Acosta v. Local Union 26, Unite Here

Filing

OPINION issued by Rogeriee Thompson, Appellate Judge; David H. Souter, Associate Supreme Court Justice and Bruce M. Selya, Appellate Judge. Published. [17-1666]

Case: 17-1666

Document: 00117312687

Page: 1

Date Filed: 07/11/2018

Entry ID: 6183059

United States Court of Appeals
For the First Circuit
No. 17-1666
R. ALEXANDER ACOSTA, Secretary of Labor,
United States Department of Labor,
Plaintiff, Appellant,
v.
LOCAL UNION 26, UNITE HERE,
Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. George A. O’Toole, Jr., U.S. District Judge]

Before
Thompson, Circuit Judge,
Souter, Associate Justice,
and Selya, Circuit Judge.

Casen B. Ross, Attorney, Appellate Staff, Civil Division,
with whom Chad A. Readler, Acting Assistant Attorney General,
Andrew E. Lelling, United States Attorney, William D. Weinreb,
Acting United States Attorney, Mark B. Stern, Attorney,
Appellate Staff, Civil Division, Nicholas C. Geale, Acting
Solicitor of Labor, Beverly Dankowitz, Associate Solicitor,
Civil Rights and Labor-Management Division, Clinton Wolcott,
Counsel for Labor-Management Programs, and Anna Laura Bennett,
Attorney, Department of Labor, were on brief, for appellant.


Hon. David H. Souter, Associate Justice (Ret.) of the
Supreme Court of the United States, sitting by designation.

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Richard G. McCracken, with whom Paul L. More and McCracken,
Stemerman & Holsberry LLP, were on brief, for appellee.

July 11, 2018

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SOUTER,

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Associate

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Justice.

In

this

Entry ID: 6183059

suit

brought

against defendant Local Union 26, UNITE HERE, the Secretary of
Labor

claims

that

the

union

violated

§

104

of

the

Labor-

Management Reporting and Disclosure Act of 1959 (the "LMRDA")
when it refused to allow one of its members to take notes while
inspecting its collective bargaining agreements ("CBAs") with
other employers.

The district court held that the member's

statutory right to "inspect" the agreements did not encompass a
right to take notes while doing so.
The

material

facts

We affirm.

may

be

Poweigha is a member of Local 26.

stated

briefly.

Dimie

The union has negotiated more

than 40 CBAs, including one with Poweigha's employer.

Poweigha

was dissatisfied with the administration of Local 26, and asked
the

union

to

permit

her

to

review

37

CBAs

negotiated with employers other than her own.

Local

26

had

Eventually, once

the Secretary of Labor got involved, the union offered Poweigha
opportunities for this purpose, but said that it would not allow
her to take notes on the CBAs during her inspections.

When the

Secretary learned of the union's position, he filed this suit,
contending that the limitation on note-taking violated § 104 of
the

LMRDA,

obligation

29
under

U.S.C.
§

104

§

414,
to

in

make

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particular,
such

CBAs

the

union’s

"available

for

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inspection by any member or by any employee whose rights are
affected by such agreement[s]."1
The parties filed dueling motions for judgment on the
pleadings, and the district court granted judgment for Local 26
on the issue before us.
on the pleadings de novo.

We review a district court's judgment
See Rezende v. Ocwen Loan Servicing,

LLC, 869 F.3d 40, 42 (1st. Cir. 2017).
Section 104 reads, in relevant part, as follows:
It shall be the duty of the secretary or corresponding
principal officer of each labor organization, in the case
of a local labor organization, to forward a copy of each
collective
bargaining
agreement
made
by
such
labor
organization with any employer to any employee who requests
such a copy and whose rights as such employee are directly
affected by such agreement, and in the case of a labor
organization other than a local labor organization, to
forward a copy of any such agreement to each constituent
unit which has members directly affected by such agreement;
and such officer shall maintain at the principal office of
the labor organization of which he is an officer copies of
any such agreement made or received by such labor
organization,
which
copies
shall
be
available
for
inspection by any member or by any employee whose rights
are affected by such agreement.
29 U.S.C. § 414 (emphasis added).2
1

Though the Secretary has previously taken this position in
litigation,
the
Labor
Department
has
not
promulgated
a
regulation addressing the scope of § 104’s inspection right.
2

