Conille v. Council 93 ( 2020 )

United States Court of Appeals
For the First Circuit
No. 18-1038
PHARAMOND CONILLE; YVES RIGAUD; MICHELET AUGUSTE; JACQUES
LARAQUE; GUY RAPHAEL; JEAN LOUIS; JAMES SHEA; ELGA BERNARD;
HODELIN AUBOURG; GABRIEL BERNARD; VERLEEN LEWIS; CARMESUEZ
MICHAUD; KALLOT JEAN-FRANCOIS; MONIQUE MODAN; JOESEPH BERLUS;
MARIE AVELINE FORTUNAT; VALENTINE DUBUISSON; FRANCHETTE
DORSAINVIL; SALLY ROGERS; STANLEY SIENKIEWICZ; YVONNE VASSELL;
LOCAL 402, AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL
EMPLOYEES,
Plaintiffs, Appellees,
v.
COUNCIL 93, AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL
EMPLOYEES; AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL
EMPLOYEES,
Defendants, Appellants.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. William G. Young, U.S. District Judge]
Before
Howard, Chief Judge,
Torruella and Kayatta, Circuit Judges.
Paul F. Kelly, with whom Sasha N. Gillin and Segal Roitman,
LLP were on brief for appellants.
Mark D. Stern, with whom Mark D. Stern P.C., Arthur L.
Fox, II, and Lobel, Novins & Lamont, LLP were on brief, for
appellees.
Michael J. Goldberg on brief for The Association for Union
Democracy, amicus curiae.
August 24, 2020
HOWARD, Chief Judge. This appeal requires us to consider
the proper role of the courts in adjudicating an intra-union
dispute that implicates both Titles I and IV of the Labor-
Management Reporting and Disclosure Act of 1959 ("LMRDA"). The
case arises out of a dispute between Council 93, a regional
division of the American Federation of State, County and Municipal
Employees ("AFSCME"), and one of its local divisions, Local 402,
over the allocation of seats on Council 93's governing executive
board. The plaintiffs, Pharamond Conille and other members of
Local 402, brought suit in the District of Massachusetts, alleging
that the allocation of seats on the executive board violated their
right to an equal vote under both Title I of the LMRDA, 29 U.S.C.
§ 411, and the AFSCME constitution. The district court agreed and
ordered Council 93 to reconstitute its executive board "within one
year so that there may be proper proportional representation for
its constituent locals and members." Conille v. Council 93, Am.
Fed'n of State, Cty. & Mun. Emps., No. 17-11495, 2018 WL 2223672,
at *5 (D. Mass. May 15, 2018).
After careful consideration, we conclude that, even if
the composition of Council 93's executive board violates the equal
rights provision of Title I, the remedy for any such violation
can, in the first instance, be implemented only by the Secretary
of Labor under the remedial provisions of Title IV. We also
conclude that the plaintiffs have not shown that the union
- 3 -
constitution supports their claims. We therefore reverse the
district court's judgment on all claims except for Council 93's
counterclaim, and remand for further proceedings.
I.
We begin with a sketch of AFSCME's organizational
structure and the pertinent facts underlying this case.
A.
AFSCME is a large international trade union organization
under the umbrella of the American Federation of Labor-Congress of
Industrial Organizations ("AFL-CIO"). Representing public service
employees throughout the United States, AFSCME is governed by a
biennial convention composed of delegates elected by local unions
in proportion to their membership. These delegates in turn elect
an executive board composed of a president, a secretary-treasurer,
and thirty-four vice presidents representing AFSCME's twenty
geographical and five organizational legislative districts.
Council 93 is the governing body for the legislative district
covering Northern New England, and the Northern New England
legislative district is represented by one vice president on the
AFSCME executive board. The AFSCME executive board manages the
day-to-day affairs of the union and serves as the union's governing
body when the convention is not in session. Plaintiffs do not
challenge the manner in which AFSCME selects its governing bodies
and officers. Rather, they train their criticism on the methods
- 4 -
by which the governing bodies and officers of Council 93 are
selected.
As the intermediate body governing of one of AFSCME's
legislative districts, Council 93 is tasked with coordinating the
activities of AFSCME's local unions ("locals"), which are the
narrowest formally recognized components of AFSCME. Council 93
covers the Northern New England legislative district and
represents locals in Maine, Massachusetts, New Hampshire, and
Vermont. It consists of approximately 500 affiliated locals,
representing approximately 45,000 members. Like AFSCME,
Council 93 is governed by a biennial convention composed of
delegates representing the locals that make up Council 93 and an
executive board elected by the convention delegates.
