Seitz, Chief Judge, Kalodner and Gibbons, Circuit Judges. Kalodner, C. J., dissenting.
Appellant McFadden appeals from the denial of his motion to intervene as a defendant in an action brought by the Secretary of Labor under Title IV of the Labor-Management Reporting and Disclosure Act of 1959, 29 U.S.C. § 401 et seq. (1971). The Secretary filed suit on December 5, 1969 to set aside the June 1968 election of three officers of the defendant Carpenters Resilient Flooring Local Union No. 2212, including the election of McFadden as Business Manager of the Local. The Secretary and the Local on August 7, 1970 settled the suit by a stipulation that the Local would conduct nominations and elections for the offices of President and Business Manager under the supervision of the Secretary as provided for in § 402 of the Act, 29 U.S.C. § 482(c) and in accordance with the Local's by-laws and the constitution of the International Brotherhood of Carpenters and Joiners. The stipulation provided that the action would be maintained on the docket of the district court pending the completion of the election, after which the Secretary would certify to the court that certain individuals had been elected and that the election had been conducted in accordance with the provisions of the Act, the by-laws of the Local and the constitution of the United Brotherhood. It provided, further, that upon approval of the certification the court would be requested to enter an order declaring the persons certified to have been elected and dismissing the action without costs.
The supervised election was held on October 17, 1970. McFadden was an unsuccessful candidate for Business Manager. Thomas Sullivan, the incumbent President, was also defeated. On November 12, 1970, prior to the filing of any certification by the Secretary, a representative of the United Brotherhood purported to install the newly elected officers. On November 12, 1970 McFadden moved to have this action restrained and on November 16, 1970 the district court on its own motion entered an order setting aside the induction and restoring McFadden and Sullivan to office until its further order. By entering this order on its own motion the district court avoided deciding whether McFadden had standing in the suit, but effectively enforced compliance with the terms of the stipulation.
On November 16, 1970 the Secretary filed a notice of motion for the entry of judgment in accordance with the August 8 stipulation. In support of that motion it filed a certification of election, dated October 28, 1970, certifying that William Devins had been elected Business Manager and William Summer President of the Local.
McFadden had, shortly after the October 17, 1970 supervised election, called to the Secretary's attention certain alleged irregularities in the election, including charges of ineligible nominees, ineligible voters, and coercive activities by contractors. On November 20, 1970 McFadden filed a notice of motion to intervene as a party defendant pursuant to Fed. R. Civ. P. 24. The motion was made alternatively to intervene as of right, Rule 24(a), or by leave of court, Rule 24(b). He filed affidavits setting forth allegations of irregularity which were called to the Secretary's attention. The Secretary represented to the court that an investigation of these complaints was conducted and that they either were unsupported or would not have affected the outcome of the election. That representation was made in the affidavit of Thomas Gilmartin, an Area Administrator in the Labor Management Services Administration of the Department of Labor, filed in opposition to the motion to intervene.
Thus the district court had before it McFadden's motion to intervene as a defendant and the Secretary's motion to enter judgment declaring McFadden's opponent elected Business Manager. McFadden and Sullivan, the defeated candidates, were still nominally Business Manager and President of the Local. The attorney for the Union, however, advised that because of the inherent conflict of interest it could not take a position with respect to either motion but must remain neutral. Thus the only defendant in the case declined to take any position as to whether or not the election had been conducted in accordance with the Act, the by laws of the Local, and the constitution of the United Brotherhood. On December 2, 1970 the district court heard argument on both motions and without taking testimony denied McFadden's motion to intervene and granted the Secretary's motion to enter judgment. McFadden's appeal followed.
The Secretary takes the following not necessarily consistent positions:
1. An unsuccessful candidate in a supervised election may not intervene as a defendant in opposition to the Secretary's motion for entry of judgment on his certification pursuant to 29 U.S.C. § 482(c), because the federal courts lack jurisdiction to consider the contentions of any one other than the Secretary and the defendant labor union in litigation over union elections.
2. If the federal court has jurisdiction to hear the contentions of an unsuccessful candidate in a supervised election, it should nevertheless deny intervention because the Secretary and the defendant union will always, between them, adequately represent the interest of the applicant for intervention.
3. Even if there are some instances where intervention might be permitted, the district court's factual finding that the Secretary's determination was properly made is not clearly erroneous.
An appreciation of these contentions requires an understanding of the scheme of Title IV of the Labor Management Reporting and Disclosure Act of 1959. Under that statute union members who, after exhausting remedies available within the union, still feel aggrieved by the outcome of an election may file a complaint with the Secretary of Labor. The Secretary is authorized to file suit in the district court when after an investigation he finds probable cause to believe the election was not conducted in compliance with the Act. Section 402(b), 29 U.S.C. § 482(b). If the court finds "upon a preponderance of the evidence after a trial upon the merits" that a violation has occurred which "may have affected the outcome of an election," it "shall declare the election, if any, to be void and direct the conduct of a new election under supervision of the Secretary and, so far as lawful and practicable, in conformity with the constitution and bylaws of the labor organization." § 402(c), 29 U.S.C. § 482(c).
The statutory scheme of § 402 must be read in the light of § 403, 29 U.S.C. § 483, which provides:
"No labor organization shall be required by law to conduct elections of officers with greater frequency or in a different form or manner than is required by its own constitution or bylaws, except as otherwise provided by this subchapter. Existing rights and remedies to enforce the constitution and bylaws of a labor organization with respect to elections prior to the conduct thereof shall not be affected by the provisions of this subchapter. The remedy provided by this subchapter for challenging an election already conducted shall be exclusive."
It is quite clear that Congress intended by § 403 to make the § 402 remedy of a suit by the Secretary the exclusive post election remedy, and thus to preempt remedies such as bills in equity or actions in the nature of quo warranto which had existed under state law. MacDonald v. Carr, 355 Mass. 120, 243 N.E. 2d 808 (1969). The Senate Report on the section of the bill which eventually became § 403 states:
"Section 203 [29 U.S.C. § 483] of the bill specifically preserves rights and remedies which union members have under existing law to insure compliance with provisions of a union's constitution and bylaws relating to elections prior to the conduct of an election. However, since the bill provides an effective and expeditious remedy for overthrowing an improperly held election and holding a new election, the Federal remedy is made the sole remedy and private litigation would be precluded." 2 U.S. Code Cong. & Admin.News 1959 (86th Cong. 1st Sess.) p. 2338.
After enactment of the Labor-Management Reporting and Disclosure Act of 1959 attempts were made to find a private post election remedy in Title I of the Act, which enumerates certain rights of union members. Compare Mamula v. United Steelworkers of America, 304 F.2d 108 (3d Cir. 1962) with Harvey v. Calhoon, 324 F.2d 486 (2d Cir. 1963), rev'd Calhoon v. Harvey, 379 U.S. 134, 13 L. Ed. 2d 190, 85 S. Ct. 292 (1964). When Harvey v. Calhoon reached the ...