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NEIPERT v. ARTHUR G. MCKEE & CO.

March 31, 1978

MARSHALL NEIPERT
v.
ARTHUR G. McKEE & COMPANY, and THE LEHIGH VALLEY DISTRICT COUNCIL



The opinion of the court was delivered by: TROUTMAN

 TROUTMAN, J.

 This is an action brought by plaintiff against his former employer, defendant Arthur G. McKee & Company (McKee) and against the Lehigh Valley District Council (the Council), an affiliate of the United Brotherhood of Carpenters and Joiners of America (the Brotherhood) of which plaintiff was a member. Plaintiff alleges that McKee's termination of plaintiff's employment on July 17, 1975, was in violation of the collective bargaining agreement between McKee and the Brotherhood, and that the Council, the collective bargaining representative of plaintiff as a millwright employed by McKee, breached its duty of fair representation. This action is brought pursuant to the Labor Management Relations Act of 1947, 29 U.S.C. § 185.

 Plaintiff was employed by McKee as a millwright at its coke battery job at Bethlehem Steel in Bethlehem, Pennsylvania, since January of 1975. On the Monday following July 4, 1975, the "6th or 7th" according to plaintiff (that Monday was July 7), plaintiff was discharged by McKee, allegedly because of complaints about his work. Plaintiff immediately complained to the Council's Business Agent, John Kuzmiak. Kuzmiak and plaintiff met the next day to discuss the grievance and then they went to Bethlehem Steel to meet with officials of McKee. At the conclusion of this meeting, plaintiff was reinstated.

 Plaintiff alleges "there was bad feeling as a result of his being reinstated", and that he was being closely watched. On July 17 he was again discharged, this time because he parked his car in a restricted area despite the fact that specific parking arrangements had been made for McKee employees. Plaintiff contends that he had never been explicitly informed that he was forbidden to park in that area, but that he had learned not to park there "from word around". Earlier in the day plaintiff had been told by a Bethlehem Steel employee to remove his car from that lot and he did so. That was the first direct information he had received as to removing his car from the lot, even though he had parked there perhaps a dozen times previously, occasionally with other drivers. He knew that other individuals had been warned not to park there, and were told the car could be towed and a towing charge imposed.

 Following termination plaintiff contacted his union steward, who told him, without stating a reason, that nothing could be done. Plaintiff contacted Kuzmiak who investigated the matter, discussed it with supervisory personnel and the union steward, and informed plaintiff that he could not alter McKee's decision. He then asked Kuzmiak to take the matter to arbitration, and Kuzmiak indicated this would be a Council decision. Kuzmiak also noted that plaintiff could pursue other remedies such as an action before the National Labor Relations Board.

 To pursue the matter further, plaintiff consulted Attorney Peter O'Brien, and O'Brien on July 28 forwarded a letter to the Council demanding arbitration. At the Council's regular monthly meeting on August 6, in which plaintiff was not permitted to participate, Kuzmiak informed the Council that plaintiff had been discharged and of O'Brien's demand for arbitration. He also indicated that he had investigated the matter thoroughly and in his opinion the discharge was justified. However, because of the nature of the grievance the Council decided to hear plaintiff. Thus, plaintiff was advised of the meeting to be held on September 3, and in a letter dated August 18 was told that his presence was requested.

 Plaintiff admits that prior to the institution of this action he never filed an appeal pursuant to Section 57 G of the Constitution and Laws of the United Brotherhood of Carpenters and Joiners of America, which provides:

 
"Any member, or any Local Union, District, State or Provincial Council having any grievance may appeal to the General President within thirty (30) days from the date the grievance occurred. All protests directed to the conduct of nominations or elections, or election procedures, in any subordinate body may be appealed to the General President within thirty (30) days from the date of the election. All grievances and election protests shall be in writing and shall contain a brief statement of the grounds relied upon. Decisions of the General President on protests directed to the conduct of nominations or elections, or election procedures, shall be final. Decisions of the General President on grievances may be appealed to the General Executive Board, whose decision shall be final. Also, decisions of the General President on grievances may be appealed to the General Executive Board, whose decision shall be final. Also, decisions of the General Executive Board in all cases involving geographical jurisdiction, mergers, consolidations, and formation of Councils shall be final."

 The Council contends that plaintiff, having failed to exhaust his intra-union remedies, is barred from bringing this action.

 As a general rule, a union member charging unfair representation must exhaust such available remedies before he may bring an action against a union. Brady v. Trans World Airlines, 401 F.2d 87 (3d Cir. 1968), cert. denied, 393 U.S. 1048, 89 S. Ct. 680, 21 L. Ed. 2d 691 (1969); Gainey v. Brotherhood of Railway & Steamship Clerks, 313 F.2d 318 (3d Cir. 1963); Hubicki v. ACF Industries, Inc., 484 F.2d 519 (3d Cir. 1973). Plaintiff contends that because he was never informed of the rationale for the discharge or for the decision of the Council not to pursue the discharge grievance, any further effort on his part would be futile. In Brady v. Trans World Airlines, supra, at 104, the Court declared:

 
"* * * Mr. Brady's argument that it would have been futile to ask the IAM to review its own dealings with him is not tenable for IAM's internal procedure provided reasonably prompt review of his contentions on union levels higher than those responsible for the decisions against him."

 For exactly that reason, we cannot accept plaintiff's contentions because such appeal would have given rise to review of his contentions on union levels higher than those responsible for the decision against him. He could have reasserted his contentions regarding his discharge and raised the issue of the peremptory conduct of the Council and its refusal to disclose its rationale. In other words, he could have appealed both the refusal of ...


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