Ono et al v. Dias et al

Filing 35

ORDER DENYING AS MOOT PLAINTIFFS' MOTION FOR A PRELIMINARY INJUNCTION; AND GRANTING IN PART AND DENYING IN PART DEFENDANTS INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS AND HAROLD DIAS, JR.'S MOTION TO DISMISS FOR LACK OF SUBJECT MATTER J URISDICTION re 4 Motion ; 16 Motion to Dismiss. Signed by JUDGE LESLIE E. KOBAYASHI on 09/30/2014. (eps)CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
HARRY ONO; CRAIG INAGAKI; and )
STEPHEN LEONG,
)
)
)
Plaintiffs,
)
vs.
)
)
HAROLD DIAS, JR; LOCAL UNION )
)
1186; INTERNATIONAL
BROTHERHOOD OF ELECTRICAL
)
)
WORKERS; and INTERNATIONAL
)
BROTHERHOOD OF ELECTRICAL
)
WORKERS,
)
)
Defendants.
_____________________________ )

CIVIL 14-00327 LEK-KSC

ORDER DENYING AS MOOT PLAINTIFFS’ MOTION FOR
A PRELIMINARY INJUNCTION; AND GRANTING IN PART AND
DENYING IN PART DEFENDANTS INTERNATIONAL BROTHERHOOD
OF ELECTRICAL WORKERS AND HAROLD DIAS, JR.’S MOTION
TO DISMISS FOR LACK OF SUBJECT MATTER JURISDICTION
Before the Court is Plaintiffs Harry Ono (“Ono”),
Craig Inagaki (“Inagaki”), and Stephen Leong’s (“Leong,”
collectively “Plaintiffs”) Motion for a Preliminary Injunction
(“Preliminary Injunction (“Preliminary Injunction Motion”), filed
on July 21, 2014; and Defendants International Brotherhood of
Electrical Workers (“IBEW”) and Harold Dias, Jr.’s (“Dias”)
Motion to Dismiss for Lack of Subject Matter Jurisdiction
(“Motion to Dismiss”), filed on August 6, 2014.1
1

[Dkt. nos. 4,

On August 7, 2014, Defendant Local 1186, International
Brotherhood of Electrical Workers (“Local 1186”), filed its
joinder in the Motion to Dismiss. [Dkt. no. 28.] Local 1186 is
a local union under the jurisdiction of IBEW, the international
(continued...)

16.]

Plaintiffs filed their memorandum in opposition to the

Motion to Dismiss on August 28, 2014, and IBEW and Dias filed
their reply on September 4, 2014.

[Dkt. nos. 33, 34.]

The Court

finds this matter suitable for disposition without a hearing
pursuant to Rule LR7.2(d) of the Local Rules of Practice of the
United States District Court for the District of Hawai`i (“Local
Rules”).

After careful consideration of the Preliminary

Injunction Motion and the Motion to Dismiss, supporting and
opposing memoranda, and the relevant legal authority, the
Preliminary Injunction Motion is HEREBY DENIED as moot; and IBEW
and Dias’s Motion to Dismiss is HEREBY GRANTED IN PART AND DENIED
IN PART for the reasons set forth below.
BACKGROUND
On July 21, 2014, Plaintiffs, who are three recently
elected Local 1186 officials, filed their Complaint and the
Preliminary Injunction Motion, asserting jurisdiction pursuant
to, inter alia, the Labor–Management Reporting and Disclosure Act
of 1959 (“the LMRDA”), 29 U.S.C. § 412.

[Dkt. nos. 1 (Complaint)

at ¶ 8, 4 (Preliminary Injunction Motion).]

The Complaint

centers on IBEW’s invalidation of a Local 1186 election held in
June 2014, and the Preliminary Injunction Motion requested this
Court enjoin the new election ordered by IBEW.

1

(...continued)
labor organization. The Court will refer in this Order to IBEW,
Local 1186, and Dias together as “Defendants.”
2

The following facts are undisputed.

On June 21, 2014,

Local 1186 held an election (“the June Election”) and Plaintiffs,
along with other individuals who were part of the “Members for
Change” campaign (“the Reform Slate”) prevailed.

[Preliminary

Injunction Motion, Exh. 10 (results);2 Mem. in Supp. of Motion to
Dismiss at 3.]

