Alex Corns v. Laborers International Union

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ALEX CORNS, No. 11-15737
Plaintiff-Appellant,
D.C. No.
v. 3:09-cv-04403-
MHP
LABORERS INTERNATIONAL UNION
OF NORTH AMERICA ; NORTHERN
CALIFORNIA DISTRICT COUNCIL OF OPINION
LABORERS; HOD CARRIERS LOCAL
UNION 166, affiliated with the
Laborers International Union of
North America,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of California
Marilyn H. Patel, Senior District Judge, Presiding
Argued and Submitted
July 20, 2012—San Francisco, California
Filed March 7, 2013
2 CORNS V . LABORERS INT ’L UNION
Before: Richard A. Paez and Jay S. Bybee, Circuit Judges,
and Sarah S. Vance, Chief District Judge.*
Opinion by Judge Paez;
Concurrence by Judge Bybee
SUMMARY**
Labor Law
The panel affirmed in part and reversed in part the district
court’s summary judgment in a former union member’s
action under the Labor-Management Reporting and
Disclosure Act, challenging an organizing fee and a dues
increase imposed on local union members by the local’s
umbrella labor organizations even though the local’s
members did not approve these fees by a secret ballot vote, as
provided in LMRDA § 101(a)(3)(A).
Affirming in part, the panel held that the plain text of the
LMRDA authorizes a labor organization, other than a local
labor organization or a federation of national or international
labor organizations, to levy assessments or increase dues or
initiation fees payable by its members by any of the
procedures enumerated in LMRDA § 101(a)(3)(B), provided
*
The Honorable Sarah S. Vance, Chief District Judge for the United
States District Court for the Eastern District of Louisiana, sitting by
designation.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
CORNS V . LABORERS INT ’L UNION 3
that union members’ rights are adequately protected in the
approval process. The panel held that the defendant
international union complied with the LMRDA when it
enacted an organizing fee, applicable to all of its members
working in the construction industry, following a majority
vote of its delegates at a national convention.
Reversing in part, the panel held that another defendant
labor organization, which functioned as an intermediate body
between the international union and a group of local unions,
lacked the statutory authority to ratify a dues increase because
the local union members were not members of that
organization.
Concurring in the judgment, Judge Bybee wrote
separately to express his differing views about the proper
interpretation of LMRDA § 101(a)(3). He wrote that
subsections (A) and (B) of § 101(a)(3) do not offer alternative
methods for imposing levies, but rather offer the only lawful
methods for imposing dues and fees payable by members of
distinct types of labor organizations. Accordingly, levies
payable only by members of a local union can only be
lawfully approved under the procedures provided in
subsection (A), requiring approval by a secret ballot vote of
the local.
4 CORNS V . LABORERS INT ’L UNION
COUNSEL
Christopher W. Katzenbach (argued), Katzenbach &
Khtikian, San Francisco, California, for Plaintiff-Appellant.
Roberta D. Perkins (argued), Weinberg, Roger & Rosenfeld,
Alameda, California, for Defendants-Appellees.
OPINION
PAEZ, Circuit Judge:
Plaintiff Alex Corns, a now-retired member of Defendant
Hod Carriers Local Union No. 166 (“Local 166”), filed this
lawsuit under § 101(a)(3) of the Labor-Management
Reporting and Disclosure Act (“LMRDA”), 29 U.S.C.
§ 411(a)(3), to challenge the legality of an organizing fee and
a dues increase imposed on Local 166 members by the local
union’s umbrella labor organizations. Corns alleges that the
labor organizations could not extract these fees without the
approval of the Local 166 membership by a secret ballot vote,
as provided in § 101(a)(3)(A). We hold that the plain text of
the LMRDA authorizes a labor organization, other than a
local labor organization or a federation of national or
international labor organizations, to levy assessments or
increase dues or initiation fees payable by its members by any
of the procedures enumerated in § 101(a)(3)(B), provided that
union members’ rights are adequately protected in the
approval process.
Because Defendant Laborers International Union of North
America (“LIUNA”) satisfied both prerequisites in this case,
we conclude that it complied with the LMRDA when it
CORNS V . LABORERS INT ’L UNION 5
enacted an organizing fee, applicable to all of its members
working in the construction industry, following a majority
vote of its delegates at a general convention. With respect to
the dues increase approved by Defendant Northern California
District Council of Laborers (“NCDCL”), however, we
conclude that the NCDCL lacked the statutory authority to
ratify such an increase because Local 166 members are not,
by the express terms of the International Union and Uniform
District Council constitutions, members of the NCDCL.
Accordingly, we affirm in part, reverse in part, and remand
for further proceedings consistent with this opinion.
I. BACKGROUND
LIUNA is an international labor union that represents
employees in the construction industry. The NCDCL
functions as an intermediate body between LIUNA and
fifteen Northern California local unions affiliated with
LIUNA. Local 166, one of the local unions within the
NCDCL’s jurisdiction, represents masonry and plastering
employees in Alameda, Contra Costa, San Francisco, and San
Mateo counties.
A. The Union Hierarchy
We begin by describing the union hierarchy because our
determination of the legality of the actions undertaken by
LIUNA, the NCDCL, and Local 166 (collectively, “the
Unions”) requires an understanding of not only the Unions’
organizational structure, but also the source and scope of their
respective powers and obligations. LIUNA, which consists
of the members of its affiliated local unions, derives its
authority from the International Union Constitution. Int’l
6 CORNS V . LABORERS INT ’L UNION
Union Const. art. I, § 1.1 LIUNA’s primary purpose is to
protect and advance the welfare of its members by engaging
in collective bargaining with employers; improving members’
employment benefits and working conditions; implementing
programs, practices, and policies to enhance members’
employment opportunities; and participating in legal and
legislative activities that serve to benefit the union
membership. Id. art. II, § 1. To that end, it is empowered to
issue charters to subordinate bodies, including district
councils and local unions; establish policies for and on behalf
of itself and its subordinate bodies and members; and govern,
discipline, and regulate its subordinate bodies. Id. art. II, § 2.
Because LIUNA is the umbrella labor organization, all of its
affiliated district councils and local unions are bound by its
actions, and are obligated to comply with the Unions’
respective constitutions, including the International Union
Constitution, the Uniform District Council Constitution, and
the Uniform Local Union Constitution. Id. art. XVII, § 4.
The NCDCL, a subordinate body created by LIUNA
through a district council charter, “is charged with the
responsibility to unify all of the economic and other forces of
the affiliated Local Unions in its area, as a central
representative body of such Local Unions.” Unif. Dist.
Council Const. art. II, § 1. Fifteen local unions in Northern
California are affiliated with the NCDCL. As provided in
1
The parties filed excerpts of the Unions’ respective constitutions in the
district court. Following oral argument, we requested that the parties file
the full texts of the International Union Constitution, the Uniform District
Council Constitution, and the Uniform Local Union Constitution. We
deem it appropriate to take judicial notice of these documents. Fed. R.
Evid. 201(b), (c)(1), (d); see also United States v. Espinoza-M orales,
621 F.3d 1141, 1150 (9th Cir. 2010) (taking judicial notice of documents
submitted after oral argument).
CORNS V . LABORERS INT ’L UNION 7
Article XIX, § 5 of the International Union Constitution and
Article I, § 2 and Article IV, § 1 of the Uniform District
Council Constitution, the NCDCL’s membership consists of
delegates from its affiliated local unions.2 To effectuate its
purpose, the NCDCL possesses the constitutional authority
“[t]o negotiate, bargain for and enter into understandings and
agreements with employers, for and [on] behalf of its
affiliated Local Unions and to enforce and police the
observance thereof by employees and employers, Local
Unions and their members . . . .” Unif. Dist. Council Const.
art. II, § 2(d). The Uniform District Council Constitution also
empowers the NCDCL to establish and regulate the amount
of dues and initiation fees paid by members of its affiliated
local unions. Id. art. II, § 2(e). To increase dues or fees, the
NCDCL must convene a special convention at which
delegates vote on whether an increase is necessary for one or
more of the fifteen local unions. Id. art. VIII, § 2.
Local 166, an affiliate of LIUNA and the NCDCL, exists
for the purpose of “gathering under one banner all those that
work at the craft and calling of said International Union, in
accordance with the craft and territorial jurisdiction allotted
to each Local Union by its charter.” Unif. Local Union
Const. art. I, § 1. Pursuant to the Uniform Local Union
Constitution, Local 166 is authorized to establish rules,
2
The number of delegates from each local union is based, in part, on
membership. Unif. Dist. Council Const. art. IV, § 3. The elected local
union business manager is automatically a delegate to the NCDCL. Unif.
Local Union Const. art. IV, § 4(E)(11), art. VI, § 4(b). Local unions may
designate either the elected president or the elected secretary-treasurer as
an additional delegate. Id. art. VI, § 4(b). Other delegates, if necessary,
are elected by local union members as provided by the Uniform Local
Union Constitution. Id. Local 166 is represented by two of the NCDCL’s
sixty delegates.
8 CORNS V . LABORERS INT ’L UNION
policies, and practices; collectively bargain with employers;
and provide for the well-being and security of its members,
officers, and employees through the establishment of
insurance, health, and welfare benefit plans. Id. art. II, § 2.
Local 166 is also empowered to raise income from dues, fees,
and assessments payable by its members. Id. art. II, § 2(b).
