SHEET METAL WORKERS' INTERNATIONAL ASSOCIATION, ET AL., PETITIONERS V. EDWARD LYNN No. 86-1940 In the Supreme Court of the United States October Term, 1987 On Petition for a Writ of Certiorari to the United States Court of Appeals for the Ninth Circuit Brief for the United States as Amicus Curiae This brief is submitted in response to the Court's order inviting the Solicitor General to express the views of the United States. TABLE OF CONTENTS Question presented Statement Discussion Conclusion QUESTION PRESENTED Whether an elected union official's removal from office in retaliation for his expression of views on matters of union governance, which removal is part of a purposeful and deliberate attempt to suppress dissent within the union, gives rise to a cause of action under Section 102 of the Labor-Management Reporting and Disclosure Act of 1959, 29 U.S.C. 412. STATEMENT 1. Petitioners are two labor organizations, an international union and one of its locals, /1/ that are subject to the Labor-Management Reporting and Disclosure Act of 1959 (LMRDA), 29 U.S.C. (& Supp. III) 401 et seq. Title I of the LMRDA gives members of labor organizations certain rights, including "equal rights and privileges * * * to nominate candidates, (and) to vote in elections" (Section 101(a)(1), 29 U.S.C. 411(a)(1)) and the rights "to express any views, arguments, or opinions" and "to express at meetings of the labor organization (their) views * * * reasonable union rules. Section 101(a)(2), 29 U.S.C. 411(a)(2). Members may sue in federal court to obtain "such relief (including injunctions) as may be appropriate," if these rights are infringed. Section 102, 29 U.S.C. 412. In June 1982, at the request of the officers, business representatives, and the business manager of Sheet Metal Workers' Local 75, and to alleviate the local's financial problems, the international union placed the local under trusteeship (Pet. App. 2a). Under the international's constitution, the trustee had authority "'to take such action as he deems necessary to protect the interest and welfare of the local'" (id. at 33a) including "'the right to suspend local union or council officers, the business managers, or the business representatives'" (id. at 11a-12a). /2/ The trustee determined that the solution to the local's financial difficulties was an increase in its membership dues and initiation fee (id. at 2a). Respondent Lynn, who had been elected to a business representative position in the local before the imposition of the trusteeship, opposed these increases at a special membership meeting called to consider them (Pet. App. 2a). The membership of the local, by a narrow vote, rejected the proposed increases (id. at 11a n.6). Five days later, the trustee informed respondent that he was being removed from his business representative position indefinitely because of his opposition to the increases and for other actions detrimental to the interests of the union and its membership (ibid.). 2. Respondent sued both the international and local unions in federal district court. The first of his two claims alleged that removal from his elected position in the local union infringed his free speech rights under Title I of the LMRDA (Pet. App. 3a). /3/ The district court, finding no material factual dispute as to the reason for respondent's discharge, granted summary judgment to petitioners on the ground that, as a matter of law, respondent had not alleged a violation of any LMRDA rights (id. at 36a). Specifically, the district court held that respondent was removed from office for opposing the trustee's proposed increases at a time when he "was serving in this position at the pleasure of the trustee" (ibid.). In these circumstances, the district court concluded that respondent's "Section 411(a)(2) right as a member to speak out on issues involving union affairs was not diminished or impaired by his dismissal from employment as a full-time agent of the local union" (ibid.). /4/ In so ruling, the district court cited Finnegan v. Leu, 456 U.S. 431 (1982), in which this Court held that the discharge of appointed officials of a local union for opposing the election of a union president did not violate the LMRDA. The court read Finnegan as standing for the proposition that "(a) union member's statutory right to oppose union policies affords him no protection against dismissal from employment as an agent of the union because of such opposition" (Pet. App. 36a). 