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

it: .

I. The Secretary of Labor is not restricted to alleging

’ by the complaining Union member; in this case

he properly included an additional violation

' disclosed by his investigation which he first

afforded the Union an opportunity to remedy--.

II. Respondents’ rule requiring a candidate for local

union office to have attended at least one-half

of the local union meetings held during a three-

’ year period “unless his Union activities or

‘ working hours prevented his attendance” was

not a reasonable qualification uniformly

CITATIONS

Calhoon v. Harvey, 379 U.S. 134___--..-...-..------

Labor Board v. Fani Milling Co., 360 U.S. 301... ..--

Local 57, International Union of Operating Engineers

eB) NS es Ga eee ree eeere

Lecal Unions No. 545, etc., International Union of

Operating Engineers v. Wirtz, 381 F. 2d 448________-

Mitchell v. Kentucky Finance Co., 359 U.S. 290-_-__-

Phillips Co. v. Walling, 324 U.S. 490._........----

Shultz v. Local #1150, United Steelworkers, 75 LRRM

i Ci cnccanccacdusdtwsdieuk done

Shultz v. Local Union 1299, United Steelworkers, 73

LRRM 2673, 62 L.C. 410,720... ............-..-

cpa ame Os a feet eg Moen hl Pa A

ie Se)

€14-435—71-—__1

dh ele

12

ll

Wirte v. Hotel, Motel and Club Employees Union, Local Pam

Fe a er ee 11, 22, 23, 24, 25

Wirtz v. Independent Petroleum Workers, Inc., Local 1,

1.0.W.U., 75 LRRM 2340, 63 L.C. $11,190.-.._- 13

Wirtz v. Independent Petroleum Workers, Inc., Local 1,

1.0.W.U., 307 F.Supp. 462-.--....--------------- 13

Wirtz v. Independent Workers Union of Florida, 65

LRRM 2104, 55 L. C. 911,857__......-----.----- 23, 26

Wirtz v. Local 158, Glass Bottle Blowers Association,

900 WS. 400... .... 22-0220. cena oaeg noose ets 10, 18

Wirtz v. Local 153, Glass Bottle Blowers Association, 244

F.Supp. 745, reversed on other grounds, 405 F.2d:

GE inc: calianacedennechesacenendanansshadense< 19, 25

Wirtz v. Local 191, International Brotherhood of

Teamsters, 226 F.Supp. 179_-..------------------- 16, 26

Wirtz v. Local 191, International Brotherhood of Team-

Pe 6 fC | Te oe 16

Wirte v. Local 1377, 1.B.E.W., 63 LRRM 2029, 54 L.

TREE, nk. ccotdnee<epannntnerentnecegines a

Wirte v. Local Union No. 125, Laborers’ International

Union, 389 U.S. 477_....-.----- 9, 12, 13, 15, 16, 17, 20, 21

Wirtz v. Local Union 169, International Hod Carriers,

266 F.Supp. 741.........--...-.---.------------ 13

Wirtz v. Local Union 262, Glass Bottle Blowers Asso-

ciation, 200 F.Supp. 965- - - -.-..----------------- 24

Wirtz v. Local Union No. 450, etc., Operating Engineera,

63 LRRM 2105, 54 L. C. 411,451... ..-.--.------ 13

Wirte v. Local Unions No. 406, etc., Operating Engi-

neers, 254 F Supp. 962_-....--------------------- 13

Wirte v. Local Union No. 1622, etc., 285 F.Supp. 455. 13

Statutes:

Labor-Management Reporting and Disclosure Act of

1959, 73 Stat. 519, 29 U.S.C. 401 et seq.:

rai aks Sh.L caiknciwecu bade 12

Pe ee Fea ae ererecarecye sr 27

00 TRIN BENE «3. csnuschapiwiascace 4, 11, 22, 27

i al a ladl cccndanncl 3, 4,8

ee RT EE Ce ween were 12

OR cn ncindddenks 3, 19, 20, 21, 28

OP ING. nocd. ccnuuk ccndends 14, 19, 28

ET SP SS SESE IER a eer years a SF 18, 29

29 US.C. 488(¢@)...................--..-.---- 18, 29

ional Material: Page

H.R. 8342, 86th Cong., Ist Sess., 105 Cong. Rec.

BF dnc tnees nid ccccccndsdhseesedasecsconcts 15

S. 748, 86th Cong., Ist Sess., 105 Cong. Rec. 1276____ 15

S. 1002, 86th Cong., Ist Sess., 105 Cong. Rec. 2067__ 14

S. Rep. No. 187, 86th Cong., Ist Sess... -_....___- 15, 20

Miscellaneous :

An Analysis: Local Union Election Appeals, Depart-

epee er ane, BOG a in Sn ciNccccikechcceckdank 20

Beaird, Union Officer Election Provisions of The Labor-

Management Reporting and Disclosure Act of 1959,

er Os SNS Wa caduescccewed Jdbadecduake 16

Jn the Supreme Court of the United States

OcToBER TERM, 1970

No. 655

Vv.

LocaL Union 6799, UNtTep STEELWORKERS OF

America, AFL-CIO, er at.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE NINTH CIRCUIT

BRIEF FOR THE PETITIONER

OPINIONS BELOW

The opinion of the court of appeals (A. 50-55)

is reported at 426 F.2d 969. The opinion of the district

court (A. 34-37) is unreported.

JURISDICTION

James D. Hopson, Secrerary oF LaBOR, PETITIONER

The judgment of the court of appeals (A. 56)

was entered on May 8, 1970. On July 30, 1970, Mr.

Justice Douglas extended the time for filing a petition

for a writ of certiorari to September 8, 1970. The

petition was filed on September 4, 1970, and granted

December 7, 1970 (A. 56). The jurisdiction of this

Court rests on 28 U.S.C. 1254(1).

