Olms interpretative Manual

REMEDIALACTION

475.400 COMPLIANCEAFTERCOMPLAINTFILEDWITHSECRETARY

The United States District Court for the Eastern District of New York ruled on February26,1962,that, inanaction broughtbythe SecretaryofLabor undersection402(b) oftheLMRDAcharging that a Local Union did not hold an election within the period of time required by itsconstitution, it is not a sufficient affirmative defense that the Union has since held an election, iftheelectionwas held after a complaint was filedwith the Secretary.

Thecourtsays:

“It would be an answer to the complaint that an election had in fact been held within the three-yearperiod provided by Sec. 401(b) of the LMRDA; or such lesser period of time as provided by theconstitution and by-laws of the defendant local labor organization ... Is it an answer to such acharge that the violation was cured before the action was instituted though held after the three-yearperiod (or lesser period providedby its constitutionandby-laws)?I think not.

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“The filing of the complaint (with the Secretary) under the procedure outlined by Congress sets inoperation the governmental machinery. To that point the LMRDA gives the labor organization theopportunitytocorrectandremedythe violations.Beyondthat point,theright ofthegovernment toinvestigatethe breakdownofthe democraticprocessesisclear. Itisnotwithin thepower ofthe
labor uniontodeprivethe governmentofitsrightby compliance.”


Goldbergv. Amalgamated Local Union No. 355, 202 F.Supp. 844, 846, 49 LRRM 2715(E.D.N.Y. 1962); see also Hodgsonv. Bakery & Confectionery Workers Local 400, 491 F.2d1348,1353,85LRRM226773(9thCir. 1974)(“TheSecretary'srighttothestatutoryremedyof asupervisedelectioncannotbedefeatedbyanysubsequentindependentactionoftheunion”).Cf.
McLaughlinv. Lodge 647, International Brotherhood of Boilermakers, Iron Ship Builders,Blacksmiths Forgers & Helpers, 876 F.2d 648, 131 LRRM 2529 (8th Cir.1989) (holding thatdistrict court had authority to refuse to order a supervised election because of an “intervening,untaintedelection” conducted by theunion).

(Revised:Dec. 2016)

475.420 INTERNATIONAL’SRIGHTTOVOIDELECTION

While a court must find that a violation of section 401 may have affected the outcome ofan election in litigation brought by the Secretary before the election can be set aside, aninternational union is not subject to such a restriction, but has the right to set aside electionswithoutreferenceto theeffectof aviolationon theoutcome,provided, thatthisisinaccordwithitsconstitutionandbylawsandthatthesamepracticeisfollowedinallsimilarelectionappeals.