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Hilda L. Solis, Secretary of Labor, United States Department of Labor v. Local 234

August 15, 2011

HILDA L. SOLIS, SECRETARY OF LABOR, UNITED STATES DEPARTMENT OF LABOR,
v.
LOCAL 234, TRANSPORT WORKERS UNION.



The opinion of the court was delivered by: Legrome D. Davis, J.

MEMORANDUM

I. BACKGROUND

This matter is before the Court on the Secretary of Labor's motion requesting that we declare the victorious candidates from the Local 234, Transport Workers Union ("Local 234") election held on September 24, 2010 as the duly-elected officers and at-large executive board members of Local 234. A previous election for the same positions was held on September 28, 2007. On April 25, 2008, the United States Secretary of Labor filed a Complaint pursuant to Title IV of the Labor-Management Reporting and Disclosures Act of 1959, as amended, 29 U.S.C. §§ 401, et seq. (LMRDA or "Act"), seeking an order to void the September 28, 2007 election and to hold a new election under her supervision. On July 16, 2010, the Secretary and Local 234 agreed to have the Secretary supervise its next regularly-scheduled election pursuant to Section 402(c) of the LMRDA, 29 U.S.C. § 482(c). On July 19, 2010, this Court entered an Order approving the parties' agreement by Consent Decree. Events of the supervised election held in accordance with that Consent Decree give rise to the current dispute.

The candidates in the supervised election were aligned on two slates. One slate was headed by incumbent officers Willie Brown, for President, and Brian Pollitt, for Executive Vice President. This slate was named the "Unity Team." The other slate-the insurgent slate-was headed by John Johnson, and was named the "New Direction Team." The election was completed on September 24, 2010 with members of the New Direction team winning each open position. In the race for President, Johnson beat incumbent Brown by a margin of 1915 votes to 1672. Andre Jones beat incumbent Pollitt for Executive Vice President 1870 votes to 1659. Each of the other 12 positions was claimed by members of the New Direction team in similar margins of victory.

After the conclusion of the election, the heads of the Unity Team, Brown and Pollitt, filed a protest with the Secretary, arguing numerous violations of the LMRDA, and seeking a third election. On January 28, 2011, the Secretary filed a motion requesting that we enter a final decree pursuant to Section 402(c) that the victorious candidates from the supervised election completed on September 24, 2010 are the duly-elected officers of Local 234. In support of her motion, the Secretary has submitted the certification of Patricia Fox, the Chief of the Division of Enforcement of the United States Department of Labor's ("Department") Office of Labor Management Standards, and a supporting declaration by Ms. Fox ("Fox Declaration"), which sets forth the Department's responses to Brown and Pollitt's initial protest to the supervised election. The Fox Declaration asserts that the Department investigated the allegations contained in the protest, concluded that the election complied with Title IV of the Act, 28 U.S.C. § 481 et seq., and that it was conducted, insofar as lawful and practicable, in accordance with Local 234's Constitution, the Transport Workers Association of America Constitution and Bylaws, and the Act. Therefore, according to the motion, no reason exists to overturn the results of the supervised election, and, as such, 29 U.S.C § 482(c)(2) requires that, upon the certification, we shall enter an Order declaring the victorious officers as duly elected.

Willie Brown and Brian Pollitt (hereinafter "Intervenors" or "Brown and Pollitt") follow-up on their initial protest by intervening and filing a cross-motion opposing the entry of final judgment in this matter. Brown and Pollitt raise four main arguments in support of their motion. First, they assert that the Secretary found that the New Direction team violated the Election Rules by the unlawful use of the International Union logo on their campaign materials. This, Brown and Pollit argue, constitutes a Title IV violation under the Act, which in itself suffices to establish that the violation "may have affected" the outcome of the election, hence, requiring a rerun. Brown and Pollitt also argue here that the Secretary ignored convincing evidence that the use of the International logo "may have affected" the outcome of the election. Second, Brown and Pollitt allege that the Secretary misapplied a fundamental eligibility requirement in union elections-one set forth in the Election Rules and the Transport Workers Union (TWU) Constitution-that a candidate must be a member in continuous good standing for the twelve month period preceding his or her nomination. Brown and Pollitt argue that the Secretary's waiver of this rule without reopening nominations to the entire union membership deprived the Unity Team of the support of candidates who could have run with their slate had the waiver been properly applied. Third, Brown and Pollitt allege that the Secretary denied the Unity Team the right to access Local 234's telephone list to communicate with the electorate via "robocalls" at a critical stage of the campaign, in violation of Section 401(c), 29 U.S.C. § 481(c), and Title I, 29 U.S.C. §§ 411 et seq., of the Act. Finally, Brown and Pollitt allege that the New Direction team violated Section 401(g), 29 U.S.C. § 481(g), of the Act when they received employer financial assistance that enabled them to place more campaign workers in the field on election day at one of the biggest polling locations.

