Serio v. Liss

• Decision Date: 09 December 1960
• Docket Number: Civil Action No. 944-60.
• Citation: 189 F. Supp. 358
• Parties: Harry SERIO, Plaintiff, v. Milton J. LISS, President of Local No. 478 of the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America; and Local No. 478 of the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, and James P. Mitchell, Secretary of Labor of the United States, Defendants.
• Court: U.S. District Court — District of New Jersey

189 F. Supp. 358

Harry SERIO, Plaintiff, v. Milton J. LISS, President of Local No. 478 of the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America; and Local No. 478 of the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, and James P. Mitchell, Secretary of Labor of the United States, Defendants.

Civil Action No. 944-60.

United States District Court D. New Jersey.

December 9, 1960.

Parsonnet, Weitzman & Oransky, Newark, N. J., for plaintiff by Thomas L. Parsonnet, Newark, N. J.

Donald Legow, Newark, N. J., for defendants President and Local.

Chester A. Weidenburner, U. S. Atty., Newark, N. J., for defendant James P. Mitchell, Secretary.

WORTENDYKE, District Judge.

Plaintiff (Serio), a resident of this District, is an elected Business Agent of the defendant Local No. 478 (Local). Defendant Liss is President of Local, which is an unincorporated labor organization having its principal office in this District, and chartered by and a subordinate organization of the stated International. Serio's term of office as Business Agent will expire December 31, 1962. He receives a salary of $14,300.00 annually for his services in that office.

On October 5, 1953 Serio was convicted in an appropriate court of the State of New Jersey of the crime of atrocious assault and battery, and, on October 14, 1953 he was sentenced to a term of imprisonment of from two to three years to commence on the latter date. On March 30, 1955 Serio was paroled in accordance with N.J.S.A. 30:4-123.15, and was relieved of the conditions of his parole on December 30, 1955.

By letter of October 19, 1960 Liss, as President of the Local, was advised by an Assistant Attorney General of the United States that, by reason of Serio's conviction, his continuing to serve in his position as Business Agent of Local would constitute a violation of section 504 of the Labor-Management Reporting and Disclosure Act of 1959 (29 U.S.C.A. § 504). The letter reminded Liss that the statute forbade the Local and its officers from knowingly permitting any person "`to assume or hold any office or paid position in violation of'" the cited statutory section. By letter of its "House Counsel", dated October 27, 1960, the International to which the Local belonged directed the removal of Serio from his office on November 2, 1960, "unless the Court rules on that date that Brother Serio is entitled to serve as a business agent or unless the Department of Justice enters a formal stipulation that Brother Serio may continue to serve as the business agent pending the final decision of the Court."

On November 2, 1960, upon filing his verified complaint in this action for injunctive relief and a declaratory judgment respecting his right to continue in office, Serio sought and obtained an order, with temporary restraint, directing Liss and Local to show cause why they should not be enjoined from removing Serio from office or disturbing his tenure thereof. Prior to the adjourned return of that order, and upon due application therefor and with the consent of the parties, leave was granted to James P. Mitchell, Secretary of Labor of the United States of America, to intervene in this action.

Defendants having answered, admitting the allegations of the complaint, the cause came on to be heard on return of the order to show cause by way of cross-motions for summary judgment. These motions presented two questions: (1) Has this Court jurisdiction of this action? and (2) Is plaintiff entitled to continue to occupy his office as business agent of defendant Local?

No genuine issue of fact is presented.

