Appeal from an order of the Southern District of New York, Whitman Knapp, Judge, granting a preliminary injunction directing defendants-appellants to reinstate plaintiff-appellee Dave Newman to his position as job steward in Local 1101, Communications Workers of America AFL-CIO, and restraining the defendants from refusing to certify any union member as a job steward because of the exercise of free speech and other rights to which the members are entitled under § 101(a)(2) of the Labor Management Reporting and Disclosure Act of 1959 (Landrum-Griffin Act), 29 U.S.C. § 411(a)(2).
Smith, Mansfield and Oakes, Circuit Judges.
MANSFIELD, Circuit Judge:
In this action by members of Local 1101 ("Local") of the Communications Workers of America, AFL-CIO ("CWA") against it and various of its officers alleging violation of the plaintiffs' free speech rights as union members under §§ 101(a)(2) and 609 of the Labor-Management Reporting and Disclosure Act, 29 U.S.C. § 411(a)(2) and § 529 ("LMRDA"),*fn1 the defendants appeal from an injunction issued on May 26, 1977, by Judge Whitman Knapp of the Southern District of New York. His order directed them to reinstate plaintiff-appellee Dave Newman as a job steward of Local 1101 and restrained them from refusing to certify or from decertifying any member of Local 1101 as a job steward because of his exercise of his rights under § 101(a)(2), LMRDA. The injunction was issued on the basis of apparently undisputed facts disclosed in affidavits submitted by the parties, without any evidentiary hearing. The central issue on this appeal is whether removal of Newman from his position as a job steward violates or threatens to violate his free speech rights or those of others as union members under the LMRDA. For the reasons stated below, we hold that it does not and reverse.
The membership of Local 1101 consists of approximately 11,000 non-supervisory employees in the Plant Department of the New York Telephone Company and in the Empire City Subway Company, who work in the Boroughs of Manhattan and the Bronx, installing, maintaining and repairing communications systems, equipment and facilities. Unlike many other local unions, Local 1101 does not act as the collective bargaining representative of its members. That function is performed by the national union, CWA, in negotiations on a nation-wide basis on behalf of some 29 units, including Local 1101, with the American Telephone and Telegraph Company. Local 1101's function is to enforce the agreement negotiated by CWA, securing for its membership the benefits provided for in the agreement, and carrying out union policies and programs as directed by CWA. It recruits new members, informs and interprets for its members the applicability in differing work situations of the terms of the complicated bargaining agreement between CWA and AT&T, which has numerous provisions governing such important matters as work schedules, computation of work and travel time, overtime, night work and the like for many different work classifications. Local 1101 also serves as a liaison between CWA and union members, communicating the views of members to the union leadership and educating members as to the union's programs as well as maintaining legislative and community service committees, advising members of their rights and of available grievance procedures, and the like.*fn2
According to Local 1101's by-laws, the power to govern the union is vested in its Executive Committee, which consists of its president, three vice-presidents, secretary, and treasurer, and in its Executive Board, which consists of these six officers plus five Business Agents. The by-laws (Art. XI, Sections 4, 5) (1) authorize the Executive Committee or Executive Board to create as many "Chief Steward" and "Job Steward" positions as may be "determined necessary" to assist in carrying out the Local's functions, (2) give the Committee and Board the option of permitting the job stewards to be elected by membership work units or appointed by the Committee or Board, and (3) authorize the Committee by majority vote to remove any job steward, subject to being overruled by the Board or the membership at the next membership meeting.
Under Local 1101's by-laws a job steward is required to work under the direction of the Local's officers and to perform such duties as may be assigned to him by the Executive Board, President, Vice-President, Business Agent, or Chief Steward. The responsibilities of a job steward are outlined in detail in a 52-page booklet published by the CWA entitled "CWA STEWARD'S MANUAL." The steward's principal functions are to handle and process grievances arising on his job location, promote and maintain union membership by workers in his department, attend union meetings, explain and implement CWA policies and programs so that workers "will understand and cooperate with CWA policies," review CWA publications in order to "help [the job steward] act and speak in line with Union policy," and pass along to the Local's management its members' views and ideas with respect to CWA activities. In short, the steward acts as the Local's representative on the job, primarily concerned with enforcement of the collective bargaining agreement and secondarily as a link that serves as the Local's eyes and ears.*fn3
The management of Local 1101 chose to create almost 1,000 stewardships for its 11,000 members and to permit each steward to be elected by the work force in the building or unit where he was employed, rather than appointed. One of these stewards is plaintiff-appellee Dave Newman, who was chosen in September 1975 as one of four stewards by some 90 framemen employed in the 104 Broad Street building in lower Manhattan. After joining the Local in 1971 he had actively worked for more democratization of the Local and in opposition to its leadership. Toward this end he wrote, published and distributed leaflets critical of the Local's management and policies and spoke in a similar vein at members' meetings.
