The opinion of the court was delivered by: Tone, District Judge.
This action was instituted by the Secretary of Labor under
Title IV of the Labor Management Reporting and Disclosure Act of
1959, 29 U.S.C. § 401 et seq. In his original complaint the
Secretary sought a judgment declaring the election of local union
officers conducted by defendant on June 2, 1970 to be null and
void and directing that a new election be conducted for all
officers of the local under the supervision of the Secretary of
The issues raised by the pleadings with respect to secrecy of
the ballot and inadequacy of safeguards during the election were
resolved prior to trial by the agreement of the parties that the
defendant will conduct its May 1973 nominations and June 1973
election of local officers under the supervision of the Secretary
of Labor. The issues tried related to the validity of the
following requirement contained in Article VII, Section 9 of the
Constitution of the International Union:
"No member shall be eligible for election as a Local
Union officer or Grievance Committeeman unless . . .
he has attended at least one-half (1/2) of the
regular meetings of his Local Union for thirty-six
(36) months previous to the June 1970 election,
unless his Union activities or working hours
prevented his attendance."
Article I of the Constitution of the International makes that
document also the constitution of each local union. Substantially
the same meeting attendance requirement is repeated in the
International Union Elections Manual and in Article IV, Section
5 of the by-laws of the local union.
The statutory standard under which the validity of these
provisions is to be tested is Section 401(e) of the Act
(29 U.S.C. § 481(e)), which provides in pertinent part as follows:
"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
reasonable qualifications uniformly imposed). . . ."
It is a prerequisite to the Secretary's challenge to the
meeting attendance requirement in this action that the challenge
be made in a complaint filed with the Secretary by "A member of
a labor organization . . . who has exhausted the remedies
available under the constitution and bylaws of such organization
and of any parent body. . . ." Section 402(a) of the Act,
29 U.S.C. § 482(a). The Supreme Court has expressly held that before
the validity of the Steelworkers meeting attendance rule can be
challenged by the Secretary, union remedies for challenging the
rule must be exhausted. 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). Accordingly it is
necessary to decide first whether the meeting attendance rule was
challenged under union protest procedures.
Plaintiff contends that a protest raising the issue of the
validity of the meeting attendance rule was made by Lewis
Henderson, who was a member of the defendant local at the time of
the challenged election and a candidate for the office of local
union president in that election, and that his protest satisfied
the requirements of Section 402(a) of the Act and Hodgson v.
Local Union 6799, supra, 403 U.S. 333, 91 S.Ct. 1841.
The first opportunity to make protests occurred at the local
union meeting held on July 12, 1970. Although the first regular
meeting held following the election was on June 7, 1970, it was
the long standing custom in the local, followed in this instance,
for the Election Committee to make its report at the July
meeting. Prior to the July meeting, a written protest containing
21 charges of violation was prepared by Henderson and signed by
him and a number of other union members. The validity of the
meeting attendance requirement was not challenged in any of the
21 charges. On the contrary, charge No. 3 read as follows:
"Candidates were nominated and elected, who did not
have 18 meetings. Names were either forged,
alterations were made, or tampered with the local
union attendance book in violation of Art. 7, Sec. 9,
of the International Constitution."
Henderson testified that he omitted the meeting attendance
challenge from the protest because some members who signed the
protest were not in agreement with that challenge. Another
witness testified that the meeting attendance challenge was
omitted because the meeting attendance rule was being challenged
in another case pending somewhere else and it was thought that
the decision in that case would ultimately be applied here.
Henderson said that he left the meeting attendance point out
intending to raise it orally at the meeting.
The testimony is in conflict concerning what happened at the
July 12, 1970 meeting. Witnesses called by plaintiff testified
that the Election Committee report was read and adopted without
providing any opportunity for the presentation of protests. It is
clear that the 21-point written protest was delivered to the
recording secretary prior to the meeting and, after the approval
of the Election Committee's report by the membership, was read
out to the membership. Samuel Clay, president of the local and
presiding officer at the meeting, testified that after the
reading of the Election Committee report he called for questions
on the report and there were several such questions but that
while this was going on signatures on the written protest were
being obtained outside the union hall and the written protest was
not brought into the meeting and presented until after those at
the meeting had voted on the Election Committee report and
approved it. Clay says he ruled the protest out of order because
it should have been presented at the time of the teller's report.
He took a division of the house, which supported the chair. He
then allowed the reading of the protest anyway. He testified that
no one attempted to question the validity of the meeting
attendance rule during the meeting. Several witnesses testified
that when Henderson attempted to speak he was shouted down by the
membership at the meeting. It is clear that, whatever the reason,
the meeting ultimately erupted into disorder without an
opportunity for Henderson to make any oral protest.