Hodgson v. Local Union 6799, United Steelworkers of America, AFL-CIO

PETITIONER:Hodgson
RESPONDENT:Local Union 6799, United Steelworkers of America, AFL-CIO
LOCATION:Arizona Dept of Public Welfare

DOCKET NO.: 655
DECIDED BY: Burger Court (1970-1971)
LOWER COURT: United States Court of Appeals for the Ninth Circuit

CITATION: 403 US 333 (1971)
ARGUED: Mar 23, 1971
DECIDED: Jun 14, 1971

Facts of the case

Question

Audio Transcription for Oral Argument – March 23, 1971 in Hodgson v. Local Union 6799, United Steelworkers of America, AFL-CIO

Warren E. Burger:

In number 655 Hodgson against Local Union number 6799 of the United Steelworkers.

Mr. Wallace you may proceed whenever you’re ready.

Lawrence G. Wallace:

Thank you Mr. Chief Justice and may it please the Court.

This case was brought by the Secretary of Labor under Title IV sometimes called the Union Democracy Provisions of the Labor-Management Reporting and Disclosure Act of 1959.

It was brought to set aside the 1967 election of officers of the respondent Local Union.

After the election a member of the Local who had been an unsuccessful candidate for President protested the elections conduct to the Union and after relief was denied filed a complaint with the Secretary.

His internal protest with the Union had complained among other things of the use of Union facilities to prepare campaign literature for the incumbent president who was his opponent in the election.

His complaint with the Secretary repeated this charge and added for the first time a charge that an unreasonably restrictive meeting-attendance requirement had been imposed as a condition for candidacy.

After investigating the election, the Secretary concluded that there was probable cause to believe that the Act had been violated with respect to each of these matters and he advised the respondent Unions of these findings and invited them to discuss the findings and to take internal remedial action.

When after discussions the respondent Unions refused to undertake remedial measures and either of these matters, the suit was filed.

Both the District Court and the Court of Appeals upheld the Secretary’s complaint with respect to the use of Union facilities to promote the candidacy of the incumbent president.

The election for that office was accordingly ordered set aside on that ground and that aspect of the judgment below is not at issue in this Court.

What is at issue are the rulings of the courts with respect to the validity of the meeting-attendance requirement.

The District Court held that the Secretary did have authority or standing to raise that issue in this litigation even though it had not been a subject of the member’s complaint with the Union but the District Court upheld the meeting-attendance requirement on the merits as authorized by the Act.

The Court of Appeals affirmed the judgment but on the ground that the Secretary did not have standing to raise this issue and the suit, did not reach the merits.

In our petition for certiorari we asked this Court to decide the standing issue and if it decided the standing issue in our favor also to go on and reach the issue on the merits since it is an issue of national importance involved in litigation against several locals of the Steelworkers Union around the country and the respondents have joined in urging that both issues be reach if the standing issue is indeed resolved in our favor.

Now if the Court please, I plan first to discuss the standing issue and that in the course of discussing the second issue to summarize the facts that relate to the issue of the validity of the meeting-attendance requirement.

The provisions of the statute relevant to the standing issue can be found in the appendix to our brief on pages 28 and 29 of the brief in Section 402 of the Act and I wish first to direct the Court’s attention to Section 402 (b) on page 28.

And there the governing statutory language is that after a member of the organization has filed the complaint, the Secretary shall investigate such complaint and if he finds probable cause to believe that a violation of this Title has occurred and his not been remedied he shall within a certain time bring the suit.

Now, as we point it out in our brief the statutory language is consistent with our position that the Secretary has authority indeed it supports our position of the Secretary has authority to raise in the lawsuit any violation which his investigation discloses to have occurred in the election concerning which the complaint has been filed.

And we noted also that in the course of the legislative history, Congress had before it a drafted an alternative bill which would have limited the lawsuit to the particular allegation made in the complaint and while there’s no explicit reason given in the course of the legislative history for the choice of this language rather than the alternative language we think there is significance in the fact that this broader formulation was chosen by Congress.

Mr. Wallace, straight from that on one thing, do I understand correctly that if there is no complaint filed, the Secretary has no investigatory powers under Section 402 (b)?

Lawrence G. Wallace:

Well, he does have investigatory powers but he would not have powers to bring any lawsuit.

He will have powers only to advice the Union if he believes that the Unions procedures were not in accordance with the Act but those powers are conferred under another Section of the Act which is not reproduced in our appendix, Section 601.

Then you’re in a position where the presence of a complaint is your starting point who have to have this?

Lawrence G. Wallace:

Under Section 402 in order for the Secretary to have authority to bring this lawsuit that is correct.

And having the complaint and your argument is that you can go off in the points not raise in the complaint?

Lawrence G. Wallace:

Well —

But then having the complaint you can’t do this at all?

Lawrence G. Wallace:

Well, the Secretary can investigate and inform the Union but cannot bring a lawsuit in the absence of a complaint, that is our argument and I’ll elaborate on the reasons for it in just a moment.

And was unjust?

Lawrence G. Wallace:

Well, without exhaustion by the Union member although in practice the Secretary always gives the Union an opportunity to remedy the violations he has found internally.

John M. Harlan:

In a specific provision for exhaustion and adjustment?

Lawrence G. Wallace:

It is certainly does Mr. Justice Harlan and this lawsuit never could have been brought by the Secretary if the complaint had been rectified internally by the Union to the satisfaction of the complaining member.

We do not dispute that.

John M. Harlan:

The member can’t go to the Secretary until after he as a member has exhausted the Union?

Lawrence G. Wallace:

That is correct.

That is correct and presumably never would have gone to the Secretary if the Union had redressed to specific violation which he complained.

