Petition for a Writ of Certiorari — Wirtz v. Glass Bottle Blowers

Supreme Court brief1968

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INDEX

nee - . ere Page

_ Opinions below ------ sini Sica lccibasuiacseheianieceisbancahiivaas 1

. Jurisdiction ...........-. 2-222 one ee nnn enn nnn ee 1

Question presented.....................-..-.-.--------- 2

Statute imvolved__----- manana ee nnnm nnn Sas ae ere we 2

TN a cactnandeenmniatniamionnnal a oe are

Reasons for granting the writ-.--.------------------- 5.

BEE Sctitipeceencanccnemneninencinmsannape - “Ae

Appendix A_-----.------ — iesipesnahasieseeiaiannicainsea disease 13

PER, Bo nse ne keene cuntnecscentionwionn 18

pig, A a a 19

pa | SL ee ee Oe 31

EE Tiitinnicntcccniinnctamineianmnnonaeam annie 33

CITATIONS

Cases: |

Calhoon v. Harvey, 379 eae chasis 11

Wirtz v. Local- Union No. 126, Laborers’ International

Union of North America, ‘AFL-CI O, decided De-

CI TE, BORG ein renin dcoswtcnincmcenetonn << =

Wirtz v. Local Unions Nos. 545..545-A, 545-B, &

545-C, Internatienal Union of Operating Engi-

I SE sO Bi cnctdnectonemnpnccescsingdl 10

. Wirtz v. Local Unions 410, 410A, 410B and 4100, .

International Union of Operating Engineers, 366

fF a eee raae Sh Sane 5,12

Statutes: 4

Labor-Management Reporting | ‘and Disclosure Act

73 Stat. 519, 29 U.S.C. 401 et seq.:

Section 401(b), 29 U.S.C: 481(b)------------ 9, 44

Section 401(e), 29 U.S.C. 481(e)------2----- 2,3, 44

Section 402, 29 U.S.C. 482___-_-._------------ “@

Section 402(a), 29 U.S.C. 482 (a)\ shegeenntlieninian . 9,45

Section 402(b), 29 U.S.C. 482(b)---------- 6, 9, 10, 45

Section 402(c), 29 USC. 482(c).----------- 2, 4, 46

ts)

248-409-671

bat

Statutes—Continued . P .

Labor-Management Reporting and Disclosure Act—

. Continued ct Page

Section 402(da), 29 U.S.C. 482(d) ------------ 46

. Section 403, 29 U.S.C. 483....--,-----+-------- 47

Miscellaneous: !

Bureau of Labor-Management Reports, Summary of

Operations, 1968, p. 11---------<----------""" ‘a /e-

105 Cong. Rec. EB ncnnncaccsces-seensoneno 12

_ &. Rep. No. 187, géth Cong. 1st Sess------- sista 6

U.S. Department of Labor, Summary of Operations,

1964, Labor-Management Reporting and Disclos-

bap Milly B.C ninen teawnnige tne 11°

U.S. Department of Labor, 1965 Summary of Opera-

tions, Labor-Management Reporting and Disclos-

ure Act, p- Lonnie snanntnceetorenns Repairs See: “a 11

P ¢

ene

an the sale Court of ie Guited States

_ OCTOBER TERM; 1966

% No. Paine a

W. WILLARD WIRTZ, SEORETARY OF Labor, PETITIONER

j Vv. Z ¥ f

LocaL 153, GLass Borrir’ BLOWERS ‘assooatiow OF —

THE UNITED STATES: AND CANADA, AFL-CIO

‘

PETITION FOR A WRIT OF CERTIORARI 10 THE UNITED STATES

COURT OF APPEALS FOR THE THIRD CIRCUIT |

The Solicitor General, on behalf of the Secretary of

Labor, petitions for a writ of ‘certiorari to review the

judgment of the United States Court of. eee for

the Third Circuit in this case.

OPINIONS BELOW ‘

‘The opinion of the court of appeals (App. A, pp. -

13-17, infra) is unreported. The opinion and judg-

ment ofthe district court (App. -C, pp. 19-30, infra) -

are reported at 244 F. Supp. 745. The order of the

district court on plaintiff’s motion for post-judgment

relief (App. D, pp. 31-32, infra) is unreported.

JURISDICTION cae

The judgment of the court of appeals (App. B, p. ?

18, snfra) was entered on December 16, 1966. The

(1)

re TOY ae wt nm

‘

jurisdiction of this Court is invoked under 28 U.S.C.

1254(1). pel Rae 7

| QUESTION PRESENTED m4 |

Whether an action by the Secretary of Labor chal- |

lenging a union ‘election under Title IV of the Labor-

management Reporting and Disclosure Act of 1959 is

rendered moot if a subsequent election is held by the

defendant union.’

STATUTE INVOLVED

The relevant provisions of the Labor-Management

Reporting and Disclosure Act of 1959, 73 Stat. 519,

299 U.S.C. 401 et seq., are set forth in Appendix F, |

pp. 44-47, infra. re ; : Ped

; _- STATEMENT * :

The Secretary of Labor ‘instituted this action on g

March 31, 1964, under Section 402 of the Labor-Man-

agement Reporting and Disclosure Act, 29 U.S.C. |

482, reque an order setting aside an election |

conducted by the respondent union on October 18, j

- 1963, and directing that a new election, to be super-

vised by the ‘Secretary, be held. ‘The complaint

specified that the union had violated Section 401(e)

of the Act, 29 U.S.C. 481(e), which directs that

every member of a labor organization subject to. the

Act “he eligible to be a candidate and to hold office

(subject to * * * reasonable qualifications uniformly

imposed) * * * ’’ (p. 44, infra).. It was stipulated

11f certiorari is ‘granted, we also reserve the right to argue

“the question not reached by the court below—i.e., whether the

a ry failed to establish that the violation of the Act “may.

have affected the outcome” of the election within the meaning

of Section 402(c) (2), 29 U.SiC. 482(c) (2).

ALS NG ERIE I

that the union constitution and bylaws required

candidates for union’ office to have attended 75

percent of the monthly union meetings in the two

years prior to the election, that members were not.

excused on account.of illness but only if they were

required to be at work when the union meetings

were held, and that excuses had to be submitted in

writing to the union’s secretary within 72 hours of

the missed meeting. -As a consequence of these re-

quirements, it was stipulated, only 11-members of the

_500-member union were — to run for office in 1963

(R. 3la-33a).’ ;

_ This action was ‘instituted after the Seeretary had

received and investigated a complaint from a union

member who was disqualified as a candidate because

he had attended only 17 of the.24 relevant. monthly

meetings. - Thé minutes of one of the seven meetings

which he missed indicated that the complaining mem-

ber had been hospitalized on the occasion of that

meeting (R. 32a-33a). The union had failed to act

on the member’s internal complaint (R. 29a-30a).

The district court held that the 75 percent attend-

.. ance requirement violated the “reasonable qualifica-

tion” provision of Section 401(e) because 75 percent

was too high a percentage, the. provision governing

*". excuses was too limited and the effect of the rule was

_ too restrictive (pp. 19-29, infra). Notwithstanding

this conclusion, the court denied the relief requested

by the Secretary on the ground that the plaintiff had

failed to establish that the violation “may have af-

:; ae refers be the Appendix to the Secretary's brief in the

court of appeals.

Seen EAS bens - Seg.

fected: the oyome” of the election as required by

. Section 402(c)(2) (p. 46, fra). The court noted

that the complaining member. had voluntarily ‘ab- * .

“sented, himself from other meetings. when he was not

~~,

ill, and held that his failure to qualify was therefore

. attributable to a. factor -other than the ‘unreasonable

requirement (p. 29, .nfra).: It therefore ‘dismissed

'_ the complaint, although it “‘retain[ed ] jurisdiction’”for

further action “in the event that the Secretary shall ~~

have found cause to file a complaint by reason of

alleged violations of the Act of similar character in

‘connection with. the next regularly ensuing election

of officers of defendant union” (p. 30, infra). The

Secretary appealéd from’ the ‘cidade of dismissal.

The union ’s next regular election was held in Octo-

_ ber 1965. On the Secretary’ s motion, the court of

appeals remanded the case to the district court’ for it

‘. to take evidence: concerning that election (R. 44a).

The Secretary submitted to the district court an affi-

dav it ‘stating that the 7 5: percent attendance require-

ment had remaitted i in. effect during the 1965 election ;

that only 2.6 percent of the membership was therefore .

eligible to run for office; that only eight candidates

-ran for the, eight union offices (only one running for

; president and no eandidates being nominated for

three of the offices) ; that: no members were nominated

who were ineligible under the 75: percent rule; and |

that the rule was not waived on behalf of any nominee

(R, 47a+50a). The district court denied the Secre-

-" tary’s motion to have the 1965 election declared in

valid. (pp. 31-32, infra).

_ Relying .on the decision of the Court of Appeals for —

the Second Circuit i in Witte v. Local Unions 410, 410A,

a OE SOS Pe BoB 6 noe

410B & 4100, Foisceuitinel Union of Ogiviting Engi-

neers, 366 F. 2d 438 (App. EK, pp.-33-43, infra), the

court of appeals held that the challenge to the 1963

election was mooted by: -the intervening 1965 election. —

The court also held that it, was proper to deny relief as

to the 1965 election because no ‘complaint had been re-

ceived by the Secretary of Labor with regard to that

election (pp. 15-16, in fra). | .

