Earl Warren: Calhoon, as President, or Herbert W. Peters, as Secretary-Treasurer of District No. 1, National Marine Engineers' Beneficial Association, AFL-CIO, Petitioner, versus Raymond H. Harvey et al. Individually and on behalf of other persons similarly situated. Mr. Scribner.
David Scribner: Mr. Chief Justice, if it please the Court. The issue here affects the interpretation of the Labor-Management Reporting and Disclosure Act, insofar as it relates to one specific issue and that is the question as to whether the District Court on the complaint of a private party that is a member of the union may it make a determination assuming jurisdiction therefore in respect to the reasonableness of eligibility qualifications for candidacy to union office, the far reaching nature of the ultimate determination of this is apparent because of the many thousands of union elections that go on everyday in the weekends throughout the year. If the question -- if the answer into this question is that the District Court may assume initial jurisdiction that is on the complaint of a private party and before an election has been concluded and obviously, every member of any union at any time prior to an election may attack candidacy qualifications under the Labor-Management Reporting and Disclosure Act. On the other hand, if the answer is no, as I suggests and as the United States suggests in its memorandum to this Court which was asked for by the Court, then the relief to be obtained by a member who seeks relief in respect to eligibility requirements would be to make a complaint as the Act requires to the Secretary of Labor under certain circumstances and under certain conditions, the Secretary of Labor would then make the necessary investigation and under the circumstances set forth in the Act would then file a complaint in the name of the Secretary of Labor to the District Court for -- to set aside the election which is under attack and to secure a new election under the offices and supervision of the Secretary of Labor. Now, the scheme of the Act as the petitioner sees, it is a fairly simple one, Title IV of the Act which was initially the subject of the Kennedy Urban Bill which initiated the entire legislative process in 1959, in which lead to the Act itself, provides for almost every manner relating to the election process. There more specifically, the Act provides and particularly in Section 401 (e), among other things that every member in good standing of the union has the right to be a candidate for election to union office subject to reasonable qualifications uniformly imposed by the union. That is specific -- those are the words of the Act itself. On the other hand, Title I, 101 (a) of the Act which is essentially the so-called Bill of Rights which had been introduced by Senator McClellan, as the result with his investigation, provides that every member of the union has the equal right to nominate. Enforcement under those circumstances, that is to enforce the equal right to nominate is on -- is in the District Court upon the complaint of the member aggrieved. Now the respondents in this proceeding, members of the union, nominated themselves under the union procedures that I will demonstrate in a moment and were then disqualified by the Credentials Committee of the Union after their nominations had been received because they did not meet the requirement of a certain amount of seatime. Many unions, and frankly, most unions that I know of and particularly in the maritime industry have provisions for a certain amount of employment as the condition for candidacy in order to have people who would be officers, who will be familiar with the running of the union and the industry itself and the problems of the individual members and the like. They had nominated themselves only for the office of patrolman and for nothing else.
Potter Stewart: What is a Patrolman (Inaudible) --
David Scribner: A patrolman is like a representative of the union at the ports. He meets the ship. He takes care of all the problems of the men as they come in from sea, as they come off the ship and then sees to it that their problems are met through the union, gives them advice and guidance is really the most important. I would consider -- probably the most important single union representative or at least as important as almost anybody that I know of. Well, he's not really like a steward because he's a full time employee of the union or elected official of the union but he's not like a steward because a steward normally is a member -- is a working man in the shop and is -- has been elected by the immediate persons in his department or division.
Potter Stewart: Is it just one patrolman in each port or are there several?
David Scribner: Well, there are different divisions there.A patrolman who is known as a patrolman is also a business agent for the particular port to -- who has a different status, but more or less serves in the same capacity.
Arthur J. Goldberg: Mr. Scribner, as to the (Inaudible)?
David Scribner: He can nominate himself. He may nominate himself. At least, that's the way the provision raised. We're not contesting at this moment whether that was permissive or not permissive. I think in the posture of the case let's assume, I think the record is that at this moment. It happens not to be the fact, but it is not -- we're not raising that at this moment. We'll say that he can only nominate himself. Every member of the union may nominate himself. The qualifications as we see it go to an entirely different question because if the issue were that any member can nominate persons who are qualified then we're mixing two questions as I think the Circuit Court did. What I suggest the Circuit Court did was to mix really apples and pears in this sense. The apple is the equal right to nominate which is a nondiscriminatory right to participate in the nominating procedure. Let me give one example of the -- of a discriminatory practice. Assume particularly here where you have seamen, these are marine engineers, who travel all over the world and maybe on ships a good part of the year. If the requirement was that in order to make a nomination, a member of the union had to appear at a union meeting, let say in Portland, Oregon, when he maybe in Japan or a large number of the membership maybe all throughout the world and if he doesn't appear at that meeting he cannot make a nomination, I would say that is exactly the kind of thing that was contemplated by the right, the equal right to nominate. In other words that process, the nomination process. On the other hand, if the question of qualifications which I consider to be the pear in this situation, were to be merged as the Second Circuit did with the apple and put them in a fruit bowl and then say, since they're all fruit, the pear is the apple, that is the pear being the equal qualification has to be considered if with the apple itself and somehow we have a denial of an equal right to nominate, in other words, an apple -- instead of an apple and a pear, that would the effect of it. There are two separate and distinct matters. In fact, that is exactly the way the Congress considered it. Now, the provision --
Earl Warren: Suppose your pear is the right to run for President of the organization and -- is this under your theory of the case is there inequality here? Because I understand it in this union, the man had to be in the hierarchy to run for the presidency.
