Opposition Brief — National Transient Division, International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers & Helpers v. Donovan

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No. 84-548 .

TENDER te OT EWAS,

Inu the Supreme Court of the Litter Siiee—

OCTOBER TERM, 1984

NATIONAL TRANSIENT DIVISION,

INTERNATIONAL BROTHERHOOD OF BOILERMAKERS,

Etc., AFL-CIO, ET AL., PETITIONERS

Vv.

RAYMOND J. DONOVAN, SECRETARY OF LABOR

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE TENTH CIRCUIT

BRIEF FOR THE RESPONDENT IN OPPOSITION

Rex E. Lee

Solicitor Genera!

Department of Justice

Washington, D.C. 20530

(202) 633-2217

FRANCIS X. LILLY

Solicitor of Labor

KAREN I. WARD

Associate Solicitor

ALLEN H. FELDMAN

Counsel for Appellate Litigation

STEVEN J. MANDEL

Attorney

Department of Labor

Washington, D.C. 20210

QUESTIONS PRESENTED

1. Whether Section 402(b) of the Labor-Management

Reporting and Disclosure Act of 1959 authorizes the Secre-

tary of Labor to bring suit to compel a labor organization

that has failed to hold required periodic elections to con-

duct an election under the supervision of the Secretary.

2. Whether the National Transient Division is a “local

labor organization” within the meaning of the Labor-

Management Reporting and Disclosure Act of 1959 and

therefore required to comply with the mandatory election

provisions of the Act.

(I)

TABLE OF CONTENTS.

Page

Opinions below ..... «Tee TENT UR (oe) ule OnE PRY CA l

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ee cect ak ese bU thos en Cbb6060 6066000 5

MER OP CCPL LETT ree e eee eee eee E ETT 12

TABLE OF AUTHORITIES

Cases:

American Tobacco Co. v. Patterson,

EIR ee a ee eer ee 5

Brennan v. U.M.W.A., 475 F.2d 1293 .......... 8

Calhoon v. Harvey, 379 U.S. 134 .........0008. 7

Hodgson v. Union de Empleados de los

Supermercados Pueblo, 388 F. Supp. 1026 .... 6

Illinois Malleable Iron Co., ‘27 N.L.R.B. 1509,

enforcement denied sub nom. NLRB v.

Appleton Electric Co., 296 F.2d 202 .......... 8

King v. Randazzo, 234 F. Supp. 388,

IEE and GAR GaSe weesseeseccess 9

Local No: 82, Furniture Moving Drivers v.

Crowley, No. 82-432 (June 12, 1984) ........ 6,7

Marshall v. Local 1374, Int'l Ass'n of

Riacwiists, SSB F.2G USSE ow cece ecccencns 6

NEA v. Marshall, 100 L.R.R.M. (BNA)

Raha ChOee SR 6ADLNS SR 5500006 WaseSeacee 7

NLRB v. Bell Aerospace Co., 416 U.S. 267 ..... 8

(IIT)

IV

Page

Cases—Continued:

Shultz v. Employees’ Federation,

pm RR Err eT ere Tree 9-10. 11

Shultz v. Radio Officers Union,

PS CO Bcc casnccncecsecesesesecs 10

Tam v. Rutledge, 475 F. Supp. 559 ............ 6

United States v. Turkette,

gk errr errr rer TTT Torre 5

Usery v. Int'l Org. of Masters,

Lf rere eT Ty Teer TTT Tey 8, 10

Wirtz v. Hotel Employees Union, Local 6,

POE Kho ns cnckcececsccaveus ies 10

Statutes and regulations:

Labor-Management Reporting and Disclosure Act

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

SE eee 7

i icengcccnantsnnnacedese 3

eh as einen 3

| eee pe ree 3

Es ein ccikescceknccncakan 3, 6

TPE, GOOD oon nce scancqeccsesevces 4,8

I 6 seeks cancedens 3, 4, 5,8, 11

aa oe eens 8

MUSE. GM ...004 a es a ah ee 8

Be Utes GREED so cccispscncecacesscacece 5

Page

Statutes and regulations—Continued:

BP GR GRRE 60 cc cccccescccssceces 3,4, 5

BP UB, GERD oc csccccccsccccncesecs 6, 11

29 C.F.R. :

| & BRPPUPTTT TUTTLE TILT Te 7

ok) rrr rrTeTT rere Tri y cr 9

Miscellaneous:

H.R. Rep. 741, 86th Cong., Ist Sess.

