(b) of the LMRA. The applicability of these sections to the facts alleged is not entirely clear to us, nor has anything we have heard in argument or read in plaintiffs' brief elucidated the matter. However, in light of our view of the Sherman Act charge which requires denial of the motion to dismiss, discussion of these other grounds is unnecessary.
The remaining substantive charge of the complaint in Count III alleges a denial to plaintiffs of rights guaranteed to them by §§ 101 and 609 of the Labor-Management Reporting and Disclosure Act. It is charged that several of the plaintiffs have been disciplined and fined without having been served with specific written charges and without a fair hearing. Plaintiffs allege that they have not appealed such discipline within the unions, as such action would be futile. Plaintiffs further allege denial of equal rights in the union, failure to allow plaintiffs to meet and assemble or to express their views at union meetings, and obstruction of access of plaintiffs to the courts and the NLRB. It is asserted that denial of these rights is enforced by threats of discipline and by economic coercion, such as failure to provide sidemen for engagements.
The basis of the motion to dismiss is that plaintiffs, by their own assertion, have failed to exhaust internal union remedies as required by the union bylaws. Section 301(a)(4) of the Act, it is contended, preserves the right of a union to require such exhaustion before initiation of any action. Defendants assert that even if futility is an exception to this rule, plaintiffs are required to allege facts in support of this conclusionary statement, and their failure to do so renders the pleading insufficient to justify an exception to the general requirement of exhaustion.
Defendants' position may be well taken with respect to internal appeals from the fines which were allegedly imposed after an improper hearing. However, the applicability of any internal union procedure to remedy alleged economic coercion of plaintiffs, as, for example, failure to supply sidemen, is not clear. Such union action, if it occurred, does not appear to be the result of any appealable union proceeding. Nor have defendants pointed out to us any procedure specified in its constitution or bylaws whereby members aggrieved by such union action could secure relief.
'When asserting what is clearly a violation of a federal statute, a union member should not be required to first seek out remedies which are dubious. Only resort to those expressly provided in the union's constitution or those clearly called to his attention by the union officials should be demanded of him.' Detroy v. American Guild of Variety Artists, 286 F.2d 75, 80 (C.A. 2, 1961).
On the present state of the record we cannot say that plaintiffs' failure to exhaust internal remedies is of such a nature as should constitute a bar to their proceeding in this action. Defendants' motion to dismiss Count III is denied.