Perez v. Local 872, Laborers International Union of North America

Cross MOTION for Summary Judgment

D. Neb.March 10, 2017

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 DEFENDANT’S NOTICE OF MOTION AND CROSS-MOTION FOR SUMMARY JUDGMENT; MEMORANDUM OF POINTS AND AUTHORITIES Case No. 2:15-cv-01979 GMN-CWH KRISTINA L. HILLMAN, Bar No. 7752 KERIANNE R. STEELE, Bar No. 10995 LAW OFFICES OF KRISTINA L. HILLMAN Affiliated with Weinberg, Roger & Rosenfeld A Professional Corporation 1594 Mono Avenue P.O. Box 1987 Minden, Nevada 89423 Telephone (775) 770-4832 Fax (775) 782-6932 E-Mail: khillman@unioncounsel.net ksteele@unioncounsel.net Attorneys for Defendant LOCAL 872, LABORERS INTERNATIONAL UNION OF NORTH AMERICA UNITED STATES DISTRICT COURT DISTRICT OF NEVADA EDWARD C. HUGLER, Acting Secretary of Labor, United States Department of Labor, Plaintiff, v. LOCAL 872, LABORERS INTERNATIONAL UNION OF NORTH AMERICA, Defendant. Case No. 2:15-cv-01979 GMN-CWH DEFENDANT’S NOTICE OF MOTION AND CROSS-MOTION FOR SUMMARY JUDGMENT; MEMORANDUM OF POINTS AND AUTHORITIES Judge: Gloria M. Navarro Case 2:15-cv-01979-GMN-CWH Document 40 Filed 03/10/17 Page 1 of 18 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF CONTENTS Page 2 DEFENDANT’S NOTICE OF MOTION AND CROSS-MOTION FOR SUMMARY JUDGMENT; MEMORANDUM OF POINTS AND AUTHORITIES Case No. 2:15-cv-01979 GMN-CWH I. INTRODUCTION ...............................................................................................................6 II. FACTS .................................................................................................................................6 A. THE ELECTION PROCEDURES AND REQUIREMENTS.................................7 B. NOTICE OF THE APRIL 2015 ELECTION..........................................................8 C. THE NOMINATION MEETING AND DISQUALIFICATION OF TRUJILLO.........................................................................................................9 III. ARGUMENT.....................................................................................................................11 A. THE FUNCTION OF THE LMRDA ....................................................................11 B. THE DOL CANNOT MEET ITS BURDEN TO SHOW THAT A VIOLATION OF THE LMRDA OCCURRED.................................................12 1. The Permanent Resident/Lawfully Employable Requirement is Reasonable........................................................................12 2. Members had Advance Notice that the Permanent Resident/Lawfully Employable Requirement was to be Satisfied at the Nominations Meeting........................................................13 3. The Permanent Resident/Lawfully Employable Requirement was Uniformly Applied........................................................15 IV. CONCLUSION..................................................................................................................17 Case 2:15-cv-01979-GMN-CWH Document 40 Filed 03/10/17 Page 2 of 18 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF AUTHORITIES Page 3 DEFENDANT’S NOTICE OF MOTION AND CROSS-MOTION FOR SUMMARY JUDGMENT; MEMORANDUM OF POINTS AND AUTHORITIES Case No. 2:15-cv-01979 GMN-CWH Federal Cases Brock v. Local 1130, Laborers’ Int'l Union of N. Am., AFL-CIO, 736 F.Supp. 1566 (E.D. Cal. 1987).............................................................................................15 Brock v. Writers Guild of America, West, Inc., 762 F.2d 1349 (9th Cir.1985) .....................................................................................................12 Busch v. Givens, 627 F.2d 978 (9th Cir.1980) .......................................................................................................15 Chamber of Commerce of the United States v. Whiting, 563 U.S. 582 (2011)....................................................................................................................16 Chao v. Bremerton Metal Trades Council, 294 F.3d 1114 (9th Cir.2002) .....................................................................................................13 Chao v. Local 442, United Assn of Journeymen & Apprentices of the Plumbing & Pipefitting Indus., 203 F.Supp.2d 1170 (E.D.Cal. 2002)....................................................................................11, 15 Local 3489, United Steelworkers v. Usery, 429 U.S. 305 (1977)....................................................................................................................12 Local No. 48, United Bhd. of Carpenters and Joiners v. United Bhd. of Carpenters and Joiners, 920 F.2d 1047 (1st Cir. 1990).....................................................................................................15 Reich v. Local 30, Int’l Bhd. of Teamsters, 6 F.3d 978 (3d Cir.1993).............................................................................................................12 Reich v. Local 89, Laborers Int’l Union of N. America, 36 F.3d 1470 (9th Cir.1994) .................................................................................................11, 12 Stelling v. Electrical Workers, 587 F.2d 1379 (9th Cir.1978) .....................................................................................................15 United Steelworkers of America v. Sadlowski, 457 U.S. 102 (1982)....................................................................................................................11 Wirtz v. Hotel, Motel & Club Employees Union, Local 6, 391 U.S. 492 (1968)..............................................................................................................11, 12 Wirtz v. Local 153, Glass Bottle Blowers Assn., 389 U.S. 463 (1968)....................................................................................................................11 Case 2:15-cv-01979-GMN-CWH Document 40 Filed 03/10/17 Page 3 of 18 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF AUTHORITIES (cont’d) Page 4 DEFENDANT’S NOTICE OF MOTION AND CROSS-MOTION FOR SUMMARY JUDGMENT; MEMORANDUM OF POINTS AND AUTHORITIES Case No. 2:15-cv-01979 GMN-CWH Federal Statutes 29 U.S.C. § 401...............................................................................................................................12 29 U.S.C. § 481(b) ............................................................................................................................7 29 U.S.C. § 481(c) ..........................................................................................................................11 29 U.S.C. § 481(e) ................................................................................................................7, 11, 12 8 U.S.C.] §§ 1324a(b)(1)(B)-(D) ....................................................................................................16 Federal Rules Rule 56 of the Federal Rules of Civil Procedure ..............................................................................5 Federal Regulations 29 C.F.R. 452.36(a).........................................................................................................................12 29 C.F.R. § 452.36(b) .....................................................................................................................13 29 C.F.R. § 452.53 ..........................................................................................................................12 29 C.F.R. § 452.57(a)........................................................................................................................7 Case 2:15-cv-01979-GMN-CWH Document 40 Filed 03/10/17 Page 4 of 18 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5 DEFENDANT’S NOTICE OF MOTION AND CROSS-MOTION FOR SUMMARY JUDGMENT; MEMORANDUM OF POINTS AND AUTHORITIES Case No. 2:15-cv-01979 GMN-CWH Defendant Local 872 Laborers’ International Union of North America hereby moves for summary judgment against Plaintiff Edward C. Hugler, Acting Secretary of Labor, United States Department of Labor pursuant to Rule 56 of the Federal Rules of Civil Procedure. This motion is based on this Notice of Motion, the Memorandum of Point and Authorities below, the declarations and exhibits file concurrently, and on all papers and pleadings on file. This motion is made on the grounds that there is no issue of material fact with respect to the disqualification of candidate Martin Trujillo in April 2015 and Defendant is entitled to judgment as a matter of law. Dated: March 10, 2017 LAW OFFICES OF KRISTINA L. HILLMAN Affiliated with Weinberg, Roger & Rosenfeld A Professional Corporation Respectfully Submitted: /S/ KRISTINA L. HILLMAN By: Kristina L. Hillman Kerianne R. Steele Attorneys for Defendant LOCAL 872, LABORERS INTERNATIONAL UNION OF NORTH AMERICA Case 2:15-cv-01979-GMN-CWH Document 40 Filed 03/10/17 Page 5 of 18 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6 DEFENDANT’S NOTICE OF MOTION AND CROSS-MOTION FOR SUMMARY JUDGMENT; MEMORANDUM OF POINTS AND AUTHORITIES Case No. 2:15-cv-01979 GMN-CWH WEINBERG, ROGER & ROSENFELD A Professional Corporation 1001 Marina Village Parkway, Suite 200 Alameda, California 94501 (510) 337-1001 MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION The dispute in this action concerns the disqualification of one potential candidate for Vice-President, Martin Trujillo (“Trujillo”), in the election of officers held by Defendant Local 872 Laborers’ International Union of North America (“Local 872”) on April 18, 2015. Following the proper appointment of Election Judges and prior notice of the nomination meeting and requirements to run for office, Trujillo failed to present evidence that he could meet the permanent resident/lawfully employable requirement that all candidates must satisfy. This failure resulted in disqualification. The United States Department of Labor, by and through its acting Secretary of Labor, Edward C. Hugler (collectively “DOL”) claims that the disqualification of Trujillo violated the provisions of the Labor Management Reporting and Disclosure Act (“LMRDA”) because the permanent resident/lawfully employable qualification was not reasonable or uniformly applied. Because of this, the DOL seeks to have the April 2015 election declared void and a new election conducted under its supervision for the office of Vice President. The undisputed evidence establishes that the permanent resident/lawfully employable requirement was reasonable and was uniformly applied, which resulted in Trujillo being properly disqualified for failing to meet that qualification. 