Olms interpretative Manual

SUITBYSECRETARY

1. 
   LMRDA,SECTION402(b)FILINGSUIT
   

TheSecretaryshallinvestigateamember’stimelycomplaintchallenginganelection.IftheSecretary “finds probable cause to believe that a violation of this title has occurred and has notbeen remedied, he shall, within sixty days after the filing of such complaint, bring a civil actionagainst the labor organization as an entity in the district court of the United States in which suchlabor organization maintains its principal office to set aside the invalid election, if any, and todirect the conduct of an election or hearing and vote upon the removal of officers under thesupervision of the Secretary and in accordance with the provisions of this title and such rules andregulationsas the Secretarymay prescribe.”29U.S.C. 482(b).

(Revised:Jan.2021;Technical Revisions:Dec.2016)

2. 
   VIOLATION“MAYHAVEAFFECTEDTHEOUTCOME”
   

TheSecretarywillnotinstitutecourtproceedingsuponthebasisofacomplaint allegingviolations unless he finds probable cause to believe that the violation “may have affected theoutcomeof an election.”

29CFR 452.136(b)

*476.005SCOPEOFSECRETARY’SCOMPLAINT

Basedon a rulingby theU.S.SupremeCourt, OLMSelection regulations statethat in an

enforcementactionincourt,theSecretary’scomplaint“maynotinclude...aviolationwhichwasknown to the protesting member but was not raised in the member’s protest to the union.” Theregulations further provide that “[c]omplaints filed by the Department of Labor will accordinglybe limited . . . to the matters which may fairly be deemed to be within the scope of the member’sinternal protest and those which investigation discloses [member] could not have been aware of.”29 CFR §452.136(b-1) (relying on Hodgsonv. Local Union 6799, USW, 403 U.S. 333, 77 LRRM2497 (1971).

With regard to the part of this standard referring to violations known to the protestingmember but not raised to the union, the violation(s) in the Secretary’s complaint do not have tohave the same focus as the member’s internal protest to the union. As long as the member’sprotestshouldhave madeit discernibletotheunion thatoneormore possibleviolations wereat

issue,thoseviolationscanbeincludedintheSecretary’scomplaint.SeeLocalUnion6799,USW,403U.S. at341 (“courtsshould imposeaheavyburdenon theunion toshowthatit could notin
anywaydiscernthatamemberwascomplainingoftheviolationinquestion”).

Turningtothepartofthestandardapplyingtoanyviolation(s)that“investigationdiscloses[the member] could not have been aware of,” OLMS most recent LMRDA Election Issue Guide,followingtheSixthCircuitCourtofAppeals’decisioninBrockv.OperatingEng'rsLocal369,

790F.2d508,22LRRM2518(6thCir.1986),providesfurtherdetailsforthattest.TheGuidestates that “any violation which was not protested to the union” cannot be included in theSecretary’s complaint “if: 1) the facts of the violation were generally known; and 2) anyreasonableinvestigationby the complainant could have revealed the violation.”

(Revised:Dec. 2016 andJan. 2021)

476.100DISCRETION TOFILE SUIT

The U.S. Supreme Court held in Dunlopv. Bachowski, 421 U.S. 560, 89 LRRM 2435(1975), that a decision by the Secretary not to file suit in a Title IV case is subject to review underthe Administrative Procedure Act.However, the Court established a special standard for reviewof such decisions.First, the Court held that the Secretary must provide to the complaining unionmember and to the court copies of a “statement of reasons” for deciding against bringing alawsuit.Second, the Court ruled, the reviewing Court should review only that statement ofreasonstodeterminewhethertheSecretary’swas“soirrational”thatitwas“arbitraryand

capricious.”Only if that standard is met should the court order the Secretary to bring a courtactionto seek a supervised election.SeeBachowski, 421 U.S.at 571-73.

