Brennan v. Solis, Civil Action No. 11–1448(EGS).
| Decision Date | 31 March 2013 |
| Docket Number | Civil Action No. 11–1448(EGS). |
| Parties | Thomas BRENNAN, et al., Plaintiffs, v. Hilda L. SOLIS, Secretary of Labor, Defendant. |
| Court | U.S. District Court — District of Columbia |
OPINION TEXT STARTS HERE
Jonathan Louis Gould, Law Office of Jonathan L. Gould, Washington, DC, Robert R. Cohen, Frankel & Cohen, Chicago, IL, for Plaintiffs.
Benton Gregory Peterson, United States Attorney's Office, Michael Stephen Wolly, Zwerding, Paul, Kahn & Wolly, PC, Washington, DC, for Defendant.
Plaintiffs Thomas Brennan and Charles Rightnowar filed this action against the Secretary of Labor under Section 481 of the Labor Management Reporting and Disclosure Act of 1959 (“LMRDA”), 42 U.S.C. § 1981. In their Complaint, plaintiffs request an Order requiring the Secretary to file suit to set aside the December 15, 2010 officer election in the National Division of the Brotherhood of Locomotive Engineers and Trainmen (BLET) or, in the alternative, for a supplemental Statement of Reasons as to why the Secretary failed to file suit. Upon consideration of the motions, the responses and replies thereto, the applicable law, the administrative record, and for the reasons set forth herein, defendant's motion is GRANTED and plaintiffs' cross-motion is DENIED as moot.
Plaintiffs were unsuccessful candidates for union officer positions in the December 15, 2010 BLET election. Compl. ¶¶ 7–9. Brennan was a candidate for the office of President in BLET's National Division. Id. ¶ 2. Plaintiff Rightnowar was a candidate for the office of Secretary Treasurer of BLET's National Division. Id. ¶ 3. Incumbent President Dennis R. Pierce and incumbent Secretary Treasurer William C. Walpert were among the other opposing candidates in the election, and were re-elected. Id. ¶¶ 9–11. Incumbent officers Pierce and Walpert were part of what was called the “Unity Slate.” Id. ¶¶ 12–13. In addition to Pierce and Walpert, the Unity Slate included several additional candidates, two of whom were running opposed and several who were running unopposed. Id. ¶ 13.
The December 15, 2010 election was the first “rank and file” election for the National Division; previously, positions had been filled through a delegate convention. Id. ¶ 16. Plaintiffs allege that prior to the election, the incumbent officers 1 set up a “Get Out the Vote” drive (“GOTV Drive”). Id. ¶ 19. Plaintiffs allege that the GOTV drive was “allegedly neutral” but “consisted of persons opposed to the use of the rank and file election and in favor of the delegate convention.” Id. ¶ 19. Plaintiffs further allege that after the efforts to change back to a delegate convention were rejected, the GOTV Drive was continued for the upcoming election. Id. ¶ 20.
Plaintiffs allege that although the “official position” of the incumbent officer candidates was that the BLET National Division was sponsoring a neutral effort to increase voter turnout, plaintiffs state that there were several improprieties in connection with the administration of the GOTV Drive. Plaintiffs allege that “[t]wo union officers headed the GOTV Drive and worked on a full time basis throughout the campaign period leading up to the December 15, 2010 period and were possibly paid by two railroad companies.” Compl. ¶ 21. Plaintiffs further allege that the “Unity Slate web site stated that the GOTV [Drive] was an activity of the Unity Slate campaign.” Id. ¶ 23. Specifically, the website, a copy of which is attached to the Complaint as an exhibit, told members that “if they wished to support the Unity Slate, they should become active in the ‘BLET Unity's Slate Get Out the Vote Drive.” Id. ¶ 25. Plaintiffs further allege that BLET officers “were permitted on union time to make phone calls and contact various members—allegedly just to urge them to vote.” Id. ¶ 26. Plaintiffs aver that “no one knows to whom such calls were made, and there is no documentation as to all members who may have received such calls.” Id. ¶ 27.
Prior to the election, plaintiff Rightnowar filed several pre-election protests on behalf of himself and Thomas Brennan.2 In protest number ND–2010–17, filed November 8, 2010, Rightnowar raised several issues with the then-upcoming election. R. 56. Rightnowar asserted
(1) alleged violations of portions of the [LMRDA], the IBT Constitution, BLET By-laws and the BLET Election Rules; (2) the use of Union resources ‘to “construct” a nation-wide canvassing to get out the vote from the persons most likely to vote for the incumbent National Division officers'; (3) request for [National Secretary–Treasurer] Walpert's replacement as ‘Election Officer’ with such appointment to be made/approved by ‘the IRB and President Hoffa’; (4) a ‘complete accounting’ of the alleged misuse of Union resources and; (5) ‘A ballot form that is fair and neutral and not skewed to favor the Unity Slate.