On June 23, 2014, Damien Kim (“Kim”), the

defeated incumbent Business Manager-Financial Secretary,3
protested the election to IBEW Vice President Michael Mowrey
(“Mowrey”).

[Motion to Dismiss, Decl. of Michael S. Mowrey

(“Mowrey Decl.”) at ¶¶ 6-7; id., Exh. 1 (“6/23/14 Kim Ltr. to
Mowrey”); Mem. in Opp. to Motion to Dismiss at 8 (citing 6/23/14
Kim Ltr. to Mowrey).]

On June 24, 2014, Mowrey assigned Dias to

investigate the protest, [Mowrey Decl., Exh. 2 (“6/24/14 Mowrey
Mem. to Dias”),] and after conducting the investigation, on
July 1, 2014, Dias gave a report to Mowrey, recommending that he
void the June Election [Motion to Dismiss, Decl. of Harold J.
Dias (“Dias Decl.”) at ¶ 7; id., Exh. 1 (“Dias Report”) at pg.

2

Plaintiffs’ Exhibits 1-11 are attached to the Preliminary
Injunction Motion, and incorporated by reference into their
memorandum in opposition to the Motion to Dismiss. [Mem. in Opp.
at 3.] Neither these exhibits nor Exhibits 12-15, attached to
the memorandum in opposition, have been authenticated by an
attorney.
3

According to the IBEW Constitution, the “business manager
shall be the principal officer of the [Local Union] . . . .”
[Preliminary Injunction Motion, Exh. 2 at p. 52 (Art. XVI, § 2).]
3

315;4 Mem. in Opp. to Motion to Dismiss at 10-13 (describing Dias
Report)].
Based at least in part on the Dias Report, Mowrey
decided to invalidate the June Election results (“the Mowrey
Decision”).

[Mowrey Decl. at ¶¶ 9-12.]

On July 10, 2014, Mowrey

sent a letter to incumbent Local 1186 president Peter Akamu
(“Akamu”) informing him that there had been a serious violation
of the LMRDA based on “Employer Interference,” and ordering him
to hold a new election within thirty days.

[Mowrey Decl., Exh. 3

(“7/10/14 Mowrey Ltr. to Akamu”); Preliminary Injunction Motion,
Exh. 5 (same).]

The “employer interference” related to

purportedly impermissible involvement of business owner,
Gerard Yuh (“Yuh”) – who was also a former member and officer of
Local 1186 – for campaigning for the Reform Slate.
Report at pgs. 311-15.

See Dias

Shortly after the July 10, 2014 Mowrey

Letter to Akamu, Plaintiff Inagaki sent a complaint to Mowrey and
filed the Reform Slate’s grievances with the Department of Labor
(“DOL”).

[Mowrey Decl., Exh. 4 (“DOL Complaint”); Complaint at

¶ 49.]
On July 21, 2014, Plaintiffs filed the Complaint and
Preliminary Injunction Motion, arguing that the Mowrey Decision
amounted to the creation and enforcement of an “ad hoc” rule that

4

Many of Plaintiffs’ and Defendants’ exhibits do not have
internal page numbers and thus the Court uses the notation “pg.”
to refer to the CM/ECF docket pages.
4

violated their right to free speech and assembly guaranteed by
Title I of the LMRDA.

[Complaint at ¶¶ 51-70.]

The Court held

status conferences on July 22 and July 30, 2014 [dkt. nos. 11,
13] and, on August 6, 2014, the parties filed a joint stipulation
agreeing to impound the completed ballots from the new election
ordered by IBEW (“July Election”) [dkt. no. 19].
Also on August 6, 2014, IBEW and Dias filed the Motion
to Dismiss, which argues that this Court does not have
jurisdiction to hear the Complaint, and that the Preliminary
Injunction Motion must fail.

[Dkt. no. 16.]

On August 7, 2014,

the Court issued an entering order setting a briefing schedule,
and limiting briefing to the jurisdictional issue.
29.]

[Dkt. no.

Since the July Election ballots have been impounded, the

Court DENIES the Preliminary Injunction Motion as moot.
Plaintiffs may renew the Preliminary Injunction Motion if there
is any change in the status quo that would necessitate immediate
relief.

