The opinion of the court was delivered by: GREENE
Plaintiffs, a labor organization and two non-profit labor groups, brought this action under Title II of the Labor-Management Reporting and Disclosure Act of 1959 (LMRDA), 29 U.S.C. §§ 401 et seq., and the Administrative Procedure Act, 5 U.S.C. §§ 701 et seq., challenging the decision of the Secretary of Labor (Secretary) not to bring a civil suit against Kawasaki and their attorney-consultants John Tate and Charles Sykes, for their alleged failure to comply with the reporting and disclosure provisions of section 203 of the LMRDA, 29 U.S.C. § 433. Plaintiffs' original complaint sought mandamus against the Secretary to compel him to enforce the employer and persuader reporting and disclosure provisions of the LMRDA against Kawasaki, Tate, Sykes, and the law firm of Tate, Bruckner and Sykes. In their proposed amended complaint, plaintiffs expand their claim by alleging that the Secretary has engaged in a "pattern and practice" of failing to enforce the reporting provisions of Section 203 against the same attorney-consultants. They further allege that the Secretary's refusal to enforce section 203 against the employer and the attorney-consultants in this case is part of a broader pattern and practice by the Secretary of abrogating his enforcement responsibilities under Title II of the Act. The Secretary has filed the instant motion for dismissal or for summary judgment on the grounds that plaintiffs lack standing to sue and that the LMRDA imposes no enforceable duty upon him. For the reasons stated below, the motion will be granted.
Congress enacted the LMRDA in 1959 to protect the rights and interests of individual employees and the general public from illegal and improper practices on the part of both labor and management and to assure that "labor organizations, employers, and their officials adhere to the highest standards of responsibility and ethical conduct in administering the affairs of their organizations." 29 U.S.C. § 401. Section 203 of the statute imposes a legal duty on employers and their labor relations consultants to disclose their persuader and information-gathering activities.
Employers must report to the Secretary all agreements or arrangements with labor relations consultants and all expenditures where one of the objects is to persuade employees in the exercise of their organization or collective bargaining rights, or to obtain information concerning an employee's or labor organization's activities. 29 U.S.C. § 433(a). The Act also imposes a reporting requirement upon persons who, by agreement or arrangement with an employer, engage in activities aimed at persuading employees in the exercise of their organizing or collective bargaining rights or who supply information to an employer concerning the activities of employees in connection with a labor dispute. 29 U.S.C. § 433(b).
The Secretary of Labor is charged with enforcing the reporting and disclosure provisions of the LMRDA. 29 U.S.C. § 440 provides that:
Whenever it shall appear that any person has violated or is about to violate any of the provisions of this subchapter, the Secretary may bring a civil action for such relief (including injunctions) as may be appropriate. . . .
There is no private cause of action under section 203. Rather, only the Secretary may bring a civil action to enforce the reporting and disclosure provisions of the LMRDA. International Union, UAW v. National Right to Work Legal Defense and Education Foundation, Inc., 590 F.2d 1139, 1155 (D.C. Cir. 1978).
The material facts of this case are not in dispute. In March 1983, the UAW filed an administrative complaint with the Secretary alleging that Kawasaki and its attorney-consultants Tate and Sykes had engaged in conduct at Kawasaki's Lincoln, Nebraska plant which the UAW believed constituted reportable activity under sections 203(a) and (b). By letter dated March 29, 1982, the Department's Director of Labor-Management Standards Enforcement informed the UAW that it had conducted an investigation of the alleged reportable activities but determined that reports were not required. Pursuant to a request under the Freedom of Information Act, 5 U.S.C. § 552, the UAW obtained a copy of the Department of Labor investigative report in which the investigator concluded that the attorney-consultants had not engaged in any reportable conduct, but that Kawasaki had engaged in seven instances of such conduct. The report also disclosed that the Department of Labor had requested Kawasaki to file the required report but that Kawasaki had refused.
With this information, the UAW asked the Director on April 19, 1982 to reconsider his decision that reports were not required. The Director, in a letter dated April 26, 1983, responded that
the evidence disclosed during the course of our investigation was not substantial enough to warrant further action.
He further advised plaintiffs that the case files on Kawasaki and the firm of Tate, Bruckner and Sykes were closed but that the UAW could present additional information to the regional office and, if that office deemed it appropriate, the cases might be reopened. On June 16, 1982, the UAW filed a formal petition with the Secretary, again requesting that he take enforcement action in this matter, and it requested a reply within 21 days. The Secretary did not respond within the three week period
and plaintiffs filed the instant action on September 8, 1982.
The Secretary filed the instant motion to dismiss or for summary judgment arguing first, that the Workers Defense League and Center to Protect Workers' Rights, two non-profit associations, entirely lack standing to maintain this action and that the UAW lacks standing with respect to counts two and three of the proposed amended complaint; and second, that the Secretary's enforcement authority under Title II of the LMRDA is committed to agency discretion by ...