Brown v. Lowen

• Decision Date: 14 September 1988
• Docket Number: No. 88-2876,88-2876
• Parties: 129 L.R.R.M. (BNA) 2363, 113 A.L.R.Fed. 781, 57 USLW 2223, 109 Lab.Cas. P 10,725 Timothy A. BROWN, Plaintiff-Appellee, v. Robert J. LOWEN, F. Elwood Kyser, and International Organization of Masters, Mates, and Pilots, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 216

857 F.2d 216

129 L.R.R.M. (BNA) 2363, 113 A.L.R.Fed.

781, 57 USLW 2223,

109 Lab.Cas. P 10,725

Timothy A. BROWN, Plaintiff-Appellee, v. Robert J. LOWEN, F. Elwood Kyser, and International Organization of Masters, Mates, and Pilots Defendants-Appellants.

No. 88-2876.

United States Court of Appeals Fourth Circuit.

Argued July 28, 1988.

Decided Sept. 14, 1988.

W. Michel Pierson, Baltimore, Md., for defendants-appellants.

Paul Alan Levy (Arthur L. Fox, II, Alan B. Morrison, Public Citizen Litigation Group, Washington, D.C., on brief), for plaintiff-appellee.

Before RUSSELL, WIDENER and HALL, Circuit Judges.

DONALD RUSSELL, Circuit Judge:

This appeal is from an order of the district court issuing a preliminary injunction in favor of the plaintiff, Timothy Brown. Plaintiff is a candidate for president of the International Organization of Masters, Mates and Pilots (IOMPP) of which defendant, Robert Lowen, is the current president. The district court has ordered IOMPP to provide plaintiff with mailing labels containing the names and addresses of voting members of the union. Though the order of the district judge related to an application for a preliminary injunction, the granting of the motion in effect constituted a decision on the merits. Accordingly, we have reviewed this case on the merits. Doing so, we affirm the decision of the district court as one on the merits.

IOMPP is a labor organization comprised of workers in the maritime industry. The union conducts quadrennial elections of its officers. Nominations of candidates for these offices are made at the union's convention. Any eligible member of the union may be nominated. To be eligible a person need be a union member in good standing. A member may even nominate himself. Ballots containing the names of those nominated are then mailed to members of the union not sooner than ten days nor later than thirty days after the end of the convention. The union then allows ninety days from the mailing of the ballots until they must be returned.

The crux of this dispute arises from plaintiff's desire to distribute campaign literature, at his own expense, to the union's membership before the nominating convention. Only through the union can plaintiff obtain a complete list of the union membership with their addresses. However, the procedures used by the union provide that "[t]he right to distribution of literature only commences after the nomination procedure is complete."

The Labor-Management Reporting and Disclosure Act of 1959 at 29 U.S.C. Sec. 481(c), however, provides in pertinent part that unions and their officers "shall be under a duty, enforceable at the suit of any bona fide candidate for office ... to comply with all reasonable requests of any candidate to distribute by mail or otherwise at the candidate's expense campaign literature in aid of such person's candidacy to all members in good standing of such labor organization...." It is on this provision of the Act that the plaintiff relies for his right to have his campaign material mailed to union members within thirty days before the quadrennial meeting of the union.

The Act seems plain on its face: If the request to distribute by one qualified to be a candidate for union office, even though he is yet to be nominated is "reasonable" the union is required to "comply with all [such] reasonable requests." This language conditions the right of the contesting union office seeker to have his campaign material distributed only on the reasonableness of his request. If his request is reasonable, the language of the statute granting the request is mandatory. Whether the request is reasonable is a matter to be determined consistent "with the Act's command to unions to conduct 'free and democratic' union elections." Steelworkers v. Usery, 429 U.S. 305, 309, 97 S.Ct. 611, 614, 50 L.Ed.2d 502 (1977). Accordingly, if it can be said that the candidate's request is reasonable the statute upholds the right of the candidate to have his request granted. Such conclusion is nothing more than a reading of the plain language of the statute and, as we said recently in United States v. Morison, 844 F.2d 1057, 1064 (4th Cir.1988), when the terms of "a statute are unambiguous on their face, or in light of ordinary principles of statutory interpretation, then judicial inquiry is complete (citations omitted)." We find that whether the plaintiff is entitled to have his request granted depends entirely on whether his request may be said to be reasonable.

Our reading of the statute accords with the administrative construction of the statute's mandate as declared by the Secretary of Labor, to whom the enforcement of the statute is entrusted. The Department of Labor has repeatedly declared that the statutory command is to be observed if it is reasonable. It has stated categorically that, under its construction of the statute, the critical issue is not whether the union's rules or by-laws are reasonable (as the union argues) but whether the request of the plaintiff is reasonable, primarily in its timing. Indeed, in a letter to the union regarding this specific request of the plaintiff, the Director of the Office of Elections, Trusteeships and International Union Audits of the Department of Labor, advised that

A self-professed candidate is entitled to make campaign literature mailings at his own expense and may ask the union to have them sent within a reasonable period of time prior to the election. In the present situation, a request for a mailing to be made approximately one month prior to nominations would appear to be reasonable. Failure or refusal by the union to honor a legitimate mailing request is a continuing violation of Title IV which might, under certain circumstances, affect the outcome of the election.

While this opinion of the Department is not binding, it is an opinion entitled to consideration by this Court and is not to be lightly disregarded.

Moreover, this opinion of the Department seems to be in clear accord with Congress' intent of "insur[ing] union democracy" in its enactment of 29 U.S.C. Sec. 481. Professor Clyde Summers who authored a "Bill of Rights for Union Members" which formed the basis of the statute in question, has stated that "[t]he declared and unquestioned purpose of Congress was to ensure fair and democratic elections. Congress recognized that one of the major obstacles to meaningful elections was the inherent advantage of incumbents and it sought to curb the advantage." Summers, Democracy In A One-Party State: Perspectives From Landrum-Griffin, 43 Md.L.Rev. 93, 117-118 (1984). When the union bureaucracy has exclusive control of the union membership lists, with addresses, as in this case, and that bureaucracy has continuous contact with the union membership and particularly the local union officers, the advantages of incumbency over any attempt of an insurgent to promote his candidacy before or after the quadrennial nominating convention of the union are obvious. By requiring unions to comply with all reasonable requests of candidates for access to the union lists these advantages of incumbency are reasonably moderated. And it was to provide that very moderation of the advantages of incumbency which was the intention of the Act.

There does not seem to be any contention that the request of the plaintiff herein is unreasonable. Nor do we understand the union to argue that plaintiff's request is unreasonable. Its position is that the union by-laws provide that "[t]he right to distribution of [campaign] literature only commences after the nomination procedure is complete." Whether intended or not, the manifest result of this is to delay the insurgent candidate in beginning his campaign and to reduce the time within which he can make his appeal to the voters. The incumbents, however, have had four years in which they have enjoyed the exclusive right to the voter lists and addresses and to cultivate their relations with the local union officers who would be expected to have the greatest influence with the rank and file. During all this time, too, the incumbents had had control over the union press and its newsletter to the members. The advantages of the union by-law to the incumbent cannot be questioned. However, the union justifies its by-law as a reasonable method of satisfying the Act...