Hudson v. Am. Fed'n of Gov't Emps.
Hudson v. Am. Fed'n of Gov't Emps.
Opinion of the Court
For Plaintiff Eugene Hudson, former National Secretary-Treasurer for Defendant *149American Federation of Government Employees, the results of the 2016 federal election demanded immediate action. The following week, he directed an AFGE subordinate to send a blast email to hundreds of union members warning of a likely future attack on organized labor by President-Elect Trump and the new Republican-controlled Congress. Other members of AFGE leadership believed the email was inappropriate, a charge that culminated in Hudson's removal from elected office. Believing such process was infected with bias and seeking reinstatement, Plaintiff has sued and now moves for a preliminary injunction against the Union. Finding that all four injunctive factors weigh in his favor, the Court will grant the Motion and require AFGE to return Hudson to his office, at least until a full and fair hearing on his removal can take place.
I. Background
As the underlying facts are largely undisputed, the Court first sets forth the conduct that led to Hudson's ouster and then details the internal Union procedures followed here.
A. Factual History
AFGE is a national labor organization representing federal and D.C. government employees. See ECF No. 1 (Complaint), ¶ 2. Its leadership body, the National Executive Council, consists of a National President, National Secretary-Treasurer, National Vice-President for Women and Fair Practices, and the National Vice-Presidents for the twelve AFGE districts. Id., ¶ 3. Hudson was elected to two consecutive three-year terms as National Secretary-Treasurer beginning in 2012. Id., ¶ 6. Convention delegates will vote in 2018 on, among other offices, a National President and a National Secretary-Treasurer. Id., ¶ 7. In August 2016, Plaintiff announced that he would again be running for national office at the 2018 Convention but did not specify for which position. Id., ¶ 8. He clarified in December 2016 that he would run for President. Id.
On November 15, 2016-one week after the American presidential election-Plaintiff, using an AFGE computer and email, directed his subordinate to send an email to "several hundred AFGE officers and members." Id., ¶¶ 9, 11. The recipients included both personal and federal-government email addresses. Id., ¶ 11. The three-and-a-half-page email carried the subject line, "From the Desk of National Secretary-Treasurer Eugene Hudson, Jr.," Def. Opp., Exh. 3 at 1, and the body was entitled, "AFGE, the Trump administration, and the attack on the way." Compl., Exh. 1 at 1. It stated, in relevant part:
For many of us, the results of the November 8th election were unexpected. There remains much to analyze about the election ... [b]ut one thing is certain, the new administration and the Republican Congressional majority have a bull's eye planted on the backs of federal workers and the unions that represent them. The question is whether we are ready for this assault. ...
Is AFGE prepared for this? [AFGE] President Cox has spoken up on this and has reminded us all of some of the efforts that have been undertaken under the banner of "Too Big to Fail." Such efforts are important to support, though I will suggest that we need to completely rethink the battlefield terrain on which we have been operating. ...
The Trump administration, and their allies in Congress, will claim that they have a "mandate" to reconstruct the federal government and workforce. Our response should be "mandate my..." There is no mandate. Trump did not even get the majority of the popular vote!
*150Id. at 1-2. The email then lists four items for consideration: 1) "Recognize that we must fight; we have no choice"; 2) "Rethink the way that we operate as an organization"; 3) "We need to build our support within the larger community"; and 4) "[T]his is a time for AFGE to join with other unions operating in the federal sector in coordinated responses to the attacks." Id. at 2-3. No one reviewed the email prior to Hudson's distribution.
