Walsh et al v. Local 108

Filing 25

ORDER: "Defendant's Motion to Dismiss" (Doc. 15) is denied. Defendant is directed to file an answer on or before December 3, 2021. See Order for details. Signed by Judge Thomas P. Barber on 11/18/2021. (ANL)

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UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
MARTIN J. WALSH, Secretary of Labor,
UNITED STATES DEPARTMENT OF
LABOR,
Plaintiff,
v.

Case No. 8:21-cv-1976-TPB-JSS

LOCAL 108, INTERNATIONAL
BROTHERHOOD OF ELECTRICAL
WORKERS,
Defendant.
________________________________/
ORDER DENYING “DEFENDANT’S MOTION TO DISMISS”
This matter is before the Court on “Defendant’s Motion to Dismiss,” filed by
counsel on October 1, 2021. (Doc. 15). On October 15, 2021, Plaintiff Martin J.
Walsh, Secretary of Labor, filed a response in opposition to the motion. (Doc. 17).
On October 25, 2021, Defendant Local 108, International Brotherhood of Electrical
Workers filed a reply. (Doc. 22). After reviewing the motion, response, reply, court
file, and the record, the Court finds as follows:
Background
In this case, the Secretary of Labor has filed a complaint under Title IV of the
Labor Management Reporting and Disclosure Act (“LMRDA”) to challenge a recent
officer election conducted by Defendant Local 108. Defendant is a labor
organization that represents approximately 1,000 members in Central Florida. Due
to the impact of the COVID-19 pandemic, Defendant rescheduled its election for
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September 5, 2020. Defendant notified its members that they could vote by
absentee ballot and advised its members that those who wanted an absentee ballot
were required to submit a written request to Election Judge Sam Bump at least five
days prior to the election; members were directed to mail these absentee requests to
P.O. Box 1974, Oldsmar, Florida 34677.
In early September, days before the election, several members contacted
Defendant to notify the Election Judge that their absentee ballot requests had been
returned by the United States Postal Service (“USPS”). On September 4, 2020,
Bump contacted USPS to inquire as to why absentee ballot requests were being
returned. USPS responded – after the election – to explain that the postal clerk had
erroneously assigned P.O. Box 1974 to the Election Judge when this box had also
been rented to another customer, the Kelby Media Group. USPS informed Bump
that the Kelby Media Group had returned an unspecified number of absentee ballot
requests, which USPS subsequently returned to the senders. 1 At least thirteen
members had their absentee ballot requests returned as undeliverable and did not
vote in the election.
Based on these events, Plaintiff has alleged violations of 29 U.S.C. § 481(c)
(requiring adequate safeguards to ensure a fair election) and 29 U.S.C. § 481(e)
(guaranteeing that every member in good standing shall have the right to vote for
candidate of his or her choice). Plaintiff seeks a judgment declaring the September
5, 2020, election void and directing Defendant to conduct a new election under
USPS also told Bump, incorrectly, that “all mail” addressed to him at P.O. Box 1974 had
been returned to senders, despite the fact that Bump had already retrieved 94 absentee
ballot requests.

1

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Plaintiff’s supervision, with new nominations for the positions of President,
Business Manager/Financial Secretary, and three convention delegates.
Legal Standard
Federal Rule of Civil Procedure 8(a) requires that a complaint contain “a
short and plain statement of the claim showing the [plaintiff] is entitled to
relief.” Fed. R. Civ. P. 8(a). While Rule 8(a) does not demand “detailed factual
allegations,” it does require “more than labels and conclusions, and a formulaic
recitation of the elements of a cause of action will not do.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007). In order to survive a motion to dismiss, factual
allegations must be sufficient “to state a claim to relief that is plausible on its
face.” Id. at 570.
When deciding a Rule 12(b)(6) motion, review is generally limited to the four
corners of the complaint. Rickman v. Precisionaire, Inc., 902 F. Supp. 232, 233
(M.D. Fla. 1995). Furthermore, when reviewing a complaint for facial sufficiency, a
court “must accept [a] [p]laintiff’s well pleaded facts as true, and construe the
[c]omplaint in the light most favorable to the [p]laintiff.” Id. (citing Scheuer v.
Rhodes, 416 U.S. 232, 236 (1974)). “[A] motion to dismiss should concern only the
complaint’s legal sufficiency, and is not a procedure for resolving factual questions
or addressing the merits of the case.” Am. Int’l Specialty Lines Ins. Co. v. Mosaic
Fertilizer, LLC, 8:09-cv-1264-T-26TGW, 2009 WL 10671157, at *2 (M.D. Fla. Oct. 9,
2009) (Lazzara, J.).

