Trbovich v. United Mine Workers

PETITIONER:Trbovich
RESPONDENT:United Mine Workers
LOCATION:Tennessee Governor’s Office

DOCKET NO.: 71-119
DECIDED BY: Burger Court (1972-1975)
LOWER COURT: United States Court of Appeals for the District of Columbia Circuit

CITATION: 404 US 528 (1972)
ARGUED: Nov 18, 1971
DECIDED: Jan 17, 1972

ADVOCATES:
Erwin N. Griswold –
Joseph L. Rauh, Jr. – for petitioner

Facts of the case

Question

Audio Transcription for Oral Argument – November 18, 1971 in Trbovich v. United Mine Workers

Warren E. Burger:

The arguments next in 119, Trbovich against United Mine Workers.

Mr. Rauh.

Joseph L. Rauh, Jr.:

Mr. Chief Justice and may it please the court.

The Courts below held the petitioner, the Head of the Reform Group, within the United Mine Workers could not intervene in the Secretory of Labor suit to upset the 1969 Union Election in which petitioner and his reform group have an intense interest.

The question here on certiorari is whether the courts below erred heard in beholding that the Labor Management reporting and Disclosure Act carves an exception out of Rule 24 (a) and thus bars the intervention of petitioner’s reform group.

On May 29th, 1969, Mr Joseph Yablonski announced that he would run for President of the United Mine Workers of America.

Between May 29th and December 9th of 1969, the date of the election, Yablonski was forced to bring five lawsuits.

In three of these, we got our preliminary injunctions giving us the right to mail out literature, getting Yablonski’s job back after he was fired in reprisal firing and stopping the journal, the United Mine Workers journal from being used as campaign literature.

In one of the five suits, we didn’t get an order but the — before that the Mine Workers had done in court what we asked for, namely to tell what rules of the election would be.

In the fifth suit which was a suit to make to Mr. Bloch and the others payback what they have taken from the union is still pending.

Now in addition to these lawsuits, Mr. Yablonski also sought an investigation by the Secretory of Labor of the massive violations going on during the election but despite the clear language in Section 601 of the LMRDA and despite this court’s statement in footnote 5 in the Labors case that Section 601 applied here and he could investigate and despite the fact that we detailed the violations of law, the Secretory of Labor refused to make any investigation.

So there came December 9th and the incumbents declared themselves elected.

Two points might be mentioned on this election, first, what we had poll watchers, we either broke even or one where we didn’t — we lost by margins up to 50 to 1, second, as was found by the Subcommittee on Labor, the decision was made by pensioners because they voted largely voted for them — 93% voted for Mr. Bloch.

On December 18th, nine days after the election, Mr. Yablonski challenged the election detailing to the labor department, these massive violations.

On January 5th, Mr. Yablonski was found dead.

On Jan 20th, the petitioner adopted the challenge, he had been Mr. Yablonski’s campaign manager and he took over the challenge of the election.

On March 5th, the Secretory of Labor brought the suit based on petitioner’s challenge.

On April 1st, 1970, minors for democracy, the Yablonski reform group, was formed.

On October 2nd, when no progress had been made in the suit and answer hadn’t even been filed, we moved to intervene.

We saw three things then and now as our intervention, that is we seek to do three things by intervening.

First, to assure that the violations asserted by the Secretory of Labor are speedily and vigorously presented to the court.

Second, to raise two additional grounds for upsetting the election, namely that Mr. Bloch by his illegal pension increase had engaged in improper interference with the election and second the voting through illegal locals had made it easy for them to steal the election, I referred at the pension vote because the illegal locals are pension locals.

Third to append a district court decree, ensuring that the new election would not be a repeat of the last one.

In other words, we seek to do three things to assist and push the Secretory of Labor to prove what he has set out to prove, to add two issues and to see that there is a decree, so there won’t be a repeat.

The District Court said no to our intervention, he said at Page 112 of the Appendix that the Landrum-Griffin Act deprived the Court of Jurisdiction to permit our intervention.

The Court of Appeals affirmed without opinion.

The case is here on an expedited schedule because the case is in trial below, this is the status below.

On September 13th of this year the trial started.

After about 5 weeks of trial, it went into recess, it reconvenes this coming Monday, November 22nd, for the completion of the Government’s case.

If we are permitted to intervene, we will not make any delays, we are not going to ask for discovery, in fact, I hereby waive discovery, so that we can go right into the case as it is and we will go on with our case promptly.

Joseph L. Rauh, Jr.:

So in other words, there’s no question of the delays through our intervention.

Potter Stewart:

This isn’t a jury trial isn’t?

Joseph L. Rauh, Jr.:

No sir, it’s in front of Judge Brian.

William O. Douglas:

You said, you want to add two more–

Joseph L. Rauh, Jr.:

Two issues sir.

Well, Mr. Hodgson rather foreclosed that?

Joseph L. Rauh, Jr.:

It’s different from Hodgson.

You said that, they couldn’t add in Hogdson, as I know you didn’t the court said, they couldn’t add in Hodgson because it hadn’t been in the petitioner’s — in the complaint — in the charge.

