Petition — Local Lodge No. 875, Brotherhood Railway Carmen of the United States & Canada v. Donovan

80-681 |

! [faz Supreme Court, U.S,

le FILED

oct 14 1980

No. |

, JR., CLERK

IN THE

Supreme Court of the United States

OCTOBER TERM, 1980

LocaL LopGE No. 875, BROTHERHOOD RAILWAY

CARMEN OF THE UNITED STATES AND CANADA,

AFL-CIO,

Petitioner,

vs .

RAY MARSHALL, SECRETARY OF LABOR,

UNITED STATES DEPARTMENT OF LABOR,

Respondent.

PETITION FOR WRIT OF CERTIORARI

To The United States Court of Appeals

for the Fifth Circuit

C. MARSHALL FRIEDMAN

Newton G. McCoy

FRIEDMAN WEITZMAN

& FRIEDMAN, P.C.

1133 Pine Street

St. Louis, Missouri 63101

(314) 621-2200

Counsel for Petitioner

Local Lodge No. 875,

Brotherhood Railway

Carmen of the United

States and Canada,

AFL-CIO

October 10, 1980

St. Louis Law Printing Co., Inc., 411 No. Tenth Street 63101 314-231-4477

QUESTIONS PRESENTED FOR REVIEW

1) Whether the three month time period set forth in 29 U.S.C.

Section 482(a)(2), pertaining to exhaustion of internal remedies

by a complaining union member, begins to run only upon the

member’s first invocation of internal remedies following the

alleged violation of the Labor Management Reporting and

Disclosure Act of 1959.

2) Whether it is error, as a matter of law, to grant summary

judgment, when the court has failed, neglected and refused to

rule upon pending discovery motions pertaining to relevant and

material factual issues sought by the party opposing summary

judgment, and has further refused to allow completion of rele-

vant and material discovery which was contingent upon the

court’s ruling on the aforesaid motions.

3) Whether, pursuant to 29 U.S.C. Section 481, a court may

overturn a union’s reasonable and consistent interpretation of

its own constitutional provisions pertaining to eligibility for

union office when the union’s action is consistent with regula-

tions promulgated by the Secretary of Labor and the court’s ac-

tion is inconsistent with such regulations.

iii

TABLE OF CONTENTS

Page

Questions Presented for Review..........+eeeeeeeees i

Table OF COmtemts 2... ccc ccccccccccccccccccccees iii

ED vnc svccevceeccdensecdcsecesoveeese 1

ce tesceseneccevastevscesescsncésves 2

DE UOUINOMS oo cc ccccccccveccccccccceccces 2

REINS os ccc cccccccccccoosccecpoeces 5

Federal Rules of Civil Procedure .............+eeee0: 5

MUMPIMREEE GE TRO CONS 2... ccc ccccscccrccccccccccees 7

Reasons For Granting The Writ and Argument........ 13

I. The Union Member’s Complaint To The

Secretary of Labor In the Instant Case Was

Prematurely Filed and Was Therefore Not in

Compliance with 29 U.S.C. Section 482. Ac-

cordingly, Respondent Could Not Properly

Bring Suit Based Upon that Complaint. In

Ruling In Favor Of Respondent the Courts

Below Improperly Disregarded Clear Con-

gressional Directives As Embodied in 29 USC

oe ise cc eee ie ewer anaseess 13

II. The Judgment Entered By The District Court

Was Erroneous as A Matter of Law Because

the Court Entered Judgment Without Even

Ruling on Relevant and Material Discovery

Motions And Without Permitting Comple-

tion of Discovery Which Had Been Agreed to

AD ..seccscevscseckes sous 18

PREVIOUS PAGE WAS BLANK |

iv

III. Petitioner Properly and Uniformly Applied

It’s Meeting Attendance Rule, As Permitted

By The Labor-Management Reporting and

Disclosure Act. In So Doing, It In No Manner

PRI wi.b 8'o'0 845 de eenees fo nedcss

ns Ee lee

Appendix A - Judgment of the United States Court of

Appeals For The Fifth Circuit, July 15, 1980..........

Appendix B - Order of the United States Court of Ap-

peals for the Fifth Circuit Denying Rehearing,

I Bs SOU 6 aA k oss 0's 08 'eo oka Sooo o's

Appendix C - Order and judgment of the United States

District Court for the Southern District of Mississippi,

EN WUT 0.voNic batae Ceres date aera er

TABLE OF AUTHORITIES

Cases

Brennan v. Employees Independent Association, Pen-

nsylvania Power and Light Company, 381 F. Supp.

Se io nak Pe awas bade viccesia’s

Calhoon v. Harvey, 379 U.S. 134, 85 S.Ct. 292, 13

NE 6 0 ceo aW EN 45040 csnee ceenen’

Hodgson v. International Printing Pressmen, 440 F.2d

1113 (6th Cir.) cert. den. 404 U.S. 820, 92 S.Ct. 63

SNE WécnGdna evans s4.0uwsssatare teh ateie ees

Hodgson v. United Steelworkers of America, 459 F.2d

ey rae ae ee

Loew’s, Inc. v. Bays, 209 F.2d 610 (Sth Cir. 1954) .....

A-3

26

13

Morrison Flying Service v. Deming National Bank, 340

F.2d 430 (10th Cir. 1965) .....cccccccccccvevees

N.L.R.B. v. Smith Industries, Inc., 403 F.2d 889 (5th

ER er ere eee uibwen

Palmer v. Chamberlin, 191 F.2d 532 (Sth Cir. 1951)....

Parrish v. Board of Commissioners of Alabama State

Bar, 533 F.2d 942 (Sth Cir. 1976) .........-.006-

Reeves v. City of Jackson, 532 F.2d 491, 494 (Sth Cir.

FP ne err yes ere r rr rrr yet i

Schultz v. Local 1291, International Longshoremen’s

Association, 429 F.2d 592 (3rd Cir. 1970) ........

Schultz v. United Steelworkers, 319 F.Supp. 1172;

es Ps MOE beware ed cenavesen tees teunenses

Slagle v. United States, 228 F.2d 673 (Sth Cir. 1956)....

Wirtz v. H.H. Guy Lodge No. 872, Brotherhood of

Railroad Trainmen, 279 F. Supp. 873 (W.D. Pa.

Wirtz v. Independent Petroleum Workers, 307 F. Supp.

ot 8 | REPT eT re rere

Wirtz v. Local 165, International Hod Carriers, 246

F. Supp. 741 (D. Nev. 1965).......csccccccccens

United States Statutes

28 U.S.C. Section 1254(1)......cccccccccccecscecces

Section 401 of the Labor Management Reporting and

Disclosure Act of 1959, 29 U.S.C. Section 481 ....

23

22

21

22

22

14

19

22

16

16

19

2,5

8,17,24

vi

Section 402 of the Labor Management Reporting and

Disclosure Act of 1959 29 U.S.C. Section 482 ..... 3,8

13,14,16,17,18,19

Code Of Federal Regulations

Pre ls NBD 6.6.60 0 cecdnrrnccccscecscnns 5,27

es PON EEOE bs 06s Ke cuctncevedeescne¥ean 5,26

ED 65.0 vc ck be sedinscctwanwes soeueeeueeuaree 5,21,23

No.

