Appendix — Driscoll v. International Union of Operating Engineers, Local 139

la

Opinion of the United States Court of Appeals

for the Seventh Circuit

3u the

Gnited States Court of Appeals

For the Seventh Circuit

SerremsBer Term, 1972 ApriL Session, 1973

No. 72-1423 7

JosEPH M. Drisco.t, Appeal from the

Plaintiff-Appellant, United States Dis-

v. trict Court for the

INTERNATIONAL Union Or Opren- Eastern District of

ATING E\notnerrs, Loca 139, . Wisconsin.

Defendant-Appellee,

and No. 70-C-55

INTERNATIONAL Union Or Oprr-

ATING Finarnerrs, AFL-CIO, JoHun W. Reynorns,

Intervenor-Defendant- Judge.

Appellee, }

Arcuep Apri 23, 1973 — Decipep Sepremser 11, 1973

Before Swycert, Chief Judge, Castte and Barnrs*,

Senior Circuit Judges.

Castir, Senior Circuit Judge. Plaintiff Joseph M.

Driscoll instituted this action against Local No. 139 of

the International Union of Operating Engineers seeking

to force the T.ocal to discontinue requiring all candidates

for union office to execute a non-Communist affidavit.

Because its by-laws required that its local unions demand

such an affidavit, the international union intervened. On

March 23, 1972, the district court dismisssed Driscoll’s

*The Honorable Stanley N. Barnes, Senior Circuit Judge of the United

States Court of Appeals for the Ninth Circuit, is sitting by designation.

4

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complaint for want of jurisdiction. Driscoll v. Interna-

tional Union of Operating Engineers, Local 139, 339 F.

Supp. 757 (E.D. Wis. 1972).

The parties have stipulated to the facts of this case,

which are succinctly reported in the district court opinion.

Id. at 758-59. Briefly stated, Driscoll was denied the

opportunity to run for the position of treasurer of Local

139 because he declined to execute an affidavit affirming

that he was not a member of the Communist Party or any

organization advocating the overthrow of the United

States government.’ After exhausting his internal union

remedies, he filed a complaint with the United States

Department of Labor pursuant to § 402 of the Labor-

Management Reporting and Disclosure Act of 1959, 29

U.S.C. § 482 (1970) (the “LMRDA”) charging that the

affidavit requirement violated § 401 of the LMRDA.’?

After the Department of Labor declined to institute

litigation on his behalf,’ Driscoll filed this action in district

court, alleging violations of section 101(a)(1), (2) and

(5) of the LMRDA (29 U.S.C. §411(a)(1), (2) and (5)),

and the Civil Rights Act of 1871 (42 U.S.C. $1983).

1The affidavit which Driscoll originally refused to sign contained the

following language:

I swear that I am not at the present time or have ever been

[sic] a member of the Communist Party or any other subversive

organization dedicated to or advocating the overthrow of the

Government of the United States.

The oath was subsequently revised to the following form:

I swear that I am not a member of the Communist Party or other

organization that advocates the overthrow of the United States

Government by force or violence, knowing of and sharing in such

advoca and ome pursuant to the teachi that the United

States Government should be overthrown by such means.

Driscoll refused to sign this version of the oath also.

2§ 401 of the Act, 29 U.S.C. § 481, states in pertinent pests

(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 reasonable qualifications uniformly imposed).

United States v. Brown, 381 U.S. 437 (1965), struck down the provisions

of § 504 making it a crime for a member of the Communist Party to

serve as an officer or employee of a labor union because they constituted

a “bill of attainder” outlawed by article I, § 9 of the United States

Constitution.

The Department of Labor notified Driscoll that it had decided to

close his case because “it had been determined that this case is not

suitable for litigation under Section 402 of the Act.” No further explana-

tion was given.

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The district court rejected plaintiff’s constitutional

arguments, finding that the action of Local 139 in promul-

gating and enforcing the affidavit requirement did not

constitute governmental action which could be regulated

by constitutional protections. Jd. at 760-61. The court also

found that the invocation of the LMRDA as the statutory

basis for Driscoll’s suit was barred by provisions of that

same act making complaint to the Secretary of Labor

the exclusive remedy for the denial of one’s right to be a

candidate for union office. Jd. at 762. Accordingly, it

dismissed the complaint for want of federal jurisdiction.

Plaintiff appealed, and presses in this court the argu-

ments that the district court had jurisdiction pursuant

to both the LMRDA and the first and fifth amendments

to the United States Constitution.

I. Jurisdiction Under the Labor-Management

Reporting and Disclosure Act of 1959.

Appellant Driscoll argues that the district court erred

in concluding that it had no jurisdiction over his com-

plaint under § 102 (29 U.S.C. § 412)* because defendants

have violated § 101(a)(1), (a)(2) and (a)(5). On this

appeal he places his primary reliance on § 101(a)(2)°

by arguing that defendants have infringed upon his right

of free speech by denying him the right to run for union

office.

‘ Any pen, whose rights secured by the provisions of this sub-

chapter have been infringed by any violation of this subchapter

may bring a civil action in a district court of the United States

for such relief (including injunctions) as may be appropriate.

Any such action against a labor organization shall be brought in

the district court of the United States for the district where the

alleged violaion occurred, or where the principal office of such labor

organization is located.

5 Freedom of speech and assembly.—Every member of labor

organization shall have the right to meet and assemble with

other members; and to express any views, arguments, or opinions;

and to express at meetings of the labor organization his views,

upon candidates in an election of the labor organization Pan on any

business property before the meeting, subject to the tion’s

established and reasonable rules pe to the conduct of meet-

ings: Provided, That nothing herein be construed to impair

the right of a labor organization to adopt and enforce reasonable

rules as to the responsibility of every member toward the organiza-

tion as an institution and to his refraining from conduct that would

interfere with its performance of its legal or contractual obligations,

ta

Driscoll’s attempt to rely upon § 101(a)(2), however,

must overcome an initial hurdle posed by the ambiguity

of certain language of the LMRDA and by the interpreta-

tion of this language in Calhoon v. Harvey, 379 U.S. 134

(1964). The ambiguity arises from the fact that two

separate titles of the LMRDA arguably provide remedies

to plaintiff Driscoll in this action. Title I allows a private

suit pursuant to §§ 101(a)(2) and 102 to vindicate the

denial of the right of free speech, and Title ITV provides

for complaint to and an action brought by the Secretary

of Labor to vindicate Driscoll’s right of candidacy for

union office under § 401(e), 29 U.S.C. § 481(e),° which,

by the terms of the statute, is the exclusive means of

challenging an election already conducted. 29 U.S.C. § 483.

