Herman v. Springfield, Mass

• Court: Court of Appeals for the First Circuit
• Decided: January 6, 2000
• Docket: 99-1483
• Status: Published

Opinion

USCA1 Opinion

                 United States Court of Appeals

                     For the First Circuit


No. 99-1483



              ALEXIS M. HERMAN, SECRETARY OF LABOR,

                UNITED STATES DEPARTMENT OF LABOR,



                      Plaintiff, Appellant,



                                v.



            SPRINGFIELD MASSACHUSETTS AREA, LOCAL 497,

             AMERICAN POSTAL WORKERS UNION, AFL-CIO,



                       Defendant, Appellee.


APPEAL FROM THE UNITED STATES DISTRICT COURT



                FOR THE DISTRICT OF MASSACHUSETTS



       [Hon. Frank H. Freedman, Senior U.S. District Judge]


Before



                      Selya, Circuit Judge,

                                

                 Coffin, Senior Circuit Judge,

                                

                   and Boudin, Circuit Judge.


Nathaniel I. Spiller, Deputy Associate Solicitor, Department

of Labor, with whom Henry L. Solano, Solicitor of Labor, Allen H.

Feldman, Associate Solicitor for Special Appellate and Supreme

Court Litigation, and Mark S. Flynn, Senior Appellate Attorney,

were on brief for appellant.

     Craig D. Robinson with whom Brousseau & Robinson was on brief

for appellee.

     Leon Dayan with whom Laurence Gold and Bredhoff & Kaiser,

P.L.L.C. were on brief for United Steelworkers of America, Amicus

Curiae.


January 6, 2000


BOUDIN, Circuit Judge.  This appeal involves the validity

of an eligibility requirement imposed by a union on candidates for

officer positions.  The union, which is a Springfield,

Massachusetts local of the American Postal Workers Union, holds

officer elections once every three years.  Under its constitution,

a candidate for office must have been a member of the union for at

least one year (two, if running for president) and--this is the

disputed provision--must have attended at least three of the

local's regular monthly meetings in the twelve month period before

the meeting at which nominations are made.

  The union holds meetings nine months of the year (all

months but July, August and December), so to be eligible a

candidate must attend one third of the nine scheduled meetings.  A

member is also credited with attending if he does not attend but

has an excused absence justified by job requirements or "other

compelling reasons"; excuses can be granted by vote of the

membership at the missed meeting (if the excuse request is

submitted in advance) or at the next meeting.  Ultimately, the

question for us is whether the three-meetings requirement conforms

to the statutory requirement that 

    every [union] member in good standing shall be

  eligible to be a candidate and to hold office

  (subject to . . . reasonable qualifications

  uniformly imposed).



Labor-Management Reporting and Disclosure Act of 1959 ("LMRDA"), 29

U.S.C.  481(e).

  In March 1997, union members nominated candidates for

office, but three nominees were declared ineligible because they

had failed to satisfy the three-meetings requirement.  After the

nomination meeting, a union member exhausted internal remedies and

then, following the election in May 1997, filed a protest with the

Secretary of Labor challenging the election on the ground, inter

alia, that the three-meetings requirement was invalid.  The

Secretary thereafter brought suit against the union in the district

court under the LMRDA, 29 U.S.C.  482(b), which in substance

empowers the court to provide equitable relief for violations of

section 481, including its eligibility provision quoted above. 

Alleging such a violation, the Secretary sought to set aside the

election.

  On cross motions for summary judgment, the district court 

ruled in favor of the union after concluding that the three-

meetings requirement is a "reasonable qualification" under section

481(e).  The Secretary has appealed, stressing that the requirement

disqualified over 96 percent of the union membership.  The union,

supported by a very helpful amicus brief from another union (the

United Steelworkers), supports the district court's decision.  The

appeal turns on issues of law which we consider de novo.  Philip

Morris Inc. v. Harshbarger, 122 F.3d 58, 62 (1st Cir. 1997).

    In enacting the LMRDA, Congress was concerned with abuses

in the labor movement, including not only corruption but attempts

by incumbent union leadership to entrench itself further.  Local

3489, United Steelworkers v. Usery, 429 U.S. 305, 309-10 (1977)

("Steelworkers"); Wirtz v. Hotel, Motel & Club Employees Union,

Local 6, 391 U.S. 492, 497-98 (1968).  Section 481(e) aimed to

improve union democracy by making it easier for rank and file

members to participate in union governance.  Hotel, Motel & Club

Employees Union, 391 U.S. at 497-98.  For that reason, the

Secretary and the courts have approached skeptically qualification

requirements of the kind at issue in this case.  Those that impose

an appreciable burden on members--to attend many meetings or to

decide to do so long in advance of election--usually fail.

  Still, the courts have purported to make "reasonableness"

a case-specific issue, turning on all of the circumstances, e.g.,

Steelworkers, 429 U.S. at 313; Local 1402, Int'l Longshoremen's

Ass'n, 617 F.2d at 98-99; and the Secretary says that attendance

requirements can serve legitimate ends in ensuring that candidates

are educated about union affairs.  29 C.F.R.  452.38(a) (1999). 

