Quigley v. Giblin

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued May 4, 2009 Decided June 23, 2009

No. 08-7056

MICHAEL J. QUIGLEY ET AL.,
APPELLANTS

v.

VINCENT GIBLIN AND
INTERNATIONAL UNION OF OPERATING ENGINEERS,
APPELLEES

Appeal from the United States District Court
for the District of Columbia
(No. 1:07-cv-00600)

Paul Alan Levy argued the cause for the appellants.
Leon Dayan argued the cause for the appellees. Robert M.
Weinberg and Matthew H. Clash-Drexler were on brief.
Before: HENDERSON, BROWN and KAVANAUGH, Circuit
Judges.
Opinion for the Court filed by Circuit Judge HENDERSON.
KAREN LECRAFT HENDERSON, Circuit Judge: The
International Union of Operating Engineers (Union) adopted a
Resolution requiring all candidates for local union offices and
their supporters to include a password protection function on
 2

their campaign websites limiting access to Union members.
Michael Quigley, together with four other Union members
(collectively Quigley), brought an action in district court seeking
a permanent injunction prohibiting the Union from enforcing the
Resolution under section 101(a)(2) of the Labor-Management
Reporting and Disclosure Act (LMRDA), 29 U.S.C. § 411(a)(2).
On cross-motions for summary judgment, the district court
granted summary judgment in favor of the Union. Qui[g]ley v.
Giblin, 582 F. Supp. 2d 1, 14 (D.D.C. 2008). For the reasons set
forth below, we affirm.
I.
The Union is an international labor organization that
represents primarily operating engineers who work as heavy
equipment operators, mechanics and surveyors in the
construction industry and stationary engineers who work in
operations and maintenance. It has approximately 396,000
members and 138 chartered and autonomous local unions in
Canada and the United States. The local unions range in size
from 14 members to over 40,000 members. Elections for local
union office are held in August and nominations are made no
earlier than the May before the election.
In January 2007, the General Executive Board1 adopted the
Campaign Website Resolution, which provides in part:
NOW THEREFORE BE IT RESOLVED THAT the
General Executive Board, in order to assure the fullest
expression of free speech by candidates in Local Union
elections while protecting the Local Unions from
adverse actions by employers, directs that, starting with
Local Union elections to be held in 2007, Local Unions
and their election committees shall require all

1
The General Executive Board governs the Union except when
the General Convention is in session (at five-year intervals).
 3

candidates and their supporters who have set up or
wish to set up campaign websites to include a
password protection function; and
BE IT FURTHER RESOLVED THAT the
International Union shall work with the Local Unions
and their election committees to establish appropriate
password protection mechanisms using members’
register numbers or another appropriate mechanism to
identify membership status.
Campaign Website Resolution at 1 (adopted Jan. 2007)
(Resolution) (Joint Appendix (JA) 295). In the prefatory
portion, the Resolution explained that campaign websites “allow
non-members, including employers, access to frequently
sensitive information about the Local Unions” and that “there
have been instances where employers have misused information
obtained from candidates’ websites to the detriment of . . . Local
Unions in organizing campaigns and contract negotiations.” Id.
In a letter dated February 12, 2007 and sent to all local union
business managers, the Union General President stated that the
Resolution “will not in any way limit the content of what is said
on such websites” but “will merely attempt to assure that
sensitive information concerning Local Union affairs is shared
among members, and is not available to employers and others
with interests contrary to those of the Local Unions.” Letter
from Vincent J. Giblin, Union General President, to All Local
Union Business Managers at 2 (filed May 12, 2007) (JA 297).
The Resolution applies to incumbents running for reelection as
well as challengers. Oral Argument at 26:04, Quigley v. Giblin,
No. 08-7056 (argued May 4, 2009) (Union counsel: “[The
Resolution] absolutely applies to incumbents.”). Although
official local union websites were not expressly covered by the
Resolution, the Giblin letter directed local unions to review their
websites to ensure that sensitive information was password
protected. Letter from Vincent J. Giblin at 2 (JA 297). The
 4

