Appendix — Local Union No. 705, Hotel & Restaurant Employees & Bartenders Union v. Wirtz

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APPENDIX A :

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No. 17920

UNITED STATES COURT OF APPEALS

For the Sixth —_— .

W. Willard Wirtz, Sinus of } ;

Labor, . Appeal from the

Plaintif-Appeliont, - United States Dis-.

trict Court for the

-- Local Union N m4 "705, Hotel andf astern District of

Restaurant Employees and Bar- Michigan, Southern

tenders Union, AFL-CIO, Division.

Defendant-Appellee. | |

Decided February 14, 1968.

OPINION |

Filed February 14, 1968

Before Weick, Chief Judge, and Phillips and Celebreaze,

- Cireuit Judges.

Phillips, Circuit Judge. The Secretary of Labor filed a |

complaint to set aside a union election on the ground that

qualification standards of candidates for office had not been

enforced with uniformity. The action .was initiated under

Title IV, §402, of the Labor Management Reporting and

Disclosure Act of 1959, 29 U.S.C. §482. The purpose of

Title IV is “to insure free and democratic union elections.”

Wirtz v. Local Union 125, Laborers’ International Union,

— US. —, 36 U.S.L.W. 4118, 4119 (No. 58 Jan. 15, 1968).

—

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14 aN

The election was conducted July 20, 1965. Myra Wolf-

gang was secretary-treasurer of the local union. Godfrey

‘Franklin undertook to qualify as a candidate for vice presi-

‘dent in opposition to an incumbent*favored by Wolfgang.

In order to qualify as a candidate, a member must have

been in continuous good standing for twenty-four. months

‘prior-to his nomination. The union by-laws provide that

_a-member who is more than two months in arrears in pay-

ment ‘of dues will be automatically suspended: The election

committee of the local union advised Franklin that he did.

not qualify as a candidate because he had been-more than

two months in arrears.

=o Franklin thereupon sent a telegram to the election, com-

mittee; eare of Myra Wolfgang, dated June 15, 1965, pro-

testing the decision that he was ineligible to run for office

because not in continuous good standing. The election com-

mittee replied by informing Franklin “that he had a right

of appeal to the General President of the International

Union. —

On June 22, 1965, Franklin directed an. appeal to the

General President of the International Union. The appeal

is attached as an appendix to this opinion.

Myra Wolfgang wrote a detailed letter to the Interna-

tional President contending that Franklin was ineligible

to be a candidate because he had been in arrears in pay-

_ inent of dues for two calendar months.

Franklin’s protest was overruled by the President of the .

International Union on July 9, 1965. He thereupon ap-

pealed to the General Executive Board of the International

Union’ and: this appeal was denied.

An investigation thereupon was made by the Department

of Labor, with notice’to both the International Union and

Local Union that one of the grounds of complaint was that

. “candidate qualifications were not uniformly applied.” The

International President informed Ahe Area Director of. the

Department that “Nothing further will be done by this of-

1Myra Wolfgang was a member of the General Executive Board.

She and the Genera] President were recorded as “not voting” on Frank-

lin’s appeal to the Board.

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DL OLE ANTI AE INO LETTE OE NOT RY SOE IIL. ANN HT gE

o*s 15

fice, unless and until we are fully advised with much

greater particularity of the circumstances and details con-

cerning the alleged violations.”

The complaint filed by the Secretary of Labor in this

proceeding alleges that the union violated Section 401(e) —

of the Act, 29 U.S.C. §481(e), in the conduct of the election.

- The alleged violation consisted of allowing Myra Wolfgang

- to run as a candidate for secretary-treasurer, despite the

fact that.she failed to fulfill the. “two years continuous

good standing” eligibility requirement, while this same re-

quirement was applied to disqualify other candidates simi-

larly situated. The complaint further alleges that the

union altered its dues records so as to conceal the facts

disqualifying secretary-treasurer Wolfgang."

