FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STEEL WORKERS LOCAL 12- No. 10-35450
369; DAVID ROBERTS,
Plaintiffs, D.C. No.
2:07-cv-05053-
and RHW
STEPHANIE B. GREEN,
Plaintiff-Appellant, OPINION
v.
UNITED STEEL WORKERS
INTERNATIONAL; UNITED STEEL
PAPER AND FORESTRY RUBBER
MANUFACTURING ENERGY ALLIED
INDUSTRIAL AND SERVICE WORKERS
INTERNATIONAL UNION; AFL-CIO-
CLC; HANFORD ATOMIC METAL
TRADES COUNCIL; AFL-CIO; DAVE
MOLNAA, husband and the marital
community thereof; VINCE STROOPS,
husband and the marital community
thereof; JANE DOE STROOPS, wife
and the marital community thereof;
KIRK DOMINA, husband and the
marital community thereof; JANE
DOE DOMINA, wife and the marital
community thereof; VICTOR CRUZ,
husband and the marital community
2 USW LOCAL 12-369 V. USW INT’L
thereof; JANE DOE CRUZ, wife and
the marital community thereof; JIM
WOODWARD, husband and the
marital community thereof; JANE
DOE WOODWARD, wife and the
marital community thereof; CHERRIE
MILLER, wife and the marital
community thereof; JOHN DOE
MILLER, husband and the marital
community thereof; MARGIE
MEYERS, wife and the marital
community thereof; JOHN DOE
MEYERS, husband and the marital
community thereof; JIM OROSCO,
husband and marital community
thereof; JANE DOE OROSCO, wife and
the marital community thereof;
KAREN ALEXANDER, wife and the
marital community thereof; JOHN
DOE ALEXANDER, husband and the
marital community thereof; RANDY
KNOWLES, husband and the marital
community thereof; JANE DOE
KNOWLES, wife and the marital
community thereof; JANE DOE
MOLNAA, wife and the marital
community thereof,
Defendants-Appellees.
Appeal from the United States District Court
for the Eastern District of Washington
Robert H. Whaley, Senior District Judge, Presiding
USW LOCAL 12-369 V. USW INT’L 3
Argued and Submitted
April 8, 2013—Seattle, Washington
Filed September 6, 2013
Before: Dorothy W. Nelson, A. Wallace Tashima,
and Consuelo M. Callahan, Circuit Judges.
Opinion by Judge Tashima
SUMMARY*
Labor Law
The panel affirmed the district court’s judgment after
bench trial in a former local union president’s action alleging
race and gender discrimination and retaliation for having
engaged in protected speech under the Labor-Management
Reporting and Disclosure Act.
The plaintiff, a nuclear chemical operator at the Hanford
Nuclear Reservation, was the elected president of her local
union. She sued the local union, the international union, the
Hanford Atomic Metal Trades Council, and HAMTC’s
president.
Affirming the dismissal of claims under LMRDA § 609,
the panel held that this provision does not protect union
officers from discipline suffered in their official capacities.
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
4 USW LOCAL 12-369 V. USW INT’L
The panel also affirmed the district court’s judgment after
trial on claims brought under LMRDA §§ 101 and 102, Labor
Management Relations Act § 301, 42 U.S.C. § 1981, Title
VII, and the Washington Law Against Discrimination. The
panel held that the district court did not clearly err in finding
that the defendants did not engage in unlawful retaliation or
discrimination because, rather than reflecting discriminatory
or retaliatory animus, the actions taken against the plaintiff
were attributable to the competing interests of rival factions
within the local, or the need to alleviate the tension created
thereby.
COUNSEL
Natalie R. Ram (argued) and Deanne E. Maynard, Morrison
& Foerster LLP, Washington, D.C., for Plaintiff-Appellant.**
Danielle E. Leonard (argued), Peter D. Nussbaum, Matthew
J. Murray, Altshuler Berzon LLP, San Francisco, California;
Jay Smith and Joshua F. Young, Gilbert & Sackman, Los
Angeles, California, for Defendants-Appellees United Steel,
Paper and Forestry, Rubber, Manufacturing, Energy, Allied
Industrial and Service Workers International Union, AFL-
CIO, CLC.
Daniel Hutzenbiler (argued) and Richard H. Robblee,
Robblee Detwiler & Black PLLP, Seattle, Washington, for
Defendants-Appellees Hanford Atomic Metal Trades
Council, David and Jill Molnaa.
**
The court appreciates and thanks counsel for her pro bono
representation of Plaintiff-Appellant on this appeal.
USW LOCAL 12-369 V. USW INT’L 5
OPINION
TASHIMA, Circuit Judge:
Plaintiff Stephanie Green, formerly President of the
United Steel Workers Local 12-369 (the “Local”), brings the
instant action against the United Steel, Paper and Forestry,
Rubber, Manufacturing, Energy, Allied Industrial and Service
Workers International Union, AFL-CIO, CLC (the
“International”), the Hanford Atomic Metal Trades Council
(“HAMTC”), and David Molnaa (collectively, “Defendants”).
Green pursues claims for discrimination on the basis of race
and gender and retaliation for having engaged in protected
speech under the Labor-Management Reporting and
Disclosure Act (“LMRDA”), 29 U.S.C. § 401 et seq. The
district court dismissed Green’s claims under LMRDA § 609,
but permitted the remainder of her claims to proceed to trial.
Following a ten-day bench trial, the district court entered
judgment in favor of Defendants, finding that they had not
unlawfully discriminated or retaliated against Green.
On appeal, we hold that LMRDA § 609 does not protect
union officers from discipline suffered in their official
capacities, and therefore the district court properly dismissed
Green’s claims under this provision. We further affirm the
district court’s judgment entered after trial.
