Pawlak does not aver that he has never received or seen a copy of the Union's International Constitution or the Local's By-Laws which contain explicit reference to the trials and appeals procedure. The mere fact that he has never been involved in or aware of the use of that mechanism cannot catapault him over the exhaustion hurdle to this Court's jurisdiction. If, despite his position as a shop steward, he was ignorant of his intra-union procedural rights, he now knows about and can utilize them.
A fine or suspension of Local President Greenawalt for his refusal to process the grievance would be inadequate to rectify Pawlak's underlying complaint -- the new Method of Dispatch. The intra-union relief available to him is not, however, so limited. In addition to being fined or suspended, a local officer may be commanded ". . . to do or perform, or refrain from doing or performing, specified acts", which would include the processing of a grievance. International Constitution, Article XIX, Section 9(a). Therefore, the Union's internal machinery does make it feasible for Pawlak to overcome the Local's recalcitrance and have his grievance processed without the aid of this Court.
Pawlak's allegation that the Union thwarted his attempts to pursue his grievance is unsubstantiated. Although the Local's officers rebuffed him, the larger organization itself was never given an opportunity to act. Cf. Brady v. Trans World Airlines, 401 F.2d 87, 104 (3d Cir. 1968), cert. den. 393 U.S. 1048, 89 S. Ct. 680, 21 L. Ed. 2d 691 (1969); Ruzicka v. General Motors Corp., 523 F.2d 306, 311 (6th Cir. 1975). "It is no excuse that it would have been futile to present plaintiff's grievances to the local officers. The plaintiff was obliged to comply with the intra-union appeal procedure; and absent such compliance, the courts lack jurisdiction to hear the complaint." Imel v. Zohn Mfg. Co., 481 F.2d 181, 184 (10th Cir. 1973), cert. den. 415 U.S. 915, 39 L. Ed. 2d 469, 94 S. Ct. 1411 (1974). Unlike the employee in Vaca v. Sipes, 386 U.S. 171, 17 L. Ed. 2d 842, 87 S. Ct. 903 (1967), whose Union refused to process his grievance and who would have been remediless if turned away by the courts, Pawlak has options which he has not yet exercised.
Pawlak contends that even if his grievance is processed by the Union, it will amount to an exercise in futility because the parties whose activity he challenges will pass judgment on the complaint. Cf. Price v. International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, 46 F.R.D. 18 (E.D. Pa. 1969). However, the NMFA precludes any such occurrence. Pursuant to Article 8, § 1(a) a request for an interpretation of the NMFA, such as the one sought by Pawlak in this case, is to be submitted directly to the "Conference Joint Area Committee", also referred to as the "Joint Area Grievance Committee," see Article 43, § 8, which makes a record and immediately transmits the matter to the "National Grievance Committee." Article 43, § 2(a) provides that the Joint Area Grievance Committee is to be comprised of "Conference members" (companies) operating in eleven central and north central Pennsylvania cities as well as representatives from eight Locals. The Conference delegate and the Local representative from the city or Local involved in a proceeding before the Joint Area Grievance Committee are ineligible to act on that matter. Consequently, since representatives from the White Deer Interstate terminal and the Defendant Local are disqualified even from participation in the making of a record on Pawlak's grievance, he will not be forced to face the alleged malfeasants when presenting his contentions. Furthermore, the grievance will be finally adjudicated by a national committee which is even further removed from the situation out of which the dispute arises. The NMFA affords Pawlak as reasonably fair an opportunity to air his complaint as can be expected under a self-policing system.
In the light of the foregoing, Pawlak's omission of steps available to push his grievance bars his breach-of-contract action against Interstate. Although Interstate has not filed its own motion to dismiss, the Court will sua sponte note the absence of the necessary conditions precedent to its jurisdiction and dismiss the case against the company.
In addition to the grievance matter, Pawlak charges the Local with other violations of its duty of fair representation, specifically, the President's ultra vires execution of the November, 1976 dispatch agreement and his collaboration in a breach of the NMFA. For the reasons discussed above, Pawlak's failure to pursue the intra-union appeals procedures available to him in an attempt to reverse the Local's deeds precludes his action against the White Deer Local at this time. Consequently, the Local's motion to dismiss will be granted, and the suit dismissed in its entirety.
Any claim that pursuit of the intra-union avenues would inflict irreparable harm on Pawlak does not withstand analysis. A union's breach of its duty of fair representation may in some factual circumstances inflict injury which cannot be remedied at law. However, as discussed above, the alleged prejudice to Pawlak attributable to the new Method of Dispatch and exacerbated by the Local's recalcitrance can be substantially compensated by money damages.
In light of the foregoing, the Court need not reach the issue of whether Pawlak may prosecute this case both as an individual and on behalf of other over-the-road drivers in his capacity as "shop steward". It is to be noted, however, that Pawlak has not sought class certification under F.R. Civ. P. 23.
An appropriate order dismissing the above-captioned case for lack of subject-matter jurisdiction will be entered.
The above-captioned case is dismissed by reason of the Court's lack of subject-matter jurisdiction.
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