LEAHY, Senior District Judge.
This is an action under the Labor-Management Reporting and Disclosure Act of 1959, 29 U.S.C. § 401 et seq., to require election by secret ballot of business agents and stewards of Local 107, Highway Truck Drivers and Helpers of the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America.
It is alleged business agents and stewards are “officers” within the meaning of the Act, thus requiring their election; however, they hold office by appointment of the Secretary-Treasurer of the Union. The complaint charges the failure of the Union to nominate and elect them by secret ballot constitutes a violation of §§ 101(a) (1), 401(b), and 401(e). The prayers for relief include an order directing the Union to hold a secret ballot election for business agents and stewards and an injunction against interference with plaintiffs’ rights under the Act.
Defendant contends no rights guaranteed by Title I were violated; the sole method of redress open to plaintiffs is provided in Title IV, § 402, by way of appeal to the Secretary of Labor; and plaintiffs were required to exhaust internal union remedies before commencing this action. This matter is before the Court pursuant to Motions of plaintiffs and defendant for Summary Judgment.
There are only two issues before this Court: Whether plaintiffs’ alleged rights fall within the purview of Title I or IV; and whether plaintiffs are now in a position to avail themselves of any remedy provided by the applicable title.
1. Section 101(a) (1) 1 EQUAL RIGHTS. Proceeding on the assumption business agents and stewards are “officers” who must be elected by secret ballot, plaintiffs claim the denial to them of the right to vote for these “officers” constitutes a deprivation of their equal rights under § 101(a) (1). True, that section protects a member’s rights “to nominate candidates” and “to vote in elections.” But, the emphasis there, it seems, is placed on the right of a member to enjoin violations of the Act where one member is granted the right and another is denied it. The essence of the alleged wrong in the case at bar, however, does not concern itself with equal rights among members to vote for “officers”, but whether business agents and stewards are, in fact, “officers” who must be elected. Accordingly, plaintiffs have failed to establish a claim arising under § 101(a) (1) upon which relief may be granted.
2. Scope of Section U02. Title IV, in § 401(b),2 requires unions to elect officers at least every three years. Sec. 401(e) 3 states every member has a right to be a candidate and to vote. Defendant [343]*343■denied § 1337 4 may be used to establish jurisdiction for a violation of § 401 rights and contends § 402 5 provides an ■exclusive remedy before the Secretary ■of Labor. There is nothing in the provisions of § 402, or its legislative history, •which affords support for defendant’s view that the subject of this litigation is within the scope of that Section. The ■enforcement procedure set forth in § 402 is designed only for elections already Leld or for elections not held within the ■time prescribed. Thus, under § 402(a) the “challenged election shall be presumed valid pending a final decision;” under § 402(b) the Secretary of Labor is vested with authority to bring a civil action in federal court “to set aside the invalid election, if any;” and under § 402(c) “the court shall declare the election, if any, to be void and direct the conduct of a new election.”6 These provisions do not cover the present situation where a union office is being denied elective recognition.
The language of Mamula v. United Steelworkers, 3 Cir., 304 F.2d 108, cert, denied, 371 U.S. 823, 83 S.Ct. 42, 9 L.Ed.2d 63 (1962), and Colpo v. Highway Truck Drivers and Helpers, D.C. Del., 201 P.Supp. 307, vacated as moot, [344]*3443 Cir., 305 F.2d 362, cert, denied, 371 U.S. 890, 83 S.Ct. 188, 9 L.Ed.2d 123 (1962), causes momentary pause for it suggests the Federal District Courts do not have jurisdiction for violations of Title IV except in accordance with the procedure set up in § 402. The Mamula case involved an action to set aside an election and the Colpo case concerned a litigant challenging an impending election. The underlying philosophy of both cases is the vital role of the Secretary of Labor should not be eliminated. In the present case, however, the alleged rights which are violated do not arise out of a pre-or post-election challenge in the usual sense; here, the alleged rights which are violated arise out of the denial of holding any election. Since the enforcement procedure set forth in § 402 is designed only for elections already held or for elections not held within the time prescribed, the Secretary of Labor could not become involved in an action to compel the holding of an election. This anomalous result, therefore, strongly argues in favor of holding § 402 is not an exclusive source of jurisdiction to grant relief when there has been a failure to hold an election. Such a holding is not inconsistent with the above cases since they are jurisdictionally distinguishable.
3. Jurisdiction Under 28 U.S.C. § 1337 and Title IV. Plaintiffs argue § 401 should be read in conjunction with 28 U.S.C. § 1337; it is contended the wording of § 603(a), “* * * except as explicitly provided to the contrary, nothing in this Act shall take away any right or bar any remedy to which members of a labor organization are entitled under such other Federal laws or law of any state,” provides this Court with jurisdiction to hear an action to compel the holding of an election when coupled with § 1337.7
This Circuit, in Serio v. Liss, 3 Cir., 300 F.2d 386, recognized the use of § 1337 to enforce a right secured by § 504 (a). Chief Judge BIGGS stated, “ * * * we cannot doubt that Congress; considered the provisions of Section 504 (a) of the Act as important in effecting a national purpose. * * * Congress made this a national policy and in our opinion deemed that policy to be of such importance as to permit its application, through adjudications by the national1 courts.”
