# Petition for Writ of Certiorari — Local 1291, International Longshoremen's Ass'n v. Hodgson

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1973
- **Citation:** 410 U.S. 909

## Text

INDEX TO PETITION.

Page
OPINIONS AND ORDERS OF THE Courts BELOW .......-...- 2
JURISDICTION «2.2.2.2. 0 2s eee eee enter eee e teen ete 2
QUESTIONS PRESENTED ...........-- 200-00 eee reer eee 3
STATUTE INVOLVED ............0 00 e cece eee cent ee eeeee 3
STATEMENT OF THE CASE ............ 000 e eee eee eee eeees o
REASONS FoR GRANTING THE WRIT ........-----22-+00055 7

I. The Union By-Law Provides a Formula for the Elec-
tion of Officers Which Is Reasonable and in Con-
formity With the Act. The Decisions Below Are in
Direct Conflict With Those of This Court in Davis
v. Board of School Commissioners, 402 U. S. 33;
Swann v. Charlotte-Mecklenburg Board of Educa-
tion, 402 U. S. 1; McDaniel v. Barresi, 402 U. S. 39;
State Board of Education v. Swann, 402 U. S. 43;
and Conflict With the Decision of the Court of Ap-
peals for the Fifth Circuit in Local 53, Heat and
Frost Insulators v. Vogler, 407 F. 2d 1047 ........ 7
II. Since There Was No Effort to Make Any Nomination
Which Was Refused, the By-Law Could Not Pos-
sibly Have Affected the Outcome of the Election.
Therefore, the Action by the Secretary of Labor
Was an Unwarranted Interference in Internal Union
Affairs, Contrary to the Decisions of This Court in
Hodgson v. Local Union 6799, United Steelworkers,
403 U. S. 333, and Wirtz v. Hotel, Motel & Club
Employees Union, Local 6, 391 U. S. Oe wxeeare% 16

NN 8 ices nee wsnesdsesneeeesasesceeeeneceaRkes 19

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FIOM ET LAE IP OI 1 FONE LD MEME smepeccananedl

TABLE OF CASES CITED.
Page
Brown v. Board of Education of Topeka, 347 U. S. 483, 98
he MER CRINGE. cccesurectncsesarsesnesesse sesso? 12, 16
Colpo v. Local 107, Teamsters, 305 F. 2d 362 (3rd Cir., 1962) 18
Davis v. Board of School Commrs., 402 U. S. 33, 28 L. Ed.

OBIE TUNE) 5 inka woes ves ccnncxnntensoeess seers. 7,8, 20
Fuller v. Volk, 230 F. Supp. 25 (D. N. J. 1964) .....------ 9
Gong Lum v. Rice, 275 U. S. 78, 72 L. Ed. 173 (1927) ..- 4
Hodgson v. Local Union 6799, United Steelworkers, 403 U. S.

333, 29 L. Ed. 2d 510 (1971) ...---e sees reer tert 16, 18
Kharaiti Ram Samros v. United States, 125 F. 2d 879 (9th Cir.,

PO wake kenansweecte cen hanstnewasenennronnes ss 4
Local 53, Heat and Frost Insulators v. Vogler, 401 F. 2d 1047

IIE vasa ch cnnak concen nketteassnsneneseee ress? 7,10
Matter of Balaban v. Rubin, 14 N. Y. 2d 193 (1964) .....--- 15
McDaniel v. Barresi, 402 U. S. 39, 28 L. Ed. 2d 582 (1971) 7,9
Moreau v. Bd. of Education, 42 N. J. 237, 200 A. 2d 97 ..... 9
Musicians’ Local No. 10 v. American Federation of Musicians,

57 LRRM 2227 (N. D. Ill. 1964) ....-----se seer res 9,14
North Carolina State Board of Education v. Swann, 402 U. S.

43, 28 L. Ed. 2d 586 (1971) ..------seeee teeter 7.9
Rarick v. United Steelworkers, 190 F. Supp. 158 (W. D. Pa.,

cu cepa aa age tan ar en enen nese eon see ee se? 17
Schultz v. Local 1291, ILA, 429 F. 2d 592 (1970) .......--: 6
Shannon, et al. v. U. S. Dept. of Housing & Urban Develop-

ment, 436 F. 2d 809 (3d Cir. SII nova neve sianescens 19
Sheridan v. United Brotherhood of Carpenters, 306 F. 2d 152

(3d Cir. 1962) .....22.seccsecceesecscreecccssseee® 19
Swann v. Charlotte-Mecklenburg Board of Education, 402 U. S.

1, 28 L. Ed. 2d 554 (1971) ..--- ees ee eee e rere 7,8, 13, 20

U. S. Intl. Longshoremen’s Union, et al., 460 F. 2d 497 (4th
is PE akc sc canad ss cccnscccaaned ess so nessosnss

™N

8 ALLTEL NEP ELE OLA EEL MOLTEN AE SE

_ —— EEL LIL ABERDEEN EH

TABLE OF CASES CITED (Continued).

Page
U. S. v. Montgomery County Board of Education, 395 U. S.
225, 23 L. Ed. 263 (1969) ....-.-.-e eee reece cerns 8
Wadia v. United States, 101 F. 2d 7 (2nd Cir., 1939) ...... 4
Wirtz v. Hotel, Motel & Club Employees Union, Local 6. 391
U. S. 492, 20 L. Ed. 2d 763 (1968) ...-.----- esse sees 16
Wirtz v. Local 153, Glass Bottle Blowers Association, 372 F.
2d 86 (3d Cir. 1966) ....... eee eee eee eee eee eees 5
Wirtz v. Local 153, 389 U. S. 463, 19 L. Ed. 2d 705 (1968) 5
Wirtz v. Local Union 410, IUOE, 366 F. 2d 438 .......----- 16
MISCELLANEOUS.
Page
Civil Rights Acts of 1964 and 1972 ......---+--+++05s000> 20° :
Labor-Management Reporting and Disclosure Act of September
14, 1959, Pub. L. 86-257, Title IV. §§401, 402, 29
Te «© © | Qeeperperere. 2, 3, 4, 6, 15, 16, 20 .
United States Census of Population, 1960, page Xx ...-------: 4 4
Webster’s International Dictionary ....--...----+s++++r50> 5
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IN THE

Supreme Court of the United States

Octoser TERM, 1972.

No.

LOCAL 1291, INTERNATIONAL LONGSHOREMEN’S
ASSOCIATION,
Petitioner,

v.

JAMES HODGSON, SECRETARY OF LABOR,
UNITED STATES DEPARTMENT OF LABOR.

PETITION FOR WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT.

To the Honorable, the Chief Justice and the Associate
Justices of the Supreme Court of the United States:

Petitioner, Local 1291, International Longshoremen’s
Association, respectfully prays that a Writ of Certiorari
issue for review of the final judgment of the United States
Court of Appeals for the Third Circuit, entered in the
above-entitled matter on July 20, 1972. Said judgment
affirms an Order of the District Court for the Eastern
District of Pennsylvania invalidating a by-law of petitioner
union which provided for a racially equal board of officers,
and ordering a new election.

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2 Petition for Writ of Certiorart

OPINIONS AND ORDERS OF THE COURTS BELOW.

