United States District Court, Central District of Illinois
May 1, 1980
HUBERT MAXWELL, HAROLD COLE, DWAINE SLYE, WILLIAM DITCH, DONALD RENNER, JAMES FOILES, ERICK NIEBISCH, RALPH VANNESTE, EDWARD WIERENGA, PLAINTIFFS,
UNITED AUTOMOBILE, AEROSPACE & AGRICULTURAL IMPLEMENT WORKERS(UAW), LOCAL NO. 1306, AND TERRANCE J. HAMILTON, PETER S. SIERRA, OF AMERICA ANTHONY DESMET, JOSEPH NUSSBERGER, DAVID GAUL, BUD W. RANSDELL, ALBERT GRUBER, GENE TAWNEY, FRANK SCHIBILLA, AND DON HAKEMAN, DEFENDANTS.
The opinion of the court was delivered by: Robert D. Morgan, Chief Judge.
DECISION AND ORDER
In this action nine members of Local 1306 of the United
Automobile, Aerospace & Agricultural Implement Workers of
America (UAW) are seeking declaratory and injunctive relief,
as well as compensatory and punitive damages, from UAW Local
1306 and ten individuals who are members or member-officials
of the Local. All plaintiffs and defendants have moved for
summary judgment pursuant to Rule 56, F.R.Civ.P. While
plaintiffs do not ask for summary judgment on the matter of
damages, based on this court's view that there exists no
genuine issue as to any material fact, the entire case may be,
and is, resolved through these motions.
In October 1978, ten members of Local 1306 (the nine current
plaintiffs and an additional former plaintiff who has
dismissed his complaint as to all defendants) authored a
letter*fn1 which expressed "concern over the implementation
of the contract in relation to walk outs and wildcat strikes."
Specifically, the letter is critical of the fact that no
disciplinary action was taken by anybody against individuals
involved in the walkouts and wildcat strikes. The letter
states that this lack of discipline has resulted in dissension
between employees who have worked and those who have walked
out. The letter is addressed to and was sent to the president
of International Harvester Co., the employer of the members of
Local 1306. The ten individuals all signed their names to the
Subsequently, other members of Local 1306 became aware of
the letter and the identities of the ten members who had
signed it. Around November 10, 1978, plaintiffs received
notice that charges of conduct unbecoming a union member were
being brought against them. Defendants admit that the letter
was the basis for these charges. On December 19, 1978, a
proceeding was held before the trial committee of Local 1306.
The trial committee consisted of defendants DeSmet,
Nussberger, Gaul, Ransdell, and Gruber. The manner in which
the trial committee was selected and the procedure it followed
were established by the UAW International and Local
constitutions. Five of the current plaintiffs were present for
this proceeding, where defendants Tawney, Schibilla, and
Hakeman, members of Local 1306, testified that plaintiffs'
letter was against the UAW International and Local
constitutions and damaging to members of the union. Defendants
Hamilton and Sierra are, respectively, the president and
recording secretary of Local 1306.
On January 18, 1979, plaintiffs were notified that the trial
committee had found them guilty of violating the UAW Ethical
Practices Code and would recommend $100 fines at the Local's
next membership meeting, and that failure to pay the fines
would result in plaintiffs' expulsion from the union. Without
any of the plaintiffs appearing at the Local membership
meeting on January 27, 1979, the recommendation of the trial
committee was approved and adopted. Plaintiffs, under protest,
tendered their $100 fines to the Local on February 27, 1979.
Plaintiffs allege that, in accord with the International's
constitution, they appealed within the Local on February 21,
1979. No action was taken by the Local pursuant to this appeal
and the Local claims that no appeal was in fact taken.
