# Petition for Writ of Certiorari — Wirtz v. Hotel, Motel & Club Employees Union, Local 6 > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386412_0183%3A02 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1968 - **Citation:** 391 U.S. 492 ## Text » Opinions SEI EER WORE eames nee en e Jurisdiction _ _2 __. ENED” SEE, Sy + Ir Sen Se a ae RN aE ee NO eae a ncn cckcncuvendanwkundnitiheanhion Statute involved_____._.—- Ra vemeaeaken ik eciaanleraienche eae ‘Reasons for granting the weit. benucveacecsapechalscktos i acuddsthesaase acids ia aes Wnts eaaiart ‘ Cases: Calhoon v. Harvey, 379 U. S. Si cubsdnadachannnaie ; Goldberg v. Amarillo General Drivers, etc., Local Union. a ET nilesins wanniecsapne'’, mee a RIOT Appendix G____.__-- qedsnctdessecencscaccaunedeed aoe CITATIONS W irks v. Local 30, International Union of Operating Engineers, 242 F. SupQ\631, vacated, 366 F. 24-438 - , Wirtz v., Local 153, Glas . Bottle Blowers Association, » 372 F. 2d 86, certiorari. . 244 F.Supp. 745 vacat i 2e Cher oR in ustddannkabians Wirtz v. Local 174, American Federation of Musicians BP Fe NE BE nncscanncontcnacehedwicsnall® ' Wirtz v. Local Unions No. 9, etc., iiarentional Union of Operating Engineers, 254 F. ‘Supp. 980, affirmed, * 366 F. 2d 911, vacated as moot, 387 U.S. 96_____- : Wirtz v. Local Unions No. 406, etc., International Union of Operating Engineers, 254 F. Supp. 962_--- — . ‘ . — 288-903—67—_1 + ‘ “ lu. 10 II Statute: =e os | Laboi-Menegement Reporting ms Disclosure Act of 1959, 73 Stat. 519,29 U.S.C. 401 et seq.: Page ~ 2(a) (29 U.S.C. 401(@))---..-.------------ m Sec. 2(b) (29 U.S.C. 401(b))_.-- ee 71 Sec. 2(c) (20 U.S.C. 401(c))_.....-...2......-- 71 am GEE GD TI. Ga ic nccnccccnevcseccc 6 Sec. 401(a) (29 U.S.C. 481(a)).--_-_.__- nandawe .« Sec. 401(b). 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Rep. _ No. 1417, 85th Cong., 2d Sess., P- aa ncnucssccce 11 ani the Supreme Gur of the arte ies OcroBER TERM, 1967 | 7 oo No. é W. Wiitarp Wirz, SECRETARY oF LaBoR, Unirep- STATES DEPARTMENT oF LABOR, PETITIONER Vv. _ Horst, More AND Cius Empioyres Unton, Loca 6 PETITION FOR A WRIT OF CERTIORARI TO THE UNITED " STATES COURT OF APPEALS FOR THE SECOND CIRCUIT: The Solicitor General, on behalf of the Secretary — of Labor, petitions for a writ of certiorari to review the judgment of the United States Court of Appeals ' for the Second Circuit, entered | in this ease on Sep- tember 22, 1967. OPINIONS BELOW _ The opinion of the court of appeals (App. A infra, pp. 17-82) is reported at 381 F. 2d 500. The orders of that court denying the Secretary’s petition for re- - hearing and suggestion for rehearing en bance (App. C, infra, pp. 35-36) are unreported. The opigion of the district court (App. E, infra, p pp. 42-68) is re- ported at 265 F. Supp. 510; an earlier opinion of that court striking portions of the complaint (App. D, infra, pp. 37-41) is unreported. \ ° . . (1) ~ —- J URISDICTION . The decision of the court of appeals vom A, infra, p. 17) was rendered‘on J uly 28,- 1967. A timely peti- tion for rehearing and suggestion for rehearing’ en banc was denied on September 20; 1 1967 (App. C, infra, p. 35). Final judgment (App. B. infra,. p. 33) was ° entered on. September 22, 1967. The: —e this Court’ is ar ei under 28: U,B8.C. 1254(1).* . 7 QUESTIONS, PRESENTED | 1. er a union rule sev erely , restricting - the eligibility of members to become candidates for execu- ‘ tive office—here a ‘requirement of prior service in the " union’s legislative body—may be ‘deemed a “reason- able” ‘qualification under the Labor-Management Re- porting and Disclosure Act of 1959,. notwithstanding — ‘the ynusual eharacter of the rule and the finding that _ it effectively eliminates dissident candidates: ~~ 2. Whether a candidacy “qualification. “may have » affected” the outcome of a union election within the ‘meaning of the. Act when it resulted in.the disqualifi- , cation of several nominees for union office and ren- dered approximately 93 percerit of the ne | ineligible to run for office. 