Wirtz v. LOCAL UNION NO. 125, INTERNAT'L HOD CARRIERS', ETC., Civ. A. No. C 64-99.

CourtU.S. District Court — Northern District of Ohio
Writing for the CourtMortimer Riemer, Cleveland, Ohio, for defendant
Citation231 F. Supp. 590
Docket NumberCiv. A. No. C 64-99.
Decision Date07 February 1964
PartiesW. Willard WIRTZ, Secretary of Labor. United States Department of Labor, Plaintiff, v. LOCAL UNION NO. 125, INTERNATIONAL HOD CARRIERS', BUILDING AND COMMON LABORERS' UNION OF AMERICA, Defendant.

231 F. Supp. 590

W. Willard WIRTZ, Secretary of Labor. United States Department of Labor, Plaintiff,
v.
LOCAL UNION NO. 125, INTERNATIONAL HOD CARRIERS', BUILDING AND COMMON LABORERS' UNION OF AMERICA, Defendant.

Civ. A. No. C 64-99.

United States District Court N. D. Ohio, E. D.

February 7, 1964.


231 F. Supp. 591

Charles Donahue, Sol., James R. Beaird, Associate Sol., Aaron A. Caghan, Regional Atty., U. S. Department of Labor, John W. Douglas, Asst. Atty. Gen., Merle M. McCurdy, U. S. Atty., Elmer A. Giuliani, Asst. U. S. Atty., Harland F. Leathers, Atty., Department of Justice, for plaintiff.

Mortimer Riemer, Cleveland, Ohio, for defendant.

CONNELL, Chief Judge.

On February 7, 1964, the Secretary of Labor brought complaint against the defendant union under the Labor-Management Reporting and Disclosure Act of 1959, 73 Stat. 519 et seq., 29 U.S.C.A. §§ 401-530, hereinafter referred to as LMRDA. The plaintiff seeks to void the election of officers in 1963, compel a new election under the aegis of the federal government, and to restrain those presently holding office from disposing of the assets of the union.

From the complaint, the allegations of which we must accept as true for the purposes of this motion, we recognize these uncomplicated facts which have brought this case here. On June 8, 1963, the union held an election; all offices were filled except that of Business Representative, where the vote ended in a tie. Consequently, a runoff election was held on July 13, 1963 for that office alone. After this election, a member in good standing (as yet unnamed) lodged a protest with the union against the conduct of that election. Having received a denial of his protest, he filed a timely complaint with the Secretary of Labor, alleging violations of 29 U.S.C.A. § 401. After investigation and consideration, the Secretary instituted this action which complains not only of irregularities in the conduct of that run-off election, but also attacks the first election.

The defendant now moves to dismiss that portion of the complaint which is directed to the election of June 8, 1963, on the ground that the statute (29 U.S. C.A. § 482(a)1) permits suit by the Secretary only at the instance of a complaining member who has exhausted his internal avenues of protest. There is no allegation that a member complained internally about the conduct of that June 8 election. The plaintiff resists the motion on three grounds: (1) that the runoff election was such an integral part of the whole election that complaint against it reaches to the entire election; (2) the legitimate inquiry by the Secretary addressed to the election of July 13, 1963, uncovered irregularities which must be corrected in the interest of the public; (3) the exhaustion of remedies is not an absolute requirement, so the Court in its discretion is empowered to disregard the absence of internal attack upon the election of June 8.

We cannot agree with the Secretary that exhaustion of the member's right of protest within the union against the run-off election operates to bring the whole election under the scrutiny of the

231 F. Supp. 592
Secretary and the jurisdiction of this Court. The plaintiff argues strongly that the two polls are but two elements of a single transaction, so that attack by the member upon the balloting on July 13 is really an attack upon the entire election. To support this contention, the plaintiff directs the Court's attention to Webster's New Collegiate Dictionary 761 (1961), which defines "run-off" as "a final race, contest, or the like, to decide an earlier one that has ended without a decision in favor of any one competitor." Though this definition, and common sense, establish a strong logical relationship between these two polls, it must be remembered that the complaint is directed against the procedural conduct of the election. We cannot assume that on both occasions the identical procedure was utilized by the union. We cannot assume that the irregularity to which the member addressed his complaint about the run-off was present in the initial balloting. Nor can we assume that the member intended to complain about the whole election when he only notified the union that he was dissatisfied with the conduct of the run-off election. Thus the first ground advanced by the Secretary is untenable

The second and third contentions proffered by the plaintiff are designed to elicit from this Court a favorable construction of § 482(a) in light of the permissive language contained in § 411(a) (4) of the statute. Section 411(a) (4) states that a member "may" be required to exhaust internal remedies before seeking enforcement of his rights in an administrative or legal proceeding. It is not wholly insignificant that earlier drafts of this "Bill of Rights" contained the word "shall" instead of "may". Cf. Legislative History of Labor-Management Reporting and Disclosure Act, P. 698, H.R. 8342, as reported U.S.Code Congressional and Administrative News, p. 2318.2 In other words, the Secretary would have us read the permissive spirit of § 411, which is the heart of the Act, into § 482, upon which this action is predicated.

