Moore and Hays, Circuit Judges, and Timbers, District Judge. Hays, Circuit Judge, dissenting.
The National Maritime Union of America appeals from a judgment entered April 24, 1968 in the United States District Court for the Southern District of New York by Constance Baker Motley, District Judge, after a non-jury trial, setting aside the union's 1966 election of officers and directing a new election pursuant to Section 402(c) of the Labor-Management Reporting and Disclosure Act of 1959, 29 U.S.C. § 482(c).*fn1 284 F. Supp. 47 (S.D.N.Y. 1968). The union also appeals from an interlocutory order by Judge Motley striking its demand for jury trial. 272 F. Supp. 68 (S.D.N.Y. 1967).
The district court held that the union's requirement that would-be candidates for union office personally obtain the official nomination forms and necessary endorsements and the union's requirement that a candidate for national office must previously have served as an officer violated Section 401(e) of the Act, 29 U.S.C. § 481(e).*fn2 The court having found a reasonable probability that the outcome of the union's 1966 election may have been affected by these violations, it held that the election must be set aside and a new election conducted pursuant to Section 402(c)(2) of the Act. The court also determined that the union's failure in 1966 to elect the field patrolman in Panama, the branch agent in Yokohama, the officials in charge of the ports in Greenville, Memphis, Joliet, and Paducah, and all patrolmen violated Section 401(a) of the Act, 29 U.S.C. § 481(a),*fn3 and required a new election pursuant to Section 402(c)(1) of the Act. In addition, the court found that the union's failure to provide absentee ballots violated Section 401(e) but declined to order a new election on this ground because the violation did not affect the outcome of the 1966 election.
The union claims the court erred in striking its demand for jury trial and challenges the court's holdings with respect to the self-nominating procedure, the prior office requirement, and the failure to elect various officers. We agree with the district court that there is no right to jury trial. We further agree that the self-nominating procedure, the prior office requirement and the failure to elect various officers violated Section 401 of the Act and that a new election must be held under Section 402(c). We therefore affirm.
The union contends that in an action brought by the Secretary of Labor pursuant to Section 402 of the Act there is a right to jury trial, and the district court erred in striking its jury demand. No claim is made that the Act itself confers the right. Indeed, the language of Section 402(c) indicates just the opposite. It is "the court" which must find upon a preponderance of the evidence after trial upon the merits that Section 401 has been violated; and it is "the court" which must declare the election void and direct the conduct of a new election. Cf. Wirtz v. Jones, 340 F.2d 901, 904 (5 Cir. 1965). Rather, the union contends that this statutory cause of action to invalidate an election and to obtain a new one is analogous to the common law quo warranto proceeding; therefore, it contends, the Seventh Amendment to the United States Constitution guarantees the right to jury trial.
Assuming that a jury trial were available in a quo warranto proceeding at common law,*fn4 the instant action is not the equivalent of quo warranto but is entirely equitable in nature. Wirtz v. District Council No. 21, Bhd. of Painters, Decorators and Paperhangers of America, 211 F. Supp. 253 (E.D. Pa. 1962). Quo warranto was a remedy against usurpation of a public office or privilege granted by the state. See, e.g., State ex rel. Morris v. Bulkeley, 61 Conn. 287, 23 A. 186 (1892); 44 Am. Jur., Quo Warranto, § 6 (1942). Courts have permitted its use to challenge the right to office in corporations on the ground that corporations exist by virtue of franchises from the state and usurpation of a corporate office is therefore usurpation of a privilege granted by the state. See State ex rel. Wilcox v. Curtis, 35 Conn. 374 (1868); 44 Am. Jur., Quo Warranto, § 35 (1942). But while unions are regulated by the state and receive certain protections, they are unincorporated associations and do not depend upon a franchise from the state for their existence. Thus, at common law quo warranto would have been inappropriate to challenge a union election.
Furthermore, a proceeding pursuant to Section 402 is not merely to determine whether the alleged winners of the union election have a right to hold office. It is an integral part of the remedy provided by Congress that the court "direct the conduct of a new election under supervision of the Secretary and, so far as lawful and practicable, in conformity with the constitution and bylaws of the labor organization." Section 402(c).
Cases cited by the union such as Dairy Queen, Inc. v. Wood, 369 U.S. 469, 8 L. Ed. 2d 44, 82 S. Ct. 894 (1962), and Beacon Theatres, Inc. v. Westover, 359 U.S. 500, 3 L. Ed. 2d 988, 79 S. Ct. 948 (1959), standing as they do for the proposition that the right to jury trial on legal claims is not lost by the combination of such claims with equitable claims, are inapposite here where no part of the relief sought can be construed as legal rather than equitable.
We therefore hold that the district court properly struck the union's demand for trial by jury.
The National Maritime Union of America, consisting of about 47,500 members, is organized on a national basis. It has no locals although it has subdivisions known as branches and port offices. These branches and port offices are headed by a branch agent or field patrolman elected by the entire national membership. In the 1966 election, thirteen branch agents and thirteen field patrolmen were elected. In addition to these officers, eight so-called national officers were elected: a national president, a secretary-treasurer, three vice-presidents, and three national representatives. Thus, there were thirty-four positions on the ballot. Joseph Curran ran unopposed for president as did the candidates for national representative. There was a contest for the office of secretary-treasurer. There were four candidates for the three vice-presidencies. Eight of the candidates for branch agent were unopposed. Eighteen men sought the thirteen field patrolmen positions.
Upon the complaint of several union members who had exhausted their remedies within the union, the Secretary of Labor challenged numerous aspects of the nominating procedure in the 1966 election. The district court, however, upheld the Secretary only with respect to what it found to be a requirement enforced against anti -administration candidates that they personally obtain the official nominating forms and necessary endorsements of fellow members. The court held that the requirement violated Section 401(e) in three ways. First, the requirement in itself deprived union members of a reasonable opportunity to nominate and support candidates, particularly in view of the fact that many members served on ships at sea with less than the one hundred members needed to endorse a candidate for a national office. Second, the requirement was not uniformly imposed since only anti-administration candidates were obliged personally to secure the forms and endorsements. Third, the requirement, and therefore the conduct of the election, failed to comply with the union's own constitution ...