Perez v. Local Union 26, Unite Here

Filing 28

Judge George A. O'Toole, Jr: OPINION AND ORDER entered denying 13 Motion for Judgment on the Pleadings; granting 16 Motion for Judgment on the Pleadings (Halley, Taylor)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
CIVIL ACTION NO. 16-10396-GAO
ALEXANDER ACOSTA, Secretary of Labor, United States Department of Labor,1
Plaintiff,
v.
LOCAL UNION 26, UNITE HERE,
Defendant.
OPINION AND ORDER
May 3, 2017
O’TOOLE, D.J.
The Secretary of the United States Department of Labor (the “Department”) brought suit
against Unite Here Local 26, alleging that the union violated § 104 of the Labor-Management
Reporting and Disclosure Act (“LMRDA”), 29 U.S.C. § 414, when it permitted a member of Local
26 to inspect the union’s collective bargaining agreements (“agreements” or “CBAs”) with
employers other than the complainant’s employer but refused to permit her to take notes while
reviewing those agreements. The union disagrees with the Secretary’s interpretation of the statute,
contending that § 104 does not require a local union to allow a member or employee to inspect
CBAs other than one that affects her own rights and, to the extent that the union does permit such
inspection, the statute does not give a member the right to take unlimited notes on the contents of
those CBAs. The parties have cross-moved for judgment on the pleadings regarding the proper
statutory interpretation of § 104.

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Alexander Acosta has been appointed the Secretary of Labor for the United States Department
of Labor. Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Acosta is automatically
substituted as the plaintiff.

I.

The Controversy
The complaining member, Dimie Poweigha, is employed as a server by Levy Restaurants.

Local 26 has negotiated CBAs with more than forty employers, including Levy Restaurants. In
2014, Poweigha requested an opportunity to review thirty-seven CBAs negotiated by the union
with employers other than her own. Although the union maintained that it was not required to
allow her to inspect agreements other than her own, the union eventually agreed to permit
inspection. However, the union refused to permit Poweigha to take notes during the inspection.
II.

Discussion
Approximately twenty years after the National Labor Relations Act was passed, “Congress

realized that vital non-economic interests of employees were not being adequately protected under
existing legislation. The LMRDA was therefore enacted to regulate the internal affairs of labor
unions and protect union members from autocratic abuses by union officials.” Doty v. Sewall, 784
F.2d 1, 4 (1st Cir. 1986) (citations omitted). “In enacting the LMRDA, Congress found that ‘it is
essential that labor organizations . . . and their officials adhere to the highest standards of
responsibility and ethical conduct in administering the affairs of their organizations,’ and declared
that the LMRDA was designed ‘to eliminate or prevent improper practices on the part of labor
organizations.’” McCafferty v. Local 254, Serv. Emps. Int’l Union, 186 F.3d 52, 57 (1st Cir. 1999)
(quoting 29 U.S.C. §§ 401(a), (c)).
Title I of the LMRDA, 29 U.S.C. §§ 411–415, provides a “Bill of Rights” for union
members. Id. (quoting Molina v. Union de Trabajadores de Muelles, 762 F.2d 166, 167 (1st Cir.
1985)). It was “specifically designed to promote the ‘full and active participation by the rank and
file in the affairs of the union.’” Hall v. Cole, 412 U.S. 1, 7–8 (1973) (quoting Am. Fed. of
Musicians v. Wittstein, 379 U.S. 171, 182–83 (1964)). The “rights enumerated in Title I were

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deemed ‘vital to the independence of the membership and the effective and fair operation of the
union as the representative of its membership.’” Id. at 8 (footnote omitted) (quoting Cole v. Hall,
462 F.2d 777, 780 (2d Cir. 1972)); see also Wirtz v. Hotel, Motel & Club Emps. Union, Local 6,
391 U.S. 492, 497 (1968) (describing that purpose of LMRDA was “to protect the rights of rankand-file members to participate fully in the operation of their union through processes of
democratic self-government, and, through the election process, to keep the union leadership
responsive to the membership”).
The present controversy arises from a provision of the so-called “Bill of Rights” concerning
the right of workers under defined circumstances to be able to review CBAs entered into by a labor
organization, including local unions. Section 104, entitled “Right to copies of collective bargaining
agreements,” provides:
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.
The provisions of section 440 of this title shall be applicable in the enforcement of
this section.
29 U.S.C. § 414 (emphasis added).
At particular issue is the proper construction to be given the italicized clause. The parties
dispute whether the italicized clause requires a copy of any CBA the union is required to maintain
for inspection at its principal office be made available to any member of the union on request,
regardless of whether the requester’s rights are affected by that CBA. They also dispute whether,

