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Real v. Curran

Supreme Court of New York, Appellate Division

March 15, 1955

Real
v.
Curran

APPEAL from a judgment of the Supreme Court in favor of defendants, entered December 8, 1954, in New York County, upon an order of the court at Special Term (GAVAGAN, J.), which (1) denied a motion by plaintiff for judgment on the pleadings, and (2) granted a cross motion by defendants for a dismissal of the complaint on the ground that the court does not have jurisdiction of the subject matter of the action.

COUNSEL

Louis Friedman for appellant.

Eugene N. Sosnoff of counsel (Cooper, Ostrin & De Varco, attorneys), for respondents.

Page 553

BREITEL, J.

Plaintiff, an expelled member of defendant maritime union, appeals from a judgment, on defendants' motion, dismissing the complaint, for lack of jurisdiction over the subject matter. The complaint sought restoration to membership in the union and damages. Special Term, in dismissing the complaint, was of the view that an unlawful deprivation of membership constituted a union unfair labor practice within section 8 (subd. [b], par. [2]) of the Labor Management Relations Act, 1947 (U. S. Code, tit. 29, ยง 158, subd. [b], par. [[2]) and that plaintiff's remedy, if any, was within the exclusive jurisdiction of the National Labor Relations Board.

According to the allegations of the complaint, accepted as true on defendants' motion to dismiss, plaintiff, a steward, has, since 1944, been a member in good standing of defendant union. Under the union's constitution: 'Any member * * * found guilty by any court of law during such period of membership of committing offenses involving the possession, sale or use of narcotics * * * shall stand automatically suspended from the union.' (Emphasis supplied.) Plaintiff had in 1939, nearly five years prior to membership, been convicted in a Federal court of a narcotics charge. This was his only such conviction.

In June, 1954, plaintiff was notified by the union that in 1939 he had been found guilty of 'attempting to smuggle a very large quantity of opium into the United States on November 2, 1936.'He then was expelled.

Plaintiff had been employed as a steward by the United States Lines on ships sailing between the United States and Europe. As a result of the expulsion, he was discharged and has been unable to obtain other employment. Consequently, he seeks judgment declaring void his expulsion and restoring him to membership; mandating the issuance to him of a union card; enjoining the union from representing that he is not a member in good standing and from directing other members to refuse to work with him; and awarding him the sum of $2,057.

Apart from the effect of Federal legislation, it has long been the law in this State that a wrongfully expelled member of a labor union is entitled to restoration to union membership and, in a proper case, damages for consequent loss of wages. (See, e.g., Polin v. Kaplan, 257 N.Y. 277, and Browne v. Hibbets, 290 N.Y. 459.)

Accordingly, the question narrows to whether the provisions of the Labor Management Relations Act, 1947, so far deal with the subject matter of this action as to exclude the State court

Page 554

from its traditional jurisdiction. (See United Workers v. Laburnum Corp., 347 U.S. 656, 663-665.)

The union contends that the conduct ascribed to it by plaintiff constitutes an unfair labor practice for the redress of which the National Labor Relations Board has exclusive jurisdiction.Concededly, if the board has power to grant complete relief to plaintiff, Special Term properly ...


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