Petition for Writ of Certiorari — Sailors' Union of the Pacific, Seafarers International Union v. Secretary of Labor

84-1 003. ())

No

be - Supreme Court. US. |

F#--)b

In the Suprem¢ Céut™

ALEXANDER v STEVAS.

CLERK

OF THE

United States

caieeenia diene

OcTOBER TERM, 1984

THE SAILORS’ UNION OF THE PACIFIC,

SEAFARERS INTERNATIONAL UNION OF

NortH AMEriIcA, AFL-CIO,

Petitioners,

VS.

RAYMOND J. DONOVAN, PETER TURNER,

Respondents.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JOHN F. HENNING, JR.

HENNING, WALSH & RITCHIE

100 Bush Street, Suite 440

San Franeiseo, CA 94104

(415) 981-4400

Attorneys for Petitioners

Sailors’ Union of the

Pacific, Seafarers

International Union

of North America,

AFL-CIO

QUESTIONS PRESENTED

1. Whether or not the "one calendar

month" period of 29 U.S.C. §482 is unenforce-

able or may not be relied upon by a union to

defeat an untimely member election complaint.

2. Whether or not a three membership

rule is a “reasonable rule” in the context of

"the peculiar circumstances under which men

ship at sea.”

SUBJECT INDEX

OPINIONS BELOW ......2.0-- coe ccccvcce ce ceee 1

JURISDICTION 2... cece ceceeccercsceces oeee &

QUESTIONS PRESENTED ....ccccceccceeveccves 3

STATUTORY PROVISIONS INVOLVED ..... ee -

STATEMENT OF THE CASE ...ceeeeeeces cocecece 10

REASONS FOR GRANTING THE WRIT........+2--- 14

hw

THE COURT OF APPEALS' DECISION

CONFLICTS WITH THE DECISIONS OF

OTHER CIRCUITS RESPECTING

ENFORCEMENT OF THE "ONE CALENDAR"

MONTH LIMITATION PERIOD OF 29

U.S.C. §482(a) w~ccccccceee re cecccece 14

II.

THE COURT OF APPEALS' DECISION

CONFLICTS WITH THE DECISIONS OF

THIS COURT AND THE SECOND CIRCUIT

RESPECTING THE REASONABLENESS OF A

THREE YEAR MEMBERSHIP RULE IN THE

MARITIME INDUSTRY ....cccccccccvcrcsvecvecs 25

CONCLUSION ...cccccccccvccscccccescssescecs 36

ii

TABLE OF AUTHORITIES

Case

Beriault v. Local 40, Supercargoes

& Checkers of ILWU, 501 F.2d 258

[PEM GENs GUA BETES ce eecewsstesesivecvess 29

Blanchard v. Johnson, 532 F.2d 1074

[oun Gans GE BOEE bens bukesek db cee caer 35

Brennan v. Local Union 122, Amalga-

mated Clothing Workers of America,

3974 F.2d 657, 660 (3rd Cir. Pa. 1977) .... 22

Busch v. Givens, 627 F.2d 9787

fo Bite. Sey, lf ey a ee 35

Calhoon v. Harvey, 379 U.S. 134

fo ye: Pr rr ere ee eee ee eee 25

Complaint of B.F.T. No. Two,

Cee €.6Gpe. SSS (B.C. POs 1977) ccccccvecer 33

Garner v. Teamsters, 346 U.S.

ee Se Ret ee eek wUwkae 6 es bbe e kdb eee 29

Goldberg v. Marine Cooks and

Stewards, 204 F.Supp. 884

Peme Ge SOUR «a 6an 6 a8 cues be oes eevee 26,30

Gunther v. Washington County,

623 F.2d 1303 (9th Cir. Or. 1979),

cert. granted 449 U.S. 950 (1980);

Scars SOG Gels BOR CAPCED ci ancvcocvene 28

Gurton v. Aarons, 339 F.2d 371

t. Be RR Aree. |b ee er err 35

Hall v. Marshall, 476 F.Supp.

262 (D.C. Pa. 1979); affirmed

ee Teen Gre (268 CLE, Tee) 26 dae tee eeue as

iii

Hodgson v. District 6, United

Mineworkers of America, 464

F.2d 940, 946 (6th Cir. 1973) wee eeeeees 22

Hodgson v. Local Union 6799,

United Steelworkers, 403 U.S.

SSE ¢ SER CASTES Bee cbs bEK OFT S SK eee se Ree S 23

Hodges v. United Steelworkers

of America, 459 F.2d 348

(3rd Cir. Pa. 1972) cccccccccccccccccceces 18

Kahn v. Hotel & Restaurant Employees

and Bartenders International, 469

F.Supp. 14 (D.C. Cal. 1977) .....2eeeeee ~ oo

Marshall v. Local 1010, Int'l

Brotherhood of Painters, 90 CCH

GQ12,453 (M.D. Fla. 1980) wc cccccerecvcoes 28

Monroe v. Autoworkers, 450 F.Supp.

249, 261 (S.D. Ohio 1982) cc ceeeeeseeee 23

The Sakito Maru, 41 F.Supp. 769

(uC. CObc SEA) 0:06 664024640 5 60406 O OOO 33

Wirtz v. Local Union No. 125,

International Hod Carriers' Bldg.

and Common Laborer's Union of

America, AFL-CIO, 215 F.Supp. 703

(D.C. MiGH. LOGS) cccccsscccscescccesseses 22

Wirtz v. National Maritime Union,

399 F.2d 544 (2nd Cir. 1968) ....-ceeeeee 25

Statutes

26 G.B.6.. BOLs isc vcd uwed 0000504 64ee oes 4

26 G.8.0. SOLS ciccvwsivaccncssesencaebaatass 6

S26 U.8.Ci SOSe wea cnceee tees 3,14,16,20,ahi+02

46 U.S.C. GE51L wccccccccccccccseccccsesesece 30

iv

Regulations

oe C.F. RB. 6452.1) 2 eee re er see etisiee 28

DEC RaN Gs GOOPat sik evasaeenensebdkadekens 25

ee ee eee 30

Ee ee ee ee ee ree 31

NO.

