Corner v. Solis

Filing 40

MEMORANDUM Opinion and Order Signed by the Honorable Harry D. Leinenweber on 6/1/2012:Mailed notice(wp, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

MARY CORNER,
Plaintiff,
Case No. 11 C 8652
v.
Hon. Harry D. Leinenweber
HILDA SOLIS, Secretary of
Labor,
Defendant.

MEMORANDUM OPINION AND ORDER
Before the Court is Defendant’s Motion to Dismiss, or, in
the Alternative, for Summary Judgment.

For the reasons stated

herein, the Motion for Summary Judgment is granted in part and
the matter is remanded in part to the Department of Labor for a
supplemental statement of reasons.
I.

BACKGROUND

Plaintiff Mary Corner seeks administrative review of the
Secretary of Labor’s decision not to challenge the April 2011
election for Northwest Illinois Area Local 7140, American Postal
Workers Union, AFL-CIO (“NWIAL” or “Local”).

Plaintiff has

already filed one suit challenging the election results, which
was

dismissed

for

lack

of

jurisdiction.

Judge

Gary

Feinerman’s opinion well summarizes the underlying facts.

S.
See

Corner v. Engelhart, 11 C 5183, 2011 WL 4688723 (N.D. Ill.

Oct. 4, 2011) (hereinafter, “Corner III”).

Briefly, however,

Plaintiff lost the race for NWIAL President. She filed a protest
claiming

that

three

winning

incumbent

candidates

—

Jackie

Engelhart (President), David Baskin (Vice President), and Linda
Retel (Secretary) — were ineligible to run because each had
failed to pay their dues in the year before the election, and
therefore had not been in good standing for 12 months as required
by the NWIAL Constitution. Plaintiff bases her claim on the fact
that the

“dues

check-off

lists”

— which

reflect

whether

a

member’s dues were withheld from her U.S. Postal Service (“USPS”)
paycheck in a given pay period, and then paid directly to the
union — show that each incumbent failed to pay his or her dues
through the check-off withholding system at least once in the
year before the election.
NWIAL has an Election Committee (of three members and one
alternate) which handles election protests.

On May 5, 2011, two

committee members and the alternate rejected Plaintiff’s election
challenge on behalf of the Committee.

Plaintiff appealed to the

National Election Appeals Committee (the “NEAC”). Shortly before
the NEAC rejected all of Plaintiff’s claims, Maria Porch-Clark
(“Porch-Clark”), the Committee chairperson, purported to remove
the

three

incumbents

from

office

and

install

Plaintiff

as

President. She had not joined the prior Committee ruling, and

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noted

in

her

letters

that

she

acted

alone

in

ousting

the

incumbents.
After the NEAC rejected her claims, Plaintiff appealed the
decision to the Department of Labor (the “Department”).

The

Department investigated and found that the lists reflected dues
that the USPS withheld from its employees’ pay, but not whether
members paid their dues by any other method (as allowed by the
Local’s rules).

As described in greater detail below, the

Secretary found that the incumbents were eligible to run.

On

December 28, 2011, the Department sent Plaintiff a statement of
reasons explaining the denial.
Defendant has moved to dismiss the Complaint, or, in the
alternative, for summary judgment.

Plaintiff filed a “Motion to

Denied [sic] Defendants [sic] Motion to Dismiss or, in the
Alternative, for Summary Judgment.”

It appears that this was

intended to be a response to Defendant’s Motion, not Plaintiff’s
own Motion for summary judgment.
II.
A.

LEGAL STANDARD
Motion to Dismiss

On a Motion to Dismiss under Rule 12(b)(6), the Court
accepts as true all well-pleaded facts in the Complaint and draws
all inferences in the plaintiff’s favor.

Cole v. Milwaukee Area

Tech. Coll. Dist., 634 F.3d 901, 903 (7th Cir. 2011).

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A

complaint must contain a “short and plain statement of the claim
showing that the pleader is entitled to relief.”

