Petition — Local Union No. 639, International Brotherhood of Teamsters v. Marshall

Supreme Court brief1977

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WICWAEL RODAK 1. 0)

IN THE p=

Supreme Court of the United States

OctToBER TERM, 1976

No 76-794

LocaL Union No. 639, INTERNATIONAL BROTHERHOOD

OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND

HELPERS OF AMERICA, IND., Petitioner,

DANIEL GEORGE AND Puriuip A, FEASTER

AND

WILLIAM J. Usrery, Secretary of Labor,

Respondents

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

DISTRICT OF COLUMBIA CIRCUIT

S. G. LippMAN

THoMaAs J, Harr

LippMAN & Harr

1801 K Street, N.W., Suite 220

Washington, D.C. 20006

(202) 467-6520

Counsel for Petitioner

Press or Byron S. ADAMS PRINTING, INC., WASHINGTON, D. C.

Page

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EEE: i! nb vdanedben ened 66eeuteeudan<ues 2

QUESTIONS PRESENTED .......--ececcccceseccsercens 2

StraTuToRY PROVISIONS INVOLVED .........-ceeeeeeeee 4

enn GH GE GED 6c ccc ccccccccvcconscescecte 6

Reasons FoR GRANTING THE WRIT ..........0+0e0e00% 8

I. The Decision Below Conflicts With and Seri-

ously Misapplies Recent Decisions of This Court

Concerning the Rights of Intervenors in Actions

Brought by the Secretary of Labor Pursuant to

Title IV of the LMRDA and the Availability of

Awards of Attorneys’ Fees to Litigants in Stat-

WRNNT BRD cccccccsccvecdeecicesicsoscness 8

A. The Decision Below Conflicts With the Deci-

sion of This Court in Trbovich v. United

Mine Workers of America by Imposing Sub-

stantial New Burdens Upon Unions Involved

ee PRD ncn c0sbendéesecsestes 10

B. The Decision Below That Attorneys Fees

May Be Awarded to Intervenors in an Ac-

tion Brought by the Secretary of Labor Pur-

suant to a Statute Which Does Not Ex-

pressly or Impliedly Authorize Fee Awards

Conflicts With the Decision of This Court in

Alyeska Pipeline Service Co. v. Wilderness

PE a ctdhavdnndednnsaneb baeeek bonuses 13

C. The Court Below Has Refused To Follow the

Holdings of This Court in Fleishman Distil-

ling Corp. v. Maier Brewing Co. Concerning

the Applicability of the Common Benefit

Doctrine in Statutory Actions, Erroneously

Asserting That Fleishman Is of ‘‘Doubtful

Validity in Light of Subsequent Decisions’’ 16

ii Index Continued

Page

Il. The Decision Below Conflicts With the Decision

of the United States District Court for the West-

ern District of Pennsylvania Which Decision Is

Currently on Appeal to the United States Court

of Appeals for the Third Cireuit ............. 19

I Le or genie dean tess Bede bil bd 21

Appenpix (Opinion and Judgment of Court of

BORED 000k sk cctkveccvasestocenetateesdes App. la

CITATIONS

CasEs:

Alyeska Pipeline Service Co. v. Wilderness Society, 421

ls ee CE nincnnssenaddencscencecsanss 6, 13, 16

Arcambel v, Wiseman, 3 U.S. (3 Dall) 306 (1796) .... 13

Brennan vy. Local Union 639, 161 U.S. App. D.C. 173,

404 P.24 1608 CEAC. Cir. TBFE) oo cnc ccccccccvces 7

Brennan v. United Steel Workers (District 31), Civil

Action No. 73-957 (W.D. Pa., 1975) ............ 20

Calhoon v. Harvey, 379 U.S. 134 (1964) ............. 8

Day v. Woodworth, 54 U.S. (13 How.) 363 (1851) .... 13

F.. D. Rich Co., Inc. v. Industrial Lumber Co., Inc., 417

Wa ee GE - ink 0000s namawcuseneuseseenss 13

Fleishman Distilling Corp. v. Maier Brewing Co., 368

OM. TE6 COOUED . occ cncscconsecces: 9, 11, 13, 16, 18, 19

ame U Cae GE as B MSD Koc tvccaaccéosbicsecd 8,18

ITauenstein v. Lynham, 100 U.S. 483 (1880) ......... 13

McDonald vy. Oliver, 525 F.2d 1217 (5th Cir. 1976) .... 16

Mills vy. Electric Auto-Lite Co., 396 U.S. 375 (1970) ..16, 18

Sprague v. Ticonic National Bank, 307 U.S. 161 (1939) 13

Trbovich v, United Mine Workers of America, 404 U.S.

SP ES 50. cddedcanducavncesvnnesedete 6, 8, 9, 10, 12

Citations Continued iii

Page

STATUTES:

15 U.S.C. § T8m(a) occ. ccc eee cece eer eeeeeereereenee 18

9B U.S.C. § 1920 .... cc reeecccrecccccerceerseccces 13

98 U.S.C. § 1923(a) 2... cece reece cere eerceernreeers 13

D9 U.S.C. § 412 ...cccccccccccccccscccceeecssceres 8, 19

99 U.S.C. § 431(c) ... cee cece eee cece tence eeeeereeee 8

99 U.S.C. §§ 481-483 2.0... cece eee erence eee enees 6,8

99 U.S.C. § 481(e) .... cece e cece ccc rceeeeeceecnrees 6

99 U.S.C. § 482 2... cece cece cece eee eenereeeeeeereres 17

99 U.S.C. & ABB .. ccc cece ccccercccccecvcseccccess 17

99 U.S.C. § BOL(D) .... ccc ce cece cerccccccevesvcres 8

IN THE

Supreme Court of the United States

OcToBEeR TERM, 1976

No.

LocaL Unton No. 639, INTERNATIONAL BROTHERHOOD

or TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND

Hetprers or AMERICA, IND., Petitioner,

DANIEL GEORGE AND Puiuure A. FEASTER

AND

Wuu1aM J. Usery, Secretary of Labor,

Respondents

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

DISTRICT OF COLUMBIA CIRCUIT

The petitioner Local Union No. 639, International

Brotherhood of Teamsters, Chauffeurs, Warehousemen

and Helpers of America, Ind. respectfully prays that a

writ of certiorari issue to review the judgment and

opinion of the United States Court of Appeals for the

District of Columbia Circuit entered in this proceeding

on August 27, 1976.

OPINIONS BELOW

The opinion of the Court of Appeals, not yet re-

ported, appears in the Appendix to this petition. No

opinion was rendered by the District Court for the

District of Columbia.

_ JURISDICTION

The judgment of the Court of Appeals for the Dis-

trict of Columbia Circuit was entered on August 27,

1976. On November 16, 1976, petitioner filed an appli-

cation for extension of time within which to file this

petition up to and including December 11, 1976. Pe-

titioner’s application was granted, on behalf of the

Court, by the Honorable Chief Justice on November

29, 1976. This Court’s jurisdiction is invoked pursuant

to 28 U.S.C. §1254(1).

QUESTIONS PRESENTED

1. Whether the decision of this Court in Trbovich v.

United Mine Workers of America, 404 U.S. 528 (1972),

which decision permitted limited intervention by union

members in actions brought by the Secretary of Labor

pursuant to Title IV of the Labor-Management Report-

ing and Disclosure Act, may be the source of awards

of substantial attorneys’ fees thereby imposing sub-

stantial new burdens upon unions involved in such

actions.

2. Whethes the contributions of intervenors in the

context of Title IV actions brought by the Secretary

of Labor can constitute such unjust enrichment to the

union membership as will justify the invoeation of the

common benetit exception to the ‘‘American Rule’”’

against the shifting of attorneys’ fees.

3. Whether the decision below that awards of attor-

neys fees may be granted to intervenors in an action

brought by the Secretary of Labor pursuant to a

statute which does not expressly or impliedly authorize

awards of such fees conflicts with the decision of this

Court in Alyeska Pipeline Service Co. v. Wilderness

Society, 421 U.S. 240 (1975).

4. Whether the decision of this Court in Alyeska

Pipeline Service Co. v. Wilderness Society, 421 U.S.

240 (1975), permits awards of attorneys fees to inter-

venors in actions brought by the United States Gov-

ernment to enforce publie policy merely because an

ascertainable class may have been benefitted by the

activities of intervenors.

5. Whether the decision below that awards of at-

torneys’ fees may be granted to intervenors in actions

brought by the Secretary of Labor pursuant to Title

IV of the Labor-Management Reporting and Disclo-

sure Act under the common benefit exception to the

‘¢ American Rvle”’ against the shifting of attorneys fees

was improper because the lower Court expressly dec-

lined to follow the decision of this Court in Fleishman

Distilling Corp. v. Maier Brewing Co., 368 U.S. 714

(1967), on the ground that Fleishman was no longer

viable because of subsequent decisions.

6. Whether the Court should consider the questions

presented herein in order to resolve the conflict between

a decision of the District Court of the Western District

of Pennsylvania, which decision is currently on appeal

before the Third Cireuit awaiting decision, and the

District of Columbia Circuit.

STATUTORY PROVISIONS INVOLVED

United States Code, Title 29

) 482. Enforcement*

A member of a labor organization—

(1) who has exhausted the remedies avail-

able under the constitution and bylaws of such

organization and of any parent body, or

_(2) who has invoked such available reme-

dies without obtaining a final decision within

three calendar months after their invocation,

may file a complaint with the Secretary within one

calendar month thereafter alleging the violation of

any provision of section 401 (including violation

of the constitution and bylaws of the labor organi-

zation pertaining to the election and removal of

officers). The challenged election shall be presumed

valid pending a final decision thereon (as herein-

after provided) and in the interim the affairs

of the organization shail be conducted by the of-

ficers elected or in such other manner as its con-

stitution and bylaws may provide.

(b) The Secretary shall investigate such com-

plaint and, if he finds probable cause to believe

that a violation of this title 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 as an entity in the

district court of the United States in which such

labor organization maintains its principal office to

set aside the invalid election, if any, and to direct

the conduct of an election or hearing and vote

2 the removal of officers under the supervision

of the Secretary and in accordance with the pro-

visions of this title and such rules and regulations

as the Secretary may prescribe. The court shall

have power to take such action as it deems proper

to preserve the assets of the labor organization,

(ec) If, upon a preponderance of the evidence

after a trial upon the merits, the court finds—

(1) that an election has not been held with-

in the time prescribed by section 401, or

(2) that the violation of section 401 may

have affected the outcome of an election,

the court shall declare the election, if any, to be

void and direct the conduct of a new election under

supervision of the Secretary and, so far as lawful

and practicable, in conformity with the constitu-

tion and bylaws of the labor organization, The

Secretary shall promptly certify to the court the

names of the persons elected, and the court shall

thereupon enter a decree declaring such persens

to be the officers of the labor organization. If the

proceeding is for the removal of officers pursuant

to subsection (h) of section 401, the Secretary

shall certify the results of the vote and the court

shall enter a decree declaring whether such per-

sons have been removed as officers of the labor

organization.

(d) An order directing an election, dismissing

a complaint, or designating elected officers of a

labor organization shall be appealable in the same

manner as the final judgment in a civil action, but

an order directing an election shall not be stayed

pending appeal.

§ 483. Application of Other Law

No labor organization shall be required by law to

*The complete text of Title IV of the Labor-Management Re- | conduct elections of officers with greater frequency or

porting and Disclosure Act (29 U.S.C. §§ 481-483) is printed in | in a different form or manner than is required by its

the Appendix at pp. 38a-43a. | own constitution or bylaws, except as otherwise pro-

vided by this title. Existing rights and remedies to

enforce the constitution and bylaws of a labor organiza-

tion with respect to elections prior to the conduct

thereof shall not be affected by the provisions of this

title. The remedy provided by this title for challenging

an election already conducted shall be exclusive.

STATEMENT OF THE CASE

On January 23, 1972, petitioner Local Union No.

639 held an election of officers in which respondents

Daniel George and fhilip Feaster and their slate of

candidates ran unsuccessfully. Subsequently, respond-

ents filed a formal complaint with the Secretary of

Labor alleging that petitioner’s conduct of that election

violated the standards provided by Title IV of the

Labor-Management Reporting and Disclosure Act (29

U.S.C. $$ 481-483—frequently hereafter ‘‘Title IV’’).

After an investigation, the Secretary of Labor made

a determination that probable cause existed that viola-

tions of Title [V had occurred. On September 29, 1972,

the Secretary filed a complaint in the District Court

requesting that the Court overturn the January 23,

1972 election and direct the conduct of a new one under

his supervision. On October 10, 1972, respondents

George and Feaster sought leave to intervene in the

action on the authority of Trbovich v. United Mine

Workers of America, 404 U.S. 528 (1972). Leave to

intervene was granted on October 30, 1972.

On July 10, 1973, the Secretary filed a motion for

summary judgment. His motion was granted by the

District Court on August 21, 1973 on the sole ground

that appellant had violated the mailed notice provision

of Section 401(e) of the LMRDA (29 U.S.C. § 481(e)).

The judgment of the District Court overturning the

one Om

election and directing the conduct of a new one under

the supervision of the Secretary was affirmed by the

United States Court of Appeals for the District of

Columbia Cireuit in Brennan, et al v. Local 639, 161

U.S. App. D.C. 173, 494 F.2d 1092 (D.C. Cir. 1974).

