Olms interpretative Manual

UNIONREMEDIESMUSTBEINVOKED

1. 
   LMRDA,SECTION402(a)
   

Amember ofa labororganization

1. 
   whohasexhaustedtheremediesavailableundertheconstitutionandbylawsofsuchorganization and ofany parent body, or
   
2. 
   who has invoked such available remedies without obtaining a final decision withinthreecalendar months aftertheir invocation,...
   

473.005EFFECTOF INVOKINGREMEDIES

It would appear that the Congressional intent of section 402 is to give the labororganization itself the initial opportunity to decide whether an election has been properlyconducted under the constitution and bylaws of the labor organization and the Act prior toconferring jurisdiction of the Secretary of Labor.However, if the labor organization has not madea final determination of the complaint filed with it within three calendar months after the internalremedies have been invoked by a member, the complainant may file a complaint with theSecretary of Labor as provided by section 402(a)(2).It thus appears that the provisions of section402(a)(1)and(2)areconditionsprecedenttotheremainingportionsofsection402,whichbecomeapplicableonly after a formalcomplaint has been filed withthe Secretary.

473.007FAILURETO HOLDELECTIONS

Whereaunionhasnot heldanelectionofofficers withinthestatutorymaximumperiod, aunion member must still exhaust his internal remedies as provided in section 402 of the Act, orhave invoked such internal remedies without having obtained a final decision within threecalendarmonths after suchinvocation, before filinga complaint withthe Secretary.

Ifthe union’s ordinary electionappeals proceduresare inappropriate inthis type of

situation, the member’s internal appeal may take the form of a request to the officer or governingbodyoftheunion whichhas powerto order anelection orother appropriateremedialaction.

473.100NOSPECIFICELECTION APPEALSPROCEDURES

In the absence of specific election appeals procedures, section 402 of the Act requires theinvocation of whatever trial and appeal procedure is available under the governing constitutionand bylaws.

473.102REVIEWBY PARENT BODY

Section 402 of the Act requires as a condition of filing a complaint concerning an electionalready held that the complainant shall have taken steps to secure an administrative review fromtheparent body, if sucha reviewis available undertheconstitutionand bylaws ofthe union.

(TechnicalRevisions:Dec.2016)

473.105WAIVERBYPARENTBODY

Where the International Executive Board of a labor organization accepts an electioncomplaintfroma unionmemberwho hasnotfollowed theproperprocedure forexhausting hisinternal union remedies and rejects such complaint on its merits, the International ExecutiveBoardwaivesany righttocomplain aboutthat member’sfailureto followtheprocedure.

(Revised:Dec. 2016)

473.200APPARENTFUTILITY

Under section 402(a), a member’s challenge to an election is timely if it is filed with theSecretary either one month after the member has exhausted all of the union’s remedies under itsconstitution and by-laws or one month after the member has pursued the union’s remedies forthree months without obtaining a final decision. There is no third option permitting a member topursueinternalremediesforlongerthan fourmonthsand thenfilewithout exhaustingallof thembecause the last one, an appeal to the union’s biennial convention, would take a long time. SeeChaov. Local 2568, American Federation of State County and Municipal Employees, No. 06-15769,2007 WL 1686519, 182 LRRM 3149 (E.D. Mich. June11, 2007).

(TechnicalRevisions:Dec. 2016 and Jan. 2021)

473.300SUBSTANTIALCOMPLIANCE WITHAPPEALSPROCEDURE

Where the constitution of an international union provides that an election complaint mustfirstbefiledwithalocal’sSecretary-Treasurer,then appealedtotheJointCouncilofthelocal, andfinally to the international, a complaint made to the Joint Council, with a copy to the Secretary-Treasurer and to the international, properly invoked the internal remedies available, and a timelycomplaint to the Secretary made after no answer had been received from the union within threemonthswould be entertained.

SeeShultzv.Local1291,International Longshoremen’sAssociation,429F.2d592, 598,74
LRRM2726 (3dCir.1970).

