decided: March 23, 1981.
EDMUND L. GALKE, PLAINTIFF-APPELLANT,
JAMES J. DUFFY, INDIVIDUALLY AND AS PRESIDENT OF LOCAL 138, INTERNATIONAL UNION OF OPERATING ENGINEERS, AFL-CIO, AND LOCAL 138, INTERNATIONAL UNION OF OPERATING ENGINEERS, AFL-CIO, DEFENDANTS-APPELLEES .
Appeal from a judgment entered in the United States District Court for the Eastern District of New York, Jack B. Weinstein, Judge, dismissing the complaint in an action alleging the wrongful reclassification of appellant's seniority status. Affirmed.
Before Kaufman, Oakes and Meskill, Circuit Judges.
Edmund Galke challenges the reclassification of his seniority status by Local 138, International Union of Operating Engineers (Union) and its president James Duffy. The Union manages a hiring hall for operating engineers seeking employment in the construction industry in New York's Nassau and Suffolk Counties. Job referrals are based on an employee's "industry seniority date," which it defines as the first date of regular employment within a job classification covered by the Union's collective bargaining agreement and falling within the Union's geographical jurisdiction.
In 1973 Galke succeeded in changing his seniority date from 1961 to 1947. This adjustment occurred after the Union received a letter purportedly written by an official of the Social Security Administration (SSA) stating that Galke had worked as an operating engineer in 1947. His status was reclassified in 1979, however, after the Union discovered that the letter was not authentic. President Duffy informed Galke of this change and notified him of his right to present additional evidence to authenticate his earlier seniority date. Galke appeared at a regular meeting of the Union's Executive Board in January 1980 to submit additional proof of his 1947 employment. The Board, however, found this evidence insufficient, and upheld the reclassification.
Galke instituted this lawsuit, claiming that the Board's action constituted "discipline" without a "full and fair hearing," as is required by the Labor Management Reporting and Disclosure Act.*fn1 He sought a preliminary injunction to restore his 1947 seniority date and requested back pay damages.*fn2 After conducting a hearing in August 1980, Judge Weinstein dismissed the action. He found Galke's testimony "incredible," and concluded that the Executive Board was justified in rejecting Galke's application for the 1947 seniority date. Because the Union's seniority reclassification does not constitute "discipline" under the LMRDA, we affirm Judge Weinstein's dismissal.
We recognize that the characterization of a particular union action as "discipline" is a question of law. Morrissey v. National Maritime Union, 544 F.2d 19, 25-26 (2d Cir. 1976). "Discipline" typically involves official union conduct that has the purpose and effect of punishing a member. See id. at 26. Thus, a union's black-listing of a member for his refusal to abide by an arbitration proceeding authorized in a collective bargaining agreement constitutes "discipline." Detroy v. American Guild of Variety Artists, 286 F.2d 75 (2d Cir.), cert. denied, 366 U.S. 929, 81 S. Ct. 1650, 6 L. Ed. 2d 388 (1961). In contrast, unilateral union alterations of employee status are not "discipline" where reasonable regulations are uniformly and fairly enforced, Williams v. International Typographical Union, 400 U.S. 824, 91 S. Ct. 47, 27 L. Ed. 2d 53 (1970), and where no stigma attaches to reclassification. Macaulay v. Boston Typographical Union, 474 F. Supp. 344, 346-47 (D.Mass.1979).
Local 138's action in reclassifying Galke's seniority status from 1947 to 1961 is more administrative and ministerial than punitive in nature. Galke was not penalized for submitting the fraudulent letter from the SSA to the Union. Instead, he was reclassified pursuant to the Union's Dispatching Procedure. This action merely limited Galke's employment opportunity to the status to which he was entitled. Moreover, Galke was not stigmatized or separated from comparable members in good standing. Miller v. Holden, 535 F.2d 912, 915 (5th Cir. 1976).
Judge Weinstein did not explicitly state that "discipline" was not involved in this case. He did find, however, that Galke presented no credible facts to prove that the Union's reclassification of his seniority date was improper. It follows, therefore, that the Union's action resulted from the uniform and fair application of the Dispatching Procedure. Williams, supra; Macaulay, supra. Accordingly, this adjustment was not disciplinary in nature.
