Opposition Brief — Freight, Construction, General Drivers, Warehousemen & Helpers Local 287 v. Brooke

No. 99-402 ter Ci 1H

In The

Supreme Court of the United States

*

FREIGHT, CONSTRUCTION, GENERAL DRIVERS,

WAREHOUSEMEN AND HELPERS LOCAL 287;

ED QUINTAL; ED DEBROCK; GEORGE NETTO;

LEE SCOGGINS,

se ,

Petitioners

BILL BROOKE; ROBERT SANDOVAI

ROBERT WILLIAMS

Respondents

+

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Ninth Circuit

6

BRIEF IN OPPOSITION

TO PETITION FOR CERTIORARI

+

CHRISTOPHER W. KatzeNBACH

Counsel of Record

KATZENBACH and KHTIKIAN

Attorneys for Respondents

1714 Stockton Street, Ste. 300

San Francisco, CA 94133-2930

lelephone: (415) 834-1778

Facsimile: (415) 834-1842

COCKLE LAW BRIEF PRINTING CO

OR CALL COLLECT (402) 3

QUESTION PRESENTED FOR REVIEW

Whether, in a case arising under the LMRDA’s Bill of

Rights in which union members had an objectively valid

basis for the belief that union funds were being misused

and were disciplined expressly because they instituted a

lawsuit for an accounting of union funds, the Ninth Cir-

cuit correctly determined that the jury’s finding that

union members did not violate union rules because they

acted for the lawful purpose of securing an accounting of

union funds made it unnecessary to decide whether the

jury was properly instructed under the standards of Mt.

Healthy City School Dist. Bd. of Educ. v. Doyle, 429 U.S. 274

(1977), for determining whether proper or improper

motives predominated in the minds of the union officials

who took the disciplinary action against the members.

ii

TABLE OF CONTENTS

Page

Question Presented for Review ..............0+0005 i

Table of Contes. « «.i0cccsscvcewe enn tt ieaseeneaeas ii

Statutory Provisions ....ccrccccstccescnvsestevusys 1

Statement of the Caee. . ois cicdivccsucseseeeseseeiees 2

A. The Union Misstates The Record In Asserting

That This Case Presents Both Permissible And

Impermissible Conduct By Respondents: The

Jury Rejected The Union’s Argument That

Respondents Engaged In Conduct For The

Impermissible Purpose Of Supporting Their

Election Cangigaey . icosccccevesstssenueuerss 2

B. The Union’s Claim That Respondents Engaged

In Conduct For Both Permissible And Imper-

missible Purposes Rests On A Presentation Of

Only The Evidence Favoring The Union’s Con-

tentions Rather Than The Contrary Evidence

The fury ActeQueG, o6scsicvicavu pees

Reasons for Denying the Petition.................. 9

A. This Petition Does Not Present A Case Involv-

ing The Enforcement Of Union Rules Or

“Mixed-Motives” Because The Jury Rejected

The Union’s Claim That Respondents Violated

Any Vnton Tee iirc iekscieceneee eee 11

B. There Is No Conflict In The Circuits As To The

Proper Standard Under Mt. Healthy In True

Mixed-Motive COONS .. é6icickciedee eee 17

- ten ae na ee

ili

TABLE OF CONTENTS - Continued

Page

C. Because The Jury Rejected The “Mixed-

Motive” Defense At Trial Pursuant To An

Instruction Offered By The Union Itself, This

Court’s Consideration Of The Scope Of A

“Mixed-Motive” Defense Under The LMRDA

Would Be Hypothetical And Could Not Alter

Pe ID NWT sis bade doveuwsbadecasses 18

shh dink n50 bb Ga 4406ds sadnkeneeedexenvecas 20

Appendix

Labor Management Reporting and Disclosure Act,

Section 501(a) (29 U.S.C. § 501(a))............... la

Labor Management Reporting and Disclosure Act,

Section 501(b) (29 U.S.C. § 501(b))............... la

Labor Management Reporting and Disclosure Act,

pecan Ger Cle U.S.C. © SFG) .. ccs ccsncccvcenss 2a

iv

TABLE OF AUTHORITIES

Page

Cases

Aircraft Mechanics v. Transport Workers Union of

America, 98 F.3d 597 (10th Cir. 1996).............. 18

Black v. Ryder/P.I.E. Nationwide, 970 F.2d 1199 (6th

CUR Beets ben venteviccearencrebsesbweevareeuaezess 18

Bradford v. Textile Workers Local 1093, 563 F.2d 1136

Ce ae Rie ok tae sesedeens tee eeececrasencoasees 17

Building Material and Dump Truck Drivers, Local 420

v. Traweek, 867 F.2d 500 (9th Cir. 1989)............. 8

Highway Truck Drivers and Helpers Local 107 v.

