Appendix — Wirtz v. Hotel, Motel & Club Employees Union, Local 6

Supreme Court brief1968

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Text

/ APPENDIXA .

United States Court of Appeals for the Second Cireui®

No. 513—September Term, 1966 ©

Argued June 13, 1967—Decided July 28, 19§7 ;

| ~ Docket No. 31272 .

, : y

W. Wiwtarp: Wirtz, Secretary or Laxsor, UNITED -

StaTES DEPARTMENT OF LaBoR, Pipa ie ie

Horet, More. AND Ouun EMPLOYEES. Union, LocaL 6

_ DEFENDANT-APPELLEE

Before Hays ind FEINBERG} Cireuit Judges; DrMocx,

District J udge* *

Appeals - both plaintiff and defendant from a -

judgment of the United States District Court for the

‘Southern District.of New York (a) which was entered

upon a decision of Inzer B. Wyatt, Judge, (1) hold-

ing that certain union practices in, connection with

an election. for union office could not be used as

grounds for voiding the election under § 402(c) of the

Labor Management Reporting and Disclosure Act of

*Of the Southern District of. New York, sitting by ae ,

(17)

° x ‘ e ‘

7% q

/ : . . a

- = -

1959, 29 U.6.C. § 482(c), -because the action of: the’

plaintiff Secretary of Labor was’ not based upon the

complaint of a union member as required by § 402(a),

29 U.S.C. §482(a), and (2) holding that, though a

‘ ee ; ;

certain by-law of the’ defendant union limiting can-- -

didacy for union office violated § 401(e) of the Act,

29 U.S.C. § 481(e), an election in which the by-law

was applied could not «be declared void under the’

provisions of § 402(c) because plaintiff failed to show .

that the violation of Section 401(e) “may have -af-

fected the outcome” of the election, and (b) which

enjoined (3) the application of the questioned by-law

to future elections.

' Affirmed as to (1); reversed as to (2) and (3).

Rosert E. KusHner, Assistant United -States »

Attorney (Robert M. Morganthau, United |

States Attorney for the Southern District of

New York, and Martin P. Solomon, Assistant

United States Attorney, on the aiid for

Appellant,

JEROME B. Lurie, New York, New York (Cohn

& Glickstein and Leonard Leibowitz, on the

brief), for Appellee. -

Hays, Circuit Judge: Both a Secretary of ;

‘Labor and defendant union appeal from a judgment — *

of the United States District Court for the Southern _.

District of: New York in a case involving an election

of officials of the defendant union. The district court

held that a certain by-law of the union limiting. can-

. didacy for union office was violative of Section 401(e)

> of the Labor Management Reporting and Disclosure

Act of 1959, 29 U.S.C. § 481(e),! but declined to set

aside, under the provisions of Section 402(c) of the

Act, the election in ‘which the by-law was applied be-.

cause-the Secretary failed ‘to show that application

of the questioned by-law ‘may have affected the out-

come” of the election. Sinwens the district court

enjoined the application. of the, by-law to future elec-

tions. During the course of the hearing on the Seere-

tary’s application, the district court rejected certain.

evidence proferred by the Secretary with respect to

see violations of Section 401 which the Secretary |

e) In any election” required. by this section which is to be

held by secret: ballot a reasonable opportunity shall be given for

the nomination of candidates and every member in good stand-

ing shall be eligible to be a candidate and to ‘hold office (subject.

_ to section 504 of this_title and to reasonable qualifications: uni-

formly imposed) and shall have the right to vote for or other-

wise support the candidate or candidates of his choice, without

being subject to. penalty; discipline, or“ improper -interference

or reprisal of any kind by such organization or any member

thereof. Not less than fifteen days prior to the election notice

- thereof shall be mailed to each member at his last known home

address. Each member in good standing shall be entitled to one. .

_ vote. No member whose dues have been withheld by: his em-

ployer for payment to such organization pursuant to his volun-

___ tary. authorization provided for in a collective bargaining agree- |

ment shall be declared ineligible to vote or be a candidais for

office in such organization by reason of alleged delay or default .

in the* payment of dues. The yotes cast by members of each

local labor a be counted, and the results pub-

lished, separately. The blection officials designated in the con-

, Stitution and bylaws or the secretary, if no other official is .

designated, shall preserve for one. year the ballots and all other

records pertaining to the election. The election shall be con-

ducted in accordance with the constitution and bylaws of such

- organization insofar ag they are not inconsistent with the provi-

_ Sions of this subchapter.” - aha

# ‘ \

é es \

: =" R \ | \

alleged that the union had ‘committed in the course

of the election, on the ground that the Secretary’s

action was not supported by any complaint from a

union member with respect to these alleged violations.

(See § 402(a), 29 U.S.C: \§ 482(a)).?

Plaintiff attacks —

(2) the rejection oO evidence

tional violations.

; - Defendant attacks

(1) the holding that the union ’s — vio-

lated Section 401(e); and»

(2). the i issuance of an injunetion against future

_ Violations.

We hold that the lower court was correct in its ral

ing with respeet to the additional alleged violations,

but reverse the decision that the by-law was violative

of Section 401(e). For the reason last stated and also ©

for the reason that the court had no power to enjoin

future violations, we set aside the injunction which

the distritt court ordered.

to the. addi-

* (a) A member of a labor organization (1) who has ex-

hausted the remedies available under the constitution and by-

laws of such organization and of any parent body, or (2) who

has invoked such. available remedies without obtaining a final ~

. decision within three calendar - months after their invocation,

may file a complaint with the Secretary within one: calendar

month thereafter alleging the. violation of any provision of

section 481 of this title (including violation of the constitution

_ and bylaws of the labor organization pertaining to the election

and removal of officers). The challenged election shall be pre-

sumed valid pending a final decision thereon (as hereinafter '

provided) and-in the interim ‘the affairs of the organization

shall be conducted by the officers elected or in such other man-

her as its constitution and bylaws may provide.”

We turn first to the district court’s determination

that the questioned by-law constituted .a violation of |

the statute. |

The by-law provides: ¢_

“In order to be eligible for nomination as an

officer, a candidate must possess the following

qualifications: (1) He must be a member of

the Uifion in continuous good standing for a

period of two years immediately preceding his

nomination; (2) He’ must be a member of

either the Assembly or the Executive Board,

or else, at some time in the past, have served at

. least one year on either the Executive Board,

the Assembly, or the old Shop Delegates Coun-

cil. In order to be eligible for nomination as. a

member of the Executive Board, as a delegate .

to the Assembly, or as a department delegate,

a candidate must be a member of the Union

in cogtinuous good standing for a period of at

least one year immediately preceding his nomi-

nation.”’ ms fin 4

The aspect of the clause to which the Secretary:

takes exception is the requirement of previous sérvice

_ on the Executive Beard,-in the Assembly, or on the

Shop Delegates Council.’ ,

-Section 401(e) provides that ‘every member in

good standing shall be eligible to be-a candidate and

to hold office (subject to * * * reasonable qualifica-

tions uniformly imposed) * * *.’? 29 U.S.C. § 481(e)._.

* Since service on the Executive Board is confined to officers

and members of.the Assebly, the provision of the by-law for

previous service on the Executive Board may be disregarded.

The issue which we must resolve § is whether the eligi-

bility: restrictions of the‘union ee are ‘reasonable

- qualifications.”’

In determining this question: we do not regard the -

“clearly erroneous’’ rule as $ controlling, see Donaldson

Publishing Co. v. Bregman, Vocco & Conn, Inc., 375

F. 2d 639, 641 (2d Cir. 1967); Baranow v. Gibralter

_ Factors Corp., 366 F. 2d 584, 587-89 (2d Cir. 1966) ;

Mamiye Bros, v. Barber S.S. Lines, Tnc., 360 F. od:

774, 776-78 lod Cir.), cert, denied, 385 U.S. 835

(1966), although even if it were,-we are left with .

‘the definite and firm conviction that .a mistake has

been committed.” See United States v. United States

Gypsum Co., 333 U.S. 364, 394-95 (1948).

:; In deciding the issue of reasonableness we must

. keep in.mind the fact that the Act did not purport

to wy he away from labor unigns the governance of —

. their internal affairs and hand that governance.

_ over either to the courts or to the Secretary of Labor.

The’ Act strictly limits official interference in. the

internal affairs of unions. See, Calhoon v. Harvey,

379 U.S. 134 (1964) ; Gurton v. Arons, 339 F. 2d 371

(2d Cir. 1964). The Act prescribes only ¢ertain basic

minima and leaves the area not covered by these

“minimum prescriptions to the decisions of the unions

_ themselves.

**Congress intentionally . created a narrow

remedy under Title IV of the LMRDA so that -

'. interference with union elections and manage- —

ment would be kept at a minimum.” Wirtz v.

Locals 410, 410A, 410B. & 410C, Int’l Union of

Operating Engineers, 366 F. 2d 438, 442 (2d

Cir. 1966). . ~

The Supreme Court, in discussing Title IV, referred

to “‘the general congressional policy to allow unions

cal

l¢

great latitude in resolving their own internal con-

troversies.’’ Calhoon v. H. arvey, supra, 379 U:S. at 140.

_ The legislative policy of ‘leaving to the unions the

maximum degree of self-government is emphasized

at many points in the legislative history. |

In Senate Report No. 1684, 85th Cong., 2d Sess, :

12-15 (1958), for example, the following appears:

“The committee gave careful study to-various .

. Propesals providing for the conduct of union

elections by the National Labor Relations«-Board

* upon the request of a small percentage of the

-members. The committee rejected this approach

for two reasons. | ee 4

“One fundamental objection: is that these

proposals turn o¥er to an arm of the State the

responsibility for carrying on-the internal gov-

ernmental processes of voluntary associations

without any showing that the union officers and

members are incoMpetent or corrupt. Such a

measure does not promote freedom or democ-

racy. It reduces a ee It.denies the *

private responsibility and self-determination

which lie at the heart of. a voluntary =r ,

. tion.” Reprinted in United States Departntgnt

of Labor, Legislative History of the Labdér-

Management Reporting and Disclosure Act of —

1959, p. 702 om [Cited hereafter as “ egis-

In Senate Report No. 187, the Committee ferred

to the following “principles” as governing the pro- ,

posed legislation :

**1. The. committee recognized the desira-

bility of minimum interference by Government

in the internal affairs of any private organiza-

tion. Trade unions have made a ‘commendable

effort to correct internal abuses; hence the

committee: believes that only: essential stand-

ards should be imposed by legislation. More-

‘24°

ever, in establishing ‘and entinda statutory

standards great care should be en* not to

‘undermine union self-government or weaken

unions in their role as eee

agents.

