Petition — Greenawalt v. Pawlak

Supreme Court, U.S,

80-803 fi ied Dp

ae NOV 18 1980

AK, JR. CLERK

IN THE

Supreme Court of the United States

OCTOBER TERM, 1980

GREENAWALT, CHARLES E.., LOCAL UNION No. 764,

TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS,

TEAMSTERS JOINT COUNCIL No. 53,

AND INTERNATIONAL BROTHERHOOD OF TEAMSTERS,

CHAUFFEURS, WAREHOUSEMEN AND HELPERS,

m Petitioners,

PAWLAK, JOHN A. AND STAFFORD, JAMES,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

DAVID PREVIANT

ROBERT M. BAPTISTE

Counsel of Record

GARY S. WITLEN

25 Louisiana Avenue, N.W.

Washington, D.C. 20001

Area Code (202) 624-6945

IRA WEINSTOCK

301 Market Street

Harrisburg, Pennsylvania 17101

Area Code (717) 238-1657

Attorneys for Petitioners

International Brotherhood

of Teamsters, et al.

a

WILSON - EPES PRINTING Co., INC. - 789-0096 - WASHINGTON, D.C. 20001

cE 60

QUESTION PRESENTED FOR REVIEW

Does Section 101(a) (4) of the Labor-Management Re-

porting and Disclosure Act of 1959, 29 U.S.C. 411(a) (4),

preclude a labor organization from recovering its ex-

penses from a member who filed a lawsuit against the

union prior to exhausting available internal union reme-

dies and the case was dismissed for that reason where:

1) the labor organization’s constitution requires ex-

haustion of internal union remedies prior to re-

sorting to the judiciary;

2) the labor organization’s internal union remedies

have been found by a court to be adequate;

3) the labor organization’s constitution specifically

authorizes collection of the union’s expenses from

the member who filed the premature suit; and,

4) no effort is made by the union to collect its ex-

penses until after a court has determined that the

member had an obligation to exhaust the avail-

able internal union procedures.

PARTIES IN THE COURT OF APPEALS

The parties before the Third Circuit Court of Appeals

were Charles E. Greenawalt, President of Local Union

No. 764; Local Union No. 764, Teamsters, Chauffeurs,

Warehousemen and Helpers; Teamsters Joint Council

No. 53; and International Brotherhood of Teamsters,

Chauffeurs, Warehousemen and Helpers of America

(Petitioners in this Court); and John A. Pawlak and

James Stafford (Respondents in this Court).

(i)

TABLE OF CONTENTS

Page

QUESTION PRESENTED FOR REVIEW .................. i

PARTIES IN THE COURT OF APPEALS ................ i

ES iy 6. 9 yt: eee iv

SE 1

ESSE Sie a 2

STATUTORY PROVISIONS INVOLVED .................. 2

I oc eeeccccacnccncccncccecoees 3

DECISION OF THE DISTRICT COURT .............. 5

DECISION OF THE THIRD CIRCUIT ................ 6

REASON FOR GRANTING THE WRIT .................... 6

The Court of Appeals for the Third Circuit Has

Decided Important Questions of Federal Law

Based Upon An Erroneous Interpretation of A

Ne cc cccesescescccccscccsccesces 6

CONCLUSION ............. Tea oa ce cncccninopiciesonense 10

;

(iii)

_ PREVIOUS PAGE WAS BLANK |

iv

TABLE OF AUTHORITIES

CASES: Page

IBEW Vv. Foust, 442 U.S. 42 (1979) ....................... 10

NLRB v. Industrial Union of Marine & Shipbuild-

ing Workers, 391 U.S. 418 (1968) ...................- passim

Operating Engineers Local 3 v. Burroughs, 417

F.2d 370 (9th Cir. 1969), cert. denied, 397 U.S.

RS CTI cklescetea i askdeeenttincci ene ncciaingevaametenion 6,8

Pawlak v. Teamsters, Local Union 764, 444 F.

Supp. 807 (M.D. Pa. 1977), aff’d, 571 F.2d 572

CBE Ce TIFT aoaccicctasececsedenectennceigpstnatonnsighornesdiins 8

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

DID isiiceckncccicivervtecpentnintbtecnanecssosioniincnaaitasactnacensets 10

STATUTORY AND LEGISLATIVE MATERIALS:

Judicial Code:

Oe IDs i sanhaidacscesbnulcsentnbeecntenbuotasasese 5

ek foe B's 5 Ragen a eeeeenren eeenpe eas 2

Labor-Management Reporting and Disclosure Act

of 1959:

Section 101(a) (4), 29 U.S.C. 411(a) (4) ...... passim

me BE Ee. | eRe een 2

National Labor Relations Act, as amended:

, mie Ts AE) 5 See errenmcsene 7

SS A Se RE Ae et ce oe 8,9

Congressional Record:

105 Cong. Rec. 15835 (1959) ............................ 9

105 Cong. Rec. 18152 (1959) ............................ 9

105 Cong. Rec. 17899 (1959) ...............-.........-.. 9

MISCELLANEOUS:

Fox and Sonenthal, Section 301 and Exhaustion of

Intra-Union Appeals: A Misbegotten Marriage,

+ 2, ere! UM 6 OR} ) Pee 9

Robbins, Limits of Union Disciplinary Power

Under Federal Law, 24 Fla. L. Rev. 308 (1972) .. 10

IN THE

Supreme Court of the United States

OCTOBER TERM, 1980

No.

GREENAWALT, CHARLES E., LOCAL UNION No. 764,

TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS,

TEAMSTERS JOINT COUNCIL No. 538,

AND INTERNATIONAL BROTHERHOOD OF TEAMSTERS,

CHAUFFEURS, WAREHOUSEMEN AND HELPERS,

. Petitioners,

PAWLAK, JOHN A. AND STAFFORD, JAMES,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

The International Brotherhood of Teamsters, its affili-

ated Local Union 764, Joint Council No. 53, and Charles

E. Greenawalt (collectively “Teamsters”) petition for a

writ of certiorari to review the judgment of the United

States Court of Appeals for the Third Circuit entered

in this case on August 20, 1980.

OPINIONS BELOW

The opinion of the United States Court of Appeals for

the Third Circuit is not officially reported but is printed

2

in the Appendix at la and is unofficially reported at

105 L.R.R.M. 2169. The decision of the United States

District Court for the Middle District of Pennsylvania

is officially reported at 477 F. Supp. 149. (A. 18a)*

JURISDICTION

The decision and judgment of the Court of Appeals was

entered on August 20, 1980. (A: 25a) The Jurisdiction

of this Court is invoked pursuant to 28 U.S.C. § 1254(1).

