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Paul Alan Levy
Public Citizen Litigation Group

Arthur L. Fox II
Lobel, Novins & Lamont

August 2, 1996 Attorneys for Amicus Curiae 

The Association for Union Democracy is a non-profit corporation, founded in 1969 and based in Brooklyn, New York, that seeks to further democratic principles and practices in labor organizations, both by encouraging members to participate actively in the internal life of their unions, and by protecting the exercise of their democratic rights. No other organization devotes itself primarily to this objective.

In order to accomplish this objective, the Association publishes a newsletter; holds educational conferences attended by workers, lawyers and scholars; gives advice to members experiencing union democracy and corruption problems; and refers members whose union democracy or corruption problems may require a litigation solution to lawyers who may be able to help them. In addition, the Association has participated as amicus curiae in numerous cases in the Supreme Court of the United States and in various appellate courts. E.g., Wooddell v. IBEW Local 71, 502 U.S. 93 (1991); IOMMP v. Brown, 498 U.S. 466 (1991); Breininger v. Sheet Metal Workers Local 6, 493 U.S. 67 (1989); Sheet Metal Workers v. Lynn, 488 U.S. 347 (1989); Finnegan v. Leu, 456 U.S. 431 (1982).

In the past, the Association has provided legal and other support to numerous workers who have been threatened with retaliation for their exercise of their free speech right to criticize the leaders of their unions. In this case, defendant Belk argued below that plaintiff Rumore's would have to prove his allegations that his free speech rights had been violated by clear and convincing evidence ("CCE"), and the district court cited that standard in the legal introduction to its opinion granting summary judgment against the plaintiff. 709 F. Supp. at 492. In our view, the protection afforded by the Labor-Management Reporting and Disclosure Act ("LMRDA") for members' free speech would be severely undermined if this Court were to agree with the district court in this regard.

As shown in this amicus brief, the Second Circuit, in wholly unexplained dictum, laid the foundation for what now appears to be a standing Second Circuit rule requiring proof by CCE in a very specific genre of LMRDA cases that is easily distinguished from this case. Moreover, its approach is contrary to the approach taken in other cases under the LMRDA and to the considerations that normally govern the adoption of a heightened standard or proof.

The Association does not want to see that mistake repeated in another circuit, particularly this one because so many national unions are headquartered in Washington, D.C. And yet the Association is concerned that the appellant's brief, devoted as it is to other issues as well as to partisan attacks on an electoral opponent, does not do an adequate job on this point.

The Association believes, however, that the judgment below should be affirmed on the preponderance of the evidence standard. When union leaders are criticized in political debate, they are entitled to respond in like terms, and debate within unions rarely resembles the exchanges at a garden party. Although speech by union leaders should certainly be examined with an eye to the possibility of implicit threats, there is nothing in the letters at issue here that can fairly be characterized that way, and the record seems to us sufficiently clean to warrant a grant of summary judgment on that basis. Because both Rumore and Belk have individual interests in the disposition of the merits that make their views on these legal issues different from those of the Association, we also include a brief analysis of the merits in this brief.

I. Violations of the Free Speech Provision of the LMRDA Need Be Established Only by a Preponderance of the Evidence, Not by Clear and Convincing Evidence.

In order to evaluate the contention that LMRDA rights must be proved by clear and convincing evidence, it is useful to recall the origins and objectives of the LMRDA. The Act grew out of the McClellan Committee's investigations of autocracy and corruption in the labor movement in the 1950's. S. Rep. No. 187, 86th Cong., 1st Sess. 2 (1959), reprinted in I NLRB, Legislative History of the LMRDA 398 (1959) ("Legis. Hist."). The McClellan Committee investigations revealed many different ways in which corrupt union leaders had dominated unions and remained unaccountable to their members. The Committee focused specifically on the problem of international union officers who "circumvent freedom of speech on the part of [a] local" by punishing local officers. E.g., 2 Legis. Hist. 1105 (1959) ("Legis. Hist.") (Senator Mundt, citing the McClellan Committee Hearings).

