Opposition Brief — Local 1011, United Steelworkers v. Herman

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No. 00-129

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In the Supreme Court of the Gnited States

LOCAL 1011, UNITED STEELWORKERS OF AMERICA,

AFL-CIO, CLC, PETITIONER

Vv.

ALEXIS HERMAN, SECRETARY OF LABOR

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

BRIEF FOR THE RESPONDENT IN OPPOSITION

SETH P. WAXMAN

Solicitor General

Counsel of Record

HENRY L. SOLANO Department of Justice

Solicitor of Labor Washington, D.C. 20530-0001

NATHANIEL I. SPILLER

202) 514-2217

Deputy Associate Solicitor

MARKS. FLYNN

Attorney

Department of Labor

Washington, D.C. 20210

QUESTION PRESENTED

Whether a rule restricting candidacy for union office

to union members who have attended eight monthly

meetings during the two-year period preceding nomina-

tions (or have been excused from attendance) is a

reasonable qualification for candidacy under Section

401(e) of the Labor-Management Reporting and Dis-

closure Act of 1959, 29 U.S.C. 481(e).

(I)

TABLE OF CONTENTS

Page

ECR EAE EN ee eee 1

a camslpusaitoal 1

RCAC SF RIES oS OR Nee 2

EES ENE ESTERS OOO NT TR 6

tia si ia prenirhcamsnisbomiesonasianieniisiane 18

TABLE OF AUTHORITIES

Cases:

Black v. Cutter Labs., 351 U.S. 292 (1956) veccccccccccccccsccosees 11

Doyle v. Brock, 821 F.2d 778 (D.C. Cir. 1987) ....cesscsssess0e- 4, 12,

13, 15

Herman v. Springfield Mass. Area, Local

497, Am. Postal Workers Union, 201 F.3d 1 (1st

i IIIS aiid salaacusteadntaiaielensieuntesecdpunnediccsisenneinnnss 5, 12,14

Local 3489, United Steelworkers v. Usery, 429 U.S.

TT tabla ach oiiseiNnsahsissneasihcticininissisnabesinies 3, 7, 8, 9, 10, 11

Marshall v. Local 1402, Int'l Longshoremen’s

Ass’n, 617 F.2d 96 (5th Cir.), cert. denied,

I iota seit Achnccitacsbpsnasacpsboaedebihaniinsinnsonen 12, 13

Wirtz v. Hotel Employees Union, Local 6, 391 U.S.

a TT 1b aise cel tnsalasteacacinsidludaabiesahaeaintnaneseosapotndioriooesibenisshoices 7

Statute and regulation:

Labor-Management Reporting and Disclosure Act

of 1959, 29 U.S.C. 401 et seq.:

pO I, GE OE BOB, vancicsuscnscsnsnvorssessncavssveonsensson 2

RMT EAD, SUUUIND vo sscasensesconstssannsaatascentasaccanen 2

§ 401(e), 29 U.S.C. 481(e) ....cececsssssseeees 2, 3, 6, 7, 12, 16

BR RA MID csssvibesocnsseccsssvessesenstonscoennsases 3

Ig OP OLLI, GERRI) osesccorsscninnsoracesssssossousorsssoces 8, 15

I TT PA MIU) iciemsinsassosscccssssnesincennonceveebinsne 3

Tit. V, 29 U.S.C. 501 et seq.:

Se INE PIR: BPE ies ssichuhinsannsbscininsbawbantnniesdainibanins 2

SSS EIS EHS re ee on 4,10

(IIT)

IV

Miscellaneous: Page

Letter from Francis X. Burkhardt, Assistant Secre-

tary of Labor, to Lloyd McBride & Lynn R. Williams,

United Steelworkers (Sept. 15, 1978) .......sssscssssssessessesesees 17

Letter from Edmundo A. Gonzales, Deputy Assistant

Secretary for Labor-Management Standards, to

George F. Becker, International President, United

Stoolworwars CAS. TD, IDG) sncceceiccsvsssssresssenivennivsasapesnanconss 17

Jn the Supreme Court of the Gnited States

No. 00-129

LOCAL 1011, UNITED STEELWORKERS OF AMERICA,

AFL-CIO, CLC, PETITIONER

Vv.