David Scribner: Well first on the fact sir and at the -- record would show that any person who had previously held any office whatsoever or any time paid -- elected or paid, would be eligible for that. I would say that the question there maybe the unreasonableness of the eligibility qualification which is exactly the kind of thing that the Secretary of Labor would have to look into. Now in one union, it might mean a thousand people out of, let's say 2500. In another union under whatever the circumstances are, the number of locals for instance, the number of officers within each local, it might be only ten. Now, in one case that might be completely unreasonable. In another case it might be completely reasonable. Now, whether it was discriminatory is not the issue because it might be discriminatory and unreasonable. But the question as to the equal right to nominate was one that was directed to the narrow question of the right to nominate. Now, there has been a suggestion that perhaps we look at what maybe considered be effectiveness of the nomination and I imagine that would be a general concern. Is the nomination an effective nomination, what uses there to nominate if ultimately there can't be an election. But if we do that, we're destroying the whole scheme of the Act because only in Section 401 (e), that is in that Section which relates to the whole election process in the sense that the Secretary of Labor is to look at every aspects of it and then make his determination as the result of his expertise, his experience, his knowledge of the union, his understanding of the particular impact, a particular qualification which would have in a particular situation which might be entirely different in another situation. On the other hand, the question of the equal right to nominate itself as I said before is one that goes to the making of nomination and the kind of things that I suggested before. Another instance of that would be simply, suppose in a nomination meeting, you had a situation where only certain members could go into that meeting. Nobody else could walk into the meeting, a Sergeant-at-Arms stands at the meeting and by the way there were some instances of this that were referred to by Senator McClellan during the course of the hearing. And I suspect this is the kind of thing he had in mind. You have a meeting and 50 men out of let's say 150 men who may want to attend the meeting are not permitted to enter into the meeting, a nominating meeting. They would have been denied an equal right to nominate. If the two were to be equated, that is a question of eligibility qualifications with the right to nominate, then every qualifications in every union would be subject to a determination by a District Court initially on the complaint of an individual and without the intervention of a Secretary of Labor and the application of his expertise and knowledge in order to determine whether or not there was a so-called effective right to nominate which in the last analysis would be an equal right to nominate. That's the way the argument on the other side goes.
Byron R. White: Well, Mr. Scribner, what the -- what is the -- is there a -- is the right to nominate guaranteed somewhere in the law?
David Scribner: An equal right to nom --
Byron R. White: I didn't answer that, the right to nominate?
David Scribner: Well, the -- in Section 401 (e) the same Section that has the qualifications, they talked about a reasonable opportunity. Every member should have a reasonable opportunity for a nomination or there shall be a reasonable opportunity for a nomination.
Byron R. White: So would you confine Title I or Section 101 to -- just the equality face or is it --
David Scribner: That's exactly right.
Byron R. White: And the --
David Scribner: And as a matter of fact, the congressional history supports that.
Byron R. White: And the scope of the right itself, under Title IV, is that it?
David Scribner: The scope of the right itself as it involves all the aspects of the election procedure --
Byron R. White: No, first of all, what (Voice Overlap) --
David Scribner: -- would be entitled.
Byron R. White: -- what is involved in the right to nominate for example to the -- is it reasonable to say that you can nominate only yourself?
David Scribner: Well, it so happens that the Secretary --
Byron R. White: Now, what -- yes, but what if that question is told to -- who solves that?
David Scribner: The Secretary of Labor would solve that. On the other hand, I might say this. This is one of the more difficult --.
Byron R. White: Section 101 --
David Scribner: -- question.
Byron R. White: Section 101 says that people still have the equal right to nominate. You have recited the equal but what about the rights?
David Scribner: I would say that under those circumstances, you might have a sort of interplay between the two Sections. Now, the question is whether it's equal and I say equal since that's the term was used there. It could have meaning only because it's there. And as a matter fact, the legislative history indicates quite clearly those who spoke about it that they were talking about a nondiscriminatory right to nominate. It wasn't just a question of a right to nominate, a nondiscriminatory right to nominate. If you have as we have in this instance a provision which permits everyone of the 6,000 members of the union to nominate himself, that is an equal right to nominate. I might say the Secretary of Labor that he himself held --
Byron R. White: And he says that -- he says the Section not only guarantees equalities but it guarantees a right to nominate and the right to nominate is more -- it certainly includes more than the right to nominate yourself --
David Scribner: Well, I'll be frank to say Mr. Justice White that on that particular subject, there maybe a question. Now, I tell you I‘ll explain --
Byron R. White: Isn't that --
David Scribner: -- why I say that.
Byron R. White: Isn't that question right here?
David Scribner: No. No, not necessarily at all sir.
Byron R. White: Well, not --
David Scribner: As I --
Byron R. White: -- necessarily but isn't it?
David Scribner: Its here only in respect, if its here at all. It's here only in respect to the issue of self-nomination. Now, the District Court recognized that and the District Court put it this way. The District Court said that all of these relates to the election process and it should be under Section 401 (e) and subject to the action of the Secretary of Labor. Then the District Court went on to say, however, even if the question of self-nomination is one that might come within the area of Section 101 (a) (1) involving the equal right to nominate. I consider it to be a perfectly reasonable type of nomination procedure. Now, that's the way he met that.
Byron R. White: Yes. Well, you don't think he should have met it all? That -- do you think if that -- the scope of the right is that the reasonableness of the nomination -- the definition of the nomination or the right to nominate is for the Secretary?
David Scribner: Well, not only don't I think so but I don't think the Second Circuit thought so. Because the Second Circuit did not rule on the basis of the self-nomination procedure was a restrictive procedure standing alone.