Here it’s in the charge and question is whether it can go in now that he went ahead.

So that that, that problem is up but it is a different question than Hodgson–

Harry A. Blackmun:

It’s different but it does raise the question whether the Secretory is wholly in control of the issue.

Joseph L. Rauh, Jr.:

That’s correct Your Honor and therefore the–

Harry A. Blackmun:

The other two grounds for intervention might be right.

This one could be–

Joseph L. Rauh, Jr.:

Precisely, we believe — that’s precisely correct Your Honor, we believe that we are entitled to raise those two issues, and that there is — because he has found probable cause.

Therefore, once we get in, we ought to raise it, we ought to elaborate it; secondly we feel less should be left to the district court who has control of how broadly intervention would go and third we say, well, if you we should not, I don’t know, it doesn’t seem why we shouldn’t be in the case.

And therefore, I would make it in that order.

Now, first, we meet the requirements of rule 24 (a) it fits us like a glove, indeed in the lower court, in the Court of Appeals, the government conceded.

In the Court of Appeals, Judge Right asked Mr. Battochi was arguing for the government whether we didn’t meet rule 24 (a) and whether his whole argument wasn’t that the LMRDA sued at us and he said yes.

Warren E. Burger:

Mr. Rauh, is that conceded by your opposition?

Joseph L. Rauh, Jr.:

Well, at this moment, I cannot say that in their opposition to cert, they said that the secretory hadn’t — then we pointed out that it had been done in open court and in their brief they don’t mention it so I suppose it’s conceded that this happened.

We heard with our own ears.

Warren E. Burger:

Was there a transcript of it?

Joseph L. Rauh, Jr.:

They have a record sir but we don’t have access to that, to the Court of Appeal’s record, I think it’s like a record that you all make but I don’t think that will challenge there that Mr. Battochi said, conceded but they can withdraw the confession, I mean I am not arguing that you can’t withdraw a confession sometime during the case.

I didn’t look up the law of confessions because I am really not relying on it.

What I am relying upon is the fact that it’s so clear that we are in – that we meet Rule 24 (a).

That they even–

Potter Stewart:

That is intervention of right.

Joseph L. Rauh, Jr.:

Intervention of right and–

Potter Stewart:

And subdivision tools?

Joseph L. Rauh, Jr.:

Yes, precisely You Honor and for example, our interest is obvious, Our whole life depends on the outcome of this election.

The only question that the government raises while we don’t meet Rule 24 (a).

Now that the confession has been withdrawn, is that, they adequately represented but they base that on the fact that they say there are no private rights but Your Honor, as I have made clear in both the Labors and in the Glass Bottle Blowers case that they are both, that there are private rights, and public rights.

Indeed strangely enough the government, at Page 33 of their brief cites to this proposition of no private rights.

The case that refers to private rights.

At the bottom of Page 33, the government says, in the words of this Court, “the Act was not designed both merely to protect the right of a union member to run for a particular office in a particular election.”

They asserted a vital public interest.

Well, of course, I will be the last person to say, there isn’t a great public interest here, but there is such an obvious private right.

It’s exactly like the parallel case of Schofield, where this court unanimously referred to the inter-blending of public and private rights.

The same inter-blending of public and private rights that you have at the labor board, you have here.

Now, if there are any inter-blending of public and private rights which seems to me obvious then, we are the only one to protect the private rights.

The secretary doesn’t even claim to protect the private rights, he says, they aren’t any.

So I am not — there is a tremendous hostility between the labor department, and our side.

We do not however have to rely on that.

I am not relying on that to show we’re not adequately represented.

I rely on this very simple propositions, that the Landrum-Griffin Act, as this court held, setup both public and private rights, and that we are properly to protect the private rights.

Now as Mr. Justice White said, you may not be able to get everything in there that you want to protect those private rights, that may, we argue the other side, we are still the person to protect the private rights insofar as the District Court in supervising would permit.

Byron R. White:

Well, I take it even if the two issues you want to add, couldn’t be added, now if the secretary ran a new election, he would still have to run a legal election.

And if the situations you claimed just as in prior election, that actually existed is not supposed to exist in the new one, if it was a legal?

Joseph L. Rauh, Jr.:

Yes, Your Honor, and therefore, the remedy and the issues do come together.

That’s quite correct, Sir, in the remedy point, that we want to be in on you will get the problem on the issues themselves —

Byron R. White:

If they can’t be litigated.

Joseph L. Rauh, Jr.:

Yes sir, precisely.

Now, assuming there are private rights as to which have a right to protect them under 24 (a), and we meet 24 (a), then the question comes down, does Landrum-Griffin carve out an exception to 24(a), does it say, it can’t get in?

Now the government’s brief demonstrates beyond peradventure of doubt what no one challenges, namely that we can’t start the suit.

Of course we can’t start the suit, Section 403 and the Landrum-Griffin says it’s a exclusive right of the secretory, but proving that we can’t start the suit, has nothing to do with proving that we have in a right of intervention.

And then what the government’s brief does not direct itself to, is the difference between intervention in starting the suit.

They don’t mention the brilliant article by Professor Shapiro outlining these all of many differences between intervention and starting a suit.

