CASON v. GLASS BOTTLE BLOWERS ASS OF UNITED STATES AND CANADA

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District Court of Appeal, Second District, Division 1, California.

CASON v. GLASS BOTTLE BLOWERS ASS'N OF UNITED STATES AND CANADA et al.

Civ. 17326.

Decided: June 30, 1950

V. P. Lucas, Los Angeles, for appellant. George D. Higgins, Los Angeles, for respondent.

The Glass Bottle Blowers Association of the United States and Canada, an unincorporated association (hereinafter referred to as National Association); James McDonald, Local Representative in California of said National Association; William Endicott, President of Local Union No. 190, of Maywood, Los Angeles County, California, affiliated with said National Association, and Anthony Frederick, Secretary of the said Local Union No. 190, and the aforesaid Local Union No. 190, chartered by and affiliated with the aforesaid National Association, appeal from a judgment directing the issuance of a peremptory writ of mandate commanding the aforesaid defendants to immediately reinstate plaintiff, ‘to full, complete and unrestricted membership in said unions, the Glass Blowers Association of the United States and Canada, and the said Local Union #190’, and that plaintiff recover of the aforesaid National Association the sum of $16,429.32 by way of damages.

By his second amended complaint, plaintiff alleged that there existed between the National Association and Maywood Glass Company of Maywood, California, a closed shop contract; that according to the provisions of Article V, section 1 of the constitution of the National Association, the president thereof ‘shall have power to suspend any local union officer or member of the association for any violation of its laws or insubordination of any lawful command of himself and shall immediately report the same to the trade’; that on May 20, 1945, the president of the National Association, ‘without any charges being placed or made against plaintiff, without notice of trial, or any trial whatever’, suspended plaintiff from membership in the National Association, ‘deprived him of his office as president of said Local Union No. 190, ordered seized and suspended the plaintiff's union card in said union, and suspended him from membership in said union’. That on the 20th day of May, 1945, the president of the National Association sent a telegram to the Maywood Glass Company directing, ‘under and by virtue of the said closed shop agreement’ that plaintiff be discharged from his position with said glass company, and that he was so discharged. That pursuant to a judgment rendered in a previous action filed in the Superior Court of Los Angeles County, and which judgment had become final, the aforesaid suspension of plaintiff was ‘adjudged to be illegal, null and void’. That by reason of having been deprived of his union membership and union card as aforesaid, plaintiff has been unable to procure employment at his trade.

That plaintiff ‘in pursuance of said judgment has exhausted his remedies in all of the tribunals of the G.B.B.A., (National Association) in an effort to be reinstated in said labor union, but all to no avail’. ‘That plaintiff has instituted actions both at law and in equity in the Superior Court of Los Angeles County, California, and has thus far been granted partial relief only therein. That plaintiff has been awarded damages for loss of wages from May 20th, 1945 to December 17th, 1945, and also (was awarded) judgment that the said suspension was in violation of the law and is null and void.’

It is further alleged, ‘that within thirty days following said suspension the plaintiff filed written notice of appeal to the Excutive Board of the G.B.B.A. but after long delay, and needless postponement by the defendants against the will and wishes of the plaintiff, the hearing was set in Atlantic City, New Jersey, which is approximately three thousand miles from the plaintiff's home and place of residence as aforesaid, and approximately ten months after said suspension, and the plaintiff was notified by James Maloney (President of National Association) of the wrong date of the hearing of said appeal, to-wit: that said hearing would be held on March 22, 1946, but said hearing was held instead on March 2, 1946, and was decided against this plaintiff in his absence. That thereafter, and within the time prescribed by the constitution of the G.B.B.A. (National Association) the plaintiff served notice upon the proper officer that he appealed to the National Convention of the G.B.B.A. but to no avail, the plaintiff was denied a fair hearing and/or trial before said convention, and was denied reinstatement in said labor union, the G.B.B.A. That the defendants, and each of them, are actuated by actual malice and hatred toward and of the plaintiff’.

The second, third and fourth causes of action are as stated by the trial judge, ‘but restatements of the same cause of action (the first) with varying allegations of damages'.

The trial court found that plaintiff is a skilled operator of glass container blowing machines, and ‘that he depends for his livelihood upon his earnings at the said trade’. That plaintiff was employed at his trade for more than three years prior to May 20, 1945 by the aforesaid Maywood Glass Company. That for more than thirty years plaintiff had been a member in good standing of the National Association, and for some two years prior to May 20, 1945 had been President of defendant Local Union #190, which is affiliated with the National Association. That the constitution of the National Association does contain the aforesaid provision with reference to the power of the president thereof to suspend any local union, officer or member of the association.

The court further found that it was true that on May 20, 1945 defendant president of the National Association, ‘without any charges being placed or made against plaintiff, without notice of trial, or any trial whateverer’, suspended plaintiff from membership. That such suspension was accomplished through a telegram dispatched to plaintiff by defendant National Association president, reading as follows:

‘I am informed by our National representatives that regardless of instructions contained in my telegram of May eleven the plant of the Maywood Glass Company is not in operation today Sunday STOP I am holding you as President of Local one ninety responsible for this condition of affairs and by the authority vested in me as President do hereby suspend you from membership in our Union the Glass Blowers Association of the United States and Canada.’

