Opinion
December 19, 1949.
Present — Johnston, Acting P.J., Adel, Sneed, Wenzel and MacCrate, JJ.
In an action by plaintiff John Gleeson seeking reinstatement as a member of a local trade union, and damages claimed to have been sustained because of the suspension from membership, after trial of the action, together with a similar action by one John Metzler against these defendants, judgment has been entered directing that the plaintiff be reinstated as a member, without allowance of damages, but with an extra allowance of costs, on the ground that the action was extraordinary and difficult, and with provisions for other directions as to the re-employment of plaintiff, and as to insurance and membership in an employees' association. Judgment modified on the law by substituting $169.35 in the place of $419.35 as costs, and by striking therefrom all decretal provisions after the third one, and substituting therefor: "ORDERED, ADJUDGED AND DECREED that the defendant union and the officer-defendants thereof, forthwith in writing notify the Borden Company, plaintiff's former employer, and Borden's Employees' Mutual Aid Association, Incorporated, of plaintiff's reinstatement in good standing with all his seniority rights in the union, and request in writing the employment of plaintiff by the Borden Company; and it is further ORDERED, ADJUDGED AND DECREED that plaintiff have execution against defendants for the costs taxed". As so modified, the judgment is unanimously affirmed, without costs. The action involved no extraordinary facts or difficult problems of law. The decision below cited the cases which had established the right of members of unions to resort to courts to undo unwarranted deprivations of union membership. No new problem of law was involved herein. No extra allowance should, therefore, have been granted. ( Matter of Baker, 284 N.Y. 1.) The determination below that there was no basis in the constitution of the local union, which was that of the international union, or in any resolution of the union, for the expulsion or suspension of plaintiff from membership because he did not comply with a direction of the president of the local, is supported by the evidence. Up to the date the president ordered the books to be left at the place of business of the employer, neither constitution nor union resolution conferred on him power to give the order. He acted following a meeting of but two members of the executive board of seven. The membership gave no direction as to the books until some time subsequent to the date when the charges were laid against the plaintiff. The plaintiff, however, cannot and did not in his complaint attack the proceedings on the appeal to the general executive board. He acquiesced in the method of hearing the appeal adopted by the general executive board. Discretion as to the procedure to be followed on appeal is granted to the general executive board by the constitution of the union (art. IX, § 6; art. XVIII, § 2). Plaintiff was notified of the course to be pursued and made no objection. He could not therefore question the procedure adopted. ( People ex rel. Brewster v. "Old Guard" of City of N.Y., 87 App. Div. 478, affd. 178 N.Y. 576; Bayer v. McLaughlin, 259 App. Div. 1032.) But since there was no lawful basis for the charges against him, neither the general executive board nor the local board could order his suspension or expulsion and he is entitled to reinstatement. But the defendants cannot be directed to demand that plaintiff shall be re-employed by the Borden Company or be reinstated as a member of the employees' mutual aid association, or that the insurance certificate shall be reinstated. The contract of the union with the Borden Company required the dismissal by the company of employees who had been suspended by the union. Re-employment of such members could be required within two years. More than five years have passed since plaintiff was suspended. The defendants may request but cannot demand that the Borden Company re-employ the plaintiff. Until re-employed by the Borden Company, plaintiff cannot be a member of the employees' association. Therefore, the defendants cannot be directed to obtain membership in the association for the plaintiff. Likewise they cannot be ordered to obtain reinstatement of the insurance. The insurance contract is a matter which the union cannot control. The employer, the employees' association and the insurance company are not parties to this litigation which has, without fault on their part, been delayed long after the period within which action under their respective contracts could be compelled. In view of the implied finding that there was no bad faith or fraud on the part of the membership, which is affirmed, damages cannot be awarded. ( Glauber v. Patof, 294 N.Y. 583.)