                 IN THE COURT OF APPEALS OF TENNESSEE
                              AT JACKSON
                                       May 2000 Session

            ALFRED DOWDY v. WILLIE JOE ALEXANDER, ET AL.

                A Direct Appeal from the Chancery Court for Shelby County
                 No. 98-0583-1    The Honorable Walter Evans, Chancellor



                     No. W1999-00222-COA-R10-CV - Filed July 27, 2000



        After Local union’s executive board terminated employment of its executive director, a
member of the board sued in chancery court to enjoin the union from terminating the executive
director. The chancery court issued a temporary injunction. After union’s internal procedures
established that the termination was not in violation of the union’s constitution, the union moved to
dissolve the injunction and to dismiss the suit. From the chancery court’s order denying the motion,
the union appeals

Tenn. R. App. P. 10, Appeal as of right; Judgment of the Chancery Court is Vacated,
Injunction Dissolved and Complaint Dismissed.

W. FRANK CRAWFORD, PJ., W.S., delivered the opinion of the court, in which DAVID R.
FARMER, J., and HOLLY KIRBY LILLARD, J., joined.

Alan Bryant Chambers and Jeff A. Crow, Jr., Memphis, For Appellants

Donald A. Donati, Memphis, For Appellee

                                             OPINION

        This is a T.R.A.P. 10 extraordinary appeal. Defendants, Willie Joe Alexander (Alexander),
and Local 1733 of the American Federation of State, County, and Municipal Employees (AFSCME),
appeal the order of the trial court denying their motion to dissolve the temporary injunction issued
and to dismiss the complaint filed by plaintiff, Alfred Dowdy (Dowdy).

       Plaintiff’s complaint, filed June 30, 1998, alleges that plaintiff is a member of the executive
board of Local 1733, that defendant, Alexander, is president of Local 1733, and that Local 1733
AFSCME is a unincorporated association acting as the collective bargaining representative of several
employees with various employers in Shelby County, Tennessee. The complaint avers that a special
board meeting of the executive board was scheduled for May 29, 1998 to evaluate the performance
of the union’s executive director, Dorothy Crook, who has been the executive director since
December, 1995. The complaint avers that at that board meeting the majority of members of the
executive board voted to terminate the employment of Ms. Crook as executive director effective June
30, 1998, but that plaintiff voted against the action to remove Ms. Crook. The complaint alleges that
at no time prior to the meeting was Ms. Crook or the executive board given notice of the charges or
that there would be a vote on whether to retain her. The complaint further avers that prior to the
board meeting, Ms. Crook had stated to the executive board and informed the international union
that an improper life insurance plan for some of the Shelby County employees had been instituted
by Alexander and other members of the executive board in violation of the union constitution and
the international constitution. The complaint alleges that the May 29, 1998 meeting was not
conducted pursuant to the rules and procedures of the union and that the action taken at the meeting
was void because of failure to comply with such procedures.

        The complaint further avers that on June 1, 1998, Alexander announced by letter to each
member of the Local that a general membership meeting would be held June 16, 1998, at 6 p.m. The
complaint alleges that the announcement identified an item of business as the action of the executive
board dismissing Ms. Crook. The complaint further avers that at the June 16 meeting a motion was
made from the floor to rescind the action of the board, but Alexander refused to allow the question
to be voted on by the general membership, ruling that the motion was out of order because the
constitution of Local 1733 gives the executive board the authority to hire and fire the executive
director and also because there was no a quorum present at the meeting. Dowdy further alleges that
he has filed charges with the international union concerning the illegal act of defendant Alexander
and other members of the board and avers that Ms. Crook has also filed charges with the
international union against defendant Alexander and other officers and members of the board. The
complaint alleges that because of ongoing contract negotiations and other responsibilities of Ms.
Crook, the union will be irreparably harmed if another executive director is hired by the board. The
complaint seeks a temporary restraining order to prevent removing Ms. Crook as executive director
and seeking a replacement for her. The complaint also seeks a temporary injunction to enjoin
defendants from removing Ms. Crook and filling the position until the general membership is
allowed to vote and until such time as the international union addresses the charges filed against
defendant Alexander and others arising out of the efforts to remove Ms. Crook. A temporary
restraining was issued and a hearing for the temporary injunction was set for July 13, 1998.

