Lоcal 10 of the International Ladies’ Garment Workers Union (ILGWU) and the ILGWU itself (both of which are sometimes collectively referred to herein as the “Union”) are joined with Abe Dolgen, former Manager of Local 10, as defendants in two consolidated actions brought in the Southern District of New York by appellees, three members of Local 10, under § 102 of the Labor Management Reporting and Disclosure Act (LMRDA, the Landrum-Griffin Act, or the Act), 29 U.S.C. § 412, seeking nullification of certain union disciplinary proceedings and damages for violations of procedural and substantive rights under § 101 of the Act, 29 U.S.C. § 411, and seeking damages under pendent state tort claims.
The actions arose out of an altercation between appellees and Dolgen on January 29, 1975, in Dolgen’s Local 10 office and a series of ensuing disciplinary proceedings against appellees conducted by Local 10 and the International. Appellees claimed that Local 10 and the ILGWU deprived them of the full and fair hearing required by § 101(a)(5)(C), by (1) remanding the disciplinary charges for retrial before essentially the same tribunal that had previously found them guilty and by (2) denying appellees the right to tape-record the proceedings at their own expense when the union did not provide for a verbatim record.
In a pretrial decision, reported at
We affirm the judgment below insofar as it holds (1) that a union may not under § 101 allow a member of a union tribunal which had convicted • a union member to participate as a member of the tribunal upon a retrial of the same charges and (2) that a union may not prevent an accused from recording disciplinary proceedings when the union itself does not provide a verbatim record. We also affirm the judgment against Dolgen for false arrest and ffialicious prosecution. We reverse the decision that a union may not as a disciplinary sanction suspend a member’s right to attend membership meetings. We set aside the damage awards against Local 10 and Dolgen on the federal claims on the grounds they were predicated in part on an erroneous legal theory and unsupported by sufficient evidence.
Since the tortuous background to this litigation is well described in Judge Motley’s reported opinion,
Rosario and Vega were handcuffed and searched by the arresting officer and taken to the police station in a squad car in the custody of two other police officers who arrived on the scene. At the station the police made one and possibly two calls to Local 10’s office and were told that charges would be pressed. Rosario and Vega were each given an “Appearance Ticket,” an instrument issuable by a police officer in a non-felony case, directing each individual to appear in the local criminal court at a specified time for a specified charge. See N.Y. Crim.Pro.L. § 150.10, et seq. (McKinney). About two weeks later, Rosario and Vega appeared as directed in Criminal Court and, after spending several hours waiting as the case was repeatedly called, were told they could go home since the complainant had not appeared.
On February 10,1975, the very day when Rosario and Vega appeared in court, Dolgen, “acting in his individual capacity, filed intraunion disciplinary charges with Local 10 against them and Cabel, accusing them in multiple counts of interference with union operations and of conduct unbecoming a union member, in violation of the ILGWU’s constitution.
On February 25, 1975, appellees were tried before the Executive Board of Local 10 sitting as a grievance committee, found guilty and sentenced to a one-year suspension of their right to participate in union membership meetings. They appealed this conviction to the Appeal Committee of the General Executive Board (GEB) of the ILG-WU, claiming that Dolgen and some of his witnesses had participated in the deliberations of the trial body. The Appeal Committee, while declaring that this claim had not been established, nevertheless vacated the conviction to avoid any appearance of impropriety. Dolgen then promptly preferred identical new charges against appellees, which were heard on May 21, 1975 by the Local 10 Executive Board, several members of which had been on the Bоard when it heard the same charges in February. Again the Committee unanimously found appellees guilty as charged.
Appellees again appealed to the GEB’s Appeal Committee, claiming that the tribunal was biased and that Dolgen had “maliciously” dominated the proceedings. They also protested the ruling of the trial body prohibiting them from tape-recording the proceedings and from examining the official minutes of the trial.
At this juncture, appellees in September, 1975, filed suit in the federal court against appellants under LMRDA and state tort law. Shortly thereafter the GEB, su a sponte, reviewed the decision of the Appeal Committee and directed the Trial Committee to conduct a new trial under certain specified conditions, principally that the tribunal consist of rank-and-file union members having no previous involvement with the case and that the Committee designatе a secretary to take minutes, which would be available to all parties.
On December 18, 1975, the scheduled trial date, appellees, whose request for transcripts of the two previous trials for preparation purposes had been denied by the Trial Committee, appeared with their tape recorders in hand. The hearing was adjourned to January 8, 1976, when an impasse developed over use of the tape recorder. Appellees and their lay counsel returned on the new trial date, still insisting upon their right to use the tape recorder. The Trial Committee thereupon retired to an adjoining room and tried appellees in absentia.
