Kay Rollison v. Hotel, Motel, Restaurant, and Construction Camp Employees, Local 879, Afl-Cio, Raymond J. Donovan, Secretary of Labor, U. S. Department of Labor, Kay Rollison, in Intervention v. Hotel, Motel, Restaurant, and Construction Camp Employees, Local 879, Afl-Cio, Hotel and Restaurant Employees, and Bartenders International Union Afl-Cio-Cls

Citation: 677 F.2d 741Docket: 80-3498

Court: Court of Appeals for the Ninth Circuit; May 18, 1982; Federal Appellate Court

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Kay Rollison, the plaintiff-appellee, was an outspoken critic of Local 879's leadership and was elected vice-president in March 1977. Following her election, she filed complaints regarding alleged violations related to the union's election process, which led to the International President ordering a new election. In response, four paid staff members of Local 879 charged Rollison with several offenses, including using obscene language, making threats against staff, holding unauthorized meetings, and disseminating derogatory information about union officers.

After hearings, a trial board found Rollison in violation of the International Constitution's provisions regarding member conduct. The board recommended a one-year suspension from active membership, required her to pay $850 for the hearing costs, and barred her from attending meetings for one year, although she retained voting rights and could use the union hall for job-related purposes, provided she paid dues and complied with the Local's regulations.

A Local 879 membership meeting ratified a trial board's findings regarding Kay Rollison, who appealed a disciplinary action to the International President on June 16, 1977. Subsequently, on June 22, 1977, Rollison initiated a free speech case seeking injunctive relief against her suspension from candidacy in the upcoming election. The trial court issued a temporary restraining order on June 24, prohibiting the enforcement of the Local's disciplinary action and requiring notice to members that Rollison was a qualified candidate for the July 12, 1977, election. 

After being elected Financial Secretary/Business Agent on July 12, 1977, Rollison faced election protests from defeated candidates, claiming the court-ordered notice implied Local 879's endorsement of her candidacy. On July 13, she protested the Local's refusal to install her. The International President later reduced her penalty to a $50 fine, retroactively allowing her candidacy. However, on August 19, 1977, Rollison's protests regarding her election were denied, leading her to file a complaint with the Secretary of Labor on August 24, 1977. The Secretary found probable cause for a violation of Title IV of the LMRDA and filed a case to compel Rollison's installation on October 21, 1977.

Local 879 sought summary judgment in the free speech case, claiming Rollison had not exhausted internal remedies. The trial court stayed this case on December 28, 1977, directing Rollison to exhaust those remedies. She appealed the International President's ruling on January 11, 1978, but the appeal was denied as untimely on March 10, 1978. The trial court ultimately granted the Secretary's motion for summary judgment in the election case on March 10, 1978, mandating Rollison's installation on March 13, 1978.

On March 21, 1980, Rollison sought partial summary judgment regarding the legality of the Local's discipline and the Local's liability for her salary from July 12, 1977, to March 13, 1978. The trial court granted her motions in 1980, awarding her $6,066.50 in attorney's fees in the free speech case and $7,935.11 in back pay and $4,091.02 in attorney's fees in the election action. Appeals followed these judgments.

The issues raised in the case include: 

1. The jurisdiction of the district court in the free speech case.
2. The requirement of sufficient exhaustion of internal union remedies.
3. The propriety of granting summary judgment by the district court.
4. Whether the district court's order on June 24, 1977, violated 29 U.S.C. 481(g).
5. The appropriateness of the awards for back pay, attorney's fees, and costs.

Rollison's free speech case is brought under Title I of the LMRDA, specifically 29 U.S.C. 411, which pertains to the Labor Bill of Rights. Rollison contends that her claims, which include challenges to union disciplinary actions, also involve Title IV matters (denial of her right to hold union office) that must be pursued through the Secretary of Labor as per Title IV procedures. However, the court finds that the overlap between Title I and Title IV is incidental, affirming that Rollison's free speech claim is fundamentally based on Title I, aligning more closely with the precedent set in Kupau v. Yamamoto than Calhoon v. Harvey.

Regarding the exhaustion of remedies, 29 U.S.C. 411(a)(4) allows the requirement for union members to exhaust internal procedures before seeking legal recourse, but this is at the court's discretion. The court found no abuse of discretion in allowing the case to proceed despite Rollison's claims of not exhausting intra-union remedies.

