Brief in Opposition to Petition for Writ of Certiorari — Theatrical Protective Union No. 1 v. Phalen

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3

. I dessen Gourt, U.S,

REME COURT. u. &- LT

: pm ‘Court uf tie 2 Ante States

_ October Tera ih

é . 61%

_ THEATRICAL PROTECTIVE UNION NO. 1, INTER.

NATIONAL ALLIANCE OF THEATRICAL AND’

STAGE — a AF. L. O.. O., *

: nie Petitioner,

} v. . 8 :

HAROLD PHALEN, STEPHEN AMADOR and

| HARRY RYAN. 5

: i ‘ 5

BRIEF IN OPPOSITION TO PETITION FOR A

WRIT OF CERTIORARI

5 Sotomon D. MoxsRHI xn,

1 Attorneꝝ for Harold Phalen, Stephen

1 ies 7 Amador and Harry Ryan,

fat 44 225 Broadway,

4 Ne York, N. T. 10007. i

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Statement of the Case W ee

‘Summary of Argument. JJCCJJVVTVVT ae

Question Presented 5 8 N 1 a :

L The Union has violated ad rights by pte

-unjustifiably barring them from membership &

a Having shown injury. to n rights, }

_ petitioners are entitled to due relief ........’. .

III. The state courts are not rendered in competent 5

„ by the e r ee: doctrine ....... ne oy 18 ——

Conclveron 1 „ — . — .

. Cas Cit j ue

Blende v. Maricopa Céanty Medical Society, 96 oe

. Ariz. 240, 393 P. 2d 926 (1964) 11

Matter of Brenner v. O’Connell, 308 N. V. 636, 17

N. X. d 715 (19566) 3 „„ 8

4

Matter of. Brown v. MeGinnia, 10 N. v. 2d sa, 225 H,

5 N. V. S. 2d 497, 1% N. n CED 5 „

Matter of Caruci v. Dulan, 41 Mise. 2d 859, 246 |

V» N.Y. S. 2d 727 (Sup. Ct: 1964), rev d on other

grounds, 24 A. D. 2d 529, 261 N. V. 8, 2d 677 ae

| . 27·ũ⸗2(-̃355*cé„%∘ 7 17

9 eG Gace

„ f

. ga 5

8 2

Matter of Council v. Donovan, 40 Misc. 2d 74⁴¹ 24 8

N. V. 1 2d 199 (Sup. Ct. * e *

Matter of Deets of Rechester’ v. ee Suit

ok Brighton, 1 N. v. 2d 508, 154 N. V. S. 2d 849,

196 N. E. 20 827 (1956 sess, .

Fedecns- vr Middlesex. ‘County. Medion! 6 34

— N. J. 582, 170 K. 2d 791 (1961) ....... 5 469,10

Firestone v. First District: Dental Society, 24 ~~ v. =

224 268, 268. N. V. S. 2d 5265. (1st Dept. 1965) . es

Green v. Folks, 13 A. D. 2d 744, 215 N. V. 8. 2d

116 (Ist Dept: 1961) „VVV N 19

James v. Marinship Corp, 25 Cal. 2d 721, 155. p. ; ae

c eee —ͤ—ͤ eevee 10

Kronen v. Pacific Coast Society of Orthodontists,

Be Cal. App. 2d 389, 46 Cal. mr 808 (Ist

| Re ² AAA T 11

K v. Medical Society of Queens, 3 Misc. 2d

790, 260 N. V. S. 2d 520 (1965) revd, on other

aa 859

(2d Dept. 1965) ........ . . 3

Matter of Mandle v. Brown, 5 N. yz. oe 51, 177

N. Y. S. 2d 482, 152 N. E. 2d 511 (1958) ‘17

Matter of Mancuso v. New York State e |

Retirement System, 42 Mise.-2d 261, 247 N. Y. 8:

2d 956 (Sup. Ct. 164) eve neeeeeees .

Matter of Nowak v. Werestynski, 21 A. D. 2d 427,

250 N. T. S. 2 981 e e A 14

N

2

. aon f

f Real v. Dee ie 42 D Div. 562 158 N. 1 8. 2d ae

809 (ist Dept. 1955⸗ͥ²n⸗ͤ-on 4 e 19

Salter v. New York State Payehological 1

14 N. T. 2d 100, 248 N. T. S. 2d 867, 198 N. E.

24d 250 (1964) b 9,18

Simons v. Borry, 200 * v. 463, 148 N. E. 636 (1925) 10

Matter of Towers Man. Corp. v. Thatcher, 211 N. T.

94, 2 N. H. 2d 278 (1936/̃0ũ q “as

Trautwein v. Harbourt, 40 N. J. Super. 247, 123 A.

2d 30 (1956), certification denied 22 N. J. 220, f

126 A. 2d 988 (1956) . . . .. cians 8 ee

Vaca v. Sipes, 386 U. 8. i. 87 S. o. 903 (1967) me :

~ Matter of Weidenfeld v. Keppler, 84 App. Div. 235,

} 82 N. Y. S. 634 (1st Dept. 1903) * 176 N. *

668, 68 M. M . e b e ee, H, 18

Wilson v. Newspaper and Mail Deliverers’ Union,

123 N. J. Eq. 347, 197 X 720 (1938) 2 10.

| Civil f Practice Law 121 Rules of the State of New 3

Tork: , | ae:

Section 103(b) 5 ee e

Section on 9 5 ere pe 12

TTT

Section 3017 (a) e eee 13

35 8 % eS, Ea

| Section 7806 paras Powe tesiess se efhsvas ead: joes 5 43, 4 :

Labor Menatement Relations Act: | \ a ae . ce ar?

29 U. 8, C. A. 5158 (b) (1) — 93—＋— —— — — * 19

* — Cited - *

Summers, “The Right to Join a wera 47°Colum.

ms I. Rev. 33, 48-44 (1947) ., ea OE REA Ss ear 9

= Weinstein, Korn & Miller, New York Civil Practice ;.

aan OE. 47 inks e e 9 2 9 .d 18

Weinstein, Korn & Miller, 7608.06, v 1 e .

eee f a eee * 4

* de ss 2

¢ |

os “TawararoaL Parsons Umiox No. l, INTERNATIONAL Alua- 8

axon or TUNATAAL anv Stace Buriovans, A. F. L.-C. I. O.,

— 22 0 . Petibioner,

Supreme omen ae Auued ee.

Ocrosus Trnu, 1968

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ances Pusu, — Amavon and rts Bras.

