Hodgson v. UNION de EMP. de los SUPERMERCADOS PUEBLO

• Decision Date: 06 December 1974
• Docket Number: Civ. No. 58-73.
• Parties: James D. HODGSON, Secretary of Labor, United States Department of Labor, Plaintiff, v. UNION de EMPLEADOS de los SUPERMERCADOS PUEBLO, Defendant.
• Court: U.S. District Court — District of Puerto Rico

388 F. Supp. 1026

James D. HODGSON, Secretary of Labor, United States Department of Labor, Plaintiff, v. UNION de EMPLEADOS de los SUPERMERCADOS PUEBLO, Defendant.

Civ. No. 58-73.

United States District Court, D. Puerto Rico.

December 6, 1974.

U. S. Atty., Old San Juan, P. R., for plaintiff.

Federico A. Cordero, Santurce, P.R., for defendant.

OPINION AND ORDER

TOLEDO, Chief Judge.

This action was brought by the Secretary of Labor against defendant, Union de Empleados de los Supermercados Pueblo (hereinafter the Union), for violation of Title IV of Labor Management Reporting Disclosure Act (hereinafter LMRDA) of 1959, Title 29, United States Code, Section 401 et seq.

Jurisdiction is invoked pursuant to Section 402(b) of LMRDA, Title 29, United States Code, Section 482(b). The alleged facts are as follows: The defendant, the Union, was the exclusive bargaining representative of Pueblo Supermarket (a business affecting interstate commerce) as a result of an election for certification held on June 22, 1969. The Constitution of the Union in its Article XII as well as the Act provide for the election of union officials every three years. Filomeno Vargas, a member in good standing of the Union, protested the failure of the Union to carry out an election of officers of defendant's Executive Board; that having failed to receive a final decision within three calendar months, Mr. Vargas, on November 21, 1972, filed a complaint with the Secretary of Labor (hereinafter the Secretary) in accordance with Section 402(a) of the Act, Title 29, United States Code, Section 482; that after investigation of the complaint, plaintiff found probable cause to believe there was a violation of Section 401(b) of the Act, Title 29, United States Code, Section 481 (b) and that it had not been remedied at the time of the institution of this suit.

Meanwhile, the Executive Board of the Union called for an assembly of the Union's members to nominate candidates to the different Board of Directors' positions. On July 5, 1974, the leadership of the Union tried to persuade Mr. Capestany, Director of the Puerto Rico area for Labor Management Service Administration to supervise the programmed elections but he declined the offer. On July 7, 1974, the assembly nominated the Union candidates and designated July 23, 1974 as the election date.

On July 19, 1974, the Executive Board made arrangements with a private firm to supervise the election to be held on July 23, 1974.

The elections were held in the appointed days, the results are contained in defendant's briefs.

The issue to be decided by this Court is whether the elections held by the Union under the supervision of a private firm cured the violation of the Act requiring elections to be held at least every three years and thus bars the Secretary from pursuing this action before this Court.

Plaintiff has filed a motion for summary judgment.

It is to be noticed that there is no discrepancy between the parties as to the facts which originated this action. Both parties have agreed that the summary judgment may be adjudicated by this Court without the necessity of a trial. Summary judgment is proper and should be used to eliminate formal trials where only questions of law are involved. Molinos de Puerto Rico v. Sheridan Towing Company, 62 F.R.D. 172, 174 (D.C.P.R.1973).

Summary judgment is a procedural device which is used to avoid a useless trial and for promptly disposing of actions where there is no genuine material issue of fact involved. Mintz v. Mathers Fund Inc. (7 Cir. 1972), 463 F.2d 495; Molinos de Puerto Rico Inc. v. Sheridan Towing Company, supra.

The leading case in this matter is Wirtz v. Local Union No. 125, Laborers' International Union of North America, 389 U.S. 477, 88 S.Ct. 639, 19 L.Ed.2d 716 (1967).

While it is true that Congress intended to establish "minimal government" interference in the internal union affairs, however, Congress has felt the need to legislate setting up minimal requirements in this field. One such requirement, written into Section 401, Title 29, United States Code, Section 481, is that local unions must hold elections every three years.¹

Section 401 of the Act, Title 29, United States Code, Section 481, imposes certain requirements with respect to the election of union officials, designed to insure democratic control of union affairs. Section 402, Title 29, United States Code, Section 482, provides for the enforcement of these requirements; subsection (a) provides that a member of a union who has either exhausted internal union remedies with respect to an alleged Section 401 violation or has attempted to do so but has not obtained a union decision within three months may file a complaint with the Secretary of Labor within one month thereafter; subsection (b) provides that the Secretary shall investigate the complaint and if he finds probable cause to believe a Section 401 violation has occurred, and has not been remedied, shall file an action against the union within 60 days; and subsection (c) provides that if the court finds a violation has occurred that may have affected the outcome of the challenged election, the court shall declare the election void and order a new election conducted under supervision of the Secretary.

Once a protesting union member has exhausted his union remedies and filed a timely complaint with the Secretary, it is too late to avoid government intervention. It is also too late to avoid a needless expenditure of the Secretary's limited resources. The Secretary is already involved, how deeply depending on the speed with which the Secretary has moved in the particular instance. Fleming v. McEnany (2 Cir. 1974), 491 F.2d 1353.

Congress expressed a preference for an election supervised by the Secretary as the remedy for Section 401 violations, believing that only a supervised election could offer assurance that the officers who achieved office as beneficiaries of violations of the Act would not by some means perpetuate their unlawful control. Wirtz v. Local 153, Glass Bottle Blowers, 389 U.S. 463, 88 S.Ct. 643, 19 L.Ed.2d 705 (1968); Calhoon v. Harvey, 379 U. S. 134, 85 S.Ct. 292, 13 L.Ed.2d 190 (1964).

The right of the government to investigate the breakdown of the democratic processes is clear. It is not within the power of the labor union to deprive...