Opposition Brief — American Federation of Government Employees v. Martinez

RILES |

JUN 11993 =|

TREICE OF TRE ae)

In the Supreme Court of the Gnited States

OCTOBER TERM, 1992

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,

ET AL., PETITIONERS

v.

RAMIRO MARTINEZ, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

BRIEF FOR THE FEDERAL RESPONDENT

IN OPPOSITION

DREw S. Days, III

Solicitor General

Department of Justice

Washington, D.C. 20530

(202) 514-2217

THOMAS S. WILLIAMSON, JR.

Solicitor of Labor

ALLEN H. FELDMAN

Associate Solicitor

STEVEN J. MANDEL

Deputy Associate Solicitor

MARK S. FLYNN

Senior Appellate Attorney

Department of Labor

Washington, D.C. 20210

s, Erne chee y

: ait

QUESTION PRESENTED

Whether a federal district court has jurisdiction under

the Labor-Management Reporting and Disclosure Act

over a federal employee’s claims involving his right to

union office, where the union admits members who are

employed in both the public and private sector.

TABLE OF CONTENTS

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TABLE OF AUTHORITIES

Cases:

Berardi v. Swanson Memoria! Lodge No. 48, 920 F.2d 198

Teen cbuuvcabonepereeeceseccccs. 11

Brotherhood of Locomotive Firemen & Enginemen v.

Bangor & Aroostook R.R., 389 U.S. 327 (1967) ........... 18

Bush v. Lucas, 462 U.S. 367 (1983) ..2.....ccccc.-- 0050-00. 17

Carter v. Gibbs, 909 F.2d 1452 (Fed. Cir.). cert. denied,

498 U.S. 811 (1990)

Donovan v. CSEA Local Union 1000, 784 F.2d 98 (2d

Cir.), cert. denied, 479 U.S. 817 (1986) ......... ; 11

Hawaii Gov't Employees Ass’n, Local 152 v. Martoche.

910 F.20 718 (D.C. Cir. 1990) ..............0....0066............... 1]

Hester v. International Union of Operating Eng’rs, 818

F.2d 1537 (1987), reaffd after remand, 878 F.2d 1309

(11th Cir. 1989), cert. denied, 494 U.S. 1079 (1990) ...... ii. 12.

15-16

Karahalios v. National Federation of Federal Employees,

Local 1263, 489 U.S. 527 (1989) .......ccccccccccccccccceccceeeee. 13, 17

Kennedy v. Metropolitan Suburban Bus Auth. 102

L.R.R.M. (BNA) 2088 (E.D.N.Y. 1979) ................. bene 11

Laity v. Beatty, 766 F. Supp. 92 (W.D.N.Y. 1991). affd.

956 F.2d 1160 (2d Cir. 1992) ...........0.......000..06............ 11, 14. 16

Local 1219, AFGE vy. Donovan, 683 F.2d 511 (D.C. Cir.

Tana eRe Seca sescevadnadanardeierccs renee liMihddntabecentecasuais {

Local 1498, AFGE vy. AFGE, 522 F.2d 486 (3d Cir

ARNE GSLLSaLsd vonwhakusaasavanccesconsasecessacancasceeces, 1]

(IIT)

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Cases—Continued: Page

Local No. 82, Furniture & Piano Moving v. Crowley, 467

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Morton v. Mancari, 417 U.S. 535 (1974) ....... eee eee 14

NEA v. Marshall, 100 L.R.R.M. (BNA) (D.D.C. 1979) ... 11

New Jersey County & Mun. Council #61 v. AFSCME, 478

F.2d 1156 (3d Cir.), cert. denied, 414 U.S 975 (1973) .... 1]

United States v. Fausto, 484 U.S. 489 (1988) .................. 13, 17

Watt v. Alaska, 451 U.S. 259 (1981) ...........cccccccsssccesescees i4

Wright v. Baltimore Teachers Union, 369 F. Supp. 848

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Statutes and regulations:

Federal Service Labor-Managment Relations Act, Tit.

