Respondent, an unsuccessful candidate in prior elections of
petitioner Union, advised the Union that he would be a candidate in
the upcoming 1988 election and requested that he be provided with
mailing labels so that he could arrange for a timely mailing of
election literature to members prior to the Union's nominating
convention. The request was denied because a Union rule prohibited
such preconvention mailings. Respondent filed suit under § 401(c)
of the Labor Management Reporting and Disclosure Act of 1959
(LMRDA), which places every union
"under a duty, enforceable at the suit of any bona fide
candidate . . . , to comply with all reasonable requests of any
candidate to distribute by mail or otherwise at the candidate's
expense campaign literature. . . ."
The District Court entered a preliminary injunction in
respondent's favor, ruling,
inter alia, that § 401(c)'s
clear language required it to focus on the reasonableness of
respondent's request rather than on the reasonableness of the Union
rule under which the request was denied, that the request was
clearly reasonable, and alternatively, that the Union rule was
invalid. The Court of Appeals affirmed.
Held: Section 401(c) does not require a court to
evaluate the reasonableness of a union rule before it decides
whether a candidate's request was reasonable. Pp.
498 U. S.
473-478.
(a) It is undisputed, first, that the case is not moot, even
though respondent's campaign literature has been distributed and he
lost the 1988 election, because he has run for office before, and
may well do so again, and the likelihood that the Union rule would
again present an obstacle to his preconvention mailing makes this
controversy sufficiently capable of repetition to preserve this
Court's jurisdiction; second, that respondent was a "bona fide
candidate" within § 401(c)'s meaning when he made his preconvention
request; and, third, that there is no basis for contending that the
request was not "reasonable" under § 401(c) apart from the fact
that it violated the Union rule. Pp.
498 U. S.
473-475.
(b) The text, structure, and purpose of Title IV of the LMRDA
all demonstrate that § 401(c) simply prescribes a straightforward
test: Is the candidate's distribution request reasonable? The
section's language plainly requires unions to comply with
"
all reasonable requests" (emphasis
Page 498 U. S. 467
added), and just as plainly does
not require union
members to comply with "all reasonable rules" when making such
requests. Moreover, Congress gave the candidate's § 401(c) right a
special status not conferred upon other Title IV rights granted
union members, which are expressly made subject to "reasonable"
conditions imposed by unions, and are judicially enforceable only
in actions brought by the Secretary of Labor. A broad
interpretation of the candidate's right also is consistent with the
statute's basic purpose of insuring free and democratic union
elections by offsetting the inherent advantage incumbent union
leadership has over potential rank and file challengers.
Furthermore, the Union's arguments supporting its position that a
request is
per se unreasonable simply because it conflicts
with a Union rule are unpersuasive. The Union does not advance any
other reason for suggesting that respondent's request was
unreasonable; thus, the request must be granted. Pp.
498 U. S.
475-478.
889 F.2d 58 (C.A.4 1989), affirmed.
STEVENS, J., delivered the opinion for a unanimous Court.
Justice STEVENS delivered the opinion of the Court.
Labor unions have a statutory duty to distribute campaign
literature to their membership in response to the reasonable
request of any candidate for union office. In this case the union
denied such a request because the candidate wanted
Page 498 U. S. 468
the literature mailed in advance of the union's nominating
convention and a union rule prohibited such preconvention mailing.
The question presented is whether a court must evaluate the
reasonableness of the union's rule before it decides whether the
candidate's request was reasonable. Like the Court of Appeals and
the District Court, we conclude that the statute requires us to
give a negative answer to that question.
I
The International Organization of Masters, Mates & Pilots
(Union) represents about 8,500 members employed in, or in work
related to, the maritime industry. Many of the members are away
from home for extended periods of time because they work on ships
that ply the high seas. Elections of Union officers are conducted
every four years by means of a mail ballot. An International Ballot
Committee, which oversees the election, is elected at the
convention, and an Impartial Balloting Agency, which conducts the
balloting, is also selected by the delegates at the convention.
App. 36, 25-26. The ballots are mailed to the membership no later
than 30 days [
Footnote 1] after
the convention at which candidates are nominated, and must be
returned within the ensuing 90-day period. Union rules authorize
the mailing of campaign literature at the candidate's expense after
nominations have been made, but not before. [
Footnote 2] Any Union member in good standing
Page 498 U. S. 469
may be a candidate; moreover, a candidate may nominate
himself.
