Amicus Curiae Brief — Dunlop v. Bachowski

in

Page

STATEMENT oF INTEREST .............-.---0 20 eee 1

STATEMENT OF THE CASE .............------ 0200005 3

SumMakRy oF ARGUMENT ..............-.00 2-00-0050 0- 4

_ ARGUMENT ..... 00... es 7

L. The Secretary of Labor’s refusal to bring suit

to set aside a challenged union election is not

immune from judicial review to determine

‘whether that ietaat was arbitrary or was not

in accordance with the law ..............-. 7

Il. Judicial Scrutiny of the Secretary’s refusal

to sue is necessary for Title IV to fulfill its

PUFPOSE .. 0... ete eens 17

COMCLUEIOM 00. cece cece eee e ee eeeee 24

TABLE OF CITATIONS

CasEs:

Abbott Laboratories v. Gardner, 387 U.S. 136 ........ 7

Amal. Ass’n Street, Elect. Ry. & Motor Coach Em-

ployees v. Lockridge, 403 U.S. 274 .............. 15

American Federation of Musicians v. Wittstein, 379

i. SR ieee en ee ee ee ar. fT

ae to Preserve Overton Park v. Volpe, 401 U.S.

Workers, 391 U.S. 418 ...........---.---2--25-.

Trbovich v. United Mine Workers of America, 404 U.S.

eo ae onnsigesrvede 9, 11, 13, 14

Vaca v. Sipes, 386 U.S. 171 .............---------5- 15

Wirtz v. Local 153, Glass Bottle Blowers Ass’n, 389

U.S. 463 8-9, 17-18

ee ae RASH WEBBER OC CEH RCP SE DHHS HO HS

SraTuTEs:

Labor-Management Reporting And Disclosure Act o

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

Section 210, 29 U.S.C. 440 ...........-..---- 15

Section 401, 29 U.S.C. 481 ............------ 8

il Table of Citations Continued

Page

Section 402(b), 29 U.S.C. 482(b) ..... 5, 14, 15, 16

Section 402(c), 29 U.S.C. 482(¢c) ............ 16

Section 403, 29 U.S.C. 483 ................. ff)

Labor-Management Relations Act, 61 Stat. 136, as

amended 73 Stat. 541, 28 U.S.C. 151 et seq.:

Section 10(b) ...............00000..0...... 15

CONGRESSIONAL MATERIALS: |

104 Cong. Rec. 10947 ............ 10, 11-12, 16 .

105’Cong. Rec. 19765 ................... 00002200... 16

Hearings before the Subcommittee on Labor of the

Senate Committee on Labor and Public Welfare,

on Labor-Management Reform Legislation, 8.505

etc., 86th Cong., Ist Sess. ..................... 12, 14

H.R. 8342, 86th Cong., Ist Sess. .................... 12

H. Rep. No. 741, 86th Cong., Ist Sess............... 12,17

H. R. No. 1187, 86th Cong., 1st Sess. (1959) (Confer-

OU Toes dd one R EL oad ec enowe ees - 16

S. 3974, 85th Cong., 2d Sess. ...................... 11, 12

S.. 506, B6th Comg., Ist Beas. ....:................-.- 12

S. Rep. No. 1684, 85th Cong., 2d Sess. (1958) ........ 11-16

S. Rep. No. 187, 86th Cong., Ist Sess. (1959) ... .8, 9-10, 16

MISCELLANEOUS:

Ass’n For Union Democracy, Union Democracy in

Bewria, TOUD-TE (UGTA) oa ke ee ec oe 18

D. Bok and John Dunlop, Labor And The American

Camemeeiy EEPR) ws. eee de 18, 22

F. Cormier and W. Katon, Reuther (1970) ........... 18

K. Davis, Administrative Law Treatise 1970 Supple-

ee OR a ela ICI NS terete ah. A ne eee 7, 15

Herling, Right to Comes CROF Ee Ni oa is ee 18

L. Jaffe, Judicial Control of Administrative Action . .7, 15

\

2

3

%

%

a

§

a

eed wee

ae

‘Table of Citations Continued iii

Page

R. James and E. James, Hoffa And The Teamsters:

A Study of Union Power (1965) | are 18

S. Lipsett, et al, Union Democracy (1956) eeeyetee Se

Summers, Disciplinary Powers of Unions, 3 Ind. &

Lab. Rel. Rev. 483 (1950) . a dw tape ae

Summers, Judicial a of Union ames 70

Yale L.J. 1221 (1961) | ee eer eres 18

U.S. Dept. of Labor, Union Blections Under The

LMRDA, 1966-70 (1972) — _.19, 20

Union Elections ‘And The LMRDA: Thirteen Years of

Use And Abuse, 81 Yale L.J. 407 (1972) . 19, 20, 21, 22

IN THE

‘Supreme Court of the United States

Octoser TERM, 1974

No. 74-466

Peter J. BRENNAN, SECRETARY OF LABOR,

Petitioner

Vv.