At this point, July, 1976, appellees filed their second federal action with a complaint that in essence incorporated allegations concerning the third union trial into the federal claims asserted in the first action. In August 1976 Judge Motley granted appellees a preliminary injunction barring Local 10 from carrying out the punishment imposed by the third Trial Committee. Appellants took an appeal to this Court, which on November 9,1976, affirmed from the bench the issuance of the injunction.
Following the issuance of the injunction, the battle returned to the union halls, where on December 14, 1976, the Executive Committee of the GEB, acting sua sponte in response to the federal court rulings, ordered that “the appeal from [the] charges [filed by Dolgen] shall be heard and deter
Appellees responded to the Executive Committee’s decision with a letter to the Committee denouncing the “de novo hearing” as a form of harassment contrived to retaliate against them for pursuing their rights in federal court. Having, in their opinion, exhausted their intraunion appellate remedies, appellees announced in their letter that they would not attend the hearing. The Special Appeal Committee replied with a reminder of the time and place of the “hearing de novo on [the] appeal” and with a reference to Art. 22, § 4 of the ILGWU constitution, quoted in the letter, captioned “Failure to appear at trial,” which provides that if an accused fails to appear for trial without good excuse, the trial body may proceed as if he were present.
No further communications occurred until the Special Appeal Committee on April 11,1977, sent appellees a copy of the stenographic transcript of a hearing that had been held by it as announced on March 23, 1977, and a copy of the Statement and Decision of thе Committee, which found appellees guilty of the common charges of misconduct and adopted the sanction imposed by the Third Trial Committee.
In May, 1977, appellees moved in the district court for an order holding the ILGWU in contempt of the September 20, 1976, injunction barring execution of the disciplinary sanction. This motion was denied by Judge Motley. Appellees then pursued their ultimate intraunion appellate remedy, filing an appeal to the Convention. Appellees asserted in the alternative that the ruling of the Special Appeal Committee, if an appeal, did not cure the defects in the trial procedure and, if a trial, was ultra vires. Appellees did not attend the hearing before the Appeal Committee of the Convention, despite concededly adequate notice. The Committee recommended affirmance of the conviction, and the Convention unanimously ratified this recommendation.
On November 14, 1977, Judge Motley filed her decision granting summary judgment awarding permanent injunctive relief against Local 10 and the ILGWU on the ground that they had violated appellees’ rights by barring them from attending Union meetings, by denying them a full and fair hearing at the first two Union trials, by refusing to permit them to record the proceedings, and by permitting retrial of the same charges against them before the same tribunal. Judge Motley also dismissed the claims of § 101 violations against Dolgen on the ground that he had acted in a private, not in an official, capacity, and denied Local 10’s motion to dismiss appellees’ claims that
DISCUSSION
I. FEDERAL LAW CLAIMS
(a) Whether a Union May Suspend a Member’s Right to Attend Meetings
We turn first to the question of whether the district court erred in holding that a union may not punish a member by suspending his right to attend membership meetings. The district court reasoned that such a “partial” suspension is not a form of discipline implicitly sanctioned by § 101(a)(5) of the LMRDA, since appellees remained union “members” as defined in § 3(o) of the Aсt, 29 U.S.C. § 402(o), and were therefore entitled to the equal rights guaranteed to “members” by § 101(a)(1), including the right “to attend membership meetings, and to participate in the deliberations and voting upon the business of such meetings.” In support of this literalistic interpretation of the statutory language the court suggested that the seemingly mild sanction of barring a member from attending meetings might be abused by union officials eager to silence dissidents without provoking mistrust of other union members or of a federal court, which might occur if more dramatic sanctions such as expulsion or suspension of membership status were employed.
We are unaware of any cases clearly addressing the issue. Stachan v. Weber,
We are persuaded that a union has the power under the LMRDA to discipline a member by suspending his right to attend membership meetings provided, of course, that he has been properly found after a full and fair hearing to have violated a legitimate union rule. Subsection (a)(5) does not restrict the form of discipline a union may impose; it guards against abusive and unjust exercise of union authority by prohibiting a union from disciplining a member without first affording him certain procedural safeguards against unwarranted or inaccurate adjudication. See NLRB v. Allis-Chalmers Mfg. Co.,
Nor does subsection 101(a)(1) of the LMRDA, the “equal rights” provision of that Act, support appellees’ contention that a union member is absolutely entitled to exercise rights of membership, unrestricted by reasonable forms of discipline, since it expressly provides that the right to attend and participate in membership meetings is “subject to reasonable rules and regulаtions in [the union’s] constitution and bylaws.” Although this qualifying clause does not expressly address disciplinary sanctions and its primary purpose is to allow a union to adopt reasonable, uniform rules governing such matters as the exercise of the union franchise and parliamentary procedure, see H.Rep. 741, 86th Cong., 1st Sess. 29 (1959), reprinted in 1959 U.S.Code Cong. & Admin. News, pp. 2424, 2452, it does demonstrate that union membership does not confer an unqualified right to exercise rights of membership.
