Appendix — Jewel Food Stores v. Merk

M-1

UNITED STATES OF AMERICA

NATIONAL LABOR RELATIONS BOARD

CHARGE AGAINST EMPLOYER

INSTRUCTIONS: File an original and 4 copies of this charge

with NLRB Regional Director for the region in which the alleged

unfair labor practice occurred or is occurring.

CASE NO. 13-04-24018

DATE FILED: February 22, 1984

1. EMPLOYER AGAINST WHOM CHARGE IS BROUGHT

a. NAME OF EMPLOYER: JEWEL FOOD STORES

DIVISION, JEWEL COMPANIES, INC.

b. NUMBER OF WORKERS EMPLOYED: 16,000

c. ADDRESS OF ESTABLISHMENT: 1955 West North Ave.,

Melrose Park, IL 60160

d. EMPLOYER REPRESENTATIVE TO CONTACT: Neill

Petronella

e. PHONE NO.: (312) 53146423

f, TYPE OF ESTABLISHMENT: Retail food store

g. IDENTIFY PRINCIPAL PRODUCT OR SERVICE: Retail

foods

h. THE ABOVE NAMED EMPLOYER HAS ENGAGED IN

AND IS ENGAGING IN UNFAIR LABOR PRACTICES

WITHIN THE MEANING OF SECTION 8a), SUBSEC-

TIONS (1) AND (5) OF THE NATIONAL LABOR RELA-

TIONS ACT, AND THESE UNFAIR LABOR PRACTICES

ARE UNFAIR LABOR PRACTICES AFFECTING COM-

MERCE WITHIN THE MEANING OF THE ACT.

2. BASIS OF THE CHARGE:

On or about October 20, 1983, the Employer executed a

Contract with the Charging Union which by its terms is

effective from September 19, 1982 to June 15, 1985. On or about

December 20, 1983, the Employer requested that the Union

M-2

meet with it to discuss reduction in wages and other Contract

benefits. Notwithstanding the fact that the Union had no legal

obligation to do so, it did meet with the Employer. At such

meeting, on January 26, 1984, the Employer proposed that

wages be reduced by as much as $1.75 per hour and that

Contract vacation and holiday benefits be reduced. Notwith-

standing the fact that the parties were discussing mid-term

Contract concessions, The Employer declared that its proposal

was a “final offer” and that the parties were at “impasse.”

Accordingly, in wilful disregard of the law and the Contract

rights of the employees, the Employer declared that it would

implement its “final offer” unless accepted by the membership

by midnight, February 15, 1984. On February 16, 1984, the

Employer announced that its “final offer” not having been

accepted by its deadline, would be implemented effective

Sunday, February 26, 1984. The Employer’s conduct in this

regard is wilful breach of the Collective Bargaining Agreement

and a flagrant violation of the Act.

BY THE ABOVE AND OTHER ACTS, THE ABOVE-

NAMED EMPLOYER HAS INTERFERED WITH, RE-

STRAINED, AND COERCED EMPLOYEES IN THE EXER-

CISE OF THE RIGHTS GUARANTEED IN SECTION 7 OF

THE ACT.

3. FULL NAME OF PARTY FILING CHARGE: United Food

& Commercial Workers Union, Local 881

4a. ADDRESS: 9865 West Roosevelt Road, Westchester, Dlinois

60153

4b. TELEPHONE NO.: (312) 681-1000

5. FULL NAME OF NATIONAL OR INTERNATIONAL

LABOR ORGANIZATION OF WHICH IT IS AN AFFIL-

LATE OR CONSTITUENT UNIT: United Food & Commer-

cial Workers International Union, AFL-CIO, CLC

M-3

6. DECLARATION:

I declare that I have read the above charge and that the

statements therein are true to the best of my knowledge and

belief.

By: /8/ Rospert KARMEL

Robert Karmel

Karmel & Rosenfeld

221 North LaSalle Street, Suite 1963

Chicago, Dlinois 60601

Telephone: 312/641-2910

Date: February 22, 1984

Attorney

M-4

LAW OFFICES OF

KARMEL & ROSENFELD

221 NORTH LA SALLE STREET

Cuicaco, Inurvois 60601

RosBert KARMEL (312) 641-2910

Neat D. RosenreLp Leena, ean

JONATHAN D. KARMEL ene

Jarrus M. GILDEN

June 24, 1985

Donald J. Crawford, Regional Director

National Labor Relations Board

Region 13

219 South Dearborn Street

Chicago, Dlinois 60604

Re: Jewel Food Stores Division of Jewel Companies

Case No. 13-CA-24018

Dear Mr. Crawford:

We are please to report that UFCW Local 881 and Jewel

have fully settled the contract dispute which underlies the above-

captioned case. The settlement was ratified by the membership

through a mail ballot election. The ballots were counted on June

21, 1985 and the results are as follows:

6367 to accept

1053 to reject

__69 void ballots

7489

The terms of the settlement are explained in detail in the

enclosed booklet, which was mailed to the employees with the

mail-in ballot. With certain limited exceptions as noted in the

booklet, the settlement restores rates of pay and length of service

progressions to the level that existed prior to the February 26,

1984 wage cuts and provides for 100% back pay for all employees

in service on the date of ratification. Vacations that were cut

will be restored effective January 1, 1986 and personal days that

were eliminated will be restored on a pro rata basis on July 1,

1986. The settlement also provides for an extension of the contract

to October 4, 1986.

M-5

Because this contract settlement fully and fairly resolves the

dispute resulting from Jewel’s unilateral reduction in wages,

personal days and vacation benefits, the Union requests that

its Charge and the Complaint be withdrawn. The Union is

ation of contract wages and benefits with full back pay fully

effectuates the Purposes and objectives of the Act.

Very truly yours,

KARMEL & ROSENFELD

Robert Karmel

RK:ev

cc: Kovar Nelson & Brittain

UFCW Local 881

E. ALLAN KOVAR

Date 6-25-85

Time lla

M-6

UNITED STATES OF AMERICA

BEFORE THE NATIONAL LABOR RELATIONS BOARD

REGION 13

JEWEL FOOD STORES, DivV.,

JEWEL COMPANIES, INC.

and Case 13-CA-24018

UNITED FOOD AND COMMERCIAL

WORKERS INTERNATIONAL UNION,

LOCAL 881

ORDER GRANTING REQUEST TO

WITHDRAW CHARGE, DISMISSING COMPLAINT

AND WITHDRAWING NOTICE OF HEARING

Upon request of the Charging Party to withdraw the charge

filed in the above-captioned matter, pursuant to Section 102.9

of the Board’s Rules and Regulations, Series 8, as amended,

IT IS HEREBY ORDERED that the request of the Charging

Party to withdraw the charge heretofore filed herein be, and the

same hereby is, granted, and

IT IS FURTHER ORDERED that the Complaint heretofore

issued herein be, and it hereby is, dismissed, and

IT IS FURTHER ORDERED that the Notice of Hearing

heretofore issued herein be, and it hereby is, withdrawn.

DATED at Chicago, [linois, this 25th day of July, 1985.

/8/ DONALD J. CRAWFORD

Donald J. Crawford, Regional Director

National Labor Relations Board

Region 13

Everett McKinley Dirksen Building

219 South Dearborn Street, Room 881

Chicago, Dlinois 60604

APPENDIX N

N-1

Instruction Number 15.

If you do not believe that the written agreement was intended

by the parties to be a complete expression of their agreement,

then you may consider evidence of any oral agreements made

between Jewel and the Union. The Defendant claims that there

was an oral reopener agreement. The Plaintiffs argue that even

if there was an oral agreement besides the written collective

bargaining agreement, that oral agreement is invalid because

it was not ratified by the union members.

An agreement between a union and a company must be

ratified by the union members only if the Union’s own rules

require that all agreements must be ratified. But even if the rules

require ratification, if the Union and the company have a practive

of ignoring the ratification requirement, then the company may

rely on an agreement even though it has not been ratified by

the employees — that is, if there is a practice of ignoring the

ratification requirement for some agreements, an agreement is

not necessarily invalid because unratified.

Therefore, you must first determine whether the Union rules

required the employees to ratify all parts of the collective

bargaining agreement. If the Union rules did not, then an oral

agreement would be valid even though it was not ratified.

If you find that the rules did require ratification, you must

then determine whether the Defendant knew that ratification

was required, and knew that the agreement was not ratified.

If the Defendant did not know that the Union rules required

ratification, or did not know that the reopener agreement was

not ratified, then the reopener agreement could be valid even

if it was not ratified.