John M. Harlan:

But independently of 402, as I understand it the Secretary is sua sponte, may make an investigation at Section 601?

Lawrence G. Wallace:

601, yes sir.

John M. Harlan:

And then he does the same things virtually that the Union member who is complaining of something does, doesn’t he?

In which he sits down with the Union officials to see if they will not themselves do something about it?

Lawrence G. Wallace:

That is correct except unlike the Union member he does not have ultimate redress to anyone who can then bring a lawsuit, [Laughter] if the negotiations are unsuccessful.

Now, before we leave the face of the statute we think there is another provision in Section 402 which has great bearing on this question and that is on page 29 of our brief, subsection C-2.

And that indicates that if the Secretary suit is successful the court shall set aside the election declare the election if any to be avoid and direct the conduct of a new election under the supervision of the Secretary and so far as lawful impracticable inconformity with the constitution and by-laws of the labor organization.

This raises a considerable problem if the scope of the lawsuit brought by the Secretary is to be limited only to the complaint raise by the Union member because the Secretary is charge if he is successful in that lawsuit with supervising a new election in conformity with the constitution and by laws in so far as they are lawful and in this instance the Secretary was of the view with that at the meeting-attendance requirement as a condition of candidacy was not lawful as alternative if he could not raise that issue in the litigation would be there to supervise the election applying what he believe to be a candidacy qualification violative of the Act or to delay the election while this issue is separately litigated before the new election is conducted which we think would be inconsistent with Congress’ purpose to expedite the provision of relief under this statute.

Once the District Court has in fact found the violation of the statute provides that there can be no stay of the District Court judgment setting aside the election and ordering a new one while that judgment is appeal.

John M. Harlan:

But Mr. Wallace if he sets aside the election of the president and wants to order a new election he can certainly conduct the election in accordance with the law without setting aside the election for their officers.

And even if he was right about being able to litigate the meeting-attendance rules in order to conduct the right kind of an election, is it necessarily to follow that he must set aside the election of officers previously elected with which all the members seem to be satisfied?

Lawrence G. Wallace:

There is the possibility of this intermediate position that only that particular election would then be conducted in conformity with the law as the Secretary views the law and as the courts presumably would have uphold it.

But this would have the disadvantage that admittedly the other officers would have been elected unlawfully under that very decision and yet their election would stand which —

John M. Harlan:

Well, that may be true but as I understand it you say one of the purposes of this statute was to cause the Union self-government in the sense that the Secretary can intervene in an election and all the members happen to be satisfied with it.

Lawrence G. Wallace:

That is correct.

John M. Harlan:

Well, they are satisfied of the election of all the officers except the president.

How it does it for the purpose of the Act permit the Secretary to have set any other election but the president?

Lawrence G. Wallace:

Once his intervention is warrant under the statute then it seems to us on a proper reading of the legislative history and what this Court has said about the statute that the scope of the redress is not to be limited by what may have been the limited perception of the individual complain into what was wrong with the election or by his own self interest.

There is a broader public interest to be serve by the Secretary’s intervention once its warranted and as the Court put the matter in the Glass Bottle Blowers case in 389 U.S. although Congress was committed to minimal intervention it was obviously equally committed to making that intervention once warranted effective in carrying out the basic aim of Title IV which is to assure free and Democratic Union elections.

Perhaps the most significant thing about the legislative history of Title IV is that Congress chose to invest the enforcement authority in the Secretary rather than in the individual complainant.

At one time a bill was passed in the House which would have made the rights enforceable by private suit.

But as finally enacted the law recognizes that there is a broader public interest to be served and not merely they redress of individual grievances.

Warren E. Burger:

Mr. Wallace, there are other matters beside election of officers that could be challenge is that not so?

Expenditure of money for example.

Lawrence G. Wallace:

There are other matters that can be challenge.

Warren E. Burger:

So I take it, your theory is if a member of the Union makes a complaint about one particular type of expenditure which he considers unlawful and improper that once the inquiry is made by the Secretary he can pursue every instance of improper expenditure that he encounters?

Lawrence G. Wallace:

Well, we need not go that far Mr. Chief Justice.

That’s perhaps the more difficult case.

Here at that challenge about the Secretary is limited to the 1967 election.

All of these officers were elected in the same 1967 election.

The validity of which have been questioned and it’s been questioned by the Secretary on the ground that an unlawful meeting-attendance requirement was impose as a condition for the candidacy qualification and this applied to all the candidates elected in that election.

And Title IV does not limit the investigation after unlawful use of the Union funds.

There need to be a complaint before the Secretary would have jurisdiction under the Act to do something about Union funds.

So, this — really this argument relates to the setting aside of elections and the holding of new supervise elections.

Now, there was the subsidiary purpose of fostering Unions self-government in the Act.

We recognized that.

It wasn’t the dominant purpose.

We recognized that if everyone is satisfied the election cannot be disturb or if everyone can be made satisfied through internal procedures the election cannot be disturb.

But as we elaborate in our brief we think it would be inappropriate to read broader implications than this into the exhaustion requirement that is the requirement that the member exhaust Union remedies because this is very different from the normal exhaustion of administrative remedy situation.

The Congress has not conferred a factfinding or any other kind of governmental authority on the Union on these private organizations.

Does the member — does a member have the right to present the Secretary anything other than what any issues that he had not exhausted within the Union?

Lawrence G. Wallace:

Well, the Secretary will entertain complains but even if the complain and then in this case had not raise the question of the candidacy qualification, the Secretary would embrace that within his investigation and this Court and others have indicated his investigatory powers broad and if he concluded that there was a violation he would include that in the allegations of the lawsuit.

