American Federation of Musicians of the United States and Canada v. Wittstein

PETITIONER:American Federation of Musicians of the United States and Canada
RESPONDENT:Wittstein
LOCATION:United States Post Office and Courthouse

DOCKET NO.: 27
DECIDED BY: Warren Court (1962-1965)
LOWER COURT: United States Court of Appeals for the Second Circuit

CITATION: 379 US 171 (1964)
ARGUED: Nov 16, 1964
DECIDED: Dec 07, 1964

Facts of the case

Question

Audio Transcription for Oral Argument – November 16, 1964 in American Federation of Musicians of the United States and Canada v. Wittstein

You may please the Court Mr. Kaiser.

Henry Kaiser:

This case is here on certiorari to the United States Court of Appeals for the Second Circuit.

The issue presented is one of interpreting and applying Section 101 (a) (3) (b) (i) of the Landrum-Griffin Act and we’ve set forth the statute on page 58 and page 59 of the blue brief, our brief.

The critical language provides that unions may not at conventions raise dues or other membership obligations except and I quote, “by majority vote of the delegates voting at a regular convention”.

Specifically, the question before Your Honors is whether as the court below held that language requires that the majority could be determined by assigning to each delegate one vote or whether as we contend and as the Solicitor General agrees that majority may also be determined by waiting each delegate’s vote in a manner that reflects the strength of his constituency.

The pertinent facts upon which this issue arises may be briefly stated.

At its 1963 convention, petitioner, American Federation of Musicians raised the dues and the initiation fees of its some 280,000 members.

These members belong to 675 affiliated locals ranging in size from the membership of petitioner local 802, a membership of some 28,000 down to the local in Waupaca, Wisconsin with a membership of 20.

These members are represented at annual conventions of the federation, the highest governing and legislative body lf the union, by delegates who are elected each year by a secret ballot.

Article 5 of the federation’s constitution which is set forth, I believe on page 3 of our brief, footnote 2, governs the number of delegates available to each local as well as the voting procedures at the convention.

That Article provides that no local or that every local no matter how small is entitled to at least one delegate and that no local no matter how large is entitled to more than three.

Thus under the laws of the federation, a local like that of Oshkosh with 276 members is entitled to the same three delegates as the New York local with its 28,000 members.

At the 1963 convention, the federation acted pursuant to the roll call provision of Article 5 by which on proper call or proper demand made by five locals, a roll call is taken and each delegate is authorized to vote the full number of the members from the local he comes from.

On that count, the resolution raising the dues and initiation fees was carried by some 44,000 votes.

We concede that there was not a majority of the actual delegates present voting in favor of the resolution.

Two separate suits were filed one against each, while there were some — I forgot the precise number I think 110,076 delegates physically present.

There was not a majority of those individual delegates in support of the resolution.

(Inaudible)

Henry Kaiser:

Without the weighted vote.

(Inaudible)

Potter Stewart:

But its — it’s that fact really that raises the issue in this case.

Henry Kaiser:

Precisely, yes.

Potter Stewart:

That there had been a majority, those present —

Henry Kaiser:

There’d be no case.

Potter Stewart:

There’d be no case.

Henry Kaiser:

That is right sir.

(Inaudible)

William J. Brennan, Jr.:

How many actual delegates represented this local of 28,000, three or?

Henry Kaiser:

Three, well actually at that convention there were only two who are present as delegates.

William J. Brennan, Jr.:

But those two cast the 28,000 votes, is that it?

Henry Kaiser:

Those two cast the 28,000 votes.

William J. Brennan, Jr.:

(Inaudible)

Henry Kaiser:

Yes sir.

William J. Brennan, Jr.:

What happens if they divide?

Henry Kaiser:

They split the votes.

William J. Brennan, Jr.:

I see.

Henry Kaiser:

Now —

(Inaudible)

William J. Brennan, Jr.:

I beg your pardon sir.

Hugo L. Black:

How long has that been (Inaudible)?

I want to make clear Your Honor, this was not a question of election of officers.

Henry Kaiser:

This was a question of raising dues.We have a different system for electing officer.

Hugo L. Black:

(Inaudible)

Henry Kaiser:

That has been on the books, if the Court please, at least 40 years.

