author: TAMM, Circuit Judge:

text:
    LOCAL UNION NO. 2188, INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, AFL-CIO, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Western Electric Company, Inc., Intervenor. LOCAL UNION NO. 1974, INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, AFL-CIO, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Western Electric Company, Inc., Intervenor.
    Nos. 72-1994, 72-1995.
    United States Court of Appeals, District of Columbia Circuit.
    Argued Dec. 6, 1973.
    Decided Feb. 28, 1974.

      Laurence J. Cohen, Washington, D. C., with whom George Kaufmann, Washington, D. C., was on the brief, for petitioners.
    Jonathan G. Axelrod, Atty., N. L. R. B., with whom John S. Irving, Jr., Deputy Gen. Counsel, Patrick Hardin, Associate Gen. Counsel, Elliott Moore, Acting Gen. Counsel and Joseph E. Mayer, Atty., N. L. R. B., were on the brief for respondent. Marcel Mallet-Prevost, Asst. Gen. Counsel, N. L. R. B., at the time the record was filed also entered an appearance for respondent.
    Lawrence M. Joseph, New York City, was on the brief for intervenor.
    Gerard C. Smetana, Chicago, 111., filed a brief on behalf of the Chamber of Commerce of the United States of America, as amicus curiae urging af-firmance. Burt.A. Braverman, Alexandria, Va., entered an appearance for the Chamber of Commerce of the United States as amicus curiae.
    Before McGOWAN, TAMM and MacKINNON, Circuit Judges.
   TAMM, Circuit Judge:

The petitions in these consolidated cases seek review of two separate decisions of the National Labor Relations Board each of which invokes the Board’s policy of deference to the process of arbitration. In No. 72-1994, Local 2188, IBEW v. NLRB and Western Electric Co. and No. 72-1995, Local 1974, IBEW v. NLRB and Western Electric Co., the Board has declined to reach the merits of unfair labor practice complaints against Western Electric Co. because contracts between the parties provide for grievance and arbitration procedures. Since the facts of these two cases are virtually identical, they will be discussed together.

I.

Both cases arise from disputes regarding certain organizational changes at two plants of the Western Electric Company at Omaha, Nebraska and Shreveport, Louisiana. In 1969, the Omaha employees were restructured into three “manager’s organizations” whereas there had formerly been only two such groups. In 1970, a similar change was made at the Shreveport plant, creating two manager’s organizations in place of one. The significance of these changes, for present purposes, is that the contractual provisions governing movement of personnel (i. e. promotion, downgrading and lateral transfer) at both plants are keyed to the concept of a manager’s organization. For example, an employee can be considered for transfer within his manager’s organization, but cannot ordinarily move from one manager’s organization to another. Section 2.1(c) of Article 27 of the Omaha contract is illustrative :

When a vacancy occurs, employees of the Company who have qualifications for the vacancy will be considered in successive steps in the following order until the vacancy is filled:
(c) Graded employees in successively lower grades from within (1) the Assistant Manager’s organization having the vacancy for vacancies in grade 34 and lower, or (2) the Manager’s organization having the vacancy for vacancies in grade 35 and higher or in the JOURNEYMAN TRADES OCCUPATIONS or JOURNEYMEN from within the Manager’s organization having the vacancy.

Similar provisions are found in the section governing layoffs. The union argues that as a result of the company’s organizational changes, a literal reading of the words “manager’s organization” will drastically affect seniority rights of employees since each worker’s field of movement will be restricted to the new, smaller manager’s organizations. The union does not contest management’s right to reorganize the plants but urges that the employee movement provisions should be applied as if the Omaha plant still had only two manager’s organizations and the Shreveport plant still had only one. The Company insists upon a literal reading of the words “manager’s organization” and plans to administer employee movement on the basis of the new organizational structure at each plant. As a result of this impasse, each local filed unfair labor practice charges, alleging that the company has unilaterally changed the working conditions of its employees in violation of section 8(a)(5) of the National Labor Relations Act. In each case the Board dismissed the complaint, noting that the dispute involves a matter covered by the grievance and arbitration procedures contained in the labor contract. In both cases the Board retained jurisdiction for the limited purpose of entertaining a motion for further consideration upon a showing that either: (a) the dispute has not been resolved or submitted to' arbitration; or (b) the grievance and arbitration procedures have not been fair and regular or have reached a result repugnant to the National Labor Relations Act.

II.

The Board’s disposition of these two cases followed the rule established by its decision in Collyer Insulated Wire, 192 NLRB 837 (1971). In that case, like the present one, the union had charged the employer with effecting a unilateral change in working conditions. The employer defended the charge on the ground that its actions were authorized by the contract. Alternatively, the employer argued that the dispute ought to be resolved under the grievance and arbitration procedures contained in the contract. The Board agreed :

We find merit in Respondent’s exceptions that because this dispute in it*, entirety arises from the contract between the parties, and from the parties’ relationship under the contract, it ought to be resolved in the manner which that contract prescribes. We conclude that the Board is vested with authority to withhold its processes in this ease, and that the contract here made available a quick and fair means for the resolution of this dispute including, if appropriate, a fully effective remedy for any breach of contract which occurred. We conclude, in sum, that our obligation to advance the purposes of the Act is best discharged by the dismissal of this complaint.

Id. at 839.

It should be understood that the Col-lyer decision and those now under review are not based upon any right of the employer to compel the union to utilize grievance procedures rather than file charges with the Board. Rather, they proceed from the Board’s asserted power to withhold its processes when to do so will best serve the policies of the Federal labor laws. The Collyer doctrine has been applied by the Board in numerous subsequent cases and has received judicial approval in the Second Circuit. Nabisco, Inc. v. NLRB, 479 F.2d 770 (2d Cir. 1973).

The union attacks the present dismissals on alternative grounds. It is argued: first, that the Collyer doctrine is an illegal abdication of the Board’s duty to remedy unfair labor practices; and, second, that even if Collyer is valid, it was erroneously applied in these two eases. Both arguments must fail.

