Petition — International Brotherhood of Teamsters v. Teamsters Local 701

Supreme Court brief1976

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IN THE

Supreme Court of the United States

OcTOBER TERM, 1975

No 75-1329

INTERNATIONAL BROTHERHOOD OF TRAMSTERS, CHAUF-

FEURS, WAREHOUSEMEN AND HELPERS OF AMERICA,

- Petitioner

TEAMSTERS Loca. 701, et al., Respondents

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE THIRD CIRCUIT

J AMES VANR. SPRINGER

RosLyn A. MAZER

DIcKSTEIN, SHAPIRO & Morin

1735 New York Avenue, N.W.

Washington, D. C. 20006

Attorneys for Petitioner

Press or Byron S. ADAMS PRINTING, INC., WASHINGTON, D. C.

<>,

TABLE OF CONTENTS

Page

COS TRO oc cern sessccncatcascesescessonene’s 1

IS © 5 oho 0s scuenscdhcidesecesesunedianess 2

CNUERT TUITE ov cdinc icacccccceencecdscscens 2

6 5 ii c4n ddan senacernes eheews 2

NN ee acicoh a <heta bb eebkas Cheueckeeednns 3

1. The International Constitution .............. 3

2. The Problems Relating to Local 701’s Partici-

pation in Joint Collective Bargaining ........ 6

3. The Circumstances Relating to Local 701’s

Failure to Exhaust Remedies Under the Inter-

i Ce dd ede mecteseeen 10

REASONS FOR GRANTING THE WRIT ............ece0e0% 12

a Ne a a hal 18

Appenpnix A—Court of Appeals Judgment Order .... la

Aprenptx B—Order Denying Rehearing ............ 3a

Aprenpix C—District Court Opinion ............... 4a

Aprenvix D—I¢xeerpts from International Union Con-

I Ni.ncdkn Oenbsconetecebundue kaw euteetes 23a

TABLE OF CITATIONS

CasEs:

Buzzard v. Local Lodge 1040, International Association

of Machinists, 480 F.2d 35 (9 Cir. 1973) ........ 15, 16

Drake Bakeries, Inc. vy. Local 50, Bakery Workers, 370

SEE Ok4a s Koha aiken ee Seen oe Na ire eesaees 13

Detroy v. American Guild of Variety Artists, 286 F.2d

75 (2 Cir. 1961), cert. denied 366 U.S. 929 ....... 15

Farowitz v. Associated Musicians of Greater New York,

Local 802, 330 F.2d 999 (2 Cir. 1964) ........... 17

ii Table of Citations Continued

Page

Fingar v. Seaboard Air Line R.R., 277 F.2d 698 (5 Cir.

NN vac dinckencsdsavevcedcases taswnnskewaneus 7

Hines v. Anchor Motor Freight, Inc., No. 74-1025, 44

U.S. Law Week 4299, March 3, 1976 ............ 13

Hodason v. Local 6799, United Steelworkers, 403 U.S.

SE ee eee See ee Pere et ee Pere 13, 14

International Association of Machinists v. Central Air-

Meas, Due. Bee Ui GEE ce vccccccveccncsescgucess 15

Johnson v. Rockhold, 293 F. Supp. 1016 (E.D.N.Y.

ee ee error reer Tree 16

Local 33, International Hod Carriers Union v. Mason

Tenders District Council, 291 F.2d 496 (2 Cir.

BORD oon dckdgscditageesbesesianthaussesnentss 14

Local 721, Packinghouse Workers v. Needham Packing

er Oe i gon as cénddaecibapuseneseseeses 13

Local Union 1219 vy. United Brotherhood of Carpenters,

314 F. Supp. 148 (D. Me. 1970) ............+6.. 15

Parks v. International Brotherhood of Electrical Work-

ers, 314 F.2d 886 (4 Cir. 1963), cert. denied 372

OR, SE ccc du kackceeus so habs (Adee cakes ea cnds 14

Republic Steel Corp. v. Maddox, 379 U.S. 650 ....... 13

Semancik vy. United Mine Workers, District #5, 466

- ® Be ge Se ; Berrevrereririrrir se 12, 17

Voce ©. Bipes, TIE UB TT2 2. cccsvcccecccccesecsees 13

Vestal v. Hoffa, 451 F.2d 706 (6 Cir. 1971), cert. denied

ot i et eevee rrr rrr Try Terr rr rs re 11

STATUTES AND MISCELLANEOUS:

Labor-Management Relations Act § 301(a), 29 U.S.C.

SE 5 bac 4 have 4e es Read kOe ECEOREKA ONE ROMO CREE CO 2,3

Labor-Management Reporting and Disclosure Act § 101

(a) (4), 29 U.S.C. § 411(a) (4) 2... ccccescceces 16, 17

Cox, The Role of Law in Preserving Union Democracy,

72 Harv. L. Bev. GOD (1950) ....ccccccccccceess 15

IN THE

Supreme Court of the United States

OctTozser Term, 1975

No.

INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUF-

FEURS, WAREHOUSEMEN AND HELPERS uF AMERICA,

Petitioner

TEAMSTERS Loca 701, e¢ al., Respondents

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE THIRD CIRCUIT

The International Brotherhood of Teamsters, Chauf-

feurs, Warehousemen and Helpers of America (here-

after ‘‘International Union’’) petitions for a writ of

certiorari to review the judgment of the United States

Court of Appeals for the Third Circuit entered in this

proceeding on November 17, 1975.

OPINIONS BELOW

The judgment order of the Court of Appeals (App.

la-2a) and the opinion of the United States District

Court for the District of New Jersey (App. 4a-22a)

are not reported.

JURISDICTION

The judgment of the Court of Appeals (App. la-2a)

was entered on November 17, 1975. A timely petition

for rehearing with suggestion for rehearing en banc

was denied on December 16, 1975 (App. 3a). This

Court’s jurisdiction is invoked under 28 U.S.C. § 1254

(1).

QUESTION PRESENTED

Whether a district court may, as a matter of unfet-

tered discretion and without statement of reasons,

Waive an express requirement of a union constitution

that internal remedies be exhausted prior to litigation

of a contractual dispute between components of an

international union.

STATUTE INVOLVED

This action arises under § 301(a) of the Labor-

Management Relations Act of 1947, 29 U.S.C. § 185(a),

which provides in pertinent part:

‘*(a) Suits for violation of contracts between an

employer and a labor organization representing

employees in an industry affecting commerce as

defined in this chapter, or between any such labor

organizations, may be brought in any district court

of the United States having jurisdiction of the

parties, without respect to the amount in eouitro-

versy or without regard to the citizenship of the

parties.”’

STATEMENT

This litigation, brought against the International

Union by one of the approximately 900 local labor

organizations of which it is constituted, concerns one

incident in a perennial intra-union dispute over the

collective bargaining benefits to be received by Local

701’s members. In 1970, respondent Local 701 accused

the International Union of breach of an alleged under-

taking to secure for Local 701’s members monetary

benefits greater than those secured for members of

other locals in the nationwide and areawide contracts

negotiated in that year. Instead of seeking redress

under the International Constitution (see pp. 10-11,

infra), Local 701 immediately filed suit against the

International Union under Section 301 of the Labor-

Management Relations Act. Judgment was entered

for the amounts that Local 701 clain *d its members

would have received from their employers during the

three-year contract period but for the alleged breach,’

and the court of appeals affirmed in a brief ‘‘ judgment

order.”’

Petitioner seeks review of the judgment below only

insofar as it affirmed the distriet court’s denial of the

motion to dismiss for failure to exhaust internal rem-

edies.

1. The International Constitution

The Constitution of the International Union, like

other union constitutions, is a comprehensive charter

1JIn addition to the contract claim against the International

Union that went to the jury, the complaint raised a variety of

claims against the International Union, other local unions and

the employers involved in the negotiations. The other defendants

and most of the other claims were eliminated from the case on

a motion to dismiss (see opinion at App. 4a-22a) ; a directed ver-

dict was entered on a fraud claim; and a claim of breach of the

duty of fair representation was severed and thereafter abandoned.

The individual respondents Swist and Freda filed a purported

class action on behalf of Local 701’s members one year after the

Local itself had sued on the same vause of action. The class action

was disallowed and the case was subsequently consolidated with

Local 701’s case. The verdict and judgment were in the amount

of $108,380.59 for Local 701 and $72 for Swist and Freda (repre-

senting their individual pro rata shares as members).

defining the relationships among its constituent bodies

and their mutual rights and obligations, particularly

in the collective bargaining context from which this

litigation arises. It establishes an elaborate structure

for the governance of the International Union itself

and for the resolution of disputes. It also provides

specifically for nationwide and areawide collective

bargaining and for harmonization of differences as to

the common negotiating positions to be taken. Perti-

nent provisions of the Constitution, as in effect at the

relevant times, are set forth in full text as Appendix D,

App. 23a-29a, infra.

The constitutional provisions relating to the govern-

ance of the International Union may be summarized

as follows:

(1) The International Convention, in which all

locals are proportionally represented, is the ‘‘su-

preme governing authority’’ possessing plenary

power (Art. III, See. 1). The International Con-

vention adopts and amends the Constitution (Art.

III, See. 9), and elects the International Union’s

officers. These include the General President, the

General Vice President, the General Secretary-

Treasurer and twelve Vice Presidents who are

‘fas nearly as practicable [to] be distributed

throughout the entire country.’’ These officers

constitute the General Executive Poard (Art. IV,

Secs. 1 & 2).

