The following facts were also established:
(1) Chieco has honored no transfer requests since he has been financial secretary of Local 483.
(2) Templeton met with plaintiffs at the Paterson Elks Club in 1963 and informed them that Local 483 would not honor their transfer requests at that time but that they might be given consideration at a later time.
(3) Lyons, President of the International, was aware of the letters sent by plaintiffs to the International.
The case of Hughes v. Local No. 11 of International Association of Bridge, etc., 3 Cir., 287 F.2d 810 (1961), appears to be controlling as to jurisdiction in the situation presented by the present action. As restated by the 3rd Circuit Court of Appeals in Tomko v. Hilbert, 3 Cir., 288 F.2d 625, the Hughes case 'held that an action did lie under the LMRDA against a union for its refusal to accept a transfer of membership from another local of the same international.'
The District Court in the Hughes case 183 F.Supp. 552) had dismissed the complaint, holding that plaintiff was not entitled to the equal rights of members guaranteed by Section 101(a)(1) of the LMRDA (29 U.S.C.A. § 411(a)(1)) since he was not a 'member' of Local 11. The 3rd Circuit, in reversing on appeal, held that 'member' as defined in Section 3(o) of the LMRDA (29 U.S.C.A. § 402(o)) includes any one who meets all of the requirements for membership. In that case these requirements were sufficiently met for the purpose of the appeal by plaintiff's allegations that all of the requirements for membership in Local 11 were contained in the constitution of the International, that he complied with all these requirements, and, moreover, that Local 11 was required by the International's constitution to admit him into membership.
Although the Hughes case was decided on the basis of the pleadings and from affidavits filed in the court below, and the court did not determine what the requirements for membership in Local 11 were, nor whether the four-month exhaustion requirement had been satisfied, nevertheless the following facts were before the court: (the significance of these facts to the present action will become apparent hereinafter).
(1) Plaintiff was a member of Local 489 in Scranton.
(2) He moved from Scranton to New Jersey in 1951 and since that date performed work within the jurisdiction of Local 11 with that Local's knowledge and consent.
(3) About October 1957 he requested a transfer from Local 489 to Local 11.
(4) He attempted to surrender his membership book to Local 11 and attempted to effect his transfer by appeals both to it and to the International.
The contentions of the defendant represent an attempt to avoid, in the present action, the rules of law set forth in the Hughes case and others to be cited. Each defense will now be separately considered, in turn.
A. Exhaustion of Intra-Union Hearing Procedures
Section 101(a)(4) of the LMRDA (29 U.S.C.A. § 411(a)(4)) provides that:
'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 * * *' This section was considered by the 3rd Circuit Court of Appeals in Sheridan v. United Brotherhood of Carpenters, etc., 306 F.2d 152 (1962), with differing conclusions being reached in concurring and dissenting opinions. It was again considered by this court in Harris v. International Longshoremen's Asso., Local 1291, 3 Cir., 321 F.2d 801. These cases indicate that the plaintiffs herein have sufficiently exhausted their intra-union remedies.
After previous requests for transfers had been denied, all of the plaintiffs, on May 23, 1960, tendered remittances and their paid-up membership books to William Chieco, Financial Secretary of Local 483, by registered mail, again requesting transfers. Their letter was returned unopened, having been refused by the addressee. Subsequently they tendered their books and remittances to James R. Downes, General Secretary of the International, along with documentary proof of their attempt to secure transfers from Chieco. This was done by registered mail on May 26, 1960 and transfers procured through International headquarters, as provided for in the International constitution, were requested. Subsequently each of the plaintiffs wrote to J. H. Lyons, General President of the International, or to Downes, asking that the International effect their transfers.
Chieco admitted that he refused to accept the plaintiffs' books and that there had been no transfers honored by defendant Local since he had been financial secretary.
John D. Templeton, Jr., Business Agent of defendant Local, testified that he told the plaintiffs, at a meeting in 1963 at the Paterson Elks Club, that the Local 'is not in a frame of mind to do anything for anybody' but that if there were a relaxation he would try to see that they were given consideration. He also testified that in October 1960 International President Lyons stated that he considered the letters from plaintiffs 'nothing but a nuisance.'
If plaintiffs met the prerequisites for their requested transfers, then Article XX, Sections 30 through 35, of the International constitution made the issuance of such transfers mandatory. Article XIX, Section 10, permits charges to be brought against any local, officer or member for violation of any provision of the constitution. Such charges are to be 'in writing and filed in duplicate with the General President.'
The letter to Downes of May 26, 1960, and subsequent letters to Lyons, constitute charges sufficient to meet adequately the exhaustion requirements of the LMRDA as set forth in the Sheridan and Harris cases. In Sheridan an informal letter which was 'substantially an appeal' was considered an appeal to the General President. A requirement in the constitution that an appeal be notarized was considered 'minor' and 'waived' since 'There is no evidence of attempt to evade or avoid that required notarization; no evidence that it was not overlooked; no evidence that it would not have been readily attended to on notice of the omission.' Similarly in the present action the requirement of two copies is minor and was waived.
Charges filed with the General President would be heard by the General Executive Board (of which he is a member) if in his opinion they justify a trial. (Art. XIX, Section 10). Since correspondence intended for this Board is to be addressed to the General Secretary, charges filed with the General Secretary constitute substantial compliance with the requirement of filing with the General President. Moreover, Templeton testified that President Lyons, in 1960, was cognizant of the letters from plaintiffs.
The Harris case states that 'it is not necessary for a member who intends to institute legal proceedings against the union or one of its officers to proceed through any intermediate appellate agency.' Thus, the plaintiffs were not required to pursue whatever intra-union appellate procedures there may be beyond the filing of charges with the General President.