They don’t mention that, they don’t mention this court’s decision and itself to be Phelps v. Oaks, which goes far beyond anything we suggest.

In that case, this court said that in the diversity case, an intervention by a non-diversity person didn’t cause a loss of jurisdiction, and the government doesn’t mention that.

Joseph L. Rauh, Jr.:

The government doesn’t mention anything about the policy of strong enforcement, and having us in there will help strong enforcement, not weaken it.

Look at what we would do.

First we’ll urge speed.

We have every motivation for speed, the government suggests we might want to slow it down or something.

We render a despicable dictatorship here that we want most, is a speedy decision.

We know the union, we can be helpful in the court on that.

We know the violations because we were there when the violations were occurring, and they wouldn’t investigate.

We think it would improve the situation to bring up the issues of pensions and bogus locals and wrap the whole think up as in Schofields.

We can help with the remedies, my goodness, we can’t begin the case.

In other words, we will be the ones who can help with this.

Now if Congress couldn’t have thought that they wanted a one sided thing here.

You have to remember that Boyle is in that courtroom.

The other side, they two fractions says the Yablonski fraction and the Boyle fraction.

Boyle faired that general counsel of the union was the representative there.

But now they have new counsel which was just happened because of one man died, who was representing there but they have new counsel.

The new counsel have already been disqualified in another case because they were too close to Boyle, and I would like to call Your Honor’s attention, we didn’t have time for reply brief, at the expedited schedule.

But may I call Your Honor’s attention to 77 L. R. R. M. 2921 where the new counsel were disqualified from the other case on conflict of interest because they are too close to Boyle, they are going to be there, and if we are not there to get a wholly one-sided operation, exactly what was referred to in cascade about the danger of the Court or the department not going under.

It will be a one-sided struggle in that courtroom with the Yablonski forces totally removed, since 24 (a) covers this, and since 24 (a) covers this like a blanket or we conceded it one time, and since there is nothing in the statute that indicates that you should carve out this exception, we respectably submit that it shouldn’t be —

Warren E. Burger:

Let me a put a question to you, and you could be thinking about it later, having lunch Mr. Rauh, I would like to have a suggestion this afternoon, why it is that you can’t do most of these things without intervention, I am sure you would like to cover that, you won’t be able to accomplish most, if not all of the objectives that you’re seeking without actually having intervention allowed.

If you could address yourself to that after lunch.

Joseph L. Rauh, Jr.:

Yes, Your Honor.

Warren E. Burger:

Thank you.

You may continue.

Joseph L. Rauh, Jr.:

Mr. Chief Justice, in answer to the question placed to me before luncheon, I would answer it this way.

I assume that the question doesn’t go to the first reason for intervention namely to support the labor department in this suit by vigorous actions.

Nor does it go to the last of the three points namely on the remedy, it goes to the second point of our adding issues and why can’t we litigate that somewhere else?

My answer to that, is that while there may be jurisdiction to support the issue in other places, it cannot be in an election context because of Section 403.

For example, take the case of Boyle against Blankenship, where the issue of Mr. Boyle’s misconduct in the election race has already been adjudicated, he has been removed as trustee of the welfare fund because of his manipulations with the pension fund during the elections, but it doesn’t bring it into an election context.

So my answer sir, is that first, it doesn’t apply to first our and third reason.

Secondly on the additional issues, we cannot raise them in a context where they can be utilized in the election suit, and if I may add this point, Schofield was predicated on the assumption that you would get all matters in one place that were appropriate to it.

Joseph L. Rauh, Jr.:

In fact, the basis of Schofield was that there would not be a piecemeal litigation, and I suggest the same thing would be useful here.

Potter Stewart:

May I just interrupt?

Now prior to this particular federal statute, I just wanted to attack and allege during the election — do you have the state law action for it?

Joseph L. Rauh, Jr.:

I believe so, yes it is.

Potter Stewart:

What’s the constitution for violation?

Joseph L. Rauh, Jr.:

Yes I believed for many of these things, not all, but some.

Potter Stewart:

You still have that?

Joseph L. Rauh, Jr.:

No sir, I don’t believe you have that any more sir.

Potter Stewart:

Why?

Joseph L. Rauh, Jr.:

Because anything related to the post election is covered by Section 403.

Potter Stewart:

Not just under that?

You just have to preempt of the remedy under the federal law if you could —

Joseph L. Rauh, Jr.:

Oh, I am quite confident of that sir.

If you would look at sentence it says, 403, the remedy provided for this title for challenging an election already conducted shall be exclusive.

Warren E. Burger:

Where were you from reading from?

Joseph L. Rauh, Jr.:

I was reading from the last sentence of Section 403, it might be on Page 7 Your Honor.

The remedy sir, provided by this title, for challenging an election already conducted shall be exclusive.

I do not —

Byron R. White:

It is just a remedy?

Joseph L. Rauh, Jr.:

Well, if the remedy is issued by the secretary of labors that’s the only remedy there is.

Byron R. White:

(Inaudible) I am just wondering if there is anything, no action would suffice which could be pendent in this action?

Joseph L. Rauh, Jr.:

I do not believe so, Your Honor.

