Leo v. Local Union No. 612 of International Union of Operating Engineers, 29792.

• Decision Date: 25 November 1946
• Docket Number: 29792.
• Citation: 26 Wn.2d 498,174 P.2d 523
• Parties: LEO v. LOCAL UNION NO. 612 OF INTERNATIONAL UNION OF OPERATING ENGINEERS et al. BROWN v. SAME. BURNS v. SAME.
• Court: Washington Supreme Court

174 P.2d 523

26 Wn.2d 498

LEO v. LOCAL UNION NO. 612 OF INTERNATIONAL UNION OF OPERATING ENGINEERS et al.

BROWN v. SAME.

BURNS v. SAME.

No. 29792.

Supreme Court of Washington, En Banc.

November 25, 1946

Consolidated actions by Howard A. Leo, by Fred E. Brown, and by J. B Burns against Local Union No. 612 of International Union of Operating Engineers, a voluntary association, and others, to secure plaintiffs' reinstatement as members of the defendant union, and for damages for their alleged wrongful expulsion from the defendant union and consequent loss of employment. From judgment for plaintiffs for only nominal amounts, the plaintiffs appeal.

Judgment reversed and cause remanded with instructions to enter judgment for plaintiffs for larger amounts.

CONNELLY J., dissenting.

Appeal from Superior Court, Pierce County; E. F Freeman, judge.

Henderson Carnahan & Thompson, of Tacoma, for appellants.

L. Presley Gill, of Seattle, for respondents.

JEFFERS Justice.

The plaintiffs, Howard A. Leo, Fred E. Brown and J. B. Burns, originally instituted these actions separately against Local Union No. 612 of International Union of Operating Engineers, James Estep, as president thereof, and Earl Palmatier, as business agent and financial secretary thereof, to secure their reinstatement as members of defendant union, and for damages sustained by them as a result of their alleged expulsion from the union, which expulsion had been preceded by the loss of their employment upon demand of the union. Upon stipulation of the parties, the actions were consolidated for trial purposes only. After the court had filed a memorandum opinion, but Before the entry of judgment, the three cases were, on stipulation, consolidated for all purposes, and the trial court made and entered single findings of fact, conclusions of law and judgment.

The Leo complaint asks for damages against the union from October 7, 1942, the alleged date that his compensation ceased, to the date of trial, based on a weekly compensation of $72.80, less any sums received by him from other employment.

The Brown complaint asks for damages from October 7, 1942, to the date of trial, based on a weekly wage of $83.72, less any sum received by him from other employment.

The Burns complaint seeks to recover judgment for damages sustained from October 7, 1942, to the date of trial, based on a weekly wage of $70.98, less any sums received from other employment.

The cause came on for hearing Before the court on November 27, 1944. Some twenty-seven witnesses were called and testified. On December 18, 1944, the trial court filed its memorandum opinion, and on July 11, 1945, the court made and entered findings of fact, conclusions of law and judgment. Plaintiffs appealed from the judgment entered. Defendants took no cross-appeal.

In view of the questions raised by plaintiffs, we shall refer to the judgment entered. The court awarded Leo judgment against Local No. 612 for the sum of $218.40. This allowance was based upon finding No. 13, which states:

'That the Seattle-Tacoma shipyards continued in full operation at all times from October 7, 1942 to November 1, 1944. That had the plaintiff Howard A. Leo continued in the occupation in which he was engaged at the time of his discharge from October 12, 1942 to October 1, 1944 he would have earned as wages the total sum of $7,498.40. That during said period the said plaintiff Howard A. Leo exercised reasonable diligence to secure other employment, and that during said period he earned the total sum of $2,450.00. That during the period from October 12, 1942 to November 2, 1942 the plaintiff Howard A. Leo, by reason of his expulsion from the defendant union, was damaged in the sum of $218.40.'

The court awarded plaintiff Fred E. Brown damages in the sum of $306.96. This award was based on the following facts found in finding No. 14:

'That had the plaintiff Fred E. Brown continued in the occupation in which he was engaged at the time of his discharge from October 7, 1942 to November 1, 1944 he would have earned as wages the total sum of $8,958.04. That during said period the said plaintiff exercised due diligence to secure other employment and that he earned during said period the total sum of $4,310.84. That during the period from October 6, 1942 to Nov. 2, 1942 the plaintiff Fred E. Brown, by reason of his expulsion from the defendant union, was damaged in the sum of $306.96.'