The Opinion and Order of the District Court for the
Eastern District of Pennsylvania, reported at 338 F. Supp.
1204 (1972), is printed as Appendix B hereto (A. 8).
The Opinion of the Court of Appeals for the Third Circuit,
reported at — F. 2d — (1972) is printed as Appendix C
hereto (A. 16). The Judgment of the said Court of
Appeals is printed as Appendix D hereto (A. 18). The
Order of the Court of Appeals denying rehearing is printed
as Appendix E hereto (A. 20).

JURISDICTION.

The judgment of the Court of Appeals was entered
on July 20, 1972 (A. 18). The order denying rehearing
was entered on August 28, 1972 (A. 20). The jurisdiction
of this Court is invoked under 28 U. S. C. § 1254(1) and
29 U.S. C. § 482(d).

Petition for Writ of Certiorart 3

QUESTIONS PRESENTED.

1. Where a labor union adopts a by-law providing for
equal apportionment of union offices between white and
colored members, with the result over the years that the
membership has uniquely maintained an equal balance
between white and colored members, is not such a by-law
reasonable as a matter of law?

2. Where no nominations were refused because of said
by-law; and where the complaining party, a Caucasian,
ran for union office as a black man, so that election for
that office was, in fact, between a black man and a white
man, may he thereafter attack the by-law as having
affected the outcome of the election?

STATUTE INVOLVED.

The statutory provisions involved are: Labor-Manage-
ment Reporting and Disclosure Act of September 14, 1959,
Pub. L. 86-257, Title IV, §§ 401, 402, 29 U. S. C. A. 481, 482.

PETERS AEE HT EPR DEN BIS

oR

4 Petition for Writ of Certiorart

STATEMENT OF THE CASE.

The Secretary of Labor brought action against Local
1291, International Longshoremen’s Association (ILA)
under Title IV of the Labor-Management Reporting and
Disclosure Act of 1959 (LMRDA), 29 U. S. C. A. 481, et
seq., seeking to void the election of local officers held on
December 10, 1963. The District Judge held that Clause
3(c)(3) of the local union by-law under which said election
was held was unreasonable, under said Act, declared the
said election void, and ordered a new election. 338 F. Supp.
1204 (1972). The Court of Appeals for the Third Circuit
affirmed per curiam, stating only that it agreed with the
District Court. Petition for Rehearing was denied. Peti-
tioner seeks review of this decision.

Clause 3(c)(3) of the by-laws of appellant local pro-
vides:

“In accordance with tradition heretofore observed,
the President shall be of the colored race. Vice Presi-
dent, white, Recording Secretary, white, Financial
Secretary, colored, Assistant Financial Secretary,
white, 4 business agents, equally proportioned, 3
Trustees (Auditors), 1 white and 2 colored, 2 Sergeants
at Arms, 1 colored and 1 white.”

At the time of its original charter in 1932, Local 1291
was substantially equally divided between white and
colored members (76a). The rank-and-file adopted the

1. “Colored” includes all who are “other than Caucasian,
non-white.” Gong Lum v. Rice, 275 U. S. 78, 85, 72 L. oo

or

a
176 (1927) ; Kharaiti Ram Samros v. United States, 125 F 879
(9h Cir., 1955) ; Wadia v. United States, 101 F. 2d 7 ( Cir.

2nd
1939). The United States Census of Population, 1960, page xx,
under “Color,” defines “non-white” as including Negro, American
Indian, Japanese, Chinese, Filipino, Korean, Asian Indian, and
Thus, the Polynesian member referred to by the
udge would be fully eligible for office.

Cn fen

Petition for Writ of Certiorari 5

racial equality by-law at that time, and throughout the
years, the officers consistently have been elected with re-
spect to race, in accordance with this tradition and by-law
(75a-76a, 77a, 78a, 81a), and the Local has had a sub-
stantially equal division between blacks and whites since
that time to the present (8la, 132a).

Prior to the election of December 10, 1963, here at is-
sue, the complaining party, Abdullah Ahmad Bey, was
nominated for President, as was Richard L. Askew (30a,
107a). Although Mr. Bey is an Arab (107a), and, thus,
of the white race,? his nomination was not challenged. Mr.
Bey was overwhelmingly defeated.

Despite the fact that Mr. Bey was fully aware of the
by-law provision when he became a member of the Local
in 1953 (35a, 36a), he never complained about the eligibility-
for-office provision until after he ran for President and
was defeated. Then, after the election, on December 16,
1963, he complained for the first time about this provision,
and filed his complaint with the Department of Labor,
whence the instant action originated.

After two intervening appeals subsequent to trial,’

2. Webster’s International Dictionary defines an “Arab” as a
7 mite”, which, in turn, it defines as “a member of a Caucasian

rere

6 Petition for Writ of Certiorart

the District Judge decided that the by-law provision was
unlawful, voided the 1963 election, and ordered a new elee-
tion. 338 F. Supp. 1204 (1972) (131a-137a). The Court of
Appeals affirmed per curiam. — F. 2d — (1972) (A. 16).
Review is sought of that decision.

Petition for Writ of Certiorart 7

REASONS FOR GRANTING THE WRIT.

The essential issue in this case is whether a long-stand-
ing union by-law, adopted by the rank-and-file, which re-
quires that union offices be divided equally between white
and colored members, is unreasonable and, thus, illegal,
because the election is based upon a racial formula, al-
though, under said by-law, the union has consistently main-
tained a racially integrated membership for 40 years, and
the members have refused to change it, while other ILA
locals throughout the United States, having no such by-
law, have gone all white or all black.

The District Court, with accord of the Court below,
held that Clause 3(c)(3) is not a reasonable qualification
because : it ‘‘deprives fifty percent of the members of Local
1291 from holding each office’’, and there is no ‘‘very com-
pelling reason’’ to sustain it (134a); and, ‘‘there is no
objective relationship between the eligibility qualifications
and the duties of the office involved’’ (134a). We respect-

4. The Government has been very busy, these past years, institut-

ing suits against these segregated ILA locals trying to force them to

aE areny locals, their hiring halls and their work lists: eg..
. S. v.

1972).

ntl. Longshoremen's Umion, et al., 460 F. 2d 497 (4th Cir.

& Petition for Writ of Certiorari

fully submit: 1. there is a most compelling reason to sus-
tain the by-law, and that is the promotion and maintenance
of racial integration and equality that has graced this
Local for 40 years; 2. while there is no relationship between
ability to perform duties and one’s race, there is a com-
pelling necessity to consider and apply a racial formula
that has achieved racial integration. Indeed, in view of
the effectiveness of this provision, there would have to be
a ‘‘very compelling reason’’ to justify not upholding it.
For, this Court has made it clear that the mechanism or
procedure being tested must be judged by its effectiveness
in achieving the goals sought by the law. Davis v. Board
of School Commrs., 402 U. S. 33, 37, 28 L. Ed. 2d 577, 581
(1971).

This Court has confirmed the reasonableness and, in-
deed, the compelling necessity of taking racial factors into
consideration to achieve racial integration. It has held
that racial quotas must be used, and, in fact, a double
standard may be applied, which was racially motivated,
where the object was genuine equality. In Swann v.
Charlotte-Mecklenburg Board of Education, 402 U. S. 1,
28 L. Ed. 2d 554 (1971), a school desegregation plan requir-
ing a specific ratio of negro and white teachers and students
in each school was approved. This Court reiterated the
policy previously expressed that ‘‘our effort to formulate
guidelines must take into account their experience’’ (U. S.
at 6, L. Ed. at 561). Thus, any such formula or plan must
be judged by its effectiveness—a test which, applied to the
facts in the instant case, demonstrates the wisdom of and
need for the by-law here at issue.*

5. In U. S. v. Montgomery County Board of Education, 395
U. S. 225, 232-33, 235, 23 L. Ed. 2d 263, 271, 272 (1969), this
Court applied “fixed mathematical” ratios, stating that such plan
“promises realistically to work”.

