Hodgson v. Lodge 851, Int. Ass'n of Mach. & Aerospace Wkrs.

• Citation: 454 F.2d 545
• Decision Date: 13 January 1972
• Docket Number: No. 71-1107.,71-1107.
• Parties: James D. HODGSON, Secretary of Labor, Petitioner-Appellant, v. LODGE 851, INTERNATIONAL ASSOCIATION OF MACHINISTS & AEROSPACE WORKERS, AFL-CIO, Defendant-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

454 F.2d 545 (1971)

James D. HODGSON, Secretary of Labor, Petitioner-Appellant, v. LODGE 851, INTERNATIONAL ASSOCIATION OF MACHINISTS & AEROSPACE WORKERS, AFL-CIO, Defendant-Appellee.

No. 71-1107.

United States Court of Appeals, Seventh Circuit.

December 9, 1971.

Rehearing Denied January 13, 1972.

L. Patrick Gray, III, Asst. Atty. Gen., Civil Div., Ronald R. Glancz, Atty., Dept. of Justice, Washington, D. C., James R. Thompson, U. S. Atty., Chicago, Ill., for petitioner-appellant.

Michael D. Block, Joliet, Ill., for defendant-appellee.

Before KILEY, PELL and STEVENS, Circuit Judges.

PELL, Circuit Judge.

This case arises out of a local union's election of officers conducted on December 21, 1969. Six days later, a member in good standing of the local, Local 851, protested the conduct of the election and made the appropriate application for internal union relief. After waiting three months and receiving no satisfactory answer to his complaints, he filed a complaint with the Secretary of Labor under § 402(a) of the Labor-Management Reporting and Disclosure Act of 1959 (LMRDA), 29 U.S.C. § 482(a). The Act then provided that:

"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 . . . to set aside the invalid election, if any, and to direct the conduct of an election or hearing and vote upon the removal of officers under the supervision of the Secretary. . . ." 29 U.S.C. § 482(b)

The Secretary proceeded to investigate the complaint. Approximately one month before the expiration of the 60 day period referred to above, the Secretary obtained a letter signed by the President of Lodge 851 and the Vice President of the International Union stating:

"It is hereby agreed that the time within which the Secretary of Labor may bring suit for any and all causes of action arising from or relating to LMWP\'s Office of Labor-Management and Welfare-Pension Reports investigative findings with regard to the challenged election be extended from May 2, 1970 to July 1, 1970.

"It is further agreed that Local Lodge 851 and the International Association of Machinists and Aerospace Workers, said local union\'s parent body, both individually and together, hereby waive any and all defenses relating to the timeliness of any act or action required to be taken by the Secretary of Labor under Section 402 of the LMRDA which it or they might otherwise have to the causes of action referred to above."

The Department of Labor's reply letter of May 6, 1970, contained the following statement:

"In consideration of this waiver, legal proceedings will not be initiated by the Department of Labor at this time, but the right of the Secretary to initiate such proceedings is reserved until July 1, 1970."

The policy of obtaining such waivers of the 60 day time period was, admittedly, a common practice in these cases and had been standard policy of the Department of Labor since the passage of the Act in 1959.

On June 30, 1970, the Secretary, having concluded his investigation and having been unable to negotiate an agreement for a new election with the union, filed a complaint against Lodge 851 alleging three specific violations of the Act. The union moved to dismiss the complaint on the ground that it had not been filed within the statutory 60 day period. The court below, apparently relying heavily on the district court's opinion in Shultz v. International Printing Pressmen and Assistants' Union of North America, Civil No. 2288 (E.D. Tenn., filed May 6, 1970), dismissed the case, Shultz v. Lodge 851, No. 70 C 1579 (N.D.Ill., filed October 29, 1970). It is from that dismissal that this appeal was taken.

First, we must note that the Pressmen case, supra, upon which the court below principally relied, has been reversed by the Sixth Circuit, Hodgson v. International Printing Pressmen, 440 F.2d 1113 (6th Cir. 1971), cert. denied, 404 U.S. 828, 92 S.Ct. 63, 30 L.Ed.2d 56. In a well reasoned opinion by Judge Edwards (in which Associate Justice Clark and Circuit Judge Celebrezze concurred), the court held that the "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." 440 F.2d at 1115. Although we are satisfied with the result, as well as the reasoning of the Sixth Circuit, it is necessary to examine those arguments of defendant union here which it is claimed were not considered by the Pressmen court.

