Savage et al v. Tweedy et al

Filing 193

OPINION & ORDER: Defendants' motion to dismiss 103 is GRANTED. See 10-page opinion & order attached. Signed on 8/11/2013 by Judge Marco A. Hernandez. (mr)

Savage et al v. Tweedy et al

Doc. 193

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

PETER SAVAGE, CLIFF PUCKETT,
V. MICHAEL WALLACE, and
GABRIEL TRIPLETT,
Plaintiffs,
No. 3:12-cv-01317-HZ
OPINION & ORDER
v.
DOUG TWEEDY, PACIFIC NORTHWEST
REGIONAL COUNCIL OF CARPENTERS,
and UNITED BROTHERHOOD OF
CARPENTERS AND JOINERS OF AMERICA,
Defendants.
Catherine A. Highet
PORTLAND LAW COLLECTIVES, LLP
1130 SW Morrison, Suite 407
Portland, OR 97205
Attorney for Plaintiff
Daniel M. Shanley
James L. Francesconi
Matthew E. Malmsheimer
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Dockets.Justia.com

HAGLUND KELLEY HORNGREN JONES & WILDER, LLP
200 SW Market Street, Suite 1777
Portland, OR 97201
Attorneys for Doug Tweedy and Northwest Pacific Regional Council of Carpenters
Brian F. Quinn
DECARLO, CONNOR & SHANLEY PC
101 Constitution Avenue, NW
Washington, DC 20001
Daniel M. Shanley
James L. Francesconi
Matthew E. Malmsheimer
HAGLUND KELLEY HORNGREN JONES & WILDER, LLP
200 SW Market Street, Suite 1777
Portland, OR 97201
Attorneys for United Brotherhood of Carpenters and Joiners of America
HERNANDEZ, District Judge:
Plaintiffs Peter Savage, Cliff Puckett, V., Michael Wallace, and Gabriel Triplett filed a
Complaint on July 19, 2012, against the United Brotherhood of Carpenters and Joiners of
America (“UBC”); the UBC’s subordinate body–the Pacific Northwest Regional Council of
Carpenters (“Regional Council”); and Doug Tweedy, the Regional Council’s Executive
Secretary Treasurer. The Complaint alleged violations of Plaintiffs’ free speech rights and due
process rights under the Labor-Management Reporting and Disclosure Act of 1959 (“LMRDA”).
Compl., ¶¶ 37-43. Specifically, Plaintiffs alleged violations under the LMRDA based on their
removal from elected office within the Carpenters union, deprivation of their membership
privileges, and the fines imposed on them by Defendants.
On December 13, 2012, I issued an Opinion & Order dismissing Plaintiffs’ claims
against the UBC because they failed to allege facts supporting their claim that the UBC was
liable for ratifying the penalties imposed by Local 156 of the United Brotherhood of Carpenters

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and Joiners of America (“Local 156”) and adopted by the Regional Council. After giving
Plaintiffs leave to amend their Complaint, Plaintiffs filed a First Amended Complaint. The First
Amended Complaint re-alleges the claims in the Complaint and seeks an additional claim that
Section 51A(1) of the UBC Constitution, which precludes members from causing dissention
among members, is facially invalid and therefore, void.
Now before me is Defendants’ second motion to dismiss (dkt. #103), which seeks to
dismiss Plaintiffs’ ratification claim against the UBC and Plaintiffs’ new claim that Section
51A(1) of the UBC Constitution is facially invalid. For the reasons that follow, Defendants’
motion is granted.
STANDARD
In considering a Rule 12(b)(6) motion, the court must “accept as true all of the factual
allegations contained in the complaint” and may dismiss the case “only where there is no
cognizable legal theory” or there is an absence of “sufficient factual matter to state a facially
plausible claim to relief.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (citation omitted); Shroyer
v. New Cingular Wireless Servs., Inc., 622 F.3d 1035, 1041 (9th Cir. 2010) (citing Ashcroft v.
Iqbal, 556 U.S. 662, 677-78 (2009)).
A claim has facial plausibility when a plaintiff “pleads factual content that allows the
court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”
Iqbal, 556 U.S. at 678 (citation omitted). The facts alleged must demonstrate “more than labels
and conclusions, and a formulaic recitation of a cause of action’s elements will not do.” Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555 (2007). “Threadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678
(citation omitted). “[C]onclusory allegations and unwarranted inferences are insufficient to

