Eligibility Requirements for Candidacy for Union Office

DEPARTMENT OF LABOR

Office of Labor-Management Standards

29 CFR Part 452

RIN 1294-AA09

Eligibility Requirements for Candidacy for Union Office

agency: Office of Labor-Management Standards, Labor.

action: Proposed rule.

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summary: The Office of Labor-Management Standards proposes to amend its

interpretative regulations on labor organization officer elections. The

proposed amendment will add a reference to a ruling by the Court of

Appeals for the District of Columbia Circuit regarding the

reasonableness of meeting attendance requirements set by labor

organizations for eligibility for union office. This amendment will

inform the public of a court decision that guides the Office in its

enforcement actions.

Dates: Interested parties may submitted comments on or before July 17,

1995.

addresses: Written comments should be submitted to Edmundo A. Gonzales,

Deputy Assistant Secretary for Labor-Management Standards, Office of

the American Workplace, U.S. Department of Labor, 200 Constitution

Avenue, NW., Room S-2203, Washington, DC 20210.

for further information contact: Kay H. Oshel, Chief, Division of

Interpretations and Standards, Office of Labor-Management Standards,

Office of the American Workplace, U.S. Department of Labor, 200

Constitution Avenue, NW., Room N-5605, Washington, DC 20210, (202) 219-

7373. This is not a toll-free number.

SUPPLEMENTARY INFORMATION:

I. Background and Overview

Title IV of the Labor-Management Reporting and Disclosure Act of

1959, as amended (LMRDA) sets forth standards and requirements for the

election of labor organization officers. Section 401(e) of title IV, 29

U.S.C. Sec. 481(e), provides in part that every member in good standing

has the right to be a candidate subject ``to reasonable qualifications

uniformly imposed.''

In connection with the Department's enforcement responsibilities

under LMRDA title IV, interpretative regulations have been promulgated,

29 CFR part 452, in order to provide the public with information as to

the Secretary's ``construction of the law which will guide him in

performing his [enforcement] duties.'' 29 CFR 452.1. Several provisions

in the interpretative regulations discuss union-imposed qualifications

on candidacy eligibility. One of these provisions, 29 CFR 452.38, deals

specifically with meeting attendance requirements and lists several

factors to consider in determining whether, under ``all the

circumstances,'' a particular meeting attendance requirement is

reasonable.

On June 15, 1994, OLMS published an advance notice of proposed

rulemaking (ANPRM) requesting comments from the public on the possible

need to modify the interpretative regulations on meeting attendance

requirements in order to incorporate a ruling of the United States

Court of Appeals for the District of Columbia Circuit in Doyle v.

Brock, 821 F.2d 778 (D.C. Cir. 1987). In Doyle, the Secretary's

decision not to bring enforcement action under LMRDA title IV was

reviewed by the courts pursuant to Dunlop v. Bachowski, 421 U.S. 560

(1975). (In Bachowski, the Supreme Court held that judicial review of

the Secretary's decision not to bring litigation in LMRDA title IV

cases is available under the Administrative Procedure Act.) The

Secretary had decided not to bring civil action on a member's complaint

about his union's meeting attendance requirement, even though the

requirement disqualified 97% of the members. The Secretary's position,

after reviewing the factors set forth in 29 CFR 452.38, was that since

[[Page 26389]] the requirement was not on its face unreasonable (i.e.,

it did not require a member to decide to become a candidate an

excessively long period before the election) and it was not difficult

to meet (i.e., the meetings were held at convenient times and locations

and the union provided liberal excuse provisions), the large impact of

the requirement was not by itself sufficient to render it unreasonable.

The district court held that the Secretary's decision not to bring

litigation against the union was arbitrary and capricious, Doyle v.

Brock, 641 F. Supp. 223 and 632 F. Supp. 256 (D.D.C. 1986). The court

of appeals affirmed, rejecting the Secretary's position summarized

above. The court emphasized the importance of the impact of the meeting

attendance requirement in disqualifying 97% of the membership as a

sufficient factor in determining the requirement to be unreasonable:

There is no basis, in [the Supreme Court's decision in

Steelworkers, Local 3489 v. Usery, 429 U.S. 305 (1977)] or in any

other case, for the notion that an attendance requirement that has a

large antidemocratic effect can be reasonable on its face, and that

some additional factor is necessary to find the requirement

violative of the LMRDA.