(2) The General Executive Board has the general

“authority to interpret and apply the Constitu-

tion and laws of the International Union and to

decide all questions of law thereunder subject to

appeal to the next Convention,’’ as well as ‘‘gov-

erning authority over the International Union and

its subordinate bodies to the end of upholding the

laws and policies of the Brotherhood as expressed

in this Constitution’’ (Art. LX, See. 1). The Gen-

eral President (whose powers were exercised by

the General Vice President at the times pertinent

to this litigation) has general supervisory power

and the authority to decide questions of law and

settle and determine grievances and disputes be-

tween meetings of the General Executive Board,

all subject to appeal to the General Executive

Board (Art. VI, Sees. 1(b) & 2(a)).

(3) There are a variety of specific procedures for

the resolution of different types of intra-union

dispute, including review by the General Execu-

tive Board and then by the International Conven-

tion. There is further a general requirement that

‘‘Every member, officer, elected Business Agent,

Local Union, Joint Council or other subordinate

body * * * against whom adverse rulings or deci-

sions have been rendered or who claims to be ag-

grieved, shall be obliged to exhaust all remedies

provided for in this Constitution and by the In-

ternational Union before resorting to any court,

tribunal or agency against the International

Union, any subordinate body or any officer or

employee thereof.”’ (Art. XIT, See. 12(a)).

In addition to the general procedures for resolving

disputes, there are two specific constitutional provi-

sions with respect to intra-union conflicts in collective

bargaining positions. Article XVI, Section 4(a) pro-

vides that

“Tf any Local Union believes that an area, multi-

area or national, company-wide or industry-wide

eontraet proposal will deprive its involved mem-

bers of better existing conditions of general appli-

eation to all such involved members of the Local

Union it may appeal to the General Executive

Board which shall have the final authority to de-

termine whether such alleged better general con-

ditions shall be continued or shall yield to the

overall gains of the proposed contract.’

In any ‘nstance where one subordinate body is ad-

versely affected by an agreement entered into by

another subordinate body, Article XII, See. 11(d)

further provides that

“The General Executive Board shall also have the

power to take such disciplinary action as it deems

necessary after proper notice according to this

Constitution in those cases where it finds that a

subordinate body or its representatives have with-

out good cause executed agreements which ad-

versely affect members of this International Union

within the jurisdiction of the particular Joint

Counctil.’’

2. The Problems Relating to Local 701’s Participation in

Joint Collective Bargaining

Prior to 1967, Local 701 had not participated in

nationwide or areawide collective bargaining, but had

been permitted to negotiate separately with the em-

ployers in its New Jersey jurisdiction. The Local 701

agreement due to expire October 31, 1967, provided

‘‘welfare’’ benefits (i.e., employer contributions to pen-

sion and health and welfare plans) superior to those

enjoyed by the other Teamster locals in the New

Jersey-New York Area; specifically, those benefits

were to be at a rate ten cents per man-hour above

those of the other locals by reason of an end-of-term

cost of living adjustment unique to Local 701.

Efforts were made to include Loeal 701 in the na-

tionwide and areawide negotiations for the 1967-1970

contract period, but Local 701 refused to participate.

The other locals proceeded to negotiate a National

Master Freight Agreement and a New Jersey-New

York Area Suppleme: t as provided in the Interna-

tional Constitution, and the resulting agreements duly

became effective as of September 1, 1967. Although

these agreements were binding upon it under Article

XVI, Section 4(a) of the Constitution, Local 701 re-

mained adamant and brought suit in a New Jersey

court to enjoin the requirement of adherence to the

agreements. That suit was settled by a Memorandum

of Understanding between Local 701 and the Inter-

national Union (P!>intiffs’ Exhibit D, executed Oc-

tober 10, 1967), which provided that Local 701 would

accept the general agreements and would receive both

the increases in welfare payments they provided (be-

ginning on September 1) and the end-of-term ‘increase

provided in its former separate agreement (expiring

October 31). The affected employers ultimately ac-

ceded to this double increase in benefits after negotia-

tions with Loeal 701 and a strike against two of them.

The result was to maintain the ten-cent welfare differ-

ential in favor of Local 701’s members for the contract

period expiring March 31, 1970.

The present litigation relates to Local 701’s effort

to perpetuate the same ten-cent differential (at a higher

absolute level) for yet another contract period, from

1970 to 1973. When the National Master Freight

Agreement and the New Jersey-New York Area Sup-

plement came up for renegotiation, Local 701 once

again sought to exclude itself. This time, however,

Local 701 acceded to the pressure to comply with the

International Constitution during the course of the

negotiations with the employers, and the consideration

it exacted was less clear than in the different cireum-

stances of 1967. On March 18, 1970, the Interna-

tional Union and Loeal 701 entered into an under-

standing (in the form of an exchange of correspond-

ence, Plaintiffs’ Exhibits W and Z) the pertinent con-

ditious of which were as follows:

‘‘Any inereases negotiated by the International

Union with respect to pension or welfare contri-

butions shall in the case of Local 701 be paid on

top of the existing Local 701 welfare and pension

contribution rate.

* * + * *

‘*Loeal 701’s major concern is that it not lose any

wages, hours or working conditions which are bet-

ter than those contained in the Nativnal Master

Freight Agreement and Supplements and further

that its membership has the full advantage of all

benefits negotiated by the International Union for

the forthcoming coutract so long as the Interna-

tional Union assures Local 701 that the wages,

hours, and working condition benefits will be ap-

plied uniformly and in the case of economic items,

on top of existing wage, pension and welfare con-

tribution levels * * *.’’

This suit charges the International Union with a

breach of the March 18, 1970 ‘‘contract’’.* Local 701’s

grievance arose out of the fact that while the joint

agreements provided for uniform inerements in all

locals’ preexisting levels of benefits, the New Jersey-

New York Area locals other than 701 also obtained

2 Local 701 further contended that the International Union had

continuing obligations under the 1967 Memorandum of Under-

standing, but the point was of no significance to the outcome since

those obligations were alleged to be the same as the obligations

created by the 1970 understanding.

A ct Sarat oe cera ee

separate ‘‘rider’’ agreements—apart from the Na-

tional Master Freight Agreement and the Area Sup-

plement—in which their employers agreed, in effect,

to raise the level of their welfare benefits to the same

level as was to be enjoyed by Local 701. The principal

questions litigated velow (other than the exhaustion

question which we discuss in detail in the next part

of the Statement) were (1) whether the agreement

was intended to preserve a ten-cent differential or

merely to assure that any increases provided by the

general agreements would be added to Local 701’s ex-

isting benefits; (2) whether the ‘equalization’’ riders

were attributable to agents of the International Union

as an element of the general negotiations or were the

achievement of the other leeals acting on their own and

thus not forbidden by the agreement; (3) whether it

would have been possible to maintain a ten-cent dif-

ferential for Local 701’s members even if the Inter-

national Unien had done everything it allegedly was

required to do.’

The jury resolved all of these issues in Loval 701’s

favor, finding (in the words of the instructions, tr.

1106) that the International Union ‘‘acting through

its agent[s], servants or employees * * * assisted the

other locals in the New York-New Jersey supplemen-

tal area in achieving equalization, and this violated

the contract between Loeal 701 and the International

*** Tt further awarded damages in the full amount

claimed, thus aecepting the proposition that all of the

% The damages claimed (and awarded) were in the full amount

of ten cents for each man-hour worked by each Local 701 mem-

ber during the 1970-73 contract period, less the amounts actually

received from those employers whom Local 701 persuaded to

restore the ten-cent differential in separate negotiations aided by

a collateral strike.

employers would have given Local 701’s members a

ten-cent premium but for the breach.‘

3. The Circumstances Relating to Local 701’s Failure To Ex-

haust Remedies Under the International Constitution

The welfare benefit issue underlying this litigation

surfaced early in the 1970 negotiations, when the repre-

sentatives of the locals other than 701 vociferously de-

manded equalization as a major bargaining goal. “The

testimony at the trial revealed that Local 701's presi-

dent had known of these equalization demands through-

out the negotiating period (tr. 265, 183-184). Nonethe-

less, it is undisputed that Loeal 701 did not utilize its

right under Article XVI, Section 4(a) of the Consti-

tution *o appeal to the International General Executive

Board for a determination whether its own ‘better

general conditions shall be continued or shall vield to

the overall gains of the proposed contract.” Indeed,

Local 701 substantially ignored invitations to partici-

pate in the Area negotiations (tr. 209-210) and shunned

both the preliminary formulation of proposals and the

discussions with the employers (tr. 260-266). It main-

tained this stance notwithstanding its statement in the

agreement on which it sued that ‘* Loeal 701 * * * wishes

to fully comply with the provisions of the International

Constitution and By-Laws * * *,”’

It is equally undisputed that at no time after the

alleged breach of its understanding with the Interna-

*The problems relating to Local 701’s welfare benefits did not

end with the 1970-73 contract period. Two suits are now pend-

ing in which Local 701 asserts essentially the same contentions

with respect to the 1973-76 contract. Tcamsters Local Union No

701 ¥. International Brotherhood of Teamsters, D.N.J. Civ No.

