
    COMMUNICATIONS WORKERS OF AMERICA, LOCAL 10517 v. Margaret GANN, et al.
    No. 56488.
    Supreme Court of Mississippi.
    April 22, 1987.
    Rehearing Denied Aug. 19, 1987.
    Charles R. Brett, Tupelo, for appellant.
    David R. Sparks, Sparks, Wicker & Col-burn, Jacqueline C. Estes, Estes & Waide, Tupelo, for appellees.
   HAWKINS, Presiding Justice,

for the Court:

This case is before us on consolidated appeal by the Communications Workers of America, Local 10517, an unincorporated association, from judgments of the Lee County Circuit Court dismissing separate complaints it had against Margaret Gann, Bobby Lee Jones, Stephen W. Brown, Sandra Johnson, Jacqueline Henderson, Jerry T. Loden, Anita Hope Hilliard, Russell Par-din, Jan M. Hunt, Wanda Bailey and Mac Evans. CWA is a local union whose members were employed in the Bell Telephone System during a work stoppage.

The defendants were union members who continued to work during a strike.

The union levied fines against each of them, and depending upon the fine levied— sought to recover from each defendant in either a justice court or circuit court of Lee County. The justice court judgments were all appealed to the circuit court.

Based upon our decision in Multiple Listing Service, Etc. v. Century 21, 390 So.2d 982 (Miss.1980), the circuit judge dismissed all complaints. We affirm.

FACTS

During a work stoppage apparently ordered by the union, the defendants Margaret Gann, Bobby Lee Jones, Stephen W. Brown, Sandra Johnson, Jacqueline Henderson, Jerry T. Loden, Anita Hope Hilliard, Russell Pardin, Jan M. Hunt, Wanda Bailey and Mac Evans, South Central Bell employees, continued to work. The union conducted a hearing as to each, and levied fines ranging from $225 to $1,600 against the defendants. The union then sought to recover the fines in court.

The complaint filed against each defendant in court stated:

III.

The Plaintiff and Defendant entered into an agreement by which the Defendant promised to abide by the Constitution and By-laws of Communication Workers of America, Local 10517 and specifically agreed that he (she) would not cross a Communications Workers’ picket line during an organized and authorized work stoppage and further agreed that if he (she) did he (she) could be fined by the Local under the Constitution and By-laws of the Local.

The only “agreement” offered to support the charge that the defendants agreed that any “fine” levied by the Union could be collected in a lawsuit were the printed booklets of the constitution and by-laws of the union. Article XIX of the Union constitution in pertinent part reads:

Article XIX Charges Against Members

Section 1 — Specifications of Offenses — Locals
Members may be fined, suspended or expelled by Locals in the manner provided in the Constitution for any of the following acts:
# # # # * #
(e) Working without proper Union authorization, during the period of a properly approved strike in or for an establishment which is being struck by the Union or Local;

There is nothing in the record to indicate that the amount of the fines was ascertained by any uniform predetermined methodology. There was no schedule notifying members of the maximum fines to which they would be subjected.

As noted, the circuit judge was of the view that Multiple Listings Service, Etc., controlled, and that because the union had not posted a schedule of fines for infractions which the union had charged the defendants, the fines could not be levied. He accordingly entered judgments for the defendants.

LAW

In Multiple Listing Service, Etc. v. Century 21, supra, three realtors filed suit in chancery court to enjoin the realtors’ association from sanctions imposed against each. One was severely reprimanded, the other suspended from membership, and the final one fined $300. In that case, as here, there was no previous notification of the amount of fine by schedule or listing.

Upon appeal we found the association under its by-laws had the right to reprimand and suspend members, but held as to the fine:

However, we also are of the opinion that before a fine can be imposed a private association must have a schedule of maximum fines that may be imposed to which schedule each member has agreed to be bound by joining the association. To hold that an association might arbitrarily prescribe fines for each individual offense as it sees fit would make possible and invite an abuse of authority. A fixed, reasonable fine in the nature of liquidated damages, for injuries sustained because of unprofessional or unethical conduct would be sustained. But an arbitrary fine, such as the one imposed here, cannot be enforced.