In choosing Council officers, voting begins at the local
union level, where each qualified union member votes to select the
delegates representing that local. Plaintiffs offer no criticism
of that process. The delegates then attend a regular convention
every two years which, while in session, governs Council 93. They
may also attend legislative conferences and special conventions.
At the regular conventions, all delegates vote on all matters of
union governance and possess the power to amend Council 93's
governing constitution. They also select by a vote of all
delegates the five principal officers of the Council (president,
executive vice president, recording secretary, secretary-
- 5 -
treasurer, and sergeant-at-arms). For these decisions, each
delegate's vote is weighted to approximate the number of members
of the local represented by the delegate. Plaintiffs do not
criticize this process, either. The five chosen principal officers
lead the Council's executive board, to which forty-five vice
presidents also belong. That executive board is responsible for
the day-to-day governance of Council 93, and it is the selection
of those vice presidents upon which plaintiffs focus their
criticism.
To choose the vice presidents, Council 93's constitution
divides the locals into thirteen legislative districts -- nine
geographic and four organizational. These legislative districts
do not have independent governing bodies; rather, they function
solely as a way to divide delegates to nominate and elect members
of the executive board. The Council 93 constitution allocates a
specific number of vice president positions to each legislative
district. The number allocated to each district bears little, if
any, relationship to the number of members in that district.
Rather, the allocations are artifacts of agreements made over time
as locals have joined the Council. For example, a single vice
president is chosen by the delegates representing over 1,800
members in the Vermont district, while four vice presidents are
chosen by the delegates representing 1,500 employees in a
- 6 -
"Department of Mental Health" legislative district. It is this
type of disproportionality that triggers plaintiffs' displeasure.
B.
Pharamond Conille and the other plaintiffs are members
of the now-deactivated Local 402, a local labor union representing
employees of the Massachusetts Department of Developmental
Services ("DDS") who worked at the Walter E. Fernald State School
in Waverly, Massachusetts. AFSCME chartered Local 402 in 1953,
and until its deactivation, Local 402 maintained an affiliation
with both AFSCME and Council 93. Conille and non-party Raymond
McKinnon were the vice president and president, respectively, of
Local 402 at the time of its deactivation in March 2017. Conille,
2018 WL 2223672, at *2. Conille also sat on the Council 93
executive board. Id. at *3–4.
C.
In February 2017, the Fernald Development Center closed
permanently, and its employees, including the members of
Local 402, were transferred to other state facilities and
programs. Id. at *2-3. After Fernald's closure, certain members
of the executive board for Council 93 recommended to AFSCME that
Local 402 be deactivated because there were no longer any union
members working within Local 402's jurisdiction. Id.Conille and McKinnon objected to the deactivation; both
wrote to several individuals within Council 93, as well as to
- 7 -
AFSCME's Charter and Constitution Department, opposing
deactivation and requesting that Local 402's charter be updated to
include several community worksites that Local 402 had been
representing. Id. at *3. AFSCME declined this request on the
basis that Council 93 opposed it. Id. In May 2017, a special
assistant to the executive director of Council 93 sent an email to
DDS's human resources department advising DDS of Local 402's
deactivation. Conille, 2018 WL 2223672, at *3. A few weeks after
this deactivation notice, Local 402 received an additional notice
ordering it to return funds and property to Council 93. Id.Shortly thereafter, McKinnon filed charges with AFSCME's
judicial panel against Council 93 for interfering with the ability
of Local 402's officers to perform their duties. Id. The judicial
panel ultimately declined to take any action based on these
charges, and the AFSCME secretary-treasurer instead issued a
notice requiring the transfer of funds and property from the
deactivated Local 402 to AFSCME. AFSCME also responded to
objections lodged by Local 402 with a letter stating that the
decision to deactivate Local 402 was made in accordance with the
AFSCME constitution. Conille, 2018 WL 2223672, at *3. As a result
of the deactivation, the charters of two other local unions --
Local 646 and Local 1730 -- were amended to allow those locals to
absorb the members of Local 402. Id.- 8 -
Conille became a member of Local 646 and, as a result,
found his Council 93 executive board post in jeopardy. The
Council 93 constitution prohibits two members from the same local
from sitting on the executive board at the same time and one of
Local 646's members was already serving on Council 93's executive
board. Conille asserts that, at the end of the June 2017 executive
board meeting, members of the board informed him that it would be
his last meeting because Local 646 already had a member on the
board. Conille, 2018 WL 2223672, at *4. Conille objected and,
after the meeting, sent a letter to Council 93's president and
vice president, arguing that their actions violated the AFSCME
constitution and demanding that he be allowed to finish his term.
Id. The president denied telling Conille that he would be removed
and stated that the status of Conille's seat would be discussed at
the next scheduled Council 93 executive board meeting. Id.II.