(1)

a

2

QUESTIONS PRESENTED

1. Whether, in an action to set aside a union elec.

tion pursuant to Title IV of the Labor-Management

Reporting and Disclosure Act of 1959, the Secretary

of Labor may allege only those violations of the Act

which were protested internally by the complaining

union member, or whether he may also allege addi-

tional violations disclosed by his investigation which

he has given the union an opportunity to correct.

2. Whether a union rule restricting candidacy for

local office to those members who have attended at

least 50 percent of the local union meetings during the

three-year period preceding nominations is a “reason-

able qualification unifesmly imposed” within the

meaning of the Labor-Management Reporting and

Disclosure Act of 1959, notwithstanding that (a) it

renders nearly 90 percent of the membership ineligible

to seek office, and (b) it imposes an unequal burden

on members working on different shifts, and enables

some members to qualify without attending any meet-

ings at all by having their absences excused because

of the performance of overtime work.

STATUTE INVOLVED

The relevant provisions of the Labor-Management

Reporting and Disclosure Act of 1959, 73 Stat. 519,

29 U.S.C. 481, 482, are set forth in the Appendix, infra,

pp. 27-29.

STATEMENT

The Secretary of Labor instituted this action

against the respondent Local Union under Title IV

3

of the Labor-Management Reporting and Disclosure

Act of 1959 to set aside the general election of officers

conducted by the Local Union on June 12, 1967. The

United Steelworkers of America (respondent “Inter-

national Union”) intervened as a party defendant

(A. 10-11).

Following the election Nicholas Hantzis, an unsuc-

cessful candidate for the office of president, protested

the conduct of the election to the Local Union and

then to the International Union, in accordance with

the International Union’s Constitution and By-Laws

(A. 44). His internal protest complained of several

matters, including the use of union facilities to prepare

campaign literature for the Local Union’s incumbent

president (A. 44). After failing to obtain relief,

Hantzis filed a complaint with the Secretary of Labor

on October 12, 1967, pursuant to Sec. 402(a) of the

Act (29 U.S.C. 482(a)) (App., infra, p. 28). The com-

plaint again charged illegal use of union facilities and

added a specific charge that an unreasonably restrictive

meeting attendance requirement had been imposed as a

condition of candidacy in the election (A. 44)."

The Secretary’s investigation of Hantzis’ complaint

substantiated the charge that union facilities had been

used improperly to promote the re-election of the Lo-

cal Union’s President, in violation of Section 401(g)

of the Act (29 U.S.C. 481(g) ). The Secretary also found

that the meeting attendance requirement was not a rea-

sonable qualification on the right of members to hold of-

fice and that the requirement had not been imposed uni-

‘In his internal protest, Hantzis did not directly challenge the

meeting attendance requirement, but did complain of the manner

in which it was applied. See note 2, infra, p. 5.

4

formly (A. 44). The Secretary advised both respond-

ents of these findings by letter dated November 21,

1967, and invited them to discuss the findings and to

propose voluntary remedial action (A. 43-44). In

order that the parties might fully discuss the findings

and attempt resolution of the issues raised without

litigation, the respondents, by letters dated November

22, 1967, December 26, 1967, and January 30, 1968,

agreed to extend until March 1, 1968, the time in

which suit might be filed by the Secretary of Labor

to set aside the election (A. 5). On December 18, 1967,

and again on January 30, 1968, representatives of the

Secretary met with representatives of the respondents

to discuss the investigative findings (A. 45). When re-

spondents refused to undertake remedial measures, the

Secretary filed this suit on February 29, 1968. The

complaint alleged that the respondent Local Union had

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

(App. infra, pp. 27-28) by imposing an unreason-

able meeting attendance qualification on the right of its

members to be candidates and to hold office, and by fail-

ing to impose that qualification uniformly, and further

alleged that union funds had been expended to promote

the candidacy of the incumbent president in violation of

Section 401(g) of the Act (29 U.S.C. 481(g)) (A.

5-6).

The qualification which the Secretary sought to chal-

lenge, as set forth in the International Union’s Constitu-

tion and its Standard By-Laws for Local Unions, re-

quires a candidate for local union office to have at-

tended at least one-half of the regular Local Union

meetings held during the 36 months preceding the

5

election “unless his Union activities or working hours

prevented his attendance (A. 35, 167).’’ The 36-month

period was not applicable to the respondent Local

Union because it was not chartered until May 1965

(A. 36). Respondent International ruled that, in order

to qualify as candidates in respondent Local Union’s

1967 election, members must have attended or received

credit for attending at least eleven of the 21 local

union meetings held between August 1965 and April

1967 (A. 36).’

At the time of its 1967 election respondent Local

Union had nearly 600 members who were employed

by Howmet Corporation, Aerosystems Division, Loud

Products. Approximately 400 members worked on the

day shift from 7:00 a.m. to 3:30 p.m. About 200

members worked on the swing shift, whose regular

working hours were 3:30 p.m. to midnight. A third

shift of seven or eight employees worked during the

early morning hours. (A. 36). Respondent Local

Union held its monthly meetings in two sessions:

one for the day shift, at 7:00 p.m. on the second

Monday of each month, and one for the swing shift,

beginning at various times between 12:30 a.m. and

1:00 am. on the second Tuesday of each month.

*In his internal protest Hantzis complained about the failure

to include the Local Union’s May and June 1965 meetings in

applying the requirements (A. 168-174).

414-435-712

a

Members on the swing shift frequently worked over.

time until 1 or 2 a.m., and were credited with excused

absences and counted as having attended the meetings

when they worked past the scheduled starting time,

(A. 39-40). In January 1967, the starting time for the

swing shift meeting sessions was changed to 1:00 p.m,

(A. 36-37). Attendance at the day shift meetings aver-

aged 46 members. From August 1965 through Decem-

ber 1966 an average of 25 members attended the swing

shift meetings. When the swing shift meeting was

changed in January 1967, attendance dropped to an

average of 14 members. (A. 37).

