Solis v. American Federation of Government Employees ( 2011 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
HILDA L. SOLIS,
Secretary of Labor,
United States Department of Labor,
Plaintiff,
v. Civil Action No. 08-1394 (JDB)
AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES,
Defendant.
MEMORANDUM OPINION
Plaintiff Hilda L. Solis, Secretary of Labor, brings this action on behalf of complainant
Vincent Castellano against defendant American Federation of Government Employees ("AFGE")
alleging a violation of Title IV of the Labor-Management Reporting and Disclosure Act of 1959
(29 U.S.C. §§ 481-84) ("LMRDA"). Plaintiff claims that the AFGE violated the LMRDA by
preventing the complainant from running for office as AFGE National Vice President, District 2, in
May 2008. The Secretary requests that the Court declare the 2008 election void and order the
AFGE to conduct a new election under her supervision. The AFGE has moved to dismiss pursuant
to Fed. R. Civ. P. 12(b)(1) for lack of jurisdiction and 12(b)(6) for failure to state a claim upon
which relief can be granted, or in the alternative for summary judgment pursuant to Fed. R. Civ. P.
56. The Secretary has moved for summary judgment pursuant to Rule 56. For the reasons
discussed below, the Court will grant plaintiff's motion for summary judgment and deny
defendant's motion to dismiss or, in the alternative, for summary judgment.
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BACKGROUND
Plaintiff brings this action in her capacity as Secretary of Labor under section 402(b) of Title
IV of the LMRDA, 29 U.S.C. §482(b). Defendant is, and at all times relevant to this action has
been, a labor organization within the meaning of 29 U.S.C. §§402(i), 402(j), and 481(a). Compl. ¶
6; Ans. ¶ 6; Def's Mot. to Dismiss or in the Alt. for Summ. J. ("Def's Mot.") at 8. The Secretary
asserts that the AFGE violated Title IV of the LMRDA when it declared the complainant, Vincent
Castellano, ineligible to run for national office in the May 2008 election. Compl.¶ 16. According
to the AFGE National Constitution, "all employees of the United States Government and any of its
instrumentalities of whatever nature, including military personnel of the armed forces, and of the
District of Columbia, and all other persons providing their personal services indirectly to the United
States Government are eligible for membership in this Federation." AFGE National Constitution
("AFGE Const."), Article III, Sec. 1(b).
Vincent Castellano worked as a civilian for the United States Air Force from 1974 to 1994.
Pl's Opp'n to Def's Mot. to Dismiss ("Pl's Opp'n") at 2. In January 1975, he joined a local union
affiliated with AFGE, Local 1778, and became a member of both AFGE and Local 1778. Pl's Opp'n
at 2. In 1993, Mr. Castellano took a leave of absence from his civilian role in the Air Force to serve
as an AFGE National Representative, but continued to pay full active membership dues. Pl's Opp'n
at 2; Def's Mot. at 8. He permanently left, but did not retire from, his civilian Air Force job in 1994
and again continued to pay full active membership dues until 1996. Def's Mot. at 8; Pl's Opp'n at 2.
In 1995, Mr. Castellano retired from the Air Force after twenty years of service. Pl's Opp'n at 3.
Mr. Castellano then requested in 1996 that the union change his status from that of full
active member to a retiree member and he subsequently began paying the reduced dues rate
charged to retirees. Def's Mot. at 8; Pl's Opp'n at 3. Mr. Castellano was not eligible for retiree
status at this or any other time because he had not retired from a federal civilian job. Id. He
alleges that Local 1778 president, Michael Horahan, approached him in 1996 and recommended
that he change his status to retiree and pay the reduced dues. Pl's Mot. for Summ. J. ("Pl's Mot.")
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at 6. Thus, Mr. Castellano paid incorrect dues from 1996 to 2004. Def's Mot. at 8; Pl's Opp'n. at 3.
Subsequently, in 2004 he requested that Local 1778 change his status from retiree to active and he
began paying full dues at that time. Id.In March of 2005, Mr. Castellano paid $637.92 to AFGE Local 1778 as a retroactive
payment for the period “June 02 thru 03.” See Def's Mot. at 9; Pl's Mot. at 7. In turn, AFGE
accepted and deposited $261.00 from AFGE Local 1778 in “per capita taxes” on behalf of Mr.
