Petitioners Brief — Wirtz v. Local Union No. 125

Supreme Court brief1968

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SUPREMI Cou : :

) a OUR 7 and 58 a | “Avs. 16 1967.

= the Supreme Gourt of the slate CLERK

ops ak, OONOBRR, Term, 1960"

Ww. Waar Wines, Stonmrany OF Lasos, PETITIONER ' ,

(rs Vv, ;

; Loca, 153, "Gena Bomiz’ Bowers: ‘Assocrario OF

[kath aie “THE, Unie STATES AND Canapa, sani ooAy Fein eae

Ss a 3 |

W: Wariao Wirtz, SECRETARY OF, Lapor, PEITTIONER

. ape | Ke v.! “4 hy

x Loca Untow No. 125, Lanorers’ Ln TERNATIONAL

: | Unton ony ORTH ‘AMERICA, aL ES /

ON writs OF. CERTIORARI TO THE UNITED STATES COURTS OF

yp APPEALS FOR THE THIRD. AND vauceas Hoe ae Cl cing

- BRIEF. FOR THE SECRETARY OF LABOR.

! : Ae

4 ‘ {

oe ee oR Ras THURGOOD MARSHALL, a

| ; Pid Nye - ol Solicitor General, -

oe CARL’ EARDLEY, ‘

‘N tA eR bet Aotteg Assistant ‘Athorhey. General,

4's LOUIS F. CLAIBORNE, — . ‘

ra Uh “be \RIGHARD A. POSNER, AY eats

oN) Assistants to the Solicitor General, . k :'

<F Spt Stl eae S ROSENTHAL, ae

oR Re hay” ice dy) , BER ERT V. ZENER, > eh eS

cage Sere Bea oF eR PONS ud ee x Attorneys; as

br Cat NIE SE Jigar t. A oe 4 ‘ Department of Justice, f

ARC pees <a ik Pgh a a, ‘Washington, D.G. 20580.

mf Ah ze ‘CHARLES ‘DOMARUX, | ‘ty . : :

5 Ad | si Solicitor, eo" & sedan € > is i

eee 5 ‘EDWARD D. FRIEDMAN, = ) Pea ek eee :

sl. Deputy Spliditer, PS Wag Pe TS

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ao INDEX, j

oa) Page f

RR NS os Oe ae ae ee eal ie 1

Remap senicam, EE REED! + Sas | Le eens 2

Questions presented___________________ katara. 2

Statute involved:___............_-._ 22-0 et es 3

Statement_ ____ idee ong tcndien aad i eR re 3 ,

1. No. 57____- oe. Sager hipack ieee ke hin es. 2 = 3

eS ER renee eee. tk eee ON me:

Summary of aa a ea ee

Argument: | \ a :

I. In both cases, the courts of appeals erred in . =

holding that an action by the Secretary of - j

Labor to declare an eléction void and to direct.

ce a new election under his supervision was = © © — - | 4

| i mooted by the intervention of the union’s next -

regularly scheduled election_______________-_ 15

A.-The poligy of Title IV is td ensure fair

and democratic union elections___.___ 17. ;

B. Representative union leadership cannot ¥ ‘

oe _ be assured if the holding of a new, a

_ @lection by the union precludes the i

imposition of any sanction for a pre- ; ;

vious unlawful election__-_________ a. ne.

— C. There is no other effective remedy-under— a.

; ' Title IV to assure the elimination ie - X

. the adverse effects of an unlawful ; e

aoe OE TS TER 27 :

1. Expedited proceedings: reith ec ae eee 28 mae =

. A new-suit challenging the second | ‘

WR ec tke ee — % eek,

» — 3, An injunction against the holding -B,

; of another election pending for ah doe

+ a, completion of the ‘Secretary's 2m

- suit__ ee se - 34

4. An injunction against the practice

found to violate the Act_____- 34

o. i *w

271 926-7 1 x

\a-

= aS RMPTER Re Keer PTE Aw hai or

. .

Te Pe ey Binh Stress 2%

Argument—Continned

II. In No. 58, the district court ‘erred in holding

that the Secretary in his suit may not challenge

the general election in which the violation

‘complained of occurred, or challenge the elec-

tion of other officers, because the union member

specifically challenged the vidlation only as it

affected the run-off election held with respect

to a single office for which the complainant Page a

was a candidate- - ------- fal tebna een 38

A. The additional issues raised in the

Deets Somplaint were fairly within

: the scope of the union member’s

complaint to the union-------------- 40 .

B. Even unrelated violations, discovered in -

the course of ‘the Secretary’s investi-

_ gation of a union member’s complaint,

may be raised in the Secretary’ s action 44

III. In No. 57, the district court erred in not finding -

that the 75-percent. attendance requirement

“may have affected” the outcome of the 1963

| . WIN 6 nc ce ccccacneesns- awe eee rae, 49

Bic cnawnssdnseauraantqususcnayeosse 53

{AEE . cso ccc nose oR EA Sd ee ONE aad eesktee hd a

CITATIONS

Cases:

Calhoon v. Harvey, 379 ao | eee 18, 32, 41, 44, 48

________ California v. San Pablo & Tulare R.R., 149-U.S.-308-- 15

Federal Trade Commission v. “Goodyear Co., 304 US.

ue havens seetecaveterapeonenepene 26

. Goldberg v. Amalgamated Local Union No. $56, 202 F..

. > 5 Bee O04... DT US ae arias 25, 26

Goldberg v. Trico Workers Union, 53 L.R.R. M. 2875-_- 20

Labor Board-v. Fant Milling Co., 360 U.S. 301------- 20, 47.

: Labor Board v. Jones & Laughlin Steel Corp., 331 U.S.

Uebel eda dang ehosenenespesenaeece 26

_ Labor. Board v. Piseiataiiate Greyhound Lines, 303

0 genie =a) Sire. ie eee 26 ,

_ Local 57, International’ Union of Operating Engineers ’

v. Wirtz, 346 F2d 552_.-...------------------- 45 .

“Local 74, Ete. v. Labor Board, 341 U.S. 707..--.----- * 26

" Cases—Continued

Local Unions Nos. 545, 545-A, 545-B, and 545-C,

International Union of Operating Engineers v.

Wirtz, C.A. 2, No. 499, decided July 28, 1967____-

Marlene’s Inc. v. Federal Trade Commission, 216 F.

Mitchell v. Southwest. Basincivina Co., 271 F. 2d 427-__.

National Licorice Co. v.. Labor Board, 309 U.S. 350--

Porter v. Lee, 328 U.S. 246...-..-0--------2 ee ene

_ Sears, Roebuck & Co. v. shai Trade Commission,

"+ 268 Fed. 307. ---2- Ravin eben nnnek Waka ea amit

Southern Pace. Terminal Co. v. Interstate Commerce

Commission, 219 U.S. 498_-..-.---.-.-.--.-- oe

Swift & Co.-v. United States, 276 U.S. nt... ~ ten

Texas & N.O.R. Co. v. Ry. Clerks, 281 U.S. 548_____-

’ United States v. Bates Valve Bag Corp., 39 F. 2d 162_

United States v. Bausch & Lomb Co.,321 U:S. 707_--

United States v. Republic Steel Corp., 362 U.S. 482__-

United States v. Trans-Missouri Freight Assn. ., 166

Walling v. . Helmerich & Payne, 323 U.S. EEE att

Walling v. Mutual Whoeleate Food & Supply Co., 141

S, 6 O0li2c.. i. Si MARR bed caddie bucks

Walling v. Reuter Co., 321 if & - > (eee PN SN

Wirtz v. Great Lakes District Local 47, Masters, Mates ,

eo RS Re eer

_ Wirtz v. Hotel; Motel and Club Employees Union,

Local 6, C. A. 2, No. 513, decided July 28; 1967__-

Page

' 38

35, 38

, 26

Wirtz v. Local 30, International Union of Qperating:

Engineers, 242 F. Supp. 631-..------------------

Wirtz v. Local 66, Glass Bottle Blowers Association, 268

Ph we ueinba wide cces osteo

Wirtz v. Local 191, Teamisters,'321 F. 2d 445_______-

Wirtz v. Local 559, United Brotherhood of Carpenters

and Joiners, 60 L.R.R.M. 2622_.......--..-..-.-

Wirtz v. Local 1752, ILA, 56 L.R.R.M. 2303, 2306- --

Wirtz v. Local Unions Nos. 9, 9-A and 9-B, Inter- .

national Union of Operating Engineers, 366 F.2d 911,

certiorari granted and decision vacated, May 15,

POT a 5 oe onan ecasesecasaccnne ewe wesc ceerceven

31, 39

tet

Oo Ot ate 08 Ay nt nse th hee Ted laa ai

Chess —Cunstaiead one

Wirtz v..Local Unions 410, j10A, /10B & 100, Inter- . -

national Union of Operating Engineers, 366 F. 2d Page

Pees We hos oc cea aaenwe bee 6, 10,17, 20,51 —

\ Wirtz v. Local’ Unions Nos. 545, Eic., 366 F. 2435... 17

\ Wirtz v. Teamsters ‘Industrial and ‘Allied, Employees |

ae Union, Local 78, 257 F. Supp. 784- . - ------------ 37.

., Statutes:

\. Labor-Management Reporting and Disclosure Act of

\. 1959, 73 Stat. 519; 29 U.S.C. 401 ef seg.:

\ 29 US.C. 401,------------------------------ 17, 55

or. eR: ee eens nee avecsacd . SOB:

es 39 U.S.C, 464_...---------------------- iclalaleials 35

Seas 29\U.S.C. 481. ...:-.--- heute anaes 3, 15, 19, 49, 56

| 29 US.C. oly TENET a aia * 50,56

29 .U.S.0,,481(c)_---------- FOE Gee e ee 22, 56

29 U.S.C. 481(¢).----.--------- oe . 3,5, 7, 22, 57

* $0 UGG: 408i. .cctauc inet odes. - 222s 3, 15, 37, 59

29 US.C. 482(a) a ars nate Aa ___ 18, 28, 40, 59

$0 U.S.C. 4896) 22s .- Taye kdise oe: 24, 28, 40, 45, 60

90 USiC, 483(6).-..-.2.-->awn-2----- 5, 24, 41, 49, 60

, 29 U.S.C. Ga ndvanententog: acaee me eee 29

: SD BO: GB... cc npanccnneteentngses 1941,

SAM A WIN * occunsnccidananaciackesaee - WO

Voting Rights Act of 1965, 49 U.S.C. vabr theta ei

' Miscellaneous: .

Bureau of Labor-Management Reports, pa of

Operations, 1063, 8.11... .cci pine ctvacee.enss 32

P 29 C.F.R. § 452. Ri et SOI AE CE 30

- 88 Monthly Labor Review 562 (1965) --------------- + 37

Summers, Judicial Regulation of Union Elections, 70°

Valé LJ. 1221.....---,----+---------- 22 -- ee - 22

United States Department of Labor, iumehary of Oper-

. ations, 1964, Labor-Management Reporting and Dis-

: , closure Act, p. 6....---------------------------- 32

ae * United States Department of Labor, 1965 Summary

Operations, Labor-Management Reporting ‘and Dis-

closure Act, p. 7... ------<-----22------------- 32, 37

@ United States Department of Labor, Union Constitu-

se __ tions and the Election of Local Union Officers (1965),

» 7°” Table 5, p. 22.------------------------+-------

p ; a Third International Dictionary: eagsahonmes 41

ite ee

Congressional Material: : Page

Conf. Rep. No. 1147, 86th Cong., Ist Sess. itis aaielaeas 50

Se GE, BEL REN wn tnandanacndondcacatscaceens 18

SU, CRN no cn aseccccnseewhacecceccen” OF * 6 ff

- H.R. 8342, 86th Cong., 1st Sess., Section 402(a), 105 . ies

Cong. Rec. 15707-15708, 45007... .....: icnien 36, 49 4

., HR. 8400, 86th Cong, 1st Sess._.:....:2..-..-.--- 36

H. Rep. No. 741, 86th Cong., 1st Sess_____._____-_- “i

S. 505, 86th Cotg:, 1st. Sess., 105 Cong. Rec. 08... 50

S. 748, 86th Cong., 1st Sess., 105, Cong. Rec. 1276... 17, 36

S. 1002, 86th Cong., 1st Sess, 105 Cong. Rec. 2067 -_ 45

S. 1137, 86th: Cong., Ist Sess., 105; Cong. Rec. 2666_- 36

S. 1555, 86th Cong., Ist Sess., 105 Cong. Rec. 16150_ 49

S. 3751, 85th. ‘Cong., I iatcithseicmcnaiintertaaaialacdhiae aiid 29

S$. 3974, 85th Cong., 2d Sess., 104 Cong. Rec. 18263... 29

_S. Rep. No. 187, 86th Cong., 1st Sess_.___- -- 18, 24, 42, 45 E

Interim Report of the Select Committee or Improper

Activities in the Labor or Management Field, S. Rep.

