Pharamond Conille v. COUNCIL 93, American Federation of State, County

United States Court of Appeals
For the First Circuit
No. 18-1252
PHARAMOND CONILLE; YVES RIGAUD; MICHELET AUGUSTE;
LOCAL 402, American Federation of State, County and
Municipal Employees; JACQUES LARAQUE; GUY RAPHAEL; JEAN LOUIS;
JAMES SHEA; ELGA BERNARD; HODELIN AUBOURG; GABRIEL BERNARD;
VERLEEN LEWIS; CARMESUZE MICHAUD; KALLOT JEAN-FRANCOIS;
MONIQUE MODAN; JOSEPH BERLUS; MARIE AVELINE FORTUNAT;
VALENTINE DUBUISSON; FRANCHETTE DORSAINVIL; SALLY ROGERS;
STANLEY SIENKIEWICZ; YVONNE VASSELL,
Plaintiffs, Appellants,
v.
COUNCIL 93, American Federation of State, County and
Municipal Employees; AMERICAN FEDERATION OF STATE, COUNTY
AND MUNICIPAL EMPLOYEES,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. William G. Young, U.S. District Judge]
Before
Torruella, Lipez, and Kayatta,
Circuit Judges.
Mark D. Stern, with whom Mark D. Stern P.C. was on brief, for
appellants.
Paul F. Kelly, with whom Sasha N. Gillin and Segal Roitman,
LLP were on brief, for appellees.

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August 19, 2019
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TORRUELLA, Circuit Judge. Plaintiffs-appellants, Local
402 and its Vice President, Pharamond Conille ("Conille"), appeal
from the district court's findings, after a bench trial, that Local
402 never requested to appeal its deactivation to the International
Executive Board ("IEB") and that it failed to prove that it was
deactivated in retaliation for having exercised its free-speech
rights. Because we find that Local 402 did request an appeal to
the IEB, we reverse the district court's judgment and remand the
case for an internal appeal to the IEB.
I. Background 1
The American Federation of State, County and Municipal
Employees ("AFSCME") is an international labor union affiliated
with the American Federation of Labor and Congress of Industrial
Organizations ("AFL-CIO"). 2 AFSCME is the parent of Council 93,
an intermediate union body representing approximately 36,000
workers employed by public and private employers in Massachusetts,
Maine, New Hampshire, and Vermont. Council 93's representation
is broken down into thirteen geographic and organizational
1 We summarize the relevant facts, reserving for our analysis a
more detailed discussion of the facts relevant to each issue
presented on appeal.
2 The union structure is multi-layered. AFL-CIO, which has no
role in this case, is the parent of AFSCME. Councils are created
by AFSCME to coordinate activities among the locals, which are the
smallest component parts of the union.

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legislative districts, which include the Massachusetts Department
of Developmental Services ("DDS"). As an affiliate of Council 93,
Local 402 was chartered in 1953 to represent the DDS employees
working at the Fernald State School ("Fernald") in Waltham,
Massachusetts. 3
In the early 1990s, Massachusetts began to
deinstitutionalize mental health patients and place them into
community-based residential facilities. As a result, petitions
were filed to amend the jurisdiction of some local unions to cover
community-based facilities. Massachusetts announced its plan to
close Fernald in 2003.
In November 2011, Conille, Local 402's Vice President,
was elected to serve as a DDS representative on Council 93's
Executive Board, a position to which he was reelected in 2015.
During this time, Conille fought to reform the disproportionate
representation of Local 402 members on the Executive Board,
inquired about the lack of racial minorities on the Executive
Board, and advocated for racial minorities within the union.
3 Prior to 1986, the Massachusetts Department of Mental Health
was responsible for the operation of Fernald, and, as such, was
the employer of Local 402's members. In 1986, the Department of
Mental Health was split into two Departments when Massachusetts
created the Department of Mental Retardation, which changed its
name to the Department of Developmental Services in 2009.