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BRIEF IN OPPOSITION To PETITION FOR A

WRIT OF CERTIORARI,

4

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Me ” Statement of the Case : \ 2

Harold Phalen, Stephen 1 iad Harry Ryan, peti-

tioners in the court below, brought this suit in the form

of an Article 78 proceeding for an order ‘‘directing re-

spondent union to admit each of the petitioners to member-

ship“ in Theatrical Protective Union No. 1, International

‘Alliance of Theatrical and Stage Employees, A.F L. C. -I

: (hereinafter called ‘‘the Union.’ (R. 7- 11). 1

The petition and supporting paper allege that the

Union has sole jurisdiction in New York and Bronx

Counties amounting to ‘‘monopolistic power (R. 11)

over the hiring of stage hands and stage maintenance

employees in local theatres. The Union, however, restriets

its membership (R. 11), not dn the basis of reasonable

or objective criteria, such as experience or ability (R. 20),

but generally on the basis that the candidate has been

proposed by his father or a relative (R. 14). The appren-

tice training route is not open to petitioners, who are over

35, even in the unlikely event of sen proposed by a Union

member (R. 14).

Hach of the petitioners had worked for many-years as a

. , Stage hand or stage maintenance man and, before suing,

chad applied many time to respondent for membership

but had been refused“ without valid reasons, every time

(R. 11). Injury resulted to their right to take part in

union activities that vitally effect their livelihood.

‘The ‘‘ prime reason’? for the Union's membership restric-

tive practices is to „perpetate the members economic

status at the expense of the non-member,” allowing mem-

ber’ to easily earn $15,000.00 per annum, whereas non-

members . . . have difficulty earning $4,000 per annum

from covered employers” (R. 14). When they fall below

that figure, their pension rights are imperiled (R. 10-11).

The Unien, as the exclusive bargaining agent for stage

hands and stage maintenance employees in theatres in its

area, negotiates work conditions and pay scales for non-

members as well as members (R. 12). Although petitioners

must pay 4 per cent of their gross weekly salary to the

Union (R. 12), they are never consulted about rates of pay

and working conditions (R. 13), and self evidentially are

taxed without representation. Adding to the injustice, the

non-members’ assessments are used to provide funeral

expenses and other benefits for members only (R. 24).

The Union has unreasonably and illegally denied peti-

tioners a right to economic security and to earn a living

(R. 20). Some of the ways in which the denial works are

vividly pictured in the affidavits. Petitioner Phalen re-

counts his difficulties in finding and holding a stage hand’s

job with normal continuity, of competing on. an equal basis

with the members of the Union, and of getting enough

work to earn a living (R. 13). Petitioner Ryan’s affidavit

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documents the continual interruptions / his employment:

over a six year period (R. 16-49). lay-off led him to

file an unfair labor prac complaint with the National

Labor Relations Board. dispute was settled shortly

afterward, when the Union agreed’ to get him a stage

hand’s job if he withdrew the complaint (R. 23).

Summary 4

„The Union 125 violated petitioners’ rights by its un-

reasonably restrictive admission practices. Their injuries

include wrongful exclusion from a part in oe the

Union’s policies and choosing its officers; and denial of a

vote on the amount of dues or assessments or a voice as to

terms to be proposed or accepted in bargaining collectively ß

with employers. Petitioners have been left out of some of

the economic benefits enjoyed. by members, and taxed and

regulated without representation. They have been -indi-

rectly damaged in their right to earn a living and to have

equal access on merit to jobs m their chosen trade.

Those results of the Union’s persistent, unjustifiable ex-

elusion of petitioners from membership amount to action-

able wrongs.

The courts of New York are . ende to give relief

from these wrongs. They can assure that petitioners will

be considered for membership on the basis of fair and

lawful criteria. An order under Article 78 would oe:

the needed relief; but if for any reason such an order is

not available, the courts are free to award whatever

remedy is appropriate. 1

The state courts are not rendered incompetent in this

ease on a theory of federal pre-emption, for no paramount

federal interests are involved in this challenge to the

Union’s ee admission practices.

eS

oe, Question Presented

Does the National Labor Relations Board have power

to grant union membership to a non-member working

within e of a local or does Section 154 (b) (1)

of 29 U. S. C. A. oust the National Labor Relations Board.

in that area of granting an order directing union mem-

- bership but relegating the individual to state courts as only

the state cous have jurisdiction over issues involving

the internal workings of a union.

| The nion has violated petitioners’ rights by unjusti-

fiably them from membership.

The main issue raised by the petition for a Writ of

Certiorari is a. fundamental one: Is it true that no New

York court has any concern about who is admitted to or

barred from membership in a union, or why—on the rea-

soning that no person has any legal right to join a union?

Petitioners say it is not true. They rely on considerations

‘of fairness, sound policy and justice, as well as a strong

trend i in the developing statutory and case law. The Uni on

answers Yes and invokes analogy and old precedents.

The main argument from analogy runs, in effect, No

one could enlist the law to force his fellowship on the

members of a golf club, a beach club, a lodge or a fra-

ternity. No more can he do so to get into a union.“

Underlying that argument is the unspoken but false

assumption that the motive and effects involved in joining

are similar in the two cases. Appiicants for membership

in a golf club have a yen for fun and fellowship. But men

who want to become members of a union have their liveli-

hood uppermost in mind. This difference became appar-

ent. nearly a ee ago: .

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It is one thing t. ‘to exclude a person 1 from partici-

pating i in enjoyable social functions, but it is another

thing to exclude him from participating in determin-

ing the rules which will govern his working hours

and his economic well-being.“ Summers, The

Right to Join a Union,“ 47 Colum. L. Rev. 33, 43-44

A

Exclusion 9 taking suit in ee the rales

under which they earn a living precisely describes the kind

of injury petitioners have suffered. For such an injury

judicial remedy exists and no musty learning can stand in

the way of its recognition.

The dicta that long ago asserted that unions, as vol-

untary associations, have an absolute right to select their

members without interference from any quarter, rested

on social conditions long since outdated and theories now

discarded. They were uttered before the dawn of the era

in which the economic well-being of the workingman be-

came intimately bound up with labor union activities. They

depended on a view of what unions are, what role they

play in the lives of workingmen in many lines of work,

that i is totally unreal today.

In those days the relationship created by joining a

union was thought to be one of a highly personal nature.

Recognizing the futility of attempting to force one man’s

companionship on another,“ the courts were loath to or-

der.-unions to admit applicants. - Some decisions laid it

down that the unions had as much power to exclude ‘as

a fraternal lodge—for any reason at all or no reason

whatever. Those days have passed. For at least a genera-

tion it has been absurd to apply legal rules vovering clubs,

fraternities and other social groups to the problem of ad-

mission to labor unions.

6.

