Duffy, Castle, and Kiley, Circuit Judges.
Defendants appeal from a summary judgment*fn1 which decided that plaintiffs were unlawfully expelled from membership in Local 134 for violation of a provision of the International Union's constitution, which the district court found invalid as violating the "Bill of Rights" of members of labor organizations in the Labor-Management Reporting and Disclosure Act (LMRDA) of 1959. Ryan v. International Brotherhood of Electrical Wkrs., 241 F. Supp. 489 (N.D. Ill. 1965). We affirm.
There is no controversy over the facts: Plaintiffs were pari-mutuel clerks employed at race tracks in the Chicago area and were members and officers of the Pari-Mutuel Clerks Unit of Local 134. In the summer of 1963 negotiations between a committee of the Unit and a representative of the track owners failed to reach a new bargaining agreement, and the Unit voted to strike.
In accordance with the International's constitution,*fn2 binding on all members of local unions, Local 134, on behalf of the Unit, sought, on August 14, 1963, permission of the International President to conduct the strike. Permission was denied on August 15, and the Local was remitted to the compulsory arbitration procedure of the existing agreement, over plaintiffs' objection that the agreement did not require the Local to arbitrate. Plaintiffs did not appeal this decision to the Executive Council or Convention, which is permitted by Section 13 of Article XVII. The Local submitted to arbitration, but plaintiffs on September 6, 1963 filed suit in the District Court for the Northern District of Illinois, seeking to enjoin the arbitration. That suit was dismissed on defendant's motion on October 18, 1963. In the meantime, charges were filed against plaintiffs with the Executive Board of the Local, resulting in their expulsion. They were given copies of the charges and notice of hearing, and accorded a full hearing with opportunity to defend, were found guilty and expelled from membership. Pursuant to the International constitution, plaintiffs appealed these decisions to the International Vice-President, and subsequently to the International President, who affirmed the expulsion decisions on March 30, 1964.
Plaintiffs were expelled because, by filing their suit of September 6, 1963, to enjoin the arbitration, they did not comply with Article XXVII, Section 1, of the International constitution, which provides:
Misconduct, Offenses and Penalties
Sec. 1. 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 [Local Unions], 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.
They filed this suit and the judgment before us followed.
The essence of the amended complaint is that it would take "a minimum of time far in excess of four months" to properly utilize the International's process of appeal, therefore making Article XXVII, Section 1, inconsistent with Section 101(a)(4) of the LMRDA of 1959, 29 U.S.C. § 411(a)(4), which provides in part:
(4) Protection of the right to sue. -- No labor organization shall limit the right of any member thereof to institute an action in any court, . . . irrespective of whether or not the labor organization or its officers are named as defendants or respondents in such action or proceeding, . . . 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 . . . proceedings against such organizations or any officer thereof . . . .
and that the constitutional provision is therefore void, under Section 101(b) of the LMRDA, 29 U.S.C. § 411 (b), which makes "any provision of the constitution and bylaws of any labor organization which is inconsistent with the provisions of this section . . . of no force and effect."*fn3
Thus, the issue for decision is, as it was for the district court, whether Article XXVII, Section 1 of the International constitution can properly be the basis for the union discipline here involved.
The district court held that Section 1 of Article XXVII 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." The court thought that the term "may be required" in the proviso of Section 101(a)(4) of the LMRDA implied that a suit could be brought in some circumstances (e.g., where the action complained of is "void") prior to the expiration of a four month period; that these justifying circumstances could be determined only by bringing suit to see if the court will ...