3. A divided court of appeals reversed, holding that "at a minimum, a retaliatory removal from elective office violates Section 102 of the LMRDA when it occurs as 'a purposeful and deliberate attempt * * * to suppress dissent within the union'" (Pet. App. 8a, quoting Schonfeld v. Penza, 477 F.2d 899, 904 (2d Cir. 1973)). The majority noted the language in Finnegan stating that both LMRDA Sections 609 and 101 (29 U.S.C. 529, 411) protect individuals in their status as members, not as officers of the union (Pet. App. 8a-9a). However, citing Section 102 of the LMRDA, which protects "(a)ny person" whose Title I rights are violated, and which this Court noted in Finnegan (456 U.S. at 439) "provides independent authority for a suit against a union based on an alleged violation of Title I of the Act," the court of appeals concluded that "under certain circumstances, an official who alleges that union actions have infringed upon his Title I rights may state a cause of action under section 102" (Pet. App. 9a). The court further concluded that respondent had alleged an infringement of his free speech rights under Section 101(a), 29 U.S.C. 411(a) (Pet. App. 9a-11a). The majority recognized that in this case, as in Finnegan, the infringement was only indirect, in that the dismissal made the loss of union office a cost of the exercise of Section 101 rights (Pet. App. 10a-11a). Stating that the Finnegan court had not held that only direct infringements of Title I rights were actionable, the court of appeals proceeded to reach the question explicitly raised but not decided in Finnegan -- whether Title I of the LMRDA places limits "on a union's authority to utilize dismissal from union office as 'part of a purposeful and deliberate attempt . . . to suppress dissent within the union,' cf. Schonfeld v. Penza, 477 F.2d 899, 904 (CA2 1973) * * * " (456 U.S. at 441). The court of appeals referred to the LMRDA's "'overriding objective'" of ensuring "'that unions would be democratically governed, and responsive to the will of the union membership as expressed in open, periodic elections'" (Pet. App. 11a (quoting Finnegan, 456 U.S. at 441)) and noted that this case involves, not an appointive post that is part of a union patronage system, but "an elected officer who is speaking not only for himself as a member, but also as a representative of those members who elected him" (Pet. App. 11a (footnote omitted)). With these considerations in mind, the court of appeals found that allegations that an elected officer was removed in order to suppress dissent stated a claim under Section 102 (Pet. App. 8a, 11a, 13a). /5/ Accordingly, it reversed the district court's grant of summary judgment and remanded for futher proceedings. Judge Kennedy dissented (Pet. App. 24a-27a), asserting that the majority had misconstrued "whatever exception to its holding the Supreme Court intended to leave open in Finnegan" (id. at 25a). He argued (id. at 26a) that it made no difference that respondent was elected to his office, rather than appointed, and maintained that, "(a)t least absent allegations that his suspension was part of a scheme to subvert the union's basic democratic structure * * * the injury suffered by Lynn (was) primarily connected with his status as an officer, not a union member, and does not support a claim under the LMRDA" (id. at 26a-27a). DISCUSSION The court of appeals remanded this case to the district court, which evidently is to determine whether respondent suffered "a retaliatory removal" that was "'a purposeful and deliberate attempt * * * to suppress dissent within the union'" (Pet. App. 8a (citation omitted)). /6/ In holding that such a removal of an elected union official would constitute a violation of Title I rights, the Ninth Circuit did not depart from either this Court's decision in Finnegan or from the emerging consensus among the courts of appeals. While it is unclear whether significant discord ultimately will emerge on the existence and proper limitations of exceptions to the Finnegan rule, no clear disagreement exists at the present time, and certainly the holding of the Ninth Circuit in this case does not conflict with that of any other court of appeals. Moreover, the holding of the court below, if not every phrase of its opinion, /7/ appears to embody a faithful reading of this Court's opinion in Finnegan. Accordingly, the petition for a writ of certiorari should be denied. 