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November 22, 1961

John HAMILTON, Plaintiff,
Matthew GUINAN, individually and as President and Ellis F. Van Riper, individually and as Secretary-Treasurer of the Transport Workers Union of Greater New York, Local 100, AFL-CIO; Michael J. Quill, individually and as President and Matthew Guinan, individually and as Treasurer of the Transport Workers Union of America, AFL-CIO, Defendants

The opinion of the court was delivered by: METZNER

Plaintiff, Hamilton, is a member of defendant Transport Workers Union of America, AFL-CIO, and was, until July 15, 1960, the second vice-president of defendant Local 100. In June 1960 bus drivers of the Omnibus branch of Local 100 engaged in a wildcat strike, protesting the rearrangement of their seniority and employment rights necessitated by the order of the City of New York making Lexington and Third Avenues one-way. A committee of the Executive Board of Local 100 investigated the wildcat strike immediately after it ended, and suspended plaintiff from his office of vice-president pending a hearing by the Local Executive Board, on the ground:

'that (he) failed to properly perform (his) duties and fulfill (his) responsibilities as a vice president of Local 100 in connection with the unauthorized and illegal work stoppage on the Omnibus lines of the Fifth Avenue Coach Company in violation of Article 20 of the Local By-Laws and in violation of Article 22 and 25 of the Constitution of the Transport Workers Union of America, AFL-CIO.'

 The Local Executive Board dismissed the plaintiff from office. Hamilton appealed to the International Executive Council, which affirmed the decision of the Local Board. He thereafter appealed to the Eleventh Constitutional Convention of the TWU, which rejected his appeal on October 6, 1961.

 The biannual election of Local 100 is to be held in December 1961. Plaintiff wishes to run for office, but apparently considers that he will be unable to run, or, if elected, to serve, because of article XIV, section 15, of the constitution of the TWU, which states:

 'No member who shall have been duly found guilty of any violation of any provision of this Constitution or of any by-laws, rules or regulations adopted by the Local Union of which he is a member * * * shall be eligible for election as an International Officer of the Transport Workers Union of America or as a delegate to the International Convention thereof, or as an officer of any section, branch or Local thereof, until such time as the International Convention * * * shall declare him to be eligible.'

 In order to remove this disability, plaintiff sues to enjoin enforcement of the decision of the union removing him from office, for reinstatement in office, and for damages. He claims that he was 'disciplined' in violation of 29 U.S.C.A. § 411(a)(5). This section states:

 'No member of any labor organization may be fined, suspended, expelled, or otherwise disciplined except for nonpayment of dues by such organization or by any officer thereof unless such member has been (A) served with written specific charges; (B) given a reasonable time to prepare his defense; (C) afforded a full and fair hearing.'

 Jurisdiction of this claim is asserted under 29 U.S.C.A. § 412, which provides that:

 'Any person whose rights secured by the provisions of this subchapter have been infringed by any violation of this subchapter may bring a civil action in a district court of the United States for such relief (including injunctions) as may be appropriate.'

 Defendants move to dismiss on the ground that this court lacks jurisdiction of the claim since the discipline was imposed on Hamilton as an officer of the union, and section 411(a)(5) applies only to discipline imposed on members as members. Both parties also move for summary judgment.

 Defendants' contention is correct that section 411(a)(5) does not apply to discipline imposed on officers of unions for dereliction in their duties as officers. The legislative history clearly supports this conclusion. For example, in Conference Report No. 1147, the Statement of the Managers on the Part of the House said of section 411(a)(5):

 'it should be noted that the prohibition on suspension without observing certain safeguards applies only to suspension of membership in the union; it does not refer to suspension of a member's status as an officer in the union.' 86th Cong., 1st Sess., 1959-2 U.S.Code Cong. & Ad. News 2504.

 In the Senate debate on the statute, Senator Kennedy, a member of the committee, stated:

 'The so-called bill of rights title also secures important procedural safeguards against improper disciplinary action against union members as members. The Senate should note, however, that all the conferees agreed that this provision does not relate to suspension or removal from a union office. Often this step must be taken summarily to prevent dissipation or ...

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