Hugo L. Black:

How long has it voting (Inaudible)?

Henry Kaiser:

As far as I’m aware — so far as I’m aware, this is the first time that the provision, the roll call provision was invoked at a convention of the federation.

Hugo L. Black:

(Inaudible)

Henry Kaiser:

There are many unions that vote that way.

I’ll get to that but I can state right now that the 68 of the 131 affiliates of the AFL-CIO have weighted-voting of some kind.

19 of them have the precise type that we have and the remainder different gradations of weighting the votes of delegates.

The suits were brought, as I said against each petitioner to enjoin the enforcement of those increased dues.

On proper motion, the suits were consolidated and the District Court granted the injunctions requested.

The Court said he was forced to that conclusion because in his view, the procedure of the convention failed to comply with what he called the mandatory provisions of the statute I quoted.

On appeal, the Circuit Court affirmed by a two to one vote.

In announcing its decision, the majority acknowledged that the procedure followed by the convention was the most democratic one.

The majority recognized that it was a widespread practice among national unions and it also agreed that there were no abuses found by the Congress to have flourished onto what it called aegis of the weighted-voting system.

Nevertheless, it thought the language so compellingly clear as to render it unable to perceive any meaning to that language other than one delegate, one vote.

Now if the Court please, the effect of that decision below as I’ve already indicated, was to outlaw the practices of over a majority of the national affiliates of the AFL-CIO.

Even more important if the Court please, if you think upon it as a realistic and practical matter, the effect of that decision is to impose upon all unions by legislative mandate, a permanent condition of an equal representation that convention voting for dues increases.

Now did the Congress did so — do so and could it constitutionally do so?

Henry Kaiser:

We say no to both questions.

We say that the language does not compel the assignment to Congress of so wanting an objective and we say further that that interpretation flouts the clear legislative history of that Section is at war with other provisions of the same statute, completely ignores the universally conceded policy of the statute.

And if we are wrong in all of those, and we doubt that error, we say it was beyond the constitutional power of the Congress to do so.

Now —

(Inaudible)

Henry Kaiser:

I should like to reserve that question but its — I will say succinctly now that we think at the price working men and women of the right to form their own organizations and that that is a deprivation of their freedom of assembly set forth in the First Amendment.

Now, if the Court please, a brief analysis of the statutory text what I believe suffice to show that interpretation given it by the court below was not the only possible interpretation.

What the Court did was in effect hold that the word vote in the phrase majority vote of the delegates voting, modifies — I’m sorry, the word majority, modifies both the word vote and the word delegates.

Now it seems perfectly clear that loading the word majority with that dual function eliminates any function for the word vote.

A congressional design to have a majority of the delegates voting determine the issue would’ve been more precisely and lucidly communicated by simply saying a majority of the delegates voting.

On the other hand, our interpretation gives full meaning to each word utilized by the Congress.

The Congress declared that only delegates at a convention may act on this issue.

And the Congress said that when they act, when they cast their ballots, a majority of those ballots must be in favor of raising dues in order to lawfully effectuate the increase.

Whether a delegate passed one vote or more, it is still a vote of the delegates.

And whether as in most instances he cast more than one vote or as on some, he cast one, there is still the necessity of a majority and that can be ascertained.

No one has suggested and the statute is perfectly clear on this fact, that unions may not devise their own representational formula.

That is to say, they could fix the number of delegates from any local that they think wise.

Now, we say that Congress left to the unions the power to decide the weight of the vote no less than they left to the unions the power to decide how many delegates will be present.

And our underlying thesis if the Court please, is that the Congress fully sensible to the basic democratic values inherent and the ancient principle of noninterference with the internal affairs of nonprofit association regulated those internal affairs most reluctantly and only to the extent that it found undemocratic practices that had been clearly established as having been abused.

Now the legislative history of this Section shows completely, we think, the legitimacy of our interpretation.

The Senate passed its bill, S. 155 in April of 1959.

That bill made it clear that any kind of a majority would suffice to raise dues.

That bill however did not provide for referendum votes to raise dues.

They did not provide for the executive board or similar governing body of a union to raise dues, and that bill also regulated decreases in dues.

