FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STEEL WORKERS LOCAL 12-

369; DAVID ROBERTS,

Plaintiffs,

and

STEPHANIE B. GREEN,

Plaintiff-Appellant,

v.

UNITED STEEL WORKERS

INTERNATIONAL; UNITED STEEL

PAPER AND FORESTRY RUBBER

MANUFACTURING ENERGY ALLIED

INDUSTRIAL AND SERVICE WORKERS

INTERNATIONAL UNION; AFL-CIOCLC; HANFORD ATOMIC METAL

TRADES COUNCIL; AFL-CIO; DAVE

MOLNAA, husband and the marital

community thereof; VINCE STROOPS,

husband and the marital community

thereof; JANE DOE STROOPS, wife

and the marital community thereof;

KIRK DOMINA, husband and the

marital community thereof; JANE

DOE DOMINA, wife and the marital

community thereof; VICTOR CRUZ,

husband and the marital community

No. 10-35450

D.C. No.

2:07-cv-05053-

RHW

OPINION
2 USW LOCAL 12-369 V. USW INT’L

thereof; JANE DOE CRUZ, wife and

the marital community thereof; JIM

WOODWARD, husband and the

marital community thereof; JANE

DOE WOODWARD, wife and the

marital community thereof; CHERRIE

MILLER, wife and the marital

community thereof; JOHN DOE

MILLER, husband and the marital

community thereof; MARGIE

MEYERS, wife and the marital

community thereof; JOHN DOE

MEYERS, husband and the marital

community thereof; JIM OROSCO,

husband and marital community

thereof; JANE DOE OROSCO, wife and

the marital community thereof;

KAREN ALEXANDER, wife and the

marital community thereof; JOHN

DOE ALEXANDER, husband and the

marital community thereof; RANDY

KNOWLES, husband and the marital

community thereof; JANE DOE

KNOWLES, wife and the marital

community thereof; JANE DOE

MOLNAA, wife and the marital

community thereof,

Defendants-Appellees.

Appeal from the United States District Court

for the Eastern District of Washington

Robert H. Whaley, Senior District Judge, Presiding
USW LOCAL 12-369 V. USW INT’L 3

Argued and Submitted

April 8, 2013—Seattle, Washington

Filed September 6, 2013

Before: Dorothy W. Nelson, A. Wallace Tashima,

and Consuelo M. Callahan, Circuit Judges.

Opinion by Judge Tashima

SUMMARY*

Labor Law

The panel affirmed the district court’s judgment after

bench trial in a former local union president’s action alleging

race and gender discrimination and retaliation for having

engaged in protected speech under the Labor-Management

Reporting and Disclosure Act.

The plaintiff, a nuclear chemical operator at the Hanford

Nuclear Reservation, was the elected president of her local

union. She sued the local union, the international union, the

Hanford Atomic Metal Trades Council, and HAMTC’s

president.

Affirming the dismissal of claims under LMRDA § 609,

the panel held that this provision does not protect union

officers from discipline suffered in their official capacities.

* This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
4 USW LOCAL 12-369 V. USW INT’L

The panel also affirmed the district court’s judgment after

trial on claims brought under LMRDA §§ 101 and 102, Labor

Management Relations Act § 301, 42 U.S.C. § 1981, Title

VII, and the Washington Law Against Discrimination. The

panel held that the district court did not clearly err in finding

that the defendants did not engage in unlawful retaliation or

discrimination because, rather than reflecting discriminatory

or retaliatory animus, the actions taken against the plaintiff

were attributable to the competing interests of rival factions

within the local, or the need to alleviate the tension created

thereby.

COUNSEL

Natalie R. Ram (argued) and Deanne E. Maynard, Morrison

& Foerster LLP, Washington, D.C., for Plaintiff-Appellant.**

Danielle E. Leonard (argued), Peter D. Nussbaum, Matthew

J. Murray, Altshuler Berzon LLP, San Francisco, California;

Jay Smith and Joshua F. Young, Gilbert & Sackman, Los

Angeles, California, for Defendants-Appellees United Steel,

Paper and Forestry, Rubber, Manufacturing, Energy, Allied

Industrial and Service Workers International Union, AFLCIO, CLC.

Daniel Hutzenbiler (argued) and Richard H. Robblee,

Robblee Detwiler & Black PLLP, Seattle, Washington, for

Defendants-Appellees Hanford Atomic Metal Trades

Council, David and Jill Molnaa.

** The court appreciates and thanks counsel for her pro bono

representation of Plaintiff-Appellant on this appeal.
USW LOCAL 12-369 V. USW INT’L 5

OPINION

TASHIMA, Circuit Judge:

Plaintiff Stephanie Green, formerly President of the

United Steel Workers Local 12-369 (the “Local”), brings the

instant action against the United Steel, Paper and Forestry,

Rubber, Manufacturing, Energy, Allied Industrial and Service

Workers International Union, AFL-CIO, CLC (the

“International”), the Hanford Atomic Metal Trades Council

(“HAMTC”), and David Molnaa (collectively, “Defendants”). 

Green pursues claims for discrimination on the basis of race

and gender and retaliation for having engaged in protected

speech under the Labor-Management Reporting and

Disclosure Act (“LMRDA”), 29 U.S.C. § 401 et seq. The

district court dismissed Green’s claims under LMRDA § 609,

but permitted the remainder of her claims to proceed to trial. 

Following a ten-day bench trial, the district court entered

judgment in favor of Defendants, finding that they had not

unlawfully discriminated or retaliated against Green.

On appeal, we hold that LMRDA § 609 does not protect

union officers from discipline suffered in their official

capacities, and therefore the district court properly dismissed

Green’s claims under this provision. We further affirm the

district court’s judgment entered after trial.