Cohen, 182 F.Supp. 608 (E.D.Pa), aff’d 284 F.2d

Ee Ge a, I octave tcitcerdsrevincsessetexis 6

Kuebbler v. Cleveland Lithographers & Photoengravers

Union Local 24-P, 473 F.2d 359 (6th Cir. 1973)..... 18

McKennon v. Nashville Banner Publishing Co., 513

ah Tee MME avccnreieeetess swieerseneus 14, 16, 19

Morrissey v. Curran, 423 F.2d 393 (2d Cir. 1970)....... 6

Mt. Healthy City School Dist. Bd. of Educ. v. Doyle,

ee Se ee re on bs Seba wks tees Wacewieeces passim

Petramale v. Laborers Local 17, 736 F.2d 13 (2d Cir.

1984), cert. denied, 469 U.S. 1087 (1984)........... 17

Price Waterhouse v. Hopkins, 490 U.S. 228 (1989)...... 14

Retail Clerks Union, Local 648 v. Retail Clerks Inter-

national Association, 299 F.Supp. 1012 (D.D.C.

SR sa ors lesisdacseusegs aneccigtceeunaduedes tise 14

United Steel Workers v. Sadlowski, 457 U.S. 102

SPP Nod Venekhvseesceeeh secre narwees coenereleeas 13

TABLE OF AUTHORITIES - Continued

STATUTES

Labor Management Reporting and Disclosure Act

(“LMRDA”) Section 101(a)(2) (29 U.S.C.

A MORRIE. occ ciebeaunas eae,

Labor Management Reporting and Disclosure Act

(“LMRDA”) Section 101(a)(4) (29 U.S.C.

© A icin cdc cds

Labor Management Reporting and Disclosure Act

(“LMRDA”) Section 101(a)(5) (29 U.S.C.

Fe a ee ah eal ere

Labor Management Reporting and Disclosure Act

(“LMRDA”) Section 401(g) (29 U.S.C. § 481(g))...

Labor Management Reporting and Disclosure Act

(“LMRDA”) Section 501(a) (29 U.S.C. § 501(a)) .

Labor Management Reporting and Disclosure Act

(“LMRDA”) Section 501(b) (29 U.S.C. § 501(b))

Labor Management Reporting and Disclosure Act

(“LMRDA”) Section 609 (29 U.S.C. § 529).....

REGULATIONS

Department of Labor, Election Guidelines, 29

Can OO 3. Aa

Page

. _passim

BRIEF IN OPPOSITION

TO PETITION FOR WRIT OF CERTIORARI

Respondents Bill Brooke, Robert Sandoval and

Robert Williams (hereafter “Respondents”), oppose the

Petition for Certiorari (herein the “Petition”) filed by

Petitioners Freight, Construction, Generai Drivers, Ware-

housemen & Helpers Local 287 and Ed Quintal, Ed

DeBrock, George Netto and Lee Scoggins (herein collec-

tively referred to as the “Union”).

+

STATUTORY PROVISIONS

Appendix E to the Petition reproduces the pertinent

text of Section 101(a)(2), Section 101(a)(4) and Section

101(a)(5) of the Labor Management Reporting and Dis-

closure Act (“LMRDA”) (29 U.S.C. §§ 411(a)(2), (4) and

(5)). In addition to the statutory provisions reproduced in

Appendix E to the Petition, sections 501(a), 501(b) and

609 of the LMRDA (29 U.S.C. §§ 501(a), 501(b), 529) are

relevant to consideration of this Petition. These addi-

tional statutory provisions are reproduced in Appendix A

to this Brief in Opposition.

+

STATEMENT OF THE CASE

A. The Union Misstates The Record in Asserting That

This Case Presents Both Permissible And Imper-

missible Conduct By Respondents: The Jury

Rejected The Union’s Argument That Respondents

Engaged In Conduct For The Impermissible Pur-

pose Of Supporting Their Election Candidacy.

This case grows out of internal union discipline

imposed on Respondents by their political opponents.!

Respondents were all union officers and members of the

Union’s Executive Board. Respondent Robert Sandoval

was President, Respondent Bill Brooke was Vice President

and Respondent Robert Williams was an Executive Board

member.

During 1988, Respondents - together with a fourth

member of the Executive Board (Bart Wolin)? who is not

involved in this action — became increasingly concerned

about the manner in which Mario Gullo, the Union’s

Secretary Treasurer, was handling the Union’s funds and

other assets. As a result of these concerns, Respondents,

together with the fourth Board member Wolin, instituted

a lawsuit on the Union’s behalf seeking an accounting of

Union funds by Secretary-Treasurer Gullo.

1 Prior to trial, the District Court granted summary

judgment on Respondents’ claims under section 101(a)(5),

finding that the union trial board - composed entirely of

Respondents’ political opponents — was biased against them

(Petition, Appendix C, pp. 37a-39a). The Ninth Circuit affirmed

this conclusion (Petition, Appendix A, pp. 24a-25a) and the

Union does not challenge this decision.

