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.
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.
II. EXHAUSTION OF INTERNAL UNION PROCEDURES
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.
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.
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.
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 ), cert. denied, 415 U.S. 960, 94 S. Ct. 1490, 39 L. Ed. 2d 575 (1974).
A plaintiff is not compelled to exhaust internal union remedies when the appeal would have to be made to the very officers against whom the complaint is directed. Calagaz v. Calhoon, 309 F.2d 248, 260 (5th Cir. 1962); Fulton Lodge No. 2, IAM, 415 F.2d 212, 216 (5th Cir. 1969), cert. denied, 406 U.S. 946, 92 S. Ct. 2044, 32 L. Ed. 2d 332 (1972); see Bradford v. Textile Local 1093, 563 F.2d 1138, 1141 (4th Cir. 1977). Here, of course, the charge would be received by the executive board, including Patterson.
Plaintiff also argues that because the Union's internal procedures, even if viable, cannot award him punitive or compensatory damages, he should not be required to exhaust those procedures. Although a reading of the Union Constitution and by-laws supports plaintiff's factual contention that damages are not available via Union procedures, his legal conclusion is incorrect. The absence of an express damage remedy is insufficient reason to excuse exhaustion. Winter v. Local 639, International Brotherhood of Teamsters, 186 U.S. App. D.C. 315, 569 F.2d 146, 149 (D.C.Cir.1977).
Finally, the pleadings in this case show that the Union has consistently taken an official position in this case that the altercation was not in any way connected to official misconduct by Patterson. The Union has not given any indication of a willingness to change its position. Verville v. International Association of Machinists, 520 F.2d 615, 621 (6th Cir. 1975). Under all the circumstances, plaintiff shall not be required to exhaust internal union remedies.
III. SUMMARY JUDGMENT
In considering a motion for summary judgment, the moving party has the burden of demonstrating that there is no genuine issue of fact as to any material fact and any doubt must be resolved in favor of the non-moving party. Toebelman v. Missouri-Kansas Pipeline Co., 130 F.2d 1016, 1018 (3d Cir. 1942). It is the court's sole function to decide whether there is a genuine issue of fact to be tried. Ettinger v. Johnson, 556 F.2d 692, 696 (3d Cir. 1977); Fairbanks, Morse & Co. v. Consolidated Fisheries Co., 190 F.2d 817, 824 (3d Cir. 1951).
A. Union Discipline
The first substantive question we face is whether plaintiff, as a matter of law, was "otherwise disciplined" within the meaning of LMRDA § 101(a)(5), 29 U.S.C. § 411(a)(5) (1976).
Title I of the LMRDA gives a bill of rights to union members. Sections 101(a)(1)-(4) guarantee substantive rights, while section 101(a)(5) provides procedural safeguards against discipline. Because it is undisputed that those safeguards were not provided to plaintiff, the pivotal issue is whether defendant's actions constituted "discipline" triggering section 101(a)(5)"s procedural protections.
Previous court interpretation of § 101(a)(5) indicates that "discipline" requires at least a detriment to a member placing him in a worse position than others in good standing. E.g., Miller v. Holden, 535 F.2d 912, 915 (5th Cir. 1976); T. Keeline, supra note 6, at 48-49. See also Morrissey v. National Maritime Union, 544 F.2d 19, 26 (2d Cir. 1976). When, however, the issue has been raised, the courts have held that some union actions meeting the above requirement are not "discipline" additional tests must be met. In particular, the two district courts which have considered violence have concluded that it is not discipline.
In Green v. Local 705, Hotel & Restaurant Employees, 220 F. Supp. 505 (E.D.Mich.1963), the complaint charged extortion, violence, and intimidation in connection with job referrals. The court held that this failed to state a claim under §§ 101(a)(5) and 102(a) because Title I should not be read "to usurp the appropriate criminal jurisdiction or applicable statutory prohibitions against illegal or unfair labor practices." Id. 507. Because this logic is questionable after International Brotherhood of Boilermakers v. Hardeman, 401 U.S. 233, 237-39, 91 S. Ct. 609, 612-614, 28 L. Ed. 2d 10 (1971) (discipline arguably constituting unfair labor practice is not preempted by NLRA), we do not rely on Green. See Annot. 43 A.L.R.Fed. 9, 57-58 (1979).
In Murphy v. Operating Engineers Local 18, 99 L.R.R.M. 2074 (N.D.Ohio 1978), there were several violent episodes, including beating of a dissident union member within fifteen feet of a group of union executive-board members and business agents by two of that group. Id. 2086. See also id. 2087-88 (other beatings). After a thorough analysis of relevant appellate decisions, id. 2111-14, Judge Lambros held that although the violence was actionable as a violation of plaintiff's substantive rights under LMRDA § 101(a)(1) and (2), 29 U.S.C. § 411(a)(1) and (2), 99 L.R.R.M. at 2114-15, it was not "discipline" within the meaning of § 101(a)(5), 29 U.S.C. § 411(a)(5). 99 L.R.R.M. at 2115.
