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AUD Brief Opposing Stay of Judge's Order in Carpenters Regional Council Case (Harrington v. Chao)

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

No. 04-1144

THOMAS HARRINGTON, et al., Plaintiffs-Appellees

v.

ELAINE L. CHAO, Secretary of Labor, Defendant-Appellant

RESPONSE OF ASSOCIATION FOR UNION DEMOCRACY, INC., AMICUS CURIAE,
IN OPPOSITION TO DEFENDANT-APPELLANT'S MOTION FOR A STAY PENDING APPEAL

Association for Union Democracy, Inc., amicus curiae, respectfully submits this brief in Opposition to Defendant-Appellant Elaine L. Chao's Motion for a Stay Pending Appeal.

Over four years after plaintiffs filed an administrative complaint with Defendant Secretary of Labor, requesting that the New England Regional Council of Carpenters hold direct election of its officers, and after one previous trip to this Court, the United States District Court has held that the Secretary's treatment of that complaint was "arbitrary and capricious," and ordered the Secretary to take action on it consistent with her own regulations, judicial precedent, and agency practice. The Secretary has appealed from that decision to this Court and moved for a stay pending appeal. That stay should not be granted. First, the relevant statute precludes such a stay. Second, even if analyzed under general standards, the Secretary, who continues to rely exclusively on a single argument that has already been rejected by both this Court and the District Court, has shown little likelihood of ultimate success on the merits.

STATEMENT

Since this matter has been in this Court before, 280 F.3d 50 (1st Cir. 2002), on remand 286 F.Supp.2d 80 (D.Mass. 2003), and since it has proceeded entirely on undisputed facts, a detailed restatement of the facts is unnecessary.

Briefly, federal labor law requires every "local labor organization" (hereafter "local") to elect its officers by direct popular secret ballot of the members, Labor-Management Reporting and Disclosure Act (hereafter LMRDA) ˜401(b), 29 U.S.C. ˜481(b), but does not further define "local labor organization." Defendant Secretary, to whom enforcement of this law is exclusively committed, has for at least thirty years provided by regulation that: "The characterization of a particular organizational unit as a 'local,' 'intermediate,' etc., is determined by its functions and purposes rather than the formal title by which it is known or how it classifies itself." 29 C.F.R.˜452.11 (emphasis supplied). Defendant Secretary has, with judicial approval, found to be "locals" both entities covering large geographic areas, in that case the entire nation, Donovan v. National Transient Division, International Brotherhood of Boilermakers, 736 F.2d 618 (10th Cir. 1984), cert. denied 469 U.S. 1107 (1985)(hereafter Boilermakers); and entities with other entities subordinate to them, Shultz v. Employees' Federation of the Humble Oil and Refining Co., 1970 US Dist LEXIS 12288 (S.D. Tex. 1970)(hereafter Humble). In each of these cases, the Secretary relied on the functions performed by the large entity. In each, the Secretary ordered direct secret ballot election, by the members, of the officers of that large entity.

In 1996 the United Brotherhood of Carpenters reorganized so as to create "Full Services Regional Councils" that, in the Secretary's words, have "all legislative and executive powers on all matters relating to the general interest and welfare of affiliated Local Unions and their members" (Secretary's first Memorandum in Support of Defendant's Motion to Dismiss, at 2, quoting By-Laws, Section 3). In the Secretary's own words, as set out in her Supplemental Statement of Reasons (January 31, 2003), at 9-10:

[The New England Regional Council of Carpenters, or NERCC] negotiates collective bargaining agreements. It has exclusive authority to hire, discipline, promote, and fire all organizers and business representatives within the New England region. The NERCC's Executive Secretary-Treasurer supervises and directs all representatives and organizers. The stewards are appointed by the NERCC's representative, must report all problems arising at the job site to the representative, and serve at the representative's direction. The NERCC determines and levies a portion of the members' dues not determined and levied by the locals, and approves all monthly dues levied by the local unions. The NERCC's Executive Secretary-Treasurer appoints all trial committees.