Thus, the remainder of this Order focuses solely on the

issue of whether this Court has jurisdiction over the Complaint.
STANDARD
“A [Federal Rule of Civil Procedure] Rule 12(b)(1)
jurisdictional attack may be facial or factual.”

Safe Air for

Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004) (citation
omitted).

“A ‘facial’ attack asserts that a complaint’s

allegations are themselves insufficient to invoke jurisdiction,

5

while a ‘factual’ attack asserts that the complaint’s
allegations, though adequate on their face to invoke
jurisdiction, are untrue.”

Courthouse News Serv. v. Planet, 750

F.3d 776, 793 n.3 (9th Cir. 2014) (citation omitted).

“Once the

moving party has converted the motion to dismiss into a factual
motion by presenting affidavits or other evidence properly
brought before the court, the party opposing the motion must
furnish affidavits or other evidence necessary to satisfy its
burden of establishing subject matter jurisdiction.”

Savage v.

Glendale Union High Sch., Dist. No. 205, Maricopa Cnty., 343 F.3d
1036, 1040 n.2 (9th Cir. 2003) (citation omitted).
“As a general rule, when ‘[t]he question of
jurisdiction and the merits of [the] action are intertwined,’
dismissal for lack of subject matter jurisdiction is improper.”
Williston Basin Interstate Pipeline Co. v. An Exclusive Gas
Storage Leasehold & Easement in the Cloverly Subterranean,
Geological Formation, 524 F.3d 1090, 1094 (9th Cir. 2008)
(alterations in Williston Basin) (quoting Safe Air, 373 F.3d at
1039).

This occurs when, as here, “a party’s right to recovery

rests upon the interpretation of a federal statute that provides
both the basis for the court’s subject matter jurisdiction and
the plaintiff’s claim for relief.”

Id. (citations omitted).

Instead of reviewing the motion under Rule 12(b)(1), the court
must examine whether there are genuine issues of material fact,

6

pursuant to Federal Rule of Civil Procedure 56, that could give
rise to jurisdiction.

See Safe Air, 373 F.3d at 1040.

The court

must view the evidence in the light most favorable to the
nonmoving party to determine whether there are any genuine issues
of material fact.

See id. at 1040 n.4 (citation omitted); see

also id. at 1048 (Paez, J., concurring) (explaining that the
“ultimate task is to determine whether [the plaintiff] has
presented evidence that, if accepted as true, creates a genuine
issue” as to the factual basis for jurisdiction).
DISCUSSION
Defendants offer evidence and argue that, while
Plaintiffs allege in the Complaint that Defendants have violated
their rights under Title I of the LMRDA, which protects freedom
of speech and assembly, in substance, the Complaint alleges a
violation of Title IV, relating to election rights and
procedures.

Thus, they argue, since the Secretary of Labor has

exclusive jurisdiction over Title IV challenges, this Court lacks
subject matter jurisdiction over the Complaint.
Plaintiffs respond that they do state a claim under
Title I, and provide evidence to show that the Dias Report and
Mowrey Decision rely on mistakes of law and fact that cause the
claim to extend beyond Title IV and chill their Title I rights;
therefore, this Court does have jurisdiction.

Although this is a

close question, the Court finds that, at this early stage of the

7

litigation, there are genuine issues of material fact as to the
bases for the Dias Report and Mowrey Decision, and dismissal for
lack of jurisdiction would be premature.
Title IV of the LMRDA, codified at 29 U.S.C. §§ 481-83,
establishes standards for union elections.

One provision limits

contributions to union elections from union coffers and
“employers.”

29 U.S.C. § 481(g).5

Pertinent to this case, it

provides that, “no moneys of an employer shall be contributed or
applied to promote the candidacy of any person in any election
subject to the provisions of this subchapter.”

Id.

