JAMES MULCAHY vs. ARTHUR M. HUDDELL & others.

WAIT, J. The plaintiff appeals from an interlocutory decree sustaining a demurrer to his substitute second amended bill in equity, and from a final decree dismissing the bill.

The bill alleges that the plaintiff is a member of Local Union No. 4 of the International Union of Operating Engineers,

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a voluntary unincorporated association of which the defendant Huddell is general president, and in which, by his appointment, the defendant Fitzpatrick is international supervisor of Local Union No. 4, and the defendant Dwyer is assistant business agent of Local Union No. 4. It alleges that the defendant Huddell has for some years "undertaken to control the proceedings of the various local unions throughout the country," acting in this without right under the constitution of the International Union of Operating Engineers; and at considerable length it sets out actions of said Huddell illustrative of this purpose and control. It alleges that on July 1, 1929, the plaintiff received from the defendant Fitzpatrick notice to appear on July 8, 1929, before "the Advisory Board in charge of the affairs of Local Union #4" to show cause why action against him should not be taken for grounds of offense therein stated; that, on July 17, 1929, he received notice from the defendant Huddell, as general president, that he was suspended from membership in the local union for reasons stated; that he appealed to the general executive board of the International Union of Operating Engineers and, on September 18, 1929, received notice that the board sustained the decision of General President Huddell; that, on July 30, 1929, he attempted to attend a meeting of the local union but was ejected forcibly. Copies of the notice, the suspension, and the appeal are annexed as exhibits to the bill. These show that he did not present himself at the hearing of July 8; that he contends that the proceeding was nugatory, in part, because the advisory board was illegal and without jurisdiction; that he asserts that he has not violated any rule or principle of the International Union of Operating Engineers and that the charges are untrue. The bill alleges, further, that, on August 3, 1929, in consequence of notice to his employer from the defendant Dwyer that he had been suspended, he was discharged by the employer; that, on August 5, 1929, he was denied employment elsewhere in consequence of notice sent by the defendant Fitzpatrick that he had been suspended; and that, because of the unlawful acts of Huddell, Dwyer and Fitzpatrick, he is unable to get work and is deprived of

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opportunity to earn a living. Finally the bill alleges that he has used all means within the International Union of Operating Engineers to secure a proper hearing in accord with its constitution and general laws and rules, without securing such a hearing; but sets out (in paragraph 15) that "he has a right of appeal to the international convention according to the constitution, general laws and rules of the I. U. O. E.; and the plaintiff says that no time has been set for a convention, and the only method by which a convention may be held is for a referendum to be submitted to the local unions throughout the country and fifty-five per cent of the members in good standing voting and a majority of these shall be required to carry the referendum for a convention; and the plaintiff says, as hereinbefore set forth, that due to the fact that more than fifty per cent of the membership of the I. U. O. E. throughout the country are under the domination and control of the defendant Huddell by his appointment of international supervisors, so called, to manage and run the local unions, and further due to the fact that the said international supervisors cast the votes of absent members in whatever way they see fit, there is no possibility of a convention being held unless it is called upon the orders of the defendant Huddell; and the plaintiff further says that according to the constitution and general laws and rules of the I. U. O. E., it may not be held for four years and may be held any place in the United States or Canada; and the plaintiff further says that due to the supervision and control of the local unions by the defendant Huddell, no convention can be called except on the orders of the defendant Huddell, and any appeal which the plaintiff might make to the convention would be futile and of no avail, because of conditions above set forth." It prays an order to Huddell to reinstate the plaintiff; orders to the several defendants to refrain from doing "any act which will prevent the plaintiff from working as a Union man"; the assessment of damages, and general relief. The defendant demurred. The court sustained the demurrer; but did not specify, on which of the thirteen grounds of demurrer the decision was based.

