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ROBERT GUIDRY,
Plaintiff-Appellee/
Cross-Appellant,

Perhaps the Court meant its remand instructions to be limited to the district court's disposition of the "discipline" issue, while leaving the district court free to impose full damages based on the "infringement" theory against both the union and the individual officers, and against the union based on the duty of fair representation ("DFR"). If so, Guidry asks the panel to say so expressly, and rule that union members like himself are free to sue for "infringement" of their free speech rights and for DFR violations, whether or not they can prove that they were "disciplined." If, however, the panel intended to adopt a novel interpretation of the LMRDA, under which the scope of section 102 and the DFR is no broader than the scope of section 101(a)(5), and under which individual defendants in a free speech case are absolved of liability unless the union entity is responsible for the infringement, then Guidry seeks both rehearing and rehearing en banc on that question.

1. May a union member obtain damages for retaliatory denial of hiring hall referrals that violate the DFR and "infringe" his free speech rights in violation of sections 101(a)(2) and 102 of the LMRDA and that violate the duty of fair representation, even if he cannot establish that he was subjected to "discipline" by the union as an entity, in violation of sections 101(a)(5) and 609 of the LMRDA?

2. Are union officers immune from liability for damages under the LMRDA unless the union members can prove that the union itself should bear responsibility for their wrongful acts, and thus be liable for damages?

Plaintiff Robert Guidry and eleven other members of defendant International Union of Operating Engineers Local 406 ("Local 406") sued Local 406 and four of its officers -- defendants Peter Babin III, Willard Carlock, Sr., Columbus Laird, and Don Schiro -- alleging violations of the duty of fair representation and the Union Members' Bill of Rights, which is Title I of the Labor-Management Reporting and Disclosure Act of 1959, 29 U.S.C. §§ 411 et seq. ("LMRDA"). Some of the plaintiffs had opposed the incumbent officers in intra-union elections and in other political disputes within the union; some of them had simply refused to contribute to the intra-union political campaigns of the incumbents, and some of them had cooperated with criminal investigations into the officers' conduct. In retaliation for this conduct, plaintiffs and their families were subjected to numerous threats of physical harm, including threats against their lives, and were blacklisted at the union hiring hall.⁽¹⁾

After a bench trial lasting several weeks, the district court entered detailed findings upholding plaintiffs' claims of physical and economic retaliation. 669 F. Supp. 763, 765-775 (W.D. La. 1987). The court concluded that this retaliation violated the duty of fair representation ("DFR"), id. at 775-776, plaintiffs' right of free speech under section 101(a)(2) of the LMRDA, id. at 776, and plaintiffs' right not to be disciplined without due process under section 101(a)(5) of the LMRDA or for an improper purpose under 609 of the LMRDA. Id.

Because the district judge thought that the limitations period for both DFR and LMRDA violations was six months, he based his damages awards on that time period. Id. He awarded all of the plaintiffs together almost $25,000 in back wages, including $5,310.50 for Guidry, id. at 777-778; $58,000 in damages for mental and emotional distress caused by both the loss of livelihood and the threats of physical harm, including $20,000 for Guidry; id. 778-779; and punitive damages of $132,000, including $11,000 for Guidry. Id. at 779-780. Finally, the district court ordered Local 406 to pay plaintiffs' reasonable attorney fees, based on theories of bad faith and common benefit. Id. at 780-781.

Defendants appealed only the judgment in favor of Guidry, and only Guidry cross-appealed. 882 F.2d 929, 932 n.1. This Court affirmed the district court's holdings with respect to liability, and specifically upheld the district court with respect to each of Guidry's theories: the duty of fair representation, id. at 937 n.5, free speech under section 101(a)(2), id. at 939 n.6, 940, 941-942, and discipline without due process under section 101(a)(5) and for an improper purpose under section 609. Id. at 937-940. The court also held that, in light of the intervening decision in Reed v. UTU, 109 S. Ct. 424 (1989), and in light of the fact that this case, like Reed, involved a claim under section 101(a)(2) of the LMRDA, the statute of limitations was properly one year, not six months. 882 F. 2d at 941-942. Accordingly, the Court directed the district court to recompute both punitive and actual damages in light of the new limitations period and other considerations discussed in its opinion. Id. at 942-944. However, the Court reversed the award of attorney fees on the grounds that fees may be awarded for bad faith only when the bad faith is exhibited during the litigation, not where the bad faith is part of the underlying action, and that attorney fees were unavailable in LMRDA cases in which there is an award of damages. Id. at 944.

Defendants then sought certiorari, citing the intervening decision in Breininger v. Sheet Metal Workers Local 6, 110 S.Ct. 424 (1989), and the Supreme Court vacated this Court's decision and remanded for reconsideration in light of Breininger. Without allowing the parties to file briefs concerning the effect of Breininger on all of the holdings below that had been affirmed in this Court, this Court summarily remanded with instructions that appear to assume that Guidry's only theory for recovery was the section 609 theory based on "discipline" for an improper purpose and that the only defendant was the union itself. Thus, the Court held, in a decision that will apparently be published, that the district was required to decide "whether, and to what extent, the Union as a collective entity was responsible for hiring hall discrimination against Guidry. . . . Damages should be assessed only for those injuries caused Guidry by action authorized by the Union as an entity." Order, at 2.