First of all, the Collyer rule of deferral to grievance and arbitration procedures is clearly valid. It is well established that the Board may decline to take jurisdiction of a complaint if, in its judgment, Federal labor policy is best served by leaving the parties to voluntary settlements. This principle has been approved in this Circuit, Office & Professional Employees Local 425 v. NLRB, 136 U.S.App.D.C. 12, 419 F.2d 314 (1969), and cited with approval by the Supreme Court. NLRB v. Plasterers’ Union, 404 U.S. 116, 136-137, 92 S. Ct. 360, 30 L.Ed.2d 312 (1971); Carey v. Westinghouse Corp., 375 U.S. 261, 270-271, 84 S.Ct. 401, 11 L.Ed.2d 320 (1964), quoting International Harvester Co., 138 NLRB 923, 925-26 (1962), aff’d sub nom. Ramsey v. NLRB, 327 F.2d 784 (7th Cir.), cert, denied, 377 U.S. 1003, 84 S.Ct. 1938, 12 L.Ed.2d 1052 (1964). See also Smith v. Evening News Ass’n, 371 U.S. 195, 198 n. 6, 83 S.Ct. 267, 9 L.Ed.2d 246 (1962). These authorities contemplate Board deference to arbitration awards issued before the filing of unfair labor practice complaints. Collyer and the decisions under review go a step further, however. In these cases the Board dismissed unfair labor practice complaints even though arbitration had not been initiated. Collyer is not the familiar case of deferral to an arbitration award, but deferral to the arbitration procedure which is available but not yet invoked. Like the former class of cases, the Collyer decision relies upon the Federal labor policy expressed in section 203(d) of the Labor Management Relations Act:

Final adjustment by a method agreed upon by the parties is declared to be the desirable method for settlement of grievance disputes arising over the application or interpretation of an existing collective-bargaining agreement.

We believe that this declaration of policy applies in the pre-arbitral (Collyer) context as well as in the post-award context. We also believe that this policy supports pre-arbitral deferral since the grievance and arbitration procedure is the only remedy left to a party from whom the Board withholds statutory relief. It should be clear, however, that the fostering of one policy may be detrimental to another policy, viz.: that expressed by the Congress in granting the Board power to remedy unfair labor practices. Certainly the Board appreciated this ambivalence in its Collyer opinion:

Thus, this case like each such case compels an accommodation between, on the one hand, the statutory policy favoring the fullest use of collective bargaining and the arbitral process and, on the other, the statutory policy reflected by Congress’ grant to the Board of exclusive jurisdiction to prevent unfair labor practices.

192 NLRB at 841. We read the Collyer doctrine as a balancing rule which requires deferral to arbitration only where a balance of both supporting and antagonistic policies favors deferral. The operation of this balancing process is demonstrated by the Collyer opinion itself. There the Board considered five factors bearing upon the probable effectiveness of arbitration to advance Federal labor policy:

1. the history and quality of the parties’ collective bargaining relationship;

2. the absence of anti-union animus;

3. willingness of the respondent party to arbitrate;

4. the scope of the arbitration clause;

5. suitability of the dispute to resolution by arbitration.

Id. at 842. In Collyer all of these considerations favored deferral. Elaborating on the fifth point, the Board noted that the factual bases of the statutory claim and of the contractual dispute were so intertwined that resolution of the contractual issue by arbitration might be dispositive of the statutory (unfair labor practice) issue:

The contract and its meaning in present circumstances lie at the center of this dispute. In contrast, the Act and its policies become involved only if it is determined that the agreement between .the parties, examined in the light of its negotiating history and the practices of the parties thereunder, did not sanction Respondent’s right to make the disputed changes That threshold determination is clearly within the expertise of a mutually agreed-upon arbitrator.

192 NLRB at 842. This congruence between the contractual dispute and the overlying unfair labor practice charge is significant. If it were not present, the Board’s abstention might have constituted not deference, but abdication.

Our endorsement of the Collyer rule would be incomplete without one further comment. While the Board’s promise to overrule arbitration awards which are irregular or repugnant to the Act is a necessary condition to the legality of pre-arbitral deferrals, it is not a sufficient one. Put another way, the fact that any ultimate award must conform to the policies of the Act does not guarantee that deferral itself is consistent with the Act. Pre-arbitral deferral might constitute an effective denial of any remedy if, for example, arbitration of the dispute would impose an undue financial burden upon one of the parties. Dismissal of the complaint m such a case would be contrary to the policies of the Act although all other criteria for application of the Collyer doctrine are met. Deferral might also be unjustified where it prevents an orderly exposition of the law in question. Successive arbitration awards could produce a variety of ad hoc solutions to the same problem, all consistent with the Act, but no uniform rule. In such circumstances further abstention by the Board might be contrary to Federal labor policy.

Having approved the Collyer decision, it remains for us to determine whether the principle of that case was properly applied in the cases at hand. We note, first of all, that the results of an arbitration will very likely be dispositive of the unfair labor practice issue: if the award adopts the union’s construction of the term “manager’s organization” for purposes of the Articles gov- • erning “Movement of Personnel”, then the company’s compliance with this decision would moot the instant unfair labor practice complaints; if the company’s construction prevails, of course, there will be no basis for the charge of unilateral action. This likelihood alone strongly supports the Board’s decision to dismiss the complaint pending the outcome of grievance and arbitration proceedings. Examination of the other factors considered in Collyer does not dissuade us from this view. The dispute is clearly within the scope of the grievance and arbitration procedures at both the Omaha and the Shreveport plants. The company has expressed its willingness to arbitrate. There is no suggestion of anti-union animus such that deferral to arbitration would be a futile gesture; nor does the history of the collective bargaining relationship of the parties indicate that arbitration would not be fruitful. We cannot conclude that the Board has abused its discretion by referring the parties in these cases to the grievance and arbitration procedures provided in their contracts.