STATUTORY PROVISIONS INVOLVED

Pertinent provisions of the Labor-Management Report-

ing and Disclosure Act (LMRDA), Section 101(a) (4)

and 102, 29 U.S.C. 411(a) (4) and 412, are reproduced

in the Appendix. (A. 27a)?

1 References to pages in the appendix to this petition are desig-

nated “A”.

2 Section 101(a) (4) provides:

PROTECTION OF THE RIGHT TO SUE.—No labor organiza-

tion shall limit the right of any member thereof to institute

an action in any court, or in a proceeding before any adminis-

trative agency, irrespective of whether or not the labor organi-

zation or its officers are named as defendants or respondents

in such action or proceeding, or the right of any member of a

labor organization to appear as a witness in any judicial, ad-

ministrative, or legislative proceeding, or to petition any legis-

lature or to communicate with any legislator: Provided, That

any such member may be required to exhaust reasonable hear-

ing procedures (but not to exceed a four-month lapse of time)

within such organization, before instituting legal or adminis-

trative proceedings against such organizations or any officer

thereof: And provided further, That no interested employer

or employer association shall directly or indirectly finance,

encourage, or participate in, except as a party, any such action,

proceeding, appearance, or petition.

3

STATEMENT OF THE CASE

In 1977, the United States District Court for the

Middle District of Pennslyvania dismissed a suit brought

under Section 301 of the National Labor Relations Act,

29 U.S.C. § 185, against Teamsters Local Union 764 be-

cause it found that plaintiff, John Pawlak, had “made no

attempt whatsoever to challenge the flouting of his griev-

ance by invoking the steps through which a rank-and-

file employee can bring charges against a local union

officer.” Pawlak v. Teamsters, Local Union 764, 444

F. Supp. 807, 810 (M.D. Pa. 1977). The district court

took special notice of the provisions of Article XIX of

the Teamsters’ constitution which permit any member

of a local union to file internal union charges against any

other member or officer and found that “the Union’s in-

ternal machinery does make it feasible for Pawlak to

overcome the Local’s recalcitrance to have his grievance

processed without the aid of this Court.” Jd. at 811.

Pawlak subsequently filed an appeal with the United

States Court of Appeals for the Third Circuit which sum-

marily affirmed the decision of the district court. 571

F.2d 572 (8rd Cir. 1978).

After this litigation had been concluded, Pawlak ini-

tiated proceedings within the union to redress his alleged

grievances but failed to pursue them. Thereafter, four

members of Local 764 filed charges against Pawlak with

the Local Union Executive Board alleging that. Pawlak

had violated Article XIX, Section 12(b) of the Inter-

national Constitution.* Specifically, Pawlak was charged

3 Article XIX, Section 12(b) provides:

Where a member, officer, elected Business Agent, Local Union,

Joint Council or other subordinate body, before or following

exhaustion of all remedies provided for within the Interna-

tional Union, resorts to a court of law and loses his or its

cause therein, all costs and expenses incurred by the Inter-

4

with having unsuccessfully sued Local 764 without hav-

ing first exhausted the available internal union remedies

as required by Article XIX, Section 12(a),* thereby

causing the union to incur expenses to defend the suit in

the amount of $2,635. Following a hearing before the

Local Union Executive Board, Pawlak was directed to pay

the sum of $2,635 to cover the Local’s litigation expenses.

Pawlak pursued his internal union appeals to Joint Coun-

cil 53 and the General Executive Board, both of which

affirmed the reimbursement of Local 764’s legal expenses.

Thereafter, a complaint was filed in the United States

District Court for the Middle District of Pennsylvania

on October 23, 1978, by Pawlak and another member of

Local 764, alleging a violation of Section 101(a) (4) of

the LMRDA as well as of other provisions of that stat-

national Union may be assessed against such individual, Local

Union, Joint Council or other subordinate body, in the nature

of a fine, subject to all penalties applicable where fines remain

unpaid.

Where such court action is by an individual or by a Local

Union, Joint Council or other subordinate body against a Local

Union, Joint Council or other subordinate body, the foregoing

provision in respect to the payment of costs and expenses shall

be applicable in favor of the Local Union, Joint Council or

other subordinate body proceeded against in court.

4 Article XIX, Section 12(a) provides:

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 sub-

ordinate body or any officer or employee thereof.

5

ute, not here relevant, and seeking injunctive and other

forms of equitable relief.®

DECISIONS OF THE DISTRICT COURT

The unresolved issues in this case were presented to

the district court on cross motions for summary judg-

ment. The district court issued a memorandum opinion

on September 27, 1979, granting Pawlak’s motion for

summary judgment and holding that Article XIX, Sec-

tion 12(b) of the Teamsters’ constitution could not be

enforced in any circumstances. (A. 28a) The district

court, relying on NLRB v. Industrial Union of Marine &

Shipbuilding Workers, 391 U.S. 418 (1968), held that

the Teamsters’ constitution violated the statute because it

placed members “in a position of having to guess whether

the Court will require exhaustion in a particular case.”

(A. 17a) Accordingly, the district court enjoined en-

forcement of Article XIX, Section 12(b) of the Constitu-

tion and ordered the Teamsters to publish a notice of the

court’s decision in the official monthly publication of the

International Union.

In a separate Order entered on November 16, 1979, the

district court specified the content and form of the notice

to be published. (A. 20a) However, the district court

denied other requested relief, finding that “there is noth-

ing in the record to justify Plaintiffs’ contention that

union members have or will be subject to threats and in-

timidation by officials of Teamsters locals.” (A. 21a)

The International Union complied with this Order by

publishing the prescribed notice in the January, 1980

issue of the “International Teamster” magazine.

5 The district court’s jurisdiction was invoked pursuant to 28

U.S.C. § 1381.

6

DECISION OF THE THIRD CIRCUIT

In affirming the district court’s decision, the Third

Circuit Court of Appeals relied upon the decision of the

United States Court of Appeals for the Ninth Circuit in

Operating Engineers Local 3 v. Burroughs, 417 F.2d 370

(9th Cir. 1969), cert. denied, 397 U.S. 916 (1970), and

found that the distinction set forth by this Court in

Marine and Shipbuilding Workers, supra, between suits

involving “internal” union and “external” matters was

inapplicable to LMRDA disputes. (A. 9a) The Third

Circuit rejected the Teamsters’ argument that collection

of the union’s litgation expenses after a court had de-

termined that a member had an obligation to exhaust the

available internal union remedies was permitted by the

statute and was not prohibited by the Marine and Ship-

building Workers, supra, decision. As had the district

court, the Third Circuit found that the “prospect that

a union member who sues his union would risk liability

under 12(b) for attorneys fees incurred by the union,

in the event the court required the member to exhaust in-

ternal remedies, would, we believe, chill union members

in the exercise of their statutory right to sue the union.”

