Emmanuel v. Omaha Carpenters Dist. Council

• Decision Date: 16 November 1976
• Docket Number: Civ. No. 72-0-463.
• Citation: 422 F. Supp. 204
• Parties: Alfred V. EMMANUEL, Plaintiff, v. OMAHA CARPENTERS DISTRICT COUNCIL, a Labor Organization, Defendant.
• Court: U.S. District Court — District of Nebraska

422 F. Supp. 204

Alfred V. EMMANUEL, Plaintiff, v. OMAHA CARPENTERS DISTRICT COUNCIL, a Labor Organization, Defendant.

Civ. No. 72-0-463.

United States District Court, D. Nebraska.

October 20, 1976.

Supplemental Memorandum November 16, 1976.

Thomas F. Dowd, Omaha, Neb., for plaintiff.

Robert E. O'Connor, Omaha, Neb., for defendant.

MEMORANDUM

DENNEY, District Judge.

This matter is before the Court upon the mandate of the Court of Appeals for the Eighth Circuit reversing the Court's judgment and remanding this cause for proceedings consistent with the Eighth Circuit's opinion Filing # 64.¹

The relevant facts as found by the Eighth Circuit may be summarized as follows. Plaintiff, Alfred V. Emmanuel, instituted this § 301 action against Omaha Carpenters District Council for breach of fair representation on November 3, 1972, pursuant to 29 U.S.C. § 185.

In the fall of 1971, Emmanuel worked as a carpenter for Western Fixture for one week. On February 20, 1971, Dan Harf, a job superintendent for Western Fixture, gave Emmanuel a letter pursuant to the Hiring Hall agreement with the Union, requesting the Union to refer Emmanuel to work for Western Fixture.

On February 23, 1971, Art Deseck, the Union's business agent, met with Harf and William Silverman, the president of Western Fixture. At that meeting, Deseck demanded that Western Fixture employ a local foreman. Harf countered with a complaint of shortage of carpenters and requested that Emmanuel and another carpenter, Coco, be sent to work. Deseck refused and Silverman then stated: "Well, we are not going to put on a foreman because we are not required to, but we will go along, we won't make any written request for men." The Eighth Circuit characterized this statement as a compromise satisfactory to all.

Thereafter, Harf notified Emmanuel that he could not use the written request he had previously received because of this agreement or compromise.

On February 28, Emmanuel registered with the Union and Harf telephoned a request to Deseck to send Emmanuel. Deseck refused, insisting on a written request, and Western Fixture refused to send a written request in light of the compromise agreement. Emmanuel did not work for Western Fixture during the remaining 10 weeks of the project.

The Eighth Circuit concluded that Western Fixture's failure to submit a written request for Emmanuel may have been the result of the compromise agreement. If it was, then the Union violated its duty of fair representation. This Court did not decide that issue, and the Eighth Circuit therefore reversed and remanded the case for "determination of the scope and effect of the agreement between Silverman and Deseck. It may do so on the basis of the existing record or on the basis of a supplemented record." 535 F.2d at 424.

Following the mandate of the Eighth Circuit, plaintiff submitted a motion for judgment on June 22, 1976. Oral argument was heard before the Court on July 30, 1976, during which this Court acceded to defendant's request to depose or obtain an affidavit of William Silverman. The Court granted defendant "until August 15, 1976, to inform the Court of the success of its efforts in locating Silverman for the purpose of taking of deposition or affidavit." Filing # 72. Upon defendant's failure to timely respond to the Court's Order, plaintiff submitted an affidavit of Silverman wherein he testified as follows:

That although Alfred V. Emmanuel had performed his work well for this Company and we were desirous of re-employing him, we were unable to do so solely because of the agreement reached with Art Deseck that we would not make any written request for specific carpenters in consideration of our not having to employ a local foreman. We were also unable to employ Alfred V. Emmanuel directly without utilizing the Union's hiring hall, since we had previously agreed with the Union to use their hiring hall exclusively for the employment of local carpenters. Filing # 73.

The Court thereafter granted defendant an additional six weeks in which to file counter-affidavits or depositions Filing # 77.

On September 17, 1976, the defendant took the deposition of Silverman, to no avail. Silverman testified to the same effect as his affidavit:

After we had talked I went over and told Dan Harf that all hiring would be done directly through the hall per the Union agreement and no requests would be given to anyone.

He told me, "Gee, I had already given a request," and I didn't know what the time span or when he gave it to Emmanuel. I told him, "You get that goddamn thing back now because I just made a deal with someone and we're going to adhere to it." And that's what actually transpired. (21:10-19).