Byron R. White: Well, they just didn't get to that part?
David Scribner: What they decided was that a combination of the qualification procedure as well as the self-nomination procedure in itself caused what it considered to be a denial of the equal rights to nominate. And there are --
Byron R. White: But what if there was no right to nominate in any one? What if the union procedure is self-perpetuating board --
David Scribner: Well --
Byron R. White: -- and then, they just didn't have a right to nominate anybody?
David Scribner: Oh, I don't -- I would have no problem at all if (Voice Overlap) --
Byron R. White: Well, then -- yes, but what's the source of the right in somebody to nominate, is it 101?
David Scribner: Well, the basic source of the right, I would say isn't 401 (e) because that relates as I said to the entire election process and I think that is the intent of Congress. On the other hand, where there's been a discriminatory denial of the right. In other words, Section 101 (a) (1) does not go to substantive right. It does not establish substantive rights and I think this was the intent. What 101 (a) (1) does is to prevent or attempt to prevent discriminatory application. In other words, discriminatory denial because if you see the whole concept as it set forth in Title IV, you will see that the intent was to have the Secretary of Labor take the package and make his determinations as required by the circumstances of the particular situations with a certain guide. There were still another very significant aspect of Title IV which is not in Title I, which was served further, Title I, the need for the Secretary of Labor. First of all, you have the expertise as I said and the information and the background of the Secretary involved. And it's mandatory. It must go to the Secretary of Labor and then the Secretary of Labor, after an investigation upon a finding of probable cause that a violation exists can make an application to the District Court for the necessary relief. Second --
Arthur J. Goldberg: (Inaudible)
David Scribner: This case was initiated in 1963 and it was not there, sir.
Arthur J. Goldberg: Now, with the (Inaudible)--
David Scribner: Yes, indeed
Arthur J. Goldberg: (Inaudible)
David Scribner: Yes, indeed.
Arthur J. Goldberg: (Inaudible)
David Scribner: Exactly.
Arthur J. Goldberg: (Inaudible)
David Scribner: Exactly. As a matter of fact, it's interesting that the congressional -- the legislative history shows that one of the reasons for having that issue of qualifications particularly go to the Secretary of Labor, is so that there would be a minimum interference, number one, with the activity of the union in its normal application and goodness knows, there was a very substantial interference by the very adoption of the Act. Whether it's right or wrong, it's not an issue at this moment. Then the other part of it was the exhaustion requirements, and I'm really relating to the statements that you made Mr. Justice Goldberg. A member under 401 (e) must exhaust his administrative remedy. Under 101 (a), he maybe required to exhaust the administrative remedies and the Second Circuit in the Detroy case in which cert was denied a year has said that there is not mandatory in the 101. But there's no question about a being mandatory in the 401. Now, why do I advert to that?Simply because the legislative history show that he reason for the mandatory exhaustion was that the union is to be given the opportunity to make the necessary corrections to give it the opportunity to consider the problem before it find itself in a court proceeding and possibly under injunctive sanction. Now, in this particular situation and to which you refer Mr. Justice Goldberg, while the Secretary was investigating the Pacific Coast District and these very areas is the same union. Its Pacific Coast District of the National Marine Engineers' Beneficial Association, the organization here directly involved in this suit is District I, that's specific -- that's the East Coast in effect and the like. Now, it's interesting to observe since the Secretary of Labor has referred to it. I -- with your permission, feel free to make a comment on that. The fact is that the union has considered that the national union which is not involved here has considered the impact of what it is the Secretary of Labor has done and has made as of now. And this is quite a few months ago, certain specific changes in order to eliminate any possible questions in respect to the major issues.
Arthur J. Goldberg: (Inaudible)
David Scribner: Exactly sir. It's in the footnote. It's on the -- that page and then the footnote itself. So that here is a perfect illustration of why it is that Congress did not intend that every time there was a question about an illegibility qualification and they're always is, it maybe good or bad but there's always somebody who may think it's bad. And this would serve as an unwarranted encouragement not contemplated by law for every member, at any member, at anytime while an election is in process and before has been concluded to go to the District Court and say I have a complaint under 101 (a) (1) because in affect the qualification goes to the question of my equal right to nominate. I have an equal right to nominate anybody I want. The qualification limits my right in the sense that it limits the candidates. The number of candidates whom I should have a right to nominate but of course, even Senator Barry Goldwater, who was the proponents for the view that there should be all kinds of legal sanctions against the activities of unions and in this particular area said in complaint. During the course of the debate and he was a member of the conference committee. He said, Section 101 (a) (1), and this is in our briefs, does not give anyone the right of candidacy. He says, 401 (a) does -- 401 (e) rather and that goes only, the complaint there can only go to the Secretary of Labor and he insisted that it would have been proper to have done it that way. In fact, Secretary Goldwater's Bill which he introduced during the early phases of 1959 and after the Kennedy Urban Ville had been introduced, provided that Section -- the rights under Section which is now Section 401 (e), that is the whole eligibility -- the whole election process provision should be enforceable either at the instance of a member in the District Court at any time or through the Secretary of Labor. Now, it's also curious that Senator McClellan who was the proponent for the basic legislation which is here involved. When he introduced his Bill of Rights on April 20 -- April 22nd, 1959 after the Senate Bill had already been adopted which did not contain the Bill of Rights at that time. On the floor of the Senate, Senator McClellan introduced his Bill of Rights and it was adopted the same day with very little discussion or as much discussion as can be had within the day. It's interesting that his Bill, the McClellan Bill itself, provided that every aspect of the so-called Bill of Rights should also be in the Secretary of Labor' hands and should go there. Now, I say that because a good part of my opponents arguments are related to the fact that it was Senator McClellan's investigation and his desire that members should always be able to go into the Court to resolve any issue immediately in respect to union affairs. The fact is that then Senator Kuchel, two days later decided that it would create a preemption problem if everything in the Bill of Rights were to -- be left to the Secretary of Labor as well as all the other rights which were referred to and the original Kennedy Bill and they separated them and the 101 (a) (1) rights were set aside for the action of the District Court. What is also significant is that during the entire flow of this legislation, in its discussion at the halls of Congress, there was never a single suggestion by friend or foe of the bill of the legislation, in concept or in detail that eligibility requirements which is essentially the problem in this case should be the subject of direct court action. I am very grateful for the fact that my friend, only yesterday, brought to my attention and I understand he has brought it to the Court's attention. A new decision of the Second Circuit, the same circuit here involved in respect to the very issue we're discussing today. As I understand it, this case came down last Tuesday and my friend was the attorney in that case. At least I'm grateful that I had it yesterday, so I could read it overnight. Now, the question is completely clarified as I said, I'm terribly grateful to the Court of Appeals for clarifying it. It is no longer a question of the particular nomination procedure. Now, the Second Circuit has really stated what the problem is and that's the problem as I suggests -- as I have suggested is before this Court in its most vital sense. The Second Circuit --
William J. Brennan, Jr.: Did you say it was the matter (Inaudible)?
