Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 72 C 188 PHILIP W. TONE, Judge.
Swygert, Chief Judge, Pell, Circuit Judge, and Eschbach, District Judge.*fn*
ESCHBACH, District Judge.
Plaintiffs-appellants have taken this appeal from a decision of the district court denying their motion for summary judgment and dismissing their action without prejudice. Plaintiffs-appellants argue that the district court was in error both in denying their motion and in dismissing the action. We agree with the district court and therefore will affirm.
The facts, as set forth in the district court's memorandum of decision, are not substantially disputed. Plaintiffs-appellants are employees of Northwest Airlines, Inc. (NWA) and members of the International Association of Machinists and Aerospace Workers, AFL-CIO (IAM). Plaintiffs-appellants brought this action against IAM's Local Lodge 1487 and its officers seeking to enjoin union disciplinary proceedings which had been instituted against plaintiffs-appellants for crossing the picket lines of a sister union. Plaintiffs-appellants seek to represent themselves and a class consisting of all employees against whom such proceedings have been instituted. A preliminary injunction was issued to delay the disciplinary proceedings during the pendency of this action.
On July 8, 1970, the Brotherhood of Railway and Airline Clerks (BRAC) struck against NWA and established picket lines. Although IAM's collective bargaining agreement with NWA contained a no-strike provision,*fn1 IAM nevertheless instructed its members, who were employees of NWA, not to cross BRAC's picket line. However, NWA ordered its employees back to work and plaintiffs-appellants complied with NWA's order, crossed the BRAC picket line and returned to work. The question of whether, in view of the no-strike provision, IAM had the right to instruct its members not to cross the BRAC picket line was referred to a System Board of Adjustment (SBA) by the Court of Appeals for the Eighth Circuit. Northwest Airlines, Inc. v. Int'l Ass'n of Machinists and Aerospace Workers, AFL-CIO, 442 F.2d 244 (8th Cir. 1970). The Board decided on December 14, 1970, that:
IAM, in light of the no-strike provisions of the bargaining agreement does not retain the right to instruct its members to honor the picket lines of a sister Union.
On December 8, 1970, shortly before the SBA handed down its decision, IAM and NWA negotiated a back to work agreement providing in paragraph VI that:
There will be no reprisals, recriminations, disciplinary actions, grievances or reprimands by either party against any employee represented by IAM because of any action or non-action during or arising from the strike.
Subsequently, despite the agreement of December 8, 1970, the union local notified plaintiffs-appellants that charges had been preferred against them for conduct unbecoming a union member, consisting of crossing the BRAC picket line, and ordered them to appear for trial on those charges. Plaintiffs-appellants thereupon filed this action to enjoin the disciplinary proceedings, relying upon the no-strike provision of the NWA-IAM collective bargaining agreement, the no-reprisal provision of the back to work agreement, and the decision of the System Board of Adjustment.
On January 26, 1972, an order was issued compelling the union and its officers to hold the disciplinary proceedings in abeyance until the final disposition of all issues in this case. The parties subsequently filed reciprocal motions for summary judgment. On December 14, 1972, the district court entered an order and memorandum of decision denying plaintiffs-appellants' motion for summary judgment and treated the defendants-appellees' motion for summary judgment as a motion to dismiss raising matters in abatement and dismissed the entire action without prejudice to plaintiffs-appellants' right to commence further actions. The basis for the district court's decision was that plaintiffs-appellants had violated the second proviso of Title 29, U.S.C. § 411(a) (4). The parties had previously signed and filed a stipulation with the court to the effect that NWA was financing plaintiffs-appellants' suit. The district court found that NWA was an interested employer within the meaning of the proviso and that the suit could not be maintained by plaintiffs-appellants while financed by NWA.
The first question presented is whether the district court erred in its construction of the second proviso of Title 29, U.S.C. § 411(a) (4), in determining that NWA was an "interested employer." Appellant contends that one of the grounds for relief stated in the complaint is that the guarantee set forth in Title 29, U.S.C. § 411(a) (5), which provides that no union member can be disciplined unless he has been served with written specific charges and given a full hearing after a reasonable time within which to prepare his defense,*fn2 was violated by appellees.
Title 29, U.S.C. § 412, confers original jurisdiction on the district courts to hear controversies involving the guarantee set forth in section 411(a) (5). In order to safeguard the guarantees set out in 29 U.S.C. § 411-415, § 411(a) (4) prohibits labor unions from limiting the rights of their members to institute actions against the unions or their officers.*fn3 However, the right ...