Unfortunately, Congress found that union officials did not always subscribe to democratic views of what is in the best interest of their members. According to one view, widely-held in the labor movement,

labor unions should be regarded as military organizations, for their function is to wage economic warfare with employers . . .. As a wartime army can neither brook divided leadership nor tolerate active dissidents, so must a union punish the trouble-makers in order to close ranks against employers and rival organizations.

Cox, Internal Affairs of Labor Unions Under the Labor Reform Act of 1959, 58 Mich. L. Rev. 819, 829 (1960). But when it enacted the LMRDA, Congress rejected that view, concluding that the needs of workers would be better served by truly democratic unions in which policies were formulated and adopted after open discussion, debate, and criticism. Id. As one court put it, the balance was struck in favor of democracy. Salzhandler v. Caputo, 316 F.2d 445, 451 (2d Cir. 1963); Navarro v. Gannon, 385 F.2d 512, 518 (2d Cir. 1967).

The LMRDA's Bill of Rights, including section 101(a)(2), was modeled on the constitutional Bill of Rights, and was intended to give union members rights comparable to constitutional rights that citizens enjoy against the government. 2 Legis. Hist. 1103, 1234, 1238. Thus, in construing the free speech provisions of the LMRDA, "First Amendment principles may be helpful, although they are not controlling," Steelworkers v. Sadlowski, 457 U.S. 102, 111 (1982). See also Reed v. UTU, 488 U.S. 319, 325 (1989). In Sadlowski, the Supreme Court looked to First Amendment precedents for guidance, although it found them distinguishable. 457 U.S. at 113 n.6.

It is unimaginable that a citizen would have to prove allegations of violations of his First Amendment rights by a heightened standard of proof such as clear and convincing evidence ("CCE"). Instead, that standard is highly disfavored and may be adopted only in limited circumstances, none of which obtains here.

The Supreme Court laid out the basic principles of narrowly confining the use of the CCE standard of proof in Herman & MacLean v. Huddleston, 459 U.S. 375 (1983), and subsequently in Price Waterhouse v. Hopkins, 490 U.S. 256 (1989). In Herman & MacLean, the Court rejected the contention that, by analogy to civil fraud actions, plaintiffs in securities actions under section 10(b) of the Securities Exchange Act of 1934 must prove their case by CCE. The Court stated,

[A] standard of proof serves to allocate the risk of error between the litigants and to indicate the relative importance attached to the ultimate decision. . . . A preponderance of the evidence standard allows both parties to share the risk of error in roughly equal fashion . . . Any other standard expresses as preference for one side's interests.

Herman & MacLean v. Huddleston, 459 U.S. 375, 389, 390 (1983) (quotation marks and citations omitted).

The interests of defendants in securities cases, the Court concluded, do not differ from the interests of other defendants sued for violation of other federal statutes, such as antitrust and civil rights laws, while the interests of plaintiffs are significant, and so should not be burdened by a heightened standard of proof.

In Price Waterhouse, the Court tightened considerably the standards for the adoption of a heightened standard of proof. This Court had held that an employer in a Title VII case, who seeks to rebut the employee's proof of discriminatory motive by showing that its adverse action would have occurred absent that motive, must make that showing by CCE. Hopkins v. Price Waterhouse, 825 F.2d 458, 471 (1987), citing Day v. Mathews, 530 F.2d 1083 (D.C. Cir. 1976). The Supreme Court rejected this standard, and the plurality opinion -- the only opinion that addressed the CCE issue in detail -- explained this determination in terms that are equally applicable to LMRDA cases. The preponderance of the evidence standard is one of the conventional rules of civil litigation, and the conventional rules generally apply in Title VII cases:

Exceptions to this standard are uncommon, and in fact are ordinarily recognized only when the government seeks to take unusual coercive action -- action more dramatic than entering an award of money damages or other conventional relief -- against an individual. . . . Only rarely have we required clear and convincing proof where the action defended against seeks only conventional relief . . ..

