The opinion of the court was delivered by: MOTLEY
MEMORANDUM OPINION ON MOTION FOR SUMMARY JUDGMENT
This action was brought by the Secretary of Labor of the United States Department of Labor pursuant to Section 402 of the Labor Management Reporting and Disclosure Act ("LMRDA"), 29 U.S.C. § 482. In the complaint, plaintiff alleges that the defendant union during the course of its 1971 election of officers committed various violations of Section 401 of the LMRDA, 29 U.S.C. § 481, which therefore require that the election be overturned. Accordingly, the complaint asks that this court void the 1971 election of officers of the International Organization of Masters, Mates and Pilots ("IOMM & P") and order a new election subject to the supervision of the Secretary of Labor.
While the complaint alleges a number of violations of 29 U.S.C. § 481, for purposes of the instant motion for summary judgment plaintiff has limited consideration to five claimed violations:
1) The preparation and August 19, 1971 mailing by the IOMM & P of the "60th Convention Newsletter on the Resolution of Affiliation of the IOMM & P with the ILA" ("Newsletter"), which plaintiff contends constituted campaign literature prepared in violation of 29 U.S.C. § 481(g) and distributed in violation of 29 U.S.C. § 481(c);
2) The preparation and November 26, 1971 mailing by the IOMM & P of another document entitled "All Constitutional Amendments and Resolution of the 60th Convention Ratified -- Affiliation of IOMM & P as the International Maritime Division of the ILA (AFL-CIO) Affirmed," which plaintiff similarly contends to be campaign literature distributed in violation of 29 U.S.C. §§ 481(c) and 481(g);
3) The election procedure followed in the 1971 election of the IOMM & P Offshore Division Vice-Presidents for the Atlantic and Gulf areas, which allegedly, in violation of various provisions in 29 U.S.C. § 481(e), prohibited many members in the Offshore Division's Atlantic and Gulf areas from participating in any way in the selection of said two Vice-Presidents;
4) The failure to mail ballots within 30 days after the close of nominations for the International and Offshore Division offices in the 1971 action, contrary to Article V, Section 8(d) of the IOMM & P Constitution, and therefore contrary to 29 U.S.C. § 481(e) of the LMRDA which provides that an "election shall be conducted in accordance with the constitution and bylaws of [the labor union] insofar as they are not inconsistent with the provisions of this subchapter;" and
5) The failure on the part of Local 88 (now the Port of New York) to comply with its bylaw that "[a] certified mailing list of all members of Local 88 shall be made available at cost to all candidates, provided however that any postage charges shall not be billed to this organization," which, if proven, also constitutes a 29 U.S.C. § 481(e) violation, as in item 4 above.
Defendant in turn has itself moved for summary judgment or, in the alternative, for partial summary judgment. The union's independent motion for summary judgment seeks to dismiss the complaint on the ground that it is moot, in view of the intervening election conducted by the defendant in 1974
and the facts and circumstances surrounding such election. This is also the position taken by amici curiae Frank T. Scavo, Gerald Johnson and Timothy Brown, who, as candidates in the 1974 election, challenged the incumbents who had been elected in 1971, with the result that Scavo and Johnson replaced such incumbents in the position of President and Executive Vice-President of the IOMM & P.
Defendant's alternative motion for partial summary judgment seeks dismissal of certain alleged violations of 29 U.S.C. § 481 described in the plaintiff's complaint, but not urged by him in his motion for summary judgment currently under consideration. In addition, defendant has cross moved for summary judgment as to the violation alleged to have occurred in connection with the 1971 election of the IOMM & P Offshore Division Vice-Presidents for the Atlantic and Gulf areas.
For the reasons set out below, this court has decided to grant plaintiff's motion for summary judgment, thereby voiding the 1971 election of IOMM & P officers, and accordingly orders that a new election be held under the supervision of the Secretary of Labor. Defendant's motions are in effect thereby mooted. In reaching this conclusion, the court has had to make a series of preliminary determinations which will now be considered seriatim.
