Employment Law Daily Right to ‘inspect’ other employer’s CBAs negotiated by union didn’t include right to take notes
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Monday, July 16, 2018

Right to ‘inspect’ other employer’s CBAs negotiated by union didn’t include right to take notes

By Ronald Miller, J.D.

A union member’s statutory right to “inspect” collective bargaining agreements negotiated by her union with employers other than her own did not encompass a right to take notes while doing so, ruled the First Circuit. The appeals court first took the standard definition of “to inspect” as the statutory meaning. Thus, to “inspect” did not mean to take notes. That conclusion was buttressed by two features of the LMRDA itself. First, the legislative history of a neighboring provision made clear that Congress did not intend the term to include the right to take notes. Secondly, Congress gave employees whose rights were directly affected by a CBA the right to a copy of that CBA. Accordingly, Congress did not invest the member with a right to take notes of other CBAs (Acosta v. Local Union 26, UNITE HERE, July 11, 2018, Souter, D.).

Opportunity to inspect. Local Union 26, UNITE HERE has negotiated more than 40 collective bargaining agreements with various employers, including the member’s employer. The member was dissatisfied with the union’s administration, and asked it to permit her to review 37 CBAs negotiated with employers other than her own. Once the Secretary of Labor got involved, the union offered the member opportunities for that purpose, but said it would not allow her to take notes on the CBA during her inspections.

When the Secretary learned of the union’s position, he filed this action claiming that the union violated § 104 of the Labor-Management Reporting and Disclosure Act (LMRDA) when it refused to allow the member to take notes while inspecting its CBAs with other employers. The parties filed dueling motions for judgment on the pleadings, and the district court held that the member’s statutory right to “inspect” the agreements did not encompass a right to take notes while doing so.

Definition of inspection. The First Circuit observed that the standard definition and common understanding of “inspection” was the “act or process of inspecting,” and to “inspect” does not mean to take notes. Moreover, it concluded that taking the plain meaning of to “inspect” as the statutory meaning was buttressed by two features of the LMRDA that convinced the court that Congress did not intend the relevant clause to give union members a right to take notes while inspecting other employers’ CBAs.

First, the court noted that the LMRDA used the term “inspect” elsewhere, and the legislative history of that neighboring provision, Section 401(c), makes clear that Congress did not intend the term to include the right to take notes. Earlier drafts of that provision had included the right to “inspect and copy.” But Congress dropped the words “and copy” from the final version of the LMRDA. Under Section 401(c), Congress plainly did not intend the right to “inspect” to include the right to copy.

The second feature of the statute persuading the court was the fact that when Congress wished to provide individuals with a right to a “copy” of a CBA, it said so expressly. Specifically, Section 104 entitles any employee whose rights are directly affected by a CBA to a copy of that CBA. Thus, if Congress had intended to entitle union members to copies of every CBA a union negotiated, it needed only to say so. Accordingly, the appeals court held that in conferring a right of union members to “inspect” CBAs under Section 104, Congress did not also invest the members with a right to take notes.

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