Quigley v. Giblin

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued May 4, 2009 Decided June 23, 2009

No. 08-7056

MICHAEL J. QUIGLEY ET AL.,

APPELLANTS

v.

VINCENT GIBLIN AND

INTERNATIONAL UNION OF OPERATING ENGINEERS,

APPELLEES

Appeal from the United States District Court

for the District of Columbia

(No. 1:07-cv-00600)

Paul Alan Levy argued the cause for the appellants.

Leon Dayan argued the cause for the appellees. Robert M.

Weinberg and Matthew H. Clash-Drexler were on brief.

Before: HENDERSON, BROWN and KAVANAUGH, Circuit

Judges.

Opinion for the Court filed by Circuit Judge HENDERSON.

KAREN LECRAFT HENDERSON, Circuit Judge: The

International Union of Operating Engineers (Union) adopted a

Resolution requiring all candidates for local union offices and

their supporters to include a password protection function on

2

their campaign websites limiting access to Union members.

Michael Quigley, together with four other Union members

(collectively Quigley), brought an action in district court seeking

a permanent injunction prohibiting the Union from enforcing the

Resolution under section 101(a)(2) of the Labor-Management

Reporting and Disclosure Act (LMRDA), 29 U.S.C. § 411(a)(2).

On cross-motions for summary judgment, the district court

granted summary judgment in favor of the Union. Qui[g]ley v.

Giblin, 582 F. Supp. 2d 1, 14 (D.D.C. 2008). For the reasons set

forth below, we affirm.

I.

The Union is an international labor organization that

represents primarily operating engineers who work as heavy

equipment operators, mechanics and surveyors in the

construction industry and stationary engineers who work in

operations and maintenance. It has approximately 396,000

members and 138 chartered and autonomous local unions in

Canada and the United States. The local unions range in size

from 14 members to over 40,000 members. Elections for local

union office are held in August and nominations are made no

earlier than the May before the election.

In January 2007, the General Executive Board1 adopted the

Campaign Website Resolution, which provides in part:

NOW THEREFORE BE IT RESOLVED THAT the

General Executive Board, in order to assure the fullest

expression of free speech by candidates in Local Union

elections while protecting the Local Unions from

adverse actions by employers, directs that, starting with

Local Union elections to be held in 2007, Local Unions

and their election committees shall require all

1

The General Executive Board governs the Union except when

the General Convention is in session (at five-year intervals).

3

candidates and their supporters who have set up or

wish to set up campaign websites to include a

password protection function; and

BE IT FURTHER RESOLVED THAT the

International Union shall work with the Local Unions

and their election committees to establish appropriate

password protection mechanisms using members’

register numbers or another appropriate mechanism to

identify membership status.

Campaign Website Resolution at 1 (adopted Jan. 2007)

(Resolution) (Joint Appendix (JA) 295). In the prefatory

portion, the Resolution explained that campaign websites “allow

non-members, including employers, access to frequently

sensitive information about the Local Unions” and that “there

have been instances where employers have misused information

obtained from candidates’ websites to the detriment of . . . Local

Unions in organizing campaigns and contract negotiations.” Id.

In a letter dated February 12, 2007 and sent to all local union

business managers, the Union General President stated that the

Resolution “will not in any way limit the content of what is said

on such websites” but “will merely attempt to assure that

sensitive information concerning Local Union affairs is shared

among members, and is not available to employers and others

with interests contrary to those of the Local Unions.” Letter

from Vincent J. Giblin, Union General President, to All Local

Union Business Managers at 2 (filed May 12, 2007) (JA 297).

