ALFRED J. CAMERON & others vs. MARTIN P. DURKIN & others.

BILL IN EQUITY, filed in the Superior Court on July 14, 1944.

The defendants originally designated in the bill were certain named defendants. An amendment of the bill allowed on March 15, 1946, added as defendants "each and every the other persons who are members of Local Unions 12 and 537 of the United Association of Journeymen Plumbers and Steam Fitters of the United States and Canada, (a voluntary association) who are too numerous to be herein named individually and whose names are to the plaintiffs unknown and who are fairly represented by . . . [certain of the named] defendants . . . who are officers of said Local Union 12 and . . . [certain of the named] defendants . . . who are officers of said Local Union 537"; and added the allegation that the suit was brought against the named defendants "and each and every the other persons who are members of Local Unions 12 and 537 of said Association who are too numerous to be herein named individually and whose names are to the plaintiffs unknown and who are fairly represented by" certain named defendants.

The suit was heard by Cabot, J.

The claim of appeal from the final decree on the merits of March 15, 1946, was filed in the Superior Court on March 26, 1946. The appeal was entered in this court on June 26, 1946.

M. F. O'Donoghue of the District of Columbia bar, (E. McPartlin with him,) for the defendants.

M. T. Hall, (J. P. Driscoll with him,) for the plaintiffs.

LUMMUS, J. The plaintiffs bring this bill as representatives of the members of Local 289, located in Waltham and vicinity, and the members of Local 448, located in Framingham and vicinity, of the United Association of Journeymen Plumbers and Steam Fitters of the United States and Canada, a voluntary labor association, against some of the general officers of said association, and the members of Locals 12 and 537, located in Boston. All these locals are situated within twenty miles of Boston.

In 1924, at a general convention of the association, a resolution was defeated that would have given the Boston Local 537 the entire jurisdiction over steam fitting within a

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radius of twenty miles of Boston. But Local 12, composed of plumbers, and Local 537, composed of steam fitters, continued to aspire to extend their jurisdiction over all the territory within twenty miles of Boston. In June, 1944, the general president and the general executive board of the United Association ordered the consolidation of all plumbers in that territory into Local 12 and all steam fitters into Local 537. Appeal was claimed to the next general convention. This bill in equity was brought to restrain the defendants from putting that order into effect. The next general convention would normally have been held in 1946, but the holding of a convention is not compulsory, and a convention is never held except by a vote of a majority of the membership.

Section 131 of the constitution of the United Association provides: "Whenever, in the judgment of the general president, it is apparent that there is a superfluous number of local unions in any locality and that a consolidation would be for the best interest of the United Association, locally or at large, he shall have the power to order two or more of such local unions to consolidate and to enforce the consolidation of said territory in one local union, provided such course receives the sanction of the general executive board." Section 26 of the constitution provides that "Decisions made by a convention shall not be changed between conventions, except by a referendum vote." Section 24 of the constitution provides that "The general executive board shall have full discretionary power over all things connected with the association between conventions (except decisions made at conventions) . . .." Section 25 of the constitution provides that "Any decision made by the general executive board shall be subject to appeal to the following convention if so desired within sixty days after notification of decision. But the decision shall be and remain effective for all purposes during the pendency of any such appeal, and until the following convention decides the appeal or otherwise determines and directs."

From an interlocutory decree allowing an amendment to the bill, entered on March 15, 1946, the defendants appealed. But the allowance of an amendment is commonly

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discretionary, and we think it was in this case. We find no error in the allowance of the amendment. There was no appeal from the overruling of the demurrer of the defendants Durkin and Gillis, but we assume that the propriety of that action was open upon the appeal from the final decree. Smith v. Board of Appeals of Fall River, 319 Mass. 341, 342. But Durkin was the general president of the United Association, and as such participated in the order of consolidation made in June, 1944, which is attacked in the bill. Gillis was a general organizer of the United Association, resident in Massachusetts, and as such had power "to suspend and reorganize local unions when directed by and with the consent of the general president," and to suspend or expel any local union for "violation of the constitution, rules and established customs of the United Association." Constitution, Sections 30, 35. The bill alleges that he made a report to the general executive board which was the foundation of the order of consolidation of June, 1944. The bill further alleges that Gillis has been instructed, in the event that the members of Locals 289 and 448 shall refuse to accept the consolidation ordered in June, 1944, to exercise his constitutional authority to suspend or expel those locals from the United Association. We think that both Durkin and Gillis were properly made parties defendant, and that their demurrer was rightly overruled.

