Id. § 402(a). Thereafter, the members may file a complaint with the Secretary, who must investigate the claims of illegality. Id. Upon finding "probable cause" to believe that a violation has occurred, the Secretary must bring a civil action against the union. Id. § 402(b). If the reviewing court finds that violation of the Act "may have affected the outcome of an election," the court must declare the election void and direct that a new election be held under the Secretary's supervision. Id. § 402(c). The Act expressly declares that, "The remedy provided by this title for challenging an election already conducted shall be exclusive." Id. § 403.
If the Secretary declines to bring an enforcement action, dissatisfied union members may obtain judicial review of their grievances by challenging the Secretary's decision. See Dunlop v. Bachowski, 421 U.S. 560, 44 L. Ed. 2d 377, 95 S. Ct. 1851 (1975). In such cases, courts are to determine whether the Secretary's statement of reasons for not bringing an action "evinces that the Secretary's decision is so irrational as to constitute the decision arbitrary and capricious." Id. at 573.
There is nothing in the Act to indicate that Congress intended to permit union members to launch pre-election challenges to the Secretary's interpretation of Title IV of the Act. Rather, the structure of the Act manifests that Congress intended to allow only post-election review of compliance and then only after the Secretary has investigated and considered the validity of a particular complaint. "The lack of any authorization for . . . review at the behest of [union members], when viewed in the context of the limits on review built into the statute . . ., strongly suggests that Congress intended no review at the behest" of union members. Banzhaf v. Smith, 238 U.S. App. D.C. 20, 737 F.2d 1167, 1169 (D.C. Cir. 1984); see also Block, 104 S. Ct. at 2455.
That Congress intended to preclude pre-election review of asserted violations of Section 401(a) also is suggested by Congress' express provision for such review in section 401(c) of the Act, 29 U.S.C. § 481(c) (1982). That provision permits bona fide candidates for union office to bring pre-election suits to enforce rights to equal treatment in the distribution of campaign literature and membership lists. Congress' allowance of pre-election judicial review under section 401(c), but not under section 401(a), evinces a clear intent to preclude pre-election review under section 401(a). See Russello v. United States, 464 U.S. 16, 23, 78 L. Ed. 2d 17, 104 S. Ct. 296 (1983) (when Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is presumed that Congress acts intentionally in making the exclusion).
Finally, the Supreme Court has noted that section 402 "contains its own comprehensive administrative and judicial procedure for enforcing the standards established" in Title IV. Local No. 82, Furniture Moving Drivers v. Crowley, 467 U.S. 526, 104 S. Ct. 2557, 2565, 81 L. Ed. 2d 457 (1984). The Court has determined that section 402 "'sets up an exclusive method for protecting Title IV rights' and that Congress 'decided not to permit individuals to block or delay union elections by filing federal-court suits for violations of Title IV.'" Id. at 2565-66 (quoting Calhoon v. Harvey, 379 U.S. 134, 140, 13 L. Ed. 2d 190, 85 S. Ct. 292 (1964)).
This case is analogous to Calhoon v. Harvey, 379 U.S. 134, 13 L. Ed. 2d 190, 85 S. Ct. 292 (1964), in which union members brought a pre-election suit against the union, alleging that union electoral procedures violated section 101(a)(1) of the Act. The district court dismissed the case for want of jurisdiction. Id. at 136. The Calhoon Court upheld the dismissal, holding that "possible violations of Title IV of the Act . . . are not relevant in determining whether or not a district court has jurisdiction under § 102 of Title I of the Act." Id. at 140. This was so because section 402 "sets up an exclusive method for protecting Title IV rights, by permitting an individual member to file a complaint with the Secretary of Labor challenging the validity of any election because of violations of Title IV." Id. (emphasis added). The district court thus lacked jurisdiction over the case, because "the Act itself shows clearly by its structure and language that the disputes here, basically relating as they do to eligibility of candidates for office, fall squarely within Title IV of the Act and are to be resolved by the administrative and judicial procedures set out in that Title." Id. at 141.
