Subject:  MASTERS, MATES & PILOTS v. BROWN, Syllabus



    NOTE: Where it is feasible, a syllabus (headnote) will be released, as
    is being done in connection with this case, at the time the opinion is
    issued.  The syllabus constitutes no part of the opinion of the Court
    but has been prepared by the Reporter of Decisions for the convenience
    of the reader.  See United States v. Detroit Lumber Co., 200 U.9S. 321,
    337.
SUPREME COURT OF THE UNITED STATES


Syllabus



AINTERNATIONAL ORGANIZATION FOR MASTERS, MATES & PILOTS et al. v. BROWN

Bcertiorari to the united states court of appeals for the fourth circuit

CNo.989-1330.  Argued November 27, 1990--Decided February 20, 1991

DRespondent, 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 9401(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 .9.9.9, to comply with all reasonable requests of
any candidate to distribute by mail or otherwise at the candidate's expense
campaign literature .9.9.9."  The District Court entered a preliminary
injunction in respondent's favor, ruling, inter alia, that 9401(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.

EHeld: 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.97-12.

    F(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 9401(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 9401(c) apart from the fact that it violated the
    Union rule.  Pp.97-8.

    (b) The text, structure, and purpose of Title IV of the LMRDA all
    demonstrate that 9401(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 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 9401(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.99-12.
G889 F. 2d 58, affirmed.

H Stevens, J., delivered the opinion for a unanimous Court.
------------------------------------------------------------------------------




Subject: X, 89-1330--OPINION



MASTERS, MATES & PILOTS v. BROWN
 


NOTICE: This opinion is subject to formal revision before publication in
the preliminary print of the United States Reports.  Readers are requested
to notify the Reporter of Decisions, Supreme Court of the United States,
Washington, D. C. 20543, of any typographical or other formal errors, in
order that corrections may be made before the preliminary print goes to
press.

SUPREME COURT OF THE UNITED STATES


No. 89-1330


AINTERNATIONAL ORGANIZATION OF MASTERS, MATES & PILOTS, et al. v. TIMOTHY
A. BROWN

Bon writ of certiorari to the united states court ofappeals for the fourth
circuit

C[February 20, 1991]



A Justice Stevens delivered the opinion of the Court.
B 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 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 days9 {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. {2}  Any Union
member in good standing 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:

E "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 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.
F

    On June 15, respondent appealed that denial to the Union General
Executive Board, {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 9401(c) of the Labor Management
Reporting and Disclosure Act of 1959 (LMRDA), 73 Stat. 532, 29 U.9S.9C.
9481(c). {4}  In his complaint, respondent alleged that the convention 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. {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 9401(c) 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.  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 postconvention 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). {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:

E"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.
F

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 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, {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.9S. Z (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).

NII
D 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. {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.9g., Moore v. Ogilvie, 394 U.9S. 814,
816 (1969) ("The problem is therefore `capable of repetition, yet evading
review,' Southern Pacific Terminal Co. v. Interstate Commerce Commission,
219 U.9S. 498, 515 [(1911)]").
    Second, even though respondent's candidacy had not been certified at a
postconvention 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.9S.9C. 9481(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. {9}  The
Union, in accordance with our opinions in Wirtz v. Hotel Employees, 391
U.9S. 492 (1968), and Steelworkers v. Usery, 429 U.9S. 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:

E "Congress plainly did not intend that the authorization in 9401(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 .9.9.9.9'  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 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 9401(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.9S., at 499 (footnote omitted).
F

    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 9401(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.

CIII
D 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 9401(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 .9.9.9."
29 U.9S.9C. 9481(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 9401(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 9101(a)(1) and 101(a)(2), 29 U.9S.9C. 9411(a)(1) and
411(a)(2), and are made "subject to reasonable rules" in the Union
constitution, the 9401(c) right is unqualified. {10}  Moreover, unlike
other rights created by Title IV that are judicially enforceable only in
actions brought by the Secretary of Labor, the 9401(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.9S. 463, 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 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."9 {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 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 as soon as possible better serves the interest in leveling the
playing field 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
9401(e) is "subject to .9.9. reasonable qualifications uniformly imposed."
29 U.9S.9C. 9481(e).  Similarly, the provision in 9101(a)(1) of the LMRDA,
29 U.9S.9C. 9411(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.9S.9C. 9411(a)(2).  These expressions of respect for internal union
rules are notably absent in 9401(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.

GIt is so ordered.


T
 
 
 
 
 

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1
    9In the 1980 and 1984 Union elections, the ballots were mailed on the
30th day.  App. 57.

2
    9An 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.

3
    9Between conventions, the Union is governed by a General Executive
Board, consisting of the International officers and the vice-presidents.
Id., at 18-19.

4
    9Section 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.9S.9C. 9481(c) (emphasis added).

5
    9A 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 9401(c) and was
therefore unlawful.  See App. 52-54; see also Brief for United States as
Amicus Curiae 4.

6
    9The 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.

7
    9Although 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.

8
    9Indeed, 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.

9
    9Section 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.9S.9C. 9481(e).

10
    9"9`[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.'9"  Russello v. United States, 464 U.9S. 16, 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.9S. Z, Z (1990)
[slip op., at 6-7, 9-10].

11
    9Hearings 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.