The rights of members of the United Association and the powers of its officers were fixed by the constitution. Malloy v. Carroll, 272 Mass. 524, 536. Mulcahy v. Huddell, 272 Mass. 539, 544. Sullivan v. Barrows, 303 Mass. 197, 201. The plaintiffs contend that the order of consolidation of June, 1944, was invalid, for one reason because Section 131 of the constitution permits consolidation only into a single local union, whereas the order was for consolidation into two local unions; and for another reason because the vote of the convention in 1924, rejecting a proposal for a similar consolidation, precluded any such action as the general president and the general executive board purported to take in June, 1944, because Section 26 of the constitution provided that "Decisions made by a convention shall not be changed

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between conventions, except by a referendum vote," which was not had. The judge put his decision in favor of the plaintiffs upon the former reason just stated, and we think his decision was right. We think, moreover, that it would have been equally right if rested upon the latter reason.

The defendants rely upon Section 2 of the constitution, which provides that "no local union is conceded territorial jurisdiction other than the current working day in said territory." But we think that that provision must yield if need be to the later and more detailed provisions of Section 131, permitting consolidation only into a single local union, and Section 26, forbidding the change of a convention decision, except by a referendum vote.

The defendants invoke the familiar rule that members of a voluntary association cannot resort to the courts while they have a genuine and not a merely illusory right to seek justice in the tribunals of the association. Barbrick v. Huddell, 245 Mass. 428, 436. Puleio v. Sons of Itala & Neighborhood Mutual Benefit Society, 266 Mass. 328. Malloy v. Carroll, 272 Mass. 524, 536. Snay v. Lovely, 276 Mass. 159, 164. Henry v. Twichell, 286 Mass. 106, 117. In the present case, although the constitution provides for a convention every four years, the holding of any convention at any time is not compulsory. A majority of the membership may prevent the holding of any convention. The appeal taken by the plaintiffs was to the "following convention," but at the time when the appeal was taken and at the time when the final decree in this case was entered on March 15, 1946, there was no assurance that there would ever be any convention at which the appeal could be heard. The correctness of the final decree must be determined by the facts appearing at the time when it was entered. The defendants' assertion that in fact a convention was held in September, 1946, is therefore immaterial. There had been no convention during the ten years from 1928 to 1938. The judge in his findings, filed on February 23, 1945, found that it was "entirely problematical . . . when, if ever, another convention will be held." Upon the facts recited, we think that there was no assurance that the appeal would ever be heard,

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and that the only certainty was that the consolidation would remain in force indefinitely, under Section 25 of the constitution. The remedy by appeal under those circumstances appears to us illusory. Consequently the plaintiffs had a right to resort to the courts. This case is not governed by Puleio v. Sons of Itala & Neighborhood Mutual Benefit Society, 266 Mass. 328, Mulcahy v. Huddell, 272 Mass. 539, 545, and Snay v. Lovely, 276 Mass. 159, 164. In the present case there was no error in the entry on March 15, 1946, of a final decree for the plaintiffs, with costs.

The defendant Durkin filed a petition for a rehearing in the court below, and appealed from an interlocutory decree denying it, entered on February 11, 1946. The granting of a rehearing was discretionary. Norcross v. Haskell, 262 Mass. 568, 570. Macomber v. King, 288 Mass. 381, 383. Johnson v. Johnson, 300 Mass. 24, 28. Peterson v. Hopson, 306 Mass. 597, 601. We find no error in the denial.

On April 17, 1946, some of the plaintiffs brought a petition praying that the defendants Durkin, Callahan and Brophy among others, be adjudged in contempt of the final decree. On May 1, 1946, a final decree was entered adjudging them in contempt, and ordering them to pay to the plaintiffs $165 to compensate them for the injury done them by the contempt. The contempt was dealt with civilly and not criminally, and a simple appeal from the final decree in the contempt proceedings brought the matter here. Godard v. Babson-Dow Manuf. Co. 319 Mass. 345, 348. The appeal from the final decree of March 15, 1946, was not entered in this court until June 26, 1946. Therefore that final decree remained in force all through the pendency of the proceedings for contempt, and constituted a sufficient foundation for those proceedings. Lowell Bar Association v. Loeb, 315 Mass. 176, 189. Scola v. Scola, 318 Mass. 9. A perusal of the evidence in the contempt proceedings convinces us that it supports the decree of May 1, 1946.

The entry must be

Interlocutory decrees appealed from affirmed.

Final decrees of March 15, 1946, and May 1, 1946, affirmed with costs.