United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 10-3264
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Hilda L. Solis, Secretary of Labor, *
United States Department of Labor, *
*
Appellant, *
* Appeal from the United States
v. * District Court for the
* District of Minnesota.
Amalgamated Transit Union, Local *
1005, *
*
Appellee. *
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Submitted: March 15, 2011
Filed: April 28, 2011
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Before WOLLMAN, MURPHY, and GRUENDER, Circuit Judges.
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GRUENDER, Circuit Judge.
Hilda L. Solis, the United States Secretary of Labor (“the Secretary”), appeals
the district court’s1 grant of summary judgment to Amalgamated Transit Union, Local
1005 (“Local 1005”), on the Secretary’s claim that Local 1005’s November 2008
election procedures violated the “adequate safeguards” provision of the Labor-
1
The Honorable Paul A. Magnuson, United States District Judge for the District
of Minnesota.
Management Reporting and Disclosure Act (“LMRDA”), 29 U.S.C. § 481(c). For the
reasons that follow, we affirm.
I. BACKGROUND
Prior to October 2007, Local 1005 represented only bus drivers and other
transport workers employed by MetroTransit, the public transportation organization
for Minneapolis and St. Paul, Minnesota. Because the LMRDA excludes from its
scope labor organizations that solely represent employees of “any State or political
subdivision thereof,” see § 402(e), the LMRDA did not apply to Local 1005. In
October, 2007, Local 1005 was certified as the bargaining representative for a private
bus line based in Rochester, Minnesota. Thereafter, because Local 1005 no longer
represented only public employees, it became subject to the provisions of the
LMRDA. See Celli v. Shoell, 40 F.3d 324, 327 (10th Cir. 1994) (stating that the
LMRDA “cover[s] those [unions] that represent only private sector workers and also
so-called ‘mixed unions,’ i.e., those that deal with both public and private employers
on behalf of their members concerning terms and conditions of employment”).
Thus, after October of 2007, Local 1005’s bylaws were subject to the provisions
of the LMRDA, and any bylaws provision inconsistent with the LMRDA could no
longer be enforced. Article 30 of Local 1005’s bylaws imposed a meeting attendance
requirement for members seeking an elected union office. This requirement stated
that a member was not eligible for any office unless that member “attended not less
than six (6) regular meetings each year during the twenty-four months prior to and
including the nomination meetings” (hereinafter “meeting attendance requirement”).
Local 1005 had enforced the meeting attendance requirement in previous elections,
and the requirement was well known among the membership. However, according
to Section 14.2 of the Amalgamated Transit Union Constitution (“Constitution”), the
meeting attendance requirement applied only to those elections “not covered by the
[LMRDA].” Once its elections were subject to the LMRDA, the Constitution dictated
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that Local 1005 could not enforce the meeting attendance requirement in the bylaws.
Article 30 of the bylaws also required that any office-seeker must have been a union
member for two years prior to the nominations meeting (hereinafter “membership
requirement”). The membership requirement did not present a conflict with the
Constitution, and Local 1005 could enforce this requirement in an election subject to
the LMRDA.
In preparation for Local 1005’s tri-annual election of union officers, Local 1005
scheduled two meetings for September 23, 2008, at which members could nominate
other members interested in running for an elected position. On August 26, 2008,
twenty-nine days before the nominations meetings and nearly three weeks earlier than
required by the bylaws, Local 1005 posted written notices on all of its workplace
bulletin boards and on its website describing the upcoming elections and the
nominations meetings. In those written notices, Local 1005 accurately informed its
members of the only eligibility requirement for a member to run for office:
AS PROVIDED IN ARTICLE 30 OF THE LOCAL BYLAWS: NO
MEMBER SHALL BE ELIGIBLE TO ANY ELECTIVE OR
APPOINTIVE OFFICE, OR AS A DELEGATE OR ALTERNATE OF
THIS LOCAL, OR TO BE ABLE TO ATTEND ANY CAUCUSES OR
SEMINARS UNLESS THEY HAVE BEEN A REGULAR MEMBER
OF THIS LOCAL FOR A PERIOD OF NOT LESS THAN TWO (2)
YEARS.
The written notices did not mention Article 30’s now-inapplicable meeting attendance
requirement; they simply listed the only eligibility prerequisite for candidates in the
November 2008 election—the membership requirement.
Nonetheless, a small number of Local 1005 members expressed confusion to
current officeholders and shop stewards about whether the meeting attendance
requirement applied to the 2008 election. Those inquiries were answered correctly.
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Members who asked whether the meeting attendance requirement still applied were
told that it did not. Local 1005 did not post any other written notices, except for
meeting reminders.
Local 1005’s tri-annual election took place as planned on November 12, 2008.
On November 19, 2008, six Local 1005 members—led by member Thomas
Noland—complained in writing to the Local 1005 Executive Board about the election,
contending that there was widespread confusion about the meeting attendance
requirement. The Executive Board met with Noland and the five other complaining
members and unanimously rejected their complaint on December 1, 2008. After
pursuing other intra-union remedies, Noland dispatched a complaint letter to the
Secretary on February 28, 2009.
