Petition for Writ of Certiorari — CSEA Local Union 1000, American Federation of State v. Brock
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85 -1866. | Supreme Court, U.S.
MAY 12 1986
No. JOSEPH F. SPANIOL, JR.
IN THE :
Supreme Court of the United States
Ocroser TERM, 1986
CSEA LOCAL UNION 1000,
AMERICAN FEDERATION OF STATE, COUNTY AND
MUNICIPAL EMPLOYEES, AFL-CIO,
Petitioner,
— against —
RAYMOND J. DONOVAN, SECRETARY OF LABOR,
Respondent,
HELEN CARTER,
Respondent.
PETITION FOR A WRIT OF CERTIORARI TO
UNITED STATES COURT OF APPEALS,
SECOND CIRCUIT
MICHAEL J. SMITH
ROEMER AND FEATHERSTONHAUGH, P.C.
Office and P.O. Address
Capital Center
99 Pine Street
Albany, New York 12207
(518) 436-7663
ee, -—.!
ta 4
QUESTIONS PRESENTED
Whether attorneys fees may be awarded to an intervenor in
an action brought by the United States Secretary of Labor pur-
suant to Title IV of the Labor Management Reporting and
Disclosure Act of 1959, 29 U.S.C. §481 et seq.
PARTIES TO PROCEEDING
Plaintiff Raymond J. Donovan, Secretary, United States
Department of Labor is the plaintiff herein. Helen Carter is the
plaintiff-intervenor and CSEA Local Union 1000, American
Federation of State, County and Municipal Employees, AFL-CIO,
is the defendant.
ili
TABLE OF CONTENTS
QUESTIONS PRESENTED ...................
TABLE OF AUTHORITIES..... Merete te cu
STATEMENT OF FACTS.................005.
OPINIONS BELOW.................0.-- 0005.
ne
STATUTORY PROVISIONS INVOLVED .......
STATEMENT OF CASE..................005.
REASONS FOR GRANTING WRIT............
eee
APPENDIX “A”
Decision of the United States Court of Appeals,
Second Circuit, February 14, 1986 ...........
Decision of the United States District Court,
Northern District, New York, July 26, 1985....
Order of United States District Court, Northern
District, New York, filed August 1, 1985 ......
Decision of United States District Court,
Northern District, New York, July 19, 1984....
Decision of United States Court of Appeals,
Second Circuit, May 1, 1985 ................
Page
A-13
A-16
A-17
A-36
iv
Page
APPENDIX “B”
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Vv
TABLE OF AUTHORITIES
Cases Cited
Alyeska Pipeline Company v. Wilderness Society,
eee ee
Brennan v. United Steel Workers of America, 554
F.2d 586 (3rd Cir. 1977), cert. den. sub. nom.
United Steel Workers of America v. Sadlowski
a es re ee 65s a ba ed ewe cess
Donovan v. CSEA, Local Union 1000, 761 F.2d
re Se Gls UE ee ec eerie ies eewureewes
Donovan v. Internationai Brotherhood of
Teamsters, Local 70, 661 F.2d 1199 (9th Cir.
RS earn Be ee
Fleischmann Distilling Corp. v. Maier Brewing
ae eG: ee ee eee
Hom ©. Cole, 453 U5. 1 (UGTS) .... . 0. 0055 .0055:
Marshall v. International Brotherhood of
Teamsters, Local Union 20, 509 F. Supp. 926
as. SN ED 4.0 bw kA ew A wees teamed
Marshall v. United Steel Workers of America, 666
F.2d 845 (3rd Cir. 1981) (cert. den. sub. nom.
United States Steel Workers of America v.
Sadlowski 459 U.S. 823 (1982)) ..............
Mills v. Electric Auto-Light Company decision,
BOe We BO MEER 6 bvgs aea ea hee eee
Page
Rollison v. Hotel, Motel and Restaurant
Construction Camp Employees, 677 F.2d 741
SY ME 6 bls epi a ii A hha wh aeee kanes
Trbovich v. United Mine Workers, 404 U.S. 528
ec eee Seek CHER K A ORS CaaS de OK
United Steel Workers v. Sadlowski, 435 U.S. 977
WOE Tee er rr: toe ere
Usery v. Local Union 639, International
Brotherhood of Teamsters, 543 F.2d 369 (D.C.
Cir. 1976) cert. den. sub. nom. International
Brotherhood of Teamsters v. Marshall, 429 U.S.
UP RUNOE: s 6un.n 4 00s KA uae KANSAS EESS OEEN
Cases Cited
Wirtz v. Local 153, Glass Bottle Blowers’
Association, 389 U.S. 463 (1968) .............
Statutes Cited
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Rule 17.1(c), Supreme Court ..................
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No.
IN THE
Supreme Court of the United States
OcToOBER TERM, 1986
CSEA LOCAL UNION 1000,
AMERICAN FEDERATION OF STATE, COUNTY AND
MUNICIPAL EMPLOYEES, AFL-CIO,
Petitioner,
— against —
RAYMOND J. DONOVAN, SECRETARY OF LABOR,
Respondent,
—and—
HELEN CARTER,
Respondent.
PETITION FOR A WRIT OF CERTIORARI
TO UNITED STATES COURT OF APPEALS,
SECOND CIRCUIT
To the Honorable, the Chief Justice and Associate Justices of the
Supreme Court of the United States:
CSEA Local Union 1000, American Federation of State,
County and Municipal Employees, AFL-CIO, the petitioner
herein prays that a Writ of Certiorari issue to review the judg-
ment of United States Court of Appeals, Second Circuit, entered
in the above-entitled case on February 14, 1986.
OPINIONS BELOW
The opinion of the United States Court of Appeals, Second
Circuit, dated and entered February 14, 1986, is reported at 784
F.2d 98 (1986) and is printed in Appendix “A” hereto, infra, page
“A-1”.
The decision of'the United States District Court, Northern
District, New York rendered July 26, 1985, is unreported and is
printed in Appendix “A”, hereto, infra, page “A-13". The order
filed August 1, 1985 is printed in Appendix “A”, infra, page A-16.
The previous decision of the United States District Court, Nor-
thern District of New York dated July 19, 1984 is reported at 594
F. Supp. 188 (1984) and is printed in Appendix “A”, infra, page
A-17. The previous decision of the United States Court of Ap-
peals, Second Circuit dated May 1, 1985 is reported at 761 F.2d
870 (1985) and is printed in Appendix “A” infra, at page A-36.
JURISDICTION
The jurisdiction of this court is invoked pursuant to 28 U.S.C.
§1254(1) and Rule 17.1(c) of the Rules of this Court in that a
Federal Court of Appeals has decided an important issue of
Federal Law which has not been but should be settled by this
Court.
STATUTORY PROVISIONS INVOLVED
This case involves Title IV, Sections 401-404 of the Labor
Management Reporting and Disclosure Act of 1959, 29 U.S.C.
§ §481-484. Said statutory provisions are set forth verbatim in Ap-
pendix “B” infra, page “B-1”.
STATEMENT OF CASE
This proceeding was commenced on or about January 31, 1983
by the United States Secretary of Labor pursuant to Title IV of
the Labor Management Reporting and Disclosure Act of 1959
(LMRDA), 29 U.S.C. §481 et seq. seeking to annul the regularly
scheduled triennial election of Statewide officers of the Civil Ser-
vice Employees Association, Inc. (CSEA) conducted between May
15 and June 15, 1982. The Secretary sought an order declaring
\
ee
that CSEA had violated Section 401(d) of the LMRDA, 29 U.S.C.
§481(b), by failing to conduct the election for the Statewide of-
ficers by secret ballot and an order declaring that CSEA had
violated Section 40l(e) of the LMRDA, 29 U.S.C. §48l(e), by:
1. Imposing unreasonable candidacy requirements;
2. Imposing candidacy requirements in a non-uniform manner;
3. Denying members in good standing a reasonable opportunity
for the nomination of candidates; and
4. Denying members in good standing the right to be a can-
didate. (The procedural history of the underlying election case,
and the appeal thereof, is more fully set forth in the opinion of
the United States Court of Appeals, Second Circuit, at 761 F.2d
870 and the opinion of the District Court (Miner, J.) at 594 F.
Supp. 188 annexed in Appendix “A”, infra.)
As a remedy in the proceeding, the Secretary of Labor sought
a new election conducted under his supervision.
Helen Carter, a CSEA member who had filed the initial elec-
tion complaint with the Secretary brought on a motion to in-
tervene in March of 1983. Intervention was initially denied by
District Judge Miner in a decision dated May 27, 1983. In a subse-
quent motion, Carter's application for intervention was granted.
The Secretary filed a motion for partial summary judgment
regarding the secret ballot issue and on his claim that CSEA’s
nominating procedures were unreasonable. CSEA also filed a mo-
tion for partial summary judgment upon the ground that in-
tervenor Carter had not properly exhausted her internal union
remedies with respect to her complaint regarding the nominating
procedures. By decision and order dated July 19, 1984, the District
Court granted the Secretary Summary Judgment on the secret
ballot issue, holding that CSEA has failed to conduct the elec-
tion by secret ballot. However, the Court denied the Secretary's
motion for partial summary judgment with respect to the
nominating procedures. The Coourt also denied CSEA’s motion
concerning exhaustion of remedies. In its decision, the Court
ordered CSEA to conduct a new election within 90 days super-
vised by the Secretary. Said election was held on October 15, 1984.
The Secretary appealed from the District Court’s order insofar
as it held that CSEA’s nominating procedures were reasonable
and in compliance with Title IV of the LMRDA. CSEA cross-
appealed that part of the order which denied its motion for partial
summary judgment on the exhaustion of remedies issue.
By decision dated May 1, 1985, the Court of Appeals, Second
Circuit, reversed the District Court insofar as the District Court
found CSEA’s nominating procedures reasonable and not in viola-
tion of the LMRDA and affirmed the order insofar as it concluded
that Carter had exhausted her internal union remedies. See,
Donovan v. CSEA, Local Union 1000, 761 F.2d 870 (2d Cir.
1985), annexed hereto in Appendix “A”, infra, at page
In June of 1985, intervenor Carter filed a motion for attorneys
fees in the amount of $38,785.86. By decision dated July 26, 1985,
the District Court, per Judge Miner, rendered its decision and
awarded the intervenor the sum of $7,112.10. An order was filed
on August 1, 1985. Both intervenor and CSEA appealed.
By decision dated February 14, 1986, the United States Court
of appeals, Second Circuit, held that though Title IV of the
LMRDA does not explicitly authorize the award of attorneys fees
to intervenors, that attorneys fees are permissible under the “com-
mon benefit” exception. The Court increased the award of counsel
fees to the amount of $8,649.60.
Judge Winter dissented concurring with the opinion of Justice
White in his dissent from the denial of Certiorari in United Steel
Workers v. Sadlowski, 435 U.S. 977 (1978).
REASONS FOR GRANTING WRIT
The issue presented herein, to wit: whether attorneys fees may
be awarded to an intervenor in an action brought by the United
States Secretary of Labor pursuant to Title IV of the LMRDA,
29 U.S.C. §481 et seq., sets forth an important question of Federal
Law which has not been, but should be, settled by this Court
(Rule 17.1(c) of the Rules of the Supreme Court). The issue was
one of first impression to the Second Circuit and warrants resolu-
tion by this Court.
- Nt en
The general “American Rule” bars, in the absence of statutory
authorization, awards of attorneys fees to the prevailing party
in Federal litigation. Alyeska Pipeline Company v. Wilderness
Society, 421 U.S. 240 (1975). An exception to the “American Rule”
is the “common benefit” theory.
In Hall v. Cole, 412 U.S. 1 (1973), the Supreme Court applied
this “common benefit” exception and awarded attorneys fees in
an action under Title I of the LMRDA, 29 U.S.C. 411 et seq. In
Title I cases, an individual private litigant, can assert violations
of the “Bill of Rights” set forth in Title I.
This proceeding, however, is mentioned pursuant to Title IV
of the LMRDA, not Title I. Pursuant to Title IV of the LMRDA,
the Secretary of Labor has sole and exclusive authority to com-
mence actions regarding union elections. Pursuant to Section
402(a) of the LMRDA, 29 U.S.C. 482, a member of a labor
organization who has exhausted internal union remedies may file
a complaint with Secretary of Labor challenging a union elec-
tion. Pursuant to the statutory scheme of Title IV, the Secretary
is charged with the responsibility of investigating such a com-
plaint and
“If he finds probable cause to believe that a violation
of this Title (IV) 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 principle office to set aside the invalid elec-
tion .. ., 29 U.S.C. 482(b).”
An individual union member may not commence his own ac-
tion to challenge a union election. Said action must be commenc-
ed by the Secretary of Labor pursuant to Title IV.
Though the Labor Management Reporting and Disclosure Act
was enacted in 1959, it was not until 1972 that the Supreme Court
acknowledged that the union member who filed the original com-
plaint with the Secretary of Labor could intervene in the
Secretary's action, Trbovich v. United Mine Workers, 404 U.S.
528 (1972). In Trbovich, it was noted that the Secretary’s interest
in Title IV litigation was an interest of all union members in
democratic union elections, Wirtz v. Local 153, Glass Bottle
Blowers’ Association, 389 U.S. 463, 475 (1968). Discretionary in-
tervention was permitted by the Supreme Court in that the
Secretary's interest might be somewhat different than the interest
of the individual union member who filed the original complaint
with the Secretary.
It is important to reiterate, however, that the Secretary’s in-
terest in Title IV litigation is to represent the interest of all union
members to insure democratic union elections (“common
benefit”). This contrasts with the interest of the individual union
member, who was permitted to intervene to protect his own
interest.
