Shultz v. LOCAL 1291, INTERNAT. LONGSHOREMEN'S ASS'N

• Decision Date: 16 July 1970
• Docket Number: No. 18148.,18148.
• Parties: George P. SHULTZ, Secretary of Labor, United States Department of Labor, Appellant, v. LOCAL 1291, INTERNATIONAL LONGSHOREMEN'S ASSOCIATION, Appellee.
• Court: U.S. Court of Appeals — Third Circuit

429 F.2d 592 (1970)

George P. SHULTZ, Secretary of Labor, United States Department of Labor, Appellant, v. LOCAL 1291, INTERNATIONAL LONGSHOREMEN'S ASSOCIATION, Appellee.

No. 18148.

United States Court of Appeals, Third Circuit.

Argued May 7, 1970.

Decided July 16, 1970.

Patricia S. Baptiste, Dept. of Justice, Washington, D. C. (William D. Ruckelshaus, Asst. Atty. Gen., Louis C. Bechtle, U. S. Atty., Robert V. Zener, Attys., Dept. of Justice, Washington, D. C., on the brief), for appellant.

Martin J. Vigderman, Freedman, Borowsky & Lorry, Philadelphia, Pa. (Abraham E. Freedman, Philadelphia, Pa., on the brief), for appellee.

Before MARIS, FREEDMAN and SEITZ, Circuit Judges.

OPINION OF THE COURT

FREEDMAN, Circuit Judge.

This action was brought by the Secretary of Labor under Title IV of the Labor-Management Reporting and Disclosure Act¹ to declare invalid an election in which Abdullah Ahmed Bey, the complaining union member,² was defeated for the presidency of Local 1291, International Longshoremen's Association, and to require a new election supervised by the Secretary. Section 401(e) of the Act³ provides that "every member in good standing shall be eligible to be a candidate and to hold office (subject * * * to reasonable qualifications uniformly imposed) * * *." The suit charges, inter alia, that Rule 3(c) (3) of the Local's by-laws violated § 401(e) by imposing racial qualifications for office.⁴ Rule 3(c) (3) provides:

"In accordance with tradition heretofore observed, the president shall be of the colored race, vice president, white, recording secretary, white, financial secretary, colored, ass\'t financial secretary, white, 4 business agents equally proportioned, 3 trustees (auditors) 1 white & 2 colored, 2 sergeants at arms, 1 colored and 1 white."

The district court, relying on our decision in Wirtz v. Local 153, Glass Bottle Blowers Ass'n, 372 F.2d 86 (3 Cir.1966), originally dismissed the action as moot because a later election had meantime intervened. When the Supreme Court reversed our decision in Local 153 (389 U.S. 463, 88 S.Ct. 643, 19 L.Ed.2d 705 (1968)), we remanded this case, which was then before us on appeal, to the district court for further proceedings. On remand the district court after a hearing dismissed the action without reaching the merits⁵ on the ground that Bey had not exhausted his internal union remedies as required by § 402(a) of the Act (29 U.S.C. § 482(a)).

I.

Bey, a candidate nominated for the presidency of the Local, was defeated by Richard I. Askew in an election held on December 10, 1963. On December 17, 1963, he filed a complaint with the president of the Local claiming, inter alia,⁶ that the election was invalid because of Rule 3(c) (3).⁷

A hearing was held at which Bey appeared before the Local's Executive Board. The Board advised him on February 3, 1964, that it rejected his complaint and then referred it to the membership of the Local. Bey appeared before the membership, which voted to sustain the Board's decision. The date of the membership action does not appear, but on February 8, 1964, within a few days of the meeting, Bey sent a letter to the president of the Philadelphia District Council, which he intended as an appeal from the decision of the Local. He asked the District Council if it decided his appeal against him to "forward" the appeal to the Atlantic Coast District of the union, evidently the next higher unit of the I.L.A.

Bey heard nothing from the District Council concerning his appeal, and therefore on March 26, 1964, made his complaint to the Department of Labor pursuant to § 402(a) of the Act, which authorizes the filing of a complaint with the Secretary of Labor for any alleged violations of § 401. On April 10, 1964, he received a letter from Joseph S. Kane, secretary of the District Council, stating that the president of the District Council had not informed him of Bey's letter of appeal, of which he had learned the day before from the Department of Labor. He offered Bey an immediate hearing before the District Council, but Bey made no reply. On May 25, 1964, the Secretary of Labor instituted this action.

