Sands v. Abelli

• Decision Date: 28 August 1968
• Docket Number: No. 61 Civ. 2110.,61 Civ. 2110.
• Citation: 290 F. Supp. 677
• Parties: Max SANDS, as Administrator of the Estate of Solomon Salzhandler, Deceased, Plaintiff, v. Peter J. ABELLI, as President, etc., and Isadore Webman, individually and as President, etc., Defendants.
• Court: U.S. District Court — Southern District of New York

290 F. Supp. 677

Max SANDS, as Administrator of the Estate of Solomon Salzhandler, Deceased, Plaintiff, v. Peter J. ABELLI, as President, etc., and Isadore Webman, individually and as President, etc., Defendants.

No. 61 Civ. 2110.

United States District Court S. D. New York.

August 28, 1968.

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Burton H. Hall, New York City, for plaintiff.

Henry J. Easton, New York City, for defendants.

CANNELLA, District Judge.

Action pursuant to 29 U.S.C. §§ 411(a) (2), 412 and 529 to recover damages.

The sole issue before this court¹ is the assessment of damages arising out of the acts which form the basis for this suit. It is unnecessary to duplicate the factual presentation upon which the Court of Appeals predicated its decision and this will be avoided except to the extent required for a cogent treatment of the questions of damages as presented by the various claims.

Suffice it to say that Mr. Salzhandler, a member of Local 442, had accused Mr. Webman, the then President of said Local and Business Agent of District Council 9, of improper financial activities. Webman filed charges against the plaintiff with the District Council Trial Board and had Salzhandler stripped of office and suspended from union activities for five years. Salzhandler sued in District Court, and after a trial and dismissal, the Court of Appeals reversed the lower court and directed entry of judgment and assessment of damages. This Court acting non-jury, heard evidence on the question of damages.

Plaintiff claims the following damages as to defendant District Council 9: (1) loss of wages as a painter; (2) compensatory damages arising out of the assault and battery of May 15, 1961; (3) compensatory damages for mental suffering caused by the wrongful disciplinary action; (4) compensatory damages for the stroke and subsequent paralysis; (5) exemplary damages; (6) counsel fees.

In addition, plaintiff asserts a claim against Local 442 for lost wages as financial secretary.

Finally, plaintiff claims compensatory and exemplary damages against Isadore Webman.

The plaintiff, also, urges this Court to consider the existing New York law in this area and to invoke its pendant jurisdiction to grant relief if it is determined that the Labor-Management Reporting and Disclosure Act (Landrum-Griffin Act, hereinafter LMRDA)² does not provide an adequate remedy in all respects.

The threshold question presented is whether by reason of the death of the plaintiff³ and substitution of the Administrator of his estate, the claims asserted abate. This Court determines the issue in the negative. The very direction of the Court of Appeals would appear to preclude a finding otherwise. "We * * * direct entry of judgment for the plaintiff * * *."⁴ The assessment of damages does not for purposes of abatement render the action in a state of pendency at the time of death.

Assuming, arguendo, the pendency of the action at the time of death the case for abatement fails on other grounds. Although there appears to be no case squarely on point under the LMRDA, the better reasoned cases hold that where a federal statute grants a right to an individual, whether it be deemed a personal or property right, to deny the remedy on the theory of abatement would be, "perpetuation of a policy which has now had its day."⁵ Without belaboring the point, the sound approach is clearly in favor of survivorability where, as here, the statute is designed to have a deterrent effect. Were the Court to hold otherwise, the incentive for discipline of a more permanent nature would be manifest.

Turning to the substantive claims, the Court will consider first the plaintiff's claim for loss of salary as Financial Secretary of Local 442. The plaintiff urges this claim against the Local alleging total damages of $6,755.00 for the period April 1, 1961 to December 14, 1964. The defendant contends that the LMRDA grants no right to union officers who seek to recover lost salary arising out of said position, albeit, such loss is incident to wrongful disciplinary action by the union. The Court is not persuaded by this argument. On the contrary, the better reasoned cases hold that where wrongful disciplinary action results in a loss, appropriate relief will be granted by the courts.⁶ The defendants would construe the statute in so strict a fashion as to leave without its protection union officers, the very people who perforce of their particular knowledge and associations are most capable of participating meaningfully in the democratic process within the union. This was not the intent of the Act, and this the Court will not do.