ALEXIS HERMAN, SECRETARY OF LABOR

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS |

FOR THE SEVENTH CIRCUIT

BRIEF FOR THE RESPONDENT IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1a-8a)

is reported at 207 F.3d 924. The opinion of the district

court (Pet. App. 9a-35a) is reported at 59 F. Supp. 2d

770.

JURISDICTION

The judgment of the court of appeals was entered on

March 23, 2000. On June 12, 2000, Justice Stevens

extended the time within which to file a petition for a

writ of certiorari to and including July 21, 2000, and the

petition was filed on that date. The jurisdiction of this

Court is invoked under 28 U.S.C. 1254(1).

(1)

2

STATEMENT

1. Title IV of the Labor-Management Reporting and

Disclosure Act of 1959 (LMRDA or Act), 29 U.S.C. 481

et seq., prescribes requirements governing the election

of officers of labor organizations. Every local labor

organization covered by the Act is required to conduct,

at least once every three years, an election of its offi-

cers by secret ballot among its members in good

standing. 29 U.S.C. 481(b). Section 401(e) of the Act

further provides that:

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

reasonable qualifications uniformly imposed).

29 U.S.C. 481(e).'

2. Petitioner Local 1011, United Steelworkers of

America, is a labor organization covered by the

LMRDA. Pet. App. 10a. Chartered by and subordinate

to the United Steelworkers of America, AFL-CIO (the

International), petitioner is subject to the Interna-

tional’s constitution, which provides that, in order to be

eligible for election as a local officer, a member shall

have attended at least one-third of the regular meetings

of the local during the 24-month period preceding the

election. Jd. at 10a-1la. Because meetings are held on a

monthly basis, the rule requires members to have

attended eight of 24 meetings during that period. A

member’s absence from a meeting may be excused if it

is due to his or her union activities, working hours,

1 Section 504 of the Act, 29 U.S.C. 504, which disqualifies from

union office persons convicted of certain offenses, is not at issue in

this case.

3

service in the armed forces, confining sickness, or jury

duty. J/bid. If a member has one or more excused

absences, however, the member must have attended

one-third of the meetings from which he or she was not

excused. Jd. at 4a, 10a-1la.

In April 1997, petitioner conducted an election gov-

erned by the constitution’s meeting-attendance rule.

Pet. App. 10a. At the time of the election, petitioner

had 2990 members in good standing. /d. at lla. Only 95

members (3.1%) had attended eight or more of the 24

monthly meetings in the two-year period preceding the

election. bid. Even after consideration of the rule’s

excuse provision, only 242 members (8%) were eligible’

for nomination. /bid.

After unsuccessfully protesting the election to

petitioner and the International, two union members

filed complaints with respondent Secretary of Labor in

which they alleged that the meeting-attendance rule

was not a reasonable candidacy qualification under

Section 401(e) of the LMRDA. Pet. App. 11a-12a; see

29 U.S.C. 482(a). The Secretary found probable cause

to believe that petitioner had violated the Act by main-

taining the meeting-attendance rule. Pet. App. 12a.

3. The Secretary then brought this action against

petitioner under Section 402(b) of the LMRDA, 29

U.S.C. 482(b), to set aside the election on the ground

that petitioner had imposed an unreasonable qualifica-

tion for candidacy—the meeting-attendance rule—and

that that violation of Section 401(e) may have affected

the outcome of the election. See 29 U.S.C. 482(c). The

district court granted summary judgment in favor of

the Secretary. Pet. App. 9a-35a.

