[Federal Register Volume 59, Number 114 (Wednesday, June 15, 1994)]
[Unknown Section]
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From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-14542]


[[Page Unknown]]

[Federal Register: June 15, 1994]


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Part II





Department of Labor





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Office of Labor-Management Standards



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29 CFR Part 452




Eligibility Requirements for Candidacy for Union Office; Proposed Rule
DEPARTMENT OF LABOR

Office of Labor-Management Standards

29 CFR Part 452

RIN 1294-AA09

 
Eligibility Requirements for Candidacy for Union Office

AGENCY: Office of Labor-Management Standards, Labor.

ACTION: Advance Notice of Proposed Rulemaking.

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SUMMARY: The Office of Labor-Management Standards is requesting 
comments from the public on how its interpretative regulations on labor 
organization officer elections should be modified. The regulations may 
need to be modified in order to accommodate a decision of the Court of 
Appeals for the District of Columbia Circuit regarding the 
reasonableness of meeting attendance requirements set by labor 
organizations for eligibility for union office.

DATES: Interested parties may submit comments on or before August 15, 
1994.

ADDRESSES: Written comments should be submitted to Edmundo A. Gonzales, 
Deputy Assistant Secretary for Labor-Management Standards, Office of 
the American Workplace, U.S. Department of Labor, 200 Constitution 
Avenue, NW., Room S-2203, Washington, D.C. 20210.

FOR FURTHER INFORMATION CONTACT: Kay H. Oshel, Chief, Division of 
Interpretations and Standards, Office of Labor-Management Standards, 
Office of the American Workplace, U.S. Department of Labor, 200 
Constitution Avenue, NW., Room N-5605, Washington, D.C. 20210, (202) 
219-7373. This is not a toll-free number.

SUPPLEMENTARY INFORMATION:

I. Background and Overview

    Title IV of the Labor-Management Reporting and Disclosure Act of 
1959, as amended (LMRDA), sets forth standards and requirements for the 
election of labor organization officers. Section 401(e), 29 U.S.C. 
481(e), provides in part that every member in good standing has the 
right to be a candidate subject ``to reasonable qualifications 
uniformly imposed.''
    The Department is responsible for enforcing LMRDA title IV. After 
receipt of a timely complaint from a member and a finding that a 
violation may have affected the outcome of an officer election, the 
Secretary brings civil action in U.S. district court where the union is 
located seeking a new election supervised by the Secretary.
    The Department does not have formal rulemaking authority to set 
standards and requirements regarding LMRDA title IV. However, the 
Department has issued interpretative regulations, 29 CFR part 452, in 
order to provide the public with information as to the Secretary's 
``construction of the law which will guide him in performing his 
[enforcement] duties.'' 29 CFR 452.1.
    Two provisions in the Department's interpretative regulations 
regarding LMRDA title IV discuss in general terms the issue of 
reasonable candidate qualifications, and one provision deals 
specifically with meeting attendance requirements. The first general 
provision on candidate qualifications, 29 CFR 452.35, provides that 
although labor organizations may have a legitimate interest in setting 
minimum standards for office-holding, a basic principle of the free and 
democratic elections which the LMRDA is intended to ensure is that 
members will exercise good judgment and common sense in voting for 
officers. Consequently, qualifications for candidacy must be closely 
scrutinized to determine that they serve union purposes of such 
importance, in terms of protecting the union as an institution, as to 
justify subordinating the right of the individual member to seek office 
and the interest of the membership in a free, democratic choice of 
leaders.
    The second general provision dealing with reasonable candidate 
qualifications is 29 CFR 452.36. Section 452.36(a) states that although 
the question of whether a qualification is reasonable is not subject to 
precise definition and will ordinarily depend on the facts of each 
case, court decisions furnish some general guidelines. In particular, 
Sec. 452.36(a) cites Wirtz v. Hotel, Motel and Club Employees Union, 
Local 6, 391 U.S. 492 (1968), in which the Supreme Court stated that 
the term ```reasonable qualifications uniformly imposed' should not be 
given a broad reach,'' Id., at 499, and ``Congress' model of democratic 
elections was political elections in this country.'' Id., at 502. 
Consequently, Sec. 452.36(a) states that

    [U]nion qualifications for office should not be based on 
assumptions that certain experience or qualifications are necessary 
* * * and a qualification may not be required without a showing that 
citizens assumed to make discriminating judgments in public 
elections cannot be relied on to make such judgments when voting as 
union members.