Despite these findings, Defendant Secretary has refused to require NERCC to conduct direct election of its officers. This refusal has now been found to be "arbitrary and capricious." The District Court, on November 25, 2003, ordered Defendant Secretary "to take appropriate action...consistent with the determination of this Court that the Secretary's failure to treat the New England Council of Carpenters as a statutory 'local labor organization' is arbitrary and capricious." Defendant now seeks a stay of this order, pending its appeal to this Court.

ARGUMENT

Association for Union Democracy, Inc., amicus curiae, opposes the Secretary's motion for a stay on two grounds. First, the LMRDA precludes it. Second, the Secretary has not justified a stay under ordinary standards, and in particular has not demonstrated likelihood of ultimate success on the merits.

I. THE LABOR-MANAGEMENT REPORTING AND DISCLOSURE ACT DOES NOT PERMIT STAY OF AN ORDER OF THE DISTRICT COURT DIRECTING AN ELECTION

The Act provides in ˜402(d), 29 U.S.C. ˜482(d)(emphasis supplied):

An order directing an election, dismissing a complaint, or designating elected officers of a labor organization shall be appealable in the same manner as the final judgment in a civil action, but an order directing an election shall not be stayed pending appeal.

The order of the District Court in this case directs Defendant Secretary "to take appropriate action...consistent with the determination of this Court that the Secretary's failure to treat the New England Council of Carpenters as a statutory 'local labor organization' is arbitrary and capricious." This is not in haec verba an order directing an election. The Secretary is free to use informal efforts to bring NERCC into compliance with its obligations as a local. Nevertheless, it is the practical equivalent of an order of the district court directing an election and, as such, may not be stayed.

In the usual sequence of events, the Secretary of Labor has required an election, the union has resisted, and the district court has sided with the Secretary and ordered that election. This is, by virtue of ˜402(d), indisputably an order that may not be stayed.

By contrast, in the instant case the Secretary has refused to order an election. The complainants have instituted judicial review of her decision under Dunlop v. Bachowski, 421 U.S. 560 (1975)(outlining procedures for judicial review of decision by Secretary of Labor not to initiate proceedings under LMRDA Title IV), and the district court has now upheld that complaint, ruling that the Secretary's refusal to require election of NERCC officers is "arbitrary and capricious". The application of ˜402(d) to such a Bachowski order appears not to have been previously decided. However, application of ˜402(d) to a Bachowski order is both logical and necessary to achieve the purposes of LMRDA Title IV.

Whether the appellant is a union or the Secretary of Labor, a refusal to stay the order of the district court "is consistent with [Congress's] concern that challenges to incumbents' titles to office be resolved as quickly as possible." Wirtz v. Glass Bottle Blowers Ass'n., 389 U.S. 463, 468 n.7 (1968). Union elections are the entire point of LMRDA Title IV, extended to union members, not as a government benefit grudgingly hedged with restrictions, but as a vital part of the national labor policy, in vindication of the public interest in eliminating and preventing "improper practices on the part of labor organizations....", LMRDA ˜2(c), 29 U.S.C. ˜401(c). Congress expressly provided, in ˜402(d), that a union respondent with objections, even meritorious objections, to the Secretary's election order, may have to undergo that election first and pursue its objections later. There is no reason to assume that the same sequence is inadequate for the presentation of the Secretary's objections to a Bachowski order.

In any event, even if this Court should hold that this motion for a stay is not literally governed by ˜402(d), the section nevertheless states an important policy concern of Congress, that at least enters the balance of equities in evaluating the Secretary's motion for a stay.

II. THE SECRETARY HAS FAILED TO JUSTIFY A STAY UNDER ORDINARY STANDARDS

The standards for granting a stay under Federal Rules of Appellate Procedure 8(a)(2) were summed up by the Supreme Court in Hilton v. Braunskill, 481 U.S. 720, 776-77 (1987):

1. Whether the applicant has made a strong showing of success on the merits;
2. Whether the applicant will be irreparably harmed absent injunctive relief;
3. Whether issuance of the stay will injure other parties; and
4. Where the public interest lies.

