UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK
March 6, 1973
James D. Hodgson, Secretary of Labor, Plaintiff
Chain Service Restaurant, Luncheonette and Soda Fountain Employees Union, Local 11, Hotel and Restaurant Employees And Bartenders International Union, AFL-CIO, Defendant
Edelstein, Chief Judge.
The opinion of the court was delivered by: EDELSTEIN
In March 1969 an election of officers was held by the Chain Service Restaurant, Luncheonette and Soda Fountain Employees Union, Local 11, Hotel and Restaurant Employees and Bartenders International Union, AFL-CIO (hereinafter referred to as Local 11). Shortly thereafter, a union member, alleging that union activity during the course of the election violated Title IV of the Landrum-Griffin Act, § 401 et seq. (Labor-Management Reporting and Disclosure Act, ("LMRDA") 29 U.S.C. § 481 et seq. (1970)) protested the outcome of the election to union officials. Following the union's refusal to remedy the situation, the member filed a complaint with the Secretary of Labor, who properly initiated judicial proceedings. Ultimately, an out-of-court agreement was reached between the parties setting aside the contested election. In accordance with this agreement an order was entered by this court on November 15, 1971, directing the union to conduct a second election under the supervision of the Secretary of Labor and in accordance with the provisions of § 401 et seq. of Landrum-Griffin, and ordering the Secretary of Labor to "certify to the Court the names of the officers elected," at which time the court was to enter a decree "declaring such persons to be officers of the union." (Order filed November 15, 1971.) The election was held on April 25, 1972. Pursuant to this court's mandate, the Secretary of Labor submitted a Certification of Election dated August 15, 1972, and moved for an order declaring those persons certified to be the elected officers of Local 11. All of those candidates who received a majority of the votes cast for the office in issue were certified, with the exception of Elmer Hauck, a candidate for president. The union opposed the Secretary's motion, demanding that all candidates, including Hauck, be declared officers of Local 11.
The refusal to certify Hauck was based upon the Secretary's assertion that the provisions of § 504 of the Landrum-Griffin Act (29 U.S.C. § 504) rendered Hauck ineligible to hold union office. Section 504(a) prohibits any person who has been convicted of bribery from holding union office for a period of five years from the date of final disposition of the matter.
According to the Secretary, Hauck's conviction
of conspiring to violate and of violating § 302(a) (1), (a) (4) and (b) (1) of the Taft-Hartley Act (Labor Management Relations Act, ("LMRA") 29 U.S.C. § 186(a) (1), (a) (4) and (b) (1) (1970))
brought Hauck within the § 504 proscriptions. The union maintains, however, that (1) notwithstanding Hauck's conviction under § 302 of the Taft-Hartley Act, Hauck was not convicted of bribery; and (2) the Secretary of Labor did not have standing to refuse to certify Hauck.
The first question before this court is whether Hauck's conviction for violating § 302(a) (1), (a) (4) and (b) (1) of Taft-Hartley by requesting, demanding, receiving and accepting payments from employers of employees whom Hauck represented constitutes bribery within § 504 of Landrum-Griffin. The union contends that since the term "bribery" was not used in the indictment, conviction or sentence, Hauck is not precluded by § 504(a) of the Landrum-Griffin Act from holding union office. Because such an interpretation of § 504(a) would necessarily frustrate the Congressional policies underlying the Act, it cannot be accepted by this court.
To hold otherwise would violate the Supreme Court's mandate that a statute must be construed "in the light of the mischief to be corrected and the end to be attained."
Therefore, we must consider those factors which lead to the enactment of § 504.
Congress' primary purpose for adopting the Landrum-Griffin Act, as evidenced by the legislative history, was to eliminate the intolerable and corrupt conditions which prevailed throughout segments of organized labor during the 1950's.
Congressional investigations established that some unions, having fallen under the dictatorial control of criminals and racketeers, were no longer responsive to the demands of their memberships.