WALTER BACHOWSKI

On Writ of Certiorari to the United States Court of Appeals

for the Third Circuit

BRIEF AMICUS CURIAE FOR THE ASSOCIATION

FOR UNION DEMOCRACY. INC.

STATEMENT OF INTEREST

The Association for Union Democracy, Inc. is a

non-profit corporation registered in the State of New

York in 1969. [Granted tax-exempt status by the In-

ternal Revenue Service in January 1971; and subse-

quently classified by the IRS as a non-private founda-

tion.] The aim of the Association, as stated in its cer-

tificate of incorporation, is to further democratic prin-

ciples and practices in American labor organizations

both by encouraging union members to participate

actively in the internal life of their union and by pro-

tecting the exercise of their democratic rights within

¢

their union. In establishing the Association, its found-

ers were motivated by the realization that no other

citizens organization devoted itself primarily to this

objective.

The Association does not take sides in internal union

disputes, over policy, program, or candidates. But it

does propose that the rivalries and antagonisms which

arise in the labor movement, as in other social insti-

tutions, be resolved on the basis of democratic pro-

cedures and due process.

The sponsors of the Association include persons who

are or have been known leaders of major. unions, re-

ligious leaders concerned with social justice, members

of union public review boards, lawyers, prominent

educators in workers education in labor law. Despite

divergent backgrounds, all share the view that the

labor movement is one of the great forces which help

sustain democracy in our national life, and that if it

is to serve this purpose most effectively, union leaders

must be responsive to their members ard unions must

be democratic in their internal life.

One of the primary concerns of the Association has

been in promoting and protecting the democratic

process in union elections as the most crucial single

element of union democracy. The Association has rec-

ognized that in some unions fair and honest elections

can be secured only through the intervention of the

law to protect democratic rights. The vitality of union

democracy in such unions depends on the availability

of effective legal protection.

«» Under the LMRDA the Secretary of Labor is as-

signed a heavy responsibility for protecting fair union

election procedures. Once an election hag been held,

*

3

he is the sole recourse of union members whose rights

to a fair election have been denied. The present case

raises the critical issue how the Secretary will fulfill

that responsibility and whether he can be required

to provide union’ members the protection the statute

guarantees. How this case is decided will vitally affect

the work of the Association and the values it seeks

to promote.

The Association presents this brief in support of

Mr. Bachowski with the consent of counsel for all

parties.

STATEMENT OF THE CASE

Respondent Walter Bachowski was a candidate for

the office of District Director of District 20 of the

United Steelworkers of America in an election held

on February 13, 1973. He was defeated in that election

by 907 votes out of approximately 24,000 votes cast.

After exhausting his remedies within the union, he

filed a timely complaint with the Secretarv of Labor

on June 21, 1973, alleging numerous violations of the

union constitution and Section 401 of the Labor- .

Management Reporting and Disclosure Act. of 1959

(LMRDA).

Following an investigation of this complaint, the

Secretary on November 5, 1973, notified Bachowski

by telephone that he had decided not to file suit to

set aside the election. No explanation was given why

the suit would not be filed.

Respondent thereupon brought suit against the Sec-

retary and the union, seeking to compel the Secretary

to file suit to set aside the election. The complaint

alleged, inter alia, that the Secretary’s investigation

4

had substantiated the alleged charges of election ir-

regularities and that those irregularities had affected

the outcome of the election, but notwithstanding this

the Secretary had refused to set aside the election and

had failed even to inform Bachowski of his reasons

for that refusal.’

The district court dismissed the complaint for lack

of jurisdiction over the subject matter. The court of

appeals reversed, holding that the district court had

federal court jurisdiction and that the Secretary’s

decision not to bring suit to upset a union election

under Section 402 of LMRDA was subject to judicial

review. Bachowski v. Brennan, 502 F.2d 79.

SUMMARY OF ARGUMENT

The Secretary contends that he has absolute discre-

tion to refuse to bring suit to set aside a union election

even though his own investigation has shown that vio-

lations of Title IV of the LMRDA have affected the

outcome of that election. That contention is contrary

to the intention of Congress, derogates from the rights

guaranteed by Title IV, and undermines the purposes

of the Act.

The Secretary was charged by Congress with the

responsibility of enforcing the rights guaranteed by

Title IV to assure fair and democratic rights. Those

rights are basic democratic rights in which the public

has an interest, but they are also fundamental indi-

vidual rights of union members. After an election

1 The statement of reasons attached as an appendix to Petitioner’s

brief was submitted to the district court more than a year later and

in compliance with an order of the court of appeals in the case now

being appealed.

pi a IT SATE GALLEY RTE

;

5

those rights can be enforced only through the Secre-

tary. His insistence on absolute discretion to refuse

to sue is assertion of an unreviewable power to de-

prive members of their basic democratic rights. This

is clearly not the role contemplated by Congress when

it made his suit the exclusive remedy for challenging

an election.

