Donovan v. Local Union No. 120, Laborers' Intern. Union of North America, AFL-CIO

• Decision Date: 21 July 1982
• Docket Number: D,AFL-CI,No. 81-1929,81-1929
• Citation: 683 F.2d 1095
• Parties: 110 L.R.R.M. (BNA) 3183, 94 Lab.Cas. P 13,701 Raymond J. DONOVAN, Secretary of Labor, United States Department of Labor, Plaintiff-Appellee, v. LOCAL UNION NO. 120, LABORERS' INTERNATIONAL UNION OF NORTH AMERICA,efendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1095

683 F.2d 1095

110 L.R.R.M. (BNA) 3183, 94 Lab.Cas. P 13,701

Raymond J. DONOVAN, Secretary of Labor, United States Department of Labor, Plaintiff-Appellee, v. LOCAL UNION NO. 120, LABORERS' INTERNATIONAL UNION OF NORTH AMERICA, AFL-CIO, Defendant-Appellant.

No. 81-1929.

United States Court of Appeals Seventh Circuit.

Argued Jan. 15, 1982.

Decided July 21, 1982.

Edward J. Fillenwarth, Jr., Fillenwarth, Dennerline, Groth & McCracken, Indianapolis, Ind., for defendant-appellant.

William W. Taylor, U. S. Dept. of Labor, Washington, D. C., for plaintiff-appellee.

Before CUDAHY, Circuit Judge, and PECK ^* and FAIRCHILD, Senior Circuit Judges.

FAIRCHILD, Senior Circuit Judge.

The Secretary of Labor ("Secretary") initiated this action under § 402(b) of the Labor Management Reporting and Disclosure Act of 1959 ("Act"), 29 U.S.C. § 482(b), to invalidate the June 25, 1977 election for the office of Secretary-Treasurer of Local No. 120 of the Laborers' International Union of North America ("Local"). The Secretary alleged that, by imposing an unreasonable qualification for office in violation of § 401(e) of the Act, 29 U.S.C. § 481(e), ¹ the Local had denied a member in good standing the right to be a candidate in that election. The member, Laurence L. Rose, Jr., was disqualified for the office of Secretary-Treasurer under a provision of the International's Uniform Local Union Constitution which states that a candidate for office "shall be literate and otherwise competent to perform the duties of the office for which he is a candidate." ² Upon finding that the provision violated 29 U.S.C. § 481(e), the district court nullified the election for the office of Secretary-Treasurer and, pursuant to § 402(c) of the Act, 29 U.S.C. § 482(c) ordered a new election to be held under the supervision of the Secretary. This appeal by the Local Union followed. The issues presented are (1) whether the Local Union was given the initial opportunity to consider the validity of the competency qualification as required by § 402(a), 29 U.S.C. § 482(a) of the Act, and (2) whether "competency" is a reasonable qualification for office under 29 U.S.C. § 481(e) when it is determined prior to the election by an appointed tribunal. Several other issues, relating to the propriety of the district court's election order, have been mooted by a special election held while this appeal has been pending, in compliance with that order. ³

I. The Facts

On May 9, 1977, Local No. 120 held a meeting to nominate candidates for its upcoming June 25, 1977 election. At that meeting Laurence L. Rose, Jr. was nominated for the position of Secretary-Treasurer. Prior to the nomination meeting, the Local's Executive Board ⁴ appointed three Judges of Election ⁵ to screen the candidates for office. The Judges of Election received and considered a protest alleging that Mr. Rose was incompetent for the office of Secretary-Treasurer, and they subsequently disqualified him on that ground.

Following the Local's appeal procedure, Mr. Rose protested his disqualification in a May 24, 1977 letter to the International Union's General Executive Board. After a hearing on the protest, the General Executive Board denied Mr. Rose's appeal in a letter dated July 29, 1977. Mr. Rose then filed a complaint with the Secretary of Labor in accordance with the provisions of 29 U.S.C. § 482(a). The Secretary initiated this action after concluding that the prescribed qualification was unlawful under 29 U.S.C. § 481(e).

II. Effect of the Special Election

At the threshold, we meet the question whether the intervening special election, held pursuant to the directions of the district court, moots the entire case. The Secretary, in his initial prayer for relief, sought nullification of the Local's June 25, 1977 election for the office of Secretary-Treasurer and an order requiring a new, supervised election. That relief was granted and the new election held. Because Mr. Rose lost the special election and the incumbent won, any determination by this court of the propriety of the 1977 election or of the relief ordered could not affect the parties' interests in who holds the office of Secretary-Treasurer.

However, in support of its order for a new election, the district court found the competency provision of the Local's Constitution to violate 29 U.S.C. § 481(e). This ruling is clearly not altered by a subsequent remedial election and remains binding on the Union. Therefore, the issue of the validity of the competency requirement is a live controversy subject to our determination.

