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May 26, 1983;


The opinion of the court was delivered by: SOFAER



 Plaintiffs, Local 644 and various of its officers and representatives, bring this action against their parent union, the International alliance of Theatrical Stage Employes and Moving Picture Machine Operators of the United States and Canada, AFL-CIO ("IATSE" or "International") and against several IATSE officers, claiming that IATSE, bargaining, violated the jurisdictional terms of its constitution. Locals 644 and 659 are two of three local unions representing camera operators and photographers of the International. The IATSE constitution provides these locals with geographical jurisdiction over "the territory extending in any direction halfway to the next affiliated local union of the Alliance." IATSE const. art. XVIII, § 9(b). Within their respective jurisdictions they have exclusive control over the hiring of cameracrews and the terms of employment -- Local 644, with headquarters in New York, over the eastern third of the country, Local 666 headquartered in Chicago, over the central states, and Local 659, headquartered in Hollywood, over the western third of the country. Id. art. XIX, § 15.

 Local 644 claims that IATSE, acting as the exclusive bargaining agent for Local 659 and other West Coast locals, struct a bargain with the Hollywood producers, the employer bargaining unit, that expanded Local 659's jurisdiction beyond the boundaries set in the IATSE constitution, thereby encroaching on employment opportunities of Local 644 members. Plaintiffs claim that IATSE's actions were a breach of contract under the National Labor Relations Act § 301(a), 29 U.S.C.A. § 185(a) (1976) (the "Act"), and a breach of its duty of fair representation imposed generally under provisions of the Act. Plaintiffs seek monetary, injunctive, and declaratory relief. Defendants have moved for summary judgment, arguing that IATSE acted well within its constitutional powers in negotiating the terms of the Hollywood Basic Agreement ("Basic Agreement"), and that the dispute internal, and properly resolved by internal procedures.

 I. Jurisdiction

 Defendants suggest that this dispute over whether the IATSE constitution empowered its president to agree to the terms of the Basic Agreement is purely internal and should be resolved by internal means. The Supreme Court, in United Association of Journeymen v. Local 334, United Association of Journeymen, 452 U.S. 615, 624, 69 L. Ed. 2d 280, 101 S. Ct. 2546 (1981), recently ruled, however, that the term contract, as used in § 301(a) of the Act, 29 U.S.C. § 185(a) (1976), which grants district courts jurisdiction to decide "suits for violation of contracts . . . between any . . . labor organizations," encompasses a union constitution.The plaintiff local there claimed that the international had exceeded its constitutional power in ordering the consolidation of two local unions. The Court reasoned that constitutions are contracts within the plain meaning of the statute, id. at 622, and that congressional policy supported this construction since "the enforcement of the terms of the union constitutions -- documents that prescribe the legal relationship and the rights and obligations between the parent and affiliated locals -- would contribute to the achievement of labor stability," id. at 624. See also Local 657, United Brotherhood of Carpenters v. Sidell, 552 F.2d 1250, 1256-57 (7th Cir. 1977) (en banc); Local 1219, United Brotherhood of Carpenters v. United Brotherhood of Carpenters, 493 F.2d 93 (1st Cir. 1974). Thus, the issue whether the IATSE president exceeded the authority granted him by the IATSE constitution in arriving at the Basic Agreement is properly before this Court. If he in fact exceeded that power, judicial intervention is appropriate.

 Defendants' argument that plaintiff must exhaust internal remedies is equally unavailing. In Clayton v. UAW, 451 U.S. 679, 68 L. Ed. 2d 538, 101 S. Ct. 2088 (1981), the Court acknowledged the federal policy supporting a requirement that a union member first exhaust remedies provided in the union's constitution before seeking a judicial remedy. This promotes private resolution of internal disputes by self governing unions without undue judicial interference. Id. at 688. The Court held, however, that when the controversy calls into question the union's duty of fair representation and thus invokes statutory policies, the dispute can no longer be considered purely internal. Under these circumstances the district court has discretion to waive the exhaustion requirement. Such a waiver is particularly appropriate where plaintiffs demonstrate the futility of pursuing internal remedies. Id. at 689; see also Doby v. Safeway Stores, Inc., 523 F. Supp. 1162, 1167 (E.D.Va 1981). Plaintiff's have sufficiently established IATSE's unwillingness to grant the relief sought to warrant waiver of exhaustion.See Deen Affidavit PP14-19 (Mar. 8, 1983).