“9. Given the maintenance of minimum demo-

' eratic safeguards and detatled essential infor-

mation about the union, the individual members

are fully competent to regulate union affairs.

i The committee strongly opposes any attempt to

prescribe detailed procedures and standards for

the conduct of union business. Such paternalis-

tie regulation would weaken rather than

strengthen the labor movement; it would ’¢ross |

over into the area of trade union licensing and

destroy: union independence.” S. Rep. No. 187,

86th Cong., Ist Sess. 7 (1959), pepeinded in

U.S. Code Congressional and Administrative

News, 2323 (1959).

Turning to ‘the spiplication of these polities to

‘the present case, we hold that-it is not self-evident

that. basic minimum principles of union democracy

require that every union entrust: the administration

of. its affairs to untrained and inexperienced rank and

file members. Local 6 has over 26,000 menibers. Its.

assets amount to more than $2,300,000. Its Welfare,

Pension and Medical Funds have assets of over $30,-

000,000. The local has jurisdiction of hotel, motel and

club employees throughout New. York City and thus

deals with hundreds of employers on behalf of em- -

ployees having a number of differing skills’ as well

as on behalf of semi-skilled and unskilled employees. oi

_. It does not seem to us to be surprising that the union.

should hesitate to permit a cook or a waiteror a dish-

washer withdht any training or.experience in the man-

agement of union affairs to take on responsibility for

the complex and difficult — of administration

of this union.

Membership in the union’s Assembly, which under

the union’s by-law is the principal basis for eligibility

. ““for positions of greater responsibility, provides an

+ opportunity for meeting with: the officers and with

other more experienced members for discussion and

consideration of contract negotiations, enforcement of

contract clauses, union finances and many other” as-

pects of union administration. Members of the Assem- - +

bly are also members of district councils and they par-

ticipate there in the work of the various committees

which deal with all aspects of union problems:

We do not believe that it is unreasonable for a

union to condition candidacy for offices of greater

responsibility upon a year of the kind of experience

and training that a union-member will acquire ina

position such as that of membership in Local 6’s

Assembly. =?

' he by-laws provide a procedure for their amend-

ment. If the rank and file members of the union had

felt at any time during the many years in which

the eligibility restriction has been in effect that they

‘were being unjustly barred from office they could

- have sought to amend the restrictive provision. The

record shows no attempt to bring about such an

wera

-. Phe Secretary of Labor makes much of the fact that”

only about 1,700 mémbers of the union are eligible

for election to the 31 elective offices. However, wh

this number is combined with the fact that all mem-

bers in good standing for one year have the opportu-

nity to become eligible for office by getting themselves

elected: to seats in the four hundred-odd member As-

sembly, the numbers, per se, do not seem to us to

establish unreasonableness.

- |

26 ©

“Tes is not the function of the Secretary. to ‘determine

what prescribed qualifications for office will bests serve

the purposes ‘of union democracy nor to dictate what

policy unions should follow in limiting candidacy for

union office. The union’s own rules as to eligibility

must prevail unless they impose unreasonable quali-

fications. We are persuaded that in the present case

the Secretary has trespassed upon an area of union

governance which is left by the statute to the union’s * ©

decision. We do not believe that a proper reading of

the statute in the light of ‘its history ean justify the

Secretary’ s finding: that the union has violated Sec-

tion 401 by _ adopting the contested — >

requirements.

Since we have. determined that the by-law is a rea-

“sonable qualification, it is not necessary ta decide

whether this restriction on candidates ‘“‘may have af-

‘fected the outcome’? of the election. § 402(c), 29

U.S.C. § 482(e). SET) we do not deal with that

issue. |

. The Secretary’s complaint sought to set aside the

election on three other grounds in addition to the

restrictive by-law: that the union failed to give ade-

quate notice of the composition of the election- dis-

tricts; that there-was improper interference with the

members’ right to vote for and support.candidates

of their choice; and that certain offices were not filled

by election. : .

. On defendants’ motion these additional grounds

were stricken from the complaint by Judge McLean.

- Judge Wyatt at the trial refused the Secretary’s offer

of proof with respect to these additional allegations.

We uphold the rejection of the additional allega-

tions on the ground relied on by Judge McLean in

"the district ‘court, namely, that no member of the

union filed with the Secretary any complaint as to

these items. Section 402 (a) and (b), 29 U.S.C. § 482

‘(a) and (b), provide that: , |

~ “(a) A tember of a labor organization— _

/ .“(1) who has exhausted th remedies avail-

able under the constitution an bylaws of such

organization and of any. parent body,

* x we aa? *

may file a complaint with the Secfetary * * *

alleging the violation of any provision of sec-

tion: 481 of this title * * *, Age. -

“(b) The Secretary shall investigate such

complaint and, if;he finds probable cause to

-_ believe that a violation, of this subchapter has

~ occurred and has not been remedied, he shall

= **' bring a civil action * * * to set aside the

invalid election * * *,” ee

_ It thus appears from the language of the statute

itself that the Secretary may proceed to vindicate only -

those oo with respect to which he has received.

complaints. The legislative history reveals that Con-

gress intended that the Secretary should have the

power to bring an .action only after -a complaining

member ‘has exhausted his union remedies. See,- for

example, remarks of Senator Kennedy, June 12, 1958,

Legislative History, supra, at 1093;'S. Rep. No. 1684,

85th Cong., 2d Sess. (1958), reprinted in Legislative

History, supra, at 701. fae

The Secretary argues strongly for a general power

to protect the public interest, but nothing in the

statute or in its legislative background suggests the

existence of any such general power. The Secretary’s

function is, in Senator Kennedy’s words, to act as

“the [complaining] union member’s lawyer.’’ See

Legislative History, supra, at, 1093, — :

- 7°

e °

7 A suit to declare a.union election void “may only

be brought after a.union member has made a proper

complaint to the Setretary,”? Wirtz v. Local Unions

410, etc., supra, 366 F. 2d at 442; accord, Wirtz v.

Locals 9, 9-A, & 9-B, Int’l Union of Operating Engi-

neers, 366 F'. 2d 911 (10th Cir. 1966), vacated as moot,

35 US.L. “Week 3403 (U.S. May 15, 1967), — U.S.

—— (1967); see Wirtz v. Local 191, Int’l Bhd. of .

hava 321 F. 2d 4455 448 (2d Cir. 1963).

| we

The trial judge, ‘though ‘he refused to void the’elec-

tion, enjoined the union from applying its restgictive

a by-law-in future elections. The injunction ‘must be set

aside, not only because we hold the by-law not viola-

tive. of Section 401(e), but also because, as the Secre- ,

' tary concedes, the court has no power under the Act -

toi issue such andnjunction.

W. Willard Wirtz, etc. v. Hotel, Motel and Club Em-

ployees. Union, Local 6

I-coneur. ~

| WE.

July 6, 1967. ,

I concur; with opinion of my own.

4 ——EEE

Dimock, District Judge (Concurring) : I concur in

the majority’s holdjng in so far as it disapproves an

injunction and its omission to disturb the district

‘ecourt’s denial: of thetecretary’ s — to set

aside the election.

“My eoncurrence in the elimination of the provision

for the injunction is based upon the Seeretary’s con-

. cession of lack of power in the district court.

{

- 29

Though I concur.also in the majority’s omission to

disturb the judgment in so. far as it fails to set aside

the election; I reach the result on different grounds.

The district court held that the qualifications upon

candidacy were not reasonable within the terms of

section 401(e) but that it could not make the neces-

_ Sary statutory: finding that the violation of section 401

may have affected the outcome of the election. The dis-

trict court, therefore, failed to set aside the election.

My brethren hold that the district court erred in find- |

ing the qualification unreasonable and thus agree to.

affirm the judgment denying the setting aside of the

\ election without reaching the question whether the :

‘ qualifications upon candidacy. may have affected its

outcome. ene i

I agree with the district court that-the qualifications _

| ‘Were unreasonable and thus will reach the question —

whether the district court was right in refusing to

find that the violation of section 401 may have affected

' the outcome of the election, the statutory basis for

setting the election aside. _. - 22

__ Irrespective: of the provisions of Rule 52(a)

_ F.R.Civ.B that findings of ‘fact shall not be set aside

unless clearly erroneous, I agree with the district

-court’s findings (a) that the only way to attain office.

in the unidn was through membership in. the Assem- ;

bly, that the only, candidates that won such election

were those who ran on Row.A, the administration

. ticket, and that the only way they could run on Row

A was to be selected by the administration, and. (b)

that “dissidents could not have become eligible to. be.

tion was thus sharply curtailed’’.- When it comes to.

'. the question of the findings’ inviolability as not ©

“clearly erroneous”, I can see no escape ftom the -

opposing ‘candidates for office and effective opposi-

_ 30

effect of the rule. We are not here faced with findings

of fact to be drawn from a get. of cold documents. This

is a case where the question-before the distrist court .

was the practical effect of the rules of a union. It

seems to me to be made for the “not clearly erroneous

rule.” The effect of the restrictions does not depend -

entirely on their letter. When Judge Wyatt found -

that dissidents could not have become opposing candi-:

dates for office he was expressing the distillation of

oral- testimony about what happened in a particular

hotel or a particular caucus of waiters or kitchen help-

‘ers or chamber maids. It discourages thorough work

by a judge of first instance for an appellate court

lightly to reject a finding based on the feeling for a

case that the trial judge can get by patient listening

to evidence of what ig behind the written documents.

_I pass to the issue not reached by the majority: the

correctness of Judge Wyatt’s opinion and judgment

in so far as it holds that it cannot be: found that the

violation of Section 401 with respect to qualifications.

of candidates ‘affected the outcome of the election. I -

aecept Judge Wyatt’s excellent. opinion and eontent

myself with simply saying so since the subject does

not seem to me to have sufficient precedential value-to

- warrant repetition of: what he has said. Though the

* majority hold the election good because the qualifica-

tion wag reasonable and I maintain that it was good

because the qualification, though unreasonable, did

not affect it, we reach the same result and’ I concur

in. that result:

- While I thus agree with the majority that as dis-

trict court was right in omitting to grant the Seere-

tary’s prayer. to set aside the election and that the. dis-

trict. court was wrong in awarding an injunction, I

disagree with the majority as to the~ form of our

mandate. Ke i

The statement ‘preceding the majority: opinion re-

cites that the appeals are from a judgment (a) which |

was entered upon a decision * * * (2) holding that,

though a certain by-law of the defendant union lim-

iting candidacy for union office violated section 401(e) |

of the Act, 29 U.S.C. § 481(e), an election in which ©

-° the by-law was applied could not be declared void

under the provisions of §402(c) because plaintiff

failed to show- that the violation of séttion 401 (e)

“may have affected the outcome” of the election and

(b) which enjoined (3) the application of’ the ques-

tioned by-law to future. election. The statement ends:

with the expression. ‘‘ Affirmed as to (1); reversed

as to (2) and (3)’’. ¥ .

