|
|
 |
|
Protecting citizens' rights in the courts
|
|
||||
|
|
 |
|
||||
|
|
  DONALD BLACK,
v. Nos. 90-6219 90-6278 TEAMSTERS LOCAL 519 et al.,
In this action, a jury returned a verdict awarding modest damages in favor of a union member because two Teamster unions retaliated against him by suspending him from membership, fining him, and denying him work, for having exercised his free speech rights under the Labor-Management Reporting and Disclosure Act of 1959 ("LMRDA"). In order to avoid having to confront the highly deferential review that is accorded to a jury's factual determinations, the Teamsters have cast their appeal, with two minor exceptions, as objections to the legal standards under which the jury was instructed; they also take the liberty of reciting in their factual statement of the case only those pieces of evidence that were favorable to their case, but which the jury apparently rejected. However, the legal objections that the Teamsters advance are squarely contrary to appellate and Supreme Court precedent under the LMRDA, and the unions' appeal should therefore be rejected. Plaintiff's cross-appeal the district court's denial of attorney fees incurred to induce the union to rescind the discipline and to obtain the award of damages. The district court refused to award fees because it believed that this Court's decision in Shimman v. Operating Engineers Local 18, 744 F.2d 1226 (1980), forbids any attorney fee awards on a common benefit theory whenever a finding of liability for free speech violations is accompanied by a damages award. Because such an expansive interpretation of Shimman to preclude any discretion to find common benefit whenever damages are awarded is not only unwarranted, but would undercut the Congressional objective of providing an effective system of judicial redress for free speech violations, the denial of attorney fees should be reversed. 1. May a union punish one of its members for his exercise of his free speech rights whenever it can create "some evidence" of a proper reason for punishment, or should the court assure itself by de novo review that the retaliation was not motivated in any substantial part by the exercise of free speech rights? 2. In deciding whether a union's action against one of its members was motivated by his free speech activities, are the courts forbidden from using the Mt. Healthy approach to burdens of proof that is used under other federal statutes forbidding employer retaliation for protected activity? 3. Does a union "infringe" the free speech rights of one of its members when it denies him hiring hall referrals in retaliation for having exercised those free speech rights? 4. Was the jury's verdict as to compensatory damages supported by the evidence? 5. When a union member is found to have suffered retaliation for his exercise of free speech rights, and receives a modest award of damages, does the personal nature of this relief automatically preclude an award of attorney fees even though the vindication of his free speech rights also benefited the membership as a whole? A. Facts. The unions' account of the proceedings below is accurate, but their statement of the facts is fundamentally flawed because it recites only those portions of the evidence that were favorable to the unions' position, but which the jury chose not to credit. The following is an account of the testimony favorable to the plaintiff's position, which supports the jury's verdict. Prior to November 26, 1984, plaintiff-appellee was a truck driver for Ryder/PIE Nationwide and a member of Local 519 in Knoxville, Tennessee. (D. Black 6/28 TR 3-8) As a union member, plaintiff had been actively involved and a leader in attempting to make the Teamsters union more democratic in its dealings with the membership, in attempting to end corruption within the Local union, and in several other extremely contentious problems involving Local 519. (D. Black 6/28 TR 9-24; Howard 6/26 TR 92-95; J. Black 6/27 TR 9-29; Jernigan 6/27 TR 55-57; Walker 6/27 TR 80-82; Chambers 6/27 TR 100-101; Isbell 6/27 TR 106-109) This dissension and political movement within Local 519 culminated with the establishment of a picket line around the local union hall on July 30-31 and August 13-14, 1984. (J. Black 6/27 TR 20) Plaintiff Black and others testified that their reasons for the establishment of the picket line around the Local union hall was to bring to the attention of the International union the corruption within Local 519, the misuse of union funds by the incumbent officers, the illegal use of the out-of-work book by the incumbents to reward their political friends and punish their political enemies, and a variety of other types of misconduct and illegal activities by the Local's governing officials. (D. Black 6/28 TR 9-23, 23-25, 48-49; Howard 6/26 TR 95-100; Jernigan 6/27 TR 58-61; Walker 6/27 TR 82-83; Chambers 6/27 TR 101-102; Isbell 6/27 TR 109-111). Because of Black's active participation in union affairs, he found himself in increasing conflict not only with the established political structure within the local union, but also with other bodies within the Teamsters union and the Joint Council 87. For instance, plaintiff's announced intention to run for the presidency of the 2,000 member Local 519 in 1985 put him at odds not only with the Local incumbents, but also with Luther Watson and his allies, who were powerful figures within the Teamsters union. (Howard 6/26 TR 91, 100-102; J. Black 6/27 TR 26-27; Walker 6/27 TR 83-85; Chambers 6/27 TR 101-102; Isbell 6/27 TR 108-109, 111; D. Black 6/28 TR 32, 9-25) At the time in question, Watson was the chief executive officer of Joint Council 87, and, as such, a member of the Executive Board of the Joint Council that heard plaintiff's case. (Watson 6/27 TR 142-154; Howard 6/26 TR 90-91, 95, 100-102; J. Black 6/27 TR 27; Jernigan 6/27 TR 57; Walker 6/27 TR 83-85; Chambers 6/27 TR 100-102; Isbell 6/27 TR 111; D. Black 6/28 TR 25, 48-49) After Black announced his candidacy for President of Local 519, the incumbent union leadership lodged disciplinary charges against Black and his supporters with the Joint Council on August 16, 1984. (Howard 6/26 TR 100-102; J. Black 6/27 TR 26-27; Walker 6/27 TR 85; Chambers 6/27 TR 102; D. Black 6/28 TR 25) Ostensibly, these charges against the plaintiff and others emanated from a peaceful, informational picket established by them around the union hall on July 30-31, 1984 and August 13-14, 1984. (J. Black, 6/27 TR 20; Plaintiff's Exhibit 4; Plaintiff's Exhibit 23; Defendants' Exhibit 17). Recognizing that a peaceful picket is protected by the LMRDA,(1) the unions here tried the case to the jury on the theory that Black had fomented and engaged in violent acts that were unprotected by the free speech provisions of the LMRDA. In fact, however, Black and his witnesses stoutly denied the allegations of violence or other forcible exclusion of anybody from the union hall. (Howard 6/26 TR 95-100; J. Black 6/27 TR 21-26; Jernigan 6/27 TR 58-61, 69-70, 78; Walker 6/27 82-83, 93-98; Chambers 6/27 TR 102; Isbell 6/27 TR 109-111, 134-136 D. Black 6/28 TR 25-27). Although the defendants put on some proof in support of their claim that some protesters sought to exclude persons from the union hall by means other than persuasion, (Sharp 6/29 TR 77; Moir 6/29 TR 170; Jordan 6/19 TR 95), the jury chose to credit plaintiff's witnesses rather than defendants' witnesses. Significantly, even the evidence cited in the unions' appellate brief did not purport to show Black's participation in unprotected activity; rather, the unions' evidence showed, at best, that Black sponsored a picket line during which some other persons may have engaged in inappropriate actions for which they could have been punished. Thus, the credible proof, accepted by the jury at trial, showed that there was no violence whatsoever or other improper conduct on the part of Black, that the joint council had no credible basis for punishing him for the two charges on which he intra-union discipline was based, and that the other seven charges lodged against Plaintiff were completely baseless. (Howard 6/26 TR 95-100; J. Black 6/27 TR 21-26, 52-53; Jernigan 6/27 TR 58-61, 69-70, 78; Walker 6/27 82-83, 93-98; Chambers 6/27 TR 102; Isbell 6/27 TR 109-111, 134-135, 135-136; Watson 6/27 TR 155-160; D. Black 6/28 TR 26-27, 31-32; Moir 6/29 TR 6-60).