Brief in Opposition to Petition for a Writ of Certiorari — Wirtz v. Local Union No. 125

€-Supreme Court, U.S.

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No. a9%T~ SB APR 27 1967

[JOHN F. Davis bax

In the Supreme Court of the United ta es”

OCTOBER TERM, wy

. W. WILLARD WIRTZ,

Secretary of Labor,

Petitioner,

vs.

LOCAL UNION NO. 125, LABORERS’ INTERNATIONAL

_UNION OF NORTH AMERICA, AFL-CIO, oy

_ Respondent.

On Perrrion For a Writ oF tiiiiienass TO THE

Unrrep STATES Court or APPEALS

, For THE SrxtH Crecurr.

BRIEF OF RESPONDENT IN OPPOSITION.

Mortimer RIEMER,

2217 The Illuminating Bldg.,

‘Cleveland, Ohio 44113,

Counsel for Respondent.

. Of Counsel: 7 se

Rosert J. CoNNERTON,

905 16th St. N.W.,

Washington, D.C. 20006.

THE GATES LEGAL RUBLISHING CO., CLEVELAND, OHIO—TEL. (216) 621-8647

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‘TABLE OF CONTENTS.

Opinions Below ope AERUE ea Coe RE OAR! LA Di oe ie ;

: Jurisdiction ree Ne

IL. The haates thie Is Clearly Correct _____-* _

III. The Question Involved Is No Longer Important

_ in the Administration of the Act _.-____-_*____

Conchasion ipanielicaeecpunainacseoise a uaa bedtensucaNlccaaat

ern | |

A. Complaint Sie ca een scceeseseaieildieeaae

Te EE seh didcnencacae eee ee en

C. Order Tiga eh Cet ented oe oe Poca

D. Affidavit of Martin M. Mason _________-____

E. Certification of Election on eens Seanad ccna

F. Statutes Involved ____________ Oe RSL ROE -

TABLE OF AUTHORITIES.

Calhoon v. Harvey, 379 U.S. 134-8

Gillespie v. U.S. Steel Corp., 379 U.S..148_____ 10

Local 57, Int’l. Union of Operating Efigineers v. wae oe

346 F. 2d $52 (CA+1, 1965) 8 9

Local Lodge No. 124 v. N. L. R. B., 362 U. S. 41 aie ©

‘Wirtz v. Local Union No. 9, Int’l. Union of Onetetins

Engineers, 51 L. C. § 19, 579 (D. C. Col., 1965) 9

Wirtz v. Local Unions No. 9, etc., 366 as | =

OE iy = ere aT Gabba Rbalatacaibon. 7 -

Wirtz v. Local 153, Glass Bottle Blowers -Association, :

etc., No. 1115, ‘filed March 3, 1967 ___________. 2, 6

Wirtz v. Local Union 169, Int’l. Hod —gaiiegial ete.,

246 F. Supp. 741 (D. C. Nev. 1965) _~__- . ¥

Wirtz v. Local 191, Int’l. Bh’d. of Teamsters, 321 F. pene

‘2d 445 (CA-2,* 1963) ae 9

“Wirtz: v. Local Unions No. 406, etc., 254 F. Supp.. 962’:

Gee i I Gece 9

Wirtz v. Local Unions 410, etc.;, Int’l. Union of Operat-

ing Engineers, 366 F. 2d 438 (CA-2, 1966) _____ 6, 7

‘ United States v. Munsingwear, 340 U. S. 36 _______ 7, 10

Statutes,

Labor-Management eporting and: Disclosure Act of

1959, 73 Stat. 519 et seq.:

_ See. 402 (29 U! S.C. 482) _. ie

‘Sec. 601(a) (29 U.S.C. 521(a)) =-----+---2, 9,19

National Labor Relations Act, Section- 10(b), 61 Stat.

-146,- 29 U.S.C. § 160(b) - net aliisentoiesceaomauliias im

a8 U8. C. 1964(2) _——— rae ae

: ok Cs See bctidnuenebccass, Oe

Other. .

