# 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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1974
- **Citation:** 419 U.S. 1034

## Text

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; Supreme Court of the Whiter States. cer

October Term, 1974

No.....€4 = 400

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

(C) The Decision of the Court of Appeals Effects
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

17
19

Al

Bl

Cl

D1

El

F1

\
\ 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
i,
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.

»™
Vv

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,

2

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. ’’

4

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

9

(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.

10

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

11

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

12

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

14

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\

a

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

16

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.

(C) The Decision of the Court of Appeals Effects a
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

17

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

18

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-

19

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

Al

APPENDIX A
Opinion of the New York State Court of Appeals

STATE OF NEW YORK
COURT OF APPEALS

Opinion

dy
vv

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.

ap
-

(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

A2

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,

A3

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.

A4

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

AD

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

AG

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

AZ

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.

Bl

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

B2

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

1

dp.
¥

Coystanting Bauias, as president of Lodge ‘No. 1894,
International Association of Machinists & Aerospace
Workers, AFL-CIO,

Appellant,
v.

Matrruew McKernan,
; Respondent.

ConsTaNTINE BALLAs, as president, etc.,

Appellant,
v.

Joun P, CaRRo.., 4
. Respondent.

Constantine Bauuas, as president, ete,
Appellant,

V.

Jose Antonto Colon,

Respondent.

de
a

B3

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

Cl

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.

dy
od

ConsTaNTINE Bauias, as President of Lodge No. 1894,
Internationa! Association of Machinists & Aerospace
Workers, AFL-CIO,

Appellant,
v.

MatrHew McKiernan,
Respondent.

CoNSTANTINE Bauuas, as President, ete.,
Appellant,

V.

Jounx P. Carrot,
Respondent.

ConsTANTINE Bauuas, as President, etc.,

Appellant,
v.

Jos—E ANTONIO CoLon,
Respondent.

ah
—

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

C2

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

¢

C3

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

C4

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-

Cd

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

C6

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

C7
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

C8

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.

C9

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. |

——_"

D1

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

s
vr

ConsTaNTINE Ba.ias, as President, etc.,
Plaintiff,

Matraew McKiernan,
Defendant.
(and two other titles)

dy.
bd

In the above-entitled cause, the above-named plaintiff,
having moved in this Court for leave to appeal thereto

D2
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

El

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).

K2

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.
vv

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.

SS
-

The above named Matthew McKiernan, et al., defend-
ants in this action, having appealed to this Court from an

E3

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

F1

APPENDIX F
Opinion and Order of the Civil Court, Queens County

CIVIL COURT OF THE CITY OF NEW YORK

County oF QUEENS

dy.
Ad

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.

ys
vv

soil ianeescreceaiaaeieeeeiiaass SINT MR PLAS AE PELLET BL LS PEED

F2

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)

F3
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

F4

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-

Fd

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

F6

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.

:

V7

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

yp
vr

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
bd

Fs

Appendix F

Cal. No. A1646/69
Index No. 24086/68

+.
i

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

F9

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.

G1

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.

%
a

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.

G2

_ 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

—
hy

CONSTANTINE Bauuas, as President of Lodge No. 1894,
International Association of Machinists & Aerospace
Workers, AFL-CIO,

Plaintiff,

agatnst

Joun P. Carrot,
Defendaut.

»™
vv

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.

G4

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.
e

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

———

i

Gd

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

dy
kg

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.

»™
7.

i6

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

G7

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385608_0988%3A1. Public record. Not legal advice.