We also cited and quoted American Men’s & Boys’ Clothing Manufacturers Ass’n. v. Proser, 190 A.D. 164, 179 N.Y.S. 207 (Sup.Ct.1919):

To hold that an association of this character might assess such amounts as it saw fit for any infraction of its rules or by-laws, important or unimportant, would make possible a course that would work serious loss to members and invite an abuse of authority. A fixed, reasonable fine, in the nature of liquidated damages for injury sustained because of dereliction, would be sustained. (179 N.Y.S. at 210).

The Union’s position is even more untenable than the Association in Multiple Listing, however. There was no attempt in that case by the Association to collect the fine it assessed in court. It was assessed as a penalty, and if the member did not pay it, he could either be suspended or expelled from the Association. It was the Association member who went to court to enjoin the Association from expelling him for nonpayment of the fine. The Association never contended the fine was a contractual debt it could collect in court.

The Union in this case takes the position that when a member joined the union he contractually bound himself that if he violated Union rules or regulations, the Union could conduct a hearing and impose a fine, which became a debt collectible in a court of law.

There is nothing about Section I of Article XIX which compels such a construction:

Members may be fined, suspended or expelled by Locals in the manner provided in the Constitution for ... working without proper Union authorization during the period of a properly approved strike....

Does this provision mean that a member has contractually bound himself to pay the fine which may (1) be collected in court, or (2) does it simply mean that he might be further disciplined by the Union for such nonpayment, by a more severe sanction such as suspension or expulsion?

A more plausible construction is that the fine is an intra-union discipline. If the member refuses to accept the union discipline, the union can punish him more severely by suspending or expelling him from the union. Since the Union prepared the Constitution, this provision should be construed most strongly against it. Hinds v. Primeaux, 367 So.2d 925 (Miss.1979); Globe Music Corp. v. Johnson, 226 Miss. 329, 84 So.2d 509 (1956); Home Mutual Fire Ins. Co. v. Pittman, 111 Miss. 420, 71 So. 739 (1916).

If the Union intended any such fine levied to be a contractual obligation, a debt, it would have been quite simple to state as much in the union constitution. Indeed, had the Union intended to claim these sums in court as liquidated damages, it was under a duty to spell them out in some form, setting out what the damages would be. United Glass Workers’ Local No. 188 v. Seitz, 65 Wash.2d 640, 399 P.2d 74 (1965); Retail Clerks Local 629 v. Christiansen, 67 Wash.2d 29, 406 P.2d 327 (1965).

The cases cited by the Union to uphold its position never addressed this precise point. We do not know whether there was in effect a contractual meeting of the minds whereby the member agreed to such court enforceable levy. Communications Workers of America, AFL-CIO, Local 6003 v. Jackson, 516 P.2d 529 (Okl.1973); Lost v. Communications Workers of America, Local 9408, 91 Cal.Rptr. 722, 13 Cal.App.3d Supp. 7 (1970); NLRB v. Allis Chalmers Mfg. Co., 388 U.S. 175, 87 S.Ct. 2001, 18 L.Ed.2d 1123 (1967).

Even if the cases cited by the Union were to the contrary, we are not bound to follow them. We are bound to follow firmly established basic contract law, and not do violence to its principles.

There is some sophistry in the argument that because most contracts do not provide for court enforcement of contract breaches (because the right is implied in any contract), the Union can also go to Court to collect its fine. Such a statement, of course, begs the question. The maker of a note expects to be sued in event of nonpayment. A party to a contract who breaches his obligation knows that the wronged party can go to court and have the court determine the damages. And, of course, if there are any claims fpr liquidated damages, this must be spelled out in the contract to enforce it, this was not done here. In the Matter of Community Medical Center, 623 F.2d 864, 867 (3rd Cir. 1980); Consolidated Rail Corp. v. MASP Corp., 490 N.E.2d 514 (N.Y.1986); ABI, Inc. v. City of Los Angeles, et al., 200 CaLRptr. 563, 153 Cal.App.3d 669 (1984); Lane v. Pfeifer, 264 Ark. 162, 568 S.W.2d 212 (1978). Here a court assessment of damages was short-circuited. The Union took upon itself to determine what the damages were, and thereby usurped the function of the court.

