Petition for Writ of Certiorari — National Transient Division, International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers & Helpers v. Donovan

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0. ALEXANDER L. STEVAS,

CLERK

In the Supreme Court of the United States

October Term, 1984

RAYMOND J. DONOVAN, Secretary of Labor,

U.S. Department of Labor,

Respondent,

VS.

NATIONAL TRANSIENT DIVISION

INTERNATIONAL BROTHERHOOD OF

BOILERMAKERS,

IRON SHIP BUILDERS,

BLACKSMITHS, FORGERS AND HELPERS, AFL-CIO,

and

INTERNATIONAL BROTHERHOOD OF

BOILERMAKERS,

IRON SHIP BUILDERS,

BLACKSMITHS, FORGERS AND HELPERS, AFL-CIO,

Petitioners.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

Steve A. J. BUKATY

Counsel of Record for Petitioners

WILLIAM S. ROBBINS, JR.

of BLAKE & UHLic, P.A.

475 New Brotherhood Building

Eighth and State Avenue

Kansas City, Kansas 66101

(913) 321-8884

Attorneys for Petitioners

E. L. MENDENHALL, INc., 926 Cherry Street, Kansas City, Mo. 64106, (816) 421-3030

QUESTIONS PRESENTED FOR REVIEW

Whether the Secretary of Labor has the authority

under Title IV of the Labor-Management Reporting and

Disclosure Act (LMRDA), 29 U.S.C. § 401, et seq., to file

suit in a United States District Court seeking a determina-

tion that members of a division within an international

labor organization have the right to have elections within

the division and and the right to vote in suck. elections as

guaranteed by Title I of the LMRDA.

Whether a division of an International labor organiza-

tion which operates in forty-one (41) states and which

has no autonomy can be properly characterized as a local

labor organization within the meaning of the LMRDA.

Whether a District Court may order that an election

be held pursuant to Title IV of the LMRDA when com-

pliance with such an order is impossible.

TABLE OF CONTENTS

QUESTIONS PRESENTED FOR REVIEW .................... I

EE Ie PCR nn cecemnenesiseenennienienaninntaainninnnnn Ilr

ST ET CHIN sntininninncernanvinsieniiisiesninabeminaalesiidaiie 2

I stirinrinsiiniinicnscianincinicicinniasuitiaiaaasiliniaaannats 2

DC RIED ceceiinkicceunnsncinstinlaeniaeiniannbebnetssintioans 2

STATEMENT OF THE CASE ...................... rebiinitinaivesaiied 2

REASONS FOR GRANTING THE WRIT—

I. The Question Presented By The Petition Is

One Of Major Significance In “he Admin-

istration Of The Labor-Management Report-

ing And Disclosure Act And Involves A Dis-

trict Court’s Granting Power To An Execu-

tive Agency Beyond That Which Is Provided

BF COURIER ccicicnsieninessinenunsinnnneiaininaadins ll

II. The Question Presented By The Petition Is

One Involving An Important Question Of Fed-

eral Law Which Has Not Been, But Should

Be, Settled By This Court; Namely, Whether

A Division Of An International Labor Organi-

zation, Which Operates In Forty-One States,

Is A Separate And Autonomous Local Labor

CID oacenscisiesscsnensitsinniinenioemsiaiiainiantiiinie 15

III. The Question Presented By The Petition Is

One Involving An Important Question Of Law

Decided By The Supreme Court To Which

The Lower Courts’ Decisions Are In Direct

GE acqenicnsnivresesivasrtnennnis natal 28

CTE IS | acc ciieississnrsnisiicveesianelilsgsieeneiaaneanmat as 29

APPENDIX A—Opinion Of The United States Court

Qf Appeals, Tenth Circuit, Dated June 15, 1984 ........ Al

Ill

APPENDIX B—Memorandum And Order Of The

United States District Court For The District Of

SO RI TI acs ccccercsnny sstnnnseensinsntcntnnnennn Al2

APPENDIX C—Memorandum And Order Of The

United States District Court For The District Of

Kansas, Dated December 31, 1981 0.0.2.0... Al9

APPENDIX D—Judgment Of The United States Court

Of Appeals, Tenth Circuit, Dated June 15, 1984 ........ A24

APPENDIX E—Judgment Of The United States Court

Of Appeals, Tenth Circuit, Denying Petition For Re-

hearing And Suggestion For Rehearing En Banc,

I hal cis ntanisahkesnseovnteninnenbasanbentinnnianons A26

APPENDIX F—Relevant Provisions Of The Labor

Management Reporting And Disclosure Act ............. ... A28

TABLE OF AUTHORITIES

Cases

Cleveland Orchestra Commission v. Cleveland Feder-

ation of Musicians, 303 F.2d 229 (6th Cir. 1962) ........ 25

District of Columbia v. Carter, 409 U.S. 418 (1973) ... 15

Duke Power Company v. Carolina Environmental

Study Group, Inc., 438 U.S. 59 (1978) 0... 18

Gurton v. Arons, 339 F.2d 371 (2d Cir. 1964) ............... 25, 26

Hodgson v. Union de Empleados de los Supermurcados

Pueblo, 388 F. Supp. 1026 (D. P.R. 1974)... 13

Illinois Malleable Iron Company, 127 N.L.R.B. 1509

(1960), supplemental opinion, Appleton Electric

Company, 129 N.L.R.B. 1347 (1961), enf. denied

on other grounds sub nom., N.L.R.B. v. Appleton

Electric Company, 296 F.2d 202 (7th Cir. 1961) ........ 24

Local No, 82, Furniture and Piano Moving v. Crowley,

ge Greece Cid anor mcnicae 13

Local 6256 v. United Mine Workers of America, 87

L.R.R.M. (BNA) 2191 (N.D. Ala. 1973), aff'd without

opinion, United Mine Workers Local 6256 v. United

Mine Workers, 491 F.2d 1406 (5th Cir. 1974) ............ 25

Luther v. Borden, 98 U.S. (7 How.) 1 (1849) 200... 14

Marshall v. Local Union 1374, International Association

of Machinists, 558 F.2d 1354 (9th Cir. 1977) ............ 13

Nickerson ¥. Travelers Insurance Company, 437 F.2d

ROD Cree Rs SD eeieirtcpeticniiteistnnntccnintentintinintennions 17

North Haven Board of Education v. Bell, 456 U.S. 512

CRETE senscctcen: seiciniaatetinianiccnaiinniinntisitinansiahnigihinieeninipeaninave 22

Ragland v. United Mine Workers of America, 188 F.

ea TD CA GD | ereinntnitninitesiitcnnntionninnn ll

Schuchardt v. Millwright and Machinery Erectors

Local Union No. 2834, 380 F.2d 795 (10th Cir. 1967)

Southern Steamship Company v. NLRB, 316 U.S. 31

CR ceils dancieenishiterinaribeintiiesinaahaaiiiiasatinnianeitinne a tbeahaninnmnnein 14

Strong v. Sheet Metal Workers International Associa-

tion, 90 L.R.R.M. (BNA) 2795 (N.D. Cal. 1974) ........ 25

United Brotherhood of Carpenters and Joiners v.

Sidell, 552 F.2d 1250 (7th Cir.), cert. denied, 434

ee, Ce RNID scat cinahenerssnsncsinsanitnvenenneyiiibsiepiadiasinlibadaimmens 25

United States v. One 1966 Voikswagen 2-Door Sedan,

Pe Re Ls eee 16-17

Vestal v. Hoffa, 451 F.2d 706 (6th Cir.), cert. denied,

Se le Se ED sebseiecsncninecicsesnenesttainisnasciptaienenamtanainceien 25

Virginian Railroad Company v. System Federation, 300

Sa: En MITT Scertcilonbscipnsinievsiessaniiateanatinsealaaieniahnaietinbatdipaiaaeelies 26

Williams v. International Typographical Union, 423

F.2d 1295 (10th Cir.), cert. denied, 400 U.S. 824

CIID saieeineicisbesiscstnsdhcmesnstcresioeemshiucuiihstnennennssianesiaicaamacicinsinigiaes 18, 26

Wirtz v. Local 169, International Hod Carriers, 246 F.

Supp. 741 (D. Nev. 1965) ...... (aaaehegiliacaeenbddinnssiediibibaaidit 28

Wirtz v. United Brotherhood of Carpenters and Joiners,

285 F. Supp. 455 (N.D. Cal. 1968) 0000... pan 28

Statutes

eC © A CI trees 3, 10, 15, 17

BD UBL. § SLRCG) CT) CRGIB) nner ceccececccccccecececssceneeeees 3, 12, 14

I is, en a ee ..3, 12, 13

29 U.S.C. § 431(a) (1976) . EN IEC 5

Rt ee |__| arene nennenoneD iilecticeiiaaiia 5

I ea ik 5

Oe ns i ie 5

Oe ers, eS i )

RS En te 3,5

ee Tas UU CIEE cscatnistsicaneienccaaatinn 4,5, 26

ee Se CINE‘ siisnsehnneinirndeaieessieadiaeicdioanans +

29 U.S.C. § 482(b) (1976) ....... itapshaiaiataeedddudaaaon ae 5, 14

Textbooks and Treatises

Bok and Dunlop, Labor In The American Community

FD en 19

Goldman, Labor Law And Industrial Relations In The

U.S.A. (Kluwer Deventer 1979) 0.00.00... 19

Lahne, The Local Union: A Regulatory Problem, 12

di, Wan GUIIIEED . crxscsitensesecthenisnsedeniicediihatandeeniniiidies 19

Sayles and Strauss, The Local Union (Harcourt, Brace

2S __y PRR INRCE EE SEN Seema Mr RS 16, 20

Sloane and Witney, Labor Relations (Prentice Hall,

Se Ge TEED nartclhctidituddetedictiedee dealers 19, 20

42 Am.Jur.2d, Injunctions, Section 37 (1969) ............ 26

No.

In the Supreme Court of the United States

October Term, 1984

RAYMOND J. DONOVAN, Secretary of Labor,

US. Department of Labor,

Respondent,

VS.

NATIONAL TRANSIENT DIVISION,

INTERNATIONAL BROTHERHOOD OF

BOILERMAKERS,

IRON SHIP BUILDERS,

BLACKSMITHS, FORGERS AND HELPERS, AFL-CIO,

and

INTERNATIONAL BROTHERHOOD OF

BOILERMAKERS,

IRON SHIP BUILDERS,

BLACKSMITHS, FORGERS AND HELPERS, AFL-CIC,

Petitioners.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

Petitioners pray that a Writ of Certiorari issue to the

United States Court of Appeals for the Tenth Circuit on its

judgment entered in this case.

REPORTS BELOW

The opinion of the United States Court of Appeals for

the Tenth Circuit (Appendix A, Al-All) is reported at

736 F 2d 618. The opinion of the United States District

Court for the District of Kansas (Appendix B, Al2-A18)

is reported at 542 F. Supp. 957.

JURISDICTION

The judgment of the United States Court of Appeals

for the Tenth Circuit was dated and entered on June 15,

1984. (Appendix D, A24-A25). Its judgment denying

en banc was dated and entered on July 13, 1984. (Appen-

dix E, A26-A27). The jurisdiction of this Court is in-

voked under 28 U.S.C. § 1254(1).

STATUTES INVOLVED

The relevant provisions of the Labor-Management Re-

porting and Disclosure Act of 1959, 29 U.S.C. § 401, et seq.

(1976), which are involved in this case, are set forth in

Appendix F (A28-A35). For the convenience of the Court,

however, the pertinent provisions of Section 3; Title

I, Sections 101 and 102; and Title IVY, Sections 401 and

402 are set forth immediately below:

“(i) ‘Labor organization’ means a labor organization

engaged in an industry affecting commerce and in-

cludes any organization of any kind, . . . in which em-

ployees participate and which exists for the purpose,

in whole or in part, of dealing with employers concern-

ing grievances, labor disputes, wages, rates of pay,

hours, or other terms or conditions of employ-

ment,...”

29 U.S.C. § 402(i) (1976)

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

organization shall have equal rights and privileges

within such organization . . . to vote in elections .. .

of the labor organization, . . .”

