Act for an action of removal of a union officer carries over to the restrictive condition that such person be barred from holding office for a period subsequent to his removal. It would follow as a logical syllogism that the removal of an officer from his union position would relegate him to the stature of a union member which would entitle him to the protective safeguards under the Landrum-Griffin Act of a union member. To bar a union member from holding office if nominated and elected is an unequivocal interference with rights of a union member which must invoke the provisions of the Act as they relate to union members.
Counsel for the defendants do not deny the right of plaintiff as a union member to seek office, to be nominated and elected, but contend that once elected he can be denied the right to hold office. Such superficial reasoning, in my judgment, is a sham and would have the plaintiff in his capacity as a union member do a vain thing, which is a violation of the purport and tenor of the Act. 29 U.S.C.A. § 411(a)(5).
Defendants rely on Hamilton v. Guinan, D.C., 199 F.Supp. 562, 49 L.R.R.N. 2356, to support the authority to deny office subsequent to an officer's removal for any extended period of time. I reject this view, believing as I do that such restriction can not be imposed arbitrarily and capriciously and must conform to the requirements of 29 U.S.C.A. § 411(a)(5).
The law is clear that one who moves for summary judgment has the burden of demonstrating that there is no genuine issue of fact to be gleaned from the pleadings, depositions, admissions on file and affidavits. Documents filed in support of motion for summary judgment are to be used to determine whether issues of fact exist, not to decide the fact issues themselves. Krieger v. Ownership Corp., 270 F.2d 265, 3rd Cir.
I am satisfied that a factual dispute exists as to whether plaintiff's denial of the right to hold union office for a period of five years from the date of his removal from office was arbitrarily and capriciously imposed in violation of 29 U.S.C.A. § 411(a)(5), and as it relates to this phase of the proceeding, defendants' motion for summary judgment will be refused.
By reason of the urgency of the question posed, involving a controlling question of law as to which there is substantial ground for difference of opinion, it is my judgment that an immediate appeal from the order to be entered may materially advance the ultimate termination of the litigation and I shall accordingly so certify pursuant to 28 U.S.C.A. § 1292(b); Milbert v. Bison Laboratories, 260 F.2d 431, 3rd Cir.
An appropriate order is entered.