R. 56. The Election Protest Committee determined that Rightnowar did not meet his burden “to provide a preponderance of reliable evidence that any members of the National Division Advisory Board or any members of the Unity Slate are in violation of the Election Rules in any respect.” R. 64. A second pre-election protest, ND–2010–18, filed by letters dated November 15 and 16, 2010, alleged substantially similar violations. R. 65. The Election Protest Committee determined that the second protest was not timely filed and declined to consider it. R. 67–68. The Committee noted that it had considered the identical issues in ND–2010–17. R. 68.
On December 8, 2010, Rightnowar filed an appeal of the Election Protest Committee's decision in ND–2010–17. R. 78. Rightnowar asserted that union funds had been improperly used in connection with the activities of the Mobilization Network and the GOTV Drive. R. 79. Rightnowar also alleged that Unity Slate supporters were traveling on union time to engage in election activities. R. 79. Rightnowar also challenged the Election Protest Committee's determination that George Faulkner, rather than Walpert, was serving as Election Officer. R. 79. Finally, Rightnowar alleged that the current ballot was in violation of BLET By-laws. R. 79. On December 15, 2010, the BLET Advisory Board issued a Decision on Appeal on Rightnowar's pre-election protests ND–2010–17 and ND–2010–18. R. 82. The Advisory Board concluded that the ElectionProtest Committee's decision was neither arbitrary nor capricious under the applicable rules and affirmed the decision. R. 85–86.
After the election, on January 12, 2011, plaintiffs filed a complaint with the Secretary asking that the election results be set aside. R. 409. (“Agency Complaint”). The Agency Complaint, which stated that it was based on pre-election protests ND–2010–17 and ND–2010–18, alleged several violations of the LMRDA. R. 51. Plaintiffs alleged that “National Division officers running for election used union funds to ‘get out the vote’ in the officer election.” R. 51. Plaintiffs also alleged that union funds were used to create a so-called Mobilization Network during the election period, which had a bias toward the Unity Slate. R. 52. Plaintiffs also alleged that railroad carrier funds were also used in setting up the Mobilization Network. R. 52. Plaintiffs further alleged that the incumbent candidates increased their official travel during the time they were running for office and were essentially campaigning on union funds, which was a misuse of union funds in violation of 29 U.S.C. § 481(g). R. 53. Plaintiffs also contended that a defunct publication, the Locomotive Engineers and Trainmen Journal was revived during the time period of the election solely for the purpose of supporting the incumbent officers. R. 54. Finally, plaintiffs argued that “the very form of the ballot was an ‘advertisement’ on behalf of the candidacy of the Unity Slate” because the ballot listed the names of the members of the Unity Slate, of whom all but four had already been elected. R. 54. Plaintiffs contended that the only purpose of listing all of the names was making clear that the four candidates had the support of the BLET establishment and that, by comparison, plaintiffs “were marginal candidates unable to form a full slate.” R. 54.
On May 25, 2011, the Secretary issued a Statement of Reasons denying the relief requested in the Agency Complaint, finding that no violations of Title IV, as alleged by plaintiff, had occurred. Statement of Reasons (“SOR”), Compl. Ex. B. The Secretary explained that plaintiffs' allegations regarding the incumbent officers' improper use of union funds and resources for the GOTV Drive were not substantiated by the evidence. SOR at 1. Similarly, plaintiffs' allegations that the incumbent BLET National Division officers improperly campaigned while they were being compensated by the union also were not substantiated by the evidence. Id. The Secretary explained that the use of the Mobilization Network was in accordance with Section 7(h) of BLET's 2006 Bylaws, despite the fact that this was the first time the Mobilization Network had been used for officer elections. Id. The Secretary further explained that the investigation found that union members “received consistently clear communications that the Mobilization Network's purpose was to increase voter turnout and not to direct members to vote for specific candidates or slates.” SOR at 2. The Secretary noted that plaintiffs themselves “were asked to be part of [the] Get–Out–the–Vote–Drive for the election.” Id. The Secretary further concluded that BLET National Secretary–Treasurer Walpert had not improperly served as an Election Officer while being a candidate in the election, and that Walpert's actions were permitted within the 2006 Bylaws. 3 The Secretary also concluded that there was no evidence of any discrimination in favor of or against any candidate, or that “anything improper or irregular occurred...
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