Case 8:16-cv-02052-GJH Document 13-1 Filed 01/12/17 Page 1 of 35

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND
THOMAS PEREZ,
SECRETARY OF LABOR,

:
:

Plaintiff,
:
v.

Civil No. GJH-16-2052

:

LOCAL 689, AMALGAMATED

TRANSIT UNION,

Defendant.

:
:
...o0o...
MEMORANDUM IN SUPPORT OF
PLAINTIFFS MOTION FOR SUMMARY JUDGMENT
Table of Contents

I.

Introduction and Procedural Posture ..............................................................3

II.

The LMRDA ..................................................................................................5

A. General Standards & Uniformity Requirements ............................................5
B. Notice Requirements .....................................................................................9

III.

Facts ...............................................................................................................11
A. Constitution and Bylaws ................................................................................11
1. Fifteen-Day Notice.....................................................................................11
2. Good Standing Provisions..........................................................................11
B. The December 2, 2015 General Election .......................................................13

IV.

Argument .......................................................................................................15
A. The Local Failed to Send the Election Notice ..............................................15
Fifteen Days Before the Election
1. The Local Violated the LMRDA .................................................15

Case 8:16-cv-02052-GJH Document 13-1 Filed 01/12/17 Page 2 of 35

2. The Local Also Violated its Own Constitution and Bylaws ..................16
B. Local 689 Unreasonably Applied Its Alternative Officer Candidacy ............18
Requirements and Failed to Announce Them to the Membership
1. Blanket Waiver Of Good-Standing Rules for ..............................19
Arrearages Of Less Than Two Months
2. The Locals Secret Standards for Arrearages ..............................20
Greater Than Two Months
3. The Locals Non-Uniform Application of its ..............................24
Standards for Arrearages Greater Than Two Months
a. The October 9 Letter Constituted ..............................24
an Alternate Payment Plan
b. Payment Plans Were Not Uniformly .........................26
Applied to Nominees
C. The Violations Affected The Outcome of the Election .................................31
V.

Conclusion .....................................................................................................35

Case 8:16-cv-02052-GJH Document 13-1 Filed 01/12/17 Page 3 of 35

The plaintiff, the Secretary of Labor, has moved for summary judgment. For the reasons
that follow, the motion should be granted.
I.

Introduction and Procedural Posture

This action is brought by the Secretary pursuant to Title IV of the Labor-Management

Reporting and Disclosure Act of 1959, as amended, 29 U.S.C. 401, et seq., (LMRDA or
Act), which governs the conduct of union officer elections. This case arises from challenges
made by members of Local 689 of the Amalgamated Transit Union to a general election held on
December 2, 2015 for officer positions, including the President and Executive Board, in Local
689. Members of Local 689 (the Local) of the Amalgamated Transit Union (ATU) first
complained to the Local about the election. After the newly-elected Executive Board rejected
the complaints, the Local put the complaints to a vote of the membership at a meeting in January
2016. There, the membership voted to re-run the election. The newly re-elected President of the
Local forestalled implementation of that membership decision by appealing the decision to the
International. To this day, the International has not acted on the complaints.
As contemplated by the LMRDA, 29 U.S.C. 481-484, when the Local Presidents
appeal to the International ended the effort to re-run the election, the members complained to the
Secretary. The Secretary investigated the complaints, found probable cause to believe that
violations of Title IV of the Act had occurred, and initiated this law suit to remedy the violations.
The Secretary has now moved for summary judgment because there is no genuine dispute of
material fact and the Secretary is entitled to judgment as a matter of law.
The record entitles the Secretary to judgment for three reasons. First, the Local violated
section 401(e) of the LMRDA, 29 U.S.C. 481(e), because it failed to give notice of the election
as required by the Act, 11(b) of Local 689s Bylaws, and 14.7 of the Constitution and General

Case 8:16-cv-02052-GJH Document 13-1 Filed 01/12/17 Page 4 of 35

Laws of the Amalgamated Transit Union (CGL). Each required that the Local mail its election
notice to members at least 15 days prior to the election. The Local, however, failed to comply,
mailing its Election Guides containing the notice of election to the membership on November 18,
2015, only fourteen days before the election.
Second, the ATU and the Local published rules and standards in the CGL and Bylaws
governing elections, including qualifications to run for office. The record establishes that instead
of following these rules and standards, the Local unreasonably applied a conflicting set of
unpublished, alternative standards which were not announced to the Locals membership. These
standards loosened the criteria by which members could qualify to run for office. A member of
the Local who relied on the CGL and Bylaws had no way of knowing about the existence of
these alternate standards. These alternate standards were spread, at best, by word of mouth.
Members who happened to learn of them could try to take advantage of them. Members
unaware of them could not.
Finally, looking to the manner by which the Local implemented even these alternative
procedures, the uncontradicted evidence demonstrates that the Local did not apply them
uniformly. Similarly situated members were treated differently. Members who, even under
these alternate procedures, were not qualified to run for office were allowed to run. Other
similarly situated members were not permitted to run for office, creating a situation where even
these alternate rules were enforced in a non-uniform manner.

Case 8:16-cv-02052-GJH Document 13-1 Filed 01/12/17 Page 5 of 35

II.

The LMRDA

A. General Standards and Uniformity Requirements

In response to findings of extensive corruption and improper fiscal and electoral practices
by labor unions, Congress passed the LMRDA in 1959. The LMRDA injected into the preexisting scheme of self-regulation an unprecedented dose of federal regulation of the internal
affairs of labor organizations. Title IV implements a federal guarantee of free and democratic
unionism. Marshall v. Intl Assn of Machinists, Local Lodge 1784, 509 F. Supp. 90, 93-94 (D.
Md. 1981)(Miller, J.). Section 401 of LMRDA, 29 U.S.C. 481, is a core provision. It
establishes procedural safeguards for the conduct of union elections, and for the exercise of
candidacy and voting rights by union members. Usery v. Local Union No. 639, Intern. Broth. of
Teamsters, 543 F.2d 369, 373-374 (D.C. Cir. 1976).
Congress wished to maximize union democracy at minimal cost to unions institutional
effectiveness. Hence it vested primary enforcement responsibility for Title IV in the Secretary of
Labor and provided an exclusive post-election remedy under the Secretary's stewardship. The
principal goal of Title IV of the LMRDA is to insure fair and democratic [union] elections.
Wirtz v. Local 153, Glass Bottle Blowers, Assn, 389 U.S. 463, 470 (1968); Wirtz v. Hotel,
Motel and Club Employees Union, Local 6, 391 U.S. 492, 496 (1968). The Act was a response to
Congressional investigations that revealed corruption in union leadership and disregard for rankand-file members. See LMRDA 2(b), 29 U.S.C. 401(b); S. Rep. No. 187, 86th Cong., 1st
Sess., reprinted in, 1959 U.S. Code Cong. & Admin. News 2318-2321. Through the LMRDA,
Congress sought to protect the rights of rank-and-file members to participate fully in the
operation of their union through processes of democratic self-government, and through the
election process ... . Hotel Employees, Local 6, 391 U.S. at 497; Local 153, Glass Bottle

