Petition — Steelworkers v. Usery

No. .. 75-657

— m

IN THE . pre Muri. | '

Supreme Court of the United States _

: 2 its

October Term, 1975 2 EL R

LOCAL 3489, UNITED STEELWORKERS Or

AMERICA, AFL-CIO and UNITED STEEL-

WORKERS OF AMERICA, AFL-CIO,

Petitioners,

V.

PETER J. BRENNAN, SECRETARY OF

LABOR, Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

SEVENTH CIRCUIT

BERNARD KLEIMAN

CARL B. FRANKEL

ALFRED E. LAWSON

Five Gateway Center

Pittsburgh, Pennsylvania 15222

BREDHOFF, CUSHMAN, GOTTESMAN

& COHEN

1000 Connecticut Avenue, N.W.

Washington, D. C. 20036

Attorneys for Petitioners.

SMITH BROS... LAW PRINTERS, 620 SECOND AVENUE, PITTSBURGH, PA ts

PAGE

e — 2

,, Sa 2

r ERE Nao a ae EN 2

Statute Involved .................... 1 3

r . ALN PT PRO 4

Reasons for Granting the Writ 8

D ũ ꝶ nn 16

CITATIONS

Cases:

Brennan v. Local Union No. 639, International Broth-

erhood of Teamsters, 494 F.2d 1092 (D. C. Cir.

r a SI, IE AE. 15

Brennan v. Local 3911, United Steelworkers of

America, 372 F.Supp. 961 (N.D. III. 1973 15

Brennan v. Local 5702, United Steelworkers of

America, Civ. Act. No. 73-3272 (E.D. La.) 10

Brennan v. Local 5724, United Steelworkers of

America, 489 F.2d 884 (6th Cir. 19733) 7,11

Shultz v. Local 1150, United Steelworkers of Amer-

ica, 75 LRRM 2869 (S.D. Ind. 1970), vacated on

other grounds (No. 71-1467, 7th Cir. July 1971,

r cite iceiceeinaniaietila ieeesctenensinlibins 10

Shultz v. Local 1299, United Steelworkers of Amer-

ica, 324 F.Supp. 750 (E.D. Mich. 1979), aff'd in

rt, sub nom., Hodgson v. Local 1299, United

teelworkers of America, 453 F.2d 565 (6th Cir.

e 10

Shultz v. Local Union 6799, 71 LRRM 2820 (C.D.

Cal. 1969), aff'd on other grounds, 426 F. 2d 969

(9th Cir. 1970), aff'd sub nom., Hodgson v.

Loca! 6799, United Steelworkers of America,

403 US. 333 (1971) EAS ES ST LINE EE AEE: 8, 9, 10

Wirtz v. Hotel, Motel & Club Employees Union,

Local 6, 391 U.S. 492 (1968))))) passim

Statutes:

, e ee 2

Labor Management Reporting and Disclosure Act of

1959, 73 Stat. 519, 29 U.S.C. $401, et seed 1 2, 3

Sec. 401, 29 U.S.C. 848 11 3 —*ð§“õn 10

In THE

Supreme Court of the United States

October Term, 1975

No.

LOCAL 3489, UNITED STEELWORKERS OF

AMERICA, AFL-CIO and UNITED STEEL-

WORKERS OF AMERICA, AFL-CIO,

Petitioners,

V.

PETER J. BRENNAN, SECRETARY OF

LABOR, Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

SEVENTH CIRCUIT

Local 3489, United Steelworkers of America, AFL-

CIO and United Steelworkers of America, AFL-CIO pray

that a writ of certiorari issue to review the judgment

of the United States Court of Appeals for the Seventh

Circuit entered in this case.

Opinions Below.

OPINIONS BELOW

The opinion of the court of appeals is reported at

520 F.2d 516 and is reproduced in the Appendix to this

petition at App. la-15a.! The opinion of the district

court is unreported and is reproduced in the Appendix

to this petition at App. 17a-22a.

JURISDICTION

The judgment of the court of appeals was entered

on August 5, 1975 (App. 16a). This Court has jurisdic-

tion to review the judgment herein by writ of certiorari

under 28 U.S.C. §1254(1).

QUESTION PRESENTED

Whether a union’s rule requiring that a candidate

for local union office have attended half (1) the regular

monthly meetings held in the three years preceding

nominations is a “reasonable qualification” for candi-

dacy within the meaning of the Labor Management Ke-

porting and Disclosure Act of 1959, where attendance

is not difficult for any member and any member may

qualify simply by devoting two hours «ery other month

to union affairs.

1. The Appendix to this petition is separatel

nated and is referred to herein as “App.” *

Statute Involved.

STATUTE INVOLVED

The statute involved is the Labor Management Re-

porting and Disclosure Act of 1959, 73 Stat. 519, 29

U.S.C. §401, et seq., in particular, Section 401 of chat

Act, 2 * S.C. §481 which, in relevant part, reads as fol-

lows:

TERMS OF OFFICE; ELECTION PROCEDURES

“Sec. 401. (b) Every local labor organization

shall elect its officers not less often than once every

three years by secret ballot among the members in

good standing.

— * 7

“(e) In any election required by this section

which is to be held by secret ballot a reasonable

opportunity shall be given for the nomination of

candidates and every member in good standing shall

be eligible to be a candidate and to hold office (sub-

ject to section 504 and to reasonable qualifications

uniformly imposed) and shall have the right to vote

for or otherwise support the candidate or candi-

dates of his choice, without being subject to penalty,

discipline, or improper interference or reprisal of

any kind by such organization or any member there-

of. . . . The election shall be conducted in accord-

ance with the constitution and bylaws of such or-

ganization insofar as they are not inconsistent with

the provisions of this title.”

Statement of the Case.

STATEMENT OF THE CASE

The Secretary of Labor and the United Steelworkers

of America, AFL-CIO (herein called “Steelworkers” )

have been engaged in continuous litigation over the val-

idity of the Steelworkers’ meeting attendance rule ever

since the 1967 elections for local union officers. With

each new round of Steelworker Local elections — more

than five thousand conducted every three years — a

spate of new lawsuits emerges. The present action, in-

volving Steelworker Local 3489, is part of the crop which

grew out of the 1970 elections.

The case began when, following the June 22, 1970

election of local union officers and after exhausting in-

ternal union remedies, one of two defeated candidates

for president of the Local, though himself eligible, filed

a complain* with the Secretary of Labor asserting, inter

alia, that the meeting attendance rule was unreason-

able.2 Thereafter and within the time permitted by the

statute, the Secretary instituted this action against

Local Union 3489 under Title IV of the Labor Manage-

ment Reporting and Disclosure Act of 1959 (LMRDA)

seeking to set aside the June 22, 1970 election. The com-

plaint alleged that the election was void because the

Local had applied the meeting attendance rule and be-

cause of a “secret ballot” violation, not material here.

The Steelworkers, as parent international union, inter-

vened as a party defendant.

The membership of Local Union 3489 is composed

of production and maintenance employees of the Stran

2. In 1973, the complainant won the presidency of

Local 3489 in an election conducted under the Steel-

workers’ meeting attendance rule (App. 3a).

Statement of the Case.

Steel Corporation in Terre Haute, Indiana. At the time

of the June, 1970 election, there were approximately

660 members employed at the plant (App. 2a). The

Local’s meetings were held in a union hall located three

miles and within a ten-minute automobile ride from the

plant. In conducting the election, Local 3489 applied an

eligibility requirement prescribed by the Steelworkers’

constitution and applicable to all Steelworker Locals.

Under that requirement, no member is eligible to hold

local union office unless:

“He has attended at least one-half (14) of the

regular meetings of his Local Union for thirty-six

(36) months previous to the *** election, unless

his Union activities or working hours prevented

his attendance” (App. 19a).

There were twenty-three members in the Local who were

eligible to hold office. Of these twenty-three, less than

half were incumbent officers. Two nominees were in-

formed that they were ineligible because they had not

attended a sufficient number of union meetings. Six for-

mer officers won reelection either to the same or some

other office. Non-incumbents were elected to the impor-

tant offices of Vice President, Recording Secretary and

Treasurer and to one minor office.

Upon a largely stipulated record, the district court

held that the Steelworkers’ meeting attendance rule was

a reasonable qualification for holding office within the

meaning of 5401 (e) of the LMRDA. In doing so, it

agreed with four district courts and with a decision of

the United States Court of Appeals for the Sixth Circuit.

Without exception, all had declared the Steelworkers’

meeting attendance rule a reasonable requirement un-

der the statute. The district court readily distinguished |

Reasons for Granting the Writ.

REASONS FOR GRANTING THE WRIT

The candidate qualification issue involved in this

case raises a question of national importance in the

administration of LMRDA on which this Court previous-

ly granted certiorari in Hodgson v. Local 6799, United

Steelworkers of America, 403 U.S. 333 (1971) but did

not decide there because of its holding on the threshold

issue of exhaustion under the Act. A conflict over the

candidacy issue has now developed between the circuits.

Thus, the Seventh Circuit’s instant opinion with respect

to the Steelworkers’ meeting attendance rule is directly

contrary to the Sixth Circuit’s decision in Brennan v.

Local 5724, United Steelworkers of America, 489 F.2d

884 (6th Cir. 1973). Moreover, this division reflects a

fundamental difference over the application of the elec-

tion provisions of the Act and over the meaning of this

Court’s decision in Wirtz v. Hotel, Motel & Club Em-

pioyees, Local 6, 391 U.S. 492 (1968). We briefly expand

on these points below.

