Madden v. Atkins

• Decision Date: 01 May 1958
• Docket Number: No. 88,88
• Citation: 4 N.Y.2d 283,174 N.Y.S.2d 633,151 N.E.2d 73
• Parties: , 151 N.E.2d 73, 42 L.R.R.M. (BNA) 2161, 74 A.L.R.2d 772, 34 Lab.Cas. P 71,491 Bernard C. MADDEN et al., Respondents-Appellants, v. Charles T. ATKINS, Individually and as President of New York Associationof Masters and Mates of the National Organization Masters, Mates and Pilots of America, Inc., and as President of National Organization Masters, Mates and Pilots of America, Inc., et al., Appellants-Respondents.
• Court: New York Court of Appeals Court of Appeals

Page 633

174 N.Y.S.2d 633

4 N.Y.2d 283, 151 N.E.2d 73, 42

L.R.R.M. (BNA) 2161,

74 A.L.R.2d 772, 34 Lab.Cas. P 71,491

Bernard C. MADDEN et al., Respondents-Appellants, v. Charles T. ATKINS, Individually and as President of New York Association No. 88 of Masters and Mates of the National Organization Masters, Mates and Pilots of America, Inc., and as President of National Organization Masters, Mates and Pilots of America, Inc., et al., Appellants-Respondents.

Court of Appeals of New York.

May 1, 1958.

John R. Harold, New York City, for respondents-appellants.

Francis X. Nestor, New York City, for appellants-respondents.

FULD, Judge.

Whether the plaintiffs wee wrongfully expelled from the union of which they were members and, if so, whether they may recover damages for such expulsion from the union, an unincorporated association, are questions presented by this appeal.

The plaintiffs are licensed deck officers and, until 1953, all of them, except Dipietrantonio, were members of Local 88 of Masters, Mates and Pilots of America, Inc., a national union operating in all major ports of the United States and Canada. Plaintiff Dipietrantonio is a member of Local 14 in Baltimore, but frequently shipped out of New York through Local 88. In 1953, he was deprived of this privilege, and the other plaintiffs were expelled from Local 88. In the present action brought against the national union, its affiliated local and the latter's two principal officers, the plaintiffs seek both the restoration of their union privileges and money damages for wages lost.

The controversy, from which this action stemmed, followed a bitterly contested election in 1952. Plaintiffs Madden, Liddy and Polachek ran for union office on a slate opposing the individual defendants, who were candidates for re-election, and plaintiff Sohnen was a member of the committee designated to supervise the election. When defendant Atkins and other officers frustrated attempts on the part of the election committee to have the local membership approve certain procedural safeguards, Sohnen and the committee's chairman, comprising a majority of that body, brought suit to prevent the election from being held. On the day set for the election, the court had not yet acted and the regularly elected ballot committee refused to proceed with the election. Thereupon, the executive committee, consisting of the incumbent officers, 'appointed' a new committee which, in the absence of the opposition candidates, counted the ballots and declared the incumbents re-elected by large majorities.

Thereafter, in February of 1953, a number of defeated candidates, assertedly 'still desirous of taking an active and effective part in (union) affairs,' along with others, formed the 'American Mariners Association of the National Organization of Masters, Mates & Pilots of America' (hereinafter referred to as AMA), to work, as their initial leaflet put in, 'within the Union * * * for better trade unionism in Local 88.' That leaflet, signed by Liddy and Madden 'For the Founding Committee,' read, in pertinent part, as follows:

'In America we have a two party system Republican and Democrat and our country prospers and freedom is protected. Is not such a system desirable and possible in Local 88?

'We believe that two parties within the Union, working for and in the interest of the Union and the membership, will be a good and healthy thing for our Local. There will be a free exchange of ideas, and all persons will be free to express themselves and attempt, within the framework of the Union, to guide the welfare of the Union in a beneficial way.

'For this purpose we have formed a group called the American Mariners Association of the National Organization of Masters, Mates and Pilots of America. * * *

'Such an Association cannot and will not be permitted to be a dual Union. It must never speak in the name of the Union, seek to handle grievances or Union jobs, deal with the Employer, or propose or seek to cause the membership to ever disaffiliate from Local 88.

'But within the Union it can be a force for good for better trade unionism in Local 88.'