We also decline to characterize Galke's reclassification as "discipline" for a more practical reason. It would be onerous to require a union to conduct a full and fair hearing, in which it would bear the burden of proof, whenever it discovers that certain information submitted by an employee seeking to change his seniority date is incorrect. Any union attempt to correct even clerical errors, then, would be "discipline," and the procedural safeguards of the LMRDA would necessarily attach. Compliance with these requirements clearly would not be "feasible" in that context. Morrissey, supra, 544 F.2d at 26.*fn3
Since, as a matter of law, Galke was not subject to union "discipline," Judge Weinstein did not have to consider whether the informal post-classification proceedings conducted by the Executive Board constituted a "full and fair hearing." 29 U.S.C. § 411(a)(5). Moreover, the court was not required to submit the issue of damages to a jury. We conclude that the case was properly dismissed.
OAKES, Circuit Judge (dissenting):
I believe that the majority has the cart before the horse. It essentially decides that the district court correctly found that the appellant employee's case for an earlier seniority date was insubstantial or incredible and then holds that, because the union executive board's decision was correct, its action reducing appellant's seniority was not "discipline" within the meaning of sections 101(a)(5)(C) and 609 of the Labor-Management Reporting and Disclosure Act (LMRDA), 29 U.S.C. §§ 411(a)(5)(C), 529.*fn1 But the district court, as I see it, itself erroneously conceived the question before it as being whether the union's decision in the seniority dispute was correct on the merits, rather than whether the employee was disciplined within the meaning of the LMRDA. See Stein v. Mutuel Clerks' Guild of Massachusetts, Inc., 560 F.2d 486, 491 (1st Cir. 1977); Vars v. International Brotherhood of Boilermakers, 320 F.2d 576, 578 (2d Cir. 1963).
In my view the union's action here was "discipline" within the Act. See generally Detroy v. American Guild of Variety Artists, 286 F.2d 75, 81 (2d Cir.), cert. denied, 366 U.S. 929, 81 S. Ct. 1650, 6 L. Ed. 2d 388 (1961). The determination whether application to an employee of a union regulation such as the reduction of appellant's seniority here constitutes discipline seems to turn on whether the employee has been "singled out" and whether he disputes the facts underlying the application of the regulation to him. See Beaird & Player, Union Discipline of Its Membership Under Section 101(a)(5) of Landrum-Griffin: What Is "Discipline" and How Much Process Is Due?, 9 Ga.L.Rev. 383, 392-98 (1975). Appellant contends that he is the only employee who has had his seniority date unilaterally changed by the union, and he disputes the facts supporting the application of the regulation to him. There is some evidence in the record in support of his position in addition to his own testimony and the letter from Robert A. Cook, Plaintiff's Exhibit 3, both of which were discredited by the district court. I refer specifically to Plaintiff's Exhibit 2.*fn2
If I am correct that the union administered "discipline" then the only question to be determined by the court below, with respect to the LMRDA section 101(a)(5)(C) claim, was whether appellant had been afforded a "full and fair hearing" in the union disciplinary proceedings. I would remand for findings by the district court on this issue, particularly in regard to the impartiality of the union executive board. See Feltington v. Moving Picture Machine Operators Union Local 306, 605 F.2d 1251, 1256-57 (2d Cir. 1979), cert. denied, 446 U.S. 943, 100 S. Ct. 2169, 64 L. Ed. 2d 799 (1980).
With respect to appellant's claim under LMRDA section 609, 29 U.S.C. § 529, the issue is whether the union's disciplinary action stemmed from a retaliatory motive. Cooke v. Orange Belt District Council of Painters No. 48, 529 F.2d 815, 819-20 (9th Cir. 1976). The question of motive is one for the trier of fact, Bradford v. Textile Workers of America Local 1093, 563 F.2d 1138, 1143 (4th Cir. 1977). And appellant was entitled to a jury trial of his damages claim, notwithstanding the fact that this claim was joined with a request for equitable relief under LMRDA section 101(a)(5)(C), Feltington, 605 F.2d at 1257-58.
Accordingly I dissent.