IN THE SUPREME COURT

OF THE

UNITED STATES

——

October Term, 1984

THE SAILORS' UNION OF THE PACIFIC,

SEAFARERS INTERNATIONAL UNION OF

NORTH AMERICA, AFL-CIO

Petitioners,

vs.

RAYMOND J. DONOVAN,

PETER TURNER,

Respondents.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT

OF APPEALS FOR THE NINTH CIRCUIT

Petitioner Sailors' Union of the Pacific,

Seafarers International Union of North Amer-

ica, AFL-CIO, respectfully prays that a writ

of certiora’i issue to review the judgment

and opinion of the United States Court of Ap-

peals for the Ninth Circuit entered <n this

proceeding on August 7, 1984.

OPINIONS BELOW

The Court of Appeals denial of Petition

for Rehearing was entered on September 25,

1984. The opinion of the Court of Appeals

was entered August 7, 1984, [Appendix A], and

affirms the opinion of the District Court for

the Northern District of California entered

on October 31, 1983, [Appendix B].

JURISDICTION

This Court's jurisdiction is invoked un-

der Title 28, United States Code, Section

1254(1).

QUESTIONS PRESENTED

1. Whether or not the "“one calendar

month" period cf 29 U.S.C. §482 is unenforce-

able or may not be relied upon by a union to

defeat an untimely member election complaint.

2. Whether or not a three membership

rule is a "reasonable rule" in the context of

"the peculiar circumstances under which men

ship at sea."

STATUTORY PROVISIONS INVOLVED

The following statutory provisions are

primarily involved in the disposition of this

matter:

United States Code, Title 29:

§41l1. Bill of rights; constitution and

bylaws of labor organizations:

(a)(1) Equal rights.--Every member

of a labor organization shall have

equal rights and privileges within

such organization to nominate can-

didates, to vote in elections or re-

ferendums of the labor organization,

to attend membership meetings, and

to participate in the deliberations

and voting upon the business of such

meetings, subject to reasonable

rules and regulations in such organ-

ization's constitution and bylaws.

(2) Freedom of speech and assem-

bly.--Every member of any labor

Organization shall have the right to

meet and assemble freely with other

members; and to express any views,

arguments, Or opinions, and to ex-

press at meetings of the labor

Organization his views, upon candi-

:

:

:

dates in an election of the labor

Organization or upon any business

properly before the meeting, subject

to the organization's established

and reasonable rules pertaining to

the conduct of meetings: Provided,

That nothing herein shail be con-

strued to impair the right of a

labor organization to adopt and en-

force reasonable rules as to the

responsibility ot every member

toward the organization as an insti-

tution and to his refraining from

conduct that would interfere with

his performance of its legal or con-

tractual obligations.

§412. Civil action.

Any person whose rights secured by

the provisions of this subchapter

have been infringed by any violation

of this subchapter may bring a civil

action in a district court of the

United States for such relief (in-

cluding injunctions) as may be ap-

propriate. Any such action against

a labor Organization shall be

brought in the district court of the

United States for the district where

the alleged violation occurred, or

where the principal office of such

labor organization is located.

§482. Enforcement.

Piling of cmplaint; presumption of vaili-

dity.

(a) A member of a labor organiza-

tion--

(1) who has exhausted the reme-

dies available under the constitu-

tion and bylaws of such organization

and of any parent body, or

(2) who has invoked such avail-

able remedies without obtaining a

final decision within three calendar

months after their invocation,

may file a complaint with the Secre-

tary within one calendar’ month

thereafter alleging the violation of

any provision of section 481 of this

title (including violation of the

constitution and bylaws of the labor

organization pertaining to the elec-

tion and removal of officers). The

of civil action by Secretary;

challenged election shall be pre-

sumed valid pending a final decision

thereon (as hereinafter provided)

and in the interim the affairs of

the organization shall be conducted

by the officers elected or in such

other manner as its constitution and

bylaws may provide.

Investigation of complaint; commencement

preservation of assets

(b) The Secretary shall investi-

gate such complaint and, if he finds

probable cause to believe that a

violation of this subchapter has oc-

curred and has not been remedied, he

Shall, within sixty days after the

filing of such complaint, bring a

Civil action against the labor or-

jurisdiction;

ganization as an entity in the dis-

trict court of the United States in

which such labor organization main-

tains its principal office to set

aside the invalid election, if any,

and to direct the conduct 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 subchapter 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.

10

STATEMENT OF THE CASE

A. Procedural Statement

The within action was filed October 8,

1982, by the Secretary of Labor pursuant to

the provisions of the Labor-Management Re-

\porting and Disclosure Act (LMRDA), 29 U.S.C.

§§401 et seg., alleging that Petitioner Sail-

ors’ Union of the Pacific (SUP) conducted an

election of officers from December 1, 1981,

to January 31, 1982, under voter eligibility

cules deemed violative of the Act, to wit:

the application of a three year membership

rule as a precondition for participation in

SUP elections. (CR 1).* Petitioner filed

its Answer on November 2, 1982. foR 5S).

*Citations are to Clerk's Record in Ninth

Circuit.

11

Discovery by way of requests for admis-

sions and interrogatories was had between the

parties; and on March 7, 1983, Appellant SUP

moved for summary judgment in its favor. (CR

25).

Thereafter, on March 1l, 1983, Respondent

Donovan filed his answer to the Counterclaim

previously filed by Petitioner on November 2,

1983. (CR 13).

Respondent's response and cross-motion

for summary judgment was filed April ll,

1983. (CR 84).

On April 19, 1983, Peter Turner, plain-

tiff in the related matter of Turner v. Demp-

ster, No. 83-2407, filed a complaint in

intervention and moved for intervenor status

in the within action.

