(dissenting).
Because the questions involved are of considerable importance within the framework of the 1959 Labor Management Act, 29 U.S.C.A. § 401 et seq., it is necessary that the facts be stated fully and carefully.
On September 6,1960, Albert E. Burke was a member in good standing of appellant, Local 626, United Brotherhood of Carpenters and Joiners of America, Wilmington, Delaware. On that day Richard Toy, the union shop steward at a construction job, Kirkwood Highway in New Castle County, Delaware, telephoned ap-pellee Sheridan, then business agent of the union, asking that three named carpenters including Burke, be assigned to that work. Sheridan said he would not assign Burke because he had not been out of work long enough. The next day Burke saw Sheridan at the union hall and asked for a referral slip for employment on the Kirkwood project. Sheridan refused; he claimed Toy had not asked for him; he told Burke the job had been filled. Though Burke had been unemployed two weeks, Sheridan gave William Lloyd the job; Lloyd had been out of work for only two days. Burke left and found Toy who verified that he had asked Sheridan for Burke. The latter returned to the hall.
The court found that Burke “ * * * said he grabbed plaintiff by the lapels and ‘pushed him pretty rough.’ Plaintiff said that Burke knocked him off his chair to the floor and badly bent or broke his glasses. Plaintiff did not retaliate. Burke’s action was caused by the belief that plaintiff had prevented him from securing employment. Later in the same day plaintiff had Burke arrested; and on October 21, 1960 Burke was tried and convicted of assault in the Municipal Court at Wilmington.” On October 6th, Burke, acting within the union, preferred charges against Sheridan, alleging that he had violated Sections 43L and 56A of the Constitution and Laws of the parent Brotherhood. These read:
“43L. No member shall injure another member by undermining such member in prices or wages, nor commit any willful act by which the reputation of the member is injured or employment jeopardized.”
“5 6A. A member must exhaust all resources allowed by the Constitution and Laws of the United Brotherhood before taking a case to the civil courts.”
Sheridan was tried by the union Trial Committee on November 2, 1960. The district court found as facts that “In support of Sec. 43L charge Burke made two contentions: first, that plaintiff had jeopardized his employment by keeping him off the job, and second, by having caused the Municipal Court action to be brought, plaintiff had injured his (Burke’s) reputation so that he could not get a Civil Service or Government job. In support of the charge under Sec. 56A Burke contended that plaintiff had carried his grievance with Burke to the Municipal Court before exhausting all of the resources within the union provided by the Constitution of the United Brotherhood. Plaintiff read a prepared statement in which he defended himself against both charges.” That same night the Trial Committee reported to the union meeting it had found Sheridan guilty of violating both 43L and 56A. The membership voted to remove him as Business Agent. The penalty was imposed because of the two offenses and not with respect to either of them separately.
Thereafter Sheridan brought this suit against the union, alleging the latter’s discharge of him was illegal. He asked for reinstatement as Business Agent and for payment to him of all wages and employment benefits since November 2, 1960.
The district court held that it had jurisdiction under the Labor-Management Reporting and Disclosure Act of 1959, Sections 102, 609, 29 U.S.C.A. §§ 412, 529. As stated it found in favor of the plaintiff who was allowed back pay to the expiration date of his term of office, June 16, 1961. Under Section 102 of the *162Act the court, exercising its discretion, found in the word of the statute, that it would not be “appropriate” to reinstate plaintiff as Business Agent.
Appellant union advances the all purpose argument that the district court lacked jurisdiction because the Bill of Rights of the Act has no application to an employee-employer relationship. It also asserts that appellee failed to exhaust his intraunion remedies prior to instituting this litigation.
Section 101(a) (4) of the Act reads:
“No labor organization shall limit the right of any member thereof to institute an action in any court or in a proceeding before any administrative agency, irrespective of whether or not the labor organization, or its officers are named as defendants or respondents in such action or proceeding, or the right of any member of a labor organization to appear as a witness in any judicial, administrative, or legislative proceeding, or to petition any legislature or to communicate with any legislator: Provided, That any such member may be required to exhaust reasonable hearing procedures (but not to exceed a four-month lapse of time) within such organization, before instituting legal or administrative proceedings against such organizations or any officer thereof: And provided further, That no interested employer or employer association shall directly or indirectly finance, encourage, or participate in, except as a party, any such action, proceeding, appearance, or petition.”
