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

Supreme Court brief1968

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INDEX ©

| Opinions below - - - - ---- ee eee eae Base takes GR ae

. Jurisdiction... .......:...<2 phn cpindanatemnneeiin wa

’ - Questions presented - --------- Cinigemh mae kinaneaee

Statute involved__---.-...------------ go Hee es en eo lees

— ‘

"mt 0 0 OO bt

Summary of argument.......--..--.------- eye nay oe

Argument:

I. In both cases, the courts of appeals erred in-

holding ‘that an action by the Secretary of |

Labor to declare an election void and to direct

_@ new: election under his supervision was

mooted by the intervention of the union’s next =

‘regularly scheduled election. _._------.------ 15

A. The policy of Title: IV is to ensure fair —

and democratic union elections. -_____ 17

B. Representative ‘union leadership cannot

_. be assured if the holding of a new -

election by the union precludes the ©

imposition of any sanction for a pre-

vious unlawful election. -__.....-._--- 19

C. There is no other effective remedy ‘under

Title IV to assure the elimination of .

_the adverse effects of an unlawful

RRR NEE yA eae a AS ENON 27

1. Expedited proceedings_-..------ 28

2. A new suit challenging the second

I, cminantrknetancadas ' 33

3. An injunction agairist the holding .

of Another election pending

_ completion of the Secretary’s —

Win dundtésusovechinngeesons 34

4, An injunction against the practice —

found.to violate the Act. __-_-_- 34

Se | ee age

271.926—67——1

CRI TRR SRE r ) ee c ow , 4 ; i.

a Rte 3 Salen ahtaalall eaksak Caasdiiaabeaennt Racate: exaksouemienanierguin a .

De ete ae ee eee oe sili dinnK huie) pis Any ee

t—Continued 4

II. In No. 58, the district court. erred in holding

thatthe Secretary in his suit may not challenge

the general election in which the violation

complained of occurred, or challenge the elec-

tion of other officers, because the union member

specifically challenged the violation only as it

affected the run-off election held with respect

to a single office for which the complainant Page —

was a candidate. ------~------. kenamucs Jabs >:

A. The additional issues raised in the

Dasgoalatey complaint were fairly within

the scope of the union member’s.

coniplaint to the union- -----+------- 40

B. Even unrelated violations, discovered, in

the course of the Secretary’s investi-

gation of a union member’s complaint, -

Ree may be raised in the Secretary’s action. 44.

III. In No. 57, :the district court erred in not finding

that the 75-percent attendance requirement

“may have’ affected” the outcome of the 1963

election......'---~<---<---<s-re--seeeeoee* -- 49.

Conclusion. Ni: ~~ --=---------- seen sn nner nnn ee 53

- Appenilix. ....5-<1=----2-----<------*-°"" aeenecceses _ 55

* CITATIONS ©

Cases: ™ peas

~ Oalhoon v. Harvey, 379 U.S. 134. - =------- ,18, 32, 41, 44, 48

California v. San Pablo & Tulare R.R., 149 U.S. 308- - 15

Federal Trade Commission Vv. Goodyear Co., 304 US.

, > ee ppctusbescesseeeocnenensss widen 26

Goldberg v., Amalgamated Local Union No. 355, 202 F.

Supp. 844..-.-+-------------22-7-2 "= Baer ae 25, 26

Goldberg v. Trico Workers Union, 53 L.R.R.M. 2875-- 20

Labor Board v. Fant Milling Co., 360 U.S. 301------- . 20, 47

Labor Board v. Jones & Laughlin Steel Corp., 331 US, .

416. « o canncapee inmate ‘danse etneessene 26

Labor Board y. Pennsylvania Greyhound Lines, 303

UWA. BEL... 2 =. 23a n-ne cntnn onsen enna cee 26

Local 67, International. Union of Operating Engineers

. + og, Wirte, 346 F. 2d 552.-.------------------°77" 45

Local 74, Ete. v- Labor Board, 341 U.S. 707------- ie 26

\adeibaieds Sb dazed’ eee . aimee,

Casee—Continned

Local Unions Nos. 645, 545A, 545-B, and 545-0, _

- International. Union of Operating Engineers v. Page

Wirtz, C.A. 2, No. 499, decided July 28, 1967_--.: . 31

Marlene’s Inc. v. Federal Tradé Commission, 216 F. °

ee ede aC khan tbeaeetnenconce 26

May Department Stores Co. v. aaner Board, 326 US.

Te ee CC Rk nd eeanehccenceoes 26

Mitchell v. Southwest cians Co., 271 F. 24 427_. - 26

National Licorice: Co. -v. Labor Dowd, 309 U.S. 350. - 20

- Porter'v. Lee, 328 U.S. 246_------- a wie wee 26

Sears, Roebuck & Co. v. Fedevil Trade Commission,

258 Fed. EN oS. Tee 26

South Carolina v. Katzenbach, 383 ee 27

Southern Pac. Terminal Co. v. Interstate Commerce :

Commission, 219 iS. 498_...------------------- 26

Swift & Co. v. United States, 276 U.S. 311_._.------- . 26

Texas & N.O.R. Co. v. Ry. Clerks, 281 U.S. 548___-_- 38

United States v. Bates Valve Bag Corp., 39 F.2d 162-’ «26

United States v. Bausch & Lomb Co., 321 U.S. 707-_-- 26

United States v: Republic Steel Corp., 362 U.S. 482___ 35,38

United States v. Trans-Missouri Freight _ .» 166

ey aches ee ck eciarhhe anew onene 26

Walling v. Helmerich & Payne, 323 U.S. 37_..-.----- _*

Walling v. Mutual ‘Whoelsale Food & Supply Co., 141

Cee ee ic amenceccnecnnnn ee - 26

Walling v. Reuter Co., 321 U.S. 671_2----- bn dcahiiat . 26

- Wirtz v. Great Lakes District Local 47, Masters, Mates

Se 8 | iia 41

Wirtz v. Hotel, Motel and Club Bipleyeos Union,

Local 6, C. A. 2, No. 513, decided July 28, 1967... 31,35

Wirtz v. Local 30, International Union. of ‘Operating § —

Engineers, 242 F. Supp.c631. .. ......-..-.4.---.- 41

Wirtz v. Local 66, Glass Bottle Blowers Association, 268

De ee pacdke scan ndcce 30

Wirtz v. Local 191, atiiee | 321 F. 2d 445____._-- 45

Wirtz v. Local 559, United Brotherhood of Carpenters

and Joiners, 60 L.R.R.M. 2522__...-.----------- 206

Wirtz v. Local 1752, ILA, 56 L.R.R.M. 2303, 2306:-. - 37

Wirtz v. Local Unions Nos. 9, 9-A and 9-B, Inter-

. national Union of Operating Engineers, 366 F.2d 911;

certiorari granted and decision vacated, May 15,

Oaaie-Ouatinned ’

Wirtz v. Local Unions 410, 410A, 410B « & 4100 Faler-

national Union of or ‘Engineers, 366 F.2d = Page

OOD oo iccnvdn decvccdeccwtcedusedscoes 6, 10, 17, 20, 51

Wirtz v. Local Unions Nos. B46, Etc., 366 F. 2d 435_- 17

Taiok, Local 78, 257 F. Supp. 784- -------------- -)

Statutes:

- Labor-Management Reporting and Disclosure Act of |

1959, 73 Stat. 519, 29 US.C. 401 a weal

O6 TBO. OO. .< ns cnncccastedetnccdsceasees 17, 55

0 TF BIR cic. nose ona cdnnakewniunes BE

. Bt tek ' i aa i saenestidle haere ae ana 35

Oo TOD). G61... .< caus ncneinceceess 3, 15, 19, 49, 56

99 U.S.C. 461(b)..------------+----- ise toe 28, 50, 56

e Bie ee SE

Oh EE WII Soca ccnced np ovtkainndagta® 3, 5, 7, 22, 57

00 TB GIR n goo nc eninsnnncnccnecesess 3, 15, 37, 59

29 U.S.C. 482(b)_-.-------=-------- 24, 28, 40, 45, 60 ©

29 US.C..482(c).----------- hinent -- 5, 24, 41, 49, 60

26 U.S.C. 482(d)...-..-.------- cp cncenapee ts 29

* TBO. Gs: .....<-0% NT SLO 17, 41, 61.

29 U.S.C. 521_------------------------------

Voting Rights Act of 1965, 49 U.S.C. 1973 et seq. -

Miscellaneous:

Bureay of Labor-Management Reports, Summary 0

Operations, 1963, 8, 11_----------------------- - 32

29 CER. § 452. nh STO te, Se Froese oa ea

88 Monthly Labor Review. 562 (1965) - -------------- -_:

Summers, Judicial Regulation of Union Elections, 70

Yale L.J. 1221..-.-------~------------4------ 2. °* 22

United States Department of Labor, Semnary) of Oper- i

ations, 1964, Labor-Management Reporting and Dis-

closure Act, p. 6..------------------------------ 32

United States Department of Labor, 1965 Summary —

_ Operations, Labor-Management Reporting and Dis-

closure Act, p. 7------------------------->---- 32, 37

United States Department of abor, Union Constitu- .

tions and the Election of Local Union 3 (1965),

Table 5, p. 22.---------------------}---------- 28

Websters, Third International Dictionary- XS Lack 41

Congressional Material:

Conf. Rep. No. 1147, “g6th Cong., Ist Sess... .-,---- ’

PE, BOO, FEE < ck newecsnccunsnscneencccnns

ER I, BARE, TCA hd wtntdccnnscnniibiénscncus

H.R. 8342, 86th Cong., ist Sess., Section 402(a) ; 105

Cong.. Rec. 15707-15708, 15887 IE FOR Ee ee 36, 49

H.R. 8400, 86th Cong., Ist Sess_______- ie ieee Wasa ace : 3

H. Rep. No. 741, 86th Cong., Ist Sess___-_----- oe o

S. 505, 86th Cong., 1st Sess., 105 Cong. Rec. 892___- 50

S. 748, 86th Cong., 1st Sess., 105, Cong. Rec. 1276___. 17, 36. .

S. 1002, 86th Cong., 1st Sess., 105 Cong. Rec: 2067__ . 45.

S. 1137, 86th Cong., 1st Sess., 105, Cong. Rec. 2666_- 36

S. 1555, 86th Cong., ist Sess., 105 Cong. Rec. 16150. 49

’ §. 3751, 85th Cong., 2d Seas.....-.........---1-=.- 29

S. 3974, 85th Cong.,; 2d Sess., 104 Cong. Rec. 18263_- 29

S. Rep. No. 187, 86th Cong., 1st Sess___----- 18, 24, 42, 45

Interim Report of the Select Committee on Improper

Activities in the Labor or- Management F Field, S. Rep. | _

No. 1417, 85th Cong., 2d Rn cntnctkeuseaamhune ' 23

jn the Supreme Gout of the Bited Sines

OCTOBER TERM, 1967 -

- “Ne. BT | be ae

W. Witarp Wirtz, SECRETARY OF LABOR, PETITIONER

athe Vv.

- Locat 153, Guass Bortie BLoweErs AssocIATION oF

THE UNITED StaTEs AND Canapa, AFL-CIO

No. 58

W. WILLARD Wirtz, SECRETARY OF LABOR, PETITIONER ©

| u. :

Loca, Union No. 125, LaBoRERS’ INTERNATIONAL

-Unton or NortH America, AFL-CIO

. ON WRITS OF CERTIORARI TO THE UNITED STATES COURTS OF

APPEALS FOR THE THIRD AND SIXTH CIRCUITS ©

BRIEF FOR THE SECRETARY OF LABOR

y OPINIONS BELOW |

’ In No. 57, the opinion of the court of appeals (57 R.

65) is reported at 372 F. 2d 86, and the opinion and

judgment of the district court (57 R. 38) is reported

_at 244 F. Supp. 745. The order of the district court

on the Secretary’s motion for post-judgment relief (57

R. 55) is unreported. |

In No. 58, the order of the court of appeals (58 R.

(112) is reported at 375 F. 2d 921; the opinion of the .

a (1)

EGS a a Taal danse , Pa . .

Cal. x RR waa A Ie LDR PaO Gh ns 25 Wei:

district court striking portions of the complaint (58

R. 5) is reported at 231 F. Supp. 590; and the opinion

_. of the district court on the Secretary’s, motion for

summary judgment (58 R. 92) is unreported.

