Wirtz v. LOCAL UNION 169, INTERNATIONAL HOD CARRIERS, ETC., Civ. No. 1660.

• Court: United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. District of Nevada
• Writing for the Court: THOMPSON
• Citation: 246 F. Supp. 741
• Docket Number: Civ. No. 1660.
• Decision Date: 19 October 1965
• Parties: W. Willard WIRTZ, Secretary of Labor, United States Department of Labor, Washington, District of Columbia, Plaintiff, v. LOCAL UNION 169, INTERNATIONAL HOD CARRIERS', BUILDING AND COMMON LABORERS' UNION OF AMERICA, AFL-CIO, an Unincorporated Association, Reno, Nevada, Defendant. International Hod Carriers' Building Common Laborers' Union of America, AFL-CIO, Intervenor.

246 F. Supp. 741

W. Willard WIRTZ, Secretary of Labor, United States Department of Labor, Washington, District of Columbia, Plaintiff,
v.
LOCAL UNION 169, INTERNATIONAL HOD CARRIERS', BUILDING AND COMMON LABORERS' UNION OF AMERICA, AFL-CIO, an Unincorporated Association, Reno, Nevada, Defendant.
International Hod Carriers' Building Common Laborers' Union of America, AFL-CIO, Intervenor.

Civ. No. 1660.

United States District Court D. Nevada.

October 19, 1965.

246 F. Supp. 742

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246 F. Supp. 743

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246 F. Supp. 744

Charles Donahue, Sol., James R. Beaird, Associate Sol., Altero D'Agostini, Regional Attorney, Norman S. Neyfach, Deputy Regional Attorney, U. S. Department of Labor, Washington, D. C., John W. Bonner, U. S. Atty., Las Vegas, Nev., Merlyn H. Hoyt, Asst. U. S. Atty., Reno, Nev., for plaintiff

Charles P. Scully, Donald C. Carroll, San Francisco, Cal., Marshall Bouvier, Reno, Nev., Robert J. Connerton, Washington, D. C., General Counsel, I. H. C., B. & C. L. U. of A., AFL-CIO, for defendants.

THOMPSON, District Judge.

This action duly came on for trial before the Court sitting without a jury at Reno, Nevada, on October 11, 12 and 13, 1965. Plaintiff was represented by Norman S. Neyfach, of the Office of the Regional Attorney, United States Department of Labor. Defendant Local Union 169 was represented by Charles P. Scully, Donald C. Carroll and Marshall A. Bouvier.

At the commencement of the trial, International Hod Carriers' Building Common Laborers' Union of America, AFL-CIO, moved to intervene as a party defendant adopting the actions herein of defendant Local Union, and an order was entered granting the motion on stipulation of counsel. The International Union was represented by Robert J. Connerton and Marshall A. Bouvier.

Evidence was received on behalf of the respective parties and the case was submitted for decision upon the Pre-Trial Conference Order, the evidence, and the arguments of counsel.

This is an action to set aside as invalid the election of officers conducted by defendant Local Union on June 15, 1963, and to direct the conduct of an election under the supervision of the Secretary of Labor, United States Department of Labor, and in accordance with the provisions of Title 4 of the Labor-Management Reporting and Disclosure Act of 1959 (29 U.S.C. §§ 481-483), and in conformity with defendant's Constitution and By-Laws insofar as they are not inconsistent with the provisions of the Act. This Court has jurisdiction by virtue of Section 402(b), Title 29, United States Code.

The Court finds the following facts to be true:

FINDINGS OF FACT

1. Defendant Local Union is, and at all times relevant to this action has been, an unincorporated association maintaining its principal office at 290 North Arlington Avenue, Reno, Nevada, within the jurisdiction of this Court. Defendant Local Union is, and at all times relevant

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to this action has been, a labor organization engaged in an industry affecting commerce within the meaning of Sections 3(i) and 3(j) of the Act 29 U.S.C. § 402(i) and (j)

2. Defendant Local Union is, and at all times relevant to this action has been, a local labor organization chartered by its parent body, defendant and Intervenor, International Hod Carriers' Building Common Laborers' Union of America, AFL-CIO, Washington, D. C., hereinafter referred to as the International Union, an international organization within the meaning of Section 3(i) of the Act, 29 U.S.C. § 402(i). Defendant Local Union is subject in its organization and internal procedures to the provisions of the International Union Constitution of its parent body and to the Uniform Local Union Constitution, and to the lawful orders, decisions and interpretations, rules and regulations promulgated in pursuance thereof by the General President and General Executive Board of the International Union.

3. Officers of the Local Union are elected every three years. Conformably with the Constitution and By-Laws, a special nomination meeting was called to be held on May 9, 1963 for the purpose of nomination of candidates for office, qualification of candidates, designation of judges of election and establishment of certain election procedures. At the regular monthly meeting on May 23, 1963, the membership voted to hold the election on Saturday, June 15, 1963 at the Labor Temple, 290 North Arlington Avenue, Reno, Nevada, the polls to be open from eight a. m. to eight p. m. Any member desiring to vote was required to appear personally at the polling place to cast his ballot.