The Steelworkers’ meeting attendance candidate

eligibility requirement is imposed by the International’s

constitution on each of its 5,200 Locals. The rule is thus

national in scope and reaches approximately 1,400,000

Steelworker members. Meeting attendance rules are not

unique to the Steelworkers, however. Indeed constitu-

tions of international unions having twenty-five per cent

of all of America’s union members impose meeting at-

tendance requirements as a candidacy qualification for

local union office and countless local unions who have

been left the option by their international are likely to

have adopted such a requirement on their own. The

Secretary of Labor himself has in the past urged this

Court to decide the substantive issue raised by the meet-

7

Reasons for Granting the Writ.

ing attendance qualification [because of its national

importance in the administration of the Act. and

because it involves basic principles under the Act.“

The rule in its present form was first applied in the

1967 Steelworker local union elections. It has since be-

come the largest single source of litigation under the

Act. Moreover, given the Secretary’s case-by-case ap-

proach, and now that there is one decision which finds

the rule invalid, it is reasonable to expect a deluge of

lawsuits to descend upon the courts after the 5,200 up-

coming Steelworker local union elections.

In early 1968, the Secretary instituted eight sepa-

rate lawsuits in cases growing out of the 1967 elections.

In each he injected a challenge to the meeting attendance

rule, even where no member had protested the rule in-

ternally. Accordingly, when the meeting attendance rule

first came before this Court in Local 6799, it came not

alone but with another important issue—exhaustion.

Moreover, once this Court ruled that exhaustion re-

quirements barred the Secretary from litigating the

matter, it had no reason to reach the question of the

reasonableness of the rule itself. 403 U.S. at 341.

In the meantime, both before and after Local 6799,

the courts which did reach the merits were unanimous

in upholding the Steelworkers’ meeting attendance quali-

fication.5 Local 5724 was the first court of appeals case

4. Pages 14-15 of the government’s Petition for a

Writ of Certiorari to the United States Court of Appeals

for the Ninth Circuit filed in Hodgson v. Local 6799,

United Steelworkers of America, 403 U.S. 333 (1971).

5. Brennan v. Local 5724, United Steelworkers of

America, 489 F.2d 884 (6th Cir. 1973); Shultz v. Local

Union 6799, 71 LRRM 2820 (C.D. Cal. 1969), aff'd on

10

Reasons for Granting the Writ.

Decidin

sega the matter.“ The Secretary of Labor, how-

ever, did not seek certiorari from the Sixth Circuit’s

decision upholding the reasonableness of the rule but

continued instead to litigate the issue in other cases

including the present one.7 Now, with the Seventh Cir-

cuit’s Jecision, there is a direct conflict between circuits.

The Sixth Circuit, in declaring the meeting attend-

ance requirement reasonable in Local 5724, looked to the

real cause of the disqualification. Under the Steel-

workers’ rule, it was the member himself. To qualify,

all any member had to do was devote about two hours

to union affairs every other month—attending a regu-

larly scheduled meeting in a union hall just a few

minutes drive from the plant (App. 31a-32a). This stood

in marked contrast to the restriction in Hotel Employees

which limited eligibility to members who had previously

held office. Under such a requirement, members who

wanted to qualify were prevented from doing so.

Other grounds, 426 F.2d 969 (9th Cir. 1970), aff'd sub

nom., Hodgson v. Local 6799, United Steelworkers, of

America, 403 U.S. 333 (1971); Shultz v. Local 1299,

United Steelworkers of America, 324 F.Supp. 750 (E.D.

Mich. 1970), aff'd in part, sub nom., Hodgson v. Local

1299, United Steelworkers of America, 453 F.2d 565 (6th

Cir. 1971) ; SHT v. Local 1150, United Steelworkers of

America, 75 LRRM 2869 (S.D. Ind. 1970), vacated on

other grounds (No. 71-1467, 7th Cir. July 1971, un-

reported ).

6. Two years earlier, the same circuit had turned

down the Steelworkers’ nlea for a ruling on the merits.

Hodgson v. Local 1299, United Steelworkers of America,

453 F.2d 565, 575 (6th Cir. 1971).

7. Another pending case is Brennan v. Local 5702,

United Steelworkers of America, Civ. Act. No. 73-3272

(E.D. La.) where both parties have filed motions for

summary judgment.

11

Reasons for Granting the Writ.

“Unlike the Hotel Employees’ bylaw, the Steel-

workers’ rule disqualified no one. Every member

can qualify by the relatively unburdensome step of

devoting a few hours per month to the affairs of his

Union. Steelvorkers disqualify themselves as a mat-

ter of free choice by their unwillingness to devote a

few hours per month to Union affairs. . every

member could have qualified merely by attending

one-half of the meetings” (App. 33a).

Of course, if the rule was such that eligibility was

beyond the members’ control, as in the case of the Hotel

Employees prior office holding requirement, and the

rule’s impact was to limit eligibility to a handful of

candidates, then it would not pass muster under the

Sixth Circuit’s construction of the statute.§ Put another

way, as the Sixth Circuit reads Hotel Employees, that

case does not establish a blind doctrine under which once

a magic percentage of members is rendered ineligible,

an otherwise valid eligibility requirement suddenly be-

comes unlawful even though the requirement serves

legitimate union objectives and, by itself, disqualifies no

one (App. 33a).

Unlike the Sixth Circuit in Local 5724, the Seventh

Circuit in the present case, draws no distinction between

rules under which members disqualify themselves by

failing to take unburdensome steps, and rules under

which eligibility is beyond the member’s control. In the

8. Statistical impact does not matter where eligi-

bility is in the hands of the members themselves. Thus,

in upholding the Steelworkers’ rule, the Sixth Circuit

assumed that as many as 93 per cent of the members

were ineligible (App. 32a).

12

Reasons for Granting the Writ.

Seventh Circuit's view, Hotel Employees means that any

rule which disqualifies 96.5 per cent of the local union's

membership cannot be deemed a reasonable qualification

under the statute.

“Later in the Hotel Employees opinion, Justice

Brennan observed that because the objective of

Title IV of the Act (29 U.S.C. 8481-483) is to in-

sure free and democratic elections, it was plain that

a candidacy limitation rendering 939% of union mem-

bers ineligible for office ‘can hardly be a reasonable

qualification.’ 391 U.S. at 502. Here the meeting at-

tendance rule disqualified 96.5°> of the Local

Union’s membership from office, so that it cannot

be deemed a reasonable qualification either. We need

not decide whether the 18 of 36 rule is per se un-

reasonable because its effect of severely restricting

the number of potential candidates for union office

shows it to be clearly unreasonable in this case.

“Of course, if a very high percentage of the

membership is disqualified from seeking union

office by a rule, as was the situation here, that fact

alone may justify a finding that the rule is un-

reasonable” (App. 7a-8a).

9. If, as the Seventh Circuit holds, percentages are

determinative, the Steelworkers are confronted by an

impossible administrative burden. There is no feasible

way the union can establish in advance which of its 5,200

Locals may apply the rule and which may not. The

adoption of an arbitrary minimum percentage eligibility

figure will leave the Steelworkers no choice but to

abandon the meeting attendance rule altogether at a

sacrifice of the substantial values which it believes are

served by the rule.

13

Reasons for Granting the Writ.

In addition to the fundamental difference described

above, the Sixth Circuit and Seventh Circuits are also

at odds over subsidiary issues. One such issue involves

the purposes of the meeting attendance rule. The Sixth

Circuit readily endorsed the trial court’s factual finding

that the rule was adopted for the following purposes:

“*(1) To encourage broad base participation

in the affairs of the union, and to obtain as

large a turnout as possible at the meetings at

which the union's business is conducted.

‘(2) To attempt to assure that candidates

have demonstrated an interest in and are likely

to be concerned with the problems of the union.

(3) To attempt to insure that candidates

have participated in the affairs of the union

and are, therefore, sufficiently familiar with its

problems to be able more intelligently to fulfill

the numerous responsibilities and duties at-

tendant to holding office“ (App. 37a-38a).

The Seventh Circuit, though presented with similar

findings by the trial court, 10 treated them as arguments

rather than as findings of fact and rejected them on the

ground that similar contentions had been rejected in

Hotel Employees. The court of appeals further discount-

ed the purposes of the rule, observing that based on facts

in evidence, it would conclude that the rule had failed to

10. “The meeting attendance qualification on the

other hand is designed to (1) insure that candidates

have demonstrated an interest in union affairs prior to

election and are therefore likely to continue to do so, if

elected, and (2) that candidates will, if elected, be able

to more knowledgeably fulfill their duties” (App. 20a-

21a)

14

Reasons for Granting the Writ.

achieve one of its goals, increased meeting attendance,

and was unnecessary to insure another, competent union

leadership (App. lla).

The other matter which divided the circuits was

the Secretary's interpretive manual. The Sixth Circuit

concluded that the Secretary's position in the lawsuit

was not consistent with the relevant provisions of his

own published LMRDA interpretive manual in effect at

the time the challenged election was conducted. That

manual generally supported qualifications designed to

assure that candidates had participated in union affairs

and specifically sanctioned fifty per cent attendance

requirements over one and two year periods. It was

dificult for the Sixth Circuit “to see any significant

difference for a meeting attendance requirement cover-

ing a period of three years. These regulations, although

later amended by the Secretary, were in effect when the

dispute here arose” (App. 35a).

