BLE Intern. Reform Committee v. Sytsma

• Decision Date: 25 September 1986
• Docket Number: No. 85-3933,85-3933
• Citation: 802 F.2d 180
• Parties: 123 L.R.R.M. (BNA) 2922, 55 USLW 2299, 105 Lab.Cas. P 12,067 BLE INTERNATIONAL REFORM COMMITTEE, et al., Plaintiffs-Appellants, Secretary of Labor, Intervenor, v. John F. SYTSMA, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 180

802 F.2d 180

123 L.R.R.M. (BNA) 2922, 55 USLW 2299,

105 Lab.Cas. P 12,067

BLE INTERNATIONAL REFORM COMMITTEE, et al., Plaintiffs-Appellants, Secretary of Labor, Intervenor, v. John F. SYTSMA, et al., Defendants-Appellees.

No. 85-3933.

United States Court of Appeals, Sixth Circuit.

Argued Aug. 4, 1986.

Decided Sept. 25, 1986.

Jeffrey Freund, Bruce R. Lerner, argued, Bredhoff & Kaiser, Washington, D.C., Alan S. Belkin, Shapiro, Turoff & Gisser, Cleveland, Ohio, for plaintiffs-appellants.

Carol A. DeDeo, Barbara Johnson, argued, U.S. Dept. of Labor, Office of Sol., Washington, D.C., for intervenor.

Harold A. Ross, argued, Ross & Kraushaar, Cleveland, Ohio, for defendants-appellees.

Before KEITH and MERRITT, Circuit Judges, and CONTIE, Senior Circuit Judge.

CONTIE, Senior Circuit Judge.

This case presents the question, as an issue of first impression, of whether a challenge to the outcome of an international recall election must initially be filed with the Secretary of Labor pursuant to Title IV of the Labor-Management Reporting and Disclosure Act (LMRDA or Act). The plaintiffs-appellants filed a complaint in federal district court challenging the validity of such an election under Titles I and V of the LMRDA. The district court granted summary judgment for the defendants holding that any post-election challenge involving union officers was a Title IV claim subject to the exclusive remedy in Title IV over which the court lacked subject matter jurisdiction. For the following reasons, we find that a challenge to an international recall election is not cognizable under Title IV and, accordingly, that the district court erred in granting summary judgment for the defendants.

I.

Plaintiffs are individual members of the International Brotherhood of Locomotive Engineers (BLE), ¹ as well as the BLE International Reform Committee and Local 286, organizational plaintiffs which are suing on behalf of other BLE members. The defendants are the President, Vice-President and General Secretary-Treasurer of the BLE, and the BLE. The following allegations were set out in the amended complaint and were accepted as true by the district court.

The BLE is an international union comprised of approximately 32,000 members and 700 local divisions whose officers are elected pursuant to the terms of its constitution. The BLE constitution also contains a provision whereby BLE officers can be recalled from office if twenty-five percent of the active membership sign a petition to conduct a recall election for a particular officer, and then a majority of votes are cast during the election in favor of the officer's recall. This recall provision also contains the mechanism for replacing the recalled officer. When petitions are circulated for an officer's removal, nominations for a replacement officer can be successfully made by two percent of the active membership. The nominees' names are then placed on the recall ballot; if a recall is approved by majority vote, the nominee with the most votes becomes the new officer.

On August 7, 1984, a recall petition was circulated pursuant to the provisions of the International constitution with the aim of removing from office BLE President John Sytsma, one of the defendants in this law suit. Prior to the circulation of the recall petition, plaintiffs allege that Sytsma distributed a letter to every member of the BLE asking for their support in defeating the recall. The letters were printed on official BLE stationery and were distributed with the use of BLE funds. It was further alleged that while the petitions were being circulated, Sytsma distributed other letters to the various division officers, and had articles included in the BLE newspaper, all of which were aimed at defeating the recall. The letters were also printed on official BLE stationery and were prepared and distributed with the use of BLE funds.

On August 16, 1984, Sytsma conducted a meeting in Cleveland, Ohio for various BLE representatives. Plaintiffs allege that the meeting, which was subsidized with BLE funds, was orchestrated so as to gather support to defeat the recall and to intimidate representatives into resisting the recall. Similarly, plaintiffs contend that other meetings and activities were organized solely to resist the recall and were funded with BLE monies.

