DeMott v. Amalgamated Meat Cutters

Herbert V. DeMott appeals from adverse judgments in two actions, tried to the court, in which he sought reinstatement as a member in good standing of a labor union, restoration to office as secretary-treasurer of a union local, damages for wrongful expulsion from membership and office, and damages for slander. The actions were brought against Amalgamated Meat Cutters and Butcher Workmen of North America and four of its agents and representatives, to wit, Earl W. Jimerson, the International President, Patrick E. Gorman, the International Secretary, Max J. Osslo, a member of the union’s International Executive Board, and Harold Woodard. The actions were tried concurrently and the appeals are presented on a single set of briefs.

Plaintiff became a member of the union in 1935 and since 1937 he had been an officer of union local Number 551, whose headquarters were in Wilmington, California. On October 24, 1955, DeMott was a member in good standing of the union and was secretary-treasurer of the local, an elective and salaried position. At that time local Number 551 was involved in a jurisdictional dispute between the Butchers Union and the Retail Clerks Union. It is sufficient to say at this point that DeMott was taking an active part in the dispute. There was considerable dissention within the local and at a meeting of the executive board of the local which was held on October 20th. DeMott was rebuked by other members of the board for suggesting that the local sever its connection with the butchers union and affiliate with the retail clerks.

On October 24th, DeMott sent a letter and a telegram to Gorman, who was International Secretary of the union, informing him that as of that date local Number 551 had affiliated with local Number 563 (A.M.C. and B.W.), whose headquarters were in Huntington Park. That same day, Osslo, who was a member of the International Executive Board, received a telegram from Jimerson, the union president; the wire stated that because of actions by DeMott which had

In appointing Osslo as receiver, Jimerson purported to exercise emergency powers granted him by article II, section 3 of the constitution of the international union. That section provided, in material part, that the president "shall assume charge of the affairs of any Local Union at any time when trouble of an internal nature threatens the effectiveness of the Local. He shall personally, or by deputy, administer the Local’s affairs until he is satisfied that peace and harmony prevail.” It also authorized Jimerson or his deputy to suspend the power of local union officers and to remove them from office upon evidence of misconduct, provided, however, that "no officer may be removed from office unless and until any such officer is, after proper and informative formal notice, given the opportunity of a full hearing in a manner and at such time and place as may be prescribed by the International Executive Board.”

November 3d, DeMott filed an action for injunctive relief and damages, in which he sought orders restoring him to membership in the union and to office in the local; he also sought from defendants substantial damages on account of their allegedly wrongful acts in suspending him from membership and office, as well as an award of punitive damages. By a second cause of action, DeMott sought to recover damages for slander. November 4th, DeMott filed a petition for writ of mandamus, likewise seeking reinstatement to membership and office. He concedes in his brief that except for the cause of action for slander set forth in the action for injunctive relief, the two lawsuits are substantially similar.

On November 16th, after the present actions had been insti

The combined charges against DeMott were presented at a general meeting of the local held on December 6th, at which time a trial committee consisting of seven members was elected by secret ballot. Trial was set for December 19th at the local headquarters in Wilmington. Pursuant to a resolution of the members present, a copy of the charges was mailed to DeMott; he was also informed that he had the right to present evidence on his behalf and to be represented by counsel at the trial. DeMott attended the trial in the company of his attorney, Mr. Smith. After the chairman of the trial committee read the charges, Smith stated that he was appearing specially in order to challenge the membership of the committee ; the challenge was rejected. Various witnesses were sworn and gave testimony against DeMott, but Smith declined to cross-examine them, reiterating his statement that he was making a special appearance. DeMott and his attorney then

The report and recommendations of the trial committee, together with extracts from the testimony at the trial, were read at a general meeting of the local on January 3, 1956. The members present voted 103 to 22 by secret ballot to accept the committee’s recommendations.