(2) The proof showed that plaintiff's union conviction on the two charges and his consequent fine and suspension rendered it impossible for him to run for union office, to speak out at meetings or to fully participate in the movement to rid the Local union of the rampant corruption. (D. Black 6/28 TR 48-51) It further showed that the incumbent leadership within Local 519 used the out-of-work book (a list showing priority for hiring hall referrals) specifically against both Black and his son, Johnny Black, as punishment for their outspoken opposition to the incumbent's policies. Both men testified that, although there were somewhere between 50 and 70 names between them on the referral list, they received calls for the same heavy labor job within ten (10) minutes of each other. They further testified that plaintiff Black was in poor physical condition and ill-suited for this type of work. Plaintiff testified that when he asked about the type of work involved in the job, the local president assured him no heavy lifting or other strenuous exertion would be required. The men then testified that when they got to the job site, the job consisted solely of heavy labor and lifting such that the plaintiff was subsequently injured. (J. Black 6/27 TR 27-30; D. Black 6/28 TR 38-42) B. Proceedings Below. On June 14, 1985, plaintiff Black filed suit against both the union defendants here and against an employer from which he alleged he had been discharged through the connivance of the unions, in violation of their duty of fair representation ("DFR"). The year after the action was filed, the Local 519 administration that had brought charges against Black and his fellow members was voted out of office, Docket No. 264, Black Affidavit, ¶ 2, and the unions' rescinded all formal discipline that had been imposed on Black. Plaintiffs' Exhibit 6. The duty of fair representation aspect of the action was dismissed, for reasons that are discussed in a separate appeal. The LMRDA claims went to trial, resulting in an award of $160,000 in compensatory damages and $110,000 in punitive damages. The district court granted a new trial, however, because some evidence had been improperly introduced at trial, and because the damages were excessive. At the second trial, the jury awarded Black $30,000 in compensatory damages and $10,000 in punitive damages against Local 519, and $20,000 in compensatory damages and $5000 in punitive damages against Joint Council 87. However, the trial court denied any award of attorney fees, holding that fees were precluded by Shimman v. Operating Engineers Local 18, 744 F.2d 1226 (6th Cir. 1984). Docket No. 270, 271. This appeal followed. In this case, the jury found that the union defendants disciplined the plaintiff because he exercised his right of free speech under the LMRDA. As in any other situation in which a plaintiff charges a defendant with retaliatory action, the claim here presented the jury with a question of fact -- was the reason for defendants' discipline one of retaliation, or did they instead act for proper reasons. Under the LMRDA, as in other situations, the courts have held that this is a question to be decided by the trier of fact de novo, rather than under a standard of review that is deferential to the decision of the union that is charged with retaliation. The fact that the wrong-doer in this case was the union, rather than an employer or, for that matter, a state or local government, does not call for a deferential standard of review such as the "some evidence" standard proposed by the union. To be sure, the due process provision of the LMRDA does incorporate, among other things, a "some evidence" standard, but because plaintiff's claim here was under the Act's free speech clause, rather than its due process clause, the "some evidence" standard does not apply. There is no justification for importing the "some evidence" test from the due process context to the free speech context. A due process claim is fundamentally procedural -- did the union use fair decision-making procedures in making its decision to impose discipline? In the course of making such a decision about procedural fairness, it is sensible to use a standard of minimum rationality to preclude a finding of guilt where there is no evidence of impropriety on the member's part. But that logic does not extend to the free speech context, where the question is not whether the procedures were fair but there has been a violation of the member's substantive right of free speech. Moreover, the courts have generally approved the use of the burden-shifting standard first announced by the Supreme Court in the Mt. Healthy case involving free speech rights under the First Amendment, which is comparable to the standard used by the National Labor Relations Board, in deciding whether union disciplinary action was motivated by the desire to suppress protected free speech activity. Similarly, in arguing that the retaliation at the hiring hall is not amenable to judicial review, the union defendants again confuse plaintiff's rights under the LMRDA's due process provision with his rights under the free speech provision. The Supreme Court has erected a relatively high standard for union members to meet before a denial of hiring hall referrals will be treated as "discipline" warranting the panoply of due process protections available under section 101(a)(5) of the LMRDA. However, this Court, and indeed the other courts of appeals, have held that a denial of work opportunities in retaliation for free speech activity is forbidden by section 101(a)(2) of the LMRDA, and the jury's verdict on liability is therefore not subject to attack. Finally, defendants complain that the jury's factual determination on emotional distress damages was incorrect. Their objection is not based on any error of law, however, inasmuch as they do not take issue either with the unanimous view of the circuits allowing such damages, nor with the jury instructions. Instead, they recite the portions of the testimony favorable to their position and argue that, considering only such testimony, the jury could not rationally have decided in plaintiff's favor. The difficulty with this position, of course, is that plaintiff's evidence was to the contrary, and by no stretch of the imagination can the verdict in this case be set aside on the ground that reasonable minds could not differ about the conclusions to be drawn from the evidence. Finally, on