         In response to the complaint, defendants filed “Defendants’ Statement of Opposition to
Issuance of Temporary Injunction and Motion to Dismiss Complaint,” which avers that Ms. Crook
was terminated on May 29, 1998, and placed on administrative leave with pay. It is averred that she
was given the option of remaining an employee of the Local by becoming a staff member. The
pleading further avers that she rejected the option, and her employment was terminated effective
June 30, 1998. Copies of the Minutes of the executive board were attached and incorporated in the
pleading. The pleading further alleges that Article 6 of the constitution grants the sole and exclusive
power to the executive board for hiring an executive director and setting the terms of employment.
The pleading further avers that Ms. Crook did not have a contract of employment with the Local and
was an employee at will. The pleading moves to dismiss the complaint because the plaintiff has
failed to exhaust the remedies provided for in the international constitution of AFSCME or the Local
1733 constitution, and that if there had been a breach of contract of employment with Dorothy

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Crook, an adequate remedy at law exists for her to sue for damages. It is further averred that the
complaint fails to state a claim upon which relief can be granted.

        On July 29, 1998, the chancery court entered “Order Granting Temporary Injunction” which
states as follows:

                       This cause came on to be heard on July 17, 1998 before the
               Honorable Neal Small, Chancellor, upon statements of counsel and
               the entire record in this cause. From all of which it appears to the
               Court that a temporary injunction should issue as set out in this Order
               hereafter.

                    IT IS, THEREFORE, ORDERED, ADJUDGED, AND
               DECREED:

               1. The Defendants are restrained from hiring a new Executive
               Director, pending further orders of the Court.

               2. Dorothy Crook will continue to receive her pay as Executive
               Director in accordance with this Order but may not exercise the office
               and the authority of Executive Director.

               3. All parties being desirous of a resolution by the International
               Union of matters regarding the discharge of Dorothy Crook, the Court
               will hold proceedings in this cause in abeyance until a determination
               is made; and when made, the parties will report to the Court regarding
               the status of the case.

               4. Pending a resolution of this case by the parties or judicial
               resolution by the Court, or until such time as the Court deems
               appropriate, A.F.S.C.M.E. Local 1733 shall pay Dorothy Crook the
               salary and wages she regularly received as Executive Director. In the
               event that she is not reinstated, then A.F.S.C.M.E. Local 1733 shall
               be entitled to set-off for the salary payments against severance and/or
               benefits to which she is entitled.

               5. This temporary injunction shall be in effecting [sic] pending
               further orders of this Court.

        On July 29, 1999, the defendants filed a “Motion to Dismiss and Dissolve Temporary
Injunction.” The affidavits and exhibits thereto filed in support of the Motion to Dismiss reflect the
following undisputed facts: Article VI, Sec. 1 of the Constitution of Local 1733 provides that the
“local executive board shall hire the director who shall be the chief administrative officer of this


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local.” In response to a complaint filed by Dowdy, the international president, Gerald W. McEntee,
advised Dowdy of his ruling:

               There is nothing in the Constitution of Local 1733 that gives the
               membership the authority to review or reverse decisions made by the
               executive board regarding the hiring or firing of the director. Based
               on the quoted portion of Article VI, Section1, it is clear that the
               executive board, and only the executive board, has the authority to
               make decisions regarding the hiring and firing of the director, and
               that the membership of the Local does not have the authority to
               overrule such decisions or to usurp the authority of the executive
               board to make them. Therefore, the president of Local 1733 properly
               ruled the motion made by Brother Jones at the June 16 membership
               meeting out of order.

         In addition to Dowdy’s administrative complaint, Crook also filed charges against Alexander
and other members of the Local pursuant to the international operating procedures of the union. She
challenged the decision by the executive board to terminate her employment. International president,
Albert Diop, was appointed to serve as trial officer and conducted hearings on August 13, September
14 - 15, and October 9, 1998, in Memphis, Tennessee. The trial officer summarized six charges filed
by Ms. Crook, all of them dealing with her termination as executive director. The trial officer
determined in his report dated December 14, 1998, that all of the accused were not guilty of the
charges filed against them, and that Crook had been properly terminated in accordance with the
constitution of the union. By a letter dated August 20, 1999, Ms. Crook was duly notified that the
AFSCME International Executive Board heard her appeal from the trial officer’s decision and upheld
the decision of the union trial officer.

