Earl Warren: Number 28, Provident Tradesmens Bank and Trust Company, Administrator of the Estate John R.Lynch, etcetera, Petitioner versus George M.Patterson, Administrator of the Estate of Donald Cionci et al.
Norman Paul Harvey: May it please the Court.
Earl Warren: Mr. Harvey.
Norman Paul Harvey: Sir, in summary of what was said yesterday and in our brief. The suggested order of the minority of the Third Circuit would by the very order suggested contemplate additional litigation. It contemplates litigation by the party who was not a -- the person who not a party in order to resolve his right. It is quite possible that in asserting his rights, either in a federal court or in a state court a conclusion directly contrary to the conclusion reached in the instant case in the District Court could be reached.
Byron R. White: And what if it were?
Norman Paul Harvey: Then it would have one decision saying that there was no coverage for Cionci. You would have another decision saying it was coverage for Cionci. And these two decisions would be in conflict. The order of the Court doesn't say what it would do in that situation where the proposed order of the minority --
Byron R. White: Yes but what's the impact on Dutcher?
Norman Paul Harvey: The impact on Dutcher is that he may be completely lost with no coverage due to the fact of the decision in one of these courts.
Byron R. White: Can you spell that out?
Norman Paul Harvey: Yes sir. If Dutcher should prevail in a coverage case in Delaware County, under that, he would be in --
Byron R. White: But how was -- what do you mean prevail?
Norman Paul Harvey: That is if he should obtain a verdict in an action against the Lumbermens and Cionci.
Byron R. White: That there was coverage or that there wasn't?
Norman Paul Harvey: That there was no coverage for Cionci then, Dutcher would be entitled to the entire fund that he had provided by purchasing a policy. However, at the same time, there would be a finding in the District Court, Federal District Court in Philadelphia that Cionci was entitled --
Byron R. White: Yes, but that's --
Norman Paul Harvey: -- to the coverage of the policy.
Byron R. White: That's your client's problem, not Dutcher's. All that mean is that -- all that mean is that the insurance company pays out money under this federal judgment that he will have an issue here where coverage was found. And then if Dutcher would do -- isn't in this case, prevails against the insurance company in another suit, it may be the insurance company has -- will pay double payments but that's not -- that should -- that isn't Dutcher's problem. That's yours.
Norman Paul Harvey: I think also Your Honor --
Byron R. White: Well, isn't that true?
Norman Paul Harvey: I think it's true if you conclude that the carrier is going to have to suffer double liability, yes.
Byron R. White: Well, we're talking about whether Dutcher is an indispensable party. We're not talking about the insurance company.
Norman Paul Harvey: Oh, I think sir, even under Rule 19 as amended, consideration must be given to the question of whether or not somebody is going to suffer double liability because of the holding in the case where a party should -- a person should be a party and is not a party.
Byron R. White: Well, isn't that somebody who know the indispensable party?
Norman Paul Harvey: Not necessarily. I would -- in reading the rule, I didn't get that impression sir and in reading the articles --
Byron R. White: Of course the Court of Appeals didn't even get to analyzing the factors under Rule 19, did they?
Norman Paul Harvey: I don't think they did, I don't think the minority opinion --
Byron R. White: Well, it happened, the judgment stand?
Norman Paul Harvey: As far as the judgment standing, it isn't the position of the respondent here that the majority opinion necessarily has to prevail. If there is another way in this same action of bringing to a conclusion the coverage question in a decision that's binding on Dutcher, who is the name ensured --
Byron R. White: By the way, could you tell me, is there any -- has there been any suggestion in this litigation by anybody that Dutcher is bound by this suit in a sense that he and the insurance company's interest are the same or that they are in brevity and therefore res judicata would apply to Dutcher if we try to litigate this question?
Norman Paul Harvey: That has not been contended by anyone. The majority says he is not bound by it. The dissenting opinion says that Dutcher is not bound by it and Dutcher is not a party. So I don't think that the Court had any jurisdiction of him and I don't think it could be said that because in an action in which he was not a party, his insurance carrier lost a contract action that he is bound by that situation.
Byron R. White: Well, so you're really arguing that he is an indispensable party in this suit, mostly because the insurance company might pay, say, double liability and Dutcher prevails against -- to these other actions.
Norman Paul Harvey: I think it goes much further than that Your Honor and I think my time is running out.
Byron R. White: Oh, I'm sorry.
Norman Paul Harvey: I think that the overall importance of this case is not this one decision but the fact that the federal declaratory judgment act has been a great help in solving problems and in cutting down litigation. And in the insurance field of making it unnecessary to go through the extensive trial of tort action because frequently when a decision has arrived at on the coverage, then settlements are worked out. The federal declaratory judgment act is often available when no state act is available. If a --
Thurgood Marshall: Excuse me, one thing worries me, in the original declaratory judgment action, if Lumbermens had moved to join Dutcher as an indispensable party and Dutcher was joined as a party defendant, diversity is drawn and out goes the lawsuit, is that right?
Norman Paul Harvey: If he has joined as a defendant, yes sir.
Thurgood Marshall: But why didn't Lumbermens moved to join it as a defendant in the trial court?
Norman Paul Harvey: There wouldn't have been any diversity if he were made a defendant if he were in the case as a plaintiff.
Thurgood Marshall: Well, if you could've -- you could have avoided all this litigation by doing that, couldn't you?
Norman Paul Harvey: Well, we were in no way --
Thurgood Marshall: But what if they (Voice Overlap) --
Norman Paul Harvey: -- connected with the case then, sir.
Thurgood Marshall: But what if he is -- well, Lumbermens lost?
Norman Paul Harvey: Lumbermens lost?
Thurgood Marshall: Would it be fair that what Lumbermens was doing was doing on a sure way, if the judgment went against him, they raised indispensable party for it. If it's not with them, is it alright?
Norman Paul Harvey: No sir because we never did raise the point. The point was raised by the Court of Appeals sua sponte. We felt we are perfectly right on the Pennsylvania law and had every right to reverse the District Court. We did not raise the indispensable party. That was raised by the Court of Appeals and --
Abe Fortas: No, supposing Justice Marshall's questions to you, the only person here that may be hurt by the failure to join Dutcher as I understand it is Lumbermens, the insurer.
Norman Paul Harvey: That might be so except that Dutcher --
Abe Fortas: Oh, now just a moment, just a moment --
Norman Paul Harvey: I'm sorry sir.
Abe Fortas: If that is so, assume for the moment that that is so the fact of the matter is that Lumbermens have no time to move to make Dutcher a party. And my basic problem that I have with this case is why Court of Appeals' sua sponte injected itself here in the absence of a motion on your part. If anybody is hurt by this, it's Lumbermens. I don't see that Dutcher is hurt. Anybody is hurt by -- or if he is hurt, he could have come in. But nobody made a motion to join Dutcher on a belated stage in this case. The Court of Appeals raised this on its own motion and when you match that against the language of the Rule, there's a lot of difficulty with the -- reversing the decision of the District Court here on this ground.
Norman Paul Harvey: I don't know the rationale that was followed in not joining Dutcher. If we had been involved in the case at that stage, I doubt that I would have joined Dutcher because I don't think an insurance company having a fiduciary relationship to its insured has any right to bring its insured into litigation that will bind him. If other --
Abe Fortas: Well, I suppose that what you're --
Norman Paul Harvey: -- party would want to bind him --
Abe Fortas: -- your position right now is in effect that he should be joined with some of the -- fiduciary relationship here, it's just a belated assertion of a position that has a bearing on that.
Norman Paul Harvey: My position is not that he should be joined. My position is that if he joined as was suggested from the bench yesterday by the Court, then the Lumbermens has nothing to do with that and Dutcher will be represented in the action in the lower court. There is no controversy at this time between Dutcher, the name insured and his insurance carrier, the Lumbermens, no controversy exists there. Now I would like to say, if I may sir this final word that if any stamp of approval of this Court is placed on this limited sort of piecemeal handling of this coverage problem, without overstating it, it's going to have a nationwide effect, because throughout the country, these suits are started all the time to decide coverage problems. And if they can be started and the person that is important to a litigation as Dutcher can't be joined and it's going to be a piecemeal decision of the coverage question which will encourage more litigation of the same question, then the efficacy of the declaratory judgment action is going to be lost on a 50-state basis. I thank you, Your Honors.
Abe Fortas: Well may I ask you, if you don't mind, this is one question, I am -- a fairly question. I wonder if that is so indispensable party doctrine may be -- if it still exist, may be viewed one that has life and a momentum of its own. On the other hand it maybe viewed as one that has invoked only in the interests of some party to the litigation. And in that event, it's at least arguable and it's the medium, that party to invoke it at an appropriate stage, I mean at the trial stage and not the -- unless it's not available unless it is invoked at that time, I suggest that is a possible alternative to your last statement.
