Conille v. Council 93

United States Court of Appeals
For the First Circuit

No. 18-1038

PHARAMOND CONILLE; YVES RIGAUD; MICHELET AUGUSTE; JACQUES
LARAQUE; GUY RAPHAEL; JEAN LOUIS; JAMES SHEA; ELGA BERNARD;
HODELIN AUBOURG; GABRIEL BERNARD; VERLEEN LEWIS; CARMESUEZ
MICHAUD; KALLOT JEAN-FRANCOIS; MONIQUE MODAN; JOESEPH BERLUS;
MARIE AVELINE FORTUNAT; VALENTINE DUBUISSON; FRANCHETTE
DORSAINVIL; SALLY ROGERS; STANLEY SIENKIEWICZ; YVONNE VASSELL;
LOCAL 402, AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL
EMPLOYEES,

Plaintiffs, Appellees,

v.

COUNCIL 93, AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL
EMPLOYEES; AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL
EMPLOYEES,

Defendants, Appellants.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS

[Hon. William G. Young, U.S. District Judge]

Before

Howard, Chief Judge,
Torruella and Kayatta, Circuit Judges.

Paul F. Kelly, with whom Sasha N. Gillin and Segal Roitman,
LLP were on brief for appellants.
Mark D. Stern, with whom Mark D. Stern P.C., Arthur L.
Fox, II, and Lobel, Novins & Lamont, LLP were on brief, for
appellees.
Michael J. Goldberg on brief for The Association for Union
Democracy, amicus curiae.
August 24, 2020
 HOWARD, Chief Judge. This appeal requires us to consider

the proper role of the courts in adjudicating an intra-union

dispute that implicates both Titles I and IV of the Labor-

Management Reporting and Disclosure Act of 1959 ("LMRDA"). The

case arises out of a dispute between Council 93, a regional

division of the American Federation of State, County and Municipal

Employees ("AFSCME"), and one of its local divisions, Local 402,

over the allocation of seats on Council 93's governing executive

board. The plaintiffs, Pharamond Conille and other members of

Local 402, brought suit in the District of Massachusetts, alleging

that the allocation of seats on the executive board violated their

right to an equal vote under both Title I of the LMRDA, 29 U.S.C.

§ 411, and the AFSCME constitution. The district court agreed and

ordered Council 93 to reconstitute its executive board "within one

year so that there may be proper proportional representation for

its constituent locals and members." Conille v. Council 93, Am.

Fed'n of State, Cty. & Mun. Emps., No. 17-11495, 2018 WL 2223672,

at *5 (D. Mass. May 15, 2018).

After careful consideration, we conclude that, even if

the composition of Council 93's executive board violates the equal

rights provision of Title I, the remedy for any such violation

can, in the first instance, be implemented only by the Secretary

of Labor under the remedial provisions of Title IV. We also

conclude that the plaintiffs have not shown that the union

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constitution supports their claims. We therefore reverse the

district court's judgment on all claims except for Council 93's

counterclaim, and remand for further proceedings.

I.

We begin with a sketch of AFSCME's organizational

structure and the pertinent facts underlying this case.

A.

AFSCME is a large international trade union organization

under the umbrella of the American Federation of Labor-Congress of

Industrial Organizations ("AFL-CIO"). Representing public service

employees throughout the United States, AFSCME is governed by a

biennial convention composed of delegates elected by local unions

in proportion to their membership. These delegates in turn elect

an executive board composed of a president, a secretary-treasurer,

and thirty-four vice presidents representing AFSCME's twenty

geographical and five organizational legislative districts.

Council 93 is the governing body for the legislative district

covering Northern New England, and the Northern New England

legislative district is represented by one vice president on the

AFSCME executive board. The AFSCME executive board manages the

day-to-day affairs of the union and serves as the union's governing

body when the convention is not in session. Plaintiffs do not

challenge the manner in which AFSCME selects its governing bodies

and officers. Rather, they train their criticism on the methods

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by which the governing bodies and officers of Council 93 are

selected.

As the intermediate body governing of one of AFSCME's

legislative districts, Council 93 is tasked with coordinating the

activities of AFSCME's local unions ("locals"), which are the

narrowest formally recognized components of AFSCME. Council 93

covers the Northern New England legislative district and

represents locals in Maine, Massachusetts, New Hampshire, and

Vermont. It consists of approximately 500 affiliated locals,

representing approximately 45,000 members. Like AFSCME,

Council 93 is governed by a biennial convention composed of

delegates representing the locals that make up Council 93 and an

executive board elected by the convention delegates.