Defendant first states that since § 402 of the Act was drafted in the form of an election law, it should be treated in the same manner as other election laws, which, as generally interpreted, require the timely filing of a complaint as a prerequisite to relief.¹

We cannot agree with this contention since the election process remedies of the LMRDA have certain unique characteristics which distinguish it from state political election laws.

In Calhoon v. Harvey, 379 U.S. 134, 85 S.Ct. 292, 13 L.Ed.2d 190 (1964), the Supreme Court stated:

"Reliance on the discretion of the Secretary is in harmony with the general congressional policy to allow unions great latitude in resolving their own internal controversies, and, where that fails, to utilize the agencies of Government most familiar with union problems to aid in bringing about a settlement through discussion before resort to the courts." 379 U.S. at 140, 85 S.Ct. at 296. (Emphasis added.)

While the above statement was not directly involved in the decision of the point before the court, it does show clearly that an integral part of the remedial structure of Title IV was to be negotiation between the Secretary and the union to the end of reaching, if possible, a voluntary and non-litigated settlement. The Court's language as above set out was quoted with approval in Wirtz v. Bottle Blowers Ass'n, 389 U.S. 463, 472, 88 S.Ct. 643, 19 L.Ed.2d 705 (1968).

In contrast, state election laws by their nature have no place for negotiations between the candidates and the election board to determine whether or not a new election will be held. The courts are the sole arbiters of that decision. Reference to such political processes is, therefore, not relevant to the present case.

Local 851 next advances the argument that the word "shall" in § 402(b) of the Act means that the filing of a complaint within 60 days is a condition precedent to the existence of a cause of action, i.e., that it is a jurisdictional element. If this is so, then the rule that parties cannot confer jurisdiction on a court by agreement would apply and the dismissal of the complaint would have been proper.

At one time, a statute which created a new cause of action and which included a time limitation was interpreted as making the time limitation a jurisdictional (or substantive) element of the cause, such that it could not be waived even though the parties both desired to do so. The theory was that the timely filing was a condition precedent to the right and not merely to the remedy. This theory was criticized in Developments in the Law—Statutes of Limitation, 63 Harv.L.Rev. 1177, 1186-87 (1950) and Note, Clayton Act Statute of Limitations and Tolling by Fraudulent Concealment, 72 Yale L.J. 600, 605 (1963). However, prior to these articles the Supreme Court in at least one case had declared that legislative intent was controlling over such court-made rules of statutory interpretation.² Finally, in Burnett v. New York Central R. Co., 380 U.S. 424, 85 S. Ct. 1050, 13 L.Ed.2d 941 (1965), the Court explicitly rejected the older view.³

We also reject the rule proposed by defendant in this case that a time limitation included in a statutory scheme is a priori jurisdictional. Rather it is necessary to examine the intent of Congress in passing this Act.

A subsidiary argument presented by Local 851 is that since the Supreme Court has interpreted the word "shall" as a mandatory statement to the courts in § 402(c) of the Act (Wirtz v. Local 153, Glass Bottle Blowers Ass'n, 389 U. S. 463, 88 S.Ct. 643, 19 L.Ed.2d 705 (1968), wherein it was held that an election which occurs subsequent to the contested election does not make the Secretary's suit moot, but rather that a court must order a new election if it finds that the old one was in fact invalid), the same mandatory meaning of the word is necessitated in § 402(b).

While we recognize that "shall" in many contexts is equated with "must," we do not conceive that this result is automatic in all situations, certainly not in the present one. Nor do we find any sequiturish interpretations imposed upon one subsection of the Act dealing with the discretionary duties of the Secretary simply because the courts have a mandatory duty under a different subsection of the Act.

Local 851 contends, however, in any event the intent of Congress was that the 60 day requirement should not be subject to waiver. Normally a statute of limitations is "designed to assure fairness to defendants," Burnett v. New York Central R. Co., supra, 380 U.S. at 428, 85 S.Ct. at 1054, by eliminating surprise and stale claims. The union claims neither in this case but relies on the intent of Congress as expressly related to the purposes of the LMRDA.

In support of this phase of its argument the union cites the "well established principle that a statutory right conferred on a private party, but affecting the public interest, may not be waived." While this rule may be true in some cases, it has no application here since the Secretary of Labor is not a private party in the usual sense of the term. Rather the Secretary is told to determine probable cause, much as a public prosecutor does. Although the Secretary's role is not solely that of a defender of public interest since he is also, in...