Nothing in the LMRDA, therefore, precludes a union from removing a disruptive member from a meeting without first expelling him from membership or suspending his membership. Extending this result to allow a union to deny a member admission to meetings for a reasonable period as punishment for a prior violation of a reasonable rule or regulation aimed at preventing disruption of union business is compatible with both the language and intent of the statute. In neither event is the union acting in some arbitrary fashion to suppress dissent or to sacrifice democracy in the interest of efficiency. Moreover, common sense dictates that a union should have the option of imposing a sanction less drastic than complete suspension when a member disrupts the conduct of union meetings or business. In enacting Title I of the LMRDA, Congress aimed to curb the autocratic rule of some union leaders by assuring union members of equal rights to participate in union affairs and the rights to speech and assembly and by preventing supprеssion of these rights through abuse of the union's disciplinary powers. Congress did not, however, desire to outlaw union discipline, Morrissey, supra,
Viewing the statute in light of this purpose, any reasonable disciplinary sanction imposed in conformity with § 101(a)(5) is consistent with § 101(a)(1). The suspension of a union member’s right to attend meetings cannot imperil union democracy or oppress the union member when the union would be entitled to suspend the member from membership altogether, as appellees concede would be the case here if they had been properly convicted of the charged offense.
The sinister theory that if union officials could resort to a narrowly-tailored discipline they would be more apt to use disciplinary machinery to suppress dissent than they would if they had to rely on the more drastic remedies of expulsion or total suspension is unpersuasive. A union member who believes he has been wrongfully disciplined may challenge the union’s action under § 102 of the Act regardless of the severity of the sanction. No support is offered for the argument that partial suspension would arouse less suspicion on the part of members or of a reviewing court than would total suspension or expulsion. It may bé that a literal reading of § 101 lends some support to the result reached by the district court. However, since “[t]he Bill of Rights that appears аs Title I of the Act was hastily drafted and included without much debate,” Navarro v. Gannon,
(b) The Right of an Accused Union Member to Record Union Disciplinary Proceedings Against Him
We next turn to the question of whether a defendant in a union disciplinary proceeding has a right to record the proceeding at his own expense, electronically or steno-graphically, when the union does not do so. It is not disputed that at the first three union trials appellees were forbidden to use the tape recorder they had brought with them. Nor does the ILGWU suggest that appellees would have been allowed to have a stenographic record made had they retained a stenographer or court reporter. Throughout the proceedings the trial officials adamantly opposed appellees’ desire to have a verbatim record maintained, arguing that an ILGWU constitutional provision requiring a trial committee to appoint a secretary to take notes of disciplinary proceedings proscribed any record other than the secretary’s hand-taken notes. Judge Motley’s holding to the contrary is supported by decisions of two other district courts which have considered the question, Pawlak v. Greenawalt,
Appellees argue that requiring a union to permit a member to record the disciplinary proceeding is inconsistent with the general legislative policy of limited judicial intervention in union self-government, see Newman v. Local 1101, CWA,
The question of allowing a union member to tape-record his disciplinary proceeding, like the question of the composition of the trial body, does not raise merely a technical point of procedure, which is certainly within the union’s discretion, or require us to review the sufficiency of the evidence or to interpret the union’s constitution or by-laws. Compare Internat. Bro. of Boilermakers v. Hardeman,
Nor would our ruling on the question of tape-recording be inconsistent with Congress’ rejection of a proposal that would have required unions to transcribe disciplinary proceedings. Early versions in the House and Senate of the union members’ bill of rights contained a provision requiring that a verbatim record be made of the disciplinary proceeding. See H.R. 4473, § 101(a)(7)(xi), 86th Cong., 1st Sess. (1959), reprinted in I Legislative History, supra, at 179; S. 1137, § 101(7)(E), 86th Cong., 1st Sess. (1959), reprinted in id. at 270.