An

implementing regulation provides:
(a) As an additional safeguard, section 401(g)
provides that no money of an employer is to be
contributed or applied to promote the candidacy of
any person in an election subject to the
provisions of title IV. This includes indirect as
well as direct expenditures. Thus, for example,
campaigning by union stewards on company time with
the approval of the employer would violate section
401(g) unless it can be shown that they are on
legitimate work assignments, and that their
campaign activities are only incidental to the
performance of their assigned task and do not
interfere with its performance. This prohibition
against the use of employer money includes any
costs incurred by an employer, or anything of
value contributed by an employer, in order to
support the candidacy of any individual in an
election. It would not, however, extend to
ordinary business practices which result in
conferring a benefit, such as, for example, a
discount on the cost of printing campaign

5

Courts and Congress also refer to this section as Section
401(g) based on its numbering in the LMRDA.
8

literature which is made available on the same
terms to other customers.
(b) The prohibition against the use of employer
money to support the candidacy of a person in any
election subject to the provisions of title IV is
not restricted to employers who employ members of
the labor organization in which the election is
being conducted, or who have any business or
contractual relationship with the labor
organization.
29 C.F.R. § 452.78 (emphasis added).
Title IV also “provides an elaborate postelection
procedure aimed solely at protecting union democracy through free
and democratic elections, with primary responsibility for
enforcement lodged with the Secretary of Labor.”

Local No. 82,

Furniture & Piano Moving, Furniture Store Drivers, Helpers,
Warehousemen & Packers v. Crowley, 467 U.S. 526, 528 (1984).

To

that end, a member claiming a Title IV violation must first
exhaust his internal local and international union remedies, and
then may file a complaint with the Secretary of Labor.
§ 482(a).

29 U.S.C.

The LMRDA provides that the “remedy provided by

[Title IV] for challenging an election already conducted shall be
exclusive.”

29 U.S.C. § 483.

Defendants argue that Plaintiffs’ challenge to the June
Election falls squarely within the ambit of Title IV since Mowrey
voided the election based on findings of violations of § 481(g).
Mowrey attests that, in the Dias Report, Dias “concluded that
that [sic] Gerald Yuh, an employer, had campaigned for

9

Craig Inagaki, Harry Ono and the ‘Members for Change’ slate, by
mailing out campaign fliers, distributing campaign literature and
speaking to union members individually and in groups.”
Decl. at ¶ 9.]

[Mowrey

Mowrey states that, based on his review of the

Dias Report and his understanding of § 481(g), he “concluded that
a serious violation of the LMRDA had occurred that had undermined
the integrity of Local 1186’s election.”

Id. at ¶ 11; see also

7/10/14 Mowrey Ltr. to Akamu (“After a very thorough
investigation I have determined that there was a serious
violation of the LMRDA by ‘Employer Interference’ in the election
process of Local Union 1186.

As a result of my determination I

instruct Local Union 1186 to void the election results of
June 21, 2014 . . . .”).

Defendants argue that Plaintiffs should

take up their disagreement with Mowrey’s interpretation of
§ 481(g) with the Secretary of Labor, who has exclusive
jurisdiction of disputes over election procedures.
Plaintiffs, however, argue that their claims extend
beyond the purview of Title IV, into Title I, codified at 29
U.S.C. §§ 411-14, and are not preempted.

Among the rights

afforded in Title I, § 411(a)(2) protects union members’ freedom
of assembly and speech:
Every member of any labor organization shall have
the right to meet and assemble freely with other
members; and to express any views, arguments, or
opinions; and to express at meetings of the labor
organization his views, upon candidates in an
election of the labor organization or upon any
10

business properly before the meeting, subject to
the organization’s established and reasonable
rules pertaining to the conduct of meetings:
Provided, That nothing herein shall be construed
to impair the right of a labor organization to
adopt and enforce reasonable rules as to the
responsibility of every member toward the
organization as an institution and to his
refraining from conduct that would interfere with
its performance of its legal or contractual
obligations.
29 U.S.C. § 411(a)(2) (bold emphasis added).

Unlike purported

Title IV violations, a union member may challenge a violation of
Title I in federal district court, rather than before the
Secretary of Labor.

29 U.S.C. § 412.

Further, as the Ninth

Circuit Court of Appeals has held, Title IV does not entirely
preempt Title I challenges to election-related practices:
Total preemption of Title I relief by Title
IV in the area of elections is belied by the
legislative history of the LMRDA. Title IV had
been drafted, discussed, and approved before Title
I was even proposed. Congress added Title I at
least partly in response to fears that Title IV
was not strong enough to effectuate the central
purpose of the LMRDA, the preservation of union
democracy.
Kupau v. Yamamoto, 622 F.2d 449, 455 (9th Cir. 1980) (citation
omitted).

It explained that the “crucial inquiry is whether a

union member has been discriminated against in the exercise of
his Title I rights.

