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June 13, 1979

Gordon MAURER, Louis Trapane, Walter Anderson, John Horek, Marvin Keefer, William A. Sitler, next of kin and Executor of the Estate of Paul W. Sitler, Louis Chea, Rudolph Felix, Joseph Koval and Michael Cicini
INTERNATIONAL UNION UNITED AUTOMOBILE, AEROSPACE AND AGRICULTURAL IMPLEMENT WORKERS OF AMERICA, Strick Corporation, and Local 644, United Automobile, Aerospace and Agricultural Implement Workers of America.

The opinion of the court was delivered by: NEALON


Presently before the court are cross-motions for summary judgment filed on behalf of plaintiffs and two of the defendants, the International Union and Local 644 of the United Automobile, Aerospace and Agricultural Implement Workers of America (UAW). The third defendant, Strick Corporation, opposes plaintiffs' motion for summary judgment and has requested that judgment be entered in its favor. Plaintiffs are 11 persons formerly employed by Strick in Berwick, Pa. *fn1" During their period of employment, which ended in 1974, plaintiffs were represented by Local 644 and the International. Many of the plaintiffs were active as officers in the Berwick unit of Local 644, one of 15 separate units in the Local and the unit operating in Strick's Berwick, Pa. plant. *fn2"

 The motions for summary judgment initially became ripe in late 1977. While the motions were under consideration, the Office of the General Counsel of the National Labor Relations Board ordered that there be a hearing before an administrative law judge to consider the related unfair labor practice charges. *fn3" Oral argument on the motions was held by this court on July 7, 1978. The final post-argument brief was filed August 7, 1978, although counsel has continued to keep the court apprised of recent decisions and other developments, especially with respect to the question of exhaustion of intraunion remedies. On November 16, 1978, Administrative Law Judge Joel A. Harmatz rendered a decision in the NLRB proceeding in which he concluded that neither the unions nor the Strick Corporation committed unfair labor practices. On March 19, 1979, an NLRB panel affirmed this finding of the administrative law judge, adopted his November 16, 1978, decision and dismissed the unfair labor practice charges. *fn4"

 Partial summary adjudication will be ordered for the defendants on the § 411 claim, and plaintiffs will be granted partial summary adjudication on the threshold issue of whether the duty of fair representation claim will be dismissed because of the failure to exhaust intraunion remedies. However, because of the existence in the record of certain material issues of fact necessary to decide the merits of whether there has been a breach of fair representation, there will be no entry of summary judgment on this claim. *fn5" And further, because I am persuaded that resort to intraunion remedies may be available now as a means of resolving this dispute, I will stay these proceedings for a three-month period to allow the present efficacy of UAW remedies to be tested. The factual recitation that follows will be limited primarily to matters about which there is no material dispute and on which partial summary adjudication will be granted and also to those matters pertinent to the stay. Disputed issues of fact pertinent to one of the remaining issues of whether there has been a breach of the duty of fair representation will be identified, but will not be discussed in detail. *fn6"

 On September 19, 1972, Strick and Local 644 signed a three-year collective bargaining agreement. The employees in the Berwick unit, all members of the union, numbered about 200. Within the next year and one-half, three "wildcat" strikes occurred following disputes over a variety of matters. On July 10, 1974, 12 employees from an evening shift left work to attend a union meeting. While they attended the meeting, the General Foreman ordered them discharged for unauthorized absence from their shift. None of the 12 employees is a plaintiff here. On the next day, July 11, attempts were made to settle the matter. Reinstatement was offered, but the 12 discharged nightshift workers insisted on reinstatement with backpay. On July 12, 1974, a Friday, the 12 organized a picket line around the Berwick plant. By the end of the day, most of the employees, including plaintiffs, had joined the walkout. During the following workweek (July 15 to July 19, 1974), whether as a result of choice or coercion by picketing employees, plaintiffs and the other employees honored the picket lines and the plant was shut down. Representatives of Strick, the International, and the Local made efforts to resolve the dispute, but were unsuccessful. Strick obtained a state court injunction against the picketing and warned the "wildcatting" employees that they could be discharged if they did not return to work. During the week when the plant was to be shut down for a summer vacation (July 22 to July 26, 1974), the striking employees, including plaintiffs, were discharged.

