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SHULTZ v. RADIO OFFICERS' UNION OF THE UNITED TEL.

April 19, 1972

George P. Shultz, Secretary of Labor, United States Department of Labor, Plaintiff,
v.
Radio Officers' Union Of the United Telegraph Workers, Defendant


Pierce, D. J.


The opinion of the court was delivered by: PIERCE

MEMORANDUM OPINION

PIERCE, D. J.

 This is an action brought by the Secretary of Labor pursuant to the Labor-Management Reporting and Disclosure Act of 1959, 73 Stat. 519, 29 U.S.C. § 401 et seq. He seeks to set aside as null and void the 1969 election for the offices of President and National Committeeman -- Oakland of the Radio Officers' Union (hereinafter ROU) under 29 U.S.C. § 482 (b). The Secretary bases his complaint upon two separate incidents of alleged election misconduct, each of which he asserts "may have affected the outcome of the election." He also seeks an order directing defendant to conduct a new election for the aforesaid offices under his supervision.

 I. FINDINGS OF FACT

 1. At all times relevant to this action, defendant, Radio Officers' Union, was an unincorporated association, maintaining its principal office at 225 West 34th Street, City of New York, County of New York, State of New York, within the Southern District of New York.

 2. At all times relevant to this action, defendant was a local labor organization engaged in an industry affecting commerce within the meaning of section 3(i), 3(j), and 401(c) of the Labor-Management Reporting and Disclosure Act of 1959 (hereafter referred to as the "LMRDA"), 29 U.S.C. §§ 402(i,j), and 481(c).

 3. At all times relevant to this action, defendant was chartered by and subordinate to the Commercial Telegraphers' Union, AFL-CIO (hereafter referred to as the "International"), an international labor organization engaged in an industry affecting commerce within the meaning of sections 3(i), 3(j), and 401(c) of the LMRDA, 29 U.S.C. §§ 402(i), 402(j), and 481(c).

 4. During the period from May 15, 1969, through December 1, 1969, defendant had approximately 830 members.

 5. During the period from May 15, 1969, through December 1, 1969, defendant was a party to collective bargaining agreements with approximately 80 companies that owned and operated cargo ships and tanker ships.

 6. On various occasions during the period from May 15, 1969, through December 1, 1969, a majority of defendant's active and MSTS members were employed aboard cargo and tanker ships operating in international waters by companies with whom defendant had collective bargaining agreements. During the foregoing period, the number of ships operated by such companies was approximately four hundred.

 7. In accordance with its by-laws then in force, defendant conducted a general election of its officers during the period from May 15, 1969, through November 30, 1969, (hereafter referred to as the "1969 election"). The period from May 15, 1969, through August 15, 1969, was the nominating period, and the period from September 1, 1969, through November 30, 1969, was the balloting period.

 8. During the period from May 15, 1969, through August 15, 1969, defendant's members nominated candidates for the following offices in accordance with the procedures set forth in article 11 of defendant's by-laws: President; National Secretary-Treasurer; and two National Committeemen for each of New York, New Orleans and Oakland.

 9. All active, inactive, and MSTS members of defendant in good standing were eligible to be nominated for each of the offices set forth in paragraph 8 hereof. In order to be nominated, section 5 of article 11 of defendant's by-laws required that a member in good standing receive at least ten nominating votes.

 10. In accordance with the procedures set forth in article 11 of defendant's by-laws, R.C. Smith (hereafter sometimes referred to as "Robert C. Smith"), a member of defendant, was nominated as a candidate for the office of President of defendant in the 1969 election. Pursuant to section 4 of article 12 of defendant's by-laws, Mr. Smith notified defendant's National Secretary-Treasurer, in writing, before August 20, 1969, that he accepted the nomination and that he desired to have his name placed on the official election ballot as a candidate for the office of President. At all times relevant to the 1969 election, Mr. Smith was eligible under the provisions of defendant's by-laws to have his name placed on the official election ballot as a candidate for the office of President, and to hold that office if he were elected.

 11. In accordance with the procedures set forth in article 11 of defendant's by-laws, Lester F. Parnell, a member of defendant continuously in good standing during the period from September 1, 1968, through September 1, 1969, was nominated as a candidate for the office of National Committeeman for Oakland, California. At all times relevant to the 1969 election, Mr. Parnell was eligible under the provisions of defendant's by-laws to have his name placed on the official election ballot as a candidate for the office of National Committeeman for Oakland, California, and to hold that office if he were elected.

 12. At the time of his nomination, Lester F. Parnell was retired and he was receiving a pension from defendant's pension and welfare fund. The pension was Mr. Parnell's only source of income in 1969. Prior to his retirement, Mr. Parnell had been employed by defendant as its Port Representative for Oakland, California, for approximately 20 years.

 13. Shortly after Lester F. Parnell accepted his nomination as National Committeeman for Oakland, California, and indicated in writing his intention to run for that office, he received a telephone call from Edward F. Fitzgerald, defendant's National Secretary-Treasurer. Mr. Fitzgerald stated to Mr. Parnell that he should withdraw acceptance of the nomination because he was retired and an inactive member of defendant. When Mr. Parnell refused, Mr. Fitzgerald stated that he nevertheless would send Mr. Parnell the necessary form by which to withdraw his candidacy.

 14. On or about August 4, 1969, Mr. Parnell received by mail from defendant a form, requiring his signature, indicating that he did not accept the nomination for National Committeeman, Oakland, and that he did not wish to have his name appear on the election ballot. Mr. Parnell rewrote the form to state that he accepted the nomination and wished his name to appear on the election ballot, signed the form, and returned it to defendant by certified mail requesting a return receipt. Thereafter, Mr. Parnell received the return receipt stating that the form had been received by defendant.

 15. On or about August 18, 1969, Joseph P. Glynn, President of defendant, telephoned Lester F. Parnell. Mr. Glynn first spoke with Dora Parnell, Mr. Parnell's wife, who answered the telephone. Mr. Glynn told Mrs. Parnell to tell her husband that if he were elected as National Committeeman he might jeopardize his pension. Immediately thereafter, Mr. Glynn spoke with Mr. Parnell on the telephone and told him that if he were elected to the office of National Committeeman, he might jeopardize his pension. Mr. Glynn concluded his conversation with Mr. Parnell by asking him to send a telegram stating that he withdrew his candidacy.

 16. On August 18, 1969, in response to Mr. Glynn's statements, Lester F. Parnell sent a collect telegram to Joseph P. Glynn, as President of defendant, addressed to defendant's office in New York City, stating that he did not choose to run for any office in the 1969 election.

 17. Under the regulations governing eligibility for a pension from defendant's pension and welfare fund, Lester F. Parnell, as the recipient of a pension and as an inactive member of defendant, was entitled to hold the office of National Committeeman without forfeiting or in any way jeopardizing his right to continue to receive his pension under the plan.

 18. During the period from May 15, 1969, through November 30, 1969, defendant maintained an addressing machine together with various sets of membership cards at its New York City office. One set of cards listed the home addresses of various members of defendant; another set of cards listed the names of all ships that were owned by the companies with whom defendant had ...


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