Respondent was an unsuccessful candidate for Union office in
1980 and 1984. On May 9, 1988, he formally advised the
International Secretary-Treasurer of the Union that he would be a
candidate in the election to be held in the fall, and requested
that the Union provide him with mailing labels containing the names
and addresses of voting Union members, to be given to a mailing
service so that he could arrange, at his own expense, for a timely
mailing of "election literature prior to the Convention."
Id. at 41.
On June 2, 1988, respondent wrote to the International President
of the Union advising him that he would be a candidate for that
office, that he intended to send his first mailing to the
membership on July 6, and that he had not "had the courtesy of a
reply" to his earlier letter to the Secretary-Treasurer.
Id. at 43. Five days later, the Secretary-Treasurer
provided respondent with the following explanation as to why his
request could not be accommodated:
"Although I can understand your eagerness in wanting to send out
your campaign literature early, please be advised that as soon as
the rules are established for mailing campaign literature, all
candidates will be notified at the same time."
"As the practice has been in the past, and the Constitution
prescribes, the IOMM & P Convention is the event in which all
candidates officially are nominated to run for a particular office.
Only after the Convention takes place, and when the Impartial
Balloting Agency is designated, will the mailing agency to handle
campaign
Page 498 U. S. 470
literature be designated. Please refer to Article V, Section 10
of the International Constitution. This procedure has been
established so that each candidate will have a fair and equal
amount of time in which to adequately reach the membership and to
prohibit any one candidate from having an edge over the other."
Id. at 44-45.
On June 15, respondent appealed that denial to the Union General
Executive Board, [
Footnote 3]
repeating his desire for action by July 5.
Id. at 46. On
July 6, the General Executive Board denied his appeal. Five days
later, respondent filed this action under § 401(c) of the Labor
Management Reporting and Disclosure Act of 1959 (LMRDA), 73 Stat.
532, 29 U.S.C. § 481(c). [
Footnote
4] In his complaint, respondent alleged that the convention
Page 498 U. S. 471
was scheduled to begin on August 22 and that he wanted
"to encourage the membership to begin consideration of his
candidacy and of the issues he hope[d] to raise during his campaign
before the deadline for making nominations, both in order to
persuade the membership that he should be nominated and elected,
and to attract support from individuals who might otherwise be
inclined to run for office themselves or to encourage other members
to do so."
App. 8-9. [
Footnote 5]
Two weeks later, after both sides had filed affidavits and a
hearing had been held, the District Court entered a preliminary
injunction directing the Union and its two main officers "within
forty-eight hours, and again in response to any further requests"
to deliver the names and addresses of the Union members to a
mailing service acceptable to the parties.
Id. at 74. The
order also provided that respondent should pay for the costs of the
mailing service.
Id. at 74-75. The District Court based
its decision on alternative grounds. First, it held that the clear
language of § 401(c) required it to focus on the reasonableness of
respondent's request, rather than on the reasonableness of the
Page 498 U. S. 472
Union rule under which the request was denied. In addition, the
District Court concluded that the request to make a campaign
distribution approximately one month before the convention was
"clearly reasonable," and that, if the application of a Union rule
resulted in the rejection of such a request, the rule was invalid.
Id. at 77.
Second, and alternatively, the District Court held that, even if
the standard of review is the reasonableness of the Union rule,
rather than the reasonableness of respondent's request, the rule
was unreasonable because preconvention campaigning was essential to
introducing a candidate and his ideas to Union members and because
the post-convention ballot period of 90 days was inadequate for
effective campaigning in a Union whose members' work kept them away
from home for substantial periods of time.
Id. at 77-78.
The United States Court of Appeals for the Fourth Circuit
affirmed.
Brown v. Lowen, 857 F.2d 216 (1988). [
Footnote 6] The majority held that the
question whether respondent was entitled to have his request
granted depended "entirely on whether his request may be said to be
reasonable."
Id. at 217. This conclusion involved "nothing
more than a reading of the plain language of the statute,"
ibid., and was buttressed by the statutory purpose of
ensuring Union democracy:
"When the union bureaucracy has exclusive control of the union
membership lists, with addresses, as in this case, and that
bureaucracy has continuous contact with the union membership and
particularly the local union officers, the advantages of incumbency
over any attempt of an insurgent to promote his candidacy before or
after the quadrennial nominating convention of the union are
obvious. By requiring unions to comply with all reasonable requests
of candidates for access to the union lists, these advantages of
incumbency are reasonably moderated. And it was to provide that
very moderation of the advantages of incumbency which was the
intention of the Act."
Id. at 218. The majority found nothing unreasonable in
respondent's request, and rejected the Union's argument that it
could limit the time in which literature could be distributed in
order to
Page 498 U. S. 473
avoid discrimination, "since any candidate, whether an incumbent
or an insurgent, has the same rights as the plaintiff."