821 F.2d 778, 785.

The ANPRM suggested three options for modifying the interpretative

regulations. The first suggested option was to delete the current

language in 29 CFR 452.38(a) and replace it with the statement that all

meeting attendance requirements are per se unreasonable. The second

suggested option was to retain the current language in 29 CFR 452.38(a)

stating that the reasonableness of a meeting attendance requirement is

determined by reviewing a number of factors on a case-by-case basis,

but add language to the effect that there is an inverse relationship

between the impact of the requirement and the probability that it will

be considered reasonable. The third suggested option, a combination of

the first two, was to retain the current case-by-case language of 29

CFR 452.38, but add a statement that once the impact reaches a certain

point (such as 50%, 75% or 90%) the meeting attendance requirement will

be considered to be unreasonable per se.

II. Comments on the ANPRM

OLMS received sixteen (16) comments pursuant to the ANPRM on the

meeting attendance regulation. Fourteen (14) comments were received

from the following labor organizations, which generally opposed

restrictions on meeting attendance requirements:

--International Organization of Masters, Mates & Pilots

--Association of Western Pulp and Paperworkers

--United Cereal, Bakery and Food Workers, No. 374

--International Association of Fire Fighters

--Glass, Molders, Pottery, Plastics & Allied Workers International

Union

--American Federation of Grain Millers

--International Guards Union of America

--Graphic Communications International Union

--Amalgamated Transit Union

--Oil, Chemical & Atomic Workers International Union

--Amalgamated Clothing and Textile Workers Union

--International Brotherhood of Painters & Allied Trades

--The American Federation of Labor and Congress of Industrial

Organization (joined by the United Steelworkers of America and the

International Association of Machinists and Aerospace Workers)

--International Brotherhood of Boilermakers, Iron Ship Builders,

Blacksmiths, Forgers & Helpers

The other two comments, which opposed meeting attendance

requirements and supported the option of holding that they are per se

unreasonable, were received from the following:

--The Association for Union Democracy

--Acuna, Casas & Araiza (a law firm)

The points that were most frequently made in the comments submitted

by labor organizations are as follows.

--A substantial number of union constitutions continue to have meeting

attendance requirements, either because the parent national or

international union requires one or the parent allows subordinate

locals to choose to impose one.

--Although a large majority of union members do not attend meetings, it

is not possible to make generalizations on the portion of membership

disqualified by meeting attendance requirements. One comment stated

that determining who is ineligible because of a meeting attendance

requirement in a particular case is difficult because of the

availability of excuse provisions and the need to review meeting sign-

in sheets and records of excuse requests.

--The primary purpose of meeting attendance requirements is to ensure

that candidates are knowledgeable about the duties of the positions

they seek and that they are committed to the union and serving its

members; the labor organizations stated that they and their members

feel very strongly that this is a valid purpose. Meeting attendance

requirements have served this purpose well (but the labor organizations

presented no facts to support this belief).

--It is not appropriate to judge the reasonableness of a candidacy

qualification by the number of member who choose not to attempt to meet

it. The reasonableness of a rule should be determined primarily by how

difficult the qualification is to meet.

--Doyle is not persuasive and should not be followed in the other

circuits.

--No court has held meeting attendance requirements to be per se

unreasonable, and there is no legal basis for the Department to make

them per se unreasonable.

--If any change is made to the regulations, that change should state

that a meeting attendance requirement is presumptively reasonable as

long as the requirement is flexible (e.g., liberal excuse provisions

are available) and/or the union takes other action to encourage

attendance (e.g., meetings held at different times, extensive notice of

meetings, etc.).

In addition, one of the labor organization comments cited several

Supreme Court and lower court decisions to support the proposition that

although ``Congress' model of democratic elections was public elections

in this country,'' Wirtz v. Hotel, Motel and Club Employees Union,

Local 6, 391 U.S. 492 (1968), the Doyle court's standard for judging

union candidacy qualifications was far more demanding than the

standards which courts have used for judging state election rules (and

therefore, presumably, the Doyle standard would not survive a challenge

to the Supreme Court). The most recent of the Supreme Court cases,

Munro v. Socialist Workers Party, 479 U.S. 189, 107 S. Ct. 533 (1986),

involved a challenge to a Washington state law which required a

minority party candidate to run in the state's open primary and receive

at least 1% of all votes cast for that office in order to be a

candidate in the general election. The Court upheld this candidacy

restriction, even though such restrictions ``impinge'' upon the First

and Fourteenth Amendment rights of candidates and voters, because those

rights ``are not absolute and are necessarily subject to qualification

if elections are to be run fairly and effectively.''Id., at 193.