As the record in this case shows, membership in the

respondent Union is for these petitioners the key to an

efffctive voice in labor relations and working conditions

and to a chance for equal job opportunity. Non-members

are not consulted:in the collective bargaining process with

regard to such matters as the work conditions or pay

scales they seek (R. 13). They have no voice in determin-

ing the Union’s officers or policies, although both will affect

their livelihood. Ryan’s affidavit shows a regular assess-

ment of 4 per cent of gross earnings, payable to the union,

in part to defray benefit@ for members only (R. 24). Their ? |

employment tends to be sporadic, irregular, constantly in- ; |

terrupted (R. 13, 16-19). In the Union’s hiring hall tog *

are at a disadvantage compared to members. a

On the record here all those well · pleaded W dN by

petitioners stand admitted. —

Likewise beyond dispute is the Special Term’s finding |

that the Union’s. arbitrary refusal to admit petitioners -

into membership has either effectuated or threatens to

effectuate, a divestment» of their * fund benefits 12

3 : r Sat

pa’ In the face of Webs demonstrations of i injury to import- |

ant interests, no modern court would hold that petitioners

have failed to set forth a claim that substantial * have

deen invaded.

The majority of the Appellate Division; in dismissing

the petition, did not deny the substantive validity of peti-

tioners’ claims: Their decision went on a procedural

point, namely that suit under Article 78 in the nature

of mandamus is not an allowable remedy against a union

„in the absence of a violation of a statutory duty’’ (43).

We show in Point II, below, that this was a needlessly

ee ee een

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The critical point bere is not procedural- but substan-

tive. These’ petitioners have substantial rights in rela-

tion to the Union, and those rights ‘were violated.

True, no non- member can point to a statute or deci-

sion that in terms gives him an absolute right to join this

union of that. But every non-member can assert a right

not to have his application rejected e unreason-.

ably, or on unjust grounds.

Limits on unions’ power to exclude 8 have ap-

peared increasingly in both legislative ‘and judicial pro-

nouncements. In the Civil Rights Act of 1964 Congress

put the stamp of national concern on the problem. Many

years earlier the legislature of this State had given im-

petus to the movement by adopting Section 43 of the 5

Civil Rights Law., Both statutes forbid unions to exelude

individuals from membership on grounds of race, color,

religion, sex or national origin. They establish that the

so-called free choice’? and voluntary association” |

dogmas of yesteryear have no application to contemporary .

unions. They recognize that unions hold too much power

over economic opportunity for too many people to be left

to follow whims and caprices under the mask of free. choice.

The, fact that the national and state legislatures have

banned discrimination for specified reasons does not mean

that unions have carte blanche to practice it for other

reasons. The legislation does not license them to behave

arbitrarily or unjustly in their admission. practices as long

as they avoid the enumerated prohibitions. Legislative

action has not meant judicial paralysis. Far from exclud-

ing parallel judicial trends, the enactments have rein-

5 foroed them.

A clear * of authority has emerged, ditiigtahing

between social groups on the one hand and professional or é

vocational groups on the other. The Order of Eastern

Aren may as ‘a social group bar whichever ladies it will

for’ 8 reasons it will, but the same is not true of

an organization that wields economic power over would-be ~

members’ lives. See Trautwein v. Harbourt, 40 N. J.

Super. 247, 123 A. 2d 30 (1956), certification denied 22

N. J. 220, 125 A. 2d 233 (1956). A clear expression of the

difference has appeared in cases testing whether a medical

society may exclude a doctor on grounds that are unre-

lated to objective standards.

Older cases mechanically applied the die that a

medical society is a voluntary association with absolute

control over its own membership rolls. Recent authority

. holds that the group’s virtual monopoly over the practice

in a locality makes membership a practical necessity.

‘Fairness in admission policies and practices will be en-

5 forced by courts with increasing readiness. The leading

case is Falcone v. Middlesex County Medical Society. 34

N. J. 582, 170 A. 2d 791 (1961), where the doctrinal meta-

morphosis i is carefully traced 5 N. J.; eat 5. 596, 170 A.

2d, at 5 799): ‘

. When courts originally 0 to scrutinize

Aa practices of membership associations they

were dealing with social clubs, religious organiza-

tions and fraternal] associations. Here the policies |

against judicial intervention were strong and there

were no significant countervailing policies. When

the courts were later called upon to deal with trade

and professional associations exercising virtually

monopolistic control, different factors. were in-

‘volved. The intimate personal relationship which

pervaded the social, religious and fraternal organi-

gations were hardly in evidence and the individual's

opportunity of earning a livelihood and serving

society in his chosen trade or profession appeared

as the controlling policy consideration. Here there

have. been persuasive indications that in a’case

6 :

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——— — —P¹äGz—;]ĩ?2783³6—.ͥ [-

presenting sufficiently n factual and wield

considerations, judicial relief will be available to

oompel admission to membership. . 43 9

Dr. Falcone was ordered admitted to 3 in

the Society. He had been kept out because, although he

had attended a State - aceredited medical school for a full

course and satisfied the written by-laws’ standards, and:

was a qualified physician, his main medical training was

ve in a school not approved by the A.M.A. The Society’s .

ethics committee imposed an wnwritten requirement of

A. M. A. approval and rejected Dr. Falcone. The. Supreme

Court of New Jersey declared that membership in the

Society was an economic necessity”’ and that (id., at p.

592, 170 A. 2d, at p. 797):

4%. . . in dealing with such an 8 the

court must be particularly alert to the need for

‘truly protecting the public welfare and advancing

the interests of justice by reasonably safeguarding —

the individual’s opportunity for earning a liveli-

hood while not impairing the proper standards and.

objectives of the organization. e

In 1964 the Court of Appeals of the State of New York

carefully considered and strongly approved the Falcone

decision as one in which the court had ordered the appli-

cant admitted to membership because he proved both

monopoly and ‘economic necessity. Salter v. New York

State Psychological Association, 14 N. Y. 2d 100, 107, 248

N. V. S. 2d 867, 872, 198 N. E. 2d 250, 253 (1964). How-

ever, Salter’s situation was different, for he failed to

satisfy the Association’s objection requirement of post-

graduate work. The Court of Appeals of the State of

New York accordingly, declined to hold the Association’s

action improper. (See, also, Firestone v. First District

Dental Society, 24 A. D. 2d 268, 265 N. V. S. 2d 525 (Ist

Dept. 1965); Kurk v. Medical Society of Queens, Inc., 46

Mise. 94 790, 260 N. L. S. 2d 520 (1965), revd. on other

grounds, 24 A. D. 2d 897, 264 N. V. S. 2d 859 (2d Dept.

o

The Faloone doctrine applies with ‘ecual force to arbi-

trary exclusion practices by a labor union with monopolis-

tic powers when economic injuries result, as they have to

these petitioners. As long ago as 1925 this Court, in a

labor union case, Simons v. Berry, 240 N. V. 463, 465, 148

1 N. E. 636, 637 (1925), declared (per Judge Cardozo) :

Equity will enjoin the denial to a member of

a privileges of membership where tH denial, if

continued, will work irreparable injury. *

Simons had been a member of a local printing press-

men's union, the charter of which was revoked by the

parent international union. He applied for membership in

the international, but was rejected. The Appellate Divi-

sion dismissed his complaint that asked for membership,

an injunction and damages against the union, but the

Court of Appeals for the State of New York reversed, —

making clear that union membership privileges are valu-

able rights, deserving of protection against illegal denial.