“REASONS FOR | GRANTING THE WRIT

@ deciding that the intervening union election ren- |

dered the Secretary’s action moot, the court below

misapprehended the nature of the remedy afforded by

Title IV of the Labor-Management Reporting and

Disclosure Act and arvived at a result which would

make the rights protected by that title virtually unen-

forceable. The Second and Sixth Cirenits have re-

cently reached the same conclusion as the court

below;*® and unless this trend of decisions is reversed

the remedial statutory provisions enacted by Congress

in 1959, after substaptial legislative investigation and

debate, will come to whught.

1. The court of appeals committed a Cuibidednsntel

error in reading*the statute; it aecorded to.the Seere-

8 Wirtz v. Local Unions 410, }I10A, 410B & 410€, International

Union of Operating Engineers, 366 F. 2a 438 (C.A. 2), Appendix

_E, pp. 33-48, infra; Wirtz v. Local Union No. 126, Laborers’ In- .

ternational Union of North America, AFL-CIO, decided Decem-

15, 1966 (CA, 6). We are today filing a petition for a

writ of certiorari in the latter case. We are not seeking review

of the Second Circuit decision because that litigation has been

dismissed under the terms of an agreement between the Secre-

tary, and the International Union of Operating Engineers which

incorporates remedial provisions for the future.

- _ Ls -

ESO aGroaie AUEAS. S i ee ee sas i ica eae x a re rere eR ee "

: ae SEER ST

: . . . ®

tary only half the remedial powers conferred upor

him by ‘Section 402(b). The statute ¢p. 46,-infra) —

authorizes the Secretary to: bring a civil action (1) _

“to. set aside the invalid election, if any,’’ and (2): “to.

direct the conduct of an election or hearing and vete

’-wpon the removal of officers under the supervision

of the Secretary and in aecordanee with the pro-

visions of this title and such rules and regulations as

the Secretary may prescribe.’? The court «below

assumed that merely because it would serve no pur- -

‘pose to declare the 1963 election invalid, the Secre-

.tary’s entire action became moot. The statute did

more, however, than merely entitle the Secretary to

maintain actions to invalidate elections; it authorized

him, whenever an invalid election had been held, to ©

obtain a court order directing a remedial supervised

election. That ‘remedy is available and appropriate

“even if the terms of the officers chosen by the invalid —

election have expired.

It is clear from the islisatins history of the Salat

Management Reporting and Disclosure Act that the,

remedial provisions of Title IV were designed to

protect the public interest in democratic labor unions

and not merely to enforce an individual right asserted

by a complaining union member. See S. Rep. No. 187,

86th Cong., Ist Sess. (1959), p . 20.. It was to protect

the public interest along with the right of uriion mem-.

bers. to. free and. fair elections. that Congress author-

ized the Secretary to. bring suit-to invalidate: an: un-

lawful election and to conduct a - supervised’ one.

_ Congress’ purpose: in, adding the supervised election—

which must comply. not-only with: the statute itself but

PEACE Ae MR he at Se

ee as ae

ets erat mee tegen atime ett, Cate

— —

also with “such rules and regulations as the Secre-

tary may prescribe’’—as.a remedy must have been to

undo the possible lasting effects of an invalid and un-—

lawful election. Those effects are not dissipated

merely because the union has held a subsequent

- election. 2 |

The facts of this case demonstrate persuasively .

why .a supervised election is a necessary and: ‘integral

element of the relief provided by. the Act. The Secre-

tary proved on remand that at the union’s 1965 elec-

tiompthe same unreasonable provision of the union’s

bylaws had been in effect-and that, as a consequence,

only. 13 of 500 members were eligible to run for

office. Only 8 candidates actually ran, and no one

who failed to meet the 75 percent: attendance provi- -

sion was even nominated. It is a fair-inference that

the outstanding bylaw was a deterrent’ to_ other

“potential candidates who might have sought to run

if it had been clearly established that thé condition

was impermissible. Indeed, even if the union had —

‘not -actually .applied its unlawful condition of candi-

da¢y, there would have been no way of being certain,

short of'a supervised election, that.the ynion mem-

bers had been adequately notified of the elimination

of the unreasonable attendance requirement. —

An even more basic justification for .a supervised

election, which applies irrespective of whether an un-

Teasonable qualification was imposed during the in-

tervening vote, is the importance of overcoming the °

inherent advantages which the unlawfully elected -

officers enjoy as incumbents. The procedures which

the Secretary utilizes i in conducting a supervised élec-

248-409—67——_2 :

tion are designed to eliminate or minimize such un-

fair advantages. Without supervised elections, those

who have been illegally chosen might perpetuate them-

selves in office through their control of the election

machinery, using techniques which are not demon-

| strably unlawful but which nonetheless favor in-

- eumbents. If no supervised election is éonducted to

break this cycle of control,-a single invalid election

may taint several which follow it.“ ;

The court of appeals was wrong, therefore, in con-

cluding that merely because the allegedly invalid elec-

tion had been. superseded, the Secretary was entitled

to no relief. If, as was alleged in the complaint, the

* The details of a union election are usually: controlled by an

election committee or similar body, and incumbent officers may

be members of the committee. At a supervised election, the’

principal details of the election- procedure are determined by

the Department of Labor's supervisor, in consultation with. all

interested parties at a pre-election conference. Details remain-

ing unsettled after the pre-election conference may be left to a

union election committee, but. the supervisors are instructed that

incumbent officers seeking re-election, as well as other candi- ~

dates for office, are not to serve on the election committee... -

Where the union’s constitution requires incumbent officers to per-

form ‘functions in connection with the election, the supervisors

are’instructed that the incumbent seeking re-election must do so

under ‘supervision and, npon. request, under observation of rep-_

resentatives of rival candidates.

An example-of an eleétion procedure which may affect the

outcome of a close race is placement of the candidates’ names

on the ballot, the first place beirig generally considered prefer-

able. Some unions list candidates in order of nomination. This . —

frequently results in incumberits being listed first because the

incumbent officer who chairs the nomination meeting may rec-

ognize the nominators of his own slate first. The Department

of Labor supervisors are ins.ructed that alphabetical listing on

the ballot, or a listing based on chance, is preferable. -

£9 nS Silden mio

1963 election was unlawfully conducted, a supervised

election should have been ordered. . The fact that

_ the union conducted a regular election in the interim

did not obviate the need for that remedy.

2. If the circimstancés on which the court below

relied are sufficient to render the case moot, very few;

if any, actions brought by the Secretary to effectuate

the voting rights enumerated in Title IV can be pros-

ecuted to a successful conclusion. The Act itself re-

quires unions to hold elections at least once every

three years (29 U.S.C. 481(b)) ; many unions (includ-

a ing respondent) hold-them biannually, and some even

conduct annual elections. The Secretary cannot, un-

der normal circumstances, institute an action i in a dis-

trict court until six months after an election.” In

most cases, a trial is necessary, so that even the dis-

trict court’s judgment may be delayed until. after the

following regular election. And if appeals are -_prose-

cuted, it becomes virtually impossible to terminate the

_ litigation (including action on an application for re-

view by this Court) before the next biannual or even’

triannual union election. This situation obviously |

will be further aggravated if. defendant unions know

that they can moot these lawsuits by delaying the aaa

ceedings until their next election is held.

At the present time there are. 28 actions of this

kind pending i in the district courts; three others have

' 8 The union hae three —- after the invocation of internal

remedies in which to render a final decision. 29 U.S.C. 483 (a).

The union member then has ong month in which to file a com-

plaint with the Secretary. Ibid. The Secretary then has sixty

. days for the administrative investigation which is —

prior to _—? suit. 29 U.S.C. 482(b). |

, uihie recently dismissed as anak» on the authority of .

the decisions in this and- the related cases. Two of

the 28 cases are also subject. to dismissal on the same

. ground, as is one case now pending in a court of ap-

peals. In five other district court’ cases, the union

is scheduled to hold its next regular election during’ |

this year. In all the remaining cases elections are to -

be held in 1968 or 1969, and the prospects for termi-

nating the litigation, including appellate review, be-

fore these elections are held are exceedingly slim.

_- Consequently, the Secretary faces the prospect of

wholesale dismissal of these -law surts before they .

_ reach final judgment. ’

It is no answer to suggest, as the court below and

the Second Circuit have done, that the Seeretary

should obtain temporary injunctions against elections

which might moot such actions. While the Act does

“not explicitly authorize injunctions prohibiting the

holding of union elections, the Court of Appeals ‘for

the Second Circuit has directed the issuance of such an

injunction. Wirtz v. Local Unions Nos. 545, 545-A,

545-B & 545-C, International Union of Operating En-

gineers, 366 F. 2d 435. In any event, by taking such

_astep the Secretary is, in effect, asking a court to main-

tain in office the very union officials whose election he is

- challenging. Congress surely did not contemplate

placing the Secretary in that anomalous position in

order to obtain an adjudication of his challenge to an

election and his demand for a supervised ballot. —

Nor is the polieyof the Act served by encouraging

the Secretary to act in haste. The Secretary is di-

rected by 29 U.S.C. 482(b) to ascertain whether viola-

tions disclosed by his investigation have been remedied.

