In the

United States Court of Appeals
For the Seventh Circuit

Nos. 96-1937 & 96-1939






Appeals from the United States District Court for the
Northern District of Illinois, Eastern Division.
Nos. 95 C 614 & 95 C 1725--James B. Zagel, Judge.


Circuit Judges.

   EASTERBROOK, Circuit Judge.  The Department of Justice
believes that the Laborers' International Union of North

America has been infiltrated by mobsters. In November
1994 the Organized Crime and Racketeering Section of
the Department's Criminal Division sent the Union a pro-
posed complaint alleging violations of the Racketeer In-
fluenced and Corrupt Organizations Act (RICO). The De-
partment threatened to file this complaint unless the
Union swiftly made internal changes to curtail the influ-
ence of organized crime. After a flurry of negotiations,
the Union's General Executive Board threw in the towel.
In January 1995 it issued an Ethical Practices Code, back-
ed up by an Ethics and Disciplinary Procedure with stiff
penalties. To administer the Code and Procedure the Board

created four new posts (General Executive Board Attor-
ney, Inspector General, Independent Hearing Officer, and
Appellate Officer), delegated enforcement powers to them,

and appointed persons whose backgrounds suggested that
they would be vigorous. John Serpico and Samuel Caivano,
Vice Presidents of the Union and members of the Board
who had been identified in the draft RICO complaint as
tools of organized crime, were suspended from office. An
administrative process was begun (before the Independent
Hearing Officer) to decide whether to make the suspen-
sions permanent. The Board also signed a contingent con-
sent decree empowering the Department to take sterner
measures--but the Department promised not to file this
decree in court unless it deemed the Board's other ac-

tions unsuccessful. So far, the Department appears to be
satisfied: it has not sought to implement the consent

   Serpico and Caivano believe that they have been thrown
to the wolves, and that Arthur A. Coia, the Union's presi-
dent (who remains in office), is the chief racketeer. They
filed separate suits contending that the Disciplinary Pro-
cedure violates Title I of the Labor-Management Report-
ing and Disclosure Act, 29 U.S.C. secs. 411-15, because it
was established without a vote of the membership. Caivano
later resigned his offices and dismissed his complaint. Ser-
pico lost because the district judge concluded that the
Board has power to alter the Union's governance struc-

ture in an emergency, which the Board reasonably judged
the threat of RICO litigation to be. 151 L.R.R.M. 2460
(N.D. Ill. 1996). Serpico's case is moot, for he has resigned
from the Union and lacks any interest in the outcome of
these proceedings. But the litigation lives on; five of the

Union's locals filed an identical suit of their own, and the
adverse judgment has been appealed to us.

   Article VIII sec. 2(b) of the Union's constitution authorizes
the Board to exercise legislative power when, in its opinion, it
deems it necessary to conform to or comply with the
law; or when, in its judgment, the exercise of such
power is deemed necessary, proper and appropriate
in an emergency. It may exercise this power for the

purpose of new legislation or to amend the Constitu-
tion of the International Union or the Uniform Con-
stitutions of affiliated Local Unions and District Coun-
cils. In the exercise of legislative authority other than
above specified, the General Executive Board may
submit any legislative proposal to the membership,

by referendum.

   The Board invoked this authority to establish the Code,
Procedure, and new offices. Discretion belongs to the
Board--which may act "when, in its opinion, it deems it
necessary" or "when, in its judgment, the exercise of such
power is deemed necessary, proper and appropriate"--not
to individual locals, and certainly not to a federal court.

Establishment of the constitution is an exercise in union
democracy; and departing from the constitution by shrink-
ing the Board's discretion defeats the members' choices.
If the language of the Union's constitution is conclusive,
then the district court's conclusion is compelled: the Board
was entitled to deem the steps "necessary" both to com-
ply with RICO and to avoid a lawsuit that might have

landed the Union in federal receivership, where the mem-
bers would enjoy no say at all. The word "necessary" in
a constitution does not mean "essential"; it means expe-
dient to the task at hand--for as the holder of legislative
power defines what tasks to pursue, it also may decide
how strong the support for the new rules needs to be.
McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 413-14

(1819). Although the Board might have proposed steps to
the membership and held a referendum, that could have
looked to the Department like foot-dragging and impelled
it to file suit all the quicker; assessing the risks of such
eventualities, and deciding how to respond, is what a legis-
lative body such as the Board is for.