Ibid.
The dissenting judge found nothing unreasonable or
discriminatory in the Union's election procedures. According to the
dissent, a candidate's request that did not conform to a reasonable
union rule was itself "
per se unreasonable."
Id.
at 219. After a rehearing en banc, [
Footnote 7] by a vote of 8 to 2, the Court of Appeals
adopted the majority's holding and affirmed the District Court.
Brown v. Lowen, 889 F.2d 58 (1989) (per curiam ). We
granted certiorari, 496 U.S. 935 (1990), to resolve the conflict
between the Fourth Circuit's decision in this case and an earlier
decision by the Third Circuit in
Donovan v. Metropolitan
District Council of Carpenters, 797 F.2d 140 (1986).
II
Three important propositions are undisputed. First, even though
respondent's campaign literature has been distributed, and even
though he lost the election by a small margin, the case is not
moot. Respondent has run for office before, and may well do so
again. [
Footnote 8] The
likelihood that the Union's rule would again present an obstacle to
a preconvention mailing by respondent makes this controversy
sufficiently capable of repetition to preserve our jurisdiction.
See, e.g., Moore v. Ogilvie, 394 U.
S. 814,
394 U. S. 816
(1969) ("The problem is therefore
capable of repetition, yet
evading review,' Southern Pacific Terminal Co. v. Interstate
Commerce Commission, 219 U. S. 498,
219 U. S.
515").
Page 498 U. S. 474
Second, even though respondent's candidacy had not been
certified at a post-convention meeting of the Union Impartial
Ballot Committee in accordance with the Union's formal election
procedures, it is clear that respondent was a "bona fide candidate
for office" within the meaning of the statute when he made his
preconvention request to distribute campaign literature. 29 U.S.C.
§ 481(c). Section 401(e) of the LMRDA guarantees the right of every
union member in good standing to be a candidate subject to the
"reasonable qualifications uniformly imposed" by the Union.
[
Footnote 9] The Union, in
accordance with our opinions in
Wirtz v. Hotel Employees,
391 U. S. 492
(1968), and
Steelworkers v. Usery, 429 U.
S. 305 (1977), does not contend that it would be
reasonable to refuse to recognize an eligible candidate until after
the nominating process is completed. As we explained in
Wirtz:
"Congress plainly did not intend that the authorization in §
401(e) of 'reasonable qualifications uniformly imposed' should be
given a broad reach. The contrary is implicit in the legislative
history of the section and in its wording that 'every member in
good standing shall be eligible to be a candidate and to hold
office. . . .' This conclusion is buttressed by other provisions of
the Act which stress freedom of members to nominate candidates for
office. Unduly restrictive candidacy qualifications can result in
the abuses of entrenched leadership that the LMRDA was expressly
enacted to curb. The check of democratic elections as a preventive
measure is seriously impaired by candidacy qualifications which
Page 498 U. S. 475
substantially deplete the ranks of those who might run in
opposition to incumbents."
"It follows therefore that whether the Local 6 bylaw is a
'reasonable qualification' within the meaning of § 401(e) must be
measured in terms of its consistency with the Act's command to
unions to conduct 'free and democratic' union elections."
391 U.S. at
391 U. S. 499
(footnote omitted).
Third, apart from the fact that respondent's request violated
the Union rule against preconvention mailings, there is no basis
for contending that the request was not "reasonable" within the
meaning of § 401(c). No question is raised about respondent's
responsibility for the cost of the mailing or about any
administrative problem in complying with his request. The sole
issue is whether the Union rule rendered an otherwise reasonable
request unreasonable.
III
The text, structure and purpose of Title IV of the LMRDA all
support the conclusion that our inquiry should focus primarily on
the reasonableness of the candidate's request, rather than on the
reasonableness of the Union's rule curtailing the period in which
campaign literature may be mailed.
The language of § 401(c) explicitly instructs the Union and its
officers
"to comply with
all reasonable requests of
any
candidate to distribute by mail or otherwise at the
candidate's expense campaign literature. . . ."
29 U.S.C. § 481(c) (emphasis added). The language of the statute
plainly requires unions to comply with "all reasonable requests,"
and just as plainly does not require union members to comply with
"all reasonable rules" when making such requests. Unlike the
member's right to run for union office, which is created by §
401(e) and made expressly subject to the "reasonable qualifications
uniformly imposed" by the Union, and unlike the member's speech and
voting rights, which are governed by sections of the LMRDA such
as
Page 498 U. S. 476
§§ 101(a)(1) and 101(a)(2), 29 U.S.C. §§ 411(a)(1) and
411(a)(2), and are made "subject to reasonable rules" in the Union
constitution, the § 401(c) right is unqualified. [
Footnote 10] Moreover, unlike other rights
created by Title IV that are judicially enforceable only in actions
brought by the Secretary of Labor, the § 401(c) right is directly
enforceable in an action brought by the individual Union member.