29 U.S.C. § 41l(a)(1) (1976)

“Any person whose rights secured by the provisions

of this title have been infringed by any violation of this

title may bring a civil action in e district court of the

United States for such relief (including injunctions)

as may be appropriate. Any such action against a

labor organization shall be brought in the district court

of the United States for the district where the alleged

violation occurred, or where the principal office of such

labor organization is located.”

29 U.S.C. § 412 (1976)

“(b) Officers of local labor organizations; manner

of election. Every local labor organization shall elect

its officers not less often than once every three years

by secret ballot among the members in good stand-

ing.”

29 U.S.C. § 481(b) (1976)

“(e) .. . In any election required by this section

which is to be held by secret ballot a reasonable op-

portunity shall be given for the nomination of candi-

dates and every member in good standing shall be

eligible to be a candidate and to hold office (subject

to section 504 and to reasonable qualifications uni-

formly imposed) and shall have the right to vote for

or otherwise support the candidate or candidates of

his choice,... Not less than fifteen days prior to the

election notice thereof shall be mailed to each member

at his last known home address.”

29 U.S.C. § 481(e) (1976)

“(a) Filing of complaint; presumption of validity of

challenged election. A member of a labor organiza-

tion—

(1) who has exhausted the remedies available

under the constitution and bylaws of such organi-

zation and of any parent body, or

(2) who has invoked such available remedies

without obtaining a final decision within three

calendar months after their invocation,

may file a complaint with the Secretary within one

calendar month thereafter alleging the violation of

any provision of section 401 (including violation of

the constitution and bylaws of the labor organization

pertaining to the election and removal of officers).

The challenged election shall be presumed valid pend-

ing a final decision thereon .. .”

29 U.S.C. § 482(a) (1976)

“(b) .. . The Secretary shall investigate such com-

plaint and, if he finds probable cause to believe that

a violation of this title has occurred and has not been

remedied, he shali, within sixty days after the filing

of such complaint, bring a civil action against the

labor organization as an entity in the district court

of the United States in which such labor organization

maintains its principal office to set aside the invalid

election, if any, and to direct the conduct of an elec-

tion or hearing and vote upon the removal of officers

under the supervision of the Secretary and in ac-

cordance with the provisions of this title .. .”

29 U.S.C. § 482(b) (1976)

STATEMENT OF THE CASE

On March 29, 1979, the Secretary of Labor filed this

action in the United States District Court for the District

of Kansas, pursuant to Section 210, 29 U.S.C. § 440, and

Section 402(b), 29 U.S.C. § 482(b), of the Labor-

Management Reporting and Disclosure Act (hereinafter

referred to as LMRDA or Act) alleging that the Defendant

National Transient Division (hereinafter referred to as

N.T.D.) violated Section 40i(b) of the LMRDA, 29 U.S.C.

§ 481(b), by failing to elect officers once every three years

by secret ballot and that the Defendant International

Brotherhood of Boilermakers, Iron Ship Builders, Black-

smiths, Forgers and Helpers, AFL-CIO (hereinafter re-

ferred to as International) violated Section 401(e) of the

LMRDA, 29 U.S.>. § 481(e), by failing to ensure that

N.T.D. members were afforded the right to nominate and

elect officers. Also, the Secretary alleged that both De-

fendants International and N.T.D. violated Sections 201 (a)

and (b) and 207(b), 29 U.S.C. §§ 431(a) and (b) and

437(b), by failing to file with the Secretary of Labor,

copies of a constitution and bylaws for the N.T.D. as well

as other organizational and financial reports. The Defen-

dants denied and strenuously opposed these contentions

arguing, inter alia, that the N.T.D. is not a “local labor

organization” as defined in the Act.

The International Brotherhood is divided into five di-

visions which are: the Construction Division, the Railroad

Division, the Maritime Division, the Industrial Division.

and the National Transient Division. Each of these divi-

sions rougnly equates with the areas of work performed

by Boilermakers. Each of these divisions is essentially

the same in make-up, operation, staffing and authority.

None of the directors of any of these divisions has ever

been elected. Each of these divisions functions basically

through International Representatives who, like the Di-

rector of the division, are appointed by the International

President. The Plaintiff, and his predecessors, have never

contended that any of these other divisions of the Inter-

national Brotherhood constitutes a separate labor organiza-

tion.

The N.T.D. operates in forty-one states. It consists

of Boilermakers who perform work principally in the steel

plate erection industry. The N.T.D. members travel con-

stantly. Most N.T.D. jobs are of short duration, and the

employees usually travel hundreds of miles from one job

to the next. The employees never know from one week to

the next where they may be working. The employees

generally travel from job-to-job with their employers.

The International Constitution contains certain pro-

visions regulating the operation of local lodges affiliated

with the International Brotherhood. The International

Constitution requires local lodges to hold regularly sched-

uled monthly meetings at which all members are afforded

an opportunity to attend and participate. It further re-

quires local lodges to hold elections at least once every

three years and to send notice of nominations to the

members fifteen days before the nominations are due, and

to send election ballots to the members thirty days before

the ballots are due.

The local lodges affiliated with the International

Brotherhood have no difficulty in complying with these

constitutional provisions for monthly meetings and holding

of local lodge elections. Between seventy and ninety-five

percent of the members of local lodges generally vote in

local lodge elections.

The evidence adduced at the trial, including the depo-

sitions which were spread upon the record, indicates that

it would be a physical impossibility for the N.T.D. to have

any type of monthly meeting at which even a small per-

centage of the members would have an opportunity to at-

tend and participate. This is because of the transitory

nature of the work, and the fact that the members are

constantly on the move. The evidence also indicates that,

despite tremendous efforts by the N.T.D. business office to

maintain addresses on the members, it is impossible to

maintain an up-to-date mailing list, and that the N.T.D.

cannot assure that it can get ballots to even one-half of

its members within thirty days of an election.

In 1981, members of the N.T.D. were allowed to nom-

inate and elect delegates to the International Brotherhood’s

1981 convention. This nomination and election of delegates

was conducted in conformity with an agreement reached

with the Department of Labor. The evidence demon-

strates that only fourteen percent of the N.T.D. members

voted for delegates to the convention.

The Department of Labor made no proposal or sug-

gestion as to how the N.T:D. could conduct election of of-

ficers which would comply with the International Broth-

erhood’s Constitution or with the Act and the Plaintiff’s

regulations. Quite simply, the Department of Labor did

not even suggest to the District Court or the Appellate

Court any manner in which the N.T.D. could conduct a

lawful election of officers.

The N.T.D. differs markedly from Boilermaker Con-

struction locals. Boilermaker Construction locals all op-

erate exclusive hiring halls. The N.T.D. does not and can-

not operate in such a manner. The local lodges have no

jurisdiction outside of their defined geographical terri-

tory; whereas the N.T.D. operates throughout the forty-one

states. The wages of N.T.D. members are determined by

the wages negotiated by the various Construction locals.

However, no Construction local has the authority to de-

termine the wages of the members of any other Construc-

tion local affiliated with the International Brotherhood.

Considerable testimony was adduced from N.T.D. con-

tractors who indicated that the N.T.D. cannot be operated

as a local, and that they could not operate as union con-

tractors if they were required to man their N.T.D. jobs

with Boilermakers from Boilermaker Construction local

lodges. They forecast dire consequences for their industry,

and for the members of the N.T.D., if the Court were to

hold that the N.T.D. is a local and ordered it to operate as

such.

No election of officers has ever been conducted among

the members of the N.T.D. The Defendants took the posi-

tion that the Court lacked jurisdiction under Title IV of

the Act to entertain this suit because no election had been

conducted. It has consistently been the position of the

Defendants that the appropriate vehicle for determining

whether or not an election should have been conducted

among members of the N.T.D. is a suit under Title I by

members of the Boilermakers. The Defendants moved to

dismiss for lack of jurisdiction based upon this argument.

That Motion was denied by the District Court. The Dis-

trict Court ruled that:

“the Secretary may bring an action under §482

to enforce the provisions of §481(b), which require

elections to be held every three years. We find further

support in the language of §482(b), ‘to set aside the

invalid election, if any.’ [Emphasis added]. Congress

obviously contemplated that at certain times, no elec-

tion would be held and the Secretary would be re-

quired to bring suit ‘to direct the conduct of an elec-

tion.’ §482(b).”

Marshall v. National Transient Division, et al., Memoran-

dum and Order filed Dec. 31, 1981 (A21). Defendants

renewed their Motion at the trial, and it was again over-

ruled.

A trial to the United States District Court for the Dis-

trict of Kansas was held on June 6, 7 and 8, 1982. On July

15, 1982, the District Court issued its judgment holding

that the N.T.D. was a “national labor organization” within

the meaning of the LMRDA thereby requiring the N.T.D. to

hold elections every five years by either direct election

through secret ballot or at a convention of delegates chosen

by secret ballot, pursuant to Section 401(a), 29 U.S.C. §

481(a), of the Act. In so ruling, the Court found that:

“The evidence points out that NTD is not a local labor

unit. The word ‘national’ in its title clearly defines the

geographical boundaries of NTD. The transient nature

of the work necessitated the shift of NTD from a

Chicago local to a national organization. Despite the

similarities in function, the Court cannot find that

NTD is a ‘local’ labor organization.”

Donovan v. National Transient Division, et al., 542 F. Supp.

957, 960 (D. Kan. 1982) (A17).

Both the Plaintiff and the Defendants appealed to the

United States Court of Appeals for the Tenth Circuit.

Oral arguments were presented by both parties before the

Court of Appeals on September 13, 1983. On June 15,

1984, the Court of Appeals for the Tenth Circuit rendered

its ruling which affirmed in part and reversed in part the

decision of the District Court. The Court of Appeals found

that the District Court had subject matter jurisdiction over

the action, because “the text of the statute clearly indicates

that Congress contemplated an action pursuant to § 482

when a labor organization fails to conduct an election.”

Donovan v. National Transient Division, et al., 736 F.2d

618, 620 (10th Cir. 1984) (A5). The Court relied on

decisions of other Courts which found jurisdiction under

29 U.S.C. § 482 for actions brought when a union failed to

conduct an election within the time limits which 29 U.S.C.

§ 481 prescribes.

The Court of Appeals affirmed the decision of the Dis-

trict Court that the Defendant N.T.D. was a labor organi-

zation within the meaning of 29 U.S.C. § 402(i). How-

ever, the District Court’s ruling that the N.T.D. was a

“national labor organization” was reversed on appeal. The

Court of Appeals characterized the N.T.D. as a “local labor

organization.” The Court stated:

“|. it makes little sense to focus exclusively on the

geographical proximity of the organization’s member-

ship in determining whether a labor organization is a

local within the meaning of § 481. Rather, congres-

sional intent indicates that the focus should be on

the relationship between the organization and its mem-

bers... Given its structure and functions, we find no

reason to reject the Secretary’s characterization of

NTD as a local labor organization.”

Id. at 623 (A9-A10).

The Court of Appeals also rejected the Defendants’

argument that compliance with the election requirements

of 29 U.S.C. § 481 would be impossible if the N.T.D. were

characterized as a labor organization within the meaning

of 29 U.S.C. § 402(i). The Court stated:

“The LMRDA contains no exception for instances in

which compliance with these requirements is difficult,

and we are unwilling to imply one given the clear con-

gressional mandate. Cf. Wirtz v. Local Union No.

1622, 285 F. Supp. 455, 465 (N.D. Cal. 1968) (Congress

did not give courts the power to determine whether

election would serve the public interest). Moreover,

defendants have not shown that NTD is unable to

comply with the Act’s election provisions Section

481(e) merely requires that the labor organization

mail notice of the election to its members at their last

known home address; it does not require that the

notice actually reach them.”

Id. (All).

REASONS FOR GRANTING THE WRIT

The Question Presented By The Petition Is One

Of Major Significance In The Administration Of

The Labor-Management Reporting And Disclo-

sure Act And Involves A District Court’s Grant-

ing Power To An Executive Agency Beyond That

Which Is Provided By Congress.

