The opinion of the court was delivered by: TENNEY
On his motion for summary judgment, the plaintiff Robert Sanceverino is seeking compensatory and punitive damages from his international and local unions, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (the "Teamsters"), and its Local 445. Sanceverino alleges that he was wrongfully discharged under the terms of a collective bargaining agreement between his employer, McLean Trucking Company, and Local 445. The plaintiff was a truck driver for McLean from April 1977 until he was discharged on March 28, 1978, allegedly because of an excessive number of "missed clearances," relating to time off earned by truck drivers. The employer considered this a violation of a collective bargaining agreement signed on August 22, 1977 by McLean and Local 445. Affidavit of Robert Sanceverino, sworn to July 7, 1980 ("Sanceverino Aff."), P 5 and Exh. C. Plaintiff claims, however, that he was fired in retaliation for filing 31 defective-equipment reports as required by federal transportation regulations. Id. P 5.
By March 1978, Sanceverino was no longer represented by Local 445. As a result of a jurisdictional dispute finally resolved by the international union, the plaintiff contends that he was "forced ... without (his) consent" to transfer to Local 707 which at that time and at the time of his discharge was not his legal bargaining representative. Id. P 4. Nonetheless, without Sanceverino's urging, Local 707 made a request on or about April 3, 1978, for an arbitration hearing on the discharge. Apparently, the plaintiff decided to cooperate with Local 707, for he alleges that
despite my repeated requests, the attorneys appointed by Local 707 to represent me failed to consult with me until just 10 minutes prior to the hearing and failed to call any witnesses on my behalf who might establish the true nature of the discharge.
Id. P 6. The arbitration award upheld the discharge in light of "the collective bargaining agreement dated August 22, 1977 between Local 707 and McClean (sic) Trucking Corporation." Exh. E. to Sanceverino Aff. (emphasis supplied). This reference to Local 707 is undoubtedly just an inadvertent mistake; the arbitrator clearly applied and intended to refer to the agreement signed by Local 445.
In challenging the treatment he received, the plaintiff first brought an unfair labor practice charge against Local 707 for inadequate representation. In response, the National Labor Relations Board ("NLRB" or "Board") absolved the union because
at no time was (Local 707) the lawful exclusive collective-bargaining representative of the unit of employees of which (Sanceverino was) a member. Thus, as the Union was neither obligated to nor authorized to process your claims, it was not subject to the duty of fair representation imposed by the Act upon exclusive collective-bargaining agents.
Letter from NLRB Regional Director Winifred D. Morio, dated June 30, 1978, Exh. G to Sanceverino Aff.; Letter from Ronald M. Slatkin, Acting Director, NLRB Office of Appeals, dated July 31, 1978, Exh. H. to Sanceverino Aff.
Next, Sanceverino came to federal court and sued his former employer, his former bargaining representative, and the international union. The substance of his charges against McLean has already been discussed. Against the unions, he alleged that they "conspired to breach, and have in fact, breached the statutory duty of fair representation owing to the plaintiff," Amended Complaint P 16, "in forcing (him) to surrender (his) Local 445 membership and in compelling (him) to be represented by Local 707, which was neither obligated nor authorized to represent (him) in any way." Sanceverino Aff. P 9. "Moreover, at no time prior to this transfer was (he) ever permitted to vote or otherwise be heard with respect to (his) wishes concerning this transfer." Id. P 4.
On cross-motions for summary judgment, the unions argue that they have committed no wrongdoing and that the plaintiff has suffered no harm even if his transfer was improper. They state that the transfer was properly executed as an intra-union matter under the international union's constitution which is legal under the federal labor laws, Affidavit of Elmore V. Schueler, sworn to October 7, 1980 ("Schueler Aff."), PP 5, 15; Local 445's Memorandum of Law at 6-7; that the international union owes no duty of fair representation to the members of local unions, Teamsters' Memorandum of Law at 6-10; that because it has no representational duty, the international union cannot be sued in federal court under 29 U.S.C. § 185, id. at 5-6; that Local 445 bore the plaintiff no further duty of fair representation after the forced transfer, Local 445's Memorandum of Law at 7-8; and finally, that Sanceverino did not seek assistance from Local 445, nor has he claimed that its assistance would have prevented his discharge, id. at 4, 6.