Cox, “The Role’ of Law in Preserving Union Democ-

. racy,” 72 Harv. L. Rev. I I ect osc 9

—§. Rep. No. 187, 86th Cong., 1st Sem. (1959), p. 21 8.

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“S i No. 1117.

~ In the Supreme Court of the United States |

SS

\ OCTOBER TERM, 1966.

Ww. WILLARD WIRTZ, eis .

Secretary of Labor, | alate .

Petitioner, | ;

<

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LOCAL UNION NO. 125, LABORERS’ INTERNATIONAL 4s

UNION = NORTH AMERICA; AFL-CIO,

’ Respondent. . a

On Petition For A Writ oF Cusietcnean TO THE

Unitep States Court or APPEALS —

For THE SrxtH Cfrcurr.

é

- BRIEF OF RESPONDENT IN OPPOSITION.

Pa |

OPINIONS BELOW.

The order of the Court of Appeals is reported un-

officially at 56 L. C. 11,781 and found at pp. 9-10 of the

_. petition.’ The opinion of the district court striking portions

— of the complaint is reported at 231 F. Supp. 590 and set

forth at pp. 11-22 of the petition. The opinion of the dis-

_ trict court sustaining the motion of the Secretary of Labor

for summary judgment with respect to the remaining por-

tions of the complaint is reported unofficially at 53 L. C.

{| 11,213 and set forth at pp. 23-42 of the petition.

. which was not challenged by ahy union member.

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| ive es

i | JURISDICTION. |

‘The ‘eadlatiaih of the court. of appeals ¥ was entered, on

December 15, 1966 (App. A of petition). The petition for

a writ of certibrari was filed on March 3, 1967. The juris-

diction of this vps as is invoked under 28 U. S.C. a

> at. a

" QUESTIONS PRESENTED,

¥ Whether an unchallenged intervening union gen-

eral election renders anoot. an action “bythe Secretary -’

under’ Title IV of the Labor-Management’ Reporting and

Disclosure Act of 1959, to set aside a prior union election

2.. Whether the exhaustion of internal remedies pro-

vided by the Act is a prerequisite to the Secretary’s exer-

cise of power to institute an action to’ invalidate an elec-

tion. . 5 Vig la = »

STATUTE INVOLVED. |

The relevant statutory. plovisions' are set forth i in <a

pendix F to the petition for writ of certiorari in Wirtz v.

Local 153, Glass Bottle Blowers Association, etc., No. 1115,

filed March’3,. 1967. Also involved is Section 601(a) of

the Act, 73 Stat. 539, 29 ILS. ¢. S5a1(a), set’ ee. in at

Appendix F, p. 19, infra.

mee 3 -

STATEMENT OF THE CASE.

On June 8, 1963 respondent Union held its general .

_ election of officers. The,office of Business Representative

was not filled because G votes for two nominees resulted

ina tie. A runoff election was held on J saa 13 to ea

the a . :

An unsuccessful iaistilaks filed | a wishes with the.

international union claiming irregularities in the conduct

of this run-off election. He had not raised any objection to

. the prior general election of June 8, 1963. After a hearing

the international union determined that the irregularities

shown did not affect the outcome of the election-and turned

- down the charges. The candidate thereafter filed a: pro-

-test with the Secretary claiming that the run-off election

had been conducted in violation of the Union’s constitution

_ and bylaws. . av

| Following an investigation the Secretary brought an

* action on February 7, 1964 in the district court to invali-

date the challenged run-off election of July 13, 1963, as

well as the earlier election of June 8, 1963. The complaint

“ alleged that irregularities affected. the outcome of both’

‘ elections, and a new general election under the supervision

of the Secretary was Sought pertaining to all union —

‘(Appendix A, pp. 11. 15, infra}, ‘i

On March 4, 1964 the Union moved to di ismiss that

part of the complaint seeking to declaré null and void the

June 8, 1963 general ele¢tion of officers. The District

_ Court (Connell, C.J.) granted this motion, holding that ,

._ the Secretary was precluded from attacking this election

because the union member had not complained about this

election,“and thus failed to exhaust internal union réme-

dies CApp. B of petition). On August 19, 1964 the Union

_ answered the remaining part of the complaint not affected

by the-district court’s ruling.

