                          File Name: 05a0834n.06
                           Filed: October 11, 2005
               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION

                                          No. 04-4342

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT


JAMES EASTMAN,                                   )
                                                 )
       Plaintiff-Appellant,                      )
                                                 )
v.                                               )   ON APPEAL FROM THE UNITED
                                                 )   STATES DISTRICT COURT FOR THE
CINCINNATI MUSICIANS ASSOCIATION,                )   SOUTHERN DISTRICT OF OHIO
Local No. 1; CINCINNATI SYMPHONY                 )
ORCHESTRA,                                       )
                                                 )
       Defendants-Appellees.                     )



       Before: KENNEDY, COOK, and GRIFFIN, Circuit Judges


       COOK, Circuit Judge. James Eastman appeals the district court’s order granting the

Cincinnati Symphony Orchestra’s (“the CSO”) motion for judgment on the pleadings and dismissing

Eastman’s claims that the CSO and the Cincinnati Musicians Association (“the Union”) violated the

Landrum-Griffin Act (“the Act”), 29 U.S.C. §§ 411, 412, 529, and conspired to violate the Act in

violation of Ohio law. Finding no error in the district court’s conclusion that Eastman failed to

allege a cause of action cognizable under the Act, we affirm.


                                             I
No. 04-4342
Eastman v. Cincinnati Musicians Association, et. al.


       The CSO discharged Eastman from his employment as a musician for “artistic

incompetence.” That firing triggered Eastman’s right as a member of the Union to invoke the

collective bargaining agreement’s (“CBA”) grievance procedure for obtaining a peer review of the

employer’s incompetence decision. According to the CBA, the purpose of the peer review is to

determine “whether the charge should be sustained or not sustained.” In Eastman’s case, the

reviewers sustained the employer’s decision to discharge.


       Eastman’s complaint alleged that by denying him the opportunity to present rebuttal

evidence during the peer review, the Union and the CSO violated his free speech and due process

rights under the Act. The district court disagreed, granted the CSO judgment on the pleadings for

failure to state a claim, and dismissed the claims against both the CSO and the Union. This appeal

followed.


                                              II

       We first address Eastman’s procedural argument that because the CSO attached a copy of

the CBA to its motion for judgment on the pleadings, the court should have converted the motion

to a motion for summary judgment. Federal Rule of Civil Procedure 12(c) requires a court to

convert a motion for judgment on the pleadings to a motion for summary judgment where “matters

outside the pleadings are presented to and not excluded by the court.” And once a court converts

a motion for judgment on the pleadings to a motion for summary judgment, the parties are entitled

to further discovery under Rule 56(e). Eastman contends that the court erred by declining to convert



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the motion and that it thereby prejudiced him by denying him the opportunity to conduct discovery

to support his claims.

       The district court correctly refused to convert the CSO’s motion because the CBA was part

of, rather than “outside,” the pleadings. Documents attached to a Rule 12 motion “are considered

part of the pleadings if they are referred to in the plaintiff’s complaint and are central to the

plaintiff’s claim.” Jackson v. City of Columbus, 194 F.3d 737, 745 (6th Cir. 1999), abrogated on

other grounds by Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002). Central to Eastman’s claim

is the contention that the Union deviated from the grievance procedure in the CBA. The amended

complaint repeatedly refers to the CBA and specifically its grievance procedure. In addition, given

our conclusion that Eastman’s complaint does not set forth claims countenanced by the Act (see

below), the attachment added nothing to the amended complaint’s viability. We thus regard the

district court’s dismissal of Eastman’s complaint under Rule 12(c) as free from procedural error.

                                                   III

       Considering then the CSO’s motion and the pleadings before it, the district court correctly

dismissed Eastman’s claims for failing to allege a violation of the Act. Eastman’s complaint alleged

two violations. First, Eastman contended that by preventing him from presenting rebuttal evidence

during the peer review process the Union and the CSO violated his free speech and due process

rights under § 411(a)(2), (a)(5). Section 411(a)(2) provides general rights of free speech and

assembly and § 411(a)(5) prohibits a union from “fin[ing], suspend[ing], expel[ing], or otherwise

disciplin[ing]” any of its members without providing various procedural protections. Second,



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Eastman alleged the Union and the CSO retaliated against him in violation of § 529, which prohibits

a union from “fin[ing], suspend[ing], expel[ing], or otherwise disciplin[ing]” any of its members for

exercising their rights secured by the Act.