Thus, as the language of the statute suggests, Congress gave this
right pertaining to campaign literature a special status that it
did not confer upon other rights it granted to Union members.
The special purpose of Title IV was to insure free and
democratic union elections.
See Wirtz v. Glass Bottle
Blowers, 389 U. S. 463,
389 U. S. 470
(1968). The statutory guarantees are specifically designed to
offset the "inherent advantage over potential rank and file
challengers" possessed by incumbent union leadership.
Id.
at
389 U. S. 474.
One of the advantages identified by Archibald Cox in his testimony
in support of the Act is the incumbents' control of "the union
newspaper, which is the chief vehicle for communication with the
members." [
Footnote 11] A
broad interpretation of the candidate's right to distribute
literature commenting on the positions advocated in the union press
is consistent with the statute's basic purpose.
The Union advances three related arguments in support of its
position that mailing requests should be considered unreasonable if
they do not comply with nondiscriminatory rules
Page 498 U. S. 477
that have been adopted through democratic procedures. First, the
Union correctly notes that any fair election must be conducted in
accordance with predetermined rules, and that the reasonableness of
any election-related request must be evaluated in view of those
rules. Second, it argues that the rule at issue furthers its duty
to avoid discrimination in the conduct of the election. Third, it
relies on the congressional policy of avoiding unnecessary
intervention in the internal affairs of labor unions.
We find these arguments unpersuasive. Rules must, of course, be
adopted to govern the process of nominating candidates, casting
ballots, and counting votes. Moreover, in connection with the
process of distributing campaign literature to the membership,
rules that establish the procedures for making mailing requests,
selecting a mailing agent, and paying the cost of the mailing, are
no doubt desirable. The justifications underlying such rules
(uniformity of treatment, reduction of administrative burdens) and
the fair notice provided to candidates by the existence and
publication of such rules all would be relevant in determining
whether a request is reasonable. But these concerns in no way
dictate a rule prohibiting mailings before a nominating convention.
Here, in particular, a preconvention mailing would not place any
burden on the Union, because the candidate must assume the cost of
the mailing. Moreover, in union elections, as in political
elections, it is fair to assume that more, rather than less,
freedom in the exchange of views will contribute to the democratic
process. Here, respondent, by his request for a preconvention
mailing, hoped to provide Union members with "more information,"
with which to inform their voting decisions. App. 14.
The concern about discrimination among individual candidates is
surely satisfied by a rule that allows any candidate access to the
membership before the convention as well as by a rule that denies
all candidates such access. Indeed, arguably opening the channels
of communication to all candidates
Page 498 U. S. 478
as soon as possible better serves the interest in leveling the
playingfield, because it offsets the inherent advantage that
incumbents and their allies may possess through their control of
the union press and the electoral lists during the four years in
which they have been in office.
The policy of avoiding unnecessary intervention into internal
union affairs is reflected in several provisions of the LMRDA. We
have already referred to the fact that the right to hold union
office protected by § 401(e) is "subject to . . . reasonable
qualifications uniformly imposed." 29 U.S.C. § 481(e). Similarly,
the provision in § 101(a)(1) of the LMRDA, 29 U.S.C. § 411(a)(1),
governing the right to nominate candidates, to vote in elections,
and to attend union meetings is expressly made subject to the
union's "reasonable rules and regulations." Moreover, the member's
right to speak freely at union meetings is "subject to the
organization's established and reasonable rules pertaining to the
conduct of meetings." 29 U.S.C. § 411(a)(2). These expressions of
respect for internal union rules are notably absent in §
401(c).
Section 401(c) simply prescribes a straightforward test: Is the
candidate's distribution request reasonable? Having dispensed with
the Union's argument that a request is
per se unreasonable
simply because it conflicts with a Union rule, we need only note
again that, in this case, the Union does not advance any other
reason for suggesting that respondent's request was unreasonable.
The Union does not contend, for example, that respondent's request
caused administrative or financial hardship to the Union, or that
it discriminated against any other candidate. In the absence of any
showing by the Union as to the unreasonableness of the request, we
hold, consistent with the lower courts' findings, that respondent's
request was reasonable, and must be granted.