(A. 10a)

REASON FOR GRANTING THE WRIT

The Court of Appeals for the Third Circuit Has Decided

Important Questions of Federal Law Based Upon An

Erroneous Interpretation of A Decision of This Court

The Third Circuit has decided that this Court inter-

preted Section 101(a) (4) of the LMRDA in the Marine

and Shipbuilding Workers, supra, case as precluding

a union from recovering the expenses it incurred in suc-

cessfully defending against a lawsuit brought by a mem-

ber who has failed to exhaust the available internal

union remedies after a court, not the union, has decided

7

that those internal union remedies should have been

invoked prior to the institution of litigation. In fact,

this Court’s decision in the Marine and Shipbuilding

Workers, supra, case established only that Section 8(b)

(1) (A) of the National Labor Relations Act, 29 U.S.C.

158(b) (1) (A), precluded a union from expelling a mem-

ber for filing a charge with the National Labor Relations

Board prior to exhausting internal union remedies. Id.

at 425-426. In that case, the union decided that the mem-

ber had an obligation to exhaust available union remedies

and imposed a punitive sanction upon him for failing to

do so. With respect to the tangential issue of Section

101(a) (4) of the LMRDA, the Court did no more than

resolve in favor of the judiciary the question of whether

the unions or the judiciary had the authority to determine

if internal union remedies had to be exhausted before

bringing a suit against a union. Jd. at 426-428.

In so ruling, this Court implicitly approved discipline

in cases involving “internal union matters,” a finding

criticized by Mr. Justice Harlan in his concurring opinion.

He disagreed with the majority’s conclusion that “a union

may punish a member for his invocation of his remedies

before a court or agency ‘where the complaint or griev-

ance ... concern[s] an internal union matter,’ and

thus does not touch any ‘part of the public domain covered

by the Act....’” Id. at 429.

Although both the Ninth and Third Circuits concluded,

relying upon the Marine and Shipbuilding Workers,

supra, decision, that subjecting a union member to the

possibility that he might be liable for the payment of his

union’s litigation expenses incurred in defending against

his premature lawsuit had a chilling effect on his

LMRDA protected right to sue his union, that question

was never decided by this Court. In fact, this Court’s

opinion clearly imposed upon a union member seeking

judicial review of alleged grievances the responsibility

g

to determine, in advance of litigation, whether his dispute

involved purely “internal union matters” or impacted

on the “public domain.” Again, Mr. Justice Harlan de-

parted from the majority’s analysis and noted that:

Assuming arguendo that there are member-union

grievances untouched by the various federal labor

statutes, this dichotomy has, it seems to me, pre-

cisely the disadvantage that the Court has found

in the Third Circuit’s construction of the proviso:

it compels a member to gamble his union member-

ship, and often his employment, on the accuracy of

his understanding of the federal labor laws. Id.

at 429.

Neither the Ninth Circuit in Burroughs, supra, nor

the Third Circuit in the instant case was justified in

focusing upon Mr. Justice Harlan’s reservations in

Marine and Shipbuilding Workers, supra, and relying

upon them, as though Mr. Justice Harlan were reflecting

the views of the majority of this Court, effectively to

eliminate the proviso to Section 101(a) (4). The question

of whether a union can recover its reasonable costs, after

a court has ruled that a member had an obligation to ex-

haust the available internal union remedies prior to in-

stituting litigation against his union, not only was left

open by this Court but also is fundamental to the appli-

cation of Section 101 (a) (4).

The Third Circuit’s negative answer effectively elimin-

ates the proviso to Section 101(a) (4) from the statute.

Such a development invites union members to disregard

the four-month exhaustion period contained in the pro-

viso, in favor of immediate review by the judiciary of

internal grievances against their unions. From the mem-

ber’s viewpoint, if he goes directly to court with an in-

ternal union grievance, at worst, the court may require

him to go back to the union to exhaust those available

procedures before returning to the court for ultimate

9

resolution of the dispute. At best, the court will resolve

his complaints against the union in the first instance.

It is clear from the legisiative history that the proviso

was carefully considered, extensively debated, and was not

intended to replace existing doctrine supporting the con-

cept of exhaustion of internal remedies. For example,

Senator John Kennedy, co-sponsor of S. 1555 and a Senate

conferee, declared that the proviso was not intended “to

invalidate the considerable body of State and Federal

court decisions of many years standing which require, or

do not require, the exhaustion of internal remedies prior

to court intervention depending upon the reasonableness

of such requirements in terms of the facts and circum-

stances of a particular case.” 105 Cong. Rec. at 17899

(1959) .*

Elimination of the proviso to Section 101(a) (4) will

have the undesirable effect of not only increasing ju-

dicial intervention in the purely internal affairs of unions

but will also tend to erode the exhaustion doctrine in those

cases involving employer-employee disputes. The courts

will be inundated by suits brought under Section 301 (a)

of the NLRA, 29 U.S.C. § 185(a), involving disputes

which are presently resolved by contractual grievance pro-

cedures.” The ince~tive for a member to avoid grievance

procedures in favor of seeking relief from a court is even

greater in the Section 301 context than in the Section 101

(a) (4) situation, for the simple reason that decisions

made under contractual grievance procedures most often

are final and binding and are subject to a limited review

6 Also, statements of Representatives John McCormack and

Griffin at 105 Cong. Rec. 15835 and 18152 (1959), respectively.

7 Indeed, the total elimination of the exhaustion of remedies

doctrine in the Section 301 context has been advocated by counsel

for Pawlak. See, Fox and Sonenthal, Section 301 and Exhaustion

of Intra-Union Appeals: A Misbegotten Marriage, 128 Pa. L. Rev.

989, 1035 (1980).

10

by the courts. Republic Steel Corp. v. Maddow, 379 U.s

650 (1965) .°

Not only is the burden of this increased litigation on

the judiciary obvious and undesirable, but, as this Court

has recognized, the cost of litigation can “impair the

financial stability of unions,” “deplete union treasuries”

and impair the “effectiveness of unions as collective bar-

gaining agents.” IBEW v. Foust, 442 U.S. 42, 48, 50-

51 (1979). Exhaustion of union remedies may result in

favor of the union member and conclude the dispute

without litigation.

The proviso io Section 101(a) (4) should not be ju-

dicially eliminated by an erroneous interpretation of the

Marine and Shipbuilding Workers, supra, decision. If

significant changes are to be made in the statutory struc-

ture to reallocate the respective responsibilities of the

judiciary and unions for resolving internal union dis-

putes, it is for the Congress to legislate that reallocation

of responsibilities.

CONCLUSION

For the reasons set forth above, this petition for a writ

of certiorari should be granted.