I. BACKGROUND

A. Factual Background

As underscored by the length of the trial below, the

factual history of this case is extensive to say the least. We
6 USW LOCAL 12-369 V. USW INT’L

focus on the actors, events, and controversies most relevant

to Green’s claims.

1. Parties

Green is a nuclear chemical operator (“NCO”) at the

Hanford Nuclear Reservation in Richland, Washington. In

November 2005, Green was elected President of the Local,

making her the first female and first African-American

President in the Local’s history. Green was reelected in May

2009, and she continued to serve as President at the time of

trial.

The Local is an amalgamated local that is headquartered

in Richland and maintains branches in the states of

Washington, Hawaii, and Oregon. As of 2007, over half of

the Local’s 1400 members were, like Green, employed at the

Hanford Reservation.

A unique representation arrangement exists for members

employed at Hanford. The Local and fourteen other unions

with members at Hanford comprise HAMTC. HAMTC, and

not the constituent unions, acts as the collective bargaining

agent for Hanford union employees. Defendant Molnaa has

served as President of HAMTC since 2005.

The International is the parent organization of the Local. 

It assumed this status in April 2005 after merging with the

Local’s previous parent, the Paper Allied-Industrial Chemical

and Energy Workers International Union (“PACE”). During

the period relevant to this suit, Vincent Stroops was a staff

representative for the International, serving in this capacity as

a liaison between the International and the Local. Jim

Woodward was a Subdistrict Director for the International,
USW LOCAL 12-369 V. USW INT’L 7

covering the district to which the Local belongs. Woodward

reported to Terry Bonds, who served as District Director for

the International. Leo Gerard is President of the

International.

2. Decertification Effort in 2002

Green was embroiled in disputes within the Local well

before being elected President. In 2002, Green and other

NCOs formed a group that attempted to decertify the Local as

their representative. According to the district court, the

NCOs contended that the Local was not adequately serving

their interests relative to the other bargaining units within the

Local.

Stroops, then acting as a staff representative for PACE,

filed formal charges against Green and the other NCOs for

violating the PACE Constitution. The charges against Green

were dismissed because she was not provided proper notice,

but other members of the group were found guilty and

suspended from the Local for various periods of time.

3. Steward Election in 2005

In January 2005, Green won an election to serve as

“steward” for a subset of NCOs at the Hanford Reservation. 

Following the election, a dispute arose as to the scope of this

position. The notice for the election had listed the relevant

position as covering the “K-Basin,” which includes three

separate buildings – “K-East,” “K-West,” and “CVD.” 

Green’s predecessor as steward, Kirk Domina, had been

recognized as steward for the entire K-Basin. However, after

Green won the election, Karen Alexander, one of the Local’s

staff representatives and a member of its Executive Board,
8 USW LOCAL 12-369 V. USW INT’L

informed Green that her position covered only the K-West

building and that there was no steward position for the entire

K-Basin. Randy Knowles, then-President of the Local, later

reiterated this position.

In May 2005, the Local agreed to recognize Green as the

point of contact for the entire K-Basin. Nevertheless, in July

2005, Green filed internal charges with the Local’s Executive

Board, alleging that the events surrounding the steward

election reflected discrimination attributable to her race and

gender. Green filed a similar complaint with the Equal

Employment OpportunityCommission (“EEOC”) in October

2005. On May 24, 2007, the EEOC issued a determination

that there was cause to believe that Green’s allegations were

meritorious.

4. Election as President and Union Governance

Disputes

Green was elected President of the Local in November

2005. When the election results were received, Karen

Alexander apparently commented: “We’ll just let the fucking

niggers run it then. See if they can do any better than I did.”

When the Local’s leadership ordered that the election be

rerun, Green appealed the decision to the International. In

April 2006, the International overturned the decision and

ordered that Green be seated as President.

On May 4, 2006, Green presided over her first Executive

Board meeting as President. Tensions rose when Green

announced that, contrary to prior practice, certain decisions

by the Executive Board would be subject to ratification by

union members at the Local’s monthlymembership meetings. 

Because these membership meetings were held in Richland,
USW LOCAL 12-369 V. USW INT’L 9

NCOs at the Hanford Reservation comprised a

disproportionate percentage of those able to attend, while

members from outlying branches such as the Spokane branch

were inevitably underrepresented. Indeed, in response to

Green’s announcement, an Executive Board member from the

Spokane branch warned Green that the new policywould lead

to the Local losing its Spokane units. Green’s response to

this warning was simply, “OK.”

As was likely the intended effect, after the new policy

was implemented, decisions of the Executive Board were

regularly overturned at the monthly membership meetings in

Richland.

5. Decertification of Spokane Units

The warning Green received at the Executive Board

meeting proved to be correct: two units of the Spokane

branch – pharmacists and technicians – ultimately decided to

decertify from the Local. Green contends, however, that she

was unduly marginalized in this process.

In July 2006, the International arranged a meeting with

the Spokane pharmacists to discuss the unit’s desire to

decertify. Green traveled to Spokane to participate in the

discussions, but upon her arrival, an official with the

International informed her that she would not be allowed to

attend the meeting. The pharmacists eventually decertified

from both the Local and the International. In June 2007, the

technicians at the Spokane branch decertified from the Local,

but were permitted to form a new local within the

International. Again, Green was not included in the

discussions concerning the unit’s decertification efforts.
10 USW LOCAL 12-369 V. USW INT’L

6. Signature Authority

After Green’s election, a controversy developed over

whether Green had “signature authority” with respect to

communications with HAMTC. Locals can only

communicate with employers at Hanford through HAMTC,

and HAMTC will only forward certain documents if the

documents have been signed by an official for the local who

has signature authority. Initially, Molnaa, the President of

HAMTC, refused to recognize Green’s signature authority. 