In April 1979 plaintiffs then attempted to appeal directly
to the International, as provided for in the International's
constitution. The International has stated, in letters dated
May 11, 1979, June 22, 1979, and October 17, 1979, that an
appeal to it is not perfected and cannot be handled unless and
until the appealing party furnishes his home address to the
International as part of his appeal. Plaintiffs have appealed
through their attorneys and have refused to furnish
their home addresses to the International. Consequently, no
action has been taken by the International in resolution of
plaintiffs' appeal. The International states that plaintiffs'
failure to furnish their home addresses is the sole reason for
this inaction. On July 2, 1979, plaintiffs filed their
complaint challenging the disciplinary action taken against
This complaint was brought under provisions of the
Labor-Management Reporting and Disclosure Act of 1959 (LMRDA),
29 U.S.C. § 411, 412, and 529. §§ 411 and 412 appear in
subchapter II of the LMRDA, which is titled the Bill of Rights
of Members of Labor Organizations. § 411 enumerates specific
rights which every member of any labor organization shall have,
including the rights to meet and assemble freely with other
members and to express any views, arguments, or opinions.
29 U.S.C. § 411(a)(2). § 412 provides for a civil action in
federal court by any person whose Bill of Rights of union
membership has been infringed. § 529 expressly prohibits
disciplinary action against union members for exercising any
right provided for in the LMRDA. The jurisdictional provisions
of § 412 are expressly made applicable to § 529.
The intent of Congress in establishing the Bill of Rights of
union members was to protect such members in their
relationships with their union. The statute attempts to insure
procedural due process to members subjected to union
discipline and generally provides for democratic processes in
the conduct of union affairs. NLRB v. Allis-Chalmers Mfg. Co.,
388 U.S. 175, 194, 87 S.Ct. 2001, 2013, 18 L.Ed.2d 1123 (1967).
However, it was not the intent of Congress, in passing the
LMRDA, to either weaken unions as collective bargaining agents
or unduly interfere in internal union affairs. Wirtz v. Bottle
Blowers Assn., 389 U.S. 463, 470, 88 S.Ct. 643, 647, 19 L.Ed.2d
Defendants assert that the court lacks jurisdiction over
this case by reason of plaintiffs' failure to exhaust their
intra-union remedies. § 411(a)(4), dealing with the protection
of the right of union members to sue, contains a proviso
requiring exhaustion of intra-union remedies before an action
is brought against the union or its officers. Express
limitations on this exhaustion requirement are that it only
applies to reasonable hearing procedures that do not exceed
four months in duration. Defendants argue that plaintiffs have
failed to appeal the decision of the Local to the International
in accord with the procedures in the UAW constitution. The
dispute in this regard concerns plaintiffs' refusal to supply
their home addresses to the International and the
International's refusal to process the appeal until the home
addresses are furnished.
The exhaustion requirement of § 411(a)(4) was considered at
length by the Second Circuit in 1961, after the passage of the
LMRDA in 1959. 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). From the recent legislative
history, the court in Detroy determined that the inclusion of
the exhaustion requirement in § 411 was intended "to preserve
the exhaustion doctrine as it had developed and would continue
to develop in the courts," 286 F.2d at 78. Relying on existing
exhaustion principles, the Detroy court held that after the
institution of an action in the courts, it is discretionary
with the court whether or not to require exhaustion of
intra-union remedies. This interpretation reflects the plain
meaning of the words of the statute, i.e., "may be required to
exhaust." Other courts that have reached the issue have adopted
this view as to the discretionary nature of § 411(a)(4)
exhaustion. Buzzard v. Local Lodge 1040, 480 F.2d 35, 41 (9th
Cir. 1973); Semancik v. United Mine Workers, 466 F.2d 144, 150
(3d Cir. 1972); Fulton Lodge No. 2 v. Nix, 415 F.2d 212, 216
(5th Cir. 1969); Simmons v. Avisco, 350 F.2d 1012, 1016
(4th Cir. 1965); NLRB v. Marine Workers, 391 U.S. 418, 426, 88
S.Ct. 1717, 1722, 20 L.Ed.2d 706 (dicta) (1968).
In determining the propriety of exercising its discretion to
not require exhaustion, courts should consider each case on
its own facts, Detroy, supra, and in light of the policies
underlying the exhaustion doctrine. The relevant policies were
stated in Detroy:
"The Congressionally approved policy of first
permitting unions to correct their own wrongs is
rooted in the desire to stimulate labor
organizations to take the initiative and
independently to establish honest and democratic
procedures. Other policies, as well, underlie the
exhaustion rule. The possibility that corrective
action within the union will render a member's
complaint moot suggests that, in the interest of
conserving judicial resources, no court step in
before the union is given its opportunity.
