Amicus Curiae Brief — Masters, Mates & Pilots v. Brown

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Petitioners,

Respondent.

(Counsel of Record)

Widener University

wer naa School of Law

Bo ‘West 43 Street 3800 Vartan Way

_. New York, New York 10036 Harrisburg, Pennsylvania 17110

(212) 944-9800 (717) 541-3938

Susan Goering Judith R. Schneider

ACLU of Maryland Association for Union Democracy

-2219°St. Paul Street 30 Third Avenue, #619

Baltimore, Maryland 21218 Brooklyn, New York 11217

(301) 889-8555 (718) 855-6650

Clyde W. Summers

University of Pennsylvania

School of Law

ladelphia, Pennsylvania 19104

BEST AVAILABLE COPY

TABLE OF CONTENTS

pr ee hye) eee

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SUMMARY OF ARGUMENT ...............

I. THE PLAIN MEANING OF THE

LMRDA’S WORDING REQUIRES

THE REASONABLENESS OF A

CANDIDATE’S REQUEST FOR THE

MAILING OF CAMPAIGN LITERA-

TURE TO BE DETERMINED WITH-

OUT REGARD TO UNION ELEC-

DE BUG eee eek weebeecs....

Il. UNION LIMITATIONS ON CANDI-

DATE MAILINGS OF CAMPAIGN

LITERATURE UNDERMINE THE

LMRDA’S LEGISLATIVE PURPOSE

OF LEVELING THE PLAYING

FIELD BETWEEN CHALLENGERS

AND INCUMBENTS IN_- UNION

eo el eee

A. The LMRDA’s Legislative

Pur-ose Was To Level The

Playing Field Between Chal-

lengers And Incumbents ........

B. The Advantages Of Incum-

bency Are _ Particularly

Overwhelming In Union

DE echedeaseedwsokas es

5 ot

C. Opportunities For Early

Mailings Of Campaign Lit-

erature Are Essential If

Challengers Are To Have

Any Chance Of Overcoming

The Advantages Of Incum-

bency Typically Enjoyed By

Their Opponents .............. 14

II. OPPORTUNITIES FOR EARLY

MAILINGS OF CAMPAIGN

LITERATURE FURTHER THE

LMRDA’S LEGISLATIVE PUR-

POSE OF ENABLING UNION

MEMBERS TO BE INFORMED

ABOUT UNION AFFAIRS ........ 21

IV. PETITIONERS’ RULES RE-

STRICTING A CANDIDATE’S

RIGHT TO MAIL CAMPAIGN

LITERATURE ARE ENTITLED

TO NO DEFERENCE BECAUSE

THEIR ANTIDEMOCRATIC

EFFECTS FAR OUTWEIGH ANY

LEGITIMATE UNION IN-

TERESTS THEY MAY SERVE ..... 25

CONCLUSION

ii

TABLE OF AUTHORITIES

Cases

Alvey v. General Electric Co.,

Ee 28

Blanchard v. Johnson,

388 F.Supp. 208 (N.D. Ohio 1975),

modified on other grounds,

532 F.2d 1074 (6th Cir.),

cert. denied, 429 U.S. 869 (1976) ............ 23, 24

Carpenters Local 22,

TED «cc cceccccccccccccccecs 25

Cotter v. Helmer,

692 F.Supp. 313 (S.D.N.Y. 1988) ............ 20, 24

Daniels v. Post Office Mail Handlers,

454 F.Supp. 336 (E.D.Va. 1978) ...... (a Sarre eae 23

DelCostello v. International Brotherhood

of Teamsters,

I ccc ccc cece cece cccccces 11

Finnegan v. Leu,

ED ccc cccccccccsccescccces 13

Helton v. NLRB,

EEE, BOWED occ ccc ccccccccces 25

Hotel Employees and Local 3489,

United Steelworkers v. Usery,

ae 10, 18, 19, 25

Humphrey v. Moore,

EE Cc cscs ccceescccscccccces 11

Local 82, Furniture and Piano Movers v. Crowley,

EE, nc cece cecccccccccccccecs 22

iil

Lodge 1389, B.R.A.C. v. Dennis,

eee 23

Morrissey v. Curran,

356 F.Supp. 312 (S.D.N.Y. 1973) ..... 2c ccccccs 20

Rural Letter Carriers, Knox County Local v.

Rural Letter Carriers,

rote | |e A | re 23

Scofield v. NLRB,

eS a kd hee ae dd «Owe eee Oe 25

Sheldon v. O’Callaghan,

497 F.2d 1276 (2d Cir.),

cert. denied, 419 U.S. 1090 (1974) ............... 23

United States v. International Brotherhood

of Teamsters,

88 Civ. 4486 (S.D.N.Y. Mar. 13, 1989) ........... ]

United States v. Local 560, International

Brotherhood of Teamsters,

780 F.2d 267 (3d Cir. 1985),

cert. denied, 476 U.S. 1140 (1986) ............... 8

United Steelworkers v. Sadlowski,

ES ee passim

Whirlpool Corp. v. Marshall,

en sae gl «bid. oe bedi ies 24

Wirtz v. Hotel, Motel & Club

Employees, Local 6,

EE, oo So ud peu seacescs 7, 9, 10, 18

Wirtz v. Local 153, Glass Bottle Blowers,

Be nn kG kn 0 860 e me 7, 9, 16

Yablonski v. United Mine Workers,

FO Bes GD Ge BOD wc cc ccsccccenes 20

iv

Page

Statutes and Regulations

yp ee arr 20, 27

BP I vice ec diccccvccsccccccen 20

Federal Election Campaign Act _

IE pvc ccc cccccccece 18

Labor-Management Reporting and Disclosure Act

§101(a)(1), 29 U.S.C. §411(a)(1) .......... 5, 22

§101(a)(2), 29 U.S.C. §411(a)(2) .... 5, 22, 23, 24

rr 3, 6

EE 22

ee ccc ccc ee ceeeees 22

eee 22

ei re 22

eR 22

Ne ccc ee eeeesee 22

Oy ed |, passim

S4GNG Zo UDA. GSBMG) 2. wc cc cccess 5, 6, 25

el ee 22

National Labor Relations Act

§8(b)(1)(A), 29 U.S.C. §158(b)(1)(A) ........ 25

Legislative History

H.Rep. No. 741, 86th Cong., Ist Sess. (1959) ...... 8

Hearings on S.505 Before the Subcommittee

on Labor of the Committee on

Labor and Public Welfare,

I I I ID go ccc cc ccccccesens 16

NLRB, Legislative History

Pe ree 8, 11, 21

S.Rep. No. 187, 86th Cong., Ist Sess. (1959) ..... 8, 21

Vv

S.Rep. No. 1684, 85th Cong., 2d Sess. (1958) ......

S.Rep.No. 1417, 85th Cong., 2d Sess. (1958) .......

Other Authorities

Aaron, "The Labor-Management Reporting

and Disclosure Act of 1959,"

Fe PeeWee, GOL CISOO) 0. ccc cee

Applebaum & Blaine,

“Compensation and Turnover of Union Officers,"

PO ED ceive ees ccccuscesvcees

Edelstein, J. & Warner, M.,

Comparative Union Democracy:

Organization and Opposition in

British and American (rev.ed. 1979) .............