The statement thus properly draws ay distinction

between: the decision and the judgment. As said by _

' Judge Leibell in Winkelman v. General Motors Cor-

poration, D.C.S.D.N.Y., 48 F. Supp. 490 (1942), at

-494, ‘““The Federal Rules of Civil’ Procedure make a

clear ‘distinction between the decision (the Findings

of Fact and Conclusions of Law) and the judgment. ””

As appears from Rul: 52(a) F.R.Civ.P. “[T]he court

shall find the facts specially and state separately its

conclusions of law-thereon and direct the-entry of

the. appropriate judgment * * *.” The -statement

_ preceding the opinion in the “instant case, purports,

., however, to affirm and reverse parts of the ‘‘deci-

.Sion”’ of the court below. Though the word Appears

again, this time in the opinion itself, appeal does not

lie from a finding or conclusion as such. Breeding Mo- |

tor Freight Lines v. Reconstruction Finance Corpora-

282-903—67——3 -

tion, 172 F..2d 416, 425, 10 Cir. (1949). * That the

word ‘‘decision” is not ‘oneal here as a conversational

equivalent of “judgment”’ appears from the fact that

‘its use affects the result. If the appealghad been from

~ the judgment, the judgment would ha¥e been reversed

in only one respect instead of being reversed in ‘the

two respects in which the statement purports to re-

versé the decision. This arises from the fact that the

majority of this court agree with the judgment of the

court below that the Secretary’s prayer for a setting

aside of the election should be denied but disagree with

| rd court below as to the decision giving the reason for

the prayer. The district court said that the

ae ae should be denied because, though the candidacy

seis

restriction violated’ the law, it coun not be said that ©

it might have affected the election; ‘while the majority .

ys that the prayer should be denied because the

idacy restriction did not. violate the law and,

therefore, does not reach the question of effect .on the

election. bin ager preceding: the opinion, ‘which

would have effect of affirming the lower court’s

judgment refusing ‘ta grant the prayer,: purports, hew-.

ever, to reverse the lower court’ Ss decision as fo. ‘its

_ reason.

The result of the majority holdings and of my | fore.

going concurring opinion’ should be eXpressed in the’

same direction: ,

_ The judgment is modified so as to provide teats

for dismissal of the complaint mes as so modified,

affirmed.

*The word “decision”, as used in Sections 1291 and 1292 of

“Title 28 of the United States Code defining jurisdiction of the

Court of Appeals, refers to the judgment or. other final sen-

_ tence of the court below. Ex.Parte Tiffany, 252 U.S: 82, (1919) ; "

In re Forstner Chair a, 177 F. 2d 572, 1 Cir. rou

APPENDIX B.”

* : in

| United tates Court of Appeals for the Second Cixcuit

? . “ |

At a Stated Term of the United States Court of

Appedls, in and for the Second Circuit, held at the

United States Courthouse in the City of New York, on »

the twenty-eighth day of July one thousand nine

Pau R. Hays, Hon. Wises Fen: :

hundred and [seven].

Present: “5

BERG, Circuit- Judges; Hon. Epwarp J. Druock, Dis- .

trict. J udge. | | . |

W. Wittarp Wirtz, SECRETARY OF ‘Lazor, UNITED

“States DEPARTMENT OF J#AbOR, PLAINTIFF-APPELLANT

Hore., Moret. anp CLus EmpLoyees Union, Locat 6,

DEFENDANT-APPELLEE

Appeal from the United States District Court for the

Southern. District of New York

This cause came on to’ be heard on the ices

of record from. the United States District Court for

the Southern. District of New York, and was } argued

by counsel.

On consideration whereof, it is now. sont omered,

adjudged, and decreed that the judgment of said Dis- ag

(33)

eae eee fq

trict Court be and it hereby is, modifi in accordance

- with the opinion ‘of this court, and as 80 modified said

~ judgment: be and it hereby is affirmed. :

UA. DANIEL F'usarko,

Clerk.

. By Vincent A. CARLIN, ©

Nigra | Chief Deputy Clerk.

A-true —: Si ierenes

a tex A. DANIEL F'usako,

Clerk.

WS udgment entered September 22, 1967. -

J OHN J. fii Jr.

Clerk.

APPENDIX ¢

United States’ Court of Appeals for the Second Circuit

W. Witiarp Wirtz, Src

RETARY OF Lazor, Unrrep

STaTes DEpartMENT oF L

ABOR, PLAINTIFF-APPELLANT

AND CLuB EMPLOYERS Union, Locar 6,

DEFENDANT-APPELLER

Horer, Moret

Petition for Rehearing

Rosert M. Morcanrnav, United States Attor-

_ hey for the Southern District of New York,

New York, N.Y., for Plaintiff-appellant. |

Petition denied.

‘

’ Paut R. Hays,

WILFRED FEINBERG,

. OS.CII.

I dissent: an :

7 , ey Epwarp J. Dimocx, : .

i | U.S.D.T.

SEPTEMBER 26, 1967, _—

(35)

Ciel as ae . -

. '

| United States Court of Appeals for the Second Circuit -

OW. Witarp Wirtz, Secretary or Lasor, UNITED

-- States DEPARTMENT OF LABOR, PLAINTIFF-APPELLANT

; v.

Horet, Moret anv CLuB EMPLOYEES Untos, Locat, 6, |

. DEFENDANT-APTELLES.

Petition for Rehearing In Banc

-Rosert M. MorcantHav, United States Attor- |

ney for the Southern District of New York,

New York, N.Y:, for plaintiff-appellant.

No active circuit judge having requested that a vote ©

be taken on -the* suggestion that the case be reheard

‘in bane, the same stands denied.

io : Chief Judge.

‘ SEPTEMBER 20, 1967. |

APPENDIX-D

United States District Court for the Southern District

of New York |

66 Civ. 626

W. Winarp Wirtz, SEcReTaRY oF Lapor, UNITED

States DEPARTMENT OF LaBOR, PLAINTIFF |

r) | ow. ss

Horer, More, anp Crus Emp.oyres Union, Loca 6,

ae. DEFENDANT 7

OPINION

- McLean, D.J.: This is ‘an action by the Secretary.

_ of Labor, pursuant to 29 U.S.C. § 482(b) for a judg-

ment declaring an election of officers of defendant

_ union held‘on May 19, 1965 to be null and void. De-

fendant moves (1) to dismiss the action for failure

to join the union officers as defendants, and (2) in

the alternative, to strike paragraphs 8(c), 8(d) and 9 .

of the complaint. . . ’ |

The ground: of the first motion is that the officers

elected at the election in question are indispensable ©

' parties, because. their rights will be affected by the

_ determination made in this action. It seems clear that -

the statute does not contemplate their -joinder, for it

provides that the action shall be brought “against the

labor organization as an entity.”” 29 U.S.C. §482(b).

But defendant says that the statute deprives the union

(37) : :

officers of due process of law and is therefore uncon- —

stitutional.

This same contention, phrased in very much the

same way, has recently been rejected in Wirtz v.

Teamsters Union Local No. 78, 53 L.C. 1115288 (N.D.

Ohio, E.D., May 11, 1966). The court’s opinion, re-

fers to two unreported decisions to the samé effect,

one of which i is a decision by J udge Anderson in the

District Court in Wirtz v. Local 191, International e

Brotherhood of Teamsters, Civ. No. 9776 (D. Conn..

1964), deny ing a.motion by union officers for leave to

intervene in an action brought by the. Seer etary under

_ this statute.

The subject is thoroughly treated in Wirtz’ v.

Teamsters Union. Local No. 73, supra, and I see no :

- need to repeat here what: was said there. The court’s

conclusion seems to me to be correct. No case to the 3

contrary: has been found. I will follow the Local No.

73 decision. Defendants i motion to dismiss for failure

‘to join indispensable parties is therefore denied.

Defendant’s altérnative motion raises a different

question. The paragraphs of the complaint which de-

fendant seeks to strike relate to alleged violations of

_law about which apparently no unién member com- °

plained, either to the union or to the Secretary. The

- moving affidavit establishes, ‘without contradiction

from plaintiff, that the sole ground _ which any

union member’ protested to the union abbdut the elec-

.tion related to Article IV, Section 7A(2) of the

- union’s bylaws, which provides that to be eligible for

nomination as an officer,'a candidate must be eitier

a present or former member of the Executive Board

or, the Assembly, or a former member of the Shop

Delegates’ Council, now defunct. The protesting merm-

bers considered. this bylaw too restrictive. Concededly ©

they exhausted ‘their remedies within the union, with-

out success, as far as this objection was concerned.

Although the complaint in the present action does not

specify the objection contained in the complaint of

the union members to the Secretary, plaintiff does

not contend that it was anything other than this same

objection to the bylaw provision. In his complaint in.

this action, however, the Secretary attacks the elec-

tion; not only upon this ground, but also upon addi-

tional’ grounds which apparently occurred to him in

the course of his investigation of the tinion members’

complaint, i.e., that the union failed to give adequate

and timely notice of the composition of its election

districts, that the members’ right to support and vote

for the candidate of their choice was ‘‘subject to im-

‘proper interference”? and that certain offices of the

union have been filled ‘‘in a manner other than by

election.’’ This last allegation, it would seem, does not

even relate to the election of May 19, 1965 which the -

Secretary seeks to overturn. Rather, it appears to be

a complaint that there was no election at ad as far

. as certain offices are concerned. | a

' 29 U.S.C. § 482(a) provides that:

**<(a) A member of a- labor organization— ae

**¢1) who has. exhausted the remedies avail-

able under the constitution and bylaws of such

organization and of any parent body * * *-

may file a complaint with ‘the Seeretary ey

alleging the violation of any provision of sec-

tion 481 of this.title *.* *.” ° .

Subsection (b) provides:

“‘The Secretary shall investigate such com-

_ plaint and, if he finds probable cause to believe

that a violation of this subchapter has occurred

- ‘and has not been remedied, he shall * * * bring

40 a

a civil ‘faction * * * to set aside the invalid :

election * * * .”’

- Pertinent legislative history of this statute is re-

viewed in Wirtz v. Eocal Union No. 125, International.

Hod Carriers’, etc., 231 F. Supp. 590 (N.D. Ohio,

E.D. 1964). It indicates that in enacting this séction,

“Congress had in mind the desirability of preserving

independent self-government of the union as far as

was compatible with the public, interest in free and

democratic union elections. It intended that the union

should have an opportunity to regulate its own affairs .

_before the Secretary could ask a court to regulate its

affairs for it. As the court said in .Wirtz. v.. Local

Union 169, International Hod Careany, etc., 246 F.

