Fennelly v. LOCAL 971, Civ. A. No. 74-5034-F.
| Decision Date | 23 September 1975 |
| Docket Number | Civ. A. No. 74-5034-F. |
| Citation | 400 F. Supp. 375 |
| Parties | George FENNELLY v. LOCAL 971, a/w United Rubber, Cork, Linoleum and Plastic Workers of America, AFL-CIO. |
| Court | U.S. District Court — District of Massachusetts |
Alan J. McDonald, Grady & Kaplan, Boston, Mass., for plaintiff.
Harold B. Roitman, Segal, Roitman & Coleman, Boston, Mass., for defendant.
This motion to dismiss was heard by the Court on August 18, 1975. After careful consideration of the pleadings, memoranda, and pertinent authorities, the Court orders that the motion be allowed and that the case be dismissed.
The facts underlying plaintiff's cause of action can be briefly stated. Plaintiff Fennelly is a member in good standing of defendant union, Local 971, affiliated with United Rubber, Cork, Linoleum and Plastic Workers of America ("Local 971"). The union represents the production employees of the General Tire Company, Reading, Massachusetts.
On August 25, 1974, Local 971 notified its members that nominations for officers would be held on September 15, and that an election would be held on October 9. Only two candidates were nominated: plaintiff Fennelly and the incumbent, Amirault. At the election Fennelly defeated Amirault by a vote of 83 to 72. Subsequently, the October 9 election was invalidated.1
New nominations were scheduled for November 3, 1974, and a new election set for November 6. Plaintiff protested this second nomination and election procedure.
Fennelly applied for a temporary restraining order on November 5, 1974 to enjoin the election; the application was denied by Chief Judge Caffrey acting as Emergency Judge.
Plaintiff was again nominated for president as was Amirault. The latter defeated plaintiff in the election of November 6 by a vote of 111 to 85. On November 14, a second motion for temporary restraining order was heard by this Court. At the hearing plaintiff sought to enjoin the installation of officers scheduled for November 17. Plaintiff was unsuccessful in obtaining injunctive relief.
Fennelly's complaint, in essence, seeks to have the Court invalidate the second election and recognize the results of the earlier election in which plaintiff was victorious. Defendant advances three grounds for its motion to dismiss: (1) the Court lacks jurisdiction over the subject matter; (2) plaintiff has failed to state a claim upon which relief can be granted; and (3) plaintiff has failed to join a necessary party.
Plaintiff asserts jurisdiction for this suit under the Labor-Management Reporting and Disclosure Act of 1959, 29 U.S.C. Sec. 401 et seq. Specifically, plaintiff contends that defendant has violated 29 U.S.C. Sec. 411(a)(1) and 29 U.S.C. Sec. 481(e).
For purposes of this discussion I will first address the plaintiff's allegations under Sec. 481. This section of the statute concerns election procedures of unions; subsection (e)2 outlines the specific requirements for nominations, eligibility for voting, and preservation of ballots. Fennelly asserts that the invalidation of the October 9 election infringes his rights under this section. The Court finds it unnecessary to reach his contentions, however, since it is clear from Sections 482 and 483 that subject matter jurisdiction is lacking.
Section 482 sets forth the procedure for enforcing the rights created by Section 481. The aggrieved party may file a complaint with the Secretary of Labor3 who ". . . shall investigate such complaint and, if he finds probable cause to believe that a violation of this subchapter has occurred and has not been remedied, he shall, . . . bring a civil action against the labor organization as an entity in the district court . . .." 29 U.S.C. Sec. 482(b).
When a member of a labor organization wishes to challenge an election which has already been conducted, his sole remedy is the filing of a complaint with the Secretary. 29 U.S.C. Sec. 483. Calhoon v. Harvey, 379 U.S. 134, 140, 85 S.Ct. 292, 13 L.Ed.2d 190 (1964). The rationale for limiting a member to this remedy was succinctly stated in Trbovitch v. United Mine Workers, 404 U.S. 528, 532, 92 S.Ct. 630, 633, 30 L.Ed.2d 686 (1972):
See, also, Dunlop v. Bachowski, 421 U.S. 560, 568-572, 95 S.Ct. 1851, 44 L.Ed. 2d 377 (1975).
Since the remedy for a violation of Section 481 is exclusive, this Court is without jurisdiction to entertain suits by union members for such violations.
Plaintiff further alleges that the same facts which give rise to a violation of Section 481, also amount to a violation of 29 U.S.C. Sec. 411(a)(1).4 This section gives all members of a labor organization "equal rights and privileges" in nominations, voting, participation in meetings, etc. Section 412 gives the district court jurisdiction over suits by members for violations of these rights. Calhoon v. Harvey, supra, appears to foreclose jurisdiction since the allegations are more aptly construed as violations of Section 481.
It would seem, then, that the lack of subject matter jurisdiction obtains regardless of how plaintiff wishes to characterize the facts since he is seeking review of a union election which has already been conducted.
Even if Fennelly were able to avoid dismissal on jurisdictional grounds, his complaint would nonetheless fail under Section 411 since he has not stated a claim upon which relief can be granted. Plaintiff had the same opportunity to participate in the challenged election as did other union members. The Court is unable to see how there has been a colorable violation of equal rights.
Plaintiff's reliance on McDonald v. Oliver, 400 F.Supp. 660 (S.D.Miss. 1974), is misplaced. In that case there was a trusteeship question which added considerable complexity to the matter. Further, McDonald raised a question of ineligibility for office of the candidate whose successful election had been voided. Finally, the McDonald court, in distinguishing Calhoon, indicated that Title I (29 U.S.C. Sec. 411 et seq.) Jurisdiction was conceded by defendants in that case. McDonald v. Oliver, supra, at 665. For that reason the court was not required to focus sharply upon the issue that this Court must decide.
In view of my rulings on the first two grounds of the motion to dismiss, I find it unnecessary to reach de...
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...292, 13 L.Ed.2d 190 (1964); Davis v. Turner, supra, 395 F.2d at 672; Gurton v. Arons, supra, 339 F.2d at 374-375; Fennelly v. Local 971, 400 F.Supp. 375 (D.Mass.1975). As the Supreme Court emphasized in Calhoon v. Harvey, supra, 379 U.S. at 139, 85 S.Ct. at "Plainly, § 101 is no more than a......