The opinion of the court was delivered by: PLATT
This is an action by plaintiff, Nathan Nass, to permanently enjoin the defendant, Local 348, Warehouse Production, Sales and Services Employees from discharging him from union office pursuant to the direction of defendant, Ray Marshall, Secretary of the United States Department of Labor. Jurisdiction is predicated on the Labor-Management Reporting and Disclosure Act of 1959, 29 U.S.C. §§ 401-531. Plaintiff has moved for a preliminary injunction barring his dismissal. Defendant Marshall has cross-moved pursuant to Fed.R.Civ.P. 56 for summary judgment dismissing the complaint on the merits. Defendant Local 348 has filed briefs and affidavits in support of the position of the plaintiff in both motions.
Plaintiff has been employed as Secretary-Treasurer of the defendant union since he was first elected to the post in October 1966. In 1975 plaintiff was indicted in the Supreme Court of the State of New York, County of New York, for, inter alia, Grand Larceny by means of Extortion (Indictment 5616/75) and Conspiracy to Commit Labor Bribery (Indictment 5617/75). On February 24, 1978, plaintiff pleaded guilty to Indictment 5617/75 in satisfaction of all charges against him. On March 28, 1978, plaintiff was sentenced to pay a fine of $ 500.00 and was simultaneously granted a certificate of relief from civil disabilities under New York Correction Law § 701 (McKinney 1972).
In November 1978, the United States Department of Justice advised plaintiff and the defendant union that in view of plaintiff's conviction for conspiracy to commit labor bribery, he was no longer able to hold union office by virtue of 29 U.S.C. § 504. That section, set forth more fully below, bars the holding of union office by one who has been convicted of a crime involving misuse of union office.
In June 1979, plaintiff commenced this action and, by notice of motion dated June 21, 1979, sought a preliminary injunction against his discharge. In view of the fact that plaintiff had filed an appeal of his conviction with the Appellate Division, First Department, of the Supreme Court of the State of New York, and that plaintiff had not yet received official notice of termination, this Court denied the motion without prejudice to renew. Plaintiff's appeal was dismissed by the Appellate Division on February 14, 1980. On August 13, 1980, the defendant union notified plaintiff that he would be terminated. In light of these developments, plaintiff now renews his complaint and application for an injunction.
The sole question for determination in this matter is whether the certificate of relief from civil disabilities issued under New York Correction Law § 701 by the State court judge at the time plaintiff was sentenced on the criminal charges bars the application to plaintiff of 29 U.S.C. § 504.*
29 U.S.C. § 504 bars from union office all persons who have
... been convicted of, or served any part of a prison term resulting from his conviction of, robbery, bribery, extortion, embezzlement, grand larceny, burglary, arson, violation of narcotics laws, murder, rape, assault with intent to kill, assault which inflicts grievous bodily injury, or a violation of subchapter III or IV of this chapter, or conspiracy to commit any such crimes, ...
(for) five years after such conviction or after the end of such imprisonment, unless prior to the end of such five-year period, in the case of a person so convicted or imprisoned, (A) his citizenship rights, having been revoked as a result of such conviction, have been fully restored, or (B) the Board of Parole of the United States Department of Justice determines that such person's service in any capacity referred to in clause (1) or (2) would not be contrary to the purposes of this chapter. Prior to making any such determination the Board shall hold an administrative hearing and shall give notice of such proceeding by certified mail to the State, county, and Federal prosecuting officials in the jurisdiction or jurisdictions in which such person was convicted. The Board's determination in any such proceeding shall be final. No labor organization or officer thereof shall knowingly permit any person to assume or hold any office or paid position in violation of this subsection.
New York Correction Law § 701 provides:
1. A certificate of relief from disabilities may be granted as provided in this article to relieve a first offender of any forfeiture or disability, or to remove any bar to his employment, automatically imposed by law by reason of his conviction of the crime or of the offense specified therein. Such certificate may be limited to one or more enumerated forfeitures, disabilities or bars, or may relieve the first offender of all forfeitures, disabilities and bars. Provided, however, that no such certificate shall apply, or be construed so as to apply, to the right of such person to retain or to be eligible for public office.
2. Notwithstanding any other provision of law, a conviction of a crime or of an offense specified in a certificate of relief from disabilities shall not cause automatic forfeiture of any license, permit, employment or franchise, including the right to register for or vote at an election, or automatic forfeiture of any other right or privilege, held by the first offender and covered by the certificate. Nor shall such conviction be deemed to be a conviction within the meaning of any provision of law that imposes, by reason of a conviction, a bar to any employment, a ...