Earl Warren: -- 891, W. Willard Wirtz, Secretary of Labor, United States Department of Labor, petitioner versus Hotel, Motel and Club Employees Union, Local Number 6. Mr. Weinstein.
Harris Weinstein: Mr. Chief Justice and may it please the Court. This case comes to the Court on the writ of certiorari to the United States Court of Appeals for the Second Circuit. It began when the petitioner, the Secretary of Labor sued in the District Court in the Southern District of New York to set aside an election that the respondent, a local union held in May 1965. The issues arise under Title IV of the Labor Reform Law of 1959 which is commonly known as the Landrum-Griffin Act. As the Court knows, the scheme of that title is to set forth in one elaborate section, Section 401, a variety of conditions and requirements that are applied to the union elections. The first issue in this case involves one of those requirements drawing out of a provision of Section 401(e) which is contained in the appendix to our brief towards the top of page 40. That provision, Section 401(e), among other things deals with qualifications that a union may impose upon those who wish to be candidates for elective office. And it says that all members in good standing shall be eligible subject to and this is the pertinent statutory language, “reasonable qualifications uniformly imposed.” The respondent applied what the district judge has called a prior office holding requirement. It required those who wish to be candidates for anyone of the 31 paid full-time positions open in the May 1965 election, to have previously been members of the body of the union called its assembly which existed since 1951 or instead to have been members of a body called all the old Shop Delegates Council which existed before 1951. Our contention which the District Court accepted and the majority of the Court of Appeals rejected is that this is an unreasonable requirement within the intention of the statute. The second issue before the Court grows out of the procedures established in Section 402 for remedying defective elections. That section sets up a multistage procedure. The union member who is dissatisfied must exhaust internal remedies. He complains to the Secretary, the Secretary investigates and then if he thinks it warranted, if the union has not taken voluntary action, he bring suit to set aside the election and to seek the relief of a new election under his supervision. The second problem here goes to the conditions the statute prescribes as the requisite to the grant of the relief of a new election. The statutory language is in Section 402(c) which is towards the bottom of page 42 of our brief, and it says that the election shall not be set aside unless the District Court finds that a violation of Section 401 may have affected the outcome of the election. The District Court here held that even though the prior office holding requirement wasn't its view unreasonable, it could not say that the imposition of that requirement may have affected the outcome of the election and we contest that ruling here as well. There's a third question that need not be reached if the first two are answered in the Secretary's favor. And this was a question akin to that previously decided by this Court this term in the Local 125 of the Laborer's Union case. It goes to the relationship that must exist between the charges the Secretary makes in Court and those that union member makes in his complaint to the Secretary. Here, the union members complained only with the prior office holding requirement, both within the union and to the Secretary.
Speaker: The second question was not report in here (Inaudible).
Harris Weinstein: That's correct, Justice Harlan. There was a concurring opinion in the Court of Appeals resting solely on that second question. The Secretary in his investigation believed he had uncovered evidence of three additional violations of Section 401 committed in connection with this election going to the fact that some officers were appointed rather than elected an alleged lack of timely notice of election districts and alleged interference with voters at the polls. The district judge struck these allegations on the ground that the union members have not complained upon and the Court of Appeals affirmed. There's also a fourth question which has been interposed, I believe, for the first time in respondent's brief in this Court and we have not dealt with it in our brief and I will after stating the facts and this is an argument that because the respondent has changed his prior office holding requirement and plans to hold a new election about three weeks from now that this case is moot. Now, if I may, I should like to turn to the facts of this case which are rather complex because of the complex organization that this union has given its government. The union represents, at least to the time of the May 1965 election, approximately 27,000 people employed in hotels, motels and private clubs in the New York City area. I believe it covered all boroughs except Staten Island. The union for purposes of its internal government is divided into seven districts. Six of these are geographic and each of the geographic districts covers all of the hotels and motels within its boundaries. The Seventh District covers all of the private clubs within the union's jurisdiction. The union, both with -- the union as a whole within the district's -- within each hotel or motel or club is divided into departments or craft units and there are basically five of these. The housekeeping workers, the kitchen workers, the dining room workers, the banquet workers and bar workers, each have a department, a craft organization. And then within each hotel, this craft organization is reflected in the composition of the shops. Each dining room is a shop, each banquet room, each bar and so forth. Now, the general organization of the overall government of the union is somewhat complex and the hope that it might aid rather than add to confusion, I've had prepared a rather summary chart of the union's overall government and ask the clerk to distribute it to Your Honors. And if I may before coming back to the craft organization, I'd like to describe the people who are listed on this chart and how they are chosen. Because it is only the people listed on this chart who, since 1951, have been eligible to run for the full-time paid positions. At the top of the union, their major officers are four general officers, the president, the secretary treasure, the general organizer and the recording secretary. These are elected by the membership at large. Next, there are seven vice presidents who are elected from the seven districts that I mentioned before. One from each and each vice president is essentially the presiding officer of his district. Now, there is a provision for other vice presidents to be appointed by the assembly. The record is silent on when this provision whether this provision has ever been invoked. The respondent asserts that is not and we know of no evidence to the contrary. But the provision is intended to allow other vice presidents to be appointed by the assembly for the purpose of making sure that there is at least one vice president from each of the crafts. Then, there are 10 delegates to the New York Hotel and Motel Trades Council. These are appointed from the -- by and from the assembly. Generally, the record says, they also hold elective positions. The Trades Council that they belong to, represents a multiple of unions and group bargainings with the hotels and motels within their jurisdiction. Now, those who I have mentioned up to this point compose the administrative board of the union and the union's president testified below that these are the people who on a day-to-day basis run the union. Now, in composing--
William J. Brennan, Jr.: But I gather -- did you say Mr. Weinstein that there were 10 delegates and seven vice presidents. This would look as though the administrative board should be 21 --
Harris Weinstein: It can vary from --
William J. Brennan, Jr.: And you said the fact that they're less than that because some of the delegates are also --
Harris Weinstein: Yes, that's correct, Justice Brennan. I didn't intend to give any other impression. It can vary up to 21 but our understanding is it is not and it could be as few as 11 if all 10 were either Vice President or a general officer. The next basic group in the union is the executive board which meets on a monthly basis and its voting members constitute the members of the administrative board plus about 50 other members. These 50 other members are chosen from the overall assembly at a rate of one man for every 500 union members. Now, in 1965, 27,000 union members would have meant 54 other voting members of the administrative board. In addition, all of the union's business agents are nonvoting members of the executive board. They can sit, they have a voice but they do not vote. 20 business agents are elected and I've noticed that our brief in page, top of page 4 inadvertently says 31 and it should read 20 there. They are elected from the seven districts into which the union is divided. In addition, the assembly may appoint as many other business agents as it thinks desirable or necessary. While the record shows that some other had been appointed, it does not show the précised number. These people, together with all elected assembly -- other assembly members, compose the union's assembly, the basic body that makes a man eligible to run for office.
Speaker: This --
Harris Weinstein: This --
Speaker: -- then, could you describe it and did this as -- from the beginning or is it which in their involvement?
Harris Weinstein: It began -- the basic plan, as it now exist, Mr. Justice Harlan began in 1951. There was previously a body called the Shop Delegates Council which filled the function of the assembly. Now, it may be that there was also an executive board and administrative board at that time but before 1951, as I should come in a moment if I may, what a man had to do to become eligible to run for office is somewhat different than he's had to do since 1951. These other assembly members are approximately 325, 350. There are about a total of 400 assembly members including the 50 who sit on the executive board. They are chosen from one, two or three election districts within each of the seven districts at a rate of one assembly man for each 75 union members. Now, the full-time paid positions on this chart are essentially three groups, which are four general officers, seven vice presidencies, the 20 business agents. A person who wished to run for one of those offices in May 1965 had to satisfy the prior office holding requirement. He did not have to satisfy that requirement to be appointed say as an additional business agent or to run for any of the other positions listed here. Now, the union as well, as I indicated earlier, has a craft structure. Each shop within each hotel or motel or club, at least I think it has five or more members, elects its own representative called the ‘shop delegate' or the ‘department delegate' variously, who fills the function of shop steward. He is essentially the leader of that shop. Before 1951, there was a group that is now referred to as the old Shops Delegate Council. Every shop delegate or steward who held such a position before 1951 belong to that council. However, when the assembly was created, shop -- being a shop delegate did not qualify one for the assembly. So in consequence, if a man was a shop delegate or steward before 1951, he is eligible to run for one of the full-time paid positions. On the other hand, if he has had that position since 1951 and only since 1951, that does not give him eligibility for paid position. The shop delegates, the stewards however, have a variety of functions within the union. For example they process grievances at initial levels. They also represent the shop members a variety of functions in the union. They engage in the shop committee which is a group of all people, all shop delegates and I believe assembly members from within a hotel. They participate on a district council; the body which the bylaw says governs that -- one of the seven districts. They, together with the vice president, the business agents and the assembly members from that district meet together and govern the district. And then both on a district basis and a union wide basis, they participate in so-called department activities. These are meetings for example of all kitchen delegates or all banquet delegates which focus on problems that in -- peculiarly of one trade. The union president also testified at page 52 of the record that they do a great many of the things in a day-to-day operation of the union. One example was participation in the social services the union gives and another example was participation in legislative lobbying type activities. The 1965 election was the fifth that the union has had since 1951. There had been apparently considerable opposition in 1951 and perhaps two or three complete slates. But between 1951 and 1965, there was no organized opposition to the incumbents. There was a smattering from time to time. One election was dispensed with for a lack of opposition but all of the others were held. The opponents to the incumbents were overwhelmingly defeated in each of these intervening elections. And in each of these elections including 1965, one full slate was offered, called the ‘Administration Party' and appeared on the first row of the voting machine. The persons who were on that slate were chosen by the caucuses called by the incumbents and attended by union members selected by the incumbents and this is what it has been called, the ‘Administration Party'. In 1965, the ‘Membership Party' was formed. It was the first organized opposition to the Administration Party since 1951. It sought to mount a slate that while not complete perhaps was substantially so at least for the full-time positions. They sought to offer a candidate for each of the four general officers for five of the seven vice presidencies, for eight of the 20 business agent positions. They also offered ten -- these that I've just mentioned, the general officers, the vice presidency, the business agents are all subject to the prior office holding requirement. They also offered 15 candidates for other positions to which this requirement did not apply. And these were for 10 delegates to the international convention of this union. There were ten positions open. And then they offered five candidates for the 370 odd open positions on the assembly. The application of the prior office holding requirement meant that eight of the 17 who wish to run for the full-time positions were disqualified. Others were disqualified for failure to meet a requirement that is not an issue here, that a candidate be union member for two years in good standing before the election.