6. Similarly: In Davis v. Board of School Commissioners of
Mobile County, 402 U. S. 33, 37, 28 L. Ed. 2d 577, 581, this Court
held that “the measure of any desegration plan is its effectiveness”.

Petition for Writ of Certiorari 9

In McDaniel v. Barresi, 402 U. S. 39, 28 L. Ed. 2d 582
(1971), this Court approved a desegration plan which drew
geographic attendance zones to achieve the desired racial
proportion. The Supreme Court of Georgia had struck
down the plan as violating the Equal Protection Clause ‘‘ by
treating students differently because of their race’’. Re-
jecting this, Mr. Chief Justice Burger said that the plan
‘properly took into account the race of its elementary
school children in drawing attendance lines’’; stating that
remedial steps will almost always require ‘that students
be assigned ‘differently because of their race’ » (@.&
at 41, L. Ed. at 585). To the same effect is North Carolina
State Board of Education v. Swann, 402 U. S. 43, 28 L. Ed.
9d 586 (1971), where a state statute which prohibited use
of a racial ratio for assignment of students to schools, was
struck down. Mr. Chief Justice Burger said ‘‘just as the
race of students must be considered in determining whether
a constitutional violation has occurred, so also must race
be considered in formulating a remedy’’, and emphasized
the necessity for the use of a formula or ratio in order to
achieve what is required by Federal policy and statute

(U. S. at 46, L. Ed. at 589).”

In sum, this Court recognizes that, in the nature of
things, racial desegregation is not just going to happen,
but must be actively achieved, if it is to oceur. It follows,

7. To the same effect, in Fuller v. Volk, 230 F. Supp. 25, 32
(D. N. J. 1964), the Court approved a plan to eliminate de facto
school segregation, which included, ifically, “the racial considera-
tion”. The Court cited Moreau v. Bd. of Education, 42 N. J. 237,
200 A. 2d 97, where the Court held that a school board can take
racial factors into consideration where its moving purpose was racial
integration and that it was proper to use a “double standard” of
pupil assignment which was racially motivated where the object was
to bring about a balanced integration. As in Musicians Local No. 10
v. American Federation of Musicians, 57 LRRM 2227 (N. D. Ill.
1964), the District Court explained that in dealing with racial
objectives, a determination of reasonableness must consider the factual

~ and be realistic in viewing the objectives to be achieved
(34).

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10 Petition for Writ of Certiorari

we submit, that the same considerations apply if existing
desegregation and equality are to be maintained. This is
exactly what Local 1291 has done in trying to ensure the
existence of a bi-racial executive board with equal represen-
tation. We need only look to its effectiveness and success
(the test announced by this Court), as compared with other
unions in the industry, to see that it is reasonable under
Government policy and statute.

The policy expressed by this Court was applied by the
Court of Appeals for the Fifth Circuit in ordering the ap-
plication of such a racial quota to a labor union’s member-
ship and hiring procedures, in Local 53, Heat & Frost In-
sulators v. Vogler, 407 F. 2d 1047 (1969). There, three
applicants for union membership, through the Equal Em-
ployment Opportunity Commission, instituted suit seek-
ing relief against racial discrimination. The District Court
ordered that the union immediately admit into membership
three Negroes and one Mexican-American, and that nine
of these minority persons be refererd for employment, and,
further, that all work referrals shall alternate between
white and negro, ‘‘until objective membership criteria are
developed’’. On appeal, the union argued, inter alia, that
the order violated the prohibitions against ‘‘preferential
racial treatment’’ and established a ‘‘quota system to cor-
rect racial imbalance’’, and that such order conflicted with
the spirit of labor legislation. The Court of Appeals dis-
agreed with all of the union’s contentions, emphasizing
that the affirmative racial formula and quota ordered were
necessary to overcome and to prevent future discrimina-
tion.*

8. Indeed, the appellate court also approved the District Court's
order that the union completely eliminate work experience as a mem-
bership criterion, since the Negroes had theretofore been prevented
from gaining such experience.

Petition for Writ of Certiorart 11

It is clear, then, that active and specific methods are
essential to create and to maintain a racial balance and
equality in labor unions. What the law requires to come
into being, it must also nurture and defend from destruc-
tion. The essence of the complaint about appellant’s elec-
tion provision is specifically that it sets up a ‘*quota
system’’ or a ‘‘racial formula’’ in terms which have, in
prior generations, been offensive to the American ear.
The Government argued, in this case, that racial classifica-
tion cannot possibly be reasonable, no matter how benign
its purpose. However, as the American consciousness has
become sensitive to past racial discrimination, it has devel-
oped a policy of ‘‘affirmative action’’ to take hold of
existing methods and dramatically rework them so that
real opportunity spreads out more evenly and gets into
all of the corners of the American scene. The only means
by which this can be accomplished is by taking race into
account, and developing criteria along racial lines. This
has become the American way, and it appears to be work-
ing. The Local 1291 experience is a unique demonstration
that it works!

The organizers of Local 1291 had the objective, back
in 1932, to institute a union that would be racially inte-
grated; they realized that essential to harmony in any
integrated organization is an integrated group of officers.
In order to avoid intra-union disputes drawn along racial
lines, the membership of the Local, equally white and
colored (76a), agreed upon an integration formula for
oficers. The wisdom of this plan is obvious, when we
view it today by the test of effectiveness. The membership
has continued equally divided between colored and white,
as are the officers (8la, 109a). The Local has avoided
racial problems within it, and the members obviously are
content that these problems continue to be non-existent.

ae ATE NONE PETE Ge eee

BOLE TES PE

12 Petition for Writ of Certiorart

The plaintiff’s main witness, Mr. Cantfil, stated that
no other ILA local has such formula for election of officers
(37a-38a); that this consideration was a ‘‘major factor”
in deciding that the Local 1291 by-law was unreasonable.’
But, a survey of these other ILA locals which do not have
the equal representation by-law demonstrates the practical
failure of integration in absence of such provision. Local
1291 works alongside its sister Local 1332. When 1332
was formed, it was half colored and half white. It never
had the equality by-law. At the beginning, it had colored
and white officers. But, this started to change, so that
since 1953-54, there have been only colored officers (85a).
With this radical change came a change in the membership
race ratio. Today, it is 95 per cent colored, 5 per cent
white (84a-85a).