{. PRATT TiTTorTTT TT TT 7, 11

Labor Management Reform Legislation: Hearing

on H.R. 3540 et al., Before the Joint Subcomm.

of the House Comm. on Education and Labor,

86th Cong., Ist Sess. (1959) ........ 0. eee ees 10

1 T. Kheel, Labor Law (1984) ..........0e eee 10

S. Rep. 187, 86th Cong., Ist Sess.

tee ePeyT Tr TT TT TIT TTT TTT Te 7, 11

Inu the Supreme Court of the Hnited States

OCTOBER TERM, 1984

No. 84-548

NATIONAL TRANSIENT DIVISION,

INTERNATIONAL BROTHERHOOD OF BOILERMAKERS,

Erc., AFL-CIO, eT AL., PETITIONERS

Vv.

RAYMOND J. DONOVAN, SECRETARY OF LABOR

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE TENTH CIRCUIT

BRIEF FOR THE RESPONDENT IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. Al-A11) is

reported at 736 F.2d 618. The opinion of the district court

(Pet. App. Al2-A18) is reported at 542 F. Supp. 957. The

pretrial opinion of the district court (Pet. App. A19-A23) is

not reported.

JURISDICTION

The judgment of the court of appeals was entered on June

15, 1984. A petition for rehearing was denied on July 13,

i984 (Pet. App. A26-A27). The petition for a writ of certio-

rari was filed on October 3, 1984. The jurisdiction of this

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

(1)

2

STATEMENT

1. Petitioner National Transient Division, International

Brotherhood of Boilermakers, Iron Ship Builders, Black-

smiths, Forgers and Heipers, AFL-CIO(NTD), is one of five

divisions of the International, a labor organization main-

taining its principal office in Kansas City, Kansas (Pet.

App. A2, Al3). NTD operates in 41! states and consists of

approximately 8,000 members who travel throughout these

states erecting steeftanks and related structures (id. at A2).

NTD was established pursuant to the International consti-

tution “for the purpose of giving status to and servicing

those members who by the transient nature of their

employment *** have no fixed permanent place of

employment and who thus are unable to carry membership

in a Local Lodge or participate in its activities” (ibid.).

Unlike the other four divisions of the International, NTD

has no separate local organizations (Pet. App. A2). Rather,

it is administered solely by a national director and eight

district representatives, all of whom are appointed by and

responsible to the International president (idid.). These

officials service NTD members in the various districts

across the country (id. at A7-A8, Al0, A1l3). Together with

other NTD members, these officials negotiate a collective

bargaining agreement known as the NTD Articles of

Agreement, which covers such matters as labor disputes,

grievances, hours, and other basic terms and conditions of

employment (id. at A7-A8, A13).' Moreover, NTD repre-

sentatives administer and enforce the Articles of Agreement

(id. at A8, A10). They handle grievances, hold meetings in

which members participate, maintain out-of-work referral

lists, resolve health and welfare problems, and distribute

publications (id. at A8, Al0; Tr. 152-153). NTD also

'The NTD Articles of Agreement do not include wage provisions

(Pet. App. Al3).

3

collects monthly dues from its members, which are “in-

creased in the same amount and as of the same date as any

increase in the Local Lodge monthly dues” (Pet. App. A8,

A10; Def. Exh. B at 82). Finally, as a “subordinate bod[y],”

NTD is required to pay a monthly “per capita” tax to the

International (Pet. App. Al0; Def. Exh. B at 49).

Despite the foregoing, NTD has never held an election of

its officers, adopted and filed a constitution and bylaws, or

filed any financial reports with the Secretary of Labor (Pet.

App. A2). See 29 U_S.C. 431(a) and (b), 481.

2. On May 31, 1978, severa! NTD members in good

standing protested to the International president about the

failure of NTD to conduct an election of officers (Pet. App.