Petitions denied.

      . These proceedings were consolidated by order of this court on November 28,1972.

      . Another panel of this Court has reached the same conclusion in a somewhat different case. Associated Press v. NLRB, 160 U.S. App.D.C. -, 492 F.2d 662 (1974).

      . A similar concern was expressed by Board Member Jenkins in his dissent from the Col-lyer decision. 192 NLRB at 854-55.

      . Shreveport Contract, Article 10, If 1, Article 11, j[ 1, I J.A. at 414-15; Omaha Contract, Article 9, 1f 1, Article 10, If 1, II J.A. at 574, 576.

      . Letter from Mr. T. H. Jackson to Mr. J. A. Burnett, February 18, 1971, I J.A. at 406; Trial Examiner’s Decision at 15, II J.A. at 24. The initial refusal of the Omaha management to arbitrate was apparently based on its mistaken belief that the union was challenging its right to reorganize the plant. As we have noted, the union’s only complaint concerns the interpretation of contract provisions governing movement of personnel.


source: Caselaw Access Project

author: VAN PELT, Senior District Judge: ROBB, Circuit Judge,

license: Public Domain

text:
    Peter J. BRENNAN, Secretary of Labor, et al. v. LOCAL UNION NO. 639, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, Ind., Appellant.
    No. 73-1938.
    United States Court of Appeals, District of Columbia Circuit.
    Argued Nov. 30, 1973.
    Decided March 8, 1974.
    Robb, Circuit Judge, dissented and filed opinion.

      Philip W. Amram, Washington, D. C., with whom Gilbert Hahn, Jr., and Sola-man G. Lippman, Washington, D. C., were on the brief, for appellant.
    Harold A. Mouzon, Jr., Atty., U. S. Dept, of Labor, with whom Morton Hollander, Atty., Dept, of Justice, was on the brief for appellee, Brennan. John V. Long, Washington, D. C., entered an appearance for appellees Daniel George and Phillip A. Feaster.
    Before ROBB and WILKEY, Circuit Judges, and VAN PELT, United States Senior District Judge for the District of Nebraska.

       Sitting by designation pursuant to 28 U.S.C. § 294(d).

   VAN PELT, Senior District Judge:

Local Union No. 639, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Inc. (hereinafter the Union) appeals from an order of the district court granting summary judgment to the Secretary of Labor (hereinafter the Secretary) and two members of the Union, Daniel George and Phillip A. Feaster. The action was originally brought by the Secretary against the Union under the Labor-Management Reporting and Disclosure Act of 1959, as amended (hereinafter the Act) to set aside an election of officers held by the Union on January 23, 1972. The complaint alleged that the Union violated § 401(e) of the Act by failing to mail notice of the election to each member of the Union at his last known home address at least fifteen days prior to the election and by imposing an unlawful meeting attendance requirement on candidates for office. After the action was filed, two members of the Union who had complained of the conduct of the election to the Secretary were allowed to intervene in the suit.

On June 8, 1973, the intervenors moved for a summary judgment under Rule 56 of the Federal Rules of Civil Procedure. On June 26, the Union noticed the deposition of the Secretary or his designee. On July 10, the Secretary filed a motion for summary judgment on the same grounds as the intervenors. On July 13, the Secretary filed a motion for a protective order under Rule 26(c) of the Federal Rules of Civil Procedure which was granted on July 17 despite the objections of the Union. On August 17, after an extensive oral argument the district court granted the motions for summary judgment saying:

“The Court finds that there is no dispute of the fact that out of 6,487 members of the union, notice of the ’72 election was mailed only at a maximum to 2,700 of them; that this is a clear violation of 29 U.S.C. § 481(e); that under the circumstances where 58 percent of the membership did not receive the statutory notice and where only 23 percent of the membership voted, the Court is entitled to conclude irrebutably that the election was effected thereby.
“I shall, therefore, grant summary judgment to the plaintiff, declare the election null and void, order a new election, order costs for the plaintiff, and deny the defendant’s motion to dismiss.”

On August 21, the district court entered an order directing a new election under the supervision of the Secretary and further directing that no meeting attendance requirement be imposed on the right of members to be candidates.

The issues on appeal are: 1) Is it permissible to grant a summary judgment under § 402(c) of the Act; 2) If a summary judgment is permissible under the Act, was it proper in the factual context of this ease; 3) Was the directive of the district judge prohibiting the application of the meeting attendance requirement proper; 4) Was the protective order proper? For the reasons given below, we affirm the order of the district court.

I. THE PROPRIETY OF A SUMMARY JUDGMENT UNDER § 402(c).

Section 402(e) of the Act grants the Secretary the authority to bring a civil action against a labor organization if, after investigating a complaint by a member of that organization who has exhausted his internal remedies, he finds that there is probable cause to believe that the organization has violated any of the election procedures specified in § 401. Section 402 also provides that:

“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, if any, to be void and direct the conduct of a new election under [the] supervision of the Secretary and, so far as lawful and practicable, in conformity with the constitution and bylaws of the labor organization.” (Emphasis added)

The Union argues that the statute specifically requires a trial and that summary judgment is improper when the crucial facts are contested. In addition, it argues that the clear import of Wirtz v. Hotel, Motel & Club Employees Union, Local 6, 391 U.S. 492, 88 S.Ct. 1743, 20 L.Ed.2d 763 (1968), (hereinafter Wirtz v. Local 6) is that § 402 requires a trial on the merits in every case.

In only one case, Hodgson v. District 5, U.M.W. 68 L.C. fí 12,867 (W.D.Pa. 1972), has a court read the language of § 402 literally and held that under no circumstances could the Secretary be granted a summary judgment in an action brought under that section. In that case, the court, in denying the Secretary’s motion for summary judgment, quoted § 402(c) and stated, “We interpret the foregoing language in the Act to require a trial before we can decide whether or not to grant relief requested in the complaint.” (Emphasis in original) The court, reasoning that, “Congress must have had some reason for incorporating this provision in the Act,” held that § 402(c) requires a trial in all actions brought under it.

