# Opposition Brief — Dempster v. Turner

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385017_1994%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1985
- **Citation:** 470 U.S. 1005

## Text

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1985

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IN THE ALEXANDER L STEVAS,

Supreme Court of the United States"

OCTOBER TERM, 1984

PAUL DEMPSTER and
SAILORS’ UNION OF THE PACIFIC,
m Petitioners,

PETER TURNER,
Respondent. ‘

On Petition for a Writ of Certiorari to the
United States Court of Appeals
for the Ninth Circuit

RESPONDENT’S MEMORANDUM IN OPPOSITION

PAUL ALAN LEVY
(Counsel of Record)
ALAN B. MORRISON

PUBLIC CITIZEN LITIGATION GROUP
Suite 700

2000 P Street, N.W.

Washington, D.C. 20036

(202) 785-3704

ROBERT H. GIBBS
GiBBs, DOUGLAS, THEILER AND
DRACHLER
1613 Smith Tower
Seattle, Washington 98104
(206) 623-0900
DAN SIEGEL

SIEGEL, FRIEDMAN AND DICKSTEIN
3270 East 14th Street
Oakland, California 94601
(415) 536-2200
Attorneys for Respondent
February 4, 1985

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WILSON - Eres Printing Co.. Inc. - 769-0096 - WASHINGTON. D.C. 20001

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TABLE OF CONTENTS

STATEMENT iashaaiacieaaitaenleteiiehadetbinineeniaaetiniminnaiatahie

REASONS FOR DENYING THE WRIT........0........

The Decision of the Court of Appeals Does Not
Conflict With Any Decision of This Court or of
Any Court of Appeals, and Petitioners Have Failed
to Preserve Their Third Question Presented for
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STUNTED ‘<abssinksnsecnssinnidosouieencnpasesistnesitinigeneniapscesinepeets

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TABLE OF AUTHORITIES

CASES Page
Bunz v. Moving Picture Mach. Operators, 567 F.2d

1129 (D.C. Cie. TOTES acticin 6
Calhoon v. Harvey, 379 U.S. 134 (1964) ................. 3, 4,5
Denov v. Musicians Local 10-208, 703 F.2d 1034

‘te OBR ee 5, 6
PP Pee bit Bae pee 7
Landry v. Sabine Indep. Seaman’s Ass’n, 623 F.2d

SOF (Oi Cie: TODD casita 7
NLRB v. Sears, Roebuck & Co., 421 U.S. 132

'( } EEE see ee EPS 7
Pawlak v. Greenawalt, 628 F.2d 826 (3rd Cir.

DODD cccvncsieenisnintitssciniinisieteidisiuaiiamenaiiianian nai 7
Rota v. BRAC, 64 F.R.D. 699 (N.D. Ill. 1974) _..... 6
Teamsters Local 82 v. Crowley, —— US. ——

CED aeccennsicnnnnctnitesitanicntinsiaiaiatameamimaaie lias 4
United States v. Lovasco, 431 U.S. 783 (1977) -....... 7
Wingate v. Teamsters Local 107, 59 LRRM 2073

CD, TR, BED vcaeiesssctvscsitntiniinnminsitticaiatiaiiamaa aii 6
Wirtz v. Hotel Employees Local 6, 391 U.S. 492

CD cisccitinsitiiaiciniatiicistetasiieiaiteahiepnstiiiacaigimameeata mana lanaae 6

OTHER AUTHORITIES
Labor-Management Reporting and Disclosure Act

of 1959, 29 U.S.C. §$§ 401 et seq. .......................--.- 2,6
Title I, 29 U.S.C. §§ 411 et seq. ........02............... 4,5,7

§ 101(a) (1), 29 U.S.C. § 411 (a) (1)... passim

§ 101(a) (3), 29 U.S.C. § 411 (a) (3). 5, 6

Fe § fee FR | See 2

Title IV, 29 U.S.C. §§ 481 et seq. .............00...... 4
£8 Bik Fe | eon 4

§ 402 (c) (2), 29 U.S.C. § 482(c) (2) .......... 6

FB Bt Ek Ree 4

Federal Rules of Civil Procedure, Rule 23 _............. 7

IN THE

Supreme Court of the United States
OCTOBER TERM, 1984

No. 84-1130

PAUL DEMPSTER and
SAILORS’ UNION OF THE PACIFIC,

. Petitioners,

PETER TURNER,
Respondent.

