The opinion of the court was delivered by: KNOX
The action was brought on the basis of a complaint filed by Adam J. Wisniewski who had sought nomination and election to the District Directorship in question. Wisniewski forwarded a complaint to the Secretary of Labor's representative on May 29, 1969. It was received on June 2, 1969. Defendant has moved for Summary Judgment on the grounds that the Complaint was not timely filed in accordance with the provisions of § 402(a) of the Act in question (29 U.S.C. § 482(a)) and further for the reason that the action as filed by the Secretary of Labor complains of matters other than those originally complained of by Wisniewski in his protest to the Union. Plaintiff has likewise moved for Partial Summary Judgment on the grounds that the Union's affirmative defenses raising these same questions are improper as a matter of law.
We can easily dispose of plaintiff's Motion for a Partial Summary Judgment. It has been held by the Court of Appeals for this Circuit that a pretrial summary judgment may not be entered where there is but a single claim as here. RePass v. Vreeland, 357 F.2d 801 (3d Cir. 1966). For this reason, the plaintiff's Motion for Partial Summary Judgment will be denied.
The defendant's Motion for Summary Judgment on the whole case presents a more difficult question. Section 402(a) of the Act in question (29 U.S.C. § 482(a) provides as follows:
"(a) A member of a labor organization --
(1) who has exhausted the remedies available under the constitution and bylaws of such organization and of any parent body, or
(2) who has invoked such available remedies without obtaining a final decision within three calendar months after their invocation,
may file a complaint with the Secretary within one calendar month thereafter alleging the violation of any provision of section 481 of this title (including violation of the constitution and bylaws of the labor organization pertaining to the election and removal of officers). The challenged election shall be presumed valid pending a final decision thereon (as hereinafter provided) and in the interim the affairs of the organization shall be conducted by the officers elected or in such other manner as its constitution and bylaws may provide."
Both parties concede that the filing of a complaint with the Secretary within one calendar month from the date of the exhaustion of remedies under subparagraph 1 of the Act in question is a prerequisite to the Secretary's right to institute a law suit challenging the Union Election. Shultz v. Local 1291, 429 F.2d 592 (3d Cir. 1970). Wirtz v. Local 169 International Hod Carriers, 246 F. Supp. 741 (D.C. Nev. 1965). See also Wirtz v. Local 153 Glass Bottle Blowers Assn., 389 U.S. 463, 472, 88 S. Ct. 643, 19 L. Ed. 2d 705 (1968). We are not here concerned with subparagraph 2 relative to failure to obtain a final decision within three calendar months, since it is clear that Wisniewski's protests to the Union were definitely and finally rejected on several occasions.
The election in question was held February 11, 1969, and the results were made known by the International Tellers of the Union in a report filed in accordance with the provisions of its International Constitution on April 18, 1969.
We are cautioned, however, that § 402 is not concerned with nominations but with elections. If the nomination violations pervade the election, the latter is subject to being set aside. Therefore, the time does not start to run until the election is held. See Calhoon v. Harvey, 379 U.S. 134, 85 S. Ct. 292, 13 L. Ed. 2d 190; 132 L. Ed. (2) 190 (1964); Wirtz v. H.H. Guy Lodge No. 872, 279 F. Supp. 873 (D.C. W. D. Pa. 1967).
Following the election, Wisniewski filed a protest not only to the methods by which nominations were conducted but also challenged the election of Hart as District Director. This letter was filed March 9, 1969, with the International Secretary-Treasurer, Burke, who by letter dated April 1, 1969, informed Wisniewski that the only procedure available to him had been his original protest to the ...