1. a. When a union's adverse action against one of its officials is challenged under Section 102 of the LMRDA, analysis properly begins with this Court's decision in Finnegan v. Leu, 456 U.S. 431 (1982). In Finnegan, the newly elected President of a union local, acting pursuant to the local's bylaws, discharged appointed union business agents who were political supporters of the incumbent he had just defeated and replaced them with appointees loyal to himself (456 U.S. at 433-434). The former business agents brought an action in federal district court under Section 102 of the LMRDA, /8/ claiming that their discharge violated Sections 101 and 609 of the LMRDA, 29 U.S.C. 411, 529. Section 101 "guarantee(s) equal voting rights, and rights of speech and assembly, to '(e)very member of a labor organization' (emphasis added)" (456 U.S. at 436 (footnote omitted), quoting Section 101); Section 609 "renders it unlawful for a union or its representatives 'to fine, suspend, expel, or otherwise discipline any of its members for exercising any right to which he is entitled under the provisions of this Act.' (Emphasis added.)" (456 U.S. at 436 (footnote omitted), quoting Section 609). After emphasizing (456 U.S. at 435-437) that the LMRDA protects individuals in their capacity as union members, not union officers, the Court held that discharge from office is not "discipline" within the meaning of Section 609, which does not "establish a system of job security or tenure for appointed union employees" (456 U.S. at 438). The Court found it "evident," however, "that a litigant may maintain an action under Section 102 -- to redress an 'infringement' of 'rights secured' under Title I -- without necessarily stating a violation of Section 609" (id. at 439 (quoting Section 102)). In analyzing the alleged infringement of the discharged officers' Title I rights, the Court noted that only an indirect interference was asserted: the officers had to choose between exercising their rights of free expression and retaining their union jobs (456 U.S. at 440). The Court then said (id. at 440-441 (footnotes omitted)): We need not decide whether the retaliatory discharge of a union member from union office -- even though not "discipline" prohibited under Section 609 -- might ever give rise to a cause of action under Section 102. For whatever limits Title I places on a union's authority to utilize dismissal from office as "part of a purposeful and deliberate attempt . . . to suppress dissent within the union," cf. Schonfeld v. Penza, 477 F.2d 899, 904 (CA2 1973), it does not restrict the freedom of an elected union leader to choose a staff whose views are compatible with his own. Indeed, neither the language nor the legislative history of the (LMRDA) suggests that it was intended even to address the issue of union patronage. * * * Far from being inconsistent with this purpose, the ability of an elected union president to select his own administrators is an integral part of ensuring a union administration's responsiveness to the mandate of the union election. The Court also specifically held open the question "whether a different result might obtain in a case involving nonpolicymaking and nonconfidential employees" (id. at 441 n.11). b. Since Finnegan, three courts of appeals have specifically addressed the applicability of Section 102 to indirect interference with Title I rights that takes the form of dismissal from union office: the Fifth Circuit (Adams-Lundy v. Ass'n of Professional Flight Attendants, 731 F.2d 1154 (1984)); the Second Circuit (Cotter v. Owens, 753 F.2d 223 (1985)); and the Ninth Circuit in this and another case (Brett v. Hotel Union, Local 879, 828 F.2d 1409 (1987)). /9/ In the first appellate decision following Finnegan, the Fifth Circuit in Adams-Lundy stated that union actions against elected officers which are aimed at stifling dissent and suppressing union reform efforts could constitute a violation of Section 102, but found no such violation presented on the facts before it (731 F.2d at 1158). In sketching the requirements of a valid suppression-of-dissent claim, the Fifth Circuit stressed that plaintiffs must show "that their suspension was part of a scheme to subvert the union's basic democratic structure of otherwise directly implicated rights of members" (id. at 1159). It then found that plaintiffs had "not seriously attempted to carry (their) burden" because there was no "claim or proof that the defendants (were) attempting to dismantle the union's electoral system, not that members opposing that faction (were) in any fashion suppressed or threatened with reprisals" (ibid.). The Fifth Circuit specifically rejected the suggestion that a dismissal of an elected officer automatically infringes the voting rights of those who elected him (ibid.). In Cotter v. Owens, the Second Circuit was presented with a plaintiff who "sought to prove that his removal (from a union committee) was part of an over-all scheme to suppress dissent, by detailing the history of past and present litigation between his dissident group, or its precursors, and the union leadership" (753 F.2d at 229). The court decided that its earlier decision in Schonfeld v. Penza, supra, quoted by this Court in Finnegan (456 U.S. at 441), retained its vitality, and found a genuine issue of fact "as to whether the removal of Cotter from the Committee was not merely an isolated act or retaliation * * * , but was part of a 'purposeful and deliberate attempt to suppress dissent