Outside New York, a parallel trail was marked by far-

‘sighted New Jersey and California, decisions. In Wilson.

v. Newspaper and Mail Deliverers’ Union, 123 N. J. Eq.

347, 350-351, 197 A. 720, 722 (1938), the court admonished

the union that had refused Wilson’s application for mem-

' bership: the holders of the monopoly must not exercise

tbeir Power in an arbitrary, e manner s0 as to

bring injury to others.

The theme that a union’s greater oer iniposes Stake

responsibility to play fairly with applicants was recog-

_ nized ‘a California in James v. Marinship Corp., 25 Cal. 2d

721, 731, 155 P. 2d 229, 335 (1944), the Supreme Court

stating: | he

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; ne hide sake sl einai ao

eee of the supply of labor by mean’ of closed

shop agreements and other forms of collective labor

action, such a union occupies a quasi-public position

similar. to that of a public service business and it

has certain corresponding obligations. It may no

longer claim the same freedom from legal restraint .

enjoyed by golf clubs or fraternal organizations. Its

asserted right to choose its own members does not

merely relate to social relations; it affects the fun-

damental right to work for a living. wie 2" ä

See, also, Blende v. Maricopa County Medical . 96

Ariz. 240, 393 P. 2d 926 (1964); Kronen v. Pacific Coast

Society of Orthodontists, 237 Cal. App.. a 289, 46 Cal.

Rptr. 808 (1st Dist. 1965). g

To forbid a union to discriminate for race or religion,

as the statutes do, or for other arbitrary and unreasonable ©

. considerations, as the courts increasingly do, does not Iéave

the unions helpless to control admission. They remain

entirely free to adopt fair criteria of admission and to

administer them with equality and 1rJasonable_ objectivity.

Applying fair criteria, they could keep out individuals who

are incompetent at their trade or occupation, who engage

in spying or other activities calculated to injure the union,

- who have criminal records, or: who are otherwise unfit.

No such grounds have been’ shown here or could be. The

Union has made no effort to justify its refusal to admit

_ petitioners to membership. It does not pretend that they

are unqualified—morally, physically, mentally, or by reason

of incompetence at their work. It does not try to relate

their rejection to any objective criteria. It stands on an.

uncompromising assertion of a presumed right to bar

them, whatever the injury to their economic well-being and

regardless of its power over Weir ocoupations.

= 5

In pursuing that course, the Union 15 substantially

injured the petitioners in respect to substantial legal inter-

ests. The question that remains is what kind of judicial

redress is appropriate for their injury. *

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c . Having shown r to substantial righ petitioners

are entitled to due relief. :

Petitioners’ basic right to 1 considered for Wen r

in the Union by fair and reasonable criteria was not chal-

lenged by the court below. Its order of dismissal was dic-

tated by its view that applicable procedural rules hold an.

Article 78 proceeding for mandamus does note": in these

circumstances. 7

If mandamus is not available, what about oles types of

relief 7. The possibility of awarding ‘a different remedy ~

seems not to have occurred to the e Division

majority. .

Its order thus rested upon the mistaken view W the

rh court was bound by old and narrow precedents that pre-*

’ ° elude mandamus-style relief; and upon the wrong impres- -

sion that if the requested remedy i is not —, * court

a has no alternative. but to dismiss. -

That may have been the law in centuries past, big peti-

tioners before New York courts who today show an inva-

sion of their legal interests become entitled to a ‘remedy,

even if the court thinks they have mistaken its forni. “Sec- .

tion 103(c) of the Civil Practice Law and Rules of the:

State of New Vork i is clear and categorical that 5 | ;

a civil judicial proceeding shall not be .

solely because it is not brought in the proper

form.

4

Instead of dismissing the suit, , the court shall make what- . \

ever order is required for its proper prosecution.”’ This

applies not only traditional actions but also ta special :

proceedings of the Article 78 type, as CPLR $103 (b) of 5

tlie State of New Vork makes clear:

Procedure i in special * shall be: ‘the

same as in actions, and the provisions of the civil

practice law and rules applicable to actions — 8 ̃

* to special proceedings. i

5

These provisions are à firm directive 40 the courts to

bend their efforts to cure defects in matters of form. A

court with jurisdiction over the parties may not resign in

the face of a merely formal mistake. It must make what-

ever order is required for the proper prosecution of the

case. There is no longer a procedural no man's land.“

Weinstein, Korn & Miller, New York Civil Practice = 03,

pp. 4-7.

Perhaps in using the eryptie mie „mandamus does

not lie’? the court was challenging more than the particular

writ and was ruling that no Article 78. relief of any kind

would lie. If so, its ruling is erroneous for failing to take

i n of CPLR $§3017 and 7806 of the State of New

Tork. Those provisions make plain that the result of seek-

ing an incorrect or unavailable remedy is a corrective

order, not a dismissal. , : : ä

- | Section 3017 (a) of the CPLR of the State of New Nen

15 provides i in its relevant part that

„the court may grant any. e of relief within its

jurisdiction appropriate to the proof whether or not 5

demanded, imposing such terms as may be just.

t

Under that grant of authority the courts have general

power to award whatever relief is called for by the case

made, with ‘conditions added as circumstances require, in

' the interests of justice.

14

To fortify that general authority in Article 78 proceed-

ings, CPLR §7806 of the State of New York specifically

provides that the judgment in a special proceeding ‘‘may

grant the petitioner the relief to which he is entitled, re

gardless of his prayer. -

When the Appellate Division, First Department, Supreme

Court of the State of New York reached the conclusion that

mandamus-style relief under Article 78 was not appro-

priate against the Union by reason of the absence of a

‘*statutory duty, it was obliged to consider other relief—

declaratory judgment, equitable injunction, or whatever

' remedy it might fashion to assure am efficacious result.

(See Matter of Nowak v. Wereszynski, 21 A. D. 2d 427,

430, 250 N. Y. S. 2d 981, 983 (4th Dept. 1964).) Any

remedy that does not depend on whether the duty breached

fe.‘‘statutory”’ ‘might have qualified.

Petitioners’ grievances should have been decided on

their merits, not dismissed on a procedural nicety. To

dismiss for assumed technical restrictions is contrary to

both the letter and spirit of the CPLR of the State of * ew

York. .

But even if the court were in truth restricted to award-

ing mandamus or nothing, it should have decided for

mandamus. Petitioners’ rights were violated by the Un-

ion’s continuing determination not to consider their ap-

plications on fair criteria. That action was ‘‘arbitrary

and capricious’’ and an abuse of discretion. There being

no contractual or other private legal relationship, a pro-

ceeding under Article 78 is the indicated remedy; and of

the Article 78 remedies a directive order in the nature

of mandamus is more suitable than a certiorari-style re-

view, or an ‘order of 3 which attacks jurisdic-

tion.