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. Thereafter, on April 18, 1966, the district court (Bat-"

tisti, J.) granted the Secretary’s motion. for summary

judgrhent respecting the remaining portion of the com-

plaint directed to the run-off election of July 13, 1963

for the office of Business ‘Representative. It ordered the

next scheduled election for Business Representative to be.

: conducted under the Secretary’s supervision with the win-

ner to serve a full: constitutional term (Appendix. B,

p.- 18, infra). The Union did not appeal from this judg-

. ment,

ad

* officers was held on June 11, 1966. The election of Busi-

ness Representative was held at the same time and place

under Supervision of the Department of. Labor as directed

by the’ district court. The Union’s election judges re-

quested the attendance of the Secretary's S$ representatives

during the general election of officer's and they remained

until all ballots were counted ‘and the winners announced

2° The Union’ S next’ » acaba scheduled ' -election of

(Appendix D, pp. 17-18, infra). The successful candidate © -

was-certified to the district court (Appendix E, pp. 18-19,

infra).

~ On June 10, 1966 the Secretary filed notice of appeal

from the orders of July 14, 1964 dismissing the portion .

of the complaint challenging the general election, and of.

April-18, 1966 granting the Secretary’ S motion for suth-

mary judgment.. The Union filed its motion to dismiss in

the court of appeals on August 20, 1966. On December |

15, 1966 the court of appeals entered its order, holding

that the union officers held their positions pursuant to the

June, 1966 general election, and this fact rendered moot

the question on appeal. To prevent the district court deci-

* sion from serving as precedent; it vacated the judgment of .

‘the district court dismissing a portion. of the Secretary’s

suit, and remanded with instructions to dismiss the entire

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complaint as moot insofar as it related to ig 1963 general

election (App. A of petition). |

- ARGUMENT.

I.

“There Is No Conflict of Decision.

The Jui une, 1966 general election held at the same time’

_and place as the supervised election for Business Repre-

sentative, was not affected by any irregularity. Indeed,

the Secretary conceded this by stating.in the petition:

“* *_* there is no evidence .in the record as to whether the

violation continued to 1966 * * *” (p. 4). None of the

deficiencies which affected the run-off election in J uly,

- 1963 were present at the supervised election in June, 1966.

ee The Secretary suggests that persons not eligible to

vote in the supervised election. for Business Representa-

tive “could have voted” at the same time and i in the same

- hall, in the unsupervised general election (footnote 1,

p. 4 of petition). This is not the fact. Individuals found

not eligible to vote in the supervised election were not

permitted to vote in the general election ( Appendix D,

pp. 17-18, infra).

The District Court directed a super tieed election,

recognizing that “many practical problems were involved”

(App. C: of petition, p. 42). Election details were worked |

out carefully between the Secretary’s representatives and —

the Union’ s “officers (Appendix D, pp. 17-18, infra). The

results were certified. on J uly 7, 1966 by the Acting Secre-

-tary of Labor (Appendix E, pp: 18-19, infra). It is not

likely that the Secretary would certify that the supervised

part of the election was conducted in accordance with the

Act, and remain silent if there had been irregularity with

— to other parts of the election events.