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defeat a motion to dismiss.” Oklevueha Native Am. Church of Haw., Inc. v. Holder, 676 F.3d
829, 834 (9th Cir. 2012) (citation omitted). “The plausibility standard is not akin to a probability
requirement, but it asks for more than a sheer possibility that a defendant has acted unlawfully. . .
. Where a complaint pleads facts that are merely consistent with a defendant’s liability, it stops
short of the line between possibility and plausibility of entitlement to relief.” Iqbal, 556 U.S. at
678 (citations and internal quotation marks omitted).
DISCUSSION
I. Claims Against the UBC
Plaintiffs contend that their allegations make it plausible that the UBC is liable for
ratifying Local 156’s actions and therefore their claims against the UBC should not be dismissed.
I disagree.
An international union such as the UBC “incur[s] liability on a theory of ratification only
if it affirm[s] the Local’s actions ‘with full knowledge that it was part of an overall scheme to
suppress dissent in violation of the LMRDA.’” Moore v. Local Union 569 of Int’l Bhd. of Elec.
Workers, 989 F.2d 1534, 1543 (9th Cir. 1993) (citing Rodonich v. House Wreckers Union Local
95 of Laborers’ Int’l Union, 817 F.2d 967, 973 (2d Cir. 1987)); see also Rodonich, 817 F.2d at
973 (“success of plaintiffs’ LMRDA claims depends on proof that their retaliatory discharge
from office was part of an overall scheme to suppress dissent within the union”). Here, Plaintiffs
allege that the “Trial Committee found [P]laintiffs . . . guilty and recommended a penalty of
removal from office, suspension of membership privileges . . ., and a monetary fine of
$1,000.00.” First Am. Compl., ¶ 28 (internal quotation marks omitted). Plaintiffs allege that the
“Regional Council adopted all recommended penalties” and that the “[UBC’s] Appeals Board
denied [P]laintiffs’ appeal”. Id., ¶¶ 31-33. Plaintiffs allege that the UBC “had full knowledge

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that the discipline described . . . was part of an overall scheme to take actions in violation of the
LMRDA.” Id., ¶ 35. These allegations do not support the inference that the UBC ratified Local
156’s actions. Rather, they simply establish that the UBC denied Plaintiffs’ appeal imposed by
Local 156 and adopted by the Regional Council. To the extent Plaintiffs allege that the UBC
acted with “full knowledge” that their discipline “was part of an overall scheme to take actions in
violation of the LMRDA”, I need not assume such allegation as true as it amounts to a
conclusion of law and an unwarranted inference unsupported by any factual allegations. See
Epstein v. Wash. Energy Co., 83 F.3d 1136, 1140 (9th Cir. 1996) (“conclusory allegations of law
and unwarranted inferences are insufficient to defeat a motion to dismiss for failure to state a
claim”) (citation omitted).
The other allegations in the First Amended Complaint also fail to support Plaintiffs’
ratification theory. Plaintiffs rely on their allegations that “Defendants encouraged and assisted”
the charging parties and that the UBC’s District Vice President, Mike Draper, “intentionally
enhanced the illegal effect of defendants’ discipline on plaintiffs’ and other members’ protected
activity.” First Am. Compl., ¶¶ 24, 37. Plaintiffs, however, allege no facts showing how the
UBC “encouraged and assisted” the charging parties or how Draper “intentionally enhanced the
illegal effect of defendants’ discipline”. Plaintiffs’ conclusory allegations simply amount to bald
allegations and unwarranted inferences and as such, do not support their ratification theory
against the UBC.
Plaintiffs also allege that Draper threatened that if the party Plaintiffs support–the
Reform Party–gained control of the Regional Council, the UBC would put the Regional Council
under trusteeship so fast that their heads would spin. Id., ¶¶ 37-38. They also allege that Draper
publicly mocked and criticized the Reform Party and its supporters, that Draper made his