The District Court held and the Court of Appeals

affirmed that the District Court had jurisdiction under

Title IV of the LMRDA to hear the Secretary’s Complaint

and to direct the conduct of an election. However, Title

IV does not confer upon union members rights which they

have not previously enjoyed. Ragland v. United Mine

Workers of America, 188 F. Supp. 131 (N.D. Ala. 1960).

Although the N.T.D. has been in existence for almost forty

years, N.T.D. members have never voted for officers in

an election. This is because the International Brotherhood

has never considered the N.T.D. to be a separate labor

organization.

The question of whether N.T.D. members are entitled

to elect officers must be resolved under Title I. Sections

101(a) (1) and 102 of the LMRDA, 29 U.S.C. §§ 411(a) (1)

and 412, read, in pertinent part, as follows:

“Every member of a labor organization shall have

equal rights and privileges within such organization

to nominate candidates, to vote in elections or refer-

endums of the labor organizations, to attend member-

ship meetings and to participate in the deliberations

and voting upon the business of such meetings .. .

... Any person whose rights secured by the provisions

of this title have been infringed by any violation of

this title may bring a civil action in a district court

of the United States for such relief (including in-

junctions) as may be appropriate...”

The Secretary of Labor has no authority to file suit

to remedy an alleged deprivation of Title I rights. Yet,

that is exactly what happened here. Distilled to its

essence, the Secretary’s claim is that N.T.D. members do

not have the right to nominate candidates and vote in

elections as do other members of the International

Brotherhood. This clearly is a claimed violation of

§ 101(a) (1), 29 U.S.C. § 411(a) (1); and, only those union

members whose rights have been infringed by the alleged

violation may sue to remedy it.

The Secretary only has authority to file suit under

Title IV, once the Title I right to an election has been

determined. But here, the Title I questions have never

been resolved. Therefore, the Title IV suit was premature.

To hold otherwise is to rule, in direct contravention of

§ 102, 29 U.S.C. § 412, that the Secretary may sue to

remedy infringement of Title I rights. Therefore, the

District Court lacked jurisdiction to entertain the Sec-

retary’s complaint because it seeks to vindicate alleged

Title I rights.

The legislative history of Title I indicates that all

pre-election conduct, including the determination of the

appropriateness of an election, is to be attacked by suits

under Title I. Prior to the enactment of Title I, state

law provided the principal protection for union members

prior to an election. Local No. 82, Furniture and Piano

Moving v. Crowley, 104 S.Ct. 2557, 2567, fn. 18 (1984).

When Title I was originally introduced, the legislative

purpose behind it was to substitute a federally protected

right for the rights normally governed by state law.

However, the original Title I proposal sought enforcement

of those rights by the Secretary of Labor. This proposal

was amended to provide for enforcement of Title I rights

through suits by the individual union members only. The

Kuchel Amendment which provided for individual en-

forcement of Title I rights explicitly eliminated from Title

I the right of the Secretary to sue in the individual’s

behalf.

It is respectfully submitted that the lower Courts

have failed to properly classify this suit as a Title I suit.

The Appellate Court relied on Marshall v. Local Union

1374, International Association of Machinists, 558 F.2d 1354

(9th Cir. 1977); and Hodgson v. Union de Empleados de los

Supermurcados Pueblo, 388 F. Supp. 1026 (D. P.R. 1974),

in asserting that other Courts have upheld actions under

Title IV when a union failed to hold an election within

the time limits prescribed by § 401 of Title IV, 29 U.S.C.

§ 481. However, in each of these cases the right to have

an election had already been established. Section 402(b)

of Title IV, 29 U.S.C. § 482(b), gives the Secretary the

right to bring suits to correct violations of Title IV. How-

ever, Title IV does not require elections; it merely pre-

scribes the time limits within which elections must be

conducted, once the Title I right to have an election has

been established.

The basic right to an election is grounded on Title I

concerns. As noted above, Title I provides that “every

member of a labor organization shall have equal rights and

privileges within such organizations . . . to vote in elections

or referendums of a labor organization...” 29 U.S.C.

§ 411(a)(1) (1976). The legislative history of Title I in-

dicates that the Secretary has no right to file suit on behalf

of any individual to enforce these rights. Therefore, if

the right to “vote in elections or referendums of the labor

organization” is asserted, it is a right which must be as-

serted under Title I and, which cannot be litigated by

the Secretary in a Title IV action.

The effect of the Appellate Court’s decision is to

broaden the power of the Secretary far beyond that which

is delegated by Congress in the LMRDA. The Supreme

Court has unequivocally stated that it is the province of

a court to expound upon the law, not to make the law and

thus, the court must administer the law as the court finds

it. Luther v. Borden, 98 U.S. (7 How.) 1 (1849). Fur-

thermore, where the legislative purpose in refusing to alter

the scope of legislation is “so plain”, the courts are power-

less to “assume to do that which Congress has refused to

do.” Southern Steamship Co. v. NLRB, 316 US. 31

(1942). As the Supreme Court has stated,

“Just as ‘[w]e are not at liberty to seek ingenious

analytical instruments’ to avoid giving a congressional

enactment the broad scope its language and origins

may require, United States v. Price, 383 U.S. at 801,

16 L.Ed.2d 267, so too are we not at liberty to recast

this statute to expand its application beyond the lim-

ited reach Congress gave it.”

District of Columbia v. Carter, 409 U.S. 418, 482 (1973).

The lower courts have provided the Secretary of Labor

the power not only to enforce the substanitve right to an

election, if there is any, but also to decide whether in the

first instance there is the existence of the right to an

election. It is only Title I which gives an individual union

member the right to vote in an election. Congress has

stated that these rights are to be enforced by suits brought

by the individuals and that the Secretary does not have

the right to file a suit on behalf of these individuals to

enforce these Title I rights. However, in this case the

lower courts disregarded the Congressional mandate pro-

hibiting the Secretary of Labor’s involvement in the pro-

tection of these Title I concerns and have “assumed to do”,

in expanding the power of the Secretary beyond the Title

IV limits imposed by Congress, that which Congress had

refused to do. Therefore, the Secretary did not have the

right to bring this suit and the District Court did not have

jurisdiction to hear the matter.

II. The Question Presented By The Petition Is One

Involving An Important Question Of Federal Law

Which Has Not Been, But Should Be, Settled By

This Court; Namely, Whether A Division Of An

International Labor Organization, Which Oper-

ates In Forty-One States, Is A Separate And Au-

tonomous Local Labor Organization.

Section 3(i) of the Act, 29 U.S.C. § 402, defines a

labor organization as any organization in which employees

participate and which exists for the purpose in whole or in

part of dealing with emyloyers concerning grievances, labor

disputes, wages, rates of pay, hours, or other terms or

conditions of employment. Thus, the statute sets out a

two-pronged test for determining whether or not an entity

is a labor organization. First, the entity must be an or-

ganization in which employees participate; second, the

entity must deal with employers concerning terms and

conditions of employment.

Participation generally takes the form of attending

meetings and direct contact with the entity. Sayles and

Strauss, The Local Union, 93, 146 (Harcourt, Brace & World

1967). However, N.T.D. members are not able to partici-

pate in the N.T.D. because of the transient nature of their

work, which requires them to travel long distances on short

notice resulting in great fluctuations in the numbers of

members in any given area.

There was no evidence presented at the trial concern-

ing the “participation” nexus with the N.T.D. Conse-

quently, there was no finding of fact by the District Court

that the N.T.D. was an organization in which employees

participated. However, the Court of Appeals, in its de-

cision, summarily heid that the “N.T.D. holds meetings in

which its members participate” and thus, “the evidence

clearly shows that the N.T.D. is an organization in which

employees participate.” Donovan v. National Transient

Division, et al., 736 F.2d 618, 622 (10th Cir. 1984) (A8).

A Court of Appeals has limited authority to make its

own findings of fact and decide the appeal, notwithstand-

ing the absence of specific findings of fact by the trial

court, where a full understanding of the issues presented

to the trial court can be garnered from the record. See,

United States v. One 1966 Volkswagen 2-Door Sedan, 490

F.2d 381, 383 (3rd Cir. 1973). However, if an appropriate

review by the Court of Appeals is not possible because of

the District Court's failure to make findings; and, if the

reviewing court is in doubt as to just what the trial court

believed the facts to be, and thus, is left to speculate as to

the basis for judgment, the Court of Appeals must remand

the case and direct the lower court to make findings.

Nickerson v. Travelers Insurance Co., 437 F.2d 113 (5th

Cir. 1971). Here, a factual determination that members

of the N.T.D. participated in the organization as required

by Section 3(i) of the Act, 29 U.S.C. § 402(i), was critical

to a finding that the N.T.D. is a labor organization as de-

fined in Section 3(i), 29 U.S.C. § 402(i). The absence

of such a finding was clear error by the trial court.

Moreover, such a finding made by the Court of Ap-

peals constitutes a clear error in that there is no factual

basis for such a finding. As noted above, the record is

barren of any evidence that the N.T.D. members participate

in the division. Furthermore, the N.T.D. does not conduct

any meetings, and thus, the Court of Appeals conclusion

that the “N.T.D. holds meetings in which its members

participate” is clearly erroneous. Therefore, the Court of

Appeals could not rely on the trial court record in con-

cluding that the N.T.D. members participated because of

the absence of any evidence of participation. Thus, the

Court of Appeals was forced to speculate that the basis of

the trial court’s judgment was that the N.T.D. members

participated by attending N.T.D. meetings. However, such

speculation is without foundation in fact because the record

is devoid of any indication that the N.T.D. conducted any

meetings. Therefore, the Court of Appeals should not have

speculated about the facts, but rather, should have re-

manded the case to the trial court to make specific findings.

A lower court’s finding is “clearly erroneous” when,

although there is evidence that supports it, the reviewing

court on the entire record is left with the definite and firm

conviction that a mistake has been committed. Duke Power

Co. v. Carolina Environmental Study Group, Inc., 438 U.S.

59 (1978). Here there is no evidence whatsoever to in-

dicate that N.T.D. members participate within the division.

Thus, any finding by the Court of Appeals that the partici-

pation nexus of the “labor organization test” has been met

is a mistake and clearly erroneous.

The N.T.D. was established by the International

Brotherhood to effectuate the “common program” for the

‘-vhole industry” consisting of transitory members. It was

not established as an entity separate and apart from the

International. It was designed to assist in representing the

transitory members of the Brotherhood.

The effect of the District Court’s decision and the Court

of Appeals affirmance is to put all divisions of national

labor organizations on notice that they may be considered

separate labor organizations in and of themselves and sub-

ject to all federal requirements accordingly. Such a ruling

provides the judiciary system with carte bianche authority

to interfere with the internal structure of labor organiza-

tions, in direct contravention of principles previously rec-

ognized. As the Tenth Circuit Court of Appeals stated in

Williams v. International Typographical Union, 423 F.2d

1295, 1297 (10th Cir.), cert. denied, 400 U.S. 824 (1970):

“We believe that Congress did not intend the Act to be

an invitation to the Courts to intervene at will in the

internal affairs of unions and that general supervision

of unions by the Courts would not contribute to the

betterment of unions or their members or to the cause

of labor management relations.”

Unfortunately, if the lower courts’ decisions were al-

iowed to stand. such would be the natural and inevitable

consequence.

The majority of the evidence presented at the trial

was presented in rebuttal to the Plaintiff’s claim that the

N.T.D. is a local labor organization. It indicates that the

N.T.D. is not a local.

Title IV of the Act recognizes three basic groups of

labor organizations: locals, intermediate bodies, and

nationals/internationals. The N.T.D. is none of these. It

is a division of the International, the same as the other

four divisions. Only the government would claim that a

division operating in forty-one states is a local.

Very little discussion can be found in the decisional

law concerning the nature and make-up of local labor

organizations. However, general treatises on the subject

indicate the following. Local labor unions are considered

the basic unit of a national labor organization, and are

recognized for their relatively simple structure. Lahne,

The Local Union: A Regulatory Problem, 12 Lab.L.J.

