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March 4, 1986

THOMAS DOYLE, Plaintiff,

The opinion of the court was delivered by: PARKER



 Section 402(b) of the Labor-Management Reporting and Disclosure Act ("LMRDA" or "Act"), 29 U.S.C. § 482(b) (1982), gives the Secretary of Labor authority to file civil actions challenging union elections already conducted "if he finds probable cause to believe that a violation of [the Act] has occurred and has not been remedied." Section 403 makes that authority exclusive. 29 U.S.C. § 483.

 Plaintiff Thomas Doyle protests the Secretary's decision not to challenge and seek to overturn a June 1984 election held by Local 6 of the International Brotherhood of Electrical Workers ("Local 6"). Doyle seeks relief from this Court directing the Secretary either to commence a civil action on his behalf against the union or to provide a more satisfactory Statement of Reasons for his decision not to do so. Before the Court are the parties' cross-motions for summary judgment.

 After considering the legal memoranda and the supporting documentation submitted by counsel, and for the reasons set out below, the Court determines that the plaintiff is entitled to summary judgment.


 In May of 1984, plaintiff Doyle was nominated as a candidate for the Executive Board of Local 6. However, he was ruled ineligible as a candidate because of a bylaw provision that a nominee must attend at least one-half of the regular meetings held in the year preceding the nominations. *fn1" It was determined from an attendance register that Doyle had attended only two meetings in the preceding year and thus was ineligible. Alleging that he had actually attended more than the required number of meetings, even though he had not signed the register, Doyle first pursued internal union remedies. He then filed a complaint with the Secretary of Labor.

 After an investigation, the Secretary declined to file suit on Doyle's behalf, announcing his decision in a Statement of Reasons issued in December 1984. Doyle's counsel then requested the Secretary to reconsider his decision. On February 15, 1985, Richard Hunsucker, Director, Office of Elections, Trusteeships and International Union Audits of the Department of Labor ("DOL"), responded to and denied the request on behalf of the Secretary ("Hunsucker letter"). This lawsuit, filed on February 20, 1985, was a response to the Secretary's decision.


 I. The Standard of Review

 Unlike many agency decisions relating to enforcement or prosecutorial action, the Secretary of Labor's decision whether to file suit under section 402 of the LMRDA is not immune from judicial review. See Heckler v. Chaney, 470 U.S. 821, 105 S. Ct. 1649, 1657, 84 L. Ed. 2d 714 (1985). In Dunlop v. Bachowski, 421 U.S. 560, 44 L. Ed. 2d 377, 95 S. Ct. 1851 (1975), the Supreme Court held that the Secretary's disposition of a union member's complaint should be reviewed under the "arbitrary and capricious" standard of section 706(2)(A) of the Administrative Procedure Act ("APA"), 5 U.S.C. § 706(2)(A). The majority found, however, that while the intent of the LMRDA was not to preclude altogether judicial review of the Secretary's action, a court cannot simply substitute its judgment for the Secretary's. The Secretary is required only to provide a concise "statement of reasons" supporting his decision not to file suit such that a reviewing court can determine if there is a rational and defensible basis for the decision. "The court's review should be confined to examination of the 'reasons' statement, and the determination whether the statement, without more, evinces that the Secretary's decision is so irrational as to constitute the decision arbitrary and capricious." 421 U.S. at 572-73. Accordingly, a trial-type hearing on challenges to the factual bases of the Secretary's decision is not permitted. But the statement of reasons must be sufficient "to enable a court to determine whether the Secretary's decision was reached for an impermissible reason or no reason at all." Id. at 573; Accord Donovan v. Local 6, Washington Teachers' Union, 241 U.S. App. D.C. 274, 747 F.2d 711, 715 (D.C. Cir. 1984).

 Before turning to the merits of Doyle's challenge under this standard, it is appropriate to consider what might be termed an evidentiary dispute. The Secretary argues that the standard of review outlined in Bachowski, characterized by our Circuit Court as "much narrower than applies under [§ 706(2)(A) of the APA]," Usery v. Local Union No. 639, International Brotherhood of Teamsters, 177 U.S. App. D.C. 222, 543 F.2d 369, 378 (D.C. Cir. 1976), cert. denied, 429 U.S. 1123, 51 L. Ed. 2d 573, 97 S. Ct. 1159 (1977), precludes the trial court from considering the findings and recommendations of the Secretary's investigators. *fn2" This interpretation stretches the cautionary language of Bachowski too far.

  Bachowski requires the trial court to scrutinize the reasons for the Secretary's decision but prohibits the challenge of factual findings that led to that decision. In this way, it provides a narrower task than in many administrative cases where factual findings may be overturned if not supported by substantial evidence. See 5 U.S.C. § 706(2)(E). Bachowski does not, however, limit the materials that a court may consider in reaching its determination, at least to the extent suggested by the government. For example, in a recent ruling -- Donovan v. Local 6, supra, our Circuit Court reviewed under the Bachowski standard the Secretary's decision to certify a union election as valid. An unsuccessful candidate claimed that insurgent candidates had been prevented from distributing campaign literature and gathered "numerous affidavits" recounting specific examples of such incidents. The Circuit Court found insufficient the Secretary's statement of the reasons for his decision to certify the election in spite of these incidents. It held that the Secretary had not offered a satisfactory explanation for his decision not to credit the affidavits. Thus, the statement of reasons was evaluated not in a vacuum but in light of the evidence available to the Secretary and the court. See Donovan v. Local 6, 747 F.2d at 718-19.