I. BACKGROUND
A. Factual Background
As underscored by the length of the trial below, the
factual history of this case is extensive to say the least. We
6 USW LOCAL 12-369 V. USW INT’L
focus on the actors, events, and controversies most relevant
to Green’s claims.
1. Parties
Green is a nuclear chemical operator (“NCO”) at the
Hanford Nuclear Reservation in Richland, Washington. In
November 2005, Green was elected President of the Local,
making her the first female and first African-American
President in the Local’s history. Green was reelected in May
2009, and she continued to serve as President at the time of
trial.
The Local is an amalgamated local that is headquartered
in Richland and maintains branches in the states of
Washington, Hawaii, and Oregon. As of 2007, over half of
the Local’s 1400 members were, like Green, employed at the
Hanford Reservation.
A unique representation arrangement exists for members
employed at Hanford. The Local and fourteen other unions
with members at Hanford comprise HAMTC. HAMTC, and
not the constituent unions, acts as the collective bargaining
agent for Hanford union employees. Defendant Molnaa has
served as President of HAMTC since 2005.
The International is the parent organization of the Local.
It assumed this status in April 2005 after merging with the
Local’s previous parent, the Paper Allied-Industrial Chemical
and Energy Workers International Union (“PACE”). During
the period relevant to this suit, Vincent Stroops was a staff
representative for the International, serving in this capacity as
a liaison between the International and the Local. Jim
Woodward was a Subdistrict Director for the International,
USW LOCAL 12-369 V. USW INT’L 7
covering the district to which the Local belongs. Woodward
reported to Terry Bonds, who served as District Director for
the International. Leo Gerard is President of the
International.
2. Decertification Effort in 2002
Green was embroiled in disputes within the Local well
before being elected President. In 2002, Green and other
NCOs formed a group that attempted to decertify the Local as
their representative. According to the district court, the
NCOs contended that the Local was not adequately serving
their interests relative to the other bargaining units within the
Local.
Stroops, then acting as a staff representative for PACE,
filed formal charges against Green and the other NCOs for
violating the PACE Constitution. The charges against Green
were dismissed because she was not provided proper notice,
but other members of the group were found guilty and
suspended from the Local for various periods of time.
3. Steward Election in 2005
In January 2005, Green won an election to serve as
“steward” for a subset of NCOs at the Hanford Reservation.
Following the election, a dispute arose as to the scope of this
position. The notice for the election had listed the relevant
position as covering the “K-Basin,” which includes three
separate buildings – “K-East,” “K-West,” and “CVD.”
Green’s predecessor as steward, Kirk Domina, had been
recognized as steward for the entire K-Basin. However, after
Green won the election, Karen Alexander, one of the Local’s
staff representatives and a member of its Executive Board,
8 USW LOCAL 12-369 V. USW INT’L
informed Green that her position covered only the K-West
building and that there was no steward position for the entire
K-Basin. Randy Knowles, then-President of the Local, later
reiterated this position.
In May 2005, the Local agreed to recognize Green as the
point of contact for the entire K-Basin. Nevertheless, in July
2005, Green filed internal charges with the Local’s Executive
Board, alleging that the events surrounding the steward
election reflected discrimination attributable to her race and
gender. Green filed a similar complaint with the Equal
Employment Opportunity Commission (“EEOC”) in October
2005. On May 24, 2007, the EEOC issued a determination
that there was cause to believe that Green’s allegations were
meritorious.
4. Election as President and Union Governance
Disputes
Green was elected President of the Local in November
2005. When the election results were received, Karen
Alexander apparently commented: “We’ll just let the fucking
niggers run it then. See if they can do any better than I did.”
When the Local’s leadership ordered that the election be
rerun, Green appealed the decision to the International. In
April 2006, the International overturned the decision and
ordered that Green be seated as President.
On May 4, 2006, Green presided over her first Executive
Board meeting as President. Tensions rose when Green
announced that, contrary to prior practice, certain decisions
by the Executive Board would be subject to ratification by
union members at the Local’s monthly membership meetings.
Because these membership meetings were held in Richland,
USW LOCAL 12-369 V. USW INT’L 9
NCOs at the Hanford Reservation comprised a
disproportionate percentage of those able to attend, while
members from outlying branches such as the Spokane branch
were inevitably underrepresented. Indeed, in response to
Green’s announcement, an Executive Board member from the
Spokane branch warned Green that the new policy would lead
to the Local losing its Spokane units. Green’s response to
this warning was simply, “OK.”
As was likely the intended effect, after the new policy
was implemented, decisions of the Executive Board were
regularly overturned at the monthly membership meetings in
Richland.
5. Decertification of Spokane Units
The warning Green received at the Executive Board
meeting proved to be correct: two units of the Spokane
branch – pharmacists and technicians – ultimately decided to
decertify from the Local. Green contends, however, that she
was unduly marginalized in this process.
In July 2006, the International arranged a meeting with
the Spokane pharmacists to discuss the unit’s desire to
decertify. Green traveled to Spokane to participate in the
discussions, but upon her arrival, an official with the
International informed her that she would not be allowed to
attend the meeting. The pharmacists eventually decertified
from both the Local and the International. In June 2007, the
technicians at the Spokane branch decertified from the Local,
but were permitted to form a new local within the
International. Again, Green was not included in the
discussions concerning the unit’s decertification efforts.
10 USW LOCAL 12-369 V. USW INT’L
6. Signature Authority
After Green’s election, a controversy developed over
whether Green had “signature authority” with respect to
communications with HAMTC. Locals can only
communicate with employers at Hanford through HAMTC,
and HAMTC will only forward certain documents if the
documents have been signed by an official for the local who
has signature authority. Initially, Molnaa, the President of
HAMTC, refused to recognize Green’s signature authority.