2 Four members of the Executive Board constituted a

majority of the Board.

After political power on the Executive Board shifted

in early 1989,3 Respondents were accused and convicted

of violating Union rules by instituting the lawsuit against

Gullo.

In support of this discipline, at trial the Union con-

tended that the lawsuit was instituted merely to support

Respondents’ candidacy in the upcoming union election

because the lawsuit’s allegations of misconduct by Gullo

were repeated in campaign literature distributed and

paid for by the anti-Gullo campaign slate which included

Respondents.* Respondents, on the other hand, testified

that they instituted the lawsuit to protect the interests of

the Union and in their capacity as union fiduciaries on

the Executive Board (RT Vol. IV, pp. 116-118, 133, 137-139,

146-147; Vol. V, pp. 131, 153-154, 210-214, Vol. VI, pp.

102-103).

The jury was presented with these competing claims.

The jury returned a verdict in Respondents’ favor on all

counts.

3 That is, Respondents plus Wolin no longer constituted a

four-member majority of the Board.

4 The Union has never contended that its rules prohibited

campaign material discussing either the lawsuit or the

misconduct of Gullo which led to the lawsuit. Rather, the Union

sought to convince the jury that the lawsuit was instituted

purely to support Respondents’ candidacy, rather than to

remedy Gullo’s misconduct, because campaign literature

thereafter referred to the lawsuit. Such weight, if any, this

inference might have was indisputably for the jury to resolve.

° “RT” refers to the Reporter’s Transcript in the initial trial.

“Exh.” Refers to the number or letter of the exhibits introduced

at the initial trial.

The trial court set this verdict aside, but the Court of

Appeals reinstated it. In a unanimous opinion, the Ninth

Circuit held that the evidence “makes clear that plaintiffs

had valid cause to believe that Gullo was mishandling

union funds” (Petition, Appendix A, p. 18a). Finding

valid cause to believe Gullo was mishandling union

funds, the Court of Appeals concluded that it was “irrele-

vant that the plaintiffs referred to the lawsuit against

Gullo in the subsequent union election campaign or that

they may have benefited politically from it. * * * When an

action is brought to recover unlawfully expended union

funds or to obtain a statutorily required accounting, a

reasonable basis for the action is sufficient, under the

LMRDA, to preclude discipline” (Petition, Appendix A,

pp. 19a-20a).

The Ninth Circuit held that giving a “mixed-motive”

instruction based on Mt. Healthy City School Dist. Bd. of

Educ. v. Doyle, 429 U.S. 274 (1977)® was erroneous because

the Union’s motive for the discipline was undisputed -

namely, it was undisputed that the discipline was based

on the filing of the lawsuit against Gullo (Petition,

Appendix A, pp. 15a-16a). Rather, the question presented

was whether Respondents were motivated merely to sup-

port their election candidacy, in violation of the unions’

rule, or were acting as union fiduciaries for the benefit of

the union as a whole (id., at pp. 16a-19a). Since the jury

6 This instruction was proposed by the Union over

Respondents’ objections (RT Vol. XI, pp. 56-58). The jury

nevertheless returned a verdict in Respondents’ favor, rejecting

this proffered defense.

had resolved the disputed issues under the other instruc-

tions and returned a verdict in Respondents’ favor, the

Ninth Circuit concluded that giving the “mixed-motive”

instruction, proposed by the Union, was harmless error

(Petition, Appendix A, pp. 20a-21a).

B. The Union’s Claim That Respondents Engaged In

Conduct For Both Permissible And Impermissible

Purposes Rests On A Presentation Of Only The

Evidence Favoring The Union’s Contentions Rather

Than The Contrary Evidence The Jury Accepted.

In presenting its Petition seeking review, the Union

presents only the evidence favorable to its assertion that

Respondents acted with an impermissible purpose to

support their election candidacy, in violation of the

Union’s rules prohibiting the use of union funds to sup-

port a candidate for union office (Petition, pp. 6-10,

19-21). The Jury did not accept this argument. The Jury

accepted the contrary evidence showing that Respon-

dents acted solely to protect the union assets in the face

of Secretary-Treasurer Gullo’s inability or unwillingness

to account for union funds under his control.

Because Respondents are defending the jury’s ver-

dict, they are entitled to have the evidence construed

most favorably to the verdict. In addressing the specific

factual assertions by the Union offered to support its

claim that Respondents acted merely to support their

election candidacy (Petition pp. 6-10), Respondents pre-

sent the evidence in that light.

1. Power of the Executive Board to hire attorneys as part

of their fiduciary obligations to the membership as a whole.