January 9th, DeMott was advised by letter of the action of the membership and informed that no steps would be taken with respect to the fine until he had a reasonable opportunity to appeal to the international executive board. Two days later, DeMott sent to the international executive board in Chicago, his notice of appeal from the trial committee’s recommendations and the vote of the membership. February 2d, DeMott also filed his notice of appeal from the “removal, suspension, expulsion and ouster” which occurred on October 25, 1955. By telegrams dated March 2d, 21st and 22d, Jimerson informed DeMott that the hearing upon both appeals would be held June 6, 1956 at a regular meeting of the international executive board in Cincinnati; that DeMott would be afforded a full opportunity to appear and participate in the hearing in person and with counsel, and that neither Gorman, Jimerson nor Osslo would sit on the board or participate in its decision. The record does not disclose whether the hearing was actually held, for the reason that the present actions were tried during March, April and May, 1956.

We now turn to a consideration of the pleadings. The action for injunctive relief and damages was tried on DeMott’s first amended complaint and the answer thereto. In his first amended complaint, DeMott alleged that he was suspended, removed and expelled from his office and from membership in the local by defendants on October 25, 1955; that he was not guilty of any infringement of the constitution or by-laws of the union; that no written charges were brought against him; that no hearing was held upon the charges; that the acts of suspension, removal and expulsion without a hearing and without the filing of written charges were in contravention of the union constitution; that he had no appellate remedy within the union for the reason that the union consti

The mandamus proceeding was tried on DeMott’s third amended petition and the answer thereto. Additional material allegations of the third amended petition were that the local’s affairs had been under the control of the international union since October 25th; that DeMott’s trial was therefore not a trial by the local, but was, rather, an act of the International; that an appeal to the international executive board from the vote of the membership would be futile for the reason that three of the 21 members of the board are defendants Jimerson, Gorman and Osslo; that said defendants would exercise improper influence over the remaining members of the board. In their answer, defendants repeated the substance of the allegations of their answer in the action for injunctive relief and damages, alleged the taking of appeals by DeMott, the communications to DeMott of March 2d, 21st and 22d, and the pendency of both appeals before the international executive board.

The evidence at the trial consisted of the letters, documents and telegrams to which we have already referred, together with the testimony of DeMott, Woodard and Osslo.

DeMott testified that he disagreed with the policy of the union’s international officers with respect to management of the members’ health and welfare fund. He discussed the subject with Woodard on many occasions prior to October 25th. Woodard told him that unless he consented to the

Woodard did not recall telling Osslo that DeMott had taken the $1,000 for his own use. However, Osslo admitted being told by Woodard prior to October 25th that DeMott had removed records from local headquarters and was using the automobile and credit cards. A Mr. Sapiro, counsel for the local, told Osslo that DeMott had taken the $1,000. Osslo telephoned Gorman and informed him of what he had learned from Woodard and Sapiro. Upon receiving this information, Gorman presumably relayed it to Jimerson who appointed Osslo as receiver of the local.

At the close of plaintiff’s evidence, defendants made motions for a nonsuit in the action for injunctive relief and to dismiss the petition for writ of mandamus. Both motions were granted. In granting the motions, the court ruled that DeMott had failed to exhaust his remedies within the union prior to the commencement of the actions, in that the evidence

The first contention to be considered is that the court erred in determining that DeMott had failed to exhaust his internal remedies within the union before commencing the present actions and had failed to establish the futility of the two appeals which were pending before the international executive board at the time of trial. If the court’s determination was correct, it is decisive against all the relief sought by DeMott with the exception of damages for slander.

It is the general rule that a person seeking judicial relief against an organization of which he is a member must first invoke and exhaust the remedies provided by that organization applicable to his grievance. It is only when an organization violates its rules for appellate review or there is an affirmative showing that it would be futile to invoke them that further pursuit of internal relief is excused. The organization’s violation of its own rules which inflicts the initial wrong affords no right for direct resort to the courts. (Holder-by v. International Union etc. Engineers, 45 Cal.2d 843 [ 291 P.2d 463 ] ; Gonzales v. International Assn. of Machinists, 142 Cal.App.2d 207 [ 298 P.2d 92 ].)

The actions sought to be reviewed and annulled were (1) the appointment of a receiver by Jimerson, (2) Osslo’s purported suspension of DeMott from membership in the local and the international and, (3), the action of the local in expelling him from membership and imposing a fine.