In the Port of Philadelphia, in addition to Local 1291
and Local 1332, there are Locals 1242 (clerks and check-
ers), all white and officers all white; 1242-1 (timekeepers),
all white and officers all white; 1566 (carpenters), which
has 25 to 30 colored members out of 217, and officers are
all white; 1698 (coal piers), one colored officer and rest
all white (91a-92a); 1694 (Wilmington), 95 per cent
colored, 5 per cent white, and- officers all colored; 1883
(Wilmington, clerks and checkers), all colored members
and officers; 1884 (Wilmington, carpenters), all colored
members and officers (92a). The situation is substantially
the same in New York (95a-97a), in the other ports in the

9. The District Judge before whom the trial took place was
thereupon caused to remark that the fact that Local 1291 may be
alone in its by-law does not persuade him as to its unreasonableness.
He pointed out that in the Brown case, this Court was not persuaded
to retain school segregation because there was segregation through-
out the schools in the South (40a). Indeed, in Brown v. Board of
Education of Topeka, 347 U. S. 483, 98 L. ed. 873 (1954), despite
almost universal racial segregation in Southern schools, this Court
condemned it as unconstitutional. The District Judge above referred
to was Judge Grim. He died after the record was made but before
he rendered a decision. The case was then assigned to Judge Body.

Petition for Writ of Certiorart 13

North, and in the South (74a-75a, 85a, 86a, 87a, 88a, 90a)."°
Out of all of the locals in the ILA, only in Local 1291 has
genuine, balanced integration survived. The Government’s
expert admitted that a by-law tending to promote integra-
tion would be reasonable (47a-48a), and that the basis for
‘reasonableness’? of a provision is its relation to the
promotion of integration (47a-48a, 50a). Thus, even by
the Government’s testimony, the conclusion of unreason-
ableness must fall.

Mr. Moock, ILA International Vice President for the
Port of Philadelphia, testified that, in his opinion, the
Local 1291 by-law is responsible for maintaining the 50-50
ratio in membership. He stated that if this equality by-law
were deleted, the same thing would happen to 1291 as did
to 1332—it would go all one way or the other. Denial of
this situation loses sight of the ‘‘flinty, intractable realities
of day-to-day implementation’’ of the law and denies the
realities of ‘‘experience’’." Mr. Moock and Mr. Askew,

10. In some ports, black locals alternate in working holds in the
same ship, and some steamship lines are fully segregated (86a, 88a,
90a). Shortly before the hearing in this case, there was a grievance
proceeding in Brownsville, Texas. A warehouse had all colored
longshoremen. When the channel from the Gulf of Mexico was
deepened, the ships started to come right up to Brownsville, and
winch operators were needed. The colored longshoremen, having
no experience, could not run winches, and they had to get white
longshoremen to do it. So they had to form a separate local for
white longshoremen. Then, colored longshoremen gradually learned
to operate winches, so the ships started to be jurisdictionally divided
—one day the after end would be operated by colored and the forward
by white and the next day they would switch (90a). Indeed, in
Texas, the segregation has long since become tripartite. After World
War II, banana boats started coming in. Work on these pays less,
and it was considered “beneath the dignity” of both white and colored
locals. So, they let the Mexicans do this work. Result—the Mexi-
cans had to form a third local of their own (90a).

11. Mr. Chief Justice Burger, in Swann v. Charlotte-M ecklen-
burg Bd. of Ed., 402 U. S. at 6, 28 L. Ed. 2d at 561. It is true,
of course, that, in principle, a board of officers of all one race could
be fair to both races, but it is a fact of life that people, as mere human
beings, tend to favor their own race. To guarantee against dis-

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14 Petition for Writ of Certiorart

President of Local 1291, explained how racial make-up of
the officers directly affects that of the membership as a
whole. Mr. Moock stated that new members applying
have to be passed by the Executive Board, made up of
the local officers, who, thus, control who comes in (101a).
With equality among the officers as to race, the Local has
always admitted to membership equal numbers in groups
(102a). Thus, equality has bred equality, and discrimina-
tion and segregation have been successfully prevented
(103a). The same situation exists under the seniority
regulations—when longshoremen accumulate 700 hours in
one contract year, they are eligible for membership, to be
passed upon by the Executive Board (110a). Mr. Askew,
President of Local 1291, stated that if the by-law at issue
were deleted, the local would become predominantly of
one race, depending upon which race was in the majority
of offices. He said that, in his opinion, the Executive
Board would tend to be ‘‘race-prejudiced’’ if not evenly
divided; that the unit of officers which is half of each
race has been a built-in protection against discrimination
(111la).

The basic issue in this case, as expressed below, is
whether Clause 3(c) (3) is a reasonable qualification on the
right of union members in good standing to be candidates
in union elections and to hold office. The District Court
found the provision to be unreasonable because it ‘‘de-
prives fifty percent of the members of Local 1291 from

11. (Cont’d.)

crimination, the equal division of officers can control and prevent it,
as Judge Grim, at the trial, expressed defendant's position : “Human
nature being what it is, that is the practical way to handle it.” (105a).

It has been aptly said that where the case “deals with a matter
pertaining to men’s jobs, the situation is an emotional one” and
that “cynicism and the desire for protections is not all surprising.”
Musicians’ Local No. 10 v. American Federation of Musicians, 57
LRRM 2227, 2234 (N. D. Ill. 1964).

———

a PONCE BENT E LL SNIP ERIO A INTEL OND eee NT TN PINE OES — eee

Petition for Writ of Certiorart 15

pa a

holding each office.’’ (134a). This conclusion is completely
destroyed by the record, which demonstrates that each
office-holder in the Local is an equal member of the
Erecutive Board, which is the highest body in the union
next to the membership."? Thus, the label placed upon
any single office is immaterial to its real authority—any
individual, of whatever race, has equal opportunity to
hold an office which is equal in power and authority to
any other. Therefore, all rationale for the decision below
is lost. The by-law provides for a formula for election
of members of the Executive Board, based upon a ratio
of one colored member to one white member, much as this :
Court approved the mathematical ratios for students and
teachers in the Swann and related cases.

The decision below is that Title IV of the LMRDA can-
not countenance any provision which, although demanded by
the members, includes a formula based on race. It would
indeed be simpler if we could rely on humans not to act like
humans but as utopian beings of infinite selflessness. But,
as Judge Grim recognized, this is not the world in which we
live, and rules of reasonableness must be fashioned to meet
the challenge faced.

If Title IV is to be applied to strike down this provision,
then it will have become a segregation law. Cf. Matter of
Balaban v. Rubin, 14 N. Y. 2d 193, 197 (1964). It will have
been used to abrogate a provision conceived by those solely
affected, to maintain a state of racial integration. The by-
law is, indeed, different and ‘‘unique’’. But, so, in 1954, was

a Na wa

Og EPIL HED AIO

12. The actual control of the Local is in its Executive Board,
which is made up of all officers, so that its make-up is 50-50, and,
then, the whole membership is supreme over the Board. The Presi-
dent has no more vote on the Executive Board than any other member
thereof. All jobs on the Executive Board are equally important, and
the by-law protects this equal representation ana prevents one race
from overwhelming the other in the governing body See Ex. P-2,
P-3 (116a, 119a).

— SAL tt SERRANO TTT AOR ii
PENSE HBC saciatad

16 Petition for Writ of Certiorart

the decision in Brown v. Board of Education.” The deci-
sions below are in direct conflict with those of this Court,
and should be reviewed and reversed.

II. Since There Was No Effort to Make Any Nomination
Which Was Refused, the By-Law Could Not Possibly
Have Affected the Outcome of the Election. Therefore,
the Action by the Secretary of Labor Was an Unwar-
ranted Interference in Internal Union Affairs, Contrary
to the Decisions of This Court in Hodgson v. Local
Union 6799, United Steelworkers, 403 U. S. 333, and
Wirtz v. Hotel, Motel & Club Employees Union, Local
6, 391 U. S. 492.

