[82] ROSENN, Circuit Judge, concurring in part and dissenting in part.

I join in the majority's opinion in all respects except for its failure to reverse the district court's grant of summary judgment in favor of the United Brotherhood of Carpenters and Joiners of America (the "United Brotherhood" or "International") on the plaintiffs' section 301 LMRA claim. As to that issue, I respectfully dissent.

I.

Significantly, this case does not involve the situation where an employer or some third party, to whom an international union has no formal or contractual relationship and owes no duty, attempts to impose liability on the international union for the illegal acts of its local union members. Such suits are common in wildcat strikes or when a local union authorizes a strike and its members engage in violent or other illegal activity or when the local and its membership engage in a strike for an illegal purpose which may harm the employer or third parties unrelated to the dispute. In such situations, courts approach the question of an international's liability cautiously.

In contrast, this case involves purely intra-union conduct, implicates an international's relationship with and obligation to its members, and as such invites closer judicial scrutiny. Unlike the typical situation where the employer and a union engage in collective bargaining and each is armed with powerful weapons for that purpose, the ordinary members of a local union are relatively defenseless in a dispute with the local. The union members' only means of checking the local officials' misconduct is the ballot, generally at an election held every three or four years. By that time, the members' opportunity to earn a livelihood may be at risk; they may face economic extermination unless they can obtain speedy redress from the international union or the courts. When the international union rejects their importunings, the last hope of relief rests with the courts.

With the passage of the 1947 Taft-Hartley amendments to the National Labor Relations Act, Congress made an extraordinary exception for building and construction unions, entrusting to them the power to establish and control non-discriminatory exclusive hiring halls. See 29 U.S.C. § 158(f). The characteristic feature of a hiring hall arrangement is that a union can select from among its members those workers to fill employment needs, the "keystone of this arrangement [being] the employer's abdication of the selection process to the union." 73 ALR Fed. 171, 177, n. 2 (1985). Although these amendments to the Act permitted the limited continuation of exclusive union hiring halls in the building and construction industry, Senator Taft, sponsor of the bill, voiced his concern over the extraordinary power which such arrangements gave the unions, when he stated,

[An exclusive hiring hall arrangement] gives the union tremendous power over the employees; furthermore, it abolishes a free labor market. A man cannot get a job where he wants to get it. He has to go to the union first; and if the union says that he cannot get in, then he is out of that particular labor field. Under such circumstances there is no freedom of exchange in the labor market, but all labor opportunities are frozen.

See Cong.Rec., Senate, April 23, 1947, p. 3952 (quoted in 38 ALR 2d 413, 415, n. 5).

The hiring hall removed the carpenters' right to work from their own hands and placed it in the hands of union representatives. With such extraordinary power necessarily went grave responsibilities.

The majority concludes that the plaintiffs have failed to demonstrate specific facts showing that there is a genuine issue for trial regarding the liability of the United Brotherhood. Majority Op. at 1291. I respectfully disagree. I believe the record is replete with evidence from which a jury reasonably could infer that the United Brotherhood breached its obligations under the union constitution and, alternatively, supported, ratified, or otherwise encouraged the local union in its breach of the duty to represent the union members fairly. Although it had the power and duty under its constitution to step in and correct the alleged abuses, the International for seven years did nothing to aid its members. On the contrary, there is evidence from which a jury could infer that the International guilefully led the members to believe it was endeavoring to be helpful while it allowed, encouraged and by its steadfast silence even supported the abuses. It is said that actions speak louder than words; inaction may sometimes be far more eloquent.

II.

Because the factual underpinnings underlying the plaintiffs' complaint are critical to determining whether there exists a disputed issue of fact as to the United Brotherhood's breach of its constitution or as to its encouragement and support of the abuses employed by its subordinate officials, it is necessary to review them in some detail. Defendant Keystone District Council ("Council"), a subordinate unit of the United Brotherhood, periodically entered into collective bargaining agreements on behalf of its members with builders and other prospective employers in the building and construction industry to provide them workers through a hiring hall system. Customarily, union carpenters whose names have been on the hiring hall list for the longest period of time are referred to an employer who requests workers. For the period between 1979 and 1986, Local 514's business agent Edward Blazejewski, Sr., (Blazejewski) controlled the assignment of the plaintiffs to work through the hiring hall system. The twenty-seven plaintiff carpenters and their wives allege that between 1979 and 1986, Blazejewski wielded his power over the hiring hall to retaliate against those union members who opposed him politically and who attempted to exercise their rights of free speech and political expression in the union.

The International eschews any responsibility for Blazejewski's allegedly abusive conduct, claiming that it was unaware of such abuses. Consistent with the International's posture of perpetual denial throughout the duration of plaintiffs' battle with Blazejewski, at oral argument its counsel contended that the United Brotherhood was not advised of the carpenters' complaints of hiring hall abuses until 1986. Notwithstanding counsel's straightforward disavowal that the United Brotherhood had no notice of hiring hall abuses prior to 1986, I believe the evidence in the record on this point is unequivocally to the contrary. Indeed, evidence shows that the United Brotherhood early had actual notice of the abuses complained of by the plaintiff carpenters.