If so, then regardless of other claims his

Title I cause of action is not preempted by the existence of

11

Title IV claims.”6

Id. (citation and internal quotation marks

omitted).
Plaintiffs argue that they were discriminated against
in the exercise of their Title I rights, when Defendants created
and enforced the “Ad Hoc Employer Interference Rule,”
interpreting § 481(g) so broadly that it encompassed speech and
assembly rights clearly protected by Title I.

See, e.g.,

Preliminary Injunction Motion at 1; Mem. in Opp. to Motion to
Dismiss at 2.

Specifically, they argue that: § 481(g) does not

cover Yuh’s purported interference since it did not involve
either direct or indirect expenditures; and the evidence
Defendants have put forth (and upon which the Dias Report and
Mowrey Decision relied) is in dispute.

The Court agrees that

there are genuine issues of material fact as to whether
Defendants’ interpretation of § 481(g) was pretextual and
unreasonable, such that it could chill union members’ Title I
rights.
First, there is a dispute of fact as to whether, in
reaching their conclusions, the Dias Report and the Mowrey
Decision relied on non-monetary acts, which are not prohibited by
Title IV.

The Mowrey Declaration shows that Mowry relied on the

6

The Court notes that the out-of-circuit cases that
Defendants cite to the contrary, [Reply at 5-7,] have not been
endorsed by the Ninth Circuit and do not persuade the Court to
abandon the approach described in Kupau.
12

Dias Report in deciding to void the June Election.
Mowrey Ltr. to Akamu; Mowrey Decl. at ¶¶ 9-11.]

[7/10/14

In his report,

Dias wrote that the DOL, Office of Labor Management Standards
(“the Standards”), “strictly prohibit[] the use of employer funds
or employer support on behalf of any candidate.”
pg. 312 (emphasis added).]

[Dias Report at

However, the Standards, which Dias

attaches to his declaration, do not go so far as to prohibit
employer support.

The section of the Standards titled “Union and

Employer Funds” states, inter alia:
•A union or employer may not contribute money or
anything of value (such as the use of facilities,
equipment, or supplies) to promote the candidacy
of any individual in a union officer election.
. . . .
•Any expenditure of union or employer funds on
behalf of a candidate, even if the amount is
small, is a violation of federal law.
•The use of union/employer funds or facilities is
a violation of federal law even if union officials
or the employer do not know about or approve of
the use.
•The prohibition against the use of union and
employer funds applies to direct expenditures from
the union or employer as well as indirect
expenditures including:
<

campaigning on time paid for by the
union or employer

<

use of union/employer owned or leased
equipment such as telephones, fax
machines and copy machines

<

use of union/employer supplies such as
stamps, paper, and envelopes
13

. . .
<

use of union/employer property or
facilities

. . . .
[Dias Report, Exh. 6 (Standards) at pg. 373.]

Taken together,

the Standards prohibit the use of an employer’s money or
something of monetary value, not simply “employer support.”
The Standards are consistent with the case law.

The

most expansive reading of § 481(g) that the Court is aware of
limits § 481(g) to money or things of value as well.7

For

example, in Donovan v. Local Union 70, International Brotherhood
of Teamsters, Chauffeurs, Warehousemen, & Helpers of America, 661
F.2d 1199, 1202 (9th Cir. 1981), the Ninth Circuit upheld a
decision finding that, when union members borrowed an employer’s
trailer and used it to post election signs, they violated
§ 481(g).

See also Solis v. Local 9477, 798 F. Supp. 2d 701, 705

(D. Md. 2011) (“Accordingly, the Court holds that use of an
employer’s email system to promote a candidate in a union

7

The support that Defendants cite is not to the contrary.
[Mem. in Supp. of Motion to Dismiss at 24-26.] The cases from
other circuits and administrative decisions from the 1960s,
1970s, and early 1980s, as summarized in the DOL publications,
[id. at 24-26,] show that an employer may not use his position as
an employer of union members to exert pressure on those members
to vote for a particular candidate, nor use indirect expenditures
to assist in campaigning. None of these acts are at issue. The
sole issue implicated in this case is the mailing of campaign
literature, which is disputed, and discussed, supra.
14

election constitutes a violation of the LMRDA.”).