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In March 2017, Pat Glynn, the Director of Strategic
Planning for Council 93, requested that Local 402 be deactivated
because "[t]here [were] no employees working within the
jurisdiction of Local 402" after Fernald officially closed earlier
that year. 4 In response, Local 402's President, Raymond McKinnon
("McKinnon"), wrote to a number of people, including AFSCME's
President, Lee Saunders ("Saunders"), to stop the deactivation.
He also sent a cease and desist letter to Council 93's Executive
Director, Frank Moroney ("Moroney"), and filed charges with
AFSCME's Judicial Panel for allegedly interfering with Local 402's
ability to serve its members. In addition to McKinnon's efforts,
Conille attempted to revise Local 402's charter to include
additional worksites but was unsuccessful.
4 Local 402 argues that the district court clearly erred in
finding that Fernald had closed in 2017 and claims, instead, that
it closed in 2014. The record, however, contains evidence that
"Fernald Center's last resident was discharged on November 13,
2014, [but] the skilled nursing facility that was thereafter
operated on the same grounds[ ] closed at the end of February[ ]
2017 [and that] [t]hese employees now work under the jurisdiction
of other AFSCME local unions." The record also contains an
affidavit submitted by Conille in support of a motion for partial
summary judgment, in which he stated that "[i]n February 2017 the
relocation of employees from the central Fernald facility to
[community-based residential facilities] was complete, and no
Local 402 member worked at what had been up to that date the
central Fernald complex." In light of this evidence, the district
court's factual finding is not clearly erroneous and thus will not
be disturbed.

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Saunders made the decision to deactivate Local 402 on or
about May 30, 2017. On June 2, 2017, AFSCME sent an order to
Local 402 to return its funds and property. In response, on
June 7, 2017, Local 402's legal counsel, Mark Stern ("Stern"),
sent a letter challenging Saunders's decision and requesting that
the deactivation be rescinded. AFSCME declined to acquiesce,
stating that its decision to deactivate Local 402 was made in
accordance with AFSCME's constitution. On June 12 or 13, 2017,
the IEB ratified Saunders's decision to deactivate Local 402.
Following deactivation, members of Local 402 were
transferred to Local 646 or Local 1730. Conille was transferred
to Local 646. At the next Council 93 Executive Board meeting,
Conille was notified that he would no longer sit as a
representative of Local 402 because this local had been deactivated
and he was now a member of Local 646. Furthermore, Local 646
already had a representative on the Executive Board.
On August 14, 2017, Conille and eighteen other members
of Local 402 ("Local 402" collectively) filed suit against Council
93 and AFSCME ("Council 93" collectively). In the amended
complaint filed on September 8, 2017, Local 402 alleged that:
(1) Local 402 was denied equal voting rights as guaranteed under
the AFSCME constitution and the Labor Management Reporting and

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Disclosure Act ("LMRDA") 5 (Count I); (2) Local 402's deactivation
violated Article IX, Section 35 of the AFSCME constitution
(Count II); and (3) Local 402 was deactivated as a retaliatory
measure for Conille's free speech (Count III). Council 93
counterclaimed, asserting that Local 402 failed to return its
assets, bank accounts, and records as required under its
constitution following deactivation.
On September 22, 2017, Local 402 filed a motion for
partial summary judgment on Counts I and II, which Council 93
opposed. The district court denied summary judgment as to Count
I because it found that there was a genuine issue of material fact
regarding the alleged "defects in the proportional voting" system
implemented. As to Count II, the court held that Council 93's
interpretation of AFSCME's constitution -- that is, that what had
occurred was a deactivation of Local 402 under Article V, Section
6 and not a merger or consolidation under Article IX, Section 35
as Local 402 contended -- was reasonable, and thus, the court would
defer to Council 93's interpretation. The district court,
however, clarified the scope of its decision by stating, "all I
decided, in deciding summary judgment against [Local 402] on Count
2, was that the interpretation[] of the [AFSCME] [c]onstitution,
5 29 U.S.C. §§ 401 et seq.

