De Mott v. Amalgamated Meat Cutters and Butcher Workmen of North America

• Decision Date: 21 January 1958
• Citation: 157 Cal.App.2d 13,320 P.2d 50
• Court: California Court of Appeals Court of Appeals
• Parties: , 41 L.R.R.M. (BNA) 2561, 34 Lab.Cas. P 71,280 Herbert V. DE MOTT, Plaintiff and Appellant, v. AMALGAMATED MEAT CUTTERS AND BUTCHER WORKMEN OF NORTH AMERICA, etc., et al., Defendants and Respondents. Civ. 22213, 22220.

Page 50

320 P.2d 50

157 Cal.App.2d 13, 41 L.R.R.M. (BNA) 2561,

34 Lab.Cas. P 71,280

Herbert V. DE MOTT, Plaintiff and Appellant, v. AMALGAMATED MEAT CUTTERS AND BUTCHER WORKMEN OF NORTH AMERICA, etc., et al., Defendants and Respondents.

Civ. 22213, 22220.

District Court of Appeal, Second District, Division 3, California.

Jan 21, 1958.

Rehearing Denied Feb. 17, 1958.

Hearing Denied March 19, 1958.

David S. Smith, Los Angeles, for appellant.

Aaron Sapiro and Charles, M. Arak, Los Angeles, for respondents.

SHINN, Presiding Justice.

Herbert V. DeMott appeals from adverse judgments in two actions, tried to the court, in which he sought reinstatement as a member in good standing of a labor union, restoration to office as secretary-treasurer of a union local, damages for wrongful expulsion from membership and office, and damages for slander. The actions were brought against Amalgamated Meat Cutters and Butcher Workmen of North America and four of its agents and representatives, to-wit, Earl W. Jimerson, the International President, Patrick E. Gorman, the International Secretary, Max J. Osslo, a member of the union's International Executive Board, and Harold Woodard. The actions were tried concurrently and the appeals are presented on a single set of briefs.

Plaintiff became a member of the union in 1935 and since 1937 he had been an officer of union local No. 551, whose headquarters were in Wilmington, California. On October 24, 1955 DeMott was a member in good standing of the union and was secretary-treasurer of the local, an elective and salaried position. At that time local No. 551 was involved in a jurisdictional dispute between the Butchers Union and the Retail Clerks Union. It is sufficient to say at this point that DeMott was taking an active part in the dispute. There was considerable dissension within the local and at a meeting of the Executive Board of the local which was held on October 20th. DeMott was rebuked by other members of the board for suggesting that the local sever its connection with the butchers union and affiliate with the retail clerks.

On October 24th, DeMott sent a letter and a telegram to Gorman, who was International Secretary of the union, informing him that as of that date local No. 551 had affiliated with local No. 563 (A.M.C. and B.W.), whose headquarters were in Huntington Park. That same day, Osslo, who was a member of the International Executive Board, received a telegram from Jimerson, the Union President; the wire stated that because of actions by DeMott which had 'seriously undermined the stability of the membership' Jimerson was placing local No. 551 in receivership and appointing Osslo as receiver. October 25th, Jimerson informed DeMott by telegraph of Osslo's appointment. The preceding evening, Osslo and wired DeMott, informing him that pursuant to authority delegated by Jimerson and Gorman, he (Osslo) was suspending DeMott from membership in the local. DeMott was instructed to hand over to Woodard, Osslo's deputy receiver, all the books, records, property and other assets of the local, including a Chrysler automobile, gasoline credit cards, keys to safety deposit boxes and $1,000 in cash 'which you took last Friday morning October 21st.' October 25th, Woodard went to the headquarters of the local and took possession from DeMott of the items mentioned in Osslo's instructions.

In appointing Osslo as receiver, Jimerson purported to exercise emergency powers granted him by Article II, section 3 of the Constitution of the International Union. That section provided, in material part, that the president 'shall assume charge of the affairs of any Local Union at any time when trouble of an internal nature threatens the effectiveness of the Local. He shall personally, or by deputy, administer the Local's affairs until he is satisfied that peace and harmony prevail.' It also authorized Jimerson or his deputy to suspend the power of local union officers and to remove them from office upon evidence of misconduct, provided, however, that 'no officer may be removed from office unless and until any such officer is, after proper and informative formal notice, given the opportunity of a full hearing in a manner and at such time and place as may be prescribed by the International Executive Board.'