On March 6, 1974, respondents George and Feaster

moved the District Court for an award of attorneys

fees. Following the talley of the ballots in the super-

vised rerun election (which resulted in the reelection

of all candidates who had been elected in 1972 by

substantially the same margins), respondents protested

to the Secretary the conduct of that election. After an

extensive investigaticn of respondents’ protests the

Secretary determined that the election should be cer-

tified. On June 12, 1974, the rerun election was certi-

fied to the lower court. On June 24, 1974, the District

Court entered an order certifying the rerun election

and simultaneously denied, without opinion, respond-

ents’ motion for fees.

Respondents appealed both the denial of their mo-

tion for fees to the United States Court of Appeals

for the District of Columbia Circuit and the order cer-

tifying the rerun election, The Secretary took no posi-

tion below on the attorneys’ fees issue nor did the

Court below seek his views. On August 27, 1976, the

Court of Appeals issued its decision affirming the Dis-

trict Court’s certification of the rerun election but re-

versing and remanding on the attorneys fees question.

On the latter question, which is the only issue for which

certiorari is sought, the Court of Appeals held that

attorneys fees could be awarded, under a ‘*common

benefit’’ doctrine, to intervenors in Title IV enforce-

ment suits brought by the Secretary of Labor.

REASONS FOR GRANTING THE WRIT

I, The Decision Below Conflicts With and Seriously Misap-

plies Recent Decisions of This Court Concerning the Rights

of Intervenors in Actions Brought by the Secretary of Labor

Pursuant to Title IV of the LMRDA and the Availability of

Awards cf Attorneys’ Fees to Litiqants in Statutory Actions

Title IV of the Labor-Management Reporting and

Disclosure Act (29 U.S.C. §§ 481-483) establishes mini-

mum standards for the conduct of elections of union

officers. It provides for enforcement of those stand-

ards exclusively through civil actions filed by the See-

retary of Labors' The remedy which a court may grant

in actions brought by Secretary is limited by the statute

to an order voiding the challenged election and direct-

ing the conduct of a new election under the Secretary’s

supervision. Title IV contains neither specific language

authorizing awards of attorneys fees (as do Titles IT

and V of the LMRDA)* nor general remedial lan-

guage (as do Titles I and III) from which the avail-

ability of fees may be inferred.’ During the debates on

Title IV, Congress had specifically considered permit-

ting awards of attorneys fees to private litigants but

‘No individual member may bring an action, Calhoon v. Harvey,

379 U.S. 134 (1964), although members who filed complaints with

the Seeretary have a limited right to intervene in support of the

Secretary. Trbovich v. United Mine Workers, 404 U.S. 528 (1972).

*29 U.S.C, §§ 412 and 501(b), respectively,

* Section 102 of Title I (29 U.S.C. § 412) of the LMRDA au-

thorizes the granting of ‘‘such relief (including injunctions) as

may be appropriate.’’ This Court, in Hall y. Cole, 412 US. 1

(1972), interpreted this language, in the light of the legislative his-

tory and scheme, to permit awards of attorneys fees. Section

301(c) of Title III (29 U.S.C. § 431(¢)) contains the same general

remedial language.

ote ae

ae ee Oe ee ee ee eres

oe ee

)

rejected the concept in favor of a scheme of exclusive

publie enforcement by the Secretary.’

In the face of a statute which meticulously details

the exclusive remedy available under Title IV and in

the face of the clear legislative history of that statute,

the District of Columbia Circuit nevertheless held that.

attorneys’ fees could be awarded, under a ‘common

benefit’? doctrine, to private intervenors in suits

brought by the Secretary of Labor because: (1) Con-

gress is presumed to intend the availability of fee

awards to litigants (including intervenors) in statu-

tory actions unless it has expressly indicated the con-

trary; and (2) individual union members who inter-

vene in Title IV actions brought by the Secretary may

provide a ‘common benefit’? to union members such

as will justify the shifting of fees. The effect of the

lower Court’s decision is to impose significant new bur-

dens upon unions faced with Title TV litigation, bur-

dens never intended by Congress or this Court when

it permitted limited intervention by union members

in such proceedings in Trbovich v. United Mine Work-

ers of America, 404 U.S. 528 (1972).

While the decision below is one of first impression

at the appellate level, the burdens which that decision

will impose upon unions throughout the country and

the failure of the Court below to follow the decisions

of this Court in Trbovich v. United Mine Workers of

America, supra, Alyeska Pipeline Service Co. v. Wil-

derness Society, 421 U.S. 240 (1975), and Fleishman

‘The bill passed by the House of Representatives (H.R. 8342,

86th Cong., Ist Sess.) provided for private enforcement of the

statute with awards of attorneys fees for prevailing plaintiffs.

This approach was rejected in favor of the Senate bill’s scheme

of public enforcement.

Distilling Corp. v. Maier Brewing Co., 368 U.S. 714

(1967) require immediate review.

A. The Decision Below Conflicts With The Decision

Of This Court In Trbovich v. United Mine Workers

of America By Imposing Substantial New Burdens

Upon Unions Involved In Title IV Actions

The decision of the District of Columbia Cireuit

holding that attorneys fees could be awarded to inter-

venors in actions brought by the Secretary of Labor

pursuant to Title IV of the LMRDA (29 U.S.C. § 481

et seq.) is substantially in conflict with the holding of

this Court in Trbovich vy. United Mine Workers of

America, 404 U.S. 528 (1972). In Trbovich, this Court

dealt extensively with the questions of whether and to

what extent individual union members are entitled to

intervene in Title [V proceedings initiated by the See-

retary of Labor, who has exclusive authority to enforce

the rights guaranteed by Title IV. While holding that

individual union members are entitled to intervene in

Title LV actions, the Court narrowly limited the scope

of their intervention to the presentation of evidence

and argument in support of the claims of illegality as-

serted by the Secretary in his complaint and to parti-

cipation in the setting of terms and conditions of any

supervised rerun election which might be ordered by

the Court. 404 U.S. at 536. Beyond support of the

Secretary’s complaint, the Court in Trbovich refused

to permit an intervenor to assert additional grounds

for setting aside a union election because of the addi-

tional burden of litigation such additional claims would

impose on unions. 404 U.S. at 536-537.

In the face of the Congressional concern, as found

by this Court in Trbovich, that the burdens upon de-

fending unions be minimized, the Court of Appeals

nevertheless held that T'rbovich justifies the assertion

by a private intervenor of an additional, and wholly

private claim of relief—a private award of attorneys’

fees. The ruling of the Court below places substantial

new burdens upon unions involved in Title IV actions.

In addition to the expense of paying the fees of inter-

venors’ lawyers, the Court of Appeals has imposed

upon defending unions the substantial expense entailed

in the protracted discovery and litigation which will

be required to resolve the issue of fees in particular

cases.’ The availability of attorneys fees, moreover, will

virtually guarantee intervention (perhaps even mul-

tiple interventions) in every action filed by the Secre-

tary, thereby tending to complicate unduly and need-

lessly lengthen Title IV litigation on substantive issues.

The decision of the Court below that attorneys’ fees

are available to intervenors in actions brought by the

Seeretary is also founded upon the conclusion that in-

tervenors in Title IV actions are conferring the sort

of ‘‘eommon benefit’? upon other union members which

would justify the shifting of fees. It can hardly be said,

however, that the limited scope of intervention which

this Court authorized in Trbovich ean be the basis of

5 Under the standard set forth by the Court below, awards of

fees may be made only if intervenors have made a contribution to

the Secretary—presumably, rendering services and accomplishing

results which the Secretary would not have rendered or accom-

plished on his own (App. 36a-37a). The problems in litigation

of such factual questions will be enormous and will require sub-

stantial further involvement by the Secretary. This Court in

Fleishman Distilling Corp. v. Maier Brewing Co., 368 U.S. 714, 718

(1967), recognized the extent of the judicial burden inherent in

litigating the difficult questions of what constitutes reasonable

attorneys fees.

a ‘common benefit’? such as will support an award of

fees. Where a common fund or benefit is obtained by

the efforts of a litigant, the theory holds, it is fair and

proper to require contribution to the costs of litigation

from those who have benefitted from that litigation. If

this were not done, the class of persons receiving the

benefit would be unjustly enriched at the expense of

the litigant.

In the context of Title IV, one cannot say that the

class of union members has been unjustly enriched as

the result of intervenors’ activities. The union members

from whom fees are sought could not have brought the

lawsuit. In no event, therefore, could they have ineur-

red the costs of achieving the benefits of the suit. In-

deed, their interest in the matter was fully protected

hy their own attorney, the Secretary of Labor, whose

services to the membership were totally without cost

Where Congress provides a lawyer free of charge 50

that no member need pay attorneys’ fees, the rationale

of the ‘*common benefit’? exception does not apply to

justify an award to a volunteer who claims to have per-

formed the functions assigned to th

“yore g e Secretary of

Intervenors in Title IV actions brought b -

retary are entitled to limited eattiaiedlinn in md ron

gation in order to protect their personal partisan in-

terests. 404 U.S. at 538-539. To the extent that their

activities in their own behalf during the litigation ma

incidentally create a ‘‘ecommon benefit’? for the ain

membership generally, that benefit must be seen as

having been conferred gratuitously. .

A question which this Court should resolve, accord-

ingly, is whether its decision i

ecision in T'rbovich vy. United

Mine Workers, supra.—which permitted limited inter-

vention by union members in Title IV actions—can be

extrapolated into the basis for an award of attorneys

fees to intervenors.

B. The Decision Below That Attorneys’ May Be

Awarded To Intervenors In An Action Brought

By The Secretary of Labor Pursuant To A Statute

Which Does Not Expressly or Implicdly Authorize

Fee Awards Conflicts With The Decision Of This

Court In Alyeska Pipeline Service Co. v. Wilder-

ness Society. -

The decision of the Court below that attorneys’ fees

may be awarded under the ‘‘common benefit’’ doctrine

to intervenors in Title IV actions brought by the Sec-

retary of Labor conflicts with the decision of this Court

in Alyeska Pipeline Service Co. v. Wilderness Society,

421 U.S. 240 (1975). In Alyeska, this Court once again —

reaffirmed the ‘American rule” that successful liti-

gants may not normally be awarded attorneys’ fees

absent express statutory authorization or enforceable

contract.’ Noting that, in limited circumstances, the in-

herent equity power of courts may permit an award of

fees where a common fund or benefit is created, when

a losing party has acted in bad faith or for oppressive

¢ The ‘American Rule’’ has been previously stated and reaffirmed

by the Court in Arcambel v. Wiseman, 3 U.S. (3 Dall) 306 (1796) ;

Day v. Woodworth, 54 U.S. (13 How.) 363 (1792) ; Hauenstein v.

Lynham, 100 U.S. 482 (1880) ; Sprague v. Ticonic National Bank,

807 U.S. 161 (1939) ; Fleishman Distilling Corp. v. Maier Brewing

Co., 368 U.S. 714 (1967) ; F.D. Rich Co., Inc. v. Industrial Lumber

Co., Inc., 417 U.S. 116 (1974). It is embodied in 28 U.S.C. §§ 1920,

1923(a).

reasons, or when a party has wilfully disobeyed a court

order, this Court refused to permit, absent express sta-

tutory authorization, an award of attorneys’ fees to

private litigants because they performed the services

of a ‘‘private attorney general’’.

Although not rejecting the concept of the ‘‘common

benefit’’ exception to the ‘‘American Rule’’ in non-

statutory contexts, the Court, in Alyeska, made it clear

that courts should be exceedingly wary before award-

ing, on any basis, attorneys’ fees in actions brought

pursuant to Federal statutes. Where statutory actions

are involved, the Court pointed out, the Congressional

intent must be carefully scrutinized:

Congress has not repudiated the judicially fash-

ioned exceptions to the general rule against allow-

ing substantial attorneys fees, but neither has it

retracted, repealed or modified the limitations on

taxable fees contained in the 1853 statute and its

successors. Nor has it extended any roving auth-

ority to the judiciary to allow counsel fees as

costs or otherwise whenever the courts might deem

them warranted. What Congress has done, how-

ever, while fully recognizing and accepting the gen-

eral rule is itself to make specific and explicit pro-

visions for the allowance of attorneys fees under

selected statutes granting or protecting various

federal rights. * * * Under this scheme of things

it is apparent that the circumstances under which

attorneys fees are to be awarded and the range

of discretion of the Courts in making those awards

are matters for Congress to determine.

421 U.S. at 260. The holding of the Court in Alyeska

can be summarized as follows: where Congress has not

clearly manifested an intention to permit awards of

attorneys fees in a statutory action, such awards may

not be granted, even under a common benefit rationale.

As the Court noted:

Congress itself presumably has the power and

judgment to pick and choose among its statutes and

to allow attorneys fees under some but not others.

421 U.S. at 269.

The Court below has ignored the clear meaning of

Alyeska, formulating instead a rule of interpretation

exactly the reverse of that expressed by this Court.

The Court below held that there is a “‘presumption

against preclusion’? [Emphasis added] of awards of

attorneys’ fees in statutory causes of action. (App. 31a)

This is simply a backhand way of saying that attor-

neys’ fees under the ‘‘common benefit’’ doctrine are

presumed to be intended by Congress absent the clear-

est declaration of intent that they be disallowed. Ob-

viously, there will be few statutes in which the ‘‘pre-

sumption against preclusion’’ will be overcome.

The decision below, it should be noted, in fact applies

the ‘‘ private attorney general’’ theory which this Court

struck down in Alyeska. As was the case in Alyeska,

fees were claimed here because intervenors assert that

they have aided in the enforcement of a public policy.

The mere facts that an easily ascertainable class al-

ways exists in Title IV litigation and that intervenors

here claim to have aided the Secretary rather than

challenge him (as the plaintiffs in Alyeska challenged

the conduct of the Secretary of the Interior), are not

sufficient to take this case outside of the scope of the

Alyeska holding.

