Martin et al v. Transport Workers Union of America, Local 556

Filing 49

MEMORANDUM OPINION AND ORDER granting Defendant TWU Local 556's 23 Motion for Summary Judgment, denying Plaintiffs 26 Motion for Summary Judgment, denying as moot Defendant TWU Local 556's 37 Motion to Strike. (Ordered by Judge Ed Kinkeade on 8/29/2016) (aaa)

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
KELLEY MARTIN, PAMELA
STARZINGER, DEBORAH FISHER
and JEANNA JACKSON,
Plaintiffs,
v.
TRANSPORT WORKERS UNION
OF AMERICA, LOCAL 556,
Defendant.

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CIVIL ACTION NO.
3:15-CV-00556-K

MEMORANDUM OPINION AND ORDER
Before the Court are Defendant Transport Workers Union of America, Local
556’s (“Local 556”) Motion for Summary Judgment (Doc. No. 23), Plaintiffs’
Motion for Partial Summary Judgment (Doc. No. 26), and Defendant TWU Local
556’s Motion to Strike and Brief in Support Thereof (Doc. No. 37). The Court
carefully reviewed and considered the Motions, the parties’ briefing, the relevant
evidence, and the applicable authority. For the reasons detailed below, the Court
GRANTS Defendant TWU Local 556’s Motion for Summary Judgment, DENIES
Plaintiffs’ Motion for Partial Summary Judgment, and accordingly DENIES
Defendant TWU Local 556’s Motion to Strike as moot.

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I.

Factual and Procedural Background
Plaintiffs are Southwest Airlines flight attendants. Plaintiffs Kelley Martin and

Pamela Starzinger are and have been at all times relevant to this case members in
good standing of Local 556. Plaintiffs Deborah Fisher and Jeanna Jackson are
members in good standing of Local 556, but they temporarily resigned their union
membership in 2013. Defendant Local 556 is a labor organization and the local
union of the Transport Workers Union of America (“TWU”). Defendant is Plaintiffs’
exclusive bargaining representative pursuant to the terms of the Railway Labor Act
(“RLA”).
In spring 2013, Local 556 removed three of its officers from office. That
matter is subject of litigation in a separate case in this Court (Stacy Martin, et al. v.
Local 556, Transportation Workers of America, Case No. 3:14-CV-00500-D) and in state
court (Transport Workers Union, Local 556 v. Stacy Martin, Case No. DC-13-13347,
Appellate Case No. 05-15-00796-CV).
After the officers’ removal, more than ninety of Local 556’s twelve thousand
members withdrew from union membership as Agency Fee Objectors (“AFOs”). At
the time, Plaintiffs Jackson and Fisher were among the members who withdrew. AFOs
may not attend union meetings or participate in union elections but are nevertheless
represented by Local 556. They cease to be union members, but also pay lower
monthly dues to the union.

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During a November 2013, meeting the Executive Board of Local 556
addressed AFOs’ status in the union. At that meeting, the Executive Board decided
to interpret Article III(b) of the Local 556 Bylaws. In doing so, the Executive Board
merely clarified the language of the Article III(b) and in no way altered its language.
Adopted in January 1, 2012, Article III(b) provides that a prospective member must
pay a one hundred dollar initiation fee in order to be admitted to Local 556’s
membership. The Executive Board interpreted Article III(b) as a requirement that any
eligible flight attendant who seeks to become a member of Local 556 must pay the
initiation fee.
In 2014, as the union officer election cycle approached, a few AFO flight
attendants inquired about becoming members of Local 556. Brett Nevarez, Local
556’s Second Vice President, told the AFO flight attendants that they needed to fill
out paperwork and pay the required initiation fee. Plaintiffs Martin and Starzinger
were still Local 556 members and were unaffected by this process. Plaintiffs Jackson
and Fisher sought to rejoin the union. Each objected to payment of the initiation fee.
Jackson said she felt that the initiation fee was retaliation for opting out of the
union. Fisher testified that the initiation fee appeared to be retaliation for her opting
out of the union. The only exemptions from the initiation fee for a non-member
seeking membership in Local 556 are found in the TWU International Constitution,
Article XIII, §§8 and 9(a). These exemptions did not apply to the Plaintiff AFOs.

3

All Plaintiffs appealed to the TWU International. Their appeals were rejected.
TWU International’s Committee of Appeals stated:
Employees represented by TWU can elect to be non-members . . . Once
a member chooses to resign their membership in TWU, they still remain
eligible for future membership. Local 556’s current bylaws require an
initiation fee for employees seeking membership in the TWU. The
Committee on Appeals finds that the Local did not violate the
International Constitution or the Local 556 Bylaws by requiring former
members who have resigned their TWU membership to have to pay the
initiation fee as outlined in the current Local 556 Bylaws to become a
member of the TWU.
Plaintiffs filed this lawsuit after Plaintiffs Jackson and Fisher paid the initiation
fee under protest and rejoined the union.
II.

