Harrington v. Chao

United States Court of Appeals
For the First Circuit
No. 01-1577

THOMAS J. HARRINGTON, RICHARD S. NEVILLE,
THOMAS FORDHAM, JOHN A. BIGGINS, MARK J. DURKIN,

Plaintiffs, Appellants,

v.

ELAINE L. CHAO, SECRETARY OF LABOR,
U.S. DEPARTMENT OF LABOR,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Richard G. Stearns, U.S. District Judge]

Before
Torruella, Lynch, and Lipez, Circuit Judges.

Renee J. Bushey with whom Michael A. Feinberg and Feinberg,
Campbell & Zack, P.C. were on brief for appellants.
Alan Hyde for Association for Union Democracy, Inc., amicus
curiae.
J. Matthew McCracken, Attorney, United States Department of Labor,
with whom James B. Farmer, United States Attorney, and Anita Johnson,
Assistant United States Attorney, were on brief for appellees.
Daniel J. Hall with whom DeCarlo, Connor & Selvo, Aaron D. Krakow
and Krakow, Souris & Birmingham were on brief for United Brotherhood of
Carpenters and Joiners of America and New England Regional Council of
Carpenters, amici curiae.

February 19, 2002
 LYNCH, Circuit Judge. This case comes to us under the union-

democracy provisions of the Labor Management Reporting and Disclosure

Act of 1959 ("LMRDA"), 29 U.S.C. §§ 401-531 (1994 & Supp. V 1999).

Thomas Harrington, a member of the United Brotherhood of

Carpenters and Joiners of America ("UBC"), alleges that the functions

and purposes traditionally accorded to local unions in the New England

region of the UBC are now served by the New England Regional Council.

That Council, he says, must be treated as a local union and not as an

intermediary body. Consequently, Harrington argues, the officers of

that Council must be elected in the manner that the LMRDA prescribes

for local unions, that is, by direct election by secret ballot among

the union members rather than by vote of delegates who are elected from

the local unions, as the UBC has chosen to do for the Council. Id. §

481(b),(d) (1994). Harrington filed a complaint with the Secretary of

Labor asking her to require the Council to hold a new election as a

local union. The Secretary declined for reasons stated in a brief

Statement of Reasons.

Harrington sued under the LMRDA. On motion by the Secretary,

the district court dismissed his suit. See Harrington v. Herman, 138

F. Supp. 2d 232 (D. Mass. 2001). Because the Statement of Reasons is

insufficient to permit meaningful judicial review, we reverse the

district court, vacate the Secretary's Statement of Reasons and remand

the case to the district court with instructions to remand to the

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Secretary. We do not now decide whether any refusal by the Secretary

to bring suit as sought by Harrington would be arbitrary or capricious.

I.

A.

The LMRDA, 29 U.S.C. §§ 401-531, was designed "to ensure that

unions would be democratically governed, and responsive to the will of

the union membership as expressed in open, periodic elections."

Finnegan v. Leu, 456 U.S. 431, 441 (1982); see also S. Rep. No. 86-187,

at 20 (1959) ("It needs no argument to demonstrate the importance of

free and democratic union elections."). The LMRDA balances this

purpose with the "countervailing policy recogniz[ing] that unions

should be free to conduct their affairs so far as possible and the

government should not become excessively involved in union politics."

Reich v. Local 89, Laborers' Int'l Union, 36 F.3d 1470, 1476 (9th Cir.

1994).

Title IV of the LMRDA, 29 U.S.C. §§ 481-483 (1994),

establishes minimum standards for the election of union officers. The

LMRDA provides that "[e]very local labor organization shall elect its

officers not less than once every three years by secret ballot among

the members." Id. § 481(b). However, these direct election

requirements do not apply to the selection of officers of "intermediate

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bodies" of labor organizations.1 Id. § 481(d). Instead, the Act

provides:

Officers of intermediate bodies, such as general committees,
system boards, joint boards, or joint councils, shall be
elected not less often than once every four years by secret
ballot among the members in good standing or by labor
organization officers representative of such members who
have been elected by secret ballot.

Id. § 481(d).2 Thus an intermediate body may choose between direct

election or representative election; UBC has chosen the latter.

When a union member wishes to challenge the validity of an

election, he must exhaust remedies available under the labor

organization's rules, and he may then file a complaint with the

1 "Labor organization," for purposes of the LMRDA, means:

a labor organization engaged in an industry affecting
commerce and includes any organization of any kind, any
agency, or employee representation committee, group,
association, or plan so engaged in which employees
participate and which exists for the purpose, in whole
or in part, of dealing with employers concerning
grievances, labor disputes, wages, rates of pay, hours,
or other terms or conditions of employment, and any
conference, general committee, joint or system board,
or joint council so engaged which is subordinate to a
national or international labor organization, other
than a State or local central body.

29 U.S.C. § 402(i).

2 The election of officers of national or international labor
organizations is also governed by Title IV. Under LRMDA § 401, such a
body must "elect its officers not less often than once every five years
either by secret ballot among the members in good standing or at a
convention of delegates chosen by secret ballot." 29 U.S.C. § 481(a).

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Secretary. Id. § 482(a). Upon receipt of a union member's complaint,

the Secretary investigates the allegations of that complaint. Id.