Castellano. Id. Then on March 24, 2005, Mr. Castellano announced his candidacy for the office of
National Vice President, District 2. Def's Mot. at 9. He was advised by AFGE Deputy Counsel
Charles A. Hobbie on March 29, 2005 that he was not eligible for national candidacy because he
had paid retiree dues and retiree per capita tax when he was not eligible for such status. See Def's
Mot. at 7; Pl's Mot. at 7. Mr. Castellano immediately informed Mr. Hobbie that he was
withdrawing his candidacy and Mr. Hobbie responded with a letter stating that Mr. Castellano's
"failure to maintain correct dues status as an AFGE member render[ed] [him] permanently
ineligible to run for national office." Def's Mot. at 10. Mr. Castellano then appealed the ruling of
ineligibility to AFGE's National President, who denied the appeal.
The Department of Labor also denied Mr. Castellano's appeal on October 24, 2005 after
finding that AFGE's three year good standing eligibility requirement was reasonable. Id. A letter
sent to Mr. Castellano on November 30, 2005 clarified that his appeal was not accepted by the
Secretary of Labor because "rules that restrict members from being candidates based on non-
payment of dues, meeting attendance or apprentice status may be reasonable if the time period of
the restriction does not prevent the member from being a candidate for an inordinate period of
time." Pl's Ex. 38 (U.S. Department of Labor Letter from Acting Chief, Division of Enforcement
Patricia Fox to Vincent Castellano, November 30, 2005). The letter specifically refrained from
commenting conclusively on Mr. Castellano's ability to run for office in future elections. Id.On March 19, 2008, Mr. Castellano again sought the nomination for the office of National
Vice President, District 2. Id. He received letters from AFGE’s National Secretary-Treasurer and
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General Counsel throughout the month of March informing him that he was ineligible to run for
office on the ground that his payment of retiree dues caused a loss in membership status that could
only be repaired by Mr. Castellano regaining federal employment for three consecutive years and
paying full membership dues for that period. Id. On April 2, 2008, Mr. Castellano appealed to the
AFGE National President, who responded in a letter dated April 9, 2008 that Mr. Castellano was
not eligible to run for national office. Def's Mot. at 11. Mr. Castellano then filed a timely
complaint with the Secretary of Labor and ultimately the complaint at bar. Subsequently, AFGE
changed its membership records to reflect that Mr. Castellano was no longer a member,
retroactively dating back to 1996. Def's Mot. at 11; Pl's Mot. at 8. In the election held on May 17,
2008, incumbent Derrick F. Thomas was re-elected National Vice President, District 2. Def's Mot.
at 11; Pl's Opp'n at 4; Pl's Mot. at 23.
STANDARD OF REVIEW
I. Motion to Dismiss
"[I]n passing on a motion to dismiss, whether on the ground of lack of jurisdiction over the
subject matter or for failure to state a cause of action, the allegations of the complaint should be
construed favorably to the pleader." Scheuer v. Rhodes, 416 U.S. 232, 236 (1974); see Leatherman
v. Tarrant Cty. Narcotics and Coordination Unit, 507 U.S. 163, 164 (1993); Phillips v. Bureau of
Prisons, 591 F.2d 966, 968 (D.C. Cir. 1979). Therefore, the factual allegations must be presumed
true, and plaintiff must be given every favorable inference that may be drawn from the allegations
of fact. Scheuer, 416 U.S. at 236; Sparrow v. United Air Lines, Inc., 216 F.3d 1111, 1113 (D.C.
Cir. 2000). However, the Court need not accept as true "a legal conclusion couched as a factual
allegation," nor inferences that are unsupported by the facts set out in the complaint. Trudeau v.
Federal Trade Comm'n, 456 F.3d 178, 193 (D.C. Cir. 2006) (quoting Papasan v. Allain, 478 U.S.
265, 286 (1986)).
Under Rule 12(b)(1), the party seeking to invoke the jurisdiction of a federal court –
plaintiff here – bears the burden of establishing that the court has jurisdiction. See US Ecology,
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Inc. v. U.S. Dep't of Interior, 231 F.3d 20, 24 (D.C. Cir. 2000); see also Grand Lodge of Fraternal
Order of Police v. Ashcroft, 185 F. Supp. 2d 9, 13 (D.D.C. 2001) (a court has an "affirmative
obligation to ensure that it is acting within the scope of its jurisdictional authority."); Pitney
Bowes, Inc. v. United States Postal Serv., 27 F. Supp. 2d 15, 19 (D.D.C. 1998). "'[P]laintiff's
factual allegations in the complaint . . . will bear closer scrutiny in resolving a 12(b)(1) motion'
than in resolving a 12(b)(6) motion for failure to state a claim." Grand Lodge, 185 F. Supp. 2d at
13-14 (quoting 5A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure §
1350 (2d ed. 1987)). Additionally, a court may consider material other than the allegations of the
complaint in determining whether it has jurisdiction to hear the case, as long as it still accepts the
factual allegations in the complaint as true. See Jerome Stevens Pharm., Inc. v. FDA, 402 F.3d
1249, 1253-54 (D.C. Cir. 2005); EEOC v. St. Francis Xavier Parochial Sch., 117 F.3d 621, 624-25
n.3 (D.C. Cir. 1997); Herbert v. Nat'l Acad. of Scis., 974 F.2d 192, 197 (D.C. Cir.1992).
