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BERNSEN v. UNITED STATES DOL

October 8, 1997

STUART E. BERNSEN, Plaintiff,
v.
UNITED STATES DEPARTMENT OF LABOR, Defendant.



The opinion of the court was delivered by: GREEN

 I. Background

 The following facts drawn from the Administrative Record are not disputed. Mr. Bernsen is an employee of the Pension Benefit Guaranty Corporation and, at all material times, a member of Chapter 211 of the National Treasury Employees Union. ("Chapter 211" or "Chapter"). In the fall of 1994, he was Chapter 211's incumbent president. On September 19, 1994, as part of his re-election bid, he mailed a campaign flyer to Chapter members. His opponent for the office of Chapter president, Hollie Beckerman Jaffe ("Ms. Jaffe") *fn1" brought the Bernsen flyer to the attention of a National Treasury Employees Union ("national union") attorney. That attorney then wrote a letter to Mr. Bernsen expressing concerns about the contents of the flyer and questioning its distribution; he sent the letter to Mr. Bernsen and distributed copies to the other members of the Chapter's Executive Board, including Ms. Jaffe. Prior to the election, Ms. Jaffe and her supporters distributed copies of the attorney's letter to some of the Chapter's members. At the biennial election held on September 29, 1994, plaintiff lost his re-election bid to Ms. Jaffe by a margin of six votes.

 After losing the election, plaintiff filed an administrative complaint with the Department of Labor alleging that the outcome of the election had been affected by unlawful conduct on the part of his opponent. The Department investigated his allegations. See 29 C.F.R. § 458.50. However, the Department determined that his complaint did "not provide an adequate basis for instituting enforcement proceedings to set aside the challenged election." Statement of Reasons Dismissing the Complaint of Stuart E. Bernsen Concerning the Election of Union Officers Concluded by Chapter 211, National Treasury Employees Union on September 29, 1994, in Washington, D.C. at 1 (hereinafter "Statement of Reasons"). Therefore, the complaint was dismissed. Mr. Bernsen requested agency review of that action and the decision to dismiss was affirmed. Letter from John Katch, Acting Deputy Assistant Secretary of Labor, to Stuart E. Bernsen (Sept. 30, 1996) (Pl.'s Mot. for Summ. J. Ex. 2). This suit followed.

 In this action, plaintiff contends that the Department's decision not to seek a new, supervised election for the presidency of Chapter 211 was arbitrary, capricious, and an abuse of discretion because it was not in accordance with law. Compl. P2. Specifically, he argues that the Department erred as a matter of law in finding that his mailing of campaign flyers was unlawful. Compl. P27. Since his action was not unlawful, plaintiff contends that it cannot offset the election violation committed by his opponent and her supporters. Id. In plaintiff's view, the violation committed by his opponent and her supporters probably affected the outcome of the Chapter president race. Compl. P29. Therefore, Mr. Bernsen contends, because an election violation may have affected the outcome of a union election, the Department must proceed to seek a new election. Compl. P24.

 II. Discussion

 A. The Standard of Review

 The Labor-Management Reporting and Disclosure Act of 1959 (the "LMRDA" or the "Act") was designed to ensure democracy in union affairs, including the election of union officers. To achieve this end, the Act prescribes certain substantive and procedural rules with which union elections must comply. 29 U.S.C. § 481. These union election provisions are made applicable to public sector unions by the Civil Service Reform Act of 1978. 5 U.S.C. § 7120; see 29 C.F.R. § 458.29. The LMRDA also vests the Secretary of Labor with the exclusive authority to bring suit to set aside union elections that do not comply with the Act. 29 U.S.C. § 482. The Secretary is authorized to initiate such suits when, in his or her discretion, the Secretary determines that a probable violation of the Act has occurred and that the violation probably affected the outcome of the union's election. See 29 U.S.C. § 482(b); Dunlop v. Bachowski, 421 U.S. 560, 570, 95 S. Ct. 1851, 1859, 44 L. Ed. 2d 377 (1975); Wirtz v. Local 153, Glass Bottle Blowers Ass'n, 389 U.S. 463, 474, 88 S. Ct. 643, 649, 19 L. Ed. 2d 705 (1968).