No. 1417, ¢5th a Mead nctuncesuneceines «23

ROOTES oe aro PERIOD PMA NL IK yee tee

OSES

gn the Supreme Gourt of the Gnited States

OcToBeR TERM, 1967

No. 57

W. Witiarp Wirtz, SECRETARY OF LaBoR, PETITIONER

—%. '

LocaL 153, Giass BortLe BLowers Association OF

THE UNITED StTaTEs AND Canapa, AFL-CIO

No. 58

W. Witarp Wirtz, SECRETARY OF LABOR, PETITIONER

| v,

Locat Union No. 125, LABoRERS’ INTERNATIONAL

UNION oF NortTH “AMERICA, AFL-CIO

ON WRITS OF CERTIORARI TO THE UNITED » braves COURTS OF

APPEALS FOR THE THIRD AND SIXTH CIRCUITS

BRIEF FOR. THE SECRETARY OF LABOR

OPINIONS. BELOW

In No. 57, the opinion of the court of appeals (57 R.

65) is reported at 372 F. 2d 86, and the opinion. and

_ judgment of the district court (57 R. 38) is reported

at 244 F. Supp. 745. The order of the district court

_ on the Secretary’s motion for post-judgment relief (57

R. 55) is unreported.

. In No. 58, the order of the court of appeals (58 R.

112) is reported at 375 F. 2d 921; the opinion of the

< (1) .

district. court striking portions of the complaint (58

‘*- R. 5) is reported at 231 F'. Supp. 590; and the opinion

of the district court on the Secretary’s motion for “—

summary judgment (58 R. 92) is unreported.

, io JURISDICTION ©

In No. 57 the judgment of the court of appeals (57

R. 70) was entered on December 16, 1966. In No. 58,

the judgment of the court of appeals (58 R. 112): was

entered on December 15, 1966. The petitions for writs

of certiorari were filed on March 3, 1967, and granted

-on May 15, 1967 (57 R. 72;.58 R. 114). We invoke the

jurisdiction of this Court under 28 U.S.C. 1254(1).

QUESTIONS PRESENTED

Title IV of the Labor-Management Reporting and

Disclosure Act of 1959 establishes standards for un-

ion elections. The Secretary of Labor, upon the com- .

plaint of a’union. member who has failed to obtain —

within -three months redress through the internal

processes of the union, is authorized to bring suit. If

the court finds that a violation of. the Act has oc-

curred which may. have affected the outcome of an

election, it is directed to declare the election void: and

to order a new election under the’ Secretary’s super-

oe vision. We present the followi ing questions sha rain to

this: statutory scheme:

1. Whether the Secretary’s suit is mooted if, dur-

— ing its pendency, the union holds another election.

2. Whether the Secretary may challenge only’ the

precise. violations specified in the member’s complaint

- to the union (No. 58).

3. Whether an annennendibl candidacy eiidilies, |

tion may have affected the election’s outeome when it

rendered more than 97 percent of the union member-

ship ineligible for elective office, including a member

. who had actually been nominated (No. 57).

STATUTE INVOLVED

The pertinent provisions of the Labor -Managemnent

Reporting and Disclosure Act of 1959, 73 Stat. 519, .

29 U.S.C. 401 et seq., are printed in the iia.

infra, pp. 55-62. :

STATEMENT -

1. No. 57. —The Secretary of Labor, on March 31,

1964, filed suit: asking the district court to set aside an

election which had been conducted hy the defendant

union on October 18, 1963, and to direct the holding

ofa new election, to be supervised by the Secretary.

The action was instituted pursuant to Section 402 of

' the’ Labor-Management Reporting and Disclosure Act

of 1959 (29. U.S.C. 482), which authorizes the Secre-

tary of Labor to bring suit in respect: of a violation of

Section 401 of the Act after receiv ing a complaint

from a. union member who has exhausted his internal

‘union. remedies, and directs the district court te grant

the relief prayed for if it finds that such-a violation —

may have affected the outcome of an election. The com-

plaint alleged that the union had violated Section

401(e) of the Act, which provides that in an election

subject to the Act every member of a labor or ganiza-

tion shall “be eligible to be a candidate and to hold

office (stibject to * * * reasonable. ‘qualifications uni-. -

formly imposed) * * *,”

It was stipulated that respondent, Local 153,-is a

271-926—67——_2

local labor organization ‘chartered by, and subordinate

to, the Glass Bottle Blowers Association of the United _

States and Canada, AFL-CIO, is engaged in an indus-

try affecting commerce as defined by the Act, and is

therefore subject to the requirements of Title IV;

_ that the International Constitution and the local’s by-

laws require all candidates for local union office to

have attended 75 percent of the monthly union meet-

ings in the two years prior to the election; that mem-

bers were not excused on account of illness but only

if they were required to be at work when the union

meetings ‘were held; and that excuses had. to be sub- |

mitted in writing to the union’s secretary within 72

hours of the missed meeting (57 R: 10-13). As a con-

sequence of these requirements, it was stipulated, only

11 members of the 500-member union were eligible to

run for office in 1963 (57 R. 12). In the election the .

Vice-President and Financial Secretary ran for re-

election unopposed (57 R. 17) and theré were no can-

didates at all for Recording Secretary and for three

Trustee positions; these positions were filled by. the

appointment of members who could not have quali-

fied as candidates under the meeting-attendance’ re-

quirement (57 R. 12).

This action was instituted after the Secretary had

received and investigated a complaint from a union

member, a nominee for the office of president of the

local, who was disqualified as a candidate because he

had attended only 17-of the 24 relevant monthly

_ meetings (57 R. 13). The minutes of one of the seven

meetings which he missed indicated that he had been

hospitalized .on the occasion of that meeting (57 R.

ER See ae

13). The union had failed to act on the member’s in-

ternal complaint (57 R. 11-12).

The district court held that the 75-percent attend-

ance requirement violated the ‘“‘reasonable qualifica-.

tions” provision of Section 401(e) because 75 percent

was too high a percentage, the provision governing

excuses was too limited and the effect ofthe rule too

restrictive (57 R. 44-46). Notwithstanding this con- oe

clusion; the court denied the relief requested by the

Secretary on the ground that the plaintiff had failed

to establish that the violation “may have affected the '

-. outcome” of the ele¢tion, as required by Section 402

'- (€)(2), because there was evidence that the complain-

ing member “voluntarily absented himself from meet- "

ings on occasions not justified by sickness or other un: |

avoidable emergency, and thus his failure to qualify

was not due to the existence of the unreasonable re-

quirements of the By-Laws but to his own voluntary

unwillingness to comply therewith”? (57 R. 47). It.

therefore dismissed the complaint, although if “re-.

tain[ed] jurisdiction” for further action “in the

event that the Secretary shall have found cause. to file

a complaint by reason of alleged violations of the Act

of similar character in connection with the next regu-

larly ensuing election of officers of defendant union”

- (57 R. 48). The Secretary appealed from the judg-

ment of dismissal. l |

The union’s next regular election was held in Oc-

tober 1965, and on the Secretary’s motion the court .

of appeals remanded the case to the district court to

/ ~ take evidence concerning that election (57 R. 49). The

6 J

: iY

Secretary “submitted an affidavit stating ‘that the 75-

-percent-attendance requirement had remained in effect

during the 1965 eléection; that in consequence only —

2.6 percent of the membership had been eligible to

run for, office ; that only eight candidates ran for, the

| eight union offices, with only one running for presi-

dent and no candidates being nominated for three of

the offices; that no members ‘were nominated who

were ineligible ‘under the 75-percent rule; and that

the rule was not waived on behalf of any nominee

(57 R. 52-54). The district court denied the Secre-

'- tary’s. motion to have the 1965. election declared

invalid (57 R. 55).

On appeal by the Secretary, the court of appeals —

- held that the Secretary’s challenge to*the -1963 elec-

‘tion had been mooted by the 1965 election. The court

relied on the decision of the Court of Appeals for the .

Second Cireuit in Wirtz v. Local Unions 410, 410A, —

~ 410B & 410C, International Union of Operating En-

gineers, 366 F. 2d 438, and in particular on the fol-

lowing reasoning: of - Second: Cireuit Mas F. 2d

at 442):

The exclusive remedy which Congress hag f

created for challenging a union eleetion, see 29 |

“U.S.C. § 483, is a suit by the Secretary to de-

clare the election void and to direct the con-

duct of a new election.:* * *

* * * Tt would serve no practical purpose

with respect to these locals to. declare their

1962 elections 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

ii a RBAEANE aL Sree ea

7 . 3

- a@ given candidacy requirement unlawful ab- oy

. sent a valid complaint an# an investigation of :

its application to a specific election *:* * we :

conclude that we have no power to afford the — :

Secretary relief and therefore that these cases -

are ‘moot. .

The court found it unnecessary to decide whether

the: trial court had been correct in ruling that the

imposition of the’ unreasonable meeting-attendance

qualifitation could not have affected ‘the outcome of

| - __, the 1963 election, but*stated that it would not-permit

a REA the decision to stand as a precedent on this contested

issue and, therefore, directed that-both the judgment

and the post-judgment order be vacated (57 R. 69).

au 58.—Respondent, a local. union engaged in

™ : an industry affecting commerce as defined by the

' Labor-Management Reporting and Disclosure Act

‘< and: therefore’ subject to the requirements of Title

IV, held a general election of officers on J une 8, 1963.

t ~The vote for thé office of rBusiness Representative

all _ Was a tie. A run-off election for that post was held

_ on July 13, 1963 (58 R. 92). Within one month-after

the run-off, the losing candidate in the run-off pro- ’

tested its conduct to the ‘union, on the*ground that ©

_Mmembers not in good standing’ had been permitted to

vote, in violation of Section 401(e). He then filed a

_ complaint with the Secretary of Labor repeating ‘his

‘ protest (58 R. 92). vt ; | |

Respondent is governed by the Constitution and the 12

Uniform Local Union Constitution of the Laborers’

International Union .of North America. Under the

Uniform Local Union Constitution, membership dues

Ro SNIP TR ins rer eter tela aa “

‘are payable on the first day -of each month; unless

they are paid on or before the last day of the fol-

lowing month, good standing is lost, and the member

is automatically suspended without notice and with

loss of all membership rights\ except the right to

readmission upon payment of a\fee (58 R. 37, 95).

Readmitted members are considered new members

from the date of readmission (ibid.). ‘Candidates for

office are required to have maintained continuous

“e membership in good standing for a period of two

-years in the International and at least one year in the

Local (58 R. 34, 107). Since any member whose dues

_ are,in arrears for more than two months is auto-

matically suspended, such arrearage occurring within

two years before the election makes a*member in-

_ eligible to be a candidate.