While intervenors in Title [V actions may indeed be

aiding in enforcing public policy as a private attorney

general, they cannot claim compensation for so doing

since the Attorney General of the United States, who

files suit in the Secretary’s behalf, is actually present in

all Title IV litigation to vindieate both publie policy

and the rights of the general union membership. As

a result of the lower Court’s decision, private litigants,

including intervenors, who seek to enforce public rights

afforded by other statutes will virtually always be en-

titled to attorneys fees, so long as a definable class

ean be said to have been benefitted, even if the gov-

ernment itself is actively vindicating that policy

through litigation.’

The decision below, accordingly, presents this Court

with the question of whether that decision is in conflict

with the decision of this Court in Alyeska Pipeline

Service Co. v. Wilderness Society, supra.

C. The Court Below Has Refused To Follow The Hold-

ings Of This Court In Fleishman Distilling Corp.

v. Maier Brewing Co. Concerning The Applicability

Of The Common Benefit Doctrine In Statutory Ac-

tions, Erroneously Asserting That Fleishman Is Of

“Doubtful Validity In Light Of Subsequent Deci-

>.,9?9

sion’s

In Fleishman Distilling Corp. v. Maier Brewing Co.,

368 U.S. 714 (1967), this Court considered the ‘‘ Ameri-

’ Although the Court below stated that awards of attorneys fees

were permissible even though a statute also authorizes public en-

forcement, the cases which it relied upon—Mills v. Electric Auto-

Lite, 396 U.S. 375 (1970) and McDonald v. Oliver, 525 F.2d 1217

(5th Cir. 1976)—were inapposite, In Mills, no suit had been filed

by the responsible agency and the statute afforded an independent

private right of action. In McDonald, the applicable statute itself

(Title III of the LMRDA) provided for awards of fees to private

litigants. In the context of Title IV, individual union members

cannot sue independently of the Secretary and the statute makes

no provision for awards of fees.

can Rule’’ concerning attorneys fees and discussed the

origin and applicability of the various exceptions which

had developed to that rule. Discussing the origin of and

rationale underlying the ‘‘common benefit’’ exception,

the Court noted:

In that situation to have allowed the others to

obtain full benefit from plaintiffs efforts without

requiring contribution or charging the common

fund for attorneys fees would have been to enrich

the others unjustly at the expense of the plaintiff.

368 U.S. at 719. The Court further noted that the ex-

ceptions to the ‘‘American Rule’’ were not developed

in the context of statutory causes of action and that:

When a cause of action has been created by

a statute which expressly provides the remedies for

vindication of the cause, other remedies should not

readily be implied. (Emphasis added, citations

omitted )

386 U.S. at 720.

Section 402 of the LMRDA (29 U.S.C. § 482) sets

forth with exactitude the remedies which it has em-

powered the courts to grant—the voiding of the con-

tested election and the direction of a new one to be

conducted under the supervision of the Secretary of

Labor—and expressly states that ‘‘The remedy pro-

vided by this Title for challenging an election already

conducted shall be exclusive.’”’” LMRDA, § 403 (29

U.S.C. § 483). ‘he teachings of Fleishman clearly

require the conclusion that attorney fees unavailable

under Title IV of the LMRDA, especially when one

considers the fact that private enforcement with the

availability of attorneys fees to individual members was

rejected in favor of a scheme of public enforcement by

the Secretary of Labor and the fact that other Titles

of the LMRDA contain either specific language author-

izing an award of fees or language authorizing general

equitable relief.

The Court below, unable to otherwise distinguish

Fleishman from the instant ease, could rid itself of that

ruling only by declaring that F/eishman was no longer a

viable decision. In proclaiming that to be the case the

Circuit Court baldly asserted:

Insofar as Fleishman stands for a broad prin-

ciple against judicial implication of remedies in

the context of statutory causes of action .. . it is

of doubtful validity in light of subsequent deci-

sions. (Emphasis added)

(App. 31a) The Court below then went on to assert that

the later decisions of this Court in Mills v. Electric

Auto-Lite Co., supra. and Ilall v. Cole, supra. effee-

tively overruled Fleishman by employing, in the inter-

pretation of statutes, ‘‘a presumption against preclu-

sion.”’

Contrary to the assertions of the Court below, this

Court’s decisions in Mills vy. Electric Auto-Lite Co.,

supra. and Hall vy. Cole, supra. did not limit or under-

mine its decision in Fleishman in the slightest. On the

contrary, the Court expressly reaffirmed Fleishman in

both cases. 396 U.S. at 391; 412 U.S. at 6. Both Mills

and J/all were straightforward applications of the

principles established in Fleishman.

In Mills, the Court determined that an award of fees

was consistent with the scheme and intent of Section

14(a) of the Securities Exchange Act of 1934 (15

U.S.C. §78n(a)), noting that the statute did not me-

ticulously detail the remedies available to plaintiffs as

did the statute involved in Fleishman. 396 U.S. at 39.

In Hall, the Court, after carefully examining the legis-

lative scheme and extensive history of Title I of the

LMRDA (29 U.S.C. § 411 et seq.) held that the catch-

all relief clause contained in Section 102 of the statute

authorized the award of attorneys fees* and found that

such awards were contemplated by Congress.’ The

Court was also influenced, in Hall, by the fact that only

union members could bring actions under Title I of

the LMRDA and that the unavailability of fees in such

cases would significantly diminish the value of the

rights granted to union members by that Title. Neither

Mills nor Hall support the doctrine expressed by the

Court of Appeals that there is a ‘‘ presumption against

preclusion”’’ of awards of attorneys fees.

The question which the decision below presents,

therefore, is whether this Court’s decision in Fleish-

man Distilling Corp. v. Maier Brewing Co., supra., re-

mains viable and whether it should have been followed

by the Court of Appeals.

Il. The Decision Below Conflicts With The Decision Of The

United States District Court For The Western District Of

Pennsylvania Which Decision Is Currently On Appeal To The

United States Court of Appeals For The Third Circuit

The decision of the District of Columbia Circuit is

squarely in conflict with the decision of the United

States District Court for the Western District of Penn-

*Section 102 of the LMRDA (29 U.S.C. § 412) broadly au-

thorizes courts to grant ‘‘such relief (including injunctions) as

may be appropriate.’’

® Notwithstanding the majority’s analysis of the Congressional

intent in Title I, Justices White and Rhenquist dissented on the

ground that they required ‘‘a far clearer signal from Congress

than we have here to permit awarding attorneys fees in union-

member litigation.’’ 412 U.S. at 16.

sylvania in Brennan v. United Steel Workers (District

31), Civil Action No. 73-957 (1975). In that case, the

District Court referred the question of attorneys’ fees

to a United States Magistrate who issued a Report and

Recommendation finding as a matter of law (1) that

the award of attorneys fees sought contravened the

purposes of the statutory scheme of Title IV, and (2)

that, in any case, intervenors claim did not come within

the ‘‘common benefit’’ doctrine. After a second round

of briefing and argument before the district court it-

self, the court issued a Memorandum, ruling that the

remedy provided in Title IV for successful suits

brought by the Secretary to set aside union elections

is, as a matter of law, exclusive. The district court

found that permitting awards of fees to intervenors

would result in a substantial additional burden upon

defendant unions and that such burden was not contem-

plated by Congress. It further ruled that the principles

established by this Court, in Alyeska Pipeline Service

Co. v. Wilderness Society, supra., precluded the shift-

ing of fees.

The district court’s opinion is presently on appeal

before the United States Court of Appeals for the

Third Cireuit in Brennan v. United Steelworkers of

America (District 31), Appeal No. 76-1169. The case

has been fully briefed and oral argument was had on

November 19, 1976. The issues raised here are those

before the Third Circuit. The Court may wish to defer

ruling upon this petition until the decision of the Third

Circuit is issued.

CONCLUSION

For these reasons, a writ of certiorari should issue

to review the judgment and opinion of the District of

Columbia Circuit.

Respectfully submitted,

S. G. Lippman

THOMAS J. Harr

LippMAN & Harr

1801 K Street, N.W., Suite 220

Washington, D.C. 20006

(202) 467-6520

Counsel for Petitioner

APPENDIX

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 74-1851

Wiliam J. Usery, Jr., SECRETARY OF LABOR

DANIEL GEORGE AND PHILIP FEASTER, APPELLANTS

Vv.

LocAL UNION No. 639 INTERNATIONAL BROTHERHOOD OF

TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELpP-

ERS OF AMERICA, IND.

Appeal from the United States District Court

for the District of Columbia

(D.C. Civil Action 1963-72)

Argued November 26, 1975

Decided August 27, 1976

The Secretary of Labor brought action under Title IV

of the Labor-Management Reporting and Disclosure Act

of 1959 against local union to challenge validity of elec-

tion of officers. Two defeated candidates for union offices

intervened as plaintiffs. Summary judgments in favor

of the Secretary and the intervenors were affirmed, 161

U.S. App. D.C. 173, 494 F.2d 1092. The United States

District Court for the District of Columbia entered an

order approving the Secretary’s certification of the results

of an election conducted under his supervision and en-

tered order denying intervenors’ motion for award of

attorney’s fees, costs and suit money. The intervenors ap-

pealed. The Court of Appeals, Leventhal, Circuit Judge,

held, inter alia, that the court had independent obliga-

tion to review the certification; that the intervening de-

feated candidates had standing to contest the Secretary’s

certification; that the District Court was not required in

its review to conduct an evidentiary hearing; that the

presumption of regularity of a certified rerun election,

conducted under the Secretary’s supervision, together

with the device of summary judgment, permits a fore-

shortened review process to further the statutory objec-

tive of expeditious resolution of post-election disputes; that

in view of the Secretary’s supervision the mere existence

of a statutory violation does not make out a prima facie

case of probable impact on the election outcome although

the Secretary must provide reasons for the conclusion of

lack of probable effect; that failure to post certain no-

tices of election did not affect the election outcome; that

the Secretary’s decision that employer assistance to the

incumbents did not affect the outcome was reasonable;

that a federal court has the power to award attorney’s

fees on a “common benefit” rationale to an intervenor

plaintiff in a suit brought by the Secretary of Labor un-

der Section 402 of the LMRDA; and that a remand was

required to determine whether an award of fees, costs

and suit money was warranted, and if so in what amount.

Affirmed in part; reversed in part and remanded with

directions.

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 74-1851

WILLIAM J. USERY, JR., SECRETARY OF LABOR

DANIEL GEORGE AND PHILIP FEASTER, APPELLANTS

Vv.

LOCAL UNION No. 639 INTERNATIONAL BROTHERHOOD OF

TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELP-

ERS OF AMERICA, IND.

Appeal from the United States District Court

for the District of Columbia

(D.C. Civil Action 1963-72)

Argued November 26, 1975

Decided August 27, 1976

John V. Long and Lester M. Bridgeman for appellants.

Harold A. Mouzon, Attorney, U.S. Department of Labor

with whom Morton Hollander, Attorney, Department of

Justice, was on the brief for appellee Dunlop.

Solomon G. Lippman, with whom Thomas J. Hart, was

on the brief for appellee Local 639 IBT.

Michael H. Gottesman and Robert M. Weinberg, filed a

brief on behalf of United Steelworkers of America, AFL-

CIO as amicus curiae.

Joseph L. Rauh, Jr., filed a brief on behalf of Edward

Sadlowski as amicus curiae.

Before: WRIGHT, LEVENTHAL and WILKEY, Circuit

Judges

Ovinion for the Court filed by Circuit Judge LEVEN-

THAL.

LEVENTHAL, Circuit Judge: This is an appeal from

two orders of the District Court, entered on June 24,

1974, in an action brought by the Secretary of Labor

(Secretary), appellee here, under Title IV of the Labor-

Management Reporting and Disclosure Act of 1959

(LMRDA), 29 U.S.C. § 481 et seg. The first order

granted final judgment, without evidentiary hearing, ap-

proving the Secretary’s certification of the results of an

election conducted under his supervision by defendant

local union, appellee here. The court decreed that the

persons named in the certification were the duiy elected

officials of the union, and appeal is brought by inter-

venors, defeated candidates who were not certified. The

second order denied the motion of those intervenor-

plaintiffs, for an award of attorney’s fees, costs and suit

money. The Secretary, while defending the District

Court’s approval of his certification, takes no position on

the order denying the award of fees. The case presents

significant questions of interpretation of Title IV, as to

the court’s role at the remedial stage of an enforcement

suit to set aside an unlawful union election. We affirm

the District Court’s judgment approving the Secretary’s

certification, but reverse and remand the case on the

attorney’s fees issue.

—_— ee re eee

I. BACKGROUND

A. Statutory Scheme

In response to findings of extensive corruption and im-

proper fiscal and electoral practices by labor unions,‘

Congress passed the LMRDA in 1959. That law injected

into the pre-existing scheme of self-regulation an un-

precedented dose of federal regulation of the internal

affairs of labor organizations. Title IV, set out in the

Appendix, implements a federal guarantee of “free and

democratic unionism.” Section 401 of LMRDA, 49 U.S.C.

§ 481, is a core provision. It establishes procedural safe-

guards for the conduct of union elections, and for the

exercise of candidacy and voting rights by union mem-

bers. However, Congress wished to maximize union de-

mocracy at minimal cost to union institutional effective-

ness. Hence it vested primary enforcement responsibility

for Title [TV in the Secretary of Labor and provided an

exclusive post-election remedy under the Secretary’s stew-

ardship. Certain LMRDA provisions concerning pre-

election union conduct,’ including section 401(c),* are

_ * See Senate Comm. on Improper Activities in the Labor

or Management Field, First Interim Report, S. Rep. No. 1417,

85th Cong., 2d Sess. (1958) ; Second Interim Report, S. Rep.