The Bylaws allocate the power to hire attorneys and

institute legal proceedings to the Executive Board (Article

XVII, Section 1(c), (d) (Exh. 39, p. 24)). The Bylaws pro-

vide that the Executive Board may “[p]rovide for the

employment and payment of attorneys,” and “[o]n behalf of

the Union, its officers, employees and members, to initi-

ate, defend, compromise, settle, arbitrate or release or to

pay the costs of any legal proceedings or actions or any

nature if, in its judgment, it shall be necessary or desir-

able to protect, preserve, or advance the interests of the

organization.” Bylaws, Article XVII, Section l(c), (d)

(emphasis supplied) (Exh. 39, p. 24).

Nothing in the Bylaws allows a membership meeting,

attended by a small fraction of the union’s entire mem-

bership, to overrule a decision by the Executive Board to

retain a lawyer to investigate misconduct affecting the

entire union (compare Petition, p. 7).”

2. The Executive Board was entitled to a copy of the

Coleman settlement that Gullo withheld. Gullo refused to

supply the Executive Board with a copy of the Syble

Coleman settlement. Although requested, neither Gullo

nor the Union’s regular attorneys (Beeson, Tayer & Bod-

ine) were able or willing to supply the Board with a copy

7 To the contrary, the Executive Board’s obligation as

fiduciaries under section 501(a) was to protect the interests of

the entire membership of the Union as a whole - including the

majority of the membership who did not attend the particular

meeting to which Gullo brought his supporters to attempt to

derail the investigation against him. See, generally, Morrissey v.

Curran, 423 F.2d 393, 399 (2d Cir. 1970); Highway Truck Drivers

and Helpers Local 107 v. Cohen, 182 F.Supp. 608, 617-18 (E.D.Pa),

aff’d 284 F.2d 162 (3d Cir. 1960).

of the written settlement agreement containing the speci-

fic terms of the settlement. Respondents expressly asked

for the documents before voting on the settlement pro-

posal but were told they had to approve the settlement

notwithstanding that neither Gullo nor the union’s attor-

ney had a copy for the Board to review (RT Vol. IV, pp.

124-125; Vol. V, pp. 147-148, 203-206). Respondents never

received a copy of the Coleman settlement from Gullo

(RT Vol. V, p. 213 lines 21-22).

The Union’s own principal witness testified that the

Executive Board was entitled to a copy of this settlement

before voting on it (RT Vol. VIII, pp. 149-150). The settle-

ment became public because it was disclosed to the mem-

bers at the following membership meeting under the

Union’s normal practice and it was the members at that

meeting, not Respondents, who began publicly question-

ing the settlement (RT Vol. V, pp. 142-144).

3. A majority of the Executive Board approved the con-

tinued investigation of Gullo and the lawsuit pursuant to the

express provisions of the Bylaws allowing actions by a majority

of the Board both at and outside of meetings. Because the

hiring of Hernandez did not induce Gullo to provide the

Executive Board with the financial and other information

that concerned the Board, the Executive Board majority

approved going ahead with the lawsuit. The Executive

Board majority signed a Verification for the Complaint

that Hernandez filed initiating the lawsuit against Gullo

for an accounting and other relief (RT Vol. IV, pp. 138-139,

Exh. 13). On the same date, the Executive Board majority

wrote the union’s regular attorneys — the Beeson, Tayer &

Bodine firm — reaffirming Herndandez’ authority (RT Vol.

IV, pp. 134-136, Exh. 12):

You do represent Local 287 on regular union

matters, but not on this matter of Mario

Gullo. ** * A majority of the Board has decided

to seek outside legal and accounting assistance

in this investigation.

Shortly after the lawsuit was filed, Gullo produced a

check for $11,748.23 made out to the Sick and Death

Benefit Fund (Petition, Appendix A, p. 11a). Gullo

explained: “We found the money in the safe” (id., p. 11a).

The Bylaws do not require the Executive Board to act

only at formal meetings (compare Petition, pp. 8-9, 19-20).

The Bylaws allow a majority of the Executive Board to act

outside of regular meetings: “On matters requiring action

by the Executive Board, when the Executive Board is not

in formal session, the Executive Board may act by tele-

gram, letter or telephone” (Article XVII, Section 5 (Exh.

39, p. 26)). The Bylaws further provide that “[s]uch action

so taken by a majority of the members of the Executive

Board shall constitute action of the Board as though the

Board were in formal session” (id.). The written approval

by the majority for the continued investigation and the

lawsuit (Exhs. 12, 13) complied with these rules.®

4. The Executive Board had the obligation to ensure that

Gullo did not violate election rules by campaigning at Fleming

Foods. During the course of the union election, Gullo and

his supporters used their official union positions to gain

® In at least one prior case, both the Teamsters Union and

the Ninth Circuit had approved actions by a Teamster Local

Union outside of formal executive board meetings when the

executive board was investigating misconduct by a secretary-

treasurer. Building Material and Dump Truck Drivers, Local 420 v.