Norman Paul Harvey: But if Your Honor please, it seems to me, in reading the articles that probably prompted this new Rule 19 that they contemplate, and then to the litigation which is somewhat synonymous with the contemplation of declaratory judgment act that it should be final and decisive and not a piecemeal situation after the declaratory judgment action is over. And I suggest to you Your Honor that the answer is not to have people such as the Lumbermens who have no controversy with another person such as this named insured at its parallel to drag that person into litigation and force him to engage counsel by the action of the insurance carrier which is suppose to protect that name. I think it's the obligation of the person bringing this action to bring it properly. Another point sir that is stressed in all the cases --
Abe Fortas: My question is whether it's your obligation -- it was your obligation to have objected seasonably. That's the question that I'm raising. I agree with you that it is the obligation of the claimant to join the necessary parties. But the question is whether this particular objection in the circumstances can be -- can prevail in view of the fact that it was raised at the trial.
Norman Paul Harvey: But sir, I only can say, to -- with regards to that that Dutcher is an innocent party, he doesn't have anything to do with whether he became a party or not. And he's certainly going to be put because of litigation personally, if there is an order such as suggested by the minority of the Third Circuit. And as a matter of fact I'm not reading that into the minority opinion and minority opinion specifically contemplates Dutcher's starting further litigation.
Byron R. White: Well, could I ask you this, who calls Dutcher as the witness in this other's lawsuit where he did testify and it was found -- the jury found coverage, is that in the federal court or the state court?
Norman Paul Harvey: That was in the federal court, sir.
Byron R. White: In a companion suit in the federal court?
Norman Paul Harvey: It was tried at the same time.
Byron R. White: Yes. And he did litigate? He did testify?
Norman Paul Harvey: He did testify, sir.
Byron R. White: And did the insurance company called him?
Norman Paul Harvey: Yes, he was called by counsel in representing the carrier.
Byron R. White: And the carrier lost that lawsuit?
Norman Paul Harvey: That's correct Your Honor.
Byron R. White: Yes, thank you.
Earl Warren: Mr. Adler.
Avram G. Adler: May it please the Court. Perhaps I spoke too quickly in my first opportunity to address the jury and I did not give the antecedent history as clearly as I should have done. Counsel representing the Estate of Lynch brought a suit against the Estate of Cionci who was the driver and it's now admitted that he was the driver. In an investigation showed that Cionci had no assets whatsoever. These were all very serious and reasonable. The Estate of Lynch then brought a declaratory judgment action against Lumbermens to determine whether there would be coverage for Cionci so that this suit would not be a mere academic exercise. The Lumbermens then motioned to bring in all the other injured parties, Dutcher was never brought in, and the suit went forward on that basis and a jury found coverage as to -- by the record verdict and by an actual verdict on the evidence, a jury found coverage.
Earl Warren: Who made the motion you just spoke off?
Avram G. Adler: Lumebermens Mutual Insurance Company to bring in the other claimants, at no time even at the pre-trial, the day requested Dutcher be brought in as an indispensable party. There is no question that Dutcher would be a plaintiff in this case. They answer Mr. White because by Mr. Harvey's own admission, there is a per -- there is a potential conflict between Dutcher and the insurance company so that he would be a possible --
Byron R. White: Isn't there a provision in Rule 19 for making somebody into involuntary plaintiffs in a proper case?
Avram G. Adler: That could have been done had the issue been raised. It was not raised --
Byron R. White: Do you say that Dutcher's interest really -- he could be on either side of this case, I suppose?
Avram G. Adler: He could be either -- on either side and this is a question that troubled me a great deal.
Byron R. White: Tell me how he could be a plaintiff, would you?
Avram G. Adler: Well, as Mr. Harvey pointed out, he says that if Dutcher loses in the Delaware Country actions, he would then have a suit against Lumbermen which then indicates a potential conflict between Lumbermens and Dutcher and therefore he could be a made a plaintiff. And therefore, under no circumstances, just to cover the approach that Your Honor made yesterday. At best, the Court could have under 19 (a) merely sent the case back to include Dutcher as an involuntary plaintiff. The majority opinion for reasons which we do not understand seemed intended to establish a substantive complex and to work the thrust of the modern approach in Rule 19. But if I may just briefly sketch this -- the approaches that we -- that are to be taken, if the majority opinion approach is taken, then there will not be just a possible conflict as Mr. Harvey points out. But there will be three poss -- or four possible conflicts, because under Pennsylvania rules, each of these cases would be litigated and then each of these various claimants would then have to bring a separate garnishment action and you could get three separate conflicting approaches as to the coverage question, which would be a sheer nightmare. The declaratory judgment action in this case was the most economical way of determining the issue. Now, under 19 (a), if Your Honors were to send it back under 19 (a) to make Ducther an involuntary plaintiff, then being the law of the case that the Pennsylvania Dead Man's Rule applies. And by sending it back under 19 (a), the Court recognizes the interest of Dutcher and it has been argued here as to the interest of Dutcher by counsel for the insurance company, then it means the various estates would prevail because under the Pennsylvania presumption, Dutcher could not testify and again they would get their directive verdict. And the only person who could suffer would be the live plaintiff who was severely injured and he might get a conflicting result. And Lumbermens gets an opportunity to relitigate that issue and submit that again toa jury which I humbly submit they do not deserve. They've had their day in court. Under no circumstances can Dutcher suffer. Now, it has been argued that Dutcher may be found a defendant in the Delaware County cases and then he can sue the insurance company. But as Your Honors pointed out, only the insurance company would suffer thereby. But even under those circumstances, under the opinion suggested -- under the order suggested by Judge Freedman in his dissenting opinion, the judgment here would await the resolution of those Delaware County cases. If Dutcher is found not guilty in this action, and there's a good chance of that because all he did was hand the keys to these men and these men took the car away and Cionci was driving at 90 miles an hour and crossed the median strip, the likelihood that Dutcher would be found guilty as a defendant is highly unlikely. And if he is found absolved in those Delaware County cases, then there is no conflict at all. And Lumbermens pays the -- judgment that been found in these cases. And it is significant as I pointed out yesterday that despite the fact that Lumbermens represents Dutcher in those cases, those cases have stayed on the books for eight years even though Delaware County is a short docket county and they've done nothing to resolve it. But taking Judge Freedman's opinion one step further, we as the counsel for the claimants and the counsel for all claimants are in this Court today, we are willing to accept a conditional order which says that we will limit our claims against all the defendants including Dutcher to the $100,000 policy. So that by affirming the order of the lower court and making it conditional, then Dutcher has no danger at all and in fact he hasn't any, and Lumbermens has no danger of paying out more than their contractual limit. And this can be done under 19 (b), the whole thrust, and that's the importance of this case. Ninth -- New Rule 19 set up various means by which this whole concept of indispensable party can be put aside for pragmatic considerations. And the rule makers kept using that word pragmatic consideration. It is not at all unknown for a court to so do, to put a condition on the affirmance of an order. And we would accept such a condition. And under that posture, and we set this in our brief, Lumbermens has not met that challenge. They have not answered this premise as I advanced yesterday and as I advanced now, the reason for that is that Lumbermens wants to relitigate this thing. They want a second day in Court. And I say to Your Honors, this case has been on the books for nine years and it was no fault to the plaintiffs that it was on the books for nine years. The Court of Appeals sat on this case for almost two years for reasons which we do not understand and then ordered an argument in bond. This case was ordered on the trial list within five months after it was first filed, so that we have not delayed, but it has been in courts for a long time. This Court has within its power, the opportunity to terminate this litigation by making such a conditional order and all counsel have authorized me to say that they would accept such a condition, that all the claims of all the plaintiffs will be limited to the insurance coverage of a $100,000. The issue has been litigated under -- the importance of this case is that the Rule 19 gives the opportunity to the Courts to use these pragmatic considerations to be practical as opposed to the impractical. And this is the first important case under Rule 19, and this case could be a guide stone to the lower courts in getting away from this rigid approach to the indispensable party context.
Byron R. White: But wouldn't that --
Avram G. Adler: Thank you.
Byron R. White: -- even if it -- even if there's no indispensable party here under 19, and you suggest we apply 19, even if this party, if Dutcher is indispensable, you'd say that incorporates 19 (a) don't you in terms of what would might be called necessary party rather than an indispensable party that it is (Voice Overlap) --
Avram G. Adler: That --
Byron R. White: -- and if it's feasible to join him and there's reason enough to join him, he ought to be joined.