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as advanced by the Council, was reasonable and . . . therefore the
Court ought defer to it." As a result, the court left the question
of Local 402's alleged wrongful deactivation for trial but decided
it would defer to AFSCME's interpretation of its constitution --
that Article V, Section 6, governed their breach of contract claim.
A two-day bench trial took place on October 26-27, 2017.
The district court issued its ruling from the bench on
December 4, 2017. The court found in favor of Local 402 as to
Count I, noting that the disproportionate representation on
Council 93's Executive Board was not reasonable under Title I of
the LMRDA. It, however, ruled in favor of Council 93 as to both
Counts II and III. 6 The district court devoted almost the entirety
of its bench ruling to the disproportionate representation of
Council 93's Executive Board. As to the remaining counts, the
court merely stated that Local 402 failed to persuade the court
that it was entitled to judgment in its favor. The court stated
that it would "supplement its order with more detailed findings
and rulings." It then entered judgment.
On December 14, 2017, Council 93 filed a motion to amend
judgment pursuant to Fed. R. Civ. P. 59(e), requesting that the
6 The court also dismissed Council 93's counterclaim. The court
found the counterclaim "moot because [Local 402 had] already agreed
at trial to return the funds."

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court enter judgment for Council 93 as to its counterclaim. On
December 20, 2017, Local 402 filed its own post-judgment motion.
The district court "denied" both parties' post-judgment motions on
December 22, 2017, stating that, "[a]s this [c]ourt has already
explained, a full memorandum of decision will [be] enter[ed]
pursuant to Fed. R. Civ. P. 52. These motions are more properly
addressed as motions to enforce the judgment."
Thereafter, on January 2, 2018, Council 93 appealed from
the district court's decision on Count I and its dismissal of
Council 93's counterclaim. 7 On January 5, 2018, Local 402
requested an open-ended extension of time to appeal until the
district court had provided the promised findings of facts and
conclusions of law. The district court granted the motion on
January 8, 2018. While still waiting for the district court to
issue its findings of fact and rulings of law, Local 402 filed its
notice of appeal on March 22, 2018.
On May 15, 2018, the district court supplemented its
oral decision with additional findings of fact and rulings of law.
It held that Local 402 had not properly appealed its deactivation
to the IEB, and that it had failed to prove that it was deactivated
in retaliation for Conille's criticism of Council 93's Executive
7 That appeal is currently pending before this court. See Appeal
No. 18-1038.

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Board. After the district court issued its findings and rulings,
Local 402 filed an amended notice of appeal on June 6, 2018.
II. Discussion
A. Timeliness of the Notice of Appeal
Council 93 claims that this court lacks jurisdiction to
entertain this appeal because Local 402 filed an untimely notice
of appeal.
"This court must verify that it has appellate
jurisdiction before addressing the merits of any appeal."
United States v. Santiago-Colón, 917 F.3d 43, 49 (1st Cir. 2019)
(citing Espinal-Domínguez v. Puerto Rico, 352 F.3d 490, 495
(1st Cir. 2003)). "Jurisdiction is a question of law subject to
de novo review." Id. (quoting United States v. W.R. Grace,
526 F.3d 499, 505 (9th Cir. 2008)).
"To secure appellate review of a judgment or order, a
party must file a notice of appeal from that judgment or order."
Manrique v. United States, 137 S. Ct. 1266, 1271 (2017).
Generally, parties must file notices of appeal in civil cases
within 30 days of the entry of the judgment. Fed. R. App. P.
4(a)(1)(A).
On December 20, 2017, Local 402 filed a timely motion to
amend the judgment under "Rules 59(e) and 60(b)(6)" of Federal
Civil Procedure. In this motion, Local 402 raised Rule 52