If you find that the Defendant knew ratification was required

and that an oral agreement was not ratified, then you must decide

whether there was a practice between Jewel and the Union of

making agreements that were not ratified. I instruct you that

if you find that there was such a practice, then you may not

find that an oral agreement was invalid simply because it was

not ratified.

APPENDIX O

O-1

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

FRANK ACKLEY and STEVEN CoLe,

Plaintiffs-Appellants, N yee 1.

i D.C. No.

WESTERN CONFERENCE OF CV-88-6146-DMT

TEAMSTERS, et al.,

Defendants-Appellees. OPINION

Appeal from the United States District Court

for the Central District of California

Dickran M. Tevrizian, District Judge, Presiding

Argued and Submitted

May 10, 1991—Pasadena, California

Filed February 21, 1992

Before: Thomas Tang, Stephen Reinhardt and

+ Charles Wiggins, Circuit Judges.

Opinion by Judge Reinhardt

SUMMARY

Labor/Attorneys’ Fees

Affirming in part and reversing in part a district court judg-

ment of dismissal pursuant to Fed. R. Civ. P. 41(b), the court

of appeals held that the equal rights and freedom of speech

guarantees of Sec. 101(a) of the Labor-Management Report-

ing and Disclosure Act (LMRDA) does not require union

Q-2

1746 ACKLEY v. WESTERN CONFERENCE OF TEAMSTERS

leaders to make a full disclosure of all of the terms and provi-

sions of a CBA pnor to submitting the agreement to the union

membership for ratification.

Appellants Frank Ackley and Steven Cole were Teamsters

union members employed by Matlack Inc., a nationwide haul-

ing company. Dunng negotiations involving a collective bar-

gaining agreement, the union leadership recommended that

the members accept a third proposed agreement consisting

entirely of monetary changes. However, the new agreement

contained a number of changes to nonmonetary provisions of

the previous contract that had not been disclosed to the mem-

bership. Appellants filed suit against the employer under sec-

tion 101 of the LMRDA and section 301 of the Labor-

Management Relations Act (LMRA) claiming that the union's

failure to disclose material changes in the CBA prior to the

ratification vote violated the equal voting rights and freedom

of speech provisions of section 101 and breached the duty of

fair representation requried by section 301. However, appel-

lants did not allege that there was any breach of the union

constitution or bylaws or set forth any cause of action under

section 301 based on such breach. Although the district court

granted the employer's motion to dismiss under Fed. R. Civ.

P. 41(b), it awarded the employer attorneys’ fees.

{1} The court did not need to determine whether or not the

district court erred in its findings of fact in view of the court’s

conclusions that, as a matter of law, the LMRDA does not

provide a right to the disputed information, and that, regard-

less of the truth or falsity of the challenged finding, appel-

lants’ cause of action for breach of the duty of fair

representation fell on other grounds, and the fact that no cause

of action for breach of the union's constitution or bylaws was

alleged. [2] In light of the court’s conclusion that the LMRDA

imposes no minimum disclosure requirements on union offi-

Cials, at least when there is no statutorily created right to vote

on the subject at issue, and its conclusion that no equal protec-

tion issue arose when all of the rank-and-file members were

EEE ee ee ee ee

O-3

ACKLEY v. WESTERN CONFERENCE OF TEAMSTERS 1747

treated identically, the court concluded that the exclusion of

proffered testimony concerning the materiality of undisclosed

contract changes did not prejudice appellants with respect to

their LMRDA cause of action. The court also concluded that

appellants were also not prejudiced with respect to their duty

of fair representation claim. [3] In this Case, appellants prof-

fered no evidence whatsoever that the employer would have

been disposed to agree to more generous terms had the union

rejected the proposed agreement a third time. Accordingly,

appellants failed completely to Satisfy the second prong of the

Acri test. Thus, their claim that the union leaders breached

their statutory duty of fair representation was properly dis-

missed. [4] In addition, the district court properly rejected the

argument that the union leadership's decision to withhold

from the rank-and-file membership information regarding the

nonmonetary terms of the proposed collective bargaining

agreement violated the equal rights guarantees to union mem-

bers of section 101 of the LMRDA. (S] That section is an

anti-discrimination provision, pure and simple. Here, no dis-

crimination against any member or group of members

occurred. [6] Also, the question whether the information pro-

vided was biased toward a particular outcome was irrelevant

for purposes of that section. The anti-discrimination provision

was not intended to cover the type of information disparity

complained of by appellants. [7] Neither was the withholding

of information from union members during the CBA ratifica-

tion meetings a violation of the LMRDA’s guarantees of free-

dom of speech and assembly. [8] The LMRDA does not

require that union members be given the opportunity to ratify

collective bargaining agreements negotiated by their bargain-

ing representatives. That night is provided, if at all, by the

union's constitution or bylaws. The court concluded that it is

the breach of the union's internal rules that Must serve as the

basis for any complaint that insufficient information was pro-

vided to the membership prior to or at the time of ratification

of a contract. Section 101 of the LMRDA affords no remedy

for such a breach. [9] Here, although the Teamsters constitu-

0-4

1748 ACKLEY v. WESTERN CONFERENCE OF TEAMSTERS

tion provided a right to vote on contract ratification and the

nature and extent of that nght was subject to union regulation,

appellants failed to allege any violation of the union's rules

and failed to plead any cause of action for such breach. [10]

Because appellants did not allege any breach of the union's

internal rules, the court did not decide whether they had estab-

lished such a breach, and if so, whether they were entitled to

relief under section 301 of the LMRA.

{11} Although appellants’ substantive claims were merit-

less, the court found no basis in law for the district court’s

award of attorneys’ fees to the employer and the union. The

rationale for a “common benefit” award is entirely inapplica-

ble to cases in which a union defendant prevails against a

member’s or members’ claim for relief under the LMRDA.

{12} Nor could the award be justified on any other ground.

There was no allegation that appellants willfully disobeyed a

court order or acted in bad faith. Therefore, the award of

attorneys’ fees was reversed.

COUNSEL

Julie Fosbinder, Tucson, Arizona, for the plainuffs-appellants.

Paul Alan Levy, Public Citizen Litigation Group, Washing-

ton, D.C., for the plainuffs-appellants in no. 90-55702.

Michael J. Shelley, Robert Vogel, Wohlner, Kaplon, Phillips,

Vogel, Shelley & Young, Encino, California, for the

defendant-appellee.

OPINION

REINHARDT, Circuit Judge:

The primary question presented by this case is whether the

equal rights and freedom of speech guarantees of section

0-5

ACKLEY v. WESTERN CONFERENCE OF TEAMSTERS 1749

10i(a) of the Labor-Management Reporting and Disclosure

Act (LMRDA), 29 U.S.C. § 411(a) (1988), require union

leaders to make a full disclosure of all of the terms and provi-

sions of a collective bargaining agreement prior to submitting

the agreement to the union membership for ratification. We

hold that they do not. There is no provision in the LMRDA

that requires that a labor contract be submitted to the member-

ship for ratification. Rather, the question of contract approval

constitutes an internal union affair. It is left to the union and

its membership to determine whether ratification is required,

and if so, what procedures apply. Ordinarily, it is the union's

constitution or bylaws that govern these matters (although in

rare instances a successful action for breach of the duty of fair

representation might be brought). However, a failure to follow

the union's internal rules, including its procedures governing

contract ratifications, constitutes a violation of the union's

obligations to its members, and is actionable as a breach of

contract under section 301(a) of the Labor-Management Rela-

tions Act (LMRA), 29 U.S.C. § 185(a) (1988). No such

breach is alleged here and no remedy is sought, under

§ 301(a) or otherwise, for any violation of the union's consti-

tution or bylaws. Accordingly, we affirm the district court's

grant of defendant's motion to dismiss pursuant to Fed. R.

Civ. P. 41(b).

I

Appellants Frank Ackley and Steven Cole are Teamsters

employed by Matlack, Inc., a nationwide hauling company.

Together with approximately 300 other Teamsters employed

in Matlack’s western region, they were covered by the 1988-

1991 Master Tank Agreement negotiated between Matlack

and appellee Western Conference of Teamsters (WCT), a sub-

ordinate organization of the International Brotherhood of

Teamsters, Chauffeurs, Warehousemen, and Helpers of

America, AFL-CIO. The Matlack Teamsters covered by the

agreement belong to six local unions affiliated with WCT.'