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He may then bring suit if he does not obtain voluntary

compliance with the terms of the statute.? See Calhoon

v. Harvey, 379 U.S. 134, 140. Settlement efforts fre-

quently take time, and the Secretary may obtain

waivers in order to permit the negotiations to extend.

past the sixty-day period prescribed by the Act for

bringing suit.” The possibility of mootness, however,

would encourage the Secretary to file suit as quickly as

possible, regardless of the effect on settlement efforts.*®

The net effect would, be to postpone, and perhaps to-

frustrate permanently, the correction of undemocratic

_ election procedures which might otherwise be achieved

_ by voluntary compliance.” |

*In fiscal years 1963, 1964 and 1965, an average of 31:com-

plaints per year were ‘disposed of. through voluntary com-

pliance, while an average of 17 suits per year were filed. See |

Bureau of Labor-Management Reports, Summary of Opera-

tions, 1963, at_p. 11; U.S. Department of Labor, Summary of

Operations, 1964, Labor-M anagement Feporting and Dis-

closure Act, at p. 6; U.S. Department of Labor, 1965 Summary

of Operations, Labor-Management Reporting and Disclosure

te Act, at p. 7. ; , ld.

_ "In some cases, the holding of a supervised election is part

of the settlement. Considerable time must be taken in pre-

- paring for the supervised election, during which time the Sec-

retary preserves his right to file a complaint by obtaining

waivers of the limitations defense.

* Settlement efforts may, of course, continue after the filing of

@ suit. “However, the “commencement of. litigation generally

hardens the position of. the parties and makes settlement more

difficult. Before guit is filed, the union may be amenable to

settlement because it wishes to avoid the adverse publicity of

a lawsuit. _ factor, of course, disappears once the suit is _.

_. filed. / :

. «° The district court also erroneously decided’ the question not.

reached by the court .of appeals which we reserve- for argu- .

ment if certiorari is granted’ (note 1, supra). The: standard’

of the statute is satisfied: if it is possibie that the violation af

fected the election. The words “may have ‘affected” were: inr-

CONCLUSION *

For the foregoing reasons, this Petition for a writ of

certiorari should be granted.

Respectfully submitted. | |

: THURGOOD MARSHALL, _

' Solicitor Gengral.

_ BaReEFoot. SANDERS,

Assistant Attorney General.

Anca ~ NatHan Lewy,

Assistant to the Solicitor General.

Awan S8. RoseNTHAL,

ReserT V. ZENER, —

' Attorneys.

CHARLES DONAHUE, ;

Solicitor, ee ve

Epwarp D. FriepMan,

- Deputy Solicitor,

JAMES R. BEARD,

Associate Solicitor,

Department of Labor..

MARCH 1967.

serted in the statute precisely to overcome the very strict prox-

imate-cause, approach adopted by the district court. Senator |

Goldwater analyzed the provision as follows (105 Cong. Rec.

19765) :

thorized the. court to declare an election void only if the

violation of section 401 actually affected the outcome of .

the election rather than may have affected such outcome.,

The difficulty of proving such an actudlity. would be so .

. great as to render the professed remedy practically worth-

less. Minority members in committee secured an amend- .

ment correcting this glaring defect and the amendment

is contained in the conference report. .

The Second Circuit has also disagreed with the result. reached

here by the district court. Wirtz v. Local Unions 410, 410A,

410B & 4100, International Union of Operating Engineers, 366

F. 2d 438, pp. 39-41, infra. .

The Kennedy-Ervin bill (S. 505), as introduced, au- .

A italian site

eh PONE EC LEI ABO ASO

APPENDIX A

[Captior® Omitted]

'- Before McLAvuGHLin, KaLopNer and Hast, Circuit .

am ‘udges 7

OPINION OF THE CouRT

(Filed December 16, 1966) _

By Hastig, Circuit Judge: Section 402(by of the

Labor-Management Reporting-and Disclosure Act-of -

1959, 73 Stat. 519, 534, 29 U.S.C. § 482(b), provides in

part that whenever the Secretary of Labor’s investi-

gation’ ofa. complaint’ made by a member of local

union gives him probable cause to believe that vights to

be a candidate or to vote in an election of union offi-

cers, or to hold union office, as protected by section

401 (b) and (e) of the Act, have been violated, the

Secretary “shall * * * bring a civil action against the

labor organization * * * to set aside the invalid. election

“* *.” This is such an action. _The complaint filed -

-in March, 1964, alleges that, through investigation ofa |

complaint by a union member, the Secretary has found

probable cause to believe that Glass Bottle Blowers

Local. 153 violated section 401 (b)-and (e) of the 1959

~ Act in its 1963 nomination and election of union offi-

cers. The complaint ‘asks for a judgment “declaring

the election held by the defendant union on Octo-

ber 18, 1963, to be null and void’’ and- “directing the

conduet of a new election under the super vision of the:

plaintiff”’. atc _ ~

(13) :

‘

_ After pretrial procedures extending over more than

a year, the case was tried to the district court without

a jury. In August, 1965, the court filed an opinion

and caused judgment.to be entered. dismissing the

complaint. .The court found that ‘the union’s inter:

national constitution and local by-laws unlawfully

restricted the eligibility of members to be candidates ,’

for union office... However, it. also found that the evi-

dence did not establish that this violation “may have

affected the outeome”’ of the 1963 election, a require- —

ment which section 402(c) expressly makes prerequi-

site to the judicial granting of relief.

The Secretary appealed from this judgment. How-

ever, while this appeal was pending; he also sought

and obtained frém this couit an order remanding the.

cause to the district court, without relinquishing ju-

risdiction for the review of the original judgment, for

_ the purpose of entertaining and adjudicating a post-

_ judgment motion for. further relief.

_ Upon remand, the Secretary filed a init Sesion

motion alleging under oath that the union had elected.

new officers on October 12,.1965 under the same re-.

strictions upon eligibility for: office that had been the ~

- subject, of the complaint with reference to the 1963

election and asking that the 1965 election be invali- |

dated and a new election ordered under. the Secre< °

tary’s supervision. The court denied- this motion,

ruling on the merits of the motion “that no candidate.

or candidates for union office were deterred or dis-

qualified from being candidates by reason. of: applica-. ; .

‘tion of said regulations. ” .

The case is-now- before us upon -separate- appeals.

from the origina] judgment and from the order seadee

: ing the post-judgmént.motion. _

We hold that the 1965 election of officers, as dis- —

closed in the post-judgment motion, made the original

[he aI ge i A APGE Yall eclectic PL oe Sag tl Sl .

action challenging the 1963 election moot. This ques-

tion has very. recently. been considered and decided by

; the Court of Appeals for the Second Cireuit. Wirtz

v. Local Unions 410, 410A, 410B, & 4100, Int’l. Union °

of Operating Engineers, 1966, 366 F. 24438. That

court reasoned as follows: ) *, ‘

The exclusive remedy which Congress: has

' created for challenging a union election, see 29 .

U.S.C. § 483, is a suit by the Secretary to de-

clare the election void and to direct the conduct

of a new election * * * )

* * * It would serve no practical purpose

with respect to these locals to declare their 1962

elections void because the terms of office thereby

conferred have expired. And because Title IV

does not permit the Secretary té seek either to

enjoin future elections,“or to declare a given

-candidacy requirement unlawful absent a valid

complaint apd an investigation of its applica-

: tion to a *%pecific election * * * we conclude

} - that we haWé no power to afford the Secretary

relief and therefore that these cases are moot. ’

336 F. 2d.at 442. - gar

To us this reasoning is persuasive ‘and requires no.

elaboration. The Secretary’s original action, based |

upon the 1963 election, is now moot.’ ;

We have also considered the so-called post-judgment +

motion as in substance an amended or supplementary

complaint attacking the 1965 election. However, that —

' new challenge to the 1965 election must fail because

no member ‘of the union has filed with the Secretary

a complaint seeking to invalidate that election.

_ For whatever reasons, Congress, in enacting the en

forcement provisions contained in section 402, did no.

more than to provide an adrhinistrative and judicial

procedure for determining the legality 07. particular ‘

election of local ‘union officers. The only .suit’author-

ized under, seetion 402°is,a suit by the Seeretary to

: 16

-set aside that clovtie’ of which an cestioned unionist

_.has complained: --Wirte v. Local Unions. 410, 410A,

-410B; 4100, Int'l. Union of Operating Engineers,

, «supra; -Wirtz v. fecal: 191, Int’l. Brotherhood of

Teamsters, DD. Conn. 1963, 218 F. Supp. 885, aff’d, 2d

Cir. 1963, 321 F’. 2d 445. Therefore, absent a com-

plaizit bya union member challenging the 1965 elec-

tion, the Secretary had no authority to sue to estab-

lish the invalidity of that election. The denial of the’

” post-judgment motion was proper, although we so.

decide for a reason different from that given by the

| eourt below. oe

While this action must be Mantis we think it ap-

7 propriate to'make the additional observation that it is -

within the power of the Secretary to prevent such a

controversy as was presented by his original com:

laint here from becoming moot. The available rem-

dy, as pointed out by the Court of Appeals for the

Second Circuit, ‘is a proceeding .“to enjoin ‘a union

.... from holding. an-election, or from’ giving effect to

- one already in process, where it is apparent that the °

Secretary is likely to succeed in his claim that the»

election under which the union’s officers are cur-

rently serving was conducted in violation of the re-

quirements of the Labor-Management Reporting and

Disclosure Act: of 1959, 29 U.S.C. § 481, where the

impending balloting is apparently being conducted

_undér substantially similar conditions, where it also

appears ‘that such’ injunction will not cause serious

* injury to the unions concerned, and where the See-

“ns retary is likely to suffer a very real detriment in his .

attempt to.enforce the law if such restraining order

48 not granted’’.: See Wirtz v. Local Unions Nos. 545,

545-A, 545-B and 545-C, Int’l.. Cnion of Operating

Engineers, 2d Cir. 1966, 366 F. 2d 435, 436. The

court directed that the requested injunetion issue.

ce ae

° .