The International ‘Constitution requires respondent —

to remit to the International a per capita tax pay-

ment of $1.00. per member.each month (58 R. 30,

96). These payments are to be made only for mem-

bers -who hiave in. fact made current payment-of their

' ‘dues to the Local (58 R. 39, 98). However, during

the calendar year 1962 and until July 1963, respond-

ent’s Secretary-Treasurer at times remitted per capita

tax paynients to the International from the general

-fund of the Local in behalf of individual members

who had not made timely payment of their dues (58°

R. 96-98). As a result, some 50 to’ 75 members ap-

peared to be in good standing, on the basis of the per »

* gapita tax reports, although they ‘had actually lost

' their good standing (58 R. 63, 96). During the same

. period, some 700 members who had fallen into arrears

‘in the payment of thelr dues. were automatically sus- es

pended with loss of good standing i in accordance with —

the Constitution (58 R. 101). The Secretary’s investi-

gation disclosed that 16 of the 27 gandidates for

‘office in the June 8, 1963, election, including several

victorious .candidates (among them the eventual win-

ner of the run-off election) should have been ruled

ineligible ‘under the foregoing provisions and that

approximately 50 of the members voting in the June

8, 1963, election, and ° approximately 60 members

voting in the July 13 run-off election, should have

‘been declared ineligible (58 R. 75-76).

By a letter dated J anuary 27, 1964, the Interna-

tional. and respondent Local were advised of these

findings (58 R. 68). A conference between attorneys

— repr esenting g the Secretary and atférneys representing

TPO LEAL TI REE

ao Pe omnes ter tee

‘the International was-held on February 4, 1964, to *.

discuss’the investigative findings (58 R. 75-76). When —

ww the representatives of thetInternational declined to

4-’ take any corrective action, the Secretary, « on February

“f . 7, 1964, brought suit to declare both the general and

run-off elections invalid and. to direct a new election.

of officers under’ “his supervision: The complaint al-

_ leged that the ‘union had ‘violated the Act ‘by per-

i mitting ineligible members to vote and to run for

office at both the general and: run-off elections in 1963

(58 R. 3). ;

On the union’s motien, the district coke. struck |

those portions of the complaint directed ‘to the elec-

tion of officers other” than Business Representative

_ because. no. complaint by a union member had chal-

lenged the Seperal eleetion of J une 1963 (58 R. 15).

. Pepa

.* a - $2

% = . eS : 10 Pt

~The’ Secretary inter moved for summary judgment

ee with respect to the remaining allegations of the com-

Be . plaint. The court, finding that at least 58 of the 379

‘members who voted in the run-off election of July 13;

1963, and two of the three candidates in that run-off

election, had been ineligible under the union’s consti-

- tution, granted the Secretary’s motion and. directed

the conduct of a new election for the office of Busi-

ness. Representative under, the Secretary’s supervision

(58 R: 107). Referring to its earlier ruling dismissing -

parts of the Secretary’s complaint, the court: found it |

unnecessary. to decide whether. the Secretary was en-

- titled to challenge the run-off election on. the basis of

the ineligibility of two of the three candidates. Be-

cause of the imminence of respondent’s next regular

election, the court’ directed that the regular election

for: the office of Business Representative ‘be held ©

“under the’ supervision of the Seéretary and the sue-'_

- cessful ‘candidate installed in office for a full-consti- —

tutional term (58 R. 110). .

The Secretary appealed from the order limiting |

“relief, to the office of Business Representative. On

June 11, 1966, less than two months after’ the district

court had rendered judgment, the union held its next

regular election and, at the same time, a supervised

election for the office of .Business- Representative |

“pursuant to. the court’ s order. The court of appeals, —

without. reaching any other issues; thereupon dis-

~ . missed'the Secretary’s appeal as moot, relying’ on the

‘decision of the Court of Appeals for the Second Cir-

cuit in Wirtz v. Local Unions 410, 410A, 410B & |

il.

410C, International Union of Operating Engineers, -

supra. , ic ;

SUMMARY OF ARGUMENT ~ |

Title IV of the Labor-Management Reporting and -

Disclosure Act of 1959 establishes certain standards

for the conduct of union elections. The procedure for

"redressing violations of these requirements is as fol- ¢

lows. First, a union member must complain to the

union of an electoral violation. Should the union fail

‘to make voluntary correction, the. Secretary of Labor

may bring an action in a federal ‘district court. The

court shall declare the election challenged by the Sec-

retary void, and direct: the holding of a new election

under the Secretary’s supervision, if it finds that a

violation of Title IV occurred which may have affected

the outcome of the election.

In each of the two cases at bar, the union held its

next regularly scheduled election while the Secretary’s

appeal from an adverse decision .of the district court —

was pending, whereupon the court. of appeals dis-

missed the case as moot because, ‘in its view, the Sec-

retary was no’longer entitled to an ordér directing a

new election. under his supervision. However, the

provision requiring a supervised election upon finding

a violation that may. have affected the outcome of

the challenged election is unqualified ; the statute does

not’ say, “unless the union has already held its next

election,” although it could have been anticipated that

‘a second election would frequently overtake the Secre-

'. .tary’s suit. Moreover, to imply such a limitation on

, 271-920-673 +. ee |

2 :

the scope of the relief available to the Secretary would

defeat the basic policy of. Title IV..

Briefly, that policy is to foster union democracy

and yYepresentative union leadership. These goals

. would be thwarted if the holding of an unsupervised.

election terminated judicial power to order a super-

vised election. In the. first place, there is no assurance

that-the union in the second election will abandon the

violation that gave rise to the Secretary’s. challenge -

to the first. Where it does not—as happened in one

of the cases at bar, No. 57—the result is that the

violation will go entirely uncorrected, unless a super-

vised election is ordered, since Congress gave the-

courts no power, to enjoin violations of Title [V. In

the second place, incimbent officers enjoy inherent

advantages in obtaining re-election in an unsuper-

vised election because they control the electoral ma-

chinery. Thus, if they were unlawfully elected, a:

supervised election. (the procedures for which are

specifically designed to minimize the advantages of the

incumbents) is, necessary in order to assure that the

effects of the illegality do not persist.

To be sure, the result will sometimes be the nulli-

fication of an election ‘that was not itself unlawful. —

But it-is not uncommon for a judicial remedy to out-

law some lawful as well.as unlawful acts where neces-

sary to ensure complete and efféctive relief against

_a proven illegality. This result is far preferable to

either enjoining the halding of another eleetion pend-

ing the Secretary’s suit attacking the first—which

Serves only. to’ perpetuate the unlawfully elected in-

cumbents in office beyond _ expiration of their

term—or expediting the Secretary’s suit—a device

. that will often be ineffective, due to the frequency of

union elections, and sometimes positively harmful in -

its impact on the statutory policy and procedures of. -

; voluntary settlement of electoral violations.

In No. 58, the district court held that the Saavotiany

of Labor could not challenge a general election for all

officers because the complaining union member had

“specifically challenged: only the conduct of the run-off

election for the one -office as- to which the general

election resulted in a tie vote. We believe that the

Secretary was entitled to broaden the scope of the —

suit as he did. The Secretary’s allegations were fairly

' within the scope of the internal complaint, which,

limited as it was, placed the union on clear notice of

the violations that had occurred at the general elec-

tion. For any reasonably careful investigation of the

run-off would -have revealed that the same’ violation

had occurred at the general election and had extended

to all of the offices at stake.

Beyond this, we submit that the Secretary i is entitled

to challenge any violations that he has, uncovered in

the course of his investigation of the union member’s

complaint. The statutory language imposes no restric-

tion on the seope of the complaint (save that it must —

relate to. the election: challenged by the complaining

member, and for this purpose it seems plain that the

run-off and the general election which preceded it

- should be viewed as a single election). The statutory

goal of representative union leadership would be

undermined if the Secretary could not proceed against

violations that his investigation of the internal com-

plaint revealed merely because they were concealed

from, or overlooked by, the complainant. Nor is. the

policy underlying the internal-complaint-and-exhaus-

tion requirement—to afford. the union an opportunity

to correct any electoral violations vohintarily before

the Secretary brings suit—offended by the principle.

we urge, since the Secretary notifies the union, in

advance of suit, of any“violation he discovers in the

course of his investigation (whether or not they were

alleged in the internal complaint), thus affording full

‘ opportunity for voluntary correction. | |

iit

The district court in No. 57 held that a requirement

that union members to be eligible to stand for office

have attended 75 percent of the -union’s monthly

meetings in the two years preceding the election was .

‘unreasonable and hence unlawful under Title IV, but

refused to find that it ‘‘may have affected the outcome”’ -

of the election—the necessary predicate for relief. —

This was error. The purpose of requiring a showing

that the violation may have affected the outcome of

the election is to excuse trivial violations; but- that,

plainly, is not our situation. Here the unlawful prac-

tice resulted in disqualifying 97 percent of the union’s

membership from’ running in the union’s elections.

Nor can it be said that none of those wrongfully dis-

“qualified ‘might. have stood. for office and won—thus

affecting the outcome—especially when one of the dis-

'. qualified members was an avowed candidate for a

specific union office.

ARGUMENT

I. IN BOTH CASES, THE COURTS OF APPEALS ERRED. IN

HOLDING THAT AN ACTION BY THE SECRETARY OF LABOR

TO DECLARE AN ELECTION VOID AND TO DIRECT A NEW -

ELECTION UNDER HIS SUPERVISION WAS MOOTED BY THE |

INTERVENTION OF THE UNION’S NEXT _REGULARLY

SCHEDULED ELECTION

Section 401 of ‘the Labor -Management Reporting

i and Disclosure Act of 1959 declares unlawful certain.

abuses in union elections, such as imposing unreason-

able candidacy requirements, and Section 402 em-

powers the Secretary of Labor, upon complaint by

a union member after he has exhausted his internal

union remedies, to bring an action in federal district

court to redress such violations: The latter provision

stipulates that, if the court finds that a violation

occurred. which “may have affected the outcome of an

election,’ it “shall declare the election, if any, to be

_. void and direct the conduct of a new election under

_ Supervision of the Secretary * * *.’ In each of the

cases at bar, the Secretary brought a suit under this

provision challenging a union election and while his

suit was pending on appeal the uriion held its next

election. Both courts of appeals dismissed the appeals

as moot by reason of the new election. The principal

question presented is the correctness of this

disposition. ; ,

A case becomes moot when the relief sought be-

comes futile,impossible or academic. E£.g., California

v. San Pablo & Tulare R.R., 149 US. 308. Thus, a

suit to replevy a specific article would be moot if,

prior to — the article was returned to. the

A ad ake ahaa en ee a ee -

plaintiff, « or ‘eitiadia, These suits by the aan 3

of Labor are moot if, by reason of the. intervening

- elections, he is no longer entitled to orders directing

new elections under his supervision even if he estab-

lishes. that the previous eléctions are void.

The language of the Labor-Management Reporting _

~ and Disclosure Act lends no support to the view of

_ the courts below that the intervening elections cut off

the Secretary’s right to the relief asked. The Secre-

tary is entitled to such relief, under Section 402,

when a violation has occurred “which may have

affegged the outcome of an election,” and there is no

provision equating “an election” with “the imme-

diately’ preceding election.” No such gloss was sug-

gested in the debates preceding-enactment. Nor is that

result indicated to us when we look to the general

: purposes and overall design of the Act.

To be sure, if ‘the Act were concerned to protect

only the private right of a union member to run for

a particular. union office in a particular election, there

might be some merit to the argument that, ‘once the

term of office to which the candidate aspired has been

terminated by the election of new officers, he is no

longer entitled to complain about the old election.

But even the courts below did not adopt so narrow a

view of the purposes of the Act. They conceded

the Secretary’s interest in the electoral process be-

yond the immediate term of office in issue by endors-

ing the Second Circuit’s suggestion that the Secre-

tary, to prevent his suit from becoming moot, may

ask to enjoin the holding of a new election..and thus

to perpetuate the incumbents in office beyond their

17 : .