Case 8:16-cv-02052-GJH Document 13-1 Filed 01/12/17 Page 6 of 35

Blowers, 389 U.S. at 469-471. Recognizing that free and fair elections were essential to union
self-government, Congress enacted the safeguards of Title I and Title IV of the LMRDA to
provide a fair election and guarantee membership participation. American Federation of
Musicians v. Wittstein, 379 U.S. 171, 182 (1964); Wirtz v. American Guild of Variety Artists,
267 F. Supp. 527, 544 (S.D.N.Y. 1967) (Congress intended unions to conduct democratic and
scrupulously fair elections).
The Supreme Court described the policies underpinning the LMRDA: the basic objective
of Title IV of the LMRDA is to guarantee free and democratic union elections modeled on
political elections in this country where the assumption is that voters will exercise common
sense and judgment in casting their ballots. Local 3489, United Steelworkers v. Usery, 429
U.S. 305, 309 (1977)(citing and quoting Hotel Employees, Local 6, 391 U.S. 492, 504 (1968)).
Title IV is not designed merely to protect the right of a union member to run for a particular
office in a particular election. Congress emphatically asserted a vital public interest in assuring
free and democratic union elections that transcends the narrower interest of the complaining
union member. Id. (citing and quoting Hotel Employees, Local 6, 391 U.S. at 475). Congress
sought to protect the rights of rank-and-file members to participate fully in the operation of their
union through processes of democratic self-government, and, through the election process, to
keep the union leadership responsive to the membership. Id.; Marshall v. Local Lodge 1784,
509 F. Supp. at 94.
Certain LMRDA provisions concerning pre-election union conduct, including section
401(c), are enforceable in suits brought by individual union members. Provisions concerning
the conduct of the election itself, however, may be enforced only according to post-election
procedures specified in section 402. 29 U.S.C. 482; Dunlop v. Bachowski, 421 U.S. 560, 566

Case 8:16-cv-02052-GJH Document 13-1 Filed 01/12/17 Page 7 of 35

(1975); Local Union No. 639, 543 F.2d at 373-374. Those post-election procedures are as
follows: a union member must first invoke his internal union remedies. If he is unable to obtain
a final resolution within three months of his invocation of remedies, he may file a complaint with
the Secretary. Osuchukwu v. Rouse, Civil No. CCB-10-1894, 2010 WL 4285008, at *3 (D. Md.
2010)(Blake, J.). If upon investigation the Secretary finds probable cause to believe a violation
of Title IV has occurred and has not been remedied, the statute requires the Secretary to bring
suit in district court, within sixty days of the complaint, to set aside the election. If the court
determines upon a preponderance of the evidence that the violation may have affected the
outcome of an election, it is directed to declare the election, if any, 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 union's constitution and bylaws. After the supervised
election is held, [t]he Secretary shall promptly certify to the court the names of the persons
elected, and the court shall thereupon enter a decree declaring such persons to be the officers of
the labor organization. Local Union No. 639, 543 F.2d at 373-374; Osuchukwu v. Rouse, 2010
WL 4285008, at *3.
Section 401(e) provides that every member in good standing shall be eligible to be a
candidate and to hold office (subject to section 504 and to reasonable qualifications uniformly
imposed). The Secretarys interpretative regulation addresses reasonable candidacy
qualifications that are applied in an unreasonable manner:
Qualifications for office which may seem reasonable on their face may not be
proper if they are applied in an unreasonable manner or if they are not applied in a
uniform way. An essential element of reasonableness is adequate advance notice
to the membership of the precise terms of the requirement. A qualification which
is not part of the constitution and bylaws or other duly enacted rules of the
organization may not be the basis for denial of the right to run for office, unless
required by Federal or State law. Qualifications must be specific and objective.
They must contain specific standards of eligibility by which any member can
7

Case 8:16-cv-02052-GJH Document 13-1 Filed 01/12/17 Page 8 of 35

determine in advance whether or not he is qualified to be a candidate. For

example, a constitutional provision which states that a candidate shall not be
eligible to run for office who intends to use his office as a cloak to effect purposes
inimical to the scope and policies of the union would not be a reasonable
qualification within the meaning of section 401(e) because it is so general as to
preclude a candidate from ascertaining whether he is eligible and would permit
determinations of eligibility based on subjective judgments. Further, such a
requirement is by its nature not capable of being uniformly imposed as required
by section 401(e).
29 C.F.R. 452.53 (emphasis added).
Where a union applies eligibility standards not previously announced to the membership,
courts order new elections. Thus, in Herman v. NY Metro Area Postal Union, 30 F. Supp. 2d
636, 645-46 (S.D.N.Y. 1998), the incumbents disqualified the entire challenger slate because the
slate submitted its nominees social security numbers and addresses to the election committee the
day after nominations ended. Id. The court found that although the nominee information and
deadline bylaws were facially reasonable, they were improperly applied because the union only
announced at the nomination meeting itself that the information was due by the end of that
meeting. Citing 29 C.F.R. 452.53, the court held that a deadline that was not announced in
advance could not be used to disqualify candidates because [c]ompliance with an insufficiently
disclosed requirement is not a reasonable qualification for candidacy that allows union
members a reasonable opportunity to run for office. Id. at 646.
Not only must qualifications be announced, they must also be uniformly enforced. Brock
v. International Org. of Masters, Mates & Pilots, 842 F.2d 70, 73 (4th Cir. 1988).
Qualifications can lack uniformity either on their face or as applied. Donovan v. CSEA Local
Union 1000, 761 F.2d 870, 875 (2d Cir.1985) (selection of nominees by committee which
automatically placed incumbents on the ballot and alternatively required non-incumbents to
gather a petition in order to run, not uniformly imposed because of subjectivity of committee and

Case 8:16-cv-02052-GJH Document 13-1 Filed 01/12/17 Page 9 of 35

unreasonable burden on those using the alternative petition procedure); Donovan v. Local Union
No. 120, 683 F.2d 1095, 1104 (7th Cir.1982) (competency requirement was subjective and
incapable of uniform application); Wirtz v. National Maritime Union of America, 399 F.2d 544,
548 (2d Cir.1968) (only non-incumbents had to personally obtain forms to allow them to run).
Where, as in Masters, Mates and Pilots, the rules are uniformly applied, and adequate advance
notice of the rules is given to the membership, the action will be allowed.
B. Notice Requirements
As regards notice to the membership of elections, section 40l (e) of the Act requires that
[n]ot less than fifteen days prior to the election notice thereof shall be mailed to each member
at his last known home address. 29 U.S.C. 481(e). The requi r em ent to mail election
notices is a clear and unambiguous requirement under the statute, one not excused by the
otherwise apparent reasonableness of the unions conduct. Chao v. Local 54, Hotel Employees
& Rest. Employees Intl Union, 166 F. Supp. 2d 109, 114 (D.N.J. 2001) ([t]he language of
Section 401 supports a strict application of its notice provisions.); Brock v. Am. Postal Workers
Union South Jersey Area Local 526, 1986 WL 15272, at *3-4, (D.N.J. 1986) (granting summary
judgment because union failed to mail election notices and ballots to two members); Dole v.
Local 492, Bakery, Confectionery, and Tobacco Workers Intl Union, 1989 WL 126182, at *4
(E.D.Pa.1989); Marshall v. Office and Professional Employees Union Local 2, 505 F. Supp.
121, 123 (D.D.C.1981).
The legislative history of the Act confirms Congress intent that fifteen days serve as a
statutory threshold for notifying members of an election:
I am trying to make certain that every union member will receive a written notice
at least 15 days before an election is to be heldSo I think it is very little to
require that the a [sic] union mail a postal card notice 15 days before an election
of officers is to be held, to remind the membership and to notify the membership
9

Case 8:16-cv-02052-GJH Document 13-1 Filed 01/12/17 Page 10 of 35

that the election is to be held. That is not asking very much.

