Solis v. Communications Workers of Am.

• Decision Date: 23 February 2011
• Docket Number: Civil Action No. 09–299 (CKK).
• Citation: 190 L.R.R.M. (BNA) 2399,766 F.Supp.2d 84
• Parties: Hilda L. SOLIS, Secretary of Labor, United States Department of Labor, Plaintiff,v.COMMUNICATIONS WORKERS OF AMERICA, AFL–CIO, Defendant.
• Court: U.S. District Court — District of Columbia

766 F.Supp.2d 84

190 L.R.R.M. (BNA) 2399

Hilda L. SOLIS, Secretary of Labor, United States Department of Labor, Plaintiff,

v.COMMUNICATIONS WORKERS OF AMERICA, AFL–CIO, Defendant.

Civil Action No. 09–299 (CKK).

United States District Court, District of Columbia.

Feb. 23, 2011.

Beverly Maria Russell, Maureen Quinn McGough, U.S. Attorney's Office, Washington, DC, for Plaintiff.Patricia Marie Shea, Communications Workers of America, Washington, DC, Michael L. Winston, Stephen B. Moldof, Cohen, Weiss and Simon, LLP, New York, NY, for Defendant.

MEMORANDUM OPINION

COLLEEN KOLLAR–KOTELLY, District Judge.

This case is about the fundamental issue of what it means to conduct an election by “secret ballot.” Secretary of Labor Hilda L. Solis ¹ (the “Secretary”) filed this action under the Labor–Management Reporting and Disclosure Act (“LMRDA”), 29 U.S.C. §§ 401– 531, seeking to declare as void certain elections held by Defendant Communications Workers of America, AFL–CIO (“CWA”) at its 2008 national convention. The Secretary contends that CWA violated the terms of its own constitution and bylaws by conducting elections at that convention without adequate safeguards to ensure the secrecy of ballots cast by the voting delegates. The Secretary claims that these alleged violations tainted the election for four District Vice President offices and seeks an order requiring CWA to hold new elections for those four positions under supervision from the Department of Labor. CWA contends that the elections were conducted by secret ballot in accordance with its constitution and bylaws, and therefore there was no violation of the LMRDA. Presently pending before the Court are the parties' cross-motions for summary judgment. For the reasons stated below, the Court shall grant-in-part and deny-in-part CWA's [17] Motion for Summary Judgment and deny the Secretary's [19] Motion for Summary Judgment.

I. BACKGROUND

A. Statutory Background

Title IV of the Labor–Management Reporting & Disclosure Act (“LMRDA”), 29 U.S.C. §§ 481–483, regulates the procedures that labor unions must follow when conducting elections. Its purpose is to ensure “free and democratic” union elections. Wirtz v. Hotel, Motel & Club Emps. Union, Local 6, 391 U.S. 492, 496, 88 S.Ct. 1743, 20 L.Ed.2d 763 (1968). Under Section 401(a) of the LMRDA, “[e]very national or international labor organization, except a federation of national or international labor organizations, shall elect its officers not less often than once every five years by secret ballot among the members in good standing or at a convention of delegates chosen by secret ballot.” 29 U.S.C. § 481(a). Unions that choose to elect their officers at a convention of delegates must conduct their convention “in accordance with the constitution and bylaws of the labor organization insofar as they are not inconsistent with the provisions of [Title VI of the LMRDA].” Id. § 481(f). Section 401(c) of the LMRDA also provides that “[a]dequate safeguards to insure a fair election shall be provided, including the right of any candidate to have an observer at the polls and at the counting of the ballots.” Id. § 481(c).

The LMRDA provides that any union member may challenge an election believed to be held in violation of the statute's fair election procedures by filing a complaint with the Secretary of Labor after exhausting internal union remedies. See 29 U.S.C. § 482(a). The Secretary then investigates the complaint and, if the Secretary finds probable cause to believe there has been an election violation, brings a civil action against the union to set aside the invalid election. Id. § 482(b). If the Court finds that there was a violation of Section 401 of the LMRDA that “may have affected the outcome of an election, the court shall declare the election ... to be void and direct the conduct of a new election under supervision of the Secretary and, so far as lawful and practicable, in conformity with the constitution and bylaws of the labor organization.” Id. § 482(c).

