*3 Before FEINBERG, HAYS and Cir Judges, cuit Judge.* DIMOCK, District HAYS, Judge: Circuit plaintiff Both Secretary of Labor and appeal defendant union from a United States District Court for the Southern District of New York in a involving case an election of officials defendant union. The district court held that a certain of limiting union of 401(e) fice was violative of Section Labor-Management Reporting Act of Disclosure U.S.C. § York, by designation. sitting Of the Southern District New aside, Defendant attacks (e),1 set under declined to but Act, 402(c) provisions by- of Section holding (1) the union’s ap the election in which 401(e), and law violated Section to show plied failed because injunction issuance by questioned application of the against violations. future “may the outcome” affected law was cor- court hold lower We However, court district election. ruling respect rect by-law to enjoined application violations, alleged reverse but additional During course future elections. by-law was violative decision hearing applica 401(e). the reason last For of Section rejected tion, certain court the reason also for stated proffered evidence enjoin vio- future court had *4 to other violations Section injunction which lations, set aside the Secretary alleged the which the ordered. district court the of the in course union had committed I. election, ground the the Sec on the court’s any by turn first to the supported retary’s We action was not questioned the determination complaint with re from a union member the of statute. a constituted violation (See spect alleged to these violations. by-law provides: The 482(a)).2 402(a), 29 U.S.C. § eligible “In for nomination order be Plaintiff attacks possess officer, must as an a candidate (1) the the elec- refusal to set aside (1) following qualifications: He tion, and in con- of the Union must a member be period good standing of for a (2) rejection evidence as to the tinuous of immediately preceding his years two additional violations. bylaws any required by (e) or in constitution and 1. In this election sec secretary, by is des- if other official tion -which is to be held ballot secret year ignated, preserve opportunity given shall for one a shall be reasonable pertaining all records ballots and other for nomination of candidates and con- every good standing shall be election. The election in member shall be eligible in accordance with the constitution ducted a be candidate to hold bylaws organization insofar (subject of such title office to section 504 of this pro- they qualifications are inconsistent with as and to reasonable uniform subchapter. ly imposed) right this visions of shall support or vote for the can otherwise organization— (a) a 2. A member of labor choice, or candidates of his without didate being (1) the remedies who has exhausted subject penalty, discipline, or by- available under the constitution and reprisal any improper of interference or any organization and of laws of such by organization any or kind such member parent body, or days prior thereof. Not less than fifteen reme- has such available invoked to the election notice thereof shall be obtaining a final decision dies without mailed to each member at his last known their months after within three calendar good home member Each address. invocation, may file a standing shall entitled one vote. be Secretary month within one calendar No with- member whose dues have been alleging of thereafter violation by employer payment held his to such (in- provision title section 481 organization pursuant voluntary to his cluding constitution violation provided bylaws organization pertain- authorization in a collec- of the labor agreement bargaining ing tive shall be de- of- and removal of to the election challenged ineligible ficers). be be The election shall clared vote or a candidate organization by presumed pending final decision for office in such valid a reason alleged delay payment (as provided) or thereon hereinafter default by organiza- of dues. votes cast members of the interim the affairs of The organization be the officers each local labor shall be conducted shall published, counted, sepa- other manner as its and the results elected or may provide. bylaws rately. designated The election constitution and officials nomination; (2) governance He either must be a member over courts Assembly of either Act or the Execu- or of Labor. The else, strictly Board, at time in the tive or some limits interference official past, year See, have served at least one internal affairs of unions. Calhoon Board, Harvey, either the Executive the As- v. U.S. S.Ct. Delegates sembly, Arons, Shop or the old L.Ed.2d 190 Gurton 1964). (2d Act Council. In order to 339 F.2d 371 Cir. prescribes Execu- minima and nomination as member certain basic Board, delegate mini- tive to the Assem- covered these leaves area not bly, department delegate, prescriptions or as a a mum to the decisions candidate be a must member unions themselves. standing good Union in continuous “Congress intentionally nar- created a period year least one at immedi- remedy Title row under IV ately preceding his nomination.” un- interference with LMRDA so that aspect management clause to ion elections and which exception require- kept takes is the Locals a minimum.” Wirtz v. previous 410, 410A, 410C, ment of service Execu- on the Int’l Union 410B & Board, Assembly, Engineers, Operating tive or on 366 F.2d Delegates Shop 1966). (2d Council.3 Cir. 401(e) provides “every Supreme Court, discussing Section Title *5 good standing general congression- IV, member shall be referred to “the great to be policy a candidate and to hold office al resolving unions latitude allow * * (subject qualifi- their reasonable own internal controver- ** uniformly imposed) Harvey, supra, cations *.” sies.” Calhoon 379 481(e). 