Sheet Metal Workers International Assn. v. Lynn – Oral Argument – November 07, 1988

Media for Sheet Metal Workers International Assn. v. Lynn

Audio Transcription for Opinion Announcement – January 18, 1989 in Sheet Metal Workers International Assn. v. Lynn

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William H. Rehnquist:

We’ll hear argument next in in No. 86-1940, Sheet Metal Workers’ International Association v. Edward Lynn.

Mr. Fisher, you may proceed whenever you’re ready.

Donald W. Fisher:

May it please the Court:

The case at bar is similar to and the International submits a logical, at most a logical extension, of Finnegan v. Leu, which has decided by this Court about five years ago.

If anything, the case is a stronger case for the union than Finnegan, because in Finnegan, there were 15 appointed business agents that were working, and who were dismissed because they had in the past supported the political opponent of the incumbent president and campaigned for him.

And in Finnegan, the new president, the newly-elected president, extrapolated from that fact, believing that these people would not be good agents.

They would not be loyal to him, they would not carry out his policies, and therefore he dismissed them on a wholesale basis.

In this case, we have–

xxx–

Donald W. Fisher:

–In the Finnegan case, it was held that an elected, an appointed agent, such as these business agents, were not denied their rights under sections 101(a)(1) and (a)(2) of the LMRDA, because of this indirect infringement upon their expressive activity, as I read the case, Mr. Justice White.

In this case, we have the same type of confidential policymaking agents.

In this case, the agent who was removed from his office during the period of the trusteeship, was originally elected to his position, but at the time the activity involved occurred, the union had been placed under a trusteeship by the International Union, and the trusteeship was administering the affairs of the local union, and had plenary authority under the union constitution to remove and replace any officers or employees of the local union.

Now, this particular business agent, Lynn, not only was likely not to support the rehabilitative policies of the trustee, but he actually did not support them, and in truth, he sabotaged the policies.

And it was only after this series of events took place that the trustee decided that he could not continue to operate and administer the affairs of the local union and try to correct the conditions for which the trusteeship was imposed with Lynn on his staff.

So Lynn–

William H. Rehnquist:

–Can a trustee, Mr. Fisher, make policy for the local the same way as elected officials could, if it weren’t in trusteeship?

Donald W. Fisher:

–Yes, sir.

The trusteeship has the authority to administer the affairs completely of the local union during the period of the trusteeship, Mr. Chief Justice.

John Paul Stevens:

But does it have the authority to raise the dues?

Donald W. Fisher:

No, sir.

It does not the authority to raise the dues.

John Paul Stevens:

Well, isn’t that a legitimate issue for debate within the union, even though it’s in trusteeship?

Donald W. Fisher:

Well, it is not… Mr. Justice Stevens, it is not the position of the International Union that it is not a legitimate matter for debate, just as in the Finnegan case, it was a legitimate matter for debate who was to be the next president of the local union.

It is of course a right of a member under sections 101(a)(1) and 101(a)(2) as a member to take positions on matters of importance in local union affairs.

John Paul Stevens:

Well, did this man have the right to take the position he took, or… why is that sabotaging the trusteeship?

Donald W. Fisher:

Well, because–

John Paul Stevens:

If it’s something that is open for fair discussion within the union?

Donald W. Fisher:

–Well, it is no more open, Justice Stevens, than the issue of who was to be president, as I say, in Finnegan v. Leu.

Every member has the right to take a position on issues before the local union, and every right, every member of a local union definitely has a right to express those views.

Those are rights of membership, and Mr. Lynn, after he was removed from his position as a business manager, continued to have his rights to express himself on issues that came before the local union.

Donald W. Fisher:

There is no–

John Paul Stevens:

The only question I have now is if I understand your word sabotage.

Donald W. Fisher:

–The trustee wished to encourage the members to support his program of correcting the conditions in the local union–

John Paul Stevens:

But specifically you wanted him to support–

–By a dues increase.

–By the dues increase.

Donald W. Fisher:

And he wanted that policy to be supported by the agents, the business manager has the right and the duty and the trustee, who was in control of the union in place of the business manager, has the right and the duty and in fact, he must act through people who become his representatives.

Now, when a representative of the trustee… it could just as well have been a representative of the manager, if the local wasn’t in trusteeship–

John Paul Stevens:

Well, it’s… except the difference is that in the other case, the leader of the union has been democratically selected, so presumably, the people that that leader would appoint are those that the majority of the voting membership would want in those positions.

But you don’t have that situation under trusteeship.

Donald W. Fisher:

–You do not have this, Mr. Justice Stevens, in this case.

But we do have Title 3 of the LMRDA, which recognizes the imperative necessity for putting unions under autocratic control under a condition of trusteeship to operate for a period of at least 18 months, during which the presumption of legitimacy applies, in order to work a union out of these conditions of extremis that caused the International to impose a trusteeship in the first place.

And in this case, there was never a question but that the trusteeship was properly imposed.

In fact, all of the union officials, all of… the president, the business manager, all of the business agents, including Mr. Lynn himself, did send a letter to the General President of the International Union asking for relief, including a trusteeship, if he considered it desirable, because the local union needed help.

Sandra Day O’Connor:

Well, Mr. Fisher, doesn’t Title 3 also provide that if a trustee is established, that it will be administered for legitimate purposes?

Donald W. Fisher:

It does, Justice O’Connor.

Sandra Day O’Connor:

And how is it legitimate for the trustee to try to stifle dissent on this issue of dues increase?

Donald W. Fisher:

Justice O’Connor, it is not, and it seems to me this is one of the lessons from Finnegan… it is not stifling dissent in the local union for a person in authority, a business manager or an International Union trustee to wish to present the program through agents that will agree with him, and carry out his policy.

Just as Mr. Leu wanted–

Sandra Day O’Connor:

Well, what if the agents don’t agree with him?