Al4). After failing to receive a final decision from the

International within three calendar months, they filed a

timely complaint with the Secretary of Labor (ibid.). The

Secretary brought this action in the United States District

Court for the District of Kansas, pursuant to the Labor-

Management Reporting and Disclosure Act of 1959

(LMRDA), 29 U.S.C. 440 and 482(b), to require NTD to

hold a supervised election of officers and to maintain and

file required documents. The Secretary alleged that NTD is

a “local labor organization” and thus required to elect

officers once every three years by secret ballot. See 29

U.S.C. 481(b). NTD took the position that it is not a “labor

organization” subject to the provisions of the Act and. in

any event, that it is not a “local” labor organization.

After a trial ~~ the merits,’ the district court held that

NTD is a “natio.. i,” but not a “local,” labor organization

subject to the LMRDA. The court acknowledged the “sim-

ilarities in function” between NTD and generally recog-

nized locals but, based on the nationwide jurisdiction of

>The district court denied the Secretary's motion for summary judg-

ment and petitioners’ motion to dismiss (Pet. App. A19-A23).

4

the union, it concluded that NTD is a “national.” The court

ordered NTD to elect its officers at least once every five

years, either by direct secret ballot or at a convention of

delegates chosen by secret ballot (Pet. App. Al4-A17). See

29 U.S.C. 481(a).3 Both NTD and the Secretary appealed.

3. The court of appeals affirmed the district court’s rul-

ing that NTD is a “labor organization,” but reversed the

holding that it is a “national” rather than a “local” union

(Pet. App. Al-Al11). The court first held that 29 U.S.C.

482(b) authorizes the Secretary to bring suit against a labor

organization that fails to hold required periodic elections.

The court of appeals, like the district court (Pet. App. Al4,

A19-A23), rejected NTD’s argument that 29 U.S.C. 482(b)

authorizes the Secretary to bring suit only to set aside an

invalid election, but not to compel an election that has not

been conducted. Pet. App. A3-A6. The court of appeals

next determined that NTD isa “labor organization” because

it “is an organization in which employees participate and

which represents its members concerning grievances, labor

disputes, and other terms and conditions of employment”

(id. at A6-A8).

The court of appeals further held, however, that NTD is

“structurally and functionally” a “local” labor organization

(Pet. App. A8-A10). It noted that NTD has the relatively

simple organizational structure characteristic of locals and

pays a “per capita” tax to the International, like other locals

(id. at A10). The court found most important the fact that

“NTD performs the functions of a local,” including nego-

tiating and enforcing a collective bargaining agreement

(ibid.). Finally, the court rejected NTD’s claim that, as a

practical matter, it could not hold an election, noting that

3A local, by contrast, must elect officers at least once every three years

by direct secret ballot. 29 U.S.C. 481(b).

5

compliance with the LMRDA’s election provisions is man-

datory (id. at Alf. All). Accepting the district court’s find-

ings on this question (id. at Al7-A18), the court of appeals

concluded that NTD had not shown that it is unable to

comply with the election requirements (id. at Al1).

ARGUMENT

Petitioners themselves characterize (Pet. 23) this case as

one of “first impression” under the LMRDA, and clearly

there is no conflict between the decision below and any

decision of this Court or of another court of appeais. The

decision of the court of appeals correctly resolves issues of

statutory interpretation, and therefore there is no reason for

review by this Court.

1. Petitioners contend (Pet. 11-15) that the Secretary

lacks authority to bring a Title IV suit, pursuant to 29

U.S.C. 482(b), where a union has failed to hold periodic

elections as required by the Act. This argument is wholly

without merit.

The plain language of Title 1V unambiguously authorizes

the Secretary to file suit in a situation, such as this, where an

election has never been held or scheduled. This language is

dispositive. See American Tobacco Co. v. Patterson, 456

U.S. 63, 68 (1982); United States v. Turkette, 452 U.S. 576,

580 (1981). Section 481(b) requires that “[e]very local labor

organization shall elect its officers not less often than once

every three years by secret ballot among the members in

good standing.” Section 482(a) provides that “[a] member

of a labor organization * * * may file a complaint with the

Secretary * * * alleging the violation of any provision of

section 481” (emphasis added). While petitioners have

contended (see Pet. App. A4) that the statute is addressed to

the Secretary’s power to correct an invalid election, it

manifestly does not concern itself exclusively with that

situation. Section 482(b) provides that the Secretary, after

6

investigation, may bring a civil action “to set aside the

invalid election, if any” (emphasis added). Finally, 29

U.S.C. 482(c) specifically states that if the court finds that

“an election has not been held within the time prescribed by

section 481 * * * the court shall declare the election, if any,

to be void” (emphasis added).

