found in State of Washington v. United States, 9 Cir., 87 F.2d 421, at page 427, which, as quoted in Metropolis Theatre, 170 F.2d at page 485, reads as follows:
"After first determining that such party is interested in the controversy, the court must make a determination of the following questions applied to the particular case: (1) Is the interest of the absent party distinct and severable? (2) In the absence of such party, can the court render justice between the parties before it? (3) Will the decree made, in the absence of such party, have no injurious effect on the interest of such absent party? (4) Will the final determination, in the absence of such party, be consistent with equity and good conscience?"
The State of Washington case then pointed out that if any of the foregoing questions must be answered in the negative, then the absent party is indispensable.
The situation presented is suggestive of that which was considered in Hanson v. Hutcheson, 7 Cir., 1954, 217 F.2d 171, which affirmed a dismissal of a diversity action brought by a member of an unincorporated labor union for an accounting of union funds for failure to join as a defendant the union local, membership by the plaintiff in which was essential to the maintenance of the action. The dismissal was affirmed, despite the recognition that if the indispensable party were joined, jurisdiction in the Court would be destroyed by reason of the consequent removal of diversity.
Two local labor unions were also held indispensable parties by the Third Circuit Court of Appeals in Fitzgerald v. Haynes, 1957, 241 F.2d 417, which affirmed a dismissal for failure to join the two unions. In this case, the action was brought by the president of a national labor union, individually and as representative of members thereof, to enjoin recent officers and field representatives of two local unions, chartered by and affiliated with the national union, from using local unions' funds or other property or placing them beyond the national union's reach, receiving money payable to local unions, and representing that such unions had seceded or disaffiliated from the national union and assigned their rights under a collective bargaining agreement with a certain corporation to rival the international union. Judge Hastie wrote, at page 419:
'With one exception, the federal and state courts of first instance which have considered these cases have agreed that the local unions concerned are indispensible parties. 'The primary interest' of the local, the 'primary impact' of the alleged wrongs upon the local, the indecisive character of adjudication in its absence, and the necessity for construing union charters and association polity have been stressed as reasons for this conclusion. (Citing cases.) We have already indicated our though that these are good reasons.'
It appears on the face of the complaint that plaintiffs seek enforcement of claimed rights under like contracts negotiated in their behalf and in behalf of the Spector employees by the same Union, which is also accused by the plaintiffs of conspiring with Spector to give preference in seniority to persons who were employees of Spector before the personnel merger. In the absence of the Union as a party to the suit, which is not only a party to the contract relied upon but as such represents both the former Mid-States and the Spector employees, it is obvious this court could not render justice between the parties presently before it and any decree which it might undertake to enter without the joinder of the Union would necessarily have an injurious effect upon the Union's interest and upon the interests of the original Spector employees of whose seniority preference the present plaintiffs complain. Therefore, without the joinder of the Union, as the representative of all of the employees, a final determination respecting the plaintiffs' claims would be inconsistent with equity and good conscience, if attempted to be achieved in the absence of the Union as a party defendant.
The complaint in the case at bar will be dismissed, but with leave to plaintiffs to join as a party defendant the accused Union as the representative of the so-called 'Spector employees,' subject, however, to any risk of the elimination of diversity jurisdiction which such joinder may present.
An order may be presented in conformity with the conclusions embodied in the foregoing opinion.
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