In their honest disagreement, does the trustee have a right to stifle that?

Donald W. Fisher:

–The trustee, it is our position, has the right to remove them as his agents… as the persons through whom he must act, and whom he must necessarily rely on, and with whom he is in a confidential position with, relationship with.

After that, obviously, as union members, the individuals are free to take any position on any issue that they wish.

I mean, their rights, as union members, of speech have not been infringed, and as the Court said in Finnegan, we are dealing with what is at most an indirect infringement of speech when a union employee is removed from his position because of his disagreement on a matter of principle with his superior.

Otherwise, a principle certainly must have the right under the Act… and we think this was recognized in Finnegan… to have agents who are responsive to him, and who will carry out his wishes.

Mr. Lynn did not.

Mr. Lynn not only opposed the policies of the dues increase, which was a critical part of the policy, but he spoke against it.

He campaigned against it.

He belonged to organizations and attempted to induce them to oppose it.

He spoke against the issue vigorously at the meeting, and then when the issue was defeated, he publicly crowed about it.

Donald W. Fisher:

He took credit for defeating the very policy of the person who was his principal and the policy he was attempting to espouse.

William H. Rehnquist:

If the union hadn’t been in trusteeship, Mr. Fisher, the people in charge of the union under the union by laws could have removed Mr. Lynn the same way the trustee aid?

Donald W. Fisher:

Not in… under the constitution of this union, there is no removal power, arbitrary removal power on the part of, let us say, the business manager, who has the right to direct the business agents.

The only way that a business agent can be removed from office is by the process, under the union’s constitution, of filing charges.

There would have to be a hearing on these charges.

It would be tried before probably a local union trial board, and they would decide either that there were grounds for his removal or there weren’t.

William H. Rehnquist:

That wasn’t done here, though.

Donald W. Fisher:

No, sir, because the trustee… once the union is placed under trusteeship, under the constitution of the Sheet Metal Workers, has the authority on his own to remove and replace anyone he wishes.

He has plenary power of removal and replacement, not only of Mr. Lynn, but of other employees in the union hierarchy also.

Now, in the Leu case, of course, in that particular local union… it was a Teamsters’ Local… in that, in that case, the business, or the president, who was essentially here the same as a business manager in many union hierarchies… the president did have the right to replace and remove his agents.

And I… we think that this case is no more than an extension of the law of agency, that a principal does have the right to work through agents with whom he has compatibility, with whom he is comfortable.

John Paul Stevens:

May I ask, Mr. Fisher, would the case be any different if instead of being in trusteeship, you just had a different union constitution, and just gave the head of the union the authority to remove all business agents, even those that had been elected?

It would be the same case, wouldn’t it?

Donald W. Fisher:

If the president of the union had the authority to remove elected business agents, and it was in the… and he has such authority in the constitution?

It would get closer to the same case.

It would get closer also to Finnegan v. Leu, Mr. Justice Stevens.

John Paul Stevens:

But it doesn’t seem to me the trusteeship is relevant for anything except the fact, as you suggest, that the trustee has the power of removal, because certainly you would… I would think you would agree that there would be a violation if they said: take him out in the alley and beat him up because of the speeches, or something of that kind.

That would be a violation, wouldn’t it?

Donald W. Fisher:

That is taking a person’s membership rights–

John Paul Stevens:

No, no, no membership right.

He’d still have his right to everything… the same membership rights he has.

He just would have suffered same adverse consequences from his speech.

But he’d remain a member of the union, all the job rights, and all that.

Donald W. Fisher:

–Well, that was suggested in the brief, Mr. Justice Stevens.

We don’t think that that analogy or that example is applicable.

John Paul Stevens:

Well, would you think there would be a violation in that instance?

Yes or no?

Donald W. Fisher:

There would be a violation of his right as a member, because he was assaulted, physically, physically harmed, for speaking out on an issue.

That, it seems to me, is quite different from saying that a person has the right to take positions diametrically opposed to those of his principal and remain employed by the union.

We concede that he had a right, as a member, to go to a meeting and to speak, and to take any position that he wished to take as a union member.

Donald W. Fisher:

But to say that that person also has the right to be and to remain an agent–

John Paul Stevens:

What if they just cut his salary in half, but let him continue in his position?

That would be forbidden, then, I suppose?

We don’t like the speech you made, so instead of making $300 a month in this job, you’ll make $100.

Donald W. Fisher:

–Justice Stevens, I really don’t know the answer to that.

All I know is that this is a question of a right to choose the people that you want to work with.

You either work with them, on the one hand, or you don’t work with them.

Now, if you can penalize them, you say, in some way, by cutting their salary, I really don’t know what the answer to that question would be.

I would think it would be less than the situation we have here, which is a person has the right to select.

For instance, I don’t think cutting–

Well–

Donald W. Fisher:

–the salary in half of an agent would mean that the principal was unwilling to work with him, I mean, the normal–

–Well, in this case–

Donald W. Fisher:

–Excuse me, Justice Marshall.

Thurgood Marshall:

–Well, in this case, if a business agent makes a speech that the president of the union, the International President, doesn’t like, what it anything can he do?

Donald W. Fisher:

The International President?

Thurgood Marshall:

Yes, sir.

Donald W. Fisher:

He cannot do anything to the–

Thurgood Marshall:

He can… he can send–

Donald W. Fisher:

–The International President cannot… well, do you mean… if the International President had someone on his staff, who was–

Thurgood Marshall:

–A business agent like this business agent here.

Donald W. Fisher:

–Yes, sir.

Thurgood Marshall:

What can he do or his own?

Against that agent.

Donald W. Fisher:

Well, the International President, when the local union is operating under conditions of local autonomy, could do nothing more than prefer charges if he felt that what the agent did or what the–

Thurgood Marshall:

Is there any other way he could get to him?

Donald W. Fisher:

–Not unless there was a violation of–

Thurgood Marshall:

Other than to put the local in a trusteeship?