Title IV of LMRDA, Sec. 402(c), 29 U. S. C. A. 482(c)
provides that not only must the qualification attacked be
unreasonable but, further, it must be found that it ‘‘may
have affected the outcome of the election.’’ This Court has
emphasized the importance of this essential as a strict
condition to application of the statute. In Wirtz v. Hotel,
Motel & Club Employees Union, Local 6, 391 U. S. 492, 506,
20 L. Ed. 2d 763, 774 (1968), Mr. Justice Brennan noted
that the Senate Report in S. 3974, which contained the ‘‘may
have affected’’ language, stated that an election is to be set
aside only if there is reason to believe ‘‘that the violation
probably affected the outcome of the election.’’ (emphasis
the Court’s) (U. S. at 505, L. Ed. at 774). This Court
adopted the reasoning of the Court of Appeals for the
Second Circuit :

‘¢<«The proviso was intended to free unions from
the disruptive effect of a voided election unless there is
a meaningful relation between a violation of the Act

13. 347 U. S. 483, 98 L. ed. 873 (1954).

14. Wirtz v. Local Union 410, IUOE, 366 F. 2d 438, 443. In
that case, the by-law at issue made 93 percent of the membership
ineligible for office.

soeemanens ven vene ares . 4 ~ , ™ HUES
TERE TIMER RE SY NF LON TION RA HEE Se

RB

Petition for Writ of Certioran 17

and results of a particular election. For example, if
the Secretary’s investigation revealed that 20 percent
of the votes in an election had been tampered with, but
that all officers had won by an 8-1 margin, the proviso
should prevent upsetting the election. . . .’ ” @. @
at 507, L. Ed. at 774-75) (emphasis supplied)

Here, since there was no effort to make a nomination
which was refused, there can be no ‘‘meaningful relation’
between the by-law at issue and the results of the election,
and there is no basis for a finding that the attacked
proviso ‘‘probably”’ affected the outcome.

In this case, Mr. Bey, the charging party, ran for Presi-
dent, after being nominated. No one, including Mr. Bey,
attempted to make any nomination which was refused
(33a).1° Nevertheless, the District Judge, while not actually
discussing this contention, held that ‘‘the Rule can be said
to have affected the outcome of the 1963 election’’ (134a)
(emphasis supplied). This conclusion is insufficient to satisfy
the statute. The Court discussed the fact that Mr. Bey was
permitted to run for office only with reference to the power
of the Secretary to enlarge upon the complaint, stating that,
under the Act, any member can complain of improper denial
of the right to run for office or to nominate for office (133a).
This does not answer the essential issue, however.

The requirement that the alleged impropriety may have
affected the outcome of the election is a statutory precondt-
tion to the final order made below. Therefore, the statement
of the conclusion did not suffice as a basis for the Court’s

15. Complainant may not sit back at time of nomination and be
silent, and then complain that he was barred from making a nomina-
tion. In Rarick v. United Steelworkers, 190 F. Supp. 158 (W. D.
Pa., 1960), a union member sought an injunction to bar an election
without his name on the ballot. Since there was no allegation that
plaintiff's name had been placed in nomination or that it had been
withheld from the ballot, the court refused the injunction.

J
c
> |

Nii re a ia ja or ee

18 Petition for Writ of Certiorart

action, especially since the facts to sustain it were not found,
and, indeed, cannot be substantiated in the record. The
Government’s intrusion into petitioner’s affairs was with-
out lawful basis.

This Court has repeatedly emphasized the limitations
set by Congress upon the power of the Secretary of Labor
to intervene in internal union affairs. In Hodgson v. Local
Union 6799, United Steelworkers, 403 U. S. 333, 29 L. Ed.
2d 510 (1971), this Court warned the Secretary against
adopting an ‘‘expansive view of his authority’, and in-
structed him to heed the ‘‘clear Congressional concern”
that there be no ‘‘unnecessary governmental interference
with internal union affairs’ (U.S. at 338, L. Ed. at 515).
Mr. Justice Marshal! quoted the general objectives as ex-
pressed by Congress :

‘“*A strong independent labor movement is a vital
part of American institutions. The shocking abuses re-
vealed by recent investigations have been confined to
afew unions. The overwhelming majority are honestly
and democratically run. In providing remedies for
existing evils the Senate should be careful neither to
undermine self-government within the labor movement
nor to weaken unions in their role as the bargaining
representatives of employees. S. Rep. No. 187, 86th
Cong., Ist Sess., p. 5 (1959).’’ (U.S. at 338-39, L. Ed.
at 515).

Under the circumstances, the Secretary of Labor had
no power to file his complaint, and his suit was an unwar-
ranted intrusion into internal union affairs. Any action
by the District Court was necessarily solely advisory and
declaratory, for which the Act provides no jurisdiction.
Colpo v. Local 107, Teamsters, 305 F. 2d 362, 363 (3rd Cir.,
1962).

Petition for Writ of Certiorart 19

The position of appellee throughout this case has been
that the members of Local 1291 are virtual prisoners of the
equality-in-office by-law. But, the ILA constitution (Article
XII, Section 5) and the Local by-law 16 provide for amend-
ment of by-laws (94a). Any member may propose an
amendment at any regular business meeting or special meet-
ing called for that purpose. No proposal has ever been
made to delete the equality by-law. Mr. Bey never has
offered or suggested any amendment (94a). The Govern-
ment’s position is bound in the contention that it seeks
“internal union democracy’. Such democracy is the ‘‘ right
to self-government."""* The provision under attack orig-
inated with the rank-and-file, and became Local policy at
their insistence. They may change it at will. This is the
essence of self-government. Obviously the members of the
union are content that the highest decision- and policy-
making authority in the union next to the full membership,
the Executive Board, must be equally bi-racial. Their
refusal to move to change it is their exercise of democracy.

No longer may racial factors be ignored in the ex-
pressed interest of ‘racial equality.’’"? This Court has
now completely deleted from our social jurisprudence the
duty to speak of race only softly in society’s effort to dis-
tract itself from racial differences. The issue, this Court
has said, must be recognized and dealt with realistically.
Racial equality of opportunity has been determined to be
best achieved by affirmative racial integration. Human
weaknesses, selfishness and carelessness must be admitted ;

16. Sheridan v. United Brotherhood of Carpenters, 306 F. 2d
152, 158 (3rd Cir. 1962).

17. “. . . today. . _ color blindness is impermissible.” Shan-
non, et al. v. U. S. Dept. of Housing & Urban Development, 436
F. 2d 809, 820 (3rd Cir. 1970).

SE ROE ER I a ET ee

PO EGE Oy ENT BINT we

4-.-~~

20 Petition for Writ of Certioran

only then can they be exorcised ; then only can the intent of
the Congress in enacting the LMRDA and, then, the Civil ©
Rights Acts of 1964 and 1972, be realized. Compatible with ©
this policy, this Court has held that racial considerations —
must be applied if racial integration is to be achieved. —
Quotas and formulas based on race are mandatory. The
real issue, then, in this case is: Is not a formula based upon
race as reasonable to maintain integration as to achieve it?
Where racial integration and equality have been achieved
and maintained, should not the status quo be retained?

