# P.J. Thompson, Phillip R. Pope v. Office and Professional Employees International Union, Afl-Cio > Court of Appeals for the Sixth Circuit · February 8, 1996 · 74 F.3d 1492 URL: https://www.frixlaw.com/law-library/cases/9488865 ## Case - **Full name:** P.J. THOMPSON, Et Al., Plaintiffs, Phillip R. Pope, Plaintiff-Appellee, v. OFFICE AND PROFESSIONAL EMPLOYEES INTERNATIONAL UNION, AFL-CIO, Defendant-Appellant - **Court:** Court of Appeals for the Sixth Circuit - **Decided:** February 8, 1996 - **Citations:** 74 F.3d 1492; 43 Fed. R. Serv. 1092; 151 L.R.R.M. (BNA) 2425; 1996 U.S. App. LEXIS 1747; 1996 WL 48573 - **Precedential status:** Published - **Opinion:** Concurring in part by Matia - **Judges:** Jones, Ryan, Matia - **Cited by:** 26 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9488865 ## How later opinions describe it (automated extraction) - holding that termination of a trusteeship does not moot trusteeship claim where claim was “an action at law to recover damages for the suppression of Title I rights as a result of the imposition of a trusteeship” - stating that "[w]hen a plaintiff sues for injunctive and/or declaratory relief once a trusteeship has been lifted, obviously there is no longer any relief to be had" - affirming award of $100,000 in compensatory damages, $1 in damages for expulsion, and $100,000 in punitive damages against union ## Opinion text MATIA, District Judge, concurring in part and dissenting in part. Although I agree with the majority’s disposition of six of the eight issues raised in this appeal, I respectfully dissent as to two: (1) whether Pope has standing to bring a claim under the LMRDA for his firing, and (2) whether the district court erred in directing a verdict for Pope on the issue of whether his union membership rights were violated when he was issued a withdrawal card after he was fired as business representative. With respect to these issues, it is important to understand his status within the local union. Local 268 of the OPEIU represents employees at companies such as the Tennessee Valley Authority and Baptiste Hospital. Although Pope was not a member of either Local 268 or the OPEIU and had no prior association with either, he was employed by Local 268 as a business representative. There is no dispute that the evidence shows that Pope was not and had never been employed by any employer covered by a bargaining agreement with Local 268. Pope subsequently became a member of Local 268 solely by reason of his status as an employee of Local 268. The United States Supreme Court has held that removal from appointive union employment is not actionable under either section 609 or Title I of the LMRDA, but that an elected union official does have a right of action under the LMRDA. Finnegan v. Leu, 456 U.S. 431 , 102 S.Ct. 1867 , 72 L.Ed.2d 239 (1982); Sheet Metal Workers’ Intern. Ass’n v. Lynn, 488 U.S. 347 , 109 S.Ct. 639 , 102 L.Ed.2d 700 (1989). See also Tucker v. Bieber, 900 F.2d 973 (6th Cir.1990), and Cehaich v. International Union, United Auto., Aerospace and Agr. Implement Workers of America, 710 F.2d 234 (6th Cir.1983). The majority opinion notes that the Cehaich case is “similar to this one, but with one major distinction that makes a great deal of difference.” (Majority Opinion, p. 1502) That distinction is that Cehaich remained a member of the union. In this case, Pope did not. That fact has apparently convinced the majority that Pope’s case is clearly distinguishable from Cehaich , and that Pope is entitled to protection under the LMRDA because he was disciplined in a manner which affected his right to fully enjoy the rights and privileges of union membership. I disagree. I would find that Pope has no standing to bring a claim under the LMRDA. There are two distinct events which occurred in this case: (1) termination of Pope as appointed business representative, and (2) issuance to Pope of a membership withdrawal card. The first event — termination—is not actionable under Finnegan, supra, and its progeny. Nor is the second event actionable, because Pope was not “disciplined” within the meaning of section 411(a)(5) of the LMRDA when he was issued a withdrawal card. Section 411(a)(5), 29 U.S.C., which governs the procedures with which a labor organiza *1511 tion must comply before taking action against a member, 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. The term “member” is defined as follows in 29 U.S.C. § 402 (o): “Member” or “member in good standing,” when used in reference