Upon its passage, S. 155 became the focal point of consideration by the Congress.

And many witnesses appeared before the Congress including most notably the president of the AFL-CIO, President George Meany.

Mr. Meany appeared before a joint committee, a subcommittee of the House, and criticized the bill as being too restrictive.

He pointed out that the Senate bill did not provide for referendum and quickly added that in his view that was an unintended omission.

That in point of fact he thought and I think I’d quote him, “That the Congress was prepared to permit any changes in dues which by any method which unions generally employ except the method of a change by the executive board or similar body”.

Now we say to you, Your Honors, and he also pointed out the excess of trying to regulate a decrease in dues.

Henry Kaiser:

What the House did following the Meany testimony shows conclusively that the Congress intended to enlarge upon the original Senate bill which permitted any majority and to preserve all of the methods that unions had historically used to raise dues.

Following his testimony, three major bills were presented, the Committee Bill, the Landrum-Griffin Bill which was supported by — by management and the Shelly Bill which was supported by labor.

Now all of these bills proposed precisely the language now present in the statute.

All of them put in to that statute the right to raise dues by referendum.

All of them eliminated the regulation of a decrease in dues, and most significantly all of them granted President Meany’s request to allow a raise in dues by the executive board or similar governing body.

We think it unbelievable that the Congress was thus so completely respond to President Meany’s request and suggestions while at the same time, sub silentio, outlawing the practices of over a majority of President Meany’s constituents.

If the Court please, we’re here on summary docket and my time runs short.

I want to preserve as much time as possible for rebuttal.

I suggest to you that the inconsistency between the interpretation below and the concern that Congress showed for equal rights of members in the very same title in Section 101 (a) (1).

The inconsistency between that interpretation and the very — I’m sorry, and the universally conceded right of members to elect officers by weighted-voting, in the face of the fact that the election of officers was the major thrust of internal regulation of unions, was the major subject of abuses found by the McClellan Committee is a subject of elaborate regulation in Title 4 of the Act, was the subject of similar regulation in the pretest of Kennedy-Ives bill.

It was the articulated concern of President Eisenhower, of Secretary of Labor Mitchell.

They all spoke of elections of officers and nobody virtually mentioned this problem of dues until the last moment.

I say the inconsistency between this interpretation of the court below and what the Congress did on a matter that was clearly the subject of abuse.

And finally, the clear repugnance of that interpretation with the declared and obvious democratic ideals of the statute, we leave these arguments to our brief, but we think they all show most compellingly that the decision below is erroneous.

One final word —

Hugo L. Black:

Do you mind if I ask one question, (Inaudible)?

Does the record hold (Inaudible)?

Henry Kaiser:

I’m sorry I do not —

Hugo L. Black:

(Inaudible)

Henry Kaiser:

Yes.

Hugo L. Black:

(Inaudible)

Henry Kaiser:

There was virtually no discussion Your Honor.

Hugo L. Black:

Was it mentioned?

Henry Kaiser:

It was mentioned when Senator McClellan introduced his first bill, S. 1137, which incidentally provided that the only method that unions can use at conventions was that of voting the membership of the constituents.

Senator McClellan made one observation and his bill also regulated the size of the initiation fee.

He said that he was against high initiation fees.

Now, curiously and persuasively enough, the only abuses found in this entire area of union action that were reported by the Senate McClellan Investigating Committee stemmed from practices precisely which can flourish on the interpretation below and cannot exist under the method used by the federation.

These were instances of creating ghost locals where you have a delegate with a vote but no membership.

(Inaudible)

Henry Kaiser:

That is right.

Henry Kaiser:

I might add, if the Court please, that in April of this year when you announce your decision in Labor Board versus Fruit Packers, you had the statute which concededly under its literal language would’ve required the finding of a violation of the Act by product picket, consumer picket.

Nevertheless, you thought it was “specially significant” that none of the sponsors of the bill had indicated that such picketing was an abuse.

And you relied elaborately on the fact that the Congress had not in the past regulated peaceful picketing except in insolated instances of demonstrated abuse.