The Resolution applies to incumbents running for reelection as

well as challengers. Oral Argument at 26:04, Quigley v. Giblin,

No. 08-7056 (argued May 4, 2009) (Union counsel: “[The

Resolution] absolutely applies to incumbents.”). Although

official local union websites were not expressly covered by the

Resolution, the Giblin letter directed local unions to review their

websites to ensure that sensitive information was password

protected. Letter from Vincent J. Giblin at 2 (JA 297). The

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letter announced that the Resolution would become effective on

April 15, 2007. Id. On March 29, 2007, the appellants filed

their complaint in the district court seeking declaratory and

injunctive relief. Compl. at 11, Qui[g]ley v. Giblin, 582 F. Supp.

2d 1 (D.D.C. Mar. 29, 2007) (No. 07-cv-600) (Compl.). On

April 2, 2007, the General Executive Board changed the

Resolution’s effective date to July 1, 2007.

Shortly thereafter, the General Executive Board adopted

guidelines to implement the Resolution. Letter from Vincent J.

Giblin, Union General President, to All Local Union Business

Managers, Attachment (filed May 12, 2007) (Guidelines) (JA

301). The Guidelines stated that for the upcoming elections, the

Union planned to retain an independent information technology

consulting firm to assist Union members in implementing the

Resolution. Id. The Guidelines authorized the consulting firm

to waive compliance with the Resolution if it determined, “based

on its technical expertise and in its sole discretion,” that

compliance “would require a significant expenditure of money

or significant delay.” Id. They also stated that a Union member

could request an opinion from the Union General President as to

whether the Resolution applied to a particular website. Giblin

opined at his deposition that a campaign website home page did

not need to be password protected if it was “announcing the

candidacy, a picture, a list of potential candidates” or if it

contained a “short biography” of the candidate and “his running

mates” but that other web pages on the site would require

protection. Tr. of Dep. of Vincent J. Giblin at 45, 53 (filed May

28, 2007) (Giblin Dep. Tr.) (JA 323, 325a).

According to the Union’s expert witness, the Union

intended to use a remote authentication password protection

system. Decl. of Joanna M. Pineda at 2 ¶ 9 (filed May 12, 2007)

(Pineda Decl.) (JA 190). Under this system, the person setting

up a campaign website includes “a few lines of programming,”

referred to as “script,” in each web page to be password

5

protected. Id. at 3 ¶ 11 (JA 191). If a Union member attempts

to view a password protected web page, he is directed to a third-

party website and prompted to enter his name and Union

membership number as they appear on his Union card. The

authentication page contains a disclaimer that the third party

“will not log any identifying information (register number or

name) about [Union] members seeking access to any particular

campaign Web site, or the IP address (and any other information

that might indicate the geographic location) of any member

seeking to access any particular web site.” Ex. E to Affidavit of

Paul Alan Levy at 1 (filed May 28, 2007) (JA 446). The third

party will verify the Union member’s information against a list

of Union members’ names and membership numbers supplied

by the Union. If the information is correct, the Union member

will be “automatically redirected back to the original website.”

Pineda Decl. at 2 ¶ 9 (JA 190).

Quigley’s complaint sought a permanent injunction

ordering the Union to revoke the Resolution and to refrain from

enforcing it and a declaratory judgment voiding the Resolution.

Compl. at 11. In May 2007, both parties filed motions for

summary judgment. The district court granted summary

judgment in favor of the Union. Qui[g]ley, 582 F. Supp. 2d at

14. Quigley timely appealed pursuant to 28 U.S.C. § 1291.

II.

We review a district court’s summary judgment de novo.

Defenders of Wildlife v. Gutierrez, 532 F.3d 913, 918 (D.C. Cir.

2008). Summary judgment is appropriate “if the pleadings, the

discovery and disclosure materials on file, and any affidavits

show that there is no genuine issue as to any material fact and

that the movant is entitled to judgment as a matter of law.” Fed.

R. Civ. P. 56(c). We view the evidence in the light most

favorable to the nonmoving party. U.S. Postal Serv. v. Am.

Postal Workers Union, 553 F.3d 686, 692 (D.C. Cir. 2009).

6

A.