Relying on Local 3489, United Steelworkers v. Usery

(Steelworkers), 429 U.S. 305 (1977), in which this Court

invalidated the International’s previous rule requiring

4

attendance at one-half of the monthly meetings over

three years, the district court held that the reasonable-

ness of the meeting-attendance requirement should be

evaluated under a multi-factor test.’ The district court

therefore considered the percentage of union members

whose candidacy was excluded by the rule (92%), how

far in advance of nominations a candidate would be

required to begin attending meetings in order to qualify

(eight months), and petitioner’s justifications for the

rule. Pet. App. 16a, 25a-28a. The court concluded that,

despite its excuse provisions, the rule imposed a sub-

stantial burden on the democratic process by requiring

prospective candidates to begin attending meetings

eight months in advance of nominations. The court held

that petitioner’s interests in encouraging attendance at

its meetings and having candidates with demonstrated

commitment and knowledge about union affairs did not

justify the rule’s anti-democratic effect, because the

rule had not encouraged attendance, and the electorate

could itself judge the commitment and knowledge of the

—eandidates. Id. at 32a-33a.

4, The court of appeals affirmed. Pet. App. la-8a.

The court agreed with the district court that the per-

centage of union members disqualified by the rule was

not dispositive of its reasonabieness, and that a footnote

in the Secretary’s interpretive regulations, 29 C.F.R.

452.38(a) n.25, that suggested a per se test based on

that percentage was entitled to little weight. Pet. App.

2 The district court declined to accord deference to the Secre-

tary’s position that the high exclusion rate was determinative

because her interpretation was not based on application of her

expertise but rather on acquiescence in the decision in Doyle v.

Brock, 821 F.2d 778 (D.C. Cir. 1987), which the court believed

misinterpreted Steelworkers. Pet. App. 22a, 26a.

5

5a-6a (relying in part on Herman v. Springfield Mass.

Area, Local 497, American Postal Workers Union

(Postal Workers), 201 F.3d 1, 4 (1st Cir. 2000) (rejecting

per se test based on percentage of membership

disqualified because that percentage may reflect

member apathy as well as burden imposed by meeting-

attendance rule)).

Citing Steelworkers and subsequent decisions of the

courts of appeals (including those on which petitioner

relies), the court articulated a standard for evaluating

meeting-attendance requirements that it believed was

“eonsistent with the case law.” Pet. App. 6a. Under

that approach, a condition of eligibility that disqualifies

the vast bulk of the union’s membership from standing

for union office is presumed unreasonable. Ibid. The

union must “then present convincing reasons, not

merely conjectures, why the condition is either not

burdensome or though burdensome is supported by

compelling need.” Jbid. The court concluded that this

approach appropriately distinguishes, as did the First

Circuit in Postal Workers, between a rule’s impact

(which may merely reflect members’ apathy) and its

burden. Jbid.

Applying that standard, the court concluded that the

petitioner had not established a lack of burden:

Requiring attendance at eight meetings in two

years imposes a burden because it compels the

prospective candidate not only to sacrifice what may

be scarce free time to sit through eight meetings,

but also, if he is disinclined to attend meetings for

6

any reason other than to be able to run for union

office, to make up his mind whether to run many

months before the election.

Pet. App. 7a. The court further concluded that peti-

tioner had not satisfied the “onus of justification” that

the rule was supported by compelling need. Jbid. The

court held that the slight turnout at meetings demon-

strates that the rule had not been successful in

bolstering attendance by persons who might want to

run for union office in opposition to incumbents. Jbid.

Furthermore, the court noted that the union had

apparently given no consideration to other inducements

to attend meetings, and that petitioner had made no

argument that a three-meeting rule, like that approved

in Postal Workers, which would provide a longer

window of opportunity to decide on candidacy, would

fail to satisfy the union’s desire to have experienced and

committed officers. Jd. at 7a-8a.