2 The complaint contained the following averments:

“TV

“The defendant, purporting to act in eunsiianss with its ‘constitution °

and bylaws, conducted an election of officers on J uly | 20, 1965. This

election was subject to the provisions of Title IV of the Act (29 U.S.C.

481, sed seq.).

“<H,

“On June 15, 1965, Godfrey Franklin, a member in good standing of

defendant, filed a protest of.the conduct of the said election, in accord-

ance with the constitution and bylaws of defendant and of the Hotel

; and Restaurant Workers and Bartenders International Union, AFL-

CIO (hereinafter the International). On October 12, 1965, the General

Secretary-Treasurer of the International notified him that his protest

was denied. Having then fully exhausted the. remedie3 available under

the constitution and bylaws of the defendant and the International, .

without obtaining relief, he filed a complaint with the Secretary of

Labor, on October 26, 1965, within the time specified in Section 402(a)

(1) of the Act (29 U.S.C. 482 (a)(1)), alleging violations of the pro- ~

vision of Section 401 of the Act (29 U.S.C. = the part of defend-

ant in the conduct of the protested election.

“VI

“Pursuant to Section 402(b) of the Act (29 U.S.C. 482(b)) the Secre-

, tary of Labor investigated the said complaint and as a result of the

facts shown by said investigation found probable cause to believe that

(Continued on next page)

oe

16 ,

The union filed a motion to‘dismiss the complaint on the

ground tiat Frankin’s protest was directed only to the office

_ of vice president and contained no charge concerning the

' disqualification of Myra Wolfgang for the office of secre-

tary-freasurer. The union argues that Franklin’s com-

plaint to-the union did not give notice of the charges which

are the subject matter of the Secretary’s complaint, there-

by depriving the union of an opportunity to investigate

the charges concerning Myra Wolfgang’s qualifications.

It is the union’s position that the Secretary has no right

to maintain this action because the statute requires that

the remedies available under the-constitution and by-laws

of the union first must be exhausted. 29 U.S.C. §482(a) (1).

_ Initially the District Julge denied the motion to dismiss,

rendering an opinion which we find to be well-reasoned and

sound. Thereafter the decision was announced in Wirtz v.

Local Unions, Nos. 9, 9A and 9-B, International Union of »

Operating Engineers, 366 F.2d 911 (10th Cir. ). * Upon the

(Continued from ‘preceding page)

violations of Title IV of. the Act (29 U.S.C. 481, et seq.)<on the part

of defendant had occurred in the conduct of said election and had not

been remedied prior to the filing of this action. :

“VII - .

“In the said election, defendant permitted Myra Wolfgang to run

as a candidate for Secretary-Treasurer, and declared her as having been

. elected, although she was then not qualified to be a candidate for, and

to hold, office under the eligibility requirements of applicable provisions

of the constitution and bylaws of the defendant and of the Interna-

tional ; to. wit, the requirement to have maintained good standing for

a period. of two. years. The said requirement was at the same time ap-

plied to other candidates. The union altered its due records or per-

mitted the records to be altered so as to conceal the facts disqualifying

Myra Wolfgang. Defendant thereby violated Section 401(e) of the

Act (29 (U.S.C. 481(c)).

“The violations of Section 401 of the Act (29 U.S.C. 481), found and

alleged as above, may have affected the. outcome of the election,”

3 Certiorari was granted and this decision «was vacated for moot-

ness, 387 U.S. 96. The Secreétary’s brief states that after the Solicitor

General filed a petition for certiorari, the parties filed a joint sugges-

tion of mootness, on the ground that the case had been settled in an

agreement calling for a ‘supervised election of all officers.