Respectfully submitted,

DAVID PREVIANT

ROBERT M. BAPTISTE

GARY S. WITLEN

IRA WEINSTOCK

Attorneys for Petitioners

DATED: November 18, 1980

8 See: Robbins, Limits of Union Disciplinary Power Under Fed-

eral Law, 24 Fla. L. Rev. 308, 324 (1972).

la

APPENDIX

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

Nos. 79-2587 & 79-2780

JOHN A. PAWLAK AND JAMES STAFFORD

Vv.

CHARLES E. GREENAWALT; LOCAL UNION No. 764, TEAM-

STERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS;

TEAMSTERS JOINT COUNCIL No. 58; AND INTERNA-

TIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS,

WAREHOUSEMEN AND HELPERS,

International Brotherhood of Teamsters,

Chauffeurs, Warehousemen and Helpers of

America,

Charles E. Greenawalt and Local Union No.

764

Teamsters, Chauffeurs, Warehousemen and

Helpers,

Appellants

On Appeal from the United States District Court

For the Middle District of Pennsylvania

(C.A. No. 78-1035)

Argued June 10, 1980

2a Biase

Before: ADAMS, VAN DUSEN and HIGGINBOTHAM,

Circuit Judges

(Filed August 20, 1980)

PAUL ALAN LEvy (Argued)

ARTHUR L. Fox, II

ALAN B. MORRISON

Public Citizens Litigation Group

Washington, D.C.

Attorneys for Appellees

RoBERT M. BAPTISTE (Argued)

GARY S. WITLEN

Washington, D.C.

JOHN J. DUNN, SR.

Scranton, PA

Attorneys for International

Brotherhood of Teamsters,

Chauffers, Warehousemen and

Helpers of America

IRA WEINSTOCK

PAUL DELLASEGA

Harrisburg, PA

Attorneys for Appellants

Greenawalt and Local Union

764

OPINION OF THE COURT

ADAMS, Circuit Judge.

The principal issue presented on this appeal is whether

the Labor-Management Reporting and Disclosure Act, 29

8a

U.S.C. § 401-531 (1976), prevents a union from fining

one of its members, pursuant to a provision in the

union’s constitution, for suing the union without first

exhausting internal union procedures. The district court,

in granting summary judgment for the plaintiffs, held

that such a fine is invalid under the Act. We affirm.

I,

John Pawlak, a member of Local Union No. 764, Team-

sters, Chauffers, Warehousemen & Helpers, filed an action

three years ago in the district court contesting a change

in the working conditions at his place of employment. He

alleged that his employer, in instituting the change, had

violated the applicable collective bargaining agreement

under which Pawlak worked. Pawlak further charged

that Local 764 had violated its duty of fair representa-

tion by failing to process his grievance concerning the

change in conditions. The district court dismissed the

complaint on the ground that Pawlak had not exhausted

internal union remedies before filing suit. Pawlak v.

International Brotherhood of Teamsters, Chauffeurs,

Warehousemen and Helpers of America, Local Union No.

764, 444 F. Supp 807 (M.D. Pa. 1977); aff'd mem. 571

F.2d 572 (3d Cir. Ty78).

Pawlak then attempted to pursue his grievance through

the union’s internal channels, but his charges were dis-

missed by the Executive Committee of Local 764, and he

did not pursue them further. Thereafter, Local 764 filed

internal charges against Pawlak, accusing him of violat-

ing Article XIX §6(1) and 12(b) of the Constitution of

the International Brotherhood of Teamsters.’ Specifically,

1 Article XIX, Section 12(a) provides:

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

4a

Pawlak was charged with having sued Local 764 without

exhausting internal remedies, thereby causing the union

to expend $2,635 defending the suit. Following a hearing

before the Local Union Executive Board, Pawlak was

fined the sum of $2,635. On appeal, both the Joint Coun-

cil and General Executive Board of the Union affirmed

the imposition of the fine.

On October 23, 1978, Pawlak and James Stafford, also

a member of Local 764, filed a complaint in the district

court against Local 764, Charles Greenawalt, President

of the Local, the Teamsters Joint Council, and the In-

ternational Union. The complaint challenged the validity

of the fine on the grounds that: (1) the fine unlawfully

limited Pawlak’s right to sue under the Labor Manage-

ment Reporting and Disclosure Act § 101(a)(4) and

(2) Pawlak had been denied a fair hearing by the union

tribunals. Pawlak and Stafford also sought injunctive

been rendered or who claims to be aggrieved, shall be obliged

to exhause 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 sub-

ordinate body of any officer or employee thereof.

Article XIX, Section 12(b) provides;

Where a member, officer, elected Business Agent, Local Union,

Joint Council or other subordinate body, before or following

exhaustion of all remedies provided for within the Inter-

national Union, resorts to a court of law and loses his or its

cause therein, all costs and expenses incurred by the Interna-

tional Union may be assessed against such individual, Local

Union, Joint Council or other subordinate body, in the nature

of a fine, subject to all penalties applicable where fines remain

unpaid.

Where such court action is by an individual or by a Local

Union, Joint Council, or other subordinate body against a Local

Union, Joint Council or other subordinate body, the foregoing

provision in respect to the payment of costs and expenses shall

be applicable in favor of the Local Union, Joint Council or other

subordinate body proceeded against in court.

5a

relief against enforcement of § 12(b) of the Constitution

of the International Brotherhood of Teamsters, an order

requiring that notice of the decision be published in the

monthly International Teamsters magazine, and punitive

damages.

The district court denied a motion by Local 764 and

Greenawalt to dismiss Pawlak’s complaint, although it

did dismiss the fair hearing allegations. As to the latter

point, the court believed that because the underlying facts

were not in dispute, a transcript of the proceedings was

not necessary for the court to decide whether Pawlak’s

statutory rights had been violated. Pawlak v. Greenawalt,

464 F. Supp. 1265, 1271 (M.D. Pa. 1979).? Local 764 then

filed a counterclaim seeking an order directing Pawlak to

pay the fine of $2,635 that had been imposed by the union

tribunals.

All parties thereafter moved for summary judgment.

The district court granted the plaintiffs’ motion and de-

nied the defendants’ motion. Pawlak v. Greenawalt, 477

F’. Supp. 149, (M.D. Pa. 1979). We affirm.

II.

Section 101(a) (4) of the Labor Management Reporting

and Disclosure Act, 29 U.S.C. 411(a) (4) (1976), also

referred to as the Landrum-Griffin Act, specifically pro-

tects the right of a union member to sue his union. The

Act provides that:

No labor organization shall limit the right of any

member thereof to institute an action in any court

The only restriction on this protection is contained in the

clause which states:

2 Because of our decision that the Union could not lawfully

fine Pawlak for failing to exhaust internal procedures, we need not

reach the issue whether Pawlak was denied a fair hearing.

6a

Provided, that any such member may be required to

exhaust reasonable hearing procedures (but not to

exceed a four-month lapse of time) within such or-

ganization, before instituting legal or administra-

tive procedures against such organizations or any

officer thereof...