Respondent Local Union’s meeting attendance reg-

ister showed that only 36 of the Local Union’s 600

members, including nine officers, had actually attended

the required eleven or more meetings. The district

court estimated that 24 of the 200 swing shift em-

ployees satisfied the meeting attendance requirement

by reason of absences excused for overtime work.

(A. 38). Day shift employees could not obtain meeting

attendance credits for overtime work, since they were

never required to work until 7:00 p.m. G@&==y.

At the nomination meetings held by respondent Lo-

cal Union, 49 members were nominated for office

(A. 38). Among the 22 members who declined nomi-

nation was Marvin E. Wright, who declined because

he thought he was ineligible since he had not attended

any union meetings. In fact, Wright, who was em-

ployed on the swing shift, had sufficient overtime work

credits to satisfy the meeting attendance requirement.

6

7

(A. 39). The Election Committee reviewed the at-

tendance register to ascertain the eligibility of the

remaining 27 nominees. If a nominee had not attended

11 meetings, the Committee requested his foreman to

review the company’s work records to determine

whether he had worked up to or past the scheduled

meeting time on any meeting nights. The Election

Committee ruled four nominees ineligible: George

Pruneri, Elmer Husman, Ray Mahan and Glenn Ross,

who attended five, nine, six and seven meetings, re-

spectively. Ross, who should have been credited with

six excused absences for overtime work, was errone-

ously disqualified. Ed Poynter, who had attended only

eight meetings and lacked sufficient credits for over-

time work, was erroneously ruled eligible, and ran

unsuccessfully for the office of Outside Guard.

(A. 40-41, 43).

At the trial, an expert witness for the government

testified that a study of the constitutions of 72 na-

tional and international unions including 90 percent

of the country’s total union membership showed that

only twelve of these unions imposed a constitutional

requirement of attendance at meetings as a qualifica-

tion of candidacy for local offices, and that respondent

International Union is one of only two such unions

specifying a meeting attendance requirement covering

a period as long as three years (A. 135-136). He also

testified that, in his opinion, attendance at union meet-

ings is not necessary to give members knowledge of the

union’s affairs, and that meeting attendance qualifica-

tions have not operated to increase attendance at

8

union meetings (A. 143-145). Respondents introduced

no contrary evidence, and presented no testimony to

support their contention that members who attend

union meetings are better qualified to serve as officers

than those who do not.

After trial, the district court held that the use of

union facilities to reproduce campaign literature of

the Local Union’s incumbent president violated See.

tion 401(g) of the Act (29 U.S.C. 481(g)), and or

dered a new election for the office of president under

supervision of the Secretary (A. 48). The court ruled

that the Secretary could properly include in his com-

plaint the charge that the meeting attendance qualifica-

tion was unreasonable, since he had afforded respond-

ents adequate notice and an opportunity to remedy the

alleged violation before filing suit (A. 46). The court

held, however, that the meeting attendance qualification

was reasonable, since it was “designed to increase at-

tendance at meetings and insure candidates who have

demonstrated interest in union problems, are familiar

with them, and better qualified to serve as officers of the

union,” and “because anyone who wanted to comply

with it could have complied by attending, or through

the liberal work excuse provision” (A. 38).

The court of appeals affirmed. It held that the See-

retary lacked standing to challenge the meeting at-

tendance qualification, since it had not been questioned

in the complaining member’s internal protest, and

“Congress intended to empower the Secretary to as-

sert those violations that are fairly apparent from a

9

member’s protest to the union and no others”’ (A. 53).

The court of appeals, accordingly, found it unnecessary

to consider whether the attendance requirement violated

the Act (A. 52-53).

SUMMARY OF ARGUMENT

I

The court of appeals erred in holding that the

Secretary of Labor, in an enforcement action under

Section 402 of the Labor-Management Reporting and

Disclosure Act of 1959, cannot allege violations which

were not included in the union member’s internal com-

plaint. This restrictive interpretation of the Secre-

tary’s authority is inconsistent with the language of

Section 402, which empowers the Secretary to bring a

complaint if he finds that a violation has occurred.

And, although the Court explicitly declined to decide

this precise issue in Wirtz v. Local Union No. 125,

Laborers’ International Union, 389 U.S. 477, the

Court’s opinion in that case explained that, in view

of the Secretary’s exclusive authority in this area

and the broad investigative powers conferred on him,

it is ‘most improbable that Congress * * * intended

the shape of the enforcement action to be immutably

fixed by the artfulness of a layman’s complaint * * *.”’

389 U.S. at 482. The court of appeals’ interpretation is

also inconsistent with the Secretary’s “‘vital role * * *

in protecting the public interest * * *” as opposed to

protecting merely the interest of individual complain-

ing union members, 389 U.S. at 483, and with the con-

10

cept articulated by this Court in Wirtz v. Locw 133,

Glass Bottle Blowers Association, 389 U.S. 463, 473,

that “Congress, although committed to minimal inter-

vention, was obviously equally committed to making

that intervention, once warranted, effective in carry-

ing out the basic aim of Title IV.”

Our position is entirely consistent with the statutory

requirement that union members exhaust their internal

remedies before filing a complaint with the Secretary,

This exhaustion requirement is significantly different

from a statutory provision which requires exhaustion

of the remedies of an administrative agency. Such

statutes are designed to make use of the particular

expertise of the relevant agency; that purpose is

served under the present Act by the Secretary's

investigation and determination of whether to bring

a lawsuit, rather than by the requirement that there

must be a complaining union member who has ex-

hausted internal union remedies. The latter require-

ment is intended merely to assure that, if all members

of the union are satisfied, the results of the election

will remain undisturbed. Moreover, in the present

case, the Secretary gave the respondent unions a full

three months to take voluntary remedial action with

respect to the charges which the Secretary later

brought in this lawsuit.