To curb the abuses which gave rise to these conditions and to promote internal union democracy, Congress directed unions to conduct elections in accordance with procedures which are fundamental to a democratic electoral process (Title IV). Realizing, however, that a democratic election would not, in itself, eliminate dishonest officials, the legislators provided safeguards which they believed would prevent irresponsible and unscrupulous persons from gaining control of union government (Title V). To this extent the protagonists in Congress, throughout the entire legislative history, accepted language preventing persons convicted of certain crimes from holding office.
That this was Congress' intent is evidenced by the following statement which was included by the drafters in the preamble.
(b) The Congress further finds, from recent investigations in the labor and management fields, that there have been a number of instances of breach of trust, corruption, disregard of the rights of individual employees, and other failures to observe high standards of responsibility and ethical conduct which require further and supplementary legislation that will afford necessary protection of the rights and interests of employees and the public generally as they relate to the activities of labor organizations, employers, labor relations consultants, and their officers and representatives.
(c) The Congress, therefore, further finds and declares that the enactment of this Act is necessary to eliminate or prevent improper practices on the part of labor organizations, employers, labor relations consultants, and their officers and representatives which distort and defeat the policies of the Labor Management Relations Act, 1947, as amended.
Landrum-Griffin Act § 401(a), 29 U.S.C. § 401(a) (1970).
Unfortunately, Congress failed to provide, in either the Taft-Hartley Act or the Landrum-Griffin Act, definitions for the various crimes enumerated in § 504(a), leaving the definitional task to the judiciary. Recognizing that a narrow reading of § 504(a) would seriously impair the efficacy of the Act, the courts have uniformly held § 504(a) to be a remedial statute which should be liberally construed. When confronted with issues requiring the interpretation of the language, the courts have refused to put form ahead of substance. Instead, they have attempted to determine whether the specific offense involved came within the generally accepted definition of the related § 504(a) crime. Thus, the term "extortion," as used within the statute, has been held to encompass both state and federal extortion laws, Postma v. Teamsters Local 294, 229 F. Supp. 655 (N.D.N.Y.) aff'd per curiam 337 F.2d 609 (2d Cir. 1964); the term "grand larceny" has been defined to include a conviction for the crime of "conspiracy to cheat and defraud a union of its money, goods and property", Berman v. Teamsters Local 107, 237 F. Supp. 767, 768 (E.D. Pa. 1964); and a conviction for "aiding and abetting in the willful misapplication of bank funds pursuant to 18 U.S.C. § 656" has been held to constitute embezzlement under § 504, Lippi v. Thomas, 298 F. Supp. 242, 244 (M.D. Pa. 1969).
Although neither the Landrum-Griffin Act nor the Taft-Hartley Act contain a precise definition of "bribery," the legislative history of § 302 of Taft-Hartley, as amended by and incorporated into the Landrum-Griffin Act (§ 505), clearly expresses Congress' view that § 302 was an anti-bribery statute. For example, Senate Report No. 187 on S. 1555 as reported,
Section 111 of the committee bill strengthens section 302 of the Labor-Management Relations Act by making it applicable to all forms of extortion and bribery in labor-management relations some of which may slip through the present law.
. . .
Although provisions of existing law would punish most forms of bribery or extortion if they were vigorously enforced by prosecuting officers, the testimony before the McClellan committee revealed loopholes. The committee bill proposes to close the loopholes.
The section of the House of Representatives bill which amended § 302 of Taft-Hartley (§ 505 of H.R. 8342 as reported and as ultimately adopted by the House), was identical to the Senate provision. The report accompanying the House bill contained an explanation of § 505 which was similar to the Senate's explanation.
It is thus apparent that § 302, as amended, of Taft-Hartley (§ 505 of Landrum-Griffin) was designed to "prevent corruption in the collective bargaining process through bribery of employee representatives by employers."
