Before MCLAUGHLIN and GANEY, Circuit Judges and COHEN, District Judge.
MCLAUGHLIN, C. J.: Appellant appeals from the judgment of the district court finding that it had violated Section 101(a)(5) of the Labor-Management Reporting and Disclosure Act of 1959*fn1 (LMRDA) and awarding nominal damages in favor of appellee.
Appellant is a labor union affiliated with the Amalgamated Meat Cutters and Butcher Workmen of North America. It has approximately twenty-three members, all of whom are shochtim (kosher slaughterers) who work in the handful of Philadelphia meat packing firms that slaughter meat in accordance with the laws of the Jewish religion. Appellee, a member of this union, had been employed as a cattle shochet in a small slaughter house when, in November of 1959, his employer went out of business, leaving him with no job. Subsequently, appellee appeared at an executive board meeting of the union on November 22 and "requested for a job", evidently believing that he had a "right" to be given work. At any rate, there is evidence of a past practice of making available temporary replacement work to a union member in a situation similar to that of appellee. The replacement work is arranged by the members of the union giving up, in turn, a day's work to their less fortunate colleague; the number of days of replacement work per week may vary, depending on such factors as his need and the strength of the job market. The replacement is paid for his day's work by the man whose job he has taken. The union's president testified that such work arrangements are temporary, stop-gap measures designed for a "short time to help out and then the situations straightened itself out by itself" - i.e., the member secures permanent employment.
At the meeting of November 22 the cases of appellee and another unemployed member were considered by the executive board and after much heated debate appellee's request was granted. A resolution was adopted obligating the shochtim members to give up a total of three days of work per week to appellee.*fn2 The president, Rabinowitz, had the responsibility of selecting those who would give their work day for appellee. The following week, at a general meeting of the union, a resolution was proposed to withdraw the November 22nd resolution for failure of appellee to appear at work punctually and otherwise satisfactorily perform his duties. Although this recommendation was fully discussed, no vote was taken because appellee was not present. Accordingly, at a later general meeting on February 1, 1960, at which appellee was present, the matter was again debated and a resolution rescinding the November 22 one was adopted.*fn3
Appellant does not contest the fact that it did not give appellee written specific charges or any time to prepare his defense to the proposed union action at the February meeting.
Appellee's claim against his union is framed on the sole, narrow question of whether the rescinding resolution of February 1, 1960 constituted disciplinary action by a union within the meaning of Section 101(a)(5)*fn4 and thus was a denial of the rights guaranteed to him by this section because effected without written specific charges and a reasonable time for preparation of a defense. The court below held that appellee had been "disciplined" in violation of his Title I rights,*fn5 declared the February resolution null and void and awarded nominal damages to appellee.
The main argument pressed by appellant is that the jurisdiction of the district court was preempted by the jurisdiction of the National Labor Relations Board (Board). Appellant submits that what appellee has alleged and testified to in this case amounts to an unfair labor practice, or at the very least is "arguably" subject to the provisions of the Labor Management Relations Act (Taft-Hartley)*fn6 and thus under the line of cases starting with San Diego Building Trades Council v. Garmon, 359 U.S. 236, 245 (1959) exclusive primary jurisdiction is in the Board.
Appellant points to the fact that, prior to instituting the present suit, appellee filed unfair labor practice charges with the Board alleging violation of 8(b)(1) and (b)(2).*fn7 The Regional Director refused to issue a complaint because there was "insufficient evidence" of violation of the Act, and that decision was affirmed on the appeal to the General Counsel.
It is not necessary to detail the other objections which appellant raises to this phase of the district court's opinion, for its initial premise that the substance of the charges before the Board and the district court is identical is erroneous. Appellee's complaint to the Board was twofold.*fn8 First, he alleged that by virtue of the "hiring hall type arrangements" which the union has with the slaughter houses the union is able to control his employment; this arrangement with the employers "amounts to more than mere coercion of employers to discriminate in their hiring practices against one who is out of favor of the union officers - because of the hiring hall type arrangements it is absolute assurance that such discrimination will result"; the rescinding resolution of February 1, 1960 is a manifestation of his "falling out" with the union and consequent denial of work. Second, appellee charged that "the Union practice of hiring and of buying and selling jobs constitutes an unfair labor practice," for the senior shochet*fn9 "in any given slaughter house completely controls the lot of the junior shochtim appellee" and "his control is not modified or inhibited" by the existence of any federal labor legislation or the collective bargaining agreement in effect between the union and the slaughter house.
