# Appendix — Hodgson v. Local Union 6799, United Steelworkers > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386413_0306%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1971 - **Citation:** 403 U.S. 333 ## Text IN THE Supreme Court of the United States OCTOBER TERM, 1970 No. 655 JAMES D. HODGSON, Secretary of Labor, Petitioner, — LocaL UNION 6799, United Steelworkers of America, AFL-CIO, et al. ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT INDEX TO APPENDIX Page Relevant Docket Entries z$ 1 In the United States District Court for the Ceneral District of California: Plaintiff's Complaint bsnl bastion com eaneidiesspdinehibns 3 Answer of Local Union 6799 _......_-»»»- = 7 Answer of United Steelworkers of America, AFL-CIO - 9 United Steelworkers of panemaieite AFL-CIO’s Motion to Intervene and Order... tia 10 Answers to Interrogatories 12 Pre-trial Conference Order > 13 Findings of Fact and Conclusions of — iienplibdenaieadibach 34 ii INDEX Opinion—United States Court of Appeals for the Ninth Circuit li Judgment—United States Court of Appeals for the Ninth IIE sicinsstssapib iniedashesteietigiinaeinch-anclakiutdilaonbatianicanaindiniaeaaeLe Order of Supreme Court — conned filed December RV RRSER VTS GR oeanitY me Ue rd mS DEC Rr RAO Evidence submitted to the District Court _ bpthathaeee Reporter’s Transcript of Proceedings... === Exhibit 2 Article VII, Section 9 of the Constitution of the International Union of United Steel- workers of America Exhibit 5 Letter dated July 8, 1967 from Nicholas D. Hantzis to the International Executive Board; Letter dated May 10, 1967 from Nicholas D. Hantzis to I.W. Abel, Presi- dent of United Steelworkers of America; Telegram dated May 9, 1967 from Mr. I. W. Abel to Honorable Frank S. McKee _ Exhibit 6 Letter dated August 31, 1967 from Walter J. Burke to Nicholas Hantzis; Report of Commission, Re: Election Appeal and two SINE ‘sesiishiiniciscinscscenitsincibipiditatona coset Exhibit 7 Letter dated September 14, 1967 from Walter J. Burke to Nicholas Hantzis __ Exhibit 8 Complaint of violations of Public Law 257, 86th Congress, dated October 11, 1967 and filed with the United States office of Labor Management by Nicholas Hantzis Exhibit 9 Letter dated November 21, 1967 from Henry A. Queen to I. W. Abel Exhibit 15 Table showing Unions which have attend- ance at Union Meetings as a Requirement for Nomination to Local Union office ___ Exhibit L Letter dated February 29, 1960 from John L. Holcombe to Honorable Robert W. Kastenmeir = Exhibit M Letter dated February 4, 1966 from Frank M. Kleiler to George Ford. Exhibit N Letter dated November 25, 1966 from Samuel V. Merrick to Honorable Jonathan Bingham 167 168 176 182 183 188 190 191 192 INDEX iii Evidence submitted to the District Court—Continued Exhibit O Letter dated October 12, 1967 from Frank M. Kleiler to Woodrow W. Donald 196 Exhibit P Letter dated October 27, 1967 from Sam- uel V. Merrick to Honorable Jack Ed- wards 198 Letter dated December 5, 1966 from Frank M. Kleiler to Honorable Jacod K. Javits 201 Exhibit T Excerpts from United States Department of Labor LMRDA Interpretive Manual... 208 © Exhibit Exhibit U Letter dated December 11, 1962 from John L. Holcombe to James L. Paradise -__...... 205 Exhibit V Letter dated December 5, 1963 from Frank M. Kleiler to Frank W. Anulies — 207 Exhibit W (Rejected) Table of number of candidates appearing on ballot in union elections in which Secretary of Labor is challenging application of meeting attendance require- ment 209 Exhibit X (Rejected) Tables of number of candi- date appearing on ballot for office of presi- dent in last local union election held by each local union with 500 or more members in Steelworkers’ District 38 —.._... il RELEVANT DOCKET ENTRIES Date Filings—Proceedings No. 68-326-EC in the United States District Court for the Central District of California 1968 February 29 March 27 March 28 November 25 December 27 1969 January 15 January 27 February 3 March 25 March 26 April 21 April 28 Complaint under Labor Management Report- ing and Disclosure Act, filed Answer of Local Union 6799 of the United Steelworkers of America, filed Answer of United Steelworkers of America, filed Motion to interevene, filed Order granting Motion to intervene, filed Pre-trial conference held Pre-trial conference order, filed Defendant’s Motion for Summary Judgment, filed Plaintiff’s opposition to Defendant’s Motion for Summary Judgment, filed Hearing on Motion for Summary Judgment; Court denied Motion Order of Court denying Motion for Summary Judgment, Filed Trial Order finding in favor of plaintiff and against defendant, filed Date Filings—Proceedings 1969 May 22 Finding of Fact and Conclusions of Law, filed Order setting aside election of President and ordering new election, filed July 18 Plaintiff’s Notice of Appeal, filed July 23 Defendant’s Notice of Appeal, filed Nos. 24,759 and 24,800 in the United States Court of Appeals for the Ninth Circuit 1970 May 8 Opinion of the Court of Appeals Judgment of the Court of Appeals No. 655 in the United States Supreme Court September 4 Petition filed November 6 Brief in oppvsition filed December 7 Order of Supreme Court granting certiorari IN THE UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA Civil Action No. 68-326-EC COMPLAINT under (Labor-Management Reporting and Disclosure Act of 1959) W. WILLARD WIRTZ, SECRETARY OF LABOR, UNITED STATES DEPARTMENT OF LABOR, PLAINTIFF _ Vv. LocaL UNION 6799, UNITED STEELWORKERS OF AMERICA, AFL-CIO-CLC, DEFENDANT COMPLAINT I Plaintiff brings this action under Title IV of the Labor- Management Reporting and Disclosure Act of 1959 (Act of September 14, 1959, 73 Stat. 519 et seg., 29 U.S.C. 401 et seq.), hereinafter referred to as the Act. II Jurisdiction of this action is conferred upon the Court by section 402(b) of the Act (29 U.S.C. 482(b)). III Defendant, Local Union 6799, United Steelworkers of America, AFL-CIO-CLC, is, and at all times relevant to this action has been, an unincorporated association, main- taining its principal offices at 10344 East Holt Boulevard, City of Ontario, San Bernardino County, State of Cali- fornia, within the jurisdiction of this Court. IV Defendant is, and at all times relevant to this action has been, a local labor organization engaged in an indus- try affecting commerce within the meaning of sections 4 3(i), 3(j) and 401(b) of the Act (29 U.S.C. 402(j), 402 (j)). y Defendant is, and at all times relevant to this action has been, chartered by and subordinate to the United Steelworkers of America AFL-CIO-CLC, hereinafter re. ferred to as the International, an international labor or- ganization engaged in an industry affecting commerce within the meaning of sections 3(i) and 3(j) of the Act (29 U.S.C. 402(i) and active.” You couldn’t d wait. Anyone wishing 78 to do so would have to qualify himself by becoming eligi- ble. That the deadline was as of that month, for those who had not attended. Q. Did you recite in the notice what the eligibility requirements were? A. It was copied verbatim from the book. Q. Now, you also mentioned or talked a little bit about copies of the Constitution of the International Un- ion. Did that Constitution set forth in it the [63] eligibility requirements? A. It does. ‘. You also referred to the general or standard By- Ws. Does that set forth the identical meeting attendance requirement? A. I think it does. . Now, you told us there were 12 copies of the Con- stitution that the Local received with the Charter. A. That is right. Q. And you also referred—and I got a little confused —to the possible distribution of Constitutions at the meet- ing. To your knowledge did the Local obtain an additional supply of Constitutions from the International Union? A. Let’s say they were supposed to have been ordered on a motion from the floor by the members. It was said that they were already delivered and passed out. This I had not seen myself. Q. There was a motion on the floor to order a supply of Constitutions from the International? A. That is right. Q. And you say it was said that they were, in fact, ordered. I gather you personally don’t know whether [64] they were ordered or not. A. I could assume this because there was a check issued for merchandise, but as to seeing the physical ob- THE COURT: You were Secretary, weren’t you? Who carried on the correspondence? THE WITNESS: The correspondence was carried on 79 by the Secretary. But the ordering of supplies, and et is handled by the Financial Secretary and officers. THE COURT: The Financial Secretary? THE WITNESS: Yes, or the Treasurer. I am not too sure of that. THE COURT: All right. BY MR. GOTTESMAN: Q. Does the Financial Secretary report to the Local Union meetings the actions he has taken, in terms of disbursing the monies of the Local Union? A. Yes. Q. So it would become incumbent upon him, if he ordered the Constitutions and sent a check for them, to so report to the Local Union members, isn’t that cor- rect? A. Right. [65] Q. Did he give such a report in ‘he meeting you attended? A. He did. Q. Subsequent to his reporting that he had ordered them, do you recall any report that they had arrived? A. Yes, there yas mention made they had arrived and some had been distributed. Q. To your knowledge were copies of the Constitu- tion kept at the Local Union meetings so that people could pick them up at the meetings? A. Let’s say I was pretty busy. I imagine they were. This was so stated. Q. It was stated at the meeting? A. Yes, sir. Q. Subsequent to the ordering and obtaining of Con- stitutions, were there ever to your knowledge any com- plaints by members that there were not sufficient Con- stitutions for those who wanted them? A. I don’t know about them saying there wasn’t sufficient. There were some complaints that they did not receive one. Q. Is this the reference you made to on direct about the people who were told to go to the meeting to get the Constitution? a 80 [66] A. There were some others besides those. Q. Did they complain to you about that? A Q. Did you undertake to supply them with the Cop- stitution? A. Yes. Q. And did you? A. Yes. Q. Are there any complaints you received from people who said they didn’t have a copy which was unfulfilled? A. Yes, because the copies I obtained I couldn’t get a quantity like that. I picked them up from other Locals that had excess on hand. Q. I gather there was a supply available at your Local, isn’t that correct? A. Yes. Q. And they were in possession of one of the officers, other than yourself? A. Yes, sir. Q. Did you request some of those in order to give them to people who asked you? A. I think I got four or five, and then they were gone. Q. You say they were gone, the four or five [67] you got? A. I mean all the copies were out after that, there were no more left. Q. It was reported to you that the Union no longer had copies? A. That is right. Q. Do you recall about when that was? A. No. Q. Do you have any estimate at all— A. Sometime in the latter part of ’66, early part of 67, or whenever. Q. So that you have some knowledge then that the Union no longer has—or at that time no longer had copies of the Constitution for distribution? A. Yes. Q. Now, during the time or beginning with the time that you joined the Steelworkers Union and running up 81 yntil the time of the 1967 election, did you regularly attend the Local Union meetings? A. With the exceptions when I was excused or absent. THE COURT: Wait a minute. With the exception of the time you were excused or absent. Can you give us some idea as to how many meetings you did not attend? [68] THE WITNESS: This could have been maybe four or five at the maximum. THE COURT: That you did not attend? THE WITNESS: Yes. THE COURT: Over what period, now? THE WITNESS: Over the period from ’65 through 7. THE COURT: August 1965 to June of ’67, is that right? THE WITNESS: Yes, sir,—or from May of ’65 on. THE COURT: You missed only four or five? THE WITNESS: Yes, sir. BY MR. GOTTESMAN: Q. Can you tell us in general terms what took place at those meetings? I don’t want, obviously, a blow by blow. But what kind of matters were discussed at the Local meetings and what kind of business was conducted? A. I read all communciations. Any action required was taken. We discussed any business on hand, anything the floor members brought up. Q. Was there a Treasurer’s report at the Local Union meeting? A. Treasurer’s report, yes, sir. [69] THE COURT: Each month? THE WITNESS: Each month. BY MR. GOTTESMAN: Q. I meant to ask you, that notice that you posted setting out the eligibility requirements— A. The plant has seven Union bulletin boards. There was one posted on each board. Q. Now, are these seven bulletin boards the bulletin boards then to which the Union posts any of the notices of importance to its members in the plant? 82 A. Let’s say they are supposed to be. At times ad. ditional copies are posted in other places. Q. Now, is it a fact at every Local Union meeting a reading of the Minutes of the last meeting and your read. ing of the communications, there then follows a report of the officers? A. This is right. Q. Is the first such report the report of the Financial Secretary? A. This sometimes varies, dependent. Q. One of them would be— A. One or the other. Q. What would the Financial Secretary be reporting about to them, to the membership? A. The funds we had on hand and—I don’t [70] re call the form. It’s a balancing of the books. Q. Now, does he—is it he or the Treasurer who has to get approval from the membership for the expenditure of funds? A. Everyone in the United Steelworkers has to have approval before they can expend funds. Q. So that to the extent there are expenditures to be made during a given month or have been made and need approval, are these submitted to the membership for their approval at that meeting? A. I'd say that the one report gives the list of checks disbursed. Some of these are already disbursed. They are voted on. And then from the floor, during the course of the meeting, there may be action taken to receive approval from the members on next month’s or future disburse ments. Q. Can you tell us roughly how much money is being handled by the Local Union on a monthly basis? Are we talking about a few hundred dollars or are we talking about several thousand? A. You are talking in terms of thousands, when you take the dues structure and 600 members. Roughly be tween twelve and sixteen hundred dollars a month comes to the Local from the International. [71] THE COURT: Before we get too far away from this, may I ask about these bulletin boards. 