American Postal Workers Union, Afl-Cio, Headqtrs Local 6885 v. American Postal Workers Union, Afl-Cio

Appellants, a local union and its members, challenge a contract agreed to by their parent union, the American Postal Workers Union, and employer, the United States Postal Service. Seeking injunctive, declaratory, and compensatory relief, appellants argue that the bargaining process leading to the contract was defective in a number of ways and violated their rights under the federal labor laws. They appeal from orders of the district court dismissing the allegations against the Postal Service defendants and granting summary judgment with respect to the claims against the union defendants. We agree with appellants that the union's refusal to submit the collective bargaining agreement to the local for ratification, while giving other union members the right to ratify their contracts, was inconsistent with the equal rights provision of the Labor-Management Reporting and Disclosure Act of 1959, § 101(a)(1), 29 U.S.C. § 411(a)(1) (1976). We therefore find the district court's order of summary judgment on that claim erroneous and reverse for further consideration of the parties' contentions. On all other issues, we affirm.

The Postal Reorganization Act of 1970 (PRA), 39 U.S.C. §§ 101-5605 (1976), provided for the first time that postal labor relations were to be similar to those in the private sector and were, to the extent consistent with the PRA, to be subject to the requirements of the National Labor Relations Act (NLRA), 29 U.S.C. §§ 151-169 (1976). See 39 U.S.C. § 1209(a) (1976). The American Postal Workers Union (APWU or union) was created in July, 1971, with the merger of four national unions, each representing one craft in the United States Postal Service (USPS or Postal Service). The union conducted collective bargaining negotiations with the Postal Service, which resulted in a "National Agreement" dated July 20, 1971. That agreement was not referred to the union's members for approval because the APWU constitution did not provide for contract ratification by the membership.

At the 1972 APWU convention, however, the constitution was amended by the addition of article XIX, which established certain procedures to be followed in negotiating future contracts. Included in article XIX was a provision requiring "(a)pproval by a majority of the union members voting who are covered by the proposed agreement." Joint Appendix (J.A.) at 128.1 At that time, the APWU represented only employees governed by the national agreement.

Beginning in 1973, the APWU was selected as the bargaining representative for a number of small, non-mail processing units in the USPS, which are excluded from coverage under the national agreement. Bargaining for employees in those departments was conducted by a union official, with the assistance of a committee of employees from the unit. APWU presidents interpreted article XIX of the union constitution as applying only to national units, and collective bargaining agreements for non-mail processing units were not subject to ratification votes.2

Following a representation election, the APWU was certified in November, 1977, as the exclusive bargaining representative for employees in the Postal Service's Research and Development Department in Rockville, Maryland. APWU Local 6885, which represents those employees, and its members are the appellants in this case. Negotiations between the union and the USPS aimed at an initial bargaining agreement began on February 15, 1978. Because the parties were unable to reach a consensus, bargaining was suspended on May 15, 1978. Both sides then began preparing for factfinding, a procedure available under the PRA when ninety days of negotiation have failed to produce a contract and when the parties have been unable to agree on an alternative procedure for resolution of the conflict. See 39 U.S.C. § 1207(b), (d) (1976). Under this provision, a three-member factfinding panel conducts an investigation and submits a report on its findings, which may be accompanied by recommendations.3

Richard Wevodau, the APWU official assigned to represent Local 6885 at the bargaining table, was skeptical about the usefulness of factfinding and requested another bargaining session prior to factfinding. The USPS agreed, on the condition that only the chief negotiators meet. Those negotiations resulted in a tentative agreement on all issues one day prior to the first scheduled day of factfinding. The contract became effective on July 15, 1978.

Appellants allege that the bargaining procedure was defective in a number of respects. First, they maintain that the APWU4 breached its promises to the local, and violated article XIX of its constitution and section 101(a)(1) of the Labor-Management Reporting and Disclosure Act of 1959 (LMRDA), 29 U.S.C. § 411(a)(1) (1976), by failing to submit the proposed contract to Local 6885 members for ratification. The local also contends that appellees breached their statutory duty of fair representation, see NLRA § 9(a), 29 U.S.C. § 159(a) (1976), and fiduciary duty, see LMRDA § 501, 29 U.S.C. § 501 (1976), in several ways: by covertly resuming negotiations without consulting the local; by making concessions on union demands; by breaching promises to suspend bargaining during factfinding; by reneging on a pledge to permit the local's committee to attend bargaining sessions; by executing the contract without complying with appellants' request for a copy; and by failing to submit the proposed agreement to the membership for ratification. Intervenors, nonunion workers in the affected unit, contend further that the union deprived them of their statutory right to factfinding.5 The court below, by order dated November 26, 1979, dismissed each of these claims on appellees' motion for summary judgment. See J.A. at 109.

