Maris, Freedman and Seitz, Circuit Judges.
This action was brought by the Secretary of Labor under Title IV of the Labor-Management Reporting and Disclosure Act*fn1 to declare invalid an election in which Abdullah Ahmed Bey, the complaining union member,*fn2 was defeated for the presidency of Local 1291, International Longshoremen's Association, and to require a new election supervised by the Secretary. Section 401(e) of the Act*fn3 provides that "every member in good standing shall be eligible to be a candidate and to hold office (subject . . . to reasonable qualifications uniformly imposed) . . . ." The suit charges, inter alia, that Rule 3(c)(3) of the Local's by-laws violated § 401(e) by imposing racial qualifications for office.*fn4 Rule 3(c)(3) provides:
"In accordance with tradition heretofore observed, the president shall be of the colored race, vice president, white, recording secretary, white, financial secretary, colored, ass't financial secretary, white, 4 business agents equally proportioned, 3 trustees (auditors) 1 white & 2 colored, 2 sergeants at arms, 1 colored and 1 white."
The district court, relying on our decision in Wirtz v. Local 153, Glass Bottle Blowers Ass'n, 372 F.2d 86 (3 Cir. 1966), originally dismissed the action as moot because a later election had meantime intervened. When the Supreme Court reversed our decision in Local 153 (389 U.S. 463, 88 S. Ct. 643, 19 L. Ed. 2d 705 (1968)), we remanded this case, which was then before us on appeal, to the district court for further proceedings. On remand the district court after a hearing dismissed the action without reaching the merits*fn5 on the ground that Bey had not exhausted his internal union remedies as required by § 402(a) of the Act (29 U.S.C. § 482(a)).
Bey, a candidate nominated for the presidency of the Local, was defeated by Richard I. Askew in an election held on December 10, 1963. On December 17, 1963, he filed a complaint with the president of the Local claiming, inter alia,*fn6 that the election was invalid because of Rule 3(c) (3).*fn7
A hearing was held at which Bey appeared before the Local's Executive Board. The Board advised him on February 3, 1964, that it rejected his complaint and then referred it to the membership of the Local. Bey appeared before the membership, which voted to sustain the Board's decision. The date of the membership action does not appear, but on February 8, 1964, within a few days of the meeting, Bey sent a letter to the president of the Philadelphia District Council, which he intended as an appeal from the decision of the Local. He asked the District Council if it decided his appeal against him to "forward" the appeal to the Atlantic Coast District of the union, evidently the next higher unit of the I.L.A.
Bey heard nothing from the District Council concerning his appeal, and therefore on March 26, 1964, made his complaint to the Department of Labor pursuant to § 402(a) of the Act, which authorizes the filing of a complaint with the Secretary of Labor for any alleged violations of § 401. On April 10, 1964, he received a letter from Joseph S. Kane, secretary of the District Council, stating that the president of the District Council had not informed him of Bey's letter of appeal, of which he had learned the day before from the Department of Labor. He offered Bey an immediate hearing before the District Council, but Bey made no reply. On May 25, 1964, the Secretary of Labor instituted this action.
The district court held that Bey had not properly invoked the remedies available to him under the union's constitution for a number of reasons: (1) He should have either (a) appealed directly to the highest union authority, by-passing all intermediate appeals, in order to obtain a final decision before the expiration of the three-month period, or (b) he should not have remained quiescent during the District Council's inaction but should have appealed its inaction to the International's Executive Council in order to obtain its final decision within three months; and (2) his appeal to the District Council was ineffective because he sent it to the president instead of the secretary.
The statute authorizes a union member to file a complaint with the Secretary within one calendar month after he has either (a) exhausted the remedies available under the constitution and by-laws of the union, or (2) invoked the available remedies without obtaining a final decision within three calendar months.*fn8
It is clear that Bey did not exhaust all his union remedies as required under the first alternative. The full process of appeal under the constitution and by-laws would have taken him to the I.L.A. Executive Council and perhaps even to the Convention of the union.*fn9 The question therefore is whether he invoked the available remedies without obtaining a final decision within three calendar months and thus came within the second alternative.
1. The two alternative provisions of § 402(a) illustrate the distinction between requirements of exhaustion and invocation of remedies. The first alternative is one of direct exhaustion of the remedies available under the union's constitution and by-laws. The second alternative, however, requires only the invocation of available remedies and authorizes resort to the Secretary of Labor, regardless of exhaustion, if the remedies invoked have not yielded a final decision within three calendar months. Both requirements are intended to afford the union an opportunity to hear the complaint of its member and to redress his grievance before he may resort to governmental intervention. Wirtz v. Local 153, Glass Bottle Blowers Assn., 389 U.S. 463, 472, 19 L. Ed. 2d 705, 88 S. Ct. 643 (1968); Wirtz v. Local Union No. 125, Laborers' Int'l Union of N. Amer., 389 U.S. 477, 484, 88 S. Ct. 639, 19 L. Ed. 2d 716 (1968). The statute thus fosters union self-government and seeks to "accustom members to utilizing remedies available within their own organization." Wirtz v. Local Union No. 125, Laborers' Int'l Union of N. Amer., 389 U.S. at 484. The preliminary resort to union remedies has the additional advantage of sharpening issues before they reach the courts. Detroy v. American Guild ...