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March 25, 1981

Raymond MAIER
William PATTERSON et al.

The opinion of the court was delivered by: GILES



 This is an action for violation of the bill of rights for union members under 29 U.S.C. § 412, with pendent state tort claims. The defendants have moved for summary judgment.

 Plaintiff Raymond Maier commenced this action on October 21, 1977. He claims that, on February 20, 1977, he sustained injuries when assaulted and battered by defendant William Patterson who was acting in his official capacity as business agent and trustee for the defendant union, Local 107 of the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America ("Union"). Plaintiff alleges that the purpose of the physical assault was an attempt to take away his protected right of free speech and assembly and to otherwise discipline him for having exercised those rights. Labor-Management Reporting and Disclosure Act of 1959 ("LMRDA") title I, § 101, 29U.S.C. § 411. Jurisdiction is asserted under LMRDA, §§ 102, 609, 29 U.S.C. §§ 412, 529. Compensatory and punitive damages are sought.

 Specifically, Maier contends that he and other Union members, employees of the same employer, the Owens-Illinois Company ("OIC"), engaged in an official meeting with Patterson as their business agent to complain both about their employer and about Patterson's failure either to protect their job interests or to pursue their grievances with OIC. Several years earlier, employees of the same employer, including Maier, had made similar complaints of lack of representation and had petitioned for Patterson's removal as business agent. *fn1"

 In the course of the meeting on February 20, 1977, and allegedly upon hearing Patterson state that a grievance could not be filed, Maier alleges he said to Patterson, "You don't do nothing for us anyhow," and further, "That's the trouble, Bill, you don't do nothing for us anyhow." Deposition of Raymond Maier, at 38-39. Patterson then responded angrily, "You ain't nothing but a shitstirrer. I don't like you anyhow." Id. 39. Maier countered, "I don't like you either." Id. Whereupon, Patterson allegedly ran around his desk saying, "I'll kill you, you little motherfucker." Id. He then allegedly grabbed Maier by the neck and head and pushed his head through the glass of a closed window. Id. 39-40.

 Two days later, on February 22, 1977, Maier filed a complaint with the Federal Bureau of Investigation ("FBI"). Based upon its preliminary investigation, the FBI concluded that the physical assault appeared to be the result of a long-standing personal antagonism between Maier and Patterson rather than an antagonism generated by union connected matters. Hence, the FBI did not recommend to the United States Attorney criminal prosecution of the defendants.

 Maier never filed an internal union grievance or charge against Patterson as a result of the incident, nor did the Union investigate the incident or take any action against Patterson in his official capacity. Following the incident, Maier continued to attend Union meetings and has been treated the same as all other Union members.

 On November 15, 1978, defendants moved for summary judgment on the ground that the physical altercation was an isolated incident and no more than a personal incident between Maier and Patterson. They contend that it was certainly not discipline for protected activities imposed or caused by the Union within the meaning of "otherwise disciplined." LMRDA, § 101(a)(5), 29 U.S.C. § 411(a) (5). Defendants submit that, even assuming plaintiff could pass this first hurdle of proving there was discipline within the meaning of § 101(a)(5), the court should grant summary judgment for defendant because plaintiff has failed to exhaust any and all internal union remedies. Defendants further argue that, at worst, Patterson's conduct was solely private misconduct and that the Union itself cannot be held liable because it did not order, ratify, or participate in the assault and battery.


 It is well established that whether a plaintiff will be required to utilize his internal union remedies is a matter within the discretion of the trial judge. NLRB v. Industrial Union of Marine & Shipbuilding Workers, 391 U.S. 418, 428, 88 S. Ct. 1717, 1723, 20 L. Ed. 2d 706 (1967); Mallick v. IBEW, 644 F.2d 228, 237 (3d Cir. 1981). The Third Circuit has recognized that under certain circumstances it is particularly appropriate to waive the exhaustion provisions of LMRDA § 101(a)(4), 29 U.S.C. § 411(a)(4), "(t)hat 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 and any officer thereof." Those circumstances include situations where the plaintiff will suffer irreparable harm in jobs or in rights guaranteed under the LMRDA, where it is found that preservation of the individual interest is more important than that of union autonomy, and where the internal union appeals structure is inadequate, illusory, or controlled by those to whom the plaintiff is opposed. Under such circumstances, exhaustion is deemed excusable or futile. Semancik v. UMW, District # 5, 466 F.2d 144, 150-51 (3d Cir. 1972). Exhaustion is deemed excusable where the union has consistently taken a position opposed to that of the plaintiff and makes no indication that it will alter its views. Id. 151; Farowitz v. Associated Musicians, Local 802, 330 F.2d 999, 1002-03 (2d Cir. 1964).

 In assessing whether either of these circumstances is present here, an examination of the Union's by-laws demonstrates that now to require plaintiff to exhaust internal remedies would probably, or possibly, be to require a futile act.

 Section 20(A)(2) of the Union's by-laws states that "under no circumstances will a member have the right to have a hearing on charges based upon events occurring more than two (2) years prior to the filing of the charges." Inasmuch as the event giving rise to this lawsuit occurred more than three years ago, resort to the internal union procedures would be a futile act. *fn2" As has been stated in Semancik, the exhaustion proviso of § 411(a)(4) is not mandatory in all cases. A plaintiff cannot be required to exhaust uncertain illusory, or inadequate internal union procedures. Detroy v. American Guild of Variety Artists, 286 F.2d 75, 80 (2d Cir.), cert. denied, 366 U.S. 929, 81 S. Ct. 1650, 6 L. Ed. 2d 388 (1961). Moreover, a free speech violation generally justifies dispensing with the administrative remedies. Semancik, 466 F.2d at 150-51; Keeffe Bros. v. Teamsters, Local No. 592, 562 F.2d 298, 303 (4th Cir. 1977).

 Even if resort to the internal union procedures were a viable alternative, it is by no means clear from a reading of the Union Constitution and by-laws that a remedy for compensatory and punitive damages against the defendants would be available.

 Also present in this case is the suggestion of hostility by the very Union body which would at least initially review any charge by Maier. Patterson is not only a business agent and a trustee but is also a member of the Union's executive board. There has been no showing by the Union that Patterson would not participate in decisions of the executive board concerning Maier.

 Separately, there is the suggestion of condonation of Patterson's actions. Following the altercation, Patterson reported his version of the incident to the executive board, but it never investigated the matter to ascertain either Maier's version or that of the other members who were party to the incident. *fn3"

 Even though Maier alleges that Patterson tried to kill him in the Union offices concerning Union business, there was no internal investigation by the executive board. *fn4"

 The lack of internal action suggests the possibility of condonation by the Union executive board sided with Patterson and accepted his version of the incident. This is particularly true where the alleged physical assault arose out of a meeting involving other members as well.

 The assault could be interpreted as having the purpose of attempting to chill the right of free speech of those members, including Maier, to press their grievance concerns or to complain of Patterson's representation of them. See Wood v. Dennis, 489 F.2d 849, 855 (7th Cir. 1973) (en banc ...

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