    29 CFR 452.36(b) goes on to enumerate five factors to be considered 
in determining whether a qualification for candidacy is reasonable: (1) 
The relationship of the qualification to the union's legitimate needs 
and interests; (2) the relationship of the qualification to the demands 
of the union office; (3) the impact of the qualification in reducing 
the number of eligible members in light of the LMRDA's purpose in 
fostering membership participation in union affairs; (4) the 
appropriateness of the qualification in view of requirements prescribed 
by other unions; and (5) the difficulty in meeting the qualification.
    In addition to the general discussions of candidate qualifications 
in 29 CFR 452.35 and Sec. 452.36, 29 CFR 452.38 deals specifically with 
meeting attendance requirements. This provision states that it may be 
reasonable to require attendance at a certain number of meetings 
immediately preceding an officer election in order to insure that 
candidates have an interest in and familiarity with the union's 
affairs, and that the reasonableness of a meeting attendance 
requirement must be gauged in light of all the circumstances of the 
particular case, including not only the frequency of meetings, the 
number of meetings which must be attended and the period of time over 
which the requirement extends, but also such factors as the nature, 
availability and extent of excuse provisions, whether all or most 
members have the opportunity to attend meetings, and the impact of the 
rule, i.e., the number or percentage of members who would be rendered 
ineligible by its application.
    Sections 452.38(a-1) and 452.38(b) cite a number of specific court 
decisions which provide guidance on the type of meeting attendance 
requirements that would be held unreasonable. Sec. 452.38(a-1) 
discusses the Supreme Court decision in Steelworkers, Local 3489 v. 
Usery, 429 U.S. 305 (1977). The Court held that a candidate 
qualification requiring attendance at half the meetings for three years 
preceding the election which made 96.5% of the members ineligible was 
unreasonable. The Court also stated that the standard set forth in 
Sec. 452.38(a) for determining the reasonableness of meeting attendance 
eligibility requirements is the type of flexible rule which Congress 
contemplated in using the word ``reasonable'' in LMRDA Sec. 401(e).
    Finally, Sec. 452.38(b) cites four court decisions which held the 
meeting attendance requirement at issue unreasonable because of several 
of the factors cited in the standard established in Sec. 452.38(a). One 
candidate qualification required attendance at one meeting each quarter 
for three years prior to the election and disqualified 99% of the 
membership. Another candidate qualification required attendance at 75% 
of the meetings for two years before the election, had a very limited 
excuse provision, and disqualified 97% of the members. A third 
candidate qualification required attendance at all of the eight 
meetings between the nomination and the election, which were held at 
widely scattered locations in the state. The final candidate 
qualification discussed in Sec. 452.38(b) required attendance at six 
meetings per year for two years before the election, which would 
require that a member decide to be a candidate at least 18 months 
before the election.
    In summary, Secs. 452.35 and 452.36 discuss the basic issues 
involved in reviewing all types of qualifications for candidacy for 
union office, and Sec. 452.36 in particular lists five factors to be 
considered in making determinations. Section 452.38 deals specifically 
with meeting attendance requirements. It states at the outset that this 
type of qualification may serve legitimate union purposes. It then sets 
forth a flexible standard, which elaborates upon the factors 
established in Sec. 452.36, for determining whether a meeting 
attendance requirement is unreasonable: (1) The terms of the 
requirement itself, i.e., whether it requires a member to decide to 
meet the qualification in order to be a candidate an excessively long 
period in advance of the election, (2) the difficulty of meeting the 
requirement, i.e., the opportunity to attend meetings held at times and 
places that are not excessively inconvenient and the availability of 
excuse provisions, and (3) the impact of the requirement.
    These regulations may need to be revised as a result of the ruling 
of the United States Court of Appeals for the District of Columbia 
Circuit in Doyle v. Brock, 821 F.2d 778 (D.C. Cir. 1987). Doyle deals 
with a case in which the Secretary, after investigating a complaint 
filed by a member regarding his union's meeting attendance requirement, 
decided not to bring civil action against the union even though the 
requirement (half the meetings during the year prior to the election) 
disqualified 97% of the members. The Secretary's position, relying on 
the ``all the circumstances'' language set forth in 29 CFR 452.38, was 
that since the requirement was not on its face unreasonable (i.e., it 
did not require a member to decide to become a candidate an excessively 
long period before the election) and it was not difficult to meet 
(i.e., the meetings were held at convenient times and locations and the 
union provided liberal excuse provisions), the large impact of the 
requirement was not by itself sufficient to render it unreasonable.
    The member then filed suit against the Secretary in the U.S. 
District Court for the District of Columbia, in accordance with the 
Supreme Court's decision in Dunlop v. Bachowski, 421 U.S. 560 (1975). 
(In Bachowski, the Court held that judicial review of the Secretary's 
decision not to bring litigation in LMRDA title IV cases is available 
under the Administrative Procedure Act.) The district court held that 
the Secretary's decision not to bring litigation against the union was 
arbitrary and capricious, Doyle v. Brock, 641 F. Supp. 223 and 632 F. 
Supp. 256 (D.D.C. 1986).
    The court of appeals in Doyle affirmed the district court's 
decision. It rejected the Secretary's position summarized above, 
emphasizing the importance of the impact of the requirement in this 
case in disqualifying 97% of the membership.
    There is no basis, in [the Supreme Court's decision in 
Steelworkers, Local 3489] or in any other case, for the notion that an 
attendance requirement that has a large antidemocratic effect can be 
reasonable on its face, and that some additional factor is necessary to 
find the requirement violative of the LMRDA. Id., at 785.
    The court of appeals also rejected the Secretary's reliance on the 
fact that the Supreme Court in Steelworkers, Local 3489 (where 96.5% of 
the membership was disqualified by the requirement to attend half of 
the meetings in the preceding three years) did not adopt a per se rule 
based on impact, but in fact cited with approval the flexible standard 
set forth in 29 CFR Sec. 452.38. The court stated that