Before the district court, Local 26 contended that a union
member possesses no right even to inspect a CBA under § 104
unless that member's rights are "affected by such agreement."
29 U.S.C. § 414.
The district court rejected that argument,
holding that the statutory phrase "whose rights are affected by
such agreement" modifies "any employee," not "any member." The
rule of the last antecedent, "according to which a limiting
clause or phrase . . . should ordinarily be read as modifying
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In

accord

understanding,

an

with

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Date Filed: 07/11/2018

standard

"inspection"

is

definition

the

"[a]ct

Entry ID: 6183059

and

or

common

process

of

inspecting," Webster's New International Dictionary 1286 (2d ed.
1957), and to "inspect" does not mean to take notes, but rather
"[t]o look upon; to view closely and critically, esp. so as to
ascertain

quality

scrutinize," id.

or

state,

to

detect

errors,

etc.;

to

Taking the plain meaning of the word as its

statutory meaning is buttressed by two features of the LMRDA
that

convince

clause

to

us

give

that
union

Congress
members

did
a

not

right

intend
to

take

the

relevant

notes

while

inspecting other employers' CBAs.3
First, the LMRDA uses the term "inspect" elsewhere,
and the drafting and legislative history of that neighboring
provision makes clear that Congress did not intend the term to
include a right to take notes.

Section 401(c) of the LMRDA,

enacted at the same time as § 104, provides that:
Every bona fide candidate shall have the right, once within
30 days prior to an election of a labor organization in

only the noun or phrase that it immediately follows," supports
the district court's construction. Barnhart v. Thomas, 540 U.S.
20, 26 (2003).
But because the union does not reprise this
particular argument on appeal, we need not resolve the issue
conclusively. Instead, we may assume that Poweigha had a right
to inspect the CBAs in issue.
3

The Secretary requests "some measure of deference" if we
find the scope of the inspection right to be unclear.
Because
we do not, we have no occasion to grant him any.
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which he is a candidate, to inspect a list containing the
names and last known addresses of all members of the labor
organization who are subject to a collective bargaining
agreement requiring membership therein as a condition of
employment, which list shall be maintained and kept at the
principal office of such labor organization by a designated
official thereof.
29 U.S.C. § 481(c) (emphasis added).
Critically, earlier drafts of this provision provided
candidates

not

merely

with

a

right

to

"inspect"

membership

lists, but with a right to "inspect and copy" such lists.
H.R. 8400, 86th Cong. § 401(b) (1959).

See

But Congress dropped the

words "and copy" from the final version of the LMRDA.
"Few
compelling

principles

than

the

of

statutory

proposition

that

intend sub silentio to

enact

statutory

earlier

favor

of

discarded

in

construction

other

Congress

language

are

more

does

not

that

language."

it

I.N.S.

has
v.

Cardoza-Fonseca, 480 U.S. 421, 442–43 (1987) (internal quotation
marks

omitted).

And

the

legislative

history

application of this common-sense principle here.

confirms

the

See H.R. Rep.

No. 86-1147, at 34 (1959) (stating that the words "and copy"
were eliminated to "deny candidates the right to copy membership
lists");
(1984)
stated

see

("In
that

also

Garcia

surveying
the

v.

United

legislative

authoritative

States,

history
source

469

we

U.S.

have

for

70,

76

repeatedly

finding

the

Legislature's intent lies in the Committee Reports on the bill,
which represent the considered and collective understanding of
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those

Document: 00117312687

Congressmen

legislation."
omitted)).4
Congress

Page: 7

involved

in

(internal
In

plainly

other
did

a

regulation

drafting

quotation
words,

not

and

the

Entry ID: 6183059

studying

marks

under

intend

include the right to copy.
issued

Date Filed: 07/11/2018

§ 401(c)
right

and

alteration

of
to

proposed

the

LMRDA,

"inspect"

to

Not surprisingly, the Secretary has

reaching

this

same

conclusion.

See

29

C.F.R. § 452.71 (the right to inspect a membership list under
§ 401(c) "does not include the right to copy the [membership]
list").

And no distinction can be drawn from the difference

between "copying" then and "note-taking" now, because in 1959,
the year of enactment, a right to "copy" would, as a practical
matter, have been exercised by handwritten note-taking.
copying as we know it didn’t arrive until 1960."

"Office

David Owen,

Copies in Seconds 10 (2004).
If the right to "inspect" in § 401(c) of the LMRDA
does not provide a right to take notes, it would be at odds with
another well-established canon of statutory interpretation to
read "inspect" in § 104 of the same Act to confer that same
right.
within

That canon teaches that "identical words and phrases
the

meaning."

same

statute

should

normally

be

given

the

same

Powerex Corp. v. Reliant Energy Servs., Inc., 551

4

The Secretary concedes the point.
See Reply Brief for
Appellant 2 ("The legislative history of section 401(c)
indicates that it does not include a right to copy membership
lists . . . .").
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U.S. 224, 232 (2007).