IN THE

Supreme Court of the United States

OCTOBER TERM, 1980

LocaL LoDGE No. 875, BROTHERHOOD RAILWAY

CARMEN OF THE UNITED STATES AND CANADA,

AFL-CIO,

Petitioner,

vs.

RAY MARSHALL, SECRETARY OF LABOR,

UNITED STATES DEPARTMENT OF LABOR,

Respondent.

PETITION FOR WRIT OF CERTIORARI

To The United States Court of Appeals

for the Fifth Circuit

Petitioner, Local Lodge No. 875, Brotherhood Railway

Carmen of the United States and Canada, AFL-CIO, respect-

fully prays that a writ of certiorari be issued to review the judg-

ment of the United States Court of Appeals for the Fifth Circuit

entered in this proceeding on July 15, 1980, affirming a judg-

ment of the United States District Court for the Southern

District of Mississippi entered on September 4, 1979.

OPINION BELOW

The judgment of the Court of Appeals, which was entered

without formal opinion, appears as Appendix A, attached

hereto, and is reported at 622 F.2d 1042 (Sth Cir. 1980). A copy

of the order of the Court of Appeals denying rehearing is at-

tached hereto as Appendix B. A copy of the judgment of the

—_ on

United States District Court for the Southern District of

Mississippi, affirmed by the Court of Appeals herein, is attach-

ed hereto as Appendix C.

JURISDICTION

The judgment of the United States Court of Appeals for the

Fifth Circuit was entered on July 15, 1980. Rehearing was

denied on September 11, 1980. This Petition is filed within rine-

ty (90) days of July 15, 1980. This Court’s jurisdiction is invok-

ed under 28 U.S.C. Section 1254 (1).

STATUTORY PROVISIONS

29 U.S.C. Section 481 (e) provides:

“*(e) Nomination of candidates; eligibility; notice of

election; voting rights; counting and publication of results;

preservation of ballots and records. In any election re-

quired 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 sec-

tion 504 (29 USCS Section 504) and to reasonable

qualifications uniformly imposed) and shall have the right

to vote for or otherwise support the candidate or can-

didates of his choice, without being subject to penalty,

discipline, or improper interference or reprisal of any kind

by such organization or any member thereof. Not less than

fifteen days prior to the election notice thereof shall be

mailed to each member at his last known address. Each

member in good standing shall be entitled to one vote. No

member whose dues have been withheld by his employer

for payment to such organization pursuant to his volun-

tary authorization provided for in a collective bargaining

agreement shall be deciared ineligible to vote or be a can-

didate for office in such organization by reason of alleged

delay or default in the payment of dues. The votes cast by

a

members of each local labor organization shall be counted,

and the results published, separately. The election officials

designated in the constitution and bylaws or the secretary,

if no other official is designated, shall preserve for one year

the ballots and all other records pertaining to the election.

The election shall be conducted in accordance with the

constitution and bylaws of such organization insofar as

they are not inconsistent with the provisions of this title (29

USCS Sections 481-483).”’

29 U.S.C. Section 482 provides in part:

Section 482. Enforcement

(a) Filing of complaint; presumption of validity of

challenged election. A member of a labor organization-

(1) who has exhausted the remedies available under

the constitution and bylaws of such organization and

of any parent body, or

(2) who has invoked such available remedies with-

out obtaining a final decision within three calendar

months after their invocation,

may file a complaint with the Secretary within one

calendar month thereafter alleging the violation of any

provision of section 401 (29 USCS Section 481) (including

violation of the constitution and bylaws of the labor

organization pertaining to the election and removal of of-

ficers). The challenged election shall be presumed valid

pending a final decision thereon (as hereinafter provided)

and in the interim the affairs of the organization shall be

conducted by the officers elected or in such other manner

as its constitution and bylaws may provide.

(b) Investigation of complaint; commencement of civil

action by Secretary; jurisdiction; preservation of assets.

The Secretary shall investigate such complaint and, if he

en

finds probable cause to believe that a violation of this title

(29 USCS Sections 481-483) has occured and has not been

remedied, he shall, within sixty days after the filing of such

complaint, bring a civil action against the labor organiza-

tion as an entity in the district court of the United States in

which such labor organization maintains its principal of-

fice to set aside the invalid election, if any, and to direct

the conduct of an election or hearing and vote upon the

removal of officers under the supervision of the Secretary

and in accordance with the provisions of this title (29

USCS Sections 481-483) and such rules and regulations as

the Secretary may prescribe. The court shall have power to

take such action as it deems proper to preserve the assets of

the labor organization.

(c) Declaration of void election; order for new election;

certification of election to court; decree; certification of

result of vote for removal of officers. If, upon a

preponderance of the evidence after a trial upon the

merits, the court finds-

(1) that an election has not been held within the

time prescribed by section 401 (29 USCS Section 481),

or

(2) that the violation of section 401 (29 USCS

Section 481) may have affected the outcome of an

election,

the court shall declare the election, if any, to be void and

direct the conduct of a new election under supervision of

the Secretary and, so far as lawful and practicable, in con-

formity with the constitution and bylaws of the labor

organization. The Secretary shall promptly certify to the

court the names of the persons elected, and the court shall

thereupon enter a decree declaring such persons to be the

officers of the labor organization. If the proceeding is for

the removal of officers pursuant to subsection (h) of sec-

—

tion 401 (29 USCS Section 481(h)), the Secretary shall cer-

tify the results of the vote and the court shall enter a decree

declaring whether such persons have been removed as of-

ficers of the labor organization.

PERTINENT REGULATIONS

29 C.F.R. Section 452.62, promulgated by the Secretary of

Labor pursuant to 29 U.S.C. Section 481, provides:

‘*Disqualification of Candidates; Procedural Reasons.

A candidate who is otherwise eligible for office may not be

disqualified because of the failure of a union officer to per-

form his duties which are beyond the candidate’s control.

For example, the failure for a local recording secretary to

perform his duty to complete and forward a condidate’s

nomination certificate to the aistrict may not be used as the

basis for disqualifying the candidate.’’

29 C.F.R. Section 452.3, promulgated by the Secretary of

Labor and applicable to 29 U.S.C. Section 481, provides:

‘‘The interpretation consistently placed on a union’s

constitution by the responsible union official or governing

body will be accepted unless the interpretation is clearly

unreasonable.’’

FEDERAL RULES OF CIVIL PROCEDURE

Rule 56 of the Federal Rules of Civil Procedure provides:

Summary Judgment

(a) For Claimant. A party seeking to recover upon a

claim, counterclaim, or cross-claim or to obtain a

declaratory judgment may, at any time after the expiration

of 20 days from the commencement of the action or after

service of a motion for summary judgment by the adverse

party, move with or without supporting affidavits for a

summary judgment in his favor upon all or any part

thereof.

eh ck

(b) For Defending Party. A party against whom a claim,

counterclaim, or cross-claim is asserted or a declaratory

judgment is sought may, at any time, move with or without

supporting affidavits for a summary judgment in his favor

as to all or any part thereof.