Three Federal Circuits, the Third, Ninth, and the District of
Columbia, have cited Hall v. Cole, supra, for the proposition
that attorneys fees may be awarded to intervenors in Title IV
cases under the “common benefit” theory. Rollison v. Hotel, Motel
and Restaurant Construction Camp Employees, 677 F.2d 741 (9th
Cir. 1982); Donovan v. International Brotherhood of Teamsters,
Local 70, 661 F.2d 1199 (9th Cir. 1981); Brennan v. United Steel
Workers of America, 554 F.2d 586 (3rd Cir. 1977), Cert. den.
435 U.S. 977 (1978); Marshall v. United Steel Workers of America,
666 F.2d 845 (3rd Cir. (1981)) cert. den. 459 U.S. 823 (1982); Usery
v. Local Union 639, International Brotherhood of Teamsters, 543
F.2d 369 (D.C. Cir. 1976) Cert. den. 429 U.S. 1123 (1977).
Though the above referenced circuits have awarded attorneys
fees in Title IV cases under the “common benefit” theory, the
reasoning of Mr. Justice White, and two of his fellow justices,
in the dissent to the denial of Certiorari in United Steel Workers
of America v. Sadlowski, 435 U.S. 977 (1978), questions the ra-
tionale of said decisions.
As noted above, prior to the Supreme Courts decision in
Trbovich, an individual member had no right to intervene in a
Title IV action. The Supreme Court held in Trbovich that the
objecting union member may intervene in a Title IV action com-
menced by the Secretary of Labor “so long as that intervention
is limited to the claims of illegality presented by the Secretary’s
complaint”, 404 U.S. at 537. The Supreme Court reasoned that
the granting of intervention would make the union liabie to or
to relatively little additional burden. Id. at 536.
Mr. Justice White in his dissent in Sadlowski critically recogniz-
ed that the granting of attorneys fees could be an additional
burden upon the union which could become quite costly and
questioned whether an individual’s intervention could create a
common benefit. Mr. Justice White stated:
“The contribution made by an individual union
member, however, who intervened in an action brought
by the Secretary of Labor, can only with great difficulty
be viewed as the creation of a common benefit. The
Secretary has already investigated the case, and is
already conducting the suit. And the rationale permit-
ting intervention was not to duplicate the efforts of the
Secretary. Intervention was held permissible in
Trbovich in order to protect a union member's interest,
or his choice of how to present that interest, precisely
to the extent that the individual’s interest diverged from
the Secretary's. The Secretary is the champion of “vital
public interest” in assuring free and democratic union
elections that transcends the narrower interest of the
complaining union member. Trbovich, supra, at 539,
citing Wirtz v. Local 153, Glass Bottle Blowers’
Association, 389 U.S. 463 (1968). Hence, the rationale
that provides for the right to intervene in the first place
substantially undercuts the intervenor’s claim to be
creating a significant common benefit not already pro-
vided by the Secretary.” United Steel Workers of
America v. Sadlowski, 459 U.S. at 979.
Mr. Justice White's closing is quite prophetic:
“The awarding of attorneys fees to intervenors in Ti-
tle IV proceedings threatens seriously to obstruct the
administration of the LMRDA. The common benefit
exception has in this case been stretched beyond the
bounds of its creative rationale, both as to whether a
benefit has been shown to exist at all, given the
Secretary's dominant enforcement role, and as to
whether it is fair to tax the entire union with the costs
of providing what benefits there might be.” Id. at 980.
In Marshall v. International Brotherhood of Teamsters, Local
Union 20, 509 F. Supp. 926 (N.D. Ohio 1981), the United States
District Court for the Northern District of Ohio also rejected the
expansion of the common benefit rule to Title IV election mat-
ters. The Court held that pursuant to Title IV of the LMRDA,
the Secretary of Labor is the guardian of the public interest and
confers the common benefit upon all union members. The Court
held:
“This Court finds that an award of attorneys fees to
plaintiff intervenors is inconsistent with their limited
role permitted by Trbovich ... contrary to the ra-
tionale of the Trbovich decision, an award of attorneys
fees would impose an additional burden on the union,
and would create the possibility of whether a “com-
mon benefit” was conferred on an identifiable class of
beneficiaries. The Court feels that such results were
not intended by the Supreme Court when it permit-
ted limited intervention in the Trbovich case.” Id. at
928.
It is submitted that the extension of the “common benefit”
theory to Title IV cases is inconsistent with that statute's legislative
history. The courts that have awarded attorneys fees in Title IV
cases have ignored, in essence, the fact that Congress specifical-
ly rejected a bill, H.R. 8342, 86th Cong., Ist sess. Section 402(a)
(1959), which would have provided for individual union member
suits under Title IV and authorized the award of appropriate
relief, including attorneys fees. Additionally, a review of Titles
I, I, TfI and V of the LMRDA will demonstrate that each Title,
with the exception of Title IV, contains specific statutory
authorization for either an award of attorneys fees or the gran-
ting of other “appropriate relief.” For example, see 29 U.S.C.
§431(c); 29 U.S.C. §510(b). The lack of an equivalent grant of
remedial authority is readily explainable by the fact that the Con-
gress left to the Secretary of Labor the function of insuring com-
pliance with Titie IV and protecting the rights of all union
members (the “common benefit”).
Title IV constitutes the kind of explicit, comprehensive and
exclusive remedial scheme that may bar the recovery of attorneys
fees. Fleischmann Distilling Corp. v. Maier Brewing Co., 386
U.S. 714, (1967). Although Fleischmann has been greatly limited
by the subsequent Mills v. Electric Auto-Light Company deci-
sion, 396 U.S. 375, (1970), it is submitted that the “common
benefit” rationale for the award of attorneys fees in Hall v. Cole,
supra, is inapplicable to Title IV actions where the burden of
enforcement falls, not on an individual member, but rather on
the Secretary of Labor.
This dominant enforcement role must be contrasted to the
limited role of the intervenor under Trbovich. The United States
Supreme Court in Trbovich granted the possibility of interven-
tion because of a private, individual interest of the intervenor
differing from that of union members in general. But it is the
union membership as a whole to whom such a common benefit
must flow. It cannot be claimed that a Title IV intervenor can
obtain any benefit, common or individual, without a Civil ac-
tion being commenced by the Secretary of Labor who is acting
as the “public’s” lawyer.
10
CONCLUSION
Wherefore, petitioners respectfully pray that a writ of certiorari
be granted.
DATED:
Respectfully submitted,
MICHAEL J. SMITH
ROEMER AND FEATHERSTONHAUGH, P.C.
Office and P.O. Address:
Capital Center, 99 Pine Street
Albany, New York 12207
(518) 436-7663
APPENDIX
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A-l
APPENDIX A
Decision of the United States Court of Appeals,
Second Circuit, February 14, 1986
LUMBARD, Circuit Judge:
This appeal presents the question of whether a plaintiff-
intervenor who aids the Secretary of Labor in mounting a suc-
cessful challenge to union election procedures under Title IV of
the Labor-Management Reporting and Disclosure Act of 1959
(LMRDA), 29 U.S.C. §§ 481-483 (1982), may recover attorney’s
fees from the defendant union! We hold that attorney’s fees may
be granted to Title IV intervenors and affirm the district court’s
award in the present case; however, we believe that the district
court should also have allowed fees for the time spent by in-
tervenor’s counsel on the fee application itself.
Because the events leading up to this petition for attorney’s
fees have been detailed in Donovan v. CSEA Local Union 1000,
594 F. Supp. 188 (S.D.N.Y. 1984), aff in part and rev‘d in part,
761 F.2d 870 (2d Cir. 1985), we only briefly recapitulate. In-
tervenor Helen Carter is a member of the defendant union, the
Civil Service Employees Association (“CSEA”), which represents
approximately 200,000 employees of the State of New York and
its various political subdivisions. Carter wanted to run in the
union’s 1982 election for the statewide office of Secretary. She
failed to obtain the endorsement of a select “nominating com-
mittee” although the incumbent was automatically placed on the
ballot in accordance with the union’s constitution. Carter was
also unable to get on the ballot through the alternative procedure
of obtaining signatures from 2% of the union’s membership —
approximately 3,800 names based on 1982 membership — within
6 weeks of being rejected by the committee.
‘ Other Courts of Appeals have held that such fees may be granted in Title
IV cases. See Rollison v. Hotel, Motel, Restaurant and Construction Camp
Employees, Local 879, 677 F.2d 741 (9th Cir. 1982); Donovan v. Local 70 In-
ternational Brotherhood of Teamsters, 661 F.2d 1199 (9th Cir. 1981); Brennan
v. United Steelworkers (District 15) (District 31), 554 F.2d 586 (3rd Cir. 1978),
cert. denied sub nom. United Steelworkers v. Sadlowski, 435 U.S. 977 (1978)
(White J., dissenting); Usery v. Local 639 International Brotherhood of
Teamsters, 543 F.2d 369 (D.C. Cir. 1976), cert. denied, 429 U.S. 1123 (1977).
But see Marshall v. International Brotherhood of Teamsters, Local 20, 509 F.
Supp. 926 (N.D. Ohio 1981).
A-2
After protesting within the union the decision not to place her
name on the ballot, Carter retained Daniel E. Clifton and filed
suit against CSEA in the Eastern District of New York. She sought
a preliminary injunction prohibiting the union from conducting
the election. CSEA contested the court’s jurisdiction, arguing that
it was a public employee labor union and, therefore, not covered
by the LMRDA or the Labor Management Relations Act. Carter’s
counsel was able to demonstrate, however, that CSEA represented
a number of private-sector employees in industries affecting in-
terstate commerce and that the federal labor laws were ap-
plicable. On May 13, 1982, Judge Sifton denied Carter’s request
for a preliminary injunction on the ground that Carter had fail-
ed to show a likelihood of success on the merits. This litigation
was later dismissed as moot.
CSEA conducted a mail ballot election from May 15 to June 15,
1982. After the results were announced, Carter protested through
union channels the nominating procedures and the lack of a secret
ballot, but union officials refused to consider her protests, stating
that they were untimely filed.
In August, 1982, Carter submitted an election complaint to
the Secretary of Labor, pursuant to §402(a)(1) of the LMRDA,
29 U.S.C. §482(a)(1) (1982). Her counsel provided documenta-
tion to satisfy the Secretary that the CSEA was subject to the
LMRDA. Counsel also provided the Secretary with material to
show that Carter had exhausted her internal union remedies — a
stauttory prerequisite to the Secretary’s exercising jurisdiction to
investigate a union member’s complaint. See id.
The Secretary then filed suit against CSEA in the Northern
District on January 31, 1983. Carter subsequently intervened as
a plaintiff. The Secretary sought a declaration that CSEA had
violated § 491 (b) of the LMRDA, 29 U.S.C. § 481(b) (1982), by
failing to use secret ballots to conduct the election for statewide
offices. The Secretary also alleged that CSEA’s nominating pro-
cedures violated § 401(e) of the LMRDA, 29 U.S.C. § 481(e) (1982)
by instituting an arbitrary committee selection process and
unreasonable signature requirements for the nomination of cer-
tain candidates.
SIP Ste
A-3
The Secretary moved for partial summary judgment on the
secret ballot issue. CSEA cross-moved for summary judgment on
the ground that Carter had not exhausted her internal union
remedies. At the request of William M. Gonzalez, the attorney
for the Department of Labor, Carter’s counsel prepared papers
in opposition to CSEA’s cross-motion. On June 29, 1984, the court
granted the Secretary’s motion and denied the union’s cross-
motion. See 594 F. Supp. at 194-197.
Soon thereafter, the Secretary moved for partial summary judg-
ment on the issue of CSEA’s nominating procedures. The district
court denied this motion stating that the use of the nominating
committee standing alone violated the LMRDA, but that the
signature procedure afforded candidates a reasonable opportunity
to appear on the ballot. It concluded, however, in light of its deci-
sion on the secret ballot issue, that a rerun of the 1982 election
would be required. See 594 F. Supp. at 188-194. A new election
was held under the Secretary’s supervision on October 15, 1984.’
Carter appeared on the ballot but lost.
The Secretary appealed the denial of summary judgment on
the issue of CSEA’s nominating procedure. CSEA cross-appealed
the district court’s finding that Carter had exhausted her ad-
ministrative remedies. Carter again intervened, filed a brief, and
argued against the union’s cross-appeal. On May 1, 1985, we af-
firmed the district court on the issue of exhaustion of remedies
but reversed on the issue of nominating procedures. See 761 F.2d
870 (2d Cir. 1985). We held that the signature method for get-
ting on the ballot did not save CSEA’s nominating procedures
from attack because the signature requirement was not uniformly
applied to all candidates, but rather imposed a significant burden
on those not selected by the committee method.
? Prior to the district court’s decision, CSEA had agreed to discontinue its prac-
tice of automatically placing incumbents’ names on the ballot. Moreover, in
the rerun election, the Union required a member rejected by the committee
to obtain only 1000 petition signatures, instead of the 2% figure of 3800, order
to have the member's name placed on the ballot.
ceca
A-4
After our decision, Carter petitioned the district court for costs
and attorney's fees. Carter sought compensation for her counsel's
work in this lawsuit and in establishing that CSEA was govern-
ed by the LMRDA in the Eastern District litigation. Carter sought
fees for 369 1/4 hours of attorney time at the rate of $100 per
hour, plus costs of $861.20, for a total of $38,785.86. CSEA op-
posed the grant of fees arguing that there is no basis for such
an award under Title IV and, in the alternative, that the amount
sought was excessive.