Traweek, 867 F.2d 500, 504, 512 (9th Cir. 1989).

access to the premises of Fleming Foods - a large

employer of Union members - to campaign for their

reelection, in violation of the Union’s election rules (RT

Vol. V, pp. 129-130, Vol. VIII, p. 152). Hernandez wrote a

letter to Fleming Foods, and the problem stopped.

Again, the Union’s principal witness testified that

stopping illegal campaigning would be proper action on

behalf of the Union as a whole. He testified that, if the

executive board found out about illegal campaigning,

“they’d take steps to stop it” before the election took

place (id. pp. 153-154).9

REASONS FOR DENYING THE PETITION

Although couched as a dispute over the application

of Mt. Healthy City School Dist. Bd. of Educ. v. Dole in the

context of the LMRDA, in reality the Petition does no

more than take issue with a jury’s factual findings against

the Union on the detailed and particular facts of this case.

Respondents were all fiduciaries, with a statutory

duty under the LMRDA to protect and preserve the

union’s funds for the benefit of its whole membership.

Secretary-Treasurer Gullo’s wrongdoing and failure to

account for union funds is undisputed. A majority of the

9 In any event, Respondents had arranged with Hernandez

that he would work on a separate contingency fee basis with

them for disputes involving Fleming Foods rather than charge

the Union for legal services concerning Fleming Foods (RT Vol.

V, pp. 130-131). The jury, of course, was free to credit

Respondents’ evidence on this point and apparently did so.

10

Executive Board indisputably authorized the lawsuit

against Gullo and the investigation of Gullo by indepen-

dent attorney Hernandez to remedy Gullo’s misconduct.

Indeed, the lawsuit had the immediate benefit of the

recovery of $11,748.28 which Gullo claimed to have sud-

denly found “in the safe” (Petition, Appendix A, p. 11a).

Notwithstanding the undisputed factual basis for

Respondents’ concerns and the immediate benefit the

lawsuit brought to the union, Respondents were sub-

jected to union discipline for the institution of the lawsuit

to remedy Gullo’s failure to account for union funds — a

lawsuit that represented the very kind of fiduciary

responsibility the LMRDA seeks to encourage. This disci-

plinary action was imp se! in undisputed violation of

the due process section 0. the LMRDA,!° by Respondents’

political opponents — the supporters of Mario Gullo

against whom the lawsuit had been brought. There was

also no dispute as to the motive for the discipline — the

charge and the conviction were premised explicitly on the

institution of the lawsuit against Gullo.

This case, therefore, presents nothing more signifi-

cant than a case - all too common - where a union has

used its internal disciplinary process to retaliate against

its political opposition in order to quell dissent and pun-

ish challenge to incumbent union officials. The Teamsters

Union is no stranger to this story, as it currently operates

under a consent decree designed to afford additional

protection against the kind of abuse represented in this

case.

10 See footnote 1, supra.

11

While the Union denied wrongdoing and sought to

justify the discipline under its election rule prohibiting

use of union funds to support a candidate in union elec-

tions, the jury in this case concluded that Respondents

were the victims of exactly the type of retaliation prohib-

ited by the LMRDA and were not disciplined for violat-

ing the union’s election rule. That conclusion resolved all

the relevant issues in this case without reference to the

“mixed-motive” situation represented by Mt. Healthy. The

only question these facts presented was whether Respon-

dents instituted the lawsuit for the benefit of the union to

remedy Gullo’s misconduct or merely as a tactic to sup-

port Respondents’ candidacy in the upcoming union elec-

tion.

Nothing in the Petition shows that this case presents

anything other than a factual dispute as to Respondents’

purpose in instituting the lawsuit against Gullo, which

was resolved by the jury in Respondents’ favor. The

Petition represents nothing more than a rehash of the

factually-based contentions the Union urged upon the

jury and which the jury ultimately rejected.

A. This Petition Does Not Present A Case Involving

The Enforcement Of Union Rules Or “Mixed-

Motives” Because The Jury Rejected The Union’s

Claim That Respondents Violated Any Union Rule.

The Union rests its Petition on the idea that Respon-

dents indisputably used union funds for both permissible

and impermissible purposes in violation of union election

rules prohibiting the use of union funds to support a

candidacy in a union election (Petition, pp. 19-26). This

12

contention rests on entirely mistaken premises that

Respondents violated any union rule or that the Union

acted with “mixed-motives”. Rather, the Union’s only

motive for the discipline was the charge that Respondents

violated the union’s rules by suing Gullo. The Jury

rejected the Union’s contention that Respondents violated

its rules. As the Ninth Circuit noted - and the Union does

not dispute — Respondents were fiduciaries with a statu-

tory duty under section 501(a) and 501(b) of the LMRDA

to take action on behalf of the Union as an entity in the

face of Gullo’s misconduct (Petition, Appendix A,

17a-19a).

a. The Jury’s determination that Respondents’ pur-

pose in instituting the lawsuit was to protect the interests

of the Union and not to support their candidacy in the

union election disposes of the Union’s principal conten-

tion in this Court (Petition pp. 19-22). Thus, this case does

not present the question whether Respondents acted for

both permissible purposes - i.e., protecting the Union’s

finances — and impermissible purposes - i.e., support of

their candidacy in the upcoming union election. Instead,

this case presents only the factual issue whether Respon-

dents had valid cause to believe Gullo was misusing

union funds — as both the Jury and the Ninth Circuit

found was the case.