Molnaa would instead return documents that had been signed

by Green to Karen Alexander (to recall, one of the Local’s

staff representatives) and have Alexander add her signature. 

Molnaa testified that he would only recognize Green’s

signature authority if she were a staff representative or if a

staff representative told him that she had such authority. 

Green declined, on principle, to ask Alexander to convey to

Molnaa that Green should be afforded the authority. Green

notes that Molnaa recognized the signature authority of prior

presidents, but Defendants counter that those presidents also

had been staff representatives.

The dispute was resolved in January 2007 when Stroops,

acting on behalf of the International, requested that Molnaa

recognize Green’s signature authority. Molnaa thereafter

recognized Green’s authority.
USW LOCAL 12-369 V. USW INT’L 11

7. Maki Commission

a. Initial Maki Hearing and Report

In December 2006, a group of Local officers and

employees, led by Executive Board member Margie Myers,

wrote to International President Gerard and levied a host of

allegations against Green. The group alleged that Green had

failed to uphold her duties as President, misappropriated

funds, acted in violation of the relevant constitutions and

bylaws, falsified records, harassed officers, and failed to

represent the union.

In response to the allegations, Gerard appointed

International representative Thomas Maki to investigate the

charges. Maki conducted a three-day hearing in February

2007. On May 24, 2007, Maki issued a report clearing Green

of any wrongdoing. Maki further concluded that Green and

her allyDave Roberts had done nothing to warrant either their

removal from office or placing the Local under an

administratorship.

b. Green’s 2007 EEOC Complaint

On February 14, 2007, shortly before Maki’s three-day

hearing, Green filed a second complaint with the EEOC

alleging that she was experiencing discrimination on the basis

of her race and gender. The International hired the law firm

of Gilbert & Sackman to prepare a response to the charges. 

On April 23, 2007, the firm submitted a response on behalf of

both the International and the Local.
12 USW LOCAL 12-369 V. USW INT’L

Gilbert & Sackman submitted invoices to the Local for

the work done in preparing this response, but at its April 2007

general membership meeting, the Local voted not to authorize

funds for the fees. Green contends that she left the room

prior to the debate over whether to authorize the payments.

c. Second Maki Report

On August 10, 2007, Maki issued an amended version of

his report. The body of the report, which addressed the

specific allegations levied by Myers in December 2006, was

identical to the previous version issued in May. Maki,

however, amended the conclusion of the report to recommend

that the Local be placed under an administratorship.

Maki cited the following reasons for this new

recommendation: (i) the Local had failed to process internal

grievances filed by certain members; (ii) Green had violated

the Local’s bylaws by removing members of committees

without the Executive Board’s approval; (iii) the Local had

terminated full-time employees, subjecting the Local to

potential legal and financial liabilities; (iv) Green had filed an

EEOC complaint against the Local, and while Maki “[had] no

problem with that,” he had “learned that the Local Union

ha[d] decided, at the President’s urging, not to retain legal

counsel to defend the Local against these charges,” which

“would seem to be a conflict of interest”; and (v) there were

“serious allegations of lack [of] representation” regarding

some of the Local’s units.

In his deposition testimony, Maki could not recall

precisely when he had learned of these new allegations, but

he stated that they had been relayed to him by Subdistrict

Director Woodward or another International employee. Maki
USW LOCAL 12-369 V. USW INT’L 13

conceded that, before issuing the amended report, he had not

offered Green an opportunity to respond to the new charges.

8. Imposition of Administratorship

Based on the amended Maki report, Bonds, the

International’s District Director, sent an e-mail to President

Gerard recommending that the Local be placed under an

emergency administratorship. The reasons provided by

Bonds tracked in language and substance those used by Maki

in his amended report. On August 20, 2007, Gerard imposed

an emergency administratorship on the Local. Green and

Roberts were suspended as officers as a result of the

administratorship.

Green and Roberts filed suit to enjoin the International’s

actions, and the district court granted the request for

injunctive relief. The district court noted that, under the

International’s constitution, a full hearing was required prior

to imposing an administratorship, except in cases of

emergency. The court concluded that there had not been an

adequate hearing conducted in this instance and that the

circumstances did not constitute an emergency. Accordingly,

the court ordered that the administratorship be dissolved and

that Green and Roberts be restored to their elected positions.

9. Kins Commission

The problems within the Local persisted after Green was

reinstated. On October 15, 2007, Executive Board member

Margie Myers e-mailed Gerard and Bonds, among others, and

informed them that Green had fired the Local’s secretary. 

Myers added, “When are you guys going to realize that every

day you wait to come and put us in administratorship she gets
14 USW LOCAL 12-369 V. USW INT’L

stronger. If you get in here now, you might possibly save this

local and yourselves $50K that she is trying to get to her

attorney to fight you!” In response to this e-mail, Gerard

wrote to Bonds, “I think we need to move qui[c]ker . . . have

we done an audit . . . what are we doing.”

On October 17, 2007, Green conducted a “special

meeting” of the Local, allegedly without providing proper

notice to members. At this meeting, Green appointed an

officer to an elected position and made decisions on the

expenditure of union funds. Bonds subsequently wrote to

Green to inform her that the meeting had been unauthorized

and that any actions taken at the meeting were invalid.

On October 19, 2007, Bonds wrote to Gerard requesting

that another commission be convened to investigate Green’s

conduct. Bonds cited the above-described unauthorized

meeting, the backlog of grievances, news that HAMTC had

begun exploring whether to expel the Local, and the repeated

reports of conflict within the Local. Pursuant to this letter,

Gerard appointed another commission, this one chaired by

David Kins.

