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ALLEN v. 1976

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

Jim ALLEN, Plaintiff and Appellant, v. AMERICAN FEDERATION OF LABOR et al., Defendants, Los Angeles County District Council of Carpenters, Robert O'Hare, Earl E. Thomas, Roy Fankboner (Sued herein as Roy Frankboner), Arthur McGaffin, Gilbert Nixon, Alex Bodin, Joe L. Ezell, Joe Pena, Sol H. Agronovitz, Garvin McGeehee, Carnie L. Renfrow, Dale H. Keys, and Local Union 1976 of The United Brotherhood of Carpenters and Joiners of America, Respondents.*

Civ. 22634.

Decided: July 15, 1958

Herbert W. Simmons, Jr., and Abraham Gorenfeld, Los Angeles, for appellant. Arthur Garrett, Los Angeles, for respondents.

This is an appeal from a judgment discharging an alternative writ of mandate and denying a peremptory writ of mandate, and costs in favor of the defendants.

In plaintiff's complaint he sought a writ of mandate to compel the defendants to restore him to membership in Local 1976 of the United Brotherhood of Carpenters of America, a labor union; he also sought damages allegedly resulting from the claimed wrongful expulsion. In a second count he asserted a claim for damages from certain defendants who had filed and prosecuted the charges which resulted in his expulsion, and damages from certain defendants who constituted the trial board which recommended his expulsion.

The facts are substantially as follows: The plaintiff belonged to Local No. 1976 of the Carpenters' Union. The constitution, bylaws and ritual of the United Brotherhood of Carpenters and Joiners of America, of which the local union was a part, provided in effect that a member, at the time of joining, should take certain obligations which in part read as follows: ‘And I further affirm and declare that I am not now affiliated with and never will join or give aid, comfort or support to any Revolutionary Organization or to any organization that tries to disrupt or cause dissension in any Local Union, District Council, State or Provincial Council or the International Body of the United Brotherhood of Carpenters and Joiners of America.’

Prior to the taking of such obligation, the appellant was put on notice by the president that the Union does not recognize the Communist Party as a political organization.

Pursuant to the bylaws, charges were filed by members of the Union, in writing, against the plaintiff, as follows:

‘We, the undersigned, hereby prefer charges against Brother James T. Allen, member of Carpenters' Local #1976, whose address is 629 E. 85th Street, Los Angeles, California for violation of his obligation which he took when he became a member of the United Brotherhood of Carpenters and Joiners of America, which reads in part:

“I further affirm and declare that I am not now and never will join or give aid, comfort or support to any revolutionary organization or any organization which tries to disrupt or cause dissension in any Local Union, District Council, State or Provincial Council or the International Body of the United Brotherhood of Carpenters and Joiners of America.'

‘We specifically charge that Brother James T. Allen has over a period of years given aid, comfort and support to Communistic-Front organizations, in violation of the obligation quoted above.’

A copy of the charge was served upon the plaintiff within the time prescribed by the rules of the Union and a hearing was held thereon. At the hearing there was introduced into evidence certain items from the Daily People's World newspaper. In one issue of such newspaper the plaintiff was listed as a union leader and one of the signers of a statement released by the Civil Rights Congress, asking an end to contempt proceedings against the ‘L. A. Ten,’ and reading in part as follows:

“The jailing of Communist and progressive leaders for refusing to answer questions concerning themselves or their organizations, reminds us of trade union leaders who have been jailed for refusing to turn over membership lists in court, and thus expose their members to reprisals by employers.'

‘The statement said ‘we demand the rights of Communists, along with those of all Americans, be fully respected.

‘Signers and their organizations, which are listed for identification only, include: * * * James T. Allen, vice president Local 634 AFL Carpenters; * * *.’

In another issue of the same newspaper it was set forth in substance that certain reactionary elements in the National Association for the Advancement of Colored People had demanded removal of communists and other progressives, and read in part as follows:

‘Others more subtly have accomplished the same end by demanding removal of known Communists and progressives from the nominating committee of the NAACP and from nomination in recent elections. As a result, barred from office were * * * and James T. Allen, vice president of AFL Carpenters Local 634.’

In another issue of the same newspaper the plaintiff was described as ‘a leader in the labor movement,’ and as one of the founders of the Negro Labor Council. An item from another newspaper set forth that the Attorney General of the United States had stated that the last named organization was to be put on the list of organizations designated by the Justice Department as subversive.

Other items from the Daily People's World were introduced at the hearing, some of which set forth in substance that an officer of the Civil Rights Congress, who had been found guilty of contempt of Congress for refusing to divulge the names of members of his group or contributors to it, would speak at a reception for him and at a mass meeting and that the plaintiff was one of the sponsors of the reception. It was related in the item that the speaker had stated that the organization was once listed among communist-front organizations by the United States Attorney General.

There was also introduced into the hearing a copy of the Fourth Report of Un-American Activities in California, in which the Civil Rights Congress is declared to be a subversive organization and under communist control. There was also introduced a form of document used by the Housing Authority of the City of Los Angeles which listed the Civil Rights Congress and its affiliated organizations as being among the organizations designated by the Attorney General of the United States as within Executive Order No. 9835, 5 U.S.C.A. § 631 note.