the cross-appeal, Black challenges the ruling below that attorney fees are never available when a plaintiff obtains an award of damages. Although we agree that the law of the circuit quite properly gives a district court discretion to deny fees on the common benefit doctrine when a plaintiff obtains a large punitive damages award, which benefits only himself and from which the plaintiff can pay his attorney, the law does not permit denial of fees on the premise that the mere presence of monetary damages negates the common benefit doctrine. In this case there was evidence of common benefit, and the case should be remanded to permit the district court to evaluate the common benefit under standards consistent with the law. I. THE JURY'S VERDICT WITH RESPECT TO LIABILITY SHOULD BE UPHELD BECAUSE THE TRIAL COURT APPLIED PROPER LEGAL STANDARDS IN INSTRUCTING THE JURY WITH RESPECT TO THE UNIONS' LEGAL OBLIGATIONS UNDER THE FREE SPEECH PROVISIONS OF THE LMRDA. In order to evaluate the unions' attack on the verdict as to liability, it is useful to recall the origins of the LMRDA, and the reasons why Congress enacted it. The Act grew out of the McClellan Committee's investigations of autocracy and corruption in the labor movement in the 1950's. S. Rep. No. 187, 86th Cong., 1st Sess. 2 (1959), reprinted in I NLRB, Legislative History of the LMRDA 398 (1959) ("Legis. Hist."). The McClellan Committee investigations revealed many different ways in which corrupt union leaders had dominated unions and remained unaccountable to their members. Unfortunately, Congress found that union officials did not always subscribe to democratic views of what is in the best interest of their members. According to one view, widely-held in the labor movement, labor unions should be regarded as military organizations, for their function is to wage economic warfare with employers . . .. As a wartime army can neither brook divided leadership nor tolerate active dissidents, so must a union punish the trouble-makers in order to close ranks against employers and rival organizations. Cox, Internal Affairs of Labor Unions Under the Labor Reform Act of 1959, 58 Mich. L. Rev. 819, 829 (1960). But when it enacted the LMRDA, Congress rejected that view, concluding that the needs of workers would be better served by truly democratic unions in which policies were formulated and adopted after open discussion, debate, and criticism. Id. As one court has put it, the balance was struck in favor of democracy. Salzhandler v. Caputo, 316 F.2d 445, 451 (2d Cir. 1963); Navarro v. Gannon, 385 F.2d 512, 518 (2d Cir. 1967). According to the unions, however, Congress' intent to protect members against union retaliation based on free speech activity includes neither the right to a de novo hearing in court concerning allegations that the union's motivation was retaliatory, nor any protection against retaliation that takes the form of economic sanctions. According to the unions, when a member raises a charge of retaliation, it suffices for the union to convene a hearing before the very leadership against which Congress intended to provide protection, and to adduce "some evidence" of improper conduct at that hearing. Union Br. at 16-36. The unions further argue that the jury should not have been instructed according to the burden shifting standard used by the Supreme Court in Mt. Healthy City Bd. of Educ. v. Doyle, 429 U.S. 574 (1976), although the only alternate standard that they mention is the "some evidence" standard. Union Br. at 36-40. Finally, the unions argue that, so long as they confine their retaliation to economic sanctions through denial of employment, their action is free from any redress under the LMRDA whatsoever. Union Br. at 40-42. The unions also attack the sufficiency of the evidence to support the verdict with respect to hiring hall retaliation. However, as we now show, none of these arguments have any merit.(3) A. A Union's Liability for "Infringing" Free Speech Rights Under the LMRDA by Disciplinary Action Against a Member Depends on Whether, Based on the Evidence Adduced at Trial, the Union Would Have Taken the Same Action "But for" the Free Speech Activity. 1. Review is De Novo. The principal liability question presented to the jury in this case was whether, in suspending Black's membership, fining him, and denying him hiring hall referrals, the union defendants "infringed" his free speech rights by punishing him for having engaged in the protected activity of picketing the union hall and criticizing union officers. In support of that claim, Black presented testimony and documentary evidence showing that the unions had an improper motive. The unions, for their part, presented evidence to support their contention that the reason was not Black's protected activity, but rather because he allegedly participated in unprotected activity as well, such as the violence about which their witnesses testified. The standard rule followed by the courts when evaluating a union member's claim that he has been subjected to discipline or other adverse action because of his free speech activities is to evaluate the evidence of the union's motivation de novo, based on the preponderance of evidence presented at trial. Petramale v. Laborers Local 17, 736 F.2d 13, 18 (2d Cir. 1984); Lamb v. Miller, 660 F.2d 792, 794 (D.C. Cir. 1981); Bise v. IBEW Local 1969, 618 F.2d 1299, 1304-1305 (9th Cir. 1979); Bradford v. Textile Workers Local 1093, 563 F.2d 1138 (4th Cir. 1977); Howard v. IBEW, 113 LRRM 3460, 3463 (S.D. Ohio 1983). The unions, however, argue that the Supreme Court's decision in Boilermakers v. Hardeman, 401 U.S. 233 (1971), limits review to the question of whether there was "some evidence" to support the union's discipline. The case stands for no such proposition. Hardeman had been charged with punching a union officer, and the question there was whether, in imposing discipline for this action, the union had violated the due process provision of the LMRDA, section 101(a)(5), 29 U.S.C. § 411(a)(5). The Court evaluated a number of claims based on this due process provision, and held that the notice was sufficiently specific under section 101(a)(5)(A). The Court further held that, although the due process standards of section 101(a)(5)(C) require some judicial review of the evidence presented to support the discipline, such review would be limited to deciding whether there was "some evidence." The inapplicability of Hardeman to this case is apparent even from this brief recital of its facts. No claim was raised there under the free speech provisions of the Act, section 101(a)(2), and the Supreme Court did not purport to pass on whether that section had been violated. And yet, if the unions' argument were accepted, the substantive protections of section 101(a)(2) would extend no further than the procedural standards of section 101(a)(5), including the "some evidence" rule of Hardeman. Because the unions' argument effectively reads section 101(a)(2) out of the Act, this contention should be rejected. As the Supreme Court has repeatedly made clear, Sheet Metal Workers v. Lynn, 109 S. Ct. 639, 644 (1989); see also Breininger v. Sheet Metal Workers, 110 S. Ct. 424, 440 n.18 (1989) (reserving free speech claim while holding that due process standards had not been violated), the free speech and due process protections are separate and independent. A union may not "infringe" free