That pursuant to telegraphic directions from said president of the National Association, Maywood Glass Company did discharge plaintiff from its employ and thereafter refused to re-employ him.

The court also found ‘that it is true that said labor unions and the above named defendants without right treated said suspension as an expulsion and have refused to have any dealings with, or to recognize the plaintiff as a union man, or a member of the G.B.B.A. or in any manner whatever. That it is true that the plaintiff is not able to obtain work at his trade unless he is a member of the G.B.B.A. having in his possession a clear union card in the defendant union the G.B.B.A.’ (Emphasis added.) That said suspension ‘was without just cause and was wholly illegal, that said suspension was adjudged to be unlawful by the Superior Court of Los Angeles County, State of California, in a judgment entered on the 20th day of March, 1946, in action No. 502,689, in which action Alfred B. Cason the plaintiff herein, was the plaintiff, and James Maloney and the Glass Bottle Blowers Association of the United States and Canada, et al., were the defendants. That said judgment is a final adjudication, and operates as an estoppel as to the fact that the suspension was unlawful and that it was the proximate cause of damage to the plaintiff.’

The court found that ‘it is true that ever since the said suspension of the plaintiff herein has sought and endeavored to secure his reinstatement in said union, the G.B.B.A. and likewise reinstatement as a member of said Local Union #190, and has made application and sought to obtain employment of and with the said Maywood Glass Company, and many other glass manufacturing plants, but did not succeed. That it is true that he, the plaintiff, in pursuance of said judgment has exhausted his remedies in all of the tribunals of the G.B.B.A., in an effort to be reinstated in said labor union, but all to no avail. That the defendants refused to grant to the plaintiff a fair trial of his appeal to the convention. That the plaintiff has been denied and is still denied reinstatement in the said union, the G.B.B.A. and that he has been refused and is still refused employment at and with the Maywood Glass Company, and other glass manufacturing companies, because the plaintiff was denied by the defendants a union card in the said G.B.B.A. That in said action No. 502,689, the plaintiff has been awarded damages for loss of wages from May 20th, 1945, to December 17th, 1945, and also judgment that the said suspension was in violation of the law as aforesaid. The Court finds that said judgment is final and operates as a bar to the recovery of wages lost by plaintiff during the remainder of the period of unlawful suspension.’

With reference to plaintiff's efforts to exhaust his remedies before the tribunals set up within the National Association, the court found ‘that within thirty days following said suspension the plaintiff filed written notice of appeal to the Executive Board of the G.B.B.A. That the hearing thereof was set in Atlantic City, New Jersey, which is approximately three thousand miles from the plaintiff's home and place of residence, on March 2nd, 1946, approximately ten months after date of said suspension. That the defendant, James Maloney, sent a proper telegram to plaintiff, advising of date of said hearing, but Mr. Cason received a telegram with a wrong date, due to mistake of the Western Union Telegraph Company, but that plaintiff was not misled by said mistake. That said hearing was held on March 2nd, 1946, and was decided against plaintiff in his absence. That the Court further finds that it is true that thereafter, and within the time prescribed by the Constitution of the G.B.B.A. the plaintiff served notice upon the proper officer that he appealed to the National Convention of the G.B.B.A. but to no avail; the plaintiff was denied a fair hearing or trial before said convention or before the Appeals and Grievance Committee of said Convention, and was denied reinstatement in said labor union, the G.B.B.A. The Court finds that this denial of reinstatement constituted an expulsion. That the defendants, and each of them, except Local Union #190, James McDonald, William Endicott and Anthony Frederick were actuated by actual malice and hatred of and toward the plaintiff in their denial to plaintiff of a fair hearing before said Committee or before the Convention and in their refusal to reinstate plaintiff.’ (Emphasis added.)

The court further found that plaintiff ‘has no legitimate cause for complaint’ as to the place where the hearing before the Executive Board was held', Atlantic City, N. J., as that was the usual and customary place of meeting for said Executive Board. Also, that plaintiff was not prejudice because he was financially unable to attend the meeting nor by the mistake made by the telegraph company in transmitting the telegram regarding the date of hearing.

It was found by the court that it was untrue that defendants caused plaintiff's name to be placed upon an ineligible list, commonly called a ‘black list’ or that all union members were by defendant president of National Association, directed, ‘not to work, associate or correspond with the plaintiff, or have any deals with the plaintiff whatever’. That while it was true that defendants ‘have wrongfully and unlawfully’, prevented plaintiff from obtaining employment at his trade, that it was not true ‘that this was accomplished through misrepresentation or through any type of discrimination, coercion or intimidation, except that which accompanied and emanated from the fact that plaintiff had been suspended or expelled from union membership and was not in possession of a union card showing him to be in good standing with the G.B.B.A.; that this fact did prevent employers from hiring or retaining plaintiff in their employment because of a well-founded fear on their part that their doing so would precipitate a strike or other labor difficulty in the employer's business. It is not true that defendants have blacklisted the plaintiff in violation of the laws of the State of California’. But that it is true that because of his aforesaid suspension plaintiff has been unable to obtain employment at his trade except for short intervals.

