UNION MEMBERSHIP.

Dominion, Volume 4, Issue 1072, 10 March 1911, Page 3

UNION MEMBERSHIP.

IMPORTANT CASE. THE EFFECTS OF PREFERENCE. A MEMBER'S AEKEAIJS. Kights of mcmborsltii) in an industrial union are involved in the case of James Flowers v. the Wellington Wharf Labourers' Union, which was commenced in the Supreme (Jourt yesterday morniiiK before llr. Justice Cooper. A considerable number of working men were interested listeners to the proceedings. Mr. A. \Y. Blair appeared for tho plaintiff, and Mr. Y. J. O'Bogan for the defendant. Particulars of the Claim. The statement of claim fet out that plaintiff was a wharf labourer, and had worked on the Wellington wharf for many years. There was a preference clause in tho award of the Arbitration Court, its effect being that a wharf labourer could not obtain employment if the various employers of labour on the wharf were notified that any particular person was ineligible by reason of not being a member of the union. On or about May 8, 19C8, plaintiff became and remained a member of the union until April, 1910. He was still a member. In or about April, 1910, the union notified the various employers of labour on the Wellington wharves that plaintiff had ceased to bo a member of the union, and had become ineligible for employment, except in breach of the preference clause of the award. Plaintiff was not notified of this, and did not ascertain it for four weeks. The notice was still subsisting, and plaintiff was consequently unable to gain employment. On July i, 1910, without admitting that he had ceased to be a member of the union, plaintiff made a formal' application to rejoin the union, and sent the proper fees with the application, but the union refused to allow him to rejoin the union, or to withdraw the notice which prevented him from obtaining employment. It became the duty of the union to enter him as a member, and to ivithdraw the notice. The defendant union, according to the statement of claim, unlawfully wrote and published of and concerninij plaintiff on or about April 20, 1910, in letters to shipping companies employing labour on the wharf, certain false and defamatory words to the effect that nlaintiff was ■ ineligible for employment by reason of his not being n member, of the union, wherein- plaintiff has, since that date, bpen nimble to obtain employment. Plaintiff a c ked for the issue of n mandamus conmelling the union to enrol him as a member itn'm pavment of the proper fees, an injunction to restrain the union from representing that plaintiff is not a member of the union, and the sum of ,£175 damages. The Defence. The union in its statement of defence denies that plaintiff has followed . the vocation of a wharf labourer on the Wellington wharves for many years. They also deny tho effect of the preference clause as stated, and state that plaintiff has been employed as a labourer on tho wharves from time to time since April, 1910. The union deny that en or about May 8, 1910, plaintiff became a member. He did so on or about March 2, 190G, and remained a member until April, 1910. Defendant denies that plaintiff is still n member. He ceased to bo such in April, ,1910. Defendant admits sending the notice to certain employers of labour stating that plaintiff had ceased to bo a member of tho union, but did not state that plaintiff had become ineligible ..for,, employment except in,breach of the preference clause, r.or did the union use words to that effect. Defendant denies that plaintiff was not notified of tho commnmcatrcn to employers, and says that • plaintiff was both warned that such, notification would be given immediately, and after if was given "that it had, been'given. The-notice was still ' subsisting;' The union admits that it refused to allow the plaintiff to join the union, and also to withdraw tho notice unless plaftitiff paid certain arrears of subscription which they alleged wore due to the union. Plaintiff, it is set out, agreed to pay 2s. Od. entrance fee and Is. per month, but neglected, omitted, and re-fused to keep on foot the subscriptions, and in April, 1910, his contributions payable amounted to £2 lis. (id;, while he had paid l(is. The union denies that it became its duty to enter him as a member on his applying and paying the dues. It was under no obligation to do so unless and until plaintiff's then legal liability to the union had been discharged. It was not its duty to withdraw the nolice until the arrears had been paid. The notice did not ma'ko plaintiff ineligible for employment except in breach of the award, as. if no unionists were available on the wharves, an employer was not bound to wait before engaging non-unionists. Plaintiff had been employed in these circumstances