ee: 6

It is | clear therefore that the aiecaiad union officers

hold office as a result of an intervening unchallenged elec- |

tion in 1966. Their right to office for a full constitutional -

term should not be jeopardized by irregularities existing

in the 1963 election. To recognize the asserted 1963 i irregu-

larities would mean setting aside the unchallenged June,

1963 election, despite the intervening 1966. general elec-

tion, and repeating the elaborate nominating and election

procedures under the Secretary’s supervision with the. °

outcome in no way affected by what occurred four years

before. This is wholly unnecessary and would serve no

remedial purpose. For, as was stated in Wirtz v. Local

Unions 410, etc., Int'l. Union of Operating nietanai 366

F. 2d 438, 442 (CA-2, 1966): .

“e * * It would serve no practical purpose with re-

spect to these locals to declare their 1962 élections

void because the terms of office thereby conferred

have expired. And because Title IV- does not permit |

the Secretary to seek either to enjoin future elections,

or to declare a given candidacy requirement unlawful

absent a valid complaint and an investigation of its.

application to a specific violation, * * * we conclude

that we have no power to afford the Secretary relief

and therefore that these cases are moot.” —

This reasoning was approved and followed by the Court -

of Appeals for the Third Circuit in the Glass Bottle Blowers

case (Appendix A of petition in Wirtz v. Local 153, Glass

Bottle Blowers Association, etc., No. 1115,.October Term,

1966), and was followed by the Court of Appeals for the.

Sixth Circuit in this case.. There is no conflict among the -

courts of appeals on this isstie one the ‘Secretary does not

contend that there is. |

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Tl.

The Decision Below Is Ciesty Correct.

The court of appeals accepted the Union’ Sargument .

that setting the 1963 election aside and directing a super-

vised election would “serve no-purpose here in the light of |

the subsequent election which has been held” (App. A, p.

10 of petition). It also adopted the Secretary’ S suggestion

that if the case.was moot, it should be’ remanded “to the

_ district court with directions to vacate the J uly. 13; 1964

decision * * * and to dismiss as moot those portions of the

complaint which are addressed to the union’s general

election of officers held June: 8, 1963” (Secretary’s Re-

sponse to Motion to Dismiss Appeal, p. 12, court of appeals

proceedings). ‘This is what the court below did, relying

upon this Court’s decision in United States v. Munsing- -

~ wear, 340 U. S. 36 (App. A, p. 10 of poe and it was.

clearly correct in doing so.

Ii.

| -_ Question Raivebied Is No Longer. Important in the

Administration of the Act.

The exhaustion of remedies provided by the Act is

a prerequisite to the Secretary’s exercise of power. This

_ was the view of the district court in the instant case and

of the courts of appeals in Wirtz v. Local Unions. 410, etc.,’

366 F. 2d 438 (CA-2, 1965), and Wirtz v. Local Unions .

No. 9, ete., 366 F.2d 911 (CA-10), App. A, Pp. 11 of

petition i in: No. 1116, October Term, 1966.

The exhaustion requirement may indeed restrict the

Secretary’s remedial power but Section 402 of Title IV

of the Act is self-limiting. It provides that only when the

urtlion member “has exhausted the remedies available un-

der the constitution and bylaws” may he file a complaint —

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with the Secretary. The Secretary investigates “such com-

pleint” and: if he finds probable cause to -believe that an

unremedied violation occurred, he may file suit against

the union. Pending a court décision, the challenged elec-

tion is “»resumed valid” and the union’s affairs continue |

to be cunducied by the officers elected in the challenged

‘election. Title IV, § 402; 29 U.S. C. § 482.

| ‘No claim of any violation was made. by the meiner

concerning the Union’s June, 1963 general election. The

tie votes cast for Business Representative caused ‘the July

run-off election, and triggered the protest by the unsuc-

cessful candidate about irregularities in the latter contest

only. The Secretary sought however to set, aside- the un- ~~

challenged June election as well as the second contest to

resolve the tie and elect the Business Representative. _

When the district court sustained the Union's motion

to dismiss that portion of the complaint directed to the

June, 1963 election (App. B of petition, pp. 11-22), it was

faithful to the legislative history of the Act and the statu- °

tory scheme enacted to carry out the intent of Congress.

The legislative history is conclusive that’ as a precondition

to.the Secretary’s action, “* * * the member must: show

that he has pursued any remedies available to him —

the union and any parent body in a -timely manner.’

