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March 29, 1989

ELIZABETH DOLE, Secretary of Labor, Plaintiff,

The opinion of the court was delivered by: GESELL



 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.

  As the Supreme Court and the Courts of Appeals have frequently stated, the "reasonable qualifications" modification on the right of every member in good standing to run for office is not to be given broad reach. See, Local 3489, United Steelworkers of America v. Usery, 429 U.S. 305, 50 L. Ed. 2d 502, 97 S. Ct. 611 (1977), quoting Wirtz v. Hotel Workers, 391 U.S. at 499; Donovan v. Local Union No. 120, Laborers' Int'l Union of North America, 683 F.2d 1095, 1102 (7th Cir. 1982).

 The Department is correct in stating that age should not serve as a proxy for entrenched leadership, particularly in light of the strong public policy, as evinced in the Age Discrimination in Employment Act, against restricting older, qualified workers, particularly those, like Mr. Badolato, who are under 70. More importantly, rooting out entrenched authority per se was not Congress' goal, though it has become a shorthand for it. Congress' intent was stated in the statute: "every member in good standing shall be eligible to be a candidate and to hold office," and is evidenced in a legislative history focused more on corrupt leadership that entrenches itself by excluding others. Hotel Workers, 391 U.S. at 497-499. Viewed in this light, the restriction makes less sense, as there is certainly no automatic connection between age and corruption, and unlimited tenure may be dealt with by appropriate bylaws limiting length of service in office.

 The plaintiff is entitled to summary judgment due to the inadequate fit between goal of preventing entrenched, corrupt leadership and excluding those over age 65 from running for office. Defendant has not asserted that older workers are unable to meet the demands of the office, or that age restrictions are found throughout comparable unions to be necessary for truly free elections. 29 C.F.R. § 452.36(b). *fn2" Recent cases have scrutinized this "fit" carefully, indeed. Summary judgment was granted for the Department when a union's rules provided that a member was not in "good standing" (and thus unable to run for office) after retirement, despite the union's contention that the retirees have the potential of losing interest or concern about the state of union affairs. Donovan v. Local 25, Sheet Metal Workers, 613 F. Supp. 607 (E.D.Tenn. 1985). The Department of Labor also was granted summary judgment when a union prohibited candidates from having applied for a management position within the preceding two years, despite the unquestioned ability of unions to restrict managers from serving in union offices. McLaughlin v. American Postal Workers Union, 680 F. Supp. 1519 (S.D.Fla. 1988).

 D. Remedy.

 The LMRDA requires the Court to declare the challenged election void and to order the defendant to conduct a new election under the supervision of the Secretary of Labor, if the Court finds that a violation of Title IV of the LMRDA "may have affected the outcome of an election." 29 U.S.C. § 482(c). When an unlawful candidacy qualification has been found, the burden is on the union to show that the violation did not affect the outcome. Wirtz v. Hotel Employees, 391 U.S. at 506-507, 20 L. Ed. 2d 763, 88 S. Ct. 1743.

 An appropriate Order is filed herewith.

 ORDER - March 30, 1989, Filed

 For the reasons set forth in the Court's Memorandum filed this day, it is hereby


 1. Plaintiff's Motion for Summary Judgment is granted.

 2. Article IV, sections 32 and 33 of the AFSCME constitution, insofar as they contain age restrictions, are declared unlawful.

 3. Defendant's motion for summary judgment is denied.

 4. If defendant contends that its unlawful age restriction could not have affected the outcome of the election, it shall file within with the Clerk of Court within ten days a memorandum stating its reasons. If no such filing is made, the Department of Labor may proceed to have new elections for the affected region.

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