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AXELROD v. STOLTZ

February 15, 1967

Sidney Axelrod
v.
Lawrence Stoltz et al., and Hotel, Motel and Club Employees' Union Local 568, AFL and Philadelphia Local Joint Executive Board of the International Union


Luongo, D.J.


The opinion of the court was delivered by: LUONGO

LUONGO, D.J.:

Plaintiff seeks a preliminary injunction to restrain defendants from denying to him rights guaranteed under Title I of the Labor-Management Reporting and Disclosure Act of 1959 (LMRDA), 29 U.S.C.A. §§ 411-415. Defendants are the Hotel, Motel and Club Employees' Union Local 568, AFL (Local), the president and the secretary of Local and the Philadelphia Local Joint Executive Board of the International Union (Joint Executive Board). The first three defendants have moved to dismiss the complaint under Rule F.R.Civ.P. 12, for lack of jurisdiction and for failure to state a claim upon which relief can be granted. No appearance has been entered on behalf of the Joint Executive Board, although service of process was made on January 11, 1967.

 Plaintiff alleges that unless he obtains injunctive relief he will be irreparably harmed in that he will be deprived of the rights guaranteed him as a union member to participate in union meetings, to vote for the election of officers, and otherwise to participate in union affairs, for which he cannot be adequately compensated in damages.

 The facts have been stipulated as follows:

 From 1947 until March 13, 1962, plaintiff was a member in good standing of Local, a "labor organization" within the meaning of Section 3(i) of the LMRDA, 29 U.S.C.A. § 402(i). On March 13, 1962, after charges brought against him, plaintiff was suspended by Local for a period of two years. *fn1" On October 24, 1963, during the suspension period, plaintiff applied to Local's executive board for reinstatement to membership. On December 9, 1963, plaintiff was advised that his application had been denied by Local's executive board and that the executive board's action had been approved by the general membership at a Local meeting. In the latter part of March or the first week in April 1964, after the expiration of the suspension period, plaintiff made tender of dues to Local. The tender was refused, and plaintiff was advised that he must make application for reinstatement. Thereafter, plaintiff applied for reinstatement and, on April 10, 1964, his application was rejected by Local's Examining Committee. *fn2" That rejection was approved by Local's executive board and, on June 10, by the membership. On August 28, 1964, plaintiff wrote to the president of the International Union reciting the circumstances of his suspension and the refusal of Local to reinstate him; plaintiff asked the president of the International to effect his reinstatement. The request was refused on September 8, 1964, on the ground that reinstatement could be accomplished only by the membership of Local. On September 28, 1964, plaintiff was again advised of the action of the Examining Committee refusing his application for reinstatement, and a $25 reinstatement deposit was returned to him.

 1. Jurisdiction.

 This court has jurisdiction of this matter under Section 102 of the LMRDA, 29 U.S.C.A. § 412:

 
"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."

 For purposes of determining whether it has jurisdiction, this court need only determine that there has been "the assertion of a substantial claim under a federal statute . . . even though [the] court may determine ultimately that no cause of action on which relief could have been granted was alleged." Hughes v. Local 11, Internat'l Ass'n of Bridge Workers, 287 F.2d 810, 814 (3d Cir.), cert. denied, 368 U.S. 829, 82 S. Ct. 51, 7 L. Ed. 2d 32 (1961). Plaintiff has alleged the denial of certain rights guaranteed "members" of a labor organization by section 101 of the LMRDA, 29 U.S.C.A. § 411. Such a claim clearly confers jurisdiction on this court. Whether in fact plaintiff is a "member" and thus qualifies for these rights goes to the issue of failure to state a claim upon which relief can be granted and not to the issue of jurisdiction. See Hughes v. Local 11, supra.

 2. Failure to State a Claim Upon Which Relief Can Be Granted.

 Most of the dispute here turns on whether plaintiff is a "member" or "member in good standing" as defined by the LMRDA. If plaintiff is a "member," it will be unnecessary to comment on most of defendants' contentions, for he will be entitled to the relief he seeks.

 Section 3(o) of the LMRDA, 29 U.S.C.A. § 402(o) provides:

 
"'Member' or 'member in good standing', when used in reference to a labor organization, includes any person who has fulfilled the requirements for membership in such organization, and who neither has voluntarily withdrawn from membership nor has been expelled or suspended from membership after appropriate proceedings consistent with lawful provisions of the by-laws of such organization."

 This section is not limited to those persons who are recognized as members by the organization. Instead, it provides equal rights and privileges to any person who has fulfilled the requirements of membership, i.e. those who are members in substance despite the fact that the union officials have not performed the ministerial acts necessary to give formal recognition to a person's status as a member. Hughes v. Local 11, supra 287 F.2d 810, 814-15. The Act does not set up its own requirements for membership; it recognizes the rights of unions to choose their own members. See Moynahan ...


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