1 If Trujillo was properly disqualified for failing to meet the permanent resident/lawfully employable requirement there was no violation of the LMRDA as a matter of law and summary judgment must be granted. II. FACTS Local 872 is a labor organization subject to the LRMDA. Local 872 is affiliated with the Laborers International Union of North America (“LIUNA”). The LMRDA requires elections at 1 A second ground for Trujillo’s disqualification was his failure to meet the literacy requirement. The literacy requirement is fully discussed in Local 872’s opposition to the DOL’s motion for summary judgment. It is Local 872’s position that if Trujillo was properly disqualified because of his failure to meet the permanent resident/lawfully employable requirement, there was no violation of the LMRDA and no need for the Court to consider whether the literacy requirement violated the LMRDA. Case 2:15-cv-01979-GMN-CWH Document 40 Filed 03/10/17 Page 6 of 18 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7 DEFENDANT’S NOTICE OF MOTION AND CROSS-MOTION FOR SUMMARY JUDGMENT; MEMORANDUM OF POINTS AND AUTHORITIES Case No. 2:15-cv-01979 GMN-CWH WEINBERG, ROGER & ROSENFELD A Professional Corporation 1001 Marina Village Parkway, Suite 200 Alameda, California 94501 (510) 337-1001 the local level to be held at least every three years, as does LIUNA’s Uniform Local Union Constitution (“ULUC”). 29 U.S.C. § 481(b); ECF 31-4, Ex. 2, Art. VI, § 1(h) at US 366 (elected officers serve for a term of three years). 2 Unions are free to establish their own election procedures, 29 C.F.R. § 452.57(a), as long as those procedures provide a reasonable opportunity for the nomination of candidates. 29 U.S.C. § 481(e). A. THE ELECTION PROCEDURES AND REQUIREMENTS The officers of a Local Union consist of President, Vice President, Recording Secretary, Secretary-Treasurer, Business Manager-Delegate-Convention Delegate, Sergeant-at-Arms, three auditors, and additional members of the Executive Board. ECF 31-4, Ex. 2, Art. IV, § 1 at US 355. The President, Vice President, Recording Secretary, Secretary-Treasurer and Business Manager also serve on the Local’s Executive Board. Id., § 4(H) at US 361. The ULUC establishes the qualifications for a member to hold “any office in a Local Union.” The member is required to be, among other things: (1) a lawful permanent resident and lawfully employable under the laws of the United States or Canada; and (2) literate. ECF 31-4, Ex. 2, Art. V, §§ 1, 3 at US 355; ECF 31-5, Ex. 3A at US 61. Pursuant to the ULUC, “[a]ll of the qualifications for office must be present at the time of nominations, as well as at the time of election and during the term of office.” Id., § 10 at US 365. The ULUC sets forth the nominations procedure. ECF 31-4, Ex. 2 at US 365, Art. VI, §§ 1(e), (f), (g). When nominations have been completed, the candidates are required to appear before the Election Judges, “who shall examine them in order to determine whether or not each candidate possesses all of the qualifications” to hold office. Id., § 2(a). After completing their examination of the candidates, the Election Judges “shall pass upon and decide whether or not each candidate qualifies, as provided,” and prepare a report to the membership. Id., § 2(e). For Local 872, this process occurs immediately at the conclusion of the scheduled nominations meeting. 2 References to evidence are to documents filed by the DOL in support of its motion for summary judgment. Additional evidence is submitted with the Declaration of Kristina L. Hillman in support of Local 872’s opposition to the DOL’s motion and this cross-motion. Case 2:15-cv-01979-GMN-CWH Document 40 Filed 03/10/17 Page 7 of 18 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8 DEFENDANT’S NOTICE OF MOTION AND CROSS-MOTION FOR SUMMARY JUDGMENT; MEMORANDUM OF POINTS AND AUTHORITIES Case No. 2:15-cv-01979 GMN-CWH WEINBERG, ROGER & ROSENFELD A Professional Corporation 1001 Marina Village Parkway, Suite 200 Alameda, California 94501 (510) 337-1001 B. NOTICE OF THE APRIL 2015 ELECTION Consistent with the ULUC requirements, Election Judges were properly appointed prior to the nomination meeting. See Declaration of Kristina L. Hillman (“Hillman Dec.”), Ex. 6 at 36- 37. As required by the ULUC, the Local retained Merriman River Group, an outside election administrator, ECF 31-7, Ex. 4 at US 158-159, to circulate an official notice of the nomination meeting in English and Spanish (“Notice”). ECF 31-4, Ex. 2, Art. VI, § 1(b) at US 365. The Notice explained, in both English and Spanish: All candidates in attendance at the nominations meeting are required to meet with the Judges of Election to determine their qualifications immediately after the close of nominations. The Judges will announce their findings prior to the close of the nominations meeting. Candidates deemed eligible must attend an Election Rules