II

The meeting attendance qualification on candidacy

under consideration in this case is not a “reasonable

11

qualification uniformally imposed”, as required by

Section 401(e). As the Court explained in Wirtz v.

Hotel, Motel and Club Employees Union, Local 6,

391 U.S. 492, 499, “[t]he check of democratic elec-

tions as a preventive measure is seriously impaired

by candidacy qualifications which substantially de-

plete the ranks of those who might run in opposition

to incumbents.” Here nearly 90 percent of the union

members were rendered ineligible by the meeting at-

tendance requirement; in our view this fact alone pre-

vents the respondents from meeting their burden of

showing that the attendance requirement falls under

this Court’s narrow definition of the term “reason-

able qualification uniformly imposed”. Respondents’

purported justification for the requirement—that it

was designed to insure that candidates for union office

are familiar with union problems—incorrectly “as-

sumes that rank-and-file union members are unable to

distinguish qualified from unqualified candidates for

particular offices without a demonstration of a can-

didate’s performance in other [union affairs].” Hotel

Employees, supra, 391 U.S. at 504. Furthermore, the

union here is not even “faithful to its own premise,”

391 U.S. at 504, because a member who is excused from

meetings by reason of working overtime is permitted

to run for any office without having actually attended

any meetings.

12

ARGUMENT

I. THE SECRETARY OF LABOR IS NOT RESTRICTED TO Al.

LEGING ONLY THOSE VIOLATIONS WHICH WERE INTER-

NALLY PROTESTED BY THE COMPLAINING UNION MEMBER;

IN THIS CASE HE PROPERLY INCLUDED AN ADDITIONAL

VIOLATION DISCLOSED BY HIS INVESTIGATION WHICH HE

FIRST AFFORDED THE UNION AN OPPORTUNITY 1

REMEDY

In Wirtz v. Local Union No. 125, Laborers’ Inter-

national Union, 389 U.S. 477, this Court held that the

Seecretary’s power to institute an action to invalidate

a union election is not limited to the particular allega-

tion made by a complaining union member. The spe-

cific issue presented in that case was whether the

Secretary could challenge violations which allegedly

had occurred during a union general election, even

though the internal union complaint had involved only

the runoff election held five weeks later. The Court

unanimously held that the Secretary was entitled to

challenge the general election because, on the facts of

that case, the ‘‘union had fair notice from the viola-

tion charged by (the union member) in his protest of

the runoff election that the same unlawfui conduct

probably occurred at the earlier election as well.” 389

U.S. 477, 481. The Court explicitly found it unneces-

sary to consider in Laborers’ International whether

“a member’s protest triggers a § 402 enforcement

action in which the Secretary would be permitted to

file suit challenging any violation of § 401 discovered

13

in his investigation of the member’s complaint.” 389

U.S. at 482."

Although the precise question involved here was thus

not decided in Laborers’ International, the restrictive

interpretation of the Secretary’s authority adopted by

the court below is inconsistent with the purpose of

‘Our position is that the Secretary may bring suit with

respect to any violation he finds in the course of his investi-

gation whether or not that violation is alleged in the in-

ternal complaint or in the union members’ complaint to the

Secretary. This position has been upheld in Shultz v. Local Union

1299, United Steelworkers, 73 LRRM 2673, 62 L.C. $10,720 (E.D.

Mich.) ; Shultz v. Local #1150, United Steelworkers, 75 LRRM

2869, 64 L.C. § 11,288 (S.D. Ind.) ; Wirtz v. /ndependent Petro-

leum Workers, Ine., Local 1, 1,0.W.U., 307 F. Supp. 462 (N.D.

Ind.) ; same case, 75 LRRM 2340, 63 L.C. $11,190. See, also, Wirtz

v. Local 1877, IBEW, 63 LRRM 2029, 54 L.C. $11,391 (N.D. Ohio).

Several district court decisions have held that the Secre-

tary cannot bring suit if the alleged illegality which is the

basis of the suit has not been presented to the union for action

prior to the initiation of suit. £.g., Wirte v. Local Union 169,

International Hod Carriers, 246 F. Supp. 741 (D. Nev.);

Wirte v. Local Unions No. 406, ete., Operating Engineers, 254

F, Supp. 962 (E.D. La.); Wirte v. Local Union No. 450, ete.,

Operating Engineers, 63 LRRM 2105, 54 L. C. §11,451 (S.D.

Tex.). These cases did not hold, however, that the Secretary

was barred from seeking effective relief merely because the

full ramifications of the illegality were not specified in the

internal complaint. They, in fact, allowed relief as to “every

issue which the defendant union had a fair opportunity to con-

sider and resolve.” Wirtz v. Local Union 169, supra, 246 F. Supp.

at 752; Wirt v. Local Union No. 1622, etc., 285 F. Supp. 455 (N.D.

Cal.). The court of appeals for the Second Circuit has held that

the Secretary cannot seek to invalidate an election upon a ground

which was not raised in the union members’ complaint to the Sec-

retary. Local Unions No. 546, ete., International Union of Oper-

ating Engineers v. Wirtz, 381 F. 2d 448. We disagree with this

restriction on the Secretary’s power under Section 402 as well as

with the closely related restriction under consideration in the

present case,

414-435—T1_3

AOE Oe =

or nome

14 '

Title IV of the Labor-Management Reporting .and

Disclosure Act of 1959 as articulated in this Court’s

opinion in Laborers’ International. And, as the Court

there pointed out in rejecting the union’s contention that

the Secretary is limited to the allegations made in the

union member’s initial complaint, ‘‘neither the lan-

guage of the statute nor its legislative history” sup-

ports such a restrictive view of the Secretary’s role,

Indeed, the statute does not, in terms, limit the

Secretary’s investigation or his authority to institute

suit to the violation alleged in the complaint. It enm-

powers him to bring a civil action, after investigating

the union member’s complaint, ‘‘if he finds probable

cause to believe that a violation of this title has oe-

eurred * * *’ (Section 402(b), infra, pp. 28-29)

(emphasis added). It is significant that the statute is

not limited to ‘‘the violation alleged’’ but is framed

in terms which entitle the Secretary to proceed, after

a protest has been made to the union and rejected, if

he finds any violation to have occurred. This language

was deliberately chosen by Congress. A prior draft

of the bill (S. 1002, 86th Cong. Ist Sess., 105 Cong.

