Appendix — Wirtz v. Local Union No. 125

Supreme Court brief1968

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APPENDIX A

Unirep States Court or APPEALS FOR THE SIXTH

No. 17,344 .

W. Witiarp Wirtz, Secretary or Lazor, UNITED

Srates DEPARTMENT oF LABOR, PLAINTIFF-APPELLANT |

V. ‘

Pep 2 | |

Locat Union No. 125, Lasorers’ INTERNATIONAL

Union or NorrH AMERICA, AFL-CIO, DEFENDENT-

APPELLEE ee : ;

Orver Vacatine JupceMENT AND REMANDING WiTH

INSTRUCTIONS ane

The Secretary of Labor brought this suit under

Section 402 of the Labor-Management Reporting and

Disclosure Act, 29 U.S.C. § 482, to challenge the

validity of a union general election held in June,

1963, and a runoff. election held the following month.

The district court, in an opinion reported at 231 F.

Supp. 590, dismissed the’ Secretary’s complaint inso-

far as it dealt with the general election on the

‘ground that internal union procedures had not beén

_ exhausted in an ‘effort to correct the alleged irregu-

larities in that election, and the Secretary here con-

_ tests the propriety of that dismissal. |

. Subsequent to the decision of the trial judge, a

general election was held by.the union in June, 1966,

- The present: union officers hold their positions pur-

suant to this 1966 election. and not the election chal-_

248-411—67——_2 (9)

TSA RY ROAR

| eeaiiiaiae START RA cE

-10°°

lenged by the. Secretary. Appellee contends, and the

court agreés, that this fact renders moot the question

on appeal, since the statutory remedies for election-

irregularities can sérve no purpose here in light of —

- the subsequent election which has .been held. To

prevent the district court decision herein held to be _

unappealable from serving. as a precedent, the court

* will not dismiss the appeal as requested by appellee,

but will vacate .thé judgment. of the district court

dismissing a portion of the Secretary’s suit and will ~~

. remand with instructions to dismiss the complaint as

moot insofar as it rélates to the 1963: general elec-

tion. ‘See United States v. Munsingwear, 340 U. S.

36 (1950). |

The court deems. it ippropriate to cite here the

_- following observation of: the Second Circuit in the

cases of Wirtz. v. Local Unions 410, 410 A, 410 B &

— 410 C, International Union of Operating Engineers ...

"and | Wirtz v. Local 30, International Union of Oper-

pit Engineers, decided August:1, 1966:. O

As these cases illustrate, it is the delays inci-

dent. to civil cases in the district courts which

create ‘the substantial ’ likelihood that subse--

quent: union elections: will moot title. IV cases’ .

prior to appellate review.- To prevent recur-

rence ofsuch delays, we think the district

: * eourtS should expedite. the trial of title IV

cases to the greatest extent possible..

7 Tt is OxperED that the “judgment of the district

court dismissing the portion of the Secretary’s com-

.plaint dealing with the 1963 general election is va-

cated, and the case is remanded with instructions that

‘said portion of the complaint be dismissed as moot.

ENTERED BY ORDER OF THE Court

‘Cari W. REUss, york.

_ APPENDIX B

United States District Court Northern District of

: Ohio, Eastern Division ile

Civil Action No. C 64-99

W. Witiarp Wirtz, SECRETARY OF Lasor, UNTTED

STATES DEPARTMENT OF Lasor, PLAINTIFF

| v.

Loca Union No. 125, INTERNATIONAL Hop Carriers’

_ Bumping AND Common LABORERS’ Union or AMER-

TOA, DEFENDANT

‘ DEFENDANT’s MOTION TO Dismiss Part OF THE

~ CoMPLAINT

- CONNELL, Chief Judge 7

— On February 7, 1964, the Seiretiry: of Labor. §

brought complaint against the defendant, union under

the Labor-Management Reporting and Disclosure Act

of 1959, 73 Stat. 519 et seq., 29°U.S.0.A. § 401-530,

hereinafter referred to as LMRDA: The plaintiff

seeks to void the election of. officers in 1963, compel

a new election under the aegis of the federal govern-

ment, and to restrain those presently holding office

from disposing of the assets of the union..

. From the complaint, the allegations of which we

“must accept as true for the purposes of this motion,

we recognize these uncomplicated facts which have .

brought this ease here. On June 8, 1963, the union

‘ held ‘an election; all offices were filled except ‘that of

Business Representative, where the vote ended in a tie.

aan, a runoff election was held on J uly 18,

(11)

PAL TT ne

e-.

1963 for that office alone. - “After this itieatiiai a mem-

ber in good standing (as yet unnamed) lodged a pro-

* . test with the union against the conduct of that elec-

tion. Having received a denial of his protest, he filed

a timely complaint with the Secretary of Labor, alleg;

ing violations of 29- U.S.C.A. § 401. After investiga-

‘tion and consideration, the Secretary instituted this

action which complains not only of irregularities in

the conduct of that run-off am, but also attacks

the first election. |

The defendant now moves to Matlin that portion of

the complaint which is directed to the election of

June 8, 1963, qn the ground that the statute (29

USC. : § 482(a)? permits suit by the Secretary only

at the instance of: a complaining ‘member who. has

exhausted his internal avenues of protest. There is

no allegation that a member complained internally

about the conduct of that June 8 election. The plain-

tiff resists the motion on. three grounds: (1) that the

run-off election was such an integral part of the whole

1$§ 482. Enforcement—Filing of complaint ; presumption of

validity of challenged election .- ,

(a) A member of a labor organization— ;

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

constitution and bylaws of such ‘organization and of any:

parent body, or. :

(2) who has-invoked such available remedies without ob- °

taining a final decision within three calendar months after

their invocation, may file a complaint with the Secretary

within one calendar month thereafter alleging the violation

of any provision of section 481 of this title (including

violation of the constitution and bylaws of the labor organi-

zation pertaining to the election and removal of officers).

The challenged election shall be presumed valid pending a

final decision thereon (as heréinafter provided) and in the

interim the affairs of the organization. shall be conducted

by the officers elected or in such'other manner as° its con-

stitution and bylaws may provide.

’

Re ree nereny meneame —

election that complaint against it reaches to the entire

election; (2) the legitimate inquiry by the Secretary

addressed to the election of July 13, 1963, uncovered

irregularities which must be correeted in the interest

of the public; (3) The exhaustion of remedies is not

an absolute requirement, so the Court in its discretion

is empowered to disregard the absence of internal at-..

tack upon the election of.June 8. . )

We cannot agree with the Secretary that exhaustion

of the member’s right of protest within the union

‘against the run-off election operates to bring the whole

election under the scrutiny of the Secretary and the

jurisdiction of this Court. The plaintiff argues .

strongly that the two polls are but two elements of a

single transaction, so that attack by the member upon’

the balloting on July 13 is really an attack upon the .