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Analysis
Defendant argues that Plaintiff cannot state a plausible claim for relief
because Title IV does not regulate the conduct of third parties or make unions liable
for the mistakes of others over whom the union has no authority or control.
Defendant contends that the complaint therefore improperly seeks to hold
Defendant legally responsible for an error committed by USPS.
Title IV requires a local union conducting an election to provide adequate
safeguards to ensure a fair election and guarantee its members’ right to vote. 29
U.S.C. § 401(c), (e). Plaintiff asserts that Defendant violated these laws by, among
other things, using a post office box that was rented and accessed by another entity
throughout the election period. Even if the post office box mix-up was an error
committed by USPS rather than Defendant, an error committed by a third party
may still constitute a LMRDA violation. See, e.g., Dole v. Local 492, Bakery,
Confectionery & Tobacco Workers Intl Union, No. 89-2618, 1989 WL 126182, at *1, 4
(E.D. Pa. Oct. 23, 1989); Marshall v. Local 2, Int’l Union of Police & Prot. Emp.
Indep. Watchman’s Ass’n, No. 78 Civ. 3879-CSH, 1979 WL 1832, at *5 (S.D.N.Y.
Jan. 5, 1979); Wirtz v. Am. Guild of Variety Artists, 267 F. Supp. 527, 541 (S.D.N.Y.
1967).
The Court acknowledges that these cases do not squarely address errors
committed by a third party that happens to be a governmental entity. But even if
the Court were inclined to conclude that Defendant could not be held responsible for
the post office box mix-up, the complaint encompasses more than just this alleged
error. Plaintiff alleges that Defendant became aware of problems with the absentee
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ballot request process prior to the election but did not correct or mitigate the
problems. 2 This allegation concerns the conduct of Defendant, not USPS, and it
implicates the adequate safeguard provision. See, e.g., Acosta v. Local 41, Int’l Bhd.
of Teamsters, No. 4:18-cv-381-HFS, 2020 WL 11563944, at *3 (W.D. Mo. Feb. 10,
2020); Perez v. Amalgamated Transit Union Local 1700, 174 F. Supp. 3d 395, 396,
404 (D.D.C. 2016); Chao v. Local 54, Hotel Emps. & Rest. Emps. Int’l Union, 166 F.
Supp. 2d 109, 113 (D.N.J. 2001).
In addition, Defendant argues that Plaintiff cannot allege a § 401(e) violation
because Plaintiff cannot establish that union members had a statutory right to cast
votes by absentee ballot or that any members were prevented from voting. Yet,
even if there is no statutory right to vote by absentee ballot, Plaintiff alleges that
Defendant provided notice to its members that absentee ballots were available upon
request and that the union bylaws also provide the right to vote by absentee ballot.
Plaintiff also alleges that an indeterminable number of members were unable to
vote in the election. 3 These allegations, taken as a whole, are sufficient to state a
claim.

Specifically, the Election Judge had received numerous absentee ballot requests each day
before the requests suddenly stopped, and several members reached out to the Election
Judge regarding their absentee ballot request being returned to them as undeliverable
prior to the election.
3 Plaintiff asserts that an unknown number of members may have requested absentee
ballots that were returned as undeliverable. In the complaint, Plaintiff specifically
identifies thirteen members who had their absentee ballot requests returned as
undeliverable and did not vote in the election. One additional member requested but did
not receive an absentee ballot, and when that individual tried to vote in-person, he was
required to vote a challenged ballot that was not counted.
2

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Ultimately, accepting Plaintiff’s allegations as true, the Court finds that
Plaintiff has sufficiently pled that Defendant violated §§ 401(c) and (e) of the
LMRDA, and these violations may have impacted the outcome of the challenged
election. The motion to dismiss is denied.
Accordingly, it is
ORDERED, ADJUDGED, and DECREED:
(1) “Defendant’s Motion to Dismiss” (Doc. 15) is DENIED.
(2) Defendant is directed to file an answer on or before December 3, 2021.
DONE and ORDERED in Chambers, in Tampa, Florida, this 18th day of
November, 2021.

TOM BARBER
UNITED STATES DISTRICT JUDGE

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