This Court has made it clear that the first of these factors is by far the most important. "The sine qua non of the stay pending appeal standard is whether the movants are likely to succeed on the merits." Acevedo-Garcia v. Vera-Monroig, 296 F.3d 13, 16 (1st Cir. 2002), quoting Weaver v. Henderson, 984 F.2d 11, 12 (1st Cir. 1993). Indeed, if the case on the merits is weak it is not necessary ("supererogatory") to consider the other factors. Weaver, 984 F.2d at 14 n.5.

A. The Secretary has failed to demonstrate likely success on the merits

The argument of Defendant Secretary is such a weak case. Through more than four years of administrative and judicial procedure, Defendant Secretary has advanced precisely one reason why she will not require direct election of NERCC officers: the continuing existence of the older Carpenters "locals." This purported reason, her only reason, has already been rejected by this Court.

Throughout the past four years, plaintiffs have sought the creation of no new law. They have sought only the application by Defendant Secretary of the longstanding regulation and practices of her Department. As mentioned above, and discussed in more detail in the opinions of this Court and the District Court on remand, the Department, until its decision in the instant case, pursued a consistent path when evaluating a union member's claim that a particular body must hold an election. It has examined the "functions and purposes" of that organization, just as its regulation, 29 C.F.R.˜452.11, provides. If the organization makes the crucial decisions with major impact on the lives of members-if, for example, it appoints the grievance stewards, enforces the contract, invokes grievance procedures, hires all the staff, levies and retains most dues, and (in the construction trades) controls admission to the trade, referral to jobs, and discipline of members, it is that member's local and must hold direct elections.

Over the years, nearly all of these decisions have been made by lower level administrators in the Department's regional offices. These decisions are not published, officially or unofficially, and are thus not available to practitioners. Instructive and illustrative, however, is one such letter, shared with counsel for amicus by an attorney involved in the matter, presented to the District Court as an exhibit to Plaintiffs' Motion for Summary Judgment, and appended to this Response. By letter, an administrator in the Department's San Francisco office informed the International Union of Security Officers that it was a "local labor organization," required to elect officers by direct popular ballot. The letter is in no way precedent. It merely illustrates what counsel in the area have long regarded as the Department's consistent practice. Although it described itself as an "International," the International Union of Security Officers, for most of its members, received all dues, negotiated and ratified collective agreements, and disciplined members. In determining that the "International" was a statutory local, the Department of Labor was not dissuaded by the fact that, subordinate to this "International", was at least one functioning local. The letter employs none of the analysis advanced by counsel for the Defendant Secretary throughout this litigation. It makes no analysis of the overall structure of the union and no findings on any functions performed by the smaller group that the union called a "local."

Only twice has the Department's interpretation of "local labor organization" been reviewed judicially. Both cases upheld the Department's "functional" approach. The first found to be a "local labor organization" a union with subordinate divisions, where the large entity "performs the basic local union functions. It settles grievances, collects dues and establishes wages, benefits and working conditions by contract negotiations with the employer, and disciplines the members and officers." Humble, 1970 US Dist LEXIS at *13. "The local [that is, the defendant] is the member's direct contact with his labor union, the unit through which his grievances are resolved, his wages and benefits determined and to which he pays his dues." Id. *14. The second found to be a "local labor organization" the national division of an international union. Boilermakers, supra. Both decisions focused, as the quoted passages indicated, on the functions performed by the challenged entity. Neither employed the structural analysis advanced by counsel in the instant case.

In this Court's previous decision in this case, it held, 280 F.3d at 58:

Given the similarities between this case and Boilermakers and Humble Oil, the Secretary must provide some explanation distinguishing these cases. We cannot now say whether the Secretary has changed her interpretation or departed from the regulation, but we can say with fair assurance that substantial questions have been been raised and the Secretary's statement is inadequate to permit us to resolve them. In that sense-the inadequacy of her statement-the statement is arbitrary.

The Department responded with silence for close to a year, followed by the issuance (on January 31, 2003) of a Supplemental Statement of Reasons, found by the District Court to be arbitrary and capricious.

