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February 26, 1962

Arthur J. GOLDBERG, Secretary of Labor, United States Department of Labor, Plaintiff,
AMALGAMATED LOCAL UNION NO. 355, An Unincorporated Association, Defendant

The opinion of the court was delivered by: MISHLER

Motion by plaintiff to strike out affirmative defense pursuant to Rule 12(f) of the Federal Rules of Civil Procedure, 28 U.S.C.A., i.e., that the affirmative defense is insufficient in law or immaterial, impertinent or redundant.

This action is brought by the Secretary of Labor against defendant local labor organization, pursuant to Section 402(b) of the Labor-Management Reporting and Disclosure Act of 1959 (LMRDA), 73 Stat. 534, 29 U.S.C.A. § 482(b). *fn1" The claim states that there is probable cause to believe that in violation of Sections 401(b) and 401(e) of the LMRDA *fn2" (29 U.S.C.A. §§ 481(b) and 481(e)) and defendant's constitution and by-laws, '* * * defendant has failed to hold an election of its union officers within the time prescribed * * *' (paragraph VI of complaint).

 Defendant's answer denies all the material allegations of the complaint and affirmatively alleges that officers were duly nominated at a meeting on November 4, 1961, and said officers were duly elected on December 2, 1961; that if in fact a violation had existed, it was remedied prior to the institution of the action.

 In its affidavit the defendant concedes that it erroneously stated the election was held prior to the commencement of this action, since the complaint was filed on November 28, 1961. *fn3" The affidavit further states that only members nominated on November 4th were eligible for election under its constitution, so that nomination was tantamount to election since only one member was nominated to each office.

 The affidavit in support of the motion defines the violation alleged in the complaint as the failure '* * * to hold an election of its union officers within three years, in violation of its constitution and by laws.' Though the complant does not so allege the violation, it is nevertheless determined by the LMRDA that elections must be held '* * * not less often than once every three years * * *.'

 It would be an answer to the complaint that an election had in fact been held within the three-year period provided by § 401(b) of the LMRDA, or such lesser period of time as provided by the constitution and by-laws of the defendant local labor organization (which defense could here be proved under the general denial). Is it an answer to such a charge that the violation was cured before the action was instituted though held after the three-year period (or lesser period provided by its constitution and by-laws)? I think not.

 Under § 402(b) the Secretary upon finding probable cause that a violation has occurred is charged with the duty of bringing an action '* * * to set aside the invalid election, if any * * *'. Section § 402(a) characterizes a 'challenged election' as one based on a complaint filed with the Secretary '* * * alleging the violation of any provision of section 401 * * * (including violation of the constitution and bylaws of the labor organization pertaining to the election and removal of officers). * * *'

 The purpose of providing for frequent elections is '* * * to insure that the officials * * * are responsive to the desires of the men and women whom they represent. The best assurance which can be given is a legal guaranty of free and periodic elections.' *fn4" In carrying out this objective it would appear that where elections were not held within the maximum three-year period (or as provided by the constitution) the investigation by the Secretary and the intervention by the courts would seem appropriate even if in the meantime the election were held. In the procedure fashioned by Congress to insure functioning of democratic processes within a labor organization, Congress charged the Secretary of Labor with the duty of investigating violations under § 401. Only after the member of the labor organization has exhausted the remedies available to him under the constitution and by-laws of the labor organization, and has not received a decision from it within three months, then upon filing a complaint with the Secretary (which must be done within one month after the expiration of the aforementioned three-month period), ( § 402 LMRDA) does the right accrue to the Secretary of Labor. The filing of the complaint under the procedure outlined by Congress sets in operation the governmental machinery. To that point, the LMRDA gives the labor organization the opportunity to correct and remedy the violations. Beyond that point, the right of the government to investigate the breakdown of the democratic processes is clear. It is not within the power of the labor union to deprive the government of its right by compliance. The interest of the public goes beyond adherence to the form. The interest of the public has been called into play by the failure of the local union to act. The substantial right of the Secretary cannot be capriciously brushed aside.

 The courts are reluctant to strike out pleadings. Only where it appears that the pleading bears no relationship to the litigation and is prejudicial, is relief granted under Rule 12(f). *fn5" To allow the defense to remain in the answer would confuse the issues and thereby prejudice the plaintiff.

 Motion granted. Settle order on two days notice.

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