Like the Uniform District Council Constitution, the Uniform
Local Union Constitution provides that dues and initiation
fees shall be established and regulated by the NCDCL. Id.
art. VIII, § 1. If, however, dues and initiation fees are not
established by the district council, Local 166 is authorized to
impose them by a secret ballot vote of the membership. Id.
art. VIII, § 2.
B. Local 166 Members’ Dues and Fees Structure
Local 166 members’ dues and fees are dictated by
multiple collective bargaining agreements, some of which
were negotiated by the NCDCL pursuant to its constitutional
authority. When members work within San Francisco, San
Mateo, Contra Costa, and Alameda counties, they work under
collective bargaining agreements negotiated by their local
union or the NCDCL (“the Local 166 Agreements”), or under
collective bargaining agreements negotiated by Hod Carriers
Local Union No. 36 (“Local 36”).3 Otherwise, they may
work under collective bargaining agreements negotiated by
3
At some point between March and May 2008, LIUNA’s international
president transferred the former members of Local 36, who had previously
merged with Laborers Local Union No. 270, to Local 166. Local 36’s
former members continued to work under collective bargaining
agreements that remained in effect following the merger of the two local
unions.
CORNS V . LABORERS INT ’L UNION 9
the NCDCL on behalf of multiple local unions in various
Northern California counties.
Local 166 members’ wages and dues rates vary depending
on the applicable collective bargaining agreement. Generally,
however, members pay union dues consisting of regular dues
(sometimes referred to as “counter dues”) in a fixed monthly
amount; working dues (sometimes referred to as “dues check-
off” or “supplemental dues”) in an amount that corresponds
with the hours each member works; and organizing fees in an
amount that varies depending on the location of the work and
the governing collective bargaining agreement. Individual
employers withhold these dues and fees from Local 166
members’ wages and, depending on the agreement, the
deductions are remitted to either Local 166’s Trust Funds or
the NCDCL’s Trust Fund.
C. LIUNA Organizing Fee
Corns challenges the organizing fee approved at LIUNA’s
2006 general convention. During the convention, LIUNA’s
delegates ratified Resolution 12, which required, among other
things, that every affiliated local union involved in the
construction industry pay $0.25 per hour, to be phased in over
the ensuing three years, to a regional organizing fund for all
hours worked by its members in construction. The regional
organizing funds were intended to finance activities designed
to increase LIUNA’s membership.
In accordance with Resolution 12, the LIUNA organizing
fee was incorporated into some of the collective bargaining
agreements covering Local 166 members. Thus, although
Local 166 members had not previously incurred an
organizing fee for work performed in San Francisco and San
10 CORNS V . LABORERS INT ’L UNION
Mateo counties, the 2008–10 San Francisco and San Mateo
Masonry Agreement included an organizing fee of $0.16 per
hour and the 2008–10 San Francisco and San Mateo
Plastering Agreement included an organizing fee of $0.25 per
hour.
Under three separate collective bargaining agreements
covering work performed in Alameda and Contra Costa
counties, Local 166 members paid separate fees used to fund
Local 166 organizing efforts. Specifically, under the
2005–07 Alameda and Contra Costa Masonry Agreements,
members paid an organizing fee of $0.60 per hour for work
performed under these agreements. Meanwhile, the 2005–07
Alameda and Contra Costa Plastering Agreement provided
for an organizing fee of $1.10 per hour for work performed
under this agreement. The organizing fees were carried over
into the renegotiated 2008–10 Alameda and Contra Costa
Plastering and Masonry Agreements.
D. The NCDCL Dues Increase
Corns also challenges dues increases included in the
2008–10 Local 166 Agreements, which included the San
Francisco and San Mateo Masonry Agreement, the San
Francisco and San Mateo Plastering Agreement, the Alameda
and Contra Costa Masonry Agreement, the Alameda and
Contra Costa Commercial Plastering Agreement, and the
Alameda and Contra Costa Residential Plastering Agreement.
At a general meeting held on June 20, 2008, the NCDCL
approved the 2008–10 Agreements, all of which included
wage and dues increases. The agreements went into effect on
July 1, 2008.
CORNS V . LABORERS INT ’L UNION 11
After receiving notice of the increases, Corns wrote
LIUNA’s general president to express his concern about the
imposition of a dues increase absent a secret ballot vote of the
local membership. The following day, the NCDCL’s
executive board proposed that a special convention be held on
September 19, 2008 to consider the dues increase included in
the 2008–10 Local 166 Agreements. The proposal was
presented to and approved by the NCDCL’s general delegates
at a meeting held on that same date.
Although the 2008–10 Local 166 Agreements had already
been ratified by the NCDCL, the agreements were presented
to Local 166 members at a general board meeting on June 26,
2008. Corns objected, requesting that a standing vote count
of the membership be taken to approve the new agreements.
A majority of Local 166 members voted in favor of the
2008–10 Local 166 Agreements by a standing vote.4
On August 8, 2008, the NCDCL provided notice of the
special convention to its delegates. At the special convention
held on September 19, 2008, the NCDCL’s delegates,
including two Local 166 representatives, voted unanimously
4
Local 166’s sergeant-at-arms conducted the standing vote, which
resulted in thirty votes in favor of the 2008–10 Local 166 Agreements and
twenty-nine votes against. Corns challenged the vote on the ground that
the sergeant-at-arms was the son of Local 166’s business manager. At the
business manager’s request, the NCDCL’s assistant business manager
requested the approval of the membership to take another standing vote
count. Following the membership’s approval of his request, the
membership also approved a request to permit an NCDCL executive board
member to take the count with the NCDCL’s assistant business manager.
The second standing vote resulted in thirty-six votes in favor of, and thirty
votes opposed to, the 2008–10 Local 166 Agreements.
12 CORNS V . LABORERS INT ’L UNION
to approve the dues increase included in the 2008–10 Local
166 Agreements.
Corns wrote a letter to LIUNA objecting to the increases
approved at the NCDCL special convention. LIUNA’s
general president responded to Corns on March 13, 2009,
explaining that LIUNA took the position that Local 166’s
dues were properly increased in accordance with the Uniform
District Council and Uniform Local Union constitutions.
E. Procedural Background
Corns then filed this lawsuit, seeking damages for the
increased dues and organizing fees deducted from his wages
as a member of Local 166, a declaration prohibiting the
NCDCL from exercising its power to impose dues increases
in accordance with the Uniform District Council and Uniform
Local Union constitutions, and injunctive relief. The parties
filed cross-motions for summary judgment. In denying
Corns’s motion for partial summary judgment and granting
the Unions’ motion, the district court concluded that
§ 101(a)(3) of the LMRDA provides alternative methods for
levying assessments and increasing dues, and requires a
secret ballot vote of the local membership only when a local
labor organization imposes an assessment or dues increase.
Because LIUNA and the NCDCL are not local labor
organizations, the district court concluded that they validly
approved the organizing fee and the dues increase following
a majority vote of their delegates at a regular convention and
a special convention, respectively, in accordance with
§ 101(a)(3)(B)(i).
CORNS V . LABORERS INT ’L UNION 13
II. STANDARD OF REVIEW
We review de novo a district court’s grant of summary
judgment. Walls v. Cent. Contra Costa Transit Auth.,
653 F.3d 963, 966 (9th Cir. 2011). Summary judgment is
appropriate when, viewing the evidence in the light most
favorable to the non-moving party, no genuine issue of
material fact exists and the moving party is entitled to
judgment as a matter of law. Id. We draw all reasonable
inferences in the light most favorable to the moving party, but
“[c]onclusory, speculative testimony in affidavits and moving
papers is insufficient to raise genuine issues of fact and defeat
summary judgment.” Soremekun v. Thrifty Payless, Inc.,
509 F.3d 978, 984 (9th Cir. 2007).
III. DISCUSSION
The LMRDA “was the product of congressional concern
with widespread abuses of power by union membership.”
Finnegan v. Leu, 456 U.S. 431, 435 (1982). Although the
initial “legislation focused on disclosure requirements and the
regulation of union trusteeships and elections,” Congress
subsequently adopted numerous amendments “all aimed at
enlarged protection for members of unions paralleling certain
rights guaranteed by the Federal Constitution.” Id. The
amendments created a statutory “Bill of Rights” “specifically
designed to promote the ‘full and active participation by the
rank and file in the affairs of the union.’” Hall v. Cole,
412 U.S. 1, 7–8 (1973) (quoting Am. Fed’n of Musicians v.
Wittstein, 379 U.S. 171, 182–83 (1964)). Title I of the
LMRDA, which reflects the amendments, granted a panoply
of rights to union members, including the right to vote and
participate in a union’s decision-making process, freedom of
speech and assembly, and procedural safeguards in
14 CORNS V . LABORERS INT ’L UNION
disciplinary actions.5 29 U.S.C. § 411(a); see also Local 82,
Furniture & Piano Moving v. Crowley, 467 U.S. 526, 536–37
(1984). “In providing such protection, Congress sought to
further the basic objective of the LMRDA: ‘ensuring that
unions [are] democratically governed and responsive to the
will of their memberships.’” Sheet Metal Workers’ Int’l
Ass’n v. Lynn, 488 U.S. 347, 352 (1989) (quoting Finnegan,
456 U.S. at 436 (alteration in original)).
A. Section 101(a)(3) of the LMRDA
The issues raised here primarily concern § 101(a)(3), a
rarely invoked provision of Title I of the LMRDA, governing
the imposition of dues, initiation fees, and assessments by
labor organizations.6 We have previously recognized that the
5
The LM RDA also includes a private right of action authorizing any
aggrieved person to bring a civil action in a district court of the United
States for any violation of the Act. 29 U.S.C. § 412.