The Harris case also holds that intraunion remedies must be pursued for four months only if 'there is likelihood that some decision will be forthcoming within the four-month period, and the aggrieved member has not shown that he will be harmed by being required to seek such a decision.' It further indicates that intra-union remedies need not be pursued if to do so would have been futile.
While this court finds that the plaintiffs in the present action have pursued their remedies within the union for the requisite period, it is also convinced from the evidence adduced at trial that any further such efforts on the part of the plaintiffs would have been futile.
In view of the previous finding, it is not necessary for this court to determine whether the intra-union hearing procedures set forth in the International constitution are 'reasonable' as required by the LMRDA.
B. Failure to join the International in the present action
Defendant Local 483 asserts, on the basis of Nix v. Spector Freight System, D.C., 157 F.Supp. 10, that the International is an indispensable party to the present action and that its nonjoinder is fatal to the prosecution of the present action.
In the Nix case Judge Wortendyke held that a suit by employees against their employer to enforce seniority rights claimed under contracts negotiated by a union, which was accused of conspiring with the employer to give seniority preference to other employees, made the union an indispensable party. The court found that any decree it might render as between the parties before it 'would necessarily have an injurious effect upon the Union's interest.'
The Nix case is inapposite to the present action. Here the relief sought can be provided by the local alone without involving the International at all. The International has no connection with the present action other than with respect to plaintiffs' showing that they had sufficiently exhausted available intra-union remedies.
In the Hughes case, supra, the Court of Appeals held the complaint therein to be sufficient despite the fact that the International was not joined as a party. Although the 'indispensable party' argument was not discussed, provisions of the International constitution permitting applications to the International for transfer and allegations by plaintiff of appeals to the International were considered.
C. Plaintiffs' qualifications to seek transfers
Defendant Local 483 considers as its 'basic meritorious defense' the contention that plaintiffs are not qualified to seek transfers into the defendant Local. Sections 30, 32, 33 and 35 of Article XX of the International constitution provide for transfer of members who have fulfilled the 'requirements' for such transfer. The only 'requirement' which defendant can find is a provision in Section 31, Article XX, which allegedly requires that a member tender his book 'when coming into the jurisdiction.' Defendant asserts that this requirement has not been met by any of the plaintiffs since at least five years passed between the time they came into the jurisdiction and the time they formally mailed their books to Chieco requesting transfers.
Plaintiffs, however, testified to numerous requests for transfer prior to 1960. Any requirement of immediate tender was never pointed out to the plaintiffs. Moreover, at the Elks Club meeting Templeton told the plaintiffs that if a 'relaxation' developed in the Local's 'frame of mind' the plaintiffs' transfer requests would be given consideration. Templeton therefore believed any such requirement to be waivable and if such requirement did exist, this court would find that it was waived.
However, it is the view of this court that defendant Local 483 is misconstruing the International constitution. Section 31, Article XX, states that 'a member in good standing when coming into the jurisdiction of any local union, shall tender to the Secretary, Business Agent or proper officer of such local union, his membership book * * *.' This simply requires that the member be in good standing when coming into the jurisdiction. The 'when coming' phrase is separated by a comma from the 'shall tender' phrase while it is immediately adjacent the 'good standing' phrase and seems logically to belong with the 'good standing' phrase.
This interpretation is strengthened by Section 32, Article XX, which requires that 'Any member who goes into the jurisdiction of any local union to work and fails to immediately notify in person or by mail the financial secretary of such local union that he is in their jurisdiction, shall be fined the sum of $ 50.00 plus $ 2.00, for each 15-day period said member has worked in such jurisdiction * * *.' Thus when a member is here required to take certain steps upon going into the jurisdiction, they are required to be taken 'immediately' and a specific fine is imposed for not doing so.
Furthermore, to interpret Section 31 as defendant requests would impose an undue hardship upon members in good standing who do not tender their books immediately upon coming into the jurisdiction. As pointed out by the defendant, they often travel from location to location without intending to transfer their memberships whenever they move and consequently may decide to take up permanent residence in an area only after working there for a considerable period of time.
In the Hughes case cited above, the court had before it sections of the International constitution relevant to the present situation (the present action involves another local of the same International). These sections included the requirement that a member tender his book 'when coming into the jurisdiction of any local union.' (Art. XX, Sec. 31). It is now asserted by the defendant Local in the present action that the abovequoted phrase is the only prerequisite to the transfer from one local to another (defendant's post hearing memorandum p. 6). Thus, although the Court of Appeals did not determine the requirements of membership in Local 11 (in part because it feared it might not have before it all the relevant evidence, footnote p. 819 of 287 F.2d), it did not find that the 'when coming' clause precluded the requirements from being met because of a six-year delay in that case between plaintiff's moving into the jurisdiction of the local and his request for a transfer.
The plaintiffs request that the court enter judgment obligating the defendant Local 483 to grant them membership in defendant Local. The Hughes case, however, indicates that an order so framed may be improper. The court there points out that the right to transfer is not specifically enumerated in Section 101(a)(1) of the LMRDA. (29 U.S.C.A. § 411(a)(1)). This section does guarantee to them the right 'to nominate candidates, to vote in elections or referendums of the labor organization, to attend membership meetings, and to participate in the deliberations and voting upon the business of such meetings * * *.' They are entitle to all rights guaranteed to members by the LMRDA but are not entitled, under this statute, to any additional rights of members not guaranteed by this statute.
The Third Circuit therefore indicates that any order be framed in terms of the statutory language. Since plaintiffs allege a denial of their rights as guaranteed by Section 101(a)(1), the order should be in terms of that section's language as quoted above.
Let an order be submitted.
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