Operating Engineers Local Union No. 3 v. Burroughs

RUSSELL E. SMITH, District Judge.

We are here concerned with the extent to which the “protection of the right to sue” section of the “Bill of Rights of Members of Labor Organizations” 1 lim*371its the power of a union to discipline its members for suing a union and its officers.

The plaintiff and appellee, B. R. Burroughs (Burroughs) was a member of appellant, Operating Engineers Local Union No. 3 (Local), a local union affiliated with the appellant, International Union of Operating Engineers (International). The Local conducted an election of officers in August of 1966. The ballots were mailed August 10, 1966 and were opened August 26, 1966. Before the election Burroughs complained of the election procedures to various officers and committees of the Union, and on August 25th secured an order restraining the opening of the ballot box from a Superior Court in California. On September 8, 1966, the Superior Court dissolved the temporary restraining order, and on the 9th of September Burroughs secured a restraining order from a United States District Court. This order was dissolved on September 13th and the action was dismissed as moot on September 14,1966.

Subsequently Burroughs was charged with violations of Article XVII of the Constitution of the International2 for filing the state and federal actions. He was tried by the Local and fined. Upon appeal to the International the “penalties” imposed were “affirmed” but their enforcement was stayed for a period of three years, at the end of which time they were to be vacated if Burroughs did not in the interim violate any provisions of Article XVII, Section 4, of the International Constitution.

This action was brought by Burroughs to restrain the enforcement of the penalties and for actual and punitive damages. The District Court granted plaintiff’s motion for a partial summary judgment, adjudging the discipline imposed on Burroughs by the Union to be void and enjoining the Union from in any way disci*372plining Burroughs for having filed the actions in state and federal court.

The first question posed by this appeal is whether a union may discipline a member who initiates a court action against it or its officers without spending at least four months in the exhaustion of the Union’s internal hearing procedures. The answer to this question turns upon the meaning of 28 U.S.C. § 411(a) (4).

In Industrial Union of Marine and Shipbuilding Workers of America, AFL-CIO v. N. L. R. B., 379 F.2d 702 (3 Cir. 1967), the Court of Appeals for the Third Circuit specifically held that section 411 (a) (4) gave the Union authority to require that the members resort to reasonable intra-union procedures. On appeal the Supreme Court, speaking through Mr. Justice Douglas, just as specifically rejected the position of the Third Circuit and said:

“We conclude that ‘may be required’ 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 within the union. We read it, in other words, as installing 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 appropriate agency.” National Labor Relations Board v. Industrial Union of Marine-Shipbuilding Workers of America, 391 U.S. 418 at 426, 88 S.Ct. 1717, 1723, 20 L.Ed.2d 706 (1968).3

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 to the union, and we think that at least this 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 a proceeding before any administrative agency.” 29 U.S.C. § 411(a) (4).

Appellants urge that in this case the rights which Burroughs sought to protect were member rights as distinguished from employee rights, that the subject matter of the state and federal court actions concerned intra-union matters and did not touch the public domain, and that the actions in the state and federal courts were not brought in good faith,4 and that for each or all of these facts Burroughs should be denied relief. Although appellant’s position is not foreclosed by existing case 5 authority we do not adopt it.

*373Section 411(a) (4) speaks of — “an action in any court.” The word “action” is in no way limited and there is nothing in the Act which distinguishes between suits involving member6 as opposed to employee rights, between suits involving internal as opposed to external union problems, or between suits brought in good faith as opposed to those brought in bad faith. The right to sue is something less than fully protected7 by the “protection of the right to sue” section of the “Bill of Rights of Members of Labor Organizations” if a member of a union is required to make a pre-suit determination that the union may not discipline him for bringing it because upon a post-suit examination of the matter it will appear to some union official or judge that the member’s action was brought in good faith, that the suit concerned affairs of the union touching some part of the public domain affected by the Act8 rather than interna] union affairs, or that the rights sought to be protected were “employee” rather than “member” rights. We believe that the language of the Act requires us to reject the considerations urged upon us by appellants and that the policy of the Act is served by such rejection.

What is said here does not deny the Union freedom of self-regulation. Courts have refused to meddle in union management and we do not suggest that they should not continue to refuse. We agree with Mr. Justice Harlan, who said in a concurring opinion in Marine Workers:

“Finally, it is appropriate to emphasize that courts and agencies will frustrate an important purpose of the 1959 legislation if they do not, in fact, regularly compel union members ‘to exhaust reasonable hearing procedures’ within the union organization. Responsible union self-government demands, among other prerequisites, a fair opportunity to function.” N. L. R. B. v. Marine Workers, 391 U.S. at 429, 88 S.Ct. at 1724.