In August 2017, members of Local 402 filed a five-count
complaint for injunctive, declaratory, and other relief against
AFSCME and Council 93 on behalf of themselves and Local 402
challenging the local's deactivation and the manner in which vice
presidents are elected to the Council 93 executive board. AFSCME
in turn filed a counterclaim seeking to compel the plaintiffs to
turn over any assets, accounts, books, and records of the
deactivated local as required by the AFSCME constitution.
- 9 -
After a two-day bench trial, the district court issued
an oral decision, subsequently supplemented by a written order of
findings of fact and conclusions of law. Conille, 2018 WL 2223672.
With respect to the challenge to the manner in which vice
presidents are elected to Council 93's executive board, the
district court concluded that proportionality of representation
"simply did not exist" on the board and that, instead,
"[r]epresentation seems to be nothing more than a hodge-podge of
historic deals made as unionized employees became locals within
AFSCME." Id. at *4. The court also ordered that all interim
rulings of the incumbent board would be "provisional," unless and
until approved by a new, proportionately constituted board. See
Id. at *1. Though it did not find that strict proportionality was
required, the district court held that there "must be a neutral
principle that would justify the gross disproportionality between
membership and board seats on Council 93 allocated to the
legislative districts." Id. at *5. To remedy the failing that it
discerned, the district court ordered Council 93 to reconstitute
the executive board "so that there may be proper proportional
representation for its constituent locals and members." Id.As to the deactivation of Local 402, the district court
found that the plaintiffs had failed to exhaust internal union
remedies because they had not requested a formal appeal to the
international executive board. Id. It also held that Local 402
- 10 -
was properly deactivated in accordance with the AFSCME
constitution and the LMRDA and that it would defer to Council 93's
and AFSCME's reasoning for deactivating the local. Conille, 2018
WL 2223672, at *6. Because Local 402 agreed during trial to turn
over funds and property to AFSCME if the court concluded that the
deactivation was proper, the district court dismissed AFSCME's
counterclaim as moot. Id. at *7.
Council 93 and AFSCME timely appealed the district
court's rulings with respect to the composition of Council 93's
executive board and the dismissal of the counterclaim. The
plaintiffs separately appealed the district court's findings with
respect to Local 402's deactivation.1 In deciding the plaintiffs'
appeal with respect to Local 402's deactivation, we concluded that
"Local 402 exercised its right to appeal to the [international
executive board]." Conille v. Council 93, Am. Fed'n of State,
Cty. & Mun. Emps., 935 F.3d 1, 9 (1st Cir. 2019). "The fact that
Local 402 was never afforded an appeal is a breach of contract,
actionable under Section 301(a) of the [Labor Management Relations
Act]." Id. We remanded that portion of the case to the district
court to order AFSCME to either rescind Local 402's deactivation
or proceed in the ordinary course to hear the appeal. Id. Because
AFSCME's counterclaim depends on the determination of whether
1In an order issued during the pendency of this appeal, we
allowed the plaintiffs' appeal to proceed separately.
- 11 -
Local 402's deactivation was proper, any claim regarding failure
to return the funds is not yet ripe, so we accordingly affirm the
denial of the counterclaim and direct the district court to dismiss
the counterclaim without prejudice.
III.
We focus our attention on the plaintiffs' claim that the
allocation of seats on Council 93's executive board violates the
guarantees of equal protection and the right to vote that
plaintiffs say are codified in Title I of the LMRDA, 29 U.S.C.
§ 411(a)(1), and in the AFSCME constitution. The plaintiffs say
that these guarantees have been breached because the allocation is
neither proportional to the membership of each group of locals nor
governed by a neutral principle. The parties have not objected to
the district court's findings of fact. Consequently, in evaluating
this claim, we accept the district court's factual determinations
and will review de novo the district court's construction of the
text of the LMRDA and the union constitution. See Buntin v. City
of Boston, 857 F.3d 69, 72 (1st Cir. 2017) ("Because the question
is one of statutory interpretation, we exercise de novo review.");
Calderón-Ortega v. United States, 753 F.3d 250, 252 (1st Cir. 2014)
("[W]e review the trier's conclusions of law de novo.").
A.
Originally enacted in 1959, the LMRDA "was Congress'
first major attempt to regulate the internal affairs of labor
- 12 -
unions." Local No. 82, Furniture & Piano Moving, Furniture Store
Drivers v. Crowley, 467 U.S. 526, 528 (1984). It was designed to
"protect[] the equal rights of union members to participate in the
internal affairs of their unions" and "to eliminate or prevent
improper practices on the part of labor organizations." McCafferty
v. Local 254, Serv. Emps. Int'l Union, 186 F.3d 52, 57 (1st Cir.
