when a member has a grievance against the Union, it requires him to attempt to correct that grievance on an internal level prior to taking his court action. Such a provision is completely reasonable and not in violation of any constitutional rights of the individual.
In the Polin case the plaintiff was expelled from the union for bringing a suit against the union and circulating literature based on the complaint filed in court. The expulsion was on the basis of the appeal section of the constitution, which set forth the methods of appeal within the union. The court in that case noted that the provision in question had nothing to do with expulsion per se from the union, but merely set forth a list of procedures, and restored him to membership. However, it is important to note, in arriving at the decision in question, the court recognized the doctrine of Weiss v. Musical Mutual Protective Union, 1899, 189 Pa. 446, 42 A. 118, which reads into the constitution an implied ground for expulsion where there is no express ground, 'when a member has been guilty of some infamous offense, or has done some act tending to the destruction of the society,' 189 Pa. at page 451, 42 A. at page 120. The court found that the conduct of Polin did not violate that implied provision and under the circumstances noted that the right to bring the action was absolute in that particular fact situation.
It is also important to note that the court recognizes that there is an area in which a union can properly discipline a member for bringing suit, even though such conduct might be privileged with respect to a libel and slander action. At page 835 of 177 N.E. the Court stated:
'If the evidence given before the executive board, which we have not seen, established that the assertions made by the plaintiffs in the circulated statements, concerning the misconduct of the union officers, were unfounded, or were made maliciously without probable cause, and that they tended to the disruption of the union, we are not prepared to say that it would not have justified an expulsion. The difficulty is that the union did not expel the plaintiffs upon this charge.'
I believe that statement to be good law. While any statements made in an action brought in any court of record are absolutely privileged with respect to libel and slander, I do not believe that any union member has an absolute privileged right to bring an action against the union based upon false statements maliciously made and without any probable cause.
In the Polin case the court approved that doctrine even in the absence of an express provision in the constitution against bringing suit prior to the exhausting of internal remedies. Though it is unnecesary for the purposes of this decision, since Underwood's suspension was justified on the ground of refusal to follow valid orders alone, this court likewise feels that a provision in a union constitution which would allow disciplinary action against a member under the conditions pointed out by Justice Kellogg in the Polin case, would be entirely reasonable, and the court notes that the facts presented in this case very nearly approach such a situation.
The plaintiff also cites the following cases as refuting the principle of law above enunciated: Wagner v. Bell, 1949, 70 Pa.Dist. & Co.R. 411; Yearsley v. Franklin Lamp Mfg. Co., 1929, 97 Pa.Super. 538; Matson v. Margiotti, 1952, 371 Pa. 188, 88 A.2d 892; Commonwealth v. Shipherd, 1945, 157 Pa.Super. 27, 41 A.2d 429; Kemper v. Fort, 1907, 219 Pa. 85, 67 A. 991, 13 L.R.A., N.S., 820.
A close reading of these cases shows that each is inapposite to the facts of the present case.
In the Wagner case the principle of law enunciated is that relevant statements before an unemployment compensation board are absolutely privileged, since the proceedings are quasi-judicial.
In the Yearsley case the court held that a statement that the plaintiff was incompetent, made in a prior action over alleged nonpayment of wages, was relevant and pertinent to the issues and was privileged.
In Matson v. Margiotti, supra, the court merely upheld the principle that the actions of the Attorney General of Pennsylvania made in the course of his duties as Attorney General were absolutely privileged.
In the Commonwealth v. Shipherd case the Superior Court of Pennsylvania reversed the action of a lower court which refused to extend the coverage of the so-called 'church cases' to unions. it held that testimony before a union board pertinent and relevant to the issue and not maliciously made constituted a qualified privilege for which there could be no prosecution. The net effect of this case is a strong, implicit recognition of the validity and sanction of International Union trials. The court further remarked that the peaceful disposition of matters relating to International Union affairs in an organization of employees formed to further the interest of the member with respect to higher wages and improved labor conditions, and so forth, is essential for the attainment of its objectives and for the retention of public confidence.
In the Kemper v. Fort case the court simply repeats the correct rule of law that when alleged libelous matter in pleadings is relevant and pertinent to the issue of a case, there is no liability for uttering it. The case has no application to a situation where a party has bound himself by the provisions of a contract which contains mutual benefits to both parties, and certainly does not stand for the proposition that a reasonable regulation which attempts to work out matters internally before going to court is unreasonable, unconstitutional, and void. For an excellent discussion of this phase of the case, see Hall v. Morrin, Mo.App.1927, 293 S.W. 435, 439, 440.
It follows, therefore, from what has been said in the oral opinion and in this supplemental opinion, that the order entered by the court in this case properly resolves the equities between Underwood, the local union, and the International Union of Operating Engineers.