The union contends that the fine imposed on Pawlak for

his failure to exhaust internal remedies was lawful un-

der the above proviso.

Although the language of the clause left unclear

whether Congress intended the courts or the unions to

implement it, the proviso has since been interpreted as

empowering the courts to enforce it. The Supreme Court

addressed the issue in NLRB v. Industrial Union of

Marine and Shipbuilding Workers, 391 U.S. 418 (1968).

There, an employee was expelled from the union for fil-

ing charges with the National Labor Relations Board

(NLRB) without first utilizing internal union proce-

dures. The Supreme Court concluded that his expulsion

violated § 8(b) (1) (A) of the National Labor Relations

Act. In reaching its decision, the Court reviewed the leg-

islative history of § 101(a) (4) of the Landrum Griffin

Act and interpreted the proviso as follows:

We conclude that “may be required” [the words in

the proviso] is not a grant of authority to unions

more firmly to police their members but a statement

of policy that the public tribunals whose aid is in-

voked may in their discretion stay their hands for

four months, while the aggrieved person seeks relief

within the union. We read it, in other words, as in-

stalling in this labor field a regime comparable to

that which prevails in other areas of law before the

federal courts, which often stay their hands while a

litigant seeks administrative relief before the appro-

priate agency. (emphasis added)

7a

In Operating Engineers Local 3 v. Burroughs, 417

F.2d 370 (9th Cir. 1969) cert. denied, 397 U.S. 916

(1970), which followed Marine Workers, an employee was

fined by his union because he had brought an action

against the union without first exhausting internal pro-

cedures. The district court held that any discipline im-

posed on the employee for having sued the union was

void. In affirming, the court of appeals declared:

Once it is established that the proviso in 29 U.S.C.

§ 411(a) (4) is a policy guide for the courts and not

a grant of authority for the union, and we think

that at least that much is established by Marine

Workers, supra, then for the purpose of examining

the limits of permissible union discipline we are left

with these words: ‘no labor organization shall limit

the right of any member thereof to institute an action

in any court or in any proceeding before any admin-

istrative agency... .’”

417 F.2d at 372. See also, Lacy v. Highway & Local Mo-

tor Freight Employees Local 667, No. C-74-454 (W.D.

Tenn., filed Apr. 3, 1978), aff'd, Nos. 78-1254, 1255 (6th

Cir., filed Apr. 29, 1980) (holding union discipline for

failure to exhaust unlawful).

The district court in the present case relied on Ma-

rine Workers and Burroughs in deciding that the fine

imposed on Pawlak was an unlawful limitation on his

right to sue the union. The union contends, however,

that this case is distinguishable from Marine Workers

and that Burroughs was wrongly decided.

Specifically, the union argues that in Marine Work-

ers the Supreme Court differentiated suits concerning

purely internal matters (“internal” suits) from those

which “touched a part of the public domain” (‘external”’

suits). According to the union, Marine Workers holds

that a member is exempt from discipline for failing to ex-

8a

haust union remedies only if his suit is of the latter type,

pertaining to the public domain, and not, as in this case,

if the suit is strictly internal.

The issue before the Court in Marine Workers was

whether the union had violated § 8(b) (1) (A) of the Na-

tional Labor Relations Act by expelling an employee for

the earlier charges he had filed with the NLRB which

alleged that the union unlawfully caused his employer to

discriminate against him. In the context of that case, a

distinction between external and internal suits was rele-

vant. As the Supreme Court noted, the proviso to § 8

(b) (1) (A) preserves to a union “the right of a la or or-

ganization to prescribe its own rules with respect to the

acquisition or retention of membership therein” and

“thus § 8(b) (1) (A) assures a union freedom of self reg-

ulation where its internal affairs are concerned.” 391

U.S. at 423, 424. The Supreme Court determined, how-

ever, that “the proviso in § 8(b) (1) (A) ... is not so

broad as to give the union power to penalize a member

who invokes the protection of the Act for a matter that is

in the public domain and beyond the internal affairs of

the union.” 391 U.S. at 425.

In its Burroughs decision, the Ninth Circuit rejected

the distinction between internal and external suits for

the purpose of § 101(a) (4). Because of this, the union

here urges that Burroughs was wrongly decided. Bur-

roughs arose in the context of a suit under § 101(a) (4)

rather than § 8(b) (1) (A). The court there noted that

§ 101(a) (4) refers to “an action in any court,” and that

nothing in the statute distinguishes between external

and internal actions. Further, the Burroughs court

stated that the right to sue under § 101(a) (4) would be

less than fully protected if a member were required to

make a pre-suit determination as to whether the action

was internal or external. See also, Ross v. International

Brotherhood of Electrical Workers, 544 F.2d 1022, 1024

(9th Cir. 1976).

9a

We agree with the Ninth Circuit that the internal/

external distinction is not relevant to suits brought under

the Landrum-Griffin Act which, unlike the National

Labor Relations Act, was designed specifically to regulate

internal union affairs. Thus we hold that Pawlak’s right

to sue in this case was fully protected by § 101(a) (4)

regardless of whether the suit is considered external or

internal.*

The union’s final argument in support of the validity

of §12(b) of the International Constitution is that the

section is a compensatory measure that is necessary to

advance the public policy favoring exhaustion of union

remedies. Although we recognize the importance of the

exhaustion doctrine, we do not agree that §12(b) is

indispensable to its operation, in light of the adequate

safeguards that already exist.

As evidenced by this case, a member who cannot

produce a valid reason for failing to exhaust union reme-

dies is likely to have his suit dismissed. Moreover, if the

member acted in bad faith in suing prior to exhausting

internal procedures, the court might award attorneys

fees to the union.* Here, the district court specifically

found that the suit was not initiated in bad faith. 477 F.

Supp. at 151.

Nor are we pursuaded by the union’s argument that

it imposed the fine as a compensatory matter only after

3 Even if the internal/external distinction were applied in this

case, Pawlak’s original suit might be classified as an external one.

In Marine Workers, the suit was considered external because it im-

plicated the employer as well as the union, and raised issues that

could not be fully explored in internal union proceedings. Here, too,

the employer was named as a defendant in the original complaint

and thus the suit included issues that were not purely internal to

the union.

*Cf. Alyeska Pipeline Service Co. v. Wilderness Society, 421

U.S. 240, 258-59 (1975).

10a

the district court had dismissed Pawlak’s original com-

plaint for failure to exhaust. Allowing the union to re-

cover attorneys fees in a case where the member acted in

good faith would significantly limit the protections af-

forded by § 101(a) (4). The exhaustion requirement is

not absolute; rather, its application is left to the dis-

eretion of the district court, based upon the facts of the

particular case, Marine Workers, 391 U.S. at 426 fn. 8;

see generally J. Bellace & A. Berkowitz, The Landrum

Griffin Act Twenty Years of Federal Protection of Union

Members’ Rights 58-63 (University u! Pennsylvania, The

Wharton School, Industrial Research Unit 1979).