1. There Is No Need for a Remand Because the District Court's Liability Findings Should Be Affirmed on the Grounds That Guidry's Free Speech Rights Were Infringed Under Color of Union Authority and That the Duty of Fair Representation Was Violated.

The Court's decision, if left undisturbed, threatens to tear a gaping hole in the protections afforded by the DFR and the LMRDA to union members who are denied employment opportunities or otherwise injured in retaliation for having exercised their free speech rights under the LMRDA. As we read the remand order, it precludes plaintiff from recovering on any of his claims unless he can show that they were based on a form of discipline imposed by the union as a entity. But there are numerous cases in which union members may be threatened with physical harm to themselves and their families, or denied a livelihood by union officials, as the district court found was done to Guidry, 669 F. Supp. at 772, but in which the retaliation may not have amounted to "discipline" under sections 101(a)(5) and 609 of the Act. Yet, under this Court's decision, Guidry will be unable to recover for this retaliation unless the district court concludes that it was "discipline."

In Breininger, the Supreme Court did not rule that claims of retaliation must always amount to "discipline" in order to be actionable. Rather, it decided that, in light of legislative history concerning the statutory term, "discipline," sections 101(a)(5) and 609 were only intended to be applied to punishments imposed by the union itself. The Court was further influenced by the fact that, if discipline were given a different meaning and applied generally to the denial of hiring opportunities, it would be necessary to hold a hearing with notice and an opportunity to prepare a defense every time a referral had to be made, because the same term, "discipline," is used in section 101(a)(5) of the Act. Id. at 439. But the Court was careful to note that it was not denying a member the right to recover for a broader group of retaliatory acts on the theory that his rights under the LMRDA had been "infringed" in violation of section 102, because that issue had not been presented to the lower courts, nor included in the question on which certiorari had been granted. Id. at 440 n.18.

In this case, not only did plaintiffs claim a right to recovery under section 102 in the district court, Complaint, ¶ 19; Guidry's Appellate Brief, page 20, but the district court relied on section 102 in awarding damages, 669 F. Supp. at 776, and this Court, although primarily relying on section 609 and the DFR in affirming the findings of liability, expressly stated that "this suit could also be maintained under section 102." 882 F.2d at 939 n.6. Although the Court opined in that footnote that the existence of section 102 did not affect the result in this case, it now must consider the effect of section 102 in light of Breininger. Therefore, the Court erred by remanding to the district court and requiring that damages be imposed only if findings required under Breininger to establish the presence of discipline could be made.

In their principal brief, defendants argued that the LMRDA protects only "membership," but not "employment rights." Br. at 19, 22. It is difficult, in the confines of a petition for rehearing, to fully explain why the statutory term "infringes" in section 102 should be given a broader reach than the statutory term "discipline," and why the attempt to differentiate between "employment" and "membership" rights must fail. Accordingly, we summarize the arguments that would be advanced in a brief on the merits.⁽²⁾

A simple hypothetical points up the inadequacy of a facile distinction between "membership" and "employment" rights. We trust that it is apparent that a union member who is physically beaten by union agents at the behest of the union president, for having criticized the president at a union meeting, may claim the protection of the LMRDA. Title I protects a member against such reprisals even though a punch in the nose does not alter the member's status as a member of the union. This is true even though union membership rights do not include a guarantee that a worker will not suffer a broken nose. The reason why there is a violation of Title I in these circumstances is that the member's nose was broken by agents of the union leadership because he exercised the membership right of expressing his views about the union leadership.

The same reasoning applies to a member who is deprived of hiring hall referrals because he exercised his free speech rights, even though union membership rights do not include a guarantee of actual employment or indeed of the availability of referrals. 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 were 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.⁽³⁾

Accordingly, most courts have 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.⁽⁴⁾

Sheet Metal Workers v. Lynn, 109 S. Ct. 639 (1989), compels the conclusion that the reprisals found to have occurred in this case are actionable under the LMRDA. In that case, the union argued that a union member, who had been deprived of his employment (there, as a union officer) because of his free speech activity, had not been deprived of any rights enjoyed under Title I because he was still permitted to come to union meetings and he remained a member of the union. The Supreme Court squarely rejected the union's argument because retaliatory reprisals force members to choose between their free speech rights and their jobs. Id. at 644-645. Moreover, the Court reasoned, the case was unlike Finnegan v. Leu, 456 U.S. 431 (1982), where the Court permitted a newly elected union president to remove his defeated predecessor's confidential and policy-making assistants because the Court concluded that the democratic benefits of ensuring the ability of the elected officers to vindicate the choice of the union electorate outweighed the cost in chilling the free speech rights of those who supported the loser. Lynn, 109 S. Ct. at 644.