Several other courts, however, have granted summary judgments to the Secretary in action brought under § 402. In Hodgson v. District 6, U.M.W., 474 F.2d 940 (6th Cir. 1972), the court, in reversing the district court which had granted summary judgment to the union, held that the complainant had exhausted his internal union remedies and that the rule which had barred his candidacy was an unreasonable rule in violation of § 401(e) and granted summary judgment to the Secretary. In Schultz v. Independent Employees Union, 62 L. C. |f 10,869 (E.D.Wis.1970), the court granted judgment to the Secretary after holding a hearing. The facts in this case were very similar to those in the instant ease and involved the failure to mail notice of an election to the members of the union. In addition, in Wirtz v. Local 1622, Carpenters, 285 F.Supp. 455 (N.D.Cal.1968), the court granted judgment to the Secretary on the basis of stipulated facts, without holding a trial, on a complaint which alleged violations including the failure to mail notice of an election.

The Union places heavy reliance on Hodgson v. Local 734, Teamsters, 336 F.Supp. 1243 (N.D.Ill.1972), in which the court refused to grant summary judgment to the union. However, this case does not support the Union’s position. In this case the main issue was whether the complainants had exhausted their internal union remedies with respect to several of the alleged violations. Factual issues arose as to whether notice of several of the violations had been adequate and whether certain of the alleged irregularities were, in fact, violations of the Act. It is clear that the court’s refusal to grant summary judgment was based on the failure to meet the requirements of Rule 56, since there were still genuine issues of material fact which had to be resolved and not on the basis that the language of § 402(c) as to “a trial upon the merits” precludes granting summary judgment.

The union also argues that the clear import of Wirtz v. Local 6, 391 U.S. 492, 88 S.Ct. 1743, 20 L.Ed.2d 763 (1968), is to require a trial in every action under § 402. However, a careful reading of the case shows that its main effect was to lessen the burden on the Secretary to prove that a violation of § 401 may have affected the outcome of an election, by holding that any proved violation of § 401 creates a prima facie case that the outcome may have been affected. The Court was not directly faced with the problem presented in this case and its opinion simply does not support the contention that § 402 requires a trial in every ease.

With respect to interpreting labor legislation the Supreme Court has said:

“We have cautioned against a literal reading of congressional labor legislation ; such legislation is often the product of conflict and compromise between strongly held and opposed views, and its proper construction frequently requires consideration of its wording against the background of its legislative history and in light of the general objectives Congress sought to achieve .... The LMRDA is no exception.” Wirtz v. Local 153, Glass Blowers Association, 389 U.S. 463, 468, 88 S.Ct. 643, 646, 19 L.Ed.2d 705 (1968).

Thus, the language in the Act referring to, “a trial upon the merits,” must be read in light of the overall scheme of the Act. There is no indication that the Congress in using this language intended to make inapplicable to such actions Rule 56 of the Federal Rules of Civil Procedure providing for summary judgment. In fact the contrary would appear from the fact that Rule 81 of the Federal Rules of Civil Procedure relating to applicability makes no exception of the Act under which this case was brought. In addition, there is an apparent congressional concern that there be an early resolution of allegations regarding disputed elections evidenced by the short deadline provided for the protestant to appeal to the Secretary (one calendar month after he has exhausted his internal remedies), and the refusal to allow a stay of the district court’s order pending appeal. It is equally clear that Congress was concerned with the standard of proof required before an election could be set aside and insuring that the union would receive an independent and detached judgment on the Secretary’s allegations. These concerns were satisfied in the statute by requiring that the order for a new election come only from an Article III court and by requiring that the Secretary prove his allegations by a preponderance of the evidence.

If there are no material facts which are contested it would be sheer folly to require the expense and delay of a trial when other methods of resolution are available. Finally, Rule 56 itself has strict requirements which must be satisfied before summary judgment can be granted. Thus, we hold that there is nothing inherent in § 402 which requires a trial in every ease.

We next consider whether this was a proper case for summary judgment.

II. THE PROPRIETY OF A SUMMARY JUDGMENT IN THIS CASE.

Rule 56(c) of the Federal Rules of Civil Procedure provides in part:

“The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.”

These standards, however, cannot be analyzed in a vacuum, but can only be understood in the context of the statute under which the action was brought since the statute determines (a) what the material facts are and (b) when a party is entitled to judgment as a matter of law.

A. Section 401(e) of the Act requires that: “Not less than fifteen days prior to the election notice thereof shall be mailed to each member at his last known home address.” An earlier version of the bill provided, “that notice of a union election must be given in a manner which is reasonably calculated to inform substantially all of the members eligible to vote of the time and manner of seeking nomination and of the place and date of the election.” However, this language was changed before enactment to the current language specifically requiring mailed notice. It is clear that Congress intended at a minimum that notice be mailed to each member and that other means, however reasonable, were insufficient.

B. Section 402 provides that the Secretary must prove by a preponderance of the evidence that the result of the election “may have been affected” by the violation. In Wirtz v. Local 1622, Carpenters, 285 F.Supp. 455 (N.D.Cal.1968), the court held that, under this standard, “The Secretary is only required to prove ‘the existence of a reasonable probability that the election may have been “affected” by an alleged violation of. § 481(e) [§ 401(e)].’” Id. at 464. In Wirtz v. Local 6, 391 U.S. 492, 88 S.Ct. 1743, 20 L.Ed.2d 763 (1968), the Supreme Court held that a proved violation of § 401 created a prima facie case that the election may have been affected.

