Petition for Writ of Certiorari — Davis v. United Automobile Workers of America

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041222 MAR 9 - 2008

No. 05-_

IN THE

Supreme Court of the Anited States

WARREN DAVIS, DENNIS LAPSO, ROBERT WICKLINE,

AND GREGG SHOTWELL,

Petitioners,

Vv.

UNITED AUTOMOBILE WORKERS OF AMERICA,

Respondent.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Sixth Circuit

PETITION FOR A WRIT OF CERTIORARI

RONALD J. REOSTI ELLIS BOAL

REOSTI, JAMES & SIRLIN, PC Counsel of Record

925 Ford Building 9330 Boyne City Road

615 Griswold Street Charlevoix, MI 49720

Detroit, MI 48226-3988 (231) 547-2626

(313) 962-2770

Attorneys for Petitioners

WILSON-EPES PRINTING Co., INC. — (202) 789-0096 -— WASHINGTON, D.C. 20001

® Sr oo

QUESTION PRESENTED

Whether Section 403 of the Labor-Management Reporting

and Disclosure Act preempts union members’ suit to restore

past internal geographic regions of their union to the status

quo, where claims are brought solely under the union’s

constitution and under the free-speech and equal-rights

provisions of the L.M.R.D.A., because one result of restora-

tion, among others, would be to honor the results of elections

held under the status quo.

(i)

PARTIES

All parties are listed in the caption.

TABLE OF CONTENTS

QUESTION PRESENTED...............ccccccccocecoscssececesssecees

SUPT Liaibsebseubitiescsbinanschitscantenniaininitdiensensiiasdstastsuiceres

B. Proceedings Below (In Michigan).............0..0.0.+.

i a

REASONS FOR GRANTING THE WRIT........ccccc00...

Il.

CERTIORARI SHOULD BE GRANTED TO

EXAMINE THE RELATION OF TWO

PREEMPTING FEDERAL LABOR STAT-

UTES, AND A CONFLICT WITH THE

NINTH CIRCUIT AND THIS COURT............

PETITIONERS’ CLAIMS ARE INDEPEND-

ENTLY COGNIZABLE SECTIONS 301(A)

EE, PRONE D OND GI aicccinsinenssssccoinnaveisiicisionseds

A. Section 301(a) allows suits on union

constitutions without requiring proof of

EAT ets eC ae

B. In requiring that discriminatory treatment

be shown in a claim under Section

101(a)(2), the — free-expression-of-views

Statute, the decision below conflicts with

the statute’s literal wording and the

holdings of other Circuits ...........ccccecceceseeeee

(ili)

hhh hee ee)

POTEET HEHEHE EEE TESTE TE SESE EEE EE EHEE SEES SEES SEES EEESES

TABLE OF CONTENTS—Continued

Page

C. Penalizing all the members of Region 2 by

dissolving their region because their

delegates voted for a certain candidate

violated the protection of equal election

voting rights under Section 101(a)(1).........- 22

D. Misleading the delegates about the

procedural irregularities leading up to

introduction of the amendment on the

convention floor deprived them of the right

to vote in a meaningful end informed way,

in violation of Section 101(a)(1).........eee 24

CONCLUSION..........cccccssccsssssscscossccsscccssccsssersscscsscsssosers 25

APPENDIX A: Court of Appeals’ opinion, 12/9/04 .... la

APPENDIX B: District Court’s opinion and order,

BIRT siccccctwenssossnnsdacnnnceundadensinnintoncesenenanaseannutanonninnsin 8a

APPENDIX C: District Court’s denial of reconsid-

exatiom, 1 1 AGIOS ...cccccccrcscsscccosccossccccscncssesssscsesccoescssenees l4a

APPENDIX D: Petitioners’ second amended com-

plaint, docketed 5/5/03.......ssesscseseessenesererenenetenerens Sa

APPENDIX E: Court of Appeals’ opinion in Davis v

United Automobile Workers, 392 F.3d 834 12/15/04.. 27a

APPENDIX F: Statutes and regulation involved.......... 37a

TABLE OF AUTHORITIES

CASES Page

: Allis-Chalmers v. Lueck, 471 U.S. 202 (1985)...... 12

Amalgamated Clothing Workers Rank and File

Committee v. Amalgamated Clothing Workers

of America, Philadelphia, Joint Board, 473

F.2d 1303 (CAS BF FS) cccerccesssecsssensnnsssncessscensssnce 16

Bauman vy. Presser, 117 LRRM 2393 (CADC,

1984), appeal dismissed as moot, 119 LRRM

2247 CLC. Cat, TIES) enciccnserccsesscosconsscsssanssosacesns 24

Blanchard v. Johnson, 388 F Supp 208, (N.D.

Ohio, 1974), aff’d in relevant part 532 F.2d

1074 (Gila Cie. UF TD) .ccccccsssenesssvosncecossoncsesasesoeseoss 24

Calhoon v. Harvey, 379 U.S. 134 (1964) .......... 14, 22, 23

Carpenters Local 48 v. Carpenters, 920 F.2d

1OGT (iat Clr. USD) cccoccrsscoccncrseciccscsconsonsesessensans 20

Carpenters v. Raymond, 145 L.R.R.M. 2331 (D.

Carat. 1993). ccsscrccccinscrsncannensnasencsasnonnsssssaimnenssssoce 21

Caterpillar Inc v. Williams, 482 U.S. 386 (1987)... 12

Christopher v. Safeway Stores, 644 F.2d 467 (Sth

CE FIED sivccsdicahicnsvesssbesinndicccundiecnsiciaieninimusaphions 23

Davis v. United Automobile Workers, 392 F.3d

BG CE Ce, Fie Pcitincteniasantcnineniese 10-13, 18, 27a-36a

Dornan v. Sheet Metal Workers, 640 F. Supp.

SAS (ELD. TRIM, BSG) cncnscrcscncsscscttcsnstncsscrmnanasens 21

Dunlop v. Bachowski, 421 U.S. 560 (1975).......04++ 14, 15

Electrical Workers v Hechler, 481 U.S. 851

CSET sscsniisnsinanshicskinnhincuinpuhinissndiiiindmpndasiaiaiamacsatae 12

Finnegan v. Leu, 456 U.S. 431 (1982)... 21

~ Franchise Tax Board of the State of California v.

Construction Laborers Vacation Trust for

Southern California, 463 U.S. | (1983)......00 12

Hall v. Cole, 442 US. 1 CUDTS) cacccccscarescsecascscsssons 21

Harvey vy. Hollenback, 113 F.3d 639 (6th Cir.

FIT D nccinsscitinsnneniniisivnsnshateseaaniinivaiaiinimnmmaniaii 20

TABLE OF AUTHORITIES—Continued

Henegar v. Banta, 27 F.3d 223 (6th Cir. 1994)...

Kahn vy. Hotel Restaurant Employees, 469 F.

Supp. 14 (N.D. Cal. 1977), aff'd 597 F.2d

1317 (Geta Cie. 197D)..ccccccscrecceccceccccccssscccsssscosscess

Lingle v. Norge Division of Magic Chef Inc, 486

U.S. SDD ( 19GB) nccccccccescnceccszecececcssecensaccssssesoscssees

Local 1 (ACA) Broadcast Employees v. Team-

sters, 419 F. Supp. 263 (E.D. Pa. 1976), later

decision 461 F. Supp. 961 (E.D. Pa. 1978), on

appeal, 614 F.2d 846 (3rd Cir. 1980).............000.

Local | vy. Bricklayers, 143 L.R.R.M. 2107 (D.

Diieam. 1992) .cccccccccccsccsscecereesesessccnsesonscesescsssscssees

Local 1052 Carpenters v. Los Angeles Carpen-

ters, 944 F.2d 610 (9th Cir, 1991) ........cccceeeeees

Local 2 Telephone Workers v. Telephone Work-

ers, 261 F. Supp. 433 (D. Mass. 1966) ..............

Local 20 v. Carpenters, 157 L.R.R.M. 2421

(SIDINY,, 1997) ecccoccocssccesnsccnssecccresssescccesonssasennssest

Local 575 v. Plumbers, 995 F.Supp 1151 (D.

Cake, 1996) ..cccccoccrccenceccrceescscesncssscsconcnsssnscescessones

Local No. 82, Furniture and Piano Moving,

Furniture Store Drivers v. Crowley, 467 U.S.

526 (1984), reh’g denied, 468 U.S. 1224

Mason Tenders Local 59 v. Laborers, 924 F.

Supp. 528 (S.D.N.Y. 1996).......c.cccceeseceessennenennes

Miller v. Norfolk & W. Ry. Co., No. 89-4101,

1990 WL 163302, 917 F.2d 24 (6th Cir. 1990)..

Millinery Workers Local 55/56 v. United Hatters,

495 F. Supp. 60 (E.D. Mo. 1980), aff'd, 657

F.2d 274 (table) (8th Cir. 1981) 00.0... cccceeeeeees

Millwrights Local 1079 v. Carpenters, 878 F.2d

960 (6th Cir. 1989), cert denied 493 U.S. 965

CBSE) cncsressrentecestsssestiecstentesnitiiannnaanamnmen

Page

11, 13

vil

TABLE OF AUTHORITIES—Continued

Morris v. Locomotive Engineers, 165 F. Supp.2d

GES GTA. CD BIG D cncersissccastenssincrnecsacdsmcmniniten

Navarro v. Gannon, 385 F2d 512 (2d Cir. 1967),

cert. denied 390 U.S. 989 (1968) ..0.........cceccceeeee

Negrin v. Short, {52 L.R.R.M. 2535 (S.D. N. Y.

Pile Drivers Local 34 v. Carpenters, 992 F.

Supp. 1138, 156 L.R.R.M. 2435 (N.D. Cal.

a i cecesceiipsiislictenaase dias anne ha ia

Plumbers and Pipefitters v. Plumbers and Pipe-

fitters, Local 334, 452 U.S. 615 (1981) .............

Plumbers Local 311 v. Plumbers, 130 L.R.R.M.

as NITED sstcscpheiietatintuiigiebiinntniciaiailcnanneis

Reed v. United Transp. Union, 488 U.S. 319

1994) Seiieaeetlinialaibieetalgitnaenentaaniieticibaeriatiaal tila tases

Ross v. International Brotherhood of Electrical

Workers, 513 F.2d 840 (CA9 1975)..........cc0c000

Sheet Metal Workers’ Intern. Ass'n v. Lynn, 488

A Ae EGE STE te BEN

Sheldon v. O'Callaghan, 497 F.2d 1276 (CA2,

RE Es a SE

Stage Employees Local 796 vy. Powell, 124

L.R.R.M. 2053 (N.D. Cal. 1986).......................

Stelling v. lGEW Local 1547, 587 F.2d 1379 (9th

Cir. 1978), cert denied, 442 U.S. 944 (1979).....

Trbovich v. Mine Workers, 404 U.S. 528 (1972)...

UFCW Local 911 v. UFCW, 301 F.3d 468 (6th

ae re Te

United Auto Workers Local 594 vy. United

Automobile Workers, 956 F.2d 1330 (6th Cir.

vill

~ TABLE OF AUTHORITIES-—Continued

Page

United Steelworkers of America v. Sadlowski,

457 U.S. 102 (1982), reh’g denied, 459 U.S.

a ED ccsnlscensihitinliessncinsilasidaaniinuttieiinibunilanasednmansnntes 14,22

Wirtz v. Local 153 Glass Bottle Blowers Ass'n,

es Re CO iitinricncitcinisticntoninnpsinviansantaotins 14

Wooddell v. International Broth. of Elec. Werk-

e738, Local 71, SO2 U.S. FB (IDI1) ccccccsccessescccseees 13, 20

STATUTES

Be ee Oe IB uishcitpiicnaildnninilnnabinitsnendiniennaninnans 2

Fe ise ee eiininiinannictidnianinnciniennaitnnienntnineais 9

Be ia 0 IIIT ieisietbcinicccitnsaienitininaiaiiinsinlnicnnuniongiens 5

L.M.R.A Section 1(b), 29 U.S.C. § 141(b)............ 12

L.M.R.A Section 301(A), 29 U.S.C. § 185(a)....... passim

L.M.R.D.A. Section 101(a)(1), 29 U.S.C.

OA SINE 9 P auiasicsctncinsnbnsnsenenntasonnsatatasctasdrmnannssansss passim

L.M.R.D.A. Section 101(a)(2), 29 U.S.C.

SE LED sicisinsnstninsesiitinipuniaieneurtiitinbanmnaneennnaini passim

L.M.R.D.A. Section 401, U.S.C. § 481 ................. passim

L.M.R.D.A. Section 402, 29 U.S.C. § 482 ............ passim

L.M.R.D.A. Section 403, 29 U.S.C. § 483 ............ passim

L.M.R.D.A. Section 603, 29 U.S.C. § 523(a)........ 13

Ping A Utes Be 8 OO Bi iivcictertcarnticrinneinnn 11, 13

REGULATION

ee a te cctincciiacibiaiiaiunsndaeimitibaiintnamntiimnnintanien 6

OTHER AUTHORITIES

Construction Of Freedom Of Speech And As-

sembly Provisions Of § 101(A)(2) Of Labor-

Management Reporting And Disclosure Act Of

1959 (29 U.S.C.A. § 411(A)}(2)), Included In

Bill Of Rights Of Member Of Labor Organ-

izations, 143 A.L.R. Fed 1.......... piednainscadbuiibaiieic -24

TABLE OF AUTHORITIES-——Continued

Page

Klise, Local 82, Furniture Moving Drivers v.

Crowley: A Restatement of Institutional Pow-

ers Under Titles | and IV of LMRDA, 34 Cath.

oe Mas Bs BAR 6 FED winnsinnnnnrtcccensaisanincanerntenmetes 16

IN THE

Supreme Court of the Anited States

No. OS-___

WARREN DAVIS, DENNIS LAPSO, ROBERT WICKLINE,

AND GREGG SHOTWELL,

Petitioners,

UNITED AUTOMOBILE WORKERS OF AMERICA,

Respondent.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Sixth Circuit

PETITION FOR A WRIT OF CERTIORARI

OPINIONS BELOW

The opinion of the United States Court of Appeals for the

Sixth Circuit, dated December 9, 2004, is reported at 390

F.3d 908 (6th Cir. 2004), and is reprinted as Appendix A, at

App., infra, la to 7a.