 II. Affirmative Relief.

 Plaintiff Local 644 seeks damages to compensate its members for the employment losses they suffered as a result of the jurisdictional encroachments of Local 659, and an injunction voiding the terms of the Basic Agreement that conflict with the jurisdictional provisions of the IATSE constitution. Plaintiffs state separately claims for breach of contract and breach of the duty of fair representation, but these may be consolidated into an analysis of the alleged contract breach.

 The duty of fair representation is a corollary to the collective bargaining process; it restrains a union, which, as an exclusive bargaining agent, is authorized to subordinate the individual interests of its members to the perceived interest of the bargaining unit, from bargaining in an arbitrary or discriminatory manner.Vaca v. Sipes, 386 U.S. 171, 182, 17 L. Ed. 2d 842, 87 S. Ct. 903 (1967); Smith v. Hussmann Refrigerator Co., 619 F.2d 1229, 1235-37 (8th Cir. 1980) (en banc). Within these bounds, which require complete good faith and honesty of purpose in representing fairly all employees in the bargaining unit, the union is accorded broad discretion and a wide range of choice in negotiating the terms of bargains with the employer bargaining unit. See Hines v. Anchor Motor Freight, Inc., 424 U.S. 554, 563-64, 47 L. Ed. 2d 231, 96 S. Ct. 1048 (1976); Jensen v. Farrell Lines, Inc., 477 F. Supp. 335, 349 (S.D.N.Y. 1979). Accordingly, a party claiming a breach of this duty has the burden of demonstrating by substantial evidence that the union bargained in bad faith or in an arbitrary or discriminatory manner.See Jones v. Trans World Airlines, Inc., 495 F.2d 790, 798 (2d Cir. 1974); Jensen, 477 F. Supp. at 349.

 Walter F. Diehl, President of IATSE, negates in his affidavit any possible inference that bad faith, discriminatory purpose, or arbitrariness motivated IATSE in 1949 when it orginally agreed to the terms of the Basic Agreement challenged in this suit.According to the affidavits and exhibits in support, the Basic Agreement, which directs the hiring of camera crews by West Coast producers and grants them the right to travel with crews hired on the West Coast, struck an accommodation of several competing forces. The producers were not bound to and were not willing to abide by the IATSE constitution's jurisdictional provisions, which require members of one local to gain the permission of another local before entering its jurisdiction to work on a film crew. IATSE Const. art. XXI, §§ 7, 9. Instead, the producers pressed for artistic freedom in selecting their camera crews and the right to have their crews travel with them on location. Diehl Affidavit P24 (Feb. 28, 1983). In addition, the closed shop prohibition of the Taft-Hartley Act made unlawful the then existing terms of the Basic Agreement which required membership in IATSE as a prerequisite to employment. See id. P19. Finally, the IATSE constitution and the chronic friction among the locals required that some effort be made to protect the locals' constitutional jurisdiction within the bounds of the law.Given these constraints the IATSE presdent gained a compromise from the employers whereby they would be granted the right to take their crews on location in exchange for hiring camera crews exclusively from a seniority roster maintained by Local 659. Id. PP42-43. This arrangement provided security to union members without creating a closed shop, and gained at least a limited recognition of local jurisdiction from employers who were free to disregard the IATSE jurisdictional rules. Such an accommodation falls well with the discretion a union may exercise in bargaining for its members, and plaintiff has offered no evidence to rebut this showing of good faith. Therefore, unless IATSE breached its own constitution in striking this bargain, no issue of fact will preclude granting defendants summary judgment on the duty of fair representation claim.

 Plaintiff alleges several constitutional restraints on IATSE in its claims. Article Twenty-one establishes the means for locals to protect their jurisdiction.Section 7 of that article provides:

 No member of this Alliance may accept a position without first obtaining a working card from his local union. Such working cards shall confer upon the recipients the privilege to work within the territory over which the issuing local union enjoys jurisdiction.

 All members of this Alliance operating under local or Alliance working cards must confine their work directly to that territory over which their particular local union enjoys jurisdiction unless permission to work in the jurisdiction of a sister local union be first secured in writing from the local union enjoying such jurisdiction. Any member violating this ...

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