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WIRTZ v. LOCAL 153

August 26, 1965

W. Willard Wirtz, Secretary of Labor, United States Department of Labor, Plaintiff,
v.
Local 153, Glass Bottle Blowers Association of the United States and Canada, AFL-CIO (GBBA), Defendant


Dumbauld, D.J.


The opinion of the court was delivered by: DUMBAULD

The question for decision here is whether a provision requiring attendance at 75% of the regular meetings of a union for a two-year period since the last previous election in order to be eligible as a candidate for office in the union is or is not among the "reasonable qualifications" permitted by Section 401(e) of the Labor-Management Reporting and Disclosure Act of September 14, 1959 (commonly known as the Landrum-Griffin Act), 73 Stat. 532, 29 U.S.C. § 481(e).

 That section provides:

 
"(e) In any election required by this section which is to be held by secret ballot a reasonable opportunity shall be given for the nomination of candidates and every member in good standing shall be eligible to be a candidate and to hold office (subject to section 504 of this title and to reasonable qualifications uniformly imposed) and shall have the right to vote for or otherwise support the candidate or candidates of his choice, without being subject to penalty, discipline, or improper interference or reprisal of any kind by such organization or any member thereof." *fn1"

 Section 402, 29 U.S.C. § 482, provides enforcement procedure. Upon investigation of a complaint duly filed by a member of a labor organization, the Secretary of Labor, if he finds probable cause to believe that a violation of the election provisions of the Act has occurred and has not been remedied, may bring a civil action, against the union as an entity, to set aside the election and direct the conduct of an election under supervision of the Secretary.

 If, upon a preponderance of the evidence after a trial upon the merits, the Court finds that the violation of Section 401 "may have affected the outcome of an election", the Court shall declare the election to be void and direct the conduct of a new election under the supervision of the Secretary.

 It will be noted that the Court, in order to declare the election void, must find not only the existence of a violation but that the violation may have affected the outcome of the election.

 The Court is vested with specific statutory jurisdiction in a proceeding de novo styled a civil action. This remedy is exclusive. Calhoon v. Harvey, 379 U.S. 134, 140, 13 L. Ed. 2d 190, 85 S. Ct. 292 (1964).

 The Court is not exercising the function of judicial review of an administrative agency, where the doctrine of "primary jurisdiction" would apply, and the scope of review would ordinarily be limited to the question of whether there was error or lack of substantial evidence to support the agency's conclusions. Texas & Pac. Ry. Co. v. Abilene Cotton Oil Co., 204 U.S. 426, 442, 51 L. Ed. 553, 27 S. Ct. 350 (1907) Rochester Tel. Corp. v. United States, 307 U.S. 125, 139-40 59 S. Ct. 754, 83 L. Ed. 1147 (1939); Universal Camera Corp. v. NLRB, 340 U.S. 474, 477-88, 95 L. Ed. 456, 71 S. Ct. 456 (1951).

 Here it can in no wise be contended, as Judge Learned Hand does in the instance of due process, that the courts are usurping power of the same sort which legislators exercise (though such usurpation is justified in order to prevent frustration of the governmental enterprise). Hand, The Bill of Rights, 29, 39 (1958). In our situation the power of the courts is expressly delegated by statute, and simply serves to bring into sharper focus a telescope which has already been pointed by Congress toward the desired objective. U.S. v. Curtiss-Wright Corp., 299 U.S. 304, 329, 81 L. Ed. 255, 57 S. Ct. 216 (1936).

 We are therefore authorized to exercise a legitimate discretion with respect to the intrinsic propriety, wisdom, or expediency of the regulations under consideration when determining their reasonableness, and not merely to pass judgment on the issue of bare power as to whether another agency of government has acted ultra vires. Stated differently, the distinction may be illustrated by saying that our function is somewhat comparable to an appeal in equity as distinguished from a writ of error, or to a direct appeal as distinguished from the collateral review permitted under the traditional or classical writ of habeas corpus. We must determine for ourselves on the merits the substantive question whether the result reached is right rather than merely the formal question whether someone else had power to pronounce and declare that it was right.

 The By-Laws of defendant Local Union No. 153 of the Glass Bottle Blowers Association provide, in Article 2, sec. 1 that regular meetings will be held the second Thursday of each month at 8:00 P.M., unless otherwise directed. Articles 3 and 4 provide that all officers shall be elected, by secret ballot, for a term of two years. [This is in conformity with the requirements of 29 U.S.C. § 481(b)].

 Article 4, sec. 12 is the crucial provision in this case. It ordains that: "No members may be a candidate unless said member is in good standing and has attended seventy-five (75%) of the regular local meetings since the last local election ". This is supplemented by Art. 4, sec. 13, which provides that: "In cases where members have to work at the time of meetings, and so notify the Recording Secretary, they shall be marked present at such meetings, provided they notify the Secretary in writing within seventy-two (72) hours following the meeting ".


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