Speaker: What was the total number of eligible candidates that's call eligible candidates couldn't come with this --
Harris Weinstein: Justice Harlan, of the 27,000 union members, approximately -- I think the number was 1,725. About 6% or 7% of the membership were eligible to run. Now, of that 1,725, 1,100 gained their eligibility for membership on the old Shops Delegate Council before 1951. Of the remainder several hundred of course were on the Administration Party slate in this election are taken at the most. There are 1,700 taken at the least, there are a few hundred. Our position is that whatever it is, 7% of the total membership is just too few to be reasonable. Now, the net result in this election was that the membership party ran two candidates for general officer; these were for president and general organizer. No candidates for vice president and two candidates for business agents. They also ran eight people as delegates to the international convention and two as delegates to the assembly. In the election, about 11,000 and 40% of the union membership voted where there was opposition, the membership party lost by a margin averaging seven to one. Now, if I may first turn to the problem of mootness. As I indicated before, this argument is based on two facts. One is that there is a new bylaw that was adopted I believe in December 1966 just prior to the trial on this case. It adds to the qualifications for office. Those who have served as shop delegates since 1951 and any other person who has been a union member for at least five years at the time of election and the contention seems to be that in respondent's view, this is plainly a proper requirement and second, there's going to be a new election with this allegedly proper requirement and so there's no need for the courts to proceed any further.
William J. Brennan, Jr.: Have you any idea Mr. Weinstein how many above the 7% on the 1,700, this adds to the list of eligibles?
Harris Weinstein: Justice Brennan, I found nothing in the record. They say that it adds about 14,000 or 15,000 that they are16,000 or 17,000 who are now eligible.
William J. Brennan, Jr.: Largely union members of over five years, is that it?
Harris Weinstein: It would probably be. We don't -- I doubt that anything like that number would have been members of the -- let's say would have had the function stewards. However, for reasons that are not clear --
William J. Brennan, Jr.: Well, I thought you said that the new color that -- one may run for --
Harris Weinstein: Yes, Justice Brennan.
William J. Brennan, Jr.: -- these options if he'd just been a member for five years.
Harris Weinstein: Yes, that's correct.
William J. Brennan, Jr.: Yes.
Harris Weinstein: But I don't mean to suggest that we think that's a reasonable requirement and this --
William J. Brennan, Jr.: I'm just trying to get to how many this adds to --
Harris Weinstein: I would judge from the evidence of turnover on this record that 16,000 or 17,000 is probably a close approximation of those who had been in the union for five years and I would -- Mr. Cohn would be more up on this than I but I would assume a relatively small number though is qualified by reason of being stewards or shop owners. But this --
William J. Brennan, Jr.: I should suppose that you would add that into that many who will become eligible by reason of five years membership, the shop delegates would have to be from among those who have less than five years membership that are also shop delegates.
Harris Weinstein: Yes, that's correct. And again, that would be perhaps a smaller number. But I'd like --
William J. Brennan, Jr.: Un -- under the new rule, do they -- and you appoint an officer with less than five years.
Harris Weinstein: They have also amended their bylaws to change the appointment provisions and although that allegation was stricken from the complaint, I understand that they have -- and again, I'm not sure that this is in the record that they have changed that appointment provision in a manner that it would have been demanded in a supervised election. But this new requirement, this new bylaw for reasons that are not quite clear from the face of that was before the District Court and the District Court did say that in his view, this was an unreasonable requirement and that matter as best as I can tell was not raised in the Court of Appeals and I would not think that it's appropriate in this Court to be arguing that it is clearly a legal one but whether it is or not, it seems to us that that doesn't moot the case for the reasons that this Court set out in the decisions earlier this year. The congressional concern that this Court talked about there was that incumbents once having come in to office unlawfully, should not be allowed the opportunity to perpetuate themselves an office by some improper procedure. The public interest, as we understand those decisions, requires a laboratory type of election under the Secretary's supervision to guarantee that there is no future violation and we would think that whatever the violation, whatever the union does in an attempt to cleanse itself after a suit begins, this just doesn't moot the Secretary's demand for a supervised election. Of course in this case, we think it even less appropriate mootness when the new bylaw has been called unreasonable by the district judge and where one of the allegations stricken from the complaint was a charge of improper conduct are proposed.
William J. Brennan, Jr.: Well, I gather, does that sum up that basically, the Secretary's position is that you've already said a violation being found, nothing in the union can do to clean it up that the statute contemplates that there must be a laboratory election.
Harris Weinstein: Once the suit begins, we would say that the union's opportunity for self cleansing ends when the suit is final.
William J. Brennan, Jr.: Unless I gather, the Secretary negotiates some kind of settlement.
Harris Weinstein: Yes. But I --
William J. Brennan, Jr.: While the Secretary may still do that.
Harris Weinstein: I assume that he can always settle his litigation but I don't know that on what terms that would be done but at least the union cannot control of the case away from the courts or from the plaintiff. Turning to the issue of reasonableness, the statutory word of course is a very flexible one and I imagine that in theory, it could be given a variety of meanings. Reasonableness, I assume, means different things in different context depending on the purposes that the Congress or the legislature had in mind. I don't think that either of the courts below stated a generalized interpretation that they thought would be pertinent. The respondent here in the amicus the AFLCIO, offer an articulation which I think is the worthwhile starting point for discussion of the problem. They speak of reasonable meaning that a union may seek what they call a legitimate and/or objective by any rational or appropriate means. I don't -- those words of course, I don't think, could solve the problem because whatever reasonable it may mean, I don't know that it's anymore clear what legitimate means or what rational or what appropriate means. But I assume what they mean in the context of the facts of this case is that a union may seek by a rule to eliminate people without experience from being candidates and that any rule that is logically calculated to eliminate the inexperienced is a reasonable one or appropriate one under the statute. The case I guess could be disposed of on their grounds because the facts, I don't think, would meet their standards. For example, we would say there's nothing rational in a qualification that allows 1,100 people to run for office when their experience antedates 1951 or that excludes from running from office al of those people who have been shop delegates since 1951 and who on the union president's own description in his testimony seem to have very little in the way of experience that's materially different from that which the average assembly then gets. That assembly on this record meets four times a year. Three of those times for two hours or three hours and once for all day. The record shows that the attendance is very sparse if the union applied its own rule that would eject any assembly member who missed two consecutive meetings. The record shows that some two thirds of the assembly members would have been eliminated from the assembly. Yet all these assembly members are eligible to run while the shop delegates whom the union president described as being active in a day-to-day operation of business unit affairs are not eligible. We suggest that that just cannot need any test that they describe as requiring rationality.
Earl Warren: Do I understand that there is a difference in the requirements for appointment in election.
Harris Weinstein: Yes, Mr. Chief Justice. There is no restriction at all on appointment. Now, appointment they say means election by the assembly. But in practice, the union president testified that he couldn't remember anytime an assembly -- the assembly rejected any recommendation of the other bodies and I assume that goes to appointments of business agents as well. The record shows for example that the union ran a class in the early ‘60s with about a hundred union members attended. The union administration then selected about a dozen for further training and then at least several of them were appointed business agents. None of them at least the two appointments that we're going into in this record, neither of these people having satisfy the prior office holding requirement.
Earl Warren: And then they could run for office later.
Harris Weinstein: That's right.
Earl Warren: Based on that appointment.
Harris Weinstein: That's right. In fact, the record shows that one of these two people who is discussed, one of them was appointed before the 1962 election at least. He did not run in the 1962 election but he was then reappointed as business agent. He then run and was elected in the 1965 election. But we don't think that the case can be disposed of so readily because we think the legal standard that the respondent in the amicus suggests they're simply wrong but it doesn't reflect what the Congress had in mind in requiring only reasonable qualifications. The purpose as Congress has said repeatedly and this Court has said of Title IV is to assure democratic procedures in the government of unions. It's to assure that union officers periodically must go back to the membership for a mandate and that the membership had a reasonable opportunity to contest with the incumbents. And we suggest that any approach to this case has got to be bottomed on a recognition that the essential governing feature has got to be “what is the freedom of choice open to the union members who wish to oppose.” Is it reasonably possible for any opposition group within the union to mount an opposition slate and put the choice to the good sense and the good judgment of the union electorate during and after a campaign? In approaching these cases with this thesis, the Secretary has developed a variety of criteria in his administration that he has proposed to the courts as a foundation for decision of these cases. And the courts until the decision of the Second Circuit in this case have generally agreed that these are the pertinent condition, the things to be considered in determining reasonableness. First, because of the congressional emphasis of what is democratic and what is not and that this election should be democratic, the Secretary has advanced the idea that a principle reference must be made to those conditions that are opposed in the polity of country generally. In sense, what sorts of requirements are generally accepted in democratic elections as they're known here? Now, we would think that on this basis, it's doubtful that any prior office holding requirement can be upheld. It's just too foreign to the type of procedures that American democracy has developed. But we don't make the argument that such a per se rule should be adopted and we don't think that it's necessary for the disposition of this case. For example, there's a variety of other criteria that we have advanced and the courts have considered and under all of them, we think that the union requirement in this case has to be disapproved. As I indicated before in response to Justice Harlan, the requirement in this case disqualifies some 93% or 94% of the union membership from running for office. With this type of disqualification when of the 7% such a substantial number have not been active in the assembly or the general government since 1951 when another large group is taken up by the administration slate in this or any other election because incumbents are -- a large number of incumbents are generally re-nominated. How possibly can there be any assurance that a group within the union that wishes to oppose can find candidates who will be allowed to run? They simply cannot when the restriction is this substantial and we suggest that this too makes it unreasonable. Now, another factor which we advance is what the general practice in the labor community. The Secretary introduced in the District Court a substantial amount of evidence going to the practices of unions generally and there are several exhibits beginning in this record. I believe with Exhibit 69 at page 249 that analyzes unions in this country by factors that were thought to make them in some way comparable to local sets. For example, Exhibit 69 analyzes the 120 at large unions in the same business, the local unions and respondents owned international. And it show that only about 25% if them have this sort of requirement. And then when we go onto the other comparisons, the requirement becomes even less frequent. For example, Exhibit 70 analyzed international unions and this begins on page 258 of the record, international unions having a total membership of 20,000 to 40,000 people. And this group was chosen because the 20,000 to 40,000 range was somewhat comparable to the 27,000 members and respondents roles and not a single one of the unions in that category had any requirement of this nature. Then Exhibit 71 which begins on exhibit -- on page 260 analyzed the constitutions of the major national unions in this county. It analyzed those constitutions of 72 of these unions, I believe, to determine whether a private -- a prior office holding requirement was imposed on the locals within the union. The only such requirement that was found was in the International Ladies Garment Workers Union and that union offered an alternative to prior office holding which was of course sponsored by the union and union management that as far as we know from this record was open to all and everyone who took the course became eligible to run. But as this exhibit shows many locals with membership roles, comparable to these unions, larger than these unions had no such requirement, it just didn't any need for it. And the final comparison put in before the District Court which begins on page 260 -- I beg your pardon. It's the next class on page 266, analyzed national unions and found again with the exception of the Ladies Garment Workers, there was no requirement. I believe that I misspoke myself in describing Exhibit 71. One of the criteria for selection of large unions there were the receipts and these unions not only are large in membership but they are believed to be the locals in the country that have receipts in excess of $1 million, thus, making them in financial size and presumably a need for financial judgment comparable to this union. So that in total, the evidence showed quite overwhelmingly, we think, that this type of requirement is a very rare beast indeed within the labor movement itself, existing only within a few locals of this international and within the International Ladies Garment Workers Union which has the alternative and the only other thing comparable to this --
William J. Brennan, Jr.: What you say that alternative was attendance --
Harris Weinstein: Attendance at a training class. Now, I think there is rather interesting contrast because there was one training class held in this union in the early 60s but those who took it did not become eligible for -- to run for office unless they were selected by the incumbents to take further training and were then appointed by the assembly as on the recommendation of the economist of course as business agents. Whereas we understand the Garment Workers Union, you become eligible simply by showing up with the course and taking it. But the record is a bit sparse on what the garment workers do. Now lastly, we think that one consideration that has to come before the courts in a case like this is, what the potential that a qualification provides incumbents --
William J. Brennan, Jr.: May I ask before --
Harris Weinstein: Yes.