Cong. Rec. S15189 (1959)(statement of Sen. Dodd). Congress thus enacted 401(e) of the Act,
which requires that not less than fifteen days prior to the election notice thereof shall be mailed
to each member at his last known home address. 29 U.S.C. 481(e).
To clarify the duty of the union with respect to the requirements of Section 401(e),
the Secretary promulgated interpretive regulations which explain that:
For purposes of computing the fifteen day period, the day on which the notices
are mailed is not counted whereas the day of the election is counted. For
example, if the election is to be held on the 20th day of the month, the notices
must be mailed no later than the 5th day.
29 C.F.R. 452.99. The regulations also state that: (a) transmission by mail is required, as
opposed to any other form of notice like bulletin board postings; (b) the notice must be sent to
every member as defined by section 3(o) of the Act; and (c) must specify the polling date, time
and place, as well as the officer positions to be run. Id.
Finally, section 40l(e) of the Act also requires unions to conduct their elections in
accordance with the constitution and bylaws of such organization. 29 U.S.C. 481(e). The
Secretarys regulations reiterate the requirement that unions conduct elections according to their
constitution and bylaws. 29 C.F.R. 452.2, 452.109. Failure to adhere to section 401(e) of
the Acts mandate that unions comply with their constitution and bylaws constitutes grounds to
overturn an election and order it to be re-run under the Secretarys supervision. Reich v. Int'l
All. of Theatrical Stage Employees & Moving Picture Mach. Operators of U.S. & Canada, 32
F.3d 512, 515 (11th Cir. 1994) (The Secretary is obligated to file suit if he concludes that a
union has failed to conduct its officer elections in accordance with its constitution.).

10

Case 8:16-cv-02052-GJH Document 13-1 Filed 01/12/17 Page 11 of 35

III.

Facts

Local 689 is the collective bargaining representative for about 13,535 active and retired
bus operators, train operators, station managers, maintenance employees, and clerical employees
of the Washington Metropolitan Area Transit Authority and three paratransit contractors.
Exhibit 26, answer to interrogatory 19 (Local 03393-03396). Approximately 570 members
reside outside the areas of Maryland, Washington, D.C., and Northern Virginia. Exhibit 26
answer to interrogatory 20 (Local 03399-03426). It is a labor organization subject to the union
officer election provisions contained in Title IV of the LMRDA, including section 401(e), 29
U.S.C. 481(e), which requires unions to mail proper election notices to all members at their last
known home address at least fifteen days prior to election. Exhibit 25, admissions 1 & 2.
A. Constitution and Bylaws
1. Fifteen-Day Notice
Consistent with the Departments regulations at 29 C.F.R. 452.99, the CGL requires that:
[a]t least 15 days notice of any election must be mailed to each [Local Union] member at the
members last known home address. This notice shall include a specification of the date, time
and place of the election and of the offices to be filled. Exhibit 1, 14.7, at 61. The Locals
Bylaws mirror section 401(e), providing, Not less than fifteen (15) days prior to any election,
notice thereof shall be mailed to each member at their last known address. Exhibit 2, 11(b)
(Local-03667).
2. Good-Standing Provisions
The CGL provides that in order to run for office, a member must be in continuous good
standing for the two years preceding the election.
Members to be eligible to run for office in an [Local Union] must have complied with the
provisions of this Constitution and the bylaws of the [Local Union]. A member to be
11

Case 8:16-cv-02052-GJH Document 13-1 Filed 01/12/17 Page 12 of 35

eligible to [sic] office must have been a member in continuous good standing of his or her
[Local Union] the two (2) years next preceding the day of the nomination meeting where
the [Local Union] has been in existence for that period or longer.
Exhibit 1, 14.2, at 55-56. The Bylaws of Local 689 are to the same effect:
Every member in good standing shall be eligible to be a candidate and to hold any office
or position described in Section 7 hereof, provided that they have been a member in
continuous good standing in Local Union 689 for a period of at least two (2) years next
preceding the day of the nomination meeting.
Exhibit 2, 8(a) (Local-03657).
According to the CGL, a member who fails to pay dues is no longer in good standing.
The CGL provides that all dues, fines and assessments are due and payable on the first (1st)
day of each month. Exhibit 1, 21.9, at 94. Dues, fines and assessments must be paid by the
fifteenth (15th) day of the month in order to continue the member in good standing. Id. Thus,
[m]embers in arrears for dues, fines and assessments after the fifteenth (15th) day of the month
are not in good standing . Id.
The CGL provides that where a members arrearage of dues, fines and assessments
(hereinafter dues) continues for two months, the member has suspended himself from the
Local. Where the member is in arrears for dues, fines and assessments, and such arrearage has
reached the last day of the second (2nd) month, the member shall be reported to the [Local Union]
as having suspended him or herself from membership by the non-payment of dues, fines and
assessments. Exhibit 1, 21.10, at 96. Members who have suspended themselves for nonpayment of dues and who desire reinstatement into the Union within 12 months after they
become in arrears may do so by paying the arrearage and paying a $1 per month fee for each
month of arrearage. Id. at 97. Members whose arrearages exceed 12 months cannot reinstate
themselves; they must be re-enrolled as a new member. Id. at 98.

12

Case 8:16-cv-02052-GJH Document 13-1 Filed 01/12/17 Page 13 of 35

B. The December 2, 2015 General Election

Every three years, Local 689 holds a general election for all offices. The most recent
general election, and the one at issue here, occurred on December 2, 2015. Prior to the election,
the Local sent letters to members whose dues were in arrears. These letters were dated October
9, 2015 and read as follows:
The Union has been reconciling our records and it has come to our attention that you are
currently suspended due to being in arrears on your dues. Our records indicate that you
owe $730.78 in past dues.
WMATAs Office of Payroll will deduct an additional $61.40 weekly from your
paycheck until the past dues amount is satisfied. Unfortunately, because you are more
than two months behind in your dues (currently $122.80), per the ATU International
Constitution, Section 21.9 and 21.10 you have been suspended.
Please contact the Office of the Financial Secretary-Treasurer at 301-568-6899 ext. 8210
if you have any questions concerning this matter.
Exhibit 3. Many letters went out; they were identical but for the amount of the arrearage. The
Local sent this letter to all members it could identify who were in arrears more than two months.
Exhibit 24 at 145.
Nominations for candidates occurred on November 3-4, 2015. Members not in good
standing as of the date of the nomination meetings could neither nominate a fellow member for
office nor run for office.
Following the nomination meetings, the Local sent out letters dated November 18, 2015
to members. The Local sent two versions of the letter, but each version confirmed the recipients
eligibility to vote in the election. One version read:
This is a follow up correspondence to the October 9, 2015 letter regarding your
dues. We appreciate all who have assisted in this process. We want to thanks [sic] those
that have made payment arrangements with the Local. For those not electing to make
payment arrangements, we will begin the process of notifying payroll to take the
appropriate actions in collecting the balance of dues amounts still owed.

13

Case 8:16-cv-02052-GJH Document 13-1 Filed 01/12/17 Page 14 of 35

We also wish to confirm your eligibility to vote in the upcoming 2015 General Election.
Exhibit 7. The other version of the letter was similar:
This is a follow up correspondence to the October 9, 2015 letter regarding your
dues. We appreciate all who have assisted in this process. We especially want to thank
you and express our appreciation for your willingness to help us resolve issues with your
dues. You have paid in full and are in good standing with the Local.
We also wish to confirm your eligibility to vote in the upcoming 2015 General Election.
Exhibit 8.