The Seventh Circuit, however, was unpersuaded by

this argument. The short answer, said that court, was

that the manual was now obsolete, having been revised

by the Secretary in 1973. In any event, the Steelworkers’

three-year rule was fifty per cent harsher as to the num-

ber of meetings a member must attend and as to the time

limitations imposed on his decision to seek office. A two-

year rule, concluded the court, does not determine the

reasonableness of a three-year rule (App. 9a-10a).

Needless to say, petitioners agree with the Sixth

Circuit's application of the statute and with its analysis

of this Court’s opinion in Hotel Employees. We also agree

with the decisions of those district courts which have

actually passed upon the merits of the meeting attend-

ance rule and in each case, found it a reasonable require-

15

Reasons for Granting the Writ.

ment.!! But whether one sides with the Sixth Circuit or

with the Seventh Circuit, all must agree that so long as

the conflict between them remains unresolved, the Steel-

workers, in administering 5,200 forthcoming local union

elections and the Secretary of Labor, in administering

the election provisions of the Act, both face an impos-

sible dilemma.

11. See cases cited in footnote 5. One district court,

in dictum would have found the rule unreasonable.

Brennan v. Local 3911, United Steelworkers of America,

372 F.Supp. 961 (N.D. Ill. 1973), cited with approval in

Brennan v. Local Union No. 689, — Brother-

hood of Teamsters, 494 F.2d 1092, 1099-1100 (D. C. Cir.

1974).

16

Conclusion.

CONCLUSION

For the reasons set forth hereinabove, the petition

for a writ of certiorari should be granted.

Respectfully submitted,

BERNARD KLEIMAN

CARL B. FRANKEL

ALFRED E. LAWSON

Five Gateway Center

Pittsburgh, Pennsylvania 15222

BREDHOFF, CUSHMAN, GOTTESMAN & COHEN

1000 Connecticut Avenue, N.W.

Washington, D.C. 20036

Attorneys for Petitioners

APPENDIX

IN THE

UNITED STATES COURT OF APPEALS

For THE SEVENTH CIRCUIT

No. 74-1639

PETER J. BRENNAN, Secretary of Labor,

— Plaintiff-Appellant,

V.

LOcAL 3489, UNITED STEELWORKERS Or AMERICA, AF L-

CIO, and UNITED STEELWORKERS OF AMERICA, AFL-CIO,

Defendants-A ppellees.

Appeal from the United States District Court for the

Southern District of Indiana—No. TH 70 C117

JAMES E. NOLAN, Judge.

HEARD APRIL 3, 1975—DECIDED

AUGUST 5, 1975

Before CUMMINGS and PELL, Circuit Judges, and

Perry, Senior District Judge.“

CuMMINGS, Circuit Judge. The Secretary of Labor

filed this action for declaratory and injunctive relief

pursuant to Title IV of the Labor Management Report-

ing and Disclosure Act (‘‘Act” or “LMRDA”’), 29 U.S.C.

401 et seq. The complaint alleged that a June 22, 1970,

election of officers of defendant union! was void because

*Senior District Judge J. Sam Pe of the North-

ern District of Illinois was sitting by designation.

1. Local 3489, United Steelworkers of America,

AFL-CIO. Subsequently the parent international union,

United Steelworkers of America, AFL-CIO, intervened

as an additional defendant.

2a

Appendiz.

the union had failed to elect its officers by secret ballot

and had imposed an unreasonable candidacy qualifica-

tion, thus violating Sections 401(b) and 401(e) of the

Act.? The district judge disagreed and dismissed the

complaint. We reverse.

The membership of the Union is composed of the

production and maintenance employees of the Stran

Steel Corporation of Terre Haute, Indiana. At the time

of the election, there were 660 members in good stand-

ing eligible to vote. However, pursuant to rules of the

Local Union and its parent, the following requirements

were established for eligibility for office in the Local:

1. Membership in good standing for 24 months

immediately preceding the election;

2. Employment in a place within the jurisdiction

of the Local Union;

2. Section 401(b) (29 U.S.C. § 481(b)) provides:

“Every local labor organization shall elect its

officers not less often than once every three years

by secret ballot among the members in good stand-

ing.“

In pertinent part, Section 401 (e) (29 U.S.C. 8

481 (e)) provides:

In any election required by this section which

is to be held by secret ballot a reasonable oppor-

tunity shall be given for the nomination of candi-

dates and every member in good standing shall

be eligible to be a candidate and to hold office

(subject to section 504 of this title and to reason-

able qualifications uniformly imposed) and shall

have the right to vote for or otherwise support the

candidate or candidates of his choice, without be-

ing subject to penalty, discipline, or improper in-

terference or reprisal of any kind by such organi-

zation or any member thereof.”

3a

Appendiz.

3. Attendance at least at 18 of the 36 reguiar

monthly meetings preceding the election unless

union activities or working hours prevented

attendance.

The third requirement was dictated by the following

provision of the International Union’s constitution:

“No member shall be eligible for election as a

Local Union Officer or Grievance Committeeman

unless

“He has attended at least one-half () of the

regular meetings of his Local Union for thirty-six

(36) months previous to the * * * election unless

his Union activities or working hours prevented his

attendance.” (Article VII, Sec. 9.)

From June 1967 to May 1970, the Local Union con-

ducted 36 monthly meetings, with an average attendance

of 47 members per meeting. As a result of the meeting

attendance rule, 96.50% of the Local Union’s membership

was ineligible to hold office. Ten of the 23 members who

were found eligible were incumbent office holders. Fol-

lowing the May 17, 1970, nomination meeting, two of the

nominees were informed that they were ineligible for

union office because they had attended an insufficient

number of union meetings. Ultimately, there were only

13 candidates on the ballot running for ten offices and

six of these candidates ran unopposed.

After the June 22, 1970, election of officers, Bernard

Frye,* a defeated candidate for the presidency, filed a

3. Frye was ultimately elected president of the

Local Union on June 12, 1973, and at the time of the

filing of the briefs here was serving in that capacity.

Although neither party has raised the question of moot-

4°

Appendiz.

protest with the Local Union, claiming that the meeting

attendance rule was unreasonable and that the vote had

not been by secret ballot. The Union denied his protest

and he appealed to the International Union's executive

Board. Because his protest was not acted upon by the

Executive Board within three months (29 U.S.C. § 482

(a)(2)), Frye filed a written complaint with the

Secretary uf Labor, prompting the present litigation.

The district court filed an unreported memorandum

opinion in favor of defendants. In its opinion, the court

stated:

ness on appeal or in the court below, the mere recita-

tion of the fact that the complainant as to the 1970

election eventually won the office which he sought then

and is now serving in that capacity is sufficiently sug-

gestive of mootness problems to merit a brief discussion

by this Court.

In Wirtz v. Local 153, Glass Bottle Blowers Ass’n,

389 U.S. 463, the Supreme Court held that where the

Secretary of Labor has proved a Section 401 violation

that may have affected the outcome of an election, an

intervening unsupervised election for the same offices

does not deprive the Secretary of the right to a court

order voiding the challenged election and directing that

a new election be held under his supervision. There ap-

pears to be no substantial reason for distinguishing

this case on the grounds that the complainant him-

self has secured the office in the second election that

he sought in the challenged election. Thus if the June

12, 1973, election was unsupervised, this case is on all

fours with Glass Bottle Blowers and clearly not moot.

Our review of the transcript of the hearing below leads

us to believe that the Secretary did not supervise the

June 12, 1973, election. It is therefore unnecessary to

decide whether this case would be moot if a super-

vised election had been held since the challenged elec-

tion. See Brennan v. Silvergate District Lodge No. 50,

503 F.2d 800, 803-804 (9th Cir. 1974).

5a

Appendiæ.

“The meeting attendance qualification is

designed to (1) insure that candidates have demon-

strated an interest in union affairs prior to election

and are therefore likely to continue to do so, if

elected, and (2) that candidates will, if elected, be

able to more knowledgeably fulfill their duties.“

Therefore, the court concluded that the meeting attend-

ance rule was a reasonable qualification within the

meaning of Section 401(e) of the Act (note 2, supra).

The court also held that the Union’s failure to provide

voting booths or other means of insuring secrecy during

the voting did not violate Section 401(b) of the Act

(idem), emphasizing that “the evidence did not indicate

that the lack of a voting booth [subsequently acquired

by the local union] or similar apparatus for secret vot-

ing may have affected the outcome of the election.

Reasonableness of Attendance Requirement

As noted, a member of the defendant union is not

eligible for election to office unless he has attended 18 of

the 36 regular monthly meetings preceding the election,

unless union activities or working hours prevented at-

tendance. This requirement must be tested in light of

Section 401(e) of the Act, which makes “every member

in good standing” eligible for office, subject to Section

504 of the Act “and to reasonable qualifications uni-

formly imposed.” Section 504 prohibits members of the

Communist Party and persons convicted of certain

crimes from holding office unless certain conditions are

met (29 U.S.C. § 504). This provision is not involved in

this appeal. Further narrowing the issue, the Secretary

does not seriously contend that the 18 of 36 rule was not

uniformly applied. Thus the question before us is

whether the meeting attendance rule is a reasonable

qualification. We hold that it is not.

Appendiz.

The construction of Section 401(e) was also before

us in Brennan v. Independent Lift Truck Builders Union,

490 F.2d 213, 217 (7th Cir. 1974). Applying the admoni-

tion in Wirtz v. Hotel, Motel & Club Employees Union,

Local 6, 391 U.S. 492, 499, that “Congress plainly did not

intend that the authorization in § 401 (e) of ‘reasonable

qualifications uniformly imposed’ should be given a

broad reach,” we held that it would not be a reasonable

qualification to bar a member from eligibility for office

where he was discharged by an employer and was

actively contesting the discharge.

