Jаmes D. HODGSON, Secretary of Labor, Petitioner-Appellant, v. LODGE 851, INTERNATIONAL ASSOCIATION OF MACHINISTS & AEROSPACE WORKERS, AFL-CIO, Defendant-Appellee.
No. 71-1107.
United States Court of Appeals, Seventh Circuit.
Dec. 9, 1971.
Rehearing Denied Jan. 13, 1972.
454 F.2d 545
Stevens, Circuit Judge, dissented and filed opinion.
Michael D. Block, Joliet, Ill., for defendant-appellee.
Before KILEY, PELL and STEVENS, Circuit Judges.
PELL, Circuit Judge.
This case arises out of a local union‘s election of officers conducted on December 21, 1969. Six days later, a member in good standing of the local, Local 851, protested the conduct of the election and made the appropriate application for internal union relief. After waiting three months and receiving no satisfactory answer to his complaints, he filed a complaint with the Secretary of Labor under
“The Secretary shall investigate such complaint and, if he finds probable cause to believe that a violation of this subchapter has occurred and has not been remedied, he shall, within sixty days after the filing of such complaint, bring a civil action against the labor organization . . . to set aside the invalid election, if any, and to direct the conduct of an election or hearing and vote upon the removal of officers under the supervision of the Secretary. . . .”
29 U.S.C. § 482(b)
The Secretary proceeded to investigate the complaint. Approximately one month before the expiration of the 60 day period referred to above, the Secretary obtained a letter signed by the President of Lodge 851 and the Vice President of the International Union stating:
“It is hereby agreed that the time within which the Secretary of Labor may bring suit for any and all causes of action arising from or relating to LMWP‘s [Office of Labor-Management and Welfare-Pension Reports] investigative findings with regard to the challenged election be extended from May 2, 1970 to July 1, 1970.
“It is further agreed that Local Lodge 851 and the International Association of Machinists and Aerospace Workers, said local union‘s parent body, both individually and together, hereby waive any and all defenses relating to the timeliness of any act or action required to be taken by the Secretary of Labor under Section 402 of the LMRDA which it or they might otherwise have to the causes of action referred to above.”
The Department of Labor‘s reply letter of May 6, 1970, contained the following statement:
“In consideration of this waiver, legal proceedings will not be initiated by the Department of Labor at this time, but the right of the Secretary to initiate such proceedings is reserved until July 1, 1970.”
The policy of obtaining such waivers of the 60 day time period was, admittedly, a common practice in these cases and had been standard policy of the Department of Labor since the passage of the Act in 1959.
On June 30, 1970, the Secretary, having concluded his investigation and having been unable to negotiate an agreement for a new election with the union, filed a complaint against Lodge 851 alleging three specific violations of the Act. The union moved to dismiss the complaint on the ground that it had not been filed within the statutory 60 day period. The court below, apparently relying heavily on the district court‘s
First, we must note that the Pressmen case, supra, upon which the court below principally relied, has been reversed by the Sixth Circuit, Hodgson v. International Printing Pressmen, 440 F.2d 1113 (6th Cir. 1971), cert. denied, 404 U.S. 828, 92 S.Ct. 63, 30 L.Ed.2d 56. In a well reasoned opinion by Judge Edwards (in which Associate Justice Clark and Circuit Judge Celebrezze concurred), the court held that the “union‘s voluntary waivers which were relied upon by appellant may be pled by appellant Secretary of Labor as an equitable defense to estop the otherwise mandatory bar of the statute.” 440 F.2d at 1115. Although we are satisfied with the result, as well as the reasoning of the Sixth Circuit, it is necessary to examine those arguments of defendant union here which it is claimed were not considered by the Pressmen court.
Defendant first states that since
We cannot agree with this contention since the election process remedies of the LMRDA have certain unique characteristics which distinguish it from state political election laws.
In Calhoon v. Harvey, 379 U.S. 134, 140, 85 S.Ct. 292, 13 L.Ed.2d 190 (1964), the Supreme Court stated:
“Reliance on the discretion of the Secretary is in harmony with the general congressional policy to allow unions great latitude in resolving their own internal controversies, and, where that fails, to utilize the agencies of Government most familiar with union problems to aid in bringing about a settlement through discussion before resort to the courts.” 379 U.S. at 140, 85 S.Ct. at 296. (Emphasis added.)
While the above statement was not directly involved in the decision of the point before the court, it does show clearly that an integral part of the remedial structure of Title IV was to be negotiation between the Secretary and the union to the end of reaching, if possible, a voluntary and non-litigated settlement. The Court‘s language as above set out was quoted with approval in Wirtz v. Bottle Blowers Ass‘n, 389 U.S. 463, 472, 88 S.Ct. 643, 19 L.Ed.2d 705 (1968).
In contrast, state election laws by their nature have no place for negotiations between the candidates and the election board to determine whether or not a new election will be held. The courts are the sole arbiters of that decision. Reference to such political processes is, therefore, not relevant to the present case.
Local 851 next advances the argument that the word “shall” in
At one time, a statute which created a new cause of action and which included a time limitation was interpreted as making the time limitation a jurisdictional (or substantive) еlement of the cause, such that it could not be waived even though the parties both desired to do so. The theory was that the timely
We also reject the rule proposed by defendant in this case that a time limitation included in a statutory scheme is a priori jurisdictional. Rather it is necessary to examine the intent of Congress in passing this Act.
