Petition for Writ of Certiorari — Dempster v. Turner

4 { Office-Supreme Court, Ve

84-1739 -*

No. A-482 JAN 9 196

ALEXANDER CL STEVAS,

In the Supreme Court J

United States

Octoser TERM, 1984

Pav. DEMPSTER AND THE

Sartors’ UNION OF THE PaciFic,

Petitioners,

VS.

Peter TURNER,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTE CIRCUIT

Joun F. Hennine, Jp.

JoHN Pau JENNINGS

Hewnninc, WatsH & RITCHIE

100 Bush Street, Suite 440

San Francisco, CA 94104

(415) 981-4400

Attorneys for Petittoners

Paul Dempster and the

Sadors’ Union of the

Pacific

BOWNE OF SAN FRANCISCO, INC. © 190 NINTH BT. © S.F., CA 84103 © (415) 564-2300

QUESTIONS REPRESENTED

1. Whether or not the Ninth Circuit’s decision is in con-

flict with this Court’s opinion in Calhoon rv. Harvey, 379

U.S. 1384 (1974);

2. Whether or not the Ninth Circuit’s opinion validly

rejected the “majority rule” standard for a dues increase

under the Labor Management Reporting and Disclosure

Act;

3. Whether or not the District Court was empowered to

grant classwide monetary relief without prior class certi-

fication pursuant to the provisions of FRCP 23(c).

il

TABLE OF CONTENTS

Page

ee eee ane TO In i

CI CID ererecisisiackiticcesnitvaienpstinsennnimneaaaaamates 1

POND wacdicdescscucccclaeneannnan siatnabailambsciilblaiice 2

Statutory provisions involved .........................---csccssscseees 2

wentemnent 66 the GUD csi iiidkicencinineanias +

Reasons for granting the writ —....2..0..22...2.-2:.2.eeseeeeeeeeees 5

I

This Court’s opinion in Calhoon v. Harvey requires a

showing of discriminatory treatment as a jurisdic-

tional prerequisite to a Title I action contrary to the

Court of Appeal’s Opinion below ............0..20...2..22..------ 5

A. This Court’s decision in Calhoon v. Harvey pre-

vents a finding herein of unequal treatment to

support federal court jurisdiction under Title I

OE Geto Ti acnccisciniieciisdesictaetetinieieae aca, 5

B. Whether the SUP’s six-year seatime rule was

reasonable is a “question separate and distinct”

from whether a right under Title I of the

LsETA Wee VHDNIIE ciccicnccciceeninatnnn 9

II

The SUP’s dues increase was properly adopted by a

“majority vote” of the membership within the mean-

Bay OE TO LsREBCOPER cscciccecissssiietanieeanninn 10

Ill

The District Court’s failure to certify the action below

foreclosed entry of its Order of September 27, 1983,

granting classwide relief by the return of all dues

monies collected pursuant to the challenged referen-

CE sectsicccantss RENT I nk Sah ORS iN ORES 13

ili

APPENDIX

Index

Document Page

Order of the Ninth Circuit dated October 1, 1984,

ESSE Oe Oa OR A-1

Order of the Ninth Circuit dated October 1, 1984,

denying Petition for Rehearing ....................20.00.... 4 A-2

Opinion of the Ninth Circuit dated October 1, 1984 A-3

Order of the United States District Court dated

September 27, 1983, requiring repayment of dues A-7

Order and Opinion of the United States District

COMES Gated Aeemet TG, 19GS nnn. cceecccecneence. i A-9

iv

TABLE OF AUTHORITIES CITED

Cases

Page

Calhoon v. Harvey, 379 U.S. 134, 13 L.Ed.2d 190, 85

i a | naa en TE Om OT i, 5, 6, 8, 9, 10, 11

Canez v. Guerrero, 707 F.2d 443 (9th Cir. Ariz. 1983)... 8

Del Costello v. Teamsters, USB. «mun 1G S.Ct.

ye Be LF | FE). | RRL ern 12

Depew v. «{dmiston, 386 F.2d 710 (3rd Cir. Pa. 1967) 8

Donovan v. Local Union No. 70, International Brother-

hood of Teanisters, 661 F.2d 1199 (9th Cir. Cal. 1981)

TE ee ae TE FET MA we ee RAW et oe SWS! 10, 11

Gravenstein v. Campion, 540 F. Supp. (D.C. Alaska

BPE <ccsiiactn dusaantbascaacaisaaipnadaiinis daadaaaaadeie 13

In re Four Seasons Securities Laws Litigation, 502

De GR Ce Cir. CR. BERD once csticcenicacisecsescotenencnnionns i4

In re Nissan Motor Corp. Antitrust Litigation, 552

> BS Bt Eke, SE | | Ream ae NRE aeErel 14

Kapua v. Yamamoto, 662 F.2d 449 (9th Cir. 1980) ........ 8

Landry v. Sabine Independent Seamen’s Ass’n, 623

7a (ee Ce Te Te 13

Marshall v. Steelworkers, Local 12447, 591 F.2d 199

Se RU Bs I nk a ee 10

MeNail v. Amalgamated Meat Cutters, 549 F.2d 540

Ce Seis Hs CRIED Snrcccaniieecieneconnnecciepcnaboneocieiesanniietinn 8

O’Doherty v. Brotherhood of Railway Airline and

Steamship Clerks, 618 F.2d 484 (8th Cir. Neb. 1980) 8

Parish v. Legion, 450 F.2d 821 (9th Cir. Cal. 1971)...... 8

Rollison v. Hotel, Motel, Restaurant, ete., 677 F.2d 741

I es A, I as cihccenecdecta sade cries cecabeobonrcnptoinnidas 8

-

TaBLE OF AUTHORITIES CITED

CasEs

Page

Thompson v. Union of Flight Attendants, 109 LRRM

Se ers: I TID cesraceaiseaSdlatclnstnsenccetomccccenccceneect 10

United Parcel Service Ine. v. Mitchell, 451 U.S. 56

ft RE Rae Ai ne tamer ecadrara cig epee aECR RE NT CoS 12

Wingate v. Teamsters, Local 107, 51 CCH Labor Cases

£ REEL SA RDA Maral ead RA ere gee ts 12

Wirtz v. Hotel, Motel & Club Employees Union,

Local 6, 391 U.S. 492, 88 S.CT. 1743; 201 L.Ed.2d

iar LE OU er hinds al Mis WP rt I 10

Statutes

BF Beate SMI sicicincrcnmnniataiaitiile bess ieee Rees 11

BF iy IEE wiicickeiscconioutenilchetcshciepteensncimeoneninlen 2, 4, 5, 10, 12

Be Ns IE nets ecninesindchleniabiie ee ee 3

BE TL ED MINN EAL a te esol 5

BP Ce OEE wainciscc Rides 3, 10, 11

Regulations

a CF ee CEE simian cebu 10

OPO GO vci cee 10

is

a)

. $

Cran _

an) . a4 Py 7 2 ~S5) 7

oul, we panel ——

No. A-482

In the Supreme Court

OF THE

United States

OctToRER TERM, 1984

Paut DEMPSTER AND THE

Sartors’ UNION OF THE PAciIFIc,

Petitioners,

vs.

Peter TvRNER,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

Petitioners Paul Dempster and the Sailors’ Union of the

Pacific respectfully pray that a writ of certiorari issue to

review the opinion of the United “tates Court of Appeals

for the Ninth Circuit entered in this proceeding on October

1, 1984.

OPINIONS BELOW

The Court of Appeals initially entered an unpublished

Memorandum Decision in this matter on August 7, 1984,

and a timely Petition for Rehearing was filed by Petitioners

on August 20, 1984, which Petition was denied by the Court

of Appeals on October 1, 1984, and on which date the Court

designated the Memorandum Decision an Opinion effective

said date. This Opinion has not yet been reported.