The plaintiff prior to bringing the action with which this appeal is concerned, namely on April 29, 1955, had filed an action in the municipal court in Los Angeles county. The municipal court case was then transferred to the superior court in Los Angeles county, where it received the number 662–828. Between the time of the filing of that case and its transfer to the superior court, the present case was instituted and given number 654–969. The essential allegations of the two complaints are substantially the same.

On July 8, 1955, the plaintiff filed a charge against his employer with the National Labor Relations Board, setting forth in the charge that on or about January 25, 1955, the employer, at the request of the Los Angeles District Council of the United Brotherhood of Carpenters and Joiners of America, had discharged him, and that the employer had interfered in the exercise of his rights. On the same date the plaintiff filed a charge with the National Labor Relations Board against the above named labor organization and charged the union with unfair labor practices.

At the hearing in the superior court the plaintiff was asked the question: ‘Have you ever been a member of the Communist Party?’ He first answered, ‘I wouldn't like to answer that question.’ Later in the hearing he stated in substance that he refused to answer the question because he believed that the answer might tend to incriminate him. Finally, in an attempted explanation, he testified among other things:

‘The reason that I give is, that if I answer this question ‘no,’ then I understand that later on somebody could come along and accuse me of lying here, which legally is considered perjury.'

The evidence in court established that the plaintiff was a business agent and an officer of the local union, and that as such agent he would have had to file certain affidavits, including the non-communist affidavit required by the Labor Management Relations Act of 1947, 29 U.S.C.A. § 141 et seq. The plaintiff testified that he could not remember whether he had ever signed such an affidavit.

At the hearing before the trial committee of the Union the plaintiff declined to become a witness.

Appellant now contends that the trial court erred as follows:

(1) In finding that the evidence against the plaintiff was competent to support his expulsion from the union; (2) in finding that there was substantial evidence to support plaintiff's expulsion; (3) in finding that there was a sufficient specification of the charges; (4) in finding that plaintiff failed to exhaust his union remedies; (5) in finding that exclusive jurisdiction was vested in the National Labor Relations Board; (6) in finding that plaintiff was barred by reason of other actions pending; (7) in finding that plaintiff had suffered no damages by reason of his expulsion; and (8) in admitting and considering evidence of refusal to testify as to Communist membership on the issue of credibility and damages.

Subsequent to the oral argument by counsel before this court, the United States Supreme Court on May 28, 1958, delivered its opinion in International Association of Machinists v. Gonzales, 78 S.Ct. 923, 2 L.Ed.2d 1018. Concerning the contention made by appellant that the trial court erred in holding that the National Labor Relations Board had exclusive jurisdiction, it was stated therein as follows: ‘But the protection of union members in their rights as members from arbitrary conduct by unions and union officers has not been undertaken by federal law, and indeed the assertion of any such power has been expressly denied. The provision to § 8(b)(1) of the Act 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 membership therein * * *.’ 61 Stat. 141, 29 U.S.C. § 158(b)(1), 29 U.S.C.A. § 158(b)(1). The present controversy is precisely one that gives legal efficacy under state law to the rules prescribed by a labor organization for ‘retention of membership therein.’ Thus, to preclude a state court from exerting its traditional jurisdiction to determine and enforce the rights of union membership would in many cases leave an unjustly ousted member without remedy for the restoration of his important union rights. Such a drastic result, on the remote possibility of some entanglement with the Board's enforcement of the national policy, would require a more compelling indication of congressional will than can be found in the interstices of the Taft-Hartley Act. See United Const. Workers, Affiliated with United Mine Workers of America v. Laburnum Const. Corp., 347 U.S. 656, 74 S.Ct. 833, 98 L.Ed. 1025.

‘Although petitioners do not claim that the state court lacked jurisdiction to order respondent's reinstatement, they do contend that it was without power to fill out this remedy by an award of damages for loss of wages and suffering resulting from the breach of contract. No radiation of the Taft-Hartley Act requires us thus to mutilate the comprehensive relief of equity and reach such an incongruous adjustment of federal-state relations touching the regulation of labor. The National Labor Relations Board could not have given respondent the relief that California gave him according to its local law of contracts and damages. Although if the unions' conduct constituted an unfair labor practice the Board might possibly have been empowered to award back pay, in no event could it mulct in damages for mental or physical suffering. And the possibility of partial relief from the Board does not, in such a case as is here presented, deprive a party of available state remedies for all damages suffered. See International Union, United Automobile, Aircraft & Agr. Implement Workers of America (UAW-CIO) v. Russell, 356 U.S. 634, 78 S.Ct. 932’ [2 L.Ed. 1030]. 78 S.Ct. at page 925, 2 L.Ed.2d at pages 1021–1022.

In view of the foregoing determination, which is binding upon this court, the judgment is reversed and the cause remanded for a determination of all issues upon their merits.

FOURT, Justice.

WHITE, P. J., and LILLIE, J., concur.

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