A subsidiary argument presented by Local 851 is that since the Supreme Court has interpreted the word “shall” as a mandatory statement to the courts in
While we recognize that “shall” in many contexts is equated with “must,” we do not conceive that this result is automatic in all situations, certainly not in the present one. Nor do we find any sequiturish interpretations imposed upon one subsection of the Act deаling with the discretionary duties of the Secretary simply because the courts have a mandatory duty under a different subsection of the Act.
Local 851 contends, however, in any event the intent of Congress was that
In support of this phase of its argument the union cites the “well established principle that a statutory right conferred on a private party, but affecting the public interest, may not be waived.” While this rule may be true in some cases, it has no application here since the Secretary of Labor is not a private party in the usual sense of the term. Rather the Secretary is told to determine probable cause, much as a public prosecutor does. Although the Secretary‘s role is not solely that of a defender of public interest since he is also, in part, prosecuting a private claim,4 this element is present to a great enough extent to make the rule proposed here by Local 851 irrelevant to the present case.
Next the union argues that Congress could not have intended such waivers to be obtained from the very union officials whose elections are being challenged. As in politics it seems that litigation makes strange bedfellows for thе union is here contending that the rights of the dissident union members are not being protected although presumably denying that they were violated in the election in question. Although this question comes before us in this rather odd stance due to the exigencies of litigation, it is still significant in determining the Congressional intent.
The union‘s letter waiving any time limitations in filing suit was signed by the President of the Lodge, whose election was being contested, and by the Vice President of the International, who, as noted by the defendant, is not a member of the local. Defendant contends that Congress could not possibly have intended that these two people should have the power to waive the 60 day limitation. We reject this view for several reasons.
First, the Act itself makes the Secretary of Labor the instrument for protecting Title IV rights and for prosecuting claims of improper election activities. It is not the president of the local who is assigned the duty of protecting these rights, but rather the Secretary and it is his discretion which should be at question. Since the Secretary has been granted discretion under the Act,5 as noted in Calhoon v. Harvey, supra, it is clear that if he determines that such a waiver would expedite handling of this matter, this would not be, a priori, a violation of the Congressional mandate. Although his actions would be open to
The Secretary represents the position of the dissidents so that a proper adversarial system may exist.
A second consideration as to the propriety of incumbent officers executing such waivers arises from the Act itself which states that the “challenged election shall be presumed valid pending a final decision thereon . . . and in the interim the affairs of the organization shall be conducted by the officers elected or in such other manner as its constitution and bylaws may provide.”7
There is no showing here of a contra provision of the union‘s constitution or bylaws and under the Act it seems clear that the local president is the proper party in this case to sign a waiver of any of the local‘s rights even though his election has been challenged.
Finally, the defendant comments that the letter was also signed by the International Vice President who was “not a member of the local.” The implication is that the International should have had nothing to do with local elections. But once again this is refuted by the language of the Act itself which provides a three month period in which the complaining union member must exhaust internal union remedies, that is, he must, inter alia, take an appeal to the International union.
Furthermore, the Act in
Local 851, however, argues that waivers of the 60 day time period would contravene the intent of Congress that such cases should be processed expeditiously. Senate Bill 3974, passed by the Senate in 1958, was the precursor of the LMRDA. The bulk of the bill actually signed to into law a year later appeared in the 1958 version. That version contained the following language in lieu of the 60 day period actually enacted in
“The Secretary shall investigate such complaint and if he finds probable cause to believe that a violation of this Act has occurred and has not been remedied, he shall, within thirty days of filing of such complaint, or as soon thereafter as possible but in no event after sixty days, bring a civil action against the labor organization. . . .” S.3974, § 302(b). (Emphasis added.)
The next year when the bill was reintroduced, the above clearly mandatory language as to time of filing by the Secretary had been eliminated and in its place was simply “within sixty days.” § 302(b), Senate Bill 505 as introduced by Senator Kennedy in 1959. There was no reason given for the change in wording in any of the committee reports or the debates on the bill (totalling in excess of 1000 pages). Whether one can say that the removal of the mandatory language meant that the time was to be discretionary or that it was just a shorthand way of stating the same mandatory period is, without reference to other por-
The two goals of the Act which seem to be in conflict here are, first, the desire “to allow unions great latitude in resolving their own internal controversies, and . . . bringing about a settlement through discussion before resort to the courts,” Calhoon v. Harvey, supra, 379 U.S. at 140, 85 S.Ct. at 296, and second, the need for “an effective and expeditious remedy for overthrowing an improperly held election. . . .” (Senate Report No. 187 on Senate Bill 1555 (1959), p. 21) U.S. Code Cong. & Admin.News, p. 2338. The Secretary contends that he has the discretion to obtain these waivers and that such waivers are essential in implementing both policies.
Certainly, the waivers, providing more time to negotiate a settlement, serve the first purpose of avoiding resort to the courts for a solution. The second goal is not quite as obviously aided by this policy. In the ordinary civil case, the filing of a lawsuit does not limit negotiations, and in fact may speed a settlement. The labor situation with which we are dealing is admittedly quite different from the ordinary lawsuit. A union leader is a quasi-political figure and a public charge of improper conduct by a Government agency may serve only to harden the union‘s desire to avoid a settlement as long as possible, maintaining the appearance of rectitude.
