Perez v. Association of Professional Flight Attendants
Filing
41
Memorandum Opinion and Order... The court ORDERS that plaintiff's motion for summary judgment be, and is hereby, granted, and that defendant's motion for summary judgment be, and is hereby, denied. The court further ORDERS and DECLARES th at the election for the offices of national president, national vice president, national secretary, and national treasurer of defendant for which voting concluded January 9, 2016, is void. The court further ORDERS that defendant conduct a new electio n for the offices of national president, national vice president, national secretary, and national treasurer (including any runoff, should one be necessary) under the supervision of plaintiff and in accordance with the constitution and bylaws of defe ndant insofar as they are not inconsistent with the provisions of 29 U.S.C. §§ 481-83. The court further ORDERS that plaintiff, upon completion of the supervised election (including any runoff, should one be necessary) promptly certify to the court the names of the persons elected. (Ordered by Judge John McBryde on 9/26/2017) (wxc)
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IN THE UNITED STATES DISTRICT \COURT
2 6 2017
NORTHERN DISTRICT OF TEXAf
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FORT WORTH DIVISION
CLER_:.-_, J.S. D~E'".~.'lSCT CG~~:~T
By
R. ALEXANDER ACOSTA', SECRETARY §
§
___
D_c~pl-'.ty;.__ _ _ _ __
OF LABOR,
§
Plaintiff,
§
§
vs.
§
§
ASSOCIATION OF PROFESSIONAL
FLIGHT ATTENDANTS,
§
Defendant.
NO. 4:16-CV-1057-A
§
§
§
MEMORANDUM OPINION AND ORDER
Came on for consideration the cross-motions for summary
judgment filed by plaintiff, R. Alexander Acosta, Secretary of
Labor, and defendant, Association of Professional Flight
Attendants. The court, having considered the motions, the
responses, the replies, the record, the summary judgment
evidence, and applicable authorities,
finds that plaintiff's
motion should be granted and that defendant's motion should be
denied.
I.
Background
Defendant is the union for flight attendants employed by
American Airlines. As a national labor organization engaged in an
industry affecting interstate commerce, defendant is subject to
1
At the time the action was filed, Thomas E. Perez was Secretary of Labor. That position is now
filled by R. Alexander Acosta. Accordingly, the caption of the action is amended to reflect such change.
Fed. R. Civ. P. 25(d).
the requirements of the Labor-Management Reporting and Disclosure
Act of 1959, 29 U.S.C.
§§
401-531 ("LMRDA"). Plaintiff received a
complaint that an election conducted by defendant in January 2016
was conducted in violation of the LMRDA. Plaintiff investigated
and filed this suit alleging that
401(a), 29 U.S.C.
§
(1) defendant violated LMRDA
§
481(a), by using an electronic voting method
in the January 9, 2016 election that permitted voters to be
linked to their votes, and (2) defendant violated LMRDA
29 U.S.C.
§
§
401(c),
481(c), by denying a candidate's right to have an
observer in the January 9, 2016 election, because the electronic
voting system did not permit an observer to verify that a vote
was recorded and tallied accurately. Doc.' 1.
II.
Requirements of the LMRDA
A purpose of the LMRDA is to ensure fair and democratic
union elections. Wirtz v. Hotel, Motel and Club Emps. Union,
Local 6, 391 U.S. 492, 497
(1968). Thus, 29 U.S.C.
§
481(a)
requires that elections be conducted by secret ballot. Pursuant
to the LMRDA,
"[s]ecret ballot" mean the expression by ballot, voting
machine, or otherwise, but in no event by proxy, of a
choice with respect to any election or vote taken upon
any matter, which is cast in such a manner that the
'The "Doc.
"reference is to the number of the item on the docket in this action.
2
person expressing such choice cannot be identified with
the choice expressed.
29 U.S.C.
§
402(k). The union has a duty to insure that ballots
are secret not just if voters want them to be. Marshall v. Local
Union 12447, 591 F.2d 199, 204
(3d Cir. 1978). The statutory
mandate is for a vote that cannot be identified with the voter.
Brennan v. Local 3489, 520 F.2d 516, 522
(7th Cir. 1975).
And, union elections must provide candidates the right to
have an observer at the polls and at the counting of the ballots.
29 U.S.C.
§
481(c). This right encompasses every phase and level
of the counting and tallying process and the totaling, recording,
and reporting of tally sheets. 29 C.F.R.
§
452.107(a).
For the court to nullify election results, the court must
find that a substantive violation of the LMRDA occurred and that
the violation "may have affected the outcome" of the election. 29
U.S.C.
§
482 (c) (2). If a violation of
§
481 occurred, then there
is a presumption that the outcome of the challenged election may
have been affected. Hugler v. Local 689, No. GJH-16-2052, 2017 WL
3085321, at *4 (D. Md. July 18, 2017); Chao v. Local 54, 166 F.
Supp. 2d 109, 112-13 (D.N.J. 2001). In other words, proof of a
substantive violation establishes a prima facie case that the
outcome of the election may have been affected and shifts the
burden to the union to show that the established violation did
not affect the election results. Wirtz, 391 U.S. at 506-07.