Despite these efforts, a requisite number of signatures were obtained to force the union to conduct a recall election. The election took place by mail between November 1984 and January 1985; the balloting closed on January 25, 1985. Under the procedures adopted for counting ballots, members were required to return their ballots to the secretary-treasurers of their local divisions by January 25th. Each local division was required to count the ballots which were cast in its division and then mail the final tally sheet to the accounting firm of Kubinec and Burg in Cleveland, Ohio for final counting. ² Tally sheets were to be received in Cleveland by 4:30 p.m. on February 25th. The recall was declared defeated by 189 votes; 5,387 of the votes which were counted were against the recall, and 5,198 votes were in favor of the recall. The votes from 141 of the local divisions, however, were never counted. Plaintiffs allege that the tally sheets from 100 local divisions were never received for a final counting, other tally sheets were not recorded because they differed in form from the tally sheets which were forwarded to the local divisions, at least 154 ballots were impounded at the local level and were never included on the tally sheets, and another 270 ballots were not recorded because they were mailed directly to either the BLE office or the office of Kubinec and Burg. The plaintiffs allege that many of the uncounted ballots were properly cast and that the defendants did not properly investigate the absence of particular ballots or the propriety of impounding some ballots. It was further alleged that the voting process did not ensure voter secrecy because union members were only provided with one voting envelope which contained the member's name on the outside of the envelope.

After pursuing internal union procedures without satisfaction, plaintiffs filed a complaint on June 26, 1985, in the United States District Court for the Northern District of Ohio alleging violations of Titles I and V of the LMRDA and Ohio contract law. The plaintiffs challenge the validity of the recall election on the grounds that the failure to count certain ballots and the lack of a secret ballot constitute violations of section 101 of the Act, 29 U.S.C. Sec. 411 (Title I). The complaint further alleged that some of Sytsma's actions taken in support of his candidacy constituted intimidation in violation of section 101. Plaintiffs also allege that the defendants' use of funds to resist the recall violated section 501 of the Act, 29 U.S.C. Sec. 501 (Title V). For relief, plaintiffs requested that the election be set aside, an accounting be conducted and damages and attorney's fees be awarded. Jurisdiction was alleged to exist pursuant to 29 U.S.C. Secs. 412 and 501(b), as well as 28 U.S.C. Secs. 1331 and 1337.

On July 19, 1985, defendants filed a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(1); defendants asserted that the district court lacked subject matter jurisdiction to entertain the claims because the claims were cognizable under Title IV of the LMRDA, 29 U.S.C. Secs. 481 et seq. Defendants maintained that Title IV provides an exclusive remedy for challenging Title IV violations whereby only the Secretary of Labor may file a civil suit in federal district court to set aside an election, see 29 U.S.C. Secs. 482, 483, and since the plaintiffs had failed to file their initial complaint with the Secretary, the district court could not entertain the claims.

Plaintiffs responded to this motion, arguing that a challenge to a recall election involving an international union officer was not covered by Title IV. Rather, plaintiffs asserted that Title IV principally governed only periodic, regularly scheduled elections of union officers. In support of their argument, plaintiffs proffered a letter, dated August 29, 1985, from Richard Hunsucker, the Director of the Office of Elections, Trusteeships and International Union Audits, United States Department of Labor, which stated that the Department of Labor would not accept the complaint challenging the outcome of a recall election of national or international union officers. ³

On October 9, 1985, the district court ruled in favor of the defendants, holding that the claims were, in essence, Title IV claims over which the court lacked jurisdiction. ⁴ The court concluded that Title IV governed any election of union officers, and that a post-election challenge was consequently subject to the exclusive remedy provision of Title IV. The court then concluded that the complaint involved in this case amounted to a post-election challenge governed by Title IV, stating:

Substantively, plaintiffs present a post-election challenge under Title IV. They claim a violation of their right to a secret ballot which is a right that Title IV guarantees. 29 U.S.C. Sec. 481(a). They allege that the defendants improperly interfered with their right to vote by intimidating union officials and not counting all the ballots cast. These are rights which Title IV assures. 29 U.S.C. [Sec. 481](e). Finally, they aver an improper use of union funds during the election, but it is Title IV which prohibits such expenditures. 29 U.S.C. Sec. 481(g).

The court did not accept the proposition that Title IV regulates only periodic, regular elections, despite the Secretary's interpretation supporting that proposition. See 29 C.F.R. Sec. 452.25. Instead, the court reasoned that the plain language of the statute and the legislative history ⁵ indicated that the Title IV requirements apply to recall elections, and the Title IV exclusive remedy applies to any post-election...