letter announced that the Resolution would become effective on
April 15, 2007. Id. On March 29, 2007, the appellants filed
their complaint in the district court seeking declaratory and
injunctive relief. Compl. at 11, Qui[g]ley v. Giblin, 582 F. Supp.
2d 1 (D.D.C. Mar. 29, 2007) (No. 07-cv-600) (Compl.). On
April 2, 2007, the General Executive Board changed the
Resolution’s effective date to July 1, 2007.
Shortly thereafter, the General Executive Board adopted
guidelines to implement the Resolution. Letter from Vincent J.
Giblin, Union General President, to All Local Union Business
Managers, Attachment (filed May 12, 2007) (Guidelines) (JA
301). The Guidelines stated that for the upcoming elections, the
Union planned to retain an independent information technology
consulting firm to assist Union members in implementing the
Resolution. Id. The Guidelines authorized the consulting firm
to waive compliance with the Resolution if it determined, “based
on its technical expertise and in its sole discretion,” that
compliance “would require a significant expenditure of money
or significant delay.” Id. They also stated that a Union member
could request an opinion from the Union General President as to
whether the Resolution applied to a particular website. Giblin
opined at his deposition that a campaign website home page did
not need to be password protected if it was “announcing the
candidacy, a picture, a list of potential candidates” or if it
contained a “short biography” of the candidate and “his running
mates” but that other web pages on the site would require
protection. Tr. of Dep. of Vincent J. Giblin at 45, 53 (filed May
28, 2007) (Giblin Dep. Tr.) (JA 323, 325a).
According to the Union’s expert witness, the Union
intended to use a remote authentication password protection
system. Decl. of Joanna M. Pineda at 2 ¶ 9 (filed May 12, 2007)
(Pineda Decl.) (JA 190). Under this system, the person setting
up a campaign website includes “a few lines of programming,”
referred to as “script,” in each web page to be password
 5

protected. Id. at 3 ¶ 11 (JA 191). If a Union member attempts
to view a password protected web page, he is directed to a third-
party website and prompted to enter his name and Union
membership number as they appear on his Union card. The
authentication page contains a disclaimer that the third party
“will not log any identifying information (register number or
name) about [Union] members seeking access to any particular
campaign Web site, or the IP address (and any other information
that might indicate the geographic location) of any member
seeking to access any particular web site.” Ex. E to Affidavit of
Paul Alan Levy at 1 (filed May 28, 2007) (JA 446). The third
party will verify the Union member’s information against a list
of Union members’ names and membership numbers supplied
by the Union. If the information is correct, the Union member
will be “automatically redirected back to the original website.”
Pineda Decl. at 2 ¶ 9 (JA 190).
Quigley’s complaint sought a permanent injunction
ordering the Union to revoke the Resolution and to refrain from
enforcing it and a declaratory judgment voiding the Resolution.
Compl. at 11. In May 2007, both parties filed motions for
summary judgment. The district court granted summary
judgment in favor of the Union. Qui[g]ley, 582 F. Supp. 2d at
14. Quigley timely appealed pursuant to 28 U.S.C. § 1291.
II.
We review a district court’s summary judgment de novo.
Defenders of Wildlife v. Gutierrez, 532 F.3d 913, 918 (D.C. Cir.
2008). Summary judgment is appropriate “if the pleadings, the
discovery and disclosure materials on file, and any affidavits
show that there is no genuine issue as to any material fact and
that the movant is entitled to judgment as a matter of law.” Fed.
R. Civ. P. 56(c). We view the evidence in the light most
favorable to the nonmoving party. U.S. Postal Serv. v. Am.
Postal Workers Union, 553 F.3d 686, 692 (D.C. Cir. 2009).
 6

A.
Quigley argues that the Resolution violates section
101(a)(2) of the LMRDA, which provides:
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:
Provided, That nothing herein shall be construed to
impair the right of a labor organization to adopt and
enforce reasonable rules as to the responsibility of
every member toward the organization as an institution
and to his refraining from conduct that would interfere
with its performance of its legal or contractual
obligations.
29 U.S.C. § 411(a)(2) (emphasis in original). In United
Steelworkers of America v. Sadlowski, 457 U.S. 102 (1982), the
United States Supreme Court set forth a two-step inquiry “[t]o
determine whether a union rule is valid under [section
101(a)(2)].” 457 U.S. at 111. First, we must “consider whether
the rule interferes with an interest protected by the first part of
§ 101(a)(2).” Id. “If it does, we then determine whether the rule
is ‘reasonable’ and thus sheltered by the proviso to § 101(a)(2).”
Id. The “critical question” under the second step is “whether a
rule that partially interferes with a protected interest is
nevertheless reasonably related to the protection of the
organization as an institution.” Id. at 111-12. “Union rules . . .
are valid under § 101(a)(2) so long as they are reasonable; they
need not pass the stringent tests applied in the First Amendment
context.” Id. at 111.
 7