490 U.S. at 253 (citations omitted and emphasis added).

This Court recently discussed the unusual circumstances in which a CCE standard is applied to the proofs in private litigation. Shepherd v. ABC, 62 F.3d 1469, 1476-1478 (1995). Heightened standards of proof are appropriate, according to Shepherd, when the relief sought is inherently punitive (in that case, the imposition of inherent power sanctions), or where "the predicate misconduct at issue involves allegations of fraud or some other quasi-criminal wrongdoing by the defendant." Id. at 1477 (punctuation omitted). The only other common example in which the CCE standard applies is where necessary to protect a litigant's constitutional rights, as in defamation cases, Gertz v. Robert Welch, Inc., 418 U.S. 323, 342 (1974), or the withholding of medical treatment that is likely to result in loss of life. Cruzan v. Director, Missouri Dep't of Health, 497 U.S. 261, 282-285 (1990) (state may constitutionally refuse to withhold treatment absent CCE of constructive patient consent for such withholding).

Appellee's argument for a CCE standard of proof simply cannot meet these requirements. Like Title VII, the LMRDA is a remedial statute intended to protect individual plaintiffs. Like Title VII claims, LMRDA Title I claims seek ordinary kinds of relief, including damages and injunctions. The Supreme Court has repeatedly applied the ordinary rules of civil litigation to LMRDA cases, including statutes of limitations, Reed v. UTU, 488 U.S. 319 (1989), and the right to a jury trial. Wooddell v. IBEW Local 71, 502 U.S. 93 (1991). Indeed, in Reed the Court found LMRDA cases to be most analogous to civil rights cases under 42 U.S.C. § 1983. In such cases, proof is by a preponderance of the evidence, e.g., Mt. Healthy Bd. of Ed. v. Doyle, 429 U.S. 274, 287 (1976), and so, for the same reason that the Supreme Court chose a preponderance of the evidence standard in Herman & MacLean, supra, preponderance of the evidence is appropriate here.

Comparison between Title I and other parts of the LMRDA also supports rejection of appellees' approach. Under section 304(c), 29 U.S.C. § 464(c), during the first eighteen months after a trusteeship has been established, its validity is presumed so long as it has been established in accordance with the union's constitution and a fair hearing has been provided; "clear and convincing proof" of bad faith or improper purpose is expressly required to set it aside. But after the first eighteen months, the presumption is reversed and CCE is explicitly required to show that continuation of the trusteeship is necessary for a lawful purpose.

Congress protected trusteeships by this protective standard because it was persuaded that trusteeships provided a valuable tool for unions to clean up the very kinds of abuses that were the target of the LMRDA, such as financial malpractice and undemocratic procedures. S. Rep. No. 187, 86th Cong., 1st Sess. 17-18 (1959), reprinted in 1 NLRB, Legislative History of the LMRDA 413-414 (1959). Congress wanted to be sure, not only that it did not interfere with proper uses of trusteeship powers, but that unions would be affirmatively encouraged to impose trusteeships when needed. Congress did not, however, display comparable solicitude for union leaders charged with violating their members' free speech rights. The reasons that support the CCE standard for trusteeship cases, therefore, have no application in Title I cases. And, even more important, Congress' specific inclusion of the CCE standard in Title III, while omitting it from Title I, strongly supports the conclusion that Title I LMRDA cases were to be governed by a preponderance of the evidence standard.⁽¹⁾

We might add that, if the Court were to adopt a CCE standard for Title I cases, it would make them almost impossible to win. Plaintiff victories in trusteeship cases decided within the first eighteen months of the trusteeship are few and far between; once the union has established that it held a fair hearing and followed its own constitution, the CCE standard results in almost certain victory for the international union imposing the trusteeship. Indeed, courts are reluctant to allow plaintiffs to attack trusteeships under Title I precisely because it would allow them to evade Title III's heightened standard of proof. Farrell v. Teamsters, 888 F.2d 459, 461-462 (6th Cir. 1989). It is ironic that the court in Farrell used such reasoning to uphold the actions of the same international union which now argues that Title I requires CCE after all.

Accordingly, courts routinely use the preponderance of evidence standard in deciding cases or instructing juries in Title I cases.⁽²⁾ Although explicit discussion of the reasons for adopting the preponderance standard is rare, courts have explained at some length their refusal to adopt standards of proof which, in the words of the Supreme Court in Herman & MacLean, favor the interests of the union defendant.

