specially concurring in part and dissenting in part.
We granted certiorari to review four issues in this case:
1. Whether the court of appeals erred in determining that the jury should have been instructed that the petitioners must demonstrate “clear proof’ that the respondent' authorized or ratified its members’ acts of outrageous conduct;
2. Whether the court of appeals erred in reversing the jury’s determination and ordering on remand that the district court give additional instructions based upon Farmer v. United Bhd. of Carpenters, Local 25, 430 U.S. 290, 97 S.Ct. 1056, 51 L.Ed.2d 338 (1977);
3. “Whether the court of appeals erred in reversing the district court’s grant of a directed verdict against the respondent on its claims for strike fines; and
4. Whether the court of appeals erred in reversing the jury’s determination that the respondent was liable to the petitioners on their counterclaims for breach of contract and outrageous conduct, and instructing the district court to examine on remand whether the petitioners have standing to bring these counterclaims and to contest the fairness of the respondent’s trial proceedings that resulted in the respondent’s fines.
I join the majority’s holdings on issues 1 and 2 that the Union’s authorization or ratification of the tortious acts of its members must be established by a preponderance of the evidence rather than by clear proof and that the jury was properly instructed under Farmer. I write separately on issue 1, however, to highlight the affirmative indicators of legislative intent, not discussed by the majority, that the “clear proof’ standard should not apply in establishing the vicarious liability of a union for the actions of its members.
I respectfully dissent from the majority’s holdings on issues 3 and 4, which affirm the trial court’s decision excusing the Vikman’s failure to exhaust union remedies and which reinstate the trial court’s directed verdict against Local 1269 on its strike fine claims. I would uphold the judgment of the court of appeals and return the case to that court with directions to remand to the trial court for (1) dismissal of the Vikmans’ breach of contract defenses and entry of judgment in favor of Local 1269 on its strike fine claims, and (2) a new trial of the Vikmans’ counterclaims of willful breach of contract and outrageous conduct.14
I.
Burden of Proof
As the majority indicates, state courts are not bound to follow the “clear proof’ standard required by section 6 of the Norris-LaGuardia Act, 29 U.S.C. § 106 (1988), for establishing ratification or authorization by a union of the actions of union members. Maj. op. at 661. The majority points to the silence of the Colorado Labor Peace Act concerning the burden of proof applicable in such circumstances as indicating legislative intent that the burden of proof in section 6 of the Norris-LaGuardia Act should not apply *664in state court actions. Maj. op. at 660.15 While I agree with the majority’s conclusion, I wish to point out additional indicators of legislative intent other than the silence of the general assembly.
In 1933, Colorado enacted its own version of the Norris-LaGuardia Act. 1935 Colo.Stat.Ann., ch. 97, secs. 76-87. The act was substantially similar to the federal version and included a provision closely modeled on section 6 of the federal act.16 That section, however, did not incorporate the clear proof standard of the federal act. Instead, it required participation, authorization or ratification to be demonstrated “by the weight of evidence and without the aid of any presumptions of law or fact.” Id. § 79. Not only did the legislature decline to adopt the “clear proof’ language of the federal act in the state statute, but the analogous state provision was repealed upon enactment of the Labor Peace Act of 1943. See Ch. 131, sec. 26, 1943 Colo.Sess.Laws 417. The Labor Peace Act contains no provisions regarding the burden of proof to be applied in any action brought under its terms.
While there is no legislative history available concerning the enactment of the Labor Peace Act, the terms of the Act indicate a shift in policy which is consistent with a more relaxed standard for proving union participation in tortious acts by its members. While “[t]he driving force behind § 6 [of the Norris-LaGuardia Act] ... was the fear that unions might be destroyed if they could be held liable for damage done by acts beyond their practical control,” Gibbs, 383 U.S. at 736-37, 86 S.Ct. at 1144, the declared policy of the Labor Peace Act recognizes not only the interests of the employee, but also the interests of the employer and the public in labor relations. 1935 Colo.Stat.Ann., ch. 97, sec. 94(1). The Labor Peace Act narrowed *665the scope of union conduct protected under the Norris-LaGuardia Act during labor disputes by limiting the definition of labor dispute. § 94(16). The Act also defined certain employee, as well as employer, activities as unfair labor practices. § 94(6). After its passage, the Labor Peace Act was characterized as “an attempt on the part of government to swing the pendulum in the other direction — to increase the protection afforded the employer and render both capital and labor more responsible to the interest of the public.” See generally, Alvin Weinberger, An Analysis of the Colorado Labor Peace Act, 19 Rocky Mtn.L.Rev. 359, 362 (1947). Application of a more relaxed standard of proof for proof of union participation is consistent with this recognition by the legislature of the need to protect employer and public interests in labor relations.