The Secretary was intended by Congress to serve

three functions. First, he was to serve as the union

member’s lawyer to protect the members’ rights which

they might be unable to protect themselves. Second,

he was to serve as a screen to protect unions from

frivolous suits where there was no probable cause to

believe that violations had occurred or the violations

were technical and could not have affected the outcome

of the election. He was not to protect unions from

meritorious suits where there were grounds for setting

aside the election. Third, the Secretary’s suit was to

consolidate in a single suit all meritorious complaints

challenging the validity of the election. None of these

functions justifies, much less requires, that the Secre-

tary have absolute discretion to refuse to bring suit

where meritorious claims that violations of Title IV

rights have affected the outcome of the election.

The words of Section 402(b) impose a positive man-

date on the Secretary. He ‘‘shall investigate,’’ and if

he finds probable cause, ‘‘he shall . . . bring a civil

action.’’ Throughout the legislative history his respon-

sibility was expressed in mandatory terms. Nowhere

in the legislative history is there any suggestion that

he could or would refuse to sue where his investigation

showed probable cause that violations may have af-

fected the outcome. His discretion was limited to

6

weighing the evidence and predicting the likelihood

of success in the litigation.

The motivating purpose of Title IV was to make

union officers responsive to the desires of their mem-

bers. This purpose is fulfilled only when members who

are dissatisfied with union policies and leadership

make use of the democratic processes protected by

Title IV. But challenging incumbent officers in an

election is exceedingly difficult, often costly, and some-

times dangerous. The willingness of dissatisfied mem-

bers to undertake these burdens and risks depends on

their confidence that their rights under Title IV will

be protected and that they will be guaranteed a fair

and democratic election. Appealing to the Secretary

to set aside an unfair election carries added costs and

risks. If dissatisfied members, having traveled that

long and perilous road, can be told that even though

violations of their rights have cheated them of victory,

the Secretary has absolute discretion whether to ob-

tain for them a fair election, they will be discouraged

from exercising the rights Congress sought to protect,

and they will not appeal to the Secretary for protec-

tion of those rights. Vitality of the democratic process

.depends on confidence in the Secretary’s decisions.

That confidence requires judicial review of his deci-

sions not to sue so members have assurance from a

court that his decisions are not arbitrary and are in

accordance with law.

7

ARGUMENT

I

The Secretary of Labor's Refusal to Bring Suit to Set Aside a

Challenged Union Election Is Not Immune From Judicial

Review to Determine Whether That Refusal Was Arbitrary

Or Was Not in Accordance With the Law

The contention of the Secretary, stated simply, is

that he has absolute discretion to refuse to bring suit

to invalidate a union election even though his own

investigation: has substantiated that the charged vio-

lations of Title IV affected the outcome of that elec-

tion. The Respondent’s complaint alleges:

‘£18. Notwithstanding the fact that the Defendant

Secretary’s investigation has substantiated the

plaintiff’s allegations and notwithstanding the

fact that the irregularities charged affected the

outcome of the election, the Defendant Secretary

refuses to file suit to set aside the election.’’ (Ap-

pendix, P. A5)

The Secretary’s position is that even though this is

true, the district court has no authority to review his

action and he is answerable only through the polivical

process (Petitioner’s brief, p. 30). He insists that his

action is immune to judicial scrutiny in the face of

this Court’s clear declaration that—

‘*judicial review of a final agency action by an

aggrieved person will not be cut off unless there

is persuasive reason to believe that such was the

p of Congress.: Abbott Laboratories v.

Gardner, 387 U.S. 136, 140."

* See, Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S.

402, 410; K. Davis, ADMINISTRATIVE Law TREATISE (1970 Supple-

ment) §§ 28.08, 28.16; L. Jaffe, Jupicta, Contro. or ADMINISTRA-

TivE ACTION, 336, 372 (1965).

NRRL SEE SF OSE

There is no substantial reason to believe that Con-

gress intended to give the Secretary absolute discre-

tion to determine whether or not to bring suits to set

aside elections conducted in violation of the Act. On

the contrary, the nature of the rights to be protected

by a suit to set aside an invalid election, the role of

the Secretary in bringing such suits, and the limited

discretion explicitly recognized by Congress all point

in the opposite direction. They all provide persuasive

reasons to believe that Congress did not intend to

preclude judicial review.

A. The Nature Of The Rights Protected By The

Secretary’s Suit To Set Aside An Election

Protection of the right to free and fair elections

is central to the Congressional purpose of insuring the

‘responsiveness of union officers to the will of their

members.’’ S. Rep. No. 187, 86th Cong., Ist Sess. 20

(1959). To guarantee this central right, Title IV pro-

tects a wide range of democratic rights—the right to

vote and to have votes counted honestly, the right to

nominate and to support candidates of one’s choice,

the right to run for union office and to distribute cam-

paign literature. LMRDA § 401. The exercise of these

rights encompasses even more fundamental rights of

freedom of speech, freedom of assembly, and the right

to participate equally in union affairs guaranteed by

Title I.