William J. Brennan, Jr.: -- you proceed, Mr. Weinstein. It is not the Secretary's position is it that experience, whatever may be the touchstone of it. It's per se an inadmissible as the reasonable qualification?
Harris Weinstein: Our position is that we would agree that experience in unions as in any public office is a very desirable quality but our position is I think that a prior office holding requirement is probably not the way of doing it. Now, we don't take that per se position in this case because there are so many other factors that we think demonstrate the unreason of this particular requirement in this union.
William J. Brennan, Jr.: Well understand it -- as I understand you, the Secretary proposes is in essence of what freedom of choice in the context of particular qualification do members have to mount opposition to an administration, is that right?
Harris Weinstein: Yes. But we would also point out, Justice Brennan, that we think there's a considerable cross-pollination intended between this provision and general concepts of democracy as practiced in governmental elections here and I must say that this is quite unusual and strange type of requirement for elective executive position.
William J. Brennan, Jr.: Yes. But what I'm trying to get to is within the Secretary's proposed standard would there be any room for a qualification based on experience?
Harris Weinstein: The Secretary has not yet, I think gone so far as to say that that would be impermissible or unallowable. I don't think that he believes that his experience in administering this act is yet so complete as to let him take a firm black or white position on that question. I think we all recognize that the usual means of securing experience or competency in elections as to trust the good sense of the electorate and certainly, if there's one thing that's clear from the legislative history in this case. It would seem to be that the purpose of Congress was to trust the good sense and the judgment of union members while making sure that they have the experience necessary to make an intelligent and informed judgment to hear from the knowledge and so forth.
Byron R. White: Well, that would lead to have conclude inevitably of it so that any experience -- first meets the flat experience of qualification would be accepted.
Harris Weinstein: Perhaps but there are many ways of doing it, Justice White. For example -- one of the examples that the other side points to here where they tried -- I imagine to impeach what we put in on other union's experience was a qualification of I believe one local -- of a building maintenance workers. Now, what they had was a requirement and this is I think on page 587 of the transcript which is unfortunately not printed in the printed record. Their requirement, as I understand it, posed two alternatives. One was three years membership within the union and the other was having been an officer or an employee of some other union. Now, here is a wrinkle on prior office holding that I don't think we're quite prepared to exclude at this time because --
Byron R. White: Well, I wouldn't blame you.
Harris Weinstein: So, as I say, we have quite consciously taken an open-ended position. I think while recognizing, perhaps the logic of it is ultimately that the Secretary will decide after a number of years and he has not found the prior office holding requirements.
Byron R. White: You said, you really don't -- you really don't mean to say that experience of managing this union is a relevant qualification.
Harris Weinstein: We -- I guess we're not prepared to reach the question on this case. We're prepared to say it that experience generally is nice to have in officials but we also say that a prior restraint on candidacy is not the procedure that is usually used to exclude the inexperienced.
Byron R. White: Well, I suppose a fortiori though you would say that the membership on the executive board as a prerequisite to election to one of the core officers would be bad.
Harris Weinstein: Would be bad did you say? We would on this record certainly.
Byron R. White: Well, I don't -- I can't think of any experience of qualification in running this union that you would accept.
Harris Weinstein: Nor can I, Justice White. I'm simply not to --
Byron R. White: Why don't we just say that you couldn't?
Harris Weinstein: I'm prepared to say that I can't think of any but I'm not prepared to deny the possibility that someone --
Byron R. White: If therefore, you must say that the Secretary's view is that experience in running this union is not relevant. The union is -- it's impermissible for the union to hunt for experience from these officers.
Harris Weinstein: It is impermissible for it to do it by this method (Voice Overlap) --
Byron R. White: I'm not suggesting you to deny the right to have for competence.
Harris Weinstein: Hmm?
Byron R. White: Try me, I am not suggesting you to deny the right to have for competence.
Harris Weinstein: But not by this procedure that excludes so many in this way and makes it so hard for any opposition to mount an opposition slate to contest for control of the union. Now --
Speaker: Now it was, there are similar positions in my understanding. What would they have to do as to (Inaudible) --
Harris Weinstein: The testimony of the -- the testimony of the union president is that it can be changed only by a vote of the assembly. Now, the amicus brief, I believe, says that it can be changed by a vote of the general membership but the record does not support that and simply according to this record which there can be changes only if the in group through the assembly that follows the recommendations of the incumbents desires -- decides to vote for a change. I would think though that even if the union majority could change the bylaw and that wouldn't be enough to say that. This statute I would think is highly concerned with the rights of the minority and no matter what 55% of the union might do to the qualifications that it should still be in the remaining 45% I think a very real right that they have a real possibility of mounting whatever opposition they want and putting their case to the membership --
William J. Brennan, Jr.: Even -- even if the changes now made increase the eligibles to some 17 -- 18,000 there are still --
Harris Weinstein: We would have serious doubts if it's reasonable--
William J. Brennan, Jr.: -- because there are still 10,000 who would not be eligible.
Harris Weinstein: Precisely, Justice Brennan.
Abe Fortas: Mr. Weinstein, I suppose that this is really a very narrow question on the merits of this bylaw. And the question is precisely, what is the meaning of the phrase appearing on page 40 of your brief. Every member in good standing shall be eligible to be a candidate and to hold office. Except on Section 504 into reasonable qualifications uniformly imposed.
Harris Weinstein: Yes, Justice Fortas.
Abe Fortas: The question is so the statute sets its standard in every member in good standing shall be eligible and then it says that it impose a reasonable qualification. The question is does reasonable qualifications really mean that you can eliminate some persons who are candidates in good standing on this basis and then now it comes down to --
Harris Weinstein: I think in terms of the statute, yes. But we do approach this case with a view that given the word reasonable, the first step is to determine what considerations are to be weighed in determining whether a particular qualification is reasonable and we have catalogued this. Perhaps the Court will not find it necessary to consider them all because we think that they all lead to remark a conclusion of unreasonableness in this case. I certainly agree with what you say as a statement of the issue in this record.
Abe Fortas: Well, ordinarily, if you read that as meaning qualification such as citizenship, length of membership in the union and that sort of thing and it might be a little odd to say that to be eligible to be a candidate and hold elective office, you have to have held elective office.
Harris Weinstein: We agree.
William J. Brennan, Jr.: Well, if your view Mr. Weinstein is that even with the changes, the ineligibility of 10,000 suggests the unreasonableness of the qualification.
Harris Weinstein: Yes.
William J. Brennan, Jr.: I think this must also mean then that a qualification based on length of membership has to fall, doesn't it?
Harris Weinstein: I think that would depend on what the length of membership is.
William J. Brennan, Jr.: That is in other words, one year or two years that might be different from the --
Harris Weinstein: Yes. In one year requirement in one union might be reasonable where in another union, it might exclude so many and perhaps it wouldn't --
William J. Brennan, Jr.: But you invoke practices of general application in public elections. Are there not qualifications for eligibility for office which depend on years of residence in the state or county or municipality?
Harris Weinstein: Yes. And I'm not prepared to say what percentage of people they exclude from running. I would guess that it's relatively small and I think that our approach to a case of that sort were set -- take a case that I would say as ambiguous of a two-year requirement. I believe that what the Secretary would do is look at this particular union and make a judgment. First, in examination to determine how many people are excluded? What percentage of the union does that represent? And then he would have to make a judgment calling on his own expertness and experience in terms of whether he considers that probable cause for reasonableness.
William J. Brennan, Jr.: Well, I suppose that have to be made then to perhaps every local, depending on the turnover rate of a particular membership, wouldn't it? I guess this too that the great many unions have a very high turnover rates.
Harris Weinstein: This union was described as having a high turnover rate of about 10% a year. Now, putting all the numbers together, the suggestion is that I think there's a large base that stays but perhaps 10% or so that keeps changing over each year and perhaps 70% to 80% doesn't turnover at all. I don't think it means that in five years, 50% turns over. But out answer to that is, I don't think we're prepared at this stage --
William J. Brennan, Jr.: But your answer on that issue wasn't here anyway.
Harris Weinstein: Well, of course but it would -- I think their mootness argument presents it tangentially.
William J. Brennan, Jr.: Yeah.