83 Are there any of those bulletin boards in the plant? THE WITNESS: They are all in the plant. THE COURT: They are all in the plant? THE WITNESS: Yes. THE COURT: All seven? THE WITNESS: Yes. THE COURT: Not at the Union Hall? THE WITNESS: No, sir, it is all within the plant. BY MR. GOTTESMAN: Q. Do you have any recollection at any given time how large the treasury, the total treasury of the Union might be? MRS. JANAVS: Your Honor, I’ll object to that as immaterial and irrelevant. I think we are getting far afield. THE COURT: What is the materiality of it? MR. GOTTESMAN: Well, what I would like to show _—and I could do it as easily with this witness as with another—is, you know, the responsibilities of the officers and what happens at the meetings which [72] would, in fact, qualify or would be a relevant factor in determining that someone would be qualified to run for office. THE COURT: What does the amount in the treasury have to do with that? That is the point. MR. GOTTESMAN: I want to show this is not a de minimus thing we are talking about. They are debating expenditures— THE COURT: He said about sixteen hundred dol- lars a month they get from the International. Is that from the dues? That is your share you get back? THE WITNESS: That is returned from the dues, yes, sir. THE COURT: That is your share you get back? THE WITNESS: Yes. THE COURT: I really don’t see—in view of the objection, I will have to sustain it, unless you can show me the materiality. 84 BY MR. GOTTESMAN: Q. Are there on occasions debates about whether or not certain expenditures of funds should be made? A. Quite often. [73] Q. These, I gather, are resolved by a member. ship vote at that meeting? A. Let’s say the majority of the time, yes, sir. Q. Now, there is then something called the Treasurer’s report. I am not sure I’m clear myself on the separation of funds between the Financial Secretary’s report and the Treasurer’s report. If you would help me on that I would appreciate it. A. Let’s see, one is a monthly trial balance and it balances your book and brings it up to date, cash on hand, cash received, cash expended, cash present at the end of the month. The other is a record of disbursements. . As I understand the distinction, one of them ac- tually holds and spends the money and the other one keeps the books and accounts for it, is that correct? That is probably too simplified. A. Yes, this is basically, If I understand you, the function laid out by the International. Q. I gather it is sort of a system of checks and bal- ances. At least two people, one of whom keeps the books and the other of whom keeps the money? A. Correct. Q. Now, then comes, as I understand it,—or [74] at some point in the meeting does there come a Trustees’ report? A. Let’s say that at least every quarter there is one and regularly whenever there is anything to report, yes, Q. What are the Trustees reporting about, when they report to the meetings? A. The Trustees’ main function is care and keeping of the property and auditing of the records. Q. It is about those subjects they report at the meeting? A. Yes. — _ Does there come during the course of the meeting a report of the International Representative or Staff Representative? A. Yes. Q. Is he an employee of the Local Union or is he an employee of the International? A. An employee of the International. Q. Can you tell us in general terms the range of sub- jects about which he would be talking at a local Union meeting? MRS. JANAVS: I will object, your Honor, again on the ground this is not material or relevant, because, as we know already, a person could qualify even [75] without having attended a single meeting, assuming they worked overtime every meeting night. THE COURT: I suppose this is general background. You can cross examine him. You can ask him, does his International say so and so and so and so, and let’s get right to it. BY MR. GOTTESMAN: Does the International Representative report to the membership on the affairs in general of the International Union and activities on a nationwide basis of the Union, on the existence of strikes at other locations, collective bargaining reports and results at other locations? A. Not as a whole. Specifically as these circumstances are of importance in his judgment. Q. Does he also report on specific events relating to your Local Union, such as the status of grievances that are pending with the company? A. He backs up or covers the Grievance Chairman’s report. Q. Then we have a report of the Grievance Chairman. Is it the function of his report to describe to the mem- bership the grievances which are then pending against the company? [76] A. That is correct. . And these are grievances relating to alleged vio- a by the company of the collective bargaining agree- ment 86 A. This is correct. Q. And are there, in fact, a number of such griey. ances, as a matter of course, generally in progress, pend- ing? A. Almost everywhere, yes. Q. And of course here? A. Yes. Q. Are there then on occasions standing committees, such as the Finance Committee, Workman Compensation Committee and the Welfare Committee and Safety Com. mittee who report to the Union meetings about the spe. cific subjects covered by their committees? A. Yes. Q. Is there a section of the meeting devoted to un- finished business, in which pending matters before the membership are debated and ultimately resolved? | ee: Q. And then is there a section of new business, in which new matters which have arisen require member- ship action which are discussed and resolved? A. Yes. [77] Q In your judgment, Mr. Hantzis, could a man who had not attended the Union meetings assume the of- fice of President or Vice President or Financial Secretary of this Union and fulfill it competently? MRS. JANAVS: Objection, your Honor. I don’t think that one man’s opinion on this is particularly relevant or establishes whether or not a person could. I would assume it would depend on the individual in- volved and I would think it would be for the membership to decide when they vote for a particular office, whether the candidate is qualified or is not qualified to hold the particular office. This is what the Supreme Court said in one of the cases we cited, the membership should decide it. MR. GOTTESMAN: In fact, your Honor, this is a debatable fact. Our membership at our convention de- cided it by voting to have the meeting attendance require- ment. They voted that it was relevant. THE COURT: Well, does it make any difference? What would be the effect if he said, “No, I don’t think he could” or if he said, “Yes, I think he could”? -— It depends on what he says that would affect your argu- ment. You’d cast it aside if it were unfavorable and if you thought it was favorable, why, you [78] would use it. But I don’t really see what he thinks about it really is going to control, is it? MR. GOTTESMAN: OK. THE COURT: That is something I have to deter- mine, I suppose. BY MR. GOTTESMAN: Q. Mr. Hantzis, you were a candidate in 1967 for the office of President, is that not right? A. I was. Q. Can you tell us who your opponents were? A. Kenneth Rose and Donald Redell. @. Were any other persons nominated for the office of President at the Local Union meeting? A. To the best of my recollection there was one dec- lination, but I would have to verify that by checking rec- 87 ords. THE COURT: Do I understand there were three nominated? THE WITNESS: Three nominees were accepted. THE COURT: Yourself and—who is it, Mr. Rose? THE WITNESS: Rose. THE COURT: And who was the other one? THE WITNESS: Redell. [79] BY MR. GOTTESMAN: Q@ When you say there was one declination, in other words, there may have been another person whose name was proposed but said he didn’t want to run? A. Yes, that is correct. Q. Were there any candidates whose names were pro- posed and who were ruled ineligible by reason of not sat- isfying the meeting attendance requirement? A. You are speaking now of the— Q. Office of President. A. Not to my knowledge. 88 [96] REDIRECT EXAMINATION BY MRS. JANAVS: Q. Mr. Hantzis, do you recall approximately when this motion to order the Constitutions was made, what month and what year, approximately? THE COURT: Motion to what? MRS. JANAVS: Motion to order the Constitutions, THE COURT: You mean copies of them? MRS. JANAVS: Yes. THE COURT: All right. THE WITNESS: I don’t recall. It would be in the Minutes. BY MRS. JANAVS: Q. Do you recall at 3:1 approximately when it was that this check was issued for the copies of the Constitu- tions you testified about and the report made by the Fi- nancial Secretary that this had been done? A. It would have been within the subsequent months, as the order was made, ordered and completed or de livered. Q. But you can’t say whether it was in ’67 or ’66 or 65? A. I think it was ’66, I’m not positive. Q. Sometime in ’66? [97] A. It would have been toward the latter part of the year. Q. Excuse me. I'll rephrase it. Now, was there a time when the Union officials in- quired of the International Union as to how many meet- ings a member of Local 5799 would have had to attend in order to qualify as a candidate in the 1967 election? A. I think that was the month preceding the election itself or somewhere within a few days or even a week or so of that time. The question—I brought the question to the floor, that they contact the International on it myself, and this was shortly after nominations before the election. —— 89 Q. And the question was how many meetings would a cular member of your Local have to attend in order to qualify in that election, is that correct? A. Correct. Q. And do you know, did the reply from the {98} In- ternational come shortly thereafter? A. The reply was announced. I don’t recall seeing it - It would be from August on of 1965. Q. How many meetings would have to be attended during that period in order to qualify? A. The Constitution would stili hold good, 50 per t. “Q. It would be the August meeting that would be the first one to count? A. Yes, ma’am. Q. And this was approximately one month before that actual election? A. Between nominations and election, yes, sir. Q. After nominations and before the election? A. Yes. (99) BY MRS. JANAVS: Q. Now, getting back, you testified in May, June and July of 1965 the Constitution might have possibly been read by Mr. Parker at the Union meetings for those months. A. Yes. - * * _ Q. Mr. Hantzis, the people that attended a meeting in May, June and July of ’65, were there not a substantial number of people that attended one meeting that also at- tended the other meetings mentioned? A. Yes. Q. When you say two-thirds of members approximate- ly attended these meetings, were you talking in terms of the total number of people that attended all these [100] meetings or are you talking about approximately 250 dif- ferent members having attended? A. The attendance at the meetings in May, June and July of 1965 may have been different members, but there LS ei es 90 were approximately two-thirds of the employees at each of those meetings or the combined total of the meetings, each month. THE COURT: The average then? THE WITNESS: The average for each month pres- ent. [102] Q. There was no established policy by anyone [103] in writing as to what time a person—how much a person had to work overtime in order to qualify for credit, is that right? A. It doesn’t state overtime per se. It says your em- ployment—you must be on the job or working. You must be working. THE COURT: We are using overtime as working. Use the word “working”. Maybe that is better. BY MRS. JANAVS: Q. So there was no specific announcement or notice given to the employees as to how late they had to work to qualify for credit? A. No. [108] HENRY A. QUEEN a witness called on behalf of the plaintiff, having been previously duly sworn, was examined and testified as fol- lows: a - o . DIRECT EXAMINATION BY MRS. JANAVS: Q. Mr. Queen, you are employed by the United [109] States Department of Labor, is that right? A Yes, ma’am. Q. What is your position with the Department of Labor? A. I am Chief, Branch of Elections and Trusteeships, Office of Labor-Management, Welfare, Pension Reports, U.S. Department of Labor, Washington. earner | _—_ 91 In your work do you have any duties at all in relationship to Union election investigations? A. I do. Q, Can you tell the Court what those duties are? A. Well, put briefly, when we have word from our feld offices that they have received a complaint from a Union member, who has met the requirements of 402 (a) (1) or (2) of the Labor-Management Requirement Dis- Act of 1959 my branch in Washington begins to follow the progress of the investigation of that case in the field. We have to be sure that the investigative results are received in my office well in advance of the statutory filing deadline. We try to get it in within 30 days of the deadline. Having gotten the results in, we give it an analysis and evaluation, and then as soon as we are reasonably sure of the Title IV violations, disclosed by [110] the investi- gation, a letter is prepared for my signature, add to the President of the parent body, with a copy to the President of the concerned Local, in case of a Local in- vestigation, and anyone else who migtt be an informed person, like an attorney for the Local or President of the District Council, and we notify them by that letter the nature and kind of Title IV violations that have been established, we think, as of that stage in the investigation rocess. : In the letter we ask for a reply by a certain date, which is again in advance of the filing deadline. Q. Now, with respect to Local Union 6799 of the United Steelworkers, did you in the course of your work receive a complaint, filed by any member of that Local with the Department of Labor? A. We did. MRS. JANAVS: I wonder if the witness might be handed Exhibit 8, please. (Exhibit placed before the witness.) BY MRS. JANAVS: Q. Mr. Queen, would you examine Exhibit 8, please, and state if that is the complaint which in due course arrived in your office? 