the entire membership nor shared by all in equal degree. Thus Warth teaches, USW has no standing to claim damages on behalf of UAB employees. In order to obtain...