This Court is not the place to review factbound deter-

minations of motive and purpose, which depend on the

particular facts of this case and the credibility of Respon-

dents’ own testimony that they were acting to benefit the

union and not to support their candidacy in the upcom-

ing union election. Respondents’ purpose was disputed

and fully-litigated at trial. The Jury accepted Respondents

13

testimony that they were acting for the benefit of the

Union not to support their candidacy in the election. The

Union's characterization of Respondents’ actions as vio-

lating the union’s election rules (Petition pp. 19-22) sim-

ply repeats the arguments it made to the Jury in support

of the claim that Respondents were acting to support

their candidacy in the upcoming union election and

which the Jury rejected based on substantial contrary

evidence.

b. This case also does not raise any question as to

the Union’s right to enforce reasonable union rules under

United Steel Workers v. Sadlowski, 457 U.S. 102 (1982) (see

Petition, pp. 22-24). The Ninth Circuit did not dispute the

Union’s right to have reasonable rules governing the use

of union funds (Petition, Appendix A, p. 19a). As the

Ninth Circuit held, however, under the instructions

given, the Jury found that Respondents had not violated

any such union rule (Petition, Appendix A, pp. 20a-21a).

Whether Respondents violated any Union rule was a

disputed factual issue for the Jury to resolve.

Thus, the issue was not whether the election rule was

valid under the “two-tier” test established in Sadlowski.

The abstract validity of a rule prohibiting use of union

funds to support candidates in union elections was

acknowledged by everyone.!! The issue, resolved by the

11 Thus, the policy of section 401(g) (Petition, p. 23 n. 8) is

irrelevant. In passing, however, Respondents note that neither

this Court, the lower courts, nor the Department of Labor has

extended section 401(g) to include election-related lawsuits

brought in good faith. United Steel Workers v. Sadlowski, supra,

457 U.S. at 119 and 119-121 (part III of opinion: “The outsider

14

Jury, was whether or not Respondents in fact violated any

such rule on the particular facts of this case.

c. This case does not present any question respect-

ing the accepted framework for “mixed-motive” cases

established in Mt. Healthy City School Dist. Bd. of Educ. v.

Doyle, 429 U.S. 274 (1977) (see Petition pp. 24-26). The Mt.

Healthy test requires showing that, where two reasons for

discipline were present at the time of the decision, one

legal and one illegal, the same action would have been

taken in any event based on the independent alternative

legal reason standing alone (see Petition, pp. 24-26, 27).}?

However, as the Ninth Circuit held, Mt. Healthy was

inapplicable because the Union’s motive for the disciplin-

ary action was undisputed, not “mixed” (Petition, Appen-

dix A, pp. 15a-18a). The only claimed motive for the

rule would clearly violate [section 101(a)(4)] if it prohibited

union members from accepting financial or other support from

nonmembers for purpose of conducting campaign-related

litigation”); Retail Clerks Union, Local 648 v. Retail Clerks

International Association, 299 F.Supp. 1012, 1024 (D.D.C. 1969); 29

C.F.R. § 452.77 and n. 39.

12 In this respect, the Union seriously misstates the Mt.

Healthy test in asserting that it involves merely proof of “a

permissible basis for [the] decision” (Petition, p. 24,

subparagraph c, second paragraph, last sentence). This Court

has regularly noted that proof under Mt. Healthy requires more

than a “permissible basis” for disciplinary action:

As we have observed, “proving that the same

decision would have been justified . . . is not the same

as proving that the same decision would have been

made.” McKennon v. Nashville Banner Publishing Co.,

513 U.S. 352, 360 (1995), quoting from Price Waterhouse

v. Hopkins, 490 U.S. 228, 252 (1989).

15

discipline was the stated one — the filing of the lawsuit

against Gullo, which at trial the Union claimed was insti-

tuted to support Respondents’ candidacy in the upcom-

ing election (Petition, Appendix A, pp. 15a-16a). The only

disputed question of motive presented by the. case was

Respondents’ motive in instituting the lawsuit: namely,

were they acting for the benefit of the Union as a whole

or merely to support their election candidacy? (Petition,

Appendix A, pp. 16a, 20a-21a). If the former, Respon-

dents’ actions were protected by the LMRDA,; if the latter,

Respondents could be subject to union discipline for vio-

lating union rules (Petition, Appendix A, pp. 17a-20a).

The jury was presented with this issue on the particular

facts of this case and resolved the issue in Respondents’

favor (Petition, Appendix A, pp. 20a-21a).

