PHILLIPS, Chief Judge.
Appellant McGuire appeals from an order of the District Court dismissing his complaint. The suit was filed under Titles I and IV of the Labor Management Reporting and Disclosure Act (the Act), 29 U.S.C.A. § 411 et seq.
McGuire is a member of Division 92 of the Brotherhood of Locomotive Engineers (BLE). He challenges the election of Charles S. Coughlin as First Assistant Grand Chief Engineer. This election was held at the 1966 convention of the BLE. The District Court granted the motion of defendants to dismiss. We affirm.
This dispute arises out of the following facts: For purpose of representation at conventions of the BLE, a division of less than 200 members is grouped with not more than two other divisions. These grouped divisions choose one delegate from among the membership of the three divisions. At every third convention each division is entitled to have one of its members be a convention delegate, if that division has not been so represented at either of the two preceding conventions.
For the 1966 convention, which was held from June 27 to August 3, 1966, one S. R. Price, who was not a member of division 92, was selected to be the convention delegate representing the three divisions. About a month before the convention date, McGuire’s division sent a letter to Price which contained a series of eleven instructions. There appears to have been some question as to whether certain of the instructions were contradictory, but that matter is not involved on this appeal. It is undisputed that one of the instructions was that Price was to place McGuire’s name in nomination as a candidate for the position of First Assistant Grand Chief Engineer. This was to be done, according to the instructions, “at the appropriate time at said convention in the name of Division 92.”
During the election of Grand Chief Engineer, which was held first, Price informed Coughlin, who was the presiding officer, of the communication from Division 92. Price, at Coughlin’s request, then surrendered the letter to Coughlin, and requested “to be recorded as complying with these instructions.” Following completion of the election for Grand Chief, Coughlin relinquished the chair, and the newly elected Grand Chief, presided. Thereafter the house was opened for the nominations for First Assistant Grand Chief Engineer. Coughlin was nominated. The chairman called for any further nominations. None were forthcoming. Price remained silent throughout.
Thereafter a motion was made to close the nominations. This motion carried and Coughlin was elected without McGuire’s name having ever been placed in nomination.
On August 7, 1966, McGuire appealed to the union’s Board of Appeals concerning the election. When the Board of Appeals failed to reach a final decision within three months after submission of the matter, McGuire filed a complaint
with the Secretary of Labor.
Following an investigation the secretary refused to initiate an action to set aside the election or to grant any other relief to McGuire with respect to the 1966 election. However certain modification of § 18 of BLE’s Constitution was agreed upon between the Secretary and the BLE to take effect at future elections of the Grand International Division of the union.
The case was closed by the Secretary on March 31, 1967.
Thereafter McGuire continued his protest to the Secretary and in addition complained to various members of Congress, all to no avail.
On March 17, 1969, McGuire, representing himself, filed the present action in the District Court.
In his complaint he alleged that the election of Coughlin violated §§ 101(a) (1), (2) and 401(e) of the Act, 29 U.S. C.A. §§ 411(a) (1), (2) and 481(e), respectively. Further it is alleged that Coughlin’s election was invalid, and that minutes of the convention showed at least two divisions on record as having instructed their delegate to vote for Mc
Guire. It is prayed that the Court declare McGuire the validly elected First Assistant Grand Chief.
District Judge William K. Thomas held that where a member of a union who was an unsuccessful candidate for union office seeks post-election relief, under either Title I or Title IV of the Act, the exclusive remedy is through the Secretary of Labor under Title IV. Alternatively the Court held that McGuire, in seeking relief before the Secretary, had elected his remedies for challenging an election already held.
The issue here is whether a member of the union who was an unsuccessful candidate for an office in the international union may seek relief in the District Court with respect to an election already held.
The relevant portion of Title I provides :
“(a) (1) Equal rights. — Every member of a labor organization shall have equal rights and privileges within such organization to nominate candidates, to vote in elections or referendums of the labor organization, to attend membership meetings, and to participate in the deliberations and voting upon the business of such meetings, subject to reasonable rules and regulations in such organization’s constitution and bylaws.
(2) Freedom of speech and assembly. — Every member of any labor organization shall have the right to meet and assemble freely with other members ; and to express any views, arguments, or opinions; and to express at meetings of the labor organization his views, upon candidates in an election of the labor organization or upon any business properly before the meeting, subject to the organization’s established and reasonable rules pertaining to the conduct of meetings:
Provided,
That nothing herein shall be construed to impair the right of a labor organization to adopt and enforce reasonable rules as to the responsibility of every member toward the organization as an institution and to his refraining from conduct that would interfere with its performance of its legal or contractual obligations.” 29 U.S.C.A. § 411(a) (1), (2).
