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Harris v. Plasterers and Cement Masons Local No. 406

decided: March 10, 1980.

ROOSEVELT HARRIS, LEO PITTS, GLOSTER HARRIS AND HERBERT BRITT, PLAINTIFFS-APPELLEES,
v.
PLASTERERS AND CEMENT MASONS LOCAL NO. 406, DEFENDANT-APPELLANT .



Appeal from the United States District Court for the Northern District of Indiana, Hammond Division. No. CV H-74-112 -- Allen Sharp, Judge .

Before Fairchild, Chief Judge, and Pell and Wood, Circuit Judges.

Author: Fairchild

Plaintiffs are four cement finishers, and were members of an International Union (Operative Plasterers' and Cement Masons' International Association). Plaintiffs Roosevelt Harris, Gloster Harris, and Herbert Britt were members of Local No. 101 at South Bend, Indiana. Plaintiff Leo Pitts was a member of Local No. 16 at Kalamazoo, Michigan.

In April, 1973, Batteast Construction Company was performing a contract at Gary, Indiana, within the jurisdiction of Local No. 406. Batteast employed six cement finishers, members of Local No. 406. They had a collective bargaining agreement. A dispute arose and the cement finishers left the job. Plaintiffs had been working for Batteast at South Bend, and at Batteast's request came to work on the Gary job. They stayed until the job was completed in November, 1973.

In May, 1973, Local No. 406 fined each plaintiff $500.00. Plaintiffs did not pay the fines and did not appeal. In accordance with the constitution of the International Union, they were, for non-payment, expelled from membership in the International and the Locals of which they had been members.

In April, 1974, plaintiffs brought this action against the International Union, and Locals No. 406, No. 16, and No. 101. Jurisdiction is founded on 29 U.S.C. § 412 (Action for infringement of rights secured by 29 U.S.C. §§ 411-415, "Bill of Rights of Members of Labor Organizations"). The theory of the action was that the fines were unlawfully imposed because the written notice of charges was inadequate, and the hearing was held May 22, 1973 in the absence of plaintiffs, notwithstanding the granting of a continuance to May 29; that the court could reach the merits because requests for information concerning appeal procedures were denied until the time for appeal had expired; that expulsion was unlawful because, based on improperly imposed fines and expulsion, had caused loss of wages and employment and other damages.

In 1975 plaintiffs agreed to settle with the International Union and Locals No. 16 and No. 101. Plaintiffs were reinstated to membership upon payment of one month's dues, the fines were dropped, and plaintiffs agreed to dismiss the action, except against Local No. 406.

After bench trial of the action against Local No. 406, the district court entered findings and judgment in favor of plaintiffs.

I

Defendant argues that this action under 29 U.S.C. § 412 could not be brought against Local No. 406 because plaintiffs were not members of that organization.

Plaintiffs were, however, members of the International Union as well as the other locals. The constitution of the International provided for Traveling Cards so that members of one local might properly work in the jurisdiction of another local. It also provided, "Members shall be under control and jurisdiction of the Local Union under which they are working, and can be fined by said Local Union for violation of working rules, whether their card has been deposited or not; said fine to belong to the Local Union which placed the fine." The constitution also provides that failure to pay within a specified period shall cause the member to be dropped from the roll.

Section 412 authorizes an action by any person whose rights secured by the provisions of the subchapter have been infringed by a violation of the subchapter. Section 411(a)(5) forbids disciplinary action against a member unless he has been served with written specific charges, given a reasonable time to prepare his defense, and afforded a full and fair hearing.

It does seem that plaintiffs were not members of Local No. 406, the organization which conducted the proceeding and imposed the fines. Local No. 406 had jurisdiction, however, under the constitution of the International, and by its terms fines imposed by Local No. 406, if unpaid, terminated plaintiffs' membership in the International and the other locals. Plaintiffs were members of the latter organizations, which had, through the constitution, delegated disciplinary power over members to any local under whose jurisdiction a traveling member worked.

We have no difficulty in concluding that Section 411(a)(5) applied to proceedings of Local No. 406 to discipline persons in the position of plaintiffs, and that if Local No. 406 violated Section 411(a)(5), Section 412 gave plaintiffs a right of action.

Gavin v. Structural Iron Workers Local No. 1, etc., 553 F.2d 28 (7th Cir. 1977), relied on by defendant, is not in point. In Gavin, members of the affiliated international and other locals were claiming the rights of membership in the defendant local. Here, however, plaintiffs are seeking redress from defendant local for injuries to their rights of membership in the affiliated international and other locals, caused by improper acts of defendant local in exercising power delegated to it by the constitution of the International.

II

Defendant has maintained both in the district court and here that plaintiffs failed to exhaust ...


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