Although the Petition argues that Respondents vio-

lated other union rules (Petition pp. 8-10, 19-21), Respon-

dents argued these purported violations to the Jury in

support of its claim that Respondents violated its election

rule. The Jury, as discussed above, rejected this argument.

i. Even assuming that the jury’s verdict is not dis-

positive of the issue of these other alleged violations, the

Union failed to present these alleged violations as inde-

pendent alternative grounds for disciplinary action in the

context of Mt. Healthy. These rule violations were pre-

sented to the jury only as evidence that Respondents

violated the anion’s election rule. The Union offered no

separate instruction on these other alleged rule violations

and made no argument in the court of appeals that the

jury should have been instructed on these other alleged

violations. The only rule violation on which the jury was

instructed was the rule prohibiting union officers from

16

using union funds to support their candidacy in elections

(RT Vol. XII, pp. 138-140).

ii. In addition, none of these alleged violations

could have properly supported a “mixed-motive”

defense.

The internal union charges filed against Respondents

were limited to the filing of the lawsuit (Exh. 21). Since

these alleged violations were not charged before the

Union at the time of the disciplinary action, the Union

could not have imposed discipline on these alternative

grounds as independent alternative reasons for the disci-

pline. As this court has previously recognized, the

“mixed-motive” analysis in Mt. Healthy is simply inappli-

cable to uncharged rule violations that could not have

been part of the motivation for the disciplinary action at

the time the action was taken (McKennon v. National Ban-

ner Publishing Co., supra, 513 U.S at 360).

d. Once the jury resolved the question of Respon-

dents’ motive, Ninth Circuit properly concluded that giv-

ing a further instruction on the Union's “mixed-motive”

was erroneous since, in this particular case, the Union’s

motive was not “mixed” at all. Nevertheless, since the

jury rejected this defense as well under instructions pro-

posed by the Union itself (Petition, Appendix A, pp.

20a-21a), the error was harmless, because instructing on a

13 The Mt. Healthy “mixed-motive” situation cannot arise

based on “knowledge that [the defendant] did not have” at the

time of the decision (McKennon v. National Banner Publishing Co.,

supra, 513 U.S at 360). Section 101(a)(5)(A) of the LMRDA also

prohibits all discipline unless the member was “served with

written specific charges” before the hearing.

17

“mixed-motive” affirmative defense could “only have

helped the defendants” (Petition, Appendix A, p. 21a

footnote 13). The Union does not appear to take issue

with this obvious conclusion.

In short, the only issue properly presented in this

case is the substance of the Jury’s verdict finding that

Respondents acted for the benefit of the Union as a whole

rather than merely to support their candidacy in the

upcoming union election. This presents a purely factual

question which was resolved by the jury and reviewed by

the Ninth Circuit. This purely factual issue does not

warrant further review in this Court.

B. There Is No Conflict In The Circuits As To The

Proper Standard Under Mt. Healthy In True Mixed-

Motive Cases.

Even if the Union was correct in its belief that this

case involves “mixed-motives” within the meaning of Mt.

Healthy, there is no actual conflict in the Circuits on the

application of the Mt. Healthy test (Petition, pp. 28-29).

No Circuit has held Mt. Healthy to be inapplicable to true

“mixed-motive” cases under the LMRDA. Rather, the

cases cited by the Union

(a) have held (like the Ninth Circuit below) that the

evidence did not show that a “mixed-motive” was actu-

ally present (Petramale v. Laborers Local 17, 736 F.2d 13 (2d

Cir. 1984), cert. denied, 469 U.S. 1087 (1984); Bradford v.

Textile Workers Local 1093, 563 F.2d 1136, 1143 (4th Cir.

1977)), or

18

(b) did not consider Mt. Healthy at all (Kuebbler v.

Cleveland Lithographers & Photoengravers Union Local 24-P,

473 F.2d 359 (6th Cir. 1973); Aircraft Mechanics v. Transport

Workers Union of America, 98 F.3d 597 (10th Cir. 1996)), or

(c) adapted the burden of proof allocation of Mt.

Healthy in contexts not involving “mixed-motives” (Black

v. Ryder/P.I.E. Nationwide, 970 F.2d 1199 (6th Cir. 1992)).14

No Circuit has rejected Mt. Healthy in the LMRDA

context when the facts demonstrated a true “mixed-

motive” case. Absent a conflict in the Circuits, no sub-

stantial issue is presented for review in this court as to

how Mt. Healthy should be applied in cases presenting

true “mixed-motives” for union discipline.

C. Because The Jury Rejected The “Mixed-Motive”

Defense At Trial Pursuant To An Instruction

Offered By The Union Itself, This Court’s Consider-

ation Of The Scope Of A “Mixed-Motive” Defense

Under The LMRDA Would Be Hypothetical And

Could Not Alter The Outcome Below.