In reviewing a motion to dismiss pursuant to Rule 12(b)(6), the Court is mindful that all
that the Federal Rules of Civil Procedure require of a complaint is that it contain "'a short and plain
statement of the claim showing that the pleader is entitled to relief,' in order to 'give the defendant
fair notice of what the . . . claim is and the grounds upon which it rests.'" Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)); accord
Erickson v. Pardus, 551 U.S. 89, 93 (2007) (per curiam). Although "detailed factual allegations"
are not necessary to withstand a Rule 12(b)(6) motion to dismiss, to provide the "grounds" of
"entitle[ment] to relief," a plaintiff must furnish "more than labels and conclusions" or "a formulaic
recitation of the elements of a cause of action." Twombly, 550 U.S. at 555-56; see also Papasan v.
Allain, 478 U.S. 265, 286 (1986). "To survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'"
Ashcroft v. Iqbal, 556 U.S. ___, 129 S. Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S. at
570); Atherton v. District of Columbia Office of the Mayor, 567 F.3d 672, 681 (D.C. Cir. 2009).
A complaint is plausible on its face "when the plaintiff pleads factual content that allows the court
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to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal,
129 S. Ct. at 1949. This amounts to a "two-pronged approach" under which a court first identifies
the factual allegations entitled to an assumption of truth and then determines "whether they
plausibly give rise to an entitlement to relief." Id. at 1950-51.
II. Summary Judgment
Summary judgment is appropriate when the pleadings and the evidence demonstrate that
"there is no genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law." Fed. R. Civ. P. 56(a). The party seeking summary judgment bears the initial
responsibility of demonstrating the absence of a genuine dispute of material fact. See Celotex
Corp. v. Catrett, 477 U.S. 317, 323 (1986). The moving party may successfully support its motion
by identifying those portions of "the record, including depositions, documents, electronically stored
information, affidavits or declarations, stipulations (including those made for purposes of the
motion only), admissions, interrogatory answers, or other materials," which it believes demonstrate
the absence of a genuine issue of material fact. Fed. R. Civ. P. 56(c)(1)(A); see Celotex, 477 U.S.
at 323.
In determining whether there exists a genuine dispute of material fact sufficient to
preclude summary judgment, the court must regard the non-movant's statements as true and accept
all evidence and make all inferences in the non-movant's favor. See Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 255 (1986). A non-moving party, however, must establish more than the "mere
existence of a scintilla of evidence" in support of its position. Id. at 252. By pointing to the
absence of evidence proffered by the non-moving party, a moving party may succeed on summary
judgment. Celotex, 477 U.S. at 322. "If the evidence is merely colorable, or is not significantly
probative, summary judgment may be granted." Anderson, 477 U.S. at 249-50 (citations omitted).
Summary judgment is appropriate if the non-movant fails to offer "evidence on which the jury
could reasonably find for the [non-movant]." Id. at 252.
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DISCUSSION
The Secretary brings this action pursuant to Title IV of the LMRDA, 29 U.S.C. § 401.
After conducting an initial investigation of Mr. Castellano's complaint, the Secretary concluded
that the AFGE violated section 401(e) of the LMRDA, 29 U.S.C. §481(e), during the months prior
to the May 2008 election for the office of National Vice President, District 2. Pl's Mot. at 1. The
crux of this dispute is whether Mr. Castellano is a member of AFGE according to the language of
the LMRDA and AFGE's constitution.
The LMRDA aims to protect union members' rights by seeking a balance between the
public interest in ensuring free and democratic union elections and the long standing policy against
"unnecessary government intrusion into internal union affairs." Wirtz v. Hotel, Motel, & Club
Emps. Union, Local 6, 391 U.S. 492, 496 (1968) (citing Wirtz v. Local 153, Glass Bottle Blowers
Ass'n, 389 U.S. 463, 470-471 (1968)). The Act seeks to accomplish the Congressional goal of
protecting democratic elections and "prevent, discourage and make unprofitable improper conduct
by union officials; . . . curb abuse by entrenched union leadership; and . . . encourage challenges to
entrenched union leadership." Dole v. Local Union 226, Hotel & Rest. Emps., 718 F. Supp. 1479,
1485 (D. Nev. 1989) (referencing Marshall v. Local 1010, United Steelworkers of Am., 664 F. 2d
144, 150 (7th Cir. 1981)). The LMRDA guarantees members "the right to vote in union elections
and referenda (§ 411(a)(1)), to assemble and speak freely (§ 411(a)(2)), to bring suit against the
union (§411(a)(4)), to be afforded significant procedural due process rights prior to disciplinary
action (§411(a)(5)), and to run for an elective position (§481)." Basilicato v. Int'l Alliance of
Theatrical Stage Emps. & Moving Picture Machine Operators of the U.S. & Canada, 479 F. Supp.