The district court held that Bey had not properly invoked the remedies available to him under the union's constitution for a number of reasons: (1) He should have either (a) appealed directly to the highest union authority, by-passing all intermediate appeals, in order to obtain a final decision before the expiration of the three-month period, or (b) he should not have remained quiescent during the District Council's inaction but should have appealed its inaction to the International's Executive Council in order to obtain its final decision within three months; and (2) his appeal to the District Council was ineffective because he sent it to the president instead of the secretary.

II.

The statute authorizes a union member to file a complaint with the Secretary within one calendar month after he has either (a) exhausted the remedies available under the constitution and bylaws of the union, or (2) invoked the available remedies without obtaining a final decision within three calendar months.⁸

It is clear that Bey did not exhaust all his union remedies as required under the first alternative. The full process of appeal under the constitution and bylaws would have taken him to the I.L.A. Executive Council and perhaps even to the Convention of the union.⁹ The question therefore is whether he invoked the available remedies without obtaining a final decision within three calendar months and thus came within the second alternative.

1. The two alternative provisions of § 402(a) illustrate the distinction between requirements of exhaustion and invocation of remedies. The first alternative is one of direct exhaustion of the remedies available under the union's constitution and by-laws. The second alternative, however, requires only the invocation of available remedies and authorizes resort to the Secretary of Labor, regardless of exhaustion, if the remedies invoked have not yielded a final decision within three calendar months. Both requirements are intended to afford the union an opportunity to hear the complaint of its member and to redress his grievance before he may resort to governmental intervention. Wirtz v. Local 153, Glass Bottle Blowers Ass'n, 389 U.S. 463, 472, 88 S.Ct. 643 (1968); Wirtz v. Local Union No. 125, Int'l, etc. Laborers' Union of N. Amer., 389 U.S. 477, 484, 88 S.Ct. 639, 19 L.Ed.2d 716 (1968). The statute thus fosters union self-government and seeks to "accustom members to utilizing remedies available within their own organization." Wirtz v. Local Union No. 125, Int'l, etc. Laborers' Union of N. Amer., 389 U.S. at 484, 88 S.Ct. at 642. The preliminary resort to union remedies has the additional advantage of sharpening issues before they reach the courts. Detroy v. American Guild of Variety Artists, 286 F.2d 75, 79 (2 Cir.), cert. denied 366 U.S. 929, 81 S.Ct. 1650, 6 L.Ed.2d 388 (1961). Congress has thus afforded unions an opportunity for the intra-union disposition of the grievances of members before they can invoke the aid of the Secretary of Labor and through him the process of the courts.

Bey made his complaint to the union on December 17, 1963, seven days after the election. It was almost two months, however, before he was notified on February 3, 1964, of the adverse decision of the Local's Executive Board. When shortly thereafter the Local's membership affirmed the Executive Board's decision, Bey immediately appealed on February 8, 1964, although under the constitution¹⁰ he had 30 days in which to act. If he had waited to appeal until the end of the authorized time the three-month period fixed by the Act would have expired in little more than a week.¹¹

Although Bey did not take advantage of the 30-day period for appeal to the District Council, the union now claims, as the district court held, that he should have appealed from the District Council's failure to act to the Executive Council of the International¹² or alternatively should have by-passed the District Council and taken his appeal directly to the Executive Council of the International¹³ in order to seek to obtain a final decision within three months.

This contention confuses the requirement under subsection (1) of § 402(a) of exhausting all remedies available regardless of the time required to do so with the alternative authorization under subsection (2) to complain to the Secretary if the union fails to render a final decision within three calendar months. Bey had no responsibility for the time requirements which the union itself created or for the time consumed by the union agencies in acting on his appeal.¹⁴ No burden rested on him to compel the union officials to render a decision within the three-month period or to bypass any of the stages of appeal and to telescope them in order that an ultimate decision by the highest appellate organ of the union might be reached within three months. Under the statute it is enough that he invoked the union's authorized procedure for appeal, and if the appeal was still pending after three calendar months elapsed he was entitled to file his complaint with the Secretary of Labor within one month thereafter.¹⁵

If a union desires the opportunity to render its ultimate appellate judgment on a member's complaint before he may turn to the Secretary of Labor under subsection (2) of § 402(a), it is the union which must provide an appellate timetable which produces a final judgment within the three calendar month period. It cannot rely upon its own stately procedure for appeal or its own delay in deciding various stages of appeal to destroy the right of a member to resort to the Secretary of Labor under the alternative provision of subsection (2).

The union points to Harris v. International Longshoremen's Association, Local 1291, 321 F.2d 801, 806-807 (3 Cir.1963), an earlier case in which Bey was involved in a...