This Court has held that we must learn from “‘er-
perience’’ and apply ‘‘effectiveness’’.'* Experience shows
that the Local 1291 policy has, for forty years, been uniquely
effective. It cannot, in the interest of American public
policy, be destroyed.

The determination below that such policy is unreason-
able defeats the purpose of Title IV, and would destroy the
intent of the Civil Rights Act. In the interest of justice and
to implement the intent of Congress, certiorari should be

granted, and judgment reversed.

Respectfully submitted,

AsranamM E. FReepmay,

Maartrs J. VicbERrMay,

FReepMaN, Borowsky anv Lorry,
Attorneys for Petziioner.

18. Swenn and Devis cases, supra.

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INDEX TO APPENDIX.

Appenptx A—Statute Involved .....-.------+--ereerrecte
AppenpIx B—Order of the United States District Court for
the Eastern District of Pennsylvania, of Con-

WUE os a ciccnnwnssncanvcesssccmeccsretsss

Appenpix C—Opinion of the United States Court of Appeals
; for the Third Circuit ........-..-------+005
Appenpix D—Judgment of the United States Court of Ap-
peals for the Third Circuit .......-.-------

Appenpix E—Order of the United States Court of Appeals
for the Third Circuit Denying Rehearing ....

Page

Al6

A20

:
F
Bi
t
}
;
i

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CADENA MILE ch

Spr gore

APPENDIX A.

Labor-Management Reporting and Disclosure Act of 1959
(LMRDA), 29 U. 8. C. A.

e * *
SuscHaPtTer V.—ELECcTIONS
4451. Terms of office and election procedures—Officers of
national or international labor organizations; man-
ner of election

(a) Every national or international labor organization,
except a federation of national or international labor organ-
izations, shall elect its officers not less often than once every

five years either by secret ballot among the members in good :
standing or at a convention of delegates chosen by secret 3
ballot. é

=

Officers of local labor organizations; manner of election :

(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. ;
Requests for distribution of campaign literature; civil :
action for enforcement ; jurisdiction; inspection of :
membership lists; adequate safeguards to :

insure fair election f

(c) Every national or international labor organization, :

except a federation of national or international labor organ- :
izations, and every local labor organization, and its officers, :
shall be under a duty, enforceable at the suit of any bona z

fide candidate for office in such labor organization in the ‘
district court of the United States in which such labor é
(Al) ?

¥
a
rf
*
4
Bevesvene: §

A2 Appendia A

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 campaign
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 organizations or its officers authorize the distri-
bution by mail or otherwise to members of campaign litera-
ture on behalf of any candidate 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 treat-
ment as to the expense of such distribution. 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 can-
didate, 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
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 pro-
vided, including the right of any candidate to have an ob-
server at the polls and at the counting of the ballots.

Officers of intermediate bodies; manner of election

(d) Officers of intermediate bodies, such as genera
committees, system 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 member
who have been elected by secret ballot.

ARIS FOS THRE AP AE IAS TOTS I EY Me PO ALAN RTS I SET

Appendia A A3

Nomination of candidates; eligibility; notice of election;
voting rights; counting and publication of results;
preservation of ballots and records

(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 of this title and to reason-

able qualifications uniformly imposed) 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 agree-
ment shall be declared ineligible to vote or be a candidate
for office in such organization by reason of alleged delay or
default in the payment of dues. The votes cast by members
of each local labor organization shall be counted, and the
results published, separately. The election officials desig-
nated in the constitution and bylaws or the secretary, if no
other official is designated, shall preserve for one year the
ballots and all other records pertaining to the election. The
election shall be conducted in accordance with the consti-
tution and bylaws of such organization insofar as they are
not inconsistent with the provisions of this subchapter.

Election of officers by convention of delegates; manner
of conducting convention; preservation of records

(f) When officers are chosen by a convention of dele-
gates elected by secret ballot, the convention shall be con-

wines sient |

PENT

at

PLS REL ey

OP RSTLS Se

- See ee

A4 Appendix A

ducted in accordance with the constitution and bylaws of
the labor organization insofar as they are not inconsistent
with the provisions of this subchapter. The officials desig-
nated in the constitution and bylaws or the secretary, if no
other is designated, shall preserve for one year the creden-
tials of the delegates and all minutes and other records of
the convention pertaining to the election of officers.

Use of dues, assessments or similar levies, and funds of
employer for promotion of candidacy of person

(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 pro-
visions of this subchapter. Such moneys of a labor organi-
zation may be utilized for notices, factual statements of
issues not involving candidates, and other expenses neces-
sary for the holding of an election.

Removal of officers guilty of serious misconduct

(h) If the Secretary, upon application of any member
of a local labor organization, finds after hearing in accord-
ance with the Administrative Procedure Act that the con-
stitution and bylaws of such labor organization do not pro-
vide an adequate procedure for the removal of an elected
officer guilty of serious misconduct, such officer may be re-
moved, for cause shown and after notice and hearing, by
the members in good standing voting in a secret ballot con-
ducted by the officers of such labor organization in accord-
ance with its constitution and bylaws insofar as they are
not inconsistent with the provisions of this subchapter.

Rules and regulations for determining adequacy of
removal procedures

(i) The Secretary shall promulgate rules and regula.
tions prescribing minimum standards and procedures for

Appendia A A5

determining the adequacy of the removal procedures to
which reference is made in subsection (h) of this section.
Pub. L. 86-257, Title IV, 4401, Sept. 14, 1959, 73 Stat. 532.

4482. Enforcement—Filing of complaint; presumption of
validity of challenged election

(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

(2) who has invoked such available remedies with-
out obtaining a final decision within three calendar
months after their invocation,

may file a complaint with the Secretary within one calendar
month thereafter alleging the violation of any provision of
section 481 of this title (including violation of the consti-
tution and bylaws of the labor organization pertaining to
the election and removal of officers). The challenged elec-
tion shall be presumed valid pending a final decision thereon
(as hereinafter provided) and in the interim the affairs of
the organization shall be conducted by the officers elected or
in such other manner as its constitution and bylaws may
provide.

Investigation of complaint; commencement of civil
action by Secretary; jurisdiction; preservation
of assets

(b) The Secretary shall investigate such complaint and,
if he finds probable cause to believe that a violation of this
subchapter has occurred and has not been remedied, he
shall, within sixty days after the filing of such complaint,
bring a civil action against the labor organization as an

se

ee

I Pere tees or

LIE EE EI LILLIE EI OLE AIRLLINES ESTES EEL TOL

A6 Appendur A

Declaration of void election; order for new election;
certification of election to court; decree; certifi-
cation of result of vote for removal
of officers

(ec) If, upon a preponderance of the evidence after «
trial upon the merits, the court finds—
(1) that an election has not been held within the
time prescribed by section 481 of this title, or
(2) that the violation of section 481 of this title
may have affected the outcome of an election,

vote and the court shall enter a decree declaring whether
such persons have been removed as officers of the labor

organization.

Appendiz A AT
Review of orders; stay of order directing election

A8 Appendiz B
APPENDIX B.

1 THE
UNITED STATES DISTRICT COURT
For tue Easteax Distaict or Pexwsyivania.

Creu. Action No. 35849.

GEORGE P. SHULTZ, Seceerany or Lason,
Usrrep States Derartuert or Lason

LOCAL 1291, INTERNATIONAL LONGSHOREMEN'S
ASSOCIATION.

Opinion and Order.