meeting immediately after the nominations meeting is adjourned. Article V of the Uniform Local Union Constitution states Local Office qualifications include, but are not limited to: Each candidate must be literate. Each candidate must be a member in continuous good standing in both the Local Union for two years prior to nominations and the International Union for two years prior to nominations and be current in payment of union dues and be working at the calling for the entire year immediately prior to the nominations. Each candidate shall be a lawful permanent resident and shall be lawfully employable under the laws of the United States. Each candidate shall comply with the applicable provisions of the Labor Management Reporting and Disclosure Act. ECF 31-7, Ex. 4 at US 158-159. The Notice listed the qualifications for officers, including the literacy requirement and the required documentation that needed to be presented: Each candidate shall be required to present to the Judges of Election one of the following items: 1) Birth Certificate (Original or Certified Copy) issued by a State, County, Municipal Authority or outlying possession of the USA bearing an official seal. Case 2:15-cv-01979-GMN-CWH Document 40 Filed 03/10/17 Page 8 of 18 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 9 DEFENDANT’S NOTICE OF MOTION AND CROSS-MOTION FOR SUMMARY JUDGMENT; MEMORANDUM OF POINTS AND AUTHORITIES Case No. 2:15-cv-01979 GMN-CWH WEINBERG, ROGER & ROSENFELD A Professional Corporation 1001 Marina Village Parkway, Suite 200 Alameda, California 94501 (510) 337-1001 2) USA Passport, expired or unexpired. 3) Alien Registration Receipt Card (Green Card); or 4) Any other document that establishes lawful permanent residency or that is recognized by the Immigration and Naturalization Service (INS). Id. Trujillo admits he received the Notice and understood the qualifications. Hillman Dec., Ex. 1 at 24:24-25:24. 3 Trujillo also admits that he knew that he would have to bring documents with him to the nomination meeting to show that he was a lawful permanent resident. Id., 45:22-25; see also Hillman Dec., Ex. 3 at 25; Declaration of Robert Abbott (“Abbott Dec.”), p. 2, ¶ 3. C. THE NOMINATION MEETING AND DISQUALIFICATION OF TRUJILLO The nomination meeting was held on April 18, 2015. At the outset of the meeting, President McCune explained the rules of the election process and announced that “all credentials must be presented following the conclusion of the nominations.” Hillman Dec., Ex. 2 at 19. The only challenged positions were for the office of Vice President, for which incumbent Marco Hernandez and Trujillo were nominated, the office of Recording Secretary, for which incumbent Louis DaSilva and Marco Reveles (“Reveles”) were nominated, and the office of Business Manager-Delegate/Secretary Treasurer, for which incumbent Thomas White and John Stevens (“Stevens”) were nominated. Hillman Dec., Ex. 2 at 19-20. 4 Consistent with the ULUC and the Notice, after the nominations closed, each of the candidates submitted a candidate questionnaire and met with the Election Judges to determine their qualifications. 3 References to Trujillo’s deposition testimony contained in Exhibit 1 are to the page and line numbers of the deposition transcript as opposed to the consecutively paginated numbers of the exhibit. References to all other exhibits attached to the Hillman Declaration are to the consecutively paginated numbers. 4 Stevens was disqualified because he failed to meet the requirement that a candidate must have been “working at the calling for the entire year immediately prior to the nomination meeting.” ECF 31-12, Ex. 2 at US 161. The disqualification of Stevens is not an issue in this action. Case 2:15-cv-01979-GMN-CWH Document 40 Filed 03/10/17 Page 9 of 18 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 10 DEFENDANT’S NOTICE OF MOTION AND CROSS-MOTION FOR SUMMARY JUDGMENT; MEMORANDUM OF POINTS AND AUTHORITIES Case No. 2:15-cv-01979 GMN-CWH WEINBERG, ROGER & ROSENFELD A Professional Corporation 1001 Marina Village Parkway, Suite 200 Alameda, California 94501 (510) 337-1001 Trujillo read and understood the Notice and saw the list of documents that would be required for nomination. He understood these documents were necessary to verify that he was legally able to work in the United States. Hillman Dec., Ex. 1 at 24:24-25:24, Ex. 3, at 25. Trujillo did not have the required documents with him at the nomination meeting; he forgot to bring them. Hillman Dec., Ex. 1 at 43:13-21, 45:22-25; Ex. 3, at 25 (“On the day of the nominations [Trujillo] forgot the residency card at home…”). When asked to present proof of permanent residency/lawfully employable documentation, Trujillo and Reveles, the candidate for Recording Secretary, each presented their California Driver’s License. ECF 31-8, Ex. 5 at US 260; Hillman Dec., Ex. 4, at 28. Trujillo was disqualified for failing to bring proper identification to the nomination meeting. ECF 31-12, Ex. 2 at US 163. The failure to have the proper paperwork to establish the permanent residency/lawfully employable condition was one of the factors resulting in