Brock v. International Union of Operating Engineers, Local Union No. 369, AFL-CIO

• Decision Date: 13 May 1986
• Docket Number: AFL-CI,D,No. 84-5130,84-5130
• Citation: 790 F.2d 508
• Parties: 122 L.R.R.M. (BNA) 2518, 104 Lab.Cas. P 11,849 William BROCK, Secretary of Labor, United States Department of Labor, Plaintiff-Appellant, v. INTERNATIONAL UNION OF OPERATING ENGINEERS, LOCAL UNION NO. 369,efendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 508

790 F.2d 508

122 L.R.R.M. (BNA) 2518, 104 Lab.Cas. P 11,849

William BROCK, Secretary of Labor, United States Department of Labor, Plaintiff-Appellant, v. INTERNATIONAL UNION OF OPERATING ENGINEERS, LOCAL UNION NO 369, AFL-CIO, Defendant-Appellee.

No. 84-5130.

United States Court of Appeals, Sixth Circuit.

Argued Aug. 2, 1985.

Decided May 13, 1986.

Raymond J. Donovan, Secretary, U.S. Dept. of Labor, Atlanta, Ga., William H. Berger, Atty., W. Hickman Ewing, Jr., U.S. Atty., Memphis, Tenn., W. James Ellison, Donald D. Carter, Jr. (argued), U.S. Dept. of Labor, Washington, D.C., for plaintiff-appellant.

Tim Edward, Lynn Agee, Berber, Berber & Agee, Memphis, Tenn., Deborah Godwin (argued) for defendant-appellee.

Before ENGEL and KENNEDY, Circuit Judges, and NEESE ^*, Senior District Judge.

ENGEL, Circuit Judge.

The Secretary of Labor appeals from a judgment entered in favor of the International Union of Operating Engineers, Local Union 369, AFL-CIO in the Secretary's action brought under Title IV of the Labor Management Reporting and Disclosure Act of 1959 (LMRDA). 29 U.S.C. Sec. 401 et seq., to set aside an election of officers conducted by the Union on August 11, 1981, insofar as it affected the election for the offices of business agent, recording-corresponding secretary, financial secretary, guard, and two Executive Board positions. After making oral findings of fact on the record in open court, the trial judge held that while a violation of the LMRDA had been established by the Secretary, the presumption arising therefrom that the violation may have affected the election had been overcome. The trial judge then went on to hold that the violation did not in fact affect the election, and entered judgment for the Union. We affirm, but on the alternate basis, raised by the Union but not directly ruled upon by the district court, that the Secretary's action must fail for failure of the complaining parties to exhaust internal union remedies as required by 29 U.S.C. Sec. 482(a)(1).

I.

In an effort to protect the rights of individual employees to participate in the choice of their own union representatives, subchapter IV of the Labor-Management Reporting and Disclosure Act of 1959, 29 U.S.C. Sec. 481, carefully sets forth discrete provisions governing the election of union officers by secret ballot, free of unethical and unlawful influence. Subsection (g) of 29 U.S.C. Sec. 481 provides:

No moneys received by any labor organization by way of dues, assessment, or similar levy, and no moneys of an employer shall be contributed or applied to promote the candidacy of any person in any election subject to the provisions of this subchapter. Such moneys of a labor organization may be utilized for notices, factual statements of issues not involving candidates, and other expenses necessary for the holding of an election.

Enforcement of the foregoing provisions of the Act is provided in section 482. Under section 482(a), a member of a labor organization who complains of a violation of the Act and who has first exhausted the remedies available under the constitution and bylaws of his union or has proceeded for three months after their invocation without obtaining a final decision, may file a complaint with the Secretary within one calendar month thereafter challenging the validity of the election. Section 482(b) further provides that the Secretary shall investigate the complaint and, if he finds probable cause to believe that a violation of the subchapter has occurred and has not been remedied, shall within sixty days after the filing of such complaint bring a civil action against the labor organization in the United States district court in which the labor organization maintains its principal office. Under these provisions, then, exhaustion of union remedies by a complaining union member is a prerequisite to a suit by the Secretary against the union under 29 U.S.C. Sec. 482(b). Moreover, because the Act provides no machinery whereby the Secretary may initiate action, the Secretary can take no independent action against a union until an aggrieved employee has filed a complaint.