3. Whether, when a complaint-has-been prestated a to the Secretary of Labor, he may allege violations _ which are disclosed by his investigation of the com- eres even magn they were not — in the. ‘ > | STATUTE INVOLVED ~The walieiad provisies of. the bidine Sieben Reporting and Disclosure Act of 1959, 73 Stat. 519, 29 U.S.C. “401 et seq. are — in ‘ein G, sf, : pp. 71-78. _ STATEMENT A, iiinias local union “represents bartenders, ; thaids and kitchen and. dining-room help employed fe ye moteis and clubs in‘ New York City (App. Tay.” ‘The local, - whose membership. exceeds (App. 57a-58a2), is divided into geographical. rit which elect delegates to the Assembly. Al- ‘though deseribed by the union’s bylaws as. cm body (App. 271a), in actual practice the Assembly has served merely to approve. reports and policies of the union ’s officers and executive board. The President of the union could. not recall one Instance — in rece t years in which the Assembly disapproved any. action of the executive board (App. 94a). The Assembly usually meets only four times a year, ‘three meetings _ lasting no more than two. or three hours, the fourth for an entire ‘day (App. 27la, 283a). Attendance at 7 Assembly meetings is poor: (App. 281la). Some As- _ of appeals... sembly members serve on negotiating: committees and. other bodies within the union which play a more active role in union affairs (App. 124a-128a)..The only group to which all 400-odd: members of the As- © sembly belqng is the district council .in each district, and this is a foru for internal ‘inion discussions . “App. ” refers to plaintiff- bal aN appendix in the -court r xf 4 7 ‘yather than :an organ of actual umion government or . _ administration (App. 127a-128a)..° ‘The Assembly, which has almost 400 members (dion, -127a), consists of one. representative for every 75 members of the-union (App. 265a). The officers of the union are ex officio members (App. .2638a, '266a). The by-law restriction here in issue provided that in order to be eligible to‘ run for union office the candidate must have been. a member of (a) the Assembly, (b) the akin boand, or (c) the Shop Delegates Coun- cil (the legislative body of the union prior to 1951) (App. 269a). Since 1951, when ‘the saan organization of the union was established, the Administration Party has controlled the union and the Assembly (App. 101la- - 105a)> During this period; the Administration Party has always tun a full slate fdr the Assembly, and every candidate on that slate has won in each elec- \ tion (App. 101a-105a). As the district court — - (App. E, infra, p. (53): : . .7In practice it was not possible to be ee : & to the Assembly except with tlie. blessing o Administration’ Party conferred by: selection a run for the Assembly on Row A. This was doubt- less in large part because there was ste wl a full slate: of opposing candidates for the Assembly. The candidates to run on Row’A for the Assem- bly. were selected by the incumbent group. of offi- cers and were put in’ nomination after caucuses of invited members, attended by officers. It was only natiral that candidates selected to run on’ Row A for the Assembly would be supporters of ] ; ~ pile era: 5 : the administration. All’ éandidates on Row A weré pledged to support each other. Dissidents f _eould not be elected to the Assembly. | an Thus, the district court found, “dissidents could not. become eligible to be opposing + candidates for office . and effective opposition was thus sharply srrmate ll '. (App. E, infra, p. 62). In 1965, for the first time in 14 years, the Adninis- tration Party faced organized opposition in an elee- tion. A group calling itself,sthe Membership Party nominated+ members to run “for the four general of- fices—president, general organizer, secretary-treas- urer and recerding secretary (App, 249a, 273a), and __ also put up candidates for 13 of the 27 additional ea executive positions within the union to be elected from the various districts. However, of the four Member- ship Party nominees for general union affice, one— the nominee for secretary-treasurer—was rul a inéli- gible‘because he did not meet theyprior office-holding requirement;. as were séven: of *. 