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to the extent inspection is permitted, the “member” or “employee” may take notes during that
inspection.
When tasked with interpreting a statute,
we begin our analysis with the statutory text and determine whether the same is
plain and unambiguous. In so doing, we accord the statutory text “its ordinary
meaning by reference to the ‘specific context in which that language is used, and
the broader context of the statute as a whole.’” If the statutory language is plain and
unambiguous, we “must apply the statute according to its terms,” except in unusual
cases where, for example, doing so would bring about absurd results. “If the statute
is ambiguous, we look beyond the text to the legislative history in order to
determine congressional intent.” “A statute is ambiguous only if it admits of more
than one reasonable interpretation.”
Recovery Grp., Inc. v. Comm’r, 652 F.3d 122, 125 (1st Cir. 2011) (citations omitted).
The statute involved here may be divided into four subparts:
[1] It shall be the duty of the secretary or corresponding principal officer of each
labor organization, [2] 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, [3] 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; [4] 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 (numerals added).
The statute is dense, but it is not ambiguous. A careful reading discloses its scope and
commands.
The use of a semicolon between the third clause and the fourth clause is a guide to
understanding the provision. It suggests that Congress intended the first three clauses to be read
together, and the fourth clause to be read in light of the derived understanding of the first three.
The first clause simply assigns responsibility for compliance with the statute to a particular union
officer. The second clause describes the duty imposed on such officer “in the case of a local labor
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organization,” and the third clause describes the duty imposed on such officer “in the case of a
labor organization other than a local labor organization.” The statute thus distinguishes between
local unions and umbrella organizations such as area-wide, national, or international unions, and
the duties imposed are different.
As provided in the second clause, a local union must, on request, forward a copy of any
CBA (“such agreement”) it has made with an employer to any employee whose rights are directly
affected by that CBA, regardless of whether the requesting employee is a union member. As
provided in the third clause, any labor organization that is not a local union, such as a national or
international union, must send a copy of any CBA (“such agreement”) to any “constituent unit,”
such as a local union, having members who are directly affected by it.
The second part of the statute, comprised of the fourth clause, requires “such officer” to
maintain a copy of any agreement to which either the second or third clause applies and to make
the copy “available for inspection by any member or by any employee whose rights are affected
by such agreement.” This case raises a question of how to understand the duties imposed on a local
union, such as the defendant here. A local union must maintain and make available for inspection
both (a) agreements it has made with employers (second clause) and (b) agreements an umbrella
union has made that the local union has received from the umbrella union (third clause).
The local union, through the designated officer, is required to provide a copy of any
agreement falling within category (a) “to any employee who requests such a copy and whose rights
as such employee are directly affected by such agreement” pursuant to the second clause. The
statute plainly distinguishes between “members” and “employees.” The obligation to provide a
copy of agreements within category (a) is owed to employees whose rights are directly affected by
the relevant agreement. By logical extension it is not owed to a union member whose rights as an

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employee are not directly affected by the agreement, such as a member who works for a different
employer. In other words, a member whose rights are not directly affected by an agreement is not
entitled to a copy of that agreement.
The scope of the inspection right mandated by the fourth clause of the statute is different.
First, it should be understood that the term “such officer” at the beginning of the clause may refer
either to an officer of a local union (second clause) or an officer of a labor organization that is not
a local union (third clause). This is apparent because different obligations are imposed on “such
officer” depending on whether he is an officer of a local union or not, and the fourth clause plainly
means to extend the obligation to maintain for inspection to both local and non-local levels.
The obligation is to permit inspection “by any member or by any employee whose rights
are affected by such agreement.” The parties dispute whether the clause “whose rights are affected
by such agreement” modifies the words “any member [and] . . . any employee” read together as
one phrase, or whether the clause modifies only “any employee.” The Secretary takes the latter
position: the right to inspect agreements maintained by a labor organization is extended both to
“any member” of the union and to “any employee whose rights are affected by it” (i.e., a nonmember employee of the relevant contracting employer). In other words, the Secretary asserts that
a labor organization—a designation that applies both to local unions and to intermediate or
international unions—must permit its members to inspect all the CBAs it has made or maintains,
regardless of whether a requesting member’s rights are affected any such agreement. Local 26, on
the other hand urges that the qualification “whose rights are affected” applies to members as well
as employees of the relevant contracting employer.
The Secretary relies in large part on two district court cases, Colpo v. General Teamsters
Local Union 326, 512 F. Supp. 1093 (D. Del. 1981), and Dole v. Local 427, International Union