It is undisputed that section 101(a)(2) protects a union
member’s right to communicate with other members.
Appellants’ Br. at 44-45; Appellee’s Br. at 34-35; see Helton v.
NLRB, 656 F.2d 883, 895 (D.C. Cir. 1981) (section 101(a)(2)
“‘designed to protect the rights of union members to discuss
freely and criticize the management of their unions and the
conduct of their officers.’” (quoting Salzhandler v. Caputo, 316
F.2d 445, 448-49 (2d Cir. 1963))). Quigley asserts that the
Resolution interferes with a candidate’s ability to communicate
with Union members in several ways. First, according to both
parties’ experts, internet search engines cannot access password
protected pages, which, Quigley asserts, will limit a Union
member’s ability to find a campaign website using search
engines. The Union’s expert noted, however, that internet
search engines will be able to search a campaign website’s
unprotected home page, which, according to Giblin, may contain
basic information about the candidate and election, thereby
allowing members to locate the campaign website. Moreover,
Quigley asserts that Union members will be unable to receive
automatic updates regarding changes to campaign websites
using Real Simple Syndication (RSS) feeds. According to the
Union’s expert, an internet user cannot, without “a high level of
technological ability,” use an RSS feed to receive automatic
notifications of updates to a password protected page.
Supplemental Decl. of Joanna M. Pineda at 2 ¶ 3 (filed June 9,
2007) (Pineda Supp. Decl.) (JA 194b). The Union asserts
therefore that a Union member’s inability to use RSS is
irrelevant because no evidence shows that Union members will
use RSS feeds to monitor campaign websites. Quigley through
his expert also claims that certain website hosts do not support
scripting, including blogging platforms, YouTube and social
networking sites such as Facebook, thus precluding candidates
and their supporters from using those hosts to set up their
campaign websites or post campaign material. The Union
responds that its members have alternative web hosts that
 8

support scripting and Quigley acknowledges that “a number of”
website hosts allow for scripting. Appellee’s Br. at 41-43;
Appellants’ Br. at 19. In addition, Quigley, again through his
expert, maintains that password protection will deter some
Union members from viewing the campaign websites either
because they will not have their log-in information readily
available or because they fear that Union incumbents will find
out that they viewed an insurgent’s campaign website. The
Union’s expert opined that a password requirement would “not
likely” deter Union members from accessing campaign websites,
Pineda Decl. at 5 ¶ 14 (JA 193), but Quigley’s expert disagreed.
Decl. of Mark Brenner at 8-9 ¶¶ 23-25 (filed May 28, 2007) (JA
456-57). The Union also notes that the remote authentication
page contains a disclaimer that it “will not log any identifying
information” about Union members. Ex. E to Affidavit of Paul
Alan Levy at 1 (filed May 28, 2007) (JA 446). Viewing the
evidence in a light most favorable to Quigley, we conclude that
the Resolution may interfere with a Union member’s “right . . .
to express any views, arguments, or opinions,” 29 U.S.C.
§ 411(a)(2), because it limits the means by which a local union
candidate may disseminate his message and may deter some
members from viewing his campaign website.2 We note,
however, that although the Resolution “does affect rights
protected by the statute, as a practical matter the impact may not
be substantial” for the reasons stated by the Union. Sadlowski,
457 U.S. at 113.

2
Quigley also asserts that section 101(a)(2) encompasses a right
to communicate with nonmembers as well as members. Appellants’
Br. at 37-44. Assuming arguendo that it does encompass such a right,
the question remains whether the Resolution is reasonable. See
Sadlowski, 457 U.S. at 111 (“[W]e first consider whether the rule
interferes with an interest protected by the first part of § 101(a)(2). If
it does, we then determine whether the rule is ‘reasonable’ and thus
sheltered by the proviso to § 101(a)(2).”) (emphasis added).
 9

We now turn to whether the Resolution is “reasonably
related to the protection of the [Union] as an institution.” Id. at
111-12. In Sadlowski, the Supreme Court held that a union
“outsider rule” prohibiting union members from accepting
campaign contributions from nonmembers was permissible
under the proviso to section 101(a)(2). Id. at 121. Relying on
legislative history, the Court concluded that the “outsider rule”
“serves a legitimate purpose that is clearly protected under the
statute,” specifically “minimiz[ing] outsider influence” and
enabling the union “to maintain control over its own affairs.”
Id. at 115-117. It then rejected the argument that the “outsider
rule” was nonetheless unreasonable because the union could
have adopted less restrictive alternatives. Id. at 118-119. The
Court concluded that the alternatives would not have addressed
the problem of outsider influence as effectively and that the
union had a “reasonable basis for its decision to impose a broad
ban.” Id. at 118.
The Union argues that the Resolution is designed to prevent
employers from obtaining sensitive Union information from
campaign websites and using it to undermine local union
organizing campaigns or to gain an advantage in contract
negotiations. Section 101(a)(2) permits a union “to adopt and
enforce reasonable rules as to . . . [every member’s] refraining
from conduct that would interfere with its performance of its
legal or contractual obligations,” 29 U.S.C. § 411(a)(2), and the
union has a legal obligation to bargain collectively with an
employer, 29 U.S.C. § 158(b)(3), (d). The Secretary of the
United States Department of Labor recognized a union’s interest
in keeping certain information confidential when it excepted
from itemized disclosure on annual union financial reports
“[i]nformation that might provide insight into the reporting
union’s organizing strategy” or “that might provide a tactical
advantage to parties with whom the reporting union . . . is
engaged or will be engaged in contract negotiations.” Labor
Organization Annual Financial Reports, 68 Fed. Reg. 58,374,
 10