In Hotel Employees, the Supreme Court struck down

a union by-law which required major office-holders to be

selected from members who had previously been office-

holders. To support this conclusion, the Court relied on

the legislative history of Section 401(e) and its wording

that “every member in good standing shall be eligible

to be a candidate and to hold office * * *.” In so ruling,

the Court stated:

“This conclusion is buttressed by other pro-

visions of the Act which stress freedom of members

to nominate candidates for office. Unduly restrictive

candidacy qualifications can result in the abuses of

entrenched leadership that the LMRDA was ex-

pressly enacted to curb. The check of democratic

elections as a preventive measure is seriously im-

paired by candidacy qualifications which substan-

tially deplete the ranks of those who might run in

opposition to incumbents.” 391 U.S. at 499.4

4. Note 8 has been omitted from the foregoing

quotation; it cited 29 U.S.C. S8 481 (e) and 411(a) (1)

as provisions stressing members’ freedom to nominate

candidates.

7a

Appendiæ.

Later in the Hotel Employees opinion, Justice Bren-

nan observed that because the objective of Title IV of the

Act (29 U.S.C. §§ 481-483) is to insure free and demo-

cratic elections, it was plain that a candidacy limitation

rendering 930% of union members ineligible for office

“can hardly be a reasonable qualification.” 391 U.S. at

502. Here the meeting attendance rule disqualified

96.50% of the Local Union’s membership from office, so

that it cannot be deemed a reasonable qualification

either. We need not decide whether the 18 of 36 rule is

per se unreasonable because its effect of severly restrict-

ing the number of potential candidates for union office

shows it to be clearly unreasonable in this case. Further-

more, we note that of the 23 persons found to hk eligible

for office in the 660-person Local, ten were incumbent

office-holders. Since Section 401(e) was intended to curb

the possibility of abuse by an entrenched leadership,

whether benevolent or not,® a restriction that results in

almost half of those eligible to be candidates in a local

of this size also being incumbent office-holders is surely

suspect.

No particular percentage is accorded talismanic

properties under the Act, so that the courts need not

hold a union rule or combination of rules that fails to

qualify such an arbitrary percentage of members as

potential candidates per se unreasonable. Rather, the

entire fact situation surrounding the election is to be

examined in making the reasonableness determination.

5. Of the Union’s 660 members, one member was

found eligible by a combination of meeting attendance

and work credits, and 22 members were eligible by

virtue of meeting attendance alone. This resulted in

disqualifying 96.50% of the membership at this election.

6. Hotel Employees, supra, at 503.

8a

Appendiz.

See 29 C.F.R. § 452.38 (1974). Of course, if a very high

percentage of the membership is disqualified from seek-

ing union office by a rule, as was the situation here, that

fact alone may justify a finding that the rule is unrea-

sonable. As stated by Judge Tone in Brennan v. Local

38911, United Steelworkers of America, 372 F.Supp. 961,

967 (N.D. II. 1973), in view of its decision in Hotel

Employees, ‘It seems apparent that the Supreme Court

would not regard the Steelworkers meeting attendance

requirement in its present form as a reasonable qualifi-

cation.“

7. In Local 3911, Judge Tone rendered judgment

for defendant union because the plaintiff had not ful-

filled the statutory intra-union exhaustion requirements.

Because of the possibility of reversal by a reviewing

court, the then district judge indicated how he would

have ruled had he reached the merits. Finding the

Supreme Court’s Hotel Employees decision controlling,

he held that the disqualification of 94.7 % of the mem-

bership due to the 18 of 36 rule proved the rule un-

reasonable under Section 401(e). 372 F.Supp. at 967.

This facet of the decision in Local 3911 was cited

with approval in Brennan v. Local Union No. 639, In-

ternational Brotherhood of Teamsters, 494 F.2d 1092,

1099-1100 (D.C. Cir. 1974), where the Court of Ap-

peals for the District of Columbia affirmed the ruling

of the district court that a meeting attendance re-

quirement, which disqualified 97°: of the membership

from potential candidacy, could not be applied in a

coming election. The court noted, but did not follow,

the contrary view expressed in Brennan v. Local 5724,

United Steelworkers of America, 489 F.2d 884 (6th Cir.

1973). Likewise, to the extent that Local 5724 is in-

consistent with our decision here (in Local 5724 only

84.8 were disqualified by the 18 of 36 rule), we re-

spectfully disagree with the Sixth Circuit. Wirtz v.

Local 153, Glass Bottle Blowers Ass’n, 405 F.2d 176

(3d Cir. 1968), on remand from the Supreme Court,

389 U.S. 463, also appears to be in conflict with the

9a

Appendix.

As the district court recognized, the LMRDA “was

expressly enacted to curb the abuses of entrenched

leadership.” The defendants’ meeting attendance rule

perpetuates that abuse on the facts of this case. Be-

cause of the rule, members of the defendant Local

who wish to run against incumbent officers might have

to plan their campaigns 18 months ahead of the tri-

ennial elections in order to acquire 18 attendance credits.

The need for such long-range planning would help to

keep incumbent leaders in office. Unions undoubtedly

have members with the requisite skills to hold office

who have been sufficiently content with the directions

taken by the union leadership for a time so that they

felt no need to participate in routine meetings. Yet the

18 of 36 rule could prevent such members from be-

coming candidates even where they had been attend-

ing all the meetings and actively opposing the policies

of the incumbent officers for over a year. Moreover,

new members can qualify as members in good stand-

ing after two years. However, in order to challenge

incumbents, they would have to attend 18 out of 24

meetings in those two years. Again this requirement

favors incumbents.

Defendants argue that the Secretary’s position con-

tradicts a provision in his manual on the Act.§ The

Sixth Circuit, although in Local 153 the facts involved

a 75‘: attendance requirement over two years that dis-

qualified 97°: of the union membership, so that it might

be distinguished on both the face of the rule and its

practical effect from Local 5724.

8. LMRDA Interpretive Manual § 422.250, which

provided:

“PARTICIPATION IN UNION AFFAIRS”

“Qualifications reasonably designed to assure

that candidates have participated in the affairs

10a

Appendix.

short answer is that the manual is now obsolete. See

29 C.F.R. § 452.38 (1974). In any event, the meeting

attendance rule at issue here disqualified a very high

percentage of the membership from holding office, thus

constituting “special circumstances which cast doubt

upon the validity and reasonableness” of the rule with-

in the guideline expressed in that manual.

Defendants also rely upon Section 422.206 of the

same obsolete manual which provided that a two- year-

50% meeting attendance requirement was not unreason-

able. The Secretary has explicitly abandoned this po-

sition in a new regulation which provides that the

reasonableness of a meeting attendance rule must be

determined “in the light of all the circumstances of

the particular case, including * * * the number or per-

centage of members who would be rendered ineligible

by its application.” 29 C. F. R. § 452.38 (1974). This

regulation therefore reinforces the Secretary's policy

typified by the filing of this lawsuit. Moreover, since

the three-year rule can be 50% harsher as to the num-

ber of meetings which a member must attend to quali-

fy for office and as to the time limitations imposed on

his decision to seek office, the reasonableness of the

two-year rule does not determine the reasonableness of

the three-year rule.

of the union and are sufficiently familiar with the

industry in which the union operates would not

be considered unreasonable in ordinary circum-

stances, if uniformly imposed. In the absence of

knowledge of any special circumstances which cast

doubt upon the validity and reasonableness of any

of the qualifications they are not to be considered

unreasonable in themselves.”

9. Subparagraph (b) of the same regulation sum-

marizes several court decisions holding particular meet-

ing attendance requirements to be unreasonable.

lla

Appendiz.

As in Hotel Employees, defendants attempt to de-

fend their restriction by various argument in its favor.

Thus they assert that they are attempting to insure

that candidates have demonstrated an interest and

concern in union problems and would be sufficiently

familiar with them to fulfill the duties of office. Similar

arguments were rejected in Hotel Employees where

the Court noted that Congress designed Title IV “to

curb the possibility of abuse by benevolent as well as

malevolent entrenched leadership” (391 U.S. at 503).

Defendants also assert that the meeting attendance

rule fosters large turnouts at union meetings. However,

according to the stipulation below, the average meet-

ing attendance of this Union was 47 members out of

660. Such an attendance record would certainly not

justify disqualifying 96.50% of members from holding

oliice.

In the court below, the Secretary showed that

only one other national union has specified a three-

year period during which a member must attend a

specified number of meetings to qualify for candidacy.

Surely this statistic belies defendants’ claim that the

rule in question is necessary to assure competent union

leadership. The right of members to nominate and vote

for candidates of their choice (29 U.S.C. S8 411(a) (1)

and 401(e)) would be seriously diluted if this rule

were to be sanctioned. In our view, it is not a “reason-

able qualification” for office under Section 401(e) of

the Act.

Maintenance of Secret Ballot

The Secretary also argues that this election should

be set aside and a new supervised election ordered

under Section 402(c) of the Act (29 U.S.C. § 482(c))

12a

Appendix.

on the additional ground that this Local Union failed

to elect its officers by secret ballot in violation of Sec-

tion 401(b) of the Act (note 2, supra). As defined in

Section 3(k) of the Act:

“ ‘Secret ballot’ means the expression by bal-

lot, voting machine, or otherwise, but in no event

by proxy, of a choice with respect to any elec-

tion * * * which is cast in such a manner that

the person expressing such choice cannot be iden-

tified with the choice expressed.“ (Emphasis added.