Every member who received an October 9 letter received a version of the November

18 letter. Exhibit 24 at 146, 147, 150-151.

Also on November 18, 2015, Local 689, through its agent Doyle Printing, printed the
Local 689 Election Guide, which constitutes the only membership notice containing the date,
time, and polling locations, as well as the officer positions to be run, to the membership for the
December 2, 2015 election. Exhibit 31; exhibit 4 at 169-170, 180. AccuMail received the
election guides from Doyle Printing on November 18, 2015, and mailed the election guides to
the membership on the same day. Exhibit 32; exhibit 4 at 168, 178.
The election was conducted on December 2, 2015, fourteen days after the election notices
were mailed. The results of the election are at Exhibit 21. The largest margin of victory with
respect to the election for officers was for Maintenance and Construction At-Large Executive
Board Member #3 with a 930-vote lead; the smallest margin of victory was eleven votes for
Bladensburg Division Executive Board Member # 2.

14

Case 8:16-cv-02052-GJH Document 13-1 Filed 01/12/17 Page 15 of 35

IV.

Argument

A. The Local Failed to Send the Election Notice Fifteen Days Before the Election
The Local violated the bright-line requirement found in both the LMRDA and in its own
CGL and Bylaws to send an election notice to the membership 15 days before the election. The
Act, the CGL, and the Bylaws all require the Local to give adequate notice of the election -including the time, date, place and offices under consideration -- to members prior to an
election. The uncontradicted evidence is that the Local failed to give notice as required.
1. The Local violated the L M R D A
Section 401(e) of the Act expressly requires unions to mail election notices to each
member at least fifteen days preceding the election. The Departments interpretative
regulations explain that to calculate the fifteen-day period, the day on which the notices are
mailed is not counted whereas the day of the election is counted. 29 C.F.R. 452.99. Thus,
the election notices should have been mailed by November 17, 2015, to be timely for the
December 2, 2015 election. The uncontradicted evidence establishes, however, that the election
notice was mailed on November 18, 2015, only fourteen days before the election was held.
In its Answer to the Complaint before this Court, the Local claimed that the Secretary
did not provide a credible explanation as to how the Defendant caused a delay in mailing
election notices and cannot prove that Defendant is liable even if a delay can be demonstrated.
ECF 3 at 36. However, the Local does not dispute that Doyle Printing and Accumail acted as
its agents in fulfilling its obligation under the LMRDA to mail election notices. It is axiomatic
that the Local is responsible for the conduct of its agents. Marshall v. Local No. 2, Int'l Union
of Police & Prot. Employees-Indep. Watchman's Assn, No. 78 Civ. 3879-CSH, 1979 WL
1832, at *5 (S.D.N.Y. Jan. 5, 1979) (while a union can appoint an agent to handle these
15

Case 8:16-cv-02052-GJH Document 13-1 Filed 01/12/17 Page 16 of 35

mailings, and perhaps even indicate all requests therefor be directed to that agent, the statutory
responsibilities remain with the union.); Wirtz v. American Guild of Variety Artists, 267 F.
Supp. 527, 541 (S.D.N.Y. 1967) (union cannot escape responsibility for a failure to comply
with its duties under the LMRDA when it retains another party to conduct the election). Both
29 C.F.R. 452.99 and the CGL require election notices to specify the polling date, time and
place, as well as the officer positions to be run. The Local 689 Election Guide was the only
notice mailed to the membership that included all of these pieces of information about the
election. Exhibit 4 at 180. Indeed, the Local admitted that it used a third party to mail the
Local 689 Election Guide to members and that it was mailed out only fourteen days before
the election. Exhibit 25 admissions 3 and 5.
The Act does not require any showing of bad faith or motive to impute liability to a labor
organization. As this court has recognized, [t]he violation of this statute does not hinge upon
motive of the violator. Solis v. Local 9477, United Steelworkers, 798 F. Supp. 2d 701, 704-705
(D. Md. 2011) (Bredar, J.) (granting summary judgment where union failed to meet its burden in
rebutting Secretarys prima facie case on effect on outcome). Given the uncontested facts
regarding mailing of the election notice, summary judgment in favor of the Secretary is
warranted on this basis alone.
2. The Local Also Violated its Own Constitution and Bylaws
Section 401(e) of the Act requires that a union conduct its elections in accordance with
the constitution and bylaws of such organization. Moreover, the Secretarys regulations
reiterate the requirement that unions conduct elections according to their constitution and
bylaws. See 29 C.F.R. 452.2, 452.109. Courts have also recognized that unions must follow
their constitution and bylaws when conducting their elections under a variety of circumstances.

16

Case 8:16-cv-02052-GJH Document 13-1 Filed 01/12/17 Page 17 of 35

Hodgson v. Electrical Workers, Local 485, 503 F.2d 219, 222 (2d Cir. 1974) (overturning
election where individuals ineligible for candidacy under union constitution were permitted to
run for union office); Marshall v. Postal Workers, 486 F. Supp. 79, 82 (D.D.C. 1980); Brennan
v. Local 300, Laborers, 85 L.R.R.M 2648, 2651 (C.D. Cal. 1974) (finding violation where
union failed to follow candidate qualification procedure and voting procedure as provided in its
constitution). If a local labor organization fails to conduct its elections in accordance with the
constitution and bylaws of the international labor organization to which it is subordinate, the
court should overturn the election and order a new supervised election to be held in accordance
with the international constitution. Dole v. Local 212, Int'l Bhd. of Elec. Workers, No. C-1-871042, 1990 WL 102795, at *10-11 (S.D. Ohio Mar. 30, 1990) ( supervised election ordered
where local union failed to follow international bylaw on voter eligibility); Hodgson v. Internl
Union of Elec., Radio and Mach. Workers, Local 485, 503 F.2d 219, 223 (2d Cir. 1974); Vestal
v. Hoffa, 451 F.2d 706 (6th Cir.1971), cert. denied, 406 U.S. 934 (1972).
The Locals tardiness in mailing the election notice violated section 401(e) of the Act
because it contravened the CGLs and Bylaws requirements for mailing local election notices.
Section 11(b) of the Bylaws provides, Not less than fifteen (15) days prior to any election,
notice thereof shall be mailed to each member at their last known address. Exhibit 2 at 24.
Section 14.7 of the CGL agrees that: [a]t least 15 days notice of any election must be mailed
to each [Local Union] member at the members last known home address. This notice shall
include a specification of the date, time and place of the election and of the offices to be filled.
Exhibit 1 at 61.
The Local cannot reasonably argue that either the CGL or the Bylaws can be interpreted
to calculate fifteen days differently than DOLs regulations. 29 C.F.R. 452.99. The day of