74-1099; Teamsters Local Union No. 701 v. International Brother-

hood of Teamsters, Chauffcurs, Warchousemen and Helpers of

America, D.N.J. Civ. No. 75-1763. |

tional Union did Local 701 seek any remedy from the

General Executive Board under its general judicial

powers or seek to exercise its further right of appeal to

the International Convention held in 1971. The record

shows that the International Union specifically invited

Loeal 701 to use the internal procedures available un-

der the Constitution after the present dispute arose. A

telegram sent by the General Vice President to the

President of Local 701 on April 20, 1970, (ten days be-

fore the complaint was filed) stated that ‘‘it is the po-

sition of the International Union that if Local 701 feels

itself aggrieved by any alleged acts of the International

Union, there are applicable internal union procedures

available to Local 701 to have any alleged complaint or

violation heard and resolved. Of course any such com-

plaint will be promptly processed.’’ *

As we have noted, the district court denied the Inter-

national Union’s motion to dismiss the complaint for

failure to exhaust intra-union remedies under the In-

ternational Constitution.® While indicating some unex-

plained doubt as to the availability of internal remedies

5 See Affidavit in Support of Opposition of Defendant Inter-

national Brotherhood of Teamsters to Plaintiff’s Motion for Pre-

liminary Relief, filed Ang. 12, 1970, at p. 16, and Exhibit 4

thereto. The General Vice President was at that time perform-

ing the powers and duties of the General President (id. p. 1)

and accordingly had constitutional authority ‘‘to interpret the

Constitution and laws of the International Union and to decide

all questions of law thereunder’’ subject to appeal to the General

Executive Board and to the Convention (Art. VI, See. 2(a)).

This was, accordingly, an authoritative ruling that a remedy

would be available to Local 701 under internal union procedures.

See Vestal v. Hoffa, 451 F.2d 706 (6 Cir. 1971), cert. denied,

406 U.S. 934.

‘The exhaustion point was again raised and rejected in the

motion for judgment notwithstanding the verdict (tr. 1134).

for consideration of Local 701’s claim, the district court

rested its decision fundamentally upon the proposition

that *‘to press any internal remedies which may exist

would prove futile and meaningless. Further, the

Court by virtue of its discretion in this matter does not

deem the exhaustion of intra-union remedies necessary

or pre-requisite to invoking its jurisdiction’’? (App.

17a). The only suggestion of a reason why exhaustion

would be *‘ futile and meaningless”’ or should be excused

as a matter of discretion appears in the court’s recita-

tion of Loeal 701’s argument that ‘tsuch appeal would

be to the International, of whose acts the plaintiff would

be complaining’’ (App. 16a).

The court of appeals’ entire disenssion of the exhaus-

tion issues was as follows:

‘Whether a plaintiff will be required to exhaust in-

ternal union remedies prior to bringing a § 301 ae-

tion is a matter within the sound discretion of the

district court, cf. Semaneth v. UMW, District 5,

466 F.2d 144 (3d Cir. 1972), and we find no abuse of

discretion in excusing exhaustion in this case.’’

| App. 2a}

Thus, the court of appeals apparently acknowledged the

existence of internal remedies, holding that their ex-

haustion was properly excused as a matter of disere-

tion notwithstanding the district court’s failure to ar-

ticulate any particularized reason for doing so.

REASONS FOR GRANTING THE WRIT

This Court has held that ‘‘[a]s a general rule in

‘ases to which federal law applies, federal labor poliey

requires that individual employees wishing to assert

contract grievances must attempt use of the contract

grievance procedure agreed upon by employer and un-

A eben we

ion as the mode of redress.’’ Republic Steel Corp. v.

Maddox, 379 U.S. 650, 652. So too, the Court has re-

quired employers to exhaust their contractual remedies

as a condition for bringing suit, unless it was clear

that those remedies were available only to unions and

employees. Drake Bukeries, Inc. v. Local 50 Bakery

Workers, 370 U.S. 254; Local 721, Packinghouse Work-

ers v. Needham Packing Co., 376 U.S. 247. Addition-

ally, the Court has recognized and given effect to the

Congressional policy which as a general rule requires

union members to exhaust internal union remedies be-

fore asserting a judicial or administrative claim

against a union, ‘‘to preserve the vitality of internal

union mechanisms.’’ Hodgson v. Local 6799, United

Steelworkers, 403 U.S. 333, 340.

Exeept with respect to one specialized situation,"

this Court has not, however, provided the lower courts

with guidance as to the circumstances under which

noncompliance with exhaustion requirements may be

excused in intra-union litigation. In holding that such

waiver is a matter of discretion for which particular

reasons need not be given, the court below has articu-

lated a standard so loose as to risk nullifieation of the

exhaustion requirement. Whether such a standard is

proper and, if not, what the criteria for waiver should

be are important questions of labor law that should be

settled by this Court.

1. The courts have properly held that exhaustion of

internal remedies is peculiarly appropriate as a pre-

7 It is established that an employee may sue his emplover or his

union without exhausting contractual remedies if the union has

violated its duty of fair representation in processing a grievance

against the employer. Vaca v. Sipes, 386 U.S. 171, 186; Hines v.

Anchor Motor Freight, Inc., No. 74-1025, 44 U. S. Law Week 4299,

March 3, 1976.

requisite to litigation by a local union against an in-

ternational union with which it is affiliated. Thus, the

Second Circuit directed summary judgment against a

local union seeking to enforce an alleged work assign-

ment agreement, because of the local’s failure to comply

with a constitutional exhaustion requirement similar to

Article XIX, Section 12(a) of the International Con-

stitution. Local 33, International Hod Carriers Union

v. Mason Tenders District Council, 291 F.2d 496 (2 Cir.

1961). In Parks v. International Brotherhood of Elec-

trical Workers, 314 F.2d 886, 924-925 (4 Cir. 1963),

cert. denied 372 U.S. 976, the Fourth Circuit similarly

applied the exhaustion requirement to a collective bar-

gaining dispute between a local union and its interna-

tional. While the requirement was held satisfied by

an appeal to a body comparable to the General Execu-

tive Board—a step not taken in the present case—the

court went on to approve the international’s disciplin-

ary measures on the merits for reasons identical to those

underlying the exhaustion requirement. The court

found ‘‘considerations of basic union policy and strue-

ture’’ involved in determining ‘‘how shall the power

over collective bargaining be distributed within the la-

bor organizations’’ and concluded that ‘‘Questions as

to how relations between an international and its local

might best be regulated are for internal settlement or

for Congress, which possesses the legislative power.

Judges lack that power even when they are convinced

of the desirability of improvements in the law.’’ 314

F.2d at 906. This Court has articulated essentially the

same principle in the analogous context of union elee-

tion litigation, referring to ‘‘the longstanding congres-

sional policy against unnecessary governmental inter-

ferences with internal union affairs.’’ Hodgson v.

Local 6799, United Steelworkers, supra, 403 U.S. at

338. See Cox, The Role of Law in Preserving Union

Democracy, 72 Harv. L. Rev. 609, 615 (1959).

When, as here, the question in dispute relates to

the meaning and effect of an ambiguous agreement

affecting the intricate matters involved in joint collec-

tive bargaining, it is not only the general policies op-

posing governmental interference and favoring con-

servation of judicial resources that come into play.

Equally important is the courts’ need for expert assis-

tance in interpreting union rules and practices and in

properly foeusing issues. See Detroy v. American

Guild of Variety Artists, 286 F.2d 75, 79 (2 Cir.

1961), cert. denied 366 U.S. 929; Buzzard v. Local

Lodge 1040, International Association of Machinists,

480 F.2d 35, 41-42 (9 Cir. 1973). And wholly apart

from such policy considerations, any agreement among

component bodies of this International Union is neces-

sarily subject to the requirement of the International

Constitution, governing all of their relationships, that

‘“‘Every * * * Local Union * * * against whom

adverse * * * decisions have been rendered or who

claims to be aggrieved, shall be obligated to ex-

haust all remedies provided for in this Constitu-

tion and by the International Union before resort-

ing to any court * * * against the International

Union * * *.”

See International Association of Machinists v. Central

Airlines, Inc., 372 U.S. 682, 695.

2. The rule of discretion enunciated and applied

below is inconsistent with the principles applied by

other lower courts in both intra-union contract cases

and other cases where the exhaustion requirement ap-

plies. Thus, Local Union 1219 v. United Brotherhood

of Carpenters, 314 F. Supp. 148, 152 (D. Me. 1970),

dismissed a local’s suit against its parent union to

enforce a jurisdictional agreement, holding that the

failure to exhaust internal remedies was not excused

where ‘‘[nJo facis have been shown which would jus-

tify the Court in assuming that the General Executive

Board would not give full and fair consideration to

plaintiff's position.”’ The facet that the appeal was

from action by the General President of the parent

union properly did not move the court either in Local

Union 1219 oy in Johnson v. Roekhold, 293 F. Supp.

1016, 1018 (K.D.N.Y 1968) (applying the analogous

exhaustion requirement of §101(a)(4) of the Labor-

Management Reporting and Disclosure Act, 29 U.S.C.