6
Except in the case of a federation of national or international labor
organizations, the rates of dues and initiation fees payable by members of
any labor organization . . . shall not be increased, and no general or special
assessment shall be levied upon such members, except –
(A) in the case of a local labor organization, (i) by
majority vote by secret ballot of the members in good
standing voting at a general or special membership
meeting, after reasonable notice of the intention to vote
upon such question, or (ii) by majority vote of the
members in good standing voting in a membership
referendum conducted by secret ballot; or
(B) in the case of a labor organization, other than
a local labor organization or a federation of national or
international labor organizations, (i) by majority vote of
the delegates voting at a regular convention, or at a
CORNS V . LABORERS INT ’L UNION 15
purpose of § 101(a)(3) “is to curb the potential for autocratic
and unrepresentative rule of union officers by preventing the
leadership of a union from imposing arbitrary financial
extractions unilaterally on its membership.” Burroughs v.
Operating Eng’rs Local Union No. 3, 686 F.2d 723, 728 (9th
Cir. 1982) (internal citation omitted).
Because the parties dispute whether § 101(a)(3)(A) or (B)
applies in this case, we must address the threshold issue of
statutory construction. In interpreting the meaning of
§ 101(a)(3), we first consider the plain text of the statute.
Washington v. Chimei Innolux Corp., 659 F.3d 842, 847 (9th
Cir. 2011). In doing so, “[w]e examine not only the specific
provision at issue, but also the structure of the statute as a
whole, including its object and policy.” Id. at 847–48
(quoting Children’s Hosp. & Health Ctr. v. Belshe, 188 F.3d
1090, 1096 (9th Cir. 1999)).
As the introductory paragraph explains, § 101(a)(3) does
not apply to a federation of national or international labor
organizations. 29 U.S.C. § 411(a)(3). All other labor
special convention of such labor organization held upon
not less than thirty days’ written notice to the principal
office of each local or constituent labor organization
entitled to such notice, or (ii) by majority vote of the
members in good standing of such labor organization
voting in a membership referendum conducted by
secret ballot, or (iii) by majority vote of the members of
the executive board or similar governing body of such
labor organization, pursuant to express authority
contained in the constitution and bylaws of such labor
organization . . . .
29 U.S.C. § 411(a)(3).
16 CORNS V . LABORERS INT ’L UNION
organizations,7 however, must abide by § 101(a)(3)’s
requirements prior to increasing dues or initiation fees or
levying assessments. In light of the provision’s parallel
references to “members” in the clause regarding increases in
rates of dues and initiation fees, on the one hand, and the
clause regarding the levying of general or special
assessments, on the other hand, we conclude that § 101(a)(3)
mandates that a labor organization shall only impose such
financial extractions on its own members, as that term is
defined in the LMRDA.8 Id.
Subsection (A) provides that when a local labor
organization seeks to increase dues or initiation fees or levy
assessments, it must first obtain the approval of the majority
of its members in good standing. Id. § 411(a)(3)(A). This
7
The LMRDA defines a “labor organization” as “a labor organization
engaged in an industry affecting commerce and includes any organization
of any kind, any agency, or employee representation committee, group,
association, or plan so engaged in which employees participate and which
exists for the purpose, in whole or in part, of dealing with employers
concerning grievances, labor disputes, wages, rates of pay, hours, or other
terms or conditions of employment, and any conference, general
committee, joint or system board, or joint council so engaged which is
subordinate to a national or international labor organization, other than a
State or local central body.” Id. § 402(i).
8
Under the LMRDA, a “‘[m]ember’ or ‘member in good standing’,
when used in reference to a labor organization, includes any person who
has fulfilled the requirements for membership in such organization, and
who neither has voluntarily withdrawn from membership nor has been
expelled or suspended from membership after appropriate proceedings
consistent with lawful provisions of the constitution and bylaws of such
organization.” Id. § 402(o).
CORNS V . LABORERS INT ’L UNION 17
approval always necessitates a secret ballot9 vote of the local
membership, at either a general or special membership
meeting or in a membership referendum. Id. By requiring a
secret ballot vote in both instances, § 101(a)(3) serves the
dual purpose of protecting members’ right to participate in
their local union’s decision-making processes while
simultaneously ensuring that they will not be subjected to
unjust discrimination on account of how they cast their ballot.
See Finnegan, 456 U.S. at 435–36 (explaining that the
statutory “Bill of Rights” “placed emphasis on the rights of
union members to freedom of expression without fear of
sanctions by the union, which in many instances could mean
loss of union membership and in turn loss of livelihood.”).
Subsection (B), meanwhile, applies to dues or initiation
fees increases or assessments imposed on members of a labor
organization, “other than a local labor organization or a
federation of national or international labor organizations.”
29 U.S.C. § 411(a)(3)(B) (emphasis added). Under
subsection (B), labor organizations, such as international
unions, are authorized to increase dues or initiation fees or
levy assessments by one of several methods, including by a
majority vote of delegates at a regular or special convention.
Id. This, too, comports with the objectives of the LMRDA,
which we have concluded was not intended to infringe
international unions’ traditional authority to establish local
unions’ rates of dues. See Mori v. Int’l Bhd. of Boilermakers,
Local 6, 653 F.2d 1279, 1283 (9th Cir. 1981). In this way,
9
A “secret ballot” is defined as “the expression by ballot, voting
machine, or otherwise, but in no event by proxy, of a choice with respect
to any election or vote taken upon any matter, which is cast in such a
manner that the person expressing such choice cannot be identified with
the choice expressed.” Id. § 402(k).
18 CORNS V . LABORERS INT ’L UNION
the LMRDA balances umbrella labor organizations’ interest
in self-governance with union members’ right to participate
in the decision-making process through elected
representatives. Crowley, 467 U.S. at 539 (noting that
Congress meant to further the LMRDA’s basic policy of
promoting democratic union governance “with a minimum of
interference in the internal affairs of unions.”).
Reading these provisions together, and taking into
account the LMRDA’s objectives and policy, we conclude
that subsections (A) and (B) provide alternative methods for
increasing dues or initiation fees or levying assessments. See
Davis v. Mich. Dep’t of Treasury, 489 U.S. 803, 809 (1989)
(explaining that “[i]t is a fundamental canon of statutory
construction that the words of a statute must be read in their
context and with a view to their place in the overall statutory
scheme.”). In particular, we note Congress’ use of the word
“or” to separate the two subsections, which we interpret as
taking its “ordinary, contemporary, common meaning.”
Perrin v. United States, 444 U.S. 37, 42 (1979). “In its
elementary sense, the word ‘or,’ as used in a statute, is a
disjunctive particle indicating that the various members of the
sentence are to be taken separately.” 73 Am. Jur. 2d Statutes
§ 147 (2012).10
Although we conclude that the plain text of the LMRDA
controls our analysis, we also find support for our
interpretation in the existing case law. In Ranes v. Office
10
The concurrence suggests an interpretation of the statute that does not
account for its plain text, particularly the word “or” that connects
29 U.S.C. §§ 411(a)(3)(A) and (B). W e place considerable importance on
the precise text of the statute, and therefore do not find the concurrence’s
interpretation of the statute to be persuasive.
CORNS V . LABORERS INT ’L UNION 19
Employees International Union, Local No. 28, for example,
the plaintiffs argued that a local union could not increase dues
in accordance with the international union’s constitutional
amendment raising the minimum dues requirement without
a secret ballot vote of the local membership. 317 F.2d 915,
916 (7th Cir. 1963). The Seventh Circuit held that the
international union complied with the LMRDA when it
increased the constitutional minimum for dues payable by its
members to their respective local unions following the
approval of the increase by a majority of delegates voting at
its regular convention. Id. at 916–17. The Seventh Circuit
observed that, although a local union must obtain a majority
vote of its members under subsection (A), “subsection (B)
prescribes alternative methods by which an international
union may increase ‘rates of dues.’” Id. at 917 (emphasis
added). In so concluding, the court explained:
The legislative history of the Act is silent on
this question, but we think it clear that [§]
101(a)(3) embodies congressional recognition
of the existence of a sphere of interest in both
international and local unions in the area of
membership dues. Traditionally, international
unions have exercised primary jurisdiction
over affairs of their affiliated local unions,
including the control of the local dues
structure sufficient to insure the financial
health of the union structure. Many
international unions exercise control in the
latter sphere of interest by the device of
prescribing the minimum rate for the dues
which each of their locals shall collect from
its members. We cannot assume that
Congress was unaware of the traditional
20 CORNS V . LABORERS INT ’L UNION
structure and dues practices of labor unions
when it enacted [§] 101(a)(3), or that
Congress, being aware of the traditional
structure and practices, intended by enacting
that Section to strip international unions of
their traditional power to control the minima
and maxima of rates of dues without one word
in the Committee Reports expressing that
intention. On the contrary, we must assume
that Congress was aware of the established
structure and practices and interpret the
statute in the light thereof.
