UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
January 12, 1973
AMALGAMATED CLOTHING WORKERS OF AMERICA RANK AND FILE COMMITTEE ET AL., APPELLANTS
AMALGAMATED CLOTHING WORKERS OF AMERICA, PHILADELPHIA JOINT BOARD ET AL., APPELLEES
Staley, Van Dusen and Rosenn, Circuit Judges.
Opinion of the Court
The appellants brought this suit in the district court*fn1 seeking, inter alia, to enjoin a scheduled nominating meeting*fn2 and to have certain election bylaws of the Amalgamated Clothing Workers of America, Philadelphia Joint Board ("the union"), declared to be in violation of the Labor-Management Reporting and Disclosure Act of 1959 ("LMRDA"), 29 U.S.C. § 401 et seq.*fn3 Injunctive and declaratory relief was denied as was their motion for a stay pending appeal. Thereafter, a meeting was held during which one of the appellants, Dominic Fulginiti, was nominated for the office of business agent. In the ensuing election Fulginiti was successful*fn4
Here, the appellants set forth two arguments. First, they contend that the eligibility requirements contained in the union bylaws violate the equal rights guarantee of § 101(a) (1) of the LMRDA.*fn5 Second, appellants submit that certain rules governing the conduct of union elections are at odds with their First Amendment rights.*fn6 The resolution of these questions entails an examination of the relationship between enforcement of the union bill of rights and the Title IV election provision.*fn7
Since the landmark decision of Calhoon v. Harvey, 379 U.S. 134, 13 L. Ed. 2d 190, 85 S. Ct. 292 (1964), it has been clear that Title IV rights are not enforceable through post-election private suit.*fn8 In the instant case an election was held after the complaint was filed. Nevertheless, this is essentially a pre-election suit; appellants have applied for no judicial relief relative to the completed election. They request only that the union's bylaws be declared violative of the LMRDA.
Jurisdiction in pre-election suits must flow from Title I. Calhoon, supra. The Court emphasized this point in Calhoon, holding that federal courts do not have jurisdiction to hear pre-election private suits under § 102 predicated upon Title IV rights. However, merely because a particular violation is covered by both Title I and Title IV, a private pre-election suit under § 102 is not barred. DePew v. Edmiston, 386 F.2d 710 (C.A. 3, 1967).
It has been noted that the rather broad language in the Calhoon decision could be considered to have precluded Title I suits related to election matters. Union Elections and the LMRDA, 81 Yale L.J. 407, 546-47 (1972). However, on its facts, Calhoon did not prohibit Title I suits in the election area. And, in fact, suits under § 102 brought before an election to enforce Title I rights which were intrinsically bound up with the election process have been permitted. Semancik v. United Mine Workers of America District No. 5, 466 F.2d 144 (C.A. 3 1972); DePew, supra; Sheridan v. United Brotherhood of Carpenters, Local 626, 191 F. Supp. 347 (D. Del. 1961). But once the election has been completed, the outcome cannot be affected by Title I suit. The judicial and administrative remedy of Title IV is exclusive. McDonough v. Local 825, International Union of Operating Engineers, 470 F.2d 261 (C.A. 3, 1972); McGuire v. Grand International Division of Brothers of Locomotive Engineers, 426 F.2d 504, 508 (C.A. 6 1970); Kolomnen v. International Hod Carriers, 215 F. Supp. 703 (W.D. Mich. 1963); Myers v. International Union of Operating Engineers, 40 LC para. 66,436 (1960).
If a substantial claim is asserted under Title I, the federal court has jurisdiction irrespective of the ultimate decision on the merits. Sheridan v. United Brotherhood of Carpenters, 306 F.2d 152, 156 (C.A. 3 1962); Hughes v. Local 11 of International Ass'n of Bridge Workers, 287 F.2d 810, 814 (C.A. 3), cert. denied, 368 U.S. 829, 82 S. Ct. 51, 7 L. Ed. 2d 32 (1961). Here appellants urge claims under Title I with respect to Article V § 3, Article XII § 1, and Article XIII § 4, of the union bylaws which set forth eligibility requirements.*fn9 Those requirements provide that no member shall be eligible for various union offices unless he has been a member in good standing of a local union for at least two years prior to his nomination. Further, the nomination must be made by a vote of at least 25 percent of those present.
