Opposition Brief — Sailors' Union of the Pacific, Seafarers International Union v. Secretary of Labor

| Office-Suareme Court, US

FILED

No. 84-1003 MAR 12 1985

KIEXAMDER . STEVAG,

CLERK

Rie, tans Soon

OcTosBer TERM, 1984

~~)

SatLors’ UNION OF THE PACIFIC,

SEAFARERS INTERNATIONAL UNION OF

NortH America, AFL-CIO, PETITIONER

Vv.

RAYMOND J. DONOVAN, SECRETARY OF LABOR,

AND PETER TURNER

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE NINTH CIRCUIT

BRIEF FOR THE FEDERAL RESPONDENT

IN OPPOSITION

Rex E. Lee

Solicitor General

Department of Justice

Washington, D.C. 20530

(202) 633-2217

Francis X. LILLY

Solicitor of Labor

KAREN I. WARD

Associate Solicitor

Caroi A. De Deo

Counsel for Appellate Litigation

EpWarp D. SIEGER

Attorney

Department of Labor

Washington, D.C. 20210

QUESTIONS PRESENTED

1. Whether a union member’s complaint filed with the

Secretary of Labor protesting a union election satisfied the

timeliness requirement of 29 U.S.C. 482(a).

2. Whether petitioner’s rule denying to members with

less than three years of union membership the right to vote

and run for office violates 29 U.S.C. 481(e).

(I)

TABLE OF CONTENTS

Page

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TABLE OF AUTHORITIES

Cases:

Calhoon v. Harvey, 379 U.S. 134 ..........445- &

Donovan v. Local 126, International

Brotherhood of Electrical Workers,

Ee Sa 7

Donovan v. Local 831, International

Brotherhood of Painters, 116 L.R.R.M.

SE eat CRE ia x

Donovan v. Local 1235, International

Longshoremen’s Association, 715 F.2d

Pt ek shees esseTANeb ewes deeneees 6

Goldberg v. Marine Cooks & Stewards

Ss SE, ED vo ectccncvcsscccsese 8

Hodgson v. Local 6799, United

Seostworkears, GOS U.S. B53 cccccccccccceces 4,5

Hodgson vy. United Steelworkers,

sed asdnbaeeehveeteenesevees 7

Local 3489, United Steelworkers v. Usery,

ER 4,8

IV

Page

Cases—Continued:

Marshall v. Local 1010, International

Brotherhood of Painters, 103 L.R.R.M.

SE Sah Deaeeab bee Veda seen tdase seh seentes 8

Che ©. TU, Fe USE cnc ccccsccsovececs 8

Wirtz v. Hotel, Motel & Club Employees

Chalom, Loch G, FFt UB. GE! cccccccccccestis 8

Wirtz v. Local 153, Glass Bottle Blowers’

MOOT: FEE TI GRP ccnccccisccscsess 4,6

Wirtz v. National Maritime Union,

399 F.2d 544 aff’g, 284 F. Supp. 47 ........... 8

Statute and regulation:

Labor-Management Reporting and Disclosure

Act of 1959, 29 U.S.C. 401 et seq. :

$ 101 (aX(1), 29 U.S.C. 411(aXl) ........... 7

8 401i(e), 29 U.S.C. ABI) .nncccccccecs ee

$ 402(a), 29 U.S.C. 482(a) ............. ao

$ 402(aX(2), 29 U.S.C. 482(a2) ............ 3

29 C.F.R. :

EE okcéneb evs ve0neetesenteees 9

EE ceca cddunees beesanveenp ase 9

Section 452.37(a) ..... FOTe eT TTT Teer eT 8

EE c.ckncccereccscbcvivernsoeces 9

DOUG. vcs cvccceesesvesvecsssens 9

In the Supreme Court of the Hnited States

OCTOBER TERM, 1984

No. 84-1003

SAILORS’ UNION OF THE PACIFIC,

SEAFARERS INTERNATIONAL UNION OF

NorTH AMERICA, AFL-CIO, PETITIONER

Vv.