1115, 1130 (1961). “The basic unit is the local, which may

include only the employees in a single large plant or extend

to numerous small employers in a defined geographical

area.” Bok and Dunlop, Labor In The American Com-

munity, 150 (Simon and Schuster 1970). The most prev-

alent characteristic of a local labor organization is its con-

centration in representing workers of “. . . bargaining units

located within close geographical proximity.” Goldman,

Labor Law And Industrial Relations In The U.S.A., 182

(Kluwer Deventer 1979). The members of a local are

“geographically close to only the local.” Sloane and Wit-

ney, Labor Relations, 171 (Prentice Hall, Inc., 3d Edition

1977).

The Court of Appeals appeared to be under the mis-

taken impression that the lack of geographic proximity is

the only difference between the N.T.D. and other local

labor organizations, affiliated with the International

Brotherhood. This, of course, is not true. The evidence is

overwhelming, and uncontradicted, that the N.T.D. can-

not conduct monthly meetings or otherwise afford the

members of its division an opportunity to participate in

the affairs of the division in any way similar to the par-

ticipation available to members of Boilermaker local

unions. The monthly meeting is probably the singular

most important aspect and characteristic of a local labor

organization. The local union monthly meeting is “the

sovereign assembiy which governs its affairs.” Sayles

and Strauss, supra, at 146. Because of the important nature

of the local meeting, labor officials are constantly attempt-

ing to achieve a high membership turnout at the meetings.

Sloane and Witney, supra, at 179.

Thus, as the authors indicate, a local labor organization

can be recognized by its close geographic proximity to the

membership and by its conducting monthly meetings to

bring the membership together to discuss business relevant

to the needs and interests of the members as a whole.

These are the two most prevelant characteristics of a local

labor organization. Obviously, the N.T.D. does not and

cannot possess either of these attributes. Because of the

transitory nature of the work, there is no location at which

an N.T.D. office or local coul. be: set up which would main-

tain close proximity to even a sizable minority of the mem-

bers. Quite simply, there is no geographic proximity be-

tween the N.T.D. and the members. Furthermore, as has

been unequivocally established, it is a physical impossibility

for the N.T.D. to conduct meetings at which members

would have an opportunity to attend and participate. Yet,

this is one of the cornerstones of a local labor organiza-

tion.

As noted above, there is simply no evidence that mem-

bers of the National Transient Division can participate in

any manner in the affairs of the N.T.D., as do members of

a local union. Accordingly, the evidence stands uncontra-

dicted that the N.T.D. is not, and cannot operate as, a local

union. Therefore, the District Court correctiy ruled that

the N.T.D. is not a local labor union and its decision in

that regard should be reinstated.

The evidence also stands uncontradicted that the N.T.D.

differs markedly from the Boilermaker construction locals

to which it has been compared incorrectly by the Plaintiff.

As noted above, all Boilermaker construction locals operate

exclusive hiring halls and are required to comply with the

National Joint Referral Rules. Thus, all members of Boil-

ermaker construction locals can only seek employment by

being referred from their local hall’s out-of-work list and

are not free to solicit employment directly from em-

ployers; nor are they free to travel from job-to-job with

their employers. The opposite is true with the N.T.D.

N.T.D. members are not required to obtain job referrals;

instead, they are free to solicit employment directly from

N.T.D. contractors and they travel from job-to-job with

their employers.

Plaintiff anchored his contention that the N.T.D. is a

local principally upon the fact that International Repre-

sentatives assigned to the National Transient Division

have some duties and responsibilities in common with

Business Managers and Business Agents of local lodges.

While there are some similarities between the two, the dif-

ferences far outweigh them. Furthermore, the evidence

conclusively demonstrates that the International Represen-

tatives assigned to the National Transient Division have

much more in common with the International Representa-

tives assigned to the Construction Division, as well as their

counterparts in the other divisions of the International

Brotherhood, than they do with the Business Agents of

local lodges. As noted above, the National Transient Divi-

sion Representatives and Construction Division Represen-

tatives both serve under directors of their respective divi-

sions; all are appointed by the International President; and,

they all perform exactly the same duties and functions.

Yet, the government has never contended that the Con-

struction Division, or any of the other divisions, of the

International Brotherhood is a labor organization or that

Title IV of the LMRDA requires that its Representatives

be elected.

The Secretary has contended that his determination

that the N.T.D. is a local labor organization is entitled to

deference. In support of this proposition, Plaintiff cited,

inter alia, North Haven Board of Education v. Bell, 456

U.S. 512 (1982), where the Supreme Court stated, in per-

tinent part:

“In construing a statute, this court normaliy accords

great deference to the interpretation, particularly when

it is long-standing, of the agency charged with the stat-

ute’s administration.” (Emphasis added).

The Defendants submit that the Secretary’s proffered

interpretation in this case is entitled to no deference. As

the foregoing quote demonstrates, the rule of according

deference to an administrative agency’s interpretation is

not automatic. Furthermore, as is evident from the testi-

mony of Alva Jones, the only witness called by the Plain-

tiff at trial, the Secretary’s determination that the N.T.D.

is a local labor organization is not a long-standing inter-

mages

pretation. Indeed, this is a case of first impression and

the Secretary’s determination has only been recently made

notwithstanding the fact that the N.T.D. has been in exis-

tence for nearly forty (40) years. The Defendants sub-

mit that when the testimony of the only government wit-

ness who testified is analyzed, it is clear that the Secre-

tary’s interpretation should be accorded no deference what-

soever.

Mr. Jones testified in a most conclusory manner as to

the skeletal investigation done by his office before ,he

reached the interpretation’ that the N.T.D. is a local.

Yet, Mr. Jones did not conduct a complete investigation

before reaching his unsupported conclusion. Even though

the Defendants contend that the N.T.D. is a Division of the

International Brotherhood, like the other four Divisions,

Jones admitted that he was not aware of the functions of

any of the Divisions of the International Brotherhood, nor

the duties of any of the International Representatives as-

signed to those Divisions. He did not know whether or not

N.T.D. International Representatives had the same duties,

responsibilities and positions as the International Repre-

sentatives assigned to the other Divisions. By contrast,

extensive testimony was introduced by the Defendants

which demonstrated conclusively that the N.T.D. Inter-

national Representatives are virtually identical in function,

purpose and duties as their counterparts in the other Divi-

sions, and that they have very little in common with the

Business Agents in construction locals. This is most im-

portant because no one, including the Secretary of Labor,

has ever contended that any of the other Divisions of the

1. Of course, the Secretary of Labor has not actually made

a determination in this case. The statutory interpretation urged

here by the Plaintiff was actually made by his Area Adminis-

trator, Mr. Jones.

International Brotherhood is a labor organization. The

evidence shows that the N.T.D. is exactly what it claims

to be, a division, and not a local.

In Illinois Malleable Iron Company, 127 N.L.R.B. 1509

(1960), supplemental opinion, Appleton Electric Co., 129

N.L.R.B. 1347 (1961), enf. denied on other grounds sub

nom., N.L.R.B. v. Appleton Electric Company, 296 F.2d

202 (7th Cir. 1961), the National Labor Relations Board

ruled that the foundry department of the United Auto

Workers was an “administrative arm” of the U.A.W. and,

thus, not a “labor organization.” The foundry department

assisted the U.A.W., inter alia, in the organization of unor-

ganized foundries and assorted “foundry problems.” The

NLRB ruled that the foundary department was “an in-

ternal and administratively created part of the interna-

tional” and, thus, was not a separate labor organization.

127 N.L.R.B. at 1510. The Defendants submit that this

Court should make the same finding with regard to the

National Transient Division.

The Tenth Circuit’s principal criticism of the District

Court’s finding that the N.T.D. is not a local was that the

District Court overemphasized the fact that local unions

are confined to limited geographic areas. It states that the

District Court instead should have analyzed the structure

of the N.T.D. and then should have concluded that it was

similar to a local. Of course, this ignores all of the evidence

in the record which indicates that structurally the N.T.D.

is exactly the same as the other Divisions of the Interna-

tional Brotherhood. Yet, in the only case cited by the

Plaintiff for this proposition, Schultz v. Employees’ Federa-

tion, 74 L.R.R.M. (BNA) 2140, 2143 (S.D. Tex. 1970), the

Court specifically held that the labor organization involved

was “a single independent union whose membership is lim-

ited to employees of one division of a single employer with-

in a limited geographic area.” Thus, the factor which the

Plaintiff contends should not be considered (geographic

proximity) in this case was a paramount factor to the

Court in the Schultz v. Employees’ Federation case, the

only case upon which Plaintiff relied for his contention.

The evidence clearly indicates that the N.T.D. is not

a local labor organization. The Court of Appeals erred

when it disregarded that evidence.

Furthermore, the N.T.D. cannot meet the requirements

of the International Constitution for the operation of a

local or for the conduct of the election which the Plaintiff

seeks. Therefore, by sustaining Plaintiff’s claim that the

N.T.D. is a local labor organization which must conduct

elections, the Court of Appeals effectively rewrote the

Constitution of the International Brotherhood. However,

the Court has no authority to do so. United Brotherhood

of Carpenters & Joiners v. Sidell, 552 F.2d 1250 (7th

Cir.), cert. denied, 434 U.S. 862 (1977); Vestal v. Hoffa,

451 F.2d 706 (6th Cir.), cert. denied, 406 U.S. 934 (1971);

Cleveland Orchestra Commission v. Cleveland Federation

of Musicians, 303 F.2d 229 (6th Cir. 1962); Strong v. Sheet

Metal Workers International Association, 90 L.R.R.M.

(BNA) 2795 (N.D. Cal. 1974); Local 6256 v. United Mine

Workers of America, 87 L.R.R.M. (BNA) 2191 (N.D. Ala.

1973), aff'd without opinion, United Mine Workers Local

6256 v. United Mine Workers, 491 F.2d 1406 (5th Cir. 1974).

For, as the Second Circuit stated in Gurton v. Arons, 339

F.2d 371 (2d Cir. 1964), “the provisions of the LMRDA

were not intended by Congress to constitute an invitation

to the Courts to intervene at will in the internal affairs

of unions.”

Likewise, in Schuchardt v. Millwright and Machinery

Erectors Local Union No. 2834, 380 F.2d 795 (10th Cir.

1967), the Tenth Circuit stated that the Act does not pur-

port to project absolute judicial control into the internal

management of unions. And, it also stated in Williams v.

International Typographical Union, 423 F.2d 1295 (10th

Cir.), cert. denied, 400 U.S. 824 (1970):

“We believe that Congress did not intend the Act to

be an invitation to tne Courts to intervene at will

in the internal affairs of unions and that ‘[g]eneral

supervision of unions by the Courts would not con-

tribute to the betterment of unions or their members

or to the cause of labor management relations.’ ”

Id., at 1297, quoting Gurton v. Arons, 339 F.2d 371, 375

(2d Cir. 1964).

It is respectfully submitted that the Supreme Court

should grant this Petition for Writ of Certiorari and should

enforce the foregoing policy enunciated by the Tenth Cir-

cuit by reversing that Court’s decision below.

III. The Question Presented By The Petition Is One

Involving An Important Question Of Law Decided

By The Supreme Court To Which The Lower

Courts’ Decisions Are In Direct Conflict.

The Supreme Court has stated that a court shall not

grant an order which will require a party to do that which

is impossible. Virginian Railroad Company v. System Fed-

eration, 300 U.S. 515 (1937); see also, 42 Am.Jur.2d In-

junctions, § 37 (1969). In this case, the Court of Appeals

has ruled that the N.T.D. must comply with the election

requirements of Section 401, 29 U.S.C. § 481, applicable

to local labor organizations. Such requirements mandate

that an election be held once every three years and that

notice of such election be mailed to each member at least

fifteen days prior to the election. 29 U.S.C. § 481(e).

However, the N.T.D. has demonstrated factually that,

because of the constant travelling of N.T.D. members, the

N.T.D. cannot conduct an election which would comply

with the Secretary’s regulations. The evidence stands un-

contradicted that the N.T.D. cannot deliver notices of nom-

inations or election ballots to even one-half of its members

within the time limits required by the Constitution and

the LMRDA. In the only election ever conducted by the

N.T.D., that of electing delegates to the 1981 constitution

convention, only fifteen percent of the N.T.D. members

voted. Yet, the Court of Appeals attempted to dismiss

this argument as speculative.