III. The Exhaustion Requirement

Section 482(a) of Title 29 requires that a union member exhaust all internal union remedies before filing a complaint with the Secretary. Exhaustion of union remedies, along with investigation by the Secretary of the member's complaint, thus becomes prerequisite to a suit by the Secretary against the union under 29 U.S.C. § 482(b). In enacting the exhaustion requirement, Congress attempted to reconcile the somewhat contradictory goals of ensuring free and democratic union elections and minimizing governmental interference with those elections. Hodgson v. Steelworkers, 403 U.S. 333, 338-39, 91 S.Ct. 1841, 1845, 29 L.Ed.2d 510 (1971); Wirtz v. Bottle Blowers Assn., 389 U.S. 463, 470-71, 88 S.Ct. 643, 647, 19 L.Ed.2d 705 (1968). "By channeling members through the internal appellate processes, Congress hoped to accustom members to utilizing the remedies made available within their own organization; at the same time, however, unions were expected to provide responsible and responsive procedures for investigating and redressing members' election grievances." Wirtz v. Laborers' Union, 389 U.S. 477, 484, 88 S.Ct. 639, 642, 19 L.Ed.2d 716 (1968).

Mr. Rose, the complainant, pursued his Union remedy by sending a fifteen page handwritten letter of protest to the International Union's General Executive Board. ⁶ In part, Mr. Rose protested the action of the Election Judges in disqualifying him on the grounds that he was not competent to perform the duties of the office. He specified that the Judges had disqualified him under Article V, Section 3 of the Local's Constitution, and protested that he was fully competent to perform the duties of the office of Secretary-Treasurer.

Any interpretation of the exhaustion requirement of 29 U.S.C. § 482 must deal with the fact that rank and file union members may fail to define their complaints clearly when they draft their internal union protests. Hodgson v. Steelworkers, 403 U.S. at 340, 91 S.Ct. at 1846 and Laborers' Union, 389 U.S. at 482, 485, 88 S.Ct. at 641, 643. The technical artlessness of a union member's complaint should not be allowed to frustrate the important interests Congress sought to protect by enacting § 481 and the § 482 enforcement provisions. Those provisions serve the interests of the union rank and file themselves by attempting to promote democratic union elections through primary reliance on internal union procedures. Union members benefit because they are each guaranteed the opportunity to participate equally in union elections. However, §§ 481 and 482 were not enacted solely for the protection of union members. A second interest Congress sought to protect was that of the public generally. Bottle Blowers Assn., 389 U.S. at 469-70, 88 S.Ct. at 647. Congress found "a number of instances of breach of trust, corruption, disregard of the rights of individual employees, and other failures to observe high standards of responsibility and ethical conduct" that required legislation to "afford necessary protection of the rights and interests of employees and the public generally." 29 U.S.C. § 401(b).

To protect the union rank and file and the public in general, "Congress deliberately settled exclusive enforcement jurisdiction on the Secretary and granted him broad investigative powers to discharge his responsibilities." It is unlikely that Congress intended this duty to be limited "by the artfulness of a layman's complaint." Laborers' Union, 389 U.S. at 482, 88 S.Ct. at 641 (footnote omitted). There is "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." Hodgson v. Steelworkers, 403 U.S. at 341, 91 S.Ct. at 1846 (footnote omitted).

The threshold issue is whether Mr. Rose's internal Union protest was sufficient to satisfy the exhaustion requirements of 29 U.S.C. § 482(a) and to allow the Secretary to challenge the facial validity of the Union's competency requirement. The district court found that Mr. Rose's letter of protest did challenge the validity of Article V, Section 3 of the Local's Constitution. It did not, however, say outright that this provision was invalid. Mr. Rose's protest disputed his disqualification under Article V, Section 3 on the stated grounds that he was fully competent to perform the duties of Secretary- Treasurer. Generally, a challenge to the application of a rule is distinguishable from a challenge to its validity.

Hodgson v. Steelworkers, supra, does not mandate the conclusion that Mr. Rose's failure to state his challenge in terms of the validity of the competency provision precludes the Secretary from making such a challenge. In Hodgson v. Steelworkers, the Secretary's challenge to the Union's meeting attendance rule was dismissed because the Union member's "election protests to the local and international unions concerned matters wholly unrelated to the rule." 403 U.S. at 341, 91 S.Ct. at 1846. In contrast, Mr. Rose's protest dealt specifically with the rule challenged by the Secretary; exhaustion is problematic only because Mr. Rose challenged the rule's application while the Secretary challenged its validity. ⁷

Similarly, Laborers' Union, supra, does not quite reach the question presented in this case. In Laborers' Union, the union member's internal protest alleged that ineligible voters had been allowed to...