There was nothing about this union provision to compel the construction that in event of nonpayment of a fine the most that could follow would be suspension or expulsion from the union.

Our imagination is not fertile enough to fathom that by this provision there was a clear intent by a union member to incur a court enforceable obligation through any such fine.

The ambiguity of meaning becomes more pronounced when we consider the phrase “fined, suspended or expelled.” This suggests one or the other, not all. Indeed, it would be impossible to suspend and expel at the same time. Therefore, if the Union chooses to fine a member, this is all it can do under this provision, unless — to accommodate the Union — we stretch “or” to mean “and.” Applying “or” to the Union’s argument provides us with an example of where this absurdity of construction would lead.

There can be no doubt that one of the most egregious wrongs a union member can do to his association is to continue to work when a strike has been called. A strike is by far the most powerful weapon organized labor has. Yet if union members continue to work during a called strike, the union becomes a toothless tiger. Presumably, the last person in the world the union wants among its members is a person who feels free to return to his job during a strike. Yet, if we follow the construction the Union requests in this case, by paying their fine these members can return to membership. Is the Union prepared to take them back as members when they have paid the “fine”? Clearly, under the wording of the phrase “fined, suspended or expelled,” the Union is not authorized to exact all three penalties simultaneously.

The only rational construction of the phrase means that if a union member violated a union rule, the Union conducts a hearing as to such infraction, following which the member may be fined. If he failed to pay the fine, presumably he would be subject to more severe union discipline such as suspension or expulsion. This is what the phrase appears to mean. It has no clear meaning nor demonstrates an intent that in event a member does not pay the fine, the Union may sue him and collect it in court.

A court is not requited, indeed we have no authority, to put a labor union in some special class in interpreting general legal principles.

We find the Union constitution does not mean what the Union claims it means. Even if it did, under Multiple Listing Ser vice, supra, the clause is unenforceable because there was nothing in writing setting forth reasonable charges which would be exacted in event of various infractions occurred.

A labor union seeking to enforce discipline as was attempted here must have in place the appropriate written contract.

AFFIRMED.

WALKER, C.J., and DAN M. LEE, and GRIFFIN, JJ., concur.

ROY NOBLE LEE, P.J., and ROBERTSON, PRATHER and SULLIVAN, JJ., dissent.

ANDERSON, J., not participating.

ROBERTSON, Justice,

dissenting:

I.

With the greatest respect, I fear the majority is leading the Court into several not insignificant errors. These are best explained by what I suggest is a correct exposition of the matter.

This appeal arises out of a union local’s efforts to enforce judicially fines imposed upon eleven members who refused to honor a duly authorized and called strike. At the heart of the case, properly considered, is the question whether the fines were imposed arbitrarily and in violation of rights secured to the union members.

The Circuit Court denied enforcement of the fines and granted summary judgment in favor of the workers. For the reasons set forth below, I would reverse and remand.

II.

A.

The Communication Workers of America (“CWA”) is the recognized bargaining agent for employees of the Bell System. CWA Local 10517, headquartered in Tupe-lo, Mississippi, represents employees of South Central Bell Telephone Company and American Telephone & Telegraph Company in the northeast Mississippi area. CWA Local 10517 has over 300 members and is the Appellant in each of these cases.

This litigation arises out of CWA’s duly authorized nationwide work stoppage called against the Bell System in August of 1983. CWA Local 10517 fully participated in the strike which lasted approximately two weeks.