David Scribner: I understand so. I was told this morning that you were the -- the case is Labutti against Britsey (ph).
Speaker: (Inaudible)
David Scribner: It's in this form. I refer to page 13 at least that's the page number here. Now, the Second Circuit is not really at all concern directly about the problem of what happened at the nomination. The Second Circuit now says as its basic consideration of the problem are the following. The right to nominate can be infringed by restrictions on eligibility for office as well as by rules dealing directly with the right to nominate. And further goes on to say in the Footnote, Footnote 3 on that page, appellants argue that a limitation on illegibility for office can be challenged only under Section 401 (e). Section 401 to 403 are concerned generally with union elections and Section 401 (e) in particular deals with qualifications for office as well as for nominating and voting and with post-election as well as pre-election proceedings -- procedures. Now, what we have here is the -- what I consider to be the can out of the bag. It's not the nominating, the process of nominating. It's the qualifications and the issues squarely before this Court is whether -- in determining whether the right to nominate, the equal right to nominate has been violated thereby giving the District Court direct jurisdiction, can the Court make a determination as to the reasonableness of the eligibility requirements thereby completely usurping the need for a uniform labor policy, the need for the expertise of the Secretary of Labor and the design of the -- in destroying the entire design that Congress created in a very difficult situation.
Speaker: Is that -- this affect (Inaudible)?
David Scribner: Oh, it's completely consistent. All I'm saying now is that it clarifies.
Speaker: The problem?
David Scribner: It clarifies the problem. I'm delighted that it was done because I think the issue before this Court is now all the clearing.
Speaker: (Inaudible)
David Scribner: Well, I was a little troubled about it and I'll be perfectly frank to say because of the -- what consider to be a confusion between a so-called nominating procedure and qualifications. Because the Court in the -- in our decisions said, if -- it is not ready to say that either, that is the self-nomination procedure or the qualification standing alone would constitute a violation, and there I was lost at that moment. But the Court there said the combination of the two. Now, the Court goes one step beyond that in concept. The Court now says, forgetting about an actual nominating procedure, at least in this sentence, forgetting about the actual nature of the nomination procedure. The Court can consider the reasonableness of eligibility requirements and determine that if it's unreasonable, it thereby affects the equal right to nominate. And that I think is the clear issue before this Court.
Speaker: The theory I believe, as suggested by the (Inaudible) directly would apply in this (Inaudible)?
David Scribner: Yes, that's exactly what Judge Friendly said.
Speaker: (Inaudible)
David Scribner: That's right, the -- as I noted before, if the nature of the nominations wouldn't make any difference in the last analysis because if the eligibility requirements was severe, it doesn't matter if I can nominate ten other people. If the eligibility requirements affect them, then following Judge Friendly's opinion -- Judge Friendly's approach as is clarified I think in Judge Lumbard's approach, then I would have the right as a nominator to say that I have been denied my right to nominate these other people, forget about myself now, these other people because the eligibility requirements are so severe as to disqualify them and thereby denying this right, the equal rights to nominate. I think, however you look at it in the last analysis as the eligibility requirements and shall it go the Secretary of Labor, must it go the Secretary of Labor, or can an individual member at any time proceed to the District Court say my right to nominate has been deprived because of the severity of the nomination procedure -- of the eligibility requirement. I might just attest a few of the items here if I might for a moment. Take for instance the question of the five-year membership requirements. That's one of the eligibility requirements. Now, if the Secretary of Labor were considering this matter, what would he take into account? And we know these other things that he has taken into account from the official rules and decisions of the Secretary of Labor's office. Well, they would say, if this union that has a large influx of new members, is it a union where there are more men than jobs? Is it a union where you have accretion constantly? People going out, new people coming into the union, then the quality of the five years could be determined. Is it reasonable? It is unreasonable? One year might be unreasonable under certain circumstances. Ten years might be perfectly reasonable under other circumstances. Now in this situation, there are more engineer -- more jobs than engineers can fill. And the Secretary of Labor would consider whether or not there are enough licensed marine engineers now in the industry which would indicate there's need for more. Or whether or not, there is a shortage of engineers which means no new members are coming in and that those who are in have been in for a long time. As a matter of fact, that's one of the problems of the maritime industry. Take the other question. Take the question of the seatime employment which is another consideration, a 180 days is required of seatime employment in each of the two or three years preceding the nomination. Well, that's a number, that's a number. It means -- on its face, it's completely meaningless unless there was some intensive research and analysis of what that means in the particular industry. This is the Maritime industry. What are its consequences? Another thing, how many persons, and is this a factual matter that can be determined almost immediately, does this affect? Does this mean that 95% will be disqualified? Does this mean that 5% will be disqualified? There is absolutely nothing in this record which was the basis for any determination by the District Court, the same is true by the Circuit Court, the same is true on the five-year element. The reason there was no record to go up to the Court of Appeals, is that it was dismissed on a motion to dismiss down below. So, we're caught in a situation where the District Court, where the federal court, the Court of Appeals has made a determination that it's unreasonable. Oh, that's exactly the sort of thing that