Petition for Writ of Certiorari — Wirtz v. Local Unions Nos. 9, 9-A, & 9-B, International Union of Operating Engineers

¢ , ; ‘ ;

o °

as

Pept Mg 4 e- ih saoe 2 . oat ks Fa ae

b Soe ope auf ee si

“LB ety ei i | ‘ ag ue 40 3 mira 9,

OW: Wrenn wanes, Ssonmunr ‘OF Lazon, anaes < "y

Juggs toqtios yt

a Loca Unions Nos: 3, 9+A, anv. 9-B, Tren ATION AL

_ Unton ,or OPERATING ENGDvEERS i

. é.-

mt

_PEETTion vox A Wit ov cuerfonakx 10 baht dante hires =

i, St tet ae ae i

The Solicitor General, on ‘pakiate ot the ‘eal

of Labor, petitions. for a wWrit'of certiorari to review _

the judgment of the United States Court of Ee Appeals

att arty marecor Lefer ac 4a Tane At? .

| | OPINIONS BELOW — Ma WEE Sy

| tthe opinion of ‘the court ot appeals (App. 7 pp.

: 11-16, infra) is ‘reported.at 366 F.2d 911. The’.

opinion of the district court fag CG PP». 18-23, , Safe)

5 is Prete at 254 F. ‘Supp. 980.

st oe < SURISDICTEON ot Saal

; The: jiianent: i the court of saitedin ‘Gapp.:B |

-p. 17, infra) | was -entered on ‘October 6, \1966; : On 3

January 4, 1967;\Mr. Justice ‘White extended the time -

&. fog, filing a petition, fpr a writ of ornOrtE to. esis

“a > 91 "

248-410—67——_1 BIT My i

ear 6% a Ler ich. ey" 4 . ; ~

Re \ > - . o ia Rees 2 .

; . ‘ £ ; 5 . 2- ae $4 . ? t

auding Marets3, 1967 ‘Th jurado of hin Court

tid ii 0540 WAC).

TA ee asia it ‘caesium ev pL van, avoir ‘eid

The “pers Laren kay! gee .

yBTao. 1

for a writ ‘of certiorari: in Wirts vs Local 153, Glass

Psi Pie O TSO Mo seni 4OTDiloF oft ok

“anoittod: Toda.F to

“Disclosure “het “ttt results of

We

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erik te quditer Peiidiie pearomWtdette

ye eigitte totun for emer GRMEETT PT Fo. taisla:

a “lopaiion (predésted dais dish ustitoagion! torte ttiddh

‘ehh it, tras! nade) aid “etterothd) elictiono i! His cont. -

7s whieh, Sposiboally, attached See ‘continuous

were sera wide the

eat hes astm x, pute Gl, final”

jas union a els br aia bat Sy ies Mat

‘wi boca $ See ua Ay inal off tot elsaqqh

Be Sek git abeaed ei ah, ‘AE cot tht

i agit Fit: a es rs fataing® Hulk! drab? af Hota bibh

| by 26 “O86 uBtt 3" seek Heels Wl i” else

qualification.” ‘The district Colitt tounid tht PRR Hie,

Neal rendeted 87 pardenl of thie’ parent WéhPs "mei —

ers ‘ineligible to ruin ‘for’ union ‘offite,” Was’ tiiteakb.

‘able. I¢€’ “determinéa, ‘hidwever,' ‘tat’ ‘iter ult’ He

‘granted only’ as'to thie Sohitest Tob initia Saenétity,

“in sald ‘Taylor Had! sdbghit' to’ participate, atid tit

ci Hapect aby aiid pfads > SC" EOE

Oink Js; * thre: Gourt:ot” “iyi for ee

tends “Cikohit ‘alfitmeéd’ both ‘portidiis’ of the “aig

court’s decision. While recognizing that otter i

‘spéctive’ darididates' who ‘had fléa ‘for ‘iomnitiation had

‘Been been didqtialified. by. ‘the’ same ‘legal! restrietibny, the

bs pr mr fm part og sep eliibeg

Naat mare 3054 beanding? “pitts Was": ee

tain re rere” Ci 28,

te Rae

hav ea nN : 2

cation sont at be ino oe

mie ee

ta F oy ne. ce conitents fh 9B!

x! (Tero 190 “aot .

