Memorandum — Dunlop v. Bachowski

IN THE

| Sonal

Supreme Court of the Mant Biates

October Term, 1974

No. 74-466

Peter J. BRENNAN, SECRETARY OF Lasor,

Petitioner,

v.

WALTER BacHOwSKI,

Respondent.

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Third Circuit

MEMORANDUM OF

UNITED STEELWORKERS OF AMERICA,

AFL-CIO

5 Bredhoff, Cushman, Gottesman

& Cohen

1000 Connecticut Avenue, N.W.

Washington, D.C. 20036

: ~ Of Counsel James ENGLISH

BerNARD KLEIMAN United Steelworkers of America,

i Kleiman, Cornfield & Feldman AFL-CIO

10 South LaSalle Street Five Gateway

Chicago, Illinois 60603 Pittsburgh, Pennsylvania 15222

Attorneys for United Steelworkers

of America, AFL-CIO

EE ee

>-

IN THE

Supreme Court of the Gnited States

October Term, 1974

No. 74-466

PETER J. BRENNAN, SECRETARY OF LABOR,

~ Petitioner,

Vv.

WALTER BACHOWSKI,

Respondent.

On Petition for a Writ of Certiorari ©

to the United States Court of Appeals

for the Third Circuit

MEMORANDUM OF

UNITED STEELWORKERS OF AMERICA,

AFL-CIO

Although not named in the caption of the petition for

certiorari, United Steelworkers of America, AFL-CIO

(“USWA”) is a party herein pursuant to this Court’s Rule

21(4).1 USWA shares the view of the Secretary of Labor,

expressed in his petition, that this case warrants review by

1 USWA was a co-defendant with the Secretary of Labor in the dis-

trict court (Petition, page 21A), and was an appellee in the Court

below (Id., page 1A).

2

this Court.2 In this memorandum, we briefly describe the .

importance of this case from the vantage point of unions

whose elections are regulated by Title IV.

ARGUMENT

In Trbovich v. Mine Workess, 404 U.S. 528, 537 (1972),

this Court recognized the Congressional intention “to insu-

late the union from any complaint that did not appear meri-

torious to . . . the Secretary.” The decision below, by

opening the door to possible suits on claims which the Sec-

retary has found without merit, is in apparent conflict with

the statutory scheme adopted by Congress and recognized

in Trbovich. Moreover, as explained herein, the decision

below will have adverse effects upon unions’ abilities to per-

form effectively, effects which Congress did not intend.

It is self-evident that a union officer whose election is un-

der challenge is handicapped in the performance of his

duties. Congress was sensitive to this problem when it

enacted Title IV. One of its objectives was “to settle-as

quickly as practicable the cloud on ‘the incumbents’ title to

office . . .” Wirtz v. Bottle Blowers Association, 389 US.

463, 468-469, n. 7 (1968). To that end, Congress specified

time limits both for the filing of members’ complaints with

the Secretary, 29 U.S.C. §482(a), and for the institution

of l.wsuits by the Secretary when he finds such complaints

meri‘urious, 29 U.S.C. §482(b).

fhe decision below, by allowing private actions challeng-

ing the Secretary’s determination that suit under Title IV is

2 The issue presented relates to the scope of the Secretary’s authority

under Title IV of the LMRDA. USWA, believing that such an issue

is more appropriately presented to this Court by the Secretary than by

private parties subject to that authority, refrained from filing its own

petition. However, USWA fully supports the Secretary’s perception of

his authority, and thus agrees with the Secretary that the case was

wrongly decided by the court below and that, at the least, the decision

below warrants review by this Court.

‘

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not warranted, necessarily extends the period during which

a union officer’s status remains under a cloud. Nor should

it be assumed that the filing of such private actions would

be limited to the rare situations in which a credible claim

could be mounted that the Secretary has abused his discre-

tion. The realities of union politics being what they are, a

defeated candidate has many reasons, independent of any

hope of ultimate litigation victory, for filing such an action.

The action serves, in effect, as the kick-off of his campaign

for the next union election. He is likely to achieve consider-

able notoriety by the filing of such an action, and its pend-

ency enables him to appeal to the electorate that he was

“robbed” in the last election and deserves their considera-

tion in the next.

By opening the judicial gates to such actions, the decision

below invites a flood. The experience in USWA’s 1973 elec-

tion is an augur. Complaints were filed to the Secretary in-

volving four offices, and the Secretary brought suit only with

respect to the two complaints which he found meritorious.

Each of the other two complainants filed a private action

challenging the Secretary’s failure to file suit on his behalf.’

It is of course theoretically conceivable that the Secretary

might someday decline to sue in circumstances which a court

‘might later find arbitrary or capricious. But Congress clearly

believed that that danger was outweighed by the harm

which would result from permitting the host of lawsuits in

which such a claim would be advanced frivolously. The

“}imited resources of the Secretary” (Hodgson v. Steelwork-

ers, 403 U.S. 333, 339 (1971) ) and of the union would be

diverted from their assigned functions; the courts would be

overburdened; and the union’s ability to represent its mem-

3 In addition to the instant case, see Valenta v. Brennan, Civ. Ac.

No. C-74-11 (N.D. Ohio, Eastern Div.).

4

bers would be hampered by the continuing doubt whether

its officers were properly elected and would serve out their

term. At the least, considering the conflict among the lower

courts, these consequences should not be allowed without

prior review by this Court. \

Respectfully submitted,

MicuaeLt H. GotresMAN

Bredhoff, Cushman, Gottesman

& Cohen

1000 Connecticut Avenue, N.W.

Washington, D.C. 20036

James ENGLISH

United Steelworkers of America,

AFL-CIO

Of Counsel: Five Gateway Center

BERNARD KLEIMAN Pittsburgh, Pennsylvania 15222

Kleiman, Cornfield & Feldman

10 South LaSalle Street Attorneys for United Steelworkers

Chicago, Illinois 60603 of America, AFL-CIO

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