The Ninth Cireuit’s Opinion of October 1, 1984, affirms,

inter alia, the Order and Opinion of the United States Dis-

trict Court for the Northern District of California entered

on August 18, 1983, and its Order of September 27, 1983,

requiring repayment of membership dues. The District

2

Court’s Opinion is reported at 569 F.Supp. 683 (N.B. Cal.

1983).

Copies of the foregoing decisions and orders are attached

hereto as Appendix A.

JURISDICTION

This Court’s jurisdiction is invoked under Title 28,

United ‘tates Code, Section 1254(1).

STATUTORY PROVISIONS INVOLVED

The following statutory provisions w:* primarily in-

volved in the disposition of this matter:

Title 28 U.S.C. Rule 23(c)—Class Actions

“(¢) Determination by Order Whether Class Action to be

Maintained; Notice; Judgment; Actions Conducted Par-

tially as Class Actions.

(1) As soon as practicable after the commencement of an

action brought as a class action, the court shall determine

by order whether it is to be so maintained. An order under

this subdivision may be conditional, and may be altered or

amended before the decision on the merits.”

Title 29 U.S.C. § 411 (a)(1), (3)(A)—BIill of Rights

“(a)(1) Equal rights.—Every member of a labor organi-

zation shall have equal rights and privileges within such

organization to nominate candidates, to vote in elections or

referendums of the labor organization, to attend member-

ship meetings, and to participate in the deliberations and

voting upon the business of such meetings, subject to rea-

sonable rules and regulations in such organization's consti-

tution and bylaws.”

o a o

“(3) Dues, initiation fees, and assessments.—Except in

the case of a federation of national or international labor

organizations the rates of dues and initiation fees payable

by members of any labor organization in effect on Sep-

3

tember 14, 1959 shall not be increased, and no general or

special assessment shall be levied upon such members,

except—

(A) in the case of a local labor organization, (i) by ma-

jority vote by secret ballot of the members in good standing

voting at a general or special membership meeting, after

reasonable notice of the intention to vote upon such ques-

tion, or (ii) by majority vote of the members in good stand-

ing voting in a membership referendum conducted by secret

ballot; or....”

Titie 29 U.S.C. § 412—Civil action for infringement of

rights ;

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 (including injunctions) as may

be appropriate. Any such action against a labor organiza-

tion 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.

Title 29 U.S.C. § 482(¢)—Declaration of Void Election

“(c) If, upon a preponderance of the evidence after a

trial upon the merits, the court finds—

(1) that an election has not been held within the time

prescribed by section 481 of this title, or

(2) that the violation of section 481 of this title may

have affected the outcome of an election,

the court shall declare the election, if any, to be void and

direct the conduct of a new election under supervision of

the Secretary and, so far as lawful and practicable, in con-

formity with the constitution and bylaws of the labor

organization...”

4

STATEMENT OF THE CASE

As reflected by the appended Opinions of the Ninth Cir-

euit and the District Court herein, this petition arises from

the conduct of a referendum vote by Petitioner Sailors’

Union of the Pacifie (SUP) during the period of April 15-

June 15, 1981, to inter alia, raise the union’s quarterly dues

from $30.00 per quarter to $50.00 per quarter. Eligibility to

vote in this election was limited to “full book” members who

had attained this status by service at sea for a period of six

years.

As reflected by the record below, a majority of the SUP’s

total membership voted for the dues increase, irrespective

of the fact that only “full book” members were allowed to

vote in the referendum. This conclusion is derived from the

uncontested fact that at the time of the April-June 1981

Referendum, Petitioner SUP’s membership rolls reflected

673 “permit” members who were excluded from participat-

ing in the challenged referendum. (CR 131-132). When this

number is added to the negative votes lodged against the

referendum dues increase, the total would be 1,036 “no”

votes (673 “permits” + 363 “full book” members) as against

1,548 “yes” votes, resulting in a 59% approval of the dues

increase on the assumption that the excluded “permit”

membership would have voted against the dues increase.

Respondent Turner’s complaint contested the dues in-

crease and the rule that limited participation in the dues

referendum to members with six years seatime.

The District Court’s Decision of August 18, 1983, asserted

jurisdiction under LMRDA Section 101(a)(1), 29 U.S.C.

§ 411(a)(1), and invalidated the dues referendum election

on the basis that the six vear seatime rule was unreason-

able, without addressing the fact that a majority of the

SUP’s membership had approved the dues increase. Pursu-

ant to this Decision, the District Court entered an Order on

September 27, 1983, requiring class relief in the nature of a

5)

return of all dues monies collected pursuant to the referen-

dum. No class certification had previously been made by the

District Court pursuant to FRCP 23(c).

In affirming the District Court’s Decision and Order, the

Ninth Circuit held that the District Court possessed sub-

ject matter jurisdiction pursuant to 29 U.S.C. § 411(a) (1)

and specifically found that the fact that the majority of the

SUP’s membership had approved the dues increase was

only relevant in a Title IV case, 29 U.S.C. § 481, and “has

no application” in a Title I case, 29 U.S.C. § 411(a) (1).

A-6.

In support of these conclusions, the Ninth Cireuit further

held that thie Court’s holding in Calhoon v. Harvey, 379

U.S. 134 (1964), was limited to Title IV actions and “does

not, as the union contends, stand for the proposition that a

member must allege the uneven application of union rules

to state a claim under 29 U.S.C. § 411(a)(1).” A-4.

REASONS FOR GRANTING THE WRIT

I

THIS COURT’S ‘ PINION IN CALHOON v. HARVEY

REQUIRES A SHOWING OF DISCRIMINATORY

TREATMENT AS A JURISDICTIONAL PREREQUI-

SITE TO A TITLE I ACTION CONTRARY TO THE

COURT OF APPEAL’S OPINION BELOW

A. This Court’s Decision in Calhoon v. Harvey Prevents a

Finding Herein of Unequal Treatment to Support Fed-

eral Court Jurisdiction under Title I of the LMRDA

Given that Respondent’s Complaint seeks to protect and

secure union members’ rights “to vote, run for office and

otherwise participate in the affairs of the SUP,” subject

matter jurisdiction under Title I of the LMRDA was denied

the District Court under this Court’s ruling in Calhoon

v. Harvey, 379 U.S. 134, 85 S.Ct. 292, 13 L.Fd.2d 190

(1964).

—_ ——

6

In Calhoon v. Harvey, this Court was confronted with

a substantially identical factual situation involving an-

other maritime union, the National Marine Engineer’s

~~ Beneficial Association, representing licensed engineers. The

opinion aptly describes the case presented by the union

members therein:

The respondents, three members of District No. 1,

National Marine Engineers’ Beneficial Association,

filed a complaint in Federal District Court against the

union, its president and its secretary-treasurer, alleg-

ing that certain provisions of the union’s bylaws and

national constitution violated the Act in that they in-

fringed “the right of members and defendant District

No. 1, NMEBA, to nominate candidates in elections of

defendant, which right is guaranteed to each member

of defendant, and to each member of defendant, and to

each plaintiff, by Section 101(a)(1) of the LMRDA.

...” It was alleged that § 102 of Title I of the Act gave

the District Court jurisdiction to adjudicate the contro-

versy. The union bylaws complained of deprived a

member of the right to nominate anyone for office but

himself. The national constitution in turn provided that

no member could be eligible for nomination or election

to a full-time elective office unless he had been o¢ mem-

ber of the national union for five years and had served

180 days or more of seatime in each of two of the pre-

ceding three years on vessels covered by collective bar-

gaining agreements with the national or its subsidiary

bodies. On the basis of these allegations respondents

asked that the union be enjoined from preparing for or

conducting any election until it revised its system of

elections . . .” (Emphasis supplied.) Jbid. at 135-136.