; prescribed term.’ As we. show presently. (infra, pp.

17-19), the Act is intended to do more ‘than protect

a candidate’s right to run in a particular election: |

the objective is to ensure a democratic electoral proc- —

ess. And that purpose, as we shall demonstrate

(infra, pp: 19-38), requires that the courts be free.to |

order a new.election, supervised by the Secretary, |

notwithstanding that the union has held another

election in the interim. :

A. THE POLICY OF TITLE IV IS TO ENSURE FAIR AND DEMOCRATIC:

UNION ELECTIONS

‘The nahi underlying Title IV is stated at the. out-

set of the Act (29 U:8.C. 401) :

The Congress finds that, in the public inter-

est, it continues to be the responsibility of

the Federal Government to protect employees’

rights to * * * choose their own representa-

tives.

Thus, although some of the bills before Congress r

‘ends have permitted the complaining union member

te sue in his own right (S. 748, 86th Cong., 1st Sess.,

105 Cong. Rec. 1276; H.R. 8342, 86th -Cong., Ist

Sess., 105 Cong. Rec. 15887), the Act as finally

passed provided that a suit by the Secretary of Labor

_ Was to be the exclusive post-election remedy. 29

_’ U.S.C. 483. So providing, “Congress decided to uti-

lize the special knowledge and discretion of the Secre-

tary of Labor in order best to serve the public

*See Wirtz v. Local Unions 410, E tc., 366 F..2d 438; Wirtz v.

Local Unions Nos. 545, Ete., 366 F. od 435. We explain infra,

p. 34, why the Second Circuit’s S suggestion does not provide,

a suitable means of implementing the Secretary’s continuing

interest in the union’s electoral process.

Ae oe

interest.” Cathoon’ v. Harvey, 379 US. 134, 140.

(emphasis added). ‘The focus is on the right of all”

the union members to be: governed by officials who

are “responsive to the desires of the men and women

whom: they represent.” S.: Rep. No. 187, 86th Cong.,

1st .Sess., p. 20; H: Rep. No. 741, 86th Cong., Ist

‘Sess., p. 16. Of course, Congress also viewed , Title |

IV asa means whereby losing or disqualified candi-

dates could receive the assistance of the federal gov- |

- ernment in vindicating their rights (see 104 Cong.

Rec. 10947 (remarks of Senator Kennedy) ; but. this

is not the sole office which Title IV performs. —

One indication of the broader interest protected is

that the Secretary’s power .to institute a. suit under *

_ this title does not depend on complaint being made by

a losing or disqualified candidate; the only prerequi-

site to suit is a complaint (after exhaustion of. inter-

nal-union remedies) by: ‘a member” of the union (29

U.S.C. 482(a))—by any member (S. Rep. No. 187,

86th Cong., Ist Sess., p. 13) who feels aggrieved by the.

electoral result. The complaint-and-exhaustion, require-

" ment is designed primarily to preserve ‘fa maximum.

amount of independence and self-government by giv- -

‘ing every international union the opportunity to cor-

rect improper local elections” (S. Rep. No. 187, 86th

Cong., Ist Sess., p. 21), with a secondary purpose

being, to confine the Secretary’s intervention. to situ-

ations in which the electoral abuse is grave enough to

move at least one member of the union to complain ;

and these objectives are completely ,consistent with

the view that the basic purpose of Title IV is to en-

sure representative union leadership—to protect the -

voter—rather than merely to advance the interests of

aspirants for union office.

We next show that this purpose would ities be

thwarted unless the Secretary’ s right ‘to relief sur-

vived a new election. — | i ~

' B. REPRESENTATIVE UNION LEADERSHIP CANNOT BE ASSURED IF THE

HOLDING OF A: NEW ELECTION . BY THE UNION PRECLUDES THE

_IMPOSITION OF ANY ‘SAN CTION FOR. A PREVIOUS UsLAWFUL

ELECTION ; “

_ Superficially, it might seem that the adverse effects

on union democracy: of an election whose outcome

might have been affected by 3 a violation of Section 401

would wash out when the union held its next election.

In many instances, however, the taint of the origina]

election infects the next and is curable only by the

Secretary’s “‘laboratory”’ election.

The facts of No. 57 illustrate this in striking fash-

ion. On remand, the Secretary proved that at the

union’s second election in October 1965—the event the

court of appeals later held mooted his) action—the

attendance requirement of the’ union’s bylaws which

had given rise to the suit was again used to disqualify

candidates, despite the decision of the. district court

on August 26, 1965, holding this limitation unlawful.

As a-result of the requirement only 13 of 500 members

_ were eligible to run for office at the 1965 election and -

only 8 candidates actually ran. Indeed, the union ’s

electoral process was so distorted that there were no

candidates at all for the three trustee offices, which

the union ’s bylaws require be filled electively, and it

became necessary for the president of the union to

appoint the three incumbent itis (as hg had done

271-926—67——_4

be. ieee nabaiat a D

a .

° 20 0. ie

after the previous election in 1963) although they

- were ineligible under the attendance requirement to -

run for the office. |

Thus ‘the taint of the challenged election persisted i

in the succeeding one; the results of the latter were no’.

more representative. than that of. the former: The sec-’

ond election made ‘the statutory remedy of a labora-_

tory election no less needful.” And that would be true

_* Before the decision of the Court of ‘Appeals for the ‘Second —

Circuit in Wirtz v. Local Unions 410, 410A, 410B & 4100,

International Union, of Operating Engineers, supra. the dis-

trict courts had generally upheld the Secretary's right to file a

supplemental complaint, without any renewal of the initiating

procedures of internal protest, complaint to the Secretary, in-

vestigation, and finding of probable’ cause, when*the alleged

violations giving rise to a pending Title IV suit were repeated |

in a subsequent election. Goldberg v. Trico Workers Union, 53

LRRM. 2875 (W.DN.Y.); Wirtz v. Local §59, United

Brotherhood of Carpenters and Joiners, 60 LR.R.M. 2522

(W.D. Ky.); Wirtz v. Research, Development and Technical

Employees Union (D. Mass., Civil Action No. 64-567-W,

1965); Wirtz v. Local Union 825, 825A, ‘825B & BRET, Inter-

national Union of Operating. Engineers (D. N.J., Civil Action —

_ No. 438-63, 1965); Wirte v:Local 84, Glass "Bottle Blow-

Ys. Association: (D. Kansas, Civil Action No. KC-2140, 1966).

The procedure followed in ‘these cases was consistent with the

decisions of this Court in the closely analogous situation pre-

_ sented in National Labor Relations Board unfair labor practice

proceedings. The Board, like the Secretary of Labor under

Title IV of our Act, may act only upon geceipt of a complaint,

_ or a charge, froni an aggrieved party. Howev er, the Board is

not precluded from ‘dealing adequately with unfair labor prac~)

tices which are related to those alleged in the charge and which

grow out of them while the proceeding is pending before the

Board.” National Licorice Co. v. Labor Board, 309 U.S. 350,

- 369; Labor Board v. Fant Milling 'Co., 360 U.S. 301, 306-307,

309. Similarly, here, the Secretary ‘and the courts shquld be

free to deal. with violations related to those alleged in the com-

plaint which take place during the pendency of the litigation,

- 21

- even if the union had not actually applied its unlaw-

ful condition of candidacy, for there would have been

no assirance, without a supervised election, that the

union members had been adequately notified of the

eliminutidm of the unreasonable attendance require- ©

ment.’ Certainly, the continuing need for a laboratory

election exists when it is not known whether the vio-

lation giving rise to the Secretary’s suit persisted into

_ the second election. — , 2] | |

Stich is the case in No. 58. “Phere is no evidence

whether the violation was repeated in ihe unsuper-

vised portion of the 1966 electidh.t But, in any event,

the remedy of a laboratory election closely supervised

and controlled by the Secretary is designed not merely

to assure the discontinuance of the particular violation *

~ found—an objective that could as’ well be aghieved .

-. sby efapowering the court to enjoin viplations (see

-tnfra, pp. 34-37). Of equal importance, the laboratory

election serves—more effectively than alternative de-

vices—to neutralize the ‘inherent advantages’ of the

- *One of the procedures which the Secretary follows at super-

vised elections is to hold a pre-election conference, open to the

. membehif, at which ground rules for the election are adopted.

* The Department of Labor advises us that its representatives

Ate supervised the election for Business Representative were

hot in a position to determine whether ineligible members either

ran for office or voted at the election for the other offices. Al-

though the supervised and unsupervised elections took place at

the same time and in the same hall, separate ballots and sep-

arate ballot boxes were used, and there were two separate lines

_ of voters. Thus, so far as the Department knows, persons ruled

ineligible to vote at the supervised election could have voted

_ at the unsupervised election, and persons ineligible to run at

_ the supervised election could have run.at ‘the unsupervised

election. , af .

“9 " .

e *.

unlawfully elected incumbents in perpetuating their

office in subsequent elections through control of the

electoral machinery, using techniques which are not .

demonstrably unlawful but which nonetheless favor

incumbents. Unless a supervised election is conducted

to break this cycle of control a single invalid election

may taint several which follow it,

The procedural standards for elections which the

1959 Act and mostf union constitutions and bylaws

-~establisH leave to those administering the elections

considerable room for maneuver. To bé sure, the Aet

contains ‘specific provisions for ensuring equality of

treatment with respect to mailing of campaign litera- —

ture; requires ‘‘adequate safeguards to insure a fair

election” including the right of any candidate to have

observers at the polls and at the-counting of ballots;

fear-of reprisal; and the right of every member ‘in

ae good standing to be a candidate, subject to “reason-

able qualifications uniformly imposed.” 29 US.C.

481 (c), (e). Nevertheless, when the incumbent. of-

ficers control the details of the election process, they

are in a position to make decisions regarding election

procedure which favor the incumbent slate yet can-

not be shown,,in a post-election suit, to have been il-

legal or, if illegal, to have been sufficiently important

to ‘the outcome to justify setting aside the election.

As one distinguished student of the subjeet has re-

marked (Summers, Judicial. Regulation of” Union

Elections, 70 Yale L.J. 1221, 1228-1229 (1961)):

‘io

* and guarantees~ “reasonable: opportunity” ‘for the.

- nomination of candidates, the right to vote without

‘The problem of maintaining equality ina

, contested election is aggravated . by the fact .

_. that control of the process is commonly in the

hands of one of the competing factions. The

lack of any established two- -party system -in - |

"most unions hinders the development of de-

vices for sharing control between the i: Sed

. groups. * ee

Normally union ‘officers control the sdeetion

process. They call and preside at the nomina-

tion meeting, rule on the qualifications of can-

didates, design. the ballot, fix the time and place se

of the élection, and rule on the qualifications .

of voters. Many of these functions may be

yested in an election committee, but * * * the

administration group often dominates this.

committee. Although those in control are gov-

- erned, by the union constitution, its sketchy

-- provisions leave substantial room to maneuver

- for critical advantages. .

These dangers were known to the framers of Title

IV, enacted as it was against the backer ound of an -

> extensive congressional . inquiry which revealed how

some union officials had been able to perpetuate their

control of union office. See Interim Report of the

Select Committee on Improper Activities in the Labor

‘or Management Field, 8. Rep. No. 1417; 85th Cong., —

2d Sess. Congress was aware that incumbent union

- officers enjoy considerable advantages in seeking re-

election and that undemocratic procedures followed in

‘one election can have ‘a continuing impact on the

~ outcome of subsequent elections. Provision was made

for a supervised election to break the cycle. The See-

‘retary was authorized to establish procedures for the — :

supervised election which are e designed not only. to en-

sure that the election is conducted in a lawful manner: .