The next day, Hudson sent another email to a select group of AFGE members stating that the November 15 email was his "personal opinion" and was not "an official statement from AFGE." Def. Opp., Exh. 3 at 1. The email, however, had already attracted the attention of several Union officials, including President David Cox, NVP Gerald Swanke, and General Counsel David Borer. Cox was concerned that the email might constitute a "Hatch Act Violation and bring harm to AFGE and our members." Id. Swanke thought it "outrageous" that an AFGE policy statement would "be sent out to the membership without knowledge and consent of the [National Executive Council]." Id. On November 22, Borer sent a memorandum to Cox regarding legal issues surrounding the email. See Compl., Exh. 2. Of particular concern to Borer were possible legal implications under the Hatch Act, which prohibits federal employees from making partisan political statements using government resources or on government property. Although Hudson is not a federal employee, by sending the email to government addresses, Borer believed that those employees might unwittingly violate the Hatch Act by further disseminating the email. The memorandum also suggested that Hudson may have misappropriated Union resources by using its assets "(the email list, staff time, AFGE email, and AFGE equipment)," id. at 6, and exposed the Union to insurance liability because AFGE annually certifies to its insurance carrier that its General Counsel Office reviews all publications.
B. Procedural History
Nearly one month later, on December 21, 2016, National Vice-President Keith Hill filed an internal charge against Plaintiff pursuant to the AFGE National Constitution. See Compl., Exh. 3. Hill accused him of various infractions under the AFGE Constitution, including three violations of Article XXIII, which proscribes certain "conduct detrimental or inimical to the best interests" of the Union. See Compl., Exh. 4 (AFGE Constitution) at 63. The allegations included the post-election email. Hill did not serve Hudson with a copy of the charge as required by the constitution, but Borer sent it to him on February 22, 2017. See Compl., ¶¶ 15-17.
The charge proceedings then followed the relevant AFGE guidelines. See AFGE Const.; Compl., Exh. 6 (Committee of Investigation Guidelines and Procedures Manual). A Committee of Investigation was appointed, which was composed of NVP Swanke and two other members, Alma Lee and Gabrielle Martin. See Compl., ¶ 21. The Committee began its investigation and asked Plaintiff a series of questions. On July 3, Hudson submitted his written response and also asked that Swanke recuse himself; because Swanke had previously filed a charge against Hudson, Plaintiff doubted his impartiality. Id., ¶ 26. The Committee met the following week and decided that Swanke would need to recuse only if they could not reach a unanimous decision. Id., ¶ 28. The three members then considered the charges against Plaintiff and dismissed two of them. With regard to the third-sending the November 15 email-they stated:
The Committee finds probable cause exists for the specific charge of malfeasance of office. Article 23 Sec. 2(f)
*151Engaging in gross neglect of duty or conduct constituting misfeasance or malfeasance in office as an officer[.]
And
Article 23 Sec.[ ]2(g) Incompetence, negligence, or insubordination in the performance of official duties by officers or representatives of a local or council or failure or refusal to perform duties validly assigned
And
Article 23 Sec[.] 2(h) Committing any act of fraud, embezzlement, mismanagement, or appropriating to one's own use any money, property, or thing of value belonging to the Federation or any affiliate.
Compl., Exh. 10 (COI Findings) at 1. Because no material facts were in dispute, the Committee then referred the charge to the National Executive Council pursuant to Article XIII, Sec. 7(b)(2) of the Constitution. See AFGE Const. at 39-40. Cox promptly informed Hudson of the Committee's decision and called a special meeting of the fifteen-member NEC for August 8, 2017, to vote on the charges referred by the Committee. See Compl., Exh. 13 (July 19, 2017, Letter from Cox to NEC).
On July 28, Hudson submitted a position statement to be included in the investigative report distributed to NEC members. See Compl., Exh. 14. He acknowledged that he had directed his subordinate to send an email to government addresses of AFGE members but maintained his innocence of any wrongdoing. Hudson's statement to the NEC substantially mirrored his arguments in this suit. Namely, he contended that the email was not campaign literature or related to his candidacy, did not violate the Hatch Act or any AFGE policy, and was protected free speech under the Labor-Management Reporting and Disclosure Act. Id. at 6-15.
