Simmons v. Avisco, Local 713, Textile Workers Union

Decision Date13 September 1965
Docket NumberNo. 9827.,9827.
Citation350 F.2d 1012
PartiesRambert L. SIMMONS, Appellee, v. AVISCO, LOCAL 713, TEXTILE WORKERS UNION OF AMERICA, Appellant.
CourtU.S. Court of Appeals — Fourth Circuit


Beecher E. Stallard, Richmond, Va., for appellant.

G. William White, Jr., Richmond, Va., for appellee.

Before SOBELOFF and J. SPENCER BELL, Circuit Judges, and STANLEY, District Judge.

SOBELOFF, Circuit Judge:

An intra-union dispute which resulted in the suspension of a member gave rise to this suit for restoration to membership and for damages. Jurisdiction is under the Labor-Management Reporting and Disclosure Act (LMRDA), 73 Stat. 522-523 (1959), commonly referred to as the Landrum-Griffin Act.

The plaintiff, Rambert L. Simmons, is a member and former president of the defendant, Avisco, Local 713, Textile Workers Union of America. In an election conducted by the union from December 10 through December 14, 1962, Simmons ran for the office of business agent. It was discovered during the election that certain voted ballots had been stolen from the ballot box. The union's election committee voided the results of the election and initiated an investigation to determine who was responsible for the theft of the ballots.

In the course of the investigation a detective agency hired by the committee sought to administer polygraph tests to the thirteen persons who had been candidates. The election committee required each individual to sign a form agreement reciting that the test was taken voluntarily and without duress or coercion, and releasing the examiner from all claims arising from the examination. Twelve signed the form and took the test. Simmons declared his willingness to submit to the test and presented himself to the examiner, but refused to sign the release. The test was therefore not administered to him.

Approximately ten months later, on September 20, 1963, the union's executive board, without notice to Simmons, voted to suspend him for "non-cooperation" in the investigation. Shortly thereafter, however, the union president rescinded this action of the executive board because of the lack of notice to Simmons. Then, on September 30, 1963, A. P. Chinn, the chairman of the investigating committee, filed a written complaint against Simmons, again charging him with "non-cooperation." This time Simmons was sent a copy of the complaint and was invited to appear at a hearing to be held by the local executive board on October 7, 1963. He appeared and requested that the hearing be open to the entire union membership. When this request was denied, he left. The meeting proceeded, with Chinn presenting the case against Simmons. The committee, which included Chinn, then voted to suspend Simmons until such time as he would sign the release and take the polygraph test.

When the president of the local union later informed Simmons of his right to appeal to the executive council of the international union, his reply was, "I am going to appeal all right, but it is not going to be the way you are telling me to appeal." Without complying with the provisions of the constitution of the international union and the local by-laws,1 Simmons filed suit on October 31 in the District Court pursuant to section 102 of the LMRDA, 29 U.S.C.A. § 412,2 alleging that his suspension from membership was in violation of section 101(a) (5), 29 U.S.C.A. § 411(a) (5). This is the section of the statute's Bill of Rights of Members of Labor Organizations which provides safeguards against improper disciplinary action.3 In addition to a prayer for injunctive relief, the complaint sought damages, both actual and punitive, for loss of income, mental anguish, and injury to reputation caused by the illegal suspension.

At a hearing on a motion for preliminary injunction, Judge Butzner overruled the defendant's objection that the plaintiff had failed to exhaust his internal union remedies, and issued a preliminary mandatory injunction on January 8, 1964, reinstating him nunc pro tunc as of December 19, 1963, pending trial of the case on the merits. When the case came on for trial there was no further discussion or ruling on the defense of exhaustion of internal union remedies which the defendant had raised in its answer.

In accordance with Simmons' prayer the case was tried before a jury. Judge Lewis, who presided, ruled that the plaintiff was not entitled to punitive damages, and so instructed the jury. After a verdict was returned in favor of the plaintiff in the amount of $15,000, the defendant moved for judgment n. o. v. or in the alternative for a new trial. The primary objection, raised for the first time, was that the plaintiff was not entitled to a jury trial. The motion was overruled as untimely. The court then entered judgment on the verdict and made permanent the preliminary injunction which had been entered in January, 1964.