17

Case 8:16-cv-02052-GJH Document 13-1 Filed 01/12/17 Page 18 of 35

mailing cannot be counted in the fifteen-day notice period because standard postal mail does
not deliver on the same day. There is no other feasible interpretation of a fifteen-day notice
period that would make the Locals November 18, 2015 mailing timely for the election on
December 2. Therefore, just as the court should enforce the fifteen-day minimum set forth in
the statute and regulations, it should overturn the election based on the Unions failure to
conduct the election in accordance with the constitution and bylaws.
B. Local 689 Unreasonably Applied its Alternative Officer
Candidacy Requirements and Failed to Announce Them to the Membership
Local 689 failed to provide members a reasonable opportunity to run for office because it
did not uniformly apply its good standing requirements for candidacy. The CGL and the Bylaws
articulated a set of standards about who could run for office. To run for office, members must
have been in continuous good standing for the past two years. Exhibit 1, 14.2, at 55-56; exhibit
2, 8(a); see supra at 11-12. To be in good standing, a member had to be current in his dues.
Dues were owed on the first of the month and a member who failed to pay dues by the fifteenth
of the month was not in good standing. Exhibit 1, 21.9, at 94. If the dues arrearage continued
for two months, the member was considered suspended and could reinstate himself only upon
payment of the arrearage plus a reinstatement fee. Exhibit 1, 21.10, at 96-97. If the dues
arrearage continued for over one year, the member could no longer reinstate himself, but had to
be re-enrolled as a new member. Exhibit 1, 21.10, at 98.
Members reading the CGL and Bylaws could reasonably understand these requirements
for office. The CGL and Bylaws on their face articulated a clear and understandable regime.
Such was the regime with which the President of the Local, Jackie Jeter, expected members to be
familiar:

18

Case 8:16-cv-02052-GJH Document 13-1 Filed 01/12/17 Page 19 of 35

I have a very Draconian way of looking at your responsibility as a candidate. You

are supposed to know what the Constitution says.
If youre going to run for office, then it is your responsibility to know the rules
and regulations surrounding running.
Exhibit 6 at 48. Accord exhibit 6 at 61 (And as I said, if you were running for office, you
should know what [the CGL] said. And that is not an arrogant position. That is the position
of a person who is running for office. There are some things a person should just know.).
In practice, however, the Local followed a different set of rules that were not published in
its constitution, bylaws, or other duly enacted rules as provided by 29 C.F.R. 452.53.
Testifying as a Rule 30(b)(6) designee for the Local, the long-standing Financial SecretaryTreasurer (FST), Esker Bilger, testified that the Local departed from the CGL and Bylaws in
multiple ways without providing adequate advance notice to the membership at large.
1. Blanket Waiver Of Good-Standing Rules For Arrearages
Of Less Than Two Months
The CGL provided that a member in arrears of any dues -- that is any time dues were late
and not paid by the fifteenth day of the month -- was not in good standing. FST Bilger testified
that the Local did not enforce this provision. Exhibit 4 at 10-12, 22. The Local simply ignored
this CGL provision and considered all members in good standing until the arrearage exceeded
two months, when the member suspended himself.
The Local did not announce to its members that it waived the continuous good standing
requirement for members in arrears of less than two months. Exhibit 4 at 10-12, 22. Nowhere
did the Local publish the fact that it would consider members with arrearages of up to two
months in good standing for the purpose of running for office. Exhibit 4 at 22-23. A member
who relied on the CGL and Bylaws and knew he had missed as much as one dues payment

19

Case 8:16-cv-02052-GJH Document 13-1 Filed 01/12/17 Page 20 of 35

would know he was not in good standing and would have no reason to participate in the
nomination process, either as a nominee or candidate.
2. The Locals Secret Standards for Arrearages Greater
Than Two Months
The waiver of specific candidacy requirements without notice to all members is
equivalent to the imposition of a different set of qualifications that were not part of the
constitution and bylaws and may not be the basis for denial of the right to run for office. See
29 C.F.R. 452.53. The CGL provided that all dues, fines and assessments of the members of
this [International Union] are due and payable on the first (1st) day of each month for that month
. Exhibit 1, 21.9, at 94. According to the CGL, a member who failed to pay dues for over
two months has suspended himself. To come back into good standing, the CGL required that
member to pay the arrearage plus a reinstatement fee. No exception to this requirement appears
in either the CGL, the Bylaws, or any other document governing elections for this Local.
Nothing in the CGL or Bylaws state that members may continue good standing by paying less
than all dues, fines and assessments they owe to the Local. However, the Local permitted a few
members who were actually able to contact the Local successfully after receiving the October 9
letter to continue in good standing without having to pay their arrearages in full. While the
October 9 letter said nothing about options to paying full arrearages prior to nominations, to
those members who serendipitously succeeded in speaking with him, FST Bilger offered the
opportunity to waive the CGLs pay-in-full requirement by entering into a payment plan, an
option found nowhere in the CGL or Bylaws and announced at no time to the membership.
Payment plans that FST Bilger entered into with these few discrete members who
managed to contact him were documented on a new form that he devised and that the Local used
for the first time in this election cycle. Exhibit 28. The payment plan was, in effect, a promise
20

Case 8:16-cv-02052-GJH Document 13-1 Filed 01/12/17 Page 21 of 35

by the member to make periodic payments. As FST Bilger explained, what mattered for the
Local was not that the member actually paid, it was that the member at the moment in time that
the payment plan was implemented, had a payment plan. At that snapshot in time, the member
was considered in good standing, irrespective of whether the member later complied with the
plan or not. Exhibit 4 at 131-136. No uniform set of standards applied to the payment plan
terms. The Local did not require minimum payment amounts or specify the date by which
payments must satisfy the arrearage. A review of these payment plans shows that each was
unique. Exhibit 29. Indeed, the uncontradicted evidence is that many such payment plans were
either fulfilled only months after the election or not fulfilled at all. Exhibit 4 at 109-113 (FST
Bilger discussing examples); exhibit 29.
Nowhere did the Local articulate to the membership that a member in arrears could return
to good standing without having to pay in full. Nowhere did the Local tell its members that they
could avoid the pay-in-full requirement of the CGL by entering into a payment plan. No
publication by the Local advised members who received a letter telling them that they were in
arrears and not in good standing that a procedure existed by which they could come into good
standing by making only a partial payment along with a promise to pay instead of full payment.
Exhibit 4 at 29-31. None of the Locals periodic newsletters contained this information. For all
that recipients of the October 9 letters understood, the Local would require them to pay the
arrearage in full in order to come into good standing.
Brent Loughry, a member who often worked for the Local by helping with the Locals
computerized dues records systems and who was personally involved in the preparation of the
October 9 letter, testified that he was not aware of the existence of alternate payment plans:
Q. For the October 9 letter, were you involved in you told us how you did the
merging?
21

Case 8:16-cv-02052-GJH Document 13-1 Filed 01/12/17 Page 22 of 35

A. The mail merge, yes.

Q. Did you get involved in the language of the letter?
A. I think I saw a spelling error, and maybe you know, I mean someone else
wrote the letter, and I may have edited something to fix something.
Q. Okay. The letter doesnt say anything about a payment plan, does it?
A. No. I wasnt aware of a payment plan.
Q. Or alternate payment arrangements?
A. No.
Q. When you say you werent aware of a payment plan, what do you mean?
A. I dont know anything. When the payment arrangement form like you showed
me, the first time I saw one was the first time I became aware of it, I didnt know.
Q. Okay.
A. I dont think its something that was advertised. I dont know how long it has
been in existence. I dont know.
Exhibit 24 at 123-124 (emphasis added).
Members who relied on a reading of the CGL and Bylaws would have no reason to know
that they could avoid paying in full to come back into good standing. FST Bilger agreed that
there is nothing in the Constitution or By-Laws that says that if you suspend yourself, that you
can use a payment plan to become in good standing. Exhibit 4 at 73. The President of the
Local, Jackie Jeter, admitted that she learned that there were people who did not know about the
payment plan option. Exhibit 6 at 31. President Jeter also agreed that no notice of the payment
plan option went out to the membership. Exhibit 6 at 32.
The October 9 letters contained no advice that a member could restore his two years
continuous good standing by entering into a payment plan with the Union. Exhibit 6 at 31.
Rather, the letter stated that WMATA would deduct additional dues payments from the
members paycheck until the past dues amount was satisfied. It did not include a copy of the
single-page alternate payment plan form the Local used. As Mr. Loughry, the same Local
22