(c) Motion and Proceedings Thereon. The motion shall

be served at least 10 days before the time fixed for the hear-

ing. The adverse party prior to the day of hearing may

serve opposing affidavits. The judgment sought shall be

rendered forthwith if the pleadings, depositions, answers

to interrogatories, and admissions on file, together with

the affidavits, if any, show that there is no genuine issue

as to any material fact and that the moving party is entitled

to a judgment as a matter of law. A summary judgment,

interlocutory in character, may be rendered on the issue of

liability alone although there is a genuine issue as to the

amount of damages.

(d) Case Not Fully Adjudicated on Motion. If on mo-

tion under this rule judgment is not rendered upon the

whole case or for all the relief asked and a trial is

necessary, the court at the hearing of the motion, by ex-

amining the pleadings and the evidence before it and by in-

terrogating counsel, shall if practicable ascertain what

material facts exist without substantial controversy and

what material facts are actually and in good faith con-

troverted. It shall thereupon make an order specifying the

facts that appear without substantial controversy, in-

cluding the extent to which the amount of damages or

other relief is not in controversy, and directing such fur-

ther proceedings in the action as are just. Upon the trial of

the action the facts so specified shall be deemed establish-

ed, and the trial shall be conducted accordingly.

(e) Form of Affidavits; Further Testimony; Defense

Required. Supporting and opposing affidavits shall be

made on personal knowledge, shall set forth such facts as

=

would be admissible in evidence, and shall show affir-

matively that the affiant is competent to testify to the mat-

ters stated therein. Sworn or certified copies of all papers

or parts thereof referred to in an affidavit shall be attached

thereto or served therewith. The court may permit af-

fidavits to be supplemented or opposed by depositions,

answers to interrogatories, or further affidavits. When a

motion for summary judgment is made and suported as

provided in this rule, an adverse party may not rest upon

the mere allegations or denials of his pleading, but his

response, by affidavits or as otherwise provided in this

rule, must set forth specific facts showing that there is a ge-

nuine issue for trial. If he does not so respond, summary

judgment, if appropriate, shall be entered against him.

(f) When Affidavits are Unavailable. Should it appear

from the affidavits of a party opposing the motion that he

cannot for reasons stated present by affidavit facts essen-

tial to justify his opposition, the court may refuse the ap-

plication for judgment or may order a continuance to per-

mit affidavits to be obtained or depositions to be taken or

discovery to be had or may make such other order as is

just.

(g) Affidavits Made in Bad Faith. Should it appear to

the satisfaction of the court at any time that any of the af-

fidaviis presented pursuant to this rule are presented in bad

faith or solely for the purpose of delay, the court shall for-

thwith order the party employing them to pay to the other

party the amount of the reasonable expenses which the fil-

ing of the affidavits caused him to incur, including

reasonable attorney’s fees, and any offending party or at-

torney may be adjudged guilty of contempt.

STATEMENT OF THE CASE

On July 14, 1978, the respondent, Ray Marshall, Secretary of

Labor, filed suit against Local Lodge No. 875, Brotherhood

Railway Carmen of the United States and Canada, AFL-CIO,

petitioner herein, in the United States District Court for the

Southern District of Mississippi. The Complaint alleged that

petitioner violated Section 401(e) of the Labor Management

Reporting and Disclosure Act of 1959, 29 U.S.C. Section

481(e), by denying R.W. Coffey, a member in good standing of

petitioner, the right to hold local elective office. The Complaint

prayed that petitioner be required to install Coffey as its Local

Chairman.

Petitioner, in due course, filed its first amended answer,

stating that Coffey was ineligible to hold office due to his failure

to satisfy a meeting attendance requiremeni authorized by Sec-

tion 40i(e), 29 U.S.C. Section 481(e), that the respondent’s

Complaint was not timely filed, that the prerequisites for the fil-

ing of the Complaint set forth in Section 482 had not been met,

and that the respondent and his agents acted impropertly and in

violation of the Act in the alleged investigation of this matter.

The following is a summary of the relevant facts. References

are to the Record on Appeal.

Petitioner held its election of local officers in December, 1977

(143). R. W. Coffey, a member of petitioner union in good

standing, was one of the nominees for the office of Chairman of

the Local Protective Board (Local Chairman) (73). Coffey

received a majority of the votes cast (73). Thereafter, a protest

of the election was filed with the International Union, with

which petitioner is affiliated, based upon Section 26 of peti-

tioner’s Constitution (73). Section 26 provided as follows:

*‘Any member who desires to be elected to any office

in his lodge, must have attended a majority of the meetings

of his lodge in the 12 months immediately preceding the

month of election unless unable to attend for just and suf-

ficient reasons. A member shall be required to advise the

Recording Secretary in a written statement justifying his

absence, and this is to be done in the current month; a ma-

—_

jority vote of the members in attendance to determine ac-

ceptance or rejection of the offerred excuse. A record of

attendance and excuses for absence to be kept by the local

lodge.’’ (49, 66, 76)

Petitioner held nine meetings during the twelve months im-

mediately preceding the election (75, 185). Thus, to qualify

under Section 26, a member must have attended five meetings,

unless unable to attend for just and sufficient reasons. Of the

nine meetings held, R. W. Coffey attended only one, the

November, 1977 meeting at which he was nominated for Local

Chairman (186). Coffey did not seek excuses for his non-

attendance at the other meetings for just and sufficient reasons.

The International’s initial response, dated January 31, 1978,

to the protest of the election (48, 59, 74), clearly set forth the in-

terpretation of Section 26 which was uniformly and consistently

employed in all situations involving Section 26. On February 7,

1978, the International having determined that a member who

qualified under Section 26 had been nominated for Local Chair-

man, ordered the qualified nominee, W. R. Dunaway, declared

the newly elected Local Chairman, thereby removing Coffey

(48, 60, 74). The International’s decision was in accordance with

the construction of Section 26 set forth in the letter of January

31, 1978, that if one qualified member is nominated for an of-

fice, no unqualified member may be elected to or hold that of-

fice. Dunaway had attended four meetings and sought excuses

for another two meetings for just and sufficient reasons

(185-186), totaling a majority of the meetings held.

Since the date of the election, Section 26 has been applied to

the other local offices involved in the election in like manner.

The International with which petitioner is affiliated ordered C.

T. McDaniel, who was a candidate nominated for Treasurer and

who was the only nominee for Treasurer qualified under Section

26, installed as treasurer. An unqualified nominee, T. J. Dicker-

son, who was initially installed as Treasurer, was removed (74,

186). Further, T. J. McEwen, who was a candidate nominated

for Trustee and who was the only nominee for Trustee qualified

under Section 26, was ordered installed as one of three trustees.

T. V. Taylor, Phil Price and G. H. Smith, who were initially in-

stalled as Trustees, but who were unqualified under Section 26

have been removed and new elections held for the remaining

two trustee positions (74, 186). F. W. Westbrook, who was ini-

tially installed as Secretary of the Local Protective Board, but

who was unqualified under Sect‘n 26, has been removed and

new elections held for Secretary. No qualified nominee had

been nominated for Secretary. (74, 186).

