Donovan v. Missouri Pacific System Federation Joint Protective Bd. of Broth. of Maintenance of Way Employees, AFL-CIO

• Decision Date: 11 July 1984
• Docket Number: No. 83-2329,D,AFL-CI,83-2329
• Parties: 116 L.R.R.M. (BNA) 3470, 101 Lab.Cas. P 11,124 Raymond J. DONOVAN, Secretary of Labor, United States Department of Labor, Plaintiff-Appellant, v. MISSOURI PACIFIC SYSTEM FEDERATION JOINT PROTECTIVE BOARD OF the BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYEES,efendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 445

737 F.2d 445

116 L.R.R.M. (BNA) 3470, 101 Lab.Cas. P 11,124

Raymond J. DONOVAN, Secretary of Labor, United States Department of Labor, Plaintiff-Appellant, v. MISSOURI PACIFIC SYSTEM FEDERATION JOINT PROTECTIVE BOARD OF the BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYEES AFL-CIO, Defendant-Appellee.

No. 83-2329.

United States Court of Appeals Fifth Circuit.

July 11, 1984.

Bob Wortham, U.S. Atty., Tyler, Tex., William Cornelius, Asst. U.S. Atty., Tyler, Tex., James E. White, Reg. Sol., Dept. of Labor, Dallas, Tex., Stanford Dubin, Atty., U.S. Dept. of Labor, Washington, D.C., for plaintiff-appellant.

Mullinax, Wells, Baab & Cloutman, Louis P. Malone, III, Sanford R. Denison, Dallas, Tex., for defendant-appellee.

Appeal from the United States District Court for the Eastern District of Texas.

Before TIMBERS, ^* POLITZ and RANDALL, Circuit Judges.

TIMBERS, Circuit Judge:

The Secretary of Labor commenced this action in the Eastern District of Texas alleging violation of the Labor-Management Reporting and Disclosure Act of 1959 (LMRDA), 29 U.S.C. Sec. 481 et seq. (1982), and seeking to void the last election of the officers of appellee Brotherhood of Maintenance of Way Employees (Union) which was held July 28, 1980. The Secretary contends that the election was influenced by the failure of some of the subordinate lodges of the Union to comply with a requirement that notice of delegate elections be mailed to each member not less than 15 days prior to the election. The action was dismissed following trial. The court, Thomas M. Reavley, Circuit Judge, ¹ held that the protesting union member had failed to exhaust available union remedies prior to filing a complaint with the Secretary, as required by 29 U.S.C. Sec. 482(a)(1) (1982). Since we hold that the union member's protest letter adequately exhausted his internal union remedies, we reverse and remand for further proceedings according to law.

I.

The Union is a three-tiered labor organization consisting of more than 1,000 subordinate or local lodges under the jurisdiction of approximately 40 System Federations, which in turn are affiliated with the Grand Lodge. The Missouri Pacific System Federation Joint Protective Board (Federation) is one of these intermediate System Federations. It has jurisdiction over 56 local lodges. The Federation mailed a convention call, dated January 28, 1980, to its subordinate lodges, notifying them that the Federation convention would be held in Wichita, Kansas, on July 28, 1980 to elect Federation officers and to conduct other business. Each local lodge was entitled to send one convention delegate, provided that no delegate could represent more than 300 members. The election of convention delegates was to be in accordance with the Constitution and Bylaws of the Grand Lodge. Article XX, Section 10, provides, in part, that all members of the local lodges who are in good standing must be given at least 15 days advance notice of the date, time and place at which nominations for convention delegate will be made, as well as the date, time and place at which the delegate elections will be held.

The convention was held as scheduled. L.W. Borden challenged the incumbent, T.G. Hawkes, Jr., for the position of General Chairman. Borden lost by a narrow margin. ² At the convention, he raised a point of order on the ground that some of the subordinate lodges had not complied with the notice of delegate election requirement.

A month after the convention, Borden decided to protest the election. He initially contacted the Department of Labor by a letter dated September 10, 1980. He was told that he must exhaust his internal union remedies prior to filing a complaint with the Secretary.

On September 16, 1980, Borden wrote a letter ³ to Olee Berge, President of the Grand Lodge. In this letter he complained about several aspects of the election, including the allegation that members were "not given the opportunity to attend meetings or take part in the election of a delegate." Berge responded with a letter dated September 22, 1980, ⁴ which stated among other things that, unless and until Borden furnished him with "evidence of a probative nature showing that there is a basis for your accusations, your request for an investigation is declined."

