MEMORANDUM OPINION
Under 29 U.S.C. § 482 (1982), the Secretary of Labor is authorized to sue in a federal district court on behalf of a union member to set aside an allegedly invalid union election. In this proceeding plaintiff Thomas Doyle sues the Secretary because of his refusal to bring an action against Local 6 of the International Brotherhood of Electrical Workers (“Local 6” or “Union”) to overturn a union election held in June 1984. Ruling insufficient the Secretary’s initial statement of reasons 1 for that refusal, the Court remanded the matter to the *225 Secretary for further consideration of Doyle’s challenge.
Doyle, a candidate for union office, was declаred ineligible to run by Local 6 because of a meeting attendance requirement contained in the Union bylaws. He maintains that the Secretary should file suit against the Union because the meeting attendance requirement is not a “reasonable qualificаtion” for union office under 29 U.S.C. § 481(e). The relevant background of the case is set out in the Court’s Memorandum Opinion of March 4, 1986,
Doyle v. Brock,
Upon remand, the Secretary again determined not to sue Local 6 on plaintiff’s behalf and, as required by the remand order, offered a supplemental statement of reasons (“Supplemental Statement”) for that decision. The Supplemental Statement must now be reviewed under the standard set out in
Dunlop v. Bachowski,
DISCUSSION
The original statement of reasons for nоt filing suit was found inadequate for two independent reasons. First, it failed to adequately address Doyle’s claim that the challenged bylaw has no legitimate justification that outweighs its significant antidemocratic effect, that is, the exclusion of 97 percent of the Uniоn’s membership from candidacy in the election. The initial statement did not even recognize the substantial precedent indicating that the exclusion of such a large percentage of members often makes a qualification unreasonable. Seсond, the statement did not explain the Secretary’s rejection of Doyle’s claim that the Union’s use of an attendance roster to determine candidate eligibility violated Department of Labor regulations since the means of complying with eligibility requirements was not clearly expressed in the bylaws or other duly enacted rules. The Supplemental Statement adequately addresses the second issue, but does not provide a consistent and rational analysis sufficient to justify not filing suit on basis of the first.
A.
The Supplemental Statement treats much more thoroughly Doyle’s contention that the application of the meeting attendance requirement by referring only to the attendance roster violated a provision of the Department’s own regulations interpreting thе “reasonableness” of candidacy qualifications. 29 C.F.R. § 452.53 (1985). The general meeting attendance requirement was published in a bylaw and anyone intending to meet it would have to attend meetings or request excuses. The Secretary found that “the local’s proсedure for determining meeting attendance ... was a longstanding practice known to members attending the Local’s regular meetings.” Supplemental Statement at 12; accord id. at 3. Thus, the Secretary concluded that “any member seeking to qualify under Rule 9(f) would have notice of the requirement that he or she sign the Register of Attendance.” Id. at 12. The finding that members knew the purpose of the attendance roster and that Doyle’s assertion of his own lack of knowledge was not credible, Supplemental Statement at 6, are not open to challenge under Bachowski. Based on his investigation, the Secretary concluded that the application of the qualification contained in the Union bylaws was not unreasonable, and the Court does not believe this conclusion was irrational.
B.
A differеnt judgment must be reached regarding the Secretary’s treatment of Doyle’s more general challenge to the meeting attendance requirement based on its exclusion of 97 percent of the mem *226 bership from union candidacy. The Supplemental Statеment does little more than re-plow in more detail ground already covered in the initial statement of reasons, but it does make clear that the Secretary’s primary reason for not moving to strike down the qualification on this ground was the liberal excuse рolicy contained in Article III, section 9(g) of the bylaws. No other explanation is offered or apparent for the inconsistency between his refusal to bring suit in this case and his successful challenge to a less restrictive attendance requirement in Donovan v. Cincinnati Area Local, American Postal Workers Union, No. C-l-81-776 (S.D.Ohio January 11, 1983) (unpublished opinion) (union bylaw excluded from candidacy members who failed to attend four of the previous 12 regularly scheduled union meetings). According to the Secretary, the attendance requirement in the Cincinnati Area Local case was coupled with a very restrictive excuse provision. Supplemental Statement at 9 n. 2.