"These locals include appellee Local 692 in Long Beach, California:

Local 495 in Los Angcles, California: Local 315 in Martinez, California:

0-6

1750 ACKLEY v. WESTERN CONFERENCE OF TEAMSTERS

Ackley and Cole are members and shop stewards of Local

Unions 692 and 315, respectively.

Prior to 1988, members of the six locals were covered by

a multi-employer collective bargaining agreement between

WCT and the Western States Bulk Commodity Haulers Asso-

ciation, of which Matlack is a member. The multi-employer

agreement expired in June, 1988. In 1987, Matlack noufied

WCT of its intent to withdraw from the multi-employer bar-

gaining arrangement and bargain independently with the

union. Matlack subsequently filed petitions with the National

Labor Relations Board (NLRB) to request that the NLRB cer-

tify three separate collective bargaining units for the upcom-

ing negotiations. The NLRB instead determined that the local

unions composed of Matlack employees would consutute a

single collective bargaining unit. Negotiations with WCT and

the business representatives of the six local unions com-

menced in or about May, 1988. To counter Matlack’s

attempts to break up the bargaining unit, the union negouators

agreed not to release information about proposed terms and

conditions to the membership unul a complete agreement was

ready for ratification.

The Teamsters’ constitution requires membership raufica-

tion of collective bargaining agreements negotiated by the

union leadership, but does not specify the particular method

to be used. Prior to 1988, on all occasions except one, ratifica-

tion of agreements negotiated by WCT occurred as the result

of a mail referendum. Members received written disclosure of

proposed changes in the union contract approximately ten

days before ballots were due. In 1982, ratification occurred at

a series of open meetings held in the local unions. At the local

unions’ 1988 pre-negotiation meetings, the membership

Local 291 in San Leandro, California; Local 81 in Portland, Oregon; and

Local 741 in Seattle, Washingtoa. Local 690, in Spokane, Washington,

was not affected by the 1988-1991 agreement.

OE

0-7

ACKLEY Vv. WESTERN CONFERENCE OF TEAMSTERS i751

approved an open meeting ratification procedure for the 1988-

1991 agreement.’

On August 12, 1988, local union leaders notified the mem-

bership that ratification meetings would be held in each local

union on August 14. Ackley contacted the business represen-

tative for Local Union 692 to request information about the

terms of the proposed agreement, but his request was refused.

The business representative for Local Union 315 read Cole a

Summary of the terms of the proposed agreement over the

telephone, and stated in response to a question from Cole that

no other changes had been made. At the ratification meetings

held on August 14, union leaders read the same summary to

the membership. The summary of terms included changes to

the monetary terms of the collective bargaining agreement,

but omitted proposed changes to other provisions of the con-

tract. The union leaders urged the membership to reject the

proposed agreement, and ratification failed by a vote of 148

to 4. Cole spoke out against ratification; Ackley was silent.

On August 17, the membership was notified of a second set

of ratification meetings to take place on August 21. Both Ack-

ley and Cole again contacted their business representatives,

and both were read a summary of the provisions of the pro-

posed agreement. Again, this summary included only changes

to the monetary terms of the previous contract. At the meet-

ing, union leaders again read the summary of terms to the

membership and again recommended that the members reject

the agreement. The agreement was defeated by a vote of 168

to 28. Again, Cole argued against ratification and Ackley was

silent.

On August 25, the Matlack Teamsters were notified that a

third set of ratification meetings would occur on August 28.

*During the pre-negotiation meetings, the Matlack Teamsters were also

given an opportunity to submit suggestions regarding desired changes to

the terms of the previous (1985-1988) agreement.

0-8

17582 ACKLEY v. WESTERN CONFERENCE OF TEAMSTERS

When Cole and Ackley telephoned their respective business

agents for information about the third proposed agreement,

the agents refused to release information prior to the meet-

ings. The day before the meetings, Ackley’s agent finally

agreed to let Ackley examine the agreement. Ackley spent

three hours at Local 692 going over the document, but he did

not bring a copy of the 1985-1988 agreement with him for

purposes of comparison.

This time, unlike the first two times, the union leadership

recommended that the members accept the third proposed

agreement. Again, the leaders read or distributed a summary

of terms that consisted entirely of monetary changes.’

Although Ackley testified that he had spoken to a number of

drivers before the meeting to indicate that he wished to delay

the vote, he did not ask to address the members at the meeting

or call for a delay or further discussion. Cole again argued

against ratification, and his local, Local 315, voted to reject

the agreement. However, the bargaining unit as a whole voted

95 to 75 in favor of ratification. According to the tesumony

of plaintiffs’ witnesses, the new 1988-1991 agreement

included a number of changes to nonmonetary provisions of

the previous contract that had not been disclosed to the mem-

bership.

Ackley and Cole filed suit against WCT, Local Union 692,

and Matlack under section 101 of the Labor-Management

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

and section 301 of the Labor-Management Relations Act

(LMRA), 29 U.S.C. § 185. They claimed that the union's fail-

ure to disclose material changes in the collective bargaining

*Appeliees claim that Cole has admitted that the entire agreement was

read and distributed at Local 315. According to Cole, his affidavit stating

that “the agreement” was distributed referred to the one-page summary of

monetary terms that he believed contained all of the changes to the previ-

Ous agreement. There can be little doubt that the entire agreement, which

exceeded 140 pages, was not distributed.

|

0-9

ACKLEY v. WESTERN CONFERENCE OF TEAMSTERS 1753

agreement prior to the ratification vote violated the equal vot-

ing rights and freedom of speech provisions of section 101

and breached the duty of fair representation required by sec-

tion 301. They did not, however, allege that there was any

breach of the union constitution or bylaws, or set forth any

Cause of action under section 301 based on such a breach.

Ackley and Cole initially sought rescission of the 1988-

1991 agreement and an injunction regarding the conduct of

future ratification votes. They later agreed to the dismissal of

Matlack as a defendant and abandoned their claim for rescis-

sion in favor of a request for declaratory judgment. A two-day

trial was held. At the close of plaintiffs’ case, the district court

granted defendants’ motion to dismiss pursuant to Federal

Rule of Civil Procedure 41(b). The court's order of dismissal

authorized WCT to seek attorneys’ fees from plaintiffs. The

court later awarded defendants $16,070.40 in attorneys’ fees.

Ackley and Cole appeal from the district court's order of dis-

missal and from the supplemental order awarding attorneys’

fees. The two appeals were consolidated by order of this

court.

Appellees contend that because Ackley and Cole have

abandoned their claim for rescission of the 1988-1991 agree-

ment and seek only prospective relief, this case should be dis-

missed as moot. A case is moot when Subsequent events have

eradicated the effects of the alleged wrong and there is no rea-

sonable expectation that it will recur. County of Los Angeles

v. Davis, 440 U.S. 625, 631, 99 S. Ct 1379, 1383 (1979).

Lodge 1380, Bhd. of Ry., Airline & Steamship Clerks (BRAC)

v. Dennis, 625 F.2d 819, 822 (9th Cir. 1980). Appellees note

that the 1988-1991 agreement had already been in effect for

nearly two years at the time of this appeal, and maintain that

any need for relief in connection with future ratification pro-

ceedings is wholly speculative.

O-10

1754 ACKLEY Vv. WESTERN CONFERENCE OF TEAMSTERS

A case is not moot if the alleged wrong is * ‘capable of rep-

etition, yet evading review.’ '’ Nebraska Press Ass'n v. Stuart,

427 U.S. 539, 546, 96 S. Ct. 2791, 2797 (1976) (quoting

Southern Pacific Terminal Co. v. ICC, 219 U.S. 498, 515, 31

S. Ct. 279, 283 (1911)). This standard is met if the duration

of the injury is shorter than the time required for litigation,

and if there is a reasonable likelihood that the same party will

be subject to the injury again. Weinstein v. Bradford, 423 U.S.

147, 149, 96 S. Ct. 347, 348 (1975); NAACP v. City of Rich-

mond, 743 F.2d 1346, 1353 (9th Cir. 1984).

Contrary to appellees’ suggestion, the wrong alleged by

Ackley and Cole satisfies this standard. When procedural

wrongs involving the ratification process are alleged, the

length of time a collective bargaining agreement has been in

force is irrelevant to the issue of mootness. The relevant time

penod to be considered in determining whether such wrongs

are likely to evade review is the duration of the ratification

process itself. Absent impasse, one collective bargaining

agreement succeeds another after no more than a few months

of negotiation. Litigation of disputes arising out of negotiation

and ratification proceedings is not feasible within so short a

period. Cf. First National Bank of Boston v. Bellotti, 435 U.S.

