Usery v. Local Div. 1205, Amalgamated Transit Union

• Decision Date: 17 November 1976
• Docket Number: No. 76-1235,76-1235
• Citation: 545 F.2d 1300
• Court: U.S. Court of Appeals — First Circuit
• Parties: 93 L.R.R.M. (BNA) 2870, 79 Lab.Cas. P 11,740 William J. USERY, Secretary of Labor, Plaintiff, Appellant, v. LOCAL DIVISION 1205, AMALGAMATED TRANSIT UNION, Defendant, Appellee.

Page 1300

545 F.2d 1300

93 L.R.R.M. (BNA) 2870, 79 Lab.Cas. P 11,740

William J. USERY, Secretary of Labor, Plaintiff, Appellant, v. LOCAL DIVISION 1205, AMALGAMATED TRANSIT UNION, Defendant, Appellee.

No. 76-1235.

United States Court of Appeals First Circuit.

Argued Sept. 10, 1976.

Decided Nov. 17, 1976.

Eloise E. Davies, Atty., Appellate Section, Civ. Div., Dept. of Justice, Washington, D.C., with whom Rex E. Lee, Asst. Atty. Gen., Washington, D.C., James N. Gabriel, U.S. Atty., Boston, Mass., William J. Kilberg, Sol. of Labor, Beate Bloch, Associate Sol., Jerome J. Davis, Atty., Dept. of Labor, and Robert E. Kopp, Atty., Appellate Section, Civ. Div., Dept. of Justice, Washington, D.C., were on brief, for appellant.

Lawrence E. Katz, Cambridge, Mass., with whom Arthur J. Flamm, and Flamm, Mason, Paven & Feinberg, Boston, Mass., were on brief, for appellee.

Before CLARK, Associate Justice, U.S. Supreme Court (Ret.), ^* McENTEE and CAMPBELL, Circuit Judges.

LEVIN H. CAMPBELL, Circuit Judge.

This suit to set aside an election of officers held in June of 1973 by Local 1205 of the Amalgamated Transit Union was brought by the Secretary of Labor under section 402(b) of the Labor-Management Reporting and Disclosure Act of 1959 (LMRDA), 29 U.S.C. § 482(b). ¹ The Secretary charges the Local with violations of section 401(e) of the LMRDA, first by imposing "an unreasonable meeting attendance qualification for candidacy", and second by unreasonably refusing to accept certain nominations.

After the Secretary's complaint was filed in the district court, both parties conducted discovery, and Local 1205 moved for summary judgment, filing an affidavit and brief. Although the Secretary had ample time to do so, he apparently neglected to file a brief in advance of the hearing on the motion; and after argument the court directed entry of judgment for the Local.

The Secretary's failure to file a timely brief in the district court cannot be condoned. The district court was entitled to the cooperation of both parties, and especially of the Secretary, who instituted the suit. The court was under no obligation to perform unaided legal research, nor to accept a brief out of time.

The Local, however, has not asked us to affirm on the ground of the Secretary's non-cooperation with the district court, nor did the court itself indicate this factor as a reason for its judgment; both sides have briefed and argued the substantive legal issues, and it would now seem to be in the interest of the Local and its members for us to decide these matters even as it turns out adversely. We proceed, therefore, to the merits.

The undisputed facts relating to the two claimed violations of the LMRDA are as follows.

1. Disqualification of Klayton for non-attendance.

In May, 1973, Local 1205 had 338 members made up of 268 active and 70 retired employees of the Greyhound Lines (Eastern Division) and the Bangor and Aroostook Railroad. Most active members worked out of Boston (212). Others held positions based in Bangor (17), Portland (6), Providence (15), Hartford (18) and New Haven (2). Meetings were held monthly in both Boston and Portland; members located elsewhere could bus to the meetings if they desired using free Greyhound pass privileges.

Local 1205 held regular biennial elections. In September, 1971, the Local adopted a bylaw requiring that candidates for office must have attended not less than six regular meetings each year during the twenty-four months prior to an election, such a rule being optional with each local under the International's constitution. The bylaw included a liberal excuse provision by which a member, absent for a legitimate reason, could obtain attendance credit simply by sending a postcard to the recording secretary within ten days after the meeting.

