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January 24, 1972


The opinion of the court was delivered by: Will, District Judge.


The defendant's motion for summary judgment or partial summary judgment raises several questions concerning the requirements of §§ 401 and 402 of the Labor Management Reporting and Disclosure Act of 1959 (LMRDA), 29 U.S.C. § 481, 482, that a union member exhaust all internal union remedies before the Secretary of Labor may consider his complaint that the provisions of the Act relating to union elections have been violated. The defendant contends that certain issues asserted in the Secretary's complaint in this suit seeking to set aside the challenged election were not raised before the union, that, as to issues that the member did raise before the union, those issues were not presented in a manner which may be deemed to be utilization of union remedies and that, in any event, the Secretary has failed to prove that any of the alleged election irregularities affected the outcome of the election. After a review of the applicable legal principles and the factual assertions of the parties in the context of this motion, we conclude that the defendant's motion for summary judgment or partial summary judgment must be denied.

The contested election for officers of the defendant (hereinafter referred to as "Local 734") was held on December 20, 1969, and was conducted by representatives of Teamsters Joint Council No. 25, a central labor body composed of Teamster Union affiliates in the area comprising northern Illinois and extreme northwestern Indiana. On December 17, 1969, three days prior to the election, the unsuccessful candidates for office, who later became the protestants, sent a letter to the incumbent president of Local 734 who was running for and won reelection suggesting certain procedures for the upcoming election which the writers believed would insure a fair election. This letter was not received by the defendant until December 22, 1969, two days after the election.

During the course of the December 20 election, observers for the protestants handed an election official a document dated that day and titled "Protest." On December 21, 1969, the protestants sent the defendant a letter which incorporated the complaints contained in the December 20 protest and added several other claimed violations. For the purposes of this motion for summary judgment, all parties consider the December 20 protest and the December 21 letter as a unitary protest. When the defendant received the December 21 protest, it informed the protestants that a meeting of the union's executive board would be held in January to act upon the protest.

The only members who came to that meeting were Daniel Alexander and Joseph Senn, who had unsuccessfully run for the offices of Secretary-Treasurer and President, respectively. Senn read a prepared statement of position on behalf of himself and the other defeated candidates. The president of Local 734 asked them to present evidence to substantiate the charges contained in their protest letters of December 20 and 21. They responded to the effect that the evidence in support of the other charges was contained in the protests of the observers handed to the election officials during the election which were in the hands of the union. The defendant's executive board, basing its decision on the failure of the protestants to present evidence in support of their charges of irregularities, notified the protestants by letter dated February 3, 1970 that their protests had been denied.

On February 6, 1970, the protestants perfected an appeal of the adverse decision of Local 734 to Teamsters Joint Council No. 25. The protestants were informed by letter dated February 23, 1970 that a hearing before the Joint Council executive board would be held on March 9, 1970. At that hearing, Senn appeared on behalf of all the defeated candidates and again read a prepared statement and said that he would stand on the written charges alone. On March 25, 1970, more than three months subsequent to the original filing of the protest over the election and prior to any final union decision, the protestants filed a complaint with the Secretary of Labor. On April 6, 1970, Joint Council No. 25 gave its final decision by ruling adversely to the protestants.

The defendant urges that certain aspects of the Secretary's complaint in this action are improperly included because the protestants failed to exhaust their union remedies as to those claims. It asserts that no notice was ever given to it about certain of the alleged irregularities upon which the Secretary is partially basing his attempt to set aside the election and that the law is now clear that the Secretary may not so act.

Section 402(a) of the LMRDA authorizes a union member "who has exhausted the remedies available under the constitution and bylaws of such organization and of any parent body" to file a complaint with the Secretary alleging a violation of Section 401 of the LMRDA, which mandates certain union election procedures designed to insure fair union elections. Because the Supreme Court has twice considered this exhaustion provision, certain guidelines exist to aid the Court in the resolution of the issues before it.

In Wirtz v. Local Union Number 125, Laborers' International Union of North America, AFL-CIO, 389 U.S. 477, 88 S.Ct. 639, 19 L.Ed.2d 716 (1968) (hereinafter referred to as "Laborers Union"), the Secretary had filed a complaint challenging the validity both of a general election of all local officers and of a subsequent runoff election necessitated by a tie vote for one office in the general election. The complaining union member had challenged internally only the validity of the runoff election, alleging that members not in good standing had been allowed to vote in the election because of the practice of the local's secretary-treasurer of paying from local funds delinquent union dues of selected members. Under the local's constitution, failure to pay union dues resulted in the loss of all membership rights, one of which was the right to vote in local elections. Upon investigation, the Secretary discovered that, because of this practice, ineligible members had voted both in the runoff and in the general election, and that 16 of the 27 candidates in the general election had been improperly deemed eligible to run for the same reason.

