United States District Court, District of Columbia
[Copyrighted Material Omitted]
For THOMAS BRENNAN, CHARLES RIGHTNOWAR, Plaintiffs: Jonathan Louis Gould, LEAD ATTORNEY, LAW OFFICE OF JONATHAN L. GOULD, Washington, DC; Robert R Cohen, PRO HAC VICE, FRANKEL & COHEN, Chicago, IL.
For HILDA L. SOLIS, Secretary, United States Department of Labor, Defendant: Benton Gregory Peterson, LEAD ATTORNEY, UNITED STATES ATTORNEY'S OFFICE, Washington, DC.
For BROTHERHOOD OF LOCOMOTIVE ENGINEERS AND TRAINMEN, a Division of the Rail Conference of the International Brotherhood of Teamsters, Intervenor Defendant: Michael Stephen Wolly, LEAD ATTORNEY, ZWERDING. PAUL, KAHN & WOLLY, PC, Washington, DC.
Emmet G. Sullivan, United States District Judge.
Plaintiffs Thomas Brennan and Charles Rightnowar filed this action against the Secretary of Labor under Section 401 of the Labor Management Reporting and Disclosure Act of 1959 (" LMRDA" ), 29 U.S.C. § 481. In their Complaint, plaintiffs request an Order requiring the Secretary to file suit to set aside the December 15, 2010 officer election in the National Division of the Brotherhood of Locomotive Engineers and Trainmen (BLET) or, in the alternative, for a supplemental Statement of Reasons as to why the Secretary failed to file suit. Upon consideration of the motions, the responses and replies thereto, the applicable law, the administrative record, and for the reasons set forth herein, defendant's motion is GRANTED and plaintiffs' cross-motion is DENIED as moot.
a. Factual Background
Plaintiffs were unsuccessful candidates for union officer positions in the December 15, 2010 BLET election. Compl. ¶ ¶ 7-9. Brennan was a candidate for the office of President in BLET's National Division. Id. ¶ 2. Plaintiff Rightnowar was a candidate for the office of Secretary Treasurer of BLET's National Division. Id. ¶ 3. Incumbent President Dennis R. Pierce and incumbent Secretary Treasurer William C. Walpert were among the other opposing candidates in the election, and were re-elected. Id. ¶ ¶ 9-11. Incumbent officers Pierce and Walpert were part of what was called the " Unity Slate." Id. ¶ ¶ 12-13. In addition to Pierce and Walpert, the Unity Slate included several additional candidates, two of whom were running opposed and several who were running unopposed. Id. ¶ 13.
The December 15, 2010 election was the first " rank and file" election for the National Division; previously, positions had been filled through a delegate convention. Id. ¶ 16. Plaintiffs allege that prior to the election, the incumbent officers  set up a " Get Out the Vote" drive (" GOTV Drive" ). Id. ¶ 19. Plaintiffs allege that the GOTV drive was " allegedly neutral" but " consisted of persons opposed to the use of the rank and file election and in favor of the delegate convention." Id. ¶ 19. Plaintiffs further allege that after the efforts to change back to a delegate convention were rejected, the GOTV Drive was continued for the upcoming election. Id. ¶ 20.
Plaintiffs allege that although the " official position" of the incumbent officer candidates was that the BLET National Division was sponsoring a neutral effort to increase voter turnout, plaintiffs state that there were several improprieties in connection with the administration of the GOTV Drive. Plaintiffs allege that " [t]wo union officers headed the GOTV Drive and worked on a full time basis throughout the campaign period leading up to the December 15, 2010 period and were possibly paid
by two railroad companies." Compl. ¶ 21. Plaintiffs further allege that the " Unity Slate web site stated that the GOTV [Drive] was an activity of the Unity Slate campaign." Id. ¶ 23. Specifically, the website, a copy of which is attached to the Complaint as an exhibit, told members that " if they wished to support the Unity Slate, they should become active in the 'BLET Unity's Slate Get Out the Vote Drive." Id. ¶ 25. Plaintiffs further allege that BLET officers " were permitted on union time to make phone calls and contact various members--allegedly just to urge them to vote." Id. ¶ 26. Plaintiffs aver that " no one knows to whom such calls were made, and there is no documentation as to all members who may have received such calls." Id. ¶ 27.