Supp. 741, 752 (D. Nev. 1965) : ,

“The act. should be construed to mean’ that

the Secretary has, on complaint. of a union .

member, the right ‘to investigate all aspects: of

the contested election and to base a complaint

to the Court on every issue which the-defendant

‘ union had a fair opportunity to considér and

resolve.in connection with any member’s appeal

to the General Executive Board of the union.”’

No doubt it would be unreasonable, as the court in

Wirtz v. Local 169, supra, also recognized, to insist

that, the Secretary’s action should be limited to-the

particular greund asserted by the particular union

member who complajned to him. That member might

be too inarticulate to express the complaints of his

fellows. He might not even know of all of them. ha

- it is not too strict to limit the Secretary’s attack ye

an election to those grounds. about which some nlem-

ber, not necessarily the. one who eventually complained

—s

‘is frustrated.

to the Secretary, has previously complained to -the

union. If the Secretary «is free to attack an election

because of mattérs never brought to the attention

of the union, and which the union never had an op-

portunity. to correct, as the Secretary seeks to-do here,

. the congressional intent clearly manifest in this statute

The cases so hold.

Wirtz v. Tocal Union 125, supra.

Wirtz v. Local U nton 169, supra. }

Wirtz v. Local Unions No. 406, 406-A, 406-B,

1.U.0.E., 53 LC. 111,297 (E.D. La. May 19, -_ E

1966). F . 7 : . e-

Wirtz v. Local U nions, No. 9, 9-A and 9-B,

T.U.0.E:, 51 LO. 119,579 (D. Colo. 1965).

See Wirtz v. Local 191, International Brother- ae

hood of Teamsters, etc., 321 F. 2d 445, 448 +

(2d Cir. 1963). Age ae se : :

_It follows that paragraphs 8 (c), 8(d) and 9 have no

' proper place’ in this complaint. Defendant’s motion to

strike them is granted. .

So ordered. . — . : ;

.{ , -Epwarp C. McLzan,

(er ee U.S.D.J.

Daten: Juy 15, 1966

APPENDIX E

é pode,

United States District Cont for the Southern

- District of New York ~

66 Civ. 626° _

W. Witiarp ‘Wirtz, SECRETARY OF LaBor, UNITED

States DEPARTMENT OF LABOR, PLAINTIFF

ange :

Hor Monee AN CLuB EMPLOYEES Union, ‘Locat 6,

: \ EFENDANT

‘Wyatt, District Judge: The principal question here

is whether prior service as ‘a Union, officer, on a‘ Union

Board, or in the Union Assembly, .is a ‘‘reasonable’”’

qualification, under the Landrum-Griffin Act, for

eandidacy for office in the/ defendant Union.

Section 401(e) of the Act (29 U.S.C. § 481(e)),

which may also be cited as the Labor-Management

Reporting and. Disclosure Act of 1959, provides that:

insany union election required by the Act ‘‘every mem- "_

- ber in good standing shall be eligible to be.a candidate:

-and to hold office (subject to * * * reasonable: -

fications uniformly imposed)”. _

_ This action, tried to the Souzt without a jury,

‘was brought by the Secretary of Labor to declare

void, ete. an election of officers of defendant Union

(‘the Union” or ‘‘Local 6’’) held on May 19, 1965.

The .action is authorized by Section 402 of the fase

(29 U. 8. C.§ — ‘ | !

(42)

a“ -

Gigpesacenemeres pai

ble” under Section 401(e) of the Act. ts

It is undisputed that the Union is a “labor organi-

zation’’ subject to Section 401 of the Act, in that

‘it is engaged in an industry affecting commerce (Act ©

§ 3(i), 29 U.S.C. § 402(i)). If is also undisputed that

members of the. Union, having invoked sige in-

ternal union remedies without final decision, ef¢., prop-

erly filed a complaint with the Secretary and that the

thisaction, | |

The Court has jurisdiction under Section 402 of the

eae : :

’ If the Union did violate the Aé¢ as charged and if

this violation ““may have affected the outcome” of

the election, the Court must then declare the election

. Void and direct a new election ‘(29.U.S.(. § 482(¢)).

. - The prior offiee. holding qualification of the by-laws .

. Jgfound not to have een “reasonable”’ and its enforce-

>“ Ment in the 1965 e ection is found to have been a

~ .. violation of the Act. oe See -

It is not found that this violation ‘ ‘May have: af-

fected the outcome” of the eleetion.

_. The 1965 ‘election of . officers cannot be declared -

void, therefore, but the Secretary may -properly be |

| given: relief in respect~of future such elections,

: . ,

44 ' ° -

A. DESCRIPTION OF THE: UNION ; ELECTIONS BEFORE THAT ©

| IN 1965 )

~The Union bin about 1938 with a successful effort

‘to organize workers in ‘the hotels a go in New

York City; it was in an ee period until

about 1946.

The Union has been at all-times affiliated with the -

Hotel: ‘and Restaurant. Employees and Bartenders In-

ternational Wnion, A.F.L.-C.1.0. (the ‘Hotel, etc.

International’’). It is the largest of the'ocals affiliated

with the Hotel, etc. International.

From the early days of the Union to 1951, its “high-

est legislative body’’ was the “Shop Delegates Coun-

cil”. This was.made up (a) of delegates elected from

each department of each hotel and club, (b) of mem-

bers of “department boards’’ and (c) of the general

officers. In order to be eligible as a candidate for dele-

gate to the Shop Delegates Council, a person must

have been employed at the hotel or club for at least

six months and must have ‘been ‘a ‘member of the

- Union for at least one year. ‘

After a crisis in the affairs of the Union, an election

"of delegates to a convention was held in May 1951 and

an. election of .officers was held in June 1951. There.

were rival slates in both elections. Voting maé¢hines

were used, as has been the practice in all later elec-

tions of the Union. The candidates for délegates of °

the United Union Organization, running on Row A

(the top row) were elected by a wide margin. The

candidates for officers of the Administration Ticket, )

. a

ap |

running on Row A, were elected by a vote of about

7,300 to about 3,300 for the nearest opposition slate.

‘. It has been the practice in all Local 6 elections that

the administration slate is given the Row A position

on the voting machines. — *. ae es

New by-laws were adopted at a special ‘convention

held in September .1951, and from that time-down

through the 1965 election in suit, the structure of. the

Union has been substantially the same. ;

By force of the 1951 by-laws, the Shop Delegates

Council was abolished and the “Assembly” was sat

up as the “highest legislative body” in its place. The

method of electing delegates to the Assembly was

changed from that employed for the Shop Delegates -

Council. Doubtiess these changes weré to reduce the

governing body to a less numerous and thus to a more

- efficient group. | |

- The Union is organized by departments and by dis-

tricts. .

The departments are made up of members in each

Separate craft or broad category of work, except that

all club employees are in the club department regard-

less ofthe work ghey do. There are five departments

of hotel employees: Banquet, Bar, Dining ‘Room,

Housekeeping and Kitchen. 3

. The districts for hotel employees are geographical

areas determined by the most effective and convenient

grouping of hotels far administrative purposes. There

are six numbered districts for hotel employees. All

club employees are in a single district. Bias

The basic element in the Union is the unit or shop .

in the hotel or club where the-members of a particular

Nass

46 | Q

. Rs. 5 . .

craft work. Each dining room or kitchen, for example,

is a separate ‘unit.. Each unit elects a “department

. delegate’? who ‘cooperates with officers of the Union

in the handling of grievances and other matters af-

fecting»members in his unit. The term “department

delegate’? is simply another name for shop steward.

The department delegates ina district, together with

the distirct officers, make up the District Council.

The organizational novelty of Local 6 is that, while

each craft has its own unique traditions, interests and

problems, Local 6 includes several different crafts and

negotiates with employers for them all. By means of

by-laws and otherwise, however, care is taken thas each

craft ( department) in Local 6 has proportional repre-

sentatio in: the Assembly and in other Union activ-

ities. e is similarly taken that the employees in

any one hotel do not acquire a dominant influence.

Kach district has a vice-president and from one to °

four business agents. These are paid and fuli time

officers and are elected by the members in the district

(befare March 1959 voting had been by departments).

There are four general officers of.the Union: Presi-

dent, Secretary-Treasurer, General Organizer, and

Recording Secretary. The general officers are.paid, full

time officers and are elected by all members in all

districts.

The delegates to’ the’ Assembly are elected by dis-

tricts but within a district delegates may be elected

' from “election districts” established by the Assembly

(before March 1959 voting had been. by departments).

*In general, one delegate is elected for each 75 mem-

bers 1 in the district; there are by-law sina to see,

| 47,

_ that delegates are elected from the various départ-

ments in proportion to department’ membership and

not too many from any one hotel. The Assembly meets

at least quarterly and each year must meet for a full.

day. The general officers, the vice-presidents, and the °

business agents are automat

Assembly.

ically members of the .

There is an Executive Board (which meets monthly)

made up of the principal officers and of members °

elected by the Assembly on the basis of one Executive.

Board member from each department for each 500

members of that department.

s‘* *

The term of office of officers and members’ of the

Assembly was two years until a revision of the by-laws

in March 1959; since March 1959, the term has been

three years.

_- From. September 1951 until at least October 15,

1963, the by-laws of the Union required that a candi-

date for office must -have. been a member in good

_ ‘Standing for two ‘years and in addition “must be a

member of either the. Assembly or the -Execytive

‘ Board, or else, at some time in the past, have served

at least one term on either the Executive Board, the

Assembly; or the old Shop Delegates Council’.

It is suggested for the Union that ata meeting of

the Assembly on October 15, 1963, the quoted by-law

‘provision was amended so as to change the word

“term”? to the word “year’’. The evidence is not con-

vineing that such amendntent’was in ‘fact adopted.

The difference between “term”? and “year’’ is not sig-

nificant for this decision, however, and it will be as-

282-903—67—_4 ° ,

sumed that beforé the 1965 election the word “term”

- had been changed to “year’’.

While this prior office qualification had-to he satis-

fied by candidates for Union office at an election, it

' s Was not applicable to appointed officers. If an office ~:

_ becomes vacant, a successor can be appointed by the

~-general efficers subject to approval by the Executive

Board and the Assembly. Moreover, the Assembly may

appoint business agents (who are paid. officers) addi- ©

tional to those elected. Several members who had never

held office in the Union were. in fact appointed as

business agents.

Candidates for delegate to the Assembly. aust have

been members in good standing 1 in the ‘Union for one

year before nomination. ~

The 1951 by-laws provided that 2 an elections: of offi-

cers should take. place in May 1954 and way two -

years thereafter.

An election of dieu, members of -the Executive

Board and members of Department Committees took

place on May 19,°1954, ‘The incumbent administration

ran a full slate for.4 general offices, 23 department of-

fices, 59 members of the Executive Board, and 70

members of the Department Committees. There were

no opposition nominees for general. offices and. but 10

opopsition nominees for 9 of the 23 department offices.