1232, 1235 (D. Conn. 1979). Although "Congress emphatically gave unions the primary
responsibility for enforcing compliance with the Act, Congress also settled enforcement authority
with the Secretary of Labor to insure that serious violations would not go unremedied and the
public interest go unvindicated." Glass Bottle Blowers Ass'n, 389 U.S. at 498-99. Ultimately, by
"granting unions the power to negotiate members' wages, hours, and conditions of employment
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[the government] should insure that the officials of the unions are responsive to the desires of those
members they represent. Free and democratic elections are the means by which this end is served."
Donovan v. Local Union 70, Int'l Bhd. of Teamsters, 661 F.2d 1199, 1202 (9th Cir. 1981).
The LMRDA clearly establishes that federal district courts have jurisdiction for LMRDA
violations. The Act's election enforcement procedure provides that:
(a) Filing of complaint; presumption of validity of challenged election.
A member of a labor organization–
(1) who has exhausted the remedies available under the constitution and bylaws of
such organization and of any parent body, or
(2) who has invoked such available remedies without obtaining a final decision
within three calendar months after their invocation,
may file a complaint with the Secretary within one calendar month thereafter
alleging the violation of any provision of section 481 of this title (including
violation of the constitution and bylaws of the labor organization pertaining to the
election and removal of officers). The challenged election shall be presumed
valid pending a final decision thereon (as hereinafter provided) and in the interim
the affairs of the organization shall be conducted by the officers elected or in such
other manner as its constitution and bylaws may provide.
(b) Investigation of complaint; commencement of civil action by Secretary,
jurisdiction; preservation of assets
The Secretary shall investigate such complaint and, if he finds probable cause to
believe that a violation of this subchapter has occurred and has not been remedied,
he shall, within sixty days after the filing of such complaint, bring a civil action
against the labor organization as an entity in the district court of the United States
in which such labor organization maintains its principal office to set aside the
invalid election, if any, and to direct the conduct of an election or hearing and vote
upon the removal of officers under the supervision of the Secretary and in
accordance with the provisions of this subchapter and such rules and regulations
as the Secretary may prescribe.
29 U.S.C. § 482(a)-(b).
The AFGE argues that the Secretary's complaint should be dismissed for lack of subject
matter jurisdiction or, in the alternative, for failure to state a claim upon which relief can be
granted. The union asserts that Mr. Castellano’s failure to pay the correct dues during the period of
1996-2004 and his loss of occupational status as a government employee qualifies as a "fatal"
break in union membership. Def's Reply to Pl's Opp'n ("Def's Reply") at 2. The AFGE argues that
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the Court lacks jurisdiction because "the statutory grant of jurisdiction in 29 U.S.C. § 482 so
clearly depends upon the Plaintiff’s having before it a complaint from a member of Defendant as a
prerequisite." Def's Mot. at 18 (emphasis in original).
The AFGE is correct in noting the jurisdictional element required by the LMRDA;
however, it is irrelevant that the AFGE itself does not recognize the complainant as a member.
The Secretary can properly proceed by showing that the complainant is a "member in substance,"
as it is "well settled that compliance with all the requirements for membership in a union, despite
the fact that the union officials have not performed the ministerial acts for formal admission,
bestows upon that individual all of the LMRDA's protections.” Ricks v. Simons, 1990 U.S. Dist.
LEXIS 9535, *6 (D.C. July 30, 1990) (referencing 29 U.S.C. § 402(o)); see also Papianni v. Int'l
Assoc. of Bridge, etc. Local 11, 622 F. Supp. 1559, 1571 (D.N.J. 1985). Thus, Mr. Castellano
satisfies the jurisdictional requirement if it can be shown that he meets the membership
qualifications established in the LMRDA and AFGE's constitution and bylaws, whether or not the
union recognizes him as a member. And it is clear that Mr. Castellano was eligible for
membership in 1975 when he joined the AFGE and that he remained a member in good standing
until 1996 when he changed his membership status to retiree. Hence, the issue is whether Mr.
Castellano permanently lost his membership status in 1996, as the AFGE claims, by failing to
properly pay dues. The court concludes that he did not lose his membership status in 1996 and
therefore the AFGE violated Title IV of the LMRDA in refusing to recognize him as a valid
candidate for the May 2008 election.