> 4

eeortgerpoti: ett

ott

\ ef i

count he tad: the Boeretary's authority wes limited :

not only;;to, the subject matter. of the internal com-

3 plaint of . the ‘pnign <members . who , haye exhausted

— #heir internal, remedies, but, also ito. the. specific of-

flees ne in the complaint (pp,,11-16,. infra.)

O00" yada Oe Gh asebeitG eRete yates a

ery a “

i ix aM | SIO fio

nc baa in Warts v. ‘Local No. 153, Cass * .

. Bottle Blowers Ahinidition. decided by. the Court of

_ Appeals for the Third Cirenit, and i ‘in. Wirtz ve, Local

No, 128,. Laborers’ International Union, decided. by

the Gourt, of. -Appeals. for, the Sixth Circuit, the court

| below, has taken an. erroneously restrictive * view of the

. Remedial powers assigned to. the Secretary of Labor |

under Title IV of Labor-M. ement, Reporting and’

Disclosure Act of 1959. “We. are filing petitions for. -

write. of: eertigrati, in all three cases because we be-_

lieve, that the. limitations - imposed. by. the courts of .

"Appeals in, { these ases, and in Wirte y. Loca}. Unions

_ 410, 410A, 410B & 4100, Internationgl Union of

Operating, Engineers,. 366 F. 2d 438 (C.A, 2), severely

hamper the. jenfarepmet of the ahs pivtected: by

“the Act. TG iiioa.-

mee There i is no. 10 support in the language ¢ of thi tute .

for the restrictive interpretation given it by the court

"below. To’ be sure, the Act authorizes the Secretary

““to''stép” it énfy 'sifter’ a’ union Wiember ‘has’ exhatisted

_ ifeenal inion, remedies,,,:'29 08.0. ABRA),. Hit ‘the

We rates on toctod gs ee fo oie Sb j

4. ~ it oblem |

it ! he ot ae et to Eatoted ame hn .

; in it ich, ya ‘ede, Y, 5 g Petitions

e local by

the international t union has pesrenaarin! progres holding of: a aegelar

election. —

é . ° s

e e .

iia aaaeaainl Sante ee A SIE HO ’ we tit a bs a ate

> 2 : . ~

*

ey ne ens

statite doen thot, in scsi

Pa castes 4

ithit the Hecretaby'g:ins

vestigation ‘or his atithoyity’'‘to Anstitute shit to “the —-

violation’ ‘alleged in the omplaint.” ‘Tt empowers: him -

- to bring‘a civil !action, after iivestigating the union -

. member's ‘complaint; “if he finds: probable’ catisé’ to

* peliéve ghat @ violation of this title: ‘has ooourred -

_# *. #977) (Emphasis | ‘added.) ‘It is ‘significant; we

7 think, that'the: statute is not limited 'to “the ‘violation.

alleged” but is famed in terms which entitle the ‘Sec: ©

retary to proceed, after a protest his been made to the

union ‘and rejected, if he finds any violation to have

occurred.’ And the statute then authorizes the dis+ ’

trict court to set aside not only the eontest challenged

by the complainant but the “invalid election: We.

| submit that, on its face, the statute’ confers ° far

| broader powers on ‘the: Secretary. than the court: below sig

granted him.-°

‘The legislative history of. thie ree as well,- refutes |

the view taken by the eourt below. ‘The exhaustion

requirement of 29 U.8.0. 482(a) was ‘intended to pre--

"Serve “a ‘maximum amount of independence and self-

governinent by giving every international union. the

opportunity” to eorrect improper local elections.’’ 8.

"Rep. No. 187, 86th Cong., Ist Sess:, p. 21; 8,’ Rep,

' No. 1684, 85th Cong., 2d Sess. p. 13. But, that, pur,

; pose.is served in circumstances sueh as: those. pre- %

sented here. - The union has fad that opportunity and

° This language was deliberately: chosen ‘by Congress. Ab

which was butnot enacted (5: 1002, 86th Cong:)

"provided that’ ifthe vation ‘member’ a violation of the

Act the Secretary was to investigate allegation” ‘and

fa an ein Ah found rae cum to Sr

Ss ee ee s a = = = —

=

enjotted, At,,.. The, very. choline init. the Secre-

tary .to; the contests other than that for Financial /

\. Seeretaryie,, | that, the, impermissible. continuous:

good, standing”’, requirement. was, imposgd—was. sub-

mitted ,,to ;the. union by. the complaining member. .

