Leo v. Local Union Etc. , 26 Wash. 2d 498 ( 1946 )

The plaintiffs, Howard A. Leo, Fred E. Brown, and J.B. Burns, each brought a separate action against Local Union No. 612 of International Union of Operating Engineers, a voluntary association, James Estep, as its president, and Earl Palmatier, as its business agent and financial secretary, as defendants, to recover for damages alleged to have been sustained as a result of their discharge from their respective jobs in the Seattle-Tacoma shipyard. It was alleged by plaintiffs Leo and Brown that their discharge was effected by their wrongful expulsion from the defendant union, and by plaintiff Burns by the refusal of membership in the union after he had worked during a temporary period on a work permit.

The Seattle-Tacoma shipyard was a war industry engaged in the construction of ships, under contract with the United States government, and operated on the closed-shop basis. All of its bargaining agents were affiliates of the American Federation of Labor. One of the types of industry necessary to the operation of the shipyard was a railroad, which was physically confined to the yard itself. The workmen engaged in the operation of this railroad were under the jurisdiction of the defendant union. Plaintiffs were employed in this railroad service. Leo and Brown were members of the defendant union, and Burns had made application for membership at the time his employment in the shipyard commenced.

The separate causes of action of the three plaintiffs were consolidated for trial. Two principal issues were presented for determination: (1) Were plaintiffs Leo and Brown wrongfully expelled from the defendant union and was plaintiff Burns wrongfully denied membership in the union; and (2) did the plaintiffs pursue all of the remedies for redress afforded to them by the constitution and by-laws of the International Union of Operating Engineers, from which Local Union No. 612 derived its rights and powers?

The trial judge held that the plaintiffs' suits could not be maintained, predicating his ruling upon the failure of the plaintiffs to exhaust all of the remedies afforded them by the constitution and by-laws of the International Union. He likewise held, in effect, that the plaintiffs Leo and Brown had been wrongfully expelled from the defendant union, and that plaintiff Burns had been wrongfully denied membership in the union. The trial court's rulings were resolved to a judgment denying them any relief whatsoever. They have appealed.

All of the appellants had been members of the Brotherhood of Railroad Trainmen. As indicated, Leo and Brown assumed membership in the respondent union prior to the time the events leading up to the issues in the instant case occurred. Burns had applied for membership in the respondent union in the latter part of June, 1942, and went to work in the Seattle-Tacoma shipyard in July, 1942, on a temporary permit pending action upon his application for membership in respondent union. No action had been taken upon Burns' application up to and including October 5, 1942, when each of the appellants received identical letters from the secretary of Local No. 612 and bearing the signature of its president. The letters read as follows:

"You are hereby cited to appear before Local No. 612, International Union of Operating Engineers, at its next regular meeting, on Monday, October 19, 1942, at 9:00 P.M., to answer charges filed against you by the Executive Board of said Local.

"You are charged with violation of Section E of Subdivision Seven of Article Twenty Three of the International Constitution. In that you have, on several occasions, solicited membership for the Brotherhood of Trainmen from among the members of Local No. 612 while engaged on construction work coming under the jurisdiction of this Local. And otherwise causing dissension among said members of Local No. 612.

"You will be given an opportunity on this date to plead `Guilty' or `Not Guilty' to above charges."

Immediately following the mailing of these letters and on October 7, 1942, the financial secretary and business representative of Local Union No. 612 notified the proper officials of the Seattle-Tacoma shipyard that the appellants were no longer members in good standing of Local Union No. 612 and requested that they be discharged. The employer, having no alternative under his closed-shop contract, complied with the request.

Appellant Leo replied to the letter of October 5th, in writing, denying the charges set forth against him and entering a plea of not guilty. Appellants Brown and Burns appeared at the meeting of October 19th, at which time they denied the charges and pleaded not guilty. In that meeting, however, Burns' application for membership in respondent union was formally rejected. On October 23, 1942, respondent union notified appellants Leo and Brown to appear at the next regular meeting of the Operating Engineers Local Union No. 612, on Monday evening, November 2nd, at eight p.m., in Hall B of the Labor Temple, 15th and Market, Tacoma.