12

Petitioner's opposition to the cross-

motion for summary judgment was filed June 6,

1983, together with its opposition to the

complaint and motion for intervention previ-

ously filed by Peter Turner. (CR 149).

The parties’ respective motions for sum-

mary judgment, and the motion to intervene

interposed by Peter Turner, were heard by the

District Court on September 15, 1983; and on

September 27, 1983, the Court entered an

Order granting summary judgment in Respon-

dent's favor based upon its finding that, for

Purposes of voting eligibility, the SUP's

"three year requirement is unreasonable and

violative of 29 U.S.C. §481l(e)." Mr.

Turner's motion to intervene was denied. (CR

18).

13

B. Factual Statement

The facts pertinent to this appeal are

that Petitioner SUP conducted an Officers

Election from December 1, 1981, through Janu-

ary 31, 1982, under a union constitutional

requirement that limited voter and candidacy

eligibility in SUP elections to members with

three or more years of union membership and,

in protest thereto, Respondent Peter Turner

failed to file a timely complaint pursuant to

the "one calendar month" limitation period of

29 U.S.C. §482(a), all of which facts are set

forth in the Court of Appeals Opinion

appended hereto.

14

REASONS FOR GRANTING THE WRIT

I.

THE COURT OF APPEALS' DECISION

CONFLICTS WITH THE DECISIONS

OF OTHER CIRCUITS RESPECTING

ENFORCEMENT OF THE “ONE

CALENDAR MONTH" LIMITATION

PERIOD OF 29 U.S.C. §482(a)

The Court of Appeals' answer to Peti-

tioners' challenge to the untimeliness of

Respondent Turner's election complaint was

that the "union failed to satisfy its obliga-

tion of clearly providing a responsive proce-

dure for members to contest election

results," and therefore the mere mailing of a

letter to the union's president on March 12,

1982, was sufficient to meet the timeliness

requirement of 29 U.S.C. §482(a). Yet, both

the facts of the case and the controlling

case law in the third and sixth circuits com-

pel a different conclusion.

AS provided by the SUP's Constitutiuon

and Bylaws, the sole conceivable avenue for

15

protest to the union's election procedures

would be an objeciton to the report of the

Balloting Committee, which is vested with the

responsibility of supervising officer elec-

tions. As provided in pertinent part by Art-

icle XIII, Section 10:

The report of the Impartial Bal-

loting Agent shall be signed by the

Balloting Committee. The report

shall be read to the membership at

Headquarters and all Branches at the

first regular meeting after prepara-

tion of their report and shall be

spread in full upon the minutes. If

approved by the membership, the re-

port shall be accepted as final and

shall conclusively establish that

the election was properly conducted

and the ballots properly counted.

16

(Emphasis supplied. ) Par. 5, Demp-

ster Declaration. (CR 82).

The report of the Impartial Balloting Agent

relating to the December l-January 31, 1982,

Officer's Election was submitted for member-

ship approval and approved on February 8,

1982. Par. 6, Dempster Declaration. (CR

82).

Thus, by operation of the SUP's Constitu-

tion and Bylaws, the "remedies available," if

any, existed under Article XIII, Section 10,

above; and, upon the filing of the Balloting

Committee's report of February 8, 1982, which

is constitutionally deemed a "final" decision

on the propriety of the eleciton, the "one

calendar month" limitation period within

which to file a complaint with Respondent's

Secretary commenced. 29 U.S.C. §482(a).

Yet, under the alleged facts of appellee's

17

Complaint, member Turner failed to file any

complaint with the Secretary until July 6,

1982, some five calendar months after the

exhaustion date of any possible remedy under

the SUP Constitution. Par. VII, Complaint

(10/8/82). (CR 2).

The fact that no other remedy existed

after February 8, 1982, was further confirmed

by the Department of Labor in its discussions

with SUP officials and counsel in August of

1982, when it advised the Union that in the

Department's view the union had no internal

remedies to exhaust after the filing of the

Balloting Committee's report other than

direct recourse to the Department of Labor,

and so confirmed their view in writing. Par.

4, Dempster Declaration. (CR 81).

Under substantially similar circum-

stances, the Third Circuit in Hodges v.

|

——— ee

18

United Steelworkers of America, 459 F.2d 348,

352 (3rd Cir. Pa. 1972), sustained a summary

judgment against the Secretary's action for

failure of the complainting member to file

within "one calendar month” following the ex-

piration and exhaustion of his remedy under

his union constitution. In Steelworkers, as

herein, the final action of the union in-

volved the filing of a "Tellers Report” con-

firming the propriety of the challenged

procedure, causing the Court to hold:

Because Wisniewski could have

had a union remedy available later

than April 18, 1969, the day the

Teller's Report was filed, and be-

cause Winiewski's letter of protest

to the Secretary of Labor was filed

on May 29, 1969--clearly beyond the

30 day period provided by the sta-

tute--the district court properly

cies, i, a,

19

granted the International's motion

for summary judgment. (Emphasis

supplied.)

By like logic, since member Turner had no

union remedy after February 8, 1982, the day

the Election Committee's report was filed,

his July 6, 1982, filing was untimely.!

This jurisdictional shortfall is also

evident, though in another form, on the very

1. It should be noted in this regard that

member Turner admitted his awareness of the

finality of this date in his protest letter

of March 12, 1982, wherein he contested the

fact that the Election Committee's Report had

been adopted by the membership , claiming,

instead, that:

The majority of the members

voting at headquarters and at the

branches during the regular February

meetings have non-concurred with the

balloting committee's report,

contrary to the article on the front

page of the February issue of the

"West Coast Sailors.” Par. 7,

Dempster Declaration. (CR 82).