On February 22, 1978, a letter over the recording secretary’s

signature, purportedly on behalf of the membership of peti-

tioner, was mailed to O. W. Jacobson, General President of the

International Brotherhood Railway Carmen of the United

States and Canada, protesting the removal of Coffey (48, 60,

74).

By letter dated February 27, 1978 the International President

denied the protest of February 22, 1978, and advised of the right

of appeal from his decision (48, 62, 74-75). By letter of April 10,

1978, over the signature of the Recording Secretary and Presi-

dent of petitioner, again purportedly on behalf of the member-

ship of petitioner, the International President’s decision was ap-

pealed to the International General Executive Board (49, 63,

75). By letter dated May 3, 1978, the General Executive Board

denied the appeal (49, 64, 75). By letter dated May 3, 1978, the

International President advised Coffey that the General Ex-

ecutive Board decision could be appealed to the International

Convention, commencing July 31, 1978 (35, 105).

Coffey, declining to exhaust the remedies available within the

union, did not appeal to the International convention but in-

stead filed a complaint with the respondent Secretary of Labor.

Respondent alleges that this complaint was filed May 15, 1978

(2-3, 178), which was less than three months after the letter of

February 22, 1978, which protested the decision to remove Cof-

="

fey. It should be noted that respondent has consistently main-

tained that the protest within the union was from the decision to

remove Coffey dated February 7, 1978 and not from the elec-

tion itself (174, 178).

It should further be noted that Coffey’s complaint to the

Secretary of Labor was dated May 11, 1978 (42, 112). The

respondent alleged that it was received by the Department of

Labor on May 15, 1978 (3, 178). The only indiction on the com-

plaint of the date of its receipt is a handwritten notation by

Department of Labor Compliance Officer Sutton (46, 116). All

other correspondence produced by respondent which was sent

to the Department of Labor shows the time and date of receipt

by a Department of Labor ink stamp (119, 129, 132, 133). In

answers to interrogatories, respondent stated that Sutton had

contacted Coffey on May 11, 1978 (97). Respondent’s com-

plaint in this action was filed on July 14, 1978, precisely 60 days

after May 15, 1978, the date Coffey’s complaint to respondent

was allegedly filed. Respondent’s complaint was, therefore,

filed more than 60 days after May 11, 1978.

Respondent alleged in his Complaint and his Motion for

Summary Judgment that it duly investigated Coffey’s complaint

to the Secretary, allegedly filed on May 15, 1978 (179). Yet, in

Answers to Interrogatories, respondent stated that his investiga-

tion wus complete prior to May 15, 1978 and that no in-

vestigatory activities whatsoever took place after May 15, 1978

(173).

Respondent filed his Motion for Summary Judgment in the

District Court on August 22, 1980. It was argued to the Court

on August 31, 1979. At that time, petitioner’s discovery was

incomplete.

Petitioner had filed interrogatories (80) and requests for pro-

duction (87) in this cause. Respondent objected to or failed to

fully respond to a number of the interrogatories and requests

for production (167). A Motion to Compel (149) was argued to

~~.

the Magistrate who compelled discovery as to some items and

denied it as to others (165). Petitioner filed a timely application

for Review of the Magistrate’s decision (167). By agreement be-

tween counsel for respondent and petitioner, the depositions of

compliance officers Sutton and Lamont Kent were deferred un-

til after the ruling on the Application for Review (182, 195). All

of the foregoing discovery matters related to petitioner’s con-

tentions concerning the date of the filing of Coffey’s complaint

with the Secretary of Labor and to petitioner’s allegations that

the investigation was conducted contrary to law (182-183, 195).

The District Court nevertheless granted summary judgment

on September 4, 1979.

The District Court had not ruled on the Application for

Review at the time it granted respondent’s Motion for Summary

Judgment (182, 195). Petitioner, in affidavits in opposition to

the Motion for Summary Judgment, set forth the foregoing and

stated its desire and intention to complete its discovery. The

District Court granted Summary Judgment without ruling on

the Application for Review or permitting petitioner to complete

its discovery. The judgment ordered petitioner to install Coffey

as Local Chairman forthwith (189).

Thereafter, petitioner perfected an appeal to the United

States Court of Appeals for the Fifth Circuit which affirmed the

judgment per curiam, without opinion, on July 15, 1980.

—

REASONS FOR GRANTING THE WRIT

Argument

I. The Union Member’s Complaint To The Secretary Of

Labor In The Instant Case Was Prematurely Filed And Was

Therefore Not In Compliance With 29 U.S.C. Section 482. Ac-

cordingly, Respondent Could Not Properly Bring Suit Based

Upon The Complaint. In Ruling In Favor Of Respondent The

Courts Below Improperly Disregarded Clear Congressional

Directives As Embodied In 29 USC Section 482.

Section 402(a) of the Labor-Management Reporting and

Disclosure Act of 1959, 29 U.S.C. Section 482(a), provides as

follows:

“‘(a) A member of a labor organization - (1) who has ex-

hausted the remedies available under the constitution and

bylaws of such organization and of any parent body, or (2)

who has invoked such available remedies without obtain-

ing a final decision within three calendar months after their

invocation, may file a complaint with the Secretary within

one calendar month thereafter alleging the violation of any

provision of section 481 of this title (including violation of

the constitution and bylaws of the labor organization per-

taining to the election and removal of officers). The

challenged election shall be presumed valid pending a final

decision thereon (as hereinafter provided) and in the in-

terim the affairs of the organization shall be conducted by

the officers elected or in such other manner as its constitu-

tion and bylaws may provide.”’

The procedure set forth in Section 482(a) is the exclusive

means by which alleged violations of Section 481 (as alleged in

the instant case) may be remedied. Calhoon v. Harvey, 379 U.S.

134, 85 S.Ct. 292, 13 L.Ed.2d 190 (1964).

—

A complaint filed with the Secretary of Labor in accordance

with Section 482(a) is a mandatory prerequisite to the institution

of an action by the Secretary of Labor. E.g., Hodgson v. United

Steelworkers of America, 459 F.2d 348 (3rd Cir. 1972). In that

case, the court stated that unless the complaining union member

files his complaint with the Secretary of Labor during the month

following exhaustion of internal union remedies, any action fil-

ed in the District Court must be dismissed. 459 F.2d at 350.

The requirement of a timely complaint by a union member

may be satisfied in either way set forth by the statute. He may

file a complaint within one month of the exhaustion of internal

union remedies or, if a final decision has not been rendered

within three calendar months of the invocation of union

remedies, he may file a complaint within one month thereafter.

The purpose of these requirements with respect to exhaustion

of internal remedies was stated as follows in Schultz v. Local

1291, International Longshoreman’s Association, 429 F.2d 592,

595-596 (3rd Cir. 1970):

“The two alternative provisions of Section 402(a)

illustrate the distinction between requirements of exhaus-

tion and invocation of remedies. The first alternative is one

of direct exhaustion of the remedies available under the

union’s constitution and bylaws. The second alternative,

however, requires only the invocation of available

remedies and authorizes resort to the Secretary of Labor,

regardless of exhaustion, if the remedies invoked have not

yielded a final decision within three calendar months.

