Opposition — Sadlowski v. Marshall

No. 79-1540

Iu the Supreme Court of the United States

OCTOBER TERM, 1979

EDWARD SADLOWSKI, ET AL., PETITIONERS

v.

Ray MARSHALL, SECRETARY OF LABOR, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE DISTRICT OF COLUMBIA CIRCUIT

! BRIEF FOR THE SECRETARY OF LABOR

IN OPPOSITION

WADE H. McCRrEE, Jr.

Solicitor General

Department of Justice

Washington, D.C. 20530

CARIN ANN CLAUSS

Solicitor of Labor

BEATE BLOCH

Associate Solicitor

Lots G. WILLIAMS

HELENE BOETTICHER

NorrIs R. SAUNDERS

JOSEPH M. WOODWARD

Attorneys

Department of Labor

Washington, D.C. 20210

= Ne eS

Iu the Supreme Court of the United States

OCTOBER TERM, 1979

No. 79-1540

EDWARD SADLOWSKI, ET AL., PETITIONERS

Vv.

RAY MARSHALL, SECRETARY OF LABOR, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR THE SECRETARY OF LABOR

IN OPPOSITION

OPINIONS BELOW

The order of the court of appeals granting the

Secretary’s motion for summary affirmance (Pet.

App. 1a) is unreported. The opinion of the district

court (Pet. App. 4a-17a) is reported at 464 F. Supp.

858.

JURISDICTION

The judgment of the court of appeals was entered

on November 30, 1979, and a petition for rehearing

(1)

2

was denied on January 24, 1980 (Pet. App. 2a).

The petition for a writ of certiorari was filed on

April 2, 1980. The jurisdiction of this Court is in-

voked under 28 U.S.C. 1254(1).

QUESTION PRESENTED

Whether the courts below erred in concluding that

the Secretary’s statement of reasons for declining to

file suit to overturn a union election demonstrated

that he had fully investigated petitioners’ allegations

of misconduct and that his determination was not

arbitrary, capricious or an abuse of discretion.

STATEMENT

Petitioners unsuccessfully competed for interna-

tional level union offices in the February 1977 United

Steelworkers of America election. After exhausting

internal union remedies, they complained of election

misconduct to the Secretary of Labor (App. 64-144),’

who has exclusive authority to seek judicial redress

in such cases under Title ITV of the Labor-Manage-

ment Reporting and Disclosure Act of 1959, 29

U.S.C. 481 et seq.

Based on petitioners’ complaint, the Secretary initi-

ated a massive investigation of the Steelworkers’

election. Two hundred and fifty investigators were

assigned to the case and 5422 witnesses were inter-

viewed. Although the complaint alleged irregularities

1“App.” refers to the joint appendix that was filed in the

court of appeals.

3

in only 301 United States locals, the Secretary se-

lected 411 additional locals for investigation.* Peti-

tioners also challenged some Canadian results, but the

Secretary obviously could not conduct an investiga-

tion in Canada. Consequently, the Secretary secured

the assistance of the Government of Canada, which

convened an industrial inquiry board to investigate

those allegations.

Upon completion of the investigation, which in-

quired into all the issues raised in petitioners’ com-

plaint, the Secretary declined to file suit and issued

an 83-page Statement of Reasons supporting his

decision (App. 145-233). The Statement of Reasons

set forth the Secretary’s investigative findings with

respect to each of petitioners’ allegations, in a point-

by-point format, and analyzed all violations to deter-

mine whether—and to what extent—they “may have

affected the outcome of [the] election” (29 U.S.C.

482(c)). A tabulation of all possibly affected votes

2 Prior to the election, petitioners and the Union had both

requested that the Department of Labor undertake full and

complete supervision of the election. The Department declined

to do so because, except in the case of re-elections necessitated

by past election misconduct, the Department has no authority

to provide such assistance. Section 402(c) of the Act, 29

U.S.C. 482(c). However, “[t]he Department did agree to pro-

vide unprecedented technical assistance” (App. 147), which

included the presence of compliance officers on election day

and the assistance of Department officials in tabulating elec-

tion returns. Consequently, Department personnel had sub-

stantial first-hand information which assisted them in pin-

pointing additional locals that warranted investigation. The

investigation also focused on locals that either reported lop-

sided returns or failed to report returns (Pet. App. 8a).

