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District Court of Appeal, Second District, Division 2, California.

Robert A. HOLDERBY, Plaintiff and Respondent, v. INTERNATIONAL UNION OF OPERATING ENGINEERS, LOCAL UNION NO. 12, an unincorporated association, R. B. Bronson, P. A. Judd and William C. Carroll, Defendants and Appellants.

Civ. 20727.

Decided: April 19, 1955

Parker, Stanbury, Reese & McGee, Los Angeles, for appellants. Aaron Sapiro, Los Angeles, for respondent.

From a judgment in favor of plaintiff against defendants, hereinafter referred to as the union, in an action for declaratory relief directing that the member be reinstated in the union, defendants appeal.


i. October, 1952, plaintiff became a member of defendant union, local number 12.

ii. November 1, 1952, he became delinquent in the payment of his dues.

iii. Plaintiff's name appeared with other delinquent members on the delinquent list of January, 1953, and in accordance with the Constitution1 of the union, the Executive Board on February 5, 1953, suspended plaintiff for nonpayment of dues.

iv. Pursuant to the Constitution of the union2 , plaintiff applied to the general secretary-treasurer of the union for reinstatement which was granted upon the conditions (1) that he pay $19.00 which was a reduction of the normal amount which would have been required, and (2) that he supply a statement from his doctors substantiating his statement that he had been ill during the last few months of 1952. In making the foregoing concessions the union's letter called for ‘immediate’ attention.

v. It was over two months, to wit, May 8, 1953, before plaintiff paid the amount upon which his reinstatement was predicated.

vi. June 6, 1953, the executive board refused plaintiff's application for reinstatement in the union.3

vii. July 1, 1953, without taking any further proceedings before the union, plaintiff instituted the present action in the Superior Court of Los Angeles County.

Question: Was it a jurisdictional prerequisite to an action for judicial relief that plaintiff first invoke and exhaust the remedies provided by the provisions of the Constitution of defendant union before resorting to the courts?

Yes. The rule is accurately stated in Cone v. Union Oil Co., 129 Cal.App.2d 558, at page 563, 277 P.2d 464, at page 468, where Mr. Justice Fox, speaking for the court, says:

‘It is the general rule that a party to a collective bargaining contract which provides grievance and arbitration machinery for the settlement of disputes within the scope of such contract must exhaust these internal remedies before resorting to the courts in the absence of facts which would excuse him from pursuing such remedies. (Citing cases.)’ (Cf. Jackson v. Howser, 66 Cal.App.2d 870, 871[1], 153 P.2d 423, hearing denied by ths Supreme Court.)

In the present case Article XVII, Section 3, of defendant union's Constitution read in part as follows:

‘No suit or other action at law or equity shall be brought in any court by any member, officer or subdivision of the International Union of Operating Engineers until and unless all rights, remedies and provisions for hearing, trial and appeal within the Organization shall have been properly followed and exhausted by the member, officer or subdivision complaining. * * *’

It was also provided in Article XVII, Section 1(a) in part as follows:

‘Any General Officer who shall have filed in a Local Union charges against a member thereof, and any officer or member of a Local Union, may appeal to the General Executive Board from the adoption of any action by said Local Union, or from any decision rendered by the General President. Any Local Union, or member thereof which belongs to a local, State or Provincial Organization or Joint Executive Board may appeal to the General Executive Board from any act or decision of said local, State or Provincial Organization or Joint Executive Board * * *.’

In the instant case it is clear that the action of the executive board was ‘action by’ the local union, and that therefore plaintiff could have appealed under the Constitution of the union to the General Executive Board. This he failed to do. Therefore he has not met the jurisdictional requirements prerequisite to filing an action in the courts.

Plaintiff attempts to avoid the application of the above doctrine to the facts of this case on the theory that defendants failed to comply with the union Constitution in not filing charges against him and giving him a trial.

This contention is devoid of merit for the reason that plaintiff had not committed any offense which, under the Constitution of the union, he could be charged with and tried. The provisions of the union Constitution for suspension for nonpayment of dues would, in the instant case, be effective without hearing or any further action on the part of the union. (DeMille v. American Federation of Radio Artists, 31 Cal.2d 139, 154, 187 P.2d 769, 175 A.L.R. 382.)

