Solis v. Laborer's Int'l Union of North Am.

• Citation: 775 F.Supp.2d 1191
• Decision Date: 29 April 2010
• Docket Number: Civ. No. 09–00512 ACK–BMK.
• Parties: Hilda L. SOLIS, Secretary of Labor, United States Department of Labor, Petitioner,v.LABORER'S INTERNATIONAL UNION OF NORTH AMERICA, Local 368, Respondent.
• Court: U.S. District Court — District of Hawaii

775 F.Supp.2d 1191

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

v.LABORER'S INTERNATIONAL UNION OF NORTH AMERICA, Local 368, Respondent.

Civ. No. 09–00512 ACK–BMK.

United States District Court, D. Hawai‘i.

April 29, 2010.

Leon E. Pasker, Isabella M. Finneman, U.S. Department of Labor Office of the Solicitor, San Francisco, CA, for Petitioner.Rebecca L. Covert, Takahashi Vasconcellos & Covert, Honolulu, HI, for Respondent.

ORDER (1) ADOPTING THE MAGISTRATE'S FINDINGS AND RECOMMENDATION, (2) AFFIRMING THE MAGISTRATE'S ORDER DENYING RESPONDENT'S MOTION TO QUASH, AND (3) AFFIRMING THE MAGISTRATE'S ORDER GRANTING IN PART RESPONDENT'S ALTERNATIVE REQUEST FOR A PROTECTIVE ORDER

ALAN C. KAY, Senior District Judge.

This action is brought to compel Respondent Laborer's International Union of North America, Local 368 (“Local 368” or “Respondent”) to comply with two administrative subpoenas duces tecum issued and directed to Respondent by Jennifer Bergschneider, Acting District Director of the Office of Labor–Management Standards (“OLMS”), on behalf of the Petitioner Hilda L. Solis, the Secretary of the United States Department of Labor (“Secretary” or “Petitioner”). See Petitioner's Response to Respondent's Objections filed March 15, 2010 (“Petitioner's Resp.”) at 8.

FACTUAL BACKGROUND ¹

A. The 2008 Settlement Agreement & Election Rules

Local 368 was placed under trusteeship by its parent union, Laborers International Union of North American (“LIUNA”) beginning in January 2007. Id. at 9; Memorandum in Support of Respondent's Objections filed on February 2, 2010 (“Respondent's Obj. Mem.”) at 2. In order to end the trusteeship, Local 368 scheduled an election of several officers for May of 2008. Petitioner's Resp. at 9; Respondent's Obj. Mem. at 2.

According to Petitioner, in April of 2008, OLMS received an election protest from a Local 368 member who complained that one of the candidates running for the union's highest office, Oliver H. Kupau (“Kupau”), should be barred as a candidate. Petitioner's Resp. at 9. As a result of this complaint, OLMS opened an investigation. Id.; Respondent's Obj. Mem. at 2.

In June of 2008, OLMS notified Kupau that he was disqualified as a candidate for the position of business manager, and that he was barred from holding any union office. Petitioner's Resp. at 9. Further, OLMS ordered LIUNA, as trustee for Local 368, to immediately terminate Kupau's employment with Local 368. Id.

In August of 2008, OLMS reviewed the ballots and interim candidates were seated. Id. As a result of the Secretary's investigation, on August 20, 2008, LIUNA, Local 368, and OLMS, entered into a voluntary compliance agreement (“Settlement Agreement”). Id.; Respondent's Obj. Mem. at 2, Ex. 1:8–9. Subsequently, LIUNA ended the trusteeship of Local 368.² Id. The Settlement Agreement addresses the tallying of the ballots from the 2008 election and, if necessary, a rerun election related to the offices of President, Recording Secretary, and Business Manager. Respondent's Obj. Mem. at 2–3.

With respect to the complaints regarding the May 2008 election, it was agreed that:

[T]he time within which the Secretary of Labor may bring suit for any and all causes of action arising from or relating to the OLMS investigative findings with regard to the challenged election for the positions of President and Recording Secretary shall be extended to 45 days after the election and for the position of Business manager until 90 days after the district court rules in Kupau v. United States Dep't of Labor, CV 08–00296 HG LEK. Such action shall not constitute a practice or precedent in the event of any future dispute of a similar nature. It is further agreed that LIUNA Local 368 waives any and all defenses relating to the timeliness of any and all actions required to be taken by the Secretary under Section 402 of the LMRDA which Local 368 might otherwise have to the causes of action referred to above.

LIUNA Local 368 further agrees that any dispute arising during the course of the supervised election as to the legality or the practicability of any election procedure shall be decided by the representative of the Secretary of Labor. Any member's protest regarding the supervised election shall be filed with the OLMS election supervisor.

