Eisman v. Baltimore Reg. Joint Bd. of Amal. Cloth. Wkrs.

• Decision Date: 29 November 1972
• Docket Number: Civ. No. 71-298-M.
• Parties: Burt EISMAN v. BALTIMORE REGIONAL JOINT BOARD OF the AMALGAMATED CLOTHING WORKERS OF AMERICA et al.
• Court: U.S. District Court — District of Maryland

352 F. Supp. 429

Burt EISMAN v. BALTIMORE REGIONAL JOINT BOARD OF the AMALGAMATED CLOTHING WORKERS OF AMERICA et al.

Civ. No. 71-298-M.

United States District Court, D. Maryland.

November 29, 1972.

COPYRIGHT MATERIAL OMITTED

Leonard J. Kerpelman, Baltimore, Md., for plaintiff.

Bernard W. Rubenstein and Edelman, Levin, Levy & Rubenstein, Baltimore, Md., for defendants.

MEMORANDUM OPINION

JAMES R. MILLER, Jr., District Judge.

Plaintiff Burt Eisman has brought this action for money damages against the Amalgamated Clothing Workers of America (ACWA), the Baltimore Regional Joint Board of the Amalgamated Clothing Workers of America (Joint Board), and Romeo Esposito and Sam Nocella, respectively Assistant Manager and Manager of the Joint Board, under the provisions of the Labor-Management Reporting and Disclosure Act (LMRDA), 29 U.S.C.A. § 411 et seq. Plaintiff alleges that he was wrongfully expelled from the ACWA without the benefit of due process as guaranteed by section 101(a)(5) of LMRDA (29 U.S. C.A. § 411(a)(5)) which provides that:

"No member of any labor organization may be fined, suspended, expelled, or otherwise disciplined except for nonpayment of dues by such organization or by any officer thereof unless such member has been (A) served with written specific charges; (B) given a reasonable time to prepare his defense; (C) afforded a full and fair hearing."

For the reasons set forth in a memorandum opinion herein dated March 20, 1972, this court granted ACWA's motion for summary judgment, thus releasing ACWA from potential liability to the plaintiff.

In response to a request by plaintiff for a jury trial on the claims against the remaining defendants, this court previously ruled that the preliminary question of whether plaintiff had inexcusably failed to exhaust his intra-union remedies before seeking relief from the court, and the more primary issue of whether plaintiff's expulsion was wrongful are matters for the court's determination without the aid of a jury.¹ This court also ruled preliminarily that, this being a suit for damages, the plaintiff, if successful on the issues reserved solely to the court for determination, is entitled to have a jury decide whether the wrongful conduct of the union was a proximate cause of his injuries and the amount of his damages.²

A hearing was held by the court on the former two issues. For the reasons set forth below this court is of the opinion that the plaintiff has not inexcusably failed to exhaust his intra-union remedies and that the expulsion of plaintiff from the ACWA was in violation of his rights guaranteed by the LMRDA.

Plaintiff Burt Eisman was a member in good standing of Local Union No. 15 of the ACWA in November, 1970. The Constitution and By-laws of the ACWA organizes the "membership of the Amalgamated . . . into local unions and/or joint boards . . . ."³ As required by Article VII, section 4 of the ACWA Constitution, Local 15 is affiliated with the Baltimore Regional Joint Board, a body composed of delegates from the various local unions within the Joint Board's jurisdiction.⁴

On October 23, 1970, plaintiff attended a meeting of Local 15 at the office of the Joint Board in Baltimore, Maryland. The meeting was chaired by the then president of Local 15, Mr. Irving Selisky. Present were approximately 100 members of Local 15 together with several employees of the Joint Board, among them Romeo Esposito and Sam Nocella, who were not members of Local 15. At the time there was considerable friction between Local 15 on the one hand, and Mr. Nocella and the Joint Board on the other hand relating to the selection of a Business Agent for Local 15 and whether the Business Agent should be elected by Local 15 or appointed by Nocella on behalf of the Joint Board.⁵ During the course of the meeting, plaintiff was recognized by Selisky several times to speak. When recognized by the chairman, plaintiff referred to Nocella as "that man," accusing him of allowing work in a union shop to be sent out to be performed in a non-union shop and of other conduct not calculated to endear an offending union executive to a union member. For the purposes of this opinion, it is not necessary to specify further the proceedings of the meeting except to say that Nocella understandably became angry and the meeting did not accomplish the rapprochement between Local 15 and the Joint Board for which Nocella had hoped.

On October 24, 1970, Romeo Esposito filed written charges against plaintiff. The charges were that on Friday, October 23, 1970, "at a regular meeting of Local 15, ACWA, Burt Eisman acted with conduct unbecoming a member of the union and with conduct detrimental to the interests of the Amalgamated Clothing Workers of America." The charges were served on plaintiff together with a summons requesting him to appear at a special meeting of the Board of Directors of the Joint Board⁶ at the Joint Board's office in Baltimore, Maryland on November 14, 1970, at 11 a.m., to answer the charges.