Boor, J. January 6, 1972.

Presently before this Court, on remand from the Court
of Appeals, Shultz v. Local 1291, I. L. A., 429 F. 2d 52
(3d Cir. 1970), is this action instituted by the Secretary
of Labor under Title IV of the Labor-Management Report-
ing and Disclosure Act, 29 U. S. C. § 481 et seq., to set
aside an election in which Abdullah Ahmed Bey, the com-
plaining union member,’ was defeated for the presidency
of Local 1291, International Longshoremen's Association
[L. L. A.], and to require a new election supervised by the
Secretary. Initially we note the change in the Office of
the Secretary of Labor and on our own motion will order

1. Bey filed his int about Rule 3(c)(3) originally with
the president of Local | on December 16, 1963

Appendiz B A9

but we will review it now insofar as it ix relevant to the
matter still before us.’

Local 1291's by-laws include the following provision
{Rule 3(c)(3)), whieh is at issue here.

«In accordance with tradition heretofore observed, the
President shall be of the colored race, Vice President,
white, Recording Secretary, white, Financial Secretary,
colored, Asst. Financial Secretary, white, 4 Business
Agents equally proportioned, 3 Trustees (Auditors),
1 white & 2 colored, 2 Sergeants at Arms, 1 colored
and 1 white."’

Since its inception in 1932, Local 1291 has had approxi-
mately a fifty-fifty split in membership between blacks and
whites.

Abdullah Ahmed Bey, who claims to be an Arab, was

A10 Appendiaz B

he would have nominated other persons for the office of
president and lower positions. N. T. 79-83, 87-89."

It is now undisputed that Bey exhausted his internal
union remedies before bringing his complaint to the atten-
tion of the Secretary of Labor. Schultz v. Local 2191,
1. L. A., 429 F. 2d 592 (3d Cir. 1970).* It is no longer
disputed that this action is not moot, despite the fact that
the remedy sought is a setting aside of the 1963 election
and that there have been intervening elections since that
time. See Wirtz v. Local 153, Glass Bottle Blowers Ass’n.,
389 U. S. 463 (1968); Shultz v. Local 1291, I. L. A., 429
F. 2d 592 (3d Cir. 1970).

Defense counsel has suggested that this Court lacks
jurisdiction of the subject matter because Bey was per-
mitted to run for office and was not himself prejudiced
by the application of Rule 3(c)(3). We disagree with this
contention. The statute provides that ‘‘[A] member of a
labor organization . . . may file a complaint with the Secre-
tary . . . alleging the violation of any provision of Section
481. . . .”’ (emphasis added) 29 U. S. C. § 482(a). There
is no limitation on the status of the complainant other than
that he be a member of a labor organization. There is no
requirement that the complaining union member must have
been denied either the right to run for office himself or
the right to nominate others for union office. The Supreme
Court has on two occasions taken a broad view of Title IV
of the Labor-Management Reporting and Disclosure Act:
‘«. . . the Act is not so limited [to protect(ing) the right
of a union member to run for a particular office in a par-

3. Notes of Testimony before the late Judge Allan K. Grim on
November 22-24, 1965.

4. 29 U. S. C. §482(a) makes exhaustion of internal union
remedies a prerequisite to a union member seeking relief from the
Secretary. Similarly, 29 U. S. C. § 482(b) provides that the Secre-
tary may investigate alleged irregularities and file a civil action only
after a complaint of a union member has been filed with him.

Appendiz B All

ticular election], for Congress emphatically asserted a vital
public interest in assuring free and democratic union elec-
tions that transcends the narrower interest of the complain-
ing union member.’’ Wirtz v. Local 153, Glass Bottle
Blowers Ass’n., 389 U. S. 463, 475 (1968); Wirte v. Local
125, Laborers’ International Union, 389 U. 8S. 477, 483
(1968). Accordingly, we hold that the complaint filed by
Bey with the Secretary of Labor furnished an adequate
basis on which the Secretary could investigate and later
bring suit to set aside the 1963 election under 29 U. S. C.
§ 482(b).

29 U. S. C. § 481(e) provides:

‘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 mem-
ber 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 sup-
port the candidate or candidates of his choice, without
being subject to penalty, discipline or improper inter-
ference or reprisal of any kind by such organization
or any member thereof.’’

The basic issue in this case, briefly stated, is whether Rule
3(c)(3) is a reasonable qualification on the right of union
members in good standing to be candidates in union elec-
tions and to hold office. If it is not, and if it may be said
that existence of the Rule affected the outcome of the 1963
election, then this Court must void that election. We now
hold that Rule 3(c)(3) is an unreasonable qualification on
the right of union members to be candidates and to hold
office and that the existence of the Rule can be said to have
affected the outcome of the 1963 election: accordingly, we

LPP LEE ES ME ee EE

Al2 Appendix B

will void that election and order a new election under the
supervision of the Secretary of Labor.

The language ‘‘reasonable qualifications uniformly im-
posed”’ should not be given a broad reach. Rather, whether
Rule 3(c)(3) is ‘‘a reasonable qualification must be meas-
ured in terms of its consistency with the Act’s command to
unions to conduct ‘free and democratic’ union elections.”
Wirtz v. Local 6, Hotel, Motel & Club Employees Union, 391
U. 8. 492 (1968). Since Rule 3(c)(3) deprives fifty percent
of the members of Local 1291 from holding each office, there
must be a very compelling reason why it should be upheld.
See Acevedo v. Local 25, Bookbinders € Machine Operators,
196 F. Supp. 308, 311-12 (S. D. N. Y. 1961).

The major difficulty we find with the racial qualifica-
tions imposed by Rule 3(c)(3) is that there is no objective
relationship between the eligibility qualifications and the
duties of the office involved. Whether one has merit or
ability or experience to hold office is immaterial if the ap-
propriate racial characteristic is not also present. As the
Supreme Court has recently stated in a related context: ‘‘A
classification must be reasonable, not arbitrary and must
rest upon some ground or difference having a fair and sub-
stantial relationship to the object of the legislation, so that
all persons similarly circumstanced shall be treated alike.”
Reed v. Reed, — U. S. — (November 22, 1971).°

The Rule is of indefinite duration. Hence, absent a
change of by-laws, a white person could never be president
of the local nor could a colored person ever be vice-

5. Reed was a decision i ing an arbitrary preference given
Sas Seavemee Come bls ont 0. deed estate administrators in Idaho.

Appendiz B A13

president. Such a permanent disbarment from union elec-
tive positions on the basis of qualifications bearing no ob-
jective relationship to the duties of office seems clearly
unreasonable. See Acevedo v. Local 25, Bookbinders &
Machine Operators, supra.

Defendant seeks to justify this Rule on a Civil Rights
rationale. He claims that, but for this by-law, the union
would slip into a segregated status with the possible de-
velopment of dual segregated local unions.* He claims that
this Rule, though somewhat distasteful, is required to main-
tain an integrated union, and hence fosters the cause of
Civil Rights.

