More Legal Decisions

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We reported out in the December, 2009 edition of this newsletter a United States Court of Appeals 6th Circuit decision overturning a Temporary Restraining Order (TRO) and a preliminary injunction to stop a merger between the United Transportation Union (UTU) and the Sheet Metal Workers International Association (SMWIA). Paul Thompson, then President of the UTU, had proposed the merger, which was ultimately approved by the membership with only a small percentage of members voting. During the course of this litigation Malcolm Futhey succeeded Thompson as UTU President. But Futhey opposed the merger. A number of elected International Vice Presidents, comprising a voting majority of the UTU's Board of Directors, which supported the merger, joined the litigation to overturn the TRO and preliminary injunction against the merger. In response, Futhey and the UTU Executive Board brought these International Vice Presidents up on charges, and after an internal trial they were expelled from the union in July 2009.

Futhey and his Executive Board justified the officers' expulsion by holding that elected International Vice Presidents are under oath to carry out the directives of the UTU President, that they have to exhaust the UTU appeals process before they can take the union to court, that these officers misinterpreted their authority under the UTU constitution, which only the UTU President has the authority to interpret, and that they took money from the SMWIA to pursue litigation against the UTU and in doing so failed to fulfill their fiduciary duty and oath of loyalty.

In February 2010, the International Vice Presidents went to federal district court to get a preliminary injunction against the UTU to stop their expulsion. They successfully argued that Futhey and the UTU violated their rights to free speech and to freely participate in litigation, which are guaranteed under the LMRDA. The UTU then appealed to the 6th Circuit and in its August, 2010 decision in Babler v. Futhey, the 6th Circuit upheld the injunction against the UTU stopping the expulsions.

The 6th Circuit upheld the injunction because it found that the VPs, Babler and his co-plaintiffs, were likely to prevail on the merits of their free speech and right to sue claims, because the language that the UTU's Executive Board used in justifying their expulsion was basically that the expelled officers supported the SMWIA merger. Futhey and the UTU argued that the Supreme Court had upheld the expulsion of appointed officers for disagreeing with union leadership. But Babler and the VPs cited a Supreme Court case that distinguished the expulsion of elected officers because union democracy would be thwarted if members concluded from the expulsion of officials that they voted for that they would be in peril for challenging the union hierarchy.

The court also looked at the UTU constitution and concluded that reasonable arguments could be made that the UTU President shared power with the Board of Directors on the issue of mergers and the interpretation of the laws of the organization. In addition to establishing that plaintiffs are likely to prevail on the merits, a court must determine whether failure to grant a preliminary injunction would result in irreparable harm to plaintiffs (the V.P.s) and substantial harm to others and the public interest. In affirming the district court's granting of a preliminary injunction, the 6th Circuit acknowledged that a preliminary injunction would do harm to the legitimacy of UTU's governance structure. But the court ruled that a greater harm would be done to the International V.P.s, the union members who supported the merger and the public interest in union democracy if the UTU were allowed to violate the LMRDA guarantees of free speech and the right to sue.

It is disappointing that that the UTU hierarchy, which understood so well how their predecessors denied the membership a meaningful vote in the merger referendum, would then use a legitimate difference of opinion over the UTU constitution and the merger issue to expel elected representatives of the membership, thereby casting a pall over freedom of speech (not only of these officers, but over the members who elected them and those who had voted for the merger). Union democracy is a principle that both sides of this dispute should hold sacred.