No. 621, 86th Cong., lst Sess. (1959).

* Title I, 29 U.S.C. §§ 411-15 (“bill of rights” guaractees

and prohibition on discipline for exercise of rights under

the LMRDA); Title IJ, id. § 481 (right to examine union

books, records and accounts) ; Title III, id. §§ 461-66 (union

trusteeship regulation) ; Title V, id. § 501 (fiduciary obliga-

tions of union officials).

* Section 401(c), 29 U.S.C. § 481(c), is the sole exception

to the administrative scheme for Title IV, permitting “suits

prior to election . . . by any bona fide candidate for union

office to enforce the rights, guaranteed by that section, to

equal treatment in the distribution of campaign literature

and access to membership lists.” Calhoon v. Harvey, 379 U.S.

134, 140 n.13 (1964). The provision also guarantees “adequate

enforceable in suits brought by individual union members.

“Provisions concerning the conduct of the election itself,

however, may be enforced only according to post-election

procedures specified” in Section 402, 49 U.S.C. § 482.

Dunlop v. Bachowski, 421 U.S. 560, 566 (1975).* Those

procedures are as follows:

A union member with a grievance must first invoke

his internal union remedies. If he is unable to obtain a

satisfactory resolution within three months of the con-

tested election, he files a complaint with the Secretary.

If upon investigation the Secretary finds probable cause

to believe a violation of Title IV has occurred and has

not been remedied, he is authorized* to bring suit in

federal district court, within sixty days of the complaint,’

to set aside the election. If the court determines upon a

preponderance of the evidence “that the violation may

have affected the outcome of an election,” it is directed

to “declare the election, if any, to be void and direct the

conduct of a new election under supervision of the Secre-

safeguards to insure a fair election,” and this was one of the

bases for the pre-election suit in Yablonski v. United Mine

Workers, 305 F. Supp. 868, order clarified, id. at 876 (D.D.C.

1969), discussed in 151 U.S.App.D.C. 253, 466 F.2d 424

(1972), cert. denied, 412 U.S. 918 (1973). See note 35 infra.

*See generally Note, Pre-Election Remedies Under the

Landrum-Griffin Act: The “Twilight Zone” Between Election

Rights Under Title IV and the Guarantees of Titles ] and V,

74 CoLUM.L.REV. 1105 (1974); Note, Union Elections and

the LMRDA, 81 YALE L. J. 407, 545-65 (1972).

* Although the language of section 402(b) seems manda-

tory, the Secretary has discretion to determine both whether

there has been a probable violation and whether the outcome

of the election was probably affected by the violation. Wirtz

v. Local 153, Glass Bottle Blowers, 389 U.S. 463, 472 (1968) ;

Dunlop v. Bachowski, 421 U.S. 560, 570 (1975), discussed at

pp. 8-9, 12-13 infra.

* See note 55 and accompanying text infra.

a EE te ee

tary and, so far as lawful and practicable,” in conformity

with the union’s constitution and bylaws. After the su-

pervised election is held, “(t]he Secretary shall promptly

certify to the court the names of the persons elected, and

the court shall thereupon enter a decree declaring such

persons to be the officers of the labor organization.”

B. The Instant Case

Daniel George and Phillip Feaster, candidates for

union office, were defeated in the regular election held

January 23, 1972 by defendant Teamsters Local 639.

After unsuccessful exhaustion of internal remedies, they

filed a timely complaint with the Secretary. On Septem-

ber 20, 1972, the Secretary filed suit under section 402,

attacking the election held by Local 639 as invalid be-

cause the union had (a) failed to notify its members of

the election, (b) used an invalid attendance requirement

for candidate eligibility, and (c) made use of union

funds to promote the candidacy of the incumbents. George

and Feaster intervened as plaintiffs in support of the

Secretary’s complaint, under the authority of Trbovich v.

United Mine Workers, 404 U.S. 528 (1972).’

On August 21, 1973, the District Court granted the

motions for summary judgment filed by the Secretary and

by the intervenor-plaintiffs. The court directed defend-

ant to conduct a new election of officers under the Secre-

tary’s supervision. Defendant appealed, but on March 8,

1974, this court affirmed the grant of summary judgment,

* During months immediately before and after institution of

the suit, defendant attempted to remove complainant George,

who was a leader of the dissident forces in the local union,

from union membership. On May 10, 1973, upon the Secre-

tary’s motion, the District Court enjoined defendant from

subjecting any of its members to penalty, discipline or im-

proper interference in violation of section 401, and directed

George’s reinstatement as a member in good standing.

Brennan v. Local Union 639, Int’! Bhd. of Teamsters, 161

U.S.App.D.C. 178, 494 F.2d 1092 (1974).

Meanwhile, on December 16, 1973. after oral argu-

ment in this court, the ballots for the rerun election were

cast, although they were not counted until] March 18,

1974. Intervenor-plaintiffs and other members of Local

639 were dissatisfied with the outcome. On March 26,

1974, they filed with the Secretary of Labor a protest of

the supervised election. The Secretary investigated the

protest. and rejected it. On June 12, 1974, he certified

the results of the rerun to the District Court. On June 24,

1974, the District Court issued the two orders on appeal

here.

Il. THE JUDGMENT APPROVING THE SECRETARY’S

CERTIFICATION

Before we can determine on the merits whether the

District Court properly upheld the Secretary’s certifica-

tion, we must confront the threshold questions of review-

ability, standing and scope of judicial review.

A. Reviewability *

Section 402 directs that “[t]he Secretary shall promptly

certify to the court the names of the persons elected, and

the court shal] thereupon enter a decree declaring such

* Although we read appellee Loca! 639’s position as contest-

ing both reviewability and standing, the Secretary of Labor

concedes that “[t]he court must, of course, determine for it-

self whether to approve the certification of a supervised elec-

tion,” but urges that the “judicial obligation to insure that its

decree conforms to the legal requirements of the Act must be

viewed in conjunction with the Secretary’s statutory respon-

sibilities.” Brief of Appellee John T. Dunlop, Sec’y of Labor,

at 16. Our decision is in accord with the Secretary’s position.

See text at pp. 11-14 infra.

nena oe

LO AO me

persons to be the officers of the labor organization.” The

question arises whether this seemingly mandatory lan-

guage identifies the court’s role as being of a non-judicial

ministerial nature, to “rubber stamp” the Secretary’s cer-

tification by issuing a decree incorporating the Secretary’s

determination as to winners of the contest.

We adopt the view of Judge Gibbons, writing for the

Third Circuit, that section 402 when read in its entirety

“imposes upon the court a judicial obligation with respect

to enforcement of the Secretary’s certification.” Hodgson

v. Carpenters Resilient Flooring Local Union No. 2212,

457 F.2d 1364, 1368 (1972) (emphasis supplied.)*’ The

court’s function is to attach its imprimatur to the Secre-

tary’s certification only if it is satisfied that the super-

vised election has been conducted in conformance with

legal requirements. The Secretary’s prayer for relief asks

the‘court to direct the conduct of the rerun election “in

accordance with the provisions of [Title IV] and such

rules and regulations as the Secretary may prescribe.”

Under the statute, the court directs the supervised rerun

“so far as lawful and practicable, in conformity with the

constitution and bylaws of the labor organization.” Sec-

* See Brennan v. Local 551, United Auto Workers, 486 F.2d

6, 7-8 (7th Cir. 1973); Brennan v. Sindicato Empleados de

Equipo Pesado, 370 F. Supp. 872, 880 (D.P.R. 1974) ; Hodg-

son v. Chain Service Rest. Employees Union Local 11, 355

F. Supp. 180, 188-89 (S.D.N.Y. 1973). Cf. Hodgson v. Int’!

Union of Electrical Workers Local 485, 503 F.2d 219, 223-24

(2d Cir. 1974) ; Wirtz v. Local Union No. 1377, Int’] Bhd. of

Electrical Workers, 299 F. Supp. 641, 642 (N.D. Ohio 1969).

Contra, Brennan v. Silvergate Dist. Lodge No. 50, Machin-

ists 503 F.2d 800, 807-08 (9th Cir. 1974), discussed in note 15

infra; Morrissey v. Shultz, 311 F. Supp. 744, 746 (S.D.N.Y.

1970) (no subject matter jurisdiction for separate action by

union member challenging Secretary’s certification).

10a

tion 402(c), 29 U.S.C. § 482(c). Thus, the statute confers

an independent responsibility on the reviewing court, one

which requires the aid of the Secretary but which cannot

be discharged by mechanical ratification of his determi-

nation.” Moreover, a court’s order “designating election

officials of a labor organization shall be appealable in the

same manner as the final judgment in a civil action. .. .”

Section 402(d), 29 U.S.C. £482(d). Appealability en-

tails reviewability. This permits appellate review at the

behest of both the labor organization” and candidates,

complaining of the manner in which the Secretary-

supervised election was held.

In Dunlop v. Bachowski, the Supreme Court held that

even the Secretary’s initial decision—whether or not to

bring a section 402 action to set aside the union election

—was judicially reviewable, on an “arbitrary and capri-

cious” standard. The Court declared that the Secretary

“failed to make a showing of ‘clear and convicing evi-

dence’ that Congress meant to prohibit all judicial review

of his decision.” 421 U.S. at 568. It follows that the Secre-

tary’s determination as to the validity of the election held

under his supervision is also subject to judicial review.

In Bachowski a reviewing court was interposed even in a

case of failure to take action, where the Secretary has

broad latitude because of his “special responsibility” to

protect unions from frivolous litigation,“ and the situa-

tion presents sensitive problems akin to judicial review

*° See also Trbovich v. United Mine Workers, 404 U.S. 528,

537 n.8 (1972) (court in fashioning suitable remedial order

is not limited to consideration of remedies proposed by the

Secretary).

"See Hodgson v. Carpenters Resilient Flooring Local

Union No. 2212, 457 F.2d 1364, 1368 (3d Cir. 1972).

* See Calhoon v. Harvey, 379 U.S. 134, 140 (1964);

Trbovich v. United Mine Workers, 404 U.S. 528, 532 (1972).

_— CS Ee

lla

of prosecutorial discretion.” Where, as here, the Secretary

has exercised his discretion affirmatively and has called

on the court to provide a judicial decree in fulfillment of

the statutory mandate, the premise of reviewability is

clear. “The s distinctive discretion to decide

whether to bring a Title IV action does not, of course,

give him exclusive power to direct the future course of an

action brought.”** Brennan v. International Union of

Dist. 50, Allied and Technical Workers, 163 U.S.App.D.C.

46, 51, 499 F.2d 1051, 1056 (1974).

B. Standing

The Secretary and appellee Local 639 argue that appel-

lants lack standing to contest the Secretary’s certification

because they are in the case only as “second-class” par-

ties under the qualified intervention permitted by Trbo-

vich v. United Mine Workers, 404 U.S. 528 (1972). In

Trbovich the Court restricted the intervention of com-

plainant union members to the presentation of evidence

and argument in support of the grounds of illegality in

the Secretary’s complaint. Recognizing standing in such

intervenors, appellees contend, would countermand the

teaching of Trbovich, that “Congress intended to insulate

the union from any complaint that did not appear meri-

13 See Bachowski v. Brennan, 502 F.2d 79, 86-88 & cases

cited therein (3d Cir. 1974), rev’d and remanded, 421 U.S.

_ 660 (1975). The Supreme Court rejected the analogy to un-

reviewable prosecutorial discretion, 421 U.S. at 567 n.7, but

sidestepped the question of whether the district court, on a

finding of abuse of discretion, can order the Secretary to bring

a section 402 action. Compare 421 U.S. at 575, with id. at 592,

594-98 (Rehnquist, J., concurring in part and dissenting in

part). See generally Note, Reviewability of Prosecutorial

Discretion: Failure to Prosecute, 75 CotuM. L. REv. 130

(1975).

* See Hodgson v. Carpenters Resilient Flooring Local Union

No. 2212, 457 F.2d 1364, 1367-68 (3d Cir. 1972).

12a

torious to both’a complaining member and the Secretary.”

404 U.S. at 537.

In our view, the Trbovich holding is limited in terms

to the situation of “a post-election enforcement suit.” The

Court in a footnote makes clear that its limitation on com-

plainant intervention “applies only to the claimed grounds

for setting aside the old election, and not to the proposed

terms of any new one that may be ordered.” Intervenors

may assist the court in fashioning a suitable remedial

order, going beyond the remedies proposed dy the Secre-

tary, because once “the court finds merit in the Secre-

tary’s complaint and sets the election aside, then the

statute requires the court to direct a new election in

conformity with the constitution and bylaws of the union,

and the requirements of Title IV.” 404 U.S. at 537 & n.8.

Once the remedial stage is reached, the intervenor ac-

quires fuli party status, to reflect the shift in statutory

focus. With the origina! election set aside, the Secretary’s

role is no longer one of applying his special] expertise to

vindicate the statutory policy in a manner which insulates

unions from frivolous suits and undue governmental! in-

tervention. At this point, his primary responsibility is to

aid the court in fulfilling its obligation to ensure that the

supervised election is conducted in accordance with the

law. And in this process, as in the earlier formulation of

a suitable remedial! order. there is no basis in the statutory

scheme for curtailing the intervenor’s assistance to the

court. Of course. as we develop below, the Secretary’s

discretion and expertise remain important, and there is

room for appreciation of his ameliorative skills, but the

responsibility is now that of the court, not the Secretary.”