Estey, M., The Unions: Structure,

Development and Management (3d ed. 1981) .... 12, 13

Goldberg, "Cleaning Labor’s House:

Institutional Reform Litigation

in the Labor Movement,"

EELS PETES 7,8

Ifshin, "An Analysis of the Impact of

the Federal Election Campaign Act on the

1976 Democratic Presidential Primary,"

18 Santa Clara L.Rev. 1 (1978) ................

Jacobs & Spring, "Fair Coverage

in Internal Union Periodicals,"

ee

James, "Union Democracy and the LMRDA:

Autocracy and Insurgency in

National Union Elections,"

13 Harv. C.R.-C.L. LRev. 247 (1978) ...... 11, 12, 21

Levy, "Legal Responses to

Rank-and-File Dissent: Restrictions

on Union Officer Autonomy,"

30 Buffalo L.Rev. 663 (1981) ...............255.

Lipset, S., Trow, M. & Coleman, J.,

Union Democracy (1956) .........02000008: 12, 16

McAdams, A., Power and Politics in

Labor Legislation (1964) ........005 cee eee eeee

McLaughlin, D. & Schoomaker, A.,

The Landrum-Gniffin Act and

fe 12,

Note, "Union Elections and the LMRDA:

Thirteen Years of Use and Abuse,”

el IE os hbo sce cccccesesccces

Nyden, "Democratizing Organizations:

A Case Study of a Union Reform Movement,"

I Eg wesc cecsecescccccce

Quaglieri, "The New People of Power:

The Backgrounds and Careers of

Top Labor Leaders,"

Pi eee ir

Rothman, "Legislative History of the

‘Bill of Rights’ for Union Members,"

GS Pe, BO EEPUED ccc ccc cc ccc cc cccene

Sayles, L. & Strauss, G.,

The Local Union (rev. ed. 1967) .........-0500055

vii

Strauss, "Control by the Membership in

Building Trades Unions," in

Unions and Union Leadership

ee ci ekowkben 18

Summers, "Democracy in a One-Party

State: Perspectives From Landrum-Griffin,"

43 Md.L.Rev. 93 (1984) .............. 12, 13, 19, 26

Wallihan, J., Union Government

and Organization (1985) .............00000. 12, 14

Vili

INTEREST OF AMICT

The Association for Union Democracy (AUD) is a

nonprofit corporation founded in 1969 which seeks to

further democratic principles and practices in American

labor organizations, both by encouraging union members

to participate actively in the internal life of their unions,

and by protecting the exercise of their democratic rights

within their unions. No other organization devotes itself

primarily to this objective.

The sponsors of the Association include former

leaders of major unions, religious leaders, members of

union public review boards, lawyers, prominent educators

in labor studies and labor law, and numerous union

members. Despite divergent backgrounds, all share the

view that the labor movement is one of the great forces

which helps sustain democracy in our national life and

that, if it is to serve this purpose, union leaders must be

responsive to their members, and unions must be demo-

cratic and just in their internal operations.

The Association has assisted union members seeking

to secure honest and fair elections in the United Mine

Workers of America in 1972 and the United Steel-

workers in 1978. The AUD is currently playing a similar

role in elections being held in the International Brother-

hood of Teamsters pursuant to the civil RICO consent

decree in United States v. International Brotherhood of

Teamsters, 88 Civ. 4486 (S.D.N.Y. Mar. 13, 1989).

The American Civil Liberties Union (ACLU) is a

nationwide, nonprofit, nonpartisan organization with over

275,000 members dedicated to the principles of liberty

and equality embodied in the Constitution. The ACLU

of Maryland is one of its statewide affiliates. For over

forty years, the ACLU has supported efforts in Congress

' Letters of consent to the filing of this brief have been lodged with

the Clerk of this Court pursuant to Rule 37.3.

l

and in the courts to recognize and strengthen the rights

of union members to internal union democracy. Indeed,

as commentators have noted, the legislative campaign

that eventually culminated in the enactment of the

Labor-Management Reporting and Disclosure Act of

1959 (LMRDA) "was formally launched by the American

Civil Liberties Union [when it] submitted a ‘Trade

Union Democracy’ bill to the Congress during the 1947

hearings on new labor legislation.". Aaron, "The Labor-

Management Reporting and Disclosure Act of 1959," 73

Harv.L.Rev. 851 (1960). See also Rothman, "Legislative

History of the ‘Bill of Rights’ for Union Members," 45

Minn.L.Rev. 199, 201-06 (1960).

Because the rights of union members to democratic

self-governance are implicated by the decision below, the

AUD and the ACLU join with respondent and urge the

Court to affirm the judgment below.

SUMMARY OF ARGUMENT

This case raises a question of statutory construction

essential to a worker’s right to free and fair union elec-

tions: whether §401(c) of the LMRDA, 29 U.S.C.

§481(c), requires deference to a union’s election rules

when a court evaluates the reasonableness of a candi-

date’s request for the mailing of campaign literature at

the candidate’s own expense. In the real world of union

elections, the issues before the Court are these: Can a

union, by promulgating a restrictive rule -- in this case,

one barring the use of union membership lists for cam-

paign mailings until a period late in the campaign, after

candidates are formally nominated -- prevent a candidate

for union office from utilizing what is often the only

effective means of ‘communicatirg with union members

at crucial, formative stages of a candidate’s campaign?

And can a union, through such a restrictive rule, sub-

stantially undermine the membership’s right to be kept

informed of union affairs? The LMRDA is designed to

promote union democracy by providing for fair and

informed union elections. The answers to these ques-

tions must therefore be no.

The clear and unambiguous language of §401(c)

requires unions to "comply with all reasonable requests"

of a candidate to mail campaign literature to the union’s

membership at the candidate’s expense (emphasis

added). Nothing in the language or legislative history of

that section supports petitioners’ contention that the

reasonableness of a candidate’s request must be meas-

ured by its consistency with the union’s own election

rules. On the contrary, when Congress intended rights

created by the LMRDA to yield to reasonable union

rules, it quite explicitly provided for that result in other

sections of the Act. Where union rules conflict with

LMRDA rights that are not limited by such provisos --

like those in §401(c) -- Congress made clear its intent

that such union rules "shall be of no force or effect."

LMRDA §101(b), 29 U.S.C. §411(b).

The legislative purpose of the LMRDA supports this

reading: LMRDA was intended to help alleviate union

corruption by promoting democracy in internal union

affairs. In pursuing that goal, Congress recognized that

incumbents often enjoy tremendous advantages over

their challengers in union elections. Congress thus de-

signed the LMRDA to reduce the advantages of incum-

bency and to level the playing field between challengers

and incumbents in union elections.

In particular, Congress intended the candidate mail-

ing rights provided by §401(c) to counteract one of the

most important advantages enjoyed by incumbents --

control over the means of communication with the

union’s membership. Incumbent union officers are in a

position to use their control over the union newspaper,

in effect, to begin their reelection campaigns the day

after they take office. They typically do so in the con-

3

text of a one-party system, without any organized, ongo-

ing Opposition. Congress recognized that union elections

will be fair only if challengers also have opportunities for

early communication with the membership through

§401(c) mailings.