4

demonstrated that the violations could not have

changed the outcome of the election in the United

States. The Statement also noted that the Canadian

investigation, over which the Secretary had no con-

trol, had not uncovered any evidence affecting the

validity of his conclusions (App. 145).° The Sec-

retary concluded that there had been no widespread

fraud or irregularities and that, “ ‘on the whole, the

election was conducted in accordance with the law

and with the Union’s constitution’ ” (Pet. App. 9a).

On February 14, 1978, petitioners brought this

action in the United States District Court for the

District of Columbia, complaining that the Secretary

had failed to conduct a proper investigation, that he

had breached his statutory obligation to act as their

“lawyer,” and that his Statement of Reasons was

arbitrary and capricious (App. 1-63). The Union

intervened as a defendant. The district court granted

defendants’ motions for summary judgment, finding

that the Secretary’s Statement “demonstrates that

8’ The Canadian investigation was headed by Roland Trem-

blay, a former provincial judge, who is also the president of

both the Economic Arbitrators of Canada and the Quebec

Arbitrators Conference (Pet. App. 8a). The Canadian report

(App. 268-294), which petitioners received in advance of the

Secretary’s Statement of Reasons (App. 145), concluded that

“Tt]he reasonable explanations put forth by trustworthy wit-

nesses have satisfied the Board as to the irregularities present

in the documents, and do not permit one to conclude that there

was any fraud, corruption, malfeasance, or even evil intent in

the conduct of the constitutional election of the United Steel-

workers of America, which took place in Canada on 8 Febru-

ary 1977” (App. 294).

————r"

5

each of [petitioners’] allegations was carefully inves-

tigated as were other possible violations not raised

by [petitioners]” and that “[t]he investigative find-

ings were considered and weighed in reaching the

conclusion that the violations that had occurred could

not have affected the election’s outcome” (Pet. App.

13a). The court rejected petitioners’ contention that

the Secretary had failed to act as their “lawyer” and

held that the Secretary had not abused his discretion

by declining to file suit (Pet. App. 16a-17a). The

court of appeals summarily affirmed (Pet. App. la).

ARGUMENT

1. In Dunlop v. Bachowski, 421 U.S. 560, 572-573

(1975), this Court held that the Secretary must give

reasons for declining to file suit under Section 402(b)

of the Act, 29 U.S.C. 482(b), but that judicial re-

view must “be confined to examination of the ‘rea-

sons’ statement, and the determination whether the

statement, without more, evinces that the Secretary’s

decision is so irrational as to [be] * * * arbitrary and

capricious.” * In particular, the Court stated that

“review may not extend to * * * trial of a complain-

ing member’s challenges to the factual bases for the

Secretary’s conclusion either that no violations oc-

curred or that they did not affect the outcome of the

election” (421 U.S. at 572-578).

4 This Court noted in Dunlop v. Bachowski, supra, 421 U.S.

at 574, that “review beyond the confines of the reasons state-

ment” might be warranted in certain unusual circumstances,

but the district court correctly found that no such circum-

stances were present here (Pet. App. 12a).

6

Although petitioners seek review on the ground

(Pet. 16) that the Secretary’s Statement of Reasons

was arbitrary and capricious on its face, the thrust

of their argument is that the Secretary erred by not

enlarging the scope of his investigation and by not

attributing greater weight to those violations that

he discovered (Pet. 17-20).° Contrary to this Court’s

holding in Bachowski, petitioners seek to challenge

the factual basis for the Secretary’s decision and to

have the courts substitute their judgment for that

of the Secretary, despite the statute’s reliance “upon

the special knowledge and discretion of the Secre-

tary for the determination of both the probable viola-

tion and the probable effect” (Dunlop v. Bachowski,

supra, 421 U.S. at 571). In any event, the Secre-

tary’s careful investigation, which went well beyond

petitioners’ allegations, speaks for itself.°

5 In effect, petitioners contend that they are entitled to the

expanded scope of review that this Court rejected in Bachow-

ski. Petitioners correctly note that the decision below (Pet.