These rights guaranteed by Title IV are not purely

public rights but are individual rights of union mem-

bers. When the Secretary brings suit to set aside an

election, under Section 402, he serves two distinct in-

terests. He protects the ‘‘vital public interest in assur-

ing free and democratic union elections,’ Wirtz v.

pets

AP Sialartrtiande HAL Hees Ses ASE

ea

r yo

9

Local 153, Glzss Bottle Blowers Ass’n, 389 U.S. 463,

475 (1968). He also acts on behalf of the individual

union member to protect his rights in the union.

Trbovich v. United Mine Workers of America, 404

U.S. 528, 538-9 (1972).

If the Secretary refuses to sue when violations of

the Act have affected the outcome of the election, both

the public interest in fair and democratic union elec-

tions is sacrificed, and the rights of union members

to choose their officers and thereby influence the policy

and leadership in the union are destroyed. For under

Section 403, the exclusive remedy for challenging an

election is a suit by the Secretary; after the election

has been held, he becomes the sole avenue for protect-

ing and vindicating the rights guaranteed by Title IV.

If he refuses to bring suit, both the public interest

and the rights of union members go unprotected and

unvindicated.

There is no persuasive reason to believe that Con-

gress intended to give the Secretary absolute discre-

tion to sacrifice this central public interest in fair

and democratic elections when he deemed it was out-

weighed by other public interests. There is even less

reason to believe that Congress intended to give him

unreviewable discretion to ignore and destroy basic

democratic rights of individual union members, rights

which Congress labored so long and hard to guarantee.

Furthermore, after an election a union member’s

preexisting rights under state law to enforce the

union’s constitutional provisions relating to the elec-

tion can be enforced only through a suit by the Secre-

tary.’ If the Secretary arbitrarily refuses to bring

* Prior to the conduct of an election, existing rights and remedies

to enforce the constitutional provisions may be brought by a union

SL RYO A CRO

= aia

10

suit, the union member will lose those rights to a fair

election which he had before the statute was enacted.

This result would be directly contrary to the clear

purpose of Congress not to supplant existing rights

of union members to a fair election, but to add to those

rights and to place on the Secretary the responsibility

for enforcing those rights after an election had been

conducted.*

B. The Role of the Secretary in Enforcing Rights

Guaranteed by Title IV

The legislative history of Title IV discloses three

distinct reasons the Secretary was charged with re-

sponsibility for enforcing Title IV rights, and those

reasons prescribe the role Congress intended him to

play in enforcing those rights. No aspect of his role

justifies, much less requires, that he have absolute dis-

cretion to determine whether or not to bring suit to

set aside a challenged election.

member in the state courts. Section 403, S. Rep. No. 187, 86th Cong.,

Ist Sess., 21 (1959).

* In discussing the enforcement provisions of what is now Title IV,

Senator Wiley and Senator Kennedy engaged in the following

colloquy :

Senator Wiey. So I understand that the bill does not at-

tempt to interfere with a member’s present rights with relation

to a union or union members who may invade his rights, along

the lines suggested in the two recent decisions.

Senator KENNEDY. The Senator from Wisconsin is entirely

correct.

Senator WizEy. The bill simply gives additional rights, as I

understand——_

SENATOR KENNEDY. Yes; that is correct.

Senator WIiLEy. In order that the Secretary of Labor can

look after the member’s rights in the case of such elections in

unions, and in cases of trusteeship, and so forth. Is that correct ?

Senator Kennepy. Yes. 104 Cong. Rec. 10947 (1958).

a sat EVEL LT IE SL

11

First, the Secretary is to serve as ‘‘the union mem-

ber’s lawyer,” protecting the rights of union members

which they are unable to protect themselves. Trbovich

v. United Mine Workers of America, supra, 404 U.S.

at 539.

S.3974, which had enforcement provisions substan-

tially the same as those enacted in Section 402, was

reported out of the Senate Committe eon Labor and ~

Public Welfare on June 10, 1958 (S.Rep.No. 1684,

85th Cong., Ist Sess.), and after extensive debate was

passed by the Senate on June 17, 1958. During that

debate, Senator Kennedy emphasized that the reason

for enforcing Title IV rights through suits brought

by the Secretary was to provide a more effective rem-

edy than suits by union members in state courts. He

cited as a ‘“‘classic example”’ the case of members of

the Teamsters who brought suit to challenge the elec-

tion of James Hoffa. After months of litigation, they

had to accept a settlement which was highly unsatis-

factory, and then were confronted with a lawyer’s bill

for $300,000. Senator Kennedy then underlined the

role of the Secretary in these words:

j ‘In the bill we provide the right of appeal to the

: Secretary of Labor, whenever a member believes

that his rights, as provided in the bill in the case

of an election, have been denied him. Then. the

Secretary of Labor in effect becomes the union

member’s lawyer.’’ 104 Cong. Rec. 10947 (1948).