Now let me say to Your Honors that I know of no form or regulation of the internal affairs of unions by the Congress of the United States or indeed by any other legislative body.

This was, I repeat, done most reluctantly.

There was no demonstration of abuses in this whole area unless demonstration of any abuse with respect to weighted-voting.

And I should like to preserve the rest of my time for rebuttal.

Thank you.

Godfrey P. Schmidt:

If Your Honors please, before I address myself to the legal questions here and to an attempt that briefly refuting the arguments made by my adversary.

I should like to — with the Court’s indulgence, refer to the specific fact background which serves as the point of departure for this entire controversy.

This union had for many years imposed upon orchestra leader employers a certain tax or exaction known on the one hand as the 10% traveling surcharge and on the second place as the local tax.

And they required orchestra leader employers to pay this tax by — for — on behalf of the sidemen who were the employees of these orchestras.

This constituted the basis for previous litigation which came in part all the way to this Court and this Court refused certiorari, agreed — the Court of Appeals in the Second Circuit agreeing that these were unlawful exactions imposed upon my clients under Article — Section 302 of the Taft-Hartley Act.

Now the union here was put on notice as early as 1960 by the filing of the complaint and in 1961, by the Court of Appeals decision and again in 1962 that their bylaws needed revision because they were not inline with the Section 302.

And they approached the 66th convention in June of 1963 without so much as publicizing to anyone to any delegate or to any local the method by which they attempted to adjust their bylaws to Section 302.

And as a matter of fact Your Honors the actual intra-union legislation which they used for the purpose of making that adjustment so as to legalize their own constitution was put on the desks of the delegates six hours before the midnight session at which it was passed, the voting begun at ten minutes past midnight.

Now, I submit that whatever and that — if I have the Court’s indulgence to refer a portion of the record for one moment.

I would like to refer to page 115 (a) Your Honors.

This is the only portion of the verbatim transcript of this convention which are in behalf of my clients was able to get.

I asked for the full transcript and it was denied me.

And I refer to the middle of page 115, where a delegate who is not named stands up apparently to a microphone number 3 and says, “Mr. Chairman, it seems to me” and then he refers to the microphone he’s using, microphone 3, “Mr. Chairman, it seems to me that a matter of such great importance is this to be placed in a voice vote is ridiculous because it’s going to be a matter of who out yells who.

I think we should set the machinery in motion tonight or tomorrow morning for a ballot vote.

This will give the only real reaction.”

Now it appears from other portions of the record that there were two previous voice votes, and my complaint here alleges that both of those voice votes were against the resolution.

But let that out of the picture for a moment and proceed.

Mr. Kennen (ph), the president of the union who is also a lawyer immediately says, “Well, a roll call vote is what you are referring to.

Any ten delegates or five locals may ask for a roll call vote if you are dissatisfied with a voice vote.”

Now I submit that right there was a downright misrepresentation of what valid vote means.Valid voting is the kind of voting as Your Honors know that is most commonly used in unions.

This voice vote, I mean this roll call vote is not like the roll call vote used in Congress nor is it like the roll call vote justified by Robert’s Rules of Order.

This is a peculiar situation which enables the delegates to cast the whole vote of their membership, and incidentally Your Honors, there is nothing in the bylaws to warrant the splitting of votes, as they were split here, and at least 26,000 votes were duplicate votes because of the fact that many orchestra leaders do and many orchestra members belong to 1, 2, 3 and as much as 7.

Godfrey P. Schmidt:

I think there’s one that belongs to seven locals of this federation.

So that the same person’s vote was sometimes cast one time one way and one time another way.

Now, I would not be here Your Honor, I would never have started this action if there had been any approach to this democracy or to this representative character that is so often flaunted in my adversary’s brief.

But on analysis and as a further reading of this shows there wasn’t a scintilla of representative or democratic regulation or government here, because in the first place, the people at home, in the home locals had never heard of recommendation number 11 before the convention.

In ordinary cases and here I differ with the Solicitor General and the AFL-CIO brief, they interpolate the story which to the effect that there are 19 other unions that use this peculiar roll call vote.

Well I submit, there’s no evidence of that in the record.

I didn’t have a chance to cross-examine whether those other systems of roll call vote are just as much out of use as they were in the case of this union this being the first time it was used.

