Brennan v. Local 3911, United Steelworkers of America, 71 C 74.

• Citation: 372 F. Supp. 961
• Decision Date: 16 March 1973
• Docket Number: No. 71 C 74.,71 C 74.
• Parties: Peter J. BRENNAN, Secretary of Labor, United States Department of Labor [successor to James D. Hodgson, resigned], Plaintiff, v. LOCAL 3911, UNITED STEELWORKERS OF AMERICA, AFL-CIO, Defendants.
• Court: U.S. District Court — Northern District of Illinois

372 F. Supp. 961

Peter J. BRENNAN, Secretary of Labor, United States Department of Labor successor to James D. Hodgson, resigned, Plaintiff, v. LOCAL 3911, UNITED STEELWORKERS OF AMERICA, AFL-CIO, Defendants.

No. 71 C 74.

United States District Court, N. D. Illinois, E. D.

March 16, 1973.

James R. Thompson, U. S. Atty., Beverly B. Lord, U. S. Dept. of Labor, Chicago, Ill., for plaintiff.

Gilbert Feldman, Kleiman, Cornfield & Feldman, Chicago, Ill., for defendants.

MEMORANDUM OF DECISION

TONE, District Judge.

This action was instituted by the Secretary of Labor under Title IV of the Labor Management Reporting and Disclosure Act of 1959, 29 U.S.C. § 401 et seq. In his original complaint the Secretary sought a judgment declaring the election of local union officers conducted by defendant on June 2, 1970 to be null and void and directing that a new election be conducted for all officers of the local under the supervision of the Secretary of Labor.

The issues raised by the pleadings with respect to secrecy of the ballot and inadequacy of safeguards during the election were resolved prior to trial by the agreement of the parties that the defendant will conduct its May 1973 nominations and June 1973 election of local officers under the supervision of the Secretary of Labor. The issues tried related to the validity of the following requirement contained in Article VII, Section 9 of the Constitution of the International Union:

"No member shall be eligible for election as a Local Union officer or Grievance Committeeman unless . . . he has attended at least one-half (½) of the regular meetings of his Local Union for thirty-six (36) months previous to the June 1970 election, unless his Union activities or working hours prevented his attendance."

Article I of the Constitution of the International makes that document also the constitution of each local union. Substantially the same meeting attendance requirement is repeated in the International Union Elections Manual and in Article IV, Section 5 of the by-laws of the local union.

The statutory standard under which the validity of these provisions is to be tested is Section 401(e) of the Act (29 U. S.C. § 481(e)), which provides in pertinent part as follows:

"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 reasonable qualifications uniformly imposed). . . ."

It is a prerequisite to the Secretary's challenge to the meeting attendance requirement in this action that the challenge be made in a complaint filed with the Secretary by "A member of a labor organization . . . who has exhausted the remedies available under the constitution and bylaws of such organization and of any parent body. . . ." Section 402(a) of the Act, 29 U.S.C. § 482(a). The Supreme Court has expressly held that before the validity of the Steelworkers meeting attendance rule can be challenged by the Secretary, union remedies for challenging the rule must be exhausted. Hodgson v. Local Union 6799, United Steelworkers of America, AFL-CIO, 403 U.S. 333, 91 S. Ct. 1841, 29 L.Ed.2d 510 (1971). Accordingly it is necessary to decide first whether the meeting attendance rule was challenged under union protest procedures.

Plaintiff contends that a protest raising the issue of the validity of the meeting attendance rule was made by Lewis Henderson, who was a member of the defendant local at the time of the challenged election and a candidate for the office of local union president in that election, and that his protest satisfied the requirements of Section 402(a) of the Act and Hodgson v. Local Union 6799, supra, 403 U.S. 333, 91 S.Ct. 1841.

