Wirtz v. LOCAL UNION NO. 705, HOTEL & RESTAURANT EMP., ETC.

• Decision Date: 14 February 1968
• Docket Number: No. 17920.,17920.
• Citation: 389 F.2d 717
• Parties: W. Willard WIRTZ, Secretary of Labor, Plaintiff-Appellant, v. LOCAL UNION NO. 705, HOTEL AND RESTAURANT EMPLOYEES AND BARTENDERS UNION, AFL-CIO Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

389 F.2d 717 (1968)

W. Willard WIRTZ, Secretary of Labor, Plaintiff-Appellant, v. LOCAL UNION NO. 705, HOTEL AND RESTAURANT EMPLOYEES AND BARTENDERS UNION, AFL-CIO Defendant-Appellee.

No. 17920.

United States Court of Appeals Sixth Circuit.

February 14, 1968.

Robert V. Zener, Dept. of Justice, Washington, D. C., for appellant, Carl Eardley, Acting Asst. Atty. Gen., Alan S. Rosenthal, Atty., Dept. of Justice, Washington, D. C., Lawrence Gubow, U. S. Atty., Detroit, Mich., on the brief.

Ernest Goodman, Detroit, Mich., for appellee, Goodman, Eden, Robb, Millender, Goodman & Bedrosian, Detroit, Mich., on the brief.

Before WEICK, Chief Judge, and PHILLIPS and CELEBREZZE, Circuit Judges.

PHILLIPS, Circuit Judge.

The Secretary of Labor filed a complaint to set aside a union election on the ground that qualification standards of candidates for office had not been enforced with uniformity. The action was initiated under Title IV, § 402, of the Labor-Management Reporting and Disclosure Act of 1959, 29 U.S.C. § 482. The purpose of Title IV is "to insure free and democratic union elections." Wirtz v. Local Union, 125, Laborers' International Union, 389 U.S. 477, 88 S.Ct. 639, 19 L.Ed.2d 716.

The election was conducted July 20, 1965. Myra Wolfgang was secretary-treasurer of the local union. Godfrey Franklin undertook to qualify as a candidate for vice president in opposition to an incumbent favored by Wolfgang. In order to qualify as a candidate, a member must have been in continuous good standing for twenty-four months prior to his nomination. The union bylaws provide that a member who is more than two months in arrears in payment of dues will be automatically suspended. The election committee of the local union advised Franklin that he did not qualify as a candidate because he had been more than two months in arrears.

Franklin thereupon sent a telegram to the election committee, care of Myra Wolfgang, dated June 15, 1965, protesting the decision that he was ineligible to run for office because not in continuous good standing. The election committee replied by informing Franklin that he had a right of appeal to the General President of the International Union.

On June 22, 1965, Franklin directed an appeal to the General President of the International Union. The appeal is attached as an appendix to this opinion.

Myra Wolfgang wrote a detailed letter to the International President contending that Franklin was ineligible to be a candidate because he had been in arrears in payment of dues for two calendar months.

Franklin's protest was overruled by the President of the International Union on July 9, 1965. He thereupon appealed to the General Executive Board of the International Union¹ and this appeal was denied.

An investigation thereupon was made by the Department of Labor, with notice to both the International Union and Local Union that one of the grounds of complaint was that "candidate qualifications were not uniformly applied." The International President informed the Area Director of the Department that "Nothing further will be done by this office, unless and until we are fully advised with much greater particularity of the circumstances and details concerning the alleged violations."

The complaint filed by the Secretary of Labor in this proceeding alleges that the union violated Section 401(e) of the Act, 29 U.S.C. § 481(e), in the conduct of the election. The alleged violation consisted of allowing Myra Wolfgang to run as a candidate for secretary-treasurer, despite the fact that she failed to fulfill the "two years continuous good standing" eligibility requirement, while this same requirement was applied to disqualify other candidates similarly situated. The complaint further alleges that the union altered its dues records so as to conceal the facts disqualifying secretary-treasurer Wolfgang.²

The union filed a motion to dismiss the complaint on the ground that Franklin's protest was directed only to the office of vice president and contained no charge concerning the disqualification of Myra Wolfgang for the office of secretary-treasurer. The union argues that Franklin's complaint to the union did not give notice of the charges which are the subject matter of the Secretary's complaint, thereby depriving the union of an opportunity to investigate the charges concerning Myra Wolfgang's qualifications. It is the union's position that the Secretary has no right to maintain this action because the statute requires that the remedies available under the constitution and by-laws of the union first must be exhausted. 29 U.S.C. § 482(a) (1).

Initially the District Judge denied the motion to dismiss, rendering an opinion which we find to be well-reasoned and sound. Thereafter the decision was announced in Wirtz v. Local Unions, Nos. 9, 9-A and 9-B, International Union of Operating Engineers, 366 F.2d 911 (10th Cir.).³ Upon the authority of this opinion the District Court vacated its previous order and granted the union's motion to dismiss the complaint for failure to exhaust internal union remedies. We reverse on authority of Wirtz v. Local Union 125, Laborers' International Union, supra, in which the Supreme Court held that in a suit by the Secretary of Labor under Section 402 of the Labor Management Reporting and Disclosure Act of 1959, the Secretary is not limited to the specific allegations made in the union member's initial complaint.

The essence of Franklin's internal complaint was that "although he paid his dues like everyone else, he was the only one disqualified." Although he alleged discrimination as between himself and the incumbent vice president, he also involved secretary-treasurer Wolfgang in his allegations, charging that the incumbent vice president was "her favored candidate" and that the real reason for his own disqualification was not the dues requirement, but the fact that he accepted the nomination "contrary to the wishes of secretary-treasurer Wolfgang." The burden of Franklin's internal complaint was that the dues requirement was being utilized in a discriminatory manner by the incumbent officers, including Myra Wolfgang, to stifle opposition.

Lacking the investigatory authority of the Secretary of Labor, Franklin could not have been expected to discover the fact later charged by the Secretary — that the union altered the dues records of Wolfgang to conceal her ineligibility to run for office under the same rule that had been used to disqualify Franklin.

The union's defense to this litigation is that Franklin's internal complaint failed to allege nonpayment of dues by Wolfgang, a fact which the union itself actively concealed. We find this defense to be untenable.

We hold that under the averments of the complaint in this case the action may be maintained by the Secretary attacking the legality of the election of the union's secretary-treasurer and other officers, even though the union member who exhausted internal remedies before the suit was filed was a candidate for vice president. We further hold that the internal complaint filed by Goldfrey Franklin in this case was adequate to give the union an opportunity to correct the violation and that the complaint is sufficient to aver exhaustion of internal union remedies in compliance with the statute. 29 U.S.C. § 482(a).

The order dismissing the complaint is reversed and the case is remanded to the District Court for trial.

APPENDIX

June 22, 1965 3111 Oakman Boulevard Detroit 39, Michigan Mr. Ed S. Miller General President Hotel and Restaurant Employees and Bartenders International Union 6 East Fourth Street Cincinnati, Ohio 45202

Dear Mr. Miller:

I herewith appeal from the decision of the Election Committee of Local 705 that I am ineligible to run for the office of Local Vice-President...