Additionally, by forcing the union to take a public position and thereby potentially freezing the bargaining, the Secretary will have to litigate marginal cases which could easily be settled without a suit. It is our belief that Congress, had it been directly confronted with this issue,8 would have favored giving the Secretary this discretion, as it did in other areas of Title IV. Moreover, the Secretary‘s assertion that this practice of pursing a negotiated settlement beyond the 60 day period without filing suit has been successful is well-documented by affidavits in the record which are uncontested.
The Senate Report No. 187 while stating that the remedy was to be expeditious also said it was to be effective. That the procedure has been effective is demonstrated by the fact that between July 1, 1962 and June 30, 1969 the Labor Department conducted 329 investigations which disclosed actionable violations. 175 of these cases were resolved without litigation when the labor organizations involved agreed to remedy the violations found.
The LMRDA, having been stripped of pre-election relief in Calhoon v. Harvey, supra,9 and subsequent decisions, is necessarily restrained in expeditious rectification of election violations. Post-election remedies are inevitably less effective10 and Congress has built into the system a substantial delay of approximately five months before suit is to be filed.11
“Although litigation is always available as the ultimate remedy, voluntary compliance is a more viable alternative because it is less time consuming and irritating. . . . From the standpoint of promptness of relief, litigation is the least satisfactory method of remedying a Title IV violation. . . . After pre-trial preparation and the inevitable delays occasioned by the crowded federal dockets, a case would come to trial in about one to one and one-half years after the action was commenced.” Note, The Election Labyrinth: An Inquiry into Title IV of the LMRDA, 43 N.Y.U.L.Rev. 336, 365 & 375 (1968).
While it is a truism that litigation cannot come to a conclusion unless it is first initiated, with the current congestion of court calendars it seems naive to assume that the mere filing of a suit will ipso facto accomplish an expeditious disposition of a claim.
In light of these factors, we conclude that Congress did intend the Secretary to have some discretion here to say that the case could be handled more expeditiously by such an extension as might be reasonably necessary in order to encourage negotiation. This is admittedly an inference from a consideration of Title IV as a whole, but it is necessary here since we are of the opinion that Congress never expressly considered this issue and we must therefore try to decide how Congress would have acted if the issue had been squarely before it on these terms.
We do not hold that the discretion is unlimited, timewise, but in the present case we cannot say that a 30 day extension was such an abuse that sanctions should be imрosed. Furthermore, in general, the abuse of discretion will not be challenged by the unions, but by the dissident members who have filed the complaint with the Secretary. We approve of the decisions noted above, Schonfeld v. Wirtz, supra, and DeVito v. Shultz, supra, which hold that the Secretary‘s decisions can be challenged if they constitute an abuse of discretion, and in passing note that the
Thus, the two goals sought by Congress are effectively realized (or at least as much as possible) by permitting the Secretary some discretion in obtaining these waivers, but, as with his other decisions in this area, the dissident union members are protected by the Administrative Procedure Act and the right to judicial review against an abuse of discretion by the Secretary in obtaining excessive extensions or failing to prosecute meritorious claims.
In addition, we cannot be unmindful, in determining the intent of Congress, of the fact that the Secretary has been obtaining these waivers since the inception of the Act and that there has never been any complaint or remedial legislation by Congress as to this pattern of action. See, Udall v. Tallman, 380 U.S. 1, 16, 85 S.Ct. 792, 13 L.Ed.2d 616 (1965), as to the deference to be given to such long-standing contemporaneous administrative determinations.
We must next briefly consider defendant‘s contention that the Sixth Circuit improperly applied the law of waiver and estoppel to this issue in the Pressmen case, supra. First, it should be not-
In fact, in Randon v. Toby, 11 How. (52 U.S.) 493, 13 L.Ed. 784 (1850), the Court stated: “It [the waiver of the statute of limitations] extended the time of payment, and the statute did not begin to run till the extended time had expired. It operated also by way of estoppel in pais to a defence under the statute of limitations.” 11 How. at 519. In this context the union‘s contention lacks merit. The union argues that its waiver was neither voluntary nor knowledgeable, basing these statements on the coercive nature of the Secretary‘s request (either sign or be sued) and on the fact that the Secretary misstated the date at which the 60 day period would expire. As to the first point we need only note that waivers of constitutional rights have been deemed voluntary in far more coercive situations, e. g., North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970) (plea bargaining case). A waiver, if knowledgeably executed, is not void even though it may have been tactically motivated, as here. As to the mistaken date, this was certainly a nonmaterial mistake; we cannot believe that the union would have acted any differently had it been aware that the Secretary had another 30 days left in which he could have acted without obtaining a waiver. Reference is only needed to the number of waivers executed аnd the union‘s own argument that the challenged officers would happily sign in order to stay in office, to see the incorrectness of this position.
Finding that the exchange of letters constituted a valid waiver supported by consideration in that the Secretary forbore to sue immediately, we need not reach the question of whether or not the estoppel doctrine would also be applicable except to note our general agreement with the exposition of estoppel found in the Sixth Circuit‘s Pressmen opinion.