The Secretary began an investigation of Local 1005’s November 2008 election
and, soon after, brought this action against Local 1005 pursuant to the “adequate
safeguards” provision of the LMRDA. The Secretary and Local 1005 each moved for
summary judgment. The district court granted Local 1005’s motion and denied the
Secretary’s motion, and the Secretary now appeals.
II. DISCUSSION
We review the district court’s grant of summary judgment de novo. Taylor v.
St. Louis Cnty. Bd. of Election Comm’rs, 625 F.3d 1025, 1026 (8th Cir. 2010) (per
curiam). “Summary judgment is appropriate where, viewing the record in the light
most favorable to the nonmoving party, there are no genuine issues of material fact
and the moving party is entitled to judgment as a matter of law.” Id.
When conducting an election, the LMRDA requires a union to provide
“[a]dequate safeguards to insure a fair election.” 29 U.S.C. § 481(c). Proof of a
violation of the “adequate safeguards” provision is prima facie evidence that the
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violation “may have affected” the outcome of the election, shifting the burden to the
union to prove that the results of the election would have been the same absent the
violation. See Wirtz v. Hotel, Motel & Club Emps. Union, Local 6, 391 U.S. 492,
506-07 (1968). If the Secretary proves by a preponderance of the evidence that a
violation of the “adequate safeguards” provision has occurred, and if that violation
“may have affected the outcome of an election,” the court must declare the election
void and order a new election under the Secretary’s supervision. See § 482(c). The
Secretary’s regulation interpreting the “adequate safeguards” provision provides two
specific examples of such safeguards, summarized by the Ninth Circuit as: “(1) if one
candidate is permitted to have his nickname on the ballot, the other should enjoy the
same privilege, and (2) voting instructions must be intelligible.” Brock v. Writers
Guild of Am., West, Inc., 762 F.2d 1349, 1357 (9th Cir. 1985) (citing 29 C.F.R.
§ 452.110). “The inclusion of these mechanical procedural safeguards as examples
of the required safeguards suggests that the Secretary, like Congress, construed the
adequate safeguards provision narrowly.” Id. While the LMRDA requires local
unions to provide its members with “adequate notice” of its requirements for seeking
elected office and for voting, see Brock v Dist. 6, United Mine Workers of Am., 1985
WL 13586, at *5 (6th Cir. Aug. 9 1985) (unpublished per curiam), “perfect notice” is
not required, see Marshall v. Provision House Workers Union, Local 274, 623 F.2d
1322, 1325 (9th Cir. 1980) (per curiam).
As an initial matter, the Secretary argues that the district court applied the
wrong legal standard in its analysis. The Secretary points to the district court’s
statement that the Secretary’s “allegations in this case simply do not reveal any sort
of corruption, dictatorial practices, or racketeering, or even anything more than
sloppiness.” We find this argument unavailing. To be sure, the Secretary need not
provide evidence of “corruption, dictatorial practices, or racketeering” to establish a
violation of the “adequate safeguards” provision of the LMRDA. See, e.g., Hotel,
Motel & Club Emps., 391 U.S. at 506-07; Donovan v. Local 10902, Commc’ns.
Workers of Am., AFL-CIO, 650 F.2d 799, 802 (5th Cir. 1981) (per curiam). However,
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the district court did not decide the case on this basis. Rather, the district court
concluded that, although the Secretary “argues that the Union was required to do
more” than post accurate written notices and respond to inquiries appropriately, “[the
Secretary] does not . . . point the Court to any such requirement in the statutes, the
regulations, or the caselaw.” Because the district court found that Local 1005 was not
required to take more safeguards than it did—and not because the Secretary failed to
show evidence of “corruption, dictatorial practices, or racketeering”—the district court
found no violation of § 481(c). Accordingly, we find the Secretary’s position
unpersuasive and proceed to her central contention in this appeal.
The Secretary contends that the district court erred when it determined that
Local 1005 did not violate the “adequate safeguards” provision of the LMRDA. It is
undisputed that Local 1005 did not enforce the meeting attendance requirement at any
point during the November 2008 election process. The Secretary only argues that
Local 1005 failed to provide “union members adequate notice that there was no
meeting attendance requirement to run for electoral office.” According to the
Secretary, Local 1005 violated the “adequate safeguards” provision by not informing
its members “of the change in the meeting attendance requirement.”
The Secretary’s argument fails for a number of reasons. The district court
correctly found that Local 1005’s written notices and announcements regarding the
requirements to run for office were accurate. The written notices, posted twenty-nine
days before the nominations meetings on Local 1005’s job site bulletin boards and its
website, listed the one requirement for seeking elected office—an individual must
have been “a regular member of this local for a period of not less than two (2) years.”
The written notices accurately depicted the membership requirement and did not
mention the meeting attendance requirement.
The Secretary, however, argues that these written notices were insufficient to
provide “adequate safeguards” because they “specifically referenced” Article 30 of
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Local 1005’s bylaws and “did not state that [Article 30’s meeting] attendance
requirement no longer applied.” We disagree with the Secretary. The written notices’
reference to Article 30 simply acknowledged the source of the membership
requirement. The notices did not suggest that the meeting attendance requirement
applied to the November 2008 election.
