Chao v. Local 1357, Intern. Broth. of Elec.

• Decision Date: 29 October 2001
• Docket Number: No. CV01-00367 SOM/BMK.,CV01-00367 SOM/BMK.
• Citation: 184 F.Supp.2d 1029
• Parties: Elaine L. CHAO, Secretary of Labor, United States Department of Labor, Plaintiff, v. LOCAL 1357, INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, AFL-CIO, Defendant.
• Court: U.S. District Court — District of Hawaii

184 F.Supp.2d 1029

Elaine L. CHAO, Secretary of Labor, United States Department of Labor, Plaintiff, v. LOCAL 1357, INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, AFL-CIO, Defendant.

No. CV01-00367 SOM/BMK.

United States District Court, D. Hawaii.

October 29, 2001.

COPYRIGHT MATERIAL OMITTED

Barbara A. Matthews (argued), U.S. Department of Labor, Office of the Regional Solicitor, San Francisco, CA, Theodore Meeker, Assistant U.S. Attorney (appeared, but did not argue), Office of the United States Attorney, Honolulu, HI, for Plaintiff.

Herbert R. Takahashi (argued), Takahashi Masui & Vasconcellos, Honolulu, HI, for Defendant.

AMENDED ORDER DENYING DEFENDANT'S MOTION TO DISMISS

MOLLWAY, District Judge.

I. INTRODUCTION.

The Secretary of Labor (the "Secretary") sued Defendant Local 1357, International Brotherhood of Electrical Workers, AFL-CIO ("Local 1357"), under Title IV of the Labor Management Reporting and Disclosure Act of 1959 (Act of September 14, 1959, 73 Stat. 519 et seq., 29 U.S.C. §§ 481 et seq., hereinafter the "LMRDA"). Local 1357 moves to dismiss the complaint on the grounds of failure to exhaust internal remedies, mootness, and res judicata. This court DENIES Defendant's motion to dismiss.

II. BACKGROUND.

On February 16, 2001, Local 1357 held an election for its officers (the "election"). A notice of nominations and the election was issued to the members of Local 1357 in November, 2000, and nominations were held at unit meetings in December, 2000. At the Unit 8 meeting held on December 12, 2000, Joseph Kim nominated George Waialeale for the office of Business Manager-Financial Secretary. Waialeale was opposed for the office by Harold Dias. On December 28, 2000, an election judge was appointed to conduct the election and to review the candidates' eligibility for each of the offices for which they had been nominated. That same day, the election judge was informed that the International Brotherhood of Electrical Workers (the "IBEW"), had deemed Waialeale ineligible to run for the office of business manager because Waialeale had, while serving as a prior business manager of the union, made allegedly improper expenditures of union funds in the amount of $80,499.92. Based on a December 20, 2000, letter from the IBEW, Waialeale's name was excluded from the election ballot. The election results were certified on February 16, 2001, and the newly elected officers of Local 1357 were installed on March 2, 2001.

On January 23, 2001, Waialeale sued Local 1357 and the IBEW in this court under Title I of the LMRDA ("Title I"), alleging that he had been improperly disciplined and disqualified by Local 1357 and the IBEW without specific written charges, in violation of 29 U.S.C. § 401(a)(5). This court denied his request for a temporary restraining order prohibiting the issuing and mailing of the ballots and the holding of the election unless his name was included on the ballot. This court held that, because he had not shown that he had exhausted his union remedies in challenging Local 1357's refusal to put his name on the ballot, he had failed to establish a likelihood of success on the merits. See Order Denying Plaintiff's Motion for Temporary Restraining Order in Waialeale v. International Brotherhood of Electrical Workers, CV01-00064 SOM/BMK (Jan. 30, 2001) at 11. On April 6, 2001, this court dismissed Waialeale's complaint with prejudice as to all claims and all parties after Waialeale, Local 1357, and the IBEW agreed to settle the case. See Stipulation for Dismissal with Prejudice as to All Claims and Parties and Order in Waialeale v. International Brotherhood of Electrical Workers, CV01-00064 SOM/BMK (Apr. 6, 2001). Under the terms of the settlement agreement, Waialeale agreed not to run for any union office in the IBEW or Local 1357 until after January 1, 2008. In exchange, the IBEW and Local 1357 waived their claim for reimbursement of the alleged improper expenditures of union funds.