Reveles’ disqualification. ECF 31-9, Ex. 6 at US 223. His disqualification is not challenged by the DOL. 5 The ULUC provides the time for settling qualifications is when the examination is set by the Election Judges. ECF 31-4, Ex. 2, Art. VI, § 2(a)-(c) at US 367. For Local 872, that time is immediately at the conclusion of the nominations meeting. This serves important Union purposes: (1) it sets a definitive time when nominations will be settled; (2) it prevents candidates from playing games over who is nominated; and (3) it establishes a definitive time when all necessary election officials and candidates are available to rule on eligibility and candidates or members can challenge the eligibility of candidates. Any other system would delay the rulings on eligibility, create uncertainty and delay and unfairly prejudice all other candidates who have a right to challenge the eligibility of other candidates. Declaration of Robert Abbott (“Abbott Dec.”), p. 2, ¶ 3. 5 Reveles was also disqualified for missing roll call. The DOL has not explained the inconsistency in failing to challenge Reveles’ disqualification for failure to present the required documentation. This inconsistency may be seen as an implicit acknowledgement that disqualification for failing to present documents evidencing permanent residency/lawfully employable status at the nomination meeting is a reasonable requirement that was uniformly applied. Case 2:15-cv-01979-GMN-CWH Document 40 Filed 03/10/17 Page 10 of 18 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 11 DEFENDANT’S NOTICE OF MOTION AND CROSS-MOTION FOR SUMMARY JUDGMENT; MEMORANDUM OF POINTS AND AUTHORITIES Case No. 2:15-cv-01979 GMN-CWH WEINBERG, ROGER & ROSENFELD A Professional Corporation 1001 Marina Village Parkway, Suite 200 Alameda, California 94501 (510) 337-1001 Stevens appealed his disqualification and the disqualifications of Trujillo and Reveles to LIUNA. Following an investigation, LIUNA concluded: The evidence reflects that Mr. Trujillo understood the requirements for brining proper identification and he admitted that he knew a driver’s license would not be accepted by the Judges. The ‘Laborers #872 Candidate Questionnaire’ also lists the acceptable documents. Mr. Trujillo told the investigator that he simply forgot his documents on the kitchen table. Other candidates successfully met this requirement and the rules must be evenly applied. ECF 31-12 at US 163. III. ARGUMENT A. THE FUNCTION OF THE LMRDA The purpose of the LMRDA is “to ensure ‘free and democratic’ elections” of union officers. Wirtz v. Hotel, Motel & Club Employees Union, Local 6, 391 U.S. 492, 496 (1968) (“Hotel Employees”), quoting Wirtz v. Local 153, Glass Bottle Blowers Assn., 389 U.S. 463, 470 (1968). The goal of the LMRDA is to “protect the rights of the rank-and-file members to participate fully in the operation of their union through processes of democratic self-government, and, through the election process, to keep the union leadership responsive to the membership….” Hotel Employees, 391 U.S. at 497-98. In achieving this goal, Congress gave unions considerable leeway to conduct their affairs without undue intervention from the Secretary of Labor or the courts. Id. The Act requires unions to ensure that their elections are fair, 29 U.S.C. § 481(c), and that they are conducted in accordance with the union’s constitution and bylaws. Id., § 481(e). The “considerable freedom and latitude” granted to unions in conducting elections “reflects Congress’ goal that ‘unions should be left free to operate their own affairs, as far as possible.’ United Steelworkers of America v. Sadlowski, 457 U.S. 102, 117 (1982).” Chao v. Local 442, United Assn of Journeymen & Apprentices of the Plumbing & Pipefitting Indus., etc., 203 F.Supp.2d 1170, 1174-1175 (E.D.Cal. 2002); see also Reich v. Local 89, Laborers Int’l Union of N. America, 36 F.3d 1470, 1473 (9th Cir.1994) (“Local 89, LIUNA”) (LMRDA goal “is to be balanced against a ‘long-standing policy against unnecessary governmental intrusions into Case 2:15-cv-01979-GMN-CWH Document 40 Filed 03/10/17 Page 11 of 18 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 12 DEFENDANT’S NOTICE OF MOTION AND CROSS-MOTION FOR SUMMARY JUDGMENT; MEMORANDUM OF POINTS AND AUTHORITIES Case No. 2:15-cv-01979 GMN-CWH WEINBERG, ROGER & ROSENFELD A Professional Corporation 1001 Marina Village Parkway, Suite 200 Alameda, California 94501 (510) 337-1001 internal union affairs,’” citing Hotel Employees at 496); Brock v. Writers Guild of America, West, Inc., 762 F.2d 1349, 1355 (9th Cir.1985) (Congress meant to further policy of LMRA “with a minimum of governmental interference in the internal affairs of unions.”) B. THE DOL CANNOT MEET ITS BURDEN TO SHOW THAT A VIOLATION OF THE LMRDA OCCURRED In order to prevail in an enforcement action under section 401 of the LMRDA, 29 U.S.C. § 401, the Secretary of Labor “must prove by a preponderance of the evidence that a violation of that section occurred and that the violation may have affected the outcome of the election.” Local 89, LIUNA, 36 F.3d at 1474. The DOL cannot meet the first prong of its burden because there was no violation of the LRMDA when Trujillo was disqualified for failing to present proof that he met the permanent resident/lawfully employable requirement. 