Moreover; since the. Act: was, designed to vindicate —

the .publie’s, Tight to democratically. Tun -unions -and.

"_-hot)simply te advance the private rights of, the indi-

vidual ‘members,who might complain, the Secretary

vshould. nos be lamited in the relief he may obtain ‘eu

‘merely because no union member has seen fit to ‘Spec- “f

ity a contest which has been tainted.’

. Finally, it seems clear that Congress could not have ,

intended, the result,reached. below: Title IV rights— * ~~

‘which are necessary guarantees of union democracy—

are.enforceable solely by the Secretary, unlike rights ©

‘enumerated by Title I,. which are individually en-

forceable.’,.. This Court; has made it clear that as‘to.

. ‘Title IV: “Congress. decided to” utilize the, special ~-

a knowledgasnd discretion of the Sepretary of Labor in.

| “' We do not Ccisdieaabaash the court of appeals to have inp

# requiterient that only’ candidates for office ‘Have standing te

one: before the Secretary, may attack that con Such

a requirement would. | be, plainly : insupportable in. view of the

language of the Act, which allows action by the, Secretary on

the domplaint of “a member:* * *,*-29 U:8.0. 482(a); and: the

legislative : history; which makes. it. clear that the election, pro-

+ ct, are to; enforced . by the Secretary,

Muncie sigh an eit member.* * *,” Ts. Rep. No, TH Wook

Geng, 1st Seas p..21; 8. Rept. Wo, 1684, 86th, Cong. 2d, Sees, —

P-.18 ; There can \be-no question, therefore, that, the Secretary

, may ct, on, the,complaint. of any member, Whether or not, he is

a disspppinted candidate. i jo7 0) i cn yintyin#

Congress tpjected propgsed bills, which jwould have, ‘made

Title IV rights enforceable in a som ate suits: MLR, 8342, HR,

* 400, 86th Cong. . |

. 2

-

| a 9

es sage tee . ©

~

-“xestri¢t the Secretary, who alone m

ee: OES ee ee

order ent ta sere, tbe Pai jp interest." Calon

Marvey, 81, US. 14, J of ni Sa ittle, sense to 978!

ons

under Title IV, to the f four corners of f the complaint

~ made by the union. member. | Iti is ‘the Secretary who

has the very, substantial. powers, of investiga estiga vestigation (29

U.S.C,,521) which are t. be utilized in aid of the suit.

It is the Secretary’s policy, and practice to notify

unions, before an action is | of all violations dis-

closed by his investigation." “Tt would be jomalous if

the abuses which he discovers and which he calls to.the

union’s “ attention were totally irrem . ed

2. As a, matter of practical admjnisiration, the rule

announced by the court below is unsound. | A number

of courts have recognized that union members do not,

‘as a Tule, file: earefully. drafted, complaints: E.g.,

Wirtz ¥. Local Union 169, International Hod Carriers,

246 F. Supp. 741 (D: Nev.). Consequently, if the com:

plaint be the measure of the, Secretary’ 's powers, he may

. often be artificially limited by technical flaws in that

document or ‘by the ‘individual member” s failure to

realize the consequanives of the violation of which he j is

complaining.’

_- 3) The isstie’ ‘hiss presénted is of great importance

to. the-administration. of the elegtion provisions of the .

"The investigation’ conducted by the Secrefary is not Viniited

fr om te eee or scope, of, the complaint received,” or of —

| Union | p protest. Witz v. Local’ 191,

#321 F, Sit rer Looal, 52, erento tee

ere are,@ nu ott: court fans jean

4

>

8 >

4 Act. ™ ony of the lodepa’ suits tinder the Act to date

» have : involved unreasonable ‘restrictions « on candidacy

or. other illegal ‘practices ss which applied to most of

the offices, ‘at stake in each ¢lection. ° And, as, hoted

' supra, “few. union membérs file clear, precise com-

Bn which specifically allége that the violation

complained of affects all the contests in the election.

Thus, under the decision “below, the Secretary would

be barred from seeking complete relief in many ¢ases

where ‘such felief, would be warranted. Beeause of

the time factors involved in this- type of litigation, the

Secretary realistically could not be expected to encour- —

Union 169, * International. Hod..Carriers, ete, 246 F. Supp. 741

_ (D, Nev.) ; Wirte v. Local Unjons No. 406, etc., Operating Engi-

neers, 254 F. Supp. 962 (E.D. La.) ; Wirte v. Local Unions No.

