Labor & Employment Law Daily Wrap Up, LABOR—UNIONS, UNION MEMBERS—D.C. Cir.: Union candidate loses bid for new trial concerning alleged retaliation for protected speech, (Aug 20, 2025)

By Ronald Miller, J.D.

The appeals court rejected the employee’s call for a “motivating factor” test and held that but-for causation is the correct standard for a retaliation claim under Section 101(a)(2) of LMRDA.

A union member who alleged his union twice removed him from his position as National Secretary-Treasurer in retaliation for his protected speech failed in his bid for a new trial after a jury found that the union violated his rights when it removed him the first time, but not the second, ruled the D.C. Circuit. On appeal, the employee argued that the district court erred in its jury instruction applying but-for causation to the union’s actions. The appeals court observed that nothing in the text or structure of the Section 101(a)(2) of the LMRA suggests a departure from the default standard of but-for causation or adopts a motivating factor standard of causation. Thus, the appeals court determined that there was no error in the district court’s instruction to apply but-for causation (Hudson v. American Federation of Government Employees, No. 24-7077 (D.C. Cir. Aug. 19, 2025)).

Union politics. The employee, a union member for over 40 years, has been involved in union politics for decades. He rose through the ranks of the union leadership and was elected National Secretary-Treasurer in 2012. In 2016, he announced his campaign for union president.

In announcing his bid for president in August 2016, the employee sent a letter to local union officers criticizing the union’s use of resources. He used a set of union-provided mailing labels to disseminate the letter. In October, he used a second set of labels that he purchased from the union to send the same officers a postcard in which he repeated his concerns about the misuse of union funds and promised to “set out a plan to correct” such abuse. After Donald Trump was elected President in November 2016, the employee sent a letter to local presidents and treasurers expressing concerns about what the new administration would mean for the union.

Removal from union position. These communications spawned internal disciplinary proceedings. In December 2016, charges were filed against the employee, alleging the communications violated several provisions of the union’s constitution. The union found the November email violated the union’s constitutional prohibition on the use of union resources to promote a candidate for office. In August 2017, the employee was removed from his position as Secretary-Treasurer.

Thereafter, the employee filed this suit. The district court granted a preliminary injunction ordering the employee’s reinstatement to his union office.

While the preliminary injunction was in place, the union again investigated the employee and found reason to believe the employee had violated union rules by using union resources to send the November email and the August letter. In February 2018, the union found the employee violated union rules and again suspended him from office. The employee amended his complaint in response to his second removal.

Retaliation claim. The employee alleged his removals from the Secretary-Treasurer position in August 2017 and February 2018 were unlawful. He claimed these removals constituted retaliation for his exercise of protected speech in violation of Section 101(a)(2) of the LMRDA. At trial, the parties focused on the union’s motivation in removing the employee. While the employee alleged the union removed him in retaliation for exposing financial misconduct, the union maintained it removed him because he violated the union constitution by using union resources to send the November email in support of his personal campaign for union president.

A jury found that the union violated the LMRDA when it removed the employee in August 2017, but not in February 2018. The employee argued the jury instructions incorrectly described the causation requirement under LMRDA and misstated the burden of proof regarding the union’s potential defense. The district court denied the employee’s motion for a new trial. The employee appealed.

Causation standard. On appeal, the employee argued that the but-for causation standard in the jury instructions was erroneous. He contended that LMRDA Section 101(a)(2) requires a plaintiff to show only that his protected conduct was a “substantial” or “motivating” factor in a union’s decision to take an adverse action, not its but-for cause.

Jury instruction claim. Because the employee failed to properly object below, the D.C. Circuit’s reviewed his challenge to the jury instructions for plain error. Rule 51 requires parties to object to jury instructions by doing so “on the record, stating distinctly the matter objected to and the grounds for the objection.” Objections that are not preserved may be reviewed for plain error. Despite having requested the jury be instructed to apply a “motivating factor” causation standard, the employee failed to object to the court’s proposed final instructions. Merely requesting instructions that differ from the final instructions is insufficient to preserve an objection.

To prevail on his jury instruction claim, the employee had to show (1) there is an error; (2) that is plain; (3) that affects substantial rights; and (4) that “seriously affect[s] the fairness, integrity, or public reputation of judicial proceedings.”

But-for causation. The appeals court determined that there was no error in the district court’s instruction to apply but-for causation. It rejected the employee’s call for a “motivating factor” test and held that but-for causation is the correct standard for a retaliation claim under Section 101(a)(2) of the LMRDA.

Protected speech. Section 101(a)(2) protects union members’ rights to speech and assembly. “To establish a prima facie free speech claim under Section 101(a)(2), a plaintiff must show that (1) she engaged in speech protected by LMRDA; (2) she was subject to an adverse action; and (3) that action is causally linked to the protected speech.” In this action, the D.C. Circuit clarified that plaintiff must show a but-for causal link between his protected speech and a union’s adverse action.

Default standard. Nothing in the text of Section 101(a)(2), the appeals court found, displaces the default rule of but-for causation or adopts a motivating factor standard of causation. It provides only that “[e]very member” of a union “shall have the right to meet and assemble freely with other members; and to express any views, arguments, or opinions.” The statute’s cause of action provision permits suit by “[a]ny person whose rights” under the LMRDA “have been infringed.” Reading these provisions together suggested to the court the ordinary rule that the exercise of speech rights must be the but-for cause of the union’s adverse action.

Moreover, reading Section 101(a)(2) to require but-for causation is consistent with the Supreme Court’s decision in Sheet Metal Workers’ International Association v. Lynn, 488 U.S. 347, 354 (1989). Finally, a but-for causation requirement, the D.C. Circuit found, was harmonious with analogous First Amendment law.

Accordingly, the appeals court affirmed the judgment of the district court.

The case is No. 24-7077.

Judge: Rao, N.

Attorneys: Harold C. Bone II (Elizabeth Clark Bone) for Eugene Hudson, Jr. Elisabeth Oppenheimer (Bredhoff & Kaiser) for American Federation of Government Employees.

Companies: American Federation of Government Employees

Cases: Labor UnionsMembers Retaliation IndividualRights Procedure DistrictofColumbiaNews