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Wirtz v. Local Unions 545

decided: September 13, 1966.

W. WILLARD WIRTZ, SECRETARY OF LABOR, UNITED STATES DEPARTMENT OF LABOR, PLAINTIFF-APPELLANT
v.
LOCAL UNIONS 545, 545-A, 545-B, AND 545-C, INTERNATIONAL UNION OF OPERATING ENGINEERS, DEFENDANT-APPELLEE



Lumbard, Chief Judge, Waterman, and Smith, Circuit Judges.

Author: Lumbard

LUMBARD, C. J..

The Secretary of Labor appeals from an order of the District Court for the Northern District of New York, dated August 16, 1966, which denied the Secretary's motion for a temporary restraining order to enjoin the defendants, Local Unions Nos. 545, 545A, 545B and 545C and the International Union of Operating Engineers, from giving any effect to an incompleted election of officers*fn1 pending the final hearing and determination of the Secretary's action, commenced in 1964, to set aside the election of officers for three-year terms held in 1963. We think the district court should have granted the Secretary's motion. Accordingly, we reverse the order and direct the district court to issue the injunction prayed for and to proceed to hear and determine the merits of the suit with all possible speed.

We think the district court has the power to enjoin a union from holding an election, or from giving effect to one already in process, where it is apparent that the Secretary is likely to succeed in his claim that the election under which the union's officers are currently serving was conducted in violation of the requirements of the Labor-Management Reporting and Disclosure Act of 1959, 29 U.S.C. § 481, where the impending balloting is apparently being conducted under substantially similar conditions, where it also appears that such injunction will not cause serious injury to the unions concerned, and where the Secretary is likely to suffer a very real detriment in his attempt to enforce the law if such restraining order is not granted. Cf. Wirtz v. Local Union 169, Int'l Hod Carriers' Union, 246 F. Supp. 741, 60 L.R.R.M. 2540, 2549-50 (D. Nev. 1965); Goldberg v. Trico Workers Union, 53 L.R.R.M. 2875, 2876 (W.D.N.Y. 1963), followed in Wirtz v. Local 559, United Bhd. of Carpenters, 60 L.R.R.M. 2522 (W.D. Ky. 1965). See Beaird, Union Officer Election Provisions of The Labor-Management Reporting and Disclosure Act of 1959, 51 Va. L. Rev. 1306, 1337-39 (1965). We find all these conditions to exist here, and as the Secretary has acted without undue delay following our recent decision of August 1, 1966 in Wirtz v. Local Unions 410 et al., and Local 30, and the International Union of Operating Engineers, 366 F.2d 438 (2d Cir. 1966), an injunction against giving effect to the 1966 election should issue.

First, it appears likely that the Secretary will succeed in the action he commenced in May 1964 to invalidate the 1963 election. His complaint states that requirements regarding the qualifications of candidates for union office severely restrict available candidates in violation of 29 U.S.C. § 481(e),*fn2 in that:

(1) only those members of defendant Local classified as "parent Local Union" members were eligible for nomination;

(2) only those members of defendant Local who had filed written declarations of intent to be candidates on or before January 15, 1963 were eligible to be nominated at the nominations meeting held in May 1963;

(3) only members who had been in continuous good standing, by paying dues on or before the dues date for each dues period, for one year preceding the election, were eligible to be nominated.

It is alleged that 81% of the entire membership of the Local were not classified as "parent Local Union" members as they belonged to branch locals; and that the net result of the three restrictions listed above was to disqualify more than 95% of the membership, reducing to less than 5% of the total membership of the Local, namely 38 out of more than 1,000 members, the number who were available for nomination.

The complaint asks that the election which was held between May 25, 1963, and June 26, 1963, be declared null and void and that the court direct a new election of all officers of the defendant Local under supervision of the Secretary, pursuant to 29 U.S.C. § 482(c).*fn3

Immediately following the filing of our opinion in Wirtz v. Local Union 410 and Local 30, the Secretary, on August 10, moved in the district court to enjoin the defendants from proceeding with the 1966 election. When Judge Port denied the application on August 16, the Secretary sought a stay from this court and asked for an early hearing of the appeal. Judge Waterman issued a stay on August 23 and arranged for the hearing of the appeal on August 30.

What we said recently in Wirtz v. Local Union 410 and Local 30 about similar restrictive requirements of the International Union of Operating Engineers, the same international union involved here, and the probable effect of such requirements on union elections seems applicable here. The record before us indicates that there is a good likelihood that the Secretary will prevail in his action to set aside the 1963 election as having been held under conditions which violate the LMRDA.

As for possible injury to the union, which may result in staying the 1966 election, it is quite apparent from the undenied assertions in the Secretary's motion papers, and what was said at the argument of this appeal, that the continuance in office of the present officers until the merits of this suit have been adjudicated can make little if any difference in the conduct of the union's affairs in the event that the Secretary's position should not ultimately prevail.*fn4 Thus it is clear that to restrain the union from proceeding with the 1966 election would not harm the union.

On the other hand, we think that the Secretary would be very seriously prejudiced if the 1966 election were permitted to proceed so that those declared elected would take office. The result would be to moot the Secretary's suit by terminating the tenure of office of those serving under the 1963 mandate. Wirtz v. Local Union 410 and Local 30. Although the 1966 officers would have been elected under conditions substantially the same as those which obtained in 1963 (and which, as we have indicated, appear to violate the LMRDA), the requirements of the statute for the bringing of suit would have to be complied with anew with the consequent loss of time in assembling the facts regarding the 1966 election. Moreover, the loss of more than two and a half years in reaching the merits of the controversy between the Secretary and the union, could well cause such ...


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