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Derling v. Ubaldi

Decided: January 8, 1960.

CLIFFORD J. DERLING, ET AL., PLAINTIFFS,
v.
SAM DI UBALDI, ET AL., DEFENDANTS



Scherer, J.s.c.

Scherer

[59 NJSuper Page 402] Defendants have renewed their motion for a summary judgment dismissing their amended complaint on the ground that the plaintiffs have failed to exhaust their remedies by appeal to the International Brotherhood of Electrical Workers (hereinafter called the "I.B.E.W.") prior to instituting this suit. Plaintiffs, who are members of Local Union No. 1470 of I.B.E.W. and defeated candidates for union office, charge irregularities in the election of officers in Local Union No. 1470, held June 27, 1959, and seek to set aside that election and to have a new one conducted

under court supervision. Defendants are the victorious candidates (individually and as such elected officers and representatives), as well as the person who supervised the election, members of Local Union No. 1470, I.B.E.W., Executive Committee of the Union, and the local itself. The International Union, an affiliate of the A.F. of L.-C.I.O., is not a party. Defendants claim that the I.B.E.W. constitution limits the remedy of the plaintiffs exclusively to an appeal to the I.B.E.W. itself, and that this remedy not having been exhausted or shown to be futile, illusory or vain, the present suit will not lie and should be dismissed. At the time the defendants made their original motion to strike the complaint prior to its amendment, I concluded that there was no evidence from which I could make a finding as to whether the plaintiffs did have a genuine right of appeal. Additional affidavits were filed on defendants' motion in the Appellate Division for leave to appeal. These have been considered by me in accordance with the opinion of that court dated October 13, 1959. The affidavits filed in that court, as well as the additional proof, have been considered by me in arriving at these conclusions.

The by-laws of Local Union No. 1470, in article XIII, section 13, provide that the I.B.E.W. constitution is made a part of the local by-laws. The applicable appeal provisions of the I.B.E.W. constitution are found in article XXVII, sections 13, 15, 16, 17, 18 and 19, which read as follows:

"APPEALS

Sec. 13. Any member who claims an injustice has been done him by any L.U. or trial board, or by any Railroad Council, may appeal to the I.V.P. any time within 30 days after the date of the action complained of. If the appeal is from an action of a railroad local union, or a Railroad Council, it must go to the I.V.P. in charge of railroad matters.

A copy of any appeal must be filed with the L.U., or with the Railroad Council, as the case may be.

Sec. 15. When a decision has been rendered by the I.V.P. it shall become effective immediately.

Sec. 16. No appeals from decisions of the I.V.P., or from the I.P., or from the I.E.C., shall be recognized unless the party or parties appealing have complied with the decision from which they have appealed.

Sec. 17. Appeals to the I.P. and to the I.E.C., and to the convention, to be considered, must be made within 30 days from the date of the decision appealed from. (Appeals to the I.E.C. and to conventions must be filed with the I.S.) If no appeal is made within 30 days from the date that any decision is rendered, such decision shall be considered final.

Sec. 18. Either party directly interested in a case may appeal.

Sec. 19. When an appeal is taken above the I.V.P., only the evidence submitted in the original case of ...


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