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concerns, noting, "the record shows that . . . [the district court]
made absolutely no findings of fact or rulings of law, as required
by F.R.Civ.Pro, Rule 52(a)(1)" as to any counts besides Count I. 8
Local 402 argues that this motion should be construed as one under
Rule 52(b), which provides that "[o]n a party's motion filed no
later than 28 days after the entry of judgment, the court may amend
its findings -- or make additional findings -- and may amend the
judgment accordingly. The motion may accompany a motion for a new
trial under Rule 59." Fed. R. Civ. P. 52(b). We agree.
Though Local 402 titled its motion as one under Rule
59(e) and Rule 60(b)(6), not Rule 52(b), nomenclature is not
controlling. See, e.g., Parisie v. Greer, 705 F.2d 882, 896-97
(7th Cir. 1983) (Swygert, J., dissenting) (collecting cases). By
discussing Rule 52 and requesting that the district court make
additional findings, Local 402 made a valid Rule 52(b) motion.
Moreover, the district court appeared to construe Local
402's motion as arising under Rule 52(b). Although on December 22,
8 Fed. R. Civ. P. 52(a)(1) states that,
[i]n an action tried on the facts without a jury or
with an advisory jury, the court must find the facts
specially and state its conclusions of law separately.
The findings and conclusions may be stated on the
record after the close of the evidence or may appear
in an opinion or a memorandum of decision filed by
the court. Judgment must be entered under Rule 58.

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2017, the district court stated that it was denying Local 402's
motion to amend the judgment, it also stated, "[a]s this Court has
already explained, a full memorandum of decision will enter
pursuant to Fed. R. Civ. P. 52." Local 402 argues this order
granted partial relief and deferred disposition of its Rule 52(b)
motion. It is clear from the order that the district court did
not deny Local 402's implicit Rule 52(b) motion nor did it fully
resolve it. Accordingly, we hold the district court's order
delayed final disposition of Local 402's implicit Rule 52(b) motion
until the court issued its findings of fact and rulings of law in
its May 15, 2018 memorandum of decision.
Pursuant to Fed. R. App. P. 4(a)(4)(A)(ii), the time for
Local 402 (or Council 93) to file an appeal ran from the entry of
the order disposing of the Rule 52(b) motion. See Fed. R. App.
P. 4(a)(4)(A) ("If a party files in the district court any of the
following motions under the Federal Rules of Civil Procedure --
and does so within the time allowed by those rules -- the time to
file an appeal runs for all parties from the entry of the order
disposing of the last such remaining motion: . . . (ii) to amend
or make additional factual findings under Rule 52(b), whether or
not granting the motion would alter the judgment."). Therefore,
Local 402 had thirty days from May 15, 2018, when the district

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court issued its memorandum of decision disposing of Local 402's
implicit Rule 52(b) motion, to file an appeal.
Per Fed. R. App. P. 4(a)(4)(B)(i), Local 402's notice of
appeal -- filed on March 22, 2018, before the district court's
disposition of Local 402's Rule 52(b) motion -- became effective
on May 15, 2018. See Fed. R. App. P. 4(a)(4)(B)(i) ("If a party
files a notice of appeal after the court announces or enters a
judgment -- but before it disposes of any motion listed in Rule
4(a)(4)(A) -- the notice becomes effective to appeal a judgment or
order, in whole or in part, when the order disposing of the last
such remaining motion is entered."). Local 402's amended notice
of appeal, filed on June 6, 2018, was also within thirty days of
May 15, 2018, when the district court issued its decision disposing
of Local 402's Rule 52(b) motion. Therefore, Local 402's appeal
is timely. 9 Finding no jurisdictional bar, we now turn to the
merits of this appeal.
9 In addressing the timeliness of Local 402's notice of appeal,
the parties also focused on the validity of the district court's
grant of Local 402's January 5, 2018 motion for an open-ended
extension of time to file a notice of appeal. Because we find,
however, that Local 402's notice of appeal was timely, regardless
of the propriety of the district court's grant of Local 402's
January 5, 2018 motion, we need not address those alternative
arguments.

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B. Deactivation of Local 402
In Count II of its complaint, Local 402 alleged that it
had been denied a procedural right, embodied in the AFSCME
constitution, to appeal its deactivation. In dismissing this
claim, the court found -- without expressing any opinion as to
Local 402's right to an appeal -- that the evidence presented at
trial failed to show that Local 402 had ever requested a formal
appeal.
The district court identified several instances in which
Local 402 claimed it requested an appeal. First, in April 2017,
after Council 93's Assistant Executive Director, Mark Bernard
("Bernard"), informed Conille of Council 93's recommendation to
deactivate Local 402, Local 402's President, McKinnon, wrote to
the AFSCME President, Saunders, asking him to reject the
recommendation to deactivate Local 402 and requesting "an
opportunity to meet with [Saunders] directly, or with a personal
representative." Second, in early May 2017, McKinnon sent a
"cease and desist" letter to the Executive Director of Council 93,
Moroney, asking that he stop the deactivation process. Third, in
late May 2017, McKinnon filed charges with the AFSCME International
Judicial Panel against Bernard and Council 93 for allegedly
interfering with Local 402's ability to serve its members "through
its elected [officers]." The district court found these