The court further found, ‘that it is true that at the time of said suspension no charges had ever been made against Alfred B. Cason, and that he had been suspended without any, that the Court held and adjudicated in Superior Court action #502,689, that reasonably specific charges are one of the essentials of a lawful suspension proceeding.

‘Referring to the hearing before the Committee of Appeals and Grievances, and the hearing before the Convention, the Court finds that it is true that prior thereto or at the time thereof Mr. Cason had never been and was not presented with any specific charges against him. Plaintiff was put to inference and conjecture as to what faced him and as to what he must defend against or what he must attack and he was put to his showing in advance of his accusers; he was excluded from the hearing during presentation of charges against him.

‘Referring further to the hearing before the Appeals and Grievance Committee the Court finds that it is true that there are two basic elements which are inherent in due process of law and which, so far as voluntary tribunals such as labor unions, are concerned, are inherent in the American sense of fair play, namely, that one whose rights, those property, whose right to make a living at the trade in which he is skilled is challenged, shall first know what is the charge against him; and secondly, shall have the opportunity to confront his accusers. Those things lie at the basis of all hearings of all kinds which involve a man's right to liberty or his property. Neither of these fundamentals had been accorded to the plaintiff in the hearing before the Committee or before the Convention.’

The court further found that statements made by Lee W. Minton, President of National Association during the hearing of plaintiff's appeal on the floor of the National Convention with reference to the decision rendered in the former case above referred to, were and ‘are false and untrue, and that Mr. Minton at that convention did deliberately misrepresent this Court's opinion and ruling in the former case, and that the normal tendency of that misrepresentation was to mislead the delegates and to make them think that the Court had upheld Mr. Maloney (defendant herein) on the merits.’

The court further found that the acting chairman of the convention at which plaintiff's appeal was heard ruled that plaintiff was not entitled to be present and to have a hearing before the convention, and that without plaintiff's consent and contrary to his expressed desire he was refused admission to the convention hall during the presentation of his appeal.

With reference to those who espoused plaintiff's cause upon the floor of the convention, during the hearing of plaintiff's appeal, the court found that such delegates were not representatives of plaintiff but ‘were there as his friends doing their best to sustain him, doing their best to get him into the convention hall where he could have a hearing. They were not his delegated representatives authorized to appear in his place and stead.’ The court further found that at no time was plaintiff confronted by his accusers, afforded an opportunity to cross-examine them, to know what the charges were and to refute them. That because plaintiff ‘was denied his basic rights by the Committee, he was entitled to the floor of the convention, and that it was a gross denial of his basic rights when he was excluded by order of the chairman.’

The court further found that the suspension of plaintiff was wrong from its beginning, but that it could have been ended by the Executive Board or Grievance Committee at its meeting in the month of March, at which meeting plaintiff could have been restored to his rights. That the same is true of the action of the convention, and that until the convention had acted upon plaintiff's appeal the latter was suspended, not expelled, ‘but as that suspension was not limited in point of time, the refusal to lift it, the refusal by the last appellate tribunal to do so, constituted an expulsion * * * it is a new and independent wrong and gives rise to a new and independent cause of action * * * this being a wrongful expulsion rather than a suspension and being a new wrong it was not involved in or adjudicated by case #502,689 (hereinbefore referred to as the former case). The plea of res adjudicata is not well taken and the statute of limitations has not run. Mr. Cason (the plaintiff) was not entitled, much less obligated, to reopen the case #502,689.’

The court further found, ‘that said hearing before the convention was unjust, un-American, fraudulent, oppressive, malicious and a travesty upon justice’. There is a further finding that the judgment rendered in the foregoing case #502,689, which had become final at the time of trial of the instant case, ‘conclusively determined that the suspension of plaintiff was unlawful’. The court found that when the convention refused to lift the suspension on August 5, 1946, and expulsion was effectuated, that ‘plaintiff could have recovered in his first action damages for the entire suspension period and hence is barred from recovering for any of that period in the present proceeding. Plaintiff will recover no damages for the portion of the suspension period extending from December 17, 1945 to August 5, 1946.’ (The date of the convention.)

The court further found that plaintiff's inability to procure work except for short periods of time ‘was proximately caused by defendants expelling plaintiff from the G.B.B.A. and Local Union No. 190 and their lifting and withholding his union card, thus making it impossible for him to convince prospective employers that they could hire him without precipitating trouble with the union * * *’.

The judgment directing the issuance of the peremptory writ of mandate commanding the reinstatement of plaintiff in the union as aforesaid and for $16,429.32 damages followed. The court computed the damages on the basis of $9,026.82 for loss of wages to the 31st day of January, 1949, for the additional sum of $576.10 as wages for the seven weeks from January 31, 1949 to the 21st of March, 1949; for loss of wages for one year from date of judgment the sum of $4,326.40; for mental suffering, humiliation, physical injury, loss of health, damages in the sum of $2,500.00.

