Perry v. Milk Drivers' & Dairy Employees' Union, Local 302

656 F.2d 536, 108 L.R.R.M. (BNA) 2570
CourtCourt of Appeals for the Ninth Circuit
DecidedSeptember 17, 1981
DocketNo. 79-4809
StatusPublished
Cited by11 cases

This text of 656 F.2d 536 (Perry v. Milk Drivers' & Dairy Employees' Union, Local 302) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Perry v. Milk Drivers' & Dairy Employees' Union, Local 302, 656 F.2d 536, 108 L.R.R.M. (BNA) 2570 (9th Cir. 1981).

Opinion

DAVID W. WILLIAMS, District Judge:

Perry and Neto filed suit in district court asserting that the discipline imposed upon them by the International Brotherhood of Teamsters violated § 101(a) of the Labor-Management Reporting and Disclosure Act of 1959, 29 U.S.C. § 411(a)(5) (hereinafter “ § 411(a)(5)”).1 After a three-day court trial, the district court held that appellants’ rights under § 411(a)(5) had not been violated. Appellants seek review of this decision.

Teamsters Local 302 represents employees of dairies in Alameda County, California, and has a collective bargaining agreement with Safeway Stores, Inc. Appellants belong to a faction of Local 302 strongly opposed to its incumbent leadership.

On July 14, 1977, and following the expiration of the previous collective bargaining agreement with Safeway, the membership of Local 302 voted overwhelmingly to reject Safeway’s “final” offer and to go on strike. The members of the local were clearly instructed that no picketing and strike activities were permitted at any Safeway location other than the milk and ice cream plants in Alameda County without express prior approval.

Notwithstanding these instructions, appellants and others began picketing at Safeway’s large distribution center in Richmond without notifying the union leadership. As a result, the members of the Teamster local, which represents employees at the distribution center, walked off their jobs. Picketing at the Richmond center continued for approximately three weeks. After one week, picketing was extended to the Safeway distribution center in Fremont and to various retail stores in the area. Perry and Neto were active in the leadership of this unauthorized picketing.

Upon learning of the unauthorized picketing, William Grami, a vice-president of the International Union, sent a telegram to Sullivan, Local 302’s secretary-treasurer, demanding its immediate cessation. Sullivan made copies of this telegram and attempted to distribute them to the unauthorized picketers. Sullivan testified that Perry, upon receipt of the telegram, threatened Sullivan and Local 302’s business agent, Pa-vón, and warned them not to return to the picket line at the Richmond distribution center. Sullivan later received telegrams from George Mock of the Western Conference of Teamsters and International President Fitzsimmons directing the picketing to stop. Sullivan notified each member of Local 302 of these instructions, but the orders went unheeded and the picketing continued unabated.

On July 29, Sullivan filed internal union charges against Perry and Neto, accusing them of violating provisions of the International Constitution by picketing and causing others to picket at the Richmond center. In addition, Perry was charged with “having threatened physical violence” against Sullivan and Pavón. No other picketing members of Local 302 were charged.

Pursuant to the Constitution of the International Union (“International Constitution”), the disciplinary proceedings were held before a trial panel composed of the Local 302 Executive Board. Circumstances led to the substitution of various members of the board, and the trial panel that eventually heard the charges consisted of seven persons, four of whom had run together with Sullivan on a slate opposed by Perry in [538]*5381976.2 One of the four, Dresser, had been the object of prior internal union charges brought by Neto in early 1977 alleging undemocratic procedures at union meetings. Another, Jan Zones, was Sullivan’s secretary and had typed the charges against appellants.

The trial took place on October 11, 1977. Perry’s prior request to tape record the hearing was denied, but Zones made shorthand notes of the proceedings. Written statements were read by Sullivan and Pa-vón. Perry and Neto, each represented by fellow members, produced several witnesses on their behalf. Cross-examination was permitted. There was no dispute as to the appellants’ participation in the unauthorized picketing, but Perry vigorously contested the charge that he threatened Sullivan with violence.

Following the hearing, the trial panel voted 4-3 to find both appellants guilty of the charge of picketing and causing others to picket the distribution center. For this charge, each was suspended from membership for twelve months and fined $225. The panel voted 5-1 (Dresser abstaining) to find Perry guilty of threatening Sullivan and Pavón, and Perry was suspended two more months and fined an additional $25. The suspensions had the effect of disqualifying appellants from being candidates in the Local 302 election scheduled for late 1979.

Appellants appealed to Teamsters Joint Council No. 7 requesting “a full retrial on these charges.” A hearing was held before the Executive Board of the Joint Council on February 22, 1978, and was recorded verbatim. Written statements were again presented by Sullivan and Pavón, and appellants, again represented by fellow members, called several witnesses to testify on their behalf. Cross-examination was allowed. The Board issued the following decision on April 3, 1978:

The Joint Council Executive Board having duly considered the evidence and agreements of the parties; it is hereby found that the discipline imposed by Local 302 of Brothers Neto and Perry did not violate the International Constitution or By-Laws of Local 302. Accordingly, the appeals of Brothers Neto and Perry are denied.

A further appeal was taken to the General Executive Board of the International Union. This was heard on the basis of the transcript of the proceedings before the Joint Council. On July 12, 1978, the General Executive Board voted to affirm the decision of the Joint Council. Appellants filed suit in the district court on September 27, 1978, seeking injunctive relief and damages.

On appeal, Perry and Neto claim that: (1) the provisions of the International Constitution under which they were charged were so vague and overbroad as to fail to give them notice of the conduct prohibited; (2) that the refusal to permit Perry to record the proceedings before the Local 302 trial panel violated their right to a full and fair hearing; and (3) that the Local 302 trial panel was biased against them and had prejudged the merits of the charges, and thereby deprived them of a full and fair hearing. We affirm.

I.

Appellants claim that the provisions they were accused of violating are vague and overbroad, and therefore failed to give them adequate notice of the conduct prohibited.3 There is no merit to this contention.

[539]*539Section 411(a)(5)(A) prohibits the union from disciplining any member unless that member has been served with written specific charges. This provision does not, however, require union rules to specify every prohibited conduct with absolute precision. International Brotherhood of Boilermakers v. Hardeman, 401 U.S. 233, 243-45, 91 S.Ct. 609, 615-616, 28 L.Ed.2d 10 (1971). It is enough for the prohibited conduct to be at least reasonably ascertainable from the provisions of the union constitution allegedly violated. Semancik v. UMW District 5, 466 F.2d 144, 157 (3d Cir. 1972).

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656 F.2d 536, 108 L.R.R.M. (BNA) 2570, Counsel Stack Legal Research, https://law.counselstack.com/opinion/perry-v-milk-drivers-dairy-employees-union-local-302-ca9-1981.