Yet, apparently realizing that the uncontradicted evi-

dence produced by the N.T.D. at trial established this

argument to be fact, the Court of Appeals changed gears

and noted that even if the argument was true, the Act

does not require actual receipt ‘of the notices and ballots

by the members—it simply requires that the notices and

ballots be sent to all members at their last known ad-

dresses.

This statement by the Court of Appeals is most telling.

It shows that the Secretary and the Court of Appeals

have greatly exalted form over substance. One of the

main purposes of the LMRDA is to guarantee free par-

ticipation in democratic elections for union members. The

Appellate Court’s decision in this case does nothing toward

accomplishing the goal of guaranteeing free participation

in democratic elections for N.T.D. members. When an

individual has less than a fifty percent chance of even

receiving notice of an election, he cannot possibly be con-

sidered a full participant in democratic procedures. Indeed.

the Court of Appeals appears to be willing to sanction an

election where notice was mailed to every union member,

a“

but was received by none. Such a construction of § 481(e)

renders attempted compliance with Title IV an exercise

in futility.

By requiring the N.T.D. to mail notices to members,

who by the transitory nature of their work are unlikely

to receive them, the Court of Appeals has opened a flood

gate of potential lawsuits brought by individual N.T.D.

members who will not receive notice of any election. Cases

were brought to the attention of the lower courts where

union elections have been held invalid when only a small

percentage of members of the union did not receive notice

of the election. See e.g. Wirtz v. Local 169, International

Hod Carriers, 246 F. Supp. 741 (D. Nev. 1965) (Secretary

overturned election where 30 members of 512 total mem-

bers did not receive notice); Wirtz v. United Brotherhood

of Carpenters and Joiners, 285 F. Supp. 455 (N.D. Cal.

1968) (Secretary overturned election where 382 members

of 2700 total members did not receive notice). The un-

contradicted evidence in this case shows that most N.T.D.

members could not receive the required notices. Thus,

the N.T.D.’s inability to hold elections which comply with

the Act is not speculative but is, unfortunately, very real.

Notwithstanding the uncontroverted evidence that

the N.T.D. could not comply with either the literal re-

quirements of Section 401 of Title IV, 29 U.S.C. § 481, or

the spirit of Title IV in guaranteeing free and democratic

elections to all, assuming that the right to such an election

has been established, the District Court and Court of

Appeals nonetheless ordered such “compliance”. Thus,

the mandate is in direct conflict with the Supreme Court

ruling that no Court shall issue an order the compliance

with which is impossible. Therefore, the decision of the

Appellate Court should be reversed.

CONCLUSION

For the aforementioned reasons, it is respectfully

requested that this Petition For Writ Of Certiorari be

granted.

Respectfully submitted,

By Sreve A. J. Buxaty

of Brake & Unie, P.A.

475 New Brotherhood Building

Eighth and State Avenue

Kansas City, Kansas 66101

(913) 321-8884

Counsel of Record for Petitioners,

Member of Bar of Supreme Court

of United States

By Witui1am S. Rossins, Jr.

of Brake & Unie, P.A.

475 New Brotherhood Building

Eighth and State Avenue

Kansas City, Kansas 66101

(913) 321-8884

Member of Bar of the Supreme Court

of Kansas

APPENDIX

APPENDIX A

(Filed June 15, 1984)

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

No. 82-2104

No. 82-2121

RAYMOND J. DONOVAN,

Secretary of Labor,

Plaintiff-Appellant,

Cross-Appellee,

Vv.

NATIONAL TRANSIENT DIVISION, INTERNATIONAL

BROTHERHOOD OF BOILERMAKERS, IRON SHIP

BUILDERS, BLACKSMITHS, FORGERS AND

HELPERS, et al.,

Defendants-Appellees,

Cross-Appellants.

Appeal from the United States District Court

For the District of Kansas

(D. C. Civil Action No. 79-2074)

Steven J. Mandel, Attorney (T. Timothy Ryan, Jr.,

Solicitor of Labor, Karen I. Ward, Associate Solicitor,

Kerry L. Adams, Counsel for Appellate Litigation,

and Tedrick A. Housh, Jr., Regional Solicitor, with

him on the brief), U.S. Department of Labor, Wash-

ington, D.C., for Plaintiff-Appellant and Cross-

Appellee.

Steve A. J. Bukaty of Blake & Uhlig, Kansas City, Kansas,

for Defendants-Appellees and Cross-Appellants.

Before McWILLIAMS, LOGAN, and SEYMOUR, Circuit

Judges.

LOGAN, Circuit Judge.

The Secretary of Labor brings this action to compel

defendant International Brotherhood of Boilermakers, Iron

Ship Builders, Blacksmiths, Forgers and Helpers, AFL-

CIO, CLC (International) and defendant National Transi-

ent Division (NTD) to comply with the requirements of

the Labor-Management Reporting and Disclosure Act, 29

U.S.C. §§ 401-531 (LMRDA). NTD, one of five divisions

of the International, operates in forty-one states and con-

sists of approximately 8,000 craftsmen who travel through-

out the United States erecting steel tanks and related struc-

tures. Unlike the other four divisions of the International,

NTD has no separate local organizations. Rather, NTD

was established by the International Constitution “for the

purpose of giving status to and servicing those members

who by the transient nature of their employment and their

coverage under the NTD Agreement have no fixed perma-

nent place of employment and who thus are unable to

carry membership in a Local Lodge or participate in its

activities.” Pl. Ex. 4. A national director and eight dis-

trict representatives administer NTD. These officials are

appointed by the International president and serve at his

pleasure. NTD has never conducted an election of officers,

has never adopted and filed with the Secretary a constitu-

tion and bylaws, and has never filed any financial reports

with the Secretary.

After several NTD members filed a complaint with

the Secretary protesting the failure of NTD to conduct

an election of officers, the Secretary brought this action.

He contends that NTD is a “local labor organization” with-

in the meaning of 29 U.S.C. §§ 402(i), 402(j), and 481(b)

and thus has'violated 29 U.S.C. § 481(b) by failing to hold

an election of officers every three years by secret ballot

and 29 U.S.C. §§ 431(a), 431(b), and 437(b) by failing to

adopt and file a constitution and bylaws and by failing to

file reports with the Secretary. The Secretary alleges that

the International violated 29 U.S.C, § 481(e) by failing to

ensure that NTD members had the opportunity to nom-

inate and vote for candidates.

After trial, the district court held that NTD is a labor

organization within the meaning of 29 U.S.C. § 402(i) and

402(j) and therefore must comply with the reporting and

disclosure requirements of the LMRDA. The court con-

cluded, however, that NTD is a “national” rather than a

“local” labor organization. Hence, according to the trial

court’s ruling, NTD must conduct elections of officers at the

five-year intervals prescribed by 29 U.S.C. § 481(a) rather

than at the three-year intervals prescribed by 29 U.S.C.

§ 481(b). Defendants appeal, contending that the dis-

trict court lacked subject matter jurisdiction under 29

U.S.C. § 482(b) and that NTD is not a labor organization

for the purposes of the LMRDA. The Secretary cross-

appeals, contending that NTD is a local rather than national

labor organization for the purposes of 29 U.S.C. § 481.

We first address defendants’ contention that the dis-

trict court lacked subject matter jurisdiction under 29

U.S.C. § 482(b). Under 29 U.S.C. § 481, international, na-

tional, and local labor organizations must hold periodic

elections of officers by secret ballot. Section 482(a) per-

mits a member of a labor organization to file a complaint

with the Secretary alleging a violation of § 481. Section

482 (b) provides:

“The Secretary shall investigate such complaint

and, if he finds probable cause to believe that a vio-

lation of this subchapter has occurred and has not been

remedied, he shall, within sixty days after the filing

of such complaint, bring a civil action against the labor

organization as an entity in the district court of the

United States in which such labor organization main-

tains its principal office to set aside the invalid elec-

tion, if any, and to direct the conduct of an election

or hearing and vote upon the removal of officers under

the supervision of the Secretary and in accordance

with the provisions of this subchapter and such rules

and regulations as the Secretary may prescribe. The

court shall have power to take such action as it deems

proper to preserve the assets of the labor organiza-

tion.”

Defendants contend that § 482 authorizes the Secre-

tary to bring suit only to set aside an invalid election.

They emphasize that § 482(a) states, “The challenged elec-

tion shall be presumed valid pending a final decision there-

on (as hereinafter provided) and in the interim the affairs

of the organization shall be conducted by the officers

elected or in such other manner as its constitution and

bylaws may provide.” (emphasis added). Defendants also

note that § 482(b) empowers the Secretary to bring an

action to “set aside the invalid election.” Thus, defendants

assert, the text of the statute indicates that the Secretary

may not bring an action against NTD under § 482 because

NTD has never conducted an election of officers.

Defendants’ argument is unpersuasive. Section 482 (a)

permits a labor organization member to file a complaint

“alleging the violation of any provision of section 481.”

(emphasis added). After investigating the complaint, the

Secretary may bring a civil action “to set aside the in-

valid election, if any.” 29 U.S.C. § 482(b) (emphasis

added). Section 482(c) states that when “an election has

not been held within the time prescribed by section 481...

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

direct the conduct of a new election.” (emphasis added).

Thus, the text of the statute clearly indicates that Con-

gress contemplated an action pursuant to § 482 when a

labor organization fails to conduct an election. Moreover,

this construction fully comports with the basic objective

of the statute: to guarantee democratic union elections

“modeled on ‘political elections in this country.’” Local

3489, United Steelworkers v. Usery, 429 U.S. 305, 309

(1977) (quoting Wirtz v. Hotel, Motel & Club Employees

Union, Local 6, 391 U.S. 492, 504 (1968) ).

Defendants also rely on a number of cases in con-

tending that the Secretary may not proceed under § 482

unless the labor organization has conducted an election.

Driscoll v. International Union of Operating Engineers,

Local 139, 484 F.2d 682 (7th Cir. 1973), cert. denied, 415

U.S. 960 (1974), is illustrative. In Driscoll, a union mem-

ber brought suit before an election challenging the union’s

practice of requiring every candidate for union office to

execute an affidavit stating that he was not a Communist.

The court upheld the district court’s dismissal of the com-

plaint, in part because § 402 remedies are unavailable until

after the union holds the scheduled election. Id. at 688.

Driscoll and similar cases are. readily distinguishable

from the case at bar. Congress limited relief under § 402

to post-election relief when an election is scheduled in order

to prevent individuals or the government from blocking

or delaying the election. See Dunlop v. Bachowski, 421

U.S. 560, 568-70 (1975); Calhoon v. Harvey, 379 U.S. 134,

140 (1964). That policy is not implicated when, as here,

the union does not intend to conduct elections. Although

courts have not squarely addressed the issue before us, they

have upheld actions under § 482 when a union failed to

hold an election within the time limits that § 481 pre-

scribes. See Marshall v. Local Union 1374, International

Association of Machinists, 558 F.2d 1354, 1358 (9th Cir.

1977); Hodgson v. Union de Empleados de los Super-

mercados Pueblo, 388 F. Supp. 1026 (D. P.R. 1974). We

therefore hold that § 482 authorizes the Secretary to bring

suit against a labor organization that fails to hold pe-

riodic elections prescribed by § 481.

We next address defendants’ assertion that NTD is not

a “labor organization” within the meaning of 29 U.S.C.

§ 402(i). We note at the outset that Congress gave ex-

clusive enforcement authority under Title IV of the Act to

the Secretary of Labor in order “to utilize the special

knowledge and discretion of the Secretary.” Calhoon v.

Harvey, 379 U.S. at 140. Thus, we must defer to the Secre-

tary’s interpretation of the statute “unless there are com-

pelling indications that it is wrong.” EJ. Du Pont de

Nemours & Co. v. Collins, 432 U.S. 46, 55 (1977); see Cross

v. United Mine Workers, 353 F. Supp. 504, 508 (S.D. I.

1973).

Section 402 (i) provides in relevant part:

“Labor organization’ means a labor organization

engaged in an industry affecting commerce and in-

cludes any organization of any kind, any agency, or

employee representation committee, group, association,

or plan so engaged in which employees participate

and which exists for the purpose, in whole or in part,

of dealing with employers concerning grievances, labor

disputes, wages, rates of pay, hours, or other terms or

conditions of employment... .”