3 JURISDICTION :

In No. 57 the judgment of the court of appeals (57

R. 70) was entered on December 16, 1966. In No. 58,

the judgnient of the court of appeals (58 R. 112) was

entered on December 15, 1966. The petitions for writs

of certiorari were filed on March 3, 1967, and granted

on May 15, 1967 (57 R. 72; 58 R. 114). We invoke the

_ jurisdiction of this Court under 28 U.S.C. 1254(1)- —

QUESTIONS PRESENTED

- Title IV of the Labor-Management Reporting and

Disclosure Act of 1959 establishes standards for un-

ion elections. The Secretary of Labor, upon the com-

plaint of a union member who has failed to obtain

within three months redress through the internal

processes of the union, is authorized to bring suit. If

the court finds that a violation of the Act has oc-

curred which may have affected the outcome of an

election, it is directed to declare the election void and

to order a new election under the Secretary’s super-

vision. We present the following questions: relating to

this statutory scheme: :

1. Whether the’ Secretary’ s suit is mooted if, dur-

ing its pendency, the union holds another election.

.2. Whether the Secretary may challenge only the

precise violations specified in the member’s complaint.

té@he union (No. 58),

HON6 Fi tem dines ohare iabosigoe, +2: the Linch a9 ditialy jh oe i speitea

mse, fae

Maes

ye ee

_ 8. Whether an. unreasonable. candidacy qualifica-

tiori may have affected the election’s outcome when it

rendered more than 97 percent of the union member-

ship ineligible for elective office, including a mémber ©

who had aad been nominated (No. 57). to)

STATUTE INVOLVED ; +

The pertinent provisions of the baie

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

29 U.S.C. 401 et seq., dre printed in the Appendix,

infra, pp. 55-62. |

STATEMENT

1."No. 57—The Secretary of Labor, on March 31g

1964, filed suit asking the district court to set aside a®

election which had_ been conducted by the defendant

union on October 18, 1963, and to direct the holding

of a new election, to be supervised by the Secretary.

The action was instituted pursuant to Section 402 of’

the Labor-Management Reporting and Disclosure Act

of 1959 (29 U.S.C. 482), which Guthebizes | the Secre-

tary of Labor to bring suit in respect of a violation of

Section 401 of the Act after receiving a complaint

from a union member who has exhausted his’ internal

union remedies, and directs thé district court to grant

_-the relief prayed for if it finds that such a violation

may have affected. the outcome of an election. The com-

plaint alleged that the union had violated sSection

401(e) of the Act, which provides that in an election

__ subject to the Act every member of a labor organiza-

tion shall “be eligible to be a candidate and to hold

office (subject to * * * reasonable TEE uni-

formly imposed) * * *,”

It was stipulated that respondent, Loeal 153, is a

271-926—67—2

4 a

local labor organization chartered by, and subordinate

to, the Glass Bottle Blowers Association of the United

States and Canada, AFL-CIO, is engaged in an indus= —

try affecting commerce as defined by. the Act, and is.

therefore subject. to the requirements of Title IV;

that the International Constitution and the local’s by~

laws require. all candidates for local wnion office to

have attended 75 percent of the monthly union meet-

: ings in the two years prior to the election; that mem-

bers 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 sub-—

‘ mitted in writing to the union’s secretary within 72

hours of the missed meeting (57 R. 10-18). As a con-

sequence of these requirements, it was stipulated, only

11 members of the 500-member union were eligible to

run for office in 1963 (57 R. 12). In the election the

. Vice-President and. Financial Secretary ran for re-

election unopposed (57 R. 17) ‘and there were no can-

- didates at all for Recording Secretary and for three

Trustee positions; these positions were filled by the

appointment of members who could not have quali- —

fied as. candidates under the meeting-attendance re-

' quirement (57 R. 12). |

This action was instituted after the henntiien had

received and investigated a complaint from a union

_ ember, a nominee for the office of president of)the .

_ local, who was disqualified as a candidate because he ©

‘had attended only 17 of the 24 relevant monthly -

meetings (57 R. 13). The minutes of oné of the seven

_ meetings which he missed indicated that he*had been « ~

hospitalized on the occasion of that meeting (57 R.

18. ‘The union had failed to act on the member’s in-

ternal complaint (57 R. 11-12). |

" < The district court held that the 75-percent attend- ,

ance requirement violated the ‘‘reasonable qualifica- ~.

tions?’ provision o Section 401(e) because 75 percent

-was too high a percentage, the provision governing

_ excuses was too limited and the effect of the rule too

restrictive (57 R. 44-46). N otwithstanding this con-

‘clusion, the eourt denied. the relief requested by the

Secretary on: the ground that the plaintiff had failed

to establish that the violation “may havéeaffected the

- outcome” of the election, as required by Section 402

- (¢)(2), because there was evidence that the complain-

lig member “voluntarily absented himself from meet-

. ings on occasions not justified by sickness or other un- -

was not due to the existence of the easonable re-

. avoidable emergency, and thus his op to qualify

° / quirements of the By-Laws but to his.6wn voluntary

unwillingness. to comply therewith’’: (57 R. 47). It

therefore dismissed the complaint, although it “re-

tain[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 regu-

larly ensuing election of officers of defendant union’’

(57 R. 48). The Secretary appealed from the: judg-

ment of dismissal. ee hee

The union’s next regular election was held in Oc-.

- "tober 1965, and on the Secretary’s: motion the court

of appeals remanded the case to the district tourt to

- take evidence concerning that election (57 R. 49). The

we :

— - . ni

aed serwmemeneinens os cenrmmmmmenns ol ait tha Dea Ze. P

The: Secretary later moved for summary judgment

with respect to the remaining allegations of the com-

-‘plaint. The court, finding that at least 58 of the 379

members who voted i in the run-off election of. July 13,

1963, and two of the three candidates in that run-off

- election; had béen ineligible under the. union’s consti-

_ tution, granted. the Secretary’s notion and directed.

the conduct of a new election for the office of Busi-

_ness Representative under the Secretary’s supervision ieee

(58 R. 107). Referring to its earlier ruling dismissing

parts of the Secretary’s compfaint, the court found it ~

. unnecessary to decide whether the Secretary was en-

a titled to challenge the run-off election on the basis of

the ineligibility of two of the three candidates. Be-

? eause of the imminence of respondent’s next regular

emerge election, the court directed-that the regular-election

7 for the office of Business Representative be held

under. the supervision . of the Secretary and the suc-

en cessful candidate installed in office for a full consti-

o | tutional term (58 R. 110).

The Secretary appealed from. the ene limiting

relief to the office of Busines’ Representative. On_

June 11, 1966, less than two months after the district

-eourt had rendered judgment, the union held its next _

regular election and, at the same time, a supervised

election for the office of Business Representative

_ pursuant to the court’s. order. The court of appeals,

without. reaching any other issues, thereupon dis-

missed thé Secretary’s appeal as moot, relying on the

decision of the Court of Appeals for the Second Cir- _

cuit in Wirtz v. Local Unions 410, 410A, 410B &

~ é

1 PE ne ee eee SN ee 7

| ‘Li:

4106, International Union OF ‘Operating Engineers,

supra... é .

. SUMMARY OF ARGUMENT

_ Title IV of the paises a and .

Disclosure Act of 1959 establishes certain standards

’ for the conduct of. union elections. The procedure for

redressing violations of these requirements is as fol-

lows.. First, a union member must: complain to the

union of an electoral violation. Should the union fail -

to make voluntary correction, the Secretary of Labor’

May bring an action in a federal district court. The

court shall declare the election challenged by the Sec-

retary void, and direct the holding of a new election

under the Secretary’ 8 supervision, if it finds that a -

violation of Title ITV occurred which may have affected _

the: outcome of the election.

In each of the two cases at bar, io union . held. its

next regularly scheduled election while the Secretary’s

_ appeal from an adverse decision of the district court i

_ was pending, whereupon the court of. appeals dis-

-. missed the case as moot because, in its view, the Sec- ..

retary was no longer entitled to an order directing a

new election’ under his supervision. However, the

provision requiring a supervised election upon finding

. . & Violation that may - have affected the outcome of:

_ the challenged election i is unqualified ; the statute does

' not say, “unless the union has already held its next -

election,” although it could have been anticipated that.

_asecond election would frequently overtake the Secre-

tary’s suit. Moreover, to imply such a limitation on °

271-926—67—_3

Sisietary submitted an. affidavit stating that the 6-

perceat attendance requirement had remained in effect *

during the 1965 election; that in consequence only

2.6 percent of the membership had been eligible to

run for office; that only eight candidates ran for the ee

eight,.union offices, with only one running for presi-

dent and no candidates 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

(57. R. 52-54). The district court denied the Secre-

tary’s motion to have the 1965 election _—

‘invalid (57 R. 55).

-°On appeal by the Secretary, the. ‘sete of egpecis

held that the Secretary’ 8 challenge to the 1963: elec-

. tion had been mooted: by the 1965 election. The court

relied on the decision of the Court of Appeals for the

~- Second Circuit in Wirtz v. Local Unions 410, 410A,

410B & 410C, International Union of Operating En-

_ gineers, 366 F. 2d 438, arid in particular on the fol- .

lowing reasoning ‘of the Second Ciroutt (366 F. 2d.

at 442):

* -(]hé exclusive remedy which Congress ha&

- ereated for challenging a union election; see 29

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

clare the election void and to direct the con-

duct of a new election. * * *

* * * Tt 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 to seek _

either to enjoin future elections, or to declare

~~ > 2.

Diab 2 bala Rood! ee |

ied

“. sen RMR tary aoe oR. ah tl

if Sue ‘

-_a given candidacy requirement unlawful ab-

sent a valid complaint‘and an investigation of

its application. to a specific election * * * we-

‘eonclude that. we have no power to afford the

Secretary relief and therefore that these cases

are moot. -° a

The court found it unnecsssary. to decide whether —

.-the trial court, had been correct in ruling. that the

imposition of the unreasonable meeting-attendance

qualification could not have affected the outcome of

the 1963 election, but stated that it would not permit

the decision to stand as a precedent on this contested

_., issue and, therefore, directed that both the judgment

and the post-judgment order. be vacated (57 R. 69).

-2. No. 58. —Respondent, a local union engaged in

an industry affecting commerce. as defined by the’.

Labor-Management’ Reporting and Disclosure Act

and therefore subject to the requirements of Title

IV, held a general election of officers on June 8, 1963.

The vote for the office’ of Business Representative

was a tie. A run-off election for that post’ was held .

on July 18, 1963 (58 R. 92). Within one month after

the run-off, the losing candidate in the run-off pro-—

tested its ‘conduct to the union, on the ground that —

members not in good standing had: been permitted to

vote, in violation of Section 401(e). He then filed a

complaint with the Secretary of Labor i ire an ti his

protest. (58 R. 92). |

~Respondent is governed by the Constitution and the

Uniform Local Union Constitution of the Laborers’:

International Union. of North America. Under the

7 Uniform dace Union Constitution, Reprint dues

: a

are payable on: the first day of each month; unless

they are paid on or before the last day of the fol-

‘lowing month, good standing is lost, and-the member

is automatically suspended witlgut notice and with |

loss “of all membership rights except the right to

readmission upon payment of a fee (58 R. 87, 95)«

Readmitted members are ‘considered new members

from the date of readmission (ibid.). Candidates for -

office are required’ to have maintained continuous . ;

membership in good standing for a period of two

years in the International and at least one year, in the

Local (58 R. a any member whose dues:

are in arrears for e than two months is auto-

matically suspended, such arrearage occurring within

two years before the election ‘makes ‘a member in-

‘eligible to be a candidate.

The-International Constitution requires respondent

to remit to the International a per capita tax pay- .

ment of $1.00 per member each month (58 R. 30,

96). These payments are to be made only for mem-: -

bers who have in fact made current payment of their

~ dues to the Local (58 R. 39, 98). However, during

- the calendar year 1962.and until July 1963, respond-

ent’s Secretary-Treasurer at times remitted per capita .

tax payments. to the International from the‘ general

fund of the Local in behalf of individual members

who had not made timely payment of their dues. (58

R. 96-98). As a result, some 50 to 75 members ap-

peared to be.in good standing, on the basis of the per

eapita tax reports, although they had actually lost

“their good standing (58 R. 63, 96). During the same -

period, some 700 members who had fallen into arrears ©.

in the payment of their dues were automatically sus-

pended with loss of good standing in accordance with

" the Constitution (58 R. 101). The Secretary’s investi-

gation disclosed that 16 of the 27 candidates for ©

office in the June 8, 1963, election, including several

victorious candidates (among them the eventual win-

_ ner of the run-off election) should, have been ruled —

ineligible under the foregoing provisions and that —

"approximately 50 of the members voting in the June

8, 1963, election, and approximately 60 -members

voting in the July 13 run-off election; should have

been declared ineligible (58 R. 75-76).

