Hodgson v. Local Union 6799, United Steelworkers of America/Dissent White

Mr. Justice WHITE, dissenting.

If, as in this case, a new election is ordered because a candidate used union facilities when he should not have, the Act directs 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.' 29 U.S.C. § 482(c). I take it, then, that the Secretary is under no obligation, indeed forbidden, to follow a provision of the bylaws or constitution that is unlawful. If, in proceedings that order a new election, the Secretary discovers in the bylaws or constitution a provision regulating elections that he deems unlawful-such as the meeting-attendance rule-but the union insists that it is entirely lawful, does the Secretary simply ignore the provision in holding the election, may he or the union secure a judicial ruling on it, or is court action foreclosed and the Secretary required to follow the provision simply because a member in challenging the election failed to attack the meeting-attendance rule, probably because it did not affect him?

I agree that if Hantzis' claim of using union facilities had been rejected, a new election could not have been ordered even though the Secretary turned up the meeting-attendance rule in his investigation and discovered that the ballot boxes had also been stuffed. But if the Secretary finds an invalid bylaw that purports to govern a new election that has been validly ordered on a claim that has been exhausted, as in this case, the Secretary appears to have expressed grounds in the Act, independent of the complaint-exhaustion requirements, to insist that the new election be conducted in accordance with the law and to insist that a court adjudicated the matter if the union stands by its bylaw provision.