§ 482(b). If she determines that there is probable cause to believe

that a violation of Title IV occurred and that the violation probably

infected the outcome of the election, she must bring suit against the

labor organization to set aside the election and to obtain a new

election. Id.; Wirtz v. Local 153, Glass Bottle Blowers Ass'n, 389

U.S. 463, 472 (1968); see also Heckler v. Chaney, 470 U.S. 821, 834

(1985) (noting that § 482(b) "quite clearly withdrew discretion from

the agency and provided guidelines for exercise of its enforcement

power").

B.

In 1996, the UBC, an international union, undertook a

dramatic restructuring which established a new three-tier organization

of dominant and subordinate UBC bodies. The International remained at

the top of the organization. Below the International, the UBC

established a group of strong regional entities, called Regional

Councils. Lastly, the numerous existing UBC locals were placed at the

bottom, subordinate to both the International and the Regional

Councils. It appears that before July 1, 1996, the Regional Councils

did not exist.

The New England Regional Council ("NERC") covers UBC members

and subordinate UBC locals throughout Connecticut, Maine,

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Massachusetts, New Hampshire, Rhode Island, and Vermont. The officers

of NERC are not elected directly by local union members, but rather by

a secret ballot of delegates who are, in turn, elected by the members

of the local unions. The key officer of NERC is the Executive

Secretary-Treasurer; he has exclusive authority to submit grievances to

binding arbitration, hire or terminate NERC employees, chair the

collective bargaining committees, appoint the membership of collective

bargaining committees, and appoint the members of the trial committees

convened to discipline union members.

Although deprived of many of their previous functions, the

UBC locals subordinate to NERC remain independently chartered, have

identifiable memberships, elect their own officers, and have their own

by-laws. Although the locals do not negotiate collective bargaining

agreements, the membership of the locals must vote to ratify the

agreements. The locals hold meetings, have their own budgets and bank

accounts, and collect members' dues (a substantial portion of which are

then passed on to NERC). Each local is permitted to hire one clerical

staff member. Grievances are administered in the early, informal

stages by local stewards, but the locals cannot invoke higher levels of

the grievance process, including arbitration.

Harrington, a UBC member in Massachusetts, filed a complaint

with the Secretary of Labor on September 21, 1999, pursuant to 29

U.S.C. § 482 and 29 C.F.R. § 452.4 (2001), alleging that NERC was

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essentially a "local" labor organization because it had assumed most of

the powers and functions traditionally retained by UBC locals.

Harrington contended that because NERC is a "local," it must elect its

officers by direct vote of the local union members, and not by vote of

delegates from the local unions, in order to comply with the LMRDA.3

After conducting an investigation, the Secretary concluded

in a Statement of Reasons dated April 7, 2000, that NERC is an

"intermediate body," not a "local," and is therefore permitted to elect

its officers either by "secret ballot among the members in good

standing or by labor organization officers representative of such

members who have been elected by secret ballot." 29 U.S.C. § 481(d).

In the Statement of Reasons, the Secretary noted that NERC's

bylaws invested it with some of the powers and functions that the

union's locals previously possessed, but that this was insufficient

ground upon which to regard NERC as a local rather than as an

intermediate body.4 The Secretary stated that there was "no basis in

the statute or legislative history for concluding that if intermediate

bodies possess certain functions and powers," they lose the statutory

3 In an ironic turn of events, we were informed that Harrington
was recently elected Executive Secretary-Treasurer of NERC. This fact
does not affect our disposition of the case.

4 The full text of the Secretary's Statement of Reasons is set
forth in an appendix to this opinion.

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choice of electing officers indirectly and must elect their officers

directly. The Secretary concluded that because the investigation found

no violation of law in the method by which NERC elected its officers,

there was no basis for bringing suit against NERC.

Harrington then filed suit in United States district court

challenging the Secretary's refusal to file an enforcement action. On

April 10, 2001, the district court granted the Secretary's motion to

dismiss, reasoning that the Secretary's decision not to initiate suit

was not arbitrary or capricious. Harrington, 138 F. Supp. 2d at 235-

36. Harrington promptly filed this appeal.

II.

A.

Harrington's principal argument is that the Secretary, in

refusing to sue NERC, has retreated without explanation from her prior

policies regarding the enforcement of direct election standards.

Specifically, Harrington contends that the Secretary's current position

is directly at odds with her established position -- as expressed in

the regulations and case law -- of enforcing the direct election

provisions of 29 U.S.C. § 481(b) against so-called intermediate bodies

that have, in reality, assumed all of the functions of a local union.

Harrington is supported by amicus curiae Association for Union

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Democracy, Inc, while the UBC and NERC, acting as amici curiae, support

the Secretary.5

The Secretary denies any inconsistency and also contends that

her action is justified by the LMRDA's broad purposes, as expressed in

its legislative history. Noting that the government "should be careful

[not] to undermine self-government within the labor movement," S. Rep.

No. 86-187 at 5, the Secretary argues that she may not decide the

appropriate allocation of power between local and intermediate bodies

of a labor organization. She contends further that the deference to

the union's allocation of power is consistent with Congress's

recognition of the fact that "in some unions intermediate bodies

exercise responsible governing power." Id. at 20.