BRE aS SR Wat Sy oe

Later in the same colloquy he reemphasized the rea-

son for giving this responsibility to the Secretary:

‘‘In the case of elections, the Bill gives the Secre-

tary of Labor authority—and we expect him to

enforce this Section—to set aside any election in

which a member is denied his rights, whereas at

cane = —

é orien etna ee

12

the present time a member is not given that right,

and cannot obtain it and cannot afford to carry

a case to the state court.’’ Ibid.

S.3974 was defeated in the House, and on January

20, 1959, Senator Kennedy introduced 8.505, which

contained essentially the same enforcement provisions.

In the hearings on 8.505, Professor Cox, who was a

principal consultant to the draftsmen, described the

election enforcement provisions as similar to those to

lift improper trusteeships. Hearings before the Sub-

committee on Labor of the Senate Committee on Labor

and Public Welfare, on Labor-Management Reform

Legislation, 86th Cong., Ist Sess. 134. In explaining

the reasons for placing enforcement of those provi-

sions in the hands of the Secretary, he said:

‘‘individual workers, for reasons already men-

tioned, are unwilling or unable to sue an inter-

national union. ... There is ample precedent for

authorizing a government agency to bring action

for the protection of particular classes of persons

unable to protect themselves.’’ Hearings at 132.

When the House Committee on Education and Labor

reported out H.R. 8342 (H.Rep.No. 741, 86th Cong.,

Ast Sess.) it provided for enforcement of Title IV

rights through suits by union members. It was sharply

criticized by dissenting members of the Committee as

lacking ‘‘any effective enforcement procedure”’ be-

cause ‘‘the individual union member must shouldez

the burden of litigation costs himself.’’ H.R.Rep. No.

741, supra p. 93. '

The role of the Secretary as ‘‘the union member’s.

lawyer’”’ precludes any claim of absolute discretion

whether to bring suit or not. This role imposes on him

3

4

3

‘

13

the obligation to protect the member’s rights, and

limits his discretion to that of a responsible lawyer.

Second, the Secretary is to serve as a screen “‘to pro-

tect unions from frivolous litigation and unnecessary

judicial interference in their elections.” Trbovich v.

United Mine Workers of America, supra, at 532. By

requiring that post-election suits to challenge an elec-

tion be brought through the Secretary, Congress pro-

tected unions from the ‘‘unnecessary harassment’’ of

multiple litigation by any union member. who was

dissatisfied. with the outcome of the election\and who

alleged some technical violation. :

The screening function, however, was intended to

protect unions only from ‘“‘frivolous’’ complaints—

those which lacked substance in fact, or which were

technical violations not affecting the outcome of the

election. The screening function was not intended to

shield unions from meritorious complaints of substan-

tial violations. The Secretary must exercise judgment

as to whether the claimed violations can be substanti-

ated in court and whether they may have affected the

outcome of the election. But the exercise of that judg-

ment does not require nor carry with it the uncon-

trolled discretion asserted by the Secretary.

The Petitioner contends that to subject the Secre-

tary’s refusal to sue to judicial scrutiny would effec-

tively result in exposing the union to multiple and

frivolous litigation. This wholly misconceives the pro-

ceedings involved. The action is brought against: the

Secretary, not against the union.’ The evidence focuses

® The union was joined in the present case because the complaint

also alleged that the union had violated its duty to protect the plain- - -

tiff’s rights under Title IV and had breached its duty of fair

representation. App. 6A, paragraph 21.

14

on what the Secretary has done, not what the union

has done. And the question is whether the Secretary

' has acted arbitrarily or not in accordance with law.

Nor will there be multiple litigation, for judicial re-

view of the Secretary’s refusal to sue can be accom- .

plished in-a single proceeding.

Third, the Secretary’s suit serves to consolidate in

a single proceeding all meritorious complajnts chal-

lenging the validity of an election. Trbovich v. United

Mine Workers of America, supra, 404 U.S. at 532. In

the words of Professor Cox, ‘‘ An election is an integer.

Its validity should be adjudicated once and for all in

one forum.” Hearings on 8.505, supra, p. 135. All

complaints concerning ‘the conduct of an election are

filed with the Secretary. He consolidates all of the

complaints in a ‘single investigation, determines

whether the cumulative effect of the substantiated vio-

lations may have affected the outcome of the election,

and brings a single suit to set the election aside.

_ The consolidation function of the Secretary does not

require, nor is in any way advanced by, absolute dis-

cretion in the Secretary to refuse to bring suit. The

fact that the Secretary’s single suit will enforce multi-

ple rights can in no way justify the Secretary’s claim

that he has absolute discretion not to enforce those

rights. On the contrary, it would seem that when the

whole fabric of democratic rights guaranteed by Title

IV depends on the Secretary’s decision to bring a

single suit, that decision should not be immune from

judicial scrutiny.

C. The Mandatory Language And Intent of Congress

The words of Section 402(b) are not permissive but

impose a positive mandate on the per Ferry Vv.