       We note first that the §§ 411, 412, and 529 create causes of action by union members against

their unions, but do not create causes of action by employees against their employers. See Bauer

v. RBX Indus., Inc., 368 F.3d 569, 586 (6th Cir. 2004) (holding that employers have no liability

under section 411(a)(4)—prohibiting labor organizations from limiting members’ rights to institute

court actions—because the statute “does not authorize a cause of action against employers”);

Duncan v. Peninsula Shipbuilders Ass'n, 394 F.2d 237, 239 (4th Cir. 1968) (finding it “abundantly

clear that the Act does not give a cause of action against an employer”). The district court thus

correctly found that Eastman’s claims against the CSO were not cognizable under the Act.

       Second, we find that the district court correctly dismissed Eastman’s due process and

retaliation claims against the Union because Eastman was not “disciplin[ed]” by the Union within

the meaning of the Act. “Discipline” under the Act denotes “punishment authorized by the union

as a collective entity to enforce its rules,” Breininger v. Sheet Metal Workers Int'l Assoc. Local

Union No. 6, 493 U.S. 67, 91 (1989), and a member is “disciplined” only “when the union takes

action under color of the union’s right to control the member’s conduct in order to protect the

interests of the union or its membership.” Webster v. United States, 394 F.3d 436, 441 (6th Cir.

2005) (internal quotations omitted). Eastman essentially contends that his discharge by the CSO and

the peer review component of the grievance process constituted union discipline. We disagree.



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       Neither Eastman’s discharge nor the Union’s participation in the grievance process amounted

to discipline by the Union. The Union neither caused, instigated, nor authorized his discharge, and

the discharge, initiated by the CSO based on its dissatisfaction with Eastman’s performance, did not

enforce Union rules. See Konen v. Int'l Bhd. of Teamsters, 255 F.3d 402, 409 (7th Cir. 2001)

(finding no discipline where plaintiff failed to show “that the Union caused his termination”).

Eastman remains a member of the Union in good standing. In the absence of some diminishment

of Eastman’s membership rights or union status, Eastman’s peer review did not constitute discipline.

See id. at 410 (finding no discipline because plaintiff“was never subjected to official Union

discipline . . . and there is no evidence that his membership rights or status have been diminished

in any way”). Rather than union discipline, the review proceedings represented an option available

to discharged union members to challenge their termination. The vehicle for such challenges

involved peer review. Eastman exercised that beneficial, negotiated option, as afforded him by his

union membership.

       Third, we find that the district court correctly dismissed Eastman’s claim that by denying him

the opportunity to present evidence during the peer review process, the Union violated his speech

rights under § 411(a)(2). Section 411(a)(2) protects a union member’s general “right to meet and

assemble freely with other members; and to express any views, arguments, or opinions;” it does not

purport to regulate grievance procedures, and Eastman fails to argue why it should. He points us

to two cases discussing procedural protections under § 411(a)(5), not § 411(a)(2)—Detroy v.

American Guild of Am. Variety Artists, 286 F.2d 75 (2d Cir. 1961) and United States v. Int’l Bhd.



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of Teamsters, 992 F. Supp. 601 (S.D.N.Y. 1998)—and another concerning the rights of union

members to participate in meetings in which strike negotiations are discussed—Kuebler v. Cleveland

Lithographers & Photoengravers Union Local 24-P, 473 F.2d 359 (6th Cir. 1973). Since we regard

the grievance process as a benefit to Eastman, rather than any restriction, in our view these cases do

not advance Eastman’s cause. Eastman quarrels with the limitations encompassed within the

negotiated procedures, not the Union’s restriction on membership rights.

       Finally, because Eastman failed to establish an underlying violation of the Act, we find that

his Ohio conspiracy claims were properly dismissed by the district court. See Williams v. Aetna Fin.

Co., 700 N.E.2d 859, 868 (Ohio 1998).

                                               IV

       The district court properly granted the CSO’s motion for judgment on the pleadings and

properly dismissed Eastman’s claims against the CSO and the Union. We accordingly affirm.




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