The opinion of the court was delivered by: MOTLEY
This is an action brought by the Secretary of Labor to set aside the April-May 1966 election of officers of the National Maritime Union of America (NMU). The Secretary's authority and the jurisdiction of this court stem from Title IV of the Labor Management Reporting and Disclosure Act of 1959 (LMRDA), 29 U.S.C. § 482(b).
The Secretary's complaint was filed after an investigation during which he found probable cause to believe that the NMU had violated two sections of the LMRDA, i.e., 29 U.S.C. § 481(a) and (e).
His investigation resulted from complaints filed by four members of NMU who had exhausted their remedies within the union and, within one calendar month thereafter, had filed complaints with the Secretary alleging violations of the LMRDA.
After a trial, this court finds and concludes:
1) all of the complaining members exhausted their internal remedies but only three complained to the Secretary of the issues raised by him in this action; 2) NMU's self-nominating requirements, enforced against anti-administration candidates during the 1966 election, and NMU's prior office holding requirement, which is a prerequisite for holding national office, violate 29 U.S.C. § 481(e); 3) there exists a reasonable probability that these violations may have affected the outcome of the election; and 4) failure to elect the field patrolman in Panama, the branch agent in Yokohama, the officials in charge of the ports in Greenville, Memphis, Joliet and Paducah, and the patrolmen violated 29 U.S.C. § 481(a). This court, therefore, declares NMU's 1966 election void and directs the conduct of a new election, under the supervision of the Secretary, so far as lawful and practicable in conformity with those applicable provisions of the Constitution and By-Laws of NMU, except as to those provisions of the Constitution which this court finds herein violate 29 U.S.C. § 481(a) and (e). 29 U.S.C. § 482(e).
Findings of Fact and Conclusions of Law
The NMU was founded in 1937 when its organizers disagreed with and withdrew from the International Seamen's Union. It has a total membership of approximately 47,500. NMU is composed principally of unlicensed seamen who serve on board American flag vessels sailing from all coasts, the Great Lakes, and various rivers of the United States. It is organized on a nation-wide basis. It has subdivisions known as branches and sub-branches headed by a branch agent or field patrolman who is elected by the entire membership. (NMU Constitution, 1965, Art. 7, Sec. 17; Art. 13, Sec. 5.). It does not have locals which elect local officers. We are, therefore, not concerned in this case with the eligibility requirements for officers in union locals. We are concerned here with the election of 8 national officers, i.e., president, secretary-treasurer, 3 vice presidents, 3 national representatives. In addition, the election involved 13 branch agents and 13 field patrolmen. We are also concerned with the question whether the branch agent in Yokohama, the field patrolman in Panama, the officials in charge of the ports in Greenville, Memphis, Joliet and Paducah, and all of the 73 patrolmen should have been elected.
NMU bargains collectively with the federal government and shipping companies which operate locally as well as nationally and internationally. These collective bargaining agreements cover unlicensed personnel employed by the federal government and various shipping companies engaged in interstate and foreign commerce; NMU is, consequently, covered by Title IV of the LMRDA. 29 U.S.C. § 402(i), (j). NMU operates through 33 port offices or branches located on the Atlantic and Pacific coasts, on the major rivers and lakes, and in Puerto Rico, Panama, the Canal Zone and Yokohama, Japan. There is usually a port agent or a field patrolman assigned to each port or branch. Port agents and field patrolmen are required by the NMU Constitution to be elected. Prior to 1963, patrolmen were also required by the Constitution to be elected. Patrolmen are now appointed by the national president, subject to approval by the national office. There are presently 73 patrolmen appointees.
NMU has a national convention every three years during the month of October, attended by elected delegates, which is the supreme governing authority of the union. The national council, composed of the 8 national officers, all officers in charge of ports, and one representative from each labor organization, chartered in accordance with Art. 7, Sec. 11, of the Constitution, is the governing body of NMU between conventions. The national office, which is composed of the 8 national officers, is the governing body of NMU between meetings of the national council. (NMU Constitution, 1965, Art. 5, Secs. 2, 3, 4).
NMU has chartered, in accordance with Art. 7, Sec. 11, of its Constitution (1965), two affiliates: The Brotherhood of Marine Officers and the United Marine Division (apparently consisting of tug boat workers). These are autonomous groups which elect their own officers. The officers elected by these affiliates are not involved in this action. NMU members do not participate in the election of the representative of these affiliates who sit on NMU's national council. There is no challenge here involving the elective representatives of these affiliates to the national council. These affiliates did not participate in NMU's general election of 1966.