Amici the UBC and NERC argue that the Secretary's decision

ultimately may be justified by the evolving nature of labor relations

in the construction industry. According to the union, the construction

industry has undergone increasing regionalization over the past few

decades, with construction work becoming concentrated in fewer and

larger employers, and employers undertaking a greater number of out-of-

state projects.6 The prior UBC organizational structure, which relied

5 The court is appreciative of the assistance ably provided by
all the amici curiae in this case.

6 For example, the UBC says in 1992 the Census Bureau reported
that 2.2 % of construction employers had 50 or more employees and were

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on relatively strong locals, was ill equipped to handle the realities

of employers operating on a regional scale. Thus, the union contends,

the Secretary's decision to allow strong Regional Councils reflects a

sensible response to prevailing market conditions. The UBC and NERC

urge that a contrary result would not only impinge on internal union

affairs,7 but would also handicap their ability to deal with employers.

See S. Rep. No. 86-187, at 7 (noting the committee's belief that the

Act should not "weaken unions in their role as collective-bargaining

agents"); see also Estreicher, Deregulating Union Democracy, 2000

Colum. Bus. L. Rev. 501, 503 (2000) (arguing that excessive regulation

of internal union affairs will impose unnecessary compliance costs and

performing 39.6 % of the dollar value of business. Bureau of the
Census, U.S. Dep't of Commerce, Pub. No. CC92-I-27, 1992 Census of
Construction Industries: Industry Series: United States Summary:
Establishment With and Without Payroll 12 (1995) (percentages from
calculations based on statistics in table 8). By 1997, this
concentration of work had increased to 2.6 % of employers having 50 or
more employees who were performing 42.1 % of the total dollar value of
construction business. U.S. Census Bureau, U.S. Dep't of Commerce,
Pub. No. EC97C23S-IS, 1997 Economic Census: Construction: Subject
Series: Industry Summary 12 (2000) (percentages from calculations based
on statistics in table 5).

7 The UBC also points to practical detriments for those
individuals who wish to run for election of requiring direct election
of council members. Because the electorate would expand from only his
or her own local to the entire 26,000 New England membership, both
mailings and face to face campaigning would be more onerous. It
estimates the cost of a single mailing at $9,000 and posits that
members would be discouraged from running.

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weaken the unions' ability to engage effectively in "economic struggle

with employers").

III.

The Secretary's decision under Title IV of the LMRDA

not to bring an action against a labor organization for

violation of 29 U.S.C. § 481 is subject to only narrow judicial

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

Supreme Court held that the Secretary's decision is subject to

review under the Administrative Procedure Act for whether her

decision is "arbitrary, capricious, an abuse of discretion, or

otherwise not in accordance with law." Id. at 565 (quoting 5

U.S.C. § 706(2)(A) and citing 5 U.S.C. §§ 702, 704). The

Supreme Court said that "[e]xcept in what must be the rare

case, the court's review should be confined to examination of

the 'reasons' statement, and the determination whether the

statement, without more, evinces that the Secretary's decision

is so irrational as to constitute the decision arbitrary and

capricious." Id. at 572-73.

Only the Secretary may bring such a suit for post-

election remedies. Local No. 82, Furniture & Piano Moving v.

Crowley, 467 U.S. 526, 544 (1984). There are two principal

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justifications for this exclusivity: "(1) to protect unions from

frivolous litigation and unnecessary judicial interference with

their elections, and (2) to centralize in a single proceeding

such litigation as might be warranted." Trbovich v. United Mine

Workers, 404 U.S. 528, 532 (1972). Although Congress mandated

that the Secretary bring suit upon a finding that probable cause

exists that a violation took place, the Supreme Court has

implied that the Secretary may decline to bring suit if the

Secretary is not convinced that the "violation . . . probably

infected the challenged election." Bachowski, 421 U.S. at 570

(quotation marks and emphasis omitted); see also Shelley v.

Brock, 793 F.2d 1368, 1373 (D.C. Cir. 1986).

The Statement of Reasons enables a court to determine

whether the Secretary's refusal to act is contrary to law.

Bachowski, 421 U.S. at 568-71. The courts' ability to review

the Secretary's decision, however, is not the only justification

for requiring the Secretary to provide an adequate statement of

reasons. The Supreme Court in Bachowski stated that Congress

intended that the Secretary provide the complaining union member

with a reasoned statement as to why she determined not to

proceed. And the Court noted that Congress intended to compel

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the Secretary in her Statement to "cover the relevant points and

eschew irrelevancies," thereby assuring "careful administrative

consideration." Id. at 572.

This case raises two significant questions not directly

addressed in Bachowski. The first is whether the Secretary has

departed from her prior interpretation of the Act, codified at

29 C.F.R. § 452.11 (2001). The second is whether the Secretary,

if she is employing the analysis contained in 29 C.F.R. §

452.11, is doing so in a manner consistent with Donovan v.

National Transient Division, International Brotherhood of

Boilermakers ("Boilermakers"), 736 F.2d 618 (10th Cir. 1984),

and Schultz v. Employees' Federation of the Humble Oil &

Refining Co. ("Humble Oil"), No. 69-C-54, 1970 U.S. Dist. LEXIS

12288 (S.D. Tex. Mar. 31, 1970).