The opinion and order of the United States District Court

for the Eastern District of Michigan, Southern Division, dated

August 1, 2003, is reported at 274 F.Supp.2d 922 (E.D. Mich.

2003), and is reprinted as Appendix B, at App., infra, 8a

to 13a.

The District Court’s denial of reconsideration, dated

November 6, 2003, is reprinted as Appendix C, at App.,

infra, 14a.

Petitioners’ proposed second amended complaint, docketed

May 5, 2003, and referred to in the district court opnion, is

reprinted as Appendix D, at App., infra, 15a to 26a.

The opinion of the Court of Appeals in the companion case

from Ohio, Davis v United Automobile Workers, dated Decem-

ber 15, 2004, is reported at 392 F.3d 834 (6th Cir. 2004), and is

reprinted as Appendix E, at App., infra, 27a to 36a.

The statutes and regulation involved are reprinted as

Appendix F, at App., infra, 37a to 44a,

JURISDICTION

The court of appeals issued its opinion and judgment on

December 9, 2004. The Court’s jurisdiction is invoked under

28 U.S.C. § 1254(1).

STATUTES AND REGULATION INVOLVED

The relevant statutory provisions and regulation are

reproduced at App. infra, 37a.

STATEMENT OF THE CASE

A. Statement of Facts

The facts are taken from petitioner union members’ second

amended complaint, and from supplemental facts noted by

the court of appeals. Both are reproduced in the appendix,

but without the four exhibits referred to by the pleading.

App., infra, la, 15a.

The petitioners are members of respondent United Auto-

mobile Workers of America (“UAW” or “the union”), which

is governed by a‘constitution. The union is divided into

geographic regions nationally, each headed by an elected

director, who with an assistant supervises contract negotiation

and administration, organizing, and political ction. One of

the constitutional functions of the UAW’s conventions every

four years is to elect these directors.

ee ee

Centered in Cleveland, Region 2 covered 47 locals in 36

counties in eastern Ohio, western Pennsylvania, and West

Virginia, and represented 41,000 members.

Under the constitution in effect until 2002, except for

amendments originating in the Constitution Committee, cop-

ies of all proposed constitutional amendments were to have

been sent to the UAW at least three weeks before the con-

vention. All timely amendments were printed in a booklet

and distributed to delegates at the beginning of the conven-

tion. The amendment at issue here was not in the booklet.

Until the events of this case, the UAW had never combined

regions except where there was a vacancy in the directorship

of one or both of the regions. A combination of regions had

never occurred without pre-convention discussion among the

affected membership.

Going into the UAW convention in Las Vegas in 2002, one

of the petitioners, Warren Davis, was the director of Region

2. He had initially decided to retire at the convention and

pursue a run for Congress. But he changed his mind and

decided to run again for director. His action violated no

convention or union rule. In a meeting of delegates from

Region 2, attended by Davis and petitioner Robert Wickline,

the delegates elected him. No one appealed. The auditor

certified the result on the same day, which was June 5, 2002.

The other regions held similar elections at the same time.

No election at the convention was contested.

Later that day the senior leadership of the Administration

Caucus met. With one exception every top UAW leader

historically has been a member of this caucus. A proposal

was drafted to amend the constitution to eliminate Region 2

and distribute its members among three contiguous regions.

The Caucus produced a leaflet saying Davis had violated a

Caucus rule prohibiting Caucus members from running after

age 65, and had lied to UAW members about his intentions

and denied them an honest election. It said the union’s

Constitution Committee was outraged and would report

out an amendment to break up Region 2 and distribute it to

other regions.

Petitioner UAW members did not learn of the plan until the

next day, June 6. The convention was called to order, and the

amendment proposed. During floor debate Davis stood by

his seat on the podium with his hand up in sight of the chair.

The chair refused to recognize him. After a few speakers

the question was called. The amendment was overwhelm-

ingly approved.

After the vote, petitioner Gregg Shotwell, a delegate,

attempted to raise a point of order, saying the amendment was

untimely. The convention laughed.

The convention adjourned. Meetings were held of the

adjusted neighboring regions in which new nominations and

elections of directors occurred.’

The convention re-convened on June 6 and certified all

winning candidates. -

Since the convention, the duties and functions of the

former Region 2 director and assistant director have been

transferred to personnel in other offices, resulting in disrup-

tion to operations and in performance of the functions they

formerly handled.

In the District Court, the union conceded that “consoli-

dation would not have occurred at the 2002 convention but

for Davis’s perceived manipulation of the election process.”

It added that “the court would have to consider the role that

' In the Court of Appeals petitioners noted that the same three

individuals were elected in each of the three neighboring regions both

before and after the amendment. Petitioners’ opening brief to Court of

Appeals, p. 18.

other considerations may have played in the delegates’

decision to approve the amendment, such as administrative

efficiencies . . . and . . . potential gains to be achieved

by consolidating all UAW political activities in Ohio in a sin-

gle region.”

B. Proceedings Below (In Michigan).

Four members, the petitioners, sued in the eastern district

of Michigan in October 2002. The complaint alleged that the

UAW amended its constitution at the 2002 convention in

order to retaliate against Region 2 because it elected Davis.

The suit claimed the retaliation consisted of dissolving the

region and merging it into neighboring regions.

The suit claimed violations of Sections 101(a)(1) and (2) of

Title 1 of the Labor-Management Reporting and Disclosure

Act (“L.M.R.D.A.”), 29 U.S.C. §§ 411(a)(1) and (2), and

asked that the union’s old structure be restored. Jurisdiction

was alleged under 28 U.S.C. § 1337 and 29 U.S.C. § 401

et seq.

Without answering, the UAW moved to dismiss because

(1) the complaint allegedly failed to state a claim, and (2) the

Secretary of Labor (also referred to as the “Department of

Labor” or “DOL”) has exclusive jurisdiction of union election

claims under Sections 401-03 of Title IV of L.M.R.D.A., 29

U.S.C. §§ 481-83.

Under the scheme of Title IV, after attempting to resolve

an election complaint internally, a dissatisfied member may

complain to the Secretary of Labor concerning violations of

Section 401 and the Secretary’s implementing regulations, 29

C.F.R. Part 452. After investigating, if the Secretary finds

probable cause that a violation occurred that may have

> C.A. App. 77A-78A, R 6, UAW’s brief in support of motion to

dismiss complaint, 12/13/02, pp. 17-18, n. 12.

affected the result, he or she is to bring a civil action against

the union under Section 402. Subsection (c) lists the types of

relief the court can order, insofar as is relevant here:

the court shall declare the election, if any, to be void and

direct the conduct of a new election under supervision of

the Secretary and, so far as lawful and practicable, in

conformity with the constitution and bylaws of the labor

organization. The Secretary shall promptly certify to the

court the names of the persons elected, and the court

shall thereupon enter a decree declaring such persons to

be the officers of the labor organization.

The requirements of Title IV do not apply to the initial

selection of officers of newly merged labor organizations.’

Several times before the district court the four members

explained that they were not seeking an order installing

Davis, and they were content that the electees in the new

neighboring regions serve despite that they were elected

unfairly. Pointing to the UAW’s assertion in the motion that

it intended to dispute the validity of Davis’s election, the

members said they would not resist the UAW on that point in

the court. Instead, they said Davis would take his chances in

the internal UAW appeal procedure."

* 29 C.F.R. 452.14. App., infra, 44a. Compare Reich y. Local 843,

869 F.Supp. 1142, 1153 (D.N.J.,1994) (court rejects suggestion that

repayment of improper campaign contribution would remedy an improper

election, in part because reimbursement is not among the remedies for a

violation set forth in § 402(c)).

*C.A. App. 68A, R 6, UAW’s brief in support of motion to dismiss

complaint, 12/13/02, p 8 n 6; C.A. App. 104A, R 7, plaintiffs’ response to

UAW’s motion to dismiss, 1/6/03, p 16; C.A. App. 135A, 136A, 139A, R

15, plaintiffs’ response to UAW’s supplemental brief on motion to

dismiss, 4/3/03, pp 2, 3, 6; C.A. App. 201A, R 20, plaintiffs’ reply brief in

support of motion to file supplemented and second amended complaint,

5/30/03, p 3.

The members repeated in the Court of Appeals they had no

interest in an order validating Davis's election or invalidating

the elections in the three neighboring regions.”

By stipulation the members amended the complaint to

add a meaningful-and-informed-vote count under Section

101(a)(1). The “vote” referred to in this count was the vote to

amend the constitution, not the votes to elect candidates.

Finally, the four members moved to amend the complaint a

second time, .to add a claim under Section 301(a) and the

UAW constitution, alleging that the amendment violated the

constitution’s three-week notice rule, as well as historic union

restructuring practices. This complaint said the union had

eliminated regions in the past, but only after pre-convention

discussion among the affected membership, and only when

there was a vacancy in the directorship of at least one of the

affected regions. The union opposed the motion only on the

ground that the DOL had exclusive jurisdiction.

While the motion was pending Petitioner Davis filed a

complaint with the DOL. As in the court, he asked the DOL

to take action to rescind the union’s constitutional amend-

ment. He did not ask that he be installed as the regional

director. In the same complaint he noted that—consistent

with what he was saying to the court—he thought the DOL

had no jurisdiction to order the restructuring relief he was

requesting, and that the DOL had never ordered such relief.

He explained he was filing the complaint anyway in the event

he was mistaken about DOL jurisdiction.°

* Petitioners’ opening brief to Court of Appeals, pp 6-7, 18-20; reply

brief, pp 7, 8.

* C.A. App. 207A-O08A, R 20, plaintiffs’ reply brief in support of

motion to file supplemented and second amended complaint, attachment

2, letter, Davis to Gearhart, 5/15/03.

While these were pending, in August 2003 the district court

dismissed, citing the DOL’s exclusive jurisdiction. '

The District Court reasoned:

In essence, the complaint challenges the propriety of a

vote to amend the UAW constitution. The vote was

taken as part of an election process and resulted in a re-

run election. Despite plaintiff's characterization of the

relief sought, reinstatement of Region 2 would essen-

tially validate the results of an election already con-

ducted in which Davis was elected director. At the same

time, this court would have to invalidate the post-

amendment elections of successful candidates in the

redrawn Regions 2B, 8, and 9. Such post-election relief

must be sought exclusively with the Secretary of Labor

in accordance with 29 U.S.C. § 483. The contemplated

relief challenges an election already conducted, and thus,

the court lacks subject matter jurisdiction pursuant to the

limitations of Title IV of LMRDA.’

The court rejected the second amended complaint for the

same reason, and did not reach the union’s alternative defense

that the first two counts failed to state claims."

Three months later the DOL dismissed Davis’s complaint

on the merits. First, it noted and bypassed the threshhold

question on which petitioners seek certiorari:

Your complaint stated that you had grave doubts as to

whether the Department of Labor has jurisdiction of this

matter under Title [V of the LMRDA. Whether or not

there is jurisdiction of this matter under the LMRDA, the

Department concludes after careful investigation and

review that the LMRDA was not violated in this

instance.”

” App., infra, 1 a-12a.

* App., infra, 12a.

’ C.A. App. 223A-24A, R 27, letter, Heaney to Davis, 11/5/03.

The

following day the district court denied reconsideration

without opinion. App., infra, 14a.

On de novo review under 28 U.S.C. § 1291, the Sixth

Circuit affirmed, citing both the UAW’s grounds. It held:

Although Davis purports to rely solely on Title I, the

relief he seeks is available only under Title IV of the

LMRDA because rescission of the challenged amend-

ment would reinstate Region 2, with Davis as _ its

director, and invalidate the three subsequent elections for

director in the new regions.

Because “the substance of the claim is controlling,” we

must treat Davis’s complaint as arising under Title IV of

the LMRDA."”

Previously, the Court of Appeals said the members had no

claim anyway:

As evidence that the UAW violated his rights under Title

I, Davis points to the fact that the convention delegates

acted in contravention of the UAW Constitution by

failing to introduce the amendment to dissolve Region 2

at least three weeks in advance of the convention vote.

He also complains that potential candidates from Region

2 were given inadequate time to challenge incumbent

directors in the three reconstituted regions because elec-

tions for these positions were held on the very same day

that Region 2 was dissolved and its membership redis-

tributed. Disregarding the fact that these arguments are

equally applicable to the claim that Davis’s secret candi-

dacy for director of Region 2 also violated the UAW

Constitution and Title I of the LMRDA, the allegations

made by Davis do not establish that members of Region

2 were denied election-related privileges enjoyed by

UAW members in other regions. Absent discrimination

of this kind, Davis may not maintain an action under

Title I.

App., infra, 6a.

The Court did not examine whether the members had stated a

claim under Section 301(a)."'

Judgment was entered the same day, on December 9, 2004.

C. Ohio Proceedings.

Petitioner Davis individually began separate litigation aris-

ing out of the same UAW convention in an Ohio state court.

He sued the union and two of its officers, advancing state-law

claims of age discrimination, conspiracy to discriminate on the

basis of age, wrongful discharge, retaliation, libel, and slander.

The claims were premised on the assertion that he was

successfully elected as the Region 2 director. Unlike in the

Michigan case, the Ohio complaint alleged in terms that the

regional reorganization improperly deprived him of his rightful

office. It requested reinstatement, backpay, and damages.

The union removed the case to the district court, con-

tending among other things, as here, that the adjudication of

the claims would necessarily require a determination re-

garding the validity of the UAW election.

The Ohio district court remanded the action to the state

court after concluding that it lacked subject matter juris-

diction. The UAW appealed.

A few days after the Court of Appeals decision in the

present Michigan case, the same panel reversed with instruc-

tions to dismiss the Ohio case, relying in part on its decision

in the Michigan case.

We agree with the district court’s conclusion that the

preemptive scope of the LMRDA is narrow, but disagree

that Davis’s claims are not within that narrow scope.