The final indicator of legislative intent contrary to application of a clear proof standard is the 1971 legislative mandate that:
Any provision of the law to the contrary notwithstanding ... the burden of proof in any civil action shall be by a preponderance of the evidence.
§ 13-25-127, 6A C.R.S. (1987) (emphasis added). The sole exceptions to this statutory rule are for actions “determining the validity of any legislative enactment,” actions where “exemplary damages” are awarded, and where “execution [of the judgment is] against the body of a party against whom the claim is asserted.” Id. By its own terms, this statute substitutes the “preponderance of the evidence” for any other standard in all civil actions. Moreover, the legislature has provided no alternative standard under the Labor Peace Act, even though it has amended provisions of the Labor Peace Act numerous times since the enactment of section 13-25-127. See Ch. 221, sec. 1, 1971 Colo.Sess.Laws 887; Ch. 99, sec. 27, 1972 Colo.Sess.Laws 561; Ch. 34, sec. 12, 1976 Colo.Sess.Laws 297; Ch. 61, sec. 1, Ch. 76, secs. 1, 2, 3, 4, 1977 Colo.Sess.Laws 305, 419, 422, 423; Ch. 64, secs. 24, 26, 28, 125, 1986 Colo.Sess.Laws 470, 471, 502; Ch. 172, sec. 6, 1987 Colo.Sess.Laws 937.
Together, these actions by the general assembly demonstrate its intent to require proof of union ratification or authorization of its members’ tortious acts by a “preponderance of the evidence” rather than by “clear proof.”
II.
Exhaustion
The Yikmans argue, both as a defense to Local 1269’s action to enforce strike fines and as a counterclaim against the Local, that Local 1269 breached the union constitution in its imposition of strike fines. The majority accepts the trial court’s conclusion that “the utilization of Local 1269’s procedures by the Vikmans would be futile” with respect to both the Yikmans’ defense and their counterclaims.17 Thus, the majority holds that the Vikmans were not required to exhaust union remedies before seeking a judicial remedy. Maj. op. at 656.
While I agree with the majority that the trial court’s resolution of the issue of exhaustion is entitled to deference, I would find that the trial court abused its discretion in declining to require either Duane or Edwin Vik-man to exhaust union procedures with respect to his defenses to the union’s strike fine claims. However, I would uphold the trial court’s decision to excuse the Vikmans’ failure to exhaust union remedies for their counterclaim of willful breach of the union constitution on grounds that union remedies would have been inadequate to grant the Vikmans full relief.
The Supreme Court has held that a court may exercise discretion in determining whether a union member should be prohibited from pursuing judicial remedies before exhausting existing union remedies. NLRB v. Marine Workers, 391 U.S. 418, 426, 88 S.Ct. 1717, 1722, 20 L.Ed.2d 706 (1968). On review, then, “the proper inquiry ... is whether [the trial court’s] actions were so manifestly arbitrary or unreasonable as to amount to a clear abuse of discretion.” Colorado Nat’l Bank v. Friedman, 846 P.2d 159, *666167 (Colo.1993). “Abuse of discretion” also may indicate that “the appellate court is simply of the opinion that there was commission of an error of law in the circumstances.” Medina v. District Court, 177 Colo. 185, 186, 493 P.2d 367, 368 (1972). That is the case here.
Factors that a trial court should consider in deciding whether to require exhaustion of internal union remedies include:
first, whether union officials are so hostile to the employee that he could not hope to obtain a fair hearing on his claim; second, whether the internal union appeals procedures would be inadequate either to reactivate the employee’s grievance or to award him the full relief he seeks under § 301 [of the LMRA]; and third, whether exhaustion of internal procedures would unreasonably delay the employee’s opportunity to obtain a judicial hearing on the merits of his claim. If any of these factors are found to exist, the court may properly excuse the employee’s failure to exhaust.
Clayton v. Automobile Workers, 451 U.S. 679, 689, 101 S.Ct. 2088, 2095, 68 L.Ed.2d 538 (1981).18
The first of these factors is dispositive for the majority in this case. The majority points to evidence that: the Vikmans did not receive notice of the meeting where the amount of their fines was set; Local 1269 delayed sending notification of the fines; the trial board relied on information from a biased source to determine the number of days the Vikmans worked during the strike; the trial board selected a California venue for the hearing despite the Vikmans’ residence in Colorado; Local 1269 failed to respond to Duane Vikman’s improperly filed notice of appeal; Gerald Linder, a member of Local 1269’s executive committee, stated that the local was going to “get” the Vikmans; the trial board failed to appoint a union member to represent Edwin Vikman during his hearing; and that another member, Joanne Miller, received a better resolution of her strike fine than did the Vikmans. Maj. op. at 657. The majority construes this evidence to prove the futility of further union proceedings.