Donald W. Fisher:

–Well, the local is not placed into trusteeship for any improper or ulterior motive here.

Everyone wanted–

Thurgood Marshall:

Well, couldn’t it be done?

Donald W. Fisher:

–No, sir.

I believe under Title 3–

Thurgood Marshall:

Well, what would stop it from being done?

Donald W. Fisher:

–What would stop it from being done is it would not be for a proper purpose under the statute.

A suit could be brought.

Thurgood Marshall:

Well, would that stop it?

Don’t some labor unions do things improperly?

Donald W. Fisher:

Well, that’s why the Landram Griffin law was enacted, and there are rights given to members who believe that their rights or their prerogatives under the Bill of Rights have been violated.

Thurgood Marshall:

This man was incalcitrant.

You couldn’t get rid of him any way but by trusteeship… am I right or wrong?

Donald W. Fisher:

I… I can’t agree with the proposition you’re positing, Mr. Justice Marshall.

Thurgood Marshall:

Yes.

But am I right–

Donald W. Fisher:

I can’t see it, because there is no evidence whatever in this case, and in fact it is not true that the trusteeship was imposed in any way because of the presence on the staff of Mr. Lynn as a business agent.

Thurgood Marshall:

–Mine was just a hypothetical, it wasn’t this case.

Donald W. Fisher:

A trusteeship that was imposed for the purpose of getting rid of a business agent that a union president or a general president didn’t like would not be imposed for one of the purposes under the statute, and it would be impermissible if challenged in suit.

Thurgood Marshall:

Thank you.

Donald W. Fisher:

Now, it is clear, moreover, in this case, that Mr. Lynn was not really opposed to a dues increase as such, because he was asked by the trustee, Mr. Hawkins, to support the policy and he said he wouldn’t support it, and Mr. Hawkins asked Mr. Lynn what it would take to support it, and he said you’ve got to fire two other people on the staff.

You’ve got to fire the business manager, who was a Mr. Fox, and you’ve got to fire another business agent… there were two business agents on the staff.

xxx Mr. Hawkins.

After such a statement is made to the principal, who has to work through agents, that I won’t support this policy unless you fire these people, and if you do fire these people, I will support the policy, he could not work with that agent.

It became a burden and the statute, if it please the Court, does not require union officials with plenary removal authority to work through agents that they cannot… that are not cooperating with them, and that they cannot deal with, and will not further their objectives.

It was found by the Court below, and it is not disputed, that Lynn’s suspension from employment as business agent didn’t impair his membership rights in the union.

He was entitled to and did attend membership meetings; he did express himself on issue that came before the union, and he exercised all rights of membership, just as the dismissed agents in the Finnegan v. Leu case did.

John Paul Stevens:

Mr. Fisher, is there any evidence that this agent was unsatisfactory for any reason except his opposition to the dues increase?

Donald W. Fisher:

Well, it turned out, subsequently… which is not part of this case… he, his… he was not performing his duties overall in a satisfactory manner.

But that is not before the Court, and it isn’t part of the case, Justice Stevens.

There were other complaints, but it is… it appears on the basis of the evidence… this case was submitted on a motion for summary judgement.

In fact, it was cross-motions for summary judgement, and there were undisputed issues of fact that were submitted before the court.

Donald W. Fisher:

And the court had those controverted issues of fact, and decided this case on the basis of those facts and of no other cases… no other facts, excuse me.

William J. Brennan, Jr.:

Is it true that the… as Lynn’s brief says, that after he was removed, he was never dispatched for work for the union’s hiring hall?

Donald W. Fisher:

That is an issue that is being litigated at this time before the National Labor Relations Board, and that has never been resolved.

And those are not the issues, again, that were before the Court on this first count.

The only issue raised in the count that is before this Court is the question of whether his removal as business agent violated his speech rights under section 101(a)(1) and 101(a)(2) of the Act.

And that is… that is the only issue.

The other parts of the case were dismissed, and they have not been appealed.

They are not before this Court, and therefore the union says no, but it’s a question that has never been resolved.

John Paul Stevens:

But for purposes of our decision, we assume none of that other happened?

I think you’re–

Donald W. Fisher:

That is–

John Paul Stevens:

–but on the other hand, we also assume that really the only reason for discharge was his speech?

Donald W. Fisher:

–Well, his–

John Paul Stevens:

Even though there may well have been other factors.

Donald W. Fisher:

–No, his speech, and his statement that you fire these other two people, and then I’ll support you.

It is his position of opposition, his position of opposition to a very important objective–

John Paul Stevens:

Well, [inaudible] to whether you’re trying, you try and solve the financial problems by cutting expenses on the one hand, or by raising dues on the other?

I know it’s oversimplifying–

Donald W. Fisher:

–Certainly.

John Paul Stevens:

–and one way to cut expenses is to get rid of some of the, some of these people, and this was consistent with his views on the major authority.

Donald W. Fisher:

Well, I’m not saying that there isn’t logic to his position, of course.

But the principal made a decision, and he wanted his views to be–

John Paul Stevens:

But the irony of your argument is that if the principal sort of acts as though he has the right to make the decision when, as I understand it, it is a decision that had to be made by the membership?

Donald W. Fisher:

–Unquestionably.

It’s the same kind of decision–

There’s some tension there.

Donald W. Fisher:

–that was made by the members of the local union in Finnegan v. Leu.

I mean, you have to have an election to elect officers, and you have to have an election, or you have to have a vote in order to raise dues.

I will reserve–

Antonin Scalia:

Please, let me ask you–

Donald W. Fisher:

–Yes, sir, Mr. Justice Scalia.

Antonin Scalia:

–You referred to the trustee’s authority repeatedly as autocratic.

It Is autocratic for most things, but is there any indication that he is supposed to have some special authority to determine the outcome of elections on that one issue of dues increase which is left to the democratic process?