On Petition for a Writ of Certiorari to the
United States Court of Appeals
for the Ninth Circuit

RESPONDENT’S MEMORANDUM IN OPPOSITION

STATEMENT

Respondent Peter Turner has been a member of the
petitioner Sailors’ Union of the Pacific (“SUP”) for more
than fifteen years. However, a provision in the SUP Con-
stitution provided that no member could vote in any union
election or referendum until the member had actually
served on board ship under an SUP contract for at least
six years. Because of limited employment opportunities
in the shipping industry, and because the collective bar-
gaining agreements negotiated by the union grant a hir-
ing preference to members meeting the six year rule,
respondent has not yet accumulated sufficient “sea time”
to acquire the right to vote on any of the many questions

2

which vitally affect his working conditions. Nevertheless,
he is required to support the union under a union secu-
rity clause and is fully subject to union discipline under
the SUP Constitution.

Although respondent was willing to pay dues and ac-
cept the obligations of a union member, he believed that
he could not be denied the right to vote within the union.
Accordingly, he filed this action pursuant to section
101(a) (1) of the Labor Management Reporting and Dis-
closure Act of 1959 (“LMRDA”), 29 U.S.C. § 411(a) (1),
against petitioner SUP and its president, petitioner Paul
Dempster, to challenge the validity of the six-year sea-
time rule. His complaint sought both to prevent the union
from denying the right to vote to “permit members,” as
those members lacking six years of sea time are called,
and to invalidate a referendum from which the permit
members had been excluded and in which the union had
adopted several constitutional amendments, including a
67% increase in the dues rate established by the constitu-
tion. In addition, his complaint sought an order requiring
the union to refund to all members the increased dues that
had been collected pursuant to the unlawful referendum.

On cross-motions for summary judgment in the district
court, petitioners argued that the court lacked jurisdic-
tion to consider a challenge to the validity of a union rule
governing the right to vote, because such challenges could
only be pursued by the Secretary of Labor. They also
argued that, assuming the court did have jurisdiction,
certain of their voting restrictions were in fact reasonable.

The district court ruled for respondent. It first con-
cluded that it had jurisdiction under 29 U.S.C. § 412 to
consider challenges to the reasonableness of union rules
limiting the right to vote in union referenda. Pet. App.
A13-18. Despite what the district court deemed to be its
obligation to give deference to internal union rules in

3

order to avoid undue interference in union affairs, Pet.
App. A18-19, it found that the SUP’s voting restriction
was unreasonable because it had the effect of excluding
“fully one-third of the members . . . from voting on vital
issues.” Because it also found that there was no justifica-
tion for such a lengthy disqualification, Pet. App. A22, it
held that the rule violated section 101(a) (1) and enjoined
its enforcement. Pet. App. A7. Because the rule was un-
lawful, the district court also set aside the referendum
which had been conducted pursuant to the rule, and or-
dered the union to remit the improper dues increase to
each of its members. Pet. App. A7-8. At respondent’s
suggestion, the district court also ordered the union to
print the order in its newspaper, so that all union mem-
bers would be aware that their rights had been vindicated.
Pet. App. A8. The Court of Appeals for the Ninth Cir-
cuit affirmed in a brief opinion, which is reported at 739
F.2d 1426.

REASONS FOR DENYING THE WRIT

The Decision of the Court of Appeals Does Not Conflict
With Any Decision of This Court or of Any Other Court
of Appeals, and Petitioners Have Failed to Preserve
Their Third Question Presented for Review in This
Court.

1. Petitioners first seek review because, they contend,
this Court’s decision in Calhoon v. Harvey, 379 U.S. 184
(1964), denies the district court any jurisdiction to de-
termine the validity of union rules governing the eligi-
bility to vote in union referenda. The Court of Appeals
squarely rejected this argument, and no other court of
appeals has accepted it. In fact, there is no inconsistency
with Calhoon and the decision below is plainly correct,
principally because Calhoon involved only challenges to
procedures for electing union officers; this case, by con-
trast, addresses voting in union referenda and meetings.

