Donovan v. Local 6, Washington Teachers' Union, AFL-CIO

• Decision Date: 30 October 1984
• Docket Number: No. 83-2101,AFL-CIO,83-2101
• Citation: 747 F.2d 711
• Parties: 117 L.R.R.M. (BNA) 2777, 241 U.S.App.D.C. 274, 102 Lab.Cas. P 11,231, 21 Ed. Law Rep. 32 Raymond J. DONOVAN, Secretary of Labor, Appellee, James Ricks, Appellant, v. LOCAL 6, WASHINGTON TEACHERS' UNION,
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 711

747 F.2d 711

117 L.R.R.M. (BNA) 2777, 241 U.S.App.D.C. 274,

102 Lab.Cas. P 11,231, 21 Ed. Law Rep. 32

Raymond J. DONOVAN, Secretary of Labor, Appellee James Ricks, Appellant, v. LOCAL 6, WASHINGTON TEACHERS' UNION, AFL-CIO.

No. 83-2101.

United States Court of Appeals District of Columbia Circuit.

Argued Sept. 26, 1984.

Decided Oct. 30, 1984.

As Amended Oct. 30, 1984.

Appeal from the United States District Court for the District of Columbia (D.C. Civil Action No. 81-02816).

Oliver Denier Long, Bethesda, Md., with whom John V. Long, Bethesda, Md., was on the brief, for appellant.

John H.E. Bayly, Jr., Asst. U.S. Atty., Washington, D.C., with whom Joseph E. diGenova, U.S. Atty., and Royce C. Lamberth and R. Craig Lawrence, Asst. U.S. Attys., Washington, D.C., were on the brief, for appellee.

Before WRIGHT and WALD, Circuit Judges, and MacKINNON, Senior Circuit Judge.

Opinion for the court filed by Circuit Judge J. SKELLY WRIGHT.

J. SKELLY WRIGHT, Circuit Judge:

James Ricks, an unsuccessful candidate in the June 1983 election for the presidency of Local 6, Washington Teacher's Union (WTU), appeals a District Court order declaring that the election complied with the Labor-Management Reporting and Disclosure Act of 1959 (LMRDA or the Act), 29 U.S.C. Sec. 401 et seq. (1982), and directing that the candidates certified by the Department of Labor (DOL) serve as the duly elected officers of the union. Ricks alleges that numerous substantive violations of LMRDA marred the conduct of the election and that DOL's certification was arbitrary, capricious, and inconsistent with the Act. He further alleges that the District Court committed several procedural irregularities in its disposition of his complaint.

We affirm the District Court in all respects but one. Even under the extraordinarily deferential standard of review set out by the Supreme Court in Dunlop v. Bachowski, 421 U.S. 560, 571-574, 95 S.Ct. 1851, 1859-1861, 44 L.Ed.2d 377 (1975), we find wholly inadequate the Secretary's treatment of Ricks' well-documented allegation that he was illegally prevented from distributing campaign literature. 29 U.S.C. Sec. 481(c). On this one issue, therefore, we remand to the District Court with instructions to that court to order the Secretary of Labor to reopen consideration of the alleged violations and submit a fuller statement of reasons and explanation.

I. BACKGROUND

A. Statutory Framework

Following extensive investigations that revealed sometimes "shocking abuses" in the internal governance of labor organizations, S.Rep. No. 86-187, 86th Cong., 1st Sess. 5 (1959) (hereinafter cited as Senate Report ), Congress enacted the Labor-Management Reporting and Disclosure Act of 1959, 29 U.S.C. Sec. 401 et seq., to "guarantee internal union democracy." Senate Report at 6. Title IV of the Act, 29 U.S.C. Secs. 481-483, provides a number of procedural guarantees designed to assure free and open union elections. Among these guarantees are the right of every member in good standing to run for office, nominate candidates, and vote by secret ballot, id. Sec. 481(a), (b) & (d), the right of any candidate to have an observer at the polls, id. Sec. 481(c), and an enforceable duty on the part of union leadership to assure all bona fide candidates equal access to the electorate in the distribution of campaign literature. Id. Sec. 481(c).

Subsequent to an election, any union member who has exhausted internal remedies may file a complaint with the Secretary of Labor. Id. Sec. 482(a). Following a mandatory investigation, the Secretary, if he finds probable cause to believe that a violation has occurred and that it has not been remedied, comes under a statutory obligation to bring a civil action against the union in federal court to set aside the election. If, after trial, the court finds by a preponderance of the evidence that the election did not comply with LMRDA and that any violation "may have affected the outcome of the election," the court "shall" declare the election void and direct the Secretary to conduct a new election under his supervision. Id. Sec. 482(c). If, however, the supervised election satisfies the requirements of the Act, the Secretary must certify the names of those elected and request that the court issue a decree declaring them to be the duly elected officers of the union. Id.