Avram G. Adler: That is correct Your Honor and 19 (a) would prevail. However, if there were no means by which this case can be terminated now, if we go back under 19 (a), there is a chance of injustice to Harris. However this Court by a conditional order, and 19 (b) does give that opportunity, could say we affirm this judgment under conditions that the plaintiffs agree or signed a certificate or a motion that they will limit their claims to all the defendants $200,000 and that terminates the litigation and either Dutcher nor the defendant can be hurt thereby. They've had their day in Court.
Byron R. White: Would you make (Inaudible) the Court of Appeals?
Avram G. Adler: No sir, I did not because this was raised sua sponte at the first argument and at the second argument we argue that the question that the Dutcher is being an indispensable party. I did make it however Your Honors in my brief in this case, perhaps I should have made it in the Court of Appeals --
Byron R. White: If you did represent one -- who do you represent?
Avram G. Adler: I represent the --
Byron R. White: You don't represent all of -- you don't represent all the injured people or all that was injured?
Avram G. Adler: I represent the Estate of Lynch and counsel --
Byron R. White: Yes, but that's all?
Avram G. Adler: I -- and counsel for the other two parties. The Estate of Smith and Harris is in Court and is present and he joins with me in that offer to the Court. And I have so stated it in my brief.
Byron R. White: Mr. Harris who is compelled to believe --
Avram G. Adler: Mr. Nelson who is counsel for the other two claimants joined with me in that. We seek to terminate this litigation and we submit that this is an opportunity under the practical aspects of Rule 19 to solve it. Thank you Your Honors.


Warren E. Burger: We'll hear arguments first this morning in 75-657, The United Steelworkers against Usery, the Secretary of Labor. Mr. Frankel you may proceed whenever you are ready.
Carl B. Frankel: Mr. Chief Justice and may it please the Court. Beginning in 1964 and at each of he biannual convention since then, the membership of the United Steelworkers of America has voted to adopt in its present form a meeting attendance requirement, applicable by constitution to all of the 5200 Local Unions which comprise the Steelworkers International. Under that rule to be eligible for a Local Union office in any of the 5200 Local Unions, a member must have attended one half of the regular monthly meetings in the three-year period preceding the election, the three-year period being the term, a prior term of office unless his work or Union activities prevent attendance. This case arises under the Section 401 (e) of the Labor-Management Reporting and Disclosure Act, 29 U.S.C. Section 481 (e) which provide for the right of the member to run for Local Union office and provides that that right to subject to reasonable qualifications uniformly imposed. This case began when one of two defeated candidates for president of Local 3489 and its 1970 election of officers challenged the validity of the meeting attendance requirement first internally within the Union and then in the complaint filed with the Secretary of Labor. The Secretary within the time awarded by statute then filed this law suit, attacking the meeting attendance rule as applied in the 1970 election of Local 3486. The District Court following the lead of the Sixth Circuit and four other District Courts, which all of whom had passed on the validity of the Steelworkers meeting attendance rule, held that our rule was indeed a reasonable qualification under the Act. The Secretary appealed to the Seventh Circuit. The Seventh Circuit departing from this line of authority, concluded on the contrary that the rule was unreasonable and the conflict between the Seventh Circuit and the Sixth Circuit is what brings this case to this Court. Well Your Honors, actually the issue in this case is a very, very narrow one, much narrower than I had initially thought. Upon reading briefs, one gets to appreciate just how narrow it is. I want to emphasize out by starting with where we and the Secretary of Labor agree. The Secretary of Labor and the Steelworkers agree even under the Secretary's most recent regulation that it is reasonable under the Statute for Unions to have meeting attendance rules, point number one where we agree. The second point to which we agree is that such rules serve valid Union purposes and now I am quoting the Secretary, namely to ensure that candidates have demonstrated interest in and familiarity with the affairs of the organization.
Potter Stewart: The quote you are quoting the Secretary and when he is -- and where did he say that?
Carl B. Frankel: It's in the regulation and in the brief. It's in the Secretary's current regulation.
Potter Stewart: Current regulation and it's also in the brief?
Carl B. Frankel: Yes, at page 15 of the Secretary's brief where he paraphrases the regulation.
William H. Rehnquist: When you say regulation, do you mean it is the part of the interpretive bulletin?
Carl B. Frankel: While he issues an interpretive regulation, it's published in the CFR. Prior to that there was a manual which was distributed to local Unions where they could follow what the Secretary's interpretations were.
William H. Rehnquist: Is the Secretary give an authority by Congress to issue regulations the way the SEC have enforced the law or are these just interpretation?
Carl B. Frankel: They are interpretations, Your Honor.
Warren E. Burger: What other sanctions, if any, are there for non-attendance of meetings?
Carl B. Frankel: There are no sanctions. All of that non-attendance means is that individual -- that the member would not be eligible to run for Local Union office, if he didn't attend half of the meetings that he -- or if his work precluded his attendance he would not, there would be no sanctions of course and he would still be eligible.
Harry A. Blackmun: Mr. Frankel, I find some indecision or difference in the brief in records. How often did this Local have it meetings, it's regular meetings, every month?
Carl B. Frankel: Every month, Your Honor. But there were two meetings so that it was a split meeting, which means of -- there are three shifts at this plant, so that meant that anybody could attend the meeting. There was one which was held as I recall on Wednesday afternoon and the next was on the Thursday morning, so that everybody could attend.
William H. Rehnquist: What's, what that says?
Carl B. Frankel: But it was one meeting, it's considered one meeting.
William H. Rehnquist: Well, but was the same thing be duplicated on Thursday morning as went on Wednesday --
Carl B. Frankel: Yes, the same business would occur, would arise and what they frequently do is cumulate the votes on any issue on which a vote has to be taken.
William H. Rehnquist: Well, I take the people that came Thursday morning wouldn't get the benefit of the discussion in that area that took place Wednesday afternoon.
Carl B. Frankel: Oh they might not, that is correct. But the reason for this split meeting is so that everybody can attend the meeting.
Harry A. Blackmun: You had some excuses here, didn't you, it --
Carl B. Frankel: Work and meeting and the Union actively.
Harry A. Blackmun: How many people would have qualified by virtue of the excuses?
Carl B. Frankel: There is no way of knowing, Your Honor. No one made that check. The only way of telling work excuses by looking at all of the employment records which are in the possession of the employer. I think may be I ought to explain the way the Steelworkers operate and with respect to the work excuse, we have no reason to check work excuse unless the members are nominated. If the member is nominated and falls short of the required number of meetings then and only then when we will check to see if he had sufficient work excuse to qualify for office.
Harry A. Blackmun: Well can you do that nine months ago? I suppose you have annual elections, don't you?
Carl B. Frankel: Every three years.
Harry A. Blackmun: Every three years, so that you have to go back 36 months to shore up your excuses?
Carl B. Frankel: To determine whether or not the member worked at the time there was a meeting, yes.
William J. Brennan, Jr.: Well I gather the, as the meeting roll shows by name who attended?
Carl B. Frankel: That is correct.
William J. Brennan, Jr.: And so if he is a nominee and you find his name on the meeting roll only 18 times out --
Carl B. Frankel: There is no reason to check.
William J. Brennan, Jr.: That is right. If you find however it's only 12 times?
Carl B. Frankel: Then there is a reason to check.
William J. Brennan, Jr.: Then you have to find out the days that he was absent why, is that it?
Carl B. Frankel: Well when we have to find out whether he worked on the day on which there was --
William J. Brennan, Jr.: Well it's something else I gather. You said he might have been on Union?
Carl B. Frankel: Oh, Union that's correct.
William J. Brennan, Jr.: He might for example he might have been member of grievance committee. On a meeting on the grievance with an employer might have coincided with a Union meeting
Carl B. Frankel: That 's correct.
William J. Brennan, Jr.: And that would be an adequate excuse?
Carl B. Frankel: Yes sir.
William J. Brennan, Jr.: That is a kind of inquiry you have to make, if he falls short?
Carl B. Frankel: That is correct.
Harry A. Blackmun: Who has to bear that proof, the member?
Carl B. Frankel: No, Your Honor, the tellers would do that. A member could cooperate by saying, well, I think I worked on such and such day, but it would be the duty of the election tellers to make a check of those members who were -- who did not -- who are nominated did not meet the meeting attendance requirement by virtue of meetings alone then there would have a finite number, it's usually a small number.
William J. Brennan, Jr.: But I do not quite understand, if he were -- if his excuse was that he was working, I thought you said there was a split meeting. So that any worker would be able to attend one of the other sessions of the meeting?