But a member — but it would think the Secretary need to exhaust within the Union the issue of the president’s election and then he files for secretary, is free to force the Secretary to investigate some issues he didn’t exhaust on?

Lawrence G. Wallace:

Well, the Secretary views his own responsibility as investigating the entire validity of the election so that the members enforcing the Secretary whether he alleges the additional one or not.

Let’s say Secretary says that “I’m not interested to get into questions exhausted on the Union” and the fellow says, “I’m sorry but I’ve exhausted on one issue in that.”

Lawrence G. Wallace:

Well, the Secretary need not bring the suit.

Under Section 601 the Secretary can investigate any matter at anyone’s complain at any time or without a complaint.

My question was what if the Secretary has any authority to say that he — well, is he suppose to investigate in respondent’s claim?

Lawrence G. Wallace:

Certainly!

I hate to get that he is —

He’s a Union member who exhausted on one issue.

They go to Secretary and says here are six issues and the secretary say I will not investigate the other five.

Lawrence G. Wallace:

Well, the Secretary can but if that has not been the Secretary’s practice.

He cannot say that because the member has no right to trigger his —

Lawrence G. Wallace:

He has to investigate the complaint.

All five, all six issues?

Lawrence G. Wallace:

Well, if the Secretary believes that they would not state probable cause to believe the Act was violated then there is nothing that he need investigate with respect to some of the issues raise.

There is no point in investigating something which on it is face doesn’t raise an issue that —

Well, let’s just take this case, Mr. Wallace.

The member comes to him with the complaint about the president’s election and the meeting rules when he hasn’t exhausted on the meeting rules on the Union?

Lawrence G. Wallace:

That is correct.

May the Sectary say, “Well, it sounds like a clear violation but I am just not investigating that because you did not exhaust it on the Union.”

May he do that?

Lawrence G. Wallace:

Well, I suppose he may he never has and that issue has never arisen and it’s hard for me to concede that the Secretary would do that, I mean his responsibility is to try redress violations at least through conciliatory means.

Thurgood Marshall:

Mr. Wallace, suppose the complaint is filed that the president selection was illegal because he wasn’t qualified to run.

And that was — the paper shown the complaint that that had been exhausted within the Union but then they included five of the complaints about note issue, improper voting, and everything else, could the Secretary go to court with that unless it had been exhausted within the Union?

Lawrence G. Wallace:

Yes, he could Mr. Justice under our view of the statute.

Now, I believe it should be kept in mind that the Secretary does invariably afford an opportunity for the Union to remedy anything that he deems a violation before he sues as he did here.

The Union had the same opportunity that would have had if the member had presented that specific complaint along with his other complaints, the same opportunity to redress that internally.

Thurgood Marshall:

But the statute requires exhaustion on each one of those forms, does it not?

That’s the only word.

Lawrence G. Wallace:

Well, if the statute does not say exhaustion of each point, the statute says a member who has exhausted his remedy, his internal remedy can file a complaint with the Secretary and then the Secretary after his investigation if he finds probable cause, he believe that a violation has occurred, they bring a lawsuit.

Thurgood Marshall:

On that a violation.

Lawrence G. Wallace:

A violation, it doesn’t say the violation alleged or exhausted.

Thurgood Marshall:

A violation plus four others?

Lawrence G. Wallace:

Well, any violation surely that “a” means more than one if two violations were alleges initially.

Thurgood Marshall:

Well, as going back to my hypo, the Secretary finds that the president was a valid candidate and has found no substance in that complain but did find substance in the other four that the Union member made no effort to exhaust them, what happens?

Lawrence G. Wallace:

The Secretary can bring a lawsuit because there has been dissatisfaction on the part of the member of the Local with this election and the Secretary upon investigating it found that there was indeed reason to believe that the statute was violated.

It may be that the disaffected Union member did not perceive the accurate basis on which there was a violation in that case.

Thurgood Marshall:

The only thing that requires the triggering which is the filing of the complaint, why is that?

Lawrence G. Wallace:

That is the only thing required.

Now as a matter of policy, the Secretary does not bring a lawsuit in a situation where the complaint itself was in his view completely without merit.

Lawrence G. Wallace:

But under our view of the statute he has the authority to do this as we point our in our brief we think it would be inappropriate to read too much into this exhaustion requirement so long as internal rectification opportunity for internal rectification is afforded to the Union.

What you’re really saying is that the exhaustion provision in the context of the statute is a notice provision?

Lawrence G. Wallace:

Well, that is correct.

It is not a situation comparable to exhaustion of remedies in a governmental agency.

When the suit is in fact brought it’s completely de novo.

It’s not suit to review the Union’s determination and it’s not a suit limited to the record that was made before the Union.

It’s not a classical case of exhaustion of administrative remedies at all.

If on the statute does the election exhaustion has?

Lawrence G. Wallace:

Well, that was a familiar word but given the entire purpose of the statute the dominant purpose of Congress was to assure free and democratic Union elections and there was a subsidiary purpose here which we believe the Secretary honors in his practices of permitting Union self-government and not intervening if everyone in the local is satisfied with the result.

All of these purposes are served by the approach that the Secretary takes but the dominant purpose would be this serve by the view that the Secretary cannot assure the free and democratic election under the statute as the statute requires it because of shortcomings in the initial complaint when in fact the Secretary has given the Union the opportunity to rectify those shortcomings.

It comes down to almost the technicality as to from whom the Union heard about the shortcomings (Voice Overlap) in terms of the purposes of the Act.

