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MORRISSEY v. SHULTZ

April 21, 1970

James M. Morrissey, Plaintiff
v.
George P. Shultz, Secretary of Labor, United States Department of Labor, Defendant


Wyatt, District Judge.


The opinion of the court was delivered by: WYATT

WYATT, District Judge.

This is a motion by defendant for an order dismissing the action for want of jurisdiction of the subject matter and for failure of the complaint to state a claim upon which relief can be granted. Fed. R. Civ. P. 12(b). Affidavits were submitted in support of an in opposition to the motion. The motion must be granted.

 Plaintiff is a member of the National Maritime Union (NMU). Defendant is the Secretary of Labor.

 Plaintiff was a candidate for National Secretary-Treasurer in a NMU election held April 1-May 1, 1966; he was defeated.

 Plaintiff and three other NMU members protested the election within the union and then filed a complaint with the Secretary (29 U.S.C. § 482(a)).

 The Secretary, after investigation, brought an action in this Court(66 Civ. 4519) to set aside the 1966 election (29 U.S.C. § 482 (b)). After trial, Judge Motley set aside that election and directed the Secretary to conduct a new election. 284 F. Supp. 47. The Court of Appeals affirmed on July 29, 1968. 399 F.2d 544.

 The Secretary then formulated certain rules to govern the conduct of the new election. Plaintiff moved in this Court to overrule the Secretary with respect to certain of these rules. Judge Motley denied the motion on November 1, 1968 (59 LC P13,053).

 The election under the Secretary's supervision took place January 2-February 28, 1969.

 Under date of March 25, 1969, plaintiff filed with the Secretary a complaint alleging 14 specific violations of law in the conduct of the 1969 election.

 The Court of Appeals affirmed on April 23, 1969 (409 F.2d 1340) the order of Judge Motley denying the motion of plaintiff to overrule the Secretary as to certain of his rules. The affirmance was on the ground that an individual union member has no standing to bring an action to set aside an election; only the Secretary may do so.

 The Secretary certified to this Court the names of the persons elected and on July 15, 1969 moved before Judge Motley for a decree (29 U.S.C. § 482(c)).

 On the same day, plaintiff commenced this action.

 The complaint avers that in the 1969 election there were specific violations of law. These violations are precisely those concerning which plaintiff had filed his March 25, 1969 complaint with the Secretary, except that the violation averred in paragraph NINTH (o) does not appear to have been the subject of complaint to the Secretary. Plaintiff avers, however, that all were the subject of such complaint. It is further averred that the Secretary investigated and found no probable cause to believe that any violations of law occurred which may have affected the outcome of the supervised election (29 U.S.C. § 482(b)). It is averred that this finding is "arbitrary, capricious, an abuse of discretion . . .".

 The relief sought in the action is a direction to the Secretary to bring an action to set aside the 1969 supervised election and to enjoin the certification of the ...


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