Judge Lambros relied primarily on the definition of discipline in Miller v. Holden, 535 F.2d 912 (5th Cir. 1976). In Miller, the plaintiff charged that he was fired from a position in the union's education trust in retaliation for supporting an unsuccessful candidate for union office. Id. 913. The Miller court held that this was not "discipline," announcing a two-part definition of "discipline":
Union action which adversely affects a member is "discipline" only when (1) it is undertaken under color of the union's right to control the member's conduct in order to protect the interests of the union or its membership, and (2) it directly penalizes him in a way which separates him from comparable members in good standing.
Id. 915, quoted in Murphy, 99 L.R.R.M. at 2112; see 99 L.R.R.M. 2114 ("The Court finds the reasoning in Miller to be persuasive in the instant case and therefore adopts the definition of "discipline' set forth therein.") Although the violence in Murphy met the second prong of the Miller test, it was not "under color of the union's right to control the member's conduct," and therefore was not discipline. 99 L.R.R.M. at 2115.
The Murphy holding drew strong support from Phillips v. International Association of Bridge Workers, Local 118, 556 F.2d 939 (9th Cir. 1977). Phillips had held that malicious prosecution of a civil suit by a union against a member was not "discipline." Id. 941-42. The grounds for that decision were that the member would be accorded procedural due process in the civil suit, id. 941, and that close analysis of the language of § 101(a)(5) "suggests that "discipline' refers to punishment or adverse consequences that a union, operating through its own tribunal, can impose either by virtue of its relationship with or influence over the actions of the employer or potential employers of its members." Id. 941 (footnote omitted), quoted in Murphy, 99 L.R.R.M. at 2113. Because violence is not imposed by virtue of a union's authority over members or its relationship with employers, it is not discipline under the Phillips test.
We would be inclined to follow Murphy's thorough analysis without further ado, except that the Third Circuit has not decided this issue, and other authority could lead to the result that the violence in this case can be discipline. Particularly troubling is the line of analysis holding that punitive union action is "discipline" if it is intended to interfere with the substantive rights granted by LMRDA § 101(a)(1)-(4), 29 U.S.C. § 411(a)(1)-(4).
In Bradford v. Textile Workers Local 1093, 563 F.2d 1138 (4th Cir. 1977), plaintiff was removed from a union office, allegedly without notice of charges or notice of hearing. Id. 1139-40. Plaintiff alleged that this action was in retaliation for exercise of his § 101(a)(1) right to free speech. The court held that this comprised discipline within the meaning of LMRDA § 609, 29 U.S.C. § 529:
The very phraseology of the term itself "otherwise discipline," manifests the legislative purpose to give a broad and liberal construction to the term, and one which certainly would comprehend anything in the nature of retaliation for the exercise of free speech in "intra-union political" affairs.
Id. 1142 (footnote omitted) (emphasis added by Bradford court) (citing Morrissey v. National Maritime Union, 544 F.2d 19, 26 (2d Cir. 1976)). Although Bradford does not in terms apply to § 101(a)(5),
the Fourth Circuit's logic seems to apply equally well to that section. If applied in the instant case, Bradford implies that the violence would be a violation of § 101(a)(5) if plaintiff could prove his allegation that defendant acted in retaliation for exercise of Title I substantive rights.
This position may find support in the district courts of this circuit. In DeCampli v. Greeley, 293 F. Supp. 746 (D.N.J.1968), the court found in favor of a union business agent who had been discharged in retaliation for exercise of Title I rights. In Grove v. Glass Bottle Blowers Association, 329 F. Supp. 337 (W.D.Pa.1971), the court held that removal from union office did not trigger the procedural protections of § 101(a)(5). In reaching this position, Judge Weber distinguished DeCampli on the basis that the discharge in DeCampli was in reprisal for exercise of free-speech rights. See 329 F. Supp. at 338-39; 293 F. Supp. at 749. The implication is that an action which is not "discipline" can be converted to discipline by the actor's retaliatory intent.
Because of this conflict of authority, we undertake our own analysis. We start, of course, with the language of the statute. E.g., Reiter v. Sonotone Corp., 442 U.S. 330, 337, 99 S. Ct. 2326, 2330, 60 L. Ed. 2d 931 (1979); Mountain Brook Orchards, Inc. v. Marshall, 640 F.2d 454, 456 (3d Cir. 1981).
No member of any labor organization may be fined, suspended, expelled, or otherwise disciplined except for nonpayment of dues by such organization or by any officer thereof unless such member has been (A) served with written specific charges; (B) given a reasonable time to prepare his defense; (C) afforded a full and fair hearing.