29 U.S.C. § 402(k).)

Under these statutory provisions, unions must run elec-

tions that conform to the democratic principles em-

bodied in the secret ballot mandate. Wirtz v. Local 158,

Glass Bottle Blowers Ass’n, supra note 1, at 471-472.

This election was conducted in a 60 x 20 room.

Several small adjacent rooms were not used, although

available. A small table for marking ballots was placed

three feet in front of an elevated officers’ bench. Two

members of the Election Committee were present

throughout the 6:00 a.m. to 6:00 p.m. election. Most of

the voting occurred during the last two hours of the

day, when the voters were “jammed together * * * elbow

to elbow.” Up to 50 voters were in the room at one

time. Many voters marked their ballots at the aforesaid

table and could see each other's ballots as they were

marked. Others marked their ballots against the walls,

and their markings could also be observed by voters

several feet away. No one was seen carrying a ballot to

the back of the hali to vote, and some members deliber-

ately “flaunted their votes.“ There was no encourage-

ment of any members to take steps to prevent others

from seeing their ballots. Such loose polling procedures

13a

Appendiæ.

violate the secret ballot requirement of the Act. Hodgson

v. United Mine Workers of America, 344 F.Supp. 17, 30

(D.D.C. 1972). There was no observation of the require-

ment of Section 3(k) that votes be cast in such a manner

that the person expressing [his] choice cannot be identi-

fied with the choice expressed.”

Defendants claim that the Secretary's position with

respect to ballot secrecy is inconsistent with his regu-

lation on the subject. 29 C.F.R. S 452.97 (a) (1774) pro-

vides:

“A prime requisite of elections regulated by

Title IV is that they be held by secret ballot among

the members or in appropriate cases by representa-

tives who themselves have been elected by secret

ballot among the members. A secret ballot under

the Act is ‘the expression by ballot, voting machine,

or otherwise, but in no event by proxy, of a choice

* * * cast in such a manner that the person express-

ing such choice cannot be identified with the choice

expressed.’ [Quoting 29 U.S.C. § 402(k).) Secrecy

may be assured by the use of voting machines or, if

paper ballots are used, by providing voting booths,

partitions, or other physical arrangements per-

mitting privacy for the voter while he is making

his ballot. The ballot must not contain any marking

which upon examination would enable one to identify

it with the voter. Balloting by mail presents special

problems in assuring secrecy. Although no particu-

lar method of assuring such secrecy is prescribed,

secrecy may be assured by the use of a double

envelope system for return of the voted ballots with

the necessary voter identification appearing only

on the outer envelope.”

14a

Appendiz.

On analysis, it is apparent that under this regulation a

voting booth “or other physical arrangements permitting

privacy for the voter’’ may be used to assure the secrecy

of the ballot, but secrecy must be assured. Since the

use of the secret ballot is mandatory and not optional,

the arrangements for voting at the June 1970 election

satisfy neither the statute nor the regulation.

Defendants’ argument that every voter had an op-

portunity to make his ballot secret by going to an un-

populated area within the large room or to one of the

small rooms or by guarding his vote from observation

must fail. But see Shultz v. Local 20, Aluminum Work-

ers, 74 LRRM 2281 (N.D. N.Y. 1970). The statutory

mandate is for a vote that “cannot” be identified with

the voter. In many cases, requiring a union member to

make a great show of securing his secrecy may be tanta-

mount to indicating his vote. The Act requires a manda-

tory secret ballot, not one permitting a voter to mark

his ballot in secret with the danger of identification

implicit in securing that secrecy.

In rejecting the Secretary's claim that the secret

ballot requirement of the Act had not been observed, the

district judge was especially motivated by the fact that

“the evidence did not indicate that the lack of a voting

booth or similar apparatus for secret voting may have

affected the outcome of the election.“ 10 This was con-

trary to the holding in Hotel Employees that once a vio-

lation is established by a preponderance of the evidence,

a prima facie case has been made that the outcome of

10. Section 402(c) of the Act requires a new,

supervised election if a violation of Section 401 (note

2 supra) “may have affected the outcome of an elec-

tion” (29 U.S.C. S 482 (e

15a

Appendiz.

the election was affected. See 391 U.S. at 505-509. Accord-

ing to our reading of the record, these defendants did

not meet that prima facie case.

Fed. R. Civ. P. 52 (a) provides that a district court's

fact findings cannot be reversed on appeal unless found

to be clearly erroneous. While this Court reverses the

judgment of the court below, it is not necessary to hold

any of the district judge's findings clearly erroneous.

The basis for the reversal is legal rather than factual.

Thus we accept both the district court’s endorsement of

the parties’ stipulation and the facts as found by the dis-

trict court after the hearing. We are overturning only

the legal conclusions that the candidacy restriction was

reasonable and that there was a secret ballot within the

meaning of the Act.

The order of the district court is reversed with

directions to enter judgment for the Secretary.

A true Copy:

Teste:

—U— 33% „ „ „ „ „„ „ „„ „ „„ „ „ „ „ „ „ „ „ „ 6

Clerk of the United States Court of

Appeals for the Seventh Circuit.

16a

Appendix.

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

Chicago, Illinois 60604

August 5, 1975

Before

Hon. WALTER J. CUMMINGS, Circuit Judge

Hon. WILBUR F. PELL, IR., Circuit Judge

Hon. Josy SAM Perry, Senior District Judge“

No. 74-1639

PETER J. BRENNAN, Secretary of Labor,

Plaintiff-Appellant,

V.

LOCAL 3489, UNITED STEELWORKERS OF . No. TH

America, AFL-CIO, and UNITED STEEL- 70 C117

WORKERS OF AMERICA, AFL-CIO,

Defendants-Appellees.

4

Appeal from the United States District Court for the

Southern District of Indiana, Terre Heute Division,

James E. Noland, Judge

Opinion by Judge Cummings

This cause came on to be heard on the transcript

of the record from the United States District Court for

the Southern District of Indiana, Terre Haute Division,

and was argued by counsel.

On consideration whereof, it is ordered and ad-

judged by this court that the judgment of the said Dis-

trict Court in this cause appealed from be, and the

same is hereby, REVERSED, in accordance with the

opinion of this court filed this date.

*Senior District Judge Joseph Sam Perry of the

Northern District of Illinois is sitting by designation.

17a

Appendiz.

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF INDIANA

TERRE HAUTE DIVISION

PETER J. BRENNAN, Secretary of Labor,

United States Department of Labor

[Successor to James D. Hodgson,

Resigned |

v. NO. TH

Local. 3489, UNITED STEELWORKERS OF f 70-C-117

AMERICA, AFL-CIO

and

UNITED STEELWORKERS OF AMERICA,

AFL-CIO

Memorandum Opinion

Plaintiff, the Secretary of the United States Depart-

ment of Labor, instituted this action under Title IV of

the Labor-Management Reporting and Disclosure Act

(LMRDA) 29 U.D.C. § 401 et seq. The Court has juris-

diction over this action under 29 U.S.C. 482(b). The

Secretary sought a judgment declaring the nominations

and election conducted by defendant Local 3489, United

Steelworkers of America, AFL-CIO, on May 17 and June

22, 1970, to be null and void, and directing that a new

election be conducted for all offices of defendant Local

under supervision of the Secretary of Labor. For the

reasons stated herein, we find the requested relief to be

unwarranted.

Local 3489 is an unincorporated association main-

taining its principal office at 625 North 13th Street,

Terre Haute, Indiana. The Loca! consisted in June 1970

18a

Appendiz.

of approximately 660 members employed by the Stran

Steel Corporation at its Terre Haute plant. Local 3489

is, and at all times relevant to this action has been, char-

tered by and subordinate to the defendant United Steel-

workers of America, AFL-CIO, an international labor

organization engaged in an industry affecting commerce

within the meaning of the Act.

Following the election of June 22, 1970, Bernard

Frye, a member in good standing who had been nomi-

nated for the presidency, protested the nominating and

election procedures to the Local and International. Sub-

sequently on September 24, 1970, he filed a complaint

with the Secretary of Labor asserting the same objec-

tions. Mr. Frye is currently president of the Local as

the result of the June 1973 election. On the basis of Mr.

Frye’s complaint, the Secretary filed this action on

November 23, 1970, pursuant to 29 U.S.C. 482.

The Secretary asserts that the nominating proce-

dure employed by the Local violated Section 401(e) of

the LMRDA, 29 U.S.C. 481(e)! in that through the im-

position of an unreasonable candidacy requirement

members in good standing were denied the right to be

candidates for local union office and to support the candi-

dates of their choice. The challenged candidacy require-

1. Section 401(e) provides in pertinent part that:

„e) In any election required by this section

which is to be held by secret ballot a reasonable

opportunity shall be given for the nomination of

candidates and every member in good standing shall

be eligible to be a candidate and to hold office

(subject to Section 504 of this title and to reason-

able qualifications uniformly imposed) and shall

have the right to vote for or otherwise support the

candidate or candidates of his choice.

19a

Appendiz.

ment is contained in Article VII, Section 9 of the Inter-

national Constitution and provides in pertinent part

that:

No member shall be eligible for election as a

Local Union officer or Grievance Committeeman un-

less

* 8 ®

(e) He has attended at least one-half (%)

of the regular meetings of his Local Union for

thirty-six (36) months previous to the June

1970, election, unless his Union activities or

working hours prevented his attendance.”