I. Defining Membership
The LMRDA defines a member or a member in good standing as "any person who has
fulfilled the requirements for membership in such organization, and who neither has voluntarily
withdrawn from membership nor has been expelled or suspended from membership after
appropriate proceedings consistent with lawful provisions of the constitution and bylaws of such
organization." 29 U.S.C. § 402(o). Although the LMRDA does not expressly establish
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membership requirements for unions, "any provision of the constitution or bylaws of any
organization which is inconsistent with LMRDA is 'of no force or effect.'" Basilicato, 479 F. Supp.
at 1235. To determine membership requirements, courts look to the union's constitution and
bylaws. See Ricks, 1990 U.S. Dist. LEXIS at *5-6; see also Hughes v. Int'l Assoc. of Bridge,
Structural & Ornamental Ironworkers, 287 F.2d 810, 815 (3d Cir. 1961).
The AFGE National Constitution states that "all employees of the United States
Government and any of its instrumentalities of whatever nature, including military personnel of the
armed forces, and of the District of Columbia, and all other persons providing personal services
indirectly to the United States Government are eligible for membership in this Federation." AFGE
Const., Art. III, Sec. 1(b). It is clear that Mr. Castellano was eligible for AFGE Membership in
1974 when he joined the U.S. Air Force as a civilian employee, and thus he was properly admitted
as a member of both AFGE and AFGE Local 1778 in 1975. See Pl's Opp'n at 2. Moreover, the
AFGE Constitution provides that "any person who at the time of being separated without prejudice
from employment covered by subsection (b) was a member in good standing of any local is eligible
to continue membership in this Federation." AFGE Const., Art. III, Sec. 1(c). Hence, when Mr.
Castellano took a leave of absence from the Air Force in 1993 and then permanently left his
civilian job before reaching retirement in 1994, he was eligible to continue membership in AFGE.
He was a full member in good standing after he left his civil service position during the period
from 1994 to 1996 so long as he paid the appropriate membership dues. Def's Mot. at 8; Pl's Opp'n
at 2.
To be a member in good standing, an individual must be current in monthly dues
payments. See AFGE Const., Art. VII, Sec. 1(a). The AFGE has adopted thorough procedures
governing the actions the union must take in order to suspend, expel, or otherwise discipline a
member to ensure that member due process rights are not violated. See AFGE Const., Art. XXIII.
However, most likely because dues infractions occur more frequently than other disciplinary
problems, AFGE handles improper dues payments in a different manner. A member "may be
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dropped if dues are not paid by Tuesday of the last full workweek of the month, provided,
however, that a reasonable amount of time after notice of the delinquency is given." AFGE Const.,
App. B, Art. IV, Sec. 2(b). This requirement puts AFGE in line with the standards found in the
LMRDA. See 29 U.S.C. § 411(a)(5) ("No member of any labor organization may be fined,
suspended, expelled, or otherwise disciplined except for nonpayment of dues by such organization
. . . unless such member has been (A) served with written specific charges; (B) given a reasonable
time to prepare his defense; (C) afforded a full and fair hearing."). Hence, although the union is
not required to provide a delinquent dues member with a formal hearing, it must still provide the
member with notice and the opportunity to correct any delinquency before making changes to the
individual's membership status.
Both parties agree that Mr. Castellano paid the incorrect dues between 1996 and 2004, but
neither side provides an explanation for why he initially started paying the reduced rate or why it
continued for such a prolonged period of time. The AFGE merely claims that Mr. Castellano
"should have known" that he was not eligible for retiree status. See Def's Mot. at 32; Def's Reply
at 10. The Court finds no merit to this argument as there is no evidence that his requested change
was made in a knowingly deceitful or even grossly negligent manner.
Although the AFGE acknowledges that, according to the AFGE Constitution, notice must
be given before a member is dropped, it dismisses the requirement as inapplicable merely because
the AFGE was unaware of any problem with Mr. Castellano's payments until he announced his
candidacy in 2005. See Def's Mot. at 5. It is true that the AFGE correctly found that Mr.
Castellano was ineligible to run for office in 2005 because he did not meet the two-prong
requirement for national candidacy. But it took no steps to remove Mr. Castellano from its
membership roles or database at that time. And while the AFGE argues that Mr. Castellano was
permanently ineligible to run for national office, the union's actions indicate otherwise.
