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Perez v. Local

United States District Court, N.D. California, San Francisco Division

February 11, 2015

THOMAS E. PEREZ, Plaintiff,
v.
LIUNA LOCAL 261, Defendant.

ORDER ENFORCING SUBPOENA Re: ECF Nos. 1, 17

LAUREL BEELER, Magistrate Judge.

INTRODUCTION

This is a petition to enforce an administrative subpoena duces tecum under the Labor-Management Reporting and Disclosure Act ("LMRDA"), 29 U.S.C. § 521. (ECF No. 1.)[1] The court has subject-matter jurisdiction under 15 U.S.C. §§ 49, 50, 29 U.S.C. § 1331, and 29 U.S.C. § 1345. The Secretary of Labor issued the subpoena to respondent Local 261 of the Laborers International Union of North America ("LIUNA"). The subpoena seeks contact information for Local 261s members to aid the Secretarys investigation of the unions June 2014 election of officers. Citing the subpoenas possible effect on the First Amendment rights of the union and its members, Local 261 has refused to comply with the subpoena. For the reasons given below, the court enforces the subpoena to the degree indicated - a revision that reflects the governing law and incorporates the parties' proposed compromise positions. The court also holds that the LMRDAs statute of limitation (29 U.S.C. § 482(b)) is tolled until Local 261 complies with the subpoena.

STATEMENT

The subpoena at issue arises from the Secretarys investigation of a complaint about Local 261s June 2014 election of union officials. That complaint was made by a union member, Ignacio Castillo, who unsuccessfully challenged incumbent candidates to become a Local 261 official. Mr. Castillo made two grievances under the LMRDA. He first claimed that, by holding the election as a walk-in ballot at the unions San Francisco hall - and not providing for absentee balloting by mail - the union depressed voting by members living outside San Francisco, in Marin and San Mateo counties. He also charged that certain of Local 261s members, employees of the City and County of San Francisco, unlawfully used municipal vehicles to drive supporters of Local 261 incumbents to the polls.

Some background will aid the discussion. In 2012, the LIUNA locals that had previously represented Marin County and San Mateo County members (Local 291 in Marin, and Local 389 in San Mateo), merged into Local 261. (ECF No. 9 at 5-6.) Following this merger, the expanded Local 261 continued to use its San Francisco meeting hall as its headquarters. ( Id. at 6.) More to the present point, Local 261 claims that the Marin and San Mateo facilities of former Locals 291 and 389 were inadequate to the holding of elections. ( See ECF No. 9 at 6.) The Local 261 hall in San Francisco, by contrast, was sufficiently outfitted to host the balloting and is centrally located in the unions jurisdiction. (ECF No. 9 at 19.) It is also accessible from public transit. ( Id. ) According to Local 261, to reach the San Francisco hall and vote by walk-in ballot, former Local 389 members would have to travel an additional 19 miles from their former voting location; Local 291 members, an additional 22 miles from theirs. ( Id. at 7.)

The unsuccessful candidate, Mr. Castillo, at bottom complains that, by holding the ballot in San Francisco, members of the former Marin and San Mateo locals were discouraged from voting. The Secretary claims that 17% of the total union voted in the election. (ECF No. 15 at 7.) From the former Marin and San Mateo regions of Locals 291 and 389, however, the respective participation rates were 2% and 8%. ( Id. )

On November 21, 2014, in the course of investigating Mr. Castillos complaint, the Secretary issued Local 261 the subject subpoena. The subpoena directed Local 261 to produce: "Any and all contact information for all LIUNA Local 261 members who were active as of June 18-19, 2014, including, but not limited to: personal telephone numbers, street mailing addresses, and email addresses." (ECF No. 3 at 12.) The subpoena directed Local 261 to comply by November 21, 2014. ( Id. ) The Secretary sought this information, as "material and relevant to [the Departments] investigation, " to enable the Department "to locate and interview members to determine whether Local 261 violated or is violating the LMRDA in connection with the June 2014 officers' election." (Sorrento Decl. - Id. at 2-3, ¶ 6.)

Local 261 has refused to comply. Turning over its members' personal contact information, the union argues, is unnecessary to the Departments determining whether anyone was discouraged from voting by the increased distance to the San Francisco polling location. More fundamentally, Local 261 argues that the subpoena infringes upon the First Amendment speech and associational rights of the union and its members. ( See generally, ECF No. 9 at 11-24.)

The union has submitted two declarations to support its claim of First Amendment infringement. The first declaration is from its Business Manager, Mr. Ramón Hernandez. (Hernandez Decl. - ECF No. 12 at 1.) Mr. Hernandez is the incumbent who defeated Mr. Castillo in the challenged election. (ECF No. 9 at 7.) Mr. Hernandez asserts that complying with the subpoena would negatively impact the unions, and its members', First Amendment rights to free speech and free association. ( See generally ECF No. 12.)[2] He explains, for example, that workplace visits to union members from federal investigators are "very disruptive." ( Id. at 7, ¶¶ 35-36.) He continues:

Depending on the particular circumstances of each member, a visit from a government official can scare members and co-workers. Other members, non-members and potential members will always wonder what kind of trouble the member or the union is in if a federal investigator is interviewing him or her. Employers will also wonder why members are being visited by governmental agents.... This investigation has already resulted in our members becoming scared and suspicious of Local 261.

( Id. at 7, ¶ 36.) Further:

Local 261 has members who have served time in jail, are involved in whistleblower actions, including complaints to OSHA, are parties in pending actions among themselves, have pending Workers Compensation actions, pending personal injury actions, and other litigation, members who have immigration issues, or have friends or relatives who have immigration issues, have non-traditional family relationships, amongst many other concerns. Any investigation by a federal agent will raise serious concerns with our members, about themselves, their families, other Union members, and the Union itself. This will be particularly heightened if they believe that the Union gave their contact information to the federal government. Members will blame the Union for any contact by a federal agent. No matter how much explanation a federal government employee of the DOL would provide, rumors would spread as to who had done what wrong, who was not a lawful resident citizen, who may be involved with some unlawful activity, and so on.

( Id. at 8-9, ¶ 41.) Mr. Hernandez offers more in this vein, projecting the likely consequences of Local 261s complying with the subpoena, but this last ...


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