By a letter dated January 27, 1964, the Interna-

tional and respondent Local: were advised -of these

- findings. (58 R. 68). A conference between attorneys

representing the Secretary and attorneys representing ~~

the Internatiqnal was held on February 4, 1964, to

discuss the investigative findings (58 R.:75-76). When

the representatives of the International declined to

take any corrective action, the Secretary, on February .

7, 1964, brought suit to declare both the general and

run-off elections invalid and to direct a new election”

of officers under his supervision. The complaint al-

leged that the union had violated the Act by per-

mitting ineligible members to vote and to run for

office: at both the general and run-off elections in 1 1963

(58 R. 3). ) . :

~ On ‘the union’s motion, the district count struck

those portions of the complaint directed to the elec- —

- tion of officers other than Business Représentative

because no complaint by a union member. had chal-

lenged the general election of June 1963 (58 R. 15).

DOSER alten Si Neale eine Nai dN Oe Cie cert cis itt AS eat ben iS. .

: 12

the scope of the relief sillitile to othe Secretary w would

defeat the basic policy of Title IV.

Briefly, that policy is to foster union democracy

"and representative union leadership.. -These goals

£ would be thwarted if the Kolding of an unsupervised

election terminated judicial ‘power to order a super-

: vised election. In the first place, there is no assurance

that the union: in the second election will abandon the

violation that gave rise to the Secretary’ . challenge

to the first: Where it does not—as happened in .one

of the cases at: bar, No. 57—the. result is that the,

violation will go entirely uncorrected ‘unless.a super-

. vised . election is ordered, since Congress gave the

courts no power to enjoin violations of Title IV. In -

the second place, ineumbent officers enjoy inherent

advantages in obtaining re-election’ in an unsuper-

vised election because they control the electoral ma-

chinery. ‘Thus, if they” were unlawfully elected, a.

supervised election (the procedures for which are

- specifically designed. to minimize the advantages of the

incumbents) is necessary in order to assure that the.

effects of the illegality do not persist. ="

To be sure, the result will sometimes be the nulli-

fication of an election: that was not itself unlawful.

But it is not uncommon for a judicial remedy to out-

Sane ot hn Minette ie OU te ot

oat i Rail tf ate ee weg

law some lawful as well as unlawful acts where neces- |

sary to ensure complete and effective relief against

a proven illegality. This result is far preferable to

- either enjoining the holding of anotlier election pend-

ing, the Secretary’s suit attacking the first—which

serves only to perpetuate. the unlawfully elected in-

‘ - eumbents in office beyond the expiration of their

ee specifically challenged only

, re enjpndtiiil the Secretary suit—a device

that will often be ineffective, due to the frequency of

union elections, and “sometimes. positively harniful in |

its impact-on the statutory policy and procedires of

vol atary settlement 7 électoral violations.

ae ehh oh a

In No. 58, ‘the district court held that the Piensa

. of Labor could not challenge a general election for all

officers’ because the complaining un.on member had

the conduct of the ratvoff

election for the one office as to. which the general

election resulted in.a tie vote. We believe that the

Secretary was entitled to broaden the scope of the |

suit as he did. The Secretary’ s allegations were fairly:

within the scope of the internal -complaint, which, .

limited as-it was, placed the union on clear notice of

‘ the violations. that had. occurred at the general :elec- |

tion. For any reasonably careful investigation of the

run-off would have revealed that the same violation

-. had occurred at the general election and had extended -

to all of the offices. at stake. \ ,

‘Beyond this, we submit that the Secretary i is entitled

_ to challenge any violations that he has uncovered in

the course of his investigation of the union member’s

complaint. The statutory language i imposes no restric-

tion on the scope of the complaint (save that it must

* relate to the. ‘election, challenged by the complaining

“member, and for ‘this purpose it seems plain that the

run-off and the general election which precedéd it

should be viewed as a single election). The: statutory

im goal of representative union leadership ‘would is .

14 ;

undermined if the Secretary could not proceed against

- violations that his investigation of .the internal com-

plaint revealed merely because they were concealed

from, or overlooked by, the complainant. Nor is the

policy underlying the internal-coniplaint-and-exhaus-

_ tion requirement—to afford the ufion an opportunity —

> to correct any electoral violations voluntarily before

the Secretary brings suit—offended by the principle ¢

we urge, since the Secretary motifies the union, in

advance.of suit, of any violation he discovers in thes

course of hi investigation (whether or not they were

alleged in the internal complaint), thus affording full,

_ opportunity fér voluntary correction. a

III - AS Rae

The district court in No. 57-held that a requirement

that union members to be eligible to stand for office ~~ .

have attended, 75 percent of the union’s monthly

meetings in ‘the two years preceding the election was =

unreasonable and ‘herice unlawful under Title IV, but |

. pefused to find that it “‘may have affected the outcome”’

"of the election—the necessary predicate for relief, |

‘This. was error. The purpose of requiring a showing |

that the violation may have affected the outcome of ’

. \ tthe election is to excuse trivial violations; but that,

; plainly, is not our situation. Here the u wful prac-

tice resulted in disqualifying 97 percent of the union’s. —

membership from running in the union’s elections...

Nor can it be said that none.of those wrongfully: dis-

qualified might have stood for office and won—thus

affecting the outcome—especially when one of the dis-

qualified members ‘was an avowed candidate for a

specific union office. | aici

eet

I. IN BOTH CASES, THE COURTS OF APPEALS ERRED IN

HOLDING THAT AN ACTION BY THE SECRETARY OF LABOR

e TO DECLARE AN ELECTION VorD. AND TO DIRECT A NEW"

; ELECTION UNDER HIS SUPERVISION WAS MOOTED BY THE .

INTERVENTION © OF THE UNION 8 ~NEXT. REGULARLY

SCHEDULED ELECTION.

Section 401 of the Labor-Management, Reporting

and “Disclosure Aét of 1959 deelares unlawful certain

abuses in union elections, such ‘as imposing unreason-_

able- candidacy requirements,: and Sectién 402 em- °

powers the Secretary of Labor,’ upon complaint by —

_ @ union member after he has Fe. aA his internal

union remedigs, to bring an action in federal district

court to. redré& Ssuch violations, The latter provision

stipulates ott" Af. the court. finds that a violation

edlWwhith “may have affected the outcome of an.

election,” it “shall declare the election, if any, to be

void and direct the conduct of a new election under

supervision of the Secretary * * *.” In each ‘of the.

cases at bar, the Secretary brought a suit under this —

provision, challenging a union election and while his’ :

Suit was’ pending on appeal the union held its next |

election. Both courts of appeals dismissed the appeals

as moot by reason of the new election. The principal

_ question - presented is ‘the cprenatnons of this

oe R ;

ora A case’ becomes moot when. the rélief sought be-

comes f&tile, impossible or academic. E.g., California

y. San Pablo & Tulare ®.R., 149 U.S. 308. Thus, a

suit to replevy a specific article would be moot if, oo

prior to judgment, the article was returned-to tle :

Jy \

. 16

*. plaintiff, or destroyed. These suits by the sininiteny

,of ‘Labor are moot if, by reason ‘of the intervening

“elections, he is no. longer entitled to orders. directing

‘new elections under hig supervision even if he estab-

lishes that_ the previous elections are void.

The language of the ‘Labor-Management Reporting

"* and: Disclosure , Act lends no support to the view of _

- the courts below that the intervening elections cut off =~.

. the Secretary’ s right to the relief asked. The Secre-

tary is entitled to such relief; under Section 402,

when -a violation has occurred “which may have

Pea _ affected the outcome of an election,” and there is no’ )

provision . equating “an election” with “the imme:

diately preceding election.” No such gloss was sug-

| k gested 1 in the debates preceding enactment. Nor is that

result indicated’ to us when we look’ Yo the general

. purposes and overall design of the: -Act.

‘To be sure, if'the Act were concerned to. protect.

only the private right of a union. member to-run for

fa particular union office in a particular election, there

might be some merit to the argument that, once the ~

term of office to.which the candidate aspired has been ..

‘terminated. by the election of new officers, he is no

longer entitled to complain ‘about the old election. |

~ But éven the courts. ‘below did not adopt so narrow a

view of the purposes. of the Act. They conceded

. the Secretary’s interest in th electoral process be-

yond the immediate term of office in issue by endors-

; ing fhe Second Circuit’s suggestion that the Secre-

tary, to prevent. ‘his suit from becoming) moot, may

' ask to’ enjoin the holding of a new election and thus”

to beteeeals =. ‘incumbents | in office reicen their _

“pene tena 17

_ prescribed tern," As we show presently (infra, pp.

17-19), the Act is intended to do more than protect

a. candidate’s right to:run in a particular election:

the objective is te ensure a democratic electoral proc-

ess. Arid. that purpose, as we shall demonstrate _—

(infra, pp. 19-38), requires that the courts be free to

order a new. election, supervised by the Secretary,

notwithstanding that the union has held another

7 election in the interim. ©

A. THE ‘POLICY OF TITLE Iv Is “TO ENSURE FAIR AND DEMOCRATIC

: UNION ELECTIONS 3

The policy underlying Title IV is stated at the out-

- - set of the Act (29 U.S.C. 401) :

/ The Congress finds that, in the public inter-

est, it continues: to be the responsibility of

the Federal Government to protect employees’

rights to * * * choose their own ee

tives. --

‘Thus, although some of the bills before Congress

'_ would have permitted the complaining union member

to sue in his own right (S. 748, 86th Cong., 1st Sess.,

105 Cong. Rec. 1276; ‘H.R. 8342, 86th Cong., 1st .

Sess., 105 Cong. Rec. 15887), the Act as finally

ies passed: provided that a suit by the Secretary*of Labor

was te be the exclusive post-election. remedy. 29

U.S.C. 483. So providing, “Congress decided to uti-

lize the special knowledge and discretion of.the Secre-_

tary of Labor in order best to’ serve the public

1 See Wirtz v. Local Unions 410, Etc., 366 F. 2d 438; . Wirtz v.

‘Local Unions Nos. 545, Ete., 366 F. od 435. We explain infra,

p. 34, why the Second Circuit's suggestion does not provide

a suitable means of implementing the Secretary’s continuing

interest in Fassel union’s electoral process.

(+98 -

interest.” Calhoon v. Harvey, 379 U.S. 134, 140

(emphasis added). The focus is on the right of all

the. union members. to be governed by Officials who

are “responsive to the desires of the men and women

whom. they. represent.” S. Rep. No. 187, 86th Cong.,

- 4st Sess., p. 20; H. Rep. No. 741, 86th Cong., 1st

- Sess., p. 16. Of course, Congress also viewed Title

IV as.a means whereby losing or disqualified candi-

dates could receive the assistance of the federal gov-

ernment in vindicating their rights (see 104. Cong..

a Rec.. 10947 (remarks of Senator Kennedy) ; but this

‘is not the sole office which Title IV performs. .

One indication of the broader interest protected is

that the Secretary’s power to institute a suit under _

this title does not depend on complaint being made by

a losing or disqualified candidate; the only prerequi-

- gite to suit is a complaint (after exhaustion of inter-

nal union remedies) by ‘‘a member”’ of the union (29

U.S.C. 482(a))—by any member (S. Rep. No. 187,

86th Cong., Ist Sess., p. 13) who feels aggrieved by the

electoral result. The complaint-and-exhaustion require-

ment is designed primarily to preserve “‘a maximum

amount-of independence and self-government by giv-

ing every international union the opportunity to cor-

rect improper local elections’’. (S. Rep. No. 187, 86th

Cong., Ist Sess., p. 21), with a secondary purpose-

being to confine the Secretary’s intervention to situ-

ations in which the electoral abuse is grave enough to

move at least one member of the union to complain;

and these objectives are completely consistent - with

the view that the basic purpose of Title IV is to en-

sure representative union. leadership—to protect the

aaa Paint er ee Sa Nate a a

- 19 ,

voter—rather than ee to advance the interests “

aspirants for union office. —

We next show that this purpose owed often be -

thwarted unless the Secretary-s right to relief sur-

vived a new election.

B. REPRESENTATIVE UNION LEADERSHIP CANNOT BE ASSURED IF THE

HOLDING OF A NEW ELECTION BY THE UNION PRECLUDES THE

IMPOSITION OF ANY SANCTION FOR A . PREVIOUS bial

- ELECTION : /

Superficially, it hight seem that the adverse effects

on union democracy of an election whose outcome

- might have been affected by a violation ‘of Section 401 -

would wash out when the union held its next election. —

In many instances, however, the taint of the original

election .infects the next and is curable only by the

Secretary’s ‘‘laboratory”’ election. -

The facts of No. 57 illustrate this in striking fash-

ion. On. remand, the Secretary proved that at the

- union’s second election in October 1965—the event the ©

court of appeals later held mooted. his action—the

attendance requirement of the union’s bylaws which

had given rise to the suit was again used to disqualify

candidates, despite the decision of the district court .

on August 26, 1965, holding this limitation unlawful.

