Usery v. District 22, United Mine Workers of America, Nos. 75-1792

• Decision Date: 01 November 1976
• Docket Number: Nos. 75-1792
• Parties: 93 L.R.R.M. (BNA) 2648, 79 Lab.Cas. P 11,715 William J. USERY, Jr., Secretary of Labor, Plaintiff-Appellee, Cross-Appellant, v. DISTRICT 22, UNITED MINE WORKERS OF AMERICA, Defendant-Appellant, Cross-Appellee, and International Union, United Mine Workers of America, Intervenor-Appellant, Cross-Appellee. to 75-1794.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 744

543 F.2d 744

93 L.R.R.M. (BNA) 2648, 79 Lab.Cas. P 11,715

William J. USERY, Jr., Secretary of Labor, Plaintiff-Appellee, Cross-Appellant, v. DISTRICT 22, UNITED MINE WORKERS OF AMERICA, Defendant-Appellant, Cross-Appellee, and International Union, United Mine Workers of America,

Intervenor-Appellant, Cross-Appellee.

Nos. 75-1792 to 75-1794.

United States Court of Appeals, Tenth Circuit.

Argued and Submitted Sept. 20, 1976.

Decided Nov. 1, 1976.

A. Wally Sandack, Salt Lake City, Utah, for appellant District 22, United Mine Workers of America.

Daniel B. Edelman, Washington, D. C. (Harrison Combs and Joseph A. Yablonski, Washington, D. C., Ralph R. Tate, Jr., Salt Lake City, Utah, on the brief), for appellant International Union, United Mine Workers of America.

Paul Blankenstein, Civ. Div., Dept. of Justice, Washington, D. C. (Rex E. Lee, Asst. Atty. Gen., Washington, D. C., Ramon M. Child, U. S. Atty., Salt Lake City, Utah, and William Kanter, Civ. Div., Dept. of Justice, Washington, D. C., on the brief), for appellee Secretary of Labor.

Before HILL, McWILLIAMS and BARRETT, Circuit Judges.

HILL, Circuit Judge.

This action was brought by the Secretary of Labor under Title IV of the Labor-Management Reporting and Disclosure Act (LMRDA), 29 U.S.C. § 481 et seq., against District 22 of the United Mine Workers of America (UMWA). The International Union intervened as a defendant. The Secretary sought a judgment declaring void the December 11, 1973, District 22 election of officers and ordering new elections under the Secretary's supervision for all offices filled in that election. The district court ordered a new election for one of the seven offices challenged. The Union appeals the judgment as to the new election ordered, and the Secretary appeals from the court's failure to order new elections for the other six offices.

The action was prompted by the complaint of union member Frank Roybal who sought to be a candidate for International Board Member ¹ from District 22. Roybal was nominated for the office by three local unions. He was denied a place on the ballot because of the District's requirement that a candidate for district office be nominated by five local unions. Article XI, Section 9 of the District constitution provides:

No person shall . . . be a candidate for President, Secretary-Treasurer or International Board Member who has not been nominated by five or more Local Unions. In the case of candidates for the position of District Board Member or National Policy Committee Members, nominations by three Local Unions from their respective Sub-Districts shall be sufficient.

The position of International board member was won by Frank Stevenson, the incumbent president and secretary-treasurer of District 22. He ran unopposed after receiving nominations from 11 local unions.

Roybal exhausted his internal union remedies pursuant to 29 U.S.C. § 482 before filing his complaint with the Secretary. His complaint to the Union was directed specifically to his candidacy and the requirement of nominations from five local unions. The Secretary's action, however, sought new elections for all three district offices subject to the five nomination requirement and for the four sub-district offices subject to the three nomination requirement. The Secretary alleged the nomination procedures violated 29 U.S.C. § 481(e) which 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 . . . reasonable qualifications uniformly imposed) . . . .

Specifically, the Secretary contended the Union's requirements did not provide a "reasonable opportunity" for union members to nominate candidates of their choice or to be candidates for office.

District 22 of the UMWA consists of 16 local unions located in Wyoming, Utah, and Arizona. The four locals in Wyoming compose Sub-District 1. The remaining 12 locals compose Sub-District 2. Thus, to be a candidate for district office in the 1973 election required nominations from five of the 16 local unions. Candidacy in Sub-District 1 required nominations from three of four locals; in Sub-District 2 it required nominations from three of 12 locals. A local could nominate only one candidate for each office.

