Brief for Respondent — Trbovich v. Mine Workers

Supreme Court brief1972

Ask Donna

What actually matters in this document.

Text

| a ae

“Supreme Court of the United States

OcToBER TERM, 1971

No. 71-119

MIKE TRBOVICH,

Petitioner,

UNITED MINE WoRKERS OF AMERICA, et al.,

' Respondents.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF.

APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF OF RESPONDENT,

UNITED MINE WORKERS OF AMERICA

EDWARD L. CAREY

HARRISON Comss

WILLARD P. OwENs ©

CHARLES L. WIDMAN

900 Fifteenth Street, N.W.

Washington, D.C. 20005

M. E. Borarsky

512 Kanawha Valley Building

Charleston, W: Va. 25301

Counsel for Respondent,

United Mine Workers of America

FD JARRETT PRINTING COMPANY, CHARLESTON, W. VA.

fra

poe toe:

Faas

INDEX .

TABLE OF CONTENTS

Page

OPINIONS BELOW _____ 1

JURISDICTION eet ——— se

. STATUTES AND RULES JNVOLVED.__________ — 2

QUESTION PRESENTED t oedoeneedaoee ee

COUNTERSTATEMENT OF THE CASE

A. The 1969 Election; The Challenge Thereof; and

The Secretary of Labor’s Investigation...___

B. The Secretary of Labor’s Action oe

C. Petitioner’s Motion to Intervene

D. The Secretary’s Reasons for Refusing to Con-

duct a Pre-Election Investigation and for Not

Including the Two Grounds Urged by Inter-

venor - ae ;

1. . |

, “ _ ce 8

3. 2 _ . 9

E. The Lower Courts’ J udgments._______ 7 u

> Summary OF ARGUMENT ST ee _ 12

I 6 cin se ce _ 12

II. _ 14

oO. fF WD HD) bv

PE BO NILE DOA DN

ARGUMENT

IT.

Page. |

THE CouRT OF APPEALS, AFFIRMING THE Dis-

_TRICT Court’s MEMORANDUM OPINION AND

JUDGMENT, CORRECTLY HELD THAT ENFORCE-

MENT OF Post-ELECTION REMEDY TO CHALLENGE ~

_ A UNION ELEcTION Is STATUTORILY THE EXCLU- |

SIVE FUNCTION OF THE SECRETARY OF LABOR___

A. The Statutory Language

B. The Act’s Legislative History Challenges

Petitioner’s Right to Intervene

C. Motions to Intervene Have Been Rejected

by Federal Courts

PETITIONER Is Not ENTITLED TO INTERVENE AS |

OF RIGHT UNDER RULE 24(a), FEDERAL RULES

OF CIVIL PROCEDURE...

A. Petitioner’s Right to Intervene Has Not

‘Been Conceded by UMW

" B. Rule 82 Precludes Application of Rule 24,

CONCLUSION

Federal | Rules

C. In Any Event, Petitioner Does Not Meet

Rule 24(a)’s Requirements for Intervention

as of Right__.

-D. Petitioner’s Citations Are Not es

of His pease ae to Intervene.

> GOUT EEN AD SOT a wa Sm me -

TABLE OF CASES |

Page

Blankenship, et al. v. W. A. Boyle, et al.,

Civil No. 2186-69, D.D.C.... : 9°

Calhoon v. Harvey, 379 U.S. 134, 140 (1964) if

Cascade Natural Gas Corp. v. El Paso Natural fas

Corp., 386 U.S. 129 (1967). : 28

Citizens to Preserve Overton Park v. Volpe, 401US. —

402 (1971) a 28

Colgate-Palmolive-Peet Co. v. NLRB, 338 U.S. 355, .

364 (1949) _ _ 13, 21, 22

DeVito v. Shultz, DC, D.C., 1969, 300 F.Supp. 381... 22 -

G. & P. Amusement Co. v. Regent Theater Co., DC,

N.D. Ohio, 1952, 107 F.Supp. 453, ae 15, 28

Griggs v. Duke Power Co., 28 L. ed 2d 158, 165

(1971) . — oe 14, 28

Hodgson v. Steelworkers Local 6799, 403 U.S. 333

~ (1971) . 27

Hodgson v. United Mine Workers of America, 51

F.R. D, 270 (1970), 77 LRRM 2496... 1

Int. Union, UAW v. Scofield, 382 U.S. 205, 212, 215,

219 (1965) . 26, 27, 28

Katrinic v. Wirtz, DC, D.C., 1966, 62 LRRM 2557. 22

Lewis, et al. v. Pennington, 6 Cir., 325 F.2d 804, 818

(1963) - | 8

Mamula v. United Steelworkers of America, 3 Cir.,

304 F.2d 108 (1962) a | (22

yeas a ceca tel my TD

STACI BEER ESAS pt ANG I NDE CPE PARP fy) Peo A

Page

McGuire v. Locomotive Engineers, 6 Cir., 426 F. 2d

504 (1970). eeteessedeeeeebneee eds Oe

Morrissey v. Shultz, DC, S.D. N.Y., 1970; 311 sei

744, 74 LRRM 2679 . ie tegen eegeeaees Oe?

NLRB v. Exchange Parts, 375 U.S. 405 (1964). ue

Ravaschieri v. Schultz, DC, S.D. N.Y., 1970, 75

LRRM 2272.00. «22

Reynolds v. Marlene Industries Cae DC, S.D. N.Y.,

1966, 250 F.Supp. 722. es re «|

Sears, Roebuck and Co. v. Carnet etc. Layers, 10

Cir., 410 F.2d 1148, 1151 (1969)... 15, 25, 27

Sears, Roebuck and Co. v. Carpet, etc. Layers, 397

U.S. 655 (1970). ene: Sane 5

Shultz v. Steelworkers, DC, W.D. Pa., 1970, 313

F.Supp. 549, 74 LRRM 2222... 2.1, 22

Shultz v. United Steelworkers of America, DC, W.D.

Pa., 1970,.312 F.Supp. 538, 539... 28

- Stein v. Wirtz, 10 Cir., 366 F.2d 188, 189 (1966), cert.

den. 386 U.S. 996 (1967)... 13, 14, 21, 23

United Steelworkers v. R. H. Bouligny, Inc. , 382.U.S.

145, 153 (1965) a 15, 25

Van Horn v. Lewis, D.D.C., 1948, 79 F.Supp. 541. 8,9

Wirtz v. Local 125, Laborers Int. Union, etc., 389 U.S.

477 (1968) 2

Wirtz v. Local -153, Glass Blowers Assn., 389 U.S.

463, 471-73, 475 (1968) 14, 17, 24

Page

Wirtz v. Local Union No. 410, et al., Int. Union of

Operating Engineers, 2 Cir., 366 F.2d 438, 442

(1966) 2 20, 22

Wirtz v. Local 560, Teamsters, DC, N.J., 1965, 61

LRRM 2470 _ 22

Wirtz v. Local 825, DC,-N.J., 1965, 60 LRRM 2092 22

Wirtz v. Local Union No. 1377, Int. Bro. of Electrical

Workers, DC, N.D. Ohio, 1968, 288 F.Supp. 914 22

Wirtz v. Operating Engineers, DC, C.D. Calif., 1967,

66 LRRM 2080 . ee eee ee 7

Wirtz v. N ational Maritime Union of America, 2 Cir.,

- 409 F.2d 1340 (1969) 22

Yablonski, et al. v. United Mine Workers of America,

Civil No. 3436-69, D.D.C. sub nom Karl Krafton,

et al. (including Mike Trbovich) v. United Mine

Workers of America. Sees 10

STATUTES _ ;

28 USCA 1254(1) i 2

28 USCA 2101(c)_ oe 2

29 USCA 185 11

29 USCA 501(a) and (b) 11

Labor Management Relations Act, 1947 _ iets Ol

Section 10(1) , 7 4

Labor-Management Reporting and Disclosure Act

of 1959 (29 USCA 481, et seq.) 2, 3, 4, 5, 6, 7,

8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21,

22, 24, 25, si 28

y eae ro

; - | Page

Title I pee eS ee Tee _. 20

Section 102 (29 USCA 412)... 20

Title 1 ee , 6,11

Section 201 (29 USCA 431). 6

Section 210 (29 USCA 440).