Moreover, courts may find valuable the assistance
provided by prior consideration of the issues by
appellate union tribunals." (citations omitted)
286 F.2d at 79.
Considering these policies, common law exhaustion principles,
and the factual circumstances of a particular case, courts
have developed exceptions to the exhaustion requirement.
Plaintiffs assert that the exception for void disciplinary
proceedings applies to the facts here. This voidness exception
arises when "the disciplinary action taken by the union
against a member was indisputably illegal or void." Keeffe
Bros. v. Teamsters Local 592, 562 F.2d 298, 303 (4th cir.
1977); Simmons v. Avisco, supra at 1016; Libutti v. DiBrizzi,
337 F.2d 216, 219 (2d Cir. 1964); Caravan v. Typographical
Union 36, 381 F. Supp. 14 (E.D.Pa. 1974); Eisman v. Clothing
Workers, 352 F. Supp. 429 (D.Md. 1972).*fn2 The meaning of the
term void in this context was addressed in Libutti, supra:
"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. 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." (citation
omitted) 337 F.2d at 219.
Defendants admit that the basis of the disciplinary action
in this case was plaintiffs' letter. The express allegations
in this letter, as applicable here, are that no disciplinary
action was instituted by anybody, including the leadership of
Local 1306, against union members who violated the union
contract with International Harvester. The clear import of the
letter, so far as the Union is concerned, must be criticism of
the Local leadership. The resulting disciplinary action served
to directly inhibit such criticism. These easily-determined
facts indicate that there has been a serious violation of the
plaintiffs' rights; i.e., the disciplinary action was void.
This apparent violation is sufficient, at the very least, to
excuse plaintiffs from further exhaustion of intra-union
While the voidness exception alone provides a sufficient
basis for not requiring further exhaustion in this case, there
are two factors that lend additional support to this result.
Exhaustion may not be required when the intra-union remedies
futile, illusory, or inadequate,*fn3 or when the complaint
alleges a violation of free speech rights.*fn4
On the facts here, it clearly appears that the intra-union
procedures are inadequate. While defendants claim that
plaintiffs' appeal to the International is still alive, the
undisputed facts create very substantial doubt as to the true
viability of the appeal. It has been over seventeen months
since the initiation of disciplinary action against
plaintiffs, and yet the internal union processes have not
resolved the dispute.*fn5
When the claimed violation involves free speech, the courts
recognize the central role played by this right in the
democratic union system envisaged by Congress in the LMRDA.
Any chilling of free speech necessarily results in a
constriction of the full flow of ideas, opinions, and
criticism, essential ingredients in the operation of a
democratic organization. Courts recognize that appellate union
tribunals have no greater expertise than the courts in
evaluating free speech issues. Consequently, prior
consideration by the union's appellate system would not
significantly aid the court in its resolution of the issues.
For these reasons courts are willing to intervene at an early
stage in order to protect free speech rights.
From a balancing of the competing policies, on this factual
situation it is clear that this court, in the proper exercise
of its discretion, should not require plaintiffs to further
exhaust intra-union remedies. The prime considerations in
reaching this conclusion are the apparently void nature of the
union's action, the inadequacy of the intra-union remedies in
this case, and the involvement of free speech rights.
The ten individual defendants assert that they are not
proper defendants in this action. The basis of this argument
is that §§ 411-414 of the LMRDA only deal with labor
organizations and make no mention of suits against individuals.
Additionally, defendants state that there are no allegations in
the complaint that these individuals were acting as agents or
officers of the defendant Local.
