Appeals Court Allows International Boss’ Retaliation Claim to Proceed

The U.S. Court of Appeals for the D.C. Circuit ruled Aug. 21 that former secretary-treasurer of the Int’l Union of Electronic Workers Ron Gilvin, who was suspended after criticizing IUE’s president Edward Fire, may proceed with his claim that he was retaliated against for exercising his right to free expression in violation of the Labor-Mgmt. Reporting & Disclosure Act of 1959, popularly known as the Landrum-Griffin Act. Holding that Gilvin was covered by the LMRDA’s free speech provision, the D.C. Circuit reversed a district court decesion that the law protects only the rights of union members, not union officers. “That holding was an error of law,” the court said, explaining that it ran counter to the U.S. Supreme Court’s 1989 decision in Sheet Metal Workers’ Int’l Ass’n v. Lynn.

The D.C. Circuit’s decision involved IUE’s 1998 suspension of Gilvin for refusing to sign checks authorized by Fire. Gilvin, who subsequently was recalled by IUE members, maintained that the union violated his LMRDA rights to free expression because the suspension was imposed in retaliation for his criticism of Fire’s budget plans. Gilvin was critical of, among other things, increases in union subsidies to IUE district councils, as well as raises and travel reimbursements authorized by Fire. He was suspended in June 1998 after refusing to sign subsidy checks to IUE districts and recalled in October 1998 after a membership vote.

IUE argued against application of the Lynn decision to Gilvin’s case, Gilvin’s situation involved the removal of an elected official from office, not a suspension. The D.C. Circuit, however, called the distinction “insufficient,” pointing out that “the term of Gilvin’s suspension was indefinite, and it immediately relieved him of all official authority.”

“That action implicates the same concerns relied upon by the Court in Lynn: Union members who voted for Gilvin were denied the representative of their choice for the length of the suspension, and both Gilvin and those who observed what happened to him were likely to be ‘chilled in the exercise’ of their free speech rights,” the court said in a decision written by Circuit Judge Merrick B. Garland (Clinton). “We are unable to perceive a difference in the degree of ‘chill’ generated by suspension as compared to removal sufficient to justify a difference in outcomes.”

Nor did the court agree that LMRDA protections do not apply since Gilvin’s letters to union members criticizing the union leadership were inconsistent with his duties and precluded effective representation of the union. The “fact that the letters were critical of the union leadership can hardly suffice to remove the protections” of LMRDA. “Indeed, as the Supreme Court noted in Lynn, such criticism was ‘precisely’ what Congress intended to protect in passing the LMRDA.” Garland added that there was nothing about the substance of Gilvin’s criticism that was inconsistent with his duties as a union official. Circuit Judges Karen L. Henderson (H.W. Bush) and David S. Tatel (Clinton) joined in the opinion. [BNA 9/6/01]