Section 102 reads:
“Any person whose rights secured by the provisions of this title have been infringed by any violation of this title may bring a civil action in a district court of the United States for such relief (including injunctions) as may be appropriate. Any such action against a labor organization shall be brought in the district court of the United States for the district where the alleged violation occurred, or where the principal office of such labor organization is located.”
Section 609 reads:
“It shall be unlawful for any labor organization, or any officer, agent, shop steward, or other representative of a labor organization, or any employee thereof to fine, suspend, expel, or otherwise discipline any of its members for exercising any right to which he is entitled under the provisions of this Act. The provisions of section 102 shall be applicable in the enforcement of this section.”
Under the first part of the charge Burke alleged that Sheridan had so injured his reputation by the police court action that “ * * * he could not get a Civil Service or Government job.” This finding of fact by the trial court is completely supported in the record. The union’s recording secretary in his testimony agreed that as to this the substance of Burke’s statement at the union hearing on Sheridan was “ * * * that by the charges brought by Sheridan in the municipal court Burke could not now hold a Civil Service or Government job * * * ” At the trial in the district court Burke was asked on cross-examination, “Now with respect to the charge how was your reputation jeopardized by what Mr. Sheridan did on September 27th ?” and he answered, “Well, I certainly couldn’t go back to this man and ask him for a job.” It is uncertain whether Burke in the above meant that he could “not go back” because of the disgrace of being arrested that day. It does not seem that he could have been referring to Sheridan’s refusal to furnish him a clearance for the job. There is nothing to indicate that the Kirkwood employer had ever heard of Burke. In any event what we are concerned with is the charge against Sheridan as made and interpreted by Burke at the union hearing. And that particular part of the charge cannot be said to accuse Sheridan as Business *163Agent but as a citizen who was a member of the union. As such he had the express right under Section 101(a) (4) to institute that criminal cause. That right is not controverted by appellant.
The second part of the 43L charge was that Burke’s employment was “jeopardized” by Sheridan’s refusal to allow him employment at Kirkwood. (Emphasis supplied.) Just as clearly, this was directed at Business Agent Sheridan and not at Sheridan individually or at his union membership.
The 56A charge asserted that Sheridan had not exhausted “all resources allowed by the Constitution and Laws of the United Brotherhood before taking a case to the civil courts.”1 That, like the first part of the 43L charge, relates to Sheridan as a union member bringing his criminal charges against Burke. It has no connection with Sheridan as Business Agent.
At this stage it is necessary to pass upon appellant’s contention that Sheridan had violated the statute in starting this action without first complying with the appellate procedure called for by the Brotherhood Constitution and Laws. I am unable to find any real holes in his appellate course of conduct after the union had removed him in endeavoring to bring his case before the President of the Brotherhood. He was found guilty of the charges on November 3, 1960. Four days later he wired the President protesting that action and saying that detailed letter would follow. The mentioned letter was sent November 9. A copy of this went to the local. The letter was informal but substantially an appeal. That same day Sheridan sent a letter to the Recording Secretary of the Local reading:
“I am appealing the action of Local Union # 626 in removing me from Office of Business Agent, at meeting of November 2,1960.
“I would like to call your attention to the requirement of the Constitution Section 57 Paragraph E — ”
Section 57, Paragraph E of the Brotherhood laws requires the local union to forward to the President a copy of the charges, trial minutes and answer to the appeal. These were not so sent. On November 30, 1960, the district representative of the Brotherhood’s National Office conferred with Sheridan and the latter gave him a complete file on the case, including copies of the charges and correspondence. The Brotherhood President had authority under 57F of the Constitution and Laws to decide this type of appeal on the papers before him where the union has not forwarded him the papers called for by 57E.