_ entire election. To support this contention, the plain-

tH directs the Court’s attention to Webster ’s New

Collegiate Dictionary 761 (1961), which defines ‘‘run-

_ off” as a final race, contest, or the like, to decide an

earlier one that has ended without a decision in favor

of any one competitor.” Though this definition, and

common sense, establish a strong logical relationship

between these two polls, it must bé remembered that -

the complaint is directed against the procedural con-

duct of the election. We cannot assume that on both

~~ occasions the identical procedure was utilized by the

union. We cannot assume that the irregularity to

which the member addressed his complaint about the

_ run-off was present in the initial balloting.. Nor can

we assume that the member intended to complain

about the whole election when he only notified the

_ union that he was dissatisfied with the conduct of the

run-off election. Thus the first: ground advanced by

- the Secretary is untenable. | af

The second and third contentions proffered. by the

plaintiff are designed to elicit from the Court a favor-

RES. aE EES

aE ee Oe or ee

able construction of § 482(a) in light of the permis-

sive language contained in § 411(a) (4) of the statute.

Section 411(a)(4) states that a member “‘may’’ be

required to exhaust internal remedies before seeking

_ enforcement of his rights in an administrative or legal

- proceeding. It-is not wholly insignificant that earlier

. drafts of this.“Bill of Rights’? contained in the word

- “shall” instead of ‘“‘may’”’. Cf. Legislative History of .

Labor-Management Reporting and Disclosure Act,

P. 698, H.R. 8342, as reported? In other words, the

Secretary would have us read the permissive spirit of

§ 411, which is the heart of the Act into § 482, upon

which this action is predicated. — a.

As is often the case when a court is confronted with

a new statute, our attention is directed to the situa-

tion which provoked the LMRDA and the. delibera-

tions of the legislative body which enacted the bill. .

This Act was the result of agitation for legal control

_ over union leadership in order to preserve democracy.

within unions and to guarantee every: union member ~

the right to make his voice heard in the formulation

of ynion policy. One of the most articulate pleas for

such legislation-was that of then Professor Archibald

Cox. In his article “The Role of Law in Preserving

~ Union Democracy”, 72 HARVARD LAW REVIEW 609,

he specifically rejected one form of proposed legisla-

tion, then pending, which gave the government wide’

powers to regulate the internal affairs of unions:

The fundamental objection is that it would

_ have turned over to an arm of the federal gov-

- , ernment the responsibility of carrying on the.

internal governmental processes of a labor

union without any showing that the union offi-

cers and members~ were incompetent and

corrupt. Such a. measure does not promote

2The next version of the bill, H.R. 8400, substituted “may”

for “shall”. There. is no explanation, however, for the change. ©

freedom or democracy. It reduces self-govern-

ment. It, denies the private responsibility and

self-determination which lie at the heart of a

voluntary association. 72 Harv. L. Rev. 609,

630. ;

Commenting upon the problem which the instant case

presents, Professor Cox stated : ;

Any member who can show that he has pursued

‘in timely fashion the remedies available to him,

within the union and any parent. body, should

be allowed to file a complaint with the Secre- f

tary of Labor alleging that a union election

violated the statute. -Requiring the exhaustion

of internal remedies would preserve a maxi-

mum amount of independence and self-gov-

ernment by giving every international union

the eta 4 to correct improper local elec-

tions . . . Ibid., at 633.

Thus the Sdiemiies: who. urged most strongly the

_ passage of the LMRDA viewed the exhaustion of

internal remedies as an integral part of that bill.

Investigation of the deliberations of Congress fur-

ther illuminates the viability of the exhaustion doc-

trine. At no point did the legislators indicate a will-.

ingness to abrogate this traditional requirement in

_ favor of summary action by the federal government;

on the contrary, we aré confronted at every turn with

positive, unequivocal expressions of faith in the abil-

ity of unions to regulate their own affairs.

In filing a complaint the member must show

that he has pursued any remedies available to

him within: the union and any parent body in a

3 For a contrary view concerning internal remedies, see Mon-

temuro, “The Doctrine of Exhaustion of Union Remedies”, 2

Duke B. J. 148 (1952). The author’s principal objection, how-

ever, is directed against dilatory tactics by the union after it

has disciplined a member; that is not our problem.

PPL INNS SEI No Ie

CAD sib Metin ies GREE ae NEAR EO EE 9 Batre 6 ho enn ge ot -

Eryn

timely manner. This rule preserves a maxi-

mum amount of independence and self-govern-

ment by giving every international union the

opportunity to correct improper local elections.

If the member is denied relief by the union or

can obtain no decision from the union any way

or another within three months, he may com-

plain to the Secretary. S. Rep. No. 187 on

S.B. 1555, p.-21; Legislative History of LMR-.

DA, vol. 1, p. 417 (emphasis added).

At least the Committee which drew up the report on

the bill seemed to think that exhaustion was a —

tion precedent. to action by the Secretary.

At another point in fhe report, the Daisies

again expressed its reticence to shackle labor relations

‘with further encumbering. interference by: the gov-

_ernment.

‘The provisions of the bill are not to be

interpreted as taking the place of, or excusing ~

non-compliance with established standards of

proper conduct or any voluntarily. adopted

labor’ or management ethical practices code.

Nor are they to be interpreted as precluding

further voluntary action . . . The committee

, -—__— is—eonvineed that “rigid Government controls

should be avoided if it is all possible to do so.

It is also convinced that labor and management.

have considerable ability to regulate their own

affairs through their own voluntary action. S.

‘Rep., wn Ny p. 23; "egueee: History, supra, |

p. 419

Thus we are forced to agree ‘with the statement of ©

Judge Wilson in McGraw v. United Association of

Journeymen and Pipefitting Industry, 216 F. Supp.

655, 660 (E.D. Tenn., S.D. 1963), that the exhaustion

of remedies requirement is based upon a Congres-

sionally approved policy. of affording unions the op-

portunity of correcting their own: errors and encour-

Pa en GI Nene val Ae Se Wt ah hte

aging union responsibility, initiative and self-disci-

pling. In other words, a complaining member must

first seek redress from his peers before inviting the

Government tg champion his cause.*

With this background, we address the other two

objections of the plaintiff. Thé second objection, i.e.,

that the public mterest demands correction of abuses

uncovered in the June 8 -election, is closely related

to the first contention. The secretary seems to say

that once he has the right to investigate and correct’

by suit any aspect of any union election, this grants

him carte blanche authority to reach all ‘aspects..ef

a union’s election procedures. But in this, he fails to

distinguish between his right to investigate under

the Act and his standing to sue under the Act.

The Secretary is granted broad hi, He

powers, under 29 U.S.C.A. § 521;° to delve into ufhion

*The court has searched unsuccessfully for any authoritative °

‘source in which the exhaustion doctrine has been disparaged

or in. which it is suggested that courts may disregard it. Cf.