5

2

§

3

‘

15

Udall, 336 F.2d 706 (C.A.9), certiorari denied, 381

U.S. 904. That section provides that when a union

member has properly filed a complaint with the Secre-

tary under Section 402(b)—

‘The Secretary shall investigate such complaint

and, if he finds probable cause to believe that a

violation of this title has occurred and has not

been remedied, he shall, within sixty days after

the filing of such complaint bring a civil action

... to set aside the invalid election. . .”” (emphasis

supplied).

This mandatory wording stands in contrast to the

permissive wording of Section 210, which provides that

whenever it appears any person has violated any pro-

vision of Title II ‘‘the Secretary may bring a civil

action for such relief . . . as may be appropriate.”’

(emphasis supplied) * This suggests that the choice of

mandatory rather than permissive words in Section

402(b) was deliberate.

*The wording of Section 402(b) directing that the Secretary

‘‘shall ... bring an action’’ also stands in contrast with the wording

of Section 10(b) of the National Labor Relations Act, which pro-

vides that the National Labor Relations Board, with the General

Counsel acting on its behalf, ‘‘shall have power to issue . . . a com-

plaint.”” Furthermore, Vaca v. Sipes, 386 U.S. 171, recognized the

intolerability of giving the General Counsel unreviewable discretion

to foreclose individual rights. 386 U.S. 182, and denied to the Gen-

eral Counsel contro] over whether a suit to enforce those rights

should be brought. The lower court decisions holding that the Gen-

eral Counsel’s refusal to issue a complaint is not reviewable has

been sharply criticized. K. Davis, ApminisTRaTIVE LAW TREATISE

(1970 Supplement) 969, 982-90; L. Jaffe, JupicIAL CoNnTROL OF

Apsrnistrative Action (1965) 360, 375. The reviewability of the

refusal of the General Counsel to act has not yet been ruled on by

this Court, Amal. Ass’n Street, Elect. Ry. & Motor Coach Em-

ployees v. Lockridge, 403 U.S. 274, 305, n.2 (Dissenting opinion of

Mr. Justice Douglas).

16

Throughout the legislative history, the Secretary’s

responsibility under Section 402(b) was described in

committee reports and floor debates in mandatory

terms, either repeating or paraphrasing the statutory

language.’ Congress did not merely authorize but di-

rected him to bring suit. Congress did not contemplate

that he might bring suit, but that he would bring suit.

~In the words of Senator Kennedy, ‘‘we expect him to

enforce this Section.’’ 104 Cong. Rec. 10947.

Congress, of course, did not intend that the Secre-

tary should be an automaton without any scope for

exercise of judgment in determining whether to bring

suit to set aside an election. First, he is to bring suit

‘if he finds probable cause to believe a violation has

oceurred.’’ He has a range of judgment in weighing

the evidence and predicting the likelihood of success

in litigation. Second, even though violations have oc-

curred, he is not required to bring suit unless he finds

probable cause to believe that they ‘‘may have affected

the outcome of the election’’ and the election can be

set aside under Section 402(c).* Again, the Secretary

* «The Secretary is directed'to investigate .. .’’ S. Rep. No. 1684,

85th Cong., 2d Sess., 7 (1958). ‘‘The Secretary is to investigate

and . . . is to institute a suit.’’ S. Rep. No. 1684, supra, p. 37. ‘‘The

Secretary must investigate complaints . . . he shall . . . institute an

action .. .’’ S .Rep. No. 187, 86th Cong., Ist Sess., 48 (1959). ‘‘The

Secretary will investigate each such complaint and and .. . he will

bring a civil action.’’ Conf. Rep. H.R. No. 1187, 86th Cong., Ist

Sess., 35 (1959). ‘‘the Secretary must investigate such a complaint

... he must .. . bring a civil action.’’ Statement of Senator Gold-

water, 105 Cong. Rec. 19765.

* This exception to the Secretary’s obligation to bring suit where

violations had occurred was expressly recognized in various com-

mittee reports. S. Rep. No. 1684, 85th Cong., 2d Sess., 7 (1958) ;

S. Rep. No. 187, 86th Cong., Ist Sess., 21 (1959).

SSIS

oe

eat te Ra eT

17

has a range of judgment in projecting whether the

violations he will be able to prove will, in the aggregate,

be sufficient to invalidate the election.

Nowhere in the legislative history is there any sug-

gestion that the Secretary was to exercise discretion

in bringing “suits under Title IV beyond determining

whether there was probable cause that violations had

occurred and whether those violations may have af-

fected the outcome of the election. There is not the

slightest hint*that the Secretary could properly refuse

to bring suit for other reasons. The consistent purpose

of both those who advocated enforcement of Title IV

rights through suits by the Secretary and those who

sought ‘enforcement through suits by union members

was to design the most effective way of insuring these

basic democratic rights. See H.Rep.No. 741, supra, p.

79. It is beyond belief that either group would have ~

tolerated, much less intended, to give the Secretary

unreviewable discretion whether to protect those basic

rights or not.