In the meantime, appellants had consulted by long distance telephone with A.F. Whitney, president of the Grand Lodge of the Brotherhood of Railroad Trainmen at Cleveland, Ohio. Under date of October 13th, Whitney wired L.A. Borden, chairman of the Brotherhood of Railroad Trainmen on the Chicago, Milwaukee, St. Paul Pacific Railroad Company at Tacoma, as follows:

"Advised several of our members discharged by Seattle-Tacoma Shipbuilding Corporation account protest by members of another union. Please meet management at once and endeavor to have matter straightened out and our men returned to work. In event management declines to co-operate, employ an attorney and undertake to have men restored to their former positions with pay."

Borden attempted to intercede, but was unsuccessful. His effort confirmed the suspicion already in the minds of the officers and members of Local Union No. 612, that the Brotherhood of Railroad Trainmen, through its top-ranking officials, was endeavoring to acquire jurisdiction of such employees engaged in operating trains in the Seattle-Tacoma shipyard as were eligible to membership in the Brotherhood. In fact, Mr. Whitney's interest and that of the Brotherhood of Railroad Trainmen lends strong confirmation to the several indications in the record that a surreptitious proselyting campaign was being carried on by the trainmen within the ranks of the respondent union.

On November 2nd, Leo and Brown appeared for trial in compliance with the citation issued to them on October 23rd. A hearing was had. No transcript of the testimony was preserved. However, from the record in this case, it appears that ample evidence was adduced to sustain the charges. It is my observation and conclusion that the trial conducted by respondent union officials was done so with due regard to the rights secured appellants by the constitution and by-laws of the International Union. At the hearing, the appellants emphatically denied having solicited members for the Brotherhood of Railroad Trainmen. However, their conduct leads to a different conclusion. Burns admitted that he had distributed Brotherhood of Railroad Trainmen application cards to employees in the shipyard. In fact, several such applications were submitted to the Tacoma Local of the Brotherhood of Railroad Trainmen, with Burns' name appearing as the brother recommending the applicant. Other testimony leads to the same conclusion.

George N. Hodge, a member of Local No. 612, testified as follows:

"Q. Will you state what the conversation was that you had with Mr. Leo at that time and place? A. He asked me if I belonged to the Trainmen and I told him, `No.' Q. And what did he say then? A. Well, he said he had an application or could get one for me to sign that would be to my benefit when I signed it. Q. What did you say then? A. Well, he handed me the application blank and I told him I would fill it out. . . . Q. Did Mr. Leo make any statement at the time he signed your card with respect to your future employment? A. Well, he said it would be to my advantage if I signed the application for the Trainmen. . . . Q. Did you have any conversation with the plaintiff Brown? A. I did. . . . Q. Where did the conversation take place? A. I believe it was just between shifts, between the morning shift and the swingshift. Q. Now, at that time and place will you state what the conversation was between you and Brown? A. Well, he asked me if I had signed the application blank yet and I told him `No.' He asked me if I was intending to and I told him I thought I probably would. I told him later, within, I believe, it was the next day or so afterwards, that I had signed it and turned it in.. . .

"Q. Did you testify at the trial? A. I did. Q. Of November 2nd? A. Yes. Q. At the conclusion of your testimony did Leo or Brown ask you any questions? A. No, I don't believe they did. Q. Did you testify in their presence? A. I did."

Another member of Local No. 612, Walter C. Pearson, testified:

"Q. Did you have a conversation with Mr. Leo with respect to the Union affiliation of the switchmen in general? . . . A. Yes, I did. . . . Q. Will you tell us what the conversation was? A. Well, there was not much of a conversation to it, he just says that the switchmen should be under the Trainmen. . . . Q. Now, you stated that you had another conversation with him; . . . Q. And what was the conversation? A. Well, about all that was said was he said, `It won't be long now before we will have the switchmen in our own hands, in our own Union.'"

Pearson testified to the same effect at the trial of November 2nd.

Steve Conant testified:

"Q. Will you state, as near as you can recall, what the conversation was between you and Mr. Brown? A. Well, Mr. Brown asked me if I belonged to the Railroad a number of years and that I must have belonged to the Trainmen, and I told him, `Yes, I did, I belonged to the Trainmen for a number of years and Conductors both, I double-headed.' And so he says, `Well, it is nice to double-head, they have a very nice lodge here, social activities and things like that connected with the Trainmen here; it is nice to join them and be in them,' and he told me that I could get an application blank if I wanted it from Mr. Burns, or he thought Mr. Burns had an application blank, or something like that."