within the union'" (753 F.2d at 230 (quoting Schonfeld, 477 F.2d at 904)). The Second Circuit therefore remanded the case to the district court to determine whether plaintiff's removal "was part of a broader anti-democratic scheme" (753 F.2d at 230). The Ninth Circuit decisions in the present case and in Brett are the most recent court of appeals discussions of the existence and scope of a suppression of dissent exception to the rule announced in Finnegan. In Brett, the court affirmed a verdict and award to an elected union steward who was removed from her position. The court was careful to note that it was not holding that "an elected official always has a cause of action," and repeated the holding of Lynn -- "that at a minimum an elected official has a cause of action when he or she suffers a retaliatory removal which occurred as a purposeful and deliberate attempt to suppress dissent within the union" (828 F.2d at 1416 n.11). Based on the facts developed at trial, the court found that the jury reasonably could have determined "that the Union engaged in a deliberate, purposeful attempt to suppress dissent within the Union * * * and that Brett's removal was part of that campaign" (id. at 1416). The evidence in Brett included a showing that the union had "done everything it could, including several acts judicially determined to be illegal" to thwart the leadership ambitions of a close political ally of Brett's (ibid.). All three courts of appeals that have addressed the issue of indirect interference with Title I rights since Finnegan thus agree that adverse actions relating to officer status can give rise to a cause of action under Section 102 where their purpose is the suppression of dissent within the union. In addition, all of those courts have indicated (Adams-Lundy, 731 F.2d at 1159; Cotter, 753 F.2d at 230; Brett, 828 F.2d at 1416-1417) that in order to be actionable the suppression must take the form of a concerted program, rather than just an isolated instance of retaliation, and the Fifth Circuit (Adams-Lundy, 731 F.2d at 1158) has suggested that a threat to "the democratic character of the union" may be relevant. No court has rejected the proposition that Section 102 can provide a remedy where officers are sanctioned in order to stifle members' dissent. 2. We believe that the courts of appeals have correctly sketched the outlines of the Section 102 enforcement provision as it relates to actions against union officers, and that there is no reason that those courts should not be left to elaborate more fully the proper operation of that statute. The courts of appeals' consistent recognition of a Section 102 remedy for dismissal of officers as part of an effort to suppress dissent accords with both the language of the statute and the explicit reservation of the issue in Finnegan. Although such removals present only an indirect affront to Title I rights by imposing a cost on their exercise, the courts of appeals' interpretation is fairly encompassed by the language of the statute, which refers to rights being "infringed" (Section 102, 29 U.S.C. 412). It is common to talk of a right being infringed without being eliminated. We know of no indication in the legislative history that Congress's purpose of protecting the rights created by Title I was limited to direct deprivations of those rights and did not include more subtle schemes that have as their object the curtailment of union democracy. The courts of appeals have also properly found that a purpose of suppressing dissent and an over-all program of suppression are necessary conditions of a cause of action under Section 102. The requirement of an anti-democratic purpose accords with Finnegan, which noted explicitly that the local President's actions had put a price on the exercise of protected rights, but found that burden permissible because it served the justifiable purpose of allowing an elected officer freedom "to choose a staff whose views are compatible with his own" (456 U.S. at 441 (footnote omitted)). It is a familiar aspect of intent-based standards that a particular action -- here, dismissal of an officer -- can be proper or improper depending on its objective. Moreover, the question explicitly left open in Finnegan was whether "'purposeful'" suppression of dissent would be actionable. Similarly, Section 102 is best read as providing a remedy for concerted programs of suppression, rather than isolated instances of retaliation. A program requirement will focus the remedy on those situations where the underlying value of union democracy is most clearly and seriously threatened, while limiting judicial intrusions into the union automony that the LMRDA is designed to preserve. The details of the purpose and program elements can best be worked out through further