It is readily apparent that these charges are totally different from the conduct complained of here and they do not present the problem of a possible conflict between the exercise of Board jurisdiction and that of the district court. As we noted at the outset, we are concerned with the narrow question of whether appellee has been "disciplined" by his union within the meaning of Section 101(a)(5). In this posture of the case we need not reach the broader claims of employer-union discrimination and illegal union activity raised before the Board. And by the express terms of Section 102, 29 U.S.C. § 412, "any person whose rights secured by this subchapter have been infringed by any violation of Section 101 (a)(5) may bring a civil action in a district court for such relief (including injunctions) as may be appropriate."
Even assuming that there might be elements of this case arguably subject to Sections 7 or 8 of the Taft-Hartley Act affords no basis for ousting the jurisdiction of the district court. A similar argument was presented to the Supreme Court in Int'l Assn. of Machinists v. Gonzales, 356 U.S. 617 (1958), where a former union member, allegedly expelled from his union in violation of his rights under the union constitution and by-laws, sued in a state court for reinstatement and damages. The case was brought to the Supreme Court on the question of whether exclusive jurisdiction in this type of case was in the Board. The Court stated, 356 U.S. at 619-20:
"Since we deal with implications to be drawn from the Taft-Hartley Act for the avoidance of conflicts between enforcement of federal policy by the National Labor Relations Board and the exertion of state power, it might be abstractly justifiable, as a matter of wooden logic, to suggest that an action in a state court by a member of a union for restoration of his membership rights is precluded. In such a suit there may be embedded circumstances that could constitute an unfair labor practice under § 8(b)(2) of the Act.In the judgment of the Board, expulsion from a union taken in connection with other circumstances established in a particular case, might constitute an attempt to cause an employer to 'discriminate against an employee with respect to whom membership in an organization has been denied or terminated on some ground other than his failure to tender the periodic dues and initiation fees uniformly required as a condition of acquiring or retaining membership * * *' 61 Stat. 141, 29 U.S.C. § 158(b)(2). But the protection of union members in their rights as members from arbitrary conduct by unions and union officers has not been undertaken by federal law, and indeed the assertion of any such power has been expressly denied * * * Thus, to preclude a state court from exerting its traditional jurisdiction to determine and enforce the rights of union membership would in many cases leave an unjustly ousted member without remedy for the restoration of his important rights. Such a drastic result, on the remote possibility of some entanglement with the Board's enforcement of the national policy, would require a more compelling indication of congressional will than can be found in the interstices of the Taft-Hartley Act."
Congress, in enacting Section 102, has now expressly provided for the federal protection and enforcement of a union member's right to be free from certain arbitrary conduct of his union.*fn10 The explicit Congressional declaration and the reasoning, in an analogous situation, of the Supreme Court in Gonzales, establish that the district court is competent to retain jurisdiction of a Section 101(a)(5) suit even when elements of the case are arguably subject to the Board's jurisdiction. "The fact that the Act preserves to union members all remedies 'under any State or Federal law or before any court or other tribunal * * *,' § 103 of the LMRDA, 29 U.S.C. § 413 * * * only means that the new federal protection was superimposed on protection already available in other forums, 'reinforcing and not supplanting it.' Summers, 'The Law of Union Discipline: What the Courts do in Fact', 70 Yale L. J. 175, 176 (1960)." Parks v. IBEW, 314 F.2d 886, 922 (4 Cir. 1963).
Appellant's reliance on the cases of Rinker v. Amalgamated Lithographers of Am ., 201 F. Supp. 204 (W. D. Pa. 1962), and Baker v. Shopmen's Local, 403 Pa. 31 (1961) is misplaced. In Rinker, the plaintiff union member filed a complaint in two counts. In the first count, directed against the union, he alleged that he was expelled from union membership in violation of the procedural safeguards of Section 101(a)(5). The second count, directed against both the union and his employer, alleged that by virtue of a conspiracy between the defendants he was fired from his job. It was precisely because of the failure of the district court to adjudicate the parties' rights and liabilities under count one, that this court dismissed plaintiff's appeal from the district court's determination as to the second count. 312 F.2d 271 (3 Cir. 1963). The language in the district court's opinion which appellant relies on is in reference to the employer-union conspiracy charge and has no application to plaintiff's, as yet ...