In Calhoon, members of a union sued under section
101(a) (1) of the LMRDA to invalidate two union rules:

4

(1) a rule that only members who have belonged to the
union for at least five years were eligible to run for union
office, and (2) a rule that each member could nominate only
himself for union office. The Court determined that the
first rule limited the right to run for union office, but that
rules governing eligibility for office were governed solely
by Title IV of the LMRDA. Because such rules may only
be challenged by the Secretary of Labor under section 402,
a union member cannot seek to litigate them under section
101(a)(1). The Court also concluded that the second
rule did not deny the “equal right to nominate,” which is
protected by section 101(a)(1), because the rule gave
each member the same right to nominate. Although, as
the Court noted, the two rules taken together did prevent
members who failed to satisfy the candidate eligibility
rules from nominating anybody, members could not use
that conjunction to evade the requirements of sections 402
and 403, which provide that members whose ultimate
complaint is about a union’s candidate eligibility qualifica-
tions may obtain redress only in an action filed by the
Secretary of Labor.

Petitioners’ argument here ignores the fundamental
distinction between this case and Calhoon—the Calhoon
plaintiffs challenged a union officer election, which is reg-
ulated by Title IV of the LMRDA. Accord, Teamsters
Local 82 v. Crowley, —— U.S. —— (1984). Here, by
contrast, respondent challenged a union referendum on
constitutional amendments, including dues, which not only
is not regulated by Title IV (which governs only those
elections involving the selection of union officers), but is
regulated solely by Title I. If petitioners’ argument were
correct, members like Turner would not merely be rele-
gated to the procedures prescribed by Title IV for chal-
lenging elections, but would be deprived of any remedy
whatsoever to challenge even the most extreme denials
of the right to vote, so long as the union constitution (on
which, of course, the members could not vote) so pro-

~

5

vided. Congress plainly did not intend that result. E.g.,
Denov v. Musicians Local 10-208, 703 F.2d 1034, 1037
(7th Cir. 1983).

Petitioners argue, however, that the six-year sea-time
rule was not “discriminatory” and that therefore Calhoon
precludes respondent’s challenge. Pet. at 8-9. Although
inartfully phrased, this defense appears to be merely a
repetition of petitioners’ argument below that union mem-
bers may only challenge a union denial of the right to
vote by asserting that the union has applied its voter
eligibility rules in a “discriminatory” manner—+.e., in a
manner other than that required by the union’s rules—
and that a member may never challenge a voter eligi-
bility rule on its face, no matter how many members are
excluded by the rule and how unreasonable the exclusion.

Insofar as petitioners rely on Calhoon, they confuse this
Court’s discussion of candidate eligibility rules with the
voter eligibility rules at issue in this case. Indeed, peti-
tioners’ argument would render nugatory the proviso of
section 101(a) (1), which grants “equal rights . . . to vote
in elections or referendums . . . subject to reasonable
rules and regulations in such organization’s constitution.”
Calhoon stands for no such proposition, and although the
various decisions cited at page 8 of the petition do follow
Calhoon in forbidding Title I challenges to the reason-
ableness of rules governing eligibility to run for office, no
reported decision adopts the argument that rules govern-
ing the eligibility to vote on dues referenda and similar
matters are insulated from review for reasonableness.

2. Petitioners next seek review of the portion of the
orders below that invalidated the dues increase. They do
not argue that the exclusion of the one-third of the union
membership who did not meet the six year sea time re-
quirement was reasonable. Rather, they contend that be-
cause the SUP’s dues increase would have been approved
“by majority vote of the members” as required by section
101(a) (3) of the LMRDA, even if the permit members

6

had been allowed to vote, the increase cannot be set aside.
The flaw in this argument is that the courts below did
not. rely on section 101(a) (3) to invalidate the dues in-
crease; their decisions rest on the unlawful denial of vot-
ing rights under section 101(a) (1) and the standards for
approval of a dues increase in the SUP’s own constitu-
tion, and it is clear that a union dues referendum, like
any other referendum, must comply with both of them.
Bunz v. Moving Picture Mach. Operators, 567 F.2d 1117,
1120 (D.C. Cir. 1977); Rota v. BRAC, 64 F.R.D. 699,
702-703 (N.D. Ill. 1974). See also Denov v. Musicians,
supra, 703 F.2d at 1039.

