any of its Local Unions * * * on account of any controversy for which a remedy by trial or appeal is provided for in this Constitution, unless and until he has first exhausted all such remedies of trial and appeal.'
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 by 29 U.S.C.A. § 411 in the light of the first proviso of § 411(a)(4).