2. The 1966 Election of Officers
The 1966 election of officers was conducted between April 1 and May 31, 1966, by the Honest Ballot Association. There was balloting in 32 ports, 28 of them in the continental United States; the others were in San Juan, Puerto Rico, Panama and Christobal, Canal Zone and in Yokohama, Japan. There were 34 officers elected - 8 national officers, 13 branch agents, and 13 field patrolmen. There were 46 candidates on the ballot for these 34 positions. Polls were open in each port from 9 A.M. to 5 P.M., Monday through Friday.
The results of the 1966 election of officers were as follows:
Joseph Curran (Unopposed) 16,537
Shannon J. Wall 11,205
James M. Morrissey 5,875
Mel Barisic 12,424
James Martin 12,005
Rick Miller 11,498
Joseph Padilla 6,133
NATIONAL REPRESENTATIVES (3)
Robert Nesbitt (Unopposed) 13,292
Peter Bocker (Unopposed) 12,462
Leo Strassman (Unopposed) 12,285
Gordon Humphrey 12,988
Joseph Labaczewski 11,406
Gaston Firmin-Guyon 4,569
Louis Parise (Unopposed) 13,870
Thomas Martinez (Unopposed) 14,394
James Q. Rice (Unopposed) 13,817
Layton Overstreet (Unopposed) 13,661
S.D. "Tex" George 9,600
Harry Alexander 5,509
John T. Kelly (Unopposed) 13,537
Joseph Patton 10,180
Richard Flanagan 4,261
Kirby-Smith McDowell (Unopposed) 13,476
William Neill 9,617
Thomas Monaghan, Jr. 4,104
Joseph V. Reddy 9,370
Amelda Perry 4,304
John C. Hughes (Unopposed) 12,784
FIELD PATROLMEN (13)
Jerome Zimmer 11,174
Edward J. Dwyer 11,079
John J. Sheehan 10,917
James McKinley 10,913
Manuel Peters 10,685
Michael McNerney 10,616
Guillermo Ryan 10,558
Woodrow P. Nayer 10,520
Ralph Turchiano 10,330
Albert Jackson 10,099
John Edward Riezinger 9,929
Max Sykalski 9,570
Louis Streho 9,016
James O. Bennett 6,507
Jack E. Burtis 5,019
Guillermo Cuadra 4,517
Bobby W. Cawthorne 4,629
Basilio Trujillo 4,630
There is no challenge in this case to the manner in which the balloting was conducted. There is likewise no dispute with respect to the result attributed to each candidate. The challenge here is to: 1) the procedures for nominating candidates for office; 2) the eligibility requirements for office; and 3) the failure to hold an election for certain offices.
3. Crucial Amendments to the NMU Constitution
Prior to enactment of the LMRDA in 1959, the NMU Constitution then in force contained the following relevant eligibility requirements for all offices:
Any member who has been in good standing continuously for one (1) year immediately preceding the election * * * shall be eligible to hold office * * *. (Art. 9, Sec. 1.)
Following enactment of the LMRDA in 1959, the Constitution was amended in 1960. The first pertinent amendment was a prior office holding requirement which was made a condition precedent to eligibility for each of the 8 national offices.
Any member who has been in good standing continuously for one (1) year immediately preceding the election * * * and has served at least one (1) full term as a Branch Agent, Field Patrolman or Patrolman, shall be eligible to hold a National Office. * * * (Art. 9, Sec. 1(b).)
In 1960, the Constitution was also amended to provide for a 4 year term for each office as opposed to the prior 2 year term. (Art. 11, Sec. 3.) The 1959 Constitution did not contain a specific term of office provision. The fact that officers were elected every two years prior to 1960 is gleaned from the evidence of such elections and the section of the 1959 Constitution dealing with nomination of officers which provided:
Biennially during the month of February there shall be nominated, from ship and shore, candidates for office * * *. (Art. 10, Sec. 1).
The 1959 Constitution listed "the officers to be elected in the general elections" as follows:
2. National Secretary-Treasurer
4. Three National Representatives
5. Branch Agents for each Branch
8. All other permanent officers of whatever description. (Art. 11, Sec. 1.)
The 1960 Constitution made a change which divided the officers into two categories as follows:
Section 1 - National Officers: National Officers of the NMU shall consist of:
(2) National Secretary-Treasurer
(3) Three (3) Vice-Presidents
(4) Three (3) National Representatives
Section 2 - Other Officers: The other officers shall consist of:
(1) A branch agent for each branch
(2) Field Patrolmen as numerically and geographically determined by the National Council.
(3) Patrolmen as numerically and geographically determined by the National Council.
In 1963, the Constitution was amended to provide that patrolmen "shall be appointed by the National President with the approval of the National Office", ...