Acosta v. Local Union 26, Unite Here , 895 F.3d 141 ( 2018 )

United States Court of Appeals
For the First Circuit
No. 17-1666
R. ALEXANDER ACOSTA, Secretary of Labor,
United States Department of Labor,
Plaintiff, Appellant,
v.
LOCAL UNION 26, UNITE HERE,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. George A. O’Toole, Jr., U.S. District Judge]
Before
Thompson, Circuit Judge,
Souter, Associate Justice,
and Selya, Circuit Judge.
Casen B. Ross, Attorney, Appellate Staff, Civil Division,
with whom Chad A. Readler, Acting Assistant Attorney General,
Andrew E. Lelling, United States Attorney, William D. Weinreb,
Acting United States Attorney, Mark B. Stern, Attorney,
Appellate Staff, Civil Division, Nicholas C. Geale, Acting
Solicitor of Labor, Beverly Dankowitz, Associate Solicitor,
Civil Rights and Labor-Management Division, Clinton Wolcott,
Counsel for Labor-Management Programs, and Anna Laura Bennett,
Attorney, Department of Labor, were on brief, for appellant.

Hon. David H. Souter, Associate Justice (Ret.) of the
Supreme Court of the United States, sitting by designation.
Richard G. McCracken, with whom Paul L. More and McCracken,
Stemerman & Holsberry LLP, were on brief, for appellee.
July 11, 2018
SOUTER, Associate Justice. In this suit brought
against defendant Local Union 26, UNITE HERE, the Secretary of
Labor claims that the union violated § 104 of the Labor-
Management Reporting and Disclosure Act of 1959 (the "LMRDA")
when it refused to allow one of its members to take notes while
inspecting its collective bargaining agreements ("CBAs") with
other employers. The district court held that the member's
statutory right to "inspect" the agreements did not encompass a
right to take notes while doing so. We affirm.
The material facts may be stated briefly. Dimie
Poweigha is a member of Local 26. The union has negotiated more
than 40 CBAs, including one with Poweigha's employer. Poweigha
was dissatisfied with the administration of Local 26, and asked
the union to permit her to review 37 CBAs Local 26 had
negotiated with employers other than her own. Eventually, once
the Secretary of Labor got involved, the union offered Poweigha
opportunities for this purpose, but said that it would not allow
her to take notes on the CBAs during her inspections. When the
Secretary learned of the union's position, he filed this suit,
contending that the limitation on note-taking violated § 104 of
the LMRDA, 29 U.S.C. § 414, in particular, the union’s
obligation under § 104 to make such CBAs "available for
- 3 -
inspection by any member or by any employee whose rights are
affected by such agreement[s]."1
The parties filed dueling motions for judgment on the
pleadings, and the district court granted judgment for Local 26
on the issue before us. We review a district court's judgment
on the pleadings de novo. See Rezende v. Ocwen Loan Servicing,
LLC, 869 F.3d 40, 42 (1st. Cir. 2017).
Section 104 reads, in relevant part, as follows:
It shall be the duty of the secretary or corresponding
principal officer of each labor organization, in the case
of a local labor organization, to forward a copy of each
collective bargaining agreement made by such labor
organization with any employer to any employee who requests
such a copy and whose rights as such employee are directly
affected by such agreement, and in the case of a labor
organization other than a local labor organization, to
forward a copy of any such agreement to each constituent
unit which has members directly affected by such agreement;
and such officer shall maintain at the principal office of
the labor organization of which he is an officer copies of
any such agreement made or received by such labor
organization, which copies shall be available for
inspection by any member or by any employee whose rights
are affected by such agreement.
29 U.S.C. § 414 (emphasis added).2
1 Though the Secretary has previously taken this position in
litigation, the Labor Department has not promulgated a
regulation addressing the scope of § 104’s inspection right.
2 Before the district court, Local 26 contended that a union
member possesses no right even to inspect a CBA under § 104
unless that member's rights are "affected by such agreement."