Respondent's Obj. Mem. at 3, Ex. 1:9. The supervised election was delayed on account of Kupau's appeal to this Court of the OLMS's decision to bar him from holding office. Petitioner's Resp. at 9–10. On April 2, 2009, this Court denied Kupau's Application for an Exemption from 29 U.S.C. § 504, which prohibits any individual convicted of specified crimes, including bribery, from serving as an officer, director, executive board member, or employee of a labor organization for a period of thirteen years from the later of the date of conviction or the end of a period of incarceration. Id. at 10; 29 U.S.C. § 504(a).

As a result of this decision, it was determined that a rerun election was necessary for the offices of President, Recording Secretary, and Business Manager–Delegate, which was to be supervised by Petitioner and conducted in accordance with the rules and procedures dated April 8, 2009 (“Election Rules”), agreed on by parties as part of the Settlement Agreement. Respondent's Obj. Mem. at 3, Ex. 1:10–19; Petitioner's Resp. at 9. The supervised election was scheduled to occur on July 11, 2009. The Election Rules provide that installation of the officers would occur at the next regular membership meeting following the tally and OLMS election protest deadline. Election Rules at 2. Each candidate was to have the opportunity to inspect the membership list which was to contain the names and last known addresses of all Local 368 members subject to the collective bargaining agreement. Id. The ballots were to be tallied on July, 11, 2009. Id. at 4. With respect to election protests, the Election Rules provide that:

Any member may protest the supervised election of officers directly to the OLMS election supervisor at any time during the election process. Protests must be in writing and must be received no later than 5:00 p.m. on Tuesday, July 21, 2009.

Id. at 6.

At all times relevant to the instant Petition, OLMS, through its field office in Honolulu, Hawaii, has been involved in investigating complaints related to the supervised election, as mandated by the Election Rules. Petitioner's Resp. at 10. Specifically, the Election Rules state that

it should be clearly understood that all phases of the nominations and elections of Local 368 officers are subject to U.S. Department of Labor supervision. No aspect should be conducted without prior consultation with and approval by the OLMS election supervisor or his designated representatives.

Election Rules at 9.

B. The Secretary's Request for Documents

According to Petitioner, one or more Local 368 members complained to OLMS that prior to June 12, 2009, only certain candidates had access to and were making calls to voting members.³ Petitioner's Resp. at 10. On June 17, 2009, OLMS wrote to Respondent's Executive Board requesting that Respondent provide to Pearl Moenahele, OLMS election supervisor in Honolulu, a list of names and telephone numbers for all members of Local 368 (“6/17/09 Letter to the Executive Board”). Respondent's Obj. Mem. at 5, Ex. 1:26–27. The 6/17/09 Letter to the Executive Board requested that the list of names and telephone numbers be delivered by June 19, 2009.

The parties do not indicate whether Local 368 responded to the 6/17/09 Letter to the Executive Board, but on June 22, 2009, OLMS issued a subpoena duces tecum to the custodian of records of Local 368, seeking records pertaining to membership information and telephone numbers (“First Subpoena”). Petitioner's Resp. at 10–11; Respondent's Obj. Mem. at 5, Ex. 1:28. Petitioner asserts that the purpose of First Subpoena was twofold. First, OLMS intended to make the membership information and telephone numbers available to all candidates as part of its supervisory function under the Settlement Agreement, such that the candidates would have equal access to this information. Petitioner's Resp. at 10–11. Second, the subpoena was to assist in its general investigation to determine whether any person associated with Local 368 violated or is violating any provision of the Labor–Management Reporting and Disclosure Procedure Act of 1959, 29 U.S.C. § 401–531 (“LMRDA” or “Act”). Id.⁴ On June 23, 2009, OLMS personally served Local 368 with the First Subpoena which required Respondent to produce the requested records on June 24, 2009. Id. at 11. On June 24, 2009, Respondent's secretary-treasurer informed OLMS that Respondent objected to the release of the personal telephone numbers, and therefore would not produce the records requested in First Subpoena. Id.; Respondent's Obj. Mem. at 5–6.

Subsequently, according to Petitioner, OLMS received additional election protests between June 12, 2009, and July 21, 2009, complaining that Local 368 resources were used to promote several of the candidates for the rerun supervised election. Petitioner's Resp. at 11. As a result of these complaints, OLMS issued another subpoena duces tecum on July 14, 2009 (“Second Subpoena”). Petitioner's Resp. at 11; Respondent's Obj. Mem. at 6, Ex. 1:28–30. The supervised election proceeded, and the votes were tallied on July 11, 2009, pursuant to the Election Rules. Petitioner's Resp. at 11.

The Second Subpoena required Local 368 to produce records related to these complaints, including information pertaining to Local 368 campaign and business expenses, timekeeping records, union vehicle logs, travel expenses, cellular telephone subscriber information in Respondent's possession, and minutes of meetings from January 1, 2009, through July 14, 2009. Petitioner's Resp. at 11. OLMS served the subpoena on Respondent on July 15, 2009, which required the Respondent to produce the records by...