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July 18, 1969

John Sheridan, et al., Plaintiffs
Liquor Salesmen's Union, Local 2, et al., Defendants

Motley, D.J.

The opinion of the court was delivered by: MOTLEY


On June 9, 1969, plaintiffs, who are members of defendant local union, filed their complaint in this action. A first cause of action is predicated on § 301 of the Labor Management Relations Act of 1947, 29 U.S.C. § 185 (suits for violation of collective labor contract), and has nothing to do with the instant motions. *fn1" The second cause of action predicates jurisdiction on § 102 of the Labor Management Reporting and Disclosure Act of 1959 (LMRDA), 29 U.S.C. § 412, *fn2" and claims violations of § 101(a)(1)(2) of LMRDA, 29 U.S.C. § 411(a)(1)(2) (Bill of Rights) *fn3" and it is to this cause that the motions are addressed.

 On June 18, 1969, defendant local union and defendant local union officers noticed a union disciplinary hearing on amended charges (the original charges had been filed on June 2) against plaintiffs brought by two shop stewards. The hearing was to be on July 9, 1969, at 10:00 A.M.; however, immediately before that hour the court issued a temporary restraining order staying the hearing until plaintiffs' motions, including one for a preliminary injunction, could be determined but in any event for no more than ten days. Plaintiffs had brought their motions on for hearing on July 1, by order to show cause.

 The disciplinary charges against plaintiffs arise out of the publication of an article by the "Joint Salesmen's Committee" (JSC), a dissident group to which plaintiffs belong within the local, entitled "Happy Ending to a Bad Happening" in JSC's Newsletter in May 1969. The text is set out below. *fn4" The article is not a model of clarity to one uninitiated in the problems of the local, but apparently it refers to an employer having paid local members sales commissions on a "posted off price" as opposed to the "listed prices" in an alleged violation of the collective bargaining agreement. The article refers to the two shop stewards who now prefer charges as "Union Stooges", accusing them of doing nothing to rectify this claimed violation and of taking credit when JSC forced the employer to again pay commissions on listed prices.

 For this criticism, the shop stewards charge plaintiffs with three violations of the local and international constitutions: (1) attempting "to injure the interests of their fellow members by intending to undermine their employment and earnings"; (2) undermining the solidarity of the members, fostering dissension without just cause, and reflecting discredit upon the union in injury of its purposes by interfering with the performance of its legal and contractual obligations by sending these damaging and derogatory statements to employers and customers; and (3) "engaging in conduct unbecoming a union member" by communicating matters relating to the internal affairs of the union to the outside world. The thirteen specifications that follow simply make it clear that the article is the basis of all of these charges and that plaintiffs intended all this harm claimed.

 From the various papers submitted, it appears that plaintiffs intend to run for election to local union offices now held by defendants, and that plaintiffs are seeking through action in state courts to force a special membership meeting so that the local's constitution can be amended to provide for an early election (the next election is normally scheduled for January 1970). Plaintiffs claim maladministration of office on the part of defendants.

 Plaintiffs' second cause of action asks that defendants be enjoined from pressing and further processing in any way these disciplinary charges, which are claimed to violate the "free speech" sections of LMRDA. *fn5" Plaintiffs also allege that they have no fair union remedy because of the hostility of defendants and because "past performance" indicates much delay. Plaintiffs now move: (1) to "vacate" these disciplinary charges, citing 29 U.S.C. § 411(a)(2) and (5); (2) to "forbid" defendants from processing these charges because no fair hearing can be had, citing 29 U.S.C. § 411(a)(5); *fn6" and (3) in the alternative, to stay processing of the charges until the issues raised in the complaint can be resolved. The first two motions ask, in effect, for the relief demanded in the second cause of action of the complaint, and are, therefore, motions for summary judgment, Rule 56, Fed. R. Civ. P. The third motion is one for a preliminary injunction, Rule 65, Fed. R. Civ. P., in the event that the first two are denied. Defendants filed in court a cross motion to dismiss the second cause of action under Rule 12(b), Fed. R. Civ. P. *fn7"

 Summary judgment is not proper insofar as the second cause of action is based on 29 U.S.C. § 411(a)(5). There are factual issues involved in the determination of the fairness of the union disciplinary procedure, such as the existence of bias in individual defendants and the relationship of individual defendants to the disciplinary procedure.

