WIRTZ v. LABORERS' UNION

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Argument of Louis F. Claiborne

Chief Justice Earl Warren: -- the Union of North America.

Mr. Claiborne, have you completed your argument?

Mr. Louis F. Claiborne: I will reserve the balance of my time for rebuttal.

Chief Justice Earl Warren: You may, Mr. Riemer?

Argument of Mortimer Riemer

Mr. Mortimer Riemer: Mr. Chief Justice, may it please the Court and Mr. Claiborne.

This case Your Honors involves election under the Labor Management Reporting and Disclosure Act in which Cecil Dial (ph) the union’s incumbent business representative was defeated in his campaign for reelection by Andrew Jackson, his rank and file opponent.

Dial protested of his defeat only to the International Union.

His protest was denied.

He complained again to the Secretary about his defeat only and eventually a supervised election was directed by the district court.

Simultaneously were the regular 1966 scheduled union election and Dial was again defeated.

The Secretary now seeks to set aside the 1963 election of officers, which was never protested or challenged and those terms have long expired and to expunge the untainted 1966 election, which was never challenged.

We submit that the statute does not warrant what has been referred to as laboratory election or the remedial intervention of the Secretary under these circumstances.

Justice Potter Stewart: What would be the result if we agreed with the Secretary?

We can't quite turn the clock back to 1963.

There has been another election in 1966 in terms of those people who are drawing to a close or at least beginning to, are they 3-year terms?

Mr. Mortimer Riemer: They are triennial elections Your Honor.

The next scheduled election would be in 1969.

If you were to agree with the Secretary, another election under the Secretary's supervision would be conducted.

The individuals now in office would be presumably, if defeated, removed from office and other individuals would come in.

Justice Abe Fortas: Are these individuals office holders the same persons--

Mr. Mortimer Riemer: There was some change Your Honor.

Justice Abe Fortas: How much of a change?

Mr. Mortimer Riemer: There was a change in the trustees.

There was a change in the President.

The 1966 election elected a new President.

Of course the business representative is now different.

Justice Abe Fortas: Does the record show that?

Mr. Mortimer Riemer: Yes sir.

The union held its regular triennial election in June of 1963.

All nine officers except that of business representative were filled.

Here a tie resulted between Dial, the incumbent who had been in office for sometime and Andrew Jackson, his rank and file opponent.

This election was not challenged, but because of the tie, it became necessary to conduct a runoff election in July of 1963.

This runoff election like the predecessor election in June was supervised by a secretly elected rank and file committee of election judges.

Dial lost this election, the runoff election to Jackson by some 19 votes.

He filed a timely protest only about his loss of the job.

He was not concerned about any other officer, but only about himself and he intended only to protest his own defeat.

Dial was accorded a full hearing by the International, a complete hearing, on notice.

He was present.

The union representatives were present.

A full inquiry was made and it was made clear to the International hearing panel that Dial was protesting only his own defeat.

He was not concerned about anything else.

Because Dial was unable to substantiate the proof that enough ineligible members voted to affect the election result, the International denied his protest.

He then made a timely appeal to the Secretary and the Secretary conducted an investigation.

This investigation or the results of the investigation were made known to the International Union.

The Secretary claimed that he had in the investigation uncovered irregularities in the June election as well as in the runoff election and was therefore asking the International Union to set aside both the June regular election and the July runoff election.

The International Union questioned the Secretary's jurisdiction to set aside an election which had never been protested and which had not been considered by the International Union in its hearing's panel, but did say to the Secretary that if proof of irregularities in the runoff could be further substantiated, it would reopen its record and again consider the runoff election.

Within a week or ten days after that, the Secretary filed a suit in the district court of northern district of Ohio.

Now two questions it seems to me Your Honors are presented in this posture.

Did the intervening election in 1966, held in conjunction or connection with the supervised election for business representative moot this case and in any event, we submit it may have been further mooted because the International in October 1966 after the appeal had been filed in the Court of Appeals amended its constitution to prevent in the future any occurrence of this nature.