    [I]t is true that Steelworkers did not adopt a per se effects 
test. Nonetheless, it came ``close to doing so. The fact that 96.5% 
of Local 3489's members chose not to comply with its rule was given 
controlling weight.'' [Quoting from the dissenting opinion in 
Steelworkers, Local 3489; citations omitted.] Thus, although one 
must read Steelworkers as holding that attendance requirements are 
to be subjected to a case-by-case analysis, the analysis is limited 
to determining only if ``the anti-democratic effects of the meeting-
attendance rule outweigh the interests urged in its support.'' 
[Quoting from Steelworkers, Local 3489; citations omitted.] * * * In 
fact, it appears that the ``all the circumstances'' language is 
included to help assess the reasonableness of a requirement in which 
the antidemocratic effect is not as dramatic as the one in 
Steelworkers or the instant case. Id., at 785.

    The court of appeals, again citing the Supreme Court decision in 
Steelworkers, Local 3489, also rejected ``the argument that the 
reasonableness of a requirement is to be judged by the burdensomeness 
of compliance.'' Id., at 784. Candidacy qualifications must be judged 
by their effect on free and democratic elections.
    The court of appeals further stated that only a demonstration that 
a rule serves important union interests can justify a candidate 
qualification having a large antidemocratic effect. The union's 
interest cited in Doyle (encouraging participation in union affairs by 
potential candidates) has not been served by the meeting attendance 
requirement, and the existence of liberal excuse provisions ``severely 
undercuts both the legitimacy of the claim and the effectiveness of the 
provision in achieving its alleged objective.'' Id., at 786.
    In summary, the court emphasized the importance of the impact of 
meeting attendance requirements, especially where the number of members 
excluded results in a ``large'' antidemocratic effect. The court's 
discussion also raised questions about the relevance of other factors 
such as the availability of excuse provisions and the difficulty of 
complying with meeting attendance requirements.
    After the Doyle decision was issued, the union did not apply the 
meeting attendance requirement in the next (1987) regularly scheduled 
election, and it subsequently eliminated the requirement. Nonetheless, 
the interpretative regulations may need to be modified in order to be 
consistent with the court's holdings in Doyle. The provision of the 
regulations which is most directly affected by Doyle is 29 CFR 452.38. 
In addition, Doyle and its construction of Steelworkers, Local 3489 may 
have implications for 29 CFR 452.35 and 452.36, which deal generally 
with candidate qualifications and the factors to be considered in 
determining whether they are reasonable.