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mockery at an official training for election delegates, and that Plaintiffs provided the UBC with
evidence of how their discipline violated the LMRDA. Id., ¶¶ 13, 36-38. In addition, Plaintiffs
allege that the UBC vacated the first Local 156 election in which the Reform Party had prevailed
without providing candidates an opportunity to be heard and that “[t]he penalty recommended
against plaintiffs was unprecedented in its severity . . . [and] were far more severe than those
recommended against participants who held no elected office.” Id., ¶¶ 20, 31. These allegations,
even when assumed to be true, simply do not support an inference that the UBC ratified Local
156’s actions in violation of the LMRDA. Notably lacking from the First Amended Complaint
are any allegations showing that Draper was involved with the UBC Appeals Board’s denial of
Plaintiffs’ appeal or that Draper influenced the UBC Appeals Board’s decision. Also missing are
any facts raising an inference that the UBC affirmed Local 156’s actions with full knowledge
that it was part of an overall scheme to suppress Plaintiffs’ dissent as required under Moore, 989
F.2d at 1543 and Rodonich, 817 F.2d at 973. Plaintiffs’ allegations merely show that the UBC’s
Appeals Board denied Plaintiffs’ appeal of the Regional Council’s decision. First Am. Compl.,
¶¶ 31-33.
In sum, even when assuming Plaintiffs’ factual allegations as true and construing them in
the light most favorable to Plaintiffs, the facts do not support an inference that the UBC had
knowledge that it was acting as part of an overall scheme to suppress Plaintiffs’ dissent in
violation of the LMRDA. Defendants’ motion to dismiss Plaintiffs’ ratification claim against the
UBC is granted.
II. Plaintiffs’ Facial Challenge to Section 51A(1) of the UBC Constitution
Plaintiffs’ new claim challenges Section 51A(1) of the UBC Constitution precluding
members from “[c]ausing dissension among the members of the United Brotherhood” on the

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basis that it is facially invalid and seeks an order declaring Section 51A(1) void as a matter of
law.1 Shanley Decl., Ex. B, p. 3. Plaintiffs’ arguments miss the mark.
Section 411 of the LMRDA governs freedom of speech and assembly in unions. That
section provides:
Every member of any labor organization shall have the right to meet and assemble
freely with other members; and to express any views, arguments, or opinions; and
to express at meetings of the labor organization his views, upon candidates in an
election of the labor organization or upon any business properly before the
meeting, subject to the organization’s established and reasonable rules pertaining
to the conduct of meetings . . .
29 U.S.C. § 411(a)(2).
“Section 411(a)(2) does not provide rights identical in scope to those provided by the
First Amendment, however. Unions may adopt and enforce rules that interfere with the interests
protected by § 411(a)(2) so long as the rules are reasonable.” Kofoed v. Int’l Bhd. of Elec.
Workers, Local 48, 237 F.3d 1001, 1005 (9th Cir. 2001) (citing United Steelworkers of Am.,
AFL-CIO-CLC v. Sadlowski, 457 U.S. 102, 109, 111 (1982)). The Ninth Circuit has set forth
the test courts must follow when determining whether a union rule is reasonable under the
LMRDA, stating, “Under Sadlowski, a court must first consider whether the [union’s] rule
interferes with an interest protected by the first part of [§ 411(a)(2)] . . . [and must] then
determine[] whether the rule is reasonable.” Id. (internal quotation marks and citations omitted).
“The critical question is whether a rule that partially interferes with a protected interest is
nevertheless reasonably related to the protection of the organization as an institution.” Id.
Here, Plaintiffs do not expressly argue that Section 51A(1) of the UBC Constitution is
unreasonable. Rather, they request that this Court apply the vagueness and overbreadth doctrines
of the First Amendment to Section 51A(1) and seek an order declaring that Section 51A(1) is
1

Plaintiffs were charged with, among other things, violating Section 51A(1) of the UBC
Constitution.