This Court went on to discuss the jurisdictional parameters

of Title I finding that:

7

All that § 101(a)(1) guarantees is that:

“every member of a labor organization shall have

equal rights and privileges . . . to nominate candi-

dates, to vote in elections or referendums of the labor

organization .. . and to participate in the delibera-

tions and voting ... subject to reasonable rules and

regulations in such organization’s constitution and

bylaws.”

Plainly, this is no more than a command that mem-

bers and classes of members shall not be discrim-

inated againsi in their right to nominate and vote.

And Congress carefully prescribed that even this

right against discrimination is “subject to reason-

able rules and regulations” by the union. The com-

plaining union members here have not been discrim-

inated against in any way and have been denied no

privilege or right to vote or nominate which the union

has granted to others. They have indeed taken full

advantage of the uniform rule limiting nominations

by nominating themselves for office. Jt is true that

they were denicd their request to be candidates, but

that denial was not a discrimination against their

right to nominate, since the same qualifications were

required equally of all members. Whether the eligi-

bility requirements set by the union's constitution

and bylaws were reasonable and valid is a question

separate and distinct from whether the right to nom-

inate on an equal basis given by § 101(a)(1) was vio-

lated. (Emphasis supplied. )

Without setting out the lengthy legislative history

which preceded the passage of this measure, it is

sufficient to say that we are satisfied that the act

itself shows clearly by its structure and language

that the disputes here, basically relating as they do

8

to eligibility of candidates for office, fall squarely

within Title IV of the Act and are to be resolved by

the administrative and judicial procedures set out

in that Title.

[bid at 138-140.

Indeed, prior to the entry of its Opinion in the instant

ease, the Ninth Circuit’s prior decisions likewise required

that for a Title I action there must be a showing of dis-

criminatory treatment, the denial of a privilege or right

granted to other similarly situated members. See: Canez v.

Guerrero, 707 F.2d 443, 445 (9th Cir. Ariz. 1983); Rollison

vu. Hotel, Motel, Restaurant, Etc., 677 F.2d 741, 745 (9th Cir.

Cal. 1982) ; Kapua v. Yamomoto, 622 F.2d 449, 453 (9th Cir.

Cal. 1980) ; Parish v. Legion, 450 F.2d 821, 838 (9th Cir. Cal.

1971); also: O’Doherty v. Brotherhood of Railway, Airline

and Steamship Clerks, 618 F.2d 484, 486 (Sth Cir. Neb.

1980) [‘the critical question is whether or not a union mem-

ber is discriminated against in one of the rights guaranteed

by Title I.” /bid. at 486 citing McNail v. Amalgamated Meat

Cutters, 549 F.2d 540 (Sth Cir. Neb. 1977)]; Depew v.

Edmiston, 386 F.2d 710, 714-715 (3rd Cir. Pa. 1967).

In this instant case there is no dispute that “the same

(six year seatime) qualification was required equally of all

members” Calhoon, supra at pg. 15. Indeed, the District

Court found that the SUP’s division of voting rights be-

tween the members was not discriminatory A-18, 19.

Accordingly, to the extent that the Ninth Circuit found

that: (1) Calhoon does not, as the union contends, stand

for the proposition that a member must allege the uneven

application of union rules to state a claim under 29 U.S.C.

§ 411(a)(1):” and (2) that Calhoon only “concerned can-

didate eligibility qualifications,” a subject governed by

Title IV [A-45], the Court of Appeals decision is in con-

flict with Calhoon. And, for this reason, certiorari should

issue to correct the Opinion below.

9

B. Whether the SUP’s Six Yar Seatime Rule Was Rea-

sonable Is “A Question Separate and Distinct” from

Whether a Right under Title I of the LMRDA Was

Violated.

While the Ninth Cirecuit’s Opinion assumed there was no

requirement to show discriminatory or unequal treatment

in the application of the SUP’s six year seatime rule, this

void cannot be filled by a finding that the six year rule is

unreasonable as is implied by the Ninth Circuit’s Opinion

and specifically stated in the District Court’s. A-19. This

argument was made and rejected by this Court in Calhoon.

Plaintiffs in Calhoon argued that since they had not met

the five year membership—three year seatime rule pre-

scribed by the Marine Engineers “for election to a full

time office,” they were being discriminated against. Calhoon,

supra at pg. 136. But this Court countered by observing

that “whether the eligibility requirements set by the union’s

constitution and bylaws were reasonable is a question sepa-

rate and distinct from whether the right to (vote) on an

equal basis given by Section 101(a)(1) was violated.”

Calhoon, supra at pg. 13. Thus, if “‘the same qualifications

are required equally of all members,” then, this Court held,

questions of the reasonableness of eligibility requirements,

“basically relating as they do to eligibility of candidates for

office, fall squarely within Title IV of the Act and are to

be resolved by the administrative and judicial procedures

set out in that Title.” Calhoon, supra at pg. 141.

Petitioner SUP adopts this Court’s argument in this

respect and submits that the reasonableness of the six year

seatime rule is irrelevant since the District Court found no

inequality in “that the fact that the Sailors’ Union of the

Pacifie divided the right to vote amongst its members does

not... violate the equal rights provisions of Title I.” A-19.

10

Petitioner also submits that to the extent that the eligibil-

ity rules for voting in referendum and candidate elections

are one and the same under the SUP’s constitution, given

the absence of the discrimination required by Calhoon, the

resolution of respondent’s claim was properly dealt with

in his subsequent action under Title IV. See: Donovan v. .

Sailors’ Union of the Pacific, A484, herein.

I

THE SUP’S DUES INCREASE WAS PROPERLY

ADOPTED BY A “MAJORITY VOTE” OF THE MEM-

BERSHIP WITHIN THE MEANING OF THE LMRDA

The controlling provisions of Title I, LMRDA Section

101(a) (3), 29 U.S.C. § 411(a) (3), provide in pertinent part

that “the rates of dues and fees payable by members of any

labor organization . . . shall not be increased ... except...

by majority vote of the members in good standing voting in

a membership referendum conducted by secret ballot.”

(Emphasis supplied.)

Title IV, LMRDA Section 402(c)(2), 29 U.S.C. § 482

(c)(2), provides that “violations of the election provisions

of the Act which occurred in the conduct of elections...

are not grounds for setting aside an election unless they

have affected the outcome.” (Emphasis supplied.) 29 U.S.C.

§ 482(c) (2); 29 C.F.R. § 452. See: Wirtz v. Hotel, Motel &

Club Employees Union, Local 6, 391 U.S. 492, 88 S.Ct. 1743;

201 L.Ed.2d 763 (1968); Marshall v. Steelworkers, Local

12447, 591 F.2d 199, (3rd Cir. Pa. 1978); Thompson v.

Union of Flight Attendants, 109 LRRM 2870 (C.D. 1982).

1A like standard is employed by the National Labor Relations

Board pursuant to election challenges under the Labor Management

Relations Act, 29 U.S.C., §§ 151, et seq., whereunder election results

will not be set aside unless “the challenged ballots are sufficient in

number to affect the results of the election.” 29 C.F.R. § 102.69(b).

11

While the District Court’s Opinion failed to address the

fact that the dues increase was approved by a majority of

the SUP’s membership, the Court of Appeals found that

this fact was irrelevant since the language of Section 402,

above quoted, justifying the invalidation of an election only

where the “violations . . . affected the outcome,” was not

applicable to elections under Section 101, the Court of Ap-

peals stating that “29 U.S.C. § 482(c) applies only when a

party has challenged an election under 29 U.S.C. § 481,”

citing Donovan v. Local Union 70, International Brother-

hood of Teamsters, 661 F.2d 1199, 1202 (9th Cir. Cal. 1981).

Notwithstanding, since the dues increase was approved by

a “majority vote” under Section 401, Petitioner SUP sub-

mits that the increase cannot be invalidated, irrespective of

the eligibility rules underlying the referendum, since the

question of the reasonableness of the eligibility rule “is a

question separate and distinct” from whether the majority

of the SUP’s membership approved the dues increase. Cal-

hoon v. Harvey, supra at 136. Put more plainly, it’s the dif-

ference between merely amending the union’s constitution,

on the one hand, and paying back several hundred thousand

dollars in back dues as well as amending the union’s consti-

tution, on the other.

