U.S. Department of Labor

U.S. Department of Labor

Administrative Review Board

200 Constitution Ave. NW

Washington, DC 20210-0001

IN THE MATTER OF:

TRACY SHANKER, CHIEF,

DIVISION OF ENFORCEMENT,

OFFICE OF LABOR MANAGEMENT

STANDARDS, UNITED STATES

DEPARTMENT OF LABOR,

ARB CASE NO. 2023-0001

ALJ CASE NO. 2021-SOC-00002

DATE: January 23, 2023

COMPLAINANT,

v.

PATENT OFFICE

PROFESSIONAL ASSOCIATION,

RESPONDENT.

Appearances:

For the Complainant:

Beverly Dankowitz, Esq., Eleanore I. Simms, Esq., and Christa N.

Henderson, Esq.; U.S. Department of Labor; Washington, District of

Columbia

For the Respondent:

Richard J. Hirn, Esq.; Patent Office Professional Association;

Washington, District of Columbia

Before: HARTHILL, Chief Administrative Appeals Judge, and BURRELL,

Administrative Appeals Judge

2

ORDER DENYING RESPONDENT’S MOTION FOR A TEMPORARY STAY

OF THE ADMINISTRATIVE REVIEW BOARD’S REMEDIAL ORDER

This case arises under Title VII of the Civil Service Reform Act of 1978

(CSRA),1 the Labor-Management Reporting and Disclosure Act (LMRDA),2 and the

Standards of Conduct (SOC) regulations issued pursuant to the CSRA.3 On January

5, 2023, Respondent Patent Office Professional Association (POPA) filed a Motion

for a Temporary Stay of the Administrative Review Board’s Remedial Order

(Motion). For the reasons set forth below, we deny POPA’s Motion.

BACKGROUND

POPA is a labor union that serves as the collective bargaining representative

of the professional employees of the United States Patent and Trademark Office.

POPA held its regular triennial election for union President (Election) and other

positions by mail ballot on November 13, 2020. Incumbent Kathleen Duda was reelected President over challengers Kurt Mueller and Razu Miah.

On December 28, 2020, Miah filed a complaint with the United States

Department of Labor’s (Department) Office of Labor Management Standards

(OLMS) alleging that POPA violated section 401(c) of the LMRDA4 by failing to

comply with Miah’s reasonable request to distribute campaign literature before the

Election. OLMS, in turn, filed a complaint with the Department’s Office of

Administrative Law Judges concerning Miah’s allegations on August 9, 2021.

On September 28, 2022, an Administrative Law Judge (ALJ) issued a

Recommended Decision and Order (R. D. & O.), determining that undisputed

evidence established that POPA, through its designated third-party printer, failed

to respond to Miah’s reasonable request to distribute campaign literature in

violation of LMRDA section 401(c), and that such violation may have affected the

outcome of the Election. Accordingly, the ALJ recommended that the Election

results be voided and that POPA be ordered to conduct a new election for President

under the supervision of OLMS.

POPA filed exceptions to the ALJ’s R. D. & O. with the Administrative

Review Board (ARB or the Board) on October 5, 2022. On November 16, 2022, the

Administrative Review Board (ARB or the Board) issued a Decision and Order

Affirming Recommended Decision and Order and Ordering New Election (D. & O.).

1

5 U.S.C. §§ 7101–7135.

2

29 U.S.C. §§ 401–531.

3

29 C.F.R. Part 458 (2022).

4

29 U.S.C. § 481(c).

3

The ARB agreed with the ALJ that the undisputed evidence established that POPA

violated the LMRDA by failing to respond to Miah’s reasonable request to distribute

campaign literature for the Election.5 The Board also determined that POPA’s

violation may have affected the Election’s outcome.6 Accordingly, the ARB declared

the Election void and ordered that POPA conduct a new election for the office of

President under OLMS’s supervision in accordance with the CSRA and SOC

regulations and, so far as lawful and practicable, in conformity with POPA’s bylaws

and constitution.7 The ARB directed the new, supervised election to be conducted by

March 16, 2023.8

On January 3, 2023, Respondent filed the Motion, requesting the Board stay

the remedy ordered in the D. & O. OLMS filed a brief in opposition (Opposition) to

Respondent’s Motion on January 13, 2023.

DISCUSSION

The SOC Regulations grant the Board the discretion to stay its orders for

remedial action.9 In its Motion, POPA asserts that it is scheduled to conduct its next

regular triennial election for several positions, including President, in November

2023. POPA requests the Board stay its order directing the union to conduct an

interim, remedial election until November 1, 2023, “so that the supervised election

that the Board has ordered will be conducted simultaneously with and as part of the

union’s prescheduled and mandatory triennial election.”10 We deny POPA’s request.

5

D. & O. at 9–17.

6

Id. at 17–21.

Id. at 21–22. As we explained in the D. & O., when a union is found to have violated

LMRDA section 401, the ARB, by delegation from the Secretary of Labor, has the discretion

under the CSRA and SOC regulations to order appropriate relief. 5 U.S.C. § 7120(d); 29

C.F.R. § 458.91(b). The LMRDA, incorporated into the SOC regulations, provides that if a

court finds a violation of section 401 that may have affected the outcome of an election, “the

court shall declare the election, if any, to be void and direct the conduct of a new election

under supervision of the Secretary and, so far as lawful and practicable, in conformity with

the constitution and bylaws of the labor organization.” 29 U.S.C. § 482(c); see also Chief,

Div. of Enf’t, Off. of Lab.-Mgmt. Standards, U.S. Dep’t of Lab. v. Local 12, Am. Fed’n of

Gov’t Emp., ARB Nos. 2013-0094, 2014-0081, ALJ No. 2013-SOC-00001, slip op. at 8 (ARB

Sept. 24, 2014) (stating that it is within the Board’s discretion to order the relief provided

by the LMRDA, and that this relief “seems to be an effective remedy by virtue of the statute

and case law interpreting the statute.”(citations omitted)).