-. lin’s internal complaint was that the dues requirement was

a

authority .of this opinion the District Court’ vacated its ©

previous order and granted the union’s motjon to dismiss

the complaint for failure to exhaust internal union reme-

dies. . We reverse on authority of Wirtz v. Local Union

125, Laborer’s International Union, supra, in which the Su-

preme Court held that in a suit by the Secretary of Labor

under Section 402 of the Labor Management Reporting

and Disclosure Act of 1959, the Secretary is not limited

1o the specific allegations made in the union member’s ini-

tial complaint. |

The essence of Franklin’s internal complaint was that

“although he: paid his dues like everyone else, he was the

only one disqualified.”” Although he alleged. discrimination

as between himself and ‘the incumbent vice president, he

also involved secretary-treasurer Wolfgang in his allega-

tions, charging that the incumbent vice president was “‘her

favored candidate” and that the real reason for his own

disqualification was not the dues requirement, but the fact :

that he accepted the nomination “contrary to the wishes

of secretary-treasurer Wolfgang.” The burden of Frank--

being utilized in a discriminatory manner by the incumbent

officers, including Myra Wolfgang, to stifle opposition.

- Lacking the investigatory authority of the Secretary of

Labor, Franklin could not have been expected to discover

the fact later charged by the Secretary—that the union

altered the dues records of Wolfgang to conceal her in-

eligibility to run for office under the same rule that had

been used to disqualify Franklin. /

The union’s defense to this litigation is that Franklin’s

internal complaint failed to allege nonpayment of dues by

Wolfgang, a fact which the union itself actively concealed.

We find this defense to be untenable. |

We hold that under the averments of the complaint in

this case the action may be maintained by the Secretary

attacking the legality of the election of thé union’s secre-

tary-treasurer and other officers, even though the union

member who exhausted internal remedies before the suit

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18

was filed was a candidate for vice president. We further

hold.that the internal ¢omplaint filed by Godfrey Franklin

in this case was adequate to give the union an opportunity

to correct the violation and that the complaint is sufficient

to aver exhaustion of internal union remedies in compli-

-ance with the statute. 29 U.S.C. §482(a).

The order dismissing the complaint is reversed and the

ease is remanded to the District Court for trial.

APPENDIX

June 22, 1965

3111 Oakman Boulevard

Detroit 39, Michigan |

Mr. Ed S. Miller

General President

‘Hotel and Restaurant Employees and

Bartenders International Union

6 East Fourth Street.

Cincinnati, Ohio 45202

Dear Mr. Miller:

I herewith appeal from the decision of the Election Com-

mittee of Local 705 that I am ineligible to run for the office

of Local Vice-President of the Local Union at the pending

elections, to which office I was duly nominated at the Local’s

convention of June 7, 1965. (My: protest from such declara-

tion of ineligibility was rejected, with direction that, if I

_-wish, I appeal directly to you.)

The purported reason I have been declared ineligible is

my alleged violation of the provisions of Article XII, Sec.

6 of the International Constitution, respecting arrearage

of dues, and the provisions of Article VI, Sec. 1 of Local

705’s by-laws, respecting eligibility for candidacy. The

Election Committee’s letter of June 9, 1965, declaring my

ineligibility, is herewith enclosed.

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The conclusion of the Election Committee is clearly er-

roneous. I have never been advised of any such infraction,

nor been suspended, fined, or otherwise disciplined with

‘respect thereto, nor been asked to pay any fee or other

penalty as a condition of reinstatement; nor has the Local

ever advised you, as would otherwise be its obligation under

Article X, Sec, 21 of the International’s Constitution, of

any suspension of myself; nor has it withheld any per

capita from you based upon any alleged cessation or sus-

pension of my membership. Indeed, if Article XII, See.

6 of the International Constitution stands. applicable, the

Local itself is suspended for failure to remit to you fees

otherwise alleged owing, Until now, the Local has con-

sistently accepted my dues and that of others when tend-

ered, has waived the purported construction of this sec-

tion and its application, and is estopped to assert it now.