The clearest such decision is Black v. Ryder/PIE, 970 F.2d 1461, 1466-1470 (6th Cir. 1992), where a union member argued that the jury had properly been instructed on a preponderance of the evidence standard using Mt. Healthy-style burden-shifting, and the court of appeals agreed. Moreover, several courts have expressly rejected an evidentiary standard whereby the union can defeat a Title I case so long as it has "some evidence" to support its position. These courts have agreed that the court makes a de novo determination, as in a constitutional free speech case, implicitly pursuant to a preponderance of the evidence standard. Black, supra; Petramale v. Laborers Local 17, 736 F.2d 13, 18 (2d Cir. 1984); Bise v. IBEW Local 1969, 618 F.2d 1299, 1304-1305 n.5 (9th Cir. 1979); see also Bradford v. Textile Workers, 563 F.2d 1138, 1143 (4th Cir. 1977).

This Court has not decided the issue posed here, but one of its decisions is inconsistent with the CCE standard. In Lamb v. Miller, 660 F.2d 792 (D.C. Cir. 1981), an elected union officer was tried by the executive board and removed from his position, purportedly because he had refused to account for certain expenditures. The officer charged that the expense allegations were a pretext to retaliate against him for criticizing the union president. The district court granted summary judgment for the union, relying on the "some evidence" rule, 105 LRRM 2519, 2523 (D.D.C. 1979), but this Court reversed: "When there is some evidence that the reason for removal from office was permissible and some evidence that the reason was impermissible, the question whether protected activities were a cause for removal must be resolved by the trier of fact." 660 F.2d at 794. On rehearing, the Court reaffirmed its reversal of summary judgment for the union, explaining that the plaintiff had produced "some evidence" in support of his contentions, which was enough to withstand summary judgment. Id. at 795.⁽³⁾

If, however, plaintiff had the burden of proving his contentions by CCE, the mere introduction of "some evidence" to support his allegations would not have been sufficient. In cases where the plaintiff has the CCE burden, the plaintiff must produce enough evidence to permit the jury to find against the defendant by CCE, Anderson v. Liberty Lobby, 477 U.S. 242 (1987), and merely "some" evidence, or evidence whose meaning is equivocal, is plainly insufficient to that end. United States v. Montague, 40 F.3d 1251, 1255 (D.C. Cir. 1994); Miss American Pageant v. Penthouse Int'l, 524 F. Supp. 1280, 1287 (D.N.J. 1981). Accordingly, adoption of defendant's proposed standard of evidence would require the panel to overrule this aspect of the Court's holding in Lamb v. Miller.

There is one, readily distinguishable, variety of LMRDA case where the CCE standard has been applied -- where appointed union officers claim that they were removed from their positions in retaliation for having exercised their rights of free speech. In Finnegan v. Leu, 456 U.S. 431 (1982), the Supreme Court held that the LMRDA does not confer employment rights on appointed union staff. The Court reasoned that democratically elected officers should have the right to hire loyal staff who would assist them in delivering on their campaign promises to the electorate. Still, the Court recognized that where the staff were also members of the union who enjoy protection under Title I, a different result might obtain either if they were neither confidential nor policymaking employees, or if their removal were part of a "deliberate effort to suppress dissent" within the union, a possibility raised by the Second Circuit in Schonfeld v. Penza, 477 F.2d 899 (2d Cir. 1973). In a series of cases involving the termination of union-member appointees, allegedly in retaliation for expression of their views, the Second Circuit has stated that they may prevail on the condition that they prove by clear and convincing evidence that they were the victims of a scheme to suppress dissent. E.g., Franza v. Teamsters Local 671, 869 F.2d 41, 45 (2d Cir. 1989); Cotter v. Owens, 753 F.2d 223, 229 (2d Cir. 1985).⁽⁴⁾