A finding of futility requires evidence indicating that “union officials are so hostile to the employee that he could not hope to obtain a fair hearing on his claim.” Clayton, 451 U.S. at 689, 101 S.Ct. at 2095. “Bias” in the proceedings, Johnson v. General Motors Corp., 641 F.2d 1075, 1079 (2d Cir.1980), or that the proceedings are controlled by those against whom the plaintiff is opposed, Semancik v. United Mine Workers, 466 F.2d 144, 150 (3d Cir.1972), will also support a finding of futility.
The evidence in the record does not support a finding of futility, however.19 The *667mere fact that investigatory and adjudicatory functions are performed by the same body does not indicate the bias of adjudicatory proceedings. Null v. Carpenters Dist. Council, 239 F.Supp. 809, 815 (S.D.Tex.1965) (“The fact that the District Council from whose members the Trial Committee was selected, ordered an investigation of the plaintiffs activities and the filing of charges if the investigation disclosed that the filing of charges was merited does not establish bias or impartiality on the part of any members of the trial committee.”). Nor is futility proven by Duane Vikman’s decision not to attend his hearing because he believed that paying the fine imposed would be less expensive than attending the hearing. His choice not to participate was merely a strategic decision on his part. Moreover, the fact that union proceedings against another employee, Joanne Miller, may have had a more favorable outcome than the Vikmans’ proceedings is not necessarily indicative of special treatment or bias. Like the Vikmans, Joanne Miller decided not to attend her hearing in California and was sued by the union for collection of strike fines. Unlike the Vik-mans, Ms. Miller settled with the union for less than the full amount of the fines assessed against her.20 While the evidence may demonstrate that some hostility and bias was shown toward the Vikmans by Gerald Linder,21 and that the proceedings were inconvenient for the Vikmans, it does not show bias or hostility toward the Vikmans by the Local 1269 trial board members, or by the International Vice-President who would hear the Vikmans’ appeals.
Based on the misapplication of the law to the facts in this case, I would find that the trial court abused its discretion in declining to require the Vikmans to exhaust their union remedies before asserting breach of the union constitution as a defense to the union’s strike fine claims. Accordingly, I would return this issue to the court of appeals with directions to remand to the trial court for dismissal of all defenses to the union’s strike fine claims and entry of judgment for the union.
With respect to the Vikmans’ willful breach of contract counterclaim, however, I find that exhaustion is not required. Where “the internal union appeals procedures would be inadequate either to reactivate the employee’s grievance or to award him the full relief he seeks,” a trial court need not require exhaustion. Clayton, 451 U.S. at 689, 101 S.Ct. at 2095. In Clayton, the court specifically looked to the availability of monetary relief as one factor indicating the adequacy of union remedies. Id. at 690, 101 S.Ct. at 2095. In Colorado, we have also held that union remedies need not be exhausted where they do not provide compensation for damages. Harper v. Gribble, 143 Colo. 502, 505-06, 355 P.2d 526, 528 (1960).
In this instance, the Vikmans requested actual and punitive damages against Local 1269 for willful breach of the union constitution. Under the union constitution, the sole remedies available for violation of any provision are assessment, removal from office, and/or suspension, or expulsion of the member or officer convicted of the violation. Art. 27, § 1. The union does not authorize an award of damages and thus could not provide the Vikmans the relief they seek. Accordingly, I would not require exhaustion with respect to the Vikmans’ willful breach of contract counterclaims. Because I find that exhaustion is not required with respect to the Vikmans’ breach of contract counterclaims, I must address the propriety of the trial *668court’s partial directed verdict in favor of the Vikmans on this issue.
III.
Willful Breach of the Union Constitution
The majority upholds the directed verdict entered by the trial court in favor of the Vikmans on the issue of breach of the union constitution both as a defense to the union strike fine claims and as a counterclaim. The majority gives only the most cursory treatment to the partial directed verdict on the Vikmans’ willful breach of contract counterclaim. It engages in no separate analysis of the four contract provisions alleged to have been breached and does not apply the proper legal test for construction of the union constitution. I would hold that the trial court improperly entered a directed verdict on the issue of Local 1269’s breach of the union constitution. For the foregoing reasons, I respectfully dissent from the majority holding in part II.E.
Provisions in union constitutions and bylaws defining punishable conduct and the procedures for trial and appeal constitute a “contract” between member and union. NLRB v. Allis-Chalmers Mfg., 388 U.S. 175, 182, 87 S.Ct. 2001, 2007, 18 L.Ed.2d 1123 (1967). The interpretation of a contract is a question of law, and an appellate court need not defer to the interpretation of the trial court. Fibreglas Fabricators, Inc. v. Kylbert, 799 P.2d 371, 374 (Colo.1990) (citation omitted). While a trial court’s evidentiary findings are generally accorded deference by an appellate court, in reviewing a trial court’s directed verdict, we must “view the evidence in a light most favorable to [the non-moving party] and determine whether, when so viewed and all reasonable inferences are drawn to support [the non-moving party], a reasonable jury could find for [the non-moving party].” Palmer v. A.H. Robins, 684 P.2d 187, 218 (Colo.1984).