‘under the union’s constitution and bylaws ° but also to ,

deny the incumbent officers any opportunity to favor

the administration slate in making decisions—and he

has done so.” a phe oes 5 ay}

In sum, in regular, unsupervised elections the union.

itself determines the details.of election procedures,

because Congress wished only to prescribe minimum

standards of fair procedure for union elections, be-

lieving that unions generally could be ‘trusted with

responsibility ‘to work out the details of. their own

internal | procedures. in a fair manner. S. Rep. No.

187, 86th Cong., 1st Sess., p. 7. But once the Secre-

tary has shown that a union has committed’ a viola-

- tion of the Act which may have affected the outcome

of an electién, that trust is forfetted and it becomes

' 8 The supervised election must be held, “so-far as lawful and

practicable, in’ conformity with the constitution and bylaws

of the labor organization.” 29 U.S.C. 482(c). However, subject.

to that limitation, the Secretary is authorized to prescribe

rules and regulations for the conduct of supervised -elections.

29 U.S.C. 482(b). : ;

. his is done principally by ensuring that incumbent officers

do not control ‘the election committee or otherwise decide the

details of the election procedure. Thus, at a supervised election,

the principal details are determined by the Department of

Labor’s supervisor in consultation with all interested parties at a.

pre-election conference. Matters remaining unsettled after the

pre-election conference may be left to a union election com-

mittee, but incumbent officers seeking re-election, as well as

. other candidates for office, are not permitted to serve on the

‘election committee. Where the uhion’s constitution requires

incumbent officers to perform functions in connection with the

election, the incumbent seeking re-election must perform these

functions under supervision and, upon request, under the ob--

servation of representatives of rival candidates. .

necessary for the Secretary to. control the details of

the election procedure through supervision of a court-

’ ordered election.: The violation destroys the presump-

tion of regularity that would otherwise attach to the

union’s condtict of its-own election; the intervention

of an unsupervised election is not sufficient to restore

it. Even if it cannot be shown in a post-election in-

vestigation that the intervening election was con-

ducted in violation of the Act, there can be no as-

‘surance that: the. unlawfully elected incumbents

- forewent the opportunities for manipulation that an

ponuperaes election permits. A laboratory election —

eimains necessary | to assure that the control achieved

0 violating the Act in the first election is not per-

petuated by subtle means in the second."

*The continuing - public interest in the Title IV remedy,

once suit has been validly initiated, was forcefully expressed

by the court in Goldberg v. Amalgamated Eocal Union No.

.355, 202 F. Supp. 844 (E.D.N.Y.), where the Secretary had

filed suit to compel the holding of a local union election after

the lapse of more than three ‘years since the last election. —

After the suit was filed, the union held an unsupervised elec-

tion. The court refused to dismiss the complaint, saying:

The filing of the complaint under the procedure out-

lined bx Congress sets in operation the governmental ma-

chinery. To that point, the LMRDA gives the labor or- -

ganization the opportunity to correct and remedy. the

vidlations., Beyond that point, the right of the government

to investigate the breakdown of. the democratic processes

is clear. It is not within the power of ‘the labor union to

deprive the. government of ‘its -right by compliance. The

interest of the public goes beyond adherence to the form. .

The interest of the public has been called into play by -

the failure of the union to act. The substantial right of

the Secretary cannot be capriciously brushed aside. _—

F. Supp. at oo

. 26

So saying, we suggest no novel principles. It is

familiar law that the discontinuance of the particu-

lar practice challenged does not defeat the govern- .

ment’s right.to relief against a violation of law, un-

less it is elear that. a decree is unnecessary to protect

the public against the consequences of the violation.®: ‘

This is such a _— Full protection of the public

‘interest is not..asshred by the mere fact.that a sub-

~ sequent election is conducted, even if the challenged -

practice appears to have been abandoned. .

Also relevant is-the principle that when important

rights have been violated-the remedy may go beyond

restraining the plainly unlawful conduct and prohibit

associated acts which would be permissible at the ©

hands of: others, or even the defendant, had they not .

been used. to perpetrate the wrong: E.g., United States ©

v. Bausch & Lomb Co., 321 U.S; 707, 724; May De-

partment Stores Co. V. Labor Board, 326. U.S. 376,

391; Swift & Co. v. United States, 276 U.S. 311. The

effect of the relief asked by the Secretary in these

® See, e.g., Labor Board v. Jones & Laughlin Steel Corp., 331 |

U.S. 416; Local 74, Etc. v. Labor Board, 341 U.S. 707; Porter ——

_.v. Lee,-828 U.S. 246; Walling:v. Helmerich & Payne, 323.U.S..

°87; Walling v. Reuter Co., 321 U.S. 671; Federal Trade Com-

mission v. Goodyear Co., 304 U.S. 257; Labor Board v. Penn-.

' sylvania Greyhound Lines, 303 U.S. 261; Southern Pac. Termi-

nal Co. v: Interstate Commerce Commission, 219. U.S. 498;

United States v. Trans-Missouri Freight Assn., 166 U.S. 290;

Mitchell v. Southwest Engineering Co., 271 F. 2d 427 (C.A. 8);

Marlene’s Inc. v. Federal Trade Commission, 216 F. 2d 556

(C.A. 7); Walling v. Mutual Wholesale Food & Supply Co.,

141 F. 2d 331 (C.A. 8); Sears, Roebuck & Co. v. Federal Trade

Commission, 258 Fed. 307 (C.A. 7); Goldberg. v. Amalgamated

Local Union No. 355, 202 F. Supp. 844°(E.D.N.Y.); United

States v. Bates Valve Bag Corp,, 39 F. 2d 162 (D. Del.).

"27

; cases may-be to undo elections not themselves shown

to be illegal, but that is necessary to assure the com-

plete extirpation of proven wrongful conduct. Under

the Voting Rights Act of .1965,.a State may not en-

force a literacy test, even a lawful one, if such a test

dis used at any time during the previous-five years to

abridge the right to vote on account of race or color.

“Congress knew that continuance of the tests and de-

vices in use at the present time, no matter how fairly

administered in the future, would freeze the effect of

past_¢ discrimination in favor of unqualified white

~ registrants.” South Carolina v. Katzenbach, 383 U.S.

301, 334. And both the registration and the “voting

process in areas where persistent violations have

_oceurred are subject to detailed federal supervision.

See 42: U.SiC. 1973 et sey. Here, too, something more—

than the abandonment. ofan. auntawful practice is re- |

quired to ¢ overcome the effects of Past illegality and

restore democr acy:

It remains ee to corsider whether: within the.

framework of ‘Title IV, there is any adequate alterna-

tive remedy for assuring that the taint of an unlawful »

election is thoroughly dissipated, other than directing

a laboratory election notwithstanding an intervening

reat ati election.

Cc. THERE Is NO OTHER EFFECTIVE FEMEDY UNDER TITLE IV TO Roone

THE ELIMINATION OF THE ‘ADVERSE EFFECTS OF AN UNLAWFUL

CL ecaruael : 7

' We canvass here the possible alternative methods of

einai a representative union leadership in a

situation’ where the union holds another election -fol-_

lowing the’ unlawful Gne-—sitarnntives to the Secre- : -

271-926—67-—_5

=“

tne,

° ; 28 :

tary’s preferred remedy of an ordef in -the suit

. challenging the first election directing that a new elec-

tion be conducted under his supervision, without

regard to the fact that the union. has —_ held its

next election. :

. i. Expedited procesiings a |

It is readily apparent that, in the ordinary course,

a suit by the Secretary to declare an election void and

2 obtain an. order directing a laboratory election will

more often than not be overtaken by the union’s next

election before it is prosecuted to its conclusion—as

happened in’ the cases at bar. The Act itself requires

unions to hold elections at least once every three years

(29 U.S.C..481(b)) ; many unions (including the local

‘- involved in. No. 57) hold elections biennially ; and

somé even conduct annual elections.’ The Secretary .

- cannot, under normal circumstances, institute an

action in the district court until at least S1x months:

_ after an election,” and in most cases a trial is neces-

sary since the issues—what procedures were followed,

whether a particular practice ‘was unreasonable itt the

° At least 3.5 million local union members elect their officers

at intervals of two, years or less, United States Department of

Labor, Union Constitutions andthe Election. oF. Local a

Offieers (1965), Table 5, p. 22. ' .

10 First, a: member must complain to the union. The union

‘then has three months to render a final decision, and the union. -::

member one month after that to file a complaint with the Sec-. .

retary. 29 U.S.C. 482(a). Sometimes the member awaits the

union’s final de¢jsion, which may take considerably more than .

_ the statutory minimum of three months, before filing a com-

_ plaint. The Secretary then has sixty days to conduct the admin- .

istrative investigation that is required before the suit may be

brought. 29 U.S.C. 482(b). -

éiscamatancen’ and whether violation, if established:

may have ‘affected the outcome of the election—usually

involve disputed questions of f. ct. Thus; many times

even the district court’s “judgment may bé delayed

until the next regular election. The danger is likely to

be aggravated if unions know that to moot these suits

they need only delay the cine i until their next

election.

If appeals are taken, it becomes virtually impossible —

to terminate ‘the* litigation (including action on an

application for réview by this Court) before the next

biennial or triennial union election. To be sure, this

oh holds true only if the district court refuses to order a |

. supervised election and the Secretary. appeals; Sec-

tion 402(d) of the. Act bars a stay pending appeal of a |

district court order directing a supervised election. °

However, as these cases illustrate, it is not uncommon ©

for district courts to refuse the Secretary the relief he

asks, and it seem hardly reasonable to ‘suppose that.

Congress intended no judicial review of lower court |

rulings sharply peice the scope sdull efficacy of

Title IV.” ew

The vital importanée to the effective and orderly ad- |

ministration of Title IV of permitting: the Secretary

to obtain appellate review is well illustrated by the

two cases at bar. No. ot involves the-nature of the_

1 As a matter of fact, it is clear that Congress contemplated

. judicial review: of Action orders—which the mootness holdings.

of the court below hobbles. Compare Section 402(d) of the final ;

Act, which expressly makes election ‘orders “appealable, with .

earlier bills providing that orders directing an election not be

appealable (S. 3974, 85th Cong., 2d Sess, 104 Cong. Ree. 18263,

and S. 3751, 85th Cong. ods Sess.).

> 30 ; 2

burden of proof resting on the Secretary to show that

a violation of the Act may have affected the out-_

come ofan election.” ™ Since: the Secretar y will not

institute court proceedings unless he believes that the’

burden can be satisfied,” the resolution. of the question

_presented. avill shape the course of future investiga-—

tions, and will in some instances control the decision

- whether. suit should be filed. So, also, the question in

No. 58, concerning the proper scope of the Secretary’s

complaint, has obvious’ practical importance for the

whole Title IV enforcement program: Before thé

order dismissing portions of the complaint ‘in this

ease, the Secretar v had successfully maintaineh j in the

district courts his view that.a valid complaint from

a union member opens: to investigation, and judicial

challenge the whole electoral process. Sice that de-—

The samé ruling has been reac ‘hed more recently, on only

slightly different facts, in Wirtz v. Loe 66, Glass Bottle Blow-

ers Assoc ‘vation, 268 FeSupp. 33 (W.D. Pa. June i 1967, which

involves the same meeting attendance réquirement. Since Local

66 is Scheduled to hold its next regular election in September

1967, it is highly unlikely that an ‘appeal can be completed in

time iinder the Third Circuit’s mootness holding.