Carl B. Frankel: Well, Your Honor, their over time and indeed in this particular case there was one member who qualified by virtue of a combination and he had an additional, according to the Secretary's investigation, he had additional nine credits over 16 meetings which he had attended. Now the problem is that the Secretary did not look for anyone, his investigator did not look to see where anybody else would have met it, knowing that nine, that this one member received name and credits and there were three members, he was provided a list by Union. Union gave a Secretary a list and said here is all the people who are eligible by virtue of the meeting attendance and here are three people who had between 15 and 18 meetings and it was for those three people that the Secretary checked the employment work records to see whether or not any of those of three would qualify by the virtue of the excuses. He found that one did and the testimonial was he had nine conflicts, but he didn't check through anybody else. Now, if one man had nine conflicts, it's possible that people who had as many as nine meetings attended, other people may also qualify. That's why I say, we don't really know how many members in this Local were eligible.
Warren E. Burger: Who appoints the tellers?
Carl B. Frankel: The tellers are either elected or they are appointed subject to ratification by the membership.
Warren E. Burger: At a regular meeting?
Carl B. Frankel: At a regular meeting.
Warren E. Burger: Is it a stated meeting in which the purpose of the meeting is announced in advance?
Carl B. Frankel: Usually, it's not the nomination meeting, but I don't recall a constitutional provision that says, when it had to be done. I know in practice it's usually done at the nomination meeting for which there is a notice.
William J. Brennan, Jr.: And how long in advance of the elections is the nomination meeting?
Carl B. Frankel: Usually a month or it could be less, though it varies in 5200 locals you have, --
William J. Brennan, Jr.: Each has it's own autonomy in that respect?
Carl B. Frankel: Yes.
William J. Brennan, Jr.: Because between the data of nomination of the election it's a very short period. How do you get all this investigating done as to Nominees as to whom there is any question?
Carl B. Frankel: Well, Your Honor because usually there are only a few people as to whom there is a question and it doesn't impose that much of a burden. By the way I would like to contrast that with what would happen under the Secretary's approach which is, you have to determine after it's all said and done, how many people were eligible to find out whether you are going to apply the rule. Well, if that's what you are going to do, then we have locals from a 1000 to 20,000 members, where there are rotating shifts, steady night shifts, we would have to engage in an administrative nightmare to send that Local Union people, camp them out in the employers employment records department, if they'll let us and determine how many people are eligible so that we can decide whether or not the rule is valid, given the test that the Secretary is urging before this Court.
Warren E. Burger: By what process could the eligibility be made more stringent that is moving from half of the meetings to three quarters of the meetings?
Carl B. Frankel: Some unions have done that and we would not, it is our position that such a rule would be valid because it imposes two heavy a burden on the member.
Warren E. Burger: What about 60%?
Carl B. Frankel: I don't think 60 -- I don't think we should require more than half, Your Honor.
Warren E. Burger: Well, what’s the basis, how do you arrive at these --
Carl B. Frankel: Well, it's difficult to do, I agree, but I think from the standpoint of our rule that to ask a member to spend an hour or 45 minutes, or an hour-and-a-half or two hours every other month is not too difficult a burden and that adds up to roughly 32 hours in a three-year period.
Warren E. Burger: How many people in this Local had qualified?
Carl B. Frankel: By virtue of meeting attendants alone, 22.
Warren E. Burger: Out of how many?
Carl B. Frankel: About 660.
Warren E. Burger: So apparently an enormous proportion of the membership do find it either difficult or for some other reason do not attend the meeting?
Carl B. Frankel: I think, it's for some other reason other than for being difficult, Your Honor, I don't think --
Warren E. Burger: Because the meetings are so dull?
Carl B. Frankel: Or because they don't have the interest in attending. For example, Your Honor, I would not say that it was difficult in United States for citizen to vote, but in the last election only 53% voted and --
Warren E. Burger: Okay, this Union isn't doing nearly as well as the voters of this country, is it?
Carl B. Frankel: No. That's correct, Your Honor, but my point is that I don't think you can measure the difficulty of the requirement by how many choose to fulfill it.
Warren E. Burger: If the eligibility were increased that is to 60 or two-thirds or three-fourths, what is the process by which a Local Union would make that change?
Carl B. Frankel: A Local Union could not make that change in the Steelworkers, Your Honor.
Warren E. Burger: Then how would it be made --
Carl B. Frankel: It will have to be made at convention, at the Steelworkers' convention which imposes these requirements nationwide for all Steelworker Locals and from which Steelworker Locals are not, cannot deviate. I think, that by the way Your Honor, I think it should have some fairness.
Warren E. Burger: At these national conventions, you have the leadership of the Union's --
Carl B. Frankel: In some instances, yes Your Honor. In other instances the delegates are elected as anybody else and it’s a --
Warren E. Burger: The non-attenders, the people with poor attendance records aren't likely to show up at the National convention, are they?
Carl B. Frankel: I would say having attended five or four of them that the dissidents do attend meetings, do get elected to become delegate --
Warren E. Burger: Well, may they be elected delegates, if they don't attend, if they don't meet this attendance requirement?
Carl B. Frankel: Yes, not this attendance requirement. There is another one.
Warren E. Burger: And what is the other one?
Carl B. Frankel: As I recall, it's half of the year. I don't recall exactly but there is an attendance requirement.
Warren E. Burger: The matter of all that is essentially, the establishment is in control of a National Convention, using the word establishment in quotation marks, of course.
Carl B. Frankel: Your honor, my experience is that, that is not true. I think that the steel --
Warren E. Burger: Well, how could these 660 who didn't attend or the non-attenders of the 660, get to a national convention?
Carl B. Frankel: Well the non-attenders --
Warren E. Burger: They aren't eligible?
Carl B. Frankel: -- would not be eligible. That's correct from within their own Local Union, that's correct, but that's only -- it's a much smaller, it is a smaller term, but there is a meeting as I say, I believe --
Warren E. Burger: Well, in this Local, there would be, how many 26 --
Carl B. Frankel: There is no way to know because nobody did a check for a year.
Warren E. Burger: Well, so as of the time you gave me the figure of 22 numbers out of 660?
Carl B. Frankel: That was on a three-year basis and it didn't include employees or members who were eligible by virtue of combination. I don't know how many of those members would be eligible. There maybe many more, there is no way of knowing. So I am saying, as there were 22 qualified by virtue of meeting attendants alone, but you can also qualify by a combination of meeting attendants and work excuse and the same thing would be true for the delegates.
William J. Brennan, Jr.: Incidentally are there many? Are there internationals that have this attendance requirement, the eligibility for?
Carl B. Frankel: There are 12 international unions representing approximately 25% of the membership, of trade-union membership which have meeting attendance rules. Now to use the approach of the Secretary --
William J. Brennan, Jr.: But that's suggested 75%.
Carl B. Frankel: It does not.
William J. Brennan, Jr.: -- of organized labor, do not?
Carl B. Frankel: No it doesn't suggest that for this reason, Your Honor. I was giving you a figure which represents those internationals which have constitutions which prescribe a meeting attendance rule, but there are -- the constitutions of other Unions permit Local Unions to adapt meeting attendance rules and again there is no way of knowing how many of them do.
William J. Brennan, Jr.: Any, have a rule, the kind of part of the steelworkers?
Carl B. Frankel: A three-year rule? I believe there is one other union that has three-year rule.
Harry A. Blackmun: So that means the Steelworkers in the other union are farthest out?
Carl B. Frankel: Well, no Your Honor. I wouldn't put at that way, I am sorry because if you take the approach as Secretary used which is that you measure the rule, the validity of the rule, by how many are eligible, it doesn't matter whether it's one, two or three units, but we are in the same boat as all other unions. If that's the test and that's the only test he has suggested --
Harry A. Blackmun: Well, let me emphasis the other fact. The 50% rule plus the three-years is the most stringent --
Carl B. Frankel: Well, there was a union that had a 70% --
Harry A. Blackmun: -- because somebody has to be up in front.
Carl B. Frankel: We are using the armed bargaining. So I suppose, we could --
Harry A. Blackmun: Why don't you admit that, there is not anything nefarious about it, I just wanted to get into focus?
Carl B. Frankel: There is a union that had a 75% rule; the Glass Bottle Blowers had a 75% requirement and there is another way of looking at stringency, Your Honor some unions require 50% attendance in each year. Now, that may be more stringent than 50% over a period of three years.
