                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 13-1629
                        ___________________________

                                    John Rudish

                       lllllllllllllllllllll Plaintiff - Appellant

                                           v.

  International Union of Operating Engineers, Local 234; International Union of
                              Operating Engineers

                      lllllllllllllllllllll Defendants - Appellees
                                       ____________

                     Appeal from United States District Court
                 for the Northern District of Iowa - Cedar Rapids
                                  ____________

                           Submitted: January 17, 2014
                             Filed: March 21, 2014
                                 [Unpublished]
                                 ____________

Before LOKEN, BOWMAN, and GRUENDER, Circuit Judges.
                          ____________

PER CURIAM.

      John Rudish was expelled from the International Union of Operating Engineers
(IUOE) following a union proceeding on charges brought against him by a member
of IUOE, Local 234 (Local 234). Afterward, Rudish brought this suit against IUOE
and Local 234, citing violations of section 101(a)(5) of the Labor Management
Reporting and Disclosure Act, which forbids labor organizations from expelling or
disciplining a member without (1) service of written specific charges, (2) a reasonable
time to prepare a defense, and (3) a full and fair hearing. See 29 U.S.C. § 411(a)(5).
Rudish claimed that the charges were not sufficiently specific or supported by enough
evidence and that his union hearing was held before a related criminal charge against
him had been resolved, which prejudiced him and violated his constitutional rights.
The District Court granted summary judgment to IUOE and Local 234 on all claims.
We have reviewed the record de novo and have drawn all reasonable inferences in
Rudish’s favor, see Rochling v. Dep’t of Veterans Affairs, 725 F.3d 927, 937 (8th Cir.
2013), and for the reasons explained below, we conclude that there are disputed issues
of material fact on whether Rudish received a full and fair hearing. Accordingly, we
reverse the dismissal of that claim.

       The District Court concluded that the summary-judgment record revealed no
issues for a jury on whether Rudish had received a full and fair hearing because the
record showed that the adverse disciplinary decision was supported by “some
evidence.” See Int’l Bhd. of Boilermakers v. Hardeman, 401 U.S. 233, 245–46 (1971)
(noting that full-and-fair-hearing provision requires that disciplinary decision be
supported by “some evidence”). As summary-judgment movants, IUOE and Local
234 had the burden of showing that there were no genuine issues of material fact, see
Whisenhunt v. Sw. Bell Tel., 573 F.3d 565, 568 (8th Cir. 2009), but they offered
nothing to show what evidence had been presented at the union proceeding. In fact,
they did not even mention the “some evidence” standard, much less argue (and most
important, demonstrate) that the standard had been met. The only indication in the
record as to what evidence was presented at the union proceeding is in a one-page
copy of the minutes—material that Rudish himself presented as an attachment to his
complaint.

      According to the minutes of the union proceeding, each side was given five
minutes to present its case. The member who had brought the union charges against


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Rudish, which included making a threat against IUOE business agent Don Duehr,
explained why he had brought the charges and noted that an order of protection had
been issued against Rudish. In his defense, Rudish asked retired business agent Dick
Petersmith whether Rudish had ever gone to his house or called in the evening.
Petersmith responded that Rudish had done so and that Petersmith’s wife had called
police to get Rudish to leave the property. Rudish then played a recording of Duehr’s
voice telling Rudish not to call his house at night. Other evidence in the summary-
judgment record showed that Duehr was present at the hearing but did not speak.

      We find some guidance from the decision in Hardeman, in which a union
member was charged with attacking and beating a union business manager. The union
member admitted striking the first blow, and the victim’s testimony was fully
corroborated by a witness to the altercation. The Supreme Court found that there was
“no question that the charges were adequately supported.” Hardeman, 401 U.S. at
247; see also Mayle v. Laborer’s Int’l Union of N. Am., Local 1015, 866 F.2d 144,
145–47 (6th Cir. 1988) (per curiam) (holding that there was abundant evidence to
support the charge against a union member for helping organize a non-AFL-CIO local
union of a different name where the union member admitted at the hearing that he
contacted local contractors for the purpose of negotiating a collective bargaining
agreement for new union and serving as the new union’s business manager).

       Unlike in Hardeman, in this case, there was no evidence presented that was
directly probative of the charges brought against Rudish. The evidence merely
consisted of statements or testimony on (1) the existence of an order of protection
against Rudish, (2) how Rudish had behaved towards Petersmith, and (3) how Duehr
had once asked Rudish not to call his house at night. We cannot agree with the
District Court that this presentation constituted “some evidence” that Rudish had
threatened Duehr. See Hardeman, 401 U.S. at 246 (reiterating that “conviction on
charges unsupported by any evidence is a denial of due process”).



                                         -3-
        Accordingly, we reverse the dismissal of Rudish’s claim that he did not receive
a full and fair hearing, and we remand with directions that the District Court
determine, as a matter of law on an adequate fact record, whether there was “some
evidence” supporting the decision to expel Rudish from union membership. If the
court concludes there was some supporting evidence, the claim should be dismissed.
If not, then further proceedings may be required, as in Eisman v. Baltimore Reg’l Joint
Bd., 496 F.2d 1313, 1314 (4th Cir. 1974). In all other respects, we affirm.
                         ______________________________




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