13 The Inteypretative Bulletin issued under the “Act states (at

29 §.F.R: § 452 2TEtHy}: “Violations of the election provisions

of the, Act which occurred in the conduct of elections held

within the préscribed time are not grounds for setting aside -

an election unless they ‘may have affected the outcome.’ The

Secretary, therefore, will not institute court proceedings. upon —

the’ basis of a complaint -alleging such violations~tnless he

. finds probable cause to believe that they ‘may have affected the _

outcome of an election.’ ”’

% Decisions favorable to the Secretary. on this question had

been rendered without opinion in Wirtz v. Local 11, Hod Car- .

riers (ruling specifically referred to in 211 F. Supp. 408, at -

412 (W.D. Pa.)); Wirte v. Local 611, International Hod Pia

riers’ Union, Civil No. 9512, D. €onn., motion for summary -

™

. 2 | . ee

cision, numerous Title IV defendants have raised the es

defense that the complaint went beyond the scope of

the ‘complaining member’s internal protest. If the

Secretary’ s view.of his duty and. authority under Title

IV is. correct, then he should. not Re required to

litigate this question repeatedly. O her hand,

if the décision of the district.gd his case’ was. -

correct, then the Secretary. should be wasting his

, ‘resources by full investigation. of election complaints:

ie followed by~<omprehensive_ litigation based on his

'- investigative findings. > ~

While efforts at expedition shight alleviate the

problem to some extent, it is obvigus that even expe- -

dited proceedings frequently cannot terminate a: liti- —

"gation involving both trial and appeals, as No. 58.

illustrates. Had the Secretary sought leave to pursue

an interlocutory appeal from the order dismissing

portions of the complaint, i is doubtful whether even

_ a district court decision could havg been rendered on

the merits before the union’s next election. Moreover,

_ the courts can expedite oly the judicial, and not the

anterior administrative, proceeding. That limitation |

aside, undue haste in the processing of election con-

| plaints at the administrative tevel could actually un-

| judgment denied July 15, 1963 ; and Goldberg v. District Coun-

cil 21, Brotherhood of Paisitere, Civil No. 30371, E.D. Fa,

motion to dismiss denied March 31, 1962. :

8 See Local Unions Nos: 545, 545-A, 545-B, & 545-C, Inter-

national Union of Operating Engineers v. Wirtz, C.A. 2-Neow

499, decided July 28, 1967; Wirtz v. ‘Hotel, Motel and Club:

Employées Union, Looat 6, C.A. 2, No: 513, decided July 28,

1967; Wirtz v. Local 9, ete., Operating Baginsore, 366 F.2d

911. (C.A. 10), certiorari granted and decision vacated, May 15,

- 1967 (see p. 39, n. 22, was which followed the narrow view

_ of the instant case.

o |

srmine the policies of Title IV. The Secretary may

st bring suit unless and until the union has failed

jluntarily to comply with the law. This requirement,

; this Court pointed out in Calhoon v. Harvey; 379

8. 134, 140, “is in harmony with the general con-

ressional policy :to ‘allow unions, great latitude’ in

solving their own. internal controversies, and,. where

at. fails, to, utilize ‘the agencies of Government most

umiliar with union problems to aid in bringing about

settlement. through. discussion before resort to the

nurts.”’ *".Sinee, settlement - cfforts . frequently take

me, the Secretary often obtains waivers in order to

ermit the negotiations to extend past the sixty-day

eriod allowed by the Act for bringing suit.” Fear of

1ootness, however, may, induce the Secretary. to file

ait. as quickly as possible, regardless of the effect. on

ettlement efforts,* while at the same time it may en-

. % . ‘

16 Tn fiscal years 1963, 1964 and. 1965, an average of 124 com-

laints per year’ were received by*the Sécretary, and an average

f 17 complaints ‘were filed in court.. See Bureau. of Labor-

fariagement. Reports, Summary: of ‘Operations, 1963, pp. 8, 113.

JS. Department of Labor, ‘Summary of Operations, 1964,\

Labor-Management Reporting and Disclosure Act, p. 6; U.S. - ‘

epartment. of Labor, 1965 Summary of Operations, Labor- .

fanagement Reporting and. Disclosure Act, py 7. . at

17 Jn some cases, the holding of a supervised election is pro--

‘ided for by the eS Po time must be taken in

yreparing for the supervi election, during which interval the

Secretary preserves his right to file a complaint by obtajning.

vaivers of the limitations defense. ig OR 2

18 To -be sure, settlement negotiations may continue after the:

iling of a suit. However, the commencement ‘of litigation gen-..

rally stiffens the,position of the parties and makes settlement |

nore difficult. For example, before suit is filed, the union may

6 amenable to,settlement because it wishes to avoid the adverse -

yublicity of a lawsuit, but this factor, ¢& course, disappears

mee the suit is filed. | . iy, ae

fe ‘ " e

. - -

he cai hie DUEL AT TT

| courage the union to oianet in protracted negotiations

so as to. frustrate judicial enforcement should agree-

ment not be reached. Either way a climate of volun-

tary compliance is impaired.

2. A new apt challenging the second election

This alternative may be quickly dismissed. Such a

suit would be just as likely as the first suit to be over-

_ taken——and hence,~-under the rule of the courts below,

mooted—by - the union’s next election. And it. would

be no remedy at all in cases (like No. 58) where the

vice of the second election lies, not in the fact that

- the union continues to impose the restriction chal-

lenged in the first suit, but in the danger that the

' officers.elected unlawfully in the first election may

have been able to perpetuate their office in the second

through them contrel of the electoral machinery, with- 2

. out, however; committing any demonstrable violation.

of law. ;

Nor is the futile remedy of a second suit mandated

by the complaint-and-exhaustion requirement of the

Act. Where, as in No. 57, the union has already re-

-fused to change its candidacy qualifications, there

would. be little point in requiring a union member ‘

ca again to file’ an internal complaint and exhaust inter-.

nal remedies. Moreov er,a member of Local 153 who

could not ‘nieet the diene requirement in 1965

‘would not be likely to renew his attempt to run for -

office. and then pursue an internal complaint if dis-

qualified, knowing that the previous attack on thé at-

tendance requirement at the 1963 election had failed. -

If, as in No. 58, the. second election is not _iitibared

}

marred bya violation of Title IV, the member would |

have. no basis in the Act for filing any-new complaint. |

3. An injunction against. the holding’ of another election pend-

ing completion of the Secretary's suit ©

The Second Circuit has suggested that the Secre-

tary might. obtain, pendente lite, a stay of an election

that would moot his Title IV ‘action (see ‘pp. 16-17

and n. 1, supra). This remedy, which has no founda-

* tion in the Act, seems completely anomalous. It places -

the Secretary in the untenable position of asking the

court to maintain in office, beyond the expiration of

their terms, the very union officials whose election he

is challenging as unlawful. It,unwarrantedly inter-

feres with tlie union’s rules prescribing the intervals

at which elections should be held in disregard of the

congressional policy of minimum interference in union .

electogal affairs (supra, p. 18). In some cases it may —

even conflict with the Act’s explicit directive that

unien elections be held-no less often than every three

years. And it is inconsistent with at least the spirit of

Section 402(d). That provision precludes a stay pend-

ing appeal of an order directing a supervised election,

thus -indicating, we. think, that Congress did not in-

tend that. elections should ‘be-delayed owing to the

pendency of Title IV litigation. |

‘4. An injunction against the practice found to violate the Act.

Arguably, the Secretary. should he. free to challenge

‘not only the election itself, but the unlawful electoral

practice, and to obtain an injunction against the’

continuation of the practice in any future election.

However, in many cases this remedy would be wholly .

\ 35

inadequate. It would do nothing to prevent unlawfully .

elected ‘officers from perpetuating their office by con-

trol of the electoral machinery—only a laboratory

_ election is calculated to eliminate this harmful effect

of an unlawful election. Beyond this, it is very doubt- _

ful that the Act empowers the courts to afford such |

injunctive relief, at least in the kind of case involved

here. Wirtz v. Hotel, Motel and Club Employees

Union, Local 6, C.A. 2, No. 513, decided July 28, 1967.

Title IV does not expressly provide for injunctive |

relief. The only remedy specifically provided in the

statute is an order setting aside the challenged elec-

tion and directing. a supervised election. While the —

absence of express provision for injunctive relief is

~ not, of course, ‘conclusive (cf. United States v. Re-

_ public Steel Corp., 362. U.S. 482), there «is evidence is

that the omission here was deliberate.

For one thing, the enforcement ‘provisions of other

‘titles of the Act provide ‘specifically for injunctive

relief. Sections 102, 210, 304, 29 U.S.C. 412, 440, 464.

~ Particularly relevant here is the enforcement section

of Title III (Trusteeships), which permits the Secre-

tary to obtain “‘such relief (including injunctions) ,.

‘ as‘may be appropriate.” 29 U.S.C. 464. Title III is |

otherwise quite similar to Title IV in its enforcement

provisions. It provides (29 U.S.C. 464) for complaint.

by a union member, investigation of the complaint by

the Secretary, a finding of probable cause oy the

-Seeretary to believe there has been a violation, and

then a civil action by him. It seems unlikely that -

the omission from Title IV of the provision. for

injunctive, relief found in Title III was completely

inadvertent. |

“ 36

Moreover, several _of the bills rejected by the Con-

gress would have expressly authorized injunctions —

_ against future violations of the election provisions.

The principal House pills—including the version that

passed the House—provided for a civil action “to pre-

vent and restrain such violation [of section 401].”’

ELR. 8342, 86th Cong., 1st Sess., Section .402(a), 105

Cong. Ree. 15707-15708, 15887; H.R. 8400, 86th Cong.,

Ist Sess. Both the administration’s Senate bill’ and

Senator McClellan’s bill also provide for injunctions.

3. 748, 86th Cong.,. Ist Sess., Section 302(d), 105

Cong. Ree. 1277; 8. 1187, 86th Cong., 1st Sess., See-. ‘a

tion 403(a), 105 Cong. Rec. 2666. Nevertheless, .the

final Act did not provide injunctive relief for viola-

tions of Title IV. - , is

Perhaps, in some extraordinary cases, a remedy

‘ not expressly provided in Title IV should be implied

for example, when a union held a new election under -

the Secretary’s supervision but refused to install the -

officers elected, suit was filed to compel their installa-

_ tion.”? When ballots were altered before a recount to

change the ‘result of an election, the Secretary filed |

suit for the installation of the candidate who had re- °

— ceived the most votes.” In these cases, since the elec-

19 Wirtz y. Local 85, Laborers’ International Union, D. Ore.,

Civil Action No. 66-221. After a pre-trial hearing, the union

agreed to install the officers elected in the supervised election.

‘. S. Div., Civil Action No. 27901. The case was eventually

settled by installation of the properly elected candidate. The

problem in that case was similar to one that occurred in the

election of the national president of the International Union

tion itself was not tainted by illegality, to have di-_

rected a re-run would needlessly have interfered with

‘ the union’s electoral process, contrary to the congres-

gional scheme. -Therefore, it was urged that a proper

order would be one limited-to the invalid portion of

the election, 7.e., the installation of officers.” And’ in

Wirte v. Local 1752, ILA, 56 L.R.R.M. 2303, 2306

(S. D. Miss.), the court enjoined the union from post-

election discrimination against the member who had.

filed a Section 402 complaint, noting that ‘the Secre-_

tary of Labor’s enforcement responsibilities would be

thwarted and thé public interest harmed’ if a com-

plainant could not be protected from such reprisal.

Clearly, however, the usual statutory remedy for

an illegal election—and, as mentioned, in many cases —

the only effective one—is a laboratory election; and .

in the present cases, such telief is appropriate and

should be deemed available. ~*. a

of Electrical, Radio ‘and Machine Workers in 1964. An investi-

gation by the Secretary of Labor disclosed that the ballots

had been miscounted. The candidate who had erroneously been

declared elected resigned, and his opponent was installed in

office. See U.S. Department of Labor, 1965 Summary of Oper-

ations, Labor-Management. Reporting and Disclosure Act. pp.

a, 88 Monthly Labor Review 562-565 .(1965).

*t But in Wirtz v. Teamsters Industrial and Allied E mployees

Union, Local No, 73, 257 F. Supp. 784 (N.D. Ohio) the court

denied a motion to dismiss a complaint alleging, inter. alia. that -

certain newly-elected officers had been improperly coerced into :

resigning immediately following their installation. There, an

adaptation of the statutory remedy would have been unavail-

able, since the alleged violation occurred after the election was

over. - case was settled.)