Quigley argues that the Resolution violates section

101(a)(2) of the LMRDA, which provides:

Every member of any labor organization shall have the

right to meet and assemble freely with other members;

and to express any views, arguments, or opinions; and

to express at meetings of the labor organization his

views, upon candidates in an election of the labor

organization or upon any business properly before the

meeting, subject to the organization’s established and

reasonable rules pertaining to the conduct of meetings:

Provided, That nothing herein shall be construed to

impair the right of a labor organization to adopt and

enforce reasonable rules as to the responsibility of

every member toward the organization as an institution

and to his refraining from conduct that would interfere

with its performance of its legal or contractual

obligations.

29 U.S.C. § 411(a)(2) (emphasis in original). In United

Steelworkers of America v. Sadlowski, 457 U.S. 102 (1982), the

United States Supreme Court set forth a two-step inquiry “[t]o

determine whether a union rule is valid under [section

101(a)(2)].” 457 U.S. at 111. First, we must “consider whether

the rule interferes with an interest protected by the first part of

§ 101(a)(2).” Id. “If it does, we then determine whether the rule

is ‘reasonable’ and thus sheltered by the proviso to § 101(a)(2).”

Id. The “critical question” under the second step is “whether a

rule that partially interferes with a protected interest is

nevertheless reasonably related to the protection of the

organization as an institution.” Id. at 111-12. “Union rules . . .

are valid under § 101(a)(2) so long as they are reasonable; they

need not pass the stringent tests applied in the First Amendment

context.” Id. at 111.

7

It is undisputed that section 101(a)(2) protects a union

member’s right to communicate with other members.

Appellants’ Br. at 44-45; Appellee’s Br. at 34-35; see Helton v.

NLRB, 656 F.2d 883, 895 (D.C. Cir. 1981) (section 101(a)(2)

“‘designed to protect the rights of union members to discuss

freely and criticize the management of their unions and the

conduct of their officers.’” (quoting Salzhandler v. Caputo, 316

F.2d 445, 448-49 (2d Cir. 1963))). Quigley asserts that the

Resolution interferes with a candidate’s ability to communicate

with Union members in several ways. First, according to both

parties’ experts, internet search engines cannot access password

protected pages, which, Quigley asserts, will limit a Union

member’s ability to find a campaign website using search

engines. The Union’s expert noted, however, that internet

search engines will be able to search a campaign website’s

unprotected home page, which, according to Giblin, may contain

basic information about the candidate and election, thereby

allowing members to locate the campaign website. Moreover,

Quigley asserts that Union members will be unable to receive

automatic updates regarding changes to campaign websites

using Real Simple Syndication (RSS) feeds. According to the

Union’s expert, an internet user cannot, without “a high level of

technological ability,” use an RSS feed to receive automatic

notifications of updates to a password protected page.

Supplemental Decl. of Joanna M. Pineda at 2 ¶ 3 (filed June 9,

2007) (Pineda Supp. Decl.) (JA 194b). The Union asserts

therefore that a Union member’s inability to use RSS is

irrelevant because no evidence shows that Union members will

use RSS feeds to monitor campaign websites. Quigley through

his expert also claims that certain website hosts do not support

scripting, including blogging platforms, YouTube and social

networking sites such as Facebook, thus precluding candidates

and their supporters from using those hosts to set up their

campaign websites or post campaign material. The Union

responds that its members have alternative web hosts that

8

support scripting and Quigley acknowledges that “a number of”

website hosts allow for scripting. Appellee’s Br. at 41-43;

Appellants’ Br. at 19. In addition, Quigley, again through his

expert, maintains that password protection will deter some

Union members from viewing the campaign websites either

because they will not have their log-in information readily

available or because they fear that Union incumbents will find

out that they viewed an insurgent’s campaign website. The

Union’s expert opined that a password requirement would “not

likely” deter Union members from accessing campaign websites,

Pineda Decl. at 5 ¶ 14 (JA 193), but Quigley’s expert disagreed.