 "The standard of review by which the courts are to review the Secretary of Labor's decisions under the LMRDA is quite deferential." Shelley v. Brock, 253 U.S. App. D.C. 382, 793 F.2d 1368, 1372 (D.C. Cir. 1986). This high degree of deference is a direct result of Congress' decision to "utilize the special knowledge and discretion of the Secretary of Labor in order best to serve the public interest." Calhoon v. Harvey, 379 U.S. 134, 140, 85 S. Ct. 292, 296, 13 L. Ed. 2d 190 (1964), reh'g denied 379 U.S. 984, 85 S. Ct. 639, 13 L. Ed. 2d 577 (1965); see also Bachowski, 421 U.S. at 568, 95 S. Ct. at 1858 (citing Calhoon); Shelley, 793 F.2d at 1372 (citing Bachowski). The Supreme Court has concluded that "since the statute relies upon the special knowledge and discretion of the Secretary for the determination of both the probable violation [of the LMRDA] and the probable effect [on the outcome of the questioned election], clearly the reviewing court is not authorized to substitute its judgment for the decision of the Secretary not to bring suit." Bachowski, 421 U.S. at 571, 95 S. Ct. at 1860; Doyle v. Brock, 261 U.S. App. D.C. 290, 821 F.2d 778, 782 (D.C. Cir. 1987). However, "to enable the reviewing court intelligently to review the Secretary's determination, the Secretary must provide the court and the complaining witness with copies of a statement of reasons supporting his [or her] determination." Bachowski, 421 U.S. at 571, 95 S. Ct. at 1860. This statement must be sufficient to enable the reviewing court "to determine with some measure of confidence whether or not the discretion . . . has been exercised in a manner that is neither arbitrary nor capricious." Id. (citations omitted). Except in rare cases, "the court's review [of the Secretary's decision] should be confined to examination of the 'reasons' statement, and the determination whether the statement, without more, evinces that the Secretary's decision is so irrational as to constitute the decision arbitrary and capricious." Bachowski, 421 U.S. at 572-73, 95 S. Ct. at 1860. If the reviewing court determines that there was a "rational and defensible basis" for the Secretary's decision, "then that should be the end of this matter, for it is not the function of the Court to determine whether or not the case should be brought or what its outcome would be." Id. at 573, 95 S. Ct. at 1860 (citations omitted); Dole v. National Alliance of Postal & Fed. Employees, 725 F. Supp. 56, 59 (D.D.C. 1989) ("Review may not extend to cognizance or trial of the complaining member's challenges to the factual bases for the Secretary's conclusion either that no violations occurred or that they did not affect the outcome of the election.")

 B. The Statement of Reasons

 As required by 29 C.F.R. § 458.64(b), the Department prepared a Statement of Reasons documenting its investigation and explaining its decision not to institute proceedings to set aside the Chapter's election. This single-spaced, eight-page document examined each of the five specific allegations brought by Mr. Bernsen. With regard to four of those allegations, the Department found no violation of the Act. *fn2" However, with regard to one of his allegations, the Department found that Mr. Bernsen had violated one section of the Act and that both Mr. Bernsen and Ms. Jaffe "probably committed violations" of another section. Statement of Reasons at 5. Because the Department concluded that these violations *fn3" offset each other and had no effect on the outcome of the election, the Department declined to file a complaint to set aside the election. Id. at 5. Mr. Bernsen challenges both the Department's finding that he violated the Act and its decision not to set aside the election after finding probable cause to believe that his opponent had also violated the Act.

 The investigation revealed that the National Treasury Employees Union had filed an unfair labor practice (ULP) charge against the agency *fn4" in early 1994. Id. at 1. On July 27, 1994, the union and the agency signed a settlement agreement in which they promised to negotiate several pending issues. Id. They also agreed "that they would issue only a joint public statement concerning any issues while negotiations were in progress." Id. Mr. Bernsen and the national union's attorney were the designated union negotiators. Id.

 By September 1994, the negotiations between the agency and the union had not yet concluded, but the Chapter's election was rapidly approaching. Id. at 2. Therefore, Mr. Bernsen asked the national union's attorney whether he could issue a statement to Chapter members concerning his role in the negotiations. Id. The attorney told Mr. Bernsen that such a statement would violate the settlement agreement, might jeopardize the negotiations, *fn5" and would not be in the union members' best interest. Id. Nevertheless, before the negotiations concluded, Mr. Bernsen sent a campaign flyer entitled "BERNSEN WINS RESULTS" ...


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