ARGUMENT

The decision of the court of appeals correctly con-

cludes that petitioner’s meeting-attendance rule is not a

reasonable qualification for candidacy for union office

under Section 401(e) of the Labor-Management Report-

ing and Disclosure Act of 1959 (LMRDA), 29 U.S.C.

481(e). The decision does not conflict with any decision

of this Court or any other court of appeals. To the

extent there is tension among the courts of appeals

regarding the appropriate analysis for determining the

reasonableness of meeting-attendance rules, this case is

not a suitable one in which to resolve the tension. This

Court’s review is therefore not warranted.

1. Section 401(e) of the LMRDA guarantees union

members in good standing the right to be candidates for

union office, subject only to “reasonable qualifications

—

7

uniformly imposed.” 29 U.S.C. 481(e). Petitioner con-

tends (Pet. 17-18) that the court of appeals adopted an

“entirely novel” and unsupported approach in deter-

mining whether petitioner’s meeting-attendance re-

quirement is a reasonable qualification under Section

401(e). Contrary to that contention, the approach of the

court of appeals is supported by this Court’s seminal

decision on the issue, Local 3489, United Steelworkers

v. Usery (Steelworkers), 429 U.S. 305, 310 (1977), in

which the Court held that a prior version of the

meeting-attendance rule, which required that candi-

dates have attended at least one-half of the union’s

regular monthly meetings during the three years

before the election, was not a reasonable qualification.

Consistent with the LMRDA’s command that unions

conduct free and democratic elections, Congress in-

tended Section 401(e)’s authorization of reasonable

qualifications to be narrowly construed. See Wirtz v.

Hotel Employees Union, Local 6, 391 U.S. 492, 499

(1968). Moreover, the LMRDA’s check on the power of

incumbents is “seriously impaired by candidacy

qualifications which substantially deplete the ranks of

those who might run in opposition to [them].” Jbid. In

accordance with these principles, the Court in

Steelworkers placed strong emphasis on the previous

meeting-attendance rule’s high rate of exclusion in

holding that the rule was unreasonable. 429 U.S. at

309-310. The Court explained that “an attendance re-

quirement that results in the exclusion of 96.5% of the

members from candidacy for union office hardly seems

to be a ‘reasonable qualification’ consistent with the

goal of free and democratic elections.” Jd. at 310. The

Court also rejected the union’s argument that the rule

was permissible because it imposed a qualification that

any member could meet by attending 18 brief meetings

8

over a three-year period. /d. at 310-311. The Court

concluded that the union’s argument “misconceive[d]

the evil at which the statute aims” because the eligibil-

ity rule must be judged “not by the burden it imposes

on the individual candidate but by its effect on free and

democratic processes of union government.” /d. at 310-

311 n.6. Moreover, the Court explained, even if exam-

ined as a procedure for qualification, the rule had a

restrictive effect on union democracy because members’

interest in changing union leadership is “likely to be at

its highest only shortly before elections.” Jd. at 311.

The Court also rejected the union’s argument that

the rule was reasonable because it encouraged atten-

dance at union meetings. Steelworkers, 429 U.S. at 312.

The Court held that, given the members’ low atten-

dance rate, the rule had not served the purpose of

generating attendance by members generally; and, as

to encouraging the attendance of potential dissident

candidates, the Court reiterated that “very few mem-

bers * * * are likely to see themselves as [candidates]

sufficiently far in advance of the election to be spurred

to attendance by the rule.” Jbid. Finally, the Court

held that, as to the goal of assuring knowledgeable and

dedicated leaders, Congress determined in the LMRDA

that the best means to achieve that end is to leave the

choice of leaders to the membership in open and

democratic elections, unfettered by arbitrary exclusions

that bar the bulk of members. Jbid.