The cause of action in the case at bar “arises under” a law of the United. States, since plaintiffs’ claim is based directly upon § 401. Moreover, we believe the national effort to insure union democracy was deemed by Congress “to-be of such importance as to permit its. application through adjudications by the national courts.” In reaching this conclusion, I have not overlooked the Colpocase 8 in which it was stated, “ * * *' 1337 cannot expand the restricted scope-of jurisdiction conferred by theLMRDA.” As pointed out above, theColpo case involved an entirely different, factual situation from the present case. Unlike the present situation, plaintiff was-in a position to avail himself of the remedy afforded by § 402 after the election-was conducted. Certainly it was not.
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LEAHY, Senior District Judge.
This is an action under the Labor-Management Reporting and Disclosure Act of 1959, 29 U.S.C. § 401 et seq., to require election by secret ballot of business agents and stewards of Local 107, Highway Truck Drivers and Helpers of the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America.
It is alleged business agents and stewards are “officers” within the meaning of the Act, thus requiring their election; however, they hold office by appointment of the Secretary-Treasurer of the Union. The complaint charges the failure of the Union to nominate and elect them by secret ballot constitutes a violation of §§ 101(a) (1), 401(b), and 401(e). The prayers for relief include an order directing the Union to hold a secret ballot election for business agents and stewards and an injunction against interference with plaintiffs’ rights under the Act.
Defendant contends no rights guaranteed by Title I were violated; the sole method of redress open to plaintiffs is provided in Title IV, § 402, by way of appeal to the Secretary of Labor; and plaintiffs were required to exhaust internal union remedies before commencing this action. This matter is before the Court pursuant to Motions of plaintiffs and defendant for Summary Judgment.
There are only two issues before this Court: Whether plaintiffs’ alleged rights fall within the purview of Title I or IV; and whether plaintiffs are now in a position to avail themselves of any remedy provided by the applicable title.
1. Section 101(a) (1) 1 EQUAL RIGHTS. Proceeding on the assumption business agents and stewards are “officers” who must be elected by secret ballot, plaintiffs claim the denial to them of the right to vote for these “officers” constitutes a deprivation of their equal rights under § 101(a) (1). True, that section protects a member’s rights “to nominate candidates” and “to vote in elections.” But, the emphasis there, it seems, is placed on the right of a member to enjoin violations of the Act where one member is granted the right and another is denied it. The essence of the alleged wrong in the case at bar, however, does not concern itself with equal rights among members to vote for “officers”, but whether business agents and stewards are, in fact, “officers” who must be elected. Accordingly, plaintiffs have failed to establish a claim arising under § 101(a) (1) upon which relief may be granted.
2. Scope of Section U02. Title IV, in § 401(b),2 requires unions to elect officers at least every three years. Sec. 401(e) 3 states every member has a right to be a candidate and to vote. Defendant [343]*343■denied § 1337 4 may be used to establish jurisdiction for a violation of § 401 rights and contends § 402 5 provides an ■exclusive remedy before the Secretary ■of Labor. There is nothing in the provisions of § 402, or its legislative history, •which affords support for defendant’s view that the subject of this litigation is within the scope of that Section. The ■enforcement procedure set forth in § 402 is designed only for elections already Leld or for elections not held within the ■time prescribed. Thus, under § 402(a) the “challenged election shall be presumed valid pending a final decision;” under § 402(b) the Secretary of Labor is vested with authority to bring a civil action in federal court “to set aside the invalid election, if any;” and under § 402(c) “the court shall declare the election, if any, to be void and direct the conduct of a new election.”6 These provisions do not cover the present situation where a union office is being denied elective recognition.
The language of Mamula v. United Steelworkers, 3 Cir., 304 F.2d 108, cert, denied, 371 U.S. 823, 83 S.Ct. 42, 9 L.Ed.2d 63 (1962), and Colpo v. Highway Truck Drivers and Helpers, D.C. Del., 201 P.Supp. 307, vacated as moot, [344]*3443 Cir., 305 F.2d 362, cert, denied, 371 U.S. 890, 83 S.Ct. 188, 9 L.Ed.2d 123 (1962), causes momentary pause for it suggests the Federal District Courts do not have jurisdiction for violations of Title IV except in accordance with the procedure set up in § 402. The Mamula case involved an action to set aside an election and the Colpo case concerned a litigant challenging an impending election. The underlying philosophy of both cases is the vital role of the Secretary of Labor should not be eliminated. In the present case, however, the alleged rights which are violated do not arise out of a pre-or post-election challenge in the usual sense; here, the alleged rights which are violated arise out of the denial of holding any election. Since the enforcement procedure set forth in § 402 is designed only for elections already held or for elections not held within the time prescribed, the Secretary of Labor could not become involved in an action to compel the holding of an election. This anomalous result, therefore, strongly argues in favor of holding § 402 is not an exclusive source of jurisdiction to grant relief when there has been a failure to hold an election. Such a holding is not inconsistent with the above cases since they are jurisdictionally distinguishable.