The Secretary also asserts that Local 3489 by its

failure to provide voting booths or other means of in-

suring secrecy during the voting process, violated Sec-

tion 401(b) of the LMRDA, 29 U.S.C. 481 (b). 2

Prior to the May 17 nominations the Local’s Re-

cording Secretary compiled a list of the names of 22

members eligible to hold local office. Of these, 10 were

incumbent officers. Following the May 17 meeting, two of

the members subsequently nominated were informed

that they were ineligible for union office because they

had attended an insufficient number of meetings.

It is the Secretary’s position that a candidacy re-

quirement under which in excess of 90% of the Local’s

members are ineligible for office is per se unreasonable

under the Supreme Court’s interpretation in Wirtz v.

Hotel, Motel & Club Employees Union, Local 6, 391 U.S.

2. Section 401(b) provides that:

“(b) Every local labor organization shall elect

its officers not less often than once every three

years by secret ballot among the members in good

standing.”

20a

Appendix.

492 (1968) of the “reasonable qualifications uniformly

imposed” provision contained in Section 401(e).

Hotel Employees focused on a candidacy qualifica-

tion which the Supreme Court characterized as “vir-

tually unique in trade union practice.” 391 U.S. at 505.

The qualification then in question limited eligibility for

major local union offices to union members who had

previously held union elective office. The practical effect

of this requirement was to restrict eligibility for office

to those members who had the blessing of the en-

trenched administration party. The Court observed that

the LMRDA was expressly enacted to curb the abuses

of entrenched leadership, and in view of the practical

effect of the restriction found the qualification unreason-

able.

It is clear to the Court that the meeting attendance

rule in the instant case stands upon an altogether dif-

ferent footing than did the previous office restriction

considered in Hotel Employees. In Hotel Employees the

control over qualification or disqualification of candi-

dates was in the hands of an entrenched union leader-

ship. Under the meeting attendance rule it is left to each

member to decide whether or not he wili qualify him-

self for union office by giving less than two hours of

his time each month to union activity. Application of

a strict percentage rule in determining the reasonable-

ness of any given qualification does not distinguish be-

tween candidacy restrictions imposed by union leader-

ship and restrictions brought about by the individual

members. Further, the previous office qualification bears

no necessary relationship to fitness for office. The meet-

ing attendance qualification on the other hand is de-

signed to (1) insure that candidates have demonstrated

an interest in union affairs prior to election and are

21a

Appendiæ.

therefore likely to continue to do so, if elected, and (2)

that candidates will, if elected, be able to more knowl-

edgeably fulfill their duties.

Based upon the foregoing, the Court concludes, as

it has been concluded in the past by this Court and

others, that the Steelworkers’ meeting attendance rule

is a reasonable qualification within the meaning of Sec-

tion 401(e) of the LMRDA. Brennan v. Local 5724,

United Steelworkers of America, 489 F.2d 884 (6th Cir.

1973) ; Shultz v. Local Union 6799, 71 LRRM 2830 (C.D.

Cal. 1969), aff'd -n other grounds, 426 F.2d 969 (9th

Cir. 1970), aff d sub nom., Hodgson v. Local 6799, United

Steelworkers of America, 403 U.S. 333 (1971); Shultz

v. Local 1299, United Steelworkers of America, 324

F.Supp. 750 (E.D. Mich. 1970), aff’d in part, sub nom.,

Hodgson v. Local 1299, United Steelworkers of America,

453 F.2d 565 (6th Cir. 1971); Shultz v. Local 1150,

United Steelworkers of America, 75 LRRM 2869 (S.D.

Ind. 1970), vacated on other grounds (No. 71-1467, 7th

Cir. July 1971, unreported).

With respect to the Secretary’s allegation that the

election held on June 22, 1970 did not fulfill the secret

ballot requirement contained in Section 401(b) of the

LMRDA, the evidence at trial disclosed that in fact

ample opportunity was given to the union members to

vote in secret. The Union hall contained three rooms

available for balloting. The largest of these, twenty by

sixty feet in size, contained sixty to one hundred chairs

and four tables available for marking ballots. A large

amount of wall space could also have been used. Indeed

there is nothing to indicate that voters could not have

left the hall to mark their ballots as no restriction was

placed upon them once they received their ballots. The

22a

Appendiz.

ballots themselves were small and could have been

shielded by the voter’s arm. From the evidence it ap-

pears that the balloting on June 22, 1970, was approxi-

mately as secret as it could have been made by the vot-

ing booth subsequently acquired by the Local. Most im-

portantly, however, the evidence did not indicate that

the lack of a voting booth or similar apparatus for

secret voting may have affected the outcome of the elec-

tion.

On the basis of the foregoing, the Court concludes

that the requested relief is unwarranted. Judgment is

now entered in favor of the defendants and against the

plaintiff.

Findings of Fact and conclusions of law have not

been separately stated, but are included in the body of

the foregoing opinion in accordance with Rule 52(a) of

the Federal Rules of Civil Procedure. Plaintiff’s com-

plaint is DISMISSED.

JAMES E. NOLAND

James E. Noland,

U. S. District Judge

DATE: April 30, 1974

23a

Appendix.

No. 73-1171

UNITED STATES COURT OF APPEALS

For THE SIXTH CIRCUIT

PETER J. BRENNEN, ,

Secretary of Labor,

Plaintiff-Appellant,

v. APPEAL from the

LOCAL 5724, UNITED United States District

STEELWORKERS OF AMERICA, Court for the South-

AFL-CIO, and UNITED ern District of Ohio.

STEELWORKERS OF AMERICA,

AFL-CIO,

Defendants-A ppellees.

Decided and Filed December 19, 1973.

Before PHILLIPS, Chief Judge, and PEcK and LIVELY,

Circuit Judges.

PHILLIPS, Chief Judge. A United Steelworkers’ rule

provides that no member shall be eligible for election to

a local union office unless he has attended at least one-

half of the regular meetings of his local union during the

previous 36 months. The issue presented on this appeal is

whether this attendance requirement is a reasonable

qualification uniformly imposed within the meaning of

the Labor-Management Reporting & Disclosure Act of

1959, 29 U.S.C. S481 (e).

1. 29U.S.C. § 481(e) provides in part:

“In any election required by this section which

is to be held by secret ballot a reasonable oppor-

tunity shall be given for the nomination of candi-

dates and every member in good standing shall be

eligible to be a candidate and to hold office (subject

ee ee aaa

24a

Appendiz.

District Judge Joseph P. Kinneary held the rule to

be valid. We affirm.

The Secretary of Labor filed this action challenging

as null and void a Union election held in June 1967 by

Local Union 5724, United Steelworkers of America, and

seeking to have a new election conducted under his

supervision. Jurisdiction is based upon 29 U.S.C. § 482.2

Semmes sm mmm

to section 504 and to reasonable qualifications uni-

formly imposed) and shall have the right to vote

for or otherwise support the candidate or candi-

dates of his choice, without being subject to penalty,

discipline, or improper interference or reprisal of

any kind by such organization or any member there-

of. * * The election shall be conducted in accord-

ance wit, the constitution and bylaws of such

organization insofar as they are not inconsistent

with the provisions of this subchapter.”

2. Section 402, 29 U.S.C. § 482, authorizes the

Secretary of Labor to file suit to remedy any violation

of § 401 if certain conditions have been met:

(a) A member of a labor organization—

(1) who has exhausted the remedies available

under the constitution and bylaws of such organiza-

tion and of any parent body, or

(2) who has invoked such available remedies

without obtaining a final decision within three cal-

endar months after their invocation, may file a

complaint with the Secretary within one calendar

month thereafter alleging the violation of any pro-

vision of section 481 of this title

(b) The Secretary shall investigate such com-

plaint and, if he finds probable cause to believe that

a violation of this sub-chapter has occurred and has

not been remedied, he shall, within sixty days after

filing of such complaint, bring a civil action against

the labor organization. to set aside the invalid

election, if any, and to direct the conduct of an

election . under the supervision of the Secre-

tary....

25a

Appendix.

The Union attendance rule, imposed by Article VII,

§ 9, of the Internationa! Steelworkers’ Constitution, in

relevant part is as follows:

No member shall be eligible for election as a

Local Union Officer or Grievance Committeeman

unless

“(c) He has attended at least one-half () of

the regular meetings of his Local Union for thirty-

six (36) months previous to the June, 1967, election,

unless his Union activities or working hours pre-

vented his attendance.”

The facts are largely undisputed. In June 1967, Local

5724 had approximately 1,700 members comprised exclu-

sively of production and maintenance employees at the

Ormet Corporation plant in Hannibal, Ohio. The plant

operated in shifts. About 800 emplo, es worked the day

shift (8 a.m. to 4 p.m.), but only about 439 of these em-

ployees were permanently assigned to this shift. Ap-

proximately 430 employees worked the 4 p.m. to 12 p.m.

shift, 88 of whom were permanently assigned. About 370

employees worked from midnight to 8 a.m., and of these,

33 were permanently assigned to this night shift. Those

employees who were not permanently assigned to a

particular shift were rotated from one shift to another.

(e) If, upon a preponderance of the evidence

after a trial upon the merits, the court finds—

* * *

(2) that the violation of section 481 of this

title 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

supervision of the Secretary

a —⁰ w

Appendiz.

Local 5724 held regular meetings according to a set

schedule at 4:30 p.m. on the second Thursday of each

month at a union hall located in Clarington, Ohio. The

union hall was eight miles from the plant and could be

reached in a 15 minute automobile ride from the plant.