Well, there is another issue in this case and my time for discussing it is quite limited but we believe it is a very important issue and it is an issue under Section 401 of the Act which is on page 27 of our brief whether this requirement was impose is a requirement authorized by the Act is a reasonable qualification uniformly imposed.

We believe that it wasn’t under the approach taken by this Court in the Hotel Workers case in 391 U.S.

Which elaborate at some length the narrowness of the statutory exception and the fact that Congress took as its model democratic elections in which a requirement of this sort which it just qualified the majority no matter how you look at it of a possible candidates would be unthinkable and an ordinary political election this kind of a question is a campaign issue rather than a basis for disqualification.

And if I may, I’ll save the remainder of my time for rebuttal.

Warren E. Burger:

Thank you Mr. Wallace.

Mr. Gottesman?

Michael H. Gottesman:

Mr. Chief Justice, may it please the Court?

The principal thrust of Mr. Wallace’s argument and it’s also the Government’s argument in the brief is a conception of this statute which I think is inconsistent with what Congress was thinking about when it enacted it.

Over and over, we hear that the broader public interest is the correction of all violations of Title IV and there’s this little subsidiary thing over here about exhaustion of remedies which somehow crept into the statute and somehow the Secretary of Labor is stock with it and somehow it does indeed unfortunately limit his power to proceed in certain instances but because it’s such a little subsidiary thing then by all mean it should be so narrowly construed that it limits him only where the court has to say that it limits it.

Now, I would suggest that if one examines the legislative history of this statute that that does not accurately balance the two concerns that Congress had.

To be sure Congress was concerned with what it had found in the McClellan Committee Hearings.

There were it found and it is said a minority of Unions which had very undemocratic election procedures, the effect of which was that the incumbents were able to entrench themselves and the membership was not allowed to have voice in selecting its governors.

And for that reason, Congress said and said it was doing it very reluctantly.

It imposed what is undoubtedly the most elaborate set of procedures and provisions and requirements governing the election of any non-public body in the United States.

But Congress realized in the sense the enormity of what it was doing it was making a quite unprecedented intrusion into the affairs of what have been thought to be private institutions.

And so, throughout the debates and throughout the Senate Report which is really the principal explanation of Title IV is well been the concern of Congress that Union self government not be invaded anymore than it is absolutely necessary to accomplish this basic purposes for which the statute was being enacted.

Congress repeatedly said this are private institutions the overwhelming majority of them are honestly and democratically run.

It made a finding based on its hearings that Internal Union Appellate processes were in fact equipped to and had in fact dealt adequately with the since — that had been committed within Unions with only a few exceptions.

And it modeled the statute which as it sought was going to balance.

Michael H. Gottesman:

On the one hand it’s concerned that where democracy was not existent that be a procedure to assure its existence and on the other a very critical concern in this stature that the Government not go trampling into the affairs of Unions anymore than was absolutely necessary.

Now, to that end according to this statute, Section 402 (a), the exhaustion requirement and that perhaps I might begin as Mr. Wallace did with reading.

Section 402 (a) says, a member of a labor organization who has exhausted the remedies available under the constitution and by laws of statute organization not who has exhausted some remedies, not who has exhausted a remedy on one issue but who has exhausted the remedies available and we would suggest that if we are to resort to literalism and we do not think we should that that word available in there suggest rather strongly that what Congress was saying is you must give the Union all of the opportunities which it is affords you to bring these issues to it for correction in the first instance and when you have exhausted all of those remedies which are available within the Union then you may go on to the Secretary of Labor.

And if it is found that the Union through the procedures that it provides has not adequately dealt with an allegation of the statute.

Then in default of its correcting the problems, the Secretary of Labor may move in.

There was no default in this case, the meeting-attendance rule which is the issue as to which we have this question was never raise within the Union and though there’s talk about well we can’t expect members to be able to draft complaints to the Union like lawyers would and we can’t expect them to be articulate.

That’s not the issue in this case, this isn’t a case where the failure to raise this issue was in artful draftsmanship or a lack of understanding.

This is was candidate for the president who had himself qualified under the meeting-attendance rule.

He was not complaining about the meeting-attendance rule.

He was eligible under it.

He was complaining because one of his opponents had run off a leaflet on the Union’s mimeograph machine.

That’s the impression I got from the brief but there’s no dispute that this complaining member was qualified under the rule?

Michael H. Gottesman:

Absolutely not, he run he was on the ballot and he was defeated and having been defeated, he challenged the election because his opponent, he challenged it within the Union because his opponent had run off a leaflet on the Union’s mimeograph machine and he had not been told.

Though he knew it had happened, he had not been told that he had permission to do the same.

Now, he —

Was that this whole issue?

Michael H. Gottesman:

Well, there were other issues which the Secretary agrees that he raised within the Union that the Secretary agrees were without merit.

None of them related to the other issue which the Secretary raised in this lawsuit which was the meeting-attendance rule.

He complained about the placement of the voting booths and some other things within the Union.

The Union found those complaints without merit and so did the Secretary.

But for our relevant purposes he did raise within the Union the complaint about his opponent using the mimeograph machine.

And as the Secretary conceded and answered to an interrogatory.

He did not raise within the Union.

Any question as to the reasonableness of the meeting-attendance rule under which he had in fact qualified.

Now, the Union heard those issues which he did raise and concluded that the election should not be set aside for any of them.

He then filed a complaint to the Secretary which the Secretary construes as having raised the reasonableness of the meeting-attendance role.

I think if you read it, it is not that clear that it raise that.

What he was really complaining about was not the existence of the rule but the fact that he claimed and the court ultimately found to the contrary but he claimed that the rule had not been adequately communicated to the members so that they did not know that they were obligated to attend the meetings in order to run.