The arguments in said r Division were e that the

— remedy i is 3 because there is an ade-

„ *

quate remedy at law, because no r duty”? exists,

and because the Union, as an unincorporated group, is im-

mune from a mandatory order. Those arguments rest upon

TCE

language of Article 78.

Nowhere in the CPLR of the State of New York is Article

78 relief restricted or conditioned in any of fhose ways.

Nothing in the CPLR of the State of New York makes

Article 78 a second-class or a last-extreme remedy com-

pared to other types of proceedings. There is no hint of

an adequate remedy at law’’ restriction on relief under

the Article. If the New York State legislature had intended

that these proceedings be available only when no other legal

‘remedy is open, it would have found the words to say so,

explicitly, as it did in Section 7801 of the State of New

York in requiring finality and exhaustion of remedies

as prerequisites to Article 78 review. Those requirements

are obviously designed to prevent resort to the courts while

administrative or other non-court channels of correction

are still open. Those requirements have no applicability

here, where there are no non-judicial stones unturned. Cf.

Matter of Towers Man. Corp. v. Thatcher, 271 N. Y. 94, 98,

2 N. E. 2d 273, 274 (1936). The Union’s repeated rejection

of petitioners’ application is final. They have no fur-

ther recourse. No unused opportunity for rehearing exists.

There is no appellate path to obtain a review of the Union’s

actions.

While random expressions ‘appear in some of the cases

indicating | that the abgence of an adequate remedy at law

is a condition to maintaining mandamus-type proceedings,

the expressions obviously do not rewrite the 1963 statute.

These petitioners aid all they were required to do by

way of exhausting ‘nOn-judicial remedies when they ap-

*

16

plied and reapplied to the Union for admission to mem-

bership and received unqualified rejections. Being prop-

erly before the court on substantial claims of right, they

ought not be ejected on the ground that since they chose

to enter by the wrong door, they must now depart, and

return by a different one. Their petition asks for an or-

der ‘‘directing respondent to admit’’ them, and they are

not disposed to cavil about how the court accomplishes

that result.

The absence of a ‘‘statutory duty“ or a duty spe-

cifically enjoined by law““ once deterred many courts

‘ from. ordering mandamus, but it is no longer crucial, now

that other grounds nage tan added. Under the present

provisions of Article separate and sufficient grounds

for mandatory relief are present if the challenged deter-

mination was arbitrary and capricious’’ or an abuse

of discretion. CPLR 57803, subd. (3) of the State of e

New York. The leading commmentators in the field sum-

marize as follows the impact of the new provisions ( Wein-

stein, Korn & Miller, $7803.06, p. 78-41) :

„CPLR 7803 (3) now specifically — that a

_ Claim of an abuse of discretion’ or of ‘arbitrary

and capricious’ action is reviewable under Article

78. The addition of this explicit language should

serve to vindicate the substantial body of previous

authority permitting review of the exercise of dis-.

cretion and rejecting the inference that the ‘duty

enjoined by law’ language (stated the exclusive

ground.

NA the previous authority were (pre-1963 deci-

7 sions by said Court of Appeals allowing mandamus-style

proceedings to challenge actions as ‘‘arbitrary and ca- | |

pricious or an abuse of discretion. ’” Matter of Brown | 55

e

v. McGinnis, 10 N. T. 2d 531, 225 N. T. S. 2d 497, 180 N. E.

2d 791 (1962); Matter of Mandle v. Brown, 5 N. T. 2d 51,

177 N. V. S. 2d 482, 152 N. E. 2d 511 (1958); Matter of

Diocese of: Rochester v. Planning Board of Brighton, 1

N. V. 2d 508, 154 N. V. S. 2d 849, 136 N. E. 2d 827 (1956)

Matter of Brenner v. O'Connell, 308 N. Y. 636, 127 N. E.

2d 715 (1955). *

Since 1963, mandamus has been utilized on those grounds

in several cases decided in the lower courts. See, e. g.,

Matter of Mancuso v. New York State Employees’ Retire-

ment System, 42 Misc. 2d 261, 247 N. Y. S. 2d 956 (Sup.

Ct. 1964); Matter of Caruci v. Dulan, 41 Misc. 2d 859,

246 N. V. S. 2d 727 (Sup. Ct. 1964), rev'd on other

grounds, 24 A. D. 2d 529, 261 N. V. S. 2d-677 (4th Dept.

1965); Matter of Council v. Donovan, 40 Mise. 2d 1 244

N. V. S. 2d 199 (Sup. Ot. 1963).

Whether or not the Union’s rejection of petitioners’

applications was a determination,“ it was by any test

arbitrary and capricious and an abuse of the discretion

lodged in the Union by law. It i is properly challenged by

‘the proceeding filed.

The contention that mandamus ‘will not lie against a

voluntary association is ultimately based on Matter of

Weidenfeld v. Keppler, 84 App. Div. 235, 82 N. V. S. 634

(Ist Dept. 1903), af d 176 N. Y. 562, 68 N. E. 1125.

Weidenfeld is a thin reed to support so heavy a burden.

The petitioner there brought mandamus against the presi-

dent of the Stock Exchange to secure reinstatement to

membership. In denying him relief, the Appellate Divi-

sion thought the single question in the case was whether

‘‘mandamus is the proper remedy, and concluded it was

not. The Court of Appeals for the State of New York.

affirmed without opinion.

eee | : b 26 - ;

18

The reasoning in the Weidenfeld case was that since

the state had not chartered the Exchange, the latter de-

rived no rights from it; hence, the enon presented did |

not partake of a “public nature.” 5

That reasoning has no applicability to a union exercis-

ing the kind of economie control over petitioners’ liveli-

hood that the record in this case describes. Whether or

not Weidenfeld would today be upheld on its facts need

not concern us. Times are different, the law has moved

and the Union in 1967 is not the Stock Exchange of 1903.

7 This Court has recently recognized that an Article 78

proceeding is a proper means of obtaining judicial re-

view of a denial of membership in a voluntary association.

In Salter v: New York State Psychological Association.

supra, 14 N. V. 2d 100, 248 N. V. S. 2d 867, 198 N. E. 2d

250 (1964), a mandamus-style petition was brought, was

entertained in the lower courts without dissent, and was

sanctioned by this Court. Dr. Salter was-not able to meet

the Association’s reasonable requirements, but his case

shows that the court below erred in its view that man-

damus does not lie“ in a membership rejection proceeding.

* | III

The state courts are not rendered incompetent by the

federal pre-emption doctrine.”

