Pawlak v. Greenawalt

• Decision Date: 21 March 1979
• Docket Number: Civ. No. 78-1035.
• Parties: John A. PAWLAK and James Stafford, Plaintiffs, v. Charles E. GREENAWALT et al., Defendants.
• Court: U.S. District Court — Middle District of Pennsylvania

464 F. Supp. 1265

John A. PAWLAK and James Stafford, Plaintiffs, v. Charles E. GREENAWALT et al., Defendants.

Civ. No. 78-1035.

United States District Court, M. D. Pennsylvania.

February 2, 1979.

As Amended March 21, 1979.

COPYRIGHT MATERIAL OMITTED

Bruce F. Bratton, Harrisburg, Pa., Paul Alan Levy, Arthur L. Fox, II, Public Citizen Litigation Group, Washington, D.C., for plaintiffs.

Edward Davis, Philadelphia, Pa., for defendant Teamsters Joint Council No. 53.

Ira Weinstock, Handler, Gerber & Weinstock, Harrisburg, Pa., for defendants Greenawalt and Local Union 764.

John J. Dunn, Sr., Robert Mariani, Dunn, Byrne & Coviello, Scranton, Pa., Robert M. Baptiste, Gary S. Witlen, Washington, D.C., for defendants International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America.

OPINION

MUIR, District Judge.

The Plaintiffs, John A. Pawlak and James Stafford, filed this action against Charles E. Greenawalt, Local Union No. 764, Teamsters, Chauffeurs, Warehousemen & Helpers (the Union), the Teamsters Joint Council No. 53 and the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers alleging violations of 29 U.S.C. §§ 411(a)(1), 411(a)(2), 411(a)(4), 411(a)(5), and 501. The latter two defendants have filed answers to the complaint. On December 12, 1978, Greenawalt and the Union filed separate motions to dismiss the complaint and both Defendants filed briefs in support of their motions on December 27, 1978. The Plaintiffs filed a response to both motions on January 11, 1979. As of the date of this Order, no reply briefs have been filed.

The issues raised in the separate motions to dismiss filed by Greenawalt and the Union are substantially the same and both relate to assertions by the Defendants that this Court does not have jurisdiction over the subject matter of the action and that the complaint fails to state a cause of action. The Court will not treat the motions separately except where necessary. Because motions to dismiss have been filed, the Court is obliged to accept the well-pleaded allegations of the complaint as true and will set them out briefly below. See Helstoski v. Goldstein, 552 F.2d 564 (3d Cir. 1977).

Pawlak, who is a member of the Union and is employed by Interstate Motor Freight Systems, Inc. filed an action in this Court on February 7, 1977 contesting a change in his working conditions imposed by his employer. The Court dismissed that action because of Pawlak's failure to exhaust intraunion remedies prior to filing the suit. See Pawlak v. International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, Local Union No. 764, 444 F.Supp. 807 (M.D.Pa.1977), aff'd 571 F.2d 572 (3d Cir. 1978). Subsequent to the dismissal of that suit, Pawlak began to initiate procedures to amend the by-laws of the Local Union in a manner which would reduce the control of Union affairs by union officials, including Defendant Greenawalt, the President of the Union. Four members of the Union then brought disciplinary charges against Pawlak asserting that he violated sections 6(1) and 12 of Article XIX of the International Brotherhood of Teamsters' Constitution the latter of which forbids a union member from instituting a court action without first exhausting intraunion remedies and provides for the assessment of a fine equal to the costs, including attorney's fees, incurred by the Union in defending such a suit. A hearing on those charges was held on April 9, 1978 and on April 27, 1978, Pawlak was fined the sum of $2,635.00. He appealed that decision to Joint Council 53 and to the International Union, both of which affirmed the imposition of the fine. Pawlak asserts that the section of the International Constitution under which he was disciplined violates his rights to sue his union under 29 U.S.C. § 411(a)(4).

In connection with the disciplinary hearing, Pawlak requested permission to make a tape recording of the April 9, 1978 proceedings which request was refused by the Defendants. Pawlak asserts that this refusal, coupled with the fact that the proceedings were not recorded either by a court reporter or a tape recorder, deprived him of his right to a full and fair hearing in violation of 29 U.S.C. § 411(a)(5). He asserts that in connection with the disciplinary proceedings, Defendant Greenawalt violated his duty of fair representation under 29 U.S.C. § 501.