sinco April. Defendant denies that it unlawfully spoke of or published of or concerning plaintiff certain false' and defamatory words. It had been and was still ready and willing to. allow him to become a member upon payment of 12s. Counsel's Opening. The importance of the car.e was pointed' out by Mr. A. \V. Blair (counsel for the plaintiff), who stated that it involved tho right of a union to take steps to prevent a man obtaining employment if he is in arrears with his payment's to the union. Tho plaintiff's case was that the union had no such right. If it had, it would ha ablo to make an improper use of tho preference clause, which was included in many awards. The effect of the clause was that a non-unionist could not get employment unless there was more than enough work offering for the unionists, and in practice everybody must join tho union if ho expected to get work at all. In traversing the allegations made in the statement of claim, counsel said that, to put it mildly, the union hat! resorted to equivocation in i'lowers's case, and had not treated him as they treated others. They did not give him e. contribution book for receiots of his payments to the union, though" such a book was required by the rules. From May 2 to July 25, Flowers repeatedly pressed the officials to state how much ho owed, but received no statement on the point until July H, after he had reapplied for membership, and sent postal notes for ss. 6d. The reply'was to return tho notes and inform him that he was owing .£1 12s. Od. arrears, and would be served with a summons for the same, after which 1-e might find it difficult to rejoin tho union. The summons was issued, and it contained the first intimation the plaintiff had received of any of the particulars of the account. Plaintiff gave notice of intention to defend the case, but the union did not go on with it. He wrote again to the union in September, forwardicT 10s., which he considered was all he owed, and offering to pay all that the union said he owed. In reply, the union secretary returned tho money, and stated that ho was instructed to return all money sent by plaintiff unless ho sent tho full. amount duo or distinctly stated that the money • was sent on "account. Counsel submitted, that the union was actuated by a most malicious desiro to prevent' Flowers from obtaining employment. In subsequent correspondence between the legal advisers of the parties it was arranged that Flowers should pay arrears and be readmitted without prejudice, but tho union declined to carry out the arrangement, and later increased the claim for arrears to .£1 15s. fid. Flowers had since made .two applications to rejoin the union and had been prevented. William Alfred Kennedy, Wellington manager of the I'nion Steam Ship Company, said he had received a letter from the union, datetl April 20, 1910, stating that plaintiff and other men were no longer members of the union. He sent copies of the list to the labour foremen, with instructions not to etnnlov the men named except as permitted by the award. Plaintiff in the Witness-box. James Flowers, the plaintiff, giving evidence, said he had been working on tho wharf since about 1905. 110 joined Che union some years ago, but lost his book some time afterwards. There was then no preference clause. He applied personally to Mr. M'larcn for another. The latter replied: "Find it. I have none to give." Witness then told M'tarcn-lo strike bite off the roll. He was a member for two or three months. When the award came into force, M'Laren came to the job where witness was working and told the foreman that lie. must not em. j

ploy him because ha was not a ineinl.'oi' of the uu'ou. The foreman said he could not get another man on a Snlurday afternoon, and witness continual working, but he did not yet another job for some ] weeks. Ho then joined the union (May S, 1S08), and paid .'is. lid., being 2s. (id. entrance, tee and a month's subscription. Ho got no receipt. He asked M'Laren for a book ri rules and receipts, but the Jaltor said lio had mine at the lime, and witness must come back in a-couple of days, lie did so, and was again put nil'. Witness paid another ls„ but no receipt was given. One morning lie was gaing to employment when a member of the union asked him if he had a book of receipts ior the money he had paid. He paid "No," and the other replied that lie Jiad belter get one, and that the money was probably put down for arrears. Witness then again applied to M'Laren for a book, nnd was again put oil'. Witness asked for a receii.t, and M'Laren made one out. This was on July 25, 1308, and it acknowledged receipt of 3s. Cd. and Is. "contributions." Witness paid further contributions, and the receipts (produced) did not show what periods were covered by the payments. Ho had also paid shillings several times to M'Laren nnd to Fnrland (wlid succeeded him as secretary) without getting receipts. When he rejoined the union, he was given a copy of the award and a passport button, 'but no copy of tho rules. For some time after that he worked on the wharves without hindrance. He principally followed coalwcrking and sometimes made .