92 A. This is the complaint that in due course [111] was received in my office. . All right. MRS. JANAVS: At this time I would like w mark for identification as Plaintiff’s Exhibit 9 a letter ad. dressed to Mr. Abel, International President, from Henry A. Queen. THE CLERK: Pilaintiff’s 9 for identification. (Document was marked Plaintiff’s Exhibit 9 for identification. ) MRS. JANAVS: May the witness be handed Exhibit 9 for identification, please? (Exhibit placed before the witness. ) BY MRS. JANAVS: Q. Would you identify, Mr. Queen, what this docv- ment is? A. This is the summary of violations that I sent to Mr. Abel on November 21, 1967, with a copy to the Presi- dent of Local 6799, notifying them that the investigation conducted up that point in Local 6799 had disclosed cer- tain Title IV violations. MRS. JANAVS: I would at this time offer Exhibit 9 in evidence, your Honor. MR. GOTTESMAN: No objection. THE COURT: 9 is ordered in evidence. [112] (Document marked Plaintiff’s Exhibit 9 was re ceived in evidence.) BY MRS. JANAVS: Q. Mr. Queen, as regard Exhibit 9, have you discussed the violation alleged in that exhibit with any Union of- ficials or attorneys for the United Steelworkers? A. Yes. Q. And can you tell us the first occasion that you had any discussion with relation to the allegations made in that letter with any such officials or attorneys? A. Well, instead of replying by letter the Union of- ficials asked for a conference back in Washington. That _ — 93 conference was arranged. It was held on December 18th, 1967, in the office of the Assistant Secretary Thomas R. Donohue. . Do you recall some of the people that were repre- senting the Union who were present at that meeting? A. Yes, the Union was represented by Mr. Bernard Kleinman, General Counsel, by Mr. Gottesman, by Mr. Wynn Newman, an associate General Counsel and there were several field representatives there whose names I no longer recall. You were present at this meeting for the Depart- ment of Labor? A. I was. [113] Q. Do you recall any of the other people that were there from the Department of Labor? A. The Department was represented by Assistant Sec- retary Thomas R. Donohue and nis deputy, John Shinn, and Frank M. Klieler, Director of the Office of Labor- Management— THE COURT: Mr. Tyler or— THE WITNESS: Klieler, your Honor. THE COURT: How do you spell it? THE WITNESS: K-l-i-e-l-e-r. Mr. Klieler and his deputy, Mr. Leonard Lurie, L-u-r-i-e, and myself. Now the office of the Solicitor was represented by the Solicitor himself. His name is Charles Donahue. George T. Avery, who is an Associate Solicitor. Miss Bea Block, Chief of Litigation, and Mr. Robert Lagotta, who is an attorney in the Solicitor’s office. BY MRS. JANAVS: Q. Do you recall what was discussed at this meeting, as far as the alleged violations stated in Exhibit 9 were concerned ? A. Well, Assistant Secretary Donohue opened the meet- ing by telling the Union officials that the Department was concerned with the Steelworkers’ three-year meeting at- tendance requirement, and reminded them at one [114] time they had had a two-year meeting attendance re- quirement. — 94 And it seemed this one would be more apt to make it more difficult for Union members to qualify for Union office. He also went on to say he was not making the point that the meeting attendance requirement was unreason- able per se, but in particular cases over 90 per cent of the Union members had been unable to meet these meet- ing attendance requirements. In this particular case I think the percentage was some- thing like over 93 percent had not been able to meet the meeting attendance requirement. Now, then, the discussion, as I recall it, went to the nature and purpose of the meeting attendance require- ment. Why have a meeting attendance requirement as a condition to eligibility, in the first place. In that connection I believe it was Mr. Kleinman who said that in the Steelworkers Union it had been the feel- ing for some time that the members coming into a Union office should be thoroughly cenversant with the nature and responsibilities of the activities being performed in the Local seeking the office, and the only way to acquire that sort of expertise was by showing interest enough to attend at least half the meetings over [115] the three- year period. Then we went into the type of excuses the Union mem- ber could use as a justification for not having attended a meeting, and the excuses allowed were conflicting work assignments and working on Union business, I believe. In this connection we reminded the Union members— the Union officials in the Steelworkers case it would be possible for a Union member who had attended not a single meeting to still be eligible under the excuse provi- sion for candidacy for a Local office. Then—let’s see, we got into the specifics of 6799 and then, as I recall, we went down the list of violations I had enumerated in my letter and we pointed out that even with the meeting attendance requirement there had not been a uniform application of them in this particular case. We cited one case where the candidate for Financial Secretary-Treasurer, I believe, had been credited with 95 attending seven meetings, where he had been given no credit for conflicting work assignments for four more meetings, and had he been given that credit he would have been eligible in this case. Then we mentioned another case where a candidate for the office of Trustee, I believe, withdrew [116] because he thought he himself was not eligible and yet, according to the work records we examined, he was eligible had he heen given credit for the times work assignments con- flicted with the Union meeting base. Now, there were some other matters of a lesser nature involving Title IV, but we didn’t emphasize those because we didn’t think they would show the effect on the out- come, the accountability for ballots and that sort of thing. * * _ o [118] Q. Did you have any other meeting with Union officials or their attorneys covering more or less the same subject matter? A. Yes, there was a later meeting in— THE COURT: January 20th, wasn’t it? THE WITNESS: Latter part of January, I think, your Honor, yes. And I believe that the same repre- sentatives were there, with the possible exception that— lm not sure Mr. Kleinman was there for the Steel- workers. I know the field representatives for the Steel- workers were not there. Mr. Gottesman was there, I believe. Mr. Newman was there and the Department of Labor people were the same as at the previous conference. [119] BY MRS. JANAVS: Q. Did you have any other contacts besides these two meetings, either in writing or in conversation, with any- one representing the Union, attorney or official of the Union? A. Other than in the Union? Q. Other than these two meetings that you have just discussed. 96 A. Oh, yes, yes. I was in contact with Mr. Newman on an average, I would say, of about three times a week from the fall of 1967 until about March of 1968, because during that period we had received a total of 12 actionable complaints against Steelworker elections, of which 6799 was just one. On each and every one of those we had separate discus- sions and separate conferences. But the general feeling that Mr. Newman had, when he talked to me, was he would like to do little preliminary investigation himself before we started our investigation. In that connection I reminded him, of [120] course, that the Secretary had a statutory mandate once he had received an actionable complaint to dispose of it within 60 days. He was very accommodating by giving us waivers, which sometimes he delayed us, but we did have a number of discussions. The principal thrust of these discussions was, “If you are going to take us to court on the meeting attendance issue, why isn’t one case enough to test that?” Of course, our answer had to be we evaluated each case on its merits and my job was to make the recom- mendation based on each and every case as I see the in- vestigative findings, and the decision to litigate or not to litigate as the finding is solved elsewhere. Q. During these conversations you had with Mr. Newman three time a week or so over the period of fall ’°67 to approximately March ’68, you mentioned you discussed these other suits, too. Did you discuss Local 6799 in any of those conversa- tions, also? A. Yes, Local 6799 would always come up as a case in point where we thought the meeting attendance re- quirement was so unreasonable as it applied here on impact. It served to disqualify such a large [121] percentage of the membership. And we would always go back to what the Assistant Secretary told the group, namely, that we were not saying the meeting attendance requirement was unreasonable per se, but in its application to the par- game 97 ticular situation as in 6799 it seemed to us clearly unrea- sonable. MRS. JANAVE: Thank you. I have no further tions. T THE COURT: If you decide each case on its own merits and you say, as a premise, that the meeting re- quirement was not per se too restrictive, why, then do you take each case and say, “In this case this rule is too restrictive, in this case it is not”? How can anybody tell when the rule can be applied, the point Mr. Gottesman made in his opening statement? THE WITNESS: Yes. Well, your Honor, the Secre- tary thus far has tried te avoid saying that the rule is unreasonable per se because he feels the Union should be in the best position to decide what is best for the Union. But on impact in a particular case, if we could show that all but a handful of the would-be-candidates or mem- bers were disqualified because they couldn’t meet that, we think that is unreasonable. THE COURT: Then when you say it isn’t [122] un- reasonable per se, then that is just kind of window dress- ing. I mean you have to say that in view of the fact the Union is supposed to be allowed to run its own business? I mean isn’t from a practical standpoint, if the rule is so severe that only 20 per cent can qualify in this case, is theie any reason to think that wouldn’t be the rule in other cases, or do you think that the rule was improperly implemented or enforced? THE WITNESS: Well, I think there could be other situations involving the Steelworkers with this very same rule, where they could have waived the rule, for example, and still had it on the books, for one reason or another. THE COURT: Then in each case there comes to the Labor Department, a Union member does and says, “In this ease the rule should be waived” and you are going to decide in each election, where a Union member makes a complaint you are going to decide whether this rule was going to be waived. _— result that I have to understand to be your posi- tion ay THE WITNESS: I don’t think we want to state it exactly that way, your Honor. We want to say that the Act requires the Union to give a reasonable [123] op. portunity to every member they can to run for office, nominate candidates and support the candidates of their choice. THE COURT: I understand that. THE WITNESS: Now then, if.they have a rule that disqualifies most of the members, then that rule is unrea- sonable, certainly, in this particular case. THE COURT: This rule is in their Constitution, though, isn’t it, as well as their By-Laws? THE WITNESS: Yes, sir. THE COURT: It is something that has been applied, I suppose, for many years, throughout— THE WITNESS: No, no, your Honor. THE COURT: What is it? THE WITNESS: No. THE COURT: Since ’65, anyway, hasn’t it? THE WITNESS: I don’t believe this rule was applied until the June 1967 elections. This was the first time this rule was applied. THE COURT: Before that it was only two years? THE WITNESS: I believe that is true, yes, sir. THE COURT: You don’t know when this rule was adopted, this three-year rule? [124] THE WITNESS: It was adopted at the 1964 convention, as I recall, but it was to be applied the first time in the June 1967 Local elections. THE COURT: That is, all Local elections throughout the country? THE WITNESS: Yes, your Honor. THE COURT: All right. Thank you. You may cross examine. 98 CROSS EXAMINATION BY MR. GOTTESMAN: Q. Mr. Queen, referring to the first of the two confer- ences we had in person with you and other Labor Depart- ment representatives,— 99 A. Yes, Mr. Gottesman. —I would like to ask whether other certain ad- ditional statements were made by the Union, other than those you have indicated, in the defense of the meeting attendance rule? First of all, is it not true that the meeting, the first of the two meetings involved not just Local 6799 but some geveral cases, each of which had a meeting attendance rule practice? A. That is correct, sir. Q. Is it not so, that at least a substantial [125] por- tion of the discussion during that meeting was the Union’s defense of the meeting attendance rule, as such, rather than in terms of its application, each of the specific Locals Unions involved? A. That is correct, sir. Q. And did not Bernard Kleinman, the General Coun- sel, argue as one of the reasons in support of our being permitted to retain the rule, that it was the rule adopted in the International Constitution, which would by force apply to some thirty-five hundred Local Unions, and therefore to apply it case-by-case method in deciding its reasonableness would make it impossible of administra- tion? A. He did make that point. The Department made a point, too, in connection with that. Q. What was the Department’s point? A. I believe, now that you refresh my memory, Mr. Gottesman, Mr. Kleinman made the point that this three- year meeting attendance requirement was inserted in the Constitution as the result ef the convention action by delegates, who represented thtr respective Locals, and therefore, it was the will of the n.