The opinion of the court was delivered by: DUSEN
Plaintiffs (members of Local 1291) claim a denial of the rights, particularly the right to express their views, arguments and opinions and their views upon Union business at its meetings, assured them by the Labor-Management Reporting and Disclosure Act of 1959 (29 U.S.C.A. § 411). See Hughes v. Local No. 11 of Intern. Ass'n of Bridge, etc., 287 F.2d 810 (3rd Cir.1961). Plaintiffs and respondents presented testimony on May 8-11, inclusive, so that court action could be taken on the Motion prior to the regular monthly meeting of May 15, 1962.
Only two of the plaintiffs (Herbert (called 'New York') Harris and Bey) testified in support of this action and three of the plaintiffs (Milner, Budd and Martin) testified that they had been misled in signing a power of attorney which authorized plaintiff's counsel to bring this suit on their behalf. New York Harris had told them that, by signing the paper he presented to them, they would be protesting a proposed mandatory use of a central hiring point for all longshoremen and had not advised them either that a court suit would be brought or that it would claim a denial of the rights of the members of Local 1291 to speak at, make motions at, and participate in the Union meetings. I find that New York Harris did not testify accurately
and that these three plaintiffs were misled by him into signing the powers of attorney presented to them in such a manner that they did not see the typewriting on the pieces of paper (Exhibits P-6A and P-6B).
On this record, this court should not grant plaintiffs the relief they request in view of the provision in 29 U.S.C.A. § 411(a)(4) 'that any such member may be required to exhaust reasonable hearing procedures (but not to exceed a four-month lapse of time) within such organization, before instituting legal or administrative proceedings against such organizations or any officer thereof' and the following language in Article XIX, Section 5, of the Constitution (page 39 of Constitution attached to Respondents' Motion docketed as No. 3 in the Clerk's file):
See Tomko v. Hilbert, 40 Labor Cases 71,245 (par. 66,757) (W.D.Pa.1960), aff'd on other grounds 288 F.2d 625 (3rd Cir. 1961).
Although the procedure for appeals specified in Article XIX is not crystal clear, Bey was notified of the appeal procedure by letter of April 9, 1962 (P-3), as follows:
'You should first go through the Local Union, then to the District Council, then to the District and lastly, if no decision is reached your appeal should then be heard by the Executive Council of International.'
Section 6 of Article XIX makes clear that, where an appellant contemplates court action, he should file a copy of his appeal with the Executive Council within 90 days. The uncontradicted testimony of Mr. Moock (District Vice President) presented in this case was that this Council (or Board, as he called it) met regularly and acted promptly. No good reason has been shown why plaintiffs could not have secured a decision from this Council within 120 days of any alleged improper action of officers of Local 1291 before instituting this suit.
The only complaint, under the above Congressional Act,
of the above-mentioned plaintiffs, Harris and Bey, which requires discussion
is that a motion, which Bey alleges that he made at a Union meeting on April 17, 1962, and that two members seconded,
was not put to a vote. The motion, as described by Mr. Bey, was apparently for the appointment of a seven-man committee from the rank and file committee to deal with possible technological unemployment resulting from changes in the method of unloading sugar,
both in operations under the existing contract (D-5, pp. 13 & 14, § 13(d)) and in negotiations for a new contract which will take effect October 1, 1962. Assuming that this motion was made,
Bey or any other member of the Union could appeal in writing to the whole membership from the failure of the officers to put this motion to a vote and, if this appeal is denied, thence to the Executive Council, as provided in § 6 of Article XIX. Such appeal to the whole membership can be taken at tonight's meeting. It is clear that Harris and Bey, as well as most of the Union members who testified for them, are working together in opposition to what they consider as improper Union procedures. This group relies on Bey for leadership and he received the outline of the appeal procedures in the abovementioned letter of April 9, 1962 (P-3).
It is noted that a Union meeting was held on May 11, 1962, for the purpose of electing so-called 'rank and file' (not officials of the Union) members to participate in the negotiations for the new collective bargaining contract to take effect October 1, 1962.
Plaintiffs have not sustained their burden of persuasion on the following points:
A. Their contention that the 'whereas clause' in the Resolution submitted and approved at the meeting of April 17, 1962, providing that the officers had not received 'a wage increase' for 'over five years' (p. 114 of P-5), was a misrepresentation.
B. Any contention that Bey and Harris have not been accorded a reasonable opportunity to present their views and arguments over a period of years, as contended by them. It is significant that this suit was filed at a time of general rank and file dissatisfaction with the Union leadership over the use of a central hiring point, which has never been a past objection of theirs, even though they have been dissatisfied with the Union leadership for several years (see Exhibits D-1, P-1, P-2 and P-4) and have been unsuccessful candidates in opposition to the present President of Local 1291.
Since there has been confusion at the meetings in the past which may have operated to make it difficult for those opposed to the officers to present their views, this Motion is being denied without prejudice and it may be renewed at any time that Bey is denied the rights assured him ...