And prior to trial, we had interviewed the complainant and asked him whether he had intended to raise the reasonableness of the rule with the Secretary and he said, “No it’s a great rule.

I am all for it.”

Michael H. Gottesman:

And at trial, we began to asked him questions says to whether he thought the rule was necessary for the well-being of the Union and the government objected and they said, “We don’t think the views of any one man are relevant to the resolution of this question.

This is in the record.”

And therefore we don’t think the court should allow the complaining witness to state whether he is or is not in agreement with this rule and the judge sustained that objection.

So the record does not show the view of the complainant.

I can only state that it was our expectation that had he been allowed to answer that question he would have said that a man cannot be an adequate officer of this Union unless he has attended the meetings.

So it’s doubtful to us that he even raised the question in his complaint to the Secretary, although the secretary claims that he did.

But in any event raising it in the complaint to the Secretary is not sufficient compliance with the requirements of the statute because the statute quite clearly requires as we read it, that a member have exhausted it within the Union and I think this can be most easily demonstrated by examining the case which the Secretary admits that is if a member does not exhaust any issue within the Union then the Secretary concedes no matter how egregious that election, no matter how outrageous the violations of Title IV.

The Secretary may not institute a lawsuit to set that election aside.

He may indeed investigate and publish his condemnation of it but he may not institute a lawsuit to set it aside.

Warren E. Burger:

You do not view the Secretary’s informal efforts at adjustment as a substitute for the statutory burden of the member to exhaust the Union remedies?

Michael H. Gottesman:

No, we don’t Your Honor and I think when I explained what we understand to be the purposes of the exhaustion, it will become clear why we don’t view them as an adequate substitute.

But I might begin by saying that if I understand the Secretary’s position, he doesn’t view it as an adequate substitute either in those cases where no issue was exhausted before the Union.

In other words, if there’s no complaint within the Union, a member simply goes directly to the Secretary.

If we understand the Secretary’s position, he is not claiming that by giving the Union notice before his sues that that’s an adequate substitute for exhaustion.

In any event, let’s look at that case no matter how egregious the violation if we understand the Secretary, he can’t sue without some complaint within the Union.

But now says the Secretary, if there’s a complaint about something no matter irrelevant within the Union.

If a member files a complaint saying I stub my toe on the way to the voting booth and therefore this election may be set aside.

Then says the Secretary, all of these egregious things that happened are now open to the correction of the Secretary.

Well, that seems very salutary.

It’s always nice to have egregious violations corrected.

But could it conceivably have been Congress’ intension to adopt so quick studied statute.

Why would Congress say that no matter how egregious the election unless a member exhaust within the Union, the Secretary can’t proceed.

But if he exhaust about anything no matter how irrelevant, that exhaustion opens the door for the Secretary to come through and then correct all of these things which are otherwise not beyond his reach.

Just from a logical analysis, it wouldn’t make sense for Congress to make that kind of a distinction.

And if one looks indeed at what Congress thought was going to be served by the exhaustion requirement, it becomes clear that not only is it illogical but it’s not what Congress intended.

Congress was as I stated earlier pre-occupied with its concern to foster Union self-government and as the Senate Report put it, to keep the Government’s hands off the Unions to the maximum extent consistent with the requirements of the statute.

Byron R. White:

Mr. Gottesman, in this connection help me along here.

In 402 (b) it states, the Secretary shall investigate and if he finds probable cause to believe that a violation of this Title has occurred and so forth, am I correct in my understanding that this statute formally spoke of such violation of such allegation rather than violation?

Michael H. Gottesman:

No, I believe the Government’s brief rather got carried away on that point and if I may I’ll explain what happen.

In 19 — this Bill was enacted in 1959 and it was the Kennedy Urban Bill which lead to Title IV.

Michael H. Gottesman:

In 1958 there was Bill called the Kennedy-Ives Bill, introduced and passed by the Senate but not by the House, and that Bill as passed by the Senate had exactly this language which appears in the final statute but because it was not passed by the House, it came up again in 1959 for reconsideration by the Senate.

In 1959, several other proposed bills were also introduced in the Senate.

One of which was introduced by Senator Mundt and that was Senate Bill number 1002 and that’s the one which the Government refers it.

Senator Mundt’s Bill was completely different from this.

It required no exhaustion of remedies within the Union at all but it prescribed some rules about how election would have to be conducted.

And it said if 2% of the members of the Union are dissatisfied or think a violation has occurred they may, by signing a petition go to the Secretary of Labor alleging that a violation has occurred and the Secretary may then bring a lawsuit challenging such violation.

Now that’s where that language came from that they cite as the competing Bill before Congress.

That Bill in fact never saw the light of day.

It’s doubtful if anyone other than Senator Mundt ever read it.

At least when the floor debates on the Kennedy-Ervin Bill were going on, Senator Mundt said that his Bill had been given short shrift in the Committee and nobody had paid any attention to it and he was very regretful about that.

But the fact is that that Bill was never seriously before the Senate for consideration.

The language as it appears in it’s final form had been adopted a year prior to that in 1958 was simply carried forward again in 1959 and readopted by the Senate without change in any of these salient points so that, I mean it does use the words “a violation” but I don’t think you can draw any inference that there was a conscious decision by Congress to use the words a violation rather than such violation.

Since if Senator Mundt is to be believed, no one else ever even knew that his Bill and its words such violation was even before them for competing consideration.

Why did you think they use the words “a violation?”

Michael H. Gottesman:

Well, I think if you read words “a violation” in context they don’t mean any violation.

It says the Secretary shall investigate such complaint and if he finds probable cause to believe that a violation has occurred.

