Brennan v. Independent Lift Truck Builders Union

• Decision Date: 18 January 1974
• Docket Number: No. 73-1065.,73-1065.
• Citation: 490 F.2d 213
• Parties: Peter J. BRENNAN, Secretary of Labor, Plaintiff-Appellant, v. INDEPENDENT LIFT TRUCK BUILDERS UNION, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

490 F.2d 213 (1974)

Peter J. BRENNAN, Secretary of Labor, Plaintiff-Appellant, v. INDEPENDENT LIFT TRUCK BUILDERS UNION, Defendant-Appellee.

No. 73-1065.

United States Court of Appeals, Seventh Circuit.

Heard November 30, 1973.

Decided January 18, 1974.

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 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, said 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 served the Union and three of its officers with subpoenas ad testificandum and duces tecum on February 20, 1971. The subpoena duces tecum was limited to the Union's records "pertaining to the nominations of officers conducted on November 23, 1970, and the election of officers conducted on December 18, 1970 * * *." After union counsel wrote the Department of Labor asking for its statutory authority for issuing the subpoenas, a Labor Department attorney telephoned him to respond but was informed that he was on vacation. The Regional Solicitor of the Department of Labor thereupon wrote union counsel that compliance with the subpoenas was expected on their March 3, 1971, return date. Because the subpoenas were not honored, the Secretary brought an enforcement action on April 28, 1971. Hodgson v. Independent Lift Truck Builders Union, No. Cv 71-63-D (E.D. Ill.). On July 8, 1971, the district court entered an order in that action requiring compliance with the subpoenas. Due in part to union counsel's vacation plans, the parties agreed to July 28, 1971, as the date for complying with the district court's order of July 8, 1971, and the records were examined and the testimony was taken on July 28th.

On September 7, 1971, the Secretary of Labor brought this suit asserting that a union member in good standing had been denied the right to be a candidate and that union members were denied a reasonable opportunity to nominate and vote for the candidate of their choice, all in violation of 29 U.S.C. § 481(e).¹ The Secretary sought a declaratory judgment that the December 18, 1970, election for the office of union president was null and void and requested the court to direct defendant to conduct new nominations and an election for that office under the Secretary's supervision.

In an unreported opinion, the district court found that the Secretary's complaint was barred by the sixty-day limitation in 29 U.S.C. § 482(b).² The court also held that Wolfe was not a union member in good standing within the meaning of 29 U.S.C. § 481(e) "because at the time of nomination he was not an hourly-rated factory employee as required by the defendant union's constitution." Accordingly, the district court found no violation of the Labor-Management Reporting and Disclosure Act. We reverse.

Wolfe's complaint with the Secretary was filed on February 1, 1971. Under 29 U.S.C. § 482(b), the Secretary had sixty days from the filing of Wolfe's complaint to bring a civil action (note 2 supra). This 60-day statute of limitations is tolled by "conduct on the part of the union which impedes or delays the Secretary's investigation." Hodgson v. International Pressmen, 440 F.2d 1113, 1118-1119 (6th Cir. 1971), certiorari denied, 404 U.S. 828, 92 S.Ct. 63, 30 L.Ed.2d 56.³ Here defendant Union declined to cooperate with the Department's investigation or to honor its subpoenas, requiring the Secretary to obtain a judgment ordering the Union to honor the subpoenas. Pursuant to that judgment, which was not appealed, the records sought were made available to the Secretary and the requested testimony was taken on July 28, 1971.

The Union argues that its lack of cooperation should not toll the limitations period because it was at all times prepared to give the Secretary all documents relevant to Wolfe's complaint. Since the Secretary's complaint was no broader than Wolfe's, and could not have been under the Union's reading of Hodgson v. Steelworkers Local 6799, 403 U.S. 333, 91 S.Ct. 1841, 29 L.Ed.2d 510, its refusal to provide documents relevant to other aspects of the election assertedly did not hinder the Secretary's investigation. But the Steelworkers case makes clear that the Secretary is entitled to investigate and raise in his complaint violations of which the union member was unaware. 403 U.S. at 340-341, 91 S.Ct. 1841. The Secretary was therefore entitled to all records pertaining to the election, as the district court held in enforcing the subpoenas, and the Union was not entitled to compel a piecemeal investigation by insisting that he accept whatever part of the documents it offered. The fact that the Secretary did not find probable cause to allege any violations of which Wolfe was unaware cannot retroactively validate the Union's offer of partial compliance.

We hold that the statute of limitations was tolled from February 3, 1971, when the Secretary first requested this information from the Union, to at least July 8, 1971, when the court below compelled compliance with the subpoenas. The sixty-day limitation would therefore have ended on Saturday, September 4, 1971. Since September 5 was a Sunday and September 6 was Labor Day, September 7 was the next business day and a complaint filed on that day was still timely. Wirtz v. Pennsylvania Shipbuilders Association, 382 F.2d 237 (4th Cir. 1967). This resolution of the issue makes it unnecessary to decide the Secretary's further argument that the tolling continued until July 28, 1971, when the information was finally made available.

Addressing ourselves to the merits, we hold that 29 U.S.C. § 481(e)⁴ was violated because Wolfe was denied the right to be a candidate for union office. Wolfe was a member in good standing within the meaning of 29...