Appellees’ argument that permitting a union member to tape-record disciplinary proceedings against him would impose excessive financial burdens on unions is hardly persuasive, since it is the union member, not the union, who would assume the obligation of making the recording. Nor is there any force to the contention that the union would be required to make its own recording in order to protect against falsification of tapes by the accused. In most run-of-the-mill cases — those not involving disputes over union management — it is logical and likely that the member would accept the union’s record, absent proof of a motive to falsify. In other cases there would be no factual dispute, in which event the union would have no occasion to worry about falsification of the record even if the accused were allowed to record the proceedings. See Pawlak, supra,
The notion that union members would possess the expertise or equipment needed to distort or falsify tapes, much less to prevent ready detection of such conduct, appears rather far-fetched. Where tapes are unreliable, either because of the possi
Nor is there any merit in the Union’s argument that taping of disciplinary proceedings by the accused would defeat Congress’ desire to keep suсh proceedings informal. The operation of a tape-recorder is no more intrusive than the ILGWU’s practice of requiring the Secretary of the Trial Committee
The suggestion that the tape-recording would impair union disciplinary proceedings borders on the frivolous. It is not uncommon today to tape-record proceedings of many different types (including all arguments of this court) without any intrusion or fanfare. The Union’s contention that members would be reluctant to testify if the proceedings were tape-recorded not only implies that the witnesses would be reluctant to tell the truth but sheds doubt on the Union’s own hearings. It also igñores the established practice of recording (either by stenotype or tape) testimony given in most judicial proceedings.
Appellants’ further argument— that disciplinary proceedings should be treated like collective bargaining sessions or grievance meetings, which are usually not recorded — overlooks the significant difference in the nature of the two types of proceedings. Because negotiation of contract terms and grievances requires each party to compromise some or all of its interests in order to achieve a settlement best for the group as a whole, negotiators' realize that the bargaining process could easily be stymied if each of the multiple, heterogeneous constituencies they represent are apprised of the details of the process. Experience teaches that labor contracts, like international treaties, cannot be openly arrived at. See St. Louis Typographical Union No. 8, ITU, 149 N.L.R.B. No. 71 at 750, 754 (1964) (Fanning and Brown, concurring). Union disciplinary proceedings, in contrast, are comparable in several important respects to a criminal trial, where credibility is crucial and secrecy is utterly foreign to our concepts of fairness. As in criminal trials, witnesses in union disciplinary proceedings are more likely to testify truthfully and union boards more likely to conduct themselves properly if they know that an accurate record of their testimony can be scrutinized by others than if the sole record consists of sketchy nоtes made by a union official sympathetic to the union .management. For all of these reasons we conclude that a union should allow an accused to record a disciplinary proceeding against him when the union does not.
(c) Retrial of a Union Member on the Same Charges Before the Same Union Tribunal
We turn next to appellants’ challenge to Judge Motley’s ruling that a union cannot consistently with the full and fair hearing requirement of § 101(a)(5) try a union member before a panel which includes one or more individuals who have previously heard
It cannot be denied that in a literal sense the members of the second tribunal, having found the accused guilty of the identical charges, have “prejudged” his guilt. However, appellants point out that a per se rule precluding such a retrial by the same body would impose on union disciplinary tribunals a higher standard of due process than courts have imposed upon themselves or upon administrative agencies, to which cases are sometimes remanded for new fact-finding by the same decision-maker after initial findings have been set aside. This argument disregards the fact that criminal charges, which are analogous to union disciplinary charges, are not upon remand tried to the same jury. It also fails to take into account the markedly different safeguards inherent in judicial and administrative adjudication, on the one hand, as distinguished from intrauniоn adjudication, on the other — a distinction we recognized in Salzhandler v. Caputo,
The most compelling distinction, however, is that the judicial and administrative processes insist with much greater rigor than does intraunion disciplinary process upon the detachment of the adjudicators from the prosecutors. When union officials or members sympathetic to their continued tenure and interest in maintaining the status quo sit in judgment upon charges arising out of internal political differences, brought by a fellow official against a member who is critical of their policies, the atmosphere is hardly conducive to impartial resolution of the issues. See Salzhandler, supra,
The decisions in Falcone v. Dantinne,
Appellants’ reliance on Tincher is farfetched. There the court invalidated a union disciplinary proceeding on the ground that the tribunal had considered a report which it had prepared after convicting the accused at a prior trial, the result of which had been set aside because the accused had received inadequate notice of the charges against him. In a footnote the court mentioned that because the trial body had considered evidence and its conclusion from the first trial, the result of the second trial must be set aside even if it were “assum[ed] arguendo that it was not improper for the same trial committee to hear [the second trial],” citing footnote 8 in Falcone, which had suggested that upon retrial it would be improper for any members of the prior trial body or even for union officers present at the earlier trial to serve on the newly constituted trial body,
(d) The Adequacy of the Fourth Disciplinary Proceeding
Appellants contend that, even assuming appellees’ rights to a full and fair hearing were for the foregoing reasons denied at the first three disciplinary proceedings, the deficiencies were cured by the “de novo appeal” held on March 23, 1977. This contention was rejected by Judge Motley, who reasoned that appellees were entitled to rely on her previously issued injunction barring Local 10 and the ILGWU from giving any force or effect to the January, 1976, decision of the Local 10 Trial Committee as' barring the conduct of further intraunion review or reconsideration of the Trial Committee’s decision. Although Judge Motley declined to hold the ILGWU in contempt of her injunction for holding the hearing before the Special Appeal Committee, she found that the Union had inadequately disclosed its intention to hold a new trial, so that appellees were entitled to ignore the summons.
