United States District Court, Northern District of Illinois, E. D
May 7, 1965
JOHN J. RYAN ET AL., PLAINTIFFS,
INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, ETC., ET AL., DEFENDANTS.
The opinion of the court was delivered by: Decker, District Judge.
This suit, for an injunction and damages, is being brought
by three former members of the International Brotherhood of
Electrical Workers (I. B. E. W.), Local Union #134 of the
International Brotherhood of Electrical Workers (Local 134)
and several individuals in their official capacities with
either the I. B. E. W. or Local 134.
The complaint alleges that the plaintiffs were expelled from
the I. B. E. W. and Local 134 in a manner which violates the
plaintiffs' rights under Section 102 of the Labor-Management
Reporting and Disclosure Act of 1959, Public Law 86-257,
29 U.S.C. § 401, 402, 411 and 412. As alleged, the basis for the
expulsions was violation of Article XXVII,
Section 1 of the I. B. E. W. Constitution, which is a part of
the by-laws of Local 134; this Article reads as follows:
"Any member resorting to the courts for redress
for any injustice which he may believe has been
done him by the I. B. E. W. or any of its L.U.'s,
must first make use of the process available to
him, including any appeal or appeals from any
decision against him, which may be open to him
within the I. B. E. W. and, failing to do so, he
shall stand automatically expelled and without
rights of any kind."
The plaintiffs allege that Article XXVII, Section 1,
violates their rights under 29 U.S.C. § 411(a)(4), which
provides, in part, the following:
"No labor organization shall limit the right of
any member thereof to institute an action in any
court * * *: 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 * * *."
29 U.S.C. § 411(b) provides:
"Any provision of the constitution and bylaws of
any labor organization which is inconsistent with
the provisions of this section shall be of no
force or effect."
The defendants have moved to dismiss the complaint. The
plaintiffs have moved for summary judgment on the issue of
liability. The undisputed facts upon which this action is
based are set forth in the affidavit of Russell H. Olson,
Assistant to the President of the defendant I. B. E. W., these
facts are the following:
1. Plaintiffs were pari-mutuel clerks working at race tracks
in the Chicago area; they were officers and members of the
Pari-mutuel Clerks Unit of Local Union 134, I. B. E. W.
2. In the summer of 1963, a negotiation committee from the
Pari-mutuel Clerks Unit was attempting to negotiate a new
agreement with a representative of the race track owners.
3. By a vote of its membership, the local unit rejected the
proposals made by the representative and, finally, voted to
4. On August 14, 1963, in accordance with the I. B. E. W.'s
constitution, the local unit sought the permission of the
International President to strike; this permission was denied
on August 15, 1963.
5. At the same time, it was determined that the local was
required to submit to compulsory arbitration, as provided in
the existing collective bargaining agreement. The plaintiffs
contended that the existing agreement did not require the
local to arbitrate. This contention was made to, and was
denied by, the parent union, the International Vice President
of the Sixth District, and the International President.
6. On September 6, 1963, as the local was being engaged in
compulsory arbitration, the plaintiffs filed their suit in the
District Court for the Northern District of Illinois against
Local 134 and its officers. This suit asked that the Court
enjoin the defendants from proceeding with the arbitration,
which the plaintiffs claimed was unauthorized. Judge Perry
considered the complaint and dismissed it on defendants'
7. In their appeals from the decision of expulsion, the
plaintiffs stated to the International President that, if they
had gone through all of the appellate procedures of the local
union and of the I. B. E. W. before bringing the suit for an
injunction, then the arbitration would have ended and a new
contract would have been formed.
8. The plaintiffs were expelled from the Union for violating
Article XXVII, Section 1, of the International Constitution
after hearings were conducted by the Executive Board of the
Local Union. The expulsions were affirmed upon appeals to the
International Vice President and to the International
The issue before the Court is the validity of Article XXVII,
Section 1. The plaintiffs take the position that the Article
cannot be the basis for their expulsion from the Union because
it violates their rights under 29 U.S.C. § 401 et seq. The
defendants have moved to dismiss the complaint, arguing that
the Article is valid; therefore, pleading expulsion under
Article XXVII, Section 1, does not state a claim upon which
relief could be granted. F.R.Civ.P. 12(b)(6).
The defendants contend that Article XXVII, Section 1, when
read in conjunction with the statute, requires the plaintiff
to exhaust their internal union remedies for four months only;
that the union rule is invalid only insofar as it can be
violated by an extra-union proceeding after the four month
period. On this basis, the defendants contend that Article
XXVII, Section 1, is a valid and enforceable regulation.
