Unpublished Disposition, 867 F.2d 612 (9th Cir. 1987)

MEMORANDUM^** 

FACTS AND PROCEEDINGS

For over twenty-five years, Michael G. Chambrella has been a bus driver for MTL, Inc. and a member of the Hawaii Teamsters and Allied Workers Union, Local 996.¹  He was also an elected shop steward from 1969 to 1986. Chambrella has a long history of criticizing Union management. He has been especially critical of appellee Arthur Rutledge, Union president, whom Chambrella opposed in Union elections.

On June 16, 1986, at the direction of Rutledge, Chambrella was removed from his position as shop steward.²  Chambrella twice wrote to Union officials requesting an explanation as to the grounds for his removal. When he did not receive an explanation, Chambrella filed this action on June 4, 1987, seeking reinstatement as shop steward, injunctive relief against future suppression of his freedom of speech, and punitive damages.

The district court granted summary judgment in favor of the defendants, concluding that Chambrella had failed to pursue his grievance through the available internal union remedies as set forth in the Union by-laws and the International Constitution. Chambrella timely appealed.

On appeal, Chambrella argues that the district court erred in requiring him to exhaust internal union remedies. Because his grievance involved the alleged denial of his right to free speech, he asserts that the union's internal remedies were inadequate. In any event, he claims that he exhausted the internal union remedies prior to filing suit.

JURISDICTION

The district court had jurisdiction under 29 U.S.C. §§ 185 and 412.³  This court has jurisdiction under 28 U.S.C. § 1291. See Bise v. International Bhd. of Elec. Workers Local 1969, 618 F.2d 1299, 1303 (9th Cir. 1979), cert. denied, 449 U.S. 904 (1980).

STANDARD OF REVIEW

The determination that Chambrella was required to exhaust internal remedies is reviewed under the abuse of discretion standard. Clayton v. International Union, United Automobile, Aerospace & Agricultural Implement Workers, 451 U.S. 679, 689 (1981); Lynn v. Sheet Metal Workers' Int'l Ass'n, 804 F.2d 1472, 1483 (9th Cir. 1986), cert. granted, 108 S. Ct. 1219 (1988).

DISCUSSION

Chambrella argues that his removal constituted a denial of his freedom of expression as guaranteed by 29 U.S.C. § 411(a) (2), which provides:

Every member of any labor organization shall have the right to meet and assemble freely with other members; and to express any views, arguments, or opinions; and to express at meetings of the labor organization his views, upon candidates in an election of the labor organization or upon any business properly before the meeting....

This statute gives union members the right freely to express themselves on union matters. Members can seek judicial review of an alleged infringement of this right pursuant to 29 U.S.C. § 411(a) (4), which provides that " [n]o labor organization shall limit the right of any member thereof to institute an action in any court...."

However, a member's right to institute a court action is limited. An aggrieved union 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...." 29 U.S.C. § 411(a) (4).

The trial judge may require exhaustion of reasonable hearing procedures before an aggrieved union member may pursue an action in the district court. Ornellas v. Oakley, 618 F.2d 1351, 1354 (9th Cir. 1980). The exhaustion requirement reflects a national policy favoring union self-regulation through the private resolution of contractual labor disputes. Clayton, 451 U.S. at 692. Chambrella's union clearly obliged its members first to pursue a grievance through the union grievance procedures before seeking court intervention. See International Constitution, art. XIX, Sec. 12(a).

Of course, union members should not be required to exhaust internal union procedures that are plainly inadequate. See Ornellas, 618 F.2d at 1354. Otherwise, many important issues of public policy may never be reached and an airing of the grievances never had. Bise, 618 F.2d at 1303; NLRB v. Industrial Union of Marine and Shipbuilding Workers of America, 391 U.S. 418, 425 (1968).

Courts must determine, therefore, whether or not exhaustion should be required given the nature of a particular grievance. The district court, in its sound discretion, ultimately must decide on the appropriateness of requiring exhaustion. Lynn, 804 F.2d at 1484; Scoggins v. Boeing Co., 742 F.2d 1225, 1229 (9th Cir. 1984); Rollison v. Hotel, Motel, Restaurant & Construction Camp Employees Local 879, 677 F.2d 741, 745 (9th Cir. 1982); Ornellas, 618 F.2d at 1354; Bise, 618 F.2d at 1303.