The district court held that it had no jurisdiction

under ¢ 102 over a private suit to void a restriction

on candidacy for union office, for, the right of can-

didacy being an explicit Title TV right, the provisions

of Title IV providing for complaint to and suit by the

Secretary of Labor to protect this right was the only

remedy available. In reaching this conclusion, the court

relied upon Calhoon v. Harvey, supra, where the Supreme

Court dismissed a Title I suit to strike down restrictions

on eligibility for union office and held that jurisdiction

under 29 U.S.C. § 412 could not “be upheld by reliance

in whole or in part on allegations which in substance

charge a breach of Title IV rights.” 379 U.S. at 138.

Driscoll seeks to avoid the application of Calhoon to the

facts of his particular case on the ground that his case,

unlike Calhoon, involves a direct infringement upon his

Title I right to freedom of speech. He notes that plaintiff

Calhoon sought to attack the requirement that candidates

be union members for 5 years and have accumulated

180 days of seatime in two of the past three years;

here, however, Driscoll alleges that the denial of can-

dicacy constitutes a punishment for exercising his right

to free speech as guaranteed by § 101(a)(2). Conse-

quently, he argues, this court should have jurisdiction

to strike down the requirement just as other courts have

had jurisdiction to strike down other union sanctions

®See note 2, supra.

5a

upon the free speech of their officers’ and members.°

If such jurisdiction is not established, he submits, the

holding of the district court will enable any union to

avoid the direct judicial review provisions of Title I

simply by veiling its repressive measures in the form

of requirements for elective office.

Despite the factual differences between Calhoon and

the instant case, we are still bound by the maxim of

Calhoon that

. . . disputes . . . basically relating as they do to

eligibility of candidates for office, fall squarely within

Title IV of the Act and are to be resolved by the .

Se and judicial procedures set out in that

itle.

379 U.S. at 141. Since Driscoll’s allegations “basically

relate” to eligibility and charge “in substance” that he

has been denied the right to run for office in his union,

he is therefore stating a cause of action which can be

enforced only under the provisions of Title IV calling

for complaint to and suit by the Secretary of Labor as

the exclusive remedy.’ The fact that six of the members

™Grand Lodge of the International Association of Machinists v. King,

335 F.2d 340 (9th Cir.), cert. denied, 379 U.S. 920 (1964), Salzhandler

v. Caputo, 316 F.2d 445 (2d Cir.), cert. denied, 375 U.S. 946 (1963).

8 See, e.g., International Brotherhood of Boilermakers v. Rafferty, 348

F.2d 307 (9th Cir. 1965), Farowitz v. Associated Musicians of Greater

New York, Local 802, 330 F.2d 999 (2d Cir. 1964).

®On appeal, defendants have apparently abandoned the t

that the district court had no jurisdiction over Driscoll’s LMRDA

allegations, and have contended instead that, although jurisdiction

exists, the laint does not state a cause of action. Defendants have

reasoned that § 101(a)(2) permits a union to impose “reasonable rules

as to the responsibility of every member toward the organization as an

a le rule. To support q

because Congress § 502 of the A (which prohibited

Communists from ing union office) at the same time as § 101, it must

have determined that any union an

affidavit requirement was reasonable.

We do not read Calhoon as admitting jurisdiction over plaintiff's

complaint so as to make it necessary to reach def 's

substance that the restrictions

unreasonable; the Court held that such a claim was not

,

:

:

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of the Calhoon court subscribed to the majority opinion

in the face of the observation made by Justice Stewart

in concurrence—made also by appellant here—that unions

could cloak Title I violations in terms of eligibility

requirements challengable only under Title IV gives

a compulsion for applyng Calhoon to the facts of

is case.*°

We recognize one exception to the broad mandate of

Calhoon. In Schonfeld v. Penza, 477 F.2d 899 (2d Cir.

1973), plaintiff Schonfeld and fellow union members

attacked a disciplinary decision of a union which removed

Schonfeld from office and declared that he be ineligible

to run for any other union office until June, 1973. Although

the court recognized that the complaints attacked the

deprivation of what appeared to be Title IV rights, it

nevertheless concluded that jurisdiction existed under

§ 102 because plaintiffs had presented the question

“whether the sanctions on Schonfeld in the peculiar con-

text of the history of union fractionalism presented here

impede or infringe upon the free speech and association

jg of union members protected by § 101(a)(2).” Id. at

. But the court also recognized that such a determination

® (Continued)

jurisdiction S an

Penza, 477 F.2d 899 (2d Cir. 1973), discussed infra

10 The legislative history of the LMRDA indicates Congress’ recognition

that the right of candidacy would be enforced in a manner separate

the present Title I of the LMRDA, the uestion arose as to whether

the enumeration of rights in his bill exclude other rights not

listed therein. In response, Senator Cooper noted that the

of candidacy was guaranteed in another section of the bill which

been :

The we FE rion 201 [the precursor to § 401 of the finel

version] . . . guarantees to every member of a union the right to

7a

of whether jurisdiction existed depended upon a close

analysis of the basic thrust of the complaint, and that

one could not obtain jurisdiction by merely alleging the

denial of Title I rights when Title IV rights were essen-

tially involved:

The competing values between Title I rights and

Title ITV procedural requirements are best reconciled,

in our opinion, by limiting initial federal court inter-

vention to cases where union action abridging both

Title I and Title IV can be fairly said, as a result

of established union history or articulated policy, to

be part of a purposeful and deliberate attempt by

union officials to suppress dissent within the union.

Id. at 904. Since the complaint filed by the plaintiffs had

demonstrated a purposeful program of suppressing dis-

sent, and since the “lengthy history of intra-District

warfare” proved that plaintiff had not made “mere

conclusionary allegations,” the court found jurisdiction

under Title I. Jd.

