upon in assuring Duffy that the charges of improper issuance of "A" cards raised "no major areas of concern."
The complaint also alleges that the IBEW removed Duffy from his appointed position of business representative and forced him to resign his elected position on the executive board. The complaint then indicates (in para. 18) that Local 134 agreed with IBEW not to reinstate Duffy to his former positions as a condition for IBEW's lifting the trusteeship.
Local 134 argues, however, that refusing to reinstate Duffy to his appointed position of business representative and to his elected position on the executive board does not violate the LMRDA. In support, the local cites Finnegan v. Leu, 456 U.S. 431, 72 L. Ed. 2d 239 , 102 S. Ct. 1867 (1982).
Local 134's refusal to reinstate Duffy to his elected position raises issues different from its refusal to reinstate him to his appointed position. Finnegan v. Leu does not address removal from office of an elected union officer. Instead, the relevant case is Sheet Metal Workers v. Lynn, 488 U.S. 347, 102 L. Ed. 2d 700 , 109 S. Ct. 639 (1988). In Sheet Metal Workers, the Supreme Court ruled that a trustee's retaliatory removal of an elected union official violates § 101 of the LMRDA. Thus, under Sheet Metal Workers, Local 134's alleged refusal to return Duffy to his elected position on the executive board also constitutes a violation of § 101. Although Sheet Metal Workers did not reach the issue of whether the retaliatory removal of an elected official violates § 609 as well as § 101, see id. at 353 n.5, this court rules that the allegations regarding Local 134's refusal to reinstate Duffy to his elected position also state a violation of § 609.
The Finnegan case does address the question of whether Local 134's failure to reinstate Duffy to his appointed position states a claim under the LMRDA. Finnegan presented the question of whether the discharge of a union's appointed business agents by the union president, following his election over the candidate supported by the business agents, violated the LMRDA. The Court held that discharge from a position as union employee does not constitute "discipline" within the meaning of § 609. It reasoned that a union president should be able to choose his staff to make sure that he is surrounded with people who will support his program and willingly carry out his directives. Accordingly, Local 134's refusal to reinstate Duffy to the appointed position of business representative was not in violation of § 609.
The Court in Finnegan, however, acknowledged that although firing a union employee is not "discipline" within the meaning of § 609, it may amount to a violation of that individual's rights under another section of the LMRDA. See id. at 440-441. Citing Schonfeld v. Penza, 477 F.2d 899 (2d Cir. 1973), the Supreme Court noted that the power to remove a union employee from office may be a means of suppressing dissent either through retaliation or intimidation. See id. at 441. The Court declined to rule on whether such an effort to suppress dissent might give rise to a cause of action under the LMRDA for violating the union member's rights to equal treatment or free speech. See id.
In this case, the complaint alleges that Duffy's removal and the subsequent failure to reinstate him were part of a plan to stifle dissent. The complaint alleges that both defendants engaged in acts calculated to obstruct an investigation of misconduct on the part of members of the local's executive board. Defendants' interference in the investigation and the exclusion of Duffy from office were alleged to be elements of a scheme to silence Duffy and to prevent Local 134 members from the free exercise of their LMRDA rights to participate in the governance of their union.
The Seventh circuit has not yet ruled on whether Finnegan v. Leu bars suits under the LMRDA by union employees who claim they have been disciplined as a means of suppressing dissent. Other circuits, however, apparently have recognized the Schonfeld exception to Finnegan v. Leu and have indicated that the LMRDA does not permit the disciplining of union employees when done as a means of stifling dissent. See, e.g., Adams-Lundy v. Ass'n of Professional Flight Attendants, 731 F.2d 1154, 1158 (5th Cir. 1984). This court rules that while Local 134's refusal to reinstate Duffy to the appointed position of business representative was not "discipline" within the meaning of § 609, that refusal may have been in violation of § 101.
In summary, therefore, this court rules that Duffy's complaint states a cause of action under 29 U.S.C. § 412. Duffy has sufficiently pleaded that his rights under §§ 101 and 609 have been violated.
For the foregoing reasons, Local 134's motion to dismiss is denied.
BRIAN BARNETT DUFF, JUDGE
UNITED STATES DISTRICT COURT
DATE: December 5, 1991