Both requirements are intended to afford the union an

opportunity to hear the complaint of its member and to

redress his grievance before he may resort to governmental

intervention. Wirtz v. Local 153, Glass Bottle Blowers

Ass’n, 389 U.S. 463, 472, 88 S.Ct. 643 (1968); Wirtz v.

Local Union No. 125, Int’l, etc. Laborers’ Union of N.

Amer., 389 U.S. 477, 484, 88 S.Ct. 639, 19 L.Ed.2d 716

(1968). The statute thus fosters union self-government and

seeks to ‘accustom members to utilizing remedies available

within their own organizations.’ Wirtz v. Local Union No.

125, Int’l, etc. Laborers’ Union of N. Amer., 389 U.S. at

484, 88 S.Ct. at 642. The preliminary resort to union

remedies has the additional advantage of sharpening issues

before they reach the courts. Detroy v. American Guild of

Variety Artists, 286 F.2d 75, 79 (2 Cir.) cert. denied 366

U.S. 929, 81 S.Ct. 1650, 6 L.Ed.2d 388 (1961). Congress

has thus afforded unions an opportunity for the intra-

union disposition of the grievances of members before they

can invoke the aid of the Secretary of Labor, and through

him the process of the courts.”’

In the instant case, it is clear that neither alternative was

satisfied.

The respondent has consistently maintained that Coffey’s

alleged internal appeal was from the decision to install Dunaway

as Local Chairman (178). That decision was made by letter

dated February 7, 1978 (48, 59, 74). Thereafter, the very first

communication which could possibly be construed as an appeal

by Coffey of the decision to install Dunaway was the letter of

February 22, 1978, (48, 60-61, 74-75) over the signature of the

recording secretary, purportedly on behaif of the local. If it is

assumed, arguendo, that the letter of February 22, 1978, was an

appeal by Coffey, three calendar months would not have passed

until May 22, 1978. Respondent has alleged that Coffey’s com-

plaint with the Secretary of Labor was filed on May 15, 1978 (3,

178). This allegation must be taken as admitted by the respon-

dent for purposes of summary judgment.

It is therefore apparent that Coffey filed his written com-

plaint with the Secretary of Labor prior to the expiration of

three months after his initial appeal of the decision to install

Dunaway. Nor has respondent made any allegation that Coffey

had fully exhausted available remedies. He clearly had not and

ow £6

was advised of further procedures available by General Presi-

dent Jacobson by letter dated May 3, 1973 (35, 105). In short,

Coffey’s complaint was clearly premature and was not in com-

pliance with either Section 482(a) (1) or Section 482(a) (2).

Respondent alleged in his complaint that Coffey protested his

removal and the installation of Dunaway by letter over the

signature of the recording secretary, dated January 16, 1978.

However, this assertion is clearly fallacious. The decision

allegedly appealed was not made until February 7, 1978 (48, 60,

74). It is a contradiction in terms to state that a decision may be

appealed before it has been made.

Respondent’s position that the three month period is to be

measured from the letter allegedly sent on behalf of petitioner to

the International President before the decision to install

Dunaway and remove Coffey was made is flatly at variance with

the position he has taken, and which has been adopted by the

courts, in other cases. For instance, in Wirtz v. H.H. Guy

Lodge No. 872, Brotherhood of Railroad Trainmen, 279

F.Supp. 873 (W.D. Pa. 1967), the Secretary challenged the con-

duct of an election. The complaining union member, apparently

anticipating that a violation would occur, filed a pre-election

protest. The union in that case argued that the initial invocation

of internal appeals was the pre-election protest. The Secretary,

complaining of the conduct of the election, maintained that the

initial invocation of internal procedures was the post-election

appeal. The court agreed that the protest filed before the

challenged election was not to be considered in determining

whether the union member had met the requirements of Section

482(a) and held that the pre-election, and hence, pre-violation

protest, was of no significance. In other cases in which a viola-

tion was alleged with respect to the conduct of the election only

post-election, post-violation protests have been considered in

determining compliance with 29 U.S.C. Section 482(a) and

previolation protests have been disregarded. E.g., Wirtz v. In-

dependent Petroleum Workers, 307 F.Supp. 462 (N.D. Ind.

1969).

~

Since the record clearly disclosed that the mandatory require-

ment of a properly filed complaint by a union member was not

met in the instant case, this action should ultimately have been

dismissed in accordance with petitioner’s affirmative defense

that Coffey’s complaint was prematurely filed, contained in

paragraph V of its first amended answer (145). Hodgson v.

United Steelworkers of America, 459 F.2d 348, 350 (3rd Cir.

1972).

The failure of the courts below to properly deal with the issue

points up an important reason why this case should be reviewed

and reversed by this Court. In litigation under 29 U.S.C. Sec-

tions 481 and 482, the Secretary of Labor, with the assistance of

the lower federal courts, has assumed a ‘‘Heads I win, tails you

lose’’ posture with respect to compliance with the precedural re-

quirements of 29 U.S.C. Section 482. Thus, if a union member

protests a threatened violation of the Act to the union before it

occurs and later files a second protest after the alleged violation

the Secretary of Labor will, in one case, contend that the three

months run from the second protest, the post-violation protest.

However, in a second case, such as the instant case, the

Secretary contends that the three months run from the pre-

violation letter rather than from the first appeal filed after the

alleged violation. Although the two positions are diametrically

opposed, they have one factor in common. In each case, the

Secretary arbitrarily selects a date which will make it appear that

there has been compliance with Section 482. In fact, the posture

of the Secretary indicates a flagrant disregard of Section 482,

and because of the lack of guidance from this Court, the

Secretary has been successful in getting the lower courts to ac-

cept these tortured and inconsistent interpretations of the

Act. The intent of Congress that intervention by the Secretary

occur only after a full chance to resolve disputes internally, em-

bodied in Section 482, is being ignored. In fact, as evidenced by

this case, the Secretary of Labor is involved in these matters

long before it is proper under the Statute. The Secretary in the

= ee

instant case admitted his investigation was complete before Cof-

fey’s complaint to the Secretary was filed.

This Court cannot continue to permit the Secretary to ignore

Section 482. This Court should provide clear guidance to the

Secretary, the unions and the Courts to settle the proper ap-

plication of this Section. To do otherwise will permit the

Secretary to continue to administer this Statute in a fashion

which, as to petitioner and other labor organizations, is ar-

bitiary and capricious.

It, The Judgment Entered By The District Court Was Er-

roneous As A Matter Of Law Because The Cuurt Entered Judg-

ment Without Even Ruling On Relevant And Material

Discovery Motions And Without Permitting Completion Of

Discovery Which Had Been Agreed To Between The Parties.

The discovery matters involved with respect to this question

relate to a defense set forth by petitioner in its amended answer.

The facts concerning this defense and the actions of the District

Court in this regard are as follows.

Section 402(b) of the Act, 29 U.S.C. Section 482(b), provides

that upon receipt of a complaint by a union member, the

Secretary of Labor shall investigate the complaint, and if he

finds probable cause to believe that the Act has been violated

and that the violation has not been remedied, he ‘‘shall’’ bring

his civil action within 60 days after the filing of the union

member’s complaint.