In 1979, Local 514 utilized illegal marked ballots in the election of the business agent and other union officials, and many of the plaintiffs voted against Blazejewski, his son, and other Blazejewski-supported candidates. Thereafter, some plaintiffs complained to the United Brotherhood about the marked ballots and their fears of reprisal from Blazejewski, Sr., for voting "the wrong way." John Anello, representing the International and the General President, dispatched to investigate abuses at Local 514 from 1982 to 1986, admitted that, although there was an appeal from the illegal election to the International, it did not invalidate the election; it did nothing to protect the union members who had voted against Blazejewski's son. At his deposition, Anello acknowledged that a vindictive business agent could use the marked ballots as a means of identifying opposition members and refusing to refer them to work. Nevertheless, Anello was unaware of any follow-up by the International to ensure such a situation would not occur.

The majority discounts the relevance of the 1979 marked ballot election to the issue of retaliatory hiring hall discrimination. Majority Op. at 1290. To the contrary, this illegal election identified many of the plaintiffs as opposing Blazejewski and is wholly relevant to their alleged injury from and provided the motivation for the ensuing retaliatory discrimination. The International's failure to rectify the illegal election of Blazejewski, in clear contravention of its constitution and by-laws, is also relevant to the question of the International's ratification of the hiring hall discrimination; its inaction reasonably may have sent a "green light" to Blazejewski that the International would not interfere with Blazejewski's treatment of the opposition carpenters. The majority's attempt to dissociate the two events — the sanctioned illegal election and the subsequent non-censured retaliation — constitutes an unnatural departure from the evidence in this case.

Following another election in 1982 in which Blazejewski's son was defeated, the opposition carpenters sent renewed complaints to the United Brotherhood. According to plaintiff Eugene Cardoni's affidavit, agent Blazejewski boasted that all who had openly opposed his son in the election would never obtain work again after being laid off. Cardoni himself received no work referrals after being laid off in 1983. Once again, affidavits in the record reveal that written petitions by the members to the United Brotherhood failed to yield any results. Although the majority, see opinion at 1290, appears to pay little weight to the significance of plaintiffs' affidavits, even in the context of opposition to a motion for summary judgment, affidavits which bear the indicia of reliability are, of course, wholly applicable to the disposition of a summary judgment motion and should be carefully scrutinized by the court.

The majority suggests that the complaints of the union members failed to focus sufficiently on the hiring hall retaliation but treated them in a subordinate manner to other grievances. I disagree. The presence of separate grievances in the plaintiffs' letters in no way diluted the potency of their complaints regarding the abuses in the work referral system. Nor did they reduce their efficacy in giving notice to the International. Moreover, this court should not expect the union carpenters to have prepared and presented their complaints to their International Brotherhood concerning their lack of work with the clarity, exactitude, and precision required in an old common law proceeding.

Furthermore, I fail to see the relevance of references to other grievances to the issue here. The International did respond effectively to some of these other complaints, such as the charge that Blazejewski had abused a union fund. If relevant at all to the issue of the International's encouragement or ratification of hiring hall abuses, its effective intervention in response to one set of complaints contributes to the conclusion that the International's failure to intervene in another context constituted implicit affirmance of the misconduct. Indeed, it would support a finding by a jury of ratification or encouragement.

The majority does not dispute that some of the plaintiffs' letters to the International unequivocally addressed the hiring situation in a clear, focused and poignant manner. Plaintiff Albert Pavlick's letter grievance of January 26, 1983, was one such letter. Pavlick, a millwright, complained to the General President of the United Brotherhood about agent Blazejewski's refusal to refer Pavlick out to work after Pavlick campaigned for an opposition candidate to Blazejewski as business agent. Pavlick informed the General President that after two years of no work referrals he finally spoke to Blazejewski directly, asking him about when he might receive work through the hiring hall. Blazejewski's response, which Pavlick related to the General President, was, "You'll know when I call you." Pavlick also informed the Brotherhood President that he was "not the only one Eddie [Blazejewski] had discriminated against," and stated, "Right now there are three guys who haven't worked at all for almost a full year. . . ." Pavlick concluded his letter with a stirring plea for help, asserting that several of the discriminated members were losing their homes for lack of work, and that he believed that he had "paid [his] debt for not voting for Ed Blazejewski as Business Agent." In a postscript to his letter, Pavlick declared, "I know many men who will tell you their stories of discrimination if only someone is willing to listen." (Emphasis added).

Following Pavlick's grievance, a meeting was set up between Pavlick, Blazejewski, and the International's representative Anello. According to plaintiff Gerald Siperko's affidavit, Anello refused to listen to the carpenters' complaints about the hiring hall but, in Siperko's words, "dismissed us by commenting to Joe Novitsky, `as big as you are you shouldn't have any problems.'" There is no evidence in the record that Anello or the International took any action whatsoever following this meeting.

Plaintiff John Zimnicky alleges in his affidavit that at about the same time he spoke with another International representative about Blazejewski's misuse of the hiring hall but that the representative did nothing. In another incident reported by plaintiff Nicholas Kovalchik, a former member and local union trustee, one carpenter tried to press charges against Blazejewski for his refusal to authorize that union member's health benefits. According to Kovalchik, at a meeting attended by Anello, the International representative, Blazejewski attacked the complaining carpenter by grabbing his throat and pushing him up against a wall. Kovalchik further averred that the International never disciplined nor reprimanded Blazejewski for hiring hall abuses despite numerous pleas over many years and meetings with the International's representatives.