3. Jurisdiction Under 28 U.S.C. § 1337 and Title IV. Plaintiffs argue § 401 should be read in conjunction with 28 U.S.C. § 1337; it is contended the wording of § 603(a), “* * * except as explicitly provided to the contrary, nothing in this Act shall take away any right or bar any remedy to which members of a labor organization are entitled under such other Federal laws or law of any state,” provides this Court with jurisdiction to hear an action to compel the holding of an election when coupled with § 1337.7
This Circuit, in Serio v. Liss, 3 Cir., 300 F.2d 386, recognized the use of § 1337 to enforce a right secured by § 504 (a). Chief Judge BIGGS stated, “ * * * we cannot doubt that Congress; considered the provisions of Section 504 (a) of the Act as important in effecting a national purpose. * * * Congress made this a national policy and in our opinion deemed that policy to be of such importance as to permit its application, through adjudications by the national1 courts.”
The cause of action in the case at bar “arises under” a law of the United. States, since plaintiffs’ claim is based directly upon § 401. Moreover, we believe the national effort to insure union democracy was deemed by Congress “to-be of such importance as to permit its. application through adjudications by the national courts.” In reaching this conclusion, I have not overlooked the Colpocase 8 in which it was stated, “ * * *' 1337 cannot expand the restricted scope-of jurisdiction conferred by theLMRDA.” As pointed out above, theColpo case involved an entirely different, factual situation from the present case. Unlike the present situation, plaintiff was-in a position to avail himself of the remedy afforded by § 402 after the election-was conducted. Certainly it was not. contemplated where a union fails to hold, an election as contrasted with the situation presented in Colpo, there can be no-judicial intervention. Accordingly, I conclude plaintiffs’ contention that §■ 1337 provides this Court with jurisdiction to hear an action to compel the holding of an election is correct.
4. Exhaustion of Internal Remedies.. Plaintiffs, by their own assertion, have failed to exhaust internal union remedies contrary to the proviso of § 101(a) (4).9 The constitution of the Interna[345]*345tional Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America provides a complete set of rules for the orderly adjudication of all grievances and appeals. Article XIX, Sections 3(a) and (c) provide charges against a local union may be appealed from the Executive Board of the Joint ■Council to the General Executive Board (which meets four times a year) and from it to the Convention (which meets every five years).
Plaintiffs contend they may bypass the remedies established by the constitution because (1) they involve multiple appellate agencies and the holding ■of infrequent meetings; (2) it would have been a futile and dubious act to initiate union appeals; and (3) the basis for charges against local unions as contained in Article XIX, § 6, is not clear.
The factors to be considered in determining the reasonableness of hearing procedures have been recently examined in Harris v. International Longshoremen^ Association, 3 Cir., 1963, 321 F.2d 801 [47 L.C. [[18,415]. Judge HASTIE stated, “As long as there is likelihood that some decision will be forthcoming within the four-month period, and the aggrieved member has not shown that he will be harmed by being required to seek such a decision, cf., Detroy v. American Guild of Variety Artists, 2 Cir., 1961, 286 F.2d 75 [41 L.C. P6,720], cert, denied, 366 U.S. 929, 81 S.Ct. 1650, 6 L.Ed.2d 388, the purposes of the act require that judicial intervention be withheld until the member has given the internal grievance procedures the chance to operate which Congress deemed to be reasonable.” As far as multiplicity of appellate agencies and frequency of meetings are concerned, I cannot say they are so unreasonable as to make some decision within the statutory four-month period impossible. Moreover, the possibility corrective action within the Union will render plaintiffs’ complaint moot even without resorting to appellate agencies, suggests I should not step in before' the Union is given its opportunity.
Plaintiffs’ allegation that exhaustion of union procedures would be futile is not sufficient to grant judicial relief; futility must be shown by actual resort to such procedures. See Harris, supra.
The last of plaintiffs’ contentions is Article XIX, § 6,10 which sets forth the basis for charges against local Unions, does not enumerate any charges applicable to the theory of their case. They admit § 6 provides the basis for charges “shall consist of but not be limited to” those stated, but argue the Section is vague as to exactly what limita[346]*346tion, if any, is intended. There is nothing in the record which would indicate the reason plaintiffs failed to make a good faith effort to follow the union hearing procedures as they understood them. I conclude the failure to resort to union remedies was a result not of ignorance of union procedure, but of preference for the judicial forum. Such an election is not permitted during the statutory four-month period.
Since no genuine issue as to a material fact exists regarding the exhaustion of union remedies, defendant is entitled to grant of its motion for summary judgment as a matter of law. See Harris, supra, again.
An order may be submitted granting defendant’s motion for summary judgment as to the issue of exhaustion of union remedies and retaining jurisdiction for further proceedings after exhaustion of such remedies is completed in accordance with the above.