On this appeal the union makes multiple attacks upon the proceedings below. Its first contention is that because Simmons failed to exhaust available internal union remedies the complaint should have been dismissed. We are of another view.

The jurisdiction of federal courts in suits brought under section 102 for violations of the LMRDA's Bill of Rights is defined by section 101(a) (4). See Parks v. International Brotherhood of Electrical Workers, 314 F.2d 886, 925 (4th Cir.), cert. denied, 372 U.S. 976, 83 S.Ct. 1111, 10 L.Ed.2d 142 (1963). This section reads:

"No labor organization shall limit the right of any member thereof to institute an action in any court * * * 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 * * *."

The proviso was designed to further LMRDA's purpose of achieving union democracy by giving unions a reasonable opportunity to correct abuses and by encouraging them to set up machinery for the prompt and fair disposition and review of disputes. The Act therefore authorizes the federal courts4 to follow the common law practice of requiring a union member to exhaust internal union remedies before bringing suit.

As previously noted,5 the constitution of the international union and the by-laws of the local union provide procedures for the hearing of disciplinary charges by the local union's executive board as well as for review of these proceedings by both the international union's executive council and convention.6 The statute, however, does not make the exhaustion of hearing procedures mandatory in all cases, but allows the courts in their discretion to determine whether pursuit of such remedies is required. Detroy v. American Guild of Variety Artists, 286 F.2d 75, 78-79 (2d Cir. 1961).

It has been held, both at common law7 and under the Act8 that internal union remedies need not be exhausted where the action taken by the union is "void." This rather elastic term has been applied to proceedings where no proper notice was given, where the tribunal was biased, where the offense charged was not one specified in the union constitution or where there have been other substantial jurisdictional defects or a lack of fundamental fairness. As recognized by Chief Judge Lumbard in Libutti v. DiBrizzi, 337 F.2d 216, 219 (2d Cir. 1964), the concept of voidness lacks precision, and its use may necessitate a hearing on the merits before a ruling on exhaustion can be made. He points out, however, that "when conceded or easily determined facts show a serious violation of the plaintiff's rights, the reasons for requiring exhaustion are absent."

In the instant case the District Court, after holding a hearing on the motion for preliminary injunction and on the issue of exhaustion of union remedies, found that Simmons' rights had been violated because under the local's by-laws the executive board was without authority to suspend Simmons. Article XIII provides that members may be disciplined for violating a decision of the executive council or of the local union, for dishonesty, misconduct, or conduct detrimental to the welfare of the Textile Workers Union of America. None of these charges was made against Simmons, and "non-cooperation," the charge for which he was punished, is not an offense specified in the union's constitution.

The District Court's ruling that the union lacked authority to discipline Simmons for "non-cooperation" goes to the very heart of the case. Standing alone, this conclusion is sufficient to invalidate the disciplinary proceeding, and it becomes unnecessary to consider the correctness of other rulings that the union was guilty of additional violations of the Act.9 It is established law that a union cannot discipline its members except for offenses stated in its constitution and by-laws, and that the courts lack the power to recognize "implied offenses" and thereby rewrite the union's constitution and by-laws.10 Complicity in an election fraud was not the offense for which the plaintiff was suspended, but non-cooperation in declining to execute the release in advance of a polygraph test. The union was plainly within its rights in conducting an investigation of the election, but it exceeded the statutory limits on its disciplinary powers when it undertook to suspend the plaintiff for refusing to release the polygraph operator from any liability that might arise.

It follows that the lower court was correct in its conclusion that the proceedings were void and that Simmons therefore was not required to exhaust internal union remedies.


The union next argues that the District Court erred in permitting the case to be tried to a jury, and relies heavily on the recent case of McCraw v. United Ass'n of Journeymen & App. of Plumbing, Etc., 341 F.2d 705 (6th Cir. 1965), which held that in suits brought under section 102 of the LMRDA there is no...

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