1999) (quoting 29 U.S.C. § 401).
As relevant here, the LMRDA includes two separate
provisions, located in Titles I and IV, regulating a union's
internal governance structure and the conduct of its elections.
The first, contained in Title I, the so-called "Labor Bill of
Rights," guarantees to all union members "equal rights and
privileges within [the] organization to nominate candidates, to
vote in elections or referendums . . . , and to participate in the
deliberations and voting upon the business of such meetings,
subject to reasonable rules and regulations in such organization's
constitution and bylaws." 29 U.S.C. § 411(a)(1). As the name
suggests, the focus of Title I is to ensure equal treatment among
union members and to guarantee union members' rights to speak and
assemble without fear of improper retaliation or discipline from
within the labor organization. McCafferty, 186 F.3d at 57 (citing
Molina v. Union de Trabajadores de Muelles y Ramas Anexas,
Local 1740, 762 F.2d 166, 167 (1st Cir. 1985)); cf. United
Steelworkers v. Sadlowski, 457 U.S. 102, 109 (1982) ("[W]e do not
- 13 -
believe that [Title I] should be read as incorporating the entire
body of First Amendment law, so that the scope of protections
afforded by the statute coincides with the protections afforded by
the [federal] Constitution."). By its terms, Title I supersedes
any contrary provision in a union's internal governance documents
and grants individual union members the right to sue in federal
court to enforce its guarantees. 29 U.S.C. § 411(a)(4), (b).
While Title I establishes the basic rights to which all
union members are entitled, Title IV "sets out detailed
regulations 'aimed solely at protecting union democracy through
free and democratic elections.'" McCafferty, 186 F.3d at 57(quoting Molina, 762 F.3d at 167). Most relevant to our present
inquiry, Title IV provides that "[o]fficers of intermediate bodies
. . . shall be elected . . . by secret ballot among the members in
good standing or by labor organization officers representative of
such members." 29 U.S.C. § 481(d). Title IV also sets forth
certain minimum requirements for union elections, including the
timing and manner of elections for union officers at the national,
intermediate, and local levels. Id.; see also Am. Fed'n of
Musicians v. Wittstein, 379 U.S. 171, 181 (1964) ("Title IV
contains elaborate statutory safeguards for the election of union
officers."); Harrington v. Chao, 280 F.3d 50, 53 (1st Cir. 2002)
("Title IV of the LMRDA . . . establishes minimum standards for
the election of union officers." (citation omitted)). As for
- 14 -
enforcing these rights, "[the] primary responsibility . . . [is]
lodged with the Secretary of Labor." Crowley, 467 U.S. at 528;
see also Int'l Org. of Masters v. Brown, 498 U.S. 466, 476 (1991)
(noting that, with the exception of the union's obligation to mail
candidates' campaign literature, "other rights created by Title IV
. . . are judicially enforceable only in actions brought by the
Secretary of Labor"); Wirtz v. Local 153, Glass Bottle Blowers
Ass'n, 389 U.S. 463, 471 (1968) ("In the end there emerged a
general congressional policy to allow unions great latitude in
resolving their own internal controversies, and, where that fails,
to utilize the agencies of Government most familiar with union
problems to aid in bringing about a settlement through discussion
before resort to the courts." (internal quotations and citations
omitted)).
The statutory rights contained within Title I and
Title IV can sometimes seem to overlap, see Molina, 762 F.2d at
167-68, especially in cases like this one, where the alleged
wrongful conduct implicates both the structure of union elections
and the rights of individual union members to vote for the officers
of intermediate bodies. In terms of the substance of the rights
guaranteed, it is thus hardly surprising that the line between a
Title I and a Title IV violation is muddy. In Molina, we suggested
that a right was guaranteed by Title I if it was specific to an
individual member or group of members: "[t]he typical Title I
- 15 -
claim," we held, "involves an allegation of unequal treatment among
union members." Id. at 168 (citing Calhoon v. Harvey, 379 U.S.
134, 139 (1964)). Because the union member "[did] not argue that
a rule was applied unevenly but that an evenly applied rule was
activated for an improper purpose," the right asserted derived
from Title IV, rather than from Title I. Id. at 169; see also
Fritsch v. Dist. Council No. 9, Bhd. of Painters, 493 F.2d 1061,
1063 (2d Cir. 1974) ("[T]he essence of Title I is the command not
to discriminate against members and classes of members in their
right to vote and nominate."). In other words, Molina requires
that we ask whether the violation asserted is personal to the
individual union member plaintiff or is instead shared by all
members who are entitled to representation by a particular body.
