Petition for Writ of Certiorari — Constantine Ballas as President of Lodge 1894, International Association of Machinists & Aerospace Workers, AFL-CIO v. Matthew McKiernan, John P. Carroll, and Jose Antonio Colon

Supreme Court brief1974

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CONSTANTINE BALLAS, AS PRESIDENT OF

LODGE 1894, INTERNATIONAL ASSOCIATION

B OF MACHINISTS & AEROSPACE WORKERS,

| AFL-CIO,

a ~ Petitioner,

MATTHEW McKIERNAN, JOHN P. CARROLL, and

JOSE ANTONIO COLON,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

NEW YORK STATE COURT OF APPEALS

. STEPHEN C. VLADECK

. | Viaveck, Exias, Viaveck & Lewis, P. C.

is Attorneys for Petitioner

1501 Broadway,

New York, N. Y. 10036

(212) 221-2555

and

Puiato EB. Papps

1300 Connecticut Avenue, N. W.

Washington, D. C. 20036

General Counsel,

International Association of

a Machinists and Aerospace

z Workers, AFL-CIO

StTerpHen C. VLADECK on

: Jupira P, ViApEck

— Rosert L. Jauvris

e of Counsel

TABLE OF CONTENTS

PAGE

a ae: aaa se me a 1

REE Beets oon oe Ae ee 2

Questions Presented for Review ................. 2

SIND OE ce 2

Statement of the Case ................0.0000055. 4

EN Gh oc b cS oes sw cb u obd os cecaceee 4

-B. How the Federal Questions Were Presented 6

C. The Decision Below .................... 7

Reasons for Granting the Writ .................. 8

(A) The Decision of the Court of Appeals Conflicts

With the Principle, Embodied in Decisions of

This Court, That Unions May Impose and Col-

lect Disciplinary Fines for Breaches of Legiti-

mate Union Rules ......................... i)

(B) The Decision of the Court of Appeals Conflicts

With the National Labor Policy Clearly Man-

dating the Right of Unions, Under Title I of

the LMRDA, to Establish and Enforce Rules

to Protect Themselves as Institutions Without

Judicial Interference ..................... 13

a Departure From the Meaning of the ‘‘Free-

dom of Association’’ Provision of the Railway

RMIT ME Soo Part RUN ea tein 16

TABLE OF CONTENTS

(D) The Decision of the Court of Appeals Fails

to Recognize the Effect of the Union Shop

Provision Upon Union Membership Obliga-

WN i io dix nici hae kik SERENE VER aes ee ras

Te eg Ne Se cic aa

APPENDIX A

Opinion of the New York State Court of Appeals

Appenpix B

Order Granting Leave to Appeal to the Court of

a SCN RUE O Kes Cea ANS res ae Teens

APPENDIX C

Opinion and Order of the Appellate Division,

Second Department ................ cece

Aprenpix D

Order Granting Leave to Appeal to the Appellate

I Bg lian RSS oe eae hee CRk cee Te

ApPenpix E

Decision and Order of the Appellate Term for

the 2nd and 11th Districts ...................

ApPenpix F

Opinion and Order of the Civil Court, Queens

SUES t wuss rbe haw cen cue tae reese eine

ApPEeNDIx G

Answers of Respondents [Raising Federal Ques-

ee ee

PAGE

\ TABLE OF CONTENTS ili

PAGE

CITATIONS

Cases

Airlines Maintenance Lodge 702, International

Association of Machinists v. Loudermilk, 444

F. 2d 719 (5 Cir. 1971) ......-.-ccceens 14, 15, 17, 18

Booster Lodge No. 405, LIAMAW, AFL-CIO v.

National Labor Relations Board, 412 U. S. 84

GUUS 2s ci ear ceacauceetavsseebersseaeurga ves 12

Gurton v. Arons, 339 F. 2d 371 (2d Cir. 1964) ... 16

International Association of Machinists v. Street,

S67 U. 8. 740. CIGGL) .. nc ncccccccccccceseses 17

International Brotherhood of Boilermakers, Iron

Shipbuilders, Blacksmiths, Forgers and Help-

ers, AFL-CIO v. Hardeman, 401 U. S. 233

(1971), rehearing denied, 402 U. S. 967 (1971) 16

National Labor Relations Board v. Allis-Chalmers

Mfg. Co., 388 U. S. 175 (1967) ........ 9, 11, 12, 15, 18

National Labor Relations Board v. Boeing Co.,

412 U. S. 67 (1973) ...... cece cece ceecccceee 12

National Labor Relations Board v. General

Motors Corp., 373 U. S. 734 (1963) ........-- 18

National Labor Relations Board v. Granite State

Joirt Board, Textile Workers Union of America,

Local 1029, AFL-CIO, 409 U. 8. 213 (1972) :... 12

Railway Employees Dept., AF of L v. Hanson,

O51 UO. B. BB (WGGS) oc ieee csc cess 18

Salzhandler v. Caputo, 316 F. 24 445 (2d Cir.

TABLE OF CONTENTS

PAGE

Sawyers v. Grand Lodge International Associa-

tion of Machinists, 279 F. Supp. 747 (E..D. Mo.

1967) ........ pincers Cae e ete ncuaees oeerin’ 14

Scofield v. N ational Labor Relations Board, 394

U. S. 423 (1969) ............... tc Geka 9 wa 11, 15

Steele v. Louisville & Nashville Railroad Co., 323

ie WM PE cack hace in ev ev kwe see lee etw es 11

Statutes

Labor-Management Reporting and Disclosure Act,

§101(a) (2), 73 Stat. 522, 29 U. S. C. §$411(a) (2),

4, 8,13

National Labor Relations Act, as amended, 61

Stat. 136, 73 Stat. 519, 29 U. S. C. 151 et seq.

§$§7, 8(b)(1)(a) ............. Wate aiies wees 9f, 10, 12

Railway Labor Act, 48 Stat. 1186, 64 Stat. 1238,

45 U. S. C. 151 et seq. §§151(a) (2), 151(a) (3),

152 (Hleventh) (a) ..................cceeeee 2, 3,17 .

28 U.S. C. § 1257(3), 62 Stat. 929 .............. 2

Miscellaneous

105 Cong. Rec. 6719-6726 ..... SMA vives wees 13

S. Rep. No. 187, 86 Cong. 1st Sess. 7 (1959) .... 16

S. Rep. No. 2262, 81 Cong. 2nd Sess. 3 (1950) .... 16

Cox, ‘‘Internal Affairs of Labor Unions’’, 58

Mich. L. Rev. 819 (1960) ............. Ais va

IN THE

Supreme Court of the United States

Octrosper TeRM, 1974

No. ......

—=

CoNSTANTINE Bauuas, as Presipent or Lopce 1894, Inter-

NATIONAL ‘ASSOCIATION OF MAaAcuHINISts & AEROSPACE

Workers, AFL-CIO,

Petitioner,

Vs. Bote

MattHew McKiernan, Joun P. Carro, and

JosE ANTONIO CoLon,

Respondents.

»™

PETITION FOR A WRIT OF CERTIORARI TO THE

NEW YORK STATE COURT OF APPEALS

Petitioner prays that a Writ of Certiorari issue to

review the judgment and decision of the New York State

Court of Appeals dated July 10, 1974.

Opinions Below

The opinion of the New York State Court of Appeals

is reported at 35 N. Y. 2d 14 (1974) [Appendix A 1-7]. The

Opinion of the Appellate Division, Second Department of

the New York State Supreme Court is reported at 41 App.

Div. 2d 131, 341 N. Y. S. 2d 520 (2d Dept. 1973) [App.

*C 1-12]. The decision of the Appellate Term of the New

York State Supreme Court for the 2nd and 11th Judicial

Districts is not officially reported [App. E 1-3]. The

* “App.” refers to the Appendix to this petition,

opinion of the Civil Court of the City of New York, Queens

County is reported at 63 Misc. 2d 432, 312 N. Y. S. 2d 204

(Civ. Ct. Queens Co. 1970) [App. F 1-9].

Jurisdiction

The Judgment of the New York State Court of Appeals

was entered on July 10, 1974. The Jurisdiction of this

Court is invoked pursuant to 28 U.S. C. §1257(3).

Questions Presented for Review

1) Whether a union which seeks by action in a state

court to collect a disciplinary fine which it imposes on a

member who, without resigning from membership, actively

and publicly supported and campaigned for a rival union

as collective bargaining representative, violates the ‘‘free-

dom of association’’ provision of the Railway Labor

Act or the ‘‘free speech’’ provision of the Labor-Manage-

ment Reporting and Disclosure Act.

2) Whether the fact that a union member holds member-

ship as a result of a union shop provision in a collective

bargaining agreement pursuant to the Railway Labor Act

(45 U. S. C. §152 [Eleventh] (a)) affects the right of the

union to impose such a fine upon him.

Statutes Involved

1. Section 151(a) of the Railway Labor Act (48 Stat.

1186, 45 U. S. C. See. 151(a)) provides, in pertinent part:

‘‘The purposes of the chapter are . . . (2) to forbid

any limitation upon freedom of association among -

employees or any denial, as a condition of employ-

ment or otherwise, of the right of employees to

join a labor organization; (3) to provide for the

complete independence of carriers and of employees

in the matter of self organization to carry out the

purposes of this chapter; .. .”’

2. Section 152 (Eleventh) of the Railway Labor Act

(64 Stat. 1238, 45 U. S. C. §152 (Eleventh)) provides, in

pertinent part:

‘‘HieventH. Notwithstanding any other provi-

sions of this chapter, or of any other statute or law

of the United States, or Territory thereof, or of any

State, any carrier or carriers as defined in this

chapter and a labor organization or labor organiza-

tions duly designated and authorized to represent

employees in accordance with the requirements of

this chapter shall be permitted——

(a) to make agreements, requiring, as a condition

of continued employment, that within sixty days

following the beginning of such employment, or

the effective date of such agreements, whichever is

the later, all employees shall become members of the

labor organization representing their craft or class:

Provided, That no such agreement shall require such

condition of employment with respect to employees

to whom membership is not available upon the same

terms and conditions as are generally applicable to

any other member or with respect to employees to

whom membership was denied or terminated for

any reason other than the failure of the employee

to tender the periodic dues, initiation fees, and

assessments (not including fines and penalties)

uniformily required as a condition of acquiring or

retaining membership. ’’

3. Section 101(a)(2) of the Labor-Management Report-

ing and Disclosure Act of 1959, as amended (73 Stat. 522,

29 U.S. C. §411(a)(2) provides:

‘**(2) Freedom of Speech and Assembly.—Every

member of any labor organization shall have the

right to meet and assemble freely with other mem-

bers; and to express any views, arguments, or

opinions; and to express at meetings of the labor

organization his views, upon candidates in an elec-

tion of the labor organization or upon any business

properly before the meeting, subject to the organi-

zation’s established and reasonable rules pertaining

to the conduct of meetings: Provided, that nothing

herein shall be construed to impair the right of a

labor organization to adopt and enforce reasonable

rules as to the responsibility of every member toward

the organization as an institution and to his refrain-

ing from conduct that would interfere with its per-

formance of its legal or contractual obligations. ’’

Statement of the Case

A. The Facts.

The petitioner Union (‘‘IAM’’) has for many years

been the elected collective bargaining representative of

mechanics and other categories of ground employees em-

ployed by various airlines using the facilities of LaGuardia

and Kennedy Airports.