765, 774, 98 S. Ct. 1407, 1414 (1978) (holding that an 18-

month election period is too short to allow complete judicial

review of constitutional issues). In this case, litigation has

lasted over three years, and the 1988-1991 agreement between

WCT and Matlack has already expired.

Moreover, absent a formal resolution to the contrary, there

is a reasonable likelinood that WCT and the leadership of the

local unions will conduct future ratification votes in the same

manner as they did in 1988. See, e.g., International Org. of

Masters, Mates & Pilots v. Brown, __ U.S. __, 111 S. Ct.

880, 885 (1991); Lodge 1380, BRAC, 625 F.2d at 822-23.

Appellees erroneously imply that Ackley and Cole bear the

burden of proving that the conduct at issue is capable of repe-

tition. It is the defendant, not the plaintiff, who must demon-

O-11

ACKLEY v. WESTERN CONFERENCE OF TEAMSTERS 1755

Strate that the alleged wrong will not recur. ron Arrow Honor

Soc’y v. Heckler, 464 U.S. 67, 72, 104 S. Ct. 373, 375 (1983).

Appellees have offered no such proof.

tI

As an initial matter, Ackley and Cole argue that the district

court committed a number of errors that require reversal of its

ultimate findings. They challenge four of the district court's

findings of fact and contend that two of its evidentiary rulings

constitute reversible error. We examine each of the alleged

errors in turn.

A

We will not overturn a district court's findings of fact

unless those findings are clearly erroneous. Johnson v. United

States Postal Serv., 756 F.2d 1461, 1464 (9th Cir. 1985). We

decline to find error where “ample evidence” supports the

findings. Maykuth v. Adolph Coors Co., 690 F.2d 689, 695

(9th Cir. 1982).

The district court found that the local union leadership rec-

ommended against ratification of the second proposed agree-

ment. Appellants note that this finding directly contradicts

Cole's testimony that the leaders of Local Union 315 sup-

ported the proposed agreement. In light of the fact that appel-

lant Ackley’s testimony was contrary to that of appellant Cole

and the fact that the membership rejected the second proposed

agreement by a vote of 168 to 28, we cannot say that the find-

ing is clearly erroneous. In any event, even if an error

occurred, it is of no consequence. Plaintiffs offer no explana-

tion, and we can conceive of none, as to how the alleged error

could have affected the outcome of this case.

Another finding states that Ackley did not bring a copy of

the 1985-1988 agreement with him when he went to Local

Union 692 on August 27 to examine the third proposed 1988-

O-12

1756 ACKLEY Vv. WESTERN CONFERENCE OF TEAMSTERS

1991 agreement. Appellants concede that this finding is accu-

rate, but challenge it as “misleading.” We are not aware of

any authority for the proposition that a party may successfully

challenge a concededly accurate finding of fact.

The third finding challenged by appellants sets forth the

district court’s conclusion that at the ratification meetings

held in Local Union 692, neither Ackley nor any of the other

members asked any questions about the substantive provi-

sions of the proposed agreement. Ackley and Cole claim that

Ackley’s testimony establishes just the opposite. Ackley’s tes-

timony establishes that at various times he discussed his reser-

vations regarding the proposed agreement privately with some

of the other drivers, and that immediately prior to the third

und final ratification meeting he notified many members of

Local 692 of a change that he had discovered in the gnevance

procedure. However, there is no indication that he or anyone

else raised this issue or the possibility of any other undis-

closed changes during the meeting. Rather, Ackley’s testi-

mony supports the district court's conclusion that he and his

fellow Teamsters kept their questions to themselves. Once

again, appellants charge that this conclusion is misleading.

Once again, however, that charge is simply irrelevant.

[1] Finally, Ackley and Cole challenge the district court's

finding that Cole had ample opportunity to learn of and dis-

cuss the salient facts regarding the proposed agreement. They

contend that this conclusion goes to the heart of their claim

for relief under section 101 and therefore is subject to de novo

review by this court. Johnson, 756 F.2d at 1465S. At the least,

the question whether Cole had ample opportunity to leam of

and discuss the terms of the proposed agreement is a mixed

question of law and fact. Thus, the district court's finding is

irguably subject to de novo review under the Johnson

“ultimate finding” standard. Id. However, we need not deter-

mine whether or not the district court erred in finding as it did

in view of 1) our conclusions that, as a matter of law, the

LMRDA does not provide a right to the disputed information,

0-13

ACKLEY v. WESTERN CONFERENCE OF TEAMSTERS 1757

and that, regardless of the truth or falsity of the challenged

finding, plaintiffs’ cause of action for breach of the duty of

fair representation fails on other grounds, and 2) the fact that

no cause of action for breach of the union's constitution or

bylaws was alleged.

B

We review evidentiary rulings for abuse of discretion and

will not reverse absent some prejudice. Kisor v. Johns-

Manville Corp., 783 F.2d 1337, 1340 (9th Cir. 1986). Eviden-

tiary rulings result in reversible error unless it is more proba-

ble than not that the result in the district court was untainted

by the error. Pau v. Yosemite Park & Curry Co., 928 F.2d

880, 888 (9th Cir. 1991).*

During the trial, appellants made an offer of proof as to

what the deposition testimony of individual union members

would have been had the court granted a continuance of the

trial so that the depositions could have been taken. According

to the proffer, the individuals would have testified as to the

matenality of undisclosed, nommonetary changes to the col-

lective bargaining agreement. Appellants charge that the dis-

trict court's exclusion of this evidence impaired their efforts

to prove that the Matlack Teamsters were denied a meaning-

ful vote. Appellants made a further offer of proof that, if

deposed, the union members would state that they would now

vote against ratification. Although the issue is properly one of

“In Pau, we noted the existence of two different formulations of the test

for prejudice in civil cases. 928 F.2d at 888 n.2. Under the rule set forth

in Haddad v. Lockheed California Corp., 720 F.2d 1454, 1459 (Mh Cir.

1983), the reviewing court must find prejudice unless it concludes that.

more probably than noi, the result in the lower Court was untainted by the

error. By contrast, in Kisor v. Johns-Manville Corp., 783 F.2d 1337. 1340

(Ah Cir. 1986), we stated that a reviewing court will find prejudice if it

concludes that more probably than not, the lower court's error did taint the

result. As in Pau, we find the distinction between these approaches irrele-

vant to the present case; therefore. we do not address it.

—

=

O-14

1758 ACKLEY v. WESTERN CONFERENCE OF TEAMSTERS

whether the district judge abused his discretion in denying the

requested continuance, we will, for present purposes, treat the

ruling as if it constituted a determination to exclude evidence

offered by appellants.* Even under that standard, however,

any error was harmless.

[2] Although we are by no means convinced that the depo-

sition testimony the witnesses would have offered would have

been at all credible, it is true that direct testimony regarding

the materiality of undisclosed contract changes is relevant to

the question whether union members failed to receive infor-

mation important to the casting of an informed vote. How-

ever, as we will explain below, the determinative issue here

is not whether the members were able to cast informed votes

or even whether the failure to afford the members the infor-

mation allegedly withheld violated any nghts union members

enjoy by virtue of the union constitution or bylaws. Rather, in

light of appellants’ pleadings and the evidence they intro-

duced or attempted to introduce, the principal question is

whether the failure to inform the membership fully regarding

the terms of the proposed contract violated the free speech or

equal protection provisions of the LMRDA. In light of our

conclusion that the LMRDA imposes no minimum disclosure

requirements on union officials, at least when there is no sta-

tutorily created right to vote on the subject at issue, and our

conclusion that no equal protection issue arises when all of

the rank-and-file members are treated identically, we con-

clude that the exclusion of the proffered tesumony did not

prejudice appellants with respect to their LMRDA cause of

action. See discussion in Part V, infra. We also conclude that

appellants were not prejudiced with respect to their duty of

fair representation claim — a claim which appellants under-

standably assert with considerably less enthusiasm. As to the

*We have been unable to locate a copy of the transcript of the bearing

on the request for a conunuance, and although it is possible that one could

be obtained, or that the facts could be otherwise established, in view of the

holding set forth in the text, there is 00 oced to do so.

C——_

O-15

ACKLEY v. WESTERN CONFERENCE OF TEAMSTERS 1759

latter claim, the proposed testimony may have been relevant

to the question whether the outcome of the third ratification

vote would have been different had fuller information been

available, but any error in that respect does not avail the

appellants, if for no other reason than that Ackley and Cole

failed to show that a different Outcome would have induced

the employer, Matlack, to make further concessions. See

discussion in Part IV, infra.