29 U.S.C. § 414. The district court rejected that argument,
holding that the statutory phrase "whose rights are affected by
such agreement" modifies "any employee," not "any member." The
rule of the last antecedent, "according to which a limiting
clause or phrase . . . should ordinarily be read as modifying
- 4 -
In accord with standard definition and common
understanding, an "inspection" is the "[a]ct or process of
inspecting," Webster's New International Dictionary 1286 (2d ed.
1957), and to "inspect" does not mean to take notes, but rather
"[t]o look upon; to view closely and critically, esp. so as to
ascertain quality or state, to detect errors, etc.; to
scrutinize," id. Taking the plain meaning of the word as its
statutory meaning is buttressed by two features of the LMRDA
that convince us that Congress did not intend the relevant
clause to give union members a right to take notes while
inspecting other employers' CBAs.3
First, the LMRDA uses the term "inspect" elsewhere,
and the drafting and legislative history of that neighboring
provision makes clear that Congress did not intend the term to
include a right to take notes. Section 401(c) of the LMRDA,
enacted at the same time as § 104, provides that:
Every bona fide candidate shall have the right, once within
30 days prior to an election of a labor organization in
only the noun or phrase that it immediately follows," supports
the district court's construction. Barnhart v. Thomas, 540 U.S.
20, 26 (2003). But because the union does not reprise this
particular argument on appeal, we need not resolve the issue
conclusively. Instead, we may assume that Poweigha had a right
to inspect the CBAs in issue.
3
The Secretary requests "some measure of deference" if we
find the scope of the inspection right to be unclear. Because
we do not, we have no occasion to grant him any.
- 5 -
which he is a candidate, to inspect a list containing the
names and last known addresses of all members of the labor
organization who are subject to a collective bargaining
agreement requiring membership therein as a condition of
employment, which list shall be maintained and kept at the
principal office of such labor organization by a designated
official thereof.
29 U.S.C. § 481(c) (emphasis added).
Critically, earlier drafts of this provision provided
candidates not merely with a right to "inspect" membership
lists, but with a right to "inspect and copy" such lists. See
H.R. 8400, 86th Cong. § 401(b) (1959). But Congress dropped the
words "and copy" from the final version of the LMRDA.
"Few principles of statutory construction are more
compelling than the proposition that Congress does not
intend sub silentio to enact statutory language that it has
earlier discarded in favor of other language." I.N.S. v.
Cardoza-Fonseca, 480 U.S. 421, 442–43 (1987) (internal quotation
marks omitted). And the legislative history confirms the
application of this common-sense principle here. See H.R. Rep.
No. 86-1147, at 34 (1959) (stating that the words "and copy"
were eliminated to "deny candidates the right to copy membership
lists"); see also Garcia v. United States, 469 U.S. 70, 76
(1984) ("In surveying legislative history we have repeatedly
stated that the authoritative source for finding the
Legislature's intent lies in the Committee Reports on the bill,
which represent the considered and collective understanding of
- 6 -
those Congressmen involved in drafting and studying proposed
legislation." (internal quotation marks and alteration
omitted)).4 In other words, under § 401(c) of the LMRDA,
Congress plainly did not intend the right to "inspect" to
include the right to copy. Not surprisingly, the Secretary has
issued a regulation reaching this same conclusion. See 29
C.F.R. § 452.71 (the right to inspect a membership list under
§ 401(c) "does not include the right to copy the [membership]
list"). And no distinction can be drawn from the difference
between "copying" then and "note-taking" now, because in 1959,
the year of enactment, a right to "copy" would, as a practical
matter, have been exercised by handwritten note-taking. "Office
copying as we know it didn’t arrive until 1960." David Owen,
Copies in Seconds 10 (2004).
If the right to "inspect" in § 401(c) of the LMRDA
does not provide a right to take notes, it would be at odds with
another well-established canon of statutory interpretation to
read "inspect" in § 104 of the same Act to confer that same
right. That canon teaches that "identical words and phrases
within the same statute should normally be given the same
meaning." Powerex Corp. v. Reliant Energy Servs., Inc., 551
4
The Secretary concedes the point. See Reply Brief for
Appellant 2 ("The legislative history of section 401(c)
indicates that it does not include a right to copy membership
lists . . . .").