Just why the Second Circuit came to adopt a CCE standard for such cases is not at all clear. The standard was first mentioned in Newman v. CWA Local 1101 ("Newman I"), 570 F.2d 439 (2d Cir. 1978), where the court overturned a preliminary injunction ordering the reinstatement of a steward who had been removed in retaliation for dissent. The court cited Schonfeld v. Penza as support for an exception to that circuit's historic hesitancy to grant relief to union members that would interfere in unions' internal affairs: "Only when there is clear and convincing proof that the union action -- in this case the decertification of Newman as a job steward -- was 'part of a purposeful and deliberate attempt by union officials to suppress dissent within the union,' 477 F.2d 904, should the federal court act under the LMRDA." Schonfeld does mention the purposeful effort to suppress dissent, but says nothing about a CCE standard, and Newman I gave no other explanation for the adoption of the standard. That even the Second Circuit may not have placed much weight on this fragment of Newman I is suggested by the fact that the district court made detailed findings of fact on remand and reinstated the injunction, without any mention of the CCE standard. 99 LRRM 2755 (S.D.N.Y. 1978). The Second Circuit then affirmed with the statement that the district court had "applied the proper standards as outlined in our earlier opinion." Newman II, 597 F.2d 834, 836 (2d Cir. 1979).

The CCE standard was invoked again in Cotter v. Owens, 753 F.2d 223 (2d Cir. 1985), a case involving the removal of a union dissident from his appointed position as a member of a safety committee. Summary judgment was granted against Cotter on the ground that he held a policy-making position, and that his removal was not actionable even if it were part of a purposeful scheme to suppress dissent within the union. The Court of Appeals upheld the finding that Cotter was a policymaker, and thus unprotected under Finnegan v. Leu, supra, id. at 228, but reversed on the ground that Finnegan had not eliminated the Schonfeld cause of action for schemes to suppress dissent; however, the Court indicated, citing Newman I, "clear and convincing proof" would be required. Id. at 229. Again there was no other explanation for the adoption of a heightened standard of proof, and although the case was eventually tried to a jury on remand, 120 LRRM 2124 (S.D.N.Y. 1985), the brief opinion does not indicate whether the CCE standard was used and, in any event, there was no appeal.

The CCE standard next appeared in Franza, supra, where an appointed union benefit plan administrator claimed that he had been removed from his position for supporting the wrong candidate in a union election. The Court of Appeals cited Cotter and Newman I for the proposition that a scheme to suppress dissent had to be shown by CCE, 869 F.2d at 45, and stated, in upholding the decision in favor of the defendant: "As noted, a purposeful scheme to suppress dissent must be demonstrated by 'clear and convincing evidence.' Here the jury made no finding of a deliberate attempt to suppress dissent. Franza, 680 F. Supp. at 503 n.7." 869 F.2d at 48-49. Again, there was no explanation for the adoption of this standard, apart from the citation of the prior cases.

Moreover, review of the district court's decision shows that, because the parties disagreed about the standard, the jury had been asked to make its findings on both a preponderance and a CCE standard, and had found no deliberate scheme under either one. 680 F. Supp. 496, 503 n.7 (D. Conn. 1988). Accordingly, undersigned counsel, who represented Franza on appeal, made no arguments about the CCE versus the preponderance standard. Thus, although it seems clear enough that the panel, through its repeated reference to this standard, was expressing a firm conviction that CCE was required, its adoption of that standard cannot be characterized as a holding.

Amicus does not agree with the Second Circuit's wholly unexplained adoption of a CCE standard for Cotter and Franza type cases, but the Court need not address the question, for several reasons.⁽⁵⁾ First, Rumore is an elected official in both his local union and his Joint Council, not an appointee as in Cotter and Franza; he is thus protected against retaliatory removal from office by Sheet Metal Workers v. Lynn, 488 U.S. 347 (1989), and does not need the benefit of an exception to Finnegan. Second, he has not been removed from his position and has not sued over such a removal. Third, he has no need to resort to the "purposeful scheme" theory, regardless of the standard of proof that it requires. Finally, Rumore's opening brief expressly refuses to rest his claim against Belk on the "scheme to suppress dissent within the union" theory. Br. 26-30. And, for the reasons set forth above, the Court should not expand the Second Circuit's CCE standard beyond the limited genre of case for which it was developed by that court.