As to the first question, the regulation provides that

The characterization of a particular organizational
unit as a "local," "intermediate," etc., is determined
by its functions and purposes rather than the formal
title by which it is known or how it classifies
itself.

29 C.F.R. § 452.11. Because the LMRDA does not define the terms

"local labor organization" or "intermediate bodies," the

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Secretary has room to supply definitions, as she did in the

regulation.

The Secretary's Statement of Reasons, however, does not

cite to the language of 29 C.F.R. § 452.11. Indeed, it has

language which appears to disavow a functional approach: "There

is no basis in the statute or in the legislative history for

concluding that if intermediate bodies possess certain functions

and powers, they may only elect their officers directly by

secret ballot vote among the members of the intermediate body."

This is seemingly inconsistent with the regulation, which

requires a "functions and purposes" analysis.

As to the second question, other parts of the Statement

then purport to look at the evidence to determine what

"functions" are performed by the two entities, perhaps applying

the test in the regulations. But the Statement does so without

any reference to the Secretary's own precedents, including the

precedents discussed in Boilermakers and Humble Oil.8

8 At oral argument, counsel for the Secretary was asked about
the Statement's failure to cite the applicable regulation or
precedents. Counsel responded that it is the Secretary's policy to
avoid legal terminology in the Statements and to attempt to explain the
reasons in terms that the average union member would understand.
Although this is a valid and admirable interest, it does not excuse the

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 In Boilermakers, the Secretary sued to compel the National

Transient Division ("NTD"), a unit of the Boilermakers union, to

conduct elections in accordance with the provisions of the LMRDA

governing "local labor organizations." See 736 F.2d at 619. The Tenth

Circuit held that "[g]iven its structure and functions, we find no

reason to reject the Secretary's characterization of NTD as a local

labor organization." Id. at 623. The court noted first that, because

NTD was subordinate to the International and had no subordinate

organizational units, it had "the relatively simple organizational

structure characteristic of local labor organizations." Id. But the

court reasoned that the "[m]ost important" factor supporting the

Secretary's position was that "NTD performs the functions of a local."

Id. (emphasis added). In so holding, the court relied on the command

of 29 C.F.R. § 452.11 to examine the "functions and purposes" of the

entity in question. Id. at 622 (quoting 29 C.F.R. § 452.11). The

functions of the NTD included the negotiation of collective bargaining

failure to provide an adequate statement for purposes of judicial
review. If regulations and precedents are not explicitly cited, their
relevant language should at least be referenced in a way, albeit in
layperson's terms, that allows a reviewing court to know whether the
Secretary is relying on such precedents, repudiating them, or refining
them.
The Secretary's response is also odd because Harrington's
complaint document itself cited to the applicable regulations in the
Code of Federal Regulations, to Boilermakers, and to the legislative
history of the LMRDA. To suggest that complainants would be led astray
by some discussion of the law insufficiently credits the abilities of
union members. They were, after all, motivated to invoke the statute
and file a complaint.

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agreements, enforcing the agreements, handling grievances, collecting

dues from members, maintaining out-of-work lists, and holding meetings

at which members express their views. Id.9

Similarly to Boilermakers, the Secretary in Humble Oil sued

to force an entity purporting to be an intermediate body to conduct

elections as a "local" labor organization. 1970 U.S. Dist. LEXIS

12288. The district court, accepting the Secretary's construction of

the Act, found that the supposed intermediate body, the Employees'

Federation, was a statutory local because it performed "the basic local

union functions." Id. at *13 (emphasis added). That is, "[i]t

settle[d] grievances; collect[ed] dues and establishe[d] wages,

benefits, and working conditions by contract negotiations with the

employer; and discipline[d] its members and officers." Id. Even

though the Employees' Federation had numerous subordinate local bodies,

the court noted that these were mere "administrative arms" with "no

separate autonomy" that performed no significant collective bargaining

functions. Id. at *11-12.

9 When the union in that case sought certiorari, the Secretary
successfully opposed it. Amicus Association for Uniion Democracy
represents that in the Secretary's opposition to certiorari, the
Secretary argued that the division there was a local union because
"[i]t negotiates terms of employment with contractors, handles
grievances, maintains referral lists, and collects dues." Under this
definition, if it were to govern, NERC might well be a "local"; it
performs three of these four functions.

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 Given the similarities between this case and Boilermakers and

Humble Oil, the Secretary must provide some explanation distinguishing

these cases. We cannot now say whether the Secretary has changed

her interpretation or departed from the regulation,10 but we can

say with fair assurance that substantial questions have been

raised and the Secretary's statement is inadequate to permit us

to resolve them. In that sense -- the inadequacy of her

statement -- the statement is arbitrary.

The Secretary denies there has been any change in

interpretation or policy, but it is far from evident that this

is so, and the Statement of Reasons does not adequately address

this topic. The Statement of Reasons does not mention the

governing regulation or precedents at all, contains language

inconsistent with the "functions and purposes" approach, 29

C.F.R. § 452.11, and, to the extent it purports to apply a

functions and purposes approach, fails to address or adequately

distinguish the two most pertinent precedents.