> We recognize there is some post-7Trbovich authority to

the contrary. The Ninth Circuit has held that an incumbent

officer who is defeated in the supervised rerun cannot inter-

vene as party defendant to challenge the district court’s ap-

proval of the Secretary’s certification. Brennan v. Silvergate

ee oe oe eer Oe

tle ee, peeling &

13a

C. Scope of Review

The precise question of the scope of review of the Secre-

tary’s certification has not been previously passed on by

this court, although we broached the point in Brennan v.

Int’l Union of Dist. 50. This court solicited the views of

the Secretary as to whether a Title IV action against

District 50 should be stayed pending the outcome of a

membership referendum to decide whether that union

would merge with another union. The Secretary advised

that the merger referendum should proceed, and we noted

that “although not decisive, the Secretary’s voice, in-

formed by his familiarity with the matters pertaining to

union elections and the vindication of Labor’s Bill of

Rights, is rightly accorded weight by the court.” 163 U.S.

App.D.C. at 51, 499 F.2d at 1056. We also credited the

Secretary’s expertise, in approving his decision to proceed

by mail balloting rather than in-person balloting through

the locals. We noted that, unlike the original union elec-

tion, “the Secretary’s supervision of the referendum estab-

lishes a presumption of fairness and regularity that is

not upset by appellant’s showing.” Jd. at 54, 499 F.2d at

1059. The challenger of a supervised election carries a

Dist. Lodge No. 50, Machinists, 503 F.2d 800 (9th Cir. I974).

While we disagree with this reading of Trbovich, Silvergate

is distinguishable, as involving the distinct problem of inter-

vention on the side of the union. The court there noted that

the incumbent officer “has no legitimate interest in the law-

suit apart from those represented by the union as an entity

i.e., to preserve the fairness of the union election.” Jd. at 807.

The Third Circuit takes the opposing view, that the interests

of the defeated incumbent are no longer represented by the

defendant union, now headed by the former dissidents. “The

practical effect of a rule denying intervention in such a case

was to place the Secretary’s certification in many cases be-

yond effective judicial review.” Hodgson v. Carpenters Re-

silient Flooring Local Union No. 2212, supra note 11, 457

F.2d at 1369. See also Brennan v. Local 551, United Auto

Workers, 486 F.2d 6, 8 (7th Cir. 1973).

l4a

heavy burden of persuasion and proof to show that the

Secretary’s certification was arbitrary, capricious. or

otherwise not in accordance with law. Administrative Pro-

cedure Act, 5 U.S.C. § 706(2) (A), (D).*

Appellants urge that the District Court erred in fail-

ing to hold an evidentiary hearing, and provide opportun-

ity for discovery, before passing on the Secretary’s cer-

tification, and in rendering what is in effect a summary

judgment in the face of disputed issues of fact.’’ In its

1972 Carpenters Resilient Flooring decision, the Third

Circuit suggested that an evidentiary hearing is required

and that the summary judgment procedures of Fed.R.

Civ.P. 56 apply.** While we have followed the Third

Circuit’s ruling in certain aspects (see text at note 9

supra) we decline to follow its view that an evidentiary

hearing is required, both on principle and on the subse-

quent authority of Dunlop v. Bachowski.

In Bachowski the Supreme Court reversed a 1974 Third

Circuit ruling permitting a challenge to the “factual

basis” for the Secretary’s conclusion that the statutory

prerequisites for a section 402 suit were not met, and

requiring the Secretary to supply “a sufficiently specific

statement of the factors on which the Secretary relied

%* See Brennan v. Local 551, United Auto Workers, 486

F.2d 6, 8 (7th Cir. 1973); Brennan v. Sindicato Empleados

de Equipo Pesado, 370 F. Supp. 872 (D.P.R. 1974).

77 Appellants also raise the formal objection that summary

judgment should not have been granted because the Secretary

failed to file a statement of material facts as to which there

was no issue, as required by the District Court’s rules. We

note that this point was not raised below, and that appellants

themselves did not conform to the formalities of summary

judgment, in failing to submit affidavits or other court-

approved supplemental material in opposition to the Secre-

tary’s motion for entry of judgment. See Fed.R.Civ.P. 56(e).

** See 457 F.2d at 1369-70.

lia

in reaching his decision . . . so that [the union member

complainant] may have information concerning the alle-

gations contained in his complaint.” 502 F.2d 79, 89-90.

The Bachowski Court made clear that because the statu-

tory scheme relies on the “special knowledge and discre-

tion of the Secretary” as to the probable violation and

probable effect determinations, “the reviewing court is

not authorized to substitute its judgment.” And although

the Secretary must supply a statement of reasons, “[e]x-

cept in what must be the rare case, the court’s review

should be confined to examination of the reasons, and the

determination whether the statement, without more,

evinces that the Secretary’s decision is so irrational as to

constitute the decision arbitrary and capricious.” 421

U.S. at 572-73. Bachowski thus delineates a scope of re-

view “much narrower than applies under 5 U.S.C. § 706

(2) (A) in most other administrative areas,” * and con-

strains the very mode of review.”

We recognize that at the remedial! stage the court has

a broader scope of decision than it does with respect to

the Secretary’s determination whether or not to bring

the original suit. Nonetheless, considerations of “special

knowledge and discretion” are applicable, particularly

where the election is held under the Secretary’s ongoing

** Dunlop v. Bachowski, 421 U.S. at 590 (Burger, C.J., con-

curring).

2° Thus, review may not extend to cognizance or trial of a

complaining member’s challenges to the factual basis of

the Secretary’s conclusion. . . . The full trappings of

adversary, trial-type hearings would be defiant of con-

gressional objectives not to permit individuals to block

or delay post-election disputes, but rather “to settle as

quickly as practicable the cloud on the incumbents’ title

to office”; and “to protect unions from frivolous litigation

and unnecessary interference with their elections.”

Dunlop v. Bachowski, 421 U.S. at 573.

l6a

supervision and control. Indeed, because of the Secretary’s

oversight and familiarity, the rerun, if certified, enjoys

a “presumption of fairness and regularity.” Moreover,

the statutory concern with expeditious resolution of post-

election disputes is no less present at this stage, indicat-

ing the need for a foreshortened review process.

Of course, the Secretary’s reasons for certification can-

not rest on unsubstantiated conclusions, for “the state-

ment of reasons should inform the court and complaining

union members of both the grounds of decision and the

essential facts upon which the Secretary’s inferences are

based.” 421 U.S. at 573-74. And where the statement is

facially insufficient, the court may require supplemental

explanation from the Secretary. Jd. at-574-75.” However,

where the Secretary’s statement on its face indicates a

rationally based decision the court’s task is at an end,

unless the challenger makes a specific factuai proffer of

irregularity, in which event the burden of persuasion

shifts to the Secretary to provide further suppiementation

(the ultimate burden of proof resting with the chal-

lenger).

D. The Merits

In their opposition to the Secretary’s motion for entry

of judgment, appellants raised eight separate protests,

with the Secretary responding to each through the affi-

davit of J. Vernon Ballard, Director of the Office of

Labor-Management and Welfare-Pension Reports. We

consider here only the three protests that the Ballard

72: On remand from the Supreme Court in Bachowski, the

district court ordered supplementation because the Secre-

tary’s initial statement of reasons employed an inconsistent

methodology, crediting Bachowski with the whole infected

vote for some alleged infractions but with only the margin

of defeat for others. Bachowski v. Brennan, 405 F. Supp.

1227, 1234 (W.D.Pa. 1975).

17a

affidavit indicated may have involved conduct violative of

Title IV, although without probable effect on the outcome

of the rerun contest. The reasons stated by the Secretary

for dismissing the other five—essentially that the conduct

in question involved bona-fide union business,* or that

the Secretary’s investigation failed to disclose probable

violations *“—are persuasive on their face, and appellants

have made no showing that would require supplementa-

tion.

As to the conduct which the Secretary found to consti-

tute probable violations, this court may properly insist on

a careful statement of reasons for the conclusion of lack

of probable effect on the outcome of the election.** How-

ever, we do not agree with appellants that a violation of

22 Protest No. 2 charged that incumbents’ announcement

during the rerun of an increase in health and welfare and

pension benefits constituted an illegal distribution of cam-

paign literature. Ballard’s rather detailed answer explained

that the increases were announced in the normal course of

union business and the timing and manner of their announce-

ment were justified by bona-fide considerations. See J.A. 35-38.

Protest No. 8 alleged that in the fall of 1973 the incumbents

had stopped making unauthorized payments to 300-odd shop

stewards in order to intimidate the stewards into supporting

the incumbent slate. Ballard conceded that the union had told

the stewards that extensive legal fees prevented continued

payments, but “[t]he investigation did not support illegal

or coerced use of shop stewards to support the incumbents’

campaign.” See J.A. 42-44.

23 Protest No. 3 (alleged incumbent use of union facilities

to further campaign), see J.A. 38; Protest No. 4 (alleged

discriminatory access to pre-addressed envelopes from Health

and Welfare Fund and union printer), see J.A. 38; Protest

No. 7 (election eve arrest of appellant George allegedly “ar-

ranged” by incumbent president in order to discredit the

George candidacy), see J.A. 42.

** See Dunlop v. Bachowski, 421 U.S. 560, 571-72 (1975);

DeVito v. Shultz, 300 F. Supp. 381, 383 (D.D.C. 1969).

18a

section 401 makes out a prima facie case of probable

impact on the outcome of an election. That is the rule

for violations, not susceptible of quantification, which are

committed in the course of an unsupervised election.

Wirtz v. Hotel Employees Local 6, 391 U.S. 492, 505-09

(1968). “Here, however, the Secretary’s supervision of

the [rerun election] establishes a presumption of fairness

and regularity that is not upset by appellant{[s’] show-

ing.”’ Brennan v. Int’l Union of Dist. 50, 163 U.S.App.D.C.

at 54, 499 F.2d at 1059.

Protest No. 1 raises the defendant’s failure to post

notices of the rerun election and of the eligibility of

intervenor-appellant Daniel George. The District Court

had ordered posting to give notice of the forthcoming

election to members for whom addresses could not be

determined. The posting of George’s eligibility was

ordercu to remedy defendant’s prior unlawful disqualifi-

cation of George from union membership.** Appellants

note that the smallest margin of victory was 143 votes

out of 6000-plus members. and lean on the Secretary’s

own findings that the union posted notice of the election

at only 80 percent of the barns and terminals, and of

George’s revived eligibility at only 4 of 43 barns and

terminals.

Ballard’s affidavit counters that the membership had

actual notice of both the election and George’s eligibility.

2s See note 7 supra.

Protest No. 6 also invo'ved the reprisals taken against -

George, as well as the union’s dismissal of Saul Macklin,

another dissident candidate, from his position as shop steward.

The Ballard affidavit states that the attempted reprisals were

unsuccessful, as both George and Macklin were reinstated

by orders of the District Court, and the investigation indicated

that the action against Macklin was not connected with the

rerun election and did not disclose that any member was dis-

suaded by fear of similar reprisals from supporting the dis-

sident slate. See J.A. 41-42.

19a

As to the election notice, the affidavit states that the

union complied with statutory requirements and the Dis-

trict Court’s order. Ballard pointed out that posting was

only a “back up method,” and that substantially all mem-

bers were personally notified by the union’s mailing of

section 401(e) notices and the employers’ insertion, at

the Secretary’s request, of notices of the December 16

election in the December pay envelopes (J.A. 32-33). As

to George’s eligibility notice, Ballard assumed arguendo

that the union’s failure to post at 39 barns and terminals

stated a violation, but found “no effect on the outcome”

because of the considerable publicity attending the con-

test and the fact that the Government ultimately posted

notices at all of the barns and terminals and personally

handed out notices at the polling places. Of the 32 stew-

ards and 69 rank-and-file members intervewied at random

by Department of Labor personnel, half had seen the

the notices and all knew of George’s eligibility (J.A. 33-

35). Admittedly, it is conceivable that failure to post the

eligibility notice well in advance of the balloting, coupled

with defendant’s previous effort to oust George from mem-

bership, may have worked in a “chilling effect” on voter

turnout. But this is mere speculation in the absence of a

showing by appellants of a significantly reduced turnout

compared to previous elections. On the record as it stands,

we credit the Secretary’s judgment, based on expertise

and investigation of the actual situation, that the elec-

tion was “widely publicized.” **

Protest No. 5 involved two claimed instances of em-

ployer assistance to the incumbents. The first occurred

on December 14, 1973. Two days before the election,

54 union members attending a special meeting of their em-

ployer, the Excavation Construction Company, at which

** See Brennan v. Int’] Union of Dist. 50, Allied & Techn.

Workers, 163 U.S.App.D.C. 46, 53-54, 499 F.2d 1051, 1058-59

(1974).

20a

the company general manager urged the assemblage to

vote in the upcoming election and stated that the in-

cumbents had done a good job for the membership. Beer

and soda were served, and every employee attending re-

ceived two hours of overtime pay. The second incident

involved a loan by Bekins Mideast Van Line Truck

Company of one of its vans free of charge for use by the

incumbents. Appellants charge that since the smallest

margin of victory was only 143 votes, the improper in-

fluence exerted on the 54 members and on those who

saw the Bekins van being used by the incumbents,

coupled with the probable communication of these in-

cidents to other members, undoubtedly had a probable

effect on the outcome of the rerun.

TheBallard affidavit concedes that as to the December

14 meeting the expenditures of money and use of em-

ployer facilities to support the incumbents’ campaign vio-

lated section 401(g), but argues that given the margin of

victory there was no probable effect on the outcome (J.A.