§ 411(a)(4))-

Other courts of appeals have been careful to require

specific factual justification for excusing noneompli-

ance with exhaustion requirements. Buzzard v. Local

Lodye 1640, International Association of Machinists,

480 F.2d 35, 41 (9 Cir. 1973), reversed a district court’s

decision excusing exhaustion where the issues involved

the interrelationship between an international consti-

tution and a collective bargaining agreement, holding

that there was no ‘‘sufficient showing that the intra-

union remedies available to plaintiffs would be futile

or inadequate to resolve their claims.’’ The court in

*So also, the mere fact that the claim here was against the

International Union could not excuse exhaustion. As we have

noted, the authority of the General Executive Board is superior to

that of any of the International Union’s officers, including the

General President or Vice President. The Board is chosen by the

[nuternational Convention toe provide broad geographical represen-

tation. No more than three of its fourteen members (General Vice

President Fitzsimmons and Vice Presidenis Trerotola and Cala-

brese) had any prior involvement in the Local 701 problem.

Farowitz vy. Associated Musicians of Greater New

York, Local 802, 330 F.2d 999, 1003 (2 Cir. 1964), an

LMRDA ease, noted with approval that the district

court (though granting a preliminary injunction after

being ‘‘thorougkly advised’’) ‘‘explicitly retained for

trial the question whether further intraunion proceed-

ings at this juncture would be futile.’’ See also Fingar

v. Seaboard Air Line R.R., 277 F.2d 698, 701 (5 Cir.

1960).

Even in eases involving individual rights under the

Labor-Management Reporting and Disclosure Act,

there is no precedent of which we are aware for excus-

ing exhaustion without factual inquiry into specifie

justilications. Semancik v. United Mine Workers Dis-

trict #5, 466 F.2d 144 (3 Cir. 1972), the only prece-

dent cited by the court of appeals for its ‘‘sound dis-

cretion’? principle involved harassment of members

exercising free speech rights, and the court noted that

‘the courts are particularly solicitous when the right

of free speech is at stake’? (at 151). In that ease,

moreover, the court specifically noted not only the

nature of the claims involved but also the erucial fact

that plaintiffs’ internal claim ‘‘would be heard by the

very incumbent board whose reelection they had con-

tested”? (at 149).

In the present case, there was no factual showing

whatever in support of a claim of futility or other ex-

cuse for failure to exhaust internal remedies. If ex-

haustion were not required under these circumstances

—as the court of appeals held in leaving the matter to

the district court’s unfettered discretion—both the

general exhaustion doctrine and specifie contractual

requirements such as that of Article NIX, Section

12(a) of the International Constitution would lose

much of their practical significance in encouraging

union autonomy and avoiding unnecessary litigation.

This Court should correct the erroneous principle ar-

ticulated and applied below.

CONCLUSION

For the foregoing reasons, the petition for a writ of

certiorari should be granted.

Respectfully submitted, AP p E N D | X

J AMES VANR. SPRINGER

Rostyn A. MAZER

DICKSTEIN, SHAPTRO & Morin

1735 New York Avenue, N.W.

Washington, D. C. 20006

Attorneys for Petitioner

March 1976

ArPENDIX A

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

No. 75-1303

Teamsters Loca 701

AAA Trucxixe Corpr., et al.

(D.C. Civil No. 551-70)

Bernarp Swist, et al.

Vv.

Tue INtTerRNaTioNAL Brotnernoop or TEAMSTERS,

ete., Appellant,

(D.C. Civil No. 715-71)

INTERNATIONAL BrotHerRnoop OF TEAMSTERS, CHAUFFERS,

WakEHOUSEMEN AND Hevpers or AMERICA,

Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW JERSEY

Argued October 30, 1975

Before Grssons, Cireuit Judge, Markey, Chief Judge,

Court of Customs and Patent Appeals, Wess, Cir-

cuit Judge

Judgment Order

The International Brotherhood of Teamsters appeals

from a jury verdict awarding plaintiff Local 701 $108,380.59

in damages for breach of contract. The issues raised in

this appeal concern:

1. the jurisdiction of the district court to entertain this

suit;

2. whether Local 701’s failure to exhaust contractual

grievance procedures rendered this suit premature;

3. the sufficiency of the evidence to support the damage

award; and

4, the adequacy of the court’s charge on the question of

damages.

We find that this suit in the district court for violation

of a ‘‘contrac[t]’’ between ‘‘labor organizations’’ is au-

thorized by § 301(a) of the Labor Management Relations

Act, as amended, 29 U.S.C. §185(a). Whether a plaintiff

will be required to exhaust internal union remedies prior

to bringing a § 301 action is a matter within the sound

discretion of the district court, cf. Semancik v. UMW, Dis-

trict 5, 466 F.2d 144 (3d Cir. 1972), and we find no abuse

of discretion in excusing exhaustion in this case. We also

find that the evidence was sufficient to sustain the damage

award, and that the trial judge adequately instructed the

jury as to the law of damages applicable to the case.

It is therefore ApsupcEep and Orperep that the judgment

of the district court be and is hereby affirmed. Costs taxed

in favor of Local 701.

By the Court,

/s/ Joun J. Gripsons

Circuit Judge

Attest

/s/ Tuomas F. Quinn

Thomas F. Quinn

Clerk

Dated: Nov. 17, 1975

Certified as a true copy and issued in lieu

of a formal mandate on December 24, 1975.

Test: Tuomas F. Quinn

Clerk, United States Court of Appeals

for the Third Circuit

APPENDIX B

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

No. 75-1305

Teamsters Locau 701

Vv.

AAA Trebxine Corp., ef al,

(D.C. Civil No. 551-70)

Bernarp Swist, ef al.

Tue INTERNATIONAL Bro tuertioop or TEAMSTERS,

ete., Appellant,

(D.C. Civil No. 715-71)

INTERNATIONAL BroTHERHOOD OF TEAMSTERS, CHAUFFERS,

WanrEHOUSEMEN AND Hevpers or AMERICA,

SUR PETITION FOR REHEARING

Present: Serrz, Chief Judge, Van Dusex, Avpisert, ADAMs,

hippons. Rosexnx, Hunter, Markey, Chief Judge,

Court of Customs and Patent Appeals, Wets and

Gartn, Circuit Judges

The petition for rehearing filed by

Appellant

in the above entitled case having been submitted to the

judges who participated in the decision of this court and

to all the other available circuit judges of the cirevit in

regular active serviee, and no judge who concurred in the

decision having asked for rehearing, and a majority of

the circuit judges of the circuit in regular active service

not having voted for rehearing by the court in bane, the

petition for rehearing is denied.

By the Court,

/s/ Joun J. Gipsons

John J. Gibbons

Dated: December 16, 1975 Judge

yor FoR PusLICATION “APPENDIX C

{Filed Nov. 6, 1970]

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

Civil Action No. 551-70

Teamsters Locau 701, Plaintiff,

AAA Truckine Corp., er au., Defendants.

On Motion To Dismiss Complaint

OPINION

WortenpykE, Senior District Judge:

The plaintiff (local) is an unincorporated labor organ-

ization affiliated with the International Brotherhood of

Teamsters, Chauffeurs, Warehousemen and Helpers of

America (International).

Plaintiff, in its five-count complaint against International

and numerous other Locals affiliated therewith and various

employers of members of the plaintiff seeks damages and

injunctive relief; more particularly restraint of defendant

International from taking any action to control the col-

lective bargaining rights of plaintiff Local.

CoMPLAINT

As already stated the complaint in this action is in five

counts. The first count consists of 59 numbered paragraphs.

Each of the succeeding counts incorporates by reference

the allegations of the first count. Scattered among the

allegations of the complaint are references to annexed ex-

hibits obviously intended to be suppottive of the allega-

tions in connection with which the exhibits are cited. In

substance, therefore, the complaint presents not only alle

% a oe Maine BS has

gations but evidence of events upon which they are predi-

eated. By far the allegations of the first count, together

with the exhibits cited therein, are the most numerous, most

complicated and completely basic to the allegations thereof

and of the succeeding counts. It becomes necessary there-

fore to summarize the first count of the complaint.

The pleader predicates jurisdiction upon alleged diver-

sity of citizenship, upon Section 301(a) of the Taft-Hartley

Act, 29 U.S.C. § 185(a), upon Sections 1 and 2 of the Sher-

man Anti-Trust Act, 15 U.S.C. §$ 1 and 2, and upon Title

I of the Landrum-Griffin Act, 29 U.S.C. § 411, those federal

acts are coupled with a common law charge of ‘‘conspiracy,

fraud, restraining of trade, tortuous (sic), interference

with advantageous business relations and contracts, breach

of contracts, prima facie torts, * * *”’.

It is alleged that Middlesex Motor Freight Carriers As-

sociation is an association of employers employing mem-

bers of the plaintiff Local 701 and others within its juris-

diction. It is also alleged to be the collective bargaining

representative of approximately 81 employers having col-

lective bargaining relationships with the Local.

The pleaded narrative then reverts to September 11,

1967 when, it is recited, plaintiff Local instituted an action

in the Superior Court of New Jersey; a copy of the com-

plaint therein is annexed, as Exhibit B, to the complaint in

the instant action. That exhibit is a copy of a verified com-

plaint in the Chancery Division of the Superior Court of

New Jersey brought by Local 701, plaintiff herein, against

International, one of the defendants herein. In that com-

plaint, consisting of four counts, the Local sought injunc-

tive relief against International, against requiring the

Local to execute a power of attorney, against acting as an

agent of plaintiff Local in negotiations for a collective bar-

gaining contract, against transferring the bargaining rights

of members of the Local and against engaging in any ac-

tivities which would substitute the International as the

bargaining agent for the Local. Mandatory injunctive re-

lief against International was sought to restrain the taking

of any action against Local until the vote had been taken

pursuant to Article XVI, Section 4(a) of the International

Constitution.