Ree. 2067) had provided that if the union member

alleged a violation of the Act, the Secretary was to

investigate “such allegation” and institute an action

if he found probable cause to believe such allegation

is true. But under the language ultimately adopted,

the Secretary’s responsibility is not similarly quali-

fied; he is, instead, as the Senate Report explained,

15

“to investigate the complaint and determine whether

there is probable cause to believe that an election was

not held in conformity with the requirements of the

pill’”’ (S. Rep. No. 187, 86th Cong., Ist Sess., 21).

Congress’ choice of the broader formulation was

consistent with the legislative scheme of the Act as a

whole, which entrusted enforcement of Title IV ex-

clusively to the Secretary of Labor. Congress rejected

proposed bills which would have made Title IV rights

enforceable by private suit (H.R. 8342, 86th Cong.,

Ist Sess., 105 Cong. Rec. 15887; S. 748, 86th Cong.,

Ist Sess., 105 Cong. Ree. 1276), and ‘‘decided to utilize

the special knowledge and discretion of the Secretary

of Labor in order best to serve the public interest’’

(Calhoon v. Harvey, 379 U.S. 134, 140).

While the Secretary may act culy in response to a

complaint by a member of the union, it would, in our

view, make little sense to restrict the scope of the law-

suit brought by the Secretary to the four corners of

the complaint the union member originally made.

As this court recognized in Laborers’ International,

union members do not, as a rule, file carefully drafted

complaints. 389 U.S. at 482. Consequently, if the com-

plaint were the measure of the Secretary’s powers, he

would often be artificially limited, as here, by tech-

nical flaws in that document or by the individual

member’s failure to appreciate the full scope or con-

sequences of the violation of which he is complain-

ing. Indeed, his investigation of the complaint is not

16

so limited * and, as this Court noted in the Laborers’

International case,

it is most improbable that Congress deliber-

ately settled exclusive enforcement jurisdic-

tion on the Secretary and granted him broad

investigative powers to discharge his respon-

sibilities, yet intended the shape of the enforce-

ment action to be immutably fixed by the art-

fulness of a layman’s complaint which often

must be based on incomplete information. The

expertise and resources of the Labor Depart-

ment were surely meant to have a broader play.

[389 U.S. at 482. ]

Furthermore, as a practical matter, the member’s

protest ordinarily encompasses a particular grievance

which has contributed to his own or his faction’s fail-

ure to attain office in an election. The broader public

interest whose enforcement is entrusted to the Secre-

ary is not so narrowly oriented. See Beaird, Union

Officer Election Provisions of the Labor-Management

Reporting and Disclosure Act of 1959, 51 Va. L. Rey.

1306, 1329-1330. The effect of restricting the Secre-

tary to pursuing only those violations alluded to in

the member’s protest would be to subordinate the

broader public interest to the private motivation of

the complaining member. The Secretary’s position,

that his authority is not so confined, is plainly more

consistent with the remedial purpose of Title IV. As

this Court observed in the Laborers’ case:

*The Secretary’s investigation is not limited by the subject

matter or scope of the complaint received, or of the preceding

internal union protest. Wirtz v. Local 191, International Bro.

of Teamsters, 321 F. 2d 445 (C.A. 2); Local 57, International

Union of Operating Engineers v. Wirtz, 346 F. 2d 552 (C.A.

1).

17

[S]o to constrict the Secretary would be in-

consistent with his vital role * * * in protecting

the public interest bound up in Title IV. The

Act was not designed merely to protect the

right of a union member to run for a particular

union office in a particular election. Title IV’s

special function in furthering the general goals

of the LMRDA is to insure free and democratic

union elections, the regulations of the union

electoral process enacted in the Title having

been regarded as necessary protections of the

public interest as well as of the rights and in-

terests of union members. [389 U.S. at 482-

483.] °

*In the Laborers’ case (389 U.S. at 483), the Court also rec-

ognized an analogy between the Secretary’s role under Title IV

of the Labor-Management Reporting and Disclosure Act of 1959

and that of the General Counsel of the National Labor Rela-

tions Board in investigating unfair labor practices, which he

may do only after receipt of a charge. Pertinent, therefore, is

the Court’s discussion of the role of the Board’s General Coun-

sel, in Labor Board v. Fant Milling Co., 360 U.S. 301, 307-308 :

“A charge filed with the Labor Board is not to be measured

by the standards applicable to a pleading in a private lawsuit.

Its purpose is merely to set in motion the machinery of an in-

quiry. * * * The responsibility of making that inquiry, and

of framing the issues in the case is one that Congress has

imposed upon the Board, not the charging party. To confine

the Board in its inquiry and in framing the complaint to the

specific matters alleged in the charge would reduce the statu-

tory machinery to a vehicle for the vindication of private

rights. This would be alien to the basic purpose of the Act.

