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January 18, 1967

W. Willard Wirtz, Secretary of Labor, United States Department of Labor, Plaintiff
American Guild of Variety Artists, Defendant

Motley, D.J.

The opinion of the court was delivered by: MOTLEY


This action was commenced on March 18, 1966 by the Secretary of Labor to have this court set aside as invalid the June-September 1965 election of officers and board members of a labor organization, the American Guild of Variety Artists (AGVA), and to direct a new election under the supervision of the Secretary in accordance with the provisions of Title IV of the Labor Management Reporting and Disclosure Act of 1959 (LMRDA) (29 U.S.C. §§ 481-483).

 The Secretary's complaint alleged that AGVA violated Section 401(c) of Title IV LMRDA (29 U.S.C. § 481(c)) in the conduct of the challenged election by: (1) discriminating in favor of certain candidates and against other candidates with respect to the use of lists of members of AGVA, and (2) failing to provide for timely distribution of campaign literature in response to candidates' reasonable requests. The complaint further alleged that these violations may have affected the outcome of the election. LMRDA, Title IV, Section 402(c) (2) [29 U.S.C. § 482(c) (2)].

 AGVA denied in its answer but subsequently admitted that it is a national labor organization engaged in an industry affecting commerce as defined by Section 3(i), (j) LMRDA (29 U.S.C. §§ 402(i), (j)) and, therefore, its elections are subject to the provisions of Title IV. *fn1"

 AGVA challenged the propriety of the exercise of jurisdiction by this court in three affirmative defenses in its answer relating to the question of exhaustion of administrative remedies. These defenses are, in essence, as follows: (1) the complaining members of the union failed and refused to produce proofs or witnesses in support of their case upon invoking their internal remedies, (2) two of the complaining members admitted on the January 17, 1966 hearing that they had no proof or witnesses to support their claims, (3) AGVA continued to investigate the 1965 election complaint, although the complaining members had appealed to the Secretary on January 19, 1966, and duly notified complainants that it had found no evidence to support any of their claims.

 In its answer, AGVA also denied that probable cause existed for the Secretary to believe that violations of Title IV had occurred during the conduction of its 1965 election and challenged the sufficiency of the Secretary's basis for finding probable cause.

 Since this court cannot proceed to the merits of this controversy without its jurisdiction having been properly invoked by the Secretary, these needling jurisdictional considerations are disposed of first.

 The Secretary's authority and consequent power to invoke the jurisdiction of this court to achieve the objective of having AGVA's 1965 election declared void and a new election directed to be held under his supervision is defined by Title IV, Section 402, LMRDA (29 U.S.C. § 482), Calhoon v. Harvey, 379 U.S. 134, 13 L. Ed. 2d 190, 85 S. Ct. 292 (1964).

 The first provision of this section, 402(a), provides that a complaint may be filed with the Secretary by a member of a union complaining of the conduct of an election as violative of Title IV. Such complaint may be filed with the Secretary within one calendar month after one of two occurrences: (1) after the complaining member "has exhausted the remedies available under the constitution and bylaws of such organization and of any parent body" or, (2) after the complainant "has invoked such available remedies without obtaining a final decision within three calendar months of their invocation".

 The second provision of this section, 402(b), requires the Secretary to investigate the aggrieved member's complaint and, "if he finds probable cause to believe that a violation of this subchapter (Title IV) has occurred and has not been remedied," he "shall" file suit seeking the relief described above within sixty days after the filing of such complaint.

 This court finds that on September 11, 1965 the American Arbitration Association (AAA), which conducted the election for AGVA, concluded its count of the ballots. On October 4, 1965, within thirty days of such completed count, as required by AGVA's constitution, three candidates for office and members in good standing, Don George, Margie Coate, and Frances Gaar, filed a written complaint with AGVA alleging several violations of Title IV. *fn2" Filing of this complaint was acknowledged by letter from the union's National Administrative Secretary, Warren Bailey, on the same date on which it was filed.

 The organization's constitution required it to set a date for a hearing on this complaint within twenty days after October 4, 1966, the date of filing. This was not done.

 Under AGVA's constitution, such hearing could have been held before the National Board, the National Executive Committee or a Trial Board, consisting of not less than three National Board members or other members appointed by the National Executive Committee. *fn3"

 At the October 12, 1965 meeting of the National Board, the first meeting after the election, at which the members' complaint was before it, Warren Bailey was discharged and Richard Jones employed by the newly elected officers as National Administrative Secretary.

 Subsequently, Mr. Jones, by letter dated December 3, 1965, advised Mr. George that the National Executive Committee had set a hearing on his complaint for December 13, 1965. This letter was not received by Mr. George until December 6, 1965. The union's constitution requires ten days written notice of such hearing. *fn4" On December 7, 1965, Mr. George, by letter, requested a postponement. He later explained in his complaint to the Secretary that December 13 was a date on which all complainants were scheduled to appear in Saranac Lake, New York, and AGVA was aware of this.