Now, coming I would like–

Warren E. Burger:

Let me pursue that just for a moment Mr. Rauh.

That would include, you mean a suit to trace (Inaudible) out of the way, Union Treasury or the pension funds.

No State remedy survives the Federal Statute.

Joseph L. Rauh, Jr.:

Tracing the funds.

If they are using their funds illegally under Section 501.

We can bring suit.

We have a suit on many of the illegalities?

Warren E. Burger:

But not the state action.

Joseph L. Rauh, Jr.:

No that’s a LMRDA action but it’s not in a context of the election.

In other words, what you can’t do is bring a suit to try to affect the election after it’s over.

That has to be done in here.

And we have to come in here.

Now whether we can raise additional issues is the question that Mr. Justice White put to me and I believe is also in essence of the question that you put to me.

I say we can and I further say if there’s any question about it, it should be left to discretion with District Court.

And I finally say that even if we can and you wont leave it to the District Court, it is only one of the three three reasons why we say we shouldn’t have raised it.

Potter Stewart:

Mr Rauh, I’m puzzled why you should suggest that last sentence of 403 necessarily bars a state action on grounds that will not be heard in this suit, simply if these were grounds which had not been included in the original complaint that is the Intra-union thing under Hudson.

Would you still say that as to those is a Secretary now, under Hudson may not press in the law suit.

That they would not be the basis of a State action.

Joseph L. Rauh, Jr.:

Yes I believe it would not be Your Honor–

Potter Stewart:

My reason is —

Joseph L. Rauh, Jr.:

And I even– yes Your Honor, and I even– and I point your attention to a Amendment that was rejected that the government relies on which is irrelevant to the point that they rely on, but is relevant here on page 26 of their brief.

They referred to an Amendment that was offered, the rights and remedies provided by this title shall be in addition to any and all other rights and remedies of law or inequity.

That was the defeated and the very purpose of that was to save those State law suits.

And that was defeated Sir.

Potter Stewart:

Or may be in the State Courts?

Joseph L. Rauh, Jr.:

But I consider that exclusive in both, in both State and the Federal Courts — I am not saying the issue can’t be raised.

The issue is raised on the pension in a suit to remove Boyle as trustee and it happened but that is not in the election context.

Potter Stewart:

My question —

Joseph L. Rauh, Jr.:

I don’t believe that it’s possible.

I know of no case where it’s happened.

And I would like to just say that we haven’t had to file a reply brief.

We didn’t have time.

I would like to just take one or two points in the government’s brief and make a quick speaking reply.

On page 17 of the Government’s brief, they talk about how we slow it down and distort the planned procedure.

I call Your Honors attention to the fact that in Schofield, the Solicitor General’s brief at page 29 and 30 is almost the direct copy of all terrible things that would happen, if people got in and you let us in.

On page 26, I am at 25, they suggest we left a sentence out of a court but the sentence that we left out says a careful reading of the bill makes clear that, except where the bill provides specifically to the contrary, certain things.

Well, it is our contention of course, that the bill here does not specifically provide that we may not come in.

Joseph L. Rauh, Jr.:

On page 26 is the very statute I mentioned before which the government says has something to do with intervention but in fact what it had to do with was the right of saving your private rights in State Courts under state remedies.

And finally on page 28 there’s a reference to Mr. Cox (ph) who had a great deal to do with the adoption of the statute and Mr. Cox (ph) in the full quotation makes perfectly clear what he’s talking about is the undesirability of piecemeal litigation.

He thinks it should all be in one place and so do we.

In conclusion, I just like to say that leaders and members of minors for democracy, the Yablonski fraction have risked much in this struggle.

This suit is at the height of that struggle.

Nothing has been shown to evidence Congressional intent to keep us from the District Court courtroom and we would urge Your Honors to get us there promptly.

Potter Stewart:

Mr Rauh, did you say that this trial scheduled to resume by Monday?

Joseph L. Rauh, Jr.:

Yes your Honor.

Potter Stewart:

Are you suggesting that we decide these things?

Joseph L. Rauh, Jr.:

I’m not suggesting anything Your Honor.

I think that would be presumptuous of me and I am trying to be —

Potter Stewart:

Well is it being held pending our —

Joseph L. Rauh, Jr.:

No Sir, it is not being held pending your decision.

What happened sir, was that they were trying, start on September 13th.

The Government asked for a delay so they could do some work on their case.

While that delay was in effect counsel for the mine workers died, so they postponed it for that reason, new counsel has been obtained.

I explained Your Honor this morning that the new counsel was that counsel who had been excluded from the 501 case by virtue of being too close to Boyle but they will be there, and we want to be there too.

But as far as the date is concerned, well, of course, I have been presumptions for me to tell you and I am trying to tell you how, but I wouldn’t be presumptuous to tell you when.

Thank you sir.

Warren E. Burger:

Thank you Mr. Rauh.

Mr. Solicitor General.

Erwin N. Griswold:

Mr. Chief Justice, and may it please the court.

Before I begin, I would like to call attention to the brief which we have filed in this case.

For the first time and literally thousands of these briefs that I’ve seen, the table of contents and the table of cases is at the end and instead of at the beginning.