Title II i 20

| Section 304 (29 USCA 464) 20

TitleIV.00 2, 8, 4, 5, 8, 12, 13, 14,

15, 16, 17, 19, 20, 21, 22, 24, 25

Section 401 (29 USCA 481). 2

Section 401(c) [29 USCA 481(c)] |. 20

Section 401(e) [29 USCA 481(e)] 8

Section 402 (29 USCA 482)... 2,18

Section 402(a) [29 USCA 482(a)] 3, 16

Section 402(b.) [29 USCA 482 (b)]_.. 4,15,25 .

Section 403 (29 USCA 483) _ 2, 12, 13, 16, 18, 21

Title VI - Monee cece neb ede eee ee ee 2,7

Section 601(a) [29 USCA o21 (a)] _ reap

| National Labor Relations Act _ Setters nO

RULES

Federal Rules of Civil Procedure:

Rule 24(a)_ 2, 13, 14, 21, 22, 23, 24, 27, 28

Rule 82. | _...2, 14, 23, 27, 28

MISCELLANEOUS

Page

_ Legislative History of the Labor-Management Re-

porting and Disclosure Act of 1959 (Published -

by the National Labor Relations Board—U. S.

Government Printing Office, 1959), Vol. I, pp:

29, 62-64, 84, 112, 338, 376, 397, 417, 687, 727,

934, 939; Vol. II, pp. 1431, et seq., 1452-53, 1693-

1702, 1738-39 _____ 18, 19

Moore's Federal Practice, 2d Ed., Vol. 3B, 124.09-1[1),

pp. 284-85 - 24

Moore’s Federal Pra¢tice, 2d Ed. Vol. 3B, 124.09-114],

p. 316 15, 24

INDEX TO APPENDIX

Title IV: |

§401 (29 USCA 481). da

§402 (29 USCA 482). 5a

$403. (29 USCA 483) 7a

Title VI: 3 |

~ §601 (29 USCA 521)... Se eee ee Ta

Federal Rules of Civil Procedure:

Rule >A |) eee — 8a

Rule 82. Se eA nT aE ee . 8a

vii

LI PARP RE EN, git

’ IN THE

| Supreme Court of the United States

OCTOBER TERM, 1971

No. 71-119

MIKE TRBOVICH,

Petitioner, -

Vv. :

Unitep Mine Workers oF AMERICA, et al.,

Respondents.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE DISTRICT OF COLUMBIA _CIRCUIT

_ BRIEF OF RESPONDENT,

UNITED MINE. WORKERS OF AMERICA.

OPINIONS BELOW

‘The district court’s Memorandum Opinion, published

as Hodgson v. United Mine Workers of America, appears

in.51 F.R.D. 270 (1970) and in the Appendix filed herein

at p. 111. The Court of Appeals affirmed without opinion.

—— Hts judgment, published in 77 LRRM 2496, appears in the

Appendix herein (p. 122).' —— .

‘Herein, the term “district court” refers to the United States District

Court for the District of Columbia, and the term “Court of Appeais”.

refers to the United States Court of Appeals for the District of

Columbia Circuit.

Herein; Petitioner Trobovich is referred .to as “petitioner” or “inter-

venor”; Respondent United Mine Workers of America as “UMW”; and

Respondent James Day Hodgson, Secretary of Labor, as “Secretary”.

Unless otherwise indicated, all emphases herein are supplied. —~

CLOT NS

eres

phen

JURISDICTION

_ By order entered April 27, 1971, the Court of Appeals:

affirmed the district court’s denial of petitioner’s Motion

for-Leave to Intervene (A. 122).’ The Petition for Cer-

tiorari, timely filed under 28 USCA 2101(c), was granted

October 19, 1971 (A. 122). This Court’s jurisdiction

_rests upon 28 USCA 1254(1).

STATUTES AND RULES INVOLVED

Statutory provisions involved are Sections 401, 402,

403 and 601(a) of the Landrum-Griffin Act [29 USCA

481, 482 483 and 521(a)]. Involved also are Rule 24(a)

and Rule 82, Federal Rules of Civil Procedure. Provi-

‘sions of the statutes and Rules involved are found in

Appenr.ix A hereto.

QUESTION PRESENTED

‘ Whether a member of a labor organization who con-

cededly satisfies all conditions for intervention of right

under Rule 24(a), Federal Rules of Civil Procedure, is

entitled to intervene,.on behalf of himself and other

members desiring a-new election of union officers, in a

civil suit brought by the Secretary of Labor under the

Labor-Management Reporting and Disclosure Act.of 1959

(called “LMRDA” or “Act’) [29 USCA 481, et seq.] to

set aside a union eiection.

COUNTERSTATEMENT -OF THE CASE

A. 1969 ELECTION; THE CHALLENGE THEREOF; AND

T SECRETARY OF LABOR’S INVESTIGATION.

On December 9, 1969, an éleetion of UMW’s Inter-

' ?The abbreviation “A, ” refers to the printed Appendix filed herein

. by petitioner.

national Officers was held among 195,000 members’ and

climaxed a bitter contest for UMW’s presidency between

W. A. Boyle, the incumbent President, and Joseph A.

“Jock” Yablonski, in which the official tally showed

Boyle received 80,577 votes and. Yablonski received

46,073 (Pet. Br. 8, 10).*

On January 20, 1970, Mike Trbovich, campaign man-

ager for Yablonski, filed a formal complaint with the

Labor Department, through Joseph Rauh, Jr., challeng-

ing the December 9 election “for reasons stated in

Yablonski letter to International tellers” and in “Rauh

letter to you dated January 13th”, requesting a Labor

Department investigation of election and stating ‘new

nominations and new elections essential” (A. 35).

Though under the Act’s Section 402(a) [29 USCA 482(a)],

exhaustion of a member’s union remedies is prerequisite .

to filing a complaint with the Secretgry of Labor for an

election investigation, respondent JJMW, through its

General Counsel, requested the Secretary to conduct an

immediate investigation of the December 9 election,

waiving UMW procedures.

A February 21 letter from attorney Rauh to the Secre-

tary, complaining the Yablonski forces had unsuccess-

fully pleaded that the Secretary enforce the Act against

~ stthough an International President, Vice President and Secretary

Treasurer, as wel! as Auditors and Tellers, were elected, petitioner

apparently concests only the International President’s election.

“The abbreviation ‘Pet. = refers to petitioner’s brief filed herein.

Petitioner’s réference (Pet. Br. 10) to discovery of the bodies of

Mr. and Mrs. Yabionski and their daughter is wholly irrelevant to the

issue herein and its inclusion obviously is for purposes of prejudice.

Similarly, statements from Hearings, Subcommittee on Labor, UMW

‘—1971, July 12, i971, and Senate Hearings, Subcommittee on "Labor,

UMW Election—1970, yp. 78.(Pet. Br. 10, fns. 2 and 3) lack judicial

finding support. .

UMW, assigned four reasons for setting aside the Decem-

ber 9 election, namely (A. 125):

“1. Pre-election violations of law, including the

massive use of union personnel and the union

treasury, require a new election.

“2. The voting of pensioners through uncon-.

stitutional bogey locals was obviously unlawful

and requires a new election. -

_ “3. The over a hundred violations on election

_day, which Joseph A. (Chip) Yablonski recounted.

in his Affidavit, were probably matched some ten-

fold by those about which we have no information

and these, too, require a new election.

“4 The incidents of violence and the atmos-

phere of intimidation and fear made a fair elec-

- tion impossible, and require a new election.”

Following UMW’s .waiver, the Sectletary of Labor:

initiated a comprehensive investigation: 230 profes-

sionals, employed both in the field and in Washington,

D. C, visited 822 of UMW’ s 1,260 voting locals, conduct-

ing 4,400 interviews of local UMW personnel, volunteer

observers, union members, UMW personnel in 22: Dis-

tricts and Washington, bank officials, transportation offi-

cials, radio, T.V., newspaper and advertising persons, in-

volving more than 43,000 man hours of work (A. 152).