«iority. I believe that it was Solicitor Donahue, I believe this time said it was incumbent upon the Union to change its Constitution if it was determined that these [126] re- quirements were too restrictive. That is the way I recall it. Q. Perhaps we are not exactly on the same point. The point I was making was not in reference to Mr. Kleinman saying it was adopted by convention action, 100 though, indeed, he did say that, but we would have an institutional problem if the Labor Department insisted on applying the rule n a case-by-case basis, because it would then be impossible for the International Union to administer the rule. Do you recall his making that point, separate from the point about it having been adopted by the delegates? A. Yes, I recall his making that point and I also recall Assistant Secretary Donohue make the point that you previously had a two-yezr rule, which was obviously more reasonable, but a one-year rule would be even more rea- sonable still. Then I believe Mr. Kleinman said that the reason for the three-year rule was that they wanted a rule that coincided with the term of office of Local officers. Q. Did Mr. Kleinman explain that the two years had been changed to three at the same time the term of office was changed from two to three? [127] A. I don’t recall that. Q. Do you recall any discussion about correlation be- tween the term of office and the length of meeting attend- ance rule? A. No, I don’t. I recall it having been convention action. Q. Do you recall a discussion between Assistant Sec- retary Donohue and Mr. Kleinman about whether there would be more or less people qualifying under a three year rule than a two? A. I recall a general discussion, but again Mr. Dono- hue came back to the old premise that we would not say that even a two-year rule was reasonable or unreasonable, but as applied to a particular case, if it developed that all but a handful of the membership of a particular Local were unable to meet these requirements, then we would say it was unreasonable in that case. Q. Then do you recall Mr. Kleinman arguing that it was entirely possible more people might qualify under a three-year rule than two, and it depended on which of the meetings they happened to attend? Do you recall that? A. Yes, we argued that one back and forth. He made that point and the Department of Labor made the point 101 that you could have Union members who attended no [128] meetings whatever and could still qualify. Q. That is a separate point we will get into. A. Yes. Q. Do you recall Solicitor Donahue replying, when Mr. Kleinman said that that he thought perhaps that might be right, that he didn t think the length of the rule changed very much the number of people who would qualify under it, since the same people who went to meetings in one year would be likely to be the ones that went to meetings for two years or three years. A. Yes, I recall that. I also recall citing a case where you had Union members on a permanent shift that con- ficted with the meeting attendance each month, and none of them ever attended meetings. Q. Is this case before this Court one of those cases? A. No, this isn’t one of those cases. You mentioned earlier that we discussed other cases. Q. Yes. A. At that time we had had actionable complaints re- ceived and investigations under way in six cases. THE COURT: You say complaints received. Do you mean on this particular type of election requirement, meeting attendance requirement? [129] THE WITNESS: Yes, your Honor. THE COURT: All right. BY MR. GOTTESMAN: Q. Are you sure, Mr. Queen, or are these things the Labor Department raised on its own? A. These are roints that were turned up in our in- vestigation. I cannot be sure in every case whether the complaints raised them or not. Q. You were about to tell me something you said after Solicitor of Labor Donahue said that the length of the rule wouldn’t make any difference. MRS. JANAVS: I don’t believe that accurately states the testimony, but, at any rate— THE COURT: Well, go ahead. THE WITNESS: Well,— THE COURT: If it is wrong, he can correct it. et ae - 102 THE WITNESS: We pointed out, apart from the length of the rule, if you had . segment of your local membership permanently assigned to a shift, which con- flicted with the meeting attendance night, then all of those members—be they large or small—could qualify for a Union office without having attended any meeting what- ever, and this would defeat the purpose of the meeting attendance requirement as stated by Mr. Kleinman. [130] The way he stated it was the meeting attendance requirement was designed to give the would-be candidates a certain expertise about the affairs of their respective Local. BY MR. GOTTESMAN: Q. Do you recall Mr. Kleinman—lI believe it was Mr. Lurie that was making that point most strenuously, was it not? A. Yes, he did. Q. Do you recall Mr. Kleinman responding that the reason credit was given to them that worked was not be- cause the Union thought it was just as good as attend- ing, but that it was the only alternative to disqualify a whole segment of the membership simply because they worked during meetings? Do you recall that? A. I recall that. . And do you recall he further saying that he as- sumed that the Labor Department would be on our backs even harder if we did not provide some excuse provision for those who could not attend the meeting because of working? Do you recall him saying that? A. Yes, I recall that. Q. Isn’t it a fact that the Labor Department has said, in answer to inquiries from other Unions, it is necessary to provide an excuse provision for those who [131] are working during the meeting? A. Sure. THE COURT: Let me ask a question. I take it this figure of 20 per cent as qualifying is just a round figure. When you discussed this matter at your meetings, that only 20 per cent qualified, if that was 20 or 18 or 17, whatever it was, or 25, was there any discus- — 103 sion as to why the other 80 percent did not qualify by meeting attendance? I can see where 50 per cent might not want to attend meetings and they wouldn’t have any interest at all. Now, was there anything ascertained why the 80 per cent did not attend 50 per cent of the meetings, as to why they didn’t? THE WITNESS: Well, in some instances, your Honor, it had to do with work conflicts, but in this case of 6799, I don’t believe that the Local had access the employees’ records in all these instances, as indicated by the fact that one candidate, who thought he was not eligible, with- drew and, as a matter of fact, he was eligible and he didn’t know it. When we finally got access to the work records, he was working on a sufficient number of meeting nights to have had that number added to the meetings he attended to have qualified. [182] THE COURT: Was there any effort made to ascertain how many of the members were qualified that had been told or that the records—or that the Union had said were not qualified? How many actually were, how many mistakes the Union had made in determining quali- fications, or did they only determine the qualifications of a candidate or of a member who indicated he wanted to run for office? THE WITNESS: The best answer I can give you now, your Honor, is that out of the membership that they had at the time of this challenged election, which I think was 571, we ascertained that there was a figure something less than 40—I believe it was 39 of all the members in this Local who would meet this meeting attendance re- quirement, and included among that 39 were 11 incum- bent officers. THE COURT: Then you checked to determine how many members would have been properly excused by rea- son of work conflict? THE WITNESS: Yes. THE COURT: And there were only 39 who were qualified, including those who were excused because of work conflict? a THE WITNESS: Right. There were two, I believe, your Honor, for whom proper credit had not been [133] given. One of these was a candidate for Financial Secre. tary-Treasurer. He was declared ineligible after he had been nominated, whereas, we determined that he had suf- ficient credits to have qualified. THE COURT: Isn’t the problem, though, whether the rule—I’m afraid in my judgment at this stage it isn’t a question of how many qualified, because 80 per cent might not have cared about qualifying, but the question is a reasonable rule under which a person can reasonably qualify, is‘’t that the question? THE WITNESS: Yes, your Honor. THE COURT: That is the question, isn’t it? THE WITNESS: Yes. THE COURT: It isn’t so much the question as to whether more than 20 per cent or whether more than .'9 did qualify. The question is could they reasonably qualif, under the rule, isn’t that it? THE WITNESS: Yes. Where you have rotating shifts, as you did in 6799, I don’t know how to answer that question. THE COURT: Well, you have to face the problem. You have to take into consideration the hours of work and the Union doesn’t fix that, does it? THE WITNESS: No. [184] THE COURT: The employer fixes that. Now, you have to consider what the Union’s problems are in fixing these rules. I can see how under th~ rules that a man would not have to attend any meeting ‘e had a work conflict all the time. He could qualify « -hout attending one meeting. THE WITNESS: Yes. THE COURT: Now, that defeats what the Union says is the purpose of the rule. They want men who are indoctrinated in the work of the Union and that makes sense, of course. THE WITNESS: Yes. THE COURT: The thing that bothers me at this stage is you say only 39 qualified and I’m assuming that to be correct. 104 105 If only 39 qualified, that means to me that there weren’t many more that wanted to qualify because if they wanted to they would have had these excuses, if they had work that interfered and they would have qualified. Now, you are saying also that the Union did make some mistakes. That you only found what, two mistakes? THE WITNESS: Only two I can recall, your Honor. [135] THE COURT: That isn’t very many, is it, out of 500 or so? THE WITNESS: 587. THE COURT: That isn’t very many, is it? Human error is bound to creep in. I’m just discussing it here because there is no jury. I'm trying to find out exactly what the Labor Depart- ment’s position is and what the problems are on both sides, because I have to determine, I guess, whether this was a reasonable rule. It seems to me the test of the reasonableness is whether an employee could reasonably comply with it. If it were too difficult for him to comply with, why, then it might not be reasonable. But if he didn’t care about complying with it and he could have within all the rules, why, then the question in my mind is, is it the fault of the rule that only 39 complied with it. That is the way I view it at this sitting. All right. Let’s go on, now. BY MR. GOTTESMAN: Q. Mr. Queen, do you recall at the first meeting— perhaps my only contribution, which was to argue that this rule did not disqualify anybody, because under this rule anyone can qualify by simply choosing to [136] at- tend a meeting every other month? A. Yes, I remember your saying that, Mr. Gottesman. Q. Isn’t it a fact, Mr. Queen, that there are some rules in some Unions—not this one—which have the effect of actually disqualifying people, in that there is no way they can comply with such rules? A. As, for example, where there is no excuse pro- vision. Q. That would be an example, that is right. 106 A. Yes. Q. People worked all the time and there was no excuse. A. Right. Q. Or the prior office holding cases which say that only a person who has previously held office would be entitled to? A. Right. Q. But there was no—was there any claim made the representatives of the Department of Labor at that meeting that there were any factors present to this case or in any of the cases that you have had that made it difficult or impossible for members to attend the meet- ings, if they chose to do so? A. Except where they had these work conflicts. [187] Q. Well, then there they got credit for them, isn’t that right? A. Yes. Q. In other words, were there any factors that made it difficult for members to get credit, either by working or by attending the meeting, were any such factors recited at this meeting? A. Well, I believe that there was a recitation at this meeting that the Union had not been able to get a list of the people who were on conflicting work assignments. THE COURT: The Union could not get a list of them? THE WITNESS: From the employer. THE COURT: From the employer. I see. THE WITNESS: There was difficulty encountered there, as I recall. BY MR. GOTTESMAN: Q. Let’s clarify one thing that you responded to the Judge about. You indicated—and I think it was an inadvertent error—that the Labor Department had checked the eligi- bility of every member of the Union. No such effort was made by the Labor Department was there? I’m talking now about not only how many [138] at- tended meetings but how many were entitled to credits by reason for work conflicts. — 107 A. We came up with a figure of five hundred and some xaembers. I think it was 587 members. And then by comparison of the meeting attendance records we came up with a certain number of members who could meet the meeting attendance requirement. Q. I believe that was 36, was it not, who had attended meetings? A. I said 39. It could have been 36. Q. I understood 39 to be the total of those who had attended and those who were entitled to credit. Perhaps | misunderstood. MRS. JANAVS: 386 is what we stipulated is the cor- rect number, your Honor, that qualified by actual attend- ance. THE COURT: Was it 39 then that qualified by at- tendance and excuses? MRS. JANAVS: We would not know the exact num- ber because no one has checked employment records of all these 600 people to see if they might have all worked overtime all this time. THE COURT: Then we don’t know how many were actually qualified then under the rule, do we? MRS. JANAVS: We would not know exactly, [139] your Honor, because not all these records were checked. THE COURT: You don’t have any idea? I mean there is no estimate at all? So possibly more than 50 per cent did qualify under the rule, including those excused? MRS. JANAVS: Theoretically this would be possible. THE COURT: When you say “theoretically”, it is just as possible as not possible, isn’t it? MRS. JANAVS: The problem, of course, your Hon- or—one of the problems— THE COURT: I would think it would be more prob- able more than 50 per cent qualified, if you gave them credit for their—although not necessarily. Lots of them probably didn’t want to attend the meeting. There is nothing to indicate how many wanted to attend and there is nothing to indicate how many did qualify by the excuse. Is it the Government’s position that this excusing them is not fair? ~erweee* = 108 MRS. JANAVS: No, our contention along those lines is only that if the purpose of this rule is to have men that have experience and know what is going on, then, cer. tainly, this excuse detracts from that argument, and we have people here who could have qualified—at least one person we know would have qualified but declined [140) because he thought he was not qualified to run. THE COURT: That is one out of I don’t know how many that you have actually found out about. But there has been no check, as I understand it. There has been no general check to determine how many were qualified, including those who—when you count the ex- cused meetings. MRS. JANAVS: This is part of our case, that the Union has not kept records which would allow them to apply this rule or even show it is a reasonable rule to where either the Government or the Union could really go out and determine. THE COURT: Nobody checked it? MRS. JANAVS: In other words, this is part of our case, that the records that have been kept are not such that would, in fact, allow one to determine exactly how many might have been qualified, how many might not have been qualified and that if the Union has such a rule they should have this type of record available. THE COURT: Does that make the rule unreason- able, because they don’t keep proper records? MRS. JANAVS: We think this is one factor to con- sider, because how is an employee to know ahead of time whether or not he is qualified if he doesn’t know, [141] you know— THE COURT: It would be very simple if they kept proper records. It would be very simple to keep the rec- ords. It would take some personnel and so forth. MRS. JANAVS: If they kept proper records. Also if the employees had been advised of any National, or International policy how much overtime they actually had to put in. In other words, no one knew even up to the time of the election whether they had ordered one, two or three to be given credit for non-attendance. THE COURT: Well, then one of your points is that the rule is not reasonable because it is not sufficiently specific? 