In choosing Council officers, voting begins at the local

union level, where each qualified union member votes to select the

delegates representing that local. Plaintiffs offer no criticism

of that process. The delegates then attend a regular convention

every two years which, while in session, governs Council 93. They

may also attend legislative conferences and special conventions.

At the regular conventions, all delegates vote on all matters of

union governance and possess the power to amend Council 93's

governing constitution. They also select by a vote of all

delegates the five principal officers of the Council (president,

executive vice president, recording secretary, secretary-

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treasurer, and sergeant-at-arms). For these decisions, each

delegate's vote is weighted to approximate the number of members

of the local represented by the delegate. Plaintiffs do not

criticize this process, either. The five chosen principal officers

lead the Council's executive board, to which forty-five vice

presidents also belong. That executive board is responsible for

the day-to-day governance of Council 93, and it is the selection

of those vice presidents upon which plaintiffs focus their

criticism.

To choose the vice presidents, Council 93's constitution

divides the locals into thirteen legislative districts -- nine

geographic and four organizational. These legislative districts

do not have independent governing bodies; rather, they function

solely as a way to divide delegates to nominate and elect members

of the executive board. The Council 93 constitution allocates a

specific number of vice president positions to each legislative

district. The number allocated to each district bears little, if

any, relationship to the number of members in that district.

Rather, the allocations are artifacts of agreements made over time

as locals have joined the Council. For example, a single vice

president is chosen by the delegates representing over 1,800

members in the Vermont district, while four vice presidents are

chosen by the delegates representing 1,500 employees in a

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"Department of Mental Health" legislative district. It is this

type of disproportionality that triggers plaintiffs' displeasure.

B.

Pharamond Conille and the other plaintiffs are members

of the now-deactivated Local 402, a local labor union representing

employees of the Massachusetts Department of Developmental

Services ("DDS") who worked at the Walter E. Fernald State School

in Waverly, Massachusetts. AFSCME chartered Local 402 in 1953,

and until its deactivation, Local 402 maintained an affiliation

with both AFSCME and Council 93. Conille and non-party Raymond

McKinnon were the vice president and president, respectively, of

Local 402 at the time of its deactivation in March 2017. Conille,

2018 WL 2223672, at *2. Conille also sat on the Council 93

executive board. Id. at *3–4.

C.

In February 2017, the Fernald Development Center closed

permanently, and its employees, including the members of

Local 402, were transferred to other state facilities and

programs. Id. at *2-3. After Fernald's closure, certain members

of the executive board for Council 93 recommended to AFSCME that

Local 402 be deactivated because there were no longer any union

members working within Local 402's jurisdiction. Id.

Conille and McKinnon objected to the deactivation; both

wrote to several individuals within Council 93, as well as to

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AFSCME's Charter and Constitution Department, opposing

deactivation and requesting that Local 402's charter be updated to

include several community worksites that Local 402 had been

representing. Id. at *3. AFSCME declined this request on the

basis that Council 93 opposed it. Id. In May 2017, a special

assistant to the executive director of Council 93 sent an email to

DDS's human resources department advising DDS of Local 402's

deactivation. Conille, 2018 WL 2223672, at *3. A few weeks after

this deactivation notice, Local 402 received an additional notice

ordering it to return funds and property to Council 93. Id.

Shortly thereafter, McKinnon filed charges with AFSCME's

judicial panel against Council 93 for interfering with the ability

of Local 402's officers to perform their duties. Id. The judicial

panel ultimately declined to take any action based on these

charges, and the AFSCME secretary-treasurer instead issued a

notice requiring the transfer of funds and property from the

deactivated Local 402 to AFSCME. AFSCME also responded to

objections lodged by Local 402 with a letter stating that the

decision to deactivate Local 402 was made in accordance with the

AFSCME constitution. Conille, 2018 WL 2223672, at *3. As a result

of the deactivation, the charters of two other local unions --

Local 646 and Local 1730 -- were amended to allow those locals to

absorb the members of Local 402. Id.

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 Conille became a member of Local 646 and, as a result,

found his Council 93 executive board post in jeopardy. The

Council 93 constitution prohibits two members from the same local

from sitting on the executive board at the same time and one of

Local 646's members was already serving on Council 93's executive

board. Conille asserts that, at the end of the June 2017 executive

board meeting, members of the board informed him that it would be

his last meeting because Local 646 already had a member on the

board. Conille, 2018 WL 2223672, at *4. Conille objected and,

after the meeting, sent a letter to Council 93's president and

vice president, arguing that their actions violated the AFSCME

constitution and demanding that he be allowed to finish his term.

Id. The president denied telling Conille that he would be removed

and stated that the status of Conille's seat would be discussed at

the next scheduled Council 93 executive board meeting. Id.