The Kins Commission held its hearing over three days in

November 2007. In its report, the Kins Commission

recommended that the Local be placed under an

administratorship. The report relied principally on the

Local’s failure to process grievances and the subverting of the

Local’s democratic processes. With respect to the latter

issue, the report cited the disenfranchisement of outlying

branches, the discharge of employees without the

involvement of the Executive Board, and the special meeting

that Green conducted in violation of the Local’s bylaws.
USW LOCAL 12-369 V. USW INT’L 15

Following the issuance of the Kins Commission’s report,

an appeal panel for the International rejected the

recommendation to impose an administratorship. The panel

noted that, since the Kins Commission hearing, Green had

made significant progress in processing grievances and had

expressed a willingness to both improve internal relations and

facilitate the Local’s democratic functioning.

B. Procedural History

The above facts gave rise to two separate suits that were

consolidated for purposes of trial. The first suit was the

previously described action filed by Green, Roberts, and the

Local against the International in August 2007 seeking to

enjoin the administratorship. In January 2008, the plaintiffs

amended their complaint to transform the suit into a

discrimination action.

The second suit was filed by Green in November 2007

against the International, HAMTC, Molnaa, Stroops,

Woodward, and various individuals associated with the

Local.1 This suit is the subject of the instant appeal. Green

filed an amended complaint on April 4, 2008, asserting

causes of action under LMRDA §§ 101, 102, and 609, the

Labor Management Relations Act (“LMRA”) § 301,

42 U.S.C. § 1981, Title VII, and Washington state antidiscrimination law. On July 25, 2008, the district court

dismissed Green’s claims under LMRDA § 609, but

permitted the remainder of her claims to proceed to trial.

1 This action was initially numbered No. 07 cv-5066, but it assumed the

case number of the first action when the two actions were consolidated in

March 2009.
16 USW LOCAL 12-369 V. USW INT’L

The district court consolidated the two actions on March

11, 2009. In November 2009, the district court presided over

a ten-day bench trial.2 At the close of Plaintiffs’ case,

Defendants moved for judgment pursuant to Federal Rule of

Civil Procedure 52(c). The district court granted Defendants’

motion, finding that they had not engaged in unlawful

discrimination or retaliation. Final judgment was entered on

April 12, 2010, and Green timely appealed. We have

jurisdiction under 28 U.S.C. § 1291.

II. STANDARDS OF REVIEW

In reviewing the district court’s judgment entered under

Rule 52(c), we review its findings of fact for clear error and

its conclusions of law de novo. Lee v. W. Coast Life Ins. Co.,

688 F.3d 1004, 1009 (9th Cir. 2012). If the district court

applied the correct legal rule, we may set aside its findings of

fact as clearly erroneous only if they are “illogical,

implausible, or without support in inferences that may be

drawn from the facts in the record.” United States v.

Hinkson, 585 F.3d 1247, 1263 (9th Cir. 2009) (en banc). In

applying this standard in the context of a bench trial, we

“must constantly have in mind that [our] function is not to

decide factual issues de novo.” Anderson v. City of Bessemer

City, 470 U.S. 564, 573 (1985) (internal quotation marks

omitted). “If the district court’s account of the evidence is

plausible in light of the record viewed in its entirety, [we]

may not reverse it even though convinced that had [we] been

sitting as the trier of fact, [we] would have weighed the

evidence differently.” Id. at 573–74.

2 The plaintiffs dismissed all of the individual defendants except for

Molnaa prior to trial.
USW LOCAL 12-369 V. USW INT’L 17

With respect to the district court’s dismissal of Green’s

claims under LMRDA § 609, we review the grant of a motion

to dismiss de novo. Autotel v. Nev. Bell Tel. Co., 697 F.3d

846, 850 (9th Cir. 2012).

III. DISCUSSION

A. Section 609 of LMRDA

The district court dismissed Green’s claims under § 609

on the ground that the provision does not extend protections

to union officers in their official capacities. This question is

essentially one of first impression across the federal Courts of

Appeals.

The LMRDA, enacted in 1959, “was the product of

congressional concern with widespread abuses of power by

union leadership.” Finnegan v. Leu, 456 U.S. 431, 435

(1982). Title I of the LMRDA, denominated the “Bill of

Rights of Members of Labor Organizations,” enshrines

protections for union members parallel to certain rights

guaranteed under the Federal Constitution. Id. To this end,

§§ 101(a)(1) and (2) of Title I guarantee equal voting rights
18 USW LOCAL 12-369 V. USW INT’L

and the rights to free speech and assembly.

3

Id. at 436 (citing

29 U.S.C. § 411(a)(1)–(2)).

Two separate provisions allow for enforcement of the

rights enumerated in § 101. Section 102 creates a private

right of action for the infringement of any Title I rights,

providing, in pertinent part:

Any person whose rights secured by the

provisions of this subchapter have been

infringed by any violation of this subchapter

may bring a civil action in a district court of

the United States for such relief (including

injunctions) as may be appropriate.

29 U.S.C. § 412. Section 609, which is not in Title I,

similarly provides:

It shall be unlawful for any labor organization,

or any officer, agent, shop steward, or other

representative of a labor organization, or any

employee thereof to fine, suspend, expel, or

 

3

 Of particular relevance, § 101(a)(2) provides, in pertinent part:

Every member of any labor organization shall have the

right to meet and assemble freely with other members;

and to express any views, arguments, or opinions; and

to express at meetings of the labor organization his

views, upon candidates in an election of the labor

organization or upon any business properly before the

meeting, subject to the organization’s established and

reasonable rules pertaining to the conduct of meetings.