 It was not until December 22, 1965 that Mr. Jones acknowledged receipt of Mr. George's letter of the 7th. On this date, AGVA scheduled a new hearing before its National Executive Committee for January 17, 1966. Ninety days from the filing of Mr. George's complaint without final decision would expire on January 4, 1966. AGVA's letter to Mr. George setting this late hearing date indicates that AGVA was aware of this time element when it wrote its December 22, 1965 letter. In that letter Mr. Jones reminded Mr. George that the union was ready to proceed on December 13, 1965 and that it was he, Mr. George, who caused a postponement. But the facts are that the union had not set a hearing date within 20 days of receipt of Mr. George's complaint as required by its constitution. And, it was the union which set the new hearing date after January 4, 1966, the expiration of the ninety day period - not Mr. George.

 In the face of the statute it should be the union's expectation that its failure to process the complaint and render a final decision within 90 days would give rise to a right to complain to the Secretary.

 January 17, 1966 was chosen as the December 22, 1965 letter indicates on the apparent theory that it was necessary for the National Executive Committee Meeting, scheduled once a month, to hear this complaint. *fn5" The letter states that January 17, 1966 was one day prior to the regularly scheduled meeting of the Committee. But such delay was contrary to the policy of AGVA's constitution which seeks to avoid such delays by making adequate provision for prompt hearings.

 The AGVA constitution provides:

For the purpose of assuring prompt hearings, all hearings authorized or directed in the Constitution to be heard by the National Board or National Executive Committee may, in the discretion of such Board or National Executive Committee, be referred to a Trial Board, consisting of not less than three National Board members, who shall be appointed by the National Executive Committee, for the purpose of hearing and decision. The decision of such Trial Board shall be deemed to be the decision of the National Board.
The Board or National Executive Committee may, in its sole discretion, appoint members in good standing other than National Board Members as some or all of the Members of such Trial Board in any case. Article XX (b)

 Don George appeared at the hearing on January 17, 1966. He admitted that he had no personal knowledge of the matters alleged in the complaint and had received the information on which his complaint was based from the two other complaining witnesses and another union member, Arthur Tracy. Frances Gaar, a complaining member, also appeared and testified at the hearing. She was examined by AGVA's attorney, Mr. Maloney. Miss Coate, another complaining member, also appeared.

 No final determination, in writing, was ever given to the complaining members by the union following this hearing as required by its constitution. AGVA's constitution provides that: "A final determination of the complaint must be made within (10) days after the hearing shall be closed and notice of the decision must be given to the respective parties, in writing." *fn6"

 On January 19, 1966, Don George filed a complaint with the Secretary which incorporated by attachment the original complaint to the union alleging several violations of Title IV.

 The manifest purpose of the ninety day provision was to protect complaining union members from precisely the kind of delay which the union here permitted; otherwise the first provision of Section 402, i.e. 402(a), (29 U.S.C. § 482(a)) requiring exhaustion of internal union remedies would have stood alone. The legislative history supports this conclusion. The Senate Labor Committee in its report upon this bill stated with reference to this provision:

In filing a complaint the member must show that he has pursued any remedies available to him within the union and any parent body in a timely manner. This rule preserves a maximum amount of independence and self-government by giving every international union the opportunity to correct improper local elections. If the member is denied relief by the union or can obtain no decision from the union one way or the other within 3 months, he may complain to the Secretary. Since time is of the essence, no complaint may be entertained which is filed more than 1 month after the union has denied a remedy or the three month period has expired. *fn7"

 The George complaint was, therefore, properly and timely filed.

 In its answer, AGVA alleged that the complaining members did not exhaust the union's remedies because they failed to produce proofs or witnesses in support of their claims at the hearing on January 17, 1966; that George and Gaar admitted that they had no proof or witnesses; that Coate refused to testify and walked out of the hearing.

 The union's constitution did not require production of proofs or witnesses. The constitution merely provides that "an opportunity to be personally present to present - evidence and - witnesses, if any, at such hearing or hearings" shall be given. *fn8" There is nothing in this record to sustain the allegation that Miss Gaar admitted on the January 17, 1966 hearing that she had no proofs or witnesses or that Miss Coate refused to testify. AGVA did not produce on the trial the minutes of the hearing of January 17, 1966. There is consequently no proof in the record, other than Mr. George's admission regarding his knowledge, as to what took place on January 17, 1966. There is no statutory requirement in Title IV that the complaining members present proofs or witnesses. And complaining members have been given no power to subpoena witnesses or the production of documents. Only the Secretary has been given this power. LMRDA, Title VI, § 601 (29 U.S.C. § 521). Wirtz v. Local 191, 321 F.2d 445 (2d Cir. 1963). Here, the complaining members did present to their union a four page lawyer-like complaint alleging several violations of Title IV and detailed allegations of fact in support thereof.