to a labor organization, includes any person who has fulfilled the requirements for membership in such organization, and who neither has voluntarily withdrawn from membership nor has been expelled or suspended from membership after appropriate proceedings consistent with lawful provisions of the constitution and bylaws of such organization. (emphasis added). Regarding withdrawal cards, Article XXI, section 1(b) of the OPEIU constitution and Article XX, section 3 of the Local 268 constitution contain the following provision: Whenever any member is not in the employment of any employer who bargains with any Local Union or the International Union, the Local Union shall issue a withdrawal card to such member.... A similar withdrawal provision was upheld by this court in Taylor v. Great Lakes Seamew’s Union, Local 5000, United Steelworkers of America, 701 F.2d 590 (6th Cir.1983), wherein the court said that “we see nothing ‘unreasonable’ about a rule which, in effect, guarantees that internal union affairs will be governed by those whose interests are most at stake — workers presently employed in the ... industry.” Id. at 592. The majority opinion holds that “[a]s a member of the union, Pope was entitled to notice and a hearing before being expelled from the union. There can be no doubt that the issuance of a withdrawal card is the equivalent of expulsion from the union.” (Majority Opinion, pp. 1508-09) I cannot agree. Pope was not “disciplined” within the meaning of section 411(a)(5) when he was issued a withdrawal card pursuant to the union constitution upon losing his sole claim to eligibility for membership. See Department of Labor v. Aluminum, Brick and Glass Workers Intern. Union, Local 200, 941 F.2d 1172, 1177 (11th Cir.1991) (union officials did not “discipline” members within the meaning of section 411(a)(5) by excluding them from election voting for failure to satisfy one of the preconditions for member-in-good-standing status). Section 402(o) allows a union to establish requirements for membership which members must continue to fulfill at all times. Since Pope did not, he lost his eligibility for membership, and the issuance to him of a withdrawal card did not constitute “discipline.” The majority opinion claims that the withdrawal card provision quoted above does not apply to any member who is employed by the union, based upon the following clause: “This subsection shall not apply to any member who holds office in, or is employed by, the International Union, any of its Local Unions or Councils....” That appears to be an incorrect construction. I believe a correct interpretation of that clause requires the addition of the words “while such member holds office or is so employed.” That this is the appropriate interpretation of this clause becomes apparent when the entire subsection is read: b. Whenever any member is not in the employment of any employer who bargains with any Local Union or the International Union, the Local Union shall issue a withdrawal card to such member, subject to the provisions of this section. This subsection shall not apply to any member who holds office in, or is employed by, the International Union, any of its Local Unions or Councils, any federation or council of labor organizations with whom the International Union or any of its Local Unions is affiliated, or any central body with whom any Local Union is affiliated, or to any member entitled to benefits under any health, welfare, or pension plan whose continued coverage is conditioned upon union membership, or to any member who, in the regular course of employment has become retired, or to any unemployed member *1512-1528 seeking dispatch to a union job through the facilities of the Local Union. Clearly, the withdrawal card provision is not punitive or disciplinary. It is a reasonable membership control mechanism to guarantee “that internal union affairs will be governed by those whose interests are most at stake — workers presently employed in the ... industry.” Taylor, 701 F.2d at 592. Since Pope was not “disciplined” within the meaning of section 411(a)(5) when he was issued a withdrawal card upon losing his sole claim to eligibility for membership, he has no legal ground for relief. Therefore, it was error for the district court to direct a verdict for Pope. For all of the foregoing reasons, I must dissent from the majority’s resolution of two of the eight issues. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9488865. Public record. Not legal advice.