for moonlighting. After trial from May 26 to 28, 1969, a jury found the defendant union liable and in accord with a prior stipulation of counsel we directed a verdict on damages in the amount of $6,872.56.
The defendant makes three arguments in attempting to upset the verdict. He first argues that we should enter judgment notwithstanding the verdict because there is no evidence in the record that the union breached its duty of fair representation in handling Mr. Bazarte's claim. To the contrary, as the plaintiff correctly contends, the jury could properly have concluded that the union breached its duty of fair representation because: his union representative failed to adequately and fully prepare a proper defense for the plaintiff at the railroad hearing; that the same representative failed to advise the plaintiff of the steps necessary to appeal his discharge to the officials in the department in which the plaintiff was employed; that the union representative failed to bring all the relevant facts to the attention of other officers of the union; that other members of the union breached the responsibility of their office by not becoming fully acquainted with all the revelant facts of plaintiff's case; that the union lulled the plaintiff into a false sense of euphoria by not advising him that they were ceasing their efforts on his behalf; and that the decision of the officers of the union not to fight for plaintiff's job was based on an irrelevant consideration, the question of plaintiff's dual employment, since he had not been charged with a violation of the company's rules in that regard nor found guilty of such a violation.
In the first instance we charged the jury substantially in accord with the defendant's requests over the objection of the plaintiff. We related verbatim to the jury excerpts from Vaca v. Sipes, 386 U.S. 171, 87 S. Ct. 903, 17 L. Ed. 2d 842 (1967), and left to them the question as we understand that case as to whether the action of the union was arbitrary, capricious, or discriminatory. It is obvious that this was a jury question and that they resolved the foregoing issue in favor of the plaintiff.
The defendant's second ground for requesting judgment notwithstanding the verdict is that the plaintiff's claim is by law
barred by his failure to exhaust his internal union remedies. They cite the dictate of this Circuit most recently enunciated in Brady v. Trans World Airlines, Inc., 3 Cir., 401 F.2d 87 at p. 104 (1968) that:
"It has been the general rule, and the rule of this circuit, that before a suit against a union for breach of its duty of fair representation may be brought in the courts, the member must first exhaust the available internal union remedies, or show an adequate reason for failing to do so. There is good reason for this rule which forestalls judicial interference with the internal affairs of a labor organization until it has had at least some opportunity to resolve disputes concerning its own legitimate affairs."