Appeal from the United States District Court for the District of Columbia. (No. 1:07-cv-00600).
The opinion of the court was delivered by: Karen Lecraft Henderson, Circuit Judge
Before: HENDERSON, BROWN and KAVANAUGH, Circuit Judges.
Opinion for the Court filed by Circuit Judge HENDERSON.
The International Union of Operating Engineers (Union) adopted a Resolution requiring all candidates for local union offices and their supporters to include a password protection function on their campaign websites limiting access to Union members. Michael Quigley, together with four other Union members (collectively Quigley), brought an action in district court seeking a permanent injunction prohibiting the Union from enforcing the Resolution under section 101(a)(2) of the Labor-Management Reporting and Disclosure Act (LMRDA), 29 U.S.C. § 411(a)(2). On cross-motions for summary judgment, the district court granted summary judgment in favor of the Union. Qui[g]ley v. Giblin, 582 F. Supp. 2d 1, 14 (D.D.C. 2008). For the reasons set forth below, we affirm.
The Union is an international labor organization that represents primarily operating engineers who work as heavy equipment operators, mechanics and surveyors in the construction industry and stationary engineers who work in operations and maintenance. It has approximately 396,000 members and 138 chartered and autonomous local unions in Canada and the United States. The local unions range in size from 14 members to over 40,000 members. Elections for local union office are held in August and nominations are made no earlier than the May before the election.
In January 2007, the General Executive Board*fn1 adopted the Campaign Website Resolution, which provides in part:
NOW THEREFORE BE IT RESOLVED THAT the General Executive Board, in order to assure the fullest expression of free speech by candidates in Local Union elections while protecting the Local Unions from adverse actions by employers, directs that, starting with Local Union elections to be held in 2007, Local Unions and their election committees shall require all candidates and their supporters who have set up or wish to set up campaign websites to include a password protection function; and
BE IT FURTHER RESOLVED THAT the International Union shall work with the Local Unions and their election committees to establish appropriate password protection mechanisms using members' register numbers or another appropriate mechanism to identify membership status.
Campaign Website Resolution at 1 (adopted Jan. 2007) (Resolution) (Joint Appendix (JA) 295). In the prefatory portion, the Resolution explained that campaign websites "allow non-members, including employers, access to frequently sensitive information about the Local Unions" and that "there have been instances where employers have misused information obtained from candidates' websites to the detriment of . . . Local Unions in organizing campaigns and contract negotiations." Id. In a letter dated February 12, 2007 and sent to all local union business managers, the Union General President stated that the Resolution "will not in any way limit the content of what is said on such websites" but "will merely attempt to assure that sensitive information concerning Local Union affairs is shared among members, and is not available to employers and others with interests contrary to those of the Local Unions." Letter from Vincent J. Giblin, Union General President, to All Local Union Business Managers at 2 (filed May 12, 2007) (JA 297). The Resolution applies to incumbents running for re-election as well as challengers. Oral Argument at 26:04, Quigley v. Giblin, No. 08-7056 (argued May 4, 2009) (Union counsel: "[The Resolution] absolutely applies to incumbents."). Although official local union websites were not expressly covered by the Resolution, the Giblin letter directed local unions to review their websites to ensure that sensitive information was password protected. Letter from Vincent J. Giblin at 2 (JA 297). The letter announced that the Resolution would become effective on April 15, 2007. Id. On March 29, 2007, the appellants filed their complaint in the district court seeking declaratory and injunctive relief. Compl. at 11, Qui[g]ley v. Giblin, 582 F. Supp. 2d 1 (D.D.C. Mar. 29, 2007) (No. 07-cv-600) (Compl.). On April 2, 2007, the General Executive Board changed the Resolution's effective date to July 1, 2007.
Shortly thereafter, the General Executive Board adopted guidelines to implement the Resolution. Letter from Vincent J. Giblin, Union General President, to All Local Union Business Managers, Attachment (filed May 12, 2007) (Guidelines) (JA 301). The Guidelines stated that for the upcoming elections, the Union planned to retain an independent information technology consulting firm to assist Union members in implementing the Resolution. Id. The Guidelines authorized the consulting firm to waive compliance with the Resolution if it determined, "based on its technical expertise and in its sole discretion," that compliance "would require a significant expenditure of money or significant delay." Id. They also stated that a Union member could request an opinion from the Union General President as to whether the Resolution applied to a particular website. Giblin opined at his deposition that a campaign website home page did not need to be password protected if it was "announcing the candidacy, a picture, a list of potential candidates" or if it contained a "short biography" of the candidate and "his running mates" but that other web pages on the site would require protection. Tr. of Dep. of Vincent J. Giblin at 45, 53 (filed May 28, 2007) (Giblin Dep. Tr.) (JA 323, 325a).
According to the Union's expert witness, the Union intended to use a remote authentication password protection system. Decl. of Joanna M. Pineda at 2 ¶ 9 (filed May 12, 2007) (Pineda Decl.) (JA 190). Under this system, the person setting up a campaign website includes "a few lines of programming," referred to as "script," in each web page to be password protected. Id. at 3 ¶ 11 (JA 191). If a Union member attempts to view a password protected web page, he is directed to a third-party website and prompted to enter his name and Union membership number as they appear on his Union card. The authentication page contains a disclaimer that the third party "will not log any identifying information (register number or name) about [Union] members seeking access to any particular campaign Web site, or the IP address (and any other information that might indicate the geographic location) of any member seeking to access any particular web site." Ex. E to Affidavit of Paul Alan Levy at 1 (filed May 28, 2007) (JA 446). The third party will verify the Union member's information against a list of Union members' names and membership numbers supplied by the Union. If the information is correct, the Union member will be "automatically redirected back to the original website." Pineda Decl. at 2 ¶ 9 (JA 190).
Quigley's complaint sought a permanent injunction ordering the Union to revoke the Resolution and to refrain from enforcing it and a declaratory judgment voiding the Resolution. Compl. at 11. In May 2007, both parties filed motions for summary judgment. The district court granted summary judgment in favor of the Union. ...