Opposition Brief — Hodgson v. Local Union 6799, United Steelworkers

INDEX

Page

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Counter-Statement of Questions Presented ................++5- 1

Counter-Statement of the Case ..............e eee eeee ee eeeee 2

A. The Failure to Protest the Reasonableness of the Meeting

Attendance Rule in the Union’s Internal Election Protest

NE cod pare Va bar ke te ceees oop eh Cekiieeksa bcs 2

B. The Merits of the Union’s Meeting Attendance Rule ...... 5

Argument ....... 0-0 cece cece cere eee e ener een eeereeneenes 9

ena a'dls 0d as ares ood bn Ae aes Mean OR ete ad Gad 19

CITATIONS

Cases

Shultz v. Local 1150, Steelworkers, S.D. Ind., Civ. Action No. IP

Ee AUD BMb COTO) ccs cctvoctcancepecescsacsssnes 8, 16

Shultz v. Local 1299, Steelworkers, 73 LRRM 2673, 62 Lab. Cas.

SE CEE OUND vrs nncssesepevinnvaschwsace beige 8, 16

Wirtz v. Hotel, Motel & Club Employees Union, Local 6, 391

Ee Sinan ede bhies baud ubaie en Geb aenh ah es he 18

Wirtz v. Local Union No. 125, Laborers’ International Union, 389

Tn ee ea ie wldih ate a Ml 9

Wirtz v. Local 153, Glass Bottle Blowers Ass’n., 389 U.S. 463 .... 11

Wirtz v. Local Union No. 169, 246 F. Supp. 741 (D. Nev., 1965) 13

Wirtz v. Local 174, American Federation of Musicians, 272 F.

SD, SOR MRED: 5s v's pias Ke paga were we ueneagene +s 13

Wirtz v. Local 257, Glass Bottle Blowers, 273 F. Supp. 746 (D.

ED ao twa Aeeane ska ropheenye hbehedeveNankaaae 13, 15

Wirtz v. Local Union No. 406, 254 F. Supp. 963 (E.D. La., 1966) 13

Wirtz v. Local Union No. 450, 63 LRRM 2105, 54 Lab. Cas.

ne. PED: vcascavechpuacsd ve dedetagenssss 13

Page

Wirtz v. Local 1377, IBEW, 63 LRRM 2029, 54 Lab. Cas. §11,391

BU, MII eiAccvsecgacepasatn\oacess<cscxestensanweae 13

Statute

Labor-Management Reporting and Disclosure Act of 1959, 73 Stat.

519, 29 U.S.C. 401 ef seq. 2... eee eee eee ees 1

Section 4OU(]) oo... ccc cece cece eee eee ween teen ens 4

Section 401(g) .. 1... cee cece eee eee eee e eens 4

Section GOR(a) ww... c cece ccc eee ence eee neee eens 4, 10

Section GOR(B) 2... wc ccc ccc eee e eee e twee eees 10

IR ee oe Bees eek peasants abe hebeeee seaenn 13

Miscellaneous

S. Rep. No. 187, 86th Cong., Ist ee eR kG ahah Seen 12

Dept. of Labor, Interpretative Manual .........-...-.-.5+55. 18

IN THE

Supreme Court of the Anited States

October Term, 1970

No. —————

James D. Honeson, Secretary of Labor, Petitioner,

v.

Loca Union 6799, Unrrep STEELWORKERS OF AMERICA,

AFL-CIO, et al, Respondents.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPBALS

FOR THE NINTH CIRCUIT

BRIEF FOR THE UNITED STEELWORKERS OF

AMERICA, AFL-CIO, IN OPPOSITION

INTRODUCTION

The instant petition for a writ of certiorari filed by the

Solicitor General, on behalf of the Secretary of Labor, does

not in our judgment accurately describe the nature of the

questions presented or the relevant facts which give rise to

such questions. In addition, many of the relevant facts are

om:tted altogether. Precisely because of these serious short-

comings in the Secretary’s Statement, we deem it necessary

to set forth below in detail our position concerning these

same subjects.

Counter-Statement of the Questions Presented

1. Whether the Secretary of Labor’ may raise issues in

an action under Title IV of the Labor Management Re-

' Hereinafter, “the Secretary”.

——_

—

porting and Disclosure Act of 1959 (29 U.S.C. 401)? which

were not raised by any member in the union’s internal pro-

test procedure and are not germane to the protest actually

filed.

2. Whether the union’s rule requiring that a candidate

for local union office have attended half (2) the regular

monthly meetings in the twenty-one (21) months immedi-

ately preceding nominations is a “reasonable qualification”

for candidacy, where attendance is not difficult for any

member and the rule does not in practice preclude contests

for union office.