In sum, within the framework of Title Ty, effec-

_ tive relief against unlawful elections will in many

eases be impossible unless the Secretary’s right to an

order directing a supervised election is recognized,

whether or not the union has held another election

since the one challenged in the Secretary’s suit. In

the circumstances, the Court would be fully justified

- in fashioning a remedy appropriate to carry out the

statutory purpose. Compare United States v. Repub-

lic Steel Corp., 362° U.S. 482; Teaas & N.O.R. Co. v,

Ry. Clerks, 281 U. S. 548. But no creative effort is

required here. Nothing in Title IV makes an inter-

vening union election a bar to an order directing a.

laboratory election if the previous élection was voida-

ble. We plead. only for a liberal application of the

statute, faithful to its true purpose. °

Il, IN NO. 58, THE DISTRICT COURT ERRED IN HOLDING

THAT THE SECRETARY: IN’ HIS. SUIT. MAY NOT CHAL-

LENGE THE GENERAL ELECTION IN WHICH THE VIOLA-

TION COMPLAINED OF OCCURRED, OR CHALLENGE’ THE

ELECTION QF OTHER OFFICERS, BECAUSE THE UNION

MEMBER SPECIFICALLY CHALLENGED THE VIOLATION

ONLY -AS IT AFFECTED THE RU N-OFF ELECTION HELD

WITH RESPECT TO A SINGLE OFFICE FOR WHICH THE -

COMPLAINANT | WAS A CANDIDATE .

In dismissing the appeals in these two cases as

moot, neither court of appeals -considered whether

the district. court had been correct in its ruling on

the merits of the Secretary’ s complaint. If this Court

‘agrees. with us that the appeals are not moot, it could

of course remand the cases to the courts below to

consider the merits of the appeals. On the other hand,

: ies 7° , . _* F =f. : ‘ ¥ > mae

it would not be inappropriate to now resolve-the im- )

portant questions involved (which we discuss in this __

and the following part of our argument). The- issue

in‘No. 58 especially—whether the Secretary’s suit

may raise issues not: specifically presented in the in- .

ternal complaint—is closely related, as will appear,

_to the mootness question; and it has been fully con-

sidered by two courts of appeals already.” Moreover,

both questions are extremely important to the admin-

istration of Title IV and should be decided promptly _

in order to provide guidance in the mounting litiga-

tion under the Act... .. pe i :

We begin with No. 58. The issue presented by the

Secretary on his-appeal was whether the district court

. erred in striking those portions of the Secretary’s. :

. complaint directed to the conduct of the general elec-

tion on June 8, 1961, and concomitantly, in limiting -

_ the supervised election to a single office, that of Busi-

ness Representative.” - ) | erie, ee

The complaint to the union specifically questioned

only the run-off election held on July 13, 1963, for the

** See cases cited supra, p. 31, n. 15. Our petition for a writ 6f |

_ certiorari to review the decision in Wirtz v. Local Unions Nos. ‘

9, 9-A and 9-B, International Union of Operating Engineers,

366 F. 2d 911 (C.A. 10), presented this question, but shortly

thereafter, the respondent agreed to allow the Secretary to su-

pervise the election of all officers, rather than only thaf involv-

ing the office. with respect. to which an administrative com-

plaint had been filed. Accordingly, at the joint suggestion .of

the parties, the Court, on May 15, 1967, vacated the judgment

below and ordered the suit dismissed as moot. 7

* The run-off election challenged in the inion member’s com-

_ plaint involved only that office since it was the only one as to -

‘which the general election had resulted in a tie, requiring a

‘run-off. —- | Peg 4s ee,

40°

office of Business Representative. The complaint

charged that that election had violated ‘Title IV in

that some members ineligible to vote because of non- -

_ payment of dues had been allowed to vote while others

ineligible on that ground had been prevented from

voting. The court directed a supervised election limited

to a re-run of the run-off election for this post. _

Despite the Secretary’s allegation ‘that the same viola-

tion had occurred at the preceding general election,

held on June 8, 1963, and had tainted the races for all .

offices, the couft did not permit the Secretary fo ehal- -

_ lenge the validity of the general election. In our view

‘ this was error:

A. THE ADDITIONAL ISSUES RAISED IN| THE SECRETARY'S COMPLAINT

WERE FAIRLY WITHIN THE SCOPE OF THE UNION MEMBER'S COM-

PLAINT TO THE UNION .

Title IV, as already noted, provides that before

filing suit the Secretary of Labor must receive a com-

* plaint from a union member who either exhausted his

internal remedies within the union or invoked such

remedies without obtaining a final decision within

three months. 29 U.S.C. 482 (a), (b). Although the

language of the statute is not entirely unambiguous, it

appears that the Secretary’s suit may only question:

the election that was the subject of the union mémnber’s

internal complaint." Since both the general election

24 Section 402(a), 29 U.S.C. 482(a), provides that the “chal-

lenged election [referring to the election challenged by the

‘union member in his complaint to the Secretary] shall be pre-

sumed valid pending a final decision thereon (as hereinafter

provided) * * *.” The statute goes on to-authorize a suit by

the Secretary “to set aside the invalid election * * *.” 29 U.S.C.

482(b). The court is directed, if it finds that a violation may

1 a

held. on nJ une 8, 1963,-and nae ee held on Ji uly 18,

1963, were part of a single process designed to select |

the officers of the union for the following three years,

we view both together as constituting a single ““elec-. :

” tion” for purposes of the statute.”

- the scheme of thé Act. Title IV provides the exclusive

remedy “for challenging an election already con-

ducted”’ (Section 403) and-it permits -a protest and

court challenge only after the election has been com-

pleted. See Wirtz v. Local 30, International Union

of Operating Enginéers, 242 FY ‘Supp: 631, 633

(S.D.N.Y.) {citing this Court’s decision in Calhoon

‘v. Harvey, 379.U.S8. 134); Wirtz v. Great Lakes Dis-

trict Local 47, Masters, Mates & Pilots, 61 L.R.R.M. .

| 2010 (N.D. . Ohio). An election that requires a run-

off has not been completed. Moreover, Section 402(c)

_-provides for judicial relief only if it is shown that

_a violation of the Act “may have.affected the outcome

‘of ani election.” Obviously, the outcome of dn election — |

’ which necessitates a run-off cannot be ‘known until *

the completion of the run-off. Yet. if the run-off in

a case like No. 58 were viewed asa separate election, -

the complainant would have to lodge his internal

union protest prematurely—hefore the run-off was

held—since more than the 30-day: period provided

in respondent’s constitution. for the’ filing of election

have affected the outcome of “an eléetion,” to declare “the

election” void and direct*the conduct of a new election under ~

-. the supervision of the Secretary. 29 U.S.C. 482(c).

2° Webster’s Third International Dictionary defines: “election” — —____-

as “the act or process of choosing a Te for office, position,

or membership ” voting.” . : Sg ag See

> ze

: ; protests elapsed between the general election and the

run-off.” -.- | yee

Defiiing “election” in this manner is fully con-

- gistent with the internal exhaustion requirement of »

Title IV, which was designed to preserve “a maximum

-.amount of independence and self-government by giv-

‘ing every international union the opportunity fo

correct. improper local elections.” S. Rep. No. 187,

"86th: Cong., Ist Sess., p. 21; see supra, p. 18. When

the international union received a complaint tft

the local had been following a practice which resulted

in ‘improperly qualifying certain members to vote,

the international should have -realized fhat the same

practice had probably been followed in the general

election which precéded, and necessitated, the run-

off. And any serious investigation of the complaint

would have shown that the Secretary Treasurer’s

- practice of subsidizing the eligibility of some union

. members was enforced, not only at the run-off election, |

but also at the general election, held only six weeks _

‘previously. Thus, the policy of the éxhaustion require-

ment—giying the union a ‘chance to clean its own —

house—is served’ by permitting the Secretary to sue

in: respect - of the general election on the basis of a

‘ complaint about the conduct of the run-off.

—_—_—_—s— . ’ 3 .

26 We do not mean to ‘imply that a run-off cannot be sepa-

- pately considered for any purpose under Title IV. If purely

procedural irregularities are involved (¢.g.. denial of a secret

ballot, or failuré to give the 15-day statutory notice), then

the run-off may be the only defective part of the election,

and the only part which requires: corrective action. However,

- in’the present ‘case, the, violations infecting the run-off “were

merely the continuation of the violations - permeating’ the

“ag general ‘election, and attributable to the same cause.

eae

483

Qnce.it is acknowledged that the run-off election

was an integral and inseparable part of the general

election which necessitated it, then the question arisés

whether the <Act’s internal-exhaustion requirement.

_ provides any justifichtion for restricting the Secre-

tary’s suit to the. particular office concerning which

complaint was made. We submit that the. purpose of

the exhaustion requirement is not undermined: by

permitting the Secretary to question the election for

other offices besides the one specified in thé internal .

complaint, particularly where, as here, the same viola-

tions were alleged with respect to those other offices.

The international cannot complain, in these circum-

stances, that it was deprived of an opportunity for |’

voluntary correction by being confronted with the

violation for the first time in the Secretary’s suit.

The illegality was fully distfosed by the internal com- .

plaint, albeit it focused only ona single union: office.

There might be merit in the argument that the Sec-

retary’s. suit is limited’ to the office as to which ‘an

internal complaint was made—despite the. fact that

the violation specified in the complaint affected other

offices—if the Secretary’s sole function in Title IV

litigation were to vindicate the rights of a disap-

pointed candidate. On ‘this theory, since the com-

plaining member in No. 58 asserted only his interest

in running for the office of Business Representative,

the Secretary’s suit on his behalf should be similarly.

limited. However, as already explained (supra, pp.

17-19), the Secretary has.a broader role in Title IV.

litigation: to represent the interest of all the: mem-

bers of the union in having officers responsive to their

Pes ee * pas

needs and to assert the public interest in democratic

labor unions. As this Court noted, in Calhoon v. Har-

vey, 379 U.S. 134, 140, § “Congress decided to utilize

the special knowledge and diseretion of the Secretary

of Labor in order“best to’ serve the public interest.’’

The ‘“‘special knowledge” of the Secretary would be

poorly utilized if he could function under Title IV

only a as the champion of a particular complathiant,

B, EVEN UNRELATED VIOLATIONS, DISCOVERED IN THE COURSE OF -

THE SECRETARY'S. INVESTIG: ATION OF .A UNION: MEMBER’ S COM-.

PLAINT, MAY BE RAISED IN THE SECREJARY’S ACTION

' While we have suggested that the question of judi- :

is cial power to remedy the additional violations chal-

lenged by the. Secretary i in his suit in No. 58 may be

decided on the ground that they were within the scope

of the interna? complaint, an alternative ground ‘of

decision suggests itself—one that we believe superior

from the standpoint: of statutory policy, and sound

administration.” We deem it neither appropriate nor

necessary to the scheme of Title IV_that the Secre-

tary be precluded from invoking ‘the aid of the courts”

to correct any-violation that he discovers in the coursé

- of investigating a union member’s complaint. More-

over, we think the trial of election cases should not be .

burdened with | difficult collateral | questions as to

whether a ‘particular violation may properly be con-

sidered comprehended within the allegations of the

internal-complaint. Here, an affirmative answer to the '

‘question is ‘readily forthcoming, but in other cases

it will: be more difficult and we-do not-believe that:

; cs “. ‘ .

. . ‘ 5 Rind Pz 2

* . . ” ° % . e

% at i . :

45 .--

. the terms or policies of Title IV requires the court to.

indulge that. debate.

The language ‘of the statute itself imposes no re-

strictions on the scope of the Secretary’ s suit. Indeed,

it does not even: explicitly require that the suit chal--

‘lenge the particular violation specified in the union -

member’s' internal complaint; the ‘Secretary is em-

powered to bring suit if, after investigating the coui-

plaint,. “the finds probable cause to. believe that @ vi0-—

lation of this subchapter has occurred.” 29 U.S.C.’