During the strike, at least eleven members of Local 10517 chose to ignore the Union’s strike order and continued working. Thereafter, Local 10517 commenced disciplinary proceedings within the Union’s Trial Court with the result that fines were assessed against eleven members.

CWA’s Constitution, Article XIX, Section 1, provides

Members may be fined, suspended or expelled by Locals in the manner provided in the Constitution for any of the following acts:
* * * * * *
(e) Working without proper Union authorization, during the period of a properly approved strike in or for an establishment which is being struck by the Union or Local; ...

Pursuant to this authority, fines were assessed by Local 10517’s Trial Court based upon the following:

(a) The number of days worked during the strike by that particular member.
(b) That member’s hourly base pay for an eight hour day excluding any overtime or additional pay paid to that person by the Company for working during an authorized work stoppage.
(c) That if any member resigned from membership in the Local, then only the days which he/she worked prior to the receipt of their letter of resignation was used in computing the amount of the fine.

Concededly, these criteria had not been announced or agreed to prior to the offenses, although I consider the point is of no moment. (At least this is my view and as well the view of every other Court to have considered the point. See cases cited below.) In the present procedural context we must take it as established that no member was fined more than his daily base pay for each day of unauthorized work, nor was any member fined for any time he worked after the Local’s receipt of a letter of resignation. The disciplinary proceedings were in full compliance with the procedural safeguards of the CWA Constitution and By-laws of the Local, and every accused member was given notice of the charges, notice of a hearing, the right to confront and cross-examine witnesses, an opportunity to refute the charges, and a hearing before an unbiased tribunal.

Pursuant to the above described formula fines were imposed as follows:

NAME AMOUNT
Margaret Gann $1,000.00
Bobby Lee Jones 1,600.00
Stephen W. Brown 1,100.00
Sandra Johnson 1,500.00
Jacqueline Henderson 400.00
Jerry T. Loden 225.00
Anita Hope Hilliard 350.00
Russell L. Pardin 990.00
Jan M. Hunt 350.00
Wanda Bailey 350.00
Mac Evans 900.00

B.

In November of 1983 CWA Local 10517 commenced eleven separate civil actions, one against each of the parties named above, seeking enforcement and collection of the fines enumerated above. Several of these actions were brought in the Circuit Court of Lee County, Mississippi. Others were brought in the Justice Court of Lee County, Mississippi, and thereafter were appealed for trial de novo in the Circuit Court. In any event, all cases were consolidated by order entered October 17, 1984. See Rule 42(a), Miss.R.Civ.P.

In due course, each of the workers filed motions for summary judgment. See Rule 56, Miss.R.Civ.P. On March 22, 1985, the Circuit Court released its opinion granting each of the motions for summary judgment and finally dismissing Local 10517’s eleven separate complaints. The Circuit Court reasoned that, whereas a local union may discipline its members, it may not exact fines from them unless at the time a member joins the local there is in effect “a schedule of maximum fines that might be imposed upon violation of any prohibited act.” The Circuit Court went on to reason that “it is immaterial that in the assessment of fines the body charged with trying and assessing members found guilty of violation acts fairly, impartially and justly.” In so holding, the Circuit Court relied upon our decision in Multiple Listing Service of Jackson, Inc. v. Century 21 Cantrell Real Estate, Inc., 390 So.2d 982 (Miss.1980). The majority now affirms, erroneously, I suggest.

III.

Notwithstanding extensive federalization of the law of labor relations, including many matters affecting the internal affairs of labor unions, the authority of a union as a matter of member discipline to impose and collect fines has been relegated to state law. More specifically, the disciplinary provisions of the Union’s constitution and by-laws are regarded as private law enforceable except where prohibited by the state law of contracts and voluntary associations. See National Labor Relations Board v. The Boeing Company, 412 U.S. 67, 74, 93 S.Ct. 1952, 1956, 36 L.Ed.2d 752, 758 (1973). The Supreme Court has expressly held that there is no prohibition in federal law to a Union’s enforcement of fines levied against members who decline to honor an authorized strike. National Labor Relations Board v. Allis-Chalmers Manufacturing Co., 388 U.S. 175, 87 S.Ct. 2001, 18 L.Ed.2d 1123 (1967). Pattern Makers’ League of North America, AFL-CIO v. National Labor Relations Board, 473 U.S. 95, 105 S.Ct. 3064, 87 L.Ed.2d 68 (1985) does no more than hold that fines may not be imposed upon employees/union members after the latter have effectively tendered their resignation from the union. See also Communication Workers of America, AFL-CIO, Local 10414 v. Conley, 505 So.2d 894 (La.App.1987).