The exhaustion requirement has two aspects: procedure and scope. Hodgson v. District 6, United Mine Workers, 474 F.2d 940, 944 (6th Cir.1973). The Union in this case does not dispute that its complaining members, James Russell and R.C. Ward, followed the union procedures and complained through proper union channels. The Union does, however, challenge the permissible scope of the Secretary's complaint in the district court, given the nature of the protests that were filed by Russell and Ward.

The Supreme Court has addressed the exhaustion issue in two cases. In Wirtz v. Local Union No. 125, Laborers' International Union, 389 U.S. 477, 88 S.Ct. 639, 19 L.Ed.2d 716 (1968) (Laborers' Union), the Secretary filed a complaint challenging the validity both of a general election of local union officers and of a runoff election necessitated by a tie vote for one office in the general election. The loser in the runoff election had protested internally only the conduct of that election, alleging that the practice of the local's secretary-treasurer of paying from union funds delinquent dues of selected members resulted in ineligible members being allowed to vote in the election. The Secretary's investigation disclosed not only that many ineligible members had voted in both the general and runoff elections, but also that 16 of the 27 candidates for office in the general election, including the complaining member's opponent, were ineligible.

The Supreme Court held that the Secretary was entitled to challenge the general election as well as the runoff election "because [the] union had fair notice from the violation charged by [the complaining member] in his protest of the runoff election that the same unlawful conduct probably occurred at the earlier election as well." Id. at 481, 88 S.Ct. at 641. The Court rejected the argument that the Secretary's complaint must be limited solely to the allegations made in the union member's initial protest, finding that "Congress, having given the Secretary broad investigative power, cannot have intended that his right to relief be defined by a complaining member's ignorance of the law or the facts or by the artlessness of the member's protest." Id. at 485, 88 S.Ct. at 643. The Court recognized that the statute was designed not only to responsibly redress members' election grievances, but also to foster union self-government. However, it felt that both objectives would be "furthered by permitting the Secretary to include in his complaint at least any Sec. 401 violation he has discovered which the union had a fair opportunity to consider and redress in connection with a member's initial complaint." Id. at 484, 88 S.Ct. at 643.

Three years later, in Hodgson v. Local Union 6799, United Steelworkers, 403 U.S. 333, 91 S.Ct. 1841, 29 L.Ed.2d 510 (1971) (Local 6799), the Court made it clear that the Secretary did not have authority to litigate every violation the investigation might reveal once a union member had exhausted internal union remedies concerning a particular complaint. In Local 6799, an unsuccessful candidate filed a written protest with the union, complaining of several violations including the use of union facilities to aid incumbents. After failing to obtain relief through union procedures, he filed a complaint with the Secretary of Labor. The complaint repeated the charge that union facilities had been used improperly and raised a new objection concerning a meeting-attendance requirement imposed as a condition of candidacy for union office. After investigating the complaint, the Secretary brought suit to invalidate the election for both improper use of union facilities and for imposition of unreasonable eligibility requirements.

The Court held that the complaining union member's failure to object to the attendance rule during pursuit of his internal union remedies barred the Secretary from later challenging the rule in court. The Secretary had contended that the statute authorized him "to investigate and litigate any and all violations that may have affected the outcome of an election once a union member has exhausted his internal union remedies concerning any violation that occurred during that election." Id. at 337, 91 S.Ct. at 1844. The Court rejected that argument, finding that the Secretary's position would leave the exhaustion requirement with "virtually no purpose or part to play in the statutory scheme" and would slight the congressional interest in avoiding unnecessary governmental interference with internal union affairs. Nevertheless the Court recognized that the exhaustion requirement should not be applied so stringently as to bar claims simply because union members are inexpert in framing their protests:

Of course, any interpretation of the exhaustion requirement must reflect the needs of rank and file union members--those people the requirement is designed ultimately to serve. We are not unmindful that union members may use broad or imprecise language in framing their internal union protests and that members will often lack the necessary information to be aware of the existence or scope of many election violations. Union democracy is far too important to permit these deficiencies to foreclose relief from election violations; and in determining whether the exhaustion requirement of Sec. 402(a) has been satisfied, courts should impose a heavy burden on the union to show that it could not in any way discern that a member was complaining of the violation in question. But when a union member is aware of the facts supporting an alleged election violation, the member must, in some discernible fashion, indicate to his union his dissatisfaction with those facts if he is to meet the exhaustion requirement.

Id. at 340-41, 91 S.Ct. at 1846.

Our circuit has addressed the exhaustion issue on...