# Memorandum — Dunlop v. Bachowski > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386414_0422%3A03 ## Record - **Collection:** Supreme Court brief - **Document type:** Memorandum - **Published:** January 1, 1975 - **Citation:** 421 U.S. 560 ## Text 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. ‘ RA 3 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 oo --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386414_0422%3A03. Public record. Not legal advice.