ThedistrictcourthasjurisdictiontoreviewtheSecretary’sdecisionanddeterminewhetherit is arbitrary, capricious, abuse of discretion, or otherwise not in accordance with law under theAdministrativeProcedure Act.However, thisreviewdoesnotextend toa trial-typeinquiry into

the factual bases for the Secretary’s decision. The Secretary must provide the court and thecomplaining union member with a statement of reasons supporting his determination, and thecourt’sreviewisconfinedtoexaminingthestatementanddeterminingwhethertheSecretary’s
decisionissoirrational astoconstitutethe decisionarbitraryandcapricious. Id.at566,571-73.

(Revised:Dec. 2016 andJan. 2021)

476.110DELEGATEELECTION

In an election where delegates are the only ones who can make nominations, a civil suitmay be instituted by the Department if there is evidence that properly elected delegates who werenot seated would have placed one or more additional names in nomination.It is not necessary toshowthattheelectionoutcomewasactuallyaffectedbeforetheDepartmentmaytakelegalaction.SeeChaov. AmalgamatedTransit Union, AFL-CIO,141 F.Supp.2d 13,24, 67 LRRM 2516

(D.D.C.2001).

(TechnicalRevisions:Dec. 2016)

476.200CASEFILEDSIXTY-TWODAYS AFTERCOMPLAINT

The Secretary of Labor brought an action against defendant union, Local 611, HodCarriers,undersection402(b)sixty-two daysafterthefilingofthecomplaint.Defendant movedfor a summary judgment based on the claim that the time to bring an action under section 402(b)(i.e., 60 days after the filing of the complaint) operates as a statute of limitations upon theSecretary.

In denying the defendant’s motion for summary judgment, the Court held that although theSecretary of Labor filed his complaint in court on the 62nd day, it was a timely complaint becausethe60th dayfellon a Sundayand the 61stday was a legalholiday when thecourts were closed.

Rule6oftheFederalRulesofCivilProcedureprovidesthatundersuchcircumstances“theperiod runs until the end of the next day which is not a Saturday, Sunday or a legal holiday.”TheCourt stated that section 402(b) was passed after the adoption of Rule 6 and contains no speciallanguage totakeitoutof theoperationofthatrule,andthatcourtsgenerallyapplyRule6liberally.

The Court further held that the language of section 402(b) is not the usual language of astatute of limitations but is rather directory to the Secretary of Labor which, under certaincircumstances,he is requiredto follow.

Wirtzv. Local 611, International Hod Carriers’, Building and Common Laborers’ Union, 229 F.Supp.230, 56 LRRM 22388 (D. Conn. 1964).

(TechnicalRevisions:Dec. 2016)

476.210DELAYINFILING SUITCAUSED BYUNION

In an action brought by the Secretary of Labor to set aside an election, defendant unionmoved for dismissal on the ground that the suit filed by the Secretary was untimely since it hadnot been filed within sixty days after the complaint was received as provided in section 402(b) ofthe Act.The complaint was received on August 12, 1964, and suit filed on November 9, 1964, or28days later than thesixty days provided by section 402(b).

Duringinvestigationofthecomplaint,theSecretaryhadrequestedcertaininformationandrecords from the union.When the union refused to comply with the request, the Secretary issueda subpoena duces tecum. The union did not comply with the subpoena until the Secretary startedan enforcementaction.

The court held that the time lost as a result of the union’s delay in making the informationrequested by the Secretary available would not be counted as part of the sixty days; therefore thesuit wastimely filed.

Wirtzv. Great Lakes Dist. Local No. 47, International Organization of Masters, Mates and Pilots,240F. Supp. 859, 862, 59 LRRM 2085 (N.D. Ohio 1965).

(TechnicalRevisions:Dec. 2016)

476.400JURYTRIAL UNDER SECTION402

Action brought by Secretary of Labor under 402(b) of the LMRDA to set aside an electionheld by defendant union.Defendant demanded jury trial and plaintiff moved to strike thisdemand.Issue was whether in judicial proceedings brought under 402(b) and (c), the parties areentitled to a jury trial.Answer depends upon whether the parties have a constitutional right underthe Seventh Amendment and Rule 38 to a jury trial, or whether the right has been given to themby afederalstatute.