II. Request for Comments

    There are several general ways in which the regulations can be 
modified in light of Doyle. The option which would require the greatest 
change in the regulations is to hold that meeting attendance 
requirements are per se unreasonable. The basis for this position would 
be that this type of qualification does not serve union interests of 
such importance to justify limiting the rights of members to be 
candidates and vote for candidates of their choice, and/or that this 
type of qualification often excludes large numbers of members.
    This option provides the simplest resolution (in that case-by case 
determinations would not be necessary), results in no uncertainty (in 
that unions and members would know in advance that the Department will 
challenge all meeting attendance requirements), and is most consistent 
with the free and open elections which the LMRDA is intended to foster; 
it would also eliminate any perceived advantage of incumbent officers 
who attend meetings as part of their duties. A disadvantage of this 
option is that adopting a flat prohibition in place of the current 
case-by-case approach may be too broad a reading of Doyle, and would 
eliminate a rule which may provide some benefits to unions and their 
members.
    The option which would require the least change in the regulations 
would retain language to the effect that the reasonableness of a 
meeting attendance requirement is determined by reviewing a number of 
factors on a case-by-case basis, and add a statement to the effect that 
there is an inverse relationship between the portion of the membership 
that is disqualified by the requirement and the probability that the 
requirement will be considered reasonable. That is, the greater the 
portion of the membership that is disqualified by a meeting attendance 
requirement, the less likely the union will be able to justify the 
requirement.
    The advantages of this option are that it is intended to closely 
follow the court decisions in Doyle and it retains the case-by-case 
approach approved by the Supreme Court in Steelworkers, Local 3489. A 
disadvantage is that it provides little guidance to labor organizations 
and members as to whether a particular rule will be considered 
unreasonable. (In this connection, however, it should be noted that the 
Supreme Court in Steelworkers, Local 3489 recognized that a flexible 
rule, which ``Congress clearly contemplated'' in using the word 
``reasonable,'' leads to uncertainty. The Court also stated that the 
``contention that [one would have] no way of knowing that a rule 
disqualifying 90% of a local's members from office would be regarded as 
unreasonable in the absence of substantial justification is 
unpersuasive.'' 429 U.S. 305, at 313-4 (1977).)
    A third option, actually a combination of the first two, would be 
to generally retain the case-by-case analysis of multiple factors, but 
add a statement to the effect that once the portion of the disqualified 
membership reaches a certain percentage (such as 50%, 75%, or 90%), the 
meeting attendance rule will be considered unreasonable per se. The 
advantages of this approach are that it retains the case-by-case 
approach as in the second option but provides more guidance. The 
disadvantage is that any particular number which is chosen would be 
somewhat arbitrary.
    Specific comments are requested on the merits of each of these 
three options for revising Sec. 452.38, as well as suggestions for 
other options. Most helpful would be comments, especially by those 
unions which have meeting attendance requirements, providing detailed 
information and data on

--The nature and importance of the union interests which are claimed to 
be served by meeting attendance requirements,
--Whether (and if so, how) those interests have in fact been served by 
the requirements,
--The impact of those requirements on the percentage of members 
disqualified from candidacy, especially with regard to non-incumbents, 
and
--With regard to the third option, what the appropriate threshold 
percentage of disqualified members should be for the qualification to 
be considered unreasonable.

    Comments are also specifically requested on whether changes are 
necessary and/or appropriate to make Secs. 452.35 and 452.36 consistent 
with Doyle, particularly in connection with the references in those 
provisions to factors to be considered in assessing the reasonableness 
of a qualification for candidacy such as

--The impact of candidate qualifications,
--The difficulty in meeting a candidate qualification, and
--The candidate requirements of other unions.

    Finally, suggestions are requested for the specific language of 
revised Sec. 452.38 and, if appropriate, Secs. 452.35 and 452.36.

III. Administrative Notices

A. Executive Order 12866

    The Department of Labor has determined that this rule is not a 
significant regulatory action as defined in section 3(f) of Executive 
Order 12866 in that it will not (1) have an annual effect on the 
economy of $100 million or more, or adversely affect in a material way 
the economy, a sector of the economy, productivity, competition, jobs, 
the environment, public health or safety, or State, local, or tribal 
governments or communities, (2) create a serious inconsistency or 
otherwise interfere with an action taken or planned by another agency, 
(3) materially alter the budgetary impact of entitlements, grants, user 
fees, or loan programs or the rights and obligations of recipients 
thereof, or (4) raise novel legal or policy issues arising out of legal 
mandates, the President's priorities, or the principles set forth in 
Executive Order 12866.

B. Regulatory Flexibility Act

    The Agency Head has certified that any revision to the regulations 
considered in this rulemaking process will not have a significant 
impact on a substantial number of small entities as defined in the 
Regulatory Flexibility Act. Any regulatory revision will only apply to 
labor organizations, and the Department has determined that labor 
organizations regulated pursuant to the statutory authority granted 
under the LMRDA do not constitute small entities. Therefore, a 
regulatory flexibility analysis is not required.

C. Paperwork Reduction Act

    This rule contains no information collection requirements for 
purposes of the Paperwork Reduction Act of 1980 (44 U.S.C. 3501 et 
seq.).

List of Subjects Affected in 29 CFR Part 452

    Labor unions.

    Signed in Washington, DC, this 9th day of June 1994.
Martin Manley,
Assistant Secretary for the American Workplace.
[FR Doc. 94-14542 Filed 6-14-94; 8:45 am]
BILLING CODE 4510-86-P