S. Rep. No. 187, 86th Cong., Ist Sess. (1959), p. 21:

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

The statutory scheme is not affected by the complain-

ing member’s ability to file “a carefully drafted com-

plaint.” However artless the complaint may be worded,

. if internal remedies are to be followed it is necessary that —

unions be given the opportunity to correct irregularities.

Congress deliberately set forth a procedure to be followed. -

Had it wished to entrust the Secretary with an open-end

power it would have cone so, as it did in ihe National

9° er

Labor Relations Act, for example, where the power to

issue a complaint is not limited by an exhaustion pro-

cedure, but rather by a time limitation that “no com-

plaint shall issue based upon any unfair labor practice

occurring more than six months prior to the filing of the

charge * * *,” Section 10(b), 61 Stat. 146, 29 U.S. €.

§ 160(b); Local Lodge No. 124 v. N. L. R. B:, 362 U. S.

41, mig | es oF

The reasoning of the district court below in refusing

to permit. the Secretary to expand the base of protest was

. cited with approval in Local’57, Int’l. Union of Operating

Engineers v. Wirtz, 346 F. 2d. 552, 554 (CA-1, 1965).

The Court of Appeals for the First Circuit held that the

power to set aside a union election “is: conditioned upon

‘ the filing of a complaint by an individual union member

who has exhausted his internal union remedies.” ‘The

court went-on to distinguish between the statutory limita-

_tions on the Secrétary’s power to initiate court action to

vacate an election under Section 402, and his power to

investigate union elections under Section 601 (Appendix ©

F, p. 19, infra). ‘Wirtz v. Local 191, Int'l. Bh’d. of Team-

sters, 321 F. 2d 445, 448 (CA-2, 1963), followed.

- It is not unreasonable to restrict the Secretary to

the issue complained of as a condition for the exercise of ©

power.’ If Congress believed otherwise it would not have

presumed the challenged election to be valid and allowed

elected union members to hold office. __ |

The Secretary waited until June 1966 to appeal from

_ the 1964 judgment limiting relief to the office of Business

1 Wirtz v. Local Unions No. 406, etc., 254 F. Supp. 962, 967.

(D. C. La. 1966); Wirtz v. Local Union No. 9, Int’l. Union of -

Operating Engineers, 51 L..C. § 19,579 (D. C. Col., 1965);

Wirtz v., Local Union 169, Int’l. Hod Carriers’, etc., 246 F. Supp.

741, 751 (D. C. Nev. 1965); Cox, “The Role of Law in Preserving

_ Union Democracy,” 72 Harv.. L. Rev. 609, 633.

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Representative. This ruling was a “final decision,” 28

Y. S. C. § 1291, and, “Under § 1291 an appeal may be

taken from any final’ order of a district court,” Gillespie

v. U. S. Steel Corp., 379 U. S. 148; 152. In the early con-_

struction of the Act a timely appeal from the district court's

judgment for a speedy resolution of the ‘question involved:

‘would not have been inconvenient. and the cost insignifi-

cant. There would then be no occasion for the delay now

-. complained of by the Secretary.. Cf. United States v. Mun-

singwear, 340 U. S. at 40, 41. The issue of ‘law is now.

settled.

_ CONCLUSION.

an For the foregoing reasons, the pidition for a writ of 7

certiorari should -be denied.

Respectfully submitted,

Mortimer RIEMER, |

| Counsel for Respondent Union.

Of Counsel: as )

Rosert J. CONNERTON.

April, 1967..

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APPENDIX A.

ae COMPLAINT.

pa eee Nie

‘Plaintiff brings this action under Title IV of the

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Labor-Management Reporting and Disclosure. Act of 1959

(Act of September 14, 1959, 73 Stat. 519 et seq., 29

U.S. C. 401 et seg. (1958 ed. Supp. av)» hereinafter re-:

ferred to as the Act.