My dues book will attest to fully paid dues without sus-

pension at all times, as receipted by Secretary-Treasurer

Wolfgang. . see 3

The purported reason for my declared ineligility is a

sham and crude subterfuge. The real reason is that, con-_

trary to the, wishes of Secretary-Treasurer Wolfgang, I

accepted nomination for .the office of Vice-President in

opposition to her favored candidate, incumbent Vice-Presi-

dent Furay—whose own circumstances relative to the al-

leged dues provisions have, in fact, been no different from

my own. This discriminatory abuse of my rights as a

member of the Local and International .violates the pro-

visions of .the Labor Management Reporting and Disclo-

sure Act of 1959, including Sections 401(c), 401(e) and 609,

and the Constitution and‘by-laws of the International and —

Local, respectively.

In addition to the foregoing, on June 10, 1965, I was

discharged as a business agent of the Local Union, also

for exercising my rights as a member to participate in

election procedures of the Local Union and to stand for

office. The pretext given was “insubordination”. I hereby.

appeal from the Local 705 Executive Board’s ratification

of that discharge, which action was taken in violation of

Section 609 of the Labor Management Reporting and Dis-

8 TILE NS HO PLOT AE ON IG EIS EB

20.

closure Act of 1959, and the provisions of the Interna-

tional’s Constitution and Local by-laws.

I take this appeal not merely to exhaust my internal

remedies preliminary to the institution of appropriate ac-

tion, if necessary, by myself and/or the Secretary of Labor,

but in the sincere hope that the International will not

iolerate this flagrant abuse of its members’ rights to en-

joy internal union democracy. These matters are already

a, source of public notoriety in Detroit, to our mutual re-

gréet. I hope you will immediately review and reverse these

actions, particularly so as to afford reasonable time for me

to effectively campaign prior to the-election, which is now

scheduled for July 20. I further request, pursuant to Sec-

tion 401 of the Labor Management Reporting and Dis-

closure Act, that I be afforded equal treatment with all

othef candidates with respect to the circulation of campaign

material, access to union records, and the assurance‘of ade-

quate safeguards to insure a fair election, including the

presence of an observer in my behalf at the polls and at the

counting of ballots.

I await your prompt reply.

Yours very truly,

| /s/ Godfrey Franklin ~ |

, GODFREY FRANKLIN

ENCLOSURE: |

ce: Local 705 .

Hotel, Motel & Restaurant Employees’ Union

100 Selden Avenue

Detroit, Michigan

- APPENDIX B

ORDER DENYING PETITION FOR REHEARING

| (Filed March 11, 1968)

Before Weick, Chief Judge, Phillips and Celebrezze, Cir- ©

cuit Judges. ;

Upon. consideration, it is Ordered that the petition for

pps be and hereby is denied.

‘<Eintered by order of the Court.

/ s/ Carl W. Reuss,

Clerk.

=<

' APPENDIX C

a as

[Caption Omitted]

. ORDER OF DISTRICT COURT DENYING MOTION

TO DISMISS

(Filed July 26, 1966)

At a session of said court, held in the Federal Building

in the City of Detroit, Michigan, on July 26, 1966.

Present: The Honorable Fred W. Kaess, United States

District Judge.

This action is brought by the Secretary of Labor of the

United States under the Labor-Management Reporting and

Disclosure Act, 73 Stat. 519 (1959), 29 U.S.C. §§401-531" ~

(e) of the Act (29 U.S.C. §481(e)) in the conduct of an elec-

tion held July 20, 1965, by allowing Myra Wolfgang to run

as a candidate for Secretary-Treasurer, despite the fact that

she was not qualified to run under the ‘‘2 years continuous

good standing” requirement as it was applied to disqualify

persons similarly situated who were candidates for other

offices. The complaint further alleges that the Union per-

mitted the altering of its records so as to conceal the dis-

qualifying facts.

: e-

The defendant, pursuant to Rule 12(b) (6) of the Federal

Rules of Civil Procedure, moves to dismiss the complaint

for failure to state a claim for which relief may be granted,

for the reason that there has been no exhaustion of Union

remedies as required ~by Section 402(a)° of the Act ad

U. S. C. §482(a)). Section 402 provides:

“(a) 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. . .