Congress also intended the LMRDA to enable union

members to obtain the knowledge they need to make

informed decisions about union affairs and to cast in-

formed votes in union elections. In the context of the

union member’s “right to know" and the Act’s remedial

purpose, §401(c) must be construed to permit candidates

to mail campaign literature at their own expense any

time during a campaign, when key issues are eme-ging,

candidates are assembling their slates, and the voters’

minds are still open.

Even if this Court concludes that some deference is

due reasonable union election rules in determining the

reasonableness of a candidate’s request for the mailing

of campaign literature, the union rules at issue in this

case are entitled to no deference because they violate

the LMRDA’s legislative purpose and are therefore un-

reasonable. The antidemocratic effects of petitioners’

rules are substantial and far outweigh any legitimate

union interests advanced in their support.

I. THE PLAIN MEANING OF THE LMRDA’S

WORDING REQUIRES THE REASONABLENESS

OF A CANDIDATE’S REQUEST FOR THE MAIL-

ING OF CAMPAIGN LITERATURE TO BE

DETERMINED WITHOUT REGARD TO UNION

ELECTION RULES

According to the clear and unambiguous language of

- §401(c) of the LMRDA, unions must "comply with ail

reasonable requests of any candidate to distribute by

mail or otherwise at the candidate’s expense campaign

lit. ‘ture in aid of such person’s candidacy to all mem-

4

bers in good standing ... ." 29 U.S.C. §481(c)(emphasis

added). Petitioners contend that the reasonableness of a

candidate’s request is to be determined by considering

the reasonableness of union rules limiting the candidate’s

right to mail campaign literature. This position is sup-

ported by neither the language nor the legislative history

of the LMRDA, however, and it must therefore be re-

jected by this Court.

Petitioners can point to nothing in the statute or its

legislative history to support their contention that the

reasonableness of a candidate’s request must be meas-

ured by its consistency with the union’s own election

rules. On the contrary, the LMRDA’s wording and

structure require that the reasonableness of a candidate’s

request for the mailing of campaign literature be deter-

mined exclusively on its own merits, without regard to

inconsistent union rules. Those arguments are fully

made by the respondent and the government. Amici will

simply add a few brief points.

Where Congress intended LMRDA rights to yield to

reasonable union rules, it provided for that result explic-

itly. See LMRDA §101(a)(1), 29 U.S.C. §411(a)(1)

(members’ right to equal treatment "subject to reasona-

ble [union] rules"); id. at §101(a)(2), 29 U.S.C. §411(a)

(2)(members’ freedom of speech and assembly "subject

to . . . reasonable [union] rules"); id. at §401(e), 29

U.S.C. §481(e)(members’ right to run for union office

"subject to . . . reasonable qualifications uniformly im-

posed [by the union]). «

Where such explicit reasonable rule provisos were

omitted from the statute, Congress made it quite clear

that union rules were to yield to the rights and duties

created by the statute and not, as petitioners would have

it, the other way around. For example, §401(e) man-

dates that union elections "shall be conducted in accord-

ance with the [union’s] constitution and bylaws," but

only, however, “insofar as they are not inconsistent with

5

the provisions of this title." 29 U.S.C. §481(e).’

Petitioners and amicus AFL-CIO are beside the

point when they suggest that the decision below some-

how forces unions to abandon all rules governing candi-

dates’ rights to mail campaign literature and compels

union Officials to rely solely on ad hoc decisionmaking

when evaluating candidates’ requests for mailings. The

issue is not whether unions can have election rules.

They can and they should.’ The issue is whether they

can have rules that operate to defeat candidates’ rights

expressly created by §401(c). That they cannot do.

Nothing in the statute suggests that Congress intend-

ed to permit unions, through their election rules, to limit

the effectiveness of a candidate’s mailings or to decide

when meaningful campaigning through the mails could

begin. Had Congress intended to bar early use of

§401(c)’s campaign mailing right, it would have done so

explicitly, just as the same subsection of the Act express-

ly limits a candidate’s right to inspect union membership

* Similarly, in what was effectively Congress’ last word on the subject,

since it was added on the floor of the Senate as part of the union

members’ bill of rights, §101(b) states bluntly that "[aJny provision of

[a union’s] constitution and bylaws . . . which is inconsistent with the

rr of this section shall be of no force or effect.” 29 U.S.C.

1(b).

* For example, union rules could require that the estimated costs of

candidate mailings be tendered. to the union in advance, or that re-

quests for mailings be subm‘tted at least three working days before

the candidate wants the literature mailed, or that all candidate mail-

ings be handled by the XYZ commercial mailing company, all without

substantively interfering with candidates’ §401(c) rights to have their

campaign literature mailed to the union’s membership.

6

lists to the final thirty days of an election campaign.“

To be sure, at an early stage of the legislative proc-

ess, Congress embraced the general principle that unions

should be left free to "operate their own affairs, as far as

possible." S.Rep. No. 1684, 85th Cong., 2d Sess. 4-5

(1958). But the LMRDA as finally enacted contains sig-

nificant restrictions on union self-governance in order to

achieve internal union democracy.” As this Court has

recognized:

[T]he congressional concern to avoid un-

necessary intervention was balanced

against the [goal of] . . . assuring that

union elections would be conducted in

accordance with democratic principles

.... "Congress, although committed to

minimal intervention, was obviously

equally committed to making that inter-

vention, once warranted, effective in car-

rying out the basic aim of Title IV."

Wirtz v. Hotel, Motel & Club Employees, Local 6, 391

U.S. 492, 496 (1968), quoting Wirtz v. Local 153, Glass

Bottle Blowers, 389 U.S. 463, 473 (1968).

Petitioners would effectively remove from _ the

LMRDA the very campaign mailing rights that Congress

regarded as essentia' to democratic self-governance -- .

‘ "Every bona fide candidate shall have the right, once within 30 days

prior to an election . . . to inspect a list containing the names and last

known addresses of all members of the labor organization... .”" 29

U.S.C. §481(c)(emphasis added).

* Thus, the principles of the Senate Report are not a valid guide to in-

terpreting the LMRDA. Levy, “Legal Responses to Rank-and-File

Dissent: Restrictions on Union Officer Autonomy,” 30 Buffalo L.Rev.

663, 684 n.118 (1981); Goldberg, “Cleaning Labor’s House: _Institu-

tional Reform Litigation in the Labor Movement,” 1989 Duke LJ.

903, 938.

thereby exacerbating the overwhelming advantages of in-

cumbency in union elections that the Act was designed

to eliminate.*

Il. UNION LIMITATIONS ON CANDIDATE MAIL-

INGS OF CAMPAIGN LITERATURE UNDER-

MINE THE LMRDA’S LEGISLATIVE PURPOSE

OF LEVELING THE PLAYING FIELD BETWEEN

CHALLENGERS AND INCUMBENTS IN UNION

OFFICER ELECTIONS

A. The LMRDA’s Legislative Purpose Was To

Level The Playing Field Between Challeng-

ers And Incumbents

The LMRDA was enacted to help alleviate two ser-

ious and related problems within the la>»or movement:

the corruption and racketeering that had been exposed

by the McClellan Committee (the Select Senate Commit-

tee on Improper Activities in the Labor or Management

Field), and the autocracy and lack of democracy that

characterized the internal governance of many unions.