Davis’s state-law claims in question, including his

requested remedy of back pay, logically hinge on his

'' App.. infra, Sa-6a.

assertion that he was lawfully elected. As the district

court in Michigan correctly concluded, claims for

postelection relief are relegated to the exclusive juris-

diction of the Secretary of Labor by the LMRDA. Davis

v. UAW, 2004 WL 2812623 (6th Cir. Dec. 9, 2004).

[App. infra, p. la] Davis's claims for age discrimination,

conspiracy, wrongful termination, and retaliation should

therefore be dismissed by the district court for lack of

subject matter jurisdiction.

In order for Davis to establish a prima facie case for libel

or slander, he must show that the delegates’ statements

regarding the impropriety of his actions in the election

were false. . . . [citing an Ohio state case] To determine

whether the statements are false, however, the validity

of the election and Davis's tactics therein must be

examined.

But this inquiry has already been conducted by the

Secretary of Labor in responding to Davis's Title IV

complaint. After acknowledging that some delegates had

“privately published and distributed a pamphlet

condemning [Davis's] stratagem and purposes,” the

Secretary nevertheless found that the delegates’ actions

at the Convention had not violated Davis's election-

related rights. Because Davis's claims for libel and

slander would necessarily require a court to revisit this

finding, these claims are also preempted by Title IV of

the LMRDA. Cf. Henegar v. Banta, 27 F.3d 223, 226-27

(6th Cir. 1994) (holding that the Railway Labor Act

“preempts state law claims based on libel and slander”

because the “court would inevitably have to interpret the

terms of the collective bargaining agreement,” a task

within the exclusive jurisdiction of the National Railroad

Adjustment Board); Miller v. Norfolk & W. Ry. Co., No.

89-4101, 1990 WL 163302, at *5 (6th Cir. Oct. 25,

1990) (unpublished) (finding libel and slander claims

preempted by the Railway Labor Act where, “[a]lthough

defamation was not an issue before the [administrative]

board,” the defamation claim was “based upon a matrix

of facts that [wa]s inextricably intertwined with the

collective bargaining agreement”).'*

Davis sought reconsideration en banc, which the Court of

Appeals denied without opinion nine days ago on February

28, 2005.

REASONS FOR GRANTING THE WRIT

I. CERTIORARI SHOULD BE GRANTED TO

EXAMINE THE RELATION OF TWO PRE-

EMPTING FEDERAL LABOR STATUTES, AND

A CONFLICT WITH THE NINTH CIRCUIT

AND THIS COURT.

Considered together, the Michigan and Ohio opinions hold

that Section 403 preempts state laws and federal laws, both.

One of the federal laws it preempts, Section 301(a), was

enacted to avoid or minimize “industrial strife.”'* Under the

doctrine of complete preemption it is itself a statute of such

“extraordinary” force, and “so powerful,” as to displace en-

tirely any state claim which is “substantially dependent on

analysis of a collective bargaining agreement.””"*

The “contracts” referred to in the cited cases were collec-

tive bargaining agreements between employers and labor

organizations. But Section 301(a) also preempts claims for

violation of “contracts” between labor organizations, that is,

'2 Davis v United Automobile Workers, 392 F.3d 834, 839-40 (6th Cir.

2004), App., infra, at 34a-36a.

'S L.M.R.A Section +4329 U.S.C. § 141(b).

'* Caterpillar Inc v Williams, 482 U.S. 386, 393-94 (1987); Franchise

Tax Board of the State of California v Construction Laborers Vacation

Trust for Southern California, 463 U.S. 1, 23-24 (1983); see also

Electrical Workers v Hechler, 481 U.S. 851, 859, n. 3 (1987); Allis-

Chalmers v. Lueck, 471 U.S. 202, 220 (1985); Lingle v. Norge Division of

Magic Chef Inc, 486 U.S. 399 (1988).

union constitutions like the one here which allocates power

among international, regional, and local labor organizations."

In holding that Section 403 preempts the Ohio state claims,

the Court of Appeals in the Ohio opinion analogized it to

cases under the Railway Labor Act, one of which noted that

“preemption under the RLA is even more pervasive [than

preemption under the Section 301(a)].”"'°

So based on the Michigan decision, the Ohio decision

held that despite its “narrow scope”'’ Section 403 is an

unusual federal statute with power of formidably complete

preemption. '*

It may be that despite all its power Section 301(a) will be

held subordinate to Section 403. Section 401(e) does say

“The election shall be conducted in accordance with the con-

stitution and bylaws of such organization insofar as they are

not inconsistent with the provisions of this subchapter.”

But despite a suggestion to that effect at one point, the

Supreme Court has never held that Section 403 preempts

Section 301(a), much less that it displaces Section 301(a) and

preempts it “completely.”

The Court has outlined the relation of Titles I and IV on

four occasions. In doing so, it has “cautioned against a literal

reading” of the “complex statutory scheme created by

Congress” in the LMRDA, and particularly in the interaction

between the two titles.'” -

'> Plumbers and Pipefitters v. Plumbers and Pipefitters, Local 334, 452

U.S. 615 (1981); Wooddell v. International Broth. of Elec. Workers, Local

71.502 U.S. 93 (1991).

'© Henegar v Banta, 27 F.3d 223, 226 (6th Cir. 1994): 45 U.S.C.

§§ 151 et seq.

” See L.M.R.D.A. Section 603, 29 U.S.C. 523(a).

'* App. infra, 35a.

"’ Local No. 82, Furniture and Piano Moving, Furniture Store Drivers

v. Crowley, 467 U.S. 526, 529, 541 (1984), reh’g denied, 468 U.S. 1224

In Calhoon v. Harvey, 379 U.S. 134 (1964), the Court

faced a pre-election challenge under Section 101(a)(1) to

several union rules related to eligibility and nomination. The

union members asked to enjoin the union from conducting the

election until the rules were revised. Finding that Section

101(a)(1) prohibits only discriminatory application of rules

and not their reasonableness, the Court said the allegations in

substance claimed only under Title IV. Therefore only the

Secretary of Labor could make them.

In Trbovich v. Mine Workers, 404 U.S. 528 (1972), a union

member sought to intervene in an election suit brought by the

Secretary. The Court allowed it, but only to support theories

advanced by the Secretary, not to advance new ones. In a

footnote the Court added that at the remedy stage a court

would not be limited to consideration of remedies proposed

by the Secretary, and there was no reason to prevent the

intervenors from assisting the court in fashioning a suitable

remedial order. 404 U.S. at 636, n. 8.

In Dunlop v. Bachowski, 421 U.S. 560 (1975), the Court

held a decision by the Secretary not to pursue court action

under Title IV was subject to limited review in the district

court under an arbitrary-and-capricious standard.

Finally, in Local No. 82, Furniture and Piano Moving,

Furniture Store Drivers v. Crowley, 467 U.S. 526 (1984),

reh’g denied, 468 U.S. 1224 (1984), the Court held an order

invalidating a union election and providing court supervi-

(1984) (“Like much federal legislation the statute was ‘the product of

conflict and compromise between strongly held and opposed views, and

its proper construction frequently requires consideration of its wording

against the background of its legislative history and in the light of the

general objective Congress sought to achieve.””) See also Wirtz v. Local

153 Glass Bottle Blowers Ass'n, 389 U.S. 463, 468 (1968), United

Steelworkers of America v. Sadlowski, 457 U.S. 102, 111 (1982), reh’g

denied, 459 U.S. 899 (1982).

NN eeeEEeee—eeEeEEee

ee WOE SE IO ER

sion of a new election was not an appropriate remedy for a

Title I violation: =~

In sum, whether suits alleging violations of Title I of the

LMRDA may properly be maintained during the course

of a union election depends upon the appropriateness of

the remedy required to eliminate the claimed statutory

violation. If the remedy sought is invalidation of the

election already being conducted with court supervision

of a new election, then union members must utilize the

remedies provided by Title IV. For less intrusive

remedies sought during an election, however, a district

tne aaa authority to order appropriate relief under

ithe 1.”

In so ruling, the Court retreated from one aspect of

Trobovich which has particular relevance to the members’

claim under Section 301(a) in this Michigan case:

Trbovich cited Calhoon . . . for the proposition that

“§ 403 prohibits union members from initiating a private

suit to set aside an election.” 404 U.S., at 531

Although this somewhat overstated our holding in

Calhoon, which was limited to the exclusivity of post-

election suits by the Secretary for violations of Title IV,

we believe that the policies supporting Congress’

decision to consolidate Title IV suits with the Secretary

are equally applicable to Title I suits that seek to “set

aside an election.”

” 467 U.S. at 550.

*! 467 U.S at 549-50 [emphasis added, footnote omitted]. Crowley also

retreated from one aspect of Bachowski, which had held “Provisions

concerning the conduct of the election itself, however, may be enforced

only according to the post-election procedures specified in 29 U.S.C.

§ 482. Section 483 is thus not a prohibition against judicial review but

simply underscores the exclusivity of the § 482 procedures in post-

election cases.” 421 U.S. at 566-56 (emphasis added). Crowley said “To

the extent that our decision today holds that district courts may award

certain Title I relief during the course of a union election, that holding

In a footnote the Court also excepted from the holding

actions that “do not directly challenge the validity of an

election already conducted.”

Mindful of Crow/ley’s admonition that “less intrusive”

remedies remain viable in suits which do not “directly”

challenge an election, the second amended complaint dis-

claims any interest in Davis’s personal fate, or in the election |

results or leadership of the three reconstituted Regions 2B, |

ek |

But the Court of Appeals foreclosed the disclaimer, saying

that regardless of these concessions Davis would be reinstated

in a restored Region 2 anyway, apparently because his

election was not appealed and was certified.

The petitioner-members accept this, though noting his

reinstatement would be only one among several other results

(effect on contract administration, organizing, and political

action) which concern the suit explicitly.

prevails over any inconsistency with the italicized sentence.” 467 U.S. at

SoU, Bs 2a

*? 467 U.S. at 541, n. 16, citing Ross v. International Brotherhood of

Electrical Workers, 513 F.2d 840 (CA9 1975) (common-law tort claim

against_individual union officer); Amalgamated Clothing Workers Rank

and File Committee v. Amalgamated Clothing Workers of America, Phila-

delphia, Joint Board, 473 F.2d 1303 (CA3 1973) (preelection suit in

which appellants asked to enjoin a nominating meeting and declare certain

election bylaws violative of Title I, and did not seek judicial relief relative

to the election, which was later completed); see also United Auto Workers

Local 594 vy. United Automobile Workers, 956 F.2d 1330, 1337, n. 2 (6th

Cir. 1992) (under Crowley, § 483 does not necessarily bar relief when the

validity of the election is not challenged “directly.”) See generally Klise,

Local 82, Furniture Moving Drivers vy. Crowley: A Restatement of

Institutional Powers Under Titles | and IV of LMRDA, 34 Cath. U. L.

Rev. 181 (1984).

** Supra, n. 4, and accompanying text. The three new elections in these

regions were not subject to Title IV. App., infra, 44a.

But that simply highlights the question whether election

matters should trump non-election matters, that is, whether

Section 403 preempts constitutional and Title I claims

completely.

Title IV never has and indeed cannot remedy an improper

union restructuring. For it is a given that the Secretary lacks

power to force the UAW to restructure itself back to the

Status quo. Without contradiction from respondent, the courts

below, or the Department of Labor, petitioners have so

asserted throughout the litigation. Searching the reported

cases under the enforcement provision of Title IV, Section

492, there is none in which the Secretary sought, or the court

granted, adjustment of the boundaries, or the constituencies.

in a union election. There is no power particularly in

this case because, as the UAW contends, see supra at n.2 and

accompanying text, the Secretary would have had to weigh

institutional non-election-related considerations, such as po-

litical action activities in Ohio. Further, as the four members

contend, she would have had to weigh disruptive non-

election-related results in the areas of organizing, contract

administration, and political action. These are areas in which

she has no special competence beyond the Court’s.

So even had the Secretary been convinced on the merits—

for instance that the amendment violated the three-week

requirement and past UAW practices—litigation would

have been futile. DOL proceedings would have ended on

that basis.

To be sure, in light of Section 402(c) (which allows the

Secretary to take action only if a violation “affected the

outcome of an election”), Congress did intend that some Title

IV violations go unremedied. But unlike the District Court.

App., infra, 11a, the Court of Appeals did not view the

dissolution of Region 2 “‘as part of an election process.”

One of the non-preempted cases which survived Crowley

was Ross vy. International Brotherhood of Electrical Workers,

513 F.2d 840 (CA9 1975). Ross, like Davis’s defamation

claims in the Ohio case, involved common law torts olleged

by a candidate against an individual union officer. According

to the plaintiff the acts interfered with advantageous financial

relations he had with the union. Noting that the Secretary

could not compensate the plaintiff for the torts and that

the complaint did not seek relief which would interfere with

the union pursuant to the election, the suit was allowed

to proceed.

As in the present case, in Ross the claims “involve[d]

different considerations, different harms and different reme-

dies.” 513 F.2d at 842. Ross is in direct conflict with the

Ohio decision, which itself flowed from the holding in the

Michigan decision.

Crowley said the district courts may order less intrusive

remedies sought during an election. Holding that a union

action touching on many subjects, only one of which was an

election, is a serious expansion of Section 403. A holding

that it displaces another federal statute enacted to avoid or

substantially minimize industrial strife, where an election was

only one of several concerns of the constitutional amendment,

where Title IV itself can afford no relief at all in the situation,

and where the suit plaintiffs are indifferent to election relief,

is on a collision course with Crowley and Ross.

Substantial questions of subject-matter jurisdiction need

clarification. This case is an appropriate vehicle with a

simple record. The Court should grant review.

Il. PETITIONERS’ CLAIMS ARE INDEPEND-

ENTLY COGNIZABLE SECTIONS 301(A) AND

101(a)(1) and (2).

Fairly included in the certiorari question are questions

whether the second amended complaint stated cognizable

er Re AR pene pa momen res

claims. The Court of Appeals said it did not state a claim

under Title I, and did not address itself to Section 301(a).

App., infra, at 6a. In this part of the Reasons, petitioners

briefly show that the law on four of their claims is conflicted.

