ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA. C.A. No. 74-1640.
Van Dusen, Adams and Hunter, Circuit Judges.
This appeal brings before us a dispute concerning the nature of the "remedies" which must be exhausted before an employee may file a complaint with the Secretary of Labor under Title IV of the Labor Management Relations Disclosure Act of 1959 (LMRDA).*fn1 The complaint here contested the validity of a union by-law that requires a nomination for union office to be seconded by 25% of the members present at a nominating meeting.
On October 9, 1972, Local 122 of the Amalgamated Clothing Workers of America held an open union meeting for the purpose of nominating candidates for its November election of officers. Ms. Antonia Velasquez, who had not been slated for any position, attempted to have herself nominated from the floor as a candidate for the position of Joint Board Delegate. Her nomination received only eight seconding votes, although 150 members were present at the meeting.*fn2 Since the governing by-laws required that nominations be seconded by 25% of the members present at the nominating meeting, Ms. Velasquez's name was not placed on the ballot, and she was not elected at the November 1973 election.
Ms. Velasquez wrote to the Philadelphia Joint Board of the Amalgamated on December 15, 1973, instituting grievance proceedings to protest the nominating procedure. Particularly the letter challenged the 25% rule as violating the LMRDA.
The Secretary of the Joint Board, in a letter dated February 11, 1974, responded that Ms. Velasquez' objections had been considered by a committee of the board of directors of the Philadelphia Joint Board, by the board of directors itself, and by the members of the joint board as a whole, and that the grievance was denied. Further, the February 11th letter suggested that the proper course of action was for Ms. Velasquez to attempt to amend the by-laws.
By letter dated February 22, 1974, Ms. Velasquez appealed the February 11th decision to the General Executive Board of the Amalgamated Clothing Workers. After three months elapsed without response from the General Executive Board, Ms. Velasquez filed a complaint with the Secretary of Labor on April 1, 1974.
On June 1, 1974, the Secretary of Labor brought the present action to set aside the November 1973 election on the ground that the 25% seconding requirement was an unreasonable qualification on the right of candidacy and thus violative of Title IV of the LMRDA, 29 U.S.C. sec. 481(e).
Without reaching the merits of the charges brought by the Secretary, the district court dismissed the complaint on the ground that Ms. Velasquez had failed to exhaust her remedies as prescribed by the Act. The Secretary has appealed.
The LMRDA, 29 U.S.C. sec. 482(a) ...