The record shows that on January 3, 1984, plaintiff Siperko wrote the General President of the United Brotherhood to complain about Blazejewski's refusal to refer Siperko and thirty-nine other carpenters to work in an effort to "starve out" his opposition. Siperko also wrote to the NLRB and the Senate Labor Committee complaining of unfair work referrals. On December 31, 1984, plaintiff Zimnicky wrote the General President complaining about Blazejewski's misuse of a union fund and his discriminatory treatment of the opposition carpenters. Zimnicky's letter, signed by over twenty-five union carpenters, charged the International with protecting Blazejewski, asserting that it "has condoned Blazejewski's illegal actions every time we brought them to your attention — enhancing his position and encouraging further corruption. For Blazejewski's `administrative convenience' [the United Brotherhood] has again chosen to condone gross violations of our rights." (Emphasis in letter).

The only result the plaintiffs received from persistently exercising their union right to petition the United Brotherhood was repeated abuses from Blazejewski and repeated denial of work opportunities. Aware of Blazejewski's willingness to punish those who complained to the International and the need to preserve the complainants' anonymity, someone, presumably a plaintiff, wrote the words "Don't Copy," prominently at the top of Zimnicky's letter grievance signed by many of the aggrieved carpenters. Indeed, the courage and persistence of these men and their families is remarkable. From their years of experience with Blazejewski, they must have known that by airing their grievances with the International they risked further reprisals from the business agent. Such courage in the face of Blazejewski's demonstrated willingness to crush his opposition underscores the appalling nature of the United Brotherhood's failure to intervene on behalf of those who placed their trust in the International. Despite the International's inaction, the letters kept coming.

In utter desperation, Zimnicky's wife Jean wrote on July 9, 1985, to another officer of the United Brotherhood to complain about Blazejewski's discriminatory hiring practices. In that letter, she protested,

What does it take to get your attention? . . . Right now, Eddy Blazejewski is sending retired, pensioned members to work at the RCA job at Keystone Industrial Park, Dunmore — while 60 dues paying members are unemployed. A few of these men have not been offered work by Blazejewski in two years, many others in more than a year. [Several union officials] told my husband and others than no-one from the International ever contacted or questioned the officers of Local 514 about a single complaint made against [Blazejewski].

Thereafter, at the start of 1986, Mr. Zimnicky wrote the United Brotherhood stating that the Council had no hiring rules and again complaining about Blazejewski's "hiring practices and his brazen contempt for the law." Other plaintiffs continued to write the International with complaints about similar hiring hall discrimination.

Thus, the United Brotherhood's contention that it had no notice of hiring hall discrimination until 1986 is glaringly refuted by the deluge of letters sent by the plaintiffs and by numerous documents in the record. Indeed, not only did the United Brotherhood know of these alleged abuses, but it repeatedly sent Anello seemingly to investigate complaints beginning as early as 1981 or 1982. Nevertheless, there is no evidence in the record that the International did anything to admonish or sanction Blazejewski or rectify the hiring hall situation. Instead, the International adopted a course of utter silence, which could only have encouraged Blazejewski and affirmed his conduct with respect to his mistreatment of the plaintiff carpenters, until after Blazejewski's retirement in 1986. This led an exasperated Zimnicky to write the following to Anello on April 7, 1986:

You've been investigating complaints from Local 514's members for several years, during which a bad situation grew steadily worse. Al Pavlick told you in 1982 when you were investigating his grievance that we had no hiring rules; you've known that for years. In spite of continued complaints about B.R. Blazejewski's unfair hiring practices you made no attempt to resolve the problem. You could have recommended at any time that the Local adopt hiring rules. Instead, you spent 2 or 3 hours in private with B.R. Blazejewski for every 10 or 15 minutes you spent with anyone who filed a complaint against him. You refused to even talk to witnesses to complaints filed against him by individual members.

(Emphasis added). In the same letter, Zimnicky charged representative Anello with making the following statement:

On January 3, 1985, you told the officers of Local 514, "Those troublemakers are nuts if they think they'll get anywhere complaining to the General Office. Incumbent Business Agents have all the power of the union to back them. The United Brotherhood has eighty million dollars. Those troublemakers can sue if they want to."

At his deposition, Anello would discuss only in general terms his handling of grievances filed by the union members. He asserted that, to elicit a response from the International, the union members simply had to write a letter to the General President, who would assign a representative to investigate the complaint. He stated that he understood his role in the grievance process to be conciliatory, "to get people to work together," rather than fault-finding and to help the parties "bury the hatchet." However, Anello asserted that he knew he had the power to discipline union business agents if they violated the union constitution. Anello reported back to the General President of the United Brotherhood after every assignment he received. However, Anello produced no record, letter, written report, or other document regarding his "investigations" of the hiring hall abuses; nor could he even recall any specific action taken by himself or the General President of the United Brotherhood prior to Blazejewski's retirement to alleviate the hiring hall discrimination. During his deposition, Anello claimed that he could not recall how Blazejewski had handled the work referrals — even though Anello handled many of these grievances between 1982 and 1986.

Even after his retirement as business agent, Blazejewski wrote a letter in November 1986 to Anello regarding the request of former union member Eugene Cardoni to be reinstated with the union. In that letter, Blazejewski advised Anello that Cardoni had brought this lawsuit against the union and that "any action you take on Cardoni's request may have an effect on this lawsuit." Furthermore, Blazejewski confided, "I believe this request [for reinstatement] is only the first of many like it that will soon follow. I would be willing to speak `off the record' to you about some of these matters any time you would like." Only a person supremely confident of his past intimate relationship with the International representative would have the temerity to write a letter at this point still endeavoring to perpetuate his control over the carpenters.