On December 2, 1976, the Executive Committee of Local 1101, purportedly acting pursuant to Article XI, Section 5(B) of the Local's by-laws, voted to decertify, or remove, Newman as a job steward on the ground that at a December 1, 1976, meeting of union members at 104 Broad Street he had engaged in disruptive conduct which prevented the President of Local 1101 from engaging in a discussion with members concerning CWA's preparation for its upcoming negotiation with Bell system representatives, scheduled to begin in February, 1977, regarding the terms of a new collective bargaining agreement to replace the existing one, which would expire in August, 1977.
Some of the facts regarding Newman's conduct at the December 1, 1976, meeting are in dispute. According to the defendants, Newman interrupted Edward Dempsey, the President of the Local, when he attempted to speak to them and to elicit their views about certain key matters expected to be the subject of CWA-Bell bargaining, making any useful interchange impossible. Newman, on the other hand, asserts that the meeting was conducted in an orderly fashion, with Dempsey becoming upset and agitated when Newman presented certain resolutions previously adopted by workers at 104 Broad Street with respect to preparations for collective bargaining. Despite the existence of these disagreements, certain facts are not disputed. Newman vigorously opposed the Local's policy and program for bargaining and supported a militant approach, which would require the CWA to mobilize its membership for a strike to be called unless Bell agreed to a 32-hour week at 40 hours pay or a no lay-off clause. Furthermore, Newman advocated the organization of monthly lunch-hour rallies of workers at various Bell buildings over the five-month period preceding expiration of the existing contract to mobilize union opposition to any management proposal that did not meet this, and other, minimum demands. More facts regarding Newman's opposition to the Local's policies appear in the discussion below.
On February 6, 1977, invoking federal jurisdiction under LMRDA § 102, 29 U.S.C. § 412, the plaintiffs commenced the present action seeking Newman's reinstatement and an order enjoining the defendants from disciplining any members of Local 1101 for exercise of rights to which they are entitled under the LMRDA. Two days later plaintiffs moved for preliminary relief along the same lines, based on the affidavits of Newman and several of his co-workers at 104 Broad Street. In opposition, defendants filed affidavits of Edward Dempsey, President of Local 1101, and Anthony Vizzari, chief steward of workers at 104 Broad Street and at Bell's Central Office at 60 Broad Street, who was in charge of 10 to 14 job stewards, including Newman. On March 10, 1977, the defendants filed their answer denying violation of LMRDA and interposing affirmative defenses to the effect that removal of Newman as a job steward was justified and that federal jurisdiction was lacking.
By written opinion filed on May 27, 1977, Judge Knapp granted the requested preliminary injunction to the extent of ordering Newman's reinstatement and restraining the defendants from refusing to certify or from decertifying any member as a job steward because of his exercise of his rights under the LMRDA. Although Judge Knapp found "a divergence of views" in the Dempsey and Newman affidavits as to why Newman was removed from his position as a job steward, he concluded on the basis of certain uncontradicted statements in affidavits of some of Newman's fellow-workers that Newman had been decertified because of an article published by him in the November-December issue of The Broad Street News, a publication written by and for members at 104 Broad Street, which opposed the Local management's policies, "his repeated expression of views in opposition to the [Local 1101] leadership," and his sponsorship of the resolutions adopted on November 10, 1976, by the members at 104 Broad Street. Judge Knapp then concluded that, although the defendants' conduct was not actionable under § 101(a)(1) of the LMRDA, 29 U.S.C. § 411(a)(1), which governs members' rights to nominate and vote for candidates in free elections, plaintiffs were entitled to preliminary relief under § 101(a)(2) of the LMRDA, 29 U.S.C. § 411(a)(2), since they were "likely to succeed in establishing that Newman was decertified solely because of the views he repeatedly expressed in his article and at the December, 1976, Broad Street meeting" and "that the defendants have in effect rendered Newman and others who express similar views in opposition to the leadership ineligible to take the position of job steward to which they have been elected."
In the district court's view such decertification constituted "unlawful discipline within 29 U.S.C. § 529 in retaliation for his exercise of his rights under § 411(a)(2)." Judge Knapp further concluded that "there remains nothing in the facts before us to suggest that he [Newman] is in any way unqualified to perform the functions of a steward" and that other plaintiffs, including stewards and non-stewards, were likely to succeed in showing that the decertification of Newman as a job steward had ...