# United States Court of Appeals **For the Eighth Circuit**

___________________________ No. 13-1629

___________________________ John Rudish

lllllllllllllllllllll Plaintiff - Appellant

v. International Union of Operating Engin eers, Local 234; International Union of Operating Engineers

lllllllllllllllllllll Defendants - Appellees

____________ Appeal from United States District Court for the Northern District of Iowa - Cedar Rapids

____________ Submitted: January 17, 2014 Filed: March 21, 2014 [Unpublished]

____________ Before LOKEN, BOWMAN, and GRUENDER, Circuit Judges.

____________
PER CURIAM.

John Rudish was expelled from the Intern ational Union of Operating Engineers (IUOE) following a union proceeding on charges brought against him by a member of IUOE, Local 234 (Local 234). Afterwar d, Rudish brought this suit against IUOE and Local 234, citing violations of s ection 101(a)(5) of the Labor ManagementReporting and Disclosure Ac t, which forbids labor or ganizations from expelling or disciplining a member without (1) service of written specific charges, (2) a reasonable time to prepare a defense, and (3 ) a full and fair hearing. See 29 U.S.C. § 411(a)(5). Rudish claimed that the charges were not sufficiently specific or supported by enough evidence and that his union hearing was held before a related criminal charge against him had been resolved, which prejudiced hi m and violated his constitutional rights. The District Court granted summary judgm ent to IUOE and Local 234 on all claims. We have reviewed the record de novo and have drawn all reasonable inferences in Rudish’s favor, see Rochling v. Dep’t of Veterans Affairs , 725 F.3d 927, 937 (8th Cir. 2013), and for the reasons explai ned below, we conclude that there are disputed issues of material fact on whether Rudish received a full and fair hearing. Accordingly, we reverse the dismissal of that claim.

The District Court concluded that the summary-judgment record revealed no issues for a jury on whether Rudish had r eceived a full and fair hearing because the record showed that the adverse disciplinary decision was supported by “some evidence.” See Int’l Bhd. of Boilermakers v. Hardeman , 401 U.S. 233, 245–46 (1971) (noting that full-and-fair-hearing provisi on requires that disciplinary decision be supported by “some evidence”). As summary-judgment movants, IUOE and Local 234 had the burden of showing that there wereno genuine issues of material fact, see Whisenhunt v. Sw. Bell Tel. , 573 F.3d 565, 568 (8th Cir. 2009), but they offered nothing to show what evidence had been pres ented at the union proceeding. In fact, they did not even mention the “some ev idence” standard, much less argue (and most important, demonstrate) that the standard had been met. The only indication in the record as to what eviden ce was presented at the union proceeding is in a one-page copy of the minutes—material that Rudish hi mself presented as an attachment to his complaint.

According to the minutes of the union proceeding, each side was given five minutes to present its case. The memberwho had brought the union charges against

-2-Rudish, which included making a threat against IUOE business agent Don Duehr, explained why he had brought the charges a nd noted that an order of protection had been issued against Rudish. In his defens e, Rudish asked retired business agent Dick Petersmith whether Rudish had ever gone to his house or called in the evening. Petersmith responded that Rudish had done so and that Petersmith’s wife had called police to get Rudish to leave the property. Rudish then played a recording of Duehr’s voice telling Rudish not to call his house atnight. Other evidence in the summaryjudgment record showed that Duehr was pr esent at the hearing but did not speak.

We find some guidance from the decision in Hardeman , in which a union member was charged with attacking and b eating a union business manager. The union member admitted striking the first blow, and the victim’s testimony was fully corroborated by a witness to the altercation. The Supreme Court found that there was “no question that the charges were adequately supported.” Hardeman , 401 U.S. at 247; see also Mayle v. Laborer’s Int’l Union of N. Am., Local 1015 , 866 F.2d 144, 145–47 (6th Cir. 1988) (per curiam) (holdi ng that there was abundant evidence to support the charge against a union memberfor helping organize a non-AFL-CIO local union of a different name where the union member admitted at the hearing that he contacted local contractors for the purpos e of negotiating a collective bargaining agreement for new union and serving as the new union’s business manager).

Unlike in Hardeman , in this case, there was no evidence presented that was directly probative of the charges broughtagainst Rudish. The evidence merely consisted of statements or testimony on (1) the existence of an order of protection against Rudish, (2) how Rudish had behave d towards Petersmith, and (3) how Duehr had once asked Rudish not to call his hous e at night. We ca nnot agree with the District Court that this presentation c onstituted “some evidence” that Rudish had threatened Duehr. See Hardeman , 401 U.S. at 246 (reiterating that “conviction on charges unsupported by any evidence is a denial of due process”).

-3-Accordingly, we reverse the dismissal of Rudish’s claim that he did not receive a full and fair hearing, and we remand w ith directions that the District Court determine, as a matter of law on an adequate fact record, whether there was “some evidence” supporting the decision to expel Rudish from union membership. If the court concludes there was some supporting ev idence, the claim should be dismissed. If not, then further proceedings may be require d, as in Eisman v. Baltimore Reg’l Joint Bd. , 496 F.2d 1313, 1314 (4th Cir. 1974). In all other re spects, we affirm.

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