RAYMOND J. DONOVAN, SECRETARY OF LABOR,

AND PETER TURNER

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE NINTH CIRCUIT

BRIEF FOR THE FEDERAL RESPONDENT

IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. Al-A17) is

reported at 739 F.2d 1426. The district court’s orders of

September 27, 1983 (Pet. App. Bi-B6), and October 19,

1983 (App., infra, la-2a), are unreported.

JURISDICTION

The judgment of the court of appeals was entered on

August 7, 1984. A petition for rehearing was denied on

September 25, 1984. The petition for a writ of certiorari was

filed on December 21, 1984. The jurisdiction of this Court is

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

(1)

2

STATEMENT

1. Petitioner conducted an election of its officers by mail

ballot between December 1, 1981, and January 31, 1982

(Pet. App. A2). Members with less than three years of union

membership were ineligible to vote or run for office (ibid.).

Petitioner’s Balloting Committee announced the election

results at headquarters and branch membership meetings

of the union. Members at these meetings were asked to vote

on whether to approve the Committee’s report on the elec-

tion. The votes taken at various locations were tallied,

indicating membership approval of the election results, in

February 1982 (id. at A4).

The election results were reported in the West Coast

Sailor, the union’s newspaper, in late February 1982. C.R.

_ 111.1 On March 12, 1982, respondent Turner, a member in

good standing, wrote a letter to petitioner’s president pro-

testing the election. The president responded in a letter

dated April 2, 1982, that he had forwarded Turner’s letter to

the American Arbitration Association, which had con-

ducted the election for petitioner (C.R. 147). On July 6,

1982, having received no further communication from the

union, Turner filed a complaint with the Secretary of Labor

under Section 402(a) of the Labor-Management Reporting

and Disclosure Act of 1959 (LMRDA), 29 U.S.C. 482(a),

protesting the election results because both candidates and

voters had been limited to individuals with at least three

years’ membership in the union.

2. The Secretary of Labor, after investigation, found

probable cause to-delieve that the election had violated the

LMRDA. The Secretary filed suit in the United States

District Court for the Northern District of California, alleg-

ing that petitioner’s denial of voting and candidacy rights to

“C_R.” refers to the clerk’s record in the court of appeals.

3

union members unless they had at least three years of mem-

bership was unreasonable and hence violated Section 401(e)

of the Act, 29 U.S.C. 481(e).? The district court granted

summary judgment for the Secretary, finding that the three-

year membership requirements for voting and candidate

eligibility were unreasonable (Pet. App. B1-B6; App.., infra,

la-2a).

3. The court of appeals affirmed (Pet. App. Al-A17).

The court agreed with the district court that petitioner’s

voter and candidate eligibility rules were unreasonable and

violated 29 U.S.C. 481(e) (Pet. App. A6-A17). The court of

appeals also rejected petitioner’s contention that respond-

ent Turner’s July 6, 1982, complaint was not timely filed

with the Secretary under 29 U.S.C. 482(a)(2) (Pet. App.

A3-A6). That section provides that when an employee files

a complaint with the union and does not receive a final

decision within three months, he may file a complaint with

the Secretary within one more month. The court found that

petitioner had provided no guidance to its members on how

to contest election results, and that Turner’s March 12,

1982, letter to petitioner’s president was an attempt to

invoke what Turner reasonably perceived to be a union

remedy (id. at AS-A6). Therefore, the court reasoned, since

Turner had not received a final decision within three

months of March 12, 1982, he had one month thereafter

within which to file a complaint with the Secretary. The

complaint filed on July 5, 1982, was thus timely. /bid.

229 U.S.C. 481(e) provides:

In any election required by this section which is to be held by

secret ballot a reasonable opportunity shall be given for the nomi-

nation of candidates and every member in good standing shali be

eligible to be a candidate and to hold office (subject to section 504

of this title and to reasonable qualifications uniformly imposed)

and shall have the right to vote for or otherwise support the

candidate or candidates of his choice * * *.

4

ARGUMENT

The court of appeals correctly applied the provisions of

the LMRDA to the facts of this case in resolving the timeli-

ness and voter and candidate eligibility issues presented. Its

decision does not conflict with any decision of this Court or

of another court of appeals. Accordingly, review by this

Court is unwarranted.

