# Opposition Brief — Sailors' Union of the Pacific, Seafarers International Union v. Secretary of Labor > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385017_1892%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 1985 - **Citation:** 471 U.S. 1004 ## Text | 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 i icc ceaheceereuvesendsssuvebave I Pt eclevisarhccesbecdsetsdss fs 0 00ksee | a cone kns does kee kb es C608 6405 00%0 2 ccc hs Sh eee bei rnees ene bs bees hc6ss be eeee 4 ee Lice seees chs kae anew Weessedeees 5 se cba eb Css beeches seh sede ob sbe es ove os v0 la 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385017_1892%3A2. Public record. Not legal advice.