speech rights under section 101(a)(2), even if the union provides all the due process required by sections 101(a)(5) and 609 of the Act, when it disciplines the member for protected activity. Other courts have similarly been unimpressed with the argument that the "some evidence" standard applies to free speech claims under the LMRDA. For example, in Bise v. IBEW Local 1969, 618 F.2d 1299 (9th Cir. 1979), plaintiffs were charged with breaking union solidarity during a strike. The members asserted that they had been fined for expressing dissenting views, but the union asserted that the fines were imposed for crossing a picket line. As the court of appeals ruled, "It matters not that the grounds urged by the Union to support its disciplinary action may have a semblance of lawfulness if the true motivation for the action was unlawful." Id. at 1304. It then squarely held that Hardeman's some evidence standard did not apply because Hardeman did not involve freedom of speech. Id. at 1304-1305 n.5. Accord, Myers v. IATSE Local 44, 667 F.2d 817, 821 (9th Cir. 1982). Similarly, in Lamb v. Miller, 660 F.2d 792 (D.C. Cir. 1981), an elected officer was tried by the executive board and removed from his position, purportedly because he had refused to account for certain expenditures, but the officer charged that the expense allegations were a pretext to retaliate against him for criticizing the union president. The district court granted summary judgment for the union, relying on the "some evidence" rule and citing Hardeman, 105 LRRM 2519, 2523 (D.D.C. 1979), but the court of appeals reversed: "When there is some evidence that the reason for removal from office was permissible and some evidence that the reason was impermissible, the question whether protected activities were a cause for removal must be resolved by the trier of fact." 660 F.2d at 794. The unions' approach to the enforcement of Title I would afford even less protection against retaliatory discipline than Title III provides against unfair trusteeships, and the contrast between the two Titles is further evidence that the unions' proposal is contrary to Congress' intent. Thus, under Title III, when union members challenge the imposition of a trusteeship on their local union during the first eighteen months of the trusteeship, they are entitled to prevail only if, assuming a fair hearing, they can prove the illegitimacy of the international's purpose in imposing the trusteeship by "clear and convincing evidence." Section 304(c), 29 U.S.C. § 464(c). Evidently, when Congress wanted to impose an extraordinary evidentiary standard under the LMRDA, it well knew how to do so, and its failure to include a comparable standard under Title I demonstrates the impropriety of applying one without Congressional direction. And even under Title III, it is not enough for the international to have merely "some evidence" to support its position, and yet the unions' proposed approach to the enforcement of Title I would impose that far more draconian standard on members who have been disciplined for exercising their free speech rights. This Court has been reluctant to permit union members to bring Title I challenges when their real complaint is with a trusteeship, recognizing that the procedures and standards for invalidating a trusteeship are far less accommodating to the rank-and-file. Farrell v. Teamsters, 888 F.2d 459 (6th Cir. 1989). The Court should not now interpret Title I in a way that makes it even less hospitable to rank-and-file challenges than even Title III. The unions invoke assorted dicta from several courts, mostly taken completely out of context, to support their claims. For example, the union cites a passage in Teamsters Local 420 v. Traweek, 867 F.2d 500, 511 (9th Cir. 1989), in which the court said that a deferential standard would be applied to a union's interpretation of its own constitution. Union Br. at 20-21. However, not only did Traweek's claims not involve section 101(a)(2),(4) but this case turns on a factual question, not on the union defendants' interpretation of their own constitution. We assume that the union constitution does, as defendants assert, forbid picket line violence. The question remains whether Black was disciplined because of such violence, or because he spoke out against the leadership or associated with other persons who shared his criticisms, and Traweek requires no deference to the union's position in that regard. The unions' reliance on another Ninth Circuit case, Ferguson v. Iron Workers, 854 F.2d 1169 (1988), for the proposition that the same standard applies to section 101(a)(2) cases as to section 101(a)(5) cases, Br. 21-22, is similarly misplaced. It is true that, in Ferguson, the members claimed a due process violation as well as a free speech violation, but the "some evidence" standard did not figure in either prong of their claim. Rather, their due process claim was that the Board that tried them was biased; their free speech claim was that they were punished for criticizing the leadership. In rejecting the free speech claim, the court of appeals found that the members, who were the former leaders of a local union, had "established a rival union, became its leaders, and interfered directly with the union's ability to function" by demanding that the employer recognize the rival union. 854 F.2d at 1175. The court acknowledged that the plaintiffs had also been charged with criticizing a union official, but found that such criticism did not protect them from discipline because the essence of the charge against them was dual unionism, which was properly subject to discipline, id. at 1174, and the criticism of the union official could properly be punished on the ground that it was simply incidental to the overall scheme to supplant the old local union. Id. at 1175. Here, by contrast, the jury found that the motive for the discipline was Black's protected speech, and Ferguson does not aid the defense.(5) The final authority case on which the unions rely, Br. at 19-20, is a single sentence from this Court's decision in Mayle v. Laborers Local 1015, 866 F.2d 144 (6th Cir. 1988). In Mayle, after noting the existence of "abundant evidence" to support the union's contention that Mayle had damaged the union as an institution, the Court stated, "The evidence in this case is more than the 'some evidence' standard required by the LMRDA. [ ] Boilermakers v. Hardeman." 866 F.2d at 147 (citation omitted). In fact, however, Mayle does not support the unions' argument here. Mayle, like Ferguson, was a dual unionism case, in which the facts of the dual unionism were not in dispute, and the question was a legal one -- could an individual who had criticized the union leadership, in the course of organizing and leading a new, rival labor organization that challenged the old local for the right to represent the workers in bargaining with the employer, be disciplined for that course of conduct, including the speech in support of it. The district court held for the union, characterizing the evidence as follows: It is unclear whether plaintiff is claiming that his expulsion was in retaliation for the position he took in support of certain candidates during the election, thus violating his right of free speech or whether it was for his speech in connection with [the rival union]. If it is the former, his assertion is completely unsupported by the evidence. If it is the latter, . . . the activity at issue in this case was not the type protected by section 411(a)(2). Mayle v. Laborers Local 1017, 678 S. Supp. 690, 696 (N.D. Ohio 1987). This Court affirmed, stating that section 101(a)(2) allows the expulsion of a member who attempts to threaten the union as an institution. 