Donald W. Fisher:

Oh, no.

When I said autocratic, he does have autocratic authority in terms of who’s going to work and who isn’t going to work, and what things are done.

Antonin Scalia:

Well, virtually everything, except with respect to dues increase.

That’s not his decision.

That has to be taken democratically.

Donald W. Fisher:

That is correct, and as a member, he had the right to oppose it.

But as a person attempting to implement the policy of the trustee, the trustee wished to have his representatives at least not actively oppose his program to solve the union’s economic problems by a dues increase.

Now, that could be turned down by the members… there is no doubt about it, and in this case it was, Justice Scalia.

But it’s a question of whether this… whether after having refused to go along with the team to carry out the policy of the superior official, in those circumstances, the principal could get rid of an unwanted agent.

Antonin Scalia:

Well, that’s the crux of the case, as far as I’m concerned… whether the authority given to the trustee, the autocratic authority… I think it’s right to refer to them as autocratic authorities… includes the authority to influence by his actions the outcome of that democratic election.

That one item–

Donald W. Fisher:

Well, I don’t know that… Justice Scalia, I’m not saying that it’s influence.

He wasn’t fired because he didn’t get up and speak for it.

But he totally opposed it, and it was against the program and it was against the policy that the trustee was attempting to input, and–

Antonin Scalia:

–But under your view he could have been fired for refusing to get up and speak for it.

Donald W. Fisher:

–Oh, no.

I’m not… I really don’t say that, Justice Stevens.

I’m not saying that at all.

Antonin Scalia:

But why not, if he has that autocratic power?

Donald W. Fisher:

No, if I used the term autocratic, I may have made a problem for myself.

I’m not talking about Czarist Russia, or anything like that.

I’m simply saying that the union trustee does have the right to administer the affairs and to remove personnel, and it is so stated in the constitution, and it is at least as much authority as Mr. Leu, the new business, or the new president in Finnegan v. Leu, had, when he fired those 15 business agents.

John Paul Stevens:

Well, are you doubting his power to remove him for refusing to support affirmatively the dues increase?

Donald W. Fisher:

Refusing to support affirmatively?

John Paul Stevens:

Yes.

Instead of the facts we have, just say he asked him to get up and make a speech in favor of it, and he said: I won’t do it.

Could he then have fired him?

Donald W. Fisher:

I presume he could have.

William H. Rehnquist:

Thank you, Mr. Fisher.

We’ll hear now from you, Mr. Stark.

Bruce M. Stark:

Thank you, Mr. Chief Justice, and may it please the Court:

I think what we need some elaboration on the facts as to how this came about, that Lynn ran for office on a platform of economy and fiscal integrity of his union, something that predated the conflict that we have here.

A majority of members of the union were concerned with the fiscal well-being of their union and formed a sheet metal club.

And that sheet metal club sponsored a group of candidates to run for office on that enunciated platform.

And Mr. Lynn prevailed over six or eight other candidates for the position.

He was elected by a majority of the members to speak out on the policy that the sheet metal club supported.

William H. Rehnquist:

He was elected their business agent?

Bruce M. Stark:

Yes.

William H. Rehnquist:

And what are the duties of the business agent?

Bruce M. Stark:

It appears that in Mr. Lynn’s case, the duties of the business agent involved enforcing the collective bargaining agreement, handling grievances, negotiating the terms of the bargaining agreement, in some instances signing the bargaining agreement, and setting policy within the union.

xxx–

Bruce M. Stark:

I believe he had the job a little over… almost two years.

A little over a year.

William H. Rehnquist:

–Who were his superior officers in the local, or other officers in the local?

Bruce M. Stark:

There was another business agent, there was a business manager, there was a president, there was an executive Board, and some other and sundry offices that were all elected.

xxx–

Bruce M. Stark:

Well, Petitioners claim that there was a subordination there.

I would suggest that as a duly elected officer, he had the same status as any other duly elected officer, albeit perhaps some different duties.

Byron R. White:

–Well, suppose the executive committee and the president, whoever it was that could try to get some help out of him decided on a program, and they wanted to sell it to them.

Suppose that they wanted, the old committee wanted to raise dues, and they would have to get the consent of the membership?

Bruce M. Stark:

Right.

Byron R. White:

And they asked, they ask the business agents, everybody who is an elected member to help, to go out and support it, or at least not oppose it.

Would that have been cause for removal of the business agent?

Bruce M. Stark:

Absolutely not.

Byron R. White:

Because?

Bruce M. Stark:

Because it’s a free speech right, it’s a matter of open debate at a membership meeting where reasonable people can agree and disagree as to the wisdom of that course of action.

Byron R. White:

Well, I know, but people can agree or disagree on all sorts of… whether a particular shop rule is, or a particular provision of a collective bargaining agreement is valid.

Byron R. White:

Do you… would the business agent be violating any duty to his superiors if he refused to support the ratification of a particular collective bargaining agreement that has been negotiated by his superiors?

Bruce M. Stark:

Mr. Justice, when you say his superiors, perhaps I’m confused.

As the duly elected business representative–

Byron R. White:

Well, whoever they are.

Suppose the president and the executive committee, whoever they are, ask him to support this collective bargaining agreement.

Bruce M. Stark:

–No, no.

Because the labor union is a microcosm of our society as a whole, and our elected officials do not follow in locked step with one another.

There’s room for divergent opinion, and in this case, Mr. Lynn was representing and enunciating a position on which he based his platform for election, and I would suggest that his superiors were the majority of the members who elected him, and the majority of the members that eventually prevailed on four, not just one or two, but four propositions for the membership to raise dues and four which were rejected.

Thurgood Marshall:

Where is the constitution of the local union?

Is it in the record?

Bruce M. Stark:

Portions of it are, Your Honor.

Thurgood Marshall:

Sir?

Bruce M. Stark:

Portions of it are, Your Honor.