20

face of Respondent's Complaint. Paragraph

VII thereof provides as follows:

By letter dated March 12, 1982,

Peter Turner, a member in good

Standing of the local, filed a pro-

test of the election with defen-

dant's President Paul Dempster. By

letter dated April 2, 1982, Dempster

informed Turner that his protest was

being forwarded to the American Ar-

bitration Association. By letter

dated July 2, 1982, which is within

one calendar month after invoking

internal remedies for *hree calendar

months, Turner filed a timely com-

plaint. (Emphasis supplied.) Com-

plaint (10/8/82). (CR 2).

The referenced forwarding of Turner's protest

to the American Arbitration Association, ra-

21

ther than acceptance of such by the SUP, con-

stituted a rejection of the protest by the

Union because under no view of the facts, or

reading of the Constitution and Bylaws of the

SUP, could one conclude that the American Ar-

bitration Association was part of, or consti-

tuted, a “remedy available under the consti-

tution and bylaws of such organization and of

any parent body” as specified by LMRDA Sec-

tion 402(a), 29 U.S.C. §482(a)(1).

It would follow, therefore, that as of

the rejection of member Turner's letter and

forwarding to the American Arbitration Asso-

ciation on April 2, 1982, Mr. Turner had

“exhausted” his remedies with the “labor

Organization" and was compelled by law to

"file a complaint with the Secretary within

one calendar month thereafter,” which would

have required a filing on or about May 2,

1982, and not two months later on July 6,

22

1982. Given this failure, Respondent's have

failed to plead a case within the jurisdic-

tional parameters of LMRDA Section 402(a), 29

U.S.C. §482(a). FRCP 12(c); Wirtz v. Local

Union No. 125, International Hod Carriers'

Bldg. and Common Laborer's Union of America,

AFL-CIO, 215 F.Supp. 703, 709 (D.C. Mich.

1963); Hall v. Marshall, 476 F.Supp. 262, 265

(D.C. Pa. 1979); affirmed 622 F.2d 578 (3rd

Cir. 1980).

Moreover, there is no reported or

unreported case declaring that the "one

calendar month" period of LMRDA Section 402,

29 U.S.C. §482, is unenforceable or may not

be relied upon by a union to defeat an

untimely member complaint. See: Hodgson yv.

District 6, United Mineworkers of America,

474 F.2d 940, 946 (6th Cir. 1973), F.2d 70,

75 (3rd Cir. Pa. 1983); Brennan vy. Local

Union 122, Amalgamated Clothing Workers of

23

America, 564 F.2d 657, 660 (3rd Cir. Pa.

1977); and, Hodgson v. Local Union 6799,

United Steelworkers, 403 U.S. 3336 341

(1971).

As regards the second prong of the Court

of Appeals' decision that the Union was

delinquent in some manner in not educating

Mr. Turner as to the extent of his available

remedies, this argument is likewise

deficient. Ignorance is not an excuse for

the failure to exhaust internal union

remedies. "Union members cannot rely on

their ignorance of intra-union procedures, or

their failure to determine the same, or,

indeed, on misrepresentations by union

officials (citations)" as an excuse for not

becoming aware of the extent and existence of

such remedies. Monroe v. Autoworkers, 540

F.Supp. 249, 261 (S.D. Ohio 1982).

24

More importantly, however, member Turner

was at all times pertinent to the filing of

his election complaint represented by coun-

sel, he had the benefit of an ongoing liaison

with the Department of Labor and with all

parties relative to the filing of such a com-

plaint arising out of the related case of

Turner v. SUP, No. 83-2407, and he must be

charged with notice that the Department of

Labor had formally advised the SUP that it

had no internal remedies after the filing of

the Balloting Committee's Report on February

8, 1982. [D-AB 7-7]. Against this factual

background, we are not faced with an unrepre-

sented unsophisticated union member being

disadvantaged by a lack of his knowledge of

his available remedies.

25

Il.

THE COURT OF APPEALS‘ DECISION

CONFLICTS WITH THE DECISIONS

OF THIS COURT AND THE SECOND

CIRCUIT RESPECTING THE REASONABLE-

NESS OF A THREE YEAR MEMBERSHIP

RULE IN THE MARITIME INDUSTRY

The Court of Appeals held that the SUP's

"three year requirement is inconsistent with

the purposes of the Act and not in compliance

with the Secretary's regulation" to the ef-

fect that a membership requirement longer

than two years is impermissible, citing 29

CFR §452.37. However, in so concluding, the

Court of Appeals’ decision made no allowance

for the longer periods of time allowed by

this court and other courts.

In its decision in Calhoon v. Harvey, 379

U.S. 134 (1964), this Court approved imple-

mentation of a five year membership rule

under the circumstances applicable to the Ma-

rine Engineers Beneficial Association. And,

in Wirtz v. National Maritime Union, 399 F.2d

26

544 (2nd Cir. N.Y. 1968), affirming the

District Court's decision at 284 F.Supp. 46

(D.C.N.Y. 1968), the Second Circuit approved

a five year membership-~ rule. These

acerca ‘id we submit, are a reflection of the

exceptional status accorded maritime unions

under the Labor Management Reporting and

Disclosure Act, which status is best re-

flected in the case holding of Goldberg v.

Marine Cooks and Stewards, 402 F.Supp. 804,

845 (D.C.N.D. Cal. 1967), in which the Dis-

trict Court found that:

It is true that under the rules

of the union constitution, an indi-

vidual must serve for an extended

period at sea during three years of

shipping before he is eligible to

become a full-book member and that

such protracted period precludes

many individuals from becoming eli-

«ek ll

27

gible to vote, but it is not for the

Court to upset such membership re-

quirements unless it be deemed arbi-

trary and capricious or otherwise

unreasonable. The peculiar circum-

stances under which men ship at sea

are such as to warrant the imposi-

tion of conditions which assure

Stability of employment over a per-

iod of time. This the union has

sought to do. It might well be that

the condition imposed by the union

is unnecessarily long as viewed by

the Court; but it is not for this

tribunal to impose its concept of a

proper period upon the union. Ac-

cordingly, the Court finds that only

full-book members are eligible to

vote in the election to be conducted

by the Secretary of Labor. (Empha-

sis supplied.)

