# Timothy A. Brown v. Robert J. Lowen, F. Elwood Kyser, and International Organization of Masters, Mates, and Pilots

> Court of Appeals for the Fourth Circuit · September 14, 1988 · 857 F.2d 216

URL: https://www.frixlaw.com/law-library/cases/9478153

## Case

- **Full name:** Timothy A. BROWN, Plaintiff-Appellee, v. Robert J. LOWEN, F. Elwood Kyser, and International Organization of Masters, Mates, and Pilots, Defendants-Appellants
- **Court:** Court of Appeals for the Fourth Circuit
- **Decided:** September 14, 1988
- **Citations:** 857 F.2d 216; 113 A.L.R. Fed. 781; 129 L.R.R.M. (BNA) 2363; 1988 U.S. App. LEXIS 12324; 1988 WL 94109
- **Precedential status:** Published
- **Opinion:** Dissent by Hall
- **Judges:** Russell, Widener, Hall
- **Cited by:** 5 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9478153

## Opinion text

K.K. HALL, Circuit Judge,
dissenting:
I cannot agree with the majority that IOMPP has failed to comply with its duty to honor a reasonable request by a candidate for union office. In my view, a request for mailing that conflicts with the established internal procedures of a union is per se unreasonable unless the union’s procedures are shown to be unfair or discriminatory. By affirming the district court’s contrary conclusion, the majority has today adopted an unduly restrictive interpretation of the Labor Management Reporting and Disclosure Act (“LMRDA” or “the Act”) that is inconsistent with the statutory purpose and in clear conflict with the decisions of two of our sister circuits.
As the majority correctly recognizes, the Act implements Congress’ clearly expressed desire to promote “union democracy.” I further agree that, as a corollary to that goal, the statute prohibits undue electoral discrimination in favor of incumbents. Democracy, however, is not a standardless expression of majority rule but, rather, a system of ordered liberty in which the will of the electorate is determined through fair and equitable procedures. In this case there has been no finding or even persuasive suggestion that IOMPP’s election procedures limiting candidate mailings until after the formal nomination process is unfair, discriminatory, or provides any undue advantage to incumbents. The majority, as did the district court, has concluded, however, that the fairness of the union’s rules is irrelevant and that the reasonableness of a would-be candidate’s request is to be assessed solely by examining the request itself. 1 In my view that approach is not only simplistic but also threatens the broader goals of the Act.
In the first instance, the reasonableness of any action requires consideration of the underlying factual context. A request to light a candle in a darkened room may seem eminently reasonable if examined in isolation but when the same request is made in a room filled with gas fumes, the reasonableness is substantially diminished. While appellee Brown’s request that the union mail his campaign literature without regard to its established procedure may have carried less explosive potential, the *220 request was nonetheless a clear threat to the union’s ability to organize its own internal affairs.
The Supreme Court has recognized that the LMRDA was not intended to “undermine union self-government.” United Steelworkers of America v. Sadlowski, 457 U.S. 102, 117 , 102 S.Ct. 2389 , 2348, 72 L.Ed.2d 707 (1982). Moreover, the Court noted that although incumbency carries certain undoubted natural advantages, it should not be overstated. Id. at 114 , 102 S.Ct. at 2347 . Logically, the Act does not sanction judicial intrusion into union internal matters unless the union has unfairly distorted the normal democratic process to favor incumbents. I can see no indication that IOMPP’s rules which appellee seeks to avoid would accomplish that end.
Both the Third Circuit in Donovan v. Metropolitan District Council of Carpenters, 797 F.2d 140 (3d Cir.1986), and the Ninth Circuit in Marshall v. Provision House Workers Union, Local 274, Amalgamated Meat Cutters and Butcher Workers, 623 F.2d 1322 (9th Cir.1980), have concluded that a candidate’s compliance with reasonable nondiscriminatory union procedures is relevant to whether a mailing request is itself reasonable. I would agree completely with the Donovan court that fair uniform rules which avoid even the “appearance of disparate treatment” and minimize the likelihood of “needless judicial second guessing,” Donovan, 797 F.2d at 144 , are not to be treated lightly in judicial proceedings.
In contrast to the salutary doctrine developed in the Third and Ninth Circuits, the majority has concluded that unions are without power to structure their own electoral process even when that process serves the Act’s broader purposes of promoting union democracy. I cannot accept that section 481(c) of the statute requires such an irrational result. 2 Accordingly, I would reverse the district court and, therefore, I respectfully dissent from the majority’s decision.
. Contrary to the majority’s suggestion, the union has sought to argue that appellee’s request for mailing was unreasonable. The union simply bases its argument, in a broader context, than the majority is willing to consider.
. I find little significance in the fact that the Secretary of Labor has taken a position in this case similar to that articulated by the majority. While the views of the administrative agency to which statutory enforcement is entrusted are entitled to some deference, we need not accept those views blindly. In this instance, the Secretary’s position is not only contrary to reasonable statutory interpretation, it is also arguably in conflict with his own regulations. At 29 C.F.R. § 452.67 , the Department of Labor clearly envisions that distribution of campaign literature may be subject to rules governing the methods of distribution and requires the union to inform all candidates of the nature of those conditions. The Secretary’s instant position renders any such distribution rules superfluous.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9478153. Public record. Not legal advice.