Defendants argue that many NTD members cannot attend

NTD meetings regularly or have substantial direct contact

with the organization because of the transient nature of

their work. Thus, defendants contend, NTD is not a labor

organization subject to the LMRDA because its members

do not “participate” in the organization; rather, NTD is

merely a “division” of the International.

In order to effectuate the purposes of the Act, Con-

gress defined labor organization broadly “to provide com-

prehensive coverage of labor organizaticns engaged in any

degree in the representation of employees or administra-

tion of collective bargaining agreements.” S. Rep. No.

187, 86th Cong., lst Sess. 53, reprinted in 1959 U.S. Code

Cong. & Ai. News 2318, 2370 (emphasis added); see also

29 C.F.R. § ~51.2. Thus, if the organization represents its

members rega:ling grievances, labor disputes, or terms

or conditions of es.ployment, the organization is subject to

the Act regardless wf its formal attributes, see Brennan v.

United Mine Workers, 475 F.2d 1293, 1295-96 (D.C. Cir.

1973); 29 C.F.R. § 451.3, or the extent of its representative

activities. See National Educational Association v.

Marshall, 100 L.R.R.M. (BNA) 2565 (D.D.C. 1979).

The evidence indicates that NTD officials and mem-

bers negotiate collective bargaining agreements with em-

ployers for the benefit of NTD members. Although these

agreements are not complete collective bargaining agree-

ments in themselves, they establish standards regarding

labor disputes, grievances, hours, and other terms and

conditions of employment. Furthermore, NTD district

representatives provide a number of services for NTD

members, including handling grievances under the agree-

ment and distributing publications. NTD holds meetings

in which its members participate and collects dues from

its membership. This evidence clearly shows that NTD

is an organization in which employees participate and

which represents its members concerning grievances, ‘bor

disputes, and other terms and conditions of employment.

NTD admits that it is involved in an industry affecting

commerce. Accordingly, we hold that NTD is a labor

organization within the meaning of § 402(i).

III

The Secretary contends that the trial court erred in

concluding that NTD is a “national” rather than a “local”

labor organization for the purposes of 29 U.S.C. § 481.

Noting that the LMRDA does not define “national” or

“local,” the district court reasoned that those terms refer

to the geographical boundaries of the labor organization.

Thus, since NTD operates in forty-one states, the district

court held that NTD is a national labor organization.

Defendants add that NTD is unable to hold monthly meet-

ings that most NTD members can attend or to operate

a hiring hall, two functions that many locals perform.

The Secretary, on the other hand, relies on 29 C.FR.

§ 452.11. That regulation states that an organizational

unit’s characterization as a local or national body is “deter-

mined by its functions and purposes rather than the formal

title by which it is known or how it classifies itself.” The

Secretary contends that NTD is functionally and struc-

turally a local labor organization notwithstanding the

geographical breadth of its operations.

Since the LMRDA defines neither “local” nor “na-

tional,” we must construe those terms in light of their

ordinary meaning, congressional purpose, and the deference

accorded to the Secretary’s construction of the Act. The

typical union structure is a three-tier hierarchy. T. Kheel,

Labor Law § 3.01 (18 Business Organizations 1980). Be-

low the AFL-CIO is the national or international union,

which preforms such functions as supervising locals, main-

taining legal departments, and providing public relations

staffs and liaison offices with government departments.

See id. at § 3.02[2]. The national or international organiza-

tion is made up of subordinate locals. Generally, local

labor organizations provide day-to-day services to the

membership, such as policing collective bargaining agree-

ments, disposing of grievances, collecting membership dues

and disciplining dissident members. See id. at § 3.03[1];

Shultz v. Employees’ Federation, 74 L.R.R.M. (BNA) 2140,

2143 (S.D. Tex. 1970). Although a local usually represents

workers located within close geographic proximity, it may

simply represent workers in a single bargaining unit. See

A. Goldman, Labor Law and Industrial Relations in the

United States of America 182-83 (1979).

Congress’ purpose in requiring that labor organizations

conduct elections under the LMRDA was to ensure that

union officers would be responsive to the needs and desires

of union members. See S. Rep. No. 187, 86th Cong., Ist

Sess. 19-20, reprinted in 1959 U.S. Code Cong. & Ad. News

2318, 2336. When it required elections every three years

for locals but only every five years for national or inter-

national organizations, Congress evidently considered it

especially important to ensure the accountability of those

officials with whom union members have the most direct

contact. Thus, it makes little sense to focus exclusively on

‘

Foe atl

the geographical proximity of the organization’s member-

ship in determining whether a labor organization is a local

within the meaning of § 481. Rather, congressional intent

indicates that the focus should be on the relationship be-

tween the organization and its members. Accordingly, we

agree with the Secretary that we must focus on NTD’s

functions and structure in order to determine whether

it is a local or a national labor organization.

Given its structure and functions, we find no reason

to reject the Secretary’s characterization of NTD as a local

labor organization. NTD is subordinate to the International

and has no subordinate organizational units. Thus, it has

the relatively simple organizational structure characteristic

of local labor organizations. See Shultz v. Employees’ Fed-

eration, 74 L.R.R.M. (BNA) at 2143. It pays a “per capita”

tax to the International, which is a tax locals typically

pay to their parent national or international organizations.

See King v. Randazzo, 234 F. Supp. 388, 394 (E.D.N.Y.

1964), aff'd 346 F.2d 307 (2d Cir. 1965). Most important,

NTD performs the functions of a local. NTD officials

negotiate the basic terms of collective bargaining agree-

ments, ensure that those agreements are enforced, han-

dle grievances, collect dues from members, maintain out-of-

work lists, hold meetings at which members express their

views, and provide a number of other services directly to

NTD members. We therefore find that NTD is functionally

and structurally a local labor organization.

Finally, defendants contend that NTD should be ex-

empt from the election requirements of 29 U.S.C. § 481

because it is unable to comply with those provisions.

Specifically, defendants contend that the transience of

All

NTD members renders NTD unable to comply with § 481

(e), which requires the labor organization to mail notice

of an election to each member within fifteen days before

the election.

Defendants’ argument is unconvincing. Section 481(b)

requires each local to conduct officer elections at least

once every three years. If it fails to do so, § 482(c) re-

quires the court to direct an election supervised by the

Secretary. The LMRDA contains no exception for in-

stances in which compliance with these requirements is

difficult, and we are unwilling to imply one given the

clear congressional mandate. Cf. Wirtz v. Local Union No.

1622, 285 F. Supp. 455, 465 (N.D. Cal. 1968) (Congress

did not give courts the power to determine whether elec-

tion would serve the public interest). Moreover, defen-

dants have not shown that NTD is unable to comply with

the Act’s election provisions. Section 481(e) merely re-

quires that the labor organization mail notice of the elec-

tion to its members at their last known home address; it

does not require that the notice actually reach them. NTD

presently manages to elect delegates to the International

convention and to collect dues from its members. Thus,

NTD’s inability to hold elections complying with the

LMRDA is speculative at best.

We affirm the opinion of the district court insofar as

it held that it had subject matter jurisdiction over this

action and that NTD is a labor organization within the

meaning of 29 U.S.C. § 402(i). We reverse that portion

of the district court’s opinion holding that NTD is a na-

tional labor organization subject to 29 U.S.C. § 481(a) be-

cause we conclude that NTD is a local labor organization

for the purposes of 29 U.S.C. § 481(b).

AFFIRMED IN PART and REVERSED IN PART.

Sale

Al2

APPENDIX B

(Filed July 15, 1982)

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF KANSAS

CIVIL ACTION No. 79-2074

RAYMOND J. DONOVAN, Secretary of Labor,

United States Department of Labor,

Plaintiff,

NATIONAL TRANSIENT DIVISION, INTERNATIONAL

BROTHERHOOD OF BOILERMAKERS, IRON SHIP

BUILDERS, BLACKSMITHS, FORGERS AND

HELPERS, et al.,

Defendants.

MEMORANDUM AND ORDER

This is an action brought by the Secretary of Labor

under the Labor-Management Reporting & Disclosure Act,

29 U.S.C. §401, et seg. [hereinafter “LMRDA”] for a judg-

ment directing defendant International Brotherhood of

Boilermakers, Iron Ship Builders, Blacksmiths, Forgers

and Helpers, AFL-CIO, CLC [hereinafter “International” ]

to insure that defendant National Transient Division

(hereinafter “NTD”] of the International conducts an

election of officers under plaintiff's supervision and files

and maintains records with the Secretary. A trial to

the Court was held on this matter on June 6, 7 and 8, 1982.

Following submissions and arguments by the parties, the

Al3

Court makes the following findings of fact and conclusions

of Jaw.

Defendant NTD is one of five divisions of the Inter-

national as established by the International constitution.

Unlike the other four divisions, NTD has no local or-

ganizations. Rather, NTD was established for the purpose

of giving status to those members who, by transient nature

of their jobs, have no fixed place of employment, and

who, thus, are not able to carry membership in a local

lodge or participate in its activities.

The NTD is administered by a national director and

eight district representatives who report directly to the

national director. These officials are appointed by the

International president to serve at his pleasure. The dis-

trict representatives supervise the activities of the NTD

in their respective regions nationwide except for those

areas covered by the Nine Western States Field Construc-

tion Agreement. These officials, together with other NTD

members, negotiate a collective bargaining agreement

known as the NTD Articles of Agreement for the benefit

of the NTD membership. This agreement covers such

matters as labor disputes, grievances, hours and other

terms or conditions of employment. The NTD Agreement

is not a complete collective bargaining agreement in itself,

as it relies upon the International and local agreements

for wage compensation and other employee benefits.

The NTD consists of approximately eight thousand

members, nation-wide, who travel throughout the United

States and other countries working on the construction

of steel tanks and related structures. NTD members per-

form highly skilled and specialized boilermaker crafts.

Testimony throughout the trial was consistent that these

workers are highly-motivated, efficient craftsmen who

Al4

take pride in their work. Hired and trained directly by

the NTD employers, members travel from job to job with

specialized in the industry allows the NTD contractor to

accurately predict his costs because he knows the skills

and abilities of his employees and he does not have to

certify members on each job. At trial, the plea of the

contractors was not to change the efficient operation of

the union.

On May 31, 1978, some members of NTD protested

to the international president about the failure of NTD to

elect its own officers. When the International president's

response failed to satisfy them, the members appealed

their grievance to the International Executive Council.

Failing to get a final decision from the International

within three months, the complainants filed a complaint

with the Labor Department. The Secretary filed this action

on March 29, 1979.

The Court has previously ruled upon the matter of

jurisdiction in its Memorandum and Order on the motion

for summary judgment. Defendants have presented no

new arguments in support of their contention that the Court

does not have jurisdiction over this action; therefore, the

Court finds that jurisdiction is proper.

The issues before the Court are whether defendant

NTD is a “labor organization” within the meaning of 29

U.S.C. §402(i) and (j), and whether it is a local labor

organization as used in 29 U.S.C. §481. Section 402, Title

29, United States Code, provides, in part:

“(i) ‘Labor organization’ means a labor organiza-

tion engaged in an industry affecting commerce and

includes any organization of any kind, any agency, or

Al5

employee representation committee, group, association,

or plan so engaged in wnich employees participate

and which exists for the purpose, in whole or in part, of

dealing with employers concerning grievances, labor

disputes, wages, rates of pay, hours, or other terms

or conditions of employment, and any conference,

general committee, joint or system board, or joint

council so engaged which is subordinate to a national

or international labor organization, other than a State

or local central body.