The first opportunity to make protests occurred at the local union meeting held on July 12, 1970. Although the first regular meeting held following the election was on June 7, 1970, it was the long standing custom in the local, followed in this instance, for the Election Committee to make its report at the July meeting. Prior to the July meeting, a written protest containing 21 charges of violation was prepared by Henderson and signed by him and a number of other union members. The validity of the meeting attendance requirement was not challenged in any of the 21 charges. On the contrary, charge No. 3 read as follows:

"Candidates were nominated and elected, who did not have 18 meetings. Names were either forged, alterations were made, or tampered with the local union attendance book in violation of Art. 7, Sec. 9, of the International Constitution."

Henderson testified that he omitted the meeting attendance challenge from the protest because some members who signed the protest were not in agreement with that challenge. Another witness testified that the meeting attendance challenge was omitted because the meeting attendance rule was being challenged in another case pending somewhere else and it was thought that the decision in that case would ultimately be applied here. Henderson said that he left the meeting attendance point out intending to raise it orally at the meeting.

The testimony is in conflict concerning what happened at the July 12, 1970 meeting. Witnesses called by plaintiff testified that the Election Committee report was read and adopted without providing any opportunity for the presentation of protests. It is clear that the 21-point written protest was delivered to the recording secretary prior to the meeting and, after the approval of the Election Committee's report by the membership, was read out to the membership. Samuel Clay, president of the local and presiding officer at the meeting, testified that after the reading of the Election Committee report he called for questions on the report and there were several such questions but that while this was going on signatures on the written protest were being obtained outside the union hall and the written protest was not brought into the meeting and presented until after those at the meeting had voted on the Election Committee report and approved it. Clay says he ruled the protest out of order because it should have been presented at the time of the teller's report. He took a division of the house, which supported the chair. He then allowed the reading of the protest anyway. He testified that no one attempted to question the validity of the meeting attendance rule during the meeting. Several witnesses testified that when Henderson attempted to speak he was shouted down by the membership at the meeting. It is clear that, whatever the reason, the meeting ultimately erupted into disorder without an opportunity for Henderson to make any oral protest.

It appears from the evidence that Henderson did not have an adequate opportunity to make any oral protest at the July 1970 meeting of Local 3911. It must have been apparent to the presiding officer that members were on the premises who wished to submit protests, and the meeting should have been conducted in such a manner that protests could be heard. The union's constitution required as much. Accordingly, Henderson could properly have protested in the appeal before the International Commission even though he had not done so at the local meeting, in view of the failure to provide him an opportunity for oral protests at the local meeting.

An appeal was taken by forwarding the 21-point written protest to the secretary-treasurer of the International Union. This was done, not by Henderson but by Jerry Emert, one of the proponents of the protest, who was also a candidate for local union president in the election. Emert transmitted the written protest with his letter of July 15, 1970, in which he made the additional charges that at the July 12th meeting the president failed to follow Election Manual procedure by not letting the recording secretary read the written protest until the new officers had taken the oath of office and then only after an argument; and that the president of the meeting interrupted one member speaking on the subject of the election protest and told him to "sit down and shut up" and threatened him with physical violence unless he did as ordered. Nothing was said in Emert's letter about the meeting attendance requirement, and Henderson did not write a letter to the International Union's secretary-treasurer.

The International Executive Board appointed a two-man commission to hear the protest. The commission, consisting of John Stapay and Edward Sadlowski, both members of the International Union's field staff employed in a subdistrict other than the one in which the defendant local is situated, held a hearing on August 18, 1970. At the outset of the hearing the commissioners announced that they would consider only the written charges which had been presented, consisting of the 21 charges contained in the written protest Henderson had prepared and the two additional charges contained in Emert's letter of July 15th to the International's secretary-treasurer. The Commissioners then proceeded to hold an extensive hearing in which they took up each of the 23 charges.

Both Stapay and Sadlowski testified at the trial that no one attempted to raise the issue of the validity of the meeting attendance requirement at the August 18th meeting. Henderson, they said, did attempt to introduce matters other than the 23 written...