litigation in the lower courts. We also agree with the apparent consensus among the courts of appeals that (except as an evidentiary matter in certain cases) /10/ the availability of a Section 102 action does not turn on whether the officer who is discharged or otherwise sanctioned was appointed or elected. /11/ The conflicting lines of authority that were resolved by Finnegan included cases involving both kinds of officers (see 456 U.S. at 433 & n.1), and Finnegan made no suggestion that either its rule or the possible exception involving suppression of dissent depended on a distinction between elective and appointed office. Such a distinction would rest on the conclusion that a member's Title I rights include freedom from interference with the tenure of union officers for whom he has voted. However, tenure of office -- including the circumstances justifying removal -- is defined by applicable union rules and federal law, and the right to have one's candidate remain in office should not entail any additional protections of an officer's tenure. While any attempt directly to interfere with the right to vote would be actionable under Section 102, that provision should not be construed to provide a remedy for the indirect interference with voters' rights that arises when an elected official is removed from office (see Adams-Lundy, 731 F.2d at 1159). In view of the general agreement that appears to be emerging among the courts of appeals, the interest in nationwide uniformity does not a present call for a resolution by this Court. /12/ Moreover, the difficult distinction between the political defeat of a minority within a union -- with its accompanying loss of positions among the officer ranks -- and actions taken to institutionalize that defeat by impairing the operation of union democracy, will be further illuminated through the litigation of additional cases in the lower courts. CONCLUSION Accordingly, the petition for a writ of certiorari should be denied. Respectfully submitted. CHARLES FRIED Solicitor General DONALD B. AYER Deputy Solicitor General JOHN HARRISON Assistant to the Solicitor General GEORGE R. SALEM Solicitor of Labor ALLEN H. FELDMAN Associate Solicitor STEVEN J. MANDEL Counsel for Appellate Litigation EDWARD D. SIEGER Attorney Department of Labor FEBRUARY 1988 /1/ Petitioner Local 75 was dissolved effective March 1, 1985. Two other locals, not parties below or before this Court, apparently have joint responsibility for Local 75's liabilities and other legal obligations. See Pet. App. 6a n.2. /2/ A local union under trusteeship loses its autonomy and is governed by a trustee who may suspend elections and relieve local officers of their duties. See 29 C.F.R. 452.15. Title III of the LMRDA limits the circumstances under which trusteeships may be imposed and otherwise regulates the manner in which they are conducted. See 29 U.S.C. 461-464. Title III is enforced by both the Secretary of Labor and local union members. 29 U.S.C. 464. /3/ Respondent also asserted a violation of Section 301 of the Labor Management Relations Act, 29 U.S.C. 185, for breach of a collective bargaining agreement because of an alleged failure to refer respondent to jobs through the local union's hiring hall (see Pet. App. 4a). Both lower courts ruled against respondent on this issue and he did not cross petition for review of those decisions. Respondent also was fined $2,500, apparently in response to his opposition to the trustee's policies (id. at 2a-3a). The validity of this fine was not an issue before the court of appeals (see id. at 5a) and has not been raised here. /4/ The court also found that respondent's removal did not amount to "discipline" within the meaning of either LMRDA Section 101(a)(5), 29 U.S.C. 411(a)(5), or Section 609, 29 U.S.C. 529 (Pet. App. 36a). Section 101(a)(5) makes it unlawful for a labor organization to fine, suspend, expel or otherwise discipline a union member, except for nonpayment of dues, without affording the member certain procedural safeguards. Section 609 makes it unlawful for a labor organization to fine, suspend, expel, or otherwise discipline any of its members for exercising rights protected by the LMRDA. /5/ The court also recognized that respondent's local was under a legitimate trusteeship at the time of his removal and that under the union constitution a trustee had the authority to suspend local business representatives such as respondent (Pet. App. 11a-12a, 13a). The court rejected petitioners' argument, however, that even if respondent's removal from office ordinarily would violate his Title I rights, the removal was properly based on the trustee's authority. The court reasoned that a trustee may not use his powers for "illegitimate purposes," such as "retaliation for the exercise of a right