In response, the Secretary relies primarily on the narrow Bachowski standard of review and contends that the statements of reasons adequately explain the final decision not to file suit and that the decision was rational under the circumstances. The Court must, therefore, consider the law applicable to Doyle's challenges and determine whether the Secretary's statements are indeed a rational response to them.
Doyle's first argument turns essentially on a single question: Can the meeting attendance requirement, when viewed together with the "liberal" excuse provision, be a "reasonable qualification" for union office under section 401(e) of the LMRDA, when it has the effect of excluding 97 percent of the members from pursuing a candidacy? If the answer to this question is "no," then the decision not to file suit was arbitrary and irrational. If the answer is "yes," then the statements of reasons must provide a cogent explanation for that answer.
As the Supreme Court and the courts of appeals have often stated, the "reasonable qualifications" language of the Act is not to be given broad reach. See, e.g., Local 3489, United Steelworkers of America v. Usery, 429 U.S. 305, 309, 50 L. Ed. 2d 502, 97 S. Ct. 611 (1977) (quoting Wirtz v. Hotel, Motel & Club Employees Union, Local 6, 391 U.S. 492, 499, 20 L. Ed. 2d 763, 88 S. Ct. 1743 (1968)); Donovan v. Local Union No. 120, Laborers' Int'l Union of North America, 683 F.2d 1095, 1102 (7th Cir. 1982). This is because Title IV of the Act was intended to guarantee free and democratic union elections, modeled on our national political elections. The prevention of corruption and abuses of union power by the leadership, the overriding purpose of the Act, is best accomplished through such free elections. Steelworkers, 429 U.S. at 309-10. The reasonableness of any qualification for candidacy must be measured against the legislative purposes of the LMRDA. Local Union No. 120, 683 F.2d at 1102.
Meeting attendance requirements, such as contained here in the Local 6 bylaw, are frequently imposed as a qualification for elective office. The usual purported justification for such requirements is that they ensure that candidates will be properly informed on issues of importance to union governance. However, in Steelworkers this justification was specifically questioned: "The election provisions of the LMRDA express a congressional determination that the best means to this end is to leave the choice of leaders to the membership in open democratic elections, unfettered by arbitrary exclusions." 429 U.S. at 312. See also Donovan v. Sailors' Union of the Pacific, 739 F.2d 1426, 1429-30 (9th Cir. 1984), cert. denied, 471 U.S. 1004, 105 S. Ct. 1866, 85 L. Ed. 2d 160 (1985), ("[Congress intended] that the good judgment of union members in casting their votes should be the primary determinant of whether a candidate is qualified for office."). When meeting attendance rules disqualify a large portion of the membership from running for office, it is particularly difficult to find that they are consistent with the goal of free and democratic elections. In such cases, the requirements have failed to encourage attendance, the supposed reason for their existence, and they arbitrarily and severely "restrict the free choice of the membership in selecting its leaders." Id. at 310. Courts have consistently struck down not only meeting attendance requirements, but also other election bylaws that exclude the major portion union's membership. Donovan v. Illinois Education Ass'n, 667 F.2d 638, 641 (7th Cir. 1982) ("We have found no recent decision upholding a candidacy qualification that excluded a majority of the union's membership, however reasonable the qualification may have seemed.").
The Secretary's investigation of the challenged bylaw revealed that only 3 percent of the membership was eligible for nomination. Even though the area administrator for the DOL's San Francisco office recommended that this fact alone justified filing suit,
the Secretary's Statement of Reasons doesn't mention it at all. The Statement simply says: "The local's meeting attendance rule is reasonable on its face, particularly in view of the liberality of the excuse provisions." Statement at 2. Doyle's counsel noted the obvious inadequacy of this comment in his letter requesting reconsideration. In response, the Hunsucker letter states: "If the Department concluded that the rule is reasonable, it will not initiate litigation solely because the rule's effect is to disqualify a vast percentage of the membership from running for union office." Hunsucker letter at 1.
