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Hilda L. Solis, Secretary of Labor, United States Department of Labor v. Communications Workers of America

February 23, 2011

HILDA L. SOLIS, SECRETARY OF LABOR, UNITED STATES DEPARTMENT OF LABOR, PLAINTIFF,
v.
COMMUNICATIONS WORKERS OF AMERICA, AFL-CIO, DEFENDANT.



The opinion of the court was delivered by: Colleen Kollar-kotelly United States District Judge

MEMORANDUM OPINION

This case is about the fundamental issue of what it means to conduct an election by "secret ballot." Secretary of Labor Hilda L. Solis*fn1 (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 (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.*fn2 ¶ 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.*fn3 Id.

¶ 2; CWA Ex. 2.*fn4 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.*fn5 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 the 2008 CWA Convention.

2. The 2008 CWA Convention

The 2008 CWA Convention was held on June 23, 2008. Pl.'s Stmt. ¶ 19. During that convention, CWA held its regularly scheduled elections for national officer positions. Id. The positions of District Vice President ("DVP") for Districts 1, 3, 7, and 9 were the only contested positions. Id. The candidates for District 1 Vice President-the only race for which there was an election dispute-were Carla Katz and Chris Shelton. Def.'s Stmt. ¶ 16.

With assistance from the Secretary-Treasurer's staff, the CWA Credentials Committee handled the registration of delegates at the 2008 Convention. Pl.'s Stmt. ¶ 22. The Credentials Committee gave each registered delegate a photo ID badge containing a computerized code that enabled access to information about that delegate in the CWA database. Id. The code on the ID badge contained the delegate's name, local union number, voting strength, and the races in which he or she was eligible to vote. See Def.'s Resp. Stmt. ¶ 22; Pl.'s Ex. 16 (Report of Interview with Madge Elizabeth Collins); Decl. of Marjorie Ann Krueger ("Krueger Decl.") ¶ 2. When the ID badge was scanned during the election process for the purpose of generating a ballot, the only information that appeared on the ballot was the name of the race being voted on (e.g., District 3 Vice President), the names of the candidates for that position, and the delegate's voting strength. See Def.'s Resp. Stmt. ¶ 22; Pl.'s Ex. 16; Pl.'s Ex. 27 (under seal) (copies of ballots used at 2008 Convention); Krueger Decl. ¶ 2. The Credentials Committee, assisted by the Secretary-Treasurer's office staff, worked to resolve any discrepancies regarding delegate voting strength before the opening session of the Convention. Pl.'s Stmt. ¶ 24. The Credentials Committee then created a convention report with the total number of delegates registered, which was presented to the floor at the opening of the Convention. Id.; Pl.'s Ex. 16; Decl. of Marjorie Ann Krueger ¶ 4. The members of the Credentials Committee-about 16 people in total-each had access to the credentials list with each delegate's name, voting strength, and local union. See Rechenbach Dep. at 63.

The list of delegates and their voting strengths was retained at the Convention's information booth, where it was available to any delegate. Pl.'s Stmt. ¶ 26; Dep. Tr. of Vera McGee at 33-34.*fn6 The credentials list was also maintained on CWA computers to which employees of the CWA Secretary-Treasurer had access. Pl.'s Stmt. ¶ 27. Prior to the time that elections were held for DVP positions, the CWA national officers each received a copy of the credentials list. Pl.'s Stmt. ¶ 30. Similarly, each of the candidates for the contested DVP positions received a copy of the list of delegates with their voting strengths for his or her district. Id. ¶ 31. Therefore, Carla Katz received a list of the delegates voting for District 1 Vice President and their voting strengths. Id. ¶ 33. CWA did not restrict candidates from copying or disseminating the list of delegates and their voting strengths. Id. ¶ 32.

