Before LUMBARD, Chief Judge, CLARK and KAUFMAN, Circuit Judges.
LUMBARD, Ch. J.: This appeal raises an important question of the rights of union members under the Labor-Management Reporting and Disclosure Act of 1959, 29 U.S.C. §§ 401-531; whether a union member's allegedly libelous statements regarding the handling of union funds by union officers justify disciplinary action against the member and his exclusion from any participation in the affairs of the union for five years, including speaking and voting at meetings and even attending meetings. We hold that the LMRDA protects the union member in the exercise of his right to make such charges without reprisal by the union; that any provisions of the union constitution which make such criticism, whether libelous or not, subject to union discipline are unenforceable; and that the Act allows redress for such unlawful treatment. Accordingly we reverse the judgment rendered by Judge Wham, sitting in the United States District Court of the Southern District of New York, which dismissed the union member's complaint and we remand the case for further proceedings.
Solomon Salzhandler, a member of Local 442, Brotherhood of Painters, Decorators & Paperhangers of America, brought suit in the district court following the decision of a Trial Board of the union's New York District Council No. 9 that he had untruthfully accused Isadore Webman, the president of the local, of the crime of larceny. The Trial Board found that Salzhandler's "unsupported accusations" violated the union's constitution which prohibited "conduct unbecoming a member * * *", "acts detrimental to * * * interests of the Brotherhood", "libeling, slandering * * * fellow members or officers of local unions" and "acts and conduct * * * inconsistent with the duties, obligations and fealty of a member."*fn1
Salzhandler's complaint alleged that his charges against Webman were an exercise of his rights as a member of the union and that the action of the Trial Board was in violation of the provisions of the LMRDA under which he was entitled to relief.
The undisputed facts developed during the trial in the district court amply support Salzhandler's claims for relief.
Salzhandler was elected financial secretary of Local 442 in 1953. He was reelected thereafter and at the times in question he was serving a three-year term which was to end June 30, 1962. His weekly compensation as an officer was $35, of which $25 was salary and $10 was for expenses. The dispute giving rise to this suit was touched off in November 1960 by Salzhandler's distribution to members of Local 442 of a leaflet which accused Webman of mishandling of union funds.
Prior to the audit each July, Salzhandler obtained the checks for the auditor. In going over the union's checks in July 1960 Salzhandler noticed that two checks, one for $800 and one for $375, had been drawn to cover the expenses of Webman and one Max Schneider at two union conventions to which they were elected delegates. The $800 check, drawn on August 21, 1959 to Webman's order, was endorsed by Webman and his wife. The $375 check, drawn on March 4, 1960 to "Cash," was likewise endorsed by Webman and his wife. Schneider's endorsement did not appear on either check. Schneider had died on May 31, 1960.
On July 15, 1960 two checks, each for $6, were drawn as refunds of dues paid by Max Schneider and another deceased member. Such checks were ordinarily mailed to the widows. Webman, however, brought the two checks to Salzhandler and told him to deposit them in a special fund for the benefit of the son of Max Schneider. Salzhandler refused to do this because the checks were not endorsed. Thereafter Sol Feldman and W. Shirpin, who were trustees of the local, each endorsed one of the checks and Salzhandler made the deposit as Webman had requested.*fn2
In November 1960 Salzhandler distributed to members of the local a leaflet which accused Webman of improper conduct with regard to union funds and of referring to members of the union by such names as "thieves, scabs, robbers, scabby bosses, bums, pimps, f-bums, and jail birds."*fn3 Attached to the leaflet were photostats of the four checks. With regard to the convention checks, Salzhandler wrote:
"The last convention lasted five days, Monday August 31, to Friday, September 4, 1959. The delegates of 442 presented their credentials Monday, August 31, and on Thursday, September 3, as soon as they got the mileage fare, they disappeared. They were absent at Thursday afternoon session. The most the chairman should have gotten was a week's pay and allowance - $250.00. The auditor's report shows he got $200 in pay and $300 in expenses - $500, or twice what was coming to him, and also $300 as expenses for the Business Agent. The check was made out to Cash for $800 (photostat enclosed). So was the voucher. It does not indicate that Max Schneider got any of it. The same goes for a check made out only to I. Webman on March 4, 1960 for another convention, where the chairman was to get $250, but got $375. It does not indicate Schneider got his share. Were the checks legal?"
The leaflet also branded Webman as a "petty robber" of the two $6 checks:
"To prove himself most unworthy of any trust, he performed the cheapest petty act ever. Two widows were refunded each $6.00 for overpayment of dues. Two checks were issued to that effect. The petty robber had two of his friends sign their names and the chairman declared these two checks as contributions to the special tax for Michael Schneider - photostats of checks enclosed."
On December 13, 1960 Webman filed charges against Salzhandler with the New York District Council No. 9 of the union, alleging that Salzhandler had violated the union constitution, § 267, by libeling and slandering him in implying that he, Webman, had not reimbursed Max Schneider for convention expenses, and that he had been a "petty robber" in causing the two $6 checks to be deposited in the Michael Schneider fund, rather than being paid overto the two widows. The charge went on to state that Salzhandler was guilty of "acts and conduct inconsistent with the duties, obligations and fealty of a member or officer of the Brotherhood" and that the net effect of the leaflet was untruthfully to accuse an officer of the union of the crime of larceny. For over six hours on the evening of February 23, 1961, Salzhandler was tried by a five-member Trial Board of the District Council. As the union rules permitted, Salzhandler was represented by a union member who was not a lawyer. At the trial, Webman introduced the leaflet. Salzhandler produced the photostats and was questioned by the Trial Board. Webman's witnesses testified that the convention expenditures were approved by the membership.Salzhandler produced three witnesses who testified that Webman had called members names as alleged in the leaflet.
Not until April 2, 1961 did Salzhandler receive notice of the Trial Board's decision and his removal from office and this was from a ...