29 U.S.C. § 411(a)(2).
USW LOCAL 12-369 V. USW INT’L 19

otherwise discipline any of its members for

exercising any right to which he is entitled

under the provisions of this chapter. The

provisions of section 412 of this title shall be

applicable in the enforcement of this section.

29 U.S.C. § 529 (emphasis added).

The primary difference between § 609 and § 102 is that

§ 609 protects against retaliation for the exercise of any right

secured under the LMRDA, whereas § 102 only protects

rights secured under Title I.

4

See Finnegan, 456 U.S. at 439

n.10.

In Finnegan, the Supreme Court limited the reach of both

§ 609 and § 102 with respect to appointed union officers. 

The plaintiffs in Finnegan were former business agents of a

local who had openly supported the incumbent candidate in

the local’s presidential election. See id. at 433. The agents

had been appointed by this incumbent, and when the

challenger won the election, he discharged the agents from

their positions. See id. at 434–44. The Court held that the

agents could not maintain a cause of action under either § 609

or § 102. With respect to § 609, the Court held that term

“discipline” as used in the provision “refers only to retaliatory

actions that affect a union member’s rights or status as a

member of the union.” Id. at 437. In other words, § 609

 

4 As the Supreme Court explained in Finnegan, the substantial overlap

between § 609 and § 102 is likely attributable to hasty legislative drafting. 

See Finnegan, 456 U.S. at 439 n.10. Section 609 was originally drafted

as a criminal provision. See id. It was later amended to allow for civil

enforcement by the Secretary of Labor, and it was only a day before final

passage that it was transformed into a private remedy. See id.
20 USW LOCAL 12-369 V. USW INT’L

encompasses only “punitive actions taken against union

members as members.” Id. at 437–38.

With respect to § 102, the Court noted the possibility that

“a litigant may maintain an action under § 102 – to redress an

‘infringement’ of ‘rights secured’ under Title I – without

necessarily stating a violation of § 609.” Id. at 439. The

Court held, however, that “whatever limits Title I places on

a union’s authority to utilize dismissal from union office . . . ,

it does not restrict the freedom of an elected union leader to

choose a staff whose views are compatible with his own.” Id.

at 441 (internal citation omitted).

In Sheet Metal Workers’ International Ass’n v. Lynn,

488 U.S. 347 (1989), the Court declined to extend Finnegan’s

§ 102 analysis to elected union officers. The plaintiff in Lynn

was an elected business representative who was removed

from his position after opposing a measure advocated by the

local’s leadership. See id. at 349–50. He brought suit under

§ 102, alleging that his removal violated the free speech

protections of § 101(a)(2). See id. at 350. The Court

distinguished Finnegan, reasoning that, in light of the

LMRDA’s democratic governance goals, the retaliatory

removal of an elected officer presents significantly greater

concerns than does the removal of an appointed official. See

id. at 353–55. The Court expressly noted, however, that its

holding was limited to § 102, as it was not presented with a

claim under § 609. See id. at 353 n.5.

After Finnegan and Lynn, it is established that an

appointed union officer may not bring suit under either § 102

or § 609 for retaliation suffered in his official capacity, but an

elected officer can bring suit under § 102 when faced with

such retaliation. The question presented here, which no Court
USW LOCAL 12-369 V. USW INT’L 21

of Appeals has addressed since Finnegan and Lynn, is

whether an elected officer can also maintain an action under

§ 609.

Although Finnegan and Lynn are admittedly in some

tension, they can be reconciled for purposes of the present

inquiry. Finnegan’s discussion of § 609 was in absolute

terms that did not admit of a distinction between appointed

and elected officers. The Court emphasized multiple times

that the term “discipline” as used in § 609 only encompasses

actions that affect an individual’s status as a member of a

union, not as an employee. See Finnegan, 456 U.S. at

437–38. In contrast, the Court’s discussion of § 102 was

predicated almost entirely on the appointed nature of the

officers in question, with the Court even acknowledging that

other circumstances could exist in which union officers could

maintain suit under § 102, if not § 609. See id. at 440–42. In

Lynn, the Court can be viewed as delineating such

circumstances. Indeed, the Lynn Court employed language

suggesting that it is Title I rights – which are the exclusive

focus of § 102, but not § 609 – that present unique concerns

when dealing with elected versus appointed officers. See

Lynn, 488 U.S. at 355 (“[T]he potential chilling effect on

Title I free speech rights is more pronounced when elected

officials are discharged. Not only is the fired official likely

to be chilled in the exercise of his own free speech rights, but

so are the members who voted for him.”).

Even if doubts lingered as to the proper synthesis of

Finnegan and Lynn, the question at hand can be resolved

under basic principles of statutory interpretation. Congress

employed language nearly identical to that in § 609 in

§ 101(a)(5) of Title I, which affords due process protections

against disciplinary action. That section provides, “No
22 USW LOCAL 12-369 V. USW INT’L

member of any labor organization may be fined, suspended,

expelled, or otherwise disciplined . . . unless such member

has been (A) served with written specific charges; (B) given

a reasonable time to prepare his defense; (C) afforded a full

and fair hearing.” 29 U.S.C. § 411(a)(5) (emphasis added). 

The Court has held that the phrase “otherwise discipline[d]”

carries the same meaning across § 101(a)(5) and § 609. See

Breininger v. Sheet Metal Workers Int’l Ass’n Local Union

No. 6, 493 U.S. 67, 90 n.13 (1989); Finnegan, 456 U.S. at

438 & n.9.

