Appeal from the United States District Court for the Eastern District of Wisconsin. No. 74-C-33 ROBERT W. WARREN, Judge.
Swygert, Wood, Circuit Judges, and Robert A. Grant, Senior District Judge.*fn1
This appeal presents questions of interpretation of the Landrum-Griffin Act, 29 U.S.C. §§ 401-531: section 411(a)(1) and (2), the equal rights and freedom of speech provisions; section 411(a)(5)(C), the provision covering disciplinary actions of union members; and section 501, the provision respecting the fiduciary responsibility of officers of labor organizations.
In March 1972 plaintiff Thomas Lux was elected to a one-year term on the Nominating Committee of the Steelworkers Federal Union, No. 19806, a Milwaukee local union affiliated with the American Federation of Labor and Congress of Industrial Organizations. Lux was reelected in March 1973 to an additional one-year term, and later he was appointed to the Milwaukee Labor Council. At the same time plaintiff James Siesennop was chairman of the local's Legislative Committee and a member of the Council.
Defendant Paul Blackman occupied the position of president of the local. In 1973, after he had learned that Lux and Siesennop had been affiliated with the Communist party prior to their becoming officers of the local, he brought charges against them for violating the union's constitution which provided that "no member shall serve as an officer . . . who is or who within the preceding five years has been a member of the Communist Party." Pursuant to the union constitution a trial took place before the Executive Committee of the local. The Committee acquitted the plaintiffs of the charges by a five to four vote. Subsequently the union membership directed the Executive Committee to reopen the trial for the purpose of introducing new evidence. Following the new trial the Committee upheld the charges by a five to four vote.
Although the union constitution required a two-thirds vote of the Executive Committee "to suspend, punish or expel a member," president Blackman ruled that the two-thirds vote provision did not apply to the removal of officers and that, in view of the vote on the retrial, the plaintiffs stood convicted of the charges. The plaintiffs were thereupon removed from their union offices.*fn2
The plaintiffs then commenced this action under the provisions of the Labor-Management Reporting and Disclosure Act (LMRDA) for injunctive relief and damages. They sought by way of injunction reinstatement to the union offices from which they had been removed and acceptance of their nominations to new offices in the forthcoming elections.*fn3 As the result of an internal union appeal to the AFL-CIO parent organization, plaintiffs' claims regarding eligibility for future office were resolved in their favor, allowing them to run if they so chose. In their appeal to this court they concede that their claim for an injunction is moot. That leaves in issue only their claims for monetary damages, attorneys fees, and costs.
In the district court the defendants moved to dismiss the plaintiffs' complaint for failure to state a claim upon which relief could be granted and for lack of jurisdiction over the subject matter. The district judge wrote a memorandum and issued an order dismissing the action. He ruled that the complaint failed to state a justiciable claim, "insofar as [it] challenges the procedure through which dismissal from union office was effected." In addition he held that the court lacked subject matter jurisdiction "to consider the propriety of the specific rules upon which eligibility for union office is conditioned." The plaintiffs then filed the present appeal.
Plaintiffs assert that the allegations of their complaint demonstrate (upon proof) that the defendants violated their LMRDA statutory rights enumerated in 29 U.S.C. § 411(a)(1) and (2), § 411(a)(5)(C), and §§ 501, 529. Jurisdiction was based on 29 U.S.C. §§ 412 and 529.
Plaintiffs contend that the local's president violated the union constitution by "usurping the decision and judgment" of the Executive Committee which had exonerated the plaintiffs. They also charge that this conduct denied them a full and fair hearing, and removed them from office by combining the "functions of charging party and ultimate decision maker in [the president]." Plaintiffs concede that our decision in Airline Stewards and Stewardesses Ass'n. v. Transport Workers Union, 334 F.2d 805 (7th Cir. 1964), is squarely against their claim that they were denied procedural due process as provided by section 411(a)(5)(C). In that case we held that the section refers only to union members -- not officers -- and that it protects members of a labor organization qua members but has no application to officers of the union qua officers. Plaintiffs ask us to overrule our prior decision. We decline to do so. We are in agreement with the district judge's statement: "The plaintiffs were not entitled to a full and fair hearing as provided by § 411(a)(5). Union officers may be removed summarily . . . . The procedural protections of § 411(a)(5) do not contemplate the removal of members from union office."
The plaintiffs next contend that the allegations of their complaint demonstrate a violation of section 411(a)(1) and (2). The primary allegations on which they rely are (1) Blackman's "violation" of the local union's constitution by ignoring the Executive Board's judgment, and (2) an "unlawful combination of functions" by Blackman. The plaintiffs' position is that their cause of action relates to "procedure": the manner in which Blackman "usurped" the Executive Board decision and "violated" the union constitution. The plaintiffs argue that Blackman's action denied them equal protection under section ...