Usery v. International Organization of Masters, Mates and Pilots, Intern. Maritime Div., ILA, AFL-CIO

• Decision Date: 12 July 1976
• Docket Number: D,AFL-CI,No. 1209,1209
• Citation: 538 F.2d 946
• Parties: 92 L.R.R.M. (BNA) 3297, 79 Lab.Cas. P 11,516 W. J. USERY, Secretary of Labor, United States Department of Labor, Plaintiff-Appellee, v. INTERNATIONAL ORGANIZATION OF MASTERS, MATES AND PILOTS, INTERNATIONAL MARITIME DIVISION, ILA,efendant-Appellant. ocket 76-6076.
• Court: U.S. Court of Appeals — Second Circuit

Page 946

538 F.2d 946

92 L.R.R.M. (BNA) 3297, 79 Lab.Cas. P 11,516

W. J. USERY, Secretary of Labor, United States Department of Labor, Plaintiff-Appellee, v. INTERNATIONAL ORGANIZATION OF MASTERS, MATES AND PILOTS INTERNATIONAL MARITIME DIVISION, ILA, AFL-CIO Defendant-Appellant.

No. 1209, Docket 76-6076.

United States Court of Appeals Second Circuit.

Argued June 18, 1976.

Decided July 12, 1976.

Marvin Schwartz, New York City (Burton M. Epstein, New York City, of counsel), for defendant-appellant.

Dennison Young, Jr., Asst. U. S. Atty., S. D. N. Y., New York City (Robert B. Fiske, Jr., U. S. Atty., and Stuart I. Parker and Frederick P. Schaffer, Asst. U. S. Attys., S. D. N. Y., and Francis V. LaRuffa, Regional Sol., New York City, Rudolph E. DeMeo, Atty., Dept. of Labor, of counsel), for plaintiff-appellee.

Before MANSFIELD, OAKES and GURFEIN, Circuit Judges.

GURFEIN, Circuit Judge:

This is an appeal from a summary judgment by the United States District Court for the Southern District of New York, Constance Baker Motley, Judge, ordering the defendant International Organization of Masters, Mates & Pilots ("the Union") to conduct a new election for its three International officers and all of its Offshore Division officers, under the supervision of the Secretary of Labor ("the Secretary") to be completed no later than the end of 1976, --- F.Supp. ----.

The action was filed by the Secretary on November 28, 1972 to declare void the Union election that had been held by mail ballots between September 21, 1971 and December 22, 1971 ("the 1971 election"). The action was brought under Title IV of the Labor-Management Reporting and Disclosure Act of 1959, 29 U.S.C. § 481 et seq. Jurisdiction is conferred by Section 402(b) of the Act, 29 U.S.C. § 482(b).

Though the action was filed in November 1972, the motion for summary judgment to void the 1971 election was not made by the plaintiff until December 17, 1974, returnable on January 2, 1975. The decision to grant summary judgment was not filed until March 17, 1976 and judgment was entered on April 15, 1976.

In the meantime, while the action was pending, two significant events occurred. The time for another regular election pursuant to the Union constitution arrived and it was held by mail balloting between September 1974 and January 1975 under the supervision of the American Arbitration Association ("AAA"). ¹

The other event was the action of this court in sustaining a complaint in the Southern District of New York by Union members seeking an injunction to prevent the new Union constitution adopted in 1970 from becoming effective. See Sheldon v. O'Callaghan, 497 F.2d 1276 (2 Cir.), cert. denied, 419 U.S. 1090, 95 S.Ct. 681, 42 L.Ed.2d 682 (1974). The case was remanded to the District Court for further proceedings and Judge Knapp ordered a new referendum on the 1970 constitution to be completed by February 26, 1977 until which time the present constitution remains in force. We discuss the significance of the validity of the 1970 constitution below.

The history of the elections and ensuing controversies may be stated briefly.

From September to December 1971, the Union, pursuant to its constitution, conducted an election for officers of the International Union. During roughly the same period (from August to November 1971), a referendum was conducted on the question of whether the Union should affiliate with the International Longshoremen's Association ("ILA"). In connection with this referendum, on August 19, 1971, a Newsletter was mailed to all of the members of the Union. This Newsletter contained certain remarks by Thomas Gleason, President of the ILA, which strongly praised O'Callaghan, the incumbent president of the Union, who was running for re-election, and strongly criticized Sheldon, an opposing candidate for president who strongly opposed the proposed affiliation with the ILA. Based on the mailing of this Newsletter, the distribution of which was alleged to violate 29 U.S.C. § 481, Sheldon and two other candidates brought an action alleging the illegality of the distribution of the Newsletter and requesting that the ballots for the forthcoming election not be mailed. Although the specific Newsletter involved related directly not to the election but rather to the referendum, it was alleged by the Sheldon plaintiffs that the statements regarding the candidates for office contained in this Newsletter were such as to affect the fairness of the election.