ARB bina - = 0. a Seer

‘17

In addition to granting such relief, we are sure that

this court and the district courts in this circuit will, |

upon request, expedite the hearing and disposition of

eases in which ‘the Secretary challenges the validity

of union elections in order that disruptive disputes:

aver the right and title of union officers may. ing be

unduly protracted... _

- Finally, the Secretary contends that, in alan ‘ah

doresky upon his contention that the, illegal disquali-

fication of candidates “may have affected. the out-—

come’’: of the 1963 election, the district court

misconstrued the statute and treated it as requiring

_ proof that the illegal conduct did in fact. affect the.

- outcome of the election. The mootness of the contro-

‘versy makes it unnecessary to decide that question.

However, we think we should not permit the decision

~ below to stand as a precedent on this contested issue

. which we have declined to review.

‘Accordingly, the judgment on the merits’ of the

principal controversy’ and the order denying post-

judgment relief will both be vacated and the ‘cause ©

remanded with instructions to dismiss the original eom-

plaint as moot and also to dismiss the motion for post-

judgment relief for lack of a prerequisite complaint

by a union member.

A True Copy.

* Teste:

* Clerk of the United States Court of A jee

for the Third Circuit. -

APPENDIX B

[Caption Omitted] . |

Present: cgariumeaey KALODNER and Hast,

a oe ?

JUDGMENT

This cause came on to be heard on the record from

~ the: United States District Court for the Western

_ 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 District Court, filed August 26, 1965, and the

order denying post-judgment relief, filed May 27,

1966, be, and the same are .hereby vacated and the

cause remanded with instructions to dismiss the orig-

inal complaint as moot and also to dismiss the motion.

for post-judgment relief for lack of a ——_ |

complaint by a union member. - :

Attest: ae |

as .Ipa O. Cresxorr, Clerk.

December 16,1966. .- ° -

7 - (18)

APPENDIX C_

_ [Caption Omitted]

' Opinion or Districr Court, Fen Avavusr 26, 1965

Dumbauld, J. — '

The question for decision here is whether a provi-

sion requiring attendance at 75% of the regular meet-

ings of a union for a two-year period since the last pre- -

vious election in order to be eligible-as a candidate for

office in the union is or is not atnong the ‘‘reasonable

qualifications’ permitted by Section 401(e) of the

Labor-Management Reporting and Disclosure Act of

September 14, 1959 (commonly kriown.as the Lan-

drum-Griffin Act),:73 Stat. 5382, 29 U.S.C. 481(e).

> That section provides: ; ; oe

(e).In any election required by this section

which is te be held by secret ballot a reasonable

opportunity shall. be given for the nomination.

of candidates and every member. in good stand-

ing shall be eligible to be.a candidate and to

_ hold office (subject. to section. 504 of this title

and to reasonable qualifications uniformly im-

posed) 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 interferencé or reprisal.

» of any kind by such organization or any mem-

ber thereof —s- yee

‘Italics supplied. Section 504, not pertinerit here, prohibits

holding of union office by Communists or convicts guilty of

certain crimes. Incidentally, section 504 was held unconstitu-

(19)

P BRei eran ig . Scenes z ; s ,

PRET PRE iin ne EE ¢ “i fe Ni il Sse APR iE EAI ThA, ently a

i : .

Section 402, 29 U.S.C. 482, provides enforcement

procedure. Upon investigation of a complaint duly.

filed by a member of a labor organization, the See-

retary of Labor, if he finds probable cause to believe

that a violation of the election provisions of the Act

has 6ecurred and*has not been remedied, may bring a

civil action, against the union as an entity, to set aside

. the election and direct the cohduct of an election

under supervision of the Secretary.

‘If, upon a preponderance of the evidence after a

trial upon the merits, the Court finds that the viola-

tion of Section 401, “may have affected the outeome

_ of an election,” the Court shall declare the election to

be void and direct the conduct of a new election ——

the supervision of the Secretary.

_ It will be noted that the Court, in order to declare

the election void, must find not only the existence of a . i

violation but that the violation may have affected the

outcome of the election. -

The Court is vested. with specific statutory juris-

diction in a proceeding de novo styled a civil action.

This remedy is exclusive. Calhoon v. Harvey, 379.

U.S. 134, 140 (1964).

The. Court j is not exercising the function of judicial heat

* review ofan administrative agency; where the do¢trine

of “primary jurisdiction” would apply, and the scope

of review would ordinarily he limited to the question

of whether there was error or lack of substantial evi-

‘dence to support the agency’s conclusions. Texas ¢&:

Pac. Ry. Co. v¥. Abilene Cotton Oil Co.,-204-U.S8. 426,

442 (1907); Rochester Tel. Corp. v. U.S. 307. US.

tional by the Supreme Court. in U.S. v. Brown, 381 U.S. 437,

449 (1965) as being a bill of attainder (or legislative trial) at

least. as far as Communists aré concerned. Perhaps convicts

can still be excluded from union office [as they can be from the

practice of medicine, Hawker v. New York,.170 U.S. 189, 191,

196 (1898) ], as they. must necessarily have had a judicial trial.

es ea

NG UO ADE CL RP ele nt + sade Pon

125, 139-40 (1939); Universal Camera Corp. v.

_ NLRB, 340 U.S. 474, 477-88 (1951).

‘Here it can in no wise be contended, as Judge

Learned Hand does in the instance of: dus process,

that the courts are usurping power of the same sort

which legislators exercise (though such usurpation is ©

justified in order to prevent frustration of the govern-

mental enterprise). Hand, The Bill of Rights, 29, 39.

(1958). In our situation. the. power of the courts is

expressly delegated by statute, and simply serves to

bring into sharper focus a telescope which has already

been pointed by Congress toward the desired: objective. »

US. v. Curtiss-Wright Corp., 299 U.S. 304, 329°

. (1936).

We are therefore ‘aii to exercise a ae:

mate discretion with respect to the intrinsic. pro-

- priety, wisdom,‘ or expediency of the regulations

‘under consideration when determining their reason-

ableness, and not merely to pass judgment on the is- -

sue of bare power as to whether another agency of

government has: acted ultra vires. -Stated differently,

the distinction may be illustrated by saying that our

function is somewhat comparable to an appeal ‘in >

equity as distinguished froma writ of error, or to a

direct appeal as distinguished from the collateral re-

view permitted under the traditional-or classical writ

of habeas corpus, We must determine for ourselves |

on: the merits the substantive question whether the re-

sult reached is right rather than merely the formal

-question whether someone else had power to pro-

rounce and declare that it was right.

.The By-Laws of defendant Local Union No. 153

of the Glass Bottle Blowers Association provide, in

Article 2, sec. 1 that regular meetings will be held the -

second Thursday of-each month at 8:00 P.M., unless

otherwise directed. Articles 3 and 4 provide that all

offices shall be elected, by secret ballot, for a term of

two years. [This is in conformity with the require-—

} ments of 29 U.S.C. 481(b) J.

Article 4, sec. 12, is the crucial provision in this |

ease. It ordains that: “No members [sic] may be a

candidate unless said member is in good standing and

has attended seventy-five (75%) of the regular local

meetings since the ast local election.”’. This is sup-

plemented by Art. & sée. 13, which provides that: ‘‘In |

cases where members. have to work at the time of '

meetings, and so notify the Recording Secretary, they -

shall be marked present at such meetings, provided

they notify the Secretary in writing within seventy-.

two (72) hours following the meeting.”’

Local 153. has approximately 500 members, of whom

11 (or-2.2 percent) were eligible for office at the chal-

lenged election held on October 18, 1963... The eligible

list of eleven included the names of one Paul Gamber

(“af he attends the next. 2 meetings’’) and of one

John L. Miller (with the notations “Under investiga-

tion’”’ or “Under consideration by International”).

The International on August 8 and 21, 1963, informed

Miller that he was ineligible, by reason of failure to

meet the attendance requirement. Miller had been

Treasurer, and was proposed for nomination as Presi-

dent and as Treasurer at the 1963 election, but held ~

to be disqualified under the By-Laws: Upon Mil-

ler’s complaint, the Secretary of Labor — the in-

stant suit.

By reason of rotation in shifts, 469 ais of

_ the union are required to be at work on the date of

union meetings at least six times during the two-year

- period of eligibility determination. Defendant com-

putes that this means that as to 93. 8% of the mem- -

bers, by virtue of the excusal provisions of Art. 4, Sec.

13, the 75% attendance requirement ‘is reduced to a

en.

seen

93%

50% requirement (Brief, p..3). However, with re-

spect to 31 workers not on rotating shifts, the 75%

requirement, is fully applicable without any abate- .—

ment. * ? . ia ee

In view of the policy of the Act to promote equal

rights amomg union members [29 U.S.C. 411(a)(1)]

and of the terms of Section 401(e) itself, it would-

appear that: the rights of individual members. as such

are at issue, and hence that we must consider the

effect of the challenged By-Law in accordance with

_ its literal terms, and as applied to the minority of

members upon whom it bears hardest. Shelley v.

