NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS MAY 18 2020

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

EUGENE SCALIA, Secretary of Labor, No. 18-17229 United States Department of Labor,* D.C. No. Plaintiff-Appellee, 2:15-cv-01979-GMN-CWH

v.

MEMORANDUM**

LABORERS INTERNATIONAL UNION

OF NORTH AMERICA LOCAL 872,

Defendant-Appellant.

Appeal from the United States District Court for the District of Nevada Gloria M. Navarro, District Judge, Presiding

Argued and Submitted May 6, 2020 Portland, Oregon

Before: WATFORD and HURWITZ, Circuit Judges, and PREGERSON,*** District Judge.

Officials of Laborers International Union of North America Local 872

* Eugene Scalia is the current Secretary of Labor and was automatically substituted as a party. Fed. R. App. P. 43(c)(2). ** This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. *** The Honorable Dean D. Pregerson, United States District Judge for the Central District of California, sitting by designation. disqualified Martin Trujillo as a candidate for the Local vice-presidency in 2015,

finding that he failed to establish English literacy and lawful permanent residency at

the nomination meeting. The Secretary of Labor challenged Trujillo’s

disqualification under Title IV of the Labor-Management Reporting and Disclosure

Act (“LMRDA”), which requires that 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 . . . reasonable qualifications

uniformly imposed).” 29 U.S.C. § 481(e). Under the LMRDA, even facially

reasonable qualifications “may not be proper if they are applied in an unreasonable

manner.” 29 C.F.R. § 452.53; see Reich v. Local 89, Laborers’ Int’l Union of N.

Am., 36 F.3d 1470, 1477, 1478 (9th Cir. 1994).

The district court granted summary judgment to the Secretary, declared the

2015 vice-presidential election void, and ordered the Secretary to supervise a new

election. See 29 U.S.C. § 482(c). We have jurisdiction over Local 872’s appeal

under 28 U.S.C. § 1291 and affirm.

1. The district court correctly held that Local 872 unreasonably applied its

residency requirement. Although the election notice required candidates to bring

one of several specific forms of documentation of legal residency to the nomination

meeting, Trujillo brought only his driver’s license, which was not on the list of

2 acceptable documents.1 The election judges initially accepted the driver’s license as

proof of residency, but then instructed Trujillo, who indicated that he had two

acceptable forms of documentation at home, to leave the meeting and return with

them by the end of the day. Ten minutes after Trujillo left, however, the election

judges disqualified him, although election ballots were not scheduled to be mailed

for another month, guaranteeing reelection of the now-unopposed incumbent.

Trujillo was presumptively eligible for office, see 29 U.S.C. § 481(e), and “in

the light of all the circumstances,” Chao v. Bremerton Metal Trades Council, 294

F.3d 1114, 1121-22 (9th Cir. 2002) (quoting Local 3489, United Steelworkers of Am.

v. Usery, 429 U.S. 305, 313 (1977)), Local 872 acted unreasonably in summarily

disqualifying him for lack of documentation that he was given permission to retrieve.

See Reich v. Dist. Lodge 720, Int’l Ass’n of Machinists & Aerospace Workers, 11

F.3d 1496, 1498 (9th Cir. 1993) (“The purpose of Title IV is to insure free and

democratic union elections and offset some of the inherent advantages that

1 We reject the Secretary’s contention that requiring candidates to present proof of residency at the nomination meeting conflicts with the union constitution. See Busch v. Givens, 627 F.2d 978, 981 (9th Cir. 1980) (“Absent bad faith or other compelling circumstance, a union’s interpretation of its constitution, as well as its interpretation of its own rules and procedures, should prevail over a court’s notion as to how the union should conduct its affairs.”).

3 incumbents enjoy over rank and file members.”).2

2. Local 872 also unreasonably applied the literacy requirement. Trujillo

was deemed illiterate based entirely on an election judge’s assessment that his

reading of passages from the union constitution was not “smooth” and “continuous,”

and that Trujillo seemed to have difficulty, paused, and mispronounced “some

words.” Under the LMRDA, a union must establish “specific standards of eligibility

by which any member can determine in advance whether or not he is qualified to be

a candidate.” 29 C.F.R. § 452.53. The ad hoc determination that a candidate’s

reading of the union constitution does not pass muster fails to meet that standard.3

3. Upon finding a LMRDA violation that “may have affected the outcome

of an election,” the district court must declare the election void and “direct the

conduct of a new election under supervision of the Secretary.” 29 U.S.C. § 482(c).

Local 872 asks us to direct the Secretary to supervise the next regularly scheduled

election in 2021, rather than an interim election. Although the LMRDA

2 On appeal, the Secretary does not dispute the general validity of a residency or literacy requirement, contending only that Local 872’s requirements were unreasonably applied to Trujillo. 3 The Secretary need not establish Trujillo’s literacy to show that the requirement was unreasonably applied. The LMRDA was not “designed merely to protect the right of a union member to run for a particular office in a particular election,” but rather to protect the “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 (1968).

4 contemplates a prompt election, see 29 U.S.C. § 482(d), Local 872’s next regularly

scheduled election is less than a year away and Trujillo is no longer a member of the

Local. Local 872 argues that it would be inequitable to require a costly interim

election for one office now because the Secretary declined to supervise the

intervening 2018 election and the current vice-president’s term is nearly finished.

Although Local 872’s arguments have some force, we decline to issue a

prescriptive order to the Secretary about scheduling the supervised election. The

district court simply ordered that “a new election be conducted for the office of vice

president under [the Secretary’s] supervision,” without specifying a particular date.

The LMRDA does not prohibit the Secretary from agreeing to supervise Local 872’s

next regularly scheduled election. See 29 U.S.C. § 482(b), (c). We therefore affirm

the orders of the district court. If the parties are unable to arrive at a mutually

agreeable time for the Secretary to supervise a vice-presidential election, they are

free to return to the district court to resolve that dispute in the first instance.4

AFFIRMED.5

4 At oral argument, counsel for the Secretary indicated that the Department’s “general position” is to coordinate with unions in scheduling supervised elections, and that, in light of the ongoing global pandemic, the Secretary was open to coordinating with Local 872 to schedule the supervised vice-presidential election. 5 Local 872’s motion for judicial notice, Dkt. 18, is denied.

5