“ rs |

B. THE SECRETARY OF LABOR’S ACTION.

Upon review of the investigation, on March 5, 1970—

less than two months after the investigation was started

—respondent Secretary, pursuant to the Act’s Section

402(b) [29 USCA 482 (b)], instituted the instant action

in which ‘the Secretary’s first cause of action sought

to have the district court set aside the election, al-

)

;

leging seven violations under the Act’s Title IV which

included grqunds not. brought to his attention in the

Yablonski and Trbovich complaints. Respondent Secre-

tary decided not to include in his action two allegations

which Trbovich urged, namely: (1) ‘that Title IV was

violated because union members were permitted to vote

in certain pensioner locals, denominated “bogus” locals

and composed of less than 10 working members; and (2)

Boyle engineered a pension increase to retired members

from $115 to $150 per month “designed and intended to

influence and may have influenced the votes of” pen-

sioned union members “and, therefore, the outcome of :

the election and which jeopardized the continued sol-

vency of the Fund” (A. 32). \

The Secretary’s secon@ cause of action alleged UMW

was failing to keep proper records on matters required |

to be reported under Title II and the Secretary sought

"x_to compel respondent UMW to maintain certain financial

‘records (A. 15, 114Y. |

In connection with his instituted action of: March 5,

1970, the Secretary filed a preliminary injunction motion

to prohibit UMW or its agents from thereafter spending

funds without keeping records as required: by Title II.

(A. 17). In addition to proceedings relating to the pre-

liminary injunction motion, ‘proceedings in the March 5,

1970 action have included voluminous interrogatories

and requests for admissions, numerous depositions taken

by both parties, and a trial has been proceeding since

September 13, 1971.°

bi é,

*On October 29, 1971, upon UMW’s motion, the trial was suspended

until November 15, 1971, because of the death of UMW attorney Walter

E. Gillcrist who had participated prominently as one of UMW’s attor-

neys in that respondent’s defense, not only in the district court, but

in the Court of Appeals and in this Court as well.

SpPOR Canter catty

BR se caer enter coengeeramaeeite: ere com,

| B

C. PETITIONER’S MOTION TO INTERVENE.

On April 1, 1970, Miners for Democracy was allegedly

founded and petitioner allegedly became its National

Chairman (A. 29, 111). Approximately seven months

‘after respondent Secretary’s March 5 complaint was

filed, petitioner, on October 2, 1970, moved the district

court for leave to intervene on behalf of himself and as

Chairman of and on behalf of-Miners for Democracy (A.

28, et seq.). In a proposed complaint attached to the

intervention motion, petitioner raised two issues in addi-

tion to those raised in the Secretary’s action: First, that

a pension increase by the Trustees of the United Mine

Workers of America Welfare and Retirement Fund on

‘June 23, 1969 constituted improper interference in the

election campaign (A. 32); and secondly, that approxi-

mately 500 local unions were illegally constituted and

should be disbanded before a court-ordered election is

held (A. 31-33). : |

Additionally, intervenor’s proffered complaint, seeking

to raise a different cause of action under the Act’s Section

201 (29 USCA 431), prayed for the appointment of

monitors to oversee and approve maintenance of UMW’s

records and preservation of its assets until such time as

the court believes such assets are not in danger of being °

dissipated, and to establish rules for conducting a new

election (A: 33-34).’

7 The proffered complaint prays for relief, in addition to that in

the Secretary’s action, including directing UMW to disband local unions

not complying with its Constitution and to require the transfer of all

members of such locals to those complying with its Constitution, ruling

that UMW’s President Boyle breached his fiduciary duty to UMW

members by raising bituminous pensions to benefit himself and other

incumbent UMW officers, and granting intervenor reasonable attorney

fees and costs (A. 33-34).

seer"

— ©

D. THE SECRETARY’S REASONS FOR REFUSING TO CON-

DUCT A PRE-ELECTION INVESTIGATION AND FOR NOT

a THE TWO GROUNDS URGED BY INTER-|

ENOR. ° . .

i |

The Secretary’s explanation for the Department’s fail-

ure to conduct a pre-election investigation is that it “has —

never conducted an investigation of an election during

the campaign” (A. 62) and that a pre-election investi-

gation “is not contemplated by the statute” (A. 64.); that

while the Act’s Section 601 might justify such an in-

vestigation, Section 601’s language “may not be taken

alone” but must be read in context and in light of the -

drafter’s purpose (A. 67); and that “From 1959 until to-

day, the sole use of Section 601 investigatory authority

in election cases has been to collect or preserve evidence

regarding élections which have already been held and,

therefore, in circumstances in which the outcome of the —

election could not be affected” (A. 66). Noting, inter alia,

that “The Government must . . avoid taking sides in a.

union election, or giving the appearance of doing so”,

the Secretary avowed that if the Deparfthent investi-

gated “during the pre-election period, it might, by the

mere fact of investigation alone, be interpreted as taking

the side of the party alleging violations”: (A. 69). The

Secretary realistically observed that Congress was con-

scious that some violations are committed by an un-

successful candidate and authorized the Department “to

bring action only where it is determined that the vio-

lations ‘may have affected the outcome of the election’ ”

(A. 68).° The Secretary. cogently inquired, “Can one

attribute to the Congress an intent that the Labor De-

partment should investigate before an election and then

‘wait until afterward to determine if the violation could

have ‘affected the outcome’ of the election?” (A. 68). In-

further explanation, the Secretary noted “There are an

estimated 20,000 union elections each year” and the

needed expansion of.the investigatory staff if it were

incumbent upon his Department to conduct pre-election

alleged violations (A. 68). |

‘Moreover, the Secretary explained that action by a

union officer during a campaign, to improve the economic ‘

condition of his members, does not, by itself, violate the

LMRDA (A. 63).

The ‘Secretary’s responses to his failure to include in

his action the pension increase of which petitioner com-

plains (Pet. Br. 13-16), were (1) under the Act’s Section

401(e) “improper interference”, as the legislative history

indicates, “is limited to interference that amounts to co-

ercion or intimidation” and (2) .the “pension levels were

not increased by Boyle, but by a majority vote of the

trustees” (A. 71). See Lewis, et al. v. Pennington, 6 Cir.,

325 F.2d 804 (1963).°

Rejecting the appositeness of NLRB vy. Exchange Parts,

375 U.S. 405 (1964) [cited by petitioner, Pet. Br. 16],

wherein this Court held an employer interfered with

employees’ rights by granting a raise to employees dur-

ing an organizing drive, the Secretary declared the raise

demonstrated the employer’s power is nonexistent to an

international union contest “because neither faction has

that kind of unilateral power”. and “In a union election

if one side is defeated, its power ends and, therefore,

even a demonstration of power before the election is not

°The Sixth Circuit noted that the district court “expressed the .

opinion that the action of a majority of the Trustees was required to

bind the Fund” under Vun Horn v. Lewis, D.D.C., 1948, 79 F.Supp. 541,

holding that action of one Fund Trustee “alone, without the authori-

zation or consent of the majority of the Trustees, was not sufficient”

to bind the Trustees (325 F.2d 818). °

necessarily an intimation of what will happen after the

election” (A. 72). Additionally, the Secretary posed the

query that “If the Labor Department were to decide that

a pension raise . . constitutes ‘improper interference’,

would not an incumbent candidate’s negotiation of a

raise in the wage scale during the campaign period also

be a violation of the Act?” (A. 73).

Significantly, although. the pension increase was, as

| petitioner indicates (Pet. Br. 14), the subject of litigation.

in Blankenship, et al. v. W. A. Boyle, et al., Civil No.

2186-69, D.D.C., no one and no court has suggested or -

intimated there should be a roll back of the pension

increase. Even Senator Harrison Williams’ auditors

failed to appreciate that this industrywide irrevocable

trust was supposed to ‘Operate on a pay-as-you-go basis.

This trust was created for the benefit. of coal miners and

was never intended to accumulate money for its own

sake. Financed by royalties on coal produced for use or

for sale as a result of a collective bargaining agreement,

there.is not a shred of eviderice to support the contention

that the trust. will become bankrupt by 1975. Further,

petitioner’s reference to an actuarial study of the Fund

by the U. S. General Accounting Office (Pet. Br. 15)

invites the comment made in Van Horn v. Lewis, supra,

p. 942, that “the Court knows from a rather long busi-’

ness experience that actuaries can reach very many

different conclusions if they want to reach them”.

The second issue involves petitioner’s coined phrase

“bogus locals” (Pet. Br. 16-17). The Secretary appropri- —

ately noted that “This allegation draws its chief appeal

from the use of the words ‘bogus’ or ‘bogey’” (A. 77).

The Secretary, upon investigation, found that provisions

10:

of UMW’s Constitution requiring at least 10 working

members before a local could receive a charter did not

require that, if a chartered local ends up with fewer than

10- working members, its charter must be revoked (A.

78). Further, the Secretary declared, the Act contains

no authorization “for the Government to compel the

transfer of members of one local union to another local” .

and that “authority to reorganize the internal organiza-

tional structure of unions would be such an extraordinary

power” as clearly to require new legislation (A. 78). The

Secretary -characterized UMW’s interpretation as “not

arbitrary” (A. 78).”