£3 ss. a week. Until April or May, 1910, lie did not know that he had been struck off the books. He had been unable to get work on the wharf since that time, as there was never a scarcity of unionists. It was through tho neglect of the secretary in the matter of the book and receipts that he tell into arrcar. He had told the secretary that he would pay no more until the rules were complied with by giving him a book. The secretary had books at the time. Correspondence previously reviewed by counsel, as above, was put in. Cross-examined, witness denied that M'Laren and Smith, in reply to his letters, had repeatedly explained the position in conversation and informed him that if he would call at the office he would get all the information he required. M'Laren did not write him to come to the office and inspect the books nnd end the controversy by paying his dues. Re-examined: They did not tell him verbally how much he owed. "A New Zealand Osborne." Mr. O'ilcgnii said he had been at a loss to discern the rationale of this case, and ho supposed that Flowers wished to attain celebrity as a New Zealand Osborne. His Honour: I assume that he has brought the action in order .to establish what his rights are. Mr. O'Regan: 'Very likely that is so your Honour. I don't question his right t: do so. Counsel went on to say that the evidence for the defence would disclose a complete reply to plaintiff's allegations. All that stood between him and his ambition to work was tho payment of .his arrears, to the union, and apparently tho ease for Hie plaintiff was that he had a right to join the union again without paying those arrears. The deft nee was that it was made clear to Flowers that the money received from him would bo applied to reduction of arrears and that he would not be readmitted until ho had paid the arrears. Mr. M'Larcn'o Evidence. David M'Laren, M.P., general advisory secretary of the union, said he was business secretary in KlOli. Plaintiff joined at that time. Preference was not obtained until the present award came into operation in 1808. Plaintiff, before that time, constantly fell into arrears. Alter pieierence was granted, witness repeatedly advised plaintiff to make himself good on the books. Oman occasion referred to bv plaintiff in his evidence, witness told tho foreman that plaintiff, being in arrears, was not'a member, but could be employed in default of unionist's. When asked by plaintiff for a fresh book, witness lold him to come to the office, make himself good, and get a new book for lid. The button system was discontinued as a failure; the buttons were transferred from hand to hand. A button was never issued to Flowers. Tho books showed that if a button had been issued to plaintiff it would have been numbered 470, and that a button of that number had not been issued. The books (produced) showed that when Flowers resinned paynienls to the union the money was entered as towards arrears, not as entrance fee. It might 1)3 true that in hurried circumstances a receipt was occasionally not given, but the nayments were all entered in the books?, and a receipt could be obtained on • application. Mr. Blair: Is it not your duty to enter the receipt in a book.?—" Yes, if ho produces a book." His Honour remarked that a very important question might arise as to whether a man could join the union by paying : 3s. Cd., and then, while remaining a member, pay no more dues for twelve months, and iein again at tho end of that period as a new member .without paying arrears, and go on repealing the process indefinitely. If that could be done, he thought the law required amending. Mr. M'Laren Cross-examined. Mr. Blair: Did you tell him you would make him pay up for all the time he was off the union?-—"No. I told him to come and square up his account with the union." As far as the union was concerned, you treated him as if he had never been off sinco he joined in 100G?—"No. I treated him as a defaulting member." Did the union ever treat him as a non-unionist?—" Yes; when he was over twelve months in arrcar." , And being a non-unionist, he was incurring no dues?—"l cannot say as to that." Do you suggest you could recover dues from a man for tho time he was not a member of the union?