This dilemma is avoidable by adopting for purposes of

a Title I election the same guideline that exists under Title

IV and the National Labor Relations Act, viz. that only

violations that “affected the outcome” of the challenged

election will serve to overturn the election. And, this ap-

proach is not diluted by the Court of Appeals’ citation to

its prior decision in Donovan v. Local 70, International

Brotherhood of Teamsters, supra, since the decision does

not support its assertion that the “outcome” standard of

Title IV is inapplicable to Title I elections. It merely con-

firms that such is the standard under Title IV.

12

As Petitioners argued to the Court of Appeals, the only

case to deal with the issue found that the standard applied

equally under both Titles. In Wingate v. Teamsters, Local

107, 51 CCH Labor Cases § 19,643 (D.C. Del. 1964), the Dis-

trict Court in a Title I referendum election found that “since

petitioners have failed to establish any violation of their

equal rights and privileges such as would affect the outcome

of the referendum here considered, it is the Court’s con-

clusion that judgment must be entered for defendant and

against petitioners.” (Emphasis supplied.) /bid. at pg. 33,

574.

Petitioner submits that the Wingate rule is the appropri-

ate approach since it responds to the “need for uniformity”

of procedures in the field of labor relations by adopting a

federal standard to apply in all election challenge cases.

See: United Parcel Service Inc. v. Mitchell, 451 U.S. 56,

70-71 (1981), as quoted in Del Costello vr. Teamsters,

US. , 103 S.Ct. 2281, 2294; 76 L.Ed.2d 476 (1983) ; also:

Garner v. Teamsters, 346 U.S. 485, 490 (1953) [need for

“centralized administration of specially designed proced-

ures” reflected in federal labor laws}.

At all events, despite petitioner’s exclusion of members

with less than six years seatime from voting in the dues

referendum, a “majority vote” was secured for the approval

of the increase consistent with 29 U.S.C. 4 411(a)(3); and

whether this majority approval should be overturned, with-

out a showing that the eligibility rules “affected the out-

come,” presents an important question of law justifying the

grant of a writ of certiorari herein.

13

III

THE DISTRICT COURT'S FAILURE TO CERTIFY THE

ACTION BELOW FORECLOSED ENTRY OF ITS OR-

DER OF SEPTEMBER 27, 1983, GRANTING CLASS.

WIDE RELIEF BY THE RETURN OF ALL DUES

‘MONIES COLLECTED PURSUANT TO THE CHAL-

LENGED REFERENDUM

By its amended Notice of Appeal of November 30, 1983,

Petitioner SUP placed at issue the District Court’s Order

of September 27, 1983, requiring the repayment of all dues

monies collected pursuant to the challenged 1981 refer-

endum election. However, given the fact that the underlying

action was not brought as a class action pursuant to the pro-

visions of Title I of the LMRDA, the District Court was

foreclosed from granting an “award of monetary relief to

the hypothetical class” in the form of a total refund of dues

to the SUP’s membership. FRCP 23(c); Landry v. Sabine

Independent Seamen’s Ass'n, 623 F.2d 347, 350-351 (5th

Cir. Tex. 1980) [certification a precondition to refund];

Gravenstein v. Campion, 540 F.Supp. 7, 11 (D.C. Alaska

1981) [Title I action requires class certification].

The appropriate relief forthcoming under the circum-

stances, therefore, should have been limited to a refund of

the respondent Turner’s dues. Landry v. Sabine Indepen-

dent Seamen’s Ass'n, supra, at pg. 351.

In raising this issue, petitioner is not unmindful that the

issue was not raised before the District Court. However, it

should be obvious that where, as herein, the issue is pre-

empted by the filing of a cross-motion for summary judg-

ment early on in the action, prior to the filing of a motion

for certification under FRCP 23, the responsibility must

fall upon the District Court to certify the action, if appro-

priate, prior to entry of class relief; or, alternatively, with-

hold a class remedy until the moving party seeks and is

14

granted such certification. Absent such action by a District

Court, such orders must be deemed unenforceable without

further action by the defendants. Landry v. Sabine Inde-

pendent Seamen's Ass'n, supra.’

More to the point, to allow the Order of September 27,

1984, to stand without further comment by the Court of

Appeals, or remand to the District Court for certification

pursuant to the provisions of FRCP 23, denies Petitioner

SUP its right to due process as a prerequisite to the depri-

vation of its dues funds. See: In re Nissan Motor Corp.

Antitrust Litigation, 552 F.2d 1088 (5th Cir. Fla. 1977) ; In

re Four Seasons Securities Laws Litigation, 502 F.2d 834

(10th Cir. Okl. 1974), cert. denied, 419 U.S. 1034.

Since the foregoing, therefore, presents both a question

with due process ramifications as well as an important ques-

tion of procedure under FRCP 23, a grant of certiorari to

review the judgment below is justified.

?The absence of a class certification in the instant matter was

raised in the Court of Appeals by Petitioner’s Motion for Stay dated

November 5, 1984.

~ et) a — na tn

15

CONCLUSION

For the foregoing reasons, therefore, a writ of certiorari

should issue to review the opinion of the Ninth Circuit

Court of Appeals.

Respectfully submitted,

Hennine, WatsH & RitcHie

Joun F. Hennina, Jr.

Joun Pau Jennincs

Attorneys for Petitioners

Paul Dempster and the

Sailors’ Union of the

Pacific

(Appendices follow)

A-1

Appendix A

United States Court of Appeals

For the Ninth Circuit

Nos. 83-2407, 84-1703

DC No. CV 82-1117-RPA

Northern California

Peter Turner,

Plaintiff-Appellee,

Vs.

Paul Dempster and Sailor’s Union of the Pacific,

Defendants-Appellants.

[Filed Oct. 1, 1984]

ORDER

Before: HUG, TANG and FARRIS, Circuit Judges.

The memorandum decision filed August 6, 1984 is hereby

redesignated an opinion, authored by Judge Farris.

A-2

Appendix B

United States Court of Appeals

For the Ninth Circuit

Peter Turner,

Plaintiff. Appellee,

sis CA No. 83-2407

, DC No.

Paul Dempster, President and CV 82-1117-RPA

individually, and Sailors’ Union

of the Pacific, an unincorporated

association,

Defendants-Appellants.

Peter Turner,

Plaintiff-Appellee, CA No. 84-1703

. DC No.

vs. ;

; C-82-1117-RPA

Paul Dempster and Sailors’ Union (N. California )

of the Pacific,

Defendants-Appellants.

[Filed Oct. 1/ 1984]

ORDER

Before: HUG, TANG and FARRIS, Circuit Judges.

The petition for rehearing filed August 20, 1984 is denied.

~_—_

A-3

Appendix C

United States Court of Appeals

For the Ninth Circuit

Peter Turner,

Plaintiff-Appellee,

vs. CA No. 83-2407

. DC No.

Paul Dempster, President and CV 82-1117-RPA

individually, and Sailors’ Union

of the Pacific, an unincorporated

association,

Defendants-Appellants.

Peter Turner,

Plaintiff-Appellee,

vs. CA No. 84-1703

DC No.

ott oy Tins C-82-1117-RPA

Paul Dempster and Sailors Union (N. Californie)

of the Pacific,

Defendants-Appellants.

[Filed Oct. 1, 1984]

OPINION

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, TANG and FARRIS, Circuit Judges.