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Labor-Management Reporting and Disclosure Act of 1959,

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Regulations—Continued:

29 C.F.R::

RO GN BING) aistnesnccntectesessenss

I SoA cued eeaistenwscsdeisacendsenseiabncts

NE Ec cedsaneinaneesinn

Sections 458.54-458.57

Section 458.58

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Sections 458.63-458.66

Section 458.64(b) ...............

Se ieekeneanenakie

Section 458.88

Section 458.91

Section 458.92

Miscellaneous:

57 Fed. Reg. (1992):

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§In the Supreme Court of the United States

OCTOBER TERM. 1992

No. 92-1640

AMERICAN FEDBRATION OF GOVERNMENT EMPLOYEES.

ET AL., PETITIONERS

v.

RAMIRO MARTINEZ. ET AL

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

BRIEF FOR THE FEDERAL RESPONDENT

IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. la-8a)

is reported at 980 F.2d 1039. The opinion of the

district court (Pet. App. 9a-13a) is unreported.

JURISDICTION

The judgment of the court of appeals was entered on

January 12, 1993. The petition for a writ of certiorari

was filed on April 12, 1993. This Court’s jurisdiction

is invoked under 28 U.S.C. 1254(1).

(1)

STATEMENT

l.a. The Labor-Management Reporting and Disclo-

sure Act of 1959, 29 U.S.C. 401 et seg., was Congress’s

first major attempt to regulate the internal affairs of

labor unions. See generally Local No. 82, Furniture

& Piano Moving v. Crowley, 467 U.S. 526 (1984). The

Act defines covered “[l]abor organization[s]” as

organizations in an industry affecting commerce in

which employees participate and which deal with

“employers” concerning terms and conditions of

employment. 29 U.S.C. 402(i). The Act expressly

excludes from its definition of employer “the United

States or any corporation wholly owned by the

Government of the United States or any State or

political subdivision thereof.” 29 U.S.C. 402(e). Con-

sistent with the statutory definitions, Department of

Labor regulations provide that a union is outside the

L.MRDA’s scope only if it represents solely gov-

ernment workers and does not deal with a private

employer concerning the terms and conditions of

employment. See 29 C.F.R. 451.3(a)(4).

Title I of the LMRDA provides union members

with an extensive “bill of rights” guaranteeing to

each member equal rights to vote and otherwise par-

ticipate in union decisions, freedom from unreason-

able restrictions on speech and assembly, and

procedural safeguards against improper discipline.

See 29 U.S.C. 411. Title I rights are enforceable by

private actions brought by union members against

labor organizations in federal district court. 29

U.S.C. 412.

Title [V of the Act is concerned with the election of

officers of labor organizations. It requires periodic

election of union officers and prescribes minimum

standards to ensure that such electiors are fairly

conducted. See 29 U.S.C. 481. Title IV enforcement

authority resides with the Secretary of Labor: a

union member, after exhausting (or pursuing for

three months) available internal union remedies, may

file a complaint with the Secretary challenging an

election. 29 U.S.C. 482(a). The Secretary then must

investigate the complaint and, if he finds probable

cause to believe that a violation has occurred, file suit

in federal district court seeking a new election. See

29 U.S.C. 482(b). With only one exception not

applicable here, see 29 U.S.C. 481(c), there is no

provision for a private cause of action under Title IV.

b. The Civil Service Reform Act of 1978 (CSRA)

comprehensively overhauled the federal civil service

system. Title VII of the CSRA, also known as the

Federal Service Labor-Management Relations Act, 5

U.S.C. 7101 et seq., governs federal sector labor-

management relations, including the activities of

recognized labor organizations. Title VII covers

“labor organization[s]” “composed in whole or in part

of employees, in which employees participate and pay

dues,” and which deal with federal agencies concern-

ing grievances and conditions of employment. 5

U.S.C. 7103(a)(4); see also 5 U.S.C. 7103(a}(2) (def-

inition of employee), 7103(a)(3) (definition of agency).