39-40). As to the Bekins van loan, the affidavit states

that this was at most a “technical violation” since

there was bona-fide confusion over whether it was a loan

or rental and voters noticing incumbents’ use of the

van would not have known it was a loan rather than a

rental (J.A. 39-40).

The occurrence of employer assistance to incumbents

in the course of a government-supervised election is in-

deed troubling, but we cannot say that the Secretary

acted without rational basis in concluding there was no

probable effect on the outcome. The margin of victory re-

mains even if all 54 in attendance at the December 16

meeting are credited as would-be voters for the dissident

slate. The Bekins van incident is ambiguous ‘in effect.

Appellants speculate that knowledge of emplover endorse-

ment of the incumbent slate must surely have spread

throughout the local in time to taint the results. We note

that the meeting was held on the Friday before the Sun-

2la

day election, a period which perhaps does not admit of

significant intralocal communication. In any event, while

this conduct was undoubtedly violative of Title IV, the

assessment of its probable effect is vested by statute in

the sound discretion of the Secretary. We think the

Ballard affidavit suffices to establish the Secretary's de-

cision as reasonable, at least in the absence of a proffer

of proof by appellants that knowledge of these inci-

dents was either widespread or in fact swayed votes away

from the dissident slate.

III. THE ORDER DENYING ATTORNEY’S FEES,

CosTs AND SUIT MONEY

The issue of whether a federal court has the power to

award attorney’s fees on a “common benefit” rationale *’

to an intervenor-plaintiff in a suit brought by the Secre-

tary of Labor under section 402 of LMRDA is ap-

parently one of first impression on the appellate level.”

Since the District Court denied intervenor-plaintiffs’ mo-

tion without opinion, we do not know whether the basis

of its ruling was lack of authority to award attorney’s

fees or absence of benefit to the union membership. Ap-

pellee Local 639 objected below on both grounds. The

Secretary of Labor takes no position on these matters.

27 In their reply brief (p. 16), appellants assert for the

first time an additional theory for granting attorney’s fees

predicated on the “bad faith and oppressive litigation prac-

tices” of appellee Local 639. This matter was not presented

below, and we decline to consider whether the facts here

would support a “bad faith” award.

*8One district court has rejected the claim, Brennan v.

United Steel Workers (District 31), Civil Action No. 73-957

(W.D.Pa. Dec. 11, 1975), while another had no occasion to

decide what it regarded as an “open question” because of in-

sufficient “common benefit,” Brennan v. Connecticut State

UAW Community Action Program Council, No. B-743, 74

CCH Lab. Cas. 7 10,294 (D.Conn. Apr. 24, 1974).

22a

A. The “Common Benefit” Rationale

As the Supreme Court recently noted in Alyeska Pipe-

line Co. v. Wilderness Society, 421 U.S. 240, 257-59

(1975), the “American Rule”—the principle, embodied

in an 1853 statute and now codified as 28 U.S.C.

$§ 1920, 1923(a), which bars in the absence of statutory

authorization the award of attorneys fees to the pre-

vailing party in federal litigation—is subject to a long-

standing exception in the “common benefit” rationale.

The Alyeska Court recognized that “[i]n Trustees v.

Greenough, 105 U.S. 527 (1882), the 1858 Act was read

as not interfering with the historic power of equity

to permit the trustee of a fund or property, or a party

preserving or recovering a fund for the benefit of others

in addition to himself, to recover his costs, including

his attorneys’ fees from the fund or property itself or

directly from the other parties enjoying the benefit. That

rule has been.consistently followed.” Jd. at 257-58.

This “historic power of equity,” essentially an apli-

cation of the court’s power when seized of jurisdiction

over a case to award complete relief so as to prevent un-

just enrichment, has developed well beyond the “common

fund” limitation of Greenough. In Sprague v. Ticonic

Nat’l Bank, 307 U.S. 161, 166 (1939), the Court recog-

nized power in the district court to reimburse a plain-

tiff’s litigation expenses even though she sued for her

own benefit and not for a class, because her success

would by operation of stare decisis entitle others to

recover out of the same assets. There is no prerequisite

of pecuniary benefit, as was made clear by Mills v. Elec-

tric Auto-Lite Co., 396 U.S. 375, 392-94 (1970), a case

involving a judicially implied right of action under the

Securities Exchange Act of 1934 to challenge materially

false or misleading proxy solicitation. Hall v. Cole, 412

2° Mills permits “departures from the traditional metes and

bounds of the [common fund] doctrine” where “litigation has

conferred a substantial benefit on the members of an ascer-

23a

U.S. 1 (1972), extends Mills to an express statutory cause

of action.

This development remains undisturbed after Alyeska

because the “common benefit” rationale was not involved

in that case,** and the Court made clear that “Congress

has not repudiated the judically fashioned exceptions

to the general rule against allowing substantial attorney's

fees.” 421 U.S. at 259-60. See also F.D. Rich Co. v.

Industrial Lumber Co., 417 U.S. 116, 129-30 & n.18

(1974) .™

With respect to LMRDA, the courts have uniformly ap-

plied a “common benefit” analysis to award attorney’s

fees to private litigants. The Supreme Court in Hall v.

Cole, supra endorsing earlier decision on the Third Cir-

cuit ** and this court, held that attorney’s fees may be

tainable class, and where the court’s jurisdiction over the

subject matter of the suit makes possible an award that will

operate to spread the costs among them.” 396 U.S. at 392-94.

2% See 421 U.S. at 245, 259-60, noting that this court’s

decision in Alyeska disclaimed reliance on the traditional

equitable exceptions of “common benefit” and “bad faith.”

Wilderness Society v. Morton, 161 U.S.App.D.C. 446, 449, 495

F.2d 1026, 1029 (en banc, 1974).

*t For examples of post-Alyeska ‘common benefit” decisions,

see National Treasury Employees v. Nixon, 172 U.S.App.D.C.

217, 521 F.2d 317 (1975) (mandamus action to require the

President to grant pay adjustments required by statute) ;

Swanson v. American Consumer Indus., Inc., 517 F.2d 555

(7th Cir. 1975) (stockholder derivative suit and class action) ;

Harrison v. United Transp. Union, 530 F.2d 558 (4th Cir.

1975) (suit by railroad conductor against union for breach

of duty of fair representation).

3% Gartner v. Soloner, 384 F.2d 348 (3d Cir. 1967), cert.

denied, 390 U.S. 1040 (1968).

** Bakery & Confectionery Workers Int’] Union v. Ratner,

118 U.S.App.D.C. 269, 335 F.2d 691 (1964); Yablonski v.

United Mine Workers, 151 U.S.App.D.C. 253, 466 F.2d 424

(1972), cert. denied, 412 U.S. 918 (1973).

24a

awarded for suits brought to enforce the “Bill of Rights”

guarantees of Title I of LMRDA. This court’s decision

permitted the recovery of attorney’s fees for a suit under

Title V, which places union officials under federally de

fined fiduciary obligations. Bakery & Confectionery

Workers Int’l Union v. Ratner, 118 U.SApp.D.C. 269, 335

F.2d 691 (1964). Ratner was extended by this court

to a suit brought under section 401(c), the only privately

enforceable provision in Title IV. Yablonski v. United

Mine Workers, 151 U.S.App.D.C. 253, 466 F.2d 424

(1972), cert. denied, 412 U.S. 918 (1973).** And, recently,

the Fifth Circuit applied the reasoning of these decisions

to a suit brought under Title III, which regulates union

trusteeships, a provision enforceable by either the Secre-

tary or union members directly McDonald v. Oliver, 525

F.2d 1217 (5th Cir. 1976).

Significantly, in none of these decisions was there

a statutory provision that expressly authorized the award

made.* Rather, the governing rationale was that union

** Although section 501(b), 29 U.S.C. § 501(b), provides for

allotting “‘a reasonable part of the recovery” for attorney's

fees, the courts have uniformly followed this court’s Ratner

decision in awarding fees in cases of “substantial benefit” to

the union even though there is no money recovery. 118 U.S.

App.D.C. at 274-75, 325 F.2d at 696-97. See Note, The Fidu-

ciary Duty Under Section 501 of the LMRDA, 75 CoLvUmM. L.

REV. 1189, 1204 n.96 (1975) & cases cited therein.

*> Plaintiff Yablonski’s “Fair Election Case’ made express

reference to sections 401(c), (e), 501 of LMRDA. However,

the court made clear that section 501 was not “the primary

statutory foundation” of the suit, 151 U.S.App.D.C. at 257

n.5, 466 F.2d at 428 n.5, and section 40i(e) could not have

been the subject of a pre-election action, Calhoon v. Harvey,

3879 U.S. 134 (1964). See Note, Pre-Election Remedies Under

the Landrum-Griffin Act, supra note 4, 74 CoLuM. L. REV.

at 1115 & n.61.

*° As to this court’s Ratner decision, see note 34 supra.

25a

members by bringing suits against their union help vindi-

cate the statutory policy in favor of union democracy

which necessarily redounds to the benefit of the entire

membership. The statute is expressly aimed at protecting

union members from the corruption and electoral unre-

sponsiveness of their leadership. “Fee-shifting” is par-

ticularly appropriate because of the close match be-

tween the party assessed and the beneficiary of the liti-

gation. Indeed, the benefited class, its contours shaped

by the union’s self-description and its finances based on

per capita payments, fits the paradigm for “common bene-

fit” cases. “In [the Supreme! Court’s common-fund and

common-benefit decisions, the classes of beneficiaries were

small in number and easily identifiable. The benefits could

be traced with some accuracy, and there was reason for

confidence that the costs could indeed be shifted with

some exactitude to those benefiting.” Alyeska Pipeline

Co. v. Wilderness Society, 421 U.S. at 265 n. 39.

The issue here is whether the “common benefit” ra-

tionale may be applied to the case of union member inter-

vention in a suit brought by the Secretary to enforce elec-

toral rights and maintain the integrity of a union elec-

tion. The appropriateness of “fee shifting’ in the union

democracy context suggests an affirmative answer, unless

Congress can be said to have evidenced a purpose to bar

the award of such fees. “{E]ven where ‘fee-shifting’

would be appropriate as a matter of equity, Congress

has the power to circumscribe such relief.” Hall v. Cole,

412 US. at 9.

B. Issue of Statutory Preclusion

(1) Administrative Enforcement

At the outset, it is our view that the mere fact that

primary enforcement responsibility for Title IV rests with

the Secretary of Labor, rather than private litigants, does

26a

not establish congressional preclusion of “the traditional]

equitable power of federal courts to award such fees

whenever ‘overriding considerations indicate the need for

such a recovery.’” Hall v. Cole, 412 U.S. at 9. It is perti-

nent that the Secretary started the motor that launched

a section 401 suit, and this may have bearing on the

amount of fees recoverable.*” But it does not negate the

possibility of recognition of benefit from the contribution

of individual union members, as complainants and Trbo-

vich intervenors, to the success and direction of the liti-

gation journey. Their contribution may yield a substan-

tial, and properly compensable, benefit to the membership

exceeding that derived from the Secretary’s efforts.

Trbovich recognized a right of intervention limited to

the claims of illegality presented by the Secretary’s com-

plaint. The Court justified intervention on the ground

‘that “the union member may have a valid complaint

about the performance of ‘his lawyer,’” since the Secre-

tary’s obligation to advance the public interest may not

always dovetail with his other responsibility to represent

the complainant’s interest. 404 U.S. at 539. However,

neither the limitations on the intervenor’s role nor the

stated justification for intervention necessitate the con-

clusion as a matter of law that no substantial benefit can

ever be rendered to the union membership.*

37 See discussion in part IV infra.

%* Although to satisfy the requirement of Fed.R.Civ.P.

24(a) (2) the Court in Trbdovich hypothesized that the Sec-

retary may not adequately represent the complainant’s par-

tisan concerns, its primary focus was on the likelihood that

such intervention would “assist the Secretary” and the court

in vindicating the statutory mandate, see 404 U.S. at 536-37 &

n.8. As this court stated in Yablonski v. United Mine Work-

ers, 151 U.S.App.D.C. 253, 259-60, 466 F.2d 424, 430-31

(1972), cert. denied, 412 U.S. 918 (1973), cited with approval

in Hall v. Cole, 412 U.S. 1, 14 (1973), “[iJt is obvious in

virtually all litigation of this character, in the labor field or

27a

It is not difficult to conceive of examples of material

assistance to the Secretary and the court in the vindica-

tion of the interest—of the public and the union rank

and file—in union democracy.” At trial able counsel rep-

resenting the intervenor may unearth material and even

elusive evidence, or develop telling arguments in support

of the Secretary’s claims of illegality. As we note above,

the Trbovich Court envisioned that intervenors would

perform a role independent of the Secretary in helping

the court fashion a suitable remedial order, and perhaps

even assist the Secretary in supervising the conduct of

the rerun.“ And in this decision we accord to Trbovich

out, a plaintiff pursues his own interest as well as that of

others. The relevant question is whether or not the trouble

he takes results in the actual conferring of benefits on others

than himself.” See also Shapiro, Some Thoughts on I[nter-

vention Before Courts, Agencies, and Arbitrators, 81 Harv.

L. Rev. 721, 746 (1968): “But the very fact that the inter-

venor—from the vantage point of his own interest—sees the

case with a perspective and perhaps an intensity different

from that of the agency charged with the protection of the

public as a whole may indicate that he can in fact contribute

to the court’s total understanding.”