Appellees had ample notice that the proceeding to be conducted by the Special Appeal Committee of the ILGWU’s GEB would be a new trial and not merely a review of the results of the previous trial. The decision of the GEB directing that the proceeding take place, which was distributed to appellees well in advance of the hearing date, stipulated that the Committee would conduct a hearing “de novo,” with the parties entitled to be present and represented by counsel, to present documentary and testimonial evidence, to cross-examine witnesses and make opening and closing statements. Although GEB referred to the Board’s action as one in connection with appellees’ “appeal” and described the proceeding as “the hearing de novo on appeal” the substance of the message was clear: appellees were being offered a trial with all of the due process rights previously denied. If there was any doubt about the nature of the new proceeding, appellees had ample opportunity to clarify the matter. Instead they chose to boycott the proceeding. While their doubts about the Union’s sincerity may be understandable, their failure to respond, either by accepting the offer or by asking the court’s assistance to insure that a genuine full and fair trial ab initio would be held, is not.
Despite appellees’ suspicions, there is no evidence that the Board’s purpose was other than to comply with the district court’s injunction. Nevertheless, although the fourth disciplinary hearing must be viewed
(e) Damages
(1) Local 10 and ILGWU
A union member who has been disciplined in violatiоn of § 101 may recover damages for stigmatization, loss of earnings or similar harm caused by the wrongful conviction, see, e. g., Bradford v. Textile Workers, Local 1093,
In the present case the jury awarded damages against Local 10 for mental distress attributable (without differentiation) to imposition of a sanction erroneously found by the district court to have been unlawful (suspension from attendance at union meetings) and to retrials before the same union tribunal.
The district court’s determination that attorney’s fees may be awarded against Local 10 in favor of appellees’ counsel stands on a different footing. Such an award is within the court’s traditional equity power where the plaintiff confers a substantial benefit on the union’s general membership, since “by vindicating his own
In the present case, whether or not appellees’ suit served as an antidote to autocracy, it did confer a benefit upon the general membership by insuring that other Union members charged with violations of the Union’s rules would be accorded the procedural rights upheld by us. Such an enhancement of the integrity of the process of “law enforcement” increases the respect for that process and thereby fortifies the commitment to the rule of law, which is of capital importance in a responsible, democratic institution. We therefore hold that a plaintiff who vindicates procedural rights under § 101 may, in the discretion of the court, be entitled to recover attorney’s fees and that the discretion was not abused in this case. See Stein v. Mutuel Clerks’ Guild of Massachusetts, Inc.,
(2) Dolgen
The jury’s assessment of damages against Dolgen for wrongful discipline and denial of a full and fair hearing to appellees in violation of § 101 is contested on several grounds, including Dolgen’s claims (1) that he was exempt from liability because, as manager of Local 10, he could not have played any official role in the disciplinary proceedings, (2) that the evidence of his domination of the proceedings was insufficient, and (3) that the verdict against him was inconsistent with the jury’s finding that Local 10 did not рrosecute appellees for an improper purpose. Although we conclude that the judgment against Dolgen for violation of § 101 must be reversed for other reasons, we find no merit in any of these grounds asserted by Dolgen.
As we pointed out in Morrissey v. National Maritime Union,
Although Dolgen is not immune from liability, we nevertheless reverse the judgment against him based on violation of appellees’ § 101 rights because no evidence wаs submitted indicating injury attributed to Dolgen’s alleged domination of the first two trials or to the imposition of a sanction allegedly at his behest. The evidence concerning damages on the federal claims consisted only of an undifferentiated reference to the entire course of the Union trials and appeals and to the hostility of all the Union officials involved in them. It therefore becomes unnecessary to resolve the possible inconsistency between the jury’s verdict in favor of Local 10 on appellees’ claim of retaliation and its award of damages on their claim against Dolgen.
II. STATE LAW CLAIMS AGAINST DOLGEN
We turn next to Dolgen’s challenge to the judgments in favor of Rosario and Vega on their state law claims against him of false arrest and malicious prosecution. Dolgen argues that the trial court lacked jurisdiction over these claims, that the claims were substantively invalid, and that there was insufficient evidence to sustain the damage awards. We disagree.
