with the provisions of the LMRDA. 29 U.S.C. § 482(b).
POWA also argues that the meeting attendance rule does not violate the Act. I need not reach the question whether the rule violates the Act on its face, however, because its application in this case is clearly violative of the LMRDA.
POWA apparently seeks to apply an eligibility rule that would effectively close out more than 80% of the otherwise eligible non-officeholders. Moreover, the Union possesses no records of the attendance at its meetings. I find it incredible that POWA seriously contends that it should be allowed to enforce this by-law when it will have to rely on the collective recollection of the current officeholders in order to "reconstruct" the attendance records. One of those charged with this reconstruction, David Breneiser, could not recall the date of a meeting which occurred in November, 1984, barely two months ago, yet he claimed to be able to recall all twenty-four members who attended meetings that took place over one year ago. Breneiser also stated that he was not aware of any mechanism for handling challenges to the prepared list and that he was unsure whether meetings called but cancelled because of a lack of a quorum would be counted toward the eligibility requirement. There are no provisions in the by-laws governing these situations nor is there any provision governing how to calculate the number of meetings one need attend if two-thirds of a year's meetings do not equal an even number (as is the case here).
In Local 3489, United Steelworkers of America v. Usery, 429 U.S. 305, 309, 50 L. Ed. 2d 502, 97 S. Ct. 611 (1977), the Court stated: "whether a particular qualification is reasonable within the meaning of the [the Act] must therefore be measured in terms of its consistency with the Act's commands to unions to conduct 'free and democratic' union elections." (quoting from Wirtz v. Hotel Employees, 391 U.S. 492, 499, 20 L. Ed. 2d 763, 88 S. Ct. 1743 (1968)). The justification proffered by POWA for the eligibility rule falls far short of the justification needed to restrict the exercise of the members' democratic rights as much as the present rule does. POWA merely asserts that the rule is necessary in order to ensure that all candidates for office are familiar with union affairs and its situation. Congress, in enacting the LMRDA has shown a preference that union elections be, as far as is practicable, based on the same foundations as those elections which take place throughout society. The best means for ensuring that only those qualified to hold office are elected is not to place some arbitrary eligibility requirement
on the members which operates to exclude 80% of them from running for office, but rather to provide for the freest elections possible so that the members themselves through the exercise of their rights can decide who is the most qualified.
Conclusions of Law
1. This court has jurisdiction over this case pursuant to 29 U.S.C. § 482(b).
2. The Secretary of Labor in the course of supervising an election, ordered by the court under 29 U.S.C. § 482(c), has the authority to declare void for the purposes of the supervised election, any Union by-law that conflicts with the provisions of Title IV of the LMRDA. 29 U.S.C. § 482(c); Donovan v. Illinois Education Association, 667 F.2d 638, 640 (7th Cir. 1982); Millwrights Local Union 1914 v. Carroll, 654 F.2d 548 (9th Cir. 1981); see also Trbovich v. United Mine Workers, 404 U.S. 528, 537, 30 L. Ed. 2d 686, 92 S. Ct. 630 (1972).
3. The meeting attendance rule in this case is void and invalid as applied by the POWA. Such a by-law, assuming that it may be enforceable in some contexts, clearly cannot be enforced here where the Union has failed to keep adequate records of the attendance at its meetings and has decided to rely on the collective recollection of the present office holders in order to reconstruct the attendance. The method used by the union is inherently suspect and untrustworthy. It contravenes the purposes of Title IV of the LMRDA to allow the incumbent leadership of a union to determine the eligibility of the membership to hold office in a way which is so obviously open to manipulation.
4. The Union shall comply with the December 18, 1984 order of this court, the election shall proceed as ordered.
NOW, February 1, 1985, upon consideration of the petition of the Secretary of Labor for an order compelling compliance with the supervisory instructions of the Secretary of Labor, the response thereto, memoranda of law submitted by the parties, and for the reasons set forth in the accompanying Findings of Fact, Discussion, and Conclusions of Law,
IT IS ORDERED that the Pennsylvania Optical Workers Association shall comply promptly with the instructions of the representatives of the Secretary issued in connection with the supervised election of officers directed by this Court in its order dated December 18, 1984. Specifically, the Association shall comply with:
1. The Secretary's decision not to enforce the Union's general candidacy requirement of attendance at two-thirds of the Union's membership meetings during the year prior to the election;
2. The Secretary's scheduling of the nomination meeting, or his decision to use an alternate means for nominations in the event members are scheduled to work during the nomination meeting.
It is further ORDERED that the Association shall comply with all other instructions of the Secretary that are not arbitrary, capricious, or otherwise contrary to law.