William H. Rehnquist: I suppose from the point of view of the union, if you averaged 80 or 90% attendance at the meeting, you have could count on the members when they cast their ballots at election to realize that the one of the candidates had never come to meetings and wasn't that very good bet. But if you get 10% of the candidates, 10% of the enrollment at the meetings, the typical man casting his ballot for a union also it doesn't really have an idea whether anyone else can, I mean, because he probably didn't come himself.
Carl B. Frankel: Well, that maybe Your Honor.
John Paul Stevens: In fact, doesn't -- one of the purposes of the rule as I remember was to encourage meeting attendance, is that right?
Carl B. Frankel: It not only to encourage meeting attendance, Your Honor, but to encourage those who oppose the leadership of the Union.
John Paul Stevens: Well I understand, but just to confining it to encouraging meeting attendance, it really has not succeeded in that purpose at all, has it?
Carl B. Frankel: Well, it's hard to tell what point there is success and at what point there isn't. If you compare the percentage wise, the attendance of this Local Union, it was slightly better than it is in other Local Unions.
John Paul Stevens: And you mean that most of the Locals has less 10% --
Carl B. Frankel: No I have no way of knowing. I am talking about the Locals which we know about who were litigating cases, but I would say this Your Honor, the important point from my standpoint is not only the number, but one; how can you tell at what point you have achieved sufficient attendance, so that your rule is valid in the eyes of the Secretary, number one and number two the most important feature, purpose of that rule is to get those people who are opposed to the leadership to come to the meetings and to do so over the term.
John Paul Stevens: But they must decide under the rule at least 18 months in advance of the election, if they want to oppose the leadership, must they not?
Carl B. Frankel: No they must decide whether they wish to run for office –
John Paul Stevens: At least 18 months in advance.
Carl B. Frankel: 18 months in advance.
John Paul Stevens: Do you think just that 18 months time period is kind of unreasonable?
Carl B. Frankel: Your Honor, I have this problem. The Secretary says 18 months is too long in advance. If we had one-year rule, we would say that that requires, that the member has to make his decision too late, I really say he has to make it too early.
John Paul Stevens: Why he would have to make it too late?
Carl B. Frankel: Well, because if the time would have gone by for him to qualify. If he had, for example, a rule which you had at the last, in the last year you had to attend half the meetings, that's all. A member may have attended every meeting for two years and I can assure you the Secretary would say that if he attended every meeting for two years and now in the last year you are required to attend half a meetings and he doesn't make it, that would be an invalid rule. To continue that we have a --
John Paul Stevens: Well, just the only thought that runs through my mind is the fact that you can hypothesize a whole host of invalid rules; it doesn't seem to me very persuasive as to whether this is a real --
Carl B. Frankel: The problem I am getting to is that the Secretary is also rescinded a -- to his original part, the regulation which permitted a two-year rule. So we have --
John Paul Stevens: So we are not deciding what was reason or unreasonable about the Secretary has done in another situations. The question is whether this particular rule is reasonable, is that the only the issue we have here?
Carl B. Frankel: That's correct, Your Honor, but in order to determine what is reasonable, in order to determine what is reasonable given the fact that the Secretary says, that a meeting attendance rule is itself reasonable then there has to be some measuring period and what we are saying is the Secretary hasn't given us any way to knowing what that measuring, what kind of appropriate measuring period they are giving.
John Paul Stevens: Let me put it this way. Without referring to the Secretary at all, it would be helpful if you could give me some persuasive reason why it's reasonable to say that unless a man makes up his mind 18 months in advance of an election, that he wants to be a candidate in that election, he may not become a candidate?
Carl B. Frankel: The reason I would give Your Honor, is that if we didn't do that then we will remove the incentive for opponents of the leadership to attend early in the term, in the first 18 months, that is the reason.
John Paul Stevens: But what if he doesn't know until within the 18 month the period that he disagrees with the leadership. I mean, persons aren't permanently opponents or supporters, they always change their minds. You have to become and opponent more than 18 months in advance under your approach, as I understand it?
Carl B. Frankel: That is correct.
Potter Stewart: No, that's not true if you have attended every meeting?
Speaker: Unless you attended every meeting otherwise --
Carl B. Frankel: No meetings in the first 18 months --
John Paul Stevens: Unless you are within the 3% or so that attend meetings regularly.
Carl B. Frankel: Or unless you have work excuse during the first 18 months.
Potter Stewart: Yeah, it’s right. May I ask you this question? I suppose you would agree that my brother Stevens has correctly stated the question before us, but I would rather thought it wasn't whether or not this Union rule is reasonable but whether or whether or not the Secretary was justified under the statute in finding that it was reasonable and there may be a differences so like a jury verdict.
Carl B. Frankel: I don't think the Secretary in this --
Potter Stewart: Isn’t that the question rather than the one that is posed by my brother Stevens?
Carl B. Frankel: You Honor, I think the test is whether the rule is reasonable under the statue and in making that determination one must consider what the Secretary says and give it a certain amount of way, that's why we have opposed --
Potter Stewart: And the question is posed by my brother Stevens didn’t describe anyway to the Secretary's determination.
Carl B. Frankel: That's correct.
Potter Stewart: And you would agree that some difference at least, some difference must be given with that?
Carl B. Frankel: I would agree with that, have the Secretary come up with a standard.
William J. Brennan, Jr.: Didn't Dunlop suggested maybe it’s more than just a little difference?
Carl B. Frankel: Pardon?
William J. Brennan, Jr.: Didn't Dunlop and Bachowski suggested that more than little difference has to be given to Secretary's determination?
Carl B. Frankel: If the Secretary had issued a standard which Unions could understand and determine whether their rule was valid. I would agree with that Your Honor. The problem we have the Secretary has never articulated a standard which tells any Union, whether it's meeting attendance rule will pass muster or won't, we have no way of knowing.
William H. Rehnquist: 401 (e) says nothing about any authority of the Secretary to decide what's reasonable, does it?
Carl B. Frankel: No it does not at all.
Potter Stewart: He does administrate the statute?
Carl B. Frankel: He administrates the statute and --
Potter Stewart: Surely something must flow from that, we don't administer the Act?
Carl B. Frankel: That’s correct and I am not saying, you disregard what the Secretary says, I am not suggesting that, but I am saying that Secretary has to come up with -- with a standard which tells labor unions, given the fact he says meeting attendance rules are alright, which tells a labor union whether its rules is reasonable or not. If you are drafting a meeting attendance rule with the Secretary’s current standard, and we face that problem, if you delegate trying to decide whether a meeting attendance rule is reasonable and the Secretary's approaching or not, how would you know?
Warren E. Burger: Well, does the actual attendance record have a bearing in evaluating the reasonableness?
Carl B. Frankel: Not of this rule, Your Honor, because the member has it within his power to attend or not to attend and the burden is not an onerous one. If the member didn't have it within his power, if by some pre-ordained regulation or rule, the incumbents had control over who came and who didn't or how many people were eligible and how many weren't, then I would agree that the number who meet the rule or to choose to comply with it that that would be relevant, but if it's within the member's free choice and if the requirement not a burdensome one then we don't think you should be able to judge the rule on the basis of whether the members choose to comply or not. That’s not the reason, that's not the basis for determining the validity of a rule. So whether people comply with it so long, so long, I emphasize very heavily, the meeting hall is accessible and the burden isn't asking too much of the member. That's all we are saying.
Byron R. White: I take it this is a direct enforcement sort of statue and to enforce that the Secretary goes to court.
Carl B. Frankel: That's correct.
Byron R. White: It's not an administrative proceeding?
Carl B. Frankel: No.
Byron R. White: And so it's like the antitrust laws, the proper justice just files a law suit?
Carl B. Frankel: Upon the complaint of the member.
Byron R. White: Yes and so the Secretary in this case like the Attorney General is asserting some construction of the law in court?
Carl B. Frankel: That's correct.
William H. Rehnquist: But there is no previous administrative determination he makes is binding on you in the absence of a court act?
Carl B. Frankel: That’s correct, Your Honor. He decides to sue is what he does and ---
John Paul Stevens: But then his administrative burden is more on the nature of advice is to the kind of cases he will initiate rather than that improvement?
Carl B. Frankel: That’s essentially Your Honor –
Byron R. White: Like a speech of the Assistant Attorney General in charge of the antitrust division.
Carl B. Frankel: Well Your Honor, I hesitate to say anything about antitrust.
Byron R. White: Alright.
Carl B. Frankel: Your Honor, I would say one concluding point. If we are going to look at effects why not look to see whether in fact the steelworker rule entrenches Local Union officers. The Secretary has never done and the facts are --
William J. Brennan, Jr.: Whether it entrenches what?