 A preliminary injunction is likewise not proper insofar as the claims are based on § 411(a)(5). The court arguably has no jurisdiction under 29 U.S.C. § 412 *fn8" to hear a claim for injunctive relief alleging a violation of § 411(a)(5) prior to any discipline being imposed. Subsection (5) provides procedural rights to one "fined, suspended, expelled, or otherwise disciplined", and it may be that no right can be infringed within the meaning of § 412 until discipline has been imposed. Flaherty v. International Union, United Steelworkers of America, AFL-CIO, 41 Lab. Cas. (CCH) P16,517 (S.D. Cal., C.D., 1960). One District Court in this Circuit has recently disagreed, in effect, although no preliminary injunctive relief was asked, Tirino v. Local 164, Bartenders and Hotel and Restaurant Employees Union, 282 F. Supp. 809 (E.D.N.Y. 1968). At any rate, it is uncertain whether the court would have jurisdiction to enjoin a union disciplinary hearing from commencing in alleged violation of § 411(a)(5), and, since plaintiffs have no probability of success at trial on this theory, the denial of preliminary injunctive relief insofar as subsection 5 is proper, American Visuals Corp. v. Holland, 261 F.2d 652 (2d Cir. 1958).

 Plaintiffs' reliance on 29 U.S.C. § 411(a)(2) as a basis for his motions poses two questions: (1) is the article, upon which the disciplinary charges against plaintiffs are concededly founded, within the protection of § 411(a)(2), and (2) if so, may plaintiffs enjoin the commencement of any union disciplinary proceedings based on this article? The court finds that there is no genuine material issue of fact with respect to either of these questions, and that summary judgment is therefore proper for one of the parties, Rule 56, Fed. R. Civ. P.

 The first question is easily resolved. This Circuit has uniformly held that statements, such as plaintiffs published, concerning union affairs, including comments about the conduct of union officials, fall within the protection of § 411(a)(2), whether or not they are defamatory or malicious. Giordani v. Upholsterers International Union of North America, 403 F.2d 85 (2d Cir. 1968); Cole v. Hall, 339 F.2d 881 (2d Cir. 1965); Farowitz v. Associated Musicians of Greater New York, 330 F.2d 999 (2d Cir. 1964); Salzhandler v. Caputo, 316 F.2d 445 (2d Cir. 1963). Outside this Circuit, one court has even held that a threat may be protected if uttered in the proper context, Kelsey v. Philadelphia Local 8, International Alliance of Theatrical Stage Employees, 294 F. Supp. 1368 (E.D. Pa. 1968). "The LMRDA of 1959 was designed to protect the rights of union members to discuss freely and criticize the management of their unions and the conduct of their officers." Salzhandler v. Caputo, supra, at 449-450.

 Defendants attempt to bring the charges within the proviso to subsection 2, which allows unions to enforce reasonable rules as to the responsibility of a member to the organization as an institution and as to the prevention of interferences with the performance of union contracts and legal obligations, by claiming that the plaintiffs intended to interfere with current collective bargaining and create dissension at a time when unity was essential to negotiating new contracts. A similar argument was made in the Giordani case, supra, in which defendants had the added factor that the letter in question had referred to misappropriation of funds by the union generally. The Court of Appeals rejected the argument, noting that "[if] unions could discipline such speech on the ground that it weakened their power as an institution, this safeguard would be rendered entirely ephemeral and ineffectual." Supra, at 89-90. Similarly, in Salzhandler v. Caputo, supra, at 451, the court remarked to a claim such as defendants make: "The union argues that there is a public interest in promoting the monolithic character of unions in their dealings with employers. But the Congress weighed this factor and decided that the desirability of protecting the democratic process within the unions outweighs any possible weakening of unions in their dealings with employers which may result from the freer expression of opinions within the unions."

 The union, then, has no power to discipline plaintiffs on charges arising out of the publishing of this article. Must plaintiffs undergo the disciplinary hearing, nonetheless, in the hope that either the hearing panel or a union appellate panel will dismiss the charges? The principle of exhaustion of available union remedies is found within the LMRDA, Title I, as 29 U.S.C. § 411(a)(4). *fn9" This subsection has been held applicable to suits brought for any violations of rights claimed under § 411, Detroy v. American Guild of Variety Artists, 286 F.2d 75 (2d Cir. 1961), cert. denied, 366 U.S. 929, 6 L. Ed. 2d 388, 81 S. Ct. 1650.

 However, subsection (4) says only that a union member "may" be required to exhaust union remedies prior to suing the union. In Detroy, supra, at 78, the court held that it determines whether and when union remedies must be exhausted, and that " . . . the federal courts may develop their own principles regarding the time when ...

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