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April 25, 1979

Lloyd R. HUMMEL and Robert A. Gartner, on behalf of themselves and all other members of Local 492, Bakery and Confectionery Workers' International Union of America, AFL-CIO, similarly situated
Robert C. BRENNAN, Secretary-Treasury and George Szatkowsky, President-Business Manager and Local 492, Bakery and Confectionery Workers' International Union of America, AFL-CIO

The opinion of the court was delivered by: BECHTLE


Presently before this Court are the motion of the defendants to dismiss, pursuant to Fed.R.Civ.P. 12(b)(1), and the motion of the plaintiffs for a preliminary injunction, pursuant to Fed.R.Civ.P. 65. After careful review and consideration of the testimony and exhibits presented by the parties at the preliminary hearing and the supporting pleadings, briefs and arguments of counsel, the Court makes the following narrative findings of fact and conclusions of law.

 This case has been filed as a class action, pursuant to Fed.R.Civ.P. 23, by plaintiffs Lloyd R. Hummel ("Hummel") and Robert A. Gartner ("Gartner"), on behalf of themselves and all other similarly situated members of Local 492, Bakery and Confectionery Workers' International Union of America, AFL-CIO, against defendants Robert C. Brennan, Secretary-Treasurer of Local 492; George Szatkowsky, President-Business Manager of Local 492; and, Local 492 of the Bakery and Confectionery Workers' International Union of America, AFL-CIO ("Local"). Jurisdiction for this action is based upon Section 102, 29 U.S.C. § 412 of the Labor-Management Reporting and Disclosure Act of 1959 ("LMRDA"), As amended, 29 U.S.C. § 401, Et seq. *fn1" The plaintiffs challenge the method by which the Local effectuated a dues increase by ballot vote at five separate shop unit meetings, on the ground that the voting procedure violated Section 101, 29 U.S.C. § 411(a)(3)(A), and the constitution and bylaws of Local 492. The plaintiffs pray: (1) for a preliminary injunction enjoining the defendants from checking-off the increased dues rate; (2) an order requiring defendants to return to members of the class any excess dues which have been collected; and, (3) the awarding of attorneys' fees and costs. *fn2" The defendants have responded by filing a motion to dismiss the complaint, claiming a failure of the plaintiffs to first exhaust internal union remedies pursuant to 29 U.S.C. § 411(a)(4).


 The relevant facts in the instant case are as follows: On January 2, 1979, a notice was posted, pursuant to action taken by the Executive Board of Local 492, at all shop unit locations concerning the scheduling of a general membership meeting on January 7, 1979. The notice contained no indication that a union dues increase would be discussed or voted upon at that meeting. The following day, another notice was posted at the Nabisco plant detailing the scheduling of a union meeting of Nabisco workers on January 14, 1979. This notice also failed to make any mention of a dues increase proposal or vote. On January 7, 1979, the general membership meeting was held and was attended by approximately 35 to 40 members of Local 492. The poor attendance was attributed, in part, to inclement weather. At that meeting, the issue of a Local dues increase was raised from the floor by a member of the Executive Board. Based on a voice vote, it was determined that the question of a dues increase would be scheduled for a vote by the general membership of the Local at their respective next-scheduled shop unit meetings. Two days later, a notice was posted on all bulletin boards at the five plants by the Executive Board indicating that the issue of a dues increase would be voted upon at "your Shop Unit meeting." The proposed dues rate schedule was also set forth in the notice to the members. Subsequently, voting was conducted at the five shop units either at the plants or at union halls.

 On January 25, 1979, the combined results of the five shop unit votes were posted indicating that, of those members present and voting at the meetings, 472 were in favor of a dues increase, 284 were opposed and 2 ballots were declared void. On February 2, 1979, plaintiffs sent a letter to the General Executive Board of the Bakery and Confectionery Workers' International Union of America ("International Union"), notifying them of the plaintiffs' and other members' protest of the election procedures utilized at the shop unit meetings to enact the dues increase and that a complaint had been filed with the Local's union board in that regard. After review, on February 27, 1979, the Local's Executive Board informed the plaintiffs that their complaint lacked merit. Commencing approximately March 4, 1979, the dues increase was reflected in the dues deducted from the paychecks of all members of the Local. *fn3" The next day, an appeal was filed with the International Union's General Executive Board by the plaintiffs protesting the Local board's decision. The International Union informed the plaintiffs on March 19, 1979, that their appeal had been received and would be acted upon by the International Union "shortly." The hearing before this Court was held on March 21, 1979.

 Based upon the foregoing facts, the Court is faced with two conflicting motions of the parties defendants' motion to dismiss and plaintiffs' motion for preliminary injunction.

 I. Motion to Dismiss

 The defendants have filed a motion to dismiss the plaintiffs' complaint based upon the failure of the plaintiffs to exhaust union administrative remedies. In support of their motion, defendants refer to 29 U.S.C. § 411(a)(4), which provides:

Protection of the right to sue. No labor organization shall limit the right of any member thereof to institute an action in any court, or in a proceeding before any administrative agency, irrespective of whether or not the labor organization or its officers are named as defendants or respondents in such action or proceeding, or the right of any member of a labor organization to appear as a witness in any judicial, administrative, or legislative proceeding, or to petition any legislature or to communicate with any legislator: Provided, That any such member may be required to exhaust reasonable hearing procedures (but not to exceed a four-month lapse of time) within such organization, before instituting legal or administrative proceedings against such organizations or any officer thereof: And provided further, That no interested employer or employer association shall directly or indirectly finance, encourage, or participate in, except as a party, any such action, proceeding, appearance, or petition.

