The opinion of the court was delivered by: PARKER
Barrington D. Parker, Senior District Judge:
Under 29 U.S.C. § 482 (1982), the Secretary of Labor is authorized to sue in a federal district court on behalf of a union member to set aside an allegedly invalid union election. In this proceeding plaintiff Thomas Doyle sues the Secretary because of his refusal to bring an action against Local 6 of the International Brotherhood of Electrical Workers ("Local 6" or "Union") to overturn a union election held in June 1984. Ruling insufficient the Secretary's initial statement of reasons
for that refusal, the Court remanded the matter to the Secretary for further consideration of Doyle's challenge.
Doyle, a candidate for union office, was declared ineligible to run by Local 6 because of a meeting attendance requirement contained in the Union bylaws. He maintains that the Secretary should file suit against the Union because the meeting attendance requirement is not a "reasonable qualification" for union office under 29 U.S.C. § 481(e). The relevant background of the case is set out in the Court's Memorandum Opinion of March 4, 1986, Doyle v. Brock, 632 F. Supp. 256 (D.D.C. 1986).
Upon remand, the Secretary again determined not to sue Local 6 on plaintiff's behalf and, as required by the remand order, offered a supplemental statement of reasons ("Supplemental Statement") for that decision. The Supplemental Statement must now be reviewed under the standard set out in Dunlop v. Bachowski, 421 U.S. 560, 44 L. Ed. 2d 377, 95 S. Ct. 1851 (1975), and discussed in the earlier opinion. 632 F. Supp. at 258; see also Shelley v. Brock, 793 F.2d 1368, slip op. at 5-7 (D.C. Cir. 1986). While it is far more detailed than the previous statement and, in contrast to the earlier effort, at least attempts to answer plaintiff's claims, the Court again concludes that the Secretary has failed to offer a rational explanation consistent with current caselaw for the refusal to file suit.
The original statement of reasons for not filing suit was found inadequate for two independent reasons. First, it failed to adequately address Doyle's claim that the challenged bylaw has no legitimate justification that outweighs its significant anti-democratic effect, that is, the exclusion of 97 percent of the Union's membership from candidacy in the election. The initial statement did not even recognize the substantial precedent indicating that the exclusion of such a large percentage of members often makes a qualification unreasonable. Second, the statement did not explain the Secretary's rejection of Doyle's claim that the Union's use of an attendance roster to determine candidate eligibility violated Department of Labor regulations since the means of complying with eligibility requirements was not clearly expressed in the bylaws or other duly enacted rules. The Supplemental Statement adequately addresses the second issue, but does not provide a consistent and rational analysis sufficient to justify not filing suit on basis of the first.
The Supplemental Statement treats much more thoroughly Doyle's contention that the application of the meeting attendance requirement by referring only to the attendance roster violated a provision of the Department's own regulations interpreting the "reasonableness" of candidacy qualifications. 29 C.F.R. § 452.53 (1985). The general meeting attendance requirement was published in a bylaw and anyone intending to meet it would have to attend meetings or request excuses. The Secretary found that "the local's procedure for determining meeting attendance . . . was a longstanding practice known to members attending the Local's regular meetings." Supplemental Statement at 12; accord id. at 3. Thus, the Secretary concluded that "any member seeking to qualify under Rule 9(f) would have notice of the requirement that he or she sign the Register of Attendance." Id. at 12. The finding that members knew the purpose of the attendance roster and that Doyle's assertion of his own lack of knowledge was not credible, Supplemental Statement at 6, are not open to challenge under Bachowski. Based on his investigation, the Secretary concluded that the application of the qualification contained in the Union bylaws was not unreasonable, and the Court does not believe this conclusion was irrational.
Under Department of Labor regulations, the "availability and extent of excuse provisions" is a factor considered by the Secretary in deciding whether a meeting attendance requirement is reasonable. 29 C.F.R. § 452.38(a) (1985). So too, however, is "the impact of the rule, i.e., the number or percentage of members who would be rendered ineligible by its application." Id. The Supplemental Statement offers no rational or defensible explanation why the former factor can or should neutralize the latter when a very high percentage of the membership is excluded. In fact, as noted in the previous Memorandum Opinion, the courts have never accepted the argument that a liberal excuse provision can save an otherwise overly restrictive attendance requirement. 632 F. Supp. at 261. It is not rational for the Secretary to defend a union bylaw with a justification that has been rejected by the courts in cases where the Secretary challenged similar bylaws. Cf. Shelley v. Brock, at 1374 ("[The Secretary] must provide an explanation for his decision that is both clear and founded on grounds permitted by the statute or the case law.").
Furthermore, it is far from clear, contrary to the Secretary's implied position, that the absence of liberal excuse provisions is of overriding importance to courts reviewing meeting attendance requirements for reasonableness. While the government claims that the challenged bylaw in Cincinnati Area Local severely restricted allowable excuses, there is no indication in the district court's opinion that this had any influence on the decision striking down the election. The government also argues that "the lack of any excuse provision can render an otherwise reasonable meeting attendance requirement unreasonable." Supplemental Statement at 10 n.3. In the case cited for this proposition, Marshall v. Millwrights Local No. 1914, 107 L.R.R.M. (BNA) 2938 (D. Ariz. 1981), the union bylaw, like the bylaw at issue in this case, required attendance at six meetings in the preceding year. No excused absences were given for any reason. The district court invalidated the challenged election, noting the lack of an excuse provision and that the bylaw excluded 88 percent of the membership from running for office. The opinion does not state or even imply that a liberal excuse provision would have saved the bylaw or one like it that renders ineligible for candidacy an even greater percentage of members.
In sum, the government's reliance on Local 6's excuse provision as reason for not filing suit is flawed and unsupported ...