But if the Court should hold the election as not moot, then there is a further issue before perhaps and that is the authority of the Secretary to include violations not complained of by any union member and never considered by the union and whether the Secretary has a free-wheeling investigation upon which he can uncover any violation never complained of by a member or never considered by the union and file a complaint based upon that.

Now these issues arise because filing -- following the filing of the secretaries broadened complaint, a motion was made in the district court to dismiss all allegations of the complaint pertaining to the June in 1963 election.

And the district court granted that motion claiming that the member had never exhausted any remedies concerning the June election.

No protest concerning the June election had been made by any member to the International.

The International had never considered it and under the language of the statute there was no jurisdiction in the court to entertain a complaint based upon those allegations.

Now almost two years later and I think Mr. Claiborne yesterday perhaps inadvertently created the inference that this happened right after the district court had come down with its motion to dismiss, but almost two years later in April 1966, the district court Judge Battisti granted the government's motion for summary judgment with respect to the remaining portions of the complaint dealing only with the runoff election concerning which there had been a protest, concerning which there had been a hearing and concerning which the Secretary had under the statute conducted his investigation.

Summary judgment was granted with respect to that.

The district court Judge Battisti, in his decision of April 1966 recognizing the imminence of the oncoming June 1966 election and the practical problems that would be raised, directed that the supervised election for business representative be conducted at the same time as the regular election.

And so representatives of the Department of Labor and union representatives met and laid out the details of the supervised election.

Now this was no casual meeting Your Honors.

This was a detailed, deliberate, considered arrangement of all of the details that go into a union election even down to and including the color of the ballot that would be used.

So on July 11, 1966 the government got its supervised election, Department of Labor representatives were present, the other officers were filled at the same time --

Justice William J. Brennan: Was there a separate ballot?

Mr. Mortimer Riemer: Yes sir, there was a separate ballot used.

Justice William J. Brennan: A different colored ballot.

Mr. Mortimer Riemer: A different colored ballot was used for the supervised election for business representatives.

Justice William J. Brennan: Different ballot boxes?

Mr. Mortimer Riemer: Yes sir, yes Your Honor.

Justice William J. Brennan: Different sections of the room or how?

Mr. Mortimer Riemer: I don't know Your Honor the answer to that, but there were separate ballot boxes, a separate --

Justice William J. Brennan: A member comes in to vote in both elections does he have to go one table for one and to another table for another?

Mr. Mortimer Riemer: Yes Your Honor, he did.

Now Dial again lost this election, but the day before the election on July 10, one day before this election, the Secretary appealed, Court of Appeals from both Judge Connell's order of July 1964 and Judge Battisti's order of April 1966, the union moved to dismiss, and the Court of Appeals on the union's motion agreed with it that the supervening event, the supervening event in 1966, the regular election occurring simultaneously with a supervised election rendered the Secretary's case moot.

I may say at this time in answer to a question of Mr. Justice White raised yesterday, there is not an iota of evidence, not a scintilla of an inference that there was anything wrong with the regular election in 1966.

It's clean, absolutely clean and I think Mr. Claiborne must concede that.

Now the Labor Management Reporting and Disclosure Act is a unified scheme to protect the rights and interests of union members and the public.

I think there has been a lack of presentation, if I may say so, concerning both the structure and the content of the statute which this Court must consider.

Under section 402, on complaint of a union member, it must be a union member, the Secretary after investigation may bring a civil action to set aside the invalid election, not a later election, not any other election, but the election found to be invalid.

In the meantime pending this conclusion, the election even though challenged is presumed to be valid.

It allows the elected officers to continue to function.

This I think was a deliberate choice Congress made rather than move, remove the challenged official.

Somebody had to run this union or the union and they were permitted to remain so that the affairs would not descend into chaos.

But it's the election or the election contest that was challenged, that's investigated and whereupon trial a preponderance of the evidence if it reveals that a violation may have occurred then a court is then authorized to declare the election void in the conduct of a new election.