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After all, it would assume a certain

whimsy on the part of Congress to conclude that it used the term
"inspect"

in

two

different

senses

within

the

same

statute.5

Though the rule, like most, admits of exceptions, there is no
apparent reason to question its applicability here.6
The second feature of the statute that persuades us of
our reading is that when Congress wished to provide individuals
with a right to a "copy" of a CBA, it said so expressly.

In

particular, § 104 entitles "any employee . . . whose rights as
such employee are directly affected by [a CBA]" to a copy of
that CBA.

29 U.S.C. § 414.

If Congress had intended to entitle

union members to copies of every CBA a union negotiates, it
needed only to say so.

Cf. Knight v. C.I.R., 552 U.S. 181, 188

(2008) ("If Congress had intended the Court of Appeals' reading,
it

easily

could

have

replaced

'would'

'could,' and presumably would have.

in

the

statute

with

The fact that it did not

adopt this readily available and apparent alternative strongly
5

The Secretary observes that §§ 104 and 401(c) were enacted
in separate Titles of the LMRDA. But the canon is not limited
to terms enacted in the same statutory title.
See Antonin
Scalia & Bryan A. Garner, Reading Law 172 ("The presumption of
consistent usage applies also when different sections of an act
or code are at issue.").
The Secretary cites no authority to
the contrary.
6

The Secretary tries to avoid application of this canon by
suggesting that membership lists are more sensitive than CBAs
and therefore entitled to greater protection.
But these
concerns are not apparent on the face of the statute, and the
Secretary cites no legislative history in support of the point.
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supports

rejecting

the

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Court

Congress did not say so.

Date Filed: 07/11/2018

of

Appeals'

Entry ID: 6183059

reading.").

But

To be sure, what Poweigha claims is

not a right to obtain a copy but, in effect, a right to make one
herself.

We doubt, however, that the distinction matters.

It

would be passing strange, if not downright mean, for Congress to
have

intended

to

simultaneously

withhold

a

conferring

right

a

right

to

receive
on

a

copy,

while

to

create

members

handwritten copies themselves.
The
detain

us

Secretary's

long.

remaining

First,

the

counterarguments

Secretary

asserts

need

not

that

the

inspection right would "be nullified without the ability to take
notes."

See Reply Brief for Appellant 5.

But as the Secretary

himself acknowledges, "the purpose behind section 104" is to
"give[] union members . . . 'ideas'" that they may "put forward
to

the

union’s

negotiators."

Id.

at

6.

One

need

not

be

permitted to take notes in real time to come away with ideas
from the review of a CBA; a working memory will do.

Second, the

Secretary suggests that his interpretation is the better one
because

it

is

more

protecting

union

government

within

supportive

members
unions.

of

and

the

LMRDA’s

promoting

But

purposes

democratic

Congress

was

of

self-

undoubtedly

balancing competing interests in enacting the LMRDA, and, in any
case,

"no

legislation

pursues its

costs."

Rodriguez v. United States, 480 U.S. 522, 525–26 (1987)
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purposes

at

all

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(per curiam); cf. Calhoon v. Harvey, 379 U.S. 134, 140 (1964)
(noting,

in

construing

the

LMRDA,

"the

general

congressional

policy to allow unions great latitude in resolving their own
internal

controversies").

Third,

the

Secretary

points

to

another provision of the LMRDA, permitting members "for just
cause to examine any books, records, and accounts necessary to
verify"

the

union's

annual

financial

reports,

29

U.S.C.

§ 431(c), which some courts have interpreted to permit notetaking, see, e.g., Conley v. United Steelworkers of Am., Local
Union No. 1014, 549 F.2d 1122, 1123-24 (7th Cir. 1977).

Whether

that interpretation is correct or not, the meaning of the word
"examine" in a separate provision of the LMRDA has little, if
any, bearing on the meaning of the word "inspection" in § 104 of
the Act.
cause"

That is particularly apparent in light of the "just
requirement

that

"protect[s]

.

.

.

unions

from

harassment" when it comes to the exercise of the examination
right,

a

protection

that

unions

do

not

enjoy

when

wishes to inspect a union's CBAs with other employers.

a

member
Conley,

549 F.2d at 1124.
For these reasons, we hold that, in conferring a right
on union members to "inspect[]" CBAs under § 104 of the LMRDA,
Congress did not also invest the members with a right to take
notes.

Unions are free to permit note-taking, of course, or to

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provide copies of such CBAs.

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But Congress has not commanded

them to do so.

Affirmed.

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