Respondent’s civil action was filed on July 14, 1978 (1). The

complaint alleged that Coffey’s complaint to the Secretary of

Labor was filed on May 15, 1978. If that be so, the respondent’s

civil action was filed on the sixtieth day, the very last day possi-

ble. However, petitioner denies that Coffey’s complaint was fil-

ed May 15, 1978 and contends that it was in fact filed prior to

that time (182).

— 19 —

If Coffey’s complaint was filed prior to May 15, 1978, as peti-

tioner contends, respondent’s civil action was not timely filed,

and should be dismissed. This affirmative defense was set forth

in paragraph IV of petitioner’s first amended answer (144-145).

Coffey’s complaint to the Secretary of Labor was dated May

11, 1978, and was addressed to the Secretary of Labor,

Washington D.C. (42). The only notation on Coffey’s com-

plaint indicating the date of filing is a handwritten notation by

compliance officer Sutton indicating receipt on May 15, 1978, at

the Department of Labor in Memphis, Tennessee (46). Each

and every other piece of correspondence in the record which was

directed to the Department of Labor bears a Department of

Labor stamp, indicating the date and location of its receipt. (See

119, 129, 132, 133). Further, in answer to interrogatories,

respondent states that compliance officer Sutton contacted Cof-

fey on May 11, 1978 (97). These facts were also set forth in peti-

tioner’s affidavits in opposition to the Motion for Summary

Judgment (182). The affidavits further set forth the petitioner’s

desire to obtain compliance officer Sutton’s deposition (182).

Based upon the foregoing, it is obvious that Coffey’s complaint

was never mailed, but instead was hand-delivered to Sutton on

May 11, 1978 and that Sutton simply wrote in the date of May

15. If the complaint had been mailed to Washington, where it

was addressed, it obviously would not have been hand receipted

by compliance officer Sutton in Memphis, Tennessee. This issue

is underscored by respondent’s admission that his investigation

was fully completed prior to May 15, 1978 (173).

The date of the receipt of the complaint by an officer or agent

of the Department of Labor, rather than of its arrival at any

particular office, is the date of its filing under Section 482(a).

Wirtz v. Local 165, International Hod Carriers, 246 F.Supp.

741, 750 (D. Nev. 1965); Schultz v. United Steelworkers, 319

F.Supp. 1172, 1175 (W.D. Pa. 1970).

The 60 day time limit contained in Section 482(b) has not

been held to be jurisdictional but rather is considered as

—

analgous to a statute of limitations. Thus, equitable considera-

tions or principles of waiver may be held to toll the ‘‘otherwise

mandatory bar’’ created by the 60 day time limit on the filing of

an action by the Secretary. Hodgson v. International Printing

Pressmen, 440 F.2d 1113, 1115 (6th Cir.), cert. den., 404 U.S.

828, 92 S.Ct. 63 (1971).

In the instant case, however, no allegation was or has been

made by respondent of any such equitable consideration. Thus,

if, as petitioner contends, Coffey’s complaint was filed prior to

May 15, 1978, the respondent’s action is clearly time barred.

As set forth above, the District Court entered summary judg-

ment without ruling upon respondent’s Application for Review

seeking to compel discovery and without permitting respondent

- to obtain the depositions of compliance officers Sutton and

Kent. Obviously, the deposition of Sutton was of extreme im-

portance to petitioner’s contentions concerning the timeless of

respondent’s complaint in the District Court.

The Application for Review sought to compel respondent to

answer certain interrogatories filed on February 21, 1979 (80)

and to produce documents requested by petitioner on February

21, 1979 (87). On May 1, 1979, respondent filed numerous ob-

jections to various of petitioner’s discovery requests (92). Peti-

tioner promptly filed a Motion to Compel answers and produc-

tion on May 15, 1979 (149). The Motion to Compel was

presented to the Magistrate, as required by local rules, on May

31, 1979. The Magistrate entered an order on May 31, 1979 de-

nying the Motion to compel in part, and sustaining it in part

(165-166). Petitioner promptly filed its Application for Review

of that portion of the order denying production with the District

Court on June 7, 1979 (167). By agreement between counsel for

respondent and petitioner, the deposition of compliance of-

ficers Sutton and Kent which had previously been noticed by

petitioner (159, 161), were to be deferred until the District Court

ruled on petitioner’s Application for Review (182). While peti-

—21—

tioner’s Application for Review was under submission, respon-

dent filed his Motion for Summary Judgment on August 22,

1979 (176). The District Court ruled on respondent’s Motion for

Summary Judgment on September 4, 1979 (189), only 13 days

after it’s filing. By contrast, petitioner’s Application for

Review, which the Court, under local rules, was to decide on the

papers without oral argument, had been pending for almost

three months when the Court granted summary judgment. Peti-

tioner’s Application for Review was never acted on by the

Court.

Rule 56(f) of the Federal Rules of Civil Procedure provides:

“*(f) When Affidavits are Unavailable. Should it appear

from the affidavits of a party opposing the motion that he

cannot for reasons stated present by affidavit facts essen-

tial to justify his opposition, the court may refuse the ap-

plication for judgment or may order a continuance to per-

mit affidavits to be obtained or depositions to be taken or

discovery to be had or may make such other order as is

just.”’

It is clearly improper to grant summary judgment when the

facts are not fully developed. In Palmer v. Chamberlin, 191

F.2d 532, 540 (Sth Cir. 1951), the Court stated:

““However, before rendering judgment the Court must

be satisfied not only that there is no issue as to any material

fact, but also that the moving party is entitled to a judg-

ment as a matter of law. Where as in this case, the decision

of a question of law by the Court depends upon an inquiry

into the surrounding facts and circumstances, the Court

should refuse to grant a motion for summary judgment un-

til the facts and circumstances have been sufficiently

developed to enable the Court to be reasonably certain that

it is making a correct determination of the question of

law.”’

cov OE ce

See also N.L.R.B. v. Smith Industries, Inc., 403 F.2d 889, 893

(Sth Cir. 1968); Reeves v. City of Jackson, 532 F.2d 491, 494

(Sth Cir. 1976).

It is evident that the deposition of Sutton was important

because the details concerning the receipt of Coffey’s complaint

and the method of recording its receipt are peculiary within the

knowledge of Sutton and the Department of Labor. This cir-

cumstance, in and of itself, indicates the impropriety of gran-

ting summary judgment to respondent without allowing peti-

tioner to complete planned discovery of such facts, peculiarly

within the knowledge of the government. E.g., Slagle v. United

States, 228 F.2d 673, 678 (Sth Cir. 1956); Loew’s Inc. v. Bays,

209 F.2d 610, 615 (Sth Cir. 1954).

The answer of the respondent to this in the Court below was

that petitioner had made a serious charge against a governmen-

tal offical, and respondent argued, it was not been proven. The

foregoing indicates, however, that a substantial issue exists and

the deposition of Sutton is essential to its proper resolution. The

rejoinder to respondent’s argument is found in Parrish v. Board

of Commissioners of Alabama State Bar, 533 F.2d 942, 947 (Sth

Cir. 1976):

“*In effect, the argument of appellees amounts to a con-

tention that a mere denial of improper conduct by the party

against whom discovery is sought is adequate to support a

refusal to compel discovery, unless the opposing party is

able to counter such denial by specific affidavit. Such a

rule would frustrate the discovery process and tend to erect

an unreasonably protective shield around parties possess-

ing material relevant and necessary to fair litigation.’’

