UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

C. DAVID FORINASH; C. WAYNE
PIGOTT; MELVIN W. SWIGER; WILLIAM
GAYNOR; PAUL Z. BOWMAN, II;
ROGER F. FREDERICK; BERNARD R.
RIDDLE; RICHARD W. BARTLETT;
MARK MURPHY; HAROLD MCCRAY;
RAY L. SNYDER; EDDIE JONES; DAVID
HUNT; GARY CARR; ROBERT F. LOAR;
JEFFREY C. CUPPETT; DANNY PAUGH;
DAVID P. AKERS; LEROY DUMM, on
behalf of themselves and
approximately 500 additional "C"
Book Members of Local No. 132,
                                                             No. 96-1275
International Union of Operating
Engineers,
Plaintiffs-Appellants,

v.

INTERNATIONAL UNION OF OPERATING
ENGINEERS, LOCAL NO. 132,
Defendant-Appellee,

and

INTERNATIONAL UNION OF OPERATING
ENGINEERS, AFL-CIO-CLC,
Defendant.

Appeal from the United States District Court
for the Southern District of West Virginia, at Charleston.
Dennis Raymond Knapp, Senior District Judge.
(CA-94-1110)

Argued: October 28, 1996

Decided: August 16, 1999
Before WIDENER and ERVIN, Circuit Judges,
and BULLOCK, Chief United States District Judge
for the Middle District of North Carolina,
sitting by designation.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

ARGUED: Harold Martin Sklar, MCNEER, HIGHLAND,
MCMUNN & VARNER, L.C., Clarksburg, West Virginia, for Appel-
lants. Lafe Compton Chafin, BARRETT, CHAFIN & LOWRY, Hun-
tington, West Virginia, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

This appeal presents issues regarding the internal procedures of the
International Union of Operating Engineers, Local No. 132. Nineteen
named plaintiffs brought suit on behalf of themselves and almost 500
additional C Branch members of Local 132 claiming the defendant,
Local 132, had violated their rights as protected under the Labor Man-
agement Reporting and Disclosure Act ("LMRDA"), 29 U.S.C. § 411.
The plaintiffs asserted that C Branch members were excluded from
running as candidates for the Local 132 Executive Board in violation
of the union constitution and bylaws as a result of a misrepresentation
by the Assistant Business Manager of Local 132. Additionally, plain-
tiffs asserted that the format of the ballot in a May, 1994 dues referen-
dum contravened their right under 29 U.S.C. § 411(a)(3)(A) to a vote

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by union members as to dues increases. The district court found that
it possessed jurisdiction to consider a violation of 29 U.S.C. § 411
and granted the defendant's motion for summary judgment. We
affirm.*

Defendant Local 132 is a labor organization representing roughly
2,300 operating engineers and is constituted of five branches or
books. The three branches relevant to this appeal are the C Branch,
the B Branch and the Parent Body, whose respective memberships are
roughly: C Branch, 475; B branch, 1,375; and Parent Body, 470. An
RA Branch has 22 members and a 132D Branch has 2 members. Nei-
ther RA nor D Branches are involved here.

The parties do not dispute that the members of the smaller C
Branch, employed by a single employer, earn on average significantly
more than B Branch members, who engage in more varied and spo-
radic employment. Parent Body members are B Branch members who
have requested the honorary status of Parent Body and for that have
paid an additional initiation fee. They are treated the same in all
respects as are B Branch members. The district court found that his-
torically the Parent Body and B Branch members "have borne the
financial burden of the defendant for years and that during prior
_________________________________________________________________
*This case was tried on the theory pleaded by the plaintiffs and
accepted by the defendants, that it was brought for a claimed violation
of 29 U.S.C. § 411, which provides in pertinent part that an increase in
union dues shall only be after a majority vote by secret ballot of the
members in good standing. The urging of the plaintiffs to remove the
Executive Board of Local 132 was in connection with that Executive
Board making up the ballot without authority to do that or any like action
because the plaintiffs, or some of them, had been told by the Assistant
Business Manager of Local 132 that C Branch members could not hold
office in the Local union. The principal object of the suit was to set aside
the vote with respect to raising C Branch dues. The removal of the Exec-
utive Board was sought only in connection with the question of raising
dues.

Had the object of the suit been to remove the officers, a persuasive
argument might well have been made that, under the dictum in Furniture
Moving Drivers v. Crowley, 467 U.S. 526 (1984), the court would have
had no authority to proceed with the case at the instance of the plaintiffs,
the Secretary of Labor being entrusted with that chore.

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financial `hard times,' these two groups saw their assessments esca-
lated." Plaintiff C Branch members counter that they do not use the
hiring hall and facilities of the Local to the same extent as B Branch
members, although both are open to them.