866 F.2d at 146.(6) The unions seize on the fact that the sentences about the quantum of evidence appear immediately after a paragraph discussing Mayle's claim under section 101(a)(2), apparently assuming that this placement in the opinion shows that the Court intended to apply the Hardeman standard to free speech cases as well as due process cases. The flaw in this reasoning is that, immediately after the "some evidence" sentence, the Court stated, "Accordingly, we find that the [unions] complied with all of the requirements of section 101(a)(5) of the LMRDA and lawfully expelled Mayle." 866 F.2d at 146 (emphasis added). The relevance of the "some evidence" language to the free speech provisions of the LMRDA is thus ambiguous at best, and the Court should not read Mayle in a way that is contrary to the approach of the other circuits, by permitting discipline simply because there is "some evidence" that the member was punished for a lawful reason. The unions also invoke a policy argument in asking the Court to adopt its novel proposition of law. Thus, the unions ask the Court to deal leniently with the decisions of the Joint Council's executive board which it characterizes, without any record citation, as group of "union members who have experience in dealing with union matters." Br. at 26. The unions invoke decisions involving the duty of fair representation ("DFR") that accord respect to lay triers of fact in handling contract disputes, id., and warn that if a de novo standard of review applies, the courts will be flooded with appeals every time a union tries to impose discipline. Id. at 27. These arguments, however, not only do not bear up under examination, but indeed show the grave dangers posed by adoption of the some evidence standard in free speech cases. The arguments do not withstand examination because they would lead to the unprecedented result of deferring to union fact-finding on the violation of federal rights by the union. Even in the employer context, arbitral panels -- assuming that Teamster joint committees merit such a kind appellation -- are given deference only when they are applying the contract that was created by the employer and the union; if they attempt to apply federal law, the facts are considered de novo in a subsequent lawsuit. See Barrentine v. Arkansas-Best Freight System, 450 U.S. 728 (1981). Similarly, we would assume, that to the extent that a union body is construing the union constitution, it would receive deference in the interpretation and application of that document, see English v. Cunningham, 282 F.2d 848 (D.D.Cir. 1960).(7) But when the union body is considering a matter to which an independent federal law claim may apply, no deference whatsoever is accorded. Moreover, the de novo standard applies to the evaluation of evidence of retaliation only when the plaintiff claims, and can make a credible showing, that the purpose of the discipline was to punish the member for exercising free speech rights under the LMRDA. If such a showing cannot be made, there is no basis for reviewing the evidence supporting discipline save under Hardeman's some evidence standard. Nor is there any basis for extending to the LMRDA the deferential standard of review that is accorded arbitral decisions in cases involving the DFR. Indeed, according such deference to bodies such as the Joint Council could easily undermine the protections of the LMRDA. Such councils are by no means bodies of ordinary members, as the unions' brief appears to imply. The delegates to the Joint Council consist of the elected officers of the constituent locals; the most potent full-time Presidents and Secretary-Treasurers of the locals are elected to the Executive Board of the Joint Council. These officials are part of the political hierarchy of the union, and many of them hold salaries positions at higher levels of the union. A rule of law holding that the free speech rights of the membership depend on the good graces of these officials, because the courts will allow them to punish any member about whom "some evidence" of wrongdoing can be presented in fora that, as the unions concede, are scarcely comparable to courts of law, Union Br. at 26, would tell members that they can no longer look to the LMRDA to protect their free speech rights.(8) Because that rule scarcely comports with Congress' objective in adopting the Union Member's Bill of Rights, the union's appeal on this ground should be rejected. 2. Local 519 Was Required to Rebut the Prima Facie Case. Local 519 alone raises a second objection to the liability aspects of the verdict.(9) According to the Local, the district court committed error by instructing the jury that once plaintiff proved that his exercise of free speech rights played a substantial role in the actions taken against him, the defendant bore the burden of proving that what it did "was a result of the adoption and enforcement of reasonable rules regarding responsibilities of every member toward the union." Union Br. at 37. The Local's objection is that this instruction, although perfectly proper in a First Amendment case, cannot be applied to cases involving the free speech provisions of the LMRDA. However, the trial judge was correct in looking to the First Amendment for analogous principles to frame his jury instructions. In Mt. Healthy City Bd. of Educ. v. Doyle, 429 U.S. 274 (1976), the Court held that a plaintiff has the burden of showing that protected conduct was a "substantial factor" in the decision to sanction him, after which the defendant must carry the burden of proving that it would have reached the same decision even in the absence of protected conduct. The Supreme Court has applied this burden-shifting approach to other cases involving retaliation for the exercise of rights under federal statutes, NLRB v. Transportation Mgmt. Corp., 462 U.S. 393 (1983), and the courts of appeals have routinely done so as well. E.g., Boich v. MSHRC, 719 F.2d 194, 195 (6th Cir. 1984) (Mine Safety Act); Consolidated Edison Co. v. Donovan, 673 F.2d 61, 61 (2d Cir. 1982) (Energy Reorganization Act); Mackowiak v. University Nuclear Systems, 735 F.2d 1159, 1163-1164 (9th Cir. 1984) (same). The union presents no reason for applying any different test under the LMRDA. Indeed, to the extent that the Mount Healthy standard has been discussed under the LMRDA, the circuits apply a standard that is at least as favorable to plaintiffs. Thus, in Bradford v. Textile Workers Local 1093, 563 F.2d 1138, 1143 (4th Cir. 1977), the court indicated that it was sufficient for a member to prove that free speech was "a" reason for the discipline, and that plaintiff need not prove that even that it was the "primary" reason. The court acknowledged the union's argument based on Mt. Healthy, but indicated that that test was satisfied on the facts of the case. In Petramale v. Laborers Local 17, 736 F.2d 13, 18 (2d Cir. 1984), the court went even further, stating that it is enough that free speech be one of the reasons for discipline, even if the union can prove that it would have imposed discipline in the absence of the free speech. And in Keubler v. Cleveland Litho. Local 24-P, 473 F.2d 359, 363 (6th Cir. 1973), this Court also used a burden-shifting approach in a case involving union discipline for free speech, stating that the member "made out a prima facie case of unlawful acts by the Union and that the Union failed in its burden to go forward with proof to justify its disciplinary actions against its member" as being within the provisos to section 101(a)(2). See also Stachan v. Weber, 535 F.2d 1202, 1203 (9th Cir. 1976) ("There was no showing that the union as a labor institution would be seriously harmed . . . . Thus, the union's restriction on their rights of expression is void").