II.

In August 2017, members of Local 402 filed a five-count

complaint for injunctive, declaratory, and other relief against

AFSCME and Council 93 on behalf of themselves and Local 402

challenging the local's deactivation and the manner in which vice

presidents are elected to the Council 93 executive board. AFSCME

in turn filed a counterclaim seeking to compel the plaintiffs to

turn over any assets, accounts, books, and records of the

deactivated local as required by the AFSCME constitution.

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 After a two-day bench trial, the district court issued

an oral decision, subsequently supplemented by a written order of

findings of fact and conclusions of law. Conille, 2018 WL 2223672.

With respect to the challenge to the manner in which vice

presidents are elected to Council 93's executive board, the

district court concluded that proportionality of representation

"simply did not exist" on the board and that, instead,

"[r]epresentation seems to be nothing more than a hodge-podge of

historic deals made as unionized employees became locals within

AFSCME." Id. at *4. The court also ordered that all interim

rulings of the incumbent board would be "provisional," unless and

until approved by a new, proportionately constituted board. See

Id. at *1. Though it did not find that strict proportionality was

required, the district court held that there "must be a neutral

principle that would justify the gross disproportionality between

membership and board seats on Council 93 allocated to the

legislative districts." Id. at *5. To remedy the failing that it

discerned, the district court ordered Council 93 to reconstitute

the executive board "so that there may be proper proportional

representation for its constituent locals and members." Id.

As to the deactivation of Local 402, the district court

found that the plaintiffs had failed to exhaust internal union

remedies because they had not requested a formal appeal to the

international executive board. Id. It also held that Local 402

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was properly deactivated in accordance with the AFSCME

constitution and the LMRDA and that it would defer to Council 93's

and AFSCME's reasoning for deactivating the local. Conille, 2018

WL 2223672, at *6. Because Local 402 agreed during trial to turn

over funds and property to AFSCME if the court concluded that the

deactivation was proper, the district court dismissed AFSCME's

counterclaim as moot. Id. at *7.

Council 93 and AFSCME timely appealed the district

court's rulings with respect to the composition of Council 93's

executive board and the dismissal of the counterclaim. The

plaintiffs separately appealed the district court's findings with

respect to Local 402's deactivation.1 In deciding the plaintiffs'

appeal with respect to Local 402's deactivation, we concluded that

"Local 402 exercised its right to appeal to the [international

executive board]." Conille v. Council 93, Am. Fed'n of State,

Cty. & Mun. Emps., 935 F.3d 1, 9 (1st Cir. 2019). "The fact that

Local 402 was never afforded an appeal is a breach of contract,

actionable under Section 301(a) of the [Labor Management Relations

Act]." Id. We remanded that portion of the case to the district

court to order AFSCME to either rescind Local 402's deactivation

or proceed in the ordinary course to hear the appeal. Id. Because

AFSCME's counterclaim depends on the determination of whether

1In an order issued during the pendency of this appeal, we
allowed the plaintiffs' appeal to proceed separately.

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Local 402's deactivation was proper, any claim regarding failure

to return the funds is not yet ripe, so we accordingly affirm the

denial of the counterclaim and direct the district court to dismiss

the counterclaim without prejudice.

III.

We focus our attention on the plaintiffs' claim that the

allocation of seats on Council 93's executive board violates the

guarantees of equal protection and the right to vote that

plaintiffs say are codified in Title I of the LMRDA, 29 U.S.C.

§ 411(a)(1), and in the AFSCME constitution. The plaintiffs say

that these guarantees have been breached because the allocation is

neither proportional to the membership of each group of locals nor

governed by a neutral principle. The parties have not objected to

the district court's findings of fact. Consequently, in evaluating

this claim, we accept the district court's factual determinations

and will review de novo the district court's construction of the

text of the LMRDA and the union constitution. See Buntin v. City

of Boston, 857 F.3d 69, 72 (1st Cir. 2017) ("Because the question

is one of statutory interpretation, we exercise de novo review.");

Calderón-Ortega v. United States, 753 F.3d 250, 252 (1st Cir. 2014)

("[W]e review the trier's conclusions of law de novo.").

A.

Originally enacted in 1959, the LMRDA "was Congress'

first major attempt to regulate the internal affairs of labor

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unions." Local No. 82, Furniture & Piano Moving, Furniture Store

Drivers v. Crowley, 467 U.S. 526, 528 (1984). It was designed to

"protect[] the equal rights of union members to participate in the

internal affairs of their unions" and "to eliminate or prevent

improper practices on the part of labor organizations." McCafferty

v. Local 254, Serv. Emps. Int'l Union, 186 F.3d 52, 57 (1st Cir.