Finally, we must examine briefly the union‘s contention that the procedure here involved violates procedural due process. As noted above, the Congressional history and a Supreme Court opinion, Calhoon v. Harvey, supra, have emphasized the role the Secretary‘s discretion is to play in enforcing Title IV of the LMRDA. This discretion, limited by judicial review, has been implemented through the mechanism of obtaining these waivers in order to encourage negotiated settlements—a clear objective of Congress. The union‘s claim is that this process seeks to avoid the “interposition of the court” and that this is a violation of procedural due process. In addition, Local 851 notes the laxity in the Government‘s prosecution of this case and appeal once the decision to sue was made and urges that such dilatoriness deprives both it and the public of the “right to a meaningful hearing at a meaningful time,” since the delays often allow an entirely new elеction to intervene.
The first of these contentions merely attacks the use of discretion on the part of any administrative or executive agency. Here, in any event, the Secretary has brought the case before the courts for a de novo consideration of the alleged violations of Title IV.
As to the second procedural argument, that the delay prevents a meaningful trial at a meaningful time, we must only note that the delay in this case was for 30 days in a system which has far longer delays statutorily mandated. We cannot agree with the union that a delay of this length represents a denial of due process.
On this appeal, Local 851 belatedly attempts to assert that the complaint
For the reasons hereinbefore stated the dismissal of the Secretary‘s complaint by the district court is hereby set aside and vacated and the cause is remanded to the district court for further proceedings not inconsistent herewith.
Reversed and remanded.
STEVENS, Circuit Judge (dissenting).
This case involves a narrow issue оf statutory construction. The question is whether the Secretary of Labor has acted in compliance with
The Secretary‘s practice is described, in part, in an affidavit filed on his be-
A literal reading of the mandatory language of the statute and the regulations promulgated thereunder4 would plainly forbid the Secretary‘s practice. Nevertheless, the issue must be appraised in the context of the statute as a whole, its legislative history, and the arguments which the Secretary has advanced in support of his policy of favoring negotiation rather than litigation in cases such as this. Cf. Midstate Horticultural Co., Inc. v. Pennsylvania Railroad Co., 320 U.S. 356, 64 S.Ct. 128, 88 L.Ed. 96.
I.
As is well known, the Labor-Management Reporting and Disclosure Act was enacted to protect the rights of individual union members from overreaching by their leaders.5 Five of the seven titles in the Act dealt with separate categories of abuse. With respect to each category, the rank and file membership comprise the primary protected class. But for each type of abuse, a somewhat different remedy was provided.
Title I is the “Bill of Rights of Members of Labor Organizations.” For extreme violations of this Title, such as discipline without a fair hearing, a member has a right of direct access to a federal court to obtain injunctive or other appropriate relief without first having exhausted his internal union remedies. Detroy v. American Guild of Variety Artists, 286 F.2d 75 (2nd Cir. 1961), cert. denied, 366 U.S. 929, 81 S.Ct. 1650, 6 L.Ed.2d 388.
Title III regulates the establishment and administration of trusteeships over local unions. Alternative remedies for violatiоn of its provisions are authorized by § 304. Neither alternative is conditioned upon the exhaustion of internal remedies. A member may file a written complaint with the Secretary, who then “shall investigate,” and if he finds that the complaint has merit “he shall, without disclosing the identity of the complainant, bring a civil action . . . for such relief . . . as may be appropriate.” 73 Stat. 531. There is no specific time in which the Secretary must act, but if he should delay or fail to take any action, the member may himself commence litigation in a federal court.6 Thus, if a Title III complaint has merit, the member has a right to have the Secretary act, or to act himself.
Title IV concerns elections. Before discussing the remedy provided by
The remedy for a violation of Title IV is unique. Although the rights protected by Title IV are obviously of vital importance in achieving the objectives of free and democratic union elections,7 the procedure available to a defeated candidate or dissident member is rigidly defined. He must first exhaust the remedies available under the constitution and by-laws of the union local and of any national or international body of which it is a part. After exhausting such remеdies, or if three calendar months pass without a final response to a request for intraunion relief, the member then has a statutory right to file a complaint with the Secretary of Labor “within one calendar month.” This is the only right granted to an individual union member aggrieved by a violation of Title IV. But the invocation of that right gives rise to a series of statutory commands addressed first to the Secretary and, if there is merit to the complaint, ultimately to the judiciary.
First, “the Secretary shall investigate such complaint.” If he determines that it is without merit, or that the alleged violation has been remedied, that is the end of the matter. The Secretary then has no further duty to act and the member has no statutory remedy of any kind.
If, however, the Secretary finds probable cause to believe that a violation of Title IV has occurred and has not been remedied, “he shall within sixty days
Finally, if after a trial a court finds that an election has not been held within the prescribed time, or that a violation of
The form of the remedial provision in Title IV thus differs from the remedies authorized by other titles in several respects. First, only one statutory remedy is provided; there is no provision for criminаl sanctions or for direct access to the courts by an aggrieved party. Second, the repeated use of mandatory language in describing not only the Secretary‘s duty to investigate and his duty to litigate, but also the remedy which the court is directed to impose, is not matched in other titles. Third, a rigid timetable is imposed on the complainant and the Secretary. Presumably, an individual member‘s failure to invoke a union remedy within the time specified in the by-laws, or a failure to file a complaint with the Secretary within one month from the union‘s denial of relief, would be fatal.8 The 60-day limit on the Secretary‘s time to investigate and the prohibition against a court stay pending appeal, also stress the urgency and rigidity of the timetable. Finally, unlike other remedial provisions authorizing such relief as may be appropriate, the single remedy specified in
The structure of the entire statute strongly suggests that the mandatory language used in
II.