The Conference Report accompanying the final passage

of the LMRDA clarified that the “prohibition [in § 101(a)(5)]

on suspension without observing certain safeguards applies

only to suspension of membership in the union; it does not

refer to suspension of a member’s status as an officer of the

union.” H.R. Rep. No. 86-1147, at 31 (1959) (Conf. Rep.)

(emphasis added). Thus, it is evident that Congress did not

intend for § 101(a)(5) to protect against disciplinary actions

that impinge on the incidents of union employment,

regardless of appointed versus elected status. And because

the operative language of § 609 is to be accorded the same

meaning, Breininger, 493 U.S. at 90 n.13, it follows that

§ 609 likewise does not apply to actions directed against

union officers in their official capacities.5

5 The Supreme Court endorsed this analysis in Finnegan. See 456 U.S.

at 438 & n.9. It is in part for this reason that we are not bound by our

previous decisions in Grand Lodge of International Ass’n of Machinists

v. King, 335 F.2d 340 (9th Cir. 1964), and Cooke v. Orange Belt District

Council of Painters No. 48, 529 F.2d 815 (9th Cir. 1976). In Grand

Lodge, we extended the protections of § 609 to appointed union officers. 

See 335 F.2d at 344–46. We noted the parallel language, and clear

legislative history, of § 101(a)(5), but we concluded that differential

treatment was warranted for this provision and § 609. See id. at 341–46. 
USW LOCAL 12-369 V. USW INT’L 23

Because the alleged retaliatory actions directed toward

Green impinged only upon her status as a union officer, she

may not seek redress for these actions under § 609. 

Accordingly, we affirm the district court’s dismissal of

Green’s § 609 claims.

B. Judgment on Remaining Claims Entered at Trial

The district court entered judgment against Green on her

remaining claims following the ten-day bench trial conducted

in November 2009. These claims were brought under

LMRDA §§ 101 and 102, LMRA § 301, 42 U.S.C. § 1981,

Title VII, and the Washington Law Against Discrimination

(“WLAD”). Green challenges the district court’s rulings on

each of these claims.

1. Legal Principles

To state a claim for a violation of LMRDA § 101(a)(2),

a union member must demonstrate that: “(1) he or she

In Cooke, we assumed that Grand Lodge’s § 609 holding applied in the

context of an elected officer (without discussion of a possible distinction

between elected and appointed officers). See 529 F.2d at 818.

In Finnegan, the Court expressly rejected Grand Lodge’s differential

treatment of § 101(a)(5) and § 609, and instead endorsed the inference that

we draw today from § 101(a)(5). See 456 U.S. at 438 & n.9. Thus, not

only did Finnegan overrule Grand Lodge’s holding with respect to

appointed officers specifically, but it also directly “undercut the theory or

reasoning” on which Cooke – through Grand Lodge – rested. Miller v.

Gammie, 335 F.3d 889, 900 (9thCir. 2003) (en banc). Accordingly, to the

extent Grand Lodge and Cooke stand for the proposition that § 609

protects elected union officers in their official capacities, they have been

abrogated by Finnegan and are not controlling. See id. at 899–900. 

Indeed, the parties do not argue to the contrary.
24 USW LOCAL 12-369 V. USW INT’L

exercised the right to oppose union policies; (2) he or she was

subjected to retaliatory action; and (3) the retaliatory action

was a direct result of his or her decision to express

disagreement.” Casumpang v. Int’l Longshoremen’s &

Warehouseman’s Union, Local 142, 269 F.3d 1042, 1058 (9th

Cir. 2001) (internal quotation marks and alteration omitted).

LMRA § 301 provides federal courts jurisdiction to

enforce contracts “‘between an employer and a labor

organization or between . . . labor organizations.’” SEIU v.

Nat’l Union of Healthcare Workers, 598 F.3d 1061, 1069 (9th

Cir. 2010) (quoting 29 U.S.C. § 185(a)) (alteration omitted). 

Green’s claims under this provision proceeded at trial under

the theory that the constitutions of the International and

HAMTC prohibit discrimination on the basis of race and

gender, or alternatively, that officials of the International and

HAMTC interpreted their constitutions in bad faith. Bad faith

in this context can be found “on evidence that union officials

acted contrary to the [union’s] best interest, out of

self-interest, or in an unconscionable or outrageous way.” 

Teamsters Joint Council No. 42 v. Int’l Bhd. of Teamsters,

AFL-CIO, 82 F.3d 303, 306 (9th Cir. 1996).

Under § 703(c)(1) of Title VII of the Civil Rights Act of

1964, it is “an unlawful employment practice for a labor

organization . . . to discriminate against [] any individual

because of his race, color, religion, sex, or national origin.” 

42 U.S.C. § 2000e-2(c)(1). The well-established burdenshifting framework of McDonnell Douglas Corp. v. Green,

411 U.S. 792 (1973), applies to a Title VII action against a

labor union. Beck v. United Food & Commercial Workers

Union, Local 99, 506 F.3d 874, 882 (9th Cir. 2007). Under

this framework, if the plaintiff establishes a prima facie case

of discrimination and the defendant produces evidence of a
USW LOCAL 12-369 V. USW INT’L 25

legitimate, non-discriminatory reason for its actions, “the

plaintiff retains [the] ultimate burden of persuading the trier

of fact that he has been the victim of intentional

discrimination.” Id. at 883 (internal quotation marks and

alterations omitted). The same legal principles that apply to

a Title VII claim apply to a claim of race discrimination

under 42 U.S.C. § 1981. See Manatt v. Bank of Am., NA,

339 F.3d 792, 797 (9th Cir. 2003).

Finally, under the WLAD, “[t]he plaintiff’s ultimate

burden at trial . . . is to present evidence sufficient for a

reasonable trier of fact to conclude that the defendant’s

alleged discriminatory motive was more likely than not a

substantial factor in its adverse employment action.” Fulton

v. Dep’t of Soc. & Health Servs., 279 P.3d 500, 507 (Wash.

