The opinion of the court was delivered by: NEALON
The Secretary of Labor commenced this action pursuant to 29 U.S.C. § 482(a) on September 3, 1982, seeking a declaration that the election held by the defendant on June 5, 1982, is void for the offices of Financial Secretary, Recording Secretary, Treasurer, Conductor, two Trustees, and five delegates to the Keystone District Council. The court has jurisdiction pursuant to Section 402(b) of the Act (29 U.S.C. § 482(b)). The Secretary has advanced three issues: (1) Section 401(e) of the Act was violated in that a member in good standing was improperly denied the right to be a candidate at the nominating meeting held May 18, 1982; (2) Section 401(g) was violated in that Union funds were used to promote the candidacy of a particular slate of candidates running for office in the election which took place on June 5, 1982; and (3) the Union's membership list was made available to only one slate of candidates in violation of Section 401(c). In its answer, the Union/defendant asserted as an affirmative defense that the complaint filed by the Secretary of Labor in this case was untimely because the complaining party had failed to file his complaint with the Secretary of Labor within one month after the alleged violations by the Union as required by 29 U.S.C. § 482. On September 24, 1982, the Union filed a motion to dismiss asserting the issue of untimeliness. This motion was held in abeyance pending a long but unsuccessful attempt by the parties to agree on a Stipulation of Facts.
Depositions were then taken of John Helfrich and Edward Blazejewski, Sr., employees of the defendant, on October 19, 1983. On January 20, 1984, the Union filed a motion for summary judgment and brief in support thereof, dated January 30, 1984. Plaintiff filed an opposition brief, dated February 15, 1984, along with a cross motion for summary judgment. On February 22, 1984, defendant filed a reply brief and on March 6, 1984, plaintiff filed its reply brief. A joint stipulation of uncontested facts was filed by the parties on March 28, 1984. A conference was held April 23, 1984, and the parties agreed that four additional depositions should be taken. Accordingly, the depositions of John Zimnicky, Stanley Soboleski, Donald Purvin and Thomas Froncek were taken and supplemental briefs were filed, the last on September 19, 1984. The motion and cross motion for summary judgment are now ripe for disposition. The motion of the defendant will be granted in part and the plaintiff's motion will be denied.
On January 1, 1982, Locals 150, 401, 414 and 768 merged into Local 514. The defendant, Local 514, governed by the Constitution of the United Brotherhood of Carpenters and Joiners of America, held nominations for the election of its local officers on May 18, 1982. On June 5, 1982, Local 514 conducted the election for the local offices of President, Vice-President, Recording Secretary, Financial Secretary, Treasurer, Conductor, Warden, and three Trustees to the District Council, Greater Wilkes-Barre Labor Council and the Building Trades Council.
Section 57(G) of the International Constitution provides, inter alia, that all protests directed to the conduct of nominations, or election procedures, may be appealed to the General President, in writing, within thirty (30) days of the date of the election. Decisions of the General President shall be final.
John Zimnicky, by letter dated June 3, 1982, addressed to William Konyha, General President of the United Brotherhood of Carpenters and Joiners of America, protested the conduct of the nominations for that election, specifically the decision of the Election Committee for Local 514, declaring one John Gadomski ineligible to run for office on the ground that he was not a member in good standing. Following an investigation, the General President denied Mr. Zimnicky's protest by letter dated June 8, 1982. By letter dated June 21, 1982, and addressed to the General President, Mr. Zimnicky protested a pre-election mailing made by Edward Blazejewski, Sr., Business Representative, on behalf of one slate of candidates. By letter of June 29, 1982, the General President found no merit in Mr. Zimnicky's June 21, 1982 letter of protest. On June 27, 1982, Mr. Zimnicky appealed to the Carpenters' General Executive Board regarding the denial of his protest letter of June 3, 1982. Mr. Zimnicky was advised on July 1, 1982, that in accordance with the Constitution and Laws of the International, the General President's decision was final.
On July 6, 1982, it appears Zimnicky attempted to file a complaint with the Secretary of Labor by hand-delivering a letter to the Office of the Labor Management Services Administration (LMSA) office listed in the Wilkes-Barre phone book. Unbeknownst to him, the LMSA had closed its Wilkes-Barre office in June of 1982. In attempting to locate a Department of Labor office in which to file the complaint, Zimnicky met two investigators for the Wage and Hour Division of the Department of Labor, which office was in Wilkes-Barre. He offered the complaint to one of the investigators who looked it over and then referred Zimnicky to the NLRB Office in Philadelphia. Zimnicky mailed the complaint to the NLRB, which, by letter dated July 9, 1982, referred it by mail back to the defunct LMSA Office in Wilkes-Barre. Eventually, it was forwarded to the LMSA Office in Philadelphia, arriving on July 15, 1982. The Secretary investigated the complaint, treating it as if it were filed on July 6, 1982, the date it was hand-carried to the defunct LMSA Office in Wilkes-Barre.
I. The Timeliness of Mr. Zimnicky's Original Complaint
Regarding the timeliness issue, the Union asserts that the requirement of § 482(a) that a member of a labor organization "file a complaint with the Secretary within one calendar month of the violation" is mandatory and that the Secretary of Labor does not have standing to bring an action unless a member of the Union has filed a valid complaint challenging the Union election. The Union contends the complaint should not be deemed received for purposes of the Act until July 15, 1982, thus exceeding the one-month statutory limitation period. The Secretary maintains, however, that the complaint should be considered filed as of July 6, 1982, when Mr. Zimnicky attempted to hand-deliver it to the defunct LMSA office in Wilkes-Barre. Because Mr. Zimnicky did all he could to file his complaint on July 6, 1982, but was thwarted from reaching the proper agency due to circumstances beyond his control, the Secretary requests the court to consider the complaint as having been filed for purposes of Title IV on the date Mr. Zimnicky made contact with Wage and Hour investigators in the Wilkes-Barre Federal Building. This contact would be within the one-calendar month time limit set forth in § 402(a).
(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 (including violation of the constitution and bylaws of the labor organization pertaining to the election and removal of officers). . . .
The Third Circuit Court of Appeals in Hodgson v. United Steelworkers of America, 459 F.2d 348, 350 (3d Cir. 1972), explained that the one-month filing period is mandatory. That, "if the individual complainant fails to file a protest with the Secretary within one month of the exhaustion of his union remedies, an action filed in the district court must be dismissed." Id. See also Donovan v. Local 126, International Brotherhood of Electrical Workers, 552 F. Supp. 429, 430 (E.D. Pa. 1982) (citing Hodgson); Hall v. Marshall, 476 F. Supp. 262, 268 (E.D. Pa. 1979) (citing Hodgson); Shultz v. United Steelworkers of America, 319 F. Supp. 1172, 1173 (W.D. Pa. 1970). If a ...