Section 7120 of Title VII permits government

agencies to recognize labor organizations only if they

hold periodic elections subject to prescribed safe-

guards, and if they assure that their members will

have the right to participate in the affairs of the union

and will receive fair and equal treatment under its

governing rules and fair process in disciplinary

proceedings. 5 U.S.C. 7120(a). The Act authorizes

the Department of Labor’s Assistant Secretary for

Labor-Management Standards to prescribe regula-

tions implementing those standards of conduct, and

provides that such regulations shall conform gen-

erally to principles applied in the private sector. 5

U.S.C. 7120(d).'. Accordingly, the Assistant Secre-

tary has promulgated a bill of rights for union

members that is virtually identical to the bill of

rights in Title I of the LMRDA. 29 C.F.R. 458.2. He

also has specified that periodic elections shall be

conducted in a “fair and democratic manner” and shall

be governed by the election provisions of Title [V of

the LMRDA to the extent relevant. 29 C.F.R. 458.29.

Although the substantive provisions of 5 U.S.C.

7120 and its accompanying regulations parallel the

IL.MRDA’s provisions, the forum for enforcement is

different. Local 1219, AFGE v. Donovan, 683 F.2d

oll, 515 n.138 (D.C. Cir. 1982). Complaints with

respect to any violation of 5 U.S.C. 7120—including

both “bill of rights” and election violations—are to be

filed with the Assistant Secretary. 5 U.S.C. 7120(d).

Upon receiving a complaint, the Department conducts

an investigation; if there is merit to the allegation,

the case proceeds to a hearing before an admin-

istrative law judge (ALJ). 29 C.F.R. 458.54-458.57,

158.63-458.66. The ALJ is authorized to recommend a

decision to the Assistant Secretary who, if he

sustains the complaint, iS empowered to order the

labor organization to cease and desist from the

As of November 1, 1992, the responsibilities of the Assis

tant Secretary for Labor-Management Standards under 5

U.S.C. 7120 were transferred to the Department of Labor's

Assistant Secretary for Employment Standards. See 57 Fed

Reg. 53,514, 53,516 (1992).

violation and to take other appropriate remedial

action. 29 C.F.R. 458.88, 458.91. Ifa labor organiza-

tion refuses to comply with the order, the Assistant

Secretary may apply to the Federal Labor Relations

Authority (FL RA) for enforcement of the order. 29

C.F.R. 458.92; 5 C.F.R. Pt. 2428 (F LRA regulations).

Orders of the F I.RA are reviewable in the courts of

appeals. 5 U.S.C. 7123.

In cases in which the investigation shows that the

complaint lacks merit, the Department dismisses the

case without referring it to an ALJ for a hearing. 29

C.F.R. 458.58, 458.64(b). The complainant may obtain

review of sucha a before the Assistant Secre-

tary. 29 C.F.R. 458.59, 458.64(c).

2. Petitioners are the American Federation of

Government Employees (AFGE), two of its national

officers, and the presidents of three local AFGE

unions. Pet App. 4a. AFGE is a federation of more

than 1,000 local labor organizations that represent

almost 700,000 employees. Pet. App. 2a. The parties

stipulated that some of those locals represent private

sector employees. Local 1617, an AFGE affiliate, is

the exclusive bargaining representative for federal

employees in recognized bargaining units at Kelly

Air Force Base in San Antonio, Texas; Local 1617

does not represent any private sector employees.

[bid.

Respondent Ramiro M. Martinez, a federal em-

ployee, was the President of Local 1617 when the

events underlying this action began. On January 3

1989, petitioner Peterson, then AFGE National Vice

President, ordered an investigation of a complaint

that Martinez had sold a list of Local 1617 members’

names and addresses to an insurance company. Pet.

6

App. 3a. On March 28, 1989, based on the results of

that investigation, petitioner Sturdivant, the AFGE

President, found probable cause to believe that

respondent had accepted money in exchange for the

membership list. Sturdivant determined that a fair

and impartial trial could not be conducted by Local

1617, and he therefore appointed a trial committee

composed of the presidents of three other AFGE

locals. Jd. at 2a-8a.