(10) The union's arguments against application of the Mt. Healthy standard are based on misreading of precedent. The union argues, Br. at 38, that Steelworkers v. Sadlowski, 457 U.S. 102 (1982), holds that unlike First Amendment rights, free speech rights under the LMRDA are not absolute, because the statute permits "reasonable" restrictions on speech. We do not disagree with this proposition, but it is beside the point. The question here is not whether particular restrictions were permissible, but rather what standards should be applied to determine, as a matter of fact, whether the discipline was for permissible or impermissible reasons. The jury instruction here did not apply the First Amendment "compelling government interest" test; it emphasized that unions are allowed to adopt and enforce "reasonable" rules. Here, there was no dispute that picket-line violence could properly be punished, but Black and his witnesses denied that such violence had occurred, and it was up to the jury to decide who was telling the truth and whether the real reason for the discipline was violence or free speech. Sadlowski does not bar reference to the First Amendment for analogies in the allocation of burdens of proof. To the contrary, the Court ruled that "First Amendment principles may be helpful, although they are not controlling," 457 U.S. at 111, and it looked to First Amendment precedents for guidance, although it found them distinguishable. Id. at 113 n.6. Similarly, in Reed v. UTU, 109 S. Ct. 621, 626 (1989), the Court looked to First Amendment principles for analogies in order to decide which statute of limitations to borrow for section 101(a)(2) cases. Similarly, the court below was correct in looking to First Amendment cases for guidance in how to instruct the jury to approach the factual question of whether the union would have disciplined Black in the absence of his protected activity. Accordingly, the jury's verdict should be affirmed insofar as it was based on jury instructions on the burdens of proof that were based on the instructions commonly used in cases under the First Amendment.(11) B. The Union Was Properly Held Liable for Infringing Black's Free Speech Rights by Depriving Him of His Livelihood. The final question concerning liability is the claim of Local 519 that its retaliation against Black through the operation of the union's hiring hall either is immune from challenge under the LMRDA, or should be reversed on the facts of this case. As we now show, neither argument is correct. First, on the legal question, the circuits have uniformly held that employment-related reprisals for free speech activity are forbidden by, and actionable under, Title I. Murphy v. Operating Engineers Local 18, 774 F.2d 114, 121-123 (6th Cir. 1985); Vandeventer v. Operating Engineers Local 513, 579 F.2d 1373, 1378-1379 (8th Cir. 1978); Duncan v. Peninsula Shipbuilders Ass'n, 394 F.2d 237, 239 (4th Cir. 1968); Moore v. IBEW Local 569, 653 F. Supp. 767, 769-772 (N.D. Cal. 1987). See also Franza v. Teamsters Local 671, 869 F.2d 41 (2d Cir. 1989) (no violation there because employment was not in a job in union's bargaining unit). Even the AFL-CIO has recognized that one of the principal reasons that Title [I] was enacted was to protect dissident members from economic reprisals by unions . . .. [A]n allegation that a union has sought to blacklist or procure the discharge of a dissident member clearly states a claim for relief under Title I. Reed v. UTU, No. 87-1031 (S. Ct.), Brief of AFL-CIO as Amicus Curiae, at 18.(12) A brief review of the legislative history discloses why the AFL-CIO was compelled to concede this point. The discussions of the purposes of the Bill of Rights on the floor of the Senate show beyond peradventure that Congress intended to forbid the very sort of employment-related reprisals that the jury found to have occurred in this case. Thus, as Senator McClellan stated when he introduced the Union Members Bill of Rights as a floor amendment to the LMRDA, a "union man is not protected by effective law which he can use against beatings and tortures and job-loss as reprisals for assembling [and] for speaking up in meetings . . .." II NLRB, Legislative History of the LMRDA 1098 (1959) ("Legis. Hist."). Senator McClellan further said that Congress needed to prescribe and define by law what the rights of union members are, place in them by the democratic process the power to secure those rights, and protect them in their efforts to do so from reprisals of any kind . . .. Without such protection, other provisions of law may be of little benefit and meaningless. Without such protection in the exercise of his legitimate rights, the records of our committee's investigations show over and over against that a rank-and-file member dare not risk any opposition to a corrupt or autocratic leadership. If he does so, he may be beaten, his family threatened, his property destroyed or damaged, and he may be forced out of his job -- all of these things can happen and have happened. II Legis. Hist. 1098 (emphasis added). Having introduced his Bill of Rights amendment, Senator McClellan proceeded to explain what he intended to accomplish by each part of the amendment. Section 101(a)(2), he said, was partly addressed to the problem that his Select Committee had encountered of union members who were feared the consequences of speaking out: They are afraid of reprisals against them. Two waitresses from Chicago testified that it required 6 months to get a job. Union officials go around and interfere. They say to a prospective employer, "If you hire this person, you will have labor trouble." They cannot come here and tell the truth without risking reprisals. This provision is for the benefit of the working people, the people from whom some of these parasites draw the lifeblood which courses through their veins. II Legis. Hist. 1103. Nor did the opponents of Title I dispute that it would apply to employment-related reprisals. Noting the portion of the original Bill of Rights that would have given the Secretary of Labor the power to sue for violations of Title I, Senator Kennedy objected to section 101(a)(1), which gave members "equal rights and privileges within such organization," on the ground that it involved putting the Secretary of Labor into the adjustment of matters such as equal rights and privileges within a labor organization. I should think that would involve the Secretary of Labor in criminal offense procedures, seniority disputes, and every other matter as to which any member of a union may feel he was discriminated against by union officers or by his employer while he was a member of his union. II Legis. Hist. 1113 (emphasis added). Notwithstanding these objections, the Senate adopted the Bill of Rights, which, with modifications not relevant here, was enacted into law.