Plaintiffs’ Claims
Generally, Plaintiffs’ claims arise under the Labor Management Reporting and

Disclosure Act (“LMRDA”), 29 U.S.C. §§ 411(a)(3)(A), 411(a)(1), 411(a)(2), 529,
and 412. Plaintiffs contend that their claims also arise under the Railway Labor Act,
45 U.S.C. §151, and the First and Fifth Amendments to the United States
Constitution.
29 U.S.C. § 411(a)(3)(A) provides members of Local 556 in good standing the
statutory right to a secret-ballot vote on any increase to initiation fees and rates of
dues. Plaintiffs Martin and Starzinger claim that they were not allowed to vote by
secret ballot on what they claim was a change in Local 556’s bylaws. They assert that
this alleged change to Article III(b) increased the initiation fee for flight attendant
membership in Local 556.
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Plaintiffs Jackson and Fisher claim that having to pay a one hundred dollar
initiation fee to rejoin Local 556 was retaliation for their exercise of their First and
Fifth Amendment Constitutional rights and their statutory rights under the RLA and
the LMRDA. According to Jackson and Fisher, the Executive Board’s interpretation
of Article III(b) penalized them for exercising their right to free speech and
association by withdrawing from Local 556’s membership. They also claim that the
Executive Board’s initiation fee interpretation targeted objecting returning members.
Finally, Plaintiffs Fisher and Jackson allege that Defendant has breached its duty of
fair representation by engaging in conduct that was arbitrary, discriminatory, or in
bad faith by imposing what they claim was an additional one hundred dollar
initiation fee on them when they sought to rejoin the union.
Defendant does not dispute that Plaintiffs state claims under the LMRDA, but
Defendant argues that those claims lack merit. Defendant also argues that Plaintiffs
fail to properly raise a provision of the RLA as a basis for their claims. Further,
Defendant denies that any claims arise under the First or Fifth Amendments to the
Constitution of the United States because no “acts under color of law” are asserted
and there is no requisite state action to confer jurisdiction over these claims.
Defendant also denies any conduct which would violate the statutes and duties
alleged by Plaintiffs.
III.

Defendant’s Motion for Summary Judgment

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Defendant moves for summary judgment on all three of Plaintiffs’ claims.
Specifically, Defendant argues that Local 556 did not increase initiation fees and
that, accordingly, the requirements of 29 U.S.C. § 411(a)(3)(A) do not apply to the
Executive Board’s actions. Second, Defendant contends that it did not impose the
initiation fee on non-member objectors seeking to rejoin Local 556 in retaliation for
taking non-member objector status. Third, Defendant denies that it took any action
toward Plaintiffs that violated its duty of fair representation, and denies specifically
that it took any action toward Plaintiffs that was arbitrary, discriminatory, or
committed act in bad faith.
The Court agrees with Defendant. Defendant has shown through pleadings,
affidavits, and other summary judgment evidence that no genuine issue of material
fact exists. Defendant has shown that Local 556’s Executive Board did not increase
Local 556’s initiation fee, it did not take an adverse or retaliatory action towards
Plaintiffs, and that its conduct was not arbitrary, discriminatory, or in bad faith.
Plaintiffs have not satisfied their burden as nonmovants to show that genuine issues
of material fact exists for trial. Accordingly, Defendant is entitled to judgment as a
matter of law.
a. Summary Judgment Standard
Summary judgment is

appropriate

when

the

pleadings,

affidavits,

and

other summary judgment evidence show that no genuine issue of material fact exists
and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c).
6