This case is something of a hybrid. It alleges that
specific groups of members -- those in certain locals -- are harmed
by the policy that could arguably be said to deny them equal
representation, à la Title I. Conversely, the election structure
applies evenly to all past, present, and future elections writ
large and, as a rule, may not have been enacted to further any
proper purpose, which suggests Title IV might be the better fit.
We need not parse this divide, however, because whether
the injury asserted is one that falls within Title I's guarantees
is not our sole inquiry. To decide whether the plaintiffs may
maintain an action under Title I, we also need to examine the
- 16 -
remedy they seek, as Title I contains a separate limitation on the
power of courts to resolve the dispute: the complaint must seek
"appropriate" relief under that Title. See Crowley, 467 U.S. at
538. Where that condition is not satisfied, "even when Title I
violations are properly alleged and proved," the suit cannot be
"maintained." Id. at 543.
Crowley makes clear the need to consider the
appropriateness of relief in determining the extent of our
jurisdiction under Title I. Id. ("[W]hether a Title I suit may
properly be maintained by individual union members . . . depends
on the nature of the relief sought."). At issue in Crowley was
whether, under Title I, union members who did not have dues
receipts could be prohibited from participating in the union
officer nomination process, and the district court entered an
injunction while a union election was ongoing to preserve its
jurisdiction to decide the issue. Id. at 531–32. The Supreme
Court reversed, holding that "such judicial interference in an
ongoing union election is not appropriate relief under" Title I.
Id. at 529. The ongoing nature of the elections, however, was
only one factor that contributed to the Court's conclusion that
the relief was inappropriate; the case did not turn on the fact
that the elections were ongoing per se. See id. at 546 (noting
that Title I suits may be maintained during ongoing elections).
Rather, Title I expressly limits itself only to cases where "relief
- 17 -
that may be ordered by a District Court" is "'appropriate' to any
given situation." Id.at 538 (emphasis added). The Court applied
that rule to find that the district court's injunction of an
ongoing election was inappropriate.
So, to decide the limits of our jurisdiction, we must
look to what makes relief "appropriate" under Title I. Crowley
reasoned that the enforcement and remedial provisions of Title I
cannot be interpreted in isolation but rather must be construed in
conjunction with the protections afforded in Title IV. See id. at
538–39. It then went on to discuss how broader remedial powers to
oversee elections have been vested with the Secretary of Labor
under Title IV. Id. at 539-40. It is these remedial powers that
can preclude relief under Title I. Like "post-election"
challenges to union elections, "Congress would [also] not have
considered" other remedies available under Title IV -- enjoining
an ongoing election, as was the case in Crowley, or "requiring and
judicially supervising a new election" -- "to be 'appropriate'
relief under Title I." Id. at 544. As the Court recognized:
nothing in the flurry of activity that
surrounded enactment of Title I . . .
indicates that Congress intended that Title to
reverse this consistent opposition to court
supervision of union elections. Although the
enactment of Title I offered additional
protection to union members, including the
establishment of various statutory safeguards
effective during the course of a union
election, there is no direct evidence to
suggest that Congress believed that
- 18 -
enforcement of Title I would either require or
allow courts to pre-empt the expertise of the
Secretary and supervise their own elections.
Id. at 545–46 (citations omitted). To be sure, the exclusivity
provision of Title IV, codified in 29 U.S.C. § 483, applies on its
face only to challenges to past elections. However, the Court in
Crowley rejected a reading of this section that would allow
individual union members to seek relief in a court, rather than
from the Secretary of Labor, for alleged violations that implicated
both Title I and Title IV, as long as those members were not
explicitly seeking to undo a completed election. Such a reading
would necessarily require the courts, in cases like this one, to
"pre-empt the expertise of the Secretary and supervise their own
elections." Id
Indeed, the remedy sought and awarded by the district
court in this case far exceeded what courts can do in Title I
cases. First, by deeming actions of the incumbent board
provisional and subject to ratification by a later board, the
district court's remedy effectively deprives the prior election of
its legitimacy and full effect. Second, by ordering a newly
constituted board, the make-up of which is subject to the court's
approval, the remedy effectively puts the district court in the
position of supervising a new election with significant discretion
to approve, or not, its processes and results. See Crowley, 467
U.S. at 548 (discussing how a "pre-election challenge" asking "the
- 19 -
court to enjoin the union from preparing for or conducting any
election until the rules [a]re revised" is similarly barred (citing
Calhoon, 379 U.S. 134 (1964))); Knisley v. Teamsters Local 654,
844 F.2d 387, 390 (6th Cir. 1988) ("Title IV also precludes suits
brought under Title I where a plaintiff is challenging the validity
of an upcoming election and is seeking an injunction against that
election." (citing Crowley, 467 U.S. at 551)). For orders
"directing an election," 29 U.S.C. § 482(d), "challenging an
election already conducted," id. § 483, or the equivalent thereof,
the remedy is committed to the Secretary to pursue under Title IV.