We find that the complaint of Driscoll in the instant

ease, although alleging the denial of Title I rights, is

insufficient to invoke jurisdiction under the rationale

of Schonfeld. The complaint does not allege that the

candidacy requirement is part of a purposeful program

of suppressing any expression of dissent by plaintiff.

Nor does it appear that the eligibility requirement is a

discriminatory, ad hoc device calculated to perpetuating

certain individuals in office. We hold that this ease is not

factually distinguishable from Calhoon or similar to

Schonfeld to establish jurisdiction under Title I.

Driscoll also attempts to avoid the preclusive effect

of Title IV by submitting that he is seeking pre-election

remedies which are enforceable under Title I, and not

post-election remedies which are available only through

the Secretary of Labor." In support of his position he

*! Plaintiff's complaint did not state when the election was to be held,

but the parties stipulated to the fact that it was held from July 13

DETR RE PRE OS ERITS

8a

cites holdings from various cases and dicta from others"

which purportedly support his position. We appreciate

the merits of the arguments for accepting such a distinc-

tion between pre-and post-election remedies, and recognize

that only a limited standard of review is applicable to

post-election suits brought under Title IV by the Secre-

tary of Labor.** But we are bound by Calhoon v. Harvey,

supra, which itself was a pre-election case and which

impliedly required that the election first be held before

any Title IV remedies be made available to the plaintiffs.

See also, Amalgamated Clothing Workers of American

Rank and File Committee v. Amalgamated Clothing

Workers, 473 F.2d 1303, 1306-07 (3d Cir. 1973), Kemp-

thorne v. United Transportation Union, 457 F.2d 551, 553

(7th Cir. 1972); Schonfeld v. Raftery, ........ F. Supp. ........

(S.D.N.Y. 1973), 41 U.S.L.W. 2650, 2651 (June 3, P1973),

Colpo v. Highway Truck Drivers and Helpers, Local 107,

201 F. Supp. 307 (D. Del. 1961) ; vacated as moot, 305 F.2d

363 (3d Cir.), cert. denied, 371 U.S. 890 (1962).

Plaintiff argues finally that the policy considerations

relied upon by the Supreme Court to justify its Calhoon

decision’ do not apply to this case involving sharply-

21 Pt ng ny

yg prayer —_ which one can avoid § 403 by omitting such

algations the wisdom of the district court’s

‘a of such pleadings does not confer jurisdiction.

pach, A ‘nite which have successfully asserted jurisdiction have

— involved arbitrary discrimination ron Re individuals or groups

of members, DePew v. Edmiston, 386 F.2d 710 (3d Cir. 1967), Beckman

Local 46, International Ass’n of Bridge Workers, 314 F.2d 848 (7th

Gir . ees ’ Schonfeld v. oye 335 F.Supp. 846 (S.D.N.Y. 1971), or

tutes expressly authorizing the filing of a particular kind of suit

Yebloneks v. United Mine Workers, 305 F.Supp. 868 (D.D.C. 1969).

In Trbovich v. United Mine Workers, 404 US. 528, 531 (1972), the

oe 2 at wan ee apparently that the only

aT, Gsaiis aa anaes de meeenh te eke OY am Game

existing outside the LMRDA.

13 Section 402 of the act, 29 U.S.C. § 482, provides that the Secretary

shall bring a civil action to set aside an election which he finds

probable cause to believe was tainted by a violation of Title IV. The

court, however, can void an election only if it finds that a violation

of § 401 has occurred and that the violation ‘ ‘may have affected the

outcome of the election.”

14 Calhoon v. Harvey, supra, 379 US. at 140.

LENE TAGE. SER. LOI I ET IT ee

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defined legal free speech issues which are not within

the expertise of the Secretary of Labor. We note only

that Congress has mandated by its enactment of the

LMRDA that the Secretary of Labor act as a clearing

house for any litigation concerning union election policies

and that unions be spared from defending against

unnecessary litigation. Trbovich v. United Mine Workers,

404 U.S. 528, 532 (1972).

We conclude that Driscoll’s complaint does not allege

facts which would confer jurisdiction upon the district

court to adjudicate his claims under § 101(a) (2).

Driscoll has also alleged that the affidavit requirement

is violative of his rights under § 101(a)(1) of the LMRDA

in that it deprives him of equal rights’* and § 101(a) (5)

in that it subjects him to improper disciplinary action."

We find that neither claim confers jurisdiction upon the

district court. In interpreting the equal rights clause of

§ 101(a)(1) in Calhoon v. Harvey, supra, 379 U.S. at 139,

the Supreme Court held that this section requires only

that a qualification on candidacy be imposed equally

upon all members. The affidavit requirement is such a

uniform requirement. Similarly, we do not believe that

Driscoll was necessarily entiled to a hearing before he

was “disciplined” by the denial of the right to run for

office,’’ since, as a practical matter, no hearing was needed

to determine that he did not sign the affidavit. Hurwitz

15 Equal rights—Every member of a labor organization shall have

equal rights and privileges within such organization to nominate

candidates, to vote in elections or referendums of the labor organiza-

tion, to attend membership meetings, and to participate in the

deliberations and voting upon the business of such meetings, subject

to reasonable rules and regulations in such organization’s constitution

and bylaws.

Driscoll’s complaint did not allege in which way the affidavit require-

ment deprived him of his equal right to nominate, vote, attend meetings,

and participate in the business of union meetings under § 101(a) (1).

16 Safeguards against improper disciplinary action—No member of

any labor organization may be fined, suspended, expelled, or other-

wise disciplined except for nonpayment of dues by such organiza-

tion or by any officer thereof unless such member has been (A)

served with written specific ; (B) given a reasonable time

to prepare his defense; (C) afforded a full and fair hearing.

17 Schonfeld v. Penza, 477 F.2d 899, 904 (2d Cir. 1973), Matire v.

Laborers Local 1058, 410 F.2d 32, 35-36 (3d Cir.), cert. denied, 396 US.

903 (1969).

St SAREE ARE

10a

v. Directors Guild of America, 364 F.2d 67, 73 n8 (2d

Cir.), cert. denied, 385 U.S. 971 (1966).

Plaintiff has finally argued that the district court should

have found jurisdiction pursuant to 28 U.S.C. § 1337,

which grants original jurisdiction over any civil action

arising under any Act of Congress regulating commerce.