II.

a urisdiction of this action is conferred upon the Court —

by Section 402(b) of the Act (29 U.S. C. 482(b)).

Til.

Defendant Local Union No. 125, ternational, Hod

Carriers’ Building and Common Laborers’ Union . of

America, hereinafter referred to as Defendant Local, is

and at all. times relevant to this action has been, an un-

incorporated association maintaining its principal office at

29 Fifth Avenue in the City. of Youngstown, County of

Mahoning, State of Ohio, within the jurisdiction of this

Court. ‘

s 7 a

IV.

Defendant Local is, and at all times relevant to this

action has been, a local labor organization engaged in an

industry affecting commerce within the meaning of Sec-

tions 3(i), 3(j) and 401(b) of the Act (29 U. S. C. 402 (i) —

and 402 (j) and 481 (b))..

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V.

Defendant Local, purporting to act pursuant to and

in accordance’ with the constitution of, the International

- Hod Carriers’ Building and Common Laborers’ Union of

America, hereinafter referred to as the International, and

Defendant Local’s constitution, conducted an election of

. officers which consisted of an election held on June 8,

1963 and a run-off election for the office of Business

| Representative on July 13, 1963. Said elections were sub-

ject to the election provisions of Title IV of the Act.

: 2. ie . |

- By letter dated August 11, 1963, a member. in good

standing of Defendant Local, acting pursuant to and in,

-accordance with the International’s constitution and the

constitution of Defendant Local filed a protest 4nd appeal

to the General Executive Board of the International Union |

concerning the conduct of the July. 13, 1963 run-off elec-

‘tion. Having received a final denial of his protest by the

General Executive Board by letter dated December 2,

1963 the member on December 9, 1963 filed a timely com-

plaint with the plaintiff herein, alleging violations of

. Section 401 of the Act (29 U.S.C. -481), all in accordance

with Section 402(a): of the Act’ (29 U.S. C. 482(a)).

~ VII.

Pursuant to Section 402(b) of the Act (29 U. S. C.

482(hg), Plaintiff proceeded to investigate said complaint

and, as a result of facts shown by said investigation, found

probable cause to believe that violations of Title IV of the -

Act had occurred with respect to both elections referred

. to in paragraph V and had not been remedied at the

time of institution ‘of this suit, and that sich violations.

may have affected the outcome of said elections.

De

De

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VIII. . el gw og

Defendant Local violated Title IV of the Act Ag

the elections conducted on June 8, 1963 ane J uly 13, 1963 |

in the following respects:

(a) Defendant Local failed to provide adequate .

safeguards to insure a fair election.on June 8, 1963, -

_ in violation of Section” 401(c) of the Act (29 U.S. C.

_481(c)). by permitting unauthorized ballots to be

used and counted and by failing to provide adequate

safeguards. oa ;

(b) Defendant failed to conduct the deltas

; of June 8, 1963 and July 13, 1963 in a@@cordance with

its aforesaid applicable constitutional provisions, in

_ violation of Section nen of thé Act (29 U. S. C.

— 481(e)), a4! follows: |

“ (1) bers not in continuous good standing '

were permitted to be candidates in the elections of

June 8, 1963 and July 13, 1963;

(2) Members. delinquent in dues far April,

- 1963 were permitted to vote on June 8, 1963;

(3) M bers who had not completed. pay-

* ment of readmission fees w were permitted to vote on

June 8, 1963;

(4) Members ie had not paid the corttti

tionally required readmission fees were permitted. |

. to vote on June 8, 1963; «+

(5) Members delinquent i in aia for May. 1963 .

were permitted to vote at the July 13, 1963 run-off

election; . Li.

(6) Meiners who had not setae payment

of readmission fees were permitted to vote at-the .

July 13, 1963 run-off election;

14

(7) ‘Members who had not paid the constitu-

* tionally required readmission fees were permitted

to vote at the July 13, 1963 run-off election.

The violations of Section 401 of the Act (29 U. S. C.

