SWYGERT, Circuit Judge.
Two actions involving section 101(a), subsections (4) and (5), of the Labor-Management Reporting and Disclosure Act of 1959 (Landrum-Griffin Act), 73 Stat. 522, 29 U.S.C. § 411(a) (4) (5) (Supp. IV, 1962), were consolidated for trial by the district court. This appeal is from a judgment for plaintiffs.
In the first action seven members of Local Union No. 9 (Chicago) of the International Brotherhood of Electrical Workers, AFL-CIO, sought to enjoin the local union from enforcing certain penalties imposed upon them following internal union trials wherein they were charged with creating dissension among and slandering fellow union members. In the second action five of the original plaintiffs sought the same relief against the officers and the trial board of the local union.
A résumé of the procedural aspects of the union trials follows. Plaintiffs were charged with two offenses which are defined in the International constitution as follows:
The constitution provided that the executive board of the local union should constitute the trial board. Before the union trials began plaintiffs asked that the composition of the trial board be changed. They invoked a provision of the constitution that "no [executive] board member shall sit in a case which affects his own employer, or which involves a member working for the same employer." In such circumstance the constitution provides that the executive board member shall be disqualified and the president of the local union shall appoint a substitute to fill the vacancy occurring on the trial board.
Pursuant to this constitutional directive, the president of Local Union No. 9 appointed substitutes to fill four vacancies on the board. At no time before or during the internal trials did the plaintiffs object to the composition or the method of selection of the newly constituted trial board.
The trial board, after finding the plaintiffs guilty, said that it did not "desire to create any financial hardship upon his family." Accordingly, it directed that each plaintiff be ineligible to participate in the affairs of the local union for a period of three years or one year depending upon his involvement in the proscribed conduct. The board emphasized that its action was not to be construed as interference with the right of the plaintiffs to work at their present job or at any other job within the jurisdiction of the local union or the International union.
Plaintiffs appealed the decision to the International vice president on May 25, 1960. Despite the pendency of the appeal, plaintiffs filed their first action in the district court on June 9, 1960.
On May 15, 1961, the vice president of the International union confirmed the trial board's decision. However, he reduced the penalties so that the membership rights and privileges of all the plaintiffs were restored by July 25, 1961.
Plaintiffs subsequently appealed to the International president. Plaintiffs contended that they would be prohibited from running for union office after the penalty period expired. The president held they were in error, and the only interpretation which could be given to the decision of the board as commuted by the International vice president was that plaintiffs were entitled to participate in all activities, including the running for office, after July 25, 1961.
Thereafter, on September 15, 1961, the International executive council affirmed the president's decision and the International convention affirmed on September 14, 1962.
By the time the cases were tried in the district court in October, 1962, all rights, privileges, and benefits enjoyed by members of the local union had been restored to plaintiffs.
In the district court plaintiffs contended that the union trials were not fair as required by section 101(a) (5) of the Landrum-Griffin Act. This section provides that no member of any labor organization may be disciplined unless he has been (1) served with written specific charges, (2) given a reasonable time to prepare his defense, and (3) afforded a full and fair hearing.
The district judge ruled that requirements one and two of the statute had been met. He found, however, that although the union trial proceedings were in accord with the International constitution, plaintiffs had not received a fair hearing because of an inherent defect in the constitution. The constitution provided that when a member of the trial board was disqualified, substitution should be made by the local union president. In the instant cases one of the charges against the plaintiffs was slandering the president of the local union. Because four of the five members of the trial board had been appointed by the president, who was allegedly interested in the outcome of the trial and who testified against plaintiffs, the district court concluded that the board was not impartial.
Defendants moved to dismiss the actions filed in the district court for lack of jurisdiction over the subject matter because (1) plaintiffs had failed to exhaust internal administrative remedies required by section 101(a) (4) of the Landrum-Griffin Act, (2) plaintiffs had failed to join the local union as an indispensable party, and (3) neither action was a case or controversy cognizable by the federal courts, that is, they were moot. The motion was denied.
In this appeal defendants contend that the district judge erred in denying the motion to dismiss, refusing to admit in evidence the transcript of the union trials, awarding damages, and determining that the trials were not fair.
The district judge ruled that the cases were not moot because the procedure followed in the union trials violated the Landrum-Griffin Act, and "in future trials of union members, perhaps of these same men, the same procedures may be followed." As authority, the judge cited United States v. W. T. Grant Co., 345 U.S. 629, 73 S.Ct. 894, 97 L.Ed. 1303 (1953); Local 74, United Bhd. of Carpenters v. N. L. R. B., 341 U.S. 707, 71 S.Ct. 966, 95 L.Ed. 1309 (1951); and Walling v. Helmerich & Payne, Inc., 323 U.S. 37, 65 S.Ct. 11, 89 L.Ed. 29 (1944). He said:
We believe, however, that the cases were moot at the time they were heard and should have been dismissed.
There are differences that make Grant, Carpenters Union, and Helmerich & Payne inapposite to the instant situation. Those cases were injunction suits seeking to enjoin specific types of conduct. The Court held that cessation of illegal conduct did not diminish the risk of future similar conduct; therefore, the cases were not moot. Here plaintiffs sought to enjoin the enforcement of the penalties imposed upon them. However, at the time the cases were heard the penalties had been served and the union rights restored. There was nothing to enjoin.
It should be noted that plaintiffs did not seek to enjoin the future enforcement of the assailed constitutional provision. Should a union member claim in the future that this provision violates the Landrum-Griffin Act, he would have to institute a new suit to determine the issue.
The instant cases are analogous to United States v. St. Pierre, 319 U.S. 41, 63 S.Ct. 910, 87 L.Ed. 1199 (1943), and Parker v. Ellis, 362 U.S. 574, 80 S.Ct. 909,
Even more apposite is Patterson v. International Alliance of Theatrical Employees, 323 F.2d 368 (10th Cir.1963). In that case, a union member asked the district court to void an order of the union suspending his membership for six months because of alleged misconduct. He requested the suspension be expunged from the records of the local union and that the union be enjoined from enforcing the order. The hearing before the district court came on subsequent to the expiration of the suspension order and when the plaintiff was again enjoying full membership privileges. The district court dismissed the case as moot. Affirming, the court of appeals said:
Our holding that the instant cases were moot and should have been dismissed makes it unnecessary to discuss the other alleged errors. We are mindful of what the Supreme Court said in United States v. Alaska S. S. Co., 253 U.S. 113, 116, 40 S.Ct. 448, 449, 64 L.Ed. 808 (1920):
The judgment is reversed with direction to dismiss the actions.