      On October 12, 1999, the trial court entered its “Order on Motion to Dismiss and Motion to
Modify Temporary Injunction,” which states:

                       This cause came to be heard upon Defendants’ Motion to
               Dismiss and Motion to Dissolve the Temporary Injunction entered on
               July 29, 1998. Upon review of the motions, and affidavit in support
               of the motions, the response filed by Plaintiff, upon statements and
               argument of counsel, and upon the entire record in the file, it appears
               to the Court that the motion to dismiss should be denied. The Court
               makes the following findings:

               1. The Court entered an injunction enjoining the discharge of
               Dorothy Crook until further proceedings from this Court and until the
               resolution of judicial charges filed with A.F.S.C.M.E. by Ms. Crook;

               2. The Court further ordered that the parties report back to the Court
               at the conclusion of the A.F.S.C.M.E. judicial proceedings and that

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                  the parties have now reported back to the Court. There is a
                  substantial issue concerning the manner in which Ms. Crook was
                  terminated and the notice given to her and the members of the Board
                  as to the purpose of the meeting. Further, it was a very close vote in
                  favor of her removal. The Court believes that the injunction should
                  be modified to permit a re-vote by the Board on whether to retain or
                  dismiss Ms. Crook.

                  3. The injunction shall remain in effect until such time as there is a
                  special meeting of the Board of Director of Local 1733 of
                  A.F.S.C.M.E. where the charge of “lack of leadership” against Ms.
                  Crook shall be heard and at said meeting Ms. Crook, Plaintiff, and
                  other board members shall have an opportunity to address the charge
                  and the board shall vote on whether to retain or dismiss Ms. Crook.
                  This Board meeting shall be in the presence of the general
                  membership and the general membership shall be made aware of the
                  purpose of the meeting and the right to attend at least two (2) weeks
                  before the meeting. This special meeting of the Board of Directors
                  shall be held on Saturday, November 20, 1999 beginning at 9:00 a.m.
                  The re-vote of the Board will be dispositive of the issue of the
                  retention or dismissal of Dorothy Crook.

                  4. On November 22, 1999, the temporary injunction shall be
                  dissolved provided there is a Board meeting in compliance with this
                  Order. The Temporary Injunction shall remain in effect in all other
                  aspects.

                  5. The Court had previously addressed the Motion to Disqualify
                  Judge in conference with the attorneys for the parties. For the reasons
                  stated in the conference, the Court denies the Motion to Disqualify
                  Judge.1


         1
            Although defendants have not presented an issue concerning this action of the chancellor, the nature of the
motion and the manner of its disposition calls for some comment by this Court. On July 22, 1999, defendants filed a
“Motion to Disqualify Trial Judge.” The m otion no ted that the k ey issue in th e litigation is whether Dorothy Crook was
lawfully terminated as executive director of Local 1733. The motion states that one Yvette Salter, a board member of
Local 1733, in forme d the bo ard of dire ctors that the trial judge, in a conversation before his election to the bench,
referred to Dorothy Crook as “my good friend,” and commented that Ms. Crook helped him get a political endorsement
from the Loca l 1733. The m otion alleg es that goo d cause e xists for recu sal, becaus e there is a rea sonable basis to
question impartiality . See Rules of the Supreme Court of Tennessee, Rule 10, Canon 3E Disqualification.

        It is highly unlikely that the “conference with attorneys” occurred in open cour t. Neither this Court, the
members of the union, nor the public at large have any knowledge of what “reasons were stated in the conference” that
warrants a denial of the motion. We find nothing to justify wh y such a se rious cha rge was not fully aired in a p ublic
                                                                                                          (continu ed...)

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                        IT IS, THEREFORE, ORDERED, ADJUDGED, AND
                   DECREED:

                   1. That the Motion to Dismiss and the Motion to Dissolve
                   Temporary Injunction are hereby denied;

                   2. That the Temporary Injunction shall remain in effect until
                   November 22, 1999 provided there is compliance with this Order; and

                   3. That the Temporary Injunction shall be dissolved if a special
                   meeting of the Board is held on November 20, 1999 beginning at
                   9:00 a.m. to decide whether to retain Dorothy Crook as Executive
                   Director and at said meeting, Plaintiff, Defendant Alexander, Ms.
                   Crook, and any members of the board shall be heard on the issue and
                   the general members shall be notified of the meeting at least two (2)
                   weeks before this meeting and the membership shall have the right to
                   attend this meeting.

                   4. The decision of the Board will be dispositive of the issue of
                   retention or dismissal of Dorothy Crook, but not as to other issues in
                   the case.