58,387 (Oct. 9, 2003). According to the Resolution, campaign
websites “allow non-members, including employers, access to
frequently sensitive information about the Local Unions” and
“there have been instances where employers have misused
information obtained from candidates’ websites to the detriment
of . . . Local Unions in organizing campaigns and contract
negotiations.” Resolution at 1 (JA 295). Because the
Resolution enables the Union to organize and bargain more
effectively by keeping sensitive Union information from
employers, we conclude that it “serves a legitimate and
protected purpose” under section 101(a)(2)’s proviso.
Sadlowski, 457 U.S. at 117. Moreover, in considering the
reasonableness of the Resolution, we note that it is not
viewpoint-based and that it leaves open alternative methods of
communication with the public. The Resolution simply
establishes a members-only forum for those who are eligible to
vote in union elections.
Quigley argues, however, that the Resolution is
unreasonable because the Union has not offered evidence of any
harm resulting from sensitive information being posted on
campaign websites. Section 101(a)(2) does not impose an
evidentiary burden but requires only that a union rule be
“reasonable.” Nor did the Supreme Court impose an evidentiary
burden in Sadlowski. In Sadlowski, the losing candidate for
union president “received much of his financial support from
sources outside the union.” 457 U.S. at 104. Following the
election, the union adopted the “outsider rule” “to ensure that
nonmembers do not unduly influence union affairs” and because
it “feared that officers who received campaign contributions
from nonmembers might be beholden to those individuals and
might allow their decisions to be influenced by considerations
other than the best interests of the union.” Id. at 115. While the
union produced evidence of nonmember contributions to a union
candidate, it had no evidence that union officers receiving such
contributions were “beholden to” outside contributors once
 11

elected. Id. Nevertheless, the Court concluded that the
“outsider rule” was reasonable. Id. at 118.
In his declaration, Giblin averred that during a Union
hearing in 2000 on whether a local union should be placed under
supervision, he “learned that employers had been monitoring
websites of [local union] candidates and were using the
information found on the websites to defeat organizing
campaigns and to improve their position at the bargaining table.”
Giblin Decl. at 5 ¶ 19 (JA 280). He also stated that a candidate
in another local union’s 2005 election had “posted the minutes
from a local union board meeting and the meeting of the trustees
of the union’s pension fund on his campaign website.” Id. at 5
¶ 20 (JA 280). Quigley argues that Giblin’s statements
regarding the first incident are “[a]t most . . . hearsay” and are
an insufficient basis for the Resolution. Appellants’ Br. at 51.
Quigley argues that the second incident involving the posting of
local union board minutes on a campaign website does not
indicate that those minutes posed any harm or contained any
sensitive Union information. Id. at 55 n.7.3 While the cited
evidence may be contested, the Union’s reliance on that
evidence as well as its concern that harm may occur are
reasonable.
Quigley also argues that the Resolution does not serve its
intended purpose and thus is not “rationally related to that
purpose.” Sadlowski, 457 U.S. at 118. First, he notes that the
Resolution does not require a Union member to password
protect websites unrelated to local union campaigns but that
nonetheless discuss union issues and does not prohibit a
candidate and his supporters from publicly distributing