The three respondents were aircraft mechanics, two of

whom were employed by National Airlines and the other

by Eastern Airlines. Each of them had become a member

of the IAM by virtue of the union shop provisions con-

tained in the collective bargaining agreements in effect

between the IAM and the airlines. Those provisions,

authorized by the Railway Labor Act, required that as a

condition of continued employment an employee within

the bargaining unit must become a Union member within

60 days after the co mencement of kis employment and

maintain such membership. Union membership is regu-

lated by the IAM’s Constitution and By-Laws.*

After varying periods of employment and membership

in the IAM, each of the three respondents became an

active member of a rival union, Aircraft Mechanics Fra-

ternal Association (‘“‘AMFA’’). In July, 1967, they pub-

licly and overtly organized in behalf of AMFA in a rep-

resentation election campaign in which AMFA sought to

displace the IAM as the bargaining representative of the

aircraft mechanics employed by National Airlines. During

the period of campaigning and soliciting support in behalf

of the rival union, the respondents made no attempt to

resign from IAM membership, nor did they seek in any

way to be relieved of their status or obligations as

members.

Despite respondents’ efforts while still members to

undermine the majority status of the IAM, the IAM was

successful in the election and was certified anew as ex-

clusive bargaining agent. Thereafter, individual members

of the IAM filed charges against the three respondents

based on their violation of Section 3 of Article L of the

IAM Constitution, which provides in pertinent part:

‘*The following actions or omissions shall consti-

tute misconduct by a member which shall warrant

a reprimand, fine, suspension and/or expulsion from

membership. . .’’

‘‘Attempting, inaugurating or encouraging seces-

sion from the IAM or advocating or encouraging or

attempting to inaugurate any dual labor move-

SE te

* Two of the respondents at one time had taken active member-

ship roles by holding various union offices.

Written notice of the specific charges was given each

respondent and hearings were duly held before the Union

trial committees. The trial committees recommended that

each of the respondents be found guilty of violating the

constitutional proscription against ‘‘dual unionism,’’ and

recommended fines ranging from $1,000 to $3,000. At a

membership meeting a majority of the members found

each respondent guilty, but failed to recommend fines for

two of the three respondents. On appeal, the International

President of the IAM accepted the initial recommendations

calling for fines against all three respondents.

When the respondents refused to pay the fines, the

Union instituted proceedings for their collection in the

New York City Civil Court (Queens County).

B. How the Federal Questions Were Presented.

The Federal questions sought to be reviewed were pre-

sented initially in the Civil Court by respondents’ answers

to petitioner’s complaints to enforce the disciplinary fines

[App. G 1-7].

In respondents’ affirmative defenses to petitioner’s

complaints, it was alleged that enforcement of the fines

was contrary to the provisions of the Railway Labor Act

and the Labor-Management Reporting and Disclosure Act.

These questions were argued in briefs and affidavits pre-

sents to the Civil Court on respondents’ motion and peti-

tioner’s cross-motion (the cases were consolidated for

purposes of the motions) for partial summary judgmept

on the issues of law. The Civil Court granted partial

summary judgment in favor of petitioner as to liability,

finding that the respondents enjoyed full Union member-

ship under the Union shop provisions of the Railway

Labor Act and that under the prevailing Federal labor

policy, the Union had the right to prescribe its own rules

respecting acquisition or retention of membership, to

impose fines and to bring suit for their collection against

members who violate the provisions of its constitution and

by-laws [App. F 3-6]. The Court ordered that the issues of

the reasonableness of the fines (and the internal trial pro-

cedure) be left to the Trial Court as issues of fact [App.

F 6]. On appeal to the Appellate Term of the Supreme

Court for the 2nd and 11th Judicial Districts, that Court

reversed and granted summary judgment for the respond-

ents, stating only that it was unlawful to impose a fine for

dual unionism [App. E 1]. The Federal questions were

again briefed and argued in conjunction with petitioner’s

appeal to the Appellate Division, of the Supreme Court,

Second Department which affirmed the decision and order

of the Appellate Term. The Appellate Division held, in

general terms, that the imposition of fines for dual union-

ism violated the free speech provision contained in Title I

of the Labor-Management Reporting and Disclosure Act

[App. C 12]. It granted leave to appeal to the New York

State Court of Appeals. The Court of Appeals, after

considering the parties’ arguments as to the applicability

of the Railway Labor Act and the LMRDA, affirmed the

order of the Appellate Division, thus holding that the

Union could not impose fines on its members for advocat-

ing dual unionism [App. A 7].

C. The Decision Below.

The Court of Appeals, in denying the enforcement of

union discipline through fines against members supporting

a rival Union, concluded that the enforcement of a provi-

sion against dual unionism would preclude or deter em-

ployees (who are members but not officers of the Union *)

* Since two of the respondents were no longer serving in their

former capacity as officers at the time they engaged in dual unionist

activity, the court noted that it did not reach the question of whether

the union could discipline its officer members for such conduct.

from seeking by otherwise legitimate means to replace an

incumbent collective bargaining representative with an-

other, and that such discipline is not reasonably required

for the protection of the legitimate interests of the incum-

bent Union. Therefore, such conduct on the part of the

IAM violated the ‘‘free speech’’ provisions of the Labor-

Management Reporting and Disclosure Act (29 U |S. C.

§411(a)(2)) [App. A 5]. |

Additionally, the Court concluded that the conduct of

the IAM denied its members the right of freedom of choice

as to their bargaining representatives, thereby limiting

the freedom of association among employees, in violation

of the Railway Labor Act (45 U. S. C. §151(a)) [App.

A 5).

Reasons for Granting the Writ

The decision of the Court of Appeals is a major de-

parture from the estabiished national labor policy which

recognizes that the chosen union must have the authority

to protect against erosion of its status as collective bar-

gaining representative through reasonable discipline of

members who violate its legitimate rules. Union members

who openly support, and campaign in behalf of, a rival

organization present the gravest threat to the Union’s

continued existence as an institution by undermining its

majority status. This concern has almost invariably

prompted unions to provide in their constitutions and by-

laws for the imposition of disciplinary penalties on mem-

bers who engage in dual unionist conduct. The decision of

the Court of Appeals in denying enforcement of such disci-

pline has serious potential effect on the national labor

policy which is intended to develop and assure the stability

of labor organizations. In the light of the importance of

the questions presented, review by this Court is clearly

warranted.

piygl

(A) The Decision of the Court of Appeals Conflicts—

With the Principle, Embodied in Decisions of _

This Court, That Unions May Impose and Col-

lect Disciplinary Fines for Breaches of Legiti- ~

mate Union Rules. ae

The Court has previously examined the question of ~a

union’s right to impose discipline on its members who-

have violated union rules. These cases have arisen in the

context of the National Labor Relations Act; nevertheless—

the rationale of each of those cases is applicable to the

case at bar.*

In NLRB vy. Allis-Chalmers Mfg. Co., 388 U. S. 173

(1967), the question presented was whether a Union which

fined members for crossing union picket lines established

in support of a lawful strike and which attempted to col-

lect the fines by Court action, restrained or coerced em-

ployees thereby in the exercise of rights guaranteed by

Section 7 of the National Labor Relations Act. The

Court held that imposition of the fines was permissible

Union conduct.

* The National Labor Relations Act provides a different statu-

tory scheme from that of the Railway Labor Act, which has no

provision comparable to §8(b)(1)(A) of the National Labor Rela-

tions Act. That section makes it an unfair labor practice for a

union to “restrain or coerce” employees in the exercise of the rights

guaranteed in section 7 of the same statute. The NLRB case

law which has developed as the Board has applied §8(b)(1)(A)

to a variety of union conduct has turned on whether or not the

union, in imposing discipline on its members, has violated that

statutory section. The NLRB and the courts have attempted to

harmonize the restrictions of §8(b)(1) with the proviso to the same

section, i.e., that the restrictions contained therein shall not impair

the right of the union to establish its own rules with respect to

the acquisition or retention of membership.

The 8(b)(1)(A) cases evidence the kinds of conflict that have

developed in the effort to balance Congressional concern with both

the rights of individuals in their relations with their unions, and

the underlying policy of avoiding impairment of the union as an

institution.

Section 7 of the National Labor Relations Act provides

that employees shall have the right to self-organization

and to engage in concerted activities for the purpose of

collective bargaining, or to refrain from any such activi-

ties. Employees’ rights guaranteed under Section 7 are

limited only to the extent that they may be affected by a

union shop provision as authorized under the statute.

Section 8(b) of the Act makes it an unfair labor practice

for a union to restrain or coerce employees in the exercise

of rights guaranteed by Section 7. A proviso to Section

8(b) states that ‘‘This paragraph shall not impair the

right of a labor organization to prescribe its own rules

with respect to the acquisition or retention of member-

ship therein. . . .’’ '

‘The Court carefully examined the limitation on union

discipline intended by Sections 7 and 8(b) of the Act and

concluded that traditional, internal union discipline in gen-

eral, and disciplinary fines in particular, were not pro-

hibited by the statutory limits of Section 8(b).

The Court said:

‘*National labor policy has been built on the prem-

ise that by pooling their economic strength and

acting through a labor organization freely chosen

by the majority, the employees of an appropriate

unit have the most effective means of bargaining

for improvement in wages, hours, and working

conditions. The policy therefore extinguishes the

individual employee’s power to order his own rela-

tions with his employer and creates a power vested

in the chosen representative to act in the interests

of all employees.

Congress has seen fit to clothe the bargaining repre-

sentative with powers comparable to those possessed

by a legislative body both to create and restrict

the rights of those whom he represeuts. . . . Steele

v. L&éN R. Co., 323 U. S. 192, 202’’ (at 180).

The essential point of the Court’s analysis was its

statement that ‘‘Integral to this federal labor policy has

been the power in the chosen union to protect against

erosion of its status under that policy through reasonable

discipline of members who viclate rules and regulations

governing membership”’ (at 181).