it could not have done and should not have done, that only the Secretary of Labor under the scheme of the Act should have done it. Another thing, take the situation wherefore the office of District President which by the way none of these respondents have sought. They -- none of them sought office. They have nominated themselves for office. None of them have sought to nominate anybody else for that's (Inaudible). Now another determination might come, is it evil on its face? Can it be said that it is evil on its face that merely by stating it? It is an unreasonable qualification? It might well be. On the other hand, it might not be. Suppose I said, before you had a thousand locals within the particular organization or subbody and you had a thousand officers or more who had served one day, it doesn't matter as does the -- as the constitutional provision doesn't say how much you can serve, you can serve one day, as a faithful time appointed office. Well, you might have a thousand people. It might not be unreasonable. On the other hand, if you had 50, 10, 5, 2, it might be unreasonable. But there's nothing in the consideration of the Circuit Court which will go to that issue. All the Circuit Court did was to put together the two items and say, this is the denial of the equal right to nominate although, either by itself would not necessarily violate either of the statute. I say that's the evil in this situation. I say that's the evil that Congress saw and tried to avoid, to keep a uniform labor policy and to maintain a minimum interference with the affairs of the union.
Earl Warren: Mr. Hall.
Burton H. Hall: Mr. Chief Justice, may it please the Court. At the outset, I'd like to formally to request permission to submit copies of the Labutti (ph) decision. Let me clear up one fact, that decision is dated last Tuesday. It -- I was notified it -- of it late Thursday afternoon on the date it was printed.
Earl Warren: You may --
Burton H. Hall: I obtained it Friday and I sir, gave a copy of it to my friend as quickly as I could which is yesterday morning at 11 o'clock. The plaintiffs in this case bring suit to protect the right to nominate candidates, not their right to be candidates. The record which that -- the complaint which is at pages 2 to 10 of the record, sets forth the provisions of the union constitution bylaws. Most of which were suddenly imposed upon the members on the very eve of this -- of this election. I was about to say this last election, actually it's the first election. Since this low -- this union, this district, has never held a general election for officers before, all except two of the officers, two branch agents having been appointed to their office. The complaint alleges that the members' rights to nominate candidates and to vote for the candidates of their choice are being infringed by a set of provisions which with one hand prohibit them from nominating anybody other than themselves. And with the other hand, prohibit them from nominating themselves. The prohibition on nominating anybody other than themselves is in the bylaws. The prohibitions of nominating themselves are in these new eligibility requirements which are not entirely as my friend stated. For instance the eligibility rule for pre -- for the District Presidency and for the president -- the all national officers, the national is not a party here but it is of course related, is that the man -- the person to be nominated, that is the nominator under the bylaw, must have served as a paid full-time officer. Thus, for instance, the elected treasurer, the former New York Local, the largest local in the union until it was dissolved in 1961 was declared ineligible as I noted in the footnote. I think Footnote 22 of my brief because his office was not a paid one. I might add although it's not in my brief that he had actually served as a paid member of the election's board for a few days, but that was not held suitable to make him eligible. The result of course of such a rule is to make it impossible for the -- for any member even if the bylaw weren't existing to nominate any but a handful of candidate -- choose from any but a handful of candidates, virtually all of them can be expected to be on the administration team. It's not impossible in other words to put up a opposition slate. As per all other offices in the union, the candidate to be nominated or to nominate himself must have served 180 days of seatime for each of two years in the three years immediately preceding the election. This requirement in other words, they just served to have half of each of two years, in the recent last two years, would eliminate a very large portion of the membership. It's disputed in the record. The plaintiff's affidavit asserts that that it would eliminate approximately half the members from availability or from the power to nominate themselves. Well, the defendant's affidavit asserts that it would eliminate only about 25% of itself but it would nevertheless eliminate a substantial number just by that. At any rate, these plaintiffs are -- and along with a great many of their fellow members are unable to nominate any candidate whatsoever for any office whatsoever and it's primarily of that prohibition of which that they complain. Now, the issue here is not whether that's reasonable or not. The Court of Appeals has held that it is unreasonable. Moreover, it would -- the Court of Appeals held that it would have been as such restrictions on the right to nominate, it would have been invalid at common law, long before the Labor-Management Reporting and Disclosure Act is passed. However, the union has not petition for certiorari on that issue. The union has come to this Court only the question of jurisdiction, claiming that even though these provisions do infringe the members' right to nominate candidates, still the Court had no jurisdiction to over a complaint aimed at attack -- attacking these restrictive provisions. I might add that after the Court of Appeals decided this case, the case was remanded to the District Court. The District Court then considered other defenses raised by the defendants, namely latches and the claimed failure of the plaintiffs' to exhaust all their internal union remedies, found these to be no barred to the complaint and issued a preliminary injunction. There was no appeal taken from that decision so of course those matters are not before this Court either. The issues before them boils down as to whether provisions of the union constitution which deprived members of any of the rights set forth in Section 101 (a) (1), equal on democratic rights to vote, to nominate candidates, to consult.