The state interests generally cited to justify the impingement on

[[Page 26390]] constitutional rights are ensuring that candidates have

a ``modicum of support,'' Id., at 193, avoiding voter confusion, and

eliminating frivolous candidates. The Court has held that states are

not required to show that the restriction is actually needed to serve

valid state interests. In Munro, the Court accepted the determination

of the Court of Appeals (which has found the restriction

unconstitutional) that, as a ``historical fact,'' there was no evidence

of voter confusion from ballot overcrowding, but went on to state that

[W]e have never required a State to make a particularized

showing of the existence of voter confusion, ballot overcrowding, or

the presence of frivolous candidates prior to the imposition of

reasonable restrictions on ballot access * * *. Id., at 194-5.

Legislatures, we think, should be permitted to respond to

potential deficiencies in the electoral process with foresight

rather than reactively * * * Id., at 195.

For the Court, it was sufficient that the restriction on candidacy

in the general election was based on the state's ``perception'' of

harmful developments requiring that restriction. Id., at 196.

The two commenters who opposed meeting attendance requirements

stated generally that

--they disqualify too many members, discriminate in favor of

incumbents, are difficult to administer, and serve no useful purpose,

--their alleged purpose, of ensuring knowledgeable and committed

candidates, is undermined rather than supported by the availability of

liberal excuse provisions,

--only a minority of unions have them, and

--members should make the decision in the election as to whether a

person is qualified.

One of the comments which supported a per se ruling against meeting

attendance requirements made a number of additional points. First, in

support of the position that most meeting attendance requirements have

been held to violate the LMRDA, this commenter stated that its review

of court and administrative decisions on title IV cases disclosed only

one court decision and a handful of administrative decisions which

upheld the application of a meeting attendance requirement after

Steelworkers Local 3489.

Second, this commenter argued that the Supreme Court's approval of

the Department's case-by-case approach under 29 CFR 452.38 in

Steelworkers Local 3489 does not prohibit the Department ``from

adopting a less flexible ban on all meeting attendance requirements.''

It stated that in other areas of law the courts ``have not hesitated to

make the transition from a test based on all the circumstances to the

adoption of per se rules.'' In particular, the commenter cited a

Supreme Court decision involving anti-trust laws, Northwest Stationers

v. Pacific Stationery, 472 U.S. 284 (1985), which rejected the ``rule

of reason'' approach and held that certain business arrangements were

per se illegal because experience has shown that they ``always or

almost always'' tend to restrict competition. This commenter also cited

a handbook of tort law to support its position that courts have held

that certain actions in violation of statutes or ordinances are per se

unreasonable.

Third, this commenter stated that several of the Department's

regulations already contain per se rulings on eligibility requirements.

It cited the following regulations which set forth per se prohibitions:

prior office holding (29 CFR 458.40), membership in a particular branch

(29 CFR 458.42), discrimination on the basis of personal

characteristics such as race, religion, sex, and national origin which

violates Federal law (29 CFR 458.46), and declaration of candidacy

months prior to the election (29 CFR 458.51). It also cited several

regulations which hold that certain candidacy qualifications are per se

reasonable: ineligibility of full-time non-elective employees (29 CFR

458.48), term limits (29 CFR 458.49), and two years prior membership

(29 CFR 458.37).

Finally, an article cited in these comments, that was written by

the author of these comments, refers to several sources which support

the proposition that attendance at union meetings is and always has

been low. One of these is a statement by Senator Hubert Humphrey in

discussions on bills which lead to the LMRDA. Senator Humphrey's exact

statement, made in the context of emphasizing the importance of

members' attending union meetings, was that ``[i]f only 10 percent of

union members attend meetings--and that is a good average--we can

expect abuse of power.'' 105 Cong. Rec. 17,918.

This commenter concluded by arguing that it is important to

completely prohibit meeting attendance requirements because any action

short of this will encourage unions to retain those requirements and

discourage members who have not met the requirements from running for

office, even though most such requirements would not survive challenge.

This commenter also noted that some judges have upheld an eligibility

requirement because it disqualified only 10% or 25% of members, even

though its justification was otherwise questionable; continuing the

current case-by-case approach might encourage the case law to develop

in this direction, a tendency which should be ``resisted.''

III. Discussion

After reviewing the comments on the ANPRM and the pertinent court

decisions in view of these comments, the Department has decided to

propose a modification of the interpretative regulations at 29 CFR

452.38 in order to cite Doyle and refer to its essential ruling. The

Department has concluded the Doyle is an important decision ``which

will guide [the Secretary] in performing his duties,'' 29 CFR 452.1,

and it is therefore appropriate to include it in the interpretative

regulations, but that there is an insufficient basis at this time to

take further action such as holding that meeting attendance

requirements are per se unreasonable.

