grievance, it is clear from the administrative record, that this grievance refers to the charges from which his suspension flowed. The suspension was followed by plaintiff's discharge when he did not return to work.
We deny the union's motion to dismiss. Contrary to the union's argument, we hold that the complaint adequately charges that the alleged refusal to represent was the result of racial discrimination. Such an allegation clearly states a cause of action under 42 U.S.C. § 1981 and the jurisdiction of this court is provided by 28 U.S.C. § 1343(4).
Generally, a plaintiff need not exhaust administrative remedies before instituting suit, against a labor organization, under 42 U.S.C. § 1981. However, the union contends that, in the federal sector, plaintiff should exhaust the remedies available under Executive Order 11491 prior to the institution of suit against the union. We need not consider the general appropriateness of such a requirement; for, even assuming it is appropriate, it is not applicable here because the Executive Order does not provide a remedial process for the precise complaint of plaintiff.
The remedy provided by Executive Order 11491 is that an employee may file a complaint of an unfair labor practice with the Secretary of Labor. Discrimination by a labor organization, on the basis of race, with regard to the terms or conditions of membership in the labor organization is an unfair labor practice. However, plaintiff has not alleged membership in the union and he is apparently not a member. We can find no other section which might be applicable and the union has cited none. Consequently, we could not dismiss plaintiff's complaint for lack of exhaustion in this case, even assuming such a requirement should be generally applicable in this area.
However, the union is entitled to summary judgment. The affidavits presented by the union in support of its motion for summary judgment establish a key undisputed fact which entitles the union to summary judgment, i.e., that the plaintiff refused to sign a form providing the local union with the necessary authorization to completely process the grievance of the plaintiff concerning his suspension. Failure to represent is the entire cause of action against the union set out in the complaint, therefore on the basis of the undisputed fact that plaintiff refused to authorize the union's representation, we grant summary judgment in favor of the defendant union and against the plaintiff.
One other matter remains. Plaintiff has filed his complaint as a class action although a motion for class action certification has not been filed. On our own motion, we deny certification and dismiss the complaint as a class action without prejudice to a motion for reconsideration, of our decision on the class action, within twenty (20) days of the date of this order. We do so because we are convinced by the history of this litigation to date that plaintiff is not an adequate representative of the class. The disposition of the present motions has been marked by delay occasioned principally by the changes in counsel representing the plaintiff. The instability of plaintiff's relationship to counsel, which appears to be a continuing problem, for whatever reason, renders impossible a finding that plaintiff could adequately represent a class.
Accordingly, the following order is entered.
AND NOW, this 27th day of February, 1975, IT IS ORDERED that:
(1) The motion of Earl Butz and I.A. Wolfe to dismiss count 1 of the complaint and/or for summary judgment is GRANTED, and this action against Earl Butz and I.A. Wolfe is DISMISSED;
(2) The motion of the American Federation of Government Employees to dismiss count 2 of the complaint is DENIED;
(3) The motion of the American Federation of Government Employees for summary judgment is GRANTED and summary judgment is entered for The American Federation of Government Employees and against the plaintiff; and
(4) This complaint, as a class action, is DISMISSED without prejudice to plaintiff's motion for reconsideration, limited to our decision on the class action, within twenty (20) days of the date of this Order.
BY THE COURT:
CLIFFORD SCOTT GREEN, J.
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