This case is a fortiori from Lynn. As in Lynn, if a union official can deprive a member who opposes his election of employment opportunities through the union hiring hall, that would force the member to choose between his rights and his job. And, as in Lynn, there is no special reason of the kind found in Finnegan that would justify allowing such reprisals in order to assure that democratically elected union officers can carry out their mandate. Nor are there policy considerations of the kind found in Breininger, where a rule treating denial of hiring hall referrals as "discipline" would have resulted in requiring a due process hearing before any referrals could be made. 110 S. Ct. at 439. Thus, there is no need to remand for further findings on the issue of liability because the finding below, that Guidry was denied hiring hall referrals by union officers who controlled the hiring hall, and was threatened with physical retaliation by the officers' confederates, supports the conclusion that sections 101(a)(2) and 102 of the LMRDA were violated, and judgment was properly entered for Guidry.

2. Union Officers Who Infringe Members' Free Speech Rights May Be Held Liable in Damages Whether or Not the Union as a Collective Entity Bears Responsibility for Their Actions.

The Court's instructions to the district court, apparently permitting an award in favor of Guidry only if the union as a collective entity bears responsibility for the wrongs that he suffered, would deny recovery against the real wrongdoers in this case -- the union business agents who denied the hiring hall referrals and sponsored the death threats. If this is in fact what the Court meant to hold, it contradicts the previous law of the circuit, and conflicts with the positions taken by every other court of appeals that has decided the question.

Thus, in Keene v. Operating Engineers Local 624, 569 F.2d 1375 (5th Cir. 1978), this Court held,

Section 412 [102] extends the jurisdiction of the Court to suits against individual union officials who, acting under color of their union authority, violate the Section 412 rights of union members. . . . [W]here the evidence shows that the defendants were agents of the union acting abusively within the scope of their union duties, damages could be assessed against them individually.

This rule is followed in every court of which we are aware that has faced the question. E.g., Shimman v. Frank, 625 F.2d 80, 90-94 (6th Cir. 1980); Rosario v. ILGWU Local 10, 605 F.2d 1228, 1246 (2d Cir. 1979); Morrisey v. NMU, 544 F.2d 19, 24 (2d Cir. 1976); Eisman v. Clothing Workers Balt. Jt. Bd., 496 F.2d 1313 (4th Cir. 1974), aff'g 352 F. Supp. 429, 437 (D. Md. 1972); see also Aguirre v. Teamsters Local 165, 633 F.2d 168, 172 (9th Cir. 1980) (dictum apparently approves unanimous view of other circuits); Quinn v. DiGiulian, 739 F.2d 637, 641 (D.C. Cir. 1984) (court upholds damages against individual officer without discussing issue separately); Urichuck v. Clark, 689 F.2d 40, 43 (3d Cir. 1982) (union and officers may be held jointly and severally liable). Cf. Reed v. UTU, 109 S. Ct. 621 (1989) (section 101(a)(2) is procedurally similar to 42 U.S.C. § 1983, which permits damage against responsible officials).⁽⁵⁾

This virtually unanimous line of cases states the correct rule. There is no reason why individual union officers should be held liable for violating the LMRDA only in those circumstances in which the wrongful conduct is that of the union as a collective entity. In our view, that is precisely the circumstance in which it is more appropriate to impose liability on the union itself, rather than on the officers.

A rule under which damages may be awarded against union officials individually allows the trier of fact to allocate the costs of an LMRDA violation in a fair and equitable manner. Thus, under a rule allowing individual liability, the union membership (which, of course, pays damages awards through their dues) may avoid monetary responsibility if the officials were truly on a frolic and detour, or if the award could cripple the union's ability to represent them effectively. And yet, the rule would ensure that the injured member can be made whole and that the deterrent effect of punitive damages remains available to all members whose rights are violated. Because the Court's ruling appears to place all liability for wrongdoing in this case on the union, and hence on its members, rehearing should be granted.

The petition for rehearing should be granted.

Respectfully submitted,
 
 

Paul Alan Levy

Alan B. Morrison

Public Citizen Litigation Group

Attorneys for Robert Guidry

June 5, 1990
 

1. Guidry was also expelled from the union. The Court upheld the district court's finding that the expulsion itself violated section 101(a)(5) of the LMRDA. That ruling is no longer at issue.

2. The page limits also prevent us from including a thorough analysis showing that Breininger permits an employee to sue for breach of the DFR even if he cannot establish that he was "disciplined" under the LMRDA. In Breininger itself, dismissal of the discipline claim was affirmed while the DFR claim was remanded.

3. As enacted, the Bill of Rights is enforceable only by suits of individual members, not by the Secretary of Labor, as the McClellan amendment had provided. Senator Kennedy's remarks nevertheless support our argument that the Bill of Rights protects members against employment-related reprisals, because they show the Senate's understanding of the meaning of section 101(a)(1), although the enforcement mechanism was changed.

4. A copy of the brief has been lodged with the Clerk.

5. The one exception is an early district court decision that was reversed by this Court on other grounds. Nix v. Machinists Fulton Lodge, 262 F. Supp. 1000, 1008 (N.D. Ga. 1967), rev'd in part, 415 F.2d 212 (5th Cir. 1969).

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