The second evidentiary ruling complained of is the district

court's exclusion of approximately fifty witnesses who were

not listed individually on the plaintiffs’ witness list. The

charge of error is meritless. Local Rule 9.6 of the Central Dis-

trict of California imposes upon each party a continuing obli-

gation to furnish a list of witnesses to be called in that party's

Case in chief, and provides that “except for good cause shown.

the testimony of any such witness proffered at trial who is not

listed upon a party's witness list shall be precluded.” Local

Rule 9.6 requires an affirmative showing of good cause for

failure to comply by the party seeking to call unlisted wit-

nesses, claims of relevance and lack of prejudice are insuffi-

cient. Here, no such showing was made. Thus, the district

court did not abuse its discretion in excluding plaintiffs’ wit-

nesses, but rather properly applied the rules of court.

IV

In granting the union defendants’ motion to dismiss under

Federal Rule of Civil Procedure 41(b), the district court rule,

inter alia, that Ackley and Cole had failed to show a nght to

relief under section 301 of the Labor-Management Relations

Act (LMRA), 29 U.S.C. § 185 (1988), for a breach of the

union's duty of fair representation. We review ultimate find-

ings made pursuant to a Rule 41(b) motion de novo. Johnson,

756 F.2d at 1465. We note, first, that in their briefs On appeal

Ackley and Cole barely succeeded in raising the duty of fair

representation issue, if in fact they did succeed. Nevertheless,

because it is clear, both from their discussion of the evidenti-

0-16

1760 ACKLEY v. WESTERN CONFERENCE OF TEAMSTERS

ary rulings and from their objections to the factual findings,

that appellants intended to preserve this point before us, we

will overlook the obvious procedural inadequacies in their

brief.

The statutory authority to represent union members in a

collective bargaining process includes an obligation “to serve

the interests of all members without hostility or discrimination

toward any, to exercise its discretion with complete good faith

and honesty, and to avoid arbitrary conduct.” Vaca v. Sipes,

386 U.S. 171, 177, 87 S. Ct. 903, 910 (1967) (citation omit-

ted). Ackley and Cole contend that WCT and the local union

leadership breached this obligation by failing to disclose

changes in the nonmonetury provisions of the proposed col-

lective bargaining agreement to the membership. Because

Ackley and Cole failed to establish the requisite elements of

such a claim as defined in Acri v. International Ass'n of

Machinists, 781 F.2d 1393, 1397 (9th Cir.), cert. denied, 479

U.S. 816, 107 S. Ct. 73 (1986), the district court’s grant of

dismissal was proper.

The duty of fair representation extends to the conduct of

union officials during the negotiation of a collective bargain-

ing agreement. Acri, 781 F.2d at 1397. Union members may

maintain an action for breach of the duty of fair representation

based on misrepresentations made by union leaders during the

ratification process. /d. For purposes of the case before us, we

assume urguendo that such an action can also be brought in

the event of a failure to disclose information material to the

exercise of an informed vote.* However, to prevail in a mis-

*The cases that deal with the question whether liability for breach of the

duty of fa representation can anse out of a union's interacuions with its

inembership dumng the contract ratification process have all involved

dchiberate nusrepresentation. The courts are in agreement that such mis-

representauons will create liability if the requisite causal nexus can be

proved. Alicea v. Suffield Poultry, Inc., 902 F.2d 125, 130 (1st Cir. 1990);

Parker v. Connors Steel Co., 855 F.2d 1510, 1521 (11th Cir. 1988) (dicta),

i

Q-17

ACKLEY v. WESTERN CONFERENCE OF TEAMSTERS 1761

representation case — and thus in a nondisclosure case —

plaintiffs must demonstrate “a causal relationship between the

alleged misrepresentations and their injury.” /d. They must

show that (1) absent the misrepresentations, the outcome of

the ratification vote would have been different; and that (2)

had it been different, the company would have acceded to the

union s demands. /d.

The Acri test for causality, and Particularly the second

prong, is difficult to satisty, and rightly so. Generally, the

union's internal election and rulemaking processes are the

proper vehicle, at least initially, for addressing members’

complaints regarding the adequacy of union representation

during the bargaining process. Acri, 781 F.2d at 1399-1400

(Reinhardt, J., concurring). A union's conduct during bargain-

ing need only fall within “-*[{a] wide range of

reasonableness’ “ to survive judicial review. Air Line Pilots

Assn v. O'Neill, 111 S. Ct. 1127, 1134 (1991) (quoting Ford

Motor Co. v. Huffman, 345 U.S. 330, 338, 73 S. Ct. 681, 686

(1953)). Otherwise, during this era of economic retrenchment

and reductions in contract benefits, the bargaining process

would be under constant siege in the courts.

Congress created the collective bargaining system in order

to promote the peaceful and orderly, yet collective, resolution

cert. denied, 490 U.S. 1066, 109 S. Ct. 2066 (1989); Swarts v. United

Steelworkers, 808 F.2d 1221, 1224-25 (7th Cir. 1986): Acri, 781 F.2d at

1395, 1397; Anderson v. United Paperworkers Ini’! Union, 641 F.2d 574.

576-79 (8th Cir. 1981); Deboles v. Trans World Airlines, $52 F.2d 1005,

1017-20 (3d Cir.), cert. denied, 434 U.S. 837, 98 S. CX. 126 (1977). No

court has yet considered whether mere nondisclosure also constitutes a

breach of the umon's duty of fair representauon, and we need not reach

that quesuon here. We are nundful, however, of the difference between

malicasance and nonfeasance in the performance of one’s duties, as well

as of our admonition in Reiuna v. Apartment, Moiel, Hotel & Elevator

Operators Union, 453 F.2d 1018, 1025 (9th Cir. 1972), that “it will be the

unusual case in which hosule discruminauon, bad faith, dishonesty, or

arbitrary Conduct can be alleged.”

0-18

1762 ACKLEY v. WESTERN CONFERENCE OF TEAMSTERS

of industnal disputes and. ultimately, to ensure the long-term

stability of labor-management contracts. Cf. Carothers v.

Presser, 818 F.2d 926, 934 (D.C. Cir. 1987). Both union

members and employers have a strong interest in that result.

Accordingly, both benefit from the rule that labor-

management contracts will not be lightly set aside. Statements

made by union representatives during the contract ratification

process furnish insufficient justification for invalidating a col-

lective bargaining agreement, unless a showing is made that

but for those statements the ultimate outcome of the bargain-

ing would have been different. Acri, 781 F.2d at 1397.

[3] In Acri, we affirmed the district court's grant of sum-

mary judgment in favor of the union because the plaintiffs

conceded that they could not show that the employer would

have acceded to their demands even had the union remained

on strike. In the case before us, Ackley and Cole proffered no

evidence whatsoever that Matlack would have been disposed

to agree to more generous terms had the union rejected the

proposed 1988-1991 agreement a third time. Accordingly,

appellants failed completely to satisfy the second prong of the

Acri test. Thus, their claim that the union leaders breached

their statutory duty of fair representation was properly dis-

missed.

Vv

The principal ruling that Ackley and Cole challenge is that

they failed to establish any violation of section 101 of the

LMRDA, 29 U.S.C. § 411 (1988). Unlike the duty of fair rep-

resentation claim, appellants argue this point vigorously. Nev-

ertheless, we affirm. Because the union treated all members

identically during the ratification process and because the

LMRDA does not require that union members be provided

with “meaningful” information prior to voting on contract rat-

ification, appellants’ section 101 claims lack merit. If there is

a remedy for the conduct they complain of, and there well

may be, it lies elsewhere.

O-19

ACKLEY Vv. WESTERN CONFERENCE OF TEAMSTERS 1763

A

(4) Section 101(a)(1) of the LMRDA guarantees to every

union member “equal rights ... to vote in elections or refer-

endums of the labor organization, to attend membership meet-

ings, and to participate in the deliberations and voting upon

the business of such meetings.” 29 U.S.C. § 41 1(a)(1) (1988).

Ackley and Cole maintain that the union leadership's decision

to withhold from the rank-and-file membership information

regarding the nonmonetary terms of the proposed collective

bargaining agreement violated this guarantee. In light of the

settled law in this circuit regarding section 101(a)(1). the dis-

trict court properly rejected this argument.

