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July 19, 1984

Raymond J. DONOVAN, Secretary of Labor, United States Department of Labor, Plaintiff, and Helen Carter, Plaintiff Intervenor,

The opinion of the court was delivered by: MINER


MINER, District Judge.


 The present motion by the Secretary for partial summary judgment, Fed.R.Civ.P. 56(a), is addressed to that aspect of the Secretary's complaint which charges that defendant CSEA's June 15, 1982 mail ballot election violated § 401(e) of the Labor-Management Reporting and Disclosure Act ("LMRDA") by imposing unreasonable candidacy requirements and thereby denying union members the right to be candidates. The heart of the challenge is not to the election itself but rather to the nominating procedures. On June 29, 1984, this Court granted the Secretary's motion for partial summary judgment on his claim that the election violated the LMRDA's secret ballot provisions. A transcript of that decision is appended hereto and incorporated herein.


 Nominations for the CSEA election are governed by Article IV of the union's constitution. A statewide nominating committee, consisting of members selected by the executive board of each of six regions, is required by the constitution to select at least two nominees for the statewide positions of president, executive vice-president, secretary and treasurer. Nominees are selected from among those union members in good standing who have timely submitted a "Request to Be a Candidate" form. In 1982, the committee consisted of eighteen appointed members, and a plurality vote of the committee was required for a nominee to be placed on the ballot.

 The constitution provides no written guidelines to committee members in their selection from among eligible nominees. Members are free to use their own judgment in casting their votes for a candidate. What qualifications are required for statewide office are not set forth in any written or oral instructions to members. The union's position in this litigation, however, is that the committee selects the best qualified candidates.

 Nominations are also placed on the ballot automatically by the committee for those incumbent officers who choose to run again for office. All incumbents chose to be on the ballot in 1982 and were successful in retaining three of the four statewide officer positions. A union member who is rejected by the committee may seek to have his or her name placed on the ballot by independent petition. He or she then has a period of approximately six weeks from notice of the committee's rejection to obtain signatures of not less than two percent of the CSEA members, which in 1982 meant obtaining over 3,800 signatures in six weeks from members located throughout New York State.

 Only one of the candidates on the 1982 ballot was placed there by official petition. Four candidates were incumbents who needed only to consent to be on the ballot, and only four candidates were nominated by the committee for the four positions, although the constitution requires at least two nominations for each position and places no bar to a greater number of nominees


 Section 401(e) of the LMRDA, 29 U.S.C. § 481(e) provides, in pertinent part:

 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 section 504 of this title and to reasonable qualifications uniformly imposed) and shall have the right to vote for or otherwise support the candidate or candidates of his choice. . . .

 Whether a particular procedure is reasonable and capable of uniform application depends to a great extent on its consistency with the purposes of the Act. The main purpose of the Act, of course, is to prevent undemocratic practices in union governance. "Thus, any qualifications that unduly interfere with a free choice of candidates are at cross-purposes with [the Act] and are not "reasonable." Donovan v. Local Union No. 120, Laborers' International Union, 683 F.2d 1095, 1102 (7th Cir.1982).

 The Supreme Court has considered the reasonableness of a qualification for office under § 481(e) on two occasions. In [ Wirtz v. Hotel, Motel and Club Employees Union, Local 6, 391 U.S. 492, 88 S. Ct. 1743, 20 L. Ed. 2d 763 (1968)] the Court invalidated a union rule that restricted eligibility for major union offices to those who held, or who had previously held, some union elective office. The rule was found not to be a "reasonable qualification" because it rendered 93% of the union membership ineligible for higher office, thus making free and democratic elections impossible. Similarly, in [ Local 3489, United Steelworkers of America v. Usery, 429 U.S. 305, 97 S. Ct. 611, 50 L. Ed. 2d 502 (1977)] the Court found a meeting attendance rule invalid because it excluded 96.5% of the union membership from office. The Court decided that the antidemocratic effects of the rule outweighed any benefits derived from it.

 683 F.2d at 1102-03 (footnotes omitted).

 The present case does not fall precisely within the holdings of either of those two cases. In Wirtz v. Hotel, Motel and Club Employees, 391 U.S. 492, 88 S. Ct. 1743, 20 L. Ed. 2d 763, however, the Court provided some general guidance when it noted that "Congress plainly did not intend that the authorization in § 401(e) of "reasonable qualifications uniformly imposed" should be given a broad reach. The contrary is implicit in the legislative history of the section and in its wording. . . ." Id. at 499, 88 S. Ct. at 1748. The Court went on to conclude that in elections, "the assumption is that voters will exercise common sense and judgment in casting their ballots." Id. at 504, 88 S. Ct. at 1750.