Mr. Castellano continued to pay full membership dues from 2005 through at least April
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2008 and was in fact issued a membership card valid from 2006 through 2009.1 Pl's Mot. at 8; Pl's
Opp'n at 19. Assuming the AFGE did not know about the discrepancy in payments until the 2005
election, the Court is troubled by the union's assertion that "the delay of almost three years in
correcting the computerized database to remove [Mr.] Castellano from membership" was merely a
mistake. Def's Opp'n at 16-17. In reality, Mr. Castellano paid dues to Local 1778 for four years
prior to the May 2008 election and continued to enjoy the benefits and privileges of membership in
AFGE. To be sure, an international union is not bound by the actions of its affiliates. See Carbon
Fuel v. United Mine Workers of America, 444 U.S. 212, 217-18 (1979); Rodonich v. House
Wreckers Union Local 95, 817 F.2d 967, 972-73 (2d Cir. 1987). But here it is the AFGE that
failed to follow its own constitutional mandates.
The AFGE argues that Mr. Castellano is not eligible to continue membership in AFGE
because "he qualified for AFGE membership retention only so long as he maintained his
membership status without a break . . . from the date of his voluntary separation from federal civil
service." Def's Opp'n at 8 (emphasis in original). Although unions are permitted to have
reasonable continuity of good standing membership requirements, such qualifications are
reasonable only if "(1) [the union] 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). Mr. Castellano attempted to make up missed payments in
March 2005 by submitting a check covering the June 2002 to June 2003 payment period, but the
AFGE dismisses this as irrelevant because the "payment of back dues may correct a member's
status and bring the member into 'good standing' for meeting the candidacy qualification only when
the circumstances of the dues underpayments involve a mutual mistake on the part of the member,
1
It is unclear when exactly Mr. Castellano stopped making dues payments. The AFGE notes in its motion that Mr.
Castellano submitted dues payments to Local 1778 in April and May of 2008 and asserts that it applied said amounts
to offset existing Local 1778 debits and did not treat them as membership payments. Def's Mot. at 11. The Secretary
asserts that Mr. Castellano had been paying full dues since 2004 and that he was current in those payments as of
March 9, 2010. Pl's Mot. at 8. Based on the filings of both parties, the Court finds that Mr. Castellano continued to
pay his dues up to the filing of his complaint with the Department of Labor in April 2008.
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the local, and AFGE." Def's Opp'n at 16 (emphasis in original).2
The AFGE raises minor points throughout its briefs in this case that, while based on
nuggets of truth, are ultimately irrelevant in deciding the paramount issue here. The AFGE
strenuously argues that Mr. Castellano immediately lost his membership status in 2005 as soon as
AFGE learned of the improper dues payments, but this Court does not find any basis in the AFGE
Constitution or the language of the LMRDA to support such a conclusion. The Court recognizes
that, under the AFGE Constitution, the union could have taken appropriate steps to remove Mr.
Castellano from membership for failure to pay proper dues. Ultimately, however, no such action
was taken. It is simply counterintuitive that a member could pay full dues for a period of four
years without being informed by the union that his membership had been retroactively revoked for
an infraction that he was never given the opportunity to correct.
The Court recognizes that the facts of this case are unique and thus understands why both
parties raise a myriad of issues in their briefs. The fact that Mr. Castellano paid improper dues
over a lengthy period of time is certainly troubling, but without even an implication of impropriety,
the Court does not find that this fact alone, without any further action by the union, was sufficient
to alter Mr. Castellano's membership status. It is true that the AFGE has very clear rules relating to
retirees and those wishing to retain membership status. The AFGE argues that after Mr. Castellano
was found ineligible to run for office in 2005, "joining or rejoining AFGE [was] only possible for
individuals who are current federal employees and thereby meet the occupational standard of
governmental employment." Def's Mot. at 36. The Court agrees with that theory, but finds it is
inappropriately applied to Mr. Castellano's situation. If a member were suspended or expelled
from the union and he or she was no longer a current federal employee, that individual would not
2
The AFGE repeatedly raised the issue of mutual mistake throughout the many briefs filed in this case. It is quick to
dismiss the idea of a mutual mistake with the circular logic that the AFGE could not have been mistaken in accepting
the reduced rate dues from Mr. Castellano because it was not aware that there was a problem with the charged rate.
The mutual mistake doctrine may not apply to the facts here, but in any event the Court does not need to resolve the
issue to decide this case.