482(b) (emphasis added). This, general language was

not inadvertent.. One of thé bills considered by Con- ~

gress provided that when a member.complained to the

Secretary of a violation of the Act, the Secretary

~ was to investigate “such allegation,” and bring an

action only if he found ‘‘probable. cause to believe that

-. such allegation is true’ (S. 1002, 86th -Cong., 1st

Sess., 105 Cong. Rec. 2067). The Conference Com- _

mittee adopted the broader view, reflected in the Sen-

-ate Report, that the Secretary was “to investigate _

the complaint and determine whether there is prob-

able cause to believe that an election was not: held

in conformity with the requirements of the bill. # (S.

Rep. No. 187, 86th Cong., Ist Sess., pp. 21.)

_ Congress provilled » sixty-day period for the in-

vestigation of election complaints and gave the Sec-

retary sweeping investigative powers.’ These powers

are far more extensive than those which would have

been available to an individual union member under |

the private enforcement scheme of the House bills °

(see Wirtz. v. Local 191, Feamsters, 321 F. 2d 445

(CA. 2); Local: 57, International Union of Operat-

ae aos

i ae

| 46

ing Engineers Vv. Wirtz, 346 F. 2d 552 (C.A. 1)), and

were merely to verify the allegations of an individual

member’s protest. Congress could not have intended

so to restrict the Secretary when it must have been

anticipated that, by the use of his broad investigative

powers, he would frequently discover other serious

violations of the Act hidden from a complainant. or

overlooked by him. To confine his challenge of an

election to those violations complained of by the

union member would disable the Secretary from using

the fruits of his investigation to remedy the violations

‘disclosed thereby, and would tend to frustrate the.

congressional purpose of ensuring free and honest

that he was improperly denied the right to vote. The

Seeretary’s investigation might disclose that, un-

known to the protestant, the ballot box had ‘been

stuffed. Under the rationale of the district court’s

decision, the Secretary would-be powerless to act on

the. latter violation. The- decision would place a pre-

‘mium on‘the ability of the union officers to conceal:

violations from their members.

The facts in No. 58 well. illustrate the incongruity

of limiting the Secretary to the precise allegations of

- the complaining union member. The complainant,

Dial, was apparently able to secure evidence that nine

run-off election of July 13, 1963. The Secretary, upon —

investigation, quickly ascertained that a vastly ‘larger

number of ineligible members had been permitted to

vote in that run-off ‘election, and, further, that the

-eause of this disregard of the union’s own constitu-

tion was the Secretary-Treasurer’s practice of “car-

rying”’ some deliriquent members by making it ap-

pear that they had met. their dues obligations when

in fact they had not. An examination of the records

which disclosed the true status of respondent's mem-

bers with respect to the payment of dues also dis-

closed that ineligible members’ had been permitted to

be candidates, as well as to vote, and that the viola-

tions complained of had permeated the general elec-

tion as well as the run-off. It is doubtful whether the

complainant .could have gained access to these rec-

ords to support his election protest. It may be as-

sumed that hé’was unaware of the ineligibility of the

candidates who opposed him. Congress, having given

the Secretary broad investigative authority, cannot

have intended that he be hamstrung by the ignorance

of the complaining union member, by the artlessness

‘of his protest, or by the lack of evidence available -

to him in support of his objections. os

- The role of the Srendiany may be compared to that of the

General Counsel of the National Labor Relations’ Board in

investigating unfair labor practice charges under the Taft-'

Hartley Act. While the Board’s General Counsel (like the

Secretary, under the Labor-Management Reporting. and Dis-

/closure Act) can issue a complaint only ‘after receipt of a |

charge, he may on his own initiative include in his complaint

unfair labor practices concerning évents which have occurred

after the original charge was filed with him. The Supreme

‘Court discussed the role of the Board in unfair labor practice

proceedings—in language equally applicable to the function of

the Secretary of. Labor under Title IV—in Labor Board v.

Fant Milling Co., 360 U.S. 301, 307-308 :

| <A charge’ filed with the Labor Board is not to be meas-

ured by the standards applicable to a pleading in a private

48 a

’ Finally, the practice of the Secretary in investi-

gating fully the conduct of every election concerning

which he receives a complaint, and in including in

his suit allegations of all uncorrected violations that

are substantial, is. not opposed to the policy—which

‘underlies the requirement that a union member pro-

test the’ conduct of an election internally before filing

a complaint with the Secretary—“to allow unions

great latitude in resolving their own internal con-

troversies * * * before resort to the courts.”’ Calhoon —

v. Harvey, 379 U.S. 134, 140. For, it is also the Secre-

tary’s policy to notify the union in advance of filing

suit of all violations disclosed by his investigation, ‘so

‘that the union may take voluntary corrective action.

Thus, in No. 58,°at the conclusion of the Secretary’s

investigation, both the respondent local union and

the internationale were advised of his discovery of

the mass ineligibility of voters and candidates in both

phases of the election and of the underlying cause.

When the international requested particulars, the

lawsuit. Its purpose is merely to set in motion the machin-

ery of an inquiry..* * * The responsibility of making that

- inquiry, and of framing the issues in the case is oné that

. Congress has imposed upon the Board, not the charging

party. To confine the Board in its inquiry and in framing

- the complaint” to the specific matters alleged in the charge

- would reduce the statutory machinery to a vehicle for the

vindication of private rights. This would be alien to the

basic purpose of the Act. The Board was created not to

adjudicate private controversies but to advance the pub-

lic interest * * *. ar

Once its, jurisdiction is invoked the Board must be left

free to make full inquiry. under its broad investigatory .

power in order properly. to discharge the duty of protect-

ing public rights, which’ Congress has imposed upon it.

Secretary’s attorneys met with attorneys represent-

ing the international and furnished them with de-

_ tailed. information concerning the Secretary’s find-

ings. Yet, the international refused to recognize or

correct any violation in the general election of June.

8, 1963. The union had notice of all the violations

disclosed by the investigation and deliberately fore-

went an opportunity to take voluntary remedial action

before suit was filed—no less than if the internal —

complaint had Specifically pear the additional

violations.

In sum, to confine the iniatinear' S suit either to the

precise violations alleged in the internal: complaint

or even to violations. within the general scope of that

complaint would unwarrantedly. and unnecessarily |

impéde the. congressional goal of union demoeracy.

_ Il IN-NO. 57, THE DISTRICT COURT ERRED IN NOT FINDING

THAT THE 75-PERCENT ATTENDANCE REQUIREMENT

‘*“MAY HAVE AFFECTED’’ THE OUTCOME OF THE 1963

ELECTION

- Section 402(c) of the. Labor-Management —

ing and Disclosure Act of 1959, 29 U.S.C. 482(c), re-

quires the court to void an election tainted by a viola-

tion of Section 401 which “may have affected the

outcome.” Congress deliberately chose this language

to relieve the Secretary of the burden of showing |

that a violation actually did affect the result. S. 1555,

the bill. passed by the Senate, contained ‘the “may .

~ have affected” language. 105 Cong. Rec. 16150. H.R.

8342, the bill passed by the House, as well as the

_Kennedy-Ervin bill as originally introduced in the

50 ae

Senate (S. 505, 86th Cong., Ist Sess., 105 Cong. Ree.”

892), required a showing that the violation “affected”.

the outcome. 105 Corig. Rec. 15887. Faced with a

choice between these formulations, the Conference

Committee adopted the “may have affected’”’ language.

Conf. Rep. No. 1147, 86th Cong., 1st Sess., pp. 33-30.

Senator Goldwater explained (105 Cong. Rec, 19765) :

- The Kennedy-Ervin bill (S. 505), as intro-

duced, authorized the court to declare an.elec- -

tion -void only if the violation of section 401

actually affected the outcome of the election

rather than may have affected such outcome.

The difficulty of. proving such an actuality

would be so great aS to render the professed

remedy practically worthless, Minority mem-

bers in committee secured an amendment

correcting this glaring defect and the amend-

ment is contained in the conference report.

It is hardly debatable that the 75-percent attend-

_ ance requirement in No. 57 ‘‘may have affected” the

outcome of the 1963 election. It rendered more than

97 percent of the membership | ineligible to stand for

“union office, leaving only ten eligible members in a.

union of 500 members. Indeed, no ‘candidates were _

. even nominated for four of defendant’s eight elective

offices (recording secretary and three trustees), and

four members who were themselves ineligible under

the 75-percent attendance requirement were appointed -

to those positions in violation of the union constitution

and bylaws and of Section 401(b) of the, Act, 29°

U.S.C. 481(b), which —-. a union to “elect its

officers.”

So drastic a Yinnitintion of eligible candidates can-

not be assumed to have ha no probable or possible

~effect on the outcome of the election. Here, as it.

. happens, one candidate who was actually nominated—

John L. Miller, who filed the complaint that trig-

gered the Secretary’s suit—was disqualified from run-

ning by reason of the challenged attendance require-

ment. And surely the Second Circuit ruled correctly

in Wirtz v. Local Unions 410, Etc.-366 F.2d 438 °°

(C.A. 2), that any exclusion of willing candidates

‘from the ballot may affect the election’s outcome. As _

the court explained (366 F. 2d at 443):

The proviso was intended to free unions from

the disruptive effect of a voided election unless

there is a meaningful relation between a viola-

tion of the Act and results of a particular elec- _ |

tion. For example, if the: Secretary’s investi-

gation revealed that 20 percent of the votes in

an election had been tampered with, but that all —

officers had won by an 8-1 margin, the proviso

should prevent upsetting the election. Compare

Wirtz v. Local 11, International Hod Carriers,

211 F. Supp. 408 (W.D. Pa., 1962). But in the

cases at bar, the alleged violations caused. the

exclusion of willing candidates from the ballots.

In such circunistances, there can be nd tangible

"ev idence available of the effect of this exclusion

on the election; whether the outcome’ would

have been different depends upon whether. the

_ Suppressed candidates were potent Vv ote-getters,

had candidates not been suppressed, and so

forth. Since any proof relating to effect on out-

whether more union members would have voted -

come must necessarily be speculative, we do not

_ think Congress meant to place as stringent a

burden on the Secretary as the district courts

imposed here. ,

But we do not rest on that circumstance. eiusie.:

it is impossible to establish whether additional candi-

_ dates would have run even if the attendance require-

ment had not been in effect or whether those

candidates would have lost if they had run. Such

questions are hardly susceptible of proof; the statu-

tory test of ‘‘may have affected” was designed to

avoid such elusive and ‘treacherous inquiries.

In sum, any mass disqualification of candidates, we

suggest, satisfies the “may have affected” test and

likewise any disqualification of avowed candidates.

Under either standard, the district court here erred in

finding that the unlawful attendance requirement-was_ .

beyond its remedial powers under Title IV. |

CONCLUSION ; \

The judgments of the court of appeals should be

reversed and the cases remanded to the appropriate |

district court: In No. 57, the*district court should be -

instructed to enter an order directing a supervised

election as requested by the Secretary. In No. 58, the

district court should be instructed to decide ves

the additional allegations of the Secretary have merit

and, if so, to order the supervised eléction requested -.

by the Secretary in that case.

Respectfully submitted.

THURGOOD MarsHALL, ° )

Solicitor General.

CaRL EARDLEY,

Acting Assistant Attorney General.

Louis F. CLAIBORNE, ,

_ Ricwarp A. Posner,

Assistants to the Solicitor General.

- AuaN: §, ROSENTHAL,

Rosert V. ZENER, f

| “Attorneys,

CHARLES DONAHUE,

Solicitor,

Epwarp D. Friepan,-

— Deputy Solicitor,

JAMES R. Bearrp,

Associate Solicitor,

BEATE Biocu,

“Attorner Ye

f ; ’

'AUaust 1967.

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.