There were 19 opposition nominees for 16 of: the 59

places as members of the Executive Board. There were .

11 opposition nominees. for 11 of the 70 places as mem-

bers of Department Committees. The administration .

slate won all contests by substantial margins except in _

one department where the margin, was smaller. the

. .

orks

- 7 49 iow: =

vote in the several contests for department offices was _

as follows: | >

Administration nominees Opposition nominee

_ (elected) 1981 ae — 0

_ * ; * * * . ; +

elec 15. _ 712 oe

. -H *.. « ” ey ak - +

(elected) . 2276 * 674

-* (elected) 2270 . 691

(elected) 2238 - 693 .

(elected) . 29216 ine 672

ae =—. FF

es. * * ey *

(elected) 4541 58

(elected) 4565 | ;

' (elected) = 4523.

(elected) ~ 4534 |

ro. * *, ae * *

(elected) 666 |. 567

oS . * - E

- (elected) 684 . 522

There was an élection of officers, members of the -

Executive Board, and members of Department Com-

mittees, called to be held on May 16, 1956. The admin-

istration nominated a f Slate for 4 general offices,

23 department offices, 59 members of the Executive.

Board, and. 60 members of the Department Commit- ;

tees.. There were no opposition nominees for any of- ~

fices. In one department, there were 4 opposition

_ nominees for 3 places as members of the Executive

. ‘Board and 7 opposition nominees for 7 of the 10 places -

* . as members of the Department Committee. There was *

50 : “ - .

no voting in 1956 except in the one department where

there were some opposition nominees for. the Execu- —

tive Board and the Department Committee. In t .

_ department, the full administration slate for the

_ partment appeared on the voting machine even though:

there was no contest for any of the offices. The admin-

istration slate won by a substantial margin. The ad- -

ministration nominees in all departments were de-*-

clared elected. . al

For some reason not appearing in the record, there

~ was no election of officers in 1958, the end of the

two year term. Presumably the incumbent officers con-

tinued to act. ~

At some time before March 1959, the by-laws were

~- amended to provide that there should be an election of.

officers and members of the Assembly in May 1959 -

and every third year thereafter, and that the terms .

ef office of the officers and members of Assembly

should be three years. It was also provided that voting

should be by districts rather than by departments.

There were four geographical districts, a club district

and. two departments treated as districts.

There was an election on May 21, 1959 of officers

and of delegates to the Assembly, ail for a three year

term. The administration nominated a full slate for

4 general officers, 21 district-officers, and 405 delegates

to the Assembly. There were no opposition nominees —

for general offices and but 4 opposition nominees for .

3 of the 21 district offices. There were 15 opposition

nominees. for 15 of the 408-places as delegates to the

Assembly. The administration won all contests by sub-

4 .

we,

—

stantial margins. The vote.in the several contests for”

, district offices was as follows: eee eee

Administration : Opposition -

nominees , ee ver " nominees

(elected) § 1865 ° api «

(elected) _) 1862 Ss ae

* Ee f ~* a ; * 2 .

(elected) Sie 205

eh e ee. *

(elected)“~ 757 = -* ang

, 47

There was an election on May 23, 1962 of officers

and of delegates to the Assembly, all for a three year

term. The administration: nominated a full slate for 4.

general offices, 25 district offices, and 399 delegates

to the Assembly. There were no opposition ‘nominees’

for any of the offices. There were 6 opposition nomi-

nees for 6 of the 399,places as delegates to- the As-.

‘sembly. The entire administration. slate was elected; -

' the opposition nominees for the Assembly were de-

feated by. wide margins. ae

The by-laws were further amended on October 15,

1963. As a result, the Union was divided into geo-

graphical districts.and the Club District; each district

was to have its own offices: a vice-president ‘and one

or more business agents ; ho officers were to be elected

by any department: It was provided that the next. .

election should be in May 1965. er

The membegship -in the Union since 1951 has re-

‘mained at about the same number. The exact figures,

‘ mo

shel RY

52 :

i as ber of votes cast in the elections (including

~ the 1965 election in suit), are as follows:

Election year ae Membership Votes cast

ee ae 26, 630. 12, 705

NEA tatink hii dres di iain endcaairnae Mee en 25, 678 14, 618

Sa cchiestncelinnina ah eascihedtnaal dtc Se i ah a 26, 974 11, 214

ERR EEE PNT ES YALE Teen AA EON RR 26, 340 7,131

eS 27, 354 11,254

- While the total number eee in the Union

‘is thus a static figure, there seems to be a high turn-

over of individual members. This is shown by the

fact that from August 1, 1963 +0 July 31, 1965 there .

were 5,737 new members joining the Union, or. an av-

erage of about 240 new members each month. ‘Apply-

ing this figure to the 36 months between the May 1962

election and the May 1965 election, it would appear

. that 8, 640 new members joined the Union ‘in that

period, ! ‘or roughly a-third of the membership, It is

indicated that there is a turnover of upwards of 10%

of the Union membership each year.

The exact number of Union members who were olin

ble to run for Union office in May 1965. cannot

determined, principally because there are few records

of the old Shop Delegates Council which, as already

' noted, was abolished in 1951. It was impossible for

the Union to apply its eligibility rule with accuracy

because there was no way to verify whether a par-

ticular candidate had.been a member of the Shop Dele- ._

gates Council. There is some evidence that if an iden- —

tification card or some similar certificate in respect of

the Shop Delegates Council was produced by a candi-

_ date, this was: accepted to establish eligibility. . The

Union produced at trial a list of names taken from

--. its reeords which showed that at least 1,725 members

were eligible to run for ‘office in the May 1965 elec-

meets Sie | |

4 ose . -.

’

‘

; 53

tion. Of these 1,725 members, 1,182 were eligible. be--

cause they had been members. of. the Shop Delegates

Council before 1951; the remaining 543 were eligible

because they had been members of the Assembly at |

some time since 1951. | nea | :

_._ In practice it was not possible to be elected to thé

Assembly except with the blessing of the Administra-

tion Party conferred by selection to run for the As-

sembly ori Row A. This-was doubtless in large part*

- because there was never a full skate of opposing candi-

dates for the Assembly, The candidates to run on Row

A for the Assembly were éelected by the incumbent °

group of officers and were put in nomination after |

_cauguses of invited members, attended by officers. It

was only natural that&gandidates selected to run on

Row A for the Assembl® would be supporters of the |<

administration. All candidates on Row A were pledged.

_ to support each other: Dissidents could not be elected

_ to the Assembly. we : “a

B. THE ELECTION OF MAY 19, 1965

An election was called to be held on Mag 19, 1965.

_ At this election, there were to be electedgfrom the

Union as a whole four general officers and 10 deéle-

_ gates to the Conyention of*the International. In the

_ T districts, there were to be’ elected: a total of 27.

district officers (7 vice-presidents-and 20 business -

agents) and 372 delegates to the Assembly. |

In anticipation of the 1965 election, an opposition |

group was. organized calling itself the “Membership

Party’’. . Milacti ie

The Assembly met on April 6 for nominations for ‘.

the 4 general offices and for 10 delegates to the Inter-

national Convention. Nominations were permitted to -

be made by any member. Two full rival slates~were

nominated for these 14 positions, one being the ad-

Daun 4

54, \

ministration slate (made up principally of-those who

were already serving-as paid officers), and the other

that of the opposition Membership Party.

- There were meetingMon April 13 in’ ‘each district

for nominations for the 27 district offices\and for the

372 delegates to the Assembly. A full slate was nomi-

* nated for the administration to run for the 27 district © .

- offices and for the 372 places for delegates to the

Assembly. In all districts except the Club District,

there were opposition candidates nominated for vice-

president; in five districts, there were opposition can: . ae

didates nominated for business agent, hut not for all +

the. business agent positions to be elected. For the 27° -

district offices to be elected, there were 14 opposition

nominees for-16 offices (two of the Membership Party.

nominees were each nominated for two separate of-. X

fices). Of the-14 opposition nominees for district office,

one was an independent not affiliated with the Member-

ship.-Party. For the 372 Assembly delegates to be

elécted, there were 5 opposition nominees, 2 of the

Membership Party and 3 running as independents.

_ Elections in the Union are conducted under rules -

and regulations establishéd by an “Election and Ob-

jections Committee” designated by the Assembly. The

Committee also rules on the eligibility of candidates

nominated to run for office or for delegate to the

Assembly. . :

The Comintttee ruled indligible two of the Mem- .

bership Party nominees for the four general offices..

The nominee for Secretary-Treasurer was ruled in-

eligible because he had not held prior. office. The nomi-

nee for Recording-Secretary was ruled ineligible be- *

cause he had not been a.member of the Union for the

required period of two years.

he Committee ruled ineligible two of the Member-

‘ship Party nominees hin iaiaats to the International

55 iets

‘Convention, apparently because they had ‘not been 7

‘members of. the Hotel, ete. International in continuous

good standing during the period since April 18, 1964.

Detefates to such Convention must. have been mem: ._

bers of the Hotel, ete. International for at least two

years and of. the local union at least sixty days before

the Convention.”The Convention for which delegates .

were to be elected by Local 6 on May 19,1965 was to

meet on April 18, 1966. peer re

The Committee ruled ineligiblé, because they ‘had

not held prior office, five Membership Party nominees

for vice-president of districts (one was anominee for

vice-president in two districts) and three Member-

‘ship Party nominees for business agent of districts

(one was.also a nominee for vice-president). Eight

persons were thus ruled ineligible for district office

' because they had not held prior office.

The Committee ruled ineligible, because they lacked

the required period of membership, three Membership

Party nominees, one for vicegpresident and two for

business agent. v 3

No nominees for the Assembly, whether of the Mem- _

bership Party or independent, were ruled ineligible:

There is no suggestion that the Committee incor-

rectly applied the qualification provisions of the by-

laws to the facts as they i. in respect of the

Opposition nominees, -

. The 1965 election, in acc§rd with settled practice,

was: conducted with voting machines. The nominees

‘forthe four general offices and for the ten delegates

to the International Convention appeared 6n the ma-

chines in all the districts. The ful] administration slate

_ was on Row A. The two nominees of the Member-

‘ship Party for general office (President and General

Organizer) and its eight nominees for the ten dele-

° -

core i , ic

SG . ‘i .

gates to the International Convention were on Row

B, just below Row A.

~."There were thus two blank spaces on thew B in the

four columns for general offices (no. Membership

Party. nominees for Secretary-Treasurer ‘and Record-

ing Secretary) ,and:two blank spaces in the ten

‘columns for delegates to the International Convention.

Had the prior: office by-law qualification not been in

| foree, there would ‘have been a Membership Party

nominee. for — on Row B in all dis-

tricts.