7 - OPINION & ORDER

facially invalid. Plaintiffs, however, cite no binding precedent supporting their position that the
vagueness and overbreadth doctrines under the First Amendment apply to union rules.
Furthermore, the cases Plaintiffs cite do not persuade me to conclude that they may challenge a
union rule as facially invalid. For example, in Knight v. International Longshoremen’s Ass’n.,
457 F.3d 331, 336-37 (3d Cir. 2006), the district court abstained from considering whether the
union’s rule precluding the use of the union’s logo violated members’ free speech rights under §
411(a)(2). The Third Circuit held that the district court erred by abstaining because “[a]bstention
is generally inappropriate in cases involving facial challenges to laws or provisions that curtail
free speech” and because “[g]enerally, the repeated use of a controversial provision will preclude
abstention by courts.” Knight, 457 F.3d at 338 (citation omitted). Unlike Knight, Plaintiffs do
not allege that Defendants repeatedly used Section 51A(1) of the UBC Constitution to chill the
speech of union members. Moreover, unlike Knight, Defendants do not ask me to abstain from
addressing Plaintiffs’ facial challenge. Rather, they explicitly ask that I address the issue.
Plaintiffs also rely on Bishop v. International Ass’n of Bridge, Structural, Ornamental
and Reinforcing Iron Workers, 310 F. Supp. 2d 33, 40-41 (D.C. 2004), where the court
concluded that union provisions prohibiting the discussion of union matters with outsiders was
overbroad. Although that case favors Plaintiffs’ position, I do not find it persuasive in light of
Quigley v. Giblin, 569 F.3d 449 (D.C. Cir. 2009), a more recent opinion by the United States
Court of Appeals for the District of Columbia Circuit. In Quigley, 569 F.3d at 457-58, the
United States Court of Appeals for the District of Columbia Circuit stated that the court was “not
convinced that a union member c[ould] bring a vagueness challenge to a union rule” because
“the Supreme Court [had] rejected the notion that the scope of [section] 101(a)(2) [is] identical to
the scope of the First Amendment . . . .” (Citations and internal quotation marks omitted).

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Although Quigley addressed a vagueness challenge to union rules–not an overbreadth challenge
as here, I conclude the same reasoning applies. As stated in Sadlowski, 457 U.S. at 111 and
Kofoed, 237 F.3d at 1005, Congress did not intend § 411(a)(2) to protect union members to the
same extent as the First Amendment. Plaintiffs provide no compelling reason explaining why a
vagueness challenge to a union rule under § 411(a)(2) warrants a different analysis than an
overbreadth challenge to the same union rule.
More important, as stated above, the Ninth Circuit has expressly set forth the sequential
steps for analyzing whether a union rule is reasonable under the LMRDA. A court must first
consider whether a union’s rule interferes with an interest protected under § 411(a)(2), and must
then determine whether the rule is reasonable, including whether the “rule that partially interferes
with a protected interest is nevertheless reasonably related to the protection of the organization as
an institution.” Kofoed, 237 F.3d 1005. Here, Plaintiffs’ First Amended Complaint merely
alleges that a “reasonable union member reading [Section 51A(1)] would understand it to
prohibit a wide array of LMRDA-protected activities” and that “[t]he existence of [Section
51A(1)] unreasonably chills LMRDA-protected activities.” First Am. Compl., ¶¶ 50-51. Even
when assuming Plaintiffs’ alleged facts as true and considering them in the light most favorable
to Plaintiffs, they do not satisfy the elements of the rule set forth in Kofoed. Because Plaintiffs
fail to adequately plead facts establishing that Section 51A(1) violates the LMRDA, their claim
must be dismissed.
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CONCLUSION
Based on the reasons above, Defendants’ motion to dismiss (doc. #103) is GRANTED.
IT IS SO ORDERED.
Dated this _____ day of __________, 2013.

___________________________
MARCO A. HERNANDEZ
United States District Judge

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