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Solis v. Local 234

November 2, 2009

*HILDA L. SOLIS, SECRETARY LABOR, UNITED STATES DEPARTMENT OF LABOR, APPELLANT, JOHN JOHNSON, JR.; MICKEY OSTROWSKI, INTERVENOR-PLAINTIFFS IN D.C.,
v.
LOCAL 234, TRANSPORT WORKERS UNION
*AMENDED PURSUANT TO F.R.A.P. 43(C)



On Appeal from the United States District Court for the Eastern District of Pennsylvania. (D.C. No. 08-cv-1957). District Judge: Honorable Legrome D. Davis.

The opinion of the court was delivered by: Jordan, Circuit Judge

PRECEDENTIAL

Argued September 21, 2009

Before: BARRY, FISHER and JORDAN, Circuit Judges.

OPINION OF THE COURT

The United States Secretary of Labor appeals an order from the United States District Court for the Eastern District of Pennsylvania dismissing the Secretary's complaint under the Labor Management Reporting and Disclosure Act ("LMRDA"), 29 U.S.C. § 401 et seq, for lack of subject matter jurisdiction. The District Court determined that John Johnson's administrative complaint, underlying the Secretary's LMRDA enforcement action, had not been timely filed and that, therefore, the Secretary's effort to seek relief for Johnson against Local 234 of the Transit Workers Union ("TWU")*fn1 could not proceed. For the following reasons, we will reverse the judgment and remand for further proceedings.

I. Background

Throughout April 2007, Local 234 accepted candidate slates for its upcoming election of officers. Johnson, a candidate for president of the Local, submitted a slate nominating Mickey Ostrowski for two different positions, Recording Secretary and Secretary Treasurer.*fn2 On May 7, 2007, Local 234's election committee sent Ostrowski a letter informing him that he had been nominated for two positions and that he had to choose which to pursue, because multiple candidacies are forbidden by the Union. When Ostrowski nevertheless submitted acceptance letters for both positions, the committee informed him that he had violated TWU's nomination procedures and was thus ineligible to run for office. The committee then informed Johnson that, as a result of Ostrowski's disqualification, he no longer had a full slate of candidates and his entire slate was disqualified under TWU's election rule prohibiting partial candidate slates.

Article XV, Section 7, of the TWU constitution establishes procedures for members pursuing election protests. It reads, in relevant part, as follows:

Any member in good standing who believes that he/she has been improperly denied the opportunity to be a candidate for an elective office or position, or who believes that an election in which he/she was a candidate was improperly conducted, may file a complaint with his/her Local Executive Board. If he/she is dissatisfied with the action of the Local Executive Board on his/her complaint, he/she may, within 15 days thereafter, or within 30 days after filing his/her complaint with the Local Executive Board if the Board has not taken final action thereon within that time, file an appeal to the International Union ... .

(App. at B9.)

Evidently relying on that provision, Johnson and Ostrowski filed a complaint on May 30, 2007 with the Local Executive Board (the "pre-election protest"), challenging both the disqualification of Ostrowski as a candidate and the resulting disqualification of the entire Johnson slate. On June 29, 2008, the Executive Board rejected the pre-election protest but advised Johnson and Ostrowski that they could appeal the decision to the International Union under Article XXII of the TWU constitution.*fn3 Johnson, for himself and on behalf of his slate of candidates, then filed a timely appeal with TWU's International Secretary Treasurer, who forwarded the appeal to the International Committee on Appeals ("ICA"). The ICA denied Johnson's appeal on September 19, 2007.*fn4

Local 234 held its election on September 28, 2007, without Johnson as a candidate. Afterward, on October 9, Johnson filed another protest with the Executive Board (the "post-election protest"). When the Executive Board failed to act on that protest, Johnson filed another appeal with the International Union on November 7, 2007. The ICA also failed to act on his appeal, and, on January 15, 2008, Johnson filed an administrative complaint with the Secretary of Labor, under Title IV, § 402, of the LMRDA, 29 U.S.C. § 482, alleging that Local 234 had violated the LMRDA by disqualifying his slate of candidates.*fn5

Title IV of the LMRDA allows aggrieved union members to file administrative complaints directly with the Secretary of Labor, provided that the member has satisfied the exhaustion requirement ...


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