The prospect that a union member who sues his union

would risk liability under §12(b) for attorneys fees

incurred by the union, in the event the court required

the member to exhaust internal remedies, would, we be-

lieve, chill union members in the exercise of their statu-

tory right to sue the union. This would undermine the

very purpose of § 101(a) (4). See Ryan v. International

Brotherhood of Electrical Workers, 361 F.2d 942 (7th

Cir.), cert. denied, 885 U.S. 9385 (1966). Consequently,

we conclude that §12(b) of the International Constitu-

tion is invalid in that it restricts the right of a union

member to sue his union in a manner that is inconsis-

tent with the Landrum-Griffin Act. The fine imposed on

Pawlak by the union, pursuant to § 12(b), is also invalid.

III.

In its order of September 27, 1979 the district court

permanently enjoined the Teamsters from enforcing § 12

(b) of the International Constitution. The union ob-

jects to the scope of the injunction and requests that it

be narrowed in two respects. First, the union asks that

the injunction be applied only to individual union mem-

bers, and that it not prohibit the union from imposing a

fine against an officer, local union, joint council, or other

lla

subordinate body. Second the union asks that the in-

junction be restricted so that it is applicable only in the

United States, thereby permitting § 12(b) to be enforced

against members and subordinate union bodies located

in Canada.

We do not believe that the district court erred in en-

joining the union from enforcing § 12(b). The district

court found § 12(b) facially invalid because it unlawfully

restricted the right of Pawlak and other union members

to sue the union. Consequently, it enjoined the union

from enforcing that section. Nothing in the district

court’s opinion indicates, however, that the court either

addressed or decided the question whether officers, local

unions or other union bodies were “members” protected

by § 101(a) (4). We do not read the opinion of the dis-

trict court as holding that a more narrowly drawn pro-

vision dealing only with officers and other union bodies

would be unlawful, nor do we find it necessary to pass

upon that important question at this time.®

Nor do we consider it necessary to limit application

of the injunction to the United States. This suit con-

cerns only an American union member; the union’s abil-

ity to fine non-American members is not at issue. We do

not interpret the injunction as prohibiting the union

from enacting and enforcing a provision similar to

§ 12(b) but applicable solely to foreign members. Ac-

cordingly, we need not reach the question whether the

union could be so enjoined under the Landrum-Griffin

Act.

5 It should be noted the union neither raised this objection be-

fore the district court nor moved the court for an amendment of

the injunction in this respect. Such an objection should have been

raised with the district court in the first instance. See Rhoads v.

Ford Motor Company, 514 F.2d 981, 983-84 (3d Cir. 1975).

12a

IV.

The judgment of the district court will be affirmed.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

13a

UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

Civil No. 78-1035

JOHN A. PAWLAK, et al.,

Plaintiffs

vs.

CHARLES E. GREENAWALT, et al.,

DefenJlants

Complaint Filed 10/23/78

(Judge Muir)

APPEARANCES:

For Plaintiffs

Bruce F. Bratton, Esq.

224 North Second St.

Harrisburg, Pa. 17101

Paul Alan Levy, Esq.

Arthur L. Fox, III, Esq.

Public Citizen Litigation Group

Suite 700

2000 P Street, N.W.

Washington, D.C. 20036

For Defendant Teamsters Joint Council No. 53

Edward Davis, Esq.

1300 Two Penn Center Plaza

Philadelphia, Pa. 19103

For Defendants Greenawalt and Local Union 764

Ira Weinstock, Esq.

Handler, Gerber & Weinstock

Suite 500

301 Market St.

Harrisburg, Pa. 17101

14a

For Defendant International Brotherhood of Team-

sters, Chauffeurs, Warehousemen, and Helpers of

America

John J. Dunn, Sr., Esq.

Robert Mariani, Esq.

Dunn, Byrne and Coviello

234 Scranton Life Bldg.

Scranton, Pa. 18500

Robert M. Baptiste, Esq.

Gary S. Witlen, Esq.

25 Louisiana Ave., N.W.

Washington, D.C.

15a

UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

Civil No. 78-1035

JOHN A. PAWLAK, et al.,

Plaintiffs

vs.

CHARLES E. GREENAWALLT, et al.,

Defendants

Complaint Filed 10/23/78

(Judge Muir)

OPINION

MUIR, District Judge.

Plaintiffs have brought this action alleging violations

of the Labor-Management Reporting and Disclosure Act

of 1959, 29 U.S.C. §§ 401 et seq. (the Act). Plaintiffs

contend that the Defendants violated 29 U.S.C. § 411(4)

(a) by fining Pawlak $2635.00 to recover the costs to

Local 764 in defending a federal court action brought by

Pawlak and dismissed because Pawlak did not exhaust

internal union remedies. Plaintiffs initially sought com-

pensatory and punitive damages as well as declaratory

and injunctive relief. On June 26, 1979, the Court, upon

consent of all parties, issued an order which preserved as

the only issue for decision the Defendants’ authority to

impose and collect the fine.

On June 11, 1979, Plaintiff filed a motion for sum-

mary judgment accompanied by a brief. On June 26,

1979, defendants Greenawalt and Local 764 filed a brief

in opposition to Plaintiffs’ motion for summary judg-

ment. On July 5, 1979, defendants Greenawalt and Local

16a

764 filed a motion for summary judgment accompanied

by a brief. On July 13, 1979, Defendant International

Brotherhood of Teamsters, Chauffeurs, Warehousemen,

and Helpers of America (Teamsters) filed a motion for

summary judgment accompanied by a brief. On July 20,

1979, Plaintiffs filed briefs in opposition to Greenawalt’s

and the Local’s motion and in reply to the brief in op-

position to Plaintiffs’ motion filed by Greenawalt and the

Local. On July 30, 1979, Plaintiffs filed a brief in op-

position to the Teamster’s motion for summary judg-

ment. On August 7, 1979, the Teamsters filed"@ brief in

reply to Plaintiffs’ brief. For the reasons which follow,

the Court will grant Plaintiffs’ motion for summary

judgment and deny Defendants’ motions for summary

judgment.

Plaintiffs’ contention can be simply stated. Title 29

§ 411(a) (4) provides:

“Protection of the right to sue—No labor organiza-

tion shall limit the right of any member thereof to

institute an action in any court .. .: Provided, That

any such member may be required to exhaust

reasonable hearing procedures (but not to exceed a

four-month lapse of time) within such organization,

before instituting legal .. . proceedings against such

organizations or any officer thereof.”