Thus in 1966, when the union officers who had been elected in 1963 completed their terms of office, the Secretary's action was moot, these terms of office had expired.

Resulting from the invalid, unchallenged election, the terms of office had expired and the allegedly invalid, unchallenged election was over.

The officers who were now holding office in 1966 came in as a result of an unchallenged, un-protested election.

No purpose would be served now by an order in 1967 or perhaps in 1968 to conduct a wholly new supervised election.

The Secretary has had his supervision.

He has had his supervised election, and the only effect seems to me of a supervised election at this time would be to remove or to set-aside the election of those elected in 1963 whose terms of office have expired and the practical effect would be the un-seeding of those who were elected in 1966.

There has been no mention in the presentation of the case as far as Section 601, and if the contention were to be made that this is to declare this action moot is a serious hamper upon the effective administration of the statute by the Secretary.

I would call to Court's attention Section 601 of the statute.

Here under this section, the Secretary has given a broad plenary power to conduct investigations from top to bottom.

There need be no challenge.

There need be no complaint and if the Secretary's representatives who were present in the union hall in Youngstown on July 11, 1966 had any cause to believe there was anything unregular about that election under Section 601 without a complaint, they could have disclosed every wrongdoing, but nothing was forthcoming.

And because of this latitude, if this case were to be declared moot, no undue burden is placed upon the Secretary in the effective administration of the statute.

Moreover Your Honors, may it please the Court, the gist of the complaint here was that some 50 to 60 ineligible members voted, and some 15 or 16 ineligible members were candidates for office.

This is because of a strict interpretation placed by the Secretary upon the constitution.

It's because of that strict interpretation placed upon it and that the union in October 1966, the International Union in October 1966 amended its constitution.

So that from now on in when the member pays, if a member fails to pay his dues on the first day of the month, and if they are not paid by the last day of the next following month then that member shall be subject to be suspended by the International.

But as long as he as paid his dues and has not been suspended by the International Union, he has the franchise and he can go in and cast his ballot and he will not be denied the privilege of voting.

Justice Abe Fortas: Forgive me for interrupting but going back to 601, what is the Secretary's remedy other than disclosure?

Mr. Mortimer Riemer: The Secretary's remedy under Section 601 Mr. Justice Fortas is to conduct investigations to subpoena records to go into every conceivable aspect of the union's conduct.

Justice Abe Fortas: I understand it, and I'm asking what is his remedy in addition to disclosure?

Mr. Mortimer Riemer: Oh!

The remedy?

The remedy, Your Honor, would be public disclosure.

It would be a report to the member.

It seems --

Justice Abe Fortas: Dose he have any court remedy?

Mr. Mortimer Riemer: What is that sir?

Justice Abe Fortas: Dose he have any judicial remedy?

Mr. Mortimer Riemer: No, no sir, no Your Honor, no.

But it seems to me that the public disclosure, the inherent and deterrent power of public disclosure is a rather powerful weapon.

Chief Justice Earl Warren: That's the equivalent of this proceeding?

Mr. Mortimer Riemer: Not, not, no Your Honor, not the equivalent of a legal proceeding but I cannot overlook the powerful deterrent effect on the union move of a disclosure concerning any irregularities.

I am sure that this would cause the members to respond by then filing some sort of complaint under Title IV, which would be the subject of legal proceeding.

Justice Byron R. White: Well, Mr. Riemer, if the mootness in this case happened to depend on whether or not there was something wrong for the second election and suppose the Secretary had the power under 601 to make that kind of an investigation determinant?

Mr. Mortimer Riemer: Yes, Your Honor.

Justice Byron R. White: And did this Secretary investigate the second election other than this supervisory.

Mr. Mortimer Riemer: No, Your Honor.

Mr. Justice White, there was no investigation or even mention other than the certification that the results were valid and that a man by the name of Andrew Jackson now held office for the constitutional term.

Justice Byron R. White: Would a decision on mootness in your favor washout all the other issues in this case?

Mr. Mortimer Riemer: Unless the Court in its discretion would wish to consider the merits and that is the authority of the Secretary to widen the basis of the complaint.

