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Brennan v. Local Union 122


argued: September 6, 1977.



Van Dusen, Adams and Hunter, Circuit Judges.

Author: Adams


ADAMS, Circuit Judge.

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) provides:

(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.

Local 122 contends, and the district court concluded, that in addition to the protest she in fact filed, exhaustion of Ms. Velasquez's remedies required an attempt to amend the by-law to which her objection is addressed.*fn3 Since no such attempt was made, the district court held, the Secretary was without power to bring this suit. While we agree that exhaustion is a necessary prerequisite to action under LMRDA Title IV, in light of the facts of this case we conclude that the by-law amendment process is not a "remedy" to which Congress has mandated resort.

Statutory construction should generally be informed both by reference to the underlying policies of Congress and by common sense. Title IV, the statute to be construed here, represents a balance between the public interest in fair and democratic union elections on the one hand, and the importance of minimizing government encroachment upon union autonomy on the other.*fn4 As one aspect of this equilibrium, Congress has determined that before the Secretary may intrude upon union election procedures, his authority must be called forth by a union member who has either exhausted his union remedies or invoked them without satisfaction for three months.

In addition to the traditional roles of exhaustion in sharpening issues for the courts*fn5 and conserving scarce resources allotted to enforcement,*fn6 the Title IV exhaustion precept serves functions specific to the LMRDA. It allows unions the opportunity to resolve complaints of unfairness without governmental intermeddling,*fn7 and it fosters responsive union self-government by encouraging establishment of and resort to structures for internally resolving disputes.*fn8

Neither of the purposes specific to LMRDA would be significantly served by interpreting the Act as mandating an attempt to amend the by-laws in the situation before us.

Both the Philadelphia Joint Board and the Amalgamated General Board were fairly apprised of the substance of Ms. Velasquez's complaint by her use of the grievance mechanism. They thus had an opportunity to alter or to begin to alter the challenged election procedures.*fn9 Indeed, the Joint Board delegates to whom Ms. Velasquez's grievance was directed were in a far better position than she to generate an amendment: Ms. Velasquez's only option was to suggest that her local union sponsor an amendment, whereas the Joint Board delegates and officers were each personally empowered to bring suggested amendments before the Board. In fact, they did nothing.

We do not agree, however, with the government's contention that any notice whatsoever to union officials is sufficient to satisfy the exhaustion requirement. If reasonably-available internal channels for processing grievances have been deliberately ignored, merely bringing the matter to the union's attention does not fully vindicate the public interest in encouraging responsive self-government on the part of unions.

In this case, however, it cannot be said that Ms. Velasquez bypassed the available mechanisms for settling her dispute internally. Hers was not a vague, perfunctory notice of dissatisfaction. Rather, as well as could be expected from a lay person,*fn10 she detailed the ground for her grievance and submitted it through channels that were appropriate.*fn11 Indeed, according to the documents filed below, Ms. Velasquez's letter was treated by the Joint Board with the seriousness accorded a properly submitted grievance.

Finally, the more general goals of exhaustion are not served by requiring resort to the amendment procedure. An attempt to induce Local 122 to amend the by-laws would do little to sharpen the issues presently before this Court. And it seems unlikely from the response of the Joint Board to the grievance that any attempt to amend the by-laws by a 2/3 vote of that Board would have met with success sufficient to obviate action by the Secretary.

Under these circumstances, we conclude that when Ms. Velasquez did not pursue an attempt to introduce an amendment to the by-laws there was no failure to invoke or exhaust internal remedies sufficient to bar this action under Title IV.


Our decision is supported by the governing authorities. The leading case on exhaustion in the context of a challenge to union by-laws is Hodgson v. Local 6799, United Steelworkers of America, 403 U.S. 333, 29 L. Ed. 2d 510, 91 S. Ct. 1841 (1971). There, a union member "protested" an election on several grounds, but received no satisfaction from the union. He then filed a complaint with the Secretary of Labor, adding to his previous objections an allegation that a by-law establishing a meeting-attendance requirement as a condition of candidacy for union office was illegal. The Court first noted the "heavy burden on the union to show that it could not in any way discern that a member was complaining of the violation in question."*fn12 It nonetheless held that the complaint presented to the union in Hodgson concerned matters "wholly unrelated to the rule" and "therefore h[e]ld that internal union remedies were not properly exhausted."*fn13 The implication of the Hodgson decision was that if the complainant had "clearly indicated to the union his dissatisfaction" with the by-laws, the exhaustion requirement would have been met. No mention was made of any necessity of attempting an amendment.*fn14 Similarly, the contention that Title IV exhaustion makes necessary an attempt to amend by-laws cannot be reconciled with our decision in Shultz v. Local 1291 Intl. Longshoremen's Assn., 429 F.2d 592 (3d Cir. 1970). There, this Court detailed the steps taken by the complainant internally to challenge the outcome of an election on the basis of a racial qualification for union office contained in local by-laws. 429 F.2d at 594-95. There is no reference to any attempt to amend. Nonetheless, we held that the complainant did "invoke his available union remedies without obtaining final decision within three months and therefore was entitled to make his complaint to the Department of Labor." 429 F.2d at 598.

The defendants suggest that Amalgamated Clothing Workers Rank and File v. Amalgamated Clothing Workers, 473 F.2d 1303 (3d Cir. 1973), binds us to the proposition that the amendment process is a remedy which must be exhausted before the Secretary of Labor may act upon a complaint. We do not read Rank and File to have such an effect.

In Rank and File, plaintiff, a member of the Amalgamated, brought suit under Title I of LMRDA challenging inter alia, the consistency of the by-laws at issue here with the guarantees of Title I. By the time the case reached this Court, the election in question had already occurred, and the only relief requested was a declaration that the by-law was invalid. We refused to review the Title I claim on the ground that the plaintiff had failed to exhaust available union remedies. The opinion stated:

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. 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).

473 F.2d at 1308.

Leaving aside the fact that Rank and File was brought under Title I rather than Title IV of the LMRDA,*fn15 it is distinguishable from the action before us on the basis of the relief sought. In Rank and File, the requested remedy was a declaratory judgment that the by-law violated Title I. The object of such relief could have been equally accomplished by amendment. Here, in contrast, the plaintiff requests that the courts invalidate an election, a result which an amendment could not achieve.

More importantly, however, as the district court noted, in Rank and File there was no evidence that the plaintiffs had ever challenged the by-laws. In view of the failure to discuss Hodgson and Shultz, and of the indications in the legislative history of Title I that the "remedies" contemplated were adjudicatory rather than legislative,*fn16 we believe that Rank and File is best understood as holding that total refusal to challenge by-laws by union procedures before resort to outside tribunals is a failure to exhaust which may bar adjudication of a claim under the LMRDA.

In the present case, as discussed above, Ms. Velasquez utilized internal procedures to challenge the by-law at issue. Even under Rank and File, therefore, we conclude that Ms. Velasquez has appropriately exhausted her available remedies.


We do not, however, believe that the case is ripe for resolution by us on the merits. The effect of the by-law in Local 122 and elsewhere*fn17 and the weight of the justifications which might support the reasonableness of the by-law are questions which should be analyzed in the first instance by the district court which heard the testimony in this case.*fn18 Its findings and conclusions will be critical to the final adjudication of this matter.

The case will accordingly be reversed and remanded for resolution on the merits.

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