Alleging that the USPS defendants knew of, and assisted, the union's breach of its duty of fair representation, appellants' complaint also names as defendants the Postal Service and its chief negotiator, Edward Ward. The district court granted the motion to dismiss the claims against these appellees on February 14, 1979. See J.A. at 107. Appellants challenge both orders.

A. "Equal Rights" Under the APWU Constitution and Section 101(a)(1)

Appellants insist that, in failing to submit the proposed contract to Local 6885 members for approval, the union acted inconsistently with its constitution and with appellants' entitlement to "equal rights and privileges" under section 101(a)(1) of the LMRDA, 29 U.S.C. § 411(a)(1) (1976). With respect to the first argument, appellants maintain that article XIX of the union constitution, see note 1 supra, must be read to require ratification of any contract, not just of a national agreement. They draw support from a brochure distributed by the union, see J.A. at 154,6 and from representations allegedly made during the organizational campaign. Appellants also note that the union constitution was amended in 1978 to give non-mail processing units the right of ratification.7

Appellees have two responses. First, they argue that the federal courts have no jurisdiction to consider this contention. The relevant statutory provision is section 1208(b) of the PRA, which is similar to section 301(a) of the Labor Management Relations Act of 1947 (LMRA), 29 U.S.C. § 185(a) (1976), and gives federal courts jurisdiction over "(s)uits for violation of contracts between the Postal Service and a labor organization representing Postal Service employees, or between any such labor organizations." 39 U.S.C. § 1208(b) (1976).8 The union maintains that its constitution is not a contract under the terms of section 1208(b). The circuits have split on this issue, and this court has once declined to resolve the controversy. See 1199 DC, National Union of Hospital & Health Care Employees v. National Union of Hospital & Health Care Employees, 533 F.2d 1205, 1207-08 (D.C.Cir.1976).9

Second, appellees insist that refusing to allow Local 6885 members to ratify the contract was in accord with the union constitution. They dispute appellants' reading of article XIX and point to its plain language, in particular the many references to "national" committees, agreements, etc. Moreover, the APWU observes, that provision has been interpreted by union presidents as applying only to the national agreement. See J.A. at 184-86, 230-39.10 Such interpretations, if reasonable and in good faith, are not to be disturbed by the courts. See, e.g., Stelling v. International Bhd. of Electrical Workers Local 1547, 587 F.2d 1379, 1388-89 (9th Cir. 1978), cert. denied, 442 U.S. 944, 99 S.Ct. 2890, 61 L.Ed.2d 315 (1979); English v. Cunningham, 282 F.2d 848, 850 (D.C.Cir.1960); Gardner v. Woodcock, 384 F.Supp. 239, 247 (E.D.Mich.1974). Finally, appellees are critical of the local's reliance on the campaign brochure and representations: they maintain that the brochure is addressed only to APWU members covered by the national agreement and that the local was informed that it had no right to ratify.

We find no need to interpret article XIX of the APWU constitution or to rule on the reasonableness of appellees' construction. Even if appellants have no ratification right under the literal terms of the constitution, they do have such a right under section 101(a)(1) of the LMRDA, which provides in pertinent part:

Every member of a labor organization shall have equal rights and privileges within such organization ... to vote in elections or referendums of the labor organization, ... subject to reasonable rules and regulations in such organization's constitution and bylaws.

This provision itself accords no voting rights to a union membership, but it does mandate that rights given to some members be available to all. The Ninth Circuit has described section 101(a)(1) as protecting union members from "denial of a voting right given to any other member or class of members." Stelling, 587 F.2d at 1385. See also Calhoon v. Harvey, 379 U.S. 134, 139, 85 S.Ct. 292, 295, 13 L.Ed.2d 190 (1964); Alexander v. International Union of Operating Engineers, 624 F.2d 1235, 1240 (5th Cir. 1980); Lux v. Blackman, 546 F.2d 713, 716 (7th Cir. 1976); Fritsch v. District Council 9, Bhd. of Painters, 493 F.2d 1061, 1063 (2d Cir. 1974); Mori v. International Bhd. of Boilermakers Local 6, 482 F.Supp. 838, 843 (N.D.Cal.1979).