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of Electrical, Radio, and Machine Workers, 760 F. Supp. 423 (D.N.J. 1990). In both cases, the
courts concluded that the local union is required to allow inspection of the union’s CBAs with all
employers, not just those contracted with the requesting member’s employer. The courts found
persuasive § 104’s repetition of the phrase “by any” before both “member” and “employee.” They
reasoned that the restrictive clause “whose rights are affected by such agreement” is best read to
modify only “employee” (which it immediately follows) and not “member,” because the
alternative interpretation would render the repetition of “by any” meaningless. Local 427, 760 F.
Supp. at 425–26; Colpo, 512 F. Supp. at 1095.
I agree with those courts that the use of the words “by any” before both “member” and
“employee” “strongly suggests that the draftsman intended to conclude the sentence with two
independent clauses.” Colpo, 512 F. Supp. at 1095. Otherwise, the language could have more
economically been drafted as “by any member or employee whose rights are affected by the
agreement.” Local 427, 760 F. Supp. at 425–26. The repetition of “by any” before “employee”
effectively separates “employee” from “member” and attaches it—and it alone—to the following
condition (“whose rights are affected by it”).
Applying these principles to the present case, under the second clause of § 104, Poweigha
is entitled to a copy of any CBA entered into by Local 26 which directly affects her rights as an
employee. As a member of Local 26, she is further entitled to inspect any CBA made by Local 26
or received by it from a non-local labor organization of which it is a constituent.
Now to the practical nub of the present dispute. Does Poweigha’s right to inspect CBAs
under the fourth clause of § 104 include the right to take notes? The statute does not address the
question.

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The Secretary argues, consistent with what he says has been the Department’s longstanding interpretation of the statute, that a right to take notes is necessarily implied, because the
right to inspect is not effective without the ability to take notes. He points to a provision in another
part of the LMRDA, which requires unions to permit members “for just cause to examine any
books, records, and accounts necessary to verify” the union’s annual financial statements
submitted to the Department. 29 U.S.C. § 431(c). The Secretary cites a Seventh Circuit case which
has interpreted the term “examine” in that section to include a right to copy:
Verification of these reports requires a detailed painstaking analysis which due to
space and time constrictions can only be partially completed on the premises of the
union. Without the right to copy, the members would necessarily be unable to
adequately complete their analysis away from the union’s premises and their right
to examine the records in order to verify the [financial] reports would be nullified.
Conley v. United Steelworkers, Local Union No. 1014, 549 F.2d 1122, 1124–25 (7th Cir. 1977).
The Secretary further cites Colpo, which appears to have permitted the member in that case to take
notes during his inspection of CBAs. See 512 F. Supp. at 1096.
Local 26, on the other hand, argues that the right of inspection under § 104 does not include
an implicit right to take notes. It suggests its own statutory analogy by pointing to § 401(c) of the
LMRDA, 29 U.S.C. § 481(c), which also describes a right to “inspect.” Under that section of the
LMRDA, a candidate for union office is entitled “once within 30 days prior to an election . . . , to
inspect a list containing the names and last known addresses of all members of the labor
organization.” The Secretary has interpreted the provision to mean that a candidate may look at
the list, but not copy it. 29 C.F.R. § 452.71(a) (“The right of inspection does not include the right
to copy the list but does include the right to compare it with a personal list of members.”).
The Secretary contends that the Department’s interpretation of the term “inspect” is entitled
to some deference, citing United States v. Mead Corp., 533 U.S. 218, 234 (2001), and Skidmore