I didn’t have a chance to find out whether or not prior to the use of this system of roll call voting the unions at home had had a chance to vote on instructions to their delegates.

You see, there would’ve been some pretense I think, and not pretense they would’ve been some actuality of genuine representative government or democratic procedure if this recommendation number 11 had first been disseminated to the locals so that the locals at least had an opportunity to instruct their delegates.

But they knew nothing whatever about it.

Indeed, the delegates themselves did not know about it until six hours before the election.

And I submit that that makes a great difference here.

Now, I agree that —

Potter Stewart:

Are any of these matters embraced in the questions which were presented on the petition for a writ of certiorari which was granted?

Godfrey P. Schmidt:

Yes Your Honor.

I —

Potter Stewart:

I just said that the —

Godfrey P. Schmidt:

My opposition to the granting of the petition for certiorari stressed these matters.

Potter Stewart:

Well, I — in the petition there are two questions presented.

One is whether the statute prevents an international union from raising membership dues by a convention vote of delegates based upon the number of members they represent.

And the second one is, if so, is that unconstitutional in the —

Godfrey P. Schmidt:

Is Your Honor reading from the — my brief?

Potter Stewart:

No.

From the petition for writ —

Godfrey P. Schmidt:

Well, I —

Potter Stewart:

— of certiorari which we’ve granted.

Godfrey P. Schmidt:

I reframed the questions in a different way because I did not agree with that statement of the questions and for that reason I say — I gave the answer that I did give to Your Honor.

Now, I might —

Byron R. White:

Well, was the decision below based in any — to any part expressly on the matters you mentioned?

Godfrey P. Schmidt:

On the — what Your Honor?

Byron R. White:

Was the decision below based on any part expressly on the matters that you mentioned?

Godfrey P. Schmidt:

No, I do not think the decision below —

Byron R. White:

Then what about the —

Godfrey P. Schmidt:

I think the decision below was based purely on a question of interpreting the statute, but —

Byron R. White:

Isn’t (Inaudible) and aren’t those the questions — isn’t that the question that was presented here in the petition for certiorari?

Godfrey P. Schmidt:

I don’t think so Your Honor, because I don’t think that an academic question insulated from the facts in which the issue is rooted can be presented to Your Honors.

I think that any discussion of law must be based upon the facts peculiar to the case, and this is the reason why I framed a counterstatement of facts.

And this is the reason why in my counterstatement of facts I went into these things.

And if — with your indulgence, I’d like to pursue for one moment further this peculiar statement of facts as contained not in any argument of mine but in their own verbatim minutes of this convention.

Again I refer to page 115, after having misinterpreted the unknown delegates request for a ballot vote as meaning this most unusual roll call vote immediately, right on the spot the chair recognized Mr. Merle Schneider, local 680 — 368 of Reno, Nevada and he promptly says, “I call for a roll call vote, I have local 2s –“ and he mentions six locals, or five or six locals.

Now it could not possibly have happened that quickly.

He couldn’t have gotten around in that instant between the request of the delegate and the misinterpretation of the delegate’s remark, this was prearranged.

And this prearrangement meant that they were railroading this recommendation number 11 through the convention without having — given any delegates prior to the convention any notice whatever of this.

And I say this is the real vice.

Now let me address myself, it — that’s the real vice in the fact, now let me address myself very briefly to the law.

I will agree that the statute as its written is not specific on this point.

I will also agree that the legislative history recites no case directly in point.

I was personally involved in some of the cases that went through the McClellan Committee, the Paper Local case, the rigged election of the Harper case.

Those were two cases in which I was personally involved and I know that one of the reasons that motivated Congress in passing the McClellan Act was to ensure a little bit more genuine democracy or a representative procedure that had prevailed before.

And I submit that that legislative purpose carries over to particular portions of the statute such as we have here.

Now, I had in my brief on page 22 taken first of all after I had discussed the purpose the context in which this particular language is found.

And at the bottom of page 22, I refer to the contextual construction of the statute.

And there I found that five times in that particular Section, that is 101 (a) (3) of the Landrum-Griffin Act, the word — the words majority vote were used five times.

