1998 U.S. Dist. LEXIS 916, *; 157 L.R.R.M. 2765;
136 Lab. Cas. (CCH) P10,263

UNITED STATES OF AMERICA and ROBERT B. REICH, Secretary of the United States Department of Labor, Plaintiffs, - against - MASON TENDERS DISTRICT COUNCIL OF GREATER NEW YORK, et al., Defendants.

94 Civ. 6487 (RWS)

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK

1998 U.S. Dist. LEXIS 916; 157 L.R.R.M. 2765; 136 Lab. Cas. (CCH) P10,263


January 29, 1998, Decided  
February 2, 1998, Filed

DISPOSITION:  [*1]  DiNuzzo's appeal denied.

CORE TERMS: election officer, election, protest, consent decree, monitor, ballot, newsletter, Election Rules, candidate, mailing, campaign, listing, post-election, pre-election, constituent, candidacy, printing, mailed, mail, substantial evidence, et seq, capricious, campaign literature, election process, new evidence, democratically, hand-delivered, superimposed, involvement, favoritism

COUNSEL: PETER J. DiNUZZO, JR., Petitioner, Pro se, Stony Point, NY.
 
For United States of America: MANVIN S. MAYELL, AUSA, Of Counsel, HONORABLE MARY JO WHITE, United States Attorney for the Southern District of New York, New York, NY.
 
For Court-Appointed Monitor: LAWRENCE B. PEDOWITZ, ESQ., WACHTELL, LIPTON, ROSEN & KATZ, New York, NY.

JUDGES: ROBERT W. SWEET, U.S.D.J.

OPINIONBY: ROBERT W. SWEET

OPINION: OPINION
 
Sweet, D.J.

Peter J. DiNuzzo, Jr. ("DiNuzzo") has appealed from a decision of the court-appointed monitor (the "Monitor") of the Mason Tenders District Council (the "MTDC"), upholding the decisions of the election officer (the "Election Officer") which resolved five election protests filed by DiNuzzo regarding an election held in Local 79 of the MTDC ("Local 79"). For the reasons set forth below, the appeal is denied.
 
Parties

The MTDC is chartered by the Laborers' International Union of North America ("LIUNA"), a national labor organization, to oversee the operations of LIUNA's constituent local unions in the New York City metropolitan area.

DiNuzzo is a member of Local 79 and was a candidate for the position of Business Manager  [*2]  in the 1997 election at the Local.
 
Prior Proceedings

The facts of this proceeding have been set forth in greater detail in several prior opinions of the Court, familiarity with which is assumed. See United States v. Mason Tenders District Council, ("Lanza"), 1997 U.S. Dist. LEXIS 2360, No. 94 Civ. 6487, 1997 WL 97836 (S.D.N.Y. March 6, 1997); United States v. Mason Tenders Council of Greater New York, ("Messana"), 1997 U.S. Dist. LEXIS 8715, No. 94 Civ. 6487, 1997 WL 97836 (S.D.N.Y. June 20, 1997); United States v. Mason Tenders Council of Greater New York, ("Wasnofski"), 1997 U.S. Dist. LEXIS 8741, No. 94 Civ. 6487, 1997 WL 97836 (S.D.N.Y. June 20, 1997). Facts relevant to the instant opinion are set forth below.

A. The Consent Decree

MTDC is currently subject to a consent decree (the "Consent Decree") entered by the Government, the MTDC and the employer-trustees of the MTDC Trust Funds and approved by the Court on December 27, 1994, as a result of a civil action brought by the United States on September 8, 1994. The Government action claimed violations of the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. § 1964 and the Employee Retirement Income Security Act of 1974, 29 U.S.C. § 1001 et seq  [*3]  .

The Consent Decree was designed to achieve the following purposes: (1) to end any direct or indirect involvement by the La Cosa Nostra in the MTDC and its constituent locals; and (2) to ensure that the District Council shall be maintained and run democratically, with integrity, solely for the benefit of its members, and without unlawful outside influence. Consent Decree at 4.

The Consent Decree empowers the Monitor to employ persons "necessary to assist in the proper discharge of the [Monitor's] duties." Id. P 6(a). The Consent Decree authorizes the Monitor to oversee the operations of the District Council and its constituent local unions, including the review of all proposed appointments to any office within a local. Id. P 4(b)(3). In addition, this Court has authorized the Monitor "to take any and all other actions that are consistent with his responsibilities under, and effectuate the purposes of, this Consent Decree." Id. P 4(b)(7). As stated above, one of the Consent Decree's purposes is to ensure that the union is "run democratically." See id. at 4.

This Court has held that the general grant of authority in paragraph 4(b)(7) of the Consent Decree authorizes  [*4]  the Monitor's involvement in the elections held at the locals, including the evaluation and disqualification of candidates for office. See Messana, 1997 WL 345036 at *5; Wasnofski, 1997 WL 340993 at *5. It follows that the Consent Decree provides the Monitor with the authority to retain an election officer to ensure that local elections are fair and democratic.

