the Union's interpretation of the resolution it meant, at the very least, that the act of generosity reflected in the earlier share-the-work resolution was now being revoked and plaintiff would no longer be its beneficiary. The Union's reason was that he had proven unworthy of generosity and, indeed, unable to perform his work in a reasonably adequate manner. But however justified the reason, it was revoked for what the Union considered proper cause and both sides viewed the action as closing off an area of employment that had been opened up for him.
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 plaintiff's name on an unfair list was held to constitute disciplinary action within the meaning of § 101(a)(5).
3. It is undisputed that plaintiff received no written specific charges of the conduct for which he was disciplined at the meeting of the general membership on February 1, 1960. In this the Union failed to comply with the statutory requirement.
While it may well be that a highly articulate and intelligent plaintiff fought against the resolution, nevertheless we have no right, without any factual warrant, to draw the unrealistic conclusion that the lack of notice of written specific charges and of a reasonable time to prepare his defense were of no moment to him. Indeed, the evidence is to the contrary. Plaintiff testified to a heated dispute at the meeting in which he took issue on some of the factual complaints made against him. (N.T. 52-53.) He testified that he had no opportunity to bring witnesses to support his denial at the meeting and had no chance to defend himself as he thought he might have done. (N.T. 52.) If, therefore, a factual finding of injury by the denial of the statutory right were a prerequisite to its maintenance we would unhesitatingly so find. However unintentional it may have been, plaintiff was denied what we may call statutory due process. This requirement would be frittered away if his mere attendance and participation at the meeting were to excuse its violation, without any showing that he had without notice put up his best defense. A 'bill of rights' provision requiring due process and manifestly based on high considerations of public policy intended to protect individuals from group oppression should not be deemed to be waived -- even if it could be waived -- without evidence, affirmative and clear, which would justify such a finding. There is no such evidence here.
We conclude, therefore, that plaintiff was 'otherwise disciplined' by the resolution of February 1, 1960 in violation of § 101(a)(5) of the Act.
4. Section 101(a)(4) contains a proviso that '* * * any such member may be required to exhaust reasonable hearing procedures (but not to exceed a four-month lapse of time) within such organization, before instituting legal or administrative proceedings against such organizations or any officer thereof * * *'.
The constitution of the International, which was applicable to the Local and was in effect on February 1, 1960, contained no provision for an appeal by a member from the decision of the general membership. It did provide for an appeal to the International Executive Board from the decision of the Local's Executive Board. The disciplinary action of February 1, 1960 was taken by the general membership of the Local and not by its Executive Board. The internal regulations of the Union therefore made no provision for an appeal. Nor was there a provision requiring exhaustion of remedies within the Union prior to any legal proceedings. Nevertheless, plaintiff did attempt to appeal. After some correspondence with the Secretary and later with the President of the International, plaintiff's attorney was informed by the President of the International that if he felt aggrieved he should file charges against the individual officer or member of the Local of whom he complained.
Clearly, therefore, plaintiff had no remedy available to him, yet he sought an appeal through the International's President and Secretary and was effectively denied it.
Defendant seeks to make applicable the provisions of a new constitution and by-laws adopted by the International some time in July 1960, effective July 1, 1960. We hold the provision of the new constitution and by-laws inapplicable because they were not in effect or, indeed, even adopted until more than four months after the disciplinary action was taken on February 1, 1960. Even if they could be made retrospectively applicable to the disciplinary action which had already been taken, the time which they prescribed for appeal had already gone by when they were adopted. Section 101(a)(4) indicates that four months is ample time within which a Union must provide internal relief. Here there was no relief provided the plaintiff by the Union's constitution and by-laws at the time the act of discipline was imposed, and it was more than four months thereafter that a prospective remedy was first established. The fact that plaintiff's suit was not brought until July 28, 1960, shortly after the new constitution went into effect, is of no significance. By that time his right to sue already existed. The Act makes it clear that even where remedies are available they must be sufficiently swift that no injustice will be done by requiring that they be exhausted before resort is had to outside relief, and the four months period expresses the Congressional view of what is a reasonable time.
5. We are led, then, to the fundamental question of the proper role of federal courts in an area in which Congress has hitherto manifested a clear intention that the national labor policy be defined and administered by the National Labor Relations Board.
Prior to the adoption of the Labor-Management Reporting and Disclosure Act of 1959, great difficulty was experienced in drawing the boundary line between the sovereign power of the individual States on the one hand and of the National Labor Relations Board in the enforcement of a nationwide labor policy, on the other.
The question before us is a narrower one. It concerns two organs of the same sovereign power: the federal courts and the federal administrative agency. Presumably, with full knowledge of the decisions of the Supreme Court, Congress expressly conferred upon federal district courts the authority to vindicate in '* * * a civil action * * * for such relief (including injunctions) as may be appropriate', the 'bill of rights' provisions by which it guaranteed to all union members the right to receive specific written charges, a reasonable time to prepare a defense, and a full and fair hearing, before the imposition of an act of discipline. It may be that Congress considered interference with administrative expertise to be less of an evil where the interposing tribunal is a federal court rather than a state court because of the single nationwide federal sovereignty. Manifestly there would still be lost at least a substantial part of the advantage of having the national labor policy worked out by an expert administrative agency.