1 Hereinafter referred to simply as “the Act”.

- . The complaint alleges that defendant violated Section 401- __

ee as ER Pees ad mea cin AB A AN

23

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 viola-

tion of the constitution and bylaws of the labor or-

ganization pertaining to the election and removal of

officers)... . .

(b) The Secretary shall investigate such complaint

and, if he finds probable cause to believe that a viola-

tion of this sub-chapter has occurred and has not been

remedied, he shall, within sixty days after the filing

of such complaint, bring a civil action against the labor

organization .. .”

Defendant contends that although the complaining mem-

ber, Godfrey Franklin, protested his disqualification

through all available Union remedies, he never protested

the qualifications of Myra Wolfgang, and that, there- .

fore, there has been a failure of a condition precedent to

_the Secretary’s complaint. Defendant relies principally

‘ upon Wirtz v. Local Union No. 125, International Hod Car- :

riers’, Building and Common Laborers’ Union of America,

231 F. Supp. 590 (N.D. Ohio 1964), in which ‘the Court,

emphasizing that the purpose of the exhaustion of internal

remedies requirement was to afford the Union the first op-

portunity to police its own behavior, held that where a mem-

ber filed a protest with the Union respecting the validity

of a run-off election, the Secretary could not challenge the

validity of the original election because internal Union

remedies had not been exhausted as to that election.

Defendant also relies upon the recent decision in Wirtz -

». Local Union 6, 'Hotel, Motel and Club Employees’ Union,

66 Civil No. 626 (July 15, 1966), in which the District

, Court for the Southern District of New York held that

where Union members had protested only that a certain

eligibility requirement was too restrictive, the Secretary

‘ eould not attack the election on the grounds that the Union

failed to give adequate and timely notice of the composition

of its election districts, that the members’ right to vote, for.

the candidate of their choice was interfered with, and that

certain offices were filled in a manner other than by election. .

Yew

L A ag ehh iS i BS ies ee a

24

This Court is in complete accord with these decisions.

However, the instant case involves an entirely. different

_ situation. Here, it is the application of the same eligibility

requirement to candidates running in the same election, but

for different offices, which is in question. The issue to be re-

solved is whether Godfrey Franklin’s protest to the Union

that the requirement of “2 years continuous good standing”

had been discriminatorily applied to disqualify only him,

when he had paid his dues in the same manner as everyone’

else in the Local, afforded the Union a fair opportunity

to investigate and remedy the all egedly i improper qualifica-

tion of Myra Wolfgang. This Court is of the opinion that it

did.

While Franklin did not specifically name Myra Wolfgang,

nor allege alteration of records, he did, in his appeal to the

General President of the International, allege discrimina-

tion in the enforcement of the ‘‘good standing’’ require-

ment.’ Franklin could not have known for certain which

2In this letter (Plaintiff's Exhibit E) Franklin stated, in para-

graphs 3 and 4:

“The conclusion of the Election Committee. is clearly erroneous.

I have never been advised of any such infraction, nor been sus-

pended, fined, or otherwise disciplined with respect thereto, nor

‘been asked to pay any fee or other penalty as a ition of rein-

statement; nor has the Local ever advised you, as Would otherwise

be its obligation under Article X, Sec 21 of the International’s

‘Constitution, of any suspension of myself; nor has it withheld

any per capita from you based upon any alleged cessation or sus-

pension of my membership. Indeed, if Article XII, Sec. 6 of the In-

ternational Constitution stands applicable, the Local itself is sus-

pended for failure to remit to you fees otherwise alleged owing.

Until now, the Local has .consistently accepted my dues and that

of others when tendered, has waived the purported construction

of this section and its application, and is estopped to assert it now.

My dues book will attest to fully paid dues without suspension at

all times, as receipted by Secretary-Treasurer Wolfgang.