The district court requested a statement from the Secretary
on whether attorney's fees may be awarded to intervenors under
Title IV and, if so, the appropriate amount to award to Carter.
The Secretary declined to take a position on these issues and in-
stead simply catalogued the assistance Carter’s counsel had
| rendered. The Secretary explained that Carter’s counsel had: (1)
| helped in ascertaining that CSEA was subject to federal jurisdic-
| tion under the LMRDA; (2) provided material showing that
| Carter had exhausted her internal union remedies; and (3) aid-
| ed during the appeal of the nominating procedures issue by ser-
| ving as a “ready reference” for information and by agreeing to
limit his argument to dealing with CSEA’s cross-appeal so that
| the Secretary could focus on the nominating procedure issue.
In a decision read from the bench, Judge Miner (then a district
| judge) held that attorney’s fees are recoverable by an intervenor
in a Title IV action, but that the amount Carter had requested
| was excessive. The court made no award for work performed by
| counsel during the unsuccessful Eastern District litigation, on
the appeal of the instant case, or on the fee application itself.
Judge Miner then disallowed half of the remaining hours sub-
mitted on the ground that they duplicated the Secretary’s
representation. Finally, the judge reduced the fee multiplier from
$100 to $75, the prevailing rate in the Northern District for
assisting, as opposed to lead, counsel. To this the judge added
a small allowance for expenses and for the fees of local counsel
bringing the total award to $7,112.10. The award was made in
an order dated July 30, 1985.
A-5
Carter appeals that part of Judge Miner’s decision in which
he refused to award fees for counsel’s work on the appeal or on
the fee application itself. CSEA cross-appeals, seeking reversal
of Judge Miner’s determination that Title IV permits a fee award.
CSEA argues, in the alternative, that Carter’s counsel’s work was
so duplicative of the Secretary’s efforts that the award should be
even further reduced or affirmed.
It is true that Title IV does not explicitly authorize the award
of attorney’s fees to intervenors and the American Rule is that
attorney’s fees are not available to the prevailing party in federal
litigation in the absence of statutory authorization. See Alveska
Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 257-259
(1975). However, as the Alyeska court stated, “Congress has not
repudiated the judicially fashioned exceptions to the general rule
against allowing substantial attorneys’ fees. .. .” Id. at 260.
We hold that the award of attorney’s fees to Title IV intervenors
is permissible under the “common benefit” exception to the
American Rule. This exception permits a court to compensate
a successful plaintiff where his efforts have resulted in a substan-
tial benefit to the members of an identifiable class of defendant
beneficiaries. See Hall v. Cole. 412 U.S. 1, 5-7 (1973); Mills v.
Electric Auto-Lite Co., 396 U.S. 375, 393-94 (1970).
In Hall, the Supreme Court held that attorney's fees may be
awarded to individual union members who bring suit to enforce
the “Bill of Rights” guarantees of Title I of the LMRDA. The
court reasoned that a successful Title I plaintiff, though primarily
seeking to vindicate his own interests, also benefits his fellow
union members by promoting the free speech rights guaranteed
by Title I. 412 U.S. at 8; see also Usery v. Local No. 639 Interna-
tional Brotherhood of Teamsters, 543 F.2d 369, 382-83 (D.C. Cir.
1976), cert. denied, 429 U.S. 1123 (1977) (citing “common benefit”
awards in cases under Titles III and V of the LMRDA).
We believe that the logic of Hall and the LMRDA “common
benefit” cases should be extended to allow attorney’s fees to Ti-
tle IV intervenors. We are mindful that tle enforcement scheme
of Title IV differs from that of the other LMRDA Titles. Although
a
A-6
the other Titles rely on the private enforcement efforts of in-
dividual union members,’ Title IV gives the Secretary of Labor
exclusive authority to bring post-election challenge suits and per-
mits the aggrieved election candidate to intervene solely to sup-
port the Secretary’s complaint. See Trbovich v. United Mine
Workers, 404 U.S. 528, 530-537 (1972). We hold, nevertheless,
that Title IV’s requirement that the Secretary prosecute post-
election challenge suits does not mean that courts may not
recognize the contribution of individual union members and
reimburse them for their expenses. As complainants and Trbovich
intervenors, “[t]heir contribution may yield a substantial, and
properly compensable, benefit to the membership exceeding that
derived from the Secretary's efforts.” Usery, supra, 543 F.2d at 383.
The first step in Title IV enforcement is for a union member
to challenge the election through internal union procedures. The
Secretary of Labor has no duty or authority to investigate a com-
plaint until union procedures have been exhausted or have pro-
ven futile. If the Secretary finds probable cause to believe that
a violation has occurred, he must bring an action to set aside
the invalid election within 60 days of the filing of the union
member’s complaint. See LMRDA § 402, 29 U.S.C. § 482 (1982).
The Secretary may seek to overturn an election only on grounds
raised in “some discernible fashion” by the union nember’s pro-
test to the union. Hodgson v. Local 6799, United Steelworkers,
403 U.S. 333, 340-41 (1971); see also Wirtz v. Local 125, Laborers’
389 U.S. 477, 484 (1968).
* Title I, the Bill of Rights of union members, relies on private enforcement
by union members and provides for “such relief (including injunctions) as may
be appropriate,” 29 U.S.C. § 412 (1982). Title II, reporting provisions, also relies
on private enforcement, but expressly provides for the discretionary award of
attorney's fees, 49 U.S.C. § 431(c) (1982). Title III, union trusteeships, provides
for private enforcement, and, like Title I, approves the issuance of such relief
as may be appropriate, 29 U.S.C. § 464(a) (1982). Title V, fiduciary respon-
sibility of union officers, permits union members to sue privately, and specifically
indicates that attorney's fees are part of the “appropriate relief” recoverable,
29 U.S.C. § SO1(b) (1992).
und oe pee oe
A-7
Thus, the use of enforcement procedures by the Secretary
depends on the diligence of the individual union member. See
Brennan v. United Steelworkers (District 15) (District 31), 554
F.2d 586, 595 (3d Cir. 1977), cert. denied sub nom. United
Steelworkers v. Sadlowski, 435 U.S. 977 (1978) (White J., dissen-
ting). The Secretary’s authority to sue and any benefits that
ultimately accrue to the union membership through the
Secretary’s prosecution derive from the initial efforts of the in-
dividual complainant.
Given the individual union member’s pivotal role in Title IV
enforcement, it is essential that the member be able to obtain
competent counsel. The burden of investigating violations and
pursuing them through union channels is an onerous one, and
the individual union member may not be able to get the necessary
assistance of counsel if attorney’s fees are unavailable. Thus, the
availability of attorney’s fees is fundamental to the protection
of union members’ rights under Title IV.
We note that a contrary view has been expressed by Justice
White. In a dissent from the Court’s denial of certiorari in United
Steelworkers v. Sadlowski, 435 U.S. 977, 77-980, he disputed the
propriety of invoking the “common benefit” exception to the
American Rule on behalf of intervenors in Title IV cases. He
argued that because Trbovich limited the intervenor’s role to press-
ing, in his own individual manner, the claims of illegality
presented in the Secretary of Labor's complaint, it is the Secretary,
not the intervenor, who provides the “common benefit” by cham-
pioning the public interest in free and democratic union elec-
tions. Id.
This argument minimizes the importance of the intervenor’s
initial role in bringing possible Title IV violations to the
Secretary's attention. Even if the intervenor provides little benefit
at the trial stage compared to that provided by the Secretary,’
* Although the individual union member's contribution is most important dur-
ing the period before the Secretary takes over, the individual’s more limited
role as an intervenor does not necessitate the conclusion, as a matter of law,
that the member can render no further benefit once the Secretary has assumed
control of the litigation. The intervenor may obtain information which might
(footnote Continued)
the intervenor usually confers a substantial benefit on the union
membership by identifying, investigating and presenting for the
Secretary’s ultimate prosecution, evidence of union violations of
Title IV.
The case before us is instructive. Carter's counsel performed
essential investigative work which later aided the Secretary on
the jurisdictional question of whether the union was subject to
the LMRDA. Counsel also guided Carter’s protest through union
channels, thereby laying the foundation for the Secretary’s
challenge to CSEA’s nominating procedures and to CSEA’s failure
to use a secret ballot.
These contributions by Carter and her counsel redounded to
the benefit of the entire CSEA membership. As the Hall deci-
sion notes, when the individual union member vindicates his
rights under the LMRDA, the membership as a whole benefits
from the promotion of union democracy. See Hall, supra, 412
U.S. at 8-9. The individual’s present victory creates a beneficial
impact on the future conduct of the uniocn’s affairs.
As a direct result of the efforts of Carter and her counsel, it
has been shown that CSEA is covered by the LMRDA, thus
guaranteeing CSEA’s members all the important protections of
that Act. Carter’s challenge was not to a single district election,
but to a statewide election. Moreover, the benefits from this suc-
cessful litigation are not limited to the supervised rerun of one
isolated election, but will continue to be felt in future CSEA elec-
tions. As the whole membership of CSEA has shared in the fruits
of Carter’s labors, it is fair to charge the membership with some
of the costs of these labors under the “common benefit” rational.
See Rollison, supra, 677 F.2d at 748; Brennan, supra, 544 F.2d
at 604-07; Usery, supra, 543 F.2d at 383.
Footnote Continued
be difficult for the Secretary to find; and, a plaintiff-intervenor may offer signifi-
cant contributions to the court's understanding of the case. See Brennan, supra,
554 F.2d at 505; Usery, supra, 543 F.2d at 384. See also Marshall v. United
Steelworkers, 666 F.2d 845 (3d Cir. 1981). cert. denied, 459 U.S. 823 (1982).
The determination as to the extent to which the intervenor has provided a
“common benefit” is best made by the district court.
A-9
In urging that awards of counsel fees are not authorized, CSEA
argues that Title IV of the LMRDA represents the type of ex-
plicit, comprehensive and exclusive remedial scheme that bars
an intervenor’s recovery of attorney’s fees. See Fleischmann Distill-
ing Corp. v. Maier Brewing Co., 386 U.S. 714 (1967). In sup-
port, CSEA notes that other LMRDA Titles make specific pro-
vision for attorney’s fees or other appropriate relief, while Title
IV does not have a specific remedial provision.’ CSEA also points
out that Congress rejected a bill, H.R. 8342, 86th Cong., Ist Sess.
§ 402(a) (1959), which would have provided for union member
suits under Title IV, and would have authorized the award of
attorney’s fees.
We do not accept CSEA’s statutory preclusion argument.
Supreme Court decisions after Fleischmann have enunciated a
presumption against statutory preclusion of courts’ traditional
power to grant attorney’s fees in appropriate circumstances. See,
Hall, supra; Mills, supra. In Hall, the court upheld a “common
benefit” award of attorney’s fees to a union member in his suc-
cessful Title I action despite the fact that Title I provides only
for “such relief (including injunctions) as may be appropriate,”
and does not, like Titles II and V, explicitly mention attorney’s
fees as a form of available relief.*
Mills and Hall express an unwillingness to infer Congressional
intent to preclude awards of attorney’s fees unless the statutory
remedies have been “ ‘meticulously detailed’ ”, Hall, supra, 412
U.S. at 9, or there has been a “ ‘definitive and absolute setting
of the Congressional face against the giving of such incidental
relief by the courts where compatible with sound and establish-
ed equitable principles, ” id. at 12. We cannot say that Title IV
represents this type of comprehensive remedial scheme. As the
* See note 3, supra.
* The Hall court stated:
Confronted with a virtually identical situation in Mills, we explained that
the inclusion in certain sections of the Securities and Exchange Act of 1934 of
express provisions for recovery of attorneys’ fees “should not be read as denying
to the courts the power to award counsel fees in suits under other sections of
the Act when circumstances make such an award appropriate. .. .”
412 US. at LI [citation omitted].
A-10
many decisions interpreting Title IV’s provisions suggest, the
courts have had to flesh out the details of the Title IV enforce-
ment scheme. See Usery, supra, 543 F.2d at 387.
Nor are we persuaded that the courts are precluded from awar-
ding attorney’s fees to intervenors because Congress rejected a
private enforcement scheme and entrusted the Secretary of Labor
with the primary responsibility for enforcing Title IV. The
legislative history of Title IV reveals that Congress focused on
the relative merits of public versus private enforcement — it did
not consider the possibility of union members intervening in suits
brought by the Secretary or the propriety of awards to successful
intervenors. See Brennan, supra, 554 F.2d at 595; Usery, supra,
543 F.2d at 387. Moreover, as our discussion of the “common
benefit” award of attorney’s fees indicates, Congress created a
significant role for the individual union member in Title IV’s
enforcement scheme. This supports our conclusion as “legislatures
do not ordinarily create roles — strong roles— and then deny their
existence by refusing to recognize the existence of the means to
fulfill them effectively.” Brennan, supra, 554 F.2d at 599.
Congress opted for the public enforcement scheme to protect
unions from frivolour litigation by individual union members and
to avoid multiple suits by allowing the Secretary to consolidate
all meritorious compliants concerning a union election in a single
proceeding. As the Trbovich court recognized in upholding union
members’ rights to intervene in suits brought by the Secretary,
“There is no evidence that Congress was opposed to participa-
tion by union meiabers in the litigation, so long as that participa-
tion did not interfere with the screening and centralizing func-
tions of the Secretary.” 404 U.S. at 532-33. Similarly, we believe
that Congress did not intend to interfere with the courts’ equitable
powers to award attorney’s fees to Title IV intervenors if the
award does not conflict with the above statutory goals.
