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

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## Record

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

## Text

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386413_0306%3A4. Public record. Not legal advice.