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HARRIS v. INTERNATIONAL LONGSHOREMEN'S ASSN.

October 26, 1962

Herbert HARRIS et al.
v.
INTERNATIONAL LONGSHOREMEN'S ASSOCIATION, LOCAL 1291, and Richard L. Askew, President of Local 1291



The opinion of the court was delivered by: DUSEN

On May 2, 1962, plaintiffs (members of Local No. 1291 I.L.A.) filed a Complaint and a Motion For Preliminary Injunction (Document No. 2), claiming a denial of their rights, particularly the right to express their views, arguments and opinions upon union business at its meetings, as granted them by the Labor-Management Reporting and Disclosure Act of 1959, 29 U.S.C.A. § 411. *fn1"

Defendants then filed this Motion For Summary Judgment under Rule 56, F.R.Civ.P. (Document No. 3). This Motion was based on affidavits of Richard L. Askew, President of Local 1291, and James T. Moock, Vice-President of the I.L.A., AFL-CIO, assigned to the Philadelphia area, stating that no attempts to process the alleged grievances through the existing union machinery had been made.

 On May 15, 1962, D.C., 205 F.Supp. 45, the undersigned, after several days of testimony, entered an Order (Document No. 5) denying plaintiffs' Motion For Preliminary Injunction 'without prejudice.' This Order was based upon findings that plaintiffs had not exhausted the reasonable procedures available to them within the framework of the I.L.A. constitution before instituting legal proceedings against the union and its President.

 On May 25, 1962, plaintiffs filed a Renewed Motion For Preliminary Injunction (Document No. 6). The Renewed Motion stated, inter alia, 'That no reasonable hearing procedures exist within the Union Constitution or By-Laws for a redress of grievances occurring during the course of regular monthly union meetings of Local 1291.' Defendants' Answer to the Renewed Motion (Document No. 7) stated, inter alia, that (1) reasonable grievance procedures do exist and (2) 'Plaintiffs have not taken advantage of their internal remedies under the union constitution and bylaws although they are fully familiar with these procedures. The renewed motion is therefore defective on its face.'

 On July 16, 1962, D.C., 206 F.Supp. 731, the undersigned, after hearing additional testimony, entered an Order (Document No. 10) denying plaintiffs' Renewed Motion For Preliminary Injunction with prejudice.

 In order to comply with the Labor-Management Reporting and Disclosure Act, *fn2" the constitution of the I.L.A. provides a complete set of rules for the orderly adjudication of all grievances and appeals. The pertinent sections of the I.L.A. constitution (attached to Document No. 3) are found in Article XIX, 'Appeals.' Sections 1 through 5 provide the means and methods for taking an appeal. Section 6 (page 40) states:

 'Section 6. Whenever a decision is initially made, other than by the Executive Council or the Convention, an appellant, seeking to exhaust his remedies in accordance with the provisions of Section 5 of this Article, shall, notwithstanding the pendancy of any intermediate appeals, file an appeal with the Executive Council within ninety (90) days after having been served with a copy of the decision appealed from. If no Regular or Special Convention of the I.L.A. is held before the expiration of four (4) months of the date of the decision appealed from, the decision of the Executive Council on appeal shall be final and binding. If a Regular or Special Convention of the I.L.A. is held before the expiration of four (4) months of the date of the decision appealed from, then the final appeal must be taken to such Regular or Special Convention and its decision shall be final and binding, provided, however, that in all such cases appeals must first be taken to the membership of a Local Union and then to the Executive Council. If such Convention is held so close to the date of the decision appealed from as to preclude intermediate appeals such appeal must be taken to the Executive Council and finally to the Convention.'

 As noted in the Order of May 15, 1962 (Document No. 5, page 3), '* * * Bey was notified of the appeal procedure by letter of April 9, 1962 (P-3), * * *.' See, also, footnote 2 of Document No. 5.

 Plaintiffs' contention that 'no reasonable hearing procedures exist within the Union Constitution or By-Laws for a redress of grievances occurring during the course of regular monthly union meetings of Local 1291' is rejected.

 Excerpts from the transcript, illustrating plaintiffs' failure to exhaust their available internal union remedies, are contained in Exhibit A to this Memorandum. The testimony makes clear that copies of the Constitution and By-Laws were available to anyone who requested them.

 A careful reading of Article XIX of the I.L.A. Constitution indicates basic compliance with 29 U.S.C.A. § 411(a)(4).

 The testimony discloses that plaintiffs failed to exhaust their internal remedies. See Document No. 5 and, also, 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), and Rizzo v. Ammond, 182 F.Supp. 456 (D.N.J.1960), holding that members of a union, in accepting membership in the international and local, must be deemed to have subjected themselves to the provisions of the constitution and by-laws of the international, wherein remedies provided by the international constitution must be exhausted before the jurisdiction of a court may be involved under chapter II of Title 29 U.S.C.A.

 Plaintiffs cite Johnson v. Local Union No. 58, Inter. Broth. of Elec. Workers, 181 F.Supp. 734, at page 737 (E.D.Mich.1960), for the proposition that there may be times when 29 U.S.C.A. § 411(a)(4) (exhaustion of union remedies not exceeding four months) does not have to be followed. In this opinion, Judge Freeman states:

 'The plaintiffs admit that they did not avail themselves of this procedure to process their charges, but contend that the procedure provided for is 'unreasonable' for purposes of compliance with § 101(a)(4). This court is inclined to accept that contention in view of the multiple appellate agencies, their infrequent meetings and also in view of the fact that the constitution does not provide time limits for decision by such trial and appellate agencies. * * * this court finds that the hearing procedures provided for by the Union are 'unreasonable' for purposes of § 101(a)(4) and consequently did not need to be complied with.' (Emphasis supplied.)

 The underlined language does not apply to the situation presented by this record.

 While there may be occasions when the union's constitution need not be followed for failure to comply with § 411(a)(4), nevertheless, the courts should be cautious in disregarding instruments of union government that have been drawn in a ...


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