Count II of the New Jersey complaint recites provisions

of the Constitution of the Local, approved by the Interna-

tional, including provisions of Article 24 to the effect that

no agreement or contract should be binding upon the Local

Union unless executed and delivered by its duly authorized

officers. It further alleged that the International was not

a party to collective bargaining agreements theretofore

negotiated by the Local and that the International had.

consistently assured the Local that it would never be re-

quired to participate in area-wide or national negotiations,

that Local should abide by the Constitution; but, that the

Local has ‘‘serious doubt as to whether the provisions of

Article XVI, Section 4(a) * * * have been complied with

and have been threatened on one hand by Trusteeship of

the International Union if they do not follow the directive

of the Interational Union, and on the other hand with

action resulting from failure to comply with directive of

the members of Local 701 by members of Local 701.’’ Ac-

cordingly the Local sought all of the relief requested in

Count I and declaratory relief respecting the obligation of

a _ to surrender its bargaining rights to the Interna-

ional.

The remaining counts of the New Jersey complaint, an-

nexed as “Exhibit B’’, elaborate upon and reiterate the

preceding allegations, seek injunctive and declaratory re-

lief and charge that the International had deprived the

Local of collective bargaining rights with which the Inter-

national had interfered.

Reverting to the first count of the complaint in the in-

stant action it is therein alleged that on or about October

10, 1967, the Local and the International entered into a

‘‘Memorandum of Understanding’’ by virtue of which the

various differences existing between the International and

the Local were resolved, and that, on September 13, 1967,

the Local permitted the International to negotiate on its

behalf the provisions of the Master Freight Agreement,

and, in addition, a supplemental agreement conforming to

the provisions of the ‘‘Memorandum of Understanding’’

(copy annexed to the instant complaint). That ‘‘Memo-

randum’’ provided in part as follows:

‘‘5(a). Settlement of Litigation

The International will not execute an Agree-

ment on behalf of Local 701 which will not con-

tain all of the provisions contained in this

Rider.

(b). Local 701 will withdraw all litigation now pend-

ing in the various Federal and State Courts

and before the National Labor Relations Board.

This understanding will be read into the record

of the ease pending before the Superior Court

of New Jersey.”’

The ‘‘Memorandum”’ was dated October 10, 1967, and

signed in behalf of Local 701 and of the International

(Exhibit D).

In the action brought in the New Jersey Chancery Di-

vision an Order to Show Cause and temporary restraining

Order was obtained on September 11, 1967, in accordance

with the prayers for relief in the complaint; and, it was

the above-stated ‘‘ Memorandum of Understanding’’ which

embodied the agreement between the parties terminating

that litigation. That agreement was approved by the Judge

of that State Court and read into the record of the pro-

ceedings therein.

It is further alleged in the instant complaint that the

area freight agreements negotiated with respect to Local

701 were due to expire on March 31, 1970, and that on

July 24, 1969, plaintiff was requested by the International

to submit a summation for contract proposals. A copy of

that notification from the International is also annexed

to the present complaint as Exhibit E.

On January 12, 1970, International wrote to the Presi-

dent of Local requesting copies of contracts between the

Local ‘‘covering over-the-road, city cartage and/or dock

operations’’, The same letter instructed the Local not

to renew any such contracts without the prior approval of

International, and stated that the ‘‘Local Union and the

involved Employers shall become parties to the National

Master Freight Agreement, and the New Jersey-New York

Supplement thereto, if the work involved comes within the

operations covered by those Agreements.’’ In this con-

nection the attention of the Local was called to the provi-

sions of Article XII, Section 11(a), (b), (c) and (d) and

Article XVI, Section 4, of the International Constitution.

(Exhibit K). To the foregoing letter from International

the Local responded by letter dated January 22, 1970

(Exhibit L) which stated that:

‘c# * * it was clearly established by representatives

of the International Union, our attorneys and repre-

sentatives of Local 701 that in fact, there was no

contract and to date, none has been totally compiled

by the International Union on our behalf covering

those points ratified by our members under the mail

referendum as well as those points protected under

the memorandum of Settlement approved by Judge

Matthews.’’

*** * * Local 701 cannot tell any employer that they

must become parties to the National Master Freight

Agreement or the New York-New Jersey Supplement

thereto. We have been advised by our attorneys, in

view of the course of events which took place some

three years ago when the same question was raised, that

serious consequences, along with damages, could flow

to Local 701 particularly in view of the fact that our

membership has mandated certain instructions to the

Executive Board of this Local Union.’’

The same letter expressed emphatic disapproval of the

content of the letter from the International which had

evoked that response. The letter of February 3, 1970 (Ex-

hibit N) from the International to the Local warned that

the International was obliged to assure compliance with

its Constitution, and that, if the members of the Local

were permitted to vote to override those provisions, the

Local President would be held ‘‘responsible if further ac-

tion is required by the International * * *.’’ The corre-

spondence between the Local and International became

thereafter progressively recriminatory.

Ultimately, counsel for the Local confirmed by letter

that which had been agreed upon with International, by

way of a telephone conversation, that any wage increase

negotiated by International ‘‘be, in the case of Local 701,

applied on top of the existing wage levels’’; that any in-

creases negotiated by International with respect to pen-

sion or welfare contributions shall be in the case of Local

701 ‘‘paid on top of the existing Local 701 welfare and

pension contribution rate’’; that any additional monies

made available from the Cost of Living Index should ‘‘be

applied uniformly throughout the entire Country’’; and

that ‘‘the agreement * * * between the International Union

and Local 701, dated October 13, 1967, does not have to

be renegotiated since it is in full force and effect and,

therefore, automatically applies at this time.’? (Exhibit

W).

The General Vice President of International advised

the President of the Local (Exhibit X) that the letter from

the attorney for the Local dated March 13, 1970 adequately

summarized the contents of the General Vice President’s

letter on the application of the increases to be negotiated

for the new agreement ‘‘including the application of the

proceeds of the cost of living article during the life of the

agreement.’’ The Local was therefore requested to coun-

tersign the General Vice President’s letter and return it

10a

to him. The Local considered this letter from International

to be a conditional response to the agreement as set forth

- in Local’s letter of March 13, 1970, refused to countersign

said letter and instituted suit.

Apparently an action was brought by the Local against

the International which was dismissed by the Local in

consequence of various negotiation conferences which re-

sulted in International’s unconditional agreement to the

provisions of Local’s March 13, 1970 letter as evidenced by

a telegram from the General Vice President to the President

of the Local, dated March 18, 1970, confirming that:

‘6(1) Mr. Friedland’s letter of March 13, 1970 repre-

sents our complete agreement as to the matters

contained therein ;

(2) Our understanding does not in any way apply to

garage, maintenance or clerical employees. This

telegram is being sent pursuant to an agreement

reached during a telephone conference call on

March 18, 1970 in which you, Mr. Jacob Fried-

land and Mr. Bartosic participated that no later

than March 23, 1970 Local 701 will dismiss the

lawsuit which it has instituted against the Inter-

national Union due to a misunderstanding as to

the status of negotiations.’’ (Exhibit Z).

Paragraph 32 of the first count of the complaint alleges

that, ‘‘Upon receipt of the aforesaid telegram Local 701

withdrew its lawsuit, withdrew all its demands upon the

employers and the International that it be permitted to

negotiate its own collective bargaining agreements, and

relied completely upon the International, the National Over-

the-Road and City Cartage Policy Negotiating Committee,

its sister teamster locals, and the other defendants herein,

in the negotiations of new collective bargaining Master

Area Supplements and Riders.”’

lla

The Local advised the Middlesex Freight Carriers Asso-

ciation on March 23, 1970 that the dispute between the

International and the Local ‘‘has been completely resolved

and a full understanding reached.’’ However, not even

that acknowledgement climinated the differences between

the Local and the International. The complaint goes on to

allege that on April 7, 1970 the International informed the

Local that ‘‘an Agreement had been reached on monetary

items and left only ‘area supplements to be completed’,

***.’’ Two days later, according to the complaint, Samuel

Provenzano, President of Local 560, and a representative of

the International, notified the President of Local 701 that

the latter would have to agree to accept less of a monetary

package than other locals in the New Jersey-New York

area were receiving and that a ‘‘spokesman for the North

Jersey Metropolitan Locals advised that all New Jersey-

New York Locals had combined to oppose Local 701, and

would not support in the future any legitimate picket

lines [and] would strike any employer who agreed to give

Local 701 the same wage increases and pensions and wel-

fare increases being negotiated by other Teamsters Loeals

in the North Jersey area.’’ The fat was again in the fire

and Local 701 responded in its ‘‘confidential’’ hand-de-

livered letter of April 9, 1970 (Exhibit DD). That letter

was addressed ‘‘To All North Jersey-Metropolitan Area

Freight Locals Att: Mr. Sam Provenzano, Spokesman,”’

and in that letter the Local President stated in part that:

*‘Our members will not take less for your benefit! As

far as any help, let the record be clear, as I told you

you never gave us any help and in fact, you ran down

J oe ‘sanctioned’ picket line involving Trans-

* * * T want to respond to your implied coerceme

make our members take less hon whet the a

tional has already agreed to protect for us. We will

not depart or give up the independently negotiated 10¢

which we got for ourselves * * * without your aid, or

anybody else’s for the matter.’’ '

12a

From this point on the first count of the complaint alleges

a conspiracy on the part of the labor union defendants to

threaten employers with economic sanctions who had col-

lective bargaining agreements with Local 701. Plaintiff,

while admitting that the International conformed to its

agreements with the Local in 1967, despite the complaints

of many New Jersey Locals ‘‘that Local 701 was thereby

able to maintain certain monetary differential advantages

over other local unions in the New Jersey-New York area,’’

alleges that now the International aided and abetted certain

local unions in a direct attempt to break and undermine the

International’s agreements with the plaintiff Local and

permitted certain favored locals to obtain collective bar-

gaining agreements containing better working conditions

than those negotiated by International for and on behalf

of Local 701. It is further charged that other defendant

locals conspired with International and with International

Freight Negotiating Committee to impose upon Local 701

a collective bargaining contract providing for wages, hours

and working conditions less favorable than those obtained

by the other defendant locals.