FARRIS, Circuit Judge:

The union constitution provided that only “full book”

members could vote on all union-related matters. Members

attain full book status by working on a ship at sea for six

years. Members who have not attained full book status may

A-4

exercise only limited rights within the union. In a 1981 con-

stitutional referendum, full book members voted to raise

quarterly dues from $30 to $50 and to reduce the time re-

quired to attain full book status from six years service to

three years membership. Turner contested the dues increase

and the rule which allowed only those members with six

years experience to vote in the constitutional referendum.

The district court held that the six-year requirement was

unreasonable and invalidated the dues increase. Turner v.

Dempster, 569 F.Supp. 683 (N.D. Cal. 1983). We affirm.

A preliminary issue is whether Turner has stated a

claim under §101(a)(1) of the Labor-Management Re-

porting and Disclosure Act of 1959. 29 U.S.C. § 411(a)(1).

This section provides that every member of a labor organ-

ization “shall have equal rights and privileges within such

organization . .. to vote in elections or referendums of

the labor organization. .. .” A complaining union member

states a claim if the member asserts a denial of a voting

right given to another member or class of members.

Stelling v. International Brotherhood of Electrical Workers

Local Union No. 1547, 587 F.2d 1379, 1385 (9th Cir. 1978),

cert. denied, 442 U.S. 944 (1979) ¥ American Postal Workers

Union Headquarters Local 6885 v. American Postal Work-

ers Union, 665 F.2d 1096, 1101 (D.C. Cir. 1981). Turner

meets the test.

The union’s reliance on Calhoon v. Harvey, 379 U.S. 134

(1964), is misplaced. The Court there said that the denial

of the plaintiffs’ request to »e candidates “was not a

discrimination against their right to nominate, since the

same [candidate eligibility] qualifications were required

equally of all members.” Jd. at 139.

Calhoon does not, as the union contends, stand for the

proposition that a member must allege the uneven applica-

tion of union rules to state a claim under 29 U.S.C.

A-5

§ 411(a) (1). Calhoon concerned candidate eligibility qualifi-

cations, a subject governed by Title TV. See 29 U.S.C.

§ 481. Turner is not challenging candidate eligibility

qualifications or election procedures. He alleged a violation

of his right to vote in referendums, which Title I alone

governs. See 29 U.S.C. § 411(a)(1). To state a claim under

Title I, Turner does not have to allege the uneven

application of union rules. He has stated a claim by

showing that he was denied the right to vote in ref-

erendums—a right guaranteed in Title I—which was

conferred on another class of members. See American

Postal Workers, 665 F.2d at 1100-01; Parish v. Legion,

450 F.2d 821, 828 (9th Cir. 1971).

The union, in a related argument, contends that Turner

is seeking relief for Title [TV claims and that the exclusive

remedy of Title IV precludes relief under Title I, citing

Kahn v. Hotel & Restaurant Employees’ & Bartenders

International Union, 469 F. Supp. 14 (N.D. Cal. 1977),

aff'd, 597 F.2d 1317 (9th Cir. 1979). We reject the argument.

The portion of the Kahn opinion relied upon by the union

concerned the timing of an officer’s election, which the

court held must be brought under Title ITV. Turner is not

contesting an election of officers. He challenges the dues

increase and the union rule prohibiting him from voting

in referendums. Title TV has no language referring to

elections, other than the election of officers. It does not

relate to referendum elections. Title I governs these dis-

putes, see 29 U.S.C. § 411(a)(1), (3); Denov rv. Chicago

Federation of Musicians, Local 10-208, 703 F.2d 1034, 1037

(7th Cir. 1983). Moreover, even though Turner’s challenge

to the voter eligibility requirements will affect future

elections of officers, his Title I cause of action is not

preempted by the existence of a future Title IV claim.

See Kupau v. Yamamoto, 622 F.2d 449, 455 (9th Cir.

1980); Depew v. Edmiston, 386 F.2d 710 (3d Cir. 1967).

A-6

The district court held that the union rule which limited

full book status to those members who had attained six

years experience was unreasonable. The union does not

contest the finding. Because there is no dispute on whether

the six-year rule is unreasonable, we need not address

Turner’s argument that all restrictions on the right to

vote, no matter how reasonable, violate 29 U.S.C. § 411

(a)(1).

The union, citing 29 U.S.C. § 482(¢)(2), argues that the

district court erred in failing to determine whether the

violations of 29 U.S.C. 4 411(a)(1) affected the outcome

of the referendum. 29 U.S.C. § 482(¢c)(2) provides that a

district court shall set aside an election if it finds “that

the violation of section 481 ... may have affected the

outcome of an election.” As this language demonstrates,

29 U.S.C. § 482(¢) applies only when a party has challenged

an election under 29 U.S.C. § 481. See, e.g., Donovan v.

Local Unton 70, International Brotherhood of Teamsters,

661 F.2d 1199, 1202 (9th Cir. 1981). It has no application

in the present case where Turner challenges the adoption

of the dues increase and the denial of his right to vote

in the referendum, both of which are governed by 29 U.S.C.

§41l1(a). See Connor v. Highway Truck Drivers and

Helpers, Local 107, 378 F. Supp. 1069, 1073-74 (E.D. Pa.

1974), modified on other grounds, 68 F.R.D. 370 (E.D.

Pa. 1975).

The district court was not divested of jurisdiction to

award attorney fees. See Masalosalo v. Stonewall Insurance

Co., 718 F.2d 955, 957 (9th Cir. 1983).

AFFIRMED.

A-7

Appendix D

United States District Court

Northern District of California

No. C-82-1117 RPA

Peter Turner

Plaintiff,

vs.

Paul Dempster, and Sailors’ Union of the Pacific,

Defendants.

[Filed September 27, 1983]

ORDER

The above-captioned case came for a regularly scheduled

hearing on September 15, 1983. The Court heard plaintiff’s

request for entry of declaratory judgment and injunction,

and defendants’ petition for reconsideration and request

for additional findings. Having received, read, and con-

sidered these motions, the Court hereby enters the fol-

lowing order.

1. The Court declares that the voter eligibility rules

which limited voting to members with six years actual sea

time are unreasonable and violate 29 U.S.C. § 411(a) (1).

2. The Court further declav»s that the constitutional

referendum which the union conducted in April-June 1981

is void because the referendum was conducted pursuant

to voter eligibility rules that the Court has determined

are in violation of 29 U.S.C. § 411(a)(1).

3. The Court finds that the entire referendum conducted

in April-June 1981 was tainted by the use of eligibility

rules that violate 29 U.S.C. § 411(a)(1).

4. Accordingly, the Court sets aside the dues increase

that was enacted in that referendum.

A-8

5. The Court orders that defendant union remit to

each of its members all dues collected in excess of the

$30 per quarter dues rate that was in effect before the

referendum of April-June 1981.

6. Finally, the Court orders that defendant Sailors’

Union of the Pacific publish this Order in the next issue

of the West Coast Sadlor.

IT IS SO ORDERED.

DATED: September 27, 1983.

/s/ ROBERT P. AGUILAR

Robert P. Aguilar

United States District Judge

a

A-9

Appendix E

United States District Court

Northern District of California

No. C-82-1117 RPA

Peter Turner,

Plaintiff,

Vv.

Paul Dempster and Sailors’ Union of the Pacific,

Defendant.

[Filed August 18, 1983]

OPINION AND. ORDER

The Sailors’ Union of the Pacifie (SUP) is a labor

organization that represents unlicensed seagoing personnel

aboard vessels of shipping companies belonging to Pacific

Maritime Association and other independent operators.

SUP contracts to supply qualified seamen to meet the

manning requirements of the operators’ vessels. The

seamen are dispatched to various vessels based upon

seniority and a rating priority determined by length of

service and possession of the required Coast Guard rating

certificates prescribed by various regulations of the De-

partment of Transportation.

Pursuant to the SUP constitution, there are three

classifications of union members. Prior to the 1981 amend-

ments, which are the subject of this lawsuit, the union

constitution restricted “Class A” or “full book” member-

ship to individuals who had served six qualifying years

of employment, actually working on the deck of a ship

at sea. Because employment often lasts for only months

at a time, it frequently takes longer than six calendar

A-10

years to satisfy the six vear requirement. Only full book

members are permitted to run for union office and vote

on all union related matters.

