James Eastman v. CINCINNATI MUSICIANS ASSOCIATION, Local No. 1; CINCINNATI SYMPHONY ORCHESTRA

File Name: 05a0834n.06
Filed: October 11, 2005
NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
No. 04-4342
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
JAMES EASTMAN,
Plaintiff-Appellant,
v.
CINCINNATI MUSICIANS ASSOCIATION,
Local No. 1; CINCINNATI SYMPHONY
ORCHESTRA,
Defendants-Appellees.
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ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF OHIO
Before: KENNEDY, COOK, and GRIFFIN, Circuit Judges
COOK, Circuit Judge. James Eastman appeals the district court’s order granting the
Cincinnati Symphony Orchestra’s (“the CSO”) motion for judgment on the pleadings and dismissing
Eastman’s claims that the CSO and the Cincinnati Musicians Association (“the Union”) violated the
Landrum-Griffin Act (“the Act”), 29 U.S.C. §§ 411, 412, 529, and conspired to violate the Act in
violation of Ohio law. Finding no error in the district court’s conclusion that Eastman failed to
allege a cause of action cognizable under the Act, we affirm.
I

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The CSO discharged Eastman from his employment as a musician for “artistic
incompetence.” That firing triggered Eastman’s right as a member of the Union to invoke the
collective bargaining agreement’s (“CBA”) grievance procedure for obtaining a peer review of the
employer’s incompetence decision. According to the CBA, the purpose of the peer review is to
determine “whether the charge should be sustained or not sustained.” In Eastman’s case, the
reviewers sustained the employer’s decision to discharge.
Eastman’s complaint alleged that by denying him the opportunity to present rebuttal
evidence during the peer review, the Union and the CSO violated his free speech and due process
rights under the Act. The district court disagreed, granted the CSO judgment on the pleadings for
failure to state a claim, and dismissed the claims against both the CSO and the Union. This appeal
followed.
II
We first address Eastman’s procedural argument that because the CSO attached a copy of
the CBA to its motion for judgment on the pleadings, the court should have converted the motion
to a motion for summary judgment. Federal Rule of Civil Procedure 12(c) requires a court to
convert a motion for judgment on the pleadings to a motion for summary judgment where “matters
outside the pleadings are presented to and not excluded by the court.” And once a court converts
a motion for judgment on the pleadings to a motion for summary judgment, the parties are entitled
to further discovery under Rule 56(e). Eastman contends that the court erred by declining to convert

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the motion and that it thereby prejudiced him by denying him the opportunity to conduct discovery
to support his claims.
The district court correctly refused to convert the CSO’s motion because the CBA was part
of, rather than “outside,” the pleadings. Documents attached to a Rule 12 motion “are considered
part of the pleadings if they are referred to in the plaintiff’s complaint and are central to the
plaintiff’s claim.” Jackson v. City of Columbus, 194 F.3d 737, 745 (6th Cir. 1999), abrogated on
other grounds by Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002). Central to Eastman’s claim
is the contention that the Union deviated from the grievance procedure in the CBA. The amended
complaint repeatedly refers to the CBA and specifically its grievance procedure. In addition, given
our conclusion that Eastman’s complaint does not set forth claims countenanced by the Act (see
below), the attachment added nothing to the amended complaint’s viability. We thus regard the
district court’s dismissal of Eastman’s complaint under Rule 12(c) as free from procedural error.
III
Considering then the CSO’s motion and the pleadings before it, the district court correctly
dismissed Eastman’s claims for failing to allege a violation of the Act. Eastman’s complaint alleged
two violations. First, Eastman contended that by preventing him from presenting rebuttal evidence
during the peer review process the Union and the CSO violated his free speech and due process
rights under § 411(a)(2), (a)(5). Section 411(a)(2) provides general rights of free speech and
assembly and § 411(a)(5) prohibits a union from “fin[ing], suspend[ing], expel[ing], or otherwise
disciplin[ing]” any of its members without providing various procedural protections. Second,