Finally on this point, appellant contend.") that Sheridan failed to comply with Section 57G of the Constitution and Laws. This reads, “All parties to an appeal to the General President are required to go before a Notary Public and make affidavit to the truth of their written or printed statements.” Appellant’s objection seems to be that since Sheridan did not have his letters of November 9th to the President and the local notarized his appeal was void. 57G does not say that or fairly imply it. There is no evidence of attempt to evade or avoid the required notarization; no evidence that it was not overlooked; no evidence that it would not have been readily attended to on notice of the omission. The fault is minor and was actually waived.2
*164Under all the circumstances appellee adequately complied with the provisions of Section 56A of the Brotherhood Constitution and Laws. Consequently he was not precluded under Section 101(a) (4) from going forward with this litigation.
As we have seen, Sheridan was convicted by the union of the two charges. The minutes of the meeting show no distinction was made between the two pertinent parts of the first charge or between the first and second charges. As we have also seen, the first pertinent part of the first charge (Burke’s reputation as affected by the criminal conviction) and the second charge (Sheridan going forward with the assault complaint before exhausting all union resources) are not against Sheridan as the Business Agent and officer of the local but for his acts as an individual member of the union. The verdict of guilty on both charges, though no distinction was made, must include that result on the second charge. Since it does and since the second charge is merely a corollary to the arrest and consequent damage to Burke’s reputation part of the first charge, there is an inference that the union found Sheridan guilty of that part of the first charge.
But we are given no valid clue as to what the Trial Committee decided regarding Sheridan’s blocking of Burke’s employment. Appellee’s counsel argues that the trial itself was a confused attempt to discipline plaintiff for causing the arrest of Burke. The circumstance that the Trial Committee in effect requested the shop steward Toy not to appear at the trial lends strength to that thought. Toy was thoroughly familiar with the facts supporting the charge of discrimination. It is true also that nowhere in the charges does “Business Agent” appear; and that both of the charges refer to plaintiff as a “member” not as “Business Agent”. Two other members of the local were tried during the November 2,1960 session of the Trial Board at which Sheridan was tried. The results of those trials were read to the local at its meeting of November 20,1960. As reported in the minutes these were identical for all three. The only differera-*165tiation was in the type of punishment meted out. One was expelled from membership; the second was fined; and the third Sheridan, was removed from office. Whether intentionally or otherwise, we simply have not been informed by anything tangible _ m the record that Sheridan s_ preventing Burke from working was included m the Committee s finding of gui y.
The union then argues that, assuming Sheridan was removed as Business Agent for having had Burke arrested, the district court would still have lacked jurisdiction of this litigation since it would mean reviewing grounds for discharge of Sheridan as a union employee. On the record before us, Sheridan was discharged as Business Agent not for wrongful conduct in that capacity but because he, as a union member, had taken criminal action against his brother member without first going through union procedure. That is not actually, nor can it be successfully, controverted by the majority opinion.
The particular chastisement ordered was available for use solely because Sheridan was the Business Agent. Had he been fined, suspended or expelled, the three courses specifically named in Section 609, there would have been no excuse at all for the majority position. Clearly, Sheridan would have been entitled to bring the criminal charges against Burke. It is only the particular type of discipline imposed that presents an opportunity of sorts to cast possible doubt upon the jurisdiction of the Act. Such doubt, if any, should disappear when it is considered that “fine, suspend, expel” comprise just about everything in the way of discipline a union local could in-fliet upon a member who did not hold office in the organization. What further ordinary sanction could be authorized is not readily conceivable. The strong indication remaining is that the phrase “or otherwise discipline” was designed to cover the unusual situations which might arise. Among those must be included the disciplining of a member, who held a union office, by depriving him of that office.