In addition, the court of appeals correctly observed that

construing the statute to authorize this suit “comports with

the basic objective of the statute[] to guarantee democratic

union elections” (Pet. App. A5). In light of this statutory

background, several courts have entertained suits brought

under Title IV to remedy the failure of a union to hold

periodic elections. See Marshall v. Local 1374, Int'l Ass'n

of Machinists, 558 F.2d 1354, 1358 (9th Cir. 1977); Tam v.

Rutledge, 475 F. Supp. 559, 572 (D. Hawaii 1979); Hodg-

son v. Union de Empleados de los Supermercados Pueblo,

388 F. Supp. 1026, 1028-1029 (D.P.R. 1974).4

Petitioners’ suggestion (Pet. 12-15) that an LMRDA

Title I suit would be the appropriate vehicle for vindicating

the electoral rights involved here is not persuasive. Their

statement that Title IV is not available because “Title IV

does not require elections” (Pet. 14-15) is clearly contrary to

the statute. See 29 U.S.C. 481; Local No. 82, Furniture

Moving Drivers v. Crowley, No. 82-432 (June 12, 1984),

slip op. 11-12. Indeed, the Court recently held that,

4Petitioners’ attempt to distinguish Local Union 1374 and Supermer-

cados Pueblo on the ground that, in those cases, “the right to have an

election had already been established” (Pet. 13-14), is unavailing. In

those cases, like the instant case, the Secretary successfully secured the

Title 1V remedy of a supervised election in instances in which a local

union had failed to hold an election every three years. That the unions in

those cases apparently did not ultimately contest that they were “labor

organizations” is irrelevant to the jurisdictional question whether the

Secretary has the power to institute a suit when an election has not been

held, for whatever reason, within the statutory time period.

7

if the remedy sought for an LMRDA election violation is a

supervised election, “union members must utilize the reme-

dies provided by Title IV.” Local No. 82, slip op. 23. That is

the remedy sought here. Moreover, it is questionable

whether a suit challenging the failure to hold an election

even raises a Title I cause of action since the focus of the

Title I election provision is to prohibit discrimination

among members. See Calhoon v. Harvey, 379 U.S. 134,

138-141 (1964). Thus, a Title IV suit is the appropriate

means to obtain the statutory remedy sought in this case.

2. Petitioners also challenge (Pet. 15-19) the lower

courts’ rulings that NTD is a “labor organization” within

the meaning of the LMRDA. This contention is insubstan-

tial. Indeed, the district court noted that petitioners offered

“little resistance” to this categorization (Pet. App. A16).

A “labor organization” is defined as “any organization of

any kind * * * 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.” 29 U.S.C. 402(i). To assure that the

LMRDA'’s objectives are not circumvented, it is established

that the definition of “labor organization” should be read

broadly. See 29 C.F.R. 451.2; S. Rep. 187, 86th Cong., Ist

Sess. 52-53 (1959); H.R. Rep. 741, 86th Cong., Ist Sess. 28

(1959); NEA v. Marshall, 100 L.R.R.M. (BNA) 2565

(D.D.C. 1979).

Petitioners argue (Pet. 16-18) that NTD is not a “labor

organization” because its members do not “participate” in

the entity. To the contrary, the uncontroverted evidence

supports the court of appeals’ determination that NTD

members participate in their union in every manner short of

electing its officers. Specifically, NTD National Director

David Lewis testified that NTD meetings in which members

8

participate are held in the various districts (Pet. App. Ag,

A10; Tr. 63-64). NTD members take part in negotiations

over the NTD Articles of Agreement (Pet. App. A7; Tr.