13 Membership Party candidates for district office (App. 250a, 273a). The consequence was that the Membership Party ran candidates for only four of the 31 principal offices in ; the 1965 election—president, general. organizer. and business agent in two districts (App. 275a )—while the administration ran a full slate (App. 275a). About,40 percent of the eligible membership voted at the elec- tion ( App. 57 a, 58a, 275a) and the entire administra- tion slate won. Where administration candidates were a they won by margins of es 7 to 1 (App. 101a, eicen 2. The Labor-Mat@ement Reporting and Disclo- sure Act of 1959 directs the federal district ceurt, at . the suit of the Secretary of Labor acting upon the complaint of a union member, to set aside a union election and order a new election’ under the super- vision of the Secretary if the court finds that the Act was violated and that the violation ‘ ‘may have affected. -.the outecome”’ of the election (Section 402(¢), 29 U.S.C. 482(¢)). This action was brought by the Secre-- tary, on the complaint of a member of Local 6, to set aside the union’s May 1965. election and to direct a supervi election. ‘The Secretary alleged that the union /had violated Section 401 of the Act, which pro- vides| that every member in good standing shall be eligible to be a candidate for and hold office, subject ' only .to “reasonable qualifications’’ (App. 4a). ' After trial, the district court held that the rule re-_ stricting candidacy to prior members of the Assembly was a violation of the Act. The court found that the effect of the rule was to curtail opposition, because in practice only candidates on the administration ticket could be elected to the Assembly (App. E, infra, pp. 62-63). Moreover, the court noted that undér the union rules an officer could be appointed to fill a vacancy although he did not satisfy the eligibility requirement ‘for election to office. Thus, the court found, “once such an officer is appointed, he automatically becomes a member of the Assembly ‘and immediately becomes _ eligible to run thereafter’ for any union office. This . enables the incumbent group to qualify members for elective. office by. a procedure not available to dissi- bm ef eat Baha —— 7 dents”’ (App. E; infra, pp. 62-63). The court rejected _ the attempt of the union to justify its rule on the ‘ground that the complexity of union problems re- * quires that officers have: some experience in union . affairs: “the premise [is] that the membership at large | cannot be trusted properly to evaluate union experience in eastting election ballots. The philosophy of a free _ democratic society, expressed i in the Act, does not toler-.: ate such a premise” (E, infra, p. 61).- The district court, however, refused to order a su- pervised election, on the ground that it could not find that the violation of the Act “may have affected the outcome” of the union’s 1965 election (App. ‘Einfra, pp. 63-65). Although’ application of the prior “office- - holding requirement caused the - disqualification of nine ‘candidates, the court noted that there was, .. nevertheless, a contested election at which the Mem- unl ' bership Party: ran opposing candidates for president and nine other offices. Since all of the Membership Party candidates who were allowed to run lost by ' margins of 7 to 1 or better, the district court eoncluded _that the presence of the diSqualified nominees on the slate would not have changed the result. In its view, - . the Membership Party’s failure at the rolls resulted - from its lack of any “dramatic or important issue to _ rouse the membership against the incumbents” (App. a _E, infra, p. 65) and its failure to run a full ead of “ eabdlidates for the Assembly. The court of appeal upheld the district court’s re- fusal to ordér a supervised eléction, but for different | _Teasons, The thajority of. the ‘court of appeals ruled — | that the prior office-holding requirement was lawful, commenting that: “It does not seem to us to be sur- prising that the union should ‘hesitate to permit a cook or a waiter or a dish-washer without any training or rience in the management of union affairs to take n responsibility -for the complex and difficult prob- ~ lems of administration of this union’’ (App. A, infra, 7: sp. 24). The.concurring judge thought that the dis- trict court’s s findings as to’ the effect of the rule in » __eurtdiling opposition—not alluded to by. the major-. - ity—established the unreasonableness of the require- ment, but accepted the district court’s refusal to find thatthe outcome of the election might have been affected thereby (App. A, infra, pp. 28-32). __ _. 