International Union, United Auto., Aerospace & Agr. Implement Workers of America v. Brock, s. 84-5051

CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)
Citation251 U.S.App.D.C. 239,783 F.2d 237
Docket NumberNos. 84-5051,84-5864,s. 84-5051
Parties121 L.R.R.M. (BNA) 2685, 251 U.S.App.D.C. 239, 54 USLW 2436, 104 Lab.Cas. P 11,808 INTERNATIONAL UNION, UNITED AUTOMOBILE, AEROSPACE & AGRICULTURAL IMPLEMENT WORKERS OF AMERICA, et al., Appellants, v. William BROCK, Secretary of Labor, et al. INTERNATIONAL UNION, UNITED AUTOMOBILE, AEROSPACE & AGRICULTURAL IMPLEMENT WORKERS OF AMERICA, et al., Appellants, v. William BROCK, Secretary of Labor, et al.
Decision Date11 February 1986

Randy S. Rabinowitz and Laurence E. Gold, Washington, D.C., of the Bar of District of Columbia, pro hac vice, by special leave of the Court, with whom Jordan Rossen, Leonard Page, Stephen I. Schlossberg, Detroit, Mich., and Jules Bernstein, Washington, D.C., were on brief, for appellants. Abraham L. Zwerdling, Washington, D.C., also entered an appearance for appellants.

John C. Hoyle, Atty., Dept. of Justice, with whom Richard K. Willard, Acting Asst. Atty. Gen., Dept. of Justice, Joseph E. diGenova, U.S. Atty., and Robert S. Greenspan, Atty., Dept. of Justice, Washington, D.C., were on brief, for appellees.

Before WALD, GINSBURG and BORK, Circuit Judges.

Opinion for the Court filed by Circuit Judge WALD.

WALD, Circuit Judge:

This case involves the application of a provision of the Administrative Procedure Act foreclosing judicial review when "agency action is committed to agency discretion by law," 5 U.S.C. Sec. 701(a)(2), to a decision by the Department of Labor ("DOL") not to take enforcement action requested by one of the plaintiffs, and to the substantive interpretations of law announced in the course of that decision. The International Union, United Automobile, Aerospace & Agricultural Implement Workers of America, UAW ("Union" or "UAW"), The Center to Protect Workers' Rights, and the Workers' Defense League appeal from the district court's order in which the court dismissed the suit and held that section 701 precluded review of both aspects of the agency's action. We hold that the DOL's ultimate decision not to take enforcement action is nonreviewable under the principles of Heckler v. Chaney, --- U.S. ----, 105 S.Ct. 1649, 84 L.Ed.2d 714 (1985), but that its pronouncement of new statutory interpretations in an opinion explaining the nonenforcement decision is reviewable because standing, finality, and ripeness requirements have been satisfied, because the pronouncements have immediate consequences on those subject to the statute, and because the agency action in question cannot be reviewed at a later date. Accordingly, we remand to the district court to consider plaintiffs' claim that the challenged statutory interpretations are arbitrary, capricious, or otherwise contrary to law.

I. BACKGROUND
A. The Labor-Management Reporting Disclosure Act of 1959

During the late 1950s, the Senate Select Committee on Improper Activities in the Labor or Management Field (the "McClellan Committee") held extensive hearings on corrupt and unethical practices by unions, employers, and labor relations consultants. See Interim Report of the Select Committee on Improper Activities in the Labor or Management Field, S.Rep. No. 1417, 85th Cong., 2d Sess. (1958). As a result of these hearings, Congress enacted the Labor-Management Reporting Disclosure Act of 1959 ("LMRDA"), in order to "afford necessary protection of the rights of employees and the public generally as they relate to the activities of labor organizations, employers, labor relations consultants, and their officers and representatives." 29 U.S.C. Sec. 401(b).

The LMRDA has seven titles dealing with various facets of internal union affairs and labor-management relations. Title II of the Act requires that unions, employers, consultants, and other persons report certain kinds of activities involving union-labor relations. The Act "requires far more extensive reporting and disclosure requirements of unions and their officers than it does of employers and consultants." Donovan v. Master Printers Association, 532 F.Supp. 1140, 1142 n. 2 (N.D.Ill.1981), aff'd, 699 F.2d 370 (7th Cir.1983), cert. denied, 464 U.S. 1040, 104 S.Ct. 703, 79 L.Ed.2d 168 (1984). For purposes of this case, however, we need only focus on section 203 of the Act, 29 U.S.C. Sec. 433, which deals with the reporting requirements of employers and consultants. Congress imposed these requirements on the premise that certain conduct, even if legal, "should be exposed to public view, for if the public has an interest in preserving the rights of employees then it has a concomitant obligation to insure the free exercise of them." S.Rep. No. 187, 86th Cong., 1st Sess. 11, reprinted in 1 National Labor Relations Board, Legislative History of the Labor-Management Reporting and Disclosure Act of 1959 at 407 (1959), U.S.Code Cong. & Admin.News 1959, 2318, 2327. The contents of filed reports are public information available for public examination. See 29 U.S.C. Sec. 435; 29 C.F.R. Sec. 405.10, 406.9 (1985).