Carl B. Frankel: Entrenches incumbent officers, perpetuates incumbents into office. The facts are within the Steelworkers that they are always contest. In this case that compliant who lost in that was one of two loosing candidates in 1970 defeated incumbent in 1973 and we have cited in our brief there are wholesale changes in officers in this Local, there are wholesale changes throughout the steelworkers, one case I tried Local 1299, an incumbent president had never won up until the date of that trial and entire slates were put into staff representatives were wiped up. The point is that if there is any measure, any measure of rules, of whether the rule is valid in terms of impact that would be it and not whether the members choose to comply. Thank you.
Warren E. Burger: Mr. Rupp.
John P. Rupp: Mr. Chief Justice and may it please the Court. Petitioner’s burden has been to convince this Court that their meeting attendance rule is reasonable, under section 401 (e) of the Labor-Management Reporting and Disclosure Act despite the fact, that during the 1970 election it disqualified, 96.5% of the members of Local 3489 for standing for office and despite the fact, that it requires dissident unit members to plan their candidacies as early as 18 months prior to the election.
Warren E. Burger: And even that assumes, does it not, that they have got to attend all the meetings after that, but attended not in the court --
John P. Rupp: Well, I say as early as and I'll return to that at a moment, but so long as the person desiring to run for office has not attended a significant number of meetings in the early part of the term, the burden that can result from operation of the rule is a requirement to attend all 18 meetings, proceeding the election.
Thurgood Marshall: Isn't there a possibility that the one steelworker who is interested enough in the union to go to the meetings without tunning for office?
John P. Rupp: Yes, Mr. Justice Marshall.
Thurgood Marshall: Well, wasn't that duty of -- you don't know how many workers they are like that, didn't they?
John P. Rupp: We don't know -- well, we do have some indication from this --
Thurgood Marshall: They are enjoying it, they just like to go to meeting?
John P. Rupp: There are some people of course who are interested in attending Union meetings to see some --
Thurgood Marshall: Well, that's not included in your figure?
John P. Rupp: Yes, it is.
Thurgood Marshall: Well how many are they?
John P. Rupp: The register -- the meeting attendance register in this case reflects the number of members who attended each and every meeting during the three-year period preceding the 1970 election. What the teller did in this case and in another cases involving Steelworker Locals, is to compute from that attendance register, the number of people who were qualified to stand for office by virtue of their attendance; actual attendance in meetings. In this case, the results of those tabulations where the 22 members of this Local were eligible to stand for office in 1970. So we do know, that the top here so far as meeting attendance; actual meeting attendance is concerned was 22 members. Now some of those members obviously went to those meetings, not having any present or developed intention of running for office.
Thurgood Marshall: How many went to one less than number of meeting?
John P. Rupp: We know that three members went to more than 15 meetings but fewer of them 18 minutes.
Thurgood Marshall: How many attend the 12 meetings?
John P. Rupp: The record doesn't reflected.
Thurgood Marshall: That's right. That's all I have got.
John P. Rupp: Yes, the record doesn't reflect it. Petitioners rests its defense on rule -- of the rule on three related objectives which in their view, the rule is designed to serve. Assurance that would be office holders have an interest in the Union and Union affairs, assurance of capable Union leadership and encouragement of attendance in meetings, but at no time have petitioners attempted to demonstrate that these objectives can't be met by methods or requirements that's trench less severely on the goals of the Labor-Management Reporting and Disclosure Act, and particularly the election provisions of Title IV than does the rule involved in this case.
Potter Stewart: Didn't you Mr. Rupp have burden of proof and wasn't I mistaken a while ago when I said that Mr. Justice Stevens had perhaps not stated the issue correctly. I think he did state it correctly. This is not administrative proceeding, this was a law suit in which you had the burden of proof, didn't it?
John P. Rupp: I believe that the Secretary did have the burden of proof, that is right.
Potter Stewart: And that is whether not you proved that these were not reasonable?
John P. Rupp: That is correct. Now, I am not prepared to say though that the Secretary's determination is not entitled to some weight. Perhaps it is entitled --
Potter Stewart: Why, why you are just apply for a law suit under the Act, don't you? You have a burden proving it. You don't have any assumption in your favor, do you under this statute or am I mistaken?
John P. Rupp: No, no, we are not, the Secretary has not --
Warren E. Burger: Is he a plaintiff in the ordinary sense or is he a plaintiff in a representative sense?
John P. Rupp: That is a point that I want to make. He is a plaintiff in a representational sense. The Secretary is not entitled to a presumption in his favor. He is not entitled --
Potter Stewart: Anymore than the justice department is when it brings an anti-trust suit, is that correct?
John P. Rupp: I think that he has entitled to somewhat greater weight.
Potter Stewart: Why?
John P. Rupp: Because the legislative history of this Act as this Court found in the Hotel Employees case and again Glass Bottle Blowers case, the decision to entrust the administration of this statute to the Secretary of Labor --
Potter Stewart: The administration of anti-trust laws that justice department do, aren't they?
John P. Rupp: Yes they are, but not in quite the same sense. This is an administrative official. In this case, we are taking a very largely prosecutorial functions.
William H. Rehnquist: So is the Assistant Attorney General under the Anti-trust Division?
John P. Rupp: Well that is correct, and I don't want to make a big point of this. We, our position, our basic position is that the case has been made here that this rule is unreasonable.
Potter Stewart: And you do then concede that you have the burden of proving that in a Federal Court?
John P. Rupp: And I do concede that the Secretary has the burden.
John Paul Stevens: Isn't the purpose of committing the oarsmen function to the Secretary and denying the individual member to right to sue, wasn't that designed to screen out frivolous claims and protect the Unions from having to defend too many claims in this case, but perhaps supposing even harder and more --
John P. Rupp: Well that may have been one of the motives. Another is that centralized control by an administrative official and official of the United States government having some expertise in this matter was taught to be beneficent. There was also requirement in the Act as you know, for the exhaustion of internal administrative remedies within the Union.
Byron R. White: And that is the individual can sue himself?
John P. Rupp: He can't.
Byron R. White: He can't and the Secretary is required to investigate and make a decision to whether to sue or not?
John P. Rupp: That is correct.
Byron R. White: And his decision not to sue is reviewable?
John P. Rupp: I believe that it is.
Byron R. White: And has a difference -- different, different antitrust different situation where the anti-trust -- there may be complaints filed at Antitrust Division but nobody is about to review the Assistant Attorney General's decision not to file the case?
John P. Rupp: That is correct, it's also different than (Voice Overlap)
Potter Stewart: But an individual can sue under anti-trust laws?
John P. Rupp: An individual can sue.
Potter Stewart: Yes.
John P. Rupp: Yes, yes.
Potter Stewart: That's what I thought.
John P. Rupp: We submit -- our basic submission here is that the Secretary has shown by overwhelming evidence, the unreasonableness of this rule.
Thurgood Marshall: What rule, what degree?
John P. Rupp: Well, let me say that the Secretary's regulations, which where promulgated by the Secretary in an effort to provide some guidance to Unions affected by the Labor-Management Reporting and Disclosure Act, list a number of factors that are to be taken into account in determining the reasonableness of a rule. At one point, the Secretary indulged in a presumption that a meeting attendance rule extending over two-year period of time and requiring no more than 50% attendance at the meetings that occur during that period, would be reasonable absent extraordinary circumstances. The Secretary's experience under this Act since 1959 has led him to conclude that in a flexible approach of that sort is now warranted. The fact there is that the Secretary presently considers are the relationship of the qualifications to the legitimate needs and interest of the Union, the relationship and the qualifications of the man's union office, the impact of the qualification in percentage terms and the burden that the particular qualification entails --
William J. Brennan, Jr.: This is what the Secretary considered why, as it predicate to whether or not he is going to file the suit?
John P. Rupp: That's correct.
William J. Brennan, Jr.: That's the only reason why he considers these things?
John P. Rupp: What he is attempting to do is provide guidance to Unions that are reflected by the statute?
William J. Brennan, Jr.: Yes, but when a particular case comes up, he goes through this process that you have described for us, only to determine whether or not he is going to file a law suit, does he?
John P. Rupp: Well he goes through it in the first instance to decide whether to contact the International Union or the Local involved to attempt to convince them and change the rule, there is that kind of an administrative process if I can call it that, that precedes the filing of the complaint and effort is made in every case to try to resolve differences between the Secretary and the Union short of litigation. Only if those efforts have failed and the Secretary concludes that the requirement is unreasonable, does the Secretary goes to the court and while the record here doesn't show, the number of cases in which an amicable or somewhat less than amicable settlement has achieved, but it is achieved in a number of cases.