Symposium on_ the. Labor-Management Reporting and Dis-

closure Act 138, 259,.284, 333-336, 505.

5521, Investigations by Secretary; applicability of other laws

(a) The Secretary shall have power when he believes it

necessary in order to determine whether any person has vio- |

‘ lated or is. about to violate any provision of this chapter

— (except subchapter II of this chapter) to make an investiga-

tion and in connection therewith he may enter such places

and inspect such records and accounts and question such

persons as he may deem nécessary to enable him to deter-

mine the facts relative thereto. The Secretary. may report

to interested persons or officials concerning the facts required

to be shown in any report required by this chapter and con-

cerning the reasons for failure or refusal to file such a report

or any other matter which he deems to be appropriate as a

result of such an investigation. . . -

(b) For the purpose of any’ invéstigation provided for in

this chapter, the provisions of sections 49 and’ 50 of Title 15

248-411—67—_3 -

aed at em

. e p '

EMELINE PLONE GN: IE EARLE NIRA A OE PPC om skid as POV MA LCE BE UIEIER AM STERN Cree TET

~as“

election procedure; there is no, requirement that ‘the

investigation be preceded by a request from a dis-

satisfied member. In advaricing his second objection

to the defendant’s motion to ‘dismiss,.the plaintiff

_ would have us read the permissive scope of inquiry

in §521 into 482 because the public policy which

prompted the inclusion of § 521 in the Act would best

be served in this manner. He. seeks, in effect, legis-

lation by judicial edict.

To support this contention thé plaintiff cites

Wirtz vy. Local 191, International’ Brotherhood of

Teamsters, etc., 218 F. Supp. 885. (D.C. Conn. 1963),

where the Secretary moved to enforce a.subpoena

duces tecum which liad been served on a union pur-

suant to an investigation under § 521. The union re- -

sisted the subpoena on the ground that, since action |

by the Secretary to secure judicial remedy against

an election is conditioned upon complaint by a mem-

ber who has exhausted internal remedies, and no

such showing had been made, the Government should

-be denied access to union records which might have

importance in a subsequent suit. As the Court

phrased the question:

... must it be shown that the conditions pre-

cedent to the filing of a complaint by- the Sec- .

retary have been fulfilled in order to permit

an investigation by the Secretary, and his use

- of the subpoena power to implement that in-

vestigation? 218 F. Supp. 885, 886.

In: overruling the union’s objection, the Court ree-

ognized the basic differences between the two pro-_

visions: § 482 permits challenge of an election by re-

(relating to the attendance of witnesses and the production

of books, papers, and documents), are made applicable to the

jurisdiction, powers and duties of the Secretary or any officers

designated by him.-

19 .

sort to court, while § 521 permits investigation of an

election. The right to investigate is unfettered by

the restrictions surrounding the right to, sue.°

On appeal the Second Cifcuit “bourt clearly

analyzed the two sections in affirming the decision of

the lower court. In dismissing thé attempt by the

union to read the restrictions of § 42 into § 521, the

Court had no difficulty in reconciling the two sections

Wecause they are directed to two different objectives.

No cdnflict is created by reading Section 402

and Section 601 together. Section 402 pro-

vides for the Secretary’s instituting. an action

in the courts in behalf of an individual who has

complained of a violation of Title IV. Sec-

tion 601 provides that the Secretary shall’ .

“‘determine the facts relative” to a violation or

threatened violation and that he may report the

results of his investigation “to interested per-

sons or officials.” It may be that some or all :

of the limitations of Section 402, such as the

exhaustion of internal ‘remedies, are relevant

_ to the suit which that section authorizes; there

is in Section 601 no. similar limitation on the

*The plaintiff relies upon this statement by the Court to

‘ support his argument that the om of the public requires

us to ignore the plain wording of.the statute:

But there is far more at stake in protecting democratic

election procedures for all members . . . There is nothing

_ ambiguous about the legislative policy, in the Labor-Man- —

agement Reporting and Disclosure Act to advance union

democracy . . . Likewise it is clear from legislatiye history

_ that Congress“recognized that since the -public interest in

safeguarding and improving the electoral process: exceeds

even. that of members, it might be unwise to place too ,

- much reliance on its members to vindicate that interest.

Not only is-this statement totally unsupported by any refer-'

ence to the legislative history tpon which it purports to be

founded, but it is pure dictum: and of no avail-to the plain-

tiff in this case. ie Ss bet

\ , ; : 20

Secretary’s power to investigate anda report.

Presumably the Secretary can bring an action

only when a complaint has been filed by an

individual member (Section 402). But he can ~

investigate and report without such a ape

The two sections of the statute can thus be read

together and each be given full effect in com-

- plete harmony and without any ‘trace of clash-

ing purposes. 321 F. 2d 445, 448. -

_ This case; rather than support the: plaintiff's position

on this issue, proves fatal to his argument; in that

case, we find a union. espousing a position which is the

counterpart of the Seeretary’s position in the instant

ease. Just as the Connecticut District Court and the

Second Circuit Court-refused to grant the union’s re-

quest to read restrictions into § 521, we’ refuse to read

those same restrictions out of § 482.

In his solicitous pursuit of the public interest, the

Secretary cites Goldberg v. Amalgamated Local [nion

355, 202 °F. Supp. 844 (E.D. N.Y. 1962) to further

the argument that the public interest permits him to

allege violations of the Act not contained in the mem-

ber’s internal protest: But that Court explicitly

stated that |

~. [o]nly after the member of the labor organiza-

- tion has exhausted the remedies available to |

him under the Constitution and by-laws of. the

labor organization . .. does the right of the

Secretary accrue. 202 F. Supp. 844, 846.

Plaintiff here invokes the doctrine of “public in-

terest.””. Can. we place this “public interest” of which -

the government is here so solicitous above the interest

- of the individual members of the union? Unions are

voluntary associations, organized by workers to pro-

_ mete their common .welfare. The sole reason for’ |

-their existence is to advance the cause of the individ-.

‘ wual-laborer by negotiating from a position of collec-

tive str wast to secure . favorable wages and working

conditions. The individual members _entrust this -

_ strength to the officers of the union, just as the mem-

- bers of this defendant. unign did by the election of

June 8, 1963. It is highly significant that not one

. voice. of protest has been heard from the membership

against the conduct of that election. We do not think

that the Secretary under the guise of ‘public inter-

est” may be permitted to complain when the member-

ship has not;.to hold otherwise would, in fact; be °

inimical. to true public interest because it would re-

. quire legislation by judicial fiat. : If the members are

satisfied, then the government ought to be satisfied.

. The third contention advanced by the plaintiff sug-

gests that the Court may, in its discretion, ignore the -

- requirement of internal exhaustion. We disagree.