4. On May 31, 1963, the Secretary of the Local Union mailed notices of the election to the members in good standing. Notice of the election was not mailed to thirty members of the Local Union who were qualified and entitled to vote.

5. Between May 31, 1963 and June 15, 1963, the Secretary of the Local Union furnished to the candidates for office a list of names and addresses of the members of the Local Union. The list was furnished without discrimination to all candidates who requested it. The list of names was inaccurate and incomplete in that there was omitted therefrom the names and addresses of fifty-two members of the Local Union who were qualified and eligible to vote.

6. At the election held on June 15, 1963, the candidates and voting results were as follows:

President
                Frank Conrad 82 E
                John Newman 34
                Ted Tobias, Jr. 36 46(S)
                Vice President
                Dick Van Dyke 102 E
                Recording Secretary
                Louis Paley 57 37(S)
                Charles Burke 94 E
                Secretary-Treasurer
                Charles Carter 48
                Elmo Recanzone 57 E
                Joe Strenkoski 48 9(S)
                Business Representative
                Don Gurd 95 E
                Elmer Matthews 53 42(S)
                Sergeant-at-Arms
                Bill Courtney 90 E
                Bill Maine 36 54(S)
                Auditors
                A. T. Dilworth 76 E
                John Hightower 77 E
                Bert McGuire 96 E
                Executive Board
                Ralph Blackburn 95 E
                Manuel Ortiz 90 E
                (E — Elected)
                (S — Spread)
                

7. Article XX, Section 5, of the International Union Constitution provides that a member shall, upon transferring from another local "become a member of the Local Union to which he has transferred

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and entitled to all rights and privileges of a member, except that he shall not have the right to vote until he has been a member thereof for three months * * *." Defendant interpreted this "three-months rule" as applying also to newly initiated members and re-admitted members who had paid up their arrears

8. Six members of the Local Union who appeared at the polls to vote, including Everett G. Hail, were improperly declared ineligible to vote by the election committee and were not permitted to vote because of the aforesaid unintentionally erroneous interpretation of the Constitution.

9. There were 512 members of the Local Union on June 15, 1963 who were qualified to vote. Of these members, 426 lived in the Reno-Sparks, Carson City, Lake Tahoe area within approximately fifty miles of the polling place; 26 members lived in Fallon, Nevada, approximately 60 miles from the polling place; 34 members lived in Northern Nevada distant approximately 80 to 350 miles from the polling place; 14 members listed addresses in California; and 12 members listed addresses at miscellaneous places outside California and Nevada. Only two members who had mailing addresses on defendant's records on June 15, 1963 of more than eighty miles by highway from Reno, Nevada, voted at the election. The jurisdiction of Local Union 169 includes the following Counties in Nevada:

Washoe Eureka
                Humboldt White Pine
                Pershing Elko
                Douglas Story
                Ormsby Churchill
                Mineral Lyon
                Lander Nye (North of Hwy 6 except
                 the Town of Tonopah)
                

10. On or about June 24, 1963, Everett G. Hail, a member of the Local Union who was not permitted to vote, entered his protest and appeal to the International Union (Exhibit B), as follows:

"On June 15th, 1963 the International Laborers Local #169 of Reno, Nevada, held an election for new officers. Being a member in good standing, I reported to the Labor Hall located at 290 N. Arlington Ave. Reno, Nevada. I tried to cast and exercise my right to vote, but was denied such action. This is in direct violation not only of our International Constitution, but also violates procedure of the Landrum-Griffin Act. Therefore I wish to challenge the validity of this election."

A copy of the letter was sent to the San Francisco Regional Office of the National Labor Relations Board.

On June 25, 1963, A. T. Tobias, Jr., a member of the Local Union and a candidate for the office of President at the contested election, entered his protest and appeal to the International Union (Exhibit C), as follows:

"I wish to submit a protest, challenge and question the election of officers that was held on June 15, 1963, in Reno, Nevada of Local #169 Laborers' & Hod Carriers' Union. I question it on the following facts:

"1. At the meeting of judges after nomination night I was charged with crossing a picket line by one of the judges, so I was considered ineligible. After an investigation it was found to be an untrue fact. In my opinion this tends to show discrimination, because there was a candidate who held the office of Secretary Treasurer who was forced to resign for crossing a picket line not on union business. Yet not one word was mentioned to the members by the qualifying board. I feel that by bringing this matter up it left doubt towards me in the minds of the members if I was guilty or not, because it was not explained thoroughly.

"2. The list of eligible members for campaign purposes who were

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supposed to be permitted to vote was incomplete. According to the Secretary Treasurer our local has 650 members. But the list only contained 420 names.

"3. Some of the members whose names appeared on the list were denied their constitutional right to cast their vote for the candidate of their choice, and members whose name did not appear on the list were permitted to vote.

"These are direct violations not only of our

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