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03/08/74 Peter J. Brennan, v. Local Union No. 639

March 8, 1974





No. 73-1938 1974.CDC.50

Appeal from the United States District Court for the District of Columbia.


Robb and Wilkey, Circuit Judges and Van Pelt,* United States Senior District Judge for the District of Nebraska. Robb, Circuit Judge, dissenting.


Local Union No. 639, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Inc. (hereinafter the Union) appeals from an order of the district court granting summary judgment to the Secretary of Labor (hereinafter the Secretary) and two members of the Union, Daniel George and Phillip A. Feaster. The action was originally brought by the Secretary against the Union under the Labor-Management Reporting and Disclosure Act of 1959, as amended (hereinafter the Act) to set aside an election of officers held by the Union on January 23, 1972. The complaint alleged that the Union violated § 401(e) of the Act *fn1 by failing to mail notice of the election to each member of the Union at his last known home address at least fifteen days prior to the election and by imposing an unlawful meeting attendance requirement on candidates for office. *fn2 After the action was filed, two members of the Union who had complained of the conduct of the election to the Secretary *fn3 were allowed to intervene in the suit.

On June 8, 1973, the intervenors moved for a summary judgment under Rule 56 of the Federal Rules of Civil Procedure. On June 26, the Union noticed the deposition of the Secretary or his designee. On July 10, the Secretary filed a motion for summary judgment on the same grounds as the intervenors. On July 13, the Secretary filed a motion for a protective order under Rule 26(c) of the Federal Rules of Civil Procedure which was granted on July 17 despite the objections of the Union. On August 17, after an extensive oral argument the district court granted the motions for summary judgment saying:

"The Court finds that there is no dispute of the fact that out of 6,487 members of the union, notice of the '72 election was mailed only at a maximum to 2,700 of them; that this is a clear violation of 29 U.S.C. 481(e); that under the circumstances where 58 percent of the membership did not receive the statutory notice and where only 23 percent of the membership voted, the Court is entitled to conclude irrebutably that the election was effected thereby.

"I shall, therefore, grant summary judgment to the plaintiff, declare the election null and void, order a new election, order costs for the plaintiff, and deny the defendant's motion to dismiss." *fn4

On August 21, the district court entered an order directing a new election under the supervision of the Secretary and further directing that no meeting attendance requirement be imposed on the right of members to be candidates.

The issues on appeal are: 1) Is it permissible to grant a summary judgment under § 402(c) of the Act; 2) If a summary judgment is permissible under the Act, was it proper in the factual context of this case; 3) Was the directive of the district judge prohibiting the application of the meeting attendance requirement proper; 4) Was the protective order proper? For the reasons given below, we affirm the order of the district court. I. THE PROPRIETY OF A SUMMARY JUDGMENT UNDER § 402(c).

Section 402(c) *fn5 of the Act grants the Secretary the authority to bring a civil action against a labor organization if, after investigating a complaint by a member of that organization who has exhausted his internal remedies, he finds that there is probable cause to believe that the organization has violated any of the election procedures specified in § 401. Section 402 also provides that:

"If, upon a preponderance of the evidence after a trial upon the merits, the court finds--

. . . . that the violation of section 401 may have affected the outcome of an election, the court shall declare the election, if any, to be void and direct the conduct of a new election under [the] supervision of the Secretary and, so far as lawful and practicable, in conformity with the constitution and bylaws of the labor organization." (Emphasis added)

The Union argues that the statute specifically requires a trial and that summary judgment is improper when the crucial facts are contested. In addition, it argues that the clear import of Wirtz v. Hotel, Motel & Club Employees Union, Local 6, 391 U.S. 492, 20 L. Ed. 2d 763, 88 S. Ct. 1743 (1968), (hereinafter Wirtz v. Local 6) is that § 402 requires a trial on the merits in every case.

In only one case, Hodgson v. District 5, U.M.W., 55 F.R.D. 227, 68 L.C. para. 12,867 (W.D. Pa. 1972), has a court read the language of § 402 literally and held that under no circumstances could the Secretary be granted a summary judgment in an action brought under that section. In that case, the court, in denying the Secretary's motion for summary judgment, quoted § 402(c) and stated, "We interpret the foregoing language in the Act to require a trial before we can decide whether or not to grant relief requested in the complaint." (Emphasis in original) The court, reasoning that, "Congress must have had some reason for incorporating this provision in the Act," held that § 402(c) requires a trial in all actions brought under it.

Several other courts, however, have granted summary judgments to the Secretary in action brought under § 402. In Hodgson v. District 6, U.M.W., 474 F.2d 940 (6th Cir. 1972), the court, in reversing the district court which had granted summary judgment to the union, held that the complainant had exhausted his internal union remedies and that the rule which had barred his candidacy was an unreasonable rule in violation of § 401(e) and granted summary judgment to the Secretary. In Schultz v. Independent Employees Union, 62 L.C. para. 10,869 (E.D. Wis. 1970), the court granted judgment to the Secretary after holding a hearing. The facts in this case were very similar to those in the instant case and involved the failure to mail notice of an election to the members of the union. In addition, in Wirtz v. Local 1622, Carpenters, 285 F. Supp. 455 ...

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