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v. Swift & Co., 323 U.S. 134, 140 (1944). But even if its litigation position were entitled to some
measure of deference or respect, the Secretary’s argument in the present context is not persuasive.
First, the Seventh Circuit case, Conley, is weak support. At a first level, the statute at issue
in Conley entails a right to “examine,” not “inspect,” 29 U.S.C. § 431(c), so the force of the analogy
would depend in some degree on an answer to the lexicographical question whether, as used by
Congress in different parts of the same statute, those terms are to be given the same or different
meanings, and if the latter, what those meanings might be. There is no need to stare at the head of
that pin. More importantly, the court in Conley was persuaded (1) by the statutory prerequisite that
a requesting member show “just cause” to be able to examine (and therefore copy) the financial
reports, a step that offered “protection of unions from harassment;” (2) by the complicated nature
of the financial reports which requires “detailed painstaking analysis” of the “vast sums of money
involving a myriad of transactions;” and (3) by the understanding that extending the right to copy
would be consistent with an analogy used by a senator at the time regarding shareholder rights to
examine corporate records.2 549 F.2d at 1124–25. Those considerations do not apply in the present
context.
Additionally, as Local 26 points out, its interpretation of “inspect” is more or less consistent
with the use of the term in § 401(c), the section of the statute involving access to membership lists,
and the Secretary’s interpretation of that provision cited above. See, e.g., Saysana v. Gillen, 590
F.3d 7, 15 n.4 (1st Cir. 2009) (“[T]he normal rule of statutory construction [is] that identical words
used in different parts of the same act are intended to have the same meaning.” (quoting Gustafson
v. Alloyd Co., 513 U.S. 561, 570 (1995))). Previous drafts of that section would have provided

2

The court also noted that a right to copy was consistent with development of case law regarding
the provision. Id. at 1124–25.
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union members the right to “inspect and reproduce” and “inspect and copy” membership lists.
However, the bill after conference was modified to omit the right to copy the lists. See H.R. Rep.
No. 86-1147, at 34 (1959) (Conf. Rep.), reprinted in 1 LMRDA, Legis. History of the LaborManagement Reporting and Disclosure Act of 1959, at 938 (1985) (“The substitute agreed upon
in conference contains both the provisions of the Senate bill and of the House amendment, except
that the provisions from the House amendment are modified to deny candidate the right to copy
membership lists . . . .”). As enacted, § 401(c) provides election candidates the right “once within
30 days prior to an election . . . , to inspect a list containing the names and last known addresses
of all members of the labor organization.” 29 U.S.C. § 481(c). The history of the provision suggests
that the drafters of the LMRDA recognized a difference between “inspect” and “copy,” and, at
least in the present context, the express enactment of a right to the former should not be understood
to imply an unexpressed right to the latter.
Finally, and most conclusively, § 104 itself distinguishes between a right to have a copy of
a CBA and a right to inspect a CBA. It establishes a relatively narrow class of persons who have
a right to a copy of an agreement (an employee directly affected by the agreement) and a broader
class who have a right to inspect (any member and any non-member employee affected by the
agreement). To say the least, it would substantially undercut that distinction to permit an employee
herself to copy out an agreement that she was not permitted to demand a copy of.
To be sure, summary note-taking, rather than complete copying, presents a less clear case.
I recognize that an inability to take summary notes may reduce the usefulness of the right to
inspect, but lines have to be drawn. There is no explicit warrant for note-taking in the statutory
mandate to permit inspection. Moreover, with regard to another statutory right to inspect, the

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Secretary’s own policy judgment is that permitting inspection does not require permitting notetaking.
III.

Conclusion
For the foregoing reasons, I conclude and rule that Poweigha, as a member of Local 26, is

entitled to inspect copies of the collective bargaining agreements Local 26 made with any
employer, not just Levy Restaurants. Local 26 is not required to permit her to take notes during
that inspection.
The Secretary’s Motion for Judgment on the Pleadings (dkt. no. 13) is DENIED and Local
26’s Cross-Motion for Judgment on the Pleadings (dkt. no. 16) is GRANTED to the extent
described in this opinion. Judgment shall enter in favor of the defendant.
It is SO ORDERED.
/s/ George A. O’Toole, Jr.
United States District Judge

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