Pawlak and Stafford also assert that their rights were violated with respect to the proposed amendments to the by-laws of the Union. Those amendments were discussed at two meetings of the Union prior to a meeting held in April of 1978 at which the Union would decide whether or not to adopt the amendments. Approximately one week before that meeting, Defendant Greenawalt mailed a leaflet to a large number of Union members which was printed at Union expense and which attacked the proposed by-laws, claiming that the Union's counsel had expressed his opinion that the proposed changes were detrimental to the welfare of the Union and asserting that the changes would prevent Union officials from being able to take prompt and effective action on behalf of Union members, thus reducing their bargaining position and strengthening that of the employers. Pawlak asserts that such representations were made deliberately and were inaccurate. Pawlak requested from Greenawalt the right to print and mail a leaflet setting forth his views at Union expense and such request was refused. At the meeting relating to the by-laws, a large number of Union members who had not attended the prior two meetings appeared based upon the mailing of the leaflet and voted against the proposals. At that meeting, Pawlak requested an opportunity to address the merits of the by-laws and such request was refused. Pawlak requested a hearing from the Joint Council on this issue which was held on September 14, 1978. As of October 23, 1978, the date of the filing of the complaint, no decision had been reached by the Council. Pawlak asserts that the actions of the Defendants relating to the proposed by-laws violated 29 U.S.C. §§ 411(a)(1), 411(a)(2), & 501.

Greenawalt and the Union both assert that this Court has no jurisdiction to entertain Pawlak and Stafford's claims under 29 U.S.C. § 501. In support of that contention, they assert that two essential prerequisites of suit have not been met and, in addition, that the Union may not be sued under § 501(b). Specifically, the Defendants contend that the Plaintiffs did not seek leave of Court to proceed with this action as required by 29 U.S.C. § 501(b) nor did they make a specific request to the Union to institute suit and have that request denied.

29 U.S.C. § 501(a) sets forth the fiduciary responsibilities of officers of labor organizations. Section 501(b) states that if an officer, agent, shop steward or representative of a labor organization is alleged to have violated any of those duties and the organization refuses or fails "to sue or recover damages or secure an accounting or other appropriate relief . . . after being requested to do so by any member of the labor organization" that member may institute suit in a district court. Section 501(b) also states that no such proceedings shall be brought except by leave of court obtained upon verified application and for good cause shown. The Defendants assert that a verified application for leave to proceed has not been made in this case. However, the Court agrees with the Plaintiffs that the complaint itself, which is verified by both Plaintiffs, is sufficient to satisfy that requirement of the statute. In Sabolsky v. Budzanoski, 457 F.2d 1245 (3d Cir.), cert. denied, 409 U.S. 853, 93 S.Ct. 65, 34 L.Ed.2d 96 (1972), the Court of Appeals stated that lack of formality in observing the procedures set forth in § 501 will not bar a court from granting leave to sue and that a request contained in a verified complaint suffices to satisfy the statutory requirement. Paragraph 1 of the prayer for relief contained in the Plaintiffs' complaint is a request for permission to sue. Consequently, the complaint will not be dismissed because of a failure to request leave of court to pursue this proceeding.

The Defendants also assert that the portion of § 501(b) relating to a request to the labor organization to sue or recover damages or secure an accounting or other appropriate relief has not been satisfied by the Plaintiffs in this case. In support of this contention they cite the case of Penuelas v. Moreno, 198 F.Supp. 441 (S.D.Cal. 1961) which held that before instituting a suit in the district court, a member must request the union to take court action. The Court held that although § 501(b) is phrased in the disjunctive, the phrases "to sue," "to recover damages," and "or secure an accounting or other appropriate relief" all apply to the institution of a court suit. The rationale of that case has been adopted by the United States Court of Appeals for the Second Circuit. See Cassidy v. Horan, 405 F.2d 230 (2d Cir. 1968); see also Coleman v. Brotherhood of Ry. & Steamship Clerks, 340 F.2d 206 (2d Cir. 1965). However, as the Plaintiffs correctly point out, there is no absolute requirement in this Circuit that a Plaintiff request his union to take court action prior to the institution of suit. In Sabolsky v. Budzanoski, 457 F.2d 1245, 1252 (3d Cir.), cert. denied, 409 U.S. 853, 93 S.Ct. 65, 34 L.Ed.2d 96 (1972), the Court stated that the requirement of requesting the union to take action prior to the institution of suit was similar to the requirement contained in other sections of federal labor statutes that a union member exhaust internal union remedies prior to filing suit and that it was not mandatory in all cases. In Sabolsky, the Court reviewed the actions of the Plaintiff prior to his filing of the action and stated there was no indication that the suit was filed as part of an attempt deliberately to harass the Union, which underlies the...