App. 14a-15a) departs from the district court’s analysis in

Bachowski Vv. Brennan, 418 F. Supp. 147 (W.D. Pa.), appeal

dismissed, 545 F.2d 363 (3d Cir. 1976), with respect to the

appropriate methodology for assessing the effect of ballot

secrecy violations. The contrary decision of one district court

does not create a conflict that warrants this Court’s review.

® Moreover, the Secretary does not have the burden of

proving to a reviewing court that the violations did not affect

the election results. Petitioners’ reliance (Pet. 20-21) on Wirtz

v. Hotel, Motel & Club Employees Union, 391 U.S. 492 (1968),

is misplaced. In Wirtz, this Court held only that once the

Secretary has filed suit and proved the violations, the wnion

must carry the burden of showing that the violations did not

affect the result (id. at 506-509). Significantly different consid-

7

On its face, the Secretary’s Statement of Reasons

shows that he thoroughly investigated and considered

all of petitioners’ allegations before reaching his de-

cision (Pet. App. 18a). The district court correctly

held that the Secretary had not abused his discretion

in declining to file suit (Pet. App. 17a), and the court

of appeals correctly affirmed that ruling (Pet. App.

la). This essentially factual question does not war-

rant further review.

2. Petitioners’ contention (Pet. 14-16) that the

Secretary breached his duty to act as their “lawyer”

—-by failing to keep them fully apprised of the prog-

ress of his investigation—is likewise without merit.

This Court has repeatedly emphasized that the Sec-

retary has broad discretion in this area (Wirtz v.

Local 125, Laborers’ Union, 389 U.S. 477, 482-483

(1968); Calhoon v. Harvey, 379 U.S. 134, 140

(1964)), and it is clear that Congress did not in-

tend to have the Secretary’s discretion encumbered

by requiring him to act as a partisan during the in-

vestigatory stage.* The Secretary must exercise in-

erations are relevant to a court’s review of the Secretary’s

exercise of discretion in determining whether to sue. See

Wirtz v. Bottle Blowers Ass’n, 389 U.S. 468, 472 (1968).

7 Petitioners’ criticism (Pet. 11-12) of the Canadian investi-

gation is inapposite. The Secretary could not control the

conduct of that investigation, and he received no information

that affected the validity of the conclusions that his own inves-

tigation had reached (App. 145).

8 Indeed, the Secretary’s duty to be impartial during the

investigatory stage is clear from the fact that union mem-

bers may intervene once a lawsuit is filed, but only with

8

dependent judgment during the investigation and, as

the district court correctly held, “[o]nly after the

Secretary has [found probable cause and] instituted

suit does he assume a partisan role and become an

advocate for the complaining union member” (Pet.

App. 16a).

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CONCLUSION

The petition for a writ of certiorari should be

denied.

Respectfully submitted.

WADE H. McCREE, JR.

Solicitor General

CARIN ANN CLAUSS

Solicitor of Labor

BEATE BLOCH

Associate Solicitor

Lois G. WILLIAMS

HELENE BOETTICHER

Norris R. SAUNDERS

JOSEPH M. WOODWARD

Attorneys

Department of Labor

May 1980

respect to those claims that the Secretary has judged to

be meritorious, because “Congress intended to insulate the

union from any complaint that did not appear meritorious to

* * * the Secretary” (Trbovich v. United Mine Workers, 404

U.S. 528, 587 (1972)).

oo. 8. Coveenment printing orrice; 1980 320294 314