While Conant did not testify at the meeting of November 2nd, he was a member of the executive board which preferred the charges against appellants.

George Doherty, another member of Local No. 612, testified:

"Q. What words were spoken in the presence of Mr. Leo either by Mr. Hodges or by Mr. Leo? A. He asked Mr. Hodges — Mr. Leo asked Mr. Hodges if he was going to join the Trainmen, and told him it would be better for him if he did; that he could get his application blank from Burns, or he would get it for him. . . . Q. Have you had any further conversation with Mr. Leo? A. I — the only conversations that I overheard Mr. Leo, I can't tell you the names of the gentlemen he was talking to, but he said it would be a Trainmen yard."

He testified substantially to the same effect at the trial of November 2nd.

The foregoing is only a sketchy resume and by no means all of the evidence of the activities of the appellants in seeking to proselyte members of the respondent union for the Brotherhood of Railroad Trainmen. The purpose, of course, was to give the Brotherhood of Railroad Trainmen jurisdiction of the employees in the shipyard eligible to membership in the Brotherhood. The record warrants this conclusion, and it is fortified by the intervention of Whitney before and after the trial of November 2nd. Even after the trial was completed, it was at Whitney's instance that the war production board intervened and, through a conciliator, attempted to reinstate appellants in the union and replace them on their jobs. It seems plain that the evidence was more than sufficient to justify the respondent union in expelling Leo and Brown from membership and rejecting Burns' application for membership.

It is asserted by appellants that certain requirements of the constitution and by-laws of the International Union of Operating Engineers were not observed in the procedure of preferring charges against the appellants, bringing about their discharge, and expelling two of them and denying a third membership in the local union. The constitution of the International parent union provides:

"No suit or other action at law or equity shall be brought in any court by any member, officer or subdivision of the International Union of Operating Engineers until and unless all rights, remedies and provisions for hearing, trial and appeal within the Organization shall have been properly followed and exhausted by the member, officer or subdivision complaining."

It is a fundamental rule, universally recognized by judicial decision of this country, both state and Federal, that courts will not take jurisdiction of controversies involvingdiscipline of members of a voluntary association in the face of such a provision of its constitution or by-laws, until allremedies afforded thereunder have been exhausted. Dragwa v.Federal Labor Union No. 23070, 136 N.J. Eq. 172, 41 A.2d 32; Lundine v. McKinney, 183 S.W.2d (Tex.Civ.App.) 265; Reno Lodge No. 99, I.O.O.F. v. Grand Lodge, I.O.O.F.,54 Kan. 73, 37 P. 1003, 26 L.R.A. 98; Howard v. Betts,190 Ga. 530, 9 S.E.2d 742; Gill v. Grand Lodge Brotherhood of R.Trainmen, 272 Ky. 328, 114 S.W.2d 123; State of North Dakotav. North Central Ass'n, etc., 23 F. Supp. 694 (affirmed99 F.2d 697); Textile Workers Union, etc. v. Federal Labor Union,etc., 240 Ala. 239, 198 So. 606, 131 A.L.R. 896.

4 Am. Jur. 466, § 17, under the general title "Associations and Clubs," states:

"It is well established that courts will not interfere with the internal affairs of voluntary associations, except in such cases as fraud or lack of jurisdiction."

Again, in § 19, at p. 467, it is stated:

"It is competent for an association and its members to agree that questions between them and the order shall be referred to, and settled by, tribunals established within the order; its by-laws may provide that a member shall not appeal to the courts to redress alleged wrongs without first appealing to the tribunals of the association, in which case the member must exhaust all the remedies so provided before he may appeal to the courts, unless these by-laws are unreasonable, or the proceedings are not conducted in accordance with the rules, but contrary to law and justice."

And, again, in § 31, p. 475, it is stated:

"It is well settled that the courts will not interfere, at the instance of an aggrieved member of an association, to reinstate him or enjoin his expulsion, until he has exhausted all the remedies afforded him by the constitution or by-laws of the association, or shows a good excuse for not having done so."

See Samuelson v. Brotherhood of R. Trainmen, 151 P.2d (Wyo.) 347, Gleason v. Thomas, 121 W. Va. 619, 5 S.E.2d 791.