140, 29 U.S.C. at issue which 85 at 296. U.S. S.Ct. eligibility we must resolve is whether the legislative policy leaving of restrictions of the union are “rea- self-gov- degree of unions maximum qualifications.” sonable emphasized many points ernment is legislative history. in the determining question In this 1684, Cong., Report In Senate No. 85th regard “clearly do not erroneous” (1958), example, 2d for 12-15 Sess. controlling, rule as see Donaldson Pub following appears: lishing Bregman, Conn, Co. v. Vocco & Inc., 639, (2d 1967) ; gave study 375 F.2d 641 committee Cir. “The careful Corp., proposals providing Baranow v. Gibralter Factors to various for 584, (2d 1966); F.2d 587-589 Cir. of the Na- Ma conduct union elections miye Inc., Lines, Bros. v. Barber tional request S.S. Labor Relations Board cert, 774, (2d Cir.), F.2d denied, percentage 776-778 of a small of rejected U.S. 87 S.Ct. 17 L.Ed.2d 70 members. approach committee (1966), although were, even if for it we are reasons. two left with “the definite and firm convic tion that a mistake has been committed.” objection One fundamental is that proposals these arm turn over to an responsibility See United Gyp States v. United States of rying car- State for Co., 364, 394-395, sum 525, 333 U.S. 68 S.Ct. governmental on the internal (1948). 92 L.Ed. 746 processes voluntary associations deciding showing any In issue of without the union reason keep ableness we incompetent must officers and mind fact members are purport corrupt. the Act did to take or a Such measure does away governance promote democracy. from labor unions the or re- freedom It self-government. of their own internal duces affairs and hand It denies previous 3. Since service Board for on the Executive law on service the Execu- disregarded. is confined to officers and members of Board tive provision Assembly, by- Welfare, and Medical Pension private responsibility 000. Its and self-deter- $30,000,000. of over of a Funds have assets lie at heart mination which hotel, jurisdiction motel Reprinted in The local has voluntary association.” throughout employees York Labor, New Department and club United States City em- Legislative hundreds of History deals with of the Labor-Man- and having employees ployers agement on Reporting Disclosure Act behalf of and differing as on skills as well 1959, p. number of here- [Cited em- “Legislative History.”] of semi-skilled unskilled behalf after as ployees. to us seem does not Report In No. the Com- Senate surprising hesitate the union should following “prin- mittee referred to permit or dish- a cook or waiter legis- ciples” governing proposed training experi- any or washer without lation : management union affairs ence in the recognized “1. The committee responsibility complex to take for desirability of minimum interference problems of and difficult administration by Government affairs internal of this union. organization. private Trade Assembly, Membership in the union’s unions made a commendable ef- which under the union’s abuses; fort to correct internal hence eligibility posi- principal basis the committee believes that essen- provides greater responsibility, tions of imposed by tial standards should be meeting opportunity legislation. Moreover, establishing experienced officers and with other more enforcing statutory standards considera- members discussion great care should be taken not to un- negotiations, enforce- contract self-government dermine or clauses, ment of contract union finances weaken unions in their role as collec- many aspects adminis- of union other tive-bargaining agents. Assembly are tration. Members of they 2. the maintenance mini- Given also members district councils *6 safeguards mum democratic participate and de- there work tailed essential information about deal all committees which with various union, fully aspects individual problems. members are union competent regulate to union affairs. that unreason- not it is We do believe strongly opposes any The committee at- union able for a to condition tempt prescribe procedures to detailed greater responsibility offices of for and for standards the conduct of union year experience and kind regula- paternalistic business. Such training that member will ac- a union tion would weaken rather than position quire that of mem- in a such as strengthen movement; the labor it Assembly. bership in 6’s Local cross over into area of trade by-laws procedure provide The for licensing destroy union and union in- file their If the rank and amendment. dependence.” S.Rep. No. 86th any felt members of the union had Cong., (1959), reprinted 1st Sess. 7 during many years time which Congressional U.S.Code and Adminis- eligibility in ef- restriction has been News, p. trative they unjustly being fect were bar- sought they red from could have office Turning application to provision. The amend restrictive policies present case, these we hold bring attempt record shows about it is self-evident that basic such an amendment. principles democracy minimum of union