Justice Byron R. White: How do you get to that if the case is moot?

Mr. Mortimer Riemer: If the case is just -- if the Court were to hold the case as moot it will not become necessary to get to that issue and the Court of Appeals because it held it moot, did not get to that issue.

But let me address -- Mr. Chief Justice permit me to address myself to the, to this question of exhaustion for just a moment.

In the event the Court should hold the action as not moot, there does remain this question and it was the subject of some examples -- some questions from the bench yesterday.

I need to repeat the Dial's complaint, the incumbent business representative, his complaint to his union and to the Secretary was a very limited one.

He asked the union only really to give him back his job because he had been defeated.

He asked the Secretary to investigate an election held July 13 at local 125.

This was all the relief he wanted, but the Secretary's legal action was a broad complaint based upon the alleged irregularities of June and the alleged irregularities of July.

Now, the statutory language it seems to me, Your Honors which is set forth in the amicus brief of AFL-CIO shows in our judgment conclusively that the Secretary exceeded his authority.

The language of the statute is quite clear in Section 402 that it is a member who has exhausted his internal remedies and only then may he file with the Secretary, may complain alleging a violation of Section 401.

The Secretary investigates such complaint, not any complaint or all complaints but such complain and then if he finds probable cause to believe the violation occurred, he brings the civil action to set aside the invalid election.

The Secretary may vindicate only what the members complained of and shown to exist and he's limited, in our judgment, to the member's complaint.

Dial intended, there is question about, this was made abundantly clear at the hearing accorded to him by the International Union, there is no question that he intended to protest his own defeat and loss of office and it is exhaustion of that one issue, did not furnish the necessary predicate for the Secretary to go in and seek to set aside the June election never challenged or the other irregularities allegedly uncovered.

If there is any theme that seems to me which appears throughout the legislative history, is the congressional concern for exhaustion.

There may have been other legislative differences as to how to approach the problem.

There were differences of opinion in the Senate Bills and House Bills, but one thing does appear.

All of the legislators agree that the primary basic predicate was exhaust remedy and then complain to the Secretary.

This is important.

The self discipline and habits created by International Unions in according to complaining members, through hearing panels an opportunity to disclose their complaint, the development of an informed leadership and an alert and aware membership is fostered by these internal unions processes.

Now in answer to a question yesterday put to Mr. Claiborne by Mr. Justice Black, in substance, “Once a complaint is made, do you uncover the entire area?”

And Mr. Claiborne if I recall correctly said, “Yes, this is the rule which we wish to apply and we need laboratory election.

We cannot accept this, what I call, a trigger theory.

The adoption of this theory means that once a union rejects a limited complaint by a member, there maybe no justice for it and no substantial basis for the complaint, but the Secretary then may conduct a free-wheeling investigation, file a complaint, covering violations never even thought of by the member or complained of and considered by the International Union.

Chief Justice Earl Warren: That is not known by then?

Mr. Mortimer Riemer: And -- yes Your Honor.

Chief Justice Earl Warren: Before the Secretary makes that investigation I would suggest.

Mr. Mortimer Riemer: What is that sir?

Chief Justice Earl Warren: I would suggest that maybe they weren't known – it couldn't be known to the --

Mr. Mortimer Riemer: That's right.

Chief Justice Earl Warren: -- until the Secretary had investigated it and found what the facts were and determined on what basis he would proceed, if any?

Mr. Mortimer Riemer: That is true, Your Honor.

But I think this is what the statute comprehended and I think this is what the statute provided that the member must exhaust the compliant and it is his complaint upon which the Secretary is authorized to proceed.

May I just say that the analogy to the National Labor Relations Act is not well drawn.

We have a totally different statute for a totally different purpose.

The two are -- do not go down parallel paths at all.

Under the Labor Act, anyone can file a charge, investigate it, if necessary may be amended, and then the complaint issue.

Under a Labor Management Reporting and Disclosure Act only a member may file a charge.