Having held that the power to levy fines and otherwise

discipline members is an integral part of federal labor

policy, the Court went on to hold that Court enforcement

of fines was proper. It referred to the contract theory

of union-member relationship and stated that:

“‘The efficacy of a contract is precisely its legal

enforceability. A lawsuit is and has been the

ordinary way by which performance of private

money obligations is compelled ... There may be

concern that court enforcement may permit the col-

lection of unreasonably large fines. However, even

were there evidence that Congress shared this con-

cern, this would not justify reading the Act also

to bar enforcement of reasonable fines’*:(at 192,

193).

Following the Court’s decision in <Allis-Chalmers, it

was presented with a related question—whether the im-

position of fines upon Union members for violation of

production ceilings established by the Union constituted

‘‘restraint’’ or ‘‘coercion’’ within the meaning of Section

8(b)(1). In Scofield v. NLRB, 394 U. S. 423 (1969) the

Court reaffirmed the view of Allis-Chalmers that discipline

to enforce a legitimate union interest did not contravene

any policy of the Act. Further cases, NLRB v. Granite

State Joint Board, Textile Workers Union of America,

Local 1029, AFL-CIO, 409 U. S. 213 (1972), :and Booster

Lodge No. 405, IAMAW, AFL-CIO v. NLRB, 412 U. S.

84 (1973) held that the Union’s power to impose dis-

cipline ended with a members resignation privr to en-

gaging in the proscribed conduct, since the underlying

contractual basis between the parties was removed. In

NLRB v. Boeing Co., 412 U. S. 67 (1973), the Court held

that the reasonableness of an otherwise lawful fine was an

internal matter, not affecting the individual’s status as

an employee, and beyond NLRB authority to regulate.

The Court made clear that Section 8(b)(1)(A) was not

intended to give the NLRB power to regulate internal

union affairs, including the imposition of disciplinary

fines with their consequent court enforcement against

members who violated the Union’s constitution and by-

laws. It referred to its earlier examination of the legisla-

tive history of that section in Allis-Chalmers and re-

iterated that it was not intended to permit intrusion into

the internal affairs of unions.

Thus, a review of the law developed since Allis-Chalmers

leads to the inevitable conclusion that there is no statu-

tory basis (even under the scheme of the National Labor -

Relations Act with the 8(b)(1)(A) provisions not present

in the Railway Labor Act) for interference with the im-

position of discipline for the enforcement of a legitimate

union interest.

The Court of Appeals failed to comprehend that the

Union’s unquestioned legitimate interest in maiutaining

its very existence must include preserving the outward

manifestations of solidarity in the face of the employer.

If the union cannot do this, and members are allowed to

openly support a rival union, then the national labor

Re _——

policy sanctioning the ‘‘power in the chosen union to

protect against erosion of its status’’ will have been

severely debilitated.

Moreover, the Court of Appeals arrogated to itself a

legislative function that is solely within the power of

Congress; that is, to amend the Railway Labor Act to

make union discipline for dual unionism unlawful. Con-

gress has rejected far less drastic amendments, and thus

to hold that such intention may be read into the statute

is wholly unwarranted.

( B) The Decision of the Court of Appeals Conflicts

With the National Labor Policy Clearly Man-

dating the Right of Unions, Under Title I of the

LMRDA, to Establish and Enforce Rules to

Protect Themselves as Institutions Without

Judicial Interference.

The Court of Appeals, by denying the IAM the right to

discipline members who sought to undermine its status

as collective bargaining representative, misperceived the

legislative intent of the proviso to the ‘‘free speech’? pro-

vision of Title I of the Labor-Management Reporting and

Disclosure Act [29 U. S. C. §411(a)(2)].

During Congressional debate prior to the enactment of

the LMRDA, it became clear that even so valued a right

as free speech had to be subject to limitation when it

involved speech advocating undermining the Union and its

cause (105 Cong. Rec. 6719-6726). Congress specifically

reserved the rights to unions, therefore, to enforce rules

as to the responsibility of a member toward the organiza-

tion as an institution.

While such a broad proviso can be subject to judicial

refinement, commentators on the newly enacted provisions

of the LMRDA found no difficulty in concluding that dual

urionist conduct was intended to destroy the Union, and

was the clearest possible violation of a member’s responsi-.

bility toward the Union. In commenting upon the ‘‘free

speech’’ provision of Title I and its proviso, Professor

Archibald Cox stated: .

sé

. . . dissent in a Union, like treason in a Nation,

must be suppressed if the purpose is to destroy the

Union, encourage a rival, or bring about the vio-

lation of legal or contractual relations.’’ Cox, In-

ternal Affairs of Labor UWnions, 58 Mich. L. Rev.

819 at 834-35 (1960).

The destructive nature of dual unionist conduct has been

recognized by the federal courts. In Sawyers v. Grand

Lodge, IAM, 279 F. Supp. 747 (ED Mo. 1967), a case

which the Court below distinguished on the ground that

expulsions rather than fines were involved, several mem- |

bers of an IAM local advocated disaffiliation with the

IAM and affiliation with a rival union. The offending

members were found guilty of espousing dual unionism

and expelled. In upholding the Union’s discipline, the

Court in Sawyers held:

‘‘When local officers encourage local members to

break away from the national organization and

form an independent union, it clearly undermines

the responsibility of local members to the national

organization and threatens the enforcement of con-

tractual obligations. Therefore, the advocation of |

dual unionism is not protected by Title I, LMRDA,

or Section 7, NLRA”’ (at 756).

The Court of Appeals placed great reliance upon a Fifth

Circuit case, Airline Maintenance Lodge 702, IAM vy.

Loudermilk, 444 F. 2d 719 (5th Cir. 1971), which denied

the right of a Union to collect a fine from a member

15\

engaged in dual unionism and who belonged to the union

pursuant to a union shop provision. The court, in Louder-

milk, justified reaching a decision contrary to the prin-

ciples enunciated in Allis-Chalmers and Scofield by citing

cases arising under the unfair labor practice sections of

the National Labor Relations Act, which were clearly in-

applicable. As stated previously, the Railway Labor Act

makes no provision for unfair labor practices. Had Con-

gress intended to impose unfair labor practices on unions

covered by the Railway Labor Act, it could have done so;

it did not. The Fifth Circuit also relied upon the decision

in Salzhandler v. Caputo, 316 F. 2d 445 (2d Cir. 1963).

‘Salzhandler, unlike Loudermilk and the case at bar, dealt

with a member whose activities were confined to political

criticism of officials of the union in the course of union

meetings and not to dual unionism, espoused outside the

union hail.

The Court of Appeals’ reliance upon Title I of the

IMRDA as a defense to a fine for advocating dual unionism

is misplaced in light of the clear policy of Congress not to

intrude too deeply into union internal affairs.

In adopting the LMRDA, the Senate recognized the

following principles:

‘1, The Committee recognized the desirability

of minimum interference by government in the in-

ternal affairs of any private organization. .

Moreover, in establishing and enforcing statutory

standards, great care should be taken not to under-

mine union self-government or weaken unions in

their role as collective bargaining agents.

2. Given the maintenance of minimum demo-

cratic safeguards and detailed essential information

about the union, the individual members are fully

competent to regulate union affairs. The Committee

strongly opposes any attempt to prescribe detailed

procedures and standards for the conduct of union

business. .. .”’ (S. Rep. No. 187; 86 Cong. Ist Sess.

7 (1959)).

In Boilermakers v. Hardeman, 401 U. S. 233 (1971), reh.

den. 402 U. S. 967 (1971), this Court, in reviewing stand-

ards of judicial intervention in relation to a nnion’s author-

ity to interpret its own regulations, recognized the union’s

right to determine the scope of offenses warranting dis-

cipline of its members. The federal courts had earlier

held, as in Hardeman, that Title I was not a basis of

judicial intervention in internal matters. See, e.g. Gurton

v. Arons, 339 F. 2d 371 (2d Cir. 1964). The decision of

the court below plainly conflicts with established precedent,

frustrates the legislative intent of the LMRDA, and effec-

tively amends federal labor law.

Departure From the Meaning of the “Freedom

of Association” Provision of the Railway Labor

Act.

The Railway Labor Act, under which the parties oper-

ated, was specifically amended in 1951 in order to permit

union shop provisions to be written into collective bar-

gaining agreements. Until 1951, the Act did not contain

such provisions; the legislative history of the amendment

makes clear that the omission of a union shop provision

in the earlier sections of the statute was deliberate and for

the purpose of avoiding the continued use of the device of

company unions in the railway industry as a method of

depriving employees of the right to bargain collectively.

S. Rep. No. 2262, 81st Cong. 2d Sess. 3 (1950). Section

151(a) of the Act, which states that among the general

purposes of the Act is ‘‘to forbid any limitation upon

freedom of association among employees or any denial as

a condition of employment, or otherwise, of the right of

employees to join a labor organization . . .’’ was part of

the earlier text. The Union shop amendment expressly

stated that it applied, ‘‘notwithstanding any other provi-

sions of this chapter... .’’

The entire history of the Railway Labor Act, and its

application, of which the Court below failed to take cog-

nizance, has been one of concern for avoidance of employer

interference with such rights. There is nothing in the

statute, nor in the case law, to suggest that a union

mémber’s right to organize in behalf of a rival union is

protected by the ‘‘freedom of association’’ provision of

the Railway Labor Act (45 U.S. C. §151(a)).

(D) The Decision of the Court of Appeals Fails to

Recognize the Effect of the Union Shop Pro-

vision Upon Union Membership Obligations.

While the Court of Appeals failed to deal explicitly

with the effect of the union shop provision upon union

membership obligations, except as it referred to Louder-

milk, the decision cannot be read without reference to the

fact that respondents were required to join the union in

accordance with the Railway Labor Act.

The purpose of the union shop provision of the Rail-

way Labor Act (45 U. 8. C. § 152 (Eleventh) is to permit

the union to maintain sufficient organizational integrity so

as to fulfill its statutory responsibilities by requiring

employees to share the costs of negotiating and adminis-

tering collective agreements and the costs of the adjust-

ment aud settlement of disputes. 1AM v. Street, 367 U.S.

740, 764 (1961). Arguments against the use of the union

shop as a device for achieving such purposes have been

rejected by this Court, which noted that the coercive

element of the union shop in requiring membership sup-

port of their unions had een found appropriate by Con-

gress and thus was not the concern of the judiciary. Rai-

way Employees Dep’t. v. Hanson 351 U. 8. 225, 234 (1956).