Id. at 917–18 (footnotes omitted). Recognizing that the
purpose of § 101(a)(3) is to protect union members’ rights,
the Seventh Circuit further concluded that members’ rights
are adequately protected when they “have representation at
the council table where dues structures are changed.” Id. at
918.
Relying in part on the reasoning in Ranes, we held that
the LMRDA authorized an international union to increase the
dues imposed on field construction members in its affiliated
local unions by approving the dues structure by a majority of
delegates voting at a convention of the international union.
Mori, 653 F.2d at 1285. We found support for the Seventh
Circuit’s approach in a subsequently decided Supreme Court
case, in which the Court concluded that the LMRDA was not
intended to disrupt the established union practice of weighted
voting. Id. at 1283 (quoting Wittstein, 379 U.S. at 178). As
a result, we adopted the Seventh Circuit’s interpretation of the
LMRDA and endorsed “two considerations supportive of an
international’s power to establish minimum local dues:
legislative intent [to preserve international unions’ traditional
CORNS V . LABORERS INT ’L UNION 21
authority to establish rates of dues] and adequate protection
of union members’ rights.” Id.With respect to the first consideration, we agreed that
Congress did not intend to curb international unions’
traditional power to establish local unions’ rates of dues. Id.
at 1284. Addressing the second consideration, we noted “the
participation of delegates representing plaintiffs ensured their
rights under [§] 101(a)(3)(B),” and concluded that “there
[was] no reason in this case to distrust the democratic process
at work at the convention.” Id. at 1285. Although the dues
increase applied to only “a minority within the international,”
id. at 1284, we concluded that the international union’s
efforts did “not reflect an attempt on the part of a majority of
the international to exploit or discriminate against the
minority of construction workers,” id. at 1285. “Instead, the
convention’s action appear[ed] to reflect the judgment of the
majority concerning the measures necessary to enhance the
vitality of the construction lodges.” Id. We also found it
significant that the funds collected under the new dues
structures would “be retained by the local construction lodges
for their own benefit.” Id. at 1284.
In light of the plain text of the statute and the LMRDA’s
purposes, we hold that § 101(a)(3)(A) and (B) establish
alternative methods by which labor organizations are
authorized to increase dues or initiation fees or to levy
assessments on their members, subject to the explicit
restrictions in the statute. In other words, the LMRDA
requires that, prior to increasing dues or initiation fees or
levying assessments, a local union must always obtain the
majority approval of its members in good standing by a secret
ballot vote. 29 U.S.C. § 411(a)(3)(A). The statute, however,
concurrently permits any other labor organization, except for
22 CORNS V . LABORERS INT ’L UNION
the excluded categories set forth in the provision, to impose
an identical dues or fees increase or assessment by any of the
methods provided in § 101(a)(3)(B), including by majority
delegate approval at a general or special convention. Id.
§ 411(a)(3)(B); see also Mori, 653 F.2d at 1285 (permitting
an international union to impose a dues increase payable by
local union members to their respective local unions). And,
as explained in Mori, any exercise of authority under
§ 103(a)(3) must adequately protect members’ rights.11 Id.
By creating alternative methods, the LMRDA balances the
twin goals of protecting union democracy and preserving
union self-governance. See Marcia Greenblatt, Note, Union
Officials and the Labor Bill of Rights, 57 Fordham L. Rev.
601, 601–02 (1989) (explaining that Congress “did not intend
the LMRDA to prevent the unions from maintaining
reasonable rules for self-governance, and therefore tempered
the goal to democratize the unions with a policy to avoid
excessive interference into intra-union government.”
(footnote omitted)). Thus, having established the statutory
framework within which this case must be analyzed, we turn
to the particular financial extractions at issue.
11
The concurrence overlooks this critical aspect of our analysis. Union
members pay fees and dues, but they receive the benefit of collective
power and representation. And, contrary to the concurrence’s assertion,
the stated purpose of the LMRDA is not “to protect union members
against increases in dues and fees.” Rather, the purpose of the LMRDA
is to ensure that unions are democratically governed. The purpose of
§ 103(a)(3), in particular, is to protect union members from arbitrary or
unilateral extractions which, by their very nature, are not democratically
approved. There is nothing in our analysis which would permit a labor
organization to bypass member participation, through either a direct vote
or a representative vote, when increasing members’ dues and fees.
CORNS V . LABORERS INT ’L UNION 23
B. The LIUNA Organizing Fee
Resolution 12, which was adopted by a majority of
LIUNA’s delegates voting at a regular convention, provided,
in relevant part, “that every Local Union having jurisdiction
in the construction industry shall pay $.25 per hour, to be
phased in over three years[.]” Corns argues that LIUNA
violated § 101(a)(3)(A) of the LMRDA by approving
Resolution 12 without a secret ballot vote of the local unions’
membership. We disagree.
Because LIUNA is an international union, its approval of
Resolution 12 is governed by subsection (B), not subsection
(A), of § 101(a)(3) of the LMRDA. As explained above, the
LMRDA authorizes an international union to increase dues or
initiation fees or levy an assessment payable by its members
provided that it satisfies § 101(a)(3)(B)’s requirements and it
adequately protects the rights of union members in the
approval process. 29 U.S.C. § 411(a)(3)(B); see also Mori,
653 F.2d at 1285. There is no dispute that, under Article I,
§ 1 of the International Union Constitution, the members of
LIUNA’s affiliated local unions are also members of the
international union. Therefore, LIUNA is statutorily
empowered to impose financial obligations on local union
members. The international union also complied with the
LMRDA by adopting Resolution 12 by one of the procedures
explicitly authorized under § 101(a)(3)(B)—approval by a
majority of LIUNA’s delegates voting at a regular
convention. 29 U.S.C. § 411(a)(3)(B)(i). And, notably,
Corns does not assert that any procedural irregularity
occurred, or that union members’ rights were not adequately
protected in the voting process. See Mori, 653 F.2d at1284–85.
24 CORNS V . LABORERS INT ’L UNION
Although the organizing fees are not retained by local
unions, as they were in Mori, the funds are used to increase
union membership in the district councils’ regional
jurisdictions. Such efforts directly benefit LIUNA’s affiliated
local unions by adding new members to their ranks. Thus, we
conclude that LIUNA satisfied the LMRDA’s requirements
when it adopted the $0.25 per hour organizing fee following
the approval of Resolution 12 by a majority of its delegates
voting at a general convention.
Corns further argues that even if the adoption of
Resolution 12 did not contravene the LMRDA’s
requirements, the implementation of the organizing fee was
nonetheless deficient in several respects. First, Corns argues
that the organizing fees included in the 2008–10 Local 166
Agreements exceeded the amount authorized by Resolution
12. The organizing fees added to the 2008–10 San Francisco
and San Mateo Masonry and Plastering Agreements, $0.16
and $0.25 per hour, respectively, are plainly within the
maximum rate authorized by Resolution 12. The organizing
fees provided for in the 2008–10 Alameda and Contra Costa
Masonry and Plastering Agreements, $0.60 and $1.10 per
hour, respectively, similarly do not exceed the $0.25 per hour
organizing fee approved by LIUNA because they represent
independent financial obligations imposed by Local 166.
Organizing fees in identical amounts were deducted from
Local 166 members’ wages under the 2005–07 Alameda and
Contra Costa Agreements. Because there was no increase
from the 2005–07 Alameda and Contra Costa Agreements,
the organizing fees included in the 2008–10 Alameda and
Contra Costa Agreements do not exceed the amount approved
at LIUNA’s general convention. Rather, the $0.60 and $1.10
organizing fees are properly characterized as preexisting
financial obligations imposed by Local 166 on its own
CORNS V . LABORERS INT ’L UNION 25
members to fund Local 166—not regional—organizing
efforts.
Next, Corns argues that the district court erred in granting
summary judgment with respect to the validity of the
organizing fees provided for in the Alameda and Contra
Costa Agreements because a factual dispute remains as to
whether there was ever a valid secret ballot vote to approve
these fees. Stated differently, Corns argues that, absent
evidence of a prior secret ballot vote of Local 166 members,
the inclusion of the organizing fees in the 2008–10 Alameda
and Contra Costa Agreements constituted a continuing
violation of the LMRDA. We conclude that Corns waived
this argument by failing to raise it in the district court, and we
accordingly decline to address it. In re Mercury Interactive
Corp. Sec. Litig., 618 F.3d 988, 992 (9th Cir. 2010).
Third, Corns argues that Resolution 12 requires that local
unions—not their members—pay the organizing fees. Under
the “financial burden” test, “[w]hether there has been an
increase in dues must be determined not by who imposed the
exaction but by the nature of the imposition and its direct
effect upon the financial burden of the individual members.”
King v. Randazzo, 234 F. Supp. 388, 394 (E.D.N.Y. 1964);
see also Patterson v. United Bhd. of Carpenters, 906 F.2d
510, 513 (10th Cir. 1990) (indicating that several circuits
have approved the “financial burden” test). Unlike a dues
increase,
[a] true “per capita tax” is one which is levied
by a parent labor organization upon a local
union with which it is affiliated. It is not a tax
levied by a parent or a coordinating union
directly upon the members of its affiliated
26 CORNS V . LABORERS INT ’L UNION
locals. It is paid to the parent body or
authorized coordinating union from the dues
collected by the local from its members and
generally related to the numerical strength of
the local. But it is not an additional sum
charged directly to the member and it is not
used as a subterfuge to increase dues.