Two aspects of the legislative history of
We appropriately begin with a consideration of the bill as introduced in 1958.10 As originally drafted, and as reported by the Senate Committee, S. 3974 would have required “the completion of any investigation of violation and the institution of a civil action to set aside an election, all within 30 days from the date a complaint is filed.”11 It was recognized that such a short period might not be adequate to enable the Secretary to complete his investigation. Accordingly, Senator Smith proposed an amendment providing that the action
“If the investigation necessary to determine probable cause for believing a violation has occurred should require too long a period to permit institution of an action with 30 days, no remedy would be provided for a violation of title [IV]. To correct this technical deficiency, the amendment provides that action shall be brought within 30 days after the complaint is filed, or as soon thereafter as possible.” (Emphasis added.)12
If that language had been enacted into law, there would have been no cut-off on the time in which the Secretary could sue. Presumably for this reason, a few days later, after consultation with the Department of Labor, Senator Smith proposed another amendment extending the period to a maximum of 60 days.
“Mr. Smith of New Jersey. Mr. President, the change I wish to make in my amendment is in the first paragraph which was read, to add after the comma in line 2 the words ‘but in no event after 60 days.’
“The Department of Labor is willing to accept that change.
“Mr. Kennedy. Mr. President—
“Mr. Smith of New Jersey. Mr. President, briefly stated, this amendment is a so-called procedure for election violations.
“Mr. Kennedy. Mr. President, it is my understanding the amendment provides that the Secretary, after a complaint is received on an election case must proceed into action within 60 days. Is my understanding correct?
“Mr. Smith of New Jersey. That is correct.”13
When the legislation was reintroduced at the next Congress, the section had been revised to provide as
The conferees, in accepting the Senate language, interpreted it as follows:
“The Secretary will investigate each such complaint, and if he finds probable cause to believe that a violation of the title has occurred and has not been remedied, he will bring a civil action against the union. . . .” Conf. Rep. 1147 (86th Cong., 1st Sess.), 1959 U.S.Code Cong. & Adm.News, pp. 2503, 2507.
Senator Goldwater‘s analysis of the final bill was:
“Section 402(b) provides that the Secretary must investigate such complaint by a union member, and if he finds probable cause to believe that a violation of this title IV has occurred and has not been remedied, he must within 60 days after such complaint has been filed, bring a civil suit. . . .” 105 Cong.Rec. 19763-5 (Sept. 14, 1959), recorded in Lab.Dept.Leg. Hist. at 838.
Thus, the various reports on the bill, as well as the views of two principal opposing spokesmen, Senator Goldwater for the administration and Senator Kennedy for the Senate majority, agree that the Secretary is both directed to investigate and directed to sue within 60 days when probable cause is found.
Unquestionably the short period in which the Secretary is required to make his investigation was in part intended to terminate promptly an unfounded challenge to the elected officers. But in cases in which the complaint led to the discovery of an actionable violation, it seems equally clear that the short period served the legitimate purpose of expediting the prompt annulment of an invalid election. For the Secretary‘s action is the sole means by which the vital purposes of Title IV may be achieved.17
III.
Against this background I turn to the three arguments which the Secretary has advanced in support of his right to wait more than 60 days to file suit.
A.
First, he contends that even if the statutory admonition is mandatory, in exceptional cases the doctrines of estoppel and waiver should preclude the defendant from disavowing an agreement made to induce the Secretary to forebear litigating for more than 60 days. The Sixth Circuit, in a carefully considered opinion, accepted this argument. Hodgson v. Intеrnational Printing Pressmen and Assistants Union of North America, AFL-CIO, 440 F.2d 1113, cert. denied, 404 U.S. 828, 92 S.Ct. 63, 30 L.Ed.2d 56 (1971). With all respect, I believe the argument is foreclosed if proper deference is given to the expressed intent of Congress, and, in any event, should fail because it permits the Secretary to disguise his general practice in the clothing of an exceptional case. His affidavit plainly indicates that waiver agreements are routinely made. We, therefore, have more than a mere possibility that a recognized exception may expand sufficiently to swallow the general rule; the facts of record indicate that it already has done so.
Inequitable conduct or an express waiver agreement may appropriately toll a statute of limitations which is primarily designed to assure fairness to defendants.18 But if the time specified in the statute is intended to achieve an affirmative legislative purpose, rather than merely to provide an expiration date for a contingent liability, “rigid adherence to the statutory scheme” is of greater importance than an inequitable result in a particular case. Midstate Horticultural Co., Inc. v. Pennsylvania Railroad Co., 320 U.S. 356, 361, 64 S.Ct. 128, 131, 88 L.Ed. 96.