Harris Weinstein: Now, the last thing that I would just mention is another reason for disqualifying this requirement is the potential that it presents to the incumbents for staying in office. The District Court found here that it just wasn't possible to be elected to the assembly to even become eligible to run for the paid office except with the blessing of the incumbents. Whether this happened or not, it seems to us that once a requirement has that kind of potential and this one does because of the slowness with which people would become qualified for office, it simply cannot be called reasonable. Turning to the next question, the problem is one of determining effect on election. The statutory language is 402(c) at the bottom of page 42. And it says that before ordering a supervised election, the District Court must find upon a preponderance of the evidence after a trial upon the merits that a violation of Section 401 may have affected the outcome of the particular election. And the problem here I think is stated narrowly in terms of the statute is what does the phrase ‘may have affected' mean as a legal matter. This phrase is the product of a compromised in the Congress. It was not in the Bill in the Kennedy-Ervin bill as originally proposed, the statute read essentially as it does without may have. They're required of finding that the violation of Section 401 affected the outcome. The Senate inserted the phrase ‘may have’, the House is seated to it in conference and Senator Goldwater in presenting the compromise to the Florida Senate, commented that the purpose of this condition -- this language ‘may have’ was because and I quote that the difficulty of proving such an actuality that is an actuality of effect would be so great as to render the professed remedy practically worthless and we suggest that that has to be the keynote of interpretation and application of the provision in this case. We would suggest that the moment one person is disqualified from running for office by an unreasonable requirement. That may have affected the outcome. That is sufficient. I think it's a common knowledge that the outcome of an election as influenced by candidates who did not run is always an imponderable. The best a court can do is speculate. Perhaps it would have been different, perhaps it would have not. But it seems to us that that is sufficient to satisfy the statute and here where eight were disqualified by this requirement, where the result was no contest for the vice presidencies, a lesser contest for the general officers, a contest for only two of the business agent positions. It's even clearer if there was unnecessary possibility of effect. Other candidates would have expanded the campaign perhaps have different personalities, perhaps things would have turned out differently, perhaps they would have not but in our position, that is sufficient.
Abe Fortas: Mr. Weinstein, I beg your pardon. If we should remand this case with directions to hold a supervised election, does that mean that we would not have to rule on whether the three additional alleged violations were improperly explicit in consideration?
Harris Weinstein: That's correct, Justice Fortas because those would be resolved in the course of supervision. Our position on that point however is that essentially, there is no difference in thesis between this case and the Laborer's Union case decided earlier this term because we can't see what difference it makes, what complaint is made to the Secretary, the Secretary in protecting the public interest is empowered to investigate broadly and we assume is in the case with the labor board. He should be empowered to sue upon whatever he finds. And these are the reasons why we request for the decision below be reversed.
William J. Brennan, Jr.: Mister before you sit down Mr. Weinstein. Did I understand you to say that this union election on the amended bylaw is scheduled for three weeks?
Harris Weinstein: May 16th is the date.
William J. Brennan, Jr.: What have you to say if we should ultimately agree with the Secretary's decision? I gather that election then is nullity, is it?
Harris Weinstein: I would think so. It would be the same effect as the two cases already decided this term.
William J. Brennan, Jr.: Without regard to them. And I take it, there's been no -- the Secretary has in any court sought a restraint against the conduct to that election --
Harris Weinstein: And not at this moment. Perhaps he will but he has --
William J. Brennan, Jr.: He has not so far.
Harris Weinstein: Not as of this moment.
William J. Brennan, Jr.: And if he did, where would you have to go?
Harris Weinstein: I assume to the Southern District but possibly to this Court I think we would have to examine that question. Thanks so much.
Earl Warren: Mr. Cohn.
Sidney E. Cohn: Mr. Chief Justice and may it please the Court. We respectfully submit that the bylaw in question was entirely reasonable and that the circuit court was correct in its finding that the bylaw was reasonable. We further submit that if this Court should find that the bylaw itself was unreasonable, if the District Court was correct in its finding and in a cessation, that the outcome of the election would in no way have been affected. We further submit for the consideration of this Court that the rule laid down by this Court in Bottle Blowers and in the Laborer's case, in no way determine the issue of mootness here. There is one further point which I deal the time to Mr. Gold of the American Federation of Labor to discuss not as the issue of the three matters which were not considered in the Court. Now, Mr. Weinstein has very carefully and very ably stated to the Court some of the factual background that's rather complex and before I get to the discussion of law on this, I'd like to fill in some aspects of the situation existing in this union long prior to the institution of this case and long prior to the legislation passed. This is a very complex situation. We have problems that arise in the fact when you have a local membership of 26,000 people working for more than 200 different employers spread throughout the City of New York, embracing every type of hotel from such large hotels as the Waldorf-Astoria or the St. Regis down to a hotel having a hands. When you have a situation where you have certain crafts in great number such as the housekeeping department or the dining room department possibly overwhelming the small departments that have a handful of people like a telephone operator or an upholster. When you have a series of craft unions that have to integrate their work with other craft unions in protecting collective bargaining benefits, you'll have problems. Now, this union was founded almost 30 years ago, two months ago and from its inception, it was dedicated to the concept of this being a rank and file union and runners again rank and file union and the essence of democracy was part and parcel of its construction and part and parcel of its philosophy all the way through. It's a rather unique union. It's a union which according to the record has achieved for its members the highest standard of wages and working conditions in the United States. It is a union which has accumulated more than $2.5 million in its direct funds and a share in over $30 million in pension, welfare and medical funds. It is a union where the president of the union, leader of more than 26,000 men earns a salary of $225.00 a week and a maximum of expenses of $45.00 a week. It is a union which provides very liberal scholarship funds for the children of its members. It is a union which concerns itself with the protection of its members being defrauded by unscrupulous consumer practices. It actively involved in legislation and above all the games which has achieved over the 30-year period of its existence have without a single major strike in the industry because of the unique peace keeping machinery that it has evolved. Now, all of these facts, let it long ago to feel that it must take proper measures to ensure that the union members picks for itself the type of office who are qualified to guide and lead it. In 1941, the union adopted a rule that was a prior experience rule and incidentally, I must point out to the Court that we are not talking about prior office holding, we're talking about prior union experience. In 1941, which is three years after our union was charged, we have been a very large group of shop delegates and we had a Shop Delegates Council and the Shop Delegates Council basically consisted of the people who are most enthusiastic about union affairs and the proper conduct of the union. They were the backbone of -- around which the union organized its organizational job. And we then made it a condition precedent to holding membership or holding officership in the union that one should have demonstrated some interest in activity in the union by participating in the work of the Shop Delegates Council. In 1951, we found that the Shop Delegates Council method of procedure was unworthy and we amended our bylaws in 1951 so that we have an assembly which could conduct that day-to-day business of the union in place of a membership meeting. You must remember that there is no hall large enough, anywhere in New York City where you can have 26,000 people come to the union meeting. And if you could have a hall large enough to accommodate 26,000 people, you couldn't conduct union business in that kind of an atmosphere so that we in 1951 established the assembly as the working body to whom the offers were accountable and to whom we could look to union leadership. Now, this union has peculiar history. From 1938 the time when it was first chartered down to the present time, elections have been held by secret ballot with voting machines under impartial supervision and honest valid association with opportunity for all members to vote providing they were in good standing. And from 1938 down to the present time, the union administration has been reelected over and over and over again by votes ranging from seven to one to ten to one to sometimes where there has been no opposition. Our query is that overwhelming vote of confidence come as a result of a press of tactics, as a result of scheme and a device whereby one avoids the picture -- the clear intent of the congressional legislation or does that overwhelming vote come because the membership is cognizant to the fact that it has achieved such tremendous gains under the leadership.
William J. Brennan, Jr.: Well, I suppose Mr. Cohn, the issue for us is really where the Congress notwithstanding of this.
Sidney E. Cohn: Yes.
William J. Brennan, Jr.: It has now interposed to some restraints on the selection -- that's the real issue we have, isn't it?
Sidney E. Cohn: And may I quote Mr. Justice Brennan on that point. Mr. Justice Brennan said in 153, the legislative history shows that Congress weighed how best to legislate against revealed abuses in union elections without departing needlessly from its long standing policy against unnecessary governmental intrusion into internal union affairs.
William J. Brennan, Jr.: I don't think --
Sidney E. Cohn: Nobody could have a stated that more --
William J. Brennan, Jr.: I don't think that's a word of fact --
Sidney E. Cohn: No, I --
William J. Brennan, Jr.: Compose of the issue, isn't it?
Sidney E. Cohn: I wish that I've written it. I think it's stated as -- excuse me sir.
William J. Brennan, Jr.: I -- well, unless you finish that sort, I have one other question.
Sidney E. Cohn: Now the thought that I have is that the Congress enacted two-pronged legislation here. Congress balanced it. Congress was determined as it should have been determined to correct union abuses and it stated what those union abuses were and it categorized them and then on the other hand, it said we don't want to interfere in the internal affairs of trade union. We leave it to reasonable man to decide what is reasonable and it's when something is clearly unrelated to a lawful union objective that the courts and the Secretary should interfere. I'm sorry sir. May I ask to your question now?
William J. Brennan, Jr.: You have the question I wanted to ask was this. I know this is a local one also New York with some 11,183 members.
Sidney E. Cohn: They all work in dining room. That's the Waiters Union. You see, they don't have the same kind of problems we have and that's waiters -- there's enough hotel waiters so --
William J. Brennan, Jr.: It's just one particular craft calling whatever it is.
Sidney E. Cohn: The waiters union. It's called the Waiters Union.
William J. Brennan, Jr.: And is that -- how about the other one the Local 11, what is it?
Sidney E. Cohn: That's the Luncheonette Union. We deal -- deal only with the hotel workers and of the club workers.
William J. Brennan, Jr.: Well, I was interested of that apparently, the experience requirement according to Exhibit 69 is not the one that Local 1 follows is it?
Sidney E. Cohn: I don't know but let me -- I don't know whether it does or it does not.
William J. Brennan, Jr.: Well, at the --
Sidney E. Cohn: But let me --
William J. Brennan, Jr.: Just like Exhibit 69 in the case, it does not.