Potter Stewart: Well that's true I suppose lots of litigation is settled before it's gets to court. Isn't that true that the legislative history of this 1959 legislation indicates the purpose of this provision was to guard against the unfair or inequitable continuation in office of incumbent union leadership?
John P. Rupp: That is one of the purposes.
Potter Stewart: Well, wasn't that the purpose?
John P. Rupp: It was not, well perhaps, simply stated perhaps that is the purpose, the overriding purpose, but Congress also had other kinds of things in mind that are related to avoiding the perpetuation in office of incumbent leadership, by incumbent leadership. Congress had in mind permitting Union members to have a free and democratic voice in Union affairs.
Potter Stewart: In order to accomplish that basic legislative purpose, in order to avoid the risk of unfairly or inequitably continuing incumbent leadership. Is that right? That was a purpose, right?
John P. Rupp: Yes, that is the overriding purpose.
Potter Stewart: And shouldn't that therefore be the focus of the Secretary's inquiry as to any rule and determine whether or not it is reasonable to find out whether it would tend to perpetuate, unfairly perpetuate incumbent union leadership and he could determine that by normal rational predictive, intellectual processes or to which would be contributed to the past history, wouldn't that be true? And not a word of what you read us, that bureaucratic (Inaudible) mentioned anything about the tendency to perpetuated an office incumbent union leadership, did it?
John P. Rupp: Well, it is the Secretary's position that if one or two percent of the membership are eligible to run for office because of a candidacy restriction, that is prime facie evidence of a violation of the Act. I do not know precisely how one would prove that there has been a kind of entrenchment.
Potter Stewart: By looking at the record, that is how you prove it. That there has been or has been.
John P. Rupp: One would never know precisely whether those people were maintained in office because they happen to be enlighten leadership and they were able to carry the.
Potter Stewart: But if they were not maintained in office, then you would know that, in any event incumbent leadership had not been maintained in the office?
John P. Rupp: Well, but Congress's purpose here was not to turned out union office for --
Potter Stewart: But if in fact the record show they had not been, you would not need to take step two, would you?
John P. Rupp: If the record show that they had not been turned out?
Potter Stewart: Had not been retained, then that would be the end of it?
John P. Rupp: No, I do not believe that is the case. We may well have a situation in which there is a turnover -- in which there was a turnover in the principle union offices among a relatively small coterie of people.
Potter Stewart: You may just passing the office back?
John P. Rupp: Passing the office back and forth, we have seen that. That is not what Congress had in mind. Congress had in mind that everyone, every union member in good standing should have the opportunity to run for office, subject to reasonable qualifications uniformly imposed.
Potter Stewart: My basic question was simply this. If I am correct and I used to tell me that I am in my understanding of the what the legislative history shows to be the purpose of this legislation i.e. to prevent the continuation office of incumbent leadership by unfair means then why shouldn't the focus of the Secretary's inquiry in determining whether or not these are reasonable rules be whether or not they have the tendency to promote that purpose that Congress thought was undesirable?
John P. Rupp: Well, the focus of the Secretary's inquiry is on whether Union members have had an opportunity for free and democratic election which is perhaps another way of stating your point. In the process of determining whether that has occurred in a particular case, the Secretary looks in a variety of factors, including whether there has been a continuation in office of the same people, but that can never be conclusive because those people may have been continued in office for entirely legitimate regions. But when the Secretary also sees, in addition to or perhaps even when the entrenchment is not clear, that only a very small number of people are eligible to run for office in any given election, that a particular candidacy qualification imposes substantial burdens on members desiring to run for office and those burdens are not justified in the Secretary's view by the objectives of the particular qualification. The Secretary believes he has the duty to bring a law suit and believes that the particular qualification is unreasonable.
Thurgood Marshall: Mr. Rupp, if I can get you back to my original question, how could a union lawyer looking at what you just read me about ten minutes ago, and draw a up a rule that would be acceptable?
John P. Rupp: It is difficult. I would concede it deals --
Thurgood Marshall: Is it -- would not it made impossible?
John P. Rupp: No, I will not. No.
Thurgood Marshall: I said one that is sure to pass muster?
John P. Rupp: No.
Thurgood Marshall: Sure I said, that is impossible?
John P. Rupp: Well, if sure means a 100 assurance, I suppose that is impossible.
Thurgood Marshall: I mean you studied, you worked with it, I am not too sure you could draw (Inaudible) under those rules because they do not say one month, two months, six years, eight years, one percent, eleven percent; it has nothing that you put your finger on?
John P. Rupp: Well, we have to recall.
Warren E. Burger: One way to get at this be to look at the actual attendance records which in this case, on this record shows that only 22 out of 660 people were eligible for a number of union offices and the Secretary might have appropriately to answer this inquiry, look to what figures would enable one-fourths, let us say of the 660 to be eligible and then fix the attendance requirements to fit that larger number.
John P. Rupp: Well, of course it would be ideal if that kind of predictability were possible and perhaps in some Unions it is.
Thurgood Marshall: And when you do that, would you also realize that this is an International Union with how many Locals?
John P. Rupp: With 5,200 Locals.
Thurgood Marshall: And you are going to get a rule that this Local, the 5,000 Locals all lose because of this one Local?
John P. Rupp: No, that is not the case. If you look at the cases cited in the Government's brief on Page 25 I believe, the data is cited on Page 25 of the Government's brief, you will find that the situation we have here because of the operation of this three-year 50% meeting attendance requirement, has been about the same in all other locals that the Secretary has brought suit we believe in most other Locals.
Thurgood Marshall: I am not talking about that. I am talking about not the ones he brought suit. I am talking about the other 5,000 because isn't your position that this entire provision goes out?
John P. Rupp: Our position is precisely that.
Thurgood Marshall: That means all 5,000 Locals?
John P. Rupp: But the reason is not only because it happens to eliminate to disqualify from seeking Union office. In most cases, in which it's applied 90%, 95%, 98% of the Union membership, it is also because it places a very significant, unjustified burden on people desiring the run for Union office. The Steelworkers have a relatively easy task, we believe so far as the first aspect of the decision that they have to make. That is we believe that a three-year, 50% meeting attendance requirement is unreasonable, unreasonable without more.
Thurgood Marshall: What is reasonable in the Steelworkers?
John P. Rupp: Well, it is exceedingly difficult to me to stand here and say that the Secretary is going to say that a two-year, 50% rule is okay, that a one-year, 50% rule is okay, we do not have that experience in the Steelworkers Union.
Thurgood Marshall: What is reasonable?
John P. Rupp: A reasonable rule.
Thurgood Marshall: Isn't that, what we to decide whether it is reasonable or not?
John P. Rupp: Yes, that is correct.
Thurgood Marshall: Isn't it a part of that could be very well as to what is reasonable?
John P. Rupp: Yes, of course.
Thurgood Marshall: Well, what is reasonable?
John P. Rupp: I simply cannot give you a precise rule. The matter is more complicated than that. It requires more knowledge of the dynamics than I have.
Warren E. Burger: Is it anymore a requirement now to fix that thing is than it was for the Judge who was trying this case originally? The judge trying this case originally was presented with the negative question, is this unreasonable?
John P. Rupp: That is correct.
Warren E. Burger: Not the affirmative of what is reasonable? If you prevail in this law suit then the Secretary has the burden of going forward, does he not?
John P. Rupp: The Steelworkers will then look at the situation that prevails and they are now 5,200 Locals, they were 3700 Locals at the time this litigation began. We will attempt to structure a rule, either a meeting attendance rule or some other rule to serve the objectives that they believe ought to be served, encouragement of attendance at meetings. The Secretary will then look at the operation of that rule in particular Locals, in as many Locals as possible and try to reach a determination concerning its reasonableness.
William H. Rehnquist: Well, that just leaves them at sea, it seems to me. If you look at, it is a question of fact, the trial judge here found it was reasonable, it is a kind of thing that you say it is like a Jury determination. Now obviously you do not mean that and if it is not a fact question or jury determination type of thing, it ought to be capable of some articulation of these people are going to be guided?