1999) (quoting 29 U.S.C. § 401).

As relevant here, the LMRDA includes two separate

provisions, located in Titles I and IV, regulating a union's

internal governance structure and the conduct of its elections.

The first, contained in Title I, the so-called "Labor Bill of

Rights," guarantees to all union members "equal rights and

privileges within [the] organization to nominate candidates, to

vote in elections or referendums . . . , and to participate in the

deliberations and voting upon the business of such meetings,

subject to reasonable rules and regulations in such organization's

constitution and bylaws." 29 U.S.C. § 411(a)(1). As the name

suggests, the focus of Title I is to ensure equal treatment among

union members and to guarantee union members' rights to speak and

assemble without fear of improper retaliation or discipline from

within the labor organization. McCafferty, 186 F.3d at 57 (citing

Molina v. Union de Trabajadores de Muelles y Ramas Anexas,

Local 1740, 762 F.2d 166, 167 (1st Cir. 1985)); cf. United

Steelworkers v. Sadlowski, 457 U.S. 102, 109 (1982) ("[W]e do not

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believe that [Title I] should be read as incorporating the entire

body of First Amendment law, so that the scope of protections

afforded by the statute coincides with the protections afforded by

the [federal] Constitution."). By its terms, Title I supersedes

any contrary provision in a union's internal governance documents

and grants individual union members the right to sue in federal

court to enforce its guarantees. 29 U.S.C. § 411(a)(4), (b).

While Title I establishes the basic rights to which all

union members are entitled, Title IV "sets out detailed

regulations 'aimed solely at protecting union democracy through

free and democratic elections.'" McCafferty, 186 F.3d at 57

(quoting Molina, 762 F.3d at 167). Most relevant to our present

inquiry, Title IV provides that "[o]fficers of intermediate bodies

. . . shall be elected . . . by secret ballot among the members in

good standing or by labor organization officers representative of

such members." 29 U.S.C. § 481(d). Title IV also sets forth

certain minimum requirements for union elections, including the

timing and manner of elections for union officers at the national,

intermediate, and local levels. Id.; see also Am. Fed'n of

Musicians v. Wittstein, 379 U.S. 171, 181 (1964) ("Title IV

contains elaborate statutory safeguards for the election of union

officers."); Harrington v. Chao, 280 F.3d 50, 53 (1st Cir. 2002)

("Title IV of the LMRDA . . . establishes minimum standards for

the election of union officers." (citation omitted)). As for

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enforcing these rights, "[the] primary responsibility . . . [is]

lodged with the Secretary of Labor." Crowley, 467 U.S. at 528;

see also Int'l Org. of Masters v. Brown, 498 U.S. 466, 476 (1991)

(noting that, with the exception of the union's obligation to mail

candidates' campaign literature, "other rights created by Title IV

. . . are judicially enforceable only in actions brought by the

Secretary of Labor"); Wirtz v. Local 153, Glass Bottle Blowers

Ass'n, 389 U.S. 463, 471 (1968) ("In the end there emerged a

general congressional policy to allow unions great latitude in

resolving their own internal controversies, and, where that fails,

to utilize the agencies of Government most familiar with union

problems to aid in bringing about a settlement through discussion

before resort to the courts." (internal quotations and citations

omitted)).

The statutory rights contained within Title I and

Title IV can sometimes seem to overlap, see Molina, 762 F.2d at

167-68, especially in cases like this one, where the alleged

wrongful conduct implicates both the structure of union elections

and the rights of individual union members to vote for the officers

of intermediate bodies. In terms of the substance of the rights

guaranteed, it is thus hardly surprising that the line between a

Title I and a Title IV violation is muddy. In Molina, we suggested

that a right was guaranteed by Title I if it was specific to an

individual member or group of members: "[t]he typical Title I

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claim," we held, "involves an allegation of unequal treatment among

union members." Id. at 168 (citing Calhoon v. Harvey, 379 U.S.

134, 139 (1964)). Because the union member "[did] not argue that

a rule was applied unevenly but that an evenly applied rule was

activated for an improper purpose," the right asserted derived

from Title IV, rather than from Title I. Id. at 169; see also

Fritsch v. Dist. Council No. 9, Bhd. of Painters, 493 F.2d 1061,

1063 (2d Cir. 1974) ("[T]he essence of Title I is the command not

to discriminate against members and classes of members in their

right to vote and nominate."). In other words, Molina requires

that we ask whether the violation asserted is personal to the

individual union member plaintiff or is instead shared by all

members who are entitled to representation by a particular body.