Now, I think that that fairly read and particularly read in the light of the purpose means a violation alleged in the complaint.

You mean if it instead of “a” it were that “the complaint of” violation?

Michael H. Gottesman:

Right, I mean that is certainly a reading of it.

If you had not be able to use —

You’re suggesting an interpretation that is as if instead of “a” the words were “the complaint of?”

Michael H. Gottesman:

That’s correct and we suggest that that reading is both consistent with the structure of these two provisions.

But what if the member after having exhausted on one issue may legally under the Act file a complaint with the Secretary listing six issues?

Michael H. Gottesman:

Well, but again that goes to whether he can that and to decide whether he can do that you have to go back 402 (a).

So we say when you read them together what it say is you can complain to the Secretary about that which you exhausted within the Union and the Secretary may sue with respect to any violation about which you complaint which means —

So what you’re saying if he files like a complaint listing six issues when it’s only accept exhausted on one, the Secretary really has no authority to investigate in order to investigate to file a lawsuit on any but one.

Michael H. Gottesman:

He may investigate.

He may not file a lawsuit on other than the one.

He may not file a lawsuit on any issue except —

And all of that member’s additions of the five alleged violations brings about then as a 601 investigation?

Michael H. Gottesman:

Correct.

Now, that resolve —

Warren E. Burger:

Is it your suggestion that if that situation occurred, the Secretary would simply be able to say to the Union-member, “Now, I find five other violations that you didn’t claim about and I can’t do anything about them unless you exhaust your remedies within the Union,” is that about the course to be followed?

Michael H. Gottesman:

Well, if there’s still time consistent with the Unions rules for the member to go back and exhaust, then undoubtedly he would be free to go back and exhaust and bring it to the Secretary.

Warren E. Burger:

Isn’t you’re —

Michael H. Gottesman:

Normally, the timing in such that that wouldn’t be a feasible alternative because the time for exhausting was in the Union would have expired under the Union’s own rules.

Warren E. Burger:

Isn’t your argument on this one sentence of Section (b) which uses “such complaint” in the first line and “a violation” in the second file rather it adds with most of the canons of construction of the statute?

Michael H. Gottesman:

I think not cause I think the first and most basic canon of construction is to discern what Congress intended to do which is the discernible for the legislative history that I want to get to in —

Warren E. Burger:

Isn’t our first job to see what Congress said?

Michael H. Gottesman:

Well, I think perhaps not so much with this statute as with others.

This Court is made very clear in other cases dealing with this various section that this is not a statute which can be lead — read literally that in view of the competing and contending forces that when into it so construction and the changes that were made on the floor, etcetera, etcetera this is a statute that has to be approach with caution as to it’s construction and that the —

And can’t be read.

Do you say cannot be read literally?

Michael H. Gottesman:

That’s what this Court said Your Honor.

It said this provision said labor legislations generally and this statute in particular cannot be read literally but must be read in terms of the purposes which Congress sought to serve in its enactment which can be discerned from the legislative history.

What case was that?

Michael H. Gottesman:

I believe it was the Laborers case.

There were two decided on the same day Laborers and Glass Bottle Blowers and in one of those and perhaps in both the Court made the statement that it cannot be read literally.

Well, that I think that’s been said in other cases generally about labor legislation, hasn’t it?

Michael H. Gottesman:

Yes, it has Your Honor.

Indeed it’s Glass Bottle Blowers that this portion is quoted in page 32 of our brief.

But you aren’t worried about literal reading, aren’t you?

Michael H. Gottesman:

Well, I’m not sure whether literal reading leads to here.

Well, I thought it would be there.

You can be as literal as an exhaust to that?

Michael H. Gottesman:

Yes, I mean you can read — you can literally read this to mean whatever you want it to mean and I think that’s why this assumption about how one can construes labor legislation began was that you can read things to reach whatever result you want.

If you read the Senate Report I think you get more guidance in the ambiguity as a somewhat resolve.

As we say — as we read the Senate Report this — the exhaustion requirement was intended to serve four functions.

Number one, Congress didn’t want the Secretary to be an agent at large bringing lawsuits wherever he thought Unions weren’t doing things right.

This was a Union Democracy statute as Mr. Wallace said. Congress wanted to allow the Secretary to act where the member were dissatisfied with the way their Union was being run and if the members are not dissatisfied with the meeting-attendance rule, Congress didn’t want the Secretary trampling in challenging it absent their consent.

Michael H. Gottesman:

Now, that purpose can’t be served at all if the Secretary is free that allege anything he wants to allege because as here he can then allege things as to which there’s no indication of membership dissatisfaction.

The second thing Congress wanted to serve by this is that it wanted to instill in the membership respect for Union for tribunals, and it wanted Union tribunals to function as administrative agencies notwithstanding the Government’s assertion to the contrary.

This Court said that it was Congress’ emphatic intention that Unions would be the principal enforcement agencies of the statute and so Congress wanted members to see that their tribunals would indeed be available for the resolution of these problems.

Now, members are not going to be encouraged to take their disputes to the Union’s tribunals for resolution if they know that they can just throw any old thing into the Union and then go to the Secretary afterward and he’ll take it whether the Union have it or not.

And indeed when Unions in fact they’re behaving in a responsible fashion as indeed the Steelworkers is in resolving election disputes.

Is this Union over a period of 60 — 1964 through 1967?

It provided corrective action and the majority of the election complaints that came before it and so it was doing the job that Congress hope and expected Unions to do.

But if the members see that the Union tribunal is just willfully overruled by the Secretary who brings the lawsuits then I cannot be convinced that this Union is doing their job and they’re going to lose their motivation to bring the problems to the Union for correction.