It cannot be doubted that conditions existed which justified the action of Jimerson in taking over control of the local by means of a receivership. Regardless of the merits of the controversies between the contending factions in the local with respect to affiliation with another local, the disputes were acute, and called for intervention on the part of the international. DeMott repeatedly refers to the action of Jimerson as an “ouster” from office and membership. The appointment of a receiver suspended the powers of officers of the local

The action of Osslo which purported to suspend DeMott from membership in the local and the international without a hearing of any sort was arbitrary and not authorized by Jimerson as president of the international. The purported suspension was not recognized by the local. DeMott was advised in writing by the local that he was privileged to attend meetings as a member. Moreover, the local proceeded to entertain charges against him which affected his status as a member and officer of the union. But if the purported suspension from membership, as ordered by Osslo, had the effect of removing DeMott from office, it was ineffectual unless approved by the international executive board after notice and a hearing. Osslo’s action, which DeMott refers to as an “ouster,” not having been approved by the board, was not a removal of DeMott from office. The effect of the so-called order was subject to review within the international union. DeMott recognized this fact in taking an appeal from the actions of Jimerson and Osslo. We have already quoted that portion of article II, section 3 of the constitution which states that removal of a local officer if ordered under the president’s emergency power does not become final until the matter has been reviewed by the international executive board.

This brings us to the matter of the trial within the local which resulted in DeMott’s expulsion. Article IV, section 2 of the constitution states that a local officer who has been impeached, removed or dismissed by vote of the membership may appeal to the international board; such appeal may be heard either on the basis of the record of proceedings before the local trial committee or as a trial de novo. The same appellate procedure applies to expulsions by the local. It is undisputed that plaintiff noticed appeals from the actions of Jimerson and Osslo and also from his expulsion by the local.

DeMott earnestly argues, however, that he was excused

The international executive board was composed of 21 members. It is true that DeMott testified as to conversations with Woodard in which Woodard told him that he would be removed from office and expelled from the local without recourse. DeMott could also reasonably have expected that neither Jimerson, Gorman nor Osslo would be able to review his case impartially. But Jimerson informed him that they would not participate in the hearing and there was no evidence from which it could be inferred that his statement was untrue. There was also no evidence that any of the other 18 members of the board were either hostile towards DeMott, were under the influence of Jimerson, Gorman or Osslo, or that they would not afford him a fair hearing. The court properly ruled that plaintiff wholly failed to prove circumstances sufficient to excuse him from compliance with the general rule requiring the exhaustion of remedies within the union.

The next contention to be considered on the appeals is that the court erred in excluding from evidence a purported settlement agreement which, it is urged, was fully executed by the parties.

The trial commenced on March 28,1956. After several days of testimony, the matter was continued until April 17th and then until May 15th upon representations by counsel that they were attempting to reach a settlement. DeMott’s attorney prepared a typewritten agreement, dated April 2d. It is sufficient to say of the agreement that, if properly executed, it would have constituted a complete and final settlement of the litigation in a manner favorable to DeMott. The document referred to DeMott as first party and to defendants as second party. At the right side of the foot of the agreement space was provided for the signatures of DeMott and of second party “By Aaron Sapiro, Their Attorney.” To the left, appeared the words: “Amalgamated Meat Cutters and Butcher Workmen op North America By_President By_Secretary.” Below the word “Secretary” were the words “Second Party.”

“Would you kindly sign in the place indicated for the signature of the attorney, have your clients sign in the places indicated for their respective signatures and thereafter return all but three copies to me. When I receive the copies, I will return to you your fourth copy which I am requesting through this media that you sign today so that I may have something in my file until the document is fully signed.

“In accordance with our discussion, would you please have the fully signed copies returned to me prior to April 17, in that the 17th is the return date ordered by Judge Kincaid.”