Justice White has argued that such a conflict does arise if at-
torney’s fees are assessable against a union on behalf of in-
tervenors. He suggests that the adjudication of whether an in-
tervenor has conferred a “common benefit” on his fellow union
members would involve the “burdensome multiple litigation”
Congress sought to avoid. See Sadlowski, supra, 435 U.S. at 978.
We disagree.
Ra Pah leh SANSOME Tt LIISA hs tS 8m
CRG SRM
- a ge
A-11
We do not think that the court’s resolution of what fees, if any,
are appropriate in cases such as this amounts to “burdensome
multiple litigation.” “[T]he primary objection to the provision
for member suits was that it might lead to multiple litigation
in multiple forums, and thereby impose on the union the severe
burden of mounting multiple defenses.” Trbovich, supra, 404 U.S.
at 534. None of these evils are presented when an intervenor peti-
tions the court for attorney’s fees. The court and the parties are
fully familiar with the contribution, if any, made by intervenor’s
counsel. Thus, the additional burden to the union in responding
to the petition is minimal.
Finally, we reject the suggestion that awarding attorney’s fees
in Title IV cases will invite unnecessary intervention and create
a disincentive to the Secretary’s own rigorous enforcement of the
statute. Although the Secretary has declined to take a position
on the propriety of awarding attorney’s fees, he has acknowledged
that Carter’s counsel did provide some valuable assistance. We
think that the award of attorney’s fees where intervenors have
made a real contribution will enable intervenors to obtain the
necessary legal assistance without threatening the Secretary’s
predominant role in the enforcement scheme. See Brennan, supra,
554 F.2d at 599; Usery, supra, 543 F.2d at 385 n.45. According-
ly, we hold that an award of attorney’s fees to Carter is consis-
tent with Title IV of the LMRDA.
Judge Miner cut the requested allowance from $38,785.86 to
$7,112.10. Those fees that were granted were predominantly for
counsel’s work done preliminary to, and not duplicative cf, the
Secretary’s representation. The judge allowed fees for only a small
fraction of counsel’s time spent once the Secretary had taken over.
We believe that such limitation encourages proper attention to
the initiation of complaints without conflicting with the policy
of limited intervention.
We agree with the district court’s disposition of the applica-
tion for fees, with the exception of the denial of fees for counsel’s
time spent on the fee application itself. The fee application is
a necessary part of the award of attorney’s fees. If the original
award is warranted, we think that a reasonable amount should
be granted for time spent in applying for the award.
A-12
Judge Miner, in denying this aspect of the request for fees, cited
Colpo v. Teamsters Local 326, 531 F. Supp. 573 (D. Del. 1982).
There, the court relied upon “common fund” precedents to deny
a Title IV intervenor’s request for attorney’s fees for work on the
fee application itself. In “common fund” cases the attorney seeking
fees has a conflict with his clients, who are to recover out of a
fund secured in the litigation, because the award of “fees for fees”
further depletes the common fund. The Colpo court confused
“common benefit” with “common fund.” In LMRDA “common
benefit” cases, the benefit is the vindication of statutorily-
conferred rights, not a fund that would be depleted by an award
of attorney’s fees. Thus, there is no conflict of interest between
the attorney and his client that would preclude compensation
for time spent in litigating the fee application. See Pawlak v.
Greenawalt, 713 F.2d 972, 980-84 (3d Cir. 1983), cert. denied,
104 S. Ct. 707 (1984). We hold that Carter should be awarded
an additional $1,537.50 (20.5 hours x $75) for her counsel’s work,
adequately recorded, in preparing the fee application itself.
Carter also appeals that aspect of Judge Miner’s decision de-
nying fees for counsel’s work on the appeal of the nominating
procedures issue. We agree with Judge Miner that counsel’s ef-
forts on the appeal duplicated the work of the Secretary; both
the Secretary and Carter briefed the nominating procedures issue
and responded to CSEA’s cross-appeal regarding Carter’s alleg-
ed failure to exhaust internal union remedies.
We do not view the work done by counsel in argument of the
appeal to be sufficiently distinct from the Secretary’s represen-
tation or beneficial to the union membership to warrant com-
pensation for such work. Once a record has been made in the
district court, the Secretary’s need for additional assistance is
minimal.
We affirm the decision of the district court granting Carter
$7,112.10 in attorney’s fees and add to that the sum of $1,537.50
for the fee application, a total of $8,649.60. The case is remand-
ed for entry of an order in accordance with this opinion.
a Weis |
A-13
APPENDIX A
Decision of the United States District Court,
Northern District, New York, July 26, 1985
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
RAYMOND J. DONOVAN, Secretary of Labor, United States
Department of Labor,
Plaintiff,
—~and—
HELEN CARTER,
Plaintiff-Intervenor,
— against —
CSEA LOCAL UNION 1000,
AMERICAN FEDERATION OF STATE,
COUNTY AND MUNICIPAL EMPLOYEES, AFL-CIO,
Defendant.
ORDER 83-CV-108 (Miner, J.)
The motion of Intervenor Helen Carter for an award of at-
torneys fees having come on for hearing before this Court on Ju-
ly 26, 1985, and the Court having considered the motion and
rendered a decision on the record, it is hereby
ORDERED that attorneys fees and costs be awarded to the
Intervenor in the amcunt of $7,112.10.
Dated: July 30, 1985
ROGER J. MINER, U.S.D.].
A-14
THE COURT: The secretary has expressly declined to adopt
a position as to the propriety of the legal basis of a fee award
in a Title IV case.
However, the Secretary has commented on the intervenor’s con-
tributions to this law suit as follows, and I quote:
“First, counsel for intervenor aided the Department in the
preparation of the instant action by providing documentation
and argument to satisfy the agency that the defendant union was
a labor organization and was engaged in an industry affecting
commerce within the meaning of the LMRDA. This material
identified the private sector not-for-profit corporations whose
employees were represented by CSEA. These submissions did not
duplicate any efforts of the Secretary and supported the investiga-
tion findings that the Secretary had probable cause to find the
union subject to the requirements of the LMRDA.
“Second, counsel for intervenor aided the Department prior
to the filing of the Secretary’s complaint in the instant action
by providing material to show his client Carter had exhausted
her internal union remedies. Such exhaustion is a statutory prere-
quisite to the Secretary exercising jurisdiction to investigate the
union member’s complaint. 29 U.S.C. Section 482(c). Because of
the limited 60-day time period available under the LMRDA to
investigate a member's allegations, counsel’s framing of issues and
submission of materials aided the Secretary’s investigation. 29
U.S.C. Section 402(b).
“Third, the Secretary acknowledges certain assistance by
counsel for intervenor during the secretary’s appeal to the Court
of Appeals for the Second Circuit of this court’s denial of Plain-
tiffs motion for summary judgment on defendant’s nominating
procedures and the defendant’s Cross-Appeal of this Court’s denial
of its motion for summary judgment on internal exhaustion. In-
tervenor’s counsel served as a ready reference for information,
especially of acts pertaining to the intervenor and exhaustion of
union remedies. Counsel further cooperated with the department
by an agreement to share the time alloted for oral argument by
the Court of Appeals. While the Secretary briefed his positions
on both the Appeal and Cross Appeal, the Secretary was able
eRe es Oe ree
A-15
under the agreement to use ali the oral argument time on the
appeal of the alleged nominating procedure violation and not
duplicate oral argument to the court on the cross-appeal issues.”
That is the end of the quote from the information furnished by
the Secretary.
One could hardly consider these comments to evidence any
intervenor “who materially aided the Secretary of Labor in suc-
cessfully prosecuting the case so as to have conferred a benefit
on the union’s membership.” Rollison v. Hotel Motel Employees,
677 F.2d 741, 748 (9th Cir. 1982). Nor may this be said to reflect
“ongoing and vital” assistance. Donovan v. Local 70, Teamsters,
661 F.2d 1199 (9th Cir. 1981).
While the Secretary’s comments were not as strong as they have
been in other cses, I think the case law justifies a fee award
generally. It must, however, reflect the extent of the intervenor’s
assistance. Most appealing to me is the decision on the remand
of Brennan v. United Steelworkers, 501 F. supp. 912 (W.D. Penn-
sylvania, 1981). The District Court adopted a magistrate’s fac-
tual finding that no benefit was conferred and no fees were re-
quired. The Third Circuit affirmed in part and reversed in part.
Marshall v. United Steelworkers, 666 F.2d 845 (3rd Cir. 1981),
cert. denied 459 U.S. 823 (1982). The Court allowed fees for time
spent in exhausting union remedies and filing a complaint with
the Secretary. Fees for the period after the secretary took over
were denied. Primarily as duplicative or as more for the benefit
of one candidate and not for common benefit.
So it makes sense in this case for me to award reasonable fees,
and fees to assure vigorous attention to the initiation of com-
plaints, but not to conflict with the ploicy underlying limited
intervention. Fees should be allowed only for a small fraction
of the time spent once the secretary has taken over.
So of the 344 hours submitted for billing, I have subtracted
131 1/4 hours for work on Carter’s suit before Judge Sifton. And
that leaves 212.75 hours.
From that I have subtracted 20.5 hours spent on fee applica-
tion. See Colpo v. Teamsters Local 326, 531 F. Supp.573 (D.Del.
1982). The application for fees to get fees are not allowed.
A-16
APPENDIX A
Order of United States District Court, Northern
District, New York, filed August 1, 1985
I also then disallowed counsels recent supplemental applica-
tion for hours spent on the second trip, for 10.5 hours, and no
expense of $236.60, and there remains then 192.25 hours, and
I subtracted the 25 hours spent or planned to be spent on
appeal — although the Secretary commented on intervenor’s par-
ticipation here, it could only have been duplicative. Leaving
167.25 hours in light of the Secretary's representation and I would
cut that in half, and 83.5 hours and I am allowing $75.00 a hour,
the prevailing rate in this district, because counsel played at best
a secondary role here. And 83.5 hours times $75.00 is $6,262.50.
Allowing $524.60 for expenses, and that $6,787.10.
For local counsel, I have allowed a total of 6.5 hours at $50.00
an hour for $325.0, and I added to the $6,787.10 the sum of
$325.00, for local counsel, and the total award is $7,112.10.
An order may be submitted by 5:00 o'clock Thursday, referr-
ing to the decision on the record. (Whereupon the procedures
were concluded.)
DONOVAN v. CSEA, #85-6238
WINTER, Circuit Judge, dissenting:
Because I agree with the views expressed by Justice White in
his dissent from the denial of certiorari in United Steelworkers
v. Sadlowski, 435 U.S. 977 (1978), I respectfully dissent.
®
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7
i
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AM OMT HH
A-17
APPENDIX A
Decision of United States District Court,
Northern District, New York, July 19, 1984
RAYMOND J. DONOVAN, Secretary of Labor,
United States Department of Labor,
Plaintiff,
—and—
HELEN CARTER,
Plaintiff-Intervenor,
ilies
CSEA LOCAL UNION 1000,
AMERICAN FEDERATION OF STATE,
COUNTY AND MUNICIPAL EMPLOYEES, AFL-CIO,
Defendant.
No. 83-CV-108.
United States District Court,
N.D. New York.
July 19, 1984.
ORDER MINER, District Judge.
I
The present motion by the Secretary for partial summary judg-
ment, Fed.R.Civ.P. 56(a), is addressed to that aspect of the
Secretary’s complaint which charges that defendant CSEA’s June
15, 1982 mail ballot election violated § 40l(e) of the Labor-
Management Reporting and Disclosure Act (“LMRDA”) by im-
posing unreasonable candidacy requirements and thereby deny-
ing union members the right to be candidates. The heart of the
challenge is not to the election itself but rather to the nominating
procedures. On June 29, 1984, this Court granted the Secretary’s
motion for partial summary judgment on his claim that the elec-
tion violated the LMRDA's secret ballot provisions. A transcript
of that decision is appended hereto and incorporated herein.
1
Nominations for the CSEA election are governed by Article IV
of the union’s constitution. A statewide nominating committee,
A-18
consisting of members selected by the executive board of each
of six regions, is required by the constitution to select at least two
nominees for the statewide positions of president, executive vice-
president, secretary and treasurer. Nominees are selected from
among those union members in good standing who have timely
submitted a “Request to Be a Candidate” form. In 1982, the com-
mittee consisted of eighteen appointed members, and a plurali-
ty vote of the committee was required for a nominee to be plac-
ed on the ballot.
The constitution provides no written guidelines to committee
members in their selection from among eligible nominees.
Members are free to use their own judgment in casting their votes
for a candidate. What qualifications are required for statewide
office are not set forth in any written or oral instructions to
members. The union’s position in this litigation, however, is that
the committee selects the best qualified candidates.
Nominations are also placed on the ballot automatically by
the committee for those incumbent officers who choose to run
again for office. All incumbents chose to be on the ballot in 1982
and were successful in retaining three of the four statewide of-
ficer positions. A union member who is rejected by the commit-
tee may seek to have his or her name placed on the ballot by
independent petition. He or she then has a period of approximate-
ly six weeks from notice of the committee's rejection to obtain
signatures of not less than two percent of the CSEA members,
which in 1982 meant obtaining over 3,800 signatures in six weeks
from members located throughout New York State.
Only one of the candidates on the 1982 ballot was placed there
by official petition. Four candidates were incumbents who needed
only to consent to be on the ballot, and only four candidates were
nominated by the committee for the four positions, although the
constitution requires at least two nominations for each position
and places no bar to 2 greater number of nominees.
Il
Section 401(e) of the LMRDA, 29 U.S.C. § 481(e) provides, in
pertinent part:
a reasonable opportunity shall be given for the nomina-
tion of candidates and every member in good standing
shall be eligible to be a candidate and to hold office
(subject to section 504 of this title and to reasonable
qualifications uniformly imposed) and shall have the
right to vote for or otherwise support the candidate
or candidates of his choice ....