10 On the issue of apparent inconsistency, it is the Secretary's
policy which must be the focus; the opinions of our sister courts
affirming decisions by the Secretary to bring suit are most significant
in that they reveal what the Secretary then purported her policy to be,
and that the policy was not arbitrary. Those cases do not dictate to
the Secretary what policy position she should now take.

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 The APA provides the applicable standard of review here

and it is commonplace in APA review to require an agency to

accompany a change in position with an explanation. See P.R.

Aqueduct & Sewer Auth. v. EPA, 35 F.3d 600, 607 (1st Cir. 1994).

Predictability as to how the Secretary will handle these cases

is of real value, and if predictability is to be thwarted in

favor of other interests, there should be some explanation. An

agency's decision cannot simply depart from the agency's prior

precedent without explaining its reasons for doing so.

Atchison, Topeka & Santa Fe Ry. Co. v. Wichita Bd. of Trade, 412

U.S. 800, 808 (1973) (plurality); Shaw's Supermarkets, Inc. v.

NLRB, 884 F.2d 34, 36-37 (1st Cir. 1989); JSG Trading Corp. v.

USDA, 176 F.3d 536, 544 (D.C. Cir. 1999). A deviation from prior

interpretations without sufficient explanation may be considered

arbitrary and capricious and therefore subject to judicial reversal.

See INS v. Yueh-Shaio Yang, 519 U.S. 26, 32 (1996); Citizens Awareness

Network, Inc. v. United States Nuclear Regulatory Comm'n, 59 F.3d 284,

291 (1st Cir. 1995); P.R. Sun Oil Co. v. EPA, 8 F.3d 73-77 (1st Cir.

1993). While this case does not involve judicial review of

either an agency adjudicatory proceeding nor of agency

rulemaking, the requirement of adequate explanation is an

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inevitable consequence of applying the APA's arbitrary and

capricious standard to the Secretary's reviewable decision

whether to initiate prosecution. That requirement distinguishes

this case from Heckler v. Chaney and its progeny. Chaney, 470

U.S. at 834 (comparing the presumption of nonreviewability of

other agencies' decisions not to undertake enforcement actions

with the reviewability of the Secretary's decision under the

LMRDA).

The agency's burden of explanation is heavier where an

agency has expressed its statutory interpretation in

regulations, adopted after notice-and-comment rulemaking, and

then seeks to depart from that interpretation. Agencies are

bound by their regulations, and to permit what may be a change

in the regulation without any explanation would undermine the

requirement of notice- and-comment rulemaking.11

Agencies do have leeway to change their interpretations of

laws, as well as of their own regulations, provided they explain the

11 Should the Secretary actually wish to change 29 C.F.R. §
452.11, she must do so in accord with the APA's general rulemaking
provisions. 5 U.S.C. § 553 (2000). See Util. Solid Waste Activities
Group v. EPA, 236 F.3d 749 (D.C. Cir. 2001) (holding that agency must
follow notice-and-comment procedures even to correct technical error in
regulation).

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reasons for such change and provided that those reasons meet the

applicable standard of review. See Bowles v. Seminole Rock & Sand Co.,

325 U.S. 410, 413-14 (1945) (counseling judicial deference to an

agency's interpretation of a rule it promulgates pursuant to statute).

Compare Citizens Awareness Network, 59 F.3d at 291-92 (remanding to

agency because agency altered interpretation of regulation without

providing reasoning or following statutory procedures), with Pub.

Interest Research Group v. FCC, 522 F.2d 1060, 1065 (1st Cir. 1975)

(upholding agency change in policy where agency provided a sufficiently

clear explanation). Judicial deference to agency interpretations and

policy choices is, in part, premised on the notion that agencies have

greater expertise in their area of specialty than do courts, and that

they should have flexibility to deal with changing economic and social

realities. See, e.g., Chevron, U.S.A. Inc. v. Natural Res. Def.

Council, Inc., 467 U.S. 837, 863-66 (1984). It is up to the agency in

the first instance to interpret the statute and apply those

interpretations to the facts.

Based on the Secretary's Statement of Reasons, we are

unable to determine if the Secretary has changed the policy

articulated in 29 C.F.R. § 452.11 or her interpretation of that

policy. We are confronted here with a different problem than

was faced in Bachowski, created by what appears to be an

inconsistency between the Secretary's approach and her

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regulation and prior decisions, which may represent a volte-face

by the Secretary. Her Statement of Reasons fails to explain

whether she is departing from her prior course and, if so, the

reasons for the change.

Decisions about the proper meaning of LMRDA statutory terms,

and the proper application of the Act's mandate, are for the Secretary

to make, so long as they do not contravene the Act. These decisions

are not up to the courts; thus, it is more appropriate for us to

refrain from taking any judicial view at this point on the underlying

interpretive issues in this case. Respect for her authority requires

a remand, rather than final court resolution of the issue now.

Moreover, a finding that the Secretary has acted arbitrarily and

capriciously as to the ultimate issue would be premature, as it is not

clear on this record that the Secretary is in fact repudiating her

prior interpretations here.