The Board was created not to adjudicate private controversies

but to advance the public interest * * *,

“Once its jurisdiction is invoked the Board must be left free

to make full inquiry under its broad investigatory power in

order properly to discharge the duty of protecting public rights

which Congress has imposed upon it. * * *”

nT SRN LMR

18

The present case illustrates the extent to which the

holding of the court of appeals could undermine the

effectiveness of the Title IV remedy. The violation

protested by Hantzis was, in the Secretary’s view and

in the view of the district court and the court of ap-

peals, sufficient justification for setting aside the elee-

tion of respondent Local Union’s president. In a sv-

pervised election, the Secretary must seek to correct

all defects in the first election, to ‘‘prevent the unfair-

ness in the first election from infecting, directly or

indirectly, the remedial election” (see Wirtz v. Local

153, Glass Bottle Blowers Association, 389 U.S. 463,

474). Furthermore, Section 402(¢) of the Act requires

that a supervised election be held “so far as lawful

and practicable, in conformity with the constitution

and bylaws of the labor organization.” However, in

the view of the court below, the Secretary must super-

vise an election in accordance with provisions of the

organization’s by-laws which he deems unlawful un-

less there has been a specific complaint by a member

to the union about such provisions.°

Moreover, in the absence of a judicial determination

that the qualification at issue is unreasonable, it will

almost surely be imposed again in the union’s next

¢ We recognize that theoretically the Secretary could raise the

question concerning the validity of particular constitutional pro-

visions in supplementary proceedings in connection with the

conduct of the supervised election. However, this course would

undermine the congressional intent that supervised elections,

once ordered, should be held without delay. See Section 402(d)

(29 U.S.C. 482(d)), which provides that an order directing an

election, while appealable, shall not be stayed pending appeal.

19

regular election, and thereafter in succeeding elections

unless a member is moved to protest it specifically.

This result is plainly inconsistent with this Court’s

observation in Wirtz v. Local 153, Glass Bottle Blow-

ers Association, 389 U.S. 463, 473, that ‘‘Congress,

although committed to minimal intervention, was ob-

viously equally committed to making that intervention,

once warranted, effective in carrying out the basic aim

of Title IV.”

As a practical matter, the statutory time schedule’

effectively precludes the Secretary from inviting a

complaining member, or another member, of the

union to re-invoke internal remedies with respect to

violations outside the scope of the initial protest dis-

closed by his investigation. But even if it were feasible,

such a procedure would not serve any of the statutory

objectives. While Section 402(a) authorizes the Secre-

tary to step in only at the request of a union member

who has exhausted internal union remedies, it does

not endow the union with any fact-finding or policy-

determining functions. Its exhaustion requirement is

significantly different from a statutory provision

which requires exhaustion of the remedies of a gov-

ernmental administrative agency or which vests pri-

mary jurisdiction over a dispute in such an agency.

Such statutes are designed, in varying degrees, to

assure a leading role for the expert agency in finding

"Section 402(b) of the Act provides that after a complaint

is filed with the Secretary, he has sixty days in which to con-

duct an investigation of the complaint and bring an action

against the union.

—

the facts, interpreting the facts, initially construing

the statute and, in general, contributing to uniformity

in the administration of the law.

To the extent that any of these purposes are to be

served under the present Act, they are served by the

Secretary’s investigation and determination of

whether to bring a lawsuit, rather than by the require-

ment that there must be a complaining union member

who has exhausted internal union remedies. Congress

has, of course, not conferred any form of governmental

authority over these disputes on the unions, whose of-

20

ficers tend to have an adversary interest in such dis-

putes; and it is obvious that the various unions in-

volved in such disputes, with their diversity of views

and of internal remedies,* could not be expected to

play a role comparable to that of a single, expert ad-

ministrative agency in promoting consistency in the

Act’s interpretation or administration.

Indeed, as this Court has explained, the exhaustion

requirement of Section 402(a) is basically intended

only to assure that the results of union elections will not

be disturbed if they are satisfactory to all members of

the union or if dissatisfaction with the results can be

| adequately alleviated through internal union remedies.

| See Laborers’ International, supra, 389 U.S. 484.

Petitioner has been mindful here of the congres-

sional intent to preserve ‘‘a maximum amount of

independence and self-government by giving every

international union the opportunity to correct im-

proper local elections’’ (S. Rep. No. 187, 86th Cong., 1st

8 See, generally, An Analysis: Local Union Election Appeals,

Department of Labor, 1966.

|

|

21

Sess., 21). He did not begin his investigation until he had

satisfied himself that Hantzis had invoked his internal

union remedies. In addition, he has adopted the prac-

tice, followed in this case, of notifying the union and its

parent organization in advance of filing suit of all viola-

tions disclosed by his investigation, and giving the union

at that time the opportunity to take voluntary cor-

rective action. In the present case, the respondent

unions were first notified of the Secretary’s findings

by letter dated November 21, 1967. The Secretary,

after agreeing to three successive extensions of time,

filed this suit on February 29, 1968. Thus, the respond-

ents had a full three months—the equivalent of the

time alloted to them under Section 402(a)(2) for eon-

sideration of a member’s protest—to offer voluntary

remedial action. Their proffered defense, therefore, is

not that they lacked an opportunity to consider and

rectify all the violations alleged in the Secretary’s

complaint, but only that such opportunity was pre-

sented to them by the Secretary following his investi-

gation and not in the member’s initial protest. Con-

gress surely did not intend that this technical dis-

tinction would defeat the dominant statutory purpose

of insuring ‘‘free and democratic union elections’’

(Laborers’ International, supra, 389 U.S. at 483).

II. RESPONDENTS’ RULE REQUIRING A CANDIDATE FOR LO-

CAL UNION OFFICE TO HAVE ATTENDED AT LEAST ONE-

HALF OF THE LOCAL UNION MEETINGS HELD DURING A

THREE-YEAR PERIOD “UNLESS HIS UNION ACTIVITIES OR

WORKING HOURS PREVENTED HIS ATTENDANCE” WAS

NOT A REASONABLE QUALIFICATION UNIFORMLY IMPOSED

Because of its national importance in the administra-

tion of the Act, we have asked this Court—and re-

22

spondents have joined in this request (Br. Opp. 16)—

also to decide the substantive issue left unresolved by

the court below: whether the meeting attendance qual-

ification on candidacy applied in the challenged elec-

tion is a “reasonable qualification uniformly im-

posed,’’ as required by Section 401(e).° This ques-

tion was decided by the district court,” and the record

as to it\@omplete (see Statement, supra, p. 8).