The proposal to cite Doyle and refer to its essential ruling is

contrary to the recommendations of both the labor organization

commenters and those commenters who supported a per se ruling against

meeting attendance requirements. Several labor organizations stated in

their comments that they disagreed with Doyle and recommended that

Doyle not be followed in other circuits. However, this recommendation

is not feasible. Since Doyle was decided in the District of Columbia

Circuit, where the Secretary is located, and since the Supreme Court's

decision in Dunlop v. Bachowski held that any member may bring

litigation against the Secretary for judicial review of his decision

not to take enforcement action, a decision by the Secretary not to

follow Doyle in another circuit would be susceptible to successful

legal challenge in the D.C. Circuit.

In addition, several labor organizations recommended that the

Department create a ``safe harbor'' whereby a meeting attendance

requirement would be presumed to be reasonable if, for example,

meetings are not difficult to attend, the union makes significant

efforts to encourage attendance, and there are liberal excuse

provisions. However, many of these factors were considered and rejected

in Doyle as well as in Steelworkers Local 3489, and the establishment

of a presumptively ``safe harbor'' is therefore not possible.

The proposal to cite Doyle is also contrary to the recommendations

made in the other two comments to prohibit meeting attendance

requirements per se. The Department has concluded that such recommended

action, at a [[Page 26391]] minimum, raises serious legal questions. As

the labor organizations comments noted, the LMRDA expressly allows

unions to impose ``reasonable qualifications uniformly imposed'' on

candidacy eligibility, Congress did not discuss any abuses stemming

from meeting attendance requirements even though many unions had such

requirements at the time the LMRDA was enacted and attendance was

undoubtedly very low at that time as well, and no court has actually

held meeting attendance requirements to be per se unreasonable, not

even the Doyle court.

The arguments presented in the comments in support of the legal

validity of adopting a per se rule do not overcome these difficulties.

In particular, the Department does not feel that the Supreme Court

decision involving anti-trust laws, which reflected the ``rule of

reason'' approach and held that certain business arrangements were per

se illegal because the experience shows that they ``always or almost

always'' tend to restrict competition, is persuasive here. Unlike the

statutes discussed in that Court decision (Sec. 1 of the Sherman Act,

15 U.S.C. Sec. 1, and section 4 of the Robinson-Patman Act, 15 U.S.C.

Sec. 13(b)), LMRDA section 401(e) expressly allows unions to adopt

reasonable rules limiting candidacy. Moreover, as stated above, the

fact that attendance at union meetings is low was acknowledged during

Congressional deliberations, so that the Department's ``experience'' in

implementing the LMRDA is not different from the facts known by

Congress when it enacted the LMRDA.

In addition, the four kinds of eligibility requirements referred to

one of the commenters which are prohibited per se in the Department's

regulations can be readily distinguished from meeting attendance

requirements. ``Prior office holding'' by its very terms makes it

impossible for every member to be a candidate and was expressly found

to be unreasonable by the Supreme Court in Wirtz v. Hotel, Motel and

Club Employees Union, Local 6, 391 U.S. 492 (1968). ``Discrimination on

the basis of certain personal characteristics'' also by its very terms

makes it impossible for every member to be a candidate and is illegal

under other Federal law. ``Membership in a particular union branch''

also by its very terms makes it impossible for every member to be a

candidate. ``Declaration of candidacy'' restricts the right of members

to nominate candidates and has been held by the courts to serve no

arguable purpose.

The Department recognizes that many of the statements made by the

commenters who supported a per se prohibition on meeting attendance

requirements may well be valid. For those cases of which the Department

has knowledge through its investigation of a complaint, meeting

attendance requirements have most often disqualified the overwhelming

majority of members and the requirements have most often been found to

be unreasonable. The justifications for meeting attendance requirements

have most often been seriously questioned by the courts. Meeting

attendance requirements are difficult and burdensome to administer

equitably and uniformly, especially with regard to excuse provisions,

and they lead to uncertainty and costly litigation for all concerned.

These are all considerations which labor organizations should be aware

of if they choose to have meeting attendance requirements, in addition

to the fact that the Department under Doyle will take enforcement

action whenever a meeting attendance requirement disqualifies a large

portion of a union's membership from candidacy.