7

Specifically, the D. & O. directed POPA to conduct the new election within 120 days

of the issuance of the Board’s order on November 16, 2022. Accordingly, POPA has until

March 16, 2023, to conduct the new election.

8

9

29 C.F.R. § 458.93.

10

Motion at 2.

4

POPA offers two justifications for its request to stay the interim, remedial

election. First, POPA summarily contends that “[s]uccessive elections so close

together would likely result in a drop-off in participation in the second election,

undermining the democratic objectives that the FSLMR Statute and the LMRDA

seek to promote.”11 As ordered, POPA must conduct its remedial election for

President by March 16, 2023, eight months before its next regular triennial election

in November. POPA offers no evidence to support its claim that it is likely to suffer

a drop-off in voter participation with a gap of this length between the elections. We

find POPA’s unsupported concern to be speculative and insufficient to justify

staying the remedial order.

Second, POPA contends that the purposes of the LMRDA would be better

served if OLMS supervises POPA’s regular election of a full slate of officers and

delegates, rather than just supervising an interim, remedial election solely for the

office of President. POPA asserts that the interim President would only serve for a

matter of months until the next regular election, and that OLMS’s assistance with

POPA’s regular election would “help ensure compliance and help insulate the next

election from protest.”12

We disagree with POPA that the purposes of the LMRDA and CSRA will be

better served by staying the remedial election for President until the next regular

election in November 2023, rather than having such election conducted promptly in

the interim. As we stated in the D. & O., the purpose of the LMRDA and the CSRA

is to ensure free and fair democratic elections and governance in labor

organizations.13 In light of “perceived abuses that plagued labor relations and

undermined public confidence in the labor movement,”14 Congress enacted the

LMRDA to “protect the rights of rank-and-file members to participate fully in the

operation of their union through processes of democratic self-government and,

though the election process, the keep the union leadership responsive to the

membership.”15 Likewise, the CSRA requires “the maintenance of democratic

procedures and practices including provisions for periodic elections to be conducted

subject to recognized safeguards and provisions defining and securing the right of

individual members to participate in the affairs of the organization [and] to receive

fair and equal treatment under the governing rules of the organization.”16

11

Id.

12

Id. at 3.

13

D. & O. at 7–8.

14

Morris v. Hoffa, 361 F.3d 177, 186 (3d Cir. 2004).

15

Wirtz v. Hotel, Motel & Club Emps. Union, Local 6, 391 U.S. 492, 497 (1968).

16

5 U.S.C. § 7120(a)(1).

5

In the circumstances of this case, we do not believe deferring the remedial

election would serve the purposes of guaranteeing, and promoting confidence in,

free, fair, and democratic elections and governance in labor organizations. Deferring

the remedial election would ensure the incumbent serves at least eight additional

months, constituting nearly one-fourth of the position’s full term.17 During this

period, the incumbent could further entrench in the position and would continue to

direct the union’s affairs under the cloud of the tainted election and LMRDA

violation.18 Delaying the remedial election also risks granting the incumbent the

inherent power, through the imprimatur of the office to which the incumbent may

not be entitled, to influence the next election, not only for the office of President, but

also for other offices and positions on the ballot.19

While it may be the case, as POPA suggests, that it could benefit from

OLMS’s supervision of its next regular election of a full slate of officers and

delegates, we do not believe that benefit sufficiently detracts from or outweighs the

need to promptly remedy the LMRDA violation.20 As OLMS suggests, to the extent

POPA believes OLMS’s assistance with the next regular election will help ensure

compliance and promote the purposes of the LMRDA, POPA may request such

assistance through OLMS’s Local Election Advisory Program.21

The timing here distinguishes this case from the decision of the Fifth Circuit Court

of Appeals in Donovan v. Local 10902, Communications Workers of America, 650 F.2d 799

(5th Cir. 1981), cited by POPA in its Motion. Motion at 2. In Local 10902, the union’s next

regular election was scheduled to take place from September to December 1981, just two to

five months after the Fifth Circuit issued its decision. See 650 F.2d at 802. Given this short

time horizon, the Fifth Circuit determined that the LMRDA’s requirement that a remedial

election be held would be satisfied by having the impending regular election supervised by

the Secretary of Labor. Id. In contrast to Local 10902, the next regular election here will

not occur until a year after the issuance of the D. & O., and eight months after the interim,

remedial election ordered by the Board. Cf. Chao v. Local 54, Hotel Emps. & Rest. Emps.

Int’l Union, 166 F. Supp. 2d 109, 125 (D.N.J. 2001) (distinguishing Local 10902, and

concluding that the union’s “next regularly scheduled election in June 2002, more than 8

months away, would [not] satisfy the express remedial provisions of the LMRDA.”).

17

See Hotel, Motel & Club Emps. Union, 391 U.S. at 503 (“Congress designed Title IV

[of the LMRDA] to curb the possibility of abuse by benevolent as well as malevolent

entrenched leaderships.”).

18

See Int’l Org. of Masters v. Brown, 498 U.S. 466, 476 (1991) (“The statutory

guarantees [of the LMRDA] are specifically designed to offset the inherent advantage over

potential rank and file challengers possessed by incumbent union leadership.” (internal

quotations and citation omitted)).

19

20

See Motion at 3.

See Complainant’s Opposition to Respondent’s Motion for a Temporary Stay of the

Administrative Review Board’s Remedial Order at 8.

21