On February 25, 1953, some two weeks after the appearance of this paper, Atkins preferred charges against Liddy and Madden, accusing them of advocating and creating a 'dual union,' that is, AMA; of advertising said dual union in the 'Labor Leader,' a publication of the Association of Catholic Trade Unionists; of attending, and inviting other members of the local to attend, 'unauthorized meetings'; permitting nonunion members to be present at such meetings; and of distributing 'smear sheets' during the 1952 election campaign. At later meetings, in March and May, 1953, charges were preferred against Polachek, Sohnen and Friedman, accusing them of violating their obligations by joining the dual union and in distributing its literature. Polachek was further accused of swearing falsely in an affidavit in the action brought against the union, of sending out a statement advocating a dues strike and mass withdrawal from the union and of urging union members to join AMA. Sohnen was also charged with unjustly commencing the pre-election lawsuit; with co-operating with the opposition slate; with falsely accusing the local's officials of fraud; and with attempting 'to create dissension' by declaring that such officials were losing job opportunities for the members.

At each meeting at which charges were preferred, the union members present elected a trial committee and in each instance the committee found the plaintiffs so charged guilty and voted that they be expelled from the union. The preferring of charges, the election of the trial committees by the membership and the subsequent proceedings were all in accordance with the constitutional provisions of the local. The reports of the trial committees were in each case rendered to a 'regular meeting' of the local's membership and, again in line with constitutional provision, the membrship in each instance affirmatively approved and adopted the trial committees' determination.

As noted above, plaintiff Dipietrantonio was not a member of Local 88 and the action taken against him was somewhat different. In March of 1953, Atkins charged Dipietrantonio with stating that he 'didn't like' him (Atkins) and with 'telling lies' about the local, took up his shipping card and announced that he could not in the future work in New York. When Dipietrantonio asked for a trial, Atkins' response was, 'I am the president of this local, I am National president, and I do what I like.'

Following the action taken by the membership, the plaintiffs (except for Dipietrantonio) separately appealed to the Local Executive Board consisting of Atkins who disqualified himself and six other officers of the local. In June of 1953, that body, relying exclusively on the charge of dual unionism, upheld the conviction and expulsion of Madden, Liddy and Friedman, who then appealed to the National Executive Committee of the union. The national organization never acted on their appeals, despite requests for an early hearing and an opportunity to work pending determination of the appeal. And the Local Executive Board did not act on the appeals of Sohnen and Polachek, also taken in June, until November 9, 1953, more than a month after the plaintiffs commenced this suit seeking reinstatement.

Without union affiliation, or in Dipietrantonio's case a shipping card, the plaintiffs were unable to obtain employment as officers in the merchant marine and, from the time of their expulsion in 1953, worked as seamen or in odd jobs unrelated to their supervisory status or shipboard training.

After a lengthy trial, the court at Special Term, noting first, that the plaintiffs had not exhausted the remedies provided by the union's constitution and by-laws and, second, that 'some evidence' had been presented to support the determination made by the trial committees, dismissed the complaint. The Appellate Division modified the resulting judgment; concluding that the plaintiffs had been wrongfully expelled, it directed their reinstatement, but held them not entitled to damages. From that determination, both sides appealed, the defendants from so much of the judgment as directed reinstatement, the plaintiffs from that portion which denied damages to them.

We may dispose of the defendants' initial contention, that the plaintiffs failed to exhaust their remedies within the framework of the union, without extended discussion. It is, of course, true that, where timely and adequate relief is provided, an aggrieved member must first exhaust that organization's remedies before seeking redress from a court. See Havens v. Dodge, 250 N.Y. 617, 166 N.E. 346; Rubens v. Weber, 237 App.Div. 15, 18-19, 260 N.Y.S. 701, 704-705. But, it is equally true, 'the law does not require a man who has been left without means of subsistence through the wrongful action of the union to make continued futile efforts beyond a reasonable time within which to obtain relief.' Browne v. Hibbets, 290 N.Y. 459, 466, 49 N.E.2d 713, 716, 717; see, also, Polin v. Kaplan, 257 N.Y. 277, 282, 177 N.E. 833, 834; People ex rel. Deverell v. Musical Mut. Protective Union, 118 N.Y. 101, 108, 23 N.E. 129, 130. In other words, as this court explicitly held in Browne v. Hibbets, 290 N.Y. 459, 466, 49 N.E.2d 713, 716, 717, supra, 'The obligation imposed upon a union member is no more than to use all reasonable means to make use of the remedies available to him within the union organization before resorting to the courts' and the failure of a union tribunal 'to consider within a reasonable time the appeal * * * permits an application to the courts by a member who has been expelled.'

Here, the Local Executive Board, despite pleas of hardship, did not act on the appeals of Sohnen and Polachek until after suit had been instituted, some six months following their expulsion, and the National Executive...