III. A.

The International's failure to intervene in response to its members' repeated supplications might not invite liability if indeed it lacked the control over Blazejewski to step in and correct the abuses. However, Anello's and the International's consistent failure to come to the aid of its grieving members and to discipline the formidable Blazejewski stands in stark contrast to the constitutional powers and duties of the United Brotherhood. These powers were granted in pursuit of the stated union objective to "elevate the moral, intellectual and social conditions of all [its] members and to improve the trade in every way possible." Union Constitution § 2.

According to the International's constitution, the United Brotherhood's authority over its subordinate local unions and district councils is fundamental and far-reaching. The International controls the very existence of these subordinate bodies, retaining the power to "establish or dissolve any Local Union or Council" where the "General President finds that it is in the best interests of the United Brotherhood and its members." Union Constitution § 6A. In addition, the United Brotherhood guarantees that when exercising its power to establish, dissolve, or merge subordinate union entities, the "vested rights of the members shall be preserved." Union Constitution § 6A (emphasis added). These rights include the right to attend and participate in meetings, to vote, to nominate candidates and to be nominated and run for office or business representative, Union Constitution § 6A, the exercise of the very rights which are the genesis of the issue in this case. The constitutional recognition of the right to vote and participate in union meetings implicitly includes the right to do so without coercion, intimidation, or retaliation.

To implement its broad plenary powers over the local unions and its power to protect member's vested rights, the constitution grants the International the right to "regulate and determine all matters pertaining to the various branches and subdivisions of the trade." Union Constitution § 6B. In contrast, the governing authority of the subordinate local unions only extends to making such laws "which do not conflict with the laws of the International Body." Union Constitution § 6C. More specifically, the International possesses the right "to protect the interests and rights of the members whenever the affairs of the subordinate body are conducted in such a manner as to be detrimental to the welfare of the members." Union Constitution § 6D (emphasis added).

In addition, the constitution requires the United Brotherhood to enforce the laws which govern it and its subordinate bodies: "The United Brotherhood shall enact and enforce laws for its government and that of subordinate Locals and Auxiliary Unions and District, State and Provincial Councils and members thereof." Union Constitution § 6E (emphasis added). Obviously, one of the fundamental principles governing the conduct of the union organization is that each agent of the union must carry out his responsibilities to the union membership so as not to infringe upon the members' constitutionally-vested rights, including the obvious and basic right to work. This principle adheres in the Council's affirmation to "elevate the . . . social conditions of all working men," "to assist [its] members in procuring employment and to protect [its] members . . . against any injustice that may be done to them." Preamble, Union Constitution § 3 (emphasis added). Here, the International failed to enforce its broad constitutional commitment to its local members.

The International also neglected to enforce specific by-laws governing Local 514. The United Brotherhood's By-Laws provide that it shall have fundamental control over the qualifications, training, nomination, compensation, election, and retirement of local business agents such as Blazejewski. United Brotherhood's General By-Laws § 31. Thus, for example, the United Brotherhood's By-Laws require every local union or district council whose members are employed in the construction industry to have a full-time Executive Officer or Business Representative. United Brotherhood's General By-Laws § 31C. Business Representatives must be elected by secret ballot of the union membership, serve a term of office no longer than four years, participate in training programs, and retire at age 70. United Brotherhood's General By-Laws §§ 31(B), (C), (E), (F). Consequently, the International required Blazejewski to retire in 1986 in accordance with its General By-Laws. However, the International did little else to require Blazejewski to abide by these laws vis-a-vis his conduct toward the plaintiff carpenters.

Most significantly, the International took no action following the marked ballot election of 1979, even though such an election contravened By-Law § 31(F) providing that "the election of officers and elected Business Representative(s) shall be by secret ballot." Thus, the United Brotherhood's failure to prevent reprisals against union members allegedly resulting from the marked ballot election, constitutes a breach of its duty to enforce the General By-Laws governing the locals. The union's constitution nowhere countenances any abdication of the International's law-enforcement responsibility.

This duty upon the International to exercise its plenary powers to enforce the union laws governing the local unions and to protect the members' inalienable right to work is squarely at issue in this case. International representative Anello evidenced full awareness of this duty when asked at his deposition, "You allow [the locals] to run their own affairs as they see fit?" Anello responded, "Not as they see fit; in coordination with the constitution and local bylaws." (Emphasis added).

However, contrary to defendant Anello's statement and the express language of the constitution, the majority reads this constitution not to require the International to do anything to protect the interests of its dues-paying members. Under the majority's reading, an investigation by the International of local union affairs is purely a matter of discretion, unfettered by its constitution, and therefore requires no remedial action. The majority suggests that the obligatory language placed in the constitution requiring the International to enforce laws governing the locals may relate only to a duty to enforce the structure of union government, but the majority offers no principled basis rooted in the text of the constitution or in labor law or practice for this narrow reading. Majority Op. at 1292. I believe that the union's inclusion in its constitution of the phrase "shall enforce" cannot be so lightly set aside.