8. The Secretary’s complaint had alleged three viola- tions in addition to application of the prior office-hold- ing rule: failure to give adequate and timely notice of the composition of election districts, improper in- terference with the members’ right to vote for and support candidates, and failure to fill certain’ union offices by election (App: 6a). The district court struck these, allegations from. the coMplaint; on the ground . that the union member had not protested the addi- — tional violations in the internal complaint which trig- gered the proceeding (App. D, infra).-At trial, the Secretary offered to prove that, ‘prior to bringing t this . suit, officials of the Department of Labor called the -union’s attention to two of the three additional viola- tions (Apn.' 115a--119a). The district court, however, excluded the evidence and declined to change its rul- ing limiting the scope of the complaint (App. 120a, 233a-235a). The court of appeals agreed, on the | y ; 2 ground that no. member of the union had filed with the Secretary a complaint addressed to the additional violations specified in the Secretary’s suit. The court rejected the|Secretary’s argument that he has a duty - in enforcing the statute to protect the .pubdlic interest, . ruling that the Secretary’s only function i is to act as | the “‘union member’s lawyer” and that he gnay, there- fore,- only -litigate points initially raised by a union member (App. A, infra, p. 27). | _ REASONS FOR GRANTING THE WRIT 1. The case raises an important question in the ad- ministration of Title IV of the Labor-Management Reporting and Disclosure: Act of 1959—the extent to which a union remains free to restrict the riglit of its members to run for elective office by imposing nar- rowly restrictive candidacy qualifications, and, specifi- cally, whether a requirement of prior office-holding is “‘reasonable” under the Act when it severely cur- tails the opportunity to elect opposition “candidates. Although no direct conflict among circuits has yet arisen on the legality of the type of qualification here involved, the decision below represents a significant -. departure from the approach of most courts and’ a prompt and authoritative answer is necessary in view of the volume of litigation under the Act and the ae fundamental character of the question.* The coneept ?The decision of the court of appeals has already been fol- lowed ‘by one district court (Wirtz v. Local 174, American . _Federation of Musicians, 272 F. Supp. 294 (E.D. La.)), and - may prove (dispositive of the Secretary's S pending action against * the National Maritime Union in the Southern District of New York (Civil Action No. 66 Civ. 4519). WwW of reasonable quelifications is indeed central to the ‘ electoral provisions of the Act. In determining whether a particular cligibility rule ‘is a “‘reasonable qualification” it would seem’ obvious that the justification offered, by the union must be © weighed against the plain intent of the statute to afford a wide opportunity for union members to run - for office, must be related to the practice of compara- . ble organizations with elective officers, including other unions, ‘and must be tested by its’ actual effect. That has been the approach followed by the Secretary of Labor, to whose “special knowledge and discretion” questions arising under Title IV are entrysted in the first. instance (see Calhoon v. Harvey, 379 U.S. 134, 140), and these criteria have generally been applied by other ‘courts—including the district court in the instant case—in ruling on the validity of restrictions on candidacy.