The uneontested facts in this case as found by the district court are: 1) there are 6,487 members in the Union; 2) notice was mailed at a maximum to only 2,700 members (42 percent of the membership); 3) only 1,456 members voted in the election (23 percent of the membership). The Union contends that genuine issues of material fact are presented by these claims: 1) the Union had a reasonable excuse for failing to have all the home addresses of its members and this was the cause of its failure to mail notices; 2) the Union gave notice by personal service to every member who did not receive mailed notice at home; 3) the number of members who received no notice (none) was smaller than the margin of winning candidates (400). It is clear from the uncontested facts that the Union’s failure to mail notices was a violation of § 401(e) and that a prima facie case was established for setting aside the election. The only question is whether the additional facts relied upon by the Union are material and whether they rebut the presumption that the election was affected.

In Wirtz v. Local 1622, Carpenters, 285 F.Supp. 455 (N.D.Cal.1968), no notice of the contested election was mailed to 382 members of the union. Only 682 members voted out of 2,700 members who were eligible. The court felt that whether the failure to mail notices was excusable depended on whether the union, in the exercise of reasonable care, could have insured all members would have received notice. The union itself maintained no mailing lists of its membership and all of its notices and communications were made through a weekly union newspaper. The evidence showed that the union for several preceding months had been billed for several hundred less newspapers than it had eligible members. Under these circumstances the court felt that the union was put on notice that not all of its members had been receiving notices and that the failure to insure that proper notice was given to all members was not accidental. Consequently, the court found the union had violated the Act. The court then held:

“It is entirely reasonable to conclude that if, as required by law, each member had been sent an adequate notice by mail, the voter turn-out on the day of the election would have been substantially higher. With more voters casting their ballots, the election results necessarily would have been affected.” Id. at 464.

Similarly, in Wirtz v. Local 169, Hod Carriers, 246 F.Supp. 741 (D.Nev.1965), the court set aside an election when out of 512 eligible members 30 had no notice of the election and only 161 members voted. The court held:

“[T]he failure to send election notices to thirty members was the consequence of gross neglect in the maintenance of proper records and cannot be justified as an accidental mistake occurring in the exercise of due care.” Id. at 752.

In Schultz v. Independent Employees Union, 62 L.C. ff 10,869 (E.D.Wis. 1960), the union did not mail any notices to its members, but did post notices on bulletin boards throughout the plant. The court held that the posting of a notice of election on bulletin boards could not be substituted for the specific requirement in § 401(e) for mailing notice and ordered a new election.

These cases clearly show that the facts set forth by the Union, even if true, were not material facts which would prevent the granting of summary judgment. As the Supreme Court said in Wirtz v. Local 6, 391 U.S. 492, 508, 88 S.Ct. 1743, 1752, 20 L.Ed.2d 763 (1968): “None of the factors relied on is tangible evidence against the reasonable possibility that the wholesale [failure to mail notice] did affect the outcome.” The uncontradicted evidence .showing that the Union had violated § 401(e) created a prima facie case that the election may have been affected. Since the Union was unable to contradict this by raising any factual dispute as to a material fact, the district court correctly held that the Secretary was entitled to a summary judmgent.

III. THE MEETING ATTENDANCE REQUIREMENT.

The Union also appeals from that portion of the district court’s order which directed that the Union could not enforce any meeting attendance requirement in the new election. Prior to the contested election, Article VI, § 3 of the Union’s bylaws provided that members “attend at least four (4) regular meetings of this local union in each of two (2) consecutive years prior to the nominating meeting.” On the basis of this bylaw, eight nominees were ruled ineligible for office as they had not attended eight meetings within the past two years. During this period the Union had held only fourteen meetings. This ruling was appealed to the International Union and its President ruled that the bylaw was inconsistent with the International constitution in that it required attendance at more than 50 percent of the meetings held by the Union. The International President instructed the Union not to apply its bylaws in the election and to hold a new nominating meeting. At the new nominating meeting seven members were again disqualified on the basis of the meeting attendance requirement. Later the International President reversed this with respect to four of the members. Finally, the International told the Union it could apply its bylaw insofar as it complied with the International constitution, i. e., it could require attendance at seven of the fourteen meetings.

At the hearing on the motion for summary judgment a factual question arose whether the protestants had exhausted their internal union remedies regarding the meeting attendance requirement. Consequently, the district court could not use the meeting attendance requirement as a ground for granting summary judgment since there was a factual dispute whether it had jurisdiction to set aside the election on this ground.

In Hodgson v. Local 6799, United Steelworkers, 403 U.S. 333, 91 S.Ct. 1841, 29 L.Ed.2d 510 (1971), the union member had filed an internal protest concerning election irregularities, but did not challenge a meeting attendance rule regarding eligibility for office. After an adverse ruling from the union on his complaint the member complained to the Secretary. In his action the Secretary attempted to have the election set aside on this ground as well as several others which had been raised internally. The Supreme Court held that the failure of the member to exhaust his internal remedies barred the Secretary from litigating his claim. In a dissent Justice White stated:

“[I]f the Secretary finds an invalid bylaw that purports to govern a new election that has been validly ordered on a claim that has been exhausted, as in this case, the Secretary appears to have express grounds in the Act, independent of the complaint-exhaustion requirements, to insist that the new election be conducted in accordance with the law and to insist that a court adjudicate the matter if the union stands by its bylaw provision.” Id. at 344, 91 S.Ct. at 1848.

In Trbovich v. United Mine Workers, 404 U.S. 528, 92 S.Ct. 630, 30 L.Ed.2d 686 (1972), the issue was whether the complaining union member could intervene in the action brought by the Secretary. In deciding that he could, the Court was faced with defining the scope of that intervention. The Court determined that the intervenor could present evidence, but declined to permit him to assert additional grounds for setting aside the election. As a footnote to this last holding the Court said:

“This limitation, however, applies only to the claimed grounds for setting aside the old election, and not to the proposed terms of any new one that may be ordered. For if the court finds merit in the Secretary’s complaint and sets the election aside, then the statute requires the court to direct a new election in conformity with the constitution and bylaws of the union and the requirements of Title IV. Since the court is not limited in this regard to considerations of remedies proposed by the Secretary, there is no reason to prevent the intervenors from assisting in fashioning a suitable remedial order. Cf. Hodgson v. Steelworkers, 403 U.S. 333, 344, 91 S. Ct. 1841, 29 L.Ed.2d 510 (White J. dissenting).” Id. 404 U.S. at 537, 92 S.Ct. at 636.