Under a more generous reading, this provision in the constitution provides protection not only for the "structure" of the union in the abstract sense suggested by the majority but also assures the enforcement of laws which safeguard the vested rights of union members. The union members reasonably could have expected such protection from the International when they sought entrance into the union.

Here, the United Brotherhood's failure to enforce laws governing the election and conduct of local business representatives, "the welfare of the members," and hiring hall rules arguably constituted a breach of this constitutional provision. I do not suggest, as the majority charges, that the union constitution would require the International to "intervene to rectify every possible abuse by the locals." Majority Op. at 1292. The abuse at issue here, however, strikes at the deprivation of the union members' fundamental right to earn a living, and directly implicates the very reason for the union's existence, the fair and orderly advancement of that right.

According to the International's constitution, the responsibility to oversee the conduct of the locals generally falls upon the General President of the United Brotherhood who "shall supervise the entire interest of the United Brotherhood, and perform such duties as the Constitution and Laws of the United Brotherhood may require." Union Constitution § 10G. To carry out the constitutional requirement of safeguarding members' vested rights and protecting "the welfare of the members," the General President can institute grievance procedures. Section 57 of the Union by-laws provides for the procedures whereby an aggrieved union member can appeal to the Brotherhood President. Representative Anello summed up these procedures at his deposition as follows:

Local union membership if it's got [sic] a problem goes to the local union. If it can't get the problem resolved in the local union, then if there's a council involved he could write to the council. If the council don't [sic] resolve it, then he can write to the general office [of the United Brotherhood]. When they write to the general office, one of our guys gets assigned and we go in. If he's not happy with me, he can appeal what I do to the General President.

Although Anello correctly summarized the procedures to be followed, the evidence also supports inferences that he knew of the plaintiffs' grievances and investigated them but that he and the International ignored the substance of these procedural protections. These "investigations" generally worked to Blazejewski's favor, not the plaintiff carpenters', by insulating him from further disciplinary action. Indeed, letters written by the plaintiffs to the General President and to Anello allege that Anello was biased in these investigations: spending much time in private consultation with Blazejewski and very little time with the complaining carpenters. Thus, evidence in the record, particularly when plaintiffs are given the benefit of all inferences to which they are entitled as the non-moving party, supports the conclusion that the United Brotherhood and Anello knew about Blazejewski's misconduct, but refused to do anything about it for seven years. Meanwhile, the plaintiffs were cruelly denied the opportunity of a livelihood.

The majority contends that the International took reasonable steps to investigate the allegations of hiring hall discrimination in 1983 and made a reasonable decision not to grant relief while the same claims were pending before the NLRB. Majority Op. at 1290-91. I respectfully suggest, however, that the majority is straining to read the record in the light most favorable to the party which has moved for summary judgment. The majority's attempt to depict the International's 1983 "investigation" as responsive to the plaintiff's hiring hall complaints is not supported by the record. The International has not supplied a single letter or document detailing its "investigation" of the hiring hall in 1983 or containing any formal recommendation that the International not grant relief. Indeed, the lack of description of the International's investigation of hiring hall discrimination before 1986 gives rise to a reasonable inference that these complaints were ignored or lightly brushed aside by the United Brotherhood.

Furthermore, the record supports the inference that the International and its representative recognized the improprieties in Blazejewski's hiring system. Anello's deposition demonstrates that he knew that Blazejewski's work referral system unfairly discriminated against local members. In 1986, shortly before Blazejewski's retirement, Anello again investigated the hiring hall complaints. This time he finally concluded that the United Brotherhood "should go in and make certain changes" to "reconstruct a way of referring people to work so it was fair." To avoid offending Blazejewski, however, Anello recommended that such changes should wait until Blazejewski retired and a new business agent was elected.

The International's decision in 1986 to finally rectify the unfair hiring hall situation is curious if, as the majority concludes, it had in 1983 come to the considered determination following a proper investigation that the same allegations did not warrant intervention. Although final conclusions at this stage in the litigation are necessarily partially speculative, I believe the record demonstrates that the real reason behind the International's "change of heart" over the hiring hall situation was its unwillingness to challenge Blazejewski while he was in power, not its determination that the hiring hall practices were in conformance with union laws.

Thus, the record supports that although Anello knew of the abuses in the conduct of the local's hiring hall system as early as 1982, when the carpenters first complained to him, he and the International were unwilling to act as long as Blazejewski was business agent, even though the constitution empowered and required them to take action. Anello and the United Brotherhood knew about the discriminatory work referral system, they had the power to correct it, they had the duty to correct it, they purported to investigate it, and yet they supinely did nothing.

In sum, I believe the record supports that the United Brotherhood failed over a seven-year period to enforce its constitution and by-laws regarding the powerful office of business agent, especially fair work referral rules, and to guarantee the vested rights of its brethren to vote and dissent, in contravention of the mandate contained in the union constitution.

This court may affirm the grant of summary judgment only if we determine that there is no genuine issue of fact in dispute. This record demonstrates that the plaintiffs have raised a genuine disputed issue of fact regarding the United Brotherhood's liability to the plaintiffs for breach of its constitution in violation of section 301(a) of the LMRA. This court has held that, "the International Constitution is, as a matter of law, a contract between the International and its subordinate bodies." Tile, Marble, Terrazzo, et al. v. Local 32, 896 F.2d 1404, 1414 (3rd Cir. 1990). When an international's breach of contract gives rise to liability under section 301(a) of the LMRA ( 29 U.S.C. § 185(a)), an action for this breach can be maintained by the union members themselves. See Lewis v. International Bhd. of Teamsters Local 771, 826 F.2d 1310, 1314 (3rd Cir. 1987).