The Act requires that employers file annual reports on a variety of activities involving their relationship with unions, including:

(3) any expenditure, during the fiscal year, where an object thereof, directly or indirectly, is to interfere with, restrain, or coerce employees in the exercise of the right to organize and bargain collectively through representatives of their own choosing, or is to obtain information concerning the activities of employees or a labor organization in connection with a labor dispute involving such employer, except for use solely in conjunction with an administrative or arbitral proceeding or a criminal or civil judicial proceeding;

(4) any agreement or arrangement with a labor relations consultant or other independent contractor or organization pursuant to which such person undertakes activities where an object thereof, directly or indirectly, is to persuade employees to exercise or not to exercise, or persuade employees as to the manner of exercising, the right to organize and bargain collectively through representatives of their own choosing, or undertakes to supply such employer with information concerning the activities of employees or a labor organization in connection with a labor dispute involving such employer, except information for use solely in conjunction with an administrative or arbitral proceeding or a criminal or civil judicial proceeding; or

(5) any payment (including reimbursed expenses) pursuant to an agreement or arrangement described in subdivision (4); ...

29 U.S.C. Sec. 433(a).

The Act also requires reports from "persuaders":

Every person who pursuant to any agreement or arrangement with an employer undertakes activities where an object thereof is, directly or indirectly--

(1) to persuade employees to exercise or not to exercise, or persuade employees as to the manner of exercising, the right to organize and bargain collectively through representatives of their own choosing; or

(2) to supply an employer with information concerning the activities of employees or a labor organization in connection with a labor dispute involving such employer, except information for use solely in conjunction with an administrative or arbitral proceeding or a criminal or civil judicial proceeding; ...

29 U.S.C. Sec. 433(b).

The section, however, specifically excepts some activities that might otherwise fall within these reporting requirements. Relevantly, it provides that:

Nothing in this section shall be construed to require any employer or other person to file a report covering the services of such person by reason of his giving or agreeing to give advice to such employer or representing or agreeing to represent such employer before any court, administrative agency, or tribunal of arbitration or engaging or agreeing to engage in collective bargaining on behalf of such employer with respect to wages, hours, or other terms of conditions of employment or the negotiation of an agreement or any question arising thereunder.

29 U.S.C. Sec. 433(c).

Enforcement of the Act rests exclusively in the hands of the Secretary of Labor. He has the authority to institute civil, 29 U.S.C. Sec. 440, 1 or criminal actions, 29 U.S.C. Sec. 439, 2 against violators. No private cause of action exists to enforce the statute's provisions. See International Union, United Automobile, Aerospace and Agricultural Implement Workers of America v. National Right to Work Legal Defense and Education Foundation, Inc., 590 F.2d 1139 (D.C.Cir.1978).

B. Factual Background of This Case

In March, 1983, the UAW filed an administrative complaint with the Secretary alleging that Kawasaki Motor Corporation ("Kawasaki") and its attorney-consultants Tate & Sykes (the "Tate Firm"), had engaged in conduct at Kawasaki's Lincoln, Nebraska plant which should have been reported under sections 203(a) and (b) of the LMRDA. These allegedly reportable activities involved Kawasaki's attempts to thwart the UAW's organizing drive, attempts which had already been the subject of the National Labor Relations Board's ("NLRB") unfair labor practice proceedings and sanctions. Kawasaki Motor Corporation and International Union, United Automobile, Aerospace, and Agricultural Implement Workers of America, AFL-CIO (UAW), 257 N.L.R.B. 502 (1981), order enforced, 691 F.2d 507 (9th Cir.1982), cert. denied, 459 U.S. 1202, 103 S.Ct. 1186, 75 L.Ed.2d 433 (1983).

On March 29, 1982, the Director of the Labor Management Services Administration ("LMSA") responded to the UAW's complaint by disclosing that investigations into the matter had already been conducted, and that "[a]fter carefully reviewing the investigative findings, we have determined that reports were not required." Joint Appendix ("J.A.") at 104 (emphasis added). Subsequently, the UAW learned through a request under the Freedom of Information Act, 5 U.S.C. Sec. 552, that the LMSA field staff investigation had indeed...

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