Counter-Statement of the Case

2

A. The Failure to Protest the Reasonableness of the Meet-

ing Attendance Rule in the Union’s Internal Election Pro-

cedure.

The thrust of the Secretary’s petition is devoted to expos-

ing the alleged error in the opinion of the court below’

holding that in the instant circumstances the Secretary

lacked standing to challenge the validity of the union's

meeting attendance rule. To insure that this Court can as-

sess the Secretary’s legal arguments in light of an accurate

and relevant factual recitation, we feel constrained to set out

this comprehensive counter-statement below.

Local Union 6799 (hereinafter “the Local’’) is and at all

pertinent times has been chartered by and subordinate to

the United Steelworkers cf America, an international labor

o¥ganization (hereinafter “the Union”). The Local con-

ducts all its affairs pursuant to the Constitution of the In-

ternational Union, the Local Union Elections Manual of the

International Union, and the Standard By-Laws for Local

2 The relevant portions of this statute are set forth in Appendix E

to the Secretary’s petition for a writ of certiorari at pp. 45-47.

8 The entire opinion is printed in Appendix A to the petition (pp.

19-26).

3

Unions issued by the International Union (Appendix C of

the petition at p. 29). |

The election challenged in this lawsuit was conducted by

the Local on June 12, 1967 (id. at p. 37). It was a general

election for all major local union offices.* The Union’s

Constitution establishes a detailed procedure which pro-

vides a member the right to file an election protest if he be-

lieves the election was improperly conducted for any reason.

Under this procedure the protest must initially be raised be-

fore the Local Union and is ultimately resolved by the

Union’s International Executive Board. (Pl. Exh. 2, p. 22.)

The only member who challenged the Local’s 1967 elec-

tion was Nicholas Hantzis, an unsuccessful candidate for

President® (Pl. Exh. 1, p. 15; Appendix A e petition, p.

22, n. 3). At the Local Union’s July 10, 19¥XQ meeting, and

in nis subsequent written appeal to the Upion’s International

Executive Board (dated July 18, 196Q Hantzis protested

about a number of matters, including the charge that the

Local Union stencilled and mimeographed campaign ma-

terial for one of his opponents, Brother Rose. It is clear,

however, that at neither stage in the internal union pro-

cedure did Hantzis’ protest attack the reasonableness of the

Union’s meeting attendance rule; nor did it allege that the

rule was applied in a non-uniform manner. (Appendix C

to the petition at p. 39). This is not surprising since Hantzis

did, in fact, satisfy the requirements of the rule.

* Elections were held for the following offices: President, Vice-Presi-

dent, Recording Secretary, Financial Secretary, Treasurer, Guide, In-

side Guard, Outside Guard and Three (3) Trustees (Appendix C of

the petition at pp. 37-38). All “Tr.” references are to the transcript

of the trial in the district court. “R” refers to the record in the court

of appeals and all “Exh.” references are to the exhibits in the trial

before the district court.

5In the election for President, Rose was elected; he received 191

votes as compared with 147 votes for Hantzis and 59 for Redell (id. at

pp. 37-39). There were approximately 578 members in the Local

Union as of April 1, 1967 (Tr. 28).

4

Indeed, the Secretary has expressly acknowledged in his

answers to defendant’s Interrogatories that Hantzis’ protes

did not afford the Union “fair notice” of these matters, nor

did it “call upon defendants to correct any or all of the (se)

matters.” (R. 25). The matters which were raised in the

Hantzis protest were decided adversely to him by the Inter.

national Executive Board, thus exhausting Hantzis’ abortive

efforts to obtain recourse through the internal election pro.

test machinery.

‘Thereafter, on October 11, 1967, Hantzis filed a com.

plaint with the Secretary pursuant to Section 402(a) of the

Act. In it, he complained once again about the use of Union

facilities for preparing Rose’s campaign literature and also

questioned, for the first time, the reasonableness of the

Union’s meeting attendance requirement and the manner in

which the rule was applied. (Appendix C to the petition at

pp. 39-40). See Section 401(e) and (g) of the Act (29

U.S.C. 481(e) and (g) ).

In the course of investigating this complaint, the Secre-

tary became interested in all three issues. Approximately

one-half year after the election, but prior to instituting this

action, representatives of the Secretary discussed all these

issues with legal counsel for the Union (id. at p. 41; Pl. Exh.

1, pp. 15-16). This was, to repeat, the first time that either

the question concerning the reasonableness of the meeting

attendance rule or its application was called to the Union's

attention. .

