Deluhery v. Marine Cooks and Stewards Union

• Decision Date: 03 December 1962
• Docket Number: No. 1230-61-EC.,1230-61-EC.
• Citation: 211 F. Supp. 529
• Parties: James O. DELUHERY, Plaintiff, v. MARINE COOKS AND STEWARDS UNION, AFL-CIO, an unincorporated association, Defendant.
• Court: U.S. District Court — Southern District of California

211 F. Supp. 529

James O. DELUHERY, Plaintiff, v. MARINE COOKS AND STEWARDS UNION, AFL-CIO, an unincorporated association, Defendant.

No. 1230-61-EC.

United States District Court S. D. California, Central Division.

December 3, 1962.

Jack Levine, Los Angeles, Cal., for plaintiff.

Brundage, Hackler & Flaum, Los Angeles, Cal., for defendant.

CRARY, District Judge.

Plaintiff, a member of defendant Union for approximately ten years, seeks to enjoin said Union from carrying out its Trial Committee's recommendations, to wit, the expelling of plaintiff from membership in the Union unless plaintiff is afforded a reasonable time to prepare a defense; is served with written, specific charges; and afforded a fair hearing. The charges against plaintiff, as detailed by a Bill of Particulars, alleged misconduct on the part of plaintiff by way of mishandling Union funds, unauthorized use of Union records, and acts injurious to the defendant Union as set forth in the charges, which consist of seven counts, as amplified in the Bill of Particulars. The plaintiff asserts that unless defendant Union is enjoined from carrying out the recommendations of its Trial Committee plaintiff will lose all rights as a member of the Union in violation of the constitution of the defendant Union and in violation of Section 101(a) (5) of the Landrum-Griffin Act. 29 U.S.C. § 411(a) (5) The injunction is sought under Section 102 of the said Act. 29 U.S.C. § 412

It is the position of the plaintiff that the evidence in the instant action requires the court to grant the relief prayed on the theory that the case is within an exception to the general rule, that the Union administrative remedies as prescribed and set forth in its constitution (Deft.'s Ex.G) must first be asserted before seeking relief in the United States District Court. See also 29 U.S. C. § 411(a) (4).

Plaintiff contends that he is within such an exception to the general rule because, he asserts,

a. Failure of the Trial Committee to allow plaintiff reasonable time to prepare his case for trial,

b. The exhaustion of administrative remedies is not mandatory,

c. That it would be futile and fruitless to exhaust administrative remedies,

d. That the exhaustion of administrative remedies would subject plaintiff to irreparable injury in a practical sense, and e. He has been "disciplined" as a result of findings and recommendations of the Trial Committee.

The court finds from the evidence and the agreed facts as set forth in the pretrial order:

1. The charges (Pltf.'s Ex. 1) against plaintiff were received by him on August 18, 1961, at approximately 10 a. m. aboard the SS Matsonia on its return to Los Angeles from Honolulu.

2. That the plaintiff herein was employed by the shipowner at the time.

3. That plaintiff shipped out for Honolulu aboard the Matsonia on or about 4 p. m. on August 19, 1961.

4. That on August 20, 1961, plaintiff addressed a letter to the said Trial Committee stating, among other things, that he had received the charges, was not notified of the date of the trial as required by the constitution of the Union (Deft.'s Ex. G), and that the charges did not inform him "adequately of what wrong I have done nor do the charges state the time and place of such alleged violations." Again in the letter he states "* * * I reiterate, how could I defend myself against these charges, when the allegations are not specific. They do not state adequately the alleged wrong, neither do they state the time or place." Said letter, mailed August 24, 1961, was received by defendant on or about August 25, 1961.

5. On August 26, 1961, plaintiff received aboard ship a radiogram from the Trial Committee, Wilmington, California, stating that his trial would take place on August 29, 1961, at 2 p. m.

6. A Bill of Particulars which plaintiff testified gave him sufficient information as to the charges to allow him to prepare for a defense if given two weeks to accomplish such preparation, was served on plaintiff by Joseph Goren, Port Agent of Wilmington Branch of defendant Union, on August 29, 1961, at about 10:30 a. m., following docking of the SS Matsonia at Wilmington about 10 a. m. on said date.

7. The members of the Wilmington Branch of the Union voted to accept the charges in their original form (Pltf.'s Ex. 1) but did not vote on the charges as amplified by the Bill of Particulars. The court concludes that no vote of the Wilmington Branch was required after the filing of the Bill of Particulars.

