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MATTER HAROLD PHALEN ET AL. v. THEATRICAL PROTECTIVE UNION NO. 1 (05/15/68)

COURT OF APPEALS OF NEW YORK 1968.NY.41635 <http://www.versuslaw.com>; 238 N.E.2d 295; 22 N.Y.2d 34 decided: May 15, 1968. IN THE MATTER OF HAROLD PHALEN ET AL., APPELLANTS,v.THEATRICAL PROTECTIVE UNION NO. 1, INTERNATIONAL ALLIANCE OF THEATRICAL AND STAGE EMPLOYEES, A.F.L.-C.I.O., RESPONDENT Matter of Phalen v. Theatrical Protective Union No. 1, 27 A.D.2d 909, reversed. Counsel Maurice Rosenberg and Solomon D. Monshine for appellants. Louis Kantor and Harold P. Spivak for respondent. Judges Scileppi, Bergan, Keating, Breitel and Jasen concur with Judge Burke; Chief Judge Fuld concurs in a separate opinion in which Judges Bergan and Jasen concur. Author: Burke


Matter of Phalen v. Theatrical Protective Union No. 1, 27 A.D.2d 909, reversed.

Judges Scileppi, Bergan, Keating, Breitel and Jasen concur with Judge Burke; Chief Judge Fuld concurs in a separate opinion in which Judges Bergan and Jasen concur.

Author: Burke

 On this appeal we are called upon to consider two problems, first, our jurisdiction, in the face of a claim of Federal pre-emption, to afford relief to working people who have been unfairly and discriminatorily treated by a labor union which is their exclusive bargaining agent with their employer, and, second, what remedies, assuming we have jurisdiction to afford any relief at all, are available to such aggrieved employees.

Petitioners-appellants in this article 78 proceeding, seeking an order in the nature of mandamus directing respondent Theatrical Protective Union No. 1, the sole bargaining agent for stage hands and stage maintenance men in New York and Bronx Counties, to admit them to membership in respondent, have brought charges against this union which, if true, would be violative of law. Petitioners allege in their petition that for many years past each of them has been employed either as a stage hand or stage maintenance man at theatres within this union's jurisdiction. They are not members of the union, and as a result of such non-membership, according to their petition, they have had difficulty in obtaining employment and have at the instance of respondent been summarily dismissed from jobs they have succeeded in obtaining and have been replaced in these jobs by union members. Petitioners Phalen and Amador claim further that, as a result of the union's actions in having them discharged and replaced by union members, their earnings for 1965 from employers contributing to the pension fund maintained by the union fell below $4,000, the amount required to maintain eligibility in the pension plan. Petitioners also complain that they were required by the union to pay 4% of their earnings to the union. These payments, they assert, went into a union fund which benefited only members of the union. Petitioners claim to have made repeated applications for membership in the respondent union, all to no avail. In his supporting affidavit petitioner Phalen charges that union membership may be obtained only through being proposed by a member of the union and that petitioners are unable to obtain such sponsorship, as this is "generally exercised in favor of sons or relatives [of members]."

At Special Term of the Supreme Court, Bronx County, the petitioners, relying on their petition and supporting affidavits, moved for an order directing respondent to admit them to membership, and the union cross-moved to dismiss their petition, on the grounds that (1) there was no authority for such a proceeding, (2) the court was without jurisdiction to entertain it, (3) the petition did not state facts sufficient to entitle petitioners to the relief sought, and (4) the proceeding was untimely under CPLR 217 (which latter contention is not pressed on this appeal). Special Term denied the cross motion of respondent and, despite its recognition that its action was unprecedented in this State, granted petitioners' motion unless the respondent should serve and file an answer to the petition within 10 days. No answer was filed and an order directing respondent to admit petitioners to membership was entered against respondent. On appeal to the Appellate Division, First Department, that court, with two Justices dissenting on the opinion of Special Term, reversed and granted respondent's cross motion to dismiss the petition, on the ground that, "according to an unbroken line of precedents * * * in this State" "[in] the absence of a violation of a statutory duty, an article 78 proceeding for mandamus does not lie." As a further ground of decision the court also pointed out that petitioners' grievances were "arguably within the ambit of the National Labor Relations Act," indicating, apparently, the court's view that under the doctrine of Federal pre-emption as enunciated in San Diego Unions v. Garmon (359 U.S. 236) this controversy was within the exclusive jurisdiction of the National Labor Relations Board (NLRB).

We are in agreement with the majority below that mandamus will not lie under the circumstances of this case, but we are also of the opinion that our courts are not ousted of jurisdiction over the present controversy under the Federal pre-emption doctrine and that, while petitioners were not entitled to bring their action in the form in which it was brought or to the relief requested, they did on their pleadings and proof, if unanswered, make out a case for injunctive relief of a lesser order and, therefore, their petition should not have been dismissed, but, rather, an order should have been entered allowing them to proceed with their action in the form of an ordinary action in equity.