Arthur J. Goldberg: Mr. Hall, before you continue --
Burton H. Hall: Yes.
Arthur J. Goldberg: -- tell us what the Act (Inaudible)?
Burton H. Hall: The -- by the time the Court of Appeals acted, an election had begun. It had not begun at the time the suit was brought. It began about three weeks later with the mailing of ballots out to members and over a three-month period, they came back again. By the time the District Court acted these ballots went -- they had come back or were coming back. The District Court thereupon enjoined the counting of these ballots, declared this election not to be carried out. The plaintiff's then brought a motion to require the holding of an election so -- on the obvious ground that if there's no election and the rights to vote and to nominate candidates were completely denied. That motion is still pending. Several questions, several points -- I don't want to quote a remarks made in Chambers but sir, it's my understanding that the reason why that motion is being held up is the very fact of the considerations by this Court of an entire question of jurisdiction.
Arthur J. Goldberg: (Inaudible) revised constitution?
Burton H. Hall: I don't know that any future election will be held under the revised constitution but at a convention held this year, there are annual conventions, the constitution was revised and certainly certain changes were made which do changed the nomination's requirement, make them more liberal. I want to say I don't know the future election will be held is apparent from the union's resistance to holding a new election in the district right now that they do not want to or the officials do not want to hold an election under these new provisions. As to the national election, that won't be held until 1968 and I doubt very much whether it would be very difficult for the officials to reamend the constitution in the meantime, to put it truly that it should be off. May I point out that -- I'm jumping ahead now in the a late footnote in my brief, I think Footnote 22, I refer to an instance which I think explains one of the inadequacies of the Title IV remedy. The treasurer had said of Local 33 in New York, the biggest local in the union, a former treasurer, had nominated himself for a national office. Several other members have also nominated themselves for national offices. They are required under the national constitution also to nominate themselves only. The -- so they -- they have one, the election -- after the election was held in the summer of 1963, they also petitioned -- protested to the Secretary of Labor. The Secretary for reasons which are not explained decided to bring a suit with regards to the Pacific Coast District but not with the regard to the national. Now, I don't know how proper it is for me go into this which is not in the record. But I have here a copy of a letter which is sent to Mr. (Inaudible), the treasurer. The letter is a covering letter. It covers a letter -- copy of a letter which had been sent to me in an attempt to explain -- the effort to explain what had happen. The letter goes on for about two pages reciting changes in the new constitution and then in a final paragraph it says, taking into consideration all the necessary factors without specifying anything in particular just listing a mess of them. It says that it was our opinion that the Pacific Coast District case presents a more promising prospect for successful litigation. I suggest this that, as a very uncertain that this indicates as I think the other -- the whole nature of the Title IV remedy indicate that this is a -- entirely uncertain and inadequate protection to democ -- for democratic rights of union members. I'll repeat that point a little later if I get to it.
Arthur J. Goldberg: (Inaudible)
Burton H. Hall: Oh, no. The -- no -- oh, I'm sorry to get off the subject. No. The issue here is the jurisdiction of the courts over the complaint. Now, the complaint of course is not concerned with any one election. It's concerned with the rights to nominate candidates and to vote, obviously that refers to all elections in the future.
Arthur J. Goldberg: What is the term, the maximum term (Inaudible)?
Burton H. Hall: Three years. That's the maximum term under the new Act. I (Inaudible) -- or to fill out something else I've said, the district was created in 1961. All districts were created in 1961 and local unions abolished. Two officers, President and Secretary-Treasurer were simply appointed to be (Inaudible) officers of this district. Also, various business agents of the local were appointed as branch agents of the -- for the various -- for the districts. All officers except two then hold their offices at the moment by appointment. These two have to do with vacancies that occurred when special elections were held. In Jacksonville and I think in Galveston.
Arthur J. Goldberg: (Inaudible)
Burton H. Hall: Yes.