b. Plaintiffs' Pre-Election Protests
Prior to the election, plaintiff Rightnowar filed several pre-election protests on behalf of himself and Thomas Brennan.  In protest number ND-2010-17, filed November 8, 2010, Rightnowar raised several issues with the then-upcoming election. R. 56. Rightnowar asserted
(1) alleged violations of portions of the [LMRDA], the IBT Constitution, BLET By-laws and the BLET Election Rules; (2) the use of Union resources 'to " construct" a nation-wide canvassing to get out the vote from the persons most likely to vote for the incumbent National Division officers'; (3) request for [National Secretary-Treasurer] Walpert's replacement as 'Election Officer' with such appointment to be made/approved by 'the IRB and President Hoffa'; (4) a 'complete accounting' of the alleged misuse of Union resources and; (5) 'A ballot form that is fair and neutral and not skewed to favor the Unity Slate.
R. 56. The Election Protest Committee determined that Rightnowar did not meet his burden " to provide a preponderance of reliable evidence that any members of the National Division Advisory Board or any members of the Unity Slate are in violation of the Election Rules in any respect." R. 64. A second pre-election protest, ND-2010-18, filed by letters dated November 15 and 16, 2010, alleged substantially similar violations. R. 65. The Election Protest Committee determined that the second protest was not timely filed and declined to consider it. R. 67-68. The Committee noted that it had considered the identical issues in ND-2010-17. R. 68.
On December 8, 2010, Rightnowar filed an appeal of the Election Protest Committee's decision in ND-2010-17. R. 78. Rightnowar asserted that union funds had been improperly used in connection with the activities of the Mobilization Network and the GOTV Drive. R. 79. Rightnowar also alleged that Unity Slate supporters were traveling on union time to engage in election activities. R. 79. Rightnowar also challenged the Election Protest Committee's determination that George Faulkner, rather than Walpert, was serving as Election Officer. R. 79. Finally, Rightnowar alleged that the current ballot was in violation of BLET By-laws. R. 79. On December 15, 2010, the BLET Advisory Board issued a Decision on Appeal on Rightnowar's pre-election protests ND-2010-17 and ND-2010-18. R. 82. The Advisory Board concluded that the Election
Protest Committee's decision was neither arbitrary nor capricious under the applicable rules and affirmed the decision. R. 85-86.
After the election, on January 12, 2011, plaintiffs filed a complaint with the Secretary asking that the election results be set aside. R. 409. (" Agency Complaint" ). The Agency Complaint, which stated that it was based on pre-election protests ND-2010-17 and ND-2010-18, alleged several violations of the LMRDA. R. 51. Plaintiffs alleged that " National Division officers running for election used union funds to 'get out the vote' in the officer election." R. 51. Plaintiffs also alleged that union funds were used to create a so-called Mobilization Network during the election period, which had a bias toward the Unity Slate. R. 52. Plaintiffs also alleged that railroad carrier funds were also used in setting up the Mobilization Network. R. 52. Plaintiffs further alleged that the incumbent candidates increased their official travel during the time they were running for office and were essentially campaigning on union funds, which was a misuse of union funds in violation of 29 U.S.C. § 481(g). R. 53. Plaintiffs also contended that a defunct publication, the Locomotive Engineers and Trainmen Journal was revived during the time period of the election solely for the purpose of supporting the incumbent officers. R. 54. Finally, plaintiffs argued that " the very form of the ballot was an 'advertisement' on behalf of the candidacy of the Unity Slate" because the ballot listed the names of the members of the ...