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Perez v. Amalgamated Transit Union Local 1700

United States District Court, District of Columbia

March 30, 2016

Thomas E. Perez, Secretary, U.S. Department of Labor, Plaintiff,
Amalgamated Transit Union Local 1700, Defendant.


Amit P. Mehta United States District Judge.


Defendant Amalgamated Transit Union Local 1700 (“Local 1700”) last held its triennial election of officers in November 2013. Despite the large number of ballots-almost 3, 000-sent to eligible members, some of the races turned on only a handful of votes. The smallest margin of victory was a mere 13 ballots.

Every eligible union member has a right to vote, and unions have a legal obligation to take reasonable steps to secure this right for each member. Here, the Secretary of the U.S. Department of Labor alleges that Local 1700 failed to ensure that certain members were given a fair opportunity to vote in the November 2013 election. Specifically, the Secretary contends that Local 1700 unlawfully encumbered the voting rights of 35 of its members when it failed to mail each of them a new ballot, after the ballots initially mailed to them were returned as undeliverable but affixed with expired forwarding addresses. Further, the Secretary argues that Local 1700’s failure to re-mail those 35 ballots affected the outcome of the election.

On July 25, 2014, the Secretary filed this suit alleging that Local 1700’s inaction violated Section 401(e) of the Labor-Management Reporting and Disclosure Act of 1959. He asks the court to declare void the previous election of union officers and direct the union to conduct a new election under the supervision of the Department of Labor. On June 6, 2015, Plaintiff and Defendant filed cross-motions for summary judgment.

Upon consideration of the parties’ submissions and the record evidence, the court grants Plaintiff’s Motion for Summary Judgment and denies Defendant’s Motion for Summary Judgment. The court will refrain from instituting a remedy, however, pending further briefing as described below.


A. Factual Background

Defendant Local 1700 (“Local 1700”) is a labor organization, which has approximately 3, 000 members, and is affiliated with the Amalgamated Transit Union. Mem. in Support of Def.’s Mot. for Summ. J. [hereinafter Def.’s Mot.], ECF No. 21, LX 3, Decl. of Sesil Rubain, ECF No. 21-5 [hereinafter Rubain Decl.], ¶¶ 1, 4. It represents “bus operators throughout the continental United States and Canada who work for Greyhound Lines, Inc.” Def.’s Mot. at 2; Rubain Decl. ¶¶ 1, 4. Pursuant to its bylaws, Local 1700 holds an election for officers every three years. Rubain Decl. ¶ 13. Its last election, conducted by mail ballot, began in November 2013 and concluded in December 2013. See Def.’s Mot., LX 15, ECF No. 21-17 [hereinafter Notice of Election], at 3-4.

1. Notification of Members Regarding the Election

Local 1700 made several different attempts throughout 2013 to notify its members about the upcoming election. In January 2013 and June 2013, Local 1700 distributed a notice-which mentioned the upcoming election-to union stewards, who were instructed to post the notice on bulletin boards at all Greyhound locations. Rubain Decl. ¶ 19; Def.’s Mot., LX 9, ECF No. 21-11 [hereinafter LX 9]; Def.’s Mot., LX 10, ECF No. 21-12 [hereinafter LX 10]. And in September 2013, Local 1700 posted a more detailed notice on its website. Def.’s Mot., LX 11, ECF No. 21-13 [hereinafter LX 11]. These notices informed members that they could update their mailing addresses in a variety of ways: by providing the updated information to a supervisor; telephoning or faxing the Local 1700 office; emailing the Financial Secretary/Treasurer Sesil “Wayne” Rubain; or visiting Local 1700’s website. Rubain Decl. ¶ 19; LX 9; LX 10; LX 11.

Local 1700 also used its organizational newsletter, “Solidarity Road, ” to advise members of the upcoming election. Rubain Decl. ¶¶ 21-22; Def.’s Mot., LX 12, ECF No. 21-14 [hereinafter LX 12]; Def.’s Mot., LX 13, ECF No. 21-15 [hereinafter LX 13]. The Spring 2013 edition apprised members that all Local 1700 Executive Board seats were up for election and detailed the election timeline. LX 12 at 2. The Fall 2013 edition similarly reminded members of the upcoming election and also urged them to update their contact information by calling or faxing Local 1700 or by changing their information on the Local 1700 website. LX 13 at 5.

Finally, on September 23, 2013-two weeks before the voting period began-Local 1700 sent a “Notice of Nomination and Election of Officers” (the “Election Notice”) to the most current mailing address on file for each member. Rubain Decl. ¶ 26; Notice of Election at 1. The Election Notice informed members that ballots would be mailed to them on November 8, 2013, and noted that “[a]ny member who does not receive a ballot by November 15, 2013 . . . will be able to . . . request a duplicate ballot.” Notice of Election at 3-4. Members further were told that their completed ballots would have to be received by Local 1700 on or before December 3, 2013, to be counted in the election. Id. at 4. The Election Notice did not explicitly remind members to update their addresses, nor did it provide information about how members might do so. See generally id. at 2-4. Of the 2, 799 Election Notices mailed, 132 were returned as undeliverable. Rubain Decl. ¶ 28.