_ The cases: where this has been done involved situa-

tions where the internal complaint was to be heard by

those very people against whom complaint was to be

made. Cf., eg., Calagaz v. Calhoun, 309 F. 2d 248

(5th Cir. 1962). This is but a further expression of

a basic tenet of American jurisprudence—the law will

not require a useless act. It is significant that the

cited case and other like it do not involve actions

brought by the Secretary under § 482. The Court

finds, therefore, that it is without discretion to erase

the explicit condition which Congr ess wrote into the ~ -

statute.

In addition to these affirmative attacks upon the

doctrine of exhaustion of remedies, the plaintiff sug-

gests that the defendant should be estopped from as-

serting the failure of this condition precedent. Since

the union had been directed to investigate a ‘complaint

about the July 13 run-off, itis argued, it should then

have ‘investigated the election of June 8. We dis-

agree, for the simple reason that no one asked. for

such an investigation. ‘The purpose of retaining the

BASSE AL ALR RAY BARA AE tee oe

exhaustion requirement in the LMRDA is to afford

the union the first opportunity to police its own beha-

vior ; wif no complaint is heard, however, no investiga-

' tion is launched. The statute (29 USS. C. A. § 472(a)

(2)) permits courts, when suit is brought, to presume

that an election is valid until-the contrary be proven.

% Thus the burden of proof and the risk of persuasion

must be borne by the party which attacks an election.

By. analogy: the union itself\should be entitled to make

that same presumption ; the union can presume that its -

: tary’ S complaint — that. election.

procedure is correct and: need’ ‘not investigate unless ©

and until a member complains. * \Thus we hold that

the union was not requiged to inv ate the election

of June.8, and the union is not estopped from assert-

ing the failure of a condition precedent to the Secre- .

ay, “Wana, aie

APPENDIX C-

. United: States District Court, Northern District of

Ohio, Eastern Division

Civil Action No. ‘C 64-99

”

| W. Witrarp Wirtz, Secretary or Lapor, UNITED

SraTEs DEPARTMENT OF LABOR, PLAINTIFF

w. Maes

LocaL Unton No: 125, InverNationaL Hop CARRIERS’ °

BUILDING AND Common LABOBERS’ UNION OF /AMER-

ICA, DEFENDANT | :

MEMORANDUM OPINION .

Battisti, J. )

On: June 8, .1963, ‘defendant held a general election

of offiéers. in this election the vote for the office of °

Business Representative resulted in g tie between

- two of the three é¢andidates, those two being Cecil:

Dial and Andrew E. J ackson. On July 13, 1963, de-

fendant held a run-off election for the office of Busi- '

ness Representative. In the run-off election Andrew

E. Jackson received 198 votes, Cecil Dial received 179

votes, and Irwin Ferry received 2 votes.’ Subsequent

' to ‘the July 13 election, Andrew: Jackson was sworn

in as Business Representative of the defendant.

On August 11, 1963, Cecil Dial, acting pursuant

to defendant’s constitution, protested the conduct of

the run-off election to the General Executive Board

of the International Hod Carriers’ Building and

Common Laborers’ Union of America. This protest

2Mr. Ferry was the third candidate in the June 8 election.

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was denied by the General Executive Board on De-|

cember 2, 1963. On December 9, 1963, Dial filed a

complaint with the Secretary of Labor. Upon re-’

ceipt of Dial’s complaint the Secretary investigated

both the June 8, 1963, general election and the J uly

13, 1963, run-off election. = ot me

On February 7, 1964, the Secretary filed the present

action under the Labor-Management Reporting and

Disclosure Act of 1959, 29:U.S.C.A §§ 401-530 (here-

inafter referred to as the Act) seeking an order set-

ting aside the June 8, 1963, general election and also

the July 13, 1963, run-off election. In his complaint

the Secretary alleged inter alia that_the defendant

had violated Section 401 of the Act (29 U.S.C.A. °

§ 481) in that it had failed to conduct the two elec-

tions in accordance with its constitution and bylaws.

- The Secretary, further alleged that: these violations

may have affected the outcome of the two elections.

In a memorandum opinion. dated July: 13; 1964,

Chief Judge Connell granted the defendant’s motion

to dismiss that portion of the complaint directed to

'” the general election of June 8, 1963. Wirtz v. Local

No. 125, International Hod Carriers’ Building and .

Common Laborers’ Union of America, 231 F. Supp.

590 (1964). In dismissing that portion of the com-

* plaint, Judge Connell found that since no’ member

of the defendant had complained internally about thé

conduct of the June’8 election, the Secretary’s alle-

gations with regard to said election were not, as re-

uired by Section 402 of the Act (29 U.S.C.A. § 482),?

Section 402 of the Act (29 U.S.C.A. 8482) provides in

pertinent part. as follows: (a) A member-of a labor organiz

tion—(1) who has exhausted the remedies available under the

constitution and bylaws of such organization and of any par-

ent body, or (2) who has invoked such available remedies

without obtaining a final decision within three calendar menths

after their invocation, may file a complaint with the. Secretary

predicated upon a complaint by a union member who

had exhausted his internal remedies. |

The Secretary has now. moved for summary judg-

ment with regard to that portion of his: complaint’

directed to the run-off election of July 13. In -the |

alternative, the Secretary moves that the action be

advanced on the trial docket. . 7

As has already been noted, the Secretary alleges

that defendant, in violation of Section 401(e) of the

Act (29 U.S.C.A, § 481(e)), failed to conduct the July

13 election in accordance with the applicable provi-

sions of its constitution and ° bylaws. Specifically,.

the Secretary alleges that thé defendant (1) permit-—

ted ineligible candidates to run for office, and (2),

permitted persons to vote who were ineligible to do

$0. | . | . ,

Section 401(e) of the Act (29 U.S.C.A.: § 481(e))

provides in pertinent part-as follows:

(e) In any election required by this section

which is to be held by secret ballot a reason-

able pons shall be given for the nomina-’

tion of candidates and every member in good

standing shall be eligible to be a candidate ard

to hold office (subject to section 504 and to.

om reasonable qualifications uniformly imposed)

_and shall have the right to vote for or other-

*. wise support the candidate or candidates of his

choice, without being subject to penalty, dis-

cipline, or, improper interference or reprisal of

within oné calendsr} month thereafter alleging the violation- of

: any provision of Section 401 (including violation of the con-

stitution and bylaws of the labor organization pertaining to

the election and removal’ of. officers). * * * (b) The Secretary

shall investigate such complaint and, if he finds probable cause

to believe that a violation of this title has occurred and has

not been remedied, he shall, within sixty days after the filing

of such complaint, bring a civil - action against the labor

organization. * * *

26:

any kind by such organization or any member

thereof. * * * Each member in good standing

shall be entitled to | one vote. *°* * The election |

shall be conducted in accordance with the eon-

stitution and bylaws of such organization inso-

far as they are not inconsistent with the pro-_

visions of this title. :

It is clear, and the defendant does* not urge ‘other

wise, that the run-off election of. July 13 comes within

the purview of Section 401(e) of the Act. The al-

leged violations of Section 401(e) will be. considered

| Separately below.