Case 8:16-cv-02052-GJH Document 13-1 Filed 01/12/17 Page 23 of 35

witness involved in preparing the October 9 letters, testified, nothing prevented the Local from
including the form with that letter. Exhibit 24 at 125.
As to the reinstatement fee for suspended members, the Local never collected it. Exhibit
4 at 100; exhibit 6 at 66-67. As President Jeter testified, the amount of the fee -- $1 per month
for the term of the suspension -- was significant for union members and, as a matter of policy,
the Local made it a practice to spare its members from this financial hardship. Exhibit 6 at 67-68.
As with the waiver of the pay-in-full requirement, the Local did not tell the membership that it
would not collect the fee. On this record, the evidence establishes that members believed the
Local would collect the fee. Mr. Loughry, the rank-and-file member of the Local who also
worked for the Local on dues issues, testified that he had heard that members had to pay this fee
to get back into good standing. Exhibit 24 at 109-110.
The Union also waived the $75 initiation fee for members who should have been required
to re-enroll as new members. Exhibit 4 at 192-194. Nowhere did the Local tell the members
this. In a regime where a $1 per month suspension fee was significant, $75 was probably even
more so. The Local, however, kept this practice secret along with so many others.
The record establishes that the Local had the means to announce the existence of these
alternate procedures to its members. One version of the November 18 letter -- a version
distributed only to members who had paid their arrearages in full or had made payment
arrangements already -- specifically referenced the alternate payment plan procedure, albeit in
passing. However, in contravention to the adequate advance notice requirement of 29 C.F.R.
452.53, the letter was sent after the nomination meetings when it was too late for members to
be able to determine whether they were qualified for candidacy. FST Bilger admitted that he did
nothing to spread the word to the membership that the payment arrangement option was

23

Case 8:16-cv-02052-GJH Document 13-1 Filed 01/12/17 Page 24 of 35

available except to tell the Locals Board members. Exhibit 4 at 29. In short, news of these
procedures spread, if at all, by word of mouth.
3. The Locals Non-Uniform Application of its Standards for Arrearages
Greater Than Two Months
As demonstrated above, the Local permitted members who contacted FST Bilger to avoid
certain candidate eligibility rules in the CGL and Bylaws. In effect, the Local established an
alternative and secret set of practices. The record, however, establishes that even as to these
alternative and secret practices, the Local did not apply them uniformly, with the result that
similarly situated members who sought to run for office were treated differently and not
permitted to run for office.
a. The October 9 Letter Constituted An Alternate Payment Plan
The October 9 dues deduction letter was a payment plan. That payment plan was good
enough to bring members back into good standing for the purpose of voting. Inconsistently, the
Local did not consider it good enough to bring the member back into good standing as a
nominee. Accordingly, the Local did not uniformly apply this aspect of its unwritten alternate
payment plan procedures.
Based on dues checkoff agreements, the Local had the authority to cause the employer to
deduct dues arrearages from members wages. Exhibit 4 at 101-102. The October 9, 2015 letter
invoked that authority, advising members that additional dues deductions would occur. As FST
Bilger testified, this in itself constituted an alternate payment plan. Exhibit 4 at 32-34. The dues
deduction payment plan put into place by the October 9 letter should have been sufficient to
bring members into good standing to be nominated for office. The Union sent the October 9
letter to members who had a dues arrearage large enough to be considered suspended. If that
24

Case 8:16-cv-02052-GJH Document 13-1 Filed 01/12/17 Page 25 of 35

member took no action, he automatically received the version of the November 18 letter
indicating that the dues deduction was going into effect and that as a result the member was
eligible to vote. Exhibit 24 at 145-151. Asked at deposition why the member automatically
received both letters, Mr. Loughry, the Locals computer expert, testified: Because they either
paid or they didnt. Exhibit 24 at 151. Although the Local viewed the dues deduction payment
plan articulated in the October 9 letter as satisfying of its own accord the requirement to bring a
member into good standing to vote, it inconsistently did not deem the plan as adequate to
reinstate good standing to run for office. As FST Bilger testified, that member had to take
additional action: contact the Local and pay in full or enter into the alternate payment plan.
Exhibit 4 at 24, 34-35.
The treatment of the effectiveness of the automatic dues deduction announced in the
October 9 letter -- acceptable as good standing for voting but not as a nominee -- illustrates the
inconsistency of the Locals practices. The CGL and Bylaws do not articulate a different test for
what constitutes good standing for voting as distinguished from good standing for running
for office other than to require that the nominee have been in that status for two years
continuously. The manner of coming into good standing is the same in the CGL and the Bylaws.
A member who received an October 9 letter would have had no way of knowing that to run for
office, he had to contact FST Bilger and either pay in full or agree to yet another alternate
payment plan by executing a form contract that was not even included or referenced in the letter.
Failing to announce that the October 9 letter dues deduction payment plan was sufficient to
reinstate good standing for voting but not for officer candidacy constitutes the kind of
unreasonable and ad hoc policy that Courts have voided. Local 689s non-uniform application of
these dues deduction arrangements precluded members from ascertaining whether they were

25

Case 8:16-cv-02052-GJH Document 13-1 Filed 01/12/17 Page 26 of 35

eligible to be candidates and permitted determinations of eligibility based on the subjective

judgments of incumbent officers as prohibited by 29 C.F.R. 452.53.
b. Payment Plans Were Not Uniformly Applied to Nominees
An examination of the experiences of the various nominees who were or were not
permitted to run for office and who had arrearages reveals the inconsistencies in the Locals
application of its alternate, secret policies.
As a result of the relaxation of the good standing requirements in the CGL and Bylaws,
eleven members with significant dues arrearages were allowed to run for office while other
nominees were not. Nine of these members arrearages were so large that they had, according to
the CGL, suspended themselves. Two others arrearages were of between one and two
months.
Member

Arrearage

Alternate
Payment Plan

Elected

David Allen

$236.50

Yes

Yes

John Gaines

$617.50

Yes

Yes

Tracy Smith

$450.45

Yes

Yes

Terry Bradley

$169.35

Yes

No

Roxie Jefferson

$161.05

Yes

No

Antonio Ross

$396.75

Yes

Yes

Andre Long

$122.80

No

No

Richard Copeland

$122.00

No

No

Donnell Morina

$75.05

No

No

Wilbur Lucas

$482.70

No

Yes

Luis Chevalier

$867.90

Yes

No

See exhibits 9-12 & 14-20. None of these members satisfied the two-year continuous good
standing requirement as delineated in the candidate eligibility bylaws.
26

