that this was the date of final exhaustion of remedies and, therefore, the calendar month for filing complaint with the Secretary of Labor ended on May 18, 1969.
No weight is given to the fact that Wisniewski's protest of March 9, 1969, was directed to the International Secretary-Treasurer instead of the Tellers since under the decision in Shultz v. Local 1291, 429 F.2d 592 (3d Cir. 1970), filing the protest with the wrong official was no bar.
We are also mindful of the decision in Wirtz v. Great Lakes District, 240 F. Supp. 859 (D.C. N. D. Ohio 1965) holding that if internal union remedies are uncertain or unknown to a member, he may seek to find out what they are before the time limit starts to run. There the first reply by the Union was ambiguous. Here Wisniewski was aware of procedures for attacking nominations and was told in no uncertain terms by Burke's letter of April 1, 1969, that he had exhausted his remedies. Despite this, he waited until May 29, 1969, before dispatching a complaint to the Secretary, which was not received until June 2, 1970. This latter date would be the date of filing. Wirtz v. Local Union 169 International Hod Carriers, 246 F. Supp. 741 (D.C. Nev. 1965).
On the other hand, if we attempt to treat this as a subparagraph 2 case, where the union member is unable to obtain a final decision within three calendar months, we are met with the fact there was such decision when the International Executive Board denied his protest on January 20, 1969, or in the alternative (considering post-election procedures) when the International Tellers filed their report on April 18, 1969. We do not consider this as a case where summary judgment should be denied for the oft-cited reason that doubtful cases should go to trial. Both sides agree on the facts and ask for summary judgment.
These matters are undisputed and a lengthy trial would serve no useful purpose if the complaint was not timely filed.
We do not deem it necessary to consider the defendant's contention that the action brought by the Secretary covered matters not included in Wisniewski's protests. In our opinion, the charges contained in his protests of December 27, 1968, and March 9, 1969, were sufficiently broad to encompass the violations charged by the Secretary. See Wirtz v. Local Union 169 International Hod Carriers, 246 F. Supp. 741 (D.C. Nev. 1965). Cf. Shultz v. Local 6799 U.S.W., 426 F.2d 969 (C.A. 9th 1970) (Certiorari petition now pending). Wirtz v. Local 125 Laborers International, 389 U.S. 477 at 482, 88 S. Ct. 639, 19 L. Ed. 2d 716 (1968).
To the extent that Wisniewski's delay may be attributed to a letter received from a Labor Department employee this is of no moment since it does not appear that defendant contributed in any way to the faulty advice. NLRB v. Silver Bakery Inc., 351 F.2d 37 (1st Cir. 1965).
For the above reasons, the plaintiff's Motion for Partial Summary Judgment will be denied and defendant's Motion for Summary Judgment will be granted.
And now, November 30, 1970, it is Ordered that plaintiff's Motion for Partial Summary Judgment be denied.
It is Further Ordered that defendants' Motion for Summary Judgment be and the same hereby is granted, the complaint is dismissed and summary judgment is hereby entered for the defendants.