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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1971
- **Citation:** 403 U.S. 333

## Text

INDEX
Page
SND, on ban cdedanaduveccvesccdvrcencusuvsasveonses 1
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).

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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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386413_0306%3A3. Public record. Not legal advice.