Decl. of Mark Brenner at 8-9 ¶¶ 23-25 (filed May 28, 2007) (JA

456-57). The Union also notes that the remote authentication

page contains a disclaimer that it “will not log any identifying

information” about Union members. Ex. E to Affidavit of Paul

Alan Levy at 1 (filed May 28, 2007) (JA 446). Viewing the

evidence in a light most favorable to Quigley, we conclude that

the Resolution may interfere with a Union member’s “right . . .

to express any views, arguments, or opinions,” 29 U.S.C.

§ 411(a)(2), because it limits the means by which a local union

candidate may disseminate his message and may deter some

members from viewing his campaign website.2 We note,

however, that although the Resolution “does affect rights

protected by the statute, as a practical matter the impact may not

be substantial” for the reasons stated by the Union. Sadlowski,

457 U.S. at 113.

2

Quigley also asserts that section 101(a)(2) encompasses a right

to communicate with nonmembers as well as members. Appellants’

Br. at 37-44. Assuming arguendo that it does encompass such a right,

the question remains whether the Resolution is reasonable. See

Sadlowski, 457 U.S. at 111 (“[W]e first consider whether the rule

interferes with an interest protected by the first part of § 101(a)(2). If

it does, we then determine whether the rule is ‘reasonable’ and thus

sheltered by the proviso to § 101(a)(2).”) (emphasis added).

9

We now turn to whether the Resolution is “reasonably

related to the protection of the [Union] as an institution.” Id. at

111-12. In Sadlowski, the Supreme Court held that a union

“outsider rule” prohibiting union members from accepting

campaign contributions from nonmembers was permissible

under the proviso to section 101(a)(2). Id. at 121. Relying on

legislative history, the Court concluded that the “outsider rule”

“serves a legitimate purpose that is clearly protected under the

statute,” specifically “minimiz[ing] outsider influence” and

enabling the union “to maintain control over its own affairs.”

Id. at 115-117. It then rejected the argument that the “outsider

rule” was nonetheless unreasonable because the union could

have adopted less restrictive alternatives. Id. at 118-119. The

Court concluded that the alternatives would not have addressed

the problem of outsider influence as effectively and that the

union had a “reasonable basis for its decision to impose a broad

ban.” Id. at 118.

The Union argues that the Resolution is designed to prevent

employers from obtaining sensitive Union information from

campaign websites and using it to undermine local union

organizing campaigns or to gain an advantage in contract

negotiations. Section 101(a)(2) permits a union “to adopt and

enforce reasonable rules as to . . . [every member’s] refraining

from conduct that would interfere with its performance of its

legal or contractual obligations,” 29 U.S.C. § 411(a)(2), and the

union has a legal obligation to bargain collectively with an

employer, 29 U.S.C. § 158(b)(3), (d). The Secretary of the

United States Department of Labor recognized a union’s interest

in keeping certain information confidential when it excepted

from itemized disclosure on annual union financial reports

“[i]nformation that might provide insight into the reporting

union’s organizing strategy” or “that might provide a tactical

advantage to parties with whom the reporting union . . . is

engaged or will be engaged in contract negotiations.” Labor

Organization Annual Financial Reports, 68 Fed. Reg. 58,374,

10

58,387 (Oct. 9, 2003). According to the Resolution, campaign

websites “allow non-members, including employers, access to

frequently sensitive information about the Local Unions” and

“there have been instances where employers have misused

information obtained from candidates’ websites to the detriment

of . . . Local Unions in organizing campaigns and contract

negotiations.” Resolution at 1 (JA 295). Because the

Resolution enables the Union to organize and bargain more

effectively by keeping sensitive Union information from

employers, we conclude that it “serves a legitimate and

protected purpose” under section 101(a)(2)’s proviso.