Whether a particular procedure is reasonable and capable of
uniform application depends to a great extent on its consistency
with the purposes of the Act. The main purpose of the Act, of
course, is to prevent undemocratic practices in union governance.
“Thus, any qualifications that unduly interfere with a free choice
of candidates are at cross-purposes with [the Act] and are not
‘reasonable’ ” Donovan v. Local Union No. 120, Laborers’ In-
ternational Union, 683 F.2d 1095, 1102 (7th Cir.1982).
The Supreme Court has considered the
reasonableness of a qualification for office under §
481(e) on two occasions. In [ Wirtz v. Hotel, Motel and
Club Employees Union, Local 6, 391 U.S. 492, 88 S.Ct.
1743, 20 L.Ed.2d 763 (1968)] the Court invalidated a
union rule that restricted eligibility for major union
offices to those who held, or who had previously held,
some union elective office. The rule was found not to
be a “reasonable qualification” because it rendered 93 %
of the union membership ineligible for higher office,
thus making free and democratic elections impossible.
Similarly, in [Local 3489, United Steelworkers of
America v. Usery, 429 U.S. 305, 97 S.Ct. 611, 50
L.Ed.2d 502 (1977)] the Court found a meeting atten-
dance rule invalid because it excluded 96.5% of the
union membership from office. The Court decided that
the antidemocratic effects of the rule outweighed any
benefits derived from it.
A-20
683 F.2d at 1102-03 (footnotes omitted).
The present case does not fall precisely within the holdings
of either of those two cases. In Wirtz v. Hotel, Motel and Club
Employees, 391 U.S. 492, 88 S.Ct. 1743, 20 L.Ed.2d 763, however,
the Court provided some general guidance when it noted that
“Congress plainly did not intend that the authorization in § 401(e)
of ‘reasonable qualifications uniformly imposed’ should be given
a broad reach. The contrary is implicit in the legislative history
of the section and in its wording. . . ” Id. at 499, 88 S.Ct. at 1748.
The Court went on to conclude that in elections, “the assump-
tion is that voters will exercise common sense and judgment in
casting their ballots.” Id. at 504, 88 S.Ct. at 1750.
In the instant case, ten CSEA members sought nomination for
office by submitting “Request to be a Candidate” forms. The
Secretary argues that although the committee was not limited
by the union’s constitution to a maximum number of candidates
per office, it selected only two candidates for president, one each
for executive vice-president and treasurer, and none for secretary.
As a result, the Secretary concludes, the committee's procedures
reduced the opposition to all incumbents who chose to re-run
for these elected offices.
The Secretary concedes that unions have a legitimate interest
in imposing minimum standards for candidacy and office-holding
in the organization but urges that a balance must be struck with
“the dominant purpose of the Act [which] is to ensure the right
of members to participate fully in governing their union and to
make its officers responsive to the members.” 29 C.F.R. § 452.35.
Although the nomination procedures challenged here impos-
ed no express qualification requirements, the thrust of the
Secretary's attack is that the nominating committee substituted
its judgment for that of individual union members. In particular,
the Secretary argues that two committee members appeared to
have weighed experience in prior CSEA office as a factor in deter-
mining qualification for candidacy. Although here not a formally
articulated policy, this type of requirement is precisely the type
struck down by the Supreme Court in Wirtz v. Hotel, Motel and
A-21
Club Employees, 391 U.S. 492, 88 S.Ct. 1743, 20 L.Ed.2d 763.
See also Wirtz. v. National Maritime Union, 399 F.2d 544, 550
(2d Cir.1968) (“It must be left to the judgment of each member
to determine in particular instances how much weight to give
to prior experience”),
Even more importantly, the Secretary challenges the fact that
the committee was acting in the absence of any valid criteria or
guidelines, leaving each committee member with unbridled
discretion to determine who would be candidates, thereby
precluding any uniform imposition of requirements. The deci-
sion of the Seventh Circuit in Donovan v. Local Union No. 120,
Laborers’ International Union, 683 F.2d 1095 (7th Cir.1982), of-
fers compelling support for the Secretary’s position. Although that
case dealt with a formal competency requirement embodied in
the union’s constitution, the reasoning of the court is equally per-
suasive here:
A second and related problem, also noted by the Secretary in
29 C.F.R. § 452.53 is the subjectivity inherent in the application
of a vague and general qualification. Without further definition,
a judgment that a candidate is or is not “competent to perform
the duties of the office” is almost totally subjective. Therefore,
the decision to disqualify is largely discretionary, even arbitrary.
The question of who judges the qualification becomes vital to
its reasonableness under § 481(e). In the case at bar, the deci-
sionmakers were three Judges of Election appointed by the in-
cumbent Board. When so much discretion is placed in the hands
of those chosen by the incumbents, the possibilities for abuse are
clear, and free and democratic elections are threatened.
The vague and subjective nature of a competency qualifica-
tion also brings it into conflict with the specific mandate of §
481(e) that reasonable qualifications be “uniformly imposed.” In
this case, the district court found “that the Judges of Election
did not apply uniform guidelines in considering the competen-
cy of candidates appearing before them,” and that neither the
Local nor the Judges of Election “adopt[ed] any specific factors
A-22
to be considered in determining the competency of a candidate
under Article V, Section 3.” Due to the significant role of per-
sonal judgment in determining “competency,” it is unlikely that
there can be uniform application of the provision. Unlike a
qualification for office relating to the minimum age or the
minimum length of union membership of the candidate, a corm-
petency provision cannot be applied with the precision and cer-
tainty necessary to ensure it is “uniformly imposed.” A literacy
requirement similar to that imposed by the Local’s Constitution
might be capable of uniform application if certain objective tests
are administered to measure ability to read and write. A can-
didate’s competency, on the other hand, cannot be readily deter-
mined by an objective test; a candidate's fitness for the office of
union president, for example, cannot be readily determined by
an objective test; a candidate's fitness for the office of union presi-
dent, for example, cannot be readily determined by tests for
leadership, loyalty and administrative ability. Though the office
at issue in this case, that of Secretary-Treasurer, might make rele-
vant some sort of objective test for record-keeping or accounting
ability, there are no tests to evaluate the other, less tangible,
qualities associated with “competency.”
A final antidemocratic effect results because the competency
provision prevents the membership from making just the sort of
evaulation elections are intented to provide. It is certainly true,
as the Local submits, that in the abstract competency is a most
appropriate qualification for office. Congress intended to ensure
competent office holders through the provisions of the Act.
However, Congress intended that competent officers be provid-
ed through a system of free and democratic elections, not through
a screening of candidates by a tribunal using a standard vague
enough to allow it to veto any particular candidate.
As stated by the Court in Hotel Employees, 391 U.S. at 504,
88 S.Ct. at 1750, “Congress’ model of democratic elections was
political elections in this country .... [T]he assumption is that
voters will exercise common sense and judgment in casting their
ballots.” The Local’s system of having a tribunal pre-judge the
competency of candidates for office does not correspond to the
process of policital elections. As stated by the Secretary: “In union
A-23
elections as in political elections, the good judgment of the
members in casting their votes should be the primary determi-
nant of whether a candidate is qualified to hold office.” 29 C.F.R.
§ 452.35 (1981).
We conclude that the requirement of competency, lacking an
objective standard, permits arbitrary and subjective barring of
candidates by the Judges of Election. By its nature it cannot be
uniformly imposed, and it is likely to obstruct the democratic
process intended by Congress. Accordingly, it does not qualify
as a “reasonable qualification” for office under 29 U.S.C. § 481(e),
capable of being “uniformly imposed.”
683 F.2d at 1104-05.
This holding appears to impel the conclusion that CSEA’s
nominating procedures similarly are violative of the Act.
Moreover, consistent with the holding in Donovan v. Local
120, the Secretary contends that CSEA’s process further violates
the Act because potential candidates are not put on notice as to
the specific standards that will be employed by the committee
in determining his or her candidacy. The Local 120 court wrote:
[T]he requirement that a candidate be competent to
perform the duties of the office he seeks is vague and
does not provide the potential candidate with notice
of the specific standards he must meet to get on the
ballot. This problem is emphasized by the Secretary,
to whom Congress has given a significant role in the
administration of the Act. The Secretary has stated:
An essential element of reasonableness is ade-
quate advance notice to the membership of the
precise terms of the requirement.... Qualifica-
tions must be specific and objective. They must
contain specific standards of eligibility by which
any member can determine in advance whether
or not he is qualified to be a candidate. For ex-
ample, a constitutional provision which states that
A-24
“a candidate shall not be eligible to run for of-
fice who intends to use his office as a cloak to ef-
fect purposes inimical to the scope and policies
of the Union” would not be a reasonable qualifica-
tion within the meaning of section 481(e) because
it is so general as to preclude a candidate from
ascertaining whether he is eligible and would per-
mit determinations of eligibility based on subjec-
tive judgments. Further, such a requirement is by
its nature not capable of being uniformly impos-
ed as required by section 481(e).
29 C.F.R. § 452.53 (1981). A competency qualification
suffers from the same deficiencies as the example set
forth by the Secretary. The term “competent” is general
and ambiguous, and when made a qualification for
office does not allow a member to take steps to ensure
that he will be eligible for the ballot. The qualifica-
tion is antidemocratic to the extent it discourages poten-
tial candidates by its vagueness.
683 F.2d at 1103-04.
The court harbors no doubts that, standing alone, the CSEA
procedures discussed above are indeed antithetical to and
therefore violative of the fundamental purposes of the Act. These
procedures, however, do not stand alone; instead, they are sup-
ported by alternative nominating procedures, freely and
reasonably available to those union members who aspire to elected
office. While, concededly, the need to submit a petition reflec-
ting two percent membership support (in this case, just over 3,800
names) presents more difficulty for a nomination-seeking union
member than the simple expedient of submitting a “Request to
be a Candidate” form to the nominating committee, that alter-
native cannot be found to provide less than a “reasonable op-
portunity.” Any contention to the contrary is belied both by the
factual record before the Court and by the interpretation given
those words by relevant case law. There is nothing inherently
unreasonable in requiring a prospective candidate to garner and
demonstrate minimal membership support. Indeed, the precise
manner of gathering such support necessarily is embodied in any
A-25
candidate’s campaign itself. Because any prospective candidate
is free to have his or her name placed on the bailot simply by
attracting minimal rank and file support, he or she is afforded
reasonable opportunity to become a candidate.
Viewed as a “qualification” requirement, the petitioning route
is at once both manifestly reasonable and consonant with the
purposes of the Act. First, it assures that qualification is measured
solely in terms of membership support; second, it is the
democratic voice of the union electorate that determines just such
qualification. Because “the reasonableness of qualifications for
office depends to a great degree on the extent to which members
are not prevented from running for office and the extent to which
the membership can make a free electoral decision,’ Donavan
v. Local 119, International Union of Electrical, Radio ¢- Machine
Workers, 548 F.Supp. 997, 1003 (E.D.Pa.1982), modified, 548
F.Supp. 1004 (E.D.Pa.1982), the independent ballot inclusion
device made availble by CSEA satisfies the statutory requirements.
As a factual matter, the record makes ciear that the petition
requirement here provided more than reasonable opportunity for
members to gain candidate status. Most significantly, the only
member who opted for such a route was overwhelmingly suc-
cessful in her endeavor. Indeed, she attributes her ultimate elec-
tion victory directly to her petitioning efforts. The process was
both inexpensive and informal, and was compatible with the elec-
toral desires of anyone who aspired to union leadership.
The Court rejects the Secretary’s characterization of the pro-
cedure as potentially stigmatizing, since the ballot itself does not
in any way reflect how a candidate’s name came to appear
thereon. Moreover, since, as the Secretary contends, union
members are completely unaware of the factors going into can-
didate nomination, there is no reason to believe that candidates
lacking committee endorsement would be perceived as less
qualified.
Because members desirous of candidacy had a reasonable op-
portunity to have their names placed on the ballot and because
the general membership was thereby assured an opportunity to
A-26
exercise their vote in a wholly democratic fashion, there is no
merit to the Secretary’s position and the nominating procedures
cannot be said to violate the LMRDA: In light of this disposi-
tion, and in accordance with this Court’s previous determina-
tion of June 29, voiding the 1982 election, the only question re-
maining is that of remedy.
Under section 402(c) of the LMRDA, 29 U.S.C. § 482(c), the
Secretary is to conduct a new election “so far as lawful and prac-
ticable, in conformity with the consitution and bylaws of the labor
organization.” While the Secretary seeks a new election within
ninety days, CSEA argues that as a matter of equity, it should
be permitted to have the new election conducted in June of 1985
at its regularly scheduled time. The dilemma facing the Court
is a distressing one. The great expense of conducting an immediate
new election and then another in less than a year seems a high
price to pay in a case where, as here, there was no evidence of
fraud or bad faith, but rather only mistaken judgment. On the
other hand, to allow the present elected officers to remain in of-
fice for another eleven months notwithstanding the taint imposed
on their offices by the violative 1982 election would do a great
disservice to the democratic principles that serve as the cor-
nerstone of the LMRDA.
In support of its equitable argument, CSEA relies on the deci-
sion of the Second Circuit in Usery v. International Organiza-
tion of Masters, Mates and Pilots, 538 F.2d 946 (2d Cir.1976). While
that decision expressed general equitable concerns, particularly
over the union’s incurring unnecessary expenses, the facts of that
case are sufficiently distinguishable from those present here. First,
the taint from the challenged election had been diminished
somewhat by an unsupervised, though proper, intervening elec-
tion. Second, at the time the Secretary was to conduct the election,
1. The Secretary also argues briefly that CSEA’s method of automatically piac-
ing incumbents’ names on the ballot constitutes a separate and additional viola-
tion uf the Act. While there may be merit to this contention, the Court need
not address it here since counsel for CSEA represented to the Court at oral argu-
ment that that procedure no longer will be employed.