Ct. App. 2012) (citing Hill v. BCTI Income Fund-I, 23 P.3d

440, 449 (Wash. 2001)).

2. District Court’s Findings of Fact

As indicated above, Green’s claims at trial all rested on

the notion that Defendants retaliated against her for having

engaged in protected speech or discriminated against her on

account of her race or gender.6 Based on its findings of fact

with respect to the discrete incidents and controversies

(described below), the district court reached a broader finding

6 The one arguable exception is Green’s claim under LMRA § 301 that

the International and HAMTC interpreted their constitutions in bad faith. 

It appears, however, that any notion of bad faith would be based on the

theory that the International and HAMTC were actually motivated by

retaliatory or discriminatory animus. Regardless, the district court’s

factual determination that the International and HAMTC had legitimate,

non-discriminatory reasons for their actions also defeats the suggestion

that they acted in bad faith.
26 USW LOCAL 12-369 V. USW INT’L

that Defendants had not engaged in unlawful retaliation or

discrimination. To prevail on appeal, Green must

demonstrate that this ultimate factual determination was

clearly erroneous. See Anderson, 470 U.S. at 566; Beck,

506 F.3d at 882.

This would be a tall order in any context, but it is a

particularlydifficult task here. The experienced district judge

presided over a ten-day bench trial in a case with an

extraordinarily complex and lengthy history. The thrust of

the district court’s analysis was that, rather than reflecting

discriminatory or retaliatoryanimus, the actions taken against

Green were attributable to the competing interests of rival

factions within the Local, or the need to alleviate the tension

created thereby. After reviewing the record and the district

court’s analysis of the specific incidents underlying Green’s

claims, we are unable to conclude that this determination was

“illogical, implausible, or without support in inferences that

may be drawn from the facts in the record.” Hinkson,

585 F.3d at 1263. We emphasize that this would be a

difficult question if presented de novo, but under the

deferential standard of review that governs, “the district

court’s account of the evidence is plausible in light of the

record viewed in its entirety.” See Anderson, 470 U.S. at

573–74.

Below we consider the district court’s findings on those

allegations most important to its ultimate finding of fact.

a. Steward Election in 2005

The district court found that there were legitimate reasons

for the attempted restriction of Green’s position as steward. 

However, we need not consider the district court’s precise
USW LOCAL 12-369 V. USW INT’L 27

findings on this issue. All of the actors involved in the

steward dispute were affiliated with the Local, and Green

presents no facts establishing that the International

“instigated, supported, ratified or encouraged the Local’s

activities or that the Local acted pursuant to its agreement

with the International.” Moore v. Local Union 569 of IBEW,

989 F.2d 1534, 1543 (9th Cir. 1993). The International was

not even affiliated with the Local for the majority of the

period at issue; the steward controversy began in January

2005 and was resolved in May 2005, while the International

only merged with PACE in April 2005. Because Green is

unable to connect the International (or HAMTC) to the

steward allegations, the allegations cannot support a finding

of liability.

7

 See id.

b. Decertification of Spokane Units

The district court found no impropriety in the

International’s actions relating to the decertification of two

units of the Spokane branch. Rather, the district court

concluded that Green had been excluded from the meetings

concerning the decertification efforts “because it was

perceived that her Presidency was part of the reason for the

desire to disassociate with the Local and perhaps the

International.”

There is ample evidence to support the district court’s

findings on this issue. As noted by the district court, Green

was made aware at her first Executive Board meeting that her

proposed changes to union governance – particularly her plan

7 The same holds true with respect to the racially charged comment

made by Karen Alexander – a member of the Local’s Executive Board –

following Green’s election as President.
28 USW LOCAL 12-369 V. USW INT’L

to subject actions by the Executive Board to a vote at the

monthly membership meetings in Richland – could lead to

the Spokane units leaving the Local. Green’s response was

only, “OK.” Green therefore cannot dispute that the members

of the Spokane branch had a genuine desire to decertify from

the Local that was based, at least in part, on her actions. 

Given such, it was reasonable for the district court to

conclude that the International was acting to alleviate discord

within the Local and prevent the units from leaving the

International altogether.

c. Signature Authority

This is the central allegation that involves HAMTC and

Molnaa. The district court concluded that Molnaa did not

have improper motives in declining to recognize Green’s

signature authority. In reaching this conclusion, the district

court made two separate, but related findings: (1) Molnaa

had a reasonable policy of only recognizing the signature

authority of staff representatives; and (2) Molnaa did not

want to deviate from this policy because to do so would

embroil him in the ongoing dispute over the balance of power

between Green and the Executive Board.

There is sufficient evidence to support these findings. It

is undisputed that the prior presidents whose signature

authority had been recognized were staff representatives,

while the only other president who was not a staff

representative did not have signature authority. Moreover,

Molnaa recognized Green’s signature authority immediately

upon being requested to do so by the International. In this

regard, Molnaa testified:
USW LOCAL 12-369 V. USW INT’L 29

I had no idea of the authority of the president

of that local. However, my experience has

shown me that, you know, you’ve got a local

level, and you work your way up to district,

internationals, that the international is the

parent organization. Their bylaws are based

off their constitution, and they have [a] certain

amount of authority, and I recognize that. 

And Mr. Stroops was an International

representative, and if that resolved the

problem, I would accept that from him.