Plaintiffs maintain that the Teamsters Constitution,

Article XIX, §12(b), which provides that if a union

member institutes a court action without exhausting

internal remedies and is unsuccessful the local may re-

cover all costs and expenses incurred by the Union in

defending the action, is a limit on Pawlak’s right to

institute a court action.

Defendants argue that without the authority to recover

the costs of defending an action such as Pawlak’s the

proviso in 29 U.S.C. § 411(a) (4) will be ineffective to

17a

prevent court actions by union members before they

attempt to exhaust union remedies. In National Labor

Relations Board vs. Industrial Union of Marine & Ship-

building Workers of America, 391 U.S. 418, 426 (1968),

the United States Supreme Court held that the provision

in §411(a) (4) relating to exhaustion of reasonable

hearing procedures

“,. . is not a grant of authority to unions more

firmly to police their members but a statement of

policy that the public tribunals whose aid is invoked

may in their discretion stay their hands for four

months, while the aggrieved person seeks relief from

the union.”

It is the Court’s view that inasmuch as a court has dis-

cretion whether to require exhaustion, the Teamsters’

constitution limits the right of a member to sue by plac-

ing the member in a position of having to guess whether

the Court will require exhaustion in a particular case.

The Court recognizes that Marine Workers involved a

complaint to the NLRB which the Supreme Court found

to encompass broader public policy considerations than

an internal union dispute. Because Congress has seen

fit to legislate in the area of internal union rights, the

Court concludes that a dispute of that nature is likely to

be of significant concern.

The Court of Appeals for the Ninth Circuit, in Oper-

ating Engineers Local Union No. 3 vs. Burroughs, 417

F.2d 370 (9th Cir. 1969), cert. denied, 397 U.S. 916

(1970), held that it was a violation of § 411(a) (4) for a

union to impose a fine upon a member who unsuccess-

fully sued the union without having exhausted internal

union remedies. Defendants seek to distinguish Bur-

roughs on the grounds that the fine in the case presently

before this Court was not punishment because it repre-

sented only the costs incurred by the union in defending

18a

Pawlak’s prior action. It is the Court’s view that the

label attached to the imposition of a monetary penalty

is immaterial. Section 411(a) (4) prohibits a union from

limiting the rights of its members to sue. The imposi-

tion of the Local’s costs of defending the action, a rem-

edy which is granted by a Court in only extreme cases

and which the Local 764 did not request after Pawlak’s

first action was dismissed, is, as a matter of law, a limit

on the member’s right to sue.

Defendants also maintain that Pawlak’s prior action

was instituted in bad faith. There is, however, no evi-

dence in the record to support that assertion. Defendants

concede that the decision whether to require exhaustion

of internal union remedies rests in the discretion of the

court. Inasmuch as Pawlak’s supposed lack of good faith

is based solely on his failure to exhaust internal union

remedies, the Court concludes that the Defendants have

not established that the prior action was commenced in

bad faith. It is also the Court’s view that Pawlak need

not establish that the prior action was commenced in

good faith. To the extent Defendants fear that without a

good faith requirement they will be subject to the

harassment of numerous lawsuits, it is the Court’s view

that the remedies available to all litigants, such as an

award of attorney’s fees in the appropriate case, is suf-

ficient protection for these defendants. The Court finds

no basis in the statute which provides an exception to

the clear language of § 411(a) (4) prohibiting the union

from placing limits on the right of its members to sue.

In addition to a declaratory judgment declaring De-

fendants’ actions unlawful and an injunction prohibiting

Defendants from collecting the fine and enforcing § 12

(b) of Article XIX of the Teamsters constitution, Plain-

tiffs seek an order directing Teamsters to publicize this

order in their monthly magazine as well as other relief

directed toward notifying locals and members of the

19a

Court’s decision. It is the Court’s view that relief of

this kind is necessary because the existence of § 12(b)

has a chilling effect on the exercise of members’ rights

to file suit. Counsel for Plaintiffs and the Teamsters will

be directed to attempt to agree on the form of notice,

and its method of publication, and shall file an agreed

upon notice and proposal for publication within 20 days

of the date of this order. If they are unable to agree,

each party shall file its proposed notice and proposal for

publication within 30 days from the date of this Order.

An appropriate order will be entered.

/s/ Muir

MUIR,

U.S. District Judge

DATED: September 27, 1979

20a

UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

Civil No. 78-1035

JOHN A. PAWLAK, et al.,

Plaintiffs

Vv.

CHARLES E. GREENAWALT, et al.,

Defendants

Complaint Filed 10/23/78

(Judge Muir)

November 16, 1979

ORDER

THE BACKGROUND OF THIS ORDER IS AS

FOLLOWS:

On September 27, 1979, the Court issued an order en-

joining the Defendant International Brotherhood of

Teamsters, Chauffeurs, Warehousemen, and Helpers of

America (Teamsters) from enforcing Article XIX, § 12

(b) of their constitution because § 12(b) violates § 101

(a) (4) of the Labor-Management Reporting and Disclo-

sure Act of 1959, 29 U.S.C. § 411(a) (4). That order di-

rected counsel for Plaintiffs and the Teamsters to attempt

to agree upon a form of notice and method of publication

whereby the Teamsters would notify its members of the

Court’s decision. Failing agreement, the parties were

to submit their proposals within 30 days of September

27, 1979. Counsel for Plaintiffs filed their proposal on

October 26, 1979. Counsel for the Teamsters timely filed

2la

its proposal on Ociober 29, 1979. Because of clerical

problems, the Teamsters’ proposal did not come to the

Court’s attention until after the Court, on November 8,

1979, issued an order directing the Teamsters to show

cause why it should not be held in contempt for failure to

comply with the Court’s order of September 27, 1979. In

view of the fact that the Teamsters did timely comply

with the Court’s order, the Court will rescind its Rule

to Show Cause.

Plaintiffs request two forms of notification of the

Court’s order of September 27, 1979. They request that

the Court order the Teamsters to publish a notice in the

Teamsters’ magazine, International Teamster, and that

the Court direct the Teamsters to notify officials of

Teamster locals by mail and by means of the Teamsters’

computer system. Plaintiffs contend that the second

notification is necessary to prevent local officials from

intimidating union members. It is the Court’s view that

the record in this case does not support a remedy beyond

notification to Teamster members by means of publica-

tion in the International Teamster. There is nothing in

the record to justify Plaintiffs’ contention that union

members have or will be subject to threats and intimida-

tion by officials of Teamster locals.

The parties were able to agree that the notice should

be placed in the first half of the International Teamster.

In addition, the parties agree that the text shall be in

the same black type face as is normally used for news

articles and that the article shall be enclosed by a border.

Parties, however, were not able to agree to the content

of the notice and several other matters relating to its

presentation. After reviewing the proposed notices, the

Court will fashion its own notice based upon the parties’

proposals.