FED . R. CIV .

P. 8(a)(2). It “must contain sufficient factual matter, accepted
as true, to state a claim to relief that is plausible on its
face.”

Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949-50 (2009).
B.

Summary Judgment

Summary judgment is appropriate if the movant “shows that
there is no genuine dispute as to any material fact and [that it]
is entitled to judgment as a matter of law.”

FED . R. CIV .

P. 56(a). If the movant meets its burden, the non-movant must
present

facts

judgment.

showing

a

genuine

dispute

to

avoid

summary

See Celotex Corp. v. Catrett, 477 U.S. 317, 323–24

(1986). Courts construe the facts in the non-movant’s favor, but
where the record as a whole “could not lead a rational trier of
fact to find for the nonmoving party, there is no genuine issue
for trial.”

Ricci v. DeStefano, 129 S.Ct. 2658, 2677 (2009)

(citation omitted).
III.

DISCUSSION

Before proceeding to the merits, the Court must decide what
evidence

to

consider.

In

a

motion

to

dismiss

under

Rule

12(b)(6), consideration is generally limited to the complaint and
documents attached to it.

If a party presents extraneous matter

which the court does not strike, the court must deem the motion

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one for summary judgment and give the other side a chance to
respond in kind.

FED . R. CIV . P. 12(d).

However, if the motion

is labeled as one alternatively seeking summary judgment, that
sufficiently notifies the opposing party.

Miller v. Herman, 600

F.3d 726, 733 (7th Cir. 2010). Here, Plaintiff clearly responded
to this motion, in part, as one for summary judgment.
many of the documents are unnecessary.

However,

As discussed below,

review in this case is largely limited to the face of the
Secretary’s Statement of Reasons.

See Corner v. Solis, 380

Fed.Appx. 532, 535 (7th Cir. 2010) (hereinafter, “Corner II”).
A.

Motion to Strike

Plaintiff seeks to strike as irrelevant any reference to her
previous suit challenging this election.

Plaintiff filed that

suit before she filed her appeal with the Department, so it does
not dispose of this APA review action.

Nonetheless, as part of

the narrative of this dispute, that case and opinion are relevant
and subject to judicial notice (though not for the truth of the
matter asserted).
Resolution

Corp.,

See General Elec. Capital Corp. v. Lease
128

F.3d

1074,

1081

(7th

Cir.

1997).

Accordingly, Plaintiff’s Motion to Strike is denied.
B.

Motion for Summary Judgment

Candidate eligibility challenges in union elections fall
under Title IV of the Labor-Management Reporting and Disclosure

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Act (“Title IV” of the “LMRDA,” 29 U.S.C. §§ 481 et seq.), and
must be resolved through the procedure set out in that section.
Denov v. Chicago Fed’n of Musicians, Local 10-208, 703 F.2d 1034,
1037 (7th Cir. 1983).
exhaust

her

union’s

A member with an election grievance must
remedies,

and

may

then

appeal

to

the

Department of Labor. See Chao v. Local 473, Int’l Bhd. of
Teamsters, 467 F.3d 1014, 1017 (7th Cir. 2006).

Next, the

Secretary of Labor investigates the complaint; if she finds
probable cause to believe that a Title IV violation occurred
which may have affected the election’s outcome, she is to file
suit to set aside that election.

See id.; 29 U.S.C. § 482(b).

Plaintiff exhausted her union remedies and properly appealed
to the Secretary. However, the Secretary found no probable cause
to believe that a violation had occurred, and issued a Statement
of Reasons explaining her findings. That Statement of Reasons is
subject to review under the Administrative Procedures Act (“APA,”
5 U.S.C. § 500 et seq.).

See Dunlop v. Bachowski, 421 U.S. 560,

564-65 (1975) overruled in unrelated part by Local No. 82,
Furniture and Piano Moving, Furniture Store Drivers, Helpers,
Warehousemen and Packers v. Crowley, 467 U.S. 526, 550 n. 22
(1984).