“Permit members” are individuals who have paid dues

for three years or more, but still have not satisfied the

six year “on deck” work experience requirement necessary

to attain full hook member status. Permit members may

vote in elections and hold office on only a limited basis.’

“Probationary members” are individuals who have paid

an initiation fee but have paid dues for less than twelve

months. Upon completion of probationary status and taking

of the union’s oath of obligation, a worker is admitted to

full membership. However, it is not until he has paid

dues for another two years and otherwise complied with

the union’s rules so as to keep in good standing, that he

gains the political rights accorded to permit members.

In 1979, the U.S. Department of Labor notified defendant

Paul Dempster, President and Secretary Treasurer of

SUP, that the Department considered unreasonable and

unlawful the union’s six year requirement for full book

status. In view of the Department’s authority to go to

Court to have unions elections set aside, see 29 U.S.C.

§§ 483 et seq., SUP and the Department attempted to reach

a compromise resolution of the dispute.

Ultimately, Dempster decided to propose a constitutional

amendment that would reduce from six years to three vears

the service time required to achieve full book status.

‘For example, permit members are precluded from voting on such

matters as disciplinary recommendations of a trial committee, res-

toration of membership, filling vacancies in office, and assessments.

Further, permit members are not allowed to vote on constitutional

amendments such as the one in dispute in the instant case. Addi-

tionally, only full book members are eligible to be members of such

union bodies as the negotiating committees and the trial commit-

tees, and to vote on contracts, strikes and other matters of import.

A-11

Dempster decided to propose this amendment to the

membership even though the Department of Labor sent

him a letter officially objecting to the three vear require-

ment. The letter expressed the Department’s opinion that

the three vear restrictions on the right of permit and

probationary members to vote is “clearly unreasonable.”

At the same time, Dempster proposed another amendment

calling for an increase in the quarterly dues from $30 to

$50. The amendment regarding the requirements for full

book status was published in West Coast Sailor, the union’s

newspaper. Dempster included statements supporting the

amendment. These statements referred to the Department

of Labor’s disapproval of the six year requirement, but

made no mention of the Department’s opposition to the

proposed three year requirement.

The election was conducted by mail over a two month

peried frem April 15 to June 15, 1981. Only full book

members, defined at that time as persons with six years

actual sea time, were allowed to vote in the referendum.

Plaintiff, Peter Turner has been a dues paying member

of SUP for 14 years. Nevertheless, he has been unable to

attain full book status because he has not satisfied the

Six year actual sea time requirement. Accordingly, Turner

was not allowed to vote in the 1981 referendum on the

proposed constitutional amendment to change the require-

ment for attaining full book status.

Turner strongly opposed both the six year requirement

and the proposed three vear requirement for full book

status. In order to sway the membership of the union to

his position, Turner sought to notify the membership of

the Department of Labor’s opposition to the proposed

three year requirement. Turner believed that a mailing

was the only practical way to reach the members of the

union.

A-12

On April 6, 1981, Turner wrote to Dempster asking to

use the union membership list to do a mailing to the union

membership. Turner stated that he intended to do the

mailing at his own expense. Dempster responded to Turner

by letter on April 14, 1981, rejecting Turner’s request.

Dempster’s letter stated in part:

After due consideration, your request to mail propa-

ganda is denied. The ballot will show the proposed

changes and the explanation of the reasons for the

changes. No more is needed. Furthermore your request

comes too late.

After receiving Dempster’s letter, Turner sent each

union office a copy of the statement he had hoped to

distribute by mail. Turner asked that the statement be

read to members present at the next union meetings.

This was done only at the branch meetings in Seattle,

Washington and Wilmington, Delaware. A total of 197

members were present at those two meetings. Thus, out

of an electorate of 1,928, only about ten percent of the

potential voters were exposed to Turner’s views.

The members of SUP ratified both of the proposed

constitutional amendments: the requirement for full book

status was reduced from six vears to three vears and

quarterly dues were increased from $30 to $50. Dissatisfied

with the process and the result of the referendum, Turner

filed this action seeking to have the election voided.

Turner seeks to have the referendum overturned on two

grounds. First, Turner asserts that because the six year

voter eligibility rule is unreasonable within the meaning of

§101(a)(1) of the LMRDA, 29 U.S.C. § 411, any refer-

endum conducted pursuant to this rule is necessarily void.

Second, Turner alleges that the referendum must be set

aside because the union’s refusal to give Turner the mem-

bership list unlawfully prevented Turner from expressing

his opposition to the proposed amendments.

— a an

A-13

In addition, Turner asks the Court to rule that the

modified (three year) voter eligibility requirement is

unreasonable under the LMRDA. Based on this ruling,

Turner seeks a ruling that the three year voter eligibility

requirement is therefore void and unenforceable. Turner

also requests that the Court find that the union breached its

fiduciary duty under § 501 by expending union funds to

publish materials supporting the proposed amendments.

Finally, Turner seeks a finding that the union violated

§§ 101(a)(1)(2), 411(a), and 431(c), by refusing to give

Turner access to legal memoranda regarding the proposed

amendments. Turner has moved for summary judgment

on all of the above-stated grounds.

Defendants have filed a cross-motion for summary judg-

ment. Defendants claim that this Court lacks subject matter

jurisdiction to determine the reasonableness of the union’s

voter eligibility requirements and that therefore the Court

is precluded from ruling on the validity of the challenged

referendum. Further, defendants contend that the LMRDA

does not entitle plaintiff to have his opposition materials

distributed in non-candidate elections. Finally, defendants

contend that plaintiff has failed to satisfy the procedural

requirements of 29 U.S.C. § 501, and is therefore barred

from filing a lawsuit pursuant to that section.

DISCUSSION

a. Court’s subject matter jurisidiction over plaintiff's

challenge to validity of voter eligtbiltty rules.

Whether this Court has jurisdiction over plaintiff’s chal-

lenge to the union’s voter eligibility rules depends on

whether plaintiff’s complaint states a cause of action under

Title I or Title IV of the LMRDA. Considerable tension

exists between the two Titles, and the parties disagree

about the issue of which Title plaintiff is proceeding under.

A-14

In general terms, Title I is designed to guarantee that

union elections are free and fair. Kapua v. Yamamoto, $22

F.2d 449 (9th Cir. 1980). Title I includes safeguards for the

equal voting rights of members ({ 411(a)(1)),? as well as

members’ freedom of speech and assembly (§ 411(a)(2)).°

Title IV, on the other hand, “sets up a statutory scherne

governing the election of union officers, fixing the terms

during which they hold office, requiring that elections be

by secret ballot, regulating the handling of campaign litera-

ture, requiring a reasonable opportunity for nomination

of candidates, authorizing union to fix ‘reasonable qualifica-

tions uniformly imposed’ for candidates, and attempting to

guarantee fair union elections in which all the members

are allowed to participate.” Calhoon v. Harvey, 379 U.S.

134, 140 (1964). The Ninth Circuit explained the substantive

differences between Title I and Title IV as follows: “Title I,

*The full text of 29 U.S.C. § 411(a)(1) reads as follows: “Equal

rights.—Every member of a labor organization shall have equal

rights and privileges within such organization to nominate candi-

dates, to vote in elections or referendums of the labor organization,

to attend membership meetings, and to participate in the delibera-

tions and voting upon the business of such meetings, subject to rea-

sonable rules and regulations in such organization’s constitution and

by-laws.”

