# Opposition — Sadlowski v. Marshall > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_1935%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition - **Published:** January 1, 1980 - **Citation:** 447 U.S. 905 ## Text 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). jon iy My gees - Site 2am 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_1935%3A2. Public record. Not legal advice.