Molnaa would instead return documents that had been signed
by Green to Karen Alexander (to recall, one of the Local’s
staff representatives) and have Alexander add her signature.
Molnaa testified that he would only recognize Green’s
signature authority if she were a staff representative or if a
staff representative told him that she had such authority.
Green declined, on principle, to ask Alexander to convey to
Molnaa that Green should be afforded the authority. Green
notes that Molnaa recognized the signature authority of prior
presidents, but Defendants counter that those presidents also
had been staff representatives.
The dispute was resolved in January 2007 when Stroops,
acting on behalf of the International, requested that Molnaa
recognize Green’s signature authority. Molnaa thereafter
recognized Green’s authority.
USW LOCAL 12-369 V. USW INT’L 11
7. Maki Commission
a. Initial Maki Hearing and Report
In December 2006, a group of Local officers and
employees, led by Executive Board member Margie Myers,
wrote to International President Gerard and levied a host of
allegations against Green. The group alleged that Green had
failed to uphold her duties as President, misappropriated
funds, acted in violation of the relevant constitutions and
bylaws, falsified records, harassed officers, and failed to
represent the union.
In response to the allegations, Gerard appointed
International representative Thomas Maki to investigate the
charges. Maki conducted a three-day hearing in February
2007. On May 24, 2007, Maki issued a report clearing Green
of any wrongdoing. Maki further concluded that Green and
her ally Dave Roberts had done nothing to warrant either their
removal from office or placing the Local under an
administratorship.
b. Green’s 2007 EEOC Complaint
On February 14, 2007, shortly before Maki’s three-day
hearing, Green filed a second complaint with the EEOC
alleging that she was experiencing discrimination on the basis
of her race and gender. The International hired the law firm
of Gilbert & Sackman to prepare a response to the charges.
On April 23, 2007, the firm submitted a response on behalf of
both the International and the Local.
12 USW LOCAL 12-369 V. USW INT’L
Gilbert & Sackman submitted invoices to the Local for
the work done in preparing this response, but at its April 2007
general membership meeting, the Local voted not to authorize
funds for the fees. Green contends that she left the room
prior to the debate over whether to authorize the payments.
c. Second Maki Report
On August 10, 2007, Maki issued an amended version of
his report. The body of the report, which addressed the
specific allegations levied by Myers in December 2006, was
identical to the previous version issued in May. Maki,
however, amended the conclusion of the report to recommend
that the Local be placed under an administratorship.
Maki cited the following reasons for this new
recommendation: (i) the Local had failed to process internal
grievances filed by certain members; (ii) Green had violated
the Local’s bylaws by removing members of committees
without the Executive Board’s approval; (iii) the Local had
terminated full-time employees, subjecting the Local to
potential legal and financial liabilities; (iv) Green had filed an
EEOC complaint against the Local, and while Maki “[had] no
problem with that,” he had “learned that the Local Union
ha[d] decided, at the President’s urging, not to retain legal
counsel to defend the Local against these charges,” which
“would seem to be a conflict of interest”; and (v) there were
“serious allegations of lack [of] representation” regarding
some of the Local’s units.
In his deposition testimony, Maki could not recall
precisely when he had learned of these new allegations, but
he stated that they had been relayed to him by Subdistrict
Director Woodward or another International employee. Maki
USW LOCAL 12-369 V. USW INT’L 13
conceded that, before issuing the amended report, he had not
offered Green an opportunity to respond to the new charges.
8. Imposition of Administratorship
Based on the amended Maki report, Bonds, the
International’s District Director, sent an e-mail to President
Gerard recommending that the Local be placed under an
emergency administratorship. The reasons provided by
Bonds tracked in language and substance those used by Maki
in his amended report. On August 20, 2007, Gerard imposed
an emergency administratorship on the Local. Green and
Roberts were suspended as officers as a result of the
administratorship.
Green and Roberts filed suit to enjoin the International’s
actions, and the district court granted the request for
injunctive relief. The district court noted that, under the
International’s constitution, a full hearing was required prior
to imposing an administratorship, except in cases of
emergency. The court concluded that there had not been an
adequate hearing conducted in this instance and that the
circumstances did not constitute an emergency. Accordingly,
the court ordered that the administratorship be dissolved and
that Green and Roberts be restored to their elected positions.
9. Kins Commission
The problems within the Local persisted after Green was
reinstated. On October 15, 2007, Executive Board member
Margie Myers e-mailed Gerard and Bonds, among others, and
informed them that Green had fired the Local’s secretary.
Myers added, “When are you guys going to realize that every
day you wait to come and put us in administratorship she gets
14 USW LOCAL 12-369 V. USW INT’L
stronger. If you get in here now, you might possibly save this
local and yourselves $50K that she is trying to get to her
attorney to fight you!” In response to this e-mail, Gerard
wrote to Bonds, “I think we need to move qui[c]ker . . . have
we done an audit . . . what are we doing.”
On October 17, 2007, Green conducted a “special
meeting” of the Local, allegedly without providing proper
notice to members. At this meeting, Green appointed an
officer to an elected position and made decisions on the
expenditure of union funds. Bonds subsequently wrote to
Green to inform her that the meeting had been unauthorized
and that any actions taken at the meeting were invalid.
On October 19, 2007, Bonds wrote to Gerard requesting
that another commission be convened to investigate Green’s
conduct. Bonds cited the above-described unauthorized
meeting, the backlog of grievances, news that HAMTC had
begun exploring whether to expel the Local, and the repeated
reports of conflict within the Local. Pursuant to this letter,
Gerard appointed another commission, this one chaired by
David Kins.