Another Ninth Circuit opinion shows that the limits on
contributions of unions and employers focus on whether money was
spent to support a candidate:
The agreed facts fully justify the district
court’s finding of a union violation of Section
401(g) with respect to the election for the office
of president. They disclose that the
International donated materials, secretarial help
and the use of its facilities to print advertising
leaflets for Kenneth Rose, the Local’s incumbent
president, which Rose used in conducting his
successful campaign for reelection.
The expense was undoubtedly ‘minimal,’ as
appellees argue, but it nevertheless reflected the
outlay of a sensible sum of union money. Indeed
the International, shortly after the Secretary
began his investigation and made known his
interest in the matter, presented Rose a bill for
$13.04, which he immediately paid.
The legislative history of the Act does not
indicate that Congress intended to place a limit
on the amount that a union might lawfully spend to
aid a candidate for office or that it meant to
encourage troublesome factual disputes over how
much (or little) money constitutes a ‘de minimis'
amount; and the language of the provision itself
is clear and unambiguous. It provides in terms
that ‘no moneys’ of a union shall be spent to
promote the candidacy of any person for union
office.
Shultz v. Local Union 6799, United Steelworkers of America, 426
F.2d 969, 972 (9th Cir. 1970).

These cases reinforce the plain

language of § 481(g) and its implementing regulations, and are
consistent with the Standards, that direct and indirect employer

15

expenditures are prohibited, but not employer support.

Since

there is a genuine dispute of fact as to whether the Dias Report
and Mowrey Decision relied on this clearly mistaken
interpretation, summary judgment is not warranted at present.8
Second, there are issues in dispute as to Yuh’s
purported interference that provide the basis for the Dias Report
(and, in turn, the Mowrey Decision).

In his report, Dias

analyzes the evidence he includes as exhibits, and then
concludes, “[Yuh] did actively campaign against candidates
Damien Kim and Peter Akamu and for candidates Craig Inagaki and
Harry Ono by, mailing out anonymous campaign material, handdistributing campaign fliers, speaking to union member work
groups and soliciting support from individual union members in
direct violation of the LMRDA.”

[Dias Report at pg. 314.]

As

discussed supra, the only one of these acts conceivably
prohibited by § 481(g) is the mailing out of campaign fliers,
since it implicates expenditures, i.e., funds for stamps,
photocopies, and/or mailing materials like paper and envelopes.

8

Plaintiffs also provide, in the Declaration of Gerald Yuh
(“Yuh Declaration”), evidence that Dias may have harbored a
grudge against Yuh, and thus have had a motive to interpret
§ 481(g) overbroadly. [Mem. in Opp. to Motion to Dismiss, Yuh
Decl. at ¶¶ 29-35 (Yuh’s refusing to exert undue influence
regarding scholarship program for Dias); id., Decl. of Celeste
Kuuipo Lacuesta (attesting that Dias confided in her that he was
working to remove Yuh from union leadership).] While this
evidence does not prove pretext, it further supports Plaintiffs’
Title I theory of discriminatory enforcement of § 481(g).
16

However, Plaintiffs have offered evidence to dispute all of the
evidence of interference, including the mailing.
The Exhibits to the Dias Report include:
•a June 24, 2014 email from union member Dean Kauhu, recounting
an incident from April 2014, in which Yuh approached him
with Inagaki while at a restaurant and encouraged him to
vote for the Reform Slate; [id., Exh. 7 at pg. 396;]
•Dias’s notes regarding a conversation with union member
Jared Ishiki regarding a meeting in February or March 2014
run by Yuh about problems with the current Local 1186
administration; [id. at pg. 398;]
•union member Herman Carpio’s unsworn declaration stating that
Yuh privately gave him campaign materials and asked Carpio
to distribute them; [id. at pg. 383;] and
•photocopies of anonymous mailers sent to union members,
criticizing the current local administration, including one
to Robert T. Aquino that has a return address, which Dias
states is Yuh’s [id., Exh. 8 at pgs. 400-35].9
This is the sum and substance of the documentary support for the
Dias Report’s recommendation to void the June Election.10

9

Dias also concludes that these mailers came directly from
Yuh because: they are similar to those used by Yuh in his own
campaign in 2011; [Dias Report, Exh. 9 at pgs. 437-53;] and Yuh
may have had access to the union mailing list from his time as a
union officer, [id. at pgs. 313-14,] which Yuh denies.
10

