Galke v. Duffy

IRVING R. KAUFMAN, Circuit Judge:

Edmund Galke challenges the reclassification of his seniority status by Local 138, International Union of Operating Engineers (Union) and its president James Duffy. The Union manages a hiring hall for operating engineers seeking employment in the construction industry in New York’s Nassau and Suffolk Counties. Job referrals are based on an employee’s “industry seniority date,” which it defines as the first date of regular employment within a job classification covered by the Union’s collective bargaining agreement and falling within the Union’s geographical jurisdiction.

In 1973 Galke succeeded in changing his seniority date from 1961 to 1947. This adjustment occurred after the Union received a letter purportedly written by an official of the Social Security Administration (SSA) stating that Galke had worked as an operating engineer in 1947. His status was reclassified in 1979, however, after the Union discovered that the letter was not authentic. President Duffy informed Galke of this change and notified him of his right to present additional evidence to authenticate his earlier seniority date. Galke appeared at a regular meeting of the Union’s Executive Board in January 1980 to submit additional proof of his 1947 employment. The Board, however, found this evidence insufficient, and upheld the reclassification.

Galke instituted this lawsuit, claiming that the Board’s action constituted “discipline” without a “full and fair hearing,” as is required by the Labor Management Reporting and Disclosure Act.1 He sought a preliminary injunction to restore his 1947 seniority date and requested back pay damages.2 After conducting a hearing in August 1980, Judge Weinstein dismissed the action. He found Galke’s testimony “incredible,” and concluded that the Executive Board was justified in rejecting Galke’s application for the 1947 seniority date. Because the Union’s seniority reclassification does not constitute “discipline” under the' LMRDA, we affirm Judge Weinstein’s dismissal.

We recognize that the characterization of a particular union action as “discipline” is a question of law. Morrissey v. National Maritime Union, 544 F.2d 19, 25-26 (2d Cir. 1976). “Discipline” typically involves official union conduct that has the purpose and effect of punishing a member. See id. at 26. Thus, a union’s black-listing of a member for his refusal to abide by an arbitration proceeding authorized in a collective bargaining agreement constitutes “discipline.” Detroy v. American Guild of Variety Artists, 286 F.2d 75 (2d Cir.), cert. denied, 366 U.S. 929, 81 S.Ct. 1650, 6 L.Ed.2d 388 (1961). In contrast, unilateral union alterations of employee status are not “discipline” where reasonable regulations are uniformly and fairly enforced, Williams v. International Typographical Union, 400 U.S. 824, 91 S.Ct. 47, 27 L.Ed.2d 53 (1970), and where no stigma attaches to reclassification. Macaulay v. Boston Typographical Union, 474 F.Supp. 344, 346-47 (D.Mass. 1979).

Local 138’s action in reclassifying Galke’s seniority status from 1947 to 1961 is more administrative and ministerial than punitive in nature. Galke was not penalized for submitting the fraudulent letter from the SSA to the Union. Instead, he was reclassified pursuant to the Union’s Dispatching Procedure. This action merely limited Galke’s employment opportunity to the status to which he was entitled. Moreover, Galke was not stigmatized or separated from comparable members in good standing. Miller v. Holden, 535 F.2d 912, 915 (5th Cir. 1976).

Judge Weinstein did not explicitly s'tate that “discipline” was not involved in this case. He did find, however, that Galke presented no credible facts to prove that the Union’s reclassification of his seniority date was improper. It follows, therefore, that the Union’s action resulted from the uniform and fair application of the Dispatching Procedure. Williams, supra; Macaulay, supra. Accordingly, this adjustment was not disciplinary in nature.

We also decline to characterize Galke’s reclassification as “discipline” for a more practical reason. It would be onerous to require a union to conduct a full and fair hearing, in which it would bear the burden of proof, whenever it discovers that certain information submitted by an employee seeking to change his seniority date is incorrect. Any union attempt to correct even clerical errors, then, would be “discipline,” and the procedural safeguards of the LMRDA would necessarily attach. Compliance with these requirements clearly would not be “feasible” in that context. Morrissey, supra, 544 F.2d at 26.3

Since, as a matter of law, Galke was not subject to union “discipline,” Judge Wein-stein did not have to consider whether the informal post-classification proceedings conducted by the Executive Board constituted a “full and fair hearing.” 29 U.S.C. § 411(a)(5). Moreover, the court was not required to submit the issue of damages to a jury. We conclude that the case was properly dismissed.

Affirmed.

1 Section 101(a)(5) of the Labor Management Reporting and Disclosure Act (LMRDA), 29 U.S.C. § 411(a)(5) (1976) provides:

No member of any labor organization may be fined, suspended, expelled, or otherwise disciplined except for nonpayment of dues by such organization or by any officer thereof unless such member has been (A) served with written specific charges; (B) given a reasonable time to prepare his defense; (C) afforded a full and fair hearing.

2 Galke also filed a charge with the National Labor Relations Board, claiming that the Union’s reclassification of his seniority status constituted an unfair labor practice. The Board decided not to press charges against the Union on September 30, 1980.

3 We are puzzled by the dissent’s argument that our “practical” rationale for declining to characterize Galke’s reclassification as “discipline” bars him from obtaining any remedy whatsoever. See dissent, infra, at n. 1. In fact, if such a reclassification results from a union’s unfair labor practice, as was the case with a prior adjustment of Galke’s status in 1977, the National Labor Relations Board is authorized to order reinstatement and other remedies.

In holding that the Union’s reclassification of Galke’s seniority date in 1979 is not “discipline” under the LMRDA, we do not express any view on whether that action could have been challenged as an unfair labor practice. As an alternative to bringing this action under the LMRDA, Galke wisely raised his grievance before the Board. The Board declined to pursue the complaint, and we see no reason to characterize this type of reclassification as “discipline” merely because it may not always be found by the Board to constitute an unfair labor practice.