Marshall v. Local Union 20, Intern. Broth. of Teamsters, Chauffeurs, Warehousemen and Helpers of Commerce

• Decision Date: 19 December 1979
• Docket Number: No. 79-3207,79-3207
• Citation: 611 F.2d 645
• Parties: 103 L.R.R.M. (BNA) 2111, 53 A.L.R.Fed. 572, 87 Lab.Cas. P 11,772 Ray MARSHALL, Secretary of Labor, Plaintiff-Appellee, v. LOCAL UNION 20, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF COMMERCE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 645

611 F.2d 645

103 L.R.R.M. (BNA) 2111, 53 A.L.R.Fed. 572,

87 Lab.Cas. P 11,772

Ray MARSHALL, Secretary of Labor, Plaintiff-Appellee, v. LOCAL UNION 20, INTERNATIONAL BROTHERHOOD OF TEAMSTERS CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF COMMERCE Defendant-Appellant.

No. 79-3207.

United States Court of Appeals Sixth Circuit.

Argued Oct. 3, 1979.

Decided Dec. 19, 1979.

Jeffrey I. Julius, Gallon, Kalniz & Iorio Co., Ted Iorio, J. E. Gallon, Toledo, Ohio, Daniel B. Edelman, Yablonski, Both & Edelman, Washington, D. C., for defendant-appellant.

E. Kathleen Shahan, Beate Bloch, U. S. Dept. of Labor, Washington, D. C., Bruce C. Heslop, U. S. Dept. of Labor, Cleveland, Ohio, Patrick J. Foley, Asst. U. S. Atty., Toledo, Ohio, for plaintiff-appellee.

Gallon, Kalniz & Iorio Co., LPA, Treasurer of U. S. Acc't Fees Earned, Samuel G. Bolotin, Toledo, Ohio, for Omar L. Brown and Harry Starkey.

Before WEICK and KEITH, Circuit Judges, and PHILLIPS, Senior Circuit Judge.

HARRY PHILLIPS, Senior Circuit Judge.

The Secretary of Labor brought this action pursuant to Title IV of the Labor-Management Reporting and Disclosure Act of 1959 (LMRDA or the Act), 29 U.S.C. §§ 401 Et seq., to set aside the December 1977 election of Harold Leu as president of the International Brotherhood of Teamsters, Local 20, and to conduct a new election. The Secretary contends that candidate Leu received employer campaign contributions barred by LMRDA § 401(g), 29 U.S.C. § 481(g). The district court, finding that certain campaign contributions violated the Act and affected the outcome, declared the election void and ordered that a new election be held under the supervision of the Secretary. We affirm.

I

Local 20 has approximately 12,000 members employed by about 500 employers in 13 counties of northwestern Ohio. There were only two candidates for president of the local on the December 1977 ballot: Harold Leu and Omar Brown. Only 3,513 members voted. The small vote possibly was due to inclement weather. Leu won by a margin of 29 votes.

This was the third contest between Leu and Brown. Leu won the first, but his victory was set aside by the International. Brown won the second election. Leu conducted a vigorous campaign for the 1977 election. He had no personal income at the time. His campaign committee obtained loans and gifts of money and property which Leu used to defray his living and campaign expenses. All the donors were employers and owners of non-union businesses engaged in interstate commerce within the area of Local 20's jurisdiction.

After Leu won the election, Brown and Starkey (a re-elected Local 20 trustee later discharged by Leu) filed protests with the secretary-treasurer of the Teamsters Joint Council and the International conducted a hearing. After waiting three months without a final answer, Brown and Starkey filed a complaint with the Secretary of Labor.

The Department of Labor investigated the election and discovered the aforementioned campaign contributions, which the Secretary concluded violated the Act and affected the outcome of the election. Because Local 20 failed to conduct a new election, the Secretary instituted this suit, pursuant to LMRDA § 402(b), 29 U.S.C. § 482(b), seeking to have Leu's election declared null and void and a new election ordered. Brown and Starkey were granted leave to intervene.

District Judge Don J. Young found that the contributions violated § 401(g) of the Act, 29 U.S.C. § 481(g). Accordingly, he voided the election for the office of president of Local 20 and ordered a new election to be conducted under the supervision of the Secretary.

Local 20 filed a notice of appeal, together with a motion for an expedited hearing. Although the appeal was expedited by this court, the re-run election already had occurred at the time of oral argument. Leu again was the winner. Leu is not a party to this suit.

II

The initial question is whether the re-run election conducted under the Secretary's supervision has mooted this appeal by satisfying the order of the district court. We hold that this appeal is not moot because the question presented is "capable of repetition, yet evading review." Moore v. Ogilvie, 394 U.S. 814, 816, 89 S.Ct. 1493, 1494, 23 L.Ed.2d 1 (1969); Southern Pacific Terminal Co. v. Interstate Commerce Commission, 219 U.S. 498, 515, 31 S.Ct. 279, 55 L.Ed. 310 (1911).