The judgment of the Court of Appeals is affirmed.
It is so ordered.
[
Footnote 1]
In the 1980 and 1984 Union elections, the ballots were mailed on
the 30th day. App. 57.
[
Footnote 2]
An affidavit of the International President of the Union
describes the procedure:
"The procedure followed under the IOMM & P Constitution for
distribution of campaign literature does not permit access to the
mailing list for distribution until after nominations have been
made. No candidate, including incumbents, may use the mailing list
for this purpose before this time. The International Ballot
Committee meets after the close of the convention and reviews the
qualifications of candidates to ensure their eligibility.
Candidates are required to accept nomination within ten days and to
certify that they are not prevented from holding office (Article V,
section 5). Once all candidates are certified, the Impartial
Balloting Agency notifies all candidates at the same time of the
conditions for distribution of literature. The mailing agency is
selected by the Impartial Balloting Agency, and is not the same
mailing agency used for other communications to members."
Id. at 60-61.
[
Footnote 3]
Between conventions, the Union is governed by a General
Executive Board, consisting of the International officers and the
vice-presidents.
Id. at 18-19.
[
Footnote 4]
Section 401(c) of the LMRDA provides:
"Every national or international labor organization, except a
federation of national or international labor organizations, and
every local labor organization, and its officers, shall be under a
duty, enforceable at the suit of any bona fide candidate for office
in such labor organization in the district court of the United
States in which such labor organization maintains its principal
office,
to comply with all reasonable requests of any candidate
to distribute by mail or otherwise at the candidate's expense
campaign literature in aid of such person's candidacy to all
members in good standing of such labor organization and to
refrain from discrimination in favor of or against any candidate
with respect to the use of lists of members, and whenever such
labor organizations or its officers authorize the distribution by
mail or otherwise to members of campaign literature on behalf of
any candidate or of the labor organization itself with reference to
such election, similar distribution at the request of any other
bona fide candidate shall be made by such labor organization and
its officers, with equal treatment as to the expense of such
distribution. Every bona fide candidate shall have the right, once
within 30 days prior to an election of a labor organization in
which he is a candidate, to inspect a list containing the names and
last known addresses of all members of the labor organization who
are subject to a collective bargaining agreement requiring
membership therein as a condition of employment, which list shall
be maintained and kept at the principal office of such labor
organization by a designated official thereof. Adequate safeguards
to insure a fair election shall be provided, including the right of
any candidate to have an observer at the polls and at the counting
of the ballots."
29 U.S.C. § 481(c) (emphasis added).
[
Footnote 5]
A few days after the lawsuit was filed, a representative of the
Department of Labor wrote letters to both parties expressing the
view that the Union's denial of respondent's request violated §
401(c), and was therefore unlawful.
See App. 52-54;
see also Brief for United States as
Amicus Curiae
4.
[
Footnote 6]
The Court of Appeals explained that
"[alt]hough the order of the district judge related to an
application for a preliminary injunction, the granting of the
motion in effect constituted a decision on the merits,"
and thus it reviewed the case on the merits, and "affirm[ed] the
decision of the district court as one on the merits." 857 F.2d at
216.
[
Footnote 7]
Although the Secretary of Labor had not participated in any of
the earlier stages of this litigation, she filed a brief as
amicus curiae in support of respondent and participated in
oral argument before the en banc panel.
[
Footnote 8]
Indeed, because of irregularities in the conduct of the 1988
election, the Secretary of Labor has persuaded the District Court
to order a new election. Respondent remains a candidate for the
office of International President in that election. However,
presumably at this time no question concerning preconvention
mailings remains open in connection with the 1988 election.
[
Footnote 9]
Section 401(e) provides in relevant part:
"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 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."
29 U.S.C. § 481(e).
[
Footnote 10]
"'[W]here Congress includes particular language in one section
of a statute, but omits it in another section of the same Act, it
is generally presumed that Congress acts intentionally and
purposely in the disparate inclusion or exclusion.'"
Russello v. United States, 464 U. S.
16,
464 U. S. 23
(1983) (quoting
United States v. Wong Kim Bo, 472 F.2d
720, 722 (CA5 1972));
see General Motors Corp. v. United
States, 496 U. S. 530,
496 U. S.
537-538,
496 U. S. 541
(1990).
[
Footnote 11]
Hearings on S. 505
et al. before the Subcommittee on
Labor of the Senate Committee on Labor and Public Welfare, 86th
Cong., 1st Sess., 134 (1959). Consistent with Archibald Cox's
observations, the Union newspaper here was also "the principal and
only regular source of news which members have about union
affairs." App. 13.