481) found and alleged Sbove may have affected the out-

come of the elections of June 8, 1963 and July 13, 1963.

WHEREFORE, Plaintiff prays for judgment.

(a) declaring the following elections to be null and

_ void;

i. the election of its officers held by Defendant

Local on June 8, 1963; '

ii. the run-off election held for the office of Busi-

ness Representative held on July 13, 1963;

(b) enjoining and restraining Defendant Local, its

_ officers, agents, servants, employees, attorneys and all

persons in active concert or participation with them from

concealing, selling, conveying, transferring, or otherwise

disposing of any property or assets belonging to said de-

fendant or in which it has any direct.or indirect interest .

until further order of the Court;

. (c) directing the conduct of a new election of officers

. under thé supervision of the plaintiff;

_(d) for the costs of this action; me

(e) = such other relief as mid be appropriate.

SN tenn april iw mole 1. meet citi ahi

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APPENDIX B.

"ORDER.

(Entered April 18, 1966.) .

Upon consideration, after argument by opposing coun-:

sel,

Ir Is Orperep ‘that plaintift’s motion for summary |

judgment, with regard to that portion of his complaint

directed to the run-off election of J uly 13,-1963 for the

office of Business Representative, is hereby granted.

, Ir Is Furruer Orverep that the run-off election con-

ducted by the defendant on J uly 13,1963 for the office of

‘ Business Representative i is hereby declared to be null and

void and set aside; that the next regularly scheduled elec-

tion fdr the office of Business Representative will be held |

under the supervision of the plaintiff, as provided for in

Section 402(c) of the Act (29 U. S. C: 482(c)) and in

accordance with the Act and defendant’s uniform local

constitution as long as. they are not inconsistent with the

provisions of the Act; that after such. election has beén

held, the. ballots canvassed and results announced, the

"successful candidate will be installed in office as defend-

ant’s Business Representative for a full constitutional term

of office; that this action will hold on the docket of. this -

-. Court pending. completion of the nomination, election and

installation of the officer. elected as hereby ordered; and

‘that after completion of- the nomination and election SS

said officer, if plaintiff certifies to the Court that said elec-

tion was conducted in accordance with the provisions of

the Act and defendant’s constitution so long as they are

not inconsistent with the provisions of the Act, the Court

‘may thereupon, upon approval of such certification, enter

a judgment declaring that such person has been elected

to. said office.

FRANK J. Barristt,

United States District Judge.

i i STE

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APPENDIX Cy

ORDER. |

(Entered July 22, 1966.)

It appearing to the Court that pursuant to an order of

this Court dated April 18, 1966,.the defendant has con-.

ducted a new election for the office of Business Representa-

tive under the supervision of the plaintiff, and that the .

plaintiff has filed a certification of election, certifying the

name of the person who was elected to such office:in such

election, and further certifying that the new election was

-conducted in accordance with the provisions of Title IV -

. of the Labor-Management Reporting and Disclosure Act

. of 1959 (29 U.S. C. 481 et seq.) and in conformity with

_ the constitution and bylaws of the defendant labor organi-

zation, so. far. as lawful and practicable; and the Court

- having considered said‘ certification and being fully ad-

vised, it is, upon motion of the plaintiff, hereby :

ADJUDGED, OrpvERED, anv Decreep that Andrew Jack-

son, the person named in the certification of election filed

. as aforesaid by the plaintiff is the duly elected officer of

> the defendant labor organization for the designated office

listed therein, antl for a full constitutional term. of office.

FRANK J. Baritstt,

United States District Judge-

_

a

APPENDIX ‘D.

AFFIDAVIT OF MARTIN M. MASON..

(Forming Part of Motion to: Dismiss in Court of Appeals.)