Under the SUP Constitution, a two-thirds majority is
requircd to approve a dues increase, and as petitioners
concede, Pet. at 4, if all permit members had been per-
mitted to vote on the dues increase and had opposed the
increase, the vote in favor would have been less than 60%
in favor. Accordingly, the courts below properly set aside
the dues increase, and petitioners could not carry the bur-
den of proof enunciated by this Court for applying the
“may have affected” rule of 29 U.S.C. § 482 (c) (2), Wirtz
v. Hotel Employees Local 6, 391 U.S. 492, 505-509
(1968), even if their argument for applying those stand-
ards to this case were correct.

Obviously, if the SUP’s supermajority provision were
contrary to the LMRDA, it could not be applied to bar a
dues increase; but petitioners have cited no decision, and
respondent is aware of no such decision, that so states.
To the contrary, although section 101(a) (3) creates a
minimum standard for the imposition of a dues increase,
nothing in the LMRDA forbids a union to adopt a consti-
tutional provision that requires a supermajority for pas-
sage of an increase. See Wingate v. Teamsters Local 107,
59 LRRM 2073 (D. Del. 1964) (in case cited by peti-
tioners, court applied provision in union constitution re-
quiring supermajority to defeat proposed contract). Be-
cause the SUP has chosen to adopt such a provision, it is
by that standard that its referendum must be judged.

7

3. Petitioners’ final argument for granting review is
that the district court’s failure to certify this case as a
class action prevented the court from requiring them to
refund the unlawfully collected dues to their members.
Althougn respondent’s complaint sought unionwide relief,
it did not seek to proceed as a class action under Rule 23
of the Federal Rules of Civil Procedure.’ Yet petitioners
did not complain about Turner’s failure to proceed as a
class action in any brief on the merits in either the dis-
trict court or the court of appeals, even in the petitions
for reconsideration or rehearing tha. were filed in each
court. Only after rehearing was denied in the court of
appeals did petitioners even hint at such an argument in
a motion for stay pending certiorari, which was denied
without opinion. This case thus arises in a fundamen-
tally different posture than Landry v. Sabine Indep. Sea-
man’s Ass’n, 623 F.2d 347 (5th Cir. 1980), where a sim-
ilar objection was presented in a timely manner.

Had petitioners raised their class certification argu-
ment in the district court, respondent would have had the
option of either meeting that contention on the merits, or
seeking to amend his complaint and obtain class certifica-
tion. Because petitioners chese instead to take their
chances on the merits, they have deprived the Court of an
airing of the arguments in the opinions of the lower
courts. Accordingly, petitioners cannot obtain review on
this issue. United Staies v. Lovasco, 431 U.S. 783, 788
n.7 (1977) ; NLRB v. Sears, Roebuck & Co., 421 U.S. 132,
163-164 (1975).?

1 Unionwide relief is frequently granted in Title I cases without
any class certification, e.g., Pawlak v. Greenawalt, 628 F.2d 826
(3d Cir. 1980) ; see also Hall v. Cole, 412 U.S. 1, 8 (1973) (by their
very nature, Title I actions vindicate the collective interest of all
union members in their democratic rights).

2 We do not dispute that, as suggested by the cases cited at page
14 of the Petition, union members who lacked notice of the action
could have mounted a collateral attack on the judgment had it

8

CONCLUSION
The petition for a writ of certiorari should be denied.

Respectfully submitted,

PAUL ALAN LEVY
(Counsel of Record)
ALAN B. MORRISON

PUBLIC CITIZEN LITIGATION GROUP
Suite 700

2000 P Street, N.W.

Washington, D.C. 20036

(202) 785-3704

RoBerT H. GIBBs

Gipss, DOUGLAS, THEILER AND
DRACHLER
1613 Smith Tower
Seattle, Washington 98104
(206) 623-0900
DAN SIEGEL

SIEGEL, FRIEDMAN AND DICKSTEIN
3270 East 14th Street
Oakland, California 94601
(415) 536-2200
Attorneys for Respondent
February 4, 1985

been adverse to their interests. This opportunity is not, however,
available to petitioners who were parties to the action from the
start and in any event are adversaries of the remaining members
of the “class” whose due process rights were at stake in the cited
cases. In this regard, we note that not only has each union member
received written notice of the district court’s actions in the union’s
newspaper, but petitioners have frequently discussed developments
in the case in that newspaper in the course of denouncing re-
spondent.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385017_1994%3A2. Public record. Not legal advice.