Under Colorado law, the purpose of construing and interpreting a written agreement is to ascertain the intent of the parties, which is to be determined primarily from the language of the instrument itself. Express provisions of a document should not be rewritten merely because of the contrary assertions of a party to the agreement, and a court must enforce an unambiguous contract as written and in accordance with its terms. Lowell Staats Mining Co. v. Pioneer Uravan, Inc., 596 F.Supp. 1428, 1430 (D.Colo.1984). Courts generally give deference to the union’s own interpretation of its constitution and will not invalidate the union interpretation unless it is “unreasonable.” Newell v. I.B.E.W., 789 F.2d 1186, 1189 (5th Cir.1986); Stelling v. I.B.E.W., 587 F.2d 1379, 1389 (9th Cir.1978), cert. denied, 442 U.S. 944, 99 S.Ct. 2890, 61 L.Ed.2d 315 (1979); Local Union No. 657 v. Sidell, 552 F.2d 1250, 1257 (7th Cir.), cert. denied, 434 U.S. 862, 98 S.Ct. 190, 54 L.Ed.2d 135 (1977); see also Department of Labor v. Aluminum, Brick & Glass Workers Int’l Union, 941 F.2d 1172 (11th Cir.1991).22 None of these standards is applied by the majority in reviewing the trial court’s directed verdict on this issue.
The Vikmans allege four breaches of the union constitution.23 First, they allege that *669the union failed to specify the possible penalty and approximate relevant dates as required by section 3 of the union constitution. Second, they claim that the union failed to proceed with the case within 45 days as required by section 5. Third, they contend that the union failed to provide Edwin Vik-man with a union member to represent him as required by section 5. Finally, they allege that Edwin did not receive a “fair and impartial” or a “full and fair” hearing24 as required by section 5 because the union refused to hold the hearing in Colorado and because testimony relied upon by the trial board was “demonstrably false.” The union responds that (1) the charges were sufficiently specific; (2) the trial board “proceeded” within 45 days by scheduling hearings and sending notices; (3) the requirement to allow a member to have counsel does not require the board to appoint a representative; (4) the constitution does not require the trial board to travel to different states affected by the strike.
I will consider each alleged breach of the union constitution and address the question of whether, after construing the evidence in a light most favorable to Local 1269, a reasonable jury could have found for Local 1269. Because I find (1) that Local 1269’s interpretation of the union constitution is reasonable and entitled to deference with respect to each alleged breach, and (2) that upon viewing the facts in the light most favorable to Local 1269, and upon drawing all inferences in favor of Local 1269, a reasonable jury could conclude that Local 1269’s proceedings against the Vikmans did not violate the union constitution,25 I would hold that the trial court erred in entering a directed verdict in favor of the Vikmans on their breach of contract counterclaims.
a.
Section 3 of the union constitution requires that charges be
presented in writing, signed by the charging 'party, and specify the section or sections of this Constitution, the bylaws, rules or working agreement allegedly violated. The charges must state the act or acts considered to be in violation, including approximate relevant dates or places.
(Emphasis added). Local 1269 contends that this provision does not require notification of the possible penalty, nor the exact dates on which the violation was charged. As the plain language of the provision supports the union interpretation, I find this to be a reasonable construction and thus entitled to deference.
In this instance, the content of the charges sent to Duane and Edwin Vikman is undisputed. The charges were in writing, in the form of a letter to the recording secretary, Joanne Malik, and were signed by Peter *670Pusateri, the charging party. The charges specified that the Vikmans26 were in violation of article 27, sections 1(1), (5), (6), (7), and (17) of the union constitution and quoted the text of each subsection. The charges further stated that “[y]ou are charged with working behind picket lines during the recent strike with Mountain Bell between August 7, 1983, and September 6, 1983 in Boulder, Colorado.” Thus, a reasonable jury could conclude that the charges mailed to the Vik-mans did not violate the procedural requirements of the union constitution.
b.
Section 5 of the union constitution governs the union disciplinary procedures after charges have been filed. Section 5 requires that “[t]he trial board shall proceed with the case not later than forty-five days from the date the charges were filed.” The parties dispute the meaning of “proceed with the case” in this context. Local 1269 asserts that, under its interpretation, providing notice and setting a hearing date constitute “proceeding with the case.” Since the letters giving the Vikmans notice of the date and place of their hearing and a copy of the charges against them were mailed within ten days of the filing of charges, under Local 1269’s interpretation, the union was in compliance with this requirement.
