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DOLE v. AMERICAN FEDN. OF STATE

March 29, 1989

ELIZABETH DOLE, Secretary of Labor, Plaintiff,
v.
AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL EMPLOYEES, AFL-CIO, Defendant



The opinion of the court was delivered by: GESELL

 GEBHARD A. GESELL, UNITED STATES DISTRICT JUDGE

 This case comes before the Court on cross-motions for summary judgment. The plaintiff is the Secretary of Labor of the United States Department of Labor. She brings the action under Title IV of the Labor-Management Reporting and Disclosure Act of 1959 ("LMRDA" or "the Act") to challenge certain of the defendant union's bylaws affecting an election of its officers in June, 1988. The challenge arises from the union's exclusion, pursuant to the union constitution, (hereinafter "bylaw"), of Dominic J. Badolato from running for re-election as an International Vice President on the grounds that he had attained the age of 65 years or older in the calendar year preceding the election.

 A. Jurisdiction.

 The Court's jurisdiction is found in 29 U.S.C. § 482(b). The Labor-Management Reporting and Disclosure Act authorizes a union member to complain to the Secretary about a union's officer election, alleging a violation of section 481, within a month after exhausting his internal union remedies. In this instance, Badolato was barred from running for election on June 23, 1988. After exhausting his internal union remedies, he filed his complaint with the Department of Labor on July 5, 1988. The Secretary investigated the complaint, found probable cause to believe that a violation of the subchapter occurred, and filed a complaint in this court within the requisite time period (an extension having been consented to by defense counsel).

 The issue before the Court is whether the AFL-CIO's restriction on eligibility for high union office to those under age 65 is a "reasonable qualification" for office under LMRDA, 29 U.S.C. § 481(e), which provides that:

 
In any election required by this section . . . a reasonable opportunity shall be given for the nomination of candidates and every member in good standing shall be eligible to be a candidate and to hold office (subject to § 504 of this title and to reasonable qualifications uniformly imposed) . . .

 B. Arguments of the Parties.

 The union urges that its bylaw is reasonable because it is designed to ensure that the composition of the leadership reflects that of the union's membership and that, in fact, it excludes only a tiny percentage of the electorate. The union points out that in this particular case, Mr. Badolato held his office for 18 years prior to his disqualification and claims that prohibiting the election of older workers ensures that officers do not become entrenched in office. This prohibition, then, is claimed to be in harmony with the purposes of LMRDA because it insures fair, democratic elections. Accordingly, government interference in the election would in this case be an unnecessary intrusion into internal union affairs.

 The Department of Labor urges that union members are competent to choose, by their votes, to throw out those officers who are "unrepresentative" of the union electorate, and that the choice should not be made for them by a broad prohibitory rule excluding older workers. It further urges that defendant had notice before the election that the Department of Labor prohibited age discrimination in union elections, that this regulation, 29 CFR § 452.46 (1988) *fn1" , is entitled to judicial deference, and that the Court should read the LMRDA in harmony with the Age Discrimination in Employment Act. Finally, it contends that there is no "fit" between the union's stated goal of stimulating new membership on its elective boards and the union's bylaw, because the union does not limit the number of consecutive terms one person may serve.

 C. Analysis.

 This union election appears to be a far cry from the glaringly undemocratic and entrenched election procedure set aside in the lead case dealing with "reasonable requirements" under the LMRDA, Wirtz v. Hotel, Motel & Club Employees Union, Local 6, 391 U.S. 492, 20 L. Ed. 2d 763, 88 S. Ct. 1743 (1968). In that case, only 1,725 of the 27,000 union members were eligible to run for the May 1965 election, whereas the restriction at issue in the instant case limits fewer than 2.8% of defendant's members. The leading case in this Circuit also concerned a high percentage excluded. Doyle v. Brock, 261 U.S. App. D.C. 290, 821 F.2d 778 (D.C.Cir. 1987) (97% disqualified; Secretary's decision not to sue was arbitrary and capricious).

 At bottom, however, it is not the magnitude of the effect at issue, but whether or not the election conforms to § 481(e)'s requirement that " every member in good standing shall be eligible to be a candidate and to hold office (subject to § 504 of this title and to reasonable qualifications uniformly imposed)." Mr. Badolato was excluded on the basis of his age, and the bylaw is a straight forward violation of the Act and implementing regulation previously cited, which is entitled to deference.


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