109 MRS. JANAVS: The way it was applied in this case is not sufficiently—cannot—well, in other words, the way the rule was applied in this case the members did net have sufficient notice in order to become eligibile under that rule, and also to determine whether or not they were eligible under the rule. THE COURT: All right. MRS. JANAVS: That is part of the case. We do know only 36 qualified by actual attendance. MR. GOTTESMAN: I wouid like to clarify one thing so a misconception doesn’t creep in. [142] The stipulation recites that the Company’s de- partmental records show what hours were worked by each employee and these were checked by the Election Commit- tee and determined which of the nominees were entitled to credit during the nights the meetings were held. MRS. JANAVS: Those showed only nine hours, eight hours, six hours on Saturday. We will be putting that in evidence so the Court will see what it shows. THE COURT: All right. Go ahead. I am probably ahead of the evidence. Go ahead. BY MR. GOTTESMAN: Q. We were talking about the computation of how many were eligible. Perhaps I can refresh your recollec- tion on something that was discussed there, Mr. Queen. Do you recall that we were told by one of the repre- sentatives, perhaps you, that an investigator of the De- partment had actually counted the meeting attendance lists to determine how many people actually attended 11 meetings and we were given figures representing the number of people who had actually attended 11 meetings. Do you recall that? A. I believe that our discussion there was the 11 in- cumbent officers had attended all of the meetings. [143] I believe that is right. That is all I recall on that par- ticular point, Mr. Gottesman. Q. Do you recall your investigator did check overtime records for certain individuals, namely, those that had oe nominated to run for an office in this election? Yes. ee — Q. And therefore, there were a group of about eight or nine people who were nominated and did not have enough meeting attendance and therefore your investiga- tor checked their overtime records, do you recall that? A. Yes. Q. Do you recall that on the people whose overtime records he checked he found some of those people had, in fact, been entitled to additional credit by reason of work- ing? A. Yes. Q. Do you recall that in four or five instances, depend- ing on how we resolved our dispute, it was found that when the additional credits were added to the meeting attendance the person got over the magic number of 11? A. That was true in two cases, I recall. Q. You don’t recall that there were—my recollection, and see if it conforms with yours—there were nine people whose records were checked. [144] Four of them, both the Union and the Labor De- partment agreed, were entitled to additional credits to put them on the ballot and, indeed, were put on the bal- lot, and a fifth person you claimed and we did not had received sufficient additional credit to warrant his being put on the ballot, and that being the person whom you mentioned in your direct testimony. A. The candidate for the Financial Secretary posi- tion. Q. And we had a dispute as to whether he was en- titled to credits since he worked until 1:00 o’clock? A. That is right. Q. No dispute about when the meeting started? A. That is right. Q. Of the nine persons whose eligibility you checked and who had not attended 11 meetings, either four or five, depending on how we resolved this dispute, had at- tained sufficient credit to get on the ballot by reason of work conflicts being added to their meeting attendance, do you recall that? A. I can’t remember the exact number. Q. Apart from those who had, in fact, been nominated, the Labor Department made no effort to check how many other people would have been eligible, isn’t that correct? 110 111 (145] A. That is true. There is a reason for it, too. The records for their overtime work weren’t available to us, either. . You do have the subpoena power under the Stat- ute, do you not? A. Yes. . Are you saying the Company did not have the rec- ords or that they did not voluntarily show them to you? A. It was my understanding the Company did not have the records. THE COURT: I don’t see how the Company could have a payroll without having the record as to who was working and when. You say they did not have them, is that right? THE WITNESS: This is my understanding, your Honor: The Statute requires the Union to maintain its records for one year after an election. But I don’t know of any requirement of an employer who has a require- ment—how long he has to retain payroll records and that sort of thing. THE COURT: I see. THE WITNESS: And this covered a two and a half year period. [146] THE COURT: I see. BY MR. GOTTESMAN: Q. Now, Mr. Queen, if there were nine people whose records your investigator wanted to check, and as to each of those nine he came back and reported from the Com- pany records, did he not? A. As I said, I don’t remember the exact number, but there were some, yes. Q. Did he report to you that there were any individ- uals whose records he sought to check, as to which he could not get the results? A. No, but I again am relying on my memory, and quite a few cases have gone before and since this time. I do not believe the employer had the records available for the entire period for all the members involved. Q. How did he check those that he checked? A. Well, they happened to fall into the period for which he kept their records. 112 . Mr. Queen, I show you a document which has been marked for identification as Defendant’s Exhibit T, and ask you if this is a copy of excerpts from a document entitled “U.S. Department of Labor; LMRDA Interpre- tive Manual”? A. It is. Q. Will you tell us when this document was [147] prepared? I mean not this particular piece of paper. I mean the Manual from which this is an excerpt. A. The Interpretive Manual is kept current by an- other segment of the organization and it has been revised from time to time. I cannot tell you when this particular page was written. Q. Can you tell us what the purpose of the Interpre- tive Manual is? A. The Interpretive Manual since about a year ago is available to the public under the Public Disclosure Act and it represents all of the statements issued by the De- partment on certain matters, including court decisions that are pertinent. Q. In addition to court decisions, it also states, does it not, matters of policy or judgment of policy by the Secretary of Labor as to the interprertation of the Stat- ute? A. Yes. Q. Now, what was its purpose prior to its being made available to the public? I gather it was in existence long before last year. A. Yes, from the very beginning of the Act there has been a skeletonized form of this Interpretive Manual. It is used for technical assistance in guiding [148] Union members and officers who seek advice ar@ assistance from us. I think it should be borne in mind each one of our area offices—we have 24 of them and five Regional Offices— are performing a dual function at all times. They are giving advice and guidance to Union members and Union officers who want to hold an election, as to what is ade- quate safeguards and what is a reasonable rule and when is it uniformly applied, as it relates to election matters. There are also sections of the Manual that deal with other titles of the Act, what reports have to be filed, by 113 whom they have to be signed, when they have to be sub- Q. Now, the specific excerpt which we have identified as Exhibit T deals with the question of eligibility require- ments to run for Union office, is that not correct? A. Well, as it relates to attendance and previous experience requirements. Q. Right. A. Yes. _ I eall your attention specifically to Paragraph 422.206, entitled “12 OF 24 MEETINGS MAY BE REA- SONABLE” and ask you whether that paragraph and the two [149] paragraphs within it are still currently a part of the LMRDA Interpretive Manual? A. I don’t know of any provision that has taken this out, but this has a caveat in it. It provides: “It might well be unreasonable, however, in cir- cumstances in which attendance presented an un- usual degree of difficulty for a significant propor- tion of the membership; for example, where the Lo- cal had an extensive geographical jurisdiction,” Q. As to that caveat, I wanted to ask you, is it not a fact that perhaps uniquely as to the Steelworkers Union its membership does not have geographic problems since each client has a separate Local Union? MRS. JANAVS: I will object to that. That is men- tioned as only one example where such might be unrea- sonable. There might be other factors, by the very lan- guage of the Statute, that might also make the require- ment unreasonable. This question is immaterial and ir- relevant. THE COURT: Well, I’ll let him answer it if he can. MR. GOTTESMAN: Let me rephrase it. THE COURT: Which paragraph are you [150] re- ferring to? THE WITNESS: This one right here, your Honor (indicating ) . MR. GOTTESMAN: Let me rephrase it so it isn’t quite so argumentative. Q. The second paragraph of Section 422.206 refers to unreasonableness where attendance presents an unusual — 114 degree of difficulty for a significant proportion of the membership, such as an extensive geographical jurisdic. tion. Wes it your judgment, as the result of your investiga. tion of this case, that this case presented that kind of unusual degree of difficulty in attendance at meetings? THE COURT: You mean the geographical problem? MR. GOTTESMAN: Well, geographic or otherwise, Q. Did you find, in other words, the kind of exception this paragraph applies to generally, namely, circumstances in which attendance presented an unusual degree of dif- ficulty for a significant proportion of the members? A. I don’t think that entered into any of our prelim- inary considerations of the case or even in the dis- [151] cussions we had with the Steelworkers back in Washing. ton. I think the point that was made was simply that where there is a large segment of the membership finding them- selves vnable to meet the meeting attendance requirement, then “nat is an indication that in this particular case, based on impact, the rule is unreasonable. THE COURT: Now, that is where I have the diff- culty in following you. When you say that the point was made that where a large segment are unable—are unable to meet the requirement. THE WITNESS: Yes. THE COURT: Whom did you find was unable? Aren’t you concluding that because only 20 per cent or 36 actually in attendance, are you concluding from that the rest of them were unable to meet it, and if so I don’t follow it. THE WITNESS: No, I don’t think we came to that conclusion, your Honor. Maybe a better way of stating it, a large segment did not meet the attendance requirement. I don’t doubt that some of these people didn’t meet the meeting attendance requirement in some of these cases because of lack of interest maybe. THE COURT: I would think so. Did you find any- body that said they were unable to meet the [152] re quirements? — 115 THE WITNESS: No, sir, but we found people who said they didn’t know what the requirements were. THE COURT: But that doesn’t make them unable to meet them. Maybe they didn’t make any inquiry. Is the Union bound to be sure that every member knows what the re- quirements are? They only have to take reasonable pre- cautions, don’t they? They have to make a reasonable effort to show that everyone—I mean to make it possible for them to learn. Some of them are not interested at all. THE WITNESS: I think that is true. THE COURT: The fact that they say they didn’t know what the requirements were, that doesn’t mean too much to me. If they said they tried to find out and said what they did, in an effort to find out what they were and they couldn’t find out, that is entirely different. But when a man says, “I don’t know what the requirements were” that doesn’t mean too much, unless further the in- quiry is made as to, “What effort did you make to find out about it?” and also to show that the Union didn’t make any effort to educate their people as to what the requirements were. There has been some evidence on that so far. [158] But when you say there was a large segment un- able to meet them, why, there is nothing here, unless you are going to offer something, and from what you say there isn’t going te be anything further on that point. It isn’t a question of their being unable. There is no evidence, is there, that any of them were unable to meet it? THE WITNESS: I have none. THE COURT: All right. BY MR. GOTTESMAN: Q. In addition you have no evidence that attending presented an unusual degree of difficulty, except for those who were working? A. That’s true. THE COURT: I mean I can understand your conclu- sion, but I don’t know whether it is based on sound prem- 116 ise, when you say that anybody was unable or had diff- culty in doing it, just because a goodly number didn’t qualify. All right. Go ahead. BY MR. GOTTESMAN: Q. Now, referring you to another paragraph in Ex- hibit T, Paragraph 422.250, “PARTICIPATION IN UNION AFFAIRS”, is this paragraph still a part of the Manual or has it been withdrawn? [154] A. I have no knowledge that it is not still a part of it. I think it is. Q. The first sentence of that paragraph provides, does it not, that under ordinary circumstances the Department will not consider unreasonable “Qualifications reasonably designed to assure that candidates have participated in the affairs of the Union and are sufficiently familiar with the industry in which the Union operates”? Is there any claim in this case or has the «yer advanced in the meetings we have had with them a claim that the meeting attendance requirement does not suit that criterion in general, namely, that it is a “Quali- fication reasonably designed to assure the candidates have participated in the affairs of the Union”? A. In general? No. Q. Indeed, does the Department acknewledge, and has it not done so in many cases and in many letters to people who so ask, that the meeting attendance reqvire- ments do fall into the category referred to here? A. That is generally true, Mr. Gottesman. A qualifi- cation like meeting attendance serves a useful purpose when it can and is being met, but as we pointed out to the Steelworkers representatives in the meetings you at- tended there, the purpose—the stated purpose—[155] the purpose stated by Mr. Kleinman, in having the meeting attendance requirement in the Steelworkers Constitution, in the first place, is defeated in some cases where you have members permanently assigned to a shift that keeps them from coming to any meetings at all. In other cases, where you rotate so that the same mem- bers are on a work shift at the same time the meetings — were held, because those members never attend any 117 “tg who is more qualified in a case like that, a man that comes to five meetings and doesn’t come to any more because of lethargy or the man who comes to none be- cause he is working. So you can have a self-defeating situation in the way you apply your qualifications. _ Mr. Kieinman, in addition to mentioning the de- sire to have people who are experienced and understood matters, named some other reasons for the Union’s adop- tion of this rule, did he not? Specifically did he refer to the Union’s desire to en- courage attendance of members at its meetings? A. To encourage interest in Union affairs. Yes, he mentioned that. Q. Did he also not mention the Union’s desire that those that seek office in the Union have demonstrated, [156] not only knowledge of its affairs, but an interest in its affairs, as well as prior attendance at meetings? A. Yes, he did. _ Now, Mr. Queen, I show you Defendant’s Exhibit Q, which has been marked for identification, and I ask you if you can identify the serer and the recipient of that exhibit, please? THE COURT: Is there any question about it? MR. GOTTESMAN: No. THE COURT: There is no issue about it, is there? MRS. JANAVS: The only objection I have is on the relevancy because again the law provides that a specific Union election has to be challenged— THE COURT: But there is no issue about who the sender was? MRS. JANAVS: No. MR. GOTTESMAN: No, I just want him to explain who he is and what his function is. THE COURT: He has already mentioned him as be- ing at the meeting. THE WITNESS: The addressee is United States Sen- ator Jacob K. Javits of New York and the sender is Frank M. Kleiler, Director of the Office of Labor- [157 ] Management Welfare Pension Reports. 