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

                                                                            FILED
                                                                        December 31, 2008

                                     No. 08-20311                     Charles R. Fulbruge III
                                   Summary Calendar                           Clerk


MARK S. KESSINGER

                                                  Plaintiff - Appellant
v.

NATIONAL ASSOCIATION OF LETTER CARRIERS, LOCAL 283

                                                  Defendant - Appellee



                   Appeal from the United States District Court
                        for the Southern District of Texas
                              USDC No. 06-CV-1473


Before HIGGINBOTHAM, BARKSDALE, and ELROD, Circuit Judges.
PER CURIAM:*
       Mark Kessinger is a United States Postal Service employee and a member
of the Local 283 branch of the National Association of Letter Carriers. The local
by-laws of Branch 283 provide for elected shop stewards. For many years,
Kessinger was elected, and by virtue of obtaining the most votes, served as chief




       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
                                       No. 08-20311

shop steward. One of Kessinger’s responsibilities as chief shop steward was
processing member’s grievances.1
       In 2002, Kessinger ran for branch president, but was beaten by Patsy
Grace. As branch president, Grace stripped Kessinger of the title of chief shop
steward and appointed a different shop steward to handle grievance processing.
Grace justified her action by pointing out the 300-grievance backlog that
Kessinger had amassed, many of which were not meritorious.                          After his
demotion, Kessinger remained in his elected shop steward position, maintaining
his other shop steward responsibilities.
       Kessinger brought suit against Branch 283 and the National Association
of Letter Carriers alleging that they violated his free speech and due process
rights under the Labor Management Reporting and Disclosures Act.2
Specifically, Kessinger alleges that Grace retaliated against his free-speech
exercise of running for president by stripping him of his grievance processing
responsibilities and that the deprivation was without the due process required
under the LMRDA. After Kessinger presented his case to a jury, Defendants
made a Rule 50 motion for judgment as a matter of law, which the district court
granted. Kessinger now appeals.
       Kessinger contends essentially two points of error. First that he put
forward sufficient evidence to present a question to the jury on whether Grace
retaliated against him for exercising his free speech rights protected by the
LMRDA; and second, that he put forth sufficient evidence to present a question
to the jury on whether his due process rights were violated when he was


       1
         A shop steward’s role in grievance processing includes receiving complaints from letter
carriers, determining if a grievance exists, conducing an investigation to develop a record, and
presenting the grievance to management.
       2
        29 U.S.C. § 401 et seq. Section 411 is the Bill of Rights of Members of Labor
Organizations and protects the free speech, (a)(2), and due process, (a)(5), rights of members.


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“otherwise disciplined” without written notice, time to prepare a defense, and a
hearing.3 We review the grant of a Rule 50 motion de novo and only affirm the
grant if “a party has been fully heard on [the] issue and there is no legally
sufficient evidentiary basis for a reasonable jury to find for that party on that
issue.”4
      We AFFIRM because Kessinger’s claims are legally deficient. In Finnegan
v. Leu,5 the Supreme Court held that discharge of a union’s appointed business
agent by the union president does not violate the LMRDA. In interpreting the
statute, the Court drew a distinction between union members and a union’s
appointed employees, wherein only the former are protected from arbitrary
action by the union or its officers, who thereby retain the ability to “choose a
staff whose views are compatible with [their] own.”6                 This case is
indistinguishable from Finnegan. As in Finnegan, Branch 283's by-laws give
Grace, as branch president, the responsibility for and authority to delegate the
chief steward title and grievance process responsibilities.            Accordingly,
Kessinger’s LMRDA claim hinges on the loss of an appointed position; because
Finnegan teaches that the LMRDA is “not concerned with perpetuating




      3
          See 29 U.S.C. § 411(a)(5).
      4
         Hagan v. Echostar Satellite, LLC, 529 F.3d 617, 622 (5th Cir. 2008) (quoting
Fitzgerald v. Weasler Engineering, Inc., 258 F.3d 326, 337 (5th Cir.2001)).
      5
          456 U.S. 431, 438-42 (1982).
      6
          Id. at 441.

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appointed union employees in office at the expense of an elected president’s
freedom to choose his own staff,”7 his claims fail, both in regards to their merits
and the process due.8 AFFIRMED.




       7
           Id. at 442.
       8
         In Sheet Metal Workers’ International Assoc. v. Lynn, 488 U.S. 347 (1989), the
Supreme Court distinguished a union’s elected business agents, who are protected under the
LMRDA, from appointed business agents, who are not protected under the Finnegan holding.
Finnegan, and not Lynn, controls in this case because under Branch 283's by-laws, Kessinger’s
chief shop steward title and grievance responsibilities were appointed; he maintained his
elected shop steward position.

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