Sidney E. Cohn: Judge -- it does not follow it and my associate here tells me that but let me discuss this whole question of comparison since you've raised the point. The Government has asked the court to take into consideration the fact that other unions don't have that kind of requirement but that is a prior experience requirement. The record shows that there are 40,000 local unions in the United States that report to the Department of Labor. Out of that 40,000, 200 constitutions were analyzed for the purpose of this case which leave some 39,800 bylaw, sets of bylaws not examined. Further than that, reference is made to 76 international constitutions of which only one IOTW contains a prior office holding requirement. Our international union, the hotel international is listed as one of those organizations or internationals which doesn't have a prior office holding requirement. Yet, the record shows here that 25% or more of the local unions in our international union which does not have a prior office holding or a prior experience requirement do have a rule somewhat similar to ours. In other words, sensible and I say somewhat similar prior experience requirement. In other words, an analysis of the record shows how unreliable a guide, an analysis of 200 local bylaws may be or the international bylaws maybe. In other words, we can't rely on statistics alone. We have to take into consideration, what is the situation which confronts the union that's in the court today. Why did they do what they did? Was it because there was a sinister purpose by a group of people to perpetuate themselves in office? Did they have knowledge of the fact that Congress is going to pass legislation in 1959 and how could they circumvent legislation or was it related to a genuine desire of the rank and file members of the union to see that a union is large and is complex as this and as many problems they had, govern themselves properly.
Abe Fortas: Well, Mr. Cohn, I wonder if that's really the starting point of this Court. The statute says that every member in good standing shall be eligible to be a candidate and to hold office, does it not?
Sidney E. Cohn: With the further exception which you quoted before Justice Fortas.
Abe Fortas: And there's a parenthesis and it says subject to reasonable qualifications uniformly imposes but we start that we submit in statement form for your comment. We start that a congressional statement of policy or basic principle that every member shall be eligible to be a candidate and to hold office and then there is a provision for a reasonable qualifications, uniformly imposed. Now, it's at least arguable that the burden is very heavy on a union to show that anything that results in members in good standing not being eligible to be a candidate is within the intendment of this phrase, ‘reasonable qualification.’ With that burden is very heavy indeed and I've heard nothing on what you said and what I have read, subject of course to further thought of study. I've heard nothing that isn't applicable within a degree to every union and indeed every democratic organization success as I understand it and as I understand the congressional theory here is very doubtful that success provides a basis for self perpetuation.
Sidney E. Cohn: Justice Fortas, let me meet that burden which you've stated and I'm perfectly willing to meet it on the assumption that presides imposes a heavy burden on us. Yes, I think it does impose a heavy burden but we've met it. We have here a requirement which resulted in a pool of 1700 candidates who could very easily be nominated for office. There are 1700 old timers. 1700 people who take active part in the union.
Abe Fortas: How many new timers are there?
Sidney E. Cohn: 5%.
Abe Fortas: There are a lot of new timers, aren't they?
Sidney E. Cohn: Well, I'm going to go to that in just a moment but there are 1700 people who could run with four principle offices and 21 associated offices. Just remember, we're talking about 31 candidates per office in an entire union and if an opposition slate can't find 31 people to nominate out of 1700, either the union is doing something right or the opposition is doing something wrong but let me go a step further. If the Congress had wanted to set down a set of rules in a clear and unequivocal language that said that every member of the union shall be eligible to run for office. It would have said so.
Abe Fortas: Oh, no. That has to say reasonable qualification.
Sidney E. Cohn: Alright, then --
Abe Fortas: You have to say that you -- that a man can't join a union that after make it possible I should think for a union to say that you can't join the union today for example and run for office tomorrow. And if they have not included that phrase, reasonable qualifications, they would have merely done a flat injunction that would have prohibited even that or a --
Sidney E. Cohn: Well, I'm not --
Abe Fortas: -- or even -- go ahead.
Sidney E. Cohn: I'm sorry, sir. Let me apply to our own union. First, we are proud to be what is known as an open union. In other words, anybody can become a member of our union after 30 days in the industry. We don't have a close union. Secondly, we have a union that has peculiar membership. We have a great, many unskilled workers who were there for a very short period because they're constantly trying to use this as a stepping stone.
Hugo L. Black: Did you mind studying on what the employees you do take in?
Sidney E. Cohn: Yes. We take in all the dining room employees, all the kitchen employees, the housekeeping employees, the laundry employees, the club employees in every club in New York City such as -- even including telephone operators, upholsterers. In general, every employee in a hotel that comes within the dining crafts, the service crafts --
Hugo L. Black: Dishwashers?
Sidney E. Cohn: Dishwashers, yes. We take in the dishwashers, we take in the chefs, we take in the kitchen workers in general, the miscellaneous employees. It's --
Hugo L. Black: Are there any of this who are uneducated?
Sidney E. Cohn: Yes. Yes, many of them are uneducated. We have a large precaution of Negro and Puerto Rican membership. In this union, many of them have always been in the leadership of the union and incidentally Justice Black, if you lead me to a point that I should like to discuss, there is a provision on the chart which Mr. Weinstein has showed which provides that it's possible for an appointment of a Vice President and the question rises why should there be a possible appointment of a right Vice President. I think you raised the question Mr. Justice White. The reason for that is that we try to make sure that from the beginning of our organization down to the present time since we have a large number of women who are members of the union, generally in the housekeeping department that there would always be at least one woman in the leadership of the office -- of the union. Secondly, we have a large number of Negro workers and we try to make sure that we would always have at least one Negro among the leadership. Fortunately, in the 30 years that we've conducted elections, it's never been necessary for the assembly to exercise its right to appoint a vice president to represent, shall we say, either a minority group or a woman. They've always been elected in general. That's the reason for the reserve provision in the Constitution to make sure that every element in the union could be represented.
Hugo L. Black: Do you have any educational requirement for any office?
Sidney E. Cohn: We have no educational requirement but we have sir, fortunately, a great many people who are passing through the union and that they are working their way through college, a law school, a medical school that may get their jobs in the banquet department or as a waiter. We have a number of actresses who are quite -- who -- when they're unemployed, get jobs, working on the clubs or the hotels. So that we have a fairly literate group combined with the group of less educational background. It's a heterogeneous collection of people. We are little cosmos of our own. I think if you read the record, you will find that the union spokesman, dedicated and articulate and that their whole set of bylaws had been designed so as to get as close to an ideal system enforcing a representation as you can find.
Hugo L. Black: Do you need your office which require man to be a bookkeeper or --
Sidney E. Cohn: No, no.
Hugo L. Black: -- be with bookkeeping --
Sidney E. Cohn: No, although it --
Hugo L. Black: What?
Sidney E. Cohn: No, no Justice Black. Those people are all professionally hired. We --
Hugo L. Black: The Secretary is professionally hired?
Sidney E. Cohn: No. The Secretary is elected from the membership. This is traditional. The Secretary has always been --
Hugo L. Black: What are his duties?
Sidney E. Cohn: Oh, as the Secretary-Treasurer whose duties are to handle the funds of the union. The funds amount to several million dollars but he gets this guidance on that from certified public accountants, from an IBM machine. We had IBM machines installed 20 years ago.
Hugo L. Black: What are his qualifications? Do you have any special qualification?
Sidney E. Cohn: No experience in the union, no special qualification. Experience in union matters. There are no special qualifications for that. Just his special dedication to union matters. I don't think that there is any claim anywhere that secretaries or treasurers need have any special educational requirements. We're fortunate that we have very good ones but there is no real --
Hugo L. Black: Perhaps some of you would have agreed that many people who couldn't be a Secretary.
Sidney E. Cohn: It's true in as such, the membership to reject them or accept them.
Hugo L. Black: How do they get acquainted with one another?
Sidney E. Cohn: They get acquainted with one another because they live in the same community. We published the newspaper for the last 30 years. We have very frequent committee meetings and membership meetings and we try -- all our officers try and take advantage of the union fold to use a forum and that's where we introduce our various programs of participation in community activity. Somehow rather in the world in which we live, you get to know the qualifications of the people.
Hugo L. Black: What part of the world does your union include?
Sidney E. Cohn: The hotel world. It's the 26,000 people who work in hotels.
Hugo L. Black: All over New York City.
Sidney E. Cohn: All over New York City, Justice Black.
Hugo L. Black: Well, how could the individual members get acquainted with one another that way?
Sidney E. Cohn: Well --
Hugo L. Black: They would have to vote.
Sidney E. Cohn: It's -- it's difficult. It's the same problem as posed universally. We do have very frequent committee meetings at union headquarters. The business agents and the general officers visit the hotels frequently.
Hugo L. Black: They are the officers.
Sidney E. Cohn: They are the officers, yes.
Hugo L. Black: But I'm talking about the rank and file who then evokes the officers and get acquainted with.
Sidney E. Cohn: Well, let's take what happened in this particular case, they publish leaflets, they have headquarters, they solicit membership throughout the hotels. They exploit grievances if there are grievances to be exploited. I think it's a normal course of -- you just have to make your own value of judgment about the qualifications of the people whom you're interested in. No more than I -- than I could become acquainted with the people who are going to be candidates for President of the United States, of the U.S. Senate. I just have to read about them, use my own judgment and I do because I'm interested in the general situation. Union members are interested in the union situation somehow or rather they get to know the people who have leadership. It's a natural process. Excuse me sir. And this incidentally is one of the reasons why there should be some qualification so that --
Hugo L. Black: Well, that's what I was thinking.
Sidney E. Cohn: Yes. This is one of the reasons why we should have some qualifications. I'm sorry. I didn't understand the point of your question sir. Let me go on to what --
Byron R. White: But you've now dispensed with the -- I take it dispensed with the experience involved.
Sidney E. Cohn: Yes. Let me tell you why we have dispensed it. First, it was an experience of qualification but we dispense of it because when the Secretary call to our attention, this issue was challenged. We conducted a very exhaustive examination of our records to the first time since 1951 to see what the factual situation was. And we found that there was a pool of 1700 people. We paid for the experts that came in, we analyze the records, we cooperated with the Secretary and we did everything that we could because we wanted to know what's right and what's wrong and we said that 1700 for 31 offices are certainly reasonable but then the question came up, what's going to happen five years from now? What's going to happen 10 years from now? A lot of people will pass out of the union scene because of death, illness, retirement, attrition generally and we might be left with a situation that would be completely unreasonable and the question came and I'm very frank to state to the Court. Some people said that if we amend our bylaws now, it might be a confession of weakness. On the other hand, our union leadership said nonsense. We run this union for the benefit of the members. If we have a situation that should be correct for the future, let's correct it. So in December of 1966, we did what we've done many, many times in the past, and that is amend our bylaws so that it would be not only in consonance with the spirit of legislation and the spirit of good trade unionism but with the letter as well. And so we amended our bylaws in December of 1966 of the next election which is going to take place two weeks from now will be conducted under a situation where there will be a pool of 17,000 people eligible to be nominated for office. That is in addition to the old requirement which we still have which makes prior office -- prior experience desired.
William J. Brennan, Jr.: Incidentally, is there's going to be an opposition slate this time?