This and other state courts have repeatedly accepted the view that the constitution and bylaws of a labor union constitute a contract between the union, on the one hand, and its members, on the other. Lowery v. International Brotherhood of Boilermakers, Iron Shipbuilders and Helpers of America, 241 Miss. 458, 468-69, 130 So.2d 831, 834 (1961); Local 165, International Brotherhood of Electric Workers, AFL-CIO v. Bradley & Stankoskey, 149 Ill.App.3d 193, 102 Ill.Dec. 20, 499 N.E.2d 577 (1986); Jost v. Communications Workers of America, Local 9408, 13 Cal.App.3d supp. 7, 91 Cal.Rptr. 722, 723-24 (1970); United Glassworkers’ Local No. 188 v. Seitz, 65 Wash.2d 640, 399 P.2d 74 (1965); see also National Labor Relations Board v. The Boeing Company, 412 U.S. 67, 75-76, 93 S.Ct. 1952, 1957, 36 L.Ed.2d 752, 759 (1973). Except where prohibited by other law, disciplinary provisions of the constitution and bylaws of a labor union are judicially enforceable against the members, and the union may resort to state courts to enforce payment of such fines. Scofield v. National Labor Relations Board, 394 U.S. 423, 426, 89 S.Ct. 1154, 1157, 22 L.Ed.2d 385, 391 (1969); National Labor Relations Board v. Allis-Chalmers Manufacturing Co., 388 U.S. 175, 87 S.Ct. 2001, 18 L.Ed.2d 1123 (1967); Local 165, International Brotherhood of Electric Workers, AFL-CIO v. Bradley & Stankos-key, 149 Ill.App.3d 193, 102 Ill.Dec. 20, 499 N.E.2d 577 (1986); Communication Workers of America, Local 6003 v, Jackson, 516 P.2d 529 (Okl.1973); Walsh v. Communications Workers of America, Local 2336, 259 Md. 608, 271 A.2d 148, 149 (1970); United Automobile Workers v. Natzke, 36 Wis.2d 237, 153 N.W.2d 602 (1967). Indeed, this Court has recognized state court subject matter jurisdiction of actions between labor unions and their members wherein enforcement of the union’s internal rules and regulations was sought. Lowery v. International Brotherhood of Boilermakers, Iron Shipbuilders and Helpers of America, 241 Miss. 458, 468-49, 130 So.2d 831, 834 (1961); United Brotherhood of Carpenters & Joiners of America v. Barr, 217 Miss. 360, 368, 64 So.2d 150, 153 (1953).

IV.

I am impressed by the fact that the judiciary of at least five other states has been called upon to grapple with quite similar actions brought by other locals of the same union, Communication Workers of America, and, without exception, the right of the CWA local to enforce payment of a fine levied against a member who crossed the picket line during a strike has been upheld. Jost v. Communications Workers of America, Local 9408, 13 Cal.App.3d Supp. 7, 91 Cal.Rptr. 722 (1970); Communication Workers of America, Local 5701 ¶. Drake, 487 N.E.2d 821 (Ind.App.1985); Walsh v. Communications Workers of America, Local 2336, 259 Md. 608, 271 A.2d 148 (1970); Communications Workers of America, Local 6003 v. Jackson, 516 P.2d 529 (Okl.1973); and Communication Workers of America, Local 9206 v. Malo-ney, 259 Or. 470, 486 P.2d 1275 (1971). The Indiana case arose out of the self-same August 1983 nationwide Bell System strike. Communication Workers of America, Local 5701 v. Drake, 487 N.E.2d at 822.