A personal suit asserting the right to be a candidate

in a union election, however, is not one “arising under

any Act of Congress regulating commerce” within the

meaning of § 1337, since Congress established a separate

basis of jurisdiction for Title IV actions, and Calhoon,

supra, permits only the Secretary of Labor to bring suit

pursuant to the power conferred upon him by § 402. Thus,

if no cavse of action arises under the LMRDA, no juris-

diction lies under 28 U.S.C. § 1337.% Colpo v. Highway

phen Drivers and Helpers, Local 107, supra, 201 F. Supp.

at 314.

II. Jurisdiction Under the United States

Constitution.

Driscoll’s complaint also alleged that the refusal of

defendant Local 138 to allow him to run for office violated

his rights under the first and fifth amendments of the

TInited States Constitution. He asserted jurisdiction for

these allegations under 28 U.S.C. § 1331 and 42 U.S.C.

§ 1983..°° To support his jurisdictional claim he alleged

18For the contrary viewpoint see Serio v. Liss, 300 F.2d 386 (3d Cir.

1961), Postma v. — gy Pe ee Brotherhood of Teamsters Local 294,

229 F. Supp. 655 (N.D.N.Y. a McKeon v. Highway Truck Drivers

and Helpers Local 107, 223 F. Supp. 341 (D.Del. oe find that

these distinguishable for various respectfully

decline to follow them to the extent to which they are inconsistent

1928 U.S.C. § 1331 provides in pertinent part:

(a) The district courts ‘shall have original jurisdiction, of al

ee ee Sais Se ney exceeds the sum

tion, custom, or , of any State or ee es, alee

to be subjected, any citizen of the United States or other person

within the jurisdiction thereof to the deprivation of any rights,

= the an action vis ase

shall liable to party i at law,

~ iy njred na redress.

PERI N e E EE EEE E e PIAP ERIE LTT RARE Ese RSS

a

lla

that the refusal to slate him “was based under color

of statute, particularly, Title 29 U.S.C. Section 481(e).’*°

The district court found no jurisdiction under these sec-

tions, holding that Driscoll had failed to demonstrate

that the essentially private action of the union was so

clothed with governmental authority as to be considered

vero or “federal” action that is governed by the Con-

stitution.

On appeal, Driscoll presents two general lines of analy-

sis to support his contention that the activity of the

defendants in imposing the oath requirement constituted

governmental action contrary to the first and fifth amend-

ments. Driscoll argues initially that the economic power

of unions and their involvement with the government

belie any suggestion that they are voluntary organizations,

and mandate the imposition of constitutional restraints

upon their activities. There is no dispute that unions,

although traditionally regarded as private entities," have

been subjected to extensive governmental regulation and

have been granted various powers by governmental

agencies. But governmental regulation or participation

in some of the affairs of unions does not consequently

make every union activity so imbued with governmental

action that it can be subjected to constitutional retraints.

Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 173 (1972).

To be regulable under constitutional standards through

§ 1331 or § 1983, the very activity of a private entity

which a plaintiff challenges must be supported by state

action, Doe v. Bellin Memorial Hospital, 479 F.2d 756, 761

(7th Cir. 1973), Powe v. Miles, 407 F.2d 73, 81 (2d Cir. ~

20 Plaintiff's complaint alleged no facts showing “state action” to

suport invocation of § 1983; nor does he argue any such facts on appeal.

21 mage unions have bye traditionally regraded as gem

despite imposition regulatory provisions upon merican

Eeleanmeiens dee v. Douds, 339 US. 382, 402 (1950), Oliphant v.

Brotherhood of Locomotive Trainmen and Enginemen, 262 F. 2d 359, 363

(6th Cir. 1958), cert. denied, 359 U.S. 935 (1959). The same view was

expressed during the debates preceding enactment of the LMRDA.

PA ERTIES TR aI OO

12a

1968), that significantly fosters or encourages that activity.

Moose Lodge No. 107 v. Irvis, supra, 407 U.S. at 173, Lucas

v. Wisconsin. Electric Power Co., 466 F.2d 638, 656 (7th

Cir.) (en banc), cert. denied, 409 U.S. 1114 (1973), Todd

v. Joint Apprenticeship Comm., 223 F. Supp. 12, 20 (N.D.

Til. 1963). For Driscoll to prevail in this jurisdictional

claim, he must demonstrate that the governmental activity

significantly encouraged defendants in their promulgation

and enforcement of the anti-Communist oath. Only then

will there be “govermental action” to bring the operation

of the first and fifth amendments into play.

Plaintiff’s second line of analysis suggests two par-

ticular ways in which the federal government is involved

in the activity of the defendants. First, he notes that

defendants relied upon § 401(e) of the LMRDA (29

U.S.C. § 481(e)) as a justification for their imposition

of the affidavit requirement, for they argued that it was

a reasonable qualification for candidacy within the mean-

ing of that statute. Secondly, he argues that the failure

of the Secretary of Labor to institute Title TV proceedings

on his original complaint amounts to an official participa-

tion in the unconstitutional acts of the defendants. Neither

ground shows significant federal encouragement of the

affidavit requirement to trigger constitutional protections.

Tt is apparent that before the enactment of § 401, unions

had the power to exclude whomever they wished from

membership or candidacy for union office ( subject to some

restrictions regarding discrimination on account of race,

eolor, creed, and sex). See, e.g., International Association

of Machinists v. Friedman, 252 F.2d 846 (D.C. Cir. 1958),

Callahan v. Order of Railway Conductors, 169 Wis. 43,

171 N.W. 653 (1919); but see Hurwitz v. Directors’ Guild

of America, Inc., supra, Crossen v. Duffy, 90 Ohio App.

252, 103 N.F.2d 769 (1951). The enactment of § 401(e)

has neither enhanced the union’s power over candidacy

qualifications nor diminished plaintiff’s rights, Lucas v.