See S.Rep. No. 187, 86th Cong.. Ist Sess. 2 (1959), in 1

NLRB, Legislative History of the LMRDA 398 (1960)

(hereinafter "Leg.Hist."). Congress recognized that en-

trenched union officers often become antidemocratic, see

H.Rep. No. 741, 86th Cong., Ist Sess. 1-2 (1959), in 1

Leg.Hist., supra, at 759-60. It therefore chose to regu-

late union elections so as to "end[] . . . autocratic rule by

placing the ultimate power in the hands of the members,

where it rightfully belongs, so that they may . . . bring

about a regeneration of union leadership." 2 Leg.Hist.,

* Absent democratic self-governance, unions have experienced far

more drastic government intrusions in the form of civil RICO trus-

teeships and similar remedies. See, e.g., United States v. Local 560,

International Brotherhood of Teamsters, 780 F.2d 267 (3d Cir. 1985),

cert. denied, 476 U.S. 1140 (1986); see generally Goldberg, supra.

8

supra, at 1099 (remarks of Senator McClellan).

Accordingly, the decisions of this Court have consist-

ently recognized both the substantial advantages incum-

bents enjoy in union elections and the intent of Congress

in enacting the LMRDA to reduce those advantages as a

means of lessening the abuses that Congress found so

frequently to be associated with entrenched leadership.

The Court’s most direct treatment of these issues was in

Wirtz v. Local 153, Glass Bottle Blowers, 389 U.S. 463.

The Court held in that case that a Department of Labor

challenge to a 1963 election of union officers was not

rendered moot by the fact that the defendant union had

conducted another unsupervised election of officers in

1965, before the challenge to the first election could be

resolved. The Court recognized that "only a supervised

election could offer assurance that the officers who

achieved office as beneficiaries of violations of the Act

[in 1963 had] not by some means perpetuate(d] their un-

lawful control in the succeeding election." 389 U.S. at

474. The Court explicitly based that conclusion on "the

abuses surfaced by the extensive congressional inquiry

showing how incumbents’ use of their inherent advantage

over potential rank and file challengers established and

perpetuated dynastic control of some unions," id. -- some

of the very abuses “upon which Congress rested its deci-

sion that the legislation [the LMRDA] was required in

the public interest." /d., citing S.Rep. No. 1417, 85th

Cong., 2d- Sess. 711-12 (1958). "Congress," the Court

continued, ". . . considered the risk of incumbents’ influ-

ence to be substantial, not a mere suspicion." 389 U.S.

at 475.

Similarly, in Wirtz v. Hotel Employees, 391 U.S. 492,

the Court struck down unduly restrictive candidacy re-

quirements because they “can result in the abuses of

entrenched leadership that the LMRDA was expressly

enacted to curb." 391 U.S. at 499. Indeed, so great was

Congress’ intent to eliminate the corruption and autocra-

9

cy that it had seen so often result from incumbency that

the Court in Hotel Employees and Local 3489, United

Steelworkers v. Usery, 429 U.S. 305 (1977), concluded that

the LMRDA’s goal of free and democratic union elec-

tions was "a preventive measure ‘to curb the possibility

of abuse by benevolent as well as malevolent entrenched

leaderships.” 429 U.S. at 309, quoting Hotel Employees,

391 U.S. at 503.

Petitioners suggest that the Court’s decision in

United Steelworkers v. Sadlowski, 457 U.S. 102 (1982),

Tepresents a retreat from the Court’s previous concern

over the advantages of incumbency, Pet. Br. at 16 n.3.

That is not the case. In upholding a union ban on out-

sider contributions to union election campaigns, it is true

that the Court did not go as far as the four dissenters

would have in construing the Act to assist nonincumbent

candidates.’ However, the majority nevertheless express-

ly acknowledged that "there are undoubtedly advantages

to incumbency," 457 U.S. at 115, and that "the ability of

insurgent union members to wage an effective campaign

[is] an interest deserving some protection under the

Statute." /d. at 112. Most important in the context of

the present case, the Sadlowski majority viewed bans on

outsider contributions as furthering congressional intent

to protect unions from being “invaded’ or ‘infiltrated’ by

outsiders" and "to ensure that union members, and not

” The dissenters argued that even "in the best of circumstances, the

role of the challenger is very difficult. And if one keeps in mind that

Congress intended to give the challenger a fair chance even in a union

controlled by unscrupulous leaders with an iron grip on the staff and a

willingness to employ means both within and without the law, it is

wholly unrealistic to confine the challenger to financial support gar-

nered within the union." 457 US. at 128 (White, J., dissent-

ing)(emphasis added). It is even more unrealistic to confine a chal-

lenger’s campaign mailings to a period near the very end of an elec-

tion campaign. By that time, nominations are closed, slates have been

assembled, commitments have been made, alliances formed -- and, all

too often, the minds of the voters already made up.

10

outsiders, control the affairs of their union." Jd. at 116,

quoting Senator McClellan, 2 Leg.Hist., supra, at 1097-

1100. In this case, however, the restriction on campaign

activity functions not to protect unions from outside

domination but, as argued below, only to limit radically

and unnecessarily the period during which meaningful

and informed debate over campaign issues can take

place.

B. The Advantages Of Incumbency Are Particu-

larly Overwhelming In Union Elections

Recognizing that labor laws concretely affect the

lives of millions of working people, this Court has re-

peatedly emphasized the importance of rooting its labor

law decisions in "the realities of labor relations." Del-

Costello v. International Brotherhood of Teamsters, 462

U.S. 151, 167 (1983); see also Humphrey v. Moore, 375

U.S. 335, 358 (1964)(Goldberg, J., concurring). Accord-

ingly, an examination of the realities of union elections

is appropriate, and it demonstrates the overwhelming

advantages incumbent officers almost always enjoy over

their challengers."

The scholarly literature examining elections of union

officers is unanimous in concluding that incumbent offi-

cers have an overwhelming advantage over their chal-

* Although this brief speaks in terms of the advantages of incumbency,

the analysis also applies to those elections where no incumbent is

seeking reelection, but where one candidate has the endorsement of

the retiring incumbent, from which usually follows the support of the

incumbent’s political machine and therefore many of the advantages

of incumbency itself. This was the case, for example, in the 1977

Steelworkers election between Lloyd McBride, the candidate endorsed

by outgoing president 1.W. Abel, and Ed Sadlowski, the candidate cast

in the role of challenger. See United Steelworkers v. Sadlowski, 457

U.S. at 104; James, "Union Democracy and the LMRDA: Autocracy

and Insurgency in National Union Elections,” 13 Harv. C.R.-C.L.

L.Rev. 247, 340-51 (1978).

11

lengers in even the most honest of unions. See, eg., S.