450, ete:, Operating Engineers ngineers, 63 LRRM 2105, 84 L.O. q 11,459

(S.D. Tex.) ; Wirte.v. Hotel, "Motel & Club Employees Union,

Looal 6,58 L.O..% 11,359 (S.D.N,Y.). These cases did not hold,

however, that the Secretary. was barred from seeking effective

relief metely becatse the full ramifications of the illegality were

‘net specified in ‘the internal complaint, Phey, in fact, allowed

relief aa to “every issue which smn deaary ary a biel

to consider and ‘Wirts v. Local 169, supra,

246 F. Supp. 741, 752. But see Wirts ¥. Loéal Union ‘No. 196,

Laborers’ International Hod Carriers’, etc., 231°F. Supp. 590

(N.D:-Ohio), now pending as a compenion petition for certiorari,

and Wirte v..Local 706, Hotel and Restaurant Employees and

Bartenders Union (ED. ‘Mich., ‘No. 27958), not reported, which

dismissed, the complaint on the autharity of the decision below.

isions adoptin wal isp rear .

Sion

‘age a more comprehensive complaint by a union mem-

- ber to the union after remain the full extent of

the since |

CONCLUSION

: For the foregoing reasons, the petition for a writ

of certiorari should be granited.

Respectfully submitted. oe

THURGOOD MARSHALL,

Solicitor General,

BaREFOOT. SANDERS,

Assistant Attorney General,

NATHAN LEWIN,

Assistant. to the Solicitor Guna,

Atan 8. RosENTHAL,

Rosert C. McDiarmi,

ete. | . . |... Attorneys.

CHARLES DoNAHUE,

Solicitor, ' | a

Epwarp D. FRIEDMAN, _ —

_* Deputy Solicitor, :

JAMES R. Bear, |

Associate Solhwior |

Department. of Labor.

| Marcu 1967.

Sts-620-—-0r-==8

o

APPENDIX a ce ae

, Une STATES Courr OF ApPEAIS.

TENTH CIRCUIT

é JuLy Term 1966

| - "No, 8226

W. Witiarp Wirz, SECRETARY OF LaBor, UNITED

States DEPARTMENT OF LABOR, APPELLANT

Vv.

Locat Untons ‘No. 9, 9-A AND 9-B, INTERNATIONAL

Union OF OPERATING ENGINEERS, APPELLEE

No. 8227 a —

- Loca Unions No.9, 9-A AND “OB, Inreniearion AL

~ UNION | oF OPERATING ENGINEERS, CROSS- APPELLANT

ae :

W. -Wiiarp ‘Wim, SECRETARY OF Labor, Unirep

STATES DEPARTMENT OF LABOR, CROSS-APPELLEE

| lean: dal Mig Riatinlie Titian ii iia iain

District Court FOR SHE Distri¢r oF COLORADO

. Before Lzews, BREYTENSTEIN and Hickey, vais

Judges | | hon

HIckey, Circuit J udge — ee

The action was filed’ in the District of Colorado

pursuant to the requirements of Section 402 of the

Labor Management PepETEne and Disclosure Aetf

199 USC § 482 1008) ;

(11),

Taylor and other members of defendant Local Un-

- ions affiliated with the International Operating En-

‘gineers Union filed declarations of candidacy for

various local union offices. . The Constitution of Inter-

national required that the declarations be filed prior

jo January 15th of the year of the’ lection. Taylor

and other members complied with this yequirement

in 1963. In February.%f that year, these members

were notified that under the Constitution | of Inter-

national and Bylaws of the local soit they: were

not eligible to file, < .. -

_ The Constitution, and local_ bylaws tevised April,

1963,, provide that neniinees must ‘be in continuous

_ good-standing for not less than one, year. Good

standing is defined in the Constitution as having paid

--all.eurrent dues to the local union. In \the local By-

laws good standing is defined as payment“of current

quarterly dues. on or before the first day of. each

quarter. -

- “*Taylor-and the other members declared ineligible,

‘ although they paid their quarterly dues, had not paid

on or before the first day of each quarter. This over-

sight in timely payment was the basis for the dis-

qualification in the February notice. When the elec- —

tion was held on June 12, 1963, Taylor, who had

* declared himself a candidate for the Office of Finan- —

cial Secretary, was* therefore excluded from the

ballot. Taylor protested to the Locals and the Inter-

national on July 8, 1963. The protest,,was denied on

September 24, 1963. On October 7; 1963, he filed a

_* protest. under Section 402 with the Secretary of

Labor alleging a violation of Section 401.