64-65), and pay dues to NTD (Pet. App. A10). Clearly,

NTD correctly was held to be a labor organization.°

3. The LMRDA classifies all labor organizations as

either “national,” “local,” or “intermediate.” 29 U.S.C. 481(a),

(b), and (d). Petitioners contend (Pet. 19-26) that the court

of appeals erred in classifying NTDasa “local.” While the

terms “local” and “national” are not defined inthe LMRDA,

the Secretary’s interpretative regulations, which are entitled

to deference (NLRB v. Bell Aerospace Co. 416 U.S. 267,

273-274 (1974)), provide that the status of a labor organiza-

tion should be determined primarily on the basis of its

$Petitioners also contend (Pet. 19, 24) that NTD is merely an adminis-

trative arm or division of the International. It is well settled under the

LMRDA, however, that the fact that an organization is viewed as an

administrative arm or division of an International does not mean that it

is not a “labor organization,” as long as it deals with employers. See,

e.g., Usery v. Intl Org. of Masters, 550 F.2d 826 (2d Cir. 1977);

Brennan v. U.M.W.A., 475 F.2d 1293, 1296(D.C. Cir. 1973). Petition-

ers rely (Pet. 24) solely on Jllinois Malleable Iron Co., 127 N.L.R.B.

1509 (1960), enforcementdenied on other grounds sub nom. NLRB v.

Appleton Electric Co., 296 F.2d 202 (7th Cir. 1951), a decision under the

National Labor Relations Act that predates the above-cited LMRDA

decisions. However, in that case the NLRB specifically found that the

entity involved did not engage in any collective bargaining activities.

127 N.L.R.B. at 1510.

Petitioners’ reliance (Pet. 22) on the fact that the government has

never characterized the other divisions of the International as “labor

organizations” is irrelevant. Even assuming arguendo that consistency

required that those divisions be classified the same as NTD, were the

issue to arise, the Secretary has never received an election complaint

concerning the other divisions (Tr. 49-50), and therefore it has never

had the authority to investigate and determine their status. See 29

U.S.C. 482.

6Petitioners do not suggest how NTD should be classified if it is found

to be a labor organization. Indeed, they assert (Pet. 19) that NTD

cannot be placed in any of the three categories.

9

purposes-and the functions it performs on behalf of its

members. 29 C.F.R. 452.11. Applying this analysis, the

court of appeals correctly concluded that “NTD is func-

tionally and structurally a local labor organization” (Pet.

App. A10).

Structurally, NTD clearly is a local. It is subordinate to

the International and, at the same time, has no union enti-

ties below it. Indeed, the International constitution estab-

lishes NTD as a subordinate unit — a subdivision of the

International — that sends delegates to the International

convention, has officials appointed by and responsible to

the International president, and pays a “per capita” tax to

the International.’ Finally, NTD lacks the complex struc-

ture of an international or national body, which typically

include separate autonomous units. NTD is run by a

national director who has district officials representing him

in various regions. These representatives have no authority

to act except with the approval of the national director. This

non-complex structure is typical of a local labor organiza-

tion. See Shultz v. Employees’ Federation, 74 L.R.R.M.

(BNA) 2140, 2143 (S.D. Tex. 1970).

Functionally, NTD also operates as a local. As the court

of appeals found (Pet. App. Ai0), NTD performs the duties

generally associated with locals. It negotiates terms of

employment with contractors, handles grievances, main-

tains referral lists, and collects dues. In providing these and

other direct services to the membership and in being the unit

most immediately involved with the members’ welfare,

NTD unquestionably more clesely resembles a local than a

national. See Shultz v. Employees’ Federation, 74

’Such a tax has been described in another context as “one which is

levied by a parent labor organization upon a /ocal union with which it is

affiliated.” King v. Randazzo, 234 F. Supp. 388, 394(E.D. N.Y. 1964),

aff'd, 346 F.2d 307 (2d Cir. 1965) (emphasis in original).

10

L.R.R.M. at 2143; see generally | T. Kheel, Labor Law §§

3.02[2], 3.03[1] (1984). To classify NTD as anything other

than a local labor organization, theugh it is structured and

functions like a local, would undercut the purposes of the

statute. If NTD is not a local, its members would be the only

members of the Boilermakers who could not vote, every

three years, for the union officials who determine most

directly their conditions of employment.