Throughout the entire course of this litigation, the Secretary has suggested precisely one reason for not treating NERCC as a statutory local labor organization. When the United Brotherhood of Carpenters created the system of regional councils, it did not eliminate traditional locals. These locals continue to exist, with powers limited to social events, modest dues levies (subject to revision by the regional council), and election of delegates. They play no formal or informal role in contract negotiation, contract enforcement, job referral, or member discipline.

The Secretary's position, with the tenacity of a bulldog, has been that the continuing existence of these traditional locals prevents the NERCC from being a statutory "local." This position is found in no publication of the Department of Labor until the argument of counsel in the instant case. She argued the point strongly in her previous appearance in this Court, which declined to accept it without additional explanation. She argued it again on remand to the District Court, which found it "arbitrary and capricious." As the District Court held, 286 F.Supp.2d at 85: "The issue under the traditional test, as defined by the Court of Appeals, is not whether the NERC's locals perform some of the tasks associated with a labor union, but rather (in the Secretary's own words) whether the NERC as an intermediate body, 'has taken on so many of the traditional functions of a local union that it must in actuality itself be considered a local union.' Supplemental Statement, at 3. See Harrington, 280 F.3d at 57 (the relevant inquiry is an examination of the functions 'of the entity in question.')"

As this Court has already intimated, 280 F.3d at 57, and as the District Court found, to analyze the statutory status of the NERCC, by looking instead at the traditional locals, is "arbitrary and capricious" in at least two related ways. First, it violates the Secretary's own regulation, which states that determining the status of a disputed organization requires examining its "functions and purposes." Second, it is flatly inconsistent with the Humble Oil case, in which the presence of weak subordinate entities strengthened, not weakened, the case that the larger entity was the local. That is why the argument that the NERCC cannot be a local if the traditional locals had any function or purposes "is precisely the rationale that the Court of Appeals found wanting", 286 F.Supp.2d at 85.

Defendant Secretary has never suggested any reason, other than the persistence of the traditional locals, for refusing to require NERCC to hold elections. While invited by this Court to examine her approach in light of recent developments in the construction industry and union organization, 280 F.3d at 61, she has declined to do so. While invited by this Court to reexamine the earlier precedents, 280 F.3d at 58 n.10, she has not done that either. Despite disparaging remarks about their age, she continues to maintain that her approach is consistent with them. The Secretary has never suggested any practical or theoretical difficulty in conducting a direct secret ballot election among the carpenters throughout New England. Nor has the Secretary, who, unlike private counsel, does have access to unreported decisions of her administrators, ever produced any previous decision like her arbitrary and capricious decision here, in which a powerful entity, performing the functions of a local, was determined not to be a local because of the presence of weak subordinate organizations. Finally, the Secretary has always conceded that the NERCC performs many functions of a local labor organization: the standard of her own regulation.

In short, the Secretary has presented one argument in favor of her decision. That argument has already been found "inadequate" and "arbitrary" by this Court and "arbitrary and capricious" by the District Court on remand. This does not suggest a strong probability of success on the merits.

B. Other Factors Relevant to the Issuance of a Stay Favor Plaintiffs

While this Court may refuse Defendant's motion for a stay merely because of the weakness of the Secretary's case on the merits, the other three relevant factors also favor Plaintiffs.

1. The Secretary will not be irreparably harmed absent a stay

Absent a stay, the Secretary must "take appropriate action...consistent with the determination of this Court that the Secretary's failure to treat the New England Council of Carpenters as a statutory 'local labor organization' is arbitrary and capricious." She has not been ordered to file a lawsuit. She must presumably contact the NERCC and notify them that as a local labor organization they must elect their officers. At that point, the ball will be in the Carpenters' court. If the union complies voluntarily, no further role for the Secretary is contemplated. She will not be called on to supervise a union election, unless the actual holding of the election is marred by irregularities, something that there is no reason to presume. If, contrary to our argument above, the decision of the District Court involves legal error, it may be reversed at some future time without any intervening harm to the Secretary, the sequence that Congress clearly mandated when a union claims error in an analogous District Court order.