The compulsion of membership by a union security pro-

vision does not relieve the member of the obligations of

union membership. The Court in Allis-Chalmers recog-

nized this and stated:

‘*But the relevant inquiry here is not what moti-

vated a member’s full membership [i.e. voluntary

choice or a union security provision] but whether

the Taft-Hartley amendments prohibited discipli-

nary measures against a full member. .. . Allis-

Chalmers offered no evidence in this proceeding that

any of the fined employees enjoyed other than full

union membership. We will not presume to the

contrary.’’ (at 196).

If a union member does seek to limit his obligations to

the union and retain employment, he may do so voluntarily

by resigning and merely tendering the periodic dues

required. The Court has previously held that member-

ship as a condition of employment under a union security

provision is ‘‘whittled down to its financial core.’’ NLRB

v. General Motors Corp., 373 U. S. 734, 742 (1963).

The Court of Appeals, by placing great reliance upon

Loudermilk, implicitly adopted a position sanctioning

greater ‘‘protection’’ from union obligations for those

who retain their membership and then claim, when it is

convenient to do so, that they have dune so ‘‘involun-

tarily.’’ Such a posture is both unrealistic, by virtue of

the prevalence of union security provisions, aud danger-

ous, as it would inevitably prevent a union from main-

taining the stability and solidarity necessary to assure the

objectives of the Act and to function in its role as statu-

tory collective bargaining representative.

CONCLUSION

For all the foregoing reasons, the petition for a Writ

of Certiorari should be granted.

Respectfully submitted,

SterHEeN C. VLADECK

Vuiapeck, Euias, Viaveck & Lewis, P. C.

Attorneys for Petiteoner

1501 Broadway,

New York, N. Y. 10036

and

Puiato E. Papps

1300 Connecticut Avenue, N. W.

Washington, D. C. 20036

General Counsel,

International Association of

Machinists and Aerospace

Workers, AFL-CIO

STEPHEN C. VLADECK

JupituH P. VLADECK

Rosert L. JAuvtTis

of Counsel

APPENDIX A

Opinion of the New York State Court of Appeals

STATE OF NEW YORK

COURT OF APPEALS

Opinion

2 ; No. 318 73

Constantine Bauvas, as President of Lodge No. 1894,

International Association of Machinists & Aerospace

Workers, AFL-CIO,

Appellant,

vs.

MatTrHew McKernan,

Respondent.

(And 2 other Actions)

JONES, J.:

We are asked to uphold the imposition of fines by a

union against three of its members for activity described

as dual unionism.

The three respondent union members were aircraft

mechanics. Two were employed by National Airlines and

the third was employed by Eastern Airlines. Each was

required to maintain membership in the Union, Lodge

1894, International Association of Machinists and Aero-

space Workers, AFL-CIO [IAM], pursuant to the union

shop provision in the contracts with the airlines, the

inclusion of which provision is expressly authorized by

the Railway Labor Act, 45 U.S. C. § 152(11).

DENT eeepc aa a LEN IL ee EN SE ET REN BISE S OIM MDPC ROR RERRIS

Appendix A

After periods of employment and membership in Lodge

1894 varying from four to fourteen years, each of the

three respondents became an adherent of a rival union,

Aircraft Mechanics Fraternal Association [AMFA]. In

July, 1967 the three mechanics actively supported AMFA

in an election in which AMFA sought to displace IAM as

the bargaining representative of the aircraft mechanics

employed by National Airlines. Lodge 1894 won the elec-

tion, whereupon some of its members filed charges against

the three respondents based on alleged violation of Sec-

tion 3 of Article L of the IAM Constitution which provides

in pertinent part:

‘‘The following actions or omissions shall constitute

misconduct by a member which shall warrant a

reprimand, fine, suspension and/or expulsion from

membership * * *:

‘*Attempting, inaugurating, or encouraging seces-

sion from the I. A. M. or advocating or encourag-

ing or attempting to inaugurate any dual labor

movement * * *,’’

No contention is made that the respondents did not violate

the proscriptions of this constitutional provision.

Written notice of the specific charges were given each

respondent and hearings were duly held before trial com-

mittees of Lodge 1894. The trial committees recommended

that each of respondents be found guilty of violating the

constitutional proscription of Section 3, and reommended

fines as follows:—McKiernan, $1,000; Carroll, $3,000;

Colon, $3,000. At a membership meeting a majority of

the members found each respondent guilty. While the

recommendation as to the fine against Colon was accepted,

Appendix A

the recommendations as to the fines against McKiernan

and Carroll were rejected. On appeal, however, the Inter-

national President reversed and accepted the recommenda-

tions as to the McKiernan and Carroll fines.

When the fines were not paid, appellant-plaintiff, as

President of Lodge 1894, instituted the present proceeding

for their collection. The New York City Civil Court for

Queens County granted partial summary judgment for

appellant as to the issue of liability, ordered that the

issue of the reasonableness of the fines be left to the trial

court as an issue of fact, and denied respondents-defend-

ants’ cross motions for summary judgment. On appeal the

Appellate Term for the 2nd and 11th Judicial Districts,

reversed and granted summary judgment for respondents-

defendants. On further appeal the Appellate Division,

Second Department, affirmed, but granted leave to appeal

to our Court. We affirm the order of the Appellate Divi-

sion, thus holding that this union could not impose fines

on its members for dual unionism in the circumstances of

this case.

The courts of our State generally have supported the

enforcement of union discipline other than when to do so

would operate to suppress criticism or politica! activity

within the union. (See The Law of Union Discipline:

What the Courts Do In Fact, 70 Yale L. J. 175; Madden

v. Atkins, 4 N Y 2d 283 [holding expulsion of union mem-

bers for internal political opposition illegal]). The issue

now before us, of course, is whether on a proper balancing

of the competing interests of the union and the interests of

its individual members, a union proscription against dual

unionism may be enforced by the imposition of fines

against the offending members.

Appendix A

The Railway Labor Act lists as among its purposes:

‘*To forbid any limitation upon freedom of associa-

tion among employees,’’ and ‘‘to provide for the

complete independence * * * of employees in the

matter of self organization to carry out the pur-

poses of this Act * * *.’’ (45 USC § 15la.)

It does not, however, contain any express parallel to Sec-

tion 8(b)(1)(A) of the National Labor Relations Act

which makes it an unfair labor practice for a union to

‘restrain or coerce employees in the exercise of the rights

guaranteed in section 7’’—the rights to self-organiza-

tion and to engage in concerted activities for the purpose

of collective bargaining. (29 U. S. C. $158 [b] [1] [A].)

The Labor Management Reporting and Disclosure Act,

applicable here, provides:

‘Every member of any labor organization shall

have the right to meet and assemble freely with

other members; and to express any views, argu-

ments or opinions * * *: Provided, that nothing

herein shall be construed to impair the right of a

labor organization to adopt and enforce reasonable

rules as to the responsibility of every member

toward the organization as an institution * * *.”’

[29 U. S. C. § 411(a)(2).]

We conclude that a rule which if enforced would pre-

clude or deter the right of employees (who are members

but not officers of the union) to seek by otherwise legiti-

mate means to replace an incumbent bargaining agent

with another collective representative is not reasonably

required for the protection of the legitimate interests of

Appendix A

the incumbent union, and is accordingly violative of this

provision of the Act. To say that the responsibilty of

each union member is always and in all circumstances to

support the current bargaining agent would be effectively

to deny to the members the right of freedom of choice as

to their bargaining representative. To sanction such a

rule would be to impose a limitation upon the freedom of

association among employees, in violation of the Railway

Labor Act.

This is not an instance in which the activity of the

union members is designed and caleulated to advance the

interests of the employer as against those of the union.

In that situation the activity of the members can indeed

be characterized as primarily destructive of the union.

In such situations courts have upheld the right of the

union to discipline the offending member (Price v. NLRB,

373 F 2d 443; Tawas Tube Products, 151 NLRB 46),

although in the same situation the imposition of fines has

been held impermissible (VLRB v. IMAW Local 125

[Blackhawk Tanning |, 442 F 2d 92). Nor is it an instance

in which the union may legitimately fine its members for

failure to support a duly adopted position of the union

vis-a-vis the employer (Scofield v. NLRB, 394 U. S. 423

[violation of a production ceiling established by the

union]; NLRB v. Allis-Chalmers Mfg. Co., 388 U. S. 175

[crossing picket lines established by the union in support

of a lawful strike]) (Cf. Florida Power & Light Co. v.

I. B. E. W., Local 641, —— U.S. [decided June 24,

1974]).

The present situation conceptually is more to be likened

to the recognized right of union members to bring unfair

labor practice charges against the union (Cf. NLRB y.

Marine Shipbuilding Workers, 391 U. S. 418; Charles 8S.

Skura, 148 NLRB 679). In that instance, as here, the

Appendia A

contested issue is between the rights of the individual

members and the interests of the union. The rights and

interests of the union as against third parties are only

tangentially involved. This being so we hold that by

constitutional provision the union may not in the guise of

an asserted contractual restriction foreclose the individual

members from the exercise of their legitimate right to

freedom of choice of their bargaining agent. If the rela-

tionship between the union and its members be recognized

as including in addition to contractual rights, substantial

fiduciary obligations on the part of the union to its mem-

bers (Bradley v. O’Hare, 11 A D 2d 15), the fiduciary

may not advance its self-interest at the expense of the

rights of the union members to whom its fiduciary respon-

sibility runs.

In a case squarely in point, the United States Court of

Appeals for the Fifth Circuit held that the imposition of

a fine on a union member for joining and supporting

another union was an invalid infringement on th rights

of the union member under the provision of the Labor

Management Reporting and Disclosure Act quoted above

(29 U. S. C. § 411 [a] [2]) (Lodge 702, IAM v. Louder-

milk, 444 F 2d 719). In that case an Eastern Airlines’

pilot, a member of Lodge 702, IAM, pursuant to a union

shop agreement, nonetheless became president of and

worked for AMFA in an unsuccessful attempt to bring

about the replacement of IAM as bargaining agent at

National Airlines. Notwithstanding that the union mem-

ber’s conduct concededly violated the provisions of the

IAM constitution, the court refused to enforce collection

of the fine imposed by the union on the dissident pilot.

We see no significant difference between the holding in

Loudermilk and the determination at the Appellate Divi-

sion in the present case. The holding in Tri-Rivers

Marine Engineers Union (U. S. Steel), 189 NLRB 838,

ry, ener Samer

Appendia A

is to the same effect.1. (Cf. Lodge 113, IAM [American

Hospital Supply Corp.\, 207 NLRB, No. 127; District

Lodge No. 837, IAM [McDonnell Douglas Corp.|, 206

NLBEB, No. 79.)

On principle we conclude that support of a rival union

is a legitimate expression of member dissatisfaction with

an incumbent collective representative, and involves the

exercise of a right of the individual member which cannot

be denied by the union irrespective of an explicit provi-

sion of the union constitution to the contrary.? On this

view of the case we do not reach the other issues tendered

by the parties.