After a hearing, the trial committee found that

respondent had accepted monetary consideration in

exchange for the list and that he had not acted in a

responsible manner. Pet. App. 10a. The committee

therefore concluded that Martinez had violated the

union constitution, and it recommended that he be

removed from the presidency of Local 1617 and

thereafter be barred from any union office for a period

of three years. On August 24, 1989, AFGE President

Sturdivant accepted the trial committee’s findings

and recommendations and ordered Martinez’s imme-

diate removal and three-year debarment. /d. at 3a.

In the interim, on February 8, 1989, Local 1617 held

its regularly scheduled election of officers, and

Martinez was reelected as local president. Pet. App.

3a, 10a. Shortly thereafter, six unsuccessful candi-

dates for office in that election filed protests with the

Local 1617 Election Committee, alleging that certain

candidates were afforded access to Local 1617’s news-

paper, while others were denied that opportunity.

The Election Committee dismissed the protests, and

two candidates filed appeals with AFGE Vice Presi-

dent Peterson, who initiated an investigation of the

election. Based on the results of the investigation,

Peterson ordered a new election. /d. at 3a. AFGE

—

President Sturdivant denied Martinez’s appeal of that

decision. Jd. at 10a.

On August 25, 1989, Martinez and other Local 1617

officers filed a complaint with the Department of

Labor, contending that AFGE’s decision to overturn

the February 1989 election and to order a new

election was arbitrary and capricious and politically

motivated, and thereby violated the right of Local

1617’s membership to elect their officers. Pet. App.

sa, 10a. The complaint did not challenge AFGE’s

decision to remove and debar respondent from office.

The Department of Labor conducted an investiga-

tion under its CSRA regulations to determine

whether Local 1617’s election violated 29 C.F.R.

458.29, which, as noted above, requires federal-sector

union elections to conform to the substantive

requirements of Title IV of the LMRDA. Pet. App.

10a. The Department’s investigative findings were

consistent with AFGE’s determination that union

funds had been applied to enhance the incumbent

officers’ candidacy, and the Department therefore

dismissed the complaint. See 29 C.F.R. 458.64(b). The

Assistant Secretary, on April 24, 1990, affirmed the

dismissal and upheld AFGE’s decision to overturn the

local election. Pet. App. 10a.

1. Meanwhile, on September 7, 1989, while his

CSRA administrative complaint was pending, Mar-

tinez filed this action against petitioners under Title

| of the LMRDA, 29 U.S.C. 412. Pet. App. 4a. He

alleged, inter alia, that petitioners violated the Act

by removing him from local union office, by barring

him from any office for three years, and by invalidat-

ing the February 1989 election. /d. at 3a.

Petitioners moved to dismiss, arguing that the

district court lacked jurisdiction under Section 102 of

the LMRDA, 29 U.S.C. 412, over Martinez’s claims

because they related to a federal sector union and

thus must be adjudicated under the administrative

scheme provided by Title VII of the CSRA. The

Acting Assistant Secretary intervened in the suit

and moved to dismiss on the same ground. Pet. App.

4a-5a.

The district court granted the motions to dismiss.

Pet. App. 9a-18a. Because Title VII of the CSRA is

“the controlling authority for resolving issues

involving labor relations in the public sector,” the

court found the relevant question to be “whether

[Martinez] is an employee of the Federal Government

and whether his claim involves rights and obligations

covered by thiat] statute.” Pet. App. lla. The court

held that Martinez is a federal government employee

because he is an “individual employed in an agency,” 5

U.S.C. 7105(a)(2)(A)—2.e., in the Department of the

Air Force at Kelly Air Force Base. Pet. App. Ila.

The ‘court further determined that AFGE and Local

1617 are “labor organizations” covered by the CSRA,

see 5 U.S.C. 7103(a)(4), because they are composed in

whole or part of federal employees and they deal with

federal agencies concerning grievances and condi-

tions of employment. Pet. App. 18a.