Borden interpreted this response as a denial of his request. He filed a complaint with the Secretary of Labor dated October 2, 1980. His complaint consisted of a letter stating that proof of the allegations was in the possession of the Grand Lodge and asking the Secretary to investigate. He enclosed a copy of his letter to Berge and the latter's response.

The Secretary investigated and found merit to the protest that some members were not given the opportunity to attend meetings or to take part in the election of a delegate because they had not been properly notified. After receiving the Department of Labor's Summary of Violations letter, the Union also conducted an investigation. It found that in some cases proper notice had not been given, but concluded that this failure did not affect the outcome of the election.

The Secretary commenced this action in the district court on January 5, 1981 seeking to have the July 28, 1980 election declared void and to have an immediate new election, under the supervision of the Department of Labor, for 7 of the 9 offices of the Federation Board. The complaint alleged certain violations of the LMRDA. It alleged that 29 U.S.C. Sec. 481(e) had been violated in that 8 of the 56 subordinate lodges had not given the 15-day notice of delegate election required by that section of the statute, and that 29 U.S.C. Sec. 481(d) had been violated in that one of the lodges was represented by a delegate who had not been elected.

After a bench trial on February 11, 1983, the court filed a concise, straightforward decision on March 17, 1983. The court dismissed the action on the basis of a finding that the protesting union member had failed to exhaust union remedies available to him as required by 29 U.S.C. Sec. 482(a)(1). The court held that "Borden was required to make known his objection with such specific basis as was known to him", and that he had failed to do so.

II.

The sole question presented on this appeal is whether Borden adequately exhausted his union remedies before filing a complaint with the Department of Labor. Section 402(a) of the LMRDA, 29 U.S.C. Sec. 482(a)(1), requires that a member of a labor organization "exhaust [ ] the remedies available under the constitution and bylaws of such organization and of any parent body" prior to filing a complaint with the Secretary of Labor alleging election violations. ⁵ The justification for this requirement is "to postpone governmental intervention until the union is afforded the opportunity to redress the violation." Wirtz v. Local 153, supra note 2, 389 U.S. at 472. See S.Rep. No. 187, 86th Cong., 1st Sess. 2, reprinted in 1959 U.S.Code Cong. & Ad.News 2318, 2323.

Hodgson v. Local Union 6799, United Steelworkers (Local 6799), 403 U.S. 333 (1971), held that "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 341. The Union interprets this to mean that all information bearing on the alleged violation which is at the disposal of the union member must be specifically divulged in his initial protest. We disagree.

In Local 6799, the union member's internal protest dealt with several matters, including the use of union facilities to prepare campaign materials for the incumbent president. An objection concerning a meeting-attendance requirement imposed as a condition of candidacy for union office--a claim wholly unrelated to those presented in the union protest--was raised for the first time in the union member's complaint filed with the Secretary of Labor. The facts of the instant case are significantly different. Here, Borden presented all of his claims to Berge in his letter of September 16, 1980. The union does not contend that Borden is now alleging any new grounds for relief, only that his protest was insufficiently specific in detailing the alleged violations. Thus Local 6799 is distinguishable on this ground. The sentence in the opinion requiring the union member to present facts must be read in light of the holding that "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." 403 U.S. at 341 (emphasis added) (footnote omitted).

Subsequent cases have interpreted Local 6799 as requiring only that the union be able to discern that the member was complaining of the violation ultimately litigated. See, e.g., Donovan v. Local Union No. 120, Laborers' International Union, 683 F.2d 1095 (7th Cir.1982) (union protest concerning application of a rule exhausted later challenge by the Secretary to the validity of the rule); Hodgson v. District 6, United Mine Workers, 474 F.2d 940, 946 (6th Cir.1973) ("the fact that Howard's protests can be read fairly as attacking the validity of the rule in question, is sufficient to meet the exhaustion requirement"); Hodgson v. Local 1299, United Steelworkers, 453 F.2d 565 (6th Cir.1971) (test is whether union had fair notice that members were complaining about the validity of the meeting-attendance rule when protest challenged the application of the rule); Balanoff v. Donovan, 569 F.Supp. 966 (N.D.Ill.1983) (attack which focused on particular issues of a newspaper did not provide the union with "fair notice" that member also was dissatisfied with his own lack of coverage in subsequent issues of the paper). We are aware of no case where, even though the nature of the alleged violation was known to the union, nevertheless the union member's complaint was dismissed because the specific instances...