The four petitioner-members are an aggregate of active and

retired members, both in an out of the old Region 2. No

challenge to their standing has been made. More broadly, if

successful the suit will benefit the 41,000 members in the 47

locals affected. Their interests are substantial. Due to the

ensuing geographic change critical union functions of con-

tract negotiation and administration, organizing, and political

action have been disrupted.”

Whether the claims are factually supported is not ad-

dressed. For that the Court and parties must await the union’s

answer.

A. Section 301(a) allows suits on union constitu-

tions without requiring proof of discrimination.

The second amended complaint” alleged under Section

301(a) that the amendment dissolving Region 2 was under-

taken in violation of respondent’s existing rules, practices,

and constitutional provisions governing the amendment

process.

According to the pleading, no regional dissolution had ever

occurred in this union except when one of the affected

directors was vacating the office, and then only after pre-

convention discussion among the affected membership. The

amendment violated this practice, as well as convention rules

of order, and a constitutional requirement that it be submitted

three weeks in advance for review by the Constitution

Committee, the pleading says.

“4 Second amended complaint, 9 5, 7, 8,49, App., infra, 18a, 24a.

25 :

App., infra, 15a.

In addition to the facts in the pleading, in the Court of

Appeals the members offered to prove that prior to the

convention the UAW distributed documents to members and

officers describing the three-week rule as a “deadline” and a

“cutoff date,” which was “necessary” not merely convenient

for the union; and though the UAW constitution exempts

amendments originating in the convention Constitution Com-

mittee from the three-week rule, the challenged amendment

here originated outside that committee.”°

Section 301(a) allows union members to sue directly on the

constitution, regarded as a contract.”

In numerous cases the various lower courts have enter-

tained suits which, like this one, sought to enjoin a union

restructuring under Section 301(a). Though some have

required a showing of discriminatory conduct as a pre-

requisite to relief, that was only in regard to accompanying

claims under L.M.R.D.A. Section 101(a)(1). None has

required this showing under Section 301 (a).

The Court of Appeals’ decision below said “la]bsent

discrimination of this kind, Davis may not maintain an action

under Title I.” App., infra, 6a. It overlooked that there was a

claim under Section 301(a). To the extent it may have

intended to require an allegation of discrimination as part of

any constitutional claim under Section 301 (a), it would be in

conflict with many other courts.”

°° Petitioners’ opening brief to Court of Appeals, pp. 15-16.

27 Plumbers and Pipefitters v. Plumbers and Pipefitters, Local 334, 452

U.S. 615 (1981); Wooddell v. International Broth. of Elec. Workers, Local

71, 502 U.S. 93 (1991).

8 UFCW Local 911 v. UFCW, 301 F.3d 468 (6th Cir. 2002); Harvey

vy. Hollenback, 113 F.3d 639 (6th Cir. 1997); Local 1052 Carpenters v.

Los Angeles Carpenters, 944 F.2d 610 (9th Cir. 1991); Carpenters Local

48 v. Carpenters, 920 F.2d 1047 (ist Cir. 1990); Millwrights Local 1079

v. Carpenters, 878 F.2d 960 (6th Cir. 1989), cert denied 493 U.S. 965

B. In requiring that discriminatory treatment be

shown in a claim under Section 101(a)(2), the

free-expression-of-views statute, the decision

below conflicts with the statute’s literal word-

ing and the holdings of other circuits.

Unlike Section 101(a)(1), Section 101(a)(2) is a guarantee

of free speech and expression of views. It requires no

showing that members of Region 2 were discriminated

against in the sense that they were denied election-related

privileges enjoyed by UAW members in othe regions. No

court has ever required a showing of discrimination in a case

under Section 101(a)(2). Compare Navarro v. Gannon, 385

F2d 512, 520 (2d Cir. 1967), cert. denied 390 U.S. 989 (1968)

(Section 101(a)(2)) and Calhoon v. Harvey, 379 U.S. 134,

138-39 (1964) (Section 101(a)(1)).””

(1989); Stelling v. IBEW Local 1547, 587 F.2d 1379 (9th Cir. 1978), cert

denied, 442 U.S. 944 (1979); Morris v. Locomotive Engineers, 165 F.

Supp.2d 662 (N.D. Ohio 2001); Local 575 v. Plumbers, 995 F.Supp 1151

(D. Colo. 1998); Local 20 v. Carpentérs, 157 L.R.R.M. 2421 (SDNY,

1997); Pile Drivers Local 34 v. Carpenters, 992 F. Supp. 1138, 156

L.R.R.M. 2435 (N.D. Cal. 1997); Negrin v. Short, 152 L.R.R.M. 2535

(S.D.N.Y. 1996); Mason Tenders Local 59 v. Laborers, 924 F. Supp. 528

(S.D.N.Y. 1996); Carpenters v. Raymond, 145 L.R.R.M. 2331 (D. Conn.

1993); Local | v. Bricklayers, 143 L.R.R.M. 2107 (D. Minn. 1992);

Plumbers Local 311 v. Plumbers, 130 L.R.R.M. 2063 (D. Conn. 1988);

Stage Employees Local 796 v. Powe!l, 124 L.R.R.M. 2053 (N.D. Cal.

1986); Dornan v. Sheet Metal Workers, 640 F. Supp. 418 (E.D. Mich.

1986); Millinery Workers Local 55/56 v. United Hatters, 495 F. Supp. 60

(E.D. Mo. 1980), aff'd, 657 F.2d 274 (table) (8th Cir. 1981), Kahn vy.

Hotel Restaurant Employees, 469 F. Supp. 14 (N.D. Cal. 1977), aff'd 597

F.2d 1317 (9th Cir. 1979); Local 1 (ACA) Broadcast Employees v. Team-

sters, 419 F. Supp. 263 (E.D. Pa. 1976), later decision 461 F. Supp. 961

(E.D. Pa. 1978), on appeal, 614 F.2d 846 (3rd Cir. 1980); Local 2 Tele-

phone Workers v. Telephone Workers, 261 F. Supp. 433 (D. Mass. 1966).

* Other treatments of Section 101(a)(2) in this Court are: Hall v. Cole,

412 U.S. 1 (1973) (vindication of free speech rights rendered substantial

service to union); Finnegan v. Leu, 456 U.S. 431 (1982) (Title I does not

The Region 2 delegates’ vote for Davis was in the most

literal sense an “expression at [a] meeting[] . . . [o]f views

upon candidates in an election,” for which the region’s 47

locals and 41,000 members suffered the retaliation that this

suit seeks to remedy. Accordingly a claim was stated, and

the Court of Appeals was in conflict with the noted courts on

this point.

C. Penalizing all the members of Region 2 by

dissolving their region because their delegates

voted for a certain candidate violated the

protection of equal election voting rights under

Section 101(a)(1).

Penalizing union members because their delegates voted

for a certain candidate violates rights implicit in Section

101(a)(1). Citing Calhoon, the Sixth Circuit explained in

1992:

The fact that it is reasonable for the convention to have

the final say within the union does not mean that the

restrict freedom of elected leader to choose staff whose views are

compatible); United Steelworkers of America y. Sadlowski, 457 U.S. 102

(1982), reh’g denied, 459 U.S. 899 (1982) (union may adopt rule barring

candidates from accepting campaign contributions from non-members);

Local No. 82, Furniture and Piano Moving, Furniture Store Drivers vy.

Crowley, 467 U.S. 526 (1984), reh’g denied, 468 U.S. 1224 (1984) (order

invalidating a union election and providing court supervision of a new

election is not an appropriate remedy for a Title 1 violation); Reed v.

United Transp. Union, 488 U.S. 319 (1989) (being patterned after the

First Amendment, statute’s most analogous limitation period is that for

state personal injury actions); Sheet Metal Workers’ Intern. Ass'n v. Lynn,

488 U.S. 347 (1989) (removal of elected business agent in retaliation for

statements at a meeting violated statute). See generally Construction

Of Freedom Of Speech And Assembly Provisions Of § 101(A\(2)

Of Labor-Management Reporting And Disclosure Act Of 1959 (29

US.C.A. § 411(A\(2)), Included In Bill Of Rights Of Member Of Labor

Organizations, 143 A.L.R. Fed 1.

2D RRNE SPARE He LAT RAM

convention, when it speaks for the union, can counter-

mand the directives of Congress. ...

Among the rights which Congress has secured to every

member of the UAW are “equal” voting rights. 29

U.S.C. § 41 1(a)(1). Implicit in the concept of equal

voting rights, we believe, is the notion that no union

member can be penalized or subjected to reprisal,

directly or indirectly, because he or she voted for

dissident candidates. Calhoon v. Harvey, 379 U.S. 134,

139, 85 S.Ct. 292, 295, 13 L.Ed.2d 190 (1964) (stating

that § 411(a)(1) is “a command that member and classes

of members shall not be discriminated against in their

right to nominate and vote.) It would hardly be treating

voters equally for an international union to say that the

members of locals that elected dissident candidates can

expect to see their locals saddled with election costs not

imposed on locals that elect majority candidates.*”

The reprisal in Local 594 was a requirement that a local rerun

an expensive delegate election. The reprisal in the present

case was that a region of 41,000 members was dissolved.

There is no significant difference between the two.”!

According to the pleading, Section 101(a)(1) was therefore

violated in relation to the vote for Region 2 director, and

the Court of Appeals was in conflict with its own previ-

ous decision.

” United Auto Workers Local 594 v. United Automobile Workers, 956

F.2d 1330, 1337 (6th Cir. 1992).

*" See also C hristopher v. Safeway Stores, 644 F.2d 467, 470 (Sth

Cir.1981) (because the union constitution creates a right to vote on a

contract, Section 101(a)(1) prohibits the denial to all members of the right

to vote on the contract.

D. Misleading the delegates about the procedural

irregularities leading up to introduction of the

amendment on the convention floor deprived

them of the right to vote in a meaningful and

informed way, in violation of Section 101(a)(1).

The proposed second amended complaint” alleged the

convention’s vote was not meaningful and informed because

delegates were not told of an irregularity—non-consideration

by the Constitution Committee—by which the amendment

came to the floor. Just the opposite was suggested to

them. when a member of that committee moved the amend-

ment onto the floor “on behalf” of that committee, the

pleading says.

The equal-voting-rights law is construed to protect the right

of all to vote in a meaningful and informed way, without a

showing of discrimination among members or classes of

members.”

Whether failure to inform the delegates of che procedural

irregularity rises to the level of a denial of an informed and

meaningful vote is a factual issue to be tested after the UAW

answers. For now it is sufficient to say the decision below is

in conflict with the noted courts in regard to the vote on the

amendment.

* App., infra, 1Sa.

* See e.g. Blanchard v. Johnson, 388 F Supp 208, 213-16 (ND Ohio,

1974), aff'd in relevant part 532 F2d 1074, 1078-79 (CA6, 1970);

Bauman v. Presser, 117 LRRM 2393 (CADC, 1984), appeal dismissed as

moot. 119 LRRM 2247 (CADC, 1985); Morris v. Locomotive Engineers,

165 FSupp2d 662, 666-69 (ND Ohio, 2001); Sheldon v. O'Callaghan, 497

F2d 1276, 1281-83 (CA2, 1976).

2h Hee ES ee,

~rE Fe

CONCLUSION

For the foregoing reasons, the Petition for a Writ of

Certiorary should be granted and the decision of the court

below reversed.

Respectfully submitted,

RONALD J. REOSTI ELLIS BOAL

REOSTI, JAMES & SIRLIN, PC Counsel of Record

925 Ford Building 9330 Boyne City Road

615 Griswold Street Charlevoix, MI 49720

Detroit, MI 48226-3988 (231) 547-2626

(313) 962-2770

Attorneys for Petitioners

APPENDICES

oes Shae

f a

r aoe

eke 2

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

No. 03-2580

WARREN DAVIS, DENNIS LAPSO, ROBERT WICKLINE,

AND GREGG SHOTWELL,

Plaintiffs Appellants,

UNITED AUTOMOBILE WORKERS OF AMERICA,

Defendant Appellee.

Appeal from the United States District Court

for the Eastern District of Michigan at Detroit.

No. 02-7421 1—John Feikens, District Judge

Argued: September 22, 2004

Decided and Filed: December 9, 2004

Before: KEITH, MOORE, and GILMAN, Circuit Judges.

OPINION

RONALD LEE GILMAN, Circuit Judge. Warren Davis

and three other members of the United Automobile,

Aerospace and Agricultural Implement Workers of America

(UAW) appeal the dismissal of their lawsuit challenging an

amendment made to the UAW Constitution at its June 2002

Constitutional Convention. The amendment had the effect of

setting aside Davis’s reelection as a regional director by

dissolving his region and redistributing its members among

three contiguous regions. After concluding that the plaintiffs’

request for rescission of the allegedly retz!iatory amendment

ant

was a claim for postelection relief, the district court held that

the action was barred by Title IV of the Labor-Management

Reporting and Disclosure Act (LMRDA), 29 U.S.C. §§ 481-

83 (2004). For the reasons set forth below, we AFFIRM the

judgment of the district court.

I. BACKGROUND

A. Factual background

The UAW is divided nationally into geographic regions,

with each region headed by an elected director who holds a

seat on the UAW’s governing board. Davis served for 19

years as the director of Region 2, representing the interests of

approximately 41,000 UAW members in parts of Ohio,

Pennsylvania, and West Virginia. His tenure on the UAW's

governing board ended, however, when Region 2 was dis-

solved at the UAW’s June 2002 Constitutional Convention.

The present litigation arises from actions taken at the UAW

convention following Davis’s controversial election to an-

other term as director of Region 2. Immediately following the

election, convention delegates complained that Davis had

improperly concealed his candidacy for the office in order to

prevent the development of any effective opposition. These

allegations arose because Davis had announced prior to the

convention that he intended to vacate his director’s position

in order to run for Congress in 2002. He then endorsed his

assistant director, who remained the sole candidate for his

soon-to-be-vacant position. Just before the vote at the con-

vention, however, Davis apparently had a change of heart and

arranged for his assistant to nominate him and then withdraw

from the race. This surprise move allowed Davis to win the

election unopposed.