Thurgood Marshall:

Well, is the portion about the man involved here, his duties, is that in the record?

Bruce M. Stark:

As to his official duties as a business agent, it describes in rather broad fashion what a business agent might do.

Thurgood Marshall:

Well, if I ask you what was his duties, would you mind telling me what his duties were?

Bruce M. Stark:

Of course, Your Honor.

Thurgood Marshall:

You’d mind?

Well, don’t do it.

[Laughter]

Bruce M. Stark:

It’s at page 50 of the joint appendix, section 8 of the constitution gives some rather general and broad framework of the duties of a business manager and a business representative.

However, that’s not dispositive of what Mr. Lynn actually did in Local 75.

I think we have to bear in mind that the Sheet Metal Workers is a rather large union, that encompasses many different crafts.

We have the construction sheet metal works, for example, who put in the duct work for air conditioning and heating in buildings, whereas Mr. Lynn was in a kitchen fabricating shop, where they manufacture the stainless steel and the custom-made kitchenware that goes into a commercial restaurant facility.

So the duty as spelled out broadly in the Sheet Metal Workers’ constitution does not necessarily apply strictly to Mr. Lynn’s duties.

Antonin Scalia:

Well, among his duties are to assist and cooperate with the officers of local unions and the members thereof in carrying out the provisions of this constitution.

Bruce M. Stark:

And Mr. Lynn was doing exactly that.

He was cooperating with the majority of the membership who felt that reducing expenses was the first step towards fiscal responsibility rather than raising dues.

I would say that–

Antonin Scalia:

Are you sure that this union couldn’t have a standard policy on a matter such as whether a particular clause should be included in the next… in the next labor agreement?

Antonin Scalia:

The president might want it, and the vice president might not want it, and they could present no common front?

Bruce M. Stark:

–Well, that occurs all the time in negotiating a collective bargaining agreement, and very often there will be a compromise on a clause in a collective bargaining agreement that does not represent a total consensus of the bargainers, and very often it’s submitted to the membership, and the membership reject it because they did want a particular clause, and the negotiating team did not get it.

The ultimate sovereignty is with the membership.

Antonin Scalia:

There’s no obligation for the officers to go along with the president of the union on matters such as this sort?

Bruce M. Stark:

Not when they’re going to the membership, because the membership represents the sovereignty of the union.

William H. Rehnquist:

Take a parliamentary system of government, Mr. Stark.

The parliament represents the sovereignty of the people, and yet you’ll have a cabinet and a prime minister.

Now, the people in the cabinet are themselves members of parliament.

They have every right that a member of parliament has.

But you don’t stay in the Cabinet unless you go along with the government.

You don’t say: I’m going to parliament and appealing because you’re the sovereign.

The prime minister says: Fine.

You go back and take your seat as a member, but you’re out of the cabinet.

Now, why isn’t that analogy applicable here?

Bruce M. Stark:

Because you’re not elected to the cabinet.

The president appoints a cabinet, and also we’re dealing with a party system where we’re dealing with such things as party loyalty, and the analogy just is not representative to a union such as the Sheet Metal Workers’ Union where you do not have a Party A and a Party B, and you’re maintaining party loyalty and party discipline.

William H. Rehnquist:

This case, to your mind, then turns on whether or not Lynn was elected or appointed?

Bruce M. Stark:

Oh, I think it’s very significant, because Mr. Lynn was elected to represent a particular point of view of his constituency, which did comprise the majority of the membership.

Sandra Day O’Connor:

Well, did the trustee have the power to dismiss him for any reason during the trusteeship?

Bruce M. Stark:

Absolutely not.

The trustee had no greater powers than were available to any other union officer under the LMRDA.

The council Indicates plenary powers, but there is absolutely nothing to substantiate that discussion of plenary powers.

The plenary powers are not to be found in their brief, nor in the law.

In fact, Petitioners admit–

Sandra Day O’Connor:

So it doesn’t turn on this particular right to discuss a dues increase?

You say there is nothing that would have given the trustees the power to take the action that he did against Mr. Lynn?

Bruce M. Stark:

–Well, when you say that there was nothing–

Sandra Day O’Connor:

That’s my question.

Bruce M. Stark:

–Well, If we want to pose that hypothetical, and assume that they found that Mr. Lynn was embezzling money, well of course there’s an action that the trustee could take, and there is a procedural due process for such an exigency, that they could bring charges against him, they could take him away from the funds, and bring charges against him–

But for no reason of policy?

Bruce M. Stark:

–Pardon?

Sandra Day O’Connor:

But for no reason of policy?

Just a desire to have someone the trustee can get along with?

Bruce M. Stark:

In your second hypothetical, Justice O’Connor, no.

You could not… the trustee could not remove him just because he disliked him.

He’s a duly elected officer, and in this case there’s no doubt, in fact the trustee admitted that he terminated him, removed him, kicked him out of office.

Sandra Day O’Connor:

Is that some right that you find in Title 1, there’s some section in Title 1 of the Act that you’re relying on?

Bruce M. Stark:

Yes.

Sandra Day O’Connor:

And what is it?

Bruce M. Stark:

The free speech provision, of speaking out on a matter of public concern before a general union meeting, as required by 101 (a)(3).

Byron R. White:

xxx–

Bruce M. Stark:

I have no disagreement with Finnegan.

Byron R. White:

–Well, they were exercising their right of speech, their claimed right of speech.

Bruce M. Stark:

Well, there are many unions such as in Finnegan, which was a Teamsters’ case, the Operating Engineers, and the Machinists Union, who elect a business manager who enunciates a platform and a policy that he proposes to carry out.

And in Finnegan, this Court correctly ruled that that business manager could select his own staff to carry out that policy which was mandated by his election by the membership.

Byron R. White:

But the staff, however, were appointed.

Bruce M. Stark:

Pardon?