There is a requirement, precise requirement of exhaustion in the statute.

Justice Byron R. White: Could you tell what exhaustive amounts to in this union?

Let's assume that the -- a defeated candidate complains of what happened in an election that has just been held.

Officers have been elected, they're holding office, he complains that he didn't have the full watcher like the statute requires or permits and he complains and the union says yes that's very true, then what happens?

Mr. Mortimer Riemer: Your Honor, Mr. Justice White I think it's more than that.

I think by exhaustion, it's meant a full and adequate opportunity to appear before some union appellate board.

Justice Byron R. White: Exactly, exactly I agree.

So he does and the union granted that, then what happens if they sustained his charges?

Mr. Mortimer Riemer: If they find what sir?

Justice Byron R. White: If they sustain that they find out that what he says was actually true?

Mr. Mortimer Riemer: Then the union would then, if it's faced with an election, it would uphold the appeals and direct another election for that office.

Justice Byron R. White: Now there is -- in the union that's involved here, is there power within the union --

Mr. Mortimer Riemer: Yes sir.

Justice Byron R. White: -- to set aside its own election?

Mr. Mortimer Riemer: Yes sir.

There is a complete appellant procedure, a very detailed appellant procedure in the International Union for just this thing.

We have pointed out in our brief, in the appendix to the brief the detailed deliberate appellant procedure and what happens when cases are appealed and the action taken by the International Union.

Justice Hugo L. Black: Is it your position that elections are immune from the fact that the Secretary, expect upon a complaint by a member and that the Secretary is limited to the precise complaint, which the member proposed?

Mr. Mortimer Riemer: It is our position that the Secretary is limited generally to nature of the complaint filed by the individual member Your Honor, that he cannot go beyond it to get into something which is quite apart from --

Justice Hugo L. Black: You mean he cannot go to other ground --

Mr. Mortimer Riemer: To other ground.

Justice Hugo L. Black: -- that was raised by the member?

Mr. Mortimer Riemer: Yes sir.

But Mr. --

Justice Hugo L. Black: Do you think that's what Congress intended in the act?

Mr. Mortimer Riemer: I do sir; I think Congress made a deliberate choice.

Congress did not want to establish the Secretary as a trustee or administer the affairs of the union.

Congress wanted to give to the local unions as much independence and autonomy as possible and depend upon the union member to exercise his right.

Justice Hugo L. Black: Do you believe the union agreed acceptance to provide individual members to attack the election on a particular ground?

Mr. Mortimer Riemer: Well not altogether sir.

Mr. Justice Black I come back to Section 601, which I think is so powerful and its deterrent effect that if a member files no complaint, the Secretary still has ample authority to disclose every irregularity that maybe uncovered and I must repeat the -- this is a disclosure act Mr. Justice Black and the effect of disclosure upon the trade union membership is indeed a powerful one and a costly one and one which the trade union movement cannot sustain.

Justice Hugo L. Black: Well if 601 gives the power, what difference does it make, how it proves the other clause relating to the membership you have?

This particular one, gives the Secretary a full and free trial to investigate whenever he feels -- to disclose a fault in the election.

What difference does it make, how we construe, how narrow or how broadly we construe the Secretary's power under the membership?

Mr. Mortimer Riemer: Mr. Justice Black, I think the answer to it is the congressional -- is the statute in what Congress intended.

I don't think Congress intended to have the Secretary conduct or interfere with the internal administration of unions.

Congress wanted local unions to establish standards in compliance with the statute and to accord every member of that union an opportunity for a hearing, a considered judgment upon his appeal, but to leave so far as possible the government out of the business of administering the affairs of local unions.

Justice Potter Stewart: And 601 as you said, as I understood it in answer to the question of my brother Fortas is, while it's broad--

Mr. Mortimer Riemer: It's more than broad Your Honor.

Justice Potter Stewart: It's very broad, but at the same time very -- it's limited because it gives no remedy.

It gives the Secretary no power beyond merely to investigate, even publicity powers, is that true?