The average length of each meeting was about two

hours. For the 36 monthly meetings between June 1964

and May 1967, attendance varied from 11 to 117 mem-

bers, with an average attendance of 45.

At the meeting on May 11, 1967, there were 42

nominations for nine local union offices. Nine of the

nominations were declined. An election committee then

determined whether the remaining 33 nominees were

eligible for office. Under the International Constitution

of the Steelworkers, there were three requirements for

eligibility to run for and hold local union office; the

member must (1) have been in continuous good stand-

ing for a period of 24 months immediately preceding

the election, (2) have been employed in a plant or mill

or other place within the jurisdiction of the local union,

and (3) have attended at least 18 of the regular monthly

meetings in the 36 months preceding the June 1967

election, unless his union activities or working hours

excused his attendance. Since these requirements were

a part of the Steelworkers’ International Constitution,

they were binding on all 3,700 local unions chartered by

the International Union in 1967.

Although none of the 33 nominees was disqualified

on account of the first two requirements, nine nominees

were declared ineligible to seek office because of their

failure to satisfy the meeting attendance rule. Of the 24

qualifying candidates, 19 had attended 18 or more of the

previous 36 meetings and five more qualified as candi-

27a

Appendiæ.

dates by combining attendance with excused absences.

As a result of the disqualifications pursuant to the meet-

ing attendance rule, the nominees for recording secre-

tary, treasurer and guide ran unopposed.

After the election, James Hutson, a nominee for

President who had been declared ineligible under the

meeting attendance rule, filed a timely written protest

with the Local in which he contested the reasonableness

of the rule. Hutson had attended 11 of the 36 meetings

preceding the election and had no excused absences

because he was permanently assigned to the day shift.

When Local 5724 denied his protest, Hutson appealed to

the International Union’s Executive Board, but that

body also denied his protest. Having thus exhausted his

internal union remedies, as required by § 402(a) of the

Act, 29 U.S.C. § 482(a), Hutson filed a timely complaint

with the Secretary.

After the investigation required by § 402 (b) of the

Act, 29 U.S.C. § 482(b), the Secretary then commenced

this action against Local 5724. The International Union

intervened as a defendant.

The District Judge conducted an evidentiary hear-

ing as to the purposes of the Steelworkers’ meeting at-

tendance rule and concluded that it was intended to ac-

complish legitimate union goals. Accordingly, the Dis-

trict Judge held that the rule was not an “unreasonable

qualification” for candidacy for local union office and

that the rule was “uniformly and fairly applied” to each

member of Local 5724 in the disputed election. For the

reasons set out below, we agree with the decision of the

District Court.

We are cited to no decision of the Supreme Court or

any Court of Appeals deciding the question of whether

28a

Appendiæ.

the Steelworkers’ attendance rule is a reasonable quali-

fication uniformly imposed within the meaning of the

statute. Three District Courts have sustained the rule.

See, Shultz v. Local Union 6799, United Steelworkers of

America, 71 LRRM 2830 (C.D. Cal. 1969), aff’d on other

grounds, 426 F.2d 969 (9th Cir. 1970), aff'd sub nom.,

Hodgson v. Local 6799, United Steelworkers of America,

403 U.S. 333 (1971); Shultz v. Local 1299, United Steel-

workers of America, 324 F.Supp. 750 (E.D. Mich. 1970),

aff'd in part, sub nom, Hodgson v. Local 1299, United

Steelworkers of America, 453 F.2d 565 (6th Cir. 1971);

Shultz v. Locai 1150, United Steelworkers of America,

75 LRRM 2869 (S.D. Ind. 1970), vacated on other

grounds (No. 71-1467, 7th Cir., July 1971, unreported).

On the other hand, one District Court in dicta has ex-

pressed the view that the Steelworkers’ rule did not

constitute a reasonable qualification for eligibility for

office holding, Brennan v. Local 3911, United Steel-

workers of America, Nos. 71-C-74 (N.D. II., March 16,

1973).

The reason why no Court of Appeals has yet re-

viewed the validity of the Steelworkers’ rule is because

in each of the above cases the union member or members

who protested the conduct of an election failed to raise

the question of the legality of the rule during the course

of the internal union procedure and thus did not satisfy

the exhaustion requirement ect forth in 402(a) of the

Act, 29 U.S.C. § 482 (a).

The Supreme Court determined in Hodgson v. Local

Union 6799, United Steelworkers of America, swpra, 403

3. For a text of the exhaustion requirement con-

tained in § 402(a) of the Act, 29 U.S.C. § 482(a), see

n. 2.

29a

Appendix.

U.S. 333 (1971), that the failure to exhaust internal

union remedies precluded the Secretary from filing suit

to challenge the validity of the rule. Accordingly, the

Supreme Court in Local 6799 expressly left unanswered

the issue of whether the Steelworkers’ rule was reason-

able. 403 U.S. at 341. Subsequently, this court found it

“unnecessary ... to reach“ the merits of the Steel-

workers’ rule in Hodgson v. Local 1299, United Steel-

workers of America, 453 F.2d 565, 575 (6th Cir. 1971).

In the present case the parties stipulated and the

District Court found that union meniber Hutson, a nomi-

nee for President of Local 5724, after being declared in-

eligible for failing to satisfy the meeting attendance rule,

thereafter attacked the validity of the rule throughout

the course of his timely internal protest first to the Local

and then to the Internationa! Union. Thus the validity

of the Steelworkers’ rule is properly before the court in

this action.

In determining the reasonableness of the meeting

attendance rule, we are guided by the purpose of the

Labor-Management Reporting and Disclosure Act of

1959. The Supreme Court has stated the spirit of the Act

as follows: “Title IV's special function in furthering the

overall goals of the LMRDA is to insure ‘free and demo-

cratic’ elections.“ Wirtz v. Local 153, Glass Bottle Blow-

ers Assn., 389 U.S. 463, 470 (1968). Section 401(e) of

the Act serves this function by prohibiting candidacy re-

quirements which are not “reasonable qualifications uni-

formly imposed.”

In interpreting the “reasonable qualifications uni-

formly imposed”’ provision, the Supreme Court has an-

nounced the rule that § 401(e) is to be strictly construed.

30a

Appendiz.

In Wirtz v. Hotel, Motel and Club Employees Union,

Local 6, 391 U.S. 492, 499 (1968), the Court stated:

“Congress plainly did not intend that the au-

thorization in 401(e) of ‘reasonable qualifications

uniformly imposed’ should be given a broad reach.

The contrary is implicit in the legislative history of

the section and in its wording that ‘every member in

good standing shall be eligible to be a candidate and

to hold office.. This conclusion is buttressed by

other provisions of the Act which stress freedom of

members to nominate candidates for office. Unduly

restrictive candidacy qualifications can result in the

abuses of entrenched leadership that the LMRDA

was expressly enacted to curb. The check of demo-

cratic elections as a preventive measure is seriously

impaired by candidacy qualifications which substan-

tially deplete the ranks of those who might run in

opposition to incumbents. [footnote omitted. |"

The Secretary first contends that the meeting at-

tendance rule is per se unreasonable because it bars more

than 80 per cent of the members of Local 5724 from run-

ning for or holding office. The Secretary relies on Hotel

Employees, supra, and Hodgson v. Local Unions 18, In-

ternational Union of Operatiny Engineers, 440 F.2d 485,

(6th Cir.), cert. denied, 404 U.S. 852 (1971).

The restriction at issue in Hotel Employees limited

eligibility for maior elective offices to members who had

previously held office. In striking down this requirement,

the Supreme Court looked to its practical impact:

“Plainly, given the objective of Title IV, a can-

didacy limitation which renders 93% of union mem-

bers ineligible for office can hardly be a ‘reasonable

qualification.“ [391 U.S. at 502.

31a

Appendiz.

While 93 per cent was held plainly unreasonable, the

Supreme Court did not indicate the maximum permis-

sible percentage of members that could be barred by a

reasonable rule.

To answer this question, the Secretary turned to

this court’s opinion in Local Unions 18, supra. The rule

at issue in that case required that candidates belong to a

parent local rather than a branch local. After finding

that this rule precluded over 60 per cent of the union

members from holding office, this court concluded that

the rule was “manifestly unreasonable,” particularly be-

cause there was no relationship between the rule and a

member’s fitness for office. 440 F.2d at 487.

On the basis of Hotel Employees and Local Unions

18, the Secretary contends that the Steelworkers’ rule

is unreasonable because only 1.4 per cent of Local 572478

members had attended the necessary 18 of 36 meetings,

and when excused absences were included, only 6.9 per

cent were eligible to be candidates. This would leave

93.1 per cent of Local 5724’s membership disqualified

by the meeting attendance rule, but the Secretary

acknowledges that this figure may be reduced to as low

as 84.8 per cent once certain other credits for work con-

flicts are considered.

On the other hand, the Steelworkers argue that (1)

the effect of the rule is not the touchstone for determin-

ing its reasonableness, (2) the Secretary’s per se theory

rests on an incorrect interpretation of Hotel Employees

and Local Unions 18 and (3) the Secretary’s argument

here is contrary to his published position as set forth in

his Interpretative Manual. We agree with the Steelwork-

ers’ position.

32a

Appendiz.

To satisfy the minimum requirements of the Steel-

workers’ rule, all that any member had to do was to de-

vote approximately two hours to union affairs every

other month during the three year period between elec-

tions. The obligation thus imposed on a member was to

spend thirty-six hours at union meetings every three

years. Further, it should be emphasized that the meet-

ings followed a set pattern. They were conducted on the

second Thursday of each month and were scheduled at

the most desirable time for purposes of accommodating

a majority of the members (30 minutes after the day

shift ended). In addition, the meeting hall was conve-

niently located within a fifteen minute automobile drive

from the plant.