1. Petitioner contends (Pet. 14-24) that Turner’s com-

plaint was not timely filed under 29 U.S.C. 482(a). Peti-

tioner argues that the only conceivable avenue for challeng-

ing an election is by objecting to the report of the Balloting

Committee; once the Committee’s report was approved and

filed on February 8, 1982, Turner’s one month period to file

with the Secretary should have begun to run. The court of

appeals correctly rejected this argument.

The basic objective of Title IV of the LMRDA is to

“guarantee free and democratic elections” (Local 3489, Uni-

ted Steelworkers v. Usery, 429 U.S. 305, 309 (1977)), while

avoiding unnecessary governmental intrusion into the

internal affairs of unions. Hodgson v. Local 6799, United

Steelworkers, 403 U.S. 333, 339 (1971); Wirtz v. Local i153,

Glass Bottle Blowers’ Association, 389 U.S. 463, 472 (1968).

Section 402(a) of the LMRDA reflects both of these con-

cerns by permitting union members to challenge an election

by filing a complaint, but only after first seeking internal

union review.

The court of appeals correctly found that respondent

Turner made a good faith effort to seek internal union

review. He was in a dilemma with respect to his desire to

protest the election; petitioner suggests that Turner should

have complained to the Secretary as soon as the Balloting

Committee report was approved, but if Turner neglected

available union remedies before filing his complaint with

the Secretary, a court could dismiss a subsequent action by

5

the Secretary because of Turner’s failure to exhaust union

remedies. See Hodgson v. Local 6799, United Steel-

workers, 403 U.S. 333 (1971). Turner read the union consti-

tution as providing a remedy through the president, and the

court of appeals agreed that this was a reasonable construc-

tion (Pet. App. A5-A6).? He contacted the president,

received a written response indicating that his letter had

been forwarded to the American Arbitration Association

(AAA), and then waited until the end of the three-month

period prescribed by Section 402(a) to give the president a

fuil chance to follow through on his response. When he did

not receive a final response within three months, Turner

filed a timely complaint with the Secretary. These actions

were fully consistent with the terms of Section 402(a) and its

purpose to allow union redress of members’ complaints

before action by the Secretary.

The court of appeals was plainly correct in rejecting

petitioner’s contention that Turner’s union remedy was to

challenge the report of the Balloting Committee (see Pet.

App. A4). Article XIII, Section 10, of the union constitu-

tion states that the Balloting Committee’s report shall be

final if approved by the membership and “shall conclusively

establish” that the election was proper. This provision gives

no notice to members thai the procedure for challenging an

election is to contest the committee report. Moreover, if this

were the correct avenue of complaint, it would be a proce-

dure that could result in final rejection without communica-

tion by the union of its action on the objection to the

3Article XV, Section 2(a) and (d), of petitioner’s constitution pro-

vides, respectively, that the president “shall represent the Union on all

occasions where representation is required and not otherwise provided

by the Constitution” and “shall bring before the regular and special

meetings such grievances as may have been reported to him by

members.” See Pet. App. AS.

6

member.‘ Since internal union remedies for election com-

plaints are supposed to be “responsible and responsive”

(Wirtz v. Local 153, Glass Bottle Blowers’ Association, 389

U.S. at 484), it would be unreasonable to construe the

Balloting Committee provision as setting forth the union

grievance procedure.

Moreover, petitioner’s conduct shows that it never

intended Article XIII, Section 10, to set forth the final

avenue of internal protest. Petitioner’s constitution pro-

vides a basis for believing that remedies were available

through the union president. When Turner invoked this

avenue, the union 2t a minimum was obliged to inform

Turner that it interpreted its constitution to mean that no

mechanism was available to protest the election internally

after the Balloting Committee report was accepted. See

Donovan vy. Local 1235, International Longshoremen’s

Association, 715 F.2d 70, 76 (3d Cir. 1983). Not only did

petitioner fail to do this, but its reply to Turner explaining

that his complaint was being forwarded to the AAA rea-

sonably indicated to Turner that an internal union remedy

was available and that his complaint was being considered.*

“Voting on whether to approve the Balloting Committee’s report

takes place at different locations, and petitioner’s constitution provides

no mechanism by which the results of this voting are to be communi-

cated to members. If petitioner were correct that exhaustion occurs

when the report is accepted, the one month period in which to file a

complaint with the Secretary could begin to run and expire before the

member knew whether or not the election had been approved.