The order of the Appellate Division should be affirmed.

Order affirmed, with costs. Opinion by Jones, J. All

concur.

1 We are not unmindful of the decision in Sawyers v. Grand Lodge,

1AM, 279 F. Supp. 747, in which the right of a union to expel an

officer for dual unionism activities was upheld.

2 We note, but hold to be without significance in the context of

today’s airport-wide bargaining where as here the election, while at

a different airline, was at the same airport (LaGuardia), that the

pilot in Loudermilk and one of the mechanics in the case now before

us were engaged in activity in support of the rival union at an airline

(National in both instances) other than that at which he was em-

ployed (Eastern, again in both instances). Nor does appellant make

any point of this distinction. We also observe, but the record fails

to disclose the significance if any of the fact, that the union member-

ship voted not to accept the recommendations as to the imposition of

fines on the two National Airlines mechanics but to accept the recom-

mendation as to the fine against the Eastern mechanic.

Further we observe that while two of the mechanics here had at

one time been officers of Lodge 1894, their service in such capacity

had terminated well before the dual union activities here complained

of. Accordingly we do not reach and imply no view, as to the right,

if any, of the union to enforce discipline against its officer members

for joining and promoting a rival labor organization.

APPENDIX B

Order Granting Leave to Appeal to the

Court of Appeals

No. 2651

Constantine Ballas, as president of

Lodge No. 1894, International Asso-

ciation of Machinists & Aerospace

Workers, AFL-CIO, appellant,’ v.

Matthew McKiernan, responent.

Constantine Ballas, as president, etc.,

appellant, v. John P. Carroll, re-

spondent.

Constantine Ballas, as president, etc.,

appellant, v. Jose Antonio Colon,

respondent.

~ Motion by appellant for leave to appeal to the Court of

Appeals from an order of this court dated March 19, 1973,

which unanimously affirmed an order of the Appellate

Term, Second and Eleventh Judicial Districts, entered

October 13, 1971.

Motion granted.

In our opinion, questions of law have arisen which ought

to be reviewed by the Court of Appeals.

. Hopkins, Acting P. J., Munver, Marruscerio, Guiorra

| and Bensamin, JJ., concur.

Entered

May 1, 1973

Appendix B ’

Held in Kings County on May 1, 1973

Hon. James D. Hopkins

| Acting Presiding Justice

Hon. Frev J. MuNDER

Hon. M. Henry Martusce.lo

Hon. Frank A, GuLorta |

Hon. A. Davin BensaMIn

Associate Justices

dp.

Coystanting Bauias, as president of Lodge ‘No. 1894,

International Association of Machinists & Aerospace

Workers, AFL-CIO,

Appellant,

Matrruew McKernan,

; Respondent.

ConsTaNTINE BALLAs, as president, etc.,

Appellant,

Joun P, CaRRo.., 4

. Respondent.

Constantine Bauuas, as president, ete,

Appellant,

Jose Antonto Colon,

Respondent.

Appendix B

The above named Constantine Ballas, as president, etc.,

appellant, having moved for leave to appeal to the Court

of Appeals from an order of this court dated March 19,

1973, which unanimously affirmed an order of the Appel-

late Term, Second and Eleventh Judicial Districts, en-

tered October 13, 1971;

Now, upon the papers filed in support of and in opposi-

tion to said motion, and all the papers upon which the

appeal was heard; and due deliberation having been had

thereon; and upon the opinion and decision slip of the

court herein, heretofore filed and made a part hereof, it is:

Orperep that the motion is hereby granted, the court

being of the opinion that questions of law have arisen

which ought to be reviewed by the Court of Appeals.

Enter:

S/ Irvine N. SELKIN

Clerk of the Appellate Division

APPENDIX C

Opinion and Order of the Appellate Division,

Second Department

March 19, 1973

SUPREME COURT,

APPELLATE Diviston—SeEconp JuviciaL DEPARTMENT

Hopkins, Acting P.J., Munper, MartrusceLLo, GuLoTTA

and BenJaMIn, JJ.

ConsTaNTINE Bauias, as President of Lodge No. 1894,

Internationa! Association of Machinists & Aerospace

Workers, AFL-CIO,

Appellant,

MatrHew McKiernan,

Respondent.

CoNSTANTINE Bauuas, as President, ete.,

Appellant,

Jounx P. Carrot,

Respondent.

ConsTANTINE Bauuas, as President, etc.,

Appellant,

Jos—E ANTONIO CoLon,

Respondent.

—

Pepe BP OLLONLE! PELL LELIIL LLL LEAL TOE RNS ‘ oF Sr a EN ee NPR aE

Appendix C

AppgaL (by permission) from an order of the Appellate

Term for the Second and Eleventh Judicial Districts

(WituiaM B. Groat, P.J., and Cuartes Marcerr and Joun

E. Cong, JJ.), entered October 13, 1971, which (1) re-

versed an order of the Civil Court of the City of New

York, Queens County (Seymour Boyers, J.) dated August

27, 1970, (a) denying the joint motion for partial sum-

mary [sic] of the separate defendants in three actions, (b)

granting plaintiff’s cross motion for partial summary

judgment and (c) directing that the issue as to reasun-

ableness of the fines sought to be recovered by plaintiff

in these actions be left for trial; and (2) granted defend-

ants’ said joint motion for partial summary judgment.

Vladeck, Elias, Vladeck & Lewis (Judith

P. Vladeck of counsel), for appellant.

Surrey, Karasik, Morse & Seham (Martin

C. Seham, Fred C. Klein & Susan A.

Powers of counsel), for respondents.

MartusceLLo, J. The question on this appeal is whether

fines imposed by a labor union on members pursuant to

its constitution are judicially enforceable.

The plaintiff union commenced separate actions in the

Civil Court of the City of New York, Queens County, to

recover fines which it had levied by its own internal

processes against three of its members, the defendants.

The defendants are aircraft mechanics. Two of them

are employed by National Airlines and the other by

Eastern Airlines. Hach defendant became a member of

the plaintiff union by virtue of a union shop provision

in the particular collective bargaining agreement in force

between the union and his employer when he took such

Appendix C

employment. The union shop provision applicable to

defendants McKiernan and Carroll provided, as is au-

thorized by the Railway Labor Act (U. S. Code, tit. 45,

§152, subd. eleventh), that employees subject to its terms

‘*shall, as a condition of their continued employment

* * * become members of the Union within sixty (60)

calendar employment days * * * and thereafter shall

maintain membership in good standing in such Union.’’

(The provision as to defendant Colon was essentially the

same.)

All three defendants, though members of the plaintiff

union, nevertheless became adherents of a rival union,

Aircraft Mechanics Fraternal Association (AMFA). In

July, 1967, they actively supported AMF A in an election

in which AMFA sought to displace the plaintiff union as

the bargaining representative of the aircraft mechanics

employed by National Airlines.

The plaintiff union, however, won the election and

thereafter some of its members filed charges against the

defendants based on the defendants’ activities in that

election in favor of the rival union. After a trial they

were found guilty of dual unionism and were fined sums

ranging from $1,000 to $3,000. They refused to pay and

thereupon the union instituted the actions to collect the

fines imposed.

Following lengthy pretrial procedures, the defendants

jointly moved for partial summary judgment and the union

cross-moved for similar relief. The defendants’ motion

was denied. The union, however, was granted partial

summary judgment, with the direction that the reasonable-

ness of the fines be determined by the trial court as an

issue of fact. In an opinion in support of its decision

Appendix C

(Ballas v. McKiernan, 63 Mise 2d 432), the court stated

its findings on the issues raised to be as follows:

(1) that the defendants were members of the union;

(2) that the union’s constitution and by-laws con-

stituted a binding contract between the union and

its members;

(3) that the conduct for which the defendants were

fined was not protected by the First Amendment to

the Constitution of the United States; and

(4) that the court had jurisdiction over the actions

to collect the fines.

The defendants appealed to the Appellate Term and

that court reversed and dismissed the complaints, with the

following memorandum :

‘It was unlawful for plaintiff union to impose

a fine upon defendant-members for their activities

described as dual unionism (Airline Maintenance

Lodge 702, 1.4.M. v. Loudermilk, C. A. Fifth Cir.,

444 F 2d 719)’’ (N. Y. Law Journal, Oct. 8, 1971,

p. 20, col. 2).

A union’s constitution and by-laws constitute a con-

tract between the union and its members and define not

only their relationship but also the privileges secured

and the duties assumed by those who become members,

unless contrary to public policy (Fritsch v. Rarback, 199

Mise. 356; Lowe v. Feldman, 11 Mise 2d 8, affd. 6 A D 2d

684). Here, the union’s constitution defines improper

conduct of members and sets forth those acts or omissions

which constitute misconduct by a member and ‘‘which

shall warrant a reprimand, fine, suspension and/or ex-

Appendix C

pulsion”’ (art. L, §3). Specifically described as such mis-

conduct is the ‘‘advocating or encouraging * * * any dual

labor movement * * * or * * * giving support to * * *

organizations inimical to the 1.A.M. [the plaintiff union]

or its established policies and laws’’ (id.).

It cannot be disputed that the defendants’ conduct vio-

lated the union constitution. The significant issue, how-

ever, is whether or not the union had the right to fine

the defendants for engaging in activities described as

‘*dual unionism.”’

Airline Maint. Lodge 702, 1.A.M. & A.W. v. Loudermilk

(444. F. 2d 719), cited by the Appellate Term in its deci-

sion, involved an appeal from an order of a Federal

District Court dismissing a union’s action to collect a

fine imposed upon a union member pursuant to the union’s

constitution. The defendant Loudermilk was an employee

of Eastern Airlines. He became a member of the plain-

tiff union on August 28, 1959, by virtue of a union shop

agreement between the union and his employer, requiring

him, as a condition of his employment, to become a mem-

ber of the union within 60 days after the commencement

of such employment. In 1963 he joined and became presi-

dent of a rival union, Aircraft Mechanics Fraternal

Association (AMFA). In August of 1967 he actively

supported AMF A in an election where it sought to dis-

place the plaintiff union as the bargaining representative

of mechanics working for National Airlines. AMFA lost

the election to the plaintiff union.

As a result of his election activities in favor of the

rival union, Loudermilk was tried by the Trial Committee

of plaintiff union and was found guilty of dual unionism.

He was fined $500 and refused to pay. Thereafter the

union filed an action in a local court to collect the fine

Sp a at aa

Nal

peMaer

Appendix C

and Loudermilk had the action removed to the Federal

District Court.