In such cases, a Title I suit cannot properly be maintained, and
the case must be dismissed. See BLE Int'l Reform Comm. v. Sytsma,
802 F.2d 180, 186 (6th Cir. 1986) ("If Title IV rights are
implicated, resulting in an overlap between Title IV and Title I
rights, then Crowley requires the litigant to utilize the
enforcement procedures in [Title IV]."); see also Calhoon, 379
U.S. at 140 ("Section 402 of Title IV . . . sets up an exclusive
method for protecting Title IV rights, by permitting an individual
member to file a complaint with the Secretary of Labor . . .");
Bradley v. Am. Postal Workers Union, 962 F.2d 800, 802 (8th Cir.
1992) ("If a lawsuit alleges Title I violations, but is, in effect,
a Title IV suit, the suit has been improperly brought, and the
court has no jurisdiction over the action.").
- 20 -
Our conclusion that the remedy sought is not appropriate
under Title I is consistent with our strong policy of not
interfering in internal union matters. See, e.g., Dow v. United
Bhd. of Carpenters and Joiners, 1 F.3d 56, 58 (1st Cir. 1993) ("It
is common ground that a labor union's internal affairs comprise an
enclave best kept free from judicial intrusion."); Local No. 48,
United Bhd. of Carpenters & Joiners v. United Bhd. of Carpenters
& Joiners, 920 F.2d 1047, 1051 (1st Cir. 1990) ("There is a well-
established, soundly based policy of avoiding unnecessary judicial
intrusion into the affairs of labor unions. . . . While the LMRDA
is intended to protect union members against overreaching by their
leaders, we have long since settled that the statute does not
comprise a 'license for judicial interference in the internal
affairs of the union.'" (citations omitted) (quoting Howard v.
United Ass'n of Journeymen & Apprentices, Local No. 131, 560 F.2d
17, 21 (1st Cir. 1977))).
Our conclusion is also reinforced by the fact that, if
the composition of the Executive Board violates the LMRDA, an
adequate remedy exists under Title IV. The LMRDA vests in the
Secretary of Labor the authority to oversee the internal governance
of a union, 29 U.S.C. § 482, including authority to determine
whether the structure of weighted delegates used by Council 93 to
- 21 -
elect the executive board vice presidents can fairly be said to be
"representative of [union] members." Id. § 481(d).2
B.
In the alternative, plaintiffs contend that the
structure of Council 93's Executive Board violates the AFSCME
constitution, particularly Paragraph 4 of its "Bill of Rights,"3
which provides that "[m]embers shall have the right to fair and
democratic elections, at all levels of the union. This includes
due notice of nominations and elections, equal opportunity for
competing candidates, and proper election procedures which shall
be constitutionally specified."
2 Council 93 also argues that the plaintiffs are not entitled
to relief because they failed to exhaust internal union remedies
before seeking judicial review. The district court's lack of
findings on exhaustion, at most, can be taken to mean that
exhaustion was not required under the discretionary exhaustion
provisions of Title I. However, Title IV requires exhaustion of
internal remedies before union members may seek redress from the
Secretary of Labor. 29 U.S.C. § 482(a). Because we direct that
the LMRDA claim be dismissed in its entirety with the option to
seek review from the Secretary of Labor under Title IV, we decline
to exercise jurisdiction to determine whether Title IV's mandatory
exhaustion requirements have been satisfied.
3 Plaintiffs also contended in the district court that they
are entitled to equal protection rights in officer elections under
Paragraph 7 of the AFSCME Bill of Rights, which states that "[a]ll
members shall have an equal right to vote and each vote cast shall
be of equal weight." However, they advance only their argument
under Paragraph 4 (the right to fair and democratic elections) on
appeal. Nevertheless, defendants focus on plaintiffs' allegations
under Paragraph 7, arguing that the union's interpretation of
Paragraph 7 is reasonable.
- 22 -
The AFSCME constitution requires internal exhaustion
prior to bringing a claim in court under one of its provisions.