On the other hand, the plaintiffs argue that Article XXVII,
Section 1, is wholly invalid because, by its terms, it
requires the plaintiffs to exhaust all of their internal
remedies without limiting the time to four months. The
plaintiffs contend that, since Article XXVII, Section 1, has
not been amended so that it fits within the statutory language,
the violation of a void by-law cannot be the basis for their
I have examined the statute, the legislative history, and
the cases, and am of the opinion that Article XXVII, Section
1, cannot be the basis for the expulsion of a member and is
invalid; however, my reasons are other than those presented by
29 U.S.C. § 411 is known as the "Bill of Rights." The purpose
of this legislation is apparent: to protect certain rights of
union members by providing the member with access to the courts
for the redress of a violation of the rights which are secured.
See 29 U.S.C. § 412. Nevertheless, it was thought appropriate
to give the union a chance, through internal procedures, to
resolve its own problems. See 2 NLRB, Legislative History of
the Labor-Management Reporting and Disclosure Act of 1959, page
1432 (Statement by Senator John F. Kennedy). Therefore,
although one of the "rights" which the union member gained in
Section 412 is the right to seek extra-union relief, that right
is not absolute.
The four-month period is not an unvarying jurisdictional
limitation. The statute says that the union member
"may be required to exhaust * * *" internal remedies. (Emphasis
added.) Situations can arise when the union member will be
allowed to bring suit prior to the expiration of a four-month
period; as Chief Judge Lumbard said, in Libutti v. Di Brizzi,
337 F.2d 216 (2d Cir. 1964):
"Section 101(a)(4) expressly incorporates the
common law principle that a dispute between a
union or other private association and one of its
members should in general first be submitted to
the association's own tribunals. But neither at
common law nor under § 101 is this principle
absolute, Detroy v. American Guild of Variety
Artists, 286 F.2d 75 (2 Cir.), cert. denied,
366 U.S. 929, 81 S.Ct. 1650, 6 L.Ed.2d 388 (1961), and
included among the traditional exceptions is the
situation in which the action complained of is
`void.' Shapiro v. Gehlman, 244 App. Div. 238, 278
N.Y.S. 785 (1935); Summers, Legal Limitations on
Union Discipline, 64 Harv. L.Rev. 1049, 1089
"Voidness is an elastic concept. Because it is
tied up with the merits of the claim, its
indiscriminate application could reduce the
exhaustion requirement to the tautology that a
plaintiff can find present relief in the courts
only if his claim has legal merit. See Summers,
op. cit. supra, at 1091. That this is a danger,
however, does not mean that it is an inevitable
result of applying the exception. When conceded
or easily determined facts show a serious
violation of the plaintiff's
rights, the reasons for requiring exhaustion are
absent: the commitment of judicial resources is
not great; the risk of misconstruing procedures
unfamiliar to the court is slight; a sufficient
remedy given by the union tribunal would have to
approximate that offered by the court. Where, as
in this case, conceded facts show a serious
violation of a fundamental right, we hold that
plaintiffs need not exhaust their union
remedies." 337 F.2d 216, 219.
See also, Detroy v. American Guild of Variety Artists,
286 F.2d 75 (2d Cir. 1961), cert. denied, 366 U.S. 929, 81 S.Ct.
1650, 6 L.Ed.2d 388 (1961); Harris v. International
Longshoremen's Ass'n, Local No. 1291, 321 F.2d 801, 806 (3d
The decision whether the union member must exhaust his
internal union remedies is not made by the union:
"It is for the court to determine, in the exercise
of some discretion, whether or not the proviso is
to be invoked." Burris v. International Brotherhood
of Teamsters, etc., 224 F. Supp. 277, 280 (W.D.N.C.
1963) (emphasis in original).
See also, Detroy v. American Guild of Variety Artists, supra,
286 F.2d at 78; Libutti v. Di Brizzi, supra, 337 F.2d at 219.
According to the words of the statute, the statute's
purpose, and the cases, the court may allow a suit within four
months in some circumstances. The only way a union member can
discover whether the court will take his case is to file an
action in the court. A union rule that requires members to
avail themselves of internal procedure for four months would be
valid; however, when the rule also provides for automatic
expulsion in the event of violation, the member would be
arbitrarily penalized for trying to obtain relief which the
court might consider to be within the statute.
It would be contrary to the purposes of this enactment if a
union were allowed to expel a member who is attempting only to
take advantage of the rights secured for him by Congress. In
most cases where there are union procedures, the member will
be remitted to those remedies for four months; however, it was
not the intention of Congress that the member be foreclosed
from seeking judicial assistance, which may be allowed in the
Pursuant to 29 U.S.C. § 411(b), I hold that Article XXVII,
Section 1, of the I. B. E. W. Constitution. is of no force or
effect to the extent that it provides for the expulsion of a
member because he brings a suit in court.
Considering the undisputed facts in this case, it appears
that the plaintiffs were expelled from the union solely
because they filed a suit in the District Court on September
Upon this finding and for the reasons stated above, it is
hereby ordered that the plaintiffs' motion for summary
judgment as to liability is granted and that the defendants'
motion to dismiss the complaint is denied; it is further
ordered that a hearing regarding the relief that plaintiffs
request be held on May 21, 1965, at 2:00 p. m.
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