ALLOW ING INEI. IGIBLE PERSONS TO VOTE IN THE JULY | 13

ELECTION °*

* Article VIIT of Local 125’s constitution provides

in pertinent part as follows:

Section 5. The monthivy dues are dué on the

‘first day of the month and unless paid on or be-

fore the last day of the following month, the

member shall be considered to be in arrears and

suspended without notice. [Emphasis sup-

plied. ] Pre. r t

+ - # * ' * +

Section 7. The readmission. fee for persons |

who are suspended for nonpayment of dues, as-

sessments or fines to the Local Union and who |

‘remain suspended for a period of less than one

.. year, shall be the amount of such assessments

or fines in addition to the following: *.* *[fig-’

ures omitted] * * * Once the member has de-

- faulted in the payment of dues; as herein pro-

vided, the date of suspension referred to in this

' Tt is clear that the portion of the Secretary’s complaint di-

rected to the matter of the eligibility of voters in the July 13

election is, as required by Section 402 of the Act (29 U.S.C.A.

§ 482), predicated upon a complaint by a member of the de-

fendant who has exhausted his internal remedies. _ :

section, shall.be the first day’ after the month

for which the member’s dues were last paid. -

Section 8. Persons in arrears have no right .

to attend. meetings nor any other rights except

_the. right to be readmitted in accordance with

_~ the above section [Section 7]. If a member be-

comes suspended. by reason of his own conduct

he’ can only be readmitted through the Local

Union of which he was a member when sus-

_ \pended. Readmitted members shall be con-

sidered hew meinbers fromthe date of their re-

admission. [Emphasis supplied.]._ 3

It is on the basis of the above-quoted: portions of s

Article VIII of the defendant’s constitution that the

Secretary predicates his claim that certain ineligible

- persons voted in the July 13 election. The Secretary |

urges that under the clear and unambiguous lan-

guage of Article VIII a member who. has not paid his

dues within the time provided by Section 5 is auto-

matically in arrears and should be suspended with-

out notice. The Secretary further urges that once a

member has fallen in arrears, he loses all rights ex-

. eept the right to be readmitted, in. accordance with ‘

Section 8 of :defendant’s constitution and, therefore,

_is not entitled to vote in union elections unless and

until he has paid the madatory readmission fee. _

‘Article XVIII, §3, of the International Constitu-

tion provides as follows:: =

Section 3.:Each Local Union. shall, through.

its Secretary-Treasurer, pay to the Interna-

tional Union a per capita tax of $1.00 per mem- *

ber per month, payable for the current month

on each member in the Local Union and an

initiation fee of $5.00 for each member regis- —

tered with the International Union as a mem-

ber and $2.50. for each member readmitted;

each initiation fee and each ‘readmission fee

must -be accompanied with the per capita tax

. for the month in which the member is regis-

tered or readmitted.

TELAT LET RE TE LT ITN TT

; : q

It is clear from the defendant’s answers to the plain-

tiff’s interrogatories that defendant maintains “per

capita tax sheets’’ reflecting payments made to the

International pursuant to Article XVIII, §3, of the.

International Constitution. . mae

At the July 13 election, members listed as paid for

the month of May 1963 on the Secretary-Treasurer’s

per capita tax sheets were deemed to be in good stand-

ing and, thus, eligible to vote. (Admission 19.)

These. per capita tax sheets did not, however, accu-

rately reflect the names of those persons who were ac-

tually in good standing as of July 13. (Admission

11.) Said sheets were inaccurate because the ‘Sec-

retary-Treasurer of the defendant had paid the per

- eapita tax for certain persons who were delinquent in

the payment of their May 1963 dues and also for

- eertain persons Who had either not paid or had not

completed payment of mandatory readmission fees.

Thus, of the 379 persons voting in the July 13 clee-

tion, 58 were delinquent in their payments to’ the

union. (See resporises to plaintiff’s request for ad-—

niissions Nos. 20 and 21.)* pile

_ Mr: Martin M. Mason, Secretary-Treasurer of the

defendant, has, by way .of affidavit, stated, as follows:

‘The plaintiff also urges that many members

for whom I paid their per capita tax were not —

eligible to vote. In the. fall of 1962 and spring

of 1963, there was a lot of unemployment in the _.

Youngstown area. <A lot of men who had heen

long-time members could not find work. They

wanted to remain members and he eligible for

- any work that came along. They asked me for

consideration as in the past to pay their per

capita tax. and keep their membership alive.

44s to 15 of the 58, the facts giving rise to an obligation

to pay a readmission fee are not readily apparent. See Ad-—

missions 21 “(d),“(e), (k), (1), (vu), (Ww), (2), (ak), (as).

(ax), (ay), (a2), (bg):

This was not a practice I set up but was pro-

cedure that had been long established prior to

my coming into office. I did this to help and ;

assist these old time members. I explained a

this fully in -my statement, plaintiff’s exhibit

* “JT, JT think I should have an opportunity to

explain this to the Court by testimony and not

have this motion decided on these papers. .

(Defendant’s exhibit 1.) |

It might be noted that in plaintiff’s exhibit I, the

statement referred to in the above-quoted portion of

Mr. Mason’s affidavit, Mr. Mason stated in part as.

follows: git, :

I as Secretary-Treasurer of Local 125 have,

on my own initiative, paid per capita tax to the

International for members who. have not paid

dues to the Local. Many of these persons

should have been automatically suspended I

-am also aware that these persons, delinquent :

over 61 days, should have been required to pay z

reinstatement fees to Local 125. According to . ~°

our constitution, these members I have carried

_by paying their per capita tax who have not

paid a reinstatement fee are not members in

good standing and they should not have been j

permitted to vote in Local 125’s election. The

reason I carried some of these members by pay- |

ing per capita tax to the International was so |

that they would work. Unemployment has

been in Youngstown, Ohio, and members don’t

have the money for dues. I paid their per

capita out of the General Funds of the Local.

However, many persons have been suspended by

_ me for failure to pay dues. I only paid per

_" eapita for members I knew had been unem-

' ployed, had been long time members and I took .—

into consideration personal hardships and fam-

_ily situations. I-have kept no records of per-

sons that I paid per capita for or who had not

paid reinstatement fees.

SLT ROM NTL

REEL LT T

RIT EI WOK IL IRIS fe eee

. a

wi PRR PY IY Re Ts” te:

. .

‘

POTD

Prior to the July 13 election it had been called to

the attention of the International that the Secretary-

Treasurers of certain locals were forwarding per-

capita tax payments to the. Internatiorial for certain

persons who were delinquent in payments to the local.