If a member found himself confused as to whether the meeting attendance
requirement still applied, the member could have asked one of Local 1005’s elected
officers or union shop stewards. It is undisputed that all members who inquired as to
whether the meeting attendance requirement applied were informed accurately that it
did not. Alternatively, the member could have attended one of the two nominations
meetings on September 23, 2008. It is undisputed that all members present at the
nominations meetings heard an accurate announcement of the sole requirement to
stand for an elected office. We agree with the district court that these actions, coupled
with the fully accurate written notices posted both on Local 1005’s job site bulletin
boards and on its website, amounted to “adequate safeguards” pursuant to the
LMRDA.
In reaching this conclusion, we find instructive the Ninth Circuit’s decision in
Provision House. In that case, a local union adopted a set of new election rules that
included “a provision that any candidate who wished the union to distribute his or her
campaign literature must file a request for distribution with the union’s
secretary-treasurer within ten days after the nomination meeting.” Provision House,
623 F.2d at 1323. The local union made this change without prior notice; in fact, the
change was made at the start of the nominations meeting:
[B]efore nominations were accepted, the union’s executive secretary read
a set of proposed rules governing the conduct of the forthcoming
elections. The meeting was noisy; it was difficult to hear the secretary’s
reading; and several union members who spoke Spanish could not
understand the reading in English. The rules were adopted, however,
without discussion, by voice vote.
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Id. The Ninth Circuit found no violation of the LMRDA: “[t]he challengers may not
have had perfect notice of the ten-day rule. Nevertheless, the trial court received
credible evidence that this ignorance was attributable to the challengers’ inattention
to the nomination meeting rather than to any failure of the union to adequately
communicate the election requirements.” Id. at 1325.
In Provision House, a union member seeking to campaign for an elected
position was subjected to a new requirement without any prior notice. Here, in
contrast, a member of Local 1005 who sought to run or nominate another member for
elected office had twenty-nine days to view the posted written notices, which
accurately described the one prerequisite to running for office—the membership
requirement. In Provision House, the Ninth Circuit determined that announcing and
adopting the new ten-day rule at the nominations meeting did not violate the adequate
safeguards provision of the LMRDA. Likewise, Local 1005 announced at the
nominations meeting that the only prerequisite for seeking elected office was the
membership requirement. If such an announcement, without any prior notice,
constituted “adequate safeguards” in Provision House, the steps taken by Local 1005
to ensure a fair election in this case also were adequate.
The cases cited by the Secretary do not conflict with our analysis. For instance,
in Marshall v. Local 468, Int’l Bhd. of Teamsters, Chauffeurs, Warehousemen &
Helpers of Am., 643 F.2d 575 (9th Cir. 1980), a local union changed its balloting
procedures without prior notice to non-incumbents, effectively limiting the time
period available to campaign from thirty days to five days. Id. at 577. The union also
changed its voting procedure from in-person voting to voting by mail, and it urged
members to vote “immediately” even though members had thirty days to return
ballots. Id. The court found a violation of the “adequate safeguards” provision,
holding that “the change from the former system to the latter without prior notification
to the challengers allowing them time to prepare and mail their campaign literature
deprived them of the ability to more fully communicate with the voters.” Id.
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(emphasis added). While the union in Local 468 provided no notice of a policy
change that served significantly to restrict campaigning by challengers, accurate
information about Local 1005’s now less-restrictive requirements to stand for elected
office was posted nearly a month before the nominations meeting and any confusion
that manifested itself was countered with accurate information.
Similarly, in Wirtz v. Local Union 262, Glass Bottle Blowers Ass’n of U.S. and
Can., 290 F.Supp. 965 (N.D. Cal. 1968), the union made absentee ballots available to
its members, but it took “[n]o steps . . . to advise members that absentee ballots would
be available,” id. at 968. As a result, only “some members” knew to ask for an
absentee ballot. Id. A union member could have read all union notices and still have
been unaware of the availability of absentee ballots. As such, the court found that the
“circumstances surrounding the distribution, handling and counting of absentee ballots
violated Section 401(c) of the Act.” Id. In contrast, a Local 1005 member seeking an
elected office or intending to nominate another member for elected office need only
have consulted the posted written notices or attended a nominations meeting for a full
and accurate list of the applicable requirements.
The cases cited by the Secretary, therefore, fail to provide sufficient support for
the Secretary’s contention that the LMRDA required Local 1005 to take more
safeguards than it did in this case to ensure the fairness of the November 2008
election.2
2
The Secretary argues that data from a survey she conducted during the course
of her investigation of the November 2008 election show that Local 1005’s failure to
take adequate safeguards “may have affected the outcome of that election.” However,
because we hold that the district court properly found no violation of the “adequate
safeguards” provision, we need not determine whether the alleged violation may have
affected the outcome of the November 2008 election. See § 482(c).
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III. CONCLUSION
Because we conclude that Local 1005’s notice of the requirements to run for
elected office in the November 2008 election did not violate the “adequate
safeguards” provision of the LMRDA, we affirm the district court’s grant of summary
judgment to Local 1005.
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