These same contentions were rejected in Morrissey v. National
Maritime Union, 544 F.2d 19 (2d Cir. 1976), where the court
"We find equally little merit in the argument
that only the Union can be liable for a violation
of § 411(a)(2). The civil remedy for a violation of
Title I rights is provided in § 412. Nothing in its
language indicates that only a labor organization
may be sued and the second sentence, which
specifies a venue provision for "[a]ny such action
against a labor organization", implicitly
recognizes that suits may be brought against
others. The few cases on the point have held that §
412 extends to suits against individual defendants,
at least if it is shown that they were acting under
color of union authority. Vincent v. Plumbers &
Steam-fitters Local No. 198, 384 F. Supp. 1379, 1384
(M.D.La. 1974); Eisman v. Baltimore Regional Joint
Bd. of Amal. Clothing Wkrs., 352 F. Supp. 429, 437
(D.Md. 1972), aff'd, 496 F.2d 1313 (4 Cir. 1974);
Talavera v. International Bro. of Teamsters,
351 F. Supp. 155 (N.D.Cal. 1972). Given the Act's intent
to curb the power of overweening union officials,
this is clearly the right result." 544 F.2d at 24.
This holding was recently reaffirmed by the Second Circuit in
Rosario v. Garment Union, 605 F.2d 1228
, 1246 (2d Cir. 1979),
and followed by the Fifth Circuit in Keene v.
Operating Engineers, 569 F.2d 1375
, 1381 (5th Cir. 1978).
Additionally, in Rosario, supra at 1246, it was stated that the
liability of union officials is not limited to acts done within
the scope of their union authority. The intent of the LMRDA was
to curb the power of overweening union officials generally,
including abuse of their positions or inducement of other
officials to do so.
Applying the foregoing principles, defendants Hamilton and
Sierra, officers of the Local, and defendants DeSmet,
Nussberger, Gaul, Ransdell, and Gruber, members of the trial
committee, are all proper defendants, in that their actions
were under color of union authority and were proximately
related to the alleged violations of plaintiffs' rights.
However, defendants' motion for summary judgment must be
granted as to Tawney, Schibilla, and Hakeman. These
individuals held no official positions in the Local generally
or with respect to the proceedings against plaintiffs. The
only alleged actions by these individuals was their giving
testimony before the trial committee. This giving of opinion
testimony by union members who held no official union
positions, without more, is an insufficient basis upon which
to premise liability.
The court does recognize that plaintiffs brought this action
pursuant to § 529, in addition to §§ 411 and 412. The
prohibition on improper discipline in § 529 extends to any
labor organization, or any officer, agent, shop steward, or
other representative of a labor organization, or any employee
thereof. This provision encompasses the positions held by
Hamilton, Sierra, and the trial committee members. Plaintiffs
have not presented evidence that defendants Tawney, Schibilla,
or Hakeman come within the classifications of § 529.
The landmark case in establishing the viability and breadth
of the LMRDA's Bill of Rights for members of labor
organizations was Salzhandler v. Caputo, 316 F.2d 445 (2d Cir.
1963), where the court stated:
"The LMRDA of 1959 was designed to protect the
rights of union members to discuss freely and
criticize the management of their unions and the
conduct of their officers. The legislative
history and the extensive hearings which preceded
the enactment of the statute abundantly evidence
the intention of the Congress to prevent union
officials from using their disciplinary powers to
silence criticism and punish those who dare to
question and complain. The statute is clear and
explicit." 316 F.2d at 448.
The plaintiffs' letter here comes squarely within the ambit of
what Congress wanted to protect through the LMRDA's Bill of
Rights. The aim of these provisions was to provide for the
democratic functioning of unions by abolishing autocratic
practices. By mandating the full panoply of freedoms
associated with democratic processes, Congress wanted to
insure a free flow of ideas, however unpopular or outspoken,
so that the individual union members could make free and
The propriety, value, and effects of wildcat strikes and
walkouts were undoubtedly major issues confronting Local 1306
at the time plaintiffs wrote their letter. It is in such
situations when emotions and feelings are strong and
differences of opinion great, that free speech must be
protected. By insuring free expression in the unpopular case,
our nation seeks to prevent its deterioration into a
talismanic symbol lacking substantive effect.
