# Brief in Opposition to Petition for a Writ of Certiorari — Wirtz v. Local Union No. 125 > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386412_0122%3A04 ## Record - **Collection:** Supreme Court brief - **Document type:** Brief in Opposition to Petition for a Writ of Certiorari - **Published:** January 1, 1968 - **Citation:** 389 U.S. 477 ## Text €-Supreme Court, U.S. = - or PATE ee ts Bh | | 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 . ~ . oe . ‘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. “ . ; 5 ; ‘ aE : @ ; F ‘ 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 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. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386412_0122%3A04. Public record. Not legal advice.