The Kins Commission held its hearing over three days in
November 2007. In its report, the Kins Commission
recommended that the Local be placed under an
administratorship. The report relied principally on the
Local’s failure to process grievances and the subverting of the
Local’s democratic processes. With respect to the latter
issue, the report cited the disenfranchisement of outlying
branches, the discharge of employees without the
involvement of the Executive Board, and the special meeting
that Green conducted in violation of the Local’s bylaws.
USW LOCAL 12-369 V. USW INT’L 15
Following the issuance of the Kins Commission’s report,
an appeal panel for the International rejected the
recommendation to impose an administratorship. The panel
noted that, since the Kins Commission hearing, Green had
made significant progress in processing grievances and had
expressed a willingness to both improve internal relations and
facilitate the Local’s democratic functioning.
B. Procedural History
The above facts gave rise to two separate suits that were
consolidated for purposes of trial. The first suit was the
previously described action filed by Green, Roberts, and the
Local against the International in August 2007 seeking to
enjoin the administratorship. In January 2008, the plaintiffs
amended their complaint to transform the suit into a
discrimination action.
The second suit was filed by Green in November 2007
against the International, HAMTC, Molnaa, Stroops,
Woodward, and various individuals associated with the
Local.1 This suit is the subject of the instant appeal. Green
filed an amended complaint on April 4, 2008, asserting
causes of action under LMRDA §§ 101, 102, and 609, the
Labor Management Relations Act (“LMRA”) § 301,
42 U.S.C. § 1981, Title VII, and Washington state anti-
discrimination law. On July 25, 2008, the district court
dismissed Green’s claims under LMRDA § 609, but
permitted the remainder of her claims to proceed to trial.
1
This action was initially numbered No. 07 cv-5066, but it assumed the
case number of the first action when the two actions were consolidated in
March 2009.
16 USW LOCAL 12-369 V. USW INT’L
The district court consolidated the two actions on March
11, 2009. In November 2009, the district court presided over
a ten-day bench trial.2 At the close of Plaintiffs’ case,
Defendants moved for judgment pursuant to Federal Rule of
Civil Procedure 52(c). The district court granted Defendants’
motion, finding that they had not engaged in unlawful
discrimination or retaliation. Final judgment was entered on
April 12, 2010, and Green timely appealed. We have
jurisdiction under 28 U.S.C. § 1291.
II. STANDARDS OF REVIEW
In reviewing the district court’s judgment entered under
Rule 52(c), we review its findings of fact for clear error and
its conclusions of law de novo. Lee v. W. Coast Life Ins. Co.,
688 F.3d 1004, 1009 (9th Cir. 2012). If the district court
applied the correct legal rule, we may set aside its findings of
fact as clearly erroneous only if they are “illogical,
implausible, or without support in inferences that may be
drawn from the facts in the record.” United States v.
Hinkson, 585 F.3d 1247, 1263 (9th Cir. 2009) (en banc). In
applying this standard in the context of a bench trial, we
“must constantly have in mind that [our] function is not to
decide factual issues de novo.” Anderson v. City of Bessemer
City, 470 U.S. 564, 573 (1985) (internal quotation marks
omitted). “If the district court’s account of the evidence is
plausible in light of the record viewed in its entirety, [we]
may not reverse it even though convinced that had [we] been
sitting as the trier of fact, [we] would have weighed the
evidence differently.” Id. at 573–74.
2
The plaintiffs dismissed all of the individual defendants except for
Molnaa prior to trial.
USW LOCAL 12-369 V. USW INT’L 17
With respect to the district court’s dismissal of Green’s
claims under LMRDA § 609, we review the grant of a motion
to dismiss de novo. Autotel v. Nev. Bell Tel. Co., 697 F.3d
846, 850 (9th Cir. 2012).
III. DISCUSSION
A. Section 609 of LMRDA
The district court dismissed Green’s claims under § 609
on the ground that the provision does not extend protections
to union officers in their official capacities. This question is
essentially one of first impression across the federal Courts of
Appeals.
The LMRDA, enacted in 1959, “was the product of
congressional concern with widespread abuses of power by
union leadership.” Finnegan v. Leu, 456 U.S. 431, 435
(1982). Title I of the LMRDA, denominated the “Bill of
Rights of Members of Labor Organizations,” enshrines
protections for union members parallel to certain rights
guaranteed under the Federal Constitution. Id. To this end,
§§ 101(a)(1) and (2) of Title I guarantee equal voting rights
18 USW LOCAL 12-369 V. USW INT’L
and the rights to free speech and assembly.3 Id. at 436 (citing
29 U.S.C. § 411(a)(1)–(2)).
Two separate provisions allow for enforcement of the
rights enumerated in § 101. Section 102 creates a private
right of action for the infringement of any Title I rights,
providing, in pertinent part:
Any person whose rights secured by the
provisions of this subchapter have been
infringed by any violation of this subchapter
may bring a civil action in a district court of
the United States for such relief (including
injunctions) as may be appropriate.
29 U.S.C. § 412. Section 609, which is not in Title I,
similarly provides:
It shall be unlawful for any labor organization,
or any officer, agent, shop steward, or other
representative of a labor organization, or any
employee thereof to fine, suspend, expel, or
3
Of particular relevance, § 101(a)(2) provides, in pertinent part:
Every member of any labor organization shall have the
right to meet and assemble freely with other members;
and to express any views, arguments, or opinions; and
to express at meetings of the labor organization his
views, upon candidates in an election of the labor
organization or upon any business properly before the
meeting, subject to the organization’s established and
reasonable rules pertaining to the conduct of meetings.
