Appeals Court Allows Broader Distribution of Union Election Campaign Materials
by Cathy Highet
On May 28, 2024, the United States Court of Appeals for the District of Columbia Circuit issued a decision that could be useful to candidates for union office who want to distribute campaign materials, especially in union publications.
The decision is called Noble v. NALC, and it held that unions must honor “reasonable requests” by candidates to have campaign materials included in union magazines. However, the Court did not give much detail on what requests are “reasonable.”
The case was brought by David Noble, a member of the National Association for Letter Carriers who was running for national President in the 2022 election. He asked the union to publish his campaign materials in multiple issues of the union’s magazine. The union rejected the request. It had a policy that there is one designated election issue of the union’s magazine each election cycle. Candidates can place paid advertisements in that issue only.
Noble filed a lawsuit under Section 401(c) of the Labor-Management Reporting and Disclosure Act (“LMRDA”). Section 401(c) gives union members running for office a right to send campaign literature to other members. Specifically, it says unions must “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.”
That’s a convoluted sentence, but the Noble case focused on two little pieces of it. The first was the word “distribute.” NALC argued that including an ad in the union magazine wasn’t just “distributing” – it was publishing. NALC argued a union magazine is more than a mailing – it’s the union’s voice as an organization. NALC also argued a union has a free speech right to choose what it does and doesn’t say as an organization.
The Court of Appeals disagreed. It held that “publish” and “distribute” mean the same thing. It held that the purpose of the LMRDA was to level the playing field between incumbent and insurgent candidates, and one way of doing that was by making sure both have access to the union newspaper. The Court also held that readers would know candidate advertisements were speech by the candidates, not the union’s speech as an organization.
But before you conclude that candidates always get to place ads in the union newspaper, go back and look at that quote from Section 401(c) again – and look at the words “reasonable request.” A candidate only has a right to put their ad in the union newspaper if the candidate’s request is “reasonable.”
Unfortunately, Noble v NALC does not give us a clear idea of when a request to run campaign ads in the union’s newspaper is “reasonable.”
The Court of Appeals did not decide whether Noble’s request was reasonable. To decide whether a particular request is reasonable, courts must analyze all the facts in the particular case. The lower court hadn’t done that yet in Noble’s case. Courts of appeals almost never take the first crack at analyzing factual questions – collecting evidence is a job for lower courts, not courts of appeals. So, the Court of Appeals sent Noble’s case back to the lower court and told it to let both sides put in evidence about whether Noble’s request was reasonable.
Although the Court of Appeals did not give a final answer about Noble’s request, it did give some basic legal guidance. It said the lower court should ask how much of a burden the request created for the union. The lower court should also ask whether the request would cause discrimination against other candidates. (For example, imagine Noble had asked to have a full-page ad on the back cover of every issue – how could the union give other candidates equal treatment?)
Finally, the Court of Appeals rejected NALC’s argument that Noble’s request was unreasonable because the union had adopted a “reasonable rule” limiting campaign ads to one issue. The Court held Section 401(c) talks about “reasonable requests” and doesn’t say anything about “reasonable rules.” So, the lower court should determine whether Noble’s request was reasonable, not just whether NALC’s rule was. However, one judge wrote separately to say he thought that the union’s rules could be part of the evidence about whether Noble’s request was reasonable.
We do not know yet what the lower court will do with these instructions. Because cases often settle, we may never know. Also, there are different Courts of Appeals around the country, and they do not always agree. However, for now, Noble v. NALC is a tool candidates for union office can use to get their message out in union publications – and a warning to be strategic about what to request.