James D. HODGSON, Secretary of Labor, Petitioner-Appellant, v. LODGE 851, INTERNATIONAL ASSOCIATION OF MACHINISTS & AEROSPACE WORKERS, AFL-CIO, Defendant-Appellee,, 454 F.2d 545

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 § 402(

a) of the Labor-Management Reporting and Disclosure Act of 1959 (LMRDA), 29 U.S.C. § 482(a). The Act then provided that: “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 opinion in Shultz v. International Printing Pressmen and Assistants’ Union of North America, Civil No. 2288 (E.D. Tenn., filed May 6, 1970), dismissed the case, Shultz v.

Lodge 851, No. 70 C 1579 (N.D.Ill., filed October 29, 1970). It is from that dismissal that this appeal was taken. First, we must note that the Pressmen ease, swpra, 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 § 402 of the Act was drafted in the form of an election law, it should be treated in the same manner as other election laws, which, as generally interpreted, require the timely filing of a complaint as a prerequisite to relief. 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, 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 án 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 §.402(

b) of the Act means that the filing of a complaint within 60 days is a condition precedent to the existence of a cause of action, i.e., that it is a jurisdictional element. If this is so, then the rule that parties cannot confer jurisdiction on a court by agreement would apply and the dismissal of the complaint would have been proper. 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) element 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 filing was a condition precedent to the right and not merely to the remedy. This theory was criticized in Developments in the Law — -Statutes of Limitation, 63 Harv.L.Rev. 1177, 1186-87 (1950) and Note, Clayton Act Statute of Limitations and Tolling by Fraudulent Concealment, 72 Yale L.J. 600, 605 (1963). However, prior to these articles the Supreme Court in at least one case had declared that legislative intent was controlling over such court-made rules of statutory

interpretation. Finally, in Burnett v. New York Central R. Co., 380 U.S. 424, 85 S. Ct. 1050, 13 L.Ed.2d 941 (1965), the Court explicitly rejected the older view. 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 § 402(

c) of the Act (Wirtz v. Local 153, Glass Bottle Blowers Ass’n, 389 U. S. 463, 88 S.Ct. 643, 19 L.Ed.2d 705 (1968), wherein it was held that an election which occurs subsequent to the contested election does not make the Secretary’s suit moot, but rather that a court must order a new election if it finds that the old one was in fact invalid), the same mandatory meaning of the word is necessitated in § 402(b). 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 dealing 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 the 60 day requirement should not be subject to waiver. Normally a statute of limitations is “designed to assure fairness to defendants,” Burnett v. New York Central R. Co., supra, 380 U.S. at 428, 85 S.Ct. at 1054, by eliminating surprise and stale claims.

The union claims neither in this case but relies on the intent of Congress as expressly related to the purposes of the LMRDA. 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, 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 the 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 right's, but rather the Secretary and it is his discretion which should be at question. Since the Secretary has been granted discretion under the Act, 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 challenge as an abuse of discretion, the existence of such discretion unless it was not intended by Congress, is acceptable.

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.” 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 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 § 302 provides that the International can impose a trusteeship on a local “for the purpose of correcting corruption . . ., restoring democratic procedures, or otherwise carrying out the legitimate objects of such labor organization.” To imply that the International has no role to play in post-election remedies is to ignore the plain words of the Act itself. 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 § 402(b): “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 portions of the Act and the general intent of Congress, mere conjecture. Persuasive, but non-conclusive, arguments may be made for either

interpretation. Therefore, we turn to an examination of the LMRDA of 1959 as a whole and especially Title IV in order to find how this provision was intended to be interpreted. 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, 13 L.Ed.2d 190, 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 agepcy 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, 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 uneontested.

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, and subsequent decisions, is necessarily restrained in expeditious rectification of election violations. Post-election remedies are inevitably less effective and Congress has built into the system a substantial delay of approximately five months before suit is to be filed. If we are to encourage the Secretary actually to litigate each case, rather than concentrate on obtaining a voluntary agreement, the delay between election and remedy is threshold-defeating.

One recent study of this question has stated that: “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 imposed. 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 Administrative Procedure Act is applicable to this

section by virtue of

Section 606 of the LMRDA. 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. 5 U.S.C. § 706. .

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 noted that we have determined above that the 60 day period is not jurisdictional, but rather more like a statute of limitations. Although the Sixth Circuit found that the period was mandatory and de-emphasized the waiver issue in favor of the estoppel, our determination leads us, first, to consider the waiver question. It has long been held that a statute of limitations is a personal defense whose protections can be waived.

Allen v. Smith, 129 U.S. 465, 470, 9 S.Ct. 338, 32 L.Ed. 732 (1889); Finn v. United States, 123 U.S. 227, 232-233, 8 S.Ct. 82, 31 L.Ed. 128 (1887). 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 estop-pel 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 and 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 election 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 should have been dismissed because it failed to state a claim upon which relief could be granted. Such a claim had no

part in the disposition reached by the district court. If it had we could find no merit in it for the complaint while not a blow by blow explanation of what happened during the challenged election is not required to be so under Federal procedure. The complaint adequately complies with the requirement of “a short and plain statement of the claim” which is all that is required. Rule 8 Fed.R.Civ.P.

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. .

One notable exception to this rule is In re Brady, 246 App.Div. 561, 282 N.Y.S. 964 (2nd Dept., 1935), in which the court held the time period for filing a complaint to be directory and not mandatory. . “Origin of the right is not per se conclusive whether the limitation of time ‘extinguishes’ it or ‘merely bars the remedy’ with the accepted alternative consequences respecting waiver. Source is merely evidentiary, with other factors, of legislative intent whether the right shall be enforceable in any event after the prescribed time, which is the ultimate question.” Midstate Horticultural Co., Inc. v.