Sidney E. Cohn: There's going to be an opposition slate, they have nominated for our position. I have the newspaper here. They've operated four candidates for general office and they've nominated I think eight other candidates out of the 31 and the opposition slate will probably conduct the same kind of campaign that they conduct the last time. Let me advert to the 10,000 -- sorry sir.
Earl Warren: What constitutes the 10,000 who cannot be eligible?
Sidney E. Cohn: Those who have not been members of the union for five years. In other words, those are the only once who constitute the ineligibles. Now, let me --
Earl Warren: That's under the new --
Sidney E. Cohn: Under the new bylaws. Now, let me --
Earl Warren: That isn't true under the old one, the one we're --
Sidney E. Cohn: No. Under the old one -- under the one which the 1965 election was held, there were 1700 people and only 1700 people who satisfied the prior experience requirement. Under the new bylaws in addition to those people, there are now a total 17,000 who --
Abe Fortas: And in the old one, there was a two-year prior membership qualification, wasn't there?
Sidney E. Cohn: No. That is one year requirement for running for office.
Abe Fortas: One year?
Sidney E. Cohn: One year.
Abe Fortas: Have you now raised --
Sidney E. Cohn: Sorry. Two years. I'm sorry Justice Fortas, Mr. Lurie corrected me.
Abe Fortas: Two years. And have you now raised that up to five?
Sidney E. Cohn: No, no, no. No. We have raise to -- for holding general office for five years. But the membership and the assembly, anybody who has been in the union for one year is eligible to run for the assembly.
Abe Fortas: The fact of the matter is that before this time, to run for a general office, all you have to have was two years of membership in the union plus having been an officer.
Sidney E. Cohn: That's right. Not being an officer in the assembly.
Abe Fortas: So you have -- so you have raised it from two years to five years for the top officers.
Sidney E. Cohn: For the top officer -- no. Let me see if I can straighten that up.
Abe Fortas: Now, just address yourself to the number of years you have to have been a member of the union under the old bylaw and under the new.
Sidney E. Cohn: It was a continuous good standing for two years under the old bylaw.
Abe Fortas: What is it under the new one?
Sidney E. Cohn: Two years of continuous good standing but five years membership in the union. In other words, one may be a member of the union --
Abe Fortas: To be a member -- you could be elected on one of those top officers if you were -- have three years or in bad standing as a member of the union as well as two years in --
Sidney E. Cohn: If the two years of good standing were immediately proceed until the time when you're running for office.
Abe Fortas: So that's not a very impressive distinction here, is it Mr. Cohn?
Sidney E. Cohn: Well, I think impressive is almost as difficult to define as reasonable. May I just add to one question and this is about the 10,000 people who --
Earl Warren: But why do you make the distinction between good standing and bad standing? What constitutes that standing?
Sidney E. Cohn: Well, a man may be a member of a union and not pay his dues. That's the only thing that makes some bad standing. Anybody is in good standing if he pays his dues properly. Especially on the qualification. There are no reprisals here. There are no claims of reprisals of kicking people out and anything of that sort. It just doesn't exist.
Earl Warren: The only test of that standing is whether he pays his dues or not.
Sidney E. Cohn: Yes, that's all.
Earl Warren: That's all what he's going to do?
Sidney E. Cohn: Yes. And people generally pay their dues because there are substantial pension and medical plans so that we don't have very much of a problem on that. It's just theoritical --
Potter Stewart: I -- I perhaps misunderstood it. I thought that the -- as I read your so called after word in your brief that you added to the group eligible for office in the union, anybody who has been a member of the union four or five years.
Sidney E. Cohn: That's true.
Potter Stewart: And that you didn't change or increase the length of membership requirements of the original group at all.
Sidney E. Cohn: Now, that's true. I think you brought it accurately. And I -- I may not have answered it clearly but you've read it accurately sir.
William J. Brennan, Jr.: Well, could a union member for five or more years who has never paid his dues run for office now?
Sidney E. Cohn: No, of course not. May I adjust myself of the 10 -- of the nature of the 10,000 people. We do have a large turnover because people come into the industry in the unskilled job. That's one of the group that comes in and it would be wrong in our view to just make it possible for people who drift in and out of the industry in these unskilled jobs to be entrusted with the leadership of so complex a structure as ours. Secondly, we have in the union a number of people who come in as I've indicated on a very temporary basis and that is the young law student or the young medical student who is trying to earn a living while he's at school and he is going to drift out of the union and while we welcome their participation in union affairs when they're in the union, they're going to go out. Thirdly, we have a number of classes that come in where people want training in the union. They eventually expect to be hotel managers or restaurant operators, it's a great training ground so that they drift in or out for two or three years in order to get experience. We feel that it's reasonable in our situation under our new bylaws to require a minimum of five years and that's why there may be a group of people within that membership period of drifting in and out almost 10,000 people who are not eligible in our opinion to qualify for office but --
Hugo L. Black: Why do you think it is --
Sidney E. Cohn: Sorry sir.
Hugo L. Black: Why do you think that the five year membership is a good thing?
Sidney E. Cohn: Because it gives the feel of the union. First, it will take you through a couple of collective bargaining processes. It will give one a chance to show to his fellow members that he is interested in the work of the union. We have dozens and dozens of committees in which people served. We have educational programs in which people participate and we feel that somebody before he submits himself to the membership office, at least has to get the smell of the union.
Hugo L. Black: Now which office is required?
Sidney E. Cohn: Any. We're talking of the 31 general offices. I mean, we're talking of the --
Hugo L. Black: 31 general?
Sidney E. Cohn: That is for the president, the general organizers, the secretary-treasurer and the recording treasurer.
Hugo L. Black: That's all that's included.
Sidney E. Cohn: That's all that's included among the 31 offices. Now remember, membership in the assembly --
Hugo L. Black: That's all that have to have to meet the requirements?
Sidney E. Cohn: No. Plus the business agents, plus the business agents and the seven vice presidents. There are only 31 offices have to recruit. Now, anybody who have to have these requirements -- now anybody is eligible to run for the assembly if he has been in the union for one year. Now, there's been a lot of talk here about the fact that they can't be elected unless they are part of the administration caucus or the administration slate. Let me refer to that for a moment. We have a very successful record. The opposition hasn't been elected but that's not a sin. The opposition hasn't been elected because as Judge Wyatt found, they have no program to offer to the membership while the administration has a very successful problem to offer to the membership. About coming to the caucus, if I call Mr. Weinstein's argument logically, he would expect Mr. Kennedy would invite Mr. Humphrey to send delegates to Mr. Kennedy's caucus to plan out -- to plan how Mr. Kennedy was going to be elected for office or Mr. Goldwater would want to come to Mr. Johnson's caucus so that he could be represented at Mr. Johnson's caucus. It just doesn't make any sense. Now, the Secretary has been very fair in his presentations to the Court through the fact that he doesn't really know what he wants, that he hasn't had enough experience with this whole question of prior experience and prior office holding. I'd like to call to the Court's attention the fact that when Ambassador Goldberg was the Secretary, he had enough expertise and he had enough knowledge to issue a couple of interpretative bulletins which were just made available to us as a result to the Public Disclosure Act only recently. Let me tell you the two criteria that Ambassador Goldberg relied on in 1960 when he published two interpretive ruling. These are found in the LMRDA Interpretive Manual, Section 422.250 and Section 422.270. They're cited in our supplemental brief. This is what Justice Goldberg -- excuse me, Ambassador Goldberg said on August 25, 1960, “Participation in union affairs, qualifications reasonably designed to assure that candidates had participated in the affairs in the union and are sufficiently familiar with the industry in which the union operates would not be considered unreasonable and ordinary circumstances if uniformly opposed. In the absence of knowledge of any special circumstances which cast out upon the validity and reasonableness of any of the qualifications, they are not to be considered unreasonable in themselves.” Now, take our situation here --
Potter Stewart: Can you say what date that was?
Sidney E. Cohn: That's dated August 25, 1960. It's recorded in the LMRDA interpretive manual of U.S. Department of Labor.
Potter Stewart: Ambassador Goldberg -- I'm mixed up in my history was not the Secretary of Labor until 1961.
Sidney E. Cohn: August 25, 1960. Does he mention? I'm sorry. I apologize. I'll take Secretary Mitchell who was -- who had great expertise in this field and was appointed Secretary of Labor. With that, I see I've loss track of my history.
Earl Warren: We'll recess now. We'll recess now, Mr. Cohn.
Sidney E. Cohn: Thank you sir.
Earl Warren: Mr. Cohn, you may continue your argument.
Sidney E. Cohn: Thank you. Mr. Chief Justice, I would like in a very short time that I have left in me to get to the considerations of the question whether or not, the outcome of the election would have been affected if the rule were improper. I'd like to call the Court's attention to the decision of Justice Wyatt or Judge Wyatt on that point which is sighted at page 48 of our brief. He said, “Consideration has been given not merely to the effect of the bylaw on those disqualified but to its possible effect in discouraging others from coming forward as opposing candidates. Nonetheless, the heavy vote in favor of the administration candidates is convincing that the existence and enforcement of the bylaw could not have affected the outcome of the election. The evidence satisfies me that the primary reason for the heavy vote in favor of the administration was a lack of any real grievance or issue against the union management. The platform of the opposition membership party did not charge any abuses or misconduct or even any inefficiency. There was no attempt to state any specific complaints. There was no dramatic or important issue to route the membership against the incumbents. The appeal that the opposition was in substance that it could do the job better. Now, that also was concurred in by Judge Dimock sitting as a member of the Second Circuit.
Hugo L. Black: Mr. Cohn, it seems to me that argument that was against you. Why would the -- why was it necessary to amend the bylaw?
Sidney E. Cohn: Why it was it necessary?
Hugo L. Black: Yes.
Sidney E. Cohn: The bylaw had been established 15 years -- eight years before the legislation in question and had been historically in the bylaw for -- since the union was charged that the prior experience was -- but Judge Black, please forgive me. I just have a few moments to discuss the preponderance -- the statute itself but I don't want to address myself at this point to the reasonableness. Your Honor may feel that it's against us. I feel that it so strongly supports the reason why the election would not have been affected if the bylaw had been in there or not been in there and that is an important part of the statute as any other part of the statute. The statute reads that it's the Secretary's burden to establish by a preponderance of the evidence that the outcome would have been different if the bylaw hadn't been there.
William J. Brennan, Jr.: Well, now it's not would have been. Its may have been.