Byron R. White:

The staff were appointed.

Bruce M. Stark:

The staff were appointed.

In this case, we have Mr. Lynn, who was duly elected on a platform and to represent a constituency just the same as the principal business manager who was duly elected.

Byron R. White:

Well, the business of speaking was… if that was the, if that’s what was being retaliated against, in Finnegan, it is here, too.

Bruce M. Stark:

Except, except that the business agents in Finnegan were appointed.

They did not run for office.

They did not have to stand for election by the membership.

In this case, Lynn did.

Byron R. White:

All right but in this case, though, they got canned for speaking.

Bruce M. Stark:

But in this case, Lynn was elected by the membership to speak out and represent a certain philosophy.

William H. Rehnquist:

Your… your client was the plaintiff in the Federal District Court, Mr. Stark?

Bruce M. Stark:

Yes, Your Honor.

William H. Rehnquist:

Did he make any claim there or in the Ninth Circuit that apart from Title 1, the trustee had no authority under the bylaws or constitution to remove him?

Bruce M. Stark:

Yes, Your Honor.

It was alleged in the complaint.

William H. Rehnquist:

And old the District Court or the Court of Appeals ever pass on that question?

Bruce M. Stark:

Well, since it went to the Court… well, the District Court ruled that Finnegan applied, that somehow or other there was a–

William H. Rehnquist:

Well, but I’m not interested in what the District Court ruled on whether Finnegan applied.

I want to know did the District Court ever pass on the question of whether apart from Title 1 the union constitution or bylaws would have prevented the trustee from removing your client?

Bruce M. Stark:

–Not directly, no, Your honor.

William H. Rehnquist:

And did the Ninth Circuit ever pass on it?

They wouldn’t have gone to Title 1 if they had, would they?

Bruce M. Stark:

Well, the Ninth Circuit ruled that a cause of action had been stated, which precluded summary Judgement–

William H. Rehnquist:

Under Title 1.

Bruce M. Stark:

–Under Title 1.

William H. Rehnquist:

But, do you make any point here that the union constitution or bylaws, apart from Title 1, didn’t authorize the trustee to remove?

Had it not been for Title 1, do you contend that the trustee nevertheless couldn’t have–

Bruce M. Stark:

Well, under the union’s constitution and bylaws, it’s purported that the trustee would have that authority.

William H. Rehnquist:

–So if Title 1 doesn’t prevent it, nothing else does.

Bruce M. Stark:

That’s correct.

Title 1 precludes that, because we’re dealing with a free speech issue on a matter coming before the membership, and the distinction with Finnegan is that Mr. Lynn was duly elected for that purpose, to represent his constituency on a particular point of view.

Antonin Scalia:

Mr. Stark, suppose there hadn’t been a trustee appointed.

Would the president of the union have had the right to dismiss your client, if your client had been caught embezzling funds?

Bruce M. Stark:

Well, if he was caught embezzling funds, he would have had the right to prefer charges against him, and start removal action against him.

Antonin Scalia:

Which would… removal action would what?

Go to the memberships like a kind of impeachment, or what?

Bruce M. Stark:

Well, as counsel indicated, it would go to a trial committee.

There would be charges brought against him, he’d be given an opportunity to prepare a defense.

There would be a full and fair hearing before a tribunal within the union.

Antonin Scalia:

Even though he was elected?

Bruce M. Stark:

Even though he was elected.

It’s the same as an impeachment or a recall of any other duly elected official.

But under these circumstances, no, he would not, and I agree with Justice Stevens, who’s saying that the trusteeship is irrelevant.

Bruce M. Stark:

It is irrelevant, because we’re dealing with a tree speech issue under Title 1, that he chose to speak out in opposition to a dues increase as his constituency elected him to do, and the constituency agreed with him… not once, but four times they agreed with him.

John Paul Stevens:

May I just add… supposing an embezzlement charge had been brought by the trustee.

Would the trustee have had to follow the same procedures of preferring charges, and so on, or could he have just sliced him off right away?

Bruce M. Stark:

No.

The trustee would have to follow the same provisions in Title 1 of the LMRDA.

John Paul Stevens:

well, does the–

Bruce M. Stark:

Title 1 being procedural due process far a given offense, and section 609 being an absolute prohibition of taking any discipline for exercising your rights under the Act.

John Paul Stevens:

–Well, I must confess I’m a little puzzled.

You indicated to the Chief Justice that the trustee did have the power to remove an elected official without following these procedures, as I understood it.

Bruce M. Stark:

Oh, no, no, no, no, no.

I hope I didn’t say that.

John Paul Stevens:

Oh.

You would have to… now, did he follow these procedures in this case?

Bruce M. Stark:

No, he did not.

He did not follow… he did not follow the procedures under the LMRDA, nor did he follow the procedures under the Sheet Metal Workers’ constitution and bylaws.

Because as counsel indicated that if you’re going to remove an elected official, absent any trusteeship, which I still agree is immaterial, that he would still be provided a trial, which was not provided Mr. Lynn.

William H. Rehnquist:

What about there is a trusteeship?

You answered me a few minutes ago, I got the impression you’re giving a different answer to Justice Stevens.

Assume there is a trusteeship… not that the original elected officials are in.

Have you ever contended… do you contend in this Court that the trustee lacks authority under the union constitution or bylaws to remove Lynn?

Bruce M. Stark:

No, because–

Antonin Scalia:

In the manner done here, I think the Chief Justice means, not through the impeachment provisions.

Bruce M. Stark:

–Oh.

Antonin Scalia:

But to remove him the way he was removed here.

Bruce M. Stark:

Well, I get a new ingredient.

Well, yes, Just–

Bruce M. Stark:

One is on embezzlement, and one is on speech.

William H. Rehnquist:

–Yes.

You’ll have to answer… I think you can let each one of us speak for ourselves, and perhaps all of us will let one another do that.