Theconventionaltestfordeterminingwhether aparty hasa constitutionalright totrialbyjury is whether he was entitled to have the issue tried by a jury at common law.In the instantcase, the basic relief sought by the plaintiff is an injunction, and as such, the matter is equitableand there is no right to a jury trial.A court may not, in a case where both legal and equitableissues are involved, dispose of the equitable issues in such a manner as to deprive the parties oftheirright toa trial byjury on thelegal issues.Inthe instantcase, thereliefsought is purely

equitableandinvolvesnolegalissues andnoclaimformoneydamages.

Since defendant union is not entitled to trial by jury under the Seventh Amendment, thequestionremains whetherCongress,bystatute, hasgranted thatright tothe defendant.Section402contains no express reference to trial by jury. Where Congress has intended trial by jury undercircumstanceswhere theright was notconstitutionally guaranteed, ithasexpresslysoprovided.

SinceCongressreferredto“theCourt”insection402(b)and(c)severaltimes,butdid notrefertoa “jury,” Congress did not intend to grant the right to trial by jury as demanded by defendantunion.


Wirtzv. District Council No. 21, Brotherhood of Painters, Decorators, and Paperhangers, 211 F.Supp. 253, 255, 51 LRRM 2591 (E.D. Pa. 1962); see also Wirtzv. National Maritime Union ofAmerica,399 F.2d 544, 8 LRRM 3017 (2d Cir 1968).

(TechnicalRevisions:Dec. 2016)

476.500INTERVENTIONBY UNION MEMBERS

Aunionmemberwhosubmittedanelection complainttotheSecretarymayalso interveneinthe Secretary’scourtactionagainsttheunion underTitle IVsolong asthat interventionis

limitedtotheclaimsofillegalitypresentedbytheSecretary’scomplaint.Theinterveningunionmember may present evidence and argument in support of the Secretary's complaint and assist thecourtin shaping a remedial order. See Trbovichv.United Mine Workers, 404 U.S. 528, 79LRRM 2193 (1972).Further, when a court finds that the intervention provided substantial benefittotheunion’smembership,thecourtmayawardtheintervenorattorneys’fees.See,e.g.Donovan
v. Teamsters Local 70, 661 F.2d 1199, 108 LRRM 3133 (9th Cir. 1981); Brennanv. UnitedSteelworkers, 554 F.2d 586, 95 LRRM 2178 (3rd Cir. 1977), cert. denied435 U.S. 977, 97 LRRM3238 (1978); Useryv. Teamsters Local 639, 543 F.2d 369, 93 LRRM 2113 (D.C. Cir. 1976), cert.denied429U.S. 1123, 94 LRRM 2643 (1977).

Federal courts of appeal have divided over whether, in an action by the Secretary for acourt to certify the results of a supervised election, an unsuccessful candidate may intervene.Compare Donovanv. Westside Local 174, United Auto. Workers, 783 F.2d 616, 121 LRRM 2881(6thCir.1986);Useryv.Teamsters Local 639,543 F.2d 369, 377, 93 LRRM2113

(D.C.Cir.1976), cert.denied, 429U.S. 1123,94 LRRM2643 (1977);Hodgsonv. Carpenters
Resilient Flooring Local Union No. 2212, 457 F.2d 1364, 1370, 79 LRRM 3046 (3rd Cir.1972)(permitting such intervention) with Useryv. District No. 22, United Mine Workers of America,567 F.2d 972, 97 LRRM 2357 (10th Cir.1978) and Brennanv. Silvergate District Lodge No. 50,Int'l Ass'n of Machinists, 503 F.2d 800, 87 LRRM 2935 (9th Cir.1974) (denying suchintervention).

(Revised:Dec. 2016 andJan. 2021)