Wirtz v. LOCAL UNION NO. 1622, ETC.

• Citation: 285 F. Supp. 455
• Decision Date: 07 June 1968
• Docket Number: No. 44875.,44875.
• Court: U.S. District Court — Northern District of California
• Parties: W. Willard WIRTZ, Secretary of Labor, United States Department of Labor, Plaintiff, v. LOCAL UNION NO. 1622, UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA, AFL-CIO, an unincorporated association, Defendant.

285 F. Supp. 455

W. Willard WIRTZ, Secretary of Labor, United States Department of Labor, Plaintiff, v. LOCAL UNION NO. 1622, UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA, AFL-CIO, an unincorporated association, Defendant.

No. 44875.

United States District Court N. D. California.

June 7, 1968.

Cecil F. Poole, U. S. Atty. by Robert N. Ensign, Asst. U. S. Atty., San Francisco, Cal., for plaintiff.

Victor J. Van Bourg of Levy, DeRoy, Geffner & Van Bourg, San Francisco, Cal., for defendant.

MEMORANDUM OPINION; FINDINGS OF FACT AND CONCLUSIONS OF LAW

WOLLENBERG, District Judge.

This is an action brought by the Secretary of Labor under Title IV of the Labor-Management Reporting and Disclosure Act of 1959 (29 U.S.C. § 481 et seq.) hereinafter referred to as the Act to declare the election held by defendant union on June 19, 1965 to be null and void, and to direct the conduct of a new election under the supervision of plaintiff.

The complaint alleges that defendant Union held nominations of officers in May, 1965, and an election of officers on June 19, 1965; that a member in good standing, Fuller, invoked all the remedies under the parent union's constitution and the defendant union's bylaws in protesting and appealing said election; that his protest and appeal was denied by the General President of the parent union; that having had no final decision made on his appeal to the General Executive Board of the parent union within three calendar months after instituting the same, said member filed a complaint, on October 18, 1965, with the Secretary alleging violations of section 401 of the Act (28 U.S.C. § 481) in the conduct of the election; that the Secretary then proceeded to investigate the matter after a subpoena duces tecum was made ordering the union to produce its records; that as a result of the investigation, plaintiff found probable cause to believe that a violation of Title IV of the Act had occurred with respect to the aforesaid election and had not been remedied at the time of suit.

The violations alleged by the Secretary were:

1) Failure of the defendant Union to mail notices of the election to all its members in good standing, as is required by Section 401(e) of the Act 29 U.S.C. § 481 (e).

2) Defendant union did not provide adequate safeguards to insure a fair election, as required by Section 401(c) of the Act, 29 U.S.C. § 481(c), with the result that the ballots cast for the office of Trustees were inaccurately counted and Marius Waldal was erroneously declared to have been elected as a Trustee.

3) Failure of defendant Union to provide a reasonable opportunity for the nomination of candidates, as required by Section 401(e) of the Act, 29 U.S.C. § 481(e) in that it did not give adequate notice of the nomination meeting. All of these violations, it is alleged, may have affected the outcome of the election, and have not been corrected.

Defendant's answer to the complaint asserted that the Court only had jurisdiction of the action as to those matters which were the subject of Fuller's complaint to the union, which only covered the election of Trustee and the failure to provide adequate safeguards therefor.

The matter was submitted for decision upon stipulated facts as set out in the pre-trial order, subject to the right of each party to object to the relevancy of these facts. This was supplemented by an additional pre-trial order, and the affidavit of Vyrl Anderson, Financial Secretary of defendant union. (Def's. Ex. A).

The facts, as stipulated to in the pre-trial order are as follows:

Local Union No. 1622, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, hereinafter referred to as "Local 1622", is a labor organization and an unincorporated association maintaining its principal office at 1050 Mattox Road, Hayward, Alameda County, California. Local 1622 is a member organization of the Bay Counties District Council of Carpenters, which is the certified representative of employees of member employers of the Associated Home Builders of the Greater East Bay, Inc., under the provisions of the National Labor Relations Act, as amended.

On Saturday, June 19, 1965, Local 1622 held its regularly scheduled biennial election of officers, business agents, and delegates to the Bay Counties District Council of Carpenters and the Alameda Building and Construction Trades Council. Nominations had taken place at the meeting held by Local 1622 on May 14, 1965. The officers elected in this election were elected for two-year terms of office.

