USDOL v. National Federation of Federal Employees, 1999-SOC-3 (ALJ Feb. 5, 2001)

U.S. Department of Labor

Office of Administrative Law Judges 800 K Street, NW, Suite 400-N Washington, DC 20001-8002

Date Issued: 2-5-01
Case No.: 99-SOC-3

In the Matter of

Chief, Division of Enforcement, Office of
Labor-Management Standards Administration, (DOL)
    Complainant

v.

National Federation of Federal Employees,
    Respondent

   On June 1, 1999, the Chief, Division of Enforcement, Office of Labor- Management Standards Administration, filed a complaint pursuant to Title VII of the Civil Service Reform Act of 1978, 5 U.S.C. §§ 7101 et seq, and the implementing regulations at 29 C.F.R. Part 457 and 458. The Complaint alleged that an election was conducted by the National Federation of Federal Employees on September 2, 1998, supervised by the Secretary of Labor. Following the election, Mr. Al Schmidt, the Complainant, filed a complaint with the Secretary of Labor, which was investigated by the Chief, who determined that there was probable cause to believe that a violation of the CSRA had occurred in the conduct of the election which had not been remedied, and which may have affected the outcome of the election. The national was notified of these findings, and ordered to rerun its election under the Secretary's supervision for the offices of National president and national secretary treasurer. The national was unwilling to rerun the election for these offices.

    Specifically, the Chief determined that Section 401(g) of the LMRDA, 29 U.S.C. 481(g), was violated during the election in that moneys of a labor organization were applied to promote the candidacies of persons in the election when statements critical of the Complainant, the incumbent national president, and by inference Joyce James, his running mate and candidate for National secretary treasurer, were made in a memorandum that was composed on union equipment, and printed on union letterhead; and that moneys of an employer were applied to promote the candidacies of persons in the election when these statements were transmitted using the employer's office equipment.

    The Chief requested that the September 2, 1998 election for the offices of national president and national secretary treasurer be declared null and void, and directed the national to conduct a new election for these offices under the supervision of the Chief.     A hearing was scheduled on December 1, 1999. At that time, the parties appeared and informed the Court that they had reached agreement for a settlement of the dispute that was the subject of the complaint. The agreement, which is attached hereto and incorporated herein, provided that the National would conduct a remedial election for the offices of national president and national secretary-treasurer under the supervision of the Chief, as further described in the settlement agreement. By the terms of the settlement agreement, this Court was to retain jurisdiction until the results of the election were certified by the Chief, Division of Enforcement, OLMS, and the officers were installed, and the Court entered a decree dismissing the Complaint.

    On January 23, 2001, the Solicitor submitted a Motion for Entry of Final Judgment addressed to the Assistant Secretary for Employment Standards. Attached was a Certification of Election signed by Lary F. Yud, the Chief, Division of Enforcement, certifying the results of the new election, that is, that Richard N. Brown had been duly elected as President, Directing Business Representative, and that Thomas Ray had been duly elected as Secretary- Treasurer. Mr. Yud also attached a Declaration that set forth the protest by Mr. Schmidt in regard to alleged violations that occurred during the conduct of the election, as well as Mr. Yud's investigative findings.

    I have reviewed Mr. Yud's certification, and pursuant to the terms of the Settlement Agreement, I find that it is appropriate for me to dismiss the original complaint that was before me, that is the complaint involving the use of union and employer facilities during the course of the original election.

    Having determined that the parties freely and willingly signed the Settlement Agreement, free from coercion, fraud, or duress, I hereby recommend that the Settlement Agreement, the terms of which are specifically incorporated herein, be APPROVED, and that, the terms of the Settlement Agreement having been carried out, this matter be DISMISSED. In accordance with 29 C.F.R. Part 458.70, I hereby transmit this Recommended Decision and Order, along with the entire case file, to the Assistant Secretary of Labor for appropriate action.

       LINDA S. CHAPMAN
      Administrative Law Judge