Lipset, M. Trow & J. Coleman, Union Democracy 9-10,

147-48, 229-33, 266-68 (1956); M. Estey, The Unions:

Structure, Development and Management 62 (3d ed.

1981); D. McLaughlin & A. Schoomaker, The Landrum-

Griffin Act and Union Democracy 35, 37 (1979); J.

Wallihan, Union Government and Organization 116

(1985); James, supra, at 270-83; Summers, "Democracy in

a One-Party State: Perspectives From Landrum-Griffin,"

43 Md.L.Rev. 93, 96-99, 113-14 (1984); Note, "Union

Elections and the LMRDA: Thirteen Years of Use and

Abuse," 81 Yale L.J. 407, 419-20 (1972).

Professor Clyde W. Summers, one of the nation’s

leading authorities on union democracy, has cogently

explained some of the ways in which incumbents main-

tain their advantages in union elections, even when in

technical compliance with the election provisions of the

LMRDA:

The [incumbent] . . . inevitably retains

great advantages in mounting election

campaigns. The union newspapers can-

not be used during the election period,

but in the period between elections the

incumbents have a press monopoly. The

newspaper must maintain a pretense of

neutrality during the weeks immediately

before an election, but it can be, and is,

used to praise the officers and their pol-

icies in the years between elections.

Paid employees cannot campaign on

working time except, in the words of the

Secretary of Labor, "campaigning inci-

dental to union business." For staff rep-

resentatives or business agents who are

in constant contact with members, "inci-

dental" campaigning may be pervasive,

and because their function is to handle

12

petitioners in this case.

grievances, negotiate agreements, and

otherwise be of service to the members,

their campaigning is particularly effec-

tive. Many of the paid staff normally

work long and irregular hours. If they

do not campaign during the nine to five

forty-hour week, they will still have

many working hours left in which to

campaign. There is no limitation on

campaigning by those who have been

given unpaid, but much sought after,

committee assignments or other presti-

gious positions.

Beyond these nearly overwhelming or-

ganizational advantages, the incumbents

have equally overwhelming advantages

in raising funds to conduct the cam-

paign. The paid staff is asked to contri-

bute generously, and they understand

that their salary is paid with a lien for

generous amounts....

Opposition groups have no remotely

comparable organization or source of

funds.

Summers, supra, at 113-14 (footnote omitted)... Incum-

bents can reinforce these enormous advantages by

making staff appointments understood by all to be de-

pendent upon staff donations of time and money to the

incumbents’ reelection campaigns, Finnegan v. Leu, 456

U.S. 431 (1982), and by promulgating union rules forbid-

ding challengers from raising campaign funds from non-

members. United Steelworkers v. Sadlowski, 457 U.S. 102.

These advantages of incumbency are not merely

theoretical. That is reflected in the low turnover rates

documented among top officers of national unions like

See Estey, supra, at 62-63;

13

Wallihan, supra, at 116. Even when officer turnover with the members. Ordinarily a union

does occur, it is rarely at the expense of an incumbent: administration’s control of the union

Much has .. . been made of . . . leaders newspaper, local meetings, and inter-

who hold office for life or until they national conventions, and its own full-

time staff whose members are paid to

travel around and talk to local members

and leaders, amount to a near monopoly

of the channels of communication to the

membership . . . . [S]uch monopolization

of the channels of communication, with

the consequent absence of counter-

propaganda, is one of the basic condi-

tions for the effectiveness of propa-

chose to step aside. Those aspiring to

higher leadership positions can either

wait their turn or try to unseat a pre-

sumably well-organized and visible in-

cumbent. In most cases, the first path is

followed, and most office-seekers ad-

vance, as did many of the current lead-

ers, through "dead man’s shoes."

Quaglieri, "The New People of Power: The Backgrounds ganda. This condition . . . is indigenous

and Careers of Top Labor Leaders," 9 J.Lab.Res. 271, to totalitarian states; it is also character-

279 (1988). o istic of the one-party structure of most

labor unions.

j C. Opportunities For Early Mailings Of Cam- .

paign Literature Are Essential If Chal- Such a monopoly over the internal chan-

lengers Are To Have Any Chance Of Over- nels of communications works to reduce

coming The Advantages Of Incumbency the expression of disaffection among the

ically Enjoyed By Their O t membership, and thus to minimize the

a eee political effect of what disaffection there

Control over the means of communication with the is. On the one hand, the only facts and

membership is perhaps the most important of the many viewpoints bearing on union matters

advantages enjoyed by incumbents in union election that are widelv available to the member-

campaigns. This was succinctly explained in a now clas- ship under such conditions are those dis-

sic study of union democracy: seminated by the administration. Offi-

cial policy is justified, while alternative

proposals or programs, if mentioned at

all, are discredited. On the other hand,

even if the membership is not convinced

of the correctness and efficiency of ad-

ministration policies and there is wide-

spread discontent, the discontent

9 °

Officer turnover is generally greater at the local union level, but remains atomized, privatized, or restrict-

among local officers, turnover rates drop by nearly one-third among <3 :

the better paid, who are typically the top officers of large locals. See ed 4 py politically tae oe ra

Applebaum & Blaine, "Compensation and Turnover of Union Offi- and is not focused and organize in

cers,” 14 Indus.Rel. 156 (1975).

[Al major source of administrative

power in most organizations is the

administration’s exclusive control over

the formal channels of communication '

14 15

—a single set of alternative proposals.

Lipset, Trow & Coleman, supra, at 260-61.

This domination of the union press by incumbent

officers was specifically brought to the attention of Con-

gress by no less an authority than Professor Archibald

Cox, who participated in the drafting of the Act as a

consultant to Senator John F. Kennedy, the chair of the

Senate Subcommittee on Labor. See A. McAdams,

Power and Politics in Labor Legislation 77, 244 (1964)

(describing Cox’s role). As Professor Cox testified, the

consequences of that domination are particularly trou-

bling in the context of referendum voting for officers of

national unions, like petitioners in this case: "{I]n a

referendum, [the opposition] must build up national

popularity in competition with the only names well

known to all the members; and the incumbents control

the union newspaper which is the chief vehicle for com-

munication with the members." Hearings on S.505 Before

the Subcommittee on Labor of the Committee on Labor

and Public Welfare, 86th Cong., 1st Sess. 134 (1959).

The §401(c) requirement at issue in this case, that

unions comply with reasonable requests by candidates to

mail campaign literature to the membership at the can-

didate’s expense, was thus an important part of Con-

gress’ response to the problem of incumbent monopoli-

zation of union communication channels. That provi-

sion, therefore, should be interpreted in a manner that

will reduce those advantages of incumbency, not increase

them. Cf. Wirtz v. Local 153, Glass Bottle Blowers, 389

U.S. at 468 (the LMRDA should be interpreted "in light

of the general objectives Congress sought to achieve");

United Steelworkers v. Sadlowski, 457 U.S. at 121-22 (a

question about Congress’s intent in enacting a provision

of the LMRDA is "best answered by identifying the

problem that Congress intended to solve by adopting the

provision")( White, J., dissenting).