Bath ts tbe SSrisiny Be Se
A-27
certain electoral problems had not yet been resolved and an im-
mediate election might have been itself subject to a later re-run.
Were the present regularly scheduled election less than eleven
months away, the equities would lie more clearly in CSEA’s favor.
See Donovan v. Local 10902, Communications Workers of
America, 650 F.2d 799, 802 (5th Cir.1981). While the Court would
view it as impractical and unwise to require two elections within
the course of little more than one year, that appears to be the
desired remedy as expressed by counsel for all parties during oral
argument. Accordingly, the Secretary hereby is directed to con-
duct the re-run election within ninety days of the date of this
Order, the new officers to hold office until what would have been
the expiration of the 1982-1985 term. The next election will
therefore be the next regularly scheduled triennial election to be
held in June of 1985.
While the Court interferes with the normal functioning of in-
traunion affairs reluctantly, it does so in the sincere believe that
such intervention is necessary to ensure the effectiveness of the
LMRDA and the vitality of union democracy.
It is so ordered.
APPENDIX
THE COURT: I am prepared to rule with respect to both mo-
tions presently before me. First, with respect to defendant CSEA’s
motion for partial summary judgment.
Part of the instant action challenges the results of a mail ballot
election, the results of which were announced at 6:00 p.m. on
June 15, 1982. The complaint alleges that the election denied
union members the right to be candidates by imposing
unreasonable candidacy requirements and by failing to conduct
the election by secret ballot in violation of 29 U.S.C. Section 481.
In February of 1982, Helen Carter submitted her request to be
a candidate. Her request was denied on March 1, because she
A-28
was not a member in good standing since June 1 of 1981. On
March 5, Carter protested that decision by letter to CSEA. That
protest was denied. On April 30, Carter filed a second pre-election
protest. That protest was denied as untimely, although it is unclear
how it was untimely since CSEA’s bylaws have no provision
regarding pre-election protests.
On June 15, at 6:00 p.m., the results of the election were of-
ficially announced by issuance of a press release and mailing of
telegrams to candidates. By letter dated June 22, received by
CSEA on June 24, Carter filed a post-election protest concern-
ing a number of alleged violations. On June 25, Carter had a
telegram phoned to CSEA adding an additional protest regar-
ding the nominating procedure. The confirmation of the oral
telegram was received by CSEA on Monday, June 28th. CSEA,
on July 14th rejected Carter’s protest regarding nominating pro-
cedures as untimely not having been made within ten days of
the alleged violations.
CSEA now moves for summary judgment on the issue of the
nominating procedures arguing that Carter’s failure to protest
timely means u_at she had not exhausted internal union remedies
and that both she and the secretary are therefore barred from
maintaining this claim.
CSEA’s bylaws provide that protests concerning the results of
an election must be filed with the executive director of the associa-
tion by certified mail, return receipt requested, within ten days
of the official announcement of the results of the election. Because
29 U.S.C. Section 482(a) requires exhaustion of internal remedies
prior to filing a complaint with the secretary, CSEA claims that
suit on this issue is precluded.
I find CSEA’s position to be without merit. First, it is arguable
that Carter’s protest was not timely received. Second, even if it
wasn't, CSEA’s hypertechnical construction of its bylaws is at odds
with the purposes of the Labor-Management Reporting and
Disclosure Act.
A-29
While the election results were officially announced on June
15th, making June 25th the last day on which to file protests,
the announcement was not made until 6:00 p.m. and then only
through a press release. The results appeared in the June 18th
issue of “Public Sector,’ CSEA’s official newspaper, which many
members would not receive until later in the week, and indeed,
Carter herself did not receive the paper and therefore the results
until June 2st, or 22nd. By announcing at 6:00 CSEA shaved
a day off the ten-day requirement. At the very least, since 6:00
was after the close of business on the 15th, Carter should have
had until after the close of business on the 25th; since that was
a Friday, she had until Monday the 28th when CSEA received
the written confirmation of her June 25th telegram. While the
bylaws required certified mail, surely a telegram confirmation
serves the same purpose and should therefore be a satisfactory
substitute.
In Hodgson versus Local 67999 of the United Steelworkers,
403 U.S. 333, 91 S.Ct. 1841, 29 L.Ed.2d 510 (1971), the Supreme
Court stressed the importance of internal exhaustion of union
procedures. The Court emphasized, however, that the analysis
of the exhaustion problem “must reflect the needs of rank and
file union members — those people the requirement is designed
ultimately to serve.” 403 U.S. at 340, 91 S.Ct. at 1846. “Courts
should impose a heavy burden on the union” to show that it did
not have adequate notice, and “members should not be held to
procedural niceties while seeking redress within their union.” Page
431, Note 6. Here, not only did Carter notify the union with her
pre-election protest, but also with her oral protest on June 25th.
It is clear that CSEA’s policy of notifying members of the official
results was not designed to facilitate member protests but rather
to impede them. See Hodgson against Liquor Salesmen’s Union,
Local 2, 444 F.2d 1344, 1349 (2d Circuit 1971): “Such procedural
perversion of the exhaustion requirements of Section 402(a) will
not be permitted.” Under 29 U.S.C., Section 482(a), internal union
procedures, including time limitations, must be flexibly applied.
Donovan against Local 1235, International Longshoreman’s
Association, 715 F.2d 70, 74 (3d Circuit 1983).
A-30
At Page 76 of the Donovan against Local 1235, Third Circuit
Case:
“Members of a union, however well informed of its
procedure for appeal, deal not with an outside agen-
cy whose interests are hostile to theirs but with their
own union which should seek to reach a disposition
of their grievances on the merits rather than on pro-
cedural technicalities. Union officials must be
discouraged from adopting with their own members
the same adversarial role which they may more ap-
propriately play when acting on behalf of those
members in negotiations with their employer.”
Because the procedural default here was, if anything, entire-
ly insignificant, I find that there was sufficient compliance to
indicate exhaustion. Accordingly, CSEA’s motion must be denied.
A more troublesome question is presented by the secretary’s
motion for summary judgment with respect to the secret ballot
requirements, largely because a violation, if proved, precipitates
a most drastic remedy, in the form of an order that the election
be rerun under the supervision of the secretary. ©
The mail election challenged here was conducted by providing
CSEA members with perforated baliot forms. The top portion
contained voters’ names and social security numbers and they
were required to sign it for verification purposes. The bottom
portion was the actual ballot. The forms were then mailed to
the Independent Election Corporation of America. Voters were
informed that their signature was required for validation pur-
poses only and would be removed before counting, but that ballots
without signatures would not be counted. In all, 197,000 ballots
were mailed out; 51,000 were returned to IECA; 5600 were not
counted because of the absence of voter signatures. There is no
dispute that IECA maintained secrecy in its processing of ballots.
However, the secretary urges that the secrecy requirement of 29
U.S.C. Section 481(b) was violated both because ballots did not
contain names when they went to IECA and because Gregory
Szurnicki, chairman of CSEA’s election procedures committee
- — A eee
PES NS ope © ony SAS NUD YY?) Wh RDAs ON acne ee
his
A-31
reviewed approximately 30 ballots with names for purposes of
validation.
Section 481 of the LMRDA provides that every 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 402(k) provides “ ‘secret ballot’ means the expression
by ballot, voting machine, or otherwise, but in no event by pro-
xy, of a choice with respect to any election or vote taken upon
any matter, which is cast in such a manner that the person ex-
pressing such choice cannot be identified with the choice express-
ed.”
There is no question that a secret ballot is mandatory.
CSEA argues but provides no authority, that it does not mat-
ter that IECA saw voter names, since the concern of the statute
is that union members and officials, not third parties, not be able
to associate voters with their vote.
It is clear, however, the CSEA violated the secrecy provision,
since voters were capable of being identified with their ballots.
The potential chilling effect is at the heart of the Act since voters
are doubtless reluctant to have their votes attributed to them.
Certainly, this somewhat explains why 5600 voters neglected to
add their names, and perhaps why some members chose to not
vote at all.
The instructions accompanying the ballot did not fully cure
the problem since voters could not be certain who would see their
ballots. All they were told was that their votes were confidential
and that ballots would be tabulated by IECA. There could be
no assurance to the reticent member that his vote would truly
remain anonymous. Two cases in this area manifest an over-
whelming preference for absolute secrecy. Marshall against Local
12447, United Steelworkers, 591 F.2d 199, 203 (3d Circuit 1978):
“The definition is phrased in mandatory terms: The ballots
must be marked in such a matter that the voter cannot be iden-
tified with his choice. It is clear that in this election some voters
A-32
could have been identified with their choices. It is also clear that
the union did not take the steps which would have made certain
that voters could not be identified with their preferences.”
In a footnote of that opinion it indicates how strictly the secrecy
requirement is to be construed:
“The evidence showed only that, because of the way
the election was conducted, it was possible to observe
how some voters had marked their ballots. This, we
believe, was sufficient to show a violation of the Act
where reasonable steps have not been taken to require
members to vote in secrecy.”
In mail-ballot elections, the secretary's regulations, codified
at 29 C.F.R. 452.97(a), suggest a proper method for insuring
secrecy, a method not employed here:
“The ballot must not contain any markings which upon ex-
amination would enable one to identify it with the voter. Balloting
by mail presents special problems in assuring secrecy. Although
no particular method of asserting such secrecy is presented, secrecy
may be assured by the use of a double envelope system for return
of the voted ballots with the necessary voter identification ap-
pearing only on the outer envelope.”
In Bachowski versus Brennan, 413 FSupp. 147, 150
(W.D.Pa.1976), appeal dismissed, 545 F.2d 363 (3d Circuit 1976),
the Court noted:
“The requirement of secrecy wouid seem to include
not only the right to vote in secret but also the right
to secrecy after the ballots are cast. Any post-voting
device by which it can be determined how a particular
voted would be a violation of secrecy (such as signatures
or other identifying marks on the ballot, or extracting
each ballot from the ballot box and examining it im-
mediately after it has been cast).
ee
A-33
“By imposing the requirement of secrecy Congress
meant to eliminate any form of potential coercion or
intimidation which might occur if it could be learned
in any manner how an individual voter had voted.
“Any violation of the right to secrecy either at the
time of voting or by subsequent procedures of handl-
ing the ballots constitutes a substantive and material
infringement of the voter’s rights, and also of the can-
didates’ rights to a fair and honest competition for the
suffrages of the union members.
“As plaintiffs counsel points out, ‘Secrecy and
safeguards are for the benefit of the challenger and the
absence of secrecy and safeguards can only benefit the
incumbent who controls the machinery of the union
and can affect votes through fear or hope of favor’ ”
The problem here is even more acute since a member of the
union's election committee actually reviewed some ballots with
voters’ names suggesting that voter fears of anonymity may not
have been unrealistic. It is clear then that the ballots were not
secret.
The question that remains is one of remedy. Section 482(c)
directs the Court, if it finds that a violation has occurred which
may have affected the outcome of the election, to void the elec-
tion and order a new one under the secretary’s supervision. In
Wirtz against Hotel, Motel and Club Employees’ Union, 391 U.S.
492, 88 S.Ct. 1743, 20 L.Ed.2d 763 (1968), the Supreme Court
established that once a violation was established, a prima facie
case had been made out that the violation “may have affected”
the outcome. Evidence rebutting such a finding may not rest on
conjecture but only on “tangible evidence against the reasonable
probability that the violation did affect the outcome.” 391 U.S.
at 508, 88 S.Ct. at 1752.
The burden is thus substantial. In this type of case, “There
is no conceivable way in which defendant can confront and over-
come the imponderables inherent in analyzing the decisions made
A-34
by each elector . . . in choosing to vote or not to vote and in selec-
ting the particular candidate for whom to vote ....”
Usery against International Organization of Maters, Mates and
Pilots, 422 F.Supp. 1221, 1226-27 (S.D.N.Y.1976). Here, 5600 votes
were not counted and 150,000 members did not even vote. The
only effort made by CSEA to show no affect is to point to margins
of victory. For example, the president won by a vote of 25,785
to 11,675; executive vice-president 22,928 to 20,017, and treasurer,
22,173 to 13,144. Those figures, however, are meaningless since
it remains to be seen whether secret ballots would have encourag-
ed the 5600 non-signing voters to cast meaningful ballots, but
the nonvoting members as well. CSEA also argues that no one
other than Carter complained, but that too is irrelevant. It is
also irrelevant that CSEA had a good election history. In short,
CSEA has come forward with no evidence that the lack of secrecy
did not affect the election.
Accordingly, a new election is required. It is no defense that
such relief is unfair or unreasonable, since upon a violation a new
election is mandatory under the statue.
While the remedy doubtless is a severe one, that is the price
to be paid for vindicating the important congressional goal of
ensuring union democracy.
Two weeks from today, a motion is returnable by the secretary
as I understand it, relating to the nominating procedures.
Although I have announced my determination with these mo-
tions in the record, the final order shall await the determination
on that motion unless the parties advise me otherwise.
(Whereupon proceedings in the above-entitled matter were
concluded.)
A-35
CERTIFICATION
I, HIRAM F. SHEFFER, Official Court Reporter for the
United States District Court, in and for the Northern District
of New York, do certify this to be a true and accurate transcript
of the stenographic record of the foregoing taken at the time and
place noted in the heading hereof.