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communications did not constitute a formal request to appeal Local
402's deactivation.
The court further noted Conille's testimony that his
attorney, Stern, had sent a letter to AFSCME on June 7, 2017,
requesting that the IEB review Local 402's deactivation which,
according to Conille, also constituted a request for appeal to the
IEB. According to the court, the letter stated, "[i]f the [AFSCME]
President and [the International] Executive Board ever issue . . .
a [deactivation] notification, be assured that [Local 402] will
exercise the right to appeal for a hearing before the [IEB]."
Yet, in the court's view, "proclaiming one will exercise one's
right to an appeal is not the same as actually exercising that
right." It thus concluded that Stern's letter was "not a proper
request for an appeal" to the IEB.
Local 402 argues that the district court clearly erred
in finding that Local 402 failed to request a formal appeal of the
deactivation decision to the IEB. According to Local 402, the
evidence shows that it "unconditionally request[ed] an IEB
hearing."
Section 301(a) of the Labor Management Relations Act
("LMRA") "empowers district courts to hear suits for breach of
contract between two labor organizations." 10 Lydon v. Local 103,
10 Section 301(a) of the LMRA provides that:

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Int'l Bhd. of Elec. Workers, 770 F.3d 48, 54 (1st Cir. 2014); see
also 29 U.S.C. § 185(a). Because a union constitution is merely
a contract between parties, Doty v. Sewall, 908 F.2d 1053, 1060
(1st Cir. 1990), courts also analyze a suit by union members
alleging that a union has violated its constitution as a Section
301(a) suit for breach of contract between labor organizations.
Wooddell v. Int'l Bhd. of Elec. Workers, Local 71, 502 U.S. 93,
103 (1991); Lydon, 770 F.3d at 54 ("[Union] members can sue to
enforce the contract/constitution as third-party beneficiaries.").
Exhaustion of union appeals procedures is usually
required before filing a Section 301(a) suit unless exhaustion is
demonstrably "futile." Clayton v. Int'l Union, UAW, 451 U.S. 679,
683-85 (1981). "Where the union member is fully advised of appeal
procedures and the union constitution mandates that they be
exhausted . . . we hold that the balance falls in favor of requiring
exhaustion." Monroe v. Int'l Union, UAW, 723 F.2d 22, 25-26
(6th Cir. 1983).
Suits for violation of contracts between an employer
and a labor organization representing employees in an
industry affecting commerce as defined in this Act,
or between such labor organizations, may be brought
in any district court of the United States having
jurisdiction of the parties, without respect to the
amount in controversy or without regard to the
citizenship of the parties.
29 U.S.C. § 185(a).

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Local 402 was deactivated by the International
President, Saunders, pursuant to Article V, Section 6 of the AFSCME
constitution, which states that:
The International President, subject to the approval
of the International Executive Board, shall issue
charters to subordinate bodies of the Federation and
shall, subject to an appeal to the International
Executive Board, determine all matters relating to
the jurisdiction and proper affiliations of
subordinate bodies. The International President,
subject to the approval of the International Executive
Board, shall have the authority to negotiate and
consummate, on such terms and conditions as the
International President considers appropriate,
mergers or consolidations with organizations
representing public employees or other appropriate
groups of workers . . . .
Council 93 concedes that Article V, Section 6
incorporates an opportunity to appeal after a deactivation
decision. But it argues that Local 402 refused to recognize that
it had been deactivated -- and instead centered its efforts in
contending that the termination of its charter was a merger or
consolidation under Article IX, Section 35 of the AFSCME
constitution -- and thus never affirmatively requested an appeal.
Because Local 402 never appealed the deactivation decision to the
IEB, its argument goes, Local 402 failed to exhaust internal
remedies as required under Article XII, Section 10 of the AFSCME

