     Case: 16-11428      Document: 00514149035         Page: 1    Date Filed: 09/08/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT      United States Court of Appeals
                                                        Fifth Circuit

                                                                                     FILED
                                                                                September 8, 2017
                                      No. 16-11428
                                                                                  Lyle W. Cayce
                                                                                       Clerk

KELLEY MARTIN; PAMELA STARZINGER; DEBORAH FISHER; JEANNA
JACKSON,

              Plaintiffs-Appellants,


v.

LOCAL 556, TRANSPORT WORKERS UNION OF AMERICA,

              Defendant-Appellee.



                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 3:15-CV-556


Before BARKSDALE, DENNIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
       Plaintiffs-Appellants Kelley Martin, Pamela Starzinger, Deborah
Fisher, and Jeanna Jackson sued Defendant-Appellee Transport Workers
Union of America, Local 556 (Local 556) raising various claims under the
Labor-Management Reporting and Disclosure Act (LMRDA), the Railway
Labor Act (RLA), and the First and Fifth Amendments.                      The Plaintiffs­



       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                     No. 16-11428
Appellants also claim that Local 556 breached its duty of fair representation.
The district court granted summary judgment in favor of Local 556 and the
Plaintiffs-Appellants appeal. We AFFIRM.
      I.     FACTUAL AND PROCEDURAL BACKGROUND
      A. Facts
      Local 556 is a branch of the Transport Workers Union of America (TWU).
As amended in 2011, Local 556’s bylaws provide that “[e]ffective January 1,
2012, the initiation fee shall be $100.” The only exemptions from the initiation
fee requirement are found in the TWU International Constitution. Article XIII
Sections 8 and 9(a) of the International Constitution exempt the following
individuals from payment of the initiation fee: (1) members in good standing
who transfer from one Local to another; and (2) members in good standing who
“leave the industry or [are] furloughed for more than 90 consecutive days.”
      The Plaintiffs-Appellants are Southwest Airlines flight attendants.
Kelley Martin and Pamela Starzinger have at all times relevant to this lawsuit
been members in good standing of Local 556. Deborah Fisher and Jeanna
Jackson were both members of Local 556 until late 2013, when they resigned
their membership. Fisher and Jackson were two of roughly ninety members of
Local 556 who withdrew from membership and became Agency Fee, Non-
Member Objectors (AFNOs) at that time. 1
      In November 2013, after the AFNOs had withdrawn from membership,
the Executive Board (the Board) of Local 556 held a meeting. The minutes
from the meeting reflect that it began with a “discussion regarding the small
number of Flight Attendants who had opted to become [AFNOs].” Thereafter,
a motion was made “that if a Member chooses to become an [AFNO] and


      1  AFNOs are not permitted to attend union meetings or participate in union elections
but are still represented by Local 556. AFNOs are not considered union members and pay a
fee lower than monthly due payments.
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                                      No. 16-11428
requests to become a Member again, they will be charged the current Initiation
Fee,” and that “[a]ny current [AFNO] that requests to become a Member again
will be charged the current Initiation Fee.” The motion was approved by a vote
of the Board. Several Board members testified that the purpose of the motion
was for “clarity and understanding” of the already existing initiation fee
provision of the bylaws. The motion approved by the Board did not alter the
language of either Local 556’s bylaws or the TWU International Constitution.
Both Fisher and Jackson have since rejoined Local 556, and on returning to
the membership, paid the $100 initiation fee under protest.
       B. Procedural Background
       The Plaintiffs-Appellants sued Local 556 based on the Board’s motion. 2
They claim that the Board’s motion effectively increased the initiation fee
required by Local 556. Accordingly, the Plaintiffs-Appellants contend that
Local 556: (1) violated the LMRDA by failing to hold a secret-ballot vote of the
membership before increasing the fee; (2) increased the initiation fee as
retaliation against the AFNOs in violation of the RLA and the First and Fifth
Amendments; and (3) violated its duty of fair representation by imposing an
increased fee.
       On January 11, 2016, the Plaintiffs-Appellants filed a motion for partial
summary judgment as to the LMRDA claim. That same day, Local 556 filed a
cross-motion for summary judgment as to all of the Plaintiffs-Appellants’
claims. On August 29, 2016, the district court denied the Plaintiffs-Appellants’
motion, granted Local 556’s motion, and dismissed the Plaintiffs-Appellants’
claims with prejudice. The Plaintiffs-Appellants timely appealed.