We need not be presently concerned with the generalized

accusatory and conclusory allegations in the first count of

the complaint. Suffice it to say that they may be summed

up in the accusation that the International, its General Vice

President and its General Executive Board acquiesced in

the claimed discriminatory conduct to the disadvantage of

the plaintiff Local and demonstrated their inability to take

any action to protect Local 701 and the rights of its mem-

bers.

Accordingly, plaintiff Local now demands judgment

against all of the defendants for punitive and compensa-

tory damages, the appointment of a Receiver for the In-

ternational Union, injunctive relief, costs and attorneys

fees.

The second count alleges that International conspired

with the other defendants to eliminate marginal small

Se ee ee a

Oe ee

Sey ee

A AGEL RO Ee il

ow he

13a

companies and others from the trucking industry for the

purpose of destroying Local 701, and to place control of the

trucking commerce in the hands of a few carriers, thereby

destroying competition. As parts of the conspiracy it is

alleged by the plaintiff that the defendants’ nefarious

agreement would impose ‘‘leapfrogging economic exac-

tions upon certain employers in the event Local 701 was

successful in obtaining monetary increases for its mem-

bers,’’ and that Local Unions who were members of the

conspiracy threatened various employers with economic

sanctions in the event that said employers entered into or

continued collective bargaining relationships which resulted

in more advantageous working conditions and hours for

Local 701 members employed in the general trucking

industry. Similar relief is sought by the plaintiff in the

second count to that prayed for in the first count, Indeed

the relief sought in each of the five counts of the present

complaint is similar.

JURISDICTION

Defendant International has meved the court for a dis-

missal of the complaint upon the following grounds:

1. Lack of diversity jurisdiction under 28 U.S.C. § 1332;

2. Failure to state a claim under Title I of the Labor

Management Reporting and Disclosure Act (Lan-

drum-Griffin Act), 29 U.S.C. § 401 et seq.;

3. Failure to state a claim cognizable under the Sher-

man Anti-Trust Act, 15 U.S.C. § 1 et seq.;

4. Failure to state a claim under Section 301 of th

National Labor Relations Act, 29 U.S.C. § 185; :

5. Failure of plaintiff to exhaust its internal union

remedies;

6. Exclusiveness of jurisdiction in the National Labor

— Board over the subject matter of this

action.

Upon the argument of the present motion plaintiff aban-

doned its allegations of diversity jurisdiction since there is

l4a

obviously no diversity between plaintiff and all ‘of the

defendants. International is a labor organization con-

sisting of approximately 900 affiliated subordinate bodies

and comprising 2,000,000 members situated in every state

of the United States, including New Jersey. Thus, the

International, which is deemed to possess the citizenship of

each of its members, is a citizen of every State of the

United States for purposes of diversity. See, United Steel-

workers v. R. H. Bouligny, Inc., 382 U.S. 145 (1965).

Plaintiff fails to state a claim cognizable under either

Section 101(2)(1) or 101(a)(2) of the Landrum-Griffin Act,

29 U.S.C. § 411. Those sections do not apply to the rela-

tionship between the parent union and its subordinate

locals, but only prescribe the rights of individual union

members enumerated therein. Calhoon v. Harvey, 379 U.S.

134 (1964). The only rights protected by Section 101(a) (1)

are those expressly enumerated in the section, which ex-

cludes implied rights. Local 701 cannot therefore bring an

action on behalf of its members to protect rights granted

them under Section 101(a)(1) which have not been violated.

Mamula v. United States Steelworkers, 304 F.2d 108 (3rd

Cir., 1962) cert. den. 371 U.S. 823 (1962); Cleveland

Orchestra Committee v. Cleveland Federation of Musicians,

303 F.2d 229 (6th Cir., 1962). Section 101(2)(2) protects

the rights of union members ‘‘* * * to meet and assemble

freely with other members; and to express any views, argu-

ments or opinions; * * *’’. The complaint does not charge

violation of those rights.

Accordingly, Count III of the Complaint, which is pre-

dicated upon jurisdiction under Title I of the Labor Man-

agement Reporting and Disclosure Act of 1959, 29 U.S.C.

§ 411(a)(1) and (a)(2), is stricken.

The complaint in this case fails to state a claim cognizable

under the Sherman Anti-Trust Act. Section 16 of the Clay-

ton Act provides that ‘‘the labor of a human being is not

a commodity or article of commerce.’’ 15 U.S.C. §17

eee ee Ot

- ee atten a ee

eo a ae

15a

(1964). Accordingly, piaintiff Local is not engaged in

trade or commerce within the purview of the Sherman Act.

United Brick and Clay Workers v. Robinson Clay Products

Co., 64 F. Supp. 872 (D.C. Ohio, 1946); United Brick &

Clay Workers v. Junction City Clay Co., 158 F.2d 552 (6th

Cir., 1946). Although a labor organization may forfeit its

antitrust immunity when it conspires with a group of

employers to restrain trade, United Mineworkers v. Penn-

ington, 381 U.S. 657 (1965), such a conspiracy must be

directed against a commercial competitor in order to violate

the anti‘rust law. Union activity resulting in the elimina-

tion of wage competition ‘‘is not the kind of restraint Con-

gress intended the Sherman Act to prosecribe,’’ notwith-

standing its resultant effect on the product market. Penn-

ington, supra, at page 664; Apex Hosiery Co. vy. Leader, 310

U.S. 469 (1940). Moreover, plaintiff is not engaged in

commerce as contemplated by ‘he Sherman Act. Therefore,

plaintiff lacks standing to complain that International was

a party to a conspiracy aimed at forcing small trucking

companies out of business. There is no allegation that

Local 701 or its members have been directly or proximately

injured by the alleged conspiracy.

Accordingly, Count II of the Complaint, which is pre-

dicated upon jurisdiction under the Sherman Anti-Trust

Act, 15 U.S.C. § 1 et seq., is stricken.

Defendants’ claim that this action should be dismissed,

since plaintiff has failed to exhaust its internal union

remedies, is without merit. An inspection of the Inter-

national Constitution discloses various remedies available

within the union to settle a grievance asserted against a

subordinate body of the International, e.g. a member or

officer of a Local Union, a Local Union or a Joint Council.

The Constitution provides for an appeals process with the

foreclosure of union remedies when said appeal is presented

at the National Convention. Despite the quite orderly and

judicious trial and appeal procedure provided, a right of

Fe TTT ee ee ae ne

16a

action by a subordinate body against the International it-

self within that framework is not evident.

It would appear from the complaint filed herein that

plaintiff’s grievance was with the International. The

alleged contractual relationship asserted was between the

Local and the International, and its alleged subsequent

breach being an act of the International. Plaintiff con-

tends that to force it through an avenue of internal union

remedies, which path is not quite clear, would be futile and

meaningless since such appeal would be to the International,

of whose acts the plaintiff would be complaining.

The doctrine of exhaustion of intra-union remedies is one

founded in the common law and developed on a case by case

basis until it was preserved by statute, 29 U.S.C. § 411(a)

(4). However, it was not intended that this doctrine be

mandatory. The provision in the statute pertaining to the

docrine of intra-union exhaustion was incorporated therein

to preserve this doctrine as it had developed in the courts,

lest it otherwise appear that it was Congress’ intention to

abrog*te the doctrine. Nevertheless there was an absolute

outside limitation beyond which the judiciary could not re.

quire exhaustion whereby any remedy which would require

proceedings exceeding four months duration could not be

demanded. Detroy v. American Guild of Variety Artists,

286 F.2d 75 (2nd Cir., 1961) cert. den. 366 U.S. 929. The

Court in Detroy, supra, went on to state at p. 78:

‘‘The statute provides that any member of a labor

organization ‘may be required’ to exhaust the internal

union remedies, not that he ‘must’ or ‘is required to’

exhaust them. *.* * We therefore construe the statute

to mean that a member of a labor union who attempts

to institute proceedings before a court or an adminis-

trative agency may be required by that court or agency

to exhaust internal remedies of less than four months’

duration before invoking outside assistance.’’

17a

See also Lavender v. United Mine Workers of America, 285

F. Supp. 869 (S.D.W.Va., 1968) :

‘¢Bven under the assumption that the doctrine [exhaus-

tion of intra-union remedies] is applicable to the facts

presented, the exhaustion of internal remedies is not in

all cases mandatory but may be dispensed with if in the

exercise of its discretion the court determines that the

pursuit of available remedies is not required or would

prove futile. Simmons v. Avisco Local 713, Textile

Workers Union of America, 350 F.2d 1012 (4th Cir.,

1965) ; United Brotherhood of Carpenters and Joiners

of America v. Brown, 343 F.2d 872 (10th Cir., 1965).

at p. 872.