/s/
HIRAM F. SHEFFER
Official Court Reporter
United States District Court
Northern District of New York
A-36
APPENDIX A
Decision of United States Court of Appeals,
Second Circuit, May 1, 1985
RayMonp J. DONOVAN, Secretary of Labor,
United States Department of Labor,
Plaintiff-Appellant, Cross-Appellee,
HELEN CARTER,
Plaintiff-Intervenor,
—VY,—
CSEA LOCAL UNION 1000,
AMERICAN FEDERATION OF STATE,
COUNTY AND MUNICIPAL EMPLOYEES, AFL-CIO,
Defendant-Appellee, Cross-Appellant,
HELEN CARTER,
Intervenor.
Nos. 714, 715, Dockets 84-6292, 84-6308.
United States Court of Appeals,
Second Circuit.
Argued Feb. 8, 1985.
Decided May 1, 1985.
CARDAMONE, Circuit Judge:
This action, instituted by the Secretary of Labor under the
Landrum-Griffin Act of 1959, challenges the 1982 election of
statewide officers of the Civil Service Employees Association
(CSEA or Union) in New York based upon a complaint made
by a union member. At the heart of the Landrum-Griffin Act
is the premise that unions should conduct their internal affairs
through democratic processes. Some believe that like Don Quix-
ote, Congress was attempting the near impossible task of repealing
the “iron law of oligarchy” inherent in large-scale one-party
organizations. Thus, it falls upon courts construing the Act to
——
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effectuate its premise in the face of the strong tendency toward
obligarchic control that is an inevitable result of a single-party
structure. Contrary to the court below, we conclude that the
nominating procedure at issue violates the Act because it gives
an unfair advantage to incumbents and other members of the
union hierarchy. Accordingly, we reverse.
As a result of Helen Carter’s complaint, the instant action was
brought by the Secretary of Labor under Title IV of the Labor-
Management Reporting and Disclosure Act of 1959, 29 U.S.C.
§ §481-483 (1982) (LMRDA or Act). The Secretary sought an order
from the United States District Court for the Northern District
of New York (Miner, J.) declaring that the CSEA had viclated
§ 401(b) of the Act by failing to conduct an election for its
statewide offices by secret ballot. 29 U.S.C § 481(b). He also sought
an order declaring that the CSEA had violated § 40l(e) of the
Act by: (1) imposing unreasonable candidacy requirements; (2)
imposing candidacy requirements in a non-uniform manner; (3)
denying members in good standing a reasonable opportunity to
nominate candidates; and (4) denying members in good stan-
ding the right to be a candidate. 29 U.S.C. § 48l(e). The Secretary
sought a new election conducted under his supervision. The CSEA
denied these allegations and asserted as an affirmative defense
that the district court lacked jurisdiction because Carter had failed
to exhaust her internal union administrative remedies as required
by § 402(a). 29 U.S.C. § 482(a).
I. CSEA’s 1982 Election
A. Nominating Procedures
Representing employees of the State of New York and its various
political subdivision, the CSEA has almost 200,000 members. The
Union is divided inot 6 regions, 313 locals, and 933 units. Most
of its locals have fewer than 500 members. Nominations for elec-
tion to its statewide offices of President, Executive Vice-President,
Secretary and Treasurer are governed by article IV, section 5(b)
of its Constitution and Bylaws, which provides for a statewide
nominating committee made up of three members from each of
the six regions. Members of the committee are selected by the
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executive board of each CSEA region, and not by the rank and
file. The committee is required to select at least two candidates
for each statewide office from among those members in good stan-
ding who have timely submitted a “Request to Be a Candidate”
form. A potential candidate must receive a plurality vote of the
committee to be placed on the ballot. In 1982 the constitution
provided that incumbent officers who wanted to be candidates
were automatically placed on the ballot.
Neither the constitution nor any other document provides
guidelines for committee members to use in selecting candidates.
The record indicates that committee members have based their
decisions to vote for or against particular candidates on such at-
tributes as education, expertise, experience, and involvement in
CSEA activities. The committee members have derived this in-
formation from the submitted forms and their personal
knowledge of the candidates. A CSEA member seeking statewide
office who is rejected by the committee may still have his or her
name placed on the ballot if the member is able to obtain the
signatures of two percent of the membership on a petition within
six weeks of being turned down by the committee. The signature
requirement was 3,800 based on 1982 membership.
All four incumbents chose to be placed on the ballot for the
1982 election. Seven members applied to be candidates. The com-
mittee nominated four and rejected three, including Carter who
was seeking to be Secretary. In total, the Committee nominated
three individuals for President, two for Executive Vice-President,
two for Treasurer, and only one, the incumbent, for Secretary.
Of the four incumbents all but the Treasurer were reelected. Only
one of the three members who was rejected successfully obtain-
ed the signatures needed to win a spot on the ballot. The record
does not reveal whether either of the other two attempted to ob-
tain signatures.
B. Helen Carter’s Protests
The only provision in the CSEA Constitution and Bylaws con-
cerning election protests is in article III, section 2 and states that
a member must file a protest with the Executive Director of the
— v
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CSEA by certified mail within ten days of the official announce-
ment of the election results. Prior to the election Helen Carter
had protested to the CSEA Board of Directors and to the
statewide election procedures committee regarding the
nominating committee's selection of condidates. She was informed
that her protest was untimely — because the Union’s constitution
did not provide for pre-election protests— and that a response
by the CSEA to her protest would be inappropriate because she
had instituted a federal action. (That action has been indefinitely
stayed by the Eastern District.)
The CSEA’s mail ballot election was conducted on June 15,
1982 and the results of the election were telegrammed to the can-
didates that same day. The official results were published in the
June 18th edition of the CSEA newspaper. Carter sent a letter
making numerous protests about the election te the Executive
Director. On June 25, the last day of the ten-day period, she sent
a telegram — orally communicated to the Union that same day —
in which she amended her protest to allege that the nominating
procedure was “arbitrary and discriminatory” in violation of the
LMRDA. The Union received a written confirmation of the
amended election protest on June 28, the next business day. The
statewide election procedures committee informed Carter that
her protests were untimely because they had not been made
within ten days of the date the events she complained about oc-
curred. As a result, Carter complained to the Secretary, who in-
stituted the present action in the district court.
II. District Court Ruling and
Rerun Election
The district court 594 FSupp.188, held that the CSEA had
violated § 401(b) of the Act by failing to conduct its election by
secret ballot, and ordered the CSEA to hold a new election within
90 days. 29 U.S.C § 481(b). It further held that the nominating
procedures did not violate § 401(e) of the LMRDA. 29 U.S.C §
481(e). Noting that the CSEA apparently did not know until just
prior to the 1982 election that its elections were subject to the
Act, the district court then held that the use of the nominating
committee, standing alone, violated the Act. But the district judge
|
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went on to hold that the alternative procedure, which allowed
members rejected by the committee to obtain a place on the ballot
by submitting a petition signed by 3,800 members, provided a
reasonable alternative to the concededly unreasonalbe commit-
tee method of nominating. The Secretary’s motion for summary
judgement regarding the nominating procedures was therefore
denied. The CSEA’s motion for partial summary judgment was
also denied upon the court’s finding that Carter had exhausted
her internal union remedies before submitting her complaint to
the Secretary.
Pursuant to the district court’s order, the CSEA held a rerun
election. The election was supervised by the Secretary, and
members voted by secret ballot. Prior to the district court’s dec-
sion, the CSEA had agreed to discontinue its practice of
automatically placing incumbents’ names on the ballot. Moreover,
in the rerun election, the Union on its own initiative required
a member rejected by the committee to obtain only 1,000 peti-
tion signatures in order to have his or her name placed on the
ballot.
[1] The election held pursuant to the court order does not moot
this appeal. See Donovan v. Local 120, Laborers’ International
Union, 683 F.2d 1095, 1098-99 (7th Cir.1982). Instead, determina-
tion of the issues raised will provide the Union with guidance
in holding future elections, including its regularly scheduled trien-
nial election to be held in June 1985. This appeal presents two
question: first, whether the district court correctly held that Helen
Carter had exhausted the remedies available to her under the
CSEA Constitution and Bylaws; and if so, whether the district
court erred as a matter of law in holding that the CSEA
nominating procedures, when considered as a whole, were
reasonable.
Ill. The Exhaustion Requirement
[2] Section 402(a) of the LMRDA provides that before the
Secretary may interfere with union election procedures, a union
member must have either exhausted his or her union remedies,
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or invoked them without receiving a final decision for three
months. 29 U.S.C § 482(a)! The purpose of the exhaustion re-
quirement is to give a union an opportunity to remedy Title IV
violations and thus avoid unnecessary governmental intrusion.
Hodgson v. Local 6799, United Steelworkers, 403 U.S. 333,
338-39, 91 S.Ct. 1841, 1845-46, 29 L.Ed.2d 510 (1971). But “any
interpretation of the exhaustion requirement must reflect the
needs of rank and file union members — those people the require-
ment is designed ultimately to serve.” Id. at 340, 91 S.Ct. at 1846.
As a consequence, a heavy burden is imposed on the union to
demonstrate that it did not have adequate notice of the protest,
keeping in mind that “members should not be held to procedural
niceties while seeking redress within their union.” Id. at 341 n.6,
91 S.Ct. at 1846 n.6.
In light of these well-established principles, the district court
correctly found that Carter had exhausted her internal union
remedies. The trial court observed that Carter had notified the
Union of her protest to the nominating procedures prior to the
election. Further, it found that Carter’s June 25 telegram pro-
test, which is the only one at issue on this appeal, was sent within
the ten-day period following the official announcement of the
election results, as required by the Union’s Constitution and
Bylaws. The district court correctly found no merit to the CSEA’s
contention that it had not received adequate notice because there
was no provision for an amended election protest in the constitu-
tion. Moreover, the fact that Carter’s protest was not sent by cer-
tified mail and not received in writing until three days after the
' Section 402(a) of the Act, 29 U.S.C. § 482(a), provides:
A member of a labor organization —
(1) who has exhausted the remedies available under the constitu-
tion and bylaws of such organization and of any parent body, or
(2) who has invoked such available remedies without obtaining
a final decision within three calendar months after their invoca-
tion, may file a complain with the Secretary within one calendar
month thereafter alleging the violation of any provision of section
481 of this titie....
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expiration of the ten-day period does not defeat her claim. Union
members, no matter how well-informed of union appeal pro-
cedures, are not dealing with a hostile third party but with their
own union which is obligated to consider and decide a member’s
protest on the merits — not on a legal nicety. See Donovan v. Local
3122, Communications Workers, 740 F.2d 860, 862 (lth Cir. 1981)
(missed deadline by two or three days was “exceedingly technical
violation” not warranting dismissal); Donovan v. Local 1235, In-
ternational Longshoremen’s Association, 715 F.2d 70, 75-76 (3d
Cir. 1983) (protestors’ efforts to examine constitution and bylaws
that union said was unavailable excused ten-day compliance);
Hodgson v. Liquor Salesmen’s Union Local 2, 444 F.2d 1344,
1349-50 (2d. Cir.1981) (fact that protest not received in time
because of postal strike excused compliance).
IV. Nominating Procedures
A. Purpose of Title IV of the Act
[3] Section 401(e) of the Act mandates that in union elections
subject to the LMRDA:
a reasonable opportunity shall be given for the nomina-
tion of candidates and every member in good standing
shall be eligible to be a candidate and to hold office
(subject...to reasonable qualifications uniformly impos-
ed) and shall have the right to vote for or otherwise
support the candidate or candidates of his choice...
29 U.S.C. § 48l(e) (emphasis added). The determination of
whether a particular qualification is reasonable and capabie of
uniform application under Section 401(e) must be made in light
of the purpose of Title IV of the Act. Local 3489, United
Steelworkers v. Usery, 429 U.S. 305, 309, 97 S.Ct. 611, 614, 50
L.Ed.2d 502 (1977). The Act’s principal aim is to promote
democracy in union governance, and the thrust of Title IV is that
members be allowed to exercise their own judgement in selec-
ting candidates for office. Wirtz v. Hotel, Motel & Club
Employees Union, Local 6, 391 U.S. 492, 504, 88 S.Ct. 1743, 1750,
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20 L.Ed.2d 763 (1968). Thus, any method of selecting candidates
which unduly interferes with members’ free choice is
unreasonable.
Inherent in any organization are factors that impede the ex-
ercise of free choice and contribute to the ability of those in power
to maintain control. See Summers, Democracy in a One-Party
State: Perspectives from Landrum-Griffin, 43 Md.L.Rev. 93,
96-99 (1984). Unlike candidates in a two-party system, those
challenging incumbent union leaders are often viewed as disloyal
to the union. In addition, control over the union’s bureaucracy
enjoyed by union leaders gives them an opportunity to perpetuate
themselves through the dispensation of patronage. Moreover,
power over the channels of communication, while subject to
restriction, is another means of maintaining power. The tight
grasp of incumbent leaders should be recognized when a court
interprets LMRDA union election requirements so that opposi-
tion voices can be heard and their weight felt. Summers, supra,
at 99.
B. CSEA Nominating Procedures
Violate the Act
[4] The Union concedes that certain aspects of its nominating
procedure are violative of the Act. It has discontinued the
automatic placement of incumbents on the ballot. It also agrees
that the selection of candidates by the nominating committee,
standing alone, violates the Act, but argues that we should adopt
the district court finding that the petition alternative makes the
nominating procedure reasonable when considered as a whole.
We cannot agree. In determining whether the nomination pro-
cedure as a whole violated the Act, we first address why use of
the nominating committee and its use of subjective criteria, stan-
ding alone, violates the Act.
