# Amicus Curiae Brief — Dunlop v. Bachowski

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386414_0422%3A06

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1975
- **Citation:** 421 U.S. 560

## Text

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.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386414_0422%3A06. Public record. Not legal advice.