The "East Bay Labor Journal", hereinafter referred to as EBLJ, is a weekly newspaper published in Oakland, California. It has long been designated as the official newspaper of organized labor for Alameda County, California, and, as such, has been used as the official newspaper of Local 1622 and the vehicle for advising Local 1622's membership of nominations and elections. The "Official Union Notices" section of the June 4, 1965 issue of the EBLJ set forth the date, time and place of the coming election, together with the names of all candidates and offices to be filled. In previous issues of this weekly newspaper (for April 16, April 23, April 30, May 7 and May 14, 1965), there had also been announcements of the election and nominations meeting in the "Official Union Notices" section. Names of candidates were, of course, absent from these earlier announcements but the date, time and place of the May 14 nomination meeting had been given. Copies of the announcements in the EBLJ of April 16, April 23, April 30, May 7, May 14, and June 4, 1965 are attached to the pre-trial order as Exhibits A, B, C, D, E, and F.

Issues of EBLJ are sent by mail to all members of Local 1622 for whom the paper has current names and addresses. All address changes or membership changes normally are communicated to EBLJ by the Union. Changes of address are, however, occasionally initiated by EBLJ itself in those instances where the member himself undertakes to provide a change of address or where a paper is returned to EBLJ by the Post Office unclaimed. As each "change slip" or other notice of change reaches EBLJ an addressograph plate will either be added, changed, or deleted, as the case might be. For each addressograph plate, there is a corresponding index card which is kept in an alphabetized file on a Union-by-Union basis. EBLJ does not maintain a mailing list, as such, although it does, from time to time, on request from one of its client unions, run off such a list for the particular client's use in comparing Union records with EBLJ plates.

Local 1622 did not maintain any mailing list or other membership list as such, and never made such a specific request for a list from EBLJ, prior to this election. EBLJ sent out 2,319 issues to Local 1622 members for the month of June 1965. Although Local 1622 did not have a membership list as such, according to its monthly per capita tax report for June 1965 (prepared for the International and containing a list of the total number of members and their current dues status), it had 2,701 members in good standing during that month (Exhibit G). Such per capita lists were prepared each month in the office of Financial Secretary-Treasurer Vyrl O. Anderson, under his supervision.

At the end of each month, Local 1622 received a bill from EBLJ for the total number of newspapers sent out to Local 1622 members during the previous month. The EBLJ bill was sent to Local 1622's Financial Secretary-Treasurer, Vyrl O. Anderson, who, together with Local 1622 President W. A. (Walt) Williams, would sign the check paying such bill. Such bills would normally be paid within one month of their receipt.

During its investigation of violations alleged to have occurred in Local 1622's June 19, 1965 election, representatives of the U. S. Department of Labor determined that the EBLJ's billing figures were approximately 153 newspapers short of the total number actually sent out to members due to EBLJ's clerical error. Thus, while EBLJ's billings from January to May varied from showing a high of 2,189 weekly issues sent out for the month of January, 1965 to showing a low of 2,130 sent out in March, 1965, the actual numbers sent out were 2,343 and 2,284 issues, respectively. The billing of June, 1965 was for 2,166 issues (Exhibit H). During this same period (January through May 1965) Local 1622's per capita reports showed that approximately 2,700 members were in good standing each month. The EBLJ also is subscribed to by seven other carpenter Local Unions in Alameda County.

More than a month prior to the regularly scheduled June 1965 election, Local 1622's Financial Secretary, Vyrl O. Anderson, did propose to establish a list of eligible voters by rubber stamping the designation "Eligible to Vote" on eligible members' quarterly working cards (these cards are identification cards showing the members' dues status) and on the April 1965 per capita list for such eligibles. The use of this procedure was, however, opposed by A. W. "Tony" Rice, who, as Recording Secretary, was also Clerk of Elections under the Union Constitution. The matter was thereupon referred to the General President of the United Brotherhood of Carpenters and Joiners of America, AFL-CIO (hereinafter referred to as "United Brotherhood"), who designated and appointed General Representative James C. Curry to supervise the conduct of the election, and the officers of Local 1622 were so advised.

If called to testify in this matter, Local 1622's Financial Secretary-Treasurer Anderson and General Representative Curry would both testify to a lack of knowledge that there was a discrepancy between the total membership figure shown on the per capita list and the total number of issues sent out to members by EBLJ.

The voting, which took place between 7:00 a. m. and 5:00 p. m. on June 19, 1965 at Local 1622's Union Hall in Hayward, California, was supervised by General Representative Curry....