The Court went on to hold that grant of summary judgment

without permitting a completion of discovery was erroneous. In

that case, as in the instant case, the district court had totally failed

to exercise his discretion in ruling on a motion to compel

discovery. Summary judgment was entered with no ruling having

ae

been made on the discovery motion. See also Morrison Flying Ser-

vice v. Deming National Bank, 340 F.2d 430 (10th Cir. 1965).

In the instant case, it is conceded by respondent that the deposi-

tions of Sutton and Kent were to be taken after the court’s ruling

on the Application for Review by agreement of counsel for both

parties. Thus, even if the district court denied petitioner’s Applica-

tion for Review, petitioner clearly should have been permitted to

proceed with the depositions of the complainace officers before

the motion for summary judgment was ruled. The court’s action in

ruling on the motion for summary judgment before ruling the Ap-

plication for Review and permitting the taking of the depositions

was clear error. Rule 56(f), Federal Rules of Civil Procedure.

III. Petitioner Properly And Uniformly Applied It’s Meeting

Attendance Rule, As Permitted By The Labor-Management

Reporting And Disclosure Act. In So Doing, It In No Manner

Violated The Act.

Respondent contended in the Courts below that the facts

establish that the Act was violated when Dunaway was installed

in office, and Coffey thereby removed, and that this alleged

violation affected the outcome of the election. However, ex-

amination of the relevant facts omitted from respondent’s mo-

tion, and contained in petitioner’s affidavits in opposition, as

well as the relevant regulations and cases, demonstrates that W.

R. Dunaway was quite properly declared the newly elected

Local Chairman of Lodge 875.

The substantive issues in this case clearly revolve around the

question of the eligibility of both R. W. Coffey and W. R.

Dunaway for the office of Local Chairman of Lodge 875 under

the terms of the subordinate Lodge Constitution which governs

the affairs of Lodge 875. Both R. W. Coffey and W. R.

Dunaway were nominated for the office of Local Chairman of

Lodge 875 at the meeting of the Lodge held in November, 1977.

The elections took place in December, 1977, and Coffey received

a majority of the votes.

oo a

Thereafter, a protest was filed by Dunaway to the Interna-

tional Brotherhood Railway Carmen of the United States and

Canada based upon Section 26 of the Subordinate Lodge Con-

sistution. Section 26 provides as follows:

‘‘Any member who desires to be elected to any office in

his lodge, must have attended a majority of the meetings of

nis lodge within the twelve months immediately preceding

the month of election unless unable to attend for just and

sufficient reasons. A member shall be required to advise

the recording secretary in a written statement justifying his

absence, and this is to be done in the current month; a ma-

jority vote of the members in attendance ... to determine

acceptance or rejection of the offered excuse.”’

It should be noted at this point that 29 U.S.C. Section 481(e),

the alleged basis of respondent’s action, specifically premits im-

position of qualifications for eligibility to run for or hold union

office.

Local Lodge No. 875 held nine meetings during the twelve

months immediately preceding the election. Of these meetings,

R. ‘WV. Coffey attended only one. That was the meeting at which

he was nominated for the office of Local Chairman. R. W. Cof-

fey made no attempt whatsoever to obtain excuses for any of his

absences. Therefore, it is clear and undisputed that R. W. Cof-

fey was not qualified to run for or be elected to the office of

Local Chairman under the provisions of Section 26.

Accordingly, the International ultimately ordered that W. R.

Dunaway, a qualified candidate, be declared the newly elected

Local Chairman of Lodge 875, thereby removing Coffey, the

unqualified candidate. The petitioner submits that this action

was entirely proper, and was consistent with both the constitu-

tion of the Brotherhood Railway Carmen and with the Labor

Management Reporting and Disclosure Act. Respondent, on

the other hand, argues that Dunaway was not qualified under

Section 26 either and that Coffey should have been left in

office.

The affidavits submitted in the court below clearly indicate

that W. R. Dunaway attended four of the nine meetings of

Lodge 875 held during the twelve months immediately preceding

the election and was absent from two others for just and suffi-

cient reasons as provided for in Section 26, which together total

more than a majority of the meetings held. W. R. Dunaway

sought to obtain excuses for his non-attendance at the meetings

of April and June, 1977. In each case, W. R. Dunaway prepared

a written statement justifying his anticipated absence in advance

of the meeting in question (185-187). He then delivered the writ-

ten statement to J. M. Hamilton, President of Local Lodge No.

875, prior to each meeting in question (185-187). Local Presi-

dent Hamilton, in the good faith mistaken belief that he had the

authority to approve the excuses as President of the Local

Lodge, did not present the written statements to the recording

secretary or to the lodge for a vote of membership at the

meetings in question (185-187). Rather, Local President

Hamilton prepared written notes, over his signature, addressed

to W. R. Dunaway in which he advised Dunaway that he had

been excused from attendance at each meeting in question

(185-187). W. R. Dunaway, since he had turned the written

statements over to Local President Hamilton for handling, and

since he was not present at the meetings in question, could have

properly assumed that the written statements of excuse had been

handled in accordance with the provisions of the Constitution.

Thus, in ruling upon the question of the respective qualifica-

tions of Dunaway and Coffey, the International considered the

fact that W. R. Dunaway had done all which could reasonably

be expected of him in order to comply with the provision of Sec-

tion 26 ot the Subordinate Lodge Constitution. Any defects

which may be alleged with respect to the handling of the excuses

are attributable solely to Local President Hamilton’s good faith

belief that he had the authority to approve the excuses himself

and his failure to handle the same with the membership of the

ee

Lodge. Thus, the International found W. R. Dunaway to be

qualified within the meaning of Section 26 of the Subordinate

Lodge Constitution and found W. R. Coffey unqualified. Cof-

fey had made no attempt whatsoever to seek any excuses for

non-attendance at meetings. In accordance with the interpreta-

tion consistently given to Section 26 by the International, the In-

ternational ordered that W. R. Dunaway be declared the newly

elected Local Chairman of Lodge 875 in that he was the only

qualified candidate nominated for that office. The only other

candidate nominated, R. W. Coffey, was not so qualified.

Under the International’s consistent interpretation if even one

qualified member is nominated to an office, no unqualified

member may be nominated or elected.

With the foregoing in mind, the court’s attention is invited to

the following pertinent regulations promulgated by the

Secretary of Labor relevant to the instant dispute. 29 CFR Sec-

tion 452.3, specifically pertaining to the regulation of elections

under the Labor Management Reporting and Disclosure Act,

provides as follows:

‘The interpretation consistently placed on a union’s

constitution by the responsible union official or governing

body will be accepted unless the interpretation is clearly

unreasonable.”’

In Brennan v. Employees Independent Association, Penn-

sylvania Power and Light Company, 381 F. Supp. 23 (M.D. Pa.

