Appeals Court upholds member’s right to file pre- & post-election complaint with DOL

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In Solis v. Transportation Workers Union (TWU) Local 234, the U.S. Court of Appeals for the Third Circuit decided in November of 2009 to overthrow a Federal District Court decision in the Eastern District of Pennsylvania that had dismissed an enforcement action by the Secretary of Labor based on her finding of probable cause that Local 234 of the Transport Workers Union had violated the LMRDA in disqualifying a slate of candidates for election to union offices.

In April of 2007, John Johnson ran for the presidency of Local 234. The union constitution required him to run with a full slate of candidates. The union constitution also required that a candidate could only run for one office. Mickey Ostrowski ran on Johnson's slate for two positions, Recording Secretary and Secretary Treasurer. Local 234's election committee sent Ostrowski a letter asking him to choose one or the other position to run for in light of the constitutional proscription against multiple candidacies. Ostrowski, nevertheless, submitted formal notification that he was running for both positions and as a result the union disqualified him and, after his disqualification, then disqualified Johnson for running with only a partial slate of candidates.

That May, Johnson submitted, pursuant to the union constitution, a timely and procedurally correct pre-election protest to the Local Executive Board, which was rejected, as was his subsequent timely appeal to the International. In September Johnson filed a post-election protest with the Local Executive Board and the International, both of which failed to act. Having exhausted his internal union remedies, Johnson filed a complaint with the Secretary of Labor who found probable cause for a violation of the LMRDA and commenced an enforcement action against the union in Federal District Court. The district court dismissed the action. It held that Johnson had exhausted his internal union remedies after his pre-election protest because the union's constitution can be interpreted to bar post-election protests if a pre-election protest had already been filed and acted upon. Further it held, that even had the constitution permitted both a pre-election and post-election protest, legal precedent starts the clock after the disposition of the pre-election protest. Therefore it held Johnson's complaint to the DoL was untimely and the DoL was barred from investigating and taking action.

The Court of Appeals, in reversing the district court and upholding the timeliness of the Secretary's enforcement action, stated that there was nothing in the union's constitution that specifically barred a member from filing both a pre-election and a post-election protest. The language in the constitution relating to election protests was ambiguous and legal precedent requires that any such ambiguity be liberally construed in favor of a complaining union member. Further, under legal precedents interpreting the LMRDA's exhaustion of internal union remedies requirement, the union would have had to specifically object to Johnson's filing of a post-election complaint. In accepting Johnson's post-election complaint, the union waived any objection it might have had that the second complaint violated a constitutional provision.

The Court of Appeals held as entirely unfounded the district court's blanket supposition that, notwithstanding a constitutional provision that provides for a post-election protest, in all cases the clock on complaints to the Secretary of Labor must run from the time of the pre-election protest. The district court based its finding on a Steelworkers case where the union constitution only allowed pre-election protests. How the court construed a blanket finding from that fact pattern is anyone's guess. The Court of Appeals remanded the case back to Federal District Court for proceedings consistent with its opinion.