Appellants' contention that the remedy of the writ of mandate is not available against any unincorporated association is without merit. It has long been the law of this state that mandamus is a proper proceeding by means of which to compel the reinstatement to membership and to protect the property rights of members of unincorporated associations in all proper cases. In such a proceeding, the same rules are followed, so far as applicable, as apply to incorporated bodies of the same character. Damages may also be awarded to one who has been illegally expelled from a duly organized association for wages lost on account of having been deprived of the opportunity to work or to obtain employment, including compensation for the mental suffering and humiliation caused thereby, and which flows proximately from the wrongful suspension or expulsion, Otto v. Journeyman Tailors etc. Union, 75 Cal. 308, 313, 17 P. 217, 7 Am.St.Rep. 156; Smetherham v. Laundry Workers Union, etc., 44 Cal.App.2d 131, 135, 111 P.2d 948; St. Louis Southwestern Ry. Co., v. Thompson, 102 Tex. 89, 113 S.W. 144, 19 Am.Cas. 1250; Schneiders v. Local Union No. 60, 116 La. 270, 40 So. 700, 5 L.R.A.,N.S., 891, 114 Am.St.Rep. 549, 7 Ann.Cas. 868; Ellis v. American Fed. of Labor, 48 Cal.App.2d 440, 120 P.2d 79; Code Civ.Proc. § 1095; Nissen v. International Brotherhood, etc., 229 Iowa 1023, 295 N.W. 858, 872, 141 A.L.R. 598.

Appellants rely on the case of Elevator Operators, etc., Union v. Newman, 30 Cal.2d 799, 186 P.2d 1, but that case is not helpful to them for it merely decides that mandamus does not lie where there is no cause of action for reinstatement to a position, but merely a claim for damages for breach of contract. Such is not the situation in the instant case. Other cases cited by appellants are equally distinguishable from the one at bar.

Appellant's next contention concerns the doctrine of res judicata and consequent estoppel. In this regard they contend that by the pleadings of the respective parties in the so-called and heretofore referred to prior case, all of the questions and issues, both of fact and law, which are or were presented to the court for determination in the instant proceeding were, or could have been in said previous case, presented to the superior court, and that the judgment of said court rendered March 15, 1946 (which has become final) is binding and conclusive upon the parties hereto.

Undoubtedly, it is the law that the judgment of a competent court, when properly pleaded, is conclusive between the same parties for the same thing, although it be palpably erroneous, Wolverton v. Baker, 86 Cal. 591, 593, 25 P. 54; Price v. Sixth District Agricultural Ass'n, Los Angeles County, 201 Cal. 502, 509, 258 P. 387; Estate of Clark, 190 Cal. 354, 212 P. 622.

But are the causes of action stated in the previous proceeding and the one at bar the same, and were the points, matters and issues presented in the first suit the same as are now tendered? While in some respects it may appear that the issue presented in the instant case is but a recast of that tendered in the former proceeding, a critical examination of the two lawsuits discloses that the former was instituted to obtain injunctive relief against the enforcement of the suspension of respondent by the President of National Association, while the cause now engaging our attention prays for the issuance of a writ of mandate directing appellant National Association to reinstate respondent to its membership and his position as President of Local Union No. 190. The parties are not the same, and the question of reinstatement, which is one of the principal, if not the principal question involved in the instant proceeding, was not determined by the court in the prior action, the court holding in that proceeding that while the suspension of the respondent was unlawful and void, that he had taken ‘an appeal from said suspension within the time and in the manner provided by the G.B.B.A. (National Association) constitution, which appeal is still pending before the internal administrative tribunal provided for and prescribed by said constitution’; that because of the appeal pending before the national association tribunal, ‘the court will not order plaintiff's immediate restoration to membership’. It must therefore, be held that appellants' plea of res judicata can not be sustained.

Since the final judgment rendered in the prior action determined that the suspension of respondent by the president of National Association was unlawful and void, we can not concern ourselves with such suspension but are confined to a determination of whether the hearings before the executive board, the appeals and grievance committee and the National Convention, were had in good faith and in accordance with the laws and rules prescribed by the National Association's constitution. If such laws and rules are not in violation of the laws of the land, the laws of natural justice or any inalienable right of the member, and are followed in good faith, then the judgment pronounced by such tribunals is conclusive.

With reference to the expulsion of members from associations of the character here in question it has been held that the courts have no right to interfere with the decisions of the tribunals of the associations except in the following cases: ‘First. If the decision arrived at was contrary to natural justice, such as the member complained of not having an opportunity to explain misconduct. Secondly. If the rules of the club have not been observed. Thirdly. If the action of the club was malicious and not bona fide.’ Otto v. Journeyman Tailors, etc. Union, supra, 75 Cal. at page 314, 17 P. at page 219, 7 Am.St.Rep. 156.