Plaintiff also requested that four additional NEC members-President Cox and National Vice-Presidents Everett Kelley, Eric Bunn, and George McCubbin-recuse themselves from participating in the deliberations based on his belief that they would not be impartial. Id. at 4. Because Hudson plans to run for President in the 2018 election, he asserted that Cox, should he choose to run for reelection, would be a direct competitor. As NST, Hudson also had alleged that expense vouchers submitted by Kelley, Bunn, and McCubbin were improper uses of Union funds. See Compl., ¶¶ 36-38. Finally, Plaintiff pressed another argument he maintains here: as the Committee found probable cause only for a charge of malfeasance, the NEC should have been limited to considering Article XXIII Sec. 2(f) of the Constitution, which covers that offense. See Position Statement at 5. Plaintiff attached several documents to his position statement, including three advisory opinions from the United States Office of Special Counsel, which is authorized to investigate Hatch Act violations, id. at 18-23, and several public articles and statements made by other AFGE members and officers. Id. at 23-71. None of these items directly pertained to Hudson's charges.
The NEC adopted the Committee's report, deliberated, and found Hudson guilty of the referred charges by a vote of 12 to 1 (Cox and Hudson did not vote). By the same margin, it then voted to remove him from his position as NST but did not restrict his union-membership rights. See Compl., ¶ 49. The NEC has not released a written explanation of the decision. Hudson timely appealed the ruling to the National Convention pursuant to the AFGE Constitution, but that does not take place until August 2018.
On September 12, 2017, Plaintiff then filed this suit, alleging four ways in which his discharge violated the LMRDA: 1) denial of a full and fair hearing; 2) retaliation *152for exercising his free-speech rights; 3) suppressing dissent through discipline; and 4) violations of the AFGE Constitution. Five days later, he filed this Motion for Preliminary Injunction, asking the Court to order Defendant to reinstate him as NST, process the charges anew, conduct a new hearing without the allegedly biased NEC members, and pay monetary damages. See ECF No. 4. The Court held a hearing on the Motion on October 26, 2017, and issues this Opinion on an expedited basis.
II. Legal Standard
"A preliminary injunction is an extraordinary remedy never awarded as of right." Winter v. NRDC,
Before the Supreme Court's decision in Winter, courts weighed these factors on a "sliding scale," allowing "an unusually strong showing on one of the factors" to overcome a weaker showing on another. Davis v. PGBC,
Regardless of the extent to which showings of irreparable harm and success on the merits can be diminished, some fundamentals of the four-factor test bear reiterating. Because "the basis of injunctive relief in the federal courts has always been irreparable harm," Chaplaincy of Full Gospel Churches v. England,
III. Analysis
Although Plaintiff brings four separate counts, because he requests the same *153relief on all of them, he need only satisfy the preliminary-injunction factors on one to prevail. Before delving into those factors, the Court considers-and rejects-Defendant's threshold position that Hudson's suit is neither ripe nor fully exhausted under the provisions of the LMRDA.
A. Ripeness/Exhaustion
AFGE asserts that the Court should not look at the merits here because Hudson has filed his suit prematurely. See Opp. at 7. In so arguing, Defendant relies on an LMRDA provision that prohibits unions from limiting their members' right to sue, provided "[t]hat any such member may be required to exhaust reasonable hearing procedures (but not to exceed a four-month lapse of time ) within such organization."
First, Hudson's internal Union appeal will not achieve a result until August 2018, nearly one year after his termination. To wait four months, as AFGE proposes, makes little sense as Hudson will know no more then than he does now. Because compliance with this waiting period would be futile, the Court will not hold Plaintiff to it. See Semancik v. United Mine Workers,
In any event, moreover, exhaustion is not mandated by the AFGE Constitution or the LMRDA before filing suit. Rather, the Act gives the "court ... discretion to decide whether" exhaustion of internal union procedures is appropriate. Clayton v. Int'l Union,
B. Likelihood of Success
In analyzing Hudson's Motion, the Court begins with his likelihood of success on the merits of at least one claim. See Winter,
*154The LMRDA contains a bill of rights for union members, including the right to a "full and fair hearing" before any discipline may be imposed. See
Hudson argues that his disciplinary process was not fair for several reasons, but the Court confines its discussion here to his accusation that the Committee of Investigation included a member-NVP Swanke-whose bias infected the entirety of the proceeding. Notably, likelihood of success on this issue does not require Plaintiff to show actual bias or prejudgment. See Goodman v. Laborers' Int'l Union of N. Am.,
Here, the Committee of Investigation included three people, with Swanke as the chair. After deliberating, those three decided whether to refer charges to the NEC, which only had thirteen voting members for this case. The Committee-and especially the chair-therefore had an immense amount of power over whether a member was ultimately disciplined. Indeed, AFGE never contends in its papers that the NEC's rendering of the final verdict somehow purges the taint of Committee bias.