This case is something of a hybrid. It alleges that

specific groups of members -- those in certain locals -- are harmed

by the policy that could arguably be said to deny them equal

representation, à la Title I. Conversely, the election structure

applies evenly to all past, present, and future elections writ

large and, as a rule, may not have been enacted to further any

proper purpose, which suggests Title IV might be the better fit.

We need not parse this divide, however, because whether

the injury asserted is one that falls within Title I's guarantees

is not our sole inquiry. To decide whether the plaintiffs may

maintain an action under Title I, we also need to examine the

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remedy they seek, as Title I contains a separate limitation on the

power of courts to resolve the dispute: the complaint must seek

"appropriate" relief under that Title. See Crowley, 467 U.S. at

538. Where that condition is not satisfied, "even when Title I

violations are properly alleged and proved," the suit cannot be

"maintained." Id. at 543.

Crowley makes clear the need to consider the

appropriateness of relief in determining the extent of our

jurisdiction under Title I. Id. ("[W]hether a Title I suit may

properly be maintained by individual union members . . . depends

on the nature of the relief sought."). At issue in Crowley was

whether, under Title I, union members who did not have dues

receipts could be prohibited from participating in the union

officer nomination process, and the district court entered an

injunction while a union election was ongoing to preserve its

jurisdiction to decide the issue. Id. at 531–32. The Supreme

Court reversed, holding that "such judicial interference in an

ongoing union election is not appropriate relief under" Title I.

Id. at 529. The ongoing nature of the elections, however, was

only one factor that contributed to the Court's conclusion that

the relief was inappropriate; the case did not turn on the fact

that the elections were ongoing per se. See id. at 546 (noting

that Title I suits may be maintained during ongoing elections).

Rather, Title I expressly limits itself only to cases where "relief

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that may be ordered by a District Court" is "'appropriate' to any

given situation." Id.at 538 (emphasis added). The Court applied

that rule to find that the district court's injunction of an

ongoing election was inappropriate.

So, to decide the limits of our jurisdiction, we must

look to what makes relief "appropriate" under Title I. Crowley

reasoned that the enforcement and remedial provisions of Title I

cannot be interpreted in isolation but rather must be construed in

conjunction with the protections afforded in Title IV. See id. at

538–39. It then went on to discuss how broader remedial powers to

oversee elections have been vested with the Secretary of Labor

under Title IV. Id. at 539-40. It is these remedial powers that

can preclude relief under Title I. Like "post-election"

challenges to union elections, "Congress would [also] not have

considered" other remedies available under Title IV -- enjoining

an ongoing election, as was the case in Crowley, or "requiring and

judicially supervising a new election" -- "to be 'appropriate'

relief under Title I." Id. at 544. As the Court recognized:

nothing in the flurry of activity that
surrounded enactment of Title I . . .
indicates that Congress intended that Title to
reverse this consistent opposition to court
supervision of union elections. Although the
enactment of Title I offered additional
protection to union members, including the
establishment of various statutory safeguards
effective during the course of a union
election, there is no direct evidence to
suggest that Congress believed that

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 enforcement of Title I would either require or
allow courts to pre-empt the expertise of the
Secretary and supervise their own elections.

Id. at 545–46 (citations omitted). To be sure, the exclusivity

provision of Title IV, codified in 29 U.S.C. § 483, applies on its

face only to challenges to past elections. However, the Court in

Crowley rejected a reading of this section that would allow

individual union members to seek relief in a court, rather than

from the Secretary of Labor, for alleged violations that implicated

both Title I and Title IV, as long as those members were not

explicitly seeking to undo a completed election. Such a reading

would necessarily require the courts, in cases like this one, to

"pre-empt the expertise of the Secretary and supervise their own

elections." Id

Indeed, the remedy sought and awarded by the district

court in this case far exceeded what courts can do in Title I

cases. First, by deeming actions of the incumbent board

provisional and subject to ratification by a later board, the

district court's remedy effectively deprives the prior election of

its legitimacy and full effect. Second, by ordering a newly

constituted board, the make-up of which is subject to the court's

approval, the remedy effectively puts the district court in the

position of supervising a new election with significant discretion

to approve, or not, its processes and results. See Crowley, 467

U.S. at 548 (discussing how a "pre-election challenge" asking "the

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court to enjoin the union from preparing for or conducting any

election until the rules [a]re revised" is similarly barred (citing

Calhoon, 379 U.S. 134 (1964))); Knisley v. Teamsters Local 654,

844 F.2d 387, 390 (6th Cir. 1988) ("Title IV also precludes suits

brought under Title I where a plaintiff is challenging the validity

of an upcoming election and is seeking an injunction against that

election." (citing Crowley, 467 U.S. at 551)). For orders

"directing an election," 29 U.S.C. § 482(d), "challenging an

election already conducted," id. § 483, or the equivalent thereof,

the remedy is committed to the Secretary to pursue under Title IV.