The paucity of explanation hinders judicial review, requiring

a remand to the Secretary to reopen, thereby providing the Secretary an

opportunity to better explain her position. Bachowski, 421 U.S. at 574;

Maine v. Civil Aeronautics Bd., 520 F.2d 1240, 1245 (1st Cir. 1975)

(remanding for further proceedings because "[t]here are internal

inconsistencies and a failure to clearly articulate the standard being

applied" in agency decision); see also Doyle v. Brock, 821 F.2d 778,

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781 (D.C. Cir. 1987); DeVito v. Schultz, 300 F. Supp. 381 (D.D.C.

1969). As the Supreme Court long ago said:

[The] basis [for an administrative action] must be set forth
with such clarity as to be understandable. It will not do
for a court to be compelled to guess at the theory
underlying the agency's action; nor can a court be expected
to chisel that which must be precise from what the agency
has left vague and indecisive. In other words, [w]e must
know what a decision means before the duty becomes ours to
say whether it is right or wrong.

SEC v. Chenery Corp., 332 U.S. 194, 196-97 (1947) (internal quotation

marks omitted); see Allentown Mack Sales & Serv., Inc. v. NLRB,

522 U.S. 359, 375 (1998) ("The evil of a decision that applies

a standard other than the one it enunciates spreads in both

directions, preventing both consistent application of the law by

subordinate agency personnel . . . and effective review of the

law by courts.") The Secretary is already committed by statute to

expending resources in this area and has presumably reviewed all the

pertinent factual materials presented. It is not a significant burden

on her resources to ask her to explain her decision in a more reasoned

fashion.12 Nor do we disrupt anything by vacating her decision;

12 As Judge Patricia Wald has said:

Th[e] need to communicate should be on regulators'
minds from the first moment they take up a problem, and
they should constantly remind themselves that one day
they will be defending their actions, no matter how
specialized or partaking of expertise, before a panel
of three generalists. It will not be enough that the

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vacation is a proper remedy when an agency fails to explain its

reasoning adequately. See Edward S. Quirk Co. v. NLRB, 241 F.3d 41

(1st Cir. 2001) (vacating and remanding for further proceedings in

absence of reasoned explanation from the Board); Gailius v. INS, 147

F.3d 34, 48 (1st Cir. 1998) (vacation and remand appropriate

where agency failed to give adequate explanation for

conclusions); see generally Prestes, Remanding Without Vacating Agency

Action, 32 Seton Hall L. Rev. 108 (forthcoming 2001), working paper

available at http://papers.ssrn.com (criticizing the practice of

remanding without vacating).

Should she again decide not to initiate suit, the Secretary

must file a sufficient Statement of Reasons, which addresses both the

application of the functions and purposes test of 29 C.F.R. § 452.11,

and whether her decision is consistent with her precedents. If there

has been a change, she should also explain whether changing labor

market economics justify a modification of prior interpretation or a

building construction trades exception to it, or what the other reasons

agency's lawyers then talk a good line; it will be
necessary that the agency itself has described in its
own decision what it is doing and why, in a way that
will be clear to the judicial reviewers.

Wald, Judicial Review in Midpassage: The Uneasy Partnership Between
Courts and Agencies Plays On, 32 Tulsa L.J. 221, 235 (1996).

-23-
for the change are. See Yeuh-Shaio Yang, 519 U.S. at 31-32 (agency may

carve out exceptions to general policy).

We are mindful of the Supreme Court's admonition that

"endless litigation concerning the sufficiency of the written

statement is inconsistent with the statute's goal of expeditious

resolution of post-election disputes." Bachowski, 421 U.S. at

575; see also Eskridge, Note, Dunlop v. Bachowski and the Limits

of Judicial Review under Title IV of the LMRDA: A Proposal for

Administrative Reform, 86 Yale L.J. 885, 890-96 (1977) (arguing

that protracted judicial review impairs enforcement scheme).

Nonetheless, a remand is the appropriate remedy here. A serious

question has been raised about the Secretary's adherence to her

own articulated policies. Any delay and uncertainty occasioned

by remand is justified by the need for clarity, both in this

case and more generally, as to her present interpretation of her

statutory obligations. Pension Benefit Guar. Corp. v. LTV

Corp., 496 U.S. 633, 254 (1990).

The district court's dismissal of the petition for review is

reversed, the Statement of Reasons is vacated, and the matter is

remanded to the district court with instructions to remand to the

Secretary for proceedings consistent with this opinion.

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So ordered.

-- Concurrence Follows --

-25-
 TORRUELLA, Circuit Judge (Concurring). My colleagues in the

majority conclude that they are presently unable to determine whether

the Secretary's actions in this case were unlawful, and that only

further clarification from the Secretary will permit proper review.

Given this holding, as I understand it, the Secretary now has three

options following remand: 1) she may initiate suit; 2) she may decline

to initiate suit, acknowledge that she is adopting a new enforcement

policy and interpretation of the Act, and provide her reasons for

altering her prior policy; or 3) she may decline to initiate suit and

attempt to clarify for the court why she believes her decision is

consistent with the governing regulations and established past

practice.

I fully agree that the Secretary is entitled to pursue either

of the first two options. I write separately to express my view that

it would be futile for the Secretary to exercise the third option. We

need no additional information to correctly conclude that the

Secretary's decision in this case does not square with her established

policies and practices. Since the Secretary has provided no reasoned

basis for the inconsistency, we should set aside her decision as

"arbitrary and capricious" in violation of 5 U.S.C. § 706(2)(A). See

Honeywell Int'l, Inc. v. NLRB, 259 F.3d 119, 123 (D.C. Cir. 2001)

("Without more, the [agency's] departure from precedent without a

reasoned analysis renders its decision arbitrary and capricious.").