Martin M. Mason, being first duly sworn, deposes

and says that he resides at 618 North Loveless Avenue,

in the City of Youngstéwn, Ohio arid that he is and has

been at all times pertinent hereto, the Secretary-Treasurer

of Laborers’ International Union of N orth America, Local

No. 125. | |

Your affiant says further that Laborers’ International

Union: of North America, Local No. 125, held its general

election of officers on June 11, 1966 from 9:00 A.M. to

7:00 P.M. at its hall at 29 Fifth Avenue, Youngstown,

Ohio, and that a special election for the office of Business

Representative was’ conducted on the same day under

the supervision of the — of Labor.

Joseph D. Caiola, Rocco DeMarco, Charles S. Mato

and Richard A. Crino represented the Department of .

_ Labor in supervising the election for Business Representa-

tive and observed and assisted during the general election

' of officers at the request of the election judges. The repre-

sentatives handled the eligibility lists and in several in-

stances determined that members were’ not eligible to

vote. These members did not vote in either election. The |

representatives also supervised the distribution of ballots

_ with election judges, handing out ballots for both elections.

Department representatives: also assisted members who

could not read, in the voting booth and in depositing ballots

in the box. ; = ee

- The ballots cast in the election for Business Represent-

ative were counted first and this count was completed at

approximately 9:00 P.M. Thereafter, the representatives

_ of the Department of Labor stayed and~observed the

e\

‘

18

counting and tally of ballots cast in the general election

and the declaration of results. The representatives left

after all ballots were counted and the election — an-

nounced the winners.

he ” Makecm M. asen.

_(Jurat omitted.)

APPENDIX E.

CERTIFICATION OF ELECTION. |

The nominations and election having been. conducted |

in the above matter under the supervision of the Secretary

of- Labor, United States Department of Labor, pursuant

to an Order entered by: the Court on the eigh@enth (18)

day of April’ 1966, and the said nominations and election

having been conducted in accordance with the provisions

‘ of Title IV of the Labor-Management Reporting and Dis-

closure Act of 1959 (29 U. S. C. 481. et seq.) and in con-

formity with the constitution and by laws of the defendant

labor organization so far as lawful and practicable, there-

fore: . : :

Paesennt to Section 402 ( é) of the Lelsin Mienmemant

Reporting and Disclosure Act of 1959 (29 U. S. C. 482 (c) ).

Ir Is Heresy Certiriep that the following named

candidate has been duly elected to the office designated:

Andrew Jackson Business Representative. -

. As part of this Certification, the following exhibits

are attached hereto, which are true copies of the documents

in the record of the holding of the election: ©

Exhibit: A. Memorandum from Mr. Frank M.

Kleiler, Director, Office of Labor-Management and

_ Welfare-Pension Reports,. United States Department

of Labor, reporting on the supervision of the election.

19

Exhibit B. Copy of Notice’ of Election. '

Exhibit C-: Interpretation of Article VII, Section '

6 of the Hod Carriers’ Uniform Local Union Con-

_ Stitution rendered by the General President.

Exhibit D. Certification on Conduct of Election.

‘Exhibit E. Copy of Official Tally Sheet.

Exhibit F. Certification on Tally of Ballots.

Signed at Washington, D. C., this 7th day of J uly,

1966.

fad Jeune ¥. HENNING, |

Acting Scary of Labor. |

eters ‘ STATUTES INVOLVED.

Labor-Management Reporting and Disclosure Act of 1959,

. 73 Stat. 539, 29 U. S. C. 521.

TITLE VI. MISCELLANEOUS PROVISION S.

INVESTIGATIONS BY SECRETARY.

(a) The Secretary shall have power when he believes

_- it necessary in order to determine whether any person has -

violated or is about to violate any provision of this

chapter (except subchapter II of this chapter) to make an

investigation and in connection therewith he may enter

such. places and inspect such records and accounts and

question such persons as he may deem necessary to enable

him to determine the facts relative thereto. The Secretary

. May report to interested persons or officials coricerning —

the facts required to be shown in any report required by qoakes

this chapter and concerning the reasons for failure or re-

fusal to file’ such a report or any other matter which he

_ deems to be appropriate as a result of such an investigation.