 (Emphasis added.) Defendants argue that this exhaustion-of-remedies provision requires that the plaintiffs exhaust all appeals to the International Union before this Court can exercise jurisdiction.

 The purpose of the above provision is to compel employees to seek internal union relief before requesting the aid of the courts. Goclowski v. Penn Cent. Transp. Co., 571 F.2d 747, 758 (3d Cir. 1977). This rationale is based upon a Congressional policy in favor of union self-government. Semancik v. United Mine Workers of America, 466 F.2d 144, 151 n. 6 (3d Cir. 1972). The decision is ultimately at the discretion of the trial judge, Amalgamated Cloth. Workers v. Amalgamated Cloth. Workers, 473 F.2d 1303, 1308 (3d Cir. 1973); Semancik v. United Mine Workers of America, supra, 466 F.2d at 151 n. 6, and the federal courts are not bound by state court exhaustion-of-remedies decisions. Detroy v. American Guild of Variety Artists, 286 F.2d 75, 78 (2d Cir.), Cert. denied, 366 U.S. 929, 81 S. Ct. 1650, 6 L. Ed. 2d 388 (1961); Deluhery v. Marine Cooks and Stewards Union, AFL-CIO, 199 F. Supp. 270, 274 (S.D.Cal.1961). Therefore, the Pennsylvania decisional law cited by the defendants is inapposite.

 Based on the unique circumstances presented here, irreparable harm has been shown by the plaintiffs. The dues increase amounts to a 20% To 45% Increase over the pre-increase uniform rate of.$ 9.00 per month paid by each member since 1977. Furthermore, the dues increase materially alters the dues structure from a flat rate to a percentage of each worker's weekly salary. For example, in the case of a worker earning $ 8.60 per hour based on the dues ratio of $ 8.60 X 1/2 hour's pay per week X 4.3 weeks per month the dues rate would amount to $ 18.50 per month, as opposed to the previous flat rate of.$ 9.00 per month. The Court finds that such an increase is substantial in amount, unusual in effect and a departure from the union's historic financial formula connecting it with its membership. Defendants' contention, that the ultimate resort to litigation to recover the monetary damages compensates for this loss, is impracticable and patently unrealistic. To force Local members to seek monetary damages at some future date would compel separate suits for relatively small sums of money damages. When such claims are balanced against the costs in time, money and delay of individual suits, such a course is easily seen as an undue and unnecessary burden on the workers affected.

 The court in Independent Tape Merchant's Association v. Creamer, 346 F. Supp. 456, 459 (M.D.Pa.1972), held that, where there would be the necessity for numerous suits between the same parties involving identical issues, this multiplicity of suits could constitute irreparable injury.

 The argument that monetary damages could be viably sought through a class action complaint is also equally unpersuasive here. A class action complaint for monetary damages would necessitate expending equal, if not greater, amounts of time and cost for the individual litigants. In any event, because of the claims seeking relief due to the denial of the statutory entitlement to a secret ballot on dues increases, monetary damages are inadequate here because these non-monetary claims are immeasurable. See A.L.K. Corporation v. Columbia Pictures Industries, Inc., 440 F.2d 761, 764 (3d Cir. 1971); Miller v. American Telephone & Telegraph Corporation, 344 F. Supp. 344, 349 (E.D.Pa.1972). The loss of crucial voting rights of the union membership provided under federal law cannot be readily defined in terms of dollars and cents.

 Therefore, it would be futile to require the plaintiffs here to first exhaust internal union remedies, in light of the showing at this juncture of irreparable harm suggesting immediate need for relief, as compared to the indefinite future administrative resolution of the dispute represented by the International Union's current response to plaintiffs' appeal filed on March 5, 1979, that it would be acted upon "shortly."

 Having found two exceptions to the general rule requiring exhaustion of internal union remedies, the Court has denied the defendants' motion to dismiss.

 II. Motion for a Preliminary Injunction

 The Supreme Court in Doran v. Salem Inn, Inc., 422 U.S. 922, 95 S. Ct. 2561, 45 L. Ed. 2d 648 (1975), set forth the standard to be applied by courts addressing a motion for a preliminary injunction: "The traditional standard for granting a preliminary injunction requires the plaintiff to show that in the absence of its issuance he will suffer irreparable injury and also that he is likely to prevail on the merits." Id., at 931, 95 S. Ct. at 2568. In addition, the Third Circuit has considered the following factors when determining the propriety of a motion for a preliminary injunction: (1) the possibility of harm to the other interested persons from the grant or denial of the injunction; and, (2) the public interest. Constructors Ass'n of Western Pennsylvania v. Kreps, 573 F.2d 811, 815 (3d Cir. 1978). See also A.L.K. ...

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