The moving party bears the initial burden of showing by reference to materials on file
that there is no genuine issue of material fact for trial. See Celotex Corp. v. Catrett, 477
U.S. 317, 322 (1986).
The nonmovant must then go “beyond the pleadings” and introduce
competent evidence like affidavits, depositions, admissions, to establish “specific facts
showing there is a genuine issue for trial.” Celotex, 477 U.S. at 324. The Court must
view all evidence and reasonable inferences in the light most favorable to the
nonmovant and determine whether a fair-minded jury could return a verdict for the
plaintiff on the evidence presented. United States v. Die bold, Inc., 369 U.S. 654, 655
(1962); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986).
b. Martin and Starzinger’s Claims Under 29 U.S.C. § 411(a)(3)(A)
Plaintiffs Martin and Starzinger claim that Local 556’s Executive Board
violated 29 U.S.C. § 411(a)(3)(A) by increasing Local 556’s initiation fee without
allowing them to vote on the increase by secret ballot. They assert that instead of
merely interpreting its bylaws, the Executive Board’s initiation fee measure “had the
effect of increasing initiation fees for former members’ reinstatement.”
Local labor organizations are prohibited from increasing “the rates of dues and
initiation fees” or levying a “general or special assessment” unless the a majority of
the members in good standing vote by secret ballot at either a general or special
membership meeting or in a membership referendum. 29 U.S.C. § 411(a)(3)(A).
Section 412 of the LMRDA grants union members a private cause of action for a
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union's infringement of the rights secured by §§ 411–15. Martin v. Local 556, Transp.
Workers Union of Am. AFL-CIO, No. 3:14-CV-0500-D, 2014 WL 4358480, at *6
(N.D. Tex. Sept. 3, 2014).
The Executive Board did not – either in effect or otherwise – increase Local
556’s initiation fee. Article III(b) of Local 556’s bylaws plainly requires those seeking
membership in the union to pay a one hundred dollar initiation fee. At its November
14, 2013 meeting Local 556’s Executive Board approved an amended motion
clarifying the Article III(b)’s initiation fee requirement. Defendant shows that this
amended motion states, “Any current Agency Fee, Non-Member Objector that
requests to become a Member again will be charged the current Initiation Fee.”
(emphasis added)
Local 556’s Financial Secretary-Treasurer John Parrott explained the Executive
Board’s action in his deposition. When asked by Plaintiffs’ Counsel to “explain what
clarity and understanding [he] thought was needed, Parrott stated, “there’s only one
sentence … in the bylaws [which states] that the initiation fee is $100” and “we want
to make sure that we’re applying that to members, you know, people that are
becoming members.”
The Court is persuaded that in the absence of any increase in initiation fees,
29 U.S.C. § 411(a)(3)(A)’s requirements do not apply to Local 556’s actions. The
Executive Board’s amended motion and Parrott’s explanation of the motion establish
that Local 556 did not in effect or in practice increase Local 556’s initiation fee.
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Through this evidence, Defendant satisfied its burden and has shown that there is no
genuine issue of material fact for trial on Plaintiffs’ claim under 29 U.S.C. §
411(a)(3)(A).
Even when viewed in the light most favorable to Plaintiffs, Plaintiffs have not
established “specific facts showing there is a genuine issue for trial.” Celotex, 477 U.S.
at 324. Further, a fair-minded jury could not return a verdict for Plaintiffs on the
evidence presented. Die bold, Inc., 369 U.S. at 655; Liberty Lobby, Inc., 477 U.S. at
252. Accordingly, the Court GRANTS Defendant’s Motion for Summary Judgment
on Plaintiffs claims under 29 U.S.C. § 411(a)(3)(A) and the Court DENIES
Plaintiffs’ Motion for Partial Summary Judgment in its entirety.
c. Jackson and Fisher’s Retaliation Claims
For similar reasons, the Court finds that Defendant has shown that there is no
genuine issue of material fact for trial on Jackson and Fisher’s retaliation claims.
Plaintiffs Jackson and Fisher claim that having to pay the one hundred dollar
initiation fee to rejoin Local 556 was retaliation for their exercise of their First and
Fifth Amendment Constitutional rights and their statutory rights under the RLA and
the LMRDA.
Claims for constitutional retaliation and statutory retaliation under the RLA
require Plaintiffs to show, among other things, that they have suffered an “adverse
action.” Stewart v. Int'l Ass'n of Machinists & Aerospace Workers, No. 15-20279, 2016
WL 1566523, at *1 (5th Cir. Apr. 18, 2016); Roscello v. Sw. Airlines Co., 726 F.2d
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217, 222 (5th Cir. 1984)(citing N.L.R.B. v. Transportation Management Corp., 462 U.S.
393, 103 (1983)). Similarly, claims for statutory retaliation under the LMRDA
require Plaintiffs to show “retaliatory action.” Casumpang v. Int'l Longshoremen's &
Warehousemen's Union, Local 142, 269 F.3d 1042, 1058 (9th Cir. 2001) (citing Sheet
Metal Workers' Int'l Ass'n v. Lynn, 488 U.S. 347, 354 (1989)). An adverse action is a
negative consequence or the denial of some benefit that impinges on a person for the
exercise of their rights. Breaux v. City of Garland, 205 F.3d 150, 157-159 (5th Cir.
2000).
Plaintiffs contend that Defendant took adverse or retaliatory action against
them by requiring Plaintiffs to pay one hundred dollar initiation fee to rejoin the
union. Again, Defendant shows that Article III(b) of Local 556’s bylaws plainly
requires those seeking membership in the union to pay a one hundred dollar
initiation fee. This requirement applies equally to flight attendants who were
previously members of the union and those seeking union membership for the first
time. The Executive Board’s amended motion at its November 14, 2013 meeting
clarified this. Simply put, everyone pays the fee to join the union. The fee is not
increased for former members seeking to rejoin. No penalty is assessed against former
members seeking to rejoin, but former members are also not given a special status or
discount.
Defendant demonstrates that Plaintiffs suffered neither an adverse nor a
retaliatory action in this case. In doing so, Defendant establishes that there is no
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genuine issue of material fact for trial on Plaintiffs’ retaliation claims. Plaintiffs have
not offered summary judgment evidence to show otherwise. Accordingly, the Court
GRANTS Defendant’s Motion for Summary Judgment on Plaintiffs’ retaliation
claims.
d. Jackson and Fisher’s Breach of the Duty of Fair Representation
Claims
The Court finds that Defendant has shown that there is no genuine issue of
material fact for trial on Jackson and Fisher’s claims that Defendant has breached its
duty of fair representation. Jackson and Fisher claim that Local 556 breached the
duty of fair representation by requiring them to pay initiation fee when they sought
to rejoin the union.
It is well established that a union breaches the statutory duty of fair
representation only when its conduct toward a member of the collective bargaining
unit is arbitrary, discriminatory, or in bad faith. Vaca v. Sipes, 386 U.S. 171, 190
(1967). “Discrimination against nonmember employees who are part of the
bargaining unit is impermissibly arbitrary if no relevant distinctions exist between the
union and nonunion employees.” Del Casal v. E. Airlines, Inc., 634 F.2d 295, 301 (5th
Cir. 1981).
Plaintiffs argue that Local 556 arbitrarily distinguishes “current agency fee
nonmember objectors” from “former non-objecting members” who pay no additional
initiation fees to rejoin the union. Notably, Plaintiffs cite no summary judgment
evidence to support this argument. Defendant argues that the initiation fee
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requirement

