#### AMERICAN FEDERATION OF SMELTER WORKERS, etc., v. KYRK.

No. 32861.

Nov. 10, 1947.

Rehearing Denied Dec. 2, 1947.

*187 P. 2d 239.*

C. W. Schwoerke and K. J. Schwoerke, , both of Oklahoma City, Tressa Burger, of Blackwell, and Joseph Pad-way and Robt. A. Wilson, both of Washington, D. C., for plaintiff in error.

Raymond A. Trapp, of Blackwell,' for defendant in error.

WELCH, J.

In this action Edward A. Kyrk sued American Federation of Smelter Workers, Federal Labor Union No. 21538, for damages alleging defendant had wrongfully caused plaintiff to be discharged from his employment. From a judgment in favor of plaintiff, defendant appeals.

Plaintiff’s petition and testimony details a history of dispute between plaintiff and defendant as to his membership status beginning shortly after the defendant Union was organized in March, 1938. However, in opening statement and after close of plaintiff’s evidence, counsel for plaintiff announced that plaintiff’s membership in defendant Union had been established and that plaintiff was proceeding on the theory that he is a member and had joined the Union and had been a member since March, 1938. The court instructed the jury that they were to consider plaintiff as a member of the defendant Union.

As a basis for recovery herein plaintiff claimed that the defendant Union, without notice to him and therefore contrary to the laws of the Union, imposed a fine of $10 against him and secured his discharge from employment because of his refusal to pay said illegal fine. Upon the issues formed by defendant’s general denial of plaintiff’s claims, the cause was submitted to the jury.

There is some evidence from which it might be inferred that plaintiff was informed that a fine had been improperly imposed on him, but this information was erroneous if he was so informed. Plaintiff testified that- an agent of the defendant Union called on him in June, 1939, and told him that unless he paid his dues of $5 and a fine of $10, which had been placed on delinquent members, the Union would have him fired from his job. There is no-evidence that any further effort was made to collect any such fine. Although plaintiff was thereafter discharged from work, no reasonable inference may be drawn that he was discharged for failure to pay a fine in the face of undisputed evidence to the contrary.

The record discloses that the defendant local Union was organized in March,. 1938. In June, 1939, a written contract was entered into by the company and defendant Union, wherein the company recognized the defendant as the exclusive representative of all of its employees with certain exceptions not here material. Article VIII of the contract provides in part:

> “All employees who are members of the Union . . . shall be required to pay *465their dues and assessments as required by the laws of the local Union.”

The laws of the defendant Union in part provide:

> “Section 4. The initiation fee shall be not less than $2.00 which shall accompany the application for membership.

> “Section 5. The dues of this Union shall not be less than $1.00 per month, 5 cents of which shall be laid aside as a special fund to be used in cases of strike or lockout.

> “Section 6. Any member who shall fail to pay the dues and assessments required by this constitution for a period of three months shall be suspended for membership. The delinquent to be notified in writing, of such action by the Financial Secretary after sixty days, and if such delinquent shall fail to place himself in good standing within thirty days after such notice he may be expelled. A member • who is delinquent for a period of thirty days will not be allowed a seat in the meeting or to work until he has placed himself in good standing. . . .”

> “Article V. Duties of Officers. . .

> “Section 4. The Financial Secretary-Treasurer shall keep a correct account between this Union and its members. He shall collect all dues, . . . notify all members in arrears of the amount of their indebtedness . . . .”

Plaintiff received a letter from the defendant Union dated July 6, 1939, signed “Fay Abbott, Financial Secretary” stating:

> “Pursuant to Article VIII of our contract with the Blackwell Zinc Co. and the by-laws of our Local, you are hereby officially notified that if you fail to reinstate and pay the $10.00 penalty on or by the 20th day of July legal action will be taken against you.

> “The penalty of this is dismissal from work until the requirements are complied with.”

The company received a letter from the defendant Union dated July 31, 1939, as follows:

> “Pursuant to section 1, Article VIII of the existing contract with you, we hereby request that Brother Ed Kyrk, a member of this organization on June 2nd, 1939, be immediately suspended from further employment with your company until he has placed himself in good standing with this organization by the payment of $15.00, which constitutes dues and assessments which he is now in arrears and as is provided for by the Constitution and By-Laws of The American Federation of Smelter Workers Federal Labor Union No. 21538.”

The Company wrote the plaintiff a letter on August 1, 1939, attaching a copy of the letter from defendant Union and advising plaintiff that unless the-Company received notice by August 5,. 1939, that satisfactory arrangements, had been made with defendant Union, it would be necessary to suspend the-plaintiff from employment.

Plaintiff was suspended from employment on August 5, 1939.

On January 16, 1940, plaintiff filed' an action against the defendant Union asking for judgment of the court finding’that he was not a member of the defendant Union and restraining defendant from interfering with his employment.

The defendant filed an answer claiming plaintiff was a member of the said' Union, admitting that it had caused him to be discharged, and further alleged that upon payment of $15 delinquent dues and assessments, plaintiff would be permitted to return to-his employment.

The trial court found the issues hr favor of the defendant Union and. against the plaintiff and denied injunction.

Thereafter the plaintiff tendered the-sum of $17 in payment of delinquent dues and assessments upon condition *466that he be restored to his former job. The tender was refused with a statement that defendant could only certify him for employment; that reinstatement to his former job and to seniority rights rested with the employer company.

Thereafter, in August, 1941, this action was commenced.

It is conceded that under the laws of the Union and by virtue of the contract with the company, the Union could have a member suspended from employment for failure to pay dues. Under the undisputed evidence the plaintiff paid no dues except $1 for the month of March, 1938, and was delinquent in his monthly dues in the sum of $15 in June, 1939.

The written demand, dated July 6, 1939, and signed by the financial secretary of the Union, that plaintiff reinstate by July 20th or suffer dismissal from work, did not name a sum of money in excess of the lawful dues owed by plaintiff. There is no evidence that plaintiff after receipt of this letter made any request of the defendant for any statement of the amount of lawful dues for which he was in arrears, or that he made any tender of his delinquent dues in any amount. The letter from defendant to the Company, dated July 31, 1939, which resulted in plaintiff’s dismissal from work, requested plaintiff’s dismissal only until he should place himself in good standing by the payment of $15 delinquent dues and assessments. It does not appear that any sum had been assessed against him except the dues. Plaintiff had notice of this letter and its contents through a letter from his employer dated August 1, 1939. The employer’s letter also informed him that the Union’s request would be honored unless satisfactory arrangements had been made by August 5, 1939. No tender of his lawful dues was then made by plaintiff.

These acts of the defendant which resulted in plaintiff’s dismissal from work do not show any demand upon plaintiff that he pay a fine or any amount in excess of his legal dues.

As noted above, after his suspension from employment, plaintiff made a conditional tender of his delinquent dues to the defendant, but upon conditions which were beyond the powers of the Union to fulfill under its contract with the employer.

. We find no evidence reasonably tending to prove that defendant, acting without authority, caused plaintiff to be discharged and kept from his employment and no evidence reasonably tending to support the verdict and judgment entered thereon in favor of plaintiff.

The judgment is reversed, with directions to enter judgment for defendant.

HURST, C.J., DAVISON, V.C.J., and RILEY, BAYLESS, CORN, GIBSON, and LUTTRELL, JJ., concur.