The Court has clearly distinguished between using a violation as a ground to set aside an election and using a violation with respect to setting the ground rules for a new election which has been ordered.

The evidence showed that as originally applied the Union’s bylaw violated the International constitution. The evidence also showed that the bylaw effectively disqualified 97 percent of the members from running for office. In Wirtz v. Local 6, 391 U.S. 492, 88 S.Ct. 1743, 20 L.Ed.2d 763 (1968), the Supreme Court held that a bylaw which limited eligibility for major elective office to members who had previously held office and thereby rendered 93 percent of the membership ineligible was not a reasonable qualification within the meaning of § 401(e). Similarly, in Brennan v. Local 3911, Steelworkers, 372 F.Supp. 961 (N.D.Ill.1973), the court found that a meeting attendance requirement that excluded 94.7 percent of the membership from running for office was invalid. Contra, Brennan v. Local 5724, 489 F.2d 884 (6th Cir. 1974).

In light of the foregoing facts and the statutory command that, “the court shall . . . direct the conduct of a new election ... so far as lawful and practicable, in conformity with the constitution and bylaws of the labor organization,” we hold that the district court did not err in ruling that the Union, having an invalid bylaw as originally applied, could not retroactively adopt and apply any meeting attendance requirement in the new election.

IV. THE VALIDITY OF THE PROTECTIVE ORDER.

The Union also appeals from the protective order granted by the district court claiming that it was denied due process since it was prevented from continuing its discovery against the Secretary until five days after the ruling on the summary judgment motion. In view of our decision on the merits it is difficult to see how the Union was prejudiced by this ruling. Trial courts, as indicated by the Advisory Committee’s Notes to Federal Rule of Civil Procedure 26(b), have broad powers to regulate or prevent discovery and such powers have always been freely exercised. See also, Simons-Eastern Company v. United States, 55 F.R.D. 88 (N.D.Ga.1972). The protective order was well within the discretion of the district court and as the Union was in no way prejudiced we will not disturb this order on appeal.

Judgment affirmed.

ROBB, Circuit Judge,

dissenting:

I agree that summary judgment may be granted in an action brought by the Secretary pursuant to section 402(c) of the Act (29 U.S.C. § 482(e)); but I think summary judgment was not appropriate in this case.

The district judge based his order upon a violation of section 401(e) of the Act (29 U.S.C. § 481(e)). Although at the hearing on the motion for summary judgment he observed “there isn’t any question about the fact that there are many disputed issues of fact in this case” (Tr. 38) he found that the Union had mailed notices of the 1972 election to only 2,700 of its 6,487 members, and in his order he concluded “as a matter of law that this failure to mail notice to 58% of the members of Local Union 639 justifies an irrebuttable conclusion that this violation of the statute may have affected the outcome of the election.”

In my judgment the district judge was mistaken in concluding that the violation of the statute produced or justified an “irrebuttable conclusion” that the outcome of the election may have been affected; and I think he was wrong in granting summary judgment upon that mistaken premise.

A proved violation of section 401 establishes a prima facie case that the violation “may have affected” the outcome of an election; but this prima facie case “may of course be met by evidence which supports a finding that the violation did not affect the result.” Wirtz v. Hotel, Motel & Club Employees Union, Local 6, 391 U.S. 492, 506, 507, 88 S.Ct. 1743, 1752, 20 L.Ed.2d 763 (1968).

By affidavits the Union represented that over the years it had experienced great difficulty in obtaining the home addresses of members, despite repeated and persistent efforts to secure them. According to the Union many members maintained that their home addresses were none of the Union’s business and refused to disclose them. Also, said the Union, many members were transients, having no fixed addresses; and other members gave only incomplete addresses. The good faith attempts of the Union to secure addresses were recounted. The Union further represented, by affidavits of more than eighty shop stewards, that substantially every member of the Union received actual written notice of the election. According to the shop stewards they personally distributed official notices of the election to the members of Local 639 at their places of employment. The record disclosed also that of the members voting at the election 83% had received no mailed notice, but had received notice by personal service; that of those who received mailed notices only 10% voted, but 29% of those receiving the notices by personal service voted. The percentage of members voting was the highest in the history of the Union.

Without attempting to forecast the result of a trial I think the Union’s affidavits at least raised a genuine issue of fact as to the possible effect of the statutory violation on the outcome of the election. Summary judgment was therefore inappropriate.

Also, I do not find adequate support in the record for the District Court’s order forbidding the Union to enforce any meeting attendance requirements in the new election. Under section 401(e) of the Act (29 U.S.C. § 481(e)) the Union was entitled to impose reasonable meeting attendance requirements upon candidates. See Brennan v. Local 5724, United Steelworkers of America, 489 F.2d 884 (6th Cir. 1973). The court made no finding that justified the order depriving the Union of this right.

I respectfully dissent.

      . 29 U.S.C. § 481(e) (1970).

      . The complaint also alleged other violations of § 401 which are not a part of this appeal.

      . Section 402 of the Act (29 U.S.C. § 482), which sets forth the enforcement procedures regarding a contested election, states that the Secretary may file an action to set aside an election only after receiving a complaint by a union member who has exhausted his internal union remedies concerning the conduct of the election.

      . Since there was a factual dispute whether George and Peaster had exhausted their internal union remedies as required by § 402(a), regarding the meeting attendance requirement, the district judge made no finding as to whether this requirement was a violation of § 401(e).

      . 29 U.S.C. § 482(e) (1970).