YIn each distriét, fhe nominees for district offices and -

for the Assembly appeared on the machines in an

extension to the righ}0T the rows in which were thé

nominees for general offices; then in a further exten--

sion of the row to the right appeared the nominees

for delegates to the International Convention. The full

administration slate for the district was on Row A. .

According to normal voting” machine procedure, it

was possible to pull down one lever to vote for all the

nominees of-a particular slate on one row.

In. four districts (1, 3, 5, 6), there were no opposi- -

tion nominees on the ‘voting machines for the 14 dis- .

trict: offices or for the 195 Assembly delegates to be

elected iri. those districts..Had the prior office by-law —

- - qualification not been in force, there would have been

6 Membership Party nominees on the voting machines

for the’ 14 district offices to be. glected in those dis-

tricts. ran

In the Club_ District, there was one Membership

’ Party nominee on the voting machines for Assembly

delegate, there havin n 24 delegates to be elected

in the election district of that nominee. This Member-

ship Party nominee appeared on Row B). Had the -

- prior office by-law: qualification not been in force, ‘the

os,

situation in that district would have ‘een the same.

§ 87 Ties ge

e In one district ,(2),; there was one Membérship - .

‘Party nominee for one of the three business agents to

be elected. This nominee appeared on Row B. There

was also an.independent opposition nominee for one

of the three business agents to be elected and\two

independent nominees for two of the 29 Assembly

. delegates to be elected in their election district. The

independent nominees, appeared on a third row desig-

nated “Independent” and just below Raw B. Had the

prior pffice by-law qualification not been in force, there

would have been two Membership Party nominees for

two of the four district Offices to be elected. . :

In the remaining district (4), there was one Mem-

bership Party nominee for one of the three business

agents to be electéd and one Membership Party nomi-

nee for one of 28 Assembly delegates to be elected.

These nominees appeared on Row B. There was one

independent opposition nominee for one of the 28

Assembly .deiegates. The independent. nominee ap-

peared on a third row designated *““Independent’’ and

just below Row B. Had the prior office by-law quali-

fication not~been in force, there would have been two +

‘Membership Party ndminees.for 2 of the 4 district. °

Offices t&\be elected (two Membership Party nominees

were eack nominated for two’ different offices ; it is.

~~ assumed that they could not have properly run for

both, even if eligible for either).

In the May 19, 1965 eléction, 11,254 members cast _

votes: (not all'voted for every position to be filled) out

of 27,354 members eligible to vote. ; :

So far as appears from_this recard, the voting was

fairly .and honestly conducted and the votes were.

accurately counted. : ‘ |

The result of the voting was the election of all Bow *

. A administration slate candidates. 3 :

‘

«58

The vote in the two contests for general offices was

as follows:

Pe at M embership Party:

Adnitistiction. nominees nominees

(elected) § 9,314 - 1,847

‘ (elected) 9,216 1,299

‘The lowest vote cast for an administration nominee

for delegate to the International Convention was

8,615; the highest vote cast. for a Membership Party

nominee was 1,154.

Two nominees for Union office of the Membership

Party who were ruled ineligible because’ they had not

held prior office were ruled eligible to run for delegate

to the International. Convention and did appear as

candidates for delegate on the voting machines in all

districts. They received 1,151 and- 1,145 votes, respec-

tively ; as noted above, the lowest vote for an adminis-

tration nominee was 8,615.

The vote in the contests for business agents, where

three were to be elected in each of two districts, was

as follows:

Administration Membership Independent ; -

Nominees — Party Nominees Nominees

lected) 1,188: we 838 70

(elected) 1,206

(elected) 1,184

.e° ” . ° *

(elected) 1,924 262 7

(elected) 1,942

(elected) 1,903

In the contest for one place as Assembly delegate

in the Club District, the lowest vote cast for an ad-

ministration nominee for Assembly delegate was 571;

the vote for the Membership’ Party nominee was 58. .

In District 2, the lowest vote for the 29 administra-

-tion nominees for Assembly delegate was 568; the

eee

89.

two independent. nominees received 40 and 41 votes, - ;

respectively, ° ‘ —

Tn District 4, the lowest vote for the 28 administra-

tion nominees for ‘Assembly delegate was 540; the

_ Membership Party nominee received 71 votes and the .

- independent nominee 14. ™

= C. EPILOGUE |

The officers:and members of the Assembly elected

on May 19, 1965 have been acting as such since that

date and have already served almost. two years of .

their three year term.

. It appears that during the pendency of this action

and in December 1966, the by-laws of the Union: were

_ Substantially changed in respect: of the prior office

qualification. As then amended, the qualification to

.. Tun for Union office is that the candidate ‘“‘must have

served as a member of either the Assembly or the —

Executive Board or he must have. been a department

delegate, or in the alternative, he must have been a eat

member of the Union for five (5) years”,

Evidence was introduced for the Secretary to show

to what extent other unions in: the country required

prior office holding to be eligible for union office. This

kind of evidence has been admitted and considered in |

determining whether particular qualifications were

“reasonable”’ undér Section 401(e) of the Act. Wirtz

v. Local Unions No. 406, etc., 254 F. Supp. 962, 965

(E.D. La. 1966) ; Wirtz v. Local 3A ete., 242 F. Supp.

. 631 (S.D.N-Y. 1965); remanded on other grounds, 366

» FB. 2d 438 (2d Cir. 1966) ; Goldberg v. Amarillo Gen- -

eral Drivers, etc., 214 F. Supp. 74, 77-8 (N.D. Tex.

1963). | Pi eticn |

There were 72 major national ‘and imternational

unions, that is, unions having more than 40,000 mem-.

-bers. Of these, only one required prior office holding

as a qualification for candidacy for local union, office,.

The Hotel, ete. International, with which Local 6 is

affiliated, is not that one and has no.such requirement. °

There were 23 national and international unions

which have between. 20, 000 and. 40,000 members. None

of these required prior office holding as a qualification _ |

| . for candidacy for national.or international: union of-

; - fice. The Seerétary argués that this*is appropriate for |

consideration because the membership of Local 6 is ;

1. “about mid-way between 20,000 anid 40,000; for Local :

: he 6, it is pointed out that Local 6 is not a national union

4 and that the national union with which it is affiliated.

3 - has‘a> membership of 444,000.

There were 485 local unions affiliated with the Hotel,

ete. International. The average number of members of

the locals was 899. There were 125 locals having more

than 900 members, including, of course, Local 6. Of ~~

- these 125 locals, 93 (or about 75%) had.no réquire-

‘ment of ‘prior’ office holding as a qualification for

candidacy for local union office. .

There were 66 local unions of all kinds which had

total receipts 1 in 1964 of more than one million dollars; 3

‘Local 6 in that year had receipts of more than two

i million dollars. Of these 66 local unions, only seven :

. ‘ required prior officé holding as a qualification for

. » eandidaey for:local union office. Local 6 was one of

_ the seven, and the other-six were all affiliated ‘with the

one national or international union which requires

prior office holding as a qualification for candidacy . .

for local union office. ..

\ : Jit “ey {

The prior én eligibility requirement. of Local 6° a

was not “reasonable’” within the meaning of Section

_401(e) but was contrary to the basic purposes of the.

| ae

Act. It has been noted that the requirement dates from

at least 1951; the Aet did not become effective until’

> eae | aie. -lneee :

One of the chief aims-of the Act was ta secute “free- .

and democratic union elections” just as in elections in

the community at large. S. Rep. No. 187, 86th Cong., .

Ast Sess., 20, also 5-6 (1959). Congress. therefore pro-.

vided specifically and affirmatively that “every mem-

ber in good standing shall be eligible to be a candi- “

- date’’ and the only relevant exception was for “peason-

able qualifications’’.‘ The burden of. showing that a

qualification’ is “reasonable” is a very heavy one.

_ Any requirement of prior office holding to be eligi-

ble for union: office would be, unreasonable. The only

justification for such a requirement is, as here urged

for Logeal, 6, that the magnitude and complexity of -

union problems requires a certain minimum of expe-

rience in union affairs. But this is on the premise that

,the membership at large cannot be trusted-properly to

evaluate. union experience in casting election ballots.

The philosophy of a free democra le society, expressed

in the Act, does not tolerate sucha premise. The

philosophy adopted by Congress in the Act is well ex-

pressed in a motto used by a newspaper and said to

have -been inspired by, or translated from Dante.

(Divine Comedy, Purgatory, canto XXTT, lines 67-.

69): “Give light and the people will find their own

way”’,

The members of a union must-have’ a free choice

to give such weight to experience, inexperience, or to

_ other fa¢tors as they see: fit. Such is the.choice when

voting parm and Vice-President of the United

States. Candidates: for these high offices are not re-

quired to have any particular prior experience. The

voters weigh the prior experience of the candidates,

-or lack thereof, in aking their choice. . bes

isin Sos ok « »

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DUE Ad pA Se aN all haa te 8 vs Tain ihe oA NSS neat mr 4

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62* |

The evidence shows that over 90%. of large lecal

unions of all kinds*have no prior office requirement _

‘and that about 75% of the larger locals which are

affiliated, like Loeal 6, with the Hotel, ete. Interna--

tional have no such requirement.

In any event, ‘the particular by-lax requirement of

Local 6 was not in its context ‘ ‘reasonable”’.

Accepting’ the Union., figures, the effect in 1965 of

the prior* office qualification was to make ineligible

‘for office about 93% of the membership. While 1725,

members (or about 7% of the total) were eligible,

1182 of this number (or nearly 70% of the eligibles)

satisfied the prior office requirement. by service on ‘the

: Shop Delegatés Council, a body which was .abolished

in 1951, fourteen years before the election. A former

| meniber of the Shop Delegates Council ‘who had not

held office for fourteen years would thus be eligible

whereas an active department delegate for ten years

would not be eligible. :

Since 1951 the only way new meinbers eould become

eligible for office was to win election to the Assembly.

>. But in this period the only candidates which won: such

‘ eligible to run thereafter for any union office. This -.

election were those who ran on’ Row A, the adminis-

tration ticket. The only way to.run on Row’: ‘A’ was to-

be selected by the administration, Thus, dissidents

could not become. eligible to be opposing candidates

for office and: effective ck Insenn was ~_ ee

curtailed.

Finally, the need for prior office experience is not

shown. In this connection, it is significant’ that an

officer may ,be appointed who has no prior Office ex-

perience and who this does not satisfy the eligibility

requirement for election to that office. But once such

an officer is appointed, he autematically becomes a

member of the Assembly. and” immediately becomes |

63.

~ t 5 ‘ x

enables the incumbent group to qualify members for

. elective’ office by a procedure not available to ~

dissidents. . er ae on

Any ‘requirement of prior office holding to run for \

* union office: is bound to favor the incumbents to the

prejudice of wholly free and o6pé& elections which\it

was the purpose of Congress to encourage.

