APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA
Before: HUNTER and WEIS, Circuit Judges, and GERRY, District Judge*fn*
After the complaining party's death, another member of a local intervened in union proceedings challenging an election. Because no objection to the intervention was made at that time, we conclude that the union waived its constitutional provision establishing the period within which complaints could be lodged. In that circumstance, the internal union remedies were properly exhausted and therefore the Secretary of Labor was authorized to pursue the election challenge in court under the Labor-Management Reporting and Disclosure Act of 1959. Because the district court dismissed for lack of jurisdiction, we will vacate and remand.
The Secretary of Labor filed suit alleging that defendant Local had violated Title IV of the Act, 29 U.S.C. §§ 401 et seq. (1976). After a bench trial limited to the jurisdictional question, the court concluded that the Secretary did not have authority to bring the action because there was not a qualified complainant.
In June 1981, the Local elected its executive board by mail ballot. The results announced on June 25 prompted Theodore Gomez, who had been elected, to file a complaint with the Union's International Vice-President on July 7. Gomez charged that one Christian Brasch was ineligible for the executive committee position to which he had been elected.
On August 4, 1981, union member Vincent Cosenza also contested the election of Brasch as well as that of John Troutman. After Brasch and Troutman voluntarily resigned, Cosenza amended his charge on September 9, adding a protest to the method the executive board used to fill the two vacancies. While his charges were still pending before the Union, Cosenza was killed in an automobile accident on October 9, 1981.
Before hearing from the Union about his own protest, Gomez sent a letter on October 23 notifying the International Vice-President that Cosenza had died. Gomez wrote,
"I and the members of Local 126 that I represent have a continuing interest in the charges of August 4, 1981 and the amended charges of September 9th. In the interest of fairness and justice, I would like to amend and join myself as a party to all the charges above. I have been a party to all of the investigative proceedings. . . . I hereby waive any further initial proceedings in lieu of a determination by you as International Vice-President. . . .
As an executive officer of Local 126 IBEW, I trust you will inform me of your findings concerning the joint charges. . . ."
Enclosed with this letter were copies of Cosenza's August 4 and September 9 complaints to which Gomez had added his signature and the date "10-23-81."
This letter apparently crossed in the mail with the Union's communication of October 27 informing Comez that his July 7 protest was moot. Gomez did not take any further action on the July charge.
The Union did not reply directly to the "joinder" correspondence of October 23. However, on November 12, 1981, it sent a letter addressed to Cosenza, with copies to Gomez, to the Local's business agent, and to the union official who had investigated Cosenza's charges. The letter rejected challenges to the election and to the executive board's action in replacing the officials who had resigned. Gomez then ...