16

An interpretation of §401(c) that would deny candi-

dates for union office the opportunity to communicate,

at their own expense, with the union’s membership

through campaign mailings at any time after they have

declared their candidacies would thus undermine that

provision’s legislative purpose by limiting challengers’

access to the very resource -- an ability to communicate

with the electorate -- that Congress intended them to

have in order to overcome the advantages of incumbency

that result from control over union media. It is impossi-

ble to overstate the importance of the right of candidates

to mail campaign literature to the membership pursuant

to §401(c), particularly in large locals and in regional

and national union elections where there is no other way

to reach the entire membership. Indeed, a study spon-

sored by the Department of Labor reported that chal-

lengers who defeat incumbents in union elections most

often credit "the campaign literature mailing right alone

[as] spell[ing] the difference between victory and defeat

for them." McLaughlin & Schoomaker, supra, at 21. See

also L. Sayles & G. Strauss, The Local Uninn 83 (rev. ed.

1967)(in contested union elections, "a given candidate’s

chances for success depend to a considerable extent

upon his communications opportunities").

A candidate’s right to mail campaign literature will

only be effective, however, if that right can be exercised

throughout the campaign, including during its formative

stages. This is so because “the skillful incumbent,"

through control of the union’s media, “will try to estab-

lish an image of invincibility prior to commencement of

an election campaign," in order to discourage potential

challengers from running, and to foster a belief among

the membership that it would be futile and perhaps

foolhardy to support any challengers who do emerge.

Jacobs & Spring, "Fair Coverage in Internal Union Peri-

odicals," 4 Indus.Rel.LJ. 204, 218 (1981)(emphasis in

original). As one might expect, it is also the case that

"the most secure [union officials], politically, are those

17

who campaign twelve months a year." Strauss, "Control

by the Membership in Building Trades Unions," in

Unions and Union Leadership 176, 186 (J. Barbash ed.

1959). Thus, the reality is that most incumbent union

officers, like most elected public officials, in effect begin

their reelection campaigns the day after they take office.

It is crucial, therefore, that challengers have a meaning-

ful opportunity for early campaigning as well. In Wirtz v.

Hotel Employees, this Court noted that "Congress’ model

of democratic [union] elections was political elections in

this country... ." 391 U.S. at 504. In the context of

such political elections, it is well understood that "early

[campaigning can] afford greater exposure to the public

for candidates who were not particularly well known,

thus enabling them to gradually build voter recognition."

Ifshin, "An Analysis of the Impact of the Federal

Election Campaign Act on the 1976 Democratic

Presidential Primary," 18 Santa Clara L.Rev. 1, 31

(1978). Indeed, the importance of early campaigning

was expressly recognized by Congress in §408(c) of the

Federal Election Campaign Act, which subsidizes cam-

paign expenses incurred by presidential candidates as

long as 22 months before the election. 26 U.S.C. §9034.

There is no justifiable reason why candidates for union

office should be prohibited from campaigning, at their

own expense, for just as long.

The need for early communication with the mem-

bers is even more necessary because most unions, as this

Court has recognized, have no “permanent ‘opposition

party’ within the union." Local 3489, United Steelworkers

v. Usery , 429 U.S. at 311. Instead, "[t]here is only a one-

party system consisting of the union’s incumbent officers

and hired staff all controlled from the top down." United

Steelworkers v. Sadlowski, 457 U.S. at 128 (White, J.,

dissenting). Even where an opposition group exists, it

typically has "no stable organizational structure, no offi-

cers or staff, no patronage, no established channels of

communications, and little resources. At best, it is a

18

loose coalition ...." Summers, supra, at 105.

To have any chance of success in these circum-

stances, challengers must have an opportunity to begin

reaching the membership with their message early in a

campaign, long before candidates are formally nomina-

ted. “Educating union members about the merits of a

political platform inherently takes . . . time." Nyden,

“"Democratizing izations: A Case Study of a Union

Reform Movement," 90 AmJ.Soc. 1179, 1193 (1985).

Moreover, in the absence of a permanently organized

opposition party, as the Court noted in Local 3489, Steel-

workers, “opposition to the incumbent leadership is likely

to emerge in response to j issues at different

times." 429 U.S. at 311 (emphasis added). Just as this

fact supported the Court’s Steelworkers decision to strike

down a candidate eligibility rule because it unrealistically

required potential candidates to begin planning their

campaign too soon (eighteen months before the elec-

tion), id., it supports the conclusion that the union’s rule

here unreasonably prohibits opposition candidates from

effectively communicating with the membership about

important issues until late in a campaign, when there is

little time left to mobilize support. Candidates must not

be limited to communicating their views on particular is-

sues only during the final days of an election campaign.

They must be permitted to circulate their views when-

ever they believe the issues are of greatest interest to the

membership. That may be much earlier, when the issues

first arise. That is when challengers can begin laying the

foundation for a successful campaign by acquiring name

recognition and staking out their positions with the elec-

torate.

Petitioners stress the fact that, in their union, candi-

dates can nominate themselves without any prerequisite

showing of membership support. Pre-nomination cam-

paigning, petitioners suggest, is therefore unimportant.

Pet. Br. at 24 n.8. But ihe importance of waging an

19

effective campaign before nomination is not limited

simply to achieving formal nomination. By facilitating

the formation of coalitions among diverse opposition

elements within the union and by recruiting like-minded

members into those coalitions, pre-nomination campaign-

ing also enhances the likelihood that a unified slate of

challengers will emerge to unseat incumbents, which

substantially improves that slate’s prospects for success.

Department of Labor regulations and several lower

courts have established that members can be "bona fide

candidates" for purposes of §401(c) campaign mailings

before they are formally nominated, and unions cannot

be permitted to nullify that determination. 29 C.F.R.

§452.80 (1989); Cotter v. Helmer, 692 F.Supp. 313 (S.D.

N.Y. 1988); Morrissey v. Curran, 356 F.Supp. 312 (S.D.

N.Y. 1973); Yablonski v. United Mine Workers, 71 LR.

R.M. 2606 (D.D.C. 1969).

Amici urge that candidates for union office be per-

mitted to exercise their §401(c) rights to mail campaign

literature to the membership almost any time an an-

nounced candidate willing and able to bear the cost of a

mailing requests one.” Requests for mailings should be

presumed "reasonable" unless the union can demonstrate

that the request imposes unjustifiable logistical burdens

on the union. For example, it would be unreasonable

for a candidate to refuse to comply with a uniformly

applied union requirement that the estimated costs of

the mailing be tendered in advance. See 29 C.F.R.

§452.69 (1989). Similarly, it would be unreasonable for

a candidate to deliver campaign literature to the union

° This view is consistent with that of experts on union democracy,

Suggest

who that candidates need opportunities to reach the member-

ship for at least six months before an election but caution that “{c]on-

sidering how carly the campaigns begin in [some unions], even this

may not be enough.” J. Edelstein & M. Warner, Comparative Union

Democracy: Organization and Opposition in British and American 367

(rev.ed. 1979).