And in four of those times there can be no question whatever of what the Congress meant one person, one vote, and it would seem to me that this is the normal presumption in these matters because I don’t know whether these various other locals that are referred to or other unions affiliated with the A.F. OF M. had have additional provisions which would guarantee opportunity to the home folks in the various locals across the country to be acquainted with what is going forward.

For example, I noticed that my learned adversary referred to Senator McClellan’s bill 116 — 1137, which if the first paragraph of the relevant portion is read would seem to signify that he was giving carte blanche to a union to weigh votes as he wanted — as it wanted.

But he had — he did not allow that paragraph to stand alone, as I point out on page — the bottom of page 51 of my brief, he had a section underneath called notices of meetings or conventions which guaranteed that a convention camarilla couldn’t possibly control the convention without first giving notice to everybody in the field.

Now, I ask Your Honors to consider for a moment the consequences of the kind of rule that is being advocated by my learned adversary.

A few large locals having the largest number of members would be cultivated by the incumbents in office.

They could strike up alliances and they could run any convention.

And as a matter of fact this peculiar convention they permitted 15 men only to debate this question, to make speeches on this question at that evening session that passed it.

Godfrey P. Schmidt:

And it is of strange coincidence Your Honors that of the 15 men who were permitted to discuss this convent — this important bill, considered by some of the delegates as appears from the record, as the most important question ever to confront an A.F. of M. convention.

Of those 15 Your Honor, nine were handpicked members of committees appointed by the president himself.

The very day before the convention, the president himself as I point out in my brief, addressed the Canadian delegates and pointed out that the situation that had been obtaining up to that kind where they had been imposing the 10% traveling surcharge and the 1.5% local tax was an immoral situation.

Those — that was his adjective, immoral, because it placed the burden of support of the union upon those members only who were active.

Here was a local in New York of 30,000 members, and approximately 3000 of the 30,000 were really active professional musicians and because they were taxed on all of their income and they made most of the income they bore the burden, and the same way traveling orchestras throughout the country.

They’re the most active today and they bore the burden.

And I say Your Honor that for that — for these reasons this procedure can’t be considered in vacuo, it can’t be considered as abstracted from its roots in the fact situation.

I know of no legislative test of construction except the old ones and this Court has had many occasions to repeat the various tests where there is not specific and mathematically precise language, where as Seneca says in one of its epistulae morales, “Nothing is too often repeated if that is not sufficiently learned.”

This, we go first if we can’t it directly from a statute we go to the purpose of the statute.

And then if we can’t get it there, we go to the purpose of the particular statute — the particular section, the contextual construction then the circumstances surrounding it.

Whether or not the interpretation I am urging leads to absurd results.

It would lead to absurd results Your Honor if you adopted a ratio of voting such as Mr. — Judge Marshall below suggested.

He said in his dissenting opinions that my interpretation of the statute would mean that a union with 280,000 members would have to have a convention of 14,000 delegates that have cost at $5 million.

Well of course that’s not so, unless you are foolish enough to — as a union leader, to ask for a representation at the ratio of one delegate to every 20 members.

But if you take the normal ratio of one delegate to every 250 or 300, you won’t have an excessive number.

And I say that my interpretation does not lead to any absurd results.

And finally I say Your Honor that when Mr. Justice — when Mr. Meany was asked about his opinion on this matter, he pointed out both before the congressional committee and in the affidavit submitted in this record that the usual method of representation is the kind that’s used in the House of Representatives that is to say, you apportion the number of delegates according to the number they represent.

A large union would have many delegates.

A small union would have only one.

And I think that is the only way to do it because it seems to me that on theory and on acceptation of the standards of representative government and democracy that we are familiar with in the Anglo-Saxon tradition.

It’s the height of absurdity to say that there was democratic representation here, because these men had to make up their minds ten minutes after midnight right then and there how they were going to vote and how they were going to split their votes.

And some of the — one vote that was split, as appears from the proceedings was split on this strange ratio, I think it was Local 205.

They had three delegates, 541 members and they cast one vote one way and 540 votes the other way.

I don’t understand how this can be equated to anything that resembles a majority vote.