“The purported reason for my declared ineligibility is a sham

and crude pines, The real reason is that, contrary to the

(Continued on. next page)

25

other candidates were not qualified, nor could he have

known of any alteration of records. All he could protest was

what he knew. That is, that, although he paid his dues like

everyone else, he was the only one disqualified. Using his

broad powers of investigation, after being apprised of dis- —

crimination ‘by Franklin, the Secretary determined which

other candidates were not qualified, and that certain records

had been altered. The Union could also have discovered

these things had it chosen to investigate thoroughly. The

following statement by the court in Wirtz v. Local Union

169, International Hod Carriers’, Building and Common

Laborers* Union of America, 246 F. Supp. 741 (D.Nev.

1965) is apropos to the present case: .

“The act should receive a practical interpretation gov-

. erned by common sense and realities. If Congress in-

tended that the union member assert.a lawyer-like pro-

test to the Executive Board, covering all the bases by

specific averment, and buttressed -by evidence of all

irregularities in the election, there would be no occa-_

~ gion for an evidentiary investigation by the Secretary:

Such an interpretation restricts the Act to a definition

of remedies and establishment of jurisdiction in this

Court for the vindication of essentially private rights,

and de-emphasizes to the point of emasculation the pub-

lic interest which prompted Congress. . . .

“The act should be construed to mean that the Secre-

tary has, on complaint of a union member, the right

to investigate all aspects of the contested election and

to base a complaint to the Court on every issue which

' (Continued from preceding page)

wishes of Secretary-Treasurer Wolfgang, I accepted nomination

for the office of Vice-President in opposition to her favored can-

_ didate, incumbent Vice-President Furay—whose own circumstances

relative to the alleged dues provisions have, in fact, been no dif-

ferent from my own. This discriminatory abuse of my rights as a

member of the Local and International violates the provisions of

the Labor Management Reporting and Disclosure Act of 1959, in-

cluding Sections 401(c), 401(e) and 609, and the ‘Constitution and” ~

by-laws of the International and Local, respectively.” (Emphasis

_ gupplied.) .

26

the defendant union had a fair opportunity to consider

and resolve in connection with any member’s appeal to

the General Executive Board of the union. The Secre-

tary should not be limited to the ground asserted by the

one member who complained to the Secretary. Such an

approach will preserve the union’s first right to cor-

rect its own procedures and will help to avoid the in-

tolerable situation which will result if the union is

permitted to treat the separate complaint of each ap-

pealing member as an isolated ‘case’ filed for vindica-

tion of the personal rights of the member and without

regard for the public interest asserted by the Labor-

Management Reporting and Disclosure Act of 1959.’”

(Emphasis supplied.)

Assuming the well-pleaded allegations of the complaint

to be true, as must be done on @ motion to dismiss,‘ the

eligibility requirements were unfairly applied and the rec-

ords tampered with, to make Myra Wolfgang eligible ‘and .

Godfrey Franklin ineligible. Clearly, the court should hear

the évidence and then determine whether the validity of the

elections of all or some of the officers. were impaired.’ As

was stated by the Court in Wirtz v. Local 191, International

Brotherhood of Teamsters, Chauffeurs, Warehousemen and

Helpers of America, 226 F. Supp. 179 (D. Conn. 1964) :

8 The Secretary’s function under Title IV of the Act is analogous

to that of the General Counsel of the National Labor Relations Board.

in relation to charges of unfair labor practices under the Taft-Hart-

ley Act. Once a charge has been made, the N.L.R.B. investigation and -

complaint are not confined to the specific details of the charges but

may extend to related matters of the same ‘class of violations charged.

N.L.R.B. v. Fant. Milling Co., 360 U.S. 301 (1959); N.L.R.B. v. Lasko thy

Metal Products, Civil No. 16520 (6th Cir., July 7, 1966). 29 U.S. C.