In our view, the district court’s decision reflected

a basic misunderstanding of the principles governing

the determination whether restrictions on candidacy

for local union office are reasonable. In Wirtz v. Ho-

tel, Motel and Club Employees Union, Local 6, 391

U.S. 492, this Court held invalid a union bylaw which

limited eligibility for certain major union offices to

members who had served in one or more elective

offices. The Court emphasized the congressional in-

tent to keep union leadership responsive to the mem-

bership through the election process, and stated that

“The check of democratic elections as a preventive

measure is seriously impaired by candidacy qualifica-

tions which substantially deplete the ranks of those

who might run in opposition to incumbents.”’ 391 U.S.

at 499. ‘“‘[G]Jiven the objective of Title IV,’’ the Court

held, ‘“‘a candidacy limitation which renders 93% of

® This issue was presented by the second question of the peti-

tion, which was granted without limitation.

1 Two other district courts have followed the decision of the

district court in the instant case, permitting the Secretary to

challenge the validity of the rule even though it was not chal-

lenged in the union complaint, but upholding its reasonable-

ness. Shultz v. Local Union 1299, Steelworkers, 73 LRRM 2673,

62 L.C. §10,720 (E.D. Mich.); Shultz v. Local #1150, Steel-

workers, 75 LRRM 2869, 64 L.C. $11,288 (S.D. Ind.).

23

union ‘members ineligible for office can hardly be a

‘reasonable qualification’ ’’. Id. at 502.

We submit that the qualification imposed in the in-

stant case is unreasonable under the standard set

forth by this Court in the Hotel Employees case.

Nearly 90 percent of the union members here were

rendered ineligible by the meeting attendance rule,

a fact which, in the absence of extraordinary cir-

cumstances, would seem to render the qualification

invalid per se. The district court concluded that the

rule was not unreasonable “because anyone who

wanted to comply with it could have complied by

attending, or through the liberal work excuse pro-

vision” (A. 38). However, in the case of employees

whose work schedules do not qualify them for the

excuse provision, compliance with the rule requires

a considerable effort on the part of the would-be

candidate over an extended period of time preceding

the election.” If controversial issues were to arise

within the year preceding the election, an opposition

group might be unable to muster a slate of candidates

with sufficient foresight to have accumulated the nec-

“In the present case, the local union had been in existence

for only two years before the election, so that candidates were

required to have attended (or to have been excused from) 11

out of 21 monthly meetings. Even under this shortened version

of the three-year rule in the International Constitution, a mem-

ber would have to begin attending every subsequent meeting

nearly a year before the election in order to qualify. Had the

International rule been in full force and effect, a member would

have to begin attending meetings, and then to attend every

single meeting held, for a full 18 months in order to be a

candidate. See Wirtz v. Independent Workers Union of Florida,

65 LRRM 2104, 55 L. C. $11,857 (M.D.) Fla.).

24

essary meeting credits. Respondents’ argument to the

courts below—that the attendance requirement was

designed to insure that candidates for union office

are familiar with and interested in union problems—"

assumes that rank-and-file union members are

unable to distinguish qualified from unqualified

candidates for particular offices without a dem-

onstration of a candidate’s performance in

other [union affairs]. But Congress’ model of

democratic elections was political elections

in this country, and they are not based on any

such assumption. Rather, in those elections the

assumption is that voters will exercise common

sense and judgment in casting their ballots,

* * * [Hotel Employees, supra, 391 U.S. at

504. ] 18

The Court stated in Hotel Employees that “Con-

gress plainly did not intend that the authorization in

§401(e) of ‘reasonable qualifications uniformly im-

posed’ should be given a broad reach.’’ 391 U.S. at

499. This authorization, like exceptions to other re-

medial legislation, should be narrowly construed, and

the burden of proof should rest upon the party as-

serting it. See, e.g., Phillips Co. v. Walling, 324 US.

490, 493; Mitchell v. Kentucky Finance Co., 359 US.

290, 295. Respondents here not only failed to intro-

* While the district court also held that the attendance r-

quirement was justified on the ground that it was “designed to

increase attendance at meetings” (supra, p. 8), it would, of

course, be possible for the union to devise other inducements or

sanctions to encourage ettendance which would not interfere

with the representative character of union elections.

8 See, also, Wirtz v. Local Union 262, Glass Bottle Blowers

Ass'n 290 F. Supp. 965, 968 (N.D. Cal.).

|

25

duce evidence that union members become better qual-

ified to hold union office by attending meetings, but

also failed to rebut expert testimony in this record

to the contrary. See supra, pp. 7-8. As in Hotel Em-

ployees, the respondent unions have failed to sustain

their burden. Cf. 391 U.S. at 503.

Moreover, here, as in Hotel Employees, the union

“is not faithful to its own premise.” 391 U.S. at 504.

In Hotel Employees, a member could be appointed

to any office without satisfying the prior office-hold-

ing requirement. In this case, a member could be

eligible as a candidate without ever having attended

a single meeting, provided that he was employed on

the swing shift and was called upon to work over-

time on a sufficient number of meeting nights. In addi-

tion, the meeting attendance requirement operates to

discriminate against day-shift employee members, who

are never entitled to take advantage of the work ex-

cuse provision. Cf. Wirtz v. Local 153, Glass Bottle

Blowers Ass’n, 244 F. Supp. 745, 748 (W.D. Pa.),

reversed on other grounds, 405 F.2d 176 (C.A. 3).