The Secretary investigated the complaint, found

probable cause and filed the civil action in the Fed-

eral District Court of, Colorado on 1 December 6, 1963. .

299 USC § 481 ma, ‘

‘

a ke

aie

The trial court, on uncontroverted. facts established — |

by the pretrial conference’ order, ‘stipulations,

evidence adduced.at trial, found the basis .of the,

. qualification of . Taylor ‘unreasonable ; ; and ordered

the Secretary to supervise an election to renin ‘the -

candidates for the Office of Financial’ ~Seeretary.

Taylor was to be included among. the carididates,

This order, contrary to the demands fof. the: Se re-

tary, did not grant relief to other similarly aggrieved.

‘members who had failed to exhaust thgir intérnal |

remedies. -

-The order was based « on two eindbietenes (1) under

Section 402 the scope of the Secretary’s authority and

thereby the jurisdiction % the court~is limited to

aggrieved parties who hav@ exhausted their internal.

remedies; (2). the requirement that -a candidate for

office shall have paid his quarterly due’ on or before

the 1st day of the initial month of:the quarter is an

unreasonable requirement under Sectioxi . 401. . :

The appeal questions the first conclusion regarding

the scope of the Secretary’s authority.

The cross appeal challenges the second conclusion

that the eligibility requirements are unreasonable.

An examination of the legislative history ‘of the

Labor Management Reporting and Disclosure Act dis- |

closes that it was one of the most controversial efforts

before the Congress in a decade. Two years of ex-

tensive public hearings had pointed up the need for .

legislation that. would | (a) sustain the internal ‘sta-

bility of union organizations, (b) guarantee the in-

dividual members :a voice in the democratic control of |

the organization and (c) protect the Tights of the

individual members. -

The sections involved in the appeal . were a part of

the final efforts of Congress:to establish a statutory

Y 5 “a:

scheme to scnimigitedi ~_ purposes. Section 402

—- individual rights. It provides: :

a) A member of: a labor organization eke

| 1). exhaustéd the remedies available under

* * * such organization * * * or (2) who has in-

voked such available remedies without. obtain-

ing. a final. decision within ‘three calendar

. months after their- invocation, may file a com- -

- plaint with the Secretary within one calendar

month thereafter alleging the violation of any

provision of Section 401 of this title (including

: violation of the constitution and bylaws of the

- labor: organization | ‘to the election a

and removal of officers) * "%

' *(b) The Secretary shall investigate - such

. complaint and; if oid 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 com-

, plaint, bring a civil action against’ the Iabor

organization ag an entity inthe district eourt

of the United States in which such labor orga-

‘nization maintains its principal office to set

. asidé, the. invalid election, if any, and to direct

the conduct of an election or hearing and vote

upon the rgmoval of officers under the super-

visien of the Secretary and in accordance with

the ] ns of this subchapte*® * * *

‘*(c) If upon'a preponderance. of the evi-

dence after'a trial upon the merits, the court

finds * * * (2) that, the violation of Section

401 of this title may have affected the outcome

‘of an election, the court shall declare the elec-

‘tion, if’ , td be void and direct the conduct

~

of a new under supervision of the Sec-. - |

retary and, so far as lawful and practicable, in

conformity with the constitution and bylaws of .

_ the labor organization. * * *” .

‘The debates in the Senate at the time of enadiaiiant a

‘learly indicate that all parts of the Act must be read —

‘in conjunction with the’ dther parts. 105 Cong. ‘Ree. |

6720 wae (remarks: of Senator Kennedy).

‘1.

Thus, the act itself clearly indicates a limitation on —

‘the part of the Secretary and the. court to consider °

only matters in which a member has exhausted his

internal remedies. ‘This i js in line with the legislative

purpose to sustain the stability of the union organiza-

tiory by giving it the first opportunity to cortect, a

grievance of an individual member.' ..

~ In v. Local 191, 301 F.2d 445, 448 (1963),

- the’ Sefond Circuit recognized the limitation, ‘(It may

be that some or all of the limitations of Section. 402

such as-the exhaustion of internal remedies, ate rele- -

vant to the suit which that section autho 8 FT.