Now, to be sure if the Union has fair notice of a problem and doesn’t do anything about it then it deserves to disrepute which its own internal proceedings are brought to.

But whereas here the Union has no notice whatsoever that an issue is being challenged and the reason it has no such notice is that indeed the issue is not being challenged by any of its member.

It does nothing but bring the Union’s tribunal into disrepute for the membership to see that notwithstanding without the Union’s action the Secretary of Labor has then institute a lawsuit to set that election aside.

And finally, this statute was designed with very specific time limits in mind in the hopes that Union problems would be corrected very promptly.

And what the Secretary’s construction means is that particular kinds of election problems can be raise for the first time.

Many months in this case it was four to five months after the elections been decided and long after all of the Union internal correction procedures had been exhausted.

The Senate Report said that it was putting the time limits into this statute because time as of the essence that’s their words.

Time sees us to be at the essence when five months later the Secretary as a result of it’s own views about what’s good and what’s bad in Union can raise for the first time issues which were never raise within the Union.

What do you say about the Secretary’s the right to have the membership-attendance rule cast on in a suit, in this case only when he sues — if he sues just for the set aside the election of president?

What about the —

Michael H. Gottesman:

We’re ambivalent about that.

There’s most of the purposes for which the exhaustion rule was designed would not be violated by allowing the Secretary to get what amounted to a declaratory judgment that in the election which has been set aside for another reason.

This thing will be done the way the Secretary claims it must be done under the statute.

Unless that all — isn’t that a Section for him to carry out his —

Michael H. Gottesman:

Well, it is except for one —

In cases of the Act?

Michael H. Gottesman:

Except but it’s not really essential and I’ll explain why.

There is one purpose of the exhaustion which would not be served by that and that’s the purpose that unless the membership unhappy things are not to be changed which I stated was the first of the purpose isn’t the only one incidentally that the Secretary acknowledges in the brief.

If the membership is unhappy about one — about thing and if there has to be a new election in order to satisfy the membership you’re gong to have to carry out an election and in the access you carry out of election, you carry out one that’s in accordance with the law.

Michael H. Gottesman:

That’s right but the Act also says that unless somebody is unhappy with that election you are going to carry out it’s not subject to challenge so you get the following – you get the following do a problem.

Under one hand, if all of the members are delighted with the meeting-attendance rule take the extreme case, every one of the million in quarter Steelworkers signs a thing saying, “I think this is a great rule.”

Congress quite clearly didn’t want the Secretary to be able to get that rule set aside even though it might be technically a violation.

I don’t know how you can say that if Congress said that if you find the violation carry on a new election but you must carry it out in accordance with law.

Michael H. Gottesman:

Well —

Say Congress didn’t intend for him to raise the question of the meeting-attendance rule?

Michael H. Gottesman:

Well, if this Court concludes that irrespective of membership satisfaction, the new election must be conducted in accordance with T Title — with the every requirement of Title IV even though the members might refer it another way, then we would have no problem with the Court saying that the adjudication of the merits of this issue can be made not for the purpose of setting aside anything because of that adjudication but for the purpose of instructing the Union and the Secretary as to how a rerun ordered for other reasons is to be conducted.

And indeed we told that to the Court of Appeals.

I recall that we won this case in a District Court on the merits.

The District Court said the meeting-attendance rule is reasonable.

In the Court of Appeals, the Government for the first time made the argument while even if we’re not allowed to challenge the election on this ground, we ought to be entitled to guidance if we’re to rerun the election for the president for other reasons.

We ought to have guidance as to how to do something and we indicated that we had no serious objection with the court deciding the issue for that limited purpose not for the purpose of setting aside the election of all 11 officers which is what the Secretary seeks initially, but for the purpose simply of instructing the parties on how to rerun is to be conducted.

Oh!

I understand your statement but I want to make sure I get it right that you in this regard as the Secretary this man would qualify it under the Union rule and it made no complaint to the Secretary putting aside exhaustion about the rule?

Michael H. Gottesman:

Well, there is no —

That’s an overstatement ever heard or misunderstanding or what?

Michael H. Gottesman:

Well no, there is disagreement between the Secretary and us as to what he complained about to the Secretary.

His words were ambiguous.

What does his — what did he complained about?

Michael H. Gottesman:

He said the Union conducted the election under a rule which was unfair.

A meeting-attendance rule which was unfair I’m characterizing it because it was not adequately communicated to the members.

Now, the Secretary said he was complaining about both the unfairness of the rule as such and the failure to communicate.

We say no he was only complaining about authority to communicate the rule and we were prepared to have him testify and expected fully that he would testify but that he was only complaining.

That’s irrelevant under your position of the Act?

Michael H. Gottesman:

Oh!

Yes, irrelevant under ours.

He could have expressly attack the rule and he would still be here?

Michael H. Gottesman:

Absolutely!

In the same market?

Michael H. Gottesman:

Yes.

It’s irrelevant under ours but there is at least a possible middle ground of saying that he can sue about — the Secretary can sue about what’s raise in the complaint.

The Secretary has sort of alluded to that middle ground and I want to emphasize that even if there were such a middle ground which we don’t agree with, we say you got exhaust it in the Union.

Even if there were such a middle ground this record would not justify allowing and to sue on that.

Michael H. Gottesman:

Now, I’d like to turn on my remaining few moments to the meeting-attendance rule and it’s reasonableness as so.

The Secretary repeatedly talks about this is just like hotel employees this is a case were a rule has disqualified or has rendered a majority of the members of the Union ineligible to run for that.

The single thing I would most like to emphasize is that this rule disqualified nobody.

Every single member of this Union and the Secretary conceded it could qualify under this rule and could qualify without difficulty.