Sadlowski, 457 U.S. at 117. Moreover, in considering the

reasonableness of the Resolution, we note that it is not

viewpoint-based and that it leaves open alternative methods of

communication with the public. The Resolution simply

establishes a members-only forum for those who are eligible to

vote in union elections.

Quigley argues, however, that the Resolution is

unreasonable because the Union has not offered evidence of any

harm resulting from sensitive information being posted on

campaign websites. Section 101(a)(2) does not impose an

evidentiary burden but requires only that a union rule be

“reasonable.” Nor did the Supreme Court impose an evidentiary

burden in Sadlowski. In Sadlowski, the losing candidate for

union president “received much of his financial support from

sources outside the union.” 457 U.S. at 104. Following the

election, the union adopted the “outsider rule” “to ensure that

nonmembers do not unduly influence union affairs” and because

it “feared that officers who received campaign contributions

from nonmembers might be beholden to those individuals and

might allow their decisions to be influenced by considerations

other than the best interests of the union.” Id. at 115. While the

union produced evidence of nonmember contributions to a union

candidate, it had no evidence that union officers receiving such

contributions were “beholden to” outside contributors once

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elected. Id. Nevertheless, the Court concluded that the

“outsider rule” was reasonable. Id. at 118.

In his declaration, Giblin averred that during a Union

hearing in 2000 on whether a local union should be placed under

supervision, he “learned that employers had been monitoring

websites of [local union] candidates and were using the

information found on the websites to defeat organizing

campaigns and to improve their position at the bargaining table.”

Giblin Decl. at 5 ¶ 19 (JA 280). He also stated that a candidate

in another local union’s 2005 election had “posted the minutes

from a local union board meeting and the meeting of the trustees

of the union’s pension fund on his campaign website.” Id. at 5

¶ 20 (JA 280). Quigley argues that Giblin’s statements

regarding the first incident are “[a]t most . . . hearsay” and are

an insufficient basis for the Resolution. Appellants’ Br. at 51.

Quigley argues that the second incident involving the posting of

local union board minutes on a campaign website does not

indicate that those minutes posed any harm or contained any

sensitive Union information. Id. at 55 n.7.3 While the cited

evidence may be contested, the Union’s reliance on that

evidence as well as its concern that harm may occur are

reasonable.

Quigley also argues that the Resolution does not serve its

intended purpose and thus is not “rationally related to that

purpose.” Sadlowski, 457 U.S. at 118. First, he notes that the

Resolution does not require a Union member to password

protect websites unrelated to local union campaigns but that

nonetheless discuss union issues and does not prohibit a

candidate and his supporters from publicly distributing

3

Local Union meetings are open only to Union members in good

standing. Constitution Governing the International Union of

Operating Engineers at 84 (filed May 12, 2007) (JA 292).

12

campaign literature.4 Second, he asserts that some Union

members are also employers. Third, he asserts that employers

can easily obtain a Union member’s membership number and

thus view password protected campaign websites using the

member’s information. Quigley’s assertions merely

demonstrate that the Resolution does not cover all of the routes

by which employers can obtain sensitive union information and

that password protection is not a perfect method for preventing

employers from viewing campaign websites. To be reasonable,

however, a union rule need not perfectly achieve its intended

purpose. A union need only have a “reasonable basis for its

decision,” which, we conclude, the Union does. Sadlowski, 457

U.S. at 118. Accordingly, we conclude that the Resolution is

protected by the proviso to section 101(a)(2).

B.

Quigley also argues that the Resolution is “vague or

overbroad,” relying on extra-circuit precedent. Appellants’ Br.

at 64 (citing Mallick v. Int’l Bhd. of Elec. Workers, 644 F.2d 228

(3d Cir. 1981); Semancik v. United Mine Workers of Am. Dist.