The court next held that Martinez’s complaint

involved rights and obligations covered by the CSRA,

because his allegation that AFGE unfairly removed

and barred him from union office stated a violation of

the requirement in 5 U.S.C. 7120(a) that labor organi-

zations provide “fair process in disciplinary proceed-

ings.” Pet. App. 13a. The court similarly ruled that

v

Martinez’s allegations of impropriety in AFGE’s

nullification of the February 8, 1989, election stated a

violation of 5 U.S.C. 7120(a)’s mandate that labor

organizations conduct “periodic elections * * *

subject to recognized safeguards.” Pet. App. 13a.

Ruling that the CSRA applies to Martinez’s claims.

the court concluded that it was “compelled to dismiss

|Martinez’s] Complaint as the CSRA’s comprehensive

statutory scheme precludes judicial review of the

[pllaintiffs claims. Karahalios v. National Feder-

ation of Federal Employees, Local 1263, 109 S. Ct.

1282, 1286 (1989).” Pet. App. 13a.

5. The court of appeals reversed and remanded.

Pet. App. la-8a, holding that the LMRDA definitional

provisions control the jurisdictional question. While

noting that there is some “overlap” between the

CSRA and the LMRDA, id. at 4a n.1, the court

concluded that the question in this case “is not

whether the CSRA provides a remedy, but whether

the LMRDA provides one.” /d. at 5a n.2. On that

issue, the court reasoned that the LMRDA grants

federal courts jurisdiction over disputes between a

union and its members if the union is a “labor

organization” within the meaning of the LMRDA.

Pet. App. 2a, 5a-6a (citing 29 U.S.C. 411, 412)2 The

L.MRDA defines a “labor organization” as any orga-

nization of employees that deals with a statutory

“employer” regarding specified subjects, 29 U.S.C.

402(i), and an “employer” includes any employer

except the United States or a State or political

The court of appeals observed that it was undisputed that

at least some of the rights asserted by Martinez—the rights to

vote and otherwise to participate in union affairs—are pro-

tected by the LMRDA. Pet. App. ba.

10

subdivision of a State, 29 U.S.C. 402(e). The court

concluded that a union is therefore covered by the

LMRDA if it deals with employers other than

governmental bodies, even if it also deals with

governmental employers. Pet. App. 6a-7a.

The court noted that in this case, AFGE had

stipulated that in addition to representing federal

employees, it also “represented” employees of private

sector employers. Pet. App. 7a. The stipulation was

unclear, however, as to whether AFGE “deallt] with”

private sector employers “concerning grievances,

labor disputes, wages, rates of pay, hours, or other

terms or conditions of employment,” 29 U.S.C. 402(i),

which is necessary for AFGE to be a “labor

organization” under the LMRDA. See Pet. App. 7a.

The court of appeals therefore remanded the case to

the district court with instructions to determine

whether AFGE “dealt with” private sector employers

concerning those topics. If it did, the court of appeals

instructed, the case should proceed; if not, the district

court should dismiss the complaint. /bid.

The court noted that, unlike the national AFGE,

Local 1617 is excluded from coverage under the

LMRDA because it is an organization composed

solely of federal government employees. Pet. App. 6a

n.3. The court concluded that that exclusion was

irrelevant, however, because AFGE is the sole union

defendant in the case and its actions are the subject of

the suit. /bid. In addition, the court explained that

under its holding a federal employee may sue under

the LMRDA only if his union happens to deal with

private employers concerning terms and conditions of

employment. Jd. at 8a. That holding, the court

reasoned, merely ensures that all members of a

1]

national union, whether in the private sector or in

government employment, have the same rights with

respect to that union. Jbid.

ARGUMENT

The court of appeals’ interlocutory holding that

Martinez’s claims arising out of his removal from

union office may be cognizable under the Labor-

Management Reporting and Disclosure Act does not

conflict with any decision of this Court or any court

of appeals. Review by this Court therefore is

unwarranted.

1. The court of appeals held that the district court

has jurisdiction under the LMRDA if AFGE deals

with private sector employers (as weil as federal]

agencies) concerning the terms and conditions of its

members’ employment. In so ruling, the court of

appeals correctly recognized the general LMRDA

principle that a “mixed union”—one that represents

both government and private employees—falls within

the scope of the LMRDA’s coverage provisions.’ That

See Berardi v. Swanson Memorial Lodge No. 48, 920 F.2d

198, 201 (3d Cir. 1990); Hawaii Gov’ Employees Ass’n. Loca!