In the instant case the trial court held that upon respondent's appeal to the National Association tribunals from the order suspending him, ‘the plaintiff was denied a fair hearing or trial before said convention or before the Appeals and Grievance Committed of said convention, and was denied reinstatement in said labor union, the G.B.B.A. (National Association)’. The court also determined that the denial of reinstatement ‘constituted an expulsion’.

We are persuaded however, that reasonable and ordinary construction of the language used in the constitution of the National Association compels the conclusion that the words ‘suspend’ and ‘expelled’ are used synonymously, and that there is no intention manifested that suspension means one thing and expulsion means another. That the action of the president in suspending a member of a local union or an officer thereof is final and complete in itself and not a temporary thing that requires approval is strengthened by reference to section 1 of Article V of the constitution, reading as follows: ‘He (the president) shall decide all questions of law, disputes or questions in controversy however arising; all his decisions being subject to appeal, first to the executive board, and then the biennial convention.’ The decision of the president of National Association is somewhat similar to a judgment of a trial court. It is effective in itself unless reversed on appeal. Under the constitution of National Association, no action of the executive board or convention was required to give efficacy to the act of the president in suspending respondent. Such suspension remained in effect unless, upon appeal by respondent to the executive board or biennial convention it was reversed. This was recognized by the court in the prior proceeding when it relegated respondent to the exercise of his right of appeal to the forums of the National Association before the civil courts could intervene.

That respondent's suspension was unlawful and that he was entitled to damages from the date of such suspension until the decision of the prior case has been judicially determined and is final. But this suspension was the act alone of the president of the National Association.

We are therefore confronted solely with the question of whether the proceedings on respondent's appeal to the executive board and biennial convention were so unfairly conducted, contrary to natural justice, malicious, and not bona fide, so as to authorize the courts to assume jurisdiction and decree the reinstatement of respondent in the national union and as president of Local Union No. 190, and to award him damages for the wrong allegedly done him.

A review of the record herein discloses that the president of National Association is authorized by the constitution thereof to decide all questions of law, disputes or questions in controversy, however arising, all his decisions being subject to appeal, first to the executive board, and then the biennial convention. The national president is authorized to remove any local union officer, or representative, for incompetency or for nonperformance of duties, or for failure to carry out the provisions of National Association's constitution, the rules therein contained, and the by-laws and agreements of the local union, or for putting into effect or allowing to be put into effect any practice, rule, agreement, by-law, or policy not having the approval of National Association. A portion of Article V, section 1, of the constitution of National Association, having to do with the national president thereof, reads as follows: ‘He shall have power to suspend any local union officer or member of the association for any violation of its laws or insubordination of any lawful command of himself and shall immediately report the same to the trade.’

It is conceded that at the time of the suspension of respondent by the national president there was and had been in existence a union shop agreement and working rules entered into by National Association and Maywood Glass Company of Maywood, California; that by the terms of said agreement it was provided that the same should continue in full force and effect until August 31, 1945. That among other things in said agreement, it was provided as follows:

‘Hours of Work

‘Section 1. Six days or six nights shall constitute a week's work, but operators and machine upkeep men will be required to work on Sunday when necessary to put their machines in order for the coming week. Starting and quitting time shall be left to the option of the different factory managers and the Local Union.’

‘Duration of Agreement

‘Section 1a. This agreement shall be in full force and effect until August 31, 1945, and thereafter unless changed by mutual agreement.’

‘No Work Stoppage

‘Section 13. There shall be no cessation of work in any factory, pending the adjustment of any disputes or differences between the firm and Local Union, unless on instructions of the Executive Board of the Glass Bottle Blowers Association.’

The record further reveals that prior to the 20th day of September, 1944, a controversy had arisen between respondent herein and his employers, Maywood Glass Company; that the Vice-President of the National Association, in conjunction with William Gable, local representative and agent in California of the National Association, endeavored to effect a settlement of said controversy. That thereafter it was referred to a United States Commissioner of Conciliation for Labor Matters; that thereupon an agreement in writing was entered into which said agreement was assigned by respondent herein among others. By the terms of said agreement it was provided that on condition the national president reinstate certain suspended members of local unions involved, including respondent, that such members would return to work pending further negotiations. Apparently, no final settlement interpreting the agreement between National Association and Maywood Glass Company was arrived at and on May 5, 1945 respondent herein advised the Manager of Maywood Glass Company that, as President of Local Union No. 190, he (respondent) would not permit the Maywood Glass Company plant to operate on Sunday, May 6, from 8 a. m. to 8 a. m. on Monday, May 7, and that said plant would be shut down each Sunday thereafter until certain wage demands were met. That respondent as President of said local, refused to permit upkeep men or operators to put machines in order on Sunday for the ensuing week. That said plant was closed down on Sunday, May 6, but that foremen of said Maywood Glass Company kept said machines in order and fired so that they would be ready for operation on Monday, May 7. However, on Monday, May 7, because the aforesaid foremen had kept the machines in order for operation on Monday, respondent refused to permit members of his local union to operate said machines and declared another 24-hour shutdown.