      . In Hodgson the matters upon which the union sought summary judgment, contending that they either were not violations of the Act or that internal remedies had not been exhausted due to inadequate notice, concerned : 1) recordation and challenge procedures ; 2) retention of ballots; 3) the failure of the protestants to furnish any evidence to the union appellate bodies; 4) claims regarding ineligible voters. With respect to each of these matters the court found: 1) the recordation and challenge procedures presented “a matter of proof on which we do not possess sufficient information to grant judgment.” 336 F.Supp. at 1249; 2) the retention of ballots presented a question of internal exhaustion and the court “would need to be cognizant of the factual relationship of the December 17 letter to all other proceedings involved herein before a ruling may be rendered.” Id. at 1250; 3) the failure to furnish evidence was a question of “good faith on the part of the protestants in their exhaustion of union remedies [which] is a factual matter.” Id. at 1253-1254; 4) as for the ineligible voters “It is a factual matter” Id. at 1255. Thus it is clear that as factual issues remained summary judgment was inappropriate.

      . In that same opinion and as a footnote to the previous passage, the Court said :
      “Archibald Cox, who actively participated in shaping much of the LMRDA, has remarked :
      “The legislation contains more than its share of problems for judicial interpretation because much of the bill was written on the floor of the Senate or House of Representatives and because many sec-
      tions contain calculated ambiguities or political compromises essential to secure a majority. Consequently, in resolving them the courts would be well advised to seek out the underlying rationale without placing great emphasis upon close construction of the words.’ Cox, Internal Affairs of Labor Unions under the Labor Reform Act of 1959, 58 Mich.L.Rev. 819, 852 (1960).” 389 U.S. at 468, 88 S.Ct. at 646.

      . Senator Dodd, one of the sponsors of the amendment, stated on the Senate floor:
      “By means of this amendment, I am trying to make certain that every union member will receive a written notice at least 15 days before an election is to be held. . . . So I think it is very little to require that a union mail a postal card notice 15 days before an election of officers is to be held, to remind the membership and to notify the membership that the election is to be held. That is not asking very much.” Congressional Record 15189, Senate, April 23, 1959.

      . Article II, Section 4(a) (1) of the International Constitution provides in pertinent part:
      “A Local Union in its Bylaws may require that a member, to be eligible for election to any office in the Local Union, must have attended a minimum number of the regular or divisional meetings of the Local Union, but not to exceed fifty percent (50%) during the twenty-four (24) consecutive months prior to nomination.”

      . The Union’s records of attendance for the fourteen meetings held in the twenty-four month period prior to the nominations showed that the number in attendance at each meeting varied between 37 (May, 1970) and 134 (October, 1970) and averaged 64. At the time of the election there were 6,487 members in the Union eligible to vote.


author: PER CURIAM:

text:
    Martin O. WEISBROD, Appellant, v. James T. LYNN, Secretary of the Department of Housing and Urban Development, et al.
    No. 73-1146.
    United States Court of Appeals, District of Columbia Circuit.
    Argued Jan. 23, 1974.
    Decided March 11, 1974.
    Milton V. Freeman, Washington, D. C., with whom James A. Dobkin, G. Philip Nowak and Steven P. Lockman, Washington, D. C., were on the brief, for appellant.
    Edwin E. Huddleson, III, Atty., Dept, of Justice, for appellee. Harold H. Titus, Jr., U. S. Atty. at the time the brief was filed, Robert E. Kopp and Joseph B. Scott, Attys., Dept, of Justice, were on the brief for appellee.
    Before McGOWAN, ROBINSON and ROBB, Circuit Judges.
   PER CURIAM:

Appellant, a long time federal employee who was mandatorily retired at age 70 under the requirements of 5 U.S. C. § 8335, brought suit in the District Court seeking to enjoin the enforcement of that statute on the ground of its alleged unconstitutionality. He moved the District Court to convene a three-judge court under 28 U.S.C. §§ 2281 and 2284. The District Court denied that motion (and simultaneously dismissed the complaint) because it thought that the complaint raised no substantial constitutional issue; and the only question before us on this appeal is the correctness of that determination.

The Supreme Court has made abundantly clear that a three-judge district court must be convened if the constitutional issues raised have a substantiality which takes them outside such characterizations as “obviously without merit,” “wholly insubstantial, [or] legally speaking nonexistent,” or unless “unsoundness so clearly results from previous decisions of this Court as to foreclose the subject.” See California Water Service Co. v. City of Redding, 304 U.S. 252, 255, 58 S.Ct. 865, 867, 82 L.Ed. 1323 (1938), and Bailey v. Patterson, 369 U. S. 31, 33, 82 S.Ct. 549, 7 L.Ed.2d 512 (1962). In appellant’s ease, Cleveland Board of Education v. LaFleur, 414 U.S. 632, 657, 94 S.Ct. 791, 39 L.Ed.2d 52 (Rehnquist, J., dissenting) (decided January 21, 1974) — a decision which was not available to the District Court at the time of its ruling — is ample indication that appellant’s challenge in this instance presents a constitutional issue of sufficient substance as to warrant consideration by a three-judge court.

The District Court’s orders (1) denying appellant’s motion to convene a three-judge court and (2) granting ap-pellee’s motion to dismiss with prejudice, are reversed; and the case is remanded to the District Court with instructions to convene a three-judge court.

      . At the time of appellant’s forced retirement, he was continued in governmental service as a re-employed annuitant in the same job he had been performing, with the same total number of dollars being received by him each month from the Government. Since, contrarily, the complaint appeared to have alleged only reduction of income as appellant’s injury, we questioned during oral argument whether appellant’s continuing employment resulted in a case or controversy, and we asked the parties to submit supplemental memoranda on that issue. In the light of the representations made therein, we do not pursue the matter further.
      In addition to the loss of his job tenure and the resulting loss of procedural protections accompanying that loss, which by themselves might only anticipate a possible case or controversy in the future, appellant identifies in his supplemental memorandum a number of specific immediate injuries, the existence of which are essentially unchallenged by the Government in its reply. First, although the “re-employed annuitant” salary provides the same compensation as that attained on the date of retirement, appellant no longer qualifies for the periodic pay increases within his GS level. Second, since pension levels are a function of the three highest consecutive years of salary, appellant’s frozen salary also freezes his pension. Lastly, appellant’s life insurance rights are also calculated by reference to salary, and appellant asserts that he has been deprived of $2,000.00 of coverage by virtue of his change in status.


text:
    UNITED STATES of America v. Edward L. INGE, Jr., Appellant.
    No. 73-1311.
    United States Court of Appeals, District of Columbia Circuit.
    March 14, 1974.