3
Local Union meetings are open only to Union members in good
standing. Constitution Governing the International Union of
Operating Engineers at 84 (filed May 12, 2007) (JA 292).
 12

campaign literature.4 Second, he asserts that some Union
members are also employers. Third, he asserts that employers
can easily obtain a Union member’s membership number and
thus view password protected campaign websites using the
member’s information. Quigley’s assertions merely
demonstrate that the Resolution does not cover all of the routes
by which employers can obtain sensitive union information and
that password protection is not a perfect method for preventing
employers from viewing campaign websites. To be reasonable,
however, a union rule need not perfectly achieve its intended
purpose. A union need only have a “reasonable basis for its
decision,” which, we conclude, the Union does. Sadlowski, 457
U.S. at 118. Accordingly, we conclude that the Resolution is
protected by the proviso to section 101(a)(2).
B.
Quigley also argues that the Resolution is “vague or
overbroad,” relying on extra-circuit precedent. Appellants’ Br.
at 64 (citing Mallick v. Int’l Bhd. of Elec. Workers, 644 F.2d 228
(3d Cir. 1981); Semancik v. United Mine Workers of Am. Dist.
No. 5, 466 F.2d 144 (3d Cir. 1972)). In Semancik, the Third
Circuit enjoined the union from sanctioning its members under
a union constitutional provision that the court determined was “a
threat and obstacle to free speech because it is so vague and ill-

4
Nor does the Resolution prohibit or limit in any way campaign
mail or e-mail to Union members. We also note that the Union is
required by law “to comply with all reasonable requests of any
candidate to distribute by mail or otherwise at the candidate’s expense
campaign literature in aid of such person’s candidacy to all members
in good standing of such labor organization” and to allow “[e]very
bona fide candidate . . . , once within 30 days prior to an election of a
labor organization in which he is a candidate, to inspect a list
containing the names and last known addresses of all members of the
labor organization.” 29 U.S.C. § 481(c).
 13

defined that whenever a union member might exercise the right
guaranteed to him under [section 101(a)(2)], he is in peril of
violating the provision.” 466 F.2d at 153-54.5 In Mallick, the
Third Circuit concluded that “[t]he right to speak one’s views
freely is so fundamental,” even in the context of section
101(a)(2), “that the spectre of punishment, or the uncertainty
created by a vaguely worded prohibition of speech,” supported
in part an injury sufficient to confer standing. 644 F.2d at 235;
see also Knight v. Int’l Longshoremen’s Ass’n, 457 F.3d 331,
338 (3d Cir. 2006) (remanding to district court to consider
“alleg[ation] that an overly broad [union] constitutional
provision violates [the] LMRDA right to free speech”).6 While
the Third Circuit has borrowed its vagueness doctrine from First
Amendment law, we are not convinced that a union member can
bring a vagueness challenge to a union rule. In Sadlowski, the
Supreme Court rejected the notion that “the scope of [section]
101(a)(2) [is] identical to the scope of the First Amendment”
and noted that “First Amendment principles may be helpful [in
applying section 101(a)(2)], although they are not controlling.”
457 U.S. at 111. The Union, however, does not argue that

5
The union constitutional provision at issue in Semancik
provided: “[A]ny member or members resorting to dishonest or
questionable practices to secure the election or defeat of any candidate
for district office shall be tried by the district executive board and
fined, suspended or expelled as the magnitude of the transgression
may warrant.” 466 F.2d at 147 (alteration in original and emphasis
added). The court found “dishonest or questionable” vague. Id. at
154.
6
The Second Circuit struck down a union constitutional provision
authorizing expulsion of a member for “advocating or encouraging
communism” because “[i]t is so broad that it cannot possibly be found
a reasonable means for preventing Communist Party infiltration of the
appellant unions.” Turner v. Air Transp. Lodge 1894, 590 F.2d 409,
410, 412 (2d Cir. 1978).
 14

Quigley’s vagueness challenge is improper or that a different
standard applies from that used in First Amendment law.
Assuming arguendo that the First Amendment vagueness
doctrine applies in the section 101(a)(2) context, Quigley’s
vagueness challenge fails. The Resolution applies to “all
candidates and their supporters who have set up or wish to set up
campaign websites.” Resolution at 1 (JA 295). Quigley asserts
that “supporters” and “campaign websites” are vague terms. For
example, if a union member maintained an ongoing website
discussing union issues and during an election posted a message
stating that he supported a specific candidate, would he be
required to password protect the website under the Resolution?
While “supporters” and “campaign websites” may be vague in
a few circumstances, they are clear in the vast majority of
circumstances. Cf. Hill v. Colorado, 530 U.S. 703, 733 (2000)
(“[S]peculation about possible vagueness in hypothetical
situations not before the Court will not support a facial attack on
a statute when it is surely valid ‘in the vast majority of its
intended applications.’” (quoting United States v. Raines, 362
U.S. 17, 23 (1960))). Furthermore, in a close case, a union
member may seek clarification from the Union General
President. See Trans Union Corp. v. FTC, 245 F.3d 809, 817
(D.C. Cir. 2001) (rejecting vagueness challenge in part because
administrative advisory opinion procedure existed to resolve any
ambiguity).
For the foregoing reasons, we affirm the district court’s
grant of summary judgment to the Union.
So ordered.