3
In the secret ballot context, it does not matter whether
anyone actually took advantage of the ability to identify how any
particular member voted. Marshall v. Local Union 12447, 591 F.2d
199, 203 n.10
existed.
(3d Cir. 1978). It is enough that the possibility
Id.
III.
Grounds of the Motions
Plaintiff urges two grounds in support of his motion. First,
the voting system used in the January 2016 election made it
possible to link voters to their votes, in violation of § 481(a)
Second, the voting system did not permit candidates to have an
observer at the polls and at the counting of ballots, in
violation of §481(c). Because these violations may have affected
the outcome of the election, the election must be voided and a
new election conducted under plaintiff's supervision.
Defendant likewise urges two grounds in support of its
summary judgment motion. First, no rational trier of fact could
find that the violation of§ 481(a)
"may have affected" the
election's outcome. Second, no rational trier of fact could find
that § 481(c) was violated in the manner claimed by plaintiff.
4
IV.
Analysis
A.
Ballot Secrecy
Defendant does not dispute that the requirement of ballot
secrecy under§ 481(a) was violated because it was possible to
votes to be linked with voters. 3 Instead, defendant focuses on
its argument that there is no way the violation "may have
affected" the election since defendant's members could not have
known of the actual "facts surrounding the alleged ballot-secrecy
violations in this case." Doc. 37 at 4.
The key, as noted, supra, is not whether anyone actually
discovered how another voted, but rather that the potential
existed. Marshall, 591 F.2d at 203 n.lO & 204; Brennan, 520 F.2d
at 522 (the statutory mandate is for a vote that cannot be
identified with the voter) . Defendant has not pointed to any
authority to support its contention that voters had to have known
of the potential for there to have been a statutory violation. In
essence, it is saying that voters had to have been aware of the
mechanism by which their votes could be determined in order for
there to have been a violation of ballot secrecy. The argument is
nonsensical. Especially given recent events, common sense would
indicate that any number of people might fear their computerized
3
The summary judgment evidence establishes that this could have occurred in two different ways.
5
votes could be traced to them, whether they understood how such
tracing would actually be accomplished. And, indeed, that less
than half of the eligible members actually voted would indicate
that there may have been some hesitation based on fear of votes
being discoverable.
The court is likewise not impressed by defendant's argument
that it need only take "all reasonable steps• to guard against a
violation of ballot secrecy. That is not what the statute
requires. It mandates that a union elect its officers "by secret
ballot.• 29 U.S.C.
§
481(a).
The court is not persuaded that the testimony upon which
defendant relies-that there is •just no way• defendant's members
could have known of the facts surrounding the ballot-secrecy
violations-is sufficient to overcome the presumption that the
election may have been affected by the violation.
B.
Observer Requirement
Section 48l(c) requires unions to provide adequate
safeguards to insure a fair election,
•including the right of any
candidate to have an observer at the polls and at the counting of
the ballots.• The regulations concerning election procedures
emphasize that the right to an observer •encompasses every phase
and level of the counting and tallying process, including the
counting and tallying of the ballots and the totaling, recording,
6
and reporting of tally sheets." 29 C.F.R. § 452.107(a). For
example, where an election is conducted by mail, the regulations
provide that a candidate "must be permitted to have an observer
present at the preparation and mailing of the ballots, their
receipt by the counting agency and at the opening and counting of
the ballots." 29 C.F.R. § 452.107(c).
In this case, defendant concedes that the observer
requirement could not be, and was not, met. It argues that
because it was impossible to comply with the specific observer
requirement, it was entitled to adopt and implement alternative
safeguards to substitute for the statutory requirement. Doc. 37
at 12-13; Doc. 28 at 10-21. As with its "all reasonable steps"
argument, however, the statutory language is contrary to its
position. That defendant cannot or will not provide observers
with a means of insuring that votes are accurately recorded and
tallied does not excuse its compliance with§ 481(c) . 4
4
Notably, defendant contends that it employs alternative technology-based safeguards like those
used by the State of Texas in its electronic voting machines, but does not say that it has made its system
available to testing boards, i.e., observers. Rather, it contends that its members should be bound by the
say so of its expe1ts that the system works. The emnt takes no position on whether a system like that
employed by the State of Texas would meet the requirement for observers.
7
v.
Order
The court ORDERS that plaintiff's motion for summary
judgment be, and is hereby, granted, and that defendant's motion
for summary judgment be, and is hereby, denied.
The court further ORDERS and DECLARES that the election for
the offices of national president, national vice president,
national secretary, and national treasurer of defendant for which
voting concluded January 9, 2016, is void.
The court further ORDERS that defendant conduct a new
election for the offices of national president, national vice
president, national secretary, and national treasurer (including
any runoff, should one be necessary) under the supervision of
plaintiff and in accordance with the constitution and bylaws of
defendant insofar as they are not inconsistent with the
provisions of 29 U.S.C.
§§
481-83.
The court further ORDERS that plaintiff, upon completion of
the supervised election (including any runoff, should one be
necessary) promptly certify to the court the names of the persons
elected.
SIGNED September 26, 2017.
8
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