The District Court granted Loudermilk’s motion for

summary judgment, holding that although a validly im-

posed fine pursuant to a union constitution is judicially

enforceable the fine involved was not validly imposed

since the charge of dual unionism had arisen out of activi-

ties protected by the free speech provision of the Labor-

Management Reporting and Disclosure Act of 1959

({LMRDA], § 101, subd. [a], par. [2] [U. S. Code, tit. 29,

§ 411, subd. (a), par. (2); also known as the Landrum-

Griffin Act]). That provision, so far as pertinent, is as

follows :

‘‘Bills of rights; constitution and bylaws of labor

organizations

“*(a) (1) * © &

‘*(2) Freedom of speech and assembly.—Every

meinber of any labor organization shall have the

right to meet and assemble freely with other mem-

bers; and to express any views, arguments, or

opinions; and to express at meetings of the labor

orge izations his views, upon candidates in an elec-

tion of the labor organization or upon any business

properly before the meeting, subject to the organi-

zation’s established and reasonable rules pertain-

ing to the conduct of meetings; Provided, that noth-

ing herein shall be construed to impair the right of

a labor organization to adopt and enforce reason-

able rules as to the responsibility of every member

toward the organization as an institution and to

his refraining from conduct that would interfere

. PT Ge PERC pee

aansraeeg tries 2 ———— RISER LNG UTE LNIM BIA EA YAN SRNL PR IEE

Appendix C

with its performance of its legal or contractual

obligations.

On appeal, the Court of Appeals, Fifth Circuit, affirmed.

It held that it was clear from the terms of the above-

quoted free speech provision of LMRDA that a union

member has the right to free speech inside or outside

of a union meeting, subject to the union’s right to adopt

and enforce reasonable rules as to the responsibility of

every member toward the union as an institution. The

court pointed out that National Labor Rel. Bd. v. Inter-

national & Allied W.U., Local No. 125 (442 F. 2d 92 [7th

Cir.]) had upheld a National Labor Relations Board deci-

sion that the union defendant in that case had violated

the unfair labor practice provision of the National Labor

Relations Act in imposing a fine on a member for cir-

culating a petition to decertify the union. There, the

court held that the fine was not a defensive measure for

the union’s protection, as expulsion would be, but punish-

ment to discourage the exercise of the right of access to

the board.

The Court of Appeals, Fifth Circuit, in Loudermik

concluded with the following rationale (444 F. 2d 719,

pp. 723-724, supra):

‘“‘The rights of a union member under this

statute must be balanced against the right pre-

served to the union to make rules as to the respon-

sibility of the member toward the union as an in-

stitution, and this balancing process must rest on

the facts. Loudermilk was compelled to join plain-

tiff union under the union shop agreement between

Eastern and plaintiff IAM. Some years later he

joined and became president of a rival union. He

SLOAN ROR REA

Appendix C

was fined for supporting the rival union, albeit in

connection with displacing IAM at another airline.

IAM did not choose to expel him or bar him from

meetings and the like, defensive actions which would

have protected IAM. Rather, LAM sought to com-

pel his allegiance by the imposition of a fine.

‘‘We think this exceeded the authority of the

union under the circumstances here which involve

compulsory membership under a union shop agree-

ment coupled with the free speech overtones which

are inherent in undertaking [sic] stemming from

dissatisfaction with one union and action seeking

to displace that union with another. As the dis-

trict court said with respect to this factor:

‘The Court has the responsibility of balancing

the defendant’s individual interest against that of

the union. If the plaintiff could impose a judicially

collectible fine upon a union member who had be-

come satisfied [sic] with the union’s representation

and sought to replace it with a rival, it could effec-

tively eliminate all criticism of its policies and fore-

close any challenge of its right to represent its

members. I believe that such a result would be

inconsistent with the intent of Congress at the time

it passed the Bill of Rights.’ ”’

The plaintiff urion here argues that pronouncements of

the Supreme Court of the United States in cases involving

union fines are dispositive of the issue as to the union’s

right to impose the fines in question and that Loudermilk

(supra), relied upon by the Appellate Term, is an un-

appealed Federal Court of Appeals decision incompatible

with such pronouncements and should not be followed.

Appendix C

In support of its argument the union cites National

Labor Rel. Bd. v. Allis-Chalmers Mfg. Co. (388 U. S.

175). The issue there, as stated by the court in that case,

was: ‘‘Whether a union which threatened and impesed

fines, and brought suit for their collection, against mem-

bers who crossed the union’s picket line and went to work

during an authorized strike against their employer, com-

mitted the unfair labor practice under section 8 (b) (1)

(A) of the National Labor Relations Act of engaging in

conduct ‘to restrain or coerce’ employees in the exercise

of their right guaranteed by §7 to ‘refrain from’ con-

certed activities’? (p. 176). In that case it appeared that

some members of a union which had called lawful eco-

nomic strikes at two of the defendant’s plants crossed

the picket lines during the strikes. The union charged

those members with violating its constitution and by-laws.

After a trial the union fined the men various amounts.

The defendant then filed unfair labor practice charges

against the union. The Supreme Court held that the im-

position of fines was within the power of the union. It

noted that integral to the Federal labor policy of vesting

unions with the power to order the relations of employees

with their employer has been the power of the chosen

union to protect against erosion its status under that

policy through reasonable discipline of members who vio-

late rules and regulations governing membership. Em-

phasing that union disciplinary power is ‘‘particularly

vital when the members engage in strikes,’’ the court said,

‘‘The economic strike against the employer is the ultimate

weapon in labor’s arsenal for achieving agreement upon

its terms, and ‘the power to fine or expel strikebreakers

is essential if the union is to be an effective bargaining

agent’ ’’ (p. 181).

C10

Appendix C

In Scofield v. National Labor Rel. Bd. (394 U. S. 423),

union members were fined and suspended by their union

for violating a union rule relating to production ceilings.

The employer then brought charges for unfair labor prac-

tices. The same basic issue that was raised in Allis-

Chalmers (supra) was also raised in Scofield. There, too,

it was held not to be an unfair labor practice to fine the

members for violating the rule regarding production ceil-

ings. The court noted that the law left a union free to

enforce a properly adopted rule which reflects a legitimate

union imterest, impairs no policy Congress has embedded

im the labor laws and is reasonably enforced against

union members who are free to leave the union and escape

the rule.

The court noted that, as in Allis-Chalmers, the union

members were subject to the discipline of an internal rule

which strengthened the union’s hand in bargaining and

in this respect benefitted both the members who obeyed

the rule and the non-members who did not [at bar the

situation is obviously different, since it is a union shop

and the defendants sought to organize and promote a

different union].

Clearly, Loudermilk (supra) is squarely in point with

the three cases at bar on the facts and should be followed

unless it was erroneously decided.

The gist of the appellant’s argument is that Allis-

Chalmers and Scofield should control the cases at bar and

that Loudermilk is incompatible with the holdings in these

cases.

I disagree with the appellant. It is clear that there

are two different situations and groupings of interest

presented by the Supreme Court cases and the Louder-

Cil

Appendix C

milk case. Further, the statutes involved in those cases

were different. In both Allis-Chalmers and Scofield the

claims were that the unions had committed unfair labor

practices in fining members for their activities. The un-

fair labor practices alleged were that the members in

Allis-Chalmers were compelled to strike or at least honor

the picket lines and that the members in Scofield were

compelled to maintain and not exceed production quotas.

In Loudermilk, on the other hand, the claim was that the

defendant member had been denied the right of free

speech and organization, which was set forth in the Labor- '

Management Reporting and Disclosure Act and was the

policy of this country, as a result of the Union’s attempt

to fine him under its internal procedures. —

With respect to the interests involved in the cases a

similar difference exists. In Allis-Chalmers and Scofield

the activities of the members in question were harmful to

the unions in their relationship with the employers. In

one case it hurt the lawful strikes and in the other it

affected production. Thus, the unions had lawful interests

to protect and those interests also protected the interests

of the unions’ members as employees of the companies in

question. In Loudermilk and in the cases at bar how-

ever, the actions of the members in question did not di-

rectly affect the unions in their relations with the em-

ployers, but rather affected the unions in their relations

with their members and other unions. Thus, while the

interests of the workers and members as individual em-

ployees were not affected, the interests of the union as

a viable institution were affected by the activities of

Loudermilk. There is nothing to support a conclusion

that Loudermilk’s activity was detrimental to his co-

workers.

C12

A ppendtz Cc

In view of the fact that Allis-Chalmers and Scofield

are factually different from Loudermilk, both as to the

activities involved and tke interests to be protected, I

find that Loudermilk is not inconsistent with the Supreme

Court cases. I agree with the reasoning in Loudermilk,

as did the Appellate Term, and conclude that it should

be followed. Accordingly, I hold that the fines involved

were not validly imposed since the charge of dual unionism

had arisen out of activities protected by the free speech

provision of LMRDA.

The order of the Appellate Term should be affirmed,

with $20 costs and disbursements to the respondents

jointly.

Hopkins, Acting P.J., Munper, GuLorta and Bensamin,

JJ., concur.

ee ae

A—September 25, 1972

923 E. Constantine Ballas, as president of Lodge No.

1894, International Association of Machinists &

Aerospace Workers, AFL-CIO, appellant, v.

Matthew McKiernan, respondent. —

Constantine Ballas, as president, etc., appellant

v. John P. Carroll, respondent.

Constantine Ballas, as president, etc., appellant,

v. Jose Antonio Colon, respondent.

Order of the Appellate Term, Second and Eleventh Judi-

cial Districts, entered October 13, 1971, affirmed, with $20

costs and disbursements to respondents jointly.

Opinion by Marrvusce..o, J. |

Hopkins, Acting P.J.,. Munpver, GuLorra and Bengamin,

JJ., concur. |

——_"

APPENDIX D

Order Granting Leave to Appeal to the

Appellate Division

No. 4270 Lv. App. from App. Term

At a Term of the Appellate Division of the

Supreme Court of the State of New York,

Second Judicial Department, held in Kings

County on January 12, 1972

Hon, James D. Hopkins,

| Acting Presiding Justice.

Hon. Frep J. MuNpDER,

Hon. M. Henry Marrusce..o,

Hon. Henry J. Latuam,

Hon. ArtHur D. Brennay,

Associate Justices.

Decision AND OrpER on Motion ror LEAVE To APPEAL

TO THE APPELLATE DIvISIoNn

ConsTaNTINE Ba.ias, as President, etc.,

Plaintiff,

Matraew McKiernan,

Defendant.

(and two other titles)

dy.

In the above-entitled cause, the above-named plaintiff,

having moved in this Court for leave to appeal thereto

Appendix D

from. an. order of ‘the Appellate Term of the Supreme

Court, Second and Eleventh Judicial Districts, dated Octo-

ber 4, 1971; .