_ The district sures Memoranduni Opinion, filed No-

vember 17, 1970, concluded that (A. 111):.

‘As for the first cause of action, it is undisputed

that the exclusive remedy for challenging an elec-

tion alréady conducted is a suit by the Secretary

of Labor pursuant to a complaint by a union mem-

ber and a determination by the Secretary of ‘prob-

able cause’ to believe that a violation of the law

governing elections has occurred”;

that the Act’s legislative history “makes us doubt that

intervention by a union member in a suit by the Secre-

tary to set aside an election would be consistent with the.

congressional purpose” (A. 111-12); that the Act’s legis-

lative history showed “the fact that Congress considered

two alternatives—suit by union members and suit by the

Secretary—and then chose the latter alternative and

°This question previously was raised by petitioner’s counsel in

Yablonski. et al. v. United Mine Workers of America, Civil No. 3436-69,

D.D.C. sub nom Karl Kafton, et al. (including Mike Trbovich) v.

United Mine Workers of America. Further, as the Secretary found,

“If the locals are not legal, the members would just have been trans-

ferred to other locals and voted at a different polling place. Remove

the label ‘bogus’ local and the issue falls into perspective’ (A. 77).

'°The italicized word “exclusive” is that of the district court.

labelled it ‘exclusive’ deprives this Court of jurisdiction

to permit the former alternative via the route of inter-

vention” (A. 112).

As to the second cause, seeking an injunction to compel

UMW to maintain financial records, the district court

concluded, “The Secretary is the one person authorized

by the statute to seek such an injunction” (A. 114)."'

E. THE LOWER COURTS’ JUDGMENTS.

The district court recognized petitioner’s interest in

insuring that union funds are spent for the sole benefit

of its organization and members; but noted vindication

thereof is sought in another suit in the same court (Civil

Action 3436-69) for an accounting, restitution and dam-

ages pursuant to 29 USCA 185 and 561(a) and (b),

wherein the issue is whether UMW misappropriated

funds, and that such pending law suit sufficed to assert

their rights (A, 114-15). In the instant case, declared the

district court, “the dispositive issue is quite different,-

namely, whether the union has failed to maintain rec-

ords” required to be reported (A. 114).

The district court rejected petitioner’s argument that

he had shown “the equivalent of being legally bound

the decree” herein (A. 115).

The Court of Appeals was “in substantial agreement

with” the district court’s Memorandum Opinion (A. 111)

- and affirmed. the district court’s judgment (A. 122).

"Because petitioner’s brief does not undertake to justify separately

his proposed intervention as to the second’ cause of action, and is

founded on the Act’s Section 210 (29 USCA 440). which provides for

- an action by the Secretary as distinguished from an individual union

member, UMW submits the same principles which’ reject petitioner’s

claim of intervention as to the first cause of action are equally apposite

to the second cause of action.

° 12

SUMMARY OF ARGUMENT

) 1

The Court of Appeals, affirming the: district court’s

Memorandum Opinion and Judgment, correctly held that

enforcement of post-election remedy to challenge a union

election is statutorily the exclusive function of the Secre-

tary of Labor. The Act’s Section 403, reading “The

remedy provided by this subchapter for challenging an

election already conducted shall be exclusive’, expressly

so provides.

Congress’ statutory scheme made plain its intent to

entrust enforcement of Title IV to the Secretary’s ex-

pertise and discretion. Pursuant thereto, the Secretary

of Labor instituted the instant action, but rejected there-

from two matters of which petitioner complains as a

predicate for his claimed right to intervene in the Secre-

tary’s action, despite the Secretary’s explicating his rea-

sons for rejecting them. It is obvious that petitioner seeks

herein, through intervention, to substitute his judgment

for that, of the Secretary. Sanction of the intervention

motion would clearly thwart Congress’ plain intent and

frustrate the statutory scheme. |

Contrary to petitioner’s contention that the legislative

history does not support the Court of Appeals’ reading of

the Act, the district court appropriately noted that “the

fact that Congress considered two alternatives—suit by

. union members and suit by the Secretary—and then

chose the-latter alternative and labeled it ‘exclusive’ de-

prives this Court of jurisdiction to permit the former via

the route of intervention.” The Act’s legislative history_

demonstrates the accuracy of the district court’s finding.

Petitioner would avoid the Act’s unambiguous lan-

guage by ah unsupported distinction between the Secre-

i /

. tary’s exclusive right to initiate Title IV litigation and a

_ claimant’s intervention right after such litigation has

"+ been instituted. Petitioner, however, ignores that it is

the remedy which Congress.mandated: shall be exclu-

sive. That Congress intended no such distinction is

manifested by Congress’ care in delineating those in-

stances in which a union member was to be vested with

a litigant’s status and those in which he was not so vested,

thus evidencing that when @pongresé intended that union

~ members could sentilibly iiects in litigation ynder

the Act, Congress knew how to accord them that oppor-

tunity. Inclusio unius est exclusio alterius. :

Further, where, as here, Congress carefully, considered

but rejected legislation to permit litigation by «union

members in relation to election matters, "this Court res

jected an interpretation “to. achieve that which Congress

refused to enact into law”. Colgate-Palmolive-Peet Co.

v. NLRB, 338 U.S. 355; 364 (1945). Implementation

thereof is required in the instant action. _

Petitioner concedes that Stein v. Wirtz, 10 Cir., 366

F.2d 188 (1966), cert. den. 386 U.S. 996 (1967), held that

intervention was precluded by the Act’s Section 403.

Stein’s denial accords with numerous district court de-

cisions denying union members’ right to intervene in

Title IV actions. Moreover, Stein noted that the Act con-

ferred upon the Secretary the exclusive right to bring

civil actions for union election violations; and, declaring

’ there was no way for a union member to prosecute this.

type of action by original suit, Stein continued that “he

cannot be permitted to do so by intervention, for Rule

24(a)(2) cannot be construed to extend federal jurisdic-

tion” (356 F.2d 189).

Affirmance of the Court of Appeals’ jueements is there-

fore required.

RR PR OR A

Rw.

ie TS SR TY

Petitioner is not entitled to intervene as of right under

Rule‘24(a), Federal Rules of Civil Procedure. UMW has

_ not conceded petitioner’s sati8faction of the Rule’s re-

quirements, as the Question Presented assumes. UMW’s.

_ contention is now and has been to the contrary.

Under Argument. I, UMW has firmly established that

a district court’s jurisdiction to entertain an action of

enforcement of post-election remedy challenging a union

election is limited to one instituted by the Secretary of

Labor. Rule.82 expressly states’ that “These rules shall

not be construed to extend . . the jurisdiction of the

United States. district courts”. Petitioner assiduously

"avoids directing this Court’s attention to that Rule, al-

ee re

though, relevantly, Stein expressly so held. Federal

court refusal of union-member intervention (ante, p. 13)

accords with the Secretary’s interpretation of the Act

and his opposition herein, which “‘is entitled to great def-.

erence”. Griggs v. Duke Power Co., 28 L. ed 2d 158, 165.

In any event, petitioner does not meet Rule 24(a)’s

requirements for intervention as of right. Petitioner’s

emphasis that the Act is designed to be protective of

union members’ rights ignores totally the “public inter-

est”. Wirtz v. Local 153, Glass Blowers Ass’n., 389 U.S.

463, 475 (1968), states that the Act was not designed

“merely to protect the right of a union member to run

for a particular office in a p&rticular election . . Congress

emphatically asserted a vital public interest in assuring

free and democratic union elections that transcends the

narrower interest of the complaining union member”.

Petitioner’s claim of a special interest as leader ‘of a

_ union faction is not protected by Title IV. Petitioner has’

not only failed to show a legally recognized interest in

the litigation’s subject distinct from the interest repre-

sented by the Secretary, he has failed to establish that

the Secretary’s representation of his interest as a union

member is inadequate. The “burden to show that repre-

sentation may be inadequate ought to be upon the appli-

cant” (Moore’s Federal Practice, 2d Ed., Vol. 3B, {124.09-

1[4], p. 316). |

Petitioner’s argument ignores that the statute entrusts

the Secretary with a discretion and right to make find-

ings of probable cause, and that the Secretary rejected

the two grounds upon which petitioner premised his

claimed right to intervene. Petitioner seeks to do in-—

directly what concededly he could not do. directly,

namely, institute a Section 402(b) action, contrary to

Sears, Roebuck and Co. v. Carpet, etc. Layers, 10 Cir., 410 ©

F.2d 1148, 1151 (1969), that “What cannot be obtained

directly . . as a party, cannot be obtained indirectly —

_ through intervention.” Factors employed by petitioner

as a predicate for intervention, in light of the statutory .

scheme and its legislative | history, are,:as this Court

stated in United Steelworkers'v. R..H. Bouligny, Inc..

