The opinion of the court was delivered by: Mercer, District Judge.
The Court has given careful consideration to the extensive
briefs and arguments of counsel on defendant's motion to dismiss
This is the third complaint filed by these plaintiffs in this
Court, two having been filed in a previous suit in which motion
to dismiss was sustained. On appeal, this ruling was affirmed:
Anson v. Hiram Walker & Sons, Inc., 7 Cir., 222 F.2d 100,
certiorari denied, 350 U.S. 840, 76 S.Ct. 79, 100 L.Ed. 749.
The Court has had the advantage of the admirable and exhaustive
opinion rendered in the said case of Anson v. Hiram Walker &
Sons, Inc. The Court of Appeals held in the above case that it
was essential that plaintiffs show exhaustion of their statutory
The principal inquiry of this Court in passing upon the motion
to dismiss is to ascertain whether or not the present complaint
shows an exhaustion of statutory remedies, the said complaint
having been attacked for failure to make such showing. The Court
cannot attribute to the equivocal words of the complaint, any
connotation or implication that plaintiffs have attempted to
exhaust or have exhausted their remedies created by their
bargaining agreement for disposing of their grievances. If
plaintiffs have failed to allege an exhaustion of statutory
remedies then they are unable to present their case in court as
a justiciable controversy.
The only allegation of the complaint which attempts to allege
statutory remedies is a portion of paragraph 23 which, in
substance, alleges that these plaintiffs, on November 1, 1955,
filed charges of an unfair labor practice against the defendant
and their collective bargaining agent, the Union; that on
February 7, 1956, the plaintiffs were informed by the Regional
Director of the National Labor Relations Board that no unfair
labor practice within its jurisdiction was found; that an appeal
was made to the General Counsel of the National Labor Relations
Board and on April 6, 1956, the General Counsel upheld the
findings of the Regional Director.
The complaint discloses that the occurrences out of which this
suit arise took place on May 5, 1952. It is apparent that the
first steps taken by the plaintiffs to exhaust their statutory
remedies were taken over three years after the occurrences
complained of. Title 29 U.S.C.A. § 160(b), sets forth the
jurisdictional requirements as to the time for filing the
complaint and limits the time for filing a complaint, based upon
an unfair labor practice, to six months after the occurrence. It
is apparent that at the time of the filing of the complaint
herein that the Board then had no jurisdiction to entertain
plaintiffs' charges. In view of this circumstance it is the
opinion of the Court that the plaintiffs herein cannot be said to
have exhausted a remedy which by their own acts has been barred
by a statute on limitations. Breeland v. Southern Pacific Co., 9
Cir., 231 F.2d 576. The failure of the plaintiffs, therefore, to
allege exhaustion of their statutory remedies is fatal under the
opinion of the Court of Appeals rendered in Anson v. Hiram Walker
& Sons, Inc.
To invoke the jurisdiction of a court without pursuing their
remedies under the National Labor Relations Act is such a course
of action as to do violence to the whole tenor and purpose of
said Act and is violative of public policy enunciated by said
Although the failure to allege the exhaustion of statutory
remedies disposes of the matter it appears to the Court that
there is a further reason for granting the motion to dismiss.
This reason consists in the failure of plaintiffs to join as a
party their collective bargaining agent, Distillery Workers'
Union, Local No. 55, of Distillery Rectifying, Wine and Allied
Workers' International Union of America. The contract sued upon
is between the defendant and this Union. None of the plaintiffs
is a party thereto. The Union is the collective bargaining agent
for the plaintiffs and is charged by law with its administration
and interpretation on behalf of the members of the Union. It is
the opinion of this Court that in a suit brought to interpret and
enforce such a collective bargaining agreement, the Union is an
essential and indispensable party.
In the Labor Management Relations Act, Title 29 U.S.C.A. § 141
et seq., Congress has established machinery looking to the
peaceable settlement of all controversies regarding wages, rates
of pay, working hours, seniority and grievances as to all matters
growing out of employment and Congress prescribed an exclusive
remedy for settlement of all labor disputes. It has attempted to
substitute for physical or legal warfare, peaceful negotiation.
In the plan of Congress a designated Union becomes the exclusive
bargaining agent of the employees and its contract with the
employer governs the employees individual hiring contracts. To
effectuate the broad public policy enunciated in the Labor
Management Relations Act requires the bargaining agent as a
In view of the conclusions of the Court it is unnecessary to
consider the question raised by the defendant as to whether or
not this case is res adjudicata. It is therefore ordered and
adjudged that the defendant's motion to dismiss this action is
hereby allowed and the complaint herein is hereby dismissed.
Judgment is hereby entered in favor of the defendant, Hiram
Walker & Sons, Inc. That the plaintiffs take nothing by their
suit and that defendant recover its costs herein.
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