The court entered judgment in favor of J. B. Burns for the sum of $118.30. This amount was arrived at as follows:

'That had the plaintiff J. B. Burns continued in the occupation in which he was engaged at the time of his discharge from October 7, 1942 to November 1, 1944 he would have earned the total wages of $7,594.86. That during said period the said plaintiff exercised due diligence to secure other employment and mitigate damages and that he earned during said period the total sum of $1,573.66. That during the period from October 7, 1942 to October 19, 1942 the plaintiff J. B. Burns, by reason of his expulsion from the defendant union, was damaged in the sum of $118.30.'

We do not mean to state that the above findings of fact are all the findings upon which the judgment is based, but they are the findings relative to the amount earned by the respective plaintiffs, and time for which the court allowed damages.

As to Leo and Brown, the court allowed them damages to November 2, 1942, on which date a purported trial was had within the union, as a result of which the union purported to expel them. Burns was allowed damages to October 19, 1942, at which time the union purported to act on his application for membership and deny the same. No further action was taken by the union as to Burns, and he never had a trial to determine what his rights, if any, were.

While it does not specifically appear from the findings, conclusions or judgment upon what ground the trial court allowed plaintiffs Leo and Brown damages only to November 2, 1942, and Burns to October 19, 1942, we find in the memorandum opinion the following statement:

'That the defendant Union and its business agent, Mr. Palmatier, were the direct cause of the plaintiffs being severed from their employment by the Shipbuilding Corporation cannot be gainsaid. That their discharge was caused prematurely and Before any hearing could be had, subjects the Union to liability for damages occasioned thereby but when the application of Mr. Burns was denied [Oct. 19, 1942] he thereafter had no further cause for complaint, as the Union had a perfect right to accept or reject the application of any individual, whether for cause or not. Therefore the plaintiff Burns has been damaged by reason of the loss of wages from October 7th to October 19th at the rate of $70.98 per week, amounting in all to the sum of $118.30. The plaintiff Leo is entitled to recover from October 12th to November 2nd, a total of three weeks, amounting to the sum of $218.40. The plaintiff Brown is entitled to recover from October 6, 1942 to November 2, 1942, three weeks and four days, amount to the sum of $306.96.'

Plaintiffs timely filed a motion for new trial, which was denied, and this appeal is by plaintiffs from the judgment entered.

As heretofore stated, while the judgment was against the union, in so far as damages were concerned, respondents did not cross-appeal, apparently being satisfied with the conclusions reached by the trial court that appellants were not entitled to maintain this action in so far as any claim for damages after November 2, 1942, the date of the purported trial of Leo and Brown, is concerned, and as to Burns after October 19, 1942, the day his application for membership was rejected, the court being of the opinion appellants were relegated to the procedure provided by the constitution and by-laws of the union to obtain any redress to which they may have been entitled by the action of the union.

Appellants state the court erred (1) in holding that the application of appellant Burns to become a member of respondent union was not accepted; (2) in holding that in any event this application was legally rejected; (3) in holding that the denial to class B members of the right to vote at the meeting of November 2, 1942, was lawful and not against public policy; (4) in holding that the failure of Brown and Leo to appeal to the International union precluded them from recovering damages accruing between November 2, 1942, and the date of trial; (5) in denying appellants' motion for new trial; (6) in refusing to enter judgment for appellants in the following amounts: Burns, $6,021.20, Brown, $4,647.20, Leo, $5,048.40; (7) in refusing to pass upon the following questions presented by the pleadings and the evidence: (a) Whether the charges against appellants stated any grounds for expulsion even if true, (b) whether these charges were prepared, filed and served in the manner required by respondent's constitution, (c) whether appellants Brown and Leo were given a fair trial, and (d) whetehr there was any evidence offered at the trial to support the charge, even if the charge be deemed sufficient.

Before discussing appellants' assignments of error, we think it necessary to give some of the background which gave rise to this litigation. Unless otherwise stated, the facts as set out herein will be in substance as found by the trial court, such facts being undisputed.

Local Union No. 612 is a local union of the International Union of Operating Engineers. Respondent union operated under and by virtue of a charter granted by the International under the constitution of the International, which constitution controls and binds all actions of respondent in so far as the terms of such constitution are...