The Vikmans disagree. They argue that the Local’s interpretation renders section 4 meaningless. Section 4 provides: “The [recording secretary] shall immediately send a copy of such charges to the accused member at his last known address together with written notice of the time and place he shall appear before the trial board.” The Vik-mans insist that “Sec. 4 already provides that the IBEW must ‘immediately’ after receiving the charge send a copy of the charge ‘together with written notice of the time and place he shall appear before the trial board’ to the accused. Of necessity, then, Sec. 5 must mean something more than merely sending the charge and notice of hearing.” Under their interpretation, proceeding with the ease requires a hearing within 45 days. Thus, they conclude that the December 3, 1983, trial date set for Duane, and the March 2, 1984, date set for Edwin failed to comply with the Vikmans interpretation of the 45-day requirement.
In this instance, the Local’s interpretation is not unreasonable and does not necessarily create an inconsistency between sections 4 and 5 of the union constitution. Thus, the Local’s interpretation is entitled to deference by a reviewing court under applicable law. Section 4 prescribes action to be taken immediately by the recording secretary while section 5 requires the trial board to proceed with the case within 45-days. In order for the recording secretary to provide notice of the hearing, the hearing time, date and place first must be scheduled by the trial board. The 45-day time period, then, modifies “immediately” in section 4 and defines the time limit for scheduling the hearing and providing notice to the union member.
The parties agree that ten days after the .charges were filed the recording secretary sent letters that notified the Vikmans of the time, date and place of their hearings, and that included a copy of the charges filed against them. Adopting Local 1269’s interpretation of this provision, a reasonable jury could find that, by scheduling the hearing and notifying the Vikmans, Local 1269 satisfied the requirement of section 5 that the trial board “proceed with the case” within 45 days.27
*671C.
Section 5 also provides that “[the accused] must, upon request, be allowed an IBEW member to represent him.” Edwin Vikman argues that the Local violated this provision by failing, upon his written request, to appoint a union member to represent him during the March 2 hearing. The union interprets this provision to require only that the trial board allow the accused member to be represented by a union member of his choice, not to require the board to appoint a representative.
Again, I find the union’s construction to be reasonable and entitled to deference. If the union constitution required the trial board to appoint a union member to represent the accused, it could have been written to say just that. Moreover, the union’s interpretation does not render the provision meaningless because it makes clear that (1) the accused member may choose to have a representative present his ease and need not present the case himself, and (2) the chosen representative must be a union member, not an attorney.
Neither party disputes that Edwin Vikman failed to arrange for a member to represent him at the hearing. He merely requested, in a letter posted the day before the hearing, that “an IBEW member in good standing present this statement of position on my behalf at the hearing and otherwise act as my counsel.” The parties agree that the letter was presented in the hearing but that no union member was otherwise appointed to represent Edwin Vikman. Under the construction of the contract I adopt, the trial board was not required to appoint a member to represent Edwin. Accordingly, a reasonable jury could find that this failure did not constitute a breach of the union constitution.28
d.
Section 5 also provides that “the accused shall be granted a fair and impartial trial.” Edwin Vikman contends that the trial board’s refusal to hold his hearing in Colorado deprived him of a fair hearing because he could not present his case in person or confront adverse witnesses. He also argues that the trial board’s bias and prejudice against him is evidenced by its reliance on testimony by Peter Pusateri relating “demonstrably false” information supplied to Pusateri by a “known enemy” of the Vikmans, Jerry Lin-*672der. The union counters that its constitution does not require hearings to be held in the state where the accused member is located. It also argues that the evidence of bias presented by the Vikmans requires the court to make credibility determinations that are inappropriate in the context of a directed verdict.
I agree with the union that the determination of whether Edwin Vikman received a “fair and impartial trial” requires the resolution of factual disputes. Construing the facts in a manner most favorable to the Local, I conclude that a reasonable jury could find that the hearing was fair and impartial.
The union constitution does not require the trial board to hold hearings in the state where the accused member is located. Failure to hold the Vikman hearings in Colorado thus is not a per se violation of the union constitution, but rather must be evaluated as impacting the fairness of the proceedings and the Vikmans’ opportunity to be heard. The opportunity to be heard must be “tailored to the capacities and circumstances of those who are to be heard.” Stewart v. St. Louis Typographical Union, 451 F.Supp. 314, 316 (E.D.Mo.1978). In this ease, Edwin Vikman joined a union whose headquarters and officers were located in California. In addition, there is no evidence that at the time of the March 2, 1984, hearing date Edwin Vikman was unable to travel to California for the hearing. Nor were the Vikmans singled out in this respect. Local 1269 also scheduled the hearing for Joanne Miller, another Colorado member charged with working during the strike, to take place in California. A reasonable jury could infer from these facts that it was not unfair to ask Mr. Vikman to travel to California for his hearing.