_ Section 601° gives the Secretary the general in-

vestigative power he sought to enforce in the present

case. Section'601, unlike Section 402, neither requires:

exhaustion of internal remedies nor autHorizes the

Secretary to seek remedies in court.

The trial court properly limi the apforeement to

the Taylor complaint. . |

The pertinent part of Section 4h e) involved. in

the cross appeal provides: ‘TP any election requiréd

‘by this section which is to be held by secret ballet a’ .

reasogaple opportunity shall be given for the nomina-

tion of candidates and every member in good standing

shall be eligible to be a candidate and to hold office

(subj ect to Section 504 of this title and to reasonable .

, qualifications uniformly imposed) * * *.” -

The Constitution’ of International provides: “No

fémber shall.be eligible for eléction, be elected, nor

hold office unless-he shall have been continuously in

‘good standing in the Local Union electing him for

~ not less than one year. * * *”? The Bylaws of Locals

9, 9A, 9B, revised April, 1963, have a dmilan pier

vision in Article VIII, OB oi ide

_ Article VIII, §4 of the revised belee provides,

“Good “Good, standing is defined as follows: That os dues

209 “oes USO § 521, (1965).

G

i +r ct ae

be paid: on or before J anuary 1 , April 1, July 1; October

1, of each year. *

The amended. bylaws . grwvile in Article Vill, .

§3(b),. “In the event there has been no declaration —

of candidacy filed for an elective office, the nominees

must have dues paid for the month in which nomina-

tions will be made; and nominations will be made in

ele VIII, §5° provides, “Nominations of Local

wail with Section 5 of this ‘Article.

Unidn officers will be held at the Regular and Dis-

“trict Meetings during: the Month of May, with elec-

tions during the Month of J une by niail referendum

conducted by secret. ballot among the general member-

ship, and with installation of elected officers during

- the Monthsof July.” ‘

Article VIII, §6, of the. iehtned bylaws provides,

‘ ¥ Allmembers of Locals 9, 9A and“9B shall be eligible

to nominate ‘and vote in all elections provided their

- dues are’ currently paid for the period in which the ~

nominations and elections are held. ‘Nominations of

' Officers and election8 will be held .as stated 3 in Section

_ 5 above.”

A comparison of the qualifications under Sections 4,

3 and 3(b), as conclusively shown by:,the evidence

_- introduced in this case, denied \a vast majority of the

mgmbership ‘currently: paid for the, period. in which

nominations and elections are held and qualified to

| nominate and vote, :the opportunity ; to be a candidate.

for office in the* locals union. : The uncontroverted

evidence. together with ‘an analysis of the require-

ments of the Constitution and Bylaws lead the trial , ae

court to: conélude that” those qualifications ere | un-

reasonable under Section 401(e).:

The findings and ‘conclusions | of the : ‘trial court: are

sustained = the evidence and the ai cf

a"

« ig :

« ‘

— pee Toe Ba aa al lle i 1

| NINETEENTH DAY, SEPTEMBER TERM,

THURSDAY, ‘OCTOBER 6TH, "1966.

Before Honorable David T _ Lewis, Siosisiznble Jean

S. Breitenstein, and Hono ple By ohn J. — Cir-

cuit J padiges.

| “ [Caption anita

“This catse came on to be heard i the trinsoribt oe

record from the United States District Court for the

District. of Colorado and.was argued. by counsel...

On. consideration whereof, \it_ is. ordered and ad-

judged bythe court that the judgment of the said «

Saati. smixt in, lo, cause bp end. She, pampe te heeply |

\ Jpn letieeeh : i ° os

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7

6

9

4

cs ad .4

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oe Sr

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\e » PNA TOR A EERE NR ENS ATEN YET ones ~ 7 ~

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eaten heiniapmanmmiababinsineed nina > 7 eS ne are CNY ae -

Ce

APPENDIX € .

ye STATES. Districr, Court FoR THE District oF

Covongpo

Crm, ACTION | No, 8325 -

MALS Y 919

.- W. Wasa. Wmre, seit LaBor; Unrrep

STATES DEPARTMENT or LABOR » PLAINTIFF

s oo sant e: ' “Vetoes >

2) Sie : > [i Ve :

