Hodgson v. INTERNATIONAL PRINTING PRESS. & ASSIST. UNION

• Decision Date: 09 March 1971
• Docket Number: No. 20508.,20508.
• Citation: 440 F.2d 1113
• Parties: James D. HODGSON, Secretary of Labor, Plaintiff-Appellant, v. INTERNATIONAL PRINTING PRESSMEN AND ASSISTANTS' UNION OF NORTH AMERICA, AFL-CIO, Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

440 F.2d 1113 (1971)

James D. HODGSON, Secretary of Labor, Plaintiff-Appellant, v. INTERNATIONAL PRINTING PRESSMEN AND ASSISTANTS' UNION OF NORTH AMERICA, AFL-CIO, Defendant-Appellee.

No. 20508.

United States Court of Appeals, Sixth Circuit.

March 9, 1971.

Donald L. Horowitz, Atty., Dept. of Justice, Washington, D. C., for plaintiff-appellant; William D. Ruckelshaus, Asst. Atty. Gen., Robert V. Zener, Atty., Dept. of Justice, Washington, D. C., John L. Bowers, Jr., U. S. Atty., Knoxville, Tenn., on brief.

John S. McLellan, Kingsport, Tenn., for defendant-appellee.

Before TOM C. CLARK, Associate Justice,^* and EDWARDS and CELEBREZZE, Circuit Judges.

EDWARDS, Circuit Judge.

In 1959 the United States Congress adopted legislative standards of fairness in relation to elections in labor organizations and provided for enforcement of those standards by the United States District Courts through complaints initiated by the Secretary of Labor. See Labor-Management Reporting and Disclosure Act of 1959, as amended, 29 U.S.C. § 481 et seq. (Supp. V, 1969).

This is a case of first impression at the appellate court level concerning the appropriate interpretation of Section 402(b) of the Act, 29 U.S.C. § 482(b) (1964):

"The Secretary 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, within sixty days after the filing of such complaint, bring a civil action against the labor organization as an entity in the district court of the United States * * *."

The sole question in this appeal is whether the 60-day limit in the statute is absolute or may be waived by agreement between the Secretary of Labor and the union.

In this case complaints from three local unions of the Pressmen's union¹ were filed with the Secretary of Labor pertaining to a general election conducted by the International Union. The Secretary undertook investigation of the conduct of the election and initiated discussions for settlement of the complaints with the International Union officers. These proceedings occupied a considerable period of time and twice the general counsel for the union wrote the Secretary agreeing to extend the period of time for the Secretary's enforcement proceedings beyond the 60-day statutory limitation.

These conferences ultimately failed to resolve the complaints and approximately 120 days after the original complaint the Secretary brought suit to have the election set aside.

In keeping with its previous waivers, appellee union did not plead the limitation as a defense. But the District Judge before whom the action was brought entered an order dismissing the complaint sua sponte. He held that he was without jurisdiction to entertain the cause of action because of the limitation. He relied in part upon The Harrisburg, 119 U.S. 199, 7 S.Ct. 140, 30 L.Ed. 358 (1886), wherein the Supreme Court said:

"The liability and the remedy are created by the same statutes, and the limitations of the remedy are therefore to be treated as limitations of the right." The Harrisburg, supra at 214, 7 S.Ct. at 147.

The District Judge also relied upon legislative history which indicated congressional concern for prompt action by the Secretary of Labor. In this same regard appellee union points out that the statutory language is mandatory and that the initial draft of the legislation originally contained a 30-day limitation, followed by the language "or as soon thereafter as possible," and that in the final version, the 60-day limitation was substituted without any similar additional language.

Appellant Hodgson, on the other hand, argues that the District Court decision, if affirmed by this court, will upset a long-standing interpretation of the Act under which waivers have been routinely accepted and given effect, that a statute of limitations is an affirmative defense which cannot be the subject of sua sponte action by the court when it is not pled by the defendant, and that in any event, the 60-day limitation in the statute should not be regarded as jurisdictional, since the logic of The Harrisburg case has been largely eroded or overruled by subsequent cases, such as Burnett v. New York Central R. R. Co., 380 U.S. 424, 85 S.Ct. 1050, 13 L.Ed.2d 941 (1965); Glus v. Brooklyn Eastern Dist. Terminal, 359 U.S. 231, 79 S.Ct. 760, 3 L.Ed.2d 770 (1959).

Appellant also points out that a number of courts have in effect refused to interpret the 60-day limitation as jurisdictional when the facts indicated that a defendant union had prevented the Secretary from acquiring the needed information to formulate a complaint. Wirtz v. Great Lakes Dist. Local No. 47, International Organization of Masters, Mates and Pilots, 240 F.Supp. 859 (N. D.Ohio 1965); Wirtz v. Local Union No. 705, Hotel and Restaurant Employees Union, 63 L.R.R.M. 2315 (E.D.Mich. 1966), vacated on other grounds, (unreported opinion), order to vacate rev'd, 389 F.2d 717 (6th Cir.), cert. denied 393 U.S. 832, 89 S.Ct. 102, 21 L.Ed.2d 102 (1968); Wirtz v. Independent Workers Union, 65 L.R.R.M. 2104 (M.D.Fla. 1967); Wirtz v. Local Union No. 1622, United Brotherhood of Carpenters, 285 F.Supp. 455 (N.D.Cal.1968).

