```

[Federal Register Volume 60, Number 95 (Wednesday, May 17, 1995)]
[Proposed Rules]
[Pages 26388-26392]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-12137]

=======================================================================
-----------------------------------------------------------------------

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.

-----------------------------------------------------------------------

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]
BILLING CODE 4510-86-M
```