Majority vote to me, and I think in the tradition of the west means, (a) that the majority knows something about it.

That the majority is knowledgeable, that the majority is informed that there be some kind of communication or rapport between the representatives and the constituency.

There was no such thing here.

And I say on that ground and for the other grounds that I have alleged in my brief, the judgment below should be affirmed.

(Inaudible)

Godfrey P. Schmidt:

On the number of delegates?

(Inaudible)

Godfrey P. Schmidt:

The largest union?

Yes, (Inaudible)

Godfrey P. Schmidt:

Well, I — the way I would look at it Your Honor is that Congress intended to approve what is most commonly used in unions today, namely a large num — a large union like Local 802 in New York which has 28 to 30,000 members.

I’ve heard both numbers quoted, would have more delegates on ratio we’ll say of 250 or 300 to one.

Whereas small delegates — small unions would have only one delegate.

(Inaudible)

Godfrey P. Schmidt:

Well it would depend, Your Honor, on the ratio that would be used, (Voice Overlap) —

Byron R. White:

Well, Mr. Schmidt, there were only three for the very largest union in this case, wasn’t it?

Godfrey P. Schmidt:

That’s right, there were only three and —

Byron R. White:

What was the largest local?

How many members?

Godfrey P. Schmidt:

The local — based — they cast 28 —

Byron R. White:

28,000?

Godfrey P. Schmidt:

— thousand, I’ll tell you exactly Your Honor —

Byron R. White:

And that union had only — that local had only three delegates at this convention, is that right?

Godfrey P. Schmidt:

It had two, Your Honor, one was ill.

Byron R. White:

I know but there are three authorized.

Godfrey P. Schmidt:

Three authorized.

Byron R. White:

And that’s the maximum that was authorized under con —

Godfrey P. Schmidt:

That’s right Your Honor.

Byron R. White:

So you wouldn’t attempt to even — to uphold the validity of this method of apportioning delegates.

Godfrey P. Schmidt:

No.

I think that method is wholly wrong too.

Byron R. White:

There should be more.

Godfrey P. Schmidt:

I think there should be more to be democratic because it seems to me that debate means that you get additional talent, because the whole idea of representation is not that mere numbers count but rather that it is true on an average that what a greater number of people decide is more apt to be right than what a smaller number decides.

Now that’s not always true as historical generalization, but I think that this is what Congress had in mind when they spoke of a one vote — when they spoke in language that to me means one person, one vote.

(Inaudible)

Godfrey P. Schmidt:

20 was it?

20.

(Inaudible)

Godfrey P. Schmidt:

Oh no, if they did that they would have 14,000 delegates.

It seems to me that there’s another thing that shockingly —

(Inaudible)

Godfrey P. Schmidt:

Well, it seems to me that what they do here — what they should do here is what they’ve done in other unions.

They say every union — every local shall have at least one vote no matter what its size up to — we’ll say, 150.

After 150 every add — union shall have an additional delegate for every 250 or 300 or something like that.

This is commonly done in unions, and I might say that one of the things that’s wrong with this situation is to have a scattering of so many small unions over the country and such a very large one, stupendously large, in New York City.

It seems to me that the same procedure is the procedure followed by most unions where they have only 20.

They won’t issue a charter unless they got more.

Most unions will require that there’ll be a larger membership than merely 20 before a charter is issued.

(Inaudible)

Godfrey P. Schmidt:

Well, I certainly do.

(Inaudible)

Godfrey P. Schmidt:

Oh, I think more — that would’ve been outrageously too much.

(Inaudible)

Godfrey P. Schmidt:

I have suggested in my brief that a fair proportion would be as follows.

Well the first 150 or less, they should have one delegate.

After that they should have additional delegates for each 250 to 300 members in a union.

And now that would take care of the situation in a manner in which it is taken cared of in most unions that I’m familiar with.

(Inaudible)

Godfrey P. Schmidt:

Well I don’t think the Court should have to work that out.

I think that the interpretation made by the court below is an interpretation of what Congress worked out.

And Congress said that it should be one vote, one delegate as I read the statute.

Now —

(Inaudible)

Godfrey P. Schmidt:

One vote, one delegate for the — in other words each delegate should have one vote and one vote only.