On February 7, 1963, in a letter addressed to all affili-

ated local unions, district councils, and members, the

- General. President and the Secretary-Treasurer,of the

International made the following comments with re-

gard to this practice: |

The General Executive Board, at a recent

meeting, was made aware of several complaints

and protests regarding payments of’ constitu-

tional fees, such as dues, initiation fees, read-

mission fees, et al.

At the outset, it is to be observed that corre-

sponding payments made by Local Unions to

the General Secretary-Treasurer of the Inter-

national Union, such as per capita_tax, etc., are

received and accepted on the presumption of

propriety ; namely, that the payments submitted

are pursuant to and in accordance with the full .

intent of constitutional requirements. To jllus-

trate: when the Secretary-Treasurer of a Local

Union forwards per capita tax in behalf of a

- member, the presumption is that the Secretary- -

Treasurer has received-payment of the dues for.

the particular month, directly from the member.

Tt now appears that, ‘in some instances, Secre-

taries-Treasurers of Local Unions forward per

capita tax to the International Union for cer-

tain members who have not paid dues for the

corresponding month. | i

The information further discloses that, in

some instances, there has been a practice of

so-called ‘“‘free dues”. This has occurred and.»

has been applied to various officers of Local

Unions, stewards on jobs, sick members, and for

individuals in other categories or capacities. —

It must be noted that such offer of per capita

tax is definitely improper because it is not based

5 et

on a payment made directly by the member to,

the Local Union and, accordingly, any sub-

mission of per capita tax -by the Secretary-

Treasurer is therefore void, invalid and of no

effect. You will also notive that, this being so;

the member is not in goor standing under the

provisions of the Constitution.

In order that this entire area of mistaken and

improper activity may be corrected, the General

Executive Board, at its meeting held J anuary

9-29, 1963, voted, that in all instances. where

and when the General Secretary-Treasurer, on

and after April 1, 1963,.finds that per capita

tax and other fees submitted by Local. Unions,

are not based. upon corresponding payments. |

directly made by the member to the Local.

Union, such submission shall he deemed to be

invalid, improper and of no effect.

It must be noted, as stated above, that where

and wher such finding occurs, the result is, that

the. members affected are not in good standing

if the delinquency y is for a period longer than

that specified qand provided for in the Consti-

_ tution.

All affiliates and: members please take note

and abide yourselves accordingly. . a Plaintiff’s

° exhibit C) «

¥% * * %

Ft is nici ion that the. Seerotary-Tréasure er.

of the defendant failed to comply with International

Union’s directive of February 7, 1963. In fact, he

acted directly contrary to the instructions contained.

therein. It is’ further clear that by using.the Secre- |

tary-Treasurer’s per-capita tax reports to determine »

voter eligibility for. the July 13 election, 58 persons

were permitted to vote notwithstanding the fact that

they were delinquent in their payments to the defend-

ant.- (Admission 20, 21.) *

Were the 58 persons who were * delinquent in their

"payments to the defendant union eligible to vote in

the July 13 election? In answering this question, we ~

must look to the constitution of the defendant union.

- In 87 Corpus Juris Secundum, Trade Unions, § 13, p.

776, the. following observations are made relative to

the construction of union constitutions:

Trade union constitutions should be read in

their living context. The interpretation or

construction of the constitution and laws of a

union is for the union, through its appropriate

board or officers; and’ the courts: will accept

such interpretation, as long as there is no claim

of fraud, and as long as the officer or body on

which this power of interpretation has been .

conferred does not substitute legislation or

amendment for. construction, does not trans- .

gress the bounds of.reason, common sense, or-.

fairness, or act arbitrarily, or contravene publie

_ policy or the law of the land, or destroy -the

property or contractual rights of, the members. —

Where the language of a rule is clear, no official

’ may nullify it under the guise, of interpretation.

As -has already been noted, the Secretary urges that

under the clear and. unambiguous language of the de-

fendant’s constitution the 58 persons referred . to

above were ineligible to vote in the July 13 election:

‘Article VIII, § 5, of defendant’s constitution clearly

and explicitly provides that where a member fails to

make a timely payment of dues he “shall be con-

sidered in arrears and suspended without notice.” In

answering plaintiff’s interrogatories, defendant has

indicated that a substantial number of. its members

have at one time or another been automatically sus-.

pended, pursuant to Article VIII, ,§5, for non-

_ payment of dues. Further, the International’s

' directive of February 7, 1963, (quoted on page 8,

supra) clearly indicates that a Local is ee to

suspend,.a member who. fails to make’ a timely pay- |

‘ment of his dues.®

The Court finds that under the clear ssi unam-

biguous language of Article VIII, §5, members who

fail to make a timely payment of their dues are auto-

matically in arrears and should be — without

notice.

Under the clear and ihn language of '

Article VIIT, § 5, a member who has fallen ‘in arrears

has “no rights except, the right to be readmitted in

acgordance wi

quires thaf the member pay the established readmis-

sion fee. Thus, the Court finds that under defend- -

ant’s constitution, once a member has fallen in arrears

and has thereby lost his rights, he may. only regain

‘the same by paying the established readmission fee.

Moreover, there is no provision in the defendant’s .

_ constitution which gives the Secretary-Treasurer, of

the Local the right to waive the peanres _——

sion fee. soe ge

As has previously been noted, 58 0 the persons

who . voted in the July 13 election’ Were either de-

linquent in the payment of, their May, 1963 dues or

had not, paid or completéd, payment of mandatory

readmission fees. The Cofirt finds that these. persons.

* Between May 1, 1962, and Riiors 1; 1963, 357 members

were so suspended; ‘between January 1, 1963, and May 1, 4963,

229 were so suspended; between May 1, 1963, and June 8, 1963,

22 were so suspended; between June 8, 1963, and July 13, 1963,

73 were so suspended. (Defendant’s answers to plaintit’s

interrogatory No. 8.) The substntiality: of these figures is

_readily apparent when viewed in relation to total membership

“figures. ‘Defendant has indicated that it had 967 members on

May 1, 1962, 730 on May 1, 1963, 717 on June 8, 1963, and 729

on J aly 13, 1963. (Defendant's ' answers to plaintiff's inter- -

rogatory No. oe |

VIII, §7.’’.' To be readmit- |

oid ate A 51 a huh uate eRe ene reY

° < L\ a » \ .

. ‘ . e

3 < ‘ ¢ . ‘ -

$3 mS Ca Dol = -. & ied “ Sew Owe - 4 We

f Drath adh RMT CUR Viet cbse ons. me — ;

» - : ‘ :

te ‘ .