Why don’t you try to answer my question?

Bruce M. Stark:

Your hypothetical, as I understand it, Mr. Chief Justice, is if he was caught embezzling, would the trustee–

William H. Rehnquist:

No.

You’ve been peppered by a number of questions.

My question is this: supposing he were caught or doing exactly what he was doing, speaking in opposition to trustee policy at this meeting, do you claim that the trustee, if there had been no Title 1, do you claim that the trustee lacked authority under either the union constitution or bylaws to fire him for doing that?

Bruce M. Stark:

–Oh, absent Title 1, then the trustee could do that, because that would put us back into pre-LMRDA days.

William H. Rehnquist:

And so you agree the trustee could do that, except for Title 1?

Bruce M. Stark:

That’s correct.

Okay.

Bruce M. Stark:

And the LMRDA.

In fact, the intent of Congress as stated in the preamble to the LMRDA is to correct those very defects, and to correct the very sins that occurred here.

The–

Byron R. White:

xxx before or after LMRDA could have provided that a trustee, if he wanted to remove somebody, had to have good reason.

It could have… the constitution itself could have provided that he couldn’t remove an elected official, for example.

Bruce M. Stark:

–Well–

Did it?

It didn’t.

Bruce M. Stark:

–Well, I think you’re driving at one of the sacred principles of labor unions and collective bargaining agreements, and that is no removal except for just cause.

And purportedly, the Sheet Metal Workers’ constitution enunciates the same thing, but in this case, they did not provide it.

They claimed that by virtue of the trustee, they had plenary powers, as they phrase it, and he could do anything he wanted.

Byron R. White:

Well, I take it that you suggest that we decide this case on the assumption that absent Title 1, the trustee could have done what he did here.

Bruce M. Stark:

Absent Title 1 and prior to the LMRDA, he could have done this.

That is correct, and that is what the LMRDA was passed to preclude occurring, that the trustee in this case had no greater authority than any other officer, and the LMRDA… and in fact, Petitioners admit that they had to go to the membership to get a dues increase under Title 1 of the LMRDA… and then on the other hand, they turn around and say: well, we don’t have to respect Title 1 under the LMRDA, we can just go ahead and remove an official because he spoke out against something that displeased one of the officers.

That is not what the LMRDA is.

Byron R. White:

What do you say about… don’t you think there was, in Finnegan, that… I find a lot in Finnegan that says that Title 1 isn’t violated unless you infringe on members’ rights as members.

Bruce M. Stark:

Yes.

Byron R. White:

Rather than as officers.

Bruce M. Stark:

That’s correct.

In fact, in Finnegan, they… that phrase is repeated several times.

But in this particular case, I would suggest that–

Byron R. White:

They didn’t… they didn’t remove this gentleman, your client, as a member, or even attempt to.

Byron R. White:

They just removed him as an official.

Bruce M. Stark:

–But I would suggest, Your Honor, that making that distinction in this case is artificial and strained, because if the membership elects a person to speak out in their behalf on a certain policy issue, and a minority pulls a coup, and boots him out of office, does that not affect the membership right to have a spokesman of their own choosing?

And I would point out that Finnegan also states that the Act’s primary objective was ensuring that unions would be democratically governed and responsive to the will of the membership.

And that being the case, how can you have a union that is democratically governed and responsive to the will of the membership if you have one dictator, either president, trustee, or business manager, who says: I disagree.

We’re going to get rid of that majority opinion.

And I think that this is the very thing that was also pointed out in Finnegan, that where you’re dealing with a duly elected representative of the membership, that it tips the balance in Lynn’s favor.

This is also spelled out in Finnegan, and I would–

Antonin Scalia:

Mr. Stark, is it critical to your case that the issue involved was, was the question of dues increase?

Suppose the issue had been what terms are we going to negotiate for in the next contract?

Suppose that had been the issue.

Would you still be here?

Bruce M. Stark:

–I’d still be here.

Antonin Scalia:

So it isn’t–

Bruce M. Stark:

Because that is a matter that the membership… that was brought up at the membership at an open meeting, and saying: here’s one proposition, we want to go for wage increases and the other one says: no, we want to go for fringe benefits.

The membership takes a vote, people speak pro and con, the membership votes and says we want to go for wage increase, then you don’t turn around and boot out of office those who spoke on the other side, just because you don’t like them.

Antonin Scalia:

–Even though the trustee, as I understand it, would have the authority to say: we’re going to go for better working conditions rather than a wage increase.

Isn’t he authorized as part of his trusteeship to, to run the union to that extent?

Bruce M. Stark:

Well, again, the trustee has no greater authority than the other officers of the union.

Now, the trustee could in fact say: I don’t want to go to the membership with this issue.

I want to go for wage increases, and that’s it.

And that’s what we’re going to negotiate.

He runs the risk of bringing it back to the membership for a vote, and having various people speak out on it, including perhaps some of the negotiating committee, which often happens, and having the membership turn it down, say: no, we want fringe benefits.

The officer–

Antonin Scalia:

But he can’t fire them for not supporting him on that point, any more than he can fire them for not supporting him on this point of dues increase?

Bruce M. Stark:

–That is correct.

As long as he’s a duly elected officer, which is altogether different situation from Finnegan… altogether.

I would suggest to the Court that what the Petitioners in this case are seeking is to rewrite Title 3 to restore practices that Congress specifically legislated against.

And I would also like to emphasize the fact that we live in a representative democracy.

And Congress in passing the LMRDA sought to apply that to the labor organizations.

And Title 4 would be for nought if minority views could be silenced by immediate reprisals that occurred in this case.

Bruce M. Stark:

And I would like to point out to the Court what those immediate reprisals were.

Within a matter of days, not only was Mr. Lynn booted out of office, he was newer dispatched for work, notwithstanding his A classification, and to this very day–

That’s not before us, though, is it?