2. Local 1700’s Mailing List

To send the mailings described above, as well as other membership updates, Local 1700 maintains a list of addresses for its members. Rubain Decl. ¶ 5. This list, known as the “Multi Union Membership System” (“MUMS”), generally is derived from contact information provided by union members to their employer, Greyhound. Id. ¶¶ 5, 7. Each month, the Local receives three updated files from Greyhound: a Dues Payment file; a Greyhound Driver Status Changes file; and a Non-Driver Employee Status Changes file. Id. ¶ 7. The latter two files (collectively, the “Monthly Report”), which contain the most current address information that Greyhound has on record, are imported into the MUMS system. Def.’s Opp’n to Pl.’s Mot. for Summ. J., ECF No. 25 [hereinafter Def.’s Opp’n], LX 24, Supplemental Decl. of Luke Franco, ECF No. 25-2 [hereinafter Suppl. Franco Decl.], ¶ 2. If the information listed in the Monthly Report differs from the information in MUMS, MUMS is overwritten and the Greyhound-provided address is input into the system instead. Id. ¶ 3.

Local 1700 also provides other means by which members can update their addresses with the union: they either can call or email the union or change their contact information on the Local 1700 website. Mem. of P. & A. in Support of Pl.’s Mot. for Summ. J. [hereinafter Pl.’s Mot.], ECF No. 18, Gov Exh 1, Dep. of Sesil Rubain, ECF No. 18-2 [hereinafter Rubain Dep.], at 17:21-18:8. These changes, however, are not necessarily permanent. If an employee does not also update Greyhound as to his new address, any changes entered into MUMS automatically will be overwritten at the end of the month by the un-updated address listed on the Monthly Report provided by Greyhound. Id. at 91:10-92:1; Suppl. Franco Decl. ¶ 6.

On several occasions, when Local 1700 has sent a mailing, it also has requested that the vendor hired to mail its materials review and verify the union’s mailing list. Pl.’s Mot., Gov Exh 16, ECF No. 18-17; Pl.’s Mot., Gov Exh 17, ECF No. 18-18; Pl.’s Mot., Gov Exh 18, ECF No. 18-19 [hereinafter Gov Exh 18]. For example, Local 1700 hired Rockman and Sons Publishing (“Rockman”) to mail the September 2013 Election Notice. Rubain Dep. at 40:15-20, 64:9-12. Before sending the Election Notice, Rockman used a computer software program to correct zip codes and verify the addresses on Local 1700’s mailing list. Id. at 66:17-20; Pl.’s Mot., Gov Exh 10, ECF No. 18-11. Rockman also ran a National Change of Address (NCOA) Report, which compared the union’s mailing list to postal service forwarding records and amended the mailing list accordingly. Pl.’s Mot. at 5-7; Gov Exh 18. The resulting revised addresses were used to send Local 1700’s mailing; they were not, however, used to update MUMS. Rubain Dep. at 68:21-69:10.

Notwithstanding Local 1700’s efforts to maintain an accurate mailing list, the U.S. Postal Service (“USPS”) sometimes returns mail to the union because it is undeliverable-i.e., the address is incorrect for some reason. Local 1700’s Financial Secretary/Treasurer Rubain is in charge of handling such mail. Rubain Decl. ¶ 9. His method for dealing with the mail depends on the reason that the mail was returned-whether it is (1) mail returned as undeliverable without a forwarding address, or (2) mailed returned as undeliverable with an expired forwarding address. Def.’s Mot., LX 22, ECF No. 21-24 [hereinafter LX 22], at 3-5; Def.’s Opp’n, LX 23, Supplemental Decl. of Sesil Rubain, ECF No. 25-1 [hereinafter Suppl. Rubain Decl.], at ¶¶ 10-15.

When Rubain receives the first type of returned mail-mail returned with no forwarding address-he rechecks the union member’s address in MUMS, and also consults the “Driver Roster, ” which is a list containing contact information for approximately 28, 000 past, present, and retired Greyhound drivers from 1993 to the present. Id. at 4; Rubain Decl. ¶ 8; Rubain Dep. at 26:1-8, 72:22-73:12. The Driver Roster is compiled by Greyhound’s Driver Planning Department and is provided to Local 1700 every week through a website link; it is separate from the Monthly Report also provided by Greyhound. LX22 at 4. If the address used for Local 1700’s mailing differs from the address listed on the Driver Roster, Rubain re-mails the document to the address listed on the Roster and updates MUMS accordingly. Id. at 4-5. If the address used for Local 1700’s mailing is the same as the address listed on the Driver Roster, Rubain consults MUMS to determine whether an updated address had been received from Greyhound. Id. at 4.

The second category of returned mail-mail returned with an expired forwarding address-requires additional explanation. The USPS will forward mail from an old address to a new address only for a period of one year.[1] After one year, any mail sent to the old address will be returned to the sender as undeliverable and, in some cases, the returned envelope will note the forwarding address on file with the USPS. Upon receipt of such returned mail, Rubain turns to the same references as he would if he had received the first type of mail. First, he looks up the member’s address in MUMS to determine when the address was last updated. Suppl. Rubain Decl. ¶ 13. He then checks the most recent Driver Roster. Id. If the address in MUMS is less than six months old and matches the address in the Driver Roster, Rubain’s practice is to treat the MUMS address as the “most current address” and not resend the mail to the expired forwarding address. Id. If, ...

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