Such review, however, is exceedingly narrow.

Except in

the rare cases not presented by the allegations here, courts are
to determine only whether the statement of reasons, on its face,

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is so irrational as to be arbitrary, capricious, or contrary to
law. Corner v. United States Dep’t of Labor, 219 Fed.Appx. 492,
493-94 (7th Cir. 2007) (hereinafter, “Corner I”).
unless

the

statement

of

reasons

is

facially

That is,

arbitrary

and

capricious, the factual findings of the Secretary are outside the
scope of judicial review.
Plaintiff

makes

Corner II, 380 Fed.Appx. at 535.

three

discernible

objections

to

the

Secretary’s decision and statement of reasons. First, she argues
that the Secretary should have closed Corner’s Complaint as moot
because Porch-Clark had already ousted the ineligible candidates.
Second, though she speaks of the Secretary illegally changing the
law and rules, Plaintiff appears to argue that the Secretary
applied the wrong law in finding the incumbents eligible.
Finally, she argues that the Secretary’s judgments were factually
faulty. The Court considers each allegation below.
1.

Mootness

Plaintiff appears to argue both that (a) her appeal was moot
from the beginning because Porch-Clark had already removed the
three incumbents from office, and (b) once the investigator
learned of Porch-Clark’s actions, the investigation should have
ended (presumably, by validating those actions).
Plaintiff

argues

that

once

she

challenged

the

Essentially,
incumbents’

qualifications, the Secretary’s responsibility was “to see if the

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violation had been remedied.” Am. Compl. 4.
the statutory requirements.

She misunderstands

The Secretary’s job was not solely

to determine whether the alleged violation of the eligibility
rules had been remedied, but also to determine whether it had
occurred at all.

See 29 U.S.C. § 482.

If Porch-Clark’s actions had mooted Plaintiff’s Complaint
from the beginning, she had no need to file it.

Plaintiff’s

decision to do so reflects the reality that Porch-Clark’s action
had not been recognized as valid by any union authority (or, for
that matter, Judge Feinerman.

See Corner III, 2011 WL 4688723,

at *3).
As for her claim that the investigation should have ended
when the investigator learned of Porch-Clark’s actions, Plaintiff
offers

no

authority

for

the

proposition

that

Porch-Clark’s

unilateral action deprived the Secretary of jurisdiction to
investigate. Although the Secretary may not sue to challenge a
union

election

unless

her

investigation

confirms

“that

a

statutory violation probably affected the outcome of the election
and has not been remedied already[,]” Corner II, 380 Fed.Appx. at
535,

that

does

not

mean

that

any

allegedly

remedial

act,

authorized or not, deprives her of jurisdiction.
Furthermore, though Plaintiff argues (without supporting
evidence)

that

the

Committee

habitually

acted

through

the

chairperson alone, she proffers no authority under which the
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chairperson could overrule the prior ruling of the committee
majority.

(She concedes that the ruling came from at least two

genuine committee members. Id.) Cf. Constitution of the Nw. Ill.
Area Local, Am. Postal Workers Union, AFL–CIO, art. 10, sec. 2
(the “NWIAL Constitution”), available at http://www.nwial.com/
PDF%20 files/NWIAL%20Constitution%2002-13-2011.pdf.
Plaintiff did not properly exhaust her claim that PorchClark properly ousted the incumbents by presenting it to the
Secretary, and has not created a genuine issue as to PorchClark’s authority to do so.

Having sought an investigation,

Plaintiff can hardly complain that the Secretary fulfilled her
statutory obligation to conduct one, rather than accept the sayso of a chairperson admittedly acting against the majority.
Accordingly, the Secretary is entitled to summary judgment on
this claim.
2.

Engelhart’s Eligibility

29 U.S.C. § 481(e) makes every union member in good standing
eligible

to

hold

union

office,

subject

to,

inter

alia,

“reasonable qualifications uniformly imposed.”