I don’t have any idea why it happened.

The government printing office has printed these for 50-75 years.

As you will recall the case is here on an expedited schedule and when I found this out on Monday, I decided that we would simply leave it as it as and not try to incur overtime and what not and have it reprinted.

I’ve already found that something of an inconvenience myself because naturally you turn to the front and I say I’m sorry but that’s what happened and there are some things even a Solicitor General can’t control.

The case here turns on the construction of a statute I believe which is illuminated by the legislative history.

I do not think that I can demonstrate by logic like that involved in the binomial theorem, that the result for which I contend is inevitable.

Erwin N. Griswold:

I do think or hope that I can make about a stronger case on legislative history, as I can imagine short of demonstration which I think should lead the Court to the conclusion, that the statutory provision should be construed to prevent intervention in this case.

Let me look first at the language of the statute to which not much attention has been paid in the argument so far.

And I’m referring now to the brief of the United Mine workers, the blue covered brief which has the statute’s most comprehensively in the appendix at the end.

Let me say also by a way of opening that in this trial which is now going on, the work for the moment is in recess in the District Court.

The Secretary is vigorously opposing the United Mine workers.

On this particular aspect of it, relating to intervention, the Secretary and United Mine Workers are on the same side, the United Mine workers have yielded the time which they could have had in this oral argument to me because they share our view that this is a suit and the District court which is and ought to be in the control of the Secretary but Mr. Coomes (ph) here is representing the United Mine worker.

Now Section 402.

Potter Stewart:

Can I ask you Mr. Solicitor?

I take it, the trial judge is rather in the dilemma and so we decided?

Erwin N. Griswold:

No Mr. Justice, I’m understand that he is going ahead on the basis of his decision and the decision of the Court of Appeals should the case come to a conclusion before you decide it, I don’t know what would happen.

I assume that if you should decide that intervention is allowed that he would then reopen the record and allow the presentation of the material which Mr. Rauh once —

Potter Stewart:

I gather Mr. Rauh once more than just to present that material, he wants to fight on the side of the secretary.

Erwin N. Griswold:

Yes, he wants to, I assume, but he would I suppose be entitled to recall witnesses for cross examination and other items of that kind.

All of this I should take was within the control of the trial judge and I have not heard any suggestion that it is not a matter which can be worked out.

Potter Stewart:

There was no jury involved.

Erwin N. Griswold:

Certainly, no jury involved, and certainly if the court’s decision is adverse to our position, the secretary will cooperate and trying to put the court’s decision into practical effect.

Section 402 of the statute which is the Labor-Management Reporting and Disclosure Act of 1959, quite a landmark in our labor relations law, Section 402 begins on page 5a of the Appendix to the brief, and it says, that a member of a labor organization who has exhausted his remedies in the union, and who has invoked his available remedies without obtaining a final decision within three calender months, may file a complaint with the Secretary under Section 481.

And Section 481 sets out in considerable details, standard for the conduct of elections.

402 (b) provides that the Secretary shall investigate and if he finds probable cause to believe that a violation has occurred, he should bring a civil action against the labor organization in the District Court of the United States.

And then Section 402 (c) provides that if upon a preponderance of the evidence after trial on the merits, the court plans that an election has not been held within the time prescribed by Section 481 or 482, that the violation of Section 481 of this title may have affected the outcome of an election.

The court shall declare the election, if any to be void, and direct the conduct of a new election under supervision of the Secretary, and so far as lawful and practicable in conformity with the constitution and bylaws of the labor organization.

And then I proceed next to Section 403 which is on the top of page 7a, there is a first sentence there which is not relevant to this case.

But the next two sentences, I think are both highly relevant, “Existing rights and remedies to enforce the constitution and bylaws of a labor organization with respect to elections prior to the conduct thereof shall not be affected by the provisions of this sub chapter, whatever rights there are, State or Federal still remain”.

And then the next sentence, “The remedy provided by this sub chapter for challenging an election already conducted shall be exclusive.

William O. Douglas:

Do you also agree with Mr. Rauh that, that preempts any state actions?

Erwin N. Griswold:

As to a suit after the election, yes Mr. Justice.

As to a suit prior to an election, not at all, because it does not relate to a suit prior to an election.

Now, I agree that it does not say shall be exclusive and this shall apply to intervention.

At no place does the legislative history or anything else contain the words, and this shall apply to intervention, that’s why I say I can’t mathematically demonstrate the result.

But I want to go ahead with the legislative history of the statute to show that, that language was deliberately intended by Congress, it was not incidental or accidental, and that the scheme which Congress meant to carry out by this statute is one which would be frustrating by allowing intervention of other parties and the Secretary.

Erwin N. Griswold:

What Congress intended was not merely that the secretary should file a suit but that he should control the suit, and he will not control the suit if intervention is allowed.

If Mr. Rauh’s plan can intervene any other union member, can intervene including members of the opposition and the scheme which Congress deliberately set up in this difficult and delicate area, would I think be clearly frustrated.

Now the Labor-Management Disclosure Act perhaps can be said to find its legislative geneses in a bill which was introduced by Senator Kennedy in May 1958.