This testimony supports the inference that Molnaa had

initially declined to deviate from his standard practice

because he did not want to become involved in the intraLocal dispute over Green’s authority. By following the

request of the International, Molnaa could continue to be seen

as not taking sides in the feud.

d. Maki Commission and Imposition of

Administratorship

Like the district court, we consider the change to the Maki

report in August 2007 and the resulting imposition of an

administratorship to be the most troubling of the events in

question. In Maki’s initial report, issued on May 24, 2007,

Maki found that the charges against Green were baseless. Yet

less than three months later, Maki amended the report to

recommend that an administratorship be imposed and that

Green be removed from office.

This reversal is of concern for several reasons. As a

matter of process, Maki conceded that he had not provided

Green an opportunity to respond to the new allegations and
30 USW LOCAL 12-369 V. USW INT’L

had just assumed they were true. Substantively, one of the

primary allegations relied upon by Maki – that the Local was

not defending itself against Green’s 2007 EEOC charge – was

largely not accurate. As Bonds conceded in his testimony,

the Local had in fact been defended against the EEOC charge

because the Gilbert & Sackman firm had submitted a

response on behalf of both the International and the Local. 

The Local’s decision was only not to authorize funds to pay

for this representation.

After indicating that it had “carefullyconsidered the Maki

testimony explaining his changes and the testimony of

Bonds,” the district court found that the written reasons in the

second Maki report (and Bonds’ letter) were sufficient to

justify the administratorship, and that the other problems

made known to the International but not referenced in the

written explanations bolstered the decision. The district court

found that the administratorship had been imposed because

the turmoil within the Local had simply reached a breaking

point, such that action needed to be taken in the interests of

the Local’s members.

Despite the irregularities in the events leading to the

administratorship, the district court’s finding is a reasonable

inference to be drawn from the record. Putting aside whether

the Local defended itself against the EEOC complaint,

Maki’s second report and Bonds’ letter also explained that

Green had terminated two full-time employees, another

employee had resigned, and members of the Local’s

committees were being removed without the approval of the

Executive Board. This was uncontroverted evidence that the

union was in a state of disarray.
USW LOCAL 12-369 V. USW INT’L 31

More importantly,Bonds provided credible testimonythat

supported the district court’s explanation. Bonds testified:

[T]here [was] such . . . turmoil going on in

that local with a great portion of the executive

board being opposed to them and constantly

stirring up problems that it was causing the

Local not to be able to operate.

And like Isaid, the only mechanism I have for

changing things is the administratorship. I

cannot come in there and take Margie Myers

and remove her from a trustee, no more than

I can go and take Stephanie Green and remove

her as president of the Local. What I can do

is appoint an administrator that can go look at

the facts and try to change things and try to

bring both sides together, possibly reappoint

the same officers. You know, I – this was not

anything more than me trying to figure out a

way to fix how this local was operating. And

it was not all [Green] and Dave Roberts’s

fault. It was everybody’s fault.

Bonds later added that one of the reasons he had

recommended the administratorship was that he continued to

receive petitions from outlying branches seeking to decertify

from the Local, just as the Spokane units had.

Given the history of events, it was permissible for the

district court to credit this testimony. The record is replete

with constant infighting between the competing factions

within the Local, with this tension only escalating over time. 

The district court reasonably concluded that it was the
32 USW LOCAL 12-369 V. USW INT’L

complications created by this tension, particularly the threat

of additional units decertifying, that led that the International

to determine that a change in leadership was necessary. The

district court’s assessment is strengthened by the fact the

International had actually supported Green in various ways

since her election as President. For instance, the International

had overturned the decision to rerun the election (ordering

that Green be seated) and had requested that HAMTC

recognize Green’s signature authority. Thus, there is no

evidence that, prior to the administratorship, the International

engaged in a pattern of discrimination or retaliation directed

at Green.

Accordingly, the district court did not commit clear error

in assessing the reasons for the imposition of the

administratorship, which is the primary basis for Green’s

claims against the International.

e. Kins Commission

The final event that must be considered is the

appointment of the Kins Commission in October 2007. 

Green emphasizes the e-mail sent by Margie Myers to Gerard

and Bonds prior to the decision to appoint the commission, in

which Myers wrote, “If you get in here now, you might

possibly save this local and yourselves $50K that she is trying

to get to her attorney to fight you!” Gerard wrote to Bonds in

response, “I think we need to move qui[c]ker . . . have we

done an audit . . . what are we doing.”

The district court determined that the Kins Commission

was not instituted for improper reasons. Again, there is

sufficient evidence to support this finding. Green contends

that the inference to be drawn from the Myers e-mail is that
USW LOCAL 12-369 V. USW INT’L 33

the International was motived by a desire to suppress her

speech, but a competing inference is that the e-mail merely

reinforced the dysfunctional nature of the Local, which had

previously led to the administratorship being imposed in

August 2007. Indeed, the problems within the Local had

persisted since the administratorship was dissolved by the

district court on procedural grounds. As described in Bonds’

letter to Gerard recommending appointment of the Kins

Commission, Green had conducted a special meeting with

insufficient notice, members from outlying branches

continued to complain about their exclusion from the

democratic processes of the Local, and HAMTC had begun

to discuss the possibility of expelling the Local. If the

turmoil within the Local was the cause of the August 2007

administratorship, given the subsequent events, the same

motivation almost surely drove the decision to convene

another commission. The district court’s findings of fact on

this issue are not clearly erroneous.

3. Summary

Given the district court’s analysis of Green’s allegations,

both as discrete incidents and as part of a broader course of

conduct, we hold that it did not clearly err in finding that

Defendants did not discriminate or retaliate against Green. 

Accordingly, we affirm the district court’s judgment entered

at trial.

IV. CONCLUSION

For the reasons stated above, the judgment of the district

court is AFFIRMED.