118 BY MR. GOTTESMAN: Q. Is Mr. Kleiler the principal administrative officer in charge of administering the Landrum-Griffin Act— A. Yes. Q. —under the Cabinet Officer and his deputies? A. Yes, he is. I beg your pardon. We should make a distinction there, Mr. Gottesman. Mr. Kleiler is the head of one office under the Assistant Secretary, who is the Administrator. He is the one to whom the Secretary has delegated authority to file suits in the Secretary’s name, and that sort of thing. But within the office of Labor-Management Reports Mr. | Kleiler is the Director. I think we ought to make that : distinction. Q. Now, this letter refers to another lawsuit pending at the time it was sent, which I assume is captioned Wirtz v. Lodge 1085 of the Brotherhood of Railway Carmen of | America, is that correct? A. Yes, that is what it states. MR. GOTTESMAN: Incidentally, I might state for | the record that by stipulation of the parties the date [158] that appears on this typing of the letter is Decem- ber 5, 1967. That was an error in typing by the Depart- ment. It should be December 5, ’66, and that is the date that appears on the letter originally sent. Q. This letter recites, does it not, that the Department is going to withdraw that lawsuit? MRS. JANAVS: Your Honor, I will object to this line of questioning, first of all, because the document speaks for itself. If counsel seeks to introduce it, I will object, that it is not material and relevant. It deals with a completely different Union and we don’t know what the circun- stances in that case were at all. And also, as I started to say before, the Act allows the Secretary to challenge a particular election only. And we have to consider what the circumstances were in that particular Union at the particular time of that election. Therefore, these other letters dealing with different cases and, in fact, different Unions even, certainly, are not material and relevant to this case. ee A PTD 119 THE COURT: How is it material, Mr. Gottesman? MR. GOTTESMAN: In the next to the last paragraph of the letter on page 2, the letter refers to “a general review of attendance requirement as a quali- [159] fica- tion for office holding was held by the Secretary of La- ys “i then recites that it had now been determined that the fact that only a small percentage attended the meet- ings was no longer to be considered a significant factor in deciding whether the rule was reasonable, giving as the reason precisely the one your Honor gave a moment ago, since everyone can’t attend, the fact that some do not choose to do so should not be held against the Union. THE COURT: You are referring to this in order that—in support of a general statement made by the Labor Department, is that what you are saying? MR. GOTTESMAN: I would like to establish the fact that the Secretary of Labor made a determination— made “a general review of attendance requirements” and restated the determination that a small percentage of attendance was not a relevant and significant factor. That determination was made by him approximately a few months prior to the filing of this lawsuit—ap- proximately a year prior to the filing of this lawsuit. I would then like to argue from that the Secretary of Labor is really an administrative agency under this Stat- ute. He has to make probable cause findings, and that we are entitled to establish by evidence [160] what his prior findings and decisions have been, and to argue that they are entitled to some—relevance is not the right word, but that they carry some weight in interpreting how the Statute should be administered by a Court. They are ob- viously not binding on the Court. THE COURT: Well, if the facts and circumstances were not the same—-you just want to show that he made this observation— MR. GOTTES MAN: The statement here— THE COURT: —in a previous case? MR. GOTTESMAN: No, no. The statement here does not relate to a specific case. It says he has made a gen- eral— 120 THE COURT: Oh, I see. MR. GOTTESMAN: I don’t care about that) specific case. I care about his general review and new determi. nation, which is stated as a general rule. 91 THE COURT: What are you referring to, this quoted portion down here (indicating) ? MR. GOTTESMAN: No, it is the entire next to the last paragraph, which commences “Subsequent to the jp. stitution of this action, .. .” THE COURT: I see. All right. MR. GOTTESMAN: It is that entire paragraph. [161] MRS. JANAVS: I think the last paragraph js quite relevant in this connection, if the previous para- graph is. THE COURT: Are you offering the whole letter? MR. GOTTESMAN: I haven’t offered the letter yet I just want to find out whether the determination was made and who made it, after which I will offer the letter as evidence of the— THE COURT: All right. Objection is overruled for the time being. MRS. JANAVS: I don’t think we have a foundation that this witness is in a position to answer. THE COURT: Well, maybe he isn’t. He can say if he doesn’t know. BY MR. GOTTESMAN: Q. Mr. Queen, are you familiar with a meeting being held or a review being held, as described in this letter? A. No, I am not. Q. Totally unaware of that? A. Yes. Q. Were you ever advised by any of your superiors that henceforth percentages were not to be considered relevant to determining whether a rule was [i62] rea- sonable? MRS. JANAVS: I will object to that question because that misstates what it states here. It simply says that the meeting attendance solely. will not be considered. In other words, there will be other factors and this will be considered in connection with the other factors. 121 MR. GOTTESMAN: I’m sorry. Let me rephrase the ion. oC Were you ever advised, in substance, what appears in next to the last paragraph of this letter? A. I think that we should bear in mind that this letter was written in 1966 and that in 1968, when we had our frst meeting with you and the other officials of the Steel- workers in connection with this and the other cases Assistant Secretary Donohue made the statement that the policy of the Department then was that we would not consider a meeting attendance requirement unreasonable se, but we would consider it unreasonable on impact, here in a particular case a large segment of the member- ship did not meet the meeting attendance requirement. Q. Isn’t that precisely what this paragraph says, if it accurately reports the Secretary’s decision or determina- Q. December of 1966. THE COURT: You say the policy changed? THE WITNESS: That policy, your Honor, was changed. THE COURT: All right. BY MR. GOTTESMAN: Q. Can you tell us—in other words, prior to this time the policy was to regard the small percentage a factor which would make a rule unreasonable? A. This came up when we were trying in the Depart- ment, and it was the Secretary’s level that was trying to make the decision, whether we could say a requirement was unreasonable per se. This is in 1966. Q. Unreasonabie per se because only a small percent- age met the meeting attendance requirement rule? A. That is right. Q. And it was concluded that you would not say that? A. That is right. Q. The mere fact that only a small percentage quali- fied would not make the rule unreasonable? 122 THE COURT: That is what he says. [164] MR. GOTTESMAN: I thought he said he had not been aware of it. THE COURT: No. He said that was the policy estab. lished in 1966. BY MR. GOTTESMAN: Q. Now, are you familiar with the percentage of the members who had met the meeting attendance rule in the lawsuit which was withdrawn, pursuant to this letter? A. No, I am not. Q. Had you conducted the investigation of that case or headed up the investigation? A. I supervised—had the same position then as I have now, but I am not familiar with that case. Q. Do you recall whether the percentage was less than ten per cent? A. No, I don’t. Q. Now, has this policy that you just stated was changed to in 1966 itself subsequently been changed? A. It was changed in 1968, as Mr. Donohue ap- nounced at the meeting held with the Steelworkers. Q. It was changed after the conduct of the elections that are—this election, is that correct? A. It was announced at that time. It was under study during that period, during the fall of 1967. [165] Q. You say it was under study? A. Under study. Q. Do you recall approximately when the Railway Carmen case was withdrawn? A. No, I do not. Q. The letter of December ’66 said it was to be done as soon as appropriate papers could be prepared. Does that refresh your recollection as to when it actually was? A. No, I couldn’t tell you. Q. Is it a fair statement at the tirie these elections were conducted, the last announced statement of the Sec- retary of Labor was that small percentage did not in- validate a rule? MRS. JANAVS: Which election? — 123 MR.GOTTESMAN: The election under review in this case, 1967. @HE WITNESS: I don’t know. THE COURT: As I understand it, you said in 1968 the policy was changed to the effect that if you found a very few qualified to run, why, you conclude that there was reason to believe that the atendance rule was un- reasonable. THE WITNESS: Unreasonable, yes. THE COURT: All right. [166] THE WITNESS: On impact. THE COURT: When you say “on impact” what do you mean? THE WITNESS: Well, we mean that—I’m trying to recall the language that the Assistant Secretary used in explaining it to the Steelworkers. We will not say a meeting attendance requirement for a one, two or three-year period was unreasonable per se, but where, in a particular case, a large segment of the members were unable to meet the— THE COURT: Now you are getting into trouble in, when you say “unable to meet”. THE WITNESS: I should say did not meet. THE COURT: When a large segment did not meet the qualifications of meeting attendance, then what? THE WITNESS: Then it is unreasonable. THE COURT: Then the rule of attendance %s“un- reasonable? THE WITNESS: Yes. THE COURT: That is exactly what I said. Then you added “on impact” and I wanted to know what you mean by “on impact”. THE WITNESS: I beg your pardon. THE COURT: All right. Go ahead. [167] BY MR. GOTTESMAN: Q. Mr. Queen, in your judgment and based upon your experience are meeting attendance requirements an un- usual qualification to be found in Union Constitutions? A. Unusual? Q Yes. sea! ASIII SOTTO MER Re eee ee a oo 124 MRS. JANAVS: I will object to that unless we have foundation that this particular witness has done a sti on that. We do have an expert who has worked specifically on this kind of thing, and this will be produced in ey. dence. THE COURT: Well, do you know whether that is, normal requirement for candidacy, meeting attendance in Unions generally, from experience? THE WITNESS: The larger number don’t require a meeting attendance requirement. THE COURT: But some do? THE WITNESS: Yes, some do THE COURT: All right. Go ahead, Mr. Gottesman, MR. GOTTESMAN: Let me move the admission of Exhibit Q solely for the purpose of the description the determination—the Secretary of Labor’s review and de- termination made at that time, and not for the purpose of getting into the issues described in the specific [168] lawsuit referred to there. THE COURT: Any objection? MRS. JANAVS: Yes, your Honor. I do object. I am not sure the two can actually be divorced one from the other. I think it is indicated in that last paragraph—the writer of the letter indicated that he still had to consider the particular circumstances of a particular case. THE COURT: The objection is overruled. Q is ordered in evidence. [169] MR. GOTTESMAN: I will offer in evidence De- fendant’s Exhibit O. * * * e THE COURT: What is the date of 0? MR. GOTTESMAN: October 12. ’67. * * * * [174] Q. Mr. Queen, just a few more questions. Your letter to Mr. Abel which you referred to, Plaintiff's Ex- hibit 9, I believe, do you have that there with you? This letter purported to state to the Union—I don’t know if you call it preliminary findings, but your findings as 125 of that date with respect to possible violations of the Act, is that not correct? A. Correct. _ L refer you to Paragraph 4. THE COURT: What exhibit is this? MR. GOTTESMAN: Pilaintiff’s Exhibit 9, your Hon- or. Q. That recites the application of the meeting attend- ance requirement to Local 6799 “resulted in approxi- mately 98.7% of the active membership being ruled in- eligible”, do you see that there? Y A. Yes. Q. In light of what we have discussed today, that is not necessarily an accurate figure, is it, in that you have not checked the eligibility of most of the [175] members of the Union with respect to credit for work? A. I think it is an accurate statement even now. They were ruled ineligible at the time of the election. Q. Who ruled? Did the Union rule the vast majority of its members ineligible or did it not have occasion to rule one way or the other, since they were not candidates? A. I think if you are using the candidate test, they didn’t have the opportunity to rule on them as candidates, but only 6.3 per cent of the members could meet the meet- ing attendance requirement. THE COURT: On what is that based? We discussed this before. On what is that based ? THE WITNESS: Based on the number of meetings that the Union had credited them with attending and the work credits they were entitled to receive. THE COURT: Now we are back where we were be- fore and with some problems, I think. You are saying now there were 6.3 of the membership eligible, including those who were eligible by reason of credits for work absences, that is what you are saying? THE WITNESS: Yes. THE COURT: Now, just a few moments ago [176] we got into a controversy and the testimony was there were only 36 who were eligible by reason of actual at- tendance, and that the rest of them were not checked, only reason of proper excuses, and the reasen they were not checked, to determine whether they would be eligible by 126 reason of proper excuses, and the reaso nthey were not checked, I understood, was that the records were not available. Now, what is correct? I would like to know about this, THE WITNESS: I think it is correct to say that the Union could not show more than 6.3 of its membership at that time could meet the meeting attendance require- ment. BY MR. GOTTESMAN: Q. Mr. Queen, when you said the Union could not show, when you wrote this letter you had not asked the Union to show anything, had you? A. When I wrote the letter, Mr. Gottesman, I indicated in the second paragraph; “The investigation thus far conducted establishes probable cause to believe” that thus and so took place in the election. Then I asked for the Union’s comment by December Ist and I got no reply to this letter at any time. [177] We has several conferences but no reply to the letter. Q. The conferences were a reply, were they not? The Union stated its position, did it not? A. Well, to some of these matters they stated a reply. Q. Did not the Union tell you that—I should say, wasn’t there a comparable paragraph to this in the letter that you wrote with respect to each of the Local Unions involved, namely, one which recited a percentage figure based on those whose records were checked? A. The other Steelworkers Locals? Q. Yes. A. Yes, there was a similar— Q. Right. And didn’t the Union tell you at our general meeting that that figure overlooked the vast majority of the members who had or might have worked because you had not checked their overtime records? — the Union tell you that at our general confer- ence A. Yes, and I think we told the Union it was incum- bent upon the Union and not on the employer to devise some kind of a method to have an overtime record so that they could determine eligibility. 127 Now you have isolated. One of our issues [178] of difference was whether or not the Union was required to keep overtime records, in addition to the employer keeping them, is that right? A. Well, yes, but don’t you also recall that we made the point in the conference that the Act requires the Union to retain records of an election for a year, but there is nothing that requires the employer to keep these overtime records for any period of time he doesn’t want to keep them, so far as I know. In any event, this paragraph is directed not to who should keep the records, but how many people, if not quali- fied, could qualify if they sought to run? A. That is right. Q. And announced to us your preliminary determina- tion that only 6.8 per cent could qualify or could have qualified if they had so desired, is that right? A. Yes. THE COURT: Now, this 6.3 per cent is the 36 em- ployees referred to before as all having had actual at- tendance records to qualify, isn’t that right, Mr. Queen? MR. GOTTESMAN: I think it is those plus five more the Labor Department had found. That was nine that they checked. [179] THE COURT: If you take 6 per cent of the 600—they didn’t have 600 members. MR. GOTTESMAN: Right. THE COURT: You take 6 per cent of 600, why, you have 36 and if you are talking about 570 at 6.3, as I see it you are going to arrive at 36, and these 36 are the ones who had actual attendance sufficient to qualify. I haven’t heard anything yet about these checks about others, except to some nine you referred to, Mr. Gottes- man, whose records were checked, either by the Union or by the Labor Department. The evidence at the present stage appears to me that they found that a certain number were eligible by actual attendance and there were no checks made on the others, but because there was no showing of eligibility of more than this 86, why, the Labor Department concludes that is an unreasonable rule, isn’t that it? And your position is that the burden was on the Union 128 to show, if there were more eligible by reason of ex that it was their burden to tell you about it? THE WITNESS: Yes, your Honor. THE COURT: And as long as there were only 36 that they told you were eligible, why, therefore [180] you had a right—your position is you had a right to conclude that rule was unreasonable,— THE WITNESS: Yes, your Honor. THE COURT: —although it is possible every one of them didn’t want to attend. THE WITNESS: True. Q. Mr. Queen, at any time prior to the institution of this lawsuit, did the Secretary or any representative of the Labor Department advise the Union that the Secretary believed the Union had placed on the ballot a candidate who did not belong on the ballot? A. Prior to the— Q. Prior to the filing of the lawsuit. A. Not that I am aware of. [188] JOHN M. GADD, a witness called on behalf of the plaintiff, having been first duly sworn, was examined and testified as follows: BY MRS. JANAVS: Mr. Gadd, where are you employed? Howmet Corporation in Pomona. What is your position with that corporation? Assistant Controller. [190] THE WITNESS: Then there is overtime rec- ords that are posted out in the shop by each department, under agreement with the Union. THE COURT: Who has control of those records? Does the Union have those? THHE WITNESS: Yes, they are available to the Un- ion. We keep them to make sure that there is no discrimi- nation as far as overtime is concerned. Pore = [198] Q. What is the purpose for these records, now? A. This is a departmental posting so that any em- yee can check his overtime or any other employee’s overtime in that department, to determine if he has had an equal share of overtime assignment. (204) THE COURT: Were the swing shifts working overtime the greater period of the year, would you say? THE WITNESS: Which year, sir? THE COURT: Or could you tell me? THE WITNESS: Yes. THE COURT: They would be working overtime more times than not? THE WITNESS: Up until the beginning of [205] this year our plant—both shifts have worked overtime, as a general rule. ” * oJ * TRIBUNE C. LIO, a witness called on behalf of the plaintiff, having been first duly sworn, was examined and testified as follows: [222] Q. Now, are you absolutely certain about the rule the Election Committee agreed upon as to how you were going to check—how you were going to handle a person who worked until 1:00 o’clock when the meeting started at 1:00? You stated it was your recollection you were going to give him credit if he worked until 1:00 and the meeting started at 1:00. A. Yes. Q. Are you certain of that? A. Yes, I’m real certain. I mean, it was as simple as that. THE COURT: You mean if he worked until 1:00 o'clock and the meeting started at 1:00, why, then you say he was working at the time because he had 15 minutes to get to the meeting? THE WITNESS: Yes. THE COURT: Is that your theory? 129 130 THE WITNESS: Yes. This was agreed on by all the tellers. In other words, we had this one [223] simple rule. [233] OTTO K. FEENSTRA, a witness called on behalf of the plaintiff, having been —— duly sworn, was examined and testified as ollows: Q. Mr. Feenstra, were you a member of Local 6799 Steelworkers Union during the period August 1965 to July 1967? A. Yes, I was. Q. With respect to June 1967 elections of were you a member of the Election Committee in those elections? A. I was the Chairman of the Election Committee, yes, ma’am. a [247] Is it not correct that there were four candidates for office that the Election Committee ultimately found not to be eligible, and they were Redman, [248] Glenn Ross, George Pruneri and Elmer Husmann? A. That is right. Q. Now, as I understand, each of these persons re ceived from you a letter,— A. That is right. Q. —stating he was ineligible, indicating he had ten days to advise you if he disagreed, is that it? A. That is right. We went by the Manual on that. Q. Now, did any one of these four persons contact you during that ten day period and disagree with your determination? A. None at ail. Q. I gather the ballots were then printed on the basis of those you had found eligible? A. Right. Q. Now, I also understand, forgetting these four people for the moment you found not eligible, there were others, who after checking the overtime records, you found to be eligible, is that right? 181 A. That is right. @. And who had not been eligible strictly on the basis of the attendance records? A. That is right. [253] MARVIN D. WRIGHT, a witness called on behalf on the plaintiff, having been previously duly sworn, was examined and testified as follows: a a e * [264] Q. Were you present at the nominating meet- ing? A. Yes. Q. Can you tell us how it worked, did the Chair call for nominations? A. This is to the best of my knowledge. The Chair called for nominations and somebody nominated you and [265] then I think right then they give you a chance, you know, to decline if you want to. Q. When they called for nominations they didn’t limit who could be nominated of those that were eligible? A. No. Everybody was eligible, as far as they were concerned. Q. Anybody could be nominated, have his name placed in nomination? A. Right. Q. And then you say some people on the spot, after their name was placed in nomination, declined? A. Yes. ” = = a [268] Q. Now, if you had not declined—suppose you had not said at the meeting, “I decline,” what would have happened then? A. I would have been checked out, like the ones that didn’t decline that was checked out. Q. If upon being checked out it was found you had enough credits you would have appeared on the ballot? A. That is true. Q. And if it were checked out and it was found you 182 did not have enough credits you would have not [269] appeared on the ballot? A. That is true. [271] MELVIN W. SCRUGGS, a witness called on behalf of the plaintiff, having been first duly sworn, was examined and testified as follows: ([277] THE COURT: Did you always sign the register | when you went in? I thought you said you did. THE WITNESS: I don’t think I ever missed signing. THE COURT: You signed it. Had there been in- structions that members should sign the register? THE WITNESS: At the first—when the Union first started I don’t recall, but I do recall that later on that more than one time that the President of the Union said from the Chair, “It is imperative that you sign the [278] register because it will be used as a requisite for run- ning for office.” * * * = [279] Q. You do recall definitely, though, that at this time, whenever it was, that the President made the an- nouncement, that he specified that the attendance regis- ter would be used for purposes of determining attend- ance for candidates? ; A. Yes. [281] Q. Do you recall roughly how long meetings generally would last? Give us as good an estimate as you can. A. Id say probably about two hours. - . * = [303] HERBERT J. LAHNE, a witness called on behalf of the plaintiff, having been previously duly sworn, was examined and testified as fol- i lows: THE CLERK: Please be seated. ! Will you state your name, please? 133 THE WITNESS: Herbert J. Lahne, L-a-h-n-e. THE CLERK: Thank you. DIRECT EXAMINATION BY MR. DONOGHUE: Q. By whom are you employed? A. U.S. Department of Labor. Q. What is your present position? A. I am Director of Division of Research, Labor- Management Services Administration. Q. How long have you held this position? A. Under different organizational setups since 1959. Q. What type of work does this Division perform? A. We do research in the field of Union structure, administration, welfare, pension plans and anything [304] that is requested by the Assistant Secretary under whose supervision we happen to be. Q. This includes work in connection with the Labor- Management Reporting Disclosure Act? A. It does. MR. DONOGHUE: Your Honor, we have attached to the list of plaintiff’s witnesses a summary of Mr. Lahne’s experience and educational background. At this time to avoid any delay, we would like to offer that as an exhibit. MRS. JANAVS: 19. MR. DONOGHUE: 19. MR. GOTTESMAN: No objection. THE COURT: 19 is ordered in evidence. (Document marked Plaintiff’s Exhibit 19 was re- ceived in evidence. ) MR. DONOGHUE: At this time, your Honor, I would like to move that Mr. Lahne be qualified as an expert in labor relations. THE COURT: Any objection. MR. GOTTESMAN: Your Honor, I’m not sure what an expert in labor relations is. We will certainly stipulate Mr. Lahne is an expert in 134 those areas in which his qualifications, as described jp Plaintiff’s Exhibit 19, relate. [805] THE COURT: Very well. All right. You may proceed. MR. DONOGHUE: I would like at this time to haye marked as Plaintiff’s Exhibit 15 a chart showing a study of 72 National Constitutions. THE COURT: Very well. 15 for identification. (Document was marked Plaintiff’s Exhibit 15 for identification. ) MR. DONOGHUE: May that be handed to Mr. Lahne, please? (Exhibit placed before the witness.) BY MR. DONOGHUE: . Mr. Lahne, referring to Plaintiff’s Exhibit for identification 15, could you identify this document and tell us what it is? A. Yes, sir. This document was prepared under my direct supervision in my office, and as the title indicates it shows for 72 National Unions the provisions in those Union Constitutions relating to attendance requirements as a qualification for nomination or election to Local of- fice. The date is shown as of June 1967. Q. That is the date of the election in question? A. That is what I understand. [806] MR. DONOGHUE: I would move now, your Honor, that Plaintiff’s Exhibit 15 be admitted. MR. GOTTESMAN: No objection. THE COURT: 15 is ordered in evidence. (Document marked Plaintiff’s Exhibit 15 was re ceived in evidence. ) BY MR. DONOGHUE: Q. Now, Mr. Lahne, would you explain in your own words exactly what the chart shows? A. Yes. This chart in its first column at the left gives the name of the Union in a short form. The second column gives the date of the provisions an- alyzed, which are in effect as of June 1967. 