“As a result of the requirement only 13 of 500 members

were eligible to run for office at the 1965 election and.

only 8 candidates actually ran. Indeed, the union’s

electoral process was so distorted. that there were no

candidates at all for the three trustee offices, which

- the union’s bylaws require be filled electively, and it —

became necessary for the president of the union to

appoint the three incumbent trustees ae he had done

271-926—67——4 ‘.

after the previous election in 1963) although they

were ineligible under the attendance requirement to

‘run for the office.

Thus the taint of the challenged electién persisted

in the succeeding one; the results of the latter were no

more representative than that of the former. The sec-

ond election made the statutory remedy of a labora-

tory election no less needful.’ And that would be true

2 Before the decision of the Court of Appeals for the Second

Circuit in Wirtz v. Local Unions 410, 410A, 0B & 4100,

International Union of Operating Engineers, supra, the dis-

trict courts had generally upheld the Secretary's right to file a

* supplemental complaint, without any renewal of the initiating

procedures of: internal ‘protest, complaint: to the Secretary, in- .

- vestigation, and finding of probable cause, when—the alleged ——. -

violations giving rise to a pending Title IV suit were repeated

‘in a subsequent election. Goldberg v. Trico Workers Union, 53 |

LR.RM. 2875 (W.D.N.Y.); Wirtz v. Local 559, . United

Brotherhood of Carpenters and Joiners, 60° L.R.R.M. 2522

(W.D. Ky.); Wirtz v. Research, Development and Technical

Employees Union (D. Mass., Civil Action No. 64-567-W,

1965); Wirtz v. Local Union 825, 825A, 825B & 8250, Inter-

national Union of Operating Engineers (D. N.J., Civil Action

' No, 488-63, 1965); Wirtz v. Local 84, Glass ‘Bottle Blow-

ers Association (D. Kansas, Civil’ Action No. KC-2140, 1966).

The procedure followed in these cases was consistent with the

decisions of this Court in the closely analogous situation pre-

sented in’ National Labor Relations Board unfair labor practice

proceedings. The Board, like the Secretary of Labor under

Title IV of our Act, may act only upon receipt of a complaint,

or a charge, from an aggrieved party. However, the Board is |

not precluded from “dealing adequately with unfair labor prac-

tices which are related to those alleged in the charge and which

grow out of them while the proceeding is pending before the .

Board.” National Licorice Co. v. Labor. Board, 309 US. 350,

369; Labor Board v. Fant Milling Co., 360 U.S. 301, 306-307,

309. Similarly, here, the. Secretary and the courts should be

free to deal with violations related to those alleged in the com-’ .

plaint which take place during the pendency of the litigatian,

ee) Od ee A ce a a aT

; mY 21

even if the union had not actually applied its unlaw-

ful condition of candidacy, for there would have been

no assurance, without a supervised election, that the

union members had been adequately notified of the

elimination of the unreasonable attendance require-

ment.’ Certainly,. thé continuing need for a laboratory |

election exists when it is not known whether the vio-

~ lation giving rise to the Secretary’s suit persisted into

the second election. *

Such is the:case in No. 58. There is no evidence

whether the violation was repeated in the unsuper- |

vised portion of the 1966 election.‘. But, in any event,

the remedy of a laboratory election-closely supervised

and controlled by the Secretary is designed not merely -

- to assure the discontinuance of the particular violation

found—an objective that could as well be. achieved

by empowering the court to enjoin violations (see.

infra, pp. 34-37). Of equal-importance, the laboratory

election serves—more effectively than alternative de-

yices—to neutralize the inherent advantages of the

*One of the procédures which the Secretary follows at super- -

vised elections is to hold a pre-election conference, open to the

' membership, at which ground rules for the election are adopted.:

‘The Department.of Labor advises us that its representatives

who supervised the election for Business. Representative -were

not in a position to determine whether ineligible members either

ran for office or voted at the election for the other offices. Al-

though the supervised and unsupervised elections took place ‘at

‘the same time and in the same hall, separate ballots and sep-

arate ballot boxes were used, and there were two separate lines

_ of ‘voters. Thus, so far as the Department knows, persons ruled

ineligible to vote -at the supervised election could have voted

at the unsupervised election, and persons ineligible to run at

the supervised election could have run at the unsupervised -

" election. , 3 | |

unlawfully elected incumbents in perpetuating their

office in subsequent elections through control of the

electoral machinery, using techniques which are not

demonstrably . unlawful but which nonetheless favor

incumbents: Unless a supervised election is conducted -

to’ break Aer of control a single invalid election

may taint several which followit. . = °

The procedural standards for elections which the

1959 Act and most union constitutions and ‘bylaws :

establish leave to those administering the elections

~ eonsiderable room for maneuver. To be sure, the Act

oe aN a th aia DIE NTE SRI IL. ads 8 Wnt SiR MR BE IE AGE See Ce

contains specific provisions for ensuring equality of ~ -

treatment with respect to mailing of campaign litera--

ture; requires “adequate safeguards to insure a fair

election’’ including the right of any candidate to have |

observers at the polis and.at the counting of ballots;

and guarantees “reasonable - opportunity”’ for the

nomination of candidates, the right to vote without

fear of reprisal, and the right of every member in

_ good standing to be a candidate, subject to “reason-

able qualifications uniformly. imposed.” 29 U.S.C.

481 (c), (e). Nevertheless, when the incumbent of-

ficers control the details of the election process, they

are in a position to-make decisions regarding election

procedure which favor the incumbent slate yet can-

not be shown, in a post-election suit, to have been il- -

legal or, if illegal, to have been sufficiently important

to the outcome to justify ‘setting aside the election.

As one distinguished student of the subject has re-

_ marked (Summers, Judicial Regulation of Union

_ Elections, 70 Yale L.J. 1221, 1228-1229 (1961)):

m ——

= SE et aR a Ra OT Se AB

_. The problem’ of maintaining equality in a

y enigaaie election is aggravated bythe fact 3

at control of the process is commonly iin the -

hands of one of the competing factions. The

lack of any’ established two-party system. in,

most unions hinders the development of de-

_ Vices for sharing control between the opposing

i groups. * * * fr R

‘ Normally -unicn officers’ control the election

process. They call and preside at the nomina-

_ tion neeting, rule on the qualifications of can-

didates, design the ballot, fix the time and place _

“of the election,-and rule on the qualifications’ —

of voters. Many of these functions may he

_ Vested in an election committee, but * * * the

_ administration group often dominates — this

committee. Although those in control are gov-

erned by the union constitution, its sketchy

provisions leave substantial room to maneuver

for critical advantages.

These dangers were known to the framers of Title

IV, enacted: as it was against the background of an

extensive congressional inquiry which revealed. how -

Some union officials had been able to perpetuate their

control of union office. See Interim Report of the

Select Committee on Improper Activities in the Labor

or Management Field, 8. Rep. No. 1417, 85th Cong.,

2d Sess. Congréss was aware that incumbent uhion

officers enjoy considerable advaritages in seeking’ re-

election and that undemocratic procedures followed in

one election can have a continuing impact on the

outcome of subsequent elections. Provision was made

for a supervised election to break the cycle. The Sec-

Tetary was authorized to establish procedures for the

supervised election which are desigried not only to en-

Satcher an . .

ee ee why a

sure that the election is conducted in ‘a lawful manner

under the union’s constitution and bylaws ° but also to

deny the incumbent officers’ any opportunity to favor -

the administration slate in making decisions—and he *

has done so.° _ e5 is

In sum, in regular, unsupervised elections the union

itself determines the ‘details of election procedures,

- because Congress wished. only to prescribe minimum

standards of fair procedure for union electiéns, be-

lieying that unions generally could be trusted with .

responsibility to work out the details of their own \

‘internal procedures in a fair manner. S. Rep. No.

187, 86th Cong., Ist Sess., p. 7. But once.the Secre-_

tary has shown that a union has committed ‘a. viola-

tion of the Act which may have affected the outcome ee

of an election, that trust is forfeited and it becomes + ~

* The. supervised election must be held, “so far. as lawful and

practicable, in conformity with the constitution and bylaws

of the labor organization.” 29 U.S.C. 482(c). However, subject’

to. that limitation, the Secretary is authorized to prescribe

rules and regulations for the conduct of supervised elections.

29 U.S.C. 482(b). aks ; |

‘This is done principally by ensuring that incumbent officers

do not control the election committee or otherwise-decide the .

details of the election procedure. Thus, at a supervised election,

the principal details are determined by the. Department of

Labor’s supervisor in consultation with all interested parties at a

pre-election conference. Matters. remainisg unsettled after the

pre-election conference may. be left to a union election com-

mittee, but incumbent officers seeking re-election, as well as

other candidates for office, are not permitted to serve on the

election committee. Where the union’s constitution requires

incumbent officers to perform functions in connection with the

election, the incumbent seeking re-election must perform these

functions under supervision and, upon request, under the ob-

servation of representatives of rival candidates.

. 25

necessary for the Secretary: to control the details of »

the election procedure through supervision of a court-

_ ordered election. The violation destroys the presump-

tion of regularity ‘that would otherwise attach to the

‘union’s conduct of: its own election; the intervention

of an unsupervised election is not sufficient ‘to restore

_it. Even if it cannot be shown in.a post-election in-

vestigation that’ ,the intervening election was con-—

ducted in violation of the Act, there can be ino as-

surance that the unlawfully elected incumbents

forewent the opportunities for manipulation that an

_ unsupervised eléction permits. A laboratory election |

. remains necessary to assure- that the control achieved

by violating the Act in the first election is not per- .

petuated by subtle means in the Second.’ | .

* The. ¢ontinuing ‘public interest in the Title IV remedy, ..

once suit has been validly initiated, was forcefully exp ee

by the court ‘in Goldberg vy. Amalgamated Local Union: Né ol

565, 202.F. Supp. 844 (E.D.N.Y.), where the Secrétary had

filed suit to-compel ‘the holding of a local union election after :

the lapse of ‘more than three rs since the last’ election.

After the suit was filed, the union held an unsupervised elec-

tion. The court refused to dismiss the complaint, saying:

The filing of the complaint under -the procedure out-

lined by Congress sets in operation the governmental ma-

chinery. To that point, the LMRDA gives the labor or.

ganization the opportunity to correct’ and remedy: the

‘ violations. Beyond that point, the‘ ight of the government

to investigate the breakdown offthe democratic processes

is clear. It is not within the pofer of the labor union to

deprive: the government of its right by compliance. The

interest of the public ‘goes beyond adherence to the- form.

The interest of the public has been called into play by

- the failure of the union to act. The substantia] right of.

the Secretary cannot be capriciously brushed . aside. [202° £

F. Supp. at 846.] £

an ®

* So saying, ‘we suggest-no novel principles.’ It is

familiar law that the discontinuance of the particu- |

lar practice challenged does not defeat the govern-

ment’s right to relief against a violation of law, un- “eo

less it is elear that a decree is unnecessary to protect

the public against the consequences of the violation.’

This is such a case. Full protection of the public

interest is not assured by the mere fact that a sub-

sequent election is. conducted, even if the challenged

practice appears to have been abandoned.

- Also relevant is the principle that.when important.

rights have been violated the remedy may go beyond

' restraining the plainly unlawful conduct and prohibit

‘associated acts which would be permissible at the

hands of. others, or even the defendant, had they not

been used to perpetrate the wrong. E.g., United States

v. Bausch & Lomb Co., 321 U.S. 707, 724; May De-

partment Stores Co. v. Labor Board, 326 U.S. 376,

_ 891; Swift & Co. v. Wnited States, 276 U.S. 311. The

effect of the relief asked by the Secretary in these

5 See, ¢.g., Labor Board v. Jones & Laughlin Steel Corp., 331

US. 416; Local 74, Ete. v. Labor Board, 341 US. 707; Porter

v. Lee, 328 U.S. 246; Walling v. Helmerich & Payne, 323 U.S.

87; Walling v. Reuter Co., 321 U.S. 671; ‘Federal Trade Com-

_ mission v. Goodyear Co., 304 U.S. 257;. Labor Board v. Penn-

_ sylvania Greyhound Lines, 303 U.S. 261; Southern Pac. Termi-

nal Co. v. Interstate Commerce Commission, 219 U.S: 498;

United States v. Trans-Missouri Freight Assn., 166 U.S. 290;

Mitchell v. Southwest Engineering Co., 271 F. 2d 427 (C.A. 8); .

Marlene’s Inc. v. Federal Trade Commission, 216 F. 2d 556° .

