Unpublished Disposition, 874 F.2d 815 (9th Cir. 1988)

No. 88-5803.

United States Court of Appeals, Ninth Circuit.

Before EUGENE A. WRIGHT and FARRIS, Circuit Judges, and FERN M. SMITH,^*  District Judge.

MEMORANDUM^** 

* Jimmy Fernandez-Lopez, Rocco Papietro, Gary Gromer, Wayne Jones, Glen Toon, William Goffinette, and Dale Peterson (collectively, plaintiffs) appeal from the district court's grant of summary judgment in favor of the International Union of Petroleum and Industrial Workers (hereinafter IUPIW) and George R. Beltz, president of the IUPIW.

Plaintiffs are members of local unions of the IUPIW, a labor organization that represents employees of oil, trucking, warehouse, manufacturing, maintenance and construction companies.¹  George R. Beltz has been the president of the IUPIW since October of 1982. In California, the IUPIW is divided into three Districts, and each District has at least two Locals under charter with the IUPIW.

Since 1983, the IUPIW policy was to merge or dissolve any Local with less than 150 members. A merger, dissolution or formation would occur at the request of the president of IUPIW and the concurrence of the five member Executive Board. Under Article V of the IUPIW Constitution, the merger, dissolution or formation occurs as "the conditions and policy of the International warrants." A number of mergers have been instituted since 1983.

According to the IUPIW, the IUPIW began considering a plan to reorganize the Locals in December of 1986. Under the reorganization plan, the employees of the large employers (Unocal, Chevron and Timec) would be assigned to Locals defined by employer rather than geographical locations. Under the plan, all employees of Chevron would be in a Chevron Local, employees of Unocal would be in a Unocal Local, etc. The plan was approved by the Executive Board at the January 30, 1987 meeting (the previous Executive Board meeting had been held in November 21, 1986), and was to be effective on February 1, 1987.

In the meantime, on December 20, 1986, each individual plaintiff sent to Beltz a written declaration of his candidacy for officer of the IUPIW.²  The plaintiffs also requested the names and addresses of each member of their respective Locals, in order to notify the individual Local members of their candidacy. On February 3, 1987, Beltz informed the plaintiffs that the membership lists were being compiled and would be forthcoming. On February 6th, the plaintiffs were notified that Locals 4, 8 and 29 had been dissolved as of February 1st.

A membership list of each newly reorganized Local was sent to the officers of each Local. Former officers of a geographical Local who were not officers of a company Local after the reorganization would not receive a copy of the list.³ 

The reasons for the restructuring of the IUPIW are in dispute. The IUPIW contends that the reorganization was necessary in order to better monitor receipts and expenditures for the employees of a particular company. For example, the IUPIW wanted to keep track of the expenditures for the employees of Chevron, which was difficult due to the mixture of employers represented in each Local. By isolating income or expenditures to a particular company Local, it hoped to keep down expenses. The appellants contend that the reorganization was actually a political attempt to silence any opposition to the existing Board before the imminent IUPIW election. The appellants argue that the computers could have created any data necessary to monitor the receipts and expenditures of the employees of a particular employer.

On March 20, 1987, the plaintiffs filed a complaint for damages and injunctive relief, in the Central District of California, against IUPIW and Beltz for the following violations, under 29 U.S.C. section 411 et seq., of the Labor Management Reporting and Disclosure Act (LMRDA): interference with freedom of assembly and speech (section 412); improper trusteeship (sections 462 & 464); breach of fiduciary duty (section 501 & 502).

On July 27, 1987, the district court granted the defendants' motion to dismiss the third cause of action (breach of fiduciary duty). On October 27, 1987, the district court denied the plaintiffs' motion for summary judgment, granted the defendants' motion to dismiss the second cause of action (improper trusteeship), and denied the defendants' motion for summary judgment on the first cause of action (assembly and speech). At the hearing, the district court indicated that it would accept additional submissions by the defendant in a renewed motion for summary judgment. On February 25, 1988, the district court granted the defendants' renewed motion for summary judgment as to the first cause of action, and judgment was entered in favor of the defendant. The plaintiffs timely appealed.

This Court reviews a grant of summary judgment de novo. Darring v. Kincheloe, 783 F.2d 874, 876 (9th Cir. 1986). This Court's review is governed by the same standard used by the trial court under Fed. R. Civ. P. 56(c). Id. This Court must determine, viewing the evidence in light most favorable to the nonmoving party, whether there are any genuine issues of material fact and whether the district court correctly applied the substantive law. Ashton v. Cory, 780 F.2d 816, 818 (9th Cir. 1986). See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986).

The appellants argue that the district court erred in granting summary judgment because there existed a triable issue of fact as to whether the IUPIW violated their rights guaranteed under the LMRDA. The appellants argue that the district court erred in ruling that the reorganization of the Locals was not motivated by bad faith and intended to interfere with free speech.⁴ 

Section 411(a) (1) of 29 United States Code provides, in relevant part, that: "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 ... subject to the organization's established and reasonable rules pertaining to the conduct of meetings...." Section 412 provides: "Any person whose rights secured by the provisions of this subchapter have been infringed by any violation of this subchapter may bring a civil action...." These two sections, part of the 'Bill of Rights of Members of Labor Organizations' (29 U.S.C. sections 411-415), were created by Congress in order to address the 'widespread abuse of power by union leadership.' Finnegan v. Leu, 456 U.S. 431, 435-36 (1982).