On the question of the impartiality and fairness of the hearing itself, a reasonable jury could also find in favor of Local 1269. An impartial tribunal is the sine qua non of full and fair hearing. Stein v. Mutuel Clerks Guild, 384 F.Supp. 444 (D.Mass.1974). As discussed earlier, there is no evidence in the record suggesting that the trial board was biased against the Vikmans. In addition, where some evidence is presented supporting charges and the right of confrontation and cross-examination has been afforded the charged member, the accused member has been given a “full and fair” hearing under 29 U.S.C. § 411. Ritz v. O’Donnell, 566 F.2d 731, 735-37 (D.C.Cir.1977). However, where a member fails to exercise these rights, they are considered to have been waived. Id.
In this instance, there is no allegation that the members of the trial board, or the International Vice-President who would have heard the Vikmans’ appeals, were biased against either of the Vikmans. The Vikmans had notice of and chose not to attend their hearings. Furthermore, Edwin Vikman’s statement presenting the reasons for his failure to participate in the picketing activities, and for working during the strike, was before the trial board during its deliberations. Sales contract records indicating the dates when both Duane and Edwin Vikman signed contracts also supported the trial board’s conclusion that the Vikmans worked for three weeks during the strike rather than three days as they contend. Union trial proceedings allow the accused member to confront and cross-examine witnesses, as well. Drawing all inferences and resolving all conflicts in the evidence in favor of Local 1269, a jury thus could have found that the union hearing was fair and impartial and in accord with the requirements of the union constitution.
Where factual issues remain on the basis of which a reasonable jury could have found for the Local, the matter must be submitted to the jury. Rennels v. Marble Products, 175 Colo. 229, 234, 486 P.2d 1058, 1061 (1971). Where a directed verdict has been improperly entered, the trial court’s judgment must be reversed and a new trial granted. Klipp v. Grusing, 119 Colo. 111, 113, 200 P.2d 917, 918 (1948).
Based on this analysis, the trial court improperly withheld the Vikmans’ breach of contract counterclaims from the jury, and a new trial must be granted. Furthermore, because the Vikmans’ outrageous conduct counterclaims also required the jury to evaluate union excesses in disciplinary action taken pursuant to the union constitution, I *673would find that the jury verdict on that issue is tainted and also requires a new trial.29
IV.
Conclusion
For the foregoing reasons, I find that the trial court abused its discretion in declining to require the Vikmans to exhaust their union remedies before asserting breach of the union constitution as a defense to Local 1269’s strike fine claims. I also find that the trial court erred in directing verdicts for both Duane and Edwin Vikman on their counterclaims of breach of the union constitution. I would return the case to the court of appeals with instructions to remand to the trial court for (1) dismissal of all defenses to the union’s strike fine claims and entry of judgment for the union; and (2) a new trial of the Vik-man’s breach of contract and tort counterclaims.
ROVIRA, C.J., joins in Part I of the special concurrence.
. As both Edwin and Duane Vikman assert the same legal arguments, I will discuss the Vik-mans’ claims separately only when there are material differences in the factual circumstances of their claims.
. The majority also asserts that section 6 of the Norris-LaGuardia Act is not applicable in this case because tortious conduct of the union and its members toward the Vikmans is not a "labor dispute” as defined in the federal act. Maj. op. at 660. The majority misreads the statute. Section 6 applies to an association or organization "participating or interested in a labor dispute.” 29 U.S.C. § 106. The act provides that
[a] person or association shall be held to be a person participating or interested in a labor dispute if relief is sought against him or it, and if he or it is engaged in the same industry, trade, craft, or occupation in which such dispute occurs, or has a direct or indirect interest therein, or is a member, officer, or agent of any association composed in whole or in part of employers or employees engaged in such industry, trade, craft, or occupation.
29 U.S.C. § 113(b). Under this definition, the I.B.E.W. is clearly an association "interested in” a labor dispute because relief was sought against it, and because it has a direct interest in the industry and in the outcome of the dispute. Thus, by its own terms the federal act would apply to disputes such as this one.
This interpretation is supported by United Mine Workers v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966). In Gibbs, the Supreme Court applied section 106 to state law tort claims brought by a mine supervisor who was harassed by union members. The supervisor was employed to open a second mine after the mining company closed the mine where the union members had been employed. As in this case, the mine supervisor's claims against the union did not concern issues of association or representation in negotiating terms and conditions of employment, nor the actual terms of the mine supervisor's or the union members' employment, as required under the definition of "labor dispute” in the federal statute. 29 U.S.C. § 113(c). The court nevertheless considered the situation to be governed by section 6.
. The federal act provides:
No officer or member of any association or organization, and no association or organization participating or interested in a labor dispute, shall be held responsible or liable in any court of the United States for the unlawful acts of individual officers, members, or agents, except upon clear proof of actual participation in, or actual authorization of, such acts, or of ratification of such acts after actual knowledge thereof.