First, the Court must face the international union's jurisdictional objections. The Teamsters argue that they cannot properly be sued in federal court under section 301 of the Labor-Management Relations Act (the "Act"), which provides that "(suits) for violation of contracts between an employer and a labor organization ..., or between any such labor organizations, may be brought in any district court of the United States." 29 U.S.C. § 185(a). With regard to the August 22, 1977 agreement between Local 445 and McLean, they correctly state that "claims under Section 301 may not be asserted against parent labor organizations like the International based on collective bargaining agreements to which only a local union is a party." Teamsters' Memorandum of Law at 6. See Teamsters Local 30 v. Helms Express, Inc., 591 F.2d 211, 216-17 (3d Cir.), cert. denied, 444 U.S. 837, 100 S. Ct. 74, 62 L. Ed. 2d 48 (1979). But this principle does not foreclose the possibility of a suit based upon the international's constitution as a contract. Santos v. District Council of New York of United Bhd. of Carpenters and Joiners, AFL-CIO, 547 F.2d 197, 199 n. 1 (2d Cir. 1977); Drywall Tapers Local 1974 v. Operative Plasterers' Int'l Ass'n, 537 F.2d 669, 672-73 (2d Cir. 1976). Although these precedents dealt only with suits to enforce the provisions of the constitutions as written, there is no reason to deny union members a judicial forum for challenging the use of union constitutions in ways claimed to be violative of the federal labor laws. Printing Specialties and Paper Prods. Dist. Council No. 2 v. International Printing and Graphic Communications Union, 466 F. Supp. 13 (E.D.Tenn.1978). On the other hand, section 301 jurisdiction does not extend to intra-union disputes simply because those disputes are governed by (and perhaps resolved under) the international's constitution. Cahill v. Metallic Lathers Local 46, 473 F. Supp. 1326 (S.D.N.Y.1979). The plaintiff's claim that his rights have been violated by his unwilling transfer to Local 707 pursuant to the Teamsters constitution surely alleges more than a simple complaint about internal union affairs. Jurisdiction is therefore proper. But to decide whether his complaint is meritorious, the Court will now turn to the specific statutory provisions involved in this case.
Section 7 of the Act protects a worker's right to organize with other workers or, if he so chooses, to refrain from organizing. 29 U.S.C. § 157. Section 8 makes it an unfair labor practice for a union to restrain or coerce a worker's exercise of section 7 rights, except that a union may "prescribe its own rules with respect to the acquisition or retention of membership therein." 29 U.S.C. § 158(b)(1)(A). See NLRB v. Allis-Chalmers Mfg. Co., 388 U.S. 175, 184-97, 87 S. Ct. 2001, 2008-16, 18 L. Ed. 2d 1123 (1967). In other words, while section 8 protects a worker's right to freely choose a bargaining representative, it
leaves a union free to enforce a properly adopted rule which reflects a legitimate union interest, impairs no policy Congress has imbedded in the labor laws, and is reasonably enforced against union members who are free to leave the union and escape the rule.
Scofield v. NLRB, 394 U.S. 423, 430, 89 S. Ct. 1154, 1158, 22 L. Ed. 2d 385 (1969) (upholding union's imposition of fine on union member). Once an appropriately delineated unit of workers has chosen a bargaining representative, that representative enjoys the right of exclusivity and bears the duty of representing all workers in the unit, whether union members or not, in a fair and reasonable manner. This duty applies to the initial negotiation of a collective bargaining agreement, Ford Motor Co. v. Huffman, 345 U.S. 330, 337-39, 73 S. Ct. 681, 685-87, 97 L. Ed. 1048 (1953), and to ...