152 v. Martoche, 915 F.2d 718, 720 (D.C. Cir. 1990); Hester v.

International Union of Operating E'ng’rs, 818 F.2d 1537, 1541-

1543 (11th Cir. 1987) (per curiam), reaffd after remand, 878

F.2d 1309 (1989), cert. denied, 494 U.S. 1079 (1990): Donovan V.

CSEA Local Union 1000. AFSCME, 784 F.2d 98, 100 (2d Cir.),

cert. denied, 479 U.S. 817 (1986): New Jersey County & Mun

Council #61 v. AFSCME, 478 F.2d 1156, 1157-1158 (3d Cir.).

cert. denied, 414 U.S. 975 (1973): Laity v. Beatty, 766 F. Supp

92, 98 (W.D.N.Y. 1991), aff'd, 956 F.2d 1160 (2d Cir. 1992)

(table); Ken nedy v. Metropolitan Suburban Bus Auth.. 102

L.R.R.M. (BNA) 2088. 2091 (E.D.N.Y. 1979); NEA v. Mar

shall, 100 L.R.R.M.(BNA) 2565 (D.D.C. 1979). Cf. Local 1498,

AFGE v. AFGE, 522 F.2d 486, 489-490 (3d Cir. 1975) (national

12

principle flows, as the court of appeals explained, Pet.

App. 6a-7a, from a plain reading of the LMRDA’s

definitional provisions. The LMRDA defines a labor

organization by reference to the employers with

which it deals. By defining the term “employer” to

include any private sector employer, the LMRDA

excludes only those unions that deal exclusively with

governmental employers. See 29 U.S.C. 402(e), (i); 29

C.F.R. 451.3(a)(4).4

Before the court of appeals, the Assistant Secre-

tary argued that, even though AFGE is a defendant,

the case should be resolved under the CSRA because

Martinez’s claims related primarily to the affairs of

Local 1617, a labor organization that is composed

exclusively of federal employees and that deals only

with a federal agency in representing those employ-

ees. For example, Martinez’s election charges

related to the overturning of the local union election.°

union that limits its membership to, and represents only,

federal government employees is excluded from LMRDA

coverage); Wright v. Baltimore Teachers Union, 369 F. Supp.

848, 850-855 (D. Md. 1974) (a union that represents government

employees exclusively is not covered by the LMRDA).

* In Hester v. International Union of Operating Engineers,

the Eleventh Circuit correctly recognized that the LMRDA’s

definitions do not focus on the employer of the complaining

employee, but rather on whether the defendant labor union

deals with a covered employer on behalf of any member. See

818 F.2d at 1542. If a union is subject to the LMRDA because it

deals with a private employer, “all members, whether em-

ployed by the private or public sector, are protected by the

Act’s bill of rights.” Jd. at n.13.

For this reason, the Assistant Secretary treated Mar-

tinez’s election complaint as stating a complaint under the

CSRA. See p. 7, supra. Even if his election claim is cognizable

Similarly, his claims relating to his discipline for

misconduct primarily focused on his removal from

local union office and on the fact that local union

members were deprived of the elected officer of their

choice. Because those claims arise out of the affairs

of a “purely federal” local union, it seemed reasonable

to review those claims under the CSRA, which was

intended to create a comprehensive scheme to reg-

ulate labor-management relations in the federal

sector. See generally Karahalios v. National Fed’n

of Fed. Employees, Local 1263, 489 U.S. 527 (1989);

United States v. Fausto, 484 U.S. 139, 443 (1988).

The Assistant Secretary also noted below (see C.A.

sr. 19-20 n.10), however, that to the extent that

Martinez’s complaint could be read as asserting a

denial of his rights as a member of the national union

—as is true of his challenge to his debarment from

office in the national union—the district court would

have jurisdiction over the suit under the LMRDA.