* Since this case involved a successful section 402 action

culminating in a supervised rerun election, we do not decide

whether attorney’s fees may be awarded where there has been

no adjudicated violation because the parties have negotiated a

consensual disposition. We note, however, that ultimate suc-

cess has not been required in other contexts. Mills v. Electric

Auto-Lite Co., 396 U.S. 375, 396 (1970); Yablonski v. United

Mine Workers, 151 U.S.App.D.C. 253, 260, 466 F.2d 424, 431

(1972), cert. denied, 412 U.S. 918 (1973).

“ Complainant participation at the remedial stage of the

Trbovich suit led the Secretary to depart from his traditional

policy of minimal supervision of court-ordered reruns in the

1972 restaging of the 1969 United Mine Workers election.

Compare the Secretary usual practice, discussed in Note,

Union Elections and the LMRDA, supra note 4, 81 YALE L.J.

at 519-27, with Hodgson v. United Mine Workers, 344 F.

Supp. 17, 35-37 (D.D.C. 1972).

28a

intervenors full party status to challenge the Secretary’s

certification. The partieular challenge here was unavail-

ing, but sound principle advises that error is more likely

to be exposed when intervenors are able to secure com-

petent counsel because of the prospect of recovering at-

torney’s fees.

Apart from the Trbovich intervention context, the priv-

ate efforts of union members may precipitate successful

Department of Labor intervention.“ A union member

seeking review under the Bachowski ruling of the Secre-

tary’s failure to bring suit may expose irrationality and

succeed in changing the Secretary’s mind and course of

events, culminating in a successful section 402 litigation.

Perhaps even more important is skillful lawyering at the

initial stages of the enforcement scheme, e.g., assisting

union members in identifying infractions in elections,

formulating a bill of particulars. supervising the exhaus-

tion of internal remedies, and drafting a complaint for

presentation to the Secretary. Such efforts benefit the

membership of the union by ensuring that all the defects

in the election are properly preserved for government in-

“ Although the rights of Trbovich intervenors are a deriva-

tive of the Secretary’s authority, we do not agree that this

bars an award for fees incurred prior to the Secretary’s filing

of a section 402 action. Whether or not the Government may

intervene under Title IV prior to this point, see 29 U.S.C.

§521(a) (pre-complaint investigation), the court has power

to grant complete relief according to the necessities of the

case.

We also reject appellee Local 639’s claim, based on 28 U.S.C.

§ 2412, that since the Secretary cannot recover attorney’s fees

intervenors cannot stand in any better position. This court

has previously held that this statute does not bar a “common

benefit” award assessable against private parties where there

is no retroactive impact on the public treasury, National

Treasury Employees v. Nixon, 172 U.S.App.D.C. 217, 219-20,

521 F.2d 317, 319-20 (1975). We see no reason to create a

special rule for Trbovich intervenors.

29a

tervention. Indeed, they are an essential predicate to gov-

ernment intervention. The Secretary cannot seek to set

aside a union election on grounds which were not raised

in “some discernible fashion” by the complainant during

exhaustion, Hodgson v. Loca! 6799, Steel Workers, 403

U.S. 333, 340-41 (1971), or which “the union [did not

have] a fair opportunity to consider and redress in con-

nection with a member’s initial complaint,” Wirtz v.

Local 125, Laborers, 389 U.S. 477, 484 (1968).

That private interests may aid in the vindication of

statutory policy notwithstanding the stewardship of an ad-

ministrative agency is hardly a novel concept. It finds

resonance in the cases recognizing standing in competitors

and rights of intervention in private groups to act as

“private attorneys general” in agency proceedings and

court review of agency action.** In numerous statutes

Congress has authorized attorney’s fees for private liti-

gants while providing an alternative of government en-

forcement. And the courts have permitted recovery of

“2 Of course, union members are not held to a standard of

legal precision in framing their internal protests, and the

union carries a “heavy burden” to show it was not put on

notice, Hodgson v. Local 6799, Steel Workers, 403 U.S. 333,

340-41 (1971). But the Hodgson case itself illustrates the

perils of uncounseled exhaustion of internal union remedies,

for the union member’s failure to object to a meeting attend-

ance rule barred the Secretary from challenging the rule in

a section 402 action.

8 See, e.g., Associated Industries v. Ickes, 134 F.2d 694,

704 (2d Cir.), vacated as moot, 320 U.S. 707 (1943) ; Office of

Church of Christ v. FCC, 123 U.S.App.D.C. 328, 359 F.2d

994 (1966). See generally Gellhorn, Public Participation in

Administrative Proceedings, 81 YALE L.J. 359 (1972) ; Note,

Federal Agency Assistance to Impecunions Intervenors, 88

Harv. L. REV. 1815 (1975).

* See statutes cited in McDonald v. Oliver, 525 F.2d 1217,

1228 (Sth Cir. 1976).

30a

attorney’s fees under the “common benefit” rationale

even though government action was available to enforce

the statutory policy. This was the case in Mills v. Electric

Auto-Lite Co., 396 U.S. 375 (1970), where the Securities

and Exchange Commission could have enforced the provi-

sion in question,** and in the recent Fifth Circuit deci-

sion in McDonald v. Oliver, 525 F.2d 1217, 1228 (5th

Cir. 1976), where a contemporaneous suit by the Secre-

tary of Labor under Title III had been consolidated with

the private action.

The exclusivity of the administrative remedy for Title

IV, and the underlying congressional intent to shield

unions from private suits and undue governmental inter-

vention, means that Mills and the LMRDA precedents are

not on all fours, but the distinction does not call for a dif-

ferent view of the court’s power to make a “common

benefit” award. As the Secretary’s determination to take

no position on this issue suggests, allowance of attorney’s

fees for union member efforts in aid of the Secretary’s

action does not undercut the exclusivity of the administra-

tive remedy. “Congress, although committed to minimal

intervention, was obviously equally committed to making

that intervention, once warranted, effective in carrying

out the basic aim of Title IV.” Wirtz v. Local 153, Glass

Bottle Blowers, 389 U.S. 463, 473 (1968).

**The Supreme Court considers private enforcement of.

the proxy rules to be “a necessary supplement to Commission

action” because of limited Commission enforcement resources.

J.I. Case Co. v. Borak, 377 U.S. 426, 482 (1964); Mills v.

Electric Auto-Lite Co., 396 U.S. 375, 382 (1970). While “the

limited resources of the Secretary of Labor,” Hodgson v. Local

6799, Steel Workers, 403 U.S. 333, 339 (1971), are not of a

dimension to warrant implication of a private right of action,

the assistance of intervenor’s counsel may nonetheless provide

a welcome supplement to the efforts of a beleagured enforce-

ment staff.

3la.

(2) Comprehensiveness of Remedial Scheme

Appellee Local 639 contends that Title IV embodies an

“explicit, comprehensive and exclusive remedial scheme

such as was found in Fleischmann Distilling Corp. v.

Maier Brewing Co., 386 U.S. 714 (1967), to bar recov-

ery of attorney’s fees in a trademark infringement action

under the Lanham Act. We reject the analogy to Fleisch-

mann.

Although Fleischmann has been repeatedly cited as an

example of statutory preclusion of attorney’s fees, the

case itself did not present an occasion for invocation of

the “common benefit” rationale,“ and essentially antici-

pates Alyeska’s affirmance of the “American Rule” in

cases falling outside the metes and bounds of the tradi-

tional equitable exceptions. Insofar as Fleischmann stands

for a broad principle against judicial implication of rem-

edies in the context of statutory causes of action, see 386

U.S. at 719-20, it is of doubtful viability in light of sub-

sequent decisions.*’ Whereas the Court in Fleischmann was

willing to find preclusion in Congress’ selective provision

of attorney’s fees in other statutes and unsuccessful efforts

to enact a similar measure into the Lanham Act, td. at

720-21, the Court in Mills and Hall employed a presump-

tion against preclusion, permitting “common benefit’

awards in the context of statutory causes of action not-

withstanding provision for attorney’s fees in other sec-

tions of the same statute. Wills, 396 U.S. at 390-91; Hall,

412 USS. at 10-11.

* See Fleischmann, 386 U.S. at 720 (“But none of the con-

siderations which supported the exception recognized in

Sprague [v. Ticonice Nat'l Bank, 307 U.S. 161 (1939)] are

present here”) ; Yablonski v. United Mine Workers, 151 U.S.

App.D.C. 253, 258, 466 F.2d 424, 429 (1972), cert. denied, 412

U.S. 918 (1973). ”

e omment, The Allocation of Attorney’s Fees er

wae n } eer heto-Lite Co., 38 U.CuHI.L.REV. 316, 321-25

(1971).

32a

What remains of Fleischmann after Mills and Hall is

the rather strict test enunciated in Hall, that preclusion

will not be found unless the remedies available have been

“ ‘meticulously detailed,’” 412 U.S. at 9, or there has

been “‘a definitive and absolute setting of the Congres-

sional face against the giving of such incidental relief by

the courts where compatible with sound and established

equitable principles.’ id. at 12. Fleischmann was such a

case because the remedial provision of the Lanham Act

specifically “provided not only for injunctive relief, but

also for compensatory recovery measured by the profits

that accrued to the defendant by virtue of his infringe-

ment, the costs of the action, and damages which may be

trebled in appropriate circumstances.” Fleischmann, 386

U.S. at 719. This precise specification of remedies thus

encompassed “an authority which could, as a practical

matter, be used to mitigate the burden of counsel fees,”

Yablonski v. United Mine Workers, supra, 151 U.S.App.

D.C. at 258, 466 F.2d at 429, and presented a compelling

case against further judicial relief.

To bring this case within Fleischmann, appellee Local

639 cites to the specific rejection by Congress of the bill

that passed the House, H.R. 8342. which provided for

union member suit and authorized the court to grant such

relief ‘as may be appropriate.” inciuding attorney’s fees.*

Appellee argues that this legislative history, coupled with

the specification of remedies in section 402(b), evidences

a congressional purpose to curtail the court’s inherent

equitable jurisdiction.

We have taken into consideration that the enforcement

scheme for Title IV is set out with greater detail than

**H.R. 8342, 86th Cong., lst Sess. § 402(a) (1959). See

also S. 748, 86th Cong., lst Sess. §§ 302(d), 4v5-06 (1959),

the Administration’s bill, introduced by Senator Goldwater,

which provided for both administrative and private enforce-

ment.

33a

the more flexible provisions involved in previous LMRDA

“common benefit” decisions,“ and that Congress rejected

a private enforcement scheme which would have provided

for attorney’s fees. But our inquiry cannot rest with

this comparison.” The Trbovich Court’s review of the leg-

islative history makes clear that the debate in the Con-

gress was over the respective merits of union member

suits as opposed to enforcement actions by the Secretary

of Labor.-404 U.S. at 532-36. The Conference Committee

and the House ultimately adopted the public enforcement

scheme of the Kennedy-Ervin bill, S. 1555, presumably

because they agreed with the Senate that the Secretary

should screen frivolous complaints and consolidate meri-

torious ones.*' This legislative history, as Trbovich holds,

“Compare 29 U.S.C. § 482(b), (c), with id. §§ 412 (Title

I), 440 (Title II), 464(a) (Title III), 501(b) (Title V). The

one exception to this pattern is section 401(c), id. § 481(c),

which simply establishes a union duty, enforceable by private

suit, to provide equal treatment in the distribution of cam-

paign literature and access to membership lists.

cases, repeating the advice of Professor Archibald Cox who

was a principal consultant to the draftsmen, “ ‘because much

of the bill was written on the floor of the Senate or House of

Representatives and because many sections contain calculated

ambiguities or political compromises. . . , the courts would

be well advised to seek out the underlying rationale without

placing great emphasis on close construction of the words.’ ”

Wirtz v. Local 153, Glass Bottle Blowers, 389 U.S. 463, 468 &

n.6 (1968); Hall v. Cole, 412 U.S. 1, 11 n.17 (1972), quoting

Cox, Internal Affairs of Labor Unions Under the Labor Re-

form Act of 1959, 58 MicH.L.REV. 819, 852 (1960).

The Conference Report simply states that the Senate

bill’s administrative enforcement scheme prevailed over the

House bill’s private suit provision, without tendering any

explanation for the outcome. H.R. Rep. No. 1147, 86th Cong.,

lst Sess. 35 (1959).

34a

“can in no sense be read as a rejection of all forms of

private participation in enforcement litigation,” because

Congress uever focused on “the possibility that union

members might assist the Secretary rather than displace

him.” Jd. at 536. Similarly, while Congress adopted a

particular mode of enforcement, it failed to address with

any detail the scope of relief, or what the court’s role

would be at the remedial stage.*

Far from the “meticulously detailed” remedial provi-

sion involved in Fleischmann, the courts have had to fill

out the details of the Title IV enforcement scheme. The

Trbovich decision permitting union member intervention

is a case in point.** No provision fer settlements is made

in the statute. and indeed the mandatory language and

60-day limitation period of section 402 suggest a design

to preclude disposition short of suit. Nonetheless, the Su-

preme Court has stressed the Secretary’s ameliorative

function as an important feature of the statutory

scheme, and the courts have read into the statute a

“waiver” procedure to afford time to negotiate settle

* See Beaird, Union Officer Election Provisions of the

Labor-Management Reporting and Disclosure Act of 1959,

51 Va. L. REv. 1306, 1839 (1965). Contra, Note, The Elec-

tion Labyrinth: An Inquiry into Title IV of the LMRDA, 43

N.Y.U. L. REV. 336, 358 (1968).

The Senate Committee report offers the only guidance, and

little at that. “After the election the Secretary would certify

the names of the persons elected and enter an appropriate

decree declaring them to be the officers of the labor organiza-

tion.” S. REP. No. 187, 86th Cong., lst Sess. 21 (1959) (em-

phasis supplied.)