In holding that the revised meeting-attendance rule

at issue here is also not a reasonable qualification, the

court of appeals considered the same factors that this

Court considered in Steelworkers. As compared to the

previous, invalid rule, the revised rule reduced the

number of required meetings (to one-third of the meet-

ings over a two-year period) and expanded the types of

9

excused absences.*® The court of appeals first held that

a condition of eligibility that disqualifies the vast bulk

of the union’s membership (here 92%) from standing for

candidacy is presumptively unreasonable and shifts the

burden to the union to present reasons justifying the

rule. A presumption of unreasonableness finds strong

support in this Court’s bedrock conclusion in Steel-

workers that a rule that excludes such a high percent-

age of the membership (there over 96%) “hardly seems

to be a ‘reasonable qualification’ consistent with the

goal of free and democratic elections.” 429 U.S. at 310.

Petitioner does not directly challenge this burden-

shifting analysis, but rather contends (Pet. 17) that the

court of appeals unduly restricted the factors that can

be considered to justify a rule. To substantiate this

assertion, petitioner cobbles from disparate portions of

the court of appeal’s opinion “a three factor test” (Pet.

17 & n.8) that the court itself did not articulate or

impose.‘ Contrary to petitioner’s formulation, the court

3 The original rule allowed excuses only for absences due to a

conflict with a member’s union activities or working hours. Steel-

workers, 429 U.S. at 306-307.

4 For example, petitioner asserts that the third criterion of the

lower court’s test is that the union must “show that its meetings

are conducted according to various procedures of that court’s de-

vising, such as mailing of agendas in advance of each meeting to all

members.” Pet. 17 n.3. This “criterion” is taken from a portion of

the court’s opinion in which the court described the absence of

information in the record on the nature of petitioner’s meetings.

There is no indication in that discussion, Pet. App. 3a, or in the

court’s later formulation and application of its standard, id. at 6a-

8a, that the court intended compliance with such supposed proce-

dural requirements to constitute one criterion in a three-part test.

Similarly, the court in its general discussion questioned the legiti-

macy of the union interest underlying the rule, when members, by

dint of the excuse provision, can qualify without having attended a

10

of appeals held that a union could rebut the presump-

tion by showing that a rule “is either not burdensome or

though burdensome is supported by compelling need.”

Pet. App. 6a. That open-ended formulation permits

consideration of all the factors contained in the Secre-

tary’s interpretive regulation addressing meeting-

attendance rules, 29 C.F.R. 452.38(a), which this Court

cited approvingly in Steelworkers and which petitioner

appears to accept (Pet. 19) as the appropriate multi-

factor test for determining reasonableness.

Moreover, the reasons that the court of appeais gave

for concluding that the rule in this case was burden-

some and unsupported by compelling need are harmoni-

ous with Steelworkers. For example, the court’s deter-

mination that the rule imposed an undue burden was

based, in large measure, on its recognition that an

eight-monthly-meeting rule requires members to make

up their minds about candidacy many months before

the election. Pet. App. 7a. That consideration mirrors

Steelworkers’ recognition that issues that motivate

union candidacy are likely to arise only shortly before

the election. 429 U.S. at 311. And, although the time

before the election by which a candidate was required

to begin attending meetings was lengthier in Steel-

workers than in this case—18 months instead of eight

months—the issue of the precise period of time that

crosses the reasonableness threshold is not worthy of

this Court’s review. That is particularly true here

because the court of appeals’ conclusion that eight

months is too long is consistent with the conclusions of

single meeting. /d. at 4a. In its application of the standard,

however, the court nowhere stated, as petitioner contends (Pet.

20), that the existence of an excuse provision is fatal to a rule’s

reasonableness.

11

other courts of appeals on the question. See p. 13,

infra.