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be eligible for continuing membership status and thus would need to satisfy the basis for
membership found in the AFGE Constitution, namely the occupational standard. The AFGE cites
several internal cases in which it has upheld this principal. See Def's Mot. at 34-36; Def's Opp'n at
7. But the Court does not find these cases to be controlling in this case.
Here, AFGE took no action to alter Mr. Castellano's membership status until he filed his
complaint with the Secretary of Labor. It is true that neither the LMRDA nor AFGE's Constitution
or bylaws require the union to go through a formal disciplinary process when dealing with
members who are delinquent in dues payments. See 29 U.S.C. § 411(a)(5). However, members
may only be dropped if dues are not paid "provided . . . that a reasonable amount of time after
notice of the delinquency is given." AFGE Const., App. B, Art. IV, Sec. 2(b). The AFGE's
argument that it was unable to provide notice at the time of the failure to pay sufficient dues
because the union itself was unaware of the issue is both circular and illogical.
It was not until April 11, 2008, the same day Mr. Castellano filed his complaint, that the
AFGE "corrected" its membership records to drop Mr. Castellano, effective retroactively to 1996.
Def's Mot. at 11. But in altering its membership records, it did not adjust the date of his
membership drop to 2005, when AFGE first gained knowledge of the infraction, but instead to nine
years earlier (1996) when Mr. Castellano began remitting the wrong dues payments. See Def's
Mot. at 11; Pl's Mot. at 8. The union highlights the fact that after June 11, 2008, it no longer
accepted funds paid by Local 1778 on behalf of Mr. Castellano, but instead credited the amount to
Local 1778's account balance as an offset against other debits. See Def's Mot. at 11-12. However,
the AFGE clearly accepted full payments from Local 1778 on behalf of Mr. Castellano for the four
years prior to June 2008.
Ultimately, the AFGE wishes to have it both ways. It acknowledges that, according to its
constitution and bylaws, it must provide notice and the opportunity to correct for delinquent dues
members, and also argues that it was unable to provide the required notice because it was not
aware of a problem until 2005. But at the same time, the union argues that it may retroactively
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remove Mr. Castellano from membership dating back to 1996, before it even had any knowledge of
the dues infraction. Because the AFGE failed to provide notice and an opportunity to correct, in
addition to taking no action – formal or informal – to remove Mr. Castellano from membership
until 2008, the union's motion to dismiss for lack of subject matter jurisdiction must be denied.
Mr. Castellano met the requirements for membership and was eligible to retain membership status
after he left the civil service in 1994. The AFGE did not invoke the proper steps and authority to
remove Mr. Castellano from membership, and hence the Court finds that Mr. Castellano was a
"member in substance" and that jurisdiction before this Court is proper.
II. Candidacy Eligibility
Although Mr. Castellano is a member of AFGE for the purposes of the LMRDA, it must
also be shown that he satisfied the requirements for candidacy at the time he announced his intent
to run in the May 2008 election. The AFGE Constitution requires that eligible candidates must
have worked as "a governmental employee for three consecutive years, and also . . . [have] . . .
been a member in good standing of the Federation for the three consecutive years immediately
prior to the date of nomination for the office being sought." AFGE Const., Art. VII, Sec. 1(a). In
1996, Mr. Castellano began paying reduced retiree dues and thus his delinquent dues status from
1996-2004 left him ineligible for candidacy in the 2005 election. See Def's Mot. at 8; Pl's Opp'n at
3. The Secretary so concluded in November 2005 and that determination was not challenged.
At the time of the 2005 election, although Mr. Castellano satisfied the occupational
requirement, he did not meet the second requirement for candidacy because he had been paying
incorrect dues for two of the three years immediately prior to the election. See Def's Mot. at 7; Pl's
Mot. at 7. In a letter to Mr. Castellano explaining why his 2005 appeal had been denied, the
Department of Labor commented, in regards to future elections, that "if [he was] current in [his]
dues at the beginning of a three year period and [paid] full dues to AFGE for the three years
immediately preceding the date of nominations, [he] would meet the . . . eligibility requirement."
Pl's Ex. 38 (U.S. Department of Labor Letter from Acting Chief, Division of Enforcement Patricia
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Fox to Vincent Castellano, November 30, 2005). The Court agrees with that interpretation of
AFGE's candidacy requirements.
Mr. Castellano clearly meets the first requirement under the AFGE Constitution in that he
was employed as a federal civilian employee for the United States Air Force for a period of three
consecutive years. The AFGE Constitution does not require that these three consecutive years be
immediately prior to the time of nomination or election. See AFGE Const., Art. VII, Sec. 1(a). In
addition, Mr. Castellano was a timely and full dues paying member of the union for more than
three years prior to the May 2008 election as required by the AFGE Constitution. See Def's Mot. at
8; Pl's Opp'n at 3. The AFGE argues that Mr. Castellano suffered a permanent loss of membership
in 1996 when he improperly switched to retiree status, but the Court finds that there is no basis for
this assertion.
