those FERs that the District Council complains of is that they take the operation of certain aspects of the election process out of the hands of the current leadership, and place them under the control of the IRO. The IRO concedes that his motivation in drafting rules of this nature was the fear of potential abuses by the current leadership if the conduct of these aspects of the election process were vested in their hands. The District Council argues that such fears are groundless. But the point is that the Government, at the time the Consent Decree was negotiated, was clearly worried about the prospect that the incumbents might use any control over the conduct of the election to mar the fairness of the election in the manner that had been seen historically in the District Council, its locals, and other labor unions in the construction field.
I thus have no doubt that the Government, in agreeing that "supervise" be defined as it is in the Consent Decree, believed it had given the word the broadest possible meaning, necessary to enable the IRO to ensure that the election be a fair one. In response to this, the District Council argues simply that the intent of the parties was that "supervise" be defined as it had been in cases under the LMRDA. While that statement is obviously correct, it is not particularly helpful. When parties to an agreement choose to define a term by reference to something outside of the agreement, they do so for one of two reasons: they believe that whatever is referred to has a clear meaning that will guide a reviewing body in interpreting the term; or, they believe that whatever is referred to has an unclear or uncertain meaning, but the parties agree to take their chances on how the reviewing body will interpret the term.
It is thus wholly insufficient for the District Council to claim simply that the parties intended to define "supervise" as stated. The parties did not choose this definition randomly; in making the choice to define "supervise" as they did, each party believed that this choice would have a particular effect on the eventual meaning that would be given to the term. The District Council has made no attempt to explain what the intentions of the parties were when this particular definition was chosen. It has not offered any plausible explanation why the Government, given its undeniable fears about the dangers of incumbent involvement in elections, would have consented to a definition of "supervise" that it believed would ultimately yield an interpretation of the term that was either narrow, or unpredictable. Rather, the District Council has chosen to interpret this language in the Consent Decree as if it were a statute, susceptible to any interpretation supported by its plain meaning. The language of the Consent Decree is the most important outward evidence of what the parties agreed to, but it is the discernment of the parties' actual intent that is the function of the Court.
I conclude that, notwithstanding the District Council's present contention, at the time the parties entered into the Consent Decree they intended the definition of "supervise" to be a broad one, encompassing the IRO's actual conduct of certain aspects of the election process, as opposed to mere passive oversight. I base this conclusion on the nature of the events leading up to the Consent Decree, the overall intent and spirit of the Consent Decree, the obvious attempt to incorporate the broad definition embraced by Judge Edelstein, the Government's credible explanation of why this definition was chosen, and the District Council's failure to offer any alternative explanation of the parties' intent. The District Council's current effort to restrict the IRO's election role is no more than a reflection of its dissatisfaction with what he has done.
The Meaning of Supervise Under the LMRDA
In addition to finding that the parties intended the chosen reference to result in a broad interpretation of the meaning of "supervise", I also find, as Judge Edelstein did, that cases under the LMRDA do in fact give "supervise" the broad meaning intended by the parties.
The enactment of the LMRDA was "the product of congressional concern with widespread abuses of power by union leadership." Finnegan v. Leu, 456 U.S. 431, 435, 72 L. Ed. 2d 239, 102 S. Ct. 1867 (1982). Title IV of the LMRDA was enacted with the goal of insuring free and democratic elections of union officers. Furniture Moving Drivers v. Crowley, 467 U.S. 526, 536-7, 81 L. Ed. 2d 457, 104 S. Ct. 2557 (1983). Under the statutory scheme, members of a union are endowed with a variety of rights designed to insure that union elections are fair and democratic. LMRDA, § 481. Title IV provides that any union member, after exhausting internal union remedies, may file a complaint with the Secretary of Labor alleging that the conduct of an election violated that member's rights under the statute, or under the constitution or bylaws of the union. LMRDA, § 482(a). The Secretary then must investigate the complaint, and if he finds probable cause to find that an actionable violation has occurred, he can bring an action in the District Court to set aside the invalid election, if any, "and to direct the conduct of an election or hearing and vote upon the removal of officers under the supervision of the Secretary and in accordance with the provisions of this subchapter and such rules and regulations as the Secretary may prescribe." (emphasis added) LMRDA, § 482(b).
By itself, this language states only that the Court can order an election to be conducted under the supervision of the Secretary. It does not indicate whether pursuant to its "supervision", the Secretary may actually conduct the ordered election, nor does it state that the union must conduct the ordered election.
In the Teamster's case, Judge Edelstein cited Donovan v. Illinois Educational Association, 667 F.2d 638 (7th Cir. 1982) in support of the proposition that the Secretary's supervisory powers were broad. In that case, the Secretary of Labor sought to enjoin a union election held pursuant to the union's bylaws, on the ground that one of those bylaws was discriminatory. Id. The Court held that an injunction should be granted, since the challenged provision was in violation of the union member's rights. Id. at 642.