* Yet, in the decision below, the majority of the court of appeals simply accepted respondent’s » asserted need to limit candidacy to those with experi- ence and training in union affairs, without iving rie consideration to the unusual character of the chal- 5 See, e.g., Goldberg v. Amarillo General Drivers, etc., Local Union No. 577, 214 F. Supp. 74 (N.D. Tex.); Wirtz v. Local Unions No. 406, etc., International Union of Operating Engi- neers, 254 F. Supp. 962 (E.D. La.) ; Wirtz v. Local 153, Glass Bottle Blowers’ Association, 244 F. Supp. 745 (W.D. Pa.), va- - ‘.eated on other grounds, 372 -F. 2d 86 (C.A..3), certiorari granted, 387 U.S. 904; Wirtz v. Local Unions No. 9, etc., Inter- national Union of Operating Engineers, 254 F. Supp. 980 (D. ' Colo.), affirmed, 366 F. 2d 911 (C.A. 10), vacated as moot, 387 U.S. 96; Wirtz v. Local 30, International Union of Operating Engineers, 242 F. Supp.: 631. (S.D.N.Y.), vacated on other _ grounds, 366 F. 2d 438 (C.A. 2). | e ll. ‘lenged candidacy rule, in other local unions and else- where, or to its very substantial practical impact hére. ~ _ In declaring that all union members in good stand- ing were entitled to run for.union office and to vote in union elections, subject only to ‘‘reasonable’ quali- fications,” Congress may ° well have barred any. re- requirement of prior office-holding since—unlike a: re- quirement related to age, length of membership’ in the union, or a clean criminal record—it is bound to disqualify the majority of the membership. So drastic ‘a curtailment of democratic oppartunity. seems hard to square with the clearly, expressed premise of Title ° IV: the desirability of ‘assuring democratic ‘proce- dures in labor unions” and achieving ‘‘a revitaliza- ‘tion of the democratic processes of labor unions.”’ — Interim Report of the Select Committee on Im proper Activities in the Labor or Management Field, 8. Rep. No. 1417, 85th Cong., 2d Sess., p. 452. Whatever the- . view of an earlier day, it is today accepted -that . onerows Office-holding requirements .have little or no , place jn a democratic electoral progess. Radically lim- iting the field of possible candidates’ greatly impairs choice and opens the door to facile ways for the inside group to thaintain control. It seems incon- ‘ sistent with the objective of Title IV, which was to _ afford union members a “real opportunity to nomi- | nate opposing candidates.’’ 105 Cong. Ree: 885 (re- .marks of Senator Kennedy).. The Secretary of Labor has not, however, gone so far in his\administration of the Act..Nor is it neces- - x 12 sary, for present purposes to argue that no prior office-holding requirement cAn ever be deemed reason- able under Titlé IV. It is enough to suggest that such a candidacy qualification must be scrutinized with great care and that the burden is on the proponents of the rule to justify the need for it. Tested by that standard, the requirement at bar falls short. It is not | common in labor union experience.* As applied here, the rule disqualified more than 93% of the local’s 27,300 members. And, what is more, on the basis of" a careful analysis (App. E, infra, pp. 53, 62) fully sup- ported by the record (App: 100a-105a, 250a-251a, 253a-254a, 256a-257a), the district court in this case found that the only members who could comply with the union’s requirement of prior office-holding were those favored by the incumbents—this because, aga practical‘ matter, only, candidates for the Assembly who appeared on the ministration slate were elected to the Assembly and hence eligible, under the — 3 rules, to run for executive office. This finding was ‘not: *A study of the: larger unions which was introduced in evi- dence showed that none of the 95 national and international . unions whose membership exceeds 20,000 imposed a constitu- tional requirement that candidates for local union office have ‘prior office-ltolding experience (App. 225a-227a, 229a-231a), One international union, the International’ Ladies’ Garment Workers Union, has a constitutional provision limiting paid officerships in the locals to those “tho either have had previous union office experience or who have completed a training course. - Only 32 of the 125 largest locals (those with 900 or more nin - - bers) affiliated with the same International ¥ respondent