It cannot be .found that the violation of section |

401(e) ‘“‘may have/affected the outcome’’ of the 1965

election. € 3 :

Decision of this issue is governed by the teaching

‘of -Wirtz v. Local Unions 410, etc., 366 F. 2d 438, .

442-43 (2d Cir. 1966). It may be possible to read

that opinion (at 443) as declaring that whenever

there has been an “exclusion of willing candidatés

from the ballots’’, this is sufficient without more to

compel a finding thatthe exclusion “‘may have affected

the outcome’’. In. an earlier decision by a District

Court, such seems to have* been assumed. Wirtz. v.

Local Unions No. -406, $tc., 254 F. Supp. 962, 966-67

_ (E.D. La. 1966). Our Court of Appeals stated in its

opinion, however, that the Secretary must show a “rea-

_-Sonable: probability” that the election may have been -

affected and that there is a “meaningful relation’? be-

tween the violation’and the election outcome. It seems,

therefore, that a violation by disqualification of can-

didates does not automatically’ equire a finding that

the outcome may have been affected. \ —

*Two elections .were before our Court of Appeals, --

each in a different loéal union. Prior to one election,

eleven opposition candidates were disqualified, after.

this, the election was uncontested, 216 members then ~ \

voting out of a total of almost 600 members. One of

_ the-disqualified candidates is referred to by the Court

282-903—67——_5

4 *

of Appeals asa “proven vote-getter’’ who had won in’

an r election. In the other élection, two opposi-

tion candidates were disqualifted ; after’ this, the elec-

tion was uncontested, 607- members then voting out

of a total of 3,000 members.

By contrast, while the violation in the ease at bar

eaused the disquatification of. nine candidates, there

F was nevertheless a contested election. In ‘this contested

4 ‘election, there was an opposing candidate for ‘the

highest union office (President) and an gpposing can-

didate for General Organizer, the second’ or third

most important office in. the union. There were eiglit

: opposing candidates for Convention Delegate, running

oar in all districts, and three opposing candidates for dis-

f ~ trict offices. Two of the candidates disqualified for -

( “general offices (only | one of whom was disqualified

isabel Ria Nat eect A. 4 ase:

for lack of prior office experience) were ruled eligible’

to run, and did run, in all districts for Convention

» Delegate. The opposing candidates established a cam-

| paign headquaxters ' and - conducted an-~ apparently

vigorous campaign, with distribution of leaflets: and

weekly caucuses and election forums. There is nothing

to show that any disqualified candidate was a “‘proven: |

vote-getter’’ because none of those .disqualified had °

ever run forany office or for the Assembly. In the con-

tested electron of 1965, there -were 11,254 votes cast .

out of a total membership’ of 27,354; this is to be

compared with the vote in. the last uncontested elec-

tion of 1962 when 7,131 votes were cast out of a total | oe

membership of 26,340.

Consideration has been given “not merely to the’

‘effect of the by-law on those disqualified but to its pos-

sible effect.in discouraging others from coming for-

ward as opposing candidates. Nonetheless the heavy _ >

~ vote in favor of the administration candidates is con- -

vincing that the existence and enforcement.of the by-

\ \

€

‘ election. | eds

- The evidence Satisfies me that the primary reason for

the heavy vote in favor of the administratién was the.

lack of any real grievance or issue against the union

law could not have affected the outcome of the

candidates for all 372 Places as delegates to the As-

sembly ; against them were only 5 opposing candidates -

and of these only 2 were of the Membership Party.

The history of earlier elections Shows that when there

are only a few candidates Opposing a full slate for .

. the Assembly, the opposing candidates are never

elected. There is no suggestion that the qualification

_, for Assembly. candidacy (one year’s membership) -was _

t, Saceatele .

Gan V

| The 1965 election *eannot be declared void and a new

election directed. However, Local 6 ought not to be

left free to enforce in future -elections—such as that

due to be held in May 1968—a qualification which is

not “reasonable”. The Secretary ought not be, .put tg

the necessity of bringing a second action. _

Rather than dismissing the complaint, | ‘ therefore,

- 1 seems only right to enjoin Local 6 from enforcing in

future elections any prior office holding qualification.

' ~~ True, the Act does not expressly authorize such

relief; neither does it expressly deny authority to

grant it: The legislative history indicates that Con-

‘> gress never considered the situation here presented ;

thus there is no legislative history relevant tothe

question of granting the suggested relief.

In the Local Unions 410, ete. opinion, our Court of

.. Appeals said (366 F. 2d at 442): m

‘‘And because Title IV does not permit the

Secretary to seek either to enjoin future elec-

tions, or to declare a given candidacy require-

ment unlawful absent a valid complaint and an

investigation of its application to a specific

_ elections ef. Calhoon v. Harvey, supra, we con-

- . elude-that we -have no power to afford the

Secretary relief and therefore that these cases .

. are moot¢

But the situation there was that a new election had

already taken place when the Court of Appeals spoke;

action had already become moot. In the case at bar,

the officers still hold office under the’ 1965 election

.against which the action was. directed. The action here

is not. moot. Moreover, unlike Calhoun v. H arvey, 379

‘U.S. 134 (1964), the Secretary (not individual mem-

‘ bers) is properly before this Court.

Y ie

' If the 1965 election cannot be declared void under

the Act, despite a violation, why should not the Secre-

tary at least be given relief against 4 similar violation

in the future? This would seem entirely consistent —

; the purposes and objects of the Act. The Secre-

vy. in- his complaint prays in traditional form for

“such other relief as may be appropriate’’.

- Congress by the Act has giveN jurisdiction to this -

Court as a court of equity. Sfich jurisdiction means

“that the Court can grant whatever relief is appro-

priate to the purposes and objects of the Act, whether

expressly authorized in the Act or not. United States

‘ v. Republic Steel Corp., 362 U.S. 482, 492 (1960) ;

Mitchell v. DeMario Jewelry, Inc., 361 U.S. 288, 290-.

92 (1960); Porter v. Warner Co.; 328 U.S, 395, 397-

98 (1946). Citing these decisions, a commentator has

suggested with reference to the Act: ~ '

“The fact that one type of equitable enforce-

ment.remedy may have been expressly provided

by Congress in a regulatory statute should not

be a bar to a court’s utilization of additional

equitable remedies which will achieve the legis-

lative ange ’? Beaird, Union Officer Election

Provisions of the Labor-Management Report-

ing and Distlosure Act of 1959, 51 Va. L. Rev..

1306, 1338 (1965). —

. Our Court of Appeals, citing with approval the

Beaird article at the pages from which the above quo-

tation is taken, appears to have concluded that appro-

‘ priate equitable relief may. be given ‘in. this. type. of

action even if not expressly authorized in the act.

Wirtz v. Local U'mone 545, etc., 366 F. 2d 435, 436

(2d Cir. 1966).

The change made by Local 6 in . its by-laws after

_ the action was commenced is not sufficient to comply

’

ee Ce ee eee?

68 «

with the Act. The qualification by~law in effect aggthe

May 1965 election required prior office holding”and

two years’ membership in good standing. That by-law

as later‘amended now requirés prior office holding or

- membership in good standing for five years. Thus the

amended prior office holding qualification has the

effect of discriminating against those who have heen

* members fer two years but have not held prior office.

In a union with a large turnover and the regular entry °

of numerous new members, the amended qualification

‘by-law is not “reasonable’’ under the Act. The Secre-

tary is entitled to an injunction against*the enforce-

ment in any future election -in Local 6 of any by-law.

requiring prior office holding asa qualification for

office. * oe :

The foregoing contains the findings of fact and con-|

clusions of law required by Fed. “ides P. 52(a).

A judgment in accordance with the opinion may be

submitted on notice. _ |

‘Dated: New York, New York, March 20, 1967.

) t= Inzer B. Wyatt, .

United States District Judge.

_ APPENDIX F

United States District Court for the Southern District

of New York |

7 ; .

' 66 Civ. 626 —:

W.. Witiarp Wirtz,- SECRETARY OF Lasor, UNITED. —

STATES DEPARTMENT OF LABOR, PLAINTIFF

Vv.

Hotei, Morer anp Cvs EMPLoyres Unton, Locat 6,

DEFENDANT ;

, JUDGMENT AND PERMANENT INJUNCTION

~~" This action having come for: trial on January 16,

17, 18 and 19, 1967, before the Court, Honorable Inzer

B. Wyatt, District J udge, presiding, and the issues

| having , been duly ¢pied, and a decision containing ~~

findings of fact and conclusions of law having been

duly rendered’ and filed on March 20, 1967, it Is .

ORDERED, ADJUDGED AND DECREED as follows:

_(1) The prior office holding qualification eontained .

in Article IV, Section 7(a)(2) of defendant’s By-.

- Laws is not a “reasonable qualification’”’ ‘upon. its

_ members’ right ‘to nominate candidates for elective

office within the meaning of the Labor-Management

- Reporting and Disclosure Act of. 1959, Section 401(e), ;

29 U.S.C. 481(e), and. its enforcement in the election’

of May 19, 1965 was a violation of the Act. * |

te “agen ' |

mo a 3 {

(2) the ames violation of the Act was not one -

which ‘“‘may have affected the outcome’? of the 1965

‘election within the meaning of the Labor-Management . -

Reporting and Disclosure Act of 1959, Section 402(c),;

29 U.S.C. 482(c).

(3) The defendant, its officers, agents, servants, -

, employees, and representatives, and all those persons

in active concert or participation with them, be, and

they hereby are, permanently enjoined and restrained

from enforcing in any future election of defendant,”

any by-law requiring prior office holding as a , goal

fication for office.

(4) The jurisdiction of this ‘Court is ‘retained for ;

the purpose of enforcing or modifying this permarient

"injunction and for the purpose of granting such addi- .

tional relief as may hereafter seem appropriate.

Dated: aew York, New York, March 29, 1967. |

<r - Inzer B. Wyatt,

ais reed : United States District-J udge.

J uf |

gment entered March 29, 1967.

_ SOHN J. OLEar, aa .°.°.

: a —

APPENDIX @_

; ig ‘ ’ .

Statutes Ixponven’ :

The Labor-Management Reporting and Disclosure

Act of 1959 (73 Stat. 519, 29 U.S.C. 401, et seq.)

provides in pertineht part:

a See. 2. [29 U.S.C. 401] (a) The Congress

finds that, in the public interest, it continues

to be the responsibility of the Federal Govern-

ment te protect employees’ rights to organize,

choose their own representatives, bargain col-

leetively, and otherwise engage in concerted -ac-—

tivities for their mutual aid-er protection ; that

“he-relations between emfiloyers and labor or-

ganizations and the millions of workers they °.

represent have a substantial impact on the com- /.

