490 F.2d 213 (7th Cir. 1974), 73-1065, Brennan v. Independent Lift Truck Builders Union

Docket Nº:73-1065.
Citation:490 F.2d 213
Party Name:Peter J. BRENNAN, Secretary of Labor, Plaintiff-Appellant, v. INDEPENDENT LIFT TRUCK BUILDERS UNION, Defendant-Appellee.
Case Date:January 18, 1974
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

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490 F.2d 213 (7th Cir. 1974)

Peter J. BRENNAN, Secretary of Labor, Plaintiff-Appellant,



No. 73-1065.

United States Court of Appeals, Seventh Circuit.

January 18, 1974

Heard Nov. 30, 1973.

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Harlington Wood, Jr., Asst. Atty. Gen., Robert E. Kopp, Atty., Dept. of Justice, Washington, D. C., Henry A. Schwarz, U.S. Atty., Danville, Ill., for plaintiff-appellant.

Sherman Carmell, Sheldon M. Charone, Stephen B. Horwitz, Chicago, Ill., for defendant-appellee.

Before CLARK, [*] CUMMINGS and PELL, Circuit Judges.

CUMMINGS, Circuit Judge.

This suit was filed by the Secretary of Labor pursuant to the Labor-Management Reporting and Disclosure Act (29 U.S.C. § 401 et seq.) challenging the validity of the December 18, 1970, election of Terry Payne as president of the Independent Lift Truck Builders Union. The Union is an independent organization that represents approximately 900 employees of the Hyster Company at its Danville, Illinois, plant.

On October 16, 1970, union member Arthur Wolfe was discharged as an employee of Hyster. The Union initiated grievance proceedings on his behalf. On October 27, 1970, he filed a charge with the National Labor Relations Board contesting his discharge; this resulted in the issuance of a complaint by the Board's General Counsel alleging that Hyster had violated Sections 8(a)(1) and 8(a)(3) of the National Labor Relations Act (29 U.S.C. § 158(a)(1) and 158(a) (3)). Because of this development, the Union did not pursue arbitration over the grievance it had filed with respect to Wolfe's discharge.

On September 22, 1971, a Labor Board trial examiner concluded that Hyster's discharge of Wolfe violated the National Labor Relations Act, and on January 26, 1972, the Board ordered Hyster to reinstate Wolfe with back pay. 195 NLRB 84. On March 20, 1973, this Court issued an order enforcing the Board's order. National Labor Relations Board v. Hyster Company (7th Cir. Nos. 72-1288 and 1403).

The Union's president has primary responsibility for enforcing the collective bargaining agreement with Hyster. Although paid by the Company, the president's entire working day is spent on union duties, mostly on Hyster's premises. As a discharged employee, Wolfe was barred by company rules from coming on its premises.

On November 23, 1970, Wolfe was nominated for the office of union president. However, on advice of counsel, the Union's election committee ruled that Wolfe's name could not appear on the ballot because of the following provisions of the Union's constitution:

'Article III, Section 1. * * * This Union shall consist of hourly-rated factory employees and other workers who may in the past, present or future be declared under the jurisdiction of this Union.' 'Article XV, Section 3. * * * Candidates must be members in the Union for 24 months previous to the day of election and must have completed three years of continuous employment with the employer of the members of this Union.'

In addition to relying on these constitutional provisions, the election committee reasoned that since the union president was required to give constant attention to problems and grievances occurring daily on Hyster's premises, Wolfe's inability to appear on the Company's premises as a discharged employee would disable him from carrying out the president's duties.

Although his name did not appear on the ballot at the December 18, 1970, election, Wolfe voted in that election and continued to mail his dues to the Union

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after his discharge. The Union permitted Wolfe to vote in the election because, without waiving any rights, it chose not to litigate an injunctive proceeding he had commenced against it. It did not cash his dues checks because it believed the dues might have to be returned if Wolfe were unsuccessful in the Labor Board case involving his discharge. The Union took the position that Wolfe was no longer a member, although he was never suspended or expelled through any trial-type proceeding.

Wolfe filed a post-election protest with the Union. After the protest was denied, Wolfe filed a complaint with the Secretary of Labor on February 1, 1971, claiming that he was a paid-up member in good standing with the Union and that as a result of the Labor Board General Counsel's December 7, 1970, complaint, he was still an employee of Hyster for purposes of the election.

On February 3, 1971, a Department of Labor compliance officer requested union president Payne to produce all the Union's records concerning that election. The Union, through counsel, sad it would only make available information with respect to Wolfe's status as a union member. Because of the Union's attitude, the Department of Labor...

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