Title IV, which deals specifically and in some detail with elections, provides in pertinent part that:
“No labor organization shall be required by law to conduct elections of officers with greater frequency or in a different form or manner than is required by its own constitution or bylaws, except as otherwise provided by this subchapter. Existing rights and remedies to enforce the constitution and bylaws of a labor organization with respect to elections prior to the conduct thereof shall not be affected by the provisions of this subchapter.
The remedy provided by this subchapter for challenging an election already conducted shall be
exclusive.” 29 U.S. C.A. § 483 (Emphasis supplied.)
The Supreme Court said in Calhoon v. Harvey, 379 U.S. 134, 140, 85 S.Ct. 292, 296, 13 L.Ed.2d 190:
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PHILLIPS, Chief Judge.
Appellant McGuire appeals from an order of the District Court dismissing his complaint. The suit was filed under Titles I and IV of the Labor Management Reporting and Disclosure Act (the Act), 29 U.S.C.A. § 411 et seq.
McGuire is a member of Division 92 of the Brotherhood of Locomotive Engineers (BLE). He challenges the election of Charles S. Coughlin as First Assistant Grand Chief Engineer. This election was held at the 1966 convention of the BLE. The District Court granted the motion of defendants to dismiss. We affirm.
This dispute arises out of the following facts: For purpose of representation at conventions of the BLE, a division of less than 200 members is grouped with not more than two other divisions. These grouped divisions choose one delegate from among the membership of the three divisions. At every third convention each division is entitled to have one of its members be a convention delegate, if that division has not been so represented at either of the two preceding conventions.
For the 1966 convention, which was held from June 27 to August 3, 1966, one S. R. Price, who was not a member of division 92, was selected to be the convention delegate representing the three divisions. About a month before the convention date, McGuire’s division sent a letter to Price which contained a series of eleven instructions. There appears to have been some question as to whether certain of the instructions were contradictory, but that matter is not involved on this appeal. It is undisputed that one of the instructions was that Price was to place McGuire’s name in nomination as a candidate for the position of First Assistant Grand Chief Engineer. This was to be done, according to the instructions, “at the appropriate time at said convention in the name of Division 92.”
During the election of Grand Chief Engineer, which was held first, Price informed Coughlin, who was the presiding officer, of the communication from Division 92. Price, at Coughlin’s request, then surrendered the letter to Coughlin, and requested “to be recorded as complying with these instructions.” Following completion of the election for Grand Chief, Coughlin relinquished the chair, and the newly elected Grand Chief, presided. Thereafter the house was opened for the nominations for First Assistant Grand Chief Engineer. Coughlin was nominated. The chairman called for any further nominations. None were forthcoming. Price remained silent throughout.
Thereafter a motion was made to close the nominations. This motion carried and Coughlin was elected without McGuire’s name having ever been placed in nomination.
On August 7, 1966, McGuire appealed to the union’s Board of Appeals concerning the election. When the Board of Appeals failed to reach a final decision within three months after submission of the matter, McGuire filed a complaint
with the Secretary of Labor.
Following an investigation the secretary refused to initiate an action to set aside the election or to grant any other relief to McGuire with respect to the 1966 election. However certain modification of § 18 of BLE’s Constitution was agreed upon between the Secretary and the BLE to take effect at future elections of the Grand International Division of the union.
The case was closed by the Secretary on March 31, 1967.
Thereafter McGuire continued his protest to the Secretary and in addition complained to various members of Congress, all to no avail.
On March 17, 1969, McGuire, representing himself, filed the present action in the District Court.
In his complaint he alleged that the election of Coughlin violated §§ 101(a) (1), (2) and 401(e) of the Act, 29 U.S. C.A. §§ 411(a) (1), (2) and 481(e), respectively. Further it is alleged that Coughlin’s election was invalid, and that minutes of the convention showed at least two divisions on record as having instructed their delegate to vote for Mc
Guire. It is prayed that the Court declare McGuire the validly elected First Assistant Grand Chief.
District Judge William K. Thomas held that where a member of a union who was an unsuccessful candidate for union office seeks post-election relief, under either Title I or Title IV of the Act, the exclusive remedy is through the Secretary of Labor under Title IV. Alternatively the Court held that McGuire, in seeking relief before the Secretary, had elected his remedies for challenging an election already held.
The issue here is whether a member of the union who was an unsuccessful candidate for an office in the international union may seek relief in the District Court with respect to an election already held.
The relevant portion of Title I provides :
“(a) (1) Equal rights. — Every member of a labor organization shall have equal rights and privileges within such organization to nominate candidates, to vote in elections or referendums of the labor organization, to attend membership meetings, and to participate in the deliberations and voting upon the business of such meetings, subject to reasonable rules and regulations in such organization’s constitution and bylaws.