Once again, upon motion of defendant, the Court granted a further two week extension of time in which to submit additional affidavits. Affidavits were then submitted on October 15, 1976. The affidavits, however, rather than complying with the Court's Order of August 4, 1976, which limited additional evidence to the scope and effect of the compromise agreement, attempt to litigate new issues and relitigate issues previously decided by the Eighth Circuit.

Sam Short, President of the Omaha Carpenters' District Council of Omaha, Nebraska, testified that plaintiff "has not attempted to institute any internal procedure against Arthur Deseck or any other officer or business representative regarding any incident which occurred in February 1972, prior to this date." Short testified that procedures were instituted by plaintiff on October 8, 1976, and that these charges are properly placed with the District Council Filing # 94.

Defendant has not briefed this point nor has it raised it during oral argument, but it appears that the Short affidavit is intended to raise the defense of internal union remedies. "Where . . . there is no question as to the adequacy and mandatory nature of the intra-union remedies it is well settled that an exhaustion of the remedies is an indispensible prerequisite to the institution of a civil action against a union." Newgent v. Modine Mfg. Co., 495 F.2d 919, 927 (7th Cir. 1974). See also Imel v. Zohn Mfg. Co., 481 F.2d 181, 183-84 (10th Cir.), cert. denied, 415 U.S. 915, 94 S.Ct. 1411, 39 L.Ed.2d 469 (1973); Buzzard v. Local Lodge 1040, 480 F.2d 35, 41 (9th Cir. 1973); Brady v. Trans World Airlines, Inc., 401 F.2d 87, 104-05 (3rd Cir. 1968), cert. denied, 393 U.S. 1048, 89 S.Ct. 680, 21 L.Ed.2d 691 (1969). The Court has reviewed the Constitution and Laws of the United Brotherhood of Carpenters and Joiners of America and does not find any explicit formal appeal procedures which affords relief such that plaintiff should be required to pursue it. Section 57 concerns appeals by members expelled, suspended or fined. Section 56 governs trials of members charged with "offenses" under Section 55, and is likewise not a bar to plaintiff's civil suit as it does not provide plaintiff relief. This Court accepts the reasoning of the Seventh Circuit Court of Appeals in Orphan v. Furnco Construction Corp., 466 F.2d 795, 801-802 (7th Cir. 1972):

Rather, this article provides for criminal-type prosecutions against Union members and officers charged with specified offenses. If, after "trial" the accused is found "guilty" of an offense, he is "punished by fine, reprimand or suspension." This is not the explicit appeal procedure "definitely available" to Union members that existed in Neal v. System Bd. of Adjustment, 348 F.2d 722 at 726 8 Cir.. Contrary to the situation in that case, it would appear unreasonable to expect the plaintiffs to have first sought relief against the Union's failure to process the grievance through Article X or to have alleged such attempt.

The additional affidavits submitted by defendant attempt to challenge the Court of Appeal's finding that there ever existed a compromise agreement. Defendant, in its brief on petition for rehearing and suggestion of rehearing, argued that the Eighth Circuit "substituted its finding of fact for the finding of fact of the district court." Appellee's Brief, p. 4. Defendant further argued that, at a minimum, resolution of the issue of an agreement should be left for future proceedings in the district court. "The district court clearly found there was no evidence of agreement. If that decision was wrong, the parties should be given the opportunity to supplement the record with evidence on the question of whether or not an agreement was in fact made." Appellee's Brief, p. 9. The Eighth Circuit denied defendant's petition for rehearing and it would indeed be a usurpation of the Appellate Court's authority for this Court to now entertain defendant's arguments.

This Court has been patient in providing defendant with ample opportunity to aid the Court in its determination as to the scope and effect of the Silverman-Deseck Agreement. Although the Eighth Circuit stated that this Court could make that finding on the basis of the present record, defendant was granted permission to submit affidavits or take depositions.²

On June 18, 1975, the parties stipulated that the matter be submitted to the Court for judgment on the merits on the basis of the record. Defendant now argues that the stipulation was entered into under a mistake of law and that this Court should relieve it of the stipulation. The Court considers itself wholly without power to nullify or to deprive one party of the effect of a stipulation. See American Chemical Paint Co. v. Dow Chemical Co., 164 F.2d 208, 209 (6th Cir. 1947). Although trial by jury is not to be lightly substituted with trial by affidavit, the parties, by and through competent counsel, waived their right to a jury and agreed to submit the matter on the record.

The Eighth Circuit remanded this cause for proceedings consistent with its opinion. Defendant's entire argument is premised upon the supposition that this court should commence proceedings inconsistent with the Eighth Circuit's mandate. This...