On March 13, 2001, Joseph Kim wrote a letter (the "Kim letter") to Michael Mowrey, International Vice President of the IBEW, complaining that Waialeale's disqualification after the close of nominations had deprived union members of a "choice or opportunity to vote for anyone else beside [sic] Business Manager Dias" and asking that "a new election be held immediately for Business Manager-Financial Secretary with new nominations." Kim did not address or send the letter to Local 1357 or the election judge. On March 23, 2001, Mowrey informed Kim that he found "no basis for [Kim's] complaint" and "no reason for a new election." Kim did not appeal from Mowrey's decision, but, on April 5, 2001, Kim filed a complaint with the Department of Labor (the "Department") alleging that, because of the timing of Waialeale's disqualification, members of Local 1357 were not given a choice in the election for business manager. The election judge informed the Department that Kim's election protest had not been submitted to Local 1357 and that there had been no proper exhaustion of internal union remedies. Kim withdrew his complaint on April 25, 2001, but the Department continued its investigation, indicating that, under Department policy, "an election protest filed with the Secretary of Labor, or any specific allegation therein, may not be withdrawn from [Office of Labor Management Standards] consideration by the complainant for any reason."

On May 22, 2001, the Department notified Local 1357 and the IBEW of its findings that "[t]he union failed to provide a reasonable opportunity for candidates to be nominated when it improperly disqualified an otherwise eligible candidate in violation of Section 401(d) of the LMRDA." On June 4, 2001, the Secretary sued Local 1357 in this court under Title IV of the LMRDA ("Title IV"), alleging that Local 1357 had violated section 401(e) of the LMRDA, 29 U.S.C. § 481(e), by disqualifying a member in good standing as a candidate for office on the basis of union discipline imposed in violation of section 101(a)(5) of the LMRDA, 29 U.S.C. § 411(a)(5). The Secretary seeks to declare Local 1357's election for the office of Business Manager-Financial Secretary null and void and to require a new election under the Secretary's supervision.

III. STANDARD OF REVIEW.

A Rule 12(b)(1) attack on the court's subject matter jurisdiction may be either facial or factual. White v. Lee, 227 F.3d 1214, 1242 (9th Cir.2000) (citing 2 James Wm. Moore et al., Moore's Federal Practice ¶ 12.30[4], at 12-38 to 12 41 (3d ed.1999)). Local 1357 does not contest the sufficiency of the Secretary's allegations, but rather attacks the factual existence of subject matter jurisdiction. In evaluating this motion, the court may look beyond the complaint to matters of public record without having to convert the motion into one for summary judgment, and the court need not presume the truthfulness of the plaintiff's allegations. White v. Lee, 227 F.3d at 1242 (citations omitted). The Secretary has the burden of proving this court has actual subject matter jurisdiction. See Thompson v. McCombe, 99 F.3d 352, 353 (9th Cir.1996) ("A party invoking the federal court's jurisdiction has the burden of proving the actual existence of subject matter jurisdiction").

IV. ANALYSIS.

The LMRDA was the first major attempt by Congress to regulate the internal affairs of labor unions. Title I provides union members with a statutory "Bill of Rights" that protects, among other things, their rights to vote and participate in union decisions, and their rights to be free from improper discipline and unreasonable restrictions on speech and assembly. Title I allows union members to seek appropriate remedies in district court for violations of these rights. Title IV, by contrast, creates a statutory scheme governing the election of union officers and provides a post-election procedure aimed at protecting union democracy through free and democratic elections. Primary enforcement responsibility under Title IV rests with the Secretary.

The Supreme Court has cautioned against a literal reading of the LMRDA and has indicated that its proper construction requires consideration of its wording against the background of its legislative history and the general objectives Congress sought to achieve. See Wirtz v. Local 153, Glass Bottle Blowers Ass'n, 389 U.S. 463, 468, 88 S.Ct. 643, 19 L.Ed.2d 705 (1968). The court considers this motion involving the interplay of Title I and Title IV with this admonition in mind. See Local No. 82, Furniture & Piano Moving, Furniture Store Drivers, Helpers, Warehousemen & Packers v. Crowley, 467 U.S. 526, 549, 104 S.Ct. 2557, 81 L.Ed.2d 457 (1984) ("this admonition applies with its greatest force to the interaction between Title I and Title IV").

A. Exhaustion of Internal Union Remedies.

Procedurally and substantively, Kim exhausted internal union remedies, as required by Title IV. Title IV provides:

A member of a labor organization (1) who has exhausted the remedies available under the constitution and bylaws of such organization and of any parent body, or (2) who has invoked such available remedies without obtaining a final decision within three calendar months after their invocation, may file a complaint with the Secretary within one calendar month thereafter alleging the violation of any provision of section 481 of this title....

29 U.S.C. § 482(a). The Secretary shall investigate such complaint and may, within 60 days after the filing of the complaint, sue the labor organization in federal district court to set aside an election and direct the conduct of a new election if the Secretary has found probable cause to believe that a violation of Title IV has occurred and not been remedied. See 29 U.S.C. § 482(b). A complaint filed with the Secretary is the exclusive means of resolving disputes governed by Title IV. 29 U.S.C. § 483; Casumpang v. Int'l Longshoremen's & Warehousemen's Union, 269 F.3d 1042, 1056 (9th Cir.2001)(citin...