As the Supreme Court made clear in Hall v. Cole, 412 U.S. 1 (1973), the prospect of judicial intervention plays a crucial role in protecting members from violations of free speech rights by union leaders. Amicus' experience in advising union members over the past twenty-seven years confirms this conclusion, and we urge the Court not to adopt a standard of proof that would make it unduly difficult for members to vindicate the Congressional purpose of restoring union democracy by securing relief from the courts when union leaders infringe their right of free speech.

II. Belk's Free Speech Rights Entitled Him to Transmit to Rumore the Letters at Issue Here Because They Do Not Expressly or Implicitly Threaten Rumore With Unlawful Retaliation.

Although Amicus disagrees with the standard of proof that Belk advocated below, and which Judge Lamberth accepted in passing in his memorandum opinion, it does not believe that this difference requires reversal of the decision below, for several reasons. It is not clear that the district judge even applied the CCE standard when evaluating Rumore's proofs, and we do not believe that the facts of the case require application of any particular standard of proof. After all, the letters in question are in evidence, and there is no dispute that their transmission was motivated by Belk's knowledge of, and displeasure with, Rumore's plan to hold a meeting that constituted an exercise of free speech rights under the LMRDA. But no fair reading of those letters could elevate them into threats of retaliation.

In reaching this conclusion, we wish to make clear that we think it indubitably correct that, as Rumore contends in his brief, a union leader may "infringe" free speech rights by threatening unlawful retaliation, just as he may do so by actually retaliating. Johnson v. Kay, 860 F.2d 529, 537 (2d Cir. 1988) (threats of physical harm and menacing movements); Mallick v. IBEW, 644 F.2d 228, 236 (3d Cir. 1981) (threat of future charges); Guzman v. Bevona, 148 LRRM 2755, 2759 (S.D.N.Y. 1995) (threat of union-financed legal action); cf. Rodonich v. Laborers Local 95, 817 F.2d 967, 975-976 (2d Cir. 1987) (imposition of fine, despite no effort to collect it, infringes rights because further sanctions threatened).

Nor, for that matter, is it necessary that a communication contain explicit threats of retaliation in order to be actionable. After all, as the Supreme Court explained in a related context involving employer speech in a union organizing context, any assessment of the defendant's expression

must be made in the context of its labor relations setting . . . [a]nd . . . must take into account the economic dependence of the employees on their employers, and the necessary tendency of the former, because of that relationship, to pick up intended implications of the latter that might be more readily dismissed by a more disinterested ear . . . [in contrast to a public arena] where the independent voter may be freer to listen and employers as a class freer to talk.

NLRB v. Gissel Packing Co., 395 U.S. 575, 617-618 (1968).

We do not wish to be understood to suggest that the Court should apply in the intra-union context the morass of NLRB law concerning objective or non-objective predictions concerning the adverse consequences of unionization. We do submit, however, that when, for example, the plaintiff is a union member who depends on his union for hiring hall referrals or for contract grievance representation, the mere absence of an explicit threat in a communication from a union leader should not to be enough to warrant dismissal of the case. Indeed, speech which coming from a union leader empowered to use union authority for retaliatiory purposes may be actionable even though the same speech, directed by a rank-and-file member to an officer, would be merely rhetorical, and thus protected.

Those are not, however, the circumstances before the Court. Rumore and Belk are both union leaders who belong to opposing camps in a political struggle within the modern-day Teamsters union. The two sides have been lobbing verbal grenades at each other for many years, almost since the current administration took office. Section 101(a)(2) protectes Belk's right to criticize Rumore just as it protects Rumore's right to criticize Belk. And it is well-established that union discourse is often not pretty -- scabrous terms, vicious criticism, and outrageous accusations are almost the norm; nevertheless, such speech is unquestionably protected by the LMRDA. Salzhandler v. Caputo, 316 F.2d 445 (2d Cir. 1963).