382 U.S, 145, 153 (1965), “decisions which we believed

suited to the legislative and not the judicial branch”.

_ This Court’s agreement with petitioner would serve

as-a pattern for every candidate in a labor union elec-

_ tion to become a potential intervenor, with all the at-

tending procedural. pandemonium created by a proposed

intervention at variant stages of the Secretary’s action.

Petitioner’s citations are not supportive of his alleged

right to intervene. They represent no more than “the

claimed existence” of an intervention right “found in

constant assertion” by petitioner’s counsel, rather than

in law. G. & P. Amusement Co. v. Regent Theater Co.,

DC, N.D., Ohio, 1952, 107 F. Supp. 453, 461:

- The Court of Appeals properly rejected petitioner’s

intervention effort.

ARGUMENT

I. THE COURT OF APPEALS, AFFIRMING THE DISTRICT

COURT’S MEMORANDUM OPINION AND JUDGMENT,

CORRECTLY HELD THAT ENFORCEMENT OF POST-

ELECTION REMEDY TO CHALLENGE A UNION ELECTION

IS STATUTORILY THE EXCLUSIVE FUNCTION OF THE

SECRETARY OF LABOR.

As already noted, the Court of Appeals oer with

‘ the district court’s Memorandum Opinion and J udgment.

The following discussion demonstrates the validity of

the Court of Appeals’ agreement and judgment:

-“A. The Statutory Language.

The ae (Section 403; 29 USCA 483) expressly pro-

vides that the exclusive remedy for enforcement of Title

IV is an action by the Secretary of Labor: “.. The remedy

provided by this subchapter for challenging an election

already conducted shall be exclusive”.

Unless clear language has lost its meaning,. nothing

could be clearer than the statutory language. Under the

Act’s Section 402(a), the Secretary conducts an. investi-

gation upon receipt of a member’s complaint and files a

civil action only if he finds probable cause to believe a

violation of the Title has occurred in the union election’s

conduct. The number of investigators, election sites vis-

ited, interviews had and man hours employed by the

Secretary i in investigating the December 9. election leaves

no doubt of the Secretary’s compliance of duty imposed

upon him by the statute (ante, p. 4). Further, the

Secretary’s full explication for rejecting the matters from

his civil action mirrors the reasonableness of his exer-

cised discretion. It is obvious that petitioner seeks herein,

through intervention, to substitute his pdece Ent for that

of the Secretary.

However, as this Court recognized, Congress’ statutory

scheme made plain its intent to entrust enforcement of

Title IV to the Secretary’s expertise and discretion.

Calhoon v. Harvey, 379 U.S. 134, 140 (1964); Wirtz v.

Local 153, Glass Blowers Assn., 389 U.S.. 463, 471-73

(1968); Wirtz v. Local 125, Laborers Int. Union, etc., 389

U.S. 477 (1968). Significantly, absent an action insti-

tuted by the Secretary, petitioner’s proposed interven-

tion would be judicially abortive, and petitioner uses this

happenstance as a medium by which to interject into the:

Secretary’s action alleged violations, with respect to

which the Secretary has made no’ findings of probable

cause, in direct conflict with this Court’s avowal in-

Calhoon and Wirtz v. Local 153, that “Congress deliber-

ately gave exclusive enforcement authority to the Secre-

tary, having ‘decided to utilize the special knowledge and

discretion of the Secretary of Labor in order best to serve

the public interest’ ” (389 U.S. 473). Sanction of the

intervention motion would clearly thwart Congress’ plain

intent and frustrate the statutory scheme.

B. The Act’s Legislative History Challenges Petitioner’s

_ Right to Intervene.

The district court, whose judgment the Court of

Appeals affirmed, expressed the view that the Act’s leg-

islative history “makes us doubt that intervention by a

union member’ in the Secretary’s suit would be con-

sistent with the Act’s congressional purpose (A. 111-12).

. Contrary to petitioner’s contention (Pet. Br. 27) that the

legislative history does not support the Court of Appeals’

réading of the Act, the district court appropriately noted

that “the fact that Congress considered two alternatives

—suit by union members and suit by the Secretary—and

then chose the latter alternative and labelled it ‘exclu-

. Sive’ deprives this Court of jurisdiction to ‘permit the

NS as

former via the route of intervention” (A. 112). The Act’s

legislative history demonstrates the accuracy of the dis-

trict court’s finding.

In S. 505, as referred to the Committee on Labor and’

Public Welfare, 86th Cong., lst Sess. (1959), known as |

the Kennedy (or Kennedy-Ervin) Bill, Sections 302(a)-

(d) are identical. in all material respects with the Act’s

Sections 402 and 403 and provided for institution of suit

by the Secretary, while Section 303 provided that the

99 12

“remedies provided by this title shall be exclusive”.

In contrast to S. 505, Section 402(a) of H.R. 8342, as

reported in the same Congress, expressly authorized a

union member who had exhausted his internal union

remedies to “bring a civil action against such labor or-

ganization”. Similarly, in contrast to S. 505, the House

Bill gave no power to the Secretary to institute judicial

action to challenge elections."

Likewise, in contrast to S. 505, on January 28, 1959—

eight days following S. 505—there was also introduced

in the Senate S. 748, which, as¥referred, expressly au-—

thorized “members of a labor organization to obtain

appropriate relief” in an action or proceeding."

At the same Session of Congress, there was reported

(under authority of the order of the Senate of April 13,

1959) by Mr. Kennedy, with amendments, S. 1555 which,

in its Section 302, authorized a civil action to be brought

by the Secretary."* A report on S. 1599 noted that:

'2See Legislative History of the Labor-Management Reporting and

Disclosure Act of 1959 (published by the National Labor Relations

Board—U. S. Government Printing Office, 1959), Vol. I, pp. 29, 62-64.

13Ibid. Vol. I, pp. 687, 727. .

'4Tbid, Vol. I, pp. 84, 112.

'SIbid, Vol. I, pp. 338, 376.

“However, since the bill’ provides an effective and

expeditious remedy for overthrowing an improp-

erly held election and holding a new election, the

Federal remedy is made the sole remedy and pri-

vate. litigation would be precluded”,"*

The Senate enacted S. 1555 on April 27, 1959” and the

House subsequently passed its House Bil] 8342, as

amended.'* In a Conference Report (H.R. No. 147 on

S. 1555), managers on the part of the House reported,

with reference to the issue herein, that:

“The House amendment differs from the Senate

bill in that the members of the union, instead of

the Secretary, can bring the civil action, and,

therefore, there would be no investigation by the

Secretary” ;

and, further,

“The conference substitute is the same as the |

Senate bill on this point”.’’

The Bill, as reported out by the Conference Committee,

became the Act.”°

Nothing in petitioner’s treatment of the Act's legis-

lative history (Pet. Br. 25-34) contains a single utterance

in challenge of the district court’s legislative finding and

the Court of Appeals’. affirmance thereof. Petitioner

would avoid the Act’s unambiguous language that “The

remedy provided . . for challenging an election already

- conducted shall be exclusive” by an unsupported distinc-

tion between the Secretary’s exclusive right to initiate

Title IV litigation and a claimant’s intervention right

‘Ibid, Vol. I, pp. 397, 417.

'7Ibid, Vol. II, pp. 1431, et seq.

'8Ibid, Vol. II, pp. 1693-1702.

'°Ibid, Vol. I, pp. 934, 939.

°Ibid, Vol. II, pp. 1452-53, 1738-39.

after such litigation has been instituted. However, peti-

tioner ignores that it is the remedy which Congress has

mandated shall be exclusive. As stated in the Second

Circuit’s Wirtz v. Operating Engineers, 366 F.2d 438,

442 (1966), “Congress intentionally created a narrow

remedy under Title IV . . so that interfererice with union

elections and management would be kept at a Minimum”.

