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March 16, 1973


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 Labor.

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.

It appears from the evidence that Henderson did not have an adequate opportunity to make any oral protest at the July 1970 meeting of Local 3911. It must have been apparent to the presiding officer that members were on the premises who wished to submit protests, and the meeting should have been conducted in such a manner that protests could be heard. The union's constitution required as much. Accordingly, Henderson could properly have protested in the appeal before the International Commission even though he ...

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