Had Davis made public his bid for director, he would have

faced strong opposition from an unofficial group of UAW

delegates calling themselves the Administrative Caucus.

Long a member of this politically powerful group, Davis had

RR. ODS rt 6 ca PO ECPM OL Sele

she Ue Aion aha ee aah Nes el et ie A oe tee bee

pledged to abide by its informal rule that members would not

seek elective office in the UAW after reaching 65 years of

age, thus making room for new leaders. In direct con-

travention to this policy, however, Davis accepted another

term as director at age 67. Members of the Administrative

Caucus reacted the following moming by issuing a press

release that called upon the UAW convention delegates to

approve an amendment to dissolve Region 2, redistribute its

members among three neighboring regions, and convene new

elections for director in each region. That afternoon the

proffered amendment was overwhelmingly approved by the

convention delegates. The UAW successfully defended its

tactics and the validity of the new elections in proceedings

before the UAW’s internal review board and before the

United States Secretary of Labor.

B. Procedural background

Davis commenced the present litigation in the United

States District Court for the Eastern District of Michigan,

seeking rescission of the constitutional amendment and the

reinstatement of Region 2. He alleges that the UAW elim-

inated Region 2 in order to punish its delegates for having

elected him, and that such retaliation violates Title I of the

LMRDA, 29 U.S.C. §§ 411-415. Although the UAW does not

dispute that the convention delegates who voted to eliminate

Region 2 were likely “angered by what they perceived as

Davis’[s] manipulation of the electoral process,” it insists that

their actions did not violate the LMRDA.

Regardless of the merits of Davis’s claims, however, the

UAW contends that his suit must be dismissed because the

remedy sought by Davis—rescission of the allegedly retal-

latory amendment constitutes postelection relief that is

relegated to the exclusive jurisdiction of the Secretary of

Labor by Title IV of the LMRDA, 29 U.S.C. §§ 481-83. The

district court agreed. It therefore dismissed the case after

finding a lack of subject matter jurisdiction over Davis’s

claims because the Secretary of Labor was not a party to the

action as required by 29 U.S.C. § 482(b). This timely appeal

followed.

Il. ANALYSIS

A district court’s application of the LMRDA is reviewed

de novo. Argentine v. United Steelworkers of Am., 287 F.3d

476, 482 (6th Cir. 2002). In enacting the LMRDA, Congress

sought to provide “a comprehensive scheme for the regulation

of union elections.” Trbovich v. United Mine Workers of Am.,

404 U.S. 528, 531-32 (1972) (finding that the LMRDA is

Congress’s “exclusive post-election remedy” for labor union

election disputes). Where a union election has already been

conducted, Title IV of the LMRDA mandates that post-

election challenges may be brought only by the Secretary of

Labor. 29 U.S.C. § 483 (“The remedy provided by this

subchapter for challenging an election already conducted

shall be exclusive.”); see also Trbovich, 404 U.S. at 531, 536

(stating that the LMRDA “prohibits union members from

initiating a private suit to set aside an election” because

“Congress intended to prevent members from pressing claims

not thought meritorious by the Secretary”).

A union member who wishes to challenge the results of an

election under the LMRDA must therefore file a complaint

with the Secretary of Labor. 29 U.S.C. § 482(a). If the

Secretary finds probable cause to believe that a violation of

the LMRDA has occurred, the Secretary may file suit in

federal district court. 29 U.S.C. § 482(b); see Calhoon v.

Harvey 379 U.S. 134, 140 (1964). Although a disgruntled

union member may intervene in a suit for postelection relief,

the district court does not have jurisdiction to adjudicate the

claims of the private parties unless the Secretary of Labor has

instigated the action. 29 U.S.C. § 483; see Trbovich, 404 US.

at 536-37.

Davis filed a complaint with the Secretary of Labor, whose

office investigated the events surrounding the UAW con-

vention and subsequently issued a report stating that there had

been “no violation of the LMRDA.” Because there was no

probable cause finding by the Secretary, the district court -

correctly determined that Davis’s suit could not proceed

under Title IV of the LMRDA. Davis acknowledges this real-

ity, but insists that it is immaterial for the purposes of this

litigation because he seeks relief pursuant to Title I of the

LMRDA, rather than under Title IV. He argues that a rescis-

sion of the amendment dissolving Region 2 would not

invalidate the elections for director in the three reformed

regions, a result which may be accomplished only by recourse

to Title IV, but would simply invalidate a “union restruc-

turing” violative of Title I.

Title I of the LMRDA proclaims a “Bill of Rights” for

union members that guarantees them “equal rights and priv-

ileges” to nominate and vote for candidates, as well as protec-

tion from improper retaliation resulting from the exercise of

these democratic rights. 29 U.S.C. § 411. In contrast to claims

for postelection relief under Title IV, suits seeking redress for

violations of Title I may be brought by private individuals

without the approval of the Secretary of Labor. 29 U.S.C.

§ 412; see Molina v. Union de Trabajadores de Muelles y

Ramas Anexas, 762 F.2d 166, 167 (1st Cir. 1985) (“Title I is

enforceable in federal court through a private action filed by

the aggrieved union members.”’).

As evidence that the UAW violated his rights under Title I,

Davis points to the fact that the convention delegates acted in

contravention of the UAW Constitution by failing to intro-

duce the amendment to dissolve Region 2 at least three weeks

in advance of the convention vote. He also complains that

potential candidates from Region 2 were given inadequate

time to challenge incumbent directors in the three recon-

stituted regions because elections for these positions were

held on the very same day that Region 2 was dissolved and its

membership redistributed. Disregarding the fact that these

arguments are equally applicable to the claim that Davis’s

secret candidacy for director of Region 2 also violated the

UAW Constitution and Title I of the LMRDA, the allegations

made by Davis do not establish that members of Region 2

were denied election-related privileges enjoyed by UAW

members in other regions. Absent discrimination of this kind,

Davis may not maintain an action under Title I. See Calhoon

v. Harvey, 379 U.S. 134, 139 (1964) (finding that union

members were not “discriminated against” for purposes of

Title I because they were not denied a “right to vote or

nominate which the union has granted to others”).

This mismatch between the relief sought by Davis and the

protections provided by Title I exists because Title I cannot

support a cause of action that seeks to invalidate a previously

conducted union election. Local No. 82, Furniture & Piano

Moving v. Crowley, 467 U.S. 526, 541 (1984) (holding

that “the exclusivity provision included in § 403 of Title IV

plainly bars Title I relief when an individual union member

challenges the validity of an election that has already been

completed”). Although Davis purports to rely solely on Title

I, the relief he seeks is available only under Title IV of the

LMRDA because rescission of the challenged amendment

would reinstate Region 2, with Davis as its director, and

invalidate the three subsequent elections for director in the

new regions.

Because “the substance of the claim is controlling,” we

must treat Davis’s complaint as arising under Title IV of

the LMRDA. McGuire v. Grand Intl Div. of the Bhd. of

Locomotive Eng’rs, 426 F.2d 504, 508 (6th Cir.1970) (“If an

individual member could bring suit by the simple expedient

of framing a claim under Title I, where the substance of the

claim falls under Title IV, [t]he comprehensive -administra

tive and procedural provisions of Title IV would be rendered

meaningless.”). The district court was therefore correct in

holding that it lacked subject matter jurisdiction over Davis’s

claims for postelection relief in the absence of a finding of

probable cause by the Secretary of Labor.

Ill. CONCLUSION

For the reasons set forth above, we AFFIRM the judgment

of the district court.

APPENDIX B

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

Civil No. 02-74211

Hon. John Feikens

WARREN DAVIS, DENNIS LAPSO, ROBERT WICKLINE,

AND GREGG SHOTWELL,

Plaintiffs,

INTERNATIONAL UNION, UNITED AUTOMOBILE, AEROSPACE

AND AGRICULTURAL IMPLEMENT WORKERS OF AMERICA

(UAW),

Defendant.

OPINION AND ORDER

Plaintiff Warren Davis filed suit against the United Auto

Workers (UAW) challenging the legality of actions taken at a

convention held in June 2002 under the Labor-Management

Reporting and Disclosure Act (LMRDA). Defendant filed a

motion to dismiss plaintiff's complaint on the grounds that

this court lacks subject matter jurisdiction, and under 12(b)

(6), claiming that the complaint failed to state a legally cog-

nizable claim. Plaintiff filed a motion to file a second

amended complaint.

Factual Background

Plaintiff served as director of Region 2 of the UAW from

1983 until June 6, 2002, when Region 2 was dissolved at a

UAW convention in Las Vegas. One of the functions of the

convention is to elect UAW officers, including the director of

each region. Prior to the convention, plaintiff had decided to

retire and run for Congress. At the time of the convention

he was 67, and by an unwritten rule of the Administrative

Caucus, members generally did not run for office after the

age of 65.

While at the convention, Davis had a change of heart.

When he was nominated for director by the delegates of

Region 2, he did not decline the nomination, and was elected

on June 5, 2002. The following morning, the Administrative

Caucus distributed a leaflet saying that Davis had violated the

over-65 rule, lied to members about his intentions and denied

them an honest election. The leaflet also indicated that the

constitution committee was outraged, and would produce an

amendment to article 10 section 21 of the constitution to

break up Region 2 and distribute its members. Later the same

day, Davis attended a meeting of the administrative caucus,

where he was fired by the President of the UAW.

According to the UAW constitution, copies of all constitu-

tional amendments to be considered at the convention must

be submitted at least three weeks before the convention, and

then considered by a constitution committee. Article 8, § 15-

16. Despite the fact that it had not been submitted before the

convention, the amendment dissolving Region 2 was over-

whelmingly approved. Most of its former members were

added to Region 2B, which raised its membership from

49,000 to 87,000. Plaintiff claims that the UAW has never

before combined regions except where there was a vacancy in

the directorship. Amended Complaint, 4 15.

Plaintiff claims that the convention amended article 10

section 21 to retaliate against Region 2 for electing Davis,

and that such action violated 29 U.S.C. § 101(a)(1) and (2).

Both plaintiff and defendant recognize in their briefs that

plaintiff is bringing a claim under § 101 LMRDA, 29 U.S.C.

§ 411. Plaintiff seeks injunctive relief, that is, rescission of

the amendment which dissolved Region 2.

10a

Analysis

I. Rule 12(b)(6)

Defendant seeks a motion to dismiss under Fed.R.Civ.P.

12(b\(6) for failure to state a claim on which relief can be

granted. Defendant claims that plaintiff's complaint should be

dismissed because the grounds pleaded as motivation for the

convention's merger are legally insufficient under the LMRDA

to overturn the convention's decision. Plaintiff alleges that

union officials proposed a constitutional amendment at the

last minute in retaliation against Region 2 for exercising vot-

ing rights to elect Davis. In the alternative, plaintiff claims

that the vote of the convention to redraw the boundaries of

Region 2 was not meaningful and informed. Amended Com-

plaint, § 53.

This court need not reach the question of whether plaintiff

has stated a claim upon which relief can be granted under 29

U.S.C. § 411. As discussed in detail below, the complaint

must be dismissed for lack of subject matter jurisdiction.

Il. Lack of Subject Matter Jurisdiction

Defendant moves to dismiss plaintiff's claim for lack of

subject matter jurisdiction. Section 403 of Title IV of LMRDA,

29 U.S.C. § 483, provides that “[t]he remedy provided by this

title for challenging an election already conducted shall be

exclusive.” Those remedies allow for jurisdiction in the dis-

trict court only after three conditions are met:

First, union members must exhaust internal union reme-

dies. Then they must file a complaint with the Secretary

of Labor. Section 402(a), 29 U.S.C. § 482(a). Finally, if

the Secretary of Labor ‘finds probable cause to believe

that a violation . . . has occurred .. . he shall . . . bring a

civil action . . .” Section 402(b), 29 U.S.C. § 482(b).

Radio-Electronics Officers Union, Dist. 3, NAEBA, AFL-C 10

v. Radio Officers Joint Employment Committee, 811 F.Supp.

lla

IS1, 156 (S.D.N.Y. 1993). Thus, this court lacks subject mat-

ter jurisdiction over claims related to an election already

conducted, because there has been no finding of probable

cause by the Department of Labor. /d.

Courts have repeatedly held that where post-election relief

is sought, the exclusive remedy is with the Secretary of

Labor. See Molinda v. Union de Trabajadores de Muelles y

Ramas Anexas, Local 1740, UTM-ILA, 762 F.2d 166, 168 (Ist

Cir. 1985) (finding Title I claim did not “escape” the jurisdic-

tional bar of LMRDA where claim required court to address

validity of election); Wolfson v. Newspaper and Mail Deliv-

erers' Union of New York and Vicinity, 713 F.Supp. 700

(S.D.N.Y. 1989) (dismissing claim because “essence” of con-

tract dispute concerning the union’s constitution dealt with

post-election relief). It is not the way the claim is framed, but

the substance of the claim which controls whether post-elec-

tion relief is sought. McGuire v. Grand International Division

of the Brotherhood of Locomotive Engineers, 426 F.2d 504,

508 (6th Cir. 1970) (finding that a claim that election pro-

ceedures violate the constitution and by-laws of the union

constitutes a Title VI matter).

Plaintiff asserts that 29 U.S.C. § 483 is inapplicable be-

cause the complaint does not challenge an election, but raises

a claim of unlawful retaliation. However, plaintiff has not

pleaded a cause of action for discrimination in the sense that

there is no allegation that other members were given privi-

leges and voting rights which were denied to members of

Region 2. Though the amendment dissolving Region 2 indi-

rectly voided the results of the election of Davis as director of

Region 2, this is not discrimination as contemplated by Title I

of LMRDA.

In essence, the complaint challenges the propriety of a vote

to amend the UAW constitution. The vote was taken as part

of an election process and resulted in a re-run election.

