from union candidacy. The Supplemental Statement does little more than replow in more detail ground already covered in the initial statement of reasons, but it does make clear that the Secretary's primary reason for not moving to strike down the qualification on this ground was the liberal excuse policy contained in Article III, section 9(g) of the bylaws. No other explanation is offered or apparent for the inconsistency between his refusal to bring suit in this case and his successful challenge to a less restrictive attendance requirement in Donovan v. Cincinnati Area Local, American Postal Workers Union, No. C-1-81-776 (S.D. Ohio January 11, 1983) (unpublished opinion) (union bylaw excluded from candidacy members who failed to attend four of the previous 12 regularly scheduled union meetings). According to the Secretary, the attendance requirement in the Cincinnati Area Local case was coupled with a very restrictive excuse provision. Supplemental Statement at 9 n.2.
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 by caselaw or rational argument.
In addition, the only justification asserted on behalf of the bylaw, that "it can be viewed as encouraging participation in union affairs by potential candidates in the period immediately prior to the election," Supplemental Statement at 9, does not counterbalance its extreme antidemocratic effect. In part, the justification is simply a variation of, and is no more convincing than, the "ensures qualified candidates" rationale that was questioned in Local 3489, United Steelworkers of America v. Usery, 429 U.S. 305, 312, 50 L. Ed. 2d 502, 97 S. Ct. 611 (1977). See Doyle v. Brock, 632 F. Supp. at 260. It also is similarly undermined by the liberal excuse provision. Finally, the bylaw has totally failed to accomplish its asserted purpose in this instance, if participation in union affairs is measured by union meeting attendance.
Unlike the district court in Cincinnati Area Local, this Court is not troubled that meeting attendance requirements, even those that do not seem especially onerous, are closely scrutinized by the courts and unfavorably received when they greatly restrict the free choice of the membership in choosing its leaders. Title IV of the Labor-Management Reporting and Disclosure Act, 29 U.S.C. § 481 et seq., was intended to guarantee free and democratic union elections, modeled on our national political elections. Steelworkers, 429 U.S. at 310. Our political system does not impose artificial requirements on potential candidates to protect the public from unworthy or unqualified leadership. We do not, for example, empower political parties or some other commission or government board to administer an examination to candidates for national office and pass judgment on their familiarity with specified issues of national importance. Nor do we require local candidates to attend a specified number of town meetings or party caucuses to qualify for the ballot. Our democratic system assumes the ability of the populace to discern qualified and capable leaders, to "exercise common sense and judgment in casting their ballots." Wirtz v. Hotel Employees Union, Local 6, 391 U.S. 492, 504, 20 L. Ed. 2d 763, 88 S. Ct. 1743 (1968). There are times when some may feel that such an assumption is not justified, but the freedom of all of us would be curtailed were we to abandon it.
This Court is well aware of the procedural posture of this matter, and the narrow standard of review permitted by Bachowski. Shelley v. Brock, at 1372 ("The standard by which the courts are to review the Secretary of Labor's decision under the LMRDA is quite deferential"). To find for the plaintiff, the Court must conclude not that it would overturn the election if challenged by the Secretary, but that the decision not to challenge the election was so irrational as to be arbitrary and capricious. Cf. Balanoff v. Donovan, 569 F. Supp. 966, 971 (N.D. Ill. 1983). Thus, if this were a close case, testing the outer limits of current authority on meeting attendance requirements, the Court would uphold the Secretary's decision. But when the arguments asserted on behalf of the bylaw are so plainly contrary to the thrust of prior judicial rulings, the Secretary's reliance on them is incomprehensible and his decision must be rejected.
In the Court's view, two bites at this apple would appear to be more than adequate. This opinion constitutes a final determination that the Secretary's decision not to file suit on behalf of the plaintiff was and is arbitrary and capricious. The likelihood that a further statement of reasons would cause the Court to change its view of the Secretary's decision is so small, and the importance of rapid action so great,
that no further statement is requested, nor will it be considered. The government is encouraged to expedite its decision whether to appeal this ruling.
An appropriate order will be entered.
In accordance with the Memorandum Opinion filed in this proceeding, the Court finds that the defendant's Supplemental Statement of Reasons for the decision not to file suit on behalf of plaintiff Thomas Doyle is insufficient under Dunlop v. Bachowski, 421 U.S. 560, 572-73, 44 L. Ed. 2d 377, 95 S. Ct. 1851 (1975). Accordingly, it is this 2nd day of July, 1986,
That defendant shall inform the Court by August 4, 1986 whether he intends to file suit on behalf of the plaintiff or appeal this Court's final decision.