B.

Alternatively, the record contains sufficient evidence to raise a disputed issue as to whether the International supported, ratified, or encouraged the alleged abusive conduct of Blazejewski and thus should share in the local defendants' liability for breach of the duty of fair representation. The majority correctly observes that the Supreme Court's decision in Carbon Fuel Co. v. United Mine Workers of America, 444 U.S. 212, 100 S.Ct. 410, 62 L.Ed.2d 394 (1979), held that, in absence of direct contractual liability, principles of common law agency apply to the question of a union's liability for acts of union members, as provided expressly in section 301(e) of the LMRA:

For the purposes of this section, in determining whether any person is acting as an "agent" of another person so as to make such other person responsible for his acts, the question of whether the specific acts performed were actually authorized or subsequently ratified shall not be controlling.

29 U.S.C. § 185(e) (emphasis added). Thus, a union may be held liable for members' acts not actually authorized by it, as long as the union supported or encouraged the acts within the meaning of Carbon Fuel. As Justice Powell observed in the term following Carbon Fuel, such encouragement or support will usually be subtle because rarely does a union body broadcast its affirmance of unlawful behavior by union members. Complete Auto Transit, Inc. v. Reis, 451 U.S. 401, 418 n. 1, 101 S.Ct. 1836, 1846 n. 1, 68 L.Ed.2d 248 (Powell, J., concurring). Evidence in the record showing that the United Brotherhood knew about the alleged abuses for years and purported to honestly investigate the allegations without recommending any reforms until after Blazejewski's retirement reasonably supports the inference that the International acted in bad faith and encouraged, supported, or ratified the abuses complained of in this lawsuit.

The Supreme Court in Carbon Fuel concluded that the coal miners' union could not be said to have instigated, supported, ratified, nor encouraged the unlawful strikes simply because the union failed to use "all reasonable means available to it to prevent the strikes or bring about their termination." Carbon Fuel, 444 U.S. at 213, 100 S.Ct. at 412. As such, the Court overruled the "failure to use best efforts" doctrine as a basis of vicarious liability formerly advanced by this court and other courts. Pittsburgh-Des Moines Steel Co. v. United Steelworkers, 633 F.2d 302, 307 (3d Cir. 1980). In its strong reliance on Carbon Fuel, the majority appears to blur the distinction between the discredited "best efforts theory" and the still viable doctrine of ratification.

The Supreme Court was careful to point out in Carbon Fuel that, although the union there did not exhaust all reasonable means to help end the illegal strikes, the union made a concerted effort to get the members to return to work. The Court added that there was no suggestion that the union's efforts to end the strikes were not undertaken in good faith. Carbon Fuel, 444 U.S. at 214 n. 1, 100 S.Ct. at 412 n. 1. Furthermore, the Court found justification for the union's failure to impose discipline upon the striking miners on the grounds that the union believed "such action might only aggravate a bad situation." Id. In light of the union's good faith efforts to end the strike, the Court refused to hold the union liable for this failure.

I do not share the majority's conclusion that the United Brotherhood's position finds strong support in Carbon Fuel, opinion at 1288, a case distinguishable in important respects. Unlike Carbon Fuel, here the plaintiffs allege that the International acted in bad faith in purporting to investigate their grievances over a period of years. They maintain that representative Anello displayed favoritism toward Blazejewski in the conduct of his "investigations." This allegation is bolstered by the letter in 1986 sent to Anello from Blazejewski asking for an "off the record" consultation to discuss the future of plaintiff Cardoni's union membership. A jury could reasonably infer that, unlike the presumably well-meant efforts by the union in Carbon Fuel, the United Brotherhood's investigations here were made in bad faith, that they insulated and protected Blazejewski from discipline, and that they encouraged him in his discriminatory treatment of the unsubmissive carpenters. In addition, Carbon Fuel concerned a union's legal liability to an employer, not its direct responsibility to its own members.

Consideration of common law agency principles counsels against dismissing plaintiffs' action against the United Brotherhood on summary judgment. Although local unions are legal entities distinct from the parent body,

[I]n some instances, however, the parent organization may be held liable for the conduct of its locals on theories of agency, depending on the degree of control exercised by the former over the latter, or on the relationship existing between the two unions, or, perhaps, on the theory that the international union ratified the acts of the local after they were performed.

100 A.L.R. 2d 362 (1965) (emphasis added). Well-settled principles of common law agency establish that the failure to act to repudiate an unauthorized transaction can constitute a ratification of that transaction. See Restatement 2nd of Agency § 94 (1958). However, by upholding the grant of summary judgment in favor of the United Brotherhood in the face of its gross failure to act here, the majority in effect holds that failure to act can never constitute ratification.

The majority implies, see footnote 7 of the opinion at 1290, that "common law agency principles" do not encompass the doctrine of ratification by a failure to act and states that failure to act is "insufficient as a matter of law." Of course, agency principles apply to determine the International's liability, but I must vigorously disagree that agency liability always requires some affirmative word or deed. I dare say that this court has never adopted such a proposition and under Carbon Fuel it cannot do so here.