New York courts are not ousted from 3 over

this suit on any theory of federal pre-emption. There is

no great federal question here involving strikes, boycott,

collective bargaining or other labor- management issues of

national impact. No employer has been sued. Employ-

ment relations come into the pieture only in the most tenu-

ous and peripheral manner, if at all. 5

The relief sought defines the controversy as one within

state court competence. Petitioners seek an order

directing ve to admit each of said n to

membership... (R. 11). „

This ae ia not one the Congress hie committed to

the exclusive competence of the National Labor Rélations

Board. On the contrary, the Labor Management Rela-

——— —

tions Act, while investing the Board with jurisdiction over

„unfair labor practices, deliberately preserves the

union's control of membership by en 29 U. 8. C. A.

§158(b) (1)):

‘©... Provided, That this 8 chall not

impair the rights of a labor organization to pre-

seribe its own rules with respect to the ieee

or retention of membership therein. L

In Judge Breitel's words, this = provision seems to

make clear Congress’ unconcern with internal rules gov-

erning membership in a union or their application, rightly

or wrongly, to particular members.“ (See Real v. Curran,

285 App. Div. 552, 556, 138 N. V. S. 2d 809, 813 (Ist Dept.

1955); s alo Green v. Folks, 13 A. D. 2d 744, 215

N. V. S. 2d (ist Dept. 1961). In those cases, both

involving claims for wrongful expulsion from union mem-

bership, the couft held it had jurisdiction. Admission to

membership is equally within the New York courts’ compe-

tence. In both the Real and Green cases, supra, the. Court

in both instances inert the defense of the Reems of pre-

emption.

After the decision below was rendered, the Union States

Supreme Court in Vaca v. Sipes, 386 U. S. 171, 87 S. Ct.

903 (1967), review and reiterated the bounds of the

. pre-emption doctrine in a way that puts the issue to rest

—

*

i in favor of state court competence. Owens, a union mem-

ber, sued officials of his Union in a state court claiming in

part that they had breached their duty to represent him

fairly in disputes’ with the employer by arbitrarily re-

> fusing to carry his grievance to arbitration. (Owens’ claim

was that his blood pressure. was not too high for him to

work in Swift & Company’s plant, despite medical opinion

to the contrary.)

On its motion to dismiss, the Union argued-ti that Owens’

suit was ‘‘arguably and basically’’ one for an unfair labor

practice within the NLRB’s exclusive jurisdiction. The

Supreme Court rejected that contention after a careful

analysis of the pre-exemption doctrine and its own decisions

thereon. It concluded that (id., 386 U. S. 171, at - 179,

87 S. Ct., at p. 911):

This pre-emption doctrine . . . has never been

rigidly applied to cases where it could not fairly be

inferred that Congress enten exclusive jurisdic-

tion to lie aoe the NLBB. .

- Exclusivity ‘will not be presumed; to infer it requires

-~Justification.. Only if allowance of state remedies will

bring down adverse effects ‘upon the administration of

national labor policies’’ is pre-emption warranted. There

is to be no ouster of state courts with out a showing of

„need“ (id., . 8. 171, at pp. 180-181, 87. S. Ct., at p. i

912) 2

„A primary justification for the 8

doctrine—the need to avoid conflicting rules of sub-

stantive law in the labor relations area and the

desirability of leaving the development of such rules

to the administrative agency created by Congress

for that purpose—is not applicable to cases involv-

ing alleged breaches dd * union m duty of fair repre-

sentation.

21

Even less is. pre-emption applicable to the present issue

_ of prescribing and applying fair criteria for admission to

union niembership.

The opinion of the Court of Appeals for the State of

New York unanimously reversed the order of the Appel-

late Division and is reported in 290 N. V. 8 2d 881 (22 N. X.

Al d).

The opinion of J ia Fuld, appears at 290 N. Y. S. 2d

page 887 where he said the following in discussing the doc-

trine of pre-emption, acquisition or retention of member-

ship, authority of the state to pass on the issue of member-

ship and the right of unions to arbitrarily b bar workers from

membership at page 887 :

I agree with Judge Burke for reversal but I cannot

accept the assumption—which seems, in part, to underly his

reasoning—that labor organizations ‘‘enjoy ‘full freedom

of association’ ’’ and are under no duty to open their mem-

bership to persons whom they would rather not admit to

their company, except in certain extraordinary, but unde-

ſined, circumstances (opinion, 22 N.Y. 2d p. 41, 290 N. V. S.

2d p. 886, 238 N. E. 2d p. 299). Nor am I able to subscribe to

the suggestion (opinion, pp. 39-40, 290 N. V. S. 2d 885, 238

N. E. 2d 298) that an aggrieved individual will have ade-

quate relief, in an action against the union for breach of its

duty of fair representation, the court merely enjoins con-

tinuance of discriminatory conduct in the future and awards

damages stemming from past discrimination. For these

reasons, I am impelled to write a a separate opinion.

It is my view that, if a late organization arbitrarily

refuses to admit to. membership persons, ‘otherwise fully

qualified. by experience and ability, they are entitled, in a

case not covered by section 43 of the Civil Rights Law, to

an order or injunction directing the union to admit them

me 7 22°

* 5

to membership.’ On u motion to dismiss a pleading, be it

complaint or petition, we read, the allegations most favor-

ably to the pleader (see, o.g., Kober v. Kober, 16 N. v. 2d

191, 193-194, 264 N. V. S. 2d 364, 365-366, 211 N. B. 2d 817,

818; Condon v. Associated Hosp. Sorv., 287 N. V. 411, 414,

40 N. R. 2d 280, and, so read, the allegations in the chal- -

_lenged pleading are sufficient to make out a cause of action

entitling the petitioners to such an order.

_ National labor policy has been built on the premise that

u majority labor’organization ie the most effective vehicle

for obtaining improvements in wages, hours and working

conditions. Consequently, it has been said, that policy ex-

tinguishes the individual employee’s power to order his

own relations with his employer and creates a power vested

in the chosen representative to act in the interests of ull

employees. (NLRB v. Allis Chalmers Mfg. Co., 388

U.S. 175, 180, 87 S. Ot. 2001, 2006, 18 L. Ed. 2d 1123). The

importance of the union in the economic life of the em-

ployee today cannot be overemphasized and, accordingly 5

its authority to act as exclusive representative is subject

to the concomitant obligation to represent all members of

the bargaining unit without hostility or discrimination to-

_ ward any, to exervise its discretion without complete good

_ faith and honesty, and to avoid arbitrary oonduet.“ ( Vaca

: Ie e scion 807 at the Labor Law have no

ie application to a proceeding by an employee against a labor organiza-

tion to admit him to membership. Section 807—derived from sec-

tion 876-a of the Civil Practice Act (the little Norris-LaGuardia

Act) —is simply designed to prevent the issuance of injunctions,

principally’ on the application of employers, in labor disputes, a

derm so defined in subdivision 10 (par. le]) of the statute as to

deurty exclude controversies between a union and its members

or potential members. (See e.g., Wolchok v. Kovenetsky, 274 App.