And if they want to take care of this —

(Inaudible)

Godfrey P. Schmidt:

No, Congress did not.

Godfrey P. Schmidt:

No, Congress did not, but I think —

(Inaudible)

Godfrey P. Schmidt:

No, they did not in my judgment.

(Inaudible)

Godfrey P. Schmidt:

I beg your pardon?

Do you not read the (Inaudible) —

Godfrey P. Schmidt:

I do not read the language as saying any specific ratio, yes Your Honor.

Byron R. White:

Well, do you say it’d be ridiculous to suggest the big union ought to be represented by enough delegates to — by one delegate for every 20 members?

Godfrey P. Schmidt:

Yes, I think that would be (Voice Overlap) —

Byron R. White:

Does that fit on practical ground?

Godfrey P. Schmidt:

I think that that’s impractical (Voice Overlap) —

Byron R. White:

But that’s the only — but it’s just — this is too expensive and it’s impractical.

Godfrey P. Schmidt:

Yes and I think it violates common sense Your Honor, and it violates the common usage in unions today.

Byron R. White:

But it hasn’t got anything to do with the — with how much power to use the union.

Godfrey P. Schmidt:

No.

I must say that so far as the constitutional question is —

Byron R. White:

I mean, if it were practical to have one delegate there for every 20 members that would be of reasonable matter, wouldn’t it?

Godfrey P. Schmidt:

No, I still don’t think so Your Honor because I think that I agree with that federalist, which I quoted that when you tend to have deliberative bodies too big, you introduce the element of demagogy and other undesirable consequences.

You don’t make (Inaudible)?

Godfrey P. Schmidt:

Oh, I didn’t say that Your Honor.

Byron R. White:

But it can also be too small, I take it?

Godfrey P. Schmidt:

Oh, I think it can, it’d be too small and too big.

Thank you Your Honor.

Henry Kaiser:

If the Court please, we do not think it necessary to apologize for the fact that there are only 20 musicians in Waupaca, Wisconsin and that we extend to them the benefits of unionism.

Nor do we quite see the relevance of the that to anything in this case.

In reply to a question put by Mr. Justice White as to whether the court below’s decision was premised on the so-called facts, counsel was honest enough to say that it did not.

But in his brief, on at least four different occasions, he made statements like this and I quote from page 21 in the brief.

The decision below, he says, “Only forbids the use of roll call votes, when in the circumstances of this case, dues increases are involved.”

Now that’s a grotesque distortion of what the opinion below held.

Judge Medina made an elaborate but obviously futile effort to clear the air so as to lay aside what he properly called, “confusing irrelevancies and diversions.”

Henry Kaiser:

If the Court please, nothing could be clearer but that the only issue discussed below and decided below both by the majority and the minority was the applicability of the plain meaning rule.

Now, respondent’s total failure, indeed he concedes here, that the language is not quite so plain.

Instead he devotes almost all of his brief to describing what he considers the very, very sinister circumstances of this case.

And if the Court please, and I must say this, he has resorted throughout this litigation to the most scandalous kind of slander, relying upon the familiar but discredited technique that repetition of an irrelevancy or of an untruthful somehow established its pertinence or its truth.

He has said in his brief —

(Inaudible)

Henry Kaiser:

Oh, I’m sorry Your Honor, you’re right.

I do want to point out that none of these things to which he adverts the so-called handpicking of delegates, the so-called lack of notice, the so-called late night manipulations.

None of them were found by any court below, by the trial court, they all appear only in the complaint which in this case was verified by counsel and in the affidavit of counsel who was not present at the convention.

They were all disputed by persons having direct knowledge of the facts, but in any case they’re not before this Court.

We are here, if the Court please as I said at the outset, on certiorari to the Second Circuit.

We are not appealing from Mr. Schmidt’s complaint or indeed from his very resplendent imagination of what occurred at that convention.

The sole issue is whether Congress intended this result.

That’s the only issue before this Court and we say that consistent with its language, with its statutory history, with other provisions of the act and with its declared policy there can only be one result that Congress did successfully safeguard all existing methods for raising dues at union conventions.

Thank you.