A substantial number of the delegates voting in the District Vice President elections had a unique voting strength, meaning that no other delegate carried the same number of votes. Pl.'s Stmt. ¶ 70. For example, in the District 1 Vice President race, 82 out of 286 delegates had unique voting strengths, totaling 53,973 votes out of 130,334 votes cast. See Pl.'s Ex. 22. Because voting strength was printed on each delegate's ballot, it would be possible to identify these delegates' votes by comparing their marked ballots with the list of delegates and voting strengths. For example, Carla Katz had a voting strength of 11,489 votes at the 2008 Convention. Def.'s Stmt. ¶ 58. If someone saw a ballot with "11489" marked on it, he or she could discover that it was Carla Katz's ballot by looking at the list of delegates and realizing that Carla Katz is the only delegate with that voting strength.

Because of this concern, CWA Election Judge Raeder followed procedures that limited the ability of election observers to review the marked ballots. The record shows that Eileen Brackens, Executive Assistant to the CWA Secretary-Treasurer, discussed the secret ballot requirement in the CWA Constitution with Raeder prior to the Convention. See Dep. Tr. of Eileen M. Brackens ("Brackens Dep.") at 39-40. Brackens testified that Raeder approved the procedure that had been followed by CWA at previous conventions. Id. at 39. On July 22, 2008, the day before the elections were to be held, CWA held a meeting with the candidates and their designated election observers. Def.'s Stmt. ¶ 20. Each candidate was permitted to designate two observers. Id. ¶ 19. During the meeting, Election Judge Raeder reviewed the procedures that would be applied during the voting process. Id. ¶ 20. Raeder told the observers that they would be able to observe the voting and vote tabulation process, but that they would not be able to view the actual marked ballots. Id. Some observers complained about this during the meeting. See Pl.'s Resp. Stmt. ¶ 20. However, the candidates were explicitly informed that observers would not be allowed to take notes in the vote tabulation area because the secrecy of the ballot could be compromised if observers could note the voting strength on the ballots and compare them to the credentials list. See Pl.'s Ex. 46 (6/22/2008 Memorandum to Candidates for CWA Office).

3. Voting for the District Vice President Elections The voting for DVP positions began immediately after nominations closed in each District meeting on June 23, 2008. Pl.'s Stmt. ¶ 36. Voting took place under the supervision of Election Judge Raeder; he was assisted by several employees from Calibre as well as several employees of the CWA Secretary-Treasurer's office, who acted as tellers. Id. ¶¶ 35, 37. During the elections, each delegate presented his or her ID badge to the teller at the voting station. Id.

¶ 38. After scanning the information encoded on a delegate's ID badge, the teller printed out a ballot for the appropriate DVP race. Id. ¶¶ 39-40. Each delegate then took the ballot to a voting booth, marked the ballot, exited the voting booth, and deposited his or her folded and marked ballot into the ballot box. Id. ¶ 42. The voting booths were enclosed with privacy curtains so that no one could see how the delegates marked their ballots before they were deposited into the ballot box. See Decl. of Stephen J. Raeder ("Raeder Decl.") ¶ 5; Def.'s Stmt. ¶¶ 26-27.

When the voting process was completed, the marked ballots were tallied in a roped-off area located in the same room where the voting occurred. Pl.'s Stmt. ¶ 43. Stephen Raeder was in charge of the tallying process. Id. ¶ 44. All delegates were required to exit the voting room except for those who had been designated as election observers by the candidates; each candidate was permitted to designate two observers. Def.'s Stmt. ¶ 28. To ensure that the observers could not see how each ballot was marked, Raeder required the observers to stay behind a rope, at least twelve to fifteen feet from the tables where the ballots were counted. Raeder Decl. ¶ 7; Pl.'s Stmt. ¶¶ 46-48. Only those involved in the vote tabulation process were permitted on the tabulation side of the rope. Def.'s Stmt. ¶ 29. With assistance from another employee of Calibre, Raeder emptied the ballot boxes, segregated the ballots by District, and then bundled the ballots into bunches of fifty along with a Batch Tally Sheet to record the vote totals for each batch of ballots. Raeder ...


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