Even if a conflict in the Circuits existed, any resolu-

tion of the conflict would not affect the outcome in this

case.

14 Black v. Ryder, in particular, was not a “mixed-motive”

case. Black involved the single issue whether the member had

engaged in protected conduct (i.e., handbilling to protest union

corruption) or unprotected conduct (i.e., violent intimidation of

persons coming to the union hall). Black applied Mt. Healthy

only to the extent that it imposed the burden of proof on the

union to show that it was enforcing a reasonable union rule to

protect its operations from disruption through unlawful threats

of violence.

19

In this case, the Union itself proposed the language

of the Mt. Healthy instruction given to the jury over

Respondents’ objections (RT Vol. XI, pp. 56-58). The jury

rejected the defense despite an instruction that Respon-

dents felt was overly-favorable to the Union.!° Petition,

Appendix A, p. 21a and footnote 13.

Whatever this court might decide on the “mixed-

motive” issue, the outcome of this case would be the

same. If the instruction should not have been given

because — as the Ninth Circuit found - the Union’s motive

was undisputed, not “mixed”, the instruction could only

have helped the Union by providing it a better defense

than the Union was entitled to receive. If the instruction

proposed by the Union was properly given and properly

stated the elements of a “mixed-motive” case under the

LMRDA, the jury nevertheless rejected the defense.

Finally, if the instruction misstated the elements of a

“mixed-motive” defense more favorably to the Union

than Mt. Healthy would allow, the jury’s verdict in

Respondents’ favor rendered such error harmless as well.

¢

15 As Respondents argued, the actual instruction given

(Petition, Appendix F, p. 46a) did not conform to the

appropriate “same decision” language in Mt. Healthy. Instead,

the instruction directed a defense verdict if “there was a

reasonable standard for the discipline of plaintiffs under the

circumstances of this case” (id., p. 46a, second paragraph). Such

language improperly directed a defense verdict merely on the

basis that discipline would have been justified, rather than

showing it would have been actually imposed. See McKennon v.

Nashville Banner Publishing Co., supra, 513 U.S. at 360.

20

CONCLUSION

For the reasons stated above, the Petition for Writ of

Certiorari should be denied.

Respectfully submitted,

CHRISTOPHER W. KaTZENBACH

(Counsel of Record)

KATZENBACH and KHTIKIAN

Attorneys for Respondents

lt at tr et

la

Labor Management Reporting and Disclosure Act, Sec-

tion 501(a) (29 U.S.C. § 501(a)).

The officers, agents, shop stewards, and other repre-

sentatives of a labor organization occupy positions of

trust in relation to such organization and its members as

a group. It is, therefore, the duty of each such person,

taking into account the special problems and functions of

a labor organization, to hold its money and property

solely for the benefit of the organization and its members

and to manage, invest, and expend the same in accor-

dance with its constitution and bylaws and any resolu-

tions of the governing bodies adopted thereunder, to

refrain from dealing with such organization as an adverse

party or in behalf of an adverse party in any matter

connected with his duties and from holding or acquiring

any pecuniary or personal interest which conflicts with

the interests of such organization, and to account to the

organization for any profit received by him in whatever

capacity in connection with transactions conducted by

him or under his direction on behalf of the organization.

A general exculpatory provision in the constitution and

bylaws of such a labor organization or a general exculpa-

tory resolution of a governing body purporting to relieve

and such person of liability for breach of the duties

declared by this section shall be void as against public

policy.

Labor Management Reporting and Disclosure Act, Sec-

tion 501(b) (29 U.S.C. § 501(b)).

When any officer, agent, shop steward, or representa-

tive of any labor organization is alleged to have violated

2a

the duties declared in subsection (a) and the labor organi-

zation or its governing board or officers refuse or fail to

sue or recover damages or secure an accounting or other

appropriate relief within a reasonable time after being

requested to do so by any member of the labor organiza-

tion, such member may sue such officer, agent, shop

steward, or representative in any district court of the

United States or in any State court of competent jurisdic-

tion to recover damages or secure an accounting or other

appropriate relief for the benefit of the labor organiza-

tion. No such proceeding shall be brought except upon

leave of the court obtained upon verified application and

for good cause shown, which application may be made ex

parte. The trial judge may allot a reasonable part of the

recovery in any action under this subsection to pay the

fees of counsel prosecuting the suit at the instance of the

member of the labor organization and to compensate

such member for any expenses necessarily paid or

incurred by him in connection with the litigation.

Labor Management Reporting and Disclosure Act, Sec-

tion 609 (29 U.S.C. § 529).

It shall be unlawful for any labor organization, or any

officer, agent, shop steward, or other representative of a

labor organization, or any employee thereof to fine, sus-

pend, expel, or otherwise discipline any of its members

for exercising any right to which he is entitled under the

provisions of this Act. The provisions of section 102 shall

be applicable in the enforcement of this section.