28

Ibid. at 845.

In sum, the Calhoon and Wirtz decisions

enhance the propriety of the District Court's

decision in Goldberg v. Marine Cooks and

Stewards, 204 F.Supp. 844 (D.C. Cal. 1962),

and sustain Petitioner SUP's three year rule

as eminently "reasonable" under the circum-

Stances. 29 U.S.C. §48l(c). Also: Marshall

v. Local 1010, Int'l Brotherhood of Paintezs,

90 CCH 412,453 (M.D. Fla. 1980) [four year

membership rule]. By applying these holdings

to this case, moreover, the interests of

developing a consistent body of federal labor

law is served and the instructive effect of

these rulings within the context of the LMRDA

will not be rejected. 29 C.F.R. Part 452,

§452.1 [conduct governed by “authoritative

rulings of the courts"]; Gunther V.

Washington County, 623 F.2d 1303, 1319 (9th

3ir. Or. 1979), cert. granted 449 U.S. 950

29

(1980); affirmed, 452 U.S. 161 (1981) [rea-

soning of other circuits and district courts

pertinent to deliverations]; Garner v. Team-

sters, 346 U.S. 485, 490-491 (1953) ["diver-

Sities and conflicts" in labor law to be

avoided]; Beriault v. Local 40, Supercargoes

& Checkers of ILWU, 501 F.2d 258, 260-261

(9th Cir. Cal 1974) ["potentially conflicting

rules of law ... cannot be permitted to

operate” in the field of labor relations].

Putting aside the controlling effects of

Goldberg v. Marine Cooks and Stewards, supra,

and Wirtz v. National Maritime Union, supra,

and Calhoon v. Harvy, supra, the SUP's three

year membership rule was nonetheless "“reason-

able.” Section 10l(a)(1) of the LMRDA, 29

U.S.C. §4ll(a)(1) states that "every member

of a labor organization shall have equal

rights and _ privileges sas to vote in

elections or referendums .. subject’ to

30

reasonable rules and regulations in_= such

Organization's constitution and by-laws."

(Emphasis supplied.) While the observations

of the Department of Labor of what is "“"rea-

sonable" may well be supportable in the work-

ing environment of the factory, shop or

office, it is not particularly well suited to

"the peculiar circumstances under which men

ship at sea." Goldberg v. Marine Cooks and

Stewards, supra at 884.

A major “circumstance” of a seaman's life

is the fact that his profession is one of the

most regulated employments in the scheme of

federal regulations, with a prior history of

some one hundred years of statutory control.

See: 46 U.S.C. §451 et seg.; 29 C.F.R. Sub-

chapters B and P. Over the years, the Coast

Guard has effectively engrafted into the sta-

tutory scheme an "apprentice program" of rat-

ings, classifications, certifications,

ach Sabatier WINE ates oe St he

etn oth tet

Nn a lh ts aa sles Se Ne eC RR AT te A eee

et atte aaa Ma 8 ts Na

31

examinations and experience qualifications

specifically designed to assure the employ-

ment of qualified merchant mariners. Com-

pare: 29 C.FP.R. §29.4.2 This unrivaled

governmental concern with the qualification

of seamen is dictated by the special skill

and safety demands made upon seagoing person-

nel and the risk that inexperienced and un-

qualified individuals pose. For this reason,

2. Employment as a professional seaman would

appear to meet the regulatory criteria for

"apprenticeable occupations" set forth by the

Secretary of Labor pursuant to the National

Apprenticeship Act of 1937, 29 U.S.C. §50,

and reported at 29 C.F.R. §29.4:

Criteria for apprenticeable

occupations:

An apprenticeable occupation is a

skilled trade which possesses all of

the following characteristics:

(a) It is customarily learned in

a practical way through a struc-

tured, systematic program of on-the-

job supervised training. [Seamen

proceed up a hierarchical ladder

from Ordinary Seaman to Able Un-

limited under command supervision at

all stages. See: 46 U.S.C. .§§672,

29 C.F.R. §12.01 et seg.)

32

by statute and regulation, the Coast Guard

has promulgated certain manning qualifica-

tions of unlicensed seamen aboard United

States flag vessels. See: 46 U.S.C. §672;

46 C.F.R. 157.20. Failure to secure compli-

ance with these legally mandated manning

scales exposes vessel operators not only to

Ze (continued)

(b) It is clearly recognized and

identified throughout an industry.

[Coast Guard jurisdiction over

training and certification of Ameri-

can seamen has been exclusive for

well over a century in the maritime

industry. See 46 U.S.C. §§451-713.]

(c) It involves manual, mechan-

ical or technical skills and know-

ledge which requires a minimum of

2,000 hours of on-the-job work ex-

perience. [The certification of an

able bodied seaman requires three

year's employment at sea. See: 29

C.F.R. §12.05-7 - Service or Train-

ing Requirements. ]

(d) It requires related in-

Struction to supplement on-the-job

training. [Andrew Furseth School,

Sec. 2, SUP Shipping Rules, Exhibit

A, Dempster Declaration; Ordinary

Seaman laid off for training; Sec.

49, SUP Shipping Rules, Ibid.]

33

Coast Guard sanctions, but also to liability

damages for torts occurring as a result of

deficient manning. See: Complaint of B.F.T.

No. Two, 433 F.Supp. 854, 865-866 (D.C. E.D.

Pa. 1977); The Sakito Maru, 41 F.Supp. 769,

777 (D.C. C.D. Cai. 1941).

This statutory scheme has been embodied

in the collective bargaining agreements pre-

vailing in the maritime industry, particu-

larly in the area of hiring halls. The prac-

tice of the SUP under their collective bar-

gaining agreement with the Pacific Maritime

Association (PMA) is typical in that it con-

tractually binds the union to. providing

"qualified seamen" in required ratings to man

PMA vessels, with priority being given to the

dispatch of certified members based on prior

seatime. Pars. 3, 4, 6, Turner - Dempster

34

Declaration, Exhibit One, Dempster Declara-

tion. (CR 65-66).