Likewise, we do not condone the use of lawsuits for harassment purposes and do not suggest that a union would not have all of the rights which the law gives to those who are so harassed.9 What we do say is that the freedom to sue is precious; that the winner in a lawsuit should not have the right to discipline the loser; that the potential suitor should not be subjected to the threat of such discipline; and that by virtue of § 411(a) (2) these principles now apply to labor unions.

29 U.S.C. § 412 provides that rights secured by the Bill of Rights may be protected by an action in the district court for such relief, including injunctions, as may be appropriate. Given this statute, may a court refuse an injunction in an otherwise proper case on the ground that the plaintiff has unclean hands? If we are correct in our conclusions that there are no exceptions to the law forbidding labor unions from disciplining their members for bringing actions, then the attempts to discipline Burroughs in this case were illegal regardless of his good faith or lack of it. In this case the duty to enjoin the illegal acts stems from a specific statutory grant and not from *374the general equitable powers of the court. For the same reasons that we refuse to read any limitations into § 411(a) (4), we refuse to read limitations into § 412.

The judgment is affirmed.

. “(a) Every member of a labor organization shall have equal rights and privileges within such organization to nominate *371candidates, to vote in elections or referendums of the labor organization, to attend membership meetings, and to participate in the deliberations and voting upon the business of such meetings, subject to reasonable rules and regulations in such organization’s constitution and by-laws.”

* * * ❖

“(4) 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 respondents 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 legislative 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 instituting legal or administrative proceedings against such organizations or any officer thereof: And pro vided 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.”

“(b) Any provision of the constitution and bylaws of any labor organization which is inconsistent with the provisions of this section shall be of no force or effect.” 29 U.S.C. § 411(a) (4) & (5) (b).

. “No suit or other action at law or equity shall be brought in any court and no proceeding shall be initiated before any administrative agency by any member, officer or subdivision of the International Union of Operating Engineers until and unless all rights, remedies and reasonable provisions for hearing, trial and appeal within the Organization shall have been properly followed and exhausted by the member, officer or subdivision complaining. This provision shall only require resort to internal remedies for a period not exceeding four (4) months. Any member violating this provision, shall, in addition to the penalties prescribed in the Constitution and Ritual, be subject to a fine equal to the full amount of the costs incurred in the defense of any such action by the Union, together with such costs additional as the court may fix or assess against said member.” Section 4, Article XVII, Constitution of the International Union of Operating Engineers.

. This conclusion had been reached by the Courts of Appeals for the District of Columbia, and the Seventh Circuit. Roberts v. N.L.R.B., 121 U.S.App.D.C. 297, 350 F.2d 427 (1965); Ryan v. I.B.E.W., 361 F.2d 942 (7 Cir. 1966).

. The District Court concluded that the doctrine of “clean hands” did not preclude relief. If there were a relevant issue of good faith, the summary judgment could not stand in this case because conflicting inferences could be drawn from the record.

. The rights involved in Marine Workers were employee rights protected by § 7 of the National Labor Relations Act (29 U.S.C. § 157) and the court does say: “Thus § 8(b) (1) (A) assures a union freedom of self-regulation where its legitimate internal affairs are concerned. But where a union rule penalizes a member for filing an unfair labor practice charge with the Board other considerations of public policy come into play.” Marine Workers, supra, 391 at 424, 88 S.Ct. at 1721.

And: “We also conclude, for reasons stated earlier in this opinion, that where the complaint or grievance does not concern an internal union matter, but touches a part of the public domain covered by the Act, failure to resort to any intra-union grievance procedure is not ground for expulsion from a union.” Marine Workers supra, at 428, 88 S.Ct. at 1724.

In Ryan v. International Brotherhood of Electrical Workers, 361 F.2d 942 (7 Cir. 1966) the basic controversy did not *373relate to an exclusively internal union matter, and in Roberts v. N.L.R.B., 121 U.S.App.D.C. 297, 350 F.2d 427 (1965), the rights involved were employee rights. Both Ryan and Roberts suggest that the element of good faith might be considered if the suits were brought to harass.

. “411(a) (4) uses the word “member”, not “employee”.

. See the concurring opinion of Mr. Justice Harlan in N.L.R.B. v. Marine Workers, 391 U.S. 418, 428, 88 S.Ct. 1717, 20 L.Ed.2d 706 (1968); Ryan supra, note 3.

. Even after the fact this problem is troublesome. See the differing opinions in local 283 v. United Automobile Aircraft, etc., 145 NLRB 1097 (1964).

. “Authorities to show that equity will interfere to restrain irreparable mischief, or to suppress oppressive and interminable litigation, or to prevent multiplicity of suits, is unnecessary, as that proposition is universally admitted.” Insurance Company v. Bailey, 13 Wall. 616, 20 L.Ed. 501 (1871).