Title IV of the LMRDA also requires exhaustion of internal union
remedies by parties alleging a "violation of the constitution and
bylaws of the labor organization pertaining to the election and
removal of officers." 29 U.S.C. § 482(a).4 Although the record
is not entirely clear, we will assume, favorably to plaintiffs,
that they first unsuccessfully pursued their claim internally, as
4 We have jurisdiction to decide some disputes between a
parent and subsidiary union body under the union's constitution
under the National Labor Relations Act, 29 U.S.C. § 185. See
United Ass'n of Journeymen & Apprentices v. Local 334, United Ass'n
of Journeymen & Apprentices, 452 U.S. 615, 619, 627 (1981)
(concluding that, because union constitutions are "labor
contracts," the court has jurisdiction to enforce their terms);
Lydon v. Local 103, Int'l Bhd. of Elec. Workers, 770 F.3d 48, 54
(1st Cir. 2014) (same); cf. Padilla-Gonzalez v. Local 1575, 635 F.
Supp. 2d 105, 109-110 (D.P.R. 2009) (concluding that a local's
constitution is a contract between a union and its members, not
between two unions). Because we ultimately conclude that
plaintiffs have failed as a matter of law on their claim, we need
not decide whether Title IV is also the exclusive remedy for this
type of constitutional claim or whether § 185 provides an
exception. See Cowels v. FBI, 936 F.3d 62, 67 (1st Cir. 2019)
("Where a question of statutory jurisdiction is complex, but the
merits of the appeal are 'easily resolved against the party
invoking [] jurisdiction,' we can assume jurisdiction for purposes
of deciding the appeal." (quoting Méndez-Núñez v. Fin. Oversight
& Mgmt. Bd. (In re Fin. Oversight & Mgmt. Bd.), 916 F.3d 98, 114
n.13 (1st Cir. 2019)) (alteration in original)). Compare 29 U.S.C.
§ 481(e) (characterizing the right for elections to "be conducted
in accordance with the constitution and bylaws of such
organization" as a right under Title IV, to be enforced by the
Secretary of Labor), with id. § 483 ("Existing rights and remedies
to enforce the constitution and bylaws of a labor organization
with respect to elections prior to the conduct thereof shall not
be affected by the provisions of this subchapter.").
- 23 -
required under the union constitution, before seeking redress in
the courts.
The merits of plaintiffs' claim under the AFSCME
constitution turns on the question of the proper interpretation of
Paragraphs 4 and 7 of the constitution's Bill of Rights. When
reviewing a union's interpretation of its own constitution, we
defer to that interpretation unless it is plainly unreasonable.
See Local No. 48, 920 F.2d at 1052 ("[T]he critical question,
uniformly, is whether the stated reason for the action was facially
sufficient under the instrument of governance, or put another way,
whether there was arguable authority for the officer's act from
the officer's viewpoint at the time." (internal quotation marks
omitted)).
We begin with the constitution's text, see United States
v. Charter Int'l Oil Co., 83 F.3d 510, 517 (1st Cir. 1996), noting
at the outset the absence of any express guarantee of equal or
proportional representation on its executive board or on any of
its or its subsidiaries' governing bodies, including the
subsidiaries' executive boards. This silence contrasts with the
text of paragraph 7 of the AFSCME Bill of Rights, which states
that "[a]ll members shall have an equal right to vote and each
vote cast shall be of equal weight" specifically on issues
pertaining to the collective bargaining of contracts, memoranda of
understanding, agreements affecting members' wages, hours, or any
- 24 -
other terms of employment. The union thus knew precisely how to
require equally weighted votes on an issue within the constitution
if it wished to do so; instead, it chose to use only the term "fair
and democratic" when referring to how elections of its officers
must be conducted.
So, we ask if this term by itself renders supererogatory
the need to include explicitly the right to proportional
representation or an equal vote. See Ramos v. Louisiana, 140 S.
Ct. 1390, 1400 (2020) (suggesting that, with respect to certain
rights, the absence of an explicit grant of that right in the text
of the Constitution does not imply the right does not exist, but
rather, supports the inference that the right "was so plainly
included" that stating it explicitly would be "surplusage").
We think that it does not. We can assume the term
"democratic," by itself, implies a relatively equal right to vote
on such matters as one is entitled to vote on, but it is too much
of a stretch to say that it must also imply proportional
representation on the executive board. The United States is
generally considered to be a democracy in normal parlance,
notwithstanding the effectively disproportionate representation in
the Senate and the Electoral College. See Lyman v. Baker, 954
F.3d 351, 371 (1st Cir. 2020) ("The United States' system of
representative democracy [includes] . . . the Electoral College
and . . . Senate."). Similarly, the term "fair" may suggest some
- 25 -
restraint on the procedures used for voting. Paragraph 4 thus
requires, as examples, "due notice of nominations and elections,
equal opportunity for competing candidates, and proper election
procedures which shall be constitutionally specified." While this
list is non-exhaustive, it would have been rather simple for the
union to include within it the requirement of equal or proportional
representation on all governing bodies, as it did in Paragraph 7
for labor concerns and within this paragraph for competing
candidates. Yet, it did not.
