Local Union No. 65 of Amalgamated SMWIA v. Nalty, 7 F.2d 100 (6th Cir. 1925)

*101 Luther Day and Wm. J. Dawley, both of Cleveland, Ohio (Day & Day and J. Paul Thompson, all of Cleveland, Ohio, on the brief), for plaintiff in error.

W. K. Stanley, of Cleveland, Ohio (Stanley & Horwitz, of Cleveland, Ohio, on the brief), for defendant in error.

Before DENISON, DONAHUE, and MOORMAN, Circuit Judges.

MOORMAN, Circuit Judge (after stating the facts as above).

The Constitution of the Amalgamated Sheet Metal Workers' International Alliance provides: "The transfer card of a member of a local union attached to this International Alliance shall be recognized by the union in which he desires to deposit it, upon the payment of the difference, if any, of the initiation fee of the local union to which he belongs and the union in which he desires to deposit it, accompanied with an official receipt, except in localities where strikes or lockouts exist." This provision is mandatory save "where strikes or lockouts exist." It is suggested, however, that the exception applied, as the negotiations with the employers for an adjustment of the wage scale, pending when plaintiff's application was first presented, were the equivalent of a lockout. We do not think so. Besides, the wage scale was settled in June, and thereafter the Cleveland Local repeatedly refused to accept the transfer, and its rulings were approved by the general executive committee.

To the insistence that the decision of the union cannot be reviewed by the courts a complete answer, it would seem, is that the decision was not in accord with the union's constitution. In such case the member who has been wrongfully denied his rights is not bound by the action of the union. There are cases, cited by defendant, holding that in suspending or expelling a member the acts of the association are quasi judicial, and a court of equity will not lend itself to efforts at restoration. Where no right of property is involved, this is generally true. Kearns v. Howley, 188 Pa. 116, 41 A. 273, 42 L. R. A. 235, 68 Am. St. Rep. 852. We are not concerned with those cases. This is an action at law for damages in redress of a wrong, and the general rule is that one who has been wrongfully suspended or expelled from an association may abandon his claim to membership and resort to an action for damages for the wrong done. Lahiff v. Benevolent Society, 76 Conn. 648, 57 A. 692, 65 L. R. A. 92, 100 Am. St. Rep. 1012; Brennan v. United Hatters, 73 N. J. Law, 729, 65 A. 165, 9 L. R. A. (N. S.) 254, 118 Am. St. Rep. 727, 9 Ann. Cas. 698. The right exists independently of the exhaustion of remedies in the order. Plaintiff exhausted every reasonable means at his command to procure within the order the rights to which he was entitled before resorting to this action. Defendant withheld them. He is not without remedy for the wrong. Independent Order v. Wilkes, 98 Miss. 179, 53 So. 493, 52 L. R. A. (N. S.) 817. As there is no provision in the constitution or by-laws that a member of the order must resort to its tribunals for redress, nor any that, having done so, both are bound by the decision, we need not consider whether the presence of such provisions would lead to different results.

Complaint is made of that part of the charge which told the jury, in effect, that it was the duty of defendant, when it offered on September 21st to accept a transfer card if plaintiff would procure a new one, to advise him that the offer was unconditional, so that he would not be put to the risk and hazard by accepting it of waiving his right to redress for previous wrongs, if any had been committed. The objection would be forceful if the negotiations of that date had related exclusively or in their major purposes to membership in the local union. But they did not. The meeting was called to consider the claim that plaintiff had filed with the general executive committee. The parties were conferring about it. The proof shows that it was discussed in connection with the offer, though as to what was said there are different versions. From these facts it is fair to assume that the offer was incidental to the purposes of the meeting.

The connection in which the offer was made and the purposes for which the imposed condition was considered by the jury *102 are determinative of the effect of the instruction. The language complained of was used in defining plaintiff's duty to mitigate his losses. It was stated in the charge that it was his duty to accept the offer of September 21st and procure work thereafter, if he could, as a member of the local union; but he was not required to do so, in mitigating his damages, unless at the time the offer was made he was advised that it was unconditional so far as his claim was concerned. Certainly it was not his duty to accept the offer if it was made upon the condition that he abandon his claim. A permissible if not the only logical inference from the circumstances referred to in the absence of a statement to the contrary was that the offer was conditioned upon a renunciation of the claim. It was not, therefore, error to require defendant to have informed plaintiff that an acceptance of the offer would not prejudice his claim.

What we have heretofore said disposes of the assignments of error on the court's refusal to give the charges requested. As to the contention that there is not substantial evidence to support so large a verdict, it is sufficient to say that, if plaintiff had been regularly employed during such time as he was unable to obtain employment between April 3, 1921, and June, 1922, his earnings, with interest thereon from the date of the final action of the executive committee, and what he expended in mitigating his losses, would have amounted to more than the verdict. But it is said that work was scarce, and he would not have been able to procure it in Cleveland, even if given a card, and further that it was his duty to go to another city and find employment. On the first point the evidence is conflicting, but supports the award. With the second we cannot agree. Plaintiff was entitled to membership in the local union. His home was in Cleveland, and he had the right to confine his efforts to the city in which he lived. It would be too much to expect one who is lawfully entitled to membership in a local union, and who has been denied that right, to abandon his home and go to another city for the purpose of mitigating his losses. If, as the evidence tends to show, he exercised the proper degree of diligence in attempting to procure work which he was capable of doing within the city of Cleveland, he performed every duty that he was required to perform.

The judgment is affirmed.