7 C.J.S. 81, § 34, states:

"Even in cases otherwise warranting judicial interference the courts will not, as a rule, take jurisdiction unless the complaining member has exhausted such remedies as may be provided by the laws of the association itself."

In support of this rule, the editors of C.J.S. cite Harris v.Missouri Pac. R. Co. (D.C. Ill.), 1 F. Supp. 946; Hughes v.American Trust Co., 134 Cal.App. 485, 25 P.2d 491;Greenwood v. Building Trades Council of Sacramento, 71 Cal.App. 159,233 P. 823; Aulich v. Craigmyle, 248 Ky. 676,59 S.W.2d 560; Elfer v. Marine Engineers Beneficial Ass'n, No.12, 179 La. 383, 154 So. 32; Mulcahy v. Huddell,272 Mass. 539, 172 N.E. 796; Malloy v. Carroll, 272 Mass. 524,172 N.E. 790; Agrippino v. Perrotti, 270 Mass. 55, 169 N.E. 793; Ryanv. New York Cent. R. Co., 267 Mich. 202, 255 N.W. 365; Crislerv. Crum, 115 Neb. 375, 213 N.W. 366; Polin v. Kaplan, 231 App. Div. 849,246 N.Y. Supp. 522; Bertucci v. United Cement Masons'Union No. 1, 139 Misc. 703, 249 N.Y. Supp. 635.

The rule laid down in all of the foregoing authorities is not novel to this court. In Herman v. Plummer, 20 Wn. 363,55 P. 315, which was filed in 1898, a dispute between members of a voluntary association and the association itself was summarily instituted in court, without resort to the means of redress within the organization which had been adopted in the by-laws of the national society. They provided:

"`The executive committee shall be the court of final appeal in disputed questions arising between members of, in and betweenbranches.'"

In reaching its determination, this court said:

"It is not pretended that any effort was made by the plaintiffs to have the questions involved in the present dispute determined by the committee mentioned in that section, and it is a well established principle, applicable to controversies like the present, that until the members have exhausted their remedy within the society the courts will not assume jurisdiction of the controversy. Oliver v. Hopkins, 144 Mass. 175 (10 N.E. 776);Lafond v. Deems, 81 N.Y. 507; Chamberlain v. Lincoln,129 Mass. 70; Watson v. Jones, 13 Wall. 679."

More recently, in Local Lodge No. 104 of InternationalBrotherhood of Boiler Makers v. International Brotherhood ofBoiler Makers, 158 Wn. 480, 291 P. 328, this court said:

"It is also true that the rule which requires members of voluntary associations to exhaust their remedies within the order before applying to the courts for relief, applies primarily to controversies concerning matters of internal discipline, and notto disputes over money or tangible property, and that, in the latter class of cases, the right to resort to the courts should be held to be waived only by an express agreement to submit such controversies to some specified method of arbitration." (Italics mine.)

Appellants contend that their cases fall within the latter class. With this contention I cannot agree. The proceedings were initiated and carried out solely as disciplinary measures to effect a cessation of proselyting and soliciting of respondent's members for the Brotherhood of Railroad Trainmen and to enforce suitable penalties against the appellants for such soliciting. No "money or tangible property" or the right thereto was involved, either in the charges or the hearings thereon.

Under no circumstances could the present damage actions be instituted by appellants unless and until they could show that they had been wrongfully expelled from respondent union. In order to make their expulsion wrongful, it seems elementary to point out that they were required to exhaust all of their remedies within the legal framework of their own organization, as required by their own constitution and by-laws, before resorting to the courts.

"`Courts never interfere, except to ascertain whether or not the proceeding was pursuant to the rules and laws of the society, whether or not the proceeding was in good faith, and whether or not there was anything in the proceeding in violation of the laws of the land.'" Kelly v. Grand Circle, etc., Woodcraft, 40 Wn. 691,695, 82 P. 1007.

The constitution of respondent union provides:

"Any member of a Local Union fined, disciplined or expelled shall have the right to appeal to the General Executive Board in the manner and form provided in the Constitution and Laws and Rules established thereunder. Any appeal rightfully taken and properly filed wherein the penalty of expulsion is imposed shall cause the order of expulsion to be stayed until decision of the General Executive Board thereon."

