[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