Sidney E. Cohn: May have been, yes.
William J. Brennan, Jr.: I think -- isn't that important Mr. Cohn what Judge Wyatt said as I believe in that opinion, his standard was could not have affected. That's not the statutory language, the statutory language is --
Sidney E. Cohn: May have affected, yes.
William J. Brennan, Jr.: Well, there is a difference.
Sidney E. Cohn: There is a -- well, there is a difference but there has to be a probability that might have been affected. Remember the fact to a situation here Mr. Justice Brennan. You have the four candidates including the two who had been disqualified for running for general office actually submit themselves to the vote of the membership because they were candidates for delegates to the international convention. They were defeated by votes of seven to one, so that we did have an election, the membership did express itself. Their statute calls upon a preponderance of the evidence. Now, they must establish by a preponderance of the evidence that it may have been -- that the outcome may have been affected. Now, what is a preponderance of the evidence? They produce no evidence of any kind. Certainly, the words “preponderance of the evidence must be given some statutory meeting.” Now, when that's taken into consideration with the fact that the legislation that this Court has set forth so many times in the various opinions was not designed to make the trade union unharmed of the government but it was designed to keep the union's free and independent and that the regulations were only those which dealt with abuses. I think that you cannot read out of the statute the clear words may have affected the outcome of the election and the burden of the Secretary can prove that by a preponderance of the evidence. The Secretary is asking this Court my opinion to give a construction to the statute which would completely nullify the words which the Congress was so careful to put into it. Now, I can't concede of any situation if we are to follow the Secretary's argument whereby automatically if a bylaw is found unreasonable, it doesn't then become necessary to declare the election void and to order a supervised election. I don't think that that's what Congress had in mind. The Congress wanted to prevent abuses. It did prevent abuses. Congress wanted to keep the unions free to regulate their own internal affairs. I think it did and when we consider the factors, one of the justices today indicated that it can't be the intention of the Secretary to go into 40,000 separate sets of bylaws or to compel a union as I would interpret that to risk an election which cost $25,000 or $30,000 in that case and then worry as to whether years later the Secretary may adopt the standard which is going to outlaw the election. I don't think that we could --
William J. Brennan, Jr.: Sorry Mr. Cohn. If you go through this scheduled election next two or three weeks and we should not agree with your position on either of these points, I gather that election's nullity is it?
Sidney E. Cohn: I think that there is a statutory scheme which would have to be followed. And may I address myself in just two or three minutes --
William J. Brennan, Jr.: Well, we did say that I've forgotten in which one of the other cases --
Sidney E. Cohn: And what are these --
William J. Brennan, Jr.: -- have we not, where there's been found a violation of the statute, those supervening union's supervised election can prevent the Secretary having the Secretary supervised election.
Sidney E. Cohn: Yes.
William J. Brennan, Jr.: And I gather that has to carry with, it doesn't it, that if the Secretary does go through it on election, any supervening election including this one. That doesn't follow?
Sidney E. Cohn: No. Because if -- the two decisions that you read -- that you quote are the decision in 153 and 125, and those two situations -- in those two cases, the situation is completely different because in 153, the supervening election was under the old bylaw so that the Court wouldn't tolerate a situation whereby trick and device, you could frustrate the clear intent of the legislation. In the 125, the election was conducted under -- it was the conduct of the election that was improper. The charge was there that the incumbent officers had at the voting list so that their favorites could vote and those who were not their favorites might be excluded. We don't have that kind of a situation here. We have an election which has taken place under a bylaw which the Circuit Court of Appeals has found to be reasonable and where we, ourselves, a year-and-a-half prior to the election, to the forthcoming election have amended the bylaw --
William J. Brennan, Jr.: Yes, but what if the language -- this is in Bottle Blowers that it's incorrect to read the provision circumscribing the time and basis of the Secretary's intervention is somehow conditioning his right to relief. Once that intervention has been properly invoked, substance construction would ignore the fact that Congress, although committed to minimal intervention was obviously, equally committed to making that intervention once warranted, effective in carrying out the entire --
Sidney E. Cohn: As long as it was warranted. But the question is whether it would be warranted --
William J. Brennan, Jr.: No, I'm hypothesizing that we were not to agree with your position either as to the bylaw or as to the issue of whether the violation of the bylaw affected the outcome of the election.
Sidney E. Cohn: Mr. Justice Brennan, the only answer I can give you is a complete -- I think the only honest answer I can give you is that the situation is different under which the two elections have taken place and I don't think --
William J. Brennan, Jr.: In other words, I think that question is foreclosed but anything we've already said with the last one.
Sidney E. Cohn: I don't think it is foreclosed. I think there is a distinction between Glass Blowers and 153 in this case.
William J. Brennan, Jr.: Well, certainly a distinction on the facts is quite relevant.
Sidney E. Cohn: Yes, and these cases have to be decided on the facts because the Secretary asserted this argument, we don't know what the general rule is we haven't laid down a general rule.
Abe Fortas: Well, let me see if I understand this. You're going to have an election in two weeks.
Sidney E. Cohn: Right.
Abe Fortas: Suppose thereafter we decide that the Secretary's request that a supervised election should be held is sent and we send the case back with appropriate instructions to have a supervised election. Now, do you have some doubt that the holding of that supervised election or our order in the holding of that supervised election would wipe out the results of the election that you're going to have in two weeks?
Sidney E. Cohn: Not if the Court so orders it. May I tell you this -- may I suggest this to you. The congressional --
Abe Fortas: How could we fail to order it if we ordered a supervised election?
Sidney E. Cohn: Well, because the question is whether it's necessary, we'd have to go back to the Court, I assume to the District Court to direct in terms under which the supervised elections could be held. Remember here that we are not talking about misconduct in the election or any of the specific abuses. We're only talking about the application of the rule. The supervised -- permit me Justice Fortas if I may. The supervised election requires that it would be held under the rules of the union as far as it's practical and in conformance with the bylaws. Now, where we have amended our bylaws and where I don't think that today, there has been any serious challenge, the way you have 17,000 people eligible to hold, to run for office of 31 people clearly under what bylaws will they be held? We respectfully submit that there is really nothing for the Secretary --
William J. Brennan, Jr.: Well, that's an argument to be addressed by the Secretary, isn't it?
Sidney E. Cohn: Yes.
William J. Brennan, Jr.: But I would suppose if you -- the Secretary's election, he approved that the conduct of his election under your new bylaw, that's one thing and if you didn't and you went ahead with your election under your new bylaw, I should think there's some difficulty with that in light to what we said in Glass Blowers.
Sidney E. Cohn: Well, I would suggest that we would -- should be entitled to our day in Court to determine whether or not the new bylaw is appropriate.
William J. Brennan, Jr.: Yes, but your day in Court can't come until after you've been through the procedure through the Secretary under the statute.
Sidney E. Cohn: Well, then may I say that I think the statutory scheme --
William J. Brennan, Jr.: Am I wrong about that? That's what the statutory scheme comes in place.
Sidney E. Cohn: Yes, but I also think that the Secretary's day in Court has to come after he has exhausted the procedure which the statute provides. It's a very difficult situation. I doubt I haven't answered it promptly. We all have problems with it. All that I can say is that I think that just playing common sense leads us to the conclusion of where the old election which we are talking about is going to terminate in two weeks and where the -- that is the term of office terminates in two weeks and where we have a new situation where the new election is not taking place under the same challenged bylaw but under a different set of bylaws that it wasn't the intention of Congress to make chaos out of order but it's rather --
Abe Fortas: Now, but it seems to me that you're making a very strong argument for a supervised election.
Sidney E. Cohn: Then I failed. I think that we are making a strong argument for the mootness in this particular situation where we have a situation where the old election would not have been set aside because it hasn't been shown by a preponderance of the evidence that a different bylaw may have affected the outcome of the election and where we have a situation where the new election will provide the members with about 17,000 people whom they may choose for their 31 offices. And again, I come back to the fact that we rely on our basic position that even the old bylaw had a legitimate purpose and was not a conspiratorial purpose.
Abe Fortas: Well, it's possible theoretically for a union to keep one election ahead of the courts, and I'm inclined to think that that may turn out to be theoretical.
Sidney E. Cohn: I think that the Court has definitely prohibited that situation. I think it will be very bad if it happen. And I think that the Court has made it very clear that that couldn't happen under Bottle Blowers and nobody would want to have it happen. I just say that that, in our opinion, doesn't preclude the situation of a union doing what it should do and that is meet the dynamic demands of its membership and change as the occasion warrants it. That's what a good union should do. Our amending process is very easy. I think that we anticipated, properly anticipated everything that a descent trade union ought to do to preserve the rights of its membership. It wasn't done --
Byron R. White: Mr. Cohn, wouldn't there be a difference between a supervised election under the new bylaw than an unsupervised election of the new bylaw?
Sidney E. Cohn: Frankly sir, I couldn't see it.
Byron R. White: What about the other intentions of the Secretary that no one ever reached in this case?
Sidney E. Cohn: Well, Mr. Gold is going to argue those and therefore I haven't done it except that I think they're really minimal when you get into it and look at the record as to what they wanted to prove. But Mr. Gold is going to argue that. I don't want to trespass on his time on that. I think my time has expired. Thank you very, very much.
Earl Warren: Mr. Gold.