The Secretary filed a motion for summary judgment, responding to the issues raised in Brown and Pollitt's motion, and providing argument to supplement the findings set out in her declaration. Local 234 also filed a brief in response to Brown and Pollitt's motion. The motions are now ripe for disposition.

II. STANDARD OF LAW

In challenging the Secretary's decision to certify the election results, Brown and Pollitt face the heavy burden of demonstrating "whether the Secretary's action was arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law-in this case the legal requirements of § 402 of the [LMRDA]." Hodgson v. Carpenters Resilient Flooring, Local Union No. 2212, 457 F.2d 1364, 1370 (3d Cir. 1972). As the Supreme Court has prescribed, a decision is deemed arbitrary or capricious when the decision maker failed "to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise." Motor Vehicle Mfrs. Ass'n of U.S., Inc., v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983).

Although the parties agree that the Secretary's determination is reviewed by the district court under this familiar "arbitrary and capricious" standard of the Administrative Procedures Act (APA) (see Intervenors' Mot. at 4), the parties disagree as to the proper scope of that review. Brown and Pollitt argue that they have a right to challenge the both the legal and factual bases of the Secretary's decision to certify the election supervised by the Secretary. If there are disputed material facts, Brown and Pollitt state, we must hold a hearing to create an evidentiary record for our consideration of the Secretary's decision. The Secretary argues that we should confine the scope of our review to the Secretary's stated reasons for her decision; Brown and Pollitt are not entitled to "the full trappings of an adversary trial of their challenge to the factual basis for" that decision. (Pl.'s Mot. Summ. J., Doc. No 44 at 4 (quoting Dunlop v. Bachowski, 421 U.S. 560, 577 (1975)).)

The parties' argument reflects an apparent tension in the appellate case law on the matter. In 1972, in Carpenter's Resilient Flooring, the Third Circuit suggested that, before passing on the Secretary's certification in a supervised election, an evidentiary hearing is required and the summary judgment procedures of Federal Rule of Civil Procedure 56 apply. 457 F.2d at1369-70. Three years later, however, in 1975, the Supreme Court in Bachowski held that complaining parties may not challenge the "factual basis" for the Secretary's conclusion. 421 U.S. at 577. The Court in Bachowski made clear that, in enacting the LMRDA, Congress "decided to utilize the special knowledge and discretion of the Secretary," id. at 568 (internal citation and quotation marks omitted), and "deliberately [gave] exclusive enforcement authority to the Secretary," id. at 569 (internal citation and quotation marks omitted). Ultimately, the Supreme Court in Bachowski held that the district court's review of the Secretary's decision may not extend to cognizance or trial of the complaining member's challenges to the factual bases for the Secretary's conclusion either than no violations occurred or that they did not affect the outcome of the election. The full trappings of adversary trial-type hearings would be defiant of congressional objectives not to permit individuals to block or delay resolution of post-election disputes . . . . If the Court concludes there is a rational and defensible basis stated in the reasons statement for the Secretary's determination, then that should be the end of the matter.

Id. at 573 (internal citation and quotation marks omitted).

Although the Bachowski decision involved the Secretary's decision to certify the results in an unsupervised election, the Court of Appeals for the D.C. Circuit pointed to Bachowksi's broad rationale and found that it applied in the case of both supervised and unsupervised elections-in neither case may the challenger have the opportunity for an evidentiary hearing or additional discovery. Usery v. Local 639, Int'l Bhd. of Teamsters, 543 F.2d 369 (D.C. Cir. 1976) ("Local 639"). "Bachowski," the D.C. Circuit stated, "delineates a scope of review much narrower than applies . . . in most other administrative areas and constrains the very mode of review." Id. at 378 (internal citation and quotation marks omitted). Bachowski's "considerations of special knowledge and discretion are applicable particularly where the election is held under the Secretary's ongoing supervision and control." Id. (internal quotation marks omitted). The court went on to state:

Indeed, because of the Secretary's oversight and familiarity, the rerun, if certified, enjoys a presumption of fairness and regularity. Moreover, the statutory concern with expeditious resolution of post-election disputes is no less present at this stage, indicating the need for a foreshortened review process.

Id. at 378-379 (internal quotation marks omitted). Thus, where the Secretary's statement on its face indicates a rationally based decision the court's task is at an end, unless the challenger makes a specific factual proffer of irregularity, in which event the burden of persuasion shifts to the Secretary to provide ...


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