The opinion of the court was delivered by: ZAVATT
The "FIRST CAUSE OF ACTION" is one for a declaratory judgment and an injunction brought by four former employees of Harry M. Stevens, Inc. (hereinafter Stevens), the restaurant concessionaire at Yonkers Raceway, under section 102 of the Labor Management Reporting and Disclosure Act of 1959 (hereinafter the Landrum-Griffin Act), 29 U.S.C. § 412. The defendant has moved, before answer, for summary judgment on this claim.
From the papers before the court it would appear that Stevens has an exclusive concession at Yonkers Raceway and at Roosevelt Raceway; that the Racetrack Advisory Council, a duly constituted authority of the Hotel and Restaurant Employees and Bartenders International Union, entered into a collective bargaining agreement with Stevens, dated May 17, 1965, with respect to the rates of pay, hours of work and conditions of employment at the said concessions of Stevens; that this collective bargaining agreement was entered into in behalf of the defendant, Local 164, and Local 178; that Local 178 has jurisdiction of the employees of Stevens at Yonkers Raceway and Local 164 has jurisdiction of its employees at Roosevelt Raceway; that, on October 7, 1966, a number of the employees of Stevens, some of whom were members of Local 178 and some of whom were members of Local 164, engaged in a work stoppage at Yonkers Raceway; that Stevens claimed that this action was a violation of the said collective bargaining agreement, which contained a no strike clause "as long as the terms of this agreement are complied with by both parties hereto." Thereupon, Stevens instituted an action in the New York State Supreme Court, Westchester County, against those of its employees who had engaged and were engaging in the said alleged unlawful work stoppage. The said Supreme Court issued a preliminary injunction on October 31, 1966, restraining all of the defendants served therein (including Joseph Tirino), during the pendency of the said action, from picketing in the vicinity of Yonkers Raceway; from causing any strike, work stoppage, slowdown, etc., among employees of Harry M. Stevens, Inc. or any other employer at Yonkers Raceway; from interfering with the operation of Harry M. Stevens, Inc. at Yonkers Raceway; from taking or attempting to take any action by inducing employees of Harry M. Stevens, Inc. to refrain from working for it; from taking any action to induce any customer or supplier to refrain from doing business with Harry M. Stevens, Inc.; from taking any action to persuade any person to refrain from delivering goods or commodities to or from Harry M. Stevens, Inc. or in any other manner interfering with the business of Harry M. Stevens, Inc. at Yonkers Raceway. Joseph Tirino, one of the plaintiffs in the action pending in this court, moved in the Appellate Division of the New York State Supreme Court, Second Judicial Department, for an order vacating the said preliminary injunction. This motion was denied on or about April 11, 1967. From the papers before this court it would appear that said action in the state court is pending undetermined and that the said preliminary injunction remains in full force and effect. The plaintiffs were and are members of Local 164.
Certain members of that union filed intraunion charges against the plaintiffs accusing them of having engaged in a wildcat strike on October 7, 1966; having intimidated approximately 100 members of Local 164 and Local 178 to walk off and remain away from their jobs; with having carried picket signs containing false and misleading statements and with having attempted to compel Stevens to vary the terms of the collective bargaining agreement between Stevens and the International Union, dated May 17, 1965. In the plaintiffs' answers to the charges they denied that they picketed; that they encouraged any fellow worker to strike or to refuse to work; that they intimidated any members of either Local 164 or Local 178; that they participated in a wildcat strike. They objected to many of the charges upon the ground that they were not specific. Thereafter the charging parties advised each plaintiff, in writing, as to what it claimed were "specifications to our charges." The defendant appointed a Trial Committee and, on May 4, 1967, notified each of the plaintiffs, in writing, that hearings on the union charges would be held on June 8, 1967, at 7 P.M., at union headquarters in Hempstead, Nassau County. After some of the plaintiffs (Tirino, Canning and Brown) received notice of the hearing they wrote to the defendant complaining that the charges were still not sufficiently specific. The union referred these letters to the Trial Committee. On the eve of the trial the attorney for the plaintiffs sent a telegram to the defendant advising it that he had instructed his clients "not to appear for trial on the unspecific charges" and advising the union further that "my clients have asked me to file in the U.S. District Court the Eastern District an action under Title WQ of the LMRDA and such suit was filed this day."