 The Court's language in Wirtz v. Local Union 169, 246 F. Supp. 741, 751-52 (D. Nev. 1965) is applicable here:

The act should receive a practical interpretation governed by common sense and realities. If Congress intended that the union member assert a lawyer-like protest to the Executive Board, covering all the bases by specific averment, and buttressed by evidence of all irregularities in the election, there would be no occasion for an evidentiary investigation by the Secretary. Such an interpretation restricts the Act to a definition of remedies and establishment of jurisdiction in this Court for the vindication of essentially private rights, and de-emphasizes to the point of emasculation the public interest which prompted Congress.

 In addition to the foregoing, it should be noted that these lay members were required to appeal to their adversaries, the officers and members of the Board whom the complaining members charged were unlawfully elected. *fn9"

 The members' complaint was investigated by the Secretary. As a result of that investigation, probable cause was found to believe that violations of Title IV had occurred in the conduct of the 1965 election. Thereafter, this suit was instituted within sixty days of the filing of the members' complaint by Mr. George.

 The right to bring this suit was the right of the Secretary of Labor, and if predicated upon the filing with him of a complaint by a union member within one calendar month after the expiration of ninety days from the filing of a complaint with the union on which no final decision has been rendered, the Secretary's right to proceed under Title IV, Section 402(b) LMRDA (29 U.S.C. § 482(b)) cannot be defeated. Calhoon v. Harvey, 379 U.S. 134, 13 L. Ed. 2d 190, 85 S. Ct. 292 (1964).

 The suggestion of AGVA that this court should not exercise its jurisdiction in this cause since the Secretary had no basis for an investigation or for finding probable cause is unsustainable. This court has previously ruled: "As in other statutes, an action is commenced if the Secretary 'finds probable cause'. His determination as to this is conclusive; defendant cannot question in this Court either his investigation or his determination of probable cause." Wirtz v. Local 30, 34 F.R.D. 13, 14 (S.D.N.Y. 1963). Accord: Wirtz v. Local 30, 242 F. Supp. 631, 633 (S.D.N.Y. 1965), reversed and remanded on other grounds, 366 F.2d 438 (2d Cir. 1966).

 This court concludes that neither the facts in this case nor the applicable law sustains the union's attack on the propriety of the exercise of this court's jurisdiction. Such propriety having been established and trial on the merits of the Secretary's complaint having been held, this court must now proceed to a determination of the question whether the Secretary has succeeded in establishing, by a preponderance of the evidence, that Title IV provisions were violated in the conduct of AGVA's 1965 election, and that there exists in this case "a reasonable probability" that these violations "may have affected the outcome of the election". LMRDA, Title IV, Section 402(c)(2) (29 U.S.C. § 482(c)(2)), Wirtz v. Local 410, 366 F.2d 438 (2d Cir. 1966).

 The section of the LMRDA on which the Secretary rests his case provides as follows:

"Every national or international labor organization, except a federation of national or international labor organizations, and every local labor organization, and its officers, shall be under a duty, enforceable at the suit of any bona fide candidate for office in such labor organization in the district court of the United States in which such labor organization maintains its principal office, to comply with all reasonable requests of any candidate to distribute by mail or otherwise at the candidate's expense campaign literature in aid of such person's candidacy to all members in good standing of such labor organization and to refrain from discrimination in favor of or against any candidate with respect to the use of lists of members, and whenever such labor organization or its officers authorize the distribution by mail or otherwise to members of campaign literature on behalf of any candidate or of the labor organization itself with reference to such election, similar distribution at the request of any other bona fide candidate shall be made by such labor organization and its officers, with equal treatment as to the expense of such distribution. Every bona fide candidate shall have the right, once within 30 days prior to an election of a labor organization in which he is a candidate, to inspect a list containing the names and last known addresses of all members of the labor organization who are subject to a collective bargaining agreement requiring membership therein as a condition of employment, which list shall be maintained and kept at the principal office of such labor organization by a designated official thereof. Adequate safeguards to insure a fair election shall be provided, including the right of any candidate to have an observer at the polls and at the counting of the ballots." (29 U.S.C. § 481 (c)).

 The facts established upon the trial are the following:

 AGVA, acting pursuant to its constitution, held a mail ballot election of officers and one third of its board members August 9 through September 11, 1965. Candidates competing in this election were divided among three slates: the Haley slate, the Davis slate, and the Valentine-Swann slate. This controversy centers around candidates' requests for campaign mailings by the union and the use ...

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