# Petition for Writ of Certiorari — Wirtz v. Local Unions Nos. 9, 9-A, & 9-B, International Union of Operating Engineers > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385001_0924%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1967 - **Citation:** 387 U.S. 96 ## Text ¢ , ; ‘ ; 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 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 JUL wv nigti rine 0H tor ario office in pn Pie Bigs a J ~ a“ ° ave ' - = a “s a piceiia Gh Sa 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 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, 7 6 9 4 cs ad .4 ; nt F Dd . & oe Sr 7 + “e -~ \e » PNA TOR A EERE NR ENS ATEN YET ones ~ 7 ~ . ee re ‘ 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 Dated at Denver, Colorado this 4th day of ‘Maroh, ” , 1965. | (s) Wriam E: Dove, . Judge, United States District Court. .- | “ — : oe 7 . re oe en ! Pp --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385001_0924%3A1. Public record. Not legal advice.