(CA. 7); Walling v. Mutual Wholesale Food & Supply Co.,

_ 141-F, 2d 331 (C.A. 8); Sears, Roebuck & Co. v. Federal Frade

Commission, 258 Fed. 307 (C.A. 7); Goldberg v. Amalgamated -

Local Union No. 365, 202 F. Supp, 844 (E.D.N.Y.); United

States v. Bates Value Bag Corp., 39 F. 2d 162 (D. Del:).. ee

» cases may be to undo elections not themselves shown’

_ to be illegal, but that is necessary to assure the com-

-. plete extirpation of proven wrongful conduct. Under |

the Voting Rights Act of 1965, a State may not en: 5

force a literacy test, even a lawful one, if such a test”

was used at any time ‘during the previous five years to ©

abridge the right to vote on account of race or color. =

“Congress knew that continuance of the tests and de-

Vices: in use at the present time, no matter how fairly

administered in the future, would freeze the effect of

past discrimination in favor of unqualified white

_ Tegistrants.” South Caroling v. Katzenbach, 383 U.S.

301, 334. And both the registration and the. .voting

process. in areas where persistent violations have

occurred are subject to detailed federal Supervision.

See 42 U.S.C. 1973 et seq. Heré, too, something more

‘than the abandonment of an unlawful practice is re-

quired to overcome the effects of past illegality and

restore democracy. Ava !

It remains’ only to consider whether, within the

. framework of Title TY, there is any adequate alterna-

tive remedy for assuring that the taint of an unlawful

election is thoroughly dissipated, other than directing

a laboratory election notwithstanding an intervening

‘unsupervised election; | | :

We canvass here the possible alternative methods of

_ Suaranteeing representative union leadership in a

situation where the union holds another election fol-

lowing the unlawful one—alternatives to thé Secre-.

271-926—67—__5

tary’s: preferred remedy of an order ‘in the suit

_ challenging the first election directing that a new elec-

tion be conducted under his supervision, without

~ regard to the fact that the union has already held its

: next election.

4, Eupedited proceedings

His ‘ile apparent that, in the ordinary course,

a suit by the Secretary to declare an election void and —

obtain an order directing a-laboratory election will.

more often than not be overtaken by the union’s next _

~~ election before it is prosecuted to its conclusion—as

_ «

- happened in the ‘cases at bar. The Act itself requires

unions to hold elections at least once every three years

(29 U.S.C, 481 (b)).; many unions (including the local

_ involved in No. 57) hold elections -biennially; and

some even conduct annual elections.’ The Secretary —

cannot, under normal circumstances, institute an

“action in the district court ‘until at least six months

after an. election,” and in most cases a trial is neces-

sary since the issues—what procedures were followed,

whether a particular practice was unreasonable i in the -

® At least 3.5 million local ‘union’ members elect their officers

. at intervals of.two years or less. United States Department of

Labor, Union Constitutions and. the Election of Local Union:

Officers (1965), Table 5, p. 22.

10 First, a member must complain to the union. The union

then has three months to render a final decision, and the union

member one month after that to file a complaint with the Sec- ~

retary. 29 U.S.C. 482(a). Sometimes the member awaits the

union’s final: decision, which may take considerably more than

the statutory minimum of three months, before filing a com-

plaint. The Secretary then has sixty days to conduct the admin-

istrative investigation that is required before the. suit be

—e 29 U.S.C. er

" ‘ et

ONS wfptarcare Cees

circumstances, and whether Violation, if established,

may have affected the outcome of the election—usually

involve disputed questions of fact. Thus, many times

even the district court’s judgment may be délayed

until the next regular election. The danger is likely to

be aggravated if unions know thatto moot these suits

they need only delay the’ proceedings until their next |

election. Et sha 3 isa Sy

If appeals are taken, it becomes virtually impossible

to terminate the litigation (including action on an

application for review by this Court) before the next

biennial or triennial union election. To be sure, this

holds true only if the district court refuses to order a

Supervised election and the Secretary appeals; Sec-

tion 402(d) of the Act bars a stay pending appeal of a

district court order directing aljsupervised election.

However, as these cases illustrate, it is not uncommon

for district courts to refuse the Secretary the relief he

asks, and it seems hardly reasonable to suppose that ~

Congress intended no judicial review of lower ‘court

. Tulings sharply curtailing the scope and efficacy of _—

- Title IV." - . ; : |

__ The vital importance to the effective and orderly ad-

~ Ministration of Title IV of permitting the Secretary

to obtain appellate review is well illustrated by the

two cases at- bar. No. 57 involves the nature of the

1 As a matter of fact, it is clear that Congress contemplated

| judicial-review of election orders—which the: mootness holdi

of the court below hobbles. Compare Section 402(d) of the final

Act, which expressly makes election orders appealable, with |

earlier bills providing that orders directing an election not be

appealable (S. 3974, 85th Cong.,.2d Sess., 104 Cong. Rec. 18263,.

and S. 3751, 85th Cong., 2d'Sess.). a fe gs

burden of proof resting on the Secretary to show that

a violation of. the. Act ‘‘may have affected the out-.

come of an election.” * Since the Secretary will not

institute court proceedings unless he believes that the

burden can be satisfied,” the resolution ofthe question

presented will shape the course of future investiga-_

tions, and will in some instances control the decision

whether suit should be filed. So, also, the question in

No. 58, concerning the proper scope of the Secretary’s

complaint, has obvious practical importance for the

whole Title. IV enforcement program. Before. the

. order dismissing portions of the complaint in this .

case, tlie Secretary had successfully maintained in the

district ‘courts his view that a valid complaint from_.

a union- member opens to investigation and judicial

challenge the whole electoral process. Since that de-

“? The same ruling has been reached more recently, on only

slightly different facts, in Wirtz v. Local 66, Glass Bottle Blow-

ers Association, 268 F. Supp. 33 (W.D. Pa.), June 1, 1967, which ,

- involves the same meeting attendance, requirement. Since Local

66 is scheduled to, hold its next regular election in September

1967, it is highly unlikely that an appeal can be completed in

time under the Third Circuit’s mootness holding. 3

** The Interpretative Bulletin issued under the: Act states (at —

29 C.F.R. § 452.16(b)): “Violations of the election provisions

of the Act which occurred in the conduct of elections held

within the prescribed time are not grounds for setting aside.

an election unless they ‘may have affected the outcome.’ The

-Secretary, therefore, will not institute court proceedings upon

‘the basis of a complaint alleging such violations unless he

finds probable cause to believe that they ‘may have affected the

outcome of an election.”” - a =

“* Decisions favorable to the Secretary on this question had

been rendered without opinion in Wirtz v. Local 11, Hod Car-

riers (ruling specifically referred to in 211 F. Supp. 408, at

- 412 (W.D. Pa.));, Wirte vy. Local 611; International Hod Car-

riers’ Union, Civil No. 9512, D. Conn., motion for summary

. —

ee ee

_ Cision, numerous Title IV defendants have raised the

. defense that the complaint went beyond the scope of

the complaining member’s internal. protest.” If: the

Secretary’s view of his duty and authority under Title

_ IV is correct, then he should not be required to

litigate this question repeatedly. On the other hand,

if the decision of the district court in this case was

correct, then the Secretary ‘should not be wasting his

resources by full investigation of election complaints

followed by comprehensive litigation based on his |

investigative findings, Nis

While efforts at expedition might alleviate the

problem to some extent, it is obvious that even expe-

_ dited proceedings frequently cannot terminate a liti-.

gation involving both trial and appeals, as No. 58

illustrates. Had the Secretary sought leave to pursue

an interlocutory appeal from the order dismissing ©

portions of the complaint, it is doubtful whether even

a district court decision could have been rendered on

the merits before the union’s next election. Moreover, |

the courts can. expedite only the judicial, and not the

anterior administrative, proceeding. That limitation

aside, undue haste in the processing of election com-

plaints at the administrative level could actually un-

judgment denied July 15, 1963; and Goldberg v. District Coun-

cil 21, Brotherhood‘ of Painters, Civil No. 30371, E.D. Pa.,

motion to dismiss denied March 31,1962.

499, decided July 28, 1967; Wirtz v. Hotel, Motel and Club

- Employees Union, Local 6, O.A. 2, No. 513, decided July 28,

1967; Wirte.v. Local 9, ete., Operating Engineers, 366 F. 2d

911- (C.A. 10), certiorari granted and decision vacated, May 15,

1967 ‘(see p. 39, n. 29; ‘énfra). which followed the narrow view

of the instant case. as .

‘

TE SAE BRT Bi G6 BLOT ADDR! BIE AT DR A Se RAT RR AN AI A ER pubes

dermine the policies of Title IV. The Secretary may

not bring suit unless and until the union has failed

voluntarily to comply with the law. This requirement,

_as this Court pointed out in Calhoon v. Harvey, 379

U.S. 134, 140, “is in harmony with the general con-

gressional ‘policy to allow unions great latitude in

resolving their own internal controversies, and, where —

that fails, to utilize the agencies of Government most

familiar with union problems to aid in bringing about

a settlement through discussion before resort to the

courts.” * Since settlement efforts frequentl ntly take

time, the Secretary often obtains waivers in order to

permit the negotiations to extend .past the sixty-day

- period allowed by the Act for bringing suit.” Fear of

mootness, however, may -induce the Secretary to file .

suit as quickly as possible, regardless of.the effect on

settlement efforts,’ * while at the same time it may en-

16 Tn. fiscal years 1963, 1964 and 1965, an average of 124 com-

plaints per year were received by the Secrstary, and an average

of 17 complaints were filed in court. See Bureau of Labor-

_ Management Reports, ‘Summary of Operations, 1963, pp. 8, 11;

U.S. Department of Labor, Summary of. Operations, 1964,

Labor-Management Reporting and Disclosure Act, p. 6; .U.S.

Department of Labor, 1965 Summary of Operations, Labor-

Management Reporting and Disclosure Act, p. 7.

17In some cases, the holding of a supervised election is pro-

vided for by the settlement. Considerable time must be taken in

preparing for the supervised election, during which interval the

Secretary preserves his right to file a complaint by obtaining

waivers of thé limitations defense. ~

18 To be sure, settlement. negotiations may continue after the -

filing of a suit. However, the commencement of litigation gen-

erally stiffens the position of the parties and makes settlement

more .difficult. For example, before suit is filed the union may

be amenable to settlement because it wishes to avoid the adverse

publicity of a lawsuit, but this factor, of course, disappears

- once the suit is filed.

| courage the union to engage in protracted negotiations

so as to frustrate judicial enforcement should agree-

_ ment not.'be reached. Either ‘way a climate of volun-

tary compliance is impaired.

2. A new suit challenging the second ‘election

This alternative may be quickly dismissed. Such.a

Suit would be just as likely as the first suit to be over-.

taken—and. hence, under the rule of the courts below,

mooted—by the’ union’s next election. And it would

be no remedy at all in cases (like No. 58) where the

vice of the second election lies, not in the fact that

the union’ continues to impose the restriction chal-—

lenged in the first suit, but in the danger that the

~~ officers elected unlawfully in the’ ‘first election may

have been able to perpetuate their office in the second

through their control of the electoral machinery, with-

out, however, committing “ demonstrable , violation

of law. :

Nor is the futile remedy of a second suit mandated

by the complaint-and-exhaustion Trequirement of the

Act.’ Where, as in No. 57, the union has already re-

fused to change its candidacy qualifications, there

would be little point in requiring a union member -

_ again to file an internal complaint and ‘exhaust inter-

nal remedies, Moreover, a member of Local 153 who

- could not meet the attendance requirement in 1965

_ , would not be likely to renew his attempt to run for

office and then pursue an internal complaint. if dis-

qualified, knowing that the previous attack on the at-

tendance requirement at the 1963 election had failed.

_If, as in No. 58, the second election is not provably

eo ee " on Sth wk ‘ se ,

Maca a ee ee Dae SOON DE Oe ee Re Se OEE tee

7 ,

Swen SE er a eo a

marred by a violation of Title IV, the member —_—

have no basis in the Act for filing any new complaint.

3. An injunction against the holding of another election pend-

ihe ing completion of the Secretary's suit

The Second Circuit has suggested that the Secre-

tary might obtain, pendente lite, a stay of an election

that would moot his Title IV action (see pp. 16-17

and n. 1, supra). This remedy, which has no founda-

tion in the Act, seems completely anomalous. It places

‘the Secretary in the utenable position of asking the

court to maintain in office, beyond the expiration of

their terms, the very union officials whose election he

is challenging as unlawful. It unwarrantedly inter-

feres with the union’s rules prescribing the intervals

at which elections should be held in disregard of the

congressional policy of minimum interference in union

electoral affairs (supra, p. 18). In some cases it may

, even conflict with the Act’s explicit directive that

union electioris be held no less often than every three

years. And it is inconsistent with at least the spirit of —

Section 402(d). That provision: precludes. a stay pend-

ing appeal of an order directing a supervised election,

thus indicating, we think, that Congress did not in-

tend’ that elections should be delayed owing to the

pendency of Title IV litigation.

b Ant injunction against the practice found to violate the Act —

‘Arguably, the Secretary should be free to challenge .