Thereupon, Howard V. Fulton, Manager of Maywood Glass Company, sent President of National Association a telegram reading as follows:

‘President A. B. Cason Local 190 advised me Saturday that our plant would not operate on Sunday May 6 from 8:00 a. m. to 8:00 a. m. Monday May 7. Also that we would be down every Sunday until we met certain demands of wages. Cason also refused to allow upkeep men or operators to put their machines in order for the coming week. The foremen were allowed to do the necessary maintenance work. Monday 8:00 a. m. part of the machines were ready and hot. Cason refused to allow the operators to go to work because glass had been put into the machines. This policy had been the practice on former startups and Cason admits he should have warned us. Cason declared another 24 hour shut-down and says he will only allow the machines to be turning over and the drop ready to make ware at 8:00 a. m. Tuesday. Then the operators and upkeep men can start work. His refusal to allow the operators and upkeep men to put their machines in order for the coming week is a direct violation of the manufacturers contract with your organization. Please advise us your plans to break up this revolution by Local 190 against your organization and your organizations agreement with the manufacturers. Cason also advised that the president and secretary of the Latchford Marble, Glass Containers, Owens-Illinois and Maywood locals are forming the policies that are being followed in this revolt. Cason also admits being the leader of this group.’

On May 11, 1945, after receipt of the aforesaid telegram National President Maloney dispatched and sent to Local 190, through its president, respondent herein, a telegram reading as follows:

‘For sometime I have been trying to arrange a wage conference with manufacturers on shift differential premium payments. Stop. Supreme Court decision dissolving Glass Containers Association has caused delay. However I am meeting committee of two from the manufacturers Tuesday May 15th what their decision will be I am unable to say at this time. Stop. The action of Local Union One Ninety in refusing to keep the Maywood plant in operation on Sunday for reasons you are all familiar with is a violation of our conference agreement and as president of our association I must instruct you to comply with these provisions of our wage contract and keep that plant in operation seven days per week the same as all other plants throughout the industry I trust you will comply with this ruling.’

On May 20, 1945, President of National Association dispatched to respondent a telegram substantially in words and figures as follows:

‘I am informed by our national representatives that regardless of instructions contained in my telegram of May Eleventh the plant of the Maywood Glass Company is not in operation today Sunday. Stop. I am holding you as president of Local One Ninety responsible for this condition of affairs and by authority vested in me as president do hereby suspend you from membership in our union the Glass Bottle Blowers Association of the United States and Canada.’

Again, on May 24, 1945, said president of National Association dispatched to respondent Cason, a telegram as follows:

‘My recent telegram suspending you from membership in our organization was primarily because you refused as president of Local 190 to permit our upkeep men to come in the factory on Sunday May 6 for the purpose of placing machines in condition to work the following Monday a violation of Section One of our wage contract Second because the Maywood Glass Company opened their machines with foremen you stopped the plant for twenty four hours by not allowing the operators to work in violation of Section Thirteen of our wage contract.’

On May 26, 1945, the President of National Association forwarded a telegram to respondent Cason reading as follows:

‘I have your telegram informing me all members of Local #190 are ready to return to work under our national working agreement. The constitution and the law of the state of California. However I must direct you to our constitution and call your attention to the fact that the president of the Association is authorized to decide all questions of law, disputes or questions in controversy, however arising. I trust your telegram means that you will call off this illegal strike and return to work under our wage contract.’

It is therefore apparent that respondent's contention on appeal that he was suspended by the president of National Association ‘without any charges being preferred against’ him is not borne out by the record. It is manifest from the foregoing telegrams sent to respondent by the national president, dated May 20, and 24, 1945, that the former was suspended upon the following charges: ‘because you refused as President of Local 190 to permit our upkeep men to come in the factory on Sunday May 6 for the purpose of placing machines in condition to work the following Monday a violation of Section One of our wage contract Second because the Maywood Glass Company opened their machines with foremen you stopped the plant for twenty four hours by not allowing the operators to work in violation of Section thirteen of our wage contract.’

We come now to a consideration of respondent's efforts to exhaust his remedies before the tribunals set up in the constitution of National Association. In that regard, as the trial court found, respondent filed a timely notice of appeal to the Executive Board of National Association, was advised of the date of hearing thereof, did not attend said meeting, and his appeal was decided against him in his absence. Thereupon, respondent appealed to the Bi-ennial Convention of National Association.

We are forced to the conclusion that the trial court's finding that in the hearings before the appellate tribunals of National Association, respondent ‘was not presented with any specific charges against him * * * was put to inference and conjecture as to what faced him and as to what he must defend against * * *’ is not sustained by the evidence. As heretofore pointed out, the telegrams with reference to respondent's suspension contained specific charges against him and fully informed him of the ground upon which such suspension was based.

This brings us to a consideration of whether the proceedings before the national convention in considering respondent's appeal were violative of natural justice, unfair, malicious and not in good faith.

