Karath v. Gneralis

• Court: D.C. Court of Appeals
• Writing for the Court: Reilly
• Citation: Karath v. Gneralis, 277 A.2d 650 (D.C. 1971)
• Decision Date: 28 May 1971
• Docket Number: No. 5625.,5625.
• Parties: James KARATH, Appellant, v. Arthur GENERALIS, Appellee.

Page 650

277 A.2d 650

James KARATH, Appellant, v. Arthur GENERALIS, Appellee.

No. 5625.

District of Columbia Court of Appeals.

Argued April 19, 1971.

Decided May 28, 1971.

Louis Ginberg, Washington, D. C., with whom Samuel Levine, Washington, D. C., was on the brief, for appellant.

Arthur Generalis, pro se.

Before KELLY, FICKLING and REILLY, Associate Judges.

REILLY, Associate Judge:

Appellant is the business manager and secretary-treasurer of Waiters Union 781, a local of the Hotel and Restaurant Employees and Bartenders International Union, which has a collective bargaining agreement (or agreements) with a number of Washington hotels. A judgment in the amount of $44.90 was rendered against him in the Small Claims Branch in an action brought by a member of the local, based on testimony of plaintiff-appellee that he would have earned this amount had not appellant in his capacity as union business agent deprived him of a job at the Mayflower Hotel as an extra banquet waiter. At the trial, appellant attempted unsuccessfully to justify his action on the ground that under the union rules relating to the dispatching of extra waiters, he had properly penalized the claimant "one button" for engaging in a disturbance. This penalty meant that the latter was ineligible to work the next day at the scheduled function.

Neither party was represented by counsel at the trial and the judge who heard the case made no findings or statement of reasons for the judgment entered. Within a few days, however, an application for allowance of appeal was drawn and filed by experienced labor counsel for the union business agent.

A losing party in a small claims action is not entitled to appeal as a matter of right, D.C.Code 1967, § 11-721(c) (Supp. IV, 1971). This court usually grants appeals in such cases, however, where appellant states grounds showing apparent error or a question of law, which has not been but should be decided by this court.¹

In this instance, appellant advanced several reasons for appellate review, two of which presented substantial legal questions: (1) that the claim having been considered and rejected not only by the union, but by the National Labor Relations Board,

Attached to the appeal papers as exhibits were, inter alia, (a) findings of the trial committee of the local union, dated February 28, 1970, upholding the penalty imposed; (b) the union rules on the operation of the "extra board"; (c) a letter from the president of the international union, dated January 23, 1970, advising claimant to have his grievance resolved on the local level, referring him to the union constitution; and (d) a letter from a regional director of the National Labor Relations Board, dated February 27, 1970, telling claimant that he was refusing to issue a complaint with respect to his charges against the union, and notifying him of his right to appeal such refusal to the General Counsel.

Thus when the application for allowance of appeal was considered — the trial record not having been certified — this court might well have inferred that serious questions of federal preemption or of exhaustion of internal remedies under national labor law were present. Unfortunately the record, including the transcript of testimony, now discloses that such questions were not raised in the proceedings below, and that none of the documents annexed to the appeal papers, with the exception of the extra board rules, was introduced at the trial, although available to appellant at the time.

Despite these deficiencies in the record, appellant now urges that this court should view the case as not merely a tort action against an individual, but rather as a dispute between an employee and a union, drawing into issue the validity of action based on the regulations of the labor organization and, so viewed, we should hold that the court below lacked jurisdiction to entertain the action as plaintiff's remedy, if any, was within the exclusive domain of the National Labor Relations Board under Title I of the Labor-Management Relations Act, 29 U.S.C. §§ 144-188 (1947).

In short, appellant seems to be invoking the familiar principle that although not raised in the trial court, lack of jurisdiction can be noticed at any time by an appellate tribunal either on the request of the party or on its own motion. The latest pronouncements of the Supreme Court, however, have made it clear that even if we adopt appellant's view of the underlying nature of the controversy, the trial court was vested with jurisdiction to hear and decide the matter. Compare International Association of Machinists v. Gonzales, 356 U.S. 617, 78 S.Ct. 923, 2 L.Ed.2d 1018 (1958) with Garner v. Teamsters, C. & H. Local Union, 346 U.S. 485, 74 S.Ct. 161, 98 L.Ed. 228 (1953) and Guss v. Utah Labor Relations Board, 353 U.S. 1, 77 S. Ct. 598, 1 L.Ed.2d 601 (1957).

Basic to appellant's position is the premise that the controversy between the parties could have been adjudicated under the National Labor Relations Act. Appellant does not describe the administrative remedy open to appellee, although it does appear that some of the "extra board" rules impinge upon those provisions of the federal statute prohibiting closed shop arrangements and preferential union hiring, particularly the rule limiting the services of the Board to union members in good standing.² Thus it is possible that if a formal complaint³ had issued, the Board might have found both the union and the hotel guilty of unfair labor practices and required the payment of back wages.

But the mere availability of a possible remedy under the National Labor Relations Act does not deprive state courts of jurisdiction to entertain suits against labor organizations brought by union members aggrieved by asserted violations of rights enumerated in a union constitution or bylaws. International Association of Machinists v. Gonzales, 356 U.S. 617, 621, 78 S.Ct. 923, 2 L.Ed.2d 1018 (1958). Prior to the Labor-Management Reporting and Disclosure Act of 1959, 29 U.S.C. § 411 et seq., the protection of union members in their rights as members from arbitrary conduct of unions and union officers had not been undertaken by federal law. See N. L. R. B. v. Allis-Chalmers Manufacturing Co., 388 U.S. 175 at 193-194, 87 S.Ct. 2001, 18 L.Ed.2d 1123 (1967).

Prior to the 1959 enactment, the United States Court of Appeals for this circuit had held that local courts possessed jurisdiction to entertain such actions by union members, Friedman v. International Association of Machinists, 95 U.S.App.D.C. 128, 220 F.2d 808 (1955), but could not remedy the union action complained of unless " * * * inconsistent with fundamental fairness, or * * * reached in violation of...