Wisconsin Electric Power Co., supra, 466 F.2d at 647;

nor does the failure of Congress to go further

in outlawing all restrictions upon candidacy transform

defendants’ conduct into governmental action. We also

refuse to find that the decision of the Secretary of Labor

not to act under the limited powers given to him under

REBT IETS PERE mp: SEN Utetenunagtn sterner Ne CSaTe

13a

Title IV” established governmental action. As Mr. Justice

Rehnquist recognized in Moose Lodge No. 107 v. Irvis,

supra, 407 U.S. at 175-76 n.3, a regulatory agency must

affirmatively approve or endorse the activity of a private

entity for such activity to become subject to the constitu-

tion. Such is not the case here.” We conclude that the

district court correctly concluded that defendants are not

engaged in governmental action to invoke the operation

of either 29 U.S.C. § 1331 or 42 U.S.C. § 1983.

Our finding that the district court correctly dismissed

this case for want of jurisdiction renders it unnecessary

to pass upon the arguments relating to whether a body

engaging in governmental action or acting under color

22 See note 13, supra. The decision of the Secretary of Labor to

close Driscoll’s case was undoubtedly influenced by his judgment as

to his ability to prove either that the affidavit requirement was an

unreasonable restriction on candidacy under § 401(e) of the LMRDA

or that it may have affected the outcome of the election.

23 different issue would be presented had the defendants im

the affidavit requirement in repsonse to the requirements of § 9(h) of

the Labor Management Relations Act of 1947, 29 U.S.C. § 159(h) (re-

pealed in 1959) and continued it thereafter. The record does not

indicate that this was the case.

Because of our holding concerning lack of jurisdiction under the

LMRDA in section I of this opinion, we do not reach the question

of whether recognition of an anti-Communist oath as a reasonable

restriction upon freedom of speech within the meaning of § 101(a) (2)

would constitute governmental action. This question would arise in two

forms. The first would be whether reliance upon congressional intent

found in legislative history would be any different from reliance upon

an explicit congressional statute for the purposes of finding government

action. The second would be whether judicial declaration of the reason-

ableness of the affidavit requirement would constitute state action;

for the legislative history of § 101(a)(2) indicates that the courts have

the onus of defining and restricting rights under Title I:

Mr. Curtis. Is it true that under the Senator’s (Mr. Kuchel’s)

amendment there are some rights which are not granted equally

to all members of the union?

Mr. Kuchel. That would be true only if one of the courts of

the United States, which was called upon to sit in judgment as to

whether the rights were violated, determined that it was reasonable

on the part of a specific labor organization to make such an excision.

105 Cong. Rec. 6719 (1959). See also Semancik v. United Mine Workers

of America District #5, 466 F.2d 144, 155-56, 156 nil (3d Cir. 1972).

24 Because of our holding, we do not reach the question of whether

Driscoll had to or did meet the $10,000 jurisdictional requirement

imposed by 28 U.S.C. § 1337.

l4a

of federal law could impose the oath involved in this case.

The judgment of the district court is affirmed.

AFFIRMED.

A true Copy:

Teste:

SRE CEE HEE EE SEER EEE ESET SHEE ESET EEOEEES EHO E SEES TEESE EEESESEEEETE SEES TERED

Clerk of the United States Court of

Appeals for the Seventh Circuit.

RP, STS CREE ESTAS ST RR IE NETS TR A LOT TF

15a

Opinion of the United States District Court

for the Eastern District of Wisconsin

UNITED STATES DISTRICT COURT

E. D. Wisconsin

March 23, 1972

Civ. A. No. 70-C-55

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JosePH M. Drisco.t,

Plaintiff,

v.

INTERNATIONAL Union oF OPERATING ENGINEERS,

Locat No. 139,

Defendant,

and

INTERNATIONAL Union oF OPERATING ENGINEERS,

A.F.L.-C.1.0.,

Intervenor-Defendant.

——

OPiNION AND ORDER

Reynotps, Chief Judge.

This is a civil action challenging as incompatible with

the Constitution and statutes of the United States a provi-

sion of the constitution of the International Union of Oper-

ating Engineers, AFL-CIO, which makes candidacy for

local union office contingent upon execution of a non-Com-

ee a ae

_— ee ates et ee Re a Te ote ee pans SCS aly ae aod ITE

16a

munist affidavit. Plaintiff requests a declaratory judgment

and an injunction permanently enjoining defendants from

excluding plaintiff from candidacy because of his refusal

to comply with the non-Communist affidavit requirement.

This matter is presently before me on defendants’ motion

for dismissal for lack of jurisdiction or, alternatively, for

summary judgment.

The faets are undisputed and are as follows. On June

12, 1968, plaintiff Driscoll, a member in good standing of

defendant Local No. 139, was nominated for the office of

treasurer of the Local, Upon being nominated, the union

sent him two documents for his signature—an acceptance

of nomination and a non-Communist affidavit—both of

which were required by the International’s constitution.

Driscoll signed the acceptance of nomination but mailed

back the non-Communist affidavit without signature and

marked with a large question mark.

The Business Manager of Local No. 139, in a letter dated

July 3, 1968, called Driscoll’s attention to the fact that he

would not be eligible to run for office unless he executed the

affidavit by July 8, 1968. On July 5, Driscoll responded that

he had not done so because “the United States Supreme

Court ruled that section of the Labor Law unconstitutional.”

On July 8, Local No. 139’s election committee ruled that

Driscoll was ineligible to run for office because of his failure

to execute a non-Communist affidavit as required by the

International’s constitution.

On July 10, plaintiff was informed of his ineligibility.

‘The next day plaintiff wrote to the General President of the

International Union restating his conviction that execution

of the non-Communist affidavit was unconstitutional and

requesting that the election committee be instructed to place

his name on the ballot. By letter dated July 26, 1968, the

SUP RRE, WRYRS SALES FNRI MS TN AN AAT MT ATI NES HN 2 NR EERO RE SO

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General President responded that he was unable to comply

with Driscoll’s request. Driscoll promptly appealed that

decision to the General Executive Board of the Interna-

tional Union. On January 15, 1969, after several exchanges

of letters, he was offered a personal hearing before a panel

of the General Executive Board. Two months later he was

informed by letter from the General Secretary-Treasurer

of the International Union that the appeal had been denied.