29 U.S.C. § 411(a)(2).
USW LOCAL 12-369 V. USW INT’L 19
otherwise discipline any of its members for
exercising any right to which he is entitled
under the provisions of this chapter. The
provisions of section 412 of this title shall be
applicable in the enforcement of this section.
29 U.S.C. § 529 (emphasis added).
The primary difference between § 609 and § 102 is that
§ 609 protects against retaliation for the exercise of any right
secured under the LMRDA, whereas § 102 only protects
rights secured under Title I.4 See Finnegan, 456 U.S. at 439
n.10.
In Finnegan, the Supreme Court limited the reach of both
§ 609 and § 102 with respect to appointed union officers.
The plaintiffs in Finnegan were former business agents of a
local who had openly supported the incumbent candidate in
the local’s presidential election. See id. at 433. The agents
had been appointed by this incumbent, and when the
challenger won the election, he discharged the agents from
their positions. See id. at 434–44. The Court held that the
agents could not maintain a cause of action under either § 609
or § 102. With respect to § 609, the Court held that term
“discipline” as used in the provision “refers only to retaliatory
actions that affect a union member’s rights or status as a
member of the union.” Id. at 437. In other words, § 609
4
As the Supreme Court explained in Finnegan, the substantial overlap
between § 609 and § 102 is likely attributable to hasty legislative drafting.
See Finnegan, 456 U.S. at 439 n.10. Section 609 was originally drafted
as a criminal provision. See id. It was later amended to allow for civil
enforcement by the Secretary of Labor, and it was only a day before final
passage that it was transformed into a private remedy. See id.
20 USW LOCAL 12-369 V. USW INT’L
encompasses only “punitive actions taken against union
members as members.” Id. at 437–38.
With respect to § 102, the Court noted the possibility that
“a litigant may maintain an action under § 102 – to redress an
‘infringement’ of ‘rights secured’ under Title I – without
necessarily stating a violation of § 609.” Id. at 439. The
Court held, however, that “whatever limits Title I places on
a union’s authority to utilize dismissal from union office . . . ,
it does not restrict the freedom of an elected union leader to
choose a staff whose views are compatible with his own.” Id.
at 441 (internal citation omitted).
In Sheet Metal Workers’ International Ass’n v. Lynn,
488 U.S. 347 (1989), the Court declined to extend Finnegan’s
§ 102 analysis to elected union officers. The plaintiff in Lynn
was an elected business representative who was removed
from his position after opposing a measure advocated by the
local’s leadership. See id. at 349–50. He brought suit under
§ 102, alleging that his removal violated the free speech
protections of § 101(a)(2). See id. at 350. The Court
distinguished Finnegan, reasoning that, in light of the
LMRDA’s democratic governance goals, the retaliatory
removal of an elected officer presents significantly greater
concerns than does the removal of an appointed official. See
id. at 353–55. The Court expressly noted, however, that its
holding was limited to § 102, as it was not presented with a
claim under § 609. See id. at 353 n.5.
After Finnegan and Lynn, it is established that an
appointed union officer may not bring suit under either § 102
or § 609 for retaliation suffered in his official capacity, but an
elected officer can bring suit under § 102 when faced with
such retaliation. The question presented here, which no Court
USW LOCAL 12-369 V. USW INT’L 21
of Appeals has addressed since Finnegan and Lynn, is
whether an elected officer can also maintain an action under
§ 609.
Although Finnegan and Lynn are admittedly in some
tension, they can be reconciled for purposes of the present
inquiry. Finnegan’s discussion of § 609 was in absolute
terms that did not admit of a distinction between appointed
and elected officers. The Court emphasized multiple times
that the term “discipline” as used in § 609 only encompasses
actions that affect an individual’s status as a member of a
union, not as an employee. See Finnegan, 456 U.S. at
437–38. In contrast, the Court’s discussion of § 102 was
predicated almost entirely on the appointed nature of the
officers in question, with the Court even acknowledging that
other circumstances could exist in which union officers could
maintain suit under § 102, if not § 609. See id. at 440–42. In
Lynn, the Court can be viewed as delineating such
circumstances. Indeed, the Lynn Court employed language
suggesting that it is Title I rights – which are the exclusive
focus of § 102, but not § 609 – that present unique concerns
when dealing with elected versus appointed officers. See
Lynn, 488 U.S. at 355 (“[T]he potential chilling effect on
Title I free speech rights is more pronounced when elected
officials are discharged. Not only is the fired official likely
to be chilled in the exercise of his own free speech rights, but
so are the members who voted for him.”).
Even if doubts lingered as to the proper synthesis of
Finnegan and Lynn, the question at hand can be resolved
under basic principles of statutory interpretation. Congress
employed language nearly identical to that in § 609 in
§ 101(a)(5) of Title I, which affords due process protections
against disciplinary action. That section provides, “No
22 USW LOCAL 12-369 V. USW INT’L
member of any labor organization may be fined, suspended,
expelled, or otherwise disciplined . . . unless such member
has been (A) served with written specific charges; (B) given
a reasonable time to prepare his defense; (C) afforded a full
and fair hearing.” 29 U.S.C. § 411(a)(5) (emphasis added).
The Court has held that the phrase “otherwise discipline[d]”
carries the same meaning across § 101(a)(5) and § 609. See
Breininger v. Sheet Metal Workers Int’l Ass’n Local Union
No. 6, 493 U.S. 67, 90 n.13 (1989); Finnegan, 456 U.S. at
438 & n.9.