Plaintiff introduces three pieces of evidence to show Swanke's bias: (1) a previous charge Swanke filed against him; (2) a tweet where Swanke accused him of financial impropriety; and (3) the August 8 NEC-meeting transcript. While not crystal-clear evidence of partiality, the first two show a sufficient likelihood of bias such that injunctive relief is warranted. (Defendant has filed a Motion to Strike the NEC transcript. See ECF No. 9. Because the Court does not rely on it, that Motion will be largely denied as moot. The Court will, however, accede to the Union's request to place the transcript under seal as it includes confidential deliberations.)
*155The instant contretemps is not the first between Swanke and Hudson. In 2015, Swanke and another AFGE member filed a charge against Plaintiff, alleging that he had acted in a way unbecoming a union member while at a local meeting. See Compl., Exh 8 (2016 COI Report) at 2. The Committee that investigated that charge ultimately recommended that it be dismissed as baseless but noted the "historical animosity between" the local councils (for which Swanke is the NVP) and Hudson. Second, Plaintiff attached to his Complaint a tweet written by Swanke accusing Hudson of being a "Master Grifter that can blow $800k overbudget [sic ] and accuse others of fiscal irresponsibility." Compl., Exh. 21. As AFGE noted at argument, this tweet was sent after the Committee investigation, but the Court finds it is still probative of bias. The Court also finds it telling that AFGE did not rebut any of Plaintiff's claims regarding Swanke's bias in its Opposition. Based on the undisputed evidence here, a reasonable jury would likely find that Swanke was biased against Hudson, precluding him from receiving a full and fair hearing.
In so concluding, the Court believes that the Committee's small size and Swanke's position are compelling factors. Having Swanke chair the three-member Committee-particularly in light of Hudson's request for recusal-created "circumstances that could create a significant risk of actual bias." Wildberger,
Courts have held that similar circumstances rendered a union's hearing process unfair and a violation of the LMRDA. See, e.g., Schonfeld v. Penza,
In sum, Hudson has a likelihood of success on his claim that retaining Swanke-someone who had previously filed charges against Hudson and later referred to him as a "Master Grifter"-"presented a 'significant danger of bias' " such that he did not receive a full and fair hearing.
C. Irreparable Harm
Plaintiff has also demonstrated a strong showing of irreparable harm in the absence of an injunction. Although the Motion requests economic relief as well, Plaintiff wisely, as he must, focuses on non-monetary harms-namely, that his removal deprives him (like all AFGE members) of the representative of his choice. See Mot. at 26 (quoting Sheet Metal Workers' Int'l Ass'n v. Lynn,
Congress enacted the LMRDA to preserve and promote union democratic processes. See United Steelworkers of America v. Sadlowski,
D. Balance of Equities
Harm to a plaintiff, however, is not the only injury to be considered in the preliminary-injunction equation. The Court must also assess whether an injunction would "substantially injure other interested parties," Chaplaincy of Full Gospel Churches v. England,
E. Public Interest
Finally, a preliminary injunction here serves the public interest. The provisions of the LMRDA at issue were born of a desire to "protect[ ] democratic elections and 'prevent, discourage and make unprofitable improper conduct by union officials.' " Solis v. Am. Fed'n of Gov't. Emps.,
IV. Conclusion
For the above reasons, the Court finds that a preliminary injunction restoring the status quo is appropriate here. AFGE must therefore reinstate Hudson to his position as National Secretary-Treasurer effective immediately. Whether or not the Union decides to proceed with a renewed hearing on NVP Hill's charges is up to AFGE. A separate Order consistent with this Opinion will be issued this day.
Reference
- Full Case Name
- Eugene HUDSON, Jr. v. AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
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- 7 cases
- Status
- Published