B. Factual Background

CWA is a labor union that represents approximately 600,000 men and women in the public and private sectors. Def.'s Stmt.²¶ 1. CWA includes 1200 chartered local unions across the United States and Canada, and CWA is organized into various geographic districts. Id. The principal governing document for CWA is the CWA Constitution, which was amended as of July 2007 for purposes of the 2008 national officer elections that are at issue in this litigation.³ Id. ¶ 2; CWA Ex. 2.⁴ Article XV of the CWA Constitution governs the election of national officers, including a President, Executive Vice President, Secretary–Treasurer, and District Vice Presidents representing each geographic district. See CWA Ex. 2, Art. XV. In accordance with § 401(a) of the LMRDA, the CWA Constitution requires that elections for national officers be held every three years at a convention of delegates chosen by secret ballot. See Pl.'s Stmt. ¶ 14. Pursuant to Article XV, Section 2(a) of the CWA Constitution, elections for the offices of District Vice President are conducted by secret ballot, after nominations from the floor, at a meeting of the delegates from each district that occurs during the convention. Id. ¶ 15. The number of delegates elected by each local union is determined by a formula based on the size of the union's dues-paying membership. Id. ¶ 16; CWA Ex. 2, Art. VIII, § 4. A local union's votes are divided equally among its delegates, with any number of votes remaining assigned to the Chair of the local's designation. Pl.'s Stmt. ¶ 17. The number of votes that a particular delegate carries is referred to as that delegate's “voting strength.” Id. ¶ 18.

1. History of Elections Held at CWA Conventions

The requirement that national officers be elected by secret ballot has been a part of the CWA Constitution since at least 1949, before the passage of the LMRDA. See Def.'s Stmt. ¶ 7; Decl. of Jeffrey A. Rechenbach (“Rechenbach Decl.”) ¶ 7 & Ex. 1. CWA contends that it has conducted its national officer elections in essentially the same manner since the 1950s. See Def.'s Stmt. ¶ 9. Current CWA Secretary–Treasurer Jeffrey Rechenbach, who has been a national officer of CWA since 1994 and has worked with CWA since at least 1973, testified that the elections process has remained essentially unchanged over the years. See Dep. Tr. of Jeffrey A. Rechenbach (“Rechenbach Dep.”) at 112; Decl. of Jeffrey A. Rechenbach (“Rechenbach Decl.”) ¶¶ 1, 8–9. Joseph McAleer, Vice President of CWA Local 1101, who has attended CWA Conventions for approximately forty years, also stated that the voting, tabulation and observer procedures used at the 2008 CWA Convention were virtually identical to the procedures that had been used at the prior conventions he had attended. Decl. of Joseph P. McAleer ¶¶ 1–2, 28. The only significant change in procedure that occurred over the years was in the mid–1990s, when CWA shifted from handwritten to computer-printed ballots. Id. ¶ 28; Rechenbach Decl. ¶ 9.

The CWA Secretary–Treasurer has overall responsibility for the elections that are held during the Convention. Pl.'s Stmt. ¶ 20. CWA typically hires an outside auditor to oversee the elections and the tabulation of votes, whom CWA calls the Election Judge. For the 2008 Convention, CWA hired accountant Stephen Raeder (“Raeder”) of the Calibre CPA Group (“Calibre”) to serve as Election Judge. See Pl.'s Stmt. ¶ 34. Raeder had served as Election Judge at several CWA Conventions prior to the 2008 Convention. Def.'s Stmt. ¶ 18. In his declaration, Raeder stated that he followed the same procedures in 2008 that he had followed during the previous ten years he had served as Election Judge at CWA Conventions. Decl. of Stephen J. Raeder (“Raeder Decl.”) ¶ 26. Raeder also served as Election Judge during the 2009 CWA Convention and followed the same procedures. Id.; Def.'s Stmt. ¶ 67. The parties agree that the mailings and other documentation distributed by CWA with regard to the election processes to be followed at the 2008 Convention were essentially the same as those that had been sent or provided for elections in prior years. Def.'s Stmt. ¶ 65.

CWA has provided the Court with records from various Conventions dating back to 1951 describing the voting process for delegates. See Rechenbach Decl., Ex. 2. The parties agree that since at least 1974, the Election Judge has read a statement to the delegates at the beginning of the Convention setting forth the procedures that would be followed for elections. See Pl.'s Resp. Stmt. ¶ 9. ⁵ That statement, which has varied slightly in form over the years, contains the following elements: (1) Article XV of the CWA Constitution provides for the election of national officers by secret ballot; (2) voting shall be done on a per capita basis as certified by the Credentials Committee (meaning delegates will cast votes according to their certified voting strengths); (3) delegates will vote in designated areas by displaying their convention badges, which will be the sole verification of identity for voting purposes; (4) delegates may not use another delegate's badge; (4) a teller will provide the delegate with a ballot that contains the voting strength of the delegate; (5) delegates will mark their ballots in a secret voting booth provided for this purpose; (6) folded ballots will be deposited into a ballot box; (7) no more than two observers will be allowed for each candidate at any one polling and/or ballot-counting site; (8) observers will be restricted to specific designated areas that will enable them to note the names of those voting and observe the actual counting of ballots, but they will be placed so that they do not obstruct the voting and/or vote tabulation process; and (9) the observers do not have the right to count the ballots. Pl.'s Resp. Stmt. ¶ 9; Rechenbach Decl., Ex. 2. Raeder read a statement containing these elements to the delegates during...