This Court agrees with plaintiff’s contention that to

press any internal remedies which may exist would prove

futile and meaningless. Further, the Court by virtue of its

discretion in this matter does not deem the exhaustion of

intra-union remedies necessary or pre-requisite to invoking

its jurisdiction. Accordingly, the defendants’ assertion that

this Court is without jurisdiction for plaintiff’s failure to

exhaust intra-union remedies is rejected in order that an

expeditious adjudication of this mafter can be had.

Defendants further contend that this Court lacks juris-

diction because the subject matter of this action is within the

exclusive jurisdiction of the National Labor Relations

Board. This assertion is easily disposed of by the follow-

ing:

Smith v, Evening News Assn., 371 U.S. 195 (1962) ;

‘We likewise reject that [pre-emption] doctrine [of the

Garmon case] here where the alleged conduct of the

employer, not only arguably, but concededly, is an

unfair labor practice within the jurisdiction of the

National Labor Relations Board. The authority of the

Board to deal with an unfair labor practice which also

violates a collective bargaining contract 1s not dis-

placed by § 301 but it is not exclusive and does not

destroy the jurisdiction of the courts in suits under

§ 301.’ at p. 197.

18a

and, Vaca v. Sipes, 386 U.S. 171 (1967) ;

‘‘This pre-emption doctrine, however, has never been

rigidly applied to cases where it could not fairly be

inferred that Congress intended exclusive jurisdiction

to lie with the N.L.R.B. Congress itself has carved out

exceptions to the Board’s exclusive jurisdiction: * * °;

§ 301 of that Act [Labor Management Relations Act,

1947], 61 Stat. 156, 29 U.S.C. § 185, permits suits for

breach of a collective bargaining agreement regardless

of whether the particular breach is also an unfair

labor practice within the jurisdiction of the Board

It is obvious by reference to the above cited authorities

that the federal courts should maintain jurisdiction over

suits brought under § 301, notwithstanding the fact that the

acts complained of may also be unfair labor practices with-

in the jurisdiction of the National Labor Relations Board.

This ground for dismissal for lack of jurisdiction asserted

by defendants is, therefore, likewise rejected.

The plaintiff also invokes the provisions of Section 301 of

the National Labor Relations Act, which provides, in per-

tinent part, as follows: w

‘Suits for violation of contracts between an employer

and a labor organization representing employees in an

industry affecting commerce as defined in this chapter,

or between any such labor organizations, may be

brought in any district court of the United States hav-

ing jurisdiction of the parties, without respect to the

amount in controversy or without regard to the citizen-

ship of the parties.’’ (29 U.S.C. § 185(a)).

The term ‘‘contract’’ as used in § 301(a) is not limited to

collective bargaining agreements between employers and

unions. It applies also to agreements between employers

and labor organizations which seriously and directly affect

the employment relationship. It is clear from the summary

of the complaint herein that at least a prima facie showing

has been made of an existing contract between the Local and

19a

International, upon which is founded a basis for determin-

ing Section 301 jurisdiction.

The Taft-Hartley Act of which Section 301 is a part dis-

closes a congressional policy to avoid intervention in in-

ternal union affairs. N.L.R.B. v. Allis Chalmers Manufac-

turing Co., 388 U.S. 175 (1967); Scofield v. N.L.R.B., 394

U.S. 423 (1969).

In Textile Workers vy. Lincoln Mills, 353 U.S. 448 (1957),

the Supreme Court held that the federal courts should take

a broad view of § 301(a) jurisdiction and should fashion a

body of federal substantive law from the policy of the

national labor laws. Although that case presented no real

jurisdictional problem since the controversy was between

an ‘‘employer’’ and a “‘labor organization’’, as compared

with the case at bar, which cor-erns an ‘‘International’’ and

a ‘*Local’’ labor union, it is ».nificant in that it invokes a

rule of liberalism in construing the dictates of § 301(a) jur-

isdiction.

Accordingly, this Court concurs with the result reached in

Parks v. International Brotherhood of Electrical Workers,

314 F.2d 886 (4th Cir., 1963) cert. den. 372 U.S. 976 (1963),

affirming 203 F. Supp. 288 (D.C. Md., 1962), which in-

terpreted the decision in Lincoln Mills, supra, as a mandate

for the literal construction of the ‘‘ between any such labor

organizations’’ clause. That decision held that the District

Court had jurisdiction in a suit by a local union against an

International union for an injunction requiring the Inter-

national to restore the revoked charter of the local. This

Court is obligated to recognize Parks, supra, as controlling

on this issue.

In disposing of the jurisdictional question under § 301(a)

the Court in Parks had this to say at p. 916:

‘<@ * * Moreover in interpreting the ‘between an

employer and a labor organization’ clause, the Supreme

Court has consistently favored the broad view of sec-

20a

tion 301(a) jurisdiction. [N. 51, see Textile Workers

v. Lincoln Mills, 353 U.S. 448 ° ° *]

In the absence of a clear expression of congressional

intention to the contrary, we consider it permissible to

adopt the more literal interpretation of the ‘between

any such labor organizations’ clause—the interpreta-

tion that would support jurisdiction in this case.’

To the same effect as in Parks is the decision in Retail

Clerks v. Lion Dry Goods, 369 U.S. 17 (1962) ; see also the

majority opinion in Local 33, International Hod Carriers,

etc. v. Mason Tenders, etc., 291 F.2d 496 (1961).

Having so decided the jurisdictional question presented

by § 301, this Court must recognize jurisdiction over the

International. However, it is significant, as previously indi-

cated, that a valid subsisting contract between the parties is

necessary in order to predicate jurisdiction upon § 301.

‘‘Suits for violation of contracts between an employer

and a labor organization * * * or between any such

labor organizations, may be brought in any district

court of the United States * * *’’ 29 U.S.C. § 185(a).

(emphasis added).

Among the numerous defendants named in the complaint

are various employers of members of Local 701, the collec-

tive bargaining agent of the employers, various locals in the

metropolitan area, and the National Over-the-Road and City

Cartage Policy Negotiating Committee. No one of these

defendants is a party to a contract with 701 which affects

the rights and privileges sought to be protected by the

instant suit.

Although it is undeniable that the employers and their

bargaining agent are parties to a contract with Local 701,

that contract is one of collective bargaining, the terms of

which have not been breached. There is no existing con-

tract at all between Local 701 and various metropolitan

locals nor the National Over-the-Road and City Cartage

Negotiating Committee. The only contract which 701

— fae ~

2la

entered into preserving the rights which it alleges have

now been abridged is the contract which may exist with the

International as set forth in Count I of the complaint. This

alleged contract has formed the basis for finding jurisdic-

tion under § 301 and it is only the terms of this contract and

its guarantees which may have been breached. None of the

other defendants ever contracted to preserve said rights and

even if these co-defendants acted in concert with the Inter-

national, in order to deprive Local 701 of its rights under

that contract, there still would not be a contractual relation-

ship existing between these defendants and Local 701 upon

which § 301 jurisdiction could be founded.

In conformity with the views expressed above, this action

is dismissed as to all defendants who have so moved and to

all others by this Court sa sponte, except for the defendant,

International, over whom the Court retains jurisdiction by

virtue of § 301. Therefore, the parties to this action have

been reduced to the claimant, Local 701 and the defendant,

International.

At this point there remains but one issue to be decided.

The plaintiff in its exhaustive jurisdictional claims in-

cluded a common law charge of conspiracy, fraud and tort.

Ordinarily, with the absence of diversity jurisdiction these

claims would necessarily fall since they are not predicated

on any particular statutory grant of jurisdiction. Claims of

this sort are commonly designated state claims. Plaintiff

contends that this Court should maintain jurisdiction over

these claims through the exercise of pendent jurisdiction.

Plaintiff relies, in support of its contention that pendent

jurisdiction should be exercised, upon United Mine Workers

v. Gibbs, 383 U.S. 715 (1966). Gibbs, supra, is recognized

as controlling on the issue of pendent jurisdiction, and it

states at pp. 725-26:

‘*The state and federal claims must derive from a com-

mon nucleus of operative fact. But if, considered

without regard to their federal or state character, a

plaintiffs claims are such that he would ordinarily be

22a

expected to try them all in one judicial proceeding,

then assuming substantiality of the federal issues, there

is power in federal courts to hear the whole. * °* °

[P]endent jurisdiction is a doctrine of discretion

Its justification lies in considerations of judicial econ-

omy, convenience and fairness to litigants; if these are

not present a federal court should hesitate to exercise

—* over state claims * * *’’ (emphasis add-

ed).

The exercise of pendent jurisdiction requires that the

federal claim be ‘‘substantial’’ and that the state and fed-

eral claims must derive from ‘‘a common nucleus of opera-

tive fact.” It therefore is within the discretion of this

Court to rule on pendent jurisdiction guided by the rules

laid down in Gibbs. This Court finds that the first require-

ment has already been satisfied since previous discussion

has disclosed substantiality of the § 301 claim sufficient to

confer jurisdiction over the International. Further, the

common law claims derive from the same nucleus of opera-

tive fact as the claims under § 301. Consequently, the

Court, in its discretion, will exercise pendent jurisdiction

over the common law charge as it relates to the defendant,

International.