Further, that Congress intended no such distinction

as petitioner presses upon this Court is manifested by

Congress’ care in delineating those instances in which a

union member was to be vested with a litigant’s status

and those in which he was not so vested: Title I, Section

102 (29 USCA 412) expressly provides a union member’s

right to bring suit to redress violations of that Title; Title

by. Section 401(c) [29 USCA 481(c)] accords to “any

bona fide candidate” for a union office the right of suit;

and, similarly, trusteeships can be voided by action of

either the Secretary or individual union members under ~

the Act’s Section 304 (29 USCA 464).

Thus, it is evident that when Congress intended that

union members could permissibly participate in litigation

under the Act, Congress knew how to accord them that

opportunity. Apropos is the maxim inclusio wnius est

exclusio alterius. The statutory provisions granting mem-

bers the right to a litigation status stand in sharp con-

trast to the herein scrutinized language that “The remedy

provided . . for challenging an election already con-

ducted shall be exclusive’”’.

Where, as here, Congress carefully considered but re-

jected legislation which would have permitted union

members to litigate in relation to election matters, this

Court rejected an interpretation “to achieve that which

Congress refused to enact into law’. -Colgate-Palmolive-

Peet Co. v. NLRB, 338 U.S. 355, 364 (1949). UMW sub-

mits that implementation, thereof is required in the in-

stant situation.

C. Motions to Intervene Have Been Rejected

by Federal Courts.

Petitioner concedes (Pet. Br. 22, fn. 13) that Stein v.

Wirtz, 10 Cir., 366 F.2d 188 (1966), cert. den 386 U.S. ©

996 (1967) held that intervention-was precluded by the

" Act’s Section 403. Even though Stein’s intervention mo-

tion was denied prior to the effective date of.the 1966

amendments to Rule 24, Federal Rules, the Tenth Cir-

cuit’s decision came subsequent thereto and, relevantly,

its result accords with the numerous district court deci-

“sions (post, p. 22) denying union members’ right to

intervention in Title IV actions. Moreover, in affirming

the district: court’s denial of Stein’s motion, the Tenth

Circuit stated (366 F.2d 189):

“The Act confers upon the Secretary of Labor

the exclusive right to bring civil actions against

labor organizations. for violations of members’

rights in union elections and election procedures.

29 U.S.C. §§482(b), 483; Calhoon v. Harvey, 379

UA. 134, 85S. Ct. 292, 13 L. Ed. 2d 190. There

being no way for appellant to prosecute this type

of action by original suit, he cannot be permitted

to do so by intervention, for Rule 24(a)(2) can-

not be construed to extend federal jurisdiction.

Fed. R. Civ. P. 82; Bantel v. McGrath, 10 Cir., 215

R.2d 297,”

As above indicated, district courts have denied motions

to intervéne in actions brought by the Secretary of Labor

to invalidate union elections. Shultz v. Steelworkers, DC, ~

?'The italicized word “exclusive” is that of the Tenth Circuit.

RIS ta ar ie ae ate ee rte en Cenanticee snes ~ Sea ae

220 ‘

W.D. Pa., 1970, 313 F.Supp. 549, 74 LRRM 2222 wherein

the applicant for intervention was the complainant to the

Secretary of Labor; Wirtz v. Local Union No. 1377, Int.

Bro. of Electrical Workers, DC, N.D. Ohio, 1968, 288

F.Supp. 914; Wirtz v. Operating Engineers, DC, C.D.

Calif., 1967, 66 LRRM 2080; Wirtz v. Local 825, DC, N.J.,

1965, 60 LRRM 2092; Wirtz v. Local 560, Teamsters, DC, -

N.J., 1965, 61 LRRM 2470. im

UMW submits that affirmance of the Court of Appeals’

judgment is required.

Il. PETITIONER IS NOT ENTITLED TO INTERVENE AS OF

RIGHT UNDER RULE 24(a), FEDERAL RULES OF CIVIL

PROCEDURE. |

“A. Petitioner’s Right to Intervene Has

Not Been Conceded by UMW.

While the Question Presented (ante, p. 2) assumes

that it is conceded that petitioner ‘satisfies all require-

ments for intervention of right under Rule 24, Federal

Rules of Civil Procedure, actually UMW has made no

such concession, petitioner’s brief makes no claim it has

and, indeed, UMW’s contention is now and has been to

the contrary throughout the instant litigation.”

22Courts have rejected suits instituted by union members question-

ing the validity of already-conducted union elections, as well as suits

to compel the Secretary to bring a Title IV post- -election action. See

Wirtz v. Local Union 410, et al., Int. Union of Operating Engineers,

2 Cir., 366 F.2d 438 (1966): Mamula v. United Steelworkers of America,

3 Cir., 304 F.2d 108 (1962); McGuire v. Locomotiue Engineers, 6 Cir.,

426 F.2d 504 (1970); Katrinic v. Wirtz, DC, D.C.,, 1966, 62 LRRM 2557;

Ravaschieri v. Schultz, DC, S.D. N.Y., 1970, 75 L.RRM 2272; Morrissey

v. Shultz, DC, S.D. N.Y., 1970, 311 F.Supp. 744, 74 LRRM 2679; DeVito

‘y. Shultz, DC, D.C., 1969, 300 F.Supp. 381. Additionally, Wirtz v.

National Maritime Union of America, 2 Cir., 409 F.2d 1340 (1969)

affirmed the denial of a motion by union members to overrule the

Secretary with respect to rules he formulated to govern a new election.

23Petitioner’s claim of concession is limited to the Secretary. Notably,

even petitioner admits that the Secretary opposes petitioner’ Ss position

of concession (Pet. Br. 21, fn. 11).

kL. Rule 82 Precludes Application of

Rule 24, Federal Rules. .

UMW’’s discussion under Argument I has firmly estab-.

lished that a district court’s jurisdiction to entertain an °

action of enforcement of post-election remedy challeng-

ing a union election is limited to one- instituted by the

Secretary ‘of Labor. Hence, a vital observation in rela-

tion to petitioner’s claim of right to intervene (Pet. Br.

34-44) is the fact that Rule 82, Federal Rules, expressly

‘states that “These rules shall not be construed to extend

. . the jurisdiction of the United States district courts : .”

Petitioner assiduously avoids directing this Court’s atten-

tion to Rule 82, although, relevantly, the Stein case ex-

pressly so held. |

‘As Stein holds, “There being no way for appellant to

prosecute this type of action by original suit, he cannot

be permitted to do so by intervention, for Rule 24(a)(2)

cannot be construed to extend federal jurisdiction” (366

F.2d 189).

C. In Any Event, Petitioner Does Not Meet Rule 24(a)’s

Requirements for Intervention as of Right.

Rule 24(a), Federal Rules of Civil Procedure, provides:

“Upon timely application anyone shall be per-

to intervene in an action: (1) when a statute of

the: United States confers an unconditional right

to intervene; or (2) when the applicant claims an

interest relating to the property or transaction

which is the subject of th@8€@tion and he is so

situated that the disposition at action may as

a practical matter impair or imp€de his ability to

protect that interest, unless the applicant’s inter-

est is adequately represented by-existing parties.”

Cx OY Cimento a ianarnne Hes Sg 5 nae Manat Lh een toa Ge ge SOURS 7

hh ey

wat 2

I TTA a Sat aa OES R MMT ED: SORE PeoREE IY et 1 Sep?

Moore’s Federal Practice, 2d Ed., Vol. 3B, 24.09-1[1],

pp. 284-85 recites: |

“In summary, an application for non-statutory

intervention as of right under the 1966 vergion of

Rule 24(a) must meet the following requirements:

The application must (1)-be timely, (2) show an -

interest in the subject matter of the action, (3)

show that the protection of the interest may be

impaired by the disposition of the action, and (4)

show that the interest is not adequately repre-

sented by an existing party.”

Petitioner’s emphasis that the Act is designed to be

protective of rights of union members (Pet. Br. 40)

ignores totally the “public interest”, for, as this Court

stated in Wirtz v. Local 153, Glass Blowers Assn., 389)

U.S. 463, 475 (1968), the Act was not designed: “‘merely

to protect the right of a union member to run for a par-

ticular office in a particular election . . Congress emphati-

cally asserted a vital public interest in assuring free and

democratic union elections that transcends the narrower

interest of the complaining union member”. Thus, peti-

tioner’s claim of a special interest as leader of a faction

within the union is not a right protected by Title IV.

Hence, petitioner has not only failed to show a legally

recognized interest in the litigation’s subject distinct

from the interest represented by the Secretary, he has_

failed to establish that the Secretary’s representation of

his interest as a union member is inadequate. An appli-

cant whose “interest is adequately represented by exist-

ing parties” has no right to intervene under Rule 24(a)(2).

