Purcell v. Keane
Decision Date | 31 January 1969 |
Docket Number | No. 17090.,17090. |
Citation | 406 F.2d 1195 |
Parties | Gervase J. PURCELL, Jr., Gregory Horan, John R. Keenan, Samuel J. Rosato, James J. Higgins, and Ronald McGuigan, on Behalf of Local 169, Affiliated With the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, a Labor Organization, Appellees, v. Frank KEANE, Archie McGowan, Frank Burdy, Bernard Marcus, Andrew O'Hara, William Maloney, Appellants, and Fireman's Fund American Insurance Company. |
Court | U.S. Court of Appeals — Third Circuit |
Bernard N. Katz, Meranze, Katz, Spear & Bielitsky, Philadelphia, Pa., for appellants.
Edward B. Bergman, Solo, Abrams, Bergman, Trommer & Padova, Philadelphia, Pa., for appellees.
Before McLAUGHLIN, KALODNER and ALDISERT, Circuit Judges.
This is an interlocutory appeal from an order denying defense motions to dismiss the complaint certified for this appeal by the District Court pursuant to 28 U.S.C. § 1292(b). Leave to appeal was granted by this Court on December 6, 1967.
The narrow issue here is whether exhaustion of internal union remedies is a condition precedent to suit brought under Section 501(b) of the Labor Management Reporting and Disclosure Act of 1959 (hereinafter LMRDA), 73 Stat. 535, 29 U.S.C. § 501(b) (1959).
Appellees are rank-and-file members of Warehouse Employees Local 169, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. Essentially, their complaint, filed November 8, 1966, alleges numerous breaches of fiduciary duties by appellants who were officers or business agents of Local 169. The alleged breaches included various expenditures of union funds for personal use and failure to account for union funds advanced to appellants to attend a convention in Miami Beach, Florida.
A brief chronological narration of appellees' efforts to apprise the union of these alleged violations and to urge the union leadership to take effective action against appellants is vital to a clear understanding of the background of this case. On September 29, 1966, prior to the filing of the complaint, appellees forwarded a letter to all the members of the Executive Board of Local 169 which, in effect, detailed the violations and concluded with the paragraph:
Attached to the letter was a list of the numbers of 287 union checks which allegedly represented the improper expenditures. The affidavit of Hartsough, president of the Local, notes the following events. A meeting of the Executive Board of Local 169 was held on October 4, 1966 at which a subcommittee was appointed to inquire into the charges contained in appellees' letter. About October 17 or 18, 1966, Hartsough asked McGowan, a member of the special subcommittee, when the report would be ready. McGowan, in essence, answered that he was too busy to do anything about it and, further, that he did not know when the subcommittee would meet. As a result of that conversation with McGowan, Hartsough sent the following letter to each of the members of the subcommittee on October 25, 1966:
Thereafter, on or about November 3, 1966, Purcell, one of the appellees, inquired of Hartsough whether the subcommittee report had been received. Hartsough answered in the negative and said further, that he had sent the above letter and had received no reply. This suit was commenced on November 8, 1966. Appellants, who are represented by counsel appointed and retained by the union, filed a motion to dismiss the complaint alleging, inter alia, failure to exhaust intra-union remedies. In an opinion and order dated November 20, 1967 the District Court Judge denied the motion to dismiss.
In seeking reversal of the order of the District Court the appellants say that in a suit brought under Section 501(b) of the LMRDA there is a mandatory obligation to exhaust internal remedies before bringing a court action. In support of that argument, it is urged that Section 101(a) (4) of the LMRDA, 73 Stat. 522, 29 U.S.C.A. § 411(a) (4) applies to suits brought under Title V of the LMRDA, 73 Stat. 535, 29 U.S.C.A. § 501 et seq. Section 101(a) (4) of the LMRDA (now 29 U.S.C.A. § 411(a) (4)) reads, in part, as follows:
"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 repondents in such action or proceeding * * * 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 * * *."
Section 501(b) of the LMRDA makes no specific reference to the exhaustion provision set forth in Section 411(a) (4). It reads in part as follows:
* * *"
The statute provides specifically and it has been so held by case authority that a request upon the union officers to take action is a condition precedent to suit by a union member. Coleman v. Brotherhood of Railway and S. S. Clerks, Freight Handlers, Exp. and Station Emp., 340 F.2d 206, 15 A.L.R.3d 933 (2 Cir.1965); Horner v. Ferron, 362 F.2d 224 (9 Cir.1966), cert. den. 385 U. S. 958, 87 S.Ct. 397, 17 L.Ed.2d 305; Persico v. Daley, 239 F.Supp. 629 (D.C. N.Y.1965); International Brotherhood of Teamsters, etc. v. Hoffa, 242 F.Supp. 246 (D.D.C.1965). Also, the complainant must obtain leave of court upon good cause shown before commencing suit. Addison v. Grand Lodge of International Association of Machinists, 318 F.2d 504 (9 Cir.1963); Coleman, supra; Executive Board, Local Union v. International Brotherhood of Electrical Workers, 184 F.Supp. 649 (D.C.Md.1960).
Appellants would now have us engraft upon the express provisions of 501(b) the exhaustion language contained in 411(a)(4) set forth above. Appellants argue that the requirement of exhaustion in this instance would be consonant with the Legislative intent expressed by Congress. We find the opposite to be true. The Congressional intent is clearly set forth in Section 2, 73 Stat. 519, 29 U.S.C.A. § 401 (1959). It reads, in part, as follows:
This Circuit in Gartner v. Soloner, 384 F.2d 348 (3 Cir.1967), cert. den. 390 U.S. 1040, 88 S.Ct. 1633, 20 L.Ed.2d 302 (1968) considered the Legislative purpose of the LMRDA at length and stated at p. 355:
See also: Nelson v. Johnson, 212 F. Supp. 233 (D.C.Minn.1962), affd. 8 Cir., 325 F.2d 646; United Brotherhood of Carpenters and Joiners of America v. Brown, 343 F.2d 872 (10 Cir.1965). Also, as was noted in the opinion of the District Court, it is significant that...
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Fraser v. James
...A plaintiff must first unsuccessfully demand that the union or its governing board or officers bring the action, Purcell v. Keane, 406 F.2d 1195 (3d Cir.1969), unless such a request would be futile. Sabolsky, 457 F.2d at 1252-1253. Second, a plaintiff must secure court permission to institu......
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Fraser v. James
...A plaintiff must first unsuccessfully demand that the union or its governing board or officers bring the action, Purcell v. Keane, 406 F.2d 1195 (3d Cir. 1969), unless such a request would be futile. Sabolsky, 457F.2d at 1252-53. Second, a plaintiff must secure court permission to institute......
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...a request for relief which was not a demand for court action to his union and having that request denied. See also Purcell v. Keane, 406 F.2d 1195 (3d Cir. 1969); Woods v. Local No. 12, Sheet Metal Workers Int'l. Assn., 438 F.Supp. 578, 580 (W.D. Pa.1977). A review of the facts alleged in t......
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...would be futile, or the suit is not harassing or vexatious, exhaustion of internal remedies is not always required. See Purcell v. Keane, 406 F.2d 1195 (3 Cir. 1969); Sabolsky v. Budzanoski, supra. We, therefore, deny defendants' motion to dismiss for improper venue and for plaintiffs' fail......