Div. 282, 284, 83 N. v. S. 2d 431; Caliendo v. McFarland, 13 Misc.

2d 183, 175 N. V. S.2d 869.) x

v. ‘Ripe, 986 U. 8. 171, 177, 87 S. Ot. 908, 17 L Ha 20 842;

Humphrey v. Moore, 375 U.S. 335, 342, 84 S.Ct. 363, 11

L. Hid. 2d 370.) A union which breaches its statutory man-

date to represent all employees fairly and without disorim-

ination is subject to an action for damages and an injune-

tion to prohibit the continuance of the discriminatory con-

duet. (See Steele v. L. & N. R. Co., 323 U.S. 192, 207,

65 S. Ot. 226, 89 L: Ed. 173; Tunstall v. Brotherhood, 323 U.S.

210, 65 S. Ct. 235, 89 L.Ed. 187; Syres v. Oil Workers Int.

Union, 350 U. S. 892, 76. . Ot. 152, 100 L. Ed. 785.)

. The Supreme Court in the Steele case (323 U.S. 192, 65

S.Ct. 226, 89 L.Ed. 173, supra), declared that the Railway .

Labor Act imposed on the union, a duty, ‘‘in collective

' bargaining and in making contracts with the carrier, to

represent non-union or minority union members of the

craft without hostile discrimination, fairly, . impartially, ~~

und in good fait (323 U.S., at p. 204, 65 S. Ct. at p. 233).

ue - And. i in ensuing years, the courte have applied the doc-

trine to cases involving racial, see, e. g., Conley v. Gibson,

355 U.S. 41, 78 S.Ct. 99, 2 L. Ed. 2d 80; Brotherhood of Rail-

road Trainmen v. Howard, 343 U.S. 768, 72 S. Ot. 1022, 96

L. Ed. 1283), as well as nonraecial (see, e. g., / Vaca v. Sipes,

386 U.S. 171, 87 S.Ct. 903, 17 L. Ed. 2d 842, supra; Hum-

phrey v. Moore, 375 U.S. 335, 84 S. Ot. 363, 1 L.Ed.2d 370,

20n the same day on which it decided Steele (323 U.S. 192; 65

S.Ct. 226, 89 L.Ed. 173, supra), the Supreme Court also interpreted

the National Labor Relations Act to require fair representation,

saying that a union, as the agent of all the employees, was “charged

with the responsibility of representing their interests fairly and im-

partially.“ (Wallace Corp. v. Labor Bd., 323 U.S. 248, 255, 65

S.Ct. 238, 242, 89 I.. Ed. 216; see, also, Ford Motor Co. v..Huff-

man, 345 U.S. 330, 73 S. Ct. 681, 97 L. Ed. 1048; Cyres v. Oil

Workers Int. Union, 350 U.S. 892, 76 S. Ct. 152, 100 L.Ed. 822,

supra; Humphrey v. Moore, 375 US. 335, 84 S.Ct. 363, 11 L.Ed.

24d 370, supra.) d

2

Pd

: supra; Ford N Co. v. ‘Hilton. 345, U. 8. 330, 73 8. Ct.

5 _ .681, 97 L. Ed. ai discrimination.

However, an action for breach of the duty of fair rep-

resentation by one who has been discriminated against, al-

though it may afford him an important remedy, is no sub-

stitute fer democratic participation in the affairs of the

union. Unless an individual is a member of the union, he

can have no voice in the selection of its officers who are his

N representatives in the collective bargaining process. Nor

can he, if a non-member of the union, express his approval

or disapproval of the terms of the collective bargaining

agreement, which most vitally affects every day of his

_ working life, embodying as it does the wages and terms

and conditions under which he is to work. Again, as a

nonmember, an employee will have no say (within the

union) as to questions pertaining to grievances. arising

under collective bargaining agreement even though the

interpre tion and enforcement of the en may have

a most serious impact upon him.

Furthermore, a union is free to take positions between

sets of conflicting employees represented by it and is

allowed a wide range of reasonableness in sérving the

unit it represents so long as it acts in good faith. (See

Humphrey v. Moore, 375 U.S. 335, 349, 84 S.Ct. 363, 11

L. Ed. 2d 370, supra; Ford. Motor Co. v. Huffman, 345 U.S.

330, 338, 73 S.Ct. 681, 97 L. Ed. 1048, supra; Vaca v. Sipes,

386 U.S. 171, 87 S.Ct. 903, 17 L. Ed. 2d 842, supra.) The line

of demarcation between the reasonable exercise of discre-

tion and arbitrary abuse of power is often shadowy, and

membership in the union of all qualified workers will fur-

nish at least minimum assurance that the statutory bar-

gaining agent has acted in good faith and in a nonarbitrary

manner. A union official might well think twice before dis-

25°

* | 7 :

7

5

- 3

f criminating against a worker, or a class of workers, if:

those discriminated against might, as members of tue union,

prevent his re- election.

Labor organizations, given the power to act as exclu-

sive bargaining agents, are quasi-public organizations and |

ancient dogma, which described them as voluntary asso,

ciations} with unfettered: control over their membership

rolls, must be revised in the light of the realities of present-

day” industrial life. Membership in a union is, today, a

matter which critically affects a person’s ability to earn

a living. It follows, therefore, that a labor organization

may not arbitrarily exclude an employee from membership

and that any discriminatory exclusion from such member-

ship must be condemned’ and stricken under state law (see

Note, 59 Col. L. Rey. 490, 199-200).

Tusse views/are not in conflict with what the court said

in Gaynor ¥ Rockefeller, 15 N.Y.2d 120, 256 N.Y.S.2d 584,

204 N.E.2d 627. We there held that the courts ‘will not) at

least in the first instance, issue an injunction mandating

a labor organization to admit to membership persons. ex-

~ eluded because of race, creed, color or national origin. But

that conclusion was dictated; in large part, by the fact that

in that case the plaintiffs. against whom racial discrimina-

tion & as being practiced were given a full and adequate

remedy by resort to the State Commission for Human

Rights (Civil Rights Law, 543). In the case before us,

however, no such relief is available to the petitioners and,

consequently if there is to be redress, it must be by way

of a judicial proceeding. The Legislature did not con-

sider whether the arbitrary exclusion of an employee for:

any reason other than race, color, creed or national origin

requires the specially flexible and sensitive procedures

available to the Commission for Human Rights (Executive

—

.

antes si

Law, §297, subd. 2). But, certainly, designation of that

commission to deal with racial and religious discrimination

did not take from the courts the broad powers vested in

them to. grant to parties aggrieved by wrongful conduct 5

such relief as the situation demands.