It is undeniable that appellants have alleged discrimination of precisely the type which section 101(a)(1) addresses.12 As this court observed in Bunz v. Moving Picture Machine Operators' Protective Union Local 224, 567 F.2d 1117, 1121 (D.C.Cir.1977), "(a) union's discrimination against its members is most obvious, of course, when it denies some of them the right to vote outright." The APWU has in effect created two classes of members, only one of which is entitled to ratify its collective bargaining agreements. Such classifications, unless within the scope of the statute's proviso regarding "reasonable rules and regulations," are impermissible under section 101(a)(1): "while a union may set up procedural and even substantive conditions or restrictions on the members' right to vote, it may not do so indefinitely or arbitrarily so as to establish a permanent special class of membership not entitled to an equal vote." Acevedo v. Bookbinders Local 25, 196 F.Supp. 308, 311 (S.D.N.Y.1961). See also Pignotti v. Local 3, Sheet Metal Workers International Ass'n, 343 F.Supp. 236, 243 (D.Neb.1972), aff'd, 477 F.2d 825 (8th Cir.), cert. denied, 414 U.S. 1067, 94 S.Ct. 576, 38 L.Ed.2d 472 (1973); O'Brien v. Paddock, 246 F.Supp. 809, 811-12 (S.D.N.Y.1965).13

B. "Reasonable Rules and Regulations"

The APWU's refusal to permit Local 6885 to approve its contract, while requiring ratification votes on the national agreement, is therefore contrary to section 101(a)(1) if it cannot be justified as a "reasonable" distinction. In ruling for appellees on this issue, the court below held:

Rather than discrimination, such a provision merely enables the unions to deal flexibly in their selection of bargaining methods.

J.A. at 110 (citing Byrom v. American Postal Workers Union, Civ. No. 78-4268, slip op. at 7 (S.D.N.Y. Oct. 2, 1979), reprinted in Brief for Appellees APWU, et al., app. at U-33, U-39).

This rationale was more fully explained in Byrom, in which the court noted that contract ratification is a method of collective bargaining. The other general method of negotiating contracts-giving the bargaining representative final authority to bind the membership-may be more or less advantageous relative to the ratification method, depending on the circumstances of the particular situation. The court in Byrom, followed by the court below, inferred that Congress did not intend by section 101(a)(1) to limit a union's flexibility in selecting bargaining methods.

We are not persuaded that this notion of flexibility rises to the level of a "reasonable" justification for discriminating against non-mail processing units in the exercise of ratification rights. No evidence in the record explains why ratification was inappropriate for the Local 6885 bargaining agreement, or even for nonnational contracts generally. No differences between such contracts and the ratified national agreements were articulated by appellees, by the court below, or by the court in Byrom. In fact, there is no indication that the desire to preserve flexibility even motivated the discrimination challenged by appellants. Moreover, accepting this broad, general concept of flexibility as sufficient explanation for the disparate treatment here gives unions carte blanche to discriminate among members and substantially vitiates the force of section 101(a)(1). Cf. Alvey v. General Electric Co., 622 F.2d 1279, 1286 (7th Cir. 1980) (similar reasoning re union's asserted rationale of "uniformity").14

What does emerge from the record is a mechanical adherence to prior practice with no rational policy justification. When the APWU constitution first provided for member ratification of collective bargaining agreements, the union represented only persons covered by the national contract. There was obviously no need for the framers of article XIX to consider whether a similar procedure should be followed in negotiating contracts for non-mail processing units, and article XIX referred exclusively to "national" agreements, negotiating teams, etc. As the union gradually undertook representation of nonnational units, this language was understandably interpreted to permit ratification only of national agreements. That construction was considered precedent and followed-with no apparent consideration of the reasonableness of the distinction. See J.A. at 244 (deposition of Emmet Andrews, APWU President). The traditional interpretation was then "corrected" in 1978 when the union constitution was amended to permit ratification by non-mail processing units. Id.