The Court held that the Secretary properly could challenge the general election as well as the runoff election because the union "had fair notice from the violation charged by [the complaining member] in his protest of the runoff election that the same unlawful conduct probably occurred at the earlier election as well." 389 U.S. at 481, 88 S.Ct. at 641. Analysis of the statutory language and the legislative history convinced the Court that it would be "anomalous to limit the reach of the Secretary's cause of action by the specifics of the union member's complaint," 389 U.S. at 483, 88 S.Ct. at 642. The dual objectives of fostering union self-government and insuring fair union elections were seen by the Court to be "furthered by permitting the Secretary to include in his complaint at least any § 401 violation he has discovered which the union had a fair opportunity to consider and redress in connection with a member's initial complaint." 389 U.S. at 484, 88 S.Ct. at 643. The Court further stated, ". . . Congress, having given the Secretary a broad investigative power, cannot have intended that his right to relief be defined by a complaining member's ignorance of the law or the facts or by the artlessness of the member's protest." 389 U.S. at 485, 88 S.Ct. at 643. Because the Court concluded that the union had had fair notice of the challenge to the general election, it declined to rule on the issue of whether a member's protest triggers a § 402 enforcement action in which the Secretary would be permitted to file suit challenging any violation of § 401 discovered in his investigation of the member's complaint irrespective of whether or not it had been protested internally. 389 U.S. at 481-482, 88 S.Ct. at 639.

  In Hodgson v. Local Union 6799, United Steelworkers of
America, AFL-CIO, 403 U.S. 333, 91 S.Ct. 1841, 29 L.Ed.2d 510
(1971) (hereinafter referred to as "Local 6799"), the union
member had filed an internal protest concerning election
irregularities but did not challenge a meeting attendance rule
regarding eligibility for holding office. Faced with an adverse
union ruling, the member complained to the Secretary. After
conducting an authorized investigation, the Secretary filed
suit against the union challenging the election on the grounds
of improper use of union facilities, the irregularity
internally protested, and of imposition of unreasonable

eligibility requirements. The latter ground included a
challenge both to the claimed non-uniform application of the
meeting-attendance rule and to the validity of the rule
itself. The Court, in rejecting the Secretary's contention
that Section 402 of the LMRDA authorized him to investigate
and litigate all violations that may have affected an election
once a member exhausted his internal remedies concerning any
violation that occurred, held that the member's failure to
object to the attendance rule during pursuit of his internal
union remedies, of which he had clear knowledge at that time,
barred the Secretary from later challenging that rule in a
§ 402(b) action. In holding that knowledge upon the part of the
union member at the time of the protest of other irregularities
or potential challenges to an election prevents the Secretary
from litigating any § 401 violations other than those
protested, the Court recognized that union members might not
always have full knowledge of violations at the time that they
recognized and asserted other violations. The Court stated:

   . . To accept [the Secretary's] contention that
  a union member, who is aware of the facts
  underlying an alleged violation, need not first
  protest this violation to his union before
  complaining to the Secretary would be needlessly
  to weaken union self-government. Plainly [the
  Secretary's] approach slights the interest in
  protecting union self-regulation and is out of
  harmony with the congressional purpose reflected
  in § 402(a).
    Of course, any interpretation of the exhaustion
  requirement must reflect the needs of rank and
  file union members — those people the requirement
  is designed ultimately to serve. We are not
  unmindful that union members may use broad or
  imprecise language in framing their internal union
  protests and that members will often lack the
  necessary information to be aware of the existence
  or scope of many election violations. Union
  democracy is far too important to permit these
  deficiencies to foreclose relief from election
  violations; and in determining whether the
  exhaustion requirement of § 402(a) has been
  satisfied, courts should impose a heavy burden on
  the union to show that it could not in any way
  discern that a member was complaining of the
  violation in question. But when a union member is
  aware of the facts supporting an alleged election
  violation, the member must, in some discernible
  fashion, indicate to his Union his dissatisfaction
  with those facts if he is to meet the exhaustion
  requirement. 403 U.S. at 340-341, 91 S.Ct. at 1846.

From the decisions in Laborers Union and Local 6799 the following guidelines regarding the exhaustion requirement of § 402 of the LMRDA may be drawn. If a union member has internally protested an alleged election irregularity, the Secretary is authorized to litigate such issue. If the member had knowledge of an alleged § 401 violation and does not give the union "fair notice" of his complaint, the Secretary may not litigate such contention. Finally, if the member presented an inartfully drawn protest to the union which can be said to cover several violations, the Secretary may litigate other claims arguably covered by the protest when the union can be charged with knowledge thereof under the heavy duty placed upon it by Local 6799 to discern all various violations that a member might be asserting.

We now turn to the application of the above principles to the facts involved in this litigation. One aspect of the alleged deficiencies in the election which the Secretary seeks to prove is that the observers for the losing candidates were neither permitted to record the names of voters nor to challenge the eligibility of prospective voters. The defendant moves for summary judgment on this issue contending that the protestants did not give the union adequate notice of these deficiencies, that no requirement exists in the LMRDA for ...

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