It is tone that the petitioners, by applying to the Na-

tional Labor Relations Board or by bringing a Steele-type

action, could have obtained an injunction against the union,

forbidding continuation of their discriminatory conduct,

as well as damages suffered by them (National Labor Rela-

tions Act. §8, subd. [b], par. [2]; see, e. g., Steele v. L.

& N. R. Co., 323 U.S. 192, 65 S.Ct. 226, 89 L. Ed. 173, supra).

But the National Labor Relations Board is powerless to

order that they be admitted to membership (infra, p. 47),

and an injunction which merely enjoined the union from

continuing its wrongful conduct would be utterly inade-

quate and incomplete relief. Lawsuits and injunctions are.

no substitute for the processes of democracy. Nothing less

than membership in the union can give the petitioners—

assuming they prove their allegations—their rightful op-

portunity to participate, however, indirectly, in the making

of decisions which affect them so materially. Nor will a

court injunction against discriminatory conduct enable

them, in seeking jobs, truthfully to represent to prospective

employers that they are members of the union having

jurisdiction over the work involved—a_ representation

which, as a practical matter, may be an indispensable

prerequisite to obtaining employment.

This does not, of course, mean that a union must open

its doors to felons (see Sovern, Legal Restrains on Racial

Discrimination in Employment, ch. 6, p. 152, n. 43), to

persons not qualified to perform the work of the bargaining

unit or to persons who for any reason have undertaken to

\ ae oe:

destroy the union.“ It does mean, though, that the union

must admit all workers to membership without discrimina-

tion and that if, in bad faith or arbitrarily, it rejects an

applicant, it may be compelled by order of the court or

in the case of racial discrimination by direction of the

Human Rights Commission—to admit him to membership..

On the question of Federal pre-emption, I would say but

a few words. Although I agree with Judge Burxe that the

present action is not federally pre-empted, I hesitate to

place sole reliance, as he has, on Vaca v. Sipes, 386 U.S.

171, 87 S.Ct. 903, 17, L.Ed.2d 842, supra, in view of the very

restricted meaning which had been given that decision by

knowledgeable commentators. (See, e. g., Lewis, Fair

Representation in Grievance Administration: Vaca v. Sipes,

1967 Supreme Court Review 81, 99.) My reason for con-

cluding that there is no. Federal pre-emption in this case is

very simple: the National Labor Relations Board does not

have the power to direct a labor union to admit a worker to

membership.

Section 8(b) (1) (A), which makes it an unfair labor

practice for a. union to restrain or coerce employees. in

their right to engage or ref rain from engaging in collective

activities, adds the proviso It Ihat this paragraph shall

not impair the right of a labor organization to prescribe

its own rules with respect to the acquisition or retention

of membership therein’’. (See, e.g., NLRB v. Allis-Chal-

mers Mfg. Co., 388 U.S. 175, 184, 186, 87 S. Ot. 2001, 18

L.Ed.2d 1123, supra.) The Supreme Court, construing that

ln Tawas Tube Prods. (151 N.L.R.B. 46. 48), the board held

that a union did not violate section 8(b) (1) (A) because of its

expulsion of members who had filed a decertification petition since

the. proviso to section 8(b) (1) (A) “would necessarily allow a

union to expel members who attack the very existence of the union

as an institution.”

. : —

. a * é

. 0 ‘ 1 ‘ . °

‘ 3

proviso, held in International Association of Machinists v.

Gonzales, 356 U.S. 617, 78 S.Ct. 923, 2 L.Ed.2d 1018, that

a state court was not precluded, by virtue of the pre-emption |

* doctrine, f restoring to membership a union member

who had wrongfully ousted from the union and that

the state had the power to award consequential damages

even though those damages might be for conduct which

- constituted an unfair labor practice. (See, also, Local .

100 of the United Assoc. of Journeymen & “Apprentices

Union v. Borden, 373 U.S. 690, 696-697, 83 S.Ct. 1423, 10

L.Ed.2d 638.) In the course of its opinion, the court de-

clared that 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 union rights. Such a drastic result, on the re-

mote 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 * Act“ (356 U.S.

at p. 620, 78 S.Ct. at p. 925) “

In 1963, five years after — the court summarized its

holding in that case in these words (Local 100 of the United Assoc.

of Journeymen & Apprentices’ P. Union v. Borden, 373 U.S. 690.

696-697, 83 S.Ct. 1423, 1427, 10 L.Ed.2d 638, supra): “It was

in that case [Gonzales, 356 U.S. 617, 78 S.Ct. 923, 2

L.Ed.2d 1018} that restoration of union membership was a remédy

that the Board could not accord and indeed that the internal affairs |

of unions were not in themselves a matter within the Board’s com- — |

petence. The Court then went on to hold that, in the presence of ' |

admitted state jurisdiction to order restoration of membership, the

State was not without power ‘to fill out this remedy’ by an award

of consequential damages, even though these damages might be :

‘for conduct that constituted an unfair labor practice under federal

law.” a lat

*

Thus, it is indisputable the National Labor Réla-

tions Board lacks the power to/regulate admission. of work-

ers to union membership, an order issued by a state

court requiring a union to t membership to a worker

would not conflict with any boa, y. It is hardly

necessary to add that there is no ivable difference, in

the present context; between restoring to membership an

employee wrongfully ousted and admitting one who has

beén wrongfully excluded from such membership. The

injustice suffered by the worker in either case is precisely

the same. ; 8

In sum, the petition sufficiently alleges that the respond-

ent union violated the petitioners’ right to be considered

for membership on the basis of fair standards, fairly ap-

plied. If, followipg interposition of an answer by the

respondent and a hearing at Special Term, the petitioners’

allegations are proven, they are entitled to an order re-

quiring the respondent to admit them to/membership and to

such other additional relief as may be appropriate.“

5 Even though the petitioners may have requested relief to which

they are not entitled, CPLR 3017 (subd. [a]) provides—as Judge

Burke observed in his opinion (22 N.Y.2d p. 41, 290 N.Y.S.2d

p. 887, 238 N.E.2d p. 299)—that “the court may grant any type of

relief within its jurisdiction appropriate to the proof whether or not

demanded”. (See, also, 1 Weinstein-Korn-Milſer, N.Y.Civ.Prac..

par. 401.03, pp. 4-7, where it is said, “Under the new practice there

is no “procedural no-man’s land.)

q

_. Conclusion

The Union has violated petitioners’ right to be consid-

. ered for membership in the Union on the basis’ of fair

standards, fairly applied. Its arbitrary and unjustifiable

rejection of their applications has injured these working-

men in substantial ways. They are entitled to judicial re-

dress for their i injuries.

| The petition-for a Writ of Certiorari should be denied.

— : Respectfully submitted,

e D. Moxshixx,

Attorney for Harold Phalen, Stephen

Amador and Harry Ryan.

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