Case 8:16-cv-02052-GJH Document 13-1 Filed 01/12/17 Page 27 of 35

The first inconsistency: nominees with arrearages of greater than two months were
allowed to run without a payment plan. FST Bilger testified that the Local required nominees
with arrearages in excess of two months to have either executed a payment plan or to have paid
in full. The uncontradicted evidence is that two members were permitted to run without doing
either. Wilbur Lucas owed several months of dues, but there is no evidence indicating that he
made a payment arrangement or otherwise paid his arrearages. Lucas won the position of Station
Manager Division Shop Steward #2. Exhibit 21 at 1.
So too for Andre Long, who was also permitted to run for office even though his amount
in arrears resulted in his being suspended under the CGL. Exhibit 4 at 143, 160-162; Exhibit 16.
Q. So, if I am looking at people who were allowed to people who were in
arrears, Long, Copeland and Morina Long was 122 owed $122.80?
A. Right.
Q. That makes him greater than two months in arrears?
A. Correct.
Q. He did not have a payment plan?
A. He did not.
Q. And he was he remained in arrears of $122.80 as of the time of the election,
correct?
A. Correct.
Q. And $122.80, you told us, was the point at which you are over the two month
limit?
A. It is.
Q. And you told us that others, like Terry Bradley?
A. Uh-huh. (affirmative)
Q. Who was over the two month limit at $169.35 had to have a payment plan in
order to run?
A. Yes. [Bradley] paid down below the two months. Andre Long Andre
Longs was in good standings up until the two months prior to the election. We did not
have the dues records from W.M.A.T.A. at the time. So it appeared that Andre Long was
in good standing at the time.
27

Case 8:16-cv-02052-GJH Document 13-1 Filed 01/12/17 Page 28 of 35

Q. But he was not in actual good standing?

A. He was actually not, but if we would have had that information at that moment
in time, he would not have been eligible to run.
Exhibit 4 at 160-161 (emphasis added). Although the Union had inaccurate dues records at the
time of nominations, the fact remains: the Local did not require Long to pay or execute a
payment plan in order to run for office. Long nearly won; he lost by only 15 votes in a twoperson race. Exhibit 21 at 1.
The second inconsistency: some members with arrearages in excess of two months were
not allowed to enter into a payment plan. Specifically, two members who sought to run for
office -- Harry Johnson and Glenn Jarrett -- were not permitted to make a payment plan to come
back into good standing. Exhibits 22 and 23. Harry Johnson received an October 9 letter that
indicated he owed $1,776.35. Exhibit 22 at 1. Johnson was subsequently nominated for the
position of Shop Steward #1, Montgomery Bus Division. Exhibit 22 at 2-4. FST Bilger and the
Election Committee determined that Johnson was not in good standing, and so advised him by
letter dated November 6. Exhibit 22 at 5-7. They also called Johnson on November 10 to give
him this news. Exhibit 4 at 119-120. Johnson next received a November 18 letter indicating that
he was in good standing and eligible to vote. Exhibit 22 at 8.
Glenn Jarrett received an October 9 letter indicating that he owed $1,865.10. Exhibit 23
at 1. Jarrett was nominated for the position of Shepard Parkway Division Executive Board
Member #2. Exhibit 23 at 2-5. Jarrett signed a letter to agree to repay the amount, but did this
after the nomination. Exhibit 23 at 3-5. FST Bilger, acting with the Election Committee, told
Jarrett that he was not in good standing and would not be placed on the ballot. Exhibit 23 at 6-8.
Jarrett was then advised by letter on November 18 that he was in good standing because of the
dues deduction provisions articulated in the October 9 letter. Exhibit 23 at 9.

28

Case 8:16-cv-02052-GJH Document 13-1 Filed 01/12/17 Page 29 of 35

Jarrett learned of the requirement to enter into a payment plan and attempted to comply
before nominations. Unable to reach Bilger in advance, Jarretts payment plan occurred after the
nominations. The Local rejected it for this reason. Interestingly, and further illustrating the
shape-shifting set of rules in this secretive universe, the Local would have accepted Jarretts
payment plan had he gotten it to them before the nominations. Exhibit 4 at 67. When the issue
came to the International, however, by telephone inquiry from FST Bilger to the International
President, the International overruled the Local. The International told the Local that, even if
Jarrett had executed a payment plan before nominations, because the amount of Jarretts
arrearage was in excess of 12 months, he could not simply reinstate himself; he had to renew his
membership by rejoining as a new member. Exhibit 4 at 76-77. The International President
followed this telephone advice up in a post-election letter. Citing no authority, the International
said that because Jarrett and Johnson were more than one year in arrears of dues, they could not
use the payment plan option. Id.; see also id. at 69-70.
The third inconsistency: the explanation that the International imposed on the Local and
the resulting exclusion of Johnson and Jarrett as nominees was inconsistent with the manner in
which a third nominee with a similar arrearage was treated. Like Johnson and Jarrett, Luis
Chevalier owed more than one years worth of dues. He received an October 9 letter; it indicated
that his arrearage was $867.90. Exhibit 20. Chevalier executed a payment plan in October and
made payments of $422.90 and $145.00. Exhibit 20. These two payments reduced his arrearage
to $300.00. The Local permitted Chevalier to run for office. He was unsuccessful in his race for
System Maintenance Shop Steward #2. Exhibit 21 at 2. Chevalier came in third with 99 votes,
enough to have enabled the second place candidate -- Robert Loman -- to have overtaken the
certified winner, Alfred Williams. Exhibit 21 at 2.

29

Case 8:16-cv-02052-GJH Document 13-1 Filed 01/12/17 Page 30 of 35

The fourth inconsistency: the Internationals secret rule was inconsistent with practice.
The explanation that the International imposed on the Local and the resulting exclusion of
Johnson and Jarrett as nominees bore no relationship to the manner by which records were kept
at this Local, a difference that had real-world practical results. While the CGL envisioned a
regime in which the Local would report to the International the names of members whose
arrearages exceeded 12 months so that their names could be stricken from the rolls, in fact this
did not usually if ever occur. The Local did not have a coding system in place whereby it could
identify these people and report them to the International. The Locals database was not
compliant with the CGLs requirements because it did not ensure that a member in arrears for
more than one year was reported to the International as terminated. As FST Bilger explained, a
member over a year in arrears might yet be counted as an active member on the Locals and
Internationals rolls. Exhibit 4 at 184-188. For a member with such an arrearage who was still
coded as an active member on the Locals membership rolls, the Local had no code to de-enroll
and re-enroll him. Exhibit 4 at 191-192. The Local would therefore consider the member as
having suspended himself, the same as a member whose arrearage was less than one year in
amount. Exhibit 4 at 190-191. Thus, members with arrearages of greater than one year were
maintained on the Locals rolls as suspended in the same fashion as members whose arrearages
were less than one year, and not reported to the International. For all practical purposes, they
were in the same position as members with arrearages of less than one year, who had simply
suspended themselves, according to the CGL. Yet the member with the greater arrearage -according only to the International, in a view forced on the Local -- could not take advantage of
the payment plan option to come into good standing to run for office.