In that case, the defendant, by asserting a desire to investigate the claim and expressly agreeing not to plead the defense of limitations, induced the carrier to withhold suit until after the statute had run. Nevertheless, the Supreme Court‘s analysis of the policies underlying the timeliness requirement imposed by
The analogy to a normal statute of repose was inapplicable to
B.
Second, the Secretary argues that Congress must be aware of his practice and could readily have amended
Congress does not sit as a single-minded watchdog ready to bark out a clarifying amendment at every departure from its command. It is more like a slumbering army; when aroused it has power to march where it will. One who desires to direct its attention to a specific problem must not only have a strong reason to do so, but also must be willing to risk the consequences of unanticipated action. An interpretation of a provision in the controversial and integrated statute which finally emerged from the legislative process in 1959 cannot fairly be predicated on unexplained inaction by different Congresses in subsequent years.
C.
Finally, the Secretary argues that his practice is supported by a legislative purpose to foster negotiated settlement of electoral disputes. Language which the Supreme Court used to explain its denial of preelection relief in Calhoon v. Harvey, 379 U.S. 134, 140, 85 S.Ct. 292, 296, 13 L.Ed.2d 190,21 appears to sup-
port this argument because it indicates that the Secretary has broad discretion in deciding whether or not to file suit. That language, however, was not concerned with the timeliness requirement of
Title IV gives him no discretionary authority to conduct investigations or to commence litigation on his own initiative. Cf. Hodgson v. Local Union 6799, United Steelworkers, 403 U.S. 333, 91 S.Ct. 1841, 29 L.Ed.2d 510. He may only act in response to a complaint, and when a complaint is received, he must conduct an investigation. He also is under a duty to conclude that investigation within 60 days, a period which the Department of Labor accepted as adequate when this provision was under consideration by the Senate.23 The evaluation of the facts disclosed by the investigation is, of course, a matter for the special expertise of the Secretary of Labor.
He may exercise discretion in determining whether or not a violation of Title IV has occurred and also whether the violation may have affected the outcome of an election. In the latter area, however, his problem has been simplified by the Supreme Court decision that any violation constitutes prima facie proof that the election results were tainted. Wirtz v. Hotel, Motel and Club Employees Union, Local 6, 391 U.S. 492, 505-509, 88 S.Ct. 1743, 20 L.Ed.2d 763.
The statute does not give either the court or the Secretary any discretion with respect to the form of remedy that is appropriate after a violation has been found. Mere prohibition of future wrongdoing does not satisfy the statutory mandate; even if another unsupervised election has been held in the interim, a new election is nonetheless required. Wirtz v. Local 153, Glass Bottle Blowers, 389 U.S. 463, 88 S.Ct. 643, 19 L.Ed.2d 705.
Although the only area in which
The Secretary contends that his informal disposition of 175 cases in which actual violations were found demonstrates the wisdom of his policy of negotiation rather than litigation. He does not advise us, however, whether these cases resulted in holding new, supervised elections, as the statute requires. Nor does he indicate how many of these cases were terminated within the 60-day period, or whether any settlement would have been frustrated by filing a timely complaint.
The record indicates that even though extensions have been the rule rather than the exception, delays have generally been rеlatively short—the longest specifically identified having been for less than five months. But it must be remembered that delays negotiated between the Secretary and the union are added to the period in which union remedies are first exhausted, as well as to the statutory 60-day period. Even if we
As a practical matter there is no reason why the filing of a complaint need terminate settlement negotiations. On the contrary, the court‘s participation may be helpful; experience demonstrates that activity and deadlines are a greater spur to meaningful negotiations than inaction and agreed continuances.
Of greater importance is a proper identification of the interests which are the subject matter of negotiation. Once the Secretary has found an actionable violation, the dissident member is entitled to relief. Although he is the aggrieved party in the particular dispute, and is a member of the class for whose benefit the statute was enacted, he has no standing to participate in the negotiations.25 Indeed, if the complainant is a mеmber of some small outlying local, it is not inconceivable that his special problems may be obscured by broader issues under discussion between the Secretary of Labor and the leaders of an international union of which the local is but a tiny fragment. In this very case, although the dispute arose in a Joliet local, the agreement to delay litigation pending discussion was executed by an officer of the international as well as an officer of the local.
I am not persuaded that compliance with the statutory timeliness requirement would undermine the Secretary‘s ability to conduct effective negotiations, and I do not believe that an aggrieved party who has launched a valid attack on the establishment should be made to stand idly by while negotiations are carried on between the Secretary of Labor and the entrenched union leadership. The dissident with a valid claim has a statutory right to have judicial proceedings commenced within the time prescribed by Congress.
To vindicate that right it would be necessary to sustain the union‘s inequitable defense in this case. But the dissident may renew his attack after the next election (which might already have taken place while the Secretary was negotiating anyway), and, as the 1943 decision in Midstate Horticultural Co., Inc. v. Pennsylvania Railroad Co., 320 U.S. 356, 64 S.Ct. 128, 88 L.Ed. 96 teaches us, in the long run rigid adherence to the statutory scheme is of greater importance than the avoidance of an unfair result in a specific case.
IV.