Now, upon the papers filed in support of the motion

and papers filed in opposition or in relation thereto; upon

all the proceedings heretofore had herein; and the motion

having been duly submitted and due deliberation having

been had thereon, it is

OxpERED that the motion is hereby granted.

Enter:

Irvine N. SELKIn,

Clerk of the Appellate Division

January 12, 1972 No. 4270

APPENDIX E

Decision and Order of the Appellate Term for

the 2nd and 11th Districts

No. 97

Constantine Batias, as President of Lodge No. 1894,

International Association of Machinists and Aerospace

Workers, AFL-CIO, Respondent, v. Marraew Mc-

Kiernan, Appellant.

ConsTANTINE Bauias, as President, ete. Respondent, v.

Joun P. Carroii, Appellant.

ConsTaNTINE Baas, as President, etc., Respondent, v.

Jose Antonio Coton, Appellant.

Order and judgment in favor of plaintiff unanimously

reversed, without costs, and defendants’ motion for sum-

mary judgment in their favor dismissing the complaints

granted.

It was unlawful for plaintiff union to impose a fine upon

defendant-members for their activities described as dual

unionism (Airline Maintenance Lodge 702, 1AM v. Louder-

milk, C. A., Fifth Cir., 444 F 2d 719).

Appendix E

At a Term of the Appellate Term of the

Supreme Court of the State of New York for

the 2nd and 11th Judicial Districts, held in

Kings County, on the 4th day of October, 1971.

Cal. No. 97 Q

May 1971 Term

Present——

Hon. Wiuui1am B. Great,

Presiding Justice.

Hon. CHagLes Marcort,

Hon. Joun E. Cone,

Justices.

dp.

CoNSTANTINE Bauuas, as President of Lodge No. 1894,

International Association of Machinists & Aerospace

Workers, AFL-CIO,

Plaintiff-Respondent,

MattrHew McKernan, Joun P. Carrott, ANtHoNy Coon,

a/k/a Jose AntHONy CoLon, a/k/a Tony Coton,

Defendants-Appellants.

The above named Matthew McKiernan, et al., defend-

ants in this action, having appealed to this Court from an

Appendiz E

order and judgment of the Civil Court, City of New York;

County of Queens entered on the 27th day of August,

1970 and the said appeal having been submitted by Mr.

Martin C. Seham, of Counsel for the appellants, and sub-

mitted by Mr. [sic] Judith P. Vladeck, of Counsel for the

respondent, and due deliberation having been had thereon;

It is hereby ordered and adjudged that the order and

judgment of the Civil Court, in favor of the plaintiff

unanimously reversed, without costs and defendants’ mo-

tion for summary judgment in their favor dismissing the

complaints granted.

s/ Wham B. Great,

Presiding Justice, Appellate Term

APPENDIX F

Opinion and Order of the Civil Court, Queens County

CIVIL COURT OF THE CITY OF NEW YORK

County oF QUEENS

dy.

Index #24086/68

CONSTANTINE Batuas, as President of Lodge No. 1894,

International Association of Machinists & Aerospace

Workers, AFL-CIO,

Plaintiff,

against

MattrHew McKernan,

Defendant.

Index #18569/68

CoONSTANTINE Batuas, as President, etce.,

Plaintiff,

against

Joun P. CarRRoL.,

Defendant.

Index +#20789/68

ConsTANTINE Baas, as President, ete.,

Plaintiff,

against

Jose ANTONIO CoLon,

Defendant.

soil ianeescreceaiaaeieeeeiiaass SINT MR PLAS AE PELLET BL LS PEED

appendix I

Boyerrs, J.

These actions, consolidated solely for the purpose of

the motion and cross motion for partial summary judg-

ment herein essentially involve the claim of the plaintiff,

Lodge 1894, International Association of Machinists and

Aerospace Workers, AFL-CIO (hereinafter referred to as

the ‘‘Union’’) against three individual union members,

Matthew McKiernan, John P. Carroll and Jose Antonio

Colon (hereinafter referred to as ‘‘defendant-members’’)

for the collection of fines. The Union alleges that in

accordance with its constitution and by-laws, it conducted

hearings before its union trial committees which deter-

mined that defendant-members had engaged in conduct

inimical to the welfare of the Union. It is further alleged

that such conduct was contrary to the provisions of the

Union’s constitution and by-laws thereby subjecting the

defendant-members to ‘‘a reprimand, fine, suspension or

expulsion.’’ Fines were imposed in the amount of $3,000

as against two of the defendant-members and in the

amount of $1,000 as against the third defendant-member

which the defendant-members refused to pay.

Both the plaintiff Union and the defendant-members

agree that the critical issues involved in this action are

those of law, and are issues which should be determined

by the Court in deciding the instant motions. The salient

issues raised by the motions herein are (1) whether the

defendants’ membership in the plaintiff organization con-

stituted a contractual relationship that would subject the

defendant-members to the provisions of the Union’s con-

stitution and by-laws; (2) whether the defendant-members

had constitutionally protected rights to promote and sup-

port a rival Union as the collective bargaining agent; (3)

Appendix F

whether a $3,000 or $1,000 fine is unreasonable and im-

proper as a matter of law; and (4) whether the Civil

Court of the City of New York has the jurisdiction to

enterta’n plaintiff’s action to enforce the collection of such

fines.

The Union’s charge, against each of the three defend-

ants, was that while members of the plaintiff Union, they

supported, in varying fashion, a rival union to supplant

the plaintiff as collective bargaining representative of the

employees employed by National Airlines. The Union

claimed that this action by the defendant-members was

designed to undermine and impair the effectiveness of the

Union as the collective bargaining representative of all

union members and others whom it was required, by law

to represent or, at the very least had that effect.

The defendant-members contend that any ‘‘member-

ship’’ that may have existed in the plaintiff urion was

pursuant to a compulsory union shop provision. It is the

defendant’s position, therefore, that such involuntary

membership is not a sufficient contractual basis to support

a claim that an individual has waived his constitutional

privileges of free speech and his statutory rights of free-

dom of organization.

Contract in labor law is a term the implications of which

must be determined from the connection in which it ap-

pears. (J. 1. Case Co. v. National Labor Relations Board,

321 U. S. 332). The negotiations between union and

management result in what often has been called a ceol-

lective trade agreement, rather than a contract of employ-

ment. The employee becomes entitled by virtue of the

National Labor Relations .\ct somewhat as a third-party

Appendix F

benficiary to all benefits of the collective trade agreement.

The employee's relationship with the union is determined

by the union’s constitution and by-laws. The constitu-

tion and by-laws of an unincorporated association such as

plaintiff Union constitutes a binding contract between the

union and its member. (fritsch v. Rarbach, 199 Misc.

356, 98 N. Y. S. 2d 748; Lowe v. Feldman, 11 Mise. 2d 8,

168 N. Y. S. 2d 674, affirmed 6 App. Div. 2d 684, 174

N. Y. S. 2d 949).

In plaintiff’s memorandum in opposition to defendants’

motion (pages 7 through 15) references are made to de-

fendants’ examination before trial, which are not rebutted

in defendants’ reply affidavit, showing that the fined em-

ployees involved herein enjoyed full union membership.

Furthermore, the union shop provision requiring member-

ship support of their unions has been found appropriate

by Congress and thus was not the concern of the judiciary.

(Railway Employees v. Hanson, 351 U. S. 225). The Court

will not presume that the defendants enjoyed other than

full union membership.

National labor policy extinguishes the individual em-

ployee’s power to order his own relations with his em-

ployer and creates a power vested in the chosen repre-

sentative to act in the interests of all employees. ‘‘Thus

only the union may contract the employee’s terms and

conditions of employment, and provisions for processing

his grievances; . . . The employee may disagree with

many of the union decisions but is bound by them. ‘The

majority rule concept is today unquestionably at the center

of our federal labor policy.’ The complete satisfaction

of all who are represented is hardly to be expected.’’

(National Labor Relations Board, Petitioner y. Allis-

Appendix F

Chalmers Manufacturing Company et al, 388 U. S. 175,

180).

The Court is further exhorted by the defendant-members

to outrightly reject plaintiff’s action on the ground that

to permit the union to collect the fines would abrogate a

right paramount in our Constitution—that of freedom of

expression under the First Amendment. But, as Justice

Oliver Wendell Holmes aptly put it: ‘‘All rights tend to

declare themselves absolute to their logical extreme. Yet

all in fact are limited by the neighborhood of principles of

policy which are other than those on which the particular

right is founded, and which become strong enough to hold

their own when a certain point is reached.’’ (Hudson

County Water Co. v. McCarter, 209 U. S. 349, 355).

Thus, the right to freely express the support of another

union, sometimes called ‘‘dual unionism,’’ is counter-

balanced by the right of the union to protect itself from

extinction. While it is essential to assure democratic

conduct of union affairs and to protect the individual

member’s rights to free expression, at some point, there

must be a balancing of the individual’s rights against the

good of the group. This is particularly so where the

individual’s conduct could have the effect of destroying

the union to the detriment of its membership. The Court

finds this conduct to be decidedly different from the ex-

pression of dissatisfaction with the leadership of the

union and the exertion of efforts within the framework

of the Union to unseat the leadership. In the latter case,

the activity within the union to change the leadership is

and should be protected conduct, whereas, the support

and encouragement of a rival organization is a breach of

duty and obligation to the membership of the union and

Appendix I

should not receive protection of the law. To hold other-

wise would threaten the stability of the labor movement.

In National Labor Relations Board v. Allis-Chalmer

Manufacturing Co., supra, Mr. Justice Brennan speaking

for the majority of the Court in effect stated that the

union has the right to prescribe its own rule respecting

aquisition or retention of membership, to impose fines,

and to bring suit for their collection against members who

violate the provisions of the union’s constitution and by-

laws. The imposition of a fine and the court enforcement

of same is within the ambit of internal union affairs and

is a necessary consequence of the ‘‘contract theory”’ of

the union member relationship provided that the fine is

reasonable.

As to the reasonableness of the fine, the Court will leave

that determination to a trial court or jury as an issue

of fact.

Allis-Chalmers, supra, held that uncollected fines could

be recovered by suit in a civil court. This case provides

cogent support on the issue of jurisdiction by the Civil

Court of the City of New York to entertain the present

action herein.

Settle order on Notice.

Dated: May 16, 1970

s/ Seymour Boyers,

J.C. C.

Appendix F

ORDER AND JUDGMENT OF THE CiviL Court, QuEENS County

At a Special Term, Part I of the Civil Court

of the City of New York, held in and for the

County of Queens, at the Courthouse, 88-11

Sutphin Boulevard, in the County of Queens,

City and State of New York, on the 27th day

of August, 1970.