In the California, Indiana, Maryland and Oklahoma cases, the reported opinions make clear that the language of the CWA Constitution under consideration was identical to that before this Court this day. See Jost v. Communication Workers of America, Local 0408, 91 Cal.Rptr. at 723; Communication Workers of America, Local 5701 v. Drake, 487 N.E.2d at 822; Walsh v. Communication Workers of America, Local 2336, 271 A.2d at 149; Communication Workers of America, Local 6003 v. Jackson, 516 P.2d at 531. In three of these cases, fines were upheld which were slightly in excess of wages earned by the worker/union member while violating the strike order. Communication Workers of America, Local 5701 v. Drake, 487 N.E.2d at 823 (worker earned $832.77; was fined $857.77); Walsh v. Communication Workers of America, Local 2336, 271 A.2d at 149, 151 (workers earned $400.00; was fined $500.00); Communication Workers of America, Local 6003 v. Jackson, 516 P.2d at 533 (worker earned $267.00; was fined $274.52).

The Communication Workers of America is a national labor union having many thousands of members in every one of the fifty states. The cases cited above make it clear that the language in the CWA Constitution authorizing imposition of fines for strike breaking has been in its present form for at least fifteen years. Until today no case questions a CWA local’s authority to impose or seek judicial enforcement of a reasonable fine because the union had not in advance “adopted a schedule of maximum fines” or for any of the other reasons, real or imagined, advanced by the majority. We are concerned here with a union constitution which affects individuals in all of the fifty states. There is good reason to afford it a uniform construction or, conversely, we should refrain from constructions inimical to uniformity, absent implication of some strong interest peculiar to this state. No such Mississippi interest has been identified in the majority opinion, in the briefs or arguments of the parties, nor in the record of the proceedings below.

In upholding the judgment of the Circuit Court and applying the Multiple Listing rationale to the case at bar, we are in practical effect stripping Local 10517 and all other CWA Locals in Mississippi of their authority to impose and collect fines of and from members who violate Union rules. Under federal law CWA Locals have precisely this authority, and such authority is regarded as vital to a union’s viability. See National Labor Relations Board v. Allis-Chalmers Manufacturing Co., 388 U.S. 175, 183-84, 87 S.Ct. 2001, 2008, 18 L.Ed.2d 1123, 1129-30 (1967).

V.

Multiple Listing Service of Jackson, Inc. v. Century 21 Cantrell Real Estate, Inc., 390 So.2d 982, 985-86 (Miss.1980) is a troublesome case. The majority in part considers it controlling precedent. Why the majority is wrong in this regard should be considered with some care.

Multiple Listing Service of Jackson, Inc. (MLS) was a non-profit, private, professional association in which membership was voluntary. Century 21 Cantrell was a member of MLS. Cantrell materially altered a withdrawal notice in violation of the MLS Code of Ethics. Article IV, Section 1(a) provided sanctions in the event of such violations including reprimand, suspension or expulsion and in the end-provided

The Board of Directors, if it should see fit, may grant the option of receiving a monetary fine in lieu of suspension. All penalties are to be prescribed for each individual offense by the Board of Directors of MLS. [Emphasis supplied]

390 So.2d at 985.

The MLS Board imposed a $300.00 fine on Cantrell for its violation. This Court held the fine unlawfully imposed. The reasons offered were twofold: MLS did not have “a schedule of maximum fines that may be imposed to which schedule each member has agreed to be bound by joining the association.” 390 So.2d at 986. The fine was “arbitrary” in the sense that there was no evidence showing a rational basis upon which the amount was established. 390