“(j) A labor organization shall be deemed to be

engaged in an industry affecting commerce if it—

“(2) although not certified, is a national or

international labor organization or a local labor organi-

zation recognized or acting as the representative of

employees of an employer or employers engaged in an

industry affecting commerce; or

“(4) has been chartered by a labor organization

representing or actively seeking to represent em-

ployees within the meaning of paragraph (1) or (2)

as the local or subordinate body through which such

employees may enjoy membership or become affiliated

with such labor organization; or

“(5) is a conference, general committee, joint or

system board, or joint council, subordinate to a na-

tional or international labor organization, which in-

cludes a labor organization engaged in an industry

affecting commerce within the meaning of any of

the preceding paragraphs of this subsection, other than

a State or local central body.”

ie ee —-

Al6

To fall within the ambit of this chapter, a “labor

organization” must deal with an employer and act as

representative of employees of an employer. Local 1498,

Am, Fed. of G. Emp. v. American Fed. of G. Emp., 522

F.2d 486 (3rd Cir. 1975). The fact that an organization

or division does not have its own constitution does not

preclude it from being a “labor organization” under the

LMRDA. Roddy v. United Transp. Union, 479 F.Supp. 57

(N.D. Ala. 1979), aff'd. 608 F.2d 522 (5th Cir. 1979).

Similarly, the fact that the division is merely an adminis-

trative arm of the International does not prevent it from

being classified as a “labor organization” in its own right

if it meets the criteria set by the LMRDA. Cross v. United

Mine Workers of America, 353 F.Supp. 504 (S.D. II.

1973); Monborne v. United Mine Workers of America,

342 F.Supp. 718 (W.D. Pa. 1972). Here, the NTD deals

directly with the employers who become signatories to the

NTD Articles of Agreement. The NTD district representa-

tives handle grievances under the NTD Articles of Agree-

ment for NTD members. Defendants do not dispute that

the NTD is an organization engaged in an industry affect-

ing commerce under the definition of 29 U.S.C. §402(j).

Therefore, under the terms of 29 U.S.C. §402(i), NTD is a

“labor organization.”

Defendants, who offer little resistance to the cate-

gorization of NTD as a “labor organization,” seriously dis-

pute plaintiff’s contention that NTD is a “local” labor

organization. The term “local” is not defined within the

LMRDA. Plaintiff asserts that the similarity of functions

between generally-recognized locals and NTD in the areas

of handling grievances and collecting dues establish NTD

as a “local.” Treaties define a local as a basic unit which

extends to employers in a defined geographical area. See

Bok and Dunlop, Labor in American Community, 150

” ON ae TT ee a ee ee ee ee eee ee ee

Al7

(Simon and Schuster, 1970); Goldman, Labor Law and In-

dustrial Relations in the U.S.A., 182 (1979); Sloane and

Witney, Labor Relations, 3d Ed. 1971 (Prentice Hall, Inc.

1977). The evidence points out that NTD is not a local

labor unit. The word “national” in its title clearly defines

the geographical boundaries of NTD. The transient nature

of the work necessitated the shift of NTD from a Chicago

local to a national organization. Despite the similarities in

function, the Court cannot find that NTD is a “local” labor

organization.

Accordingly, the Court finds that NTD is a national

labor organization and must comply with the requirements

of the LMRDA as they apply to national labor organiza-

tions. The Court would note that, in making this finding,

it does not imply that any prejudice has resulted from the

present method of appointing officers, merely that such a

procedure is prohibited by the LMRDA.

Defendants have made various arguments that NTD

could not hold elections, and thus the Court cannot order

them to comply with the Act. Such arguments are without

merit as to a determination that NTD must follow the pro-

visions of the Act. See Monborne v. United Mine Workers

of America, supra, 342 F.Supp. 718. Congress has deter-

mined that labor organizations must hold elections and

make certain reporting requirements. It is not within the

Court’s province to exempt a labor organization from fol-

lowing the LMRDA requirements because compliance is

difficult. Such arguments would be more appropriately

taken before the Congress.

Further, the Court finds that defendants have made

no argument that a national election is impossible. Such

elections, outside the initial election, would be no more

difficult than the present International election. In fact,

the two elections coulc be held jointly.

Ai8

In addition, the Court finds no merit to defenuants’

argument that elections and reporting will destroy the

NTD. There is simply no evidence to show that elected

officers will in any way change the structure or purpose of

the labor organization as it is now run by appointed officers.

The only difference is that the officers and representatives

will be responsive to the members themselves, as opposed

to only the International president.

IT IS "Y THE COURT THEREFORE ORDERED that

judgment is hereby entered for plaintiff in accordance with

the foregoing. IT IS FURTHER ORDERED that the Na-

tional Transient Division of the International Brotherhood

of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers

and Helpers, AFL-CIO, CLC is a national labor organiza-

tion subject to the provisions of the Labor-Management

Reporting & Disclosure Act, 29 U.S.C. §401, et seq., and

must act in accordance with those provisions under the

supervision of the Secretary of Labor.

IT ISSO ORDERED.

DATED: This 15th day of July, 1982, at Kansas City,

Kansas.

/s/ Dale E. Saffels

Dale E. Saffels

United States District Judge

aes

ee ey eee ee Pe ee Se ee eee ee Siabeat oa

Alg

APPENDIX C

(Filed December 31, 1981)

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF KANSAS

CIVIL ACTION No. 79-2074

RAY MARSHALL, Secretary of Labor, United States

Department of Labor,

Plaintiff,

Vv.

NATIONAL TRANSIENT DIVISION, INTERNATIONAL

BROTHERHOOD OF BOILERMAKERS, IRON SHIP

BUILDERS, BLACKSMITHS, FORGERS AND HELPERS,

AFL-CIO, et al.,

Defendants.

MEMORANDUM AND ORDER

This matter comes before the Court upon plaintiff's

motion for summary judgment, plaintiff’s motion for leave

to file an amended complaint, and defendants’ motion to

dismiss. Defendants have questioned the Court’s jurisdic-

tion under the Labor-Managemen Reporting & Disclosure

Act, 29 U.S.C. §481, et. seq. [hereinafter the Act]. The

Court will consider those arguments first.

Defendants allege that the Court lacks jurisdiction

over the subject matter raised in Count I, that Count I

cannot be properly brought under Title IV of the Act,

and that Count I fails to state a cause of action. The

asserti0ms are all based upon the language of 29 U.S.C.

§482(b), which reads:

A20

“(b) The Secretary shall investigate such com-

plaint and, if he finds probable cause to believe that

a violation of this subchapter has occurred and has

not been remedied, he shall, within sixty days after

the filing of such complaint, bring a civil action against

the labor organization as an entity in the district court

of the United States in which such labor organization

maintains its principal office to set aside the invalid

election, if any, and to direct the conduct of an election

or hearing and vote upon the removal of officers under

the supervision of the Secretary and in accordance

with the provisions of this subchapter and such rules

and regulations as the Secretary may prescribe. The

court shall have power to take such action as it deems

proper to preserve the assets of the labor organization.”

In support of their motion, defendants rely on cases

involving questions of whether a suit is properly brought

by a private union member or the Secretary of Labor,

and whether a pre- or post-election suit is proper. The

cases cited by defendants have not considered the issue

of whether the Secretary may bring an action when no

election has been held.

The Court agrees with counsel that this is a case of

first impression. In a somewhat similar case, Marshall v.

Local U. 1374, Int. Ass’n of Mach., 558 F.2d 1354 (9th Cir.

1977), the Court held that 29 U.S.C. §481(b) was violated

where the incumbents were automatically re-elected when

a quorum was not obtained at the nomination meeting.

No question was considered on the Secretary’s authority

to bring an action under §482(b) on grounds which have

been raised in the case sub judice. In Tam v. Rutledge,

475 F.Supp. 559 (D. Hawaii 1979), Chief Judge King held

that the Secretary could proceed against the union to

A21

bring about an election despite the imposition of a

trusteeship over the local union.

These cases, though not on point, lead us to conclude

that the Secretary may bring an action under $482 to

enforce the provisions of §481(b), which require elections

to be held every three years. We find further support

in the language of §482(b), “to set aside the invalid elec-

tion, if any.” [Emphasis added.] Congress obviously con-

templated that at certain times, no election would be

held and the Secretary would be required to bring suit

“to direct the conduct of an election.” §482(b). Further,

such an interpretation supports the basic objective of Title

IV of the Act, as stated in Steelworkers v. Usery, 429 U.S.

305 (1977):

“. . . The basic objective of Title IV of the LMRDA

is to guarantee ‘free and democratic’ union elections

modeled on ‘political elections in this country’ where

‘the assumption is that voters will exercise common

sense and judgment in casting their ballots.’ [Wirtz v.

Hotel Employees, 391 U.S. 492 (1968)] 391 U.S., at

504. Thus, Title IV is not designed merely to protect

the right of a union member to run for a particular

office in a particular election. ‘Congress emphatically

asserted a vital public interest in assuring free and

democratic union elections that transcends the nar-

rower interest of the complaining union member.’

Wirtz v. Bottle Blowers Assn. [389 U.S. 463 (1968) ],

at 475; Wirtz v. Laborers’ Union [389 U.S. 477 (1968) ],

at 483. The goal was to ‘protect the rights of rank-

and-file members to participate fully in the operation

of their union through processes of democratic self-

government, and, through the election process, to keep

the union leadership responsive to the membership.’

Wirtz v. Hotel Employees, supra, at 497.”

429 U.S. at 309.

A22

In addition, this interpretation does not contravene

the purposes of Congress in naming the exclusive post-

election remedy as that of the Secretary’s:

“«'-. . Congress made suit by the Secretary the ex-

clusive post-election remedy for two principal reasons:

(1) to protect unions from frivolous litigation and un-

necessary judicial interference with their elections, and

(2) to centralize in a single proceeding such litigation

as might be warranted... .’, Trbovich v. Mine Work-

ers, 404 U.S. 528, 532 (1972). ‘. . . Congress intended

to prevent members from pressing claims not thought

meritorious by the Secretary, and from litigating in

forums or at times different from those chosen by the

Secretary.’ Id., at 536... .”

Dunlop v. Bachowski, 421 U.S. 560, 569-70 (1975).

We therefore conclude that defendants’ motion to dis-

miss must be denied.

Plaintiff seeks an order allowing him to amend the

complaint against the defendants. The Court finds that

defendants will not be prejudiced by the proposed amend-

ments, nor will additional discovery be necessitated.

Therefore, plaintiff's motion to amend will be granted.

Plaintiff further seeks summary judgment in his favor.

The Court is familiar with the standards governing a

summary judgment motion. Such a motion is to be denied

unless the moving party demonstrates entitlement to it

beyond a reasonable doubt. Madison v. Deseret Livestock

Co., 574 F.2d 1027, 1037 (10th Cir. 1978); Mustang Fuel

Corp. v. Youngstown Sheet & Tube Co., 516 F.2d 33, 36

(10th Cir. 1975). The Court must examine all the evi-

dence in the light most favorable to the party opposing

the motion. Mogle v. Sevier County School Dist., 540 F.2d

A23

478, 482 (10th Cir. 1976), cert. denied 429 U.S. 1121 (1977);

Frey v. Crankel, 361 F.2d 437, 442 (10th Cir. 1966). The

summary judgment remedy is a drastic one, and should

be applied with caution in order to preserve a litigant’s

right to trial. Machinery Center, Inc. v. Anchor National

Life Insurance Company, 434 F.2d 1, 6 (10th Cir. 1970).

Although we are generally impressed with the position

of plaintiff, we cannot say as a matter of law that no

genuine factual issues remain. Particularly, the Court

believes that factual issues remain concerning whether

defendant National Transient Division is a local labor or-

ganization. Therefore, plaintiff's motion for summary

judgment will be denied.

The Court finds, in light of these rulings, that the

trial of this matter should be continued from the trial

calendar of January 4, 1982, te the trial calendar of Feb-

ruary 8, 1982.

IT IS BY THE COURT THEREFORE ORDERED that

defendants’ motion to dismiss is hereby denied. IT IS

FURTHER ORDERED that plaintiff's motion to amend is

hereby granted. IT IS FURTHER ORDERED that plain-

tiff’s motion for summary judgment is hereby denied. IT

IS FURTHER ORDERED that this case be and hereby

is continued from the trial calendar of January 4, 1982,

until and to the trial calendar of February 8, 1982.

