# Appendix — Wirtz v. Local Union No. 125 > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386412_0122%3A03 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1968 - **Citation:** 389 U.S. 477 ## Text — dl pt tht Lilet Leena niin Bisse aE ” & 4 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. ee _ 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) x PAL TT ne e-. 12 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 — 13 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 e 14 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 17 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- 21 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 he BASSE AL ALR RAY BARA AE tee oe eS 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. . ® 423) 3 » ~ hi i at vis ‘ ave Se kta ay Hal ? : ° : . St atl ie aaa A a ee MANS ENON EDR AIOE BPE 25 ~ i ee a a ae a GB haasea tke, SG ee Sate 24 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 x 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. _ : ~ 27 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 28 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. 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 . ‘ offered late were accepted by the Local Union, © _ 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 . : 36 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 = 37 ‘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. 38 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, _ it is jhereby modified to that extent nunc pro © 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 Ss 39 _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. | 40 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 se indie te te eet 42 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 we? 2 ws ae. - i a : “ ". --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386412_0122%3A03. Public record. Not legal advice.