Had Leo and Brown, who were full-fledged members of respondent union, given notice of appeal and carried their case to the general executive board and, if necessary, as permitted by the constitution of the International Union, to the general president and to the next convention of the International Union, the order of expulsion as to them would have been stayed, their employment in the Seattle-Tacoma shipyard would have continued, and they would not have lost wages which they seek to collect in the present actions.

The same rule applies to the appellant Burns. I take no issue with the majority's finding that Burns was a de facto member of the respondent union. He was recognized as a member by the officers and fellow members of the union. The letter of notification of charges pending against him referred to him as a member and asked him to appear and defend himself under the rules of the union. The letter of Palmatier to Herzog, personnel manager of the Seattle-Tacoma shipyards, requesting the discharge of Burns, referred to him as a member of Local No. 612. In fact, his status as an employee of the Seattle-Tacoma shipyard, under the closed-shop agreement to which that institution was a party, could only be that of a union member, for all others were prohibited from participation in its operation.

Certainly, respondent union, in the face of these facts, would be estopped from asserting that Burns did not have the status of membership during the period of his employment in the shipyard. This being so, he, too, being a de facto member of Local No. 612, was bound to exhaust all of the remedies afforded him by the constitution and by-laws of his local and of the International parent organization.

Neither Leo, Brown, nor Burns endeavored to give such notice of appeal, or to carry their grievances to higher authority, as required by the constitution and by-laws of their local and parent organizations. The majority opinion states that the remedies by appeal would have been inadequate and takes the position that it was not necessary for the appellants to appeal. The constitution and by-laws of the local and International organizations constituted a contract between the organization and its members. U'Renn v. GreatNorthern R. Co., 139 Wn. 366, 247 P. 726. Appellants were bound by their contractual obligation and were in no position to seek relief in the courts, since they did not exhaust the remedies afforded them.

The constitution and by-laws of Local Union No. 612 and of International Union of Operating Engineers each provides complete and adequate legal machinery for disposition of appellants' rights and requires that they resort to such machinery in their quest for redress. Cases heretofore cited herein amply support this proposition. So far as the decisions of this court indicate, there has been no deviation from that rule. In Constantino v.Moreschi, 9 Wn.2d 638, 115 P.2d 955, this court, speaking through Judge Jeffers, in passing upon a similar question, said:

"Holding as we do that appellant local is and has been a member of the Western Washington District Council, and as such member is amenable to its constitution and by-laws, and to the constitution and by-laws of the international, Local 440 is not entitled toapply to the courts for relief, for the reason that it has notexhausted the remedy provided by its own organization. The facts in this case do not bring appellant local within the exception noted in Local Lodge No. 104 etc. v. International Brotherhoodetc., 158 Wn. 480, 291 P. 328." (Italics mine.)

The majority opinion cites the recent California case ofSmetherham v. Laundry Workers' Union, 44 Cal.App.2d 131,111 P.2d 948, and quotes therefrom in support of its theory that a member of a labor organization may resort to the courts with a suit for damages for wages lost, following unwarranted expulsion from the union. In that case, the plaintiff, a woman laundry worker, assaulted another woman laundry worker, who thereupon filed written charges against her with the executive board of the local laundry workers' union. The executive board heard the charges, with the person charged, Josie Smetherham, present at the hearing, and ordered her expulsion. This recommendation was later approved and adopted by a vote of the members of the organization. But the interesting portion of the opinion in that case, when considered in the light of the rule sought for in this dissenting opinion, that an expelled member of a labor union must exhaust his legal remedies of appeal within the association before resorting to the courts, is to be found in the language used by the California court of appeals:

"An appeal to the Laundry Workers' International Union, which was not determined for a year or more, resulted in affirmance by that organization. This petition for a writ of mandamus was then filed in the Superior Court of Sacramento County."

So far as the writer has been able to learn, from examination of the authorities, there is no case holding that an aggrieved member of a labor union may not resort to the courts after he shall have exhausted all of the legal remedies provided by the constitution and by-laws of his organization and the parent organization from which it derives its charter. My only contention here is that such aggrieved member must exhaust the legal remedies set up in the constitution and by-laws of his union before, and as a condition precedent to, his going into court for redress.

I believe that the judgment of the trial court should be affirmed.