Pursuant to the Consent Decree, the Monitor appointed Daniel Clifton (the "Election officer") to serve as an election officer for the 1997 election of officers at, inter alia, Local 79. In the course of his service, the Election Officer issued rules for the election (the "Election Rules") and ruled upon a number of election protests, including five filed by DiNuzzo, three pre-election, and two post-election.

i. The First Protest

DiNuzzo's first protest, received by the Election Officer on April 19, 1997, complained that the incumbent officers of Local 79 used union resources to promote themselves by (1) listing their names and respective positions on three different pages in the March 1997 issue of the Local 79 newsletter, and (2) mailing out a summary plan description of the Local 79 Prepaid Legal Services  [*5]  Plan along with two copies of the same cover letter signed by three Union officers. DiNuzzo also protested that the Union had held separate meetings for Spanish speaking members without affording notice of such meetings to the general membership, thus depriving him and other candidates of a chance to campaign.

The Election Officer found that the repetitive listing of the Executive Board members in the Local 79 newsletter was not designed to promote their candidacies, but simply provided their names on the English, Spanish, and Italian versions of the newsletter, each of which were published in a separate section of the same issue. Because the Election Officer found a likelihood that only English speaking members read the English language section of the newsletter, while the Spanish section was read only by Spanish speakers, and the Italian section by Italian speakers, there was no violation of the Election Rules. However, to avoid any appearance of favoritism, the Election Officer required that future editions of the Local 79 newsletter contain no more than a single listing of officers.

The Election Officer also found that the mailing of a letter regarding the Legal Services Plan  [*6]  did not constitute an election violation, but had a legitimate purpose unrelated to campaigning.

Finally, the Election Officer found that the Spanish language meetings were not held in secret, but were announced on two different pages in the March 1997 newsletter, albeit in Spanish. Because any member could attend these meetings and campaign outside the meeting hall, the Election Officer found that the meeting and mode of announcing it did not violate the Election Rules.

ii. The Second Protest

In his second pre-election protest, DiNuzzo objected to the candidacy of Leonard L. Lewis, Sr., ("Lewis"), who was nominated for the position of Delegate to the District Council on the grounds that Lewis did not file a Candidate Questionnaire in time to qualify for the Local 79 elections, as required by Article I, Section 10 of the Election Rules. In an opinion dated May 23, 1997, the Election officer upheld this protest, and disallowed Lewis' candidacy.

iii. The Third Protest

In his third pre-election protest, DiNuzzo objected to the fact that ballots for the election were mailed on June 4, 1997 rather than June 5, 1997, as planned, and to the printing of the Local 79  [*7]  campaign newsletter in which his campaign literature was partially blacked out by a flag which he had intended to be lightly superimposed in color over the text, but which came out in solid black when scanned into the newsletter.

The Election Officer found that the mailing of ballots on the evening of June 4, 1997 rather than on June 5, 1997 was an administrative error by the American Arbitration Association, (the "AAA"), which was responsible for stuffing, sealing and mailing the ballots, was not attributable to Local 79 or any of the candidates, and was a harmless error.

As to the partial blacking-out of DiNuzzo's literature, the Election Officer found that the Local 79 Communications Director, Michael McGuire, ("McGuire"), had advised the candidates to submit "camera ready" material for the campaign newsletter, so that he would not have to edit, alter or create any of the candidate's submissions during the tight schedule for printing and mailing. While the Election Officer acknowledged that it would have been preferable for McGuire to contact DiNuzzo and obtain another copy of his literature without the superimposed flag, it was clear that his inability to do so as a result of  [*8]  the printing schedule was not a violation of the Election Rules.

iv. The Fourth Protest

In a fourth protest, filed post-election, DiNuzzo complained that two ballots were hand delivered to the AAA on June 26, 1997 by individuals other than the voters, and were counted on June 27, 1997. Pursuant to Article VII, Section 1(f) of the Election Rules, ballots were to be returned to the AAA by 5:00 pm on June 26, 1997.

The Election Officer found that the decision to count the two hand-delivered ballots was based on the fact that there was no rule restricting the means of delivery of a ballot, as long as there was no evidence that hand-delivered ballots had been "collected", i.e., that a group of ballots were delivered by one person. The two ballots in question were not so delivered, and counting them could not have possibly affected the outcome of the election. Thus, the election rules had not been violated.

v. The Fifth Protest

In his fifth protest, filed post-election, DiNuzzo complains that (1) the election should have been conducted by a walk-in vote rather than a mail ballot; (2) the Election Officer's decisions on two of his earlier protests were wrongly decided;  [*9]  and (3) there was a discrepancy in the number of ballots mailed to members by the AAA and the number that DiNuzzo was told would be mailed.

The Election Officer found that the decision to hold a mail ballot was made by the Local with the approval of the Election Officer in order to promote greater participation given the dispersed population of Local 79, and to diminish the potential for intimidation of voters. Moreover, the Election Officer ruled that the protest was untimely, since the decision to hold a mail ballot was announced in March 1997.