The complaint in the action pending in this court was filed on June 7, 1967. An amended complaint was filed September 11, 1967. In the "FIRST CAUSE OF ACTION" they seek a declaratory judgment that the union charges against them are "unlawfully unspecific." They also contend that they can not obtain a fair hearing because the defendant's Trial Committee is dominated by Anthony R. Amodeo, the secretary-treasurer of the defendant. They allege, further, that they have been disciplined by the union without a hearing. They allege that they "have exhausted all intra-union remedies available to them prior to institution of this action; and they have been unable to obtain any relief." They allege that they have been constructively suspended or expelled from the defendant union in violation of § 101(a)(5) of the Landrum-Griffin Act, 29 U.S.C. § 411(a) (5).
Therefore, they seek an order of this court enjoining the defendant from violating the Landrum-Griffin Act. It is not clear from the complaint whether they seek to enjoin the defendant from conducting an intraunion trial against them or whether they also seek to enjoin the defendant from the various acts of discipline which they claim have already been imposed upon them by the defendant.
The defendant has moved for summary judgment upon the grounds that:
1. the charges are sufficiently specific;
2. the plaintiffs can obtain a fair intraunion hearing upon said charges;
3. the plaintiffs have not been "fined, suspended, expelled or otherwise disciplined" within 29 U.S.C. § 411(a)(5) and, therefore, have no right to institute this action under 29 U.S.C. § 412;
4. the plaintiffs have not exhausted their intraunion remedies and, therefore, have no right to institute this action under 29 U.S.C. § 411(a)(4);
5. the claimed acts of discipline did not occur; even had they occurred, they do not come within the meaning of "otherwise disciplined" under 29 U.S.C. § 411(a)(5).
May This Action Be Maintained Prior to the Intraunion Trial
Defendant contends that the absence of union discipline on the pending charges is a bar to the claim in the complaint that the charges lack specificity and the claim that the Trial Committee is dominated by an allegedly biased secretary-treasurer. It contends that 29 U.S.C. §§ 411(a)(5) and 412 deprive the court of jurisdiction because the plaintiffs have not yet been tried and disciplined by the union. Section 412 speaks, in the past tense, of a person "whose rights . . . have been infringed" and section 411(a)(5) speaks of the right not to be "disciplined" without "written specific charges," "a reasonable time to prepare his defense" and "a full and fair hearing." The defendant contends that the past acts of discipline did not occur and that, therefore, none of their rights have been "infringed" and that they have not yet been disciplined on the pending charges.
Some courts support the defendant's contention that the absence of "discipline" by a union is a bar to a suit against it under sections 101(a)(5) and 102 of the Landrum-Griffin Act, 29 U.S.C. §§ 411(a)(5), 412. Kuykendall v. Local 1763, United Bhd. of Carpenters, 56 L.R.R.M. 2455 (D. Wyo. 1964); Flaherty v. International Union, United Steelworkers, 41 Lab. Cas. (CCH) P16,517 (S.D. Cal. 1960). See also Nix v. Fulton Lodge No. 2, Int'l Ass'n of Machinists, 262 F. Supp. 1000, 1002 (N.D. Ga. 1967). Other courts consider the absence of union discipline as only one relevant factor in determining whether judicial relief may be obtained without having first exhausted intraunion remedies. Baron v. North Jersey Newspaper Guild, 342 F.2d 423 (3d Cir. 1965); Armondo v. Urbach, 236 F. Supp. 317 (S.D.N.Y. 1964); cf. Deluhery v. Marine Cooks & Stewards Union, 211 F. Supp. 529 (S.D. Cal. 1962), such exhaustion of intraunion remedies being a presumptive but not an absolute prerequisite to a suit under the Landrum-Griffin Act, Detroy v. American Guild of Variety Artists, 286 F.2d 75 (2d Cir.), cert. denied, 366 U.S. 929, 81 S. Ct. 1650, 6 L. Ed. 2d 388 (1961).
Declaratory relief in advance of a threatened suit, under appropriate circumstances, is available, Luckenbach S.S. Co. v. United States, 312 F.2d 545, 548 (2d Cir. 1963), as is injunctive relief, in advance of a threatened statutory violation. Swift & Co. v. United States, 276 U.S. 311, 326, 48 S. Ct. 311, 315, 72 L. Ed. 587 (1928). Indeed, section 103 of Landrum-Griffin, 29 U.S.C. § 413, provides that "Nothing contained in this subchapter shall limit the rights and remedies of any member of a labor organization under any State or Federal law or before any court . . . ." This section was intended to preserve preexisting federal remedies. See H.R. Rep. No. 741, 86th Cong., 1st Sess. (1959), I Legislative History of the Labor Management Reporting and Disclosure Act of ...