[$} Section 101(a)(1) is an anti-discnmination provision,

pure and simple. To state a claim under section 1O1(a)(1), a

union member must allege a denial of rights accorded to other

members. Calhoon v. Harvey, 379 U.S. 134, 138-39, 85 S. Ct.

292, 295 (1964); Lodge 1380, BRAC, 625 F.2d at 826; see

also Grant v. Chicago Truck Drivers, 806 F.2d 114, 117 (7th

Cir. 1986); Alexander v. International Union of Operating

Engineers, 624 F.2d 1235, 1240 (Sth Cir. 1980); Smith v.

United Mine Workers, 493 F.2d 1241, 1244 (10th Cir. 1974).

The facts surrounding the ratification of the 1988-1991 collec-

tive bargaining agreement make clear that WCT and the local

union leaders furnished the same type and amount of informa-

tion to all of the Matlack Teamsters and accorded them identi-

cal rights to speak at the ratification meetings. No

discrimination against any member or group of members

occurred.’

"In Christopher v. Safeway Stores, Inc.. 644 F.2d 467 (Sth Cir. 1981),

the Fifth Circuit reached a result that contlicts Squarcly with Alexander

(which it had decided the previous year). Like the case before us,

Christopher involved allegauons that union leaders unproperly withbeld

matenal informauon relating to a contract raufication vote required by the

union's consutuuon. No discrimination among members or groups of

members was alleged. Nevertheless, the court held that the union's con-

0-20

1764 ACKLEY v. WESTERN CONFERENCE OF TEAMSTERS

[6] Appellants further argue that the union leaders abused

their control over information relating to the contract negotia-

tions by presenting the proposed contract to the membership

in the most favorable light. The question whether the informa-

tion provided was biased toward a particular outcome Is irrel-

evant for purposes of section 101(a)(1). Section 101(a)(1)

prohibits discrimination against people, not against ideas. We

recognize that the conduct at issue here perpetuated, indeed

exacerbated, the customary information gap between the lead-

ership of the union and its rank-and-file members. However.

unequal access to information is as inherent in the structure of

the collective bargaining system, as it is in our larger demo-

cratic system. See LMRA § 101, 29 U.S.C. § 159 (1988) (pro-

viding for the election and certification of collective

bargaining representatives), LMRDA § 401, 29 U.S.C. § 481

(1988) (providing for election of union officials), Carothers,

818 F.2d at 934. Union leaders, by virtue of their status as

collective bargaining representatives, necessanly possess

more information about the progress and projected outcome

of collective bargaining than union members. At the time of

a ratification vote, the officials will inevitably know more

about the final terms of the new agreement than the rank-and-

duct violated section 101(aX1), stating that it refused “to read [sectioo

1O1(a)(1)} to mean that a nght created or protected by the statute may be

abndged with abandon provided there is an even-handed denial to all.” /d.

at 470. The Eighth Circuit followed Christopher without discussion i

Smegal v. Gateway Foods of Minneapolis, Inc., 763 F.2d 354, 360 (8th

Cir. 1985). (The Smegal court citcd two other cases, one of which was

Clearly inapposite and one of which reached a result opposite to that

Christopher.)

The holdings in Christopher and Smegal, however, are squarely at odds

not only with the holding of the Supreme Court in Calhoon, with pnor

Fifth Circuit precedent, and with Seventh and Tenth Circuit law, but also

with the plain language of the statute, which requires only that “[e]vety

member of a labor organization shall have equal nghts and privileges

within such organization.” 29 U.S.C. § 41 1(a)(1) (1988) (emphasis added).

We decline to give section 101(a)1) an interpretation that its language 4

incapable of sustaining.

"

0-21

ACKILY v. WESTERN CONFERENCE OF TEAMSTERS 1765

file members. This would be the case even were we to require

advance distribution of the entire agreement (in this case, over

140 pages). Information conceming discussions or informal

understandings regarding the intended or actual meaning of

ambiguous provisions is of critical importance in implement-

ing union-management agreements. That information would

not be available to rank-and-file members in any event. To

attempt to ensure equal information for negotiators and mem-

bers alike would be wholly unrealistic. Carothers, 818 F.2d

at 934-35. “[I]t is not difficult to imagine how the Union's

legitimate role as bargaining representative could be

subverted” by such a rule. /d. at 934. The anti-discnmination

provision of section 101(a) was not intended to cover the type

of information disparity complained of by appellants.®

*In several cases involving section 10i(a)(1) claims, courts have read

the statute to require that the nght to vote on union matters be extended

~On an equal basis and i a meaningful manner.” McGinnis y. Local Union

710, Int'l Bhd. of Teamsters, 774 F.2d 196, 199 (7th Cir. 1985), cert.

denied, 475 U.S. 1121, 106 S. Ct. 1638 (1986). The “meaningful manner”

requirement has allowed the extension of section 101(a)(1) to reach not

only facially discrumunatory union conduct, but also facially neutral union

rules or acuons that are discruminatory in effect. See, ¢.g., McGinnis, 774

F.2d at 199-203 (invalidating union rule requiring that elections for union

stewards be held in Chicago); Bunz v. Moving Picture Mach. Operators’

Protective Union Local 224, 567 F.2d 1117, 1122 (D.C. Cir. 1977) (strik-

ing down interpretation of union constitution lowenng the percentage of

votes required to secure passage of a special picket assessment from 67%

to 51% after only 59% of the members had voted in favor of the assess-

ment); see also Trail v. International Bhd. of Teamsters, 542 F.2d 961.

966 (6th Cir. 1976) (declining to require dismussal of Michigan members’

claum that failure to submut a “Michigan Rider” for raufication violated

secuon 101(a1) because no factual record had yet been created as to

whether “Riders” ncgouated for other states had been submitted to mem-

bers based in those states). To sever the “meaningful manner” gloss from

the more fundamental “equal treatment” requirement and allow the former

alone to support a claum for violauon of secuon 101(a)(1), however, would

flout both the statutory language and scheme as well as ignore the other

statutory remedies created by Congress to deal with related ills. As we

have explained, secuon 101(a)(1) was not intended to reach all violauons

of umion members’ voung nghts, but only those of a certain type. See also

note 10, infra. The federal courts may not respond to union members’ fail-

ure to bnag the correct statutory acuon by affording a remedy under sec-

uon 101(a1) that 1s not warranted by the facts alleged.

O-22

1766 ACKLEY v. WESTERN CONFERENCE OF TEAMSTERS

B

[7] Finally, Ackley and Cole urge that the withholding of

information from union members during the ratification meet-

ings violated the LMRDA’'s guarantees of freedom of speech

and assembly. As part of their argument, they contend that the

Act requires the passage of a reasonable period of time

between the disclosure of contract terms and the balloting.

Again, however, appellants have failed to establish a depriva-

tion of any nght provided under the LMRDA.

Section 101(a)(2) of the LMRDA guarantees to every union

member “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 any business properly before the meeting.” 29

U.S.C. § 411(a)(2) (1988). It is settled law that the scope of

section 101(a)(2) is not coextensive with that of the first

amendment. United Steelworkers v. Sadlowski, 457 U.S. 102,

108-11, 102 S. Ct. 2339, 2344-45 (1982). Rather, Congress

sought to provide certain basic and fundamental mghts to

union members, while at the same time avoiding undue judi-

cial interference with the mechanics of union self-governance.

Sheldon v. O'Callaghan, 497 F.2d 1276, 1281 (2d Cir.), cert.

denied, 419 U.S. 1090, 95 S. Ct. 681 (1974); see also Caro-

thers, 818 F.2d at 934; Smith, 493 F.2d at 1244. Thus, section

101(a)(2) expressly provides that the rights it guarantees are

“subject to the organization's established and reasonable rules

pertaining to the conduct of meetings.” 29 U.S.C. § 411(a)(2)

(1988).

The courts of appeal have construed section 101(a)(2) to

provide a remedy not only for direct reprisals against dissent-

ers, but also for union conduct that inhibits or threatens dis-

senting speech. Lodge 1380, BRAC, 625 F.2d at 827, Navarro

v. Gannon, 385 F.2d 512, 518 (2d Cir. 1967), cert. denied,

390 U.S. 989, 88 S. Ct. 1184 (1968). However, Ackley and

Cole have made no showing that they or any of their fellow

,

0-23

ACKLEY v. WESTERN CONFERENCE OF TEAMSTERS 1767

union members were denied the Opportunity to express their

views about the proposed collective bargaining agreement, or

discouraged from asking questions about its provisions dunng

the ratification meetings. Instead, they contend that nondisclo-

sure of material information rendered their freedom of expres-

sion illusory. While Ackley and Cole may have had a claim

for a violation of rights guaranteed them under the union con-

sutuuion, and thus grounds for a section 301(a) breach of con-

tract action, see discussion in Section C, infra, we find no

basis for any claim of a violation of the LMRDA.