So.2d at 986. No prior Mississippi law is relied upon in Multiple Listing. Rather, the court cited and relies upon a 1919 decision of a New York intermediate court of appeals, American Men’s and Boy’s Clothing Manufacturers Association v. Proser, 190 A.D. 164, 179 N.Y.S. 207 (1919). Second, the opinion relies upon the equal protection clause of the Fourteenth Amendment of the United States Constitution, although it cites no federal or state construction of that clause. 390 So.2d at 986. Multiple Listing should not control the case at bar. The fact that it relies on no Mississippi authority suggests the absence of any interest of this state in disrupting the uniformity of construction of the CWA National Constitution. Moreover, we imposed no requirement of a pre-assessment schedule of fees in the analogous context of a homeowners association. Perry v. Bridgetown Community Association, Inc., 486 So.2d 1230,1234 (Miss.1986); William W. Bond, Jr. & Associates, Inc. v. Lake O’The Hills Maintenance Association, 381 So.2d 1043, 1045 (Miss.1980). These cases substantially vitiate the status of Multiple Listing as announcing a rule of general application to all private or voluntary associations. Beyond that, the $300.00 fine imposed in Multiple Listing was without rational basis, at least insofar as the opinion reflects. To the contrary, the fines in the case at bar were determined by reference to the earnings of the workers during the period of time they violated the strike order but not past the point of their resignation, from the union. The Maryland and Oklahoma cases cited above convince me that this is a fair and rational method of assessing a fine.

In the end, the workers do not seriously argue that the method by which their fines were assessed are arbitrary or unreasonable. Rather, they rely upon the rather technical argument that there was in effect no before-the-fact schedule of maximum fines. To be sure, Multiple Listing holds this a fatal vice, and does so upon the authority of the equal protection clause of the Fourteenth Amendment to the United States Constitution. No case from the United States Supreme' Court of any other federal court is cited, however, giving the Fourteenth Amendment this construction. Indeed, little familiarity with prevailing equal protection jurisprudence is required to make clear that Multiple Listing ⅛ purported construction of the equal protection clause is simply wrong.

To establish a Fourteenth Amendment claim, equal protection variety or otherwise, there must be state action. Blum v. Yaretsky, 457 U.S. 991, 1003-12, 102 S.Ct. 2777, 2785-90, 73 L.Ed.2d 534, 545-51 (1982); Rendell-Baker v. Kohn, 457 U.S. 830, 837-43, 102 S.Ct. 2764, 2769-72, 73 L.Ed.2d 418, 425-29 (1982). There was no state action in Multiple Listing. It may be too late to undo that mistake, but there is no reason to repeat it. CWA Local 10517 is a private association, in no way an arm of the state.

Even if the state action hurdle be surmounted via the local’s judicial enforcement efforts, cf. Tinnin v. First Bank of Mississippi, 502 So.2d 659, 666 (Miss.1987), these union members must show invidious discrimination amongst persons without any rational basis therefor. These eleven Union members do not constitute a discrete class, precluding strict scrutiny review. Their fines were not arbitrarily imposed. Indeed their violation of the strike order is a more than rational basis for treating them differently from other Union members. I dare say that there is not a single reported case, save perhaps Multiple Listing, which would afford these union members relief on a Fourteenth Amendment equal protection theory. See, e.g., Williamson v. Lee Optical of Oklahoma, Inc., 348 U.S. 483, 75 S.Ct. 461, 99 L.Ed. 563 (1955).

In the end, no one has asked that we overruled Multiple Listing and, accordingly, I would not consider that proposition. I would merely hold that its force as precedent is not so strong as to prevent CWA Local 10517 from exercising prerogatives clearly available to it under this state’s law of contracts and voluntary associations and enforcing provisions of the CWA Constitution as those provisions have been enforced in other states.

VI.

There is more. Beyond its refusal to follow settled principles of construction of union disciplinary rules, and beyond its fostering an untenable reading and application of the Fourteenth Amendment, the majority ignores the procedural posture of these cases — the CWA local’s suits were all dismissed on summary judgment.

