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April 8, 1960

James GROSS, Plaintiff,
Eugene A. KENNEDY, individually and as General Manager of Local 1500, Retail Food Clerks' Union, and Retail Clerks' International Association, Local 1500, Retail Food Clerks' Union, and Food Fair Stores, Inc., Defendants

The opinion of the court was delivered by: LEVET

This is an action allegedly arising under the Labor-Management Reporting and Disclosure Act of 1959 (hereinafter designated as the 'Act'). By an order to show cause dated February 9, 1960, plaintiff moved for a preliminary injunction pending determination of his action for a permanent injunction ordering the defendants (1) to revoke the order of the Grievance Board of defendant Local 1500, Retail Food Clerks' Union (hereinafter designated as the 'union') removing plaintiff from his employment at defendant Food Fair Stores, Inc. (hereinafter designated as 'Food Fair'); (2) to reimburse plaintiff for all lost wages at his regular rate of pay when last employed by Food Fair, less any wages earned in mitigation; (3) to cease and desist from violating Title 1, Section 101(a)(5) of the Act, 29 U.S.C.A. § 411(a)(5), and the Constitution and By-Laws of said union.

By order of motion filed February 19, 1960, defendant Food Fair moved to dismiss the action against it on the ground that the court lacked jurisdiction over the subject matter. A similar motion was made by the union.

 Affidavits were submitted by plaintiff and by the defendants upon the motion for a preliminary injunction. Upon a further argument of this motion and the motions made by defendants on March 18, 1960, counsel were notified that the defendants' motions would be deemed motions for summary judgment. At this hearing defendants orally moved for summary judgment on the papers theretofore presented. Plaintiff's counsel was given an opportunity to submit any further affidavits on the merits which he might choose, but although he offered to submit proof solely relating to lack of justification for the discharge, he declined to submit any other proof, and in view of the fact that the court took the position that the facts proposed in the aforesaid proffer were not relevant here, plaintiff submitted no other affidavits or proof.

 Plaintiff alleges that he was employed as a retail clerk by defendant Food Fair for nine years. During this period he was required to be and was a member in good standing of the defendant union. He states that by letter of the union dated December 1, 1959, which he received December 4, 1959, he was ordered to appear before the Grievance Board of the union on December 7, 1959. This communication stated: 'You are hereby officially notified to appear before the Grievance Board on Monday, December 7, 1959 at 7:30 P.M. at the above address to answer charges brought by the Company for breaking Company Policy. It is imperative that you comply with the above request.' Exhibit A, affidavit of James Gross.

 Plaintiff maintains that on December 7, 1959, before the Grievance Board, he was 'subjected to a so called trial at which inter alia, he was excluded from the room while testimony was given against him, given no opportunity to confront or cross-examine witnesses testifying against him before a body which had no constitutional authority to try him or render a decision, for offenses of which he was never given notice without opportunity to prepare a defense or summon witnesses in his own behalf.' Complaint, Par. IX.(3).

 At the conclusion of the proceeding, plaintiff contends that he was ordered removed from his job by the presiding officer of the Grievance Board, who informed a company representative that a replacement for plaintiff would be sent to the store the next day. He states that at no time was he notified by the company or any person acting on behalf of the company that he was discharged.

 Plaintiff made two appearances before the Executive Board for reinstatement and compensation for lost wages. His request was denied. The notification of this denial sent by the General Manager of the union advised plaintiff's attorney: 'The Executive Board meeting was on Tuesday, January 26. After hearing all of the facts of the James Gross case, the Executive Board sustains the recommendation of the Grievance Board that he be taken off the job and report to the employment office of the union.' Exhibit D. (Emphasis supplied.)

 Article IV, Section 2(a) of the Constitution and By-Laws of the union gives the Executive Board of the union the power to remove a member from his job. This section reads: 'Duties and Powers of The Executive Board. The Executive Board shall have the right to try, hear and determine and even suspend or expel a member. It may remove a member from his job in accordance with the constitution.'

 Plaintiff states that he was never discharged by the company; that the disciplinary machinery of the union was invoked; that he was denied his rights under the Act as well as under the union Constitution and By-Laws.