20

at 9 a.m. and demand that it be processed in time to be

sent out in that day’s 10 a.m. mail. On the other hand, a

union “may not refuse to distribute campaign literature

merely because it may have a small staff which cannot

handle such distributions for all candidates." Jd. In such

cases, "the organization may employ additional tempora-

ry staff or contract the job to a professional mailer and

charge the expense incurred to the candidates for whom

the service is being rendered." Jd. Since mailings in

large national unions, even at bulk rates, can cost tens of

thousands of dollars, see James, supra, at 279, few candi-

dates will be in a position to exercise their §401(c) mail-

ing rights frivolously, especially in the face of Sadlowski-

type bans on outsider contributions to their campaigns.

In any event, a candidate’s request, as here, for a

mailing of campaign literature a mere two months be-

fore an election is comfortably within any appropriate

definition of what a “reasoned request" might be.

III. OPPORTUNITIES FOR EARLY MAILINGS OF

CAMPAIGN LITERATURE FURTHER THE

LMRDA’S LEGISLATIVE PURPOSE OF ENA-

BLING UNION MEMBERS TO BE INFORMED

ABOUT UNION AFFAIRS

A fundamental assumption underlying the enactment

of the LMRDA was that, "Given the maintenance of

minimum democratic safeguards and detailed essential in-

formation about the union, the individual members are

fully competent to regulate union affairs." S.Rep. No.

187, supra, at 7, in 1 Leg.Hist., supra, at 403 (emphasis

added). Congress was “confident that union members

... having the benefit of secret elections . . . would rid

themselves of untrustworthy or corrupt officers,” but that

confidence was premised on a membership “armed with

adequate information." Id. at 9, 1 Leg.Hist. at 405 (em-

phasis added).

21

In order to "arm" union members with the knowl-

edge they need to make informed decisions about union

affairs and to cast informed votes in union elections,

Congress repeatedly included throughout the LMRDA

reporting, disclosure, and free speech provisions that

together amount to nothing less than a union member’s

"right to know." See, eg, LMRDA §104, 29 U.S.C. §414

(member’s right to copies of collective bargaining agree-

ments); id. at §105, 29 U.S.C. §415 (obligation of unions

to inform members of theirerights under the Act); id. at

§201(a), 29 U.S.C. §431(a)(obligation of unions to adopt

detailed constitutions and bylaws and make them availa-

ble to the members); id. at §201(b), 29 U.S.C. §431(b)

(financial reports of unions and union officers); id. at

§201(c), 29 U.S.C. §431(c)(member’s right to examine

union and officer financial reports and, "for good cause,"

any union books, records, and accounts); id. at §301, 29

U.S.C. §461 (trusteeship reports); id. at §401(c), 29

U.S.C. §481(c)(candidates’ right to inspect union mem-

bership lists); id. at §501(b), 29 U.S.C. §501(b)(mem-

ber’s right to an accounting).

The union member’s right to know implicit in these

reporting and disclosure provisions is rooted further in

the equal rights and free speech provisions of Title I’s

bill of rights for union members." LMRDA §§101(a)(1)

& (2), 29 U.S.C. §§411(a)(1) & (2). Lower courts have

repeatedly found in the members’ Title I rights to vote

in union elections or referenda and to speak freely at

union meetings or elsewhere about candidates for union

office or other aspects of union affairs a right to in-

formed voting and informed discussion. As one court ex-

"' This Court has indicated that Title IV should be interpreted in light

of the provisions of the subsequently added Title I precisely because

Congress feared that Title IV did not provide sufficient protection to

union members. United Steelworkers v. Sadlowski, 457 U.S. at 117

n.10. See also Local 82, Furniture and Piano Movers v. Crowley, 467

U.S. 526, 556 (1984)(Stevens, J., dissenting).

22

plained:

The right to express views in ignorance

of facts is a hollow right. Though the

ignorance of the member is no basis for

suppressing his views, a union can hardly

be said to be affording a member the

right to “express . . . views, arguments,

or opinions . . . upon any business” of

the union when a union deliberately . . .

keeps its members in ignorance.

Daniels v. Post Office Mail Handlers, 454 F.Supp. 336,

339 (E.D.Va. 1978). According to another court, union

officers have a fiduciary duty "to see that the lines of

communication and dissemination of views and opinions

are kept open and working, especially as to matters on

which members will be asked to vote." Blanchard v.

Johnson, 388 F.Supp. 208, 214 (N.D. Ohio 1975), modi-

fied on other grounds, 532 F.2d 1074 (6th Cir.), cert.

denied, 429 U.S. 869 (1976).

The LMRDA’s right to know is particularly impor-

tant in the context of union referenda. Several courts

have implied under Title I, at least under certain circum-

stances, a union obligation to provide dissidents with the

means (at their own expense) of communicating to the

membership the dissidents’ views on referendum issues.

See, e.g., Rural Letter Carriers, Knox County Local v.

Rural Letter Carriers, 720 F.2d 936 (6th Cir. 1984)(union

must allow local opposed to ratification of collective

bargaining agreement to advertise in union’s magazine);

Lodge 1389, B.R.A.C. v. Dennis, 625 F.2d 819 (9th Cir.

1980)(local union stated claim cognizable under §101

(a)(2) when it sought access to national union’s member-

ship list for purposes of campaigning for membership

ratification of a proposed amendment to the national

union’s constitution); Sheldon v. O’Callaghan, 497 F.2d

1276 (2d Cir.), cert. denied, 419 U.S. 1090 (1974)(union

required to give dissidents’ mailing service access to

23

union membership list); Cotter v. Helmer, 692 F.Supp.

313 (relying on §101(a)(2) as well as §401(c) to grant

candidate pre-nomination mailing rights related not only

to the business manager election but also to a vote at a

membership meeting on incumbent business manager’s

proposal that candidate be removed from assistant busi-

ness manager position); Blanchard v. Johnson, 388 F.

Supp. 208 (members opposing incumbents’ proposal have

right to distribute literature through independent agency

conducting the referendum).

In the context of union officer elections, deference

to Congress’ remedial purpose of promoting informed

discussion and informed voting requires that §401(c) be

construéd to permit candidates to mail campaign litera-

ture during the crucial early stages of a campaign, when

key issues are starting to emerge, candidates are assem-

bling their slates, and voters’ minds are still open. Cf.

Whirlpool Corp. v. Marshall, 445 U.S. 1, 13 (1980)(reme-

dial legislation should be liberally construed). Discus-

sions of union policies and programs become most

meaningful when they are linked to election contests.

When members believe it is actually possible to affect

policy by electing or defeating candidates who are

pledged to specific policies, all discussions are brought

from a level of abstraction to one of concrete possibility.

Members are aroused to take an interest in union affairs

when they realize that they can implement a program by

electing candidates pledged to that program. By putting

forth his or her candidacy, a union member makes clear

that he or she is not simply blowing off steam but is

serious about his or her proposals and intends to carry

them out. Such conditions stimulate democratic discus-

sion by the entire membership, and the democracy in

unions that Congress intended to promote with the

LMRDA grows stronger.