The defendants' position that the voting system used to
select officers of Council 93's executive board is fair finds
further support in the fact that those procedures themselves are
approved and subject to change by the convention, in which voting
is weighted just as plaintiffs would have it be -- proportionate
weight is assigned to the votes of convention delegates based on
the number of members represented.
Moreover, the actual behavior being challenged is not
precisely an undemocratic or unfair election as a result of an
unequally weighted vote. In choosing delegates to the Council 93
convention, union member votes are weighted equally, and these
conventions, like a parliament, carry out many of the important
legislative powers of the union. Similarly, the five senior
officers on Council 93's executive board are chosen according to
an equally weighted vote of convention delegates, in much the way
- 26 -
that a prime minister might be chosen by a parliament composed of
equally weighted votes. It is only the selection of vice
presidents to represent the legislative districts that is being
challenged.
We have a difficult time saying that the members' right
to "fair and democratic elections" necessarily guarantees equal
representation on this subordinate body of executive officials.
That a cabinet may be made up of appointed officials who do not
proportionally reflect the full constituency does not mean that
the underlying election was not fair and democratic. The
constitutional clause at issue here guarantees only that, when
members vote, the process is fair and democratic. The plaintiffs
have not contended that their actual elections are otherwise, only
that every officer must proportionally represent the constituency.
As to that contention, they point to nothing in their constitution
that imposes that requirement on Council 93 or any of AFSCME's
subordinate bodies.
AFSCME itself also allocates seats and voting for
positions on its own executive board in a manner that belies equal
representation of every union member, as plaintiffs concede.
Although plaintiffs suggest that the ASFCME executive board is
somehow more proportional because it is a "hybrid house-senate-
like" system, this is nothing more than a particular type of
disproportionality. And plaintiffs do not offer any basis in the
- 27 -
AFSCME constitution to suggest how much proportionality is enough
to be "fair and democratic." One would expect to find some good
reason why AFSCME would view its constitution as outlawing a
practice by the Council that it allows itself. Plaintiffs offer
no such reason, and we are not willing to create one sua sponte,
especially where we are to defer to AFSCME's reasonable
interpretations of its constitution. See, e.g., Vestal v. Haffa,
451 F.2d 706, 709 (6th Cir. 1971) ("Courts are reluctant to
substitute their judgment for that of union officials in the
interpretation of a union constitution, and will interfere only
where the official's interpretation is not fair or reasonable.");
cf. Coleman v. Miller, 307 U.S. 433, 454-55 (1939) (holding that
a "lack of satisfactory criteria for a judicial determination,"
inter alia, favors deference to other bodies in deciding what
counts as a "Republican Form of Government").
Of course, the district court reasoned that the voting
structure need not be precisely proportional but should at least
have "some neutral principle that justifies weighted voting," and
it found no such rationale besides a "hodge-podge of historic
deals." But negotiation and deal-work are the very heart of what
unions do. In fact, plaintiffs imply the need to allow unions to
make such compromises by suggesting that AFSCME's executive board
representation is not problematic because it is like the U.S. House
and Senate, which itself is nothing more than an historic deal.
- 28 -
See Ronald J. Krotoszynski, Jr., Reconsidering the Nondelegation
Doctrine: Universal Service, the Power to Tax, and the Ratification
Doctrine, 80 Ind. L.J. 239, 252 (2005) (discussing how the
apportionment of seats in the U.S. House and Senate was part of a
complicated "deal" involving the balance of power between
competing factions). While we recognize that Council 93 is
constrained in the deals it can negotiate by the AFSCME
constitution, we are hesitant to retroactively read the terms "fair
and democratic" to invalidate the bargained-for exchanges that the
union members agreed to over the years, especially when AFSCME has
made no indication that it believes the term carries such weight
and has opted not to restrict its councils in this way. If AFSCME
had wanted to tie the hands of its councils in this matter, it
certainly could have stepped in and chosen not to approve the
provisions in the Council 93 constitution incorporating these
deals. Its acquiescence is entitled to some consideration.
For all of these reasons, we reject the plaintiffs' claim
that the AFSCME constitution can only be reasonably read as
outlawing the practice adopted by the Council 93 convention for
filling positions on the executive board.
IV. CONCLUSION
For the foregoing reasons, we reverse the judgment of
the district court on all but the counterclaim, which we affirm on
other grounds. We leave it to plaintiffs, should they so desire,
- 29 -
to seek such if any relief from the Secretary of Labor as the
Secretary may deem appropriate under Title IV of the LMDRA. The
parties shall bear their own costs of this appeal.
- 30 -