Union election by-laws have sometimes been crudely exclusionary,

e.g., Hotel, Motel & Club Employees Union, 391 U.S. at 500-01, and

it is easy to be cynical about motive; but there is no per se ban

on all meeting-attendance requirements.

  Instead, the courts have concerned themselves primarily

with evaluating the extent of the burden imposed by the

requirements at issue and their impact on candidacies.  Burden and

impact are not quite the same thing, since a burdensome requirement

might still be met by many union members (e.g., if it were common

practice for most members to attend most meetings) and a slight

condition (e.g., attending the nomination meeting) might in

practice be met by very few union members.  Reversing the district

court's approach, let us begin with burden and return then to

impact, which presents the more difficult issue in this case.

  To make a refined judgment of burden, one would need a

great deal of specific information about actual practice in each

case.  For example, one would need to know just how inconvenient is

attendance for members of a particular union (which depends on the

location(s) of meetings, the hour and length of the meetings, the

distance from home or job of the member, and so on), and whether

there are other incentives for members to attend meetings, as well

as the nature and operation of any excuse regime.  But it is rare

that either side offers such detailed information, let alone

reliable evidence, which might well require surveys and statistics.

  In the absence of such evidence, courts tend to make what

they think are "common sense" judgments based on how many meetings

members must attend, over what period of time, whether excuses are

allowed, and how long in advance a candidate would have to decide

to run in order to fulfil the conditions.  E.g., Steelworkers, 429

U.S. at 313; Local 1402, Int'l Longshoremen's Ass'n, 617 F.2d at

98-99.  As the numbers of excluded members go up, so does the

courts' readiness to find that the burden outweighs the supposed

(and inherently speculative) benefits of the requirement in

educating the candidate or demonstrating commitment.  See cases

cited at note 1, above.

  By the standards of prior decisions, the qualification

requirements in this case are certainly at the less burdensome end

of the spectrum.  The candidate need attend only three of the nine

meetings in the year prior to the nomination meeting; the decision

to run could be made as late as four months before the nomination

meeting; and an excuse regime exists that would allow credit for a

meeting not actually attended on a showing of job requirements or

other compelling reasons.  Most of the leading cases striking down

requirements have dealt with ones at least marginally more

demanding.

  Of course, if one believed that meeting attendance

requirements serve no purpose but to ward off challenges to

incumbent union leaders, any burden at all might suffice to condemn

them.  But the amicus offers some commentary to the contrary--

principally a statement by former Labor Secretary Ray Marshall, an

expert in labor matters--and, more important, the Secretary does

not assert that all meeting attendance requirements are a useless

sham or point us to any evidence to support such a position.  If

and when the Secretary does so, it will be time enough to revisit

that basis for banning the requirements.

  Instead, the Secretary's attack on the district court

decision rests almost entirely on the alleged impact of the

attendance requirements in this case, on her reading of case law,

and on the deference she says is due to her judgment.  The main

datum relied on by the Secretary is the fact, conceded by the

union, that over 96 percent of the members of the local in this

case did not in practice attend enough meetings to qualify to run

for office.  Put differently, when the nomination meeting arrived,

less than 4 percent of the local's membership could run for office.

  There is nothing crazy about the view professed in the

Secretary's brief that any requirement disqualifying so many

potential candidates should be automatically deemed unreasonable. 

Such a rule would be easily administered (once one chooses the

fatal percentage); it would lessen the need for speculative

judgments about actual burden; and it would enlarge "union

democracy" by providing a larger body of possible candidates

(albeit while contracting the unions' ability to manage their own

affairs).  But to make a percentage test conclusive is not the most

natural reading of the statute or the governing precedents, and

there is doubt about the Secretary's own position--outside of this

litigation.

  The statutory "reasonableness" test in section 481(e)

does not have much inherent content but, as already noted, the main

thrust of the decisions implementing it is to consider election-

qualification requirements on a case by case basis, taking account

of all relevant factors and not just one.  True, the Secretary's

brief reads Steelworkers as making conclusive the percentage of

members excluded; but while the dissenting opinion in that case so

accused the majority, Steelworkers, 429 U.S. at 315 (Powell, J.,

dissenting), the majority avoided any such explicit holding, id. at

310-13, and the facts of the case involved a requirement--

attending one half the monthly meetings in the prior three years--

that was far more burdensome than the requirement at issue in this

case.    

  Further, looking at "impact" solely from the nomination

day perspective is misleading.  Since most union members do not

intend to run for office in a given election, most are not going to

trouble to meet any precondition that requires them to do anything

different from what they ordinarily do--no matter how slight the

burden or how reasonable a condition for those who do wish to be

candidates.  Suppose that the union required all candidates to send

in a postcard 10 days before the election or to collect three

signatures prior to the election; probably, at least 96 percent of

the membership would on the day of the election still be

disqualified from running for office.

