Kolmonen v. INTERNATIONAL HOD CARRIERS'BLDG. & COM. LAB. U.

• Decision Date: 30 March 1963
• Docket Number: Civ. A. No. 4391.
• Citation: 215 F. Supp. 703
• Parties: Walter W. KOLMONEN, on his own behalf and in behalf of other members of Road Construction Laborers of Michigan, Local 1191 of the International Hod Carriers' Building and Common Laborers Union of America, AFL-CIO, Plaintiff, v. INTERNATIONAL HOD CARRIERS' BUILDING AND COMMON LABORERS' UNION OF AMERICA, AFL-CIO, its officers, agents and members, and Road Construction Laborers of Michigan, Local 1191 of the International Hod Carriers' Building and Common Laborers Union of America, AFL-CIO, its officers and agents, Defendants.
• Court: U.S. District Court — Western District of Michigan

215 F. Supp. 703

Walter W. KOLMONEN, on his own behalf and in behalf of other members of Road Construction Laborers of Michigan, Local 1191 of the International Hod Carriers' Building and Common Laborers Union of America, AFL-CIO, Plaintiff, v. INTERNATIONAL HOD CARRIERS' BUILDING AND COMMON LABORERS' UNION OF AMERICA, AFL-CIO, its officers, agents and members, and Road Construction Laborers of Michigan, Local 1191 of the International Hod Carriers' Building and Common Laborers Union of America, AFL-CIO, its officers and agents, Defendants.

Civ. A. No. 4391.

United States District Court W. D. Michigan, S. D.

March 30, 1963.

Morse, Kleiner & Burns, Grand Rapids, Mich., A. Robert Kleiner, Grand Rapids, Mich., of counsel, for plaintiff.

Zwerdling, Miller, Klimist & Maurer, Detroit, Mich., A. L. Zwerdling, Detroit, Mich., of counsel, for International Union.

Russell L. Swarthout, Detroit, Mich., for Local 1191.

FOX, District Judge.

Walter W. Kolmonen, plaintiff, for himself and other members of the Road Construction Laborers of Michigan, Local 1191 of the International Hod Carriers' Building and Common Laborers' Union of America, AFL-CIO, commenced this action on September 21, 1962. He named as defendants the International Hod Carriers' Building and Common Laborers' Union of America, AFL-CIO, its officers, agents, and members, the Road Construction Laborers of Michigan, Local 1191 of the International Hod Carriers' Building and Common Laborers Union of America, AFL-CIO, its officers and agents.

Plaintiff seeks in this District Court a post-election challenge to a local union election by claiming he and other similarly situated members were denied their equal right to vote in violation of the Bill of Rights section of the Labor-Management Reporting and Disclosure Act of 1959, 29 U.S.C. § 411(a) (1).¹

Plaintiff alleges that he is a resident of the City of Calumet, Michigan, a member in good standing of both defendant unions.

Plaintiff alleges that in accordance with Article VI of the Uniform Local Constitution covering nomination and election of local union officers, the officers of Local 1191 proceeded to call for nomination and election of officers, as required by the Uniform Local Constitution. The election was held at the headquarters of the local union in Detroit, Michigan, on September 7, 1962, between the hours of 9:00 A.M. and 9:00 P.M. At that election 218 ballots were cast, and of those, 16 were void ballots. The total membership of the union is approximately 2,000 members.

Plaintiff claims violations of election procedures provided by Article VI of the Local Constitution in that the ballots were placed in the ballot box by the judges instead of by the voting members, as required by Section 3(e) (iii) of that Article, and that Section 3(j) of that Section was violated because the judges of the election did not wrap and seal the ballots at the time and place of the election.

Plaintiff alleges further that he was denied his equal right to vote as guaranteed by the Labor-Management Reporting and Disclosure Act of 1959, 29 U.S.C. § 411. Plaintiff claims that this denial results from the fact that plaintiff resides in the Upper Peninsula of Michigan and cannot practicably be in attendance in Detroit, Michigan, for election meetings because of the great distance involved and the expense and loss of work required to attend such meetings.

Plaintiff then prays that this Court issue an order to show cause to the defendants why a temporary restraining order should not issue suspending the results of the election held on September 7, 1962, and prohibiting a change in officers in the local union until such time as a new election has been directed by the General Executive Board of the International Union, or until the further order of this Court.

Plaintiff further asks that upon the hearing of the order to show cause, this Court issue a temporary restraining order, suspending the results of the election held on September 7, 1962, and prohibiting any change in the officers of the local union, until a new election is directed by the General Executive Board, or until the further order of this Court.