Weinstein v. Bradford, 423 U.S. 147, 149, 96 S.Ct. 347, 349, 46 L.Ed.2d 350 (1975), citing Sosna v. Iowa, 419 U.S. 393, 95 S.Ct. 553, 42 L.Ed.2d 532 (1975), identified two elements necessary to preclude a finding of mootness in the absence of a class action:

(1) the challenged action was in its duration too short to be fully litigated prior to its cessation or expiration, and

(2) there was a reasonable expectation that the same complaining party would be subjected to the same action again.

It is clear that Weinstein's first criterion is satisfied in the present case. The district court's order was entered on March 30, 1979. The re-run election was held and the ballots counted and tabulated by June 12, 1979. Further, LMRDA § 402(d), 29 U.S.C. § 482(d) dictates that "an order directing an election shall not be stayed pending an appeal." See Marshall v. Local Union 1374, International Assoc. of Machinists, 558 F.2d 1354 (9th Cir. 1977); Brennan v. International Union of Dist. 50, Allied and Technical Workers, 163 U.S.App.D.C. 46, 499 F.2d 1051 (D.C.Cir.1974). It is unlikely under these circumstances that this court could hear and decide an appeal before any re-run election.

Element (2) of the Weinstein test turns on the meaning of the phrase "complaining party." In the case at bar there are three complaining parties: (1) Brown and Starkey were the complaining parties without whom this suit might never have been filed; (2) the plaintiff Secretary is the complaining party pursuant to LMRDA § 402(b), 29 U.S.C. § 482(b); and (3) Local 20 is the complaining party on appeal. To hold that Brown and Starkey are the complaining parties contemplated by the Weinstein test would leave satisfaction of the test to the circumstance of their intervention. To hold that the Secretary is the complaining party contemplated by Weinstein would preclude satisfaction of element (2) because the Secretary is not being subjected to any action but rather is plaintiff solely because of the provisions of the Act.

We are left with only two alternatives which would allow review of the issues: (1) that appellant is a complaining party; or (2) that Weinstein only applies where the plaintiff was the losing party in the district court. If the Secretary as complaining party had lost in the district court, the mootness issue would not have arisen. We conclude that the term "complaining party" as used in Weinstein's element (2) refers to the appellant in this court. Based on this construction we hold that there is a "reasonable expectation" that there will be a recurrence of this issue, since Local 20 might well be subject to another court-ordered re-election which would escape judicial review if this case were held to be moot. Accordingly, we proceed to decide this appeal on its merits.

III

We are concerned that Harold Leu was not made a party to this action. Unquestionably, the district court's decision favorable to the Secretary had an adverse effect on Leu's December 1977 victory and he arguably was a "necessary party" to the suit.

Federal Rule of Civil Procedure 19 governs the joinder of persons necessary for adjudication. A person described by Rule 19(a) ¹ is "necessary" when his absence prevents complete relief to existing parties or impairs his ability to protect a claimed interest in the action. Rule 19(a) directs that such a person "shall be joined as a party."

We conclude that Leu is not a necessary party within the meaning of the rule. It is noted that LMRDA § 402(b), 29 U.S.C. § 482(b), ² mandates that the Secretary, upon finding probable cause to believe that a violation of the Act has occurred, shall bring a civil action against "the labor organization as an entity." There is no mention of union officials or alleged wrongdoers.

Further, to qualify as a necessary party under Rule 19(a)(2)(i) (the only section applicable under the facts of the present case), Leu would have to be so "situated that the disposition of the action in his absence may (i) as a practical matter impair or impede his ability to protect" his interests. However, defendant Local 20 has litigated the only substantive issue that could protect the validity of Leu's December election. Local 20's position is that Congress did not intend 29 U.S.C. § 481(g) to bar the union campaign contributions under scrutiny in this action. We find that the interests of Local 20 and Leu, its then elected president, were so interwoven that the disposition of this action in his absence did not, as a practical matter, impede Leu's ability to protect his interests.

IV

The principal issues on this appeal are whether 29 U.S.C. § 481(g) ³ is unconstitutionally overbroad and whether the phrase "no moneys of an employer" should be construed to prohibit loans or contributions to union election campaigns out of the funds of individuals or businesses not directly affected by the election but who are also employers. ⁴

Local 20 argues that the limited construction urged by it is mandated by the statute's underlying rationale, its implication of rights protected by the First Amendment and basic principles of statutory construction.

We look first to the Act's underlying rationale. In 29 U.S.C. § 401, Congress has declared that it is the Government's responsibility to protect employees' rights and:

that in order to accomplish the objective of a free flow of commerce it is essential that labor organizations, employers, and their officials adhere to the highest standards of responsibility and ethical conduct in administering the affairs of their organizations.

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