Chambrella argues that exhaustion should not be required because his grievance concerns freedom of speech. See, e.g., Keeffe Bros. v. Teamsters Local Union No. 592, 562 F.2d 298, 303 (4th Cir. 1977) ("a free speech violation generally justifies dispensing with administrative remedies"). He urges this court to adopt a rule under which exhaustion would not be required in any action involving alleged violations of 29 U.S.C. § 411(a) (2).

Such a per se exception to the exhaustion requirement has not been recognized. Although free speech rights are certainly among the most precious and fragile possessions of a citizen, " [t]he mere assertion by a union member that his free speech rights have been infringed will not, in all cases, render the exhaustion doctrine inapplicable. It is within the sound discretion of the trial court to make this determination. Appellate review is limited to preventing an abuse of this discretion." Bise, 618 F.2d at 1304 n. 3.⁴ 

Having decided against the adoption of the per se rule Chambrella urges, we undertake the standard analysis to determine whether the district court should have required exhaustion in this situation. When a failure to exhaust internal union remedies is the basis for a summary judgment motion, the moving party must first establish the availability of adequate internal union remedies. Scoggins, 742 F.2d at 1230; Lynn, 804 F.2d at 1483. To this end, Union directed the district court's attention to the relevant provisions in the International Constitution and the Union by-laws. See International Constitution, art. XIX, Secs. 1, 2, 5, and 9. The district court could properly conclude that these relief provisions were adequate.

Once the defendants had shown the availability of adequate remedies, the burden then shifted to Chambrella to respond by affidavits or other evidence setting forth specific facts showing the futility of exhausting internal union remedies. Scoggins, 742 F.2d at 1230; see also Fed. R. Civ. P. 56(e).

In Clayton, the Supreme Court enumerated three factors to be considered in determining whether exhaustion would be futile:

1. "whether union officials are so hostile to the employee that he could not hope to obtain a fair hearing on his claim";

2. "whether the internal union appeals procedures would be inadequate either to reactivate the employee's grievance or to award him the full relief he seeks"; and

3. "whether exhaustion would unreasonably delay the employee's opportunity to obtain a judicial hearing on the merits of his claim."

Clayton, 451 U.S. at 689.

If one of these factors exists, a court may excuse the employee's failure to exhaust internal remedies. Id.

It is clear from the record that the trial court adequately examined the three Clayton factors. First, it found that Union procedures "contain [ ] safeguards which would allow for the removal of any interested party who might be officers or members of the executive board and provision is made for the appointment of substitutes to hear and decide the complaint of a member. Article XIX of the [International] Constitution." Exhaustion was not futile under the "hostile" union official factor.

Second, the district court found that the internal remedies in Union's by-laws and the International Constitution were adequate to afford Chambrella complete relief. On appeal, Chambrella again questions the adequacy of these remedies. The district court clearly did not abuse its discretion in its finding of adequacy, however, as Chambrella failed to produce evidence by affidavits or otherwise to refute the evidence produced by defendants showing that the Union procedures were indeed adequate.

Third, the record discloses no evidence that the internal union remedies would unreasonably delay Chambrella's opportunity to obtain a judicial hearing on the merits of his claim. District courts can require exhaustion of internal union remedies for up to four months under 29 U.S.C. § 411(a) (4). Ornellas, 618 F.2d at 1354. The Union by-laws and the International Constitution provide procedures to comply with this time requirement. It was Chambrella himself who intentionally delayed acting upon his grievance for almost one year, assertedly because "the union was engaged in sensitive negotiations with the employer (MTL) on a new collective bargaining agreement."⁵  Chambrella's failure to exhaust internal remedies was not excusable under the "unreasonable delay" factor.

In sum, Chambrella failed to sustain his burden of showing that exhaustion should not have been required. Chambrella provided no affidavits or specific facts demonstrating the futility of exhaustion. Chambrella did not provide any explanation as to why he should not be required to exhaust the internal grievance procedure of the union. For the foregoing reasons, we conclude that the district court did not abuse its discretion in requiring that Chambrella exhaust internal union remedies prior to initiating this action.

On appeal, Chambrella also argues that he attempted to exhaust the internal remedies by sending written inquiries to Union officials requesting an explanation for his removal.⁶  He received no response. Chambrella claims that this satisfied Union's grievance procedures.

Section 21(B) (2) of Union's by-laws and article XIX, Sec. 2(b) of International's Constitution provide the required procedures to be followed by members when filing a grievance. Chambrella's requests for an explanation for his removal do not comply with Union's procedural requirements concerning the filing of charges. Chambrella's two letters did not constitute exhaustion of the internal union remedies.

AFFIRMED.