Because DiNuzzo did not submit any new evidence in connection with his earlier protests, the Election Officer did not revisit the prior decisions.

vi. The Instant Appeal

In a letter dated September 16, 1997, DiNuzzo requested that the Monitor review the Election Officer's rulings on DiNuzzo's protests, on the grounds that the decisions undermined the purpose of the consent decree and deprived him of a fair chance to contest the election.

The Monitor informed DiNuzzo in a letter dated September 25, 1997 that he had reviewed the Election Officer's decisions and did not believe they were erroneous, nor that they violated or undermined  [*10]  the Consent Decree. The Monitor concluded, "While I find no basis for reversing Mr. Clifton's decisions, I want you to know that I have admired your perseverance and sense of conviction."

On September 30, 1997, DiNuzzo wrote to this Court stating that he had received a decision from the Monitor which he wanted to appeal. At oral argument, DiNuzzo stated that he was appealing the Election Officer's decisions as regarded (1) his blurred campaign literature; (2) the early mailing of the ballots; (3) the separate meeting for Spanish local members; (4) the early mailing of the ballots on June 4, 1997; and (5) a denial of access to a luncheon held for retirees, a ground which was not the subject of his earlier protests. DiNuzzo did not articulate the grounds for his appeal, nor any new evidence as regarded the specific protests.
 
Discussion

A. Standard of Review

The Consent Decree provides that decisions of the Monitor shall be final and binding, subject only to this Court's review. Consent Decree P 4(g). In reviewing decisions of the Monitor, the Court shall apply the same standard applicable to review of final federal agency action under the Administrative Procedure  [*11]  Act, 5 U.S.C. § 701 et seq. (the "APA"). Id. P 4(g)(2).

Under section 10(e) of the APA, a reviewing court determines de novo "all relevant questions of law." 5 U.S.C. § 706; see also Lanza, 1997 WL 97836 at *6; United States v. District Council of New York City, 941 F. Supp. 349, 361 (S.D.N.Y. 1996). In considering a relevant question of law under the APA, "the reviewing court asks whether the agency's action was arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." District Council, 941 F. Supp. at 362; see also 5 U.S.C. § 706(2)(A).

An agency's findings of fact "are entitled to affirmance on review if they are reasonable and supported by substantial evidence in the record as a whole." District Council, supra (quoting NLRB v. Gordon, 792 F.2d 29, 32 (2d Cir. 1986)). The APA "permits agency findings to be set aside only if they are 'unsupported by substantial evidence.'" United States v. International Bhd. of Teamsters, 964 F.2d 1308, 1311 (2d Cir. 1992). Substantial evidence is more than a mere scintilla, id. at 1311-12, but "something less than the weight of the evidence, and the substantial evidence  [*12]  standard may be met despite the possibility of drawing two inconsistent conclusions from the evidence." United States v. International Bhd. of Teamsters, 19 F.3d 816 at 820 (citations omitted).

In sum, the scope of review is narrow, and the reviewing court must ensure only that the agency has examined the relevant data and articulated a satisfactory explanation for its action, including a rational connection between the facts found and the choice made. Motor Vehicle Mfrs. Ass'n. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 77 L. Ed. 2d 443, 103 S. Ct. 2856 (1983); accord Henley v. Food and Drug Admin., 77 F.3d 616, 620 (2d Cir. 1996); Lanza, 1997 WL 97836 at *7; RSR Corp. v. Browner, 924 F. Supp. 504, 510 (S.D.N.Y. 1996) aff'd 1997 U.S. App. LEXIS 5523, 1997 WL 134413 (2d Cir. March 26, 1997). The district court is not to substitute its own judgment for that of the agency. Henley, 77 F.3d at 620; RSR Corp., 924 F. Supp. at 510; see also United States v. International Bhd. of Teamsters, 981 F.2d 1362, 1368 (2d Cir. 1992) ("the district court must give 'great deference' to the decisions of the Independent Administrator") (quoting United States v. International Bhd. of  [*13]  Teamsters, 970 F.2d 1132, 1137 (2d Cir. 1992)).

B. The Monitor's Decision was Not Arbitrary or Capricious

The decisions of the Election Officer make evident that he carefully considered each one of DiNuzzo's allegations. Where appropriate, as in the protest regarding the failure of Lewis to submit a candidate questionnaire, the Election officer upheld DiNuzzo's protest and took action to remedy the flaw in the election process. Even where the Election officer did not find that the disputed action constituted an actual violation of Election Rules, as in the protest regarding the repeated listing of incumbent officers' names in the Local 79 newsletter, the Election officer took action to avoid even the appearance of unfairness or favoritism. In view of the Election Officer's thorough examination of the issues and efforts to address any potential compromise of the election process, the Monitor's conclusion that the Election officer's rulings are not erroneous or violative of the consent decree is amply supported by the decisions themselves.
 
Conclusion

For the reasons set forth above, the appeal by DiNuzzo is hereby denied.

It is so ordered.
 
New York,  [*14]  N. Y.
 
January 29, 1998

ROBERT W. SWEET

U.S.D.J.