24

IV. PETITIONERS’ RULES RESTRICTING A CANDI-

DATE’S RIGHT TO MAIL CAMPAIGN LITERA-

TURE ARE ENTITLED TO NO DEFERENCE BE-

CAUSE THEIR ANTIDEMOCRATIC EFFECTS

FAR OUTWEIGH ANY LEGITIMATE UNION

INTERESTS THEY MAY SERVE

Amici contend that the reasonableness of a candi-

date’s request for the mailing of campaign literature

should be determined without regard to inconsistent

union election rules. If, however, this Court concludes

that some deference is due union rules in this context,

the appropriate test for judging the reasonableness of

those rules can be found in Local 3489, United Steel-

workers v. Usery, 429 U.S. 305. In that case, involving

the “reasonable qualifications" that §401(e) permits

unions to establish for union members to be eligible to

run for union office, the Court held that reasonableness

must be determined by balancing "the antidemocratic ef-

fects of the . . . rule [against] . . . the [union] interests

urged in its support." 429 U.S. at 310.”

In applying this test, courts must be aware of the

fact that many of the antidemocratic consequences of the

one-party system that produce electoral advantages for

incumbents are also at work when incumbents put for-

ward electoral rules that limit efforts by challengers. For

? This test is consistent with that developed in the analogous context

of the internal union affairs proviso found in §8(b)(1)(A) of the

National Labor Relations Act, 9 US.C. $158(0)(1)(A). That proviso

shields unions from unfair labor practice charges when they discipline

members for violating union ‘eats Git eeegaee ts the enghien or

retention of [union] membership.” In Scofield v. NLRB, 394 U.S. 423,

of §8(b)(1)(A)’s proviso. See, e.g., Helton v. NLRB, 656 F.2d 883, 893

-96 (D.C.Cir. 1981)); Carpenters Local 22, 195 N.L.R.B. 1 (1972).

25

that ~eason, union restrictions on challengers’ abilities to

campaign effectively must be "strictly scrutinized and

stringently tested." Summers, supra, at 116.

The antidemocratic effects of the union’s rule in this

case are substantial, and they easily outweigh the rela-

tively minor union interests urged in its support by peti-

tioners. As argued previously, under even the best of

circumstances, opportunities for early mailings of cam-

paign literature are essential to further the LMRDA’s

legislative purpose of leveling the playing field between

challengers and incumbents in union officer elections. In

maritime unions like the petitioner union, where mem-

bers are dispersed and isolated on ships all over the

globe for months at a time because of the nature of

their work, the need for early campaign mailings is even

greater if challengers are to have any chance of over-

coming the advantages of incumbency enjoyed by their

opponents.

__ The union’s rule in this case prohibits §401(c) mail-

ings of campaign literature until the final days of a cam-

paign and therefore operates to deny the union’s scat-

tered membership any meaningful opportunities to have

informed discussions among themselves about the candi-

dates and the issues at stake in the election. The

union’s rule thus produces the overwhelmingly antidemo-

cratic effects of (1) prolonging the incumbents’ monopoly

over the channels of communication with the member-

ship, (2) crippling the efforts of challengers to form

coalitions and generate a unified slate of candidates, and

(3) forcing the members to cast their ballots without the

benefit of informed discussion and debate.

_ Only the strongest of union interests would be suffi-

cient to outweigh the antidemocratic effects of the

union’s rule in this case, and the interests identified by

petitioners and amicus AFL-CIO do not even come

close. Certainly the cost of postage or processing is not

a factor justifying union restrictions on §401(c) mailing

26

rights, since the statute expressly requires the candidates

to bear those costs. Nor can petitioners claim credibly

that early or frequent candidate mailings will impose any

significant administrative or logistical burdens on the

union- Department of Labor regulations make clear that

unions with small staffs may hire temporary help to

handle the mailings or contract the jobs out to a com-

mercial mailing house, and charge the expenses incurred

to the candidates who requested the mailings. 29 C.F.R.

§452.69 (1989). Making such arrangements in most

cases would entail no more than a few telephone calls.

Petitioners claim that by prohibiting campaign mail-

ings until after candidates are formally nominated and

certified, their rule "protects the campaign’s integrity .. .

[by] restrict[ing] the use of the mailing procedure to

actual, eligible candidates." Pet. Br. at 23. Accordingly,

they argue, the rule frees them of the burden of having

to "continuously assess" candidates’ requests for mailings,

forcing the union’s officers to “tak[e] time from their

other important responsibilities." Jd. at 24. That argu-

ment, however, is largely premised on the faulty assump-

tion that only candidates who have been formally nomi-

nated are entitled to campaign mailings under §401(c).

Once that assumption is abandoned -- as it must be in

accordance with Department of Labor regulations and

court decisions, supra, at p.20 -- there is very little left

for a union legitimately to "assess" in responding to a

candidate’s request that his or her campaign literature

be mailed to the union’s membership. All the union

need consider is whether the candidate has declared his

or her intent to seek office and whether the candidate

has complied with such reasonable mailing related rules

as requirements that the candidate tender payment for

the estimated costs of the mailing in advance.

Determinations that candidates meet the union’s

reasonable qualifications for office will have to be made

sooner or later for every candidate in any event. If a

union believes it is more efficient to postpone those

27

determinations until such time as candidates are formally

nominated, nothing in §401(c) would prevent it from

doing so, as long as announced candidates are not

deprived of their mailing rights in the meantime.

_ Petitioners and amicus AFL-CIO also argue that the

union’s rule in this case is reasonable because it pro-

motes uniformity in the handling of candidates’ requests

for mailings, thereby reducing the risks of discrimination

inherent in ad hoc decisionmaking. As the court ex-

plained in Alvey v. General Electric Co., 622 F.2d 1279,

1286 (7th Cir. 1980), however, "[t]he need for uniformity

. . . is analytically empty for our purposes because virtu-

ally any rule imposed by a. . . union -- even rules im-

properly based on race, sex, or religion -- would include

the characteristic of uniformity." The fatal flaw in peti-

tioners’ refusal to honor respondent’s §401(c) request to

mail campaign literature was not that it was based on a

union rule, but that it was based on an unreasonable

union rule -- one that effectively deprives union mem-

bers of timely information needed for full and fair deci-

sionmaking, thereby violating the LMRDA and its legis- -

lative purpose of leveling the playing field between chal-

lengers and incumbents.

Thus, petitioners in this case have failed to identify

any legitimate union interests served by their restriction

on candidates’ campaign mailing rights that can outweigh

a re. substantial antidemocratic effects of those re-

Strictions.

CONCLUSION

For the foregoing reasons, amici urge this Court to

affirm the judgment of the court below.

Respectfully submitted,

Michael J. Goldberg

(Counsel of Record)

Widener University School of Law

3800 Vartan Way

Harrisburg, Pennsylvania 17110

(717) 541-3938

Helen Hershkoff

John A. Powell

American Civil Liberties Union

Foundation

132 West 43 Street

New York, New York 10036

(212) 944-9800

Susan Goering

ACLU of Maryland

2219 St. Paul Street

Baltimore, Maryland 21218

(301) 889-8555

Judith R. Schneider

Association for Union Democracy

30 Third Avenue, #619

Brooklyn, New York 11217

(718) 855-665"

Clyde W. Summers

University of Pennsylvania

School of Law

3400 Chestnut Street

Philadelphi:, Pennsylvania 19104

(215) 898-6867

Dated: September 26, 1990

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