29 U.S.C. § 106 (emphasis added). The analogous provision of the Colorado act read as follows:
No officer or member of any association or organization, and no association or organization participating or interested in a labor dispute (as these terms are herein defined) shall be held responsible or liable ... for the unlawful acts of individual officers, members, or agents, except upon proof by the weight of evidence and without the aid of any presumptions of law or fact, both of (a) the doing of such acts by persons who are officers, members or agents or any such association or organization, and (b) actual participation in, or actual authorization of, such acts, or ratification of such acts after actual knowledge thereof by such association or organization.
1935 Colo.Stat.Ann., ch. 97, § 79 (emphasis added).
. As the majority points out, the question of whether exhaustion should have been required for the Vikmans' tort claims was not preserved for review.
. 29 U.S.C. § 411 also provides that a union 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.... ” The Vikmans argue that this provision forbids any defense of exhaustion by Local 1269 because the Vikmans did not receive notification of the results of their hearings until more than six months after charges against them were initially filed. I disagree.
The four-month time period begins when the action complained of is taken. See Rekant v. Shochtay-Gasos Union, 205 F.Supp. 284, 290 (E.D.Pa.), rev’d on other grounds, 320 F.2d 271 (3d Cir.1962). The judicial remedy for wrongful action by the union ripens under this provision after pursuit of union hearing procedures for a period exceeding four months. Schuchardt v. Millwrights & Machinery Erectors Local Union, 380 F.2d 795, 797 (10th Cir.1967).
In this instance, the action complained of accrued when the union imposed strike fines on the Vikmans. However, the only action that either Vikman took was a letter from Duane Vikman to the president of the trial board, copied to the International President and Vice-President, which threatened litigation if the fines were not dismissed. This letter did not request an appeal proceeding, nor did it comply with the requirements of an appeal under the union constitution. Edwin Vikman did nothing and claims never to have received his notice of fine, although the recording secretary testified that she received the return receipt. Neither Vikman otherwise attempted to pursue the internal union appeal procedures outlined in the notice of fine. Instead, they merely refused to pay the fines. This provision thus does not provide a source of relief from the general requirement that union members exhaust union remedies before invoking judicial action.
. The question of futility was submitted to the jury in the form of the following instruction:
If a union member does not participate in the union's trial board procedure, or fails to ap*667peal the trial board's decision, or fails to follow the rules of appeal set forth in the union's construction, he has failed to exhaust his available remedies. If it is futile for a union member to exhaust his remedies, he is not required to do so.
The instructions did not indicate what evidence the jury could consider to make this finding, and did not define "futility.” As a consequence, the jury's finding of futility does not affect my analysis of this issue.
. There is also evidence in the record that she may have paid the full amount of her fines.
. While Gerald Linder was a member of the Local 1269 executive committee, he was not a member of the trial board which presided over the Vikmans' disciplinary hearings. Furthermore, Linder's influence over the trial board was limited. Linder testified that he had requested more lenient treatment of Joanne Miller to no avail.
. The Vikmans assert that the deference given to the union’s interpretation under this line of cases "flatly contradicts" Colorado law which provides that in cases of ambiguity, contracts "must be strictly construed against the party drafting the contract.” United States Fidelity & Guarantee Co. v. Budget Rent-A-Car, 842 P.2d 208, 211 (Colo.1992). That may be true, but other values, including national labor policy, prevail. The cases giving deference to union interpretations reflect a well-established policy of judicial non-interference with the internal affairs of unions unless the union’s interpretations are unreasonable. See Allis-Chalmers, 388 U.S. at 184-92, 87 S.Ct. at 2008-13.
. The relevant provisions of the union constitution provide:
Sec. 3. All charges against a member or members must be presented in writing, signed by the charging party, and specify the section or sections of this Constitution, the bylaws, rules or working agreement allegedly violated. The charges must state the act or acts considered to be in violation, including approximate relevant dates or places.
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Sec. 4. Charges against members must be submitted to the [recording secretary].... The [recording secretary] shall immediately send a copy of such charges to the accused member at his last known address together with written notice of the time and place he shall appear before the trial board.
*669Sec. 5. The trial board shall proceed with the case not later than forty-five days from the date the charges were filed. The board shall grant a reasonable delay to the accused when it feels the facts or circumstances warrant such a delay. The accused shall be granted a fair and impartial trial. He must, upon request, be allowed an IBEW member to represent him.
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Sec. 7. If the accused wilfully fails to stand trial — or attempts to evade trial — the trial board shall proceed to hear and determine the case just as though the accused were present.
I.B.E.W. Constitution art. 27, §§ 2, 4, 5, 7.