The Court finds by the fair preponderance of the credible evidence that the plaintiff, now deceased and represented by the Administrator of his estate (hereinafter "plaintiff") suffered damages of lost salary as Financial Secretary of Local 442 as a proximate result of the said wrongful discipline imposed. Accordingly, the loss is determined to be $1,625.00, computed as follows, $25.00 per week for sixty-five weeks beginning on or about April 2, 1961, the date of his removal, and terminating on June 30, 1962, which would have been the last day of his tenure in office.

The plaintiff sought to establish that an additional $10.00 per week "expense money" was, in fact, an additional salary payment. Further, it was claimed that had Mr. Salzhandler not been disciplined in the fashion in which he was, his re-election for another three year term as Financial Secretary was virtually assured. The Court is not persuaded on either issue. Damages must be more than a mere speculative loss, and must be shown to have been proximately caused.

The Court finds that the plaintiff has failed to meet his burden of proof on the issue of "expense money." Once relieved of his post, Mr. Salzhandler was also relieved of whatever expenses and obligations accompany that responsibility. The court is not persuaded by a fair preponderance of the credible evidence that the $10.00 per week designated as "expense money" was intended to compensate the plaintiff for anything other than that.

With respect to the issue of the possible outcome of a future election, in the year 1968, this Court hardly need dwell on the speculation involved in attempting to foresee electoral developments with any degree of certainty. Accordingly, the Court determines that no compensable damages were incurred by virtue of loss of "expense money" or the opportunity for an additional term in office.

The Court will consider next the claim against District Council 9 for loss of wages as a painter resulting from the wrongful discipline imposed. A literal reading of the discipline statement⁷ would lead one to believe that it was in no way intended to affect the plaintiff in the pursuit of his trade as a painter. Upon all the credible evidence the Court finds the very opposite to be the fact. The District Council intended to and succeeded in denying the plaintiff employment in his trade. Based on the testimony, their discipline was calculated to and in fact did accomplish a "blacklisting" of Mr. Salzhandler in the painting trade. This had been his chosen occupation for some twenty-seven years, during all of which time he had been a member in good standing of said Union. That this type of action constitutes wrongful "discipline" cognizable under the Act, is no longer open to debate.⁸

The defendants contend that Mr. Salzhandler would have retired in the normal course of events in 1961, and, therefore, even if they were instrumental in "blacklisting" him, there was no real loss. This account of the facts simply will not stand the test of careful examination. At the outset it is interesting to note that Mr. Salzhandler applied to the Court of Appeals for and received permission to pursue his appeal from Judge Wham's dismissal in forma pauperis. Such a financial condition would hardly seem to be the choosing of a man whose work record was unblemished for over twenty-seven years. But this Court need not speculate as to Salzhandler's intentions. There was ample testimony to persuade the Court by a fair preponderance that Mr. Salzhandler was actively seeking work during the period after the wrongful discipline. His efforts to obtain employment on his own initiative and through the business agents of District Council 9 who should have been the proper source of employment, proved fruitless. There is no question but that this development was the direct result of said discipline; and that such a result was intended by the discipline and subsequent "decision," notification of which was communicated to all members of the Local and to other Locals in the District. The record also contains evidence that such information was known to employers, and that as a consequence of all of this, employment in the painting trade was unavailable to Mr. Salzhandler. Upon the totality of the evidence the court finds that the dramatic decline in Mr. Salzhandler's earnings was the direct and proximate result of the wrongful discipline imposed by District Council 9. The Court finds Mr. Salzhandler's retirement in 1961 nothing more than an attempt on his part to mitigate damages.

Accordingly, the Court determines that the plaintiff be awarded compensatory damages for loss of wages incurred during the period from April 2, 1961 to February 28, 1963, the date on which Mr. Salzhandler suffered a stroke. Computing this on an annual basis of $5,200.00 per year, which the prior work records indicate to be the approximate average rate of income of the plaintiff during the immediately preceding years, the damages amount to $9,900.00 or 99 weeks at $100.00 per week. Although the painting trade is not one in which a weekly salary of a fixed amount is the normal occurrence, after averaging prior income figures, the Court finds this to be the loss based on the credible evidence.

During this entire period, the plaintiff's only...