Therefore, because both § 504(a) of Landrum-Griffin and § 302 of Taft-Hartley (§ 505 of Landrum-Griffin), seek the elimination of bribery in the context of labor-management relations, they must be read in conjunction with each other: § 302 makes the bribing of a union official a federal offense; § 504(a) forbids persons convicted of bribery from holding union office for a specified period. To hold otherwise, by accepting the union's argument that a conviction for violating § 302 is not tantamount to a conviction for bribery, would create the anomalous situation of prohibiting all persons convicted of bribery, except union officials acting in their representative capacity, from holding union office. Obviously such a result was not contemplated by Congress;
indeed, Congress' precise objectives were to remove from office union officials convicted of accepting a bribe while engaged in union related activities. Furthermore, because the statutes were intended to reach "all forms of . . . bribery," it makes little difference whether the conviction was for a misdemeanor or a felony; or whether the defendant received a long or short sentence or no sentence at all, United States v. Priore, 236 F. Supp. 542, 544 (E.D.N.Y. 1964), as contended by the union in oral argument. (Hearing of October 12, 1972, at pp. 16-17.)
In view of the broad purposes Congress sought to accomplish, and in view of the liberal construction accorded § 504(a), I am of the opinion that the requesting, demanding, receiving and accepting payments by union representatives from employers of employees whom they represent with an intent to influence the decisions of the representatives in violation of § 302 constitutes "bribery" within the meaning of § 504(a).
Moreover, even assuming that Hauck's conviction under § 302 was not per se a disabling factor under § 504(a), Hauck's crime constitutes bribery both within the general understanding of the term and within the Second Circuit's definition. Black's Law Dictionary defines bribery as "the offering, giving, receiving or soliciting of anything of value to influence action as an official or in discharge of a legal or public duty." Black's Law Dictionary 239 (4th ed. 1951). The Second Circuit has described bribery as "an attempt to influence another to disregard his duty while continuing to appear devoted to it or to repay trust with disloyalty." United States v. Esperdy, 285 F.2d 341, 342 (2d Cir. 1961). See also United States v. Jacobs, 431 F.2d 754 (2d Cir. 1970), cert. denied, 402 U.S. 950, 29 L. Ed. 2d 120, 91 S. Ct. 1613 (1971), rehearing denied, 403 U.S. 912, 91 S. Ct. 2210, 29 L. Ed. 2d 690 (1971); Razete v. United States, 199 F.2d 44 (6th Cir. 1952). In Hauck's case, he and his co-conspirators, all officers of Local 11, were convicted of accepting yearly payments from Walgreen Company, an employer of members of Local 11. In return, the officers agreed not to demand certain employee benefits which had been incorporated in prior collective bargaining agreements.
Clearly, Hauck's conduct comes within the meaning of bribery. As the Second Circuit indicated in affirming Hauck's conviction, there "was ample evidence to show" that appellants requested and received money "with the intent of being influenced as union officials."
United States v. Ferrara, 458 F.2d 868, 873 (2d Cir.) cert. denied 408 U.S. 931, 33 L. Ed. 2d 343, 92 S. Ct. 2498 (1972). In light of such clear findings of fact, it would be ludicrous to state that Hauck had not participated in the bribery. Therefore, having been found guilty of accepting a bribe, Hauck is presently ineligible to hold union office.
The second issue before this court concerns the authority of the Secretary of Labor and the courts to approve the outcome of a supervised union election. Two related arguments have been stated by the union. First, the union contends that the Secretary of Labor was, in effect, attempting to enjoin Hauck from holding office; and that the Secretary lacked standing to seek such relief. In support of this proposition the union relies on United States v. Jalas, 409 F.2d 358 (7th Cir. 1969). In Jalas, defendant Clarence Jalas had pleaded guilty on January 5, 1968, to violating § 302(b) (1) of the Taft-Hartley Act. Thereafter, on February 1, 1968, he was re-elected to union office. The government, proceeding on the theory that Jalas' continued service as a union official violated § 504(a) of Landrum-Griffin, sought to enjoin him from holding union office. The Court of Appeals for the Seventh Circuit denied the relief requested, holding that the government had no standing to bring an injunctive action to prevent a violation of § 504(a).
The union's reliance on Jalas is misplaced. There, the Secretary attempted to remove, sua sponte, an elected official from office. In the case at bar, the Secretary merely refused to approve an ineligible, elected candidate. For Jalas to be controlling, the court would have to equate the refusal to certify with an attempt to enjoin. This the court cannot do because the procedural distinction is extremely important: the Secretary may, as a matter of law, refuse to certify a candidate;
however, the propriety of the Secretary's attempt to obtain injunctive relief in these circumstances is questionable, especially in light of the Seventh Circuit's decision.