Assuming the accuracy of the Secretary’s mathe-

matical computations that 84 to 93 per cent of Local

5724’s members were disqualified from seeking office

in the 1967 election, this is largely the fault of the union

members themselves. Since the union meetings were held

according to a set pattern and at a convenient location,

the real cause of the large scale disqualifications is not

the per se existence of the Steelworkers’ rule but the

failure of union members to attend the meetings.

Not only does the Secretary mistakenly fail to look

to the real cause of the disqualifications here, but he also

misinterprets the Supreme Court’s decision in Hotel

Employees and our decision in Local Unions 18. The

Supreme Court in Hotel Employees noted that only seven

per cent of the members satisfied the “prior office hold-

ing” requirement; that many of these had been ap-

pointed by the incumbents to fill vacancies, thus “en-

abl{ing] the incumbent group to qualify members for

elective office by a practice not available to dissidents :”’

—— — —

33a

Appendiæ. 1

and that in practice, endorsement by the incumbent

group was necessary to get elected to lower office, thus

making it impossible for dissidents ever to qualify to

run for higher office. 391 U.S. at 505. The Court finally

declared that control by incumbents through devices

which operate in the manner of this bylaw is precisely

what Congress legislated against in the LMRDA.“ 391

U.S. at 505.

This legislative objective is not thwarted by the

Steelworkers' meeting attendance rule. Unlike the Hotel

Employees’ bylaw, the Steelworkers’ rule disqualifies no

one. Every member can qualify by the relatively un-

burdensome step of devoting a few hours per month to

the affairs of his Union. Steelworkers disqualify them-

selves as a matter of free choice by their unwillingness

to devote a few hours per month to Union affairs. Be-

cause of this, as the District Court expressly held in

Local 6799, supra, 71 LRRM at 2823, every member could

have qualified merely by attending one-half of the meet-

ings.

The self-evident restrictive character of the “prior

office holding” rule, when accompanied by the numerical

effect of drastically limiting the number of eligible can-

didates for office, justifies the result in Hotel Employees.

It is, however, erroneous to conclude, as the Secretary

contends, that Hotel Employees commands blind ad-

herence to a per se theory even where, as here, the rule

does not by itself disqualify anyone and, as will be

shown below, does serve legitimate union objectives.

4. In addition, as will be more fully noted infra, the

Steelworkers’ rule fosters the objectives of the Act, inter

alia, in that by requiring dissidents to attend local union

meetings it assures that incumbents cannot administer

the union’s affairs in an uncontrolled, arbitrary manner.

Appendiz.

The Secretary's reliance on this court’s decision in

Local Unions 18 is also misplaced. The candidacy rule

in that case was drastically different from the Steel-

workers’ meeting attendance rule. Local 18 was divided

into a parent and three sub-locals. Members of all four

subdivisions were members in good standing of Local 18.

The problem was that only members of the parent local

were eligible to run for office and, in turn, this meant

that members of the sub-locals who desired to run for

local union office had to pay an additional $75 to $90

to satisfy the parent local initiation fee. 440 F.2d at

486-87.

In a bare statistical sense, this resulted in over 60

per cent of Local 18’s entire membership being precluded

from seeking office. This court invalidated the election in

Local Unions 18, on the following two-fold reasoning:

the union had applied a rule which (1) placed a price

tag on a member’s right to run for office; and (2) had

no bearing on the member’s fitness to hold office. 440

F.2d at 487-88. These deficiencies were deemed to be an-

tithetical to the policies of LMRDA. The fact that the

Union rule also had the effect of precluding a certain

percentage of members, there 60 per cent, from running

for office was plainly not the basis of the reasoning of

this court.

We believe that the Steelworkers’ rule has a direct,

substantial relationship to fitness to hold office in that

participation in union meetings is one indicia of interest

in union affairs. Further, it do.s not place any price tag

on the right to be a candidate. As such, the rationale of

Local Unions 18 does not support the Secretary’s posi-

tion here.

ee ee. ~

35a

Appendiz.

Further, the position of the Secretary is not con-

sistent with relevant provisions of his own published

LMRDA Interpretative Manual.5 The Manual generally

supports qualifications designed to assure that candi-

dates have participated in Union affairs and specifically

sanctions 50 per cent attendance requirements over one

and two year periods. It is difficult for us to see any

significant difference for a meeting attendance require-

ment covering a period ot three years. These regulations,

although later amended by the Secretary, were in effect

when the dispute here arose.

5. The following are excerpts from the LMRDA

Interpretative Manual:

“422.250 PARTICIPATION IN UNION AFFAIRS

Qualifications reasonably designed to assure

that candidates have participated in the affairs of

the union and are sufficiently familiar with the in-

dustry in which the union operates, would not be

considered unreasonable in ordinary circumstances,

if uniformly imposed. In the absence of knowledge

of any special circumstances which cast doubt upon

the validity and reasonableness of any of the quali-

fications they are not to be considered unreasonable

in themselves.

422.205 ATTENDANCE AT 6 OF 12 UNION MEET-

INGS MAY BE REASONABLE

A provision requiring that to be eligible as a

candidate for office a member must attend six out of

twelve meetings during the year, if applied fairly

and uniformly to all members, would not in ordinary

circumstances, be an unreasonable qualification of

the right to be a candidate for union office, within

the meaning of section 401(e) of the Act.

422.206 12 oF 24 MEETINGS MAY BE REASON-

ABLE

A provision requiring a member to have at-

tended at least one-half of the regular meetings of

Appendiz.

The Secretary’s second main contention is that the

Steelworkers’ rule is unreasonable because of alleged

disproportionate effects on (1) potential insurgents, (2)

new members and (3) night shift workers. Although the

Secretary stipulates that the Steelworkers’ rule is uni-

formly imposed in the sense that it applies to all locals

and all members, he argues that its practical impact is

not uniform for all categories of members and that this

lack of uniform imposition demonstrates its unreason-

ableness. He argues that potential insurgents do not

know three years in advance that they may challenge

union incumbents, that the rule hampers new members

from running for office, and that the meeting time (4:30

p.m.) effectively prevents night shift workers from at-

tending because it occurs midway between the end of one

shift (8 a.m.) and the beginning of another (midnight).

We are unpersuaded by the Secretary’s arguments

in this regard whether they go to the reasonableness

of the rule or to its uniform imposition. In our opinion,

valid reasons exist, wholly apart from the meeting at-

tendance rule in question, for requiring potential in-

surgents and new members to attend a minimum number

of meetings before running for office, inter alia, to pro-

vide some assurance that nominees for office will have

demonstrated their willingness to comply with funda-

mental obligations to their Union for a reasonable period

his local union for 24 months previous to the elec-

tion before he may be eligible to hold office, is not

unreasonable if it is applied fairly and uniformly

to all members.

It might well be unreasonable, however, in cir-

cumstances in which attendance presented an un-

usual degree of difficulty for a significant proportion

of the membership; as for example, where the local

had an extensive geographical jurisdiction.”

—— ———

— eee

37a

Appendiæ.

of time. Further, the Secretary has made no showing

that the 4:30 p.m. meeting time imposed an undue hard-

ship on the 33 employees permanently assigned to the

midnight to 8 a.m. shift or the 340 employees working

that shift on a rotating schedule. Union meetings were

held only once a month and night shift workers could

have attended the 4:30 p.m. meetings if they had desired

to do so.

Finally, the Secretary contends that the purported

justifications for the rule are imperceptibly small or

can be served by less restrictive alternatives. We find

this argument equally unpersuasive.

The District Judge conducted an evidentiary hear-

ing limited to the purposes of the Steelworkers’ rule.

His conclusion of fact was that the rule was adopted

for the following three reasons.“

“(1) To encourage broad base participation

in the affairs of the union, and to obtain as large a

turnout as possible at the meetings at which the

union’s business is conducted.

(2) To attempt to assure that candidates

have demonstrated an interest in and are likely to

be concerned with the problems of the union.

“(3) To attempt to insure that candidates

have participated in the affairs of the union and are,

therefore, sufficiently familiar with its problems

to be able more intelligently to fulfill the numerous

responsibilities and duties attendant to holding

office.”

6. The Steelworkers suggest a fourth reason for

the rule, to wit: to insure that those who are in the

opposition will come to Union meetings in order to keep

ripe their right to run against the local Union leadership.

Appendiz.

On the basis of this evidentiary hearing, the District

Judge concluded that the purpose of the Steelworker’s

rule was as follows:

To accomplish legitimate union goals; name-

ly, to provide a constant check upon the growth

of unbridled control of the local’s affairs by incum-

bent officers, as well as to provide a means of fa-

miliarizing rank and file members of that which is

entailed in the management of the local's affairs.’

Shultz v. Local 1299, United Steelworkers of Amer.,

supra at p. 756; see also Shultz v. Local 1150, Steel-

workers, supra at p. 2877.”

The Secretary’s argument gives us no basis on

which to conclude that the findings of fact of the District

Judge are clearly erroneous, Fed. R. Civ. P. 52(a), or

that the District Judge erred in concluding that the

Steelworkers’ rule was designed to ‘accomplish legiti-

mate union goals.”

We, therefore, hold that the Steelworkers’ meeting

attendance requirement for candidacy for local union

office is a reasonable qualification uniformly imposed”

under the facts and circumstances of this case.

Affirmed.