On the issue of summary judgment, the court determined there was no genuine issue of material fact regarding Rollison's disciplinary actions, as she did not dispute the facts of her conduct. Instead, she argued her actions were protected under the Labor Bill of Rights, presenting a legal question that warranted summary judgment. The district court concluded that Rollison's activities were lawful expressions and could not be punished by the union.

29 U.S.C. 411(a)(2) protects union members' conduct, regardless of its offensiveness to others. Notable cases reaffirm this protection, including Stachan v. Weber and Mallick v. International Bro. of Electrical Workers. The Sixth Circuit referenced Senator McClellan's explanation of the statute, emphasizing the right of union members to assemble and discuss union matters without punishment. Rollison's alleged "unauthorized meetings" do not show any impairment of the union's functioning. The Boilermakers v. Hardeman case focused on fair hearings under 411(a)(5) and did not address free speech, which is relevant here since Rollison's actions, though deemed offensive, did not involve physical aggression.

The document addresses whether a court-ordered letter sent to union members violated 29 U.S.C. 481(g), which prohibits union funds from promoting candidacies during elections. The district court ruled that the letter's issuance under court order, despite union objections, did not breach this statute. Appellants argue that the court lacked authority for such an order and that the letter promoted Rollison’s candidacy. In contrast, appellees contend that 481(g) does not apply in this context, asserting the court's jurisdiction and classifying the letter as a "notice" rather than a promotional tool. Previous cases cited by appellants involved voluntary union actions, unlike the involuntary nature of the letter in this instance, which aligns with the purpose of 29 U.S.C. 401(c) to prevent improper practices within labor organizations.

The court found that the disputed court order and letter to union members stemmed from improper actions by the appellants and affirmed the lower court's ruling that complying with a court order does not violate 29 U.S.C. 481(g). Such compliance serves as a protective measure against bad faith by union officials, upholding the act's intent to prevent improper labor practices. The letter was created and submitted by the appellants to inform Local 879 members that disciplinary actions did not disqualify Rollison from running for Financial Secretary/Business Agent. This communication was necessary to address misconceptions among union members regarding eligibility for the position, highlighted by the union's prior disciplinary actions against Rollison.

The trial court's June 24, 1977, order aimed to correct misleading information previously disseminated by the union rather than to support Rollison's candidacy or exert pressure on union members. Therefore, the court concluded that there was no breach of 29 U.S.C. 481(g). 

Rollison was awarded back pay of $7,935.11, along with attorney's fees and costs totaling $10,157.52 from the election case and a free speech case, acknowledging her significant role in benefiting both her and the union. This reasoning aligns with the Supreme Court's ruling in Hall v. Cole, which upheld attorney's fees for a union member who defended his free speech rights, emphasizing the broader benefit to the union and its members when individual rights are vindicated.

In Ross v. International Brotherhood of Electric Workers, the Ninth Circuit identified two grounds for awarding attorney's fees: 1) bad faith by the opposing party and 2) the litigation providing a valuable service to the union and its members. The district court found the latter applicable, determining that Rollison's successful election after securing a court order clarifying her eligibility enhanced the value of her litigation efforts. The court emphasized that attorney fees should not be reduced based on unsuccessful aspects of a case unless they were frivolous or made in bad faith. Similar standards for calculating fees apply under Title VII and LMRDA, following precedents like Kerr v. Screen Extras Guild. The court recognized that intervenors who assist the Secretary of Labor in litigation can confer benefits on union membership, as established in Brennan and Usery cases. The court also noted that the appellants' reliance on Trbovich was misplaced, as it supports the notion of awarding fees to intervenors when their contributions are substantial. Additionally, the court upheld the district court's back pay award to Rollison, which accounted for the salary difference between her union position and her job as a kitchen helper during the election period. The court dismissed the appellants' challenge to the back pay calculation, affirming the district court's determination of their responsibility for Rollison's exclusion from office.

The court noted that the appellants failed to contest Rollison's affidavit, which indicated that the $150 weekly payment was part of her salary and not contingent on actual expenses incurred. As there was no evidence in the record to contradict this assertion, the district court's approval of back pay in that amount was deemed correct. Additionally, the union cited Hall v. Cole to argue that paying attorney fees could hinder its operations. However, the district judge, after reviewing the union's financial affidavit, determined that there was insufficient evidence to suggest that the payment would threaten the union's stability. Consequently, this finding will not be challenged. Other arguments presented by the appellants were deemed unworthy of further discussion. The court affirmed the district court's judgments.