was

clarified

to

avoid

distinctions

–

and

any

accompanying

discrimination – between Plaintiffs as non-members and others seeking to join Local
566. The Court agrees with Defendant.
Defendant establishes through Brett Nevarez’s affidavit that Local 556 abides
by its bylaws and the TWU Constitution uniformly and that Local 556 uniformly
applies the initiation fee requirement. With the few exceptions specifically
promulgated in the TWU Constitution, such as when a member in good standing
leaves the industry or is furloughed for more than 90 consecutive days and receives a
withdrawal card from TWU International, all members who withdraw and then seek
to rejoin and all new members must pay the initiation fee. In Fenderson v. Indep. Fed’n
of Flight Attendants, F.3d Supp. 245, 249 (S.D.N.Y. 1990), the district court accepted
a similar uniform application of an initiation fee requirement because the fee
“applie[d] equally to all who seek membership.” Local 556’s requirement is no
different.
Plaintiffs further argue that Local 556’s conduct was arbitrary and
discriminatory because the TWU Constitution has certain specific exceptions to the
initiation fee requirement. According to Plaintiffs, this violates the uniformity
requirement because it “distinguishes between classes of members.” Again, Plaintiffs
cite no summary judgment evidence to support this argument.
Plaintiffs’ argument is misdirected. As Defendant points out in its reply, TWU
International promulgates the TWU Constitution and Local 556 is bound to comply
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with the Constitution’s requirements. Any claim that the TWU Constitution is
discriminatory, arbitrary, or in bad faith is properly asserted against TWU
International. TWU International is not a party to this case.
Defendant has established that its conduct toward a member of the collective
bargaining unit was not arbitrary, discriminatory, or in bad faith. Defendant has
satisfied its burden and demonstrated that there is no genuine issue of material fact
for trial on Jackson and Fisher’s claims that Defendant has breached its duty of fair
representation. As nonmovants, Plaintiffs have not shown that any genuine issue of
material fact exits on these claims. Accordingly, the Court GRANTS Defendant’s
Motion for Summary Judgment on Plaintiffs’ claims for the breach of duty of fair
representation.

e. Conclusion
Defendant has shown that it did not increase Local 556’s initiation fee, take
adverse or retaliatory actions against Plaintiffs, or engage in arbitrary or
discriminatory conduct. The Court finds after reviewing Defendant’s pleadings,
affidavits, and other summary judgment evidence that no genuine issue of material
fact exists on Plaintiffs’ claims under 29 U.S.C. § 411(a)(3)(A), Plaintiffs’ retaliation
claims, and Plaintiffs’ claims for breach of the duty of fair representation. Plaintiffs
have not satisfied their burden as nonmovants to show that genuine issues of material
fact exists for trial. Accordingly, Defendant is entitled to judgment as a matter of law
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on these three claims, the Court GRANTS Defendant TWU Local 556’s Motion for
Summary Judgment, DENIES Plaintiffs’ Motion for Partial Summary Judgment, and
DENIES as moot Defendant TWU Local 556’s Motion to Strike.
SO ORDERED.
Signed August 29th, 2016.

____________________________________
ED KINKEADE
UNITED STATES DISTRICT JUDGE

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