Kraemer, 334 U.S..1, 22 (1948) ; Lucas v. Colo. Gen.

Assembly, 377 U.S. 713 736-37 (1964). ;

Plaintiff urges in support of its view the follow- .

ing language from Regulations issued by the Secre-

tary issued on December 12, 1959, 29 C.F.R. 452.7(b) :

(b) The question of whether a. qualification

is reasonable is a matter which is not suscep-

tible to precise definition and in the last anal-

. ysis will be determined by the courts. Under

certain circumstances a prerequisite for such -

candidacy may on its face appear to be reason-

able, but this would not be controlling if, as a.

y matter of fact, the effect of its application

g would be unreasonable and inharmonious with

7 the intent of the Act’s election provisions. For

* example, a requirement that to be eligible to

be a. candidate for office an individual must

"have been a “member in good standing” for

a prescribed period of time, such as two or

three years, would not be, in. many instances, an

‘unreasonable qualification. However, should

the actual effect of such qualification in a par-

ticular case be to disqualify from holding office

' all but a handful of: the labor organization’s

.:. . ‘Members, its reasonableness would be subject

to serious question.

248-409—@7—_4 |

re + &

As plaintiff contends, the views of the Secretary

are of great weight. Not only does this Court have

great respect for the Secretary, but this Court agrees

100% with-every word that.is said in. the quoted

passage. The trouble is that all that is said is that

-. the question of ‘reasonableness is a difficult. one and

must ultimately be decided by the courts in the light

of the facts in particular cases. We agree.

Defendant argues that the test of reasonableness

here is the same as that when the constitutionality of

legislation is challenged under the due process clause:

in other words, that the ‘‘rational basis” ‘rule applies. ,

. That is to say, ‘the By-Law as adopted by the union

must be upheld if a reasonable mind would have a

good reason for adopting it. It must be upheld if.

it-is rationally relevant to a legitimate regulatory

‘purpose. As stated by Chief Justice Warren in Boll-

ing v. Sharpe, 347 U.S. 497, 499-500 (1954): ‘‘Lib-

'. erty under law extends to the full range of conduct

' which the individual is free to pursue, and it cannot -

be restricted except for a proper governmental ob-

jective.”” A court does not-act as a ‘‘superlegisla-

ture” to. weigh the wisdom of regulations. Day-

pis pe Lighting Inc. v. Missouri, 342 U.S. 421, 423,

427 €1952); Ferguson v. Skrupa, 372 US. - 726, 129-

32 (1963).

. It is then argued that such a foul reason is to en-

courage participation in union affairs and attendance

at meetings in order to beconte familiar with the .

workings of the organization before undertaking to

' gerve as aunion officer.

Another - analogous. sijuation in which courts ‘pass

on ‘‘reasonableness” ‘fs in Antitrust cases. Here,

however, the insertion of that standard into the legis-

lation as enacted by Congress is a pure judicial crea-

tion devised first by Mr. Chief Justice. White in

Standard Oil Co. v. U.S:, 221 1, 60, 63-67 (1911).

More to the point is the analogy to the function of |

the Interstate‘ Commerce Commission, and similar

regulatory agencies, in establishing “‘just and reason-

able’’ rates. 49 U.S.C. 15. In other words, Congress

itself enacts a nonspecific standard, the application of

which to specific situations is entrusted to the judicial

process of inclusion and exclusion. 9 aa

The Court therefore in a particular case must: not

only consider the existence vel non of a scintilla of

rational ‘support for the rule put forth, but must (by

a process similar to that prescribed in the Universal

Camera case). take into consideration the entire situ-

ation presented by the record, and give due weight to

every aspect of the facts established. In other words,

the Court must also inquire whether the legitimate

purpose soyght to be achieved could be attained in a

manner less destructive of other legally protected in- .

terests. Schneider v. Irvington,.308 U.S. 147, 162

(1939); Henry v. Mississippi, 379:U.S. 443, 447-49

one! -- We note that there may be a fairly exten-

sive ‘‘zone of reasonableness” and_ that comparison

‘with comparable practices may be a standard for de-

termining reasonableness. Georgia v. P.R.R. Co., 324

. U.S. 489, 460-61 (1945); Youngstown Sheet & Tube

Co. v. U.S., 295 U.S. 476, 480 (1935).

‘Moreover, the determination must seek to give effect

to the policies of the Act. Reasonableness is not to be

assessed im vacuo, but in the light of the purposes

which the Congress sought to achieve and the evils

which it sought to eliminate. Union democracy, effec-

_ tive self-government, abolition of oligarchical cliques

and self-serving union officers were in the forefront of

Congressional thinking. Section 401 itself seeks to

open the path of eligibility to office to all union mem- |

bers. in good standing, except where restrictions of .

reasonable character, and uniformly imposed, may be

A appropriate. Mamula v. Steelworkers,.304 F.2d. 108, ;

110-111 (1962) ; 86th Cong. Ist Sess. S. Rep. No. 187,

p. 20, appearing at p. 16 of Vol. 1 of Legislative His-

tory of the Act, published by the NLRB, Washington, _

‘1959. It must also be remembered that restrictions on

| eligibility. also constitute a’ corresponding restriction

on thé right of choice by other members. Fogle v.

Steelworkers, 230 F. Supp. 797, 798 (W.D. Pa: 1964).

Plaintiff argues that the 75% requirement has. no

rational relation to any legitimate labor union pbjec- -

tive. This contention in its broad form is obviously

untenable, as it is a very proper objective to encour-

age attendance at union meetings, and to require office

holders to have acquired a sufficient familiarity with

union affairs to be properly qualified to discharge

‘ their trusts effectively and in keeping~with the senti-

ments of the membership. Past conduct is often a

proper test of future fitness. [See cases collected in.

Constitution of the United States

* Dumbauld, Th

(1964) 199-200. |

Plaintiff. stands on more solid ground in arguing

that the requirement goes too fary This contention is

‘three-pronged : (1) 75% is too high a percentage; (2)

the provision for excuses is too rigid, being limited

- only to work on the job during’ meetings ; ; (3), the

effect of the rule as applied here results in ‘“‘only a

handful’’ of eligibles (2:2% of membership qualified).

' To-select a particular percentage of attendance as

being reasonable and hence permissible is akin to the

task of determining what percentage of market con-

trol is neeessary to establish the existence of a monop-

oly. On this issue a revered Judge, Learned Hand,

once said ‘‘it is doubtful whether sixty or, sixty-four

“percent would be enoug and certainly thirty-three

7 not.”” Ninety was enough, howéver. U.S.

‘

« .

oe - -

v. Aluininum Co. of America, 146 F 2d- 416, 424 :

(C.C.A. 2; 1945). We conclude that 75 is too high a

percentage when combined with the sa rule regard-

. ing excuses. © tas tee at" -

‘To be reasonable a rule must give appr medal rec-

‘ ognition to human nature and the normal needs of a

workman in his everyday life. Union members can

not be expected to devote undeviating attention to—

‘ unilor business, to the neglect of their health, family .

obligations, vacations and the usual pleasures . and.

vicissitudes of life." They do not form a military com-

munityor a religious order, separated from the world

at large.

A rule which limits the eligible gr oup to 2. 2% of

the wu ire ship.seems to be too harsh. The only

judicial precedent. cited hy counsel is John C. Martin ;

v. Boilermakers, W.D. Pa., Civil No. 969 Erie, where

‘on June 26, 1963, my ‘eateemed colleague Judge Will-

son upheld the. reasonableness of the eligibility re-

quirements of that union’s constitution. However,

the requirement there. was only one meeting out of

‘each quarter of the. calendar year and the quarter

immediately préceding nominations. Moreover, the

provision for excuses was liberal: it recognized “per-_

~ sonal illness, senor or District or Local Lodge ©

duties, regular‘employment or some other unavoidable

situation.” Thére 14 members out of a total of 175

were found to be qualified (a figure in excess of 10%

of the membership).

‘Under .these cireumstances, J udge Willson said

(and I agree) : ;

_—

Plaintiff, ‘however, seems to tide a blank

charge - that the amendment requiring the at-

tendance at one meeting during’each of the five:

_ quarters to become. eligible to hold office is, per

“ se,*an unreasonable regulation. However, this

-eontention, if seriously made, .is rejected. be-

“

ys:

rns a se - oinnepeninn - wn

28.

cause it seems very clear to the court that the

‘regulation is reasonable. Certainly . there is.

c nothing illegal about it; not [sic] does it appear ~

.. | burdensome. The rule is almost the mimimum

- attendance vequirement.- It simply requires “Wy

: _ that a member attend one meeting in each three

- month period. But, it is to be noticed that he

_may be excused from that by illness or if his

; “work interferes. The language which justifies

a aes no attendance is broad. “It-says: “and (d)

i ~ have attended at least one (1). meeting out of

each quarter of the calendar year and the quar- ~

rs ter immediately preceditig nominations for office

; aan unless prevented by personal illness, Interna-

tional or District or Local Lodge duties, reg-

.. ae: employment or some.. other unavoidable

situation.” (Article XXVIII, p. 111.) To

hold that sueh a. regulation is whreasonable

-would hold in effect that there can he no attend-.

nee requirement whatever in, this union. I .

find-the regulations as adopted at the Interna-.

tional, Convention to be reasonable in’ all. -

. respects.