‘not only the election itself, but the unlawful electoral

practice, ; and. to obtain an injunction against the

continuation of the practice in any future election.

However, it in many cases this remedy “—— be wholly —

injanetive relief foun

> dnadequate. It would do nothing to prevent unlawfully

elected officers from perpetuating their office: by con-

trol of the electoral machinery—only a laboratory

election is calculated to eliminate this harmful effect -

of an unlawful election. Beyond this, it is very doubt- _ -

ful that the Act empowers the courts to afford such

-injunctive relief, at least in the kind of case involved’

here. Wirtz v. Hotel; Motel and Clud Employees

Union, Local 6, C.A. 2, No. 513, decided J uly 28, 1967,

Title IV does not expressly provide for injunctive

relief. The only remedy specifically provided in the

Statute is an order’ setting aside the challenged elec-

tion and directing a supervised election. While the

absence of express: provision for injunctive relief igs. —

not, of course, conclusive (cf. United States v. Re-

public Steel Corp., 362 U.S. 482), there is evidence

that the omission here was deliberate. |

' For: one thing, the enforcement provisions of other ©

titles of the Act provide specifically for injunctive

_ Telief. Sections 102, 210, 304, 29 U.S.C, 412, 440, 464.

Particularly relevant here is the enforcement section

of Title III (Trusteeships), which permits the Secre-

tary to obtain “such relief ( including injunctions)

as may be appropriate.”’ 29 U.S.C. 464. Title ITI is

otherwise quite similar to Title IV in its enforcement .

provisions. [t provides: (29 U.S.C. 464) for complaint

by a union member, investigation of the complaint by

the Secretary, a finding of probable cause by the

Secretary to believe there has been a Violation, and

then a civil action by him. It ‘seems unlikely that

the omission from Title IV of the provision for —

in Title IIT was completely

inadvertent. .

36 ;

‘Moreover, several of the bills rejected by the Con-

gress would have expressly atithorized injunctions

against future violations of.the election provisions.

~The -principal House bills—including the version that

passed the House—provided for a civil action “to pre- .

vent and restrain such violation [of section 401].”

H.R. 8342, 86th Cong., 1st Sess.,’ Section 402(a), 105

Cong. Ree. 15707-15708, 15887 ; HLR. 8400, 86th Cong.,

Ist Sess. Both the admiaistration’s Senate bill and

Senator McClellan’s bill also provide for injunctions.

S. 748, 86th Cong., Ist Sess., Section 302(d), 105

Cong. Ree. 1277; S. 1187, 86th Cong., Ist Sess., Sec- *

tion 403(a), 105 Cong. Rec. 2666. Nevertheless, the

final Act did not provide injunctive relief for. viola-

tions of Title IV. |

Perhaps, in some extraordinary eases, a remedy -

not expressly provided in Title IV should be implied

to achieve the overall congressional purposes. Thus, °

for example, when a union held a new election under .

the Secretary’s supervision but refused to. install the

officers elected, suit was filed to compel their installa-

tion.” When ballots were altered before a recount to

change the result of an election, the Secretary filed

suit for the installation of the candidate who had re-

ceived the most votes.” In-these cases, since the elec-

19 Wirtz v. Local 85¢ Laborers’ International Union, D. Ore., -

Civil Action No. 66-221. After a pre-trial hearing, the union” .

agreed .to install the officers elected in the supervised election.

2” Wirta v. Local 36, United Automobile Workers, E.D: Mich.,

S. Div., Civil Action No. 27901. The case was eventually

settled by installation of the properly elected candidate.. The.

problem in that case was similar to one that occurred in‘ the

election of the national president of the International Union

37 |

tion. itself was not tainted by illegality,-to have di-

_ rected a re-run would needlessly have interfered with

the union’s electoral process, contrary to the congres- .

sional scheme. Therefore, it was urged that a proper

order would be one limited to the invalid portion of

the election, t.¢.the installation of officers.” And in

Wirtz v. Local 1752, ILA, 56 L.R.R.M% 2303, 2306

(S.D. Miss.),'the court enjoined the union from post-

election discrimination against the member who had

filed a Section 402 complaint, noting that “‘the Secre-

tary of Labor’s enforcement responsibilities would be

thwarted and the public interest harmed” if a com-

; plainant could not be protected from such reprisal. _

Clearly, .however, the usual statutory remedy: for.

an illegal election—and, as mentioned, in Many cases

the only effective one—is a laboratory election; and.

in the present cases, such relief is appropriate and

should be deemed available.

of Electrical; Radio and Machine Workers in 1964. An investi-

gation by the Secretary of Labor disclosed. that the ballots

had been miscounted. The candidate who had ‘erronéously been

' declared elected resigned, ‘and. his opponent was installed in

. Office. See U.S. Department of Labor, 1965 Summary of Oper-

ations, Labor-Management Reporting and. Disclosure Act. pp.

7-8; 88 Monthly Labor Review 562-565 (1965). ** :

** But in Wirtz v. Teamsters Industrial and. Allied Employees —

Union, Local- No. 73, 257 F. Supp. 784 .(N.D. Ohio) the court

. _ denied a motion to dismiss a complaint alleging, inter alia, that

certain newly-elected officers had been improperly coerced into

resigning immediately following: their installation. There, an

_ adaptation of the statutory remedy would have been unavail-

‘able, since the alleged violation occurred after the election was >

- ©

over. (The case was settled.)

. " ¢

38 7

In sum, within the framework of Title IV, effec-

- tive relief against unlawful elections will in many |

cases be impossible ‘unless the Secretary’s right to an

order directing a supervised election is recognized,

whether or not’ the union has held another election

since the one challenged in the Secretary’s suit. In .

the. circumstances, the Court would be fully justified

in fashioning a remedy appropriate to carry out the.

statutory purpose. Compare United States v. Repub-

- lie Steel Corp., 362 U.S. 482; Texas & N.O.R. Co. V,

Ry.. Clerks, 281. U.S. 548. But no creative effort is

. required here. Nothing in Title IV makes an inter-

yening ‘union election a bar to an order directing a

laboratory election if the previous election was voida-

‘ble: We plead only for a literal application of the -

"statute, faithful to its true purpose.

II, IN NO. 58, THE DISTRICT COURT ERRED IN HOLDING

THAT THE SECRETARY IN HIS SUIT. “MAY NOT CHAL-

LENGE THE GENERAL ELECTION IN WHICH THE VIOLA-

TION COMPLAINED OF OCCURRED, OR CHALLENGE THE

_ ELECTION OF OTHER OFFICERS, BECAUSE THE UNION

MEMBER SPECIFICALLY CHALLENGED THE VIOLATION

‘ONLY AS IT AFFECTED THE RUN-OFF ELECTION HELD

WITH RESPECT TO A SINGLE OFFICE FOR WHICH THE

COMPLAINANT WAS A CANDIDATE wet

In dismissing the appeals in these two cases as

moot, neither court of appeals considered whether

the district court had been correct in its ruling on

. the merits of the Secretary’s complaint. If this Court °

agrees with us that the appeals are not moot, it could

of course remand the cases to the courts below to

a consider the merits. of the appeals. On the other hand, °

it would not be inappropriate to now resolve the im-

portant questions involved, (which we discuss in. this

and the following part of our argument). The issue

_ in No. 58 -especially—whether the Secretary’s suit

may raise issues not specifically: presented in the in-

ternal complaint—is closely related, as will appear,

to the mootness question; and it has been fully con-

sidered by two courts of appeals already.” Moreover,

both questions are extremely important to the admin-

_, 1stration of Title IV'and should be decided promptly

in order to provide guidance in the mounting litiga-

tion under the Act. 1

We begin with No. 58. The issue presented by the

Secretary on his appeal was whether the district court

erred in striking those portions of. the Secretary’s

complaint directed to-the conduct of the general elec-

__-tion on June 8} -1961, and concomitantly, in limiting

the supervised election to a single office, that of Busi-

_ ness Representative.” Fal a

The complaint to the union specifically questioned

only the run-off election held on J uly 13, 1963, for the

ing the office with respect. to which an administrative com-

plaint had been filed. Accordingly, at the joint suggestion of

the parties, the Court, on May 15, 1967, vacated the judgment

below and ordered the suit dismissed as moot,

_™ The run-off election challenged in the union member’s com-

plaint involved only that office since it was the only one as to

‘which the general election had resulted in a tie, requiring a.

‘run-off. Te

oer -

¢. De ts TN PAO gE IF mc

Shite FE)

Pee een Se nor ewe. & anne ee See) Seren |

‘office. of Business Representative. The complaint .

charged that that election: had violated Title [V-in =

that\some members ineligible to vote because of non-

payment of dues had been allowed to vote while others

ineligible on that ground had been prevented from

- voting. The court directed a supervised election limited

‘te a re-run‘ of the run-off election for this post. .

Despite the Secretary’s allegation that the same viola- |

. . tion had oceurred-at the preceding general election,

held on June 8, 1963,’and had tainted the races for all

. offices, the court did not ‘permit the Secretary to.chal-

‘lenge the validity of the general election. In our view

this waserror. a Sis |

% a's ; ‘= ey ;

Ay THE ADDITIONAL ISSUES RAISED IN THE SECRETARY'S COMPLAINT

’ WERE FAIRLY ‘WITHIN THE SCOPE OF THE UNION . MEMBER’S COoM-

. PLAINT TO THE UNION , ore

Title IV, as: already noted, provides that before.

‘filing suit the Secretary of Labor must receive a com-

_’ plaint from a union member who either exhausted his

internal remedies within the union or invoked such

remedies without obtaining a final decision within

‘three months. 29 U.S.C. 482 (a), (b). Although the

language of thé statute is not entirely unambiguous, it

appears that the Secretary’s suit may only question

e ‘the election that was the subject of the union member’s

internal complaint.” Since both the general election

Section 402(a), 29 U-S.C. 482(a),, provides that the “chal-

lenged election {referring to the election challenged by the

union member in. his complaint to the Secretary] shall be pre-

_ famed valid pending a final decision thereon (as hereinafter

provided) *-* *.” The statute goes on to authorize a suit by ©

the Secretary “to set aside the invalid election * *.*” 99 U.S.C.

482(b). The court is directed, if it finds that a violation may

held on June 8, 1963, and the run-off held on July 13,

1963, were part of a single process designed to select.

-the officers of the union for the following three years,

we view both. together as constituting a single ‘élec-

tion” for purposes of the statute.”

This common sense result is strongly suggested by

the scheme of the Act. Title IV provides the exclusive

remedy “for challenging an election already con> —

- ducted” (Section 403) and it permits a protest and

court challenge only after. the election has been com- |

‘pleted. See Wirtz v. Local 30, International Union

of Operating Engineers, 242 F. Supp. 631, 633

(S.D.N.Y.) (citing. this Court’s decision in Calhoon

v. Harvey, 379 U.S. 134); Wirtz v.. Great Lakes Dis-

trict: Local 47, Masters, Mates & Pilots, 61 L.R.R.M.

+2010 (N.D. Ohio). An election that requires: a run-

off has not been completed. Moreover, Section 402(c)

‘provides for judicial relief only if it is-shown that

a violation of the Act “may have affected the outcome

of an election.” Obviously, the outcome of an election

which necessitates a run-off cannot be known until

the completion of the run-off. Yet if the run-off in .

a case like No. 58 were viewed as a separate election, .

the complainant would have to lodge his internal

. union -protest prematurely—before the run-off was

held—since more than the 30-day period provided

in respondent’s constitution for ‘the filing of election

have affected the outcome of “an election,” to declare “the

_ electidn” void and direct the’conduct of a new election under

the,supervision of the Secretary. 29 U.S.C. 482(c).

** Webster’s Third International Dictionary defines “election”

as “the act or process of choosing a person for office, position,

or membership by voting.” |

a he 8 wee

o = -

protests ini dinate the general election and the

run-off.”

. Defining “election” in this manner is . fully con-

sistent with the internal exhaustion requirement of

Title IV, which was designed to preserve “a maximtim —

‘amount of independence and self-government by. giv--

‘ing every international union the opportunity: to |

. eorrect improper local elections.” 8. Rep. No. 187, =

“86th Cong., Ist Sess., p. 21; see supra, p. 18. When

_ the international union received a complaint that

_ the local had been following a practice which resulted

in improperly qualifying certain members to vote,

- the international should have realized that the same

‘practice had probably: been followed in the general

election which preceded, and necessitated, the run-

off. And any serious investigation of. the complaint

would have shown that the Secretary Treasurer’s

practice of subsidizing the eligibility. of some union

members was enforced, not only at the run-off election,

but also at the general election, held only six weeks

previously. Thus, the policy of the exhaustion require-

ment—giving the union a chance to clean its ‘own .

house—is served by permitting the Secretary to sue —

in. respect of the general election on the basis of .

complaint about the conduct of the run-off.