The Court finds that the plain meaning of the AFGE Constitution dictates that in order to
be eligible for national office one must be in good standing for the three years immediately
preceding the election, and one is considered to be in good standing if one is current in dues
payments. See AFGE Const., Art. VII, Sec. 1(a). That was true of Mr. Castellano in May 2008.
Thus, because he was a member of the AFGE and appropriately satisfied the national candidacy
requirements, the Court finds that the AFGE violated section 401 of the LMRDA by refusing to
allow Mr. Castellano to run for national office.
III. The Violation of Section 401 May Have Affected the Outcome of the Election
Section 402 of the LMRDA requires a district court to declare a contested election void
and order a new election under government supervision if the Secretary establishes that a violation
of section 401 "may have affected the outcome of the election." 29 U.S.C. § 482(c). The Secretary
can establish a prima facie case "by presenting facts that support a finding of any of the alleged
LMRDA violations." Local Union 226, Hotel & Restaurant Emps., 718 F. Supp. at 1481. The
Secretary can meet its burden by showing a violation of LMRDA because "the prima facie case
presumes that there is a 'meaningful relation' between the violations and the election results." Id. at
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1484 (referencing Hotel Emps., Local 6, 391 U.S. at 507). However, the union may rebut the
presumption by introducing tangible evidence "which supports a finding that the violation did not
affect the result." Hotel Emps., Local 6, 391 U.S. at 507.
Here, Mr. Castellano was prevented from running for national office in violation of the
LMRDA. By showing a violation of the LMRDA, the Secretary has established a prima facie case
and thus the Court must look to the AFGE to rebut this presumption. In a case where members are
prevented from running for office, "whether the outcome would have been different depends upon
whether the suppressed candidates were potent vote-getters, whether more union members would
have voted had candidates not been suppressed, and so forth . . . any proof relating to effect on
outcome must necessarily be speculative." Id. (internal citation omitted). Here, in support of its
claim that the election was not affected by the violation, the union argues that "the late per capita
tax payment from Local 1778 to AFGE in June 2008, undisputedly one month after the election
that is the subject of the instant complaint, would have disqualified [Mr. Castellano] from
candidacy at that time anyway." Def's Opp'n at 17. The Court struggles to reconcile this statement
with the AFGE's motion to dismiss, where it claims it stopped accepting Local 1778's per capita
payments on behalf of Mr. Castellano and instead applied the value to the other Local 1778 debits.
See Def's Mot. at 11-12. Moreover, this argument does not explain how a late payment that came
in June 2008, after the filing of a complaint with the Department of Labor and a month after the
contested election, demonstrates that the union's LMRDA violation did not affect the outcome of
the election. Because the AFGE has not brought forth evidence that shows the violation did not
affect the election result, the Court finds that the violation may have affected the election under
section 402 of the LMRDA. See Local Union 70, Int'l Bhd. of Teamsters, 661 F.2d at 1202.
Upon a finding based on the preponderance of the evidence that a violation of section 401
of the LMRDA may have affected the outcome of an election, "the court shall declare the election,
if any, to be void and direct the conduct of a new election under supervision of the Secretary." 29
U.S.C. § 482(c). Although a district court does have equitable discretion to refuse to order a new
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election under narrow circumstances, that discretion is normally limited to situations where
changes taken by the union in an untainted intervening election adequately resolve the LMRDA
violations. See Glass Bottle Blowers Ass'n, 389 U.S. at 468; McLaughlin v. Lodge 647, Int'l Bhd.
of Boilermakers, 876 F.2d 648, 654 (8th Cir. 1989). According to the AFGE National
Constitution, the terms of national AFGE officers "shall expire on the election and installation of
their successors." AFGE Const., Art. VII, Sec. 2. National Vice Presidents "are to be nominated
and elected at a district caucus to be held within each respective district subsequent to April 30 and
prior to June 1 of every third year." AFGE Const., Article VIII, Sec. 2(a). Thus, several months
remain in the term of the National Vice President, District 2. The Court does not find this case to
fall within the narrow exception and thus, pursuant to 29 U.S.C. § 482(c), will order the May 2008
election for National Vice President, District 2, void and that a new election be conducted under
the supervision of the Secretary of Labor.3
CONCLUSION
Accordingly, the Court will grant the Secretary's motion for summary judgment, and will
deny AFGE's motion to dismiss or, in the alternative, for summary judgment. The Court will
declare the May 2008 election for the AFGE National Vice President, District 2, void and will
direct the AFGE to conduct a new election under the supervision of the Secretary of Labor. A
separate order has been issued on this date.
/s/
JOHN D. BATES
United States District Judge
Dated: February 09, 2011
3
The court recognizes that an election may already be scheduled for May 2011, and leaves to the parties initially any
consideration of the impact of an upcoming election on the appropriate relief here.
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