Finally, plaintiff prays that upon the hearing of this cause, the court declare the election held on September 7, 1962, to be invalid because the plaintiff and others similarly situated were denied their equal rights to elect officers, contrary to the Federal Statute and the International and Uniform Local Constitution of the defendants; further, that this court order a new election to be held for officers of the local union which will provide for referendum ballots, addition of polling places, or other means that will guarantee all members of the local union an equal right to vote.

An order to show cause was filed by this Court the same date, September 21, 1962. Hearing was set for the 28th of September, 1962, and was then adjourned to October 3, 1962.

On the same day, but subsequent to the filing of this complaint, plaintiff and other members in good standing in the local union, appealed to the General Executive Board of the International Union by letter, in accordance with Article XII, Section 8, of the Uniform Local Constitution, to set aside the election and order a new election because of the denial of their equal right to vote, as mentioned above.

On October 3, 1962, the defendants in this action filed a motion to dismiss the complaint on the grounds: (1) that the Court lacks jurisdiction over the subject matter, and (2), that the complaint fails to state a claim upon which relief can be granted.

At the hearing on October 3, 1962, the Court refused to issue a temporary restraining order.

On October 19, 1962, plaintiff again appeared in District Court and filed an amended complaint, realleging the facts in the original complaint, and alleging further violations of the Local's Constitution.

On the same date, plaintiff also filed a motion to issue the restraining order prayed for in the complaint, on the grounds that the newly elected officers of the local exercised self-help without court authority and seized the offices and assets of the local.

A second hearing was set for October 22, 1962, at which time all the parties in this cause appeared and additional testimony and arguments were presented to the Court.

Plaintiff alleges that jurisdiction in this cause is based upon 29 U.S.C. § 412 of the Labor-Management Reporting and Disclosure Act of 1959, (hereinafter referred to as LMRDA) which provides:

"Civil action for infringement of rights; jurisdiction

"Any person whose rights secured by the provisions of this subchapter have been infringed by any violation of this subchapter may bring a civil action in a district court of the United States for such relief (including injunctions) as may be appropriate. Any such action against a labor organization shall be brought in the district court of the United States for the district where the alleged violation occurred, or where the principal office of such labor organization is located."

Part of the Court's opinion from the bench on October 3, 1962, is as follows:

"* * * I have come to the conclusion, however, that the over-all general policy of self-regulation should be given an opportuity to function in this case."

The Court then stated that it was going to take the case under advisement for a thirty-day period. The opinion continues:

"I am satisfied from what was related to the court that the probability of the newly elected officers taking office on October 5 is presently in considerable doubt. The present officers, if they execute their declared intention, will sit tight unless and until they are moved by a superior force. I suppose that force might be an action at law or an action of the Executive Board of the Union. It occurs to me that those processes may draw in issue the validity of the election."

"I am satisfied that in post-election procedure, the Act of Congress has declared that the 480 Section 29 U.S.C. 483 is the exclusive process by which an election can be declared invalid.

"There is available to this plaintiff and his associates a remedy within the constitution of the union for testing the question of the equal opportunity problem before the Executive Board. There is a method for appeal which is available if the election process is to be challenged, and can be brought to the attention of the Executive Board for action before the election is held.

"* * * I am not foreclosing the opportunity for plaintiff to be heard on the issue of equal opportunity. The Executive Board of the International Union is before the court on a special appearance * * * and I am sure the court's views, expressed in this opinion, will be directed to the attention of the Executive Board of the International, and if the International is as concerned about this principle of self-regulation as the circumstances in their office would indicate they might be, they probably will move with reasonable dispatch in the resolution of the problem before it."

A great number of cases have been filed in the courts seeking to have various portions of the LMRDA interpreted. No problem is more difficult than one arising from the overlap between 29 U.S.C. § 411(a) (1), and 29 U.S.C. § 481(e).²

Section 481(e) provides in part, as follows:

* * * * * *

"(e) In any election required by this section which is to be held by secret ballot a reasonable opportunity shall be given for the nomination of candidates and every member in good standing shall be eligible to be a candidate and to hold office (subject to section 504 of this title and to reasonable qualifications uniformly imposed) and shall have the right to vote for or otherwise support the candidate or candidates of his choice, without being subject to penalty, discipline, or improper interference or reprisal of any kind by such organization or any member thereof. Not less than fifteen days prior to the election notice thereof

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