- * merce of the N ation; and’ that in order to ac- )

_ ¢omplish the objective of a free flow of com-

_- Merce rt is essential that labor organizations,

‘ employers, and their officials adhere to the

highest standards of responsibility and. ethical

conduct in administering the ‘affairs of their

organzations,: particularly as they affect labor-

Telations. . : |

(b) The Congress further finds, from recent

investigations in the labor and management

fields, that there have been a number 6f in-

stances of breach of trust, corruption, disregard

of the. rights of individual.employees, and other

failures to, observe high standards of Fespon-

sibility and ethical conduct which require

further and supplementary legislation that will.

afford nevessary protection of the rights and.

interests of employees and the public generally +

as they relate to the activities of labor orga-

' : (71) .

“°

nizations, employers, labor relations consul-

tants, and their officers and representatives.

and declares that the enactment of this Act is —

_ necessary to eliminate or prevent improper

‘practices on. the part of-labor organizations,

- employers, labor relations consultants, and their

officers. and representatives which distort and °

defeat the policies of the Labor Management

Relations Act, 1947, as amended, and the, Rail

‘way Labor Act, as .amended,.\and haye the

tendency or necessary effect of burdening or

_ obsttucting commerce - ‘by (1) impairing the ef-

ficiency, safety, or operation of the instrumen-

“talities of commerce; (2) occurring in the eur-

rent of commerce; ( 3) materially affecting, re-

straining, or controlling the flow of raw mater-

_ials or manufactured or processed goods into or

‘from the channels of commerce, or the prices of

such materials or goods in commerce; or (4)

causing diminution of employment anil wages

in such volume as substantially to impair or -

disrupt the market for goods flowing into or

from the.channels of* commeree.

See. 401. [29 U.S.C. 481] (a) Every national

or international labor organization, except a

federation of national or international labor

organizations, shall elect its officers not less

often than once every five years either by secret

ballot among the members in good standing or

at a convention of delegatés chosen by secret

ballot.

(b) Every local labor organization shall elect

its officers not less often than. once every three.

years by secret ballot. among the members in

good standing.

(ce) Every national or international labor or- .

ganization, except a federation of national or .

international labor organizations, and every lo-

eal labor organization, and its officers, shall be

under a duty, enforceable at the suit of any

~ 2

;

SKE 2.

- bona fide candidate for office in such labor or-

ganization in the district court of the United

States in which such labor organization main- .

tains its principal office, to comply with. all .

‘reasonable. requests of any candidate to dis- .

tribute by mail or otherwise at the candidate’s

expense campaign literature in aid of such per-

_ Son’s' candidacy to ail members in good stand- -

ing of such labor organization. and to refrain

from discrimination in favor of or against any

candidate with respect to the uge of hists of

members, arid whenever such labor organiza-

tions or its officers authorize the distribution by’

' mail or otherwise to. members of ‘eampaign

literature on behalf of any candidate or of the

labor organization itself with reference to such

election, similar distribution at the request of

». any other bona fide candidate shall be made by .

such labor organization and its officers, with

equal treatment as to the expense of such dis-

tribution. Every bona-fide candidate shall have

the right, once within 30 days prior to an elec-

tion of a labor organization in which he is a

candidate, to inspect a list containing ‘the names

and last known addresses. 6f all members of the

labor organization who are subject to a collee- ~

tive bargaining agreement requiring member-

ship therein as ‘a ‘condition _of- employment,

_ which list shall be maintained and kept at‘ the

principal office of such labor organization by :

a “designated official thereof. Adequate safe-

guards to insure a fair election shall be pro-

vided, including the right of any candidate to

have an observer at the polls and at the count-

ing of the ballots. |

(d) Officers of intermediate bodies, such: as

_' §eneraLeommittees, system.boards, joint boards,

_ oY joint councils, shalk be elected not less often

than once every four years: by secret ballot

among the members in good standing or by la-

Cia

bor organization officers representative of such

members who have been elected by secret ballot.

(e) In any election required by this section

which is to be held by secret ballot a reasona-

ble oppértunity shall be given for the nomina-

tion of candidates:and evéry member in_ good

standing shall be eligible to be a candidate and

to hold’ office (subject to ‘section 504 and to

reason:ble. qualifications uniformly imposed)

and.shall have the right to vote for or other- -

wise support the candidate or candidates of his

choice, without being subject -to penalty, dis-

cipline, or. improper interference or reprisal

-of any kind by such organization or-any mem-.

ber thereof\Not less than fifteen days prior to

the election notice thereof shall be mailed to .

- each member at his last known home address.

Each member in good standing shall be entitled °°

to one vote. No member whose dues have been

organization pursuant. to his: voluntary: author- .

. ization provided for in a collective bargaining

-agreement shail be declared ineligible to vote or

be a candidate for office in such organization

by: reason of alleged delay or default in the pay-. .

_ment of dues. The votes cast by members of gach ~

local labor organization shall be counted, and —

the results published, separately. The election

officials designated in the constitution and by-.

laws or the secretary, if no- other offieial is-

designated, shall preserve for one year the bal-

_ lots and all other records pertaining to the elec-

‘tion. The election shall be-conducted in accord-

ance with the constitution and bylaws of such

organization insofar as they are not inconsistent

with the provisions of this title.

.(£) When officers are chosen by a convention

of delegates elected by secret ballot, the con-

- vention ‘shall be conducted in accordance with

the constitution and bylaws of the labor organi-

zation insofar as they are not inconsistent with

- the provisions of this title. The officials desig- -

N ,

a —

DO Lal sabe She ADI the

nated in the constitution and bylaws or the _ -

secretary, if no other is designated, shall pre- ..

serve for'one yéar the credentials of the dele-

gates and all minutes and othgr records of the -

convention pertaining to the election of officers.

(g) No moneys received by any labor’ organi-

zation by way of dues, assessmefft, or: similar

levy; and no moneys of an employer shall be

contributed or applied to promote the candidacy

of any person in an election subject to the pro-

visions of this title. Such moneys of a labor

organization may be utilized for notices, factual

statements of issues not Mivolving candidates,

and other expenses necessary for the helding of

an election. ™

“(h) If. the’ Secretary, upon application: of

after hearing in accordance * apes the Adminis-

trative Procedure Act that the constitution and

bylaws of such labor organization do not -pro-

vide an adequate procedure for the removal of

such officer may be removed, for cause shown

and after notice and hearing, by the members

In good staring voting in a secret ballot con-

ducted by the officers of such labor organiza®

tion in accordancé with its constitution and —

bylaws insofar as they are not inconsistent with

the provisions of this title. .

(i) The Secretary shall promulgate rules and

. regulations prescribing minimum standards and

procedures for determining the adequacy of the

removal procedures to which reference is made

in subsection (h). ; ee

See. 402 [29 U.S.C. 482] (a) A member of

a labor organization— - Pye

(1) who has exhausted the remedies availa-

ble under the constitution and bylaws of such

organization and of any parent body, or

(2) who has invoked ‘such available remedies

} < N :

“

TOT PSS ETAT

om eengetes

76 ee at

‘iy

.. without obtaining a final decision within three

calendar months after their invocation, ~ ‘

may file a complaint with the Secretary within

one calendar month thereafter alleging the -

violation of any. provision of section 401, (in-_

cluding violation of the constitution and bylaws.

of the labor organization ‘pertaining to the

election. and removal, of officers). The chal-

lenged election shall be presumed valid pending

a final decision thereon (as hereinafter pro-

vided) and in the interim the affairs of the

organization: shall be conducted by the officers -

elected or in sueh other manner as its constitu-

tion and bylaws may provide.

(b) The Secretary shall investigate stich com- __

plaint and, if he finds probable cause to believe

that a violation of. this title has occurred and

has not beeri remedied, he shall, within sixty

days after the filing of such complaint, bring a

civil action against the labor organization as —

an entity in the district court of the United

States in which such labor organizatfon main- |

tains its principal office to set aside the invalid

election, if any, and to direct the conduct of an

election. og hearing and vote upon the removal

of officers under the supervision of the Secre-

tary and in accordance with the provisions of

this title and such rules and regniations as the

Secretary may prescribe. The court shall: have . |

power to take such action as it deems proper —

to preserve the assets of the-labor organization..

¢e) If, upon a preponderanée of the evidence :

after a trial upon the merits, the court finds—

(1) that an election has not been held within ~

the time prescribed by section 401, or

(2) that the violation of section 401 may have

affected the outcome of an election,

the court shall declare the election, if any, to be .

‘void and direct the conduct of a new election un-

der supervision of the Secretary and, so-far as

lawful and practicable, irrconformity. with: the

2 @

constitution and bylaws of the labor organiza- —

tion. The Seeretary shall promptly certify to

the court thé names of the persons elected, and

the court shall thereupon enter a decree declar-

ing such persons to be the officers of the labor

organization. If the proceeding is for: the /re-~

moval of officers pursuant to subsection (h) of

section 401, the Secretary shall certify the re- .

sults of the vote and the court shall enter a

decree declaring whether such persons have

been removed as officers of the labor erganiza-

tion. tae ,

(d) An order dirécting an election, dismiss-

. nga complaint, or designating elected officers .

of?, a labor organization shall be appealable in . -

the. same manner ‘as the final judgement in a

etvil action, but an order directing an election

, Shall- not be stayed pending appeal.

See, 403. [29 U.S.C. 483] No labor organiza-

tion shall: be required by law to conduct elec-

tions of officers with greater frequency or in &

different form er manner than is required by its

own constitution or bylaws, except as otherwise

provided by this - title. Existing rights and

remedies to enforce the constitution and bylaws

of a labor organization with respect to elections

prior to the conduct thereof shall not be affected

by the provisions of this title. The remedy

provided by this title for challenging an election

already conducted shall be exclusive: . :

_, See. 601. [29 U.S.C. 521] (a) The Secretary

Shall have power’ when he believes it necessary

—— to determine whether any person has

lated or is about to violate any provision of:

this Act (except title I or amendments made by

this Act to other'statutes) to make an investiga-

tion and ‘in connection therewith he may enter

such places and inspect such records and 9

‘counts and question such’ persons as. he ma

78° |

deem\ ecessary to enable him » determine the

acts

to inte persons or officials concerning the

facts r td be shown in any report re-

ay! by this Act and concerning the reasons

. any other matter which he deems to be dppro-

‘priate as a result of such an investigation.

(b) For the purpose of any investigation pro-

vided for-in this Act, the provisions of sections —

9 and 10 (relating to the attendance of witnesses -

and the production of books, papers, and docu-

ments) of the Federal Trade. Commission Act.

_of September 16, 1914, as amended (15 U.S.C.

49, 50), are hereby ‘made applicable to the

jurisdiction, powers, and duties of the Secretary

or any officers designated by him.

‘tee

vs. GOVERNMENT PRINTING OFFICE: 1967

tive thereto. The Secretary may report | |

‘-

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.