  One circuit court decision does--to some extent--support

the view taken in the Secretary's brief.  In Doyle v. Brock, 821

F.2d 778 (D.C. Cir. 1987), a divided panel overturned the

Secretary's refusal to sue to enjoin a meeting attendance

requirement obligating a candidate to attend at least one half of

the monthly meetings in the prior year.  That requirement (viewed

ex post) also disqualified a high percentage of candidates. 

Pointing to Steelworkers' emphasis on such percentages, Judge

Edwards (joined by a visiting judge) held that the Secretary had

not adequately explained his refusal to challenge the union. 

Doyle, 821 F.2d at 785-86.

  However, Doyle was rendered over a dissent by Judge

Silberman, id. at 787-89, and over strenuous arguments from the

Secretary that Steelworkers did not create a per se rule, see id.

at 784.  Further, the facts in Doyle addressed a requirement

somewhat more burdensome than the one before us, compelling

attendance at six meetings (instead of three) and a head start of

about six months (instead of four).  Finally, if Steelworkers is

taken to impose a rigid, one-factor test based on percentage, much

of the opinion becomes surplusage, particularly the section in

which the Court approved the Secretary's own flexible, multi-factor

test for reasonableness.  429 U.S. at 311-13.

  This brings us to the Secretary's more interesting

argument, namely, that her present position on what is a reasonable

qualification is entitled to substantial deference from the courts. 

Traditionally, the most deference is due to decisions by agencies

made pursuant to delegated power, cf. Chevron U.S.A., Inc. v.

Natural Resources Defense Council, 467 U.S. 837 (1984), an

authority that the Secretary does not claim here.  But we have

ourselves said that some weight is due even to interpretative rules

that express merely the view on the matter at hand taken by the

agency charged with enforcement.  This deference does not depend

on notions of delegation but on the expertise and comparative

neutrality of the agency involved.

  But there are major difficulties with according such

deference here.  So far as the Secretary's position is based simply

on a reading of Steelworkers, our own competence in parsing that

decision is equal to that of the Secretary.  See Valerio v. Putnam

Assocs. Inc., 173 F.3d 35, 43 n.5 (1st Cir. 1999) (court not bound

by agency's interpretation of judicial precedent); accord Atchison,

Topeka & Santa Fe Ry. Co., 44 F.3d at 443.  Indeed, as Doyle makes

clear, the Secretary previously shared our view of the Steelworkers

decision.  See Doyle, 821 F.2d at 784.

  Further, even in her modified interpretative regulation

adopted after Doyle, the Secretary has taken an ambiguous position. 

The text of the regulation continues to assert that attendance

requirements may be reasonable and that "reasonableness must be

gauged in the light of the circumstances of the particular case,"

including, among other considerations, burden, excuse provisions,

and impact.  29 C.F.R.  452.38(a).  Only in the new "case law"

footnote at the end does the Secretary, citing Doyle, say that the

exclusion of a "large portion of members" alone "may" render an

attendance requirement unreasonable.  Id. at n.25.

  Thus, in her most recent formal statement of position,

the Secretary has sought to have it both ways, supporting the union

position in text but appending a footnote reference to Doyle that

is more of a disclosure than an endorsement.  Certainly the

Secretary's brief in this court is unqualified in supporting some

percentage test as determinative--indeed, the brief scarcely

mentions burden--but courts normally decline to defer to what may

be the ad hoc position of counsel rather than the judgment of the

administrator.  See, e.g., O'Connell v. Shalala, 79 F.3d 170, 179

(1st Cir. 1996); Massachusetts v. Blackstone Valley Elec. Co., 67

F.3d 981, 991 (1st Cir. 1995).

  We might well decide this case differently if the

Secretary adopted an interpretative regulation setting forth a

conclusive percentage test.  This is not the most natural or

traditional reading of the statute, but there are policy arguments-

-a few already mentioned--for this result, assuming (as we do) that

the statute affords some latitude for the expert administrator to

devise an enforceable regime.  And while Steelworkers does not

compel such a percentage test, arguably Steelworkers would permit

it, if based on the Secretary's independent judgment.

  Such a flat percentage test would largely eliminate

meeting attendance requirements and repudiate prior positions of

the Secretary, and might therefore require more explanation than is

normally required for a regulation, but agencies are entitled to

change their views.  Strickland v. Commissioner, Maine Dep't of

Human Servs., 48 F.3d 12, 20 (1st Cir.), cert. denied, 516 U.S. 850

(1995); Massachusetts v. Lyng, 893 F.2d 424, 431 (1st Cir. 1990). 

Despite the able arguments of the amicus union, we do not attach

much weight to the prevalence of such meeting attendance

requirements in the past--a past not without abuses--or to

Congress's failure to ban them outright, which falls far short of

implicit approval.

  In sum, if the Secretary has the courage of her counsel's

convictions, she can revise her interpretative regulation, adopt a

flat percentage test, and eventually bring an enforcement action

outside the D.C. Circuit to test her position.  There are

apparently plenty of candidates, including the very unions involved

in this case.  Obviously, we do not commit ourselves as to the

outcome but, with a clear-cut regulation adopted by the Secretary,

in place of the current straddle, this would at least be a close

contest.

  Affirmed.