If our historical analysis is accurate, the union's discrimination against appellants and their kind is not justified by any reasonable distinction between them and those union members given a right of ratification, and article XIX may not be deemed one of the "reasonable rules and regulations" permitted by section 101(a)(1). We therefore find that the district court's order of summary judgment with respect to this issue was error.

Our conclusion is corroborated by interpretations of the statute's reference to "reasonable rules and regulations" appearing in the case law and the legislative history. These sources indicate that a union may limit voting to active members, or to those in good standing, and may exclude those who have not belonged to the union for the requisite period of time. See, e.g., Alvey, 622 F.2d at 1284 (members in good standing); Thomas v. United Mine Workers, 422 F.Supp. 1111, 1117 (D.D.C.1976) (dictum) (active members); Acevedo v. Bookbinders Local 25, 196 F.Supp. 308, 311 (S.D.N.Y.1961) (dictum) (six-months to one-year membership requirement). Cf. 105 Cong.Rec. 15,536 (1959) (remarks of Rep. Thompson) (in favor of permitting unions to exclude inactive and supervisory members from vote).15

In addition, section 101(a)(1) permits a union to limit participation in a specific vote to those whose interests are affected. See, e.g., Alvey, 622 F.2d at 1286-87; Fritsch v. District Council 9, Bhd. of Painters, 493 F.2d 1061, 1063 n.8 (2d Cir. 1974) (no right to vote for other locals' bargaining agents, who performed no duties for appellants); Williams v. International Typographical Union, 423 F.2d 1295, 1298 (10th Cir.), cert. denied, 400 U.S. 824, 91 S.Ct. 47, 27 L.Ed.2d 53 (1970); (those who only moonlight as printers have no "vital interest" in, and therefore no right to vote on, wage scales); Acevedo, 196 F.Supp. at 311 (separation of skilled and unskilled workers for purposes of bargaining and representation).16

The courts have, however, expressed disapproval of other classifications drawn by a union that operate to deny the right to vote to some members. In Alvey, for example, the union constitution permitted only members in good standing-those who had paid dues-to participate in union affairs. Laid-off members of the union were not permitted to pay dues and were therefore excluded from a vote to ratify revised seniority rules. The Seventh Circuit found this distinction unreasonable and noted that "discrimination is most invidious where, as here, it is applied to prevent a group of members from voting or even speaking on matters that vitally affect them." 622 F.2d at 1287. See Trail v. International Bhd. of Teamsters, 542 F.2d 961, 966 (6th Cir. 1976) (affirming refusal to dismiss section 101(a)(1) claim based on union's affording appellants ratification right only on national and central states agreements and denying vote on Michigan Rider, which also affected them); Vestal v. International Bhd. of Teamsters, 245 F.Supp. 623, 628 (M.D.Tenn.1965) (forbidding union from permitting only the freighters in a local to vote whether to issue separate charter to freighters); Acevedo, 196 F.Supp. at 312 ("manifestly unreasonable" to deprive unskilled members of right to elect certain union officers, a matter "vitally affect(ing) their material and economic interests").17

Prior interpretations of the "reasonable rules and regulations" exception to section 101(a)(1)'s equal rights mandate do not support the distinction the APWU has drawn here. Postal Service employees in Local 6885 and other non-mail processing units are as much active union members in good standing as are those persons affected by the national agreement. And the article XIX classification does not serve merely to limit voting on a particular question to those with an interest in the outcome. Appellants do not claim a right to participate in ratification votes on the national agreement; they have a very substantial interest, however, in the bargaining agreement governing their own employment. Once the union acted to permit some of its members to approve or reject their contracts, section 101(a)(1) directed that similar rights be given appellants-in the absence of a reasonable rationale for discriminating. Neither the vague, broad notion of flexibility nor the formalistic adherence to outmoded interpretations of article XIX's language provides sufficient justification for denying appellants an opportunity to ratify their contract. The court below therefore erred in granting summary judgment on this question.18 We remand for fuller consideration of the local's allegations and the union's defenses.19

Local 6885 next contends that appellees violated their statutory duty of fair representation and fiduciary duty in resuming negotiations with the USPS and agreeing to a contract. Appellants raise a number of specific objections to the union's bargaining conduct, which we address below.