Section 411 is essentially applicable to and protection for the rank-and-file members of an organization. Finnegan, 456 U.S. at 436-37. As this Court has pointed out: "Thus, an individual may state a cause of action under section 101 [29 U.S.C. section 411] only for those acts which violate his membership rights, and not for those which infringe upon whatever rights he may have acquired by virtue of his status as an officer or employee." Lynn v. Sheet Metal Workers' International Association, 804 F.2d 1472, 1478 (9th Cir. 1986).

Section 412, on the other hand, has not been limited to protecting members, but protects "any persons whose rights secured by the provisions of this subchapter have been infringed" (emphasis added). See Finnegan, 456 U.S. at 439 (section 412 provides independent authority for a suit against union based on an alleged violation of Title I of the Act). For example, section 412 has been held to protect elected officers removed when it "occurs as a 'purposeful and deliberate attempt to suppress dissent within the union.' " Brett v. Hotel, Motel, Restaurant, Construction Camp Employees and Bartenders Union, Local 879, 828 F.2d 1409, 1415 (9th Cir. 1987) (quoting Lynn, 804 F.2d at 1478).

As to a section 411 membership violation, two arguable claims exist with respect to interference with the appellants' Title I rights: (1) some of the appellants would be required to travel further in order to participate as members of their new Local; (2) Fernandez-Lopez, as a member rather than an officer, was not sent a copy of the mailing list of membership names and addresses. Appellant does not contend that any member of the Local was excluded from any membership rights or privileges, except those incident to the restructuring.

a. Increased Travel

With respect to the additional travel required by members of the various Locals, the appellants have failed to show that the district court erred by not ruling that the geographical changes in the restructuring of the Locals constituted a violation of section 411. In Cooke v. Orange Belt Dist. Council of Painters, 529 F.2d 815, 818-19 (9th Cir. 1976), this Court held that an official's reassignment initiated against an official for intra-union political activity is governed by 411(a) (1) and (a) (2) and could constitute a violation of 29 U.S.C. section 529 (unlawful for a union to "fine, suspend, expel or otherwise discipline any of its members for exercising any right which he is entitled under the provisions of this chapter"). The Court ruled that, in order to show that the reassignment constitutes improper discipline, the official must show that the reassignment cannot be reasonably related to the legitimate desire of the elected officials to secure a structure of job assignments that will permit them to manage the union in accordance with the mandate of their election. Id. at 819; see also Grande Lodge of International Ass'n of Machinists v. King, 335 F.2d 340, 344 (9th Cir.), cert. denied, 379 U.S. 920 (1964).

First, appellants have made no showing that the loss of an officer position or the restructuring of the Locals was in retaliation for their political activities. Appellants merely suggest that, because of the chronology of events, an inference is raised as to motive behind the restructuring.

Second, it is questionable whether the holdings in Cooke and Grande Lodge remain valid after the Supreme Court's ruling in Finnegan v. Leu, 456 U.S. 431, 432 (1982) (the Court cited Grande Lodge in a footnote after noting conflict among the circuits). In Finnegan, the Court specifically rejected the proposition that Union officers, as officers, are protected by section 411. Although a cause of action under 412 is still possible, Lynn v. Sheet Metal Workers' Intern. Ass'n, 804 F.2d 1472, 1478-79 (9th Cir. 1986), appellants did not present any showing of actual loss of benefits or privileges relative to their status as members of the IUPIW.⁵ 

b. Membership Lists

As to the release of a membership list to members who were officers prior to the restructuring, in Lodge 1380, et al. v. Dennis, 525 F.2d 819, 828 (9th Cir. 1980) the Court ruled that 'interference with protected rights [under section 411(a) (2) ] may well occur as effectively by denial of access to mailing lists or refusal to hold a referendum as by direct reprisal.'⁶  Nonetheless, the Court in Lodge 1380 did not specifically outline when such a denial of access constitutes interference with Section 411(a) (2). Further, unlike the present case, Lodge 1380 was only at the Fed.R.Civ.P 12(b) dismissal stage. Id. (plaintiff Lodge "must be given the opportunity to present its case")

In Carothers v. Presser, 818 F.2d 926, 929 (D.C. Cir. 1987), the Court held that there exists no independent right of access to a Union's mailing list under the LMRDA. Rather, a right of access may be ordered by a district court only after a finding of a violation of the LMRDA. The Court ruled that the district court erred in concluding that the LMRDA itself guarantees a union member the right of access to the Union's mailing list. Id. at 931; see also Sheldon v. O'Callaghan, 497 F.2d 1276 (2d Cir.), cert. denied, 419 U.S. 1090 (1974) (denial of access to mailing list in light of repeated publication of Union's proposal found to be so patently unfair as to constitute a denial of member's equal right to vote). In the case at bar, the district court found no independent violation of the LMRDA, nor does the record support such a finding. Accordingly, the district court did not err in failing to rule that the denial of direct access to the IUPIW's mailing list violated LMRDA.

Finally, in order to establish a section 412 violation, the plaintiffs would have to prove that the removal was a purposeful and deliberate attempt to suppress dissent within the union. Brett, 828 F.2d at 1415; Lynn, 804 F.2d at 1478; Schonfeld v. Penza, 477 F.2d 899, 904 (2d Cir. 1973). Thus, the plaintiffs could state a cause of action if able to show that "he or she suffers a retaliatory removal which occurred as a purposeful and deliberate attempt to suppress dissent within the union." Brett, 828 F.2d at 1416 n. 11. The record fails to indicate that the district court erred in not finding that the reorganization and the subsequent removal of some of the officers from the Locals was a deliberate attempt to suppress dissent. Accordingly, the district court did not err in granting summary judgment on this claim.

AFFIRMED.