Locat Unions No, 9, 9-A,~anp 9-B, _LINTERw ation |

UNION OF Opiate” Bworyeens, DEFENDANT

Finpincs oF Fact anp Conouusio&s oF. Laws

\P Pursuant 10 Ruiz 52, FROP

This is an action’ brought t by plaintiff under Title

IV of the Labor-Management Reporting and Disclos-

ure Act of 1959," (73 Stat. 519 et seq., 29°U.S.C. §§'401

et 8eq., (1958 ed. Supp/YIV)); Hereinafter referred to

as*the Act, to set ye an election of officers. ' Upon

the. uncontroverted facts established at the Pre-Trial

Conference, the stipulations submitted by the parties,

and the testimony and evidence adduced at a trial to

the Court on November 24 and 25, 1964, and being

*duly advised in the camnemn the ‘Court makes: the

following: 0

_

FINDINGS OF FACT

1. This civil action seeks to set aside an election of

officers held by défendant, a labor organization en-

gaged in an industry affecting commerce, on June i2,

1963, at Denver, ‘Coloradd. This election was con-

“ducted supject to. the constitution, - the International -

+ tole “gies ZA (18) .

\ =

a

“Union, of Operating Engineers. and eames '% yy:

Lane. Hob to Are Yr

ae An internal: pestent regarding: this: rd ~

filed with the International Union of Operating: Kn-

gineers-:on July 8, 1963, by Vern L. Taylor, Sr; who

was at that,time a member in good standing of defend-

ant labor organization. ._Mr. Taylor received a final

decision from the said, International Union eres

7 nips on September 24,1963; °°. 7.

On October 2, 1963, Mr.. Taylor filed a writhins

complaint with the Secretary of Labor, challenging _

the conduct of this election., The complaint of Mr. -

Taylor alleged that he/had been ruled ineligible under —

defengant’s constitution and bylaws, to be a candidate ©

for the office of, Financial Secretary which he sought

"in the challenged election, and that he had been wrong-

fully excluded from candidacy. for. that office.

4. Mr. Taylor ‘was declared ineligible under a pro-

ion of the International coristitution requiring that

a candidate for office shail have paid his quarterly

dues in adv. on ‘or before the first day. of each

quarter, during the entire year. preceding the election.

5.. The aforesaid requirement, making a man ineli-

gible to run for, office if he paid his dues even one day |

late on one occasion, is a surprising one, and one that

is not designed to accomplish the purpose of limiting

the, officer grqup. to. person's who are intensely inter- 7

ested in the activities of the union.:

_6. A substantial number of the members of defend-

ant labor organization are engaged in construction

work and are subject to seasonal fluctuations in em-

ployment, many of these people are out of work dur-

ing the winter months preceding the election.

-, The requirement ‘that a ution member pay. his

dues on or before the first day of each quarter, with:

ip pn 0 i tc aaa ital

who are out of work.

20 ie

8. Under the senate requirement, appeixianintel y

87% of the members of defendant organization were

Ineligible te be candidates for office in the Gattenged

election.’

9. During the year preceding the election, Mr. Tay-

lor had in fact made all payments of his dues to de-

fendant labor organization during and before the end

of. each quarter, thereby fulfilling all -current dues

payment requirements. At all times during said year,

_ Mr. Taylor was a member in. good standing of defend-

ant labor organization for purposes of employment

referral and representation, voice and vote in its af-

fairs, and rights to ‘aearates benefits under its death

benefits plan.

10. Acting upon Mr. Taylor’ . complaint, the Secre-

tary of Labor caused an investigation to be made of.

the challenged election, and as a result thereof found

. probable cause to believe that-violations of Title IV

of the Act (29 U.S.C. 401 et seq.) had occurred in the

conduet of the challenged election.

11. Notice of this election and: ballots. to voted

therein were mailed by third-class mail to all of de-

fehdant’s members, with the exception of 141 mem-

- bers whose mail had previously been returned to de-

’ fendant by reason of incorrect home address. There

was ho evidence that the mailing of such notice and

batlots to the afdfesaid’ 141 members would have had

any effect.

On “the basis of these ‘findings, the Court “_

Hegehed the Smvemigt

: CONCLUSION OF Lay

1. The. Court hais jurisdiction over, the parties and

ee the subject matter of this action.