The Secretary's Motion intimates, at 11 n.5, constitutional objections to the order of the District Court. A judicial order requiring an administrative agency to evaluate a complaint consistent with its own regulations and practices creates no constitutional problems. Administrative Procedure Act, 5 U.S.C. ˜706. It is true that Dunlop v. Bachowski, supra, 421 U.S. at 575-76, intimated constitutional problems in a hypothetical judicial order that required the Secretary to initiate litigation. No such order has been issued in this case or necessarily will ever be ordered. Moreover, the relevant constitutional landscape has changed considerably since the Bachowski case. See, e.g., Morrison v. Olson, 487 U.S. 654, 677-97 (1988)(upholding independent counsel provisions of Ethics in Government Act over objection that supervision of such an executive officer by federal judge violated constitutional separation of powers).

2. Issuance of a stay would definitely injure working carpenters

The District Court has now found that the NERCC is, and presumably has been since its creation in 1996, the statutory local labor organization for carpenters throughout New England. The Secretary does not dispute that the NERCC makes essentially all the decisions with direct impact on carpenters' working lives. The NERCC negotiates the contracts, decides which provisions to enforce vigorously and which to settle, hires and supervises staff, spends essentially all the money. Yet since 1996, carpenters have been deprived of their federal right to elect their local officers. Carpenters have been patient throughout the lengthy litigation, through long silences from the Department of Labor, punctuated by periodic iteration of the same, solitary, weak argument. While there is no mathematical formula for concluding at what point deprivation of the right to vote becomes injury, that point has surely long been passed by now. If the Secretary has no better reason for denying Carpenters their right to vote than the existence of traditional locals, a fact not disputed and well-known to every court to consider the case, there is no justification for their continued deprivation.

3. The public interest disfavors a stay

As noted above, the federal right of union members to elect their officers is not part of a statute of legislative handouts or subsidies. The right is an integral part of the strategy adopted by Congress in 1959 after years of hearings on sordid corruption and other improper practices in some elements of the labor movement. Congress's solution, a bold one, was not to emphasize the enactment of new criminal statutes or enhance enforcement of existing statutes, but instead, for all unions, to "protect the rights of rank-and-file members to participate fully in the operation of their union though processes of democratic self-government, and, through the election process, to keep the union leadership responsive to the membership." Wirtz v. Hotel Employees, 391 U.S. 492, 497 (1968). "Congress emphatically asserted a vital public interest in assuring free and democratic union elections that transcends the narrower interest of the complaining union member." Wirtz v. Glass Bottle Blowers, supra, 389 U.S. at 475.

If Defendant's motion for a stay is denied, the consequence will be that the Secretary will have to make a telephone call or send a letter, for which she may blame the District Court. (The Secretary's suggestion, Motion at 1, that appealing an order is taking action consistent with it, is absurd). The United Brotherhood of Carpenters will then have to decide on its response. It is long past time to initiate this process, and difficult to see what harm could arise from it.

CONCLUSION

For the foregoing reasons, Association for Union Democracy, Inc., amicus curiae, respectfully submits that the motion of Defendant for a stay pending appeal should be DENIED.

Dated: January 30, 2004 Respectfully submitted,

Association for Union Democracy, Inc.
by its attorney

By _______________________________
Alan Hyde, Court of Appeals Bar No. 77691
Rutgers University School of Law
123 Washington Street
Newark, NJ 07102-3094
(973) 353-3163

Articles on the Harrington case and the Carpenters reform movement:
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Consolidation in the Construction Trades
Carpenters form National Reform Group
Reformers Jolt Carpenters Convention
Carpenters Reformers Win in New England
Court challenges DOL on Carpenters Regional Council
Harrington v Chao: Judge Stearns's "memorandum and order" (pdf)
AUD Bill of Rights for the Building Trades
AUD brief opposing stay of order
Sample letter requesting direct elections
Letter to Carpenters from Carl Biers
Court deals setback for democracy in Carpenters union
Links to Carpenters rank-and-file websites

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