The further ruling of the court of appeals that peti-

tioner did not show an underlying purpose that would

justify the rule also mirrors the Court’s reasoning in

Steelworkers. For example, as this Court had in

Steelworkers, the court of appeals relied on the low

turnout at union meetings as evidence that the rule was

ineffective in accomplishing the goal of promoting

attendance by members generally or by opponents of

the incumbents in particular. Compare Pet. App. 7a

with Steelworkers, 429 U.S. at 312. Moreover, the court

reasonably relied on the union’s failure to consider

alternative means to induce attendance at meetings, or

to make any argument that its interests would not be

adequately served by a rule requiring attendance at

fewer meetings, permitting a later decision to commit

to running for office. Pet. App. 7a.

2. Petitioner contends (Pet. 11-18) that this Court’s

review is needed because the courts of appeals have

read Steelworkers in “three different and irreconcilable

ways.” Pet. 11. Contrary to that contention, the courts

of appeals have reached consistent holdings in cases

that have presented different facts. Although peti-

tioner identifies some divergence in statements that the

different courts have made regarding the consequences

when a meeting-attendance rule excludes a high per-

centage of the union membership, this Court “reviews

judgments, not statements in opinions.” Black v.

Cutter Labs., 351 U.S. 292, 297 (1956). Moreover, this

case would not be an appropriate one in which to re-

solve any tension among the courts of appeals regard-

ing whether the “percentage-disqualified factor [is]

dispositive in meeting attendance rule cases” (Pet. 14),

because the court of appeals here ruled in petitioner’s

12

favor on that question. The court of appeals held that

the 92% exclusion rate resulting from petitioner’s rule

did not alone render the rule invalid; rather, the court

concluded that additional factors required the con-

clusion that the rule was unreasonable. Pet. App. 6a-8a.

a. In the 23 years since Steelworkers, three courts of

appeals, other than the court of appeals in this case,

have considered Section 401(e)’s “reasonable qualifica-

tions” standard in relation to meeting-attendance rules.

In two of those cases, the courts held or strongly

intimated that rules requiring attendance at meetings

at least six months before the election were unreason-

able. See Marshall v. Local 1402, Int’l Longshoremen’s

Ass’n, 617 F.2d 96, 97 & n.1 (5th Cir.) (invalidating rule

requiring candidates to have attended at least one bi-

monthly meeting in each of the ten months preceding

election and resulting in exclusion of 93.7% of mem-

bership), cert. denied, 449 U.S. 869 (1980); Doyle v.

Brock, 821 F.2d 778 (D.C. Cir. 1987) (holding that the

Secretary had acted arbitrarily and capriciously in

failing to challenge an election in which the meeting-

attendance rule required attendance at six monthly

meetings in the year preceding the election and ren-

dered 97% of the membership ineligible). In Herman v.

Springfield Massachusetts Area, Local 497, American

Postal Workers Union (Postal Workers), 201 F.3d 1

(2000), the First Circuit upheld a meeting-attendance

rule that required attendance at only three monthly

meetings during the twelve month period preceding the

nominations meeting, even though the rule excluded a

large percentage of the membership.

The judgment of the court of appeals in this case,

which invalidated a rule requiring attendance at eight

monthly meetings during the two years before the

election, fits comfortably within the pattern of the post-

13

Steelworkers decisions. Rules, like the one at issue

here, requiring attendance at six or more monthly

meetings—and thus requiring members to have com-

menced attendance at meetings six or more months

before the election—have been viewed as unreasonable.

Local 1402, supra (ten meetings); Pet. App. 7a (eight

meetings); Doyle, supra (six meeting requirement and

high disqualification rate presented sufficient indicia of

unreasonableness that Secretary must bring suit). On

the other hand, the sole court of appeals decision to

sustain a rule, the First Circuit’s decision in Postal

Workers, addressed a three-meeting rule, which clearly

imposes a lesser (although not insubstantial) burden on

the democratic process. Thus, the results in the four

cases that have been decided since Steelworkers are

fully consistent with one another.