On March 11, 1969, Driscoll filed his complaint with the

United States Department of Labor in accordance with

the provisions of $402 of the Labor Management Report-

ing and Disclosure Act (“LMRDA”). The Labor Depart-

ment processed the complaint and on May 1, 1969, informed

Driscoll that his “complaint to the Secretary of Labor al-

leging violations of Section 401? of the * * * (LMRDA)

1 Section 402 (Title 29 U.S.C. §482(a)):

“(a) A member of a labor organization—

“(1) who has exhausted the remedies available under the

constitution and by-laws of such organization and of any

parent body, * * *

= * * * e

may file a complaint with the Secretary within one calendar

month thereafter alleging the violation of any provision of

section [401] of this title (including violation of the constitu-

tion and bylaws of the labor organization pertaining to the

election and removal of officers). * * *”

2 Section 401(e) (29 U.S.C. §481(e)) :

“(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 reasonable qualifica-

tions uniformly imposed) * * * .”

The provision referred to as section 504 (29 U.S.C. §504) reads

in relevant part as follows:

“(a) No person who is or has been a member of the Com-

munist Party or who has been convicted of, or served any part

SP REBAR HT AER LNCS He ee EOE aero

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* * *” had been investigated, and that it had “been deter-

mined that this case is not suitable for litigation under

Section 402° of the Act.”

The constitution of the International Union (Art. XXIII,

Subdivision 1, Section (b), pp. 83-84) requires the execution

of a non-Communist affidavit by candidates for union office

but does not prescribe the language to be used therein.

This is left to the discretion of the Executive Board of the

Local Union (Art. XXIII, Subdivision 1, Section (d), p

85). Driscoll’s refusal, however, to execute the non-Com-

munist affidavit does not turn upon the particular language

of the affidavit which he was required to sign. That affidavit

has, at any rate, been revised for use in the 1971 elections

of Local No. 139.* Rather plaintiff’s position is that a non-

of a prison term resulting from his conviction of, robbery,

bribery, extortion, embezzlement, grand larceny, burglary,

arson, violation of narcotics law, murder, rape, assault with

intent to kill, assault which inflicts grievous bodily injury, or

a violation of [title II or III of this Act], or conspiracy to

commit any such crimes, shall serve—

“(1) as an officer * * * or other employee * * * of any

labor organization, * * *

during or for five years after the termination of his member-

ship in the Communist Party, or for five years after such

conviction or after the end of such imprisonment. * * * .”

* Section 402 (29 U.S.C. §482(b)):

“(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 * * * to set aside

the invalid election, if any, * * * .”

*The affidavit tendered to Driscoll by Local No. 139 reads as

follows:

“T swear that I am not at the present time or have ever been

a member of the Communist Party or any other subversive

ti ta a a a ee a ee ake eae

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Communist affidavit, regardless of form, violates his statu-

tory and constitutional rights as announced in United

States v. Brown, 381 U.S. 437, 85 S.Ct. 1707, 14 L.Ed.2d 484

(1965).

Plaintiff alleges as the bases for subject matter juris-

diction for this action Title 28 U.S.C. §§ 1331,° 1337,* 1343,"

and Title 29 U.S.C. §412.* I am of the opinion, however,

organization dedicated to or advocating the overthrow of the

Government of the United States.”

The revised affidavit states:

“I swear that I am not a member of the Communist Party

or other organization that advocates the overthrow of the

United States Government by force or violence, knowing of

and sharing in such advocacy and acting pursuant to the teach-

ing that the United States Government should be overthrown

by such means.”

°“(a) The district courts shall have original jurisdiction of all

civil actions * * * [which arise] under the Constitution, laws, or

treaties of the United States.”

* “The district courts shall have original jurisdiction of any civil

action or proceeding arising under any Act of Congress regulating

commerce or protecting trade and commerce against restraints and

monopolies.”

* “The district courts shall have original jurisdiction of any civil

action authorized by law to be commenced by any person:

“(3) To redress the deprivation, under color of any State

law, statute, ordinance, regulation, custom or usage, of any

right, privilege or immunity secured by the Constitution of the

United States or by any Act of Congress providing for equal

rights of citizens or of all persons within the jurisdiction of the

United States ;

“(4) To recover damages or to secure equitable or other

relief under any Act of Congress providing for the protection

of civil rights, including the right to vote.”

*“Any person whose rights secured by the provisions of this sub-

chapter have been infringed by any violation of this subchapter

may bring a civil action in a district court of the United States for

such relief (including injunctions) as may be appropriate. * * *”

20a

that none of these bases are applicable and, accordingly,

that the complaint must be dismissed for lack of jurisdic-

tion.

JURISDICTION BasED ON THE CONSTITUTION

Plaintiff alleges jurisdiction under Title 28 U.S.C. $§ 1331

and 1343 on the basis that this action arises under the Con-

stitution. Defendants have, plaintiff argues, infringed upon

his rights as guaranteed by the First and Fifth Amend-

ments. The First and Fifth Amendments, however, only

protect individual rights from infringement by federal and

(through the Fourteenth Amendment) state governments.

Thus, these amendments cannot be applied to the private

sector except when private action is so clothed with govern-

mental authority as to be considered “state” or “federal.”

Plaintiff’s position is that governmental action may be

found in defendants’ activities because trade unions play

a vital role in the country and because they are subject to

federal regulations. There is, of course, no question but

that unions are subject to federal regulation® or that they

are vital to our nation’s economy; indeed, the latter is the

principal reason for the former.*® But the “question in a

* See, e.g., Title 29 U.S.C.

2° See, e.g., Title 29 U.S.C. §401, the declaration of the findings,

purposes, and policy for the Labor Management Reporting and

Disclosure Act :

“The Congress finds that, in the public interest, it continues

to be the responsibility of the Federal Government to protect

employees’ rights to organize, choose their own representatives,

bargain collectively, and otherwise engage in concerted activi-

ties for their mutual aid or protection; that the relations

between employers and labor organizations and the millions of

workers they represent have a substantial impact on the com

merce of the Nation; and that in order to accomplish the

PD CLAP TA IE EI ET NS PE LA OTR ~ A eEyEY a |

4

21a

case like that before us is not whether any state involve-

ment can be found; manifestly it can. The question is

whether the state involvement that is undeniably present

is involvement of a kind and extent that is ‘significant’ in

terms of present-day state action doctrine.”** Under the

present state of the law I do not believe that a private

organization’s actions may be labeled “state” or “federal”

merely because those actions have a substantial impact on

our economy, an economy grounded upon private enter-

prise by definition and/or merely because Congress, in

order to fulfill its modern day responsibilities under the

commerce clause, finds it necessary to regulate such private

enterprise.* The case at hand is distinguished from that

line of cases finding state action in private activities. De-

fendants “are not engaged in the exercise of any govern-

mental function, nor do they possess or exercise any dele-

gated power of a governmental nature.”** Nor is this a

ease like Seidenberg v. McSorleys’ Old Ale House, Inc.,

317 F.Supp. 593 (S.D.N.Y. 1970), which found state action

in a private business (a tavern) operated by virtue of a

state license and which was the subject of extensive govern-

ment regulation in almost every facet of its operation.

objective of a free flow of commerce it is essential that labor

organizations, employers, and their officials adhere to the high-

est standards of responsibility and ethical conduct in adminis-

tering the affairs of their organizations, particularly as they

affect labor-management relations.”