The maj opini(m noteg ^ ^ LMRp)A does not impair the right of the membershi of a union to remove an offi. cer f()r any reagon gufficient to it alon6) ^ <<an officer,s conduet) whether in his individual or official capacity) affects the confidence repoged in him by the union membership, and his effectiveness as an officer.” This is quite true but it has no bearing here. There was no attempt by the union’s membership to review Sheridan’s conduct to determine whether he should remain in office. The narrow function of the membership was to discipline Sheridan after and because he had been convicted by the union’s trial board of specific charges based upon Sections 43L and 56A of the union’s constitution. In convicting Sheridan of the 56A charge, the trial board was under the assumption, now conceded by the union to be erroneous, that a member of the union could be required to exhaust his internal union remedies prior to filing a criminal complaint. That charge has nothing to f° Wlth tbe employer-officer relationship betwfen Sheridan and the union. The members of the union, also under the same wrong assumption and not disputing the Propriety of the charges and con’ voted to remove him from office. Had he not been an officer’ as above stated they, would have fined, expelled, or suspended him from membership. Because he was an officer,^ they chose to discipline him by stripping him of his office‘ The form of sanction does not change the fact that they were diseiplining bim because> as_ a member of the umon, he was exercising a right protected by ^be LMRDA.
The reported decisions on this precise problem as yet are in the district courts, Burton v. Packinghouse Workers Union, 199 F.Supp. 138 (D.C.Ka. Nov. 22, 1981), involved the identical question, though arising under Section 101(a) (5) of the Act. The court there held “The rule, therefore, is that removal from office is discipline within § 101(a) (5) if the *166misconduct charged is that of a member rather than that of an officer.” In Salz-handler v. Caputo, 199 F.Supp. 554, 555 (S.D.N.Y. Aug. 3, 1961) plaintiff was a member and financial secretary of a union local. He circulated a written attack on the president of the local. He was tried as a member for violating provisions of the Brotherhood Constitution. He was convicted and “ * * * as a result, been barred from his office as financial secretary of Local 442 and from participating in and voting at union meetings.” He sued to enjoin alleged violations of equal rights and of freedom of speech and assembly provisions of the Labor-Management Reporting and Disclosure Act and for damages. The motion for preliminary injunction was refused, the court holding p. 557, that “Plaintiff has not shown that he is entitled to preliminary injunctive relief. Such a drastic remedy is inappropriate to the present posture of the case.” Hamilton v. Guinan, 199 F.Supp. 562, 565 (S.D.N.Y. Nov. 22,1961) is a later Southern District of New York opinion in which the court concluded it was without jurisdiction under the Act because the discipline was imposed on Hamilton as an officer of the union. The court, however, agreed with the earlier Salz-handler decision saying “ * * * but since the discipline was imposed on plaintiff in part for acts taken as a member of the union, jurisdiction apparently would lie under section 412.” 3 In another Southern District of New York suit under the Act, Rosen v. District Council 9, 198 F.Supp. 46 (S.D.N.Y. June 8, 1961), plaintiff was found by the union to have been associated with the Communist Party in violation of the union constitution and was prohibited from being a candidate for office for five years. A temporary injunction against interference with his right to run for office was denied. The Hamilton opinion (199 F.Supp. pp. 565, 566) in discussing this, states: “The court found that plaintiff had been given a full and fair hearing, in accordance with provisions in the union rules and with section 411(a) (5). The court did not discuss the issue of jurisdiction, but it is apparent that plaintiff had been disciplined for action he took as a member of the union, and thus sections 411(a) (5) and 412 were clearly applicable.”
Strauss v. International Brotherhood of Teamsters, 179 F.Supp. 297 (E.D.Pa. 1959) and Jackson v. Martin Co., 180 F.Supp. 475 (D.C.Md.1960) are cited to the contrary but neither of those opinvions dealt with removal of an officer for disciplinary reasons. Mamula v. United Steelworkers, 304 F.2d 108 (3 Cir. 1962) and Bennett v. Engineers Local 701, 207 F.Supp. 362 (D.Ore.1960), have no application to this appeal. The only other decision listed is Kelly v. Streho, 47 LRRM 2609 (E.D.Mich.1961). While its import is not too clear the holding there does state “ * * * That the legislative history * * * clearly shows that Title 1, Section 101(a) (5) secures safeguards against improper disciplinary action against union members, as members, but not as officers or employees of the union.” (Emphasis supplied.)
