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January 7, 1957

Al FRIEDMAN, Plaintiff,
INTERNATIONAL ASSOCIATION OF MACHINISTS, A. J. Hayes, Individually and as International President of the International Association of Machinists and Member of its Executive Council, Eric Peterson, Individually and as General Secretary-Treasurer of the International Association of Machinists and Member of its Executive Council, and Elmer E. Walker, Individually and as General Vice-President of the Executive Council of the International Association of Machinists and Member of its Executive Council, Defendants

The opinion of the court was delivered by: MORRIS

Plaintiff brings this suit seeking injunctive relief from his expulsion as a member of the Tool and Diemakers Lodge No. 688 of defendant International Association of Machinists. On March 14, 1952, charges were filed against plaintiff by the business agent for his district of the Association, pursuant to Section 1, Article K, of the Constitution of the Association, charging plaintiff 'with advocating, encouraging and supporting Communism, and also with being a member of the Communist Party.' In accordance with the Constitution of the Association, a trial committee was appointed by the president of plaintiff's lodge, before whom trial was had on March 24, 1952. The trial committee, on March 28, 1952, submitted its report to the membership at a regular meeting of the lodge as follows:

'We, the members of the trial committee of the case of Lloyd Weber versus Al Friedman have after long and serious deliberation and much discussion of the evidence presented find the defendant not guilty as charged due to lack of sufficient and positive evidence.'

 The members of the lodge at such meeting voted 95 to 26 to sustain the 'not guilty' verdict. The complainant took an appeal from this action to the President of the International Association, who set aside the decision of the Lodge, found the plaintiff guilty, and expelled him from membership in the Association. Appeal from the action of the International President was taken by the plaintiff to the Executive Council of the Association, and from its affirmance to the Grand Lodge Convention, which also affirmed the finding of guilty and plaintiff's expulsion.

 It is the plaintiff's contention that no right of appeal from a verdict of 'not guilty' is permitted under the Constitution of the Association; that, if thereby permitted, such procedure violates 'fundamental principles of democratic procedure,' and that the appellate proceedings were illegal because he was not permitted to be present, or have proper representation, at such proceedings.

 Courts have generally upheld appeals from 'not guilty' verdicts of members of voluntary associations when the constitution of the association explicitly provides therefor, Simpson v. Grand International Brotherhood of Locomotive Engineers, 83 W.Va. 355, 98 S.E. 580, certiorari denied 250 U.S. 644, 39 S. Ct. 494, 63 L. Ed. 1186; Callahan v. Order of Railway Conductors, 169 Wis. 43, 171 N.W. 653; Rubens v. Weber, 237 App.Div. 15, 260 N.Y.S. 701; Pfoh v. Whitney, Ohio App., 62 N.E.2d 744. It is said that the members consent to, and are bound by, regulations and laws of the association when they become one of its members, and that, if such regulations are reasonable, courts, in reviewing proceedings to discipline a member, will inquire only to see whether such proceedings have been in accordance with the constitution and by-laws of the association, whether the charges are substantial, whether the member has had fair notice and opportunity to be heard, and whether malice has been employed in arriving at the decision.

 Section 9, Article K, of the Constitution of this Association provides:

 'Appeals may be taken from the decision of any local lodge or Grand Lodge Officer to the International President, * * *. Thereafter appeals may be prosecuted in accordance with provisions of Section 6, *fn1" Article XXV of the Grand Lodge Constitution.'

 The plaintiff contends that, because no words explicitly granting to the complainant a right of appeal, no such appeal is allowable. I do not agree with this contention. The words employed are inclusive rather than exclusive, and without the latter it cannot be assumed that the Association intended to leave the discipline of its members entirely in the hands of the members of the local lodge to which a member might belong. This is particularly so when the ultimate decision is lodged in the Grand Lodge in convention, or in the membership at large through referendum. However, where an appeal is taken from a determination that the accused is not guilty, before a judgment may be reached that he is guilty, it is manifestly clear that full opportunity must be given at every stage in such appellate procedure for the accused to be heard and to reply to matters, both of law and fact, urged against him. The practice employed here is unlike the conventional appellate proceedings where the determination of the appellate tribunal normally affirms the judgment or reverses for error and remands the case for a new trial where the defendant has full opportunity to present his defense.

 There was evidence at the trial which could be the basis for a determination, after proper appellate procedure, that the plaintiff actively engaged in Communist activities, had been issued a card in the Communist Party, and had recruited members of the Communist Party from members of his local lodge. The plaintiff contends now, as was his principal contention at the trial, that there was no such evidence with respect to any action subsequent to the adoption on April 1, 1949, of Section 2, Article XXV, of the Constitution, under which plaintiff was charged. It was clearly a matter for proper appellate consideration as to whether or not the plaintiff is chargeable with knowledge of decisions of the Association prior to his membership therein holding Communist activity to be violative of its laws covering 'dual unionism' and 'improper conduct,' and of motion *fn2" adopted by the Executive Council, circularized in Official Circular No. 183, under date of August 15, 1925, and of motion *fn3" adopted by the Executive Council on January 13, 1947, circularized in Official Circular No. 474, under date of February 6, 1947. *fn4"

 The following allegation of the complaint gives rise to much concern:

 'The procedure at the said Grand Lodge Convention was controlled completely by defendants. Plaintiff's request to appear before said Convention was refused; and said Convention was misinformed by the defendants and their agents as to the facts involved and as to plaintiff's position thereon.'

 In his memorandum of points and authorities in support of his motion for summary judgment, plaintiff seems to have converted this charge into two other charges, namely, that the appeal to the International President was taken without notice to him and without giving him an opportunity to be heard, and that the Appeals and Grievance Committee of the Convention, appointed by the International President, and completely controlled by him and the other defendants, merely listened to plaintiff in silence, asked him if he had anything more to say and directed his removal from the hearing room, and thereafter heard one of the witnesses who had testified against plaintiff before the trial committee and a member of the Executive Council.

 Exhibits attached to defendants' motion for summary judgment show that the complainant at the original trial wrote the International President a letter, in which he filed an appeal and summarized evidence at the trial of plaintiff's guilt, and enclosed copy of the verbatim transcript of the trial. The International President then addressed a letter jointly to the president and the recording secretary of the local lodge, advising that an appeal had been taken, and directing that he be furnished with certain papers respecting the trial. In his letter transmitting the requested papers, the recording secretary stated:

 'Your letter will be read at the next meeting of the Lodge so that the membership present will know that an appeal has been made to the International President, in regard to the decision of Lodge ...

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