Attorney Sapiro signed and returned one copy of the agreement, as requested by counsel for DeMott. In his forwarding letter, he wrote that “Tour letter correctly states our understanding. ’ ’

When trial resumed on May 15th, plaintiff offered the agreement in evidence. It did not bear the signatures of Jimerson and Gorman. Defendants thereupon objected to its admission in evidence on the ground that it had not been fully executed by the parties. The objection was sustained. DeMott’s counsel next offered to prove that the written agreement was intended to be merely a memorial of an oral settlement, which had been agreed upon April 2d by himself and a Mr. Block, a member of the international executive board. The court rejected his offer of proof. Defendants then offered in evidence an unexecuted counteroffer in writing, dated May 3d, apparently in order to show that negotiations for a settlement continued throughout the months of April and early May. The document differed in material particulars from the agreement presented by DeMott, and upon plaintiff’s objection it was likewise excluded from evidence.

An examination of the letters exchanged by counsel affords a complete answer to plaintiff’s arguments. It affirmatively appears from the letters of counsel that the parties were negotiating with a view towards a written settlement, that they did not intend the April 2d agreement to be binding until it was signed by Jimerson and Gorman, and that DeMott’s attorney requested Sapiro’s signature only “so that I may have something in my file until the document is fully

The second cause of action in the action for injunctive relief alleged that defendants had orally uttered and published false and defamatory statements which included “that plaintiff has misappropriated funds and assets of said Local ; that plaintiff had mishandled and lost funds and assets of said Local; that plaintiff has not been exercising diligence for the improvement of working conditions of the members of said Local ; that plaintiff has been guilty of misconduct in office; that plaintiff has used said Local to improperly enhance plaintiff’s own financial condition.” It was alleged that the statements were made maliciously and for the purpose of injuring plaintiff in his office and business and to deprive him of an opportunity to earn a livelihood as a butcher. Defendants demurred to the second cause of action upon the ground, among others, that it was uncertain in that it could not be ascertained therefrom what defamatory words were allegedly spoken or when or where or to whom they were spoken. The demurrer was overruled. No point is made on the appeal that the complaint charged slander in such general terms as to render it extremely difficult for the defendants to prepare any defense.

The proof as to the alleged statements was vague. There was no evidence that any of the defendants stated that plaintiff had mishandled, lost or misappropriated funds of the union or had used his position to enhance his own financial position. The most that could be inferred from the testimony respecting the statements of Woodard and Osslo was that Woodard told Osslo that plaintiff was removing or had removed papers, records and credit cards from the office of the union and that Osslo told Gorman that he had been informed of that fact. Osslo also was told by Sapiro, attorney for the union, about the check for $1,000 that had been issued to and cashed by plaintiff, and Osslo relayed this information to Gorman.

There was no evidence as to the words used by Osslo in his communication to Gorman. Presumably he merely stated

In an authoritative article “Proof In Libel Actions In California” Mr. John M. Hall, of the Los Angeles Bar, wrote as follows: “The ‘absence of malice is the absence of enmity.’ ” “This definition must be further qualified by pointing out that there may be a certain kind of ill will toward plaintiff

Statements made without malice wholly within the ranks of a labor union during a dispute between contending factions over union policies and administration, and pertinent thereto, should be regarded as privileged. (Emde v. San Joaquin County etc. Council, 23 Cal.2d 146 [ 143 P.2d 20 , 150 A.L.R. 916 ] ; Campbell v. Jewish Committee for Personal Service, 125 Cal.App.2d 771 [ 271 P.2d 185 ].) In the present case the statements that were proved were clearly within the realm of privilege. Although privilege was not pleaded by the defendants it affirmatively appeared from the pleadings that the communications, if slanderous at all, were between parties interested in the subject discussed. (Civ. Code, §47; Locke v. Mitchell, 7 Cal.2d 599 [ 61 P.2d 922 ].)

The trial court correctly concluded as a matter of law that the statements of the defendants were privileged. (See Hall, So.Cal.L.Rev., supra, vol. XXIV, No. 4, pp. 373, 374.)

The orders denying motions for new trial not being appeal-able, the notices of appeal from those orders are void and of no effect. The judgments are affirmed.

Wood (Parker), J., and Vallée, J., concurred.

A petition for a rehearing was denied February 17, 1958, and appellant’s petition for a hearing by the Supreme Court was denied March 19, 1958.