5Petitioner’s suggestion (Pet. 21) that exhaustion occurred with the

president’s April 2, 1982, letter is mistaken. Since the AAA conducted

the challenged election, a complaining union member would reasonably

believe that AAA review was part of the president’s review of his

grievance, not that the letter indicated that union consideration of the

matter had ended. Moreover, this assertion by petitioner further evi-

dences the fact that it never intended Article XIII, Section 10, to

constitute the final internal remedy.

7

Petitioner’s allegation (Pet. 17-19) of a conflict with

Hodgson vy. United Steelworkers, 459 F.2d 348 (3d Cir.

1972), is without merit. In that case, the union repeatedly

told the protester “in no uncertain terms” (id. at 352) that

his union remedies had been exhausted. By contrast, peti-

tioner made no attempt to tell Turner that it regarded

Article XIII, Section 10, of its constitution as ending the

availability of union remedies with the report of the Ballot-

ing Committee. See Donovan v. Local 126, International

Brotherhood of Electrical Workers, 728 F.2d 610, 613 (3d

Cir. 1984) (Hodgson distinguished where union’s failure to

challenge member’s right to protest or timeliness of his

complaint indicated union’s acceptance of protest).® In

sum, there is no need to relitigate the factbound conclusion

of the court of appeals that petitioner failed to provide a

responsive procedure for members to contest election

results and that member Turner reasonably attempted to

invoke union remedies by complaining to the president

before filing suit with the Secretary.

2. Petitioner contends (Pet. 25-35) that its three-year

membership requirement for candidates and voters is a

“reasonable” rule within the meaning of 29 U.S.C. 411(a)(1)

and 481(e). The court of appeals correctly rejected this

contention.

*Petitioner’s assertion (Pet. 24) that the Department of Labor “for-

mally advised” it that @™B no internal remedies remained after the

February 8, 1982, filing of the Balloting Committee’s report and that

Turner should be charged with notice of this advice is incorrect. The

Department’s letter was not advice but rather a confirmation of what

the Department understood to be petitioner’s views (Letter from Inves-

tigator Curtis McMichael to John Jennings, Esq., Aug. 3, 1982). In any

event, because the letter was written after Turner filed his complaint

with the Department, it surely provides no basis for asserting that

Turner should have known to file his complaint earlier.

8

The LMRDA plainly provides that all union members

should be eligible to vote and serve in office, subject to

“reasonable qualifications.” 29 U.S.C. 481(e). As the court

of appeals found (Pet. App. A7-A8), this Court’s decisions

indicate that this exception is not to be construed expan-

sively. In both Local 3489, United Steelworkers v. Usery,

4>9 U.S. 305 (1977), and Wirtz v. Hotel, Motel & Club

Employees Union, Local 6, 391 U.S. 492 (1968), the Court

struck down as unreasonable certain restraints on such

eligibility. The Secretary of Labor’s regulations provide

that a two-year eligibility period will ordinarily be consi-

dered reasonable (29 C.F.R. 452.37(a)), and this interpreta-

tion is entitled to considerable deference. See Local 3489,

429 U.S. at 313; Udall v. Tallman, 380 U.S. 1, 16 (1965).’

Petitioner offers no persuasive reason why its situation is

so different from the norm that its three-year rule should be

reasonable. It may well be true, as petitioner asserts (Pet.

30-31), that experience is particularly impoitant with

respect to the competency of seamen, but that is no reason

’The cases relied upon by petitioner for support (see Pet. 25-28) are

inapposite. Calhoon v. Harvey, 379 U.S. 134(1964), decided a jurisdic-

tional question and plainly expressed no opinion on the validity of a

five-year membership rule. Similarly, in Wirtz v. National Maritime

Union, 399 F.2d 544 (2d Cir.), aff'g 284 F. Supp. 47 (S.D. N.Y. 1968),

the court of appeals affirmed the district court’s ruling that a prior office

holding requirement was unlawful and did not consider the lower

court’s approval of a five-year membership rule. The district court

decision in that case is distinguishable on its facts (see Pet. App.