I

Judicial Scrutiny of the Secretary's Refusal to Sue Is Necessary

for Title IV to Fulfill Its Purpose

The pervading premise of the Act is that ‘‘there

should be full and active participation by the rank and

file in the affairs of the union.’’ American Federation

of Musicians v. Wittstein, 379 U.S. 171, 183. That full

and active participation can be achieved only through

democratic procedures and is achieved only to the ex-

tent that union members make use of those democratic

procedures.

‘Title IV’s special function in furthering the over-

all goals of LMRDA is to insure free and democratic

18

elections,’’ Wirtz v. Local 153, Glass Bottle Blowers

Ass’n, 389 U.S. 463,.470. But the ultimate purposes of

Title IV are achieved only when union members who

are dissatisfied with the policies and leadership of their

unions exercise their rights to nominate and support’

candidates, campaign for union office, distribute cam-

paign literature and encourage members to vote.

The decision of the Secretary whether to bring suit

to challenge an election plays a pivotal role in encour-

aging or discouraging use of these democratic proc-

esses. Lack of confidence in the fairness of the Secre-

tary’s decision not to bring suit can totally destroy

the member’s desire to use these processes. An exam-

ination of the nature of contested elections will quickly

make plain why this is so.

Union election contests, when they occur, are often

bitter struggles,’ particularly in those cases which re-

sult in a complaint being filed with the Secretary. Dis-

satisfied union members do not lightly challenge in-

cumbent officers, for the incumbents have the advan-

tage of control of the union’s administrative structure,

its official publications, and often its election machin-

ery.”° The challengers must build a competing organi-

* The bitterness of contested elections and the obstacles confront-

ing challengers to incumbent offices in the Steelworkers Union is

delineated in Herling, Right To CHALLENGE (1972). See also Ass’n

for Union Democracy, Union Democracy IN Review, 1959-72

(1974); F. Cormier and W. Eaton, ReurHer (1970) Ch. 17-18;

R. James & E. James, Horra AND THE TEAMSTERS: A STUDY OF

Union Power (1965). “

10S. Lipset, M. Trow, J. Coleman, Union Democracy (1956) Ch.

1; D. Bok and J. Dunop, LaBor AND THE AMERICAN COMMUNITY

(1970) 73, 84-5; Summers, Judicial Regulation of Union Elections,

70 Yale L.J. 1221, 1226-30 (1961).

x aR

Nt EN th BELO ate SEER GEE

Sein Os te

Te ee

19

zation, collect money for campaign literature and other

expenditures, and make themselves known to the other

members. The challengers and their supporters may

be subject to reprisals ranging from loss of jobs to

physical violence. Union Elections And The LMRDA:

Thirteen Years of Use And Abuse, 81 Yale L.J. 407,

444-8 (1972). Their willingness to undertake these

burdens and risks depends in substantial part on their

confidence that the rights guaranteed by Title IV will

be protected and that they will have a fair and demo-

cratic election. Even though defeated, the challengers

may hold together their organization with the hopes

of doing better in future elections, particularly if their

experience gives them confidence that future elections

will be fair and democratic.

After an election, defeated candidates are often re-

luctant to file complaints with the Secretary, even

though they believe that their defeat was the result

of violations of Title IV. Union members resent an-

other member’s resorting to an outside tribunal to

resolve internal problems." By filing a complaint he

may alienate supporters and invite attacks by those

declared elected, thereby reducing his effectiveness in

the union’s political process. He will appeal to the

Secretary only if the prospect of obtaining help out-

weighs these political risks.”

11 Union Etections, supra, p. 483, n. 335; Summers, Disciplinary

Powers of Unions, 3 Ind. & Lab. Rel. Rev. 483, 503 (1950) ; NLRB

v. Industrial Union of Marine and Shipbuilding Workers, 391 U.S.

418.

12The number of frivolous complaints are relatively. small. In

two-thirds of all complaint cases the Department finds that it has

_ jurisdiction and that violations have occurred, and in more than

forty percent of the cases finds that those violations may have af-

fected the outcome of the election. U. S. Dept. or Lasor, UNION

20

If the Secretary obtains voluntary compliance with

a supervised rerun,” or brings suit to set aside the

election, the challenger will recoup much or all the

political cost of filing the complaint. The action of the

Secretary legitimizes his contentions that democratic

rights have been violated and enables him to hold his

support among the membership. If the case is brought

to trial, the nature and scale of violations will be re-

vealed, responsibility for those violations will be estab-

lished, and their repetition will be discouraged. Even

though the suit does not succeed, the voting strength

of the candidates will be more reliably measured and

continued engagement in the political process encour-

aged.

If the Secretary refuses to bring suit, the political

future of the challenger is inevitably damaged, but if

the Secretary’s refusal is seen by the union members

as justified, it will not discourage them from future

participation in the union’s political life, or deter

them from running for office or supporting opposition

candidates when they believe they can win in a fair

and democratic election.