The record is clear that prior to the 1994 referendum at issue, the
non-C Branch members paid dues that increased from $11 per month
plus 1% of gross wages in 1981 to $12 and 5% in 1986. In that same
period the dues of C branch members rose from $5 per month to
$12.75. The Local claims that increase was solely due to the Interna-
tional's increase in the minimum per capita assessments.

Throughout the events at issue the constitution of the International
Union of Operating Engineers and the bylaws of Local 132 governed
the operation of the defendant's internal affairs. Despite the different
assessments noted above, the district court found that all the members
of the Local received equal treatment under the constitution of the
International Union and the bylaws of the Local. Under the language
of both documents the district court found no distinction between the
branch members regarding members' right to vote on issues presented
to the membership, their opportunity to nominate candidates, or their
eligibility for union office.

The plaintiffs presented affidavits from approximately 13 members
of the union that on or about April 24, 1994 Bruce Tarpley, the assis-
tant business manager of the Local, informed them that C book mem-
bers were unable to run for and hold office as members. Based on this
the plaintiffs claimed "it has historically and consistently been the
practice of Local 132 by and through the actions of its representatives
and members of its Executive Board, to preclude C book members
from seeking and holding office in the Executive Board." By affidavit
Tarpley has denied making any such statement.

It is apparently agreed that prior to April 24, 1994, the Local's
Executive Board called three special meetings to vote on proposals to
increase the dues of C Branch members. Two of the three meetings
involved the members of all the branches, while the third involved
just C Branch members. At each the proposal was defeated.

In April of 1994 the Executive Board decided to conduct a secret-
ballot mail referendum regarding the restructuring of union dues. The

                    4
referendum presented the single question for each member to cast a
single vote for or against a proposal imposing both an increase in C
Branch member dues and a net decrease in B Branch and Parent Body
member dues. The referendum proposed restructuring the dues by
raising the basic monthly dues from $12 to $13 dollars while decreas-
ing the monthly percentage from 5% to 4% for non-C Branch mem-
bers. Under the proposal C Branch members would experience an
increase in dues from $12.75 to $20 and an assessment of 1% per
month of gross wages, with the exception that C branch members
earning less than $10 per hour would not be assessed the 1%. The ref-
erendum was mailed to all eligible members and subsequently passed
with 801 members supporting it and 676 opposing.

Due to the single question of the ballot, C Branch members refused
to pay the dues. The C Branch members apparently wrote and phoned
the Local and International in an attempt to appeal the referendum
within the union structure.

On both of the issues presented on appeal, that is to say the failure
of the district court to remove the executive board from office
because of the claim of C Branch members that they had been
excluded from running for office, and the refusal of the district court
to upset the vote on the restructuring of dues, we affirm the judgment
of the district court for the reasons expressed in its written opinion.
Underlying the decision of the district court is the following summary
from its opinion, with which we agree:

          This Court believes that it is for the membership of the
          Defendant to determine the amount of dues they are to pay
          and the salary or wages of Defendant's representatives and
          employees. The Court in Gurton v. Arons, 339 F.2d 371, 58
          LRRM 2080 (2d Cir. 1964) stated:

          The provisions of the L.M.R.D.A. were not
          intended by Congress to constitute an invitation to
          the courts to intervene at will in the internal affairs
          of unions. Courts have no special expertise in the
          operation of unions which would justify a broad
          power to interfere. The internal operations of
          unions are to be left to the officials chosen by the

                     5
          members to manage those operations except in the
          very limited instances expressly provided by the
          Act. The conviction of some judges that they are
          better able to administer a union's affairs than the
          elected officials is wholly without foundation.
          Most unions are honestly and efficiently adminis-
          tered and are much more likely to continue to be
          so if they are free from officious intermeddling by
          the courts. General supervision of unions by the
          courts would not contribute to the betterment of
          the unions or their members or to the cause of
          labor-management relations.

          The Court finds that the proposal adopted by the execu-
          tive board of the Defendant and the ballot utilized in May
          1994 set forth a single issue involving dues restructuring.
          Further, there is no evidence that Defendant's members
          were mislead, confused or not fully informed of the dues
          restructuring as set forth on the ballot.

          Plaintiffs have requested as relief the removal of the pres-
          ent executive board and a mandate for a new election to
          invalidate the dues votes of May, 1994. The Court denies
          Plaintiffs' request and hereby finds that as a matter of law,
          Plaintiffs' motion for summary judgment should be denied
          and Defendant Local's motion for summary judgment be
          granted. The Court further finds that the May referendum
          was valid and that Local 132 be left to handle its business
          and its internal operations as usual.

The judgment of the district court is accordingly

AFFIRMED.

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