CATHERINE D. PERRY, District Judge.
Defendant Local 1 of the International Brotherhood of Electrical Workers moves to dismiss Counts I and II of plaintiff Ronald Johnson's complaint.
Johnson was a member of Local 1 of the International Brotherhood of Electrical Workers until he was expelled in October of 2010. It is against Local 1's rules for a member to work for a contractor that does not have a contract with Local 1, unless the member has Local 1's permission. In March of 2010, after a period of unemployment,
Johnson provides little detail about his work for Building Systems. It is agreed that he performed work for pay at Building Systems, however, Johnson does not claim that he discussed union matters with anyone at Building Systems or that he attended any union related meetings.
After Johnson began his employment with Building Systems, another member of Local 1 filed an internal union charge against Johnson. Local 1 notified Johnson of the charge and provided him with a hearing date. Before the hearing, Johnson
Johnson's allegations are based on a series of letters that Local 1 had sent to non-contracting employers encouraging them to hire specific Local 1 members. In July and August of 2010, Local 1 sent letters to employers that had collective bargaining agreements with Local 57, including Building Systems, urging them to hire six specific members of Local 1, but Johnson was not one of the listed members. Johnson alleges that all six of the members recommended in these letters were white. Johnson is African-American.
Local 1 responded to Johnson's letter requesting a second extension by stating that its rules allowed it to discipline members for working for non-signatory contractors, such as Building Systems, and that three of the six members that Local 1 recommended for hire were African-American. However, Local 1 also assured Johnson that the "Executive Board has an open mind about this issue" that it would "fairly assess the facts, listen to Mr. Johnson," and that it had not prejudged the matter. Johnson does not claim that he attended the hearing. Local 1 voted to expel Johnson from the union and Johnson did not appeal the decision.
To survive a motion to dismiss, a complaint must contain enough factual detail to state a plausible claim for relief. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007); accord Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009). A claim is plausible if it allows a reviewing court "to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 129 S.Ct. at 1949. Only factual allegations, not legal conclusions, must be accepted as true. Id. at 1950; Twombly, 550 U.S. at 555, 127 S.Ct. 1955.
Local 1 seeks to dismiss Count I of Johnson's complaint by arguing that Johnson's employment with Building Systems was not protected speech or assembly under § 411. In Count I of Johnson's complaint, he claims that Local 1 violated 29 U.S.C. § 411(a)(2) by infringing his right to engage in protected union speech and assembly. Section § 411 guarantees that:
29 U.S.C. § 411(a)(2) (West 2011). The speech protected under § 411 is not as broad as the speech protected by the First Amendment. Hylla v. Transportation Communications Intern. Union, 536 F.3d 911, 917 (8th Cir. 2008). Instead, the "threshold inquiry in the LMRDA context is whether the speech at issue may be fairly characterized as a matter of union concern." Id. (italics in original). Section 41(a)(2) "is limited to speech that relates to the general interests of the union membership at large." Id. No cause of action arises under § 411(a)(2) for "speech that is of an entirely personal interest." Id. at 917-18. To determine whether speech or assembly is protected under § 411(a)(2), courts look to the "content, form, and context" of the activity. Id. at 918.
Johnson's employment at Building Systems is not protected speech or assembly under § 411(a)(2). Johnson does not allege that he discussed union matters or engaged in union activities at any point during his employment with Building Systems or that his employment with Building Systems included anything beyond his work for pay. As a result, Johnson's actions while employed at Building Systems were matters of entirely personal interest and therefore not protected by § 411(a)(2).
Johnson does not dispute this conclusion in his brief. Instead, Johnson argues that Local 1's disciplinary action against him could cause a "chilling effect" on protected speech and assembly in violation of § 411(a)(2). However, not every union disciplinary action has a chilling effect on union members' rights under § 411. See Hylla, 536 F.3d at 920. Instead, union disciplinary actions must be caused by, or in response to, some protected activity in order to create a danger of chilling protected activity. Id. Here, Johnson does not allege that he engaged in any activity protected activity under § 411(a)(2) and so there is no danger of a chilling effect in this case.
Johnson also argues that Local 1's rule barring him from working for Building Systems is unreasonable. In support, he cites the protections listed in § 411(a)(5), which prohibit a union from taking adverse action against a member without following certain procedures. See 29 U.S.C. § 411(a)(5). Section 411(a)(5) requires that, before disciplining a member, the member must be "(A) served with written specific charges; (B) given a reasonable time to prepare his defense; (C) afforded a full and fair hearing." 29 U.S.C. § 411(a)(5).