In summary, these motions have produced the following:

(1) International is the sole remaining defendant to this

action, the complaint being dismissed as to all others.

(2) Count II of the Complaint is stricken.

(3) Count III of the Complaint is stricken.

(4) Count IV of the Complaint is stricken, since it is

merely repetitious of Count I in an attempt to secure juris-

diction through all or any of the various statutes cited.

An Order in conformity with the opinion herein expressed

may be presented.

REYNIEN J. WoRTENDYEE, JR.

United States Senior

District Judge

23a

APPENDIX D

Excerpts From 1966-71 International Union Constitution Per-

tinent to Negotiation of Agreements and Internal Remedies

(Plaintiffs’ Exhibit FF)

Article Il, Section 1

CONVENTIONS

The International Convention shall be the supreme govy-

erning authority of the International Union and shall have

the plenary power to regulate and direct the policies, af-

fairs and organization of the International Union.

The Convention of the International Brotherhood of

Teamsters, Chauffeurs, Warehousemen and Helpers of

America shall be held every five (5) years at such time and

place as may be designated by the General Exceutive Board

upon the recommendation of the General President. The

General Secretary-Treasurer shall issue a call for the

Convention not less than ninety (90) calendar days prior

to the date of meeting, unless otherwise directed by the

General Executive Board. In the event of an emergency as

determined by the General Executive Board which prevents

the holding of a Convention in accordance with the pro-

visions herein set forth, the same shall be held as soon

thereafter as possible, in accordance with the intent and

spirit of this Constitution.

Article IV, Section 1(a)

INTERNATIONAL OFFICERS

The Officers of the International Brotherhood of Team-

sters shall consist of a General President, General Sec-

retary-Treasurer, General Vice President, twelve (12)

Vice Presidents, and three (3) Trustees. The General

President, the General Secretary-Treasurer, the General

Vice President and the twelve (12) Vice Presidents shall

constitute the General Executive Board.

24a

Article VI, Section 1(b)

GENERAL DUTIES

The General President shall have general supervision

over the affairs of the International Union, which shall be

conducted in accordance with the Constitution and subject

at all times to review and approval of the General Execu-

tive Board

Article VI, Section 2(a)

JupIcIAL PowERs

The General President shall have authority to interpret

the Constitution and laws of the International Union and

to decide all questions of law thereunder between meetings

of the General Executive Board, and shall have authority,

unless some other procedure is expressly provided in this

Constitution, to settle and determine all grievances and

disputes submitted to him by Joint Councils, Local Unions

and other subordinate bodies or members, between meetings

of the General Executive Board, all subject to appeal to

the General Executive Board, and, thereafter to the next

Convention in the manner and to the extent prescribed in

this Constitution. When any action is taken as provided

herein between meetings of the General Executive Board

such action shall be reported to the next meeting of the Gen-

eral Executive Board for its approval, reversal or modi-

fication, if an appeal has been taken.

Article 1X, Section 1

GENERAL

h powers, duties and authority as are not otherwise

Pert. to the General President and General Secretary-

Treasurer of the International Union shall be exercised,

acted upon, and determined by the General Execntave

Board. The General Executive Board shall have the au-

i A eee ee

A ae Ne A a Eat tay. in| lil wey nt Me

25a

thority to interpret and apply the Constitution and laws of

the International Union and to decide all questions of law

thereunder subject to appeal to the next Convention. The

General Executive Board shall have governing authority

over the International Union and its subordinate bodies

to the end of upholding the laws and policies of the

Brotherhood as expressed in this Constitution.

Article XII, Section 11(d)

Wace Scates anp ApprovaL THEREOF

In such instances where the General Executive Board

receives information of the proposed execution of a con-

tract which affects the interests of either the members in-

volved or any other members of the International Union by

providing working conditions or earnings less than those

prevailing in the area, it shall have the power to hold a

hearing on such matters and may, by a majority vote,

direct the subordinate body to refrain from executing such

agreement, and in such circumstances no proposed agree-

ment shall become valid and binding unless specifically ap-

proved by the General Executive Board. When such action

is contemplated or taken, the employers involved shall be

promptly notified of the necessity of specific approval by

the General Executive Board before the contract involved

may become valid and binding.

The General Executive Board shall also have the power

to take such disciplinary action as it deems necessary after

proper notice according to this Constitution in those eases

where it finds that a subordinate body or its representa-

tives have without good cause executed agreements which

adversely affect members of this International Union with-

in the jurisdiction of the particular Joint Council.

26a

Article XVI, Section 4(a)

Area, Mutti-Area on NaTIONAL

CoMPANY-WIDE og INDUSTRY-wIDE CONTRACTS

If a majority of the affiliated Local Unions vote for area,

multi-area or national, company-wide or industry-wide

negotiations for an area, national, company-wide or in-

dustry-wide contract, all involved affiliated Local Unions

shall be bound by such vote, must participate in such area,

multi-area or national, company-wide or industry-wide

bargaining and shall be bound by the contract approved

as provided below. Upon completion of negotiations by a

Conference, Trade Division, or by any Committee ap-

pointed by the General President, subject to the approval

of the General Executive Board, to engage in negotiation

of an industry, area, multi-area or national or company-

wide contract, such contract shall be submitted to the

membership covered by said contract proposal for their ap-

proval or rejection.

If a majority of the votes cast by Local Union members

voting approve such contract it shall become binding and

effective upon all Local Unions involved and their mem-

bers. Local Unions which are parties to such contracts

may not withdraw from such bargaining unit except upon

six (6) months’ notice and for good cause shown to the

satisfaction of the appropriate Conference, Trade Division

or Committee, and approved by the General Executive

Board of the International Union. If any Local Union

believes that an area, multi-area or national, company-

wide or industry-wide contract proposal will deprive its

involved members of better existing conditions of general

application to all such involved members of the Local

Union it may appeal to the General Executive Board which

shall have the final authority to determine whether such

alleged better general conditicns shall be continued or shall

yield to the overall gains of the proposed contract. Unless

27a

mutually agreed to, no Local Union shall suffer any

economic loss.

Article XVI, Section 4(b)

In the event any Conference, Trade Division or Commit-

tee negotiates a contract which involves, affects or relates

to operations of the employer or employees within the juris-

diction of other Conferences, Trade Divisions or Commit-

tees, notice of intent to execute such a contract shall be

given to the Conference, Trade Divisions, Committees or

Local Unions involved in such other jurisdiction who may

within ten (10) days thereafter, protest the application of

such contract in their area. Failure to file such protest

shall be considered a waiver of any objections to such

contract, but shall not be considered an acceptance of sucu

contract as a substitute for, or in variance of, existing

agreements to which the other Conferences or Local Unions

are parties.

In the event of protest, and if the parties cannot adjust

the same, the matter shall be submitted to the General

Executive Board for its determination, and no such con-

tract shall become finally effective as to such Local Unions

as the General Executive Board may determine until the

determination by the General Executive Board. .

All employers negotiating contracts with Multi-state,

Area, Multi-Area or National Conferences, Trade Divi-

sions or Committees established by the General President,

subject to approval of the General Executive Board, or

with subordinate bodies, shall be provided with a copy of

this Article at the time negotiations are started so they

will have notice of the approval necessary for a binding

contract. All provisions of Article XVI, Section 4(a)

and (b) shall be equally applicable to company-wide nego-

tiations and contracts on an area, multi-state, muiti-area

or national basis.

28a

The General President, subject to the approval of the

General Executive Board, shall have the authority to

appoint negotiating committees and establish procedures

for the negotiation of area, multi-area or national, com-

pany-wide and industry-wide agreements and for the sub-

mission of such negotiated agreements to the membership

covered by the proposed contract for approval or rejection,

and to do all things necessary to implement the enforce-

ment of such agreements and compliance by Local Unions

with the provisions of this Article and the procedures es-

tablished thereunder.

Such negotiating committees shall have the authority,

with the approval of the General Executive Board, to con-

duct contract ratification votes and strike votes on such

area, multi-area or national, company-wide, industry-wide,

or Local Union basis as the committee shall determine,

and in the event the strike is authorized, the said commit-

tee shall have the authority, with the approval of the

General Executive Board, to direct that the strike be con-

ducted on such area, multi-area or national, company-

wide, industry-wide, Local or such other selective basis

as the committee shall determine; provided, however, that

the results of ratification or rejection votes with respect

to national agreements shall be determined on a cumula-

tive basis of all votes cast by all affected voting members

in all areas, with a cumulative majority vote necessary

for acceptance, and a cumulative two-thirds (%) vote

necessary for rejection of the final offer and strike au-

thorization as provided in this Constitution. The require-

ment that the employer’s final offer of settlement can be

rejected only by two-thirds (3%) vote shall not apply dur-

ing a strike.

This Article shall be broadly interpreted to carry out

the intent and purpose of permitting national negotia-

tions and national agreements in any industry ir which the

International Brotherhood of Teamsters has jurisdiction.

29a

Article XIX, Section 12 (a)

EXHAvSsSTION or REMEDIES

Every member, officer, elected Business Agent, Local

Union, Joint Council or other subordinate body against

whom charges have been preferred and disciplinary action

taken as a result thereof, or against whom adverse rulings

or decisions have been rendered or who claims to be

aggrieved, shall be obliged to exhaust all remedies provided

for in this Constitution and by the International Union

before resorting to any court, tribunal or agency against

the International Union, any subordinate body or any officer

or employee thereof.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.