And this contains essentially the language which is now found in Section 402, with only a very few changes.

Senator Kennedy said that, there had been evidence that some few unions have not conducted their affairs in a democratic manner and since free secret elections are the cornerstone of the democratic union movement, it appears appropriate that public safeguards be established, and that is the first legislative statement with respect to the language.

The bill introduced in May 1958 contained the language that the remedies enunciated therein were to be exclusive, so that only the Secretary that brings such a civil action.

Now this incidentally applied both before and after elections.

Nothing much came of that bill but in June 1958 there was introduced another bill as 3974 of that Congress known as the Kennedy-Ives Bill.

Senator Kennedy had build up support within the senate and this was passed by the Senate on June 17, 1958, seven days after it was introduced, obviously showing that it had been worked on and agreed to by substantial number of Senators.

And the committee report with respect to Section 301 in that bill is now Section 401, states that these provisions, “are to be enforced by the Secretary of Labor upon complaint of any union member” and the report further stated explicitly that, “private court litigation would be precluded”.

In the course of the senate debates on June 12, 1958 Senator Kennedy presented some of the reasons for giving the Secretary the sole authority.

Senator Wiley expressed his concern that this would involve the destruction of the present rights of union members to seek State and Federal Court relief.

And Senator Kennedy responded that such relief was costly and time consuming as a practical matter unsatisfactory.

He said that, the bill chose rather to “provide the right to appeal to the Secretary of Labor, whenever a member believes that his rights as provided in the bill in the case of an election have been denied to him”.

Now the petitioners in this case do refer in their brief on page 28 to a statement of Senator Kennedy in the debate which they say points in their direction.

But as Mr. Rauh has already indicated in giving the quotation on page 28 of their brief, they omit entirely the immediately preceding sentence, which contains the language which he read except where the bill provides specifically to the contrary.

And we contend that this bill does provide that with respect to post election relief, that the enforcement rights are solely in the Secretary.

Potter Stewart:

And I gather Mr. Solicitor, does that position take you to the point however inadequate?

Let’s assume maybe the representation of the Secretary —

Erwin N. Griswold:

Mr. Justice there is always of course the situation of no good faith of complete walking away and not meeting your responsibility.

Potter Stewart:

Well, I wasn’t thinking so much of that is, in this case Mr. Rauh urges on us that there are two question, two issues that that side thinks ought to be submitted and litigated, and that I gather are not to be.

Erwin N. Griswold:

Yes, Mr. Justice.

Potter Stewart:

And you have agreed with him that the last sentence for 403 precludes their seeking a remedy anywhere else with respect to this election.

Erwin N. Griswold:

Anywhere, no Mr. Justice, we do not and I think that’s important.

With respect to the question whether the past election shall be set aside, we say it does preclude them from seeking any remedy anywhere.

But we see no reason why they are not free to maintain a suit with respect to the forthcoming election.

Section 403 completely preserves all rights with respect to any future election and we know of no reason why they cannot maintain a suit in the appropriate court.

I don’t know whether it would be state or Federal to raise the question with respect to the pensionary unions.

They already have the suit pending with respect to the validity of the pension increased, it’s true it’s not focused on the election, but it can be.

And they have pointed out in their brief that before this election, Mr. Yablonski was forced to initiate five suits in the District Court for the District of Columbia to secure the rights guaranteed to him and other UMWA members under the Act.

Potter Stewart:

Were these two issues that they want litigated in this action?

Aren’t they addressed to setting aside the past election?

Erwin N. Griswold:

They are addressed to setting aside the past election, but the secretary having made investigation has decided that these are not grounds upon which he thinks it appropriate to proceed, and our position is that the Congress has made him the exclusive judge of that.

Potter Stewart:

That’s what I was trying to get to.

I gather then that as to this past election those two grounds may not be asserted anywhere.

Erwin N. Griswold:

As to the past election, I would agree.

Potter Stewart:

Doesn’t that suggest that there is at least a question under the last sentence of 24, unless the applicant’s interest is adequately represented by existing court?

Erwin N. Griswold:

Well, that – you meant under Rule 24 with respect to —

Potter Stewart:

I might rule —

Erwin N. Griswold:

And that — my answer to that would be impart that Congress has allocated the determination of this question to the Secretary, and that under Rule 82 and the Enabling Act and decisions of this court, the rule cannot extend the jurisdiction of the District Court which is limited exclusively to actions by the Secretary.

And that, that would be inconsistent with the scheme with the statute has provided.

I would call attention to the language of Rule 82, “These rules shall not be construed to extend or limit the jurisdiction of the United States District Courts”, and I would suggest that to say that the petitioners here can intervene under Section 42, although it is established that the suit by the Secretary is the exclusive right, would be extending the jurisdiction.

And I would call attention to cases such as (Inaudible) and Wilson and United States v. Sherwood, both in 312 US.

And in SEBAC and Wilson the court referred to the inability court by rule to extend or restrict the jurisdiction as conferred by statute.

And if this statute means what it says that the suit by the Secretary shall be the exclusive remedy, then I think that the construction of Rule 24 for which Mr. Rauh contends would amount to an extension of the jurisdiction, and in effect an amendment of Section 403 as Congress has passed it.

