Giordano v. Radio Corporation of America, 10181.
| Decision Date | 12 July 1950 |
| Docket Number | No. 10181.,10181. |
| Citation | 183 F.2d 558 |
| Parties | GIORDANO et al. v. RADIO CORPORATION OF AMERICA et al. |
| Court | U.S. Court of Appeals — Third Circuit |
Louis H. Wilderman, Philadelphia, Pa. (Joseph Liebman, Camden, N. J., on the brief), for appellant.
M. H. Goldstein, Philadelphia, Pa. (Anthony C. Mitchell, Camden, N. J., on the brief), for appellee.
F. Morse Archer, Jr., Camden, N. J., was present on behalf of Radio Corp. of America, but did not participate in oral argument.
Before MARIS, KALODNER and HASTIE, Circuit Judges.
On January 17, 1950 Alexander Giordano, a citizen of Pennsylvania, brought an action in the United States District Court for the District of New Jersey, individually and as treasurer and representative of Local Union 103 of the United Electrical, Radio & Machine Workers of America, against the Radio Corporation of America, a Delaware corporation, employer of the members of the Local, and John Leto and Earl Fox, citizens of New Jersey, the president and secretary of the Local, respectively, individually and as representatives of the officers, members of the Trial Board, and other members of Local 103 acting in concert with them. The plaintiff alleged that he and fifteen other members and officers of the Local were about to be expelled and their names withdrawn from the membership list as a result of charges brought against them of having engaged in raiding and secession activities against the Union on behalf of a rival organization. The plaintiff asked the court to enjoin the defendants from proceeding further under the alleged charges and the purported decision of expulsion. A motion to dismiss the complaint was made by the defendants and denied by the court, which thereupon granted the preliminary injunction from which the present appeal was taken.
The defendants contend here that the court should not have granted the injunction and that in any event it was without jurisdiction to entertain the action. The question of jurisdiction having been raised we proceed to consider it first. The suit was brought under the diversity of citizenship jurisdiction of the district court. There is a diversity of citizenship between Giordano, the individual who brought the suit, and the three named defendants. The matter in controversy is alleged in the complaint to exceed $3000.00. Whether this amount is actually involved is the decisive point as to jurisdiction.
The theory of plaintiff's complaint is that it was brought by him as representative of a class, the members of Local 103, to prevent them from being deprived of their right to the services and experience as officers and members of himself and the fifteen other members who were about to be expelled from membership and from being deprived of their membership dues. At the hearing the plaintiff somewhat modified his theory by asserting that he represented a class consisting of all members of Local 103 with the exception of defendants Leto and Fox and those members of the Local acting in concert with them. The court in its findings of fact adopted the theory of the plaintiff, both as originally advanced and as modified, and found moreover that the plaintiff would fairly insure the adequate representation of all members of the class which he sought to represent.
It is true, as the plaintiff argues, that the membership of an unincorporated labor union may constitute a class on whose behalf representatives may bring a true class suit to vindicate the common rights of the members as such. But Federal Civil Procedure Rule 23(a), 28 U.S.C.A., provides that the representatives of the class who bring the suit must be such "as will fairly insure the adequate representation of all." Here the affidavits upon which the court acted make it perfectly clear that the membership of Local 103 is sharply divided on the very question involved in this case, the expulsion of the plaintiff and his associates. Indeed a majority of the members who voted on the question at a membership meeting held on January 11, 1950, voted to sustain their expulsion.1 With a class thus sharply divided in opinion it would be absurd to say that the leader of one faction in the internecine struggle could adequately represent the whole membership2 The finding of the district court on this point must be set aside as clearly erroneous.
It follows that the suit cannot be sustained as one brought on behalf of the whole membership of Local 103 as a class. Nor can it be sustained as brought on behalf of all members of Local 103 with the exception of defendants Leto and Fox and those members acting in concert with them. This is but another way of describing those members of the Local...
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