However, § 411(a)(5) is not relevant to Local 1's motion to dismiss. First, even if Local 1's rule against working for non-signatory contractors were unreasonable, Johnson's actions are still not protected speech or assembly under § 411(a)(2). Second, Johnson does not assert a violation of § 411(a)(5) in his complaint and so a discussion of whether Local 1 violated this section need not be discussed. Third, even if he had asserted a claim under § 411(a)(5), Johnson does not allege that any of the elements listed in § 411(a)(5) are, in fact, true in this case. Instead, the documents that Johnson provided with his brief indicate that the union gave Johnson notice of the charges against him, allowed him time to prepare a defense, and afforded him a full and fair hearing that he chose not to attend.
In addition, even if Johnson's claim under § 411(a)(2) did not fail on the merits, he would be barred from asserting it in this Court because he has failed to
A union member may be excused from exhausting internal remedies if they can show that the internal remedies would be futile or inadequate. McPhetridge, 578 F.3d at 889. When determining whether seeking internal remedies would be futile, courts consider:
McPhetridge v. IBEW, Local Union No. 53, 578 F.3d 886, 889-90 (8th Cir. 2009) (internal quotations omitted). In addition, "[a] showing of hostility at each level of the appeal process is necessary to establish this exception to the exhaustion requirement." McPhetridge v. IBEW, Local Union No. 53, 578 F.3d 886, 890 (8th Cir. 2009).
Johnson has not alleged hostility at each level of the appeal process. Instead, he only alleges facts relating to the initial hearing and so Johnson's claim is barred by his failure to exhaust available union remedies. In addition, Johnson has not alleged sufficient facts to support a claim of hostility at the initial hearing level. Johnson's claim of hostility relies entirely on Local 1's letter in response to his second request for an extension. However, this letter does not demonstrate hostility or constitute pre-judgment of the issues. Local 1's response is limited to stating the fact that union rules allow it to discipline its members and that Johnson's claim that all of the members that Local 1 recommended for hire were white was incorrect. However, even on these points, the letter carefully and repeatedly stated that Local 1 had not pre-judged the issues and that Johnson would be granted a full and fair hearing. This letter, without any other allegations of hostility, is not sufficient to support a claim that Johnson had no hope of obtaining a fair hearing.
Local 1 seeks to dismiss Count II of Johnson's complaint. In Count II, Johnson claims that Local 1 discriminated
Johnson has pled sufficient facts to state a claim under § 1981. Local 1 does not dispute that Johnson, an African-American, is a member of a protected class and Johnson has pled facts indicating that Local 1 intended to discriminate based on race. According to Johnson's complaint, Local 1 punished him for actions for which it did not punish white members, it recommended white members for employment for which it did not recommend African-American members, including Johnson, and punished him for working for an African-American contractor when it did not punish other members who worked for white non-signatory contractors. This satisfies Johnson's requirement to provide a short and plain statement demonstrating the second element of his claim—discriminatory intent.
With respect to the third element, Johnson has sufficiently alleged interference with his right to contract. Under § 1981 "the term `make and enforce contracts' includes the making, performance, modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship." 42 U.S.C. § 1981. "The statute protects the would-be contractor along with those who already have made contracts, and it thus applies to discrimination that blocks the creation of a contractual relationship that does not yet exist." Gregory v. Dillard's, Inc., 565 F.3d 464, 469 (8th Cir. 2009) (internal citations and quotations omitted). Courts have recognized that a union's interference with a member's ability to obtain employment by refusing to refer the member to union employers is within the prohibition of § 1981. See Daniels v. Pipefitters' Ass'n Local Union No. 597, 945 F.2d 906, 914-15 (7th Cir. 1991).
Here, Johnson alleges that Local 1 refused to refer him to employers because of his race and then expelled him from the union, also because of his race, which prevents him from obtaining employment with Local 1 contractors. This is sufficient to state a claim that Local 1 interfered with Johnson's right to contract. As a result, Johnson has alleged a prima facie case under § 1981.
Local 1 also argues that Johnson's claim under § 1981 is prohibited because Johnson failed to exhaust all available internal grievance procedures. Unlike Johnson's claims under § 411, there is no statute
In support of its argument that exhaustion is required, Local 1 relies on 14 Penn Plaza LLC v. Pyett, 556 U.S. 247, 129 S.Ct. 1456, 173 L.Ed.2d 398 (2009).
It is unclear whether it is appropriate to apply the rule in Pyett to this case.