We feel that defendant’s argument is unduly specula-
tive. Admittedly this Rule could act as a stabilizing in-
fluence on the racial composition of the union. But, should
the racial composition of persons looking for jobs as long-
shoremen change, it seems likely that union membership
would have to reflect that change.’ It would also seem that
dual segregated union locals are no longer permissible
under the Civil Rights Act of 1964 and courts have re-
quired their merger as a solution to the problem. Local
274, Musicians’ Protective Union v. American Federation
of Musicians, 329 F. Supp. 1226 (E. D. Pa. 1971); United
States v. I. L. A., 319 F. Supp. 737 (D. Md. 1970); see
United States v. I. L. A., Civil Action No. 69-B-3 (S. D.
Tex., Nov. 12, 1971).®

6. The President of Local 1291, Richard L. Askew, testified to
this effect. N. T. 328-331.

7. Labor organizations may not exclude persons from member-
ship on the basis of race. 42 U. S. C. § 2000e-2(c). Local 53, Inter-
national Ass'n. of Heat and Frost Insulators and Asbestos Workers
v. Vogler, 407 F. 2d 1047 (Sth Cir. 1969).

8. Under 42 U. S. C. § 2000e-5(g), the District Court is in-
vested with a large measure of discretion in modeling its decree to
assure compliance with the Act. Local 53, International Ass'n. of
Heat and Frost Insulators and Asbestos Workers v. Vogler, supra.

Al4 Appendia B

It also appears that Rule 3(c)(3) amounts to an un-
lawful employment practice within the meaning of 42
U. S. C. § 2000e-2(c) :

‘Tt shall be an unlawful employment practice for a
labor organization—

(1) to exclude or to expel from its membership, or
otherwise to discriminate against any individual
because of his race, color, religion, sex, or national
origin.”’

The Supreme Court, in speaking of this Act but with re-
spect to unlawful employment practices by employers, 42
U. S. C. § 2000e-2(a), stated: ‘‘ Discriminatory preference
for any group, minority or majority, is precisely and only
what Congress has proscribed. What is required by Con-
gress is the removal of artificial, arbitrary and unnecessary
barriers to employment when the barriers operate in-
vidiously to discriminate on the basis of racial or other
impermissible classification. . . . If an employment prac-
tice which operates to exclude Negroes cannot be shown to
be related to job performance, the practice is prohibited.”
(Emphasis added.) Griggs v. Duke Power Co., 401 U. &.
424, 431 (1971). We cannot consider as reasonable for
purposes of the Labor-Management Reporting and Dis-
closure Act what would be considered an unlawful employ-
ment practice under the Civil Rights Act of 1964.

Lastly, we note that the terminology white and colored
may operate to exclude from office persons who are con-
sidered to be of neither group, such as one Polynesian
member of the union. If he were to be deemed of neither
group, he would never be eligible to run for any office
solely on the basis of his racial background. There ap-
pears never to have been an authoritative construction of
this Rule so as to prevent this occurrence. See N. T. 94-98.

Appendix B Al5

For all the above-stated reasons we are compelled to
find that Rule 3(c)(3) was an unreasonable qualification on
the right of Local 1291 members to be candidates and to
hold office after the 1963 elections. The conclusion that
there was a violation of 29 U. 8. C. §481(e) also establishes
a prima facie case (which has not here been rebutted) that
the violation ‘‘may have affected’’ the outcome of this elec-
tion. Wirtz v. Local 6, Hotel, Motel & Club Employees,
391 U. S. 492, 505-508 (1968) and we will set aside this 1963
election under the authority of 29 U.S. C. §482(c).

ORDER.

Axp Now, this sixth day of January, 1972, Ir Is
Orverep that the caption be amended so that James Hodg-
son, Secretary of Labor, be named the Complainant.

Ir Is Furtuer Orpverep that the December 10, 1963
election of Local 1291, International Longshoremen’s Asso-
ciation, be voided and that a new election be conducted
under the supervision of the Secretary of Labor in accord-
ance with this opinion and with the provisions of 29 U. S. C.
§ 482(c).

Raups C. Bony, J.

EL MORNE MET Tne ery:

Al6 Appendiz C

APPENDIX C.

UNITED STATES COURT OF APPEALS
For tHe Tump Circuit

No. 72-1134.

JAMES HODGSON, Secretary or Lasor
Unttep States DeparRTMENT oF LaBoR

v.

LOCAL 1291, INTERNATIONAL LONGSHOREMEN’S
ASSOCIATION (ILA),
Appellant.

AppgeaL From tHE Unitep States District Court FoR THE
Eastern District oF PENNSYLVANIA

Argued June 22, 1972

Before Serrz, Chief Judge, Rosen and
Hunter, Circuit Judges.

Opinion of the Court.
(Filed July 20, 1972)

Per Curiam.

This is an appeal from a judgment of the district court
invalidating a by-law of the defendant Union and ordering
a new election. We are in accord with the decision of the

Appendiz C Al7

district court substantially for the reasons given in that
court’s opinion. See Schultz v. Local 1291, 338 F. Supp.
1204 (E. D. Pa. 1972).

Subsequent to its judgment ordering an election, and
after this appeal was filed, the district court granted a con-
tinuance of a civil contempt proceeding instituted by the
Secretary based on the alleged refusal of the Union to co-
operate in the holding of the election. Thereafter, the
Secretary filed a motion in this appeal to vacate the district
court’s order of June 9, 1972, granting the continuance.
In view of our affirmance on the merits, rather than act on
the motion, we expect the district court promptly to vacate
its continuance order.

The judgment of the district court will be affirmed.

A18 Appendia D
APPENDIX D.

UNITED STATES COURT OF APPEALS
For tHe Turep Circuit

No. 72-1134.

JAMES HODGSON, Secretary or Lasor,
Unrtep States DEPARTMENT OF LABOR

Vv.

LOCAL 1291, INTERNATIONAL LONGSHOREMEN’S
ASSOCIATION (ILA),
Appellant.

(D. C. Crvm Action No. 35849)

On AppraAL From THE Unitep States District Court
FOR THE HasteRN District oF PENNSYLVANIA

Present: Sg1tz, Chief Judge and Rosen and
Hunter, Circuit Judges.

Judgment.

This cause came on to be heard on the record from the
United States District Court for the Eastern District of
Pennsylvania and was argued by counsel.

On consideration whereof, it is now here ordered and
adjudged by this Court that the judgment of the said Dis-

Appendia D A19

trict Court, filed January 6, 1972, be, and the same is hereby
affirmed, with costs taxed against appellant.

ATTEST :
M. ExizaBetH FERcuson,
Chief Deputy Clerk.

July 20, 1972

A20 Appendia E
APPENDIX E.

UNITED STATES COURT OF APPEALS
For tas Tamp Crmcurt

No. 72-1134.

JAMES HODGSON, Secuerany or Lason,
Unrrep States Department or Lason

LOCAL 1291, INTERNATIONAL LONGSHOREMEN’S
ASSOCIATION (ILA),

Appellant.

Bur Petition for Rehearing.

Present: Serrz, Chief Judge, Vax Dusex, Aupisert, Apams,
Gresons, Rosexx, Rosex, and Huwrsr, Circuit Judges.

The petition for rehearing filed by Appellant in the
above entitled case having been submitted to the judges
who participated in the decision of this court and to all the
other available circuit judges of the circuit in regular active
service, and no judge who concurred in the decision having
asked for rehearing, and a majority of the circuit judges
of the circuit in regular active service not having voted for
rehearing by the court in banc, the petition for rehearing
is denied.

By THE COURT,
Couuaxs J. Serrz, Judge.

Dated: August 28, 1972

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385606_1678%3A1. Public record. Not legal advice.