Harvey v. Calhoon

• Decision Date: 07 November 1963
• Docket Number: No. 168,Docket 28445.,168
• Citation: 324 F.2d 486
• Parties: Raymond H. HARVEY, Herman Shapiro and John Galletta, each of them individually and on behalf of all other persons similarly situated, Plaintiffs-Appellants, v. Jesse M. CALHOON, as President, or Herbert W. Peters, as Secretary-Treasurer of District No. 1 National Marine Engineers' Beneficial Association, AFL-CIO, Defendant-Appellee.
• Court: U.S. Court of Appeals — Second Circuit

324 F.2d 486 (1963)

Raymond H. HARVEY, Herman Shapiro and John Galletta, each of them individually and on behalf of all other persons similarly situated, Plaintiffs-Appellants, v. Jesse M. CALHOON, as President, or Herbert W. Peters, as Secretary-Treasurer of District No. 1 National Marine Engineers' Beneficial Association, AFL-CIO, Defendant-Appellee.

No. 168, Docket 28445.

United States Court of Appeals Second Circuit.

Argued October 23, 1963.

Decided November 7, 1963.

Burton H. Hall, New York City, for appellants.

David Scribner (Pressman & Scribner, New York City), for defendant-appellee.

Before LUMBARD, Chief Judge, and MEDINA and FRIENDLY, Circuit Judges.

FRIENDLY, Circuit Judge.

On August 12, 1963, plaintiffs, members of District No. 1, National Marine Engineers' Beneficial Association, a labor organization consisting of some 6000 marine engineers, instituted this action in the District Court for the Southern District of New York against the District Association, its President and its Secretary-Treasurer. The complaint asserted that the action was brought on behalf of plaintiffs and all other similarly situated members of the union to prevent the infringement of rights guaranteed by § 101 (a) (1) of the Labor-Management Reporting and Disclosure Act of 1959 (hereafter LMRDA), 29 U.S.C. § 411(a) (1); the jurisdiction of the district court was laid under § 102. Believing that in fact the complaint alleged only a violation of § 401 of LMRDA, 29 U.S.C. § 481, and that the Act did not confer jurisdiction on a federal court to entertain a suit by union members to prevent a violation of that section, Judge Feinberg dismissed the complaint for want of federal jurisdiction. We think the complaint alleged a violation of § 101(a) (1) and that federal jurisdiction existed under § 102.

The complaint set forth that bylaws, imposed upon District No. 1 by a District Executive Committee composed of officials of its various locals, provide that the only candidate whom a member may nominate for any office is himself; that the practice of the District prohibits a member from nominating himself for more than one District office; that the national constitution of the union further restricts members' right to nominate by providing that no member other than an incumbent official is eligible for nomination or election to a full-time elective office unless he has been a member for five years and has served 180 days or more of sea time on vessels covered by collective bargaining agreements with the national organization or its subsidiary bodies in each of two of the three years preceding nomination; and that the national constitution further provides that a candidate for the office of District President must have previously been elected and served as a full-time and paid official of an organization affiliated with the national body. The complaint prayed that an impending election under these provisions should be enjoined, as well as for other relief. An affidavit of plaintiff Harvey, submitted in support of a motion for a temporary injunction, enlarged upon the complaint by alleging that defendant was holding its first general election during the 90-day period beginning September 1, 1963; and that each plaintiff had been denied any right to nominate because he could nominate only himself but was ineligible for failure to meet the 180-day sea time requirement. Defendant's cross-motion to dismiss the complaint did not challenge plaintiffs' allegations but contended that these did not make out a case under § 101 (a) (1) of LMDRA and that in any event the court was without jurisdiction.