1. The Permanent Resident/Lawfully Employable Requirement is Reasonable Every union member in good standing “shall be eligible to be a candidate and to hold office” subject to “reasonable qualifications uniformly imposed.” 29 U.S.C. § 481(e). With respect to qualifications, “[r]easonableness does not have a bright line definition. What is reasonable varies with the circumstances.” Reich v. Local 30, Int’l Bhd. of Teamsters, 6 F.3d 978, 979 (3d Cir.1993); Local 3489, United Steelworkers v. Usery, 429 U.S. 305, 313 (1977) (qualifications are to be gauged “in the light of all the circumstances of the particular case”); 29 C.F.R. 452.36(a) (question of whether qualification is reasonable is not “susceptible of precise definition and will ordinarily turn on the facts in each case.”) “An essential element of reasonableness is adequate advance notice to the membership of the precise terms of the requirement. A qualification which is not part of the constitution and bylaws or other duly enacted rules of the organization may not be the basis for denial of the right to run for office… .” 29 C.F.R. § 452.53. Other factors that may be considered in evaluating the reasonableness of a qualification include: (1) The relationship of the qualification to the legitimate needs and interests of the union; (2) the relationship of the qualification to the demands Case 2:15-cv-01979-GMN-CWH Document 40 Filed 03/10/17 Page 12 of 18 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 13 DEFENDANT’S NOTICE OF MOTION AND CROSS-MOTION FOR SUMMARY JUDGMENT; MEMORANDUM OF POINTS AND AUTHORITIES Case No. 2:15-cv-01979 GMN-CWH WEINBERG, ROGER & ROSENFELD A Professional Corporation 1001 Marina Village Parkway, Suite 200 Alameda, California 94501 (510) 337-1001 of union office; (3) the impact of the qualification, in the light of the Congressional purpose of fostering the broadest possible participation in union affairs; (4) a comparison of the particular qualification with the requirements for holding office generally prescribed by other labor organizations; and (5) the degree of difficulty in meeting a qualification by union members. 29 C.F.R. § 452.36(b). These five factors are not exhaustive in assessing reasonableness. Chao v. Bremerton Metal Trades Council, 294 F.3d 1114, 1123 (9th Cir.2002). 2. Members had Advance Notice that the Permanent Resident/Lawfully Employable Requirement was to be Satisfied at the Nominations Meeting The permanent resident/lawfully permitted to work requirement is contained in several basic documents governing the election, as is the requirement that such documentation had to be presented at the time of nomination. In order to qualify as a candidate for any office in a Local Union, a member: Section 2. Shall be a lawful permanent resident and shall be lawfully employable under the laws of the United States or Canada. Section 10. All of the qualifications for office must be present at the time of nominations, as well as at the time of election and during the term of office. ECF 31-4, Ex. 2, Art. V at US 363, 365; see also ECF 31-8, Ex. 4 at US 158-159 (Article V of the Local Const. “states Local Union Officer qualifications include... .”) Both requirements were also clearly spelled out in English and Spanish on the Notice. The Notice provides that each candidate “shall be required” to present one of the following items to the Judges of Election: (1) a birth certificate; or (2) a US passport, expired or current; or (3) a Green Card; or (4) “any other document that establishes lawful permanent residency or that is recognized by the Immigration and Naturalization Service (INS).” ECF 31-7, Ex. 4 at US 158- 159, emphasis added. The Notice further provides “All candidates in attendance at the nominations meeting are required to meet with the Judges of Election to determine their qualifications immediately after the close of nominations.” Id., emphasis added. The candidates Case 2:15-cv-01979-GMN-CWH Document 40 Filed 03/10/17 Page 13 of 18 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 14 DEFENDANT’S NOTICE OF MOTION AND CROSS-MOTION FOR SUMMARY JUDGMENT; MEMORANDUM OF POINTS AND AUTHORITIES Case No. 2:15-cv-01979 GMN-CWH WEINBERG, ROGER & ROSENFELD A Professional Corporation 1001 Marina Village Parkway, Suite 200 Alameda, California 94501 (510) 337-1001 and all the members had clear advance written notice that permanent residency/lawfully employable documentation would be required in order to be qualified as a candidate, and that those documents needed to be presented as soon as the nomination process was declared closed. This is not a situation where the requirement was not reasonably disclosed prior to the nomination meeting. The undisputed evidence is that Trujillo knew he had to bring documents to the nominations meeting, he had the necessary documents to meet the permanent resident/ lawfully employable requirement and that he simply forgot to bring them to the Nomination Meeting. Hillman Dec., Ex. 1 at 43:13-21, 