Given a statutory scheme substantially

limiting employment to only qualified and

certificated personnel, and given a contrac-

tual obligation to dispatch only qualified

personnel, it can hardly be termed "unreason-

able" for a union to structure its membership

according to the differing qualifications,

experience levels and interests of its mem-

bers so that it can meet those contractual

and statutory obligations.

The subject three year rule, by postpon-

ing the grant of full membership rights, has

the salutary effect of requiring new members

to pursue the statutory scheme “which is de-

signed to produce competent (seamen) in the

industry the union serves.” 29 C.F.R.

§452.89. The rule can hardly be attacked as

35

"unreasonable" under the “peculiar circum-

stances” herein; and, the sustaining of this

rule would be consistent with the policy of

the federal courts to “exercise sound reluc-

tance to interfere with union affairs." Kahn

v. Hotel & Restaurant Employees and Barten-

ders International, 469 F.Supp. 14, 20-21

(D.C. Cal. 1977); Busch v. Givens, 627 F.2d

9787, 981 (9th Cir. Cal. 1980); Stelling v.

Brotherhood of Electrical Workers, 487 F.2d

1378, 1389 (9th Cir. Cal. 1978); Blanchard v.

Johnson, 532 F.2d 1074, 1078 (6th Cir. Ohio

1976); Gurton vy. Aarons, 339 F.2d 371, 375

(2nd Cir. N.Y. 1964)

36

CONCLUSION

For the foregoing reasons, therefore, a

writ of certiorari should issue to review the

Opinion of the Ninth Circuit in this matter.

HENNING, WALSH & RITCHIE

By JOHN F. HENNING, JR.

100 Bush Street, Suite 440

San Francisco, CA 94104

Telephone (415) 981-4411

Attorney for Petitioner

Appendix A

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

No. 83-2523

RAYMOND J. DONOVAN, Secre-

tary of Labor, United States

Department of Labor,

Plaintiff-Appellee,

vs.

SAILORS' UNION OF THE

PACIFIC and PAUL DEMPSTER,

Defendants-Appellants.

me ee ee ee ee ee

[August 7, 1984]

Appeal from the United States District Court

for the Northern District of California

Robert P. Aguilar, District Judge, Presiding

Argued and Submitted June 14, 1984

Before HUG, TANK and FARRIS, Circuit Judges

A-2

FARRIS, Circuit Judge:

The Sailors' Union of the Pacific con-

ducted an election of officers from December

1, 1981, to January 31, 1982. Under the

union's constitution, only those individuals

who had been union members for three years or

more were permitted to run for office or

vote. Turner protested the election results

by writing a letter to the President of the

union. Approximately four months later, he

filed a complaint with the Secretary of Labor

under section 402(a) of the Labor-Management

Reporting and Disclosure Act of 1959. 29

U.S.C. §482(a). The Secretary filed suit

under the Act to challenge the union's voting

and candidate elibility requirements and the

election results. The district court held

that the three-year membership requirements

was unreasonable and invalidated the election

results. We affirm.

TIMELINESS OF COMPLAINT

The union argues that Turner's complaint

to the Secretary was not timely. 29 U.S.C.

§482(a) provides that a union member:

(1) who has exhausted the remedies

available under the constitution and

bylaws ... or (2) who has invoked

such available remedies without ob-

taining a final decision within

three calendar months after their

invocation, may file a complaint

with the Secretary within one calen-

dar month thereafter ....

The union constitution does not expressly

provide for a procedure which members may use

to challenge election results. Article XIII,

section 10 provides that the Balloting Com-

mittee must submit an election report to the

A-4

membership which, if approved, conclusively

establishes that the election was properly

conducted. The report was approved on Feb-

ruary 8, 1982. The union argues that Turn-

er's failure to contest the election report

and file a complaint with the Secretary with-

in one month of the approval of the report

renders his complaint untimely. We reject

the argument. Neither Article XIII nor any

other provision of the constitution states

that the procedure for challenging an elec-

tion is to contest the Committee Report.

Turner's failure to file a complaint within

one month of the approval of the report does

not render his complaint untimely.

On March 12, 1982, Turner filed a protest

with the union President. The President re-

plied on April 2, 1982, saying that he had

forwarded the protest to the American Arbi-

tration Association. On July 6, 1982, Turner

A-5

filed a complaint with the Secretary of

Labor. Turner argues that, in protesting to

the President, he pursued the remedy avail-

able under Article XV, sections 2(a) and (d)

of the union constitution. Section 2(a) pro-

vides that the President "shall represent the

Union on all occasions where representation

is required and not otherwise provided by the

Constitution." Section 2(d) provides that

the President "shall bring before the regular

and special meetings such grievances as may

have been reported to him by members ...."

The union failed to satisfy its obliga-

tion of clearly providing a responsive pro-

cedure for members to contest’ election

results. See Wirtz v. Local Union 125, La-

borers' Int'l Union of North America, 389

U.S. 477, 484 (1968). Turner therefore had

no guidance on how to present his challenge.

Sending the protest letter to the President

A-6

was reasonable under the circumstances. When

the President received the letter, the union

wasS put on notice that Turner was protesting

the election results. See Schultz v. Local

1291, Int'l Longshoremen's Ass'n, 429 F.2d

592, 597-98 (3d. Cir. 1970).

Since Turner reasonably attempted to in-

voke union remedies on March 12, 1982, and

did not obtain a final decision within three

months, he had one month thereafter within

which to file a complaint with the Secretary.

See 29 U.S.C. §482(a)(2). His July 6, 1982,

complaint was therefore timely filed.