       2 Martin and Starzinger filed an initial complaint on February 17, 2015. Pursuant to
Federal Rule of Civil Procedure 15(a)(2), Fisher and Jackson were joined in the suit, and an
amended complaint was filed by all four Plaintiff-Appellants on June 1, 2015. All of the
Plaintiffs-Appellants claim a violation of the LMRDA, but only Fisher and Jackson claim
retaliation and a breach of the duty of fair representation.
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                                 No. 16-11428
      II.   DISCUSSION
      We review a grant of summary judgment de novo and apply the same
standard as the district court. Edwards v. Cont’l Cas. Co., 841 F.3d 360, 362
(5th Cir. 2016). Summary judgment is appropriate where “the movant shows
that there is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” FED. R. CIV. P. 56(a). “We consider
the evidence in the light most favorable to the nonmoving party and draw all
reasonable inferences in its favor.” Edwards, 841 F.3d at 363.
      A. LMRDA Claim
      The Plaintiffs-Appellants first argue that the Board’s motion violated the
LMRDA because it increased the initiation fee without a secret-ballot vote of
the union membership. They contend that the motion passed at the Board
meeting did not merely interpret the existing bylaws, but actually increased
the initiation fee applied to some members. Section 101(a)(3) of the LMRDA
prohibits increasing “the rates of dues and initiation fees” and levying “general
or special assessment[s]” payable by union members without a secret-ballot
vote of a majority of members in good standing. 29 U.S.C. § 411(a)(3)(A).
      As an initial matter, the Plaintiffs-Appellants fail to raise a question of
material fact as to whether the motion adopted by the Board even changed the
policy expressed in Local 556’s bylaws. The bylaws clearly state that those
who wish to become members of Local 556 must pay a $100 initiation fee. The
only narrow exemptions from this requirement are found in the TWU
International Constitution, and there is no express exemption for individuals
like the Plaintiffs-Appellants who voluntarily resign their union membership
in protest while remaining qualified to be members. The Plaintiffs-Appellants
also admit that there has never been a situation in which an AFNO sought
reinstatement with Local 556; therefore they have no evidence that individuals
have been reinstated in the past without paying additional initiation fees.
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Accordingly, there is no evidence in the record that the bylaws, as applied prior
to the Board’s motion, would have exempted an AFNO seeking reinstatement
from paying a second initiation fee.
      Plaintiffs-Appellants further argue that the Board’s motion could not
possibly have been a mere clarification of the bylaws. Plaintiffs-Appellants
contend that no motion would have been necessary if the bylaws plainly
required AFNOs seeking reinstatement to pay the initiation fee. But the
language of the bylaws is broad and straightforward and it would make little
sense for Local 556 to permit members to come and go as they pleased without
any consequence. In combination with the fact that this type of situation had
never before arisen, it is unreasonable to infer that the bylaws must have had
a different scope before and after the motion.
      Moreover, even if the motion did represent a change in policy, it is plain
that that change did not increase the “rate of . . . initiation fees” within the
meaning of § 101(a)(3).    The Plaintiffs-Appellants assert that the motion
“‘enlarged’ and ‘augmented’ the initiation fee obligation, increasing initiation
fees incrementally and cumulatively.” But a “rate” is “an amount, quantity, or
value, considered in isolation.”     Rate, OXFORD ENGLISH DICTIONARY
(Online Version), http://www.oed.com/view/Entry/ 158412 (emphasis added).
Before and after the motion was passed, the amount required to become a
member of Local 556 was $100. That this might have increased the total
amount that AFNOs paid in initiation fees over time is of no moment.
      Because the Plaintiffs-Appellants have not raised a genuine dispute of
material fact as to whether the Board’s motion even changed Local 556’s
initiation fee policy, let alone increased the rate of initiation fees within the
meaning of the LMRDA, we hold that the district court properly granted
summary judgment in favor of Local 556 on the LMRDA claim.


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                                 No. 16-11428
      B. Retaliation Claim
      Jackson and Fisher also claim that they were exercising their rights
under the First and Fifth Amendments and the RLA when they resigned
membership to become AFNOs. They contend that Local 556’s requirement
that they pay the $100 initiation fee to rejoin the union constituted retaliation
for their exercise of constitutional and statutory rights. To make a claim for
constitutional or statutory retaliation, a plaintiff must show, among other
things, that she suffered an “adverse action.” Roscello v. Sw. Airlines Co., 726
F.2d 217, 222 (5th Cir. 1984) (quoting NLRB v. Transp. Mgmt. Corp., 462 U.S.
393, 401 (1983)).    As stated above, we find the Plaintiffs-Appellants have
presented no evidence that the Board’s motion changed Local 556’s initiation
fee policy. Accordingly, no material factual dispute exists regarding whether
Jackson and Fisher suffered an adverse employment action, and summary
judgment on this claim was proper.
      C. Fair Representation Claim
      Finally, Jackson and Fisher claim that Local 556 breached its duty of
fair representation by requiring AFNOs seeking reinstatement to pay the
initiation fee. A union breaches its statutory duty of fair representation “only
when a union’s 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). “[D]iscrimination 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. Unit B Jan. 1981).
      Here, Jackson and Fisher claim that the Board’s motion “makes
arbitrary and impermissible distinctions between former members who were
[AFNOs] and non-objecting former members who did not exercise their rights
to resign . . . and object to payment of nonbargaining expenditures.” In other
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                                No. 16-11428
words, they claim that only those former members exercising their
constitutional and statutory rights to object must pay the initiation fee to be
reinstated.
      But the Plaintiffs-Appellants point to no summary judgment evidence in
support of this argument. First, the Plaintiffs-Appellants have not presented
any evidence that the Board’s motion changed the policy that already existed
in Local 556’s bylaws and TWU’s International Constitution. Second, they have
presented no evidence that Local 556 applied its established initiation fee
policy arbitrarily or unequally. On its face, the Local 556 bylaws broadly
require payment of a $100 initiation fee to become a member of the union—the
bylaws themselves draw no distinctions between nonmembers who must pay
this fee. The only exemptions from this requirement are those covered by the
International Constitution, with regard to which Local 556 has no discretion.
Thus, even if this Court were to conclude that exempting only certain former
members from paying the initiation fee while not exempting others is a breach
of the duty of fair representation, Local 556 is not the entity responsible for
that breach.    Summary judgment in favor of Local 556 was therefore
appropriate.
      III.    CONCLUSION
      For the foregoing reasons, we AFFIRM the district court’s grant of
summary judgment in favor of Local 556 on all claims raised by the Plaintiffs­
Appellants.




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