From the above it is evident that the case law to date on the LMRDA Act recognizes the validity of the proposition that when the union member who also holds a union office is disciplined for misconduct as a member, there is jurisdiction under the Act of a suit by him against his union such as Sheridan has brought. This conclusion is polarized by the generally admirable purpose of the *167Act. The House Report on the then bill states “ * * * it is essential that union practices and procedures be democratic and that they recognize and protect the basic rights of the union members and the employees represented by unions.” H.R. 1959 U.S.Code C & A News § 101. One of those significant basic rights is “ * * * to institute an action in any court * * * irrespective of whether or not the labor organization or its officers are named as defendants or respondents * * Section 101(a) (4). Sheridan’s criminal prosecution of another member of his local comes within the Labor Management Act of 1959. In accordance with the letter and spirit of that statute he should be protected in his individual right as a union member to proceed legally against Burke.
. The local was apparently construing the words “civil courts” in 56A of its constitution and laws as requiring Sheridan to exhaust all the union resources prior to proceeding in the criminal court against Burke. This would be in contravention of Sections 101(a) and 102 of the Act. To discipline Sheridan for bringing bis criminal action first is directly opposed to Sections 609 and 102 of the Act.
. The concurring majority opinion complains that Sheridan waited less than two months after November 9th before starting his civil suit. This is true but it is also true that he had facing him at the time a notice of a local meeting two days away for the purpose of electing a temporary Business Agent, the office which plaintiff insisted belonged to him. See Detroy v. American Guild of Variety Ar*164tists, 286 F.2d 75 (2 Cir. 1961). As the Second Circuit there points out (p. 78), “The statute provides that any member of a labor organization ‘may be required’ to exhaust the internal union remedies, not that he ‘must’ or ‘is required to’ exhaust them. * * * We therefore construe the statute to mean that a member of a labor union who attempts to institute proceedings before a court * * * may be required fty that court * * * to exhaust internal remedies of less than four months’ duration before invoking outside assistance.” (101(a) (4)). In the instant ease, plaintiff took his appeal to the union’s General President, the first level of the union’s appellate procedure. Before the president chose to decide the matter, the local scheduled the new election to fill the vacancy temporarily. Because of this, although four months had not elapsed, plaintiff was forced to file Ms district court suit. The trial judge accepted that action as proper under the circumstances. There were two issues involved in Sheridan’s dismissal: his misconduct in office and his municipal court charges. While a determination of the union’s president might be of assistance to the court on the first question, it would not be helpful on the second which concerned the union’s right under the Act to discipline a member for bringing such an action. Also, the adverse effect upon the plaintiff’s position in the union created by the forthcoming election was an element which had to be considered by the district court. From the evidence given at the time the interlocutory relief was sought, there was a probability that Sheridan would succeed in his suit. It was not until the later trial that for the first time the facts concerning Sheridan’s misconduct in office came to light, and then only in the context of the overall merits of the daim. See Sheridan v. United Brotherhood of Carpenters, etc., 194 F.Supp. 664, 668-669 (D.Del.1961). The district court found “pressing need for the prompt adjudication of his [Sheridan’s] rights” in the circumstances of the dispute as they existed prior to the trial on the merits. Sheridan v. United Brotherhood of Carpenters, etc., 191 F.Supp. 347 at 353 (D.Del.1961). Plainly under all the facts there was no abuse of discretion by the trial judge in his determination that Sheridan was rightfully in court under the 1959 Act. His decision was squarely in accord with the Detroy doctrine which is the sound law on this phase of the appeal.
. Even if Sheridan’s removal had been actuated partly because of his misconduct in office and partly because of his conduct as a member of the union in bringing the municipal court action against a fellow member, the district court would still have jurisdiction. It is merely speculative whether the penalty would have been the same had the municipal court element of the matter not been present. Insofar as that single penalty can be traced to an illegal act on the part of the union under Section 101(a) (4) and 609, the court would have the power to remedy the wrong. Hamilton v. Guinan, supra. See also Salzhandler v. Oaputo, supra.