Precisely because of the belated injection of the meeting

attendance issue, the Union took the position that the Sec-

retary lacked standing to attack the meeting attendance rule

in the instant suit filed under Section 402 of the Act.

The court below agreed. Faced with the task of achieving

a delicate balance between two potentially conflicting ob-

jectives of the statute (i.e. a desire not to hamstring the

Secretary’s investigative powers and enforcement jurisdic-

tion while simultaneously not rendering the exhaustion re-

i Rg hE ee

5

quirement a nullify), the court defined the controlling legal

standard as follows:

“. . . Congress intended to empower the Secretary

to assert [in a Section 402 action] those violations that

are fairly apparent from a member's protest to the

union and no others” (Emphasis added) (Appendix A

to the petition at p. 22).

Applied to the instant facts, the court held that the Sec-

retary lacked standing to sue on the meeting attendance

rule since by his own acknowledgment the Hantzis protest

did not by any stretch of the imagination afford the Union

“fair notice” of this issue. (Appendix A to the petition at

p. 21).

B. The Merits of the Union’s Meeting Attendance Rule.

Insofar as the merits of the Union’s rule is concerned, the

Secretary's Statement of Facts is grossly inadequate. In

summary form we shall explicate those additional relevant

and undisputed facts which warrant this Court’s attention.

First, the Constitution of the Steelworkers International

Union, which is applicable to each of its 3,700 local unions,

requires that to be eligible for candidacy for elected office a

member must have attended half the regular monthly meet-

ings of the local union during the thirty-six (36) months

preceding the election, with credit given for meetings the

member could not attend because of his union activities or

working hours (id. at p. 30).° Actually, however, because

the Local Union was not formed until 1965, it held only 21

regular meetings prior to the June 1967 election, so that

the effect of the rule at this Local was to require attendance

(or credit) at only eleven (11) meetings (Pl. Exh. 1, p. 3).

Second, the regular monthly meetings only lasted ap-

proximately two (2) hours (Tr. 281) and attendance was

not difficult for any member; all of the Local’s members

* The term of office for each local union official so elected is three

(3) years.

6

work at one plant’ and the Union meeting hall is just a fif.

teen (15) minute automobile drive from the plant (PI. Exh.

1, pp. 5-6).

Third, at the Local’s May 1967 nomination meeting, 49

members were nominated as candidates for the elective of.

fices; 22 of these declined nominations. Of the remaining 27

nominees, all but 3° satisfied the meeting attendance rule

(Appendix C to the petition at p. 34) and appeared on

the ballot as candidates. The net result was that each of the

incumbent officers was challenged by one or more opponents

who satisfied the meeting attendance requirement (7d. at pp.

37-39). This is illustrative of the more general pattem

which exists in Steelworker local union elections conducted

throughout the country.” Stated otherwise, the record is de-

void of any evidence that the rule operates to perpetuate

incumbents.

Fourth, Constitutions of International Unions having

25% of all of America’s union members impose meeting

attendance requirements as a candidacy qualification for

7 All of the Local’s members are employed at the Pomona, Califor

nia plant of Land Division, Howmet Corporation (Tr. 26, 57).

8 Cf. the Secretary’s petition at p. 6.

® At trial, defendants offered two (2) exhibits designed to establish

that at other Steelworkers’ locals, the meeting attendance rule like-

wise did not preclude contests for union office (Tr. 415-418). Thus,

Def. Exh. X showed the number of candidates who qualified and ran

for President in each local union with 500 or more members within

District 38 of the Steelworkers, which comprises our membership in

the 14 Western States. Further, Def. Exh. W showed the number

of candidates who qualified and ran for the five principal offices in

each of the local unions whom the Secretary has sued on the identical

ground that its meeting attendance rule is an unreasonable qualifica-

tion within the meaning of Section 401 (e) of the Act.

The district court (per Crary, J) rejected these exhibits as irrele-

vant upon the Secretary’s concession that there was no claim in this

case that the rule precluded contests against incumbents (Tr. 418,

421).

7

local union office, and in all probability a much larger per-

centage of local unions have such a requirement."

Fifth, the meeting attendance rule is designed to accom-

plish numerous legitimate union purposes, including the de-

sire to increase attendance at meetings, to attempt to insure

that candidates have demonstrated an interest in the union’s

problems and are familiar and better able to cope with the

complexities and responsibilities attendant to holding of-

fice (Appendix C to the petition at pp. 33-34), and to at-

tempt to insure that there is a check upon the unbridled

control of the local’s affairs by the incumbent officers be-

tween elections.

