Olms interpretative Manual

COMPLAINTTOSECRETARY

1. 
   LMRDA,SECTION402(a)
   

A member . . . may file a complaint with the Secretary within one calendar monththereafterallegingthe violationofany provisionofsection401(including violationof theconstitutionand bylawsof the labor organization pertainingtothe election). . .

2. 
   TIMEFORFILINGCOMPLAINT
   

If the member obtains an unfavorable final decision within three calendar months afterinvoking his available remedies, he must file his complaint within one calendar month afterobtaining the decision. If he has not obtained a final decision within three calendar months, he hasthe option of filing his complaint or of waiting until he has exhausted the available remedieswithin the organization. In the latter case, if the final decision is ultimately unfavorable, he willhaveone month thereafter in whichtofile his complaint.

29CFR 452.135(b)

474.005 ENFORCEMENT PREREQUISITES—COMPLAINT CHARGING VIOLATION OFPROVISIONSOF SECTION 401

Violation of anyof the provisions of section 401 may serve as ground for a complaint filedby a member with the Secretary under section 402, as a prerequisite for suit by him to set aside theelection.

474.100POST-ELECTIONCOMPLAINTMUST GOTHROUGHSECRETARY

Where a union member is seeking a post-election remedy for an alleged improper election,a court has no jurisdiction to try the case where the complaining member has not exhausted hisunionremedies or made application for reliefwith the Secretary of Labor.

SeeLocalNo.82,Furniture&PianoMoving,FurnitureStoreDrivers,Helpers,Warehousemen&Packersv.Crowley, 467U.S. 526, 544-45,116 LRRM2633 (1984);see alsoPorch-Clarkv.
Engelhart,930 F.Supp. 2d928, 195LRRM 2301(N.D. Ill.2013) (statelawclaimschallengingunionelection are preempted by TitleIV ofthe LMRDA).

(TechnicalRevisions:Dec.2016)474.101

A union member brought an action because he was denied the right to be a candidate foroffice, allegedly in violation of the LMRDA. Because of his failure to provide bond, the courtrefused to issue a temporary restraining order to prevent the holding of the election. After theholdingofthe electionthe courtdismissedthe casesayingthatafteranelectionhasbeenheldtheSecretary of Labor has exclusive jurisdiction. For the union member to get relief he must make acomplaint to the Secretary of Labor, who, in turn, must decide whether or not to institute a causeof actionagainstthe union.
Gammonv.InternationalAssociationof Machinists,199 F. Supp.433, 437, 49LRRM 2282 (N.D.
Ga.1961).

(TechnicalRevisions:Dec. 2016)

474.102

Once an election has been held, union members who were denied the right to vote inviolation of the Act can obtain relief only through proper application to the Secretary of Labor.AFederal Court has no jurisdiction to grant post-election relief except at the suit of the Secretary ofLabor.

Acevedov. Bookbinders and Machine Operators Local No. 25 Edition Bookbinders of N.Y. Inc.,196F. Supp. 308,314, 48 LRRM 3005 (S.D.N.Y. 1961).

(TechnicalRevisions:Dec. 2016)

*474.200COMPLAINTBYSUSPENDEDOR EXPELLEDMEMBER

A person who has been suspended or expelled from membership is not necessarily barredfrom filing a complaint under section 402.The Secretary has the authority to examine thecircumstances of the suspension or expulsion.If it is evident that the member was suspended orexpelled in violation of section 101(a)(5), or for exercising or attempting to exercise rightsguaranteedbytheAct, theSecretarymay treattheindividualasamember in goodstandingfor thepurposeof receiving thecomplaint.

474.202ANY MEMBERMAYFILE COMPLAINT

Defendantunion in asuit brought bythe Secretary ofLabor to setaside an electionsoughtdismissal of the action on the grounds that the complaint failed to allege that the complainant waseither a candidate for office or a person deprived of his rights under section 401(e).The court,after specifically finding that the complainant was a member in good standing of the defendantlocal and that hehad been improperly suspended and denied his membership rights at the time ofthecontested election, rejected the defendant’smotion stating:

“... the defendant asks this court to limit the class of complainants in suits of this sort not only tomembers, as the statute requires but to the actual members affected by the alleged wrongfulconduct.If Congress had wished the class of complainants to be so limited, it might have easilyso stated.Instead the statute is framed so as to allow any member of the union involved tocommenceproceedingswith the Secretary of Labor.

“A statutory construction which invites the filing of complaints by all members of the unioninvolved comports with the broad purpose of Title IV of the Labor-Management Reporting andDisclosureAct,whichisto safeguardand improveunion electoralprocesses.”


Wirtzv. Local Union No. 57, 57-A, 57-B, & 57-C, International Union of Operating Engineers,AFL-CIO, 293 F. Supp. 89, 91 (D.R.I. 1968); see also Donovanv. Air Transport, Dist. Lodge No.146,754 F.2d 621, 118 LRRM 2969(5th Cir. 1985) (listing, and agreeingwith,decisions
“permit[ting] members who were not affected by a violation of section 401 to raise and challengethose violations in order to effect Congress's desire to safeguard and improve the union electorialprocess”).

(Revised:Dec. 2016)

474.205EFFECTOFSUSPENSIONOFELECTIONRIGHTSONOTHERMEMBERSHIPRIGHTS

Theaction ofa unionindiscipliningseveral membersby suspensionoftheirelection

rights for two years, while specifically continuing their “good standing” in the union, does notoperate as a bar to the acceptance of an election complaint from such members by the Secretary.Sincethe membersin questionhavenothad theirgood standingsuspended bythe union,they areconsideredto be members for purposes of filing acomplaint.