*The full text of 29 U.S.C. § 411(a)(2) reads as follows: “Free-

dom of speech and assembly.—Every member of an labor organi-

zation shall have the right to meet and assemble freely with other

members; and to express any views, arguments, or opinions; and

to express at meetings of the labor organization his views, upon

candidates for election of the labor organization or upon any busi-

ness properly before the meeting, subject to the organization’s es-

tablished and reasonable rules pertaining to the conduct of meet-

ings: Provided, That nothing herein shall be construed to impair

the right of a labor organization to adopt and enforce reasonable

rules as to the responsibility of every member toward the organi-

zation as an institution and to iis refraining from conduct that

would interfere with its performance of its legal or contractual

obligations.”

A-15

denominated a Bill of Rights, guarantees, in 29 U.S.C.

§ 411(a)(1), ‘equal rights and privileges’ to nominate and

vote for candidates. Title IV, 29 U.S.C. §§ 481 et seq., regu-

lates the conduct of union elections in some detail.” Kapua,

622 F.2d at 453.

Aside from these substantive differences, there is a con-

siderable disparity in the enforcement mechanisms for the

two Titles. Title I grants aggrieved union members direct

access to the federal cvurts. 29 U.S.C. § 412. Title IV, con-

versely, provides that an aggrieved union member must

complain to the Secretary of Labor. 29 U.S.C. § 482. If the

Secretary finds probable cause that Title [V has been

violated, the Secretary may then file suit in the appropriate

federal district court.

Before reaching any of the substantive issues raised in

the cross motions for summary judgment, the Court must

deieruuue whether plaintiff's complaint relating’ to the

voting requirement states a claim under Title I or Title IV.

The Supreme Court has directed that “[a]n analysis and

understanding of the complaint are .. . essential to a deter-

mination of this issue.” Calhoon, 379 U.S. at 138.

Through this lawsuit, plaintiff seeks to overturn the

results of a referendum. Plaintiff argues that Title IV only

applies to elections for union officers. Thus, according to

plaintiff, Title IV does not grant the Secretary of Labor

any authority to bring a legal action challenging the manner

in which a union conducts a referendum. Under plaintiff’s

analysis, given that the Secretary of Labor is not empow-

ered by Title IV to protect a union member’s right to vote

in a referendum, there is no protection for this right unless

the union member can bring his own action in the federal

courts under Title I.

Plaintiff is correct in his assertion that Title IV makes

no mention whatsoever of referendums. Rather, the lan-_

guage of the section is strictly limited to detailed regula-

A-16

tions concerning the election of union officers. Extensive

research produces no cases that hold that Title IV has any

bearing on or application to union referendums. Further-

more, close analysis of the enforcement provision for Title

IV, 29 U.S.C. § 482, reveals that the Secretary of Labor is

only empowered to ask a court to void an election of offi-

cers. The language of § 482 suggests that Congress did not

contemplate that the Secretary would raise challenges to

referendums.

Given that the overall purpose of the Landrum-Griffin

Act is to insure union democracy,‘ if Title ITV does not

provide any protection for the voting rights of union

members in referendums, then some other section of the

Act must supply the protection that Title IV fails to pro-

vide.- The only section that can be reasonably construed to

apply to the referendums is Title I, 29 U.S.C. § 411(a)(1),

which grants all members of labor organizations “equal

rights and privileges . . . to vote in elections anc referen-

dums.” This, in fact, is the only section in the LMRDA

where there is specific reference to referendums. The Court

finds, therefore, that § 411(a)(1) is the section that protects

union members’ right to participate in referendums.’

‘See Finnegan v. Leu, 456 U.S. 431, 436 (1982) (“. .. the Act's

primary objective of ensuring that unions would be democratically

governed and responsive to the will of their membership,”; Aquirre

v. Automotive Teamsters, 633 F.2d 168, 172 (9th Cir. 1980) (“re-

newed concern over claims of undemocratic union organizational

practices prompted Congress to pass LMRDA.. .”). See also, Note,

Titles I and IV of the LMRDA: A Resolution of the Conflict of

Remedies, 42 U.Chi.L.R. 166 (1974).

*The Court notes that a number of federal courts, including the

Ninth Circuit, have applied Title I to cases involving referendums.

See Aguirre v. Automotive Teamsters, 633 F.2d 168, 173 (9th Cir.

1980); Trail v. International Brotherhood of Teamsters, 542 F.2d

961 (6th Cir. 1976); Blanchard v. Johnson, 532 F.2d 1074 (6th Cir.

1976); Pawlak v. Greenawalt, 464 F.Supp. 1265 (M.D.Pa. 1979).

The matter of dues increases is addressed in 29 U.S.C. § 41]

(a)(3). That section grants union members’ voting rights with re-

A-17

In order to state a cause of action under Title I, a plain-

tiff must set forth a claim of discrimination. Kapua, 622

F.2d at 453. Title I only protects members’ equal rights in

participating in certain union activities including voting.

Id., Calhoon, 379 U.S. 134. “In the absence of a claim of

discrimination by the union against the union member, a

federal district court lacks jurisdiction to award relief for

an alleged violation of §411(a)(1).” Kapua, F.2d at 453.

Plaintiff’s complaint herein does contain the requisite dis-

crimination charge. Plaintiff alleges that the union’s voter

eligibility rules make an unreasonable distinction between

members with more than six years actual sea time and

members who have served less than six years actual sea

time. The allegations respecting the difference in the voting

rights accorded to these two groups constitute allegations

of discrimination sufficient to make plaintiff’s claim one

properly cognizable under § 411(a)(1).

§ 412 grants the right to bring an action in federal district

court to any person whose rights under Title I have been

violated.’ Because the Court finds that plaintiff’s complaint

spect to dues increases. In Denow v. Chicago Federation of Musi-

cians, Local 10-208, 703 F.2d 1034 (7th Cir. 1983), the Seventh

Circuit held that the equal rights provisions of § 411(a)(3) are the

same as those contained in § 411 (a)(1). In this sense, the fact that

plaintiff challenges a dues increase may establish an additional

grounds for jurisdiction.

“Defendants argue that post-election remedies, such as those

sought by plaintiff, are only available under Title [V (29 U.S.C.

§§ 481 et seq.). The Ninth Circuit in its decision in Kapua v. Yama-

moto, 622 F.2d 449 (9th Cir. 1980), directly controverted the de-

fendants’ argument. The Court of Appeals said that “it is difficult

to reconcile a total post-election preemption by Title IV with the

legislative history which, as noted above, reveals that Title I was

added to the Act [after Title IV] to enlarge the rights of union

members. In light of our holding that the mere existence of Title

IV violations should not preclude relief under Title I, it would make

little sense to permit pre-election challenges under Title I but pro-

A-18

regarding voter eligibility requirements for the 1981 refer-

endum is properly a claim under Title I, the Court con-

eludes that it has jurisdiction over plaintiff’s claims regard-

ing voter eligibility rules.

b. Substantive merits of plaintiff’s challenge to the sizx-

year actual sea time requirement.

Having determined that the Court has jurisdiction over

plaintiff’s claims, the Court must now reach the substantive

merits of plaintiff’s and defendants’ claims.

The question is whether the union’s division of voting

rights violates the equal rights provision contained in Title

I. Plaintiff first contends that the very fact that the union

has parcelled out the right to vote in unequal allotments

violates the equal rights provision.

A review of prevailing authority makes quite clear that

plaintiff’s argument is without merit. One of Congress’ pri-

mary goals in enacting the LMRDA was to keep the Courts

out of internal union affairs. Calhoon, 379 U.S. at 140

(“general Congressional policy [is] to allow unions great

latitude in resolving their own internal controversies.”)

Courts have hued close to Congressional purpose by refus-

ing to get involved in questions about the division of voting

rights within unions. Denov vr. Chicago Federation of Must-

cians, Local 10-208, 703 F.2d 1034 (7th Cir. 1983) (court

found that Title I does not require one-member, one-vote

hibit all post-election relief... .. We thus conclude that the fact that

balloting has already taken place does not bar the invocation of the

district court's jurisdiction under Title I in that narrow class of

cases in which the member can establish discrimination as required

by the decision in Calhoon v. Harvey.” Id. 622 F.2d at 455-56.