All you had to do was attend 11 meetings over the course of a 21-month period.

The Secretary of Labor had a regulation published.

It is still publish today.

Expressly stating that a meeting-attendance requirement requiring 50% attendance at the meeting is over a two-year period is a reasonable rule unless there is difficulty in attendance.

We are ironically here defending the post — the Secretary’s publish regulation.

He ironically is here attacking it.

And the basis of his attack is that well it’s true that’s what my regulation says but from time to time I change my mind and indeed as the record on this case showed he changed that often.

On the question whether and otherwise reasonable rule should be set aside because in fact only a very small percentage of the member choose to qualify themselves under it by attending the meetings.

Six months before this election was held, the Secretary stated he conducted a review and had determined that the small percentage should not invalidate the rule precisely because anybody could attend to one or two and if they chose not too that’s their own choice.

After we held our election, he changed his mind again and decided to sue us.

So we got caught betwixt and between.

What we did was lawful when done but unlawful when the Secretary change his mind again.

Mr. Gottesman, if we reach the merits should this Court pass on them or should it remand?

Michael H. Gottesman:

Oh!

We strongly urge you to pass on and then the reason urge it is that the Secretary has now brought lawsuits against 15 Steelworker Local Unions challenging this identical meeting-attendance rule.

They’re in just about every circuit in the United States and we will be involved in endless litigation over this issue which will undoubtedly result in a conflict and will undoubtedly get back here anyway.

And since the issue is before the Court at this time, if you conclude that the issue was properly raised then therefore before you we strongly urge that you reach it and decide it.

Does Mr. Wallace join you in that?

Michael H. Gottesman:

Yes, he does.

I think he does.

One think I’d like to say about percentages because that’s really the only argument that the Secretary’s got here only a small percentage in fact chose to qualify.

The fact is that of the 27 people who sought to run for office 23 qualified and that proves a rather salient fact which is as only a small percentage of people in any institution who want to run for office and if those who do given reasonable requirements for qualifying the best majority will in fact qualify.

What’s the other Union that has a three-year?

Michael H. Gottesman:

I honestly don’t recall.

There is one other with the three-year rule but this election was only a 21-month rule because it was a new Local Union so that the court need not in this case determine the reasonableness of the three-year rule but only a 21-month rule.

Thank you.

Warren E. Burger:

Thank you Mr. Gottesman.

Mr. Wallace you have about three minutes left.

Lawrence G. Wallace:

Thank you Mr. Chief Justice.

The respondents reading of the statute seems to us perhaps to be appropriate one if the House version had been enacted giving the complainant the right to sue but it seems.

We believe the most crucial decision in the legislative history was when Congress decide instead to bring the Secretary into the picture.

Under the respondents reading of this, the only possible effect of bringing the Secretary into the picture is that he may decide not to sue about something that the complainant would have sued about he cannot expand the scope of the lawsuit.

And it seems to us that Congress brought the Secretary into the picture for exactly the opposite reason to expand the scope of the inquiry beyond the limited self-interest of the complainant, to look at the broader public purposes that involve in this statute in order to assure free and democratic elections for everyone.

Now, even look at narrowly it’s true that this complainant as Mr. Justice Harlan pointed out qualified himself but it was a close election for president and the result might well have been different if someone else have been able to run in addition, it might have taken away more votes from his opponent than from himself, as it happens in national elections.

I think and suppose it was made as this and here is a man who’s qualified under the rule that you’re attacking and it’s difficult for me to understand why he be complaining about a rule himself exactly?

Lawrence G. Wallace:

Well, the District Courts reading of his complaint on page 44 of the records said that this what he complained about of the Secretary.

We think that was inaccurate reading and it may have been because he felt that with more candidates in the field he would have done better.

There are people who are helping that and one of the governors will run for president on third party ticket this year because they think they will benefit from it.

But self-interest is not what Congress wanted to promote under this statute and indeed in a very real sense since the Secretary’s policy is to sue only if in his view the members’ complain to the Union had validity in a very real sense, what we are asking for here is to enable the Secretary to consolidate the lawsuits that otherwise would have to be separately brought first to determine whether the election would be set aside and then to determine under what rules the new election would be held which would it seems to us intolerably delay the prompt remedy that Congress wanted to provide.

Mr. Wallace, is there any effort by anybody since the other cases were decided this issue was expressly left open, of course wasn’t it?

Lawrence G. Wallace:

That is correct.

Any efforts made to get Congress do anything about it?

Lawrence G. Wallace:

Not to my knowledge.

Or maybe it was unnoticed that this was a rather close question, I should think?

Lawrence G. Wallace:

That the issue was open.

That is correct but Congress has not acted and there has not been an effort.

There have been attempts to clarify the issue in the courts.

Now, I do want to point out before I sit down since a reference has been to the Secretary’s interpretive manual which is on page 203 of the appendix and it does say that 12 of — that in an attendance requirement for 12 of 24 may be reasonable.

This is not a regulation.

It was not published in the Federal Register.

It was prepared for internal purposes as a guide to fieldworkers in the department and was made public only by virtue of the Freedom of Information Act.

It was not designed to be definitive interpretation of the statute and certainly the respondents have not relied on that provision because neither in that provision or in anything else as the Secretary ever said that a three-year requirement may be reasonable and it’s a three-year requirement that’s involved here and is necessary implicated in the case on the rerun of the election even though the violations alleged was a violation for the application to 21 months to three-year requirement is what is to be applied on the rerun.

I believe my time has expired.

Warren E. Burger:

Thank you Mr. Wallace.

Thank you Mr. Gottesman.

The case is submitted.