(2) Freedom of speech and assembly. — Every member of any labor organization shall have the right to meet and assemble freely with other members ; and to express any views, arguments, or opinions; and to express at meetings of the labor organization his views, upon candidates in an election of the labor organization or upon any business properly before the meeting, subject to the organization’s established and reasonable rules pertaining to the conduct of meetings:
Provided,
That nothing herein shall be construed to impair the right of a labor organization to adopt and enforce reasonable rules as to the responsibility of every member toward the organization as an institution and to his refraining from conduct that would interfere with its performance of its legal or contractual obligations.” 29 U.S.C.A. § 411(a) (1), (2).
Title IV, which deals specifically and in some detail with elections, provides in pertinent part that:
“No labor organization shall be required by law to conduct elections of officers with greater frequency or in a different form or manner than is required by its own constitution or bylaws, except as otherwise provided by this subchapter. Existing rights and remedies to enforce the constitution and bylaws of a labor organization with respect to elections prior to the conduct thereof shall not be affected by the provisions of this subchapter.
The remedy provided by this subchapter for challenging an election already conducted shall be
exclusive.” 29 U.S. C.A. § 483 (Emphasis supplied.)
The Supreme Court said in Calhoon v. Harvey, 379 U.S. 134, 140, 85 S.Ct. 292, 296, 13 L.Ed.2d 190:
“Title IV sets up a statutory scheme governing the election of union officers, fixing the terms during which they hold office, requiring that elections be by secret ballot, regulating the handling of campaign literature, requiring a reasonable opportunity for the nomination of candidates, authorizing unions to fix ‘reasonable qualifications uniformly imposed’ for candidates, and attempting to guarantee fair union elections in which all the members are allowed to participate.”
From the detail with which Title IV sets out the rights, remedies and procedures, and in the light of the Supreme Court’s construction of the Act, this Court is convinced that with respect to his complaint as to the election McGuire must proceed under Title IV and not Title I. His complaint, although claiming violation of Title I rights, in substance alleges a nomination procedure which violated the rights protected under Title IV. He charges irregularities which prevented
his name from coming before the convention, an allegation charging an in-invalid nominating procedure. He also alleges that Coughlin’s election was invalid, and that he, McGuire, received the only votes validly cast for First Assistant and therefore should be declared the winner of the election. These allegations go to the heart of the rights protected by Title IV.
Appellant urges that there may be some overlap between Title I and Title IV protections, but that such overlap is not fatal to the maintenance of suit under Title I by the individual union member. That argument cannot stand under the facts of the present case. Insofar as McGuire alleges election violations specifically dealt with in Title IV, we hold that the procedures of Title IV must be invoked, notwithstanding a possible concurrent offense under Title I.
This is the only construction of the Act which comports with the Congressional purpose to treat election matters differently, entrusting to the Secretary the vindication of protected rights. The legislative history of the Act shows that the House version of the bill would have permitted suits by individual members after they exhausted their remedies within the union’s channels. The Senate version permitted only the Secretary to initiate suit in this situation. The bill went to conference and the Senate version was retained in lieu of the one passed in the House. U.S.Code Cong, and Ad.News, 1959, page 2507.
If an individual member could bring suit by the simple expedient of framing a claim under Title I, where the substance of the claim falls under Title IV, the comprehensive administrative and procedural provisions of Title IV would be rendered meaningless. We hold the substance of the claim is controlling.
McGuire has not alleged discrimination which would give rise to an independent claim under Title I. See Depew v. Edmiston, 386 F.2d 710 (3rd Cir.); Mamula v. United Steelworkers of America, 304 F.2d 108 (3rd Cir.), cert. denied, 371 U.S. 823, 83 S.Ct. 42, 9 L.Ed.2d 63. There is no allegation of unequal treatment of the nominators, as was the case in O’Brien v. Paddock, 246 F.Supp. 809 (D.C.N.Y.), upon which McGuire relies.
We think the gravamen of this complaint plainly falls within Title IV.
Where post-election relief is sought under Title IV the exclusive remedy is provided by that title. Only the Secretary may bring suit. 29 U.S.C.A. §§ 482(b) and 483. Calhoon v. Harvey,
supra,
379 U.S. 134, 85 S.Ct. 292, 13 L.Ed.2d 190; Stein v. Wirtz, 366 F.2d 188, 10 Cir.
We recognize that on a motion to dismiss the complaint must be viewed liberally and its averments of fact accepted as true. This Court has given a most liberal consideration to the complaint in the present case, in which McGuire, a layman, is representing himself without the assistance of a lawyer. McGuire made made an earnest and effective oral argument in this Court on his own behalf. Notwithstanding our sympathetic view of the case,
we have no choice except to affirm the District Court.
Affirmed.