- 7 -
U.S. 224, 232 (2007). After all, it would assume a certain
whimsy on the part of Congress to conclude that it used the term
"inspect" in two different senses within the same statute.5
Though the rule, like most, admits of exceptions, there is no
apparent reason to question its applicability here.6
The second feature of the statute that persuades us of
our reading is that when Congress wished to provide individuals
with a right to a "copy" of a CBA, it said so expressly. In
particular, § 104 entitles "any employee . . . whose rights as
such employee are directly affected by [a CBA]" to a copy of
that CBA. 29 U.S.C. § 414. If Congress had intended to entitle
union members to copies of every CBA a union negotiates, it
needed only to say so. Cf. Knight v. C.I.R., 552 U.S. 181, 188
(2008) ("If Congress had intended the Court of Appeals' reading,
it easily could have replaced 'would' in the statute with
'could,' and presumably would have. The fact that it did not
adopt this readily available and apparent alternative strongly
5The Secretary observes that §§ 104 and 401(c) were enacted
in separate Titles of the LMRDA. But the canon is not limited
to terms enacted in the same statutory title. See Antonin
Scalia & Bryan A. Garner, Reading Law 172 ("The presumption of
consistent usage applies also when different sections of an act
or code are at issue."). The Secretary cites no authority to
the contrary.
6The Secretary tries to avoid application of this canon by
suggesting that membership lists are more sensitive than CBAs
and therefore entitled to greater protection. But these
concerns are not apparent on the face of the statute, and the
Secretary cites no legislative history in support of the point.
- 8 -
supports rejecting the Court of Appeals' reading."). But
Congress did not say so. To be sure, what Poweigha claims is
not a right to obtain a copy but, in effect, a right to make one
herself. We doubt, however, that the distinction matters. It
would be passing strange, if not downright mean, for Congress to
have intended to withhold a right to receive a copy, while
simultaneously conferring a right on members to create
handwritten copies themselves.
The Secretary's remaining counterarguments need not
detain us long. First, the Secretary asserts that the
inspection right would "be nullified without the ability to take
notes." See Reply Brief for Appellant 5. But as the Secretary
himself acknowledges, "the purpose behind section 104" is to
"give[] union members . . . 'ideas'" that they may "put forward
to the union’s negotiators." Id. at 6. One need not be
permitted to take notes in real time to come away with ideas
from the review of a CBA; a working memory will do. Second, the
Secretary suggests that his interpretation is the better one
because it is more supportive of the LMRDA’s purposes of
protecting union members and promoting democratic self-
government within unions. But Congress was undoubtedly
balancing competing interests in enacting the LMRDA, and, in any
case, "no legislation pursues its purposes at all
costs." Rodriguez v. United States, 480 U.S. 522, 525–26 (1987)
- 9 -
(per curiam); cf. Calhoon v. Harvey, 379 U.S. 134, 140 (1964)
(noting, in construing the LMRDA, "the general congressional
policy to allow unions great latitude in resolving their own
internal controversies"). Third, the Secretary points to
another provision of the LMRDA, permitting members "for just
cause to examine any books, records, and accounts necessary to
verify" the union's annual financial reports, 29 U.S.C.
§ 431(c), which some courts have interpreted to permit note-
taking, see, e.g., Conley v. United Steelworkers of Am., Local
Union No. 1014, 549 F.2d 1122, 1123-24 (7th Cir. 1977). Whether
that interpretation is correct or not, the meaning of the word
"examine" in a separate provision of the LMRDA has little, if
any, bearing on the meaning of the word "inspection" in § 104 of
the Act. That is particularly apparent in light of the "just
cause" requirement that "protect[s] . . . unions from
harassment" when it comes to the exercise of the examination
right, a protection that unions do not enjoy when a member
wishes to inspect a union's CBAs with other employers. Conley,
549 F.2d at 1124.
For these reasons, we hold that, in conferring a right
on union members to "inspect[]" CBAs under § 104 of the LMRDA,
Congress did not also invest the members with a right to take
notes. Unions are free to permit note-taking, of course, or to
- 10 -
provide copies of such CBAs. But Congress has not commanded
them to do so.
Affirmed.
- 11 -