(13) Albeit without acknowledging this clear legislative history and appellate precedent, Local 519 argues that the Supreme Court pointed in a different direction in Breininger v. Sheet Metal Workers, 110 S. Ct. 424 (1989). In fact, however, Breininger held only that an allegation of politically-motivated manipulations of hiring hall referrals did not constitute "discipline" that requires due process. The Court specifically reserved the question whether such retaliation would constitute an "infringement" of free speech rights under section 101(a)(2), a reservation that was necessary because the union member's lawyer in that case had failed to allege an infringement either in the Supreme Court or, indeed, in the lower courts. Moreover, the only court of appeals which has, since Breininger, considered whether hiring-hall retaliation may "infringe" free speech rights, has held that Breininger leaves undisturbed earlier rulings allowing a cause of action under section 101(a)(2). Guidry v. Operating Engineers Local 406, 907 F.2d 1491 (5th Cir. 1990). So, too, this Court should hold that Breininger does not disturb the precedent established by this Court in Murphy v. Operating Engineers Local 18, 774 F.2d 114, 121-123 (6th Cir. 1985), allowing a cause of action for hiring-hall related infringements of free speech rights. Turning now to the factual component of Local 519's appeal on this issue, the first flaw in the union's argument is its failure to acknowledge the very high standard that it must meet in order to overturn the jury's factual finding. Thus, this Court has repeatedly expressed its "hesitation toward tampering with jury findings." Pratt v. National Distillers & Chem. Corp., 853 F.2d 1329, 1337 (6th Cir. 1988). As Judge McCree described the standard, a jury's verdict may not be overturned "unless reasonable minds could not differ as to the conclusions to be drawn from the evidence." Gillham v. Admiral Corp., 523 F.2d 102, 109 (6th Cir. 1975). Moreover, the Court should "view the conflicting evidence from the point of view favorable to the plaintiff, [and draw] such fair inferences from such favorable view of the evidence as the jury might reasonably have drawn." Welders Supply v. American Employers' Ins. Co., 358 F.2d 593, 597 (6th Cir. 1966). The jury's verdict is fully supported by the evidence presented to it. Plaintiff and Johnny Black testified that, although their names were far apart on the priority list for hiring hall referrals, they were called for work within ten minutes of each other. They also testified that, despite plaintiff Black's obvious inability to do heavy lifting, Local 519's president misrepresented the nature of the job with the result that plaintiff Black was injured by the heavy lifting that was required. This testimony was plainly sufficient to support the jury's finding that plaintiff had been subjected to discrimination at the union hiring hall that was directed toward punishing him for his outspokenness on union affairs. In attacking the jury's verdict, the union places its entire reliance on a single piece of documentary evidence -- an out-of-work book that was composed by the local union president after the complaint in this case had been filed. Whether or not the evidence would have been sufficient to support a verdict for the union, had the jury viewed the evidence that way, under the narrow standard of review in this circuit, the jury was entitled to discredit the union's post hoc manufactured evidence, and to credit instead the testimony of the plaintiff and his witnesses. II. THE EVIDENCE SUPPORTS THE JURY'S AWARD OF DAMAGES. The final issue on the unions' appeal is their contention that there was insufficient evidence to support the jury's modest award of $40,000 against Local 519 and $25,000 against Joint Council 87. These damages were based, not only on the discipline imposed on Black, the kangaroo court to which he was subjected before the Joint Council, and the discriminatory referral at the hiring hall, but also on the physical injury that Black suffered as a result of that referral and the severe emotional distress that this loyal union man suffered from his intra-union discipline.(14) The proof at trial showed that before the unions retaliated against Black, he led an active, productive work and social life. Mr. Black enjoyed an excellent relationship with his wife and son, enjoyed fishing, hunting, and all types of activities around the home. (D. Black 6/28 TR 100-108; B. Black 6/28 TR 114-118) Mr. Black had an inquisitive mind; he had patented two inventions and was constantly involved in tinkering with other ideas. (Pl. Exh. 25, 26; D. Black TR 6/28 TR 100-108; B. Black 6/28 TR 114-118) Although he was not in the best of physical health, the proof showed that, before the unions' retaliation against him, Black was a leader in the union dissident movement, was active in union affairs, had a leadership role within the union and functioned at a high level within his family, social and work activities. (Howard 6/26 TR 95, 100-102; J. Black 6/27 TR 26-27; Chambers 6/27 TR 101-102; Isbell 6/27 TR 111; D. Black 6/28 TR 23, 30, 48-49; Pl. Exh. 9, 10, 13, 16, 25, 26). Subsequent to the unions' actions, however, Black suffered from continued and chronic depression, became uncommunicative with his family and friends, and became obsessed over the injustice of his treatment. Black ceased working with his inventions, suffered severe, acute and chronic headaches of a type different from any he had ever experienced before, became subject to impulsive, irrational and destructive behavior such that he was actually hospitalized for an extended regimen of psychiatric and psychological therapy, and became a different person. (D. Black 6/28 TR 53-63; D. Black 6/28 TR 100-108; B. Black 6/28 TR 114-118) Although the unions assert that there was no significant difference between Black's pre- and post-retaliation medication, Black's evidence was that he took medications after the suspension and fine that were different in type and amount than any he had taken before, and had been placed on anti-psychotic medications which he was still taking at the time of trial. (D. Black 6/28 TR 3-8, 53-63, 100-114; B. Black 6/28 TR 114-118) Black's medical records revealed that his emotional and physical problems were directly related to the unions' actions. (Plaintiff's Exhibit 2, medical records 6/27 TR 164-176) Not only did Black present documentary and lay testimony concerning the relationship between the unions' actions and his mental and physical problems, but he also presented the testimony of Dr. Gregory Kyser, his treating psychiatrist. (Plaintiff's Exhibit 29, pp. 1-24) Dr. Kyser testified concerning his treatment of Black over a long period of time, then expressed the following opinions: Q. Let me ask a question that the jury is going to ask and we'll get into later from a legal standpoint. How does all this fit in with his history that you were given, all these signs and symptoms and complaints? A. I think it shows that he has gotten worse is the most glaring thing one can glean from that. He does look worse than when I saw him in the hospital. He's declined. His social life - he basically has none now. His marital life - I don't recall - It's been - they've basically led a celibate marriage for quite