Since the union electorate is thus entrusted with the

evaluation of whatever bearing they deem swing shift

candidates’ non-attendance of meetings to have on

their qualifications for office, there is obviously no

reason why the voters cannot similarly make their

own evaluation of the relative importance of other

candidates’ attendance or nonattendance."*

“ We also argued in the courts below that the qualification was

not uniformly imposed in this particular election because one

candidate was disqualified notwithstanding a combined record

of meeting attendance and excused absences which satisfied the

requirement, while another member was permitted to be a van-

26

CONCLUSION

The decision of the court of appeals should be re-

versed and the case remanded to the district court

with directions to order an election under the super-

vision of the Secretary.

Erwin N. GRISwoLp,

Solicitor General.

L. Patrick Gray, ITI,

Assistant Attorney General,

Lawrence G. WALLACE,

Deputy Solicitor General.

Ricuarp B. Stone,

Assistant to the Solicitor General.

Perer G. Nasu,

Solicitor,

Grorce T. AVERY,

Associate Solicitor,

Beate BiLocn,

CorneE.ius 8S. Donocuug, Jr.,

Attorneys,

Department of Labor.

JaNvARY 1971.

didate although he did not satisfy the requirement, either by

actual attendance at meetings or by a combination of attendance

and excused absences (see supra, p. 7). The district court found

that these aberrations were the result of “honest, unintentional

mistakes”. This finding, however, is not a defense under the Act,

which requires uniform application of eligibility qualifications,

regardless of intent or motive. See Wirtz v. Local 191, /nterna-

tional Brotherhood of Teamsters, etc., 226 F. Supp. 179, 186 (D.

Conn.); Wirtz v. Independent Workers Union of Florida, 65

LRRM 2104, 55 L.C. 911,857 (M.D. Fla.). Since uniformity is

basic to democratic and free elections, the district court erred in

ruling that these errors in the conduct of the election did not war-

rant setting it aside.

APPENDIX

SratutTes INVOLVED

The Labor-Management Reporting and Disclosure

Act of 1959, 73 Stat. 519, 29 U.S.C. 401 et seq., pro-

vides in pertinent part:

Trrite ITV. ELectTions

TERMS OF OFFICE; ELECTION PROCEDURES

7 7 + 7 +

Src. 401. (b) Every local labor organization

shall elect its officers not less often than once

every three years by secret ballot among the

members in good standing.

* * * * *

(e) In any election required by this section

which is to be held by secret ballot a reasonable

opportunity shall be given for the nomination

of candidates and every member in good stand-

ing shall be eligible to be a candidate and to

hold office (subject to section 504 and to rea-

sonable qualifications uniformly imposed) and

shall have the right to vote for or otherwise

support the candidate or candidates of his

choice, without being subject to penalty, disci-

pline, or improper interference or reprisal of

any kind by such organization or any member

thereof. Not less than fifteen days prior to

the election notice thereof shall be mailed to

each member at his last known home address.

Each member in good standing shall be entitled

to one vote. No member whose dues have been

withheld by his employer for payment to such

organization pursuant to his voluntary au-

thorization provided for in a collective bar-

(27)

gaining agreement shall be declared ineligible

to vote or be a candidate for office in such or-

ganization by reason of alleged delay or default

in the payment of dues. The votes cast by

members of each local labor organization shall

be counted, and the results published, sepa-

rately. The election officials designated in the

constitution and bylaws or the secretary, if no

other official is designated, shall preserve for

one year the ballots and all other records per-

taining to the election. The election shall be

conducted in accordance with the constitution

and bylaws of such organization insofar as they

are not inconsistent with the provisions of this

title.

* * * . .

ENFORCEMENT

Src. 402. (a) A member of a labor organiza-

tion—

(1) who has exhausted the remedies available

under the constitution and bylaws of such or-

ganization and of any parent body or,

(2) who has invoked such available remedies

without obtaining a final decision within three

calendar months after their invocation.

may file a complaint with the Secretary within

one calendar month thereafter alleging the vio-

lation of any provision of section 401 (includ-

ing violation of the constitution and bylaws of

the labor organization pertaining to the elec-

tion and removal of officers). The challenged

election shall be presumed valid pending a final

decision thereon (as hereinafter provided) and

in the interim the affairs of the organization

shall be conducted by the officers elected or in

such other manner as its constitution and by-

laws may provide.

(b) The Secretary shall investigate such

complaint and, if he finds probable cause to

believe that a violation of this title has oc-

curred and has not been remedied, he shall,

29

within sixty days after the filing of such com-

plaint, bring a civil action against the labor

organization as an entity in the district court

of the United States in which such labor orga-

nization maintains its principal office to set

aside the invalid election, if any, and to direct

the conduct of an election or hearing and vote

u the removal of officers under the super-

vision of the Secretary and in accordance with

the provisions of this title and such rules and

regulations as the Secretary may prescribe.

The court shall have power to take such action

as it deems proper to preserve the assets of the

labor o ization.

(ec) If, upon a preponderance of the evidence

after a trial upon the merits, the court finds—

(1) that an election has not been held within

the time prescribed by section 401, or

(2) that the violation of section 401 may have

affected the outcome of an election,

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

void and direct the conduct of a new election

under supervision of the Secretary and, so far

as lawful and practicable, in conformity with

the constitution and bylaws of the labor o i-

zation. The Secretary shall promptly outile

the court the names of the persons elected, and

the court shall thereupon enter a decree declar-

ing such persons to be the officers of the labor

organization. If the proceeding is for the re-

moval of officers pursuant to subsection (h) of

section 401, the Secretary shall certify the

results of the vote and the court shall

enter a decree declaring whether such persons

have been removed as officers of the labor

organization.

(d) An order directing an election, dismiss-

ing a complaint, or designating elected officers

of a labor organization shall be appealable in

the same manner as the final judgment in a

civil action, but an order directing an election

shall not be stayed pending appeal.

U.S. GOVERNMENT PRINTING OFFICE: t971