45:22-25; Ex. 3 at 25 (Trujillo understood documents would be used to verify he was legally able to work in the United States, he forgot the residency card at home) ECF 31-12 at US 163 (Trujillo understood the requirements for bringing proper identification, “he simply forgot his documents on the kitchen table.”) The Notice also clearly sets forth information—in English and Spanish—about when the permanent resident/lawfully employable documents were to be presented. “All candidates in attendance at the nominations meeting are required to meet with the Judges of Election to determine their qualifications immediately after the close of nominations.” ECF 31-7, Ex. 4 at US 158-159, emphasis added. This requirement is also spelled out in the ULUC, ECF 31-4, Ex. 2, Art. V, § 10 at US 363, 365, which Trujillo did not read prior to attending the nomination meeting. Hillman Dec., Ex. 1, 26:13-19. The requirement to present documents at the close of the nomination meeting was reiterated at the start of the meeting, when President McCune explained that “all credentials must be presented following the conclusion of nominations.” Hillman Dec., Ex. 2 at 19. Based on its own investigation, the International concluded that Trujillo was properly disqualified for failing to present the documents necessary to meet the permanent residency/lawfully employable requirement. ECF 31-12 at US 163. This interpretation and application of the rules and procedures set forth in the ULUC is entitled to deference. / / / / / / Case 2:15-cv-01979-GMN-CWH Document 40 Filed 03/10/17 Page 14 of 18 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 15 DEFENDANT’S NOTICE OF MOTION AND CROSS-MOTION FOR SUMMARY JUDGMENT; MEMORANDUM OF POINTS AND AUTHORITIES Case No. 2:15-cv-01979 GMN-CWH WEINBERG, ROGER & ROSENFELD A Professional Corporation 1001 Marina Village Parkway, Suite 200 Alameda, California 94501 (510) 337-1001 Absent bad faith or other compelling circumstance, the union’s interpretation of its constitution, as well as its interpretation of its own rules and procedures, should prevail over the court’s notion as to how the union should conduct its affairs. Busch v. Givens, 627 F.2d 978, 981 (9th Cir.1980). See also Stelling v. Electrical Workers, 587 F.2d 1379, 1389 (9th Cir.1978), cert. denied, 442 U.S. 944, 99 S.Ct. 2890, 61 L.Ed.2d 315 (1979). Brock v. Local 1130, Laborers’ Int'l Union of N. Am., AFL-CIO, 736 F.Supp. 1566, 1570 (E.D. Cal. 1987); see also Chao v. Local 442, 203 F.Supp.2d at 1173 (“Judicial deference to a union’s reasonable interpretation of its own constitution or bylaws is well- established”); Local No. 48, United Bhd. of Carpenters and Joiners v. United Bhd. of Carpenters and Joiners, 920 F.2d 1047 (1st Cir. 1990) (“judges should refrain from second-guessing labor organizations in respect to plausible interpretations of union constitutions”). 3. The Permanent Resident/Lawfully Employable Requirement was Uniformly Applied The Election Judges properly relied on the rule that documents establishing the proof of permanent residency/lawfully employable requirement needed to be presented immediately following the nomination meeting and properly invoked that rule to disqualify Trujillo and Reveles from running for office. The undisputed evidence establishes that the incumbent officers “produced passports showing they were legal residents of the United States.” ECF 31-8, Ex. 5 at US 259. Stevens, who was nominated for the Business Manager/Secretary-Treasurer position also produced the appropriate documentation. See ECF 31-9, Ex. 6 at US 218. Declaration of Robert Vigil (“Vigil Dec.”), p. 4 at ¶ 12. The only two candidates who failed to present one of the documents listed in the Notice, i.e., a birth certificate, a U.S. passport, a green card, or other documents establishing permanent residency ECF 31-7, Ex. 4 at US 158-159, were Trujillo and Reveles. Both instead presented their California driver’s licenses. ECF 31-8, Ex. 5 at 260; Hillman Dec., Ex. 4 at 28 (“I presented my California driver’s license”). Both were disqualified for failing to have the required documentation. Vigil Dec., p. 4 at ¶¶ 12, 13; ECF 31-9, Ex. 6 at US 221, 223. The rule was thus uniformly enforced against two candidates. Case 2:15-cv-01979-GMN-CWH Document 40 Filed 03/10/17 Page 15 of 18 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 16 DEFENDANT’S NOTICE OF MOTION AND CROSS-MOTION FOR SUMMARY JUDGMENT; MEMORANDUM OF POINTS AND AUTHORITIES Case No. 2:15-cv-01979 GMN-CWH WEINBERG, ROGER & ROSENFELD A Professional Corporation 1001 Marina Village Parkway, Suite 200 Alameda, California 94501 (510) 337-1001 The Election Judges’ decision to not accept a California driver’s license as proof of the permanent resident/lawfully employable requirement was not erroneous. An individual’s right to lawfully work in the United States can be confirmed by a “United States passport, resident alien card, alien registration card, or other document approved by the Attorney General; or by reviewing a combination of other documents such as a driver’s license and social security card. [8 U.S.C.] §§ 1324a(b)(1)(B)-(D).” Chamber of