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BRODSKY v. HERMAN

October 30, 2000

HOWARD BRODSKY, PLAINTIFF,
V.
ALEXIS HERMAN, SECRETARY OF LABOR, UNITED STATES DEPARTMENT OF LABOR, AND UNION LOCAL 306, MOTION PICTURE PROJECTIONISTS, VIDEO TECHNICIANS AND ALLIED CRAFTS, I.A.T.S.E., DEFENDANT



The opinion of the court was delivered by: Motley, District Judge.

OPINION GRANTING SUMMARY JUDGMENT

OPINION

Plaintiff filed this federal question suit against Union Local 306 (Union) and the Secretary of Labor under § 481 of the Labor Management Reporting and Disclosure Act (LMRDA) in 1997 requesting that: (1) the Secretary's findings with respect to Plaintiff's previously filed claim against the Union's 1995 election be declared arbitrary and capricious, an abuse of discretion, and contrary to law; (2) the court order the Secretary to institute suit under § 402 of the LMRDA to set aside the election; and (3) the Union be ordered to recompense Plaintiff for his costs in defending a "SLAPP" suit.*fn1 On February 23, 1999 this court dismissed Plaintiffs complaint against the Union, holding that only the Secretary may be sued in a Title IV action and that only the Secretary can file suit to set aside an election. See Brodsky v. Herman, 1999 Lexis 1852 at *2-4, 1999 WL 97900, *1-2 (S.D.N.Y. 1999).

The Secretary then filed the instant motion for summary judgment on July 9, 1999, arguing that there is no issue of material fact to be decided. The Secretary maintains that the Statement of Reasons for her decision not to require a new election provides an adequate factual basis for the dismissal of Plaintiff's claim that the Union election was invalid. In response, Plaintiff claims that the Secretary's Statement, setting forth her reasons for refusing to order a new election in this case, constitutes a gross abuse of discretion. For the reasons stated below, the summary judgment motion is granted and this case is dismissed.

I. Facts

Plaintiff was an unsuccessful candidate for Secretary-Treasurer of the Union in the Union's 1995 elections. Plaintiff thereafter filed a complaint with the Secretary of the Department of Labor (DOL) asking that the election results be set aside because of alleged improprieties in connection with that election (unsupervised collection of ballots; control of ballots left to incumbent; improper nomination for candidacy of the Union's president; harassment of Plaintiff at meetings and the commencement by the Union of a "SLAPP" suit against Plaintiff).

The Secretary of Labor denied Plaintiff's complaint and request for a new election. She submitted a Statement of Reasons explaining her denial. The Secretary found that: (1) the Union's constitution was not violated by the failure of the Union to appoint opposition candidates to the Ballot Committee; (2) the evidence presented by Plaintiff failed to establish the veracity of his complaint that opposition candidates were denied the opportunity to observe the election process; (3) Plaintiff failed to establish the materiality of his complaints about the Union's collection and control of the election ballots because no ballot tampering was alleged; (4) the evidence indicated that the "SLAPP" suit filed against Plaintiff was not retaliatory or improper; and (5) the evidence revealed no violations of the Local 306 Constitution in the nomination of the Union president.

II. Summary Judgment Standards

The standard for summary judgment is that "[u]ncertainty as to the true state of any material fact defeats the motion." Gibson v. Am. Broad. Companies, 892 F.2d 1128, 1132 (2d Cir. 1989). The nonmoving party's burden is to produce concrete evidence sufficient to establish a genuine unresolved issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-24, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Dister v. Continental Group, Inc., 859 F.2d 1108, 1114 (2d Cir. 1988). The court then must view the facts in the light most favorable to the non-movant. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); Gallo v. Prudential Residential Servs., Ltd. Partnership, 22 F.3d 1219, 1224 (2d Cir. 1994). The court neither weighs evidence nor resolves material factual issues, but only determines whether, after adequate discovery, any such issues remain unresolved because a reasonable fact finder could decide for either party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Gibson, 892 F.2d at 1132. "However, neither `conclusory statements, conjecture, [n]or speculation' suffice to defeat summary judgment." Johnson v. Delphi Energy & Engine Management Systems, 181 F.3d 82, 82 (2d Cir. 1999).

III. Standard of Review of Department of Labor Findings

A federal district court may review the decision of the Secretary of the Department of Labor only to determine whether the decision was arbitrary, capricious, an abuse of discretion or otherwise not in accordance with the law. See Dunlop v. Bachowski, 421 U.S. 560, 573, 95 S.Ct. 1851, 44 L.Ed.2d 377 (1975), overruled in not relevant part by Local No. 82, Furniture & Piano Moving, Furniture Store Drivers, Helpers, Warehousemen & Packers v. Crowley, 467 U.S. 526, 549-50, 104 S.Ct. 2557, 81 L.Ed.2d 457 (1984). In making its determination, the court must "consider the statement of reasons justifying the decision to determine whether the path which the agency followed can be discerned, and whether the decision was reached for an impermissible reason or [for] no reason at all."' See Vargas v. Immigration & Naturalization Service, 938 F.2d 358, 360 (2d Cir. 1991) (citing Dunlop, 421 U.S. at 573, 95 S.Ct. 1851). The statement should inform the court "of both the grounds of decision and the essential facts upon which the Secretary's inferences are based." See Dunlop, 421 U.S. at 573-74, 95 S.Ct. 1851.

Only in a rare case, such as where the "Secretary grossly abuses his discretion by, for example, declaring he will not enforce Title IV, or prosecuting complaints in a constitutionally discriminatory manner," may the court go beyond the Statement of Reasons. See Maldonado v. Brock, 661 F. Supp. 548, 551 (S.D.N Y 1987). Plaintiff contends that this is such a case because of the nature of the Union's violations and the fact that the Secretary took 169 days to issue her Statement. However, the rare case is one in which the Secretary, not the Union, grossly abuses discretion. Therefore, the conduct of the Union is not relevant for this determination. Furthermore, the Secretary's conduct in this case does not rise to the level of a constitutional violation or a gross abuse of discretion as described above.*fn2 Therefore, this court is restricted to an examination of the Statement of Reasons in order to determine whether the Secretary provided a reasonable explanation for her decision.

Finally, the remedies available to Plaintiff in the district court are limited. Should the court determine that the Secretary's Statement of Reasons fails to provide an adequate account of her decision, the court may not order a new election. The Secretary retains the "exclusive authority to challenge and, if successful, to supervise union elections." See Local No. 82 v. Crowley, 467 U.S. 526, 548, 104 S.Ct. 2557, 81 L.Ed.2d 457 (1984). If the court determines that the Secretary's decision was arbitrary and capricious, the Secretary may be ordered to reopen consideration of Plaintiff's former complaint and to supplement her Statement.*fn3 See Dunlop, 421 U.S. at 574-75, 95 S.Ct. 1851.

This, and the fact that the Union has been dismissed from the action, means that the only issue before the court is whether the Secretary's ...


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