McDermott v. Jamula

• Decision Date: 09 December 1958
• Citation: 338 Mass. 236,154 N.E.2d 595
• Parties: Francis L. McDERMOTT v. Joseph J. JAMULA and others.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 595

154 N.E.2d 595

338 Mass. 236

Francis L. McDERMOTT v. Joseph J. JAMULA and others.

Supreme Judicial Court of Massachusetts, Berkshire.

Argued Sept. 25, 1958.

Decided Dec. 9, 1958.

W. Stanley Cooke, Pittsfield, for plaintiff.

Clement A. Ferris and L. George Reder, Pittsfield, for defendants.

Before WILKINS, C. J., and SPALDING, WILLIAMS, COUNIHAN and CUTTER, JJ.

CUTTER, Justice.

This is a bill in equity by a licensed electrician against several defendants as representative of the entire membership of Local 284 of the International Brotherhood of Electrical Workers (hereinafter called Local 284) and of the brotherhood itself (hereinafter called I. B. E. W.) alleging unjust suspension from both Local 284 and I. B. E. W. and seeking (a) to be treated as if he had not been suspended, and (b) damages for the alleged wrongful suspension. A demurrer was overruled and the case was referred to a master whose report states the following relevant facts.

The plaintiff prior to March 1, 1953, had been a member in good standing of Local 284 and of I. B. E. W. He did not pay and of his monthly membership dues and assessments, amounting to $9.10 per month, for March, April, or May, 1953, until Monday, June 1, 1953, when early in the morning he purchased a money order for $9.10 payable to 'I. B. E. W., Local 284,' and mailed it to the financial secretary. The financial secretary received the money order on June 2, 1953, and returned it to the plaintiff with a letter reading in part: 'I am returning your money order of $9.10, postmarked June 1, 1953. Being three months in arrears, your money order was postmarked one day after the deadline which was May 31, 1953. This is to notify you that you now stand suspended from all benefits of this local union, and can only be reinstated by the local union, providing you comply with the laws and rules of the constitution in article 24, section 1-6 inclusive.'

The pertinent provisions of the constitution (hereinafter sometimes called the constitution) of I. B. E. W. and of the by-laws of Local 284, as found by the master, are set out in the margin. ¹ The plaintiff has not at any time applied for reinstatement in accordance with art. XXIV, § 1, but, on the present record, we can consider the case as if the plaintiff had pursued all other appropriate remedies within the union. ²

It had 'been the custom of Local 284 for at least three years prior to 1953 to permit members to pay dues at any time on or prior to the last day of the third month from the time when the dues were first payable. * * * [I]f the * * * [plaintiff] had paid his dues * * * on Sunday, May 31st, the dues payment would have been accepted and the * * * [plaintiff] would not have been suspended * * *. [W]ithin the local this custom had become accepted practice * * * known to and followed by local members. It was also the * * * custom * * * to accept the postmark date * * * as the date on which payment was made.'

The plaintiff was not regarded as a good union man by the financial secretary and the business manager of Local 284, who were hostile to him. In sending, however, the letter returning the plaintiff's payment received by them on June 2, they were acting in accordance with the common practice of the local. The plaintiff had been sick for a year prior to his suspension. His record of dues payments had been poor and, for some time, he had been paying dues on the last, or nearly the last, day on which the union, by its custom, was willing to receive them.

The master also found that, in the course of the appeals taken by the plaintiff, there was correspondence between the plaintiff and I. B. E. W. This correspondence was attached to his report. On August 19, 1953, the I. B. E. W. president replied to a letter from the plaintiff 'concerning the arrearage in your dues which occurred because of your failure to make payment within the three months ending May 31, 1953' (emphasis supplied), saying that 'there is no constitutional authority * * * which can require dues receipts to be written after the three month period has expired.' On December 24, 1953, the secretary of the I. B. E. W. executive council notified the plaintiff of the council's action on his appeal referring to the plaintiff's having gone 'one day beyond the deadline in paying his dues.' ³ The master, however, also expressly found (a) that no 'evidence was introduced * * * whether * * * the International was aware of the practice in the local union of allowing an extra thirty days for payment of dues, except as it may have become aware' of the practice because of its correspondence with the plaintiff and from the records forwarded to I. B. E. W. by Local 284 which 'were complete enough so that, if analyzed, they would have revealed the local union practice,' and (b) 'that there was no evidence that I. B. E. W. had actual knowledge of the custom of the local to accept the postmark date as the payment date * * * unless * * * the knowledge of the local union financial secretary may be imputed to * * * I. B. E. W.'