In view of the language of the Ninth Circuit's opinion, this Court

must conclude that the Court has jurisdiction to consider post-

election claims under Title I. Thus, if plaintiff has a valid claim

under Title I, this Court will entertain the claim even though plain-

tiff seeks post-election relief.

A-19

system of representation; a system of proportional repre-

sentation is permissible as long as some meaningful repre-

sentation is achieved); American Federation of Musicians

v. Wittstein, 279 U.S. 171 (1964) (Supreme Court held that

system of weighted voting does not violate Title I). See

also Gordon v. Laborers International Union, 490 F.2d

633 (10th Cir. 1973). These courts have limited the review

of a union’s division of the right to vote to an examination

of whether the division is unreasonable or arbitrary or

capricious. Barring such a finding, the courts have declined

to rule on the wisdom of rules established by various

unions. See, Goldberg v. Marine Cooks and Stewards

Union, 204 F.Supp. 844, 845 (N.D.Cal. 1961). (“it is not for

this tribunal to impose its concept of a proper period [for

gaining voting right] upon the union.”). Consequently, the

Court concludes that the fact that the Sailors Union of the

Pacific divided the right to vote among its members, does

not in itself violate the equal rights provision of Title I.

Plaintiff's next, and far more substantial ground for

challenging the 1981 referendum is that SUP’s particular

division of the right to vote violates the equal rights provi-

sion of Title I. Specifically, plaintiff alleges that the six

year requirement is unreasonable.

As discussed above, federal courts will review the reason-

ableness of union rules relating to the right to vote. The

Court must, however, move very carefully in this area, as it

is the sound policy of the federal courts to keep involve-

ment in internal union affairs to the absolute minimum.

Calhoon, 379 U.S. 134.

Further, even to the limited extent that the Court is

willing to examine the union’s internal affairs, the Court

gives great deference to the union. 7d. In determining

whether the union’s voter rules are “reasonable” under

Title I, the Court must take into account the interests of

A-20

the union itself, the special demands of the job, and the

manner in which the demands of the job affect the union’s

ability to organize and represent the workers. See Gold-

berg, 204 F.Supp. at 845.

In the instant case, the Sailor’s Union of the Pacific has

undertaken to organize a group of workers that is par-

ticularly difficult to organize — unlicensed seagoing per-

sonnel. This is a highly unstable job, involving many

individuals who move in and out of the workforce. The

problems of union organization and representation are

compounded by the fact that the work is completely un-

centralized and that workers are sometimes out to sea and

virtually unreachable for months at a time. All of these

factors weigh heavily in favor of the union requiring a

longer than usual service time before granting members

the right to vote in all union matters.

Nevertheless, the union cannot use these facts to shield

its voter eligibility rules from all judicial scrutiny. Thus,

even though the Court should and does give deference to

the union’s choice about the appropriate length of time a

member should serve before receiving full voting rights,

the Court is also aware of its responsibility under Title I

to ensure that the voting requirements established by SUP

are not unreasonable or otherwise arbitrary and capricious.

Unfortunately, the Court cannot rely on precedent as

there have been very few cases of the sort presented by

these parties.

Defendants rely heavily on the decision in Goldberg v.

Marine Cooks and Stewards Union, 204 F.Supp. 844. In

Goldberg, the court approved a rule that required individ-

uals serve three years of seatime before receiving the right

to vote. Jd. The Court recognized that such a long service

requirement “precludes many individuals from becoming

eligible to vote” but determined that “it is not for the Court

A-21

to upset such membership requirements unless it be deemed

arbitrary and capricious or otherwise unreasonable.” 7d.

at 845.’

As discussed earlier, Congress’ intent in adopting the

Landrum-Griffin Act was to create a statutory basis for

ensuring the existence of union democracy.’ Union democ-

racy of the sort envisioned by Congress encompassed two

complimentary concepts. On the one hand, union democracy

means preventing union leaders from dictating union affairs

without regard for the membership. The Supreme Court

has said that the purpose of Title I was to guarantee “the

independence and fair operation of the union as the repre-

sentative of its membership.” Hall v. Cole, 412 U.S. 1

(1973).

The Landrum-Griffin Act was also designed to protect

the voting rights of individual union members. As the

Supreme Court said in American Federation of Musicians

v. Wittstein, 379 U.S. 171, (1964), the “pervading purpose

*There is some ambiguity as to the status of the individuals in-

volved in the Goldberg case. When the Court posed the question

it referred to the people who were being denied the right to vote

as “individuals who have certain seniority rights but are not deemed

to be members of defendant union.” Id. 204 F.Supp. 844. In another

portion of the opinion, the Court refers to individuals that do not

have the right to vote as “full-book members,” suggesting that those

who were denied the right to vote may be members of the union

by not full-book members.

This distinction, though it may seem minor, may be very impor-

tant with respect to the applicability of Goldberg to the instant

case. If the individuals who could not vote were not union members,

then the issue in Goldberg was the requirement for becoming a

member of the union, a separate and distinct issue from that pre-

sented in the instant case. If, on the other hand, the individuals who

were denied the right to vote were union members, but not full-book

members, then the Goldberg case was identical to the instant action.

*See footnote 5, supra.

‘

A-22

of [the Act] is that there should be full and active partici-

pation by the rank and file in the affairs of the union.”

Id. at 182-83.

Under the six-year sea time requirement, fully one-third

of the members of the Sailors Union of the Pacific were not

full-book members. Accordingly, one-third of the union was

unable to participate in referendums on such crucial mat-

ters as constitutional amendments. Precluding such a large

portion of the membership from voting on vital issues for

such a long time strikes this Court as being diametrically

opposed to the Congressional intent voiced in Title I of the

Landrum-Griffin Act.

Thus, in view of the goals of the Act, the Court concludes

that the six-year actual sea time requirement is not a rea-

sonable regulation under 29 U.S.C. § 411(a)(1). In reach-

ing this conclusion, the Court is mindful of the previously

discussed judicial deference to the union's choices, and of

the justifications for the voter eligibility rule. However, even

with these weighty considerations on one side of the equa-

tion, the Court believes that it must find the six-year sea

time requirement violates Title I of the LMRDA because

the exclusion of such a large percentage of the membership,

including some individuals like plaintiff who have served

in the union for many years, is repugnant to Congressional

intent as expressed in § 411(a)(1) of the Act.’

Accordingly, the Court has no choice but to void the ref-

erendum conducted between April and June 1982, because

the referendum was conducted pursuant to voter eligibility

*The fact that the Department of Labor found the six year re-

quirement unreasonable lends further credence to the Court's deci-

sion on this question.

A-23

rules that unreasonably impinged on union members’ right

to vote in violation of 29 U.S.C. § 411(a)(1).°

The Court is well aware of the difficulties this ruling may

occasion. Nevertheless, the Court believes that the result

contained herein is dictated by the LMRDA. The Court also

refrains from commenting on the reasonableness of the

three-vear actual sea time requirement proposed in the 1981

referendum. That question is not properly before the Court

at this time. However, the Court does suggest that the

union pay close attention to the Department of Labor’s

opinion on the reasonableness of any proposed votor eli-

gibility rule.

For the reasons stated above, and for good cause appear-

ing, the Court grants plantiff’s motion for summary judg-

ment and voids the 1981 referendum on constitutional

amendments.

IT IS SO ORDERED.

DATED: August 18, 1983.

/s/ ROBERT P. AGUILAR

Robert P. Aguilar

United States District Judge

Because the Court has determined to void the 1981 referendum

on the grounds stated above, the Court believes that it is neither

necessary nor proper for the Court to rule on the other grounds

advanced by ‘plaintiff. Thus, the Court refrains from making any

comment on the substantive merits of plaintiff's claims.