ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY.
Seitz, Chief Judge, Sloviter, Circuit Judge, and Louis H. Pollak, District Judge.*fn*
The Secretary of Labor filed suit to set aside an election conducted by defendant Local 1235 on the ground that it was not conducted in accordance with the constitution and bylaws by which it was governed, in violation of section 401(e) of Title IV of the Labor-Management Reporting and Disclosure Act of 1959 (LMRDA), 29 U.S.C. § 481(e) (1976).*fn1 The district court granted summary judgment for the Secretary, and ordered a new election under the supervision of the Secretary as to all contested offices. Local 1235 appeals, claiming that the Secretary's suit was barred by the failure of the election protestors to exhaust their internal union remedies in a timely fashion and that there were, at least, contested factual issues relevant to the exhaustion issue which precluded the grant of summary judgment for the Secretary. We conclude that summary judgment was inappropriate because there were contested factual questions and will remand this case to the district court for further proceedings.
Local 1235 is an affiliated local union of the International Longshoremen's Association, AFL-CIO, maintaining its principal office in Newark, New Jersey. The dispute in this case concerns the election of local officers in early 1981. The election was conducted on the following schedule: nominations were received on January 22, 1981; voting was conducted on February 19; and absentee ballots were counted and the election concluded February 26. On February 24, representatives of twenty-one members of Local 1235 met with an attorney to obtain assistance in protesting various aspects of the election which they believed had been in violation of the Local Constitution and bylaws and the International Constitution. They provided the attorney with a copy of the International Constitution adopted in July 1975, which did not contain any specific provision governing election protests, but did contain a general appeals provision requiring that appeals be filed within 30 days after the decision from which the appeal was taken. Accordingly, on March 26, 1981, within 30 days of the conclusion of the election, the attorney filed a written protest with the Local and the International on behalf of the protestors. On April 6, the International rejected the protest as untimely, on the basis of an amendment to the International Constitution adopted in July 1979, which specifically required that protests of the election of local officers must be filed with the secretary-treasurer of the local union within 10 days after the conclusion of the election.
The protesting union members then filed a complaint with the Secretary. The Secretary concluded, after investigation, that the election had not been conducted in compliance with the Act. In July 1981 the Secretary commenced this action in the United States District Court for the District of New Jersey pursuant to section 402(b) of the LMRDA, 29 U.S.C. § 482(b),*fn2 charging Local 1235 with violations of section 401(e), 29 U.S.C. § 481(e). The pre-trial order enumerates ten separate violations, each one representing a noncompliance with the International or the Local Constitution.*fn3 The complaint sought to have the election set aside as to all contested offices and the direction of a new election to be supervised by the Secretary.
Local 1235 moved for summary judgment on the ground that the protestors had failed to file their protest within 10 days, as required by the 1979 Constitution. The Secretary cross-moved for summary judgment on the ground that the alleged violations were uncontested. The district court, having before it a lengthy joint pre-trial order containing stipulated uncontested and contested facts, as well as other affidavits and depositions, denied Local 1235's motion and granted the motion of the Secretary. It therefore declared the February 1981 election to be void as to all contested offices and ordered a new election under the supervision of the Secretary.
Local 1235 does not in this appeal challenge the district court's finding that the Secretary had shown uncontested violations of section 401(e) and was entitled to prevail on the merits.*fn4 The only issue it raises is whether the court properly granted summary judgment for the Secretary in light of Local 1235's contention that the protestors failed to comply with the election protest procedure established by the 1979 Constitution.
Section 402(a) of the LMRDA, 29 U.S.C. § 482(a), provides, inter alia, that a member of a labor organization "who has exhausted the remedies available under the constitution and bylaws of such organization and of any parent body" may file a complaint with the Secretary alleging the violation of any provision of section 401 of the Act.*fn5 The Secretary is then empowered to investigate the complaint, and upon a finding of probable cause to believe that a violation has occurred, file suit on the complainant's behalf in United States District Court. LMRDA § 402(b), 29 U.S.C. § 482(b).
In this case, the district court determined that exhaustion should be excused for several reasons. First, the court stated that "there is strong evidence in the record that the members of Local 1235 were never meaningfully informed of the change in the protest procedure," since neither the Constitution nor notice of the amendment had been distributed to the membership. Second, the court emphasized the uncontested fact that prior to the voting Suarez, one of the complainants, had objected to one aspect of the voting and that "the union was therefore aware at an early date of a protest yet never sought to inform its members of the procedure for filing a formal complaint." Finally, the court concluded that "there is strong evidence that plaintiffs attempted to comply with the spirit of the appeals provision." Local 1235 contends that the district court erred as a matter of law in failing to apply the 10-day limitations period ...