Finally, the Secretary has recognized the basic principle

that meeting attendance requirements are “a reasonable

means of encouraging participation in the affairs of the

union” (Def. Exh. N, O, P, O). The Secretary has pub-

lished an Interpretative Manual announcing to the general

public what he considers to be the proper interpretation of

the statute which he is empowered to administer and en-

force. Paragraph 422.250 of the Manual (Def. Exh. T),

captioned “Participation in Union Affairs,” states a general

principle that, absent unusual circumstances, an eligibility

rule designed to assure participation in and familiarity with

union affairs is a reasonable candidacy qualification:

“Qualifications reasonably designed to assure that

candidates have participated in the affairs of the union

The 25% figure was derived from a survey of International Un-

ion Constitutions made by the Secretary’s Director of Research (Tr.

305, 307). An additional! 7% of union members are in unions whose

International Union Constitutions expressly leave the matter to local

union option (ibid.), and the Director of Research testified that some

local unions in these Internationals have adopted meeting attendance

requirements in their local union constitutions and by-laws (Tr. 310).

There are 45,000 local unions in the United States (Tr. 311), and

the Secretary has made no effort to determine how many have meet-

ing attendance requirements in their constitutions and by-laws (Tr.

310-311).

aa

and are sufficiently familiar with the industry in which

the union operates, would not be considered unreasop.

able in ordinary circumstances, if uniformly imposed,

In the absence of knowledge of any special circum.

stances which cast doubt upon the validity and reason.

ableness of any of the qualifications, they are not to be

considered unreasonable in themselves.” [**]

8

As one specific application of this principle, the Manual

declares that a requirement of 50% meeting attendance

over a 24 month period (which is greater than the 21 month

period involved in the instant case) is a reasonable can-

didacy qualification, except where attending presents “an

unusual degree of difficulty for a significant proportion of

the membership; as for example, where the local had an

extensive geographical jurisdiction.” (Manual par. 422.206

Def. Exh. T).” At trial, the Chief of the Secretary’s Elec-

tions Unit conceded that this exception for difficulty in at-

tending is not applicable to the instant case.”

All three of the district courts ‘* which have ruled on the

In light of the foregoing we find it totally disingenuous for the

Secretary now to attempt to rely (see petition at pp. 6-7) on testimony

of one of his own representatives to support a contrary position—

namely, that the union’s rule does not serve the intended purpos.

The union “presented no testimony to support the contention that

members who attend union meetings are better qualified to serve as

officers . . .” (petition at p. 7) precisely because the Secretary’s own

interpretive rulings were predicated on the validity of this “conten-

tion”.

12 The Manual is silent as to the validity of a 50% meeting attend-

ance requirement spanning 36 months, the period applicable to Steel-

workers’ local unions which, unlike Local 6799, are not newly formed.

18 The Manual distinguishes 75% meeting attendance requirements

which, it notes, have been judicially declared “unreasonable” absent

extremely liberal excuse provisions for non-attendance. (Manual, par.

422.208 (Def. Exh. T).

14In addition to the district court decision in the instant case, see

aiso Shultz v. Local Union 1299, Steelworkers, 73 LRRM 2673, 62

Lab. Cas. | 10,720 (E.D. Mich.), and Shultz v. Local 1150, Steel-

workers (S.D. Ind., Civ. Action No. —, IP 68 C-76, (May 19, 1970).

9

Steelworkers’ meeting attendance requirement have con-

cluded that it is not unreasonable and, in so doing, dismissed

the suits filed by the Secretary alleging violations of Section

401(e) of the Act. Significantly, as shown above, the courts,

in reaching this conclusion, were actually agreeing with the

precise principles which the Secretary has previously enun-

ciated as the proper interpretation of the Act but which he

now seeks to discredit.

ARGUMENT

1. There is no compelling reason to grant the writ on

the procedural question presented by the Secretary.

in Wirtz v. Local Union No. 125, Laborers’ International

Union, 389 U.S. 477 (1968), this Court was invited, but

expressly declined, to decide “the merits of the Secretary’s

argument that a member’s protest triggers a §402 enforce-

ment action in which the Secretary would be permitted to

file suit challenging any violation of §401 discovered in his

investigation of the member’s complaint.” (Id. at 482) (Em-

phasis added.) In the instant action, once again, the Secre-

tary places almost exclusive reliance (see petition at p. 14,

n. 9) on the same argument in support of his efforts to ob-

tain a writ as was made in Laborers’ International. There

is no more reason for this Court to decide that legal issue

now than existed when Laborers’ International was decided.