King, 234 F. Supp. at 394. In King, the district council
explicitly referred to the payment as a “per capita tax” in the
applicable constitutional provision. Id. at 390. Applying the
“financial burden” test, the district court in King nonetheless
concluded that the “[t]he term ‘per capita tax’ as used in this
case [was] not used in its traditional sense” but rather was
“employed to denote the payment of dues by members of a
local directly to an intermediate coordinating council within
the [local union] structure.” Id. at 394.
We recognize that the “financial burden” test was
formulated to prevent labor organizations from circumventing
the LMRDA’s requirements by classifying a financial
obligation as a per capita tax, which is not governed by the
LMRDA, when, in reality, it functions as a dues increase on
union members, which triggers § 101(a)(3)’s requirements.
Seybert v. Lowen, 623 F.2d 780, 784 (2d Cir. 1980)
(explaining that the “financial burden” test was intended to
distinguish “‘true’ per capita taxes from devices that,
although labeled as ‘per capita taxes,’ actually were disguised
dues increases which labor organizations sought to impose on
their members without the necessity of first complying with
the procedures mandated by 29 U.S.C. [§] 411(a)(3)”); Ranes,
317 F.2d at 918. In adopting Resolution 12, however,
LIUNA complied with the LMRDA’s requirements and there
is consequently no evidence that it sought to undermine the
CORNS V . LABORERS INT ’L UNION 27
democratic processes protected by the statute. Thus, there is
no basis for interfering with LIUNA’s implementation of a
properly enacted organizing fee. Teamsters Joint Council No.
42 v. Int’l Bhd. of Teamsters, 82 F.3d 303, 306 (9th Cir.
1996) (acknowledging the “well-established federal policy of
avoiding unnecessary interference in the internal affairs of
unions” and cautioning courts that, absent evidence of bad
faith or special circumstances, they “must be careful not to
undermine union self-government”); Reich v. Local 89,
Laborers’ Int’l Union of N. Am., 36 F.3d 1470, 1476 (9th Cir.
1994) (noting the countervailing policy of the LMRDA that
“unions should be free to conduct their affairs so far as
possible and the government should not become excessively
involved in union politics”).
Finally, Corns contends that the district court erred in
granting the Unions’ motion for summary judgment because
the record does not demonstrate that the organizing fees
collected under Resolution 12 were paid, in full, to the
NCDCL’s regional organizing fund, as opposed to Local 166.
Having reviewed the record, we conclude that Corns provided
insufficient evidence to demonstrate that a genuine issue of
material fact exists as to whether the organizing fees are
remitted in their entirety to the NCDCL’s regional organizing
fund.
Accordingly, we conclude that LIUNA complied with the
LMRDA when it enacted an organizing fee payable by local
union members by approving the fee by a majority of its
delegates voting at a general convention. Because LIUNA
properly implemented the organizing fee, the district court
did not err in rejecting Corns’s challenge to the collection of
this fee.
28 CORNS V . LABORERS INT ’L UNION
C. The NCDCL Dues Increase
Corns also contends that the NCDCL lacked the statutory
authority to increase Local 166 members’ dues by a majority
delegate vote at a special convention. According to Corns,
the NCDCL is only permitted to increase the dues of its own
members, who, in this case, consist of the district council’s
fifteen affiliated local unions or the delegates from these local
unions. The Unions, on the other hand, assert that the
Uniform District Council and Uniform Local Union
constitutions, which are binding on Local 166 members,
empower the NCDCL to impose dues increases on members
of affiliated local unions. In light of the plain text of the
International Union Constitution and the Uniform District
Council constitutions, we conclude that the NCDCL violated
the LMRDA when it imposed a dues increase on Local 166
members.
To properly impose a dues increase, the NCDCL, which
is not a local labor organization, must comply with the
requirements set forth in § 101(a)(3)(B) of the LMRDA.
29 U.S.C. § 411(a)(3)(B). The statute only permits a labor
organization to impose a financial extraction, such as a dues
increase, on its own members. Id. § 411(a)(3). As explained
above, under the LMRDA, a “member” “when used in
reference to a labor organization, includes any person who
has fulfilled the requirements for membership in such
organization, and who neither has voluntarily withdrawn from
membership nor has been expelled or suspended from
membership after appropriate proceedings consistent with
lawful provisions of the constitution and bylaws of such
organization.” Id. § 402(o). We therefore look to the
NCDCL’s constitution and bylaws to determine who is a
member of the labor organization.
CORNS V . LABORERS INT ’L UNION 29
The International Union and Uniform District Council
constitutions explicitly define the membership of district
councils, such as the NCDCL, as the delegates from affiliated
local unions, who have been elected in the manner and
number provided for in the Uniform District Council
Constitution. Int’l Union Const. art. XIX, § 5; Unif. Dist.
Council Const. art I, § 2, art. IV, § 1. Yet, the Unions urge us
to adopt the district court’s reasoning that Local 166 members
are in substance members of the NCDCL because they are
bound by the constitution and bylaws of all of the labor
organizations in the union hierarchy. They argue that Local
166 members are effectively members of the NCDCL
because they are bound by the terms of the Uniform Local
Union Constitution, which in turn obligates members of
Local 166 to abide by the International Union and Uniform
District Council constitutions. Because Article II, § 2(e) and
Article VIII, § 2 of the Uniform District Council Constitution
and Article VIII, § 1 of the Uniform Local Union
Constitution delegate the authority to establish and regulate
dues and initiation fees to the NCDCL, the Unions contend
that the NCDCL is authorized to impose dues increases
payable by members of local unions.
Although we remain mindful of “the well-established
federal policy of avoiding unnecessary interference in the
internal affairs of unions and according considerable
deference to the interpretation and application of a union’s
rules and regulations,” Sergeant v. Inlandboatmen’s Union of
the Pac., 346 F.3d 1196, 1200 (9th Cir. 2003), we cannot
adopt a position that so plainly conflicts with the express
language of the constitutional provisions defining the
NCDCL’s membership. Cf. Motion Picture & Videotape
Editors Guild, Local 776 v. Int’l Sound Technicians, Local
695, 800 F.2d 973, 976 (9th Cir. 1986) (“Absent a specific
30 CORNS V . LABORERS INT ’L UNION
limitation in a union constitution, this court will not interfere
with the efforts of a union’s leaders to manage the affairs of
their organization.”). In addition to the provision addressing
the composition of the NCDCL, we also note that the
membership qualifications and obligations delineated in the
Uniform District Council Constitution, which are relevant
under the LMRDA for purposes of defining a labor
organization’s membership, apply to union delegates, not
individual union members.12 Unif. Dist. Council Const. art.
IV, §§ 3–4. We also find it significant that the International
Union Constitution expressly provides that the members of
LIUNA consist of the members of its affiliated local unions.
Int’l Union Const. art. I, § 1.
In so concluding, we agree with the Unions that Local
166 members must conform and comply with all of the
Unions’ constitutions. See Imel v. Zohn Mfg. Co., 481 F.2d
181, 183 (10th Cir. 1973) (concluding that local union
members are bound by the constitutions and bylaws of the
local union’s umbrella organization). But, the mere fact that
Local 166 members are bound by the constitutions and
bylaws of all of the labor organizations in the Unions’
hierarchy is not sufficient to bring them within the definition
of “member” for purposes of the LMRDA. In light of these
considerations, we reject the Unions’ circuitous approach of
defining the NCDCL’s membership by cobbling together
other constitutional provisions concerning the NCDCL’s
powers and the obligations of its affiliated unions. Instead,
we rely on the express provisions in the International Union
12
For this reason, we disagree with Corns’s characterization that the
affiliated local unions are the members of the NCDCL for purposes of the
LMRDA.
CORNS V . LABORERS INT ’L UNION 31
and Uniform District Council constitutions defining
membership.
We do not speculate whether the NCDCL, if it were to
amend its constitution, could impose a dues increase on the
members of only one of its affiliated local unions. We hold
only that, although we generally accord deference to a labor
organization’s interpretation of its own policies and
provisions, there is no justification for an interpretation that
squarely conflicts with the plain text of its constitutions and
bylaws. We therefore conclude that the NCDCL violated
§ 101(a)(3) of the LMRDA when it imposed a dues increase
on Local 166 members.
IV. CONCLUSION
In light of the plain text of § 101(a)(3)(B) and our holding
in Mori, we conclude that LIUNA complied with the
LMRDA when it approved an organizing fee payable by
Local 166 members by a majority vote of its delegates at a
general convention. We further conclude that the NCDCL
lacked the statutory authority to impose a dues increase on
Local 166 members because they are not also members of the
NCDCL. Accordingly, the district court’s grant of summary
judgment is affirmed in part, reversed in part, and remanded
for further proceedings consistent with this opinion.
AFFIRMED in part; REVERSED in part; and
REMANDED. Each side shall bear their own costs on
appeal.