B. Factual Background

The election at issue in this case is the third that WTU has attempted to conduct. At the request of the Secretary of Labor, the District Court nullified the results of the first two elections for gross violations of LMRDA.

WTU conducted the first election on May 18, 1981. In this election, as in the two later elections, the rank and file were presented with several slates, each with over 20 candidates for various positions in the union leadership. Votes could be cast for candidates individually, although the results suggest that most union members voted by slate. The first election, which was conducted without DOL supervision, resulted in the election of the entire incumbent slate.

Ricks filed an administrative complaint with the Secretary pursuant to 29 U.S.C. Sec. 482(a). Following his statutorily required investigation, the Secretary found numerous violations of Sections 481(a) and 481(b) of the Act, including denial of a reasonable opportunity to nominate candidates and failure to conduct the election by secret ballot. The Secretary requested an order nullifying the election in its entirety and directing that WTU conduct a new election under his supervision. The District Court, after a trial limited to the issue of the secret ballot violation, granted the order in full.

Balloting for the second election (the first supervised election) took place between March 1 and March 19, 1983 under DOL supervision. Twenty-five hundred votes were cast. Ricks won the union presidency by a four-vote margin and his running mate, Jeanette Feely, was elected vice president by 21 votes. The other 19 victors were members of the slate of the incumbent president, William H. Simons. Almost immediately various union members and their representatives, including Ricks' counsel, filed protests claiming that numerous serious violations of LMRDA had occurred. The Secretary agreed, finding that Ricks had been deprived his statutorily protected right to an equal opportunity to mail campaign literature, 29 U.S.C. Sec. 481(c), and that at least 13 and possibly more fraudulent ballots had been cast. Affidavit of Richard G. Hunsucker, Director, Office of Labor-Management Standards Enforcement, United States Department of Labor, May 5, 1983 (Hunsucker I), at 3-4, reproduced in Appendix for Appellee (App. I) at 48-49. These ballots had been mailed to union members and returned to the union office as undeliverable. Somehow, they ended up in the ballot box. Believing that "it is impossible to gauge exactly how many votes were cast in this manner," id. at 4, App. I at 49, on May 9, 1983 the Secretary petitioned the District Court to order a second supervised election for all offices. On May 10th the court nullified the March 1983 election and directed WTU to conduct yet another election, again under DOL supervision.

Ricks objected to that part of the District Court's order requiring that the second supervised election include the offices of president and vice president. In Ricks' view, he and Feely had won the second election in spite of the illegal conduct of the incumbent leadership. Reasoning that the incumbents should not be able to profit from their own misconduct, and that the fraud could not have "affect[ed] the outcome" of the election for those two offices, 29 U.S.C. Sec. 482(c)(2), he argued that the supervised reelection should only be for the other positions. On June 2, 1983, treating Ricks' objection as a motion to reconsider the May 10th order, the District Court rejected the argument. Finding that "plain old voter fraud * * * makes this whole election worthless," Transcript of June 2, 1983 Proceedings (Tr.) at 4, the court held that a new election for all of the positions was necessary.

The third election--the subject of this appeal--was conducted under DOL supervision on June 18, 1983 and resulted in the defeat of Ricks and Feely and the election of all of the candidates on the incumbent slate. Ricks again protested the results of the election. But this time, after investigation, the Secretary found that whatever minimal violations of LMRDA occurred in the course of the election could not have "affect[ed] the outcome." 29 U.S.C. Sec. 482(c)(2). Accordingly, he moved for a court order certifying the election and declaring the victorious candidates the duly elected officers of WTU. Certification of Election, August 12, 1983, App. I at 61-62. The District Court granted the order in full, Order and Judgment, September 29, 1983, App. I at 77-78, and this appeal followed.

II. ANALYSIS

A. Standard of Review

In Dunlop v. Bachowski, supra, the Supreme Court set out the appropriate standard for reviewing a decision by the Secretary of Labor not to bring a civil action to set aside a union election for violations of LMRDA. In Usery v. Local U. No. 639, Int'l Bhd of Teamsters, 543 F.2d 369 (D.C.Cir.1976), cert. denied, 429 U.S. 1123, 97 S.Ct. 1159, 51 L.Ed.2d 573 (1977), this court held that the Dunlop standard of review applied as well to the Secretary's decision to certify an election as valid. Because of the special expertise of the Secretary of Labor and the congressional objective of "settl[ing] as quickly as possible the cloud on the incumbent's title to office," Wirtz v. Local 153, Glass Bottle Blowers Ass'n, 389 U.S. 463, 468 n. 7, 88 S.Ct. 643, 647 n. 7, 19 L.Ed.2d 705 (1968), the Dunlop standard of review is "much narrower than applies under 5 U.S.C. Sec. 706(2)(a) [the arbitrary and capricious standard of the Administrative Procedure Act]." Usery, supra, 543 F.2d at 378. More specifically:

Except in what must be...