Laurence Stephen Gold: Mr. Chief Justice and may it please the Court. While Mr. Cohn has gone very deeply into the reasonable rule aspect of the case here, he has very properly addressed himself to the specifics of the situation of this union. I would like to divide the few minutes that I have between the slightly broader consideration of that and then turn to the exhaustion of remedies question touched down by Mr. Weinstein. The AFLCIO supported the enactment of the present Title IV and also supported its precursor in the Kennedy-Ervin bill. It did so because as Mr. Cohn has noted, in the Glass Bottle Blowers case, this Court concluded that Title IV was a carefully limited piece of legislation which took proper account of the institutional interest of the unions, of membership responsibility and of the complex dynamics in this area. It did so moreover because Congress carried out that determination by utilizing existing union constitutions as a basic governing law in this area and by legislating interstitially within the framework they provide. Indeed, in following this principle, Congress went to the extent of deferring to union constitutions in the situation in which the claim to their legitimacy is at its weakest. For even when the Secretary runs a rerun election, he must do so, so far as it's lawful and practical in conformity with the constitution and bylaws of the labor organization. It did so in short because the Congress recognize and gave substance to the values of union autonomy and membership responsibility and because Congress did not strip union members of their right to evolve the constitutional system responsive to their need. We believe that it is this background which gives the answer part to a question raised by Mr. Justice Fortas as to whether the very structure of Section 401. He doesn't indicated that a union has a heavy burden upon it when it passes a rule in defense that is reasonable and the other major labor enactment of course is the National Labor Relations Act and in considering a proviso to Section 8(a)(3) which prohibits discrimination that permits union security agreements. This Court in Machinist Local versus Labor Board 362 U.S. stated, “It is common place but one to easily loss sight of that labor legislation traditionally entails the adjustment and compromise a competing interest which in the abstract from the purely partisan point of view may seem irreconcilable. The policy of the Act is embodied in the totality of that adjustment and not necessarily in any single demand which may have figured however weightily in it.” It's for this reason that we believe that the purpose of the reasonable qualification rule is to ensure that union members and their concern with the institutional interest of their union, do not place onerous burdens on member who wishes to run for office. We submit that the alternate inquiry should be whether it's fair to ask a member to undertake the test the rule sets out as a predicate for eligibility. So this reason that we believe that the rule here is proper which asked that a man maintain good standing for one year and then submit himself to the members in his district and seek their support as an assembly member. We don't believe that that is onerous or difficult. We believe that it is clearly directed toward a legitimate purpose. And we believe further that since the ultimate issue is fairness, since the ultimate issue is the individual member's right to take advantage of the opportunity to run for office that the percentage test which figures so heavily in the administration of this Act and which Mr. Weinstein stressed that points to the exclusion of the other criteria that the Secretary brought out, don't tell us anything about whether the rule is reasonable or not.
Byron R. White: Well Mr. Gold, has an independent ever won a -- in assembly man's position against the administration slate in this union?
Laurence Stephen Gold: I don't believe so. But that is -- it seems to us, that isn't because of the rule. The rule is neutral in that regard. It's because --
Byron R. White: I understand.
Laurence Stephen Gold: I -- to give an illustration of why believe that the percentage test is unsound that the union could pass a rule requiring members to attend four or six monthly meetings a year prior to the election in order to run for office. And it may work out that in a particular union because people aren't interested in running for office or for other reasons even though that is it seems to us to be the very essence of a reasonable rule, there would be a rather small percentage of people who were eligible and we don't believe that that possibly could have been the intent of Congress. Congress was quite specific where it wanted --
Byron R. White: But the effect of the rule is to restrict the candidates for office to those that the present administration chooses because you know that the practical experience is that administration slates win in assembly districts.
Laurence Stephen Gold: Well, but I think --
Byron R. White: And they were the only ones who are eligible to run through?
Laurence Stephen Gold: No. But it only takes one year of good standing to contest an assembly seat. The rule -- that rule is perfectly consistent with an assembly that's divided 60% for the administrative party and 40% for the other party. It happens that the opposition here hasn't been effective that is because there's an unfair rule as we pointed out in our brief for a hundred years, the democrats couldn't win the State House in Vermont. We don't believe that that's because there are unreasonable rules because that was a non-democratic --
Byron R. White: The people preferred it.
Laurence Stephen Gold: Right. And we think that the same thing is in effect here. Because it seems to us plain if anything can be gotten from the literal wording of the statute that it is that while Congress accepted the notion of one member withstanding one vote, it did not after the standard of one member in good standing of one candidate. And the percentage test leaves it in the Secretary's hands on the very unrefined standings to set aside rules because of their effect through hindsight even though the rule places a fair burden on someone who wishes to run for office. It doesn't take into a counter effect that not everyone may wish to run for office and indeed that the better the organization is run probably the fewer -- the number of people who would wish to run for office. We think therefore in practical terms the Secretary's argument here results in the proposition, that union democracy can only be achieved if unions are limited to eligibility rules which allow any member in good standing to run for office even though he has no experience and/or knowledge of union affairs even though he has demonstrated no prior interest in those affairs. This argument is explicitly grounded on a dichotomy between membership action and passing eligibility rules and membership action which takes the form of casting a ballot in a general election. The Secretary says as much on page 18 of this brief where he says that a union rule isn't the embodiment of the judgment of the members are only the election results with the embodiment. This dichotomy is a false one. It's foreign into the Congress' congressional conception of union democracy. The Congress quite -- clearly regarded --
Earl Warren: I think we'll have to get the rest from your brief --
Laurence Stephen Gold: Okay --
Earl Warren: -- Mr. Gold.
Laurence Stephen Gold: -- I apologize.
Earl Warren: Your time has expired. Mr. Weinstein.
Harris Weinstein: Mr. Chief Justice, if I may just make use of the few minutes remaining to make a few observations.
Earl Warren: I beg your pardon.
Harris Weinstein: If I may just make a few observations with the time remaining. First in reply to your question Justice White at the -- in the record, the District Court's opinion at page 297 makes very clear that no one in his view could be elected without the blessing of the Administration Party and not finding as amply supported and has not been upset.
Hugo L. Black: What is that finding you say? I couldn't --
Harris Weinstein: At the bottom of page 297, Mr. Justice Black, there is a paragraph beginning with the sentence, “In practice, it was not possible to be elected to the assembly except with the blessing of the administration party conferred by selection to run for the assembly on row A.”
Byron R. White: Do you think that's inconsistent with the free choice of the voters in each district perhaps referring the people put up by the administration over those who were running against it?
Harris Weinstein: This is one of the other points I made because it seems to me that the District Court looked at two factors that are really not permissible under this legislation. One is, is this a good union? Has it done a good job for its members? Should the union members be happy? Can we justify the results of the election on that basis? Perhaps, this is a fine administration. Perhaps it is as benevolent as they say it but it would seem to us that that is not the test under the statute. The test under the statute is whether a group that thinks it has not been well-handled or just things that can do a better job. Can such a group mount on the -- within the procedures allowed in opposition?
Byron R. White: Would you think the administration -- the union ought to be permitted to endorse the slate?
Harris Weinstein: Oh, yes. I would --
Byron R. White: Nothing worse seemed about it.
Harris Weinstein: That on itself, it would seem is not coercive but the way what the district --
Byron R. White: And therefore, doesn't necessarily affect an election.
Harris Weinstein: But what the district judge did in this case is analyze the history and the evidence and it was his conclusion which I don't think can fairly be disagreed with that over the span from 1951 to 1965, these rules worked to make it possible for the in group to maintain control, to make it highly difficult for an out group to get a leg off. Now --
Byron R. White: Is that necessarily pernicious?
Harris Weinstein: It is pernicious Mr. Justice White when the out group is unable to mount the campaign and put its test to the members. In our view --
Byron R. White: You mean they can't win. They haven't been able to win. They put all they want to the voters --
Harris Weinstein: There's never been a fair test.
Byron R. White: They never won an election.
Harris Weinstein: There's never been a fair test to that, Mr. Justice White when the -- I think when the record shows that those who had attempted to mount an opposition slate have been unable to do so because of this prior office holding requirement and we would suggest that if there's one thing that is clear from the legislative history in this case is that Congress did not want the Secretary and did not want the courts inquiring into whether into question such of this which I would say posed as whether a union member ought to be happy with what he was getting. Rather the Congress as we see it intended that this question be put to the membership and open elections with open opportunity to campaign with freedom for any dissident group to mount the campaign and put its case to the members and let the members decide whether they think a new group can do better and its that possibility that we think and we think the District Court found has been foreclosed by this rule.
Byron R. White: May I ask you another question.
Harris Weinstein: Yes, sir.
Byron R. White: What do you think may mean in the effect side, it probably or possibly or once in a hundred times or one side of every two times or what?
Harris Weinstein: I don't know --
Byron R. White: Do you think the district used the wrong standard?
Harris Weinstein: Yes, for this reason, Justice White. It seems to us that this is a provision where the best you can do is speculate on its effect. Now, the average is that the membership party was defeated by a margin of seven to one. The record shows for example though that there were contest for two positions of business agent, one of them lost by seven to one, the other one lost by a little over three to one. None of the contest that the membership party wanted to undertake for vice president ever occurred. The other contest, I think six other contests or five other contests of business agent never occurred. Now, in these five districts where there was no contest, we say that the margin would have been three to one was in one or seven to one because it was in another district or would it be three to two or perhaps the membership party might have won. Perhaps they might have won if they had run a vice presidency.
Byron R. White: Well you would just -- I gather you would just say then that anytime a rule excludes from a ballot some otherwise qualified candidate that it might have affected the election.
Harris Weinstein: Yes. And we would go further in that --
Byron R. White: Period.
Harris Weinstein: Yes.
Byron R. White: That's the end of it.
Harris Weinstein: But we go further because it is our position when it might have affected a candidate and you do not know who could have come forward. That too has an affect that is imponderable and just simply cannot be measured by a Court. And this --
Byron R. White: When you wouldn't -- you wouldn't -- you think the reasonably probably standard that the District Court applies and the Court of Appeals for the Second Circuit apparently applies is wrong.
Harris Weinstein: We think reasonably probable is wrong as applied to this record because it requires -- underlying any standard --
Byron R. White: Well, is it the right -- is it the right standard though?
Harris Weinstein: In general, if were to say reasonably possible. Yes, I --
William J. Brennan, Jr.: It's perfectly -- It's a little bit different.
Harris Weinstein: -- slight variation.
William J. Brennan, Jr.: That's very -- not very slight.
Harris Weinstein: I think that if were seeking a general session --
William J. Brennan, Jr.: Are you -- are you really saying, I wonder, that unless one can reach the conclusion that the following of the -- by hypothesis invalid bylaw, did not affect the election then you must conclude that it may have.
Harris Weinstein: Yes, Justice Brennan. And this -- I think in substance -- in our brief.
William J. Brennan, Jr.: How are you going -- is it any easy to know when something did not affect it and when it did under this thing?
Harris Weinstein: I would suggest let's say in the case where the winning margin is a thousand votes and the charge is that a hundred ballots were destroyed in that counting. That's the case where we should not prevail under this test. Now, it seems to us the present case isn't quite the other extreme. There will be perhaps harder ones that we would agree would be harder that fall in the middle but it seems to us when you exclude candidates, when we all know that the outcome of any election depends on exposure, on personality, on a number of troops willing to bring out -- take out the message of the opposition forces, no court can exclude the possibility, a reasonable possibility that the result might have been different. And it seems to me to hold on this record that there is no right to relief, simply rejects this change in language that was made in the Congress to insert these words ‘may have.’ It comes down to showing an outright effect and this is what we think and ask the Court not to do. Thank you.