The court below is the lone Court of Appeals to have passed

upon the Secretary’s argument. Unless and until there de-

velops a conflict among the Courts of Appeals, the need for

review by this Court is not apparent.

In any event, as we now show, the decisicn below is

plainly correct, and does not warrant review. The court

below resolved the procedural question in a sound and

proper manner which comports with the legislative purpose.

Section 402 of the Act, 29 U.S.C. §482, provides in perti-

nent part:

10

“(a) A member of a labor organization—

(1) who has exhausted the remedies available under

the constitution and by-laws of such organization and

of any parent body or, (2) who has invoked such avail.

able remedies without obtaining a final decision within

three calendar months after their invocation, may file

a complaint with the Secretary within one calendar

month thereafter alleging the violation of any provision

of Section 401 ...

(b) The Secretary shall investigate such complaint

and, if he finds probable cause to believe that a viola-

tion of this title has occurred and has not been reme-

died, he shall, within sixty days after the filing of such

action, bring a civil action against the labor organiza.

tion . . .” (Emphasis added. )

Upon analysis of the quoted statutory language and the

underlying legislative history, the court below held that the _

only way these provisions could be read as a harmonious

whole was to conclude “that Congress intended to empower

the Secretary to assert those violations that are fairly appar-

ent from a member’s protest to the union and no others”

(see Appendix A to the petition at p. 22). That conclusion,

in the court’s view, maintains the delicate balance between

the dual Congressional objectives of according the Secretary

substantial enforcement powers and preserving union self-

government.

The reasoning of the court below, in pertinent part, was

as follows:

“Section 402 is ambiguous. Its exhaustion of reme-

dies precondition logically suggests that the union must

be afforded fair notice of the purported wrong and a

reasonable time [“three calendar months” is the period

designated in 402(a)(2)] to take corrective measures

through its own internal machinery before complaint

‘ll

may be filed with the Secretary; yet the section also

provides that the complaint (to the Secretary) may al-

lege “any” violation and the Secretary must bring a

civil action to set aside the invalid election within sixty

days after receiving the complaint. To allow the Secre-

tary wide ranging power to urge “any” violation would

in effect nullify the exhaustion requirement; not only

might the union be completely unaware of the asserted

violation prior to the suit but, even if the Secretary

gives notice before filing suit, the “three calendar

months” period allowed for corrective action by the

union would be rendered virtually meaningless. How-

ever, if the broad language appearing in the section

is more narrowly construed, these inconsistencies dis-

appear and the several provisions become harmonious.”

(See Appendix A to the petition at pp. 22-23).

In his petition, the Secretary places heavy reliance on his

“broad investigative powers,” his “exclusive enforcement

jurisdiction,” and “his vital role in protecting the public,” “

to support the far reaching argument that once having con-

ducted his investigation there are absolutely no limits to the

§401 violations he can assert in a §402 suit. The simple

answer is, as the court below aptly pointed out, that to

achieve this result the Secretary would have us read the

exhaustion principle out of the statute, contrary to the

express legislative intent.

One of Congress’ main concerns in adopting the Act

was to give full play to internal union appeals procedures

in the resolution of election disputes, and to inject the Sec-

retary and the courts only where those internal mechanisms

proved incapable or unwilling to resolve these disputes. As

this Court stated in Wirtz v. Local 153, Glass Bottle Blowers

Ass'n. 389 U.S. 463, 472-473 (1968): “Congress has ex-

plicitly told us that these provisions were designed to pre-

* See the Secretary’s petition at p. 12.

12

serve ‘a maximum amount of independence and self-govern.

ment by giving every international union the opportunity

to correct improper local elections.’ S. Rep. No. 187, 86th

Cong., Ist Sess. 21, 1 Leg. Hist. 417.”

The Senate Report expressed the “general approach of

the bill” thusly:

“A strong independent labor movement is a vital

part of American institutions. . . . The overwhelming

majority [of unions] are honestly and democratically

run. In providing remedies for existing evils the Senate

should be careful [not] to undermine self-government

within the labor movement. . . .

“In acting on this bill the committee followed three

principles :

“1. The committee recognized the desirability of

minimum interference by Government in the internal

affairs of any private organization. Trade unions have

made a commendable effort to correct internal abuses;

hence the committee believes that only essential stand-

ards should be imposed by legislation. (Moreover, in

establishing and enforcing statutory standards great

care should be taken not to undermine union self-gov-

ernment. ...”) (S. Rep. No. 187, 86th Cong. ist Sess.