The eighth ground, that the plaintiff has failed to exhaust

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the remedies provided for within the organization, is well taken. It is not necessary to discuss the others. It was stated in Correia v. Portuguese Fraternity, 218 Mass. 305, 308, 309: "It is a well established principle relating to beneficiary organizations like the respondent, that the rights of its members must be settled in accordance with the provisions of their constitutions, and that every remedy available within the corporation or order, must be exhausted before the aid of a court can be invoked. Hickey v. Baine, 195 Mass. 446, 452, and cases cited." The rule is applicable to voluntary associations such as the International Union of Operating Engineers. Hickey v. Baine, 195 Mass. 446. Agrippino v. Perrotti, 270 Mass. 55. Clark v. Morgan, 271 Mass. 164. See also Puleio v. Sons of Itala & Neighborhood Mutual Benefit Society, 266 Mass. 328. Indeed, art. XV of its constitution, which deals with "Appeals," sets out in § 3: ". . . No suit or action at law shall be brought in any case until after the remedies within the Organization have been exhausted. . . ." The plaintiff does not deny this to be the law. He contends, however, that no available remedy by appeal is left to him. Barbrick v. Huddell, 245 Mass. 428.

The case is before us upon demurrer. We have nothing to go upon but the allegations of the bill, and the constitution and laws of the union which are made exhibits. It appears that there is still open an appeal to the international convention, referred to in paragraph 15 of the bill. We do not think the allegations of that paragraph, read in the light of the rest of the bill, go far enough to show that this remedy is vain and illusory. The general president by the constitution (art. IV, § 1) "shall decide all questions on law and order as laid down in the Constitution and By-Laws." and, at least thirty days before the holding of a convention, must "publish all decisions rendered by him during his term of office. . . ." By § 2, he is to have "the direction and supervision of all Local Unions, with power to suspend either individual members or officers for incompetency, negligence or failure in successfully carrying out their duties." By art. VII, § 2, all legislative,

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judiciary, executive and administrative powers of the International Union of Operating Engineers, "when not in session in convention," are vested in the general executive board, which is given power "to decide appeals from the decisions of the General President, such decisions to stand until the next convention." The provisions for appeals, art. XV, authorize any member claiming to be aggrieved to appeal from a decision of the general president to the general executive board, and from its decision to the next convention, although the execution of the decisions is not stayed by the appeal.

Here is a comprehensive system. It is true that the geheral president may have great influence in the convention. He is to preside (art. IV, § 1). He appoints the committees (art. Ill, § 10). Through his control of local unions (art. IV, § 2) he can, perhaps, secure the election of delegates favoring his acts and opinions. Nevertheless, the convention is designed to be made up of delegates devoted to the service of the union and the rights of its members; and one of their especial duties is to pass upon appeals from decisions of the president and of the executive board. It is not to be assumed that such a gathering will be so subservient to the general president that an appellant's case is prejudged before it is heard. The allegations of the bill do not assert such prejudgment. If it is to be the basis of an exception to the rule, it should be stated in clear words and with sufficient allegations of facts which establish it. Hayden v. Perfection Cooler Co. 227 Mass. 589, 593.

The possible delay in hearing is not, of itself, enough to excuse compliance with the rule. Hickey v. Baine, supra. The constitution (art. Ill, § 1) provides for conventions every four years unless a referendum vote of the membership decides to postpone the meeting. The bill does not state when the last convention was held or referendum vote was taken. It asserts only that one may not be held for four years, and may be held at any place in the United States or Canada. No appeal is alleged to have been taken. The facts stated do not justify the failure to appeal. It

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is consistent with these allegations that a call for a convention may have been out at the moment of the decision on the demurrer.

The requirement that all remedies within the association or corporation must be taken before resort can be had to the equity courts is not avoided by the claim that the tribunal which acted was without jurisdiction, or that no offense was committed. Clark v. Morgan, 271 Mass. 164, 172. Hickey v. Baine, supra.

The cases of Curran v. O'Meara, 211 Mass. 261, and Barbrick v. Huddell, supra, on which the plaintiff relies, are plainly distinguishable on their facts, and are not controlling here. In Horgan v. Metropolitan Mutual Aid Association, 202 Mass. 524, the question of exhaustion of. remedies was not raised. In Malloy v. Carroll, ante, 524, decided while this case was under consideration, not only was there a finding of fact that an appeal would be futile; but it was also held that the decision of the president and executive board made when no convention was in session, was a final decision from, which there was no appeal to a convention.

In the opinion of a majority of the court the demurrer was sustained properly. Inasmuch as no further amendment to the bill was sought before the entry of the final decree, and as the ground on which this decision rests is the failure to proceed within the organization, the order will be

Decrees affirmed.