The plaintiff's contention that the payment on June 1 of his dues for March was seasonable rested on the fact that May 31 was a Sunday and relied upon the operation of G.L. c. 4, § 9, which provides that when 'the last day for the performance of any act, including the making of any payment * * * falls on Sunday * * * the act may * * * be performed on the next * * * business day.' The master, however, construed the provisions of the union's constitution and local by-laws as making May 1, and not May 31, the last date on which a payment of the March dues would avoid a suspension. The master concluded that the plaintiff 'was properly suspended * * * for nonpayment of dues and that * * * [he] is not entitled to reinstatement since he failed to comply with the requirements of the constitution and by-laws' in that respect.

As an alternative finding, in case he was wrong in his construction of the I. B. E. W. constitution, and Sunday, May 31, was in fact the last day for payment without suspension, the master found that the payment made by the plaintiff was 'proper and on time,' and 'that the suspension * * * was improper.' The master also found that 'the suspension of the * * * [plaintiff] made it extremely difficult, if not impossible, for * * * [him] to obtain wor as an electrician.' The master's report purports to set forth on various bases the amount of damages to which the plaintiff would be entitled if he was entitled to damages at all.

The master's report was confirmed by interlocutory decree. A final decree was entered dismissing the bill. The plaintiff has appealed from each decree.

1. The defendants have filed a motion to dismiss the appeals because they contend that the order for preparation of the papers on the appeals was not given seasonably. The order was in fact given on May 19, 1958, in advance of the date (May 21, 1958) when the clerk notified the judge and the parties that the time for filing designations had expired, and, of course, well before the expiration of thirty days from such notice or any earlier approval of the record as designated. See Rule 2(F), as amended, of the Rules for the Regulation of Practice before the Full Court (1952), 328 Mass. 694, 332 Mass. 791. See also State Realty Co. of Boston, Inc. v. MacNeil Bros. Co., 334 Mass. 294, 297, 135 N.E.2d 291. The order was seasonable and the fact that it was given before the date when it need be given does not render it invalid. See Sherrer v. Sherrer, 320 Mass. 351, 354, 69 N.E.2d 801. See also Tanzilli v. Casassa, 324 Mass. 113, 115, 85 N.E.2d 220. The motion to dismiss the appeal must be denied.

2. International Ass'n of Machinists v. Gonzales, 356 U.S. 617, 621-623, 78 S.Ct. 923, 2 L.Ed.2d 1018, establishes that this suit in equity may be maintained for restoration of the plaintiff's membership and for damages, notwithstanding the Labor Management Relations Act of 1947, as amended, 29 U.S.C. (1952) §§ 141-188 [29 U.S.C.A. §§ 141-188]. The basis of seeking relief in the present case is of the same character as in the Gonzales case (see 356 U.S. at pages 621-622, 78 S.Ct. at page 926), viz. alleged 'breach of a contract governing the relations between * * * [the plaintiff] and his unions.' The principal question for our decision is whether the plaintiff tendered his March, 1953, dues seasonably under the constitution and by-laws.

3. As permitted by art. XX, § 1, of the constitution, art. X, § 4, of the by-laws of Local 284 provides that dues shall be payable to Local 284 monthly in advance (see footnote 1, supra). Article XXIII, § 3, of the constitution provides for suspension of a member 'indebted * * * for three months' dues.' Article XXIV, § 1, however, refers to the rights to reinstatement possessed by anyone 'suspended for being in arrears for three months.'

The master interpreted these provisions in the aggregate as requiring that dues be paid 'in advance, that on failure to make * * * payment in advance the * * * member would 'stand suspended' as soon as he was indebted for three months' dues,' and that, because dues were payable in advance 'on, for example, March 1st, a member was indebted for one month's dues, on April 1st for two months' dues, and on May 1st for three months' dues.'

If art. XXIII, § 3, stood alone, it would seem plain that the master was correct and that a debt would arise for dues payable in advance not later than midnight of the first day of the period for which the payment was made, and that at midnight on May 1, 1953, this plaintiff became indebted for three month's dues. See Smith v. Shepard, 15 Pick. 147, 150 (rent payable quarterly in advance payable at any time during first day of quarter); Highland Trust Co. v. Slotnick, 289 Mass. 119, 121, 193 N.E. 831 (rent). See also Rowe v. Williams, 97 Mass. 163, 165.

The plaintiff argues, however, that a person would not be 'in arrears for three months' under art....