™ Seidenberg v. McSorleys’ Old Ale House, Inc., 317 F. Supp.

593, 604 (S.D.N.Y. 1970).

#2 Cf. Oliphant v. Brotherhood of Locomotive Firemen and En-

ginemen, 262 F.2d 359 (6th Cir. 1958).

8 Chicago Joint Board, Amalgamated Clothing Workers v. Chi-

eago Tribune Co., 435 F.2d 470, 476 (7th Cir. 1970).

MO BI A ay EN PRL RY OW Sa Re EES a ge a

22a

Finally, it is not argued in the instant case that defendants

are the recipients of either government funds or special

privileges.

JURISDICTION BasED ON THE LMRDA

Plaintiff alleges that the union’s requirement of a non-

Communist affidavit from all candidates for union offices

constitutes a violation of Title I § 101 of the LMRDA in

that the affidavit requirement denies him equal protection,

freedom of speech and assembly, and due process.** It is

* Section 101 (Title 29 U.S.C. §411) reads in pertinent part:

“(a) (1) Equal rights—Every member of a labor organi-

zation shall have equal rights and privileges within such or-

ganization to nominate candidates, to vote in elections or

referendums of the labor organization, to attend membership

meetings, and to participate in the deliberations and voting

upon the business of such meetings, subject to reasonable rules

and regulations in such organization's constitution and bylaws.

“(2) Freedom of speech and assembly.—Every member of

any labor organization shall have the right to meet and

assemble freely with other members; and to express any views,

arguments, or opinions; and to express at meetings of the labor

organization his views, upon candidates in an election of the

labor organization or upon any business properly before the

meeting, subject to the organization’s established and reason-

able rules pertaining to the conduct of meetings: Provided,

That nothing herein shall be construed to impair the right

of a !abor organization to adopt and enforce reasonable rules

as to the responsibility of every member toward the organiza-

tion as an institution and to his refraining from conduct that

would interfere with its performance of its legal or contractual

obligations.

“(5) Safeguards against improper disciplinary action.—No

member of any labor organization may be fined, suspended, ex-

pelled, or otherwise disciplined except for nonpayment of dues

by such organization or by any officer thereof unless such

member has been (A) served with written specific charges;

23a

further alleged that defendants’ affidavit requirement is

imposed pursuant to authority permitted unions under

LMRDA.* Accordingly, it is argued that this court has

jurisdiction under Title 28 U.S.C. §§ 1331, 1337, 1343, and

Title 29 U.S.C. $412. I find that this argument is not

persuasive.

. Congress, when it adopted the LMRDA, chose to incor-

porate into that Act bases for federal court jurisdiction

separate and distinct from those set out in Title 28 U.S.C.

§§ 1331, 1337, and 1343. At least in a case such as this, it

cannot be said that §§ 1331, 1337, and 1343 jurisdiction

arises on the bases of violations of the LMRDA. Rather,

the court must find its grant of jurisdiction within the Act

itself.**

Turning then to the LMRDA, there are two possible

bases for jurisdiction. First, § 102 allows the individual

(B) given a reasonable time to prepare his defense; (C) af-

forded a full and fair hearing.

“(b) Any provision of the constitution and bylaws of any

labor organization which is inconsistent with the provisions

of this section shall be of no force or effect.” (Emphasis added. )

%* Title 29 U.S.C. §481(e) :

“(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 reasonable qualifica-

tions 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 im-

proper interference or reprisal of any kind by such organiza-

tion or any member thereof. * * *”

*® Colpo v. Highway Truck Drivers and Helpers, Local 107, 201

F. Supp. 307 (D. Del. 1961), vacated as moot 305 F.2d 362 (3rd

Cir. 1962), cert. denied 371 U.S. 890, 83 S. Ct. 188, 9 L.Ed.2d 123

(1962).

24a

union member to bring an action in this court seeking re-

dress for violations of § 101; and second, ¢ 402 allows the

Secretary of Labor (and only he) to bring an action for

violation of Title IV rights. (Title IV deals with union

elections and eligibility to be a candidate.) In that the

Secretary of Labor has not brought the instant action, this

court has jurisdiction only if it can be found under § 102.

Plaintiff contends that the court has jurisdiction under

§ 102, arguing that the non-Communist affidavit require-

ment is directly related to rights of free speech guaranteed

under 29 U.S.C. § 411(a) (2) (§ 101) and has effects which

reach far beyond mere eligibility for elective office. That

argument is persuasive. One very similar to it, however,

was rejected by the Supreme Court in Calhoon v. Harvey,

379 U.S. 134, 85 S.Ct. 292, 13 L.Ed.2d 190 (1964). The

Court noted there that jurisdiction under § 102 cannot “be

upheld by reliance in whole or in part on allegations which

in substance charge a breach of Title IV, [union election]

rights” (at p. 138, 85 S.Ct. at p. 295), and held that “possi-

ble violations of Title IV of the Act regarding eligibility

[for union office] are not relevant in determining whether

or not a district court has jurisdiction under § 102 of Title

I of the Act” (at pp. 139-140, 85 S.Ct. at p. 296).