-26-
 In 1973, the Secretary enacted a regulation directly

governing determinations of whether a labor organization is a "local"

or "intermediate" body for purposes of § 401 of the LMRDA. See 38 Fed.

Reg. 18,324, 18,326 (July 7, 1973). That regulation, which remains in

effect, provides that "[t]he characterization of a particular

organizational unit as a 'local,' 'intermediate,' etc., is determined

by its functions and purposes rather than the formal title by which it

is known or how it classifies itself." 29 C.F.R. § 452.11 (emphases

supplied). The Secretary's past commitment to the regulation's

"functional" -- as opposed to merely "structural" -- approach is borne

out in the only reported decisions addressing the question of whether

a union entity is a "local" or "intermediate" body for purposes of

Title IV's election provisions. See Donovan v. Nat'l Transient Div.,

Int'l Bhd. of Boilermakers, 736 F.2d 618 (10th Cir. 1984); Shultz v.

Employees' Fed'n of Humble Oil & Ref. Co., No. 69-C-54, 1970 U.S. Dist.

LEXIS 12288 (S.D. Tex. Mar. 31, 1970).

By contrast, the Secretary's Statement of Reasons in the

present case declares that "[t]here is no basis in the statute or in

the legislative history for concluding that if intermediate bodies

possess certain functions and powers, they may only elect their

officers directly by secret ballot vote among the members of the

intermediate body" (emphases added). Taking this statement as a

guiding principle, the Secretary then proceeds to analyze only the

-27-
structure of the labor organization in question, concluding that the

UBC locals "satisfy the definition of 'local' in the ordinary sense" in

that they are "are clearly subordinate to NERC, which in turn is

subordinate to the International."

I fail to see how further clarification will reconcile the

Secretary's present position (that there is "no basis" for conducting

an inquiry of the entity's "functions and powers") with the governing

regulation (which mandates an inquiry of the "functions and purposes"

of the challenged entity).1 The Secretary has had every opportunity in

this litigation to characterize her decision as consistent with past

practice, and I presume that she did not hold back her best arguments.

Nevertheless, the Secretary's extended analysis of the case law is

1 One might argue that the Secretary's present statement can be
reconciled with the regulation because it purports only to find no
basis for a functional inquiry in the statute and legislative history,
while not, specifically, saying that no such basis exists in the
regulations. An argument of this sort would, however, be disingenuous.
Any valid administrative regulation must have some basis in the
language of a statute. That is, a valid regulation must, at the very
least, provide a reasonable interpretation of an otherwise ambiguous
statutory provision. Becker v. Fed. Election Comm'n, 230 F.3d 381, 390
(1st Cir. 2000), cert. denied, --- U.S. ---, 121 S. Ct. 1733 (2001).
If it is accurate that there is truly no basis in the Act for
conducting a functional inquiry, as the Secretary contends, we likely
would be compelled to hold the regulation mandating such an inquiry
invalid. See id. ("Agency regulations in accord with [Congress']
unambiguously expressed intent are upheld; those that contravene that
intent are invalid."). Thus, the inconsistency remains. Any statement
by an agency that is tantamount to a declaration that its own governing
regulation is invalid would, surely, require acknowledgment and
explanation.

-28-
unpersuasive, and she makes no attempt to harmonize her decision with

29 C.F.R. § 452.11. If we are not yet convinced that the Secretary has

pursued a consistent approach, what more will she reveal in a

supplemental statement that is likely to sway us?

To be sure, one can conceive of a Statement of Reasons that

is so elliptical or opaque that a reviewing court simply cannot discern

the Secretary's position or rationale. And in such cases, I fully

agree that further explanation from the Secretary is warranted. See,

e.g., Donovan v. Local 6, Wash. Teachers' Union, 747 F.2d 711, 719

(D.C. Cir. 1984) (mandating a supplemental statement of reasons where

the Secretary's reasons for finding no violation of the Act were

"perfunctory and cryptic"). However, this is not such a case. The

Secretary has stated her present interpretation of the Act with

reasonable clarity, and her present interpretation obviously does not

gibe with the readily discernible past policy and practice. 2

2 I also believe that, in a laudable effort to accord deference
to an administrative agency, the majority opinion unintentionally
threatens to impose a heightened and wholly unnecessary administrative
burden on the Department. As the Statement of Reasons in the Appendix
should indicate, these are relatively informal documents. While they
are intended to aid courts in reviewing agency action, they are also
intended to be read and understood by the complaining union members.
Dunlop v. Bachowski, 421 U.S. 560, 572 (1975). For this reason, we are
entitled only to a simple statement that "inform[s] the court and the
complaining union member of both the grounds of decision and the
essential facts upon which the Secretary's inferences are based." Id.
at 573-74. If we require the Secretary to provide a Statement of
Reasons that goes beyond even the appellate-caliber briefing that we
already have, the likely result will be that the Secretary's responses

-29-
Accordingly, we should conclude that her decision must be set aside as

arbitrary and capricious. If, following remand, the Secretary decides

not to initiate suit, she should be required to provide a Statement of

Reasons that acknowledges her departure from precedent. She should

also have to explain her rationale for the decision and explain whether

the decision is consistent with both the LMRDA and any governing

regulations currently in effect.