CANDIDATE ELIGIBILITY

The district court held that the union

rule restricting candidate eligibility to

those individuals who had been union members

for three years was unreasonable and viola-

tive of 29 U.S.C. §48l(e). We review de

A-7

novo. Brennan v. Local 3489, United Steel-

workers of America, 520 F.2d 516, 523 (7th

Cir. 1975), aff'd sub nom. Local 3489,

United Steelworkers of America, AFL-CIO v.

Usery, 429 U.S. 305 (1977).

29 U.S.C. §48l(e) provides that "every

member in good standing shall be eligible to

be a candidate and to hold office (subject to

«+. reasonable qualifications) ..." The

Supreme Court has twice considered the reas-

onableness of candidate eligibility require-

ments under section 48l(e). In Local 3489,

United Steelworkers of America v. Usery, 429

U.S. 305 (1977), the Court held unreasonable

a union rule limiting eligibility to members

who had attended at tedat half of the local's

regular meetings for three years prior to the

election. In Wirtz v. Hotel, Motel & Club

Employees Union, Local 6, 391 U.S. 492

(1968), the Court invalidated a union rule

A-8

which limited eligibility for major elective

officers to members holding elective office

or who had previouslyi held elective office.

In both cases, the Court concluded that the

antidemocratic effects of the rules out-

weighed the interests asserted in support of

the rules. Although Steelworkers and Hotel

Workers did not concern restrictions based on

length of membership, they indicate that re-

strictions on candidate eligibility should be

closely scrutinized. The "reasonable quali-

fications” limitation of 29 U.S.C. §481(e)

should not be given a broad reach. Hotel Em-

ployees, 391 U.S. at 499.

Whether a particular qualification is

reasonable depends on its consistency with

the purposes of the Act. Steelworkers vy.

Usery, 429 U.S. 305, 309 (1977). The Act was

intended to prevent undemocratic practices in

union government, including dictatorial and

A-9

corrupt leadership and a disregard for the

rights of the rank and file. Hotel Employ-

ees, 391 U.S. at 497. Congress decided that

through free and democratic elections, union

members could take the necessary steps to

fight abuses of power by union leadership.

Wictz v. Local 153, Glass Bottle Blowers

Assn., 389 U.S. 463, 470-71 (1968). Qualifi-

cations that unduly interfere with a free

choice of candidates are at cross-purposes

with the Act and therefore are unreasonable.

Donovan v. Local No. 120, Laborers’ Int'l

Union of North America, 683 F.2d 1095, 1102

(7th Cir. 1982).

We are guided also by the Secretary's

regulation on eligibility restrictions.

Under 29 C.F.R. §452.37, a union may limit

candidate eligibility to those individuals

who have been union members for at least two

years, but a longer membership requirement is

A-10

impermissible. The Secretary's interpreta-

tive regulation is not binding, but is enti-

tled to consideration. See Usery v. Local

Div. 1205, Amalgamated Transit Union, 545

P.2d 1300, 1304 (lst Cir. 1976); Donovan v.

Local 719 U.A.A.A.1I.W. of America, 561

F.Supp. 54, 57 n.2 (N.D.I11. 1982); but see

Wirtz v. Local Union No. 406, 254 F.Supp.

962, 966 (E.D.La. 1966) (candidate eligibil-

ity regulations entitled to great weight.)

The three-year rule cannot be justified

on the ground that it ensures that candidates

will more likely be familiar with union mem-

bers and union conditions. See Marshall v.

Local 1010, Int'l Brotherhood of Painters and

Allied Trades, AFL-CIO, 103 L.R.R.M. 3106

(M.D.Pla. 1980). Although it may be desir-

able for candidates to know fellow members

and be aware of union conditions, the three-

year rule assumes that union members are un-

A-11

able to use their good judgment in electing

officers. See Wirtz v. Local Union 262,

Glass Bottle Blowers Ass'n, 290 F.Supp. 965,

968 (N.D.Cal. 1968). This conflicts with the

clear congressional intent that the good

judgment of union members in casting their

votes should be the primary determinant of

whether a candidate is qualified for office.

See Steelworkers v. Usery, 429 U.S. 305, 312

(1977).

The three-year requirement is inconsis-

tent with the purposes of the Act and not in

compliance with the Seeretary's regulation.

It unduly restricts the rights of members in

good standing to become candidates and denies

the right of the members to vote for candi-

dates of their choice. See Local Union No.

406, 254 F.Supp. at 966. We hold that the

rule is unreasonable.

A-12

The union's reliance on Wirtz v. National

Maritime Union of America, 284 F.Supp. 47

(S.D.N.Y.), aff'd on other grounds, 399 F.2d

544 (2d Cir. 1968), is misplaced. There, the

court upheld a union rule restricting candi-

date eligibility for sub-national office

positions to individuals who had been union

members for five years.1 The court said that

since the union had few lower level officers

and no local branches, it could permissibly

require that sub-national positions be held

by longtime members. Id. at 62. The court

also said that it would not interfere with

the union's governance of its’ internal

affairs where an overwhelming majority of

members had adopted the five-year rule.

1. Although the five-year rule applied to

candidates for sub-national and national

office, candidates for national office were

also required to have held prior office. The

district court held that this prior office

reguirement was unreasonable. Id. at 66. The

Second Circuit affirmed. Wirtz v. National

Maritime Union of America, 399 F.2d 544, 550

(2d Cir. 1968).

EE a

The rule in National Maritime Union is

limited to that unusual factual situation.

In contract to the National Maritime Union,

the Sailors’ Union has many local branches.

Its three-year rule restricts candidate eli-

gibility for all offices. Thus, the asserted

justification in National Maritime Union of

having longtime members hold sub-national

office is not present. Also, although the

Sailors' Union recently passed the three-year

rule in a constitutional referendum, we do

not regard the rule as a clear indicator of

members' wishes becuase none of the “permit

members” was permitted to vote.