b. Although the reasoning of the four decisions is not

entirely uniform, petitioner exaggerates in asserting

that the courts of appeals have approached the

meeting-attendance question in “three different and

irreconcilable ways.” Pet. 11 (referring to the ap-

proaches of the court of appeals in this case, the First

Circuit in Postal Workers, and the D.C. Circuit in

Doyle).’ Indeed, the court of appeals in this case con-

cluded that the framework it endorsed—under which a

rule’s high rate of exclusion creates a presumption of

unreasonableness but permits a union to demonstrate

the rule’s lack of burdensomeness or the union’s com-

pelling need—is consistent with all of the post-

° Petitioner ignores the Fifth Circuit’s holding in Local 1402,

that the ten-monthly-meeting rule there created a ten-month

“advance-intention” requirement that was unreasonable. That

holding is in substantial accord with the decision in this case that

an eight-month “advance-intention” requirement is unreasonable.

14

Steelworkers appellate authority on meeting-atten-

dance rules. Pet. App. 6a.

There is no basis for petitioner’s contrary contention

that the reasoning of the court of appeals here conflicts

with the decision of the First Circuit in Postal Workers.

The court of appeals here expressly agreed with the

First Circuit that a rule’s high rate of exclusion is not

dispositive of the rule’s validity, and the court distin-

guished the rule at issue here from the three-meeting

rule approved in Postal Workers on the ground that the

Postal Workers rule permitted a prospective candidate

to come into compliance at a time much closer to the

election. Pet. App. 7a-8a. Moreover, as previously ex-

plained (see p. 9 & note 4, supra), petitioner errs in

describing the court of appeals’ opinion in this case as

applying a three-factor test that differs from the

analysis in Postal Workers.®

Petitioner also errs in characterizing the District of

Columbia Circuit as adopting in Doyle an inflexible rule

that a meeting-attendance requirement that excludes a

high percentage of union members from candidacy is

always invalid. Neither the court of appeals in this case

nor the First Circuit in Postal Workers read Doyle as

establishing an absolutely rigid rule. See Pet. App. 6a

(concluding that its decision was consistent with Doyle,

“the most ‘per se’ of the opinions”) (emphasis added);

Postal Workers, 201 F.3d at 4 (stating that “[oJne

§ Petitioner’s assertion (Pet. 19) that it would prevail under the

First Circuit’s approach in Postal Workers is without basis. Postal

Workers distinguished Doyle on the ground that it involved a six-

meeting rule that was more burdensome than the one at issue in

that case. 201 F.3d at 5. Postal Workers, in which the analysis did

not range much beyond its holding rejecting a per se percentage

test, thus gave absolutely no indication that an eight-month

meeting-attendance rule would be approved by that Circuit.

15

circuit court decision [Doyle] does—to some extent—

support the view” that a percentage test is conclusive)

(emphasis added). As those courts correctly recog-

nized, the District of Columbia Circuit permits a

showing of a high rate of exclusion to be rebutted by a

showing of compelling need. See 821 F.2d at 785. In

that respect, the decision in Doyle is consistent with the

analysis applied by the court of appeals in this case.”

Even if there were a divergence in approach on

whether the “percentage-disqualified factor [is] disposi-

tive in meeting attendance rule cases” (Pet. 14),

7 The District of Columbia Circuit and the Seventh Circuit may

diverge on the narrow question whether a union can rebut the in-

ference of unreasonableness that is raised by a high rate of exclu-

sion by showing that the rule at issue is not actually burdensome.

Compare 821 F.2d at 785 (rule must be justified by interests it

advances) with Pet. App. 6a (rule may be justified by showing

either that it is not burdensome or that it is supported by compel-

ling need). Even if there is disagreement on that question, the

standard applied by the court of appeals here is the one more

favorable to petitioner, and the court held that petitioner had not

satisfied it.

