indicated its view of its power to appoint the administrator. Defendant's rejoinder that plaintiff is estopped to deny such futility is incorrect for the reason discussed above in regard to his failure to answer the Board's initial charges.
Secondly, Weihrauch is charged with bypassing the other remedy provided under Section 464(a), a complaint to the Secretary of Labor, who shall investigate and who may bring suit. The majority view among the courts is that the plain language of the statute, as well as its legislative history, indicates alternative routes whereby the aggrieved member can either sue directly or first seek redress from the Secretary. United Brotherhood of Carpenters, etc. v. Brown, supra, 343 F.2d at 880, and cases cited. Other decisions, emphasizing the exhaustion of administrative remedies, deem direct action by the member to be a supplementary remedy, available only if the complaint to the Secretary does not produce full relief. Rizzo v. Ammond, supra; Flaherty v. McDonald, supra; Cox v. Hutcheson, 204 F. Supp. 442 (D. Ind., 1962), but such decisions render the second provision of Section 464(a) superfluous, as noted by the excellent discussion of this point in Executive Bd. v. IBEW, 184 F. Supp. 649 (D. Md., 1960). I agree with Judge Watkins' conclusion in the Executive Bd. case that a member need not first resort to the Secretary.
As for the second Count, defendant argues that even if this Court has jurisdiction under Section 301 of the LMRA, an injunction is precluded by Section 7 of the Norris-LaGuardia Act, 29 U.S.C. § 107. That Act's restrictions on labor injunctions were not repealed by § 301. Sinclair Refining Co. v. Atkinson, 370 U.S. 195, 8 L. Ed. 2d 440, 82 S. Ct. 1328 (1962). The IUE concedes this matter does not fall within the cases set forth in Section 4 of the Norris-LaGuardia Act, in which injunctions are prohibited, but claims it is a "labor dispute" as defined in Section 13, 29 U.S.C. § 113, and, therefore, subject to the procedural requirements, not met here, of Section 7, even though jurisdiction is premised on Section 301 of the LMRA. Publishers' Assoc. v. New York Mailers Union No. 6, 317 F.2d 624 (2nd Cir. 1963), vacated on other grounds.
To fall within Section 13, the dispute must not only concern "association or representation" of persons; it must also concern "terms or conditions of employment" or "negotiating, fixing, maintaining, changing, or seeking to arrange terms or conditions of employment . . .". The impact of the present dispute on such activity is too indirect and insufficiently immediate. Duris v. Phelps Dodge Copper Products Corp., 87 F. Supp. 229 (D.N.J., 1949) and Fitzgerald v. Haynes, 146 F. Supp. 735 (D. Pa., 1956) aff'd, 241 F.2d 417, both of which involved disputes as to which of two competing unions would function under a collective bargaining agreement with an employer, are easily distinguishable. A suit to enjoin a trusteeship of this nature is no more the type of dispute sought to be immunized from precipitous injunction under Section 7 of Norris-LaGuardia, than it is the type of dispute protected from any injunction by Section 4. Parks v. IBEW, supra, 314 F.2d at 889.
Applicability of LMRDA
Finally, the defendant denies that this Court has jurisdiction under Title III of the LMRDA dealing with union trusteeships - and this, apart from the question of whether the IUE Board exceeded its constitutional power in this instance. In its view, Title III only contemplates trusteeships imposed from above by an International in conflict with the subordinate body, and does not reach consensual agreements between the two that a trusteeship is needed for the welfare of the subordinate body. It would distinguish the many cases under the Act which involved combat between the International and a local and imposition of the trusteeship by the latter. E.g. Carpenters v. Brown, supra; Flight Engineers Intern. Ass'n, etc. v. Continental Air Lines, 297 F.2d 397 (9 Cir., 1961) cert. denied, 369 U.S. 871, 8 L. Ed. 2d 276, 82 S. Ct. 1141; and Local No. 2 v. Int'l Brotherhood of Telephone Workers, 261 F. Supp. 433 (D. Mass., 1966).
Defendant argues that since the present trusteeship does not involve this evil of International dominance, but arose from the District's own request, it is not within the reach of the LMRDA.
In effect, it suggests the following: the IUE Executive Board's recommendation to the Council that the Council should recommend a trusteeship, followed by the District Council's compliance, was sufficient authorization to prevent the appointment from being within the purview of Title III.
Under its own constitution, the District merely has the power and duty to make recommendations to the International either for the good of the District membership or the common purposes of the District and the International. Article 3(2). The defendant emphasized at oral argument that in this advisory role, the District Council functions as an arm of the IUE, hence it is unclear to what degree the Council's resolution preserved the membership's autonomy from the IUE as defendant contends. Nor is it completely clear under the case law whether every possible violation of an International's constitutional powers and duties is exempt from the LMRDA attack made here, merely because there is a formal resolution adopted by the body placed in trusteeship. Defendant's attempt to invoke the statutory presumption of validity for a trusteeship during its first eighteen months is a bootstrap approach, since Section 464(c) specifically makes such presumptions contingent upon the appointment of a trusteeship in accordance with the International's constitution, the very point here in issue.
This is not to say that the trusteeship in question did violate Section 462 of the Act; the Union has presented a strong case that it did not. However, until the facts are developed more fully, the exact nature of the process by which it was created - and the degree to which it was untainted by imposition from the IUE Executive Board - cannot be adequately tested against the IUE constitution or against the full range of situations which may be encompassed under Title III.
For all the above reasons, defendant's motion to dismiss the complaint is also denied.
Let an appropriate Order be submitted.