In order for there to he a real choice in the selec-

tién of officers, a system of screening ought to pro-

-duce as eligibles at least twice the number of officers -

to be elected. Out of the air, I should take 10 per-—

cent of the member ship as the minimum number from

which nominations and elections are to be made

Art. 3, sec. 1, of defendant’s By-Laws, provides for

the’eleetion of ten officers. The eligible list included

_. only eleven. names (including Gamber and Miller,

. thus ultimately nine or ten). This did not give the

members a chance to choose between two full slates.

In fact there were no candidates for four offices, and

the present incumbents thereof are serving by ap-

pointment to fill vacancies, in apparent violation of —

-.:

sre 3, sée. 8, which calls for. a special sialon’ from -

eligible candidates. But ‘the paucity of eligible can-

didates would result in impossibility of performance

if the procedure of Art. 3, sec. 8, were adhered -to..

‘The majority of the members preferred to avoid the

expense of a special election and International repre-

sentative. Bonus recommended that the appointed

officers continue to serve as “those members appointed

will cooperate with us, if necessary, at ayes.

Stipulation, Ex. D, E, and G. \

Considering the combined effect of the three objec-

tions urged by plaintiff, we conclude that: the re-

quirements imposed by the By-Laws are not “reason-

able qualifications” within the meaning of Section

A401(e). ) 1 9

_ That is not the end of the matter, however. To

direct a new election the Court must find that the

. Wolation of Section 401(e) “may have effected the

outcome of an election.’? As was true in Wirtz v.

Hod Cariers, 211 F. Supp. 408, 413 (W.D. Pa. 1962),

' this factor of causation has not been a

éstablished.

. The evidence shows that complainant Miller volun-

tarily absented himself from meetings on occasions

not, justified by sickness or other unavoidable emer- -

gency, and thus his failure to qualify was not due to

the existence of the unreasonable requirements of the

By-Laws but to his own voluntary ccivinn couaceall to ©

comply theréwith. |

Hence it seems inadvisable to decree the holding

ofa new élection.. It will be preferable to await ap-.

propriate action enabling the next. election to be held —

_ In full conformity with the seal as —

expounded.

Each case is remanded ‘with instructions to ‘vacate

its dismissal on the merits and to dismiss each com-

plaint as moot.

ArtHuR 8. Onick, Assistant United States Attor-

. néy, Southern ‘District of New York (Robert M.

. —Morgenthau, United States Attorney and Robert E.

si Kushner, Assistant United States Attarney, Southern

District of New York and Justin J. Mahoney, United

States Attorney, ‘Northern District of New. York,

-_ on the brief), for plaintiff-appellant. :

Carrigan & King and Nathan H. Blitman, on the

brief), for defendant-appellee Local Unions. 410,

410A, 410B, and 410C, International Union of Operat-

ing Engineers.

-Wiwu1aMm J. CoRcORAN, New York, N. y. , for defend-

—ant-respondent Local 30, I: International Union. Ba Op-

| erating Engineers.

LuMBaRD, Chief Judge: Theserare two separate suits

brought by. the Secretary of Labor against locals of

the International Union of Operating Engineers

(IUOE)- to set aside -1962 union elections on the

_ ground that provisions of the IUOE’s constitution,

as adopted and applied by the locals, violated § 401 (3

of the Labor Management Reporting and Disclosure

Act of 1959, 29 U.S.C. § 481(e),-by depriving union’

members of a ‘‘reasonablé opportunity” to be candi- .

dates for union office. Both district courts * held that. *

the Secretary had failed, to prove that any violations .

of the Act “may have. affected the outcome” of the

eleetions in ‘question. 29 U.S.C. § 482(c)(2). Each

*The Local: 30 case was decided by the United States District

_ Court for the Southern District of New York, 242 F. Supp. 631 -

(1965). The Zocal 410 case was decided by ‘the United States:

‘ District Court for the Northern District of New York, 61

_LRRM 2396 (1966).. _¢

— .

— a _ setae selena inint Die Lio ik wee tees 5 D- twnrndb i ase

_ Bernarp T. KIna, Syracuse, New York Bisa: 2

ee ee eee ne

ee ” -35 oe

_ | - loeal/conducted-an election in 1965. subsequent to the

i district court decision in its favor. As we hold that

_ this fact has made both appeals moot, the two cases.

will be treated together .in this opinion. Each’ case-

is remanded with instructions to the district court to

vaeate its FOE on the merits“amdto dismiss the

' aoe complaint as moot, . .

ies ty

Local 30 is‘a union of licensed Stationary Engi- |

neers (those in charge of boilers, engines, pumps and:

refrigeration equipmenf in industrial plants) loeated —

in New York City and affiliated with IUOK, Local.

7 410, located in. Binghamton, New York, is an IUOR

A affiliate composed of journeymen engineers who oper-

; ate power cranes, shovels and similar heavy equip- —

ment.. oy ap ipa ad

Affiliated locals must adopt ‘the provisions of

- IUOE’s constitution pertaining to the eligibility of

union members for union office. The ‘constitutional

ie . qualifications which prospective candidates must pos-’

Sess ‘include the following: ;

(a) “Continuous good standing” for one year, ie.,

‘payment of union dues on or before the first day: of

each month of the entire year preceding the election.

(a) The filing of a “‘declaration of candidaey”’ on

or béfore January 15th of the election year.

(d) Attendance gt a majority of the regular meet: ..

. ings held between his declaration of candidacy and |

the election: date.? Yared

. After Local 30 and Local 410 held elections in.1962.

in which incumbent officers. and “‘close ‘associates’’

were elected without opposition, union members who. °

| | |

| — * Article XXIII, Subdivision 1, Section: (b). The filing date.

was changed to March 15 in 1964. |

“oe .

§482(b). RARE = .

_ The complaint against Local 410 charged that: its

“continuous good standing’’ rule was not.a‘reason- °

able qualification uniformly imposed,”’ 29 U.S.C. § 481

(e), and hence that members of the local had been

_ deprived éf their night to seek office. - The complaint |

_ against Local 30: charged that its “declaration of ean-

Act. :

ae, 3

had been rejected as candidates because of their fail-

ure to comply.with the above requirements lodged’

complaints with their respective locals and, when their

IUOE yemedies were -éxhausted unsuccessfully, pro-

tested. to the Secretary that they had been illegally:

deprived of their right to stand for s office. These

ee EE Ee SO en a YB

complaints being timely, see 29 U.S.C. §482(a) (1), . |

the Secretary investigated’ the challenged - elections

: and brought these suits to have them set aside and

conducted again under his supervision. « 29 U.S.C:

didagy’’ rule: was. likewise unreasonable and in addi-

_tion;that Local 30 had failed to give its rhembers

adequate notice of the 1962 election so that prospective

. candidates might comply with this rule. Judge Metz-

ner agreed that the declaration. of candidacy rule

violated §481(e) but held that the Secretary had

failed to prove ‘that enforcement of that rule may

have affected the outcome of’ Local 30’s election. :

Judge Port also dismissed the complaint against -bo-

cal, 410 on this ground; he assumed without deciding -

that. the continuous good standing rule violated the

Shortly after. the decisions of the ‘district courts,

both ‘locals held 1965 elections in accordance with the:

IUOE constitution and: the LMRDA’s requirement

that elections be held at least triennially. 29 U.S.C.

§ 481(b).~ Thus, the present officers of each local are

not holding office pursuant to the challenged 1962

elections. We conclude that, in light of the statutory

Boge

PRIOR RE de ot aE WOR pean fon . he!

staan

se’

Scheme in question, these subsequent elections render.

both cases moot. .

inion election, see 29 U.S.C. § 483,

ry to declare the election void

In these two cases, the Secretary has no standing to

- attack the 1965 elections since no member of Local 30

. pose with respect fo these locals to declare their 1962 »

elections void because the terms of office théreby con- ;

ferred have expired. . And because Title IV does not

permit the Secretary to seek either to enjoin, future

elections, or to-declare a given’ candidacy requirement

unlawful absent a valid complaint and an investiga-.

tion of -its application to a specific. election, ef. Cal-

~~.

hae ake QUDGMENT pret ge ae

+ AND Now, this 26th day of August, .1969, after trial

and hearing argument of counsel and receipt of briefs,, _

for the reasons set forth in the foregoing opinion.

--J¢ Is ADJUDGED, DECREED, AND FINALLY DETERMINED

that the action herein be and the same hereby is. dis-

missed, the Court retaining jurisdiction of the cause

for such further action, if any, as may be required:

in the event that the Secretary shal¥ have found cause

to file complaint by reason of alleged violations of -

the Act of similar character—in. connection with. the ;

next regularly ensuing election of officers of defendant |

union. alee

(S) DuMBAULD,

United States District J udge.

t sae i aacceal ine

APPENDIX D

[Caption Omitted]

OrpER oF Court

AND Now, this 27th day of May, 1966, upon con- .