The majority reasons that the CWA Constitution and By-Laws were not worded with sufficient clarity to bring home to the union members that they were subject to fines for crossing the picket line. The matter of judicial enforcement is also regarded too vague. Setting aside for the moment that no other court has had these difficulties in reading the plain wording of the CWA Constitution and By-Laws, we find the majority here resolving a question of fact. Whether a given union member understood that the CWA Constitution and By-Laws authorized imposition and enforcement of fines for crossing picket lines is a question of fact. In contract parlance, it is a matter of whether in fact the minds met. The presence of such questions normally precludes summary judgment. But here the majority resolves the question of fact and does so against —not in favor of —the party against whom summary judgment was sought. This is bizarre.

The majority finds an “ambiguity of meaning” within the operative union rules. If that be the case, established rules regarding summary judgment proceedings require denial of the motion in favor of plenary trial on the merits. Briscoe’s Foodland, Inc. v. Capital Association, Inc., 502 So.2d 619, 621 (Miss.1986); Busching v. Griffin, 465 So.2d 1037, 1042 (Miss.1985); Dennis v. Searle, 457 So.2d 941, 945 (Miss.1984); Biggers v. Fox, 456 So.2d 761 (Miss.1984). Those same rules require reversal where the trial judge has summarily resolved the ambiguity, explicitly or as here implicitly. What else is there to say except to note the obvious, that here again the majority marches in reverse, 180 degrees opposite the settled law.

I dissent.

ROY NOBLE LEE, P.J., and PRATHER and SULLIVAN, JJ., join in this opinion.

ANDERSON, J., not participating. 
      
      . NLRB v. AUis-Chalmers, supra, makes this observation in a footnote.
     
      
      . That these criteria were employed by the Local Trial Court is established by affidavit. Since the matter was before the Circuit Court on motions for summary judgment filed against Local 10517, the contents of this uncontradicted affidavit must be taken as true. Hill v. Consumer National Bank, 482 So.2d 1124, 1229 (Miss. 1986); Smith v. First Federal Savings & Loan Ass’n., 460 So.2d 786, 792 (Miss. 1984).
     
      
      . See footnote 1, supra.
      
     
      
      . Judicial enforcement of union fines is hardly "a recent innovation but has been known at least since 1867.” National Labor Relations Board v. The Boeing Company, 412 U.S. 67, 75, 93 S.Ct. 1952, 1957, 36 L.Ed.2d 752, 758-59 (1973); National Labor Relations Board v. Allis-Chalmers Manufacturing Co., 388 U.S. 175, 182 fn. 9, 87 S.Ct. 2001, 2007 fn. 9, 18 L.Ed.2d 1123, 1129 (1967). State court enforcement was recognized well over a century ago in Master Stevedores’ Assn. v. Walsh, 2 Daly 1 (N.Y.1867). None of the union member appellees here questions the authority of the courts of this state to enforce union fines, nor did the Circuit Court.
     
      
      . Local 165, International Brotherhood of Electrical Workers, AFL-CIO v. Bradley & Stankos-key, 149 Ill.App.3d 193, 102 Ill.Dec. 20, 499 N.E.2d 577 (1986), reaching a result comparable to that I would have us announce this day, and upon similar reasoning, also arose out of the August 1983 nationwide Bell System strike.
     
      
      . My research indicates that Multiple Listing is the only case which has ever cited and relied upon the 1919 New York case.
     
      
      . See also Sokol Camp Association of Omaha v. Velehradsky, 209 Neb. 276, 307 N.W.2d 510 (1981), where the Supreme Court of Nebraska found no impediment to a private, voluntary association’s assessment of an initiation fee in the fact that neither the articles of incorporation nor the by-laws set forth any schedule of fees nor the maximum fee that might be assessed. 307 N.W.2d at 511-12.
     
      
      .If anything Multiple Listing presents a due process problem, not an equal protection one. To decide Multiple Listing or this case on equal protection grounds would be like trying to employ geometry principles to solve an algebra problem.
     