Dias also offers extremely truncated excerpts from
purported audio recordings of: a thirty-minute talk that Yuh gave
to union members in October 2013 denouncing the union leadership;
and testimony Yuh gave before the Honolulu City Council opposing
reappointment of Kim to the Honolulu Rail Transit Board. [Dias
Report, Exh. 7 at pgs. 379-82.] Beyond the fact that they are
directly disputed by the Yuh Declaration, since these exhibits
are incomplete and not authenticated, the Court gives them little
weight. Finally, he also offer notes of conversations with Yuh
and Inagaki, but the Yuh and Inagaki declarations (attached to
the memorandum in opposition to the Motion to Dismiss) dispute
the substance of these.
17

On the other hand, Plaintiffs offer the following sworn
evidence to rebut the purported acts of interference:
•the declaration of Kaohu, stating that his email relating to the
April 2014 incident at the restaurant was taken out of
context and Yuh was not campaigning; [Mem. in Opp. to Motion
to Dismiss, Decl. of Dean Kaohu;]
•the declaration of Yuh’s friend and former colleague,
Blane Mitsunami, attesting that union members regularly
approach Yuh for advice regarding the union, and not the
other way around, and that he organized and ran the meeting
that Ishiki attended, not Yuh; [id., Decl. of
Blane Mitsunami at ¶¶ 5-10;] and
•the declaration of Gerald Yuh, stating that: he is regularly
approached by union members who engage him in conversations
about the union and its administration; [id., Yuh Decl. at
¶¶ 23, 39;] Carpio called Yuh to tell him he was pressured
to make the statement in the Dias Report against Yuh, and
that Yuh had never given Carpio the campaign materials to
hand out; [id. at ¶¶ 47, 49-51;] and Yuh did not have access
to the mailing list, did not send out any of the mailers
and, in fact, he himself received one with a personalized
note to him [id. at ¶¶ 63-70; id., Exh. 15 (mailer with
note)].
While Plaintiffs’ evidence does not affirmatively prove that Yuh
did not engage in the campaigning that Dias reports, it is
sufficient to create a genuine issue of material fact as to these
matters.

Taken in the light most favorable to Plaintiffs,

genuine issues of fact remain as to whether the Mowrey Decision
to void the June Election was based on a clearly erroneous and
pretextual analysis of § 481(g), and whether the Dias Report had
a sound factual basis.

See Safe Air, 373 F.3d at 1040 n.4.

The Court FINDS that Plaintiffs’ claims are not
preempted by Title IV to the extent that they allege that

18

Mowrey’s decision to void the election results relied on findings
of non-monetary employer support, and thereby chill Plaintiffs’
Title I rights.

The Court thus DENIES the Motion to Dismiss as

to Plaintiffs’ Title I claims because genuine issues remain as to
whether Mowrey used Yuh’s non-financial support as a basis for
his decision, that determination disadvantaged Plaintiffs, and
Plaintiffs can prove non-hypothetical damages.
F.3d at 1040; Kupau, 622 F.2d at 455.

See Safe Air, 373

The Court GRANTS the

Motion to Dismiss for lack of subject matter jurisdiction as to
all other matters as being preempted by Title IV.
CONCLUSION
On the basis of the foregoing, Plaintiffs’ Motion for a
Preliminary Injunction, filed July 21, 2014, is HEREBY DENIED as
moot; and IBEW and Dias’s Motion to Dismiss for Lack of Subject
Matter Jurisdiction, filed August 6, 2014, is HEREBY GRANTED IN
PART AND DENIED IN PART.
IT IS SO ORDERED.

19

DATED AT HONOLULU, HAWAII, September 30, 2014.

/s/ Leslie E. Kobayashi
Leslie E. Kobayashi
United States District Judge

HARRY ONO, ET AL. VS. HAROLD DIAS, JR., ET AL; CIVIL 14-00237
LEK-KSC; ORDER DENYING AS MOOT PLAINTIFFS’ MOTION FOR A
PRELIMINARY INJUNCTION; AND GRANTING IN PART AND DENYING IN PART
DEFENDANTS INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS AND
HAROLD DIAS, JR.’S MOTION TO DISMISS FOR LACK OF SUBJECT MATTER
JURISDICTION

20