- at = *. ye

‘

" were not, under. any reasonable construction of de- _

férdant’s constitution, members in good standing and

_. Defendant has urged ‘that plaintiff’s motion for

summary judgment should be denied for the. reason

that there is an unresolved question of fact as to *

< “whether the practices followed by the defendant were

reasonable. Defendant’s’ position seems: to be that.

even if it did not follow the eligibility standards of

its. constitution and: bylaws, it must nonetheless be —

determined whether the standards actually followed

were reasonable. This position lacks merit, for it

~.seems clear. that one of the basic purposes behind the

-élection provisions of the Act was to require unions

— to comply with the provisions of their: constitution

‘and bylaws in the conduct, of their ‘elections. Where,

as: here, ‘the conduct complained of. cannot be justi-

.. fied under any reasonable construction of the union’s |

constitution or bylaws, it would be most anomalous

’ to hold that the conduct did not. violate the Act be-

cause it was, in some abstract sensb, “reasonable. veces?

‘On January 27, 1966, the Court ‘heard. oral argu-

_. ments: on the -plaintiff’s motion for summary judg-

ment. On that: date counsel for the defendant. pre-

ie Sented. to: the Court a copy of a: directive of the In-

ternational Union dated January 17, 1966, and. ad-~

‘Tt is + from Mr. Mason’ s affidavit that special consid-

eration waS given to only those delinquent: members who Mr.

_ Mason felt were deserving; and, further, that in granting such

special consideration Mr. Mason was not acting pursuant to

any authority granted to him by the defendant’s constitution .

or bylaws,. ‘Further, Mr. Mason did ‘not maintain records per-

- taining to his actions. If the Court was required to view the

conduct complained of herein.in the -abstract,. it would be

forcéd to conclude, on the basis of the affidavits, admission and

answers to plaintiff’s interrogatoriés, that said conduct was, as

a matter of law, unreasonable.

+.)

dressed to all local: unions, district councils and mem-

bers. The directive reads as follows:

RE: Right to Vote> pep i

Dear Sirs and Brothers: Saeed |

- The General Executive Board, at its No- | 7

vember 29-December 10, 1965 meeting was

made aware of a grave danger to our member-

Ship, which has developed as a result of a mis- i

terpretation of the Uniform Local Union Con-. -|_-

- Stifution and Release #1 of 1963, and which a

is threatening to deprive many members of ;

long. standing of their rights and benefits un- oN

der the Union’s Constitution and collective -

bargaining agreements, particularly the right, y

otherwise available, under the Union’s Con- | ;

. Stitution to vote in the Union’s general election '

for the candidate of their choice. - . |

The General Executive Board was presented

with the issue of whether or not members in

good standing on the day of election must be |

deprived of their right to vote on election day -.:

because at one time or another during: ‘ the a }

course of their membership, dues which they .

_ and the Local Union remitted per capita tax

within the Constitutional period to the Inter- .

national Union, as a result of which the mem-. °

ber’s good standing was not, in fact, inter-

rupted. . : ee :

The General Executive Board, for years,

knew of a long-standing practice in many Local

Unions where per capita tax payments were |

being improperly forwarded to the Interna-. bi

tional. Union by Local Unions. Release #1 :

of 1963 was directed principally toward advis- *

ing Secretary-Treasurers of Local Unions on

' the proper conduct of their office, the payment '

of dues andthe persons on whose behalf per |

capita tax should be forwarded to the Inter- f

national Union. ae ee a . :

However, nothing contained in Release #1

nor in the Union’s Constitution, stated in terms

or inferred, that:such a member whose good

standing was not interrupted should be de-

prived of his legal and Constitutional right, |

otherwise available, to vote when he approached —

the polling place on election day. Nor. was this,

- jn fact, the intent of the General Executive

Board in issuing Release #1, nor of the

drafters. of the Uniform Local Union

Constitution.

Indeed, to the contrary, the Board had con-

sistently ‘maintained the position throughout.

the years, that. its Constitution must be inter-

preted as a living document in the light of the

Union’s history and tradition—giving due re--

gard to its unique and. real needs—not from a

formalistic standpoint. It was never the in-

tention of the Union in adopting its Constitu-

tion, ot-of the General Executive Board in is-

suing Release #1 or in otherwise interpreting

its Constitution to deprive members of their

right to vote. The Board had always inter-

preted its Constitution liberally to preserve the

right of members to vote. . Particularly, in

dealing. with problems in the election area, the

Board had always placed substantial require- |

ments over form. The Board*will continue to

adhere to this view. |

The Board was troubled by the misinterpreta-

tion of the Constitution and Release:#1, which

threatens to deprive wholesale numbers of mem-

bers of their right to vote under the Union’s

Constitution and the Act. First, it felt ‘that

‘such an interpretation was unduly infringing

‘upon the prerogative of the Board. to inter-

pert its Constitution in a fair and responsible

manner in the interest of the membership, and

was seeking to substitute the judgment of per-

sons outside the Union on the meaning of the

Union’s Constitution for that of .the Union’s

governing body, which had been elected by the

‘membership. and charged with that responsi-

bility. ;

But, in the Board’s view, the principal vice «

of this hypertechnical interpretation. was that’ °

it completely ignored the unique, real problems

confronting the Union-and its membership. |

The ‘Board in interpreting ‘its Constitution,

is charged with the responsibility of giving due

regard to the unique problems confronting ‘the

membership. ©

In issuing Release #1, it. was attempting to

instruct its Locals: on solid: financial practices |

to promote their long run interests. The.

Board adheres to that-view and is in no way

attempting to relieve Secretary-Treasurers

from their obligations. The Board knew then

’ and it knows. now that if its Constitution was

construed to disenfranchise .sueh members, a

very substantial percentage of the total mem-

bership would be deprived of their right to

vote. It knew then and it knows now that if

such a harsh interpretation was placed upon

the Union’s Constitution, it would result in

depriving many tens of thousands of their

members and their families of death benefits

.built up over the years and of pension rights.

under collective bargained _pension plans

throughout this country. Moreover, it knows

that if the Union were to adopt the interpre- -

_ tation urged, it would only suspend those mem-

bers which would simply mean that they would

lose their benefits, accruing over the years and

be required to pay a new initiation fee under

the Union’s Constitution as a: new member.’ -

The Board flatly rejected the opportunity for —

the International Union collecting such a finan-:

cial windfall and it instructed the: Executive

Officers to. advise each ,affiliate of the follow-

ing action and take whatever possible actions

are necessary to defend the right of the mem:

bership to act in that regard.

After due consideration, the Board

“VOTED: In accordance with the power and

authority vested in it -by the International

-. Union Canstitution, Uniform Local Union Con-

stitution, and Uniform District Counicil Con-

stitution, that its Constitutional provisions

shall not be interpreted to deprive members

of ‘their legal and constitutional ‘right to vote

in ‘those instances where local unions have ac-

cepted dues late and remitted per capita tax

~ within the Constitutional period to this In-

ternational Union, so that the local unions

were never notified by the International Union

that such members were suspended. To the ex-

tent that anything contained in Release #1

of 1963 can be construed to reach a contrary

conclusion or to cast doubt upon this position, _

tune.”