 At issue in the decision on the motions seeking to resist the jurisdiction of this court is the question of whether the activities complained of fall within the phrase 'or otherwise disciplined' in Section 101(a)(5).

 The plaintiff contends that if the disciplinary machinery of the union is to be invoked to obtain the discharge of a member, whether by the union or the company, or both, all procedural safeguards must be observed. He concludes that a union member has a protected right under Section 101(a) to due process in any situation where the disciplinary machinery is invoked against him in his status as a member of the labor organization by said labor organization or any of its officials acting in their official capacity.

 The position of the defendants is that the plaintiff was not disciplined in any way by the union; that his discharge from the employ of Food Fair was the result of an unsatisfactory work record and in accordance with the collective bargaining agreement between the union and the employer.

 An affidavit by Seymour Gelbond, District Manager of Kings and Nassau Counties for the defendant Food Fair, chronicles a series of transfers of plaintiff among the various stores of Food Fair allegedly because of poor work habits. The plaintiff is characterized as an unproductive and uncooperative worker. It is alleged that 'his fellow employees, union members, were constantly complaining that he was soldiering on the job and failing to perform his duties.'

 Gelbond states that, because of plaintiff's poor work record, in the early part of December 1959, he recommended the immediate discharge of Gross, but that he was requested by Melvin Levy, Personnel Manager, to hold the discharge in abeyance until December 7, 1959. On that date a meeting was held at the union office, at which the Produce Supervisor in charge of all produce departments in the area, two other produce men in charge of two stores, and Gelbond attended. Plaintiff's work record and his non-productivity were demonstrated by the testimony of these company men. The union agreed not to contest the discharge of the plaintiff in accordance with the collective bargaining agreement.

 Gelbond avers that all of the discussions and dealings which took place both prior to December 7, 1959, on December 7, 1959, and subsequent thereto did not deal with the plaintiff's membership rights, but with his conduct and actions as an employee of the defendant Food Fair. He concludes that Food Fair discharged the plaintiff for just cause in accordance with the collective bargaining agreement.

 An affidavit by defendant Eugene A. Kennedy, Secretary-Treasurer and General-Manager of the union, is to the same general effect. Kennedy alleges that the examination of facts conducted by the union's Grievance Board related solely to plaintiff's tenure of employment with his employer and was conducted pursuant to the provisions contained in the collective bargaining agreement in force between the union and Food Fair, which read as follows:

 '8th: (a) The Employer shall have the right to discharge any employee who has been employed by it for less than thirty (30) days without assigning any cause therefor; thereafter, the Employer shall have the right to discharge any employee for good and sufficient cause only.

 '(b) In case of the discharge of an employee who has been in service for more than thirty (30) days, such employee shall have the right to appeal to the Union. Upon such appeal, the Employer and the Union shall jointly investigate the reasons for such discharge and the justification therefor. If the Union and the Employer cannot agree as to the justification for such discharge, then the matter shall be submitted to arbitration in accordance with the provisions of this agreement. In the event that the discharge is found not to be justified, the discharged employee shall be reinstated with full pay for his time lost and with restoration of his privileges and seniority rights.

 '20th. In case of any complaint on the part of either the Employer or the Union, or any individual employee, the matter must be taken up in the first instance by the Employer and the Union's Grievance Committee or any other authorized official of the Union without delay. Should these parties be unable to adjust the said grievance, the matter must be referred to a Board of Arbitrators consisting of one member selected by the Employer, one member selected by the Union, and a third, who shall acts as Chairman, selected by the two as chosen. * * *'

 Kennedy stated that a few days prior to December 7, 1959, plaintiff's employer notified the union that it intended to discharge the plaintiff for cause. The union persuaded the employer not to discharge plaintiff until the union's Grievance Board had an opportunity to listen to the facts which the employer deemed justification for such a discharge. Kennedy further alleges that after hearing all the facts and circumstances the union's Grievance Board concluded that the employer had just cause to discharge the plaintiff and so notified the plaintiff.

 The contention of the defendant union is that the meeting of December 7th was not a trial or even a hearing. It constituted merely an inquiry conducted by the union's Grievance Board to ascertain whether the employer had just cause to discharge the plaintiff. Had the Grievance Board not found facts and circumstances to justify such a ...

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