30

Case 8:16-cv-02052-GJH Document 13-1 Filed 01/12/17 Page 31 of 35

As with the other waivers of good-standing rules in this ever uncertain environment, the
Local gave no notice to the membership about the distinction between a member in arrears for
more than one year and those members who owed less. Even FST Bilger, who had served as
Financial Secretary-Treasurer since 2007, did not know about this supposed distinction until he
called the International for advice regarding the 2015 election. Exhibit 4 at 71. No member
reading the CGL or Bylaws, even if he had somehow gleaned that a payment plan was available,
would have any reason to suspect that the International would hold that members with arrearages
in excess of 12 months could not do a payment plan to come into good standing to run for office.
How could they, when the Local itself had not been aware of the distinction?
The sum and substance is simply this: the Local did not play by the rules. It ignored the
rules published in the CGL. It waived rules articulated in the Bylaws. It did not publish these
changes to the membership. It compounded the problem by not uniformly applying the secret,
new rules. Indeed, the Unions ad hoc practices not only rendered the two years continuous
good standing requirement meaningless, but also prevented potential candidates from even
realizing their own eligibility. Because the Local unreasonably applied these inconsistent and
unannounced rules, the Secretary is entitled to a Court order that the Local re-run the election
under supervision by the Secretary.
C. The Violations Affected The Outcome of the Election
Section 402(c) of the Act requires a court to void a contested election and order a new
supervised election if a violation of section 401 may have affected the outcome of the
election. See 29 U.S.C. 482(c); Solis v. Local 9477, 798 F. Supp. 2d at 705. The legislative
history shows that Congress rejected a showing of actual effect because the difficulty of
proving such an actuality would be so great as to render the statutory remedy practically

31

Case 8:16-cv-02052-GJH Document 13-1 Filed 01/12/17 Page 32 of 35

worthless. Hotel Employees, Local 6, 391 U.S. at 506 (quoting 105 Cong. Rec. 19765)
(finding that Department need only establish a prima facie showing of possible effect on
outcome).
First, the failure of the Local to comply with the statutory and constitutional fifteen-day
notice requirement serves as an independent basis upon which the Court should order a new
election. Having established this notice violation, the Secretary may then invoke a presumption
that the violation affected the outcome of the election that shifts the burden to the union to rebut
the presumption. Dole v. Mail Handlers, Local Union 317, 711 F. Supp. 577, 580 (M.D. Ala.
1989) (citing Hotel Employees, Local 6, 391 U.S. at 580). The Secretary can invoke a
presumption that the delay affected the outcome by the maximum theoretical possibility. See
Dunlop v. Bachowski, 421 U.S. 560, 580 (1975) (calculating effect with the presumption that the
entire membership would have voted but for the violation); Marshall v. Am. Postal Workers
Union, 486 F. Supp. 79, 82 (D.D.C. 1980), decision supplemented, No. 79-1440, 1980 WL 2063
(D.D.C. Mar. 11, 1980) (although the theory of the maximum theoretical possibility is
imperfect, because it assumes that all those who could have voted would have voted and that
those who would have voted would have voted unanimously, the application of the theory is
called for by the liberal may have affected standard) (citing Wirtz v. Local Union No. 125,
Intl Hod Carriers, 270 F. Supp. 12, 20 (N.D. Ohio 1966); Wirtz v. Local Union 169, Intl Hod
Carriers, 246 F. Supp. 741, 754 (D. Nev. 1965))).
Thus, the notice violation can be presumed to have affected every eligible member who
did not vote, approximately 8,067 members. Local 689 has about 13,535 members. Exhibit 26,
Answer to Interrog. 19 (Local 03393-03396). According to the ballot count of the presidents
race, at least 5,468 members voted. Exhibit 27. Therefore, approximately 8,067 members did

32

Case 8:16-cv-02052-GJH Document 13-1 Filed 01/12/17 Page 33 of 35

not vote in the election. This presumption is bolstered by the fact that during the course of the
investigation, the Secretary encountered at least twelve members who stated that they did not
receive an election notice, a number greater than the smallest margin of victory in any of the
races held on December 2, 2015: eleven votes for Bladensburg Division Executive Board. See
id.; exhibit 27 at 1; see also Wirtz v. Local Union 169, 246 F. Supp. at 754 (An election
conducted with violations of the Act which may have affected the outcome as to one office is
void as a whole.).
Because the Local had no absentee voting procedures, the delay may also have prevented
the approximately 570 members residing outside of the Washington D.C. area, particularly
retirees who do not travel regularly to the Union Hall or the worksites were the polling occurred,
from voting if they were unable to make travel arrangements within fourteen days. Exhibit 26
answer to interrogatory 20 (Local 03399-03426).
Once a prima facie case for a section 401 violation has been established, the burden shifts
to the union to prove that the violation did not affect the election results. Hotel Employees,
Local 6, 391 U.S. at 506-507; Solis v. Local 9477, 798 F. Supp. 2d 701 at 705. The unions
burden o f p r o o f is substantial in that it must rebut with tangible evidence against the
reasonable possibility that the violation may have affected the outcome of the election. Hotel
Employees, Local 6, 391 U.S. at 508; Marshall v. Local 1010, United Steelworkers, 664 F.2d
144, 148 (7th Cir. 1981); Donovan v. Local Union 70, Intl Brhd. of Teamsters, 661 F.2d
1199, 1202 (9th Cir. 1981) (affirming lower courts order of new supervised election where
union failed to provide tangible evidence to rebut presumption of effect on outcome); Marshall
v. Local 12447, United Steelworkers, 591 F.2d 199, 205-06 (3d Cir. 1978) (union failed to meet
its burden to provide evidence that violation did not affect outcome of election).

33

Case 8:16-cv-02052-GJH Document 13-1 Filed 01/12/17 Page 34 of 35

Here, the Local cannot offer any tangible evidence to rebut the presumption that the
violation may have affected the outcome of the election because courts, in considering the
acceptable forms of evidence, will not engage in speculation as to the members decisionmaking processes in voting. Usery v. International Organization of Masters, Mates and Pilots,
422 F. Supp. 1221, 1230 (S.D. N.Y. 1976) (granting summary judgment upon finding there to
be no conceivable way in which the union could confront and overcome the imponderables
inherent in analyzing the decisions made by each elector where union engaged in improper
campaigning in a union newsletter mailed to each union member), affd and modified on other
grounds, 538 F.2d 946 (2d Cir. 1976); Dole v. Drywall Tapers and Finishers Local Union
1976, 733 F. Supp. 864, 867 (D.N.J. 1990) (where margin of victory was 16 votes out of 364,
violation may have affected the outcome of the election [ b]ecause of the close election
marginany proof relating to the outcome would, necessarily, be speculative). Thus, the
court may assume that the 8,067 members who did not vote would have voted for a different
candidate than the winning candidate in any of the races, eclipsing the largest winning margin
of a race at 930 votes.
Separate and apart from the effect of the violation of the 15-day rule, the Locals failure
to announce officer qualification standards different from its CGL and Bylaws and to uniformly
apply them also affected the outcome of the election. See supra at 18-31. Local 689s failure to
uniformly apply the reasonable candidate qualification bylaws affected all races because
members may have declined to run for any of the races based on the existing Bylaws. Members
who actually read the CGL and Bylaws and expected the Local would follow them, and who
knew they had an arrearage, would have no reason to think they could cure the arrearage by
paying less than the full arrearage. Additionally, the evidence documents that more than one

34

Case 8:16-cv-02052-GJH Document 13-1 Filed 01/12/17 Page 35 of 35

race was affected when the Local departed from the CGL and Bylaws without notice to the
membership to allow some members with arrearages to run for office but not others. Therefore,
in order to remedy this violation, new nominations and a new election should occur, subject to
reasonable and uniform application of the unions candidacy qualification rules.
V.

Conclusion

The Court should grant the Secretarys motion for summary judgment and order that a
new election occur under the Secretarys supervision.
Respectfully submitted,
Rod J. Rosenstein
United States Attorney

By:_______/s/_________________
Allen F. Loucks
Assistant United States Attorney
36 South Charles Street, 4th Floor
Baltimore, Maryland 21201
(410) 209-4800

35