- sideration of plaintiff’s motion for post-judgment re-

lief, after hearing. and argument, and it appearing

that the purpose of the language in this Court’s judg- _

ment of: August 26, 1965, ‘‘retaining jurisdiction of .-

_ the cause for such further action, if any, as may be

_ required in the event that the Secretary shall have

ann .

found cause to file a complaint, by reason of alleged

violations of the Act of similar character in connec-

tion with the next regularly ensuing election of of-

ficers of defendant union” was to expedite and ac-

celerate the remedying of such future complaints as

‘might arise out of future grievances involving alleged

violations of the Act of similar character to those

passed upon in said opinion; and the Court being-now

of opinion’ that perhaps the inclusion of said language

was improvident as perhaps being, inconsistent with.

the statutory scheme established for dealing with and

remedying such grievances or vioiations, but’ the.

Court being of opinion that in any event the action -

which‘ plaintiff now seeks would not fall within the >

terms of such language; and the Court further being

of opinion that in the election of October 12, 1965,

with respect to which plaintiff is now seeking relief,

the- regulations condemned by this Court’s opinion of |

_ August 26, 1965, have not been demonstrated to have

affected in any respect the outcome of the election, and

(31) i

“2?

~ that indeed such regulations did not come into play at all

as there was nothing upon whichthey could operate, and

that no candidates for union office were deterred or dis-

qualifiec from being candidates by Treason. of applica- :

tion of ‘said regulations (see par. 9 of affidavit of

Frank M. Kleiler, submitted in supporf of plaintiff's

motion) ; and, the CHurt being satisfied by the state- -

mevts and assurances of defendants’ counsel at: the:

hearing’ of May 26, 1966, that defendants in good

~ faith and with due diligence are taking appropriate

steps with all convenient. speed to: reform and amend

the regulations governing elections so as to bring:

them into conformity with the views expressed in this

Court’s opinion of August 96, 1965; and, the Court

being of opinion that. the period between August 26,

1965, the date of this Court’s opinion, and October 12,

1965, the date of the subsequent election with respect

to which plaintiff now, seeks relief, was not sufficient:

time inv which to effeet in due course the reforms re-

quired in-order to bring about- eonfermity—with- the

views expressed. in this Court’s said opinion of August °

26, 1965; and the Court further being of opinion that

= hefore disrupting the existing election procedure, or

the results thereof, as plaintiff now seeks, because of”

want of conformity unto the views expressed in this.

Court’s said opinion of August 26, 1969, defendants.

‘are entitled to await the outcome of the appeal now

pending from this Court’s judgment embodying said -

views, in order to be assured that said’ views are sound

and acceptable legal doctrine and that the steps being

taken by defendants to effect conformity therewith

“ill not prove to have been @ vain, transitory, need-

_ Jess and unfruitful burden, ke

; "Tp 1s ORDERED that the relief prayed for in said motion —

- be and the same hereby is denied. on.

| oe | : (S) DumBavLp,

‘United. States District Judge.

on 55 Pir TTS TERN I vemerensere meperniereina camera ssn mene

; wv OPS DNTP are oe ty meee me ae

5 eee Cee Nee tab ie Ol A &

* . q

Oa eee | APPENDIX E

United States Court of Appeals for the Seeond

. Cirenit

Nos, 337 and 338—September Term, 1965. :

(Argued May 11, 1966 Decided August 1, 1966)

Docket Nos. 29998 and 30085 |

W.. Win.arp Wirtz, SECRETARY -.OF Lagor, UNITED -

STATES: DEPARTMENT OF LABOR, PLAINTIFF-APPELLANT |

Locat Unions 410, 410A, 410B, & 410C, InvERNa--

TIONAT, UNION OF OPERATING ENGINEERS, DEFENDANT- _

RESPONDENT

W. WInnarp Wirz, SECRETARY OF * ,ABOR, UNITED

~ STATES DEPARTMENT OF LABOR, PLAIN TIFF-APPELLANT

Vv. -~

Locat 30, INTERNATIONAL, UNION OF OPERATING

ENGINEERS, DEFENDANT-RESPONDENT

‘Before LumsBarp, Chief Judge; Waterman and

- KaurMan, Circuit Judges.

Appeals from judgments of the United States Dis-

trict Court for the Northern District of New York,

Edmund Port, J., and the United States District Court

for the Southern District of New York, Charles M.

. Metzner, J., dismissing suits brought by the Secretary

of Labor alleging violations of the: Labor Management

Reporting ard Disclosure Act of 1959, 29 U.S.C. 9...

§ 481(e), for failing to prove the alleged violations. ;

may have’affected the outcome.of the union elections.

(33)

= . . ‘

‘ . .

7 iatenees Aa CS ee Ss = pueda Na RAL anthem ge ne Si

* n EN oe

ames To : ‘ 7

—*. @ . ~ - »

mt ‘ :

: .

; hoon v. Harvey supra, we conclude that we have no

~ oe _ power to afford the Secretary relief and therefore

.. that these cases are moot. Ps ea j

' When an appeal becomes moot becatise of eireuni-

.” .,8tances ‘occurring after the decision of the’ district -

court, the appellate court may dismiss the .appeal,.or

_ “it may, vaeate-the judgment of the district court with

_,» instruetions that the complaint: be dismissed as moot.

See Cover v. Schwartz, 133 F. 2a 541, 546 (2 Cir.

1942), cert. denied, 319 U.S. 748 (1943). Upon ‘this

". decision may turn the future vres- judicata effects of

the district court’s judgment. See United States v.

Munsingwear, 340 U.S. 36. (1950). In order. to de- _-

termine the correct disposition and because the -ad- - |

verse nature of the decisions on the merits by the — -

district courts may serve to deter similar. suits, we |

‘proceed to consider the merits. That.examinatio,, per- -

- Suades us that the judgnients beléw should be vacated.

In the Local 30 case, ‘the. evidence established that ;

the candidacy of William Neville, a union member for-

> _, 1958 and 1960, was.rejected on the ground that-he had

4 ‘not filed a timely: declaration of candidacy. .In the »

‘a 1962 eleetion that followed, only the incumbent Officers

_ | ~ appeared on the ballot.. Only 607 of the union’s 3,000. >

~~. members voted, roughly one-half the number that had-

-. Woted in ‘the contested elections of 1958 and 1960. .

_ - In the Loca] 410 ease, eleven members who had filed

timely declarations of candidacy were declared ineli- |

ray gible for office because they failed. to. meet the contin-

' uous good standing ‘rule. One of these eleven was a

‘proven vote-getter who had been elected’ conductor

_. *. and trustee in 1958 but was not an incumbent in 1962.

a _. for nomination and election in 1962; and only 216 out

“Ss

ve ae

_ of almost 600 uriion members voted in the uneontested.

election. Koncac ese ; oh | |

ON evertheléss, both district courts held that the Sec-

retary failed to prove that the exclusion of these mem-

_ bers from the ballots “may have affected the outeome”’

_ of the election, § 482(¢) (2), beeause there was no in-

_ dication that persons other than those actually elected —

' might have prévailed had the alleged violations of

— § 481(e) not oceurred. .We think that this is too re-

_ Strictive.a view of the burden Congress "intended

through §482(c)(2) to place upon the Secretary in.

_ Title IV suits to upset union elections. |

_ | arly drafts of the LMRDA would have required '

'. proof that a: violation of Title IV “‘affeeted the out-

come of the election.”’ The Senate altered this pro-

vision by addfng the words “may have’’ with the ex-<

press intent of reducing the Secretary’s burden and

"thus of. facilitating enforeement of Title IV! We

think this intent and the natural meaning of the pro-

viso are served if the-Secretary is required only to

prove the existence of a reasonable probability that.

the election may have been “affected” by an alleged

Violation of §481(e).- ~ ; .

The proviso‘was intended to free unions from the

disruptive effeet of a voided election unless there is a

meaningful relation between a violation of the Act and

results of a particular election. For example, if the

es rms — :

: | a : 39

_ | t

x |

. 2

* See Senator Goldwater's remarks upon the change. “The

‘Kennedy-Ervin bill * .* * as introduced, authorized the court

to declare an election void enly if the violation of section 401

actually affected the outcome of the election rather than may —

have affected such outcome. The difficulty of proving such an *

_ actuality would be so great as to render the professed remedy —

practically worthless.” Legislative History of the Labor Man- :

agement Reporting & Disclosure Act ‘of 1959, at 1851 (U.S.

Government ‘Printing Office, 1959). See also the House Con-

ference Report. on H.R. No. 1147 and S. 1555, id. at 939.

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

v. Local 11, International Hod Carriers, 211 EF. Supp.

408 (W.D. Pa. 1962). But in the cases at bar, the

alleged violations caused the exclusion of willing can-

didates. from the ballots. In such circumstances, there

can be no tangible evidence available of the effect of

this exclusion -on the. election; whether the- outcome.

would have been different’ depends upon whether

the suppressed candidates were potent vote-getters,

~ whether more union members would. have voted had

candidates not been suppressed, and so forth. ‘ Since

any proof relating to effect on outcome must neces- .

sarily be speculative, we do not think Congress meant .

to place as stringent a burden on the Secretary as the

district courts imposed here.