A12-A13), and, in any event, like Goldberg v. Marine Cooks & Ste-

wards Union, 204 F. Supp. 844 (N.D. Cal. 1962), is of questionable

precedential vaiue because it antedates recent pronouncements by this

Court on the LMRDA (see Pet. App. A16). More recent district court

decisions are fully consistent with the decision below in striking down

three-year membership rules. See Donovan v. Local 831, International

Brotherhood of Painters, 116 L.R.R.M. 2336 (C.D. Cal. 1982); Mar-

shall vy. Local 1010, International Brotherhood of Painters, 103

L.R.R.M. 3106 (M.D. Fla. 1980).

9

to restrict the eligibility of voters and candidates for union

office. The Coast Guard may take direct action to ensure

the competence of seamen (see Pet. 31-33); there is no need

to address this issue indirectly in a way that undermines the

purposes of the LMRDA. See Pet. App. A15-A16. Thus,

petitioner has not carried its burden of showing that its

restriction on candidate eligibility is “reasonable.” A forti-

ori, there is no basis for upholding the restriction on voter

eligibility. See 29 C.F.R. 452.88 (one-year membership

requirement is ordinarily reasonable as voter qualification).®

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

Rex E. Lee

Solicitor General

FRANCIS X. LILLY

Solicitor of Labor

KAREN I. WARD

Associate Solicitor

CaroL A. De Deo

Counsel for Appellate Litigation

EDWARD D. SIEGER

Attorney

Department of Labor

MARCH 1985

*The regulation that allows a union to condition the right to vote

“upon completion of a bona fide program of apprenticeship” (29 C.F.R.

452.89) does not aid petitioner (see Pet. 34). Whether or not an appren-

tice program could in some circumstances justify a waiting period of

more than one year, petitioner has not shown that it has auy such bona

fide apprenticeship program, either through its own rules or through

compliance with Coast Guard regulations. See 29 C.F.R. 29.2(f), 29.5.

DO}J-1985-03

APPENDIX

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

RAYMOND J. DONOVAN, Secretary )

of Labor, United States )

Department of Labor, ) NO. C-82-5569

) RPA

Plaintiff, )

)

vs. ) ORDER

)

SAILORS’ UNION OF THE )

PACIFIC, SEAFARERS )

INTERNATIONAL UNION )

OF NORTH AMERICA, )

AFL-CIO, )

)

Defendant. )

)

Through an oversight, the Court omitted part of its

intended ruling from the Order issued in this case on Sep-

tember 27, 1983. One of the central issues in the cross-

motions for summary judgment was the reasonableness of

defendant’s three-year candidate eligibility rule. The Court

inadvertantly omitted its ruling on this question from its

September 27, 1983, Order.

The Court finds that its resolution of the present question

is heavily influenced by the findings of fact and conclusions

of law made by this Court in its August 18, 1983, Order in

Turner v. Dempster, C-82-1117 RPA, and by its earlier

ruling in the instant case. The Court believes that the three

Orders read together evince a consistent view of the facts

and legal issues raised in the controversies concerning the

(la)

2a

election rules of the Sailors’ Union of the Pacific. Thus, to

the extent applicable, the Court incorporates into this

Order the findings of fact and discussions, observations,

and conclusions of law contained in those earlier Orders.

The Court finds and holds that the three-year candidate

eligibility rule employed by the Sailors’ Union of the Pacific

is unreasonably long and therefore violative of the reason-

ableness requirement of 29 U.S.C. § 481(e).

Accordingly, and for good cause appearing, the Court

hereby grants plaintiffs motion for summary judgment and

denies defendant’s motion for summary judgment on the

issue of the reasonableness of the three-year candidate elig-

ibility rule.

IT IS SO ORDERED.

DATED: October 19, 1983.

ROBERT P. AGUILAR

United States District Judge