The test for determining whether a court having jurisdiction over a federal claim may properly assume jurisdiction over a pendent state claim is whether the claims derive from a common nucleus of operative fact. United Mine Workers v. Gibbs,
Although the joinder of the claims precluded Dolgen from impleading the City of New York as a defendant, there is no showing of a significant likelihood that he could have successfully transferred liability to it. For the same reason we uphold the district court’s refusal to permit Dolgen to state a cross-claim against the City pursuant to F.R.Civ.P. 13(g) after appellees proposed to drop their direct claim against it, regardless of whether an independent basis existed for federal jurisdiction over it, see Paris v. St. Johnsbury Trucking Co.,
Turning tо the merits, Dolgen contends that the false arrest claim against him should have been dismissed as a matter of law for the reason that the police had probable cause to believe Rosario and Vega were committing in their presence criminal trespass in the third degree,
The defendant in an action for false arrest has the burden of proving legal justification as an affirmative defense. Broughton, supra,
For the same reasons we reject Dolgen’s contention that appellees cоnsented to arrest and that the trial judge erroneously instructed the jury to the contrary. “Consent” to a confinement means not mere acquiescence but a voluntary assent, as, for example, occurs when an individual is threatened with arrest and volunteers to accompany the police to the station in order to straighten matters out. See, e. g., Foulke v. N. Y. Consolidated Ry. Co.,
For criminal procedural law purposes the issuance of an Appearance Ticket does not strictly speaking commence a criminal action as that phrase is defined by § 100.05 of the Criminal Procedure Law, which states that “[a] criminal action is commenced by the filing of an accusatory instrument with a criminal court.” An “accusatory instrument” is an information or a misdemeanor or felony complaint. Id. An Appearance Ticket does not “constitute an accusatory instrument for purposes of trial or plea.” People v. Jarmain,
The definition of the commencement of a proceeding for purposes of the law of criminal procedure, however, does not necessarily coincide with the counterpart definition for purposes of the law of torts. Weg v. Lippman,
Prior to the advent in 1971 of the Appearance Ticket in non-traffic cases,
A summons, of course, may be issued only upon the filing of an accusation. But aside from this — the difference between a summons and an Appearance Ticket is that the former is issued by the court and the latter by the police. Either may be issued upon an accusation sufficient on its face, without further inquiry by the issuing officer. See N.Y.Crim.Pro.L. §§ 120.20, 130.30, 150.20(2). As the statutory provision governing issuance of an Appearance Ticket following a warrantless arrest indicates, the Ticket is intended to enable the police and the accused to avoid the inconvenience of going before a magistrate upon a formal accusatory.instrument. Id. § 150.-20(2). Like a summons, however, an Appearance Ticket is obligatory. Failure to appear as directed is a crime. N.Y.Penal L. § 215.58. In fact, the court in Farkas v. New York,
The Appearance Ticket may have an impact on the accused just as severe as that of a summons. When either instrument is issued the accused bears the inconvenience and expense of appearing in court and, perhaps more important, is subject to the anxiety induced by a pending criminal charge. Moreover, if others learn that charges have been lodged against the accused, his character is no less traduced because the accusation is contained in an Appearance Ticket rather than in a summons.
For the foregoing reasons we believe that if a New York court faced the question before us it would rule that the issuance of an Appearance Ticket commences a prosecution for purposes of determining whether an action for malicious prosecution lies.
Dolgen argues that the judgments on the tort claims should be set aside because the trial court erroneously admitted into evidence under Fed.R.Evid. 803(6) a complaint report made out at the police station after appellees’ arrest. Dolgen contends that this report did not qualify for admission under the business report exception to the hearsay rule because it lacked indicia of reliability, and that he was prejudiced by its admission because it suggested that Dolgen had told the police that appellees had entered his office without рermission and that he intended to press charges.
According to Police Officer Acha, who was responsible for preparation of the report and signed it, a complaint report is filled out in the ordinary course of business whenever an arrest is made upon a citizen’s complaint. The report is a one-page form requesting information regarding the names and addresses of the arrestees and of the complainant and a brief description of the incident resulting in the arrest. The form also contains a box to be checked if the complainant expresses an intent to prosecute.
The report prepared for appellees’ arrest indicated that the complainant, Dolgen, intended to prosecute and stated:
At above T/P/O [time and place of occurrence] [appellees] did enter office local 10 ILGW for a job at which time they were turned away. They created a scene and became very abusive. They then stormed into manager’s office without permission or authority and refused to leave, and caused crowd to gather.
Officer Acha testified that since the report did not indicate that she witnessed the arrest, the information must have come from Dolgen. Acha acknowledged that the entries were not actually made by her but testified that she reviewed the entries before signing the report and would not have signed it unless she thought it was accurate. The entries were probably made by another
Dolgen argues that the statements are hearsay, inadmissible under Rule 803(6) absent testimony by the preparer of the report that Dolgen made the statements attributed to him.
