concurring in part and dissenting in part:

I agree with my colleagues that the trial court was correct in its grant of summary judgment to the Local on the work referral claim and in its dismissal of the same claim against the International for failure to prosecute. I concur in Parts II and III of the court’s opinion.

I submit with all respect, however, that the majority errs in holding that union leadership cannot discharge a business manager who actively opposes the leadership on a fundamental issue of union policy. The majority reaches this conclusion only by what I conclude is a misreading of the Supreme Court’s opinion in Finnegan v. Leu, 456 U.S. 431 , 102 S.Ct. 1867 , 72 L.Ed.2d 239 (1982). The majority’s error is compounded by the creation of an unwarranted conflict with the two other circuits that have addressed the point. I dissent from the court’s holding on this critical aspect of the case, set out in Part I of its opinion.

There is no dispute that Lynn, as a union member, had the right to participate in and vote at membership meetings, 29 U.S.C. § 411 (a)(1), and express his views on business before such meetings, 29 U.S.C. § 411 (a)(2); it is also not disputed that he was discharged by Trustee Hawkins from his position as business representative when he exercised these rights to speak against Hawkins’ proposed dues increase at the special June 24 membership meeting. Although this action indirectly penalizes Lynn for his exercise of protected rights, it does so only in his capacity as an officer, not as a member. Absent a serious threat to the continued democratic governance of the union, such a dismissal does not violate the rights of union membership protected by the LMRDA, and the case authority on this point from other circuits is persuasive.

*1486 In Finnegan the Supreme Court held that an appointed union official discharged from office for supporting a defeated candidate for union president could not state a claim for violation of membership rights secured by the LMRDA, 29 U.S.C. § 411 (a). I should have thought it explicit in Finnegan that the key distinction is between an infringement on rights in the complainant’s capacity as a union member and the termination of his privilege to act as a union officer. The Supreme Court observed “that it was rank-and-file union members— not union officers or employees, as such— whom Congress sought to protect” when it enacted Title I of the LMRDA. 456 U.S. at 437 , 102 S.Ct. at 1871 . The fact that the conduct complained of in Finnegan indirectly interfered with membership rights, interference which may well have forced the removed officials to “ ‘choosje] between their rights of free expression ... and their jobs,’ ” id. at 440 , 102 S.Ct. at 1872 (quoting Retail Clerks Union Local 648 v. Retail Clerks International Association, 299 F.Supp. 1012, 1021 (D.D.C.1969)), was deemed insufficient to state a claim for infringement of rights secured by 29 U.S.C. § 411 (a).

The Court in Finnegan left open the possibility that in some circumstances the retaliatory discharge of a union member from office might give rise to a cause of action under 29 U.S.C. §§ 411 , 412. 456 U.S. at 440-41 , 102 S.Ct. at 1872-73 . The majority believes this to be such a case, finding that Lynn’s dismissal came about because he outspokenly opposed the dues increase, and that LMRDA prohibits dismissal on these grounds because of the threat to democratic union governance. This conclusion not only misconstrues whatever exception to its holding the Supreme Court intended to leave open in Finnegan , but also departs from the understanding of the other circuits faced with determining the applicability of Finnegan to removals of elected union officials. Those courts have recognized that the potential threat to democratic governance that may inhere in permitting removals of elected union officials for opposing the views of other union officials does not transform allegations of ouster from office into a claim for infringement of membership speech. Dolan v. Transport Workers Union of America, 746 F.2d 733, 741 (11th Cir.1984); Adams-Lundy v. Association of Professional Flight Attendants, 731 F.2d 1154,1159 (5th Cir.1984) (fact that removed officer was elected does not suffice to create a claim under LMRDA); see also Sullivan v. Laborers' International Union of North America, 707 F.2d 347, 350 (8th Cir.1983) (union’s suspension of elected business manager did not, by itself, infringe officer’s rights as a union member).

I agree with the majority’s view, expressed in footnote 5, that the Eleventh Circuit’s distinction in Dolan between officer speech and member speech is unnecessary and problematic. However, the majority’s argument on this point actually cuts against its conclusion. Finnegan rests on the proposition that Title I protects rank-and-file union members, not officers. The nature of the speech prompting the removal is essentially irrelevant. As the Fifth Circuit recognized, removal of union officials, whether elected or appointed, does not sufficiently impair the integrity of union democracy to contravene membership rights protected by the LMRDA unless, as the Court in Finnegan suggested, the dismissal was part of “ ‘a purposeful and deliberate attempt to suppress dissent within the union.’ ” Adams-Lundy, 731 F.2d at 1159 (quoting Schonfeld v. Penza, 477 F.2d 899, 904 (2d Cir.1973)); see also Finnegan, 456 U.S. at 441 , 102 S.Ct. at 1873 . Whatever the boundaries of any exception to the Finnegan rule might be, the mere fact that Lynn was an elected officer is not sufficient to bring this case within that exception. At least absent allegations that his suspension was part of a scheme to subvert the union’s basic democratic structure, Adams-Lundy, 731 F.2d at 1159 , or that his was a “nonconfidential and nonpolicymaking” position, Finnegan, *1487 456 U.S. at 441 n. 11, 102 S.Ct. at 1873 n. 11 (leaving open applicability of holding to such employees), the injury suffered by Lynn is primarily connected with his status as an officer, not a union member, and does not support a claim under the LMRDA.

The courts that have considered the applicability of Finnegan to dismissals of elected union officials for the exercise of free speech or voting rights granted them as union members have noted the need of federal courts to exercise caution when asked to intervene in disputes between union officials. Here, the majority uses the occasion of a routine dismissal of an officer for failure to implement policy as its excuse to begin intervention and oversight in union affairs. Congress did not intend this intervention in the enactment of the LMRDA; we should not on the facts of this case begin intruding upon the details of union administration. See Dolan, 746 F.2d at 742 (when asked to intervene “in decisions made by [union] management about management, courts must measure their steps with extreme care”); Adams-Lundy, 731 F.2d at 1159 (“Congress has favored extrajudicial resolution of [labor] disputes”). The hesitancy of federal courts to attempt resolution of internal disputes between union officials does not evidence unfaithfulness to the LMRDA’s goal of ensuring that unions have democratic governance. Rather, it reflects an understanding that, absent a serious threat to the union’s basic democratic structure, “the ultimate power of decision” in such disputes is “vested in the voting membership of the union who have the ability to defeat officers abusing or misemploying their powers.” Adams-Lundy, 731 F.2d at 1160 . It should also be said that unions, too, have an interest in efficiency and orderly management, goals frustrated by today’s ruling of the majority.

I dissent from that portion of the court’s decision reversing the grant of summary judgment to the International on Lynn’s job removal claim.