Moore’s Federal Practice, 2d Ed., Vol. 3B, 124.09-1[4],

p. 316, recites that “the burden to show that representa-

tion may be inadequate ought to be upon the applicant”.

Petitioner’s argument also ignores that the statute

vests in the Secretary a discretion and the right to make

- findings of probable cause, and that in the exercise of -

such statutory authority the Secretary rejected the two

right to intervene. Not only does petitioner seek herein

' to substitute his judgment for that of the Secretary, but

he seeks to do indirectly what concededly he could not

do directly, namely, institute a Section 402(b) action,

_ which prompts UMW to urge this Court’s implementa-

tion of the Tenth Circuit’s holding in Sears, Roebuck Co.

v. Carpet, etc. Layers, 410 F.2d 1148, 1151 ( 1969) that

“What cannot be obtained directly ...as a party, cannot

be obtained indirectly through intervention”.

Petitioner’s plaint (Pet. Br. 42-44) that the Secretary

and those designated by him to enforce Title IV have

limited knowledge of the internal structure of unions,

including UMW, and limited resources for investigating

alleged violations is abortive in light of the thorough in-

vestigation made by the Secretary in the instant case.

In any event, these, and the other factors employed by

petitioner as a predicate for intervention (Pet. Br. 42-44),

are, as this Court stated in United Steelworkers v. R. H.

Bouligny, Inc., 382 U.S. 145, 153 (1965), “decisions which

we believe suited to the legislative and ‘not the judicial

branch”. The Act’s legislative history underscores the

necessity for Bouligny’s implementation in the instant

case.

This Court’s agreement with petitioner would serve

as a pattern for every candidate in a labor union election

to become a potential intervenor with all the attending

procedural pandemonium created by proposed interven-

tion at variant stages of the Secretary’s action.

Sei a .

D. Petitioner’s Citations Are Not Supportive

of His Alleged Right to Intervene.

None of the citations in petitioner’s brief ( pp. 34-44)

- Support his contention of his claimed right to intervene.

in the’ Secretary’s action.

Int. Union, UAW v. Scofield, 382 U.S. 205 (1965) [Pet.

Br. 36-40] is inapposite. While in Scofield, this Court

held the successful party in an NLRB proceeding could

intervene to protect his victory upon appeal by the un-

* successful party, this Court’s opinion suffices to demon-

state Scofield’s inapplicability in its recognition that (p.

219) & hy

“’. When the General Counsel issues a complaint °

and the proceeding reaches the adjudicative stage,

the course the hearing will take is in the agency’s

control, but the charging party is accorded formal

recognition: he participates in the hearings as a

‘party’; he may call witnesses and cross-examine

others, may file exceptions to any order of the

trial examiner, and may file a petition for re-

consideration to a Board order . . Of course, if the

Board dismisses the complaint, he can obtain re- .

view as a person aggrieved. .”

Thus, Scofield allowed.a participant in the fact-finding

procedures to protect his victory on appeal, which this

Court: held. \justified by congressional intent in passing

the National Labor Relations Act and that the interven-

tion did not “impair effective discharge” of the Board’s

duties (382 U.S. 215) and would save judicial time by °

preventing a charging party’s second appeal should |

NLRB’s decision be reverséd (p. 212).

‘The Act under scrutiny herein not only does not pro-

vide for a complainant to the Secretary to ) be.a statutorily |

recognized party, but, to the contrary, “The remedy pro- —

vided . . shall be exclusive” and, as shown herein (ante,

27 > ee

p. 17), the legislative history affirmatively demonstrated

" congressional negation of that right to a complaining

union member and Rule 82 forbids expansion of juris-

diction to include Rule 24(a) intervention (ante, p. 23).

Indeed, Sears, Roebuck and Co. v. Carpet, etc. Layers,

10 Cir., 410° F.2d 1148 (1969) held Scctield to be “dis-

tinguishable and of limited assistance” in its holding

that a charging party who appeared im an action by

NLRB’s Regional Director for a temporary injunction

under Section 10(1), Labor Management Relations Act

of 1947, lacked standing to appeal the district court’s .

denial of an injunction, because the charging party be-

fore NLRB is not a party in a Section 14(1) action. Sig-

nificantly, to the charging party’s alterrative contention

that it had a right to intervene to prosecute the appeal,

the Tenth Circuit, rejecting such contention, cogently

steted: “What cannot be obtained directly by asserting

a right to appeal as a party, cannot be obtained indirectly

through intervention”. (410 F.2d 1151). Accord:

Reynolds v. Marlene Industries Corp...DC, S.D. N.Y.,

1966, 250 F.Supp. 722. rt

Can

Petitioner’s arguments (Pet. 40- 41) thata complaining

party before the Secretary “has an even greater role than:

the charging party before” NLRB “and hence, even

‘stronger standing to intervene in subsequent judicial

proceedings” is not supported by Hodgson v. Steelwork-

ers Local 6799,-403 U.S. 333. (1971), which pertained

only to the Secretary’s right to. expand the complaint

. made to him by a union ener

' ?4Subsequently this Court vacated the Tenth Circuit’s’ judgment

and remanded the case to the district court with directions to dismiss

the comvlaint as moot, since the question whet*cr’ the employer

(Sears) could appeal from, the district court's denial of ‘a Section

10(1) injunction had become moot. Secrs, Roebuck and Co. Vv. Carpet,

etc. Layers, 397 U.S. 655 (1970).

28.

Nor is petitioner aided by Shultz v. United Steelwork-

ers of America, DC, W.D. Pa., 1970, 312 F.Supp. 538,

039, which allowed intervention to protect “property

interests of the applicant as an individual”.

Further, like Scofield (ante, pp. 26-27), neither Cascade

Natural Gas Corp. v. El Paso Natural Gas Corp., 386 U.S.

129 (1967), nor Citizens to Preserve Overton Park v.

Volpe, 401 US. 402 (1971) [cited by petitioner, Br. 22,

35, 38] was concerned with a situation comparable to

the instant. one wherein Congress mandated that the

remedy instituted by the Secretary is exclusive, wherein

the Act’s legislative history shows unequivocally that

Congress did not intend that union members be vested

with a litigant’s status, and wherein use of Rule 24(a) is

precluded by Rule 82, both Federal Rules. ;

Petitioner’s citations represents no more than “the

claimed existence” of an intervention right “found in

constant assertion” by petitioner’s counsel, rather than

in law. G. & P. Amusement Co. v. Regent Theater Co.,

DC, N.D. Ohio, 1952,.407 F.Supp. 453, 461.

Federal court refusal of union-member intervention

(ante, pp. 21-22) accords with the Secretary’s interpre-

tation ofthe Act and his opposition herein, which “‘is en-

titled to great deference”. Griggs v. Duke Power Co., 28

L. ed 2d 158, 165 (1971).

The foregoing discussion abundantly demonstrates that

petitioner is not entitled to intervene as of right under

Rule 24(a), Federal Rules, and. the Court of Appeals

appropriately placed its approval upon the district court’s

rejection of petitioner’s effort to do so.

CONCLUSION

For the reasons stated herein, UMW submits that this

Court should affirm the judgment of the Court of Appeals

in the instant case. _

) Respectfully submitted,

Epwakp L. Carry

HARRISON COMBS

; WILLarD P. Owens

7 CuarLes L. WIDMAN

900 Fifteenth Street, N.W.

Washington, D. C. 20005

M. E. Borarsky

012 Kanawha Valley Building

Charleston, W. Va. 25301

Counsel for Respondent,

United Mine Workers of America

November 15, 1971

APPENDIX

Title IV of the Labor-Man4gement Reporting and Dis-

closure Act of 1959 provides as follows:

§ 401 (29 USCA 481): Terms of Office and Election Pro-

cedures—Officers of National or International Labor

- ‘ Organizations, Manner of Election

(a) Every national or international labor organization,

except a federation of national or international labor or-

ganizations, shall elect its officers not less often than once

every five years either by secret ballot among the mem-

bers in good standing or at a convention of delegates

chosen by secret ballot.

~ Officers of local labor organizations; manner of election

(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.