   Although plaintiffs invoke Title I of the LMRDA, they are

vague about which provision of that statute the Board's ac-
tions violate. The only arguably relevant portion is sec.
101(a)(1) of the Act, 29 U.S.C. sec. 411(a)(1):

Every member of a labor organization shall have
equal rights and privileges within such organization

to nominate candidates, to vote in elections or refer-
endums of the labor organization, to attend member-
ship meetings, and to participate in the deliberations
and voting upon the business of such meetings, sub-
ject to reasonable rules and regulations in such organ-
ization's constitutions and bylaws.

The Board did not hold a vote of the members. But then
sec. 101 does not require any particular subject to be put

to a referendum; it says only that when voting occurs
every union member has equal rights to take part. Neither
sec. 101 nor the LMRDA as a whole chooses between direct
and representative democracy. The Union chose to have
a little of each: most legislative decisions are to be made

by the members, but the members also elect representa-
tives (the Board) who may legislate in defined circum-
stances. If in the Board's judgment those circumstances
come to pass, then the Board may act. Members retain
their right to overrule the Board by referendum, or to
throw the rascals out. At the Union's most recent General
Convention, on September 26, 1996, the membership de-
feated proposals to junk the Ethical Practices Code, Dis-
ciplinary Procedure, and new offices, and voted instead
to augment the Board's legislative powers. See Providence

Journal-Bulletin sec. 1 p. 9A (Sept. 27, 1996). We do not
think that this moots the case; the existence of the Code,
Procedure, and offices may have influenced the outcome
(the power to control the agenda, which the Board used,

can be potent). But it does show that the members have
not been deprived of the right to vote. All that happened
is that their elected representatives used powers bestowed
on them by the members' own votes. An ability to make
choices through representatives is important to effective
democracy. Decisions may be complex, and persons in a
large group who perceive that their votes are unlikely to
alter the outcome are unlikely to devote the time and
energy necessary to vote intelligently. It may then be best
to entrust decisions to a smaller body of representatives,
who have more time and better incentives to gather and

act on information. This the Union has done, and we are
neither authorized nor inclined to defeat that choice.

   Plaintiffs emphasize the word "emergency" and insist
that we should require the Board to prove its existence
to the court's satisfaction. The basis of this argument is
not sec. 101 but sec. 302, 29 U.S.C. sec. 462, a provision in
Title III of the LMRDA dealing with the imposition of
trusteeships on local unions. See Maher v. Electrical
Workers, 15 F.3d 711 (7th Cir. 1994). A trustee displaces
the existing governance structure, a step that requires
greater justification than implementing terms of an exist-
ing structure; moreover, sec. 302 limits the purposes for
which trusteeships may be established, which invites in-
quiry into the reasons the international union acted. Plain-

tiffs say that the district judge did not allow them ade-
quate discovery into the Board's purposes and motives.

Because the plaintiffs did not file an affidavit under Fed.
R. Civ. P. 56(f), this contention has not been preserved
for appellate review. More: sec. 101(a)(4) does not limit the
purposes for which elected officials may act if a union
chooses representative democracy.

   The most one can say is that a union's top officials can
defeat the members' votes by ignoring them--that is to
say, by exceeding their powers--as well as by miscount-
ing them, or by disfranchising some members. So there
is a judicial role in ensuring that a union's executive board
does not take an implausible view of its authority, see
Air Wisconsin Pilots Protection Committee v. Sanderson,

909 F.2d 213, 218 (7th Cir. 1990), an inquiry similar to

the one used in review of arbitral decisions: a silly "in-
terpretation" may show that the document wasn't being
interpreted, but was being ignored. See also Local 48 v.
Brotherhood of Carpenters, 920 F.2d 1047, 1054 (1st Cir.
1990); Newell v. Electrical Workers, 789 F.2d 1186, 1189
(5th Cir. 1986). The district court looked at the Board's
decision from this perspective and concluded that it rep-
resented a genuine interpretation of the Union's constitu-
tion. We, too, think that reasonable and honest inter-
preters could have concluded that the steps the Board
took were necessary to avoid a RICO complaint, which
given the dire consequences of a receivership could have
been deemed an emergency. Plaintiffs' argument that the
Board violated "fiduciary duties" to the members, see 29

U.S.C. sec. 501, is just another invitation to bypass the rep-
resentative institutions established in the Union's constitu-
tion; it falls with the argument under sec. 101(a)(1). Any more
intensive review would substitute an unelected judge for
the elected Board as the members' governing body.


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