“Member in good

standing”

the

includes

anyone

who

has

fulfilled

membership

requirements, and has neither withdrawn nor “been expelled or
suspended

from

membership

after

appropriate

proceedings

consistent with . . . the Constitution and bylaws of [that

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union].”

29 U.S.C. § 402.

A rule predicating good standing on

prompt dues payment is only “reasonable” if “(1) it provides a
reasonable grace period during which members may make up missed
payments without loss of eligibility for office, and (2) the
period of time involved is reasonable.”

29 C.F.R. § 452.37(b).

The NWIAL Constitution creates a progressive discipline system
for late payments, which require warnings and notice before
membership is suspended. NWIAL Const. art. 14, sec. 2 (b, c, d).
The Secretary found that the Local was reasonable to require
candidates to be current in dues when nominated.
The Secretary’s decision that Engelhart was eligible was not
arbitrary or capricious.

The Statement of Reasons makes clear

that this claim was investigated.

The investigator found that

while Engelhart’s payments were not reflected on the Dues CheckOff List, this is because she was employed by the NWIAL, not
USPS.

It found that Engelhart unfailingly paid her dues a

different way, as permitted by the NWIAL Constitution. See NWIAL
Const. art. 14, sec. 2(b).
Plaintiff’s continued insistence that being listed on the
Dues Check-Off List is the only way to be eligible for election
appears to be based on her belief that the NWIAL Constitution
incorporates

by

reference

the

Election

Committee

Rules

and

Procedure manual. That manual states that whether a candidate has
been a member for one year “can be determined by reviewing the
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dues check-off lists for the past year.”

Am. Compl. Ex. E.

The

Department would be reasonable to find that the manual is a semiformal guidance document which neither could nor did supplant the
NWIAL constitutional provision which permits dues to be paid by
means other than the check-off list.

The NWIAL Constitution

merely states that the Election Committee may refer to the
manual.

See NWIAL Const. art. 11 sec. 6; Corner II, 380

Fed.Appx. at 536 (noting that the Election Committee Rules and
Procedures manual “is not part of the [NWIAL] Constitution.”).
Accordingly, the Secretary did not rewrite the NWIAL Constitution
in concluding that Engelhart was eligible to run for union
office, and she is entitled to summary judgment on this claim.
3.

Baskin’s Eligibility

Similarly, the Secretary’s finding on Baskin’s eligibility
was not arbitrary or capricious.

The investigation found that

Baskin had no dues withheld in Pay Period 20, but that he made up
the

delinquency

in

Period

24.

Plaintiff

argues

that

the

Secretary was wrong, pointing to the check-off list for pay
Period 24 (which shows only one entry for Baskin).

Am. Compl.

Ex. E. This Court accepts the factual findings of the Secretary,
Corner II, 380 Fed.Appx. at 535, and in any event, Plaintiff has
given the Court no basis for finding that a second payment in Pay
Period 24 would have appeared on the check-off list.

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Having

investigated

and

reasonably

rejected

Plaintiff’s

claim,

the

Secretary is entitled to summary judgment.
4.

Retel’s Eligibility

Linda Retel’s eligibility is a more complicated question.
In the investigation, the Secretary concluded that Retel did not
pay her dues from April 2010 through early 2011.

Retel, along

with some 80 other employees, had been involuntarily terminated
and placed on workers’ compensation. The investigation concluded
that when Retel was told that she should pay her dues in cash to
remain in good standing, she authorized the Local to deduct her
unpaid dues from her union paychecks.

Those back dues were

deducted from her paychecks in January and February 2011.

The

investigation also concluded that the APWU has since determined
that members on workers’ compensation need not pay dues to remain
in good standing; therefore, Retel remained in good standing.
Plaintiff attacks this conclusion, stating, for example,
that individuals on workers’ compensation don’t get fired, and
that her printout from the APWU website proves that people
receiving workers’ compensation funds must pay dues to remain in
good standing.