Colpo v. Highway Truck Drivers and Helpers, Local

107, 201 F.Supp. 307, 309 (D.Del.1961), adequately sum-

marizes the jurisdictional problem which is at issue here:

“The plaintiff seeks judicial protection of his as-

serted right to be a candidate. Perusal of Title I satis-

fies the court that nowhere among the rights enumer-

ated therein is the right to be a candidate found. By

its express terms, §102 restricts Federal District

Court jurisdiction to those causes asserted by plaintiffs

EEO ROS LE SIPS. LR IRS EIEIO LOY I I ee ae ae ee se ee = * =

*

25a

whose Title I rights have been violated. Since the

right of candidacy is not afforded by Title I, no remedy

for its violation is available under §102 of the

LMRDA. * * *

“The right of candidacy is derived exclusively from

the provisions of Title IV, § 401(e).* * *”

It is therefore ordered that the defendant’s and the inter-

vening defendant’s motion for dismissal be and it hereby

is granted for want of jurisdiction over the subject matter.

SAREE RES PE IE EI a

26a

Statuiory Provisions

Lasor ManaGEMENT ReEportTinG AND Disciosure Act,

29 U.S.C. §411(a) (2)

(2) Freedom of speech and assembly.—Every mem-

ber of any labor organization shall have the right to

meet and assemble freely with other members; and to

express any views, arguments, or opinions; and to

express at meetings of the labor organization his views

upon candidates in an election of the labor organization

or upon any business properly before the meeting, sub-

ject to the organization’s established and reasonable

rules pertaining to the conduct of meetings: Provided,

That nothing herein shall be construed to impair the

right of a labor organization to adopt and enforce

reasonable rules as to the responsibility of every mem-

ber toward the organization as an institution and to

his refraining from conduct that would interfere with

its performance of its legal or contractual obligations.

Lasor MAanaGEMENT REPORTING AND DiscLosurE ACT,

29 U.S.C. $412

Any person whose rights secured by the provisions

of this subchapter have been infringed by any viola-

tion of this subchapter may bring a civil action in a

district court of the United States for such relief (in-

cluding injunctions) as may be appropriate. Any such

action against a labor organization shall be brought

in the district court of the United States for the district

where the alleged violation occurred, or where the

principal office of such labor organization is located.

27a

Lason ManaGEMENT REPORTING AND DiscLosurE ACT,

29 U.S.C. $481(e)

(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 reasonable qualifications uniformly

imposed) and shall have the right to vote for or other-

wise support the candidate or candidates of his choice,

without being subject to penalty, discipline, or im-

proper 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 the last known home

address. Each member in good standing shall be en-

titled to one vote. No member whose dues have been

withheld by his employer for payment to such organi-

zation pursuant to his voluntary authorization provided

for in a collective bargaining agreement shall be de-

clared 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

designated in the constitution and bylaws or the sec-

retary, if no other official is designated, shall preserve

for one year the ballots and all other records pertaining

to the election. The election shall be conducted in

accordance with the constitution and bylaws of such

organization insofar as they are not inconsistent with

the provisions of this subchapter.

28a

Lasor MANAGEMENT REPORTING AND DiscLosureE Act,

29 U.S.C. §482

(a) A member of a labor organization—

(1) who has exhausted the remedies available

under the constitution and bylaws of such or-

ganization and of any parent body, or

(2) who has invoked such available remedies

without obtaining a final decision within three

calendar months after their invocation,

may file a complaint with the Secretary within one

calendar month thereafter alleging the violation of

any provision of section 481 of this title (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 pending a final decision thereon (as hereinafter

provided) and in the interim the affairs of the organi-

zation 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 vio-

lation of this subchapter has occurred and has not

been remedied, he shall, within sixty days after the

filing of such complaint, bring a civil action against

the labor organization as an entity in the district court

of the United States in which such labor organization

maintains its principal office to set aside the invalid

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

or hearing and vote upon the removal of officers under

29a

the supervision of the Secretary and in accordance

with the provisions of this subchapter and such rules

and regulations as the Secretary may prescribe. The

court shall have power to take such action as it deems

proper to preserve the assets of the labor organization.

(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 481 of this title, or

(2) that the violation of section 481 of this

title may have affected the outcome of an elec-

tion,

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 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 481

of this title, the Secretary shall certify the results

of the vote and the court shall enter a decree declaring

whether such persons have been removed as officers

of the labor organization.

(d) An order directing an election, dismissing a

complaint, or designating elected officers of a labor

organization shall be appealable in the same manner

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

directing an election shall not be stayed pending appeal.

; . JOLLET STE Be hii Sas ga a

3 Z ri RIA he ee a tk a Se a

eR, PAIR EN BORA AS Cae te OT ek Oy ;

30a

Lazsor MANAGEMENT REPORTING AND DiscLosurE ACT,

. 29 U.S.C. $504

(a) No person who is or has been a member of the

Communist Party or who has been convicted of, or

served any part of a prison term resulting from his

conviction of, robbery, bribery, extortion, embezzle-

ment, grand larceny, burglary, arson, violation of nar-

cotics laws, murder, rape, assault with intent to kill,

assault which ‘inflicts grievous bodily injury, or a vio-

lation of subchapter III or IV of this chapter, or con-

spiracy to commit any such crimes, shall serve—

(1) as an officer, director, trustee, member of

any executive board or similar governing body,

business agent, manager, organizer, or other em-

ployee (other than as an employee performing

exclusively clerical or custodial duties) of any

labor organization, or

(2) asa labor relations consultant to a person

engaged in an industry or activity affecting

commerce, or as an officer, director, agent, or

employee (other than as an employee perform-

ing exclusively clerical or custodial duties) of

any group or association of employers dealing

with any labor organization,

during or for five years after the termination of his

membership in the Communist Party, or for five years

after such conviction or after the end of such impris-

onment, ... No labor organization or officer thereof

shall knowingly permit any person to assume or hold

any office or paid position in violation of this subsection.

OO ————————aeOTT

3la

(b) Any person who willfully violates this section

shall be fined not more than $10,000 or imprisoned for

not more than one year, or both.

28 U.S.C. §1331(a)

(a) The district courts shall have original jurisdic-

tion of all civil actions wherein the matter in con-

troversy exceeds the sum or value of $10,000, exclusive

of interest and costs, and arises under the Constitu-

tion, laws, or treaties of the United States.

BARD pate SARA ELLIE OEE LBL LEE ISS OTE LG NDI ENE REE dae