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Eastman alleged the Union and the CSO retaliated against him in violation of § 529, which prohibits
a union from “fin[ing], suspend[ing], expel[ing], or otherwise disciplin[ing]” any of its members for
exercising their rights secured by the Act.
We note first that the §§ 411, 412, and 529 create causes of action by union members against
their unions, but do not create causes of action by employees against their employers. See Bauer
v. RBX Indus., Inc., 368 F.3d 569, 586 (6th Cir. 2004) (holding that employers have no liability
under section 411(a)(4)—prohibiting labor organizations from limiting members’ rights to institute
court actions—because the statute “does not authorize a cause of action against employers”);
Duncan v. Peninsula Shipbuilders Ass'n, 394 F.2d 237, 239 (4th Cir. 1968) (finding it “abundantly
clear that the Act does not give a cause of action against an employer”). The district court thus
correctly found that Eastman’s claims against the CSO were not cognizable under the Act.
Second, we find that the district court correctly dismissed Eastman’s due process and
retaliation claims against the Union because Eastman was not “disciplin[ed]” by the Union within
the meaning of the Act. “Discipline” under the Act denotes “punishment authorized by the union
as a collective entity to enforce its rules,” Breininger v. Sheet Metal Workers Int'l Assoc. Local
Union No. 6, 493 U.S. 67, 91 (1989), and a member is “disciplined” only “when the union takes
action under color of the union’s right to control the member’s conduct in order to protect the
interests of the union or its membership.” Webster v. United States, 394 F.3d 436, 441 (6th Cir.
2005) (internal quotations omitted). Eastman essentially contends that his discharge by the CSO and
the peer review component of the grievance process constituted union discipline. We disagree.

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Neither Eastman’s discharge nor the Union’s participation in the grievance process amounted
to discipline by the Union. The Union neither caused, instigated, nor authorized his discharge, and
the discharge, initiated by the CSO based on its dissatisfaction with Eastman’s performance, did not
enforce Union rules. See Konen v. Int'l Bhd. of Teamsters, 255 F.3d 402, 409 (7th Cir. 2001)
(finding no discipline where plaintiff failed to show “that the Union caused his termination”).
Eastman remains a member of the Union in good standing. In the absence of some diminishment
of Eastman’s membership rights or union status, Eastman’s peer review did not constitute discipline.
See id. at 410 (finding no discipline because plaintiff“was never subjected to official Union
discipline . . . and there is no evidence that his membership rights or status have been diminished
in any way”). Rather than union discipline, the review proceedings represented an option available
to discharged union members to challenge their termination. The vehicle for such challenges
involved peer review. Eastman exercised that beneficial, negotiated option, as afforded him by his
union membership.
Third, we find that the district court correctly dismissed Eastman’s claim that by denying him
the opportunity to present evidence during the peer review process, the Union violated his speech
rights under § 411(a)(2). Section 411(a)(2) protects a union member’s general “right to meet and
assemble freely with other members; and to express any views, arguments, or opinions;” it does not
purport to regulate grievance procedures, and Eastman fails to argue why it should. He points us
to two cases discussing procedural protections under § 411(a)(5), not § 411(a)(2)—Detroy v.
American Guild of Am. Variety Artists, 286 F.2d 75 (2d Cir. 1961) and United States v. Int’l Bhd.

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of Teamsters, 992 F. Supp. 601 (S.D.N.Y. 1998)—and another concerning the rights of union
members to participate in meetings in which strike negotiations are discussed—Kuebler v. Cleveland
Lithographers & Photoengravers Union Local 24-P, 473 F.2d 359 (6th Cir. 1973). Since we regard
the grievance process as a benefit to Eastman, rather than any restriction, in our view these cases do
not advance Eastman’s cause. Eastman quarrels with the limitations encompassed within the
negotiated procedures, not the Union’s restriction on membership rights.
Finally, because Eastman failed to establish an underlying violation of the Act, we find that
his Ohio conspiracy claims were properly dismissed by the district court. See Williams v. Aetna Fin.
Co., 700 N.E.2d 859, 868 (Ohio 1998).
IV
The district court properly granted the CSO’s motion for judgment on the pleadings and
properly dismissed Eastman’s claims against the CSO and the Union. We accordingly affirm.

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