8. Plaintiff appeared before the Trial Committee at 2 p. m. on August 29, 1961, with three members of the Union, who, the testimony shows, were to be witnesses to what occurred at the proceedings before the Trial Committee but not as witnesses to testify on behalf of plaintiff as to the merits of the charges. One of the said three witnesses, to wit, Scott Unroe, was to assist plaintiff in the pending matter.

9. The Summary of the Trial Committee's hearing (Deft.'s Ex. A), with respect to what occurred at the August 29th hearing, notes on page 3 of the Summary that James Deluhery stated that he objected to three members serving on the Committee, naming said members, but that the said Deluhery refused to state his reasons for his contention that said members were disqualified on the grounds he was not required to do so by the Union constitution. The Summary further observes that the said Deluhery thereafter also objected "that the charges presented against him are not sufficient to apprise him of the time and place of the commissions of the offenses alleged as committed by him" and that he did thereafter advise the Trial Committee they could go on with the trial and left the premises with his selected assistant, Scott Unroe, and witnesses Montalbo and Martella.

The plaintiff and witness Unroe testified in substance that plaintiff stated, among other things, at the hearing that he received the Bill of Particulars only 3½ hours prior to the hearing and could not possibly prepare a defense in that time. Plaintiff did not make a formal request for continuance of trial but the court finds that specific request was not necessary in the circumstances, and that plaintiff's statements to the Trial Committee were sufficient to require the Trial Committee to continue the trial to give plaintiff a reasonable time to prepare his defense after receipt of the Bill of Particulars, and that a continuance of twenty-four hours did not give plaintiff a reasonable time to prepare his defense in the circumstances.

10. After the plaintiff left the hearing the Trial Committee postponed the trial until August 30, 1961, at 2 p. m., and plaintiff was notified of the postponement at about 8:45 a. m., August 30, 1961.

11. Plaintiff did not appear at the hearing on August 30th and was tried in absentia, as evidenced by the Summary of the trial. (Deft.'s Ex. A) The plaintiff was found guilty of all charges on all seven counts and it was recommended by the Trial Committee that he be expelled.

12. Plaintiff sailed for Honolulu aboard the SS Matsonia at 4 p. m., August 31, 1961.

13. Copies of the Summary of the trial (Deft.'s Ex. A), which appears to have been dated in September but does not set forth the day, were forthwith sent to all Branches of the Union for consideration and action on the findings and recommendations of the Trial Committee in accordance with Section 5 of Article XIV of the Union constitution. (Deft.'s Ex. G) No action has been taken re the said findings and recommendations by any Branch of the Union pending judgment in the instant case.

14. It appears from the evidence that prior to the filing of the charges against plaintiff herein there had been controversy among the Union members and candidates for Port Agent of the Wilmington Branch of the Union and that among the candidates for Port Agent were plaintiff herein and Joseph Goren, the Port Agent of said Branch at the time the charges were filed and the hearings of the pre-trial committee with respect thereto.

THE ISSUES

The issues of fact and law, as agreed by the parties and as set forth on page 4 of the pre-trial order, are as follows:

A. Issues of fact:

1. Was plaintiff given a reasonable time to prepare his defense?

2. Was plaintiff afforded a full and fair hearing?

3. Does plaintiff have a meritorious defense to the charges lodged against him?

B. Issues of law:

1. Was the plaintiff obliged to exhaust his administrative remedies before appealing to this Court for relief?

2. Was plaintiff "disciplined" within the meaning of Section 101(a) (5) of the Landrum-Griffin Act?

3. Has plaintiff waived any of his objections with respect to adequacy of notice and the conduct of the hearing?

As to the issues of fact, the court finds that the plaintiff was not given a reasonable time to prepare his defense, and that by reason thereof, was not afforded a full and fair hearing. Plaintiff testified at the trial that he had a meritorious defense to the charges lodged against him and said testimony is uncontradicted.

With respect to the issues of law, the court concludes,

1. That plaintiff was in the circumstances obligated to exhaust his administrative remedies before any right to relief by this court,

2. Plaintiff has not received "other discipline" within the meaning of Section 101(a) (5) of the Landrum-Griffin Act 29 U.S.C. § 411, and

3. Plaintiff has not waived any of his objections with respect to the adequacy of notice and conduct of the hearing.

With respect to "other discipline", if the plaintiff's position is sound it would appear that a finding of guilt by a Trial Committee with recommended punishment would in all cases constitute "other discipline" within the Act, which would allow the courts to intervene for the purpose of ascertaining whether any irregularities occurred in the proceedings of the Trial Committee and grant relief if so found. This would virtually make ineffective and superfluous the review and appellate procedures provided...