Pennsylvania Railroad Co., 320 U.S. 350, 360, 64 S.Ct. 128, 130, 88 L.Ed. 96 (1943). In that case, only after it had made a careful study of the legislativé history of the Interstate Commerce Act did the Court declare that the period for filing claims could not be extended by express agreement since it found such agreements to be invalid as contrary to the intent of Congress. . “The distinction between substantive and procedural statutes of limitations appears to have arisen in cases involving conflicts of laws, see The Harrisburg, 119 U.S. 199, [7 S.Ct. 140, 30 L.Ed. 358] ; Davis v.

Mills, 194 U.S. 451, [24 S.Ct. 692, 48 L.Ed. 1067] ; Restatement of the Law, Conflict of Laws § 605. While the embodiment of a limitation provision in the statute creating the right which it modifies might conceivably indicate a legislative intent that the right and limitation be applied together when the right is sued upon in a foreign forum, the fact that the right and limitation are written into the same statute does not indicate a legislative intent as to whether or when the statute of limitations should be tolled.

Thus the ‘substantive’-‘procedural’ distinction would seem to be of little help in deciding questions of extending the limitation period.” 380 U.S. at 427, n. 2, 85 S.Ct. at 1054. (Emphasis added.) See also, Kansas City, Missouri v. Federal Pacific Electric Co., 310 F.2d 271, 282-283 (8th Cir. 1962), cert, denied, 371 U.S. 912, 83 S.Ct. 256, 9 L.Ed.2d 171 (1962) (§ 4 Clayton Act treble-damage action); United States v. Southern Pacific Company, 210 F.Supp. 760, 762 (N.D.Cal.1962) (Federal Tort Claims Act); Myers v.

Stevenson, 125 Cal.App.2d 399, 270 P.2d 885, 889 (1st Dist., 1954) (injuries negligently inflicted upon the . plaintiff before birth). Moreover, it is clear that all statutory periods can be tolled in the case of fraudulent concealment. Bailey v. Glover, 88 U.S. (21 Wall.) 342, 22 L.Ed. 636; Exploration Company v. United States, 247 U.S. 435, 38 S.Ct. 571, 62 L.Ed. 1200 (1918). If courts can view the fraudulent concealment exception as being implied by Congress, then clearly there is not an a priori rule here. .

It should be noted that the House version of the LMRDA provided that the union member should prosecute the claims of violation of Title IV rights. The conference committee accepted the Senate version giving this power to the Secretary. Senator Goldwater stated regarding this decision: “ . . . the approach of the Senate bill is substantively preferable in its reliance on Government, rather than exclusively individual, enforcement action.

Since the election standards are designed ta insure honest elections for the benefit of all union members as a matter of public policy, their violation is a matter of public rather than exclusively individual concern, and should be enforcible in the same way as the trusteeship standards of the bill.” Legislative History of the Labor-Management Reporting and Disclosure Act of 1959, Titles I-VI, p. 830. (Dept, of Labor, U.S.

Solicitor) . “The Secretary is directed to investigate the complaint and determine whether there is probable cause to believe that an election was not held in conformity with the requirements of the bill.

Since an election is not to be set aside for technical violations but only if there is reason to believe that the violation has probably affected the outcome of the election, the Secretary would not file a complaint unless there were also probable cause to believe that this condition was satisfied.” Senate Report No. 187 on Senate Bill 1555, April 14, 1959, from Legislative History of the LMRDA, supra, at 778, U.S.Code Cong. & Admin.News, p. 2337. . See, Schonfeld v.

Wirtz, 258 F.Supp. 705 (S.D.N.Y., 1966), in which Judge McLean held that if a union member could show that the Secretary had abused his discretion by failing to file suit to have an election set aside after finding substantial violations of Title IV, then the district court could grant relief. It should be noted that in those circumstances the 60 day period would certainly be outrun but the court did not view the period as mandatory. See also, Judge Gesell’s opinion in DeVito v. Shultz, 300 F.Supp. 381 (D.D.C., 1969); contra, Katrinic v. Wirtz, 53 LC ¶ 11,289 (D.D.C.1966) and McArthy v.

Wirtz, 55 LC ¶ 11,944 (E.D. Mo.1967). . § 402(

a) LMRDA, 29 U.S.C. § 482(a). . We have assumed in the absence of any-showing that there was no direct confrontation although as previously indicated in this opinion it could be persuasively argued that Congress was aware of the possible problem and therefore intentionally dropped the clearly mandatory language contained in the 1958 bill. . A decision this aspect of which has been criticized on both legislative history and policy levels, e. g., Wellington, Labor and the Legal Process (1968) p. 206 et seq., but which nevertheless is the controlling case as to pre-election remedies. . Statement of Clyde W.

Summers, Hearings on Union Financial and Administrative Practices and Procedures before the Subcommittee on Labor of the Committee on Labor and Public Welfare, 594, 613, 85th Cong., 2d Sess. (1958). . This period may be substantially longer since the 3 month period for internal union relief does not start to run until the date the complaint is filed with the union. I.M. § 473.400. In the present ease that period was only 6 days, but the time limit there is set by the union constitution only.

In addition, once the 3 months period has expired the union member has 1 month to file a complaint with the Secretary who then has at least 60 days to investigate before he decides whether or not to bring suit.