601 doesn't give him any power to conduct a laboratory election or to set aside an election or to do anything else.

There is no remedy at all there expect publicity, investigation and publicity in 601?

Mr. Mortimer Riemer: 601 does not give the Secretary, that's right.

Justice Potter Stewart: That tends to answer Mr. Justice Black's question.

Mr. Mortimer Riemer: Yes sir.

Justice William J. Brennan: Mr. Claiborne.

Rebuttal of Louis F. Claiborne

Mr. Louis F. Claiborne: Mr. Chief Justice, may it please the Court.

I'd like to address myself to the suggested distinction between the case in which the violation has recurred in the supervening election.

In this case all we know it did not recur.

The suggestion being that in this case, Secretary's suit is mooted because there has intervened a clean action or as perhaps in the previous case as Mr. Justice Fortas put it the gravamen of the offense, the gravamen of the charge remains because the taint continued through the second election.

It seems to me that that distinction between an apparently clean supervening election and equally tainted supervening election, although appealing at first is both contrary to the statutory scheme and an unworkable basis of the distinction.

As to the statutory scheme, the statute might have provided that where there is an invalid election and the court so finds then the court shall order that the election be rerun free of the taint, it might have left at that.

It did not, Congress did not choose that remedy instead of which it said the election shall be rerun under the supervision of the Secretary.

That was presumably to assure not only that this particular violation would be eliminated in the rerun, but that other violations, new violations would be eliminated if they were to reintroduced at this rerun election.

Justice Potter Stewart: Mr. Claiborne I think I have a little difficulty with the mechanics of what would happen in the event that the Court shall decide that your position is correct.

What was complained of here by union member and the only thing it was complaint of a union member was something to do with an election back in 1963 and that's a runoff election, is that right?

Mr. Louis F. Claiborne: That is correct.

Justice Potter Stewart: In 1963 that particular, it might have been take care of because there was laboratory election of the business agent election and other than -- for the 1963 term and which the complainant lost, is that right?

Mr. Louis F. Claiborne: Insofar as the complaint read it was limited to the business representative election that has been corrected.

Justice Potter Stewart: That has been a long history now.

Then there was another election in 1966 of which no union member complained, which you say should have been conducted by the Secretary under these laboratory conditions but it wasn't and that too is now history.

And let's say that we should decide that your basic position is right, but what happened, we're now in 1967, we're running close to 1968, it will happen and what were terms of -- when would the elections be held, what will the terms of officers be.

This all began with a rather narrow complaint by one individual as to runoff election back in 1963, I'm just having a little difficulty maybe --

Mr. Louis F. Claiborne: Mr. Justice Stewart as to the limited scope of the original protest, we argue of course that, that protest goes not only to the rerun, but to the general election held a month early or must reasonably be viewed as going to.

Justice Potter Stewart: But exactly the actual protest was as to a specific runoff election of business agent?

Mr. Louis F. Claiborne: That is true.

Justice Potter Stewart: I understand your position that it triggers that any such thing triggers a much broader investigation?

Mr. Louis F. Claiborne: Assuming, as I must to answer your question that Secretary may look beyond the narrow protest, which was filed internally with the union and that broader complaint is sustained for that purpose, here there must be a remand to the district court, assuming it is staying that is the June 1963 general election is tainted and invalid.

There is no need for an order setting it aside since it has been superseded.

There remains a need for a new election, a supervised election to remove the taint, which it seems to us must be assumed to still subsist.

Justice Potter Stewart: The new election -- there was a new election in 1966 and that too is history?

Mr. Louis F. Claiborne: That the problem of the term of office is the same whether we are dealing with an intervening election whether we are dealing with an original election.

If the new election ordered by the court is at the very end of the term of prior election the Courts will as a matter of accommodation either hold the election then and make the term three years and two months or will wait as in this case and simply delay the laboratory election until the regularly scheduled one under the union's counsel.

Justice Potter Stewart: So that might work out in this case with the natural delay plus the kind of accommodation by the Court which you are talking about, if you won't get your actual laboratory election if you call it until 1969, is that right?