In enacting the LMRDA, Congress was addressing “a

need to protect the rights of rank-and-file members to par-

ticipate fully in the operation of their union through pro-

cesses of democratic self-government, and, through the

lection process, to keep the union leadership responsive to

the membership.” Wirtz v. Hotel Employees Union, Local

6, 391 U.S. 492, 497 (1968). Asa result, Congress prescribed

minimum standards for union elections, including provi-

sions governing how often and in what manner elections

must be conducted. By setting more stringent standards for

the election of local union officers (triennial secret ballot

elections) than for national officers, Congress decreed that

members be given a more frequent opportunity to have the

union officials closest to them held accountable through the

elective process. See Labor Management Reform Legisla-

tion: Hearings on H.R. 3540, et al., Before the Joint Sub-

comm. of the House Comm. on Education and Labor, 86th

Cong., Ist Sess. 644 (1959) (statement of Rep. Griffin). A

failure to treat NTD asa local would undermine that policy.

Contrary to petitioners’ contention (Pet. 19-20), neither

the migratory nature of the work nor the lack of monthly

meetings militates against a finding that NTD is a local

union. Transitory work patterns among loca! members are

far (rom unprecedented. See, e.g., Usery v. Int'l Org. of

Masters, 550 F.2d 826 (2d Cir. 1977); Shultz v. Radio

Officers’ Union, 344 F. Supp. 58, 60, 69 (S.D. N.Y. 1972).

Thus, the court of appeals recognized that “it makes little

sense to fotus exclusively on the geographical proximity of

the organization's membership in determining whether a

labor organization is a local” (Pet. App. A9-A10).8 By the

same token, NTD's lack of monthly meetings cannot over-

ride the more significant functional and structural charac-

teristics of the union.? In fact, NTD does hold periodic

meetings of its members, even if not as frequently as do

other Boilermaker locals (id. at A8, A10). Accordingly, the

court of appeals correctly held that NTD was required by

Statute to hold triennial elections. In doing so, the court did

not seek to rewrite the International's constitution, as peti-

tioners suggest (Pet. 25), but simply ordered that an election

be conducted in conformity with the constitution, “so far as

lawful and practicable” (H.R. Rep. 741, supra, at 17). See

29 U.S.C. 482(c).

4. Petitioners renew their argument (Pet. 26-28) that the

Secretary is not entitled to the relief of a supervised election

because there is no proof that NTD can conduct an election

of officers. This contention was correctly rejected by both

courts below (Pet. App. A10-A11, A17-A18).

The election requirements and remedies of the LMRDA

contain no exception for instances in which compliance

may be difficult. See 29 U.S.C. 481(b), 482(c); S. Rep. 187,

supra, at 21; H.R. Rep. 741, supra, at 17. In any event, the

court of appeals found that petitioners “have not shown

that NTD is unable to comply with the Act's election provi-

sions” (Pet. App. All). The court noted that NTD con-

tinues to collect dues from its members and has conducted

*W hile petitioners correctly note (Pet. 24-25) that the court in Shultz

\ Empiovees Federation, supra, referred to the fact that the union

there operated within a limited geographic area, the court relied primari-

) on [he Umon s structural and organizational characteristics discussed

above > RRM. at 2143-2144.

*“Month!) meetungs, of course, are not required by the LMRDA.

12 ~\

elections for delegates to the International convention

(ibid.). Against this background and in light of the absence

of any attempt to conduct a local election, the argument

that it is impossible for NTD tv elect its officers is unsup-

ported speculation. !°

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

Rex E. Lee

Solicitor General

FRANCIS X. LILLY

Solicitor of Labor

KAREN I. WARD

Associate Solicitor

ALLEN H. FELDMAN

Counsel for Appellate Litigation

STEVEN J. MANDEL

Attorney

Department of Labor

DECEMBER !984

'OPetitioners incorrectly characterize the evidence as showing that

NTD cannot deliver ballots to even “one-half” of its members (Pet.

27-28). To the contrary, the evidence demonstrates that in the 1981

election of International convention delegates, approximately 10 % of

the nomination ballots were returned by the post office to the union as

undelivered (Tr. 173-174), and approximately 6 % of the election ballots

were returned as undelivered (Tr. 175-176).

DOJ-1984-12