 Strick began hiring replacement workers. These newly hired employees crossed the picket lines of the discharged strikers. Ultimately, about 100 new employees were hired, and after their probationary periods were completed, all joined the Berwick unit of Local 644. At the same time the Local pursued a grievance on behalf of the discharged employees. The grievance was processed through arbitration. Prior to the arbitrator's decision, Strick also rehired a few of the discharged workers.

 The arbitration hearing was held November 1, 1974. At the hearing the union argued for reinstatement with full backpay for all the discharged workers. Strick contended that the discharges were proper under company rules and the collective bargaining agreement. The decision of the arbitrator was rendered November 27, 1974. The arbitrator upheld the discharge of the employees, concluding that Strick did not violate the collective bargaining agreement by discharging the striking employees or by rehiring replacement workers. However, he stated that a loss of employment and acquired seniority was too harsh a penalty, especially for those with a lesser involvement in the wildcat strike. Consequently, the arbitrator ordered that a re-employment roster be established, that vacancies, as they occurred, would be filled from the roster, and that those rehired from the re-employment roster would regain their old seniority.

 At the top of the roster would be placed in order of seniority all employees who worked a full shift on July 12, 1974, the first day of the work stoppage, along with those on authorized leave. Those who did not so qualify (including, for example, the initial picketing employees and those who joined them during working hours of the first day of the strike) would be placed at the bottom of the re-employment roster. The deadline for signing up for the roster was January 15, 1975. All the plaintiffs and about 100 of their fellow discharged employees signed a recall roster from which the re-employment roster would be prepared. However, after the arbitration award and through all of 1975, Strick rehired only one former employee.

 Following the arbitration decision, plaintiffs took no formal steps to maintain their memberships in the Local and International; neither was any formal action taken by the unions to discontinue their memberships. According to the record, the plaintiffs were never informed as to how to continue their memberships. *fn7" At least one other plaintiff was told that the membership would continue automatically, but only until the arbitrator's decision was rendered. *fn8" The International Representative recalled in his deposition that plaintiffs' memberships terminated when they failed to take certain affirmative steps (discussed infra) as required by the International's constitution. *fn9"

 These conflicting opinions and conclusions aside, the factual question of whether "membership" under the rules of the union continued can be determined by reference to the existing record. It was the ordinary practice of the Local to maintain laid-off employees as union members, and similarly to maintain as members former employees whose discharges were being contested by grievance or arbitration if a member from either group had some prospect of re-employment. *fn10" Even assuming plaintiffs, with their expectation of re-employment under the arbitration award, were in an analogous position, their good standing in the union would, however, continue only if they paid dues or were excused from doing so. Excuse from the dues requirement was governed by Article 16, section 19 of the union constitution, which mandated monthly reporting to the Financial Secretary of the Local. *fn11" Since it is undisputed that plaintiffs neither paid dues nor reported to the financial secretary, *fn12" plaintiffs were not "members" of the union. *fn13"

 Although the new members of the Berwick unit did not initially participate in the affairs of the union, activities in the other units of the Local and in the Local itself continued and once the arbitrator's decision was rendered, officials of the Local took steps to organize the new members of the Berwick unit. In late 1974 or early 1975, new officers of the unit were elected; only the new employees participated in the election. With the contract between the UAW and Strick due to expire on September 18, 1975, a negotiating committee was created in June 1975, composed of Local and International representatives and members of the Berwick unit. In July 1975, at the first negotiating session, Strick made a proposal that would later become section 21.01 of the new contract. Strick proposed elimination of the arbitration award by providing that the new contract would "supersede and cancel all previous agreements and/or arbitration awards."

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