Present:

Hon. Seymour Boyer,

Justice.

Cal. No. A1644/69

Index No. 18569/68

CONSTANTINE Baas, as President of Lodge No. 1894,

International Association of Machinists & Aerospace

Workers, AFL-C1O,

Plaintiff,

agamst

JOHN P. CARROLL,

Defendant.

Cal. No. A1646/69

Index No. 20789/68

ConSTANTINE Balas, as President of Lodge No. 1894,

International Association of Machinists & Aerospace

Workers, AFL-CIO, !

Plaintiff,

agaist

AntTHony CoLon, a/k/a Jose ANTHONY CoLon,

a,k/a Tony Colon,

Defendant.

ids

Appendix F

Cal. No. A1646/69

Index No. 24086/68

Constantine Bawuas, as President of Lodge No. 1894,

International Association of Machinists & Aerospace

Workers, AFL-CIO,

Plaintiff,

against

MatrHew McKernan,

Defendant.

Defendants in each of the above captioned actions having

jointly moved for partial summary judgment, and the said

actions having been consolidated for the purpose of de-

fendants’ motion, and plaintiff in each action having cross-

moved for partial summary judgment, and the motions

having duly come on to be heard on the 17th day of March,

1970.

Now, upon reading the pleadings heretofore filed herein

and upon reading and filing the defendants’ notice of’

‘motion dated the 10th day of December, 1969, the affidavit

of Martin C. Seham, Esq., sworn to the 9th day of Decem-

ber, 1969, and the exhibits thereto attached, in support of

said motion and in opposition to plaintiff’s cross-motion,

and the cross-motion of plaintiff dated the 27th day of

February, 1970, and the affidavit of Judith P. Vladeck,

sworn to the 27th day of February, 1970, in support of said

cross-motion and in opposition to defendants’ motion, and

upon reading and filing the depositions of defendants John

Appendix F

P. Carroll, Anthony Colon, and Matthew McKiernan,

sworn to by each of said defendants the 27th day of

November, 1968 and the 6th day of February, 1969, and

the deposition of plaintiff, Constantine Ballas, sworn to

the 8th day of January, 1969, and after hearing Surrey,

Karasik, Greene and Seham, Esqs., attorneys for defend-

ants, by Martin C. Seham, Esq., of Counsel, in support of

defendants’ motion and in opposition to plaintiff’s cross-

motion, and Vladeck, Elias, Vladeck & Lewis, attorneys

for plaintiff, by Judith P. Vladeck, of Counsel, in opposi-

tion to defendants’ motion and in support of plaintiff’s

cross-motion, and due deliberation having been had thereon,

and upon reading and filing the opinion of the Court, it is,

upon motion of Vladeck, Elias, Viadeck & Lewis, attorneys

for plaintiff,

ORDERED, that the defendants’ motion for partial sum-

mary judgment be and the same hereby is denied; and it

is further

OrDERED, that the plaintiff’s motion for partial summary

judgment be and the same hereby is granted; and it is

further

ORDERED, that the issue as to the reasonableness of the

fines be left to the trial court as an issue of fact.

Enter

S/ Seymour Boyer

J.C. C.

APPENDIX G

Answers of Respondents [Raising Federal Questions]

ANSWER AND COUNTERCLAIM

CIVIL COURT OF THE CITY OF NEW YORK

CouNTY oF QUEENS

,™

ConsTANTINE Baas, as President of Lodge No. 1894,

International Association of Machinists & Aerospace

Workers, AFL-CIO,

Plaintiff,

agamst

Matruew McKernan,

Defendant.

Defendant, by his attorneys, Kopple & Seham, for his

answer to the complaint herein, states:

GENERAL DENIAL

1. First Affirmative Defense: Action is contrary to the

purpose and provisions of the Federal Railway Labor Act,

45 U.S. C. §151, et seq.

2. Second Affirmative Defense: Action is contrary to

the public policy of the State of New York, including New

York State Constitution, Article I, Section 17. |

3. Third Affirmative Defense: Fines were imposed in

a manner contrary to the procedures established by the

Plaintiff’s Constitution and By-Laws.

4. ¥'ourth Affirmative Defense: The contract upon which

the action is allegedly based was entered into involuntarily

and under duress.

_ Appendix G

o. Fifth Affirmative Defense: The procedures by which

the fines in question were imposed violated the defendant’s

right to due process guaranteed by the Federal and State

Constitutions.

6. Sixth Affirmative Defense: The procedures by which

the fines were imposed violated the provisions of the

Landrum-Griffin Act, 29 U. 8. C. §411.

As and for Defendant’s Counterclaim to the

Complaint Herein:

7. Plaintiff deliberately, intentionally and maliciously

deprived the defendant of his rights to self-organization

guaranteed by the New York Constitution and the Railway

Labor Act and did similarly deprive him of the procedural

protections of the Landrum-Griffin Act, to his damage in

the amount of $2,000.00, punitive damages being demanded

in the amount of $8,000 and injunctive relief being de-

manded against the continuance of the plaintiff’s acts.

Wuererore, defendant demands judgment dismissing the

complaint, together with the costs and disbursements of the

action, and that judgment be entered in his favor in the

amount of $2,000.00 compensatory damages, plus $8,000.00

punitive damages, and that an injunction issue against

the further acts of the plaintiff in depriving the defendant

of rights guaranteed to him under State and Federal Law.

Dated: August 14, 1968.

Koppete & Seam

Attorneys for Defendant

205 West 34th Street

New York, New York 10001

LO-5-4424

—y——

alppendia G

To:

Viabeck, Kuias, Prax kee, Viapeck & Lewis

Attorneys for Plaintiff

165 West 46th Street

New York, New York 10036

ANSWER AND COUNTERCLAIM

CIVIL COURT OF THE CITY OF NEW YORK

COUNTY OF QUEENS

Index No. 18567/68

—

CONSTANTINE Bauuas, as President of Lodge No. 1894,

International Association of Machinists & Aerospace

Workers, AFL-CIO,

Plaintiff,

agatnst

Joun P. Carrot,

Defendaut.

»™

Defendant, by his attorneys, Kopple & Seham, for his

answer to the complaint herein, states:

GENERAL DENIAL

1. First Affirmative Defense: Action is contrary to the

purpose and provisions of the Federal Railway Labor

Act, 45 U.S. C. $151, et seq.

2. Second Affirmative Defense: Action is contrary to

’ the publie policy of the State of New York, including New

York State Constitution, Article I. Seetion 17.

Appendix G

3. Third Affirmative Defense: Fines were imposed in a

manner contrary to the procedures established by the plain-

tiff’s Constitution and By-Laws.

4. Fourth Affirmative Defense: The contract upon which

the action is allegedly based was entered into involuntarily

and under duress.

o. Fifth Affirmtive Defense: The procedures by which

the fines in question were imposed violated the defendant’s

right to due process guaranteed by the Federal and State

Constitutions.

6. Sixth Affirmative Defense: The procedures by which

the fines were imposed violated the provisions of the -

Landrum-Griffin Act, 29 U. S. C. §411.

As and for Defendant’s Counterclaim to the

Complaint Herein:

7. Plaintiff deliberately, intentionally and maliciously

deprived the defendant of his rights to self-organization

guaranteed by the New York Constitution and the Railway

Labor Act and did similarly deprive him of the procedural

protections of the Landrum-Griffin Act, to his damage in

the amount of $2,000.00, punitive damages being demanded

in the amount of $8,000.00 and injunctive relief being

demanded against the continuance of the plaintiff’s acts.

Wuereror:, defendant demands judgment dismissing the

complaint, together with the costs and disbursements of the

action, and that judgment be entered in his favor in the

amount of $2,000.00 compensatory damages, plus $8,000.00

———

Appendix G

punitive damages, and that an injunction issue against the

further acts of the plaintiff in depriving the defendant of

rights guaranteed to him under State and Federal law.

Dated: June 28, 1968

Koppie & SeHAmM

Attorneys for Defendant

205 West 34th Street

New York, New York 10001

LO 5-4424

To:

Vuaveck, Euias, Frankie, Vuaveck & Lewis

Attorneys for Plaintiff

165 West 46th Street

New York, New York 10036

ANSWER AND CoUNTERCLAIM

CIVIL COURT OF THE CITY OF N EW YORK

CouNTY OF QUEENS

Index No. 20789/68

CoNSTANTINE Bauas, as President of Lodge No. 1894,

International Association of Machinists & Aerospace

Workers, AFL-CIO,

Plaintiff,

against

ANTHONY CoLon, a/k/a Jose Anthony Colon,

a/k/a Tony Colon,

Defendant.

»™

Appendix G

Defendant, by his attorneys, Kopple & Seham, for his

answer to the complaint herein, states:

GENERAL DENIAL

1. First Affirmative Defense: Action is contrary to the

purpose and provisions of the Federal Railway Labor Act,

45 U.S. C. $151, et seq.

2. Second Affirmative Defense: Action is contrary to

the public policy of the State of New York, including New

York State Constitution, Article I, Section 17.

3. Third Affirmative Defense: Fines were imposed in

a manner contrary to the procedures established by the

Plaintiff’s Constitution and By-Laws.

4. Fourth Affirmative Defense: The contract upon which

the action is allegedly based was entered into involuntarily

and under duress.

d. Fifth Affirmative Defense: The procedures by which

the fines in question were imposed violated the defendant’s

right to due process guaranteed by the Federal and State

Constitutions.

6. Sixth Affirmative Defense: The procedures by which

the fines were imposed violated the provisions of the

Landrum-Griffin Act, 29 U.S. C. $411.

As and for Defendant’s Counterclaim to the

. Complaint Herein:

7. Plaintiff deliberately, intentionally and maliciously

deprived the defendant of his rights to self-erganization

Appendix G

guaranteed by the New York Constitution and the Railway

Labor Act and did similarly deprive him of the procedural

protections of the Landrum-Griftin Act, to his damage in

the amount of $2,000.00, punitive damages being demanded

in the amount of $8,000.00 and injunctive relief being

demanded against the continuance of the plaintiff’s acts.

Wuererore, defendant demands judgment dismissing the

complaint, together with the costs and disbursements of the

action, and that judgment be entered in his favor in the

amount of $2,000.00 compensatory damages, plus $8,000.00

punitive damages, and that an injunction issue against the

further acts of the plaintiff in depriving the defendant of

rights guaranteed to him under State and Federal law.

Dated: June 21, 1968

Koppte & Seuam

Attorneys fer Defendant

205 West 34th Street

New York, New York 10001

LO 5-4424

To:

VLaDECK, Eis, Frankur, Viaveck & Lewis

Attorneys for Plaintiff

165 West 46th Street

New York, New York 10036

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.