(1959), pp. 5, 7; emphasis ours. )“*

Significantly, as described above, this “general approach,”

which the Secretary now seeks to render meaningless, was

carried forward into Section 402 of the Act. See also, §.

Rep. No. 187, 86th Cong., Ist Sess. (1959), p. 31.

Consistent with the foregoing, it is obvious that if a mem-

ber does not pursue his internal union remedies at all, the

Secretary cannot thereafter institute suit. Wirtz v. Local

Union No. 125, Laborers’ International Union, supra, 389

16 See Wirtz v. Local 153, Glass Bottle Blowers Ass’n., supra, 389

USS. at 471, n. 10.

13

U.S. at 482, n. 15." Logic dictates a similar result where, as

here, a member pursues his internal union remedies as to one

issue but the Secretary thereafter files suit to set aside the

election on a wholly different issue.

In addition to the Ninth Circuit's instant decision, the dis-

trict courts have almost uniformly rejected the Secretary’s

claim that he has roving jurisdiction to attack aspects of a

union election completely unrelated to members’ internal

union protest. Instead, they have ruled that the Secretary

may sue only with respect to matters which the union had a

fair opportunity to consider and redress in connection with

the member’s own protest to the union. See, Wirtz v. Local

257, Glass Bottle Blowers, 273 F. Supp. 746 (D. N.J. 1967) ;

Wirtz v. Local 174, American Federation of Musicians, 272

F. Supp. 294 (D. La. 1967) ; Wirtz v. Local Union No. 450,

63 LRRM 2105, 54 Lab. Cas. J 11,450 (S.D. Tex. 1966) ;

Wirtz v. Local Union No. 406, 254 F. Supp. 963 (E. D. La.

1966); Wirtz v. Local Union 169, 246 F. Supp. 741, 60

LRRM 2540 (D. Nev. 1965)."*

Indeed, in Laborers’ International, upon which the Secre-

tary mistakenly places major reliance (petition pp. 8-11),

this Court’s opinion strongly suggests a disposition to reach

the same result. Thus, the Court there stated that on the

facts before it the member’s internal union protest afforded

the union “fair notice” of the matter about which the Sec-

retary ultimately sued, 389 U. S. at 481, and it added:

"Section 601 (29 U.S.C. §521) bestows upon the Secretary broad

investigatory powers even absent a member’s complaint. However, in

such circumstances the Secretary cannot initiate a §402 action irrespec-

tive of what violations his investigation discloses; his remedy is limited

to disclosure of such violations to the interested parties.

** The Secretary's petition (p. 14, n. 19) cites only two cases to the

contrary and it is not at all clear that one of those (Wirtz v. Local

1377, IBEW, 63 LRRM 2029, 54 Lab. Cas. § 11,391 (N.D. Ohio) )

actually supports the broad interpretation championed by the Secre-

tary.

ee ee

aa

“It is true that the exhaustion requirement was re.

garded by Congress as critical to the statute’s objec.

tive of fostering union self-3.vernment. By channeling

members through the internal appellate processes, Con.

gress hoped to accustom members to utilizing the reme.

dies made available within their own organization; ai

the same time, however, unions were expected to pro-

vide responsible and responsive procedures for investi-

gating and redressing members’ election grievances,

These intertwined objectives are not disserved but

furthered by permitting the Secretary to include in his

complaint at least any §401 violation he has discovered

which the union had a fair opportunity to consider and

redress in connection with a member’s initial complaint.

“. . . In default of respondent's action on a violation

which it had a fair opportunity to consider and resolve

in connection with [the member’s] protest, the Secre-

tary was entitled to seck relief from the court. . . .” (389

U.S. at 484, 485, emphasis added).

In sum, the “fair notice” standard enunciated by this

Court in Laborers’ International, and adopted by the court

below, strikes an appropriate balance between the dual Con-

gressional objectives of fostering union self-government and

according the Secretary substantial and meaningful enforce-

ment powers.

It is likewise evident that the court below properly ap-

plied the “fair notice” standard in the instant factual con-

text. Here, unlike Laborers’ International, the Secretary

concedes that the internal union protest afforded the Union

neither fair notice of the matters ultimately raised in his law-

suit nor a fair opportunity to consider and redress such ma‘-

ters. Simply put, it is hard to conceive of issues more dis-

parate than those raised by Hantzis’ protest (re the conduct

of the election itself) and the Secretary’s contentions which

were dismissed by the court below (re the eligibility re-

quirement for candidacy).

14

15

The Secretary’s remaining arguments have little force.