The Government cites Donovan, as well as another case, Hodgson v. Chain Service & Soda Fountain Employees, 344 F. Supp. 17 (D.D.C. 1972), in support of its position. In Hodgson, the Secretary sought, and was granted, an order voiding an election and "directing the conduct of a new election under the supervision of" the Secretary. Id.
Neither of these cases addresses the present issue. As the District Council correctly argues, those cases considered whether the Secretary could obtain an order directing that a particular aspect of a union election be conducted in a certain way. The present dispute is not about whether the IRO can draft rules that insist that every aspect of the election be conducted in a particular way; rather, it is about whether the IRO himself, as opposed to the union leadership, may seize control of the mechanics of running the election. That the IRO may order the union to do something does not necessarily mean that he is empowered to do that thing himself.
The cases cited by the District Council, however, also do not address the present dispute.
Those cases simply involved instances where a Court ordered that an election be conducted in the manner suggested by the Secretary of Labor. The District Council argues that in none of these cases did the Secretary actually take over the union's traditional role of running the mechanics of the election, but that factual happenstance is only relevant to the present legal question if the Secretary, in those cases, sought such involvement and was denied it.
I find that the Secretary's authority to "supervise" an election under the LMRDA would include the authority to take control over the actual mechanics of the election process. I do so based on a consideration of the role played by the Secretary in effectuating the Congressional purpose manifested in the LMRDA.
The LMRDA was enacted to further the public interest in free and democratic union elections. Donovan v. Local 6, Washington Teachers' Union, 241 U.S. App. D.C. 274, 747 F.2d 711 (D.C. 1984). In addition to this general interest in the integrity of elections, Congress sought to "prevent, discourage, and make unprofitable" improper conduct by entrenched union leadership." Id., quoting Senate Report at 5. The cases that have interpreted the Secretary's powers, while not addressing the specific question of whether the Secretary can control the mechanics of the election, have held consistently that the Secretary is empowered take those actions necessary to effectuate the purposes of the LMRDA. See, e.g., Wirtz v. Bottle Blowers Association, 389 U.S. 463, 473, 19 L. Ed. 2d 705, 88 S. Ct. 643 (1967). This follows naturally from the equitable nature of the Secretary's actions, and the fact that the pursuit of equitable relief requires the authority to invoke flexible remedies tailored to a particular situation. See, e.g., Donovan, 747 F.2d at 716, n. 2; Wirtz, at 471, n. 10 (quoting the legislative history of the LMRDA: "Remedies for the abuses should be direct...The legislation should provide an administrative or judicial remedy appropriate for each specific problem.")
Given the nature of the Secretary's role, I have no doubt that a Court could give the Secretary the power, under the supervisory authority granted in the LMRDA, to wrest control of the mechanics of an election from the incumbents if the Secretary's investigation found such control to be necessary for the conduct of a fair and democratic election. If an election had been run unfairly or undemocratically as a result of the incumbents' control of election mechanics, it is implausible to suggest that Congress would limit the Secretary's remedies to ordering those same incumbents "not to do it again".
That the Secretary can do more than simply obtain court orders directing the union leadership to do certain things was implicitly recognized by the Supreme Court. In Furniture Moving Drivers, 467 U.S. at 544, the Court was confronted with the question of whether an employee could bring a direct action in federal court to remedy LMRDA violations, or whether enforcement by the Secretary of Labor was the exclusive remedy available. In holding that Congress intended that the Secretary of Labor be the exclusive vehicle of enforcement of the LMRDA, the Court noted that one of Congress' concerns was the inherent inability of courts to effectively effectuate the purposes of the statute. Id. Justice Brennan, in a footnote, cited approvingly the testimony that Professor Archibald Cox had given before the Senate Subcommittee on Labor during consideration of the LMRDA:
"A court is also a clumsy instrument for supervising an election. The judicial process may be suitable for determining the validity of an election which has already been held; but if it is found invalid, or if no election has been held, judges have few facilities for providing an effective remedy. Merely to order an election might turn the authority to conduct the balloting over to the very same officers whose misconduct gave rise to the litigation. The court has no tellers, watchers, or similar officials. It would become mired in the details of the electoral process. To appoint a master to supervise the election would delegate the responsibility, but the master would face many of the same problems as the judge. Probably it is the consciousness of these weaknesses that has made judges so reluctant to interfere with union elections, though apparently a few court-conducted elections have been held." Furniture Moving Drivers, 467 U.S. at 544, n. 19. (emphasis added)