All affiliates and ‘members please take note

‘and abide yourselves accordingly.

Respectfully and fraternally yours,

(S) Jos. V. -MoreEscut.

: (S) Perer Fosco. !

Presented to the Court, along with the above-quoted

directive, was’an affidavit of Robert J. Connerton,

- General. Counsel of the International. In his affidavit.

Mr. Connerton states that the: directive of January:

17 is “a formal constitutional interpretation by the -

General Executive Board binding on soa Local Unions

and officers.” —

While the Airestive of January 17 may reflect an

official action taken by the General Executive Board,

the directions contained therein are ambiguous, in-

consistent with the clear and unambiguous language ~

- of the Uniform Local Union Constitution, and, fur-

ther, are in many respects inconsistent with the ‘in-

structions given in the directive of February 7, 1963.

As has previously been noted, the defendant clearly

_acted in violation of its constitution in allowing cer-

_ tain delinquent persons to vote in the J uly 13 elec-

tion. The Court finds that the directive of J anuary

17 does not, and cannot, exculpate the defendant from

the consequences of its previously improper conduct.’ -

Defendant urges that, even if it is found that the

defendant violated its constitution in the conduct’ of

the July 18 election, plaintiff’s motion for summary

‘judgment must nonetheless be overruled for the rea- |

son that there is an unresolved question of fact as to

whether the improper conduct ‘‘may have affected the

outcome of the election’’ within the meaning of Sec-

tion 402(c)(2) of the Act. Defendant states that

even if certain ineligible voters voted in the J uly. 13

election it is not clear which candidate they voted for.

Defendant’s position seems to be that. where ineligible

votes have been cast it must be ‘shown not only that

it is mathematically possible that the outcome of the

election was affected, but, also, that the manner in

which the ineligible voters voted actually did affect

. the outcome of the election. Defendant evidently has

failed to. recognize, however, that Section 401(d) of

‘ the Act required that the election in question be held

_ by secret ballot. To require or allow inquiry into .

the manner in which certain persons have voted would

be entirely inconsistent with the Act’s requirement

that the ballot be secret. The Court, therefore, finds

that the Act’s secret ballot requirement forecloses any

inquiry into’ how particular persons voted. The

Court further finds that if ‘the number of ineligible

Votes cast is sufficient to make it mathematically pos-

‘The Court is in no manner indicating “what steps the Inter-

national or the Local can now reasonably take to resolve any

_ problems which might result from such previous misconduct.

Further, the Court should point out that this opinion is limited

strictly to a determination of whether certain persons had a

right to vote in the July 13 election. |

sible that the “snhnonte of ‘the eke was affected,

this fact alone conclusively establishes the Act’s re- |

quirement that the conduct complained of. may have

affected the outcomé of the election.

As has previously been-noted, the July 2B election

was decided by 19 votes: In said election, 58 ineligible

votes were cast. In light of what has been stated

above, it is clear that the casting of these votes may

have affected the outcome of. the election?’

The Court finds that, with regard to the portion

of the complaint here under consideration, there re-

‘mains no genuine issue as to any material fact. The

Court further finds that the defendant, in the conduct

of the July 13 election, violated Section 401(e) of the

Act, and that such violation may have affected the

outcome of said election. Plaintiff’s motion for sum- _

mary re ogo will, therefore, be granted.

ELIGIBILITY OF CANDIDATES

Defendant’s constitution requires candidates for

office to have maintained continuous good standing |

in the International for a period of two years and:

continuous good standing in the Local for a period

of ‘one year (Article V, §1). Prior to the June 8

election, the defendant’s Election Committee consid-

ered the matter of the eligibility of candidates. In

‘determining eligibilty, the Committee referred to the

Secretary-Treasurer’s per-capita tax reports and’ the

membership book of each potential candidate. (Ad-

mission 12). As has previously been noted, the per: -

® As has previously been nate, the 58 voters involved ar

either -(1) had not paid their May, 1963 dues as of July. 13,

1963, or (2) had not paid or completed payment of mandatory

readmiasion fees. The number of persons Within either cate-

gory would, standing alone, have been sufficient ad have af-

fected the outcome: of the election.

m-.

. 41

capita tax reports did not give an accurate indication

of whether individual members were in good stand-

ing at the date of the nominations or election, and,

further, did not accurately. indicate whether mem-

bers had been in good standing in the defendant

union for the year preceding the election or in the

International for two years preceding the election.

(Admission 11). The Election Committee ‘did not

examine the individual members’ ledger: cards, which

cards would have accurately reflected the members

dues payments.-- ——s- |

Within one year prior to the nominations and elec--

tion, Andrew Jackson, the winner of the J uly 13 elec-

tion, had been in arrears in his dues payments for

more than two months. (Admission 18.) As has

previously been noted, once a member falls in arrears

he automatically loses his good standing. .To regain

" good standing he must, under Article VIII of defend-

ant’s constitution, rermit to the union the established

readmission fee. _ ;

Under the circumstances set out above, it is clear

that Mr. Jackson had not been in continuous good

standing in the International for two years and, fur-

ther, had not been in continuous good standing in the

Local for at least one year.. A similar situation pre-

vailed with regard to Mr. Ferry. (Admission 16.)

' It is clear, however, that Mr. Dial had been in con-

tinuous good standing in the International for two

years and, further, had been in continuous good stand-

ing in the Local for at least one year.

In protesting the conduct of the July 13 election, —

Mr. Dial made no claim relative to the eligibility of

candidates. It would appear, therefore,. that thére is

a substantial question as to whether, under the reason-

ing of Judge Connell’s opinion, the Secretary is pre-

cluded from attacking the election of July 13 on this

AO RARORINES Oy i)

ae Wiper

indie te te eet

basis. Since, however, the Court has already found

that the July 13 election must be set aside on the basis

of the ineligibility of certain voters, neither this ques- °

tion nor the question of whether the election should be

set aside on the basis of the ineligibility of candidates

(assuming that the Secretary is not precluded from _

oe the election on this basis) need be resolved.

An order will. be entered in accordance .with this

memorandum opinion. Since the July 13, 1963, elec-

tion concerned a single office, and, further, since the

defendant will obviously be holding a general election

within several months, it is clear that many practical

problems are presented with regard to the provisions

to be contained in said order. The Court, _therefore,

requests that counsel meet within ten days. and at-

tempt to agree upon a final order which takes into ~

account the practical problems involved. If the par-

ties are able to agree upon an order, said order should

- be submitted to the Court on or before April 15, 1966.

If the parties are unable to agree upon an order, the

parties should inform the Court to this effect, on or

before the same date. .

U.S. GOVERNMENT PRINTING OFFICE: 1967

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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.