In urging that “it makes little sense to restrict the scope of

the lawsuit brought by the Secretary to the four corners of

the complaint originally made by the union member” (pe-

tition at p. 12), the Secretary is just raising a strawman.

Of course, union members are laymen and their written pro-

tests should be construed liberally. As such neither the Un-

ion’s position nor the opinion of the court below disputed

the self-evident fact that it would be grossly unfair and

supertechnical to artificially limit the Secretary’s enforce-

ment powers merely because the members’ protest was in-

artfully worded. But this is of no relevance whatsoever

here. As we have explained in detail above, the extreme

variance between the Secretary’s complaint and the protest

filed by Hantzis with the Union is one of substance and not

merely a matter of form, style or language.

Finally, the Secretary’s argument is likewise unpersuasive

insofar as he attempts to demonstrate (petition p. 13) that

his pre-litigation notice to the Union accorded it a “fair op-

portunity” to resolve the alleged violations arising out of the

meeting attendance requirement. This contention, as the

court below held, is spurious."* The Secretary always noti-

fies the Union before instituting suit; accordingly if this ar-

gument were to prevail it would mean that the Secretary

could nullify the exhaustion requirement of the statute

through the simple expedient of sending a formal pre-liti-

gation letter to the Union raising claims of alleged viola-

tions wholly unrelated to those contained in the member's

internal Union protest.

In Laborers’ International this Court implicitly rejected

the validity of the Secretary’s argument. The Court did not

say that the Act was satisfied if the Union had notice from

® It was also expressly rejected in Wirtz v. Local 257, Glass Bottle

Blowers, 273 F. Supp. 746 (D. N.J. 1967).

—

the Secretary before suit was filed. Rather, the Court said

that the Secretary was permitted:

- - - to include in his complaint at least any §40]

violation he has discovered which the Union had a fair

opportunity to consider and redress in connection with

a member’s initial complaint” (389 U.S. at 484, em.

phasis added).

It is clear therefore, that the Court was referring to notice

received by the Union from a member, in the course of its

internal p*9test machinery, and not notice received from

the Secretary after the Union's highest judicial tribunal has

acted.

Not only does the Secretary’s argument run counter to the

exhaustion language of the statute, it likewise is totally at

odds with the objectives Congress sought to achieve in in-

corporating this requirement into the Act.” To illustrate,

as we have shown above, Congress wanted to give Unions’

judicial tribunals the first opportunity to decide internal

Union controversies. But under the Secretary’s theory, Un-

ions would not get that opportunity: the Secretary’s theory

would impose no obligation upon a member to present all

his grievances to the Union’s judicial body. He need present

only one, and that would suffice to give the Secretary carte

blanche.

2. If the Court is disposed to grant the Secretary’s writ

on the exhaustion of reme*ies issue, the Union would join

in his further request th ‘e Court likewise decide the

substantive question whethe: the Union’s meeting attend-

ance rule is a “reasonable qualification” for candidacy.

16

7° In Shultz v. Local Union 1299, Steelworkers, supra and Shultz

v. Local 1150, Steelworkers, supra, two district courts held, prior to

the issuance of the decision below, that the Secretary's pre-litigation

notice satisfied the exhaustion principle by providing the Union a fair

opportunity to consider and redress its alleged violations. Those dis-

trict court decisions are now on appeal to the Sixth and Seventh Cir-

cuits respectively.

17

In addition to this proceeding, the Secretary has initiated

lawsuits challenging the elections of seven other Steelwork-

ers’ local unions” on the same ground, i.e., the alleged un-

reasonableness of the Steelworkers’ requirement that to be

eligible for candidacy, a member must have attended half

the regular meetings of his local union during the 36 months

preceding the election, with credit given for meetings the

member could not attend because of his union activities or

working hours (Appendix C to the petition at p. 30; Pl.

Exhibit 2, p. 48).

In summary fashion, we discuss below the primary factors

which support the reasonableness of our rule and which,

significantly, persuaded each of the three district courts that

have passed upon the merits of the rule to conclude that it

is reasonable.

The rule serves legitimate trade union purposes. It en-

courages attendance at the union’s official business meetings;

it requires dissidents to attend meetings, thereby providing

a check against arbitrary and unbridled control of the union

affairs by incumbent officers during their term of office; and

it is designed to assure that the candidates will be members

who have demonstrated an interest in the union’s affairs and

who will be better able to cope with the complexities and

responsibilities attendant upon holding office.” The legiti-

macy of the Union’s objectives is undisputed; indeed, the

Secretary has repeatedly recognized in the past that these

same objectives would validate a meeting attendance re-

quirement at least of two year’s duration.”