There are two recognized bases for establishing a union

member's right to information under the LMRDA. First, the

LMRDA specifies that union members are entitled to access

to particular categories of information; a union’s failure to

provide that information to its members is actionable. See,

e.8., 29 U.S.C. §§ 412, 414 (1988). Second. two of Our sister

circuits, in considering appeals relating to membership votes

required by the LMRDA, have held that unions must furnish

Sutficient information to allow members exercising a

Statutory right to vote to do so in a meaningful manner.

Blanchard v. Johnson, 532 F.2d 1074, 1078-79 (6th Cir.

1976), cert. denied, 429 U.S. 834, 97 S. Ct. 100 (1976), and

429 U.S. 869, 97 S. Ct. 180 (1976); Sheldon v. O'Callaghan,

497 F.2d 1276, 1282 (2d Cir.), cert. denied, 419 U.S. 1090,

95 S. Ct. 681 (1974). The case before us does not fall in

either category.

*Blanchard involved a challenge to the manner in which a local union

had conducted an affiliation referendum. The distnct coun treated the vote

as 4 union election, which is required by section 401 of the LMRDA, 29

U.S.C. § 481 (1988), and held that secuon 101(a) guaraniced union mem-

bers the nght to a meaningful vote in umion elecuons. $32 F.2d at 1076.

The Sixth Circuit did not disagree with this charactenzauon. /d. at 1078.

In Sheldon, the Second Circuit held that union members who opposed

amendments to the union consutution were entitled to the Opportunity to

present theur views to the membership. 497 F.2d at 1282. Because the vote

was conducted by mail referendum and no meeung was held to discuss the

amendments, the court held that the union was required to afford the dis-

O-24

1768 ACKLEY v. WESTERN CONFERENCE OF TEAMSTERS

[8] We note that even the first amendment does not contain

a requirement that adequate information be provided to ensure

that citizens will be enabled to cast enlightened or educated

votes in public elections. However, we need not decide here

whether we agree with our two sister circuits that meaningful

information is necessary when the LMRDA requires that

union members be permitted to vote on a particular subject,

such as the election of officers." As we have previously

explained, “[{a]lthough the LMRDA guarantees members the

right to vote in union elections, it does not guarantee them the

right to vote on” other questions not covered by the statute.

Stelling v. International Bhd. of Elec. Workers, 587 F.2d

1379, 1385 (9th Cir. 1978), cert. denied sub nom. Darby v.

International Bhd. of Elec. Workers, 442 U.S. 944, 99 S. Ct.

2890 (1979). Specifically, the LMRDA does not require that

union members be given the opportunity to ratify collective

bargaining agreements negotiated by their bargaining repre-

sentatives. That nght is provided, if at all, by the union's con-

stitution or bylaws. Alexander, 624 F.2d at 1240,

Confederated Independent Unions v. Rockwell-Standard Co.,

465 F.2d 1137, 1140 (3d Cir. 1972). Even if section 101(a) of

the LMRDA is construed as including a full information

requirement when membership votes are required by other

provisions of the LMRDA, we see no justification for extend-

senung members some other means of disseminating their views. /d. at

1282-83. There is no specific statutory mght to ratify amendments to the

union constitution; however, union constitutions, unlike collective bar-

gaining agreements, contain many provisions that are specifically regu-

lated by the LMRDA, including the assessment of dues and the clection

of officers.

The Blanchard and Sheldon courts discussed the right to a

“meaningful vote” in the context of section 101(a)(1). We do not unoder-

stand how the language of this provision, which sumply guarantees “equal

rights and privileges” to all union members, can be read to include such

a mght. 29 U.S.C. § 41 1(a1) (1988). If such a right exists, and we do Dot

decide this question here, a more likely source for that mght than secuon

101(aX 1) is the broader guarantees of freedom of expression and partici-

pation contained in section 101(a)(2).

0-25

ACKLEY v. WESTERN CONFERENCE OF TEAMSTERS 1769

ing that rule to membership votes that, under the LMRDA.

need not be conducted at all. It is the union's rules, not the

LMRDA, that determine whether a contract ratification vote

must be held. Therefore, it is the union's rules, not federal

law, to which we must look when determining how the vote

must be conducted, including any questions regarding what,

if any, information must be afforded to union members during

the contract ratification process. In short, it is the breach of

the union's internal rules that must serve as the basis for any

complaint that insufficient information was provided to the

membership pnor to or at the time of ratification of a contract.

Section 101(a) of the LMRDA affords no remedy for such a

breach.

i

Our decision today does not leave union members without

nghts in contract ratification cases, nor does it deprive them

of a federal remedy for a union's failure to abide by the rules

governing the ratification process. If the union's constitution

or bylaws affords members the nght to ratify a labor-

management contract — and almost all do — that right is pro-

tected by federal law. However, the federal law that applies

is of a different character than the LMRDA.

[9] Section 301(a) of the LMRA authorizes the federal

courts to hear “[s]Juits for violation of contracts between an

employer and a labor organization ... or between any such

labor organizations.” 29 U.S.C. § 185(a) (1988). A union con-

Stitution is considered a contract between the union and its

members, and a member or members may sue the union under

section 301(a) for breach of that contract. Wooddell v. Inter-

national Bhd. of Elec. Workers, __ US. citiman he oe GD. OK,

499 (1991); United Ass'n of Journeymen v. Local 334, 452

U.S. 615, 619-27, 101 S. Ct. 2546, 2549-53 (1981); Kinney v.

International Bhd. of Elec. Workers. 669 F.2d 1222, 1229 (9th

Cir. 1981). Unless union members allege a denial or infringe-

ment of a specific right provided them in the LMRDA, it is

0-26

1770 ACKLEY v. WESTERN CONFERENCE OF TEAMSTERS

this federal statutory remedy that they must pursue when they

contend that nghts guaranteed them by their union's constitu-

tion or bylaws have been infringed." Here, although the

Teamsters constitution provides a nght to vote on contract rat-

ification and the nature and extent of that right is subject to

union regulation, Ackley and Cole failed to allege any viola-

tion of the union's rules and failed to plead any cause of

action for such breach.

When union members allege a deprivation of rights guaran-

teed them by the union's constitution or bylaws, they must

exhaust whatever internal remedies the union affords prior to

bringing suit against the union. Clayton v. International

Union, UAW, 451 U.S. 679, 688, 101 S. Ct. 2088, 2094-95

(1981) (exhaustion requirement applies to “disputes arising

over internal union matters such as those involving the inter-

pretation and application of a union constitution”) (emphasis

in original); Buzzard v. Local Lodge 1040, Int'l Ass'n of

Machinists, 480 F.2d 35, 41 (9th Cir. 1973). Most, if not all,

international union constitutions specify procedures for appeal

to the international from adverse decisions by local union

officials. Aggrieved members and unions alike benefit from

exhaustion requirements, because such requirements encour-

age unions to regulate their own conduct. Bise v. [International

Bhd. of Elec. Workers, 618 F.2d 1299, 1303 (9th Cir. 1979),

cert. denied, 449 U.S. 904, 101 S. Ct. 279 (1980). When a

breach of the union constitution is alleged, an exhaustion

requirement allows the international union to issue the author-

itative interpretation of that document, as is its prerogative.

The union is better equipped than the courts, for example, to

‘As we have explained in Part IV, in some cases union members may

also sue the union under section 301(a) of the LMRA, 29 U.S.C. § 185(a)

(1988), for a breach of the duty of fair representation. See Acri v. Interna-

tional Ass'n of Machinists, $95 F. Supp. 326, 333-34 (N.D. Cal. 1983)

(denying motion to amend pleadings to add a cause of action under section

101(a)(1) of the LMRDA), aff'd, 781 F.2d 1393 (9th Cir.), cert. denied,

479 U.S. 816, 107 S. Cv 73 (1986). Ackley and Cole stated a claun for

breach of that duty, but failed to establish a right to relief.