The conflict between the provision of the judicial remedy and the policy which favors the use of the expert administrative agency is sharpened by the facts before us. After the disciplinary act of February 1, 1960, plaintiff on May 19, 1960, filed a charge against the Union with the National Labor Relations Board (Exhibit D-1). Therein he complained that following the resolution of February 1, 1960 the Union had failed to send him out on jobs. He complained also of other conduct of the Union which affected his seniority rights. But he made no complaint of the violation of statutory due process. On July 29, 1960 the Regional Director refused to issue a complaint 'because there was insufficient evidence of violation' of § 8 of the National Labor Relations Act, as amended, 29 U.S.C.A. § 158. (Exhibit D-2.) From this decision plaintiff appealed to the office of the General Counsel of the National Labor Relations Board, which on October 4, 1960, sustained the ruling of the Regional Director. (Exhibit D-4.) Since no charge of violation of statutory due process was made or considered by the Board we have at the most a ruling of the administrative agency that plaintiff had failed to establish by evidence a charge of discrimination in employment. It is precisely what the Board decided that is not within the jurisdiction of this Court, and it is precisely what the Board did not decide and was not even called upon to decide and is expressly made the subject of the jurisdiction of this Court.
In these circumstances to hold that the federal courts have no jurisdiction to vindicate the procedural due process guaranteed by the 'bill of rights' title of the Act would be to destroy a Congressional provision deliberately taken to meet what Congress deemed to be substantial evils. To meet these evils § 101(a) (5) was adopted, and by it Congress created a new, substantive right.
This is a federal right which was not within the competence of the National Labor Relations Board even in regard to unfair labor practices by a union against its own members.11a For the National Labor Management Relations Act of 1947, popularly known as the Taft-Hartley Act (29 U.S.C.A. § 141 et seq.), which for the first time made unions subject to proceedings before the Board for unfair labor practices against their members is limited to discrimination in employment. (See § 8(a)(3)(ii)(B); § 8(b)(2); 29 U.S.C.A. § 158.) The new right, outside the province of the National Labor Relations Board, Congress expressly commanded by § 102 should be vindicated in the federal courts.
We do not consider the saving provisions of § 103 of the Act (29 U.S.C.A. § 413) as limiting the power conferred on federal courts by § 102 (29 U.S.C.A. § 412). On the contrary, § 103 clearly is intended to preserve rights or remedies theretofore inhering in a union member. This would make it clear that the rights and remedies provided by the Act are in addition to any which may theretofore have existed in favor of a union member, whether before a state or federal court or an administrative agency. By providing that theretofore existing rights and remedies were to be preserved Congress made the new statutory remedies cumulative in such circumstances. Where the new remedies were provided for newly-created substantive rights, no problem of conflict of remedies arises, and if the new remedies are not available the rights themselves are unenforceable. We may not say that even as it wrote § 101, creating the rights, and § 102, providing the remedies to vindicate them, Congress intended in § 103 to wipe them out.
We arrive then at the last consideration. Plaintiff is entitled to an injunction reinstating the status quo as it existed before the resolution of February 1, 1960 rescinding the earlier resolution to share work. But he is not satisfied with this. He seeks in addition damages for the loss of wages which he claims he would have earned if the rescinding resolution had not been adopted. We believe he seeks too much.
It is very clear from the record that plaintiff was a difficult member of the Union and an unsatisfactory employee. He luxuriated in controversy and warmed to strife. He taxed the patience of some of his fellow members to the point of despairing incomprehension. All this was visibly manifested during the trial. Although he viewed every unfavorable event as the shadow of a malign purpose, his own testimony justifies the conclusion that he is not competent to perform some of the more difficult work of a shochet. (N.T. 122.) He was, indeed, originally a poultry shochet, apparently a simpler form of slaughtering. (N.T. 4, 10, 13.) On a number of occasions when work was offered to him, he refused to take it. The record of his employment has more than one instance of loss of work for alleged incompetence or unsatisfactory performance. (N.T. 124, 314, 333.) It is clear beyond substantial dispute that his work was not satisfactory to his employers.
We are led to the conclusion on a review of all of the evidence that although due process was denied plaintiff, he would not have obtained any other work beyond what was offered to him, even if the rescinding resolution had not been adopted. He would not have obtained it because his potential employers would not have accepted him as their employee. It is plaintiff who seeks damages. The clear burden was upon him to prove damages. We are not satisfied that he has sustained the burden. Hence we award him only nominal damages.
The statements of facts and of law in the foregoing Opinion shall be deemed to be findings of fact and conclusions of law. In addition we affirm plaintiff's requests for findings of fact nos. 2, 14, 15, 16 and 17, and plaintiff's requests for conclusions of law nos. 1, 2, 3, 4 and 7. We affirm defendant's requests for findings of fact nos. 1, 2, 4-6, incl., 8-15, incl., 22, 24-33, incl., and requests for conclusions of law nos. 1, 2 and 17.
All other requests by either party, to the extent that they have been implicitly affirmed in the course of the foregoing Opinion, are hereby affirmed; all other requests are severally denied.
AND NOW, May 22, 1962, the resolution of the defendant, Shochtay-Gasos Union, Local 446 of the Amalgamated Meat Cutters and Butcher Workmen of North America, adopted on February 1, 1960, rescinding the resolution of November 22, 1959, to share work with plaintiff is declared null and void for want of written specific charges and a reasonable time to prepare his defense, and defendant, Shochtay-Gasos Union, Local 446 of the Amalgamated Meat Cutters and Butcher Workmen of North America, its officers, members, agents and employees, are enjoined and prohibited from doing or failing to do any act in reliance upon the rescinding resolution of February 1, 1960; and damages are awarded in favor of plaintiff and against defendant in the nominal amount of 6 cents.