32 CORNS V . LABORERS INT ’L UNION
BYBEE, Circuit Judge, concurring in the judgment:
Although I concur in the judgment, I write separately to
express my differing views about the proper interpretation of
§ 101(a)(3) of the Labor-Management Reporting and
Disclosure Act (“LMRDA” or “Act”), 29 U.S.C. § 411(a)(3).1
1
The full text of § 101(a)(3) reads as follows:
Except in the case of a federation of national or
international labor organizations, the rates of dues and
initiation fees payable by members of any labor
organization in effect on September 14, 1959 shall not
be increased, and no general or special assessment shall
be levied upon such members, except–
(A) in the case of a local labor organization, (i) by
majority vote by secret ballot of the members in
good standing voting at a general or special
membership meeting, after reasonable notice of the
intention to vote upon such question, or (ii) by
majority vote of the members in good standing
voting in a membership referendum conducted by
secret ballot; or
(B) in the case of a labor organization, other than
a local labor organization or a federation of
national or international labor organizations, (i) by
majority vote of the delegates voting at a regular
convention, or at a special convention of such
labor organization held upon not less than thirty
days’ written notice to the principal office of each
local or constituent labor organization entitled to
such notice, or (ii) by majority vote of the
members in good standing of such labor
organization voting in a membership referendum
conducted by secret ballot, or (iii) by majority vote
of the members of the executive board or similar
governing body of such labor organization,
CORNS V . LABORERS INT ’L UNION 33
The majority concludes that subsections (A) and (B) of
§ 101(a)(3) “provide alternative methods for increasing dues
or initiation fees or levying assessments” payable by
members of a local labor organization. Maj. Op. at 18–22.
The majority acknowledges that this interpretation leaves
open the possibility that it is lawful under the LMRDA for a
larger umbrella labor organization to levy dues and fees on
the members of a local union—and that union alone—through
procedures that do not involve a vote of the local union’s
members. Maj. Op. at 31. The majority claims, however,
that because the dues increase imposed only on the members
of Hod Carriers Local Union No. 166 (“Local 166”) by the
delegates to the Northern California District Council of
Laborers (“NCDCL”)—an umbrella labor organization that
represents Local 166 and other local labor
organizations—was unlawful under the NCDCL constitution,
there is no need to “speculate whether the NCDCL, if it were
to amend its constitution, could impose a dues increase on the
members of only one of its affiliated local unions” lawfully
under the LMRDA. Maj. Op. at 31. I disagree with the
majority’s assertion that subsections (A) and (B) provide
“alternative methods” for approving levies.
The language of § 101(a)(3) is ambiguous—it is not
“plain,” in spite of the majority’s claim to the contrary, Maj.
pursuant to express authority contained in the
constitution and bylaws of such labor organization:
Provided, That such action on the part of the
executive board or similar governing body shall be
effective only until the next regular convention of
such labor organization.
29 U.S.C. § 411(a)(3).
34 CORNS V . LABORERS INT ’L UNION
Op. at 182—but the text and structure of § 101(a)(3) convince
me that subsections (A) and (B) do not offer alternative
methods for imposing levies. Rather, subsections (A) and (B)
offer the only lawful methods for imposing dues and fees
payable by members of distinct types of labor organizations.
Levies payable only by members of a local labor organization
like Local 166 can only be lawfully approved under the
procedures provided in subsection (A) of § 101(a)(3),
procedures that require approval by a majority vote of the
local labor organization using a secret ballot, either at a
meeting or by referendum. Section 101(a)(3) does not permit
a larger labor organization to impose levies that affect only
members of a local labor organization, even if the members
of the local labor organization are also members of the larger
labor organization. Not only is this the most natural reading
of the language of § 101(a)(3), but it is also a reading that
fully comports with Congress’s broad purposes in enacting
2
Ambiguity in the LM RDA comes as no surprise in light of the
legislation’s history. As explained by Archibald Cox, who the Supreme
Court has described as “actively participat[ing] in shaping much of the
LMRDA,” Wirtz v. Local 153, Glass Bottle Blowers Ass’n, 389 U.S. 463,
468 n.6 (1968):
The [LMRDA] contains more than its share of
problems for judicial interpretation because much of the
bill was written on the floor of the Senate or House of
Representatives and because many sections contain
calculated ambiguities or political compromises
essential to secure a majority.
Archibald Cox, Internal Affairs of Labor Unions Under the Labor Reform
Act of 1959, 58 Mich. L. Rev. 819, 852 (1960); see also Usery v. Local
Union No. 639 Int’l Bhd. of Teamsters, 543 F.2d 369, 387 n.50 (D.C. Cir.
1976) (describing Cox as “a principal consultant to the draftsmen” of the
LM RDA).
CORNS V . LABORERS INT ’L UNION 35
the LMRDA. This reading is fully consistent with our prior
reading of the statute.
As I read the Act, the dues increase imposed on members
of Local 166 by delegates to the NCDCL violated the
LMRDA regardless of the specific terms of the NCDCL
constitution discussed by the majority. My interpretation of
the statute also leads to the result that the organizing fee
approved in Resolution 12 did not violate the LMRDA, a
result the majority also reaches based on its interpretation of
the LMRDA. Though I reach the same conclusions as the
majority, I cannot endorse the majority’s reasoning.
I
The core dictate of § 101(a)(3) is that “the rates of dues
and initiation fees payable by members of any labor
organization . . . shall not be increased, and no general or
special assessment shall be levied upon such members.” In
other words, the stated purpose of the Act is to protect union
members against increases in due and fees. This core dictate
is—awkwardly—sandwiched between two “except clauses,”
the second of which has two parts. In effect, there are three
exceptions to the rule that members’ dues and fees shall not
be increased.
The first exception, provided in the opening words of
§ 101(a)(3), is for “the case of a federation of national or
international labor organizations.” This section of the
LMRDA imposes no further conditions on the actions of a
federation of national or international labor organizations. At
least as far as § 101(a)(3) is concerned, a levy governed by
this exception appears to be lawful regardless of the method
followed for approving the levy. The two other exceptions,
36 CORNS V . LABORERS INT ’L UNION
provided in subsections (A) and (B), are for “the case of a
local labor organization” and “the case of a labor
organization, other than a local labor organization or a
federation of national or international labor organizations,”
respectively. Subsections (A) and (B) describe particular
procedures that must be followed in approving increases in
dues and fees. Structurally, the three exceptions combine to
cover the full universe of labor organizations—“a federation
of national or international labor organizations,” “a local
labor organization,” and “a labor organization other than a
local labor organization or a federation of national or
international labor organizations.”
Only subsections (A) and (B) are at issue in this case.
These provisions are less than clear and may be read in a
couple of ways. The majority reads (A) and (B) as describing
the methods by which different classes of unions may raise
dues and fees on “any labor organization.”3 The majority
thus construes § 101(a)(3)(A) as though it began:
a local labor organization shall not increase
the rates of dues and initiation fees payable by
3
See, e.g., Maj. Op. at 21 (“[W ]e hold that § 101(a)(3)(A) and (B)
establish alternative methods by which labor organizations are authorized
to increase dues or initiation fees or to levy assessments on their members
. . . .” (emphasis added)). It seems clear that this is how the majority
views the statute, even if the majority is at times inexact in its wording
when discussing § 101(a)(3). See, e.g., id. at 17 (“Subsection (B) . . .
applies to dues or initiation fees increases or assessments imposed on
members of a labor organization, ‘other than a local labor organization
or a federation of national or international labor organizations.’ Under
subsection (B), labor organizations, such as international unions, are
authorized to increase dues or initiation fees or levy assessments . . . .”
(some emphasis added) (internal citation omitted)).
CORNS V . LABORERS INT ’L UNION 37
members of any labor organization nor levy
general or special assessments upon such
members except (i) by majority vote by secret
ballot of the members in good standing voting
at a general or special membership meeting
....
Similarly, the majority would read (B) as though it began:
a labor organization, other than a local labor
organization or a federation of national or
international labor organizations, shall not
increase the rates of dues and initiation fees
payable by members of any labor organization
nor levy general or special assessments upon
such members except (i) by majority vote of
the delegates voting at a regular convention
....
For the majority, (A) and (B) are grants of power to the
unions. They are “alternative methods for increasing dues or
initiation fees or levying assessments.” Maj. Op. at 18. The
majority would read (B) to authorize, for example, a regional,
national, or international union to raise the dues and fees of
a subset of the members of that union so long as it followed
the procedures set forth in (B), and the majority does not
temper its view of subsection (B) with an equality or
uniformity principle. It is one thing to argue that an
international union may raise local dues generally, or even
raise dues on a certain subset of members that spans many
local unions; it is quite another to claim that the international
may single out a local union and raise its local dues over the
objection of the local’s members. The majority’s untempered
“alternative methods” theory allows (B) to facilitate an end-
38 CORNS V . LABORERS INT ’L UNION
run around a local whose members do not want a dues
increase, but whose leaders do, or worse yet, whose leaders
do not have the voting power to overcome the will of an
umbrella labor organization. An umbrella organization could
even potentially use such an end-run to punish a local by
raising its dues.
Although the majority’s reading is plausible, I do not
think this is the best reading of the statute. I read these
sections to protect union members against undemocratic
efforts to raise their dues and fees, not to enable the
“international unions[] . . . to establish local unions’ rates of
dues” without regard for equality or uniformity. Maj. Op. at
17. I would read § 101(a)(3)(A) as though it began:
the rates of dues and initiation fees payable by
members of a local labor organization shall
not be increased, and no general or special
assessment shall be levied upon such
members, except (i) by majority vote by
secret ballot of the members in good standing
voting at a general or special membership
meeting . . . .