Initially, we note generally that a union must be given a wide range of discretion in representing its members, particularly in the give-and-take process of negotiation. Individual dissatisfaction with the outcome of bargaining is to some extent unavoidable and does not necessarily indicate any breach of duty by the union. As the Supreme Court recognized in Ford Motor Co. v. Huffman, 345 U.S. 330, 338, 73 S.Ct. 681, 686, 97 L.Ed. 1048 (1953):

Inevitably differences arise in the manner and degree to which the terms of any negotiated agreement affect individual employees and classes of employees. The mere existence of such differences does not make them invalid. The complete satisfaction of all who are represented is hardly to be expected. A wide range of reasonableness must be allowed a statutory bargaining representative in serving the unit it represents, subject always to complete good faith and honesty of purpose in the exercise of its discretion.

The Court then explained in Vaca v. Sipes, 386 U.S. 171, 177, 190, 87 S.Ct. 903, 909-916, 17 L.Ed.2d 842 (1967), that the duty of fair representation, which is implicit in a union's authority to serve as the exclusive representative of a unit, see NLRA § 9(a), 29 U.S.C. § 159(a) (1976), is violated only when the union's conduct toward one of its members is arbitrary, discriminatory, or in bad faith.20

Appellants' primary fair representation complaint is that the union had promised to consult with the local and failed to do so prior to resuming bargaining and altering its negotiating position. It is true that courts have found violations of the duty of fair representation when a union has not adequately informed its members of matters on which they must act. See Warehouse Union Local 860 v. NLRB, 652 F.2d 1022 at 1025-26 (D.C.Cir.1981) (duty to inform clerical unit employees that seventy percent wage increase, which they had demanded and which was included in contract on which they were to vote, would result in employer's eliminating the entire unit); Robesky v. Qantas Empire Airways Ltd., 573 F.2d 1082, 1091 (9th Cir. 1978) (obligation to give appellant information that was "important if not critical" to her decision whether to accept employer's offer to settle grievance); International Union of Electrical, Radio & Machine Workers, Frigidaire Local 801 v. NLRB, 307 F.2d 679, 683 (D.C.Cir.), cert. denied, 371 U.S. 936, 83 S.Ct. 307, 9 L.Ed.2d 270 (1962) (duty to "inform the employee of his rights and obligations so that the employee may take all necessary steps to protect his job"; there, obligation to tell employee that failure to join union and pay dues would result in discharge). The union's duty might also be violated if it made no effort to communicate with those affected by its conduct and acted with no input from them. See NLRB v. American Postal Workers Union, St. Louis Local, 618 F.2d 1249, 1255 (8th Cir. 1980).

Here, appellants do not deny that the union had consulted with them and knew their position on the issues in dispute; the record contains no suggestion or evidence that further contact between the local and its bargaining representative was necessary prior to the final negotiating session. And this is not a case in which appellants were not given information important to a choice they were to make-the local had no decision to make at that stage of the bargaining.

Moreover, there is no indication in the record that the union's action in reopening negotiations without informing or consulting the local was hostile or in bad faith. Although it may have been preferable for the union to have communicated the change of plans to appellants, we cannot say that, in the rush to reach agreement prior to the beginning of factfinding, this omission was "so egregious, so far short of minimum standards of fairness to the employee and so unrelated to legitimate union interests as to be arbitrary." Robesky, 573 F.2d at 1090.

Closely related to the consultation issue is appellants' allegation that the APWU breached its duty of fair representation by conceding previously held union demands during the final round of negotiations. Compromise is what bargaining is all about, and a union does not act improperly in reversing a bargaining position. See Waiters Union, Local 781 v. Hotel Ass'n, 498 F.2d 998, 1000 (D.C.Cir.1974). In fact, decisions regarding bargaining strategy and the relative merits of different bargaining postures are precisely the type of judgments left to the discretion of the negotiator. See Ford Motor Co., 345 U.S. at 337-38, 73 S.Ct. at 685-86. Although the duty of fair representation may require some meaningful consideration of the members' viewpoint, see Waiters Union Local 781, 498 F.2d at 1000, the evidence is undisputed that the bargaining representative did solicit the local's opinion here. And, as in Waiters Union Local 781, appellants do not suggest, and we have no reason to suspect, that the attention given appellants' demands was only perfunctory. Indeed, it appears that both parties made concessions during the final negotiations, see Brief for Appellees APWU, et al., at 14-15, and appellants point out no respect in which those made by the APWU were either hostile to appellants or arbitrary.

