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Tuesday, October 3, 2017
DOL Case – Further Explanation & Background – LAA/LUS
DOL COURT DECISION
On Wednesday, September 27, 2017, the United States District Court for the Northern District of Texas issued a decision on the lawsuit the U.S. Department of Labor filed against APFA, challenging the 2016 National Officer elections based on its view that the electronic balloting (by internet and phone) system used in the 2016 National Officer elections did not satisfy the requirements of the Labor-Management Reporting and Disclosure Act (LMRDA), the federal law that governs union officer elections.
The Court agreed with the DOL’s positions and is requiring that APFA conduct new National Officer elections, under the DOL’s supervision. (Such supervision is always required when a court orders a re-run.) Although the Court declared the election results “void,” in accordance with the DOL’s longstanding interpretation of the LMRDA, the current National Officers will remain in office, with full authority to act, until the results of the new election are certified by the Court.
The DOL did not claim that there was wrongdoing by BallotPoint or anyone at APFA—the National Ballot Committee or the elected National Officers. Instead, the Court:
(1) relied on evidence that BallotPoint was forced to create under a DOL administrative subpoena, showing that theoretically an electronic connection could be made between a voter and his or her vote (hypothetically compromising the secrecy of a ballot), and
(2) concluded that the election was invalid because of non-compliance with the LMRDA’s observer requirement, rejecting APFA’s argument that the observer requirement should not apply in the context of electronic balloting where it is literally impossible to place an observer “inside the gears” of a computer to verify the accuracy of the vote count.
It is important to note that the elections were overturned despite the facts that:
- The DOL admitted that there was no evidence that anyone at BallotPoint or APFA actually connected a single vote to a voter.
- The DOL admitted there was no evidence of even an attempt to breach the secrecy of any ballot.
- The DOL admitted that there is no evidence that even a single vote was recorded incorrectly.
- The DOL admitted that there was no evidence that the votes were counted incorrectly in any of the National Officer elections.
- The DOL admitted that there was no evidence that the results of the National Officer elections were incorrect.
In addition to ordering a re-run election, the Court also awarded “court costs” to the DOL. However, “court costs” do NOT include any attorneys’ fees incurred by the DOL in pursuing the lawsuit. Rather, “court costs” include only filing-related fees and costs such as the $400 fee charged by the federal courts for filing a case and the costs of copying and printing briefs and appendices filed with the court.
The total “court costs” incurred by the DOL in this matter should be relatively minimal, and we believe that APFA’s insurance policy will fully cover those “court costs” in any event—just like they covered the lion’s share of the attorneys’ fees and costs incurred by APFA in its defense of the lawsuit.
To place this decision in context, in 2010, APFA began conducting elections electronically, using BallotPoint as the vendor. The switch from mail ballots enabled Flight Attendants to vote from anywhere in the world, at any hour of the day.
In 2013, a complaint was filed with the DOL by an unsuccessful candidate in a base election. The DOL found no merit to the various claims the individual raised, but noted a concern about the electronic balloting, which at that time provided that prior to the vote tally, APFA uploaded its membership list and voided votes cast by ineligible voters. (That procedure was changed before the 2016 National Officer elections.)
In its 2013 “findings” letter sent to both the challenger and the APFA National President, the DOL stated:
To the extent that APFA or BallotPoint could identify voters with their votes during or after the voting process, even if there is no evidence that voters actually were so identified or that any harm resulted, the APFA’s election process violated the ballot secrecy provision of . . . the LMRDA.
However, the letter went on to state that it could not initiate legal action because the challenger had not asserted this claim in the DOL complaint. The DOL’s letter was not shared with the Board of Directors, thus leaving APFA sitting on a ticking time bomb for future elections.
Again in 2015, similar election complaints, this time citing the ballot secrecy provision of the LMRDA, which had been provided to the challenger in the DOL’s 2013 “findings” letter, were filed in two additional base elections. Because the domestic and international operations were combined, neither election was for a full term and there was no DOL investigation.
On November 30, 2015, the APFA Board of Directors met via teleconference to decide whether to continue conducting elections through electronic balloting considering the settlement that had just been reached between the DOL and the Allied Pilots Association (APA). The APFA Board, not being aware of the DOL’s 2013 “findings” letter, voted to continue using electronic balloting.
The 2016 National Officer election was the next full-term election after the DOL’s 2013 “findings” letter stating APFA’s violation of the ballot secrecy provision of the LMRDA, triggering a sequence of events that has led us to where we are today. Regardless of who was elected in 2016, the situation and outcome would be the same.
On January 27, 2016, an election complaint was filed contesting the outcome of the 2016 National Vice President election, prior to the commencement of the new term which started on April 1, 2016. Throughout the DOL’s investigation, APFA proffered as a possible settlement to re-run the National Vice President election. This proffered settlement was not accepted by the DOL.
Despite its disappointment in the Court’s decision, APFA has no choice but to re-run the National Officer elections. APFA will be meeting with the DOL soon to work out the details, and more information will follow.