      Elliott C. Lichtman, Washington, D. C. (appointed by this court) was on the brief for appellant.
    Harold H. Titus, Jr., U. S. Atty., at the time the brief was filed, John A. Terry and Barry W. Levine, Asst. U. S. Attys., were on the brief, for appellee. Regina C. McGranery, Asst. U. S. Atty., entered an appearance for appellee.
    Before McGOWAN and MacKINNON, Circuit Judges, and CHRISTENSEN United States Senior District Judge for the District of Utah.

       Sitting by designation pursuant to 28 U.S.C. § 294(d).

   PER CURIAM:

Appellant attacks the sufficiency of the evidence to support his convictions of armed robbery (D.C.Code §§ 22-2901, 22-3202) and assault with a dangerous weapon (D.C.Code § 22-502). It is unquestioned that the offenses were committed as charged by three robbers and that appellant was identified by the victim, Behm, as being the number three robber. It is the evidence on identification that appellant claims to be insufficient. On this issue the court charged the jury in a most complete manner, the instruction was not objected to and we approve it. Viewing the evidence in the light most favorable to the jury’s verdict, we find the evidence, set forth below, to be sufficient and we affirm the judgment of conviction of armed robbery but vacate the judgment with respect to assault with a dangerous weapon, it being a lesser included offense of the principal offense. United States v. Johnson, 155 U.S.App.D.C. 28, 475 F.2d 1297 (1973); United States v. Anderson, 160 U.S.App.D.C.-, 490 F.2d 785 (1974).

Behm operated a coin-operated laundromat and dry cleaning establishment and the robbery occurred at that place of business as he was closing up for the night. Two robbers without masks entered first and then came the third robber with a stocking mask cut from a woman’s stocking. Behm testified that he recognized the third robber as soon as he “first saw him” as being a customer of his. The room was well lighted and he had an opportunity to observe him for about thirty seconds. He recognized him from his profile, his manner of walking, his posture, his height, weight and hair style (Tr. 13, 16, 17, 18, 19, 22). From these physical features he “had no doubt about who it was” (Tr. 17). According to Behm’s testimony he had seen appellant many times previously, he came into the laundromat regularly with dry cleaning (Tr. 16) and he had occasion to remember him as one who frequently complained about the work (Tr. 19). Behm also testified that he had heard appellant’s voice many times and said at the time of the robbery, “I believe I have heard his voice before” (Tr. 17). With commendable candor, however, he said he “couldn’t be positive on voice” (Tr. 26).

With all this background Behm could not remember appellant’s name, but when he described the man to his wife, who helped in the laundromat, she suggested that Inge met the description. This name was supplied to the police and in due time Behm was shown a number of photographs from which he selected one of Inge as being the number three robber. He made a similar selection of Inge’s photograph in court.

Behm’s testimony was also buttressed by the fact that, according to his testimony, Inge had been in the laundromat two days before at about closing time and he had then been accompanied by the other two robbers.

Another fact of some probative value is that a wallet stolen in the robbery was found wrapped in a stocking mask on the route between the laundromat and Inge’s home.

Under the circumstances cited above the question of identity was for the jury on proper instructions.

Judgment accordingly.

      . I instruct you now on the law of identification. One of the most important issues in this case is the identification of Defendant as the perpetrator of the crime.
      The Government has the burden of proving identity beyond a reasonable doubt. It is not essential that the witness himself be free from doubt as to the correctness of his statement.
      However, you the jury must be satisfied beyond a reasonable doubt of the accuracy of the identification of the Defendant before you may convict him. If you are not convinced beyond a reasonable doubt that the Defendant was the person who committed the crimes, you must find the Defendant not guilty.
      Identification testimony is an expression of belief or impression by the witness. Its value depends upon the opportunity the witness had to observe the offender at the time of the offenses and to make reliable identification later.
      In appraising the identification testimony of a witness, you should consider the following:
      First, are you convinced that the witness had the capacity and an adequate opportunity to observe the offender.
      Whether the witness had an adequate opportunity to observe the offender at the time of the offenses will be affected by such matters as how long or short a time is available, how far or close the witness was, how good were the lighting conditions, whether the witness had had occasions to see or know the person in the past.
      In general, a witness bases any identification he makes on his perception and the use of his senses. Usually a witness identifies an offender by the sense of sight, but this is not necessarily so. He may use other senses, such a[s] hearing, feeling and so on.
      Secondly, are you satisfied the identification made by the witness subsequent to the offenses is the product of his own recollection?
      You may take into account both the strength of the identification and the circumstances under which the identification was made.
      If the identification by the witness may have been influenced by the circumstances under which the Defendant was presented to him for identification, you should scrutinize the identification with great care.
      You may also consider the length of time that elapsed between the occurrence of the crimes and the next opportunity of the witness to see the Defendant as a factor bearing upon the reliability of the identification.
      Four, finally, you must consider the credibility of each identification witness in the same way as any other witness.
      Consider whether he is truthful, consider whether he had the capacity and opportunity to make a reliable observation of the matter covered in his testimony.
      I again emphasize the burden of proof on the Prosecutor extends to every element of the crimes charged and this specifically in-eludes the burden of proving beyond a reasonable doubt the identity of the Defendant as the perpetrator of the crimes with which he stands charged.
      If after examining the testimony you have a reasonable doubt as to the accuracy of the identification, you must find the Defendant not guilty. (Tr. 117-120.)