The opinion of the court was delivered by: BODY
Presently before this Court, on remand from the Court of Appeals, Shultz v. Local 1291, I.L.A., 429 F.2d 592 (3d Cir. 1970), is this action instituted by the Secretary of Labor under Title IV of the Labor-Management Reporting and Disclosure Act, 29 U.S.C. § 481 et seq., to set aside an election in which Abdullah Ahmed Bey, the complaining union member,
was defeated for the presidency of Local 1291, International Longshoremen's Association (I.L.A.), and to require a new election supervised by the Secretary. Initially we note the change in the Office of the Secretary of Labor and on our own motion will order the caption amended to read "James Hodgson, Secretary of Labor" as the complainant here.
The procedural history of this action is quite lengthy, but we will review it now insofar as it is relevant to the matter still before us.
Local 1291's by-laws include the following provision Rule 3(c) (3), which is at issue here:
"In accordance with tradition heretofore observed, the President shall be of the colored race, Vice President, white, Recording Secretary, white, Financial Secretary, colored, Asst. Financial Secretary, white, 4 Business Agents equally proportioned, 3 Trustees (Auditors), 1 white & 2 colored, 2 Sergeants at Arms, 1 colored and 1 white."
Since its inception in 1932, Local 1291 has had approximately a fifty-fifty split in membership between blacks and whites.
Abdullah Ahmed Bey, who claims to be an Arab, was nominated and ran for the presidency of the local union on December 10, 1963. He was defeated. It was apparently assumed that Bey was "colored" as Rule 3(c)(3) was not raised as a bar to Bey's presidential candidacy. Prior to this date, Bey had neither formally complained about Rule 3(c)(3) nor had he attempted to nominate any black for a white designated office, nor any white for a black designated office at the nominations on November 19, 1963. Bey testified that, but for the existence of Rule 3(c)(3), he would have nominated other persons for the office of president and lower positions. N.T. 79-83, 87-89.
It is now undisputed that Bey exhausted his internal union remedies before bringing his complaint to the attention of the Secretary of Labor. Shultz v. Local 1291, I.L.A., 429 F.2d 592 (3d Cir. 1970).
It is no longer disputed that this action is not moot, despite the fact that the remedy sought is a setting aside of the 1963 election and that there have been intervening elections since that time. See Wirtz v. Local 153, Glass Bottle Blowers Ass'n 389 U.S. 463, 19 L. Ed. 2d 705, 88 S. Ct. 643 (1968); Shultz v. Local 1291, I.L.A., 429 F.2d 592 (3d Cir. 1970).
Defense counsel has suggested that this Court lacks jurisdiction of the subject matter because Bey was permitted to run for office and was not himself prejudiced by the application of Rule 3(c)(3). We disagree with this contention. The statute provides that " A member of a labor organization . . . may file a complaint with the Secretary . . . alleging the violation of any provision of Section 481. . . ." 29 U.S.C. § 482(a). There is no limitation on the status of the complainant other than that he be a member of a labor organization. There is no requirement that the complaining union member must have been denied either the right to run for office himself or the right to nominate others for union office. The Supreme Court has on two occasions taken a broad view of Title IV of the Labor-Management Reporting and Disclosure Act: " . . . the Act is not so limited to protecting the right of a union member to run for a particular office in a particular election, for Congress emphatically asserted a vital public interest in assuring free and democratic union elections that transcends the narrower interest of the complaining union member." Wirtz v. Local 153, Glass Bottle Blowers Ass'n., 389 U.S. 463, 475, 19 L. Ed. 2d 705, 88 S. Ct. 643 (1968); Wirtz v. Local 125, Laborers' International Union, 389 U.S. 477, 483, 19 L. Ed. 2d 716, 88 S. Ct. 639 (1968). Accordingly, we hold that the complaint filed by Bey with the Secretary of Labor furnished an adequate basis on which the Secretary could investigate and later bring suit to set aside the 1963 election under 29 U.S.C. § 482(b).
29 U.S.C. § 481(e) provides:
"In any election required by this section which is to be held by secret ballot 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 section 504 of this title and to reasonable qualifications uniformly imposed) and shall have the right to vote for or otherwise support the candidate or candidates of his choice, without being subject to penalty, discipline or improper interference or reprisal of any kind by such organization or any member thereof."
The basic issue in this case, briefly stated, is whether Rule 3(c)(3) is a reasonable qualification on the right of union members in good standing to be candidates in union elections and to hold office. If it is not, and if it may be said that existence of the Rule affected the outcome of the 1963 election, then this Court must void that election. We now hold that Rule 3(c)(3) is an unreasonable qualification on the right of union members to be candidates and to hold office and that the existence of the Rule can be said to have affected the outcome of the 1963 election: accordingly, we will void that election and order a new election under the supervision of the Secretary of Labor.
The language "reasonable qualifications uniformly imposed" should not be given a broad reach. Rather, whether Rule 3(c)(3) is "a ' reasonable qualification ' must be measured in terms of its consistency with the Act's command to unions to conduct 'free and democratic' union elections." Wirtz v. Local 6, Hotel, Motel & Club Employees Union, 391 U.S. 492, 20 L. Ed. 2d 763, 88 S. Ct. 1743 (1968). Since Rule 3(c)(3) deprives fifty percent of the members of Local 1291 from holding each office, there must be a very compelling ...