The vague and subjective criteria used by the nominating com-
mittee members, who are selected solely by the regional executie
committees, is a deterrent to potential candidates and inhibits
members from exercising their own judgment. The Department
of Labor’s Regulations expressly distinguish between reasonable
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qualifications capable of uniform application and qualifications
which permit subjective determinations of eligibilty:
An essential element of reasonableness is adequate ad-
vance notice to the membership of the precise terms
of the requirement.... Qualifications must be specific
and objective. They must contain specific standards of
eligibility by which any member can determine in ad-
vance whether or not he is qualified to be a can-
didate.... Further, [a subjective] requirement is by its
nature not capable of being uniformly imposed as re-
quired by section 401(e).
29 C.F.R § 452.53 (1984). In Local 120, Laborers’ International
Union, the Seventh Circuit struck down a requirement that an
election panel screen candidates for “competency,” finding that
the requirement “permit(ted] arbitrary and subjective barring
of candidates...[and b]y its nature [could] not be uniformly im-
posed.” 683 F.2d at 1105. The court found that it “discourages
potential candidates by its vagueness.” Jd. at 1104.
Moreover, the process results in the substitution of the judg-
ment of committee members for the advised view of the rank-
and-file members and thereby leads to the indirect use of pro-
hibited criteria. See Wirtz v. National Maritime Union, 399 F.2d
544, 549-50 (2d Cir. 1968). In National Maritime Union, in which
the union required candidates to have prior office-holding ex-
verience, we said:
While we would hesitate to say that experience gain-
ed in one of the lower offices bears no relation to a
candidate’s ability to perform as a national officer, the
Supreme Court quite clearly has pointed out that it
is for the rank-and-file union members to distinguish
qualified from unqualified candidates. It must be left
to the judgment of each member to determine in par-
ticular instances how much weight to give to prior
experience.
399 F.2d at 550 (citation omitted).
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[5] After thoroughly discussing these aspects of the CSEA com-
mittee nominating process, the district court held that although
the committee process, standing alone, was violative of the Act,
the nominating procedure taken as a whole was not. In its view
a member’s opportunity to gain a place on the ballot by obtain-
ing the required number of signatures provided a reasonable op-
portunity to nominate candidates and therefore made the
nomination procedure reasonable as a whole. In our view the
petition requirement does save the nominating procedure. When
the petition requirement is used in conjunction with the com-
mittee nominating process the nominating procedure as a whole
violates the Act because it fails to comply with the requirement
that qualifications be uniformly imposed.
In light of the rule that “qualification” requirements must be
uniformly imposed under § 401(e) of the Act, 29 U.S.C § 481(e),
the petition requirement violates the LMRDA because it imposes
a significant burden not imposed on those selected by the com-
mittee. See National Maritime Union, 399 F.2d at 548 (the peti-
tion requirement violated the Act because it “was not uniformly
inposed since only anti-administration candidates were obliged
personally to secure the forms and endorsements”). Scrutiny of
such burdens is especially critical on account of the advantage
that incumbents or committee-selectees naturally enjoy relative
to rank-and-file members. Union officers are rarely unseated, and
when such an upset does occur, it is generally one of the union
hierarchy and not a rank-and-file member who takes the prize.
[6] In addition to finding the procedure as a whole violative
of the Act because the petition alternative is not capable of be-
ing uniformly imposed, we find the 3800-signature petition re-
quirement itself unreasonable under the facts of this case. We
recognize that the use of petitions is expressly recognized under
the Department of Labor’s Regulations as a permissible means
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of nomination. See 29 C.F.R § 452.57.’ But any petition require-
ment must still be tested for reasonableness. 29 U.S.C § 48l(e).
In making such a case-by-case assessment, requirements under
other union constitutions and the geographical distribution of
the subject union’s membership are relevant criteria.
Upon examining the petition requirement of other unions, we
find that only a few pre- and post-LMRDA union constitutions
have such a requirement. U.S Department of Labor, Union Con-
stitution Provision: Election and Tenure of National and Inter-
national Union Officers 7 (1958); U.S. Department of Labor,
Union Constitutions and the Election of Local Union Officers
52 (1965). This small number includes those constitutions requir-
ing endorsement by a specified number of members at a
nominating meeting or by a specified number of locals. A scan
of the distribution of CSEA membership, as noted earlier, reveals
that most CSEA locals have fewer than 500 members and the
average local has far fewer. In order to obtain 3,800 signatures
from members in good standing, a potential candidate would
have to obtain the signature of every member in at least seven
locals. As a matter of law, this requires more than a showing of
minimal support. See National Maritime Union, 399 F.2d at 548
(petition requirement held unreasonable where many members
* Section 452.57 Procedures for Nomination.
(a) Since the Act does not prescribe particular procedures for the
nomination of candidates, the labor organization is free to employ
any method that will provide a reasonable opportunity for mak-
ing nominations. There are various methods which, if properly and
fairly employed, would be considered reasonable under the Act.
For example, ee ee ee Geen ee en er
at a nomination meeting,
(b) Whether a particular procedure is sufficient to satisfy the
of the Act is a question which will depend upon the
particular facts in each case. While a particular procedure may
not on its face violate the requirements of the Act, its application
in a given instance may make nomination so difficult as to deny
the members a reasonabie opportunity to nominate.
29 C.F.R. § 452.57 (1984).
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served in ships at sea even though fewer that 100 needed to en-
dorse candidate for national office). At the same time, the 1,000
petition signatures required by the Union in its rerun election
is not unreasonable as a matter of law.
In arguing that requiring 3,800 signatures is reasonable, the
CSEA points to the affidavit of a member who had been rejected
by the committee but who nonetheless succeeded in obtaining
3,800 signatures, and in fact, unseated the incumbent. That
member was able to collect over 5,000 signatures by sending peti-
tions to local presidents and treasurers, and to members of the
CSEA Board of Directors. While it is to the credit of that par-
ticular member to have mounted a successful campaign, we note
that she was a union member of longstanding, who had served
in numerous leadership positions in her local and region, and
had been a state convention delegate and served on various CSEA
committees. This activity provided her with extensive contacts
among union leadership throughout the state. Her success simp-
ly illustrates that on those rare occasions when there is a turnover
in a leadership position, the successful challenger is usually from
the union hierarchy and not from the membership of the rank-
and-file. Although experience and demonstrated leadership at
a local or regional level is an important factor for a voting union
member to consider, it may not — consistent with the purpose of
Title IV— give an individual a significant advantage in seeking
the nomination.
V. Remedy
[7] We come to the remaining question. What is the remedy?
The Secretary urges that the case be remanded to the district
court with directions that it order the CSEA to conduct another
rerun election under his supervision. The Secretary seeks to have
a second supervised election despite the fact that the first rerun
of the 1982 election was held under his supervision where he
found no violations that may have affected the outcome of that
election. We see no point in repetition. In the interest of finality
of election results, one rerun is enough. Further, supervised rerun
elections are costly and disruptive to a union. Although the parties
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agree that the propriety of the CSEA’s 1982 nominating pro-
cedures was not mooted by the supervised rerun election, that
election limits the relief we may order. See Local 120, Laborers’
International Union, 683 F.2d at 1098-99. Thus, while the disposi-
tion of this appeal does not affect the results of the supervised
election, our determination will be applicable to the regularly
scheduled June 1985 election and to future elections.
Accordingly, the district court order is affirmed insofar as it
concluded that Helen Carter had exhausted her internal union
administrative remedies. Insofar as the district court found the
CSEA nominating procedures reasonable and not in violation
of the 1959 Act, the order appealed from is reversed and the case
is remanded to the district court with directions to enter an order
consistent with this opinion including in particular a provision
that 1,000 signatures on a candidate's petition for CSEA statewide
office are sufficient.
o a
B-1
APPENDIX B
29 U.S.C. §481
TITLE ITV — ELECTIONS
Terms of Office; Election Procedures
(29 U.S.C. 481)
SEC. 401. (a) Every national or international labor organiza-
tion, except a federation of national or international labor
organizations, shall elect its officers not less often than once every
five years either by secret ballot among the members in good stan-
ding or at a convention of delegates chosen by secret ballot.
(b) Every local labor organization shall elect its officers not
less often than once every three years by secret ballot among the
members in good standing.
(c) Every national or international labor organization, except
a federation of national or international labor organizations, and
every local labor organization, and its officers, shall be under
a duty, enforceable at the suit of any bona fide candidate for
office in such labor organization in the district court of the United
States in which such labor organization maintains its principal
office, to comply with all reasonable requests of any candidate
to distribute by mail or otherwise at the candidate's expense cam-
paign literature in aid of such person’s candidacy to all members
in good standing of such labor organization and to refrain from
discrimination in favor of or against any candidate with respect
to the use of lists of members, and whenever such labor organiza-
tions or its officers authorize the distribution by mail or other-
wise to members of campaign literature on behalf of any can-
didate or of the labor organization itself with reference to such
election, similar distribution at the request of any other bona
fide candidate shall be made by such labor organization and its
officers, with equal treatment as to the expense of such distribu-
tion. Every bona fide candidate shall have the right, once within
30 days prior to an election of a labor organization in which he
is a candidate, to inspect a list containing the names and last
known addresses of all members of the labor organization who
are subject to a collective bargaining agreement requiring
B-2
membership therein as a condition of employment, which list
shall be maintained and kept at the principal office of such labor
organization by a designated official thereof. Adequate safeguards
to insure a fair election shall be provided, including the right
of any candidate to have an observer at the polls and at the coun-
ting of the ballots.
(d) Officers of intermediate bodies, such as general commit-
tees, systern boards, joint boards, or joint councils, shall be elected
not less often than once every four years by secret ballot among
the members in good standing or by labor organization officers
representative of such members who have been elected by secret
ballot.
(e) In any election required by this section which is to be held
by secret ballot a reasonable opportunity 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 impos-
ed) and shall have the right to vote for or otherwise support the
candidate or candidates of his choice, without being subject 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 pursuant to his voluntary authorization provided
for in a collective bargaining agreement shall be declared ineligi-
ble 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 of-
ficials designated 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 elec-
tion 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.
B-3
APPENDIX B
29 U.S.C. §482
(f) When officers are chosen by a convention of delegates
elected by secret ballot, the convention shall be conducted in ac-
cordance with the constitution and bylaws of the labor organiza-
tion insofar as they are not inconsistent with the provisions of
this title. The officials designated in the constitution and bylaws
or the secretary, if no other is designated, shall preserve for one
year the credentials of the delegates and all minutes and other
records of the convention pertaining to the election of officers.
(g) No moneys received by any labor organization by way of
dues, assessment, or similar levy, and no moneys of an employer
shall be contributed or applied to promote the candidacy of any
person in an election subject to the provisions of this title. Such
moneys of a labor organization may be utilized for notices, fac-
tual statements of issues not involving candidates, and other ex-
penses necessary for the holding of an election.
(h) If the Secretary, upon application of any member of a local
labor organization, finds after hearing in accordance with the
Administrative Procedure Act that the constitution and bylaws
of such labor organization do not provide an adequate procedure
for the removal of an elected officer guilty of serious misconduct,
such officer may be removed, for cause shown and after notice
and hearing, by the members in good standing voting in a secret
ballot conducted by the officers of such labor organization in
accordance with its constitution and bylaws insofar as they are
not inconsistent with the provisions of this title.
(i) The secretary shall promulgate rules and regulations
prescribing minimum standards and procedures for determin-
ing the adequacy of the removal procedures to which reference
is made in subsection (h).
Enforcement
(29 U.S.C. 482)
SEC. 402. (a) 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
B-4
(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 sec-
tion 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 pen-
ding 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.
(b) The Secretary shall investigate 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 maintains its prin-
cipal 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 Secrétary and in accor-
dance with the provisions of this title and such rules and regula-
tions 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.
(c) If, upon a preponderance of the evidence after a trial upon
the merits, the court finds -
(1) that an election has not been held within the
time prescribed by section 401, o1
(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 conformity with the
B-5
APPENDIX B
29 U.S.C. §483
constitution and bylaws of the labor organization. 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 section 401, the Secretary shall certify the results of the
vote and the court shali enter a decree declaring whether such
persons have been removed as officers of the labor organization.
(d) An order directing an election, dismissing a complaint, or
designating elected officers of a labor organization shall be ap-
pealable in the same manner as the final judgment in a civil ac-
tion, but an order directing an election shall not be stayed pen-
ding appeal.
Application of Other Laws
(29 U.S.C. 483)
SEC. 403. No labor organization shall be required by law
to conduct elections of officers with greater frequency or in a
different form or manner than is required by its own constitu-
tion or bylaws, except as otherwise provided by this title. Existing
rights and remedies to enforce the constitution and bylaws of a
labor organization with respect to elections prior to the conduct
thereof shall not be affected by the provisions of this title. The
remedy provided by this title for challenging an election already
conducted shall be exclusive.
Effective Date
(29 U.S.C. 484)
SEC. 404. The provisions of this title shall become applicable -
(1) ninety days after the date of enactment of this
Act in the case of a labor organization whose constitution and
bylaws can lawfully be modified or amended by action of its
constitutional officers or governing body, or
(2) where such modification can only be made
by a constitutional convention of the labor organization, not
later than the next constitutional convention of such labor
B-6
APPENDIX B
29 U.S.C. §484
organization after the date of enactment of this Act, or one
year after such date, whichever is sooner. If no such conven-
tion is held within such one-year period, the executive board
or similar governing body empowered to act for such labor
organization between conventions is empowered to make such
interim constitutional changes as are necessary to carry out
the provisions of this title.
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.