Defendants claim that the disciplining of plaintiffs for
violating the UAW Ethical Practices Code is justified under
the two express exceptions to free speech rights which appear
in § 411(a)(2). Unions have a right to adopt and enforce
reasonable rules as "to the responsibility of every member
toward the organization as an institution," and as "to his
refraining from conduct that would interfere with its
performance of its legal or contractual obligations." From an
analysis of the legislative history of § 411(a)(2), the court
in Salzhandler concluded that Congress only intended that there
be these two express restrictions on
§ 411(a)'s rights of free expression. By thus limiting the
restrictions, unions would be unable to circumvent the
enforcement of these rights through the ad hoc application of a
myriad of restraints.
The essence of plaintiffs' letter is criticism of the
policies of the current leadership of Local 1306. It is not
the function of this court to examine the substance of this
criticism. Our examination is limited to a determination of
whether the disciplining of plaintiffs was justified under
either of the two exceptions of § 411(a)(2). Defendants cite
UAW Ethical Practices Code, Democratic Practices, page 96,
paragraph one,*fn6 as the rule which plaintiffs violated. This
paragraph is substantially a reflection of § 411(a)(2) and
generally recites broad principles rather than specific rules
of conduct. It is not readily apparent how plaintiffs' conduct
actually violated these provisions. In fact, it would appear
that the UAW Code would protect rather than condemn plaintiffs'
action. Under Boilermakers v. Hardeman, 401 U.S. 233, 242, 91
S.Ct. 609, 615, 28 L.Ed.2d 10 (1971), this court is restrained
from interpreting union regulations. Consequently, the court's
holding is based upon the guarantees of § 411, rather than an
interpretation of the UAW code.
It does not appear that plaintiffs' actions harmed the union
as an institution within the meaning of § 411(a)(2). Most cases
dealing with this restriction involve dual unionism. In our
case plaintiffs did not advocate the abolishment of the union
or a union schism. One of the concerns expressed in plaintiffs'
letter is the lack of unity among union members. It states that
divisions have been created among the members because of the
lack of discipline. The plaintiffs, rather than advocating the
destruction of the union, appear to have been concerned with
its unity and effectiveness as a representative of all of its
Neither did plaintiffs' conduct interfere with the union's
contractual obligations, the second restriction allowed by
§ 411(a)(2). The prime concern of the letter was that these
obligations were not being fulfilled. Interference with the
union's contractual obligations would have existed if
plaintiffs had taken the exact opposite position, i.e., support
for wildcat strikes. Defendants have not argued that the
sending of the letter to International Harvester, the employer
with whom Local 1306 dealt, in any way interfered with the
union's contractual obligations. In fact, there is no
indication whatsoever of any such contractual interference as a
result of plaintiffs' actions.
Consequently, the disciplining of plaintiffs on these facts
was a clear violation of the rights of free expression
guaranteed to union members under § 411. Under the material
undisputed facts, plaintiffs are entitled to summary judgment
of liability by the remaining defendants.
Under § 412, the court has authority to grant "such relief as
may be appropriate." In their complaint plaintiffs seek
declaratory and injunctive relief, compensatory and punitive
damages, and attorney fees. Plaintiffs assert that there remain
genuine issues of fact with respect to their actual damages,
while defendants claim that the only possible damages to which
plaintiffs could be entitled are the amount of their fines and
Based on the court's holding that defendants violated rights
guaranteed to plaintiffs by § 411, plaintiffs are clearly
entitled to recover the amount of their fines, with interest.
In addition, plaintiffs are entitled to reasonable attorney
fees and costs, both for this action and the disciplinary
proceedings before the union. Attorney fees for both
proceedings are justified by reason of the benefits to the
union, and union members from the vindication by plaintiffs of
their rights of free expression. Hall v. Cole, 412 U.S. 1, 93
S.Ct. 1943, 36 L.Ed.2d 702 (1973).
Based on the absence of any indications that these
plaintiffs are threatened in the future by similar discipline
from these defendants, the court, in the exercise of its
discretion, believes permanent injunctive relief is
inappropriate at this time.