The union also contends that the Secretary did not have the authority to refuse to certify an ineligible, elected candidate. The problem has been created by Congress' failure to delineate, by either statute or legislative history, the scope of the Secretary's, or the courts' power to approve the outcome of a supervised election. The union maintains that the Secretary's power to certify an election is governed by that portion of Title IV of the Landrum-Griffin Act which governs the post-election removal of installed officers. Section 402
permits the Secretary to institute a suit to remove a union official from office only upon a complaint of a union member who has unsuccessfully sought redress of his grievances through the internal union administrative process. Calhoon v. Harvey, 379 U.S. 134, 13 L. Ed. 2d 190, 85 S. Ct. 292 (1964). Under this theory, because union members failed to file a complaint with the Secretary after the April 25, 1972, election, the Secretary could not refuse to certify an ineligible, elected candidate.
The union's argument is not persuasive. An examination of the legislative history of § 402 indicates that the procedural rules governing the removal of union officials were included in § 402 to prevent, so far as possible, external interference with internal union affairs.
These rules were specifically enacted to prohibit the Secretary from intervening in union affairs on his own initiative. It makes little sense, however, to extend this policy to include circumstances in which the Secretary, pursuant to § 402, has already become involved in the union's internal affairs. Moreover, for the union to prevail, the court would have to define the refusal to certify as an attempt to remove. As already noted, the Secretary is not attempting to remove an official from office. Indeed, Hauck cannot be considered a union official, subject to removal, until the appropriate court order has been issued. Thus, the procedural provisions of § 402 which relate to removal do not preclude the Secretary from refusing to certify an ineligible candidate. In fact, the language of § 402(c) which relates to the validation of a supervised election indicates that the Secretary has not only the authority, but also the duty, to refuse to certify an ineligible candidate.
Pursuant to both § 402(c) and, in this case, a court order, the Secretary, having supervised the conduct of a union election, is to "certify to the court the names of the persons elected, and the court shall thereupon enter a decree declaring such persons to be the officers of the labor organization." Landrum-Griffin Act, § 402(c), 29 U.S.C. § 482(c) (1970). This provision suggests two different interpretations, both of which support the Secretary's action. A literal reading of the statute would impose upon the court a nonjudicial mandatory duty to accept, without question, the representations of the Secretary. The Secretary's certification would thus represent an order which is, for all purposes, final; and the ultimate approval of the court would be an empty formality. Assuming that such a construction is correct, Local 11 would be unable to challenge the Secretary's certification; and only those officers who were certified by the Secretary could be declared officers of Local 11. This interpretation, however, is not within the ambit of the statute. There is no suggestion that Congress intended the courts to "rubber-stamp" the Secretary's findings. Indeed, § 402 indicates that the opposite conclusions must be reached. By reading § 402(c) in conjunction with § 402(d),
it is clear that orders which designate elected officers are appealable. Cf. Schonfeld v. Wirtz, 258 F. Supp. 705 (S.D.N.Y. 1966).
Section 402 must therefore be construed as imposing upon the court a "judicial obligation with respect to enforcement of the Secretary's certification." Hodgson v. Local 2212 Carpenters Resilient Flooring Union, 457 F.2d 1364, 1368 (3rd Cir. 1972). Implicit in this "judicial obligation" is the mandate that the court's decree conform to the legal standards established by the Landrum-Griffin Act and the Taft-Hartley Act. The courts cannot ignore the law. Nor should they sanction an illegal act by giving that act legal status. If a person is rendered ineligible by law to hold union office, the court cannot transcend the boundaries of the law and declare that person a valid union official. Thus, at a minimum, in order for the court properly to conclude that a candidate should be declared a union officer, the court must first determine the eligibility of a candidate as defined by law. Therefore, it is incumbent upon the Secretary of Labor to disclose to the court all factors which might affect both a candidate's status and the court's deliberations.
Accordingly, the motion of the Secretary of Labor is granted.