Moreover, the question whether there is a conflict in the circuits

on this particular question is complicated by the fact that Doyle did

not resolve whether the union rule at issue was reasonable under

the LMRDA, but only whether the Secretary acted arbitrarily and

capriciously in refusing to bring suit. See 821 F.2d at 783 n.4

(noting that the union, which was not a party to the suit, could

raise other justifications and legal theories to defend the suit on

the merits); id. at 787 (Silberman, J., dissenting) (noting that, had

the Secretary brought suit on the merits, he might have been able

to find common ground with the majority). Thus, if confronted

directly with the reasonableness of a rule in a suit under Section

402(b), the District of Columbia Circuit could resolve that question

differently, particularly in light of the intervening decisions in

Postal Workers and this case, ard decide that a rule with a high

rate of exclusion, but a demonstrated lack of burden, is reasonable.

16

petitioner has not been aggrieved by the court of

appeals’ resolution of that issue. The court decided that

question in petitioner’s favor and held that the fact that

the rule disqualified 92% of the membership was not

dispositive. Pet. App. 6a. It permitted the union to

attempt to show that the rule was justified despite its

impact, either because it did not burden the democratic

process or the burden was justified by countervailing

interests. Jbid. The court, however, ultimately deter-

mined that the rule was burdensome and could not be

justified on the ground advanced by petitioner—

namely, that it was necessary to bolster meeting atten-

dance and participatory democracy. /d. at 7a. Peti-

tioner’s rule is, accordingly, unreasonable whether

judgec by a per se percentage test or by the more

flexible test employed by the court of appeals. There is

therefore no reason to grant review in this case to

consider which of those two approaches is correct.

3. Fetitioner places heavy emphasis (Pet. 3, 5-6, 14,

15-16) on the history of the Department of Labor’s

enforcement of Section 401(e) with respect to meeting-

attendance rules. Although that history reveals that

the Department has altered its approach to meeting-

attendance rules in the face of developments in the case

law, nothing in the history suggests that the court of

appeals committed legal error. Most of petitioner’s

discussion is designed to show that the Department has

taken inconsistent positions with respect to whether a

“multi-factor” or “per se percentage” test applies and to

corroborate petitioner’s position that a multi-factor test

is the appropriate standard.* As we have explained,

é Petitioner errs in relying (Pet. 5, 19) on a 1978 letter from an

Assistart Secretary of Labor to the International opining that a

rule requiring attendance at one-third of the meetings in the 24

4

1

i

¢

17

however, petitioner prevailed on that issue and ob-

tained what was essentially a “multi-factor” analysis

from the court of appeals, which correctly invalidated

petitioner’s meeting-attendance rule. See pp. 11-12,

supra. Moreover, the court invalidated the rule, not

because the court concluded the Secretary’s regulation

required that result, see Pet. App. 5a (rejecting

deference to the Secretary’s regulation), but because

the court concluded that the language and purpose of

the LMRDA and of this Court’s Steelworkers decision

required it.

months preceding the election, with excuse provisions, would “be

reasonable as to the number of meetings required to be attended

and would not be subject to challenge because of the percentage of

the membership which failed to qualify.” Letter from Francis X.

Burkhardt, Assistant Secretary of Labor, to Lloyd McBride &

Lynn R. Williams, United Steelworkers 2 (Sept. 15, 1978).

Petitioner neglects to point out that the Department informed the

International in April 1994, well before the election in this case,

that the Department no longer adhered to the opinion in the 1978

letter. Letter from Edmundo A. Gonzales, Deputy Assistant

Secretary for Labor-Management Standards, to George F. Becker,

International President, United Steelworkers (Apr. 19, 1994). The

government’s change of position does not bear on whether the

court of appeals’ decision in this case is correct because that court

did not accord deference to the Department’s views in holding that

petitioner’s meeting-attendance rule is unreasonable. Pet. App. 5a.

18

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

SETH P. WAXMAN

Solicitor General

HENRY L. SOLANO

Solicitor of Labor

NATHANIEL I. SPILLER

Deputy Associate Solicitor

MARKS. FLYNN

Attorney

Department of Labor

OCTOBER 2000