Association for Union Democracy

AUD in the Courts

AUD recently filed several amicus briefs, all penned by AUD Director Michael Goldberg. Here is a summary of two:

In Support of AFSCME Local 402 Members
Members of AFSCME Local 402 (see UDR 215) are pursuing legal action against their regional Council 93 (which spans several states in New England). At issue is the voting scheme that the Council uses to fill seats on its Executive Board. The scheme gives some small districts the right to fill up to five times the number of seats than several very large districts are entitled to. Thus, the power of some AFSCME members is vastly greater than others when electing these Board members. And said board members’ policies determine every rank-and-file member’s wages, hours and working conditions. The plaintiffs are represented by Boston-area attorney Mark D. Stern. The complaint alleges that Council 93’s wildly disproportionate voting scheme violates the equal voting rights provision of the LMRDA and violates the AFSCME Constitution’s Bill of Rights for Union Members. The plaintiffs’ complaint prevailed in District Court, and Judge William Young ordered AFSCME to create a more proportional voting scheme by the end of 2018. But in early 2021, the First Circuit voided the District Court decision, in large part because it found that the remedy the District Court ordered went beyond its judicial authority. The case is now back before the same District Court, and the Local 402 members are asking the Court to again find in their favor but with a more limited remedy.
In a related case, Local 402 members won the right to an appeal of actions taken by Council 93 in its “deactivation” of Local 402 without allowing the Local the right to an appeal, as guaranteed by the AFSCME Constitution. The First Circuit found the lower court erred in dismissing the charge and granted the right to said appeal. Local 402 members then appealed to the AFSCME Executive Board but lost, though the court victory did protect union member due process rights under AFSCME’s Constitution. Having lost the appeal, plaintiffs are again before the district court alleging the deactivation was retaliation, in violation of their free speech rights under Title I of the LMRDA.

In the Teamsters: Dissident Continues Battle Against Alleged Retaliation
In 2020, AUD filed an Amicus Brief in support of Teamster dissident Rob Atkinson. His case is before the Third Circuit in a judicial review of an NLRB decision upholding his termination. Atkinson alleges that his grievance never received a full hearing on the merits of his unfair labor practice claim when it was before a Teamster employer-union Joint Panel. The panel upheld UPS’ termination of Atkinson.
The NLRB field office found in favor of Atkinson by applying the deferral standard in place at the time, called Babcock & Wilcox, finding the panel had not provided evidence it considered the ULP. On appeal, the full Board reversed and took the opportunity to jettison the relatively new deferral standard (which AUD had argued for in an earlier Amicus Brief to NLRB because it better protected the rights of union dissidents in the grievance process). AUD’s Amicus Brief before the Third Circuit asks the court to overturn the Board’s action, and to force it to apply the Babcock &-Wilcox deferral standard to Atkinson.

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