That is so because AFGE had stipulated that it

represented both government and non-government

employees, and thus was subject to the LMRDA.

In ruling that the district court has jurisdiction

under the LMRDA if AFGE deals with private sector

employers, the court of appeals disagreed with the

government’s characterization of Martinez’s claims

as relating primarily to the local union. It instead

viewed this case as implicating his rights with

under the LMRDA, however, it cannot be asserted in this Title

I suit because “the exclusivity provision included in § 403 of

Title IV [29 U.S.C. 483] plainly bars Title I relief when an

individual union member challenges the validity of an election

that has already been completed.” Local No. 82 v. Crowl. y, 467

U.S. at 541.

14

respect to the national union. See Pet. App. 6a n.3

(although respondent is a member of a purely federal

local union, that does not “affect his rights under the

LMRDA as a member of the AFGE”) (emphasis

added); id. at 8a (court of appeals’ decision will ensure

that “all members,” both federal and private sector

employees, “have the same rights vis-a-vis their na-

tional union”) (emphasis added). Because Martinez

did suffer a loss of national rights as a result of the

discipline AF'GE imposed on him, the court of appeals’

view is reasonable. As the court of appeals rec-

ognized, however, an action against Local 1617 would

be “an entirely different case,” Pet. App. 6a n.8,

because such an action arises exclusively under the

CSRA. The court of appeals thus recognized CSRA

jurisdiction over unions composed entirely of federal

employees, and therefore respected the congressional

intent underlying the CSRA.

Petitioners argue (Pet. 16) that the CSRA im

pliedly repealed the LMRDA to the extent that the

ILMRDA authorizes claims by a federal employee

against mixed unions. That argument assumes, of

course, that the CSRA applies to claims against

mixed unions in the first place, a proposition contrary

to the view of the Department of Labor. See Laity v.

Beatty, supra, 766 F. Supp. at 96-97.

In any event, petitioners’ argument founders on the

principle that implied repeals are disfavored and will

be recognized only when there is a clear repugnancy

between the two statutes. See Watt v. Alaska, 451

U.S. 259, 266 (1981). Rather, courts should strive

where “‘there are two acts upon the same subject

*** to give effect to both if possible.’” Morton v.

Mancari, 417 U.S. 535, 550-551 (1974) (citation

15

omitted). Here, the LMRDA definitional provisions

and implementing regulations expressly include

mixed unions, and both the text and purposes of the

CSRA ean reasonably be construed in a manner that

accommodates the LMRDA’s coverage of mixed

unions. In the context of a national “mixed union”

and a purely federal local union, consistency between

the two Acts can be achieved, as the Assistant

Secretary argued below, by providing for claims by

federal local members against the national to be

resolved under the CSRA wher the gravamen of the

claim relates to the local’s affairs and the member’s

rights under the local organization. When, however,

the claim relates primarily to the rights of the

member vis-a-vis the national organization—as the

court of appeals viewed Martinez’s claims—it should

be decided under the LMRDA. That approach

recognizes that in enacting the CSRA, Congress

focused on the unique circumstances in the federal

sector and manifested no intent to affect the rights of

private sector employees. See 5 U.S.C. 7101(b) (“the

purpose of this chapter [is] to prescribe certain rights

and obligations of the employees of the Federal

Government and to establish procedures which are

designed to meet the special requirements and needs

of the Government”). It also respects the purpose of

the LMRDA to ensure that all members of a union

that deals with private employers are entitled to the

protections of that Act.® See generally Hester v.

° AFGE’s argument that the CSRA impliedly repealed the

LMRDA would lead to one of two anomalous results. If the

CSRA impliedly repealed the LMRDA as to federal employees,

then claims by a federal employee against a mixed union would

'« heard under the CSRA, even though the same claims against

16

International Union of Operating Engineers, 818

F.2d at 1542 & n.12.

2. Neither this Court nor any other court of

appeals has addressed the relationship between Title

VII of the CSRA and the LMRDA in this setting.