Plaintiff was present at the Joint Board's office on November 14, 1970, at 11 a.m., and the Board of Directors was aware of his presence. With plaintiff at the union office was one Joseph Lanci, a member of Local 15, who was prepared to testify in plaintiff's behalf. After waiting for 10 to 15 minutes to be called before the Board of Directors, plaintiff and Mr. Lanci left the union hall. Subsequent to plaintiff's departure, the Board of Directors held the disciplinary hearing. At the hearing, Romeo Esposito, the charging party, presented his case against the plaintiff which consisted of testimony concerning (1) plaintiff's alleged participation in a demonstration outside of union headquarters on June 2, 1970; (2) plaintiff's alleged attack on Ben Ronis, a business agent employed by the Joint Board; (3) plaintiff's alleged distribution in the summer of 1970 of leaflets which made unfounded charges against Sam Nocella; and (4) plaintiff's alleged behavior at a meeting of Local 15 held on October 23, 1970.

The Board of Directors voted at the conclusion of Mr. Esposito's case to recommend the expulsion of plaintiff from ACWA.⁷ At its next regular meeting on November 21, 1970, the Joint Board voted to adopt the Board of Director's recommendation and to expel plaintiff from the ACWA.

Within the 30-day period provided by Article XII of the ACWA Constitution, on December 14, 1970, plaintiff appealed the Joint Board's decision to the Executive Board of the ACWA. Plaintiff's appeal was not scheduled to be heard by the ACWA until June 9, 1971. During the interim between the date of the Joint Board's decision and the date on which plaintiff's appeal was scheduled to be heard by the ACWA, plaintiff filed the present suit on March 22, 1971.

Defendant's first contention with respect to the above-stated facts is that plaintiff has failed to exhaust his intra-union remedies as required by section 101(a)(4), 29 U.S.C.A. § 411(a) (4), and that, as a result, this court lacks jurisdiction over the subject matter of the complaint. In support of this contention, defendants argue that plaintiff refused to appear at the November 14, 1970 disciplinary hearing and, further, that plaintiff filed the present suit before his appeal to the Executive Board of the ACWA had been decided. This court has previously ruled in a memorandum opinion dated March 20, 1972 that plaintiff need not have delayed the filing of his suit merely because of ACWA's failure to rule upon plaintiff's internal union appeal within a four-month period. See Parks v. International Brotherhood of Electrical Workers, 314 F.2d 886, 925 (4th Cir.1963). The remaining prong of defendants' contention with respect to plaintiff's alleged failure to appear at the November 14, 1970 disciplinary hearing can be decided without determining whether plaintiff was justified in leaving the Joint Board's office prior to the hearing.

It has been held that exhaustion of intra-union remedies is not required where the disciplinary action taken by a labor union is void. Simmons v. Avisco, Local 713, 350 F.2d 1012, 1016 (4th Cir.1965);⁸ Libutti v. Di Brizzi, 337 F.2d 216, 219 (2d Cir.1964), aff'd on reh. 343 F.2d 460 (2d Cir.1965); Detroy v. American Guild of Variety Artists, 286 F.2d 75, 78-79 (2d Cir.1961). As recognized by the Fourth and Second Circuits in the above cases, the concept of voidness applies to any situation in which "conceded or easily determined facts show a serious violation of the plaintiff's rights"⁹ such as to amount to a denial of fundamental fairness. Thus, the question of whether plaintiff has exhausted his available intra-union remedies is part and parcel of the fundamental issue of liability in this case, that is, whether the plaintiff was expelled from the ACWA without the benefit of due process as guaranteed by section 101(a)(5), 29 U.S.C.A. § 411(a)(5).

In this regard, plaintiff claims that he was not served with "written specific charges." Plaintiff does not dispute that he received a written statement dated October 24, 1970, which charged him with conduct unbecoming a member at a meeting of Local 15 on October 23, 1970. Nevertheless, it is equally undisputed that plaintiff was expelled from the ACWA for additional reasons which were not set forth in the written statement of charges received by plaintiff. The minutes of the November 14, 1970 Board of Directors meeting Defendants' Exhibits 1 and 2 clearly establish that plaintiff was tried for participating in a demonstration in front of the union hall on June 2, 1970; attacking a business agent employed by the Joint Board; distributing allegedly libelous leaflets in the summer of 1970; and behaving improperly at the October 23, 1970 meeting of Local 15. Julia Yocum, a member of the Board of Directors of the Joint Board who was present at the November 14, 1970 meeting, testified that the expulsion of plaintiff was based upon all of the actions of the plaintiff including some...