      On October 29, 1999, the court entered a “Supplemental Order on Motion to Dismiss and
Motion to Modify Temporary Injunction,” which provides:

                          This cause came on to be heard in camera on October 28,
                   1999 before the Hon. Walter L. Evans, Chancellor, upon defendants’
                   oral motion to clarify the Court’s Order on Motion to Dismiss and
                   Motion to Modify Temporary Injunction, entered October 12, 1999,
                   statement of counsel, and the entire record in this cause; and the
                   Court found clarification would be helpful and proper. The
                   defendants asked the Court if the order made a re-vote by the
                   executive board to retain or dismiss the executive director required or
                   optional. The Court stated that the re-vote was required by the Court
                   because the Court was of the opinion that advance notice of the
                   possibility of termination was not given to the executive board and
                   the executive director and that the vote to terminate was close.



         1
          (...continued)
hearing. This Court has previously commented concerning the perils of in-chambers conferences and the decisions
made by such conferences. See Warren v. Warren, 731 S.W.2d 908 (Tenn. Ct. App. 1985). Needless to say, the
allegations of partiality on the part of a judge casts an undesirable reflection upon th e judiciary and sho uld requ ire a full
hearing in open court.

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                        IT IS, THEREFORE, ORDERED, ADJUDGED AND
                DECREED that the Order on Motion to Dismiss and Motion to
                Modify Temporary Injunction, entered October 12, 1999, is properly
                interpreted to mean that the executive board is required to re-vote on
                the issue of whether the executive director is to be retained or
                dismissed.

Defendants were granted an extraordinary appeal pursuant to Rule 10 Tenn. R. App. P. and present
for review two issues, as stated in their brief:

                1. Whether the chancery court erred by impermissibly interfering in
                the government of the local union by requiring a “re-vote” of a
                decision of the executive board to terminate the executive director?

                2. Whether the chancery court erred by imposing specific elements
                of process as a condition precedent to firing an at-will employee?

       At the conclusion of oral argument counsel for appellants requested permission to
demonstrate to the court that it had the power to dispose of the entire case as part of this
extraordinary appeal. Parties were allowed ten days to file supplemental briefs on a third issue:

                3. Whether on extraordinary appeal of the order of the chancellor
                mandating a re-vote of the executive board of a decision to terminate
                the executive director, this Court has the power to dispose of the
                entire case.

        Although the issues as framed by defendants will be discussed, we perceive that the
dispositive issue is whether the chancellor erred in denying dissolution of the injunction and
dismissing the action.

        As a general rule, a member of a labor union is not entitled to judicial relief from the decision
of a local officer of tribunal of the union which settles a controversy adverse to him or her until the
member exhausts remedial procedures within the union. Haynes v. United Chemical Workers, CIO,
190 Tenn. 165, 228 S.W.2d 101 (1950). See also Bryan v. International Alliance, 43 Tenn. Ct.
App. 180, 306 S.W.2d 64 (1957). However, the courts may intervene where the union’s own
procedures have not been followed. Coke v. United Transportation Union, 552 S.W.2d 402 (Tenn.
Ct. App. 1977).

        In the instant case, there is nothing in the union’s constitution providing for a re-vote as
ordered by the chancellor. The chancellor’s order for a re-vote, if allowed to stand, would in effect
alter the union’s internal procedures, and such an intrusion is not warranted by the record in this
case. We note, however, that the chancellor’s ruling implicitly accepts the union’s ruling that there
is no requirement for a general membership vote as initially claimed by Mr. Dowdy. It is undisputed


                                                  -7-
in this record that the executive board acted within its authority in its dismissal of Ms. Crook, and
the record reflects no justification for the court’s intrusion into the union’s affairs.

       Mr. Dowdy maintains that if the Court should decide that the chancellor exceeded his
authority in ordering a re-vote, that the case should be remanded for further proceedings in the trial
court. We disagree with that reasoning. The original complaint seeks an injunction to enjoin
defendants from removing Ms. Crook and from filling the executive director position until the
general membership is allowed to vote and until such time as the international union addresses the
charges filed against Willie Joe Alexander and others arising out of the removal of Ms. Crook. The
order granting the temporary injunction provided that the proceedings in the case would be held in
abeyance until a determination is made by the international union on matters regarding the discharge
of Dorothy Crook. A determination has now been made by the international union which is
undisputed in the record that the general membership is not authorized to vote on this matter and that
Ms. Crook’s termination was in accord with the union’s rules. It is time for the Court’s interference
with the union’s internal affairs to terminate.

       Accordingly, the order of the trial court is vacated. The motion to dissolve the injunction is
granted, and the complaint is dismissed. Costs of the appeal are assessed against the plaintiff, Alfred
Dowdy and his surety.

                                               __________________________________________
                                               W. FRANK CRAWFORD, PRESIDING JUDGE, W.S.




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