1974), an action under 29 USC Section 481, the same statute

which forms the basis of the current action, the court refused to

interfere with the union’s interpretation of its own constitution,

and accordingly denied the Secretary of Labor’s motion for

summary judgment and granted the union’s motion for sum-

mary judgment of dismissal. In that case, the court stated:

**Plaintiff concedes that the standard utilized in judicial

review of an interpretation given by a union to its constitu-

tion is that an interpretation will be accepted unless that in-

— 27 —

terpretation is clearly unreasonable. 29 CFR 452.3 English

v. Cunningham, 108 U.S. App. D.C. 365, 282 F.2d 848

(1960); Schonfeld v. Raftery, 359 F. Supp. 380 (S.D.N.Y.

1973). In Gurton v. Arons, 339 F.2d 371, 375 (2nd Cir.

1964), the court stated: ‘The provisions of the LMRDA

were not intended by Congress to constitute an invitation

to the courts to intervene at will in the internal affairs of

unions. Courts have no special expertise in the operation

of unions which would justify a broad power to interfere.

The internal operations of unions are to be left to the of-

ficials chosen by the members to manage those operations

except in the very limited instances expressly provided by

the act.’’’

With regard to the reasonableness of the interpretation of

Section 26 at issue in the instant case, the court’s attention is in-

vited to 29 CFR Section 452.62, another regulation promulgated

by the Secretary of Labor pertaining to elections:

**Disqualification of Candidates; Procedural Reasons.

A candidate who is otherwise eligible for office may not be

disqualified because of the failure of a union officer to per-

form his duties which are beyond the candidate’s control.

For example, the failure for a local recording secretary to

perform his duty to complete and forward a candidate’s

nomination certificate to the district may not be used as th

basis for disqualifying the candidate.’’

Parallel reasoning clearly went into the decision to rule W. R.

Dunaway qualified. The decision was in accord with the pro-

position that a candidate should not be penalized for the failure

of an officer to follow through in the proper handling of a mat-

ter, in this instance, the handling of the written statements of

excuses which were given to Local President Hamilton by W. R.

Dunaway. This is understood by the fact that one of the

absences for which W. R. Dunaway sought an excuse was

necessitated by attendance at a union Executive Board meeting

which was required of him in the course of his duties as an of-

ficer. Such a reason for absence from a local Lodge meeting is

unquestionably just and sufficient within the meaning of Sec-

tion 26 of the Subordinate Lodge Constitution. Further, W. R.

Dunaway’s whereabouts on that particular occasion were well

known to the members of the local lodge. Under these cir-

cumstances, the interpretation of Section 26 by the Interna-

tional is not only reasonable, but is fully consistent with the

spirit of the regulations pertaining to eligibility for office pro-

mulgated by the Secretary of Labor himself. Significantly, the

record contains no evidence whatsoever pertaining to the reason

for Coffey’s much more numerous absences from Local Lodge

meetings. It is undisputed that Coffey attended only one

meeting during the twelve months immediately preceding the

election. Under these circumstances, it must be presumed that

Coffey’s absence from all of the other meetings was not due to a

just or sufficient reason within the meaning of Section 26.

The Secretary of Labor seeks to avoid the force of the fore-

going by contending that a motion was passed in the nomina-

tion meeting of November, 1977 that all members in good stan-

ding would be permitted to be nominated for and elected to of-

fice. That assertion is completely baseless and false. As shown

in the affidavits of Local President Hamilton. No such motion

was proposed or passed at the meeting of November, 1977. Fur-

ther, there is absolutely no record of the passage of any such

motion. Respondent’s content.on in the courts below, that a

“‘practice’’ existed of permitting members to run in good stan-

ding notwithstanding Section 26, is also refuted by the affidavit

of Local President Hamilton which directly states that no such

practice existed in Lodge 875 at the time of these elections and

that Section 26 and all other provisions of the Subordinate

Lodge Constitution are and always have been fully applicable to

the business and affairs of Local Lodge 875.

oa a

Thus, W. R. Dunaway was properly installed as the newly

elected Local Chairman of Local Lodge 875 as a result of a

reasonable interpretation of the provisions of Section 26 of the

Subordinate Lodge constitution. That determination should not

have been interfered with by the courts below.

CONCLUSION

For all of the foregoing reasons, and upon the aforecited

authorities, this Petition of a Writ of Certiorari should be

granted.

Respectfully submitted,

C. MARSHALL FRIEDMAN

NEWTON G. McCOY

FRIEDMAN WEITZMAN

& FRIEDMAN, P.C.

The Advocate Building

1133 Pine Street

St. Louis, Missouri 63101

(314) 621-2200

Counsel for Petitioner Local

Lodge No. 875, Brotherhood

Railway Carmen of the

United States and Canada,

ALF-CIO

APPENDIX

—

APPENDIX A

In the United States Court of Appeals

For the Fifth Circuit

No. 79-3211

Summary Calendar*

Ray Marshall, Secretary of Labor,

United States Department of Labor,

Plaintiff-Appellee,

v.

Local Lodge No. 875, Brotherhood Railway Carmen of the

United States and Canada, AFL-CIO,

Defendant-Appellant.

Appeal from the United States District Court for the

Southern District of Mississippi

(July 15, 1980)

Before GEE, HENDERSON and HATCHETT, Circuit Judges.

PER CURIAM: AFFIRMED. See Local Rule 21.'

* Fed. R. App. P. 34(a); Sth Cir. R. 18.

' See N.L.R.B. v. Amalgamated Clothing Workers of America, 5

Cir. 1970, 430 F.2d 966.

eX

APPENDIX B

in the United States Court of Appeals

For the Fifth Circuit

No. 79-3211

Ray Marshall, Secretary of Labor,

United States Department of Labor

Plaintiff-Appellee,

v.

Local Lodge No. 875, Brotherhood Railway Carmen of the

United and Candada, AFL-CIO,

Defendant-Appellant.

Appeal from the United States District Court for the

Southern District of Mississippi

ON PETITION FOR REHEARING

(Septemer 11, 1980)

Before GEE, HENDERSON, HATCHETT, Circuit Judges

PER CURIAM:

IT IS ORDERED that the petition for rehearing filed in the

above entitled and numbered cause be and the same is hereby

denied.

Entered for the Court:

United States Circuit Judge

— < pon

APPENDIX C

In the United States District Court

For the Southern District of Mississippi

Jackson Division

Civil Action No. J78-0309(C)

Ray Marshall, Secretary of Labor,

United States Department of Labor

Plaintiff,

Vv.

Local Lodge No. 875, Brotherhood of Railway Carmen

of the United States and Canada, AFL-CIO

Defendant.

SUMMARY JUDGMENT

(Filed September 4, 1979)

This cause came on to be heard on August 31, 1979, on plain-

tiff’s motion for summary judgment, and the Court being fully

advised in the premises finds that plaintiff’s motion for sum-

mary judgment should be and it is hereby granted.

Defendant is hereby ORDERED to remove W. R. Dunaway

from the office of Chairman, Local Protective Board, and to in-

stall R. W. Coffey in that office forthwith, Coffey having been

elected to tht office in the election held in December, 1977, for a

term of three years beginning January, 1978. There should be

no further delay in installing Coffey.

Let each party bear its own costs. The Clerk may close the

Court file.

ORDERED AND ADJUDGED this 4th day of September,

1979.

William Harold Cox

United States District Judge