Bruce M. Stark:

–No, it’s not, Your Honor.

But I make this point because we are dealing with a summary judgement in the court below, and the Court below in the Ninth Circuit, emphasized the fact that this was a practice on the part of the defendants to stifle dissent and to stifle debate and the antithesis of democratic operation of the unions, and remanded it back to the District Court to hear evidence on those issues that Mr. Lynn alleged, which is at pages 9 and 10 of the record, the joint appendix, in his complaint, that those were viable, genuine issues of material fact to be litigated.

And that’s the reason that I raise it here now… is on that basis that the summary judgement was reversed quite properly by the Ninth Circuit and sent back to the District Court to hear evidence on that point, because Mr. Lynn was in effect not only kicked out of office, he was kicked out of the hiring hall, and has never been dispatched for work.

And, I think too, that the results were immediately achieved.

After Lynn was disciplined, the trustee went back for a fifth vote for a dues increases and finally got it.

And I think that’s a very important fact in this case.

But I think the most important part is what this Court recognized in Finnegan, that unions must be democratically governed and responsive to the will of the membership, and this is exactly why Congress passed the LMRDA.

In their preamble, they pointed out that.

Congress found that very often, labor union members were not allowed to choose representatives of their own choosing, and that the labor unions were not paying due regard to the rights of the individual employees.

And the LMRDA was passed to correct that.

And here we have a situation where a majority of the union members elected Lynn on a specific platform, expecting him to speak out on fiscal responsibility.

When he did so, a minority in the union… albeit under purported power to disregard Title 1 of the LMRDA… booted him out of office, much to the chagrin of the majority of the members at tending that union meeting and voting and saying no dues increase.

This is not a trusteeship issue, for indeed, this is… if it were a trusteeship issue, it would be one of first impression, as far as I can determine, before any federal court.

It would be coming to the Supreme Court for the first time for resolution.

That’s not the case.

We’re dealing with a free speech issue under Title 1, where a membership right was directly attacked by getting rid of the duly elected representative who was acting as spokesman for the members in that union that elected him.

They expected him to.

Thank you.

Thank you, Mr. Stark.

Mr. Fisher, you have five minutes remaining.

Donald W. Fisher:

Thank you, Mr. Chief Justice.

Let me make only the observation that many of the facts that Mr. Stark spoke on are not part of the facts in the record.

This again is a case that was submitted on cross motions for summary Judgement, and the uncontroverted facts are before the Court in the appendices.

An unverified complaint was filed by Mr. Lynn.

Those facts are not assumed to be true with respect to a motion for summary judgement.

This was not the granting of a motion to dismiss, this was a case decided on the basis of a motion for summary judgement.

Now, on the facts of record, to answer the question that some of the Justices asked about, it is clear in the appendix at the joint appendix, at pages 42 and 43, that the general president of the international union, when he imposes a trusteeship, has the power to take such action as he deems necessary to protect the interest and welfare of such local union, and this association and the funds and property and membership thereof, including but not limited to the authority to suspend local union or council officers, business managers or business representatives, fill vacancies in such offices with any representatives of this association or members of such local union, or call elections for that purpose, and impound the books, records, funds and property of any such local union.

Donald W. Fisher:

And the District Judge in the appendix to the petition for the writ of certiorari, at page 33A, found as a uncontroverted fact that the general president delegated to Hawkins as trustee the authority in the constitution under article 3, section 2(c), and he quotes from the constitution,

“To take such action as he deems necessary to protect the interests and welfare of local 75, its funds, property and membership, and the interest and welfare of the international association, including but not limited to the right to suspend local union officers, the business manager and/or business representatives to fill vacancies in such positions. “

Byron R. White:

Well, with all that, was all that you read from that purporting to fine a union member for opposing a dues increase?

Donald W. Fisher:

Well, there is no fine–

Yes or no?

Donald W. Fisher:

–No.

Byron R. White:

And suppose this speech that this man made didn’t have any connection with his job as a union agent.

Donald W. Fisher:

No, I–

Byron R. White:

He just got collective bargaining, administration, and things like that, collective bargaining duties, and the question of a dues increase has nothing to do with his job.

His interest then is as a member.

Why wasn’t he speaking as just a member, and was then disciplined for it by losing his job, that had nothing to do with dues increases?

Donald W. Fisher:

–Well, he was required to operate and work at the direction of the business manager.

Byron R. White:

Well, that… as far as I read, what his job was, he was certainly had to do his job as described in the constitution.

Donald W. Fisher:

Yes, sir.

Byron R. White:

And to do it the way he was told to do it.

Donald W. Fisher:

Yes sir.

Byron R. White:

But it had nothing to do with dues increases.

Donald W. Fisher:

Well, the policy that was formulated by the trustee… the trustee was sent in by the general president.

The trustee was to formulate policies to rehabilitate the affairs of this local union.

This was the policy that was decided upon by the trustee.

It was correct that this policy could not be self-implemented.

This policy had to be submitted to the membership for their approval, because they wanted a dues increase.

Byron R. White:

I don’t blame the trustee for trying to get as much support as he could in the membership.

And he could campaign for it.

But I don’t know why he was entitled to insist that the business agent do anything more than an ordinary union member.

Donald W. Fisher:

Well, because he was his agent, and his personal representative.

Byron R. White:

Not for that purpose.

He was his agent for doing what business agents do.

Donald W. Fisher:

Business agents attempt to follow the policies that are set down by the board of… the executive board of the local union, and when the executive board of the local union is really not operating functionally because of a trusteeship, then the policy of the local union is set by the president.

Now, the members have the right to vote to decide the issue.

Donald W. Fisher:

But in terms of taking a firm position as to whether he is going to oppose it, and try to thwart it–

William H. Rehnquist:

Thank you, Mr. Fisher.

Your time has expired.

The case is submitted.

The Honorable Court is now adjourned until tomorrow at 10:00.