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From the March/April issue of UDR, #146
The Department
of Labor: arbitrary and capricious by nature
by Herman Benson
In the Ellis case (see below) the Department of Labor admits that the law was violated when Ellis's union election observers were not allowed to do their job. Nevertheless, it validated the election because, it insists, the violation could not have affected the election outcome. Now, it is true that to successfully challenge a union election under the LMRDA, it is not enough to prove that the law was violated; one must demonstrate that the violation, in the words of the law, "may have affected the outcome of an election." (Note: Not that it DID but that it MAY HAVE.)
But how does the DOL decide that any violation actually "may have"? This is the kind of decision that can make or break the hope for a fair election. What are its standards? What are the guidelines? It may astonish the reader to learn that there are no standards. The Department improvises; it adopts or discards as it sees fit. It makes it up as it goes along.
In the quest for illumination, I wrote to the DOL and on December 17, 1976 got this answer: "The Secretary will not institute court proceedings unless he finds probable cause to believe that the violations 'may have affected the outcome of the election.'....The Secretary's finding of probable cause is dependent not only upon the particular violation alleged, but also upon the facts and circumstances which have been developed by the investigation in each case. Since each complaint filed under section 402 is investigated and reviewed individually, the DOL has not issued any guidelines, standards, or directives." Plenty of elbow room here. Explicit guidelines would be an annoying self-limitation on the DOL; without any clear standards, it can make any decision short of demonstrated irrationality. With such a broad scope for the exercise of its judgment --- or imagination --- there is a built-in arbitrary and capricious danger whenever the DOL considers a union election complaint. And that is precisely what we have in the Ellis case.
The LMRDA sums up the conditions for a fair election as follows: "Adequate safeguards to insure a fair election shall be provided, including the right of any candidate to have an observer at the polls and at the counting of the ballots." The right to an observer is a necessary condition for a fair election. How, then, can the denial of that right be held not to affect the outcome of an election? Yet, such is the DOL's position here.
That absurd position is nothing new. Actually the DOL has upheld union elections as legal when there have been no "adequate safeguards," even where there has been outright fraud. You could sum up its position in a few words: you can run a legal union election without adequate safeguards for a fair election. How can it reach so absurd a position? Because the DOL is most comfortable with bean counting. Ballots were stolen? But how many? Intimidation and threats of violence? That's something for the Justice Department. As Paul Levy asks: How many votes is a punch in the nose worth? And so, the whole democratic quality of a union election can be destroyed; but the DOL, counting its election beans, can decide that those violations "may not have affected the outcome."
Having written all that, we must backtrack slightly, because even in dereliction, the DOL is arbitrary and capricious in its inconsistency. For some reason the right to observers is treated more lightly than the right to a secret ballot. The law requires the right to observers; but if this provision is violated, the DOL will not void an election unless it can be shown that there were additional violations, like ballot fraud. The law also requires a secret ballot. However, if the union denies the right to ballot secrecy, the DOL is likely to void the election without requiring evidence of additional violations. Why decide in one case where there were no "adequate safeguards," and not in the other, that the violation may have affected the outcome?
In its decision in Hotel Local 6, the U.S. Supreme Court noted that an early draft of the LMRDA provided for voiding an election only if demonstrated violations had actually "affected" the outcome. But this version was strengthened in the final draft, as adopted by Congress, to read "may have affected" the outcome. The Court explained that the change in wording was intended "to avoid rendering the proposed 'remedy practically worthless' by ascribing to a proved violation of para. 401 the effect of establishing a prima facie case that the violation 'may have affected' the outcome." In the Ellis case, the DOL would render "worthless" the law's right to an observer.
With this in mind, we can understand why, in the two notable victories in the battle for fair union elections, the DOL played a negligible role: the Miners' election of 1972 and the Teamsters' election of 1991. In its failure to vigorously defend the democratic quality of union elections, the Department of Labor has never been adequately challenged.
CSEA member Patrick Ellis challenges DOL
Patrick Ellis awaits a decision
by the U.S. Appeals Court, 2nd Circuit in New York. His suit against the
Department of Labor poses a fundamental question. In violation of federal
law, the union had denied his election observers the right to oversee
the casting and counting of ballots. Is such an election legal? Was the
DOL arbitrary and capricious when it dismissed his complaint and validated
the election outcome?
In February 2000, Ellis
ran as an insurgent for president of the 200,000-member Civil Service
Employees Association, at the head of a slate of four for top office.
He lost, but the official tally showed that he did well. With close to
40,000 members voting, he reports that he got 39% of the total while the
incumbent was declared elected with just 51% of the votes.
For the CSEA, it was an
unusual election. The ballot held 500 candidates for a myriad of posts
throughout New York State. The mail-ballot election was supervised by
an outside agency which tallied ballots at more than ten places. But candidates
were allowed only a single observer each; and they were corralled off
to the side where they could see nothing. In effect, they were observers
in name only -- observers not allowed to observe. Moreover, says Ellis,
at an early juncture, the electronic counting machine broke down, necessitating
a hand count which dragged out for 43 hours. In all that time, he says,
the observers were not permitted to be relieved by alternates.
Ellis challenged the election
on various grounds and in due course it reached the Department of Labor.
The DOL dismissed all his charges except one, but that was a crucial one:
it ruled that his complaint on observers was justified. However, even
though it agreed that the union had violated the law, it dismissed Ellis's
complaint and upheld the election on the ground that the violation had
not affected the election outcome. In its "Statement of Reasons"
the DOL justifies its position as follows:
"The complainant alleged that the local failed to provide adequate safeguards to insure the integrity and fairness of the election when members were denied the right to observe the tally process .... and restrictions were imposed that prevented the observers from exercising their right to challenge the eligibility of voters. The Department's investigation substantiated these allegations. The adequate safeguard provision of the Act requires that observers should not be restricted to locations that prevent them from determining that the ballot tabulation is accurate."
More of the same follows. But then comes the astounding conclusion: "However, the investigation did not disclose evidence that this violation affected the election outcome in any way. There was no evidence of any election impropriety such as ineligible persons voting, ballot fraud or tally irregularities. Consequently, there is no probable cause to believe that this violation had an effect on the outcome of the election."
Ellis, represented pro bono
by attorneys Joseph Carey and Annette Hasapidis, is suing the DOL in federal
court. Here, he faces a peculiar problem posed by a U. S. Supreme Court
decision in Bachowski: It is not enough to prove that the DOL made a mistake;
his attorneys must demonstrate that the DOL decision is not only wrong,
but that it is "arbitrary and capricious." A district judge
dismissed the complaint. Ellis appealed.
He should have a strong
case. For one thing, the LMRDA states the requirement clearly: "Adequate
safeguards to insure a fair election shall be provided, including the
right of any candidate to have an observer at the polls and at the counting
of the ballots." For another, there is no dispute about the facts.
The DOL itself has found that the law was violated when observers were
unduly restricted. But, to hold that such a violation could not have affected
the election outcome! Is such a conclusion rational? Ellis's attorneys
argue that the DOL "simply credited the Union's claims that no (other)
improprieties had occurred." Besides, how would it be possible for
observers to detect those other violations if they are not permitted to
observe?
For the DOL website,
see our links page.
For other articles on the DOL or CSEA try our site
search engine.
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