Swygert, Chief Judge, and Cummings and Stevens, Circuit Judges.
Appellants, a teachers' union and 22 of its members, contend that a local school board's unfair labor practices are proscribed by the Civil Rights Acts, 42 U.S.C. § 1983 and 28 U.S.C. § 1343(3), (4). The district court found merit in some, but not all, of their contentions. They appealed from two orders entered on August 3 and August 14, 1970, 318 F. Supp. 757, which dismissed their claims but ordered reinstatement of nine other teachers (who were plaintiffs in the court below) and enjoined defendants*fn1 from discriminating against members of appellant's union.
The local union representing the teachers in the Hanover School District was organized in the 1969-70 school year. It selected six representatives to negotiate with the defendants. Although a few meetings were held, defendants refused to engage in meaningful bargaining with the union.
The school board met on April 14, 1970, to consider the reemployment of the teaching staff. A week later, nine of the most active leaders were notified that their contracts would not be renewed. On April 24, 1970, the discharged teachers and the union commenced this action.
On April 28, 1970, the defendants mailed to each teacher who had not been fired a contract for the 1970-71 academic year and a statement that the contract would have to be signed and returned by June 1. Apparently some teachers, not parties to this litigation, executed and returned the tendered contracts. The 22 individual appellants did not.
After the original complaint was filed, it was amended several times and a number of evidentiary hearings were held. The record on appeal does not include any of those transcripts,*fn2 but it is fair to infer from the docket entries that plaintiffs presented a substantial quantity of evidence relating both to the merits and to their request for a preliminary injunction during May and early June.
Before the evidentiary hearings had been completed, on June 18, 1970, plaintiffs filed their Third Amended Complaint which, for the first time, asserted a claim on behalf of the 22 appellants who had not returned the 1970-71 contracts mailed to them in April. In that pleading appellants alleged that the mailing of individual contracts violated a duty to negotiate a master agreement with the union and was intended to undermine and destroy the union, and to "violate the First Amendment rights of the said plaintiffs."*fn3 In explanation of their decision not to execute the individual agreements, appellants alleged:
"27. That upon said receipt of the contract, twenty-two (22) of the union teachers believing it was a violation of the contract requiring a negotiation of a master contract and believing it a violation of the statutes of the State of Indiana and their constitutional rights to belong and act through a union and believing that under the statutes of the State of Indiana they are not required to execute a contract, said plaintiffs did not sign the contract nor have they resigned. That said school administration, the defendants, has made it known that said twenty-two (22) teachers will not be re-employed and are terminated."
They made no allegation that the contracts tendered to the 22 appellants were less favorable than those tendered to non-union teachers, or than the contracts for the previous year.
The trial resumed after the Third Amended Complaint was filed, but it does not appear that any answer to that pleading was filed by defendants. Appellants do not suggest that they were prevented from adducing any evidence relevant to the claims of the 22 individual appellants or indeed to any other issue. The trial concluded on July 10, 1970, written briefs were thereafter filed, and on August 3 and August 14, 1970, the court made its rulings.
In a carefully prepared memorandum, the district court found that the teaching contracts of the nine original individual plaintiffs were terminated in retribution for their union activities. The court held that: "By discharging the nine teachers for exercising that freedom of association guaranteed by the Constitution, the defendants have violated the civil rights of these plaintiffs." (A. 178) The defendants were ordered to offer those plaintiffs contracts for the 1970-71 year no less favorable than their 1969-70 contracts; furthermore, defendants were enjoined "from discriminating in any way against members of the Hanover Township Federation of Teachers for exercising their First Amendment right of association." (A. 179) No appeal was taken from this aspect of the order.
In a separate memorandum the court considered the contention that the action of the school board in sending out individual contracts constituted a failure to bargain in good faith with the union. He concluded that the claims of the 22 appellants raised state law issues, but did not present any federal question; he therefore dismissed them from the action. Finally, he also found that the union and its officers did not have standing ...