John P. Rupp: Well, it certainly is not a fact question or factual disputes involved in this record, I think they are minor. It is very largely a question of law. Again part of it difficult to hear I think stems from the fact, that what Congress did hear was to say that any meeting at any qualification for candidacy has to be reasonable. That term has content, but it has content -- it develops specific content in the process of administering the statute, in the process of the courts looking at the impact of particular rules in the context of particular locals. Now, it seems quite unlikely to me that the Secretary is going to challenge a meeting attendance requirement that extends for a year and requires attendance of 50 % in the meetings. We know that a number of international unions have such rules. The Secretary has not moved against such rules. There are some additional, a few additional unions that have two-year rules and require 50 percent attendance at those meetings. Again, the Secretary has not thus far challenged those rules because at this point, they appear to be operating reasonably, they appear to be administered reasonably, and they are responsive to bona fide union objectives. If the Steelworkers are concerned about being caught in a kind of whipsaw of the term reasonableness, not knowing precisely where to turn, one suggestion that they might pursue is to look at what is occurring among unions elsewhere. This rule is virtually unique in trade union practice. Only one other international union has a three-year, 50 % meeting attendance requirement. That union requires attendance at two meetings during the first year, two meetings during the second year, and three meetings during the third year, for a total of seven meetings. The Steelworkers require 18. We know of no other case involving a rule, that so uniformly and consistently disqualifies 90-95-98 % of the membership standing for office.
John Paul Stevens: Mr. Rupp does the record tell us what would happen in this case, if there were less people who were eligible to run than there were vacant officers, that could happen --
John P. Rupp: Yes, yes, we do know what happens in that circumstance because it occurred here. In the 1970 election, 23 people were found to be eligible to seek office, 13 of those people chose to run, the union has ten offices. Because of the concentration of people for couple of offices, trusteeship decisions and the presidency, one office was left without a nominee who was eligible to run. Under the long standing practice of this union, if no one is eligible to seek the office, the union permits an otherwise ineligible person to run on the post.
John Paul Stevens: Does the record tell us whether that is a purely a local practice or whether that is consistent with international constitution?
John P. Rupp: I do not think the record tells us. Now let me also add a couple of figures that I think are a less relevant, go to Mr. Justice Stewart's point about entrenchment, that is of the 13 people who ran in this local in 1970, six were incumbents, most of those ran to fill offices albeit one or two, ran to fill offices and were unopposed in the election. All incumbents prevailed in the election which means that incumbents retained control in this union in 1970, of six of the ten offices. The only offices for which there was opposition were the offices of president and trustee. For president, there were three candidates, for trusteeships of which there were three, there were four candidates. Of 660 members, 22 were found to be eligible by virtue of having attended, by virtue of their having attended the requisite number of meetings. An additional member was found to be eligible by a combination of meeting attendance, credits and meeting attendance. Now, the Steelworkers dispute, the Court of Appeals finding that there were only 23 eligible members here, it seems to us that that challenge come much too late. There is evidence in the record, there is testimony in the record, involving labor department's investigator, and the question is I believe this has been asked, it came at the end of the government counsel's questions of the labor department's investigators, I believe this question has been asked, however to be sure, based on your investigation of the attendance register and the work credits and strengths deal the employers, whether any other members of the defending local other than Mr. Loru (ph) eligible by virtue of a combination of attendance credits and work credits? The answer was no.
William J. Brennan, Jr.: How many of the 23 are incumbents?
John P. Rupp: Are incumbents? Nine or ten, so half.
William J. Brennan, Jr.: Almost a half.
John P. Rupp: That is right. Now that means that of the non-incumbent officers of this union in 1970, less than 2 % of the membership were eligible to run for office. Now, I might bring to the court's attention a case that was decided by the First Circuit a couple of days ago, a panel comprised of Mr. Justice Clark and Judges McEntee and Campbell involving a rule of the Amalgamated Transit Union. This was a two-year rule and the required attendance at six meetings for each of those years. The court held that that rule was unreasonable. It's reasoning in essence was that, that rule, like this rule, requires people desiring to run for office to plan their candidacies as early as 18 months prior the election.
William J. Brennan, Jr.: Is that decision cited?
John P. Rupp: We do not have a cite yet, but I have given copies to court clerk. The name of the case is Usery versus Local Division 1205.
William J. Brennan, Jr.: Usery?
Speaker: Usery.
John P. Rupp: Usery, yes, of the Amalgamated Transit Union and as I say...
William J. Brennan, Jr.: So you circulated copies of it?
John P. Rupp: I have provided copies to the clerk and then he will circulate. So again it seems to me that the principal problems with this rule are two. First, it disqualifies the vast majority of the members of local Steelworkers union from seeking, standing for office. Secondly, it places an enormous burden on people desiring to run for office, that is it requires them to plan their nominations as their candidacies as early as 18 months prior to the election. The justifications that have been advanced by the Steelworkers for the rule are basically three; encouragement of attendance of meeting, assurance with the office holders having interest in union affairs, and assurance of capable union leadership. While the Secretary does not believe that meeting attendance rules are not responsive to any bona fide union objectives, he does not believe that this meeting attendance rule is sufficiently related to those objectives to justify the burdens and the effects of the rule. There is no showing here for example, that a two-year, 50 % meeting attendance rule would not have been as efficacious in serving the goals that the Steelworkers say they are attempting to serve here as does their three-year 50 % --
Potter Stewart: It's not putting the burden of proof on the wrong party when you make that argument?
John P. Rupp: Well, the Secretary's position is that the rule is unreasonable because it disqualifies over 90 % of the union members from seeking office and requires them to plan their candidacies 18 months in advance of the election.
Potter Stewart: And you have the burden of proving that?
John P. Rupp: Yes.
Potter Stewart: In a court?
John P. Rupp: Yes, and we believe we have proved that. We believe it is unreasonable without more. At a minimum, however, we believe that it is unreasonable unless there are overwhelming justifications. We do not think that the Steelworkers have advanced any in this case.
Warren E. Burger: Is it your position, the government's position that the Secretary in the first instance and the district judge dealing with that in the case is entitled to reach these conclusions on the basis of the tendency of this kind of an attendance rule to undermine democratic principles in the government of unions?
John P. Rupp: The goal is free and democratic elections. It seems to me incredible and this Court itself has analogized Section 401 (e) to political elections generally, that is the Congress had in mind when it structured democratic elections for unions, elections for the populous at large, it seems inconceivable to me that this Court would long tolerate a qualification on candidacy that disqualified 96 to 98 % of the eligible American voters for standing for public office.
William H. Rehnquist: We have upheld a 15-year residency of requirement?
John P. Rupp: Well, this union has what is an essence a residency requirement. It is not 15 years but there was not -- but this Court has never been confronted with data of this sort, evidence of this sort.
William H. Rehnquist: 15-year residency requirement would do the simply like Florida or Arizona. How many people --
John P. Rupp: I do not believe that it would disqualify 96.5 % or 98 % of those people who do not presently hold office from seeking office in Florida. It is inconceivable, and it is difficult to believe that if it did, it would be held to be constitutional. It is difficult to conceive of a qualification, I think impossible to conceive the qualification in the political arena, generally, that would disqualify that kind of people in placing an 18-month burden on their candidacies and that this Court would still find that it was constitutional.
Warren E. Burger: Thank you Mr. Rupp. Do you have anything further Mr. Mr. Frankel?
Potter Stewart: Before you sit down, there is no constitutional question involved in this case, is there?
John P. Rupp: No, there is no constitutional question. The question is one of statute.
Carl B. Frankel: Mr. Chief Justice and may it please the Court. Just a couple of quick points. One, the average attendance was 47. I don't know whether I have said that at this meeting and although only 22 met the eligibility requirement, there would be average attendance at meeting was 47. Counsel for the Secretary has made a point which I have never heard the Secretary make in any of the meeting attendance cases until now and that is that our rule imposed a burden on member. He has never taken the position that the requirement of attending one meeting every other month was a burdensome requirement on members.
Warren E. Burger: Of course I understood you said it was burden on those who wanted to be candidates? It is a burden on candidacies as only 22 are eligible which is not a great --
Carl B. Frankel: Well, we get back to the other point, Your Honor. I have difficulty trying to conclude or concluding that a rule which is not difficult for a member to comply with is unreasonable because he chooses not to comply with it.
Warren E. Burger: And you do not think that is affected by these enormous number of who do not comply with that?
Carl B. Frankel: They chose not to, Your Honor. I mean, that is a decision they had. So as long as we do not make it difficult for them, they choose to stay away, that is a decision that they have made. Now, the other point that the Secretary has made is that the regulation is to guide unions, to furnish guidance to the unions and as we pointed out, it does not furnish any guidance at all. No one could conceivably draft a rule after looking at that resolution. Regulation of the Secretary has issue. The other problem with the impact that is the members who are eligible, that would disqualify any meeting attendance rule because he would not know, it would be possible with a one-year rule, with a two-year rule to have 96 %. You could have the simplest requirement in the world.
Warren E. Burger: Your time has expired.
Carl B. Frankel: Oh! I am sorry. Thank you, Your Honor.
Warren E. Burger: Thank you gentlemen. The case is submitted.