Finally, the local insists that the duty of fair representation was violated when the APWU breached its promise to suspend negotiations during the factfinding procedure, thereby depriving appellants of their statutory right to factfinding. Appellants maintain that, once ninety days of bargaining have expired without agreement and the factfinding procedures set out in PRA § 1207(b), 39 U.S.C. § 1207(b) (1976), have begun, that process may not be interrupted by the reopening of negotiations.

The legislative history demonstrates, however, that Congress intended to defer at all times to agreements between labor and management. Because postal employees are not permitted to strike, Congress provided for binding arbitration in the face of impasse at the bargaining table. See H.R.Rep.No.1104, 91st Cong., 2d Sess. 14, reprinted in (1970) U.S.Code Cong. & Ad.News 3649, 3662; see also PRA § 1207(d), (c), 39 U.S.C. § 1207(d), (c) (1976). But Congress felt that "the essence of successful collective bargaining" was effort by the parties to reach agreement and not a resolution imposed by an outside arbitrator. Id., (1970) U.S.Code Cong. & Ad.News at 3662. Arbitration was therefore to be resorted to only after "every reasonable possibility of reaching bilateral agreement (had) been exhausted." Id., (1970) U.S.Code Cong. & Ad.News at 3663. Similarly, Congress preferred that labor and management agree to procedures for dealing with unresolved issues. The House report thus noted:

(I)t is the intent of the Congress that the parties by agreement adopt any mutually desired procedures for the resolution of disputes or impasses arising in the negotiation of a collective bargaining agreement and not rely on the statutory procedure for resolving disputes that is prescribed in the bill.

Id., (1970) U.S.Code Cong. & Ad.News at 3663. While urging the parties to develop their own means for breaking deadlocks, Congress recognized that some such procedure must be established for those cases in which the parties were unable to agree. Factfinding was designed to serve that function.

The legislative history thus clearly indicates that Congress preferred agreement by the parties to reliance on the statutory procedures. If agreement is reached after the factfinding procedures have been initiated, nothing in section 1207 suggests that the parties are required to go through a meaningless exercise and complete factfinding. In fact, it would appear more consistent with congressional intent to disband the factfinding panel and implement the agreement.

Moreover, the union's avoidance of factfinding here may not be classified as arbitrary or in bad faith and therefore inconsistent with the duty of fair representation. Both parties agree that the union was motivated by an uneasiness about factfinding, and not by personal animosity towards appellants. The APWU's chief negotiator felt that factfinding was not in the best interests of the local because it was expensive, dilatory, and often useless. We do not consider this apprehension arbitrary.

In sum, we find the union's conduct during bargaining consistent with its duty of fair representation. Appellants' dissatisfaction with the outcome, though unfortunate, does not by itself suggest inadequacy in the union's performance. And appellants have not exhibited an ability to offer evidence of bad faith or arbitrariness-the proof necessary to demonstrate a violation of the duty of fair representation-with respect to the failure to inform and consult the local before resuming negotiations, the concessions made at the final bargaining session, or the interruption of factfinding.21 We therefore affirm the district court's dismissal of these duty of fair representation claims.

Relying on the same factual allegations made with respect to the duty of fair representation issue, appellants argue that the union official's conduct during the bargaining process violated their fiduciary duty under LMRDA § 501, 29 U.S.C. § 501 (1976).22 The circuits have disagreed whether section 501 suits are available only to redress fiduciary violations concerning misuse of union funds or property. Most courts have read section 501 broadly and have interpreted it as establishing the fiduciary obligations of union officials in all their functions. See, e.g., Stelling v. International Bhd. of Electrical Workers Local 1547, 587 F.2d 1379, 1385-87 (9th Cir. 1978), cert. denied, 442 U.S. 944, 99 S.Ct. 2890, 61 L.Ed.2d 315 (1979); Johnson v. Nelson, 325 F.2d 646, 649-51 (8th Cir. 1963); Pignotti v. Local 3, Sheet Metal Workers International Ass'n, 343 F.Supp. 236, 243 (D