Similarly, I would read subsection (B) as if it began:
the rates of dues and initiation fees payable by
members of a labor organization, other than a
local labor organization or a federation of
national or international labor organizations,
shall not be increased, and no general or
special assessment shall be levied upon such
members, except (i) by majority vote of the
delegates voting at a regular convention . . . .
CORNS V . LABORERS INT ’L UNION 39
Under my reading, a union may levy dues and fees only on its
own members by following the procedures set forth in (A)
and (B). Nothing in § 101(a)(3) authorizes an umbrella labor
organization to single out a local and raise the dues or fees of
the local’s members. Section 101(a)(3) may allow an
umbrella organization to levy dues and fees on its own
members, and perhaps even a subset of its members; but at
the very least, § 101(a)(3) prevents such a levy from being
imposed only on the members of a single subsidiary union.
I believe this to be a more natural reading of § 101(a)(3).4
Section 101(a)(3)’s exceptions qualify the core dictate’s
prohibition on increases in dues and fees “payable by
members of any labor organization” or assessments “levied
upon such members.” 29 U.S.C. § 411(a)(3) (emphasis
added). Thus, subsection (A) dictates the procedures that
must be followed for a levy payable by members of a local
labor organization. Although subsection (A) is not so
didactic as to specify which labor organization’s “members”
should take part in the required secret ballot voting, it only
makes sense to read this as connected to the “members”
mentioned in the core dictate, that is, as referring to the
members of the labor organization who will pay the levy.
4
The majority asserts that my “interpretation of the statute . . . does not
account for its plain text, particularly the word ‘or’ that connects
29 U.S.C. §§ 411(a)(3)(A) and (B).” M aj. Op. at 18 n.10. I confess to not
accounting for “plain text” where there is none. T he “or” suggests that
subsections (A) and (B) describe distinct methods by which different labor
organizations may raise dues and fees on their own members; the “or”
does not suggest that subsections (A) and (B) provide alternative methods
by which a regional organization, or any other umbrella labor
organization, may raise dues or fees only on the members of a smaller
labor organization.
40 CORNS V . LABORERS INT ’L UNION
Similarly, it is only natural to read the exception in
subsection (B) for “the case of a labor organization, other
than a local labor organization or a federation of national or
international labor organizations” as qualifying the core
dictate’s general prohibition on levies payable by members of
those unions. Thus, subsection (B) dictates the approval
methods that must be followed in order for a levy payable by
members of a “labor organization, other than a local labor
organization or a federation of national or international labor
organizations,” to be lawful under § 101(a)(3). If anything,
subsection (B) is even more clear than subsection (A) because
it identifies the “members” to be involved in the voting. Each
voting option under subsection (B) calls for a vote among
members or representatives of “such labor organization,”
which logically must refer back to the labor organization
whose members will be paying the levy. As the Tenth Circuit
explained, subsection (B) “makes it clear that the increased
dues must be enacted by the relevant body ‘of such labor
organization,’ that is the organization whose members will be
required to pay the increased dues.” Patterson v. United Bhd.
of Carpenters & Joiners of Am. AFL-CIO, 906 F.2d 510, 515
(10th Cir. 1990).
In sum, subsection (A) prescribes the required voting
methods for the lawful approval of a levy payable by
members of a local labor organization, and requires majority
approval of the members of the local labor organization
voting by secret ballot; and subsection (B) prescribes the
required voting methods for the lawful approval of a levy
payable by members of a labor organization other than a local
labor organization or a federation of national or international
labor organizations, and requires no secret ballot. The
subsections are symmetrical and preserve the rights of union
members to vote directly on any dues increases or, under
CORNS V . LABORERS INT ’L UNION 41
subsection (B), at least to be equitably represented before any
dues are levied on them. An international union can impose
due and fees on its international members, a regional union
on its regional members, and a local union on its members.
This outcome is respectful of principles of equality and
uniformity that are disregarded by the majority’s approach.
II
My reading of § 101(a)(3) set forth above is supported by
Congress’s broad objectives in enacting the LMRDA, and
particularly Title I of the LMRDA, which includes
§ 101(a)(3). Title I of the LMRDA is self-consciously titled
“Bill of Rights of Members of Labor Organizations.”
29 U.S.C. §§ 411–15; see also Maj. Op. at 13 (stating that
Title I is a “statutory ‘Bill of Rights’ ‘specifically designed to
promote the full and active participation by the rank and file
in the affairs of the union.’” (quoting Hall v. Cole, 412 U.S.
1, 7–8 (1973)) (internal quotation marks omitted)). The
Supreme Court has said that “Title I [of the LMRDA] is
designed to guarantee every union member equal rights to
vote and otherwise participate in union decisions.” Local No.
82, Furniture & Piano Moving v. Crowley, 467 U.S. 526, 536
(1984). “[T]he rights enumerated in Title I [are] vital to the
independence of the membership and the effective and fair
operation of the union as the representative of its
membership.” Hall, 412 U.S. at 8 (internal quotation marks
omitted). “In providing such protection, Congress sought to
further the basic objective of the LMRDA: ‘ensuring that
unions [are] democratically governed and responsive to the
will of their memberships.’” Sheet Metal Workers’ Int’l Ass’n
v. Lynn, 488 U.S. 347, 352 (1989) (alteration in original)
(quoting Finnegan v. Leu, 456 U.S. 431, 436 (1982)).
42 CORNS V . LABORERS INT ’L UNION
As the majority notes, and as we have previously
recognized, the purpose of § 101(a)(3) specifically “‘is to
curb the potential for autocratic and unrepresentative rule of
union officers by preventing the leadership of a union from
imposing arbitrary financial extractions unilaterally on its
membership.’” Maj. Op. at 15 (quoting Burroughs v.
Operating Eng’rs Local Union No. 3, 686 F.2d 723, 728 (9th
Cir. 1982)). “Section 101(a)(3) was designed to vest control
over increases in rates of dues in the union members, not the
union management.” Burroughs, 686 F.2d at 728. It thus
“guarantee[s] a member’s ‘right to participate in deciding
upon the rate of dues, initiation fees, and assessments.’” Am.
Fed’n of Musicians v. Wittstein, 379 U.S. 171, 181 (1964)
(quoting H.R. Rep. No. 741, at 7 (1959)). Judge Posner has
described § 101(a)(3) as “intended to ensure that dues or
assessments are not levied by unrepresentative union
leaders,” and as “intended to bar taxation without
representation.” Michelotti v. Air Line Pilots Ass’n, 61 F.3d
13, 15 (7th Cir. 1995); see also Burroughs, 686 F.2d at 730(describing a situation in which union leadership had the
power to decide whether or not the dues of local union
members would be increased, without submitting the matter
to a vote of the local union’s members, as “a result . . .
Congress intended to prohibit when it enacted section
101(a)(3)”).
These principles were violated when members of Local
166—and no one else—had their local dues increased by the
NCDCL following a vote at a convention of sixty delegates
only two of whom were Local 166 members. Though it is
true that Local 166 was minimally represented at the
convention that raised its dues, it is hard to say that an
interpretation of § 101(a)(3) that allows such uneven
“taxation” from above is supported by the policy of
CORNS V . LABORERS INT ’L UNION 43
“ensur[ing] that dues or assessments are not levied by
unrepresentative union leaders.” Michelotti, 61 F.3d at 15.
Rank and file members of Local 166 are not full and active
participants in their own union affairs if they do not get to
vote whether to increase their own dues, but are subject to the
votes of members of other local unions, whose dues are not
at risk. The right to democratic control over such levies is
one of the rights guaranteed by the LMRDA in § 101(a)(3),
and the procedure followed here violated some pretty basic
tenets of American democracy.
The democratic principles behind the LMRDA are
reflected in my interpretation of § 101(a)(3), which requires
local union members to approve their own dues increases.
And these principles would be violated by a reading that
would permit a regional labor organization to raise the dues
of one local, while maintaining a lower assessment for
everyone else. This point was previously recognized by the
district court in White v. Local 207, which said that “[a]
holding that a district convention could set local dues for one
single local union would be to completely sterilize the
provisions of [§ 101(a)(3)(A)].” 387 F. Supp. 53, 56 (W.D.
La. 1974). A regional union such as the NCDCL may no
more raise the dues of a single local union than Congress may
tax the citizens of one state at a higher rate than citizens of
other states. Cf., e.g., U.S. Const. art. I, § 8, cl. 1 (“[A]ll
Duties, Imposts and Excises shall be uniform throughout the
United States.”); id. art. I, § 9, cl. 6 (“No Preference shall be
given by any Regulation of Commerce or Revenue to the
Ports of one State over those of another . . . .”).
The majority characterizes its reading of the statute as
balancing the democratic principles underlying the LMRDA
with “umbrella labor organizations’ interest in self-
44 CORNS V . LABORERS INT ’L UNION
governance,” noting parenthetically that “Congress meant to
further the LMRDA’s basic policy of promoting democratic
union governance ‘with a minimum of interference in the
internal affairs of unions.’” Maj. Op. at 18 (quoting Crowley,
476 U.S. at 539). Such balance is not lost in my
interpretation of the statute, as § 101(a)(3) still offers various
lawful approval methods under each of subsection (A) and
subsection (B). By contrast, the union members’ “Bill of
Rights” is of no value if it can be trumped so easily by the
majority’s “hands off” principle.