much makes Secretary require every of Labor union The entrust ad mem- only about ministration of its the fact affairs to untrained eligible elec- for inexperienced the union are rank file mem bers of However, 26,000 offices. bers. Local to the 31 elective 6 has over members. with is combined $2,300,- Its assets amount more this number than when standing namely, the union filed good member that no fact that all members complaint Secretary any toas opportunity to with the year for one have the 402(a) (b), getting items. office these Section become (b), 482(a) provide that: in the four elected U.S.C. § themselves to seats Assembly, the num- member hundred-odd bers, per se, organiza- “(a) A member of a labor tion— n to estab- to us do not seem lish unreasonableness. remedies has exhausted the the Sec the function of It is not available under bylaws constitution prescribed retary organization to determine what and of of such has violated Section 401 lieve that a to- the union’s decision. We must ed that in sonable has governance The qualifications dictate what limiting candidacy purposes Secretary’s finding that trespassed upon union’s own rules as prevail light qualifications. proper which policy unless present union reading office unions history they impose left an area case democracy areWe by adopting the will should follow can the statute do not be best the union eligibility of union persuad statute justify unrea nor office. serve x has not been able cause to believe title parent body, * * * bring a civil action of this any provision of tary (b) ^[*] set file a complaint * * * alleging * * * ^[*] ” subchapter ^[*] aside Secretary shall complaint ^[*] and, remedied, he section has -» if he finds invalid that a violation with the violation of occurred and ^[*] 481 of this investigate * * election Secre- -X- prob- shall * eligibility requirements. contested appears lan from the we- have determined Since guage of the Secre the statute itself that qualification, it is is a reasonable tary may only proceed to those vindicate necessary this re- to decide whether violations he has which “may have affect- striction on candidates legislative complaints. his received of the election. ed the outcome” tory Congress reveals that intended that Accordingly, (c), 482(c). 29 U.S.C. § the bring should have not deal that issue. do complaining an action after a reme member has exhausted his union II. See, example, dies. remarks of Sen sought to set 12, 1958, Legisla Kennedy, ator June *7 grounds aside the election on other three 1093; History, supra, S.Rep. No. tive at by-law: in addition to the restrictive 1684, Cong., (1958), re 85th 2d Sess. give adequate the that union failed to printed Legislative History, supra, in at composition the the notice of election 701. districts; improper there in- that was Secretary argues strongly right terference the members’ to general power protect pub for a to the support vote for and candidates of their interest, nothing lic the but statute choice; and that not certain offices were legislative suggests background or in its by filled election. general power. the existence of On defendants’ motion these additional Secretary’s is, function in Senator grounds were stricken from the Kennedy’s words, to act as “the [com by Wyatt Judge Judge McLean. at the lawyer.” plaining] union member’s See Secretary's the trial refused offer of Legislative History, supra, at 1093. proof to these additional al- legations. A suit to declare union elec a only uphold rejection “may brought of the addi- tion after We the void be a allegations ground proper tional on the relied union member has made a com by Judge court, Secretary,” plaint McLean in Local on the district Wirtz v.

507 refusing 442; right 410, district court was etc., supra, F.2d 366 Unions 9-B, Int’l 9, find that of section 401 the violation accord, 9-A & Locals v. Wirtz may Engineers, F.2d of the have affected the outcome Operating 366 Union setting moot, statutory election, 1966), as basis (10th vacated Cir. 911 May 15,1967), the election (U.S. side. 3403 35 U.S.L.Week L.Ed.2d S.Ct. U.S. Irrespective provisions Rule Local see Wirtz 52(a) findings that of fact F.R.Civ.P. 445, 448 F.2d of Teamsters Int’l Bhd. clearly not erro- shall be set aside unless 1963). (2d Cir. agree neous, I with the district court’s findings (a) only way attain that III. through in the office member- was though judge, he refused The trial ship Assembly, only in the candi- enjoined election, from the union void dates that won such election those were future applying its restrictive A, on ran the administration Row injunction set must be elections. ticket, only way they could aside, hold the not because we run on Row A was to selected 401(e), also but not violative Section administration, (b) that “dissidents concedes, because, as op- could not to be have become power issue the Act to court has under posing candidates for office and effective injunction. such an opposition sharply curtailed.” question When it comes to the Judge (concurring). DIMOCK, District findings’ inviolability “clearly er- holding majority’s in so I concur roneous,” escape I can see no from the injunction disapproves far as it an effect of rule. are here We omission disturb findings faced with of fact drawn Secretary’s applica- court’s denial of from set of cold documents. This a to set aside election. question case where before dis- My elimination of in