Proportional representation not required in union representation under guarantee of "fair and democratic elections"

That’s the finding from the First Circuit in its recent decision in Conille v. Council 93. The challengers sought equal (something akin to “one person, one vote” or proportionate representation in the makeup of elected vice presidential positions. While some of the selection of representatives were not in dispute, here’s how the court framed the mechanics of the disputed election mechanism:

To choose the vice presidents, Council 93's constitution divides the locals into thirteen legislative districts -- nine geographic and four organizational. These legislative districts do not have independent governing bodies; rather, they function solely as a way to divide delegates to nominate and elect members of the executive board. The Council 93 constitution allocates a specific number of vice president positions to each legislative district. The number allocated to each district bears little, if any, relationship to the number of members in that district. Rather, the allocations are artifacts of agreements made over time as locals have joined the Council. For example, a single vice president is chosen by the delegates representing over 1,800 members in the Vermont district, while four vice presidents are chosen by the delegates representing 1,500 employees in a “Department of Mental Health” legislative district. It is this type of disproportionality that triggers plaintiffs' displeasure.

The core of the dispute turns on construction of terms in the union’s constitution, and courts defer to the union’s interpretation, so winning a “one person, one vote” or proportionality claim would be difficult. But here’s the court’s analysis:

In the alternative, plaintiffs contend that the structure of Council 93's Executive Board violates the AFSCME constitution, particularly Paragraph 4 of its “Bill of Rights,” which provides that “[m]embers shall have the right to fair and democratic elections, at all levels of the union. This includes due notice of nominations and elections, equal opportunity for competing candidates, and proper election procedures which shall be constitutionally specified.”

. . .

The merits of plaintiffs' claim under the AFSCME constitution turns on the question of the proper interpretation of Paragraphs 4 and 7 of the constitution's Bill of Rights. When reviewing a union's interpretation of its own constitution, we defer to that interpretation unless it is plainly unreasonable. . . .

We begin with the constitution's text . . . noting at the outset the absence of any express guarantee of equal or proportional representation on its executive board or on any of its or its subsidiaries' governing bodies, including the subsidiaries' executive boards. This silence contrasts with the text of paragraph 7 of the AFSCME Bill of Rights, which states that “[a]ll members shall have an equal right to vote and each vote cast shall be of equal weight” specifically on issues pertaining to the collective bargaining of contracts, memoranda of understanding, agreements affecting members' wages, hours, or any other terms of employment. The union thus knew precisely how to require equally weighted votes on an issue within the constitution if it wished to do so; instead, it chose to use only the term “fair and democratic” when referring to how elections of its officers must be conducted.

So, we ask if this term by itself renders supererogatory the need to include explicitly the right to proportional representation or an equal vote. See Ramos v. Louisiana, ––– U.S. ––––, 140 S. Ct. 1390, 1400, 206 L.Ed.2d 583 (2020) (suggesting that, with respect to certain rights, the absence of an explicit grant of that right in the text of the Constitution does not imply the right does not exist, but rather, supports the inference that the right “was so plainly included” that stating it explicitly would be “surplusage”).

We think that it does not. We can assume the term “democratic,” by itself, implies a relatively equal right to vote on such matters as one is entitled to vote on, but it is too much of a stretch to say that it must also imply proportional representation on the executive board. The United States is generally considered to be a democracy in normal parlance, notwithstanding the effectively disproportionate representation in the Senate and the Electoral College. See Lyman v. Baker, 954 F.3d 351, 371 (1st Cir. 2020) (“The United States' system of representative democracy [includes] ... the Electoral College and ... Senate.”). Similarly, the term “fair” may suggest some restraint on the procedures used for voting. Paragraph 4 thus requires, as examples, “due notice of nominations and elections, equal opportunity for competing candidates, and proper election procedures which shall be constitutionally specified.” While this list is non-exhaustive, it would have been rather simple for the union to include within it the requirement of equal or proportional representation on all governing bodies, as it did in Paragraph 7 for labor concerns and within this paragraph for competing candidates. Yet, it did not.

The defendants' position that the voting system used to select officers of Council 93's executive board is fair finds further support in the fact that those procedures themselves are approved and subject to change by the convention, in which voting is weighted just as plaintiffs would have it be -- proportionate weight is assigned to the votes of convention delegates based on the number of members represented.

Moreover, the actual behavior being challenged is not precisely an undemocratic or unfair election as a result of an unequally weighted vote. In choosing delegates to the Council 93 convention, union member votes are weighted equally, and these conventions, like a parliament, carry out many of the important legislative powers of the union. Similarly, the five senior officers on Council 93's executive board are chosen according to an equally weighted vote of convention delegates, in much the way that a prime minister might be chosen by a parliament composed of equally weighted votes. It is only the selection of vice presidents to represent the legislative districts that is being challenged.

We have a difficult time saying that the members' right to “fair and democratic elections” necessarily guarantees equal representation on this subordinate body of executive officials. That a cabinet may be made up of appointed officials who do not proportionally reflect the full constituency does not mean that the underlying election was not fair and democratic. The constitutional clause at issue here guarantees only that, when members vote, the process is fair and democratic. The plaintiffs have not contended that their actual elections are otherwise, only that every officer must proportionally represent the constituency. As to that contention, they point to nothing in their constitution that imposes that requirement on Council 93 or any of AFSCME's subordinate bodies.

AFSCME itself also allocates seats and voting for positions on its own executive board in a manner that belies equal representation of every union member, as plaintiffs concede. Although plaintiffs suggest that the ASFCME executive board is somehow more proportional because it is a “hybrid house-senate-like” system, this is nothing more than a particular type of disproportionality. And plaintiffs do not offer any basis in the AFSCME constitution to suggest how much proportionality is enough to be “fair and democratic.” One would expect to find some good reason why AFSCME would view its constitution as outlawing a practice by the Council that it allows itself. Plaintiffs offer no such reason, and we are not willing to create one sua sponte, especially where we are to defer to AFSCME's reasonable interpretations of its constitution. . . . cf. Coleman v. Miller, 307 U.S. 433, 454-55, 59 S.Ct. 972, 83 L.Ed. 1385 (1939) (holding that a “lack of satisfactory criteria for a judicial determination,” inter alia, favors deference to other bodies in deciding what counts as a “Republican Form of Government”).

Of course, the district court reasoned that the voting structure need not be precisely proportional but should at least have “some neutral principle that justifies weighted voting,” and it found no such rationale besides a “hodge-podge of historic deals.” But negotiation and deal-work are the very heart of what unions do. In fact, plaintiffs imply the need to allow unions to make such compromises by suggesting that AFSCME's executive board representation is not problematic because it is like the U.S. House and Senate, which itself is nothing more than an historic deal. See Ronald J. Krotoszynski, Jr., Reconsidering the Nondelegation Doctrine: Universal Service, the Power to Tax, and the Ratification Doctrine, 80 Ind. L.J. 239, 252 (2005) (discussing how the apportionment of seats in the U.S. House and Senate was part of a complicated “deal” involving the balance of power between competing factions). While we recognize that Council 93 is constrained in the deals it can negotiate by the AFSCME constitution, we are hesitant to retroactively read the terms “fair and democratic” to invalidate the bargained-for exchanges that the union members agreed to over the years, especially when AFSCME has made no indication that it believes the term carries such weight and has opted not to restrict its councils in this way. If AFSCME had wanted to tie the hands of its councils in this matter, it certainly could have stepped in and chosen not to approve the provisions in the Council 93 constitution incorporating these deals. Its acquiescence is entitled to some consideration.