Despite plaintiff's characterization of the relief sought, rein-

12a

statement of Region 2 would essentially validate the results of

an election already conducted in which Davis was elected

director. At the same time, this court would have to invalidate

the post-amendment elections of successful candidates in the

redrawn Regions 2B, 8 and 9. Such post-election relief must

be sought exclusively with the Secretary of Labor in accor-

dance with 29 U.S.C. § 483. The contemplated relief chal-

lenges an election already conducted, and thus, the court

lacks subject matter jurisdiction pursuant to the limitations of

Title IV of LMRDA. Radio, 811 F.Supp. at 155 (finding that

because relief sought would either validate the election or the

rerun election, the court lacked subject matter jurisdiction).

III. Second Amended Complaint

Plaintiff submitted a motion to file a Second Amended

Complaint. Under Fed.R.Civ.P. 15 (a), “leave [to amend] shall

be freely given when justice so requires.” However, justice

does not require leave to amend when the court finds “that the

amended complaint suffer [s] from the same infirmities as the

original complaint and thus would not withstand a motion to

dismiss . . .” Keweenaw Bay Indian Community v. State of

Michigan, 11 F.3d 1341, 1348 (6th Cir. 1993). The new claim

in plaintiff's proposed Second Amended Complaint alleges

that the convention delgates amended the UAW constitution:

without a meaningful and informed vote of the conven-

tion delegates, and in violation of existing UAW rule,

practices, and constitutional provisions governing the

convention and the amendment process.

Second Amended Complaint, § 1. However, as discussed

above, the Secretary of Labor has exclusive jurisdiction over

an election already conducted. Because any new claims re-

lated to the June 2002 election would be preempted by

LMRDA. leave to amend would be futile in this case.

AE fled 8 PSR

wet arin

. Pape DORI

Sp She EL BEEN IE IR I

13a

Conclusion

Thus, this court lacks subject matter over the case because

plaintiff's claims are preempted by the exclusive jurisdiction

of the Secretary of Labor under 29 U.S.C. § 483. Defendant’s

Motion to Dismiss is hereby GRANTED.

IT IS SO ORDERED.

Date: August 01, 2003

/s/ JOHN FEIKENS

John Feikens

United States District Judge

14a

APPENDIX C

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

. [Filed Nov. 6, 2003]

Civil No. 02-74211

Hon. John Faikens

WARREN DAVIS, et al.,

Plaintiffs,

INTERNATIONAL UNION, UNITED AUTOMOBILE,

AEROSPACE AND AGRICULTURAL IMPLEMENT

WORKERS OF AMERICA, (UAW),

Defendant.

OPINION AND ORDER

Plaintiff's motion for reconsideration is DENIED.

IT IS SO ORDERED.

/s/ John Feikens-

JOHN FEIKENS

United States District Judge

Date: Nov. 6, 2003

1Sa

APPENDIX D

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

Case No 02-74211

Hon John Feikens

Magistrate Judge R. Steven Whalen

WARREN DAVIS, DENNIS LAPSO, ROBERT WICKLINE,

AND GREGG SHOTWELL,

Plaintiffs,

UNITED AUTOMOBILE WORKERS OF AMERICA,

Defendant.

ELLIS BOAL (P10913)

9330 Boyne City Road

Charlevoix, MI 49720

231/547-2626

RONALD J. REOSTI (P19368)

Reosti James & Sirlin PC

925 Ford Building

Detroit, MI 48226-3988

313/962-2770

Counsel for Plaintiffs

Daniel Sherrick (P37171)

Michael Nicholson (P33421)

William A. Wertheimer (P26275)

8000 E Jefferson Avenue

Detroit, MI 48214

313/926-5216

Counsel for VAW

SECOND AMENDED COMPLAINT

l6a

INTRODUCTION

1. This is a complaint- for injunctive relief arising out

of undemocratic action by defendant United Auto Workers

(“UAW”) at its recent convention in Las Vegas. The con-

vention amended the UAW constitution in June 2002 to

eliminate Region 2, one of its administrative arms or subor-

dinate bodies, solely to punish the region because it had

elected plaintiff Davis as its director the day before. The

amendment was accomplished without a meaningful and

informed vote of the convention delegates, and in violation

of existing UAW rules, practices, and constitutional pro-

visions governing the convention and the amendment

process.

2. Plaintiffs Davis, Lapso, and Wickline live in Bay

Village, Parma, and Middleburgh Heights respectively in the

northern district of Ohio. Plaintiff Shotwell lives in Grand

Rapids in the western district of Michigan. Defendant is an

international labor organization headquartered in Detroit in

this district.

3. This court has federal-question jurisdiction under 28

USC 1337, and 29 USC 185(a) and 401 et seq.

BACKGROUND FACTS

4. The UAW is governed by a constitution and an ethical

practices code. Complaint exhibit 1. Among other things

they provide:

e Powers of administration are vested first in a quad-

renniel convention, then between conventions in an

international executive board (“IEB”), and finally

between IEB meetings in an international president.

(Article 7 section 1)

17a

The UAW is divided into geographic regions nation-

ally. Each region is headed by an elected director.

On the vacancy of of any regional directorship the

‘IEB is empowered under certain circumstances to

determine that the region will be combined with

another contiguous region. (Article 10 section 2 1)

One of the functions of the convention is to elect

UAW officers, including the director of each region.

(Article 8 section 2, article 10 sections | and 2 1)

A UAW object is to unite all employees under its

jurisdiction in one organization regardless of age.

(Article 2 section 2)

Members can be charged and tried and punished in

union trials for unbecoming conduct or violations of

the constitution. (Article 31)

Copies of all constitutional amendments to be con- -

sidered by the convention must be sent to the inter-

national secretary-treasurer not later than three weeks

prior to the date set for the convention. A constitu-

tion committee, selected from among convention

delegates by the IEB, is to assemble at least two

weeks before the convention start to take up all

recommendations concerning changes or additions to

the constitution submitted by international officers,

the IEB, or local unions to act thereon. The commit-

tee also has authority to originate constitutional

amendments. (Article 8 sections 15-16)

Delegates to conventions are entitled to base their

judgments and their votes on facts and considera-

tions presented to them at conventions—material

which may not have been previously within the

knowledge of themselves or the membership of the

locals which they represent. (Article 8 section 25,

article 31 section | IEB interpretation 2)

18a

e Members may appeal actions thought to violate the

constitution or ethical practices code. Appeals termi-

nate in a decision of defendant’s Public Review

Board (“PRB”) which has power to interpret the con-

stitution and ethical practices code. The PRB is a

group of impartial persons of good repute not work-

ing under defendant’s jurisdiction or employed by

defendant or its subordinate bodies. Members must

exhaust remedies and all appeals fully before going

to a civil court for redress. (Articles 32, 33, ethical

practices code)

5. Centered in Cleveland, Region 2 covered 47 locals in

36 counties in eastern Ohio, western Pennsylvania, and West

Virginia. With 41,000 members it was the smallest of the

UAW’s 12 regions. Six others ranging from 43,000 to 51,000

were nearly as small. Before the events of this case the larg-

est had 85,000 members. | |

6. Plaintiff Davis has been a UAW member since 1954.

He served in various local union offices, and in 1970 became

assistant director of Region 2. In 1983 delegates from the

region elected him as director, and he served in that post until

the region was dissolved on June 6, 2002.

7. The functions of the Region 2 director were to super-

vise contract negotiation and administration, organizing, and

political action. ?

8. A regional assistant director helped the director in all

the foregoing.

9. During the 19 years he served as director plaintiff

Davis was a member of the Administration Caucus, a long-

standing caucus or party of individuals within the union.

10. Plaintiffs Wickline and Shotwell were delegates to the

June 2002 convention in Las Vegas. Wickline was elected by

members of Local 1005 in Parma which is in Region 2. He is

19a

retired and of age 66 at the time of the convention. Shotwell

was elected by members of Local 2151 in Coopersville which

is in Region 1D. He is an active member employed at Delphi

Automotive Systems in Coopersville, and of age 51 at the

time of the convention.

11. Plaintiff Lapso is a retired member of Local 1250

located in Brook Park in Region 2, and was aged 71 at the

time of the convention.

12. With the exception of one regional director for a short

period in the late 1980’s, every member of the UAW’s IEB

has been a member of the Administration Caucus.

13. Because of this overlap, as the PRB has said, in de-

fendant UAW the lines of demarcation between the Admini-

stration Caucus and the IEB are blurred as in some national

governments, and the Administration Caucus thereéere con-

trols the union and the selection of its officials.

14. The Administration Caucus has long had a rule that

that none of its members would run for IEB office after his or

her 65th birthday. Though an Administration Caucus mem-

ber, plaintiff had never liked the mandatory retirement rule

and never voted for it.

15. The UAW has heretofore never combined regions

except where there was a vacancy in the directorship of

at least one of the regions. At the time of the convention

there were vacancies in contiguous Regions IC and ID in

Michigan.

16. The UAW has heretofore never combined regions

without pre-convention discussion among the affected

membership.

17. Being of age 67 plaintiff had initially decided to retire

from the UAW at the convention and pursue a run for

congress.

ease

20a

18. The IEB unanimously endorsed his congressional bid

in May 2002, saying he would be a forceful advocate and a

reliable fighter for working families, and that the union would

work very hard to elect him in November.

19. Before the convention the Administration Caucus and

IEB had decided not to recommend the dissolution of Region

2 even though Davis said he was retiring.

THE CONVENTION: JUNE 5, 2002

20. In February 2002, in a convention call, the UAW

summoned elected delegates from around the country to

the June 2002 convention, one of whose purposes was to

elect UAW officers, including the director of Region 2.

21. The convention adopted rules, including a provi-

sion that the rules could only be amended or suspended by

a 2/3 vote, and designating “revised Robert’s Rules of

Order” as the guide on all matters growing out of the

convention not therein provided.

22. Robert’s revised rules of order include provisions

that:

e members have a right to appear at committee

meetings and present their views on a subject

before the committee at a time scheduled by the

committee,

-e distinction is made between committee action on a

paper that is referred to the committee and a

paper that originates in the committee,

mittee members concurring in it unless it is of

little importance in which case it may be signed

by the chairperson alone, and

2la

¢ areport can only contain what was agreed to by a

majority at a noticed meeting attended by a quo-

rum, unless a meeting was impracticable and

support for the report was unanimous.

23. All amendments and resolutions timely submitted

were printed in a booklet and distributed to delegates at the

beginning of the convention.

24. At the convention Davis changed his mind and de-

cided to run for re-election as director of Region 2.

25. A convention meeting was held on June 5 attended by

convention delegates from Region 2. The primary purpose of

the meeting was to elect the director. Plaintiffs Davis and

Wickline attended. Davis and his assistant Rich Vadovski

were nominated, but Vadovski declined.

26. During debate delegates asked Davis about his career

intentions, in light of his simultaneous runs for congress and

regional director. He answered if he were elected to congress

he would resign the UAW directorship and throw his support

to Vadovski, and if he lost he would serve out a director’s full

4-year term.

27. Plaintiff's change of heart violated no convention or

union rule. The delegates enthusiastically elected him by

acclamation. No appeals were filed. The auditor certified the

result. Complaint exhibit 2.

28. Other regions held similar meetings at the same time.

Every region elected a director by acclamation. There were

no contested elections at the convention.

29. Davis and his wife went out to celebrate. On return-

ing to his room he picked up three telephone messages telling

him to attend an IEB meeting, which by the time he received

the message would have been over.

22a

30. In fact the IEB did not meet on June 5. Instead the

senior leadership of the Administration Caucus met at which

time a proposal was drafted to amend article 10 section 21

of the constitution to eliminate region 2 and distribute its

members among three other regions.

THE CONVENTION: JUNE 6, 2002

31. On June 6 at 7:00 am Davis called UAW President

Stephen Yokich. Yokich was irate about Davis’s election.

Among other things Yokich said, referring to the Administra-

tion Caucus’s over-65 rule, “If I let you do this then everyone

will want to do it.”

32. The Administration Caucus produced a leaflet saying

Davis had violated the over-65 rule, lied to members about

his intentions, and denied them an honest election. The

leaflet added that Region 2 was the union’s smallest. It said

delegates had the right to rise in outrage. It said the constitu-

tion committee was just as outraged and “will” report out an

amendment to article 10 section 21 to break up Region 2 and

distribute it to other regions. Complaint exhibit 3.

33. No member charged Davis with unbecoming conduct

or a violation of the constitution for his actions which the

Administration Caucus leaflet claimed were outrageous.

34. Some or all members of the constitution committee

met on the morning of June 6. Complaint exhibit 3 was in

the room when they arrived. The recording secretary took no

minutes. and It was an informal meeting, not an official

committee meeting.

35. Also on the morning of June 6, plaintiff Davis attended

a meeting of 300-400 members of the Administration Caucus.

He was allowed to speak from the podium, at the end of

which President Yokich fired Davis from the Administration

Caucus.

23a

36. Plaintiffs did not learn of the planned amendment

until the Administration Caucus meeting the morning of June

6 where Davis saw a copy of complaint exhibit 3. Plaintiffs

accordingly had no chance to compose, print, and distribute

a counter-leaflet opposing important and untrue statements

made in complaint exhibit 3.

37. The convention convened at 11:10 am, an hour and 10

minutes after the scheduled start time.

38. Claiming to speak on behalf of the constitution com-

mittee, one of its members moved for the amendment of

article 10 section 21 to break up Region 2 and distribute it to

contiguous regions 2B, 8, and 9. Most of the members would

go to Region 2B, centered in Toledo. Complaint exhibit 4.

39. The amendment was not printed in the booklet

distributed the first day, and was not timely submitted under

article 8 séctions 15-16.

40. During debate various arguments were advanced for

and against the amendment. The question was called and

the amendment overwhelmingly approved. Plaintiff Shotwell

attempted to raise a point of order after the vote, saying the

amendment to article 10 was not submitted timely and should

be invalidated. The convention laughed.

41. During floor debate on the amendment delegates at-

tacked Davis for violating a “commitment of honor that after

65 you won’t run again,” for acting “for his own personal

gain,” and for “treachery in high places.” Davis stood by his

seat on the podium with his hand up in sight of the chair, but

the chair refused to recognize him. Plaintiffs accordingly had

no chance to oppose important and untrue statements made

on the floor.

42. Because of the amendment the membership in Region

2B rose from 49,000 to 87,000, to become the largest region.