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constitution and was thus barred from filing suit in court. 11 We
disagree.
The district court concluded that Local 402 failed to
request an appeal, citing certain correspondence between the
parties, including Stern's June 7, 2017 letter to AFSCME concerning
the deactivation. The court noted that this letter stated, "[i]f
the [AFSCME] President and [the International] Executive Board
ever issue . . . a [deactivation] notification, be assured that
[Local 402] will exercise the right to appeal for a hearing before
the [IEB]," and concluded that this was merely a proclamation that
Local 402 intended to exercise its right to appeal, which is
different from actually exercising such a right.
In reaching that conclusion, the district court failed
to consider the entire content of the letter. Stern's letter also
stated, "if you deem your transmission dated June 2, 2017 . . . to
be such a notification [that Local 402 had been deactivated], and
11 The LMRDA allows labor organizations to require LMRDA plaintiffs
to first exhaust internal union remedies. To that effect, it
provides that "any such member may be required to exhaust
reasonable hearing procedures . . . within such organization,
before instituting legal or administrative proceedings against
such organizations or any officer thereof." 29 U.S.C. § 411(a)(4).
The AFSCME constitution includes such an exhaustion requirement.
Article XII, Section 10 of the AFSCME constitution states, "[n]o
member or subordinate body shall institute any civil action, suit
or other proceeding in any court . . . against [AFSCME] . . .
without first exhausting all [internal] remedies, including all
available appeals . . . ."

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be assured my Client and I do not, my Client would exercise such
a right and [Local 402] hereby does at one and the same time
reserve and exercise such a right." (Emphasis added). Stern's
statement was phrased in the alternative, but it was unambiguous
-- if AFSCME deemed its letter sent on June 2, 2017 as a notice of
deactivation, Local 402 was requesting an appeal of that decision
to the IEB. See United States v. Frazier-El, 204 F.3d 553, 566-67
(4th Cir. 2000) (noting that "people make countless requests in
the alternative," and such requests do "not automatically render
the alternative request unclear or equivocal"). Less than a week
later, on June 12, 2017, Stern sent a letter to AFSCME stating
that, "to the extent that [your letter sent on June 2, 2017]
purported to be such a notification [of deactivation], my client
immediately appealed that decision under the applicable
Constitutional provision. Hence, Local 402 fully expects to be
recognized until that appeal is heard . . . ."
Accordingly, based on the June 7, 2017 letter, we
conclude that Local 402 exercised its right to appeal to the IEB.
The district court thus clearly erred in finding otherwise by
focusing on only a section of that letter. See Richard v. Reg'l
Sch. Unit 57, 901 F.3d 52, 59 (1st Cir. 2018) (noting that,
following a bench trial, this court reviews findings of fact for
clear error and this standard is met only when, on the entire

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evidence, we are left with the definite and firm conviction that
a mistake has been committed). The fact that Local 402 was never
afforded an appeal is a breach of contract, actionable under
Section 301(a) of the LMRA. See Lydon, 770 F.3d at 54.
The matter of remedy remains. In bringing this suit,
Local 402 "sought to compel AFSCME to follow its own procedures in
regard to [its] deactivation." On appeal, Local 402 conceded that
the source of those procedural rights resides in Section 6 of
Article V. The parties agree that the procedure provided by that
provision allows for an appeal by Local 402. We have found that
Local 402 sought such an appeal, but the IEB did not then entertain
or decide that appeal.
III. Conclusion
We therefore reverse the district court's judgment that
Local 402 did not preserve its appeal rights, and we remand the
case to the district court with instructions to order the
defendants to either rescind the deactivation of Local 402 or
proceed forward to hear the appeal in the ordinary course. We
also vacate any judgment dismissing Count III with prejudice, with
instructions that Count III be dismissed without prejudice as
unripe unless and until Local 402's internal union appeal has been
concluded. Costs are awarded to plaintiffs.
Reversed, Remanded, and Vacated.

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