Title I of LMRDA, "Bill of Rights of Members of Labor Organization," was added during the Senate's consideration of the Kennedy-Ervin bill, S. 1555, 86th Cong., 1st Sess. (1959), as reported by the Committee on Labor and Public Welfare. The initial proposal by Senator McClellan, adopted on April 22, 1959, see NLRB Legislative History of Labor-Management Reporting and Disclosure Act of 1959, 1102, 1119 (1959), was substantially amended in a form proposed by Senator Kuchel and passed by the Senate on April 25, id. at 1220, 1239ff. The bill later passed by the House of Representatives and the statute as enacted contained provisions similar to Senator Kuchel's amendment. For our purposes the vital ones are the portion of § 101(a) (1) which declares that "Every member of a labor organization shall have equal rights and privileges within such organization to nominate candidates, to vote in elections or referendums of the labor organization * * *" and § 102, which reads as follows:

"Sec. 102. Any person whose rights secured by the provisions of this title have been infringed by any violation of this title may bring a civil action in a district court of the United States for such relief (including injunctions) as may be appropriate. Any such action against a labor organization shall be brought in the district court of the United States for the district where the alleged violation occurred, or where the principal office of such labor organization is located."

The Kennedy-Ervin bill had included a Title III — Elections which became Title IV of LMRDA. Section 401 contains a considerable number of substantive provisions. Among these are requirements concerning the frequency and manner of election of officers, distribution by the union of campaign literature at a candidate's request and nondiscrimination in the use of membership lists,¹ availability of such lists for inspection by a candidate, "adequate safeguards to insure a fair election * * * including the right of any candidate to have an observer at the polls and at the counting of the ballots," the notice of an election to be given to members etc. Most important here are the first and third sentences of § 401(e):

"(e) In any election required by this section which is to be held by secret ballot a reasonable opportunity shall be given for the nomination of candidates and every member in good standing shall be eligible to be a candidate and to hold office (subject to section 504 and to reasonable qualifications uniformly imposed) and shall have the right to vote for or otherwise support the candidate or candidates of his choice, without being subject to penalty, discipline, or improper interference or reprisal of any kind by such organization or any member thereof. * * * Each member in good standing shall be entitled to one vote."

Section 401 is followed by § 402, entitled "Enforcement." This says, in relevant part, that a member of a labor organization who has exhausted union remedies or has failed to obtain a final decision within three months after invoking them "may file a complaint with the Secretary of Labor within one calendar month thereafter alleging the violation of any provision of section 401"; and that

"(b) The Secretary shall investigate such complaint and, if he finds probable cause to believe that a violation of this title has occurred and has not been remedied, he shall, within sixty days after the filing of such complaint, bring a civil action against the labor organization as an entity in the district court of the United States in which such labor organization maintains its principal office to set aside the invalid election, if any, and to direct the conduct of an election or hearing and vote upon the removal of officers under the supervision of the Secretary and in accordance with the provisions of this title and such rules and regulations as the Secretary may prescribe."

Section 403, headed "Application of Other Laws," provides

"Sec. 403. No labor organization shall be required by law to conduct elections of officers with greater frequency or in a different form or manner than is required by its own constitution or bylaws, except as otherwise provided by this title. Existing rights and remedies to enforce the constitution and bylaws of a labor organization with respect to elections prior to the conduct thereof shall not be affected by the provisions of this title. The remedy provided by this title for challenging an election already conducted shall be exclusive."

It is plain enough that § 401 covers a much wider territory with respect to union elections than the guarantees of equal rights and privileges to nominate and to vote contained in § 101(a) (1). Whereas § 101(a) (1) is directed solely to basic rights of members, § 401 deals both with rights of members, which it grants with far greater elaboration and specificity than the earlier section, and with rights of candidates.

It is not contended that the instant action, brought before the distribution of ballots had begun and for the purpose of enjoining an election under the allegedly illegal provisions of the District's bylaws and the national's constitution, encounters the bar of the last sentence of § 403, making a suit by the Secretary of Labor the exclusive remedy "for challenging an election already conducted * * *."² Neither, in the view we take of the case, need we consider the much mooted question whether the substantive provisions of § 401 (other than the provision noted in fn. 1) create claims enforceable by private pre-election suits in state or federal courts.³ For we hold that the complaint alleged a violation of § 101(a) (1), and that the district court had jurisdiction under § 102 to remedy it.

If the union's constitution and bylaws had provided that only paid officials could make nominations for District President and that...