VOTER ELIGIBILITY

The union constitution provided that only

those individuals who had been union members

for three years or more could vote in officer

elections. The district court held that the

A-14

rule was unreasonable and violative of 29

U.S.C. §48l(e). We agree.

The Act expressly guarantees union mem-

bers the right to vote in union elections.

See 29 U.S.C. §§4ll(a)(1), 48l(e). Title IV

of the Act was intended to ensure free and

Gemocratic union elections. See Local No.

82, Furniture & Piano Moving, Furniture Store

Drivers, Helpers, Warehousemen & Packers v.

Crowley, 52 U.S.L.W. 4757, 4761 (U.S. June

12, 1984); Steelworkers v. Usery, 429 U.S.

305, 309 (1977). <A major goal was to ensure

full and active participation by the rank and

file in the affairs of the union. American

Federation of Musicians v. Wittstein, 379

U.S. 171, 182-83 (1964). The three-year rule

deprives some members of their right to vote,

prevents democratic elections and seriously

restricts participation by union members. We

hold the rule violates 29 U.S.C. §48l(e).

Our conclusion is supported by the Secre-

tary's interpretative regulation on voter

eligibility restrictions. 29 C.F.R. §452.88

provides that a union may reasonably require

a new member to remain in good standing for

up to a year before being permitted to vote,

but that a longer period is unreasonable.

The union rule failes to comply with this

regulation.

The union argues that the rule is neces-

Sary because the seaman's profession is

heavily regulated. It points to Coast Regu-

lations which require seaman competence. The

union appears to be arguing that the three-

year rule, by withholding full membership

rights, encourages new members to remain in

the union and thereby become competent sea-

men. This argument is without merit. The

union has failed to demonstrate a connection

A-16

between the three-year rule and seaman compe-

tence. The fact that an individual has been

a union member for a specified period of time

does not ensure that the member will be com-

petent.

The union also argues that we are bound

by Goldberg v. Marine Cooks & Stewards Union,

204 F.Supp. 844 (N.D.Cal. 1962), in which the

court upheld a union rule which conferred

voting rights only on "full book” members who

had acquired five years of experience at sea.

Marine Cooks, however, is of little preceden-

tial value because it was decided prior to

the many Supreme Court decisions emphasizing

the Act's goal of free and democratic elec-

tions and broad member participation. See,

e.g., Crowley, supra; Steelworkers, supra;

Federation of Musicians, supra.

A-17

In affirming the district court decision,

we need not address Turner's argument that a

union member has an unqualified right to vcte

in officer elections and that all voting

restrictions violate the Act. We hold only

that the Sailors’ Union's three-year rule

violates 29 U.S.C. §48l(e).

AFFIRMED.

Appendix B

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

: No. C 82-5569 RPA

RAYMOND J. DONOVAN, Secre-

tary of Labor, United States

Department of Labor,

Plaintiff,

vs.

SAILORS' UNION OF THE

PACIFIC, SEAFARERS INTER-

NATIONAL UNION OF NORTH

: AMERICA,

Defendants.

ee ee eee ee ee”

[September 27, 1983]

ORDER

B-2

The parties' cross-motions for summary

judgment came on for a regularly scheduled

hearing on September 15, 1983. Having re-

ceived, read and considered the arguments of

counsel, and for good cause appearing, the

Court hereby enters the following order.

1. Defendant union conducted an election

of officers in December 1981. In order to

vote in this election, a union member had to

have been a member of the union for three

years.

2. The Court finds that the three year

requirement is unreasonable and violative of

29 U.S.C. §481(e).

3. Because the Court finds that the

election was conducted pursuant to voter eli-

gibility requirements that the Court finds

unreasonable and violative of 29 U.S.C.

B-3

§48l(e), the Court concludes that the elec-

tion of the officers must be set aside as

null and void.

4. The Court orders that defendant union

conduct a new election for union officers

within 180 days of entry of this Order.

5. The Court further directs that the

new election be conducted by means of a mail

ballot at the expense of the defendant and

under the supervision of plaintiff and his

agents, pursuant to the provisions of Title

IV of the Labor Management Relations Act and

insofar as is lawful and practicable in

accordance with defendant's constitution and

by-laws.

6. The Court further orders that plain-

tiff supervise new election of officers. De-

fendant shall not take any act implementing

B-4

election procedures without the approval or

authorization and supervision of plaintiff.

The authority Court vests in plaintiff with

this Order runs from date of this Order until

the date of entry of Order by the Court after

is has received certification by the Secre-

tary of Labor of the newly elected officers.

7. The Court orders that the persons

currently holding office may continue to do

so until the installation of officers follow-

ing the new election. The persons elected as

officers pursuant to the new election shall

be allowed to serve the remainder of the two

(2) year term of office provided for in de-

fendant's by-laws which began on the date of

installation following the December 1, 1981,

to January 1, 1982, election, and a full con-

stitutional term beginning on the date of in-

Stallation following the new election.

B-5

8. The Court will retain jurisdiction

over this action pending completion of the

new election. After the election, plaintiff

will promptly certify to the Court the names

of the persons elected in the new election

and certify that the election was conducted

in accordance with provisions of Title IV of

the Act and insofar as is lawful and practic-

able in accordance with the constitution and

by-laws of defendant union.

The Court intends the above stated orders

and directives to be dispositive of the

issues raised in the parties’ cross-motions

for summary judgment.

Finally, Peter Turner, plaintiff in the

related action of Turner v. Dempster, C-82-

1117, moves to intervene in the instant ac-

tion. Although the Court recognizes that

Turnec has a substantial interest in the out-

B-6

come of the instant action, the Court

believes that because of the above ruling on

the motion for summary judgment, allowing

Turner to intervene would serve no useful

purpose at this time. Accordingly, the Court

denies Turner's motion to intervene in this

action.

IT IS SO ORDERED.

Dated: September 27, 1983.

ROBERT P. AGIITLAR

United States District Judge