There is a split in authority on the availability of
punitive damages under § 412. The better view, in light of the
Congressional policies behind the LMRDA, appears to be that
punitive damages are recoverable upon proof of either actual
malice or reckless or wanton indifference to the rights of the
plaintiff. Morrisey v. Maritime Union, supra. Boilermakers v.
Braswell, 388 F.2d 193 (5th Cir. 1968), cert. denied,
391 U.S. 935, 88 S.Ct. 1848, 20 L.Ed.2d 854 (1968). The facts do not
show any actual malice by defendants; however, the clear nature
of the violation of plaintiffs' rights and the vital importance
of these rights does demonstrate a reckless indifference on the
part of defendants to the rights of the plaintiffs.
Consequently, as punitive damages, each plaintiff is awarded
the amount of $500 from the defendants, jointly.
Other than the amounts of the fines paid and attorney fees,
the plaintiffs have failed to demonstrate beyond mere
speculation the existence of any actual damages proximately
caused by the improper discipline. In response to defendants'
motion for summary judgment on the issue of actual damages,
which is supported by plaintiffs' own deposition testimony,
plaintiffs have presented nothing beyond the general
allegations in the complaint. Consequently, applying Rule
56(e), F.R.Civ.P., defendants are entitled to summary judgment
with respect to actual damages, beyond the amount of the fines
and reasonable attorney fees. Counsel for plaintiffs may file
a claim, supported by affidavit, on the matter of attorney
Accordingly, IT IS ORDERED that Plaintiffs' and Defendants'
Motions for Summary Judgment are in part GRANTED and DENIED,
as indicated hereinabove, and judgments will enter herein in
accordance with the terms of this decision.
International Harvester Co.
Dept. # 20
East Moline, Illinois 61244
Mr. Archie R. McCardell
President & Chief Operation Office
International Harvester Co.
401 No. Michigan Avenue
Chicago, Illinois 60611
We the undersigned wish to show our concern over the
implementation of the contract in relation to walk outs and
wildcat strikes. Those of us who have worked during one or
both of these walkouts that have occurred recently feel that
ours is a lost cause. Formerly when disciplinary action was
taken it served to cool off those who have been instrumental
in these walk outs. Now that no discipline is being taken
these people feel that they have showed the company that they
are above reproach and they have won. The division in our
department is very pronounced. This situation gives us the
feeling that we are the ones who have been wrong and with no
discipline handed out why should we come in to work.
Two walk outs have taken place as of this writing. When will
the third take place, and will the same situation prevail as
to the discipline of these people involved? Will those people
who wish to observe the contract and work be ostracized as
they have in the past two strikes?
The notice we are sending you is an unsigned copy of the
notice placed on the bulletin board as of the second of
This is a confidential letter and we wish not to have this
being passed around and into the hands of the wrong people as
things are bad enough without making them any worse.
We would appreciate an answer from you. Send it to any of the
men listed below. Thank you.
/s/ Harold E. Cole /s/ Dwaine W. Slye
/s/ James E. Foiles /s/ Edward Wierenga
/s/ William H. Ditch /s/ Albert J. Diemolien
/s/ Erick Niebisch /s/ Raphael J. Vanneste
/s/ Hubert Maxwell /s/ Donald M. Renner
UAW Ethical Practices Code, Democratic Practices
The democratic principles which have always governed the
International Union, UAW, and its Local Unions are:
1. Each member shall be entitled to a full share in Union
self-government. Each member shall have full freedom of speech
and the right to participate in the democratic decisions of
the Union. Subject to reasonable rules and regulations, each
member shall have the right to run for office, to nominate and
to vote in free, fair and honest elections. In a democratic
union, as in a democratic society, every member has certain
rights but he also must accept certain corresponding
obligations. Each member shall have the right freely to
criticize the policies and personalities of Union officials;
however, this does not include the right to undermine the
Union as an institution; to vilify other members of the Union
and its elected officials or to carry on activities with
complete disregard of the rights of other members and the
interests of the Union; to subvert the Union in collective
bargaining, or to advocate or engage in dual unionism.