Thus there was proof entitling the jury to infer by a fair preponderance that Dolgen had maliciously used false information to cause the arrest and prosecution of Rosario and Vega, permitting an award to them of both general damages to compensate for injury to their reputation, mental anguish and emotional suffering, Broughton, supra,
CONCLUSION
The order and judgment of the district court setting aside the Union’s discipline of appellees is affirmed to the extent that it prohibits the Union from (1) remanding disciplinary charges against a union member for retrial before essentially the same tribunal that has previously found them guilty or (2) denying an accused union member the right to record union disciplinary proceedings against him at his own expense where the Union does not provide a verbatim record of the proceedings. The judgment is reversed to the extent that it prohibits the Union from imposing the disciplinary sanction, after a full and fair hearing, of suspension of the accused member’s right to attend union meetings for a specified period of time.
The judgment of the district court is further reversed to the extent that it awards damages to appellees against Local 10 and Dolgen for violation of appellees’ procedural and substantive rights under § 101 of the LMRDA. The provision to the effect that appellees’ counsel may be awarded a reasonable attorney’s fee for vindication of their rights under the LMRDA is affirmed.
The judgments in favor of appellees Rosario and Vega awarding compensatory and punitive damages against Abe Dolgen for false arrest and malicious prosecution are affirmed.
Notes
. For purposes of this appeal we treat the two complaints as one.
. In a separate decision, also issued today, we address the question of whether a union member has a right to tape-record his disciplinary proceeding when the union does provide for a verbatim transcription. Feltington v. Moving Picture Machine Operators Union Local 306, post.
. Prior to trial appellees voluntarily discontinued their claims against the City of New York, whereupon these claims were dismissed. At the same time Judge Motley, asserting disсretion to decline to exercise jurisdiction over pendent claims, dismissed without prejudice Dolgen’s cross-claims against the City seeking contribution toward the false arrest claim.
. Judge Motley dismissed the LMRDA claims against Dolgen, insofar as they sought relief for acts he unofficially committed, on the ground that that Act provides relief only against persons acting in an official capacity. See
. The jury awarded damages as follows:
Against Dolgen:
Compensatory Punitive
False Arrest:
Rosario $1,000 $2,500
Vega 1,000 2.500
Malicious Prosecution:
Rosario 2,500 0
Vega 1,500 0
Wrongful Discipline (LMRDA'claim):
Rosario 500 2.500
Vega 500 2.500
Cabel 500 2.500
Against Local 10:
Wrongful Discipline (LMRDA claim):
1,000 Rosario 10,000
Vega 1,000 10,000
Cable 1,000 10,000
Judge Motley ruled that appellees were entitled to recover from Local 10 attorney’s fees in an amount that remains to be determined, attributable to prosecution of their claims for declaratory judgment on the § 101 claims.
. Dolgen retired from his position with Local 10 on July 1, 1976, having served as Manager for eight years and in various capacities for a total of 37 years.
. Evidently Cabel was never arrested.
. The charges and the relevant constitutional provisions are set out at
. At both of the first two trials one of appellees brought a tape recorder, which he was told he could not use. However, Rosario covertly recorded the trial proceedings with another machine. Appellees contend that their surreptitious recording of the first trial reveals that the official minutes, read to them at the appeal, were inaccurate in significant respects. The minutes of the first trial were taken by Nat Klein, Secretary of Local 10’s Executive Board; those of the second trial were taken by another member of the Board.
. Under the ILGWU constitution, the trial minutes are not shown to either the charging party or the defendant but are forwarded to the Appeal Committee if an appeal is taken and are read to the defendant at the appeal hearing, at which time he can point out alleged errors in the minutes.
Appellees did not appear at the appeal hearing following the second trial, but rested on written submissions. The Appeal Committee sustained the prohibition against use of a tape recorder on the ground that under the Union’s constitution the minutes as prepared by the trial or appeal body represent the one and only official record of a disciplinary proceeding. The Committee took note of the susceptibility of tape recordings to falsification. See
. Under art. 23, § 5 of the ILGWU constitution, the only appeal of right from a decision of the Appeal Committee is to the next triennial or special convention of the ILGWU, which for appellees meant waiting until May, 1977. However, the GEB may on its own motion review a decision of the Appeal Committee, and the GEB’s decision is appealable to the convention.
. The parties dispute whether appellees were locked out of the room in which the Trial Committee conducted the hearing or whether they were free to enter sans the tape recorder.
. This decision was distributed to appellees with a cover letter stating that the decision was “in connеction with the appeal” taken by appellees.