 A similar situation is presented here. The investigative findings of the DOL were available to and utilized by the Secretary when he decided against pursuing Doyle's complaint. It is proper for this Court to consider them in determining the sufficiency of the reasons advanced in support of the decision. They will help determine whether the statement of reasons is internally consistent and rational. See Balanoff v. Donovan, 549 F. Supp. 102, 107 & n.10 (N.D. Ill. 1982).

 II. The Merits

 Doyle challenges the Secretary's two statements of reasons *fn3" explaining the decision not to file suit on a number of grounds. First, noting that the meeting attendance bylaw which prohibited his candidacy excludes 97 percent of the membership from nomination, he argues that the statements fail to explain rationally the refusal to file suit since a bylaw having such an effect is not a reasonable qualification for union office and is therefore unlawful under section 401(e) of the LMRDA, 29 U.S.C. § 481(e). *fn4" Furthermore, the statements do not, and cannot, under current case law, identify a legitimate purpose of the bylaw that outweighs its anti-democratic effect.

 Doyle next argues that the Secretary failed to explain adequately his decision allowing the union to base the disqualification solely on the attendance roster. He claims that Local 6 was required under the Secretary's own regulations to expressly state in its bylaws the means of determining candidate eligibility, and that the statements do not adequately explain the Secretary's conclusion that he could not carry the burden of proof on the question of whether Doyle actually attended enough meetings to qualify for nomination. Finally, Doyle criticizes the Secretary's cursory attention in the Department's statements to the discriminatory application of the sign-in requirement and excuse provisions to rank and file members as opposed to Local 6 officers. *fn5"

  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."). *fn6"

  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, *fn7" 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. *fn8"


 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.

 Statement at 2. Whether the Union violated its own bylaws is not the issue raised by the reliance on its written records only; the issue is whether such reliance violated the "reasonable qualifications" language of the LMRDA as interpreted by the DOL's regulations. Doyle's personal awareness of the requirement has no relevance to this issue. *fn9"

 While the meeting attendance requirement in this case was published as a bylaw, the requirement that a member sign the register at each meeting to demonstrate attendance was not. The "precise terms" of the meeting attendance requirement were thus not made known in advance. A member who actually attended the required number of meetings could not determine with certainty his or her eligibility without knowing of this additional unpublished requirement.

 An agency's application of its own regulations is usually entitled to deference, but there are limits to that deference. Agency action inconsistent with the regulations must be overturned. Shepard v. Merit Systems Protection Board, 209 U.S. App. D.C. 243, 652 F.2d 1040, 1043 (D.C. Cir. 1981). The meeting attendance requirement as applied by the Union was "unreasonable" under the Department's own regulations. Ignoring Doyle's challenge to the requirement on this basis was irrational and arbitrary.

 III. Remedy

 Bachowski indicates that when a district court believes that a statement of reasons is inadequate, it may require that the Secretary furnish additional and satisfactory justification for not filing suit on behalf of a complaining union member. 421 U.S. at 574. At a certain point, however, no statement of reasons can justify the decision not to file suit; in such cases the decision is arbitrary and capricious and must be overturned. See id. at 575.

 The appropriate remedy, however, presents a difficult problem. Plaintiff suggests that an order be entered directing the Secretary to initiate suit. This would be an unusual and troubling step, involving complex issues not resolved in Bachowski, 421 U.S. at 575 & n.12, or subsequent cases. See Sadlowski v. Marshall, 464 F. Supp. 858, 863-64 (D.D.C. 1979); Note, Dunlop v. Bachowski and the Limits of Judicial Review Under Title IV of the LMRDA, 86 Yale L.J. 885, 900-03 (1977). These issues would be best considered with the benefit of the views of counsel for the parties. The Secretary is therefore directed either to initiate suit in accordance with the plaintiff's request or provide a supplemental statement of reasons for not doing so. Balanoff v. Donovan, 569 F. Supp. 962, 966 (N.D. Ill. 1983). If the Secretary decides not to bring suit, the parties will be asked to brief the issue of the appropriate remedy.

 Under the facts and circumstances presented thus far, it appears unlikely that a rational and acceptable explanation for not bringing suit can be advanced. If such cannot be done, the Secretary should reconsider his decision in light of this opinion and avoid further delay or judicial intervention by "proceed[ing] appropriately without the coercion of a court order." Bachowski, 421 U.S. at 576. The Court's concern is that the purposes of the LMRDA not be frustrated by "endless litigation concerning the sufficiency of the written statement." Id. at 575. It would not be appropriate to allow recalcitrance to succeed where rational decisionmaking cannot. State Farm Mutual Auto Insurance v. Department of Transportation, 220 U.S. App. D.C. 170, 680 F.2d 206, 241 (D.C. Cir. 1982), vacated on other grounds sub nom. Motor Vehicle Manufacturers' Ass'n v. State Farm Mutual Auto Insurance, 463 U.S. 29, 77 L. Ed. 2d 443, 103 S. Ct. 2856 (1983).

 An appropriate order will be entered in accordance with this opinion.


 On the basis of the Memorandum Opinion entered in this proceeding, and the findings and conclusions set out therein, it is this 4th day of March, 1986,


 That the plaintiff's motion for summary judgment is granted. That this case is remanded to the Secretary of Labor for action consistent with the Memorandum Opinion. A report on the Secretary's final determination in this matter shall be submitted to the Court by April 7, 1986.



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