some time due to his obsession with all these legal difficulties ... A. And his depression and his loss of libido or sexual drive. Q. Doctor, based upon the interviews that you've had with Mr. Black over a period of well, in 1988 and 1990, the examinations that you've done, the treatment of Mr. Black, did you have an opinion within a reasonable degree of medical certainty as to whether Mr. Black's complaints of anhedonia, decreased sleep, headaches, decreased ambition, decreased libido, decreased energy, decrease in memory, decrease in concentration and suicidal ideation, in 1988 now were proximately caused by the fine and suspension of Mr. Black from the union in December of 1984? A. Yes, I think there's a substantial probability that that's the case. ... Q. Very well. Let me ask you: Are you saying that these two things are related? A. I would say that they are. It's clear he presented it that way and his continuing difficulties in this area in his clinical course seem to clearly indicate that his persistent legal difficulties relating to his job and his dealings with the union, his feelings of his being fired, his feelings of being betrayed by those he trusted in the union all have impacted on his current problems. ... Q. Doctor, based upon your interviews, your examination and treatment of Mr. Black, do you have an opinion within a reasonable degree of medical certainty as to whether Mr. Black's condition in 1990 and the complaints of obsession - by the way, is that his word or your word? A. My word. Q. His complaints of anhedonia, decreased energy, decreased initiative, dysphoria, hypergraphia, rumination in May of 1990 were proximately caused by the fine and suspension of Mr. Black by the union in December of 1984? A. Yes, I do. I think his condition has deteriorated and made much worse by the persistent difficulties that he's had. Q. Are those difficulties, those diagnoses of his condition, are they related to his fine and suspension from the union in 1984? A. I would say so, yes. ... A. I would say that it is clear in talking with him and looking at his medical records and in looking at the clinical course, course of his condition that his persistent difficulties with the union, his betrayal, have all greatly impacted his clinical condition. Q. I want to focus if we can, since the trial is limited to the fine and suspension from the union, I want to ask you if you have an opinion within a reasonable degree of medical certainty as to whether these complaints and these diagnoses that you have made in May of 1990 are proximately caused by the fine and suspension from the union - A. Yes, sir. Q. - back in December of 1984? A. Yes, I believe so. (Plaintiff's Exhibit 29, Dr. Kyser, pp. 21-24) The unions' principal basis for appeal appears to be a lengthy recounting of the testimony of their own expert witness, Dr. Begstrup. However, the testimony of plaintiff's medical expert witness, Dr. Kyser, strongly supported plaintiff's case. Moreover, Dr. Kyser was not, like defense expert Begstrup, simply a hired medical gun who had been retained for his testimony in this case; to the contrary, he was the psychiatrist who had treated Black for many years, who had observed the changes in plaintiff's condition over time, and who obviously had the better sense of Black's mental condition. In sum, a jury confronted with these two opposed medical opinions could properly have chosen to credit Dr. Kyser and the fact witnesses who testified about Black's behavior over Dr. Begstrup, and the portion of the damages verdict that is based on emotional distress is amply sustained by the evidence. It is also important to recall that the district judge in this case also carefully scrutinized the damages award in light of his own observations at the trial. The damages verdict here followed an earlier trial at which a much larger verdict was rendered, but the trial judge set it aside and required that a new trial be conducted. The determination of the experienced trial judge below, that the modest compensatory damages award of $50,000 was consistent with the evidence presented to the jury, should not be disturbed on appeal. III. A MODEST AWARD OF DAMAGES SHOULD NOT DISQUALIFY A SUCCESSFUL TITLE I PLAINTIFF FROM BEING AWARDED ATTORNEY FEES ON THE COMMON BENEFIT THEORY. Following his success on the merits, Black applied for an award of attorney fees based on the common benefit theory. The trial judge rejected that motion because he read one of this Court's cases, Shimman v. Operating Engineers Local 18, 744 F.2d 1226 (6th Cir. 1984), as forbidding a finding of common benefit whenever the litigation results in an award of damages to the plaintiff. Docket No. 270, Sept. 7 Opin., at 3. The fact that the suit may also help restore union democracy is only an "incidental benefit," the court thought, because "'it does not operate to impose the burden of litigation in proportion to the benefits received.'" Id. at 3-4, quoting Shimman at 1235.(15) However, the court below overstated the impact of Shimman, creating a inflexible rule out of a case that only denied fees based on the peculiar facts of that case. In order to show why the court below erred, we begin by describing the general rules involving attorney fees, as expounded by the Supreme Court in Hall v. Cole, 412 U.S. 1 (1973). We then discuss Shimman and a subsequent decision of this Court, Murphy v. Operating Engineers Local 18, 774 F.2d 114, 127 (1986), which limits Shimman's impact. Finally, we explain why a rule barring attorney fees in cases such as this would be defeat the Congressional objectives based upon which the Supreme Court held that section 102 of the LMRDA authorizes attorney fees awards based on the common benefit theory. In Hall v. Cole, 412 U.S. 1 (1973), the Supreme Court held that a union member who successfully brings an action vindicating the free speech rights guaranteed by section 101(a)(2) is entitled to attorney fees. Cole had been expelled from his union for introducing resolutions that accused the union's officers of undemocratic policies and shortsighted policies. Cole obtained a temporary restraining order restoring him to membership, and ultimately a final judgment finding that the union's conduct had violated his right of free speech under section 101(a)(2). Id. at 1. Although the only relief ordered by the district court was the restoration of Cole's own membership, the Supreme Court held that his lawsuit had conferred a "common benefit" on the membership, because When a union member is disciplined for exercising any of the rights protected by Title I, the rights of all members of the union are threatened. And by vindicating his own right, the successful litigant dispels the "chill" cast upon the rights of others. Indeed, to the extent that such lawsuits contribute to the preservation of union democracy, they frequently prove beneficial "not only in the immediate impact of the results achie more resources
Because Public Citizen does not accept funds from corporations, professional associations or government agencies, we can remain independent and follow the truth wherever it may lead. But that means we depend on the generosity of concerned citizens like you for the resources to fight on behalf of the public interest. If you would like to help us in our fight, click here. |
|
Join | Contact PC | Contribute | Site Map | Careers/Internships| Privacy Statement | |||