The Court recognizes its duty to scrutinize, at the outset, the existence of the asserted jurisdiction. Ambassador East, Inc. v. Orsatti, Inc., 3 Cir., 1958, 257 F.2d 79. The complaint alleges that the action arises under 73 Stat. 519, P.L. 86-257 (The Labor-Management Reporting and Disclosure Act of 1959), 29 U.S.C.A. § 504. Plaintiff presumably invokes the provisions of 28 U.S.C.A. § 1331(a) in support of his contention that this Court has jurisdiction, although he does not expressly so plead. Neither does he refer to the provisions of 28 U.S.C.A. § 2201 et seq., as support for his prayer for a declaratory judgment. He does, however, contend that the action "arises under" the Labor-Management Reporting and Disclosure Act, and alleges that the matter in controversy exceeds the sum or value of $10,000. 28 U.S.C.A. § 1331(a). In support of this jurisdictional contention plaintiff attempts to distinguish the factually similar cases of Strauss v. International Brotherhood of Teamsters, etc. et al., D.C.E.D.Pa.1959, 179 F.Supp. 297, 299, and Jackson v. The Martin Company, D.C.Md.1960, 180 F.Supp. 475. In Strauss the plaintiff had been "employed" as a Business Agent of the Local, continuously from 1954, although he had been convicted of a serious crime in 1941, for which he served a term of imprisonment. He was placed on parole November 2, 1949. The "period of parole ended on February 11, 1956, when he had completed his full sentence." On November 20, 1959, Strauss was relieved of his position as Business Agent by the Local, at the direction of its International, which asserted that he was ineligible to occupy the position because less than five years had then expired since the termination of his parole. 29 U.S.C.A. § 504. In the action which he brought in the District Court, Strauss sought equitable relief including reinstatement and a declaratory judgment interpreting section 504 as applied to his case. Judge Clary dismissed the action on return of an order to show cause why an injunction should not issue, upon the ground that the Court was without jurisdiction over the subject matter of the action. His opinion held that the right for which the plaintiff sought protection "as against the defendant (International Brotherhood)" was "the right to be free from discharge as business agent of a labor union, when that discharge is based solely upon the union's honest misinterpretation of a new Federal law. The plaintiff was not elected to this position nor does it appear that the position necessarily required his being a member of the local union. As between the parties to this suit, this is at best a contractual right or a right of `status'." The case further held that such a right was "enforceable, if at all, in the common law courts of the state in which the (employment) contract arose," and that there was nothing in the Federal Act indicative of "an intention by Congress to enter such an area." Because the Court found no Federal question involved, it rejected jurisdiction, and therefore did not reach the necessity of construing section 504 of the Act. Upon the jurisdictional question in Strauss, Judge Clary quotes from the opinion of Mr. Justice Cardozo in Gully v. First National Bank, 1936, 299 U.S. 109, at page 112, 57 S.Ct. 96, at page 97, 81 L. Ed. 70, as follows: "`To bring a case within the statute, a right or immunity created by the Constitution or laws of the United States must be an element, and an essential one, of the plaintiff's cause of action.'" In Gully no Federal Act was involved. The action was upon a contract which was enforceable under the law of the State of Mississippi. Although a Federal law relating to national banks underlay one of the questions presented, the action did not "arise under" that law because the "right" asserted was not "created" thereby. In support of the general principle stated in Gully, there is cited, inter alia, Starin v. City of New York, 1885, 115 U.S. 248, at page 257, 6 S.Ct. 28, at page 31, 29 L.Ed. 388, in the opinion in which we find the following elaboration of the principle: "The character of a case is determined by the questions involved. * * * If from the questions it appears that some title, right, privilege, or immunity, on which the recovery depends, will be defeated by one construction of * * * a law of the United States, or sustained by the opposite construction, the case will be one arising under the * * * laws of the United States, within the meaning of that term as used in the act * * *; otherwise not." Cited in support of the foregoing description is Cohens v. Commonwealth of Virginia, 1821, 6 Wheat. 264, 379, 5 L.Ed. 257. See also cases cited and discussed in M'Goon v. Northern Pacific Railway Co., D.C.N.D., 1913, 204 F. 998, at pages 1000-1001.

The Jackson case, supra, was an action for a declaratory judgment and for injunctive relief brought by a decertified elected Committeeman of a Local union who had been declared ineligible to hold his position by the Executive Board of the Local under § 504 of the Act. The plaintiff in that case sued both his business employer and his Local. As a result of his decertification by his Local he had lost his super-seniority in his employment, and this induced his discharge therefrom by the employer. Upon the issue of jurisdiction claimed to arise "(A) under 29 U.S.C.A. § 412, read in connection with 29 U.S.C.A. §§ 411(a)(5), 504 and 529; (B) under 28 U.S.C.A. § 1331; or (C) under 28 U.S.C.A. § 1337" 180 F.Supp. 478, Chief Judge Thomsen concluded that his Court was without jurisdiction of the subject matter under any of those sections. In the Jackson case as in the case at bar, plaintiff was an officer of the Local union, as distinguished from an employee. He was required by the constitution of the International union to take the oath of office required of officers, and his election was provided for in the by-laws of the Local. Chief Judge Thomsen followed Judge Clary in holding that 29 U.S.C.A. §§ 411 to 415 (The Bill of Rights Subchapter), "deals with the union-member relationship, not with the union-officer or union-employee relationships." Chief Judge Thomsen incorporates in his opinion a quotation from Senator Kennedy's statement in the Senate debate on the conference report on the bill that "`The so-called Bil...