Donovan v. Missouri Pacific System Federation Joint Protective Board

737 F.2d 445, 116 L.R.R.M. (BNA) 3470
CourtCourt of Appeals for the Fifth Circuit
DecidedJuly 11, 1984
DocketNo. 83-2329
StatusPublished
Cited by2 cases

This text of 737 F.2d 445 (Donovan v. Missouri Pacific System Federation Joint Protective Board) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Donovan v. Missouri Pacific System Federation Joint Protective Board, 737 F.2d 445, 116 L.R.R.M. (BNA) 3470 (5th Cir. 1984).

Opinion

TIMBERS, Circuit Judge:

The Secretary of Labor commenced this action in the Eastern District of Texas alleging violation of the Labor-Management Reporting and Disclosure Act of 1959 (LMRDA), 29 U.S.C. § 481 et seq. (1982), and seeking to void the last election of the officers of appellee Brotherhood of Maintenance of Way Employees (Union) which was held July 28, 1980. The Secretary contends that the election was influenced by the failure of some of the subordinate lodges of the Union to comply with a requirement that notice of delegate elections be mailed to each member not less than 15 days prior to the election. The action was dismissed following trial. The court, Thomas M. Reavley, Circuit Judge,1 held that the protesting union member had failed to exhaust available union remedies prior to filing a complaint with the Secretary, as required by 29 U.S.C. § 482(a)(1) (1982). Since we hold that the union member’s protest letter adequately exhausted his internal union remedies, we reverse and remand for further proceedings according to law.

I.

The Union is a three-tiered labor organization consisting of more than 1,000 subordinate or local lodges under the jurisdiction of approximately 40 System Federations, which in turn are affiliated with the Grand Lodge. The Missouri Pacific System Federation Joint Protective Board (Federation) is one of these intermediate System Federations. It has jurisdiction over 56 local lodges. The Federation mailed a convention call, dated January 28, 1980, to its subordinate lodges, notifying them that the Federation convention would be held in Wichita, Kansas, on July 28, 1980 to elect Federation officers and to conduct other business. Each local lodge was entitled to send one convention delegate, provided that no delegate could represent more than 300 members. The election of convention delegates was to be in accordance with the Constitution and Bylaws of the Grand Lodge. Article XX, Section 10, provides, in part, that all members of the local lodges who are in good standing must be given at least 15 days advance notice of the date, time and place at which nominations for convention delegate will be made, as well as the date, time and place at which the delegate elections will be held.

The convention was held as scheduled. L.W. Borden challenged the incumbent, T.G. Hawkes, Jr., for the position of General Chairman. Borden lost by a narrow margin.2 At the convention, he raised a point of order on the ground that some of the subordinate lodges had not complied with the notice of delegate election requirement.

A month after the convention, Borden decided to protest the election. He initially contacted the Department of Labor by a letter dated September 10, 1980. He was told that he must exhaust his internal union remedies prior to filing a complaint with the Secretary.

On September 16, 1980, Borden wrote a letter3 to Olee Berge, President of the [447]*447Grand Lodge. In this letter he complained about several aspects of the election, including the allegation that members were “not given the opportunity to attend meetings or take part in the election of a delegate.” Berge responded with a letter dated September 22, 1980,4 which stated among other things that, unless and until Borden furnished him with “evidence of a probative nature showing that there is a basis for your accusations, your request for an investigation is declined.”

Borden interpreted this response as a denial of his request. He filed a complaint with the Secretary of Labor dated October 2, 1980. His complaint consisted of a letter stating that proof of the allegations was in the possession of the Grand Lodge and asking the Secretary to investigate. He enclosed a copy of his letter to Berge and the latter’s response.

The Secretary investigated and found merit to the protest that some members were not given the opportunity to attend meetings or to take part in the election of a delegate because they had not been properly notified. After receiving the Department of Labor’s Summary of Violations letter, the Union also conducted an investigation. It found that in some cases proper notice had not been given, but concluded that this failure did not affect the outcome of the election.

The Secretary commenced this action in the district court on January 5, 1981 seeking to have the July 28, .1980 election declared void and to have an immediate new election, under the supervision of the Department of Labor, for 7 of the 9 offices of the Federation Board. The complaint alleged certain violations of the LMRDA. It alleged that 29 U.S.C. § 481(e) had been violated in that 8 of the 56 subordinate lodges had -not given the 15-day notice of delegate election required by that section of the statute, and that 29 U.S.C. § 481(d) had been violated in that one of the lodges was represented by a delegate who had not been elected.

After a bench trial on February 11, 1983, the court filed a concise, straightforward decision on March 17, 1983. The court dismissed the action on the basis of a finding that the protesting union, member had failed to exhaust union remedies available to him as required by 29 U.S.C. § 482(a)(1). The court held that “Borden was required to make known his objection with such specific basis as was known to him”, and that he had failed to do so.

[448]*448II.

The sole question presented on this appeal is whether Borden adequately exhausted his union remedies before filing a complaint with the Department of Labor. Section 402(a) of the LMRDA, 29 U.S.C. § 482(a)(1), requires that a member of a labor organization “exhaust [] the remedies available under the constitution and bylaws of such organization and of any parent body” prior to filing a complaint with the Secretary of Labor alleging election violations.5 The justification for this requirement is “to postpone governmental intervention until the union is afforded the opportunity to redress the violation.” Wirtz v. Local 153, supra note 2, 389 U.S. at 472. See S.Rep. No. 187, 86th Cong., 1st Sess. 2, reprinted in 1959 U.S.Code Cong. & Ad.News 2318, 2323.

Hodgson v. Local Union 6799, United Steelworkers (Local 6799), 403 U.S. 333 (1971), held that “when a union member is aware of the facts supporting an alleged election violation, the member must, in some discernible fashion, indicate to his union his dissatisfaction with those facts if he is to meet the exhaustion requirement”. Id. at 341. The Union interprets this to mean that all information bearing on the alleged violation which is at the disposal of the union member must be specifically divulged in his initial protest. We disagree.

In Local 6799,

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Cite This Page — Counsel Stack

Bluebook (online)
737 F.2d 445, 116 L.R.R.M. (BNA) 3470, Counsel Stack Legal Research, https://law.counselstack.com/opinion/donovan-v-missouri-pacific-system-federation-joint-protective-board-ca5-1984.