In holding that. § 482(¢) (2) had not been. satisfied, °

the district courts relied on a dictum in the concurring

opinion of Mr. Justice Stewart in Calhoon v. Harvey,

379 U.S.-at 146 n. 7, to the effect that relief may only

be had in Title IV suits when the complaining in-

surgent faction “approaches majority .status.”* This

would surely be true in the ballot tampering example

outlined above. -But to apply this standard in exclu-

sion of candidate cases would require reliance on

“relatively inconclusive factors such.as* the excluded

candidate’s performance in previous years. In these’

ceases, there was evidence that the excluded candidates

were politically active union members one of whom.

had stood for and even won office in earlier years. In

- addition, the elections here complained of were un-

contested, and only a small minority of the union

electorate actually voted... Under-these circumstances,

we think the §482(c)(2) proviso was satisfied. In

order not to leave in effect the lower courts’ contrary

‘conclusions, we vacate the judgments, of the. district

courts with instructions that the ecmplaints be

cismissed. a,

TEE

In our opinion, it is unfortunate that these appeals

are moot, for they reflect the need for appellate re-

view, in. Title IV cases. The IUOE provisions in ques-

tion and other IUOE candidacy. requirements have

been the subject of repeated attacks by the Secretary, .

_ and the district’ court ‘decisions have been divided.

See Wirtz v. Local Union 825, IUOE, Civ. No. 438-63

(D.N.J. 1966) (violation assumed—probable effect on

outcome not proved) ;.Wirtz v. Local Union No. 406,

IUOE, Civ. No. 14573 (E.D. La. 1966) (violations

found—no exhaustion of ‘union temedies); Wirtz v. —

* Local Union No. 9, TUOE, 51 CCH Lab.. Cas. para

19,579 (D.C. Colo. 1965) (violations found—new elec-.

tion ordered without considering whether effect on

outcome proved). Moreover, the: eligibility require-

ments of the IUOE. are the most stringent of the 68

major national and international: unions, which repre-

sent 90 percent of organized labor. The effect of

these requirements is revealed by the fact that only 35

of the 589 members of Local 410 were eligible to stand

for office in 1962. Since local elections under these

requirements recur every three years, it is important

on the merits by an appellate court. sS |

* According to the Department of Labor only two other

unions refuse members any grace period in which to pay their

dues inorder to be in “good standing” and in neither of them

must a candidate maintain his good standing for so long as the

12 months yquired by the IUOE. The IVOE ‘is the only

‘union with the pre-nomination declaration of candidacy require-

ment.

i >

. . Se

Title IV itself does not raise significant barriers to

appellate review. While the complaining: union mem-

ber must attempt 'to invoke internal union remedies, |

he need only wait three months after such invocation

befere filing his complaint with the Secretary. § 482

(a)(2).. And while the Secretary must investigate

each complaint and make a finding of. probable cause

of a violation, he is required by § 482(b) to hring a

suit challenging the election. within 60 days * the

filing of a complaint.

As these cases illustrate, it is the delays incident to

- civil cases in the district courts which create the sub- | _

_ stantial likelihood that subsequent union elections will

moot Title IV cases prior to appellate review.’ ‘To

prevent recurrence of such delays, we think ‘the dis-

trict courts should expedite the trial of Title I'V cases.

the Southern District of New York, it would seem

appropriate for-such a case to be assigned at an early

‘stage to one judge for all purposes. See Rule 2, Rules

‘of the Southern District Court. In addition, we sug-

gest that in a compelling case, such as one where union

_ elections are held annually, temporary relief may be

appropriate to prevent an election from mooting a

- pending Title IV. suit by the Secretary. Of course

-this court. is always ready to expedite such matters,

upon application, by ordering an early hearing of the

- 8In Local 410 the election was held June 4, 1962 and the

complaint. filed by the Secretary November 26, 1962. The trial

did not commence, however, until May 19, 1965. After the dis-.

trict court’s decision the new elections were held’ on August 2,

1965. a

In Local 30, the election was held June 12, 1962 and the com-

plaint filed by the Secretary October 8, 1962. ‘The trial began

March 25, 1965. After the district court’s order of dismissal

June 17, 1965, the union held: new elections on August 10, 1965.

_ complaints be dismissed as.moot.

; appeal and shortening the time for docketing _the

record and filing briefs. :

The judgments of ‘the district courts are vacated

and the cases remanded with instructions that. the”

Per Curiam: The petition for rehearing is denied.

Our opinion in this: case and in Wirtz v. Local’

Unions Nos, 545, 545-A, 545-B, and 545-C, Interna-

tional Union of Operating Engineers, decided Sep- _

tember 13, 1966, point out-the means. available to the--——— .-

Secretary to prevent-these-cases from becoming moot

and the’ means to. expedite their disposition, as the |

Congress intended, so that the rights of individual

union members may. be suitably protected without un-—

necessary delay. Thus, if unavoidable or excusable

delay prolongs the determination of a suit “brought

under 29 U.S.C. § 481 -to set aside an election, and it

appears. that another election may be held and new

officers installed, before the suit. may be determined,

the Secretary must make prompt and timely applica-

tion to the district court to stay-such election. This

is what the Secretary did in Wirtz v. Local -Unions

Nos. 545, et al. Be as ny |

The district courts should give these matters

prompt attention and preferential treatment. In ad-

dition, this court stands ready to do whatever may be

necessary to expedite the consideration of any such

matter which may be ripe for its attention.

Mangas Poa sO enti a tet eae Bogen A ar ial

APPENDIX F.

Sratutes INVOLVED oi

| “Labor-Management Reporting and Disclosure Act

of. 1959, 73 Stat. 519, 29 U.S.C. 401 et seq., provides

in pertinent part: ; ee 7

Titre LV. ‘ELECTIONS

TERMS OF OFFICE; ELECTION PROCEDURES

* oe ee * . - ser *

SEc.. 401. “(b) Every local labor organization. “’

shall elect its officers not less often than once .

ee every three years by secret ballot among: the

members in good standing. h

* * * “See

.(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 stand-

ing shall be eligible to be a candidate and to

hold office (subject to section 504 and to rea-

- sonable 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, disci-*

-pline, or improper interference or reprisal of

any kind of 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. —

Hach 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 au-

thorization provided for in a collective bar-

— a (44) % ‘

—— ¢

ceeeenectaiital

A et RP eS oe heh Say Rho ew

weet

45:

. gaining ‘agreement shall -be declared ineligible °.

to vote or be.a candidate for office in such or-

__ganization 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, sépa-

_ Yately. The election officials designated in the

constitution and bylaws or the secretary, if no,

other official is designated, shall preserve for

_ one yéar the ballots and all other records peér-

taining to the election. The election shall be

conducted in accordance*with the constitution

and bylaws of such organization insofar as they

are not inconsistent with the provisions of this

title.

ee - * - > = —

ENFORCEMENT

» _ Sec. 402. (a) A member of a labor organiza-,

tion—

(1) who has exhausted the remedies avail-’*

able under the constitution and bylaws: of

such organization and of any parent body or,

(2) who has invoked such availablé reme-

dies withoyt obtaining a final decisiagt

within three calendar months after their

“invocation. | .

may file a complaint with the Secretary within

one calendar month thereafter alleging the vio-

lation of any provision of-section 401 (includ-

ing yiolation of ‘the constitution and bylaws of

the labor organization pertaining to the elec-

_ tion and removal of officers). The challenged. —

_ decision thereon :(as hereinafter provided) and

- in the interim the affairs of the organization

shall be conducted by the officers elected or in

laws may provide. - . :

_ _(b) The Secretary shall investigate such com-

plaint and, if he finds probable cause to believe

' such other manner as its constitution and’ by-

ELISE ITT TS AEN SIT MTP GES, PIP RET PT

ON ee ee Fe eee Ie EP eT ne fe eNOS ON Dare Mm ne UN nt

io > e

. ° =<

ee ee " — — ‘ ente

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

eivil ‘action against the labor organization as

an entity in the district court of the United

States in which such labor oS. main-

tains its principal office to set aside the invalid

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

election or hearing and voté upon the removal

of officers under the supervision of the Secre-

tary and in accordance with the provisions of |

this title and such rules and regulations as the

Secretary may prescribe. The court shall have ..

power to take such action as it deems proper to

preserve the assets of the labor organization.

after a trial upon the merits, the court finds—

(1) that an election has not been -held

within the time prescribed by section 401, or

' (2) that the violation of section 401 may

have affected the outcome of an election,

the court shall. declare the election, if any, to be

as lawful and practicable, iri conformity with

under supervision of the Secretary and, so far

the constitution and bylaws of the labor organi-

zation. The Secretary shall promptly certify to

the court, the names of the persons elected, and

the court shall thereupon enter a decree declar- -

_ing such persons to be ‘the officers of. the labor

organization, If the proceeding is for the re-

moval of officers pursuant to subsection (h) of

section 401, the Secretary shall certify the re-

sults of the vote and the court shall enter a.

deeree declaring whether such persons have

ben removed as officers of the labor organiza-

_ tion. eat ;

(d) An order directing an election, dismiss-

sag a complaint, or designating elected officers . -

Se =

conducted shall, be exclusive:

47 .

of a labor orgartization shall be appealable ir

_ the sarne nianner as the final judgment in a,

civil action, ‘but an order directing an election

Shall not be stayed pending appeal.

APPLICATION OF OTHER LAWS

SEc. 403. No labor organization shall be re- .

quired by law to conduct elections of. officers

> with greater frequency or in a different form

or manner than is required by its own constitu-

tion or bylaws, except as otherwise provided by

this title. Existing rights and remedies to en-

force the constitution and bylaws of.a labor or-

‘ ganization with respect to elections prior ta the

conduct thereof shall’ not be affected by the

provisions of this title. The rem provided

by this title for challenging an electign already

neo «-

°-

: es ;

a wali

U.S. GOVERNMENT PRINTING-OFFICE: 1$67 —

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