We have stated the arguments of appellee and appellant in detail because we believe them to be in close balance and difficult to weigh. Our final analysis of the problem is that appellee union's voluntary waivers which were relied upon by appellant may be pled by appellant Secretary of Labor as an equitable defense to estop the otherwise mandatory bar of the statute. The reasoning by which we reach this result takes a little longer to state.

We start with the sentence above, which we have quoted from The Harrisburg:

"The liability and the remedy are created by the same statutes and the limitations of the remedy are therefore to be treated as limitations of the right." The Harrisburg, 119 U.S. 199, 214, 7 S.Ct. 140, 147 (1886).

Of course, if this represented the final treatment of this issue in a situation where, as here, the statute did create the action and also stated a time limitation, we would have nothing more to do than affirm the carefully reasoned opinions of the District Judge who dismissed this complaint.

In two important cases, however, the Supreme Court has stated a different standard for ultimate determination as to whether or not the time limitation would be given automatic and inflexible effect. Burnett v. New York Central R. R. Co., 380 U.S. 424, 85 S.Ct. 1050, 13 L.Ed.2d 941 (1965); Glus v. Brooklyn Eastern Dist. Terminal, 359 U.S. 231, 79 S.Ct. 760, 3 L.Ed.2d 770 (1959).

In one of these cases, in discussing The Harrisburg,² the Supreme Court noted that The Harrisburg court had not ruled out equitable defenses, but on the contrary, had simply held that none were presented therein:

"No question arises in this case as to the power of a court of admiralty to allow an equitable excuse for delay in suing, because no excuse of any kind has been shown." The Harrisburg, 119 U.S. 199, 214, 7 S.Ct. 140, 147 (1886).

And in both Burnett and Glus the Court held that the statute therein concerned could be tolled by an appropriate equitable defense when that defense accorded with the legislative purpose involved.

In Glus the Court said:

"To decide the case we need look no further than the maxim that no man may take advantage of his own wrong. Deeply rooted in our jurisprudence this principle has been applied in many diverse classes of cases by both law and equity courts and has frequently been employed to bar inequitable reliance on statutes of limitations. In Schroeder v. Young, 161 U. S. 334, 16 S.Ct. 512, 40 L.Ed. 721, this Court allowed a debtor to redeem property sold to satisfy a judgment, after the statutory time for redemption had expired although the statute granting the right to redeem also limited that right as to time. The Court held that the purchasers could not rely on the limitation because one of them had told the debtor `that he would not be pushed, that the statutory time to redeem would not be insisted upon, and the debtor believed and relied upon such assurance.\' The Court pointed out that in `such circumstances the courts have held with great unanimity that the purchaser is estopped to insist upon the statutory period, notwithstanding the assurances were not in writing and were made without consideration, upon the ground that the debtor was lulled into a false security.\' 161 U.S., at 344, 16 S.Ct. at page 516." Glus v. Brooklyn Eastern Dist. Terminal, 359 U.S. 231, 232-233, 79 S.Ct. 760, 762, 3 L.Ed.2d 770 (1959). (Footnotes omitted.)

In Burnett the Court said:

"The basic question to be answered in determining whether, under a given set of facts, a statute of limitations is to be tolled, is one \'of legislative intent whether the right shall be enforceable * * * after the prescribed time.\' Midstate Horticultural Co. v. Pennsylvania R. Co., 320 U.S. 356, 360, 64 S.Ct. 128, 130, 88 L.Ed. 96. Classification of such a provision as `substantive\' rather than `procedural\' does not determine whether or under what circumstances the limitation period may be extended. As this Court has expressly held, the FELA limitation period is not totally inflexible, but, under appropriate circumstances, it may be extended beyond three years. Glus v. Brooklyn Eastern Dist. Terminal, 359 U.S. 231, 79 S.Ct. 760, 3 L.Ed.2d 770. See Osbourne v. United States, 164 F.2d 767 (C.A.2d Cir.); Scarborough v. Atlantic Coast Line R. Co., 178 F.2d 253 (C.A.4th Cir.); Frabutt v. New York C. & St. L. R. Co., 84 F.Supp. 460 (D. C.W.D.Pa.). These authorities indicate that the basic inquiry is whether congressional purpose is effectuated by tolling the statute of limitations in given circumstances.

"In order to determine congressional intent, we must examine the purposes and policies underlying the limitation provision, the Act itself, and the remedial scheme developed for the

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