474.305REMEDIES MUSTBE INVOKEDAFTERELECTION

There is nothing in Title IV of the Act that requires a union member to wait until anelectionhasbeenheldbeforeinvokinginternalremedies.However,oncetheelectioniscompletedthe member must again invoke his internal remedies. Then, if he has either exhausted his internalappeal procedures or has not received a final decision within three months after initiating his post-election complaint, and the member wishes to file a complaint with the Secretary, he mustdo sowithin one calendar month. Failure to file within one calendar month renders a complaintuntimely.

474.400COMPLAINT BYANATTORNEY

Once a member of a labor organization has fulfilled the conditions outlined in sections402(a)(1)and(2) oftheAct,an unqualifiedright tofileacomplaint withthe Secretaryaccrues tohim. The terms of the Act do not appear to prohibit a member from employing an attorney as hisagent to file a written complaint on his behalf after the right to file such complaint has definitelyaccrued to the member by reason of his having satisfied the prerequisites of the aforementionedsection.

474.500COMPLAINT AFTER FOURMONTHS

In the absence of a final decision by the union, a complainant’s formal complaint to theSecretary of Labor was received six months after his initial protest to the local (or two monthsafterthefourmonth appealperiodprovided undersection402(a)(2) oftheAct).Itwas concludedthat, since the complainant had not complied with section 402(a)(2) of the Act, the Departmenthasno enforcement jurisdiction overthe matter.

474.510COMPLAINTMUSTBE RECEIVEDWITHIN ONECALENDARMONTH

The date of receiptof a formal complaint to the Secretary is controlling in decidingwhether or not the complaint has been timely filed.Thus where a complainant invoked hisinternal union remedies on September 26, 1962 and, not having obtained a final decision withinthreecalendarmonthsthereafter,mailedaformalletterofcomplainttotheSecretaryonJanuary25, 1963 which was received on January 28, 1963, it was concluded that the complaint wasuntimelyfiled.

474.520COMPUTINGCALENDARMONTH

For purposes of filing an election complaint with the Secretary of Labor under section402(a)acalendar monthhasbeen held tomean “the time fromany day ofany ofthe months. . . tothe corresponding day (if any; if not to the last day) of the next month.”See Odomv. Odom, 272Ala. 164, 165, 130 So.2d 10, 10 (1961) (quoting Webster’s New International Dictionary); WHDOpinion Letter FLSA2019-13 (Sept. 10, 2019) (and authorities cited therein).Further, it has beenheld thatwherethelast dayforthefiling ofapetitionfallsonaSundayora legalholiday,filingon the next day which is neither a Sunday or a legal holiday, is timely.SeeUnion Nat. Bank ofWichita,Kansasv. Lamb, 337 U.S. 38, 40 (1949).

In one instance the Department accepted a complaint and filed a case on November 27,1963. In this case a union member who received a final decision from his union denying hiselection protest on August 29, 1963, mailed his complaint pursuant to section 402(a) to theSecretary by regularmail on the evening of September 26, 1963, from Sparks, Nevada. The letterwasreceived by theDepartment by, at least,Monday, September 30, 1963,31 days after the
complainant had received his union’s final decision.The Department might have received theletteronSunday, September29, 1963since mailwas deliveredon thatday butwas notprocessed,i.e., dated, and there was no way to identify a particular piece of mail with respect to whether itwasreceived on Sunday or Monday.

However, in view of the rule of law stated above, it was irrelevant whether the letter wasreceived on September 29, 1963, which was a Sunday, or September 30, 1963, since, inaccordance with the Lambrule, the time for filing in this case ends on Monday, by which day thecomplaintwasdefinitelyreceived.Therefore,thecomplaintwasheldtobetimelybecause receiptonMonday would comewithin the calendar month.

SeeWirtzv. Local Union 169, International Hod Carriers’, Building and Common Laborers’Union,246 F. Supp. 741, 750-51, 60 LRRM 2540(D. Nev. 1965).

(Revised:Dec. 2016 andJan. 2021)

474.530COMPLAINT AFTERRECEIPT OFFINALUNIONRULING

At a nominating convention prior to an election, a union member protested a constitutionalprovision making payment of quarterly dues in advance for one year a condition of eligibility foroffice.The unionrejected the protest.The member thenbrought aprivate suit, underTitleI, to

enjoin the holding of the election. The District Court rejected the member’s request for aninjunction and ruled adversely on the merit of his contention. (The Court of Appeals laterdismissedthe pre-election complaint for want of jurisdiction.)

After the election, the member again invoked his internal remedies to protest theconstitutional provision. After he received a final answer rejecting his post-election protest, hefiled a complaint with the Secretary. The Secretary sued to set aside the election.Defendant unionmovedtodismissonthegroundsthatthecomplaintwasnotfiledwithinonecalendarmonthofthe denial of the pre-election protest by the union and/or the decision of the District Court.Itargued that one or the other of those actions was a final disposition of the matter and furthercomplainttothe union afterthe election was unnecessary.

The court held that a member must pursue every opportunity to allow the union to settle agrievance internally before coming to the Secretary and that he may not be penalized for so doing.Since the complaint was filed with the Secretary within one calendar month after complainantreceiveda finalanswerrejectinghispost-electionprotest, thecourt heldthat itwas timelyfiled.

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

(TechnicalRevisions:Dec. 2016)