Moreover, the only district court to consider

LMRDA jurisdiction over a complaint by a federal

agency employee against a “mixed” union has ruled,

like the court of appeals here, that jurisdiction is

conferred by the LMRDA. Laity, 766 F. Supp. at 97-

98. Finally, every court to address the LMRDA

jurisdictional provisions in the context of state and

municipal employees has concluded that the LMRDA

applies to unions consisting of both private sector and

governmental employees. See note 3, supra. Thus,

the decision below does not conflict with any decision

of this Court or of any other court.

Petitioners cite (Pet. 7-11) a number of decisions of

this Court and the courts of appeals that emphasize

the exclusivity of the CSRA scheme in matters of

federal employment. As explained above, however,

those decisions do not address rights guaranteed by

the LMRDA. In particular, the decisions of this

Court upon which petitioners rely do not involve the

question whether the CSRA takes precedence over an

express cause of action under another federal statute.

the same union by a fellow member who is a private sector

employee would be heard under the LMRDA. On the other

hand, if the CSRA were deemed impliedly to repeal the

LMRDA so as to place :aixed “federal/private” unions under

exclusive CSRA jurisdiction, private sector employees who

were members of such unions would be required to utilize

CSRA procedures—a result that would go wel! outside the

focus of the CSRA on federal sector problems.

17

See Karahalios, supra (CSRA does not confer on

federal employees an implied private right of action

against a union for breach of duty of fair rep-

resentation); Fausto, 484 U.S. at 453-454 (absence of

provision in CSRA for administrative and Judicial

review of adverse personnel action alters “impli-

cation” of Back Pay Act that Court of Claims is

appropriate authority to review agency s personnel

determination); Bush v. Lucas, 462 U.S. 367, 388-390

(1983) (in light of elaborate civil service remedial

scheme, Court will not imply cause of action for

damages for constitutional tort).”

In any event, further review is unwarranted at this

time because the court of appeals’ jurisdictional

ruling is interlocutory. AFGE stipulated that it

represented some non-governmental employees. It

argued to the court of appeals, however, that even

though it admits as members some persons who work

in the private sector, it does not “deal with their

private employers” and has no contracts with such

employers. Pet. App. 7a. The court of appeals

remanded the ease to the district court to resolve

whether AFGE indeed deals “with any private sector

Petitioners cite Carter v. Gibbs, 909 F.2d 1452 (Fed. (

(en banc), cert. denied, 498 U.S. 811 (1990). as establishing that

“the preemptive effect of the CSRA reaches federal statutes

which otherwise expressly authorize suits by federal employ

ees.” Pet. 11. In that case, the Federal Circuit held that fed

eral employees could not assert claims for overtime compensa

tion under the Fair Labor Standards Act where their collective

bargaining agreement did not exclude those claims from its

grievance procedure. The court’s holding was based in large

measure on a specific provision, 5 U.S.C. 7121(a), pert aoe to

the exclusivity of grievance procedures that is not applicable

this case. See 909 F.2d at 1455.

employers on behalf of its members concerning the

terms and conditions of employment.” /bid. Should

petitioners establish, as they maintain, that AFGE

does not deal with private employers, this LMRDA

action will be dismissed for lack of jurisdiction and

petitioners will have no need for review by this Court.

On the other hand, if AFGE is found to represent

private sector employees with respect to their terms

and conditions of employment, petitioners may seek

review in this Court in due course, based on a more

complete record. There is, accordingly, no reason for

the Court to depart from its usual practice of

declining to review decisions of the courts of appeals

at an interlocutory stage of a case. See Brotherhood

of Locomotive Firemen & Enginemen v. Bangor «&

Aroostook R.R., 389 U.S. 327, 328 (1967).

CONCLUSION

The petition for a writ of certiorari should be

denied.

Respectfully submitted.

DREWS. DAYS, II]

Solicitor General

THOMAS S. WILLIAMSON, JR

Solicitor of Labor

ALLEN H. FELDMAN

Associate Solicitor

STEVEN J. MANDEL

De puty Associate Solicitor

MARK S. FLYNN

Senior Appellate Attorney

De partment of Labor

JUNE 1993

- Pa ae eT (IR TRO Ab PMS IGS