In such cases, a Title I suit cannot properly be maintained, and

the case must be dismissed. See BLE Int'l Reform Comm. v. Sytsma,

802 F.2d 180, 186 (6th Cir. 1986) ("If Title IV rights are

implicated, resulting in an overlap between Title IV and Title I

rights, then Crowley requires the litigant to utilize the

enforcement procedures in [Title IV]."); see also Calhoon, 379

U.S. at 140 ("Section 402 of Title IV . . . sets up an exclusive

method for protecting Title IV rights, by permitting an individual

member to file a complaint with the Secretary of Labor . . .");

Bradley v. Am. Postal Workers Union, 962 F.2d 800, 802 (8th Cir.

1992) ("If a lawsuit alleges Title I violations, but is, in effect,

a Title IV suit, the suit has been improperly brought, and the

court has no jurisdiction over the action.").

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 Our conclusion that the remedy sought is not appropriate

under Title I is consistent with our strong policy of not

interfering in internal union matters. See, e.g., Dow v. United

Bhd. of Carpenters and Joiners, 1 F.3d 56, 58 (1st Cir. 1993) ("It

is common ground that a labor union's internal affairs comprise an

enclave best kept free from judicial intrusion."); Local No. 48,

United Bhd. of Carpenters & Joiners v. United Bhd. of Carpenters

& Joiners, 920 F.2d 1047, 1051 (1st Cir. 1990) ("There is a well-

established, soundly based policy of avoiding unnecessary judicial

intrusion into the affairs of labor unions. . . . While the LMRDA

is intended to protect union members against overreaching by their

leaders, we have long since settled that the statute does not

comprise a 'license for judicial interference in the internal

affairs of the union.'" (citations omitted) (quoting Howard v.

United Ass'n of Journeymen & Apprentices, Local No. 131, 560 F.2d

17, 21 (1st Cir. 1977))).

Our conclusion is also reinforced by the fact that, if

the composition of the Executive Board violates the LMRDA, an

adequate remedy exists under Title IV. The LMRDA vests in the

Secretary of Labor the authority to oversee the internal governance

of a union, 29 U.S.C. § 482, including authority to determine

whether the structure of weighted delegates used by Council 93 to

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elect the executive board vice presidents can fairly be said to be

"representative of [union] members." Id. § 481(d).2

B.

In the alternative, plaintiffs contend that the

structure of Council 93's Executive Board violates the AFSCME

constitution, particularly Paragraph 4 of its "Bill of Rights,"3

which provides that "[m]embers shall have the right to fair and

democratic elections, at all levels of the union. This includes

due notice of nominations and elections, equal opportunity for

competing candidates, and proper election procedures which shall

be constitutionally specified."

2 Council 93 also argues that the plaintiffs are not entitled
to relief because they failed to exhaust internal union remedies
before seeking judicial review. The district court's lack of
findings on exhaustion, at most, can be taken to mean that
exhaustion was not required under the discretionary exhaustion
provisions of Title I. However, Title IV requires exhaustion of
internal remedies before union members may seek redress from the
Secretary of Labor. 29 U.S.C. § 482(a). Because we direct that
the LMRDA claim be dismissed in its entirety with the option to
seek review from the Secretary of Labor under Title IV, we decline
to exercise jurisdiction to determine whether Title IV's mandatory
exhaustion requirements have been satisfied.
3 Plaintiffs also contended in the district court that they
are entitled to equal protection rights in officer elections under
Paragraph 7 of the AFSCME Bill of Rights, which states that "[a]ll
members shall have an equal right to vote and each vote cast shall
be of equal weight." However, they advance only their argument
under Paragraph 4 (the right to fair and democratic elections) on
appeal. Nevertheless, defendants focus on plaintiffs' allegations
under Paragraph 7, arguing that the union's interpretation of
Paragraph 7 is reasonable.

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 The AFSCME constitution requires internal exhaustion

prior to bringing a claim in court under one of its provisions.