Indeed, authorities on agency law and numerous labor cases dispute the majority's novel proposition. The commentary to section 94 of the Restatement 2nd of Agency states that "silence under such circumstances that, . . . one would naturally be expected to speak if he did not consent, is evidence from which assent can be inferred." Id. (emphasis added). "In the agency field," the commentary explains, "failure to object to the doing of an act has frequently been held to create authority to do future acts." Appendix, Restatement 2d, Agency § 94 (case citations omitted). Unlike in Carbon Fuel, where the union repeatedly objected to the strike and instructed the miners to return to work, there is evidence in this record that the United Brotherhood never remonstrated nor objected to the market ballot election or Blazejewski's alleged hiring hall reprisals until after his retirement in 1986. A jury could reasonably find that the failure to object to these repeated abuses or to intervene to stop threatened reprisals of which the International was aware in effect constituted support or authorization by the International for Blazejewski to continue his discriminatory misconduct.

The majority charitably concludes that the United Brotherhood's alleged failure to intervene over a seven-year period despite repeated "investigations" conducted negligently or in bad faith amounts to merely "tunnel vision" on the part of the International and that it does not show encouragement of Blazejewski's conduct. Majority Op. at 1289. I respectfully submit that that conclusion is quintessentially a question for a jury. The subtle inferences to be drawn from a supervisor's failure to intervene to halt egregious conduct by one of his subordinates over an extended period of time involves the careful weighing of testimony and the assessment of the credibility of live witnesses which ordinarily should be considered by a jury.

Thus, the Restatement 2d of Agency declares that "[w]hether or not [an inference of ratification] is to be drawn is a question for the jury, unless the case is so clear that reasonable men could come to but one conclusion." Restatement 2d of Agency, § 94. Moreover, the identification of a defendant as an international union body, rather than a local body, does not alter the common law agency principles applicable under Carbon Fuel. The same principles for discerning when ratification occurs apply to both entities.

The majority concludes that the International's decision not to intervene during the pendency of certain NLRB proceedings "could not have been unreasonable." Majority Op. at 1291. First, the International's duty and response to the complaints of its members is independent of any action or lack of action by the NLRB. Nothing in the International's constitution or elsewhere suggests that the International's duty to enforce local laws and the agency principles governing the International are altered because of the independent action pursued by the labor board. Here, the particular NLRB proceedings affecting some of the plaintiffs and whatever settlements were reached as a result of those proceedings are not before this court, are not in the record before us, and we would have great difficulty drawing any conclusions about those proceedings based on this record. Secondarily, some of the charges filed with the NLRB were found to have merit. This should have been further confirmation to the International that serious wrongdoing was occurring with the local's hiring hall. Ultimately, the question of the International's reasonableness in failing to intervene to remedy the hiring hall situation should be considered by a jury.

Our sister circuit courts, when considering circumstances far less egregious than we have here, have held unions liable under the theory of ratification for their failure to intervene effectively to halt unauthorized conduct by their members. Thus, in Consolidation Coal Co. v. Local 1702 U. Mine Wkrs., 709 F.2d 882 (4th Cir.) cert. denied 464 U.S. 993, 104 S.Ct. 487, 78 L.Ed.2d 683 (1983), the court imposed liability on the local union for its failure to take effective steps to end an illegal work stoppage, declaring that, "[a] local union's inaction in the face of an illegal work stoppage by all of its members may constitute ratification of the work stoppage `where the union's efforts to return strikers are so minimal that the union's approval or encouragement may be inferred.'" Id. at 886 (citations omitted).

More recently in Yellow Bus Lines, Inc. v. Local Union 639, 883 F.2d 132 (D.C.Cir. 1989) vacated in part 913 F.2d 948 (D.C. Cir. 1990), the court held a bus drivers' union liable for its failure to intervene to halt the malicious destruction of property by its representatives during a strike, even though the union did not "openly encourage or embrace the tactics" employed. Yellow Bus Lines, 883 F.2d at 136. There, the court concluded that the union had actual knowledge of the destructive acts but failed to investigate the allegations or curb any excesses of the strikers. The court declared,

[T]he combination of the Local's notification of events early in the strike, coupled with the complete failure to act on that knowledge, fulfills the requirement of "proof . . . that the union approved the violence which occurred." . . . From the Local's apparent lack of concern with the violence brought to its attention, the jury plausibly could conclude that the Local "knowingly tolerated" this state of affairs. No more is required to support a finding of ratification.

Id. (citations omitted) (emphasis supplied). Here, evidence of the United Brotherhood's "knowing toleration" of hiring hall abuses for years likewise supports the inference of ratification under common law agency principles.

Other cases since Carbon Fuel also have held unions liable for their failure to act to stop unauthorized conduct by their members. In Prater v. UMWA, 793 F.2d 1201 (11th Cir. 1986), the court held that the international union was liable for its representatives' failure to do anything to halt the members' violent interference with the operation of non-union mines, because "by failing to take any action to stop the violence, [international] union officials acquiesced in or ratified the illegal activities of the union miners." Id. at 1210. See also North River Energy Corp. v. United Mine Workers, 664 F.2d 1184, 1189 (11th Cir. 1981) (holding that a legitimate inference could be drawn that the local union "authorized" a strike by making a collective decision not to return to work). Similarly, in another case holding the local union liable for unfair labor practices committed by its members, the court considered relevant factors supporting liability for failure to intervene, stating:

[G]iven the length of time, the frequency of confrontations by Local 3 members with plaintiff's employees, the repeated threats, express and implied, of personal violence, . . . Local 3's failure to take any action . . . lends support for our conclusion that the Local, through its Executive Board, was supporting and encouraging, and authorized and ratified, the unfair labor practices. . . .