Arthur J. Goldberg: (Inaudible)
Burton H. Hall: To some degree but it doesn't infringe the Section 101 (a) (1) right. The 101 (a) (1) guarantees that every member of the labor organization, the rights to nominate and so on, equal rights and privileges to nominate, subject to reasonable rules and regulations in the union's constitution and bylaws. So obviously, a reasonable eligibility requirement would not limit the right as guarantee. It will only limit the fact of -- the freedom to nominate. An unreasonable rule or law would infringe the right as guaranteed by that Section. Now, the holding of the Circuit Court which I think is unchallengeable and has not been challenged on this appeal as if these -- these set of provisions does -- is in fact an unreasonable restriction --
Arthur J. Goldberg: (Inaudible)
Burton H. Hall: There's no need for evidence because what the complaint alleges are simply the existence of these two -- these various provisions in the constitution and bylaws. Now, there's been no denial that they actually exist so that all of the material is before the Court. Is never -- never any request for a hearing to explain the nature of the provisions or anything like that. All of the relevant evidence is in the papers. The problem of the rights of union members and especially in electoral rights of the union members has been a matter of considerable concern for a good many years to virtually anyone of -- who had -- who sides with and is friendly to the labor movement. Organizations like the Civil Liberties Union and the Workers Defense League both of which are amici here beside, the Association of Cabinet Trade Unions have been active in this area pressing either for a voluntary Bill of Rights for union members and for voluntary review such as now exists in the United Automobile Workers, and also for federal legislation to protect the democratic rights of union members. This is a problem which has grown up primarily as a result of the growth of an establishment inside some of the unions, a bureaucratic establishment, very much like the establishment exists in government and in large business corporations. And the problem of protecting union members has -- have been seen generally as a right of protecting them against the power of these establishment to oppress them within their union. The -- a very similar question or issue involved -- a similar issue came before this Court in the famous case of Steele against Louisville & Nashville where this Court inquired into the powers of a union over an individual working man, subject to the collective bargaining agreement, subject to the powers that the collective bargaining agent had under -- on its -- under the Railway Labor Act. This Court pointed out that the Act had conferred upon the collective bargaining representatives, a power similar to a legislative body to restrict or expand the rights of individuals. And it pointed out that this implied a corresponding duty to protect the rights of individual members. In fact Justice Murphy went even further and said that there would be a serious constitutional question, if it were not to the fact -- if there were no power of the courts to protect the rights of individual members against the powers of the union leadership or the establishment to injure the individual. The same thing of course applies to intra-union rights and it's this area that which the Labor-Management Reporting and Disclosure Act attempted to go in order to protect the rights of members. The history of the Act makes clear I think what the purpose of the Bill of Rights was and the provision under which we're dealing here. The Act as you know begins with a -- as Your Honors, begins with the recognition that the state decisions had provided a substantial measure of pre-election protection of union members' democratic rights but had provided only inadequate protection after the election for abuses which occurred during the election. So, when the Act is originally drafted and the committee originally dealt with in March -- February of 1959, it provided a new post-election remedy that is, that it conferred upon the Secretary of Labor, the power in certain instances to set aside the results of an election and order a new one where a violation had occurred and where the violation was so serious as to affect -- as probably to affect the outcome of the election. But the -- but even the drafts of the original bill were very careful to preserve all existing pre-election remedies. Now, these pre-election remedies, being state remedies had been brought -- had been based on the theory of contract, that the union constitution is a contract between the members of the union. As a practical matter, many of the cases went beyond anything said in the union constitution. I have cited several cases, several New York cases in my brief and two of them are (Inaudible). There was nothing whatever in the contract to the -- of the constitution that was a much help to the plaintiffs. But the courts there as the courts have elsewhere, read the union constitution in the light of the democratic purposes of unionism itself and in the light as Justice Hammer said, if the -- of the -- free traditions of a free people proud of their democratic heritage. And in that light, it gave protection to the members' rights to have an election and have the election fairly conducted, inducing the Court set forth an elaborate series of protections which should be carried out including the use of -- not including the use of voting machines but the appellate division -- modified to inquire -- require the use of voting machines. The -- at any rate the bill as it reached the Senate reported out by the committee provided a post-election remedy and was -- and protected all existing state pre-election remedies, but the Senate found this inadequate. Essentially, the Senate took the position that there should be a federal pre-election remedy and it's for that reason that the Senate undertook to add a Bill of Rights to the bill as it -- as the bill reached it. Now, the Senate passed one Bill of Rights, was unsatisfied with it and passed another Bill of Rights, the Kuchel substitute and this -- even the substitute went -- underwent some modification later on. But the clear purpose of the Bill of Rights was to protect -- was to provide direct relief. Under the Kuchel amendment, it became enforceable at the suit of the member himself where union members' democratic rights including the rights to nominate candidates and to vote. Now, I've said that I would get in a moment and I'll try to take -- make just a moment into comparing the pre right -- the pre-election rights to nominate candidates with the post-election Title IV rights. I've said that the Title IV remedy is inadequate and I'd like to list the reasons why. First of all, because it is a post-election remedy and here I refer to the quotations in my brief and in the Workers Defense League's brief from a study reported by Professor Clyde Summers in the a law journal. The reason why I regard that article as important as it is, is that it is the result of a study commissioned by the New York legislature, the Labor and Management Improper Practices Act. Of all New York cases reported and unreported, most of them unrep -- of course unreported, dealing with internal union affairs and internal union elections, the report there covered several hundred cases. It involved -- is to be subject so they're in the records that involved discussions with the lawyers who are active in most of it. The conclusions which Professor Summers reached and which the committee -- which the official reporter reached where that pre-election remedies were the only ones of any practical value, post-election remedies were utterly unsatisfactory because they provided no -- too little protection to the members since they came so late and too much burden to the union. Post-election remedy after all involved the setting aside of an election, the throwing of the question of the entire structure of the union as to who is going to be -- who is entitled to be the leader of it. It involved exacerbating any factional struggle which may exist. And it involves the expense and nuisance of an election that recalled for by the ballot. That is one reason for instance why in all of the New York cases that Professor Summers came across, he find only one in which such a post-election remedy was granted. And that was a case where the officials where accused of