22a

NOW, THEREFORE, IT IS ORDERED THAT

1. The Court’s rule to show cause dated November 8,

1979 is rescinded.

2. Defendant International Brotherhood of Teamsters

shall publish in the January, 1980 issue of the Interva-

tional Teamster, Volume 77, No. 1, the text of para-

graphs 3 and 4 of the notice set forth in Appendix A,

according to the following specifications:

2.1 The text shall be set in the same black type-

face as is normally used for news articles and the

topical heading, “LEGAL NOTICE TO ALL MEM-

BERS” shall be in red, upper-case letters, no less

than 12-point type, and the headline shall be in

black letters, no less than 18-point type.

2.2 The text shall be boxed within a black border.

2.3 The article shall appear in the first half of

the magazine.

2.4 The article shall be listed by its headline

in the Table of Contents.

2.5 Plaintiffs’ counsel shall be afforded the op-

portunity to see the galley proofs prior to publica-

tion.

/s/ Muir

MUIR,

U.S. District Judge

23a

APPENDIX A

LEGAL NOTICE TO ALL MEMBERS

Federal Court Voids Provision In IBT Constitution as

Infringing Upon Right to Sue Union

The United States District Court for the Middle Dis-

trict of Pennsylvania, by order of Judge Malcolm Muir,

has invalidated as violating the Labor-Management Re-

porting and Disclosure Act of 1959 a provision in the

IBT Constitution which authorizes the union to require

members to reimburse the union for its attorney fees when

their suits are unsuccessful. The Court not only struck

down Article XIX, Section 12(b), the provision in ques-

tion, but found that its presence in the Constitution un-

lawfully discouraged members from bringing legal ac-

tions. The IBT has taken an appeal to the United States

Court of Appeals for the Third Circuit. The filing of the

appeal in no way affects the validity of Judge Muir’s

order prohibiting the enforcement of § 12(b). The IBT

was ordered to publish this notice informing the Union

membership that the provision had been set aside.

The invalidated provision reads as follows:

Where a member, officer, elected Business Agent,

Local Union, Joint Council or other subordinate body,

before or following exhaustion of all remedies pro-

vided for within the International Union, resorts to

a court of law and loses his or its cause therein, all

costs and expenses incurred by the International

Union may be assessed against such individual, Local

Union, Joint Council or other subordinate body, in

the nature of a fine, subject to all penalties applic-

able where fines remain unpaid.

Where such court action is by an individual or by

a Local Union, Joint Council or other subordinate

24a

body against a Local Union, Joint Council or other

subordinate body, the foregoing provision in respect

to the payment of costs and expenses shall be ap-

plicable in favor of the Local Union, Joint Council or

other Subordinate body proceeded against in court.

25a

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

Nos. 79-2587 & 79-2780

PAWLAK, JOHN A. AND STAFFORD, JAMES,

V.

GREENAWALT, CHARLES E., LOCAL UNION No. 764, TEAM-

STERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS,

TEAMSTERS JOINT COUNCIL NO. 53 AND INTERNATIONAL

BROTHERHOOD OF 'TEAMSTERS, CHAUFFEURS, WARE-

HOUSEMEN AND HELPERs,

International Brotherhood of Teamsters,

Chauffeurs, Warehousemen and Helpers of

America,

Charles E. Greenawalt and Local Union No.

764

Teamsters, Chauffeurs, Warehousemen and

Helpers,

Appellants

On Appeal from the United States District Court

For the Middle District of Pennsylvania

(D.C. Civil No. 78-1035)

Present: ADAMS, VAN DUSEN AND HIGGINBOTHAM,

Circuit Judges

26a

JUDGMENT

This cause came on to be heard on the record from

the United States District Court for the Middle District

of Pennsylvania and was argued by counsel on June 10,

1980.

On consideration whereof, it is now here ordered and

adjudged by this Court that the judgment of the said

District Court, filed September 27, 1979, be, and the same

is hereby affirmed. Costs taxed against appellants.

ATTEST:

/s/ [Illegible]

Clerk

August 20, 1980

27a

STATUTORY PROVISIONS

29 U.S.C. § 411 (a) (4) provides:

No labor organization shall limit the right of any

member thereof to institute an action in any court,

or in a proceeding before any administrative agency,

irrespective of whether or not the labor organization

or its officers are named as defendants or respond-

ents in such action or proceeding, or the right of

any member of a labor organization to appear as a

witness in any judicial, administrative, or legisla-

tive proceeding, or to petition any legislature or to

communicate with any legislator: Provided, That any

such member may be required to exhaust reasonable

hearing procedures (but not to exceed a four-month

lapse of time) within such organization, before in-

stituting legal or administrative proceedings against

such organizations or any officer thereof: And pro-

vided further, That no interested employer or em-

ployer association shall directly or indirectly finance,

encourage or participate in, except as party, any

such action, proceeding, appearance, or petition.

29 U.S.C. § 412 provides:

CIVIL ENFORCEMENT

Section 102. Any person whose rights secured by the

: provisions of this title have been infringed by any

violation of this title may bring a civil action in a

district court of the United States for such relief

(including injunctions) as may be appropriate. Any

such action against a labor organization shall be

brought in the district court of the United States

for the district where the alleged violation occurred,

or where the principal office of such labor organiza-

tion is located.

28a

UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

Civil No. 78-1035

JOHN A. PAWLAK, ET AL.,

Plaintiffs,

Vs.

CHARLES E,. GREENAWALT, ET AL.,

Defendants

Complaint Filed 10/23/78

(Judge Muir)

ORDER

1. Defendants’ motions for summary judgment are

denied.

2. Plaintiffs’ motion for summary judgment is granted.

3. Article XIX, $12(b) of the Teamsters’ Constitu-

tion violates 29 U.S.C. § 411(a) (4).

4. The fine imposed on Pawlak violates 29 U.S.C.

§ 411 (a) (4).

5. Defendants are permanently enjoined from enforc-

ing Teamsters’ Constitution, Article XIX, § 12(b).

6. Defendants are permanently enjoined from collect-

ing or attempting to collect the fine of $2635 imposed on

Pawlak.

7. Counsel for Plaintiffs and the Teamsters shall at-

tempt to agree on a form of notice of this order to be

published by the Teamsters as well as a proposal for pub-

lication and shall file an agreed upon notice and pro-

posal for publication within 20 days from the date of

29a

this order. If they are unable to agree, each party shall

submit its form of notice and proposal for publication

within 30 days from the date of this order. The Court

will then issue an order with respect to the publication

of the notice.

8. The pre-trial conference for this case scheculed for

November 1, 1979 is cancelled.

/s/ Muir

MUIR

U.S. District Judge

DATED: September 27, 1979