The opinion of the court was delivered by: FREEDMAN
This is a suit under the Labor-Management Reporting and Disclosure Act of 1959, popularly known as the Landrum-Griffin Act (29 U.S.C.A. § 401 et seq.). A motion by defendant to dismiss and for summary judgment before trial was denied by Judge Grim: Rekant v. Shochtay-Gasos Union, 194 F.Supp. 187 (E.D.Pa.1961). The case is now before us for decision after a full and lengthy trial, at which a number of additional defenses as well as those originally raised were earnestly pressed.
Plaintiff is a shochet, a kosher slaughterer. He is a member of the Union, and his membership has continued despite his controversy with it. His fellow members in the local Union are all shochtim.
The shochtim work in a few local slaughter houses which observe the ritual slaughtering requirements for kosher meat. The relationship among the shochtim is heavy with the flavor of the old world and is even reminiscent of medieval guilds. The senior shochtim seem to have a kind of ownership in their job rights with a particular slaughter house, which permits them to select the junior shoctim who are to work with them. The senior shochtim's 'rights' apparently are the subject of informal transfer and sale, somewhat like incorporeal hereditaments. In addition to the ordinary membership in a Union there is thus present here the fellowship of participation in a traditional activity. And it is an activity which is steeped in the pervasive element of the maintenance of a hallowed religious custom. Indeed, superimposed above the shochtim is the requirement that their work meet the approval of the Board of Orthodox Rabbis.
The Union holds meetings and keeps minutes.
Its proceedings indicate a fine regard for parliamentary procedure.
At a meeting of the Executive Board of the Union on November 22, 1959 a resolution was adopted that three days work would be shared each week with the plaintiff, who had just lost his job.
Here, in the formal act in the name of a Union are overtones of a religious or at least fraternal fellowship. But it is met by an insistence on the part of the plaintiff which indicates at least on his part a belief in a 'right' to such treatment. At any rate, the shochtim with whom the plaintiff was thus to share work, later felt that he had let them down because he failed to appear punctually and otherwise was unable to perform satisfactorily the work that was given to him. As a result there was brought before a general membership meeting of the Union on November 30, 1959 a resolution to withdraw the resolution of the Executive Board. Although it was fully debated, a vote on the resolution was postponed to a later meeting because of plaintiff's absence. At the regular meeting of the general membership on February 1, 1960 the plaintiff was present and the matter was again debated. If we may fill in the gaps between the lines of the Union minutes by recalling plaintiff's demeanor during the lengthy trial, we may readily believe that he made his views known with force and eloquence. He was not, however, given written specific charges or any time to prepare his defense. A resolution was adopted which rescinded the earlier one to share work with him.
Plaintiff claims that this resolution withdrawing the prior one to share work with him was a disciplinary action by a Union, effected without adequate prior notice and without specific written charges. He claims, therefore, that it constituted a denial of rights guaranteed by § 101(a)(5) of the Labor-Management Reporting and Disclosure Act (29 U.S.C.A. § 411(a)(5)). The section provides: 'No member of any labor organization may be fined, suspended, expelled, or otherwise disciplined except for nonpayment of dues by such organization or by any officer thereof unless such member has been (A) served with written specific charges; (B) given a reasonable time to prepare his defense; (C) afforded a full and fair hearing.' The remedy for the vindication of such rights is provided by § 102 of the Act: 'Any person whose rights secured by the provisions of this subchapter have been infringed by any violation of this subchapter may bring a civil action in a district court of the United States for such relief (including injunctions) as may be appropriate. * * *' (29 U.S.C.A. § 412.)
So there is brought before us the question whether these old-worldly practitioners of an ancient religious custom, in their dealing with one of their fellows violated an Act of Congress adopted to remedy widely recognized evils in trade union management.
In order for plaintiff to succeed (1) the action of which he complains must have been taken by the Union; (2) it must have been disciplinary in nature; (3) it must have been done without the required statutory notice; (4) plaintiff must have exhausted his internal union remedies; and (5) the jurisdiction of the National Labor Relations Board must not have pre-empted the jurisdiction of this Court.
We shall consider these problems separately.
Another aspect of the problem is whether the resolution of February 1, 1960 rescinding the earlier resolution to share work with plaintiff was the act of the Union itself or only of those individual members who were to share their work with him. The withdrawing resolution was adopted at a meeting of the Union membership. It might not have affected all the members because all of them might not have been called upon to share their work with plaintiff. But it potentially affected all the shochtim. It may and, indeed, appears to have been motivated to a substantial degree by feelings of fellowship and responsibility towards any one of their number who had lost employment. But there is not enough in these circumstances to justify our ignoring the fundamental nature of the decisions made. The resolution to share work was adopted after full debate among the members of the Executive Board. The subject of withdrawing the work-sharing resolution was postponed at the meeting of the Union held on November 30, 1959 because plaintiff was absent. At the subsequent meeting of February 1, 1960 the same resolution was presented, debated and approved by the vote of the Union membership itself.
The resolutions were recorded as acts of the Union. At the same Executive Board Meeting on November 22, 1959 another member's circumstances were reported and the minutes indicate that aid was considered in the form of taxing the members or by sharing work. (N.T. 248.) This again indicates collective, organized action. And the decisions regarding the plaintiff were taken in the language of Union action, albeit considerations of generosity motivated the members.
We hold, therefore, that the share-the-work resolution of November 22, 1959 was in fact as it was in form an act of the Union and that the subsequent resolution of February 1, 1960 rescinding it likewise was in fact as it was in form an act of the Union. To hold otherwise would be to declare that all who debated these resolutions, as recorded in the detailed minutes, were transacting individual business even while they were acting within the Union framework.
The Union also argues that the resolution was not a disciplinary act because it was no more than the withdrawal of an earlier resolution and, indeed, of a resolution not yet made final by approval of the general membership. We deal here, however, with substance and not with technicalities of form. The resolution of the Executive Board was in fact final; indeed, its finality is shown by its having been put into actual operation.
Whether the action was disciplinary in nature is to be determined by its practical effect. By the act of the Union, plaintiff lost his then existing right to share work. This was of immediate consequence to him, and it was a disciplinary act. Detroy v. American Guild of Variety Artists, 286 F.2d 75 (2d Cir. 1961) cert. denied 366 U.S. 929, 81 S. Ct. 1650, 6 L. Ed. 2d 388, affirming 189 F.Supp. 573 (S.D.N.Y.1960), where the Union's action in placing ...