Vars v. INTERNATIONAL BRO. OF BOILERMAKERS, ETC.

• Decision Date: 25 April 1962
• Docket Number: Civ. No. 9044.
• Citation: 204 F. Supp. 245
• Court: U.S. District Court — District of Connecticut
• Parties: Arthur VARS, Sr., v. INTERNATIONAL BROTHERHOOD OF BOILERMAKERS, IRON SHIPBUILDERS, BLACKSMITHS, FORGERS AND HELPERS.

204 F. Supp. 245

Arthur VARS, Sr., v. INTERNATIONAL BROTHERHOOD OF BOILERMAKERS, IRON SHIPBUILDERS, BLACKSMITHS, FORGERS AND HELPERS.

Civ. No. 9044.

United States District Court D. Connecticut.

April 25, 1962.

Smeraldi & Shafner, by Matthew Shafner, New London, Conn., for plaintiff.

Conway, Horwitz & Tamborra, by J. Patricia Smith, Norwich, Conn., for defendant.

BLUMENFELD, District Judge.

Claiming to have been expelled from membership in International Brotherhood of Boilermakers, etc. and its Local No. 614 in violation of his rights under the constitution of the union and the provisions of 29 U.S.C.A. § 411(a) (5), the plaintiff brought this action for restoration of his membership rights and reinstatement to the office of president.

In a ruling which denied both the plaintiff's motion for an injunction and the defendant's motion to dismiss, it was pointed out that the only matter properly at stake for determination by this court was whether the plaintiff was entitled to be reinstated as a member.

The plaintiff now moves for permission to file an amended complaint, which enlarges his previous complaint by adding allegations that the local was improperly placed under trusteeship in violation of the provisions of 29 U.S.C.A. § 462 and the applicable provisions of the International's constitution.

The defendant objects to the granting of permission to file the proposed amendment on the ground that to permit it would be an idle move, since the new claim which is incorporated in it cannot withstand a motion to dismiss. See Moore's Federal Practice, 2d Edition 1948, Vol. 3, p. 834. Having sought leave to amend, the plaintiff may be regarded as having waived his right to amend once, as a matter of course, which is granted by Rule 15(a) F.R.Civ.P., 28 U.S.C.A. Matter of Watauga Steam Laundry, D.C.E.D.Tenn., 1947, 7 F.R.D. 657.

Jurisdiction

The amended complaint, in effect, seeks to add another cause of action against the International for a claimed violation by the defendant of sections of the Trusteeship Subchapter, particularly 29 U.S.C.A. § 462. The only basis upon which jurisdiction is claimed to exist is found in § 464(a), the last sentence of which reads:

"Any member or subordinate body of a labor organization affected by any violation of this subchapter (except section 461 of this title) may bring a civil action in any district court of the United States having jurisdiction of the labor organization for such relief (including injunctions) as may be appropriate."

No other basis of jurisdiction is necessary. Executive Board, etc. v. Electrical International Bro. of Electrical Workers, D.C.M.D., 1960, 184 F.Supp. 649, 652; Cf. Dowd Box v. Courtney, 368 U.S. 502, 82 S.Ct. 519, 7 L.Ed.2d 483 (1962). However, § 464(a) also provides that:

"Upon the written complaint of any member or subordinate body of a labor organization alleging that such organization has violated the provisions of this subchapter * * the Secretary shall investigate the complaint and if the Secretary finds probable cause to believe that such violation has occurred and has not been remedied he shall, without disclosing the identity of the complainant, bring a civil action * *."

Exhaustion of Administrative Remedy

There is a sharp diversity of view as to whether the remedy available through the Secretary is one which must be exhausted before the aid of this court may be sought by a member or subordinate body.

On this issue, I find myself in agreement with the view that has been most fully developed by Judge Watkins in Executive Board, etc. v. Electrical International Bro. of Electrical Workers (supra) that is also followed by Railway & Steamship Clerks, Palisades Lodge 173 v. Railway & Steamship Clerk, 41 L.C. 16, 666 (Dec. 9, 1960). On any nontechnical construction of the English language, one would say that there are two separate and independent routes through which a member or a labor organization may seek a remedy. The elaborate analysis of the legislative history and the interpretive bulletins of the Labor Department made by Judge Watkins, 184 F.Supp. 649, leaves me unable to find any basis for construing § 464 to require a member to exhaust any remedy through the Secretary of Labor before he presents a claim directly in his own behalf. Flaherty v. McDonald, S.D.Cal., 1960, 183 F.Supp. 300; Rizzo v. Ammond, D.C.N.J., 1960, 182 F.Supp. 456, cited as contra, discussed the question only in connection with other issues upon which those decisions were expressly rested.

Standing of the Plaintiff

Having been expelled from the union after the trusteeship was imposed upon the local of which the plaintiff was then a member, the defendant contends that he does not now have standing to bring this particular action.

The defendant contends that the right to bring an action under Title III is limited, insofar as an individual in his individual capacity is concerned, to a "member" of the labor organization under attack. (29 U.S.C.A. § 464.) A "member" when used in reference to a labor organization under the Act with exceptions which do not include Title III, is "any person who has fulfilled the requirements for membership in such organization, and who neither has voluntarily withdrawn from membership nor been expelled or suspended from membership after appropriate proceedings consistent with the lawful provisions of the constitution and bylaws of such organization." (29 U.S.C.A. § 402(o).) The Enforcement Section of Title I provides for the bringing of civil suit by "any person whose rights secured by the provisions of this title have been infringed by any violation of this title." (29 U.S. C.A. § 412.) "Any person" was used instead of "any member" obviously to cover persons claiming wrongful expulsion.

The defendant presses its argument that the legislature did not intend a person expelled from membership to be considered a "member" pending a court's decision as to whether or not he was expelled in violation of § 411(a) (5) because the legislature must be presumed to have been fully aware that in establishing and administering a trusteeship, a member might very well be expelled, and, therefore, it would have used the term "person", not "member", in the enforcement section of Title III if it intended that trusteeship violations should be the basis for any claim by a person expelled from the union.

However, the plaintiff in this suit also seeks to be reinstated to membership as of the time of his expulsion. The situation thus presented would seem to fall within Rule 18 F.R.Civ.P., Joinder of Claims and Remedies:

"(a) Joinder of Claims. The plaintiff in his complaint or in a reply setting forth a counterclaim and the defendant in an answer setting forth a counterclaim may join either as independent or as alternate claims as many claims either legal or equitable or both as he may have against an opposing party. There may be a like joinder of claims when there are multiple parties if the requirements of Rules 19, 20, and 22 are satisfied. There may be a like joinder of cross-claims or third-party claims if the requirements of Rules 13 and 14 respectively are satisfied.

"(b) Joinder of Remedies; Fraudulent Conveyances. Whenever a claim is one heretofore cognizable only after another claim has been prosecuted to a conclusion, the two claims may be joined in a single action; but the court shall grant relief in that action only in accordance with the relative substantive rights of the parties. In particular, a plaintiff may state a claim for money and a claim to have set aside a

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