Am. Compl. 5-6 and Ex. I.

Again, however, this

Court must not retry the Secretary’s factual findings.
Corner II, 380 Fed.Appx. at 535.
conclusion

about

the

dues

See

Incidentally, the Secretary’s

policy

for

members

on

workers’

compensation is supported by the APWU’s recent constitutional
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rewrite on that very point.

See Const. of Am. Postal Workers

Union, AFL–CIO, art. 3, sec. 1, available at http://www.apwu.org/
dept/sec-treas/ stconstitution2010.pdf. See also American Postal
Workers Union, National Executive Board Removes Provision in
Conflict

with

Law,

http://www.apwu.org/dept/sec-

treas/stconstitution.htm (last visited May 10, 2012).
Thus, the Secretary’s conclusion that Retel’s 2010 lapse in
dues

did

not

render

her

ineligible

is

not

arbitrary

or

capricious, and the Secretary is entitled to summary judgment.
(Plaintiff also challenges this finding based on § 481(e) and its
regulations, but as discussed below, those provisions do not
apply to Retel.)
There is an additional issue with Retel’s dues, however.
The Secretary determined that shortly before the March nomination
meeting, the Local neglected to withhold Retel’s monthly dues
payments from her paycheck, making her delinquent when she was
nominated.

Even so, the investigator concluded that “[t]he

Local’s failure to deduct the dues after being authorized to do
so should not be used to destroy Retel’s good standing.
generally 29 U.S.C. § 481(e).”

See,

Statement of Reasons, at 2.

Under § 481(e), if a member authorizes her employer to
withhold her dues under a collective bargaining agreement, the
employer’s delay or failure to pay those dues to the union will

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not make the member ineligible for office. Id.

If the employee

has no earnings from which the dues could be deducted, however,
§ 481(e) does not obviate the need to pay dues to remain in good
standing. 29 C.F.R. § 452.37(b).
Plaintiff objects that Retel did not work for the NWIAL
under a collective bargaining agreement, and so § 481(e) does not
protect her.

Indeed, the “see, generally” citation seems to be

a concession that the Secretary was applying the policy behind
the statute, even though the statute did not directly apply.
That is hardly an irrational exercise of discretion. However, if
the Secretary believed that there was probable cause to believe
(a) that a violation occurred (b) which may have affected the
election, but declined to act based on the policy behind an
inapplicable statutory provision, her decision was contrary to
law in that it exceeded her statutory discretion. See Harrington
v. Chao, 372 F.3d 52, 55 (1st Cir. 2004) (after finding probable
cause, the Secretary must sue); Ellis v. Chao, 336 F.3d 114, 120,
122 (2d Cir. 2003)(same).

(It is not clear, however, whether

Retel was still on workers’ compensation and immune from dues
obligations.) Accordingly, this matter will be remanded back to
the agency for a supplemental statement of reasons, limited to
Retel’s unpaid dues from January 28 through March 2011.
Of course, the Secretary is not bound to find that Retel was
in poor standing.

As noted, for example, the NWIAL Constitution
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features a progressive discipline system for late payments, which
requires warnings from the union before adverse action is taken.
NWIAL Const. art. 14, sec. 2 (b, c, d).

See also 29 C.F.R.

§ 452.37(b). Whether Retel was in good standing, and whether any
violation may have affected the election, is a question for the
Secretary on remand, not this Court.

See Dunlop, 421 U.S. at

572-73.
IV.

CONCLUSION

Accordingly, the Court remands the issue of Retel’s missed
dues payment in early 2011 to the Department for a supplemental
statement

of

reasons.

The

Secretary’s

Motion

for

Summary

Judgment is granted as to all of Plaintiff’s other claims.
IT IS SO ORDERED.

Harry D. Leinenweber, Judge
United States District Court
DATE: 6/1/2012

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