Assuming for the purpose of argument only that plaintiff was expelled from the union, he still was required to appeal to the General Executive Board under the union Constitution before applying to the courts for redress. Article XXIII, Subdivision 7, Section (q), reads in part as follows: ‘Any member of a Local Union fined, disciplined or expelled shall have the right to appeal to the General Executive Board in the manner and form provided in the Constitution and the Laws and Rules established thereunder.’ This provision in conjunction with the provisions of Article XVII, Section 3, quoted supra, make it clear that in this case plaintiff did not exhaust his administrative remedies in the union before taking action.

In the present case the real contention of plaintiff is not that he was improperly suspended from the union, but that he was improperly refused reinstatement. Hence since this is conceded for the purpose of this appeal only, it is obvious there was no necessity to file charges against plaintiff and give him a trial in order to suspend him for nonpayment of dues.

It becomes evident that the only problem presented is: Did plaintiff comply with the remedies provided in the Constitution after the local union executive board denied him reinstatement before he turned to the courts for relief?

It is clear he did not.

In view of our conclusions it is unnecessary to discuss other questions and cases presented by counsel.



1.  Article XXIII, Subdivision 7, Section (d) of the union's Constitution provided:‘Penalties for Members in Arrears to Local Union Members thirty (30) days in arrears in payment of current dues, assessments or fines may upon vote of the Local Union be denied voice and vote therein.‘Members sixty (60) days in arrears in payment of dues, assessments or fines may upon vote of the Local Union be barred from meetings or removed from committees or both, or suspended from membership.‘Members ninety (90) days in arrears in payment of dues, assessments or fines may upon vote of the Local Union be penalized by one or more of the following: removed from employment where agreements between the Local Union and employers permit, removed from office without trial.‘Members six (6) months in arrears in payment of dues, assessments or fines may, upon report thereof by the Financial Secretary at a regular meeting of a Local Union, be expelled by a majority vote of the members present.‘The local executive board is likewise authorized and empowered to take the same action provided hereinabove and to enforce the foregoing penalties for arrearages against members, whenever, upon findings by it said arrearages are found to exist, and the same authority and power is conferred upon Supervisors in charge of Local Unions under International Supervision.‘No member of any Local Union shall seek to affiliate with another Local Union save in the manner and form required by the Constitution. Such member shall be required to make full disclosure to such other Local Union of his previous memberships including all facts as to any fine, penalty or other disability imposed within the organization and existing and unsatisfied against him and in addition such member shall strictly conform to and discharge any and all constitutional requirements governing the lifting of the said fine, penalty or disability.‘In addition to the penalties hereinabove provided, Local Unions may also impose the penalties provided for the causes herein set forth.’

2.  Article XXIII, Subdivision 7, Section (h) of the Constitution reads:‘A member who has been suspended under the provisions of this subdivision may be restored to membership in good standing and to his membership number only by making application on the form furnished by the General Secretary-Treasurer, together with the payment of all dues, assessments and fines then in arrears, the reinstatement assessment and in addition an amount equal to three months' dues. When all the foregoing requirements have been fulfilled by the applicant, notice thereof shall be given by the Financial Secretary to the General Secretary-Treasurer on the next monthly report, accompanied by all documents, reinstatement assessment and other charges due thereon.’

3.  Minutes of the executive board meeting on June 6, 1953, read:‘Minutes, Advisory Board of District No. 1, and report on membership transactions was by motion approved and concurred in with the exception of the reinstatement case of Robert A. Holderby, Registry No. 748663. A motion was made, seconded and carried that all previous action of the Executive Board in the case of Robert A. Holderby be rescinded. A motion was made and seconded that the application for reinstatement of Robert A. Holderby be rejected and that all moneys paid into the Local Union by him be refunded. On the motion it was thoroughly established that Holderby was not a qualified engineer and that his actions during the past six months had marked him as an individual undesirable for membership in this Union.’

McCOMB, Justice.

MOORE, P. J., and FOX, J., concur.

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