Byron R. White:

Mr. Solicitor General, suppose that we disagreed with you that Rule 24(a) was irrelevant in this case, but agreed with you that the Secretary is the only one who can bring the action, he is the only one who can specify the issues, but nevertheless in trying out those issues that he controlled.

24(a) should have its normal operation.

Would intervention then under 24(a) be justified on normal grounds?

Erwin N. Griswold:

I am not sure Mr. Justice.

I think it’s hard to say.

Mr. Rauh says that my predecessor who represented the Secretary in the Court of Appeals conceded that in the Court of Appeals.

I am told that he does not so understand what he said, but I think it is a question which is very difficult for us.

It is really a question whether the petitioners here are adequately represented by the Secretary.

Now, it is perfectly plain that the Secretary is not presenting every issue and every ground.

Byron R. White:

Well, who decides the issues?

Erwin N. Griswold:

Alright, is not presenting every argument that they would like to have presented, and I think that turns somewhat upon the question, what you mean by representation, particularly in the light of a statute which prescribes that a remedy shall be the exclusive remedy.

Mr. Rauh refers to an article by David Shapiro in which he holds open this question, but it isn’t clear to me that Mr. Shapiro gave adequate weight not merely to the language of the statute that it shall be the exclusive remedy, but also to the very clear legislative history.

I think the question of intervention is a question of balance between many factors.

Byron R. White:

Well, as I read the opinion below, they did not consider 24(a) on its own footing, except with respect to the financial records and reports issue.

As with respect to the other part of the case, they just said 24(a) was irrelevant in the sense that the waiver statute itself precluded application of 24(a).

Erwin N. Griswold:

I think that’s very close to accurate Mr. Justice and if one reads exclusive, to mean exclusive, then Section 24(a) becomes irrelevant.

Byron R. White:

If the court decided that; that was error, I suppose 24(a) should be considered, I suppose the Court of Appeals should consider it first.

Then entirely upon the nature of the remand which this court made; if this court remanded it to the Court of Appeals to consider, I assume they would consider.

Warren E. Burger:

But what would you think would be the scope of their consideration on the subject?

Erwin N. Griswold:

I can’t quite say Mr. Chief Justice.

If the court says that exclusive doesn’t mean exclusive, I find it somewhat difficult to see how a court could say that any union member cannot intervene if he thinks he has a point of view which isn’t going to be fairly represented.

This gets a little bit like the argument in the case which I presented yesterday.

Here is a case where I think the Congress [Voice Overlap]

William O. Douglas:

Mr. Solicitor General that whether you are right or wrong, but you certainly are consistent.

Erwin N. Griswold:

Not always Mr. Justice, but —

William O. Douglas:

I mean yesterday and today.

Erwin N. Griswold:

Between yesterday and today, I am.

This is a —

William O. Douglas:

The agencies of government can take of themselves and the outsiders must be kept out.

Erwin N. Griswold:

Not quite Mr. Justice.

When Congress say the outsiders must be kept out.

When Congress deliberately allocates a function to be handled by the Secretary and says that, that shall be exclusive in post election suits, it does seem to me that it is entirely appropriate for the court to say that this is a matter which can properly be allocated by Congress to the exclusive handling by the Secretary.

I repeat this does not foreclose Mr. Rauh and his clients from raising and whatever appropriate court there is any issue including these two issues in advance of any election, including the election which will be conducted by the Secretary.

Indeed, I am not sure that it precludes the Secretary from filing a suit in connection with the holding of the election under this suit in which he in effect asked for an instructions, asked for a declaratory judgment.

This is somewhat complicated by this court’s decision last Spring in the Hodgson v. the Steelworkers case which says that the Secretary can’t raise issues in the 402 proceeding which were not presented to him by the employee.

But I am not sure after the 402 proceeding is completed, and it has been decided that there shall be a new election that the Secretary cannot then raise in court questioned with respect to the conduct of that election.

And I know of no reason why Mr. Rauh and his clients cannot raise those questions in court with respect to the conduct of an election.

Now let me say that the position advanced here by Mr. Rauh is a reasonable one, it was the view of a large part of Congress and the bill passed the House once and depending how you interpreted, I think twice the way he says.

But the other view is the one which was finally enacted by Congress and both Houses adopted.

We have set out in our brief more legislative history including important statements by Professor Cox who was well known to be Senator Kennedy’s immediate advisor and the draftsmen of the Act, and among other things, he said that the purpose of the bill was to centralize control of the proceedings in the Secretary of Labor.

It was also Professor Cox who recognized, and I assumed prevailed on Senator Kennedy to except the change so that the exclusive suit by the Secretary was made applicable only to post election proceedings.

The House adopted the bill in such a way that the employee could bring the suit at anytime, there were hearings before the House Committee in which Mr. Railey(ph) made essentially the same point that Mr. Justice White has been making with me.

He said, “There is all the difference in the world between having an administrative remedy and being able to control the litigation yourself.

Would you not rather prepare the case yourself and present it, then go to an administrative agency?”

The House adopted the bill that way.