Thus, Calhoon establishes that section 402 is the exclusive remedy and bars assertion of jurisdiction over pre-election suits alleging Title IV violations. Plaintiffs attempt to distinguish Calhoon on the ground that it involved a suit directly against a union, rather than a suit challenging the Secretary's interpretation of the Act. That is a distinction without a difference. The sweeping language of Calhoon reveals that section 402 provides the exclusive remedy for Title IV violations, regardless of who is sued.
Indeed, the Supreme Court decisions following Calhoon adopt a broad reading of that Court's language. In Wirtz v. Bottle Blowers Ass'n, 389 U.S. 463, 19 L. Ed. 2d 705, 88 S. Ct. 643 (1968), the Court noted that "Congress deliberately gave exclusive enforcement authority to the Secretary" and that "Congress emphatically asserted a vital public interest in assuring free and democratic union elections that transcends the narrower interest of the complaining union member." Id. at 473, 475. The Court also has found it "most improbable that Congress deliberately settled exclusive enforcement jurisdiction on the Secretary and granted him broad investigative powers to discharge his responsibilities, yet intended the shape of the enforcement action to immutably fixed by the artfulness of a layman's complaint . . . ." Wirtz v. Laborers' Union, 389 U.S. 477, 482, 19 L. Ed. 2d 716, 88 S. Ct. 639 (1968). The Court has stated that "Congress intended to prevent members from pressing claims not thought meritorious by the Secretary, and from litigating in forums or at times different from those chosen by the Secretary." Trbovich v. United Mine Workers, 404 U.S. 528, 532, 30 L. Ed. 2d 686, 92 S. Ct. 630 (1972). See also Dunlop v. Bachowski, 421 U.S. at 568-70. There is simply no room in the exclusive section 402 enforcement scheme for anticipatory pre-election suits by union members.
B. Legislative History of the Act
The legislative history establishes that Congress specifically declined to authorize Title IV enforcement actions by individual union members. Indeed,
Congress deliberately gave exclusive enforcement authority to the Secretary, having "decided to utilize the special knowledge and discretion of the Secretary of Labor in order best to serve the public interest." In so doing, Congress rejected other proposals, among them plans that would have authorized suits by complaining members in their own right.
Wirtz v. Bottle Blowers Ass'n, 389 U.S. at 473 (quoting Calhoon v. Harvey, 379 U.S. at 140). The conference report on the Act reveals that a House provision which would have allowed union members to bring enforcement actions was rejected in favor of a Senate provision which allowed enforcement actions to be brought only by the Secretary. See H.R. Rep. No. 1147, 86th Cong., 1st Sess., reprinted in 1959 U.S. Code Cong. & Ad. News 2503, 2507. Thus, the conclusion that Congress intended to foreclose pre-election review by union members "is bolstered by indications in the legislative history that Congress considered and declined to include statutory language providing for review at the behest" of union members. Banzhaf v. Smith, 737 F.2d at 1170.
The legislative history also supports reading section 402 as the exclusive means for enforcement of Title IV. The Senate report notes one of the "three principles" that guided drafting of the Act:
Remedies for the abuses should be direct. When the law prescribes standards, sanctions for their violation should also be direct. . . . Still more important, the legislation should provide an administrative or judicial remedy appropriate for each specific problem.
S. Rep. No. 187, 86th Cong., 1st Sess., reprinted in 1959 U.S. Code Cong. & Ad. News 2318, 2323. Congress gave careful consideration to the appropriate form of judicial review for various violations of the Act. Accordingly, it is proper to infer that Congress' failure to provide for pre-election review of voting procedures by union members was intentional.
C. Objectives of the Act
Title IV of the Act was the subject of "extensive and vigorous debate" which
manifested a conflict over the extent to which governmental intervention in this most crucial aspect of internal union affairs was necessary or desirable. In the end there emerged a "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."