I

Turning first to the argument that, because petitioners' grievances are "arguably subject to § 7 or § 8 of the [National Labor Relations] Act, the States as well as the federal courts must defer to the exclusive competence of the National Labor Relations Board" (see San Diego Unions v. Garmon, supra, p. 245), we are of the opinion that under the recent decisions of the United States Supreme Court in Vaca v. Sipes (386 U.S. 171) and Mangus v. A. C. E. Freight, Inc. (386 U.S. 482, decided in a brief Per Curiam opinion under the authority of Vaca v. Sipes but reported below at 6 Ohio App. 2d 87 [Ct. of App. of Ohio]), considerably limiting Garmon's seemingly absolute ban on courts' exercising jurisdiction over controversies "arguably subject to § 7 or § 8 of the Act" (see, especially, Mr. Justice White's opinion for the court in Vaca v. Sipes, supra, p. 179, and Mr. Justice Fortas' concurring opn., p. 199), our courts may exercise jurisdiction over the instant controversy.

As we read this petition it charges the respondent labor union with violation of its Federal statutory obligation under the National Labor Relations Act "to serve the interests of all members [of bargaining units for which it is exclusive bargaining agent] without hostility or discrimination toward any" (Vaca v. Sipes, supra, p. 177). In a series of decisions going back over many years the United States Supreme Court has recognized this duty of unions and the right of employees to obtain enforcement of the union's obligation of fair representation in the courts (see authorities cited in Vaca v. Sipes, supra, p. 177), and in Vaca v. Sipes we are told that, just because the NLRB belatedly recognized that unfair representation could be interpreted as an unfair labor practice in violation of section 8 (subd. [b]) of the act (see Miranda Fuel Co., 140 N. L. R. B. 181 [1962]), the courts are not ousted of their jurisdiction in this field. In line with Vaca v. Sipes, the reasoning of which we believe is applicable here, we are of the opinion that our courts have jurisdiction to entertain this action.

II

A finding that our courts may exercise jurisdiction over the instant controversy does not, of course, mean that petitioners were entitled to the relief requested or to prosecute their action in the form in which it was brought. The relief sought here is, as both courts below have recognized, unprecedented in this State, and, while we would be prepared, despite this, upon proper pleadings and proof to uphold an order compelling a labor union to accept into membership members of a bargaining unit represented exclusively by that union, where such relief was the only means by which unfairly represented employees could be assured of nondiscriminatory representation, petitioners have not made such a showing. In addition, we are also of the opinion that, even if petitioners were entitled to an order directing the respondent to admit them to membership, the extraordinary remedy of mandamus is not the proper means by which such relief should be sought, and, on this latter point, we would only note that unincorporated labor unions are not the sort of bodies against whom mandamus traditionally lies (see People ex rel. Solomon v. Brotherhood of Painters, 218 N. Y. 115; see, also, 8 Weinstein-Korn-Miller, N. Y. Civ. Prac., par. 7802.01) and, as the very same relief could be obtained in an ordinary action in equity for a mandatory injunction directing respondent to admit petitioners to membership*fn* there is no need to consider broadening the traditional scope of the writ of mandamus to include this type of situation (cf. People ex rel. Solomon v. Brotherhood of Painters, supra, p. 122; see, also, Matter of Coombs v. Edwards, 280 N. Y. 361, 364).

The gravamen of the instant petition and of the affidavits submitted in support of it is not that petitioners are per se injured through non-membership in respondent or that they would not be perfectly satisfied to work under the collective bargaining agreements negotiated with the various theatres by respondent, if only they could be assured of equal opportunity for work, but that they have suffered economic injury through the illegal acts of the union in persuading employers to discriminate against them and in exacting tribute from them. These are unquestionably serious grievances but, as far as appears from this record, they might well be remedied through an action in equity in which the court could enjoin the continuance of such conduct and award incidental damages for past injuries. Under these circumstances the drastic remedy of compelling respondent to admit petitioners to membership, a measure at variance with the announced legislative policy of this State, which provides, with only limited exceptions (see Civil Rights Law, § 43; see, also, Gaynor v. Rockefeller, 15 N.Y.2d 120, 132-133), that labor organizations should enjoy "full freedom of association" (see Labor Law, § 700), seems uncalled for. It may, of course, develop that a court could properly find that a particular labor organization had, through a course of conduct evidencing flagrant and persistent disregard for the rights and interests of nonmembers represented by it, forfeited any legitimate claim to the right to continue to restrict its membership. But no such showing has been made here, and without such a showing we are unprepared, in the absence of legislation on the order of section 43 of our Civil Rights Law, which bars denial of membership in labor organizations on grounds of race, creed, color or national origin, to hold that labor organizations must open their membership to persons whom they would rather not admit to their company.

III

Our determination that petitioners have prosecuted their action in an improper form and requested relief to which they are not entitled does not, however, serve to put them out of court. The improper form in which their action has been brought and their failure to request the appropriate relief is not a bar to their receiving whatever relief they may be entitled to. CPLR 103 (subd. [c]) provides that once a court has obtained jurisdiction over the parties in a "civil judicial proceeding" the proceeding "shall not be dismissed solely because it is not brought in the proper form, but the court shall make whatever order is required for its proper prosecution", and CPLR 105 (subd. [d]), which defines "civil judicial proceeding", is clearly broad enough to include the instant proceeding, defining a "civil judicial proceeding" as a "prosecution, other than a criminal action, of an independent application to a court for relief." Similarly, CPLR 3017 (subd. [a]) provides, in part, that a court "may ...


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