Commerce of the United States v. Whiting, 563 U.S. 582, 589 (2011). Trujillo did not produce any documents other than his driver’s license, which was patently insufficient to meet the permanent resident/lawfully employable requirement. Similarly, there was no error when the Election Judges chose to disqualify Trujillo and Reveles rather than allow them to leave the nomination meeting and return with the necessary documents. The documents necessary to meet the permanent residency/lawfully employable requirement were spelled out in English and Spanish on the Notice and in the ULUC. ECF 31-7, Ex. 4 at US 158-159, ECF 31-4, Ex. 2, Art. V, § 10 at US 363, 365. Trujillo read and understood the Notice and knew what he had to bring to the nomination meeting to prove permanent residency and the right to lawfully work in the United States—he simply forgot to bring them. Hillman Dec., Ex. 1 at 24:24-25:8, 43:13-21, 45:22-25. Under these circumstances, allowing Trujillo and Reveles go home to retrieve the necessary documents would undermine the nomination rules and undermine its uniform application. The International agreed with the Election Judges’ decision to disqualify Trujillo and Reveles for failing to have proof of the permanent residency/lawfully employable requirement—“ Mr. Trujillo understood the requirements for brining proper identification and he admitted that he knew a driver’s license would not be accepted by the Judges. The ‘Laborers #872 Candidate Questionnaire’ also lists the acceptable documents. Mr. Trujillo told the investigator that he simply forgot his documents on the kitchen table. Other candidates successfully met this requirement and the rules must be evenly applied.” ECF 31-12 at US 163; see also Hillman Dec., Ex. 1 at 24:24-25:8, 43:13-21, 45:22-25. Local 872’s and LIUNA’s interpretation and application of its internal election rules and requirements are entitled to deference. Brock v. Local 1130, 736 F.Supp. at 1570. Case 2:15-cv-01979-GMN-CWH Document 40 Filed 03/10/17 Page 16 of 18 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 17 DEFENDANT’S NOTICE OF MOTION AND CROSS-MOTION FOR SUMMARY JUDGMENT; MEMORANDUM OF POINTS AND AUTHORITIES Case No. 2:15-cv-01979 GMN-CWH WEINBERG, ROGER & ROSENFELD A Professional Corporation 1001 Marina Village Parkway, Suite 200 Alameda, California 94501 (510) 337-1001 IV. CONCLUSION Local 872’s April 2015 election was conducted in accord with the ULUC and the LRMDA. The ULUC and the Notice clearly spell out the qualifications for a member to hold office, specify the documents needed to establish the qualifications, and unambiguously state when those documents need to be presented. Members attending the nomination meeting were advised at the outset of the meeting that nominees would need to meet with the Election Judges immediately after the close of nominations to determine whether they were qualified to run for office. There is no dispute that every candidate for office, except for Trujillo and Reveles, was able to present the documents needed to establish they were lawful permanent residents and lawfully employable in the United States. Both Trujillo and Reveles were disqualified for failing to meet this requirement. There was no violation of the LMRDA in making the disqualification decision. Summary judgment must be granted because the DOL cannot establish a violation of the LMRDA occurred. For all of the foregoing reasons, Local 872 respectfully requests that Court grant this motion and enter judgment in favor of Local 872. Dated: March 10, 2017 LAW OFFICES OF KRISTINA L. HILLMAN Affiliated with Weinberg, Roger & Rosenfeld A Professional Corporation Respectfully Submitted: /S/ KRISTINA L. HILLMAN By: Kristina L. Hillman Attorneys for Defendant LOCAL 872, LABORERS INTERNATIONAL UNION OF NORTH AMERICA 139656\905858 Case 2:15-cv-01979-GMN-CWH Document 40 Filed 03/10/17 Page 17 of 18 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 18 DEFENDANT’S NOTICE OF MOTION AND CROSS-MOTION FOR SUMMARY JUDGMENT; MEMORANDUM OF POINTS AND AUTHORITIES Case No. 2:15-cv-01979 GMN-CWH WEINBERG, ROGER & ROSENFELD A Professional Corporation 1001 Marina Village Parkway, Suite 200 Alameda, California 94501 (510) 337-1001 CERTIFICATE OF SERVICE I am a citizen of the United States and an employee in the County of Alameda, State of California. I am over the age of eighteen years and not a party to the within action; my business address is1001 Marina Village Parkway, Suite 200, Alameda, California 94501. I hereby certify that on March 10, 2017, I electronically filed the forgoing Defendant’s Notice of Motion and Cross-Motion for Summary Judgment; Memorandum of Points and Authorities with the United States District Court, District of Nevada, by using the Court’s CM/ECF system. I certify under penalty of perjury that the above is true and correct. Executed at Alameda, California, on March 10, 2017. I certify that all participants in the case are registered CM/ECF users and that service will be accomplished by the Notice of Electronic Filing by CM/ECF system. /s/ Mary Piro Mary Piro Case 2:15-cv-01979-GMN-CWH Document 40 Filed 03/10/17 Page 18 of 18