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INTERNATIONAL UNION

June 5, 1974

International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, et al., Plaintiffs,
v.
National Right to Work Legal Defense and Education Foundation, Inc., et al., Defendants


Richey, D.J.


The opinion of the court was delivered by: RICHEY

RICHEY, District Judge.

 Once again this case is before the Court, in this instance on Plaintiff's Motion to Compel Answers to Interrogatories. After careful consideration of the memoranda filed in support of and in opposition to that motion, and the able oral argument of counsel, the Court has decided to grant Plaintiffs' Motion by Order of even date herewith. However, the matter does not end there. In their memoranda filed with the Court, the parties present divergent opinions as to the applicability of the second proviso to Section 101(a) (4) of the Labor-Management Reporting and Disclosure Act of 1959 (LMRDA), 73 Stat. 522, 29 U.S.C. § 411(a) (4), which prohibits "interested employer" financing of employee lawsuits against unions and confers a statutory right of action upon unions to protect themselves from employer interference within the scope of Section 101(a) (4). See this Court's Memorandum Opinion in International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, et al. v. National Right to Work, 366 F. Supp. 46 (D.D.C. 1974). The statutory prohibition giving rise to a union right of action states in pertinent part:

 
"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 * * * provided * * * that no interested employer or employer association shall directly or indirectly finance, encourage, or participate in, except as a party, any such action, proceeding, appearance, or petition."

 We start with the language of Section 101(a) (4) itself which is unambiguous. The Section applies without qualification to "an action in any court, or in a proceeding before any administrative agency." The proviso, which follows, restrains interested employers from financing "any such action, proceeding, appearance, or petition" and clearly refers to "an action * * * or * * * proceeding" discussed in the primary clause of the section. There is nothing in the statutory language just mentioned to suggest that operation of Section 101(a) (4) with its proviso is somehow confined to Title I lawsuits. As the Court noted in its original Memorandum Opinion in this case, " where Congressional intent is clear in the language of the statute, there is no need to resort to general rules of statutory construction or legislative history in order to construe the provision in issue. * * *" International U., U.A., A. & A. I.W. v. National Right to Work, 366 F. Supp. at 48.

 There are several decisions by appellate courts indicating that Section 101(a) (4) of the Act has application above and beyond suits or proceedings invoking Title I rights. The United States Court of Appeals for this Circuit in Roberts v. NLRB 121 U.S. App. D.C. 297, 350 F.2d 427 (1965), considered Section 101(a) (4) of the Act in determining, in part, whether an order of the National Labor Relations Board, finding that the petitioner Union had engaged in unfair labor practices in violation of Section 8(b) (1) (A) of the National Labor Relations Act *fn1" by fining a member because he had filed unfair labor practice charges with the Board, was invalid because the member failed to first pursue reasonable hearing procedures within the union. The Labor-Management Reporting and Disclosure Act came into play in this action because Section 101(a) (4) of the Act provides, where practicable, for a union member's exhaustion of his union's complaint procedures before turning to the Board or another forum for relief. Thus, the first proviso of Section 101(a) (4) which directly precedes the interested employer prohibition, states:

 
"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 * * *"

 In its application of the above limitation on a worker's right to sue the Board's Order premised upon Section 8(b) (1) (A) of the NLRA, the Court of Appeals determined that the operation of Section 101(a) (4) of the LMRDA did not in any way preclude the Board's ultimate exercise of its traditional powers under the NLRA to protect individuals from coercion by labor organizations, but,

 
" The proviso does authorize indeed it may require, the agency or court to which the member comes for relief to withhold the exercise of its authority -- for four months if reasonable internal procedures are available and are not earlier exhausted -- in deference to the congressional desire that a solution be reached by means other than at the hands of public authorities." 350 F.2d at 430. (Emphasis added)

 The Court of Appeals' consideration and application of Section 101(a) (4) and the statutory limitations thereupon in its review of proceedings before the Labor Relations Board leaves no doubt that the Section applies beyond the area of suits and proceedings asserting Title I rights under the LMRDA.

 The Court's conclusion in this regard is further buttressed by the recent decision by the Supreme Court in NLRB v. Industrial Union of Marine & Ship Workers, 391 U.S. 418, 88 S. Ct. 1717, 20 L. Ed. 2d 706 (1968), a case involving an exhaustion of internal union procedures issue similar to that in Roberts, supra. The issue presented was "whether consistent with the applicable federal statutes [the NLRA and LMRDA] a union may penalize one of its members for seeking the aid of the Board without exhausting all internal union remedies." 391 U.S. at 421, 88 S. Ct. at 1720. The Court noted that the constitution of the union charged with an unfair labor practice provided that a member could be expelled for filing a charge with the Board without first having exhausted " 'all remedies and appeals within the Union.'" 391 U.S. at 422, 88 S. Ct. at 1721. With respect to such internal procedures, Section 8(b) (1) (A) of the NLRA preserves to a union "the right of a labor organization to prescribe its own rules with respect to the acquisition or retention of membership therein." 29 U.S.C.A. § 158(b) (1) (A). Notwithstanding this restraint on judicial interference with a union's regulation of its internal affairs, the Court found that where union rules penalize members for filing unfair labor practice charges with the Board, other considerations of public policy are operative and must be effectuated. 88 S. Ct. at 1721.

 However, the exhaustion of internal procedures requirement of Section 101(a) (4) of the LMRDA raised a further question as to the propriety of the Board action. The Court, in reviewing the relevancy of the first proviso to Section 101(a) (4) and commenting upon its applicability to unfair labor practice charges before the Labor Relations Board, held that the proviso did not bar a dissident worker's access to the Board and, ultimately, the courts, where his grievance could be reviewed and the public policy issues fully aired. The Court concluded that the wording "may be required" in the proviso,

 
"is not a grant of authority to unions more firmly to police their members but a statement of policy that the public tribunals whose aid is invoked may in their discretion stay their hands for four months, while the aggrieved person seeks relief within the union. We read it, in other words, as installing in this labor field a regime comparable to that which prevails in other areas of law before the federal courts, which often stay their hands while a litigant seeks administrative relief before the appropriate agency. * * * We conclude that unions were authorized to have hearing procedures for processing grievances of members, provided those procedures did not consume more than four months of time, but that a court or agency might ...

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