. 29 U.S.C. § 411 requires that union disciplinary proceedings include a "full and fair hearing.” The Vikmans pled a violation of this federal statutory requirement, as well as violation of the requirement of a "fair and impartial" hearing under the terms of the union constitution, as a defense to Local 1269's strike fine claims.
. The jury instruction concerning the directed verdict on the breach of contract claims was as follows:
The Court has determined that, as a matter of law, the procedures followed by the union in imposing fines on Ed and Duane Vikman did not accord the Vikmans a fair and impartial hearing. You are instructed that you must accept this determination. This determination by the Court is not to be construed as willful and wanton conduct. This is for you to decide.
While the jury returned a verdict for and awarded damages of $180,000 and $60,000 respectively to Edwin and Duane Vikman for willful breach of contract, the jury was not allowed to make the preliminary determination of whether Local 1269’s conduct in fact breached the union constitution. It was instructed that the Vikman’s were treated unfairly and only was allowed to determine whether the Local's conduct was willful and wanton. Thus, the jury verdict does not reflect any resolution of factual disputes involved in the breach of contract questions.
. Both Edwin and Duane Vikman received identical letters.
. Even under the Vikmans’ interpretation, a reasonable jury could find that Local 1269 did not breach the union constitution.
The "performance” element of a breach of contract action means "substantial” performance. Substantial performance occurs when, "although the conditions of the contract have been deviated from in trifling particulars not materially detracting from the benefit the other party would derive from a literal performance, [the plaintiff] has received substantially the benefit he expected, and is, therefore, bound to pay.”
Western Distributing Co. v. Diodosio, 841 P.2d 1053, 1058 (Colo.1992) (citation omitted); see also Communication Workers of America v. Drake, 487 N.E.2d 821, 824-825 (Ind.Ct.App.1986) ("[A] court will not interfere when a procedural rule is not correctly followed unless the complaining member shows that this failure severely impaired his ability to prepare a defense or seriously in*671creased the risk of an erroneous determination by the decision-maker.”) (citing Curtis v. International Alliance of Theatrical Stage Employees, 687 F.2d 1024, 1029 (7th Cir.1982)); Buresch v. I.B.E.W., 343 F.Supp. 183, 190 (D.Md.1971) ("A failure to comply strictly with the procedural provisions of a [union] constitution would not render the action of the union "void” so long as the "due process” requirement of the LMRDA are satisfied”) (citation omitted), aff'd, 460 F.2d 1405 (4th Cir.1972).
Construing the facts most favorably to Local 1269, the Local was in substantial compliance with the terms of section 5. The December 3, 1983, hearing date was not an arbitrary date, but rather fell 45 days after the date of the notice letter sent by the recording secretary, and only 55 days after the filing of charges. Thus, even under the Vikmans' interpretation, the delay appears to be the result of a miscalculation rather than willful action on the part of the union. More importantly, it is unlikely that the ten-day delay materially impacted either of the Vikman brothers. Duane did not intend to attend the hearing, and Edwin’s lawyer wrote to the Local on November 11, 1983, stating that "at this time ... Mr. Vikman's health would prevent him from traveling to San Francisco for the trial on December 3, 1983."
Furthermore, by delaying Edwin's trial until March 2, 1984, a reasonable jury could find that the Local was in full compliance with its constitution. The union constitution specifically provides that "[t]he board shall grant a reasonable delay to the accused when it feels the facts or circumstances warrant such a delay.” The Local's letter notifying Edwin of the new hearing date refers to Edwin's November 11 letter. Local 1269 reasonably could have interpreted the statement in the letter concerning Mr. Vikman's health as a request for a delay of the hearing date.
. I note that, even under the Vikmans’ interpretation of the union constitution, a jury could find that the trial board's failure to appoint a union member to represent Edwin Vikman did not constitute a breach of contract. In O’Brien v. I.B.E.W., 443 F.Supp. 1182 (N.D.Ga.1977), the court rejected the plaintiff's claim that the union failed to provide adequate notice of the charges against him stating, "Plaintiff's request for more specific information on the charges, although ignored by the I.B.E.W., came a bit late as it was written one day prior to the I.B.E.W. hearing." Id. at 1185.
. The jury was given the following instruction on the issue of outrageous conduct:
The plaintiff claims that it was exercising its legal rights in declaring a strike against Mountain Bell, asking union members to picket, and in assessing fines against members who worked for Mountain Bell during the strike, and in bringing this action to collect those assessments. If the plaintiff was exercising its legal rights in a manner which would not otherwise constitute extreme and outrageous conduct, your verdict must be for the plaintiff.
Furthermore, the plaintiff had a legal right to file this lawsuit and to defend the counterclaims asserted by the defendants. If you find that the defendants suffered mental anguish caused by the litigation, you may not award damages for such injuries.