However, if union members believe that the Secre-

tary’s refusal to sue is not justified, then the political

Evection Cases UNDER THE LMRDA, 1966-70, p. 6. Many com-

plaints are dismissed on jurisdictional grounds so the number in

which there is a finding that no violations have occurred is slightly

more than two percent. Union Elections and the LMRDA: Thirteen

Years of Use and Abuse, 81 Yale L.J. 407, 571 (1972). :

** The Secretary may use the threat of a suit to induce voluntary

union compliance and correction. Settlements take the form of For-

mal Determinations which normally entail a voluntary rerun of

the election under the supervision of the Labor Department. Union

Elections, supra, p. 492-6. .

21

process is permanently blighted. Struggles to unseat

incumbent officers are seen as quixotic when there is

no guarantee of a fair election; and criticism of union

officers loses its purpose when a majority cannot re-

move them. Appealing to the Secretary for protection

of democratic rights is seen as carrying more risks

than prospects of protection.

The critical requirement is confidence in the Secre-

tary’s decision. It is not enough that his decision be

justified, it must be seen as being justified. Confidence

in the Secretary’s decision is undermined by three

factors:

First, the decision whether to sue is made in a meet-

ing in which the complainant cannot participate and

is based on investigative reports which he has not seen

and which he cannot supplement. He does not know

the considerations weighed nor have a voice in the

decision.

Second, the complainant is never more than cursorily

informed of the reason for the decision not to sue. At

most, the letter notifying him of the decision will list

the violations found with the conclusory statement

that ‘‘there is not probable cause to believe that the

violations found may have affected the election out-

come.’’ But half of the letters are not even this reveal-

ing, merely stating that the case “‘is not suitable for

litigation,’’ without indicating what, if any, violations

%* The decision is made jointly by the Solicitor of Labor and the

Assistant Secretary of Labor-Management Relations based on rec-

ommendations submitted by area and regional offices. Union Elec-

tions, supra, p. 497.

22

were found or what made the ease ‘‘not suitable for

litigation.”’

Third, there is a common perception among com-

plainants that political influence is brought to bear to

forestall litigation, and that there is a systematic bias

in favor of incumbents because the Department de-

pends upon good relations with union officials to. deal

with them on other matters.”* This perception is en-

hanced by the belief that the two officials who make the

decision, the Solicitor of Labor and ‘the Assistant Sec-

retary for Labor-Management Relations are particu-

larly susceptible to influence by union officials.”

The lack of confidence growing from these three

factors is confirmed and hardened by the Secretary’s

adamant insistence that his decision not to sue is im-

mune from judicial scrutiny. From the perspective of

union members, why should the Secretary be unwilling

to justify his decision if he has good reasons for that

decisions? Why does he resist an inquiry by the court

into whether his decisions is arbitrary or not in ac-

cordance with law? What is it that he is afraid to

disclose ? What is it that he is afraid he cannot justify ?

Again from the perspective of union members, how

can an official be relied upon to protect their rights

15 Union Elections, supra, p. 797-8. The number of letters using

the ‘‘affected the outcome’’ formula and the number using the ‘‘not

suitable for litigation’’ formula are shown in Appendix B, p. 571.

16 Union Elections, supra, p. 499-500. This perception is shared

by both attorneys for Title IV complainants and union counsel,

and by some regional staff members of the Department of Labor.

Id. n. 418.

17D. Bok and J. Dunlop, LABor aND THE AMERICAN COMMUNITY,

406-8 (1970).

pad:

23

when he insists that he is accountable to no one when

he refuses to protect those rights?

‘To fulfill the purposes of Title IV of encouraging

the exercise of democratic rights, those who appeal to

the Secretary to protect those rights must have con-

fidence in his decisions. It is not enough that the Sec-

retary’s decisions not to sue can be justified; there

must be confidence in union members that they are

justified. Confidence in his decisions can be established

only if they are subject to judicial scrutiny, and union

members can obtain from a court assurance that his

refusal to proceed on their behalf is not arbitrary and

is in accordance with law.

24

CONCLUSION

The simple question presented here is whether the

Secretary, charged by Congress with protecting basic

democratic rights of union members and guaranteeing

to union members and the public fair and democratic

elections, has unreviewable discretion to refuse to pro-

tect those rights. The Secretary asserts he has this un-

controlled power; that he can deny union members

enforcement of their statutory rights and be answer-

able in no court of law. Our history demonstrates that

no official, high or petty, can be safely entrusted with

such power, and the path of the law has been toward

.».« Making officials accountable for their actions. Con-

gress, in making the Secretary’s suit the exclusive

remedy for protecting Title IV rights, did not act

contrary to that wisdom and the course of the law.

Congress expected the courts to assure union members

and the public that the Secretary in refusing to sue

acted reasonably and not arbitrarily, that he acted

within the law and not beyond the law. =

Respectfully submitted,

CuaRIcE R. FELDMAN

BECKER, CHANNELL, BECKER &

FELDMAN

1819 H St., N.W., Suite 950

Washington, D.C. 20006

Attorney for Amicus

Of Counsel:

CiypE W. SuMMERS

Watt & Hicu SrTreer

New Haven, Conn.