*! See, for example, the cases cited at n. 14, infra.

* The district court below so held (Appendix C to the petition at

pp. 33-34) :

“The meeting attendance requirement is designed to increase

attendance at meetings and insure candidates who have demon-

strated interest in union problems, are familiar with them, and

better qualified to serve as officers of the Union.”

*8 See jour prior discussion of the Secretary’s Interpretative Manual

at ™- supra.

—_—_

—

The rule does not by its terms disqualify any member

from becoming a candidate. Every member can qualify

simply by devoting an average of two hours every other

month to the affairs of his anion, attending a meeting held

in a nearby hall readily accessible to the entire membership,

18

In these circumstances the Secretary’s conclusionary ar.

gument (petition pp. 15-16) that the rule “renders” jn.

eligible a high percentage of the members in the Local can-

net withstand scrutiny. The point is, as the district court

below found, that every member could have qualified simply

by attending half the meetings. Contrary to the Secre-

tary’s position (petition pp. 15-16) this rule in unlike those

which prevent members from qualifying who wish to do so

—e.g., the “prior office holding” rule declared invalid by

this Court in Wirtz v. Hotel, Motel and Club Employees

Union, Local 6, 391 U.S. 492 (1968). As such, the Secre-

tary’s exclusive reliance on Hotel Employees to support his

claim that the high percentage of ineligible members “would

seem to render the qualification invalid per se” (petition

p. 16) is totally misplaced. Indeed, this argument is itself

inconsistent with the Secretary’s previously announced inter-

pretation of the Act—for in upholding 50 percent meeting

attendance rule for a two-year period the Interpretative

Manual does not state any exception for cases where only a

small percentage attend.”

**“Tt is a reasonable requirement, because anyone who wanted to

comply with it could have complied by attending, or through the lib-

eral work excuse provision” (Appendix C to the petition at p. 34).

2° Sometime in the mid-1960’s, however, the Secretary instituted a

lawsuit against another union based on the theory that an otherwise

reasonable rule was invalidated if only a small percentage attended.

That lawsuit was withdrawn only a few months prior to the election

involved in the instant case. In explaining the withdrawal, the De-

partment of Labor stated that the Secretary had conducted “a gen-

eral review of attendance requirements” and had concluded that a

19

Of equal importance, the Union’s rule is not at odds with

the essential evil that Congress sought to eradicate in enact-

ing Title 1V—namely, the practice of a few unions to struc-

ture their election machinery in such a fashion that it was

virtually impossible to remove entrenched incumbent offi-

cers. This legislative objective is in no way thwarted by

the Steelworkers’ instant rule. As shown in the Counter-

statement, the rule does not, in practice, prevent opposi-

tion to the incumbent union officers. Here, all incumbents

were Challenged by rivals who qualified under the rule (in-

cluding the complainant Hantzis) and this same pattern

exists throughout the Union.

Based on the foregoing, and in light of the widespread

presence of meeting attendance requirements applicable to

union elections generally and Congress’ expressed desire not

to regulate every detail of union elections or impose inflexi-

ble rules which would hinder diversity in the administration

of democratic election procedures,”* we submit that the in-

stant rule is not an “unreasonable qualification”.

CONCLUSION

For the foregoing reasons, the Secretary’s petition for a

writ on the procedural question should be denied. If, how-

ever, the writ is granted, the Court should also decide the

tule should not be invalidated simply because a small percentage ac-

tually qualify. (Def. Exh. Q). Thus, at the time of the election here-

in, the Secretary’s view was that small percentage does not invalidate

(Tr. 163). He changed his mind again when he decided to institute

the present action, as the Chief of his Elections Unit acknowledged

(Tr. 164).

** See, for example, 5.Rep. No. 187, 86th Cong., Ist Sess. (1959,

p. 7; Wirtz v. Local 153, Glass Bottle Blowers, supra, 389 U.S. at 471.

—

question which the court below did not reach, i.e., the rea.

sonableness of the Union’s meeting attendance rule.

20

Respectfully submitted,

ELuiot BREDHOFF

MicHaeELt H. GotresMAN

Georce H. CoHEN

1001 Connecticut Ave., N.W.

Washington, D. C. 20036

CarL FRANKEL

1500 Commonwealth Building

Pittsburgh, Pennsylvania 15229

Jerome SMITH

6404 Wilshire Boulevard

Los Angeles, California 90048

Attorneys for United Steelworker;

of America, AFL-CIO

Of Counsel:

BERNARD KLEIMAN

10 S. LaSalle Street

Chicago, Illinois 60603