had - any such requirement (App. 220a; 221a). Antf of the 66 local unions reporting receipts of over one million dollars in 1964, only respondent limited candidacy’ to prioy office-holders with ng,alternative basis for qualification (Apy. 229a-230a). . +- - gy ° 7 . & disturbed by the court of appeals. Its ruling sustain- - ing -the requirement of prior office-holding thus | - amounts to a blanket.endorsement of such restrictive rules—a view wholly.at odds with the scheme of the Act. ns - ‘The court of appeals stated: “It does not seent to ‘us to be surprising that the union should hesitate to permit a cook or a waiter or a dish-washer without any training or experience in! the management of union affairs to’ take on responsibility for the com-: plex and difficult problems of administration of this union.’’ (App. A, énfra, p. 24.) But if; as we contend, the object of Title IV is to inject democratic processes into the management of. union affiairs, it does seem surprising that cooks, waiters and dishwashers should be barred-on such a ground from running for office in their own union, when we remember that inexperi- enced ‘individuals are perfectly freé to seek political | offices far more demanding. and responsible than the offices at stake in a union election. A presumption that lack of prior office-holding establishes incapacity to seek executive office is opposed to accepted notions of — democratic process.. | 3 no ' Even on its own terms, ‘the asserted justification fails. Former members of the old, Shop Delegates Council who had not held that or any other office for at least 14 years’ were nonetheless eligible candidates for executive office—indeed, 1182 of the 1725 eligible candidates satisfied the requirement of prior office- ~) ‘holding in os fashion.° Stony er, to fill vacancies union offici als!eould appoint members of the union who had never satisfied the requirement of prior office- holding. Even if restricting* candidacy to individuals with previous official experience could commend itself to the democratic ideals of the Act, the requirément in suif, here is not reasonably designed to exclude the inexperienced. That is additional reason why, in our view, it should not be sustained. " 2. This case raises ‘two other issues of major “im- portance in the administration of Title IV..The first * is whether a candidacy requirement which disqualifies more than 90 percent of the union tnembership* ‘and among them ‘several willing candidates can nonethe-" less survive by virtue, of the provision of Section 402 (c) that an: election will be set aside only if the viola- -tion “‘may have affected’ its outcome. The second is whether in a suit to enforce Title IV the Secretary . May allege violations not recited—either explicitly or implicitly—in the internal protest of the union mem- ber. or the complaint filed with the. Department of Labor which triggered the proceeding. Both questions (which we submit should be answered in the affirma- tive) have been briefed and argued -to the Court, in | a , oes cases now awaiting decision. Wirtz v. Local 153, No. 57, this Term; Wirtz v. Local Union No. 125, No. 58, this Term. We urge their plenary. consideration in the instant case only in’ the event that the Court fails to decide them in the other cases. _ * The figure of. 1182 is computed by subtracting from the 1725 names estimated by the union to have been eligible to run in 1965 543 names from the union’s list of members eligible by virtue of their, Assembly service (App, ica & } “eC - CONCLUSION For thte foregoing reasons, the petition for 2 a writ of certiorari should be granted. Respectfully submitted. ERwin N. GRISWOLD, | ne - Solicitor General. =~. Epwin L. Waist, Jr. eal - | . Assistant Attorney General. Louis F. Cuarorng, i Assistant to the Solicitor General. Auan S. RosENTHAL, _-Rosert V. ZENER, ; . ane : ‘Attorneys. Oasseie DoNnaHUE, Solicitor, — | Epwarp D. FRiepMaAN, - | 2 Deputy Solicitor, , GrorcE T. AVERY, 7 Associate Solicitor, ‘ | Department ol Labor. — - DECEMBER. “1967. — hae 282-90267_2 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386412_0183%3A02. Public record. Not legal advice.