The tribunals of labor unions established for dealing with matters relating to the discipline of members, and for securing the good government and welfare of the organization are not fettered by the rules of evidence as applied in courts of law. They may proceed upon and be guided by evidence on which men transact the ordinary business of life. The decisions of such tribunals suspending or expelling members are of a quasi-judicial character, and proceedings before them must be consonant with the principle of natural justice, fairly and honestly administered in accordance with the laws of the union and the laws of the land.

As an incident to his membership in a labor union, one consents to be suspended or expelled in accordance with the constitution and rules of the union, administered by its appropriate officers or tribunals, acting in good faith and in conformity with natural justice.

Respondent first appealed to the Executive Board, was advised of his right to be personally present at the meeting when his appeal was to be considered, but did not attend for financial and other reasons hereinbefore narrated. The trial court found for various reasons heretofore stated, that respondent was not prejudiced because of his inability to attend the executive board meeting at which his appeal was considered in view of the fact that he was afforded an opportunity to attend. Under these circumstances, it cannot here be held that the decision of the Executive Board, made in respondent's absence, denying his appeal, was violative of the laws of natural justice and was not in good faith, or that he was denied a fair hearing or opportunity to present his case.

Respondent next appealed to the national convention from the adverse decision of the Executive Board.

Pursuant to the rules of the National Association, respondent's appeal to the convention was referred to the Appeals and Grievance Committee thereof. This committee held a hearing at which respondent was present and presented his case. There were offered to this committee some eight resolutions, adopted by local unions of National Association, located at Los Angeles, Downey, Maywood, Huntington Park, and Long Beach, all in Los Angeles County. The purport of these resolutions was that the charges and accusations made against respondent ‘were groundless and untrue’, that respondent ‘was suspended in an unlawful manner’ and without justification. The resolutions demanded that ‘to bring harmony and good will back into our ranks', and ‘to renew the faith and regard’, for National Association ‘among the membership’, that respondent ‘be completely exonerated and reinstated in the Glass Bottle Blowers Association (National Association) will full restitution for any and all pecuniary losses due to said suspension’. After presentation of the foregoing resolutions, respondent, who was personally present before the Appeals and Grievance Committee, was permitted, without interruption, to present his appeal, and the reasons why his suspension was unlawful and without justification. In this regard, respondent testified that ‘I went back to the '44 convention of which I was a delegate representing Local 190, and I pointed out to them that on three days of the 1944 convention in Cleveland that President Maloney had reiterated several times on three different days of the convention that it was entirely optional with the men in any glass plant whether they worked on Sunday or not’. At the hearing, respondent produced the minutes of proceedings had at the 1944 convention from which he read portions. Included therein we find the following:

‘Delegate Welch, Local Union 78, asked if it was the intention of this section that men must work on Sunday if the manufacturer requires them to.

‘President Maloney: I have ruled, Delegate Welch, as you know, that it is optional with the men in the plant whether they work on Sunday or not. That question came up during the Indianapolis convention and I ruled as per the wage contract that it was up to the men themselves as to whether they should work or not. That decision was protested by the company and taken to the wage conference in Atlantic City. It created a great deal of discussion. The community took a very definite stand and insisted that the section in the wage contract as it is written be amended in one particular word, that if the company felt they had to keep the plant in operation on Sunday the men were compelled to work under our wage contract and on the ruling on the section covering this particular question. They made a very determined fight at the wage conference. As a matter of fact, I believe it was brought up in a couple of conferences, and the conference, I am happy to say, upheld the position that I have taken, that it was optional with the men as to whether they would work on Sunday or not.

‘I do not know what is in the minds of the committee, but as far as the president of the organization is concerned, the ruling would be the same, that it is optional with the men.’

Before the Appeals and Grievance Committee respondent read at great length from the 1944 convention proceedings in an effort to show that the president of National Association at the 1944 convention had ruled that under the laws of National Association, six days or six nights would constitute a week's work and that Sunday work was, as respondent contended, optional with the union workers. Respondent then brought before the committee the working agreement under which the members of his local union were operating, testifying, ‘Then I referred them to the working agreement, stating that, ‘I am bringing the working agreement before you now after President Maloney's ruling in the convention to show that we are merely sustaining President Maloney in the action that he took in the convention.’ And then the Section 1 of the working agreement was read to them.'

At the trial in the court below respondent further testified as follows:

‘Q. And then what did you state with reference to the working agreement as to how you regarded your action and the action of your committee and your Local Union?

‘A. I told the Grievance Committee, according to the minutes of the previous meeting and the working agreement that myself as president of Local 190 I acknowledged a motion to come to Local 190 to the extent that the men did not want to work on Sunday and the motion was seconded and voted upon and it was voted unanimously that they didn't want to work on Sunday.’

Respondent then presented to the grievance committee a copy of the memorandum opinion rendered by the trial judge in the prior case, wherein it was judicially ruled that his suspension was illegal and unlawful. He then presented the foregoing resolutions of protest together with one signed by the individual members of his own local union No. 190. Respondent was then permitted to argue his case, during which he asked, ‘How could I be suspended under those circumstances? I was merely sustaining their President in the action that he took in the previous convention.’ The Appeals and Grievance Committee then took the matter under submission to make its report to the convention.