Erwin N. Griswold:

It went to conference and it came out of conference in the form of the Senate Bill with the language in the statute to which I have referred, which seems to me to be, to use a word which just came into our law recently,be to be facially conclusive, the exclusive suit by the Secretary.

And which I believe is thoroughly supported by the legislative history.

It is perfectly true the legislative history does not say and there shall be no intervention, but it seems to me to be very clear or indeed the sort of question which the courts are well qualified to decide, that it was the contemplation an expectation of Congress that there should not be any sort of interference with the suit brought by the Secretary.

But this was allocated to the Secretary for a very real public purpose.

After all, when there is a dispute about an election, after the election has been held, there is a great deal of feeling in many quarters and if you then have the big complete comprehensive lawsuit in which all the issues are raised and all the emotions are led out, things become not only difficult but perhaps unsatisfactory.

And the purpose was to filter this through, the Secretary of Labor, and I may say that in this case he made an enormous investigation with respect to what went on here.

And then have the Secretary decide which issues he thinks are the ones which should be presented in court, and if we go through all that process, but nevertheless the union disputants can intervene on both sides and convert the lawsuit for setting aside an election and providing for the conduct of a new election, convert that into a general intra-union dispute settlement procedure.

We have, it seems to me, destroyed the very remedy which Congress deliberately chose and established in these particular cases.

Now I agree that rule 24 (a) is there, it’s not unimportant, I don’t say it is irrelevant.

Rule 82 which seems to me, restricts its scope and I think that although rule 24 (a) might in other settings be adequate to allow for intervention here, generally of course intervention is encouraged, it is welcomed, that was the function of enlarging the scope in rule 24 (a).

But here there is a very special reason for keeping the control of the suit in the Secretary.

That reason was explicitly intended by Congress by a close division; the House one way, the Senate the other way, we do not know what went on in the conference to lead to the choice to the Senate Bill.

We do know that both Houses of Congress approved the Senate Bill and provided in the laws, it has been since 1959, that the suit by the Secretary should be exclusive and we think that exclusive means that there should not be intervention.

Warren E. Burger:

Mr. Rauh.

Joseph L. Rauh, Jr.:

May I please the court.

Warren E. Burger:

You have six minutes left.

Joseph L. Rauh, Jr.:

Thank you sir.

The learned Solicitor General has demonstrated that we can start suit, and when he says that the Bill passed the House the way we see, it didn’t pass the House the way we see.

It passed the House saying the individual could start the suit.

Nobody ever considered the position we take and – that the secretary can start the suit but intervention under 24 (a) is something else.

I would not have raised the question that the Secretary is vigorously opposing the UMWA.

But since Mr. learned Solicitor General raised that issue, I have to state to the court that in our opinion, the case is not being prosecuted with the vigor it should.

I simply make the point, I have refrained from saying that but I cannot let the record stand with only the Solicitor General’s statement that the Secretary is so prosecuting of what we feel so strongly that it is not.

Most —

William O. Douglas:

This is apart from the two issues that the —

Joseph L. Rauh, Jr.:

Yes, precisely sir, however, we don’t need that point.

We have private rights and the Solicitor General in oral argument, did not suggest that we don’t have private rights.

He suggested that under 24 (a), he was arguing that the word exclusive prevents intervention although it doesn’t say it, but we have private rights and we are entitled to represent those rights because the Secretary doesn’t even claim he is representing those rights, all applied from the fact that we do not agree that the case is being vigorously presented.

I only answered it because I didn’t want the record to stand one way on that matter.

I don’t think it is important.

Joseph L. Rauh, Jr.:

Now Mr. Solicitor General states the union disputants could intervene on both sides, but the union disputant is there on one side, that’s what the point is, Mr. Boyle is in the courtroom and we are not.

It’s as simple as that.

It would be one thing if counsel — for Mr. Boyle, counsel for the Union were independent, Mr. Boyle but it’s Mr. Boyle’s counsel, they are fighting for Mr. Boyle and we are not there.

It would be absolutely hopeless that the case could be a straight down the middle, Judge Brieant has the advantage of Boyle in the courtroom, he doesn’t have the advantage of the Yablonski.

Now, finally and most importantly, on rebuttal, this idea that we could start a suit for the fourth coming election, now if Your Honors, please would you look at item E of Section 402, it’s on our brief, for example, at the bottom of page 6.

It says, if upon a preponderance of the evidence, the court finds that there should be a new election, the court shall declare the election if any to be void and direct the conduct of a new election.

Now, how on heaven’s name can we start a suit after that?

You will have a decree giving the conditions of the new election.

What would time period be, a couple of months?

The desire of Congress for speed is evidenced by a provision in 402 (d) that there can’t even be a state pending appeal.

The minute the District Judge enters the order, saying that there is to be a new election and enters a decree giving the conditions of that new election, it will be held, the suggestion that we then start a suit about a forthcoming election, and a election that can’t be stayed is just impractical and unrealistic.

The fact of the matter is if we can’t get there, we can’t go anywhere.

Thank you.

Warren E. Burger:

Thank you Mr. Rauh, thank you Mr. Solicitor General.

The case is submitted.