Request for distribution of campaign literature; civil action for

enforcement; jurisdiction; inspection of membership lists;

adequate safeguards to insure fair election

except a federation of national or international labor or-

ganizations, and every local labor orgarization, and its

officers, shall be under a duty, enforceable at the suit of

any bona fide candidate for office in such labor organiza-

tion in the district court of the United States in which

such labor organization maintains its principal office, to

comply with all reasonable requests of any candidate to

distribute by mail or otherwise at the candidate’s ex-

pense campaign literature in aid of such person’s can-

didacy to all members in good standing of such labor

organization and to refrain from discrimination in favor

of or against’ any candidate with respect to the use of

lists of members, and whenever such labor organizations

or its officers authorize the ‘distribution by mail or other-

wise to members of campaign literature on behalf of any

candidate or of the labor organization itself with refer-

ence to such election, similar distribution at the request

of any other bona fide candidate shall be made by such

labor organization and its officers, with equal treatment

as to the expense of such distribution. Every. bona fide

candidate shall have the right, once within 30 days prior

to an election of a labor organization in which he is a

candidate, to inspect a list containing the names and last

known addresses of all members of the labor organiza-

tion who are subject to a collective bargaining agreement

requiring membership therein as a condition of employ-

ment, which list shall be maintained and kept at the

principal office of such labor organization by a desig-

nated official thereof. Adequate safeguards to insure a

fair election shall be provided, including the right of any

candidate to have an observer at the polls and at the

counting of the ballots.

Officers of intermediate bodies; manner of election

(d) Officers of intermediate bodies, such as general

committees, system boards, joint boards, or joint coun-

cils, shall be elected not less often than once every four

years by secret ballot among the members in good stand-°

ing or by labor organization officers representative of

such members who have been elected by secret ballot.

Nomination of candidates; eligibility; notice of election; .voting rights;

counting and publication of results; preservation

of ballots and records

(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

EEE a

member in good standing shall be eligible to be a candi-

date and to hold office (subject to section 504 of this

_ title and to reasonable 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, discipline, or improper interference

or reprisal of any kind by such organization or any mem-

ber thereof. Not less than fifteen days prior to the elec-

tion notice thereof shall be mailed to each member at his

last known home address. Each member in good stand-

ing 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 authorization pro-

vided for in a collective bargaining agreement shall be

_declared ineligible to vote or be a candidate for office in

such organization 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, separately. The election officials des-

ignated 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 pertaining to the

election. The election shall be conducted in accordance

with the constitution and bylaws of such organization in-

sofar as they are not inconsistent with the provisions of

this subchapter. |

Election of officers by convention of delegates; manner of

conducting convention; preservation of records

(f) When officers are chosen by a convention of dele-

gates elected by secret ballot, the convention shall be

conducted in accordance with the constitution and by-

laws of the labor organization insofar as they are not

inconsistent with the provisions of this subchapter. The

officials designated in the constitution and bylaws or the

secretary, if no other is designated, shall preserve for one ~

year the credentials of the delegates and all minutes and

other records of the convention pertaining to the election

of officers.

Use of dues, assessments or similar levies, and funds of

employer for promotion of candidacy of person

(g) No moneys received by any labor organization by

way of dues, assessment, or siniilar levy, and no moneys —

of an employer shall be contributed or applied to promote

the candidacy of any person in an election subject to the

provisions of this subchapter. Such moneys of a labor

organization may be utilized for notices, factual state-

ments of issues not involving candidates, and other ex-

penses necessary for the holding of an election.

Removal of officers guilty of serious misconduct

(h) If the Secretary, upon application of any member

of a local labor organization, finds after hearing in ac-

cordance with the Administrative Procedure Act that the

constitution and bylaws of such labor organization do not

provide an adequate procedure for the removal of an

elected officer guilty of serious misconduct, such officer

may be removed, for cause shown and after notice and

hearing, by the members in good standing voting in a

secret ballot conducted by the officers of such labor or-

ganization in accordance with its constitution and bylaws

insofar as they are not inconsistent with the provisions

of this subchapter. |

Rules and regulations for determining adequacy of removal

procedures

(i) The Secretary shall promulgate rules and regula-

tions prescribing minimum standards and procedures for

determining the adequacy of the removal procedures to

which reference is made in subsection (h) of this section.

Pub.L. 86-257, Title IV, § 401, Sept. 14, 1959, 73 Stat. 532.

§ 402 -(29 USCA 482): Enforcement—Filing of Complaint;

Presumption of Validity of Challenged Election

(a) A member of a labor organization—

(1) who has exhausted the remedies available un-:

der the constitution and bylaws of such organization

and of any parent body, or

(2) who has invoked such available remedies

without obtaining a final decision within three cal-

endar months after their invocation,

may file a complaint with the Secretary within one

calendar month thereafter alleging the violation of any

provision of section 481 of this title (including violation

of the constitution and bylaws of the labor organization

pertaining to the election 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 con-

ducted by the officers elected or in such other manner as

. its constitutiori and bylaws may provide.

Investigation of complaint: commencement of civil action by

Secretary; jurisdiction; preservation of assets

(b) The Secretary shall investigate such complaint

and, if he finds probable cause to believe that a violation

of this subchapter has occurred and-has not been reme-

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

zation as an entity in the district court of the United

States in which such labor organization maintains its

principal office to set aside the invalid election, if any,

and to direct the conduct of an election or hearing and

vote upon the removal of officers under the supervision

of the Secretary and in accordance with the provisions of

this subchapter and such rujes 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 organization.

Declaration of void election; order for new election; certification of

election to court; decree; certification of result of vote

for removal of officers

trial upon the merits, the court finds—

(1) that an election has not been held within the

time prescribed by section 481 of this title, or

(2) that the violation of section 481 of this title

_ 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

organization. The Secretary shall promptly certify to the

court the names of the persons elected,-and the court

shall thereupon enter a decree declaring such persons to

be the officers of the labor organization. If the proceeding

is for the removal of officers pursuant to subsection (h)

of section 481 of this title, the Secretary shall certify the

results of the vote and the court shall enter a decree de-

claring whether such persons have been removed as offi-

cers of the labor organization.

Review of orders; stay of order directing election

(d) An order directing an election, dismissing a com-

plaint, or designating elected officers of a labor organi-

zation 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. Pub. L.

86-257, Title IV, § 402, Sept. 14, 1959, 73 Stat. 534.

§ 403 (29 USCA 483). Application of Other Laws; Existing

Rights and Remedies; Exclusiveness of Remedy for

Challenging Election

No labor organization shall be required by law to con-

duct elections of officers with greater frequency or in a

different form or manner than is required by its own

constitution or bylaws, except as otherwise provided by

this subchapter. Existing rights and remedies to enforce

the constitution and bylaws of a labor organization with

respect to elections prior to the conduct thereof shall not

be affected by the provisions of this subchapter. The

‘remedy provided by this subchapter for challenging an

election already conducted shall be exclusive. Pub. L..

86-257, Title IV, § 403, Sept. 14, 1959, 73 Stat. 534.

SUBCHAPTER VII.—

_ MISCELLAN EOUS PROVISIONS

Title VI of the Labor-Management Reporting and Dis-

closure Act of 1959 provides as follows:.

§ 601 (29 USCA 521).. Investigations by Secretary; appli-

cability of other laws

(a) The Sécretary.shall have power when he believes

it necessary in order to determine whether any person

has violated or is,about to violate any provision of this

chapter (except subchapter II of this chapter) to make

an investigation and in connection therewith he may

enter such places and inspect such records and accounts

and question such persons as he may deem necessary to

enable him to determine the facts relative thereto. The

Secretary may report to interested persons or officials

concerning the facts required to be shown in any report

required by this chapter and concerning the reasons for

failure or refusal to file such a report or‘any other matter

which he deems to be appropriate as a result of such an

investigation.

* * * * *

FEDERAL RULES OF CIVIL: PROCEDURE

Rule 24. Intervention.

(a) INTERVENTION OF RIGHT. Upan timely ap-

plication anyone shall be permitted. to intervene in an

action: (1) when a statute of the United States confers

an unconditional right to intervene; or (2) when the

applicant claims an interest relating to the property or

transaction which is the subject of the action and he is

so situated that the disposition of the aetion may as a

practical matter impair or impede his ability to protect

that interest, unless the applicant’s interest is adequately -

represented by existing parties.

* * * * *

Rule 82. Jurisdiction and Venue Unaffected. These rules

shall not be construed to extend or limit the jurisdiction

of the United States district courts or the venue of actions

therein. An admiralty or. maritime claim within the

meaning of Rule 9(h) shall not be treated as a civil ac-

tion for the purposes of Title 28, U.S.C., §§1391-93.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.