135 The third column shows the number of members in each of the Unions so named. The last two columns show the attendance requirements in each of these Unions, if there are any such require- ments. There are two columns, the two last columns show the number or percentage of meetings which is specified in the Constitution to be required, and the last column shows the number of months over which that attendance must be achieved. Looking at the—do you want me to point out the va- rious highlights of the table at the present [307] time in terms of what it shows? Of the 72 National Unions here, which comprise 90 per cent of the Union membership in the country, of these 72 56 of these Unions, with 68 per cent of the member- ship, have no provisions requiring attendance at meetings to be eligible to run for office. Four of the Unions, with 7 per cent of the Union mem- bership, give the Local Union an option as to whether or not they have a meeting attendance requirement. And just 12 of the Unions, with 25 per cent of the membership, have a mandatory provision requiring candi- dates for Local offices— THE COURT: You said 25 per cent? THE WITNESS: 25 per cent of the membership, yes, sir. 12 Unions, with 25 per cent of the total member- ship, have provisions which require— THE COURT: Mandatory? THE WITNESS: —attendance at meetings. Now, these requirements vary somewhat, but I will just refer to the period of time required to fulfill the requirement. Of the 12 Unions, four of them allow the requirement to be fulfilled in six months. Two of them have the re- quirement subject to fulfillment in one year. [308] Three of them provide a two-year period over which the require- ment must be fulfilled. And two of them specify that there is a three-year period. THE COURT: Is this one of them, the Local here? THE WITNESS: The Steelworkers is one of the three-year Unions. 136 THE COURT: One of the two— THE WITNESS: I’m on three years now. Four of them are six months. THE COURT: Yes, I understand that. Two with a year, three with two years and two are three years, THE WITNESS: Two are three years. THE COURT: Now, I asked you— THE WITNESS: The Steelworkers is one of those two for three years. THE COURT: All right. What about the other one? THE WITNESS: There is one left, and that is the Boilermakers. They don’t specify the period. They simply say that the member must attend such meetings as the Local By-Laws require. That accounts for the 12 Unions which are on this table as having mandatory require ments. [309] MR. DONOGHUE: We have no further ques. tions at this time, your Honor. THE COURT: Very well. CROSS EXAMINATION BY MR. GOTTESMAN: Q. Mr. Lahne, do I correctly understand that this table shows only those provisions that appear in the Con- stitutions of International Unions? A. That is correct. Q. In compiling this table, was that the only source which was looked to? A. That is correct. Q. In other words, if the Union has a standard By- Laws, which are to become binding on each of its Local Unions, which is a document separate from its Constitu- tion, that was not looked at— A. I’m sorry. I would like to correct that. We looked at all the documents. We considered that those standard By-Laws are part of the National Consti- tutions. Also I might say these Constitutions were submitted under the requirements of the Landrum-Griffin Act, with which I am sure you are familiar. In some cases the Con- , mei temy ol _ 187 stitution itself was submitted for an earlier [310] year and supplemented by the annual reports that these Un- ions are required to make. So that in some cases it is a combination document, a printed Constitution plus the annual report which the Union is required to make when it changes its Constitution. In other words, the Union may not choose to reprint the entire Constitution, say, in 1967 when it has only one change over 1965. So we use the 1965 Constitution, plus the documents submitted to the Department of Labor in- dicating the change in 1967. _ Now, Mr. Lahne, you did not in preparing this table look at any provisions which appear in Local Un- ions’ own Constitutions or By-Laws? A. We did not. Q. This is a chart that deals with eligibility require- ments for Local Union elections, is that not right? A. That is correct. Q. Having in mind your position as an expert in this field, you do know that there are at least some Local Unions that provide such requirements in their own By- Laws? A. Yes, I do. Q. Did you make any effort to ascertain how many Local Unions having how much membership have their provisions in their own By-Laws? (311] A. I did not. Q. Do you have any basis to make an estimate as to how many Local Unions? A. You mean of the total Local Unions in the country? Q. Yes. A. Only my some 30 years looking at Local Union Constitutions in other connections and dealing with Lo- cal Unions, speaking to Local Union members and officers. Q. No systematic effort has been made to determine— A. No systematic effort has been made to tabulate the total number of Local Union Constitutions, which is in the neighborhood of 45,000—I’m sorry, there are some 45,000 Local Unions, and there has been no systematic tabulation by anyone of the requirements in these Consti- tutions in this regard. Ce PI RO BN 5 = Pl ae 138 THE COURT: Then of the 68 per cent of the mem- bership, wherein the International does not provide for any attendance requirement qualifications for runni for office, we don’t know whether—maybe all of those Local Unions do provide for it and maybe none of them do, we don’t know. THE WITNESS: Yes, your Honor, that is correct, we do not know the exact—an exact figure. It [312] is entirely possible some have them and some do not. BY MR. GOTTESMAN: Q. Now, I gather that means then for each Interna- tional Union which appears on this chart, with a little dash, signifying no provision in its International Consti- tution, that we are provided no knowledge as to how many, whether it be none, some or all of its Local Unions have on their own adopted a meeting attendance require- ment? A. That is correct. Q. Am I correct also in understanding that the only eligibility requirement with which this chart deals is meeting attendance? A. Correct. Q. Are there other provisions that appear in the Con- stitutions of some or all of the Unions here, which also qualifies the right of the members to run for office in the Union? A. Yes, sir. Q. Would you say at least some such provision ap- pears in the Constitutions of all the 56 Unions which do not have a meeting attendance requirement? A. I don’t understand your question. Some such what? Q. Are there at least some eligibility require- [313] ments, other than simply being a member of the Union? A. Yes, there are. There are some requirements which are practically universal in Union Constitutions. Q. Now, are there some requirements in at least some of these Constitutions which are intended to serve pur- poses comparable to those you understand the meeting attendance requirement to serve? 189 THE COURT: Let’s find out first what he under- stands the meeting requirement— THE WITNESS: I was just about to— BY MR. GOTTESMAN: Q, All right. Can you tell us, from your experience in this field, what you understand to be the purpose of the meeting attendance requirement? A. As I understand, the Union’s position as to meet- ing attendance requirement—I am not referring only to the Steelworkers but to other Unions which have it, and even the Unions that don’t have it who have di with me the desirability or undesirability of having it— there is the understanding or let us say the hopeful be- lief that attendance at meetings makes a member ac- quainted with Union affairs, so that if he desires to run for office he will have some knowledge of Union affairs and Union problems. (314) THE COURT: Now, then your next question. BY MR. GOTTESMAN: Q. The next question is, are there Unions on this list who have provisions other than meeting attendance provi- sions which are intended to serve that same purpose, namely, to assure we have officers who have some knowl- edge and familiarity with Union affairs? A. Well, it is a little hard to answer the question the way you put it. If I may refer to the universal, practically universal - qualifications for holding Union office, some of these might be so construed. For example, that a member be—a person be a member of a Local for at least one year is virtually a universal requirement. Now, I suppose the answer there would be that this could be intended to serve the same purpose. The second virtually universal requirement is the re- quirement that the member be in good standing. There is one which is not as universal but very common, that the member be employed at the trade. This is especially true in craft Unions. —o_,. 140 I think there may be one or two others, but there are about three possibly four qualifications which are univer. sal among the Unions. [315] As to the meeting attendance, as—I’m speaking of National Constitutions—it is not that common. There are other uncommon ones, for example, prior office hold. ing is an uncommon requirement, a very rare require- ment; more rare than even the meeting attendance re quirement. Q. But there are some International Unions that have a prior office holding requirement? A. I think there are only two. Q. Are those two on this list? A. Let me see, now. The Maritime Union was one and, of course, that case was litigated and the Maritime Union has now removed that provision, or at least— Q. At the time of this election? A. June ’67. I guess that is true at the time of June ’67, they did. The Garment Workers have such a provision but it is rather qualified. It can be avoided by attending a train- ing school in lieu of holding prior office. I think those are the only two offhand. I haven’t memorized all the Con- stitutions of all Unions. Q. To your knowledge are there any other provisions designed to assure qualifications, other than meeting at- tendance and these two you just mentioned and [316] those you have mentioned earlier? A. There are, for example, some Unions have a citi- zenship requirement. There are—in addition to positive requirements there are negative aspects. For example, criminals, Communists— THE COURT: He is talking about requirements that— THE WITNESS: Which qualify a person positively, in the affirmative sense. THE COURT: No. He is talking about requirements from which you could conclude the Union was insisting that the candidates have an acquaintance with the Union business. 141 THE WITNESS: I see. Yes, in that sense I think I have mentioned only those—period of membership in the Local is the primary one. THE COURT: Is there any requirement as to the iod of time the man must belong to the Union? THE WITNESS: I think that was litigated in one case where the time was five years and the Court consid- ered that to be too long for a Local office. THE COURT: There was nothing indicated as to what the Court felt was a reasonable period of member- ship? THE WITNESS: I believe the Court at that [317] time indicated that—I can only go by my memory—I think three years. I think the Court said possibly two or three years might be acceptable, but the Court didn’t lay down any rule, but they felt five years was too long. THE COURT: There has been no litigation of this period—of any period with respect to the attendance of meetings? THE WITNESS: Oh, yes, there has been litigation on that. I assume our attorneys will cite all the cases. Actually, the meeting attendance—in the Glass Bottle Blower cases. There are several of those. BY MR. GOTTESMAN: Q. Those cases involved a provision, I think, on your chart that the Local required attendance of 75 per cent of the meetings? A. In three years. Yes, I believe— THE COURT: And that was held to be too severe? THE WITNESS: Yes. The period of time,— THE COURT: Wasn’t it 75 per cent that was held to be unreasonable? THE WITNESS: Sometimes, your Honor, if you will excuse me, it is just a little hard to know just— [318] THE COURT: Did the Court say the three-year period was excessive? THE WITNESS: It was 75 percent two years and the Court simply said it was unreasonable. I don’t re- member any other details from the decision. THE COURT: All right. a 142 THE WITNESS: It may be that— THE COURT: There is an exhibit already in here— I don’t have the number of it—which refers to that case and says 75 per cent. MR. GOTTESMAN: Defendant’s Exhibit T, I believe, your Honor. THE COURT: “The Court concluded that the requirement of 75% attendance at Union meetings was too high when com- bined with a strict rule regarding excused absences which permitted a member to be excused only when he was required to work on the job while the meeting was being held. The Court also stated that a rule which, as in this case, limits the eligible group to 2.2% of the membership seems to be too harsh.” That certainly makes good sense, so far as I am con- cerned. [319] Q. —to your knowledge has any Court ever held a 50 per cent meeting attendance rule invalid? [820] A. I don’t recall any. But I will have to say again here— {[823] Q. Just one last question. As I look at this and look at the rankings of the Unions in the order of their members, am I correct in noting that the largest, the third largest and the fifth largest of the Unions on your table have a meeting attendance requirement of one form or another in the International Constitution? I’m referring to the Teamsters, Steelworkers and I be- lieve it is the Machinists. A. Well, I haven’t examined that. The [324] Team- sters and the Steelworkers, of course, I know to have a requirement. The Machinists have a Local option. MR. GOTTESMAN: I have no further questions. THE COURT: Anything further? 143 REDIRECT EXAMINATION BY MR. DONOGHUE: Q. Mr. Lahne, could you tell the Court why you looked at National Constitutions and not Local Union Consti- tutions? A. Because it was a National Union Constitution pro- vision which was involved in this case. Q. Based upon your expert opinion, would you think it would be likely for a Local Union Constitution to con- tain a meeting attendance requirement as a qualification of their right to be a candidate, absent a mandatory pro- vision in a National Constitution? A. I would think that only a minority of Local Unions will have such a provision if it is not required by the Na- tional Constitution. Q. In your opinion, would you say attendance at Un- jon meetings is necessary in order for a member to be- come knowledgeable about the affairs of the Union? [825] THE WITNESS: Yes, my opinion on the meet- ing attendance rule, I might say, might not necessarily be that of the Secretary of Labor. My opinion on a meeting attendance rule just happens to coincide with the Secretary’s but for different reasons. I believe the meeting attendance rule is not necessary to give the member a knowledge of what transpires in the Union and what the Union’s problems are, in order to become a better officer. BY MR. DONOGHUE: Q. Could you tell us what other way [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386413_0306%3A1. Public record. Not legal advice.