Two final pоints remain. The Secretary suggests (1) that it is important that he be permitted more than 60 days to conclude an investigation which is impeded by union recalcitrance, and (2) that the granting of short continuances is not, after all, a matter of grave importance. As to the first point, the recalcitrance itself should provide sufficient cause to justify the filing of a timely complaint which may be dismissed or amended after the completion of discov-
I would require the Secretary to obey the command of Congress. I respectfully dissent.
Notes
“Sec. 402. (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 401 (including violation of the constitution and bylaws of the labor organization pertaining to the election and removal of officers). The challenged election shall be presumed valid pending a final decision thereon (as hereinafter provided) and in the interim the affairs of the organization shall be conducted by the officers elected or in such other manner as its constitution and bylaws may provide.
(b) The Secretary shall investigate such complaint and, if he finds probable cause to believe that a violation of this title has occurred and has not been remedied, he shall, within sixty days after the filing of such complaint, bring a civil action against the labor organization as an entity in the district court of the United States in which such labor organization maintains its principal office to set aside the invalid election, if any, and to direct the conduct of an election or hearing and vote upon the removal of officers under the supervision of the Secretary and in accordance with the provisions of this title and such rules and regulations as the Secretary may prescribe. The court shall have power to take such action as it deems proper to preserve the assets of the labor organization.
(c) If, upon a preponderance of the evidence after a trial upon the merits, the court finds—
(1) that an election has not been held within the time prescribed by section 401, or
(2) that the violation of section 401 may have affected the outcome of an election,
the court shall declare the election, if any, to be void and direct the conduct of a new election under supervision of the Secretary and, so far as lawful and practicable, in conformity with the constitution and bylaws of the labor organization. The Secretary shall promptly certify to the court the names of the persons elected, and the court shall thereupon enter a decree declaring such persons to be the officers of the labor organization. If the proceeding is for the removal of officers pursuant to subsection (h) of section 401, the Secretary shall certify the results of the vote and the court shall enter a decree declaring whether such persons have been removed as officers of the labor organization.
(d) An order directing an election, dismissing a complaint, or designating elected officers of a labor organization shall be appealable in the same manner as the final judgment in a civil action, but an order directing an election shall not be stayed pending appeal.” 73 Stat. 534.
“When the labor organizatiоn indicates an intention to take voluntary remedial action, or the desire to consider the matter further before deciding whether to take such remedial action, it has been our practice to accept from such labor organization an agreement to extend the statutory sixty-day period for the filing of civil actions to set aside elections. In consideration of the waiver agreement, the Department of Labor withholds the filing of suit for the time being.”
In view of the inconsistencies between the Secretary‘s pronouncement and his practice, I am not sure what weight, in this instance, should be accorded the regulation.
“(b) The Congress further finds, from recent investigations in the labor and management fields, that there have been a number of instances of breach of trust, corruption, disregard of the rights of individual employees, and other failures to observe high standards of responsibility and ethical conduct which require further and supplementary legislation that will afford necessary protection of the rights and interests of employees and the public generally as they relate to the activities of labor organizations, employers, labor relations consultants, and their officers and representatives.”
“The Secretary is directed to investigate the complaint and determine whether there is probable cause . . . .” S.Rep. 187 (86th Cong., 1st Sess.), 1959 U.S.Code Cong. & Adm.News, pp. 2318, 2337. (Emphasis added.)
And in the statement “the court shall declare the election . . . void and direct the conduct of a new election,” the word “shall” has been construed by the Supreme Court as mandatory. Wirtz v. Local 153, Glass Bottle Blowers, 389 U.S. 463, 88 S.Ct. 643, 19 L.Ed.2d 705. Although the same word may have different meanings in different sections of a statute if the context so requires, SEC v. National Securities, Inc., 393 U.S. 453, 466, 89 S.Ct. 564, 21 L.Ed.2d 668, it would be most unusual to interpret the same word differently in the same section. Cf. United States v. Stonehouse, 452 F.2d 455, p. 456, 457 (7th Cir. 1971). The Department of Labor itself consistently interprets the word “shall” as mandatory each time it is used in § 402. In
(1) In § 402(a)(2), the first parenthetical originally read, “including violation of the constitution and bylaws of the labor organization.” It was clarified by adding the words, “pertaining to the election and removal of officers.”
(2) In § 402(b), the original cumbersome language, “within thirty days of filing of such complaint, or as soon thereafter as possible but in no event after sixty days,” was shortened to read “within sixty days after the filing of suсh complaint.” There is no evidence to indicate the legislators understood “within” in “within sixty days” as meaning anything different than “within” in “within thirty days” in the 1958 bill. As the discussion in the text indicates, there can be no doubt that “within thirty days” was understood to mean that the Secretary could not bring suit after thirty days. It is for this very reason that the 2-step amendment was made—to give the Secretary more time but then to be sure he acted before 60 days had expired. The 1959 language thus expresses the same thought as the 1958 language only in fewer words.
(3) Also in § 402(b), the language “provisions of this title” had originally read “provisions of this Act.” The last sentence of § 402(b), providing that “[t]he court shall have power to take such action as it deems proper to preserve the assets of the labor organization,” was moved from a prior subsection “(e).”
(4) In the portion of § 402(c) following subdivision (2), the words “which shall thereupon” in the 1958 bill were clarified to read “the court shall thereupon.”