Mr. Louis F. Claiborne: That is that is.

Justice Potter Stewart: That's well realm probably?

Mr. Louis F. Claiborne: That is possible, of course that is true in this case only because it has come to this Court that would not be the normal situation.

Justice Abe Fortas: Does the government contend that the 1966 election is characterized by the same fault that is found in 1963 election?

Mr. Louis F. Claiborne: We are in no position to make that decision nor we can say the contrary.

We simply don't know and that's the problem in these cases.

Justice Abe Fortas: Well, I thought your adversary said that perhaps a bit optimistic whether Mr. Claiborne would conceive that 1966 election was without fault, we both accept --

Mr. Louis F. Claiborne: We did not supervise it, we simply don't know.

Now if it was in fact clean and whenever the election attacked is about to be overtaken, the union has a very simple remedy if it's going to run a clean election and want to move up the case.

It is free to really move the case by agreeing to supervision.

It tells this under 601 we can investigate that election and oversee it and then there are some suggestion that oversight is really the same supervision that supervise it, it will happy.

Justice Abe Fortas: May I put a hypothetical case to you?

Let us suppose that the only fault that the Secretary had found in 1963 election was a presence of a certain bylaw and let us suppose that thereafter that particular bylaw by former union action turned out in good faith had been eliminated.

Would you still say that that case was not moot and that the Secretary was empowered to an order requiring supervise the election?

Mr. Louis F. Claiborne: We would say that the case is not moot and the Secretary is still entitled to insist on an laboratory election taking into consideration the fact that union had refused to voluntarily withdraw this bylaw before the next election had occurred or before the Secretary had filed the complaint which it was free to do, it doesn't follow that Secretary will insist on asserting his right.

The Secretary --

Justice Abe Fortas: No but suppose he does and your adversary correctly says that that's what's happened here by following.

But what you are really saying then is that the truth of essence results in sort of -- results in creating a condition which can cured only by if it was an election and you construe the statute then as prescribed remedy for that sort of sin, let me put in that perhaps some fair way.

Mr. Louis F. Claiborne: It seems to us comparable to the law of injunction, which commits an injunction to be issued although there has been compliance in the interim.

The purpose of the injunction being to assure that it will not occur in future.

Now in the case put by Justice White yesterday where the violation was technical of isolated nature, not likely to recur, the great probabilities are that if that particular violation is eliminated and the Secretary is satisfied that the intervening election is in all other respects clean, he will voluntarily dismiss his complaint and not insist on a disrupt -- a new election.

Justice Byron R. White: You say that the even where the pole watcher is the only [Inaudible] the first election and then the second election is perfectly clear that nothing happened at all, you would say that the Secretary would still have the right to say that this not moved.

Mr. Louis F. Claiborne: Well, I would say the case has not moot primarily because in order to determine whether the second election was holy clean, you really need a new trial --

Justice Byron R. White: You need a what?

Mr. Louis F. Claiborne: A new trial before the District Court.

Justice Byron R. White: Okay.

Mr. Louis F. Claiborne: If the Secretary is satisfied and voluntarily dismisses the suit.

Justice Byron R. White: [Inaudible]makes no claims whatsoever, is there anything wrong with the second election, its just he just want to hold a mandatory election, that's your position?

Mr. Louis F. Claiborne: Well, it seems to me the duty is other way.

The duty is on the union to demonstrate that the intervening election which it refused to allow the Secretary to supervise, is in fact clean.

However, there maybe instances where the Secretary is abusing his discretion in failing to dismiss a case.

In that instance perhaps the District Court as it would in an injunction case not because of mootness but because of want of equity would deny relief to the Secretary on the ground that the court is not concerned with trifles, will not grant harsh relief when the violation is de minimus or where the indication of any recurrence of the violation are insufficient.

We do concede in the district court that power, but it does seem to us that the normal remedy is laboratory election.

That is the remedy prescribed by the statute and except where the Secretary waives it or where the Court feels it's too harsh under the circumstances it ought to be followed.