III
My reading is also fully consistent with our prior reading
of § 101(a)(3), while the majority’s position outflanks
anything that our court, or any other court, has previously
approved. Although § 101(a)(3) has not commanded much
judicial attention, we previously construed it in Mori v.
International Brotherhood of Boilermakers, 653 F.2d 1279(9th Cir. 1981). In Mori, we held that the LMRDA
authorized an international union to establish minimum dues
for members of the international union who worked in the
construction trade by a majority vote of delegates at the
convention of the international union under subsection (B) of
§ 101(a)(3). Id. at 1284–85. This decision might be
understood as endorsing the position that subsection (B)
generally allows any “labor organization, other than a local
labor organization or a federation of national or international
labor organizations,” to increase the local dues of any subset
of that labor organization’s members in any manner approved
by a majority of delegates at a convention of the labor
organization, including any increase imposed on a subset
consisting only of the members of one affiliated local union.
CORNS V . LABORERS INT ’L UNION 45
See Maj. Op. at 17–22, 31. Our decision in Mori, however,
was not so broad.
In Mori we considered whether an international union
could establish minimum dues “for a single craft within
affiliated local unions.” Mori, 653 F.2d at 1280. We
approved the dues increase for “field construction members”
who belonged to various unions within the international; the
increase did not affect the dues of other members of the
locals. Id. at 1281. The increase “affect[ed] neither a single
local nor all locals, but all locals within a single craft.” Id. at
1285 n.2. We briefly considered the broad proposition that
Ҥ 101(a)(3) places no substantive limitations on convention
action concerning dues” and thus allows an appropriately
established convention of an umbrella labor organization to
“establish local minimums in any way a majority of delegates
select,” but concluded that we “need not embrace so
expansive a view of § 101(a)(3)(B) in order to sustain the
convention action” at issue. Id. at 1284. In so concluding,
we suggested that such a broad reading of § 101(a)(3)(B)
“might seem at odds with the congressional purpose of
shielding union members from ‘arbitrary financial actions.’”
Id. (quoting 105 Cong. Rec. 2668 (1959)).
In a pre-Mori case, Ranes v. Office Employees
International Union, the Seventh Circuit approved local dues
increases enacted by an international union consistent with
the procedures required by § 101(a)(3)(B). 317 F.2d 915,
916, 918 (7th Cir. 1963). But those increases were across-
the-board increases applicable to every local union in the
international. Id. at 916. The international union could have
accomplished the same thing by raising its own fees and
remitting the funds raised to the locals. The Seventh Circuit
recognized that the international had “acted lawfully within
46 CORNS V . LABORERS INT ’L UNION
a traditional sphere of its power to control its affiliated local
unions.” Ranes, 317 F.2d at 918. Nothing in Ranes,
however, sanctions an international singling out one local and
increasing its dues. See id. at 918 n.6 (“The provisions of (A)
govern the dues structure of independent company and
unaffiliated local unions, and should apply, as well, to
increases in the dues charged by affiliated locals above the
constitutional minima prescribed by their parent unions.”).
As the Tenth Circuit explained in Patterson v. United
Brotherhood of Carpenters & Joiners of America AFL-CIO,
my reading of the statute is consistent with both Ranes and
Mori. In Patterson, the Tenth Circuit held that an
international union could not lawfully establish minimum
dues for the seven local unions affiliated with an umbrella
district council. 906 F.2d at 512–15. In so holding, the court
asserted that subsection (B) of § 101(a)(3) “makes it clear
that the increased dues must be enacted by the relevant body
of . . . the organization whose members will be required to
pay the increased dues,” id. at 515 (internal quotation marks
omitted), a reading of subsection (B) that is consistent with
my interpretation. The Patterson court concluded that its
reading was consistent with Ranes and Mori. As the
Patterson court explained:
This reading of the statute is not . . .
inconsistent with the cases affirming an
international union’s authority to establish
dues payable to affiliated local unions because
these cases each involved an across-the-board
dues increase for all members of the
international union. This interpretation of the
statute is also consistent with Mori’s holding
that international union convention delegates
CORNS V . LABORERS INT ’L UNION 47
may vote a dues increase for a minority of
union members because the affected members
in that case were not, as here, all members of
a separate and distinct “labor organization,”
but rather were members of a specific craft
who apparently were dispersed throughout the
international union’s affiliated locals. Thus,
the dues increase in Mori was again an across-
the-board increase applicable to all members
of the international union who qualified and
was not, as here, a dues increase imposed
solely on members of a distinct “labor
organization.”
Patterson, 906 F.2d at 515 (internal citations omitted). As
with the dues increase in Patterson, which was imposed
solely on members of a distinct district council, the dues
increase in the instant case was imposed solely on the
members of a distinct local labor organization; it was not, as
in Mori, an across-the-board dues increase impacting all
members of an umbrella labor organization who fit some
criteria other than membership in a distinct smaller
organization.
Moreover, our case is also distinguishable from Mori in
a manner in which Patterson was not. Patterson, like Mori,
involved the imposition of a dues increase by an international
labor organization. Here, by contrast, the dues increase in
question was imposed by a district council. This may not be
relevant when it comes to the language of § 101(a)(3), under
which both international unions and district councils fall
under subsection (B)’s category of “labor organization[s],
other than a local labor organization or a federation of
national or international labor organizations.” It is, however,
48 CORNS V . LABORERS INT ’L UNION
relevant when considering the extent to which Mori controls
our inquiry. In Mori, we based our approval of an
international labor organization’s imposition of minimum
dues applicable only to members in a certain craft, across all
affiliated local unions, on the fact that “an international’s
setting of local dues is part of ‘traditional structures and
practices,’” combined with “the Supreme Court’s intimation
. . . that traditional practices are relevant to an interpretation
of the Act.” Mori, 653 F.2d at 1284 (quoting Ranes, 317 F.2d
at 917). In Mori, this court had been presented with
substantial evidence of the traditional practice of international
labor organizations playing a role in setting dues for affiliated
locals. Id. at 1283–84. This traditional practice, which was
arguably also relevant in Patterson to a dues increase
imposed by an international union on members of several
local unions, is not relevant to our analysis of the imposition
of dues on members of a local labor organization by a district
council rather than an international labor organization.
Finally, in Mori, we recognized that, in cases where a
labor organization is imposing a levy on a minority of its
members, it is relevant whether there is any “reason to
distrust the democratic process at work.” Mori, 653 F.2d at
1285. In finding no reason to distrust the democratic process
in Mori, we relied on (1) the fact that the increased dues
would be retained by local construction lodges for their own
benefit; (2) the representation of members of the construction
trade by delegates at the convention of the international labor
union that approved the dues; and (3) the lack of anything in
the record demonstrating that the majority of the international
union was seeking to exploit a minority. Id. at 1284–85.
Here, at the very least, the fact that only two of the sixty
delegates who approved the dues increase represented the
members of Local 166 who would bear the full brunt of the
CORNS V . LABORERS INT ’L UNION 49
increase provides ample reason to distrust the democratic
process at work. The LMRDA protects union members from
such abuses.
IV
In the instant case, the organizing fee approved in
Resolution 12 did not violate the LMRDA. The organizing
fee was a levy imposed upon the members of an international
labor organization (the Laborers International Union of North
America, or LIUNA), and thus was lawful as long as the
method of approval comported with subsection (B) of
§ 101(a)(3). One of the allowable methods under subsection
(B) is “a majority vote of the delegates voting at a regular
convention, or at a special convention of such labor
organization held upon not less than thirty days’ written
notice to the principal office of each local or constituent labor
organization entitled to such notice.” This is exactly the
manner in which Resolution 12 was approved, so the
organizing fee was legally imposed, as the majority
concludes. Maj. Op. at 23, 27.
The dues increase imposed on members of Local 166 by
the NCDCL, on the other hand, violated the statute. The dues
increase was imposed only on members of Local 166, a local
labor organization, and thus required approval via one of the
methods dictated by subsection (A) of § 101(a)(3), each of
which require a secret ballot vote of the members of Local
166. No secret ballot vote was taken of the members of Local
166, so the dues increases was not lawful. The majority
comes to the same conclusion, but bases its decision on the
fact that, under the NCDCL constitution, the “members” of
the NCDCL are the delegates from the affiliated local unions
rather than the members of the local unions. Maj. Op. at
50 CORNS V . LABORERS INT ’L UNION
28–31. I offer no comment on the validity of this rationale
for the majority’s holding. Even if the members of Local 166
are in fact members of the NCDCL, because the exception
covering levies payable by members of the smaller labor
organization—and not also the exception governing levies
payable by members of the larger umbrella labor
organization—governs, the dues increase was not lawful.
V
Section 101(a)(3) of the LMRDA is best read as requiring
the members of a local labor organization to approve in a
secret ballot all dues and fees increases applicable only to
them. The LMRDA was enacted to protect rank and file
union members from undemocratic union decisionmaking.
The dues increase imposed on Local 166 in this case was
approved in a manner that does not reflect this purpose. The
majority reached the right conclusion, but its interpretation of
§ 101(a)(3) is problematic and will result in the acceptance of
undemocratic labor processes in future cases. I can only
concur in the judgment.