United Tech. Com. v. Intern. Broth. of Elec. Wrkrs., 597 F. Supp. 265, 284 (S.D.N.Y. 1984). Consideration of the same factors supports international union liability here.

The cases cited by the majority in support of its holding absolving the International of liability are either inapposite, easily distinguished from the instant situation, or actually support liability against the United Brotherhood. In Wilkes-Barre Publishing Co. v. Newspaper Guild of Wilkes-Barre, Local 120, 647 F.2d 372 (3rd Cir. 1981) cert. denied 454 U.S. 1143, 102 S.Ct. 1003, 71 L.Ed.2d 295 (1982), the employer sued the international union on the grounds that it induced the local union to breach a collective bargaining agreement between the employer and the local, and this court upheld the international's liability on that basis. The majority opinion seems to imply that the court in Wilkes-Barre Publishing, by relying on the international's inducement of the breach, intended to discredit the ratification doctrine. To the contrary, this court expressly stated in Wilkes-Barre Publishing that the employer did not rely on the ratification doctrine and the court, therefore, did not need to consider it as an alternative basis for liability. Id. at 382, n. 7. Thus, I fail to see the relevance of Wilkes-Barre Publishing to the present case which squarely presents the question of union ratification of its members' illegal conduct.

Another case relied on by the majority, Chapa v. Local 18, 737 F.2d 929 (11th Cir. 1984) is readily distinguished. There, the court merely held that constructive knowledge by an international union representative of possible illegal activity on the local level is not sufficient to impose a legal duty to intervene, where the international union is a mere spectator at local meetings. In this case, where the carpenters complained directly and incessantly to the United Brotherhood, we have evidence of actual knowledge, not mere constructive knowledge, of hiring hall abuses. In addition, here we have evidence of affirmative acts committed by the International in its purportedly bad faith investigations of Blazejewski and a constitutional obligation on the part of the United Brotherhood to enforce union laws on the local level. Both are significant features absent in Chapa.

The majority's final case, Rodonich v. House Wreckers Union Local 95, 817 F.2d 967 (2nd Cir. 1987), actually supports a finding of ratification by the United Brotherhood here. In Rodonich, a case like the present one involving unlawful discipline of dissenting union members, the court stated that ratification by an international union occurred where the international "affirmed the discipline imposed on plaintiffs with full knowledge that it was part of an overall scheme to suppress dissent." Id. at 973. However, after a full jury trial, the court in Rodonich concluded that there was insufficient evidence to attribute the international with such knowledge. On the other hand, in the present case evidence in the record shows that a jury reasonably could find that the United Brotherhood and its representative Anello were well aware of Blazejewski's longtime, persistent campaign to suppress dissent among the union members: the marked ballot election with evidence of subsequent reprisals is sufficient to establish such a reasonable inference.

C.

Although some of the above-cited cases imposing liability on a union body considered a union's liability to an employer for ratification of members' conduct, such liability is even more justified in cases involving purely intra-union conduct, where the union's power over and duty to its membership is greater and more defined. Plaintiffs, who belong to the union, allege that they have been tortiously discriminated against by a union representative in the carrying out of his union-delegated responsibilities. Plaintiffs are dues-paying members of the International, beneficiaries of its constitution, and subject to the plenary supervisory control of the United Brotherhood. An international union's alleged breach of its responsibility toward its individual members, who have not the bargaining leverage of an employer, calls for more careful and judicious restraint in granting summary judgment for an international and its representatives then is exercised by some courts when considering the liability of an international towards an employer or third party. Indeed, this watchful approach is in keeping with the concerns expressed by the Congress which passed the Taft-Hartley amendments of 1947 to the National Labor Relations Act, promulgated as the Labor Management Relations Act of 1947, to which I have already referred.

The courts and the National Labor Relations Board have focused on redressing those hiring hall practices which restrain union members in the exercise of their rights under the Act. See 29 U.S.C. §§ 157, 158(b)(1)(A). Thus, cases have held labor organizations liable, including internationals, for refusing to refer union members to work through a hiring hall in retaliation for their participation in intra-union dissent or other activities critical of incumbent union policies or leadership. See Farmer v. United Brotherhood of Carpenters Joiners, 430 U.S. 290, 97 S.Ct. 1056, 51 L.Ed.2d 338 (1977); see also 73 ALR Fed. 171, at § 5(b) and cases cited therein. Other illegal hiring hall practices have also been addressed by the courts, including the failure to accord members access to hiring lists, the refusal to honor employer requests, the failure to refer workers in their proper order, and the failure to advise members of hiring hall procedures. 73 ALR Fed. 171, 181-82.

IV.

In sum, I would hold that the plaintiffs have demonstrated a genuine disputed issue of fact both as to whether or not the United Brotherhood breached its constitutional obligation to enforce local union laws and whether or not the United Brotherhood encouraged, supported, or ratified Blazejewski's alleged discriminatory conduct.

Accordingly, I would reverse the district court's grant of summary judgment in favor of the International Union and the Local Union defendants on the LMRA claims and remand to the district court for further proceedings consistent herewith.