% We do not mean to imply that a run-off cannot be sepa-

rately considered for any purpose under Title IV. If purely

procedural irregularities are involved (e.g., denial of a secret

ballot, or failure to give the 15-day statutory 1fotice), then

the’ run-off may be the only defective part of the election,

and the only part which requires corrective action. However,

in the present case, the violations infecting the run-off were

merely the continuation of the violations permeating the

general election, and attributable to the same cause.

“ - ate

' Once it is acknowledged that the run-off election

was an integral and inseparable part of the general

election which necessitated it; then the question arises

whether the Act’s internal-exhaustion ‘requirement

provides any justification for restricting the Secre-

tary’s suit to the particular office concerning which

. complaint was made. We submit’ that the purpose of _

the exhaustion requirement is not undermined by

permitting the Secretary to question the election for

other offices besides the one specified in the internal

complaint, particularly where, as here, the same viola-

tions were alleged with respect. to those other offices.

The international cannot complain, in these cireum- *

stances, that it was deprived of an opportunity for

voluntary correction by being confronted with’ the

violation for the first time in the Secretary’s suit.

The illegality was fully disclosed by the internal com- |

plaint, albeit it focused only ona single union office.

There might be merit in the argument that the Sec-

_Tetary’s suit is limited to the office as to which an

internal complaint was: made—despite the fact that

the violation specified in the complaint affected other

offices—if the Secretary’s sole function in Title IV

litigation .were to vindicate the rights of a disap-

pointed candidate. On this theory, since the com- |

plaining member in No. 58 asserted only his interest

| in running. for the office of Business Representative,

the Secretary’s suit on his behalf should be similarly

limited.. However, as already explained (supra, pp.

17-19), the Secretary has a:broader role in Title IV

litigation: to represent the interest of all the mem-

bers of the union in having officers responsive to their ~

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needs and to assert the public interest in democratic

labor unions. As this Court noted in Calhoon v. Har-

vey, 379. U.S. 184, 140, ‘Congress. decided to utilize |

the special knowledge and discretion of the Secretary

of Labor in order best to serve the public interest.”’ |

. The “special knowledge” of the Secretary would be

poorly utilized if he could -function under Title IV

only as the champion of a particular complainant.

B. -EVEN UNRELATED VIOLATIONS, “DISCOVERED IN THE COURSE OF

THE SECRETARY’S INVESTIGATION OF A UNION MEMBER’S COM-

PLAINT, MAY BE RAISED IN THE SECRETARY'S ACTION

While. we have suggested that the question of judi-

‘eial power to remedy the additional violations chal-

lenged by the Secretary in his suit in No. 58 may be

decided on the ground that they were within the scope

of the internal complaint, an alternative ground of

decision suggests itself—one that we believe superior

from. the standpoint of statutory policy and sound

administration. We deem it neither appropriate nor

necessary to the scheme of Title IV that the Secre-—

tary be precluded from invoking the aid of the courts .°

to correct any violation that he discovers in the course

of. investigating a union member’s complaint. More- ae

over, we think the trial of election gases should not be

burdened with difficult collateral questions as to

whether a particular violation may properly be con-

sidered comprehended within the allegations of the

internal complaint. Here, an affirmative answer to the

question is readily forthcoming, but .in other cases |

it will be more difficult and we do not believe that.

wd ed ene

the terms or policies of. Title IV requires the coat to

indulge that debate.

- - The language of the statute itself imposes no. re-

‘ - strictions on the scope of the Secretary’ s suit. Indeed,

it does not even explicitly require that the. suit chal-

lenge the particular violation specified in the union

member’s internal complaint; the Secretary is em-

powered to bring suit if, after investigating the com-

plainit, ‘‘he finds probable cause to believe that: a vio-

lation of this subchapter has occurred.’ -29- US.C.

482(b) (emphasis added). This general language was

not inadvertent. One of the bills considered by Con-

gress provided that when a member complained to the

Secretary of a violation of ‘the Act, the Secretary

was to investigate -“‘such- allegation,” and. bring an

action only if he found ‘‘nrobable cause to believe that -

such allegation is true’’ (S. 1002, 86th Cong., 1st

Sess., 105 Cong. Ree. 2067). The Conference Com-

mittee adopted the broader’ view, reflected j in the Sen- .

_ate Report, that, the Secretary was “to investigate.

‘the complaint and’ determine whether-there-is prob-

able cause to believe that an election was not held

in conformity with the requirements of the bill.’ ” (S.

Rep. No. 187, 86th Cong., Ist Sess., p. 21.) .

| Congress provided a sixty-day slike for the in-

vestigation of election complaints and gave the Sec-

retary sweeping investigative powers. These powers

are far'more extensive than those which would have

been available to an individual union member under

.the private enforcement scheme of the House bills

(see Wirtz v. Local 191, Teamsters, 321 F. 2d 445

' (CA, 2); Local 57, International Union of 28

would be unnecessary if the Secretary’s responsibility

were merely to verify the allegations of an individual |

member’s protest. Congress could not have intended

so to restrict the Secretary when it must have been

anticipated. that, by. the use of his broad investigative

powers, he would frequently discover other serious

violations of the Act hidden from a complainant or.

overlooked by him. To confine his challenge of an

election to those violations complained of by the

union member would disable the Secretary from using .

the fruits of his investigation to remedy the violations

disclosed thereby, and would tend to frustrate the

congressional purpose of ensuring free and honest

elections. For example, a member might complain i

that he was improperly denied the right to vote. The

Secretary’s investigation might disclose that, un-.

known to the protestant, the ballot box had been-

stuffed. Under the rationale of the district court’s

decision, the Secretary would be powerless to act on

the latter violation. The decision would place a pre- ~

mium on the ability: of the union officers to conceal

violations from their members.

The facts in No. 58 well illustrate the incongruity |

of limiting the Secretary to the precise allegations. of

the complaining’ union member. The complainant,

Dial, was apparently able to secure evidence that nine

ineligible members had been permitted to vote in the

run-off election of July 13, 1963. The Secretary, upon

- investigation, quickly ascertained that a vastly larger .

number of ineligible members had been permitted to —

vote in that run-off election, and, further, that the

cause of this disregard of the union’s own constitu-

tion was the Secretary-Treasurer’s practice of ‘‘car-

rying” some delinquent members by making it ap-

pear that they had met their dues obligations when

“in fact they had not. An examination of the records

_ which disclosed the true status of respondent’s mem-

bers with respect to the payment of dues also dis-

closed that ineligible members had been permitted to

‘be candidates, as well.as to vote, and that the viola-.

tions complained of had permeated the general elec-

tion as well as the run-off. It is doubtful whether the

complainant ‘could have gained access to these rec-

ords to support his ‘election protest. It may. ‘be as-

sumed that he was unaware of the ineligibility of the

candidates who opposed him. Congress, having given |

ie Secretary broad investigative authority, cannot

ave intended that he be hamstrung by the ignorance

of the complaining union member, by the artlessness

of his protest, or by the lack of evidence available -

to him in support of his objections.” :

* The role of the Secretary may be compared to that of the

General Counsel of the National Labor Relations Board in |

investigating unfair labor practice charges under the Taft-

Hartley Act. While the Board’s General Counsel (like the

Secretary, under the Labor-Management Reporting and Dis-"

closure Act) can issue a complaint only after receipt of. a

charge, he may. on his own initiative include in his complaint

-unfair labor practices concerning events which have occurred

after the original charge: was filed with him. The Supreme

Court discussed the role of the Board in unfair labor practice

proceedings—in language equally applicable to the function of

the Secretary’ of Labor under Title IV—in Labor Board v.

Fant Milling Co., 360 U.S. 301, 307-308:

A charge filed with the Labor Board is not..to be meas-

ured by the standards applicable to a pleading in a private

Til atta ‘insti ce Mais iS Ai hae, pay Ati eres hein L

Finally, the practice of the Secretary in’ investi-

gating fully the conduct of every election concerning

_which he receives 4 complaint, and in including in

his suit. allegations of all uncorrected violations that

are substantial,.is not opposed to the policy—whkich

underlies the requirement that a union member pro-

fest the conduct of an eléction internally before filing

a- complaint with the Secretary—‘“to allow unions

- . great latitude in resolving, their own internal con-

troversies * * * before resort to the courts.’” Calhoon -

vy. Harvey, 379 U.S. 134, 140. For, it is also the Secre-

_-tary’s policy to notify the union in advance of filing

‘suit of all violations disclosed by his investigation, so:

that the union may take voluntary corréctive. action.

Thus, in No. 58, at the conclusion of the Secretary’s

investigation, both the respondent loval union and

the international were advised of his discovery of

the mass inéligibility of voters and candidates in both .

phases, of the election and of the underlying cause.

“When -the international requested particulars, the

lawsuit. Its: purpose is merely to’set in motion the machin-

ery of an inquiry. * * * The responsibility of making that

inquiry, and of framing. the issues in the case is one that.

Congress has imposed upon the Board, not the charging

party. To confine the Board in its inquiry and in framing

the ‘complaint to the specific matters alleged in the char

would reduce the statutory machinery to & vehicle for the

vindication of private rights. This would be alien to the

basic purpose of the Act. The Board was created not to

adjudicate private controversies but to advance the pub-

lic interest * * *. . ,

Once its jurisdiction is invoked the Board must fe left

free to make full inquiry under its broad investigatory

‘. power in order properly to discharge the duty of protect-

ing public rights, which Congress has imposed upon it.

ihe anh mniin? bis tellin ath peal. Ser paraill Malan ise is

m ,

= = = tia ee ee

49°

* Secretary’s attorneys met with attorneys represent-

* ing the international and . furnished them with de-

tailed information concerning the Secretary’s find-

ings. Yet, the intetnational refused to: recognize or‘

correct any violation in the general election of June

8, 1963. The union had. notice of all the violations

disclosed by the investigation and deliberately | fore-

went an opportunity to take voluntary remedial action

before suit was filed—no less than if the internal

complaint had ki cee challenged the additional

violations. ° - .

In sum, to confine the Secretary’s suit ‘either to the

precise violations alleged in the internal complaint

or -evén to violations within the general scope of that _

complaint would unwarrantedly and. unnecessarily

impede the congressional goal of union demoeracy.

dH. IN NO. 57, THE DISTRICT COURT ERRED IN NOT FINDING

evel THE 75-PERCENT ATTENDANCE REQUIREMENT

*“MAY mare AFFECTED’’ THE OUTCOME OF THE 1963

BLEGTION r : oe

Section 402(c) of the Labor-Management Report-

ing: and Disclosure Act of 1959, 29 U.S.C. 482(c),.re-

quires the court to void an election tainted by a viola- -

tion of Section 401 which “may have affected the

outcome.” Congress déliberately chose thi¥ language

_to relieve’ the Secretary of the burden’ of. showing

that a violation actually did affect the result. S. 1555,

* the bill passed by the Senate, contained the “may

' have affected” language. 105 Cong. Rec. 16150. H.R. *

8342, the bill passed by the House, as well as the

Kennedy-Ervin bill as originally -introduced in -the

~~ Toe ‘

~ + niay Netee Alig he EPA IE ad Pe toe

| Senate (S. 505, 86th Cong., 1st Sess., 105 Cong. Ree.

892), required a showing that the violation “affected”

‘the outcome. 105 Cong. Ree. 15887. Faced with a

| choice between these formulations, the Conference .

| Committee adopted the “may have affected’’ language.