The proceedings of the 1946 convention, at which respondent's appeal was considered, reflect that the Appeals and Grievance Committee, through its chairman, presented its report to the convention on respondent's appeal. The report was signed by all the members of the committee. After the foregoing protests from the various local unions were read, the report and recommendation of the Appeals and Grievance Committee was as follows:

‘We of the Appeals and Grievance Committee, reporting on the expulsion of Alfred B. Cason, acting on the resolutions from Local Unions Nos. 100, 114, 122, 125 and 148, do not concur.

‘We feel, under Article 5, Paragraphs 8 and 9, of the G.B.B.A. Constitution, that President Maloney was acting within his duty under the laws of this Association.’

According to the convention proceedings, ‘A motion was made and seconded to adopt the report of the committee.’ Then followed a spirited and acrimonious discussion by several delegates who espoused the cause of respondent. Officers of the national convention, including the then president who had succeeded appellant president Maloney in that office, defended the action of former president Maloney in suspending respondent and urged adoption of the Appeals and Grievance Committee report. During the discussion much invective was indulged in by both respondent's supporters and those favoring adoption of the committee report. The decision and memorandum opinion of the trial judge in the prior case was referred to and quoted from. During the heated discussion on the floor of the convention, a delegate pleaded for respondent ‘to have a word and a hearing here on the convention floor’. The presiding officer denied this request on the ground that Section 5 covering appeals and grievances provides that when an appeal is presented to the national secretary it is his duty ‘to notify all parties interested to appear before the Grievance Committee, either in person or by counsel’. The ruling of the chair was thus stated: ‘So he is not entitled to the floor of this convention.’

A delegate thereupon moved the previous question. The question before the convention being on the adoption of the foregoing report of the Appeals and Grievance Committee, the presiding officer stated: ‘All in favor of the committee's report, which upholds President Maloney in the suspension of A. B. Cason (respondent herein), will please say, ‘Aye’. Those opposed will say, ‘No’.'

The committee report was adopted with but two negative votes.

We come now to a consideration of the efforts made by respondent to be permitted to appear and plead his cause before the national convention. In this regard, there is evidence in the record that about an hour before his appeal was to come before the convention, respondent contacted Chairman Hubbard of the Appeals and Grievance Committee, who asked respondent if he ‘was expecting to go before the convention to lay my case before the convention’, to which respondent replied, ‘I most assuredly am’. Subsequently, Chairman Hubbard told respondent that he ‘didn't think they were going to admit me to the convention’. Without repeating the testimony it is sufficient to say that respondent made every effort to gain admission to the convention in order to present his appeal in person but was steadfastly refused such opportunity, and in fact, was prevented from entering the convention hall by one of the guards at the door thereof.

We are unable to reconcile ourselves to the view that the treatment of respondent at the national convention was at all in accord with the principles of natural justice or the ideals of fairness that should characterize hearings of a quasi-judicial character such as this was.

We are not unmindful of the policy of the law to leave to labor unions and kindred organizations the right to discipline or expel their members. But the exercise of this right is not plenary or without its limitations. Courts will review the rulings of the tribunals of such organizations when it is made to appear that the decision rendered therein is contrary to natural justice. Included in the principle of natural justice is the right of a member to have an opportunity to defend against or explain misconduct charges against him. The holder of a membership in an organization such as the one here under consideration, is entitled to be protected in the enjoyment of such membership and its benefits against any unauthorized act or proceeding on the part of his fellow-members, either as individuals or in their official or collective capacity, by which the member's enjoyment of said right will be impaired or destroyed. True, the right of a member to retain his membership is subject to the terms and conditions contained in the constitution or by-laws, which constitute a contract between the organization and its members, but nevertheless, when it is sought to deprive him of his membership he has a right to insist that any proceedings taken against him shall be instituted and conducted in accordance with the principles of natural justice. That a fair trial shall be accorded him in accordance with the meaning and intent of justice and fairness as far as possible within the bounds of average human ability, attended by its unavoidable imperfections and frailties. Natural justice and concepts of fairness guarantee a member the right to present his case. That does not simply mean the right to appear in person before a subordinate committee, but the right to appear before those who are to pass upon and determine his right to retain his membership—in the instant case, the delegates to the biennial convention. To hold under the circumstances here present that respondent was accorded that fair and impartial hearing before the convention contemplated by the rules of natural justice would simply be to ignore actualities. If the constitution of the National Association contemplates a hearing before the convention upon an appeal from an order for suspension, such as was given in the instant proceeding, then it is not the precepts of natural justice that must yield, but in accordance with the latter, courts will intervene for the purpose of protecting the rights of the member, and the constitution of the organization must yield, to the end that such constitution may not be made a pretext for oppression and wrong.

The judgment is affirmed.

WHITE, Presiding Justice.

DORAN and DRAPEAU, JJ., concur.

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