Region 8 added a few hundred to its former 50,000. Region 9

24a

rose from 43,000 to 45,000. This left Regions 1C and 1D as

the smallest regions with 48,000 and 47,000 members.

43. The chairman of the PRB then addressed the con-

vention.

44. The convention adjourned. Meetings were held of the

adjusted regions 2B, 8, and 9 in which new nominations and

elections of directors occurred.

45. Delegates of the former Region 2 attending these

meetings were not familiar with the records and qualifications

of the candidates from the old regions 2B, 8, and 9 who were

running in the new regions. Similarly delegates in the old

Regions 2B, 8, and 9 were not familiar with the records and

qualifications of any candidate from the former Region 2 who

might have wanted to run.

46. Again, all candidates ran unopposed and were elected

by acclamation. The convention re-convened and certified all

the winning candidates.

47. The convention did not merge Regions IC and 1D,

nor did the Administration Caucus or IEB recommend that

course.

48. The late start and the adjournment for elections

disrupted the business of the convention on June 6.

POST-CONVENTION EVENTS

49. Since the convention the duties and functions of the

former director and assistant director have been transferred to

personnel in other offices, resulting in disruption to opera-

tions and in performance of the functions they formerly

handled.

50. On June 17, 2002, Davis filed an appeal with the PRB

concerning the amendment to article 10 section 21.

51. On June 25, 2002, defendant objected to the PRB's

jurisdiction over the appeal.

_—

52. On April 15, 2003, the PRB dismissed Davis’s

appeal, holding that under the ethical practices code it

lacked jurisdiction of political issues. The PRB did not

determine Davis’s claims which were based on the UAW

provisions and practices which govern the amendment

and convention process.

CLAIMS

53. The convention amended article 10 section 21 to

retaliate against Region 2 for electing Davis.

54. The convention amended article 10 section 21 to en-

force an Administration Caucus rule against candidates

running for UAW office who are over age 65 .

55. Without factual background delegates’ right to vote

on the amendment was not meaningful and informed.

56. The amendment process violated various provi-

sions of the UAW constitution, convention rules, and con-

vention call, and UAW past practices.

57. Defendant’s action violated 29 USC 411(a)(1) and (2),

and 185(a).

26a

RELIEF SOUGHT

58. Plaintiffs ask the court to find-that-defendant’s_action

welated+thetaw-and order rescission of complaint exhibit 4,

the amendment to article 10 section 21.

59. Plaintiffs ask that the court award attorney fees, and

any other relief it thinks just.

Respectfully submitted,

ELLIS BOAL (P10913) RONALD J. REOSTI (P19368)

9330 Boyne City Road REOSTI JAMES & SIRLIN PC

Charlevoix, MI 49720 925 Ford Building

231/547-2626 (phone) Detroit, MI 48226-3988

231/547-2828 (fax) 313/962-2770 (phone)

313/962-9384 (fax)

Dated:

27a

APPENDIX E

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

No. 04-3131

WARREN DAVIS,

Plaintiff-Appellee,

INTERNATIONAL UNION, UNITED AUTOMOBILE, AEROSPACE

& AGRICULTURAL IMPLEMENT WORKERS OF AMERICA

(UAW); UAW REGION 2B; RONALD GETTELFINGER: AND

LLOYD MAHAFFEY,

Defendants-Appellants.

Appeal from the United States District Court for the

Northern District of Ohio at Cleveland.

No. 03-01311—Kathleen McDonald O’ Malley,

District Judge.

Argued: September 22, 2004

Decided and Filed: December 15, 2004

OPINION

RONALD LEE GILMAN, Circuit Judge. At the 2002

Constitutional Convention of the International Union of the

United Automobile Workers of America (UAW), convention

delegates adopted an amendment to the UAW Constitution

that dissolved one of the UAW’s geographic regions and

redistributed its members among three neighboring regions.

The amendment also had the effect of setting aside Warren

Davis’s reelection as a regional director, a result that Davis

contends was motivated by illegal age discrimination. Davis

28a

therefore sued the UAW and two of its officers, Ronald

Getteifinger and Lloyd Mahaffey, in Ohio state court, alleg-

ing state-law claims of age discrimination, conspiracy to

discriminate on the basis of age, wrongful discharge, retalia-

tion, libel, and slander.

The UAW removed the case to the United States District

Court for the Northern District of Ohio, asserting that Davis’s

state-law claims sought postelection relief and were therefore

preempted by Title IV of the federal Labor-Management

Reporting and Disclosure Act (LMRDA), 29 U.S.C. §§ 481-

83 (2004). Finding that there was no federal preemption, the

district court remanded the case to the Ohio state court. For

the reasons set forth below, we REVERSE the district court’s

remand of Davis’s state-law claims and REMAND with

instructions to dismiss the claims on the basis that they are all

precluded by the LMRDA.

I. BACKGROUND

A. Factual background

Davis served for 19 years as an elected member of the

governing board of the JAW. After deciding to run for

Congress in 2002, Davis announced his intention to vacate his

office in the UAW and endorsed his assistant director for his

soon-to-be-vacant position. The election for the office, for

which Davis’s assistant was the sole candidate, was held

at the UAW’s Constitutional Convention in June of 2002.

Due to an apparent last-minute change of heart, however,

Davis arranged for his assistant to nominate Davis and then

withdraw from the race, resulting in Davis winning the

election unopposed.

During his many years of service with the UAW, Davis

had been part of an unofficial caucus of politically powerful

members who adhered to an informal agreement not to seek

elective office after reaching 65 years of age. Angered by

29a

Davis’s surprise tactics at the convention and his acceptance

of an elected position at the age of 67, several members of the

unofficial caucus issued a press release calling upon the

UAW convention delegates to eliminate Davis’s region,

redistribute its members among three other regions, and hold

new elections. This proposal was adopted by the UAW

Cor.stitutional Convention, which promptly dissolved Davis’s

region the day after his reelection.

B. Procedural background

Davis sued the UAW in the United States District Court for

the Eastern District of Michigan, alleging a number of federal

claims related to the UAW’s elimination of his region and the

resulting termination of his elected office. Davis v. UAW, 274

F. Supp. 2d 922 (E.D. Mich. 2003). The court dismissed the

case after finding that it lacked subject matter jurisdiction

over Davis’s election-related claims because there had been

no finding of probable cause by the Secretary of Labor as

required by Title IV of the LMRDA, 29 U.S.C. §§ 481-83.

The Michigan district court’s dismissal of Davis’s case was

upheld by this court on appeal. Davis v. UAW, 2004 WL

2812623 (6th Cir. Dec. 9, 2004).

In the present action, Davis has sued the UAW and two of

its officers in Ohio state court, advancing state-law claims of

age discrim nation, conspiracy to discriminate on the basis of

age, wrongful discharge, retaliation, libel, and slander, all

arising out of the events at the Convention. These state-law

Causes of action are premised on the assertion in his com-

plaint that he “was successfully elected as Director” at the

UAW Convention and that the UAW’s subsequent actions in

reorganizing his region improperly deprived him of his

rightful office.

The UAW removed the case to the district court, offering

two separate grounds in support of removal. First, the UAW

contended that, in deciding Davis’s state-law claims, the court

30a

would be required to interpret the UAW Constitution, thus

making the action completely preempted by the Labor

Management Relations Act (LMRA), 29 U.S.C. § 185 (2004).

Second, the UAW asserted that the adjudication of Davis's

state-law claims would necessarily require a determination

regarding the validity of the UAW election, an exclusively

federal question under Title IV of the LMRDA.

The district court remanded the action to the state court

after concluding that it lacked subject matter jurisdiction over

the case. In so doing, it found that the UAW’s federal

preemption claims based on the LMRA were without merit, a

decision that the UAW has not challenged on appeal. The

district court also rejected the UAW’s contention that Davis’s

state-law claims were preempted by Title IV of the LMRDA,

Causing it to remand the case back to the state trial court. This

timely appeal followed.

ll. ANALYSIS

A. Jurisdiction to review the district court’s remand order

A threshold question in this case is whether appellate

jurisdiction exists to review the remand order of the district

court. As a general rule, remand orders constitute final

judgments for purposes of federal appellate jurisdiction and

may be reviewed unless some independent bar to appellate

review exists. Quakenbush vy. Allstate Ins. Co., 517 U.S. 706,

712 (1996) (establishing that remand orders are “immediately

appealable under §1291 because they conclusively determine

a disputed question that is completely separate from the

merits of the action’’) (quotation marks omitted).

Davis contends that we are barred by 28 U.S.C. § 1447(d)

from hearing the UAW’s appeal from the district court’s

remand order. Section 1447(d) states that “[a]n order remand-

ing a case to the State court from which it was removed is not

reviewable on appeal or otherwise . . . .”. Despite the sweep-

ing language of this section, however, “[t]he Supreme Court

3la

stated long ago . . . that the § 1447(d) proscription is not as

broad as it seems.” Baldridge v. Kentucky-Ohio Trans., Inc..

983 F.2d 1341, 1343 (6th Cir, 1993).

One significant limitation on the reach of § 1447(d) was

explored by this court in Long v. Bando Manufacturing of

America, Inc., 201 F.3d 754 (6th Cir. 2000), where appellate

review of a remand order was sought. Although acknowl-

edging that “the plain language of 28 U.S.C. § 1447(d) sug-

gests that remand orders concerning cases removed pursuant

to 28 U.S.C. § 1441 are never reviewable,” Long, 201 F.3d at

758, this court concluded that the Supreme Court’s ruling in

Thermtron Products, Inc. v. Hermansdorfer, 423 U.S. 336

(1976), dictated that “§§ 1447(c) and (d) must be read

together... .” Long, 201 F.3d at 758. Section 1447(c) directs

the district court to remand a removed case “[i]f at any time

before final judgment it appears that the district court lacks

subject matter jurisdiction... .” After reading § 1447(d) in

conjunction with (c), the court in Long concluded “that

§ 1447(d) prohibits review only of remand orders issued

pursuant te a finding, under § 1447(c), that the district court

lacked subject matter jurisdiction.” 201 F.3d at 758.

In determining “the nature and scope of’ remand under

§ 1447(c), this court has “interpreted that provision as neces-

sarily tied to a temporal reference point, namely, the time of

removal.” Van Meter v. State Farm Fire & Cas. Co., | F.3d

445, 450 (6th Cir. 1993). For a case to be deemed remanded

pursuant to § 1447(c), the district court must find that subject

matter jurisdiction was lacking at the time of removal and

then remand on that basis; otherwise, § 1447(d) will not

prohibit appellate review of the district court’s remand order.

See First Nat ‘] Bank of Pulaski vy. Curry, 301 F.3d 456, 460

(6th Cir. 2002) (stating that “§ 1447(d) means only that a

remand order is unreviewable on appeal when the case was

remanded based on the district court’s conclusion that it

lacked subject matter jurisdiction over the removed case at

32a

the time of removal’) (emphasis in original). Where a district

court had proper jurisdiction at the time of removal, but

events occurring after removal make remand to the state

courts appropriate, § 1447(d) does not bar appellate review

of the district court’s remand order. See Letherer v. Alger

Group, L.L. C., 328 F.3d 262 (6th Cir. 2003) (exercising

appellate review where the district court remanded after

concluding that a stipulation between the parties had obviated

the need to address the federal question); First Nat'l Bank of

Pulaski, 301 F.3d at 459 (reviewing a remand order where the

district court had resolved the federal claims and then

remanded the case after finding that it “lacked jurisdiction to

adjudicate the remaining state claims”).

We conclude that § 1447(d) does not bar our appellate

review of the remand order in the present case because the

district court possessed subject matter jurisdiction at the time

of removal. The UAW removed this case to the district court.

arguing that there was federal question jurisdiction over

Davis’s claim for reinstatement because the claim constituted

a request for postelection relief under the exclusive juris-

diction of the LMRDA. Only after finding that Davis had

“concede[d] that the remedy of reinstatement [wa]s not

available to him’ did the district court conclude that the case

must be remanded because subject matter jurisdiction had

been lost. The district court found that Davis had expressed

his intent to abandon this claim in his memorandum

supporting his remand motion, which was filed over a month

after the case was removed from the state court.

On this point the district court may have been mistaken,

however, because Davis did not amend his complaint to

remove his claim for reinstatement and has made clear his

intention to preserve the claim. Regardless, the district court

plainly relied on Davis’s alleged concession in remanding

the case, finding that it “goes a long way toward mooting

the defendants’ argument” of preemption by the LMRDA.

33a

Because the district court remanded this case only after

finding that a post-removal event had deprived it of subject

matter jurisdiction, we may exercise appellate jurisdiction

over the district court’s remand order. See First Nat’l Bank of

Pulaski, 301 F.3d at 460 (stating that “ta remand order is

reviewable on appeal when the district court concludes that

the action was properly removed but that the court lost

subject matter jurisdiction at some point post-removal’’).

B. Federal preemption by Title IV of the LMRDA

1. Davis's state-law claims for age discrimination, con-

spiracy, wrongful termination, and retaliation

The UAW contends that remand was improper because

Davis’s complaint raised exclusively federal questions re-

garding the validity of the union election, the UAW’s tactics

therein, and the appropriateness of Davis’s reinstatement as a

remedy. Specifically, the UAW argues that Davis’s claims of

age discrimination, conspiracy, wrongful termination, and

retaliation all seek postelection relief. Title IV of the LARDA

mandates that challenges to a previously conducted union

election may only be brought by the Secretary of Labor. 29

U.S.C. § 483; Trbovich v. United Mine Workers, 404 U.S.

528, 533 (1972).

The district court’s application of the LMRDA is reviewed

de novo. Argentine v. United Steel Workers, AFL-CIO, 287

F.3d 476, 482 (6th Cir. 2002). In remanding the present

action, the district court concluded that Davis’s claims were

not preempted by the LMRDA because the _indisput-

ably federal questions of “whether Davis was elected” and

“whether the defendants eliminated Davis’s position” need

not be answered in order to adjudicate Davis’s claims. We

respectfully disagree. For instance, it is difficult to imagine

how the state court could adjudicate whether Davis was

wrongfully terminated without first finding that he held a

position in the UAW. This apparent difficulty is confirmed by

34a

the fact that the district court felt compelled to address the

validity of the UAW election in its remand order, noting that

“the Union does not seriously assert that Davis was not

elected” and that “the defendants have never denied (and

have no basis for denying) that Davis was elected pursuant to

a regular and orderly process provided for under the Union

Constitution.” To the contrary, the UAW vigorously contests

the validity of Davis’s election.