$160(b). <r

4 Clark v. Uebersee Finanz-Korporation, A.G., 882 U.S. 480 as; Ds

Wilhide v. Keystone Ins. Co., 195 F. Supp. 659 (M.D. Pa. 1961); 2

Moore, Federal Practice, 112.08 p. 2244 (2d ed. 1964).

8If at the conclusion of the proofs the evidence shows otherwise,

an appropriate motion may be made.

27

‘The Court is not bound to confine itself just to the

one.person who processed the thing; nor is the Court

compelled to set aside the entire election. It is a matter

_ _, of judging the thing on the evidence and deciding

“” whether this invalidity or violation did have a damag-

ing effect on the election of other officers beside the one

with which we are particularly concerned.”

Defendant further contends that the action was not timely

filed. Section 402(b) of the Aet (29 USC §482(b)) provides

* that, after the Secretary finds probable cause to believe that

election violations have occurred and have not been reme-

. died, he shall “within: sixty days after-the filing of [the

member’s] complaint’’ institute a civil action to set aside

the election. However, in Wirtz v. Local Union 611, Interna-

tional Hod Carriers’ Building and Common Laborers’ Un-

ion of America, 229 F. Supp. 230 (D. Conn. 1964), considera

tion was given to the factors inhibiting the Secretary from

commencing the action within the set period, and in Wirtz

v. Great Lakes District Local No. 47, International Or-

ganization of Masters, Mates & Pilots, 240 F. Supp. 859

(N.D. Ohio 1965), it was held that where the Union refused

to produce certain records until after court action, the

period of the Union-caused delay was not to be counted.

_ The Secretary alleges, and defendant does not deny, that

- the defendant refused to produce records until court action

was taken, thus causing a 35-day delay. With the addition -

of this 35 days to the 60-day period, the action was timely

filed. i eS oatt | :

Defendant’s remaining grounds for dismissal have been

- neither briefed nor argued orally, and appear to be without .

' merit. :

It Is Ordered, therefore, that defendant’s motion to dis-

miss is denied. . . |

Fred W. Kaess,

‘ United States District Judge. _

APPENDIX D | ek

| [Caption Omitted]

ORDER OF DISTRICT COURT GRANTING DEFEND-

ANT’S MOTION TO DISMISS AND VACATING

ORDER OF JUL¥ 26, 1966

- Ata session of said Court held in the panies Building

at Detroit, Michigan, this 23rd day of December, 1966.

Present: Honorable Fred W. Kaess, District Judge.

This court having issued, on July -26, 1966, an order de-

nying defendant’s motion to dismiss the complaint for fail-

ure to state a claim for which relief can be granted,

The matter having come before the court on defendant’s

motion for a rehearing; and

The court having reconsidered the matter i in the light of

the decision in Wirtz v. Local Nos. 9, 9-A, 9-B, International

Union of Operating Engineers, 366 F. 2d 911 (10th Cir.

1966) ; we

Ps

It-Is Ordered that the order of July 26, 1966, is vacated

and that the defendant's motion to dismiss the complaint i is

Co , |

Fred W. Kaess, ©

District Judge.

29

APPENDIX E

a

STATUTE INVOLVED

Section 402 of the LMRDA, 29 U.S.C. 482, provides in

relevant part as follows: ; i

-. See. 402(a). A member of a labor organization—

(1) who has exhausted the remedies available un-

der 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 cal-

endar month thereafter alleging the violation of any

provision of section 401 * * *. | a

(b) The Secretary shall investigate.such complaint

and, if he finds probable cause to believe that a viola-

tion of this title has occurred and has not been reme-

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

complaint, bring a civil action against the labor organi-

zation’as an entity in the district court of the United

States in which such Jabor organization maintains its

principal office to set aside the invalid election, * * *.

(c) 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, or

(2). that the violation of section 401 may have af-

_ fected the outcome of an election, |

a

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

and direct the conduct of a new election under super-

vision of the Secretary and, so far as lawful and prac- ~

ticable, in conformity 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 organiza-

Ga"?