(5) The last sentence of § 402(c) was added.
(6) Section 402(d) originally provided that an order directing an election could not be appealed. The enacted section is the same except for permitting an appeal but providing that the new election shall not be stayed pending the appeal.
Given these similarities, it is certainly appropriate to begin this examination of the legislative history with the legislative discussions on the 1958 bill. Furthermore, the Department of Labor‘s own volume on the legislative history of the Act includes the 1958 discussions. U.S. Dept. of Labor “Legislative History of the Labor-Management Reporting and Disclosure Act of 1959, Titles I-VI,” 699-764. (Hereinafter cited as Lab.Dept.Leg. Hist.)
“The Secretary is given 60 days after a complaint of a violation has been filed with him in which to bring such an action.” Lab.Dept.Leg.Hist. 698.
Senator John F. Kennedy‘s analysis of S. 505, an earlier bill which contained the same language as S. 1555 on the point in issue, was:
“The Secretary would be required to bring such action within 60 days after a complaint of violation has been filed with him.” 105 Cong.Rec. 887 (Jan. 20, 1959).
Senator Goldwater, in comparing S. 748 with S. 505, said this of the language in issue here:
“[The] Secretary, if he has probable cause after complaint to believe a violation has occurred must within 60 days ask [the] court to set election aside. . . .” 105 Cong.Rec. 1288 (Jan. 28, 1959).
The Senate Committee report interpreted the section as providing
“that the Secretary must investigate complaints meeting the requirements of subsection (a), and if he has probable cause to believe that a violation of section 301 has occurred and has not been remedied, he shall, within 60 days of the filing of such complaint, institute an action in the U.S. district court. . . .” S.Rep. 187 (86th Cong., 1st Sess.), 1959 U.S.Code Cong. & Adm.News pp. 2318, 2365.
Senаtor Kennedy presented an analysis of S. 1555 as passed in the Senate. The relevant portion reads:
“The Secretary would be required to bring such action within 60 days after a complaint of violation has been filed with him.” 105 Cong.Rec. 7024-5 (April 29, 1959), recorded in Lab.Dept. Leg.Hist. at 808.
“The House amendment differs from the Senate bill in that the members of the union, instead of the Secretary, can bring the civil action, and, therefore, there would be no investigation by the Secretary.
“The conference substitute is the same as the Senate bill on this point.” Conf. Rep.No. 1147 (86th Cong., 1st Sess.), 1959 U.S.Code Cong. & Adm.News, pp. 2503, 2507.
“We strongly feel that remedy for remedy, relief accorded by the committee bill is the more efficacious. A paramount consideration in these situations is that the prompt settlement of election disputes is important to the stability of a union and the welfare of its members, and we consider it more likely that the losing faction in an election could conduct its contest more expeditiously by hiring aggressive local cоunsel than by undertaking a trek to Washington to secure the services of the Secretary as plaintiff and moving party.” H.Rep. 741 (86th Cong., 1st Sess.), 1959 U.S.Code Cong. & Adm.News, pp. 2424, 2478.
The fact that the House eventually conceded in requiring action through the Secretary is no indication whatever that the basic philosophy of providing the complainant with a prompt adjudication was conceded. The contrary, in fact, was true. The Senate language protected the right to prompt adjudication even though it required acting through the Secretary. The Senate bill reduced the time for exhaustion of internal union remedies from 6 months in the House version to 3 months. Added were 1 month in which to file a complaint with the Secretary and 60 days within which the Secretary must act. It is unlikely to have been merely coincidental that both bills gave the meritorious complainant an opportunity for a day in court at his initiative, either directly or through the Secretary, within a maximum of 6 months. Under the House provision he could delay filing his suit, but, since his initiative in making that decision was taken away from him in the Senate version, it was only reasonable that some provision be substituted to prevent his rights from being neglected even when he wanted to pursue them. Thus, the 60-day requirement ensures that the complainant with a meritorious claim will get his day in court no later than when he could have had it by his own action under the House bill.
“This policy of repose, designed to protect defendants, is frequently outweighed, however, where the interests of justice require vindication of the plaintiff‘s rights.” Burnett v. New York Central Railroad Co., 380 U.S. 424, 428, 85 S.Ct. 1050, 1054, 13 L.Ed.2d 941.
“We are not unmindful of the hardship to respondent in the special circumstances, though petitioner asserts it would suffer equal hardship if the decision were the other way. Nor do we ignore the strong equitable considerations which, in relation to other types of legislation not so permeated with provisions and policies for protecting the general public interest, might move against denying effect to such an agreement.”
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“After the ‘crisis’ of the Pentagon papers recedes into the past, I expect that Congress will continue to condone Presidential actions that find no warrant in Congressional legislation. We will continue, for example, to see the President wage war without Congressional declaration, to see executive orders substitute for legislation, to see secret executive agreements substitute for treaties, and to see Presidential decisions not to carry out Congressional programs under the label of ‘impoundment of funds.’ I suggested several years ago that the failure of Congress proves or will prove the failure of democracy. And I still think that the danger is nothing less than that.” Kurland, A Comment on Separation of Power, a paper based upon a statement before the House Committee on Government Operations, June 30, 1971, published as a University of Chicago Law School “Occasional Paper.”