In December, 1972, Local 1205 conducted a special election for financial secretary and member Ronald Klayton was elected. Klayton had not attended six meetings a year for the preceding twenty-four months, but being the sole nominee was allowed to stand and serve. Six months later, however, when the Local conducted its regular elections, Klayton was not permitted to run for the office because of the attendance requirement. Although he had attended ten meetings in the 1972-73 year, he had gone to only five meetings in 1971-72. ²

2. Refusal of Willie Higgins' nomination.

Under the Local's bylaws, nominations of officers take place at the regular May meeting. Nominations may be made by mail if they are received by the recording secretary on or before the day of the nominating meeting. In May, 1973, Willie Higgins and two other members of the Local attended the meeting in Boston with the intention of nominating themselves for office. When the meeting was cancelled for lack of a quorum, Higgins and his companions vainly attempted to submit their nominations in writing to the recording secretary. By letter, Higgins protested to the Local the rejection of these nominations, but his protest was unavailing. He thereupon appealed to the International prior to the election, but the appeal was denied. The election took place in June, 1973, and four days later Higgins challenged it under a provision in the constitution of the International allowing voting members to challenge the conduct or results of an election within 10 days afterwards. Higgins maintained that the refusal to accept the proffered written nominations had been improper. The executive board of the Local denied his appeal as did the International vice president. The general executive board of the International informed Higgins that it would hear his appeal; however, the record is silent on whether or not the issue was ever taken up by that body. On October 2, 1973, Higgins filed a complaint with the Secretary of Labor challenging the June, 1973, election. That complaint led to this proceeding.

I

We first consider the bylaw which caused Klayton to be disqualified as a candidate for office for failure to attend six meetings each year during the twenty-four month period prior to elections. Section 401(e) of the LMRDA provides, in part, that in elections subject to the Act,

". . . (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) and shall have the right to vote for or otherwise support the candidate or candidates of his choice . . .."

The question here is thus whether the candidacy restriction was a "reasonable qualification". The legislative history and wording of section 401(e) reveal a congressional purpose to ensure open and democratic union elections and to limit candidacy restrictions to those that do not invite abuse, especially by entrenched incumbents. See Wirtz v. Hotel Employees, Local 6, 391 U.S. 492, 499, 88 S.Ct. 1743, 20 L.Ed.2d 763 (1968); Wirtz v. Local 153, Glass Bottle Blowers, 389 U.S. 463, 470-71, 88 S.Ct. 643, 19 L.Ed.2d 705 (1968); Aaron, The Labor-Management Reporting and Disclosure Act of 1959, 73 Harv.L.Rev. 851 (1960). With respect to attendance, a requirement that candidates must have attended 75 percent of all meetings within the preceding two years has been held invalid, Wirtz v. Local 153, Glass Bottle Blowers, 405 F.2d 176, 178 (3d Cir.), on remand from 389 U.S. 463, 88 S.Ct. 643, 19 L.Ed.2d 705 (1968). But lesser requirements covering, for example, 25 percent of meetings in one year, have been upheld, e.g., Shultz v. Local 420, Aluminum Workers, 74 L.R.R.M. 2281 (N.D.N.Y.1970). See Martin v. Boilermakers, Local 636, 245 F.Supp. 375 (W.D.Pa.1963) (one meeting per quarter for each of five quarters). There is presently a split between circuits over a requirement of attendance at 50 percent of meetings over a thirty-six month period. Brennan v. Local 5724, Steelworkers, 489 F.2d 884, 888 (6th Cir. 1973) (upholding such a requirement as a "reasonable qualification"); Brennan v. Local 3489, Steelworkers, 520 F.2d 516, 520 (7th Cir. 1975), cert. granted, 424 U.S. 907, 96 S.Ct. 1100, 47 L.Ed.2d 311 (1976) (disapproving such a requirement). See also Brennan v. Local 639, Teamsters, 161 U.S.App.D.C. 173, 494 F.2d 1092, 1098-99 (1974).

The Secretary makes much of the fact that the 50 percent a year, twenty-four month requirement here in issue, disqualifies almost 94 percent of the membership from running, and he compares this figure with the 93 percent disqualified under a different candidacy limitation struck down in Wirtz v. Hotel Employees, Local 6, 391 U.S. 492, 88 S.Ct. 1743, 20 L.Ed.2d 763 (1968). The Local responds that the present requirement is ameliorated by the liberal excuse provision and free bus privileges and points out that Klayton, the candidate disqualified by the rule, was himself an incumbent, albeit a very recent, and certainly not an "entrenched" one. Apathy rather than the stringency of the requirement is said to be the reason for the high percentage of disqualification. See Brennan v. Local 5724, supra, 489 F.2d at 888-89.

We do not give conclusive weight here to the fact that nearly 94 percent of the membership did not meet the requirement although this is certainly of importance; the question is not only how many were disqualified but how burdensome was the qualification. We do conclude, however, that a bylaw which has the effect of requiring attendance for a period that must begin no later than eighteen months before a biennial election cannot be squared with Congress' aim to open up union elections and make them democratic thereby combating the likelihood of an entrenched leadership. See Wirtz v. Local 153, Glass Bottle Blowers, supra, 405 F.2d at 176 (invalidating a 75 percent requirement that had much the same practical effect); Brennan v. Local 3489, Steelworkers, supra, 520 F.2d at 520 (invalidating 50 percent, thirty-six month requirement that had same effect). At least, such a...