—"l do not know the legal position on that point, but the union would have been satisfied if ho had paid up his twelve months' arrears." Under further cross-examination the witness said that the name in tho book opposito Button No. 33, was that of E. J. Boyd. . Re-examined: The fact that Flowers had been employed on the wharves from time to time since his name was struck off did not'necessarily indicate a breach of the preference clause, neither did it mean that tho union had recognised him as a member. Arrears exceeding 12s. in amount had frequently been paid in other cases. When Flowers paid tho 3s. Gd., he did- not apply iu writing for readmission, hut simply said in an offhand way that he wanted to come in. It was made quite plain to him that the money would be applied to reduction of . the arrears. Other Officials of the Union. Thomas King, treasurer of the union, said that immediately after the award came into force, Flowers tendered 3s. 6d. to him as payment for joining the union, but it was refused, as he was unfinancial. Later he came into the office, threw 3s. 6d. on tho table, and demanded to join, and when the request was declined, ho left the money and went away. Thomas Smith, secretary of tho union for the last two years, and previously assistant secretary, said he did not reply to the first, three or four of plaintiff's letters, because he met plaintiff in the street and asked him to come along to the office and see the books and fix the matter up. The ledger was always open on tho table for inspection, but plaintiff did not come lo see it until after'the commencement of the present proceedings. Tho summons for arrears was issued without legal advice, and the ease was dropped for technical reasons. There were 1540 members of (ho union at (lie time of the last return. Flowers had not been treated exceptionally. Cross-examined: Although they knew that Flowers had plelity of money they preferred not to sue him, as they thought tiie other method would be moro effective. Re-examined: The books showed that Button No. 33, which was intended for E. J. Boyd, was never issued, because Boyd left the wharf. Thomas M'lnlosh, clerk in the Labour Department, called by Mr. Blair, produced official returns of tho membership of the Wharf Labourers' Union. Counsel's Argument. Mr. Blair, in his argument, quoted authorities to show that the plaintiff was entitled to I he issue of a writ of mandamus. He submitted that whether the plaintiff was in arrears or not was immaterial. Mr. O'Eegan, with a view to shortening the argument, said, that if his Honour.!

decided that the union was wrong in refusing the plaintiff admission, the union would al once admit him. His Honour States Questions. His Honour said he did not suppose the union wished lo have a mandamus issued against it. The question appeared to bs twofold: (I) Was plaintiff admitted as a member in May, 19US? If so, then lie remained it (nullified member in April, 1910, assuming that the payments he made in I'JIiO were in respect of the membership which began in May, 1903. (2) If, as a matter of fact, he was not admit led in Jlay, 190S, but was tacitly allowed to work on the wharf on condition that he woukl pay up his arrears, then they came to the much broader and more important iiuc%tion vjicther he had a right to demand admission in .May, 100 S. He would not decide these points without full consideration, but his present view was that the statutory erasure of the plaintiff's name in consequence of disqualification in 1907, coupled with the fact that he was returned as a member in 1909, indicated that ho must have "been admitted to membership in the meantime. " Grave Abuses." In the further course of his argument Mr. Blair said that if the interpretation which the union placed upon the preference clause was the true one. it would lead to abuses just as grave as that, of a man joining the union and paying 3s. Gd. and nothing more until he had fallen info twelve months' arrears, and was struck off. and then joining again. He submitted that it was never the intention of the Arbitration Court to give a union a remedy in regard to debts that was not possessed by ordinary people, and that might result in grave abuses. The union might, for instance, prevent a man getting employment by insisting on payment of a debt which might indeed be due, but. in regard to which any magistrate would refuse an order on the ground that the debtor was not reasonably able to pay it. In regard to damages, counsel submitted that his client was entitled to the money he would have earned on the wharf at .£3 ss. a veek since the time when Ihe union had advised the employers that he was not a member. • His Honour intimated that he would hear Mr. O'Eegan this morning.

The Court adjourned until 10 a.m. today.