to weigh the wisdom of regulations. Day-Brite Lighting, Inc. v. Missouri, 342 U.S. 421, 423, 427, 96 L. Ed. 469, 72 S. Ct. 405 (1952); Ferguson v. Skrupa, 372 U.S. 726, 729-32, 83 S. Ct. 1028, 10 L. Ed. 2d 93 (1963).
It is then argued that such a good reason is to encourage participation in union affairs and attendance at meetings in order to become familiar with the workings of the organization before undertaking to serve as a union officer.
Another analogous situation in which courts pass on "reasonableness" is in Antitrust cases. Here, however, the insertion of that standard into the legislation as enacted by Congress is a pure judicial creation devised first by Mr. Chief Justice White in Standard Oil Co. of New Jersey v. U.S., 221 U.S. 1, 60, 63-67, 55 L. Ed. 619, 31 S. Ct. 502 (1911).
More to the point is the analogy to the function of the Interstate Commerce Commission, and similar regulatory agencies, in establishing "just and reasonable" rates. 49 U.S.C. § 15. In other words, Congress itself enacts a non-specific standard, the application of which to specific situations is entrusted to the judicial process of inclusion and exclusion.
The Court therefore in a particular case must not only consider the existence vel non of a scintilla of rational support for the rule put forth, but must (by a process similar to that prescribed in the Universal Camera case), take into consideration the entire situation presented by the record, and give due weight to every aspect of the facts established. In other words, the Court must also inquire whether the legitimate purpose sought to be achieved could be attained in a manner less destructive of other legally protected interests. Schneider v. Irvington, 308 U.S. 147, 162, 84 L. Ed. 155, 60 S. Ct. 146 (1939); Henry v. Mississippi, 379 U.S. 443, 447-49, 13 L. Ed. 2d 408, 85 S. Ct. 564 (1965). We note that there may be a fairly extensive "zone of reasonableness" and that comparison with comparable practices may be a standard for determining reasonableness. Georgia v. P.R.R. Co., 324 U.S. 439, 460-61, 89 L. Ed. 1051, 65 S. Ct. 716 (1945); Youngstown Sheet & Tube Co. v. U.S., 295 U.S. 476, 480, 79 L. Ed. 1553, 55 S. Ct. 822 (1935).
Moreover, the determination must seek to give effect to the policies of the Act. Reasonableness is not to be assessed in vacuo, but in the light of the purposes which the Congress sought to achieve and the evils which it sought to eliminate. Union democracy, effective self-government, abolition of oligarchical cliques and self-serving union officers were in the forefront of Congressional thinking. Section 401 itself seeks to open the path of eligibility to office to all union members in good standing, except where restrictions of reasonable character, and uniformly imposed, may be appropriate. Mamula v. United Steelworkers of America, 304 F.2d 108, 110-111 (1962); 86th Cong. 1st Sess. Sen. Rep. No. 187, p. 20, appearing at p. 16 of Vol. 1 of Legislative History of the Act, published by the NLRB, Washington, 1959. It must also be remembered that restrictions on eligibility also constitute a corresponding restriction on the right of choice by other members. Fogle v. United Steelworkers of America, 230 F. Supp. 797, 798 (W.D. Pa. 1964).
Plaintiff argues that the 75% requirement has no rational relation to any legitimate labor union objective. This contention in its broad form is obviously untenable, as it is a very proper objective to encourage attendance at union meetings, and to require office holders to have acquired a sufficient familiarity with union affairs to be properly qualified to discharge their trusts effectively and in keeping with the sentiments of the membership. Past conduct is often a proper test of future fitness. [See cases collected in Dumbauld, The Constitution of the United States (1964) 199-200.
Plaintiff stands on more solid ground in arguing that the requirement goes too far. This contention is three-pronged: (1) 75% is too high a percentage; (2) the provision for excuses is too rigid, being limited only to work on the job during meetings; (3) the effect of the rule as applied here results in "only a handful" of eligibles (2.2% of membership qualified).
To select a particular percentage of attendance as being reasonable and hence permissible is akin to the task of determining what percentage of market control is necessary to establish the existence of a monopoly. On this issue a revered Judge, Learned Hand, once said "it is doubtful whether sixty or sixty-four percent would be enough; and certainly thirty-three percent is not." Ninety was enough, however. U.S. v. Aluminum Co. of America, 148 F.2d 416, 424 (C.C.A. 2, 1945). We conclude that 75 is too high a percentage when combined with the strict rule regarding excuses.
To be reasonable a rule must give appropriate recognition to human nature and the normal needs of a workman in his everyday life. Union members can not be expected to devote undeviating attention to union business, to the neglect of their health, family obligations, vacations and the usual pleasures and vicissitudes of life. They do not form a military community or a religious order, separated from the world at large.
A rule which limits the eligible group to 2.2% of the membership seems to be too harsh. The only judicial precedent cited by counsel is John C. Martin v. International Brotherhood of Boilermakers, W.D. Pa. 245 F. Supp. 375, where on June 26, 1963, my esteemed colleague Judge Willson upheld the reasonableness of the eligibility requirements of that union's constitution. However, the requirement there was only one meeting out of each quarter of the calendar year and the quarter immediately preceding nominations. Moreover, the provision for excuses was liberal: it recognized "personal illness, International or District or Local Lodge duties, regular employment or some other unavoidable situation". There 14 members out of a total of 175 were found to be qualified (a figure in excess of 10% of the membership).
Under these circumstances, Judge Willson said (and I agree):
"Plaintiff, however, seems to make a blank charge that the amendment requiring the attendance at one meeting during each of the five quarters to become eligible to hold office is, per se, an unreasonable regulation. However, this contention, if seriously made, is rejected because it seems very clear to the court that the regulation is reasonable. Certainly there is nothing illegal about it, not [sic] does it appear burdensome. The rule is almost the minimum attendance requirement. It simply requires that a member attend one meeting in each three month period. But, it is to be noticed that he may be excused from that by illness or if his work interferes. The language which justifies no attendance is broad. It says:
'and (d) have attended at least one (1) meeting out of each quarter of the calendar year and the quarter immediately preceding nominations for office unless prevented by personal illness, International or District or Local Lodge duties, regular employment or some other unavoidable situation.' Article XXVIII, p. 111)