November 3rd, DeMott filed an action for injunctive relief and damages, in which he sought orders restoring him to membership in the union and to office in the local; he also sought from defendants substantial damages on account of their allegedly wrongful acts in suspending him from membership and office, as well as an award of punitive damages. By a second cause of action, DeMott sought to recover damages for slander. November 4th, DeMott filed a petition for writ of mandamus, likewise seeking reinstatement to membership and office. He concedes in his brief that except for the cause of action for slander set forth in the action for injunctive relief, the two lawsuits are substantially similar.

On November 16th, after the present actions had been instituted, two sets of formal charges were brought against DeMott by members of the local. In the first set of charges, which was addressed to the local, it was alleged that for more than 10 days prior to October 25, 1955, DeMott was engaged in malicious efforts to cause disruption and discontent in the local and was attempting to cause the officers and members of the local to affiliate with the retail clerks, in contravention of Article III, section 12 of the Constitution of Local No. 551; the penalty provided by that section is a fine of expulsion or both. In the second set of charges, which was addressed to the local and also to the president and the Executive Board of the International, it was alleged that DeMott had committed serious misconduct while in office, to-wit: On October 14, 1955 he caused a membership book to be issued to Charles Brenner without prior approval by the members of the local; he improperly paid $100 to Brenner for alleged 'Organizational activities'; he instructed Brenner on October 20th to tell Woodard to leave town; he persuaded the Executive Board of the local to allot him $1,000 on October 20th for alleged 'organizational expenses', whereas DeMott intended to use the money to hire a strong-arm men to overawe the Executive Board in furtherance of his disruptive policies; on October 21st he removed books and records belonging to the local from the local headquarters and did not return them until October 24th, after being warned of his misconduct. DeMott's accusers requested that the charges be presented to the membership at the next meeting of the local and that Jimerson be asked to order DeMott's salary withheld.

The combined charges against DeMott were presented at a general meeting of the local held on December 6th, at which time a trial committee consisting of seven members was elected by secret ballot. Trial was set for December 19th at the local headquarters in Wilmington. Pursuant to a resolution of the members present, a copy of the charges was mailed to DeMott; he was also informed that he had the right to present evidence on his behalf and to be represented by counsel at the trial. DeMott attended the trial in the company of his attorney, Mr. Smith. After the chairman of the trial committee read the charges, Smith stated that he was appearing specially in order to challenge the membership of the committee; the challenge was rejected. Various witnesses were sworn and gave testimony against DeMott, but Smith declined to cross-examine them, reiterating his statement that he was making a special appearance. DeMott and his attorney then left, whereupon the committee prepared its recommendations and report. DeMott was found guilty of issuing a membership book to Brenner without prior approval of the members of the local and of attempting to cause disruption of the local by attempts to turn the local over to the Retail Clerks Union. The committee recommended that he be fined $5,000 and expelled from the local.

The report and recommendations of the trial committee together with extracts from the testimony at the trial were read at a general meeting of the local on January 3, 1956. The members present voted 103 to 22 by secret ballot to accept the committee's recommendations.

January 9th, DeMott was advised by letter of the action of the membership and informed that no steps would be taken with respect to the fine until he had a reasonable opportunity to appeal to the International Executive Board. Two days later, DeMott sent to the International Executive Board in Chicago, his notice of appeal from the trial committee's recommendations and the vote of the membership. February 2nd, DeMott also filed his notice of appeal from the 'removal, suspension, explusion and ouster' which occurred on October 25, 1955. By telegrams dated March 2nd, 21st and 22nd, Jimerson informed DeMott that the hearing upon both appeals would be held June 6, 1956 at a regular meeting of the International Executive Board in Cincinnati; that DeMott would be afforded a full opportunity to appear and participate in the hearing in person and with counsel, and that neither Gorman, Jimerson nor Osslo would sit on the board or participate in its decision. The record does not disclose whether the hearing was actually held, for the reason that the present actions were tried during March, April and May, 1956.

We now turn to a consideration of the pleadings. The action for injunctive relief and damages was tried on DeMott's first amended complaint and the answer thereto. In his first amended complaint, DeMott alleged that he was suspended, removed and expelled from his office and from membership in the local by defendants on October 25, 1955; that he was not guilty of any infringement of the Constitution or By-Laws of the union; that no written charges were brought against him; that no hearing was held upon the charges; that the acts of...