protected by the LMRDA" (id. at 13a). /6/ In reversing the district court's grant of summary judgment for petitioners, the court of appeals found that respondent "alleged a cause of action under section 102" (Pet. App. 11a), and remanded the case to the district court "for further proceedings" (id. at 23a). While the court was not explicit in defining the task before the district court, it necessarily requires a determination whether the undisputed facts, of the facts as found after a hearing, present a violation of Section 102 as that provision was construed by the court of appeals. /7/ See note 11, infra. /8/ Section 102, 29 U.S.C. 412, states in pertinent part: Any person whose rights secured by the provisions of this subchapter have been infringed by any violation of this subchapter may bring a civil action in a district court of the United States for such relief (including injunctions) as may be appropriate. * * * /9/ Two other courts of appeals have dealt with actions under Title I challenging dismissal of union officers. In Dolan v. Transport Workers Union, 746 F.2d 733 (1984), the Eleventh Circuit reversed a jury verdict in favor of a plaintiff who had been removed from her elected position as President of a union local. The court ruled that the jury instructions incorrectly allowed a verdict for plaintiff where the action against her was taken in retaliation for "officer speech" -- which it found to be unprotected under Title I of the LMRDA -- as distinguished from "member speech" (746 F.2d at 741-743). The court of appeals also indicated that the case before it involved "individual officers' claims concerning their own membership speech rights," and that it was leaving to "another day" the questions presented by "(a)llegations that discharge of an officer was 'part of a purposeful and deliberate attempt to suppress dissent within the union.' * * * See Finnegan, supra, 102 S. Ct. at 1873 quoting Schonfeld v. Penza, 477 F.2d 899, 904 (2d Cir. 1973)" (746 F.2d at 742 n.17). The court thus did not decide the issue resolved by the Ninth Circuit here -- whether Title I rights can be violated by the removal of a union officer as a part of a deliberate attempt to suppress dissent among union members. In Sullivan v. Laborers' Int'l Union of North America, 707 F.2d 347 (1983), the Eighth Circuit addressed the related issue of the applicability of Section 101(a)(5) of the LMRDA (29 U.S.C. 411(a)(5)) to a dismissal from union office and an order preventing a member from being elected to office. Section 101(a)(5) provides procedural protections to union members who are "fined, suspended, expelled, or otherwise disciplined." The Eighth Circuit, relying on Finnegan, held that removal from office is not discipline within the meaning of Section 101(a)(5), but that revocation of a member's eligibility to be elected is discipline (707 F.2d at 350). Sullivan does not deal with the substantive rights to free expression which are at issue in this case, which arise under Section 101(a)(1) and (2). /10/ For example, if an elected officer were dismissed in conjunction with an explicit threat that there would be further retaliation against all his supporters, then the officer's status "as a representative of those members who elected him" (Pet. App. 11a) could be probative of a program to overthrow union democracy. Similarly, the fact that an officer was appointed by and hence possibly an agent of, another officer of the union could, in an appropriate case, indicate that a removal rested on legitimate considerations of union governance of the sort approved in Finnegan, rather than an impermissible antidemocratic purpose. /11/ This is not to say that the Ninth Circuit's opinions in this case and in Brett do not contain passages which might be read in isolation to attach great significance to an officer's elected status. "(T)he removal of an elected official for exercising his free speech rights would in effect nullify a member's rights to vote for a candidate whose views he supports" (Pet. App. 11a n.7); see Brett, 828 F.2d at 1415-1416. We think it clear from a full reading of both opinions, however, that neither holds elected status to be either a necessary or a sufficient condition of an action under Section 102 for removal of a union officer. /12/ The Ninth Circuit in this case found unhelpful the Eleventh Circuit's distinction in Dolan between officer speech and member speech (Pet. App. 10a n.5). Judge Kennedy agreed that it is "unnecessary and problematic" (id. at 26a). The majority noted, however, that its decision would have been the same even employing the Eleventh Circuit's distinction, since it was not plausible to suggest that respondent's opposition to the dues increase could have been understood as officer speech (id. at 10a n.5).