The Conference Report accompanying the final passage
of the LMRDA clarified that the “prohibition [in § 101(a)(5)]
on suspension without observing certain safeguards applies
only to suspension of membership in the union; it does not
refer to suspension of a member’s status as an officer of the
union.” H.R. Rep. No. 86-1147, at 31 (1959) (Conf. Rep.)
(emphasis added). Thus, it is evident that Congress did not
intend for § 101(a)(5) to protect against disciplinary actions
that impinge on the incidents of union employment,
regardless of appointed versus elected status. And because
the operative language of § 609 is to be accorded the same
meaning, Breininger, 493 U.S. at 90 n.13, it follows that
§ 609 likewise does not apply to actions directed against
union officers in their official capacities.5
5
The Supreme Court endorsed this analysis in Finnegan. See 456 U.S.
at 438 & n.9. It is in part for this reason that we are not bound by our
previous decisions in Grand Lodge of International Ass’n of Machinists
v. King, 335 F.2d 340 (9th Cir. 1964), and Cooke v. Orange Belt District
Council of Painters No. 48, 529 F.2d 815 (9th Cir. 1976). In Grand
Lodge, we extended the protections of § 609 to appointed union officers.
See 335 F.2d at 344–46. We noted the parallel language, and clear
legislative history, of § 101(a)(5), but we concluded that differential
treatment was warranted for this provision and § 609. See id. at 341–46.
USW LOCAL 12-369 V. USW INT’L 23
Because the alleged retaliatory actions directed toward
Green impinged only upon her status as a union officer, she
may not seek redress for these actions under § 609.
Accordingly, we affirm the district court’s dismissal of
Green’s § 609 claims.
B. Judgment on Remaining Claims Entered at Trial
The district court entered judgment against Green on her
remaining claims following the ten-day bench trial conducted
in November 2009. These claims were brought under
LMRDA §§ 101 and 102, LMRA § 301, 42 U.S.C. § 1981,
Title VII, and the Washington Law Against Discrimination
(“WLAD”). Green challenges the district court’s rulings on
each of these claims.
1. Legal Principles
To state a claim for a violation of LMRDA § 101(a)(2),
a union member must demonstrate that: “(1) he or she
In Cooke, we assumed that Grand Lodge’s § 609 holding applied in the
context of an elected officer (without discussion of a possible distinction
between elected and appointed officers). See 529 F.2d at 818.
In Finnegan, the Court expressly rejected Grand Lodge’s differential
treatment of § 101(a)(5) and § 609, and instead endorsed the inference that
we draw today from § 101(a)(5). See 456 U.S. at 438 & n.9. Thus, not
only did Finnegan overrule Grand Lodge’s holding with respect to
appointed officers specifically, but it also directly “undercut the theory or
reasoning” on which Cooke – through Grand Lodge – rested. Miller v.
Gammie, 335 F.3d 889, 900 (9th Cir. 2003) (en banc). Accordingly, to the
extent Grand Lodge and Cooke stand for the proposition that § 609
protects elected union officers in their official capacities, they have been
abrogated by Finnegan and are not controlling. See id. at 899–900.
Indeed, the parties do not argue to the contrary.
24 USW LOCAL 12-369 V. USW INT’L
exercised the right to oppose union policies; (2) he or she was
subjected to retaliatory action; and (3) the retaliatory action
was a direct result of his or her decision to express
disagreement.” Casumpang v. Int’l Longshoremen’s &
Warehouseman’s Union, Local 142, 269 F.3d 1042, 1058 (9th
Cir. 2001) (internal quotation marks and alteration omitted).
LMRA § 301 provides federal courts jurisdiction to
enforce contracts “‘between an employer and a labor
organization or between . . . labor organizations.’” SEIU v.
Nat’l Union of Healthcare Workers, 598 F.3d 1061, 1069 (9th
Cir. 2010) (quoting 29 U.S.C. § 185(a)) (alteration omitted).
Green’s claims under this provision proceeded at trial under
the theory that the constitutions of the International and
HAMTC prohibit discrimination on the basis of race and
gender, or alternatively, that officials of the International and
HAMTC interpreted their constitutions in bad faith. Bad faith
in this context can be found “on evidence that union officials
acted contrary to the [union’s] best interest, out of
self-interest, or in an unconscionable or outrageous way.”
Teamsters Joint Council No. 42 v. Int’l Bhd. of Teamsters,
AFL-CIO, 82 F.3d 303, 306 (9th Cir. 1996).
Under § 703(c)(1) of Title VII of the Civil Rights Act of
1964, it is “an unlawful employment practice for a labor
organization . . . to discriminate against [] any individual
because of his race, color, religion, sex, or national origin.”
42 U.S.C. § 2000e-2(c)(1). The well-established burden-
shifting framework of McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973), applies to a Title VII action against a
labor union. Beck v. United Food & Commercial Workers
Union, Local 99, 506 F.3d 874, 882 (9th Cir. 2007). Under
this framework, if the plaintiff establishes a prima facie case
of discrimination and the defendant produces evidence of a
USW LOCAL 12-369 V. USW INT’L 25
legitimate, non-discriminatory reason for its actions, “the
plaintiff retains [the] ultimate burden of persuading the trier
of fact that he has been the victim of intentional
discrimination.” Id. at 883 (internal quotation marks and
alterations omitted). The same legal principles that apply to
a Title VII claim apply to a claim of race discrimination
under 42 U.S.C. § 1981. See Manatt v. Bank of Am., NA,
339 F.3d 792, 797 (9th Cir. 2003).
Finally, under the WLAD, “[t]he plaintiff’s ultimate
burden at trial . . . is to present evidence sufficient for a
reasonable trier of fact to conclude that the defendant’s
alleged discriminatory motive was more likely than not a
substantial factor in its adverse employment action.” Fulton
v. Dep’t of Soc. & Health Servs., 279 P.3d 500, 507 (Wash.