As is often the case when a court is confronted with a new statute, our attention is directed to the situation which provoked the LMRDA and the deliberations of the legislative body which enacted the bill. This Act was the result of agitation for legal control over union leadership in order to preserve democracy within unions and to guarantee every union member the right to make his voice heard in the formulation of union policy. One of the most articulate pleas for such legislation was that of then Professor Archibald Cox. In his article "The Role of Law in Preserving Union Democracy", 72 Harvard Law Review 609, he specifically rejected one form of proposed legislation, then pending, which gave the government wide powers to regulate the internal affairs of unions:

"The fundamental objection is that it would have turned over to an arm of the federal government the responsibility of carrying on the internal governmental processes of a labor union without any showing that the union officers and members were incompetent and corrupt. Such a measure does not promote freedom or democracy. It reduces self-government. It denies the private responsibility and self-determination which lie at the heart of a voluntary association." 72 Harv.L. Rev. 609, 630.

Commenting upon the problem which the instant case presents, Professor Cox stated:

"Any member who can show that he has pursued in timely fashion the remedies available to him, within the
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13 practice notes
  • Berry v. Michigan Bell Telephone Company, Civ. No. 27742.
    • United States
    • United States District Courts. 6th Circuit. United States District Court (Western District Michigan)
    • October 27, 1967
    ...(1959); 29 U.S.C. § 482(a); Wirtz v. Local Union No. 125, International Hod Carriers', Building and Common Laborers' Union of America, 231 F.Supp. 590 (N.D.Ohio 1964); Wirtz v. Local Unions No. 9, etc., International Union of Operating Engineers, 366 F.2d 911 (10th Cir. 1966). It doesn't nu......
  • Zenith Dredge Company v. Corning, Civ. A. No. 1024.
    • United States
    • United States District Courts. 7th Circuit. Western District of Wisconsin
    • July 27, 1964
    ...the plaintiffs believe that the Commonwealth has deprived them of their property without due process of law, this Court will be here." 231 F. Supp. 590 For the reasons stated in the foregoing opinion, it is ordered that defendant's motion to dismiss on the ground that this Court lacks juris......
  • Wirtz v. Local Union No 125, Laborers International Union of North America, Afl 8212 Cio, No. 58
    • United States
    • United States Supreme Court
    • January 15, 1968
    ...June 8 general election was fatal to the Secretary's action addressed to that election and dismissed that part of the complaint. D.C., 231 F.Supp. 590. The Secretary appealed to the Court of Appeals for the Sixth Circuit. During pendency of the appeal, respondent Local conducted its next re......
  • Wirtz v. LOCAL UNION 169, INTERNATIONAL HOD CARRIERS, ETC., Civ. No. 1660.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. District of Nevada
    • October 19, 1965
    ...respect to the issues before the Court. We think Chief Judge Connell, in his opinion in Wirtz v. Local Union No. 125 (N.D.Ohio, 1964), 231 F.Supp. 590, has convincingly elucidated the history of the requirement that internal union remedies be exhausted and the conclusion that it is not a su......
  • Request a trial to view additional results
13 cases
  • Berry v. Michigan Bell Telephone Company, Civ. No. 27742.
    • United States
    • United States District Courts. 6th Circuit. United States District Court (Western District Michigan)
    • October 27, 1967
    ...(1959); 29 U.S.C. § 482(a); Wirtz v. Local Union No. 125, International Hod Carriers', Building and Common Laborers' Union of America, 231 F.Supp. 590 (N.D.Ohio 1964); Wirtz v. Local Unions No. 9, etc., International Union of Operating Engineers, 366 F.2d 911 (10th Cir. 1966). It doesn't nu......
  • Zenith Dredge Company v. Corning, Civ. A. No. 1024.
    • United States
    • United States District Courts. 7th Circuit. Western District of Wisconsin
    • July 27, 1964
    ...plaintiffs believe that the Commonwealth has deprived them of their property without due process of law, this Court will be here." 231 F. Supp. 590 For the reasons stated in the foregoing opinion, it is ordered that defendant's motion to dismiss on the ground that this Court lacks juri......
  • Wirtz v. Local Union No 125, Laborers International Union of North America, Afl 8212 Cio, No. 58
    • United States
    • United States Supreme Court
    • January 15, 1968
    ...June 8 general election was fatal to the Secretary's action addressed to that election and dismissed that part of the complaint. D.C., 231 F.Supp. 590. The Secretary appealed to the Court of Appeals for the Sixth Circuit. During pendency of the appeal, respondent Local conducted its next re......
  • Wirtz v. LOCAL UNION 169, INTERNATIONAL HOD CARRIERS, ETC., Civ. No. 1660.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. District of Nevada
    • October 19, 1965
    ...respect to the issues before the Court. We think Chief Judge Connell, in his opinion in Wirtz v. Local Union No. 125 (N.D.Ohio, 1964), 231 F.Supp. 590, has convincingly elucidated the history of the requirement that internal union remedies be exhausted and the conclusion that it is not a su......
  • Request a trial to view additional results

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