Under Department of Labor regulations, the “availability and extent of excuse provisions” is a factor considered by the Seсretary in deciding whether a meeting attendance requirement is reasonable. 29 C.F.R. § 452.38(a) (1985). So too, however, is “the impact of the rule, i.e., the number or percentage of members who would be rendered ineligible by its application.”
Id.
The Supplemental Statement offers no rational or defensible explanation why the former factor can or should neutralize the latter when a very high percentage of the membership is excluded. In fact, as noted in the previous Memorandum Opinion, the courts have nеver accepted the argument that a liberal excuse provision can save an otherwise overly restrictive attendance requirement.
Furthermore, it is far from clear, contrаry to the Secretary’s implied position, that the absence of liberal excuse provisions is of overriding importance to courts reviewing meeting attendance requirements for reasonableness. While the government claims that the challenged bylаw in
Cincinnati Area Local
severely restricted allowable excuses, there is no indication in the district court’s opinion that this had any influence on the decision striking down the election. The government also argues that “the lack of any excuse provision can render an othеrwise reasonable meeting attendance requirement unreasonable.” Supplemental Statement at 10 n. 3. In the case cited for this proposition,
Marshall v. Millwrights Local No. 1914,
In sum, the government’s reliance on Local 6’s excuse рrovision as reason for not filing suit is flawed and unsupported by caselaw or rational argument.
In addition, the only justification asserted on behalf of the bylaw, that “it can be viewed as encouraging participation in union affairs by potential candidates in the period immediately prior to the election,” Supplemental Statement at 9, does not counterbalance its extreme antidemocratic effect. In part, the justification is simply a variation of, and is no more convincing than, the “ensures qualifiеd candidates” rationale that was questioned in
Local 3489, United Steelworkers of America v. Usery,
Unlike the district court in
Cincinnati Area Local,
this Court is not troubled that meeting attendance requirements, even those that do not seem especially onerous, are closely scrutinized by the courts and unfavorably received when they greatly restrict the free choice of the membership in choosing its leaders. Title IV of the Labor-Management Reporting and Disclosure Act, 29 U.S.C. § 481
et seq.,
was intended to guarantee free and democratic union elections, modeled on our national political elections.
Steelworkers,
This Court is well aware of the procedural posture of this matter, and the narrow standard of review permitted by
Bachowski. Shelley v. Brock,
at 1372 (“The standard by which the courts are to review the Secretary of Labor’s decision under the LMRDA is quite deferential”). To find for the plaintiff, the Court must conclude not that it would overturn the election if challenged by the Secretary, but that the decision not to challenge the election was so irrational as to be arbitrary аnd capricious.
Cf. Balanoff v. Donovan,
C.
In the Court’s view, two bites at this apple would appear to be more than adequate. This opinion constitutes a final determination that the Secretary’s decision not to file suit on behalf of the plaintiff was and is arbitrary and capricious. The likelihood that a further statement of reasons would cause the Court to change its view of the Secretary’s decision is so small, and the importancе of rapid action so great, 3 that no further statement is requested, nor will it be considered. The government is encouraged to expedite its decision whether to appeal this ruling. 4
An appropriate order will be entered.
Notes
. Two separate documents comprised the Secretary's initial statеment of reasons. These documents are attached as exhibits to the Memorandum Opinion of March 4, 1986. For convenience, they will be referred to in this opinion as the initial or original statement of reasons.
. Encouraging participation in union affairs wоuld seem to be a worthy union objective. But there would also seem to be many ways to accomplish this objective without restricting the ranks of potential leadership in such a draconian fashion. In any event, participation in union affairs undoubtedly includеs much more than attending membership meetings, and the members are perfectly able to determine if a candidate has demonstrated sufficient "participation" in the union to be a suitable officer.
The term of officers elected in the disputed June 1984 еlection is now two-thirds completed.
In
Bachowski,
the Supreme Court assumed that the Secretary would "proceed appropriately without the coercion of a court order."