Judge Croake refused to issue a preliminary injunction of the balloting but ordered the Union to distribute at its own expense the campaign literature prepared by the plaintiffs. Pursuant to Judge Croake's order and shortly before November 9, 1971, Sheldon, the competing nominee for President, submitted his literature to the AAA. The AAA mailed the literature shortly after November 9, 1971, but by that time 3,000 to 4,000 ballots had already been cast and returned, without benefit of the Sheldon literature. Judge Motley subsequently held, in granting summary judgment, that "the voting which took place before November 9 was clearly of such magnitude that the results of the entire election could have hinged on the effect of the Newsletter on this pre-remedy balloting." (Opinion of Judge Motley at ----).

The relevant statute, 29 U.S.C. § 481(g), provides that no moneys received by any labor organization "shall be contributed or applied to promote the candidacy of any person in an election" of union officers. ² Furthermore, § 481(c) provides that every labor organization must "comply with all reasonable requests of any candidate to distribute" campaign literature to all members of the Union "and to refrain from discrimination in favor of or against any candidate with respect to the use of lists of members. . . ." The statute further provides that whenever any mailing is made by the Union on behalf of any candidate, similar distribution of campaign literature must be made at the request of any other bona fide candidate. ³

The Union constitution provides for elections every three years. Before the Secretary had moved for summary judgment, the balloting for the 1974 officers election was well underway. The fairness of the 1974 election procedure is conceded by the Secretary. ⁴ As a result of the 1974 election, two of the three international officer incumbents (including O'Callaghan) were defeated, as were close to two-thirds of the local incumbent officers.

The appellant argues that the judgment and order should be vacated and the case dismissed on the merits or as moot; alternatively, it argues that if a supervised election is required, it should be held at the time of the next regular triennial election commencing June 1977.

We agree with the District Court that because of the timing of its distribution during an election campaign, the Newsletter laudatory of the incumbent President and derogatory of his opponent paid for by the Union and distributed from its mailing list was prohibited campaign literature in violation of Section 481(g). See Hodgson v. Liquor Salesmen's Union Local No. 2, 334 F.Supp. 1369, 1377 (S.D.N.Y.), aff'd, 444 F.2d 1344 (2 Cir. 1971); Wirtz v. Independent Workers Union of Florida, 272 F.Supp. 31 (M.D.Fla.1967). The finding that the Union failed to offer "similar distribution at the request of (an) other bona fide candidate" compels the conclusion that there was also a violation of Section 481(c).

In finding that 3,000 to 4,000 votes had already been cast before the counter-mailing ordered by Judge Croake was effected, the District Court properly held that a prima facie case had been made out that the violation may have affected the outcome of the election, Wirtz v. Hotel, Motel & Club Employees Union, Local 6, 391 U.S. 492, 506-07, 88 S.Ct. 1743, 20 L.Ed.2d 763 (1968), and that it was impossible for the Union to prove that the violation did not affect the outcome. See Hodgson v. Liquor Salesmen's Union, supra ; Brennan v. Local Union No. 639, Intl. Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, 161 U.S.App.D.C. 173, 494 F.2d 1092, 1097-98 (1974). In granting summary judgment, Judge Motley found that in every Port there had been ballots cast by November 9, 1971 potentially sufficient to have changed the result in all contests of the disputed election. ⁵

The Union contends, however, that even if the 1971 election was unlawful, the action brought by the Secretary was mooted when the regularly scheduled election of 1974 resulted in the defeat of the winner of the 1971 election. Since the result of the election of 1974 mooted the action, the Union concludes, the judgment below should be vacated.

The Secretary, on the contrary, takes the extreme position that the 1974 election is not to be considered at all in reviewing this action with respect to the 1971 election. Both sides have argued that the question is whether the action was rendered moot by the 1974 election. The District Court apparently accepted the Secretary's argument and felt compelled to order a supervised election before the end of 1976 as requested by the Secretary. We cannot agree.

The Secretary relies on Wirtz v. Local 153, Glass Bottle Blowers Ass'n, 389 U.S. 463, 88 S.Ct. 643, 19 L.Ed.2d 705 (1968), as holding that the supervening election must be disregarded in determining his right to insist on a supervised election. We think that the Glass Blowers case does not have that reach, and that there are two distinct questions before us: first, whether the case is mooted by the intervening election and second, if it is not, what is the proper remedy.

In Glass Blowers the Secretary had brought an action challenging an eligibility requirement for local office attendance at a certain number of meetings that disqualified a large proportion of the union's membership, and seeking to have the 1963 election declared void. While the action was pending, a regular election was held in 1965 under...