Nevertheless, the LMRDA recognizes that labor organizations have

the right to establish reasonable candidacy qualifications, and the

Department has concluded that there is not a sufficient basis at this

time for holding this one type of candidacy qualification to be per se

unreasonable. It is therefore not appropriate or necessary under the

present case law to replace the case-by-case approach, set forth in 29

CFR 452.38 and cited approvingly by the Supreme Court in Steelworkers

Local 3489, for determining whether a meeting attendance requirement is

reasonable.

IV. The Proposed Revision

As stated above, the Department proposes to revise the interpretive

regulations to cite Doyle and refer to its essential ruling. Under this

proposal, the text of Sec. 452.38 would remain, but the text of

footnote 25 would be replaced with the following:

\25\If a meeting attendance requirement disqualifies a large

portion of members from candidacy, that large antidemocratic effect

alone may be sufficient to render the requirement unreasonable. In

Doyle v. Brock, 821 F.2d 778 (D.C. Circuit 1987), the court held

that the impact of a meeting attendance requirement which

disqualified 97% of the union's membership from candidacy was by

itself sufficient to make the requirement unreasonable

notwithstanding any of the other factors set forth in 29 CFR

452.38(a).

The current text of footnote 25, which would be eliminated under

this proposal, refers to the holding of the Supreme Court in Wirtz v.

Hotel, Motel and Club Employees Union, Local 6, 391 U.S. 492, at 502,

as support for the importance of impact in determining whether a

meeting attendance requirement is reasonable. However, the Doyle

decision is a more appropriate citation for this point because in this

case, unlike Local 6, the meeting attendance requirement was found

unreasonable solely on the basis of its impact; in contrast, Local 6

involved the issue for prior office holding, which is covered in 29 CFR

452.40 and footnote 26, which summarizes Local 6. In addition, even if

the current text of footnote 25 is replaced, there will continue to be

references to Local 6 in footnote 26 and the text of 452.36(a).

V. Administrative Notices

A. Executive Order 12866

The Department of Labor has determined that this proposed rule is

not a significant regulatory action as defined in section 3(f) of

Executive Order 12866 in that it will not (1) Have an annual effect on

the economy of $100 million or more, or adversely affect in a material

way the economy, a sector of the economy, productivity, competition,

jobs, the environment, public health or safety, or State, local, or

tribal governments or communities, (2) create a serious inconsistency

or otherwise interfere with an action taken or planned by another

agency, (3) materially alter the budgetary impact of entitlements,

grants, user fees, or loan programs or the rights and obligations of

recipients thereof, or (4) raise novel legal or policy issues arising

out of legal mandates, the President's priorities, or the principles

set forth in Executive Order 12866.

B. Regulatory Flexibility Act

The Agency Head has certified that this proposed rule will not have

a significant impact on a substantial number of small entities as

defined in the Regulatory Flexibility Act. Any regulatory revision will

only apply to labor organizations, and the Department has determined

that labor organizations regulated pursuant to the statutory authority

granted under the LMRDA do not constitute small entities. Therefore, a

regulatory flexibility analysis is not required.

C. Paperwork Reduction Act

This proposed rule contains no information collection requirements

for [[Page 26392]] purposes of the Paperwork Reduction Act of 1980 (44

U.S.C. 3501 et seq.).

List of Subjects Affected in 29 CFR Part 452

Labor unions.

Text of Proposed Rule

In consideration of the foregoing, the Department of Labor proposes

that part 452 of title 29, Code of Federal Regulations, be amended as

follows:

PART 452--GENERAL STATEMENT CONCERNING THE ELECTION PROVISIONS OF

THE LABOR-MANAGEMENT REPORTING AND DISCLOSURE ACT OF 1959

The authority citation for Part 452 continues to read as follows:

Authority: Secs. 401, 402, 73 Stat. 532, 534 (29 U.S.C. 481,

482); Secretary's Order No. 2-93 (58 FR 42578).

2. Footnote 25 cited at the end of section 452.38(a) is revised to

read as follows:

Sec. 452.38 Meeting attendance requirements.

* * * * *

25If a meeting attendance requirement disqualifies a large

portion of members from candidacy, that large antidemocratic effect

alone may be sufficient to render the requirement unreasonable. In

Doyle v. Brock, 821 F.2d 778 (D.C. Circuit 1987), the court held

that the impact of a meeting attendance requirement which

disqualified 97% of the union's membership from candidacy was by

itself sufficient to make the requirement unreasonable

notwithstanding any of the other factors set forth in 29 CFR

452.38(a).

Signed in Washington, DC this 11th day of May 1995.

Charles L. Smith,

Special Assistant to the Deputy Secretary.

[FR Doc. 95-12137 Filed 5-16-95; 8:45 am]

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