A threshold question raised by defendant is whether or not union members who complained to the Secretary of Labor regarding the 1971 election, thereby triggering this action, properly fulfilled the exhaustion of remedies requirements set out in 29 U.S.C. § 482. Section 482(a) requires a complaining union member to file his complaint with the Secretary within one month of having exhausted remedies available under the constitution and bylaws of the union or within one month after invoking the available remedies without obtaining a final decision within three months after their initial invocation. In the instant case, 16 complaining members, through their attorney, Burton Hall, wrote to the General Executive Board, the final appellate body of the union, setting forth their complaints on January 19, 1972. The General Executive Board met on January 25 and 26, 1972 to consider these appeals, and by letter of February 29, 1972, postmarked that date and received March 2, 1972, the union advised the complaining members through Burton Hall that their appeals had been denied on January 26, 1972. The members thereafter filed their complaints with the Secretary on March 29, 1972, within one month of the mailing and receipt of the February 29, 1972 letter.
Defendant now contends that the complaints should have been filed with the Secretary by February 26, 1972, one month after the actual decision by the General Executive Board. Defendant alleges that the complainants were aware that the General Executive Board was meeting on January 25 and 26, and therefore implies that they knew or should have known that some action was taken on their complaints at that time. Defendant does not allege that complainants actually were notified. Given these circumstances, the court finds that the complainants cannot be held to have exhausted all internal remedies until actual formal notification that the appeal was denied. To decide otherwise would place an undue burden on those invoking the protections afforded under 29 U.S.C. § 482. A union -- as did defendant union here -- could hold off notifying complainants of a disposition in their case until after a month had elapsed, thereby precluding them from bringing such action to the Secretary of Labor, unless through their own efforts they had discovered and acted upon the union's disposition. Certainly such a procedure does not comply with the Supreme Court's mandate that "unions [are] expected to provide responsible and responsive procedures for investigating and redressing members' election grievances." Wirtz v. Local No. 125, Laborers' International Union, 389 U.S. 477, 484, 88 S. Ct. 639, 642, 19 L. Ed. 2d 716 (1968). Nor does it comport with the admonition of the Second Circuit, in affirming a decision rendered by this court, that "procedural perversion of the exhaustion requirements of § 402(a) will not be permitted." Hodgson v. Liquor Salesmen's Union, Local No. 2 of State of N. Y., 444 F.2d 1344, 1350 (2d Cir. 1971). In that case, defeated candidates were held to have successfully exhausted their remedies, though through circumstances beyond their control -- a mail strike -- they had been unable to file an appeal with the union within the brief time allotted by the union constitution.
In Shultz v. Radio Officers' Union of United Telegraph Workers, 344 F. Supp. 58 (S.D.N.Y.1972), Judge Pierce was faced with a situation analogous to the present action. In that case, defendant union argued that the complainant had not timely filed his complaint ("intention to appeal") with the union within 10 days as a union constitutional provision required. The union argued that the complainant's December 26, 1969 appeal was untimely because the election ballots had been counted December 1, 1969. The complainant argued that he had not been made fully aware of the final results until December 26, 1969. While the court ultimately found the 10 day provision to be inapplicable, it went on to find the complaint timely filed under such provision nevertheless. Judge Pierce specifically found that the union "did not communicate this information [election results] to [the complainant] in formal notice at any time prior to December 26, 1969." 344 F. Supp. at 67. He noted that "[the] responsibility for Smith's [the complainant] lack of knowledge of the election results rests with the ROU [the union]. Thus the defendant failed to trigger the running of the 10 day period. . . ." 344 F. Supp. at 67.
In the instant case, the running of the one month period prescribed in 29 U.S.C. § 482 was similarly triggered by the letter of February 29, 1972, notifying complainants of the General Executive Board's decision. A complaint was filed with the Secretary of Labor within one month ...