Title IV of the LMRDA also requires exhaustion of internal union

remedies by parties alleging a "violation of the constitution and

bylaws of the labor organization pertaining to the election and

removal of officers." 29 U.S.C. § 482(a).4 Although the record

is not entirely clear, we will assume, favorably to plaintiffs,

that they first unsuccessfully pursued their claim internally, as

4 We have jurisdiction to decide some disputes between a
parent and subsidiary union body under the union's constitution
under the National Labor Relations Act, 29 U.S.C. § 185. See
United Ass'n of Journeymen & Apprentices v. Local 334, United Ass'n
of Journeymen & Apprentices, 452 U.S. 615, 619, 627 (1981)
(concluding that, because union constitutions are "labor
contracts," the court has jurisdiction to enforce their terms);
Lydon v. Local 103, Int'l Bhd. of Elec. Workers, 770 F.3d 48, 54
(1st Cir. 2014) (same); cf. Padilla-Gonzalez v. Local 1575, 635 F.
Supp. 2d 105, 109-110 (D.P.R. 2009) (concluding that a local's
constitution is a contract between a union and its members, not
between two unions). Because we ultimately conclude that
plaintiffs have failed as a matter of law on their claim, we need
not decide whether Title IV is also the exclusive remedy for this
type of constitutional claim or whether § 185 provides an
exception. See Cowels v. FBI, 936 F.3d 62, 67 (1st Cir. 2019)
("Where a question of statutory jurisdiction is complex, but the
merits of the appeal are 'easily resolved against the party
invoking [] jurisdiction,' we can assume jurisdiction for purposes
of deciding the appeal." (quoting Méndez-Núñez v. Fin. Oversight
& Mgmt. Bd. (In re Fin. Oversight & Mgmt. Bd.), 916 F.3d 98, 114
n.13 (1st Cir. 2019)) (alteration in original)). Compare 29 U.S.C.
§ 481(e) (characterizing the right for elections to "be conducted
in accordance with the constitution and bylaws of such
organization" as a right under Title IV, to be enforced by the
Secretary of Labor), with id. § 483 ("Existing rights and remedies
to enforce the constitution and bylaws of a labor organization
with respect to elections prior to the conduct thereof shall not
be affected by the provisions of this subchapter.").

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required under the union constitution, before seeking redress in

the courts.

The merits of plaintiffs' claim under the AFSCME

constitution turns on the question of the proper interpretation of

Paragraphs 4 and 7 of the constitution's Bill of Rights. When

reviewing a union's interpretation of its own constitution, we

defer to that interpretation unless it is plainly unreasonable.

See Local No. 48, 920 F.2d at 1052 ("[T]he critical question,

uniformly, is whether the stated reason for the action was facially

sufficient under the instrument of governance, or put another way,

whether there was arguable authority for the officer's act from

the officer's viewpoint at the time." (internal quotation marks

omitted)).

We begin with the constitution's text, see United States

v. Charter Int'l Oil Co., 83 F.3d 510, 517 (1st Cir. 1996), noting

at the outset the absence of any express guarantee of equal or

proportional representation on its executive board or on any of

its or its subsidiaries' governing bodies, including the

subsidiaries' executive boards. This silence contrasts with the

text of paragraph 7 of the AFSCME Bill of Rights, which states

that "[a]ll members shall have an equal right to vote and each

vote cast shall be of equal weight" specifically on issues

pertaining to the collective bargaining of contracts, memoranda of

understanding, agreements affecting members' wages, hours, or any

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other terms of employment. The union thus knew precisely how to

require equally weighted votes on an issue within the constitution

if it wished to do so; instead, it chose to use only the term "fair

and democratic" when referring to how elections of its officers

must be conducted.

So, we ask if this term by itself renders supererogatory

the need to include explicitly the right to proportional

representation or an equal vote. See Ramos v. Louisiana, 140 S.

Ct. 1390, 1400 (2020) (suggesting that, with respect to certain

rights, the absence of an explicit grant of that right in the text

of the Constitution does not imply the right does not exist, but

rather, supports the inference that the right "was so plainly

included" that stating it explicitly would be "surplusage").

We think that it does not. We can assume the term

"democratic," by itself, implies a relatively equal right to vote

on such matters as one is entitled to vote on, but it is too much

of a stretch to say that it must also imply proportional

representation on the executive board. The United States is

generally considered to be a democracy in normal parlance,

notwithstanding the effectively disproportionate representation in

the Senate and the Electoral College. See Lyman v. Baker, 954

F.3d 351, 371 (1st Cir. 2020) ("The United States' system of

representative democracy [includes] . . . the Electoral College

and . . . Senate."). Similarly, the term "fair" may suggest some

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restraint on the procedures used for voting. Paragraph 4 thus

requires, as examples, "due notice of nominations and elections,

equal opportunity for competing candidates, and proper election

procedures which shall be constitutionally specified." While this

list is non-exhaustive, it would have been rather simple for the

union to include within it the requirement of equal or proportional

representation on all governing bodies, as it did in Paragraph 7

for labor concerns and within this paragraph for competing

candidates. Yet, it did not.