(TechnicalRevisions:Dec. 2016 and Jan. 2021)

*473.310APPEAL TOAN EXECUTIVE BOARD

Where the union constitution required that appeals be made to the district executive board,anappealwhich wassent tosome ofthe individualmembers ofthe board,including the

international president, the international executive board member of the district, the board’ssecretary-treasurer, and the board member who represented the complaining member’s division,was deemed to be equivalent to an appeal to the board as an entity. The United States Court ofAppeals for the Sixth Circuit stated that “To hold otherwise would be to impose a technicalburden which would trap practically every union member.” The court also noted that thecomplaining member had explicitly requested in his letter of appeal that the union officials seethat the protest was processed through the proper channels, and that their failure to followinstructionswould notbe usedto frustrate thecomplaining member’scandidacy.


Hodgsonv. District 6,United Mine Workers,474 F.2d 940,945, 72 LRRM 2766(6th Cir. 1973).

(TechnicalRevisions:Dec. 2016)

473.400WHENTHREEMONTH PERIODBEGINS

Thethreemonth periodduring whicha complainantmust waitfor ananswer afterhehasinvoked his internal union remedies and before he may file a valid complaint with the Secretary(unless he receives a final decision) runs from the date the complainant beginsto invoke hisinternalremedies (i.e., bylodging proper complaintwith proper partyin accordancewiththe

union’sconstitution andbylaws).

473.500RESPONSETO COMPLAINANT

A complainant who has filed a protest with the International President with regard to hisname not being placed on the election ballot has not received a final decision with respect to suchprotest by the mere fact that a letter to the local from the International President concerning suchprotest is read at a regular meeting of the local at which said complainant was present. Such aletterdoesnotconstituteareplytothecomplainantforpurposes ofcarryingouthisinternal unionappellate procedure.

473.510UNIONENTITLEDTO3 MONTHS

The fact that more than 14 days have elapsed without any relief having been granted doesnot exhaust the remedies available, if the constitution and bylaws set forth a minimum waitingperiod of at least 14 days, and no maximum. It would appear that the board of directors of theunion must be permitted the minimum statutory time within which to resolve the issue internally,unless it renders a final decision in a shorter time. The complainant must follow through on theexhaustion of his remedies within the union for three calendar months after he initially invokedthem(unlessafinal decisionis reached ina shortertime) before hemay properlyfile acomplaintwiththe Secretary.

473.600TIMELINESSOF COMPLAINT

Because certain members of a local union were declared ineligible for union office, theincumbent officers were unopposed, the executive board of the local then passed a resolution inadvance of the election date declaring that an election was unnecessary and that the incumbentswere elected.Neither the membership nor the disqualified candidates were advised of thisresolution until the previously established election date.The disqualified candidates immediatelyinvoked their post-election internal remedies by a complaint to the local union treasurer, whorefused to refer it to the executive board on the ground that it was not filed within the specifiedperiod after the “election” (i.e., the date of the resolution declaring the incumbents elected), as isrequired by the union’s constitution and bylaws.Appeal was taken to a higher body in the union,butwhennodecisionwasreceivedwithinthreecalendarmonths,thedisqualifiedcandidatesfiledacomplaint with the Secretary withinonecalendar month thereafter.

It is the opinion of this Office that, since complainants were not advised of the so-called“election” (i.e., resolution), they had a right to wait until after the original election date beforeinvokingtheir internalremedies.Their complaint tothe Secretarywastimely.

473.650RIGHTTO PROTESTNOT LIMITED

A clause in the bylaws of a local union provides that any votingmember has the right tochallenge the validity of an election.If this provision is intended to prohibit any other memberfromfilinganinternalprotest regardinganelection,it wouldviolatesection402(a) oftheLMRDA which guarantees every member in good standing, whether he participates in the electionornot, the right to protest hisunion’s election of officers.