# Petition for a Writ of Certiorari — Wirtz v. Glass Bottle Blowers > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386412_0121%3A4 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for a Writ of Certiorari - **Published:** January 1, 1968 - **Citation:** 389 U.S. 463 ## Text INDEX © | Opinions below - - - - ---- ee eee eae Base takes GR ae . Jurisdiction... .......:...: \ 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......'---~ 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, ud m1 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. .---- 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 4 Congressional Material: Conf. Rep. No. 1147, “g6th Cong., Ist Sess... .-,---- ’ PE, BOO, FEE 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 ©. * = 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 ae 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 : eo Jy \ es . 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 aD oo 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 ss ; 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. >e . 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 ks . 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 27 » 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 .. w _ « - 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 or " ‘ et ONS wfptarcare Cees 29 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 31 _ 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 , i. . 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 — 2 injanetive relief foun 35 > 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, ° 39 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 41 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 43 ' 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 ~ eee eee oe = ry ae 4 . ee et CSS ASS PR Ry 4 La Lae s ees ea ae = Pe TAT Pe BA A ie ee eee ea atti tt ttt ii 4 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 45 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 46 ing iii v. Wirtz, 346 F. 2d 552 ©. A..1)), - 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 47 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- “ance ‘requirement in No. 57 ‘‘may have affected” the © 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- ‘ ®s, . od --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386412_0121%3A4. Public record. Not legal advice.