The local unions within District 22 vary greatly in size the largest having 731 eligible voters in 1973, the smallest having only 29. It was possible for a candidate to be nominated by the five smallest locals representing approximately five percent of total district membership, while another candidate could obtain nominations from the four largest locals representing 58 percent of the membership and not qualify for a place on the ballot. In this election the three locals nominating Roybal represented 38 percent of voting membership and the eleven nominating Stevenson represented 48 percent. Union records show that other members were denied the opportunity to be candidates for various offices, ² but only Roybal exhausted internal union remedies.

The history of this nominating procedure demonstrates a tendency toward one-candidate elections. Since records were first kept in 1957, the average number of candidates for each office in District 22 has been 1.75. Since 1957 no election for International board member has been contested. Since 1965 only two of six district-wide offices have had contested elections. In the 1973 election only one of seven offices had opposing candidates. Over the years the requirements for nomination have become more stringent as the number of locals has decreased from 27 in 1962 to 16 in 1973.

Based on this evidence the district court held the Union's requirement of nominations by five local unions did not provide a "reasonable opportunity" for nomination of candidates for union office. The court noted: "A candidate seeking the nominations from five locals might well be put to the cost of traveling in three states with no assurance of ever being nominated." The court found an undetermined number of persons may have been discouraged from running for office because of the five nomination barrier. However, a new election was ordered only for the office sought by Roybal. The court's opinion did not discuss the Secretary's request for new elections for the district offices of president and secretary-treasurer. The court held the Secretary could not challenge the elections for sub-district offices requiring three nominations because no union member had exhausted union remedies concerning that requirement. A rerun election for International board member was held under the Secretary's supervision in January 1976 and Roybal won.

The first question is whether the district court erred in finding the five nomination requirement violated 29 U.S.C. § 481(e) and in ordering a new election for International board member. The Union contends the winner of the first election should be reinstated. The parties agree there is no authority directly in point. No previous case has voided a union election for failing to provide a "reasonable opportunity" for the nomination of candidates. The district court relied on cases determining the reasonableness of qualifications for office under § 481(e) and on political election cases. The Union offers little argument that its rule is reasonable; its brief consists primarily of arguments distinguishing the authority relied upon by the district court.

The Union points out that, contrary to the "qualification" cases, this rule does not categorically exclude a large percentage of union members from running for office. E. g., Wirtz v. Hotel, Motel & Club Employees, Local 6,391 U.S. 492, 88 S.Ct. 1743, 20 L.Ed.2d 763 (1968) (eligibility for major office required previous holding of elective office 93% of members disqualified); Wirtz v. Local 153, Glass Bottle Blowers Association, 405 F.2d 176 (3d Cir. 1968) (eligibility for office required attendance of 75% of meetings for previous two years 97% disqualified). The Union contends its rule contains no similar vice because it disqualifies no one; it merely requires a preliminary showing of electoral support to earn a place on the ballot. We believe a preliminary support rule is equally egregious when the showing required is excessive. Such a rule may exclude an undetermined number of otherwise qualified candidates for reasons unrelated to their ability to fulfill the duties of the office.

That preliminary support requirements may deny a reasonable opportunity to be a candidate is illustrated by Storer v. Brown, 415 U.S. 724, 94 S.Ct. 1274, 39 L.Ed.2d 714 (1974), and Williams v. Rhodes, 393 U.S. 23, 89 S.Ct. 5, 21 L.Ed.2d 24 (1968). Those cases involved constitutional challenges to state laws requiring preliminary support showings by candidates seeking to appear on political election ballots. The Union argues they are inapt here because the constitutional standards are stricter than the statutory rule of the LMRDA. We believe the district court correctly determined that these cases provide "an inexact but helpful analogy."

The Supreme Court noted in Wirtz v. Local 153, GBBA, 389 U.S. 463, 88 S.Ct. 643, 19 L.Ed.2d 705 (1968), that the purpose of Title IV of the LMRDA is to insure free and democratic elections. In Wirtz v. Hotel, Motel & Club Employees Union, Local 6, supra 391 U.S. at 504, 88 S.Ct. at 1750, the Court stated, "Congress' model of democratic elections was political elections in this country . . . ." The "reasonable opportunity" standard of 29 U.S.C. § 481(e) is not greatly different from the standard applied in Williams and Storer where the Court indicated "reasonable requirements for ballot position" would be acceptable. 415 U.S. at 719, 94 S.Ct. 1274; 393 U.S. at 32, 89 S.Ct. 5. Storer recognizes that the reasonableness of a preliminary support requirement is a "matter of degree" and requires "hard judgments" on the facts of...