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DERR v. BRIGHT

February 26, 1969

Daniel C. Derr, Jr., Plaintiff,
v.
Herbert C. Bright et al., Defendants.


Sheridan, D.J.


The opinion of the court was delivered by: SHERIDAN

This is a motion by defendants to dismiss the complaint.

 Plaintiff, Daniel C. Derr, Jr., a rank and file member of Local Union No. 764, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, a voluntary labor organization having its principal place of business in Milton, Pennsylvania, brought this action in the Court of Common Pleas of Northumberland County, Pennsylvania, against defendants who are officers and agents of the Union. Upon petition by the defendants, the action was removed to this court. Original and, therefore, removal jurisdiction of this court was invoked under Section 301 of the Labor Management Relations Act of 1947, 29 U.S.C.A. § 185. *fn1" Plaintiff alleges that: he is a member in good standing in the Union; defendant, Frank P. Mazol, the business agent, occupies a position of trust with relation to the Union and its membership and is under a duty to act for the benefit of the Union members; Mazol violated this trust and the Union constitution by permitting plaintiff's employer, New Penn Motor Express, Inc., to post bids, in violation of a collective bargaining agreement existing between the Union and New Penn, resulting in a decrease in wages for plaintiff; plaintiff filed charges against Mazol with the Executive Board of the Local Union; the Executive Board which consists of the other defendants in this action, condoned Mazol's actions; and as a result of the illegal bids, which were subsequently retracted, plaintiff lost $900 in wages. Judgment for that amount, together with interest, is demanded.

 While the complaint is unclear, it appears from the allegations and exhibits that the posting of the bids was resisted by Charles Greenwalt, a Union member, in a grievance proceeding brought pursuant to the collective bargaining agreement to No. R-10-67-2 against New Penn. The Central Pennsylvania Motor Carriers Grievance Committee ruled against Greenwalt. Thereafter, in accordance with that decision, Mazol agreed to the posting of the bids. Plaintiff brought charges against Mazol, and the Executive Board rendered a 6-1 decision in favor of Mazol. In so doing, the board noted that the Union was not in agreement with the committee's decision, but concluded that the charges against Mazol were without merit because he had acted in accordance with the committee's decision. Plaintiff then brought this action against Mazol and the members of the Executive Board.

 Defendants argue that the motion should be dismissed for failure of plaintiff to exhaust Union remedies. Defendants attached to their brief a copy of certain pages of the Union constitution dealing with the trial of local union officers and appeals. Since the entire trial and appellate procedure was not attached, it cannot be determined whether the constitution provides for such matters as mandatory exhaustion of Union remedies, and whether the appellate procedure would afford plaintiff full and adequate remedy. Plaintiff argues that the exhaustion of internal Union remedies is a permissive and not a mandatory procedure. For purposes of this motion, the court will assume that it is mandatory and that appellate procedures afford adequate remedy.

 In NLRB v. Industrial Union of Marine Workers, 1968, 391 U.S. 418, 20 L. Ed. 2d 706, 88 S. Ct. 1717, one Holder filed an accusation with his local union that its president had violated the constitution of the union by causing Holder's employer to discriminate against him because he had engaged in protected union activity with respect to his employment. The local union decided in favor of the president; but Holder did not pursue the intra-union appeals procedure that was available to him. Instead, he filed with the National Labor Relations Board an unfair labor practice charge against his local union on the grounds that the union violated Section 8(b)(1)(A) of the National Labor Relations Act, 29 U.S.C.A. § 158(b)(1)(A). The unfair labor practice charge was based on the same alleged violations by the president. While Holder's charge was pending before the Board, the local union charged him with a violation of the union's constitution because he had filed his charge with the Board without exhausting internal remedies. After hearing, he was expelled from the union, and the action was affirmed in an appeal to higher union echelons. Plaintiff then filed a second charge with the Board, contending that his expulsion was improper because he had a right to pursue his remedies before the Board without first exhausting union remedies. The Board agreed, and issued a remedial order. The Court of Appeals refused to enforce it and held that while the union could not expel a member because he filed an unfair labor practice charge, it did have the right to enact rules which gave the union "a fair opportunity to correct its own wrong before the injured member should have recourse to the Board." *fn2" The Supreme Court reversed:

 
"The main issue in the case is whether Holder could be expelled for filing the charge with the Board without first having exhausted 'all remedies and appeals within the Union' as provided in § 5 of Article V of the constitution, already quoted.
 
" . . .
 
"In the present case a whole complex of public policy issues was raised by Holder's original charge. It implicated not only the union but the employer. The employer might also have been made a party and comprehensive and coordinated remedies provided. Those issues cannot be fully explored in an internal union proceeding. There cannot be any justification to make the public processes wait until the union member exhausts internal procedures plainly inadequate to deal with all phases of the complex problem concerning employer, union, and employee member. If the member becomes exhausted, instead of the remedies, the issues of public policy are never reached and an airing of the grievance never had. The Court of Appeals recognized that this might be the consequence and said that resort to an intra-union remedy would not be required if it 'would impose unreasonable delay or hardship upon the complainant.' 379 F.2d at 707.
 
"The Court of Appeals found support for its contrary position in § 101(a)(4) of the Labor-Management Reporting and Disclosure Act of 1959. 73 Stat. 522, 29 U.S.C. § 411(a)(4). While that provision prohibits a union from limiting the right of a member to institute an action in any court or in a proceeding before any administrative agency, it provides that a member 'may be required to exhaust reasonable hearing procedures' 'not to exceed a four-month lapse of time.'
 
"We conclude that 'may be required' is not a grant of authority to unions more firmly to police their members but a statement of policy that the public tribunals whose aid is invoked may in their discretion stay their hands for four months, while the aggrieved person seeks relief within the union. We read it, in other words, as installing in this labor field a regime comparable to that which prevails in other areas of law before the federal courts, which often stay their hands while a litigant seeks administrative relief before the appropriate agency.
 
" . . .
 
"We conclude that unions were authorized to have hearing procedures for processing grievances of members provided those procedures did not consume more than four months of time; but that a court or agency might consider whether a particular procedure was ' reasonable' and entertain the complaint even though those procedures had not been 'exhausted.' We also conclude, for reasons stated earlier in this opinion, that where the complaint or grievance does not concern an internal union matter, but touches a part of the public domain covered by the Act, failure to resort to any intra-union grievance ...

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