 In the instant case, ten CSEA members sought nomination for office by submitting "Request to be a Candidate" forms. The Secretary argues that although the committee was not limited by the union's constitution to a maximum number of candidates per office, it selected only two candidates for president, one each for executive vice-president and treasurer, and none for secretary. As a result, the Secretary concludes, the committee's procedures reduced the opposition to all incumbents who chose to re-run for these elected officers.

 The Secretary concedes that unions have a legitimate interest in imposing minimum standards for candidacy and office-holding in the organization but urges that a balance must be struck with "the dominant purpose of the Act [which] is to ensure the right of members to participate fully in governing their union and to make its officers responsive to the members." 29 C.F.R § 452.35.

 Although the nomination procedures challenged here imposed no express qualification requirements, the thrust of the Secretary's attack is that the nominating committee substituted its judgment for that of individual union members. In particular, the Secretary argues that two committee members appeared to have weighed experience in prior CSEA office as a factor in determining qualification for candidacy. Although here not a formally articulated policy, this type of requirement is precisely the type struck down by the Supreme Court in Wirtz v. Hotel, Motel and Club Employees, 391 U.S. 492, 88 S. Ct. 1743, 20 L. Ed. 2d 763. See also Wirtz v. National Maritime Union, 399 F.2d 544, 550 (2d Cir.1968) ("It must be left to the judgment of each member to determine in particular instances how much weight to give to prior experience").

 Even more importantly, the Secretary challenges the fact that the committee was acting in the absence of any valid criteria or guidelines, leaving each committee member with unbridled discretion to determine who would be candidates, thereby precluding any uniform imposition of requirements. The decision of the Seventh Circuit in Donovan v. Local Union No. 120, Laborers' International Union, 683 F.2d 1095 (7th Cir.1982), offers compelling support for the Secretary's position. Although that case dealt with a formal competency requirement embodied in the union's constitution, the reasoning of the court is equally persuasive here:

 A second and related problem, also noted by the Secretary in 29 C.F.R. § 452.53 is the subjectivity inherent in the application of a vague and general qualification. Without further definition, a judgment that a candidate is or is not "competent to perform the duties of the office" is almost totally subjective. Therefore, the decision to disqualify is largely discretionary, even arbitrary. The question of who judges the qualification becomes vital to its reasonableness under § 481(e).In the case at bar, the decisionmakers were three Judges of Election appointed by the incumbent Board. When so much discretion is placed in the hands of those chosen by the incumbents, the possibilities for abuse are clear, and free and democratic elections are threatened.

 The vague and subjective nature of a competency qualification also brings it into conflict with the specific mandate of § 481(e) that reasonable qualifications be "uniformly imposed." In this case, the district court found "that the Judges of Election did not apply uniform guidelines in considering the competency of candidates appearing before them," and that neither the Local nor the Judges of Election "adopt[ed] any specific factors to be considered in determining the competency of a candidate under Article V, Section 3." Due to the significant rile of personal judgment in determining "competency," it is unlikely that there can be uniform application of the provision. Unlike a qualification for office relating to the minimum age or the minimum length of union membership of the candidate, a competency provision cannot be applied with the precision and certainty necessary to ensure it is "uniformly imposed." A literacy requirement similar to that imposed by the Local's Constitution might be capable of uniform application if certain objective tests are administered to measure ability to read and write. A candidate's competency, on the other hand, cannot be readily determined by an objective test; a candidate's fitness for the office of union president, for example, cannot be readily determined by tests for leadership, loyalty and administrative ability. Though the office at issue in this case, that of Secretary-Treasurer, might make relevant some sort of objective test for record-keeping or accounting ability, there are no tests to evaluate the other, less tangible, qualities associated with "competency."

 A final antidemocratic effect results because the competency provision prevents the membership from making just the sort of evaluation elections are intended to provide. It is certainly true, as the Local submits, that in the abstract competency is a most appropriate qualification for office.Congress intended to ensure competent office holders through the provisions of the Act. However, Congress intended that competent officers be provided through a system of free and democratic elections, not through a screening of candidates by a tribunal using a standard vague enough to allow it to veto any particular candidate.

 As stated by the Court in Hotel Employees, 391 U.S. at 504, 88 S. Ct. at 1750, "Congress' model of democratic elections was political elections in this country. . . . [T]he assumption is that voters will exercise common sense and judgment in casting their ballots." The Local's system of having a tribunal pre-judge the competency of candidates for office does not correspond to the process of political elections. As stated by the Secretary: "In union elections as in political elections, the good judgment of the members in casting their votes should be the primary determinant of whether a candidate is qualified to hold office." 29 C.F.R. § 452.35 (1981).

 We conclude that the requirement of competency, lacking an objective standard, permits arbitrary and subjective barring of candidates by the Judges of Election. By its nature it cannot be uniformly imposed, and it is likely to obstruct the democratic process intended by Congress. Accordingly, it does not qualify as a "reasonable qualification" for office under 29 U.S.C. § 481(e), capable of being "uniformly imposed." 683 F.2d at 1104-05. ...

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