DATED: This 3lst day of December, 1981, at Kansas

City, Kansas. |

/s/ Dale E. Saffels

Dale E. Saffels

United States District Judge

A24

APPENDIX D

(Filed July 26, 1984)

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

MAY TERM—June 15, 1984

Before Honorable Robert H. McWilliams, Honorable James

K. Logan, and Honorable Stephanie K. Seymour, cir-

cuit Judges

Nos. 82-2104 and 82-2121

(D.C. No. Civ. 79-2074)

RAYMOND J. DONOVAN, Secretary of Labor,

U.S. Department of Labor,

Plaintiff-Appellant,

Cross-Appellee,

VS.

NATIONAL TRANSIENT DIVISION, INTERNATIONAL

BROTHERHOOD OF BOILERMAKERS, IRON SHIP

BUILDERS, BLACKSMITHS, FORGERS AND HELPERS,

AFL-CIO, CLC, and INTERNATIONAL BROTHERHOOD

OF BOILERMAKERS, IRON SHIP BUILDERS, BLACK-

SMITHS, FORGERS AND HELPERS, AFL-CIO, CLC,

Defendants-Appellees,

Cross-Appellants.

This cause came on to be heard on the record on appeal

from the United States District Court for the —.....000.....

ease REAL ah District of Kansas, and was argued by counsel.

A25

Upon consideration whereof, it is ordered that the

judgment of that court is affirmed in part. The judgment

is reversed in part. The cause is remanded to the United

States District Court for the District of Kansas for further

proceedings in accordance with the opinion of this court.

Howard K. Phillips, Clerk

By /s/ Robert L. Hoecker

Robert L. Hoecker

A26

APPENDIX E

MAY TERM—July 13, 1984

Before Honorable Oliver Seth, Honorable William J. Hol-

loway, Jr., Honorable Robert H. McWilliams, Honor-

able James E. Barrett, Honorable William E. Doyle,

Honorable Monroe G. McKay, Honorable James K.

Logan, and Honorable Stephanie K. Seymour, Circuit

Judges

No. 82-2104

82-2121

RAYMOND J. DONOVAN, Secretary of Labor,

U.S. Department of Labor,

Plaintiff-Appellant,

Cross-Appellee,

vs.

NATIONAL TRANSIENT DIVISION INTERNATIONAL

BROTHERHOOD OF BOILERMAKERS, etc., et al,

Defendants-Appellees,

Cross-Appellants.

This matter comes on for consideration of the petition

for rehearing and suggestion for rehearing en banc filed

by Appellees/Cross-Appellants in the captioned cause.

Upon consideration whereof, the petition for rehear-

ing is denied by the panel that rendered the decision sought

to be reheard.

The petition tor rehearing having been denied by the

panel to whom the case was argued and submitted, and

A27

no member of the panel nor judge in regular active ser-

vice on the Court having requested that the Court be

polled on rehearing en banc, Rule 35, Federal Rules of

Appellate Procedure, the suggestion for rehearing en banc

is denied.

/s/ Howard K. Phillips

Howard K. Phillips, Clerk

A28

APPENDIX F

RELEVANT PROVISIONS OF THE LABOR

MANAGEMENT REPORTING AND

DISCLOSURE ACT

Section 3(i) ‘Labor organization’’ means a labor

organization engaged in an industry affecting commerce

and includes any organization of any kind, any agency, or

employee representation committee, group, association, or

plan so engaged in which employees participate and which

exists for the purpose, in whole or in part, of dealing with

employers concerning grievances, /abor disputes, wages,

rates of pay, hours, or other terms or conditions of em-

ployment, and any conference, general committee, joint or

system board, or joint council s* engaged which is su-

bordinate to a national or international labor organization,

other than a State or local central body.

BILL OF RIGHTS OF MEMBERS OF

LABOR ORGANIZATIONS

Title I, Sec. 101(a)(1) Equal rights. Every mem-

ber of a labor organization shall have equal rights and

privileges within such organization to nominate candidates,

to vote in elections or referendums of the labor organiza-

tion, to attend membership meetings, and to participate in

the deliberations and voting upon the business of such

meetings, subject to reasonable rules and regulations in

such organization's constitution and bylaws.

A29

Title I, Sec. 102 Civil action for infringement of

rights; jurisdiction

Any person whose rights secured by the provisions of

this title have been infringed by any violation of this title

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 organization

shall be brought in the district court of the United States

for the district where the alleged violation occurred, or

where the principal office of such labor organization is

located.

Title Il, Section 201(a) Adoption and filing of con-

stitution and bylaws; contents of report. Every labor

organization shall adopt a constitution and bylaws and

shall file a copy thereof with the Secretary, together with

a report, signed by its president and secretary or corre-

sponding principal officers, containing the following infor-

mation—

(1) the name of the labor organization, its mailing

address, and any other address at which it maintains

its principal office or at which it keeps the records

referred to in this title;

2) the name and title of each of its officers;

(3) the initiation fee or fees required from a new or

transferred member and fees for work permits re-

quired by the reporting labor organization;

(4) the regular dues or fees or other periodic payments

required to remain a member of the reporting labor

organization; and

(5) detailed statements, or references to specific pro-

visions of documents filed under this subsection which

A30

contain such statements, showing the provision made i

and procedures followed with respect to each of the

following: (A) qualifications for or restrictions on

membership, (B) levying of assessments, (C) par-

ticipation in insurance or other benefit plans, (D)

authorization for disbursement of funds of the labor

organization, (E) audit of financial transactions of the

labor organization, (F) the calling of regular and spe- )

cial meetings, (G) the selection of officers and stewards |

and of any representatives to other bodies composed

of labor organizations’ representatives, with a specific

statement of the manner in which each officer was

elected, appointed, or otherwise selected, (H) disci-

pline or removal of officers or agents for breaches of

their trust, (I) imposition of fines, suspensions, and FE

expulsions of members, including the grounds for such | ‘

action and any provision made for notice, hearing,

judgment on the evidence, and appeal procedures, (J)

authorization for bargaining demands, (K) ratification

of contract terms, (L) authorization for strikes, and

(M) issuance of work permits. Any change in the

information required by this subsection shall be re-

ported to the Secretary at the time the reporting labor

organization files with the Secretary the annual fi-

nancial report required by subsection (b).

Se eee

Title II, Section 201(b) Annual financial report;

filing; contents. Every labor organization shall file

annually with the Secretary a financial report signed by

its president and treasurer or corresponding principal of-

ficers containing the following information in such detail

as may be necessary accurately to disclose its financial

condition and operations for its preceding fiscal year—

ee eee

(1) assets and liabilities at the beginning and end of

the fiscal year;

A31

(2) receipts of any kind and the seurces thereof:

(3) salary, allowances, and other direct or indirect

disbursements (including reimbursed expenses) to

each officer and also to each employee who, during

such fiscal year, received more than $10,000 in the

aggregate from such labor organization and any other

labor orgariization affiliated with it or with which it

is affiliated, or which is affiliated with the same na-

tional or international labor organization;

(4) direct and indirect loans made to any officer, em-

ployee, or member, which aggregated more than $250

during the fiscal year, together with a statement of

the purpose, security, if any, and arrangements for

repayment;

(5) direct and indirect loans to any business enterprise,

together with a statement of the purpose, security, if

any, and arrangements for repayment; and

(6) other disbursements made by it including the

purposes thereof;

all in such categories as the Secretary may prescribe.

* * *

Title II, Section 407(b) Each person required to

file a report under section 201(b), 202, 203(a), the second

sentence of 203(b), or section 211 shall file such report

within ninety days after the end of each of its fiscal

years; except that where such person is subject to section

201(b), 202, 203(a), the second sentence of 203(b), or

section 211, as the case may be, for only a portion of

such a fiscal year (because the date of enactment of this

Act occurs during such person’s fiscal year or such person

becomes subject to this Act during its fiscal year) such

A32

person may consider that portion as the entire fiscal year

in making such report.

* . *

Title II, Section 216 Civil action for enforcement

by Secretary; jurisdiction

Whenever it shall appear that any person has violated

or is about to violate any of the provisions of this title,

the Secretary may bring a civil action for such relief

(including injunctions) as may be appropriate. Any such

action may be brought in the district court of the United

States where the violation occurred or, at the option of

the parties, in the United States District Court for the

District of Columbia.

* * *

Title IV, Sec. 401(a) Officers of national or inter-

national labor organizations; manner of election.

Every national or international labor organization, except

a federation of national or international labor organiza-

tions, shall elect its officers not less often than once every

five years either by secret ballot among the members

in good standing or at a convention of delegates chosen

by secret ballot.

Title IV, Sec. 401(b) Officers of local labor organi-

zations; manner of election. Every local labor or-

ganization shall elect its officers not less often than once

every three years by secret ballot among the members

in good standing.

abn SRL AL GLI

A33

Title IV, Sec. 401(e) Nomination of candidates;

eligibility; notice of election; voting rights; counting

and publication of results; preservation of ballots and

records. In any election required by this section

which is to be held by secret ballot a reasonable oppor-

tunity shall be given for the nomination of candidates

and every member in good standing shall be eligible to

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

and to reasonable qualifications uniformly imposed) and

shall have the right to vote for or otherwise support the

candidate or candidates of his choice, without being sub-

ject to penalty, discipline, or improper interference or

reprisal of any kind by such organization or any member

thereof. Not less than fifteen days prior to the election

notice thereof shall be mailed to each member at his last

known home address. Each member in good standing

shall be entitled to one vote. No member whose dues

have been withheld by his employer for payment to such

organization pusuant to his voluntary authorization pro-

vided for in a collective bargaining agreement shall be

declared ineligible to vote or be a candidate for office

in such organization by reason of alleged delay or default

in the payment of dues. The votes cast by members

of each local labor organization shall be counted, and the

results published, separately. The election officials desig-

nated in the constitution and bylaws or the secretary,

if no other official is designated, shall preserve for one

year the ballots and all other records pertaining to the

election. The election shall be conducted in accordance

with the constitution and bylaws of such organization

insofar as they are not inconsistent with the provisions

of this title.

A34

Title IV, Sec. 402(a) Filing of complaint; presump-

tion of validity of challenged election. A member of

a labor organization—

(1) who has exhausted the remedies available under

the constitution and bylaws of such organization and

of any parent body, or

(2) who has invoked such available remedies with-

out obtaining a final decision within three calendar

months after their invocation,

may file a complaint with the Secretary within one calen-

dar month thereafter alleging the violation of any pro-

vision of section 401 (including violation of the constitution

and bylaws of the labor organization pertaining to the elec-

tion and removal of officers). The challenged election shall

be presumed valid pending a final decision thereon (as

hereinafter provided) and in the interim the affairs of

the organization shall be conducted by the officers elected

or in such other manner as its constitution and bylaws may

provide.

Title IV, Sec. 402(b) Investigation of complaint;

commencement of civil action by Secretary; jurisdic-

tion; preservation of assets. The Secretary shall in-

vestigate such complaint and, if he finds probable cause to

believe that a violation of this title has occurred and has

not been remedied, he shall, within sixty days after the

filing of such complaint, bring a civil action against the

labor organization as an entity in the district court of

the United States in which such labor organization main-

tains its principal office to set aside the invalid election,

if any, and to direct the conduct of an election or hearing

and vote upon the removal of officers under the supervision

of the Secretary and in accordance with the provisions of

wh es

A35

this title and such rules and regulations as the Secretary

may prescribe. The court shall have power to take such

action as it deems proper to preserve the assets of the labor

organization.

Title IV, Sec. 402(c) Declaration of void election;

order for new election; certification of election to

court; decree; certification of result of vote for re-

moval of officers. 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 401, or

(2) that the violation of section 401 may have af-

fected 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 or-

ganization. The Secretary shall promptly certify to the

court the names of the persons elected, and the court shall

thereupon enter a decree declaring such persons to be the

officers of the labor organization. If the proceeding is for

the removal of officers pursuant to subsection (h) of sec-

- tion 401, the Secretary shall certify the results of the vote

and the court shall enter a decree declaring whether such

persons have been removed as officers of the labor organi-

zation.

Title IV, Sec. 402(d) Review of orders; stay of

order directing election. An order directing an elec-

tion, dismissing a complaint, or designating elected officers

of a labor organization shall be appealable in the same

manner as the final judgment in a civil action, but an order

directing an election shall not be stayed pending appeal.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.