Since my view does not command a majority of this panel, I

must await, with morbid curiosity, a persuasive clarification of the

reasons for the Secretary's decision that could not be articulated in

the original Statement of Reasons, the Secretary's thirty-one page

brief, or the fifteen page submission of the amicus union.

become less accessible to the lay complainant. Worse yet, the
administrative resources necessary to generate such an extensive legal
analysis for each decision not to sue will likely distract the
Department from processing the complaints of union members in a timely
fashion.

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 APPENDIX

STATEMENT OF REASONS OF THE SECRETARY OF LABOR

The complainant, Thomas Harrington, a member in good standing

of New England Regional Council of Carpenters [Regional Council],

United Brotherhood of Carpenters and Joiners, AFL-CIO, filed a timely

complaint alleging that the Regional Council fails to elect its

officers in compliance with Title IV of the Labor Management Reporting

and Disclosure Act of 1959, 29 U.S.C. §§ 482, et seq. (the "Act"). For

the following reasons, the complaint is dismissed.

The complainant alleges that since the Regional Council

assumed functions traditionally performed by the locals of the

Carpenters, The Regional Council is now acting as a "local" labor

organization and must therefore directly elect its officers to remain

in compliance with section 401(b) of the Act, 29 U.S.C. § 481(b).

Section 401(b) of the Act states, "Every local labor organization shall

elect its officers not less often than once every three years by secret

ballot among the members in good standing." The Regional Council

considers itself an intermediate body, and elects its officers via

delegates elected by the members of locals pursuant to section 401(d)

of the Act, 29 U.S.C. § 481(d). Section 401(d) states that, "Officers

of intermediate bodies, such as general committees, system boards,

joint boards, or joint councils, shall be elected not less often than

once every four years by secret ballot among the members in good

-31-
standing or by labor organization officers representative of such

members who have been elected by secret ballot."

The Regional Council was created by the United Brotherhood

of Carpenters and Joiners International on July 1, 1996. The bylaws

of the Regional Council do appear to invest it with some of the powers

and functions the locals traditionally possessed. However, the

Department is unable to conclude that for this reason the Regional

Council is no longer an intermediate body entitled to elect its

officers in accordance with either of the two choices prescribed by

Congress for intermediate bodies in section 401(d) of the Act.

Congress' purpose in ordering unions to conduct free and fair

periodic elections was "to insure that the officials who wield [power]

are responsive to the desires of the men and women whom they

represent". S. Rep. No. 187, 86th Cong., 1st Sess. 19-20. In section

401(d) of the Act, Congress indicated that with respect to intermediate

bodies the above purpose could be achieved either directly by a secret

ballot vote among all of the members of the intermediate body or

indirectly by delegates who themselves were elected directly by secret

ballot vote among all the members they represent. Furthermore, that

same report indicates that Congress recognized that intermediate bodies

had varying degrees of governing power. It states, "The bill

recognizes that in some unions intermediate bodies exercise responsible

governing power and specifies that the members of such bodies as

-32-
systems boards in the railroad industry be elected by secret ballot of

the members of the union or union officers elected by the members by a

secret ballot." Id. (emphasis added). Thus, Congress understood that

intermediate bodies could exercise "governing power" and still be

permitted to elect officers via delegate as long as these delegates

were selected by secret ballot. There is no basis in the statute or

in the legislative history for concluding that if intermediate bodies

possess certain functions and powers, they may only elect their

officers directly by secret ballot vote among the members of the

intermediate body.

Further, the Department's investigation disclosed no evidence

that would provide a basis for concluding that the Regional Council is

now a "local" labor organization. The available evidence indicates

that the locals that comprise the Regional Council have not been

dissolved or absorbed by the Regional Council so as to be mere

administrative arms of the Council, but rather appear to continue to

function as separate labor organizations under the Act. From the

evidence obtained from the Department's investigation, the locals

subordinate to the Regional Council satisfy the definition of "local"

in the ordinary sense. All of the locals of the Carpenter's New

England region are clearly subordinate to the Regional Council, which

in turn is subordinate to the International. These locals are

independently chartered, have identifiable memberships, elect their own

-33-
officers, and have their own bylaws. The locals are parties to

collective bargaining agreements, and although the Regional Council

negotiates these agreements, the locals have the authority to ratify

them. The New England Carpenter locals hold meetings periodically

where the membership is informed of union activities and business.

Each local has its own budget and manages its own bank accounts.

Collection of membership dues is performed at the local level. First

level grievances are administered by stewards at the local level.

Based upon these facts, we are unable to conclude that the locals of

the New England Regional Council are so depleted of power and function

that they no longer constitute "local" labor organizations under the

LMRDA. There is no violation.

It is concluded from the analysis set forth above that the

investigation failed to disclose any violation of the Act upon which

the Secretary of Labor may bring an action under Section 402 of the

Act, 29 U.S.C. § 482, to set aside the election. Accordingly, we are

closing our file on this matter.

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