Moreover, when two sides engage in a political debate, the issuance of one communication will often be in response to a communication from the other side. That is to say, in the terms discussed in the first section of this brief, they will be "motivated" by the other side's exercise of its right of free speech. And the speech on each side is intended to harm the other -- that is, to undermine the other's political standing among undecided voters and leaders. But simply because speech is motivated by a desire to produce the political demise of an opposing speaker does not, as Rumore's brief seem to suggest, provide one element of a free speech cause of action under the LMRDA. Absent any content that could reasonably taken as a threat, the mere fact that a communication is a response to speech does not advance Rumore's claim one iota toward establishing a cause of action under the LMRDA.

The courts should not, either by awarding relief, or even by allowing one side to bog the other side down in litigation over what are essentially healthy political speech and debate, prevent either side from using such expression to appeal to the membership at large for their support in an on-going debate. See Clark v. Esser, 821 F. Supp. 1230, 1237 (E.D. Mich. 1993). In our view, nothing in the Belk letters to Rumore goes beyond legally protected debate or crosses the line to become an implicit threat.⁽⁶⁾

Nor is Rumore economically dependent on Belk, a circumstance that might result in a less tolerant standard for Belk's speech. Neither one is a rank-and-file member, comparable to ordinary citizens in the union state. Each is a leader with substantial power and influence in his own camp. Belk is an elected Vice-President of the IBT who is the administrator of the "Ethical Practices Committee" ("EPC"), a trial body within the International which, on assignment from the IBT's General President, sometimes steps in to investigate and adjudicate allegations of wrongdoing within the union. Any action that the EPC might take against a union officer must be on the record, after a hearing. It is hard to compare Belk to the sort of union officer whose highly discretionary power over a member's livelihood requires especial scrutiny of communications to protect members against implicit threats.

If either of the parties might be intimidating, we might think it is Rumore. Rumore, after all, rose to union power in the footsteps of his father, Louis Rumore, who was forced to resign permanently from the union after the Court Officers under the Consent Decree in United States v. Teamsters, 88 CIV 4486 (DNE), filed charges against him based on membership in La Cosa Nostra. See Summary Report of the Independent Administrator as of February 29, 1992, Summary Chart of Status of Charges Filed, at page 6 Item 40, filed with the Court in that case. Under the circumstances, therefore, Belk has far more reason to be nervous about being targeted for attack by Rumore than Rumore has to be nervous about being under attack by Belk.

In summary, Belk's letters, although direct and accusatory, neither contain explicit threats of unlawful retaliation, nor can they reasonably be understood to contain such threats. Accordingly, the grant of summary judgment to defendant should be affirmed, albeit based on a different standard of proof and a different analysis of the merits than the one for which the union contends.

The judgment of the district court should be affirmed.

Respectfully submitted,
 
 

Paul Alan Levy

Public Citizen Litigation Group
 
 

Arthur L. Fox II

Lobel, Novins & Lamont
 
 

Attorneys for Amicus Curiae

August 2, 1996⁽⁷⁾

1. The legislative debates on Title I are not illuminating on this issue. During the Senate debate, Senator Goldwater read a letter suggesting that the burden of proof on claims of union reprisals based on free speech, like the burden in cases of employer reprisals, should be the preponderance of the evidence. 2 Legis. Hist. 1115, cited in Nelson v. Johnson, 212 F. Supp. 233, 268 (D. Minn.), aff'd, 325 F.2d 646 (8th Cir. 1963). The House Committee's bill made specific reference to the preponderance of the evidence standard, 1 Legis. Hist 765; the Landrum-Griffin substitute, which ultimately passed, was silent. 1 Legis. Hist. 631-632. We have found no floor comment explaining why the Landrum-Griffin substitute did not mention a standard of proof. However, because the Landrum-Griffin bill was generally considered more restrictive on unions that the Committee bill, see Levy, Legal Responses to Rank-and-File Dissent, 30 Buff. L. Rev. 663, 683 (1981), it is hardly likely that the intent was to raise members' standard of proof.