** See also Wirtz v. Local 153, Glass Bottle Blowers, 389

U.S. 463 (1968) (supervening unsupervised union election

does not render moot section 402 action).

** See Calhoon v. Harvey, 379 U.S. 134, 140-41 (1964).

35a

ments * and have reviewed the resulting dispositions for

conformance with the Act. At the remedial stage, the

courts have passed judgment on the timing, scope and pro-

cedures of the supervised election, performing the over-

sight role envisioned by the Court in Trbovich.“ And

during the course of the supervised election, the courts by

express invocation of the “historic power of equity” have

issued a broad r°~=~ of ancillary relief to ensure the in-

tegrity of the contest.” Similarly, in reviewing the Secre-

*8 See Hodgson v. Machinists Lodge 851, 454 F.2d 545 (7th

Cir. 1971) ; Hodgson v. International Pressmen, 440 F.2d 1113

(6th Cir.), cert. denied, 404 U.S. 828 (1971). The courts have

also implied a “waiver” where urion conduct impedes the

Secretary’s investigation. See, e.g, Wirtz v. Carpenters Local

1622, 285 F. Supp. 455 (N.D.Cal. 1968).

¢ See, e.g., Brennan v. Local 551, United Auto Workers, 486

F.2d 6 (7th Cir. 1973) (Secretary may delay date for super-

vised election) ; Hodgson v. Local 1299, United Steel Workers,

453 F.2d 565 (6th Cir. 1971) (Secretary may supervise entire

rerun election, if necessary, even though original violation

pertained only to changing of ballots between initial vote and

recount) ; Hodgson v. Chain Service Rest. L. & S.F. Emp. U.

Local 11, 355 F. Supp. 180 (S.D.N.Y. 1973) (Secretary has

authority to refuse to certify a candidate elected in supervised

election but subsequently found to be ineligible because of

Taft-Hartley Act conviction).

*t See, e.g., Hodgson v. Int’! Union of Electrical Workers

Local 485, 503 F.2d 219, 223-24 (2d Cir. 1974) (court’s “in-

herent equitable power” to require incumbent business agents

to resign 30 days prior to supervised election) ; Brennan v.

Sindicato Empleados de Equipo Pesado, 370 F. Supp. 872

(D.P.R. 1974) (order declaring supervised election null and

void and enjoining incumbents from continuing acts of im-

proper interference with union member rights and the Secre-

tary’s supervision) ; Wirtz v. Independent Workers Union of

Fla., 272 F. Supp. 31, 33-34 (M.D. Fla. 1967) (court “sits

as a court of equity” and can enjoin use of union funds to pro-

mote candidacy in court-ordered election).

36a

tary’s certification of the rerun results, the courts have

issued injunctive relief to cure recurring illegality.**

Thus, notwithstanding the absence of a broad relief

provision in section 402, the court in a Title IV action

faces the same task as if it were adjudicating a union

member suit under the other titles—to grant relief ac-

cording to the necessities of the case, i.e., to fashion “ap-

propriate” relief. The efforts of union member inter-

venors may be of considerable assistance to the court and

the Secretary, warranting assessment against the party

ultimately benefitted—the union membership. There was

no need for judicially created compensation of private

efforts in aid of the statutory objective in Fleischmann.

Here we do not have a statute which “in so many words,

or by a necessary and inescapable inference, restricts the

court’s jurisdiction in equity,” * preventing it from acting

“cognizant of the historic power of equity to provide com-

IV. ON REMAND

We affirm the District Court’s judgment approving the

Secretary’s certification of the results of the December 16.

1973 supervised election, but reverse and remand the case

on the attorney’s fees issue. Whether an award is war-

ranted in the case of appellants’ counsel, and if so in

what amount, is a matter for initial determination by

the District Court in the sound exercise of its discretion.

The standards for determining the reasonable value of

a lawyer’s services have been developed in previous deci-

* See, e.g., Brennan v. Sindicato Empleados de Equipo

Pesado, 370 F. Supp. 872 (D.P.R. 1974).

** Porter v. Warner Holding Co., 328 U.S. 395, 398 (1946).

*° Mitchell v. Robert DeMario Jewelry, Inc., 361 U.S. 288,

291-92 (1960).

37a

sions of this court and need not be repeated here.” On

the remand, the District Court will apply those principles

in the context of this opinion authorizing a “common

benefit” award when the Secretary has instituted a suc-

cessful action under Title IV. Since the action is one to

contest the initial January, 1972 election, the starting

point must be services rendered after that election. Those

services that were rendered after the action was filed will

be matters the court can readily take into account. There

may also have been services rendered prior to the filing

of the action that were of benefit to the Secretary in his

presentation of the cause; these are matters on which the

Secretary’s views would be material. The benefits con-

ferred on the membership include those resulting from

post-election services rendered during the exhaustion of

internal union remedies, for these may have preserved

grounds of protest that permitted and aided the ultimate

intervention by the Secretary, to the benefit of the mem-

bership, and may even more immediately have inured to

the benefit of membership through significant corrective

action taken by the union.” On these matters, the discre-

tion of the District Court, aided by the views of the

Secretary, will permit a sound appraisal of benefits, and

it is for that objective that the case is remanded for fur-

ther proceedings not inconsistent with this opinion.

So ordered.

* See National Treasury Employees Union v. Nixon, 172

U.S.App.D.C. 217, 222-23, 521 F.2d 317, 322-23 (1975) ; Pete

vy. UMWAWERF, 171 U.S.App.D.C. 1, 16, 517 F.2d 1275, 1290

(1975).

* As appellants’ brief notes (p. 38), affidavit of counsel did

not itemize services rendered in as he Pa

a . If appellants enlarge their motion to include a ciaim

ge ot men ng this also would be a matter for initial

determination by the District Court.

38a

APPENDIX

TITLE IV—ELECTIONS

Terms of Office; Election Procedures

(29 U.S.C. 481)

SEc. 401. (a) Every national or international labor or-

ganization, except a federation of national or interna-

tiona] labor organizations, shall elect its officers not less

often than once every five years either by secret ballot

among the members in good standing or at a convention

of delegates chosen by secret ballot.

(b) Every local labor organization shall elect its offi-

cers not less often than once every three years by secret

ballot among the members in good standing.

tion, except a federation of national or international

labor organizations, and every local labor organization,

and its officers, shal] be under a duty, enforceable at the

suit of any bona fide candidate for office in such labor

organization in the district court of the United States in

which such labor organization mairtains its principal of-

fice, to comply with all reasonable requests of any candi-

date to distribute by mail or otherwise at the candidate’s

expense campaign literature in aid of such person’s candi-

dacy to all members in good standing of such labor or-

ganization and to refrain from discrimination in favor of

or against any candidate with respect to the use of lists

of members, and whenever such labor organizations or its

officers authorize the distribution by mail or otherwise to

members of campaign literature on behalf of any candi-

date or of the labor organization itself with reference to

such election, similar distribution at the request of any

other bona fide candidate shall be made by such labor

organization and its officers, with equal treatment as to

the expense of such distributon. Every bona fide candidate

39a

shall have the right, once within 30 days prior to an

election of a labor organization in which he is a candidate,

to inspect a list containing the names and last known

addresses of all members of the labor organization who

are subject to a collective bargaining agreement requir-

ing membership therein as a condition of employment,

which list shall be maintained and kept at the principal

office of such labor organization by a designated official

thereof. Adequate safeguards to insure a fair election

shall be provided, including the right of any candidate to

have an observer at the polls and at the counting of the

ballots.

(d) Officers of intermediate bodies, such as general

committees, system boards, joint boards, or joint councils,

shall be elected not less often than once every four years

by secret ballot among the members in good standing or

by labor organization officers representative of such mem-

bers who have been elected by secret ballot.

(e) In any election required by this section which is to

be held by secret ballot a reasonable opportunity shall be

given for the nomination of candidates and every member

in good standing shall be eligible to be a candidate and to

hold office (subject to section 504 and to reasonable quali-

fications uniformly imposed) and shail have the right to

vote for or otherwise support the candidate or candidates

of his choice, without being subject to penalty, discipline,

or improper interference or reprisal of any kind by such

organization or any member thereof. Not less than fifteen

days prior to the election notice thereof shall be mailed

to each member at his last known home address. Each

member in good standing shall be entitled to one vote.

No member whose dues have been withheld by his em-

ployer for payment to such organization pursuant to his

voluntary authorization provided for in a collective bar-

gaining agreement shall be declared ineligible to vote or

be a candidate for office in such organization by reason of

alleged delay or default in the payment of dues. The votes

40a

cast by members of each local labor organization shall be

counted, and the results published, separately. The elec-

tion officials designated in the constitution and bylaws

or the secretary, if no other official is designated, shall

preserve for one year the ballots and all other records

pertaining to the election. The election shall be conducted

in accordance with the constitution and bylaws of such

organization insofar as they are not inconsistent with

the provisions of this title.

(f) When officers are chosen by a convention of dele-

gates elected by secret ballot, the convention shall be con-

ducted in accordance with the constitution and bylaws

of the labor organization insofar as they are not incon-

sistent with the provisions of this title. The officials des-

ignated in the constitution and bylaws or the secretary,

if no other is designated, shal] preserve for one year the

credentials of the delegates and all minutes and other

records of the convention pertaining to the election of

officers.

(g) No moneys received by any labor organization by

way of dues, assessment, or similar levy, and no moneys

of an employer shall be contributed or applied to promote

the candidacy of any person in an election subject to the

provisions of this title. Such moneys of a labor organiza-

tion may be utilized for notices, factual statements of

issues not involving candidates, and other expenses neces-

sary for the holding of an election.

(h) If the Secretary, upon application of any member

of a local labor organization, finds after hearing in ac-

cordance with the Administrative Procedure Act that the

constitution and bylaws of such labor organization do not

provide an adequate procedure for the removal of an

elected officer guilty of serious misconduct, such officer

may be removed, for cause shown and after notice and

hearing, by the members in good standing voting in a

secret ballot conducted by the officers of such labor or-

tla

ganization in accordance with its constitution and bylaws

insofar as they are not inconsistent with the provisions

of this title.

(i) The Secretary shall promulgate rules and regula-

tions prescribing minimum standards and procedures for

determining the adequacy of the removal procedures to

which reference is made in subsection (h).

Enforcement

(29 U.S.C. 482)

Sec. 402. (a) A member of a labor organization—

(1) who has exhausted the remedies available un-

der the constitution and bylaws of such organization

and of any parent body, or

(2) who has invoked such available remedies

without obtaining a final decision within three cal-

endar months after their invocation,

may file a complaint with the Secretary within one cal-

endar month thereafter alleging the violation of any pro-

vision of section 401 (including violation of the constitu-

tion and bylaws of the labor organization pertaining to

the election and removal of officers). The challenged elec-

tion shall be presumed valid pending a final decision

thereon (as hereinafter provided) and in the interim the

affairs of the organization shall be conducted by the offi-

cers elected or in such other manner as its constitution

and bylaws may provide.

(b) The Secretary shall investigate such complaint

and, if he finds probable cause to believe that a violation

of this title 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 as an

entity in the district court of the United States in which

such labor organization maintains its principal office to

42a

set aside the invalid election, if any, and to direct the con-

duct of an election or hearing and vote upon the removal

of officers under the supervision of the Secretary and in

accordance with the provisions of this title and such rules

and regulations as the Secretary may prescribe. The court

shall have power to take such action as it deems proper

to preserve the assets of the labor organization,

trial upon the merits, the court finds—

(1) that an election has not been held within the

time prescribed by section 401, or

(2) that the violation of section 401 may have af-

fected the outcome of an election,

the court shal] declare the election, if any, to be void and

direct the conduct of a new election under supervision of

the Secretary and, so far as lawful and practicable, in

conformity with the constitution and bylaws of the labor

organization. The Secretary shall promptly certify to the

court the names of the persons elected, and the court shall

thereupon enter a decree declaring such persons to be the

officers of the labor organization. If the proceeding is for

the removal of officers pursuant to subsection (h) of sec-

tion 401, the Secretary shall certify the results of the vote

and the court shall enter a decree declaring whether such

persons have been removed as officers of the labor organi-

zation.

(d) An order directing an election, dismissing a com-

plaint, or designating elected officers of a labor organiza-

tion shall be appealable in the same manner as the final

judgment in a civil action, but an order directing an elec-

tion shall not be stayed pending appeal.

Application of Other Laws

(29 U.S.C. 483)

Sec. 403. No labor organization shall be required by

law to conduct elections of officers with greater frequency

43a

or in a different form or manner than is required by its

own constitution or bylaws, except as otherwise provided

by this title. Existing rights and remedies to enforce the

constitution and bylaws of a labor organization with re-

spect to elections prior to the conduct thereof shall not

be affected by the provisions of this title. The remedy

provided by this title for challenging an election already

conducted shall be exclusive.

Effective Date

(29 U.S.C. 484)

Sec. 404. The provisions of this title shall become ap-

plicable—

(1) ninety days after the date of enactment of this

Act in the case of a labor organization whose consti-

tution and bylaws can lawfully be modified or

amended by action of its constitutional officers or gov-

erning body, or

(2) where such modification can only be made by

a constitutional convention of the labor organization,

not later than the next constitutional convention of

such labor organization after the date of enactment

of this Act, or one year after such date, whichever is

sooner. If no such convention is held within such one-

year period, the executive board or similar govern-

ing body empowered to act for such labor organiza-

tion between conventions is empowered to make such

interim constitutional changes as are necessary to

carry out the provisions of this title.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.