- * ee ne the, relief the Secretary of Labor

21

can secure by this action under Section 402(b) ‘of ‘the

Act (29 U.S.C. 482 (b)) is limited to the specific mat-

ters complained about in the complaint filed by- de-

fendant’s. meniber Vern Li. Taylor, St, in acdordance

with Section 402(a) of the Act’'(29 U.S.C. 482(a)).

3. The complaint’ filed with the Secretary of Labor

with respect to the challenged election, on the basis of

which this suit was brought, was directed only ‘to the

_ Office of Financial Secretary. The jurisdiction of this

Court’to grant any relief under Section 402(c)' of the

Act (29 U.S.C. 482(c).), with respect to this election'is .

therefore limited to the one office sought by Mr..

Taylor.

4, Assuming, without deviditie, that. the propriety of

defendant’s method of mailing. out election notices and

Hallots is properly before the Court, it does not appear

that there was any substantial violation of the Act in

this respect. The Act does not require notices to be

- sent by first-class or certified — third-class mail is

sufficient:

4“ - 5. The only matter properly ‘before the Court is the

- question whether the requirement that a candidate for

office shall havé paid his quarterly dues prior to their .

due date on each’ and every oéeasion during the year

preceding the election is-a “reasonable quatification,’* ,

within the meariing of Section 401(e) of the Act, up

the right to be a candidate and to hold office jn defend-

ant labor organization. Upon a study of the letter of -—

the law, the spirit of the law, and the terms and efféct

of the requirement itself, I conclude that this require-

ment is unreasonable, for the following reasons:

(a) ‘The Act eéntemplates.that every member who is

in good standing shalt be eligible to participate fully

in his union’ ©

(b) ‘When a man is in good sthnling iti tetms of

membership, it is surprising to him to learn that he

; ows

2

Ay. noti run for office ifihe paid his dues éeven'one —

late ofione- occasion; iif: he has(id detud? knowledge of.

sack, rejyuirement;, it:cam Operate ada trapiie 109 eh

“99 1 <d) ‘The requirement ‘4s niot; designed: to: :aecomplish

" the; purpose’ of limiting the officer group ‘to persons

“who, Tare intensely: interested) iti: thé activities lof!the

Tanlonadd ft eo Ato tivels powrtalbisdts - uli of tooqens tie’

-

or(+(d) -ARince the: éperation of the rule has-the'effect' of

-exelnding the wast-1itijority of. the membership ftom

-eligibilitys: ‘for, office; it violates, the: spiritof ‘Section

AQ1(e). la erlt et toorert ygitray COCA Oh FOG) th/

(e)'‘While..a requirement, that. ‘a member -be finally

‘paid up, or that he keep his dues paid on ‘a.regular

‘hasis; would. be perfectly reasonable, provided that he

thas some grace peried, defendant’s: requixematst is so

‘strict as.to be arbitrary and wnreasonable,, -;

: (£) The:requirement also: works a aniship on per-

on who are. out, of} work, as, many" of ; excrete S°

members. are during the ‘winter. months}. ji} / *:

6. The disqualification of Vern L. Taylor,.Sr., as

a candidate for, the. office /of: Financial ‘Secrétary in

the. challenged election, was.a.viglation ‘of ‘Seetion 401

(e) of the Act (29.U.S,0, 481(a)), and his exclusion

as,a candidate, may have affected the outcome of the

‘election: for: that’ office. within; thei meaziing of Section

| 402(c)(2) of the Act: (29°U.8.: 482(0)(2))..

It is thereupon’ ORDERED; AND ADI. DGED

thatthe June 1968 election \for the office-of Financial

Seeretary of Local Union 9 was ‘improperly held and

-must.be.-re-run, with all, candidates who desire to do

so, including Vern L.’ Taylor; St., appearing-on the

ballot..; Said election to; be‘ held at the; experise of. the

defendant. Local Union, and onder the’ supervision of

_ the Se of Labor in accordance with the’ pro-

‘visions ‘of, 29°O7F.R., Chapter IV, Part.416,'aud to the

‘se 93 |

extent possible in accordance with the International «

constitution and Local bylaws. |

It is Funraen Onpene axp Apsupaen that the gther »

' xelief requested in the complaint is hereby denied.

> Dated at Denver, Colorado this 4th day of ‘Maroh, ”

, 1965. |

(s) Wriam E: Dove,

. Judge, United States District Court. .-

| “ — : oe 7 . re

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