. The Special Appeal Committee did not consider the count preferred against Cabel alone, which had been dismissed by the third Trial Committee.
. Under the partial suspension imposed in this case appellees continued to enjoy all the economic benefits of union membership (as well as the obligation to pay dues), such as participation in the union’s health and pension plans. In addition, appellees retained the right to vote in union elections, to nominate candidates and to run for office, although these rights perhaps had little practical value to one barred from attending membership meetings.
. In Pawlak the court found that the union’s refusal to allow the accused to tape-record the proceedings was not a ground for setting aside the results of the disciplinary trial since there were no disputed issues of fact, the only issue being whether the union could punish a member for the conduct that had admittedly occurred.
. The Senate bill provided that no member could be disciplined unless “afforded final review on a written transcript of the hearing, by an impartial person or persons. . . . ” The House bill simply provided that a verbatim record of the proceeding should be made.
. Senator Kuchel’s explanation for amending the provision dealing with disciplinary proceedings is, in full:
“We believe, Mr. President, that language is clear and explicit, and provides the usual reasonable constitutional basis upon which charges might be brought. We believe further that the language in subdivision (6) of the amendment of the able Senator from Arkansas, upon which we voted the other night, did raise some rather vexing questions. For example, the McClellan amendment provided in part that there should be a final review on a written transcript of a hearing, by an impartial person or persons (i) agreed to by such organization and the accused, or (ii) designated by an independent arbitration or mediation association or board.
“We believe that is cumbersome and unnecessary language. Since we have provided not merely for a criminal penalty but, in addition, for a civil right on the part of the aggrieved member to go to court, we believe that the U.S. district court will be able to determine whether the rights of the union member have been protected and whether he has had constitutionally reasonable notice and a reasonable hearing, and whether the matter has been reasonably disposed of.”
H.R. 4473 was never considered on the floor of the House. The provision on disciplinary proceedings found in subsequent bills introduced in the House was either identical or substantially similar to the Kuchel amendment.
. The comments, cited by appellants, of members of Congress criticizing the McClellan proposal address themselves to the intrusive review of disciplinary findings by a neutral arbiter rather than to the alleged burden of making a transcript.
. At the first trial minutes were taken by Nat Klein, Secretary of Local 10’s Executive Board. At the two subsequent trials notes were taken by someone apparently designated ad hoc to serve as secretary for the Trial Committee.
. We, of course, do not suggest that union members are immune from intraunion prosecution for disrupting union meetings or trespassing at union offices, even though they may be immune from internal prosecution for defaming a union official. See Salzhandler, supra. We cite Salzhandler for its recognition of inadequacies of most intraunion disciplinary procedures in dealing with politically charged accusations.
. Judge Motley ruled prior to trial that appellees could not recover damages resulting from the wrongful denial of the right to record the proceedings because there was no precedent giving Local 10 fair notice of this right.
The special interrogatory posed to the jury on the claim for damages against Local 10 for the LMRDA violations was phrased as follows: “If you answered Yes to Question 5, finding Local 10 liable to the plaintiffs because of the violations of federal law which the court found had occurred in connection with the second trial and because of the illegal suspension from attending union meetings, what amount do you award plaintiffs for the harm they suffered against Local 10?” The jury here was not asked whether appellees were injured by the conviction and exclusion from membership meetings, and the jury explicitly found that Loсal 10 did not prosecute appellees for purposes of retaliation.
. In Robins and Sands, the court assessed compensatory damages only against the union. See
. Although Dolgen’s claim against the City was, and technically remained a cross-claim, once appellees’ claim against the City was dropped, the trial court’s discretion to dismiss Dolgen’s claim should be measured under Rule 14 since the effect of retaining the claim, like the effect of a true third-party claim, would have been to maintain the.presence of a party" who otherwise would not participate in the action.
. "A person is guilty of criminal trespass in the third degree when he knowingly enters or remains unlawfully in a building or upon real property which is fenced or otherwise enclosed in a manner designed to exclude intruders.” N.Y.Penal L. § 140.10 (McKinney). Third degree criminal trespass is a class B misdemean- or, punishable by imprisonment for a period not to exceed three months, or a fine in an amount not exceeding $500, or both. Id. §§ 70.15(2), 80.05(2).
. Appellees were also charged with disorderly conduct, in violation of Penal L. § 240.20, and harassment, in violation of Penal L. § 250.20. These offenses are classified in New York law as “violations.”
. Act of May 20, 1970, 1970 N.Y.Laws 3117.
. Acha testified that the report’s description of the incident resulting in the arrest may not be a verbatim record of the complainant’s account, but that the description would include all significant details mentioned by the complainant. Although Acha did testify in this case, she had no present recollection of the preparation of the report.