4 Conf. Rep. No. 1147, 86th Cong., Ist Sess., pp. 33-35.

" wh

nator Goldwater explained (105 Cong. Ree. 19765) :

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

- duced, authorized the court to declare an elec-

tion 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 actuality o

- would be so great as to render the professed

eee \ remedy practically worthless. Minority’ mem- |

bers in committee secured an amendment

-eorrecting this glaring defect and the amend-

ment is contained in the conference report. -

It is hardly debatable that the 75-percent attend-

outeome.of the 1963 election. It rendered more than

_ 97 percent of the membership ineligible to stand for

union office, leaying only ten eligible members in a

union of 500 members. [ndeed, no candidates were

even nominated for four of defendant’s eight elective

offices (recording secretary and three trustees),° and

four members who were themselves ineligible under

“the 75-percent attendance requirement were appointed

. to those positions in violation of the union constitution

and bylaws and of Section 401(b) of. the Act, 29

U.S.C. 481(b), which requires a union to ‘elect its

officers.”’ ;

So drastic a limitation of eligible candidates can-

pen)

, a

et a lle ai ye a8

not. be assumed to have had no probable or possible

effect on the outcome of the election. Here, as it

happens, one candidate who was actually nominated—

John L. Miller, who filed the complaint ‘that trig-

gered the Secretary’s suit—was disqualified from run-

ning by reason of the challenged attendance require-

ment. And surely the Second Circuit ruled correctly

in Wirtz v. Local Unions 410, Etc., 366 F. 2d 438

(C.A. 2), that any exclusion of willing candidates .

from. the ballot may affect the election’s outcome. As

the court explained (366 F. 2d at 443) :

_ The proviso was intended to free unions from

the disruptive effect of a voided election unless

there is a meaningful relation between a viola-

tion of the Act and results of a particular elec-

tion. For example, if the Secretary’s investi-

gation revealed that 20 percent of. the. votes in

an election had been tampered with; but that all

officers had won by an 8-1 margin, the proviso

should prevent upsetting the election. Compare

Wirtz v. Local 11, International Hod Carriers,

211 F.. Supp. 408 (W.D. Pa., 1962). But in the

eases at bar, the alleged violations caused the

exclusion of willing candidates from the bajlots.

In.such circumstances, there can be no tangible

evidence available of the effect of this exélusion

on thg election; whether the outcome would

have;been different depends upon whether the

suppressed candidates were potent vote-getters,

_whethér more union members would have voted

had candidates not been suppressed, ~and so

forth. Since any proof relafing to effect on out-

come must necessarily be speculative, we do not...

'. think ‘Congress meant to place as stringent a.

~’ burden on ‘the eewery as. the district niche ¥

‘imposed here.

But we do not rest on that circumstance. N men

*it is impossible to establish whether additional candi-

dates would have run even if thé attendance require-

‘ment had -not been in effect or whether ‘those

- candidates would, have lost if they’ had run. Such

questions are hardly susceptible of proof; the statu-

‘tory test of ‘“‘may have affected” was designed to

avoid such elusive and treacherous inquiries.

In sum, any mass disqualification of candidates, we

suggest, satisfies the “may have affected’’ test and

. » likewise any disqualification ‘of avowed candidates.

Under either standard, the district court here erred in |

‘ finding that the unlawful attendance requirement was

beyond its remedial powers under Title IV. -

saa!

PEAS RR BA Cy a

ee Pare ee _

- .

ms)

; CONCLUSION :

The judgments of the court of appeals should be

. &

THUvRGOoD MaRSHALL,

Solicitor General.

Cart Earpiey, | a2

Acting Assistant Attorney General.

‘ Louis F: CLAIBORNE,

; RicHarp A, Posner,

_ Assistants to the Solicitor General. -

Aan §, ROsENTHAL,

Roserr V. Zener. ONee ae

af ? | . Attorneys.

CHARLES DonauHug, : se

_ + Solicitor, . |

Epwarp D. FRIEDMAN,

Deputy Solicitor, |

JAMEs R, BEarrp,

_ Associate Solicitor,

Beate Biocon, *

Attorney.

| Avcusr 1967:

APPENDIX

Statutes INVOLVED

The Labor-Management Reporting and Disclosure

Act of 1959 (73 Stat. 519, 29 U.S.C. 401, et seq.) pro-

vides in pertinent part: » .

Sec. 2. (a) The Congress finds:that, in the

public interest, it continues to be the responsi-

bility of. the. Federal, Government to protect

‘ employees’ rights to organize, choose their own

representatives, bargain collectively, and other-—

wise engage in concerted activities for their

_ mutual aid or protection; that the relations be-.

tween employers and labor organizations - and

the millions of workers they represent have a

substantial impact on the commerce of the

Nation; and that in order to aceomplish the

objective of a free flow of commerce it is essen-

tial that labor organizations, employers, and

their officials adhere to the highest standards

_ Of ,responsibility and ethical conduct in ad-~

ministering the affairs of their organizations,

particularly as they affect labor-management |

relations. — ages

_ (b) The Congress further finds, from recent

investigations in the labor and management

fields, that there have beén a number of in-

. Stances of breach of trust, corruption, disregard

of the rights of individual employees, and other

failures to observe high standards of responsi-

bility and ethical conduct which require further

and supplementary legislation that will afford

necessary protection of the rights and interests

of employees and thé public generally as they

relate ‘to the activities of labor organizations,

(55)

. e ci “ %

Fo AS Rl Ris RE Be yt 8 Bn et ed eS i tae,

3 employers, labor relations consultants, and their.

: _ officers-and representatives. |

: (c) The Congress, ‘therefore, further finds

and declares that the enactment of this Act is

‘necessary to eliminate or prevent improper |

practices on the part of labor erganizations,

employers, labor relations, consultants, and their

officers and representatives which. distort and.

Relations Act, 1947, as amended, and the Rail-

way Labor Act, as amended, and have the tend-

eney. or necessary effect of burdening or

obstructing commerce by (1) impairing the effi-

ciency, safety, or operation of the instrumen-

talities of commerce; (2) occurring in the

current of commerce; (3) materially affecting,

restraining, or controlling the flow of raw ma-

terials or manufactured or processed goods into

or from the channels of commerce, or the prices

of such materials or goods in commerce; or

causing diminution of employment and wages

in such volume as substantially to impair or

disrupt the market for goods flowing into or

_ from the channels of commerce. a

* * * * *

Src. 401. (a) Every national or international

labor organization, except a federation of na-

tional or international labor organizations, shall -

elect its officers not less often than once every

five years either by secret ballot among the

members in good standing or at a convention OL .

delegates chosen by secret ballot. a

(b) Every local labor organization shall elect

its officers not less often than once every three -

years by secret ballot among the members in”

good standing. . Ao

ganization, except a federation of national. or -

international labor organizations, and every

local labor organization, and its officers, shall

be under a duty, enforceable at the suit of any

bona fide candidate’ for office in such labor

5 . pais

Se Sabre tints EAR et TM Site

organization in the district court of the United

States in which such labor organization main-

tains its principal office, to comply with all rea-

. Sonable requests of any candidate to distribute

by mail or otherwise at the candidate’s expense

campaign literature in aid of such person’s can-

didacy to all members in good standing of such

labor organization and to refrain from diserimi-

nation in favor of or against any candidate

with respect to the use of lists of members, and

whenever such labor organizations or its officers

authorize the distribution -by mail or otherwise

to members of campaign literature on behalf of

any candidate or of the labor organization itself

with reference to such election, similar distribu-

tion at the request of any other bona fide candi-

‘ date shall be made by stich labor organization -

' and its officers, with ‘equal treatment as to the

. expense of such distribution. Every bona fide

candidate shall have the right, once within 30

days prior to an election of a labor organization.

in which he is a candidate, to inspect.a list econ-

taining the names and last known addresses of

all members of the labor organization who are

subject to a collective bargaining agreement re-

quiring membership therein as -a condition of

employment, which list shall be maintained and

kept at the principal office of such labor organi-

zation by a designated official thereof. Adequate

safeguards to insure a fair election shali be

provided, including the right of any candidate .

to have an observer at the polls and at the

counting of the ballots. |

(d) Officers of intermediate bodies, such as

general committees, system boards, joint boards, -

or joint councils, shall be elected’ not less

often than once every four years by secret ballot

among the members in good standing or by

labor organization officers representative of.

— members who have been elected by secret .

ballot. Sy : 3

(e) In any election. required by this section

Piglsiiaciaites swiebbe ETET °

SB eibev res a

ee eee

which is to be held by secret ballot a reason-

- didate and to hold office (subject to section 504

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, ar improper interference or Tre-

_ prisal of any kind by such organization of

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

ment ‘to such organization ‘pursuant to his

-yolfintary authorization provided for in a col-

-Jective bargaining agreement shall be declared

ineligible to vote or be a candidate for office -

in such organization by reason of alleged delay

or default in the payment of dues. The

votes cast by members of each local labor

organization shall be counted, and the results

published, separately. The election officials

designated in the constitution and bylaws or

the secretary, if no other official is designated,

shall preserve for one year the ballots and. all. -

other records pertaining to the election. The.

election shall be conducted in accordance. with

the constitution’ and bylaws of such organiza-

tion insofar as they are not inconsistent with

the provisions of this title. :

(f) When officers are chosen by @ convention

of delegates. elected by secret ballot,-the conven-

tion shall be conducted in accordance, with the

constitution and bylaws of the labor. organiza-

tion insofar as they are not inconsistent with

nated in the constitution and: bylaws or .the

secretary, if no other is designated, shall pre- :

~ "

cs x itediad: Keys _

' Weel E lt Mihai SCE ONAL pe HOA Ba .

Pictu: edema ES

serve for one year the credentials of the dele- |

gates and all minutes and other records of the

convention pertaining to the election of officers.

(g) No moneys received by any labor organ- - |

ization by- way of dues, assessment, or similar.

levy, and no moneys of an employer shall be

contributed or applied to’ promote the can-

didacy of any person in an election subject to

the provisions of this title. Such moneys of a

labor organization may be utilized for notices,

factual statements of issues not involving can-'

didates, and other expenses necessary for the

holding of an election.

(h) If the Secretary, upon application of

~ any member: of a local labor organization, finds

after hearing in accordance with the Adminis- °

trative Procedure Act that the constitution and

bylaws of such labor organization do not pro-—

vide an adequate procedure for the removal of

an elected officer guilty of serious misconduct,

such officer may be removed, for. cause shown

and after notice and hearing, by the members

in good standing voting in a secret ballot con-

ducted by the officers of such labor organization

in accordance with its constitution and bylaws

insofar as they are not inconsistent with the

provisions of this title. .

(i) The Secretary shall promulgate rules and

regulations prescribing minimum standards and

procedures for determining the adequacy of the

removal procedures to which reference is made _

in subsection (h). phe alae

‘ Sec. 402. (a) A member of a labor organiza-

on— : :

(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 available remedies

without obtaining a final decision within three

_ ealendar 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 (including

- violation of the constitution and bylaws of the’:

labor organization pertaining to: the election

and removal of officers). The challenged elec-

‘tion shall be presumed valid pending a final |

- decision thereon (as hereinafter provided) and —

in the interim the affairs of the organization

shall be conducted by the officers elected or in

such other manner-as its constitution and by-

laws may provide. :

(b) The Secretary shall investigate such

complaint and, if he finds probable cause to

believe that a violation of this title has occurred.

and has not been remedied, he shall, within

- sixty days after. the filing of. such complaint,

bring a civil action against the labor organiza-

tion 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 con-

- duct of an election or hearing and vote upon

the removal of officers under the supervision of

the Secretary and in accordance with the pro-

visions of this title and such rules and regula-

a as the Secretary may prescribe. The court .

ll have power to take such action as it deems

proper to preserve the assets of the labor

- organization. - :

dence 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 ae eae

_ (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 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 organi--

_ of section 401,

€

zation. The Secretary shall promptly certify to -

the court the names of the persons elected, and

the -court shall thereupon enter a decree de-

claring such persons to.be the officers of the

bor organization. If the proceeding is for the

removal of officers ‘pursuant to subsection . (h)

results of the vo

decree declaring

the Secretary shall certify the

and the court. shall enter a

whether such rsons have

. been removed as officers of the labor organiza-

tion. : :

(d) Amorder directing an ‘election, dismiss-

ing 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. -

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 ré

or bylaws, except

quired by-its own constitution

as otherwise provided by this

title. Existing rights and remedies to enforce

zation with respect to elections prior to the .

conduct thereof shall not be affected by the

provisions of this title. The remedy provided by

this title for challenging an election already |

_ conducted shall be nae

* *

exclusive.

Z * * 7

Sec. 601. (a) The Secretary shall have power

when he believes it necessary in order to deter-.- . -

mine whether any person ‘has violated or ii”

about to violate any provision of this Act (ex-

| interested persons ‘or officials concerning the

facts required to be shown in arly report re-

-\ quired by this Act and concerning the — .

for failure or refusal to file such a repo

any other matter gghich he deems to be a

‘priate as a result of such an investigntion

(b) For the purpose of any investigation .

provided for in this Act, the provisions of seca

tions 9 and 10 (relating to the attendance of

witnesses and the production’ of books, papers,

- gion Act of September 16, 1914, as amended --

. (15 U.S.C. 49, 50), are hereby made applicable

to the. jurisdiction, powers, and duties of .the

Secretary or any officers designated by him.

o ° Me

‘

« =

5.8. GOVERNMENT PRINTING OFFICE, 1967

> ‘

®s, . od

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.