The defendants' position that the voting system used to

select officers of Council 93's executive board is fair finds

further support in the fact that those procedures themselves are

approved and subject to change by the convention, in which voting

is weighted just as plaintiffs would have it be -- proportionate

weight is assigned to the votes of convention delegates based on

the number of members represented.

Moreover, the actual behavior being challenged is not

precisely an undemocratic or unfair election as a result of an

unequally weighted vote. In choosing delegates to the Council 93

convention, union member votes are weighted equally, and these

conventions, like a parliament, carry out many of the important

legislative powers of the union. Similarly, the five senior

officers on Council 93's executive board are chosen according to

an equally weighted vote of convention delegates, in much the way

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that a prime minister might be chosen by a parliament composed of

equally weighted votes. It is only the selection of vice

presidents to represent the legislative districts that is being

challenged.

We have a difficult time saying that the members' right

to "fair and democratic elections" necessarily guarantees equal

representation on this subordinate body of executive officials.

That a cabinet may be made up of appointed officials who do not

proportionally reflect the full constituency does not mean that

the underlying election was not fair and democratic. The

constitutional clause at issue here guarantees only that, when

members vote, the process is fair and democratic. The plaintiffs

have not contended that their actual elections are otherwise, only

that every officer must proportionally represent the constituency.

As to that contention, they point to nothing in their constitution

that imposes that requirement on Council 93 or any of AFSCME's

subordinate bodies.

AFSCME itself also allocates seats and voting for

positions on its own executive board in a manner that belies equal

representation of every union member, as plaintiffs concede.

Although plaintiffs suggest that the ASFCME executive board is

somehow more proportional because it is a "hybrid house-senate-

like" system, this is nothing more than a particular type of

disproportionality. And plaintiffs do not offer any basis in the

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AFSCME constitution to suggest how much proportionality is enough

to be "fair and democratic." One would expect to find some good

reason why AFSCME would view its constitution as outlawing a

practice by the Council that it allows itself. Plaintiffs offer

no such reason, and we are not willing to create one sua sponte,

especially where we are to defer to AFSCME's reasonable

interpretations of its constitution. See, e.g., Vestal v. Haffa,

451 F.2d 706, 709 (6th Cir. 1971) ("Courts are reluctant to

substitute their judgment for that of union officials in the

interpretation of a union constitution, and will interfere only

where the official's interpretation is not fair or reasonable.");

cf. Coleman v. Miller, 307 U.S. 433, 454-55 (1939) (holding that

a "lack of satisfactory criteria for a judicial determination,"

inter alia, favors deference to other bodies in deciding what

counts as a "Republican Form of Government").

Of course, the district court reasoned that the voting

structure need not be precisely proportional but should at least

have "some neutral principle that justifies weighted voting," and

it found no such rationale besides a "hodge-podge of historic

deals." But negotiation and deal-work are the very heart of what

unions do. In fact, plaintiffs imply the need to allow unions to

make such compromises by suggesting that AFSCME's executive board

representation is not problematic because it is like the U.S. House

and Senate, which itself is nothing more than an historic deal.

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See Ronald J. Krotoszynski, Jr., Reconsidering the Nondelegation

Doctrine: Universal Service, the Power to Tax, and the Ratification

Doctrine, 80 Ind. L.J. 239, 252 (2005) (discussing how the

apportionment of seats in the U.S. House and Senate was part of a

complicated "deal" involving the balance of power between

competing factions). While we recognize that Council 93 is

constrained in the deals it can negotiate by the AFSCME

constitution, we are hesitant to retroactively read the terms "fair

and democratic" to invalidate the bargained-for exchanges that the

union members agreed to over the years, especially when AFSCME has

made no indication that it believes the term carries such weight

and has opted not to restrict its councils in this way. If AFSCME

had wanted to tie the hands of its councils in this matter, it

certainly could have stepped in and chosen not to approve the

provisions in the Council 93 constitution incorporating these

deals. Its acquiescence is entitled to some consideration.

For all of these reasons, we reject the plaintiffs' claim

that the AFSCME constitution can only be reasonably read as

outlawing the practice adopted by the Council 93 convention for

filling positions on the executive board.

IV. CONCLUSION

For the foregoing reasons, we reverse the judgment of

the district court on all but the counterclaim, which we affirm on

other grounds. We leave it to plaintiffs, should they so desire,

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to seek such if any relief from the Secretary of Labor as the

Secretary may deem appropriate under Title IV of the LMDRA. The

parties shall bear their own costs of this appeal.

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