2. DeLong v. UAW, 1993 U.S. App. LEXIS 21611 (6th Cir. 1993), aff'g, 850 F. Supp. 614, 616 (S.D. Ohio. 1993); Shimman v. Frank, 625 F.2d 80, 89 (6th Cir. 1980); Vandeventer v. Operating Engineers Local 513, 579 F.2d 1373, 1380 (8th Cir. 1978) (reciting jury instructions to which no objection had been made); Keene v. IUOE Local 624, 569 F.2d 1375, 1379-1380 n.6, 1381 n.7 (5th Cir. 1975) (approving jury instructions); Mayes v. IUOE Local 106, 149 LRRM 2218, 2247 (N.D.N.Y. 1995); Teamsters for Democracy v. Padovano, 87 CCH Lab. Cas. ¶ 11,555 (S.D. Fla. 1979); Soto v. IOMMP, 466 F. Supp. 1294, 1301 (S.D.N.Y. 1979); Murphy v. IUOE, 99 LRRM 2074, 2086 (N.D. Ohio. 1978); Davis v. Ampthill Rayon Workers, 446 F. Supp. 681, 684 (E.D. Va. 1978); Morrissey v. NMU, 397 F. Supp. 659, 665 (S.D.N.Y. 1975); Strong v. Sheet Metal Workers, 90 LRRM 2795, 2799 (N.D. Cal. 1974); Yablonski v. UMW, 80 LRRM 3435, 3436 (D.D.C. 1972); Plant v. Laborers Local 199, 331 F. Supp. 73, 76 (D. Del. 1971); Cefalo v. International Union of District 50 UMW, 311 F. Supp. 946, 949, 953 (D.D.C. 1970); Calabrese v. Carpenters, 211 F. Supp. 609, 610 (D.N.J. 1962). See also Celli v. Shoell, 40 F.3d 324, 327 (10th Cir. 1994) (LMRDA jurisdiction subject to preponderance standard); Morrissey v. Curran, 83 LRRM 2942, 2948 (S.D.N.Y. 1972) (LMRDA § 501); Aho v. Bintz, 290 F. Supp. 577, 581 (D. Minn. 1968) (same). But see Thompson v. OPEIU, 74 F.3d 1492, 1500, 1507 (6th Cir. 1996) (in case involving removal from union office, jury was instructed on CCE standard; court does not say whether it approves, but refers to burden of rebutting prima facie case as being preponderance).

3. Unaccountably, appellant characterizes Lamb as a Fourth Circuit case.

4. Rumore errs in citing Adams-Lundy v. Professional Flight Attendants, 731 F.2d 1154 (5th Cir. 1984), as adopting a CCE standard. Br. 31. That case does not, in fact, mention that standard; nor did Judge Lamberth below cite it for that proposition.

5. A district judge has opined that the CCE standard is needed to prevent the "scheme to suppress dissent" exception from swallowing Finnegan entirely. Nixon v. UFCW Local 7, 751 F. Supp. 1491, 1494 (D. Colo. 1990). This is the only attempt to explain the adoption of the standard that we have seen. Regardless of whether it is a sufficient reason in the limited context of removal of appointed union officials -- and we question whether raising the standard of proof is either needed or a legally appropriate means to achieve that purpose -- there would be no reason to apply it here where the defendant is alleged to have threatened an elected official with unlawful retaliation.

6. Rumore's best argument would, if it were accurate, be his contention that Belk's second letter had the potential for intimidation by interrogating Rumore concerning the identity of persons who claimed that the IBT had behaved improperly. Br. 19. In some circumstances, union efforts to compel the identification of dissidents may well violate the LMRDA. Guzman v. Bevona, 148 LRRM 2760 (S.D.N.Y. 1995); see also United States v. Teamsters (Appeal of TDU and TRF), 968 F.2d 1506, 1508, 1511-1512 (2d Cir. 1992) (noting potential chilling effect of compelled disclosure of contributors and absence of law requiring of such disclosure). But Belk's letter does not ask for names of supporters; it only challenged Rumore's contention that the IBT had imposed politically motivated trusteeships by asking Rumore to identify the trusteeships that he thought were improper. And, in any event, the letters were little more than political rhetoric; Belk did not invoke his authority to force Rumore to answer even these questions; he simply used Rumore's anticipated refusal to embarrass him in the debate.

7. Counsel's word-processing program indicates that this brief consists of fewer than 8750 "words."

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