Calhoon held that this court does not have jurisdiction under Title I to decide the validity of eligibility requirements that are uniformly applied.*fn10
"* * * Title IV, not Title I, sets standards for eligibility and qualifications of candidates and officials and provides its own separate and different administrative and judicial procedure for challenging those standards. And the equal-rights language of § 101(a) (1) would have to be stretched far beyond its normal meaning to hold that it guarantees members not just a right to 'nominate candidates,' but a right to nominate anyone, without regard to valid union rules." Calhoon, supra 379 U.S. at 138.
Appellants advance the very argument that the Calhoon court rejected. Their contentions with regard to eligibility requirements cannot be tested by a suit under Title I. The Title IV remedy is proper in the case of these bylaws. See, Wirtz v. Hotel Employees, 391 U.S. 492, 20 L. Ed. 2d 763, 88 S. Ct. 1743 (1968); Wirtz v. Local 153, Glass Bottle Blowers Ass'n, 389 U.S. 463, 19 L. Ed. 2d 705, 88 S. Ct. 643 (1968).
Appellants assert that their rights to freedom of speech and assembly are violated by Article XII §§ 2, 5, 6, and 7*fn11 of the bylaws. Section 2 merely provides the Board of Directors with supervisory control over elections. The court is unable to ascertain how the mere designation of election officials which Title IV obviously contemplates raises a Title I question. See 29 U.S.C. § 481(e). We are persuaded that it does not. But we think the other three sections do raise Title I questions.
Section 5 of the bylaws forbids candidates from attending any meeting at which free refreshments are served. Certainly the validity of this restriction on freedom of assembly falls within the purview of § 101(a) (2). The free speech implication of the § 6 requirement that campaign literature be submitted to the Board of Directors before distribution is obvious. See, International Brotherhood of Boilermakers v. Rafferty, 348 F.2d 307 (C.A. 9 1965); Farowitz v. Associated Musicians of Greater New York, Local 802, 330 F.2d 999 (C.A. 2, 1964); Salzhandler v. Caputo, 316 F.2d 445 (C.A. 2), cert. denied, 375 U.S. 946, 11 L. Ed. 2d 275, 84 S. Ct. 344 (1963). The § 7 prohibition of shop collection raises issues which fall within the scope of the Title I freedom of speech and assembly provision. See, NLRB v. United Steelworkers of America, 357 U.S. 357, 2 L. Ed. 2d 1383, 78 S. Ct. 1268 (1958).
Nevertheless, at this stage we find it unnecessary to decide the merits of these questions. Section 101(a) (4) LMRDA provides that a union member bringing a suit for vindication of Title I rights "may be required to exhaust reasonable hearing procedures * * * within such organization." 29 U.S.C. § 411(a) (4). Requirement of internal exhaustion is discretionary. Detroy v. American Guild of Variety Artists, 286 F.2d 75 (C.A. 2), cert. denied, 366 U.S. 929, 6 L. Ed. 2d 388, 81 S. Ct. 1650 (1961). Exhaustion has not been demanded when plaintiffs will suffer irreparable harm in the exercise of their LMRDA rights, Cefalo v. International Union of District 50 United Mine Workers of America, 311 F. Supp. 946, 953-54 (D.D.C. 1970); Sheridan v. Liquor Salesmen's Union, Local 2, 303 F. Supp. 999 (S.D.N.Y. 1969); when resort to the internal appeals structure would be futile, Steib v. New Orleans Clerks & Checkers, Local No. 1497, 436 F.2d 1101 (C.A. 5, 1971); or when the union has consistently taken a position opposed to plaintiff and shows no inclination to change its views, Farowitz v. Associated Musicians of Greater New York, Local 802, supra.
In the instant case, there has been no showing of irreparable harm, futility of internal appeal, or a fixed union position. The appellants have presented no evidence that they ever challenged the objectionable bylaws before instituting this suit. Article XXIV of the bylaws provides what appears to be a reasonable procedure for amendment.*fn12 Further, there is no evidence that the union bylaws chill free speech in union elections. For these reasons this is an appropriate case to demand internal exhaustion. Harris v. International Longshoremen's Association, Local No. 1291, 321 F.2d 801 (C.A. 3 1963).
This case is distinguishable from Semancik, supra, where we refused to demand exhaustion in affirming a permanent injunction against discipline of union members under a specific provision of the union's constitution. In that case, there was considerable evidence that free speech was being inhibited and that internal appeals would be futile due to the union's constant and clear opposition to the plaintiffs.
The motion of appellee to dismiss will be denied, and the order of the district court will be affirmed.