Ct. App. 2012) (citing Hill v. BCTI Income Fund-I, 23 P.3d
440, 449 (Wash. 2001)).
2. District Court’s Findings of Fact
As indicated above, Green’s claims at trial all rested on
the notion that Defendants retaliated against her for having
engaged in protected speech or discriminated against her on
account of her race or gender.6 Based on its findings of fact
with respect to the discrete incidents and controversies
(described below), the district court reached a broader finding
6
The one arguable exception is Green’s claim under LMRA § 301 that
the International and HAMTC interpreted their constitutions in bad faith.
It appears, however, that any notion of bad faith would be based on the
theory that the International and HAMTC were actually motivated by
retaliatory or discriminatory animus. Regardless, the district court’s
factual determination that the International and HAMTC had legitimate,
non-discriminatory reasons for their actions also defeats the suggestion
that they acted in bad faith.
26 USW LOCAL 12-369 V. USW INT’L
that Defendants had not engaged in unlawful retaliation or
discrimination. To prevail on appeal, Green must
demonstrate that this ultimate factual determination was
clearly erroneous. See Anderson, 470 U.S. at 566; Beck,
506 F.3d at 882.
This would be a tall order in any context, but it is a
particularly difficult task here. The experienced district judge
presided over a ten-day bench trial in a case with an
extraordinarily complex and lengthy history. The thrust of
the district court’s analysis was that, rather than reflecting
discriminatory or retaliatory animus, the actions taken against
Green were attributable to the competing interests of rival
factions within the Local, or the need to alleviate the tension
created thereby. After reviewing the record and the district
court’s analysis of the specific incidents underlying Green’s
claims, we are unable to conclude that this determination was
“illogical, implausible, or without support in inferences that
may be drawn from the facts in the record.” Hinkson,
585 F.3d at 1263. We emphasize that this would be a
difficult question if presented de novo, but under the
deferential standard of review that governs, “the district
court’s account of the evidence is plausible in light of the
record viewed in its entirety.” See Anderson, 470 U.S. at
573–74.
Below we consider the district court’s findings on those
allegations most important to its ultimate finding of fact.
a. Steward Election in 2005
The district court found that there were legitimate reasons
for the attempted restriction of Green’s position as steward.
However, we need not consider the district court’s precise
USW LOCAL 12-369 V. USW INT’L 27
findings on this issue. All of the actors involved in the
steward dispute were affiliated with the Local, and Green
presents no facts establishing that the International
“instigated, supported, ratified or encouraged the Local’s
activities or that the Local acted pursuant to its agreement
with the International.” Moore v. Local Union 569 of IBEW,
989 F.2d 1534, 1543 (9th Cir. 1993). The International was
not even affiliated with the Local for the majority of the
period at issue; the steward controversy began in January
2005 and was resolved in May 2005, while the International
only merged with PACE in April 2005. Because Green is
unable to connect the International (or HAMTC) to the
steward allegations, the allegations cannot support a finding
of liability.7 See id.
b. Decertification of Spokane Units
The district court found no impropriety in the
International’s actions relating to the decertification of two
units of the Spokane branch. Rather, the district court
concluded that Green had been excluded from the meetings
concerning the decertification efforts “because it was
perceived that her Presidency was part of the reason for the
desire to disassociate with the Local and perhaps the
International.”
There is ample evidence to support the district court’s
findings on this issue. As noted by the district court, Green
was made aware at her first Executive Board meeting that her
proposed changes to union governance – particularly her plan
7
The same holds true with respect to the racially charged comment
made by Karen Alexander – a member of the Local’s Executive Board –
following Green’s election as President.
28 USW LOCAL 12-369 V. USW INT’L
to subject actions by the Executive Board to a vote at the
monthly membership meetings in Richland – could lead to
the Spokane units leaving the Local. Green’s response was
only, “OK.” Green therefore cannot dispute that the members
of the Spokane branch had a genuine desire to decertify from
the Local that was based, at least in part, on her actions.
Given such, it was reasonable for the district court to
conclude that the International was acting to alleviate discord
within the Local and prevent the units from leaving the
International altogether.
c. Signature Authority
This is the central allegation that involves HAMTC and
Molnaa. The district court concluded that Molnaa did not
have improper motives in declining to recognize Green’s
signature authority. In reaching this conclusion, the district
court made two separate, but related findings: (1) Molnaa
had a reasonable policy of only recognizing the signature
authority of staff representatives; and (2) Molnaa did not
want to deviate from this policy because to do so would
embroil him in the ongoing dispute over the balance of power
between Green and the Executive Board.
There is sufficient evidence to support these findings. It
is undisputed that the prior presidents whose signature
authority had been recognized were staff representatives,
while the only other president who was not a staff
representative did not have signature authority. Moreover,
Molnaa recognized Green’s signature authority immediately
upon being requested to do so by the International. In this
regard, Molnaa testified:
USW LOCAL 12-369 V. USW INT’L 29
I had no idea of the authority of the president
of that local. However, my experience has
shown me that, you know, you’ve got a local
level, and you work your way up to district,
internationals, that the international is the
parent organization. Their bylaws are based
off their constitution, and they have [a] certain
amount of authority, and I recognize that.
And Mr. Stroops was an International
representative, and if that resolved the
problem, I would accept that from him.