very serious financial misdealing and a new election was necessary to protect the treasury from being dissipated entirely. In all other cases, the Court -- in all the other post-election cases, the Court has found some reason or rather -- were not moving. Instantly on that point and in making that point, I'd like withdraw any inference that I have -- that may have been improper activity in -- the secretary is not moving against the national union while it did move against the Pacific Coast district election, this is a problem which confronts anybody who attempts to upset an election already taken place because of its seriousness. In fact, I've cited one case where the Court went in to this very question. This is Ford against Kearns where the claim was that the union president had used the union newspaper to campaign for reelection. The Court very clearly said that it was the duty of the complaining member to bring suit before the election that since the complaining member waited until the election occurred and then brought suit to the very extreme relief of offsetting the election, therefore no relief were -- that the election would not be upset. That of course is the prime reason and the most important reason why a Title IV remedy is inadequate standing by itself. The Title IV remedy is better than the remedy that it took -- was place it took, namely the state post-election remedy. But it's not adequate to fill the bill as far as whole remedies are concerned. Another remedy is again the power of the bureaucratic establishments which has gone up as I say inside many unions to make its influence felt within the Sec -- the Department of Labor, so that as in the rank and file union members seize it, when he appeals to the Secretary of Labor to set aside the results of the election, he's appealing in a sense, in a large sense, to his enemies' ally to protect him against his enemy. I --
Arthur J. Goldberg: (Inaudible)
Burton H. Hall: I don't know Your Honor. I know that's how a great many members see it. The -- pardon me, I think I'd mention one reason by -- I believe a Title IV remedy is inadequate as a single remedy protection. The remedy itself takes approximately two years or maybe longer to effectuate. Under the Act, the members require an exhaust remedies for three months at least. After the election was taken place, he then goes to the Secretary of Labor and that process takes 60 days. The Secretary of Labor if he then -- if he decides to move, then files a suit which will take anywhere from one or two or -- years or longer to end its way to trial. Now in the course of that time, it's entirely likely that the term of office would have expired and new election would have been held, it will be about to be held, and the case in all important respects will have -- become new moot. We'll be dealing with new violations by the time the case comes down, not within the old ones, will be no longer of any importance. There are some instances in which the Secretary of Labor is able, despite this time limitation, to provide some kind of a remedy. But there are many other instances whereas remedy would be ineffectual entirely, simply because of the impossibility of getting to trial until the current terms of office had expired. I want to emphasize that Congress did not view the Title IV remedy as a sole reliance at any rate. Even the drafters of the bill saw a dual protection for democratic rights in the union elections. The pre-election remedy which they regarded first as a state remedy, and secondly, the post-election Title IV remedy. When they came to the matter, they saw merely that one -- that one of these two remedies was inadequate as it existed. So they replaced the state post-election remedy with a federal post-election remedy. When the matter got to the Court and to the Senate, the Senate decided to build up the other avenue of protection by providing a federal pre-election remedy to supplement and go along with the state pre-election remedy. To knock down half of what Congress built, namely the pre-election remedies, would be to emasculate the Act and to leave only the weakest of the protection standard which Congress sought to create. That's why primarily, I want to contend that if it were held as this -- as the petitioner is asking this Court that there is no jurisdiction in advancing an election, no jurisdiction under Title I to protect democratic rights to the members, then these extremely valuable rights, the right to vote for candidate of one's choice, which this Court only last June in Reynolds against Sims held that the essence of the democratic society, then these democratic rights would have no real protection. It will only have a very uncertain long delayed and inadequate possibility of protection under Title IV of the Act.
David Scribner: If I may --
Earl Warren: Mr. Scribner.
David Scribner: First, I'd like to clarify the situation as it affects the question by Mr. Justice Goldberg on the status of the election itself. Actually the ballots have been impounded. They are now in the possession of the Clerk of the District Court awaiting determination of this Court. In the event, it is found that the District Court had no jurisdiction then obviously those ballots would be counted. If it was held otherwise, then we go on to another stage of the proceeding. And that was arranged for by the way when I made an application to Mr. Justice Harlan for a stay, and my adversary and I, before Mr. Justice Harlan were able to come to that understanding so that we preserved the res and otherwise we -- that had not been done, we would not have a subject matter to preserve if there were reversal by this Court.
Arthur J. Goldberg: Mr. Scribner, do you (Inaudible)?
David Scribner: Oh, yes indeed. Now with the reference to Professor Clyde Summers interests me. The position of the respondents actually and of the amici who is supporting respondents is really not in full reliance on the Second Circuit's decisions or reasoning. In fact, it appears that they distrust the full validity of the decisions. They rely now on something else and that is what Professor Summers has suggested and which has been rejected in every court, District Court that has heard it. And that is that Section 401 (e) not only allows for post-election remedies but also allows for pre-election remedies. It's a sort of thing where it's tidy. Section 401, if you have a problem under Section 401, the member wants to go into the District Court, well, he may. On the other hand if after an election, then you go to the Secretary of Labor and it creates a sort of tidiness which is wholly out of keeping with what the Congress said because there is no question that insofar as 401 (e) rights are concerned, they must go the Secretary of Labor and they can only go after an election. As a matter -- the proof of that is in an exception. That exception was provided on the very day that the Bill of Rights was adopted. No, that the culture amendment was adopted. What happened there was as they were considering the amendment, that is the Bill of Rights as amended by Senator Kuchel on April 25th, 1959, Senator Javits presented a different problem. He said, "Let's make sure that we give the right of a member, of a candidate rather, to have equal treatment in respect to the distribution of campaign material". And they adopted on that day an amendment to Title IV which provided that in that particular instant and by the way in no other instance in the Title IV may a candidate go directly to the District Court without going to the Secretary of Labor. In other words, we have proof -- simple proof of the rule by the one exception that was permitted. Now, the attitude taken by Professor Clyde Summers has been as I said considered by the other courts, and I said it's an interesting suggestion that might be quite tidy but it happens not to be what the legislature has provided, and -- oh, yes, we referred to that affirmance that referred to -- in the decision of the Court of Appeals as a matter of fact. As a matter of fact, the Court of Appeals here refers to it and says, “Gives the attitude to the court's honor.” And says that issue was not the way it was -- it was not the way it was considered certainly by the Court of Appeals. They did not adopt it. Now -- and just one other item and I close with that, it's hardly my function to protect the integrity of the Secretary of Labor at this point based on what has been said about him a little while ago.