the concurrence practical trict court was effect of the provision injunction for the is based rules a union. It to me seems be made upon lack concession of clearly the “not erroneous rule.” court. the district The effect of the not de- restrictions does pend entirely on their letter. When Though majority’s I concur also Judge Wyatt found dissidents could in so omission disturb opposing not have become candidates election, far as it fails set aside expressing office he was the distillation grounds. on I reach the result different testimony happened of oral what about qualifi- The district court held that particular particular in a or a hotel not reason- cations were helpers caucus waiters or or kitchen 401(e) able within the terms of section discourages thorough chamber maids. necessary it could not but that make judge work of first instance for statutory finding the violation appellate lightly reject court section 401 the out- affected finding feeling based for a case court, come of the The district election. judge get by patient the trial can *8 therefore, election. to set aside the failed listening to evidence of what is behind My brethren the district court hold the written documents. finding qualification the un- erred in agree reasonable thus the affirm pass I to the issue not reached the judgment setting denying of the aside majority: Judge the correctness of reaching question the election without the Wyatt’s opinion judgment in so far upon qualifications the candi- whether as it holds it cannot found that dacy may have affected its outcome. the 401 with violation of Section agree qualifications I the of affected with court candidates qualifications accept the the outcome of the election. I were unreasonáble Judge Wyatt’s opinion question the excellent and con- thus reach whether will the myself saying simply entry judgment tent appropriate with so since of the * -x- subject preceding the does not seem to me to have the statement precedential case, opinion purports, sufficient in value warrant the instant repetition Though however, parts he what has said. to affirm and reverse majority good be- the court below. hold election “decision” of qualification Though appears again, cause the time was reasonable the word good itself, opinion appeal and I maintain that it was because does not lie qualification, unreasonable, though finding from as such. or conclusion it, Breeding Freight did not affect we reach same result Motor Lines v. Re Corporation, and I concur in that result. construction Finance 416, 425, (1949).* F.2d That 10 Cir. agree majority IWhile with the is not used here word “decision” right that the district court ting was omit- “judg equivalent as a conversational grant Secretary’s prayer appears ment” from the its fact set aside the election and that the dis- appeal use affects the result. If the had wrong awarding trict court was an judgment, judgment been from the injunction, disagree majority I have one re been reversed as to the form of our mandate. being spect instead of reversed two preceding majority The statement respects purports in which the statement opinion appeals recites that the are from from reverse decision. This arises judgment (a) which was entered majority the fact that the this court * * * (2) holding that, decision agree judgment with the court though a certain of the defendant Secretary’s prayer that the below for a limiting candidacy for union office setting aside of the election should be 401(e) Act, violated section disagree denied but the court be 481(e), U.S.C. election which the giving as to the decision the reason low applied could not be declared denying prayer. The district provisions void 402(c) under the of § prayer court said that should be de plaintiff because failed to show that the because, though nied re 401(e) “may violation of section have law, striction it could not violated affected the outcome” election and might be election, that it affected the said (b) enjoined (3) application which majority says that the while questioned by-law to future election. prayer should denied the can because expression statement ends with the didacy restriction did not the law violate “Affirmed as to reversed toas and, therefore, ques does not reach the (3).” effect on election. The state properly The statement thus draws a preceding opinion, ment which would distinction between the decision and the affirming have the effect of the lower judgment. Judge As said Leibell judgment refusing grant court’s Winkelman v. Corpora General Motors prayer, purports, however, to reverse the tion, D.C.S.D.N.Y., F.Supp. 490 lower court’s decision as to reason. its (1942), “The Federal Rules of majority holdings The result of the Civil Procedure make a clear distinction my foregoing concurring opinion (the between the Findings decision expressed should be in the same direc- Fact Law) and Conclusions of and the tion: judgment.” appears 52(a) As from Rule F.R.Civ.P., “[T]he court shall find the pro- is modified so as to specially facts separately and state simply vide and, for dismissal of the conclusions of law thereon and direct the modified, as so affirmed. “decision,” The word parte Tiffany, as used in Sections below. Ex 252 U.S. *9 and 1292 of Title 28 of the United 40 S.Ct. 64 L.Ed. In jurisdiction defining States Code Corporation, re Forstner Chain F. Appeals, judg- Court of refers 2d 1 Cir. ment or other final sentence of the court