0-27

ACKLEY v. WESTERN CONFERENCE OF TEAMSTERS 1771

decide whether a constitutional provision for membership rat-

ification of labor-management contracts requires that the

membership be given advance notice of the terms of the pro-

posed agreement, or whether a particular method of balloting

should be used. The international’s president or executive

board can issue rulings and thereby establish a body of deci-

sional law. If the intemal procedures have been exhausted but

a remedy has not been afforded for the alleged wrong, or if

the court deems the union's internal procedures inadequate,

Bise, 618 F.2d at 1303-04, then and only then may the

aggneved union member or members seek a remedy under

section 301(a). Even then, courts considering section 301 (a)

Suits will accord great deference to the union's interpretation

of its own rules.

Congress's decision to leave the determination of whether

and how contract ratification votes must be conducted to the

unions reflects an understanding of the complexities of the

contract negotiation process. Time is of the essence during

contract negouation and ratification; a few days may mean the

difference between an amicable resolution of labor-

management differences and a bitter and extended strike.

Similarly, when a strike is in progress, if it cannot be ended

by a quick ratification vote conducted immediately after a ten-

tative agreement is reached, both sides may suffer serious and

even uteparable economic injury — economic injury that

both would desperately wish to avoid. Unlike other elections,

a contract ratification vote cannot be scheduled in advance, or

set for some pre-established date. No one knows until an

agreement is reached whether or when negotiators will arrive

at a contract. Because there may be an urgent need for speedy

ratification, there may not be an Opportunity for full argument

on each of the provisions of the contract. In addition, ratifica-

tion procedures must be tailored to the unique characteristics

and needs of each union. Some unions span large geographic

areas, while others are purely local in nature. The members of

some unions work at fixed locations; in other unions, mem-

bers spend a considerable amount of their working time on the

Q-28

1772 ACKLEY v. WESTERN CONFERENCE OF TEAMSTERS

road or in the air. As a result of these and other differences,

some groups of union members may prefer that the union hold

ratification meetings, while others may opt for a mail ballot-

ing procedure. Neither of these procedures is ideal. Mai! bal-

loting may impede full debate on important issues, while an

open meeting procedure may preclude the type of review of

the entire contract that might otherwise be desirable. The indi-

vidual unions are better suited than the courts to the task of

determining what is best for their members — when and

under what circumstances ratification votes are appropriate

and what procedures are best suited to their members’ needs

and work schedules.

We do not mean the foregoing discussion to suggest in any

way that union democracy is unimportant or that federal labor

law accords unions virtually unlimited power to define inter-

nal policies and procedures by fiat. Rather, we believe that it

demonstrates just the opposite. The legislative scheme estab-

lished by Congress comprises three distinct, yet complemen-

tary, mechanisms designed to ensure the protection of the

rights of union members and the democratic self-governance

of unions by those members. The LMRDA establishes certain

absolute principles to which all unions must adhere and

affords certain fundamental rights to all union members, the

LMRA provides union members with a means of holding

their own union to the promises it has made and the proce-

dures that it has created; and the LMRA also affords union

members a right to sue their union for breach of its duty of

fair representation. With respect to Congress's decision to

leave the task of defining internal union procedures to unions

in the first instance, that arrangement does not inhibit union

democracy, but rather fosters it. “* ‘Democratic processes atro-

phy when they are not exercised; union members will have noe

interest in improving their organizations’ internal adjustment

procedures if they never are required to use them.”

Wiglesworth v. Teamsters Local Union No. 592, 552 F.2d

1027, 1031 (4th Cir. 1976) (quoting Aaron, The Labor-

Management Reporting and Disclosure Act of 1959, 73 Harv.

OQ-29

Acktiy vo Wisttkn COoNteRENCE OF TEAMSTERS 1773

L. Rev. 851, 869 (1960)), cert. denied, 431 U.S. 955,97 S. Ct.

2676 (1977). Although union members must pursue their

grievances though established channels, it is the union mem-

bers who wield the ultimate power to shape union policies and

procedures to their liking, through their statutorily guaranteed

rights to elect union officials and to certify collective bargain-

ing representatives.

(10) In summary, federal labor law provides a comprehen-

sive remedial framework to address violations of nghts guar-

anteed to union members by statute or by the union

consutution or bylaws. Different procedures may be applica-

ble depending on whether it is the former or the latter that is

the source of the right at issue. Section 101(a) is Only one part

of the statutory framework. Congress did not intend that the

section address every conceivable violation of union mem-

bers’ mghts or authorize the federal courts to determine in

every case what procedures best ensure union democracy. We

will not read the provision in a manner that Congress clearly

did not intend. Because Ackley and Cole do not allege any

breach of the union's internal rules, we do not decide whether

they have established such a breach and, if so, whether they

ure entitled to relief under section 301(a).

VI

(11) Although appellants’ substantive claims are meritless.

we find no basis in law for the district court's award of attor-

neys’ fees to WCT and Local Union 692. Appellees contend

that the award is firmly founded in the common benefit the-

ory, which permits fee-shifting in cases where the litigation

“confers “a substantial benefit on the members of an ascer-

tainable class, and where the court's jurisdiction over the sub-

ject matter of the suit makes possible an award that will

Operate tO spread the costs proportionately among them.’ ”

Hal v. Cole, 412 U.S. 1, 5, 93 S. Ct. 1943, 1946 (1973)

(extending the common benefit theory to cases brought under

the LMRDA) (quoting Mills v. Electric Auto-Lite Co., 396

0-30

1774 ACKLEY v. WESTERN CONFERENCE OF TEAMSTERS

U.S. 375, 393-94, 90 S. Ct. 616, 626 (1970)). We strongly

disagree. The rationale for a “common benefit” award is

entirely inapplicable to cases in which a union defendant pre-

vails against a member's or members’ claim for relief under

the LMRDA.

The common benefit theory permits successful individuals

who have benefited fellow members of a class to compel

those members to share the costs of obtaining the benefits

they have received. In the ordinary common benefit case

involving a union, reimbursement from the union treasury

serves to shift the cost of litigation from the individual litigat-

ing member to the union’s dues-paying membership as a

whole. /d. at 8-9, 93 S. Ct. at 1948. The same is true with

respect to other unsuccessful group defendants (or conceiv-

ably in some circumstances unsuccessful group plaintiffs). No

fee-shifting is necessary, however, when a union successfully

defends against a member's claim for relief under the

LMRDA, because the dues-paying union members, who are

the beneficiaries of the litigation, are already bearing the cost.

Were plaintiffs to be assessed attomeys’ fees, the costs would

be shifted away from the common beneficiaries. Equally

important, in our view, is the fact that the mere prospect of

such an award would “chill union members in the exercise of

their statutory nght to sue the union.” Pawlak v. Greenawalt,

628 F.2d 826, 831 (3d Cir. 1980), cert. denied, 449 U.S. 1083,

101 S. Ct. 869 (1981). Congress* central purpose in enacting

the LMRDA was to secure certain fundamental nights to

union members and provide them with a remedy against their

infringement. United Steelworkers v. Sadlowski, 457 U.S.

102, 109-11, 102 S. Ct. 2339, 2344-45 (1982). Extending the

common benefit theory in the manner suggested by appellees

would be contrary to this objective.

[12] Nor can the district court's award of attorneys’ fees to

WCT and Local Union 692 be justified on any other ground.

In general, determination of the circumstances in which attor-

neys’ fees may be awarded is the exclusive prerogative of

O-31

ACKLEY v. WESTERN CONFERENCE OF TEAMSTERS 1775

Congress. Alyeska Pipeline Serv. Co. v. Wilderness Soc’ y, 42]

U.S. 240, 260-63, 95 S. Ct. 1612, 1623-24 (1975). A federa!

court may, however, award attomeys’ fees not only when the

common benetit exception applies but also when the case falls

within one of the other two longstanding, judicially created

exceptions to the general rule against fee-shifting: willful dis-

obedience of a court order and bad faith or abusive litigation.

fd. at 258-59, 95 S. Ct. at 1622. In the case before us. there

is no allegation that Ackley and Cole willfully disobeyed a

court order or acted in bad faith. “(T]he federal courts cannot,

absent specific statutory authority or one of the three enumer-

ated exceptions listed by the Supreme Court, alter the uniform

system of cost-beuring created by Congress, or shift attor-

neys’ fees merely because a party has lost a case or offended

some legal norm.” Zambrano v. City of Tustin, 885 F.2d 1473,

1481 (9th Cir. 1989) (footnote and citation omitted). The

union defendants’ request for attorneys fees was not within

the district court’s authority to grant. Accordingly, the judg-

ment of the district court is

AFFIRMED IN PART AND REVERSED IN PART.