Absent from the response is a precise explanation of how the DOL concluded that the rule was reasonable under applicable case law, especially given the following language from Steelworkers : "An attendance requirement that results in the exclusion of 96.5 percent of the members from the candidacy for union office hardly seems to be a 'reasonable qualification' consistent with the goal of free and democratic elections." Steelworkers, 429 U.S. at 310. The only indications of the Secretary's reasoning come from the brief mention in the original Statement of the liberal excuse provision of article III, section 9(g) of the bylaws, and the reference in the Hunsucker letter to DOL regulations stating that the reasonableness of a meeting attendance requirement is determined through a consideration of all of the circumstances of a particular case. See 29 C.F.R. § 452.38 (1985). It appears, therefore, that the Secretary decided the qualification in this case was reasonable because of the excuse provision.
It is true that the "nature, availability and extent of excuse provisions" is mentioned in the regulations as a factor that will influence the Secretary's view of a meeting attendance requirement. Id. The courts, however, have never accepted the argument that liberal excuse provisions can save requirements that exclude the greater part of a union's membership. In Marshall v. Local 1402, International Longshoremen's Ass'n of Tampa, Florida, 617 F.2d 96 (5th Cir. 1980), for example, a union argued that a meeting attendance bylaw that resulted in the disqualification of nearly 94 percent of its membership was nonetheless reasonable because to get credit for attendance, a member need only call the union office in advance of the meeting. Rather than distinguishing the case from Steelworkers, the court held, the liberal excuse provision undermined the only possible legitimate purpose asserted on behalf of the bylaw. If a member can get credit for attendance so easily, the bylaw can scarcely be said to encourage meeting attendance and therefore a familiarity with union affairs. 617 F.2d at 98; see also Usery v. Local Division 1205, Amalgamated Transit Union, 545 F.2d 1300, 1304 n.3 (1st Cir. 1976).
When presented with this argument in the plaintiff's reconsideration request, the Secretary responded not by relying on contrary legal authority, but rather by citing cases from a summary sheet of DOL investigations of other complaints, some of which involved meeting attendance requirements that excluded the vast majority of union members. The summaries indicate that many of these investigations were terminated without the filing of a lawsuit because of liberal excuse provisions. Simply because the Secretary was following his own "precedent," however, does not make his decision rational. Indeed, there is no indication that decisions not to file suit on the basis of these other complaints were challenged in, much less upheld by, the courts.
The simple fact is that even though the liberal excuse provision in this case may have been intended to ensure broad eligibility for union office, it failed to do so. Even with the provision, of which the members were supposedly aware, 97 percent of the membership was ineligible to run for office. Given that every recorded court decision in cases involving the exclusion of that high a percentage of members points in only one direction, and that the statement of reasons offer no rational explanation for why this case is any different, the Secretary's decision not to move to overturn the election can only be viewed as so irrational as to be arbitrary and capricious.
The second group of arguments presented by the plaintiff concern the decision of Local 6 to determine presence at meetings only by reference to written attendance rosters and the application of the excuse provision to the rank and file members as opposed to officers. In view of the resolution of the more general challenge to the meeting attendance requirement, a detailed analysis of these more specific claims is unnecessary. Indeed, this Court believes the first of these specific challenges is more than sufficient to find the statements of reasons arbitrary and capricious.
Article III, § 9(f) of the bylaws requires that potential candidates "attend" at least one half of the regular Union meetings in the twelve month period preceding nominations. In ruling that Doyle was an ineligible candidate based on this bylaw, Local 6 relied solely on the attendance rosters made available for members to sign during the meetings.
The regulations promulgated concerning "reasonable qualifications" for union office under 29 U.S.C. § 481, provide in part:
An essential element of reasonableness is adequate advance notice to the membership of the precise terms of the requirement. A qualification which is not part of the constitution and bylaws or other duly enacted rules . . . may not be the basis for denial of the right to run for office . . . . [Qualifications] must contain specific standards of eligibility by which any member can determine in advance whether or not he is qualified to be a candidate.
29 C.F.R. § 452.53 (1985) (emphasis added). The specific requirement that notice must be given to the membership through publication in the bylaws or other duly enacted rules is consistent with the admonition in Steelworkers that the purposes of the LMRDA transcend the interests of an individual union member. See 429 U.S. at 309. Thus, the necessity of general advance notice of a requirement is not alleviated by a particular individual having notice.
The Secretary's Statement barely mentions the decision of the Union to rely only on the sign-in registers. It provides only:
The local did not violate its own constitution and bylaws or the Act by relying on its records, rather than recollections of members about who attended meetings. As the complainant had signed the meeting attendance roster on two occasions he was aware of the need to sign in at meetings he attends.