We agree with the district court’s conclusion that the

preemptive scope of the LMRDA is narrow, but disagree that

Davis’s claims are not within that narrow scope. For example,

the district court held that Davis’s request for damages in the

form of back pay “would not necessarily imply, as defendants

assert, that one or more of the Union’s election results were

invalid.” But the cases relied upon by the district court do no

more than support the proposition that the LMRDA permits

an employee to file an age discrimination claim for back

wages when improperly discharged by the union; they offer

no authority for the court’s holding that an employee is not

preempted when filing a similar claim in the context of an

allegedly unfair union election.

Conversely, the two other courts that have addressed this

issue in the context of a union election have held that the

LMRDA preempts such a claim because “[p]laintiffs can only

prevail on... the claim for back pay|}{ if the court determines

that the election was improper.” Calciano v. United Bhd. of

Carpenters & Joiners, No. 92-5715, 1993 WL 138827 at *4

(S.D.N.Y. Apr. 23, 1993); see also Bermingham v. Castro,

No. 98-15859, 1999 WL 644342 at *2 (9th Cir. Aug. 24,

1999) (holding that damages in the form of “lost income .. .

effectively challenge the validity of the election already

conducted, which is an area in which Title IV provides the

exclusive remedy’).

Davis’s state-law claims in question, including his re-

quested remedy of back pay, logically hinge on his assertion

35a

that he was lawfully elected. As the district court in Michigan

correctly concluded, claims for postelection relief are

relegated to the exclusive jurisdiction of the Secretary of

Labor by the LMRDA. Davis v. UAW, 2004 WL 2812623

(6th Cir. Dec. 9, 2004). Davis’s claims for age discrimination,

conspiracy, wrongful termination, and retaliation should

therefore be dismissed by the district court for lack of subject

matter jurisdiction.

2. Davis ‘s state-law claims for libel and slander

Davis’s remaining causes of action for libel and slander

arise from a press release issued at the UAW Convention,

wherein certain delegates alleged that Davis lied about his

plans for retirement and employed an “immoral, deliberate,

and fraudulent scheme to deny an honest election to the

membership.” Similar sentiments were also vocalized by

some of the delegates shortly after the election.

In order for Davis to establish a prima facie case for libel

or slander, he must show that the delegates’ statements

regarding the impropriety of his actions in the election were

false. See Celebrezze v. Dayton Newspapers, Inc., 535 N.E.2d

755, 759 (Ohio Ct. App. 1988) (holding that falsity is an

essential element of an Ohio common law defamation claim).

To determine whether the statements are false, however, the

validity of the election and Davis’s tactics therein must

be examined.

But this inquiry has already been conducted by the

Secretary of Labor in responding to Davis’s Title IV

complaint. After acknowledging that some delegates had

“privately published and distributed a pamphlet condemning

[Davis's] stratagem and purposes,” the Secretary nevertheless

found that the delegates’ actions at the Convention had not

violated Davis’s election-related rights. Because Davis's

claims for libel and slander would necessarily require a court

to revisit this finding, these claims are also preempted by

36a

Title IV of the LMRDA. Cf. Henegar v. Banta, 27 F.3d 223,

226-27 (6th Cir. 1994) (holding that the Railway Labor Act

“preempts state law claims based on libel and slander”

because the “court would inevitably have to interpret the

terms of the collective bargaining agreement,” a task within

the exclusive jurisdiction of the National Railroad Ad-

justment Board); Miller v. Norfolk & W. Ry. Co., No. 89-

4101, 1990 WL 163302, at *5 (6th Cir. Oct. 25, 1990)

(unpublished) (finding libel and slander claims preempted by

the Railway Labor Act where, “[a]lthough defamation was

not an issue before the [administrative] board,” the

defamation claim was “based upon a matrix of facts that

[wa]s inextricably intertwined with the collective bargaining

agreement”).

Ill. CONCLUSION

For all of the reasons set forth above, we REVERSE the

district court’s remand of Davis’s state-law claims and

REMAND with instructions to dismiss the claims on the basis

that they are precluded by the LMRDA.

37a

APPENDIX F

STATUTES AND REGULATION INVOLVED

L.M.R.A. Section 301(a), 29 U.S.C. § 185(a), states:

Suits for violation of contracts between an employer and

a labor organization representing employees in an

industry affecting commerce as defined in this chapter,

or between any such labor organizations, may be

brought in any district court of the United States having

jurisdiction of the parties, without respect to the amount

in controversy or without regard to the citizenship of

the parties.

L.M.R.D.A. Section 101(a)(1), 29 U.S.C. § 41 1(a)(1), states:

Equal rights

Every member of a labor organization shall have equal

rights and privileges within such organization to nomi-

nate candidates, to vote in elections or referendums of

the labor organization, to attend membership meetings,

and to participate in the deliberations and voting upon

the business of such meetings, subject to reasonable

rules and regulations in such organization's constitution

and bylaws.

L.M.R.D.A. Section 101(a)(2), 29 U.S.C. § 411(a)(2), states:

Freedom of speech and assembly

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

38a

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.

L.M.R.D.A. Section 102, 29 U.S.C. § 412, states:

Any person whose rights secured by the provisions of

this subchapter have been infringed by any violation of

this subchapter may bring a civil action in a district court

of the United States for such relief (including injunc-

tions) as may be appropriate. Any such action against a

labor organization shall be brought in the district court

of the United States for the district where the alleged

violation occurred, or where the principal office of such

labor organization is located.

L.M.R.D.A. Section 401, 29 U.S.C. § 481(a) - (g), states:

(a) Officers of national or international labor organl-

zations; manner of election

Every national or international labor organization,

except a federation of national or international labor

organizations, shall elect its officers not less often than

once every five years either by secret ballot among the

members in good standing or at a convention of

delegates chosen by secret ballot.

(b) Officers of local labor organizations; manner of

election

Every local labor organization shall elect its officers not

less often than once every three years by secret ballot

among the members in good standing.

action for enforcement; jurisdiction; inspection of mem-

bership lists; adequate safeguards to insure fair election

Every national or international labor organization, ex-

cept a federation of national or international labor

39a

organizations, and every local labor organization, and its

officers, shall be under a duty, enforceable at the suit of

any bona fide candidate for office in such labor

organization in the district court of the United States in

which such labor organization maintains its principal

office, 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 refrain from dis-

crimination in favor of or against any candidate with

respect to the use of lists of members, and whenever

such labor organizations or its officers authorize the

distribution by mail or otherwise to members of cam-

paign literature on behalf of any candidate or of the labor

organization itself with reference to such election,

similar distribution at the request of any other bona fide

candidate shall be made by such labor organization and

its officers, with equal treatment as to the expense of

such distribution. Every bona fide candidate shall have

the right, 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 who are subject to

a collective bargaining agreement requiring membership

therein as a condition of employment, which list shall be

maintained and kept at the principal office of such labor

organization by a designated official thereof. Adequate

safeguards to insure a fair election shall be provided,

including the right of any candidate to have an observer

at the polls and at the counting of the ballots.

(d) Officers of intermediate bodies: manner of election

Officers of intermediate bodies, such as general com-

mittees, system boards, joint boards, or joint councils,

shall be elected not less often than once every four years

40a

by secret ballot among the members in good standing or

by labor organization officers representative of such

members who have been elected by secret ballot.

(e) Nomination of candidates; eligibility; notice of

election; voting rights; counting and publication of re

sults; preservation of ballots and records

In any election required by this section which is to be

held by secret ballot a reasonable opportunity shall be

given for the nomination of candidates and every mem-

ber in good standing shall be eligible to be a candidate

and to hold office (subject to section 504 of this title and

to reasonable qualifications uniformly imposed) and

shall have the right to vote for or otherwise support the

candidate or candidates of his choice, without being

subject to penalty, discipline, or improper interference or

reprisal of any kind by such organization or any member

thereof. Not less than fifteen days prior to the election

notice thereof shall be mailed to each member at his last

known home address. Each member in good standing

shall be entitled to one vote. No member whose dues

have been withheld by his employer for payment to such

organization pursuant to his voluntary authorization

provided for in a collective bargaining agreement shall

be declared ineligible to vote or be a candidate for office

in such organization by reason of alleged delay or

default in the payment of dues. The votes cast by

members of each local labor organization shall be

counted, and the results published, separately. The

election officials designated in the constitution and

bylaws or the secretary, if no other official is designated,

shall preserve for one year the ballots and all other

records pertaining to the election. The election shall be

conducted in accordance with the constitution and

bylaws of such organization insofar as they are not

inconsistent with the provisions of this subchapter.

4la

(f) Election of officers by convention of delegates;

manner of conducting convention; preservation of

records

When officers are chosen by a convention of delegates

elected by secret ballot, the convention shall be

conducted in accordance with the constitution and

bylaws of the labor organization insofar as they are not

inconsistent with the provisions of this subchapter. The

officials designated in the constitution and bylaws or the

secretary, if no other is designated, shall preserve for one

year the credentials of the delegates and all minutes and

other records of the convention pertaining to the election

of officers.

(g) Use of dues, assessments or similar levies, and funds

of employer for promotion of candidacy of person

No moneys received by any labor organization by way

of dues, assessment, or similar levy, and no moneys of

an employer shall be contributed or applied to promote

the candidacy of any person in any election subject to

the provisions of this subchapter. Such moneys of a

labor organization may be utilized for notices, factual

statements of issues not involving candidates, and other

expenses necessary for the holding of an electicn.

L.M.R.D.A. Section 402, 29 U.S.C. § 482, states:

(a) Filing of complaint; presumption of validity of

challenged election

A member of a labor organization—

(1) who has exhausted the remedies available under

the constitution and bylaws of such organization and

of any parent body, or

(2) who has invoked such available remedies with-

out obtaining a final decision within three calendar

months after their invocation, may file a complaint with

42a

the Secretary within one calendar month thereafter

alleging the violation of any provision of section 481 of

this title (including violation of the constitution and

bylaws of the labor organization pertaining to the

election and removal of officers). The challenged

election shall be presumed valid pending a final

decision thereon (as hereinafter provided) and in the

interim the affairs of the organization shall be con-

ducted by the officers elected or in such other manner

as its constitution and bylaws may provide.

(b) Investigation of complaint; commencement of civil

action by Secretary; jurisdiction; preservation of assets

The Secretary shall investigate such complaint and, if he

finds probable cause to believe that a violation of this

subchapter has occurred and has not been remedied, he

shall, within sixty days after the filing of such complaint,

bring a civil action against the labor organization as an

entity in the district court of the United States in which

such labor organization maintains its principal office to

set aside the invalid election, if any, and to direct the

conduct of an election or hearing and vote upon the

removal of officers under the supervision of the

Secretary and in accordance with the provisions of this

subchapter and such rules and regulations as_ the

Secretary may prescribe. The court shall have power to

take such action as it deems proper to preserve the assets

of the labor organization.

certification of election to court; decree; certification of

result of vote for removal of officers

If, upon a preponderance of the evidence after a trial

upon the merits, the court finds—

(1) that an election has not been held within the time

prescribed by section 481 of this title, or

43a

(2) that the violation of section 481 of this title may

have affected the outcome of an election, the court

shall declare the election, if any, to be void and direct

the conduct of a new election under supervision of the

Secretary and, so far as lawful and practicable, in

conformity with the constitution and bylaws of the

labor organization. The Secretary shall promptly

certify to the court the names of the persons elected,

and the court shall thereupon enter a decree declar-

ing such persons to be the officers of the labor

organization. If the proceeding is for the removal of

officers pursuant to subsection (h) of section 481 of

this title, the Secretary shall certify the results of the

vote and the court shall enter a decree declaring

whether such persons have been removed as officers

of the labor organization.

(d) Review of orders; stay of order directing election

An order directing an election, dismissing a complaint,

or designating elected officers of a labor organization

shall be appealable in the same manner as the final

judgment in a civil action, but an order directing an

election shall not be stayed pending appeal.

L.M.R.D.A. Section 403, 29 U.S.C. § 483, states:

No labor organization shall be required by law to

conduct elections of officers with greater frequency or in

a different form or manner than is required by its own

constitution or bylaws, except as otherwise provided by

this subchapter. Existing rights and remedies to enforce

the constitution and bylaws of a labor organization with

respect to elections prior to the conduct thereof shall not

be affected by the provisions of this subchapter. The

remedy provided by this subchapter for challenging an

election already conducted shall be exclusive.

44a

L.M.R.D.A. Section 603, 29 U.S.C. § 523(a), states:

(a) Except as explicitly provided to the contrary, nothing

in this chapter shall reduce or limit the responsibilities of

any labor organization or any officer, agent, shop

steward, or other representative of a labor organization,

or of any trust in which a labor organization is

interested, under any other Federal law or under the laws

of any State, and, except as explicitly provided to the

contrary, nothing in this chapter shall take away any

right or bar any remedy to which members of a labor

organization are entitled under such other Federal law or

law of any State.

29 C.F.R 452.14 states:

The initial selection of officers by newly formed or

merged labor organizations is not subject to the

requirements of Title IV.'° Such labor organizations

may have temporary or provisional officers serve until a

regular election subject to the Act can be scheduled. An

election under all the safeguards prescribed in these

regulations must be held within a reasonable period after

the organization begins to function. What would be a

reasonable time for this purpose depends on the cir-

cumstances, but after the formation or consolidation of

the labor organization, a regular election subject to Title

IV may not be deferred longer than the statutory period

provided for that type of organization. However, when a

pre-existing labor organization changes its affiliation

without substantially altering its basic structure or iden-

tity the terms of its officers may not be extended beyond

the maximum period specified by the Act for the type of

labor organization involved.

15. However, the other provisions of the Act are ap-

plicable immediately upon such formation or merger.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.