This testimony supports the inference that Molnaa had
initially declined to deviate from his standard practice
because he did not want to become involved in the intra-
Local dispute over Green’s authority. By following the
request of the International, Molnaa could continue to be seen
as not taking sides in the feud.
d. Maki Commission and Imposition of
Administratorship
Like the district court, we consider the change to the Maki
report in August 2007 and the resulting imposition of an
administratorship to be the most troubling of the events in
question. In Maki’s initial report, issued on May 24, 2007,
Maki found that the charges against Green were baseless. Yet
less than three months later, Maki amended the report to
recommend that an administratorship be imposed and that
Green be removed from office.
This reversal is of concern for several reasons. As a
matter of process, Maki conceded that he had not provided
Green an opportunity to respond to the new allegations and
30 USW LOCAL 12-369 V. USW INT’L
had just assumed they were true. Substantively, one of the
primary allegations relied upon by Maki – that the Local was
not defending itself against Green’s 2007 EEOC charge – was
largely not accurate. As Bonds conceded in his testimony,
the Local had in fact been defended against the EEOC charge
because the Gilbert & Sackman firm had submitted a
response on behalf of both the International and the Local.
The Local’s decision was only not to authorize funds to pay
for this representation.
After indicating that it had “carefully considered the Maki
testimony explaining his changes and the testimony of
Bonds,” the district court found that the written reasons in the
second Maki report (and Bonds’ letter) were sufficient to
justify the administratorship, and that the other problems
made known to the International but not referenced in the
written explanations bolstered the decision. The district court
found that the administratorship had been imposed because
the turmoil within the Local had simply reached a breaking
point, such that action needed to be taken in the interests of
the Local’s members.
Despite the irregularities in the events leading to the
administratorship, the district court’s finding is a reasonable
inference to be drawn from the record. Putting aside whether
the Local defended itself against the EEOC complaint,
Maki’s second report and Bonds’ letter also explained that
Green had terminated two full-time employees, another
employee had resigned, and members of the Local’s
committees were being removed without the approval of the
Executive Board. This was uncontroverted evidence that the
union was in a state of disarray.
USW LOCAL 12-369 V. USW INT’L 31
More importantly, Bonds provided credible testimony that
supported the district court’s explanation. Bonds testified:
[T]here [was] such . . . turmoil going on in
that local with a great portion of the executive
board being opposed to them and constantly
stirring up problems that it was causing the
Local not to be able to operate.
And like I said, the only mechanism I have for
changing things is the administratorship. I
cannot come in there and take Margie Myers
and remove her from a trustee, no more than
I can go and take Stephanie Green and remove
her as president of the Local. What I can do
is appoint an administrator that can go look at
the facts and try to change things and try to
bring both sides together, possibly reappoint
the same officers. You know, I – this was not
anything more than me trying to figure out a
way to fix how this local was operating. And
it was not all [Green] and Dave Roberts’s
fault. It was everybody’s fault.
Bonds later added that one of the reasons he had
recommended the administratorship was that he continued to
receive petitions from outlying branches seeking to decertify
from the Local, just as the Spokane units had.
Given the history of events, it was permissible for the
district court to credit this testimony. The record is replete
with constant infighting between the competing factions
within the Local, with this tension only escalating over time.
The district court reasonably concluded that it was the
32 USW LOCAL 12-369 V. USW INT’L
complications created by this tension, particularly the threat
of additional units decertifying, that led that the International
to determine that a change in leadership was necessary. The
district court’s assessment is strengthened by the fact the
International had actually supported Green in various ways
since her election as President. For instance, the International
had overturned the decision to rerun the election (ordering
that Green be seated) and had requested that HAMTC
recognize Green’s signature authority. Thus, there is no
evidence that, prior to the administratorship, the International
engaged in a pattern of discrimination or retaliation directed
at Green.
Accordingly, the district court did not commit clear error
in assessing the reasons for the imposition of the
administratorship, which is the primary basis for Green’s
claims against the International.
e. Kins Commission
The final event that must be considered is the
appointment of the Kins Commission in October 2007.
Green emphasizes the e-mail sent by Margie Myers to Gerard
and Bonds prior to the decision to appoint the commission, in
which Myers wrote, “If you get in here now, you might
possibly save this local and yourselves $50K that she is trying
to get to her attorney to fight you!” Gerard wrote to Bonds in
response, “I think we need to move qui[c]ker . . . have we
done an audit . . . what are we doing.”
The district court determined that the Kins Commission
was not instituted for improper reasons. Again, there is
sufficient evidence to support this finding. Green contends
that the inference to be drawn from the Myers e-mail is that
USW LOCAL 12-369 V. USW INT’L 33
the International was motived by a desire to suppress her
speech, but a competing inference is that the e-mail merely
reinforced the dysfunctional nature of the Local, which had
previously led to the administratorship being imposed in
August 2007. Indeed, the problems within the Local had
persisted since the administratorship was dissolved by the
district court on procedural grounds. As described in Bonds’
letter to Gerard recommending appointment of the Kins
Commission, Green had conducted a special meeting with
insufficient notice, members from outlying branches
continued to complain about their exclusion from the
democratic processes of the Local, and HAMTC had begun
to discuss the possibility of expelling the Local. If the
turmoil within the Local was the cause of the August 2007
administratorship, given the subsequent events, the same
motivation almost surely drove the decision to convene
another commission. The district court’s findings of fact on
this issue are not clearly erroneous.
3. Summary
Given the district court’s analysis of Green’s allegations,
both as discrete incidents and as part of a broader course of
conduct, we hold that it did not clearly err in finding that
Defendants did not discriminate or retaliate against Green.
Accordingly, we affirm the district court’s judgment entered
at trial.
IV. CONCLUSION
For the reasons stated above, the judgment of the district
court is AFFIRMED.