No. 5, 466 F.2d 144 (3d Cir. 1972)). In Semancik, the Third

Circuit enjoined the union from sanctioning its members under

a union constitutional provision that the court determined was “a

threat and obstacle to free speech because it is so vague and ill-

4

Nor does the Resolution prohibit or limit in any way campaign

mail or e-mail to Union members. We also note that the Union is

required by law “to comply with all reasonable requests of any

candidate to distribute by mail or otherwise at the candidate’s expense

campaign literature in aid of such person’s candidacy to all members

in good standing of such labor organization” and to allow “[e]very

bona fide candidate . . . , once within 30 days prior to an election of a

labor organization in which he is a candidate, to inspect a list

containing the names and last known addresses of all members of the

labor organization.” 29 U.S.C. § 481(c).

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defined that whenever a union member might exercise the right

guaranteed to him under [section 101(a)(2)], he is in peril of

violating the provision.” 466 F.2d at 153-54.5 In Mallick, the

Third Circuit concluded that “[t]he right to speak one’s views

freely is so fundamental,” even in the context of section

101(a)(2), “that the spectre of punishment, or the uncertainty

created by a vaguely worded prohibition of speech,” supported

in part an injury sufficient to confer standing. 644 F.2d at 235;

see also Knight v. Int’l Longshoremen’s Ass’n, 457 F.3d 331,

338 (3d Cir. 2006) (remanding to district court to consider

“alleg[ation] that an overly broad [union] constitutional

provision violates [the] LMRDA right to free speech”).6 While

the Third Circuit has borrowed its vagueness doctrine from First

Amendment law, we are not convinced that a union member can

bring a vagueness challenge to a union rule. In Sadlowski, the

Supreme Court rejected the notion that “the scope of [section]

101(a)(2) [is] identical to the scope of the First Amendment”

and noted that “First Amendment principles may be helpful [in

applying section 101(a)(2)], although they are not controlling.”

457 U.S. at 111. The Union, however, does not argue that

5

The union constitutional provision at issue in Semancik

provided: “[A]ny member or members resorting to dishonest or

questionable practices to secure the election or defeat of any candidate

for district office shall be tried by the district executive board and

fined, suspended or expelled as the magnitude of the transgression

may warrant.” 466 F.2d at 147 (alteration in original and emphasis

added). The court found “dishonest or questionable” vague. Id. at

154.

6

The Second Circuit struck down a union constitutional provision

authorizing expulsion of a member for “advocating or encouraging

communism” because “[i]t is so broad that it cannot possibly be found

a reasonable means for preventing Communist Party infiltration of the

appellant unions.” Turner v. Air Transp. Lodge 1894, 590 F.2d 409,

410, 412 (2d Cir. 1978).

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Quigley’s vagueness challenge is improper or that a different

standard applies from that used in First Amendment law.

Assuming arguendo that the First Amendment vagueness

doctrine applies in the section 101(a)(2) context, Quigley’s

vagueness challenge fails. The Resolution applies to “all

candidates and their supporters who have set up or wish to set up

campaign websites.” Resolution at 1 (JA 295). Quigley asserts

that “supporters” and “campaign websites” are vague terms. For

example, if a union member maintained an ongoing website

discussing union issues and during an election posted a message

stating that he supported a specific candidate, would he be

required to password protect the website under the Resolution?

While “supporters” and “campaign websites” may be vague in

a few circumstances, they are clear in the vast majority of

circumstances. Cf. Hill v. Colorado, 530 U.S. 703, 733 (2000)

(“[S]peculation about possible vagueness in hypothetical

situations not before the Court will not support a facial attack on

a statute when it is surely valid ‘in the vast majority of its

intended applications.’” (quoting United States v. Raines, 362

U.S. 17, 23 (1960))). Furthermore, in a close case, a union

member may seek clarification from the Union General

President. See Trans Union Corp. v. FTC, 245 F.3d 809, 817

(D.C. Cir. 2001) (rejecting vagueness challenge in part because

administrative advisory opinion procedure existed to resolve any

ambiguity).

For the foregoing reasons, we affirm the district court’s

grant of summary judgment to the Union.

So ordered.