Berryman v. International Broth. of Elec. Workers

• Decision Date: 11 July 1966
• Docket Number: No. 5055,5055
• Citation: 416 P.2d 387,82 Nev. 277
• Parties: James BERRYMAN et al., Appellants, v. INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, Respondent.
• Court: Nevada Supreme Court

Page 387

416 P.2d 387

82 Nev. 277

James BERRYMAN et al., Appellants, v. INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, Respondent.

No. 5055.

Supreme Court of Nevada.

July 11, 1966.

Breen & Young, and Jerry Carr Whitehead and Frank Fahrenkopf, Jr., Reno, for appellants.

Bissett, Logar & Groves, Reno, Neyhart & Grodin, San Francisco, Cal., for respondent.

OPINION

THOMPSON, Justice.

This appeal is from an order of the district court refusing a preliminary injunction against the complction of intra-union disciplinary procedures. The appeal is authorized. NRCP 72(b)(2). The lower court in its discretion ruled that the intra-union dispute was not ripe for court intervention since the prescribed union procedures for resolving the dispute had not been pursued to completion, nor had the plaintiffs below, appellants here, shown irreparable or any injury. We think that the lower court ruled correctly and affirm.

The plaintiffs-appellants are members in good standing of the International Brotherhood of Electrical Workers and of Local 401 thereof. Because of dissension within the local union, its executive board invited the International President of I.B.E.W. to establish a trusteeship over Local 401, as provided for by the constitution and bylaws of the I.B.E.W. This was done in January 1965. On April 6, 1965, John Byrne, the elected business manager of Local 401, filed charges under the I.B.E.W. constitution against 43 members of the I.B.E.W., including the plaintiffs-appellants in this action. He alleged that the 43 members had engaged in conduct violative of their obligations under the I.B.E.W. constitution by encouraging a series of widespread, unauthorized work stoppages contrary to union policy. It was also claimed that certain of the members had participated in picketing the office and premises of Local 401, thereby interfering with the normal operations of the union. The charges were made in writing and the 43 members notified by registered mail.

The dispute within Local 401 apparently made it impossible to utilize the normal method of presenting the dispute to the local union executive board. Therefore, the charges were referred to and entertained by the International Executive Council of the I.B.E.W. pursuant to Art. 10, § 4, and Art. XXVII, § 2(19) of the I.B.E.W. constitution. ¹ The International Executive Council delegated to its president and secretary, as a committee, the power to conduct a hearing on the charges made. The committee had no power of decision or recommendation, but only the power to conduct the hearing, after which the International Executive Council would decide, on the record made, whether disciplinary action should be taken.

In accordance with rules of procedure adopted by the I.E.C. and pursuant to written notice, hearings were held in Reno, Nevada, for a group of the appellants. A further hearing scheduled for that group did not take place because the I.E.C. chairman was served with a temporary restraining order obtained by the appellants when this suit was commenced.

The action below was for declaratory relief. NRS 30.010--30.160; NRCP 57. The plaintiffs allege that the intra-union hearings held, but not completed, were fundamentally unfair and violated due process requirements of the federal and state constitutions. They claim that they were not allowed counsel at the hearings; that he prosecutor was allowed to be a witness; that evidence was received from persons not present and subject to cross examination; and other similar matters. The plaintiffs requested the court to declare 'all prior proceedings void.'

The propriety of declaratory relief in this setting is not an issue on appeal and we express no opinion on the point. As already noted, a temporary restraining order was granted on the day suit was commenced and, later, a motion for preliminary injunction was heard and denied.

1. Whether a preliminary injunction should be granted or refused is a question addressed to the discretion of the district court. Rhodes Min. Co. v. Belleville Co., 32 Nev. 230, 106 P. 561, 118 P. 813 (1910). Once that court has ruled, and its ruling has been challenged on appeal, our task is to search the record and deide whether the lower court acted within permissible limits of judicial discretion. For the reasons hereafter mentioned, we think it clear that the district court could refuse to grant a preliminary injunction without fear of reversal on review.

2. With some exceptions not here applicable, injunctive relief is not available in the absence of actual or threatened injury, loss or damage. NRCP 65; Carroll v. Associated Musicians of Greater New York, 206 F.Supp. 462 (1962), affirmed 2 Cir., 316 F.2d 574 (1963). There should exist the reasonable probability that real injury will occur if the injunction does not issue. Sherman v. Clark, 4 Nev. 138 (1868). In the case before us the plaintiffs had incurred no damage or injury, actual or threatened. The intra-union disciplinary procedures were blocked by this law suit. The hearings had not been completed, nor had the International Executive Council been afforded the opportunity to decide whether the charges filed against ...