Honorable Thomas S. Zilly

 

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

SEATTLE

 

EDGAR HANSON,

 

Plaintiff

pro se,

 

v.

 

ALEXIS HERMAN,

U.S. SECRETARY OF LABOR,

 

Defendant.

 

NO. C01-0071Z

 

PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION TO DISMISS

OR, IN THE ALTERNATIVE, FOR SUMMARY JUDGMENT

 

INTRODUCTION

 

Edgar Hanson should be the rightfully-elected business manager of Local 302 of the International Union of Operating Engineers (IUOE). Instead, he is burdened with this lawsuit because high-level bureaucrats at the United States Department of Labor (DOL) chose to cover-up the election misdeeds and unlawful conduct of the union incumbents as well as the fraud committed by the union's hired service providers. Meanwhile, Local 302 is left in control by the union's attorney, Russell J. Reid, and a few incumbents who discriminately pass power among themselves with no regard for federal labor law or for

 

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the union's bylaws.

 

Edgar Hanson's popularity with the general membership forced the union incumbents to engage in unlawful conduct prior to and during the election of 1999. In a novel scheme to keep Hanson out of office, the incumbents employed their own service providers to "rig" the election so that the incumbents could not lose. When the election was over, Hanson and his entire slate of candidates lost by a very thin margin.

 

Evidence recovered by a Hanson election observer became the "smoking gun" that DOL investigators needed to invalidate the election. But after months of investigation, the DOL ruled against Hanson.

 

A thorough examination of the evidence would have caused any reasoned, rational DOL official to conclude that the fraudulent conduct exercised by the incumbents and their hired election mercenaries affected the outcome of the election in favor of the incumbents. Hanson's evidence proves that (1) election fraud was committed, (2) the Labor-Management Reporting and Disclosure Act (LMRDA, or "the Act") was violated and (3) the union's own bylaws were broken.

 

The totality of evidence that Hanson presented to the DOL should have caused an election set aside with penalties levied against the violators. Hanson's "smoking gun" is a compelling case of fraud against the union. But first, Hanson will show that the DOL purposely covered-up the union's misdeeds.

 

The evidence taken from the hands of the DOL's own

 

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investigators shows a clear trail of fraud by the union. The decision by DOL officials to not prosecute Local 302 can only be interpreted as political chicanery and Department mischief.

 

It must be remembered that at the time of Hanson's complaint to the DOL (in early 2000) a presidential campaign was under way. It is not too speculative to assume that campaign contributions flowing from organized labor to the Democratic Party were a principle factor in the DOL's decision against Hanson. Taken one step further, it is not unimagineable that DOL officials in Washington, DC perceived that their own Clinton-appointed departmental positions would be more secure by not prosecuting and exposing unprincipled local labor leaders during a hotly contested presidential campaign.

 

Those DOL decision makers who determined Hanson's election fate have recently been replaced by individuals from the new Administration.

 

The loathsome behavior involved in playing partisan politics during presidential elections is not likely to begin or end with a case such as this. But when a rank-and-file member such as Hanson exercises his right to run for a union office, the DOL should enforce Title IV of the Act on an equal basis to ensure that a fair election is held. If a fair election is not held, the DOL has a duty to prosecute the violators and hold a new election. In this case, the DOL failed its duty to uphold Title IV.

 

If the DOL plays politics instead of policing against

 

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election fraud, then there is no incentive for the incumbents to observe the Act or follow the election bylaws. This assertion is exemplified by a 1996 injunctive suit against Local 302. In that case, a challenger sued the union prior to an election trying to force the union to place adequate election safeguards to ensure fairness. Union attorney Russell J. Reid objected and fiercely fought the suit, stating that the Court had no jurisdiction to intervene and promote election fairness.

 

As far as Hanson is concerned, if the Court won't intervene in the issue of promoting election fairness, then there is no reason for a challenger to even run against the incumbents. For that matter, why even go through the motions of holding an election? The outcome will always be pre-determined ~ decisively for the incumbents.

 

For all of the pain and suffering Hanson has had to endure to get his case before the Court, he remains undaunted by the odds against him. True unionism, like true democracy, is worth fighting for.

 

This briefing and the evidence from the administrative record should leave the Court convinced that the Secretary's motion for summary judgment should be denied and that Mr. Hanson should be afforded a new election plus damages.

 

HISTORICAL BACRGROUND (pre-1999)

 

In order to understand the turmoil embedded in Local 302's elections, it is important that the Court receive a briefing of factual events prior to the 1999 election.

 

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Local 302's roots were layed down in Seattle prior to World War II. It's mission was to supply labor to contractors, primarily in the form of heavy equipment operators. Today, the local is headquartered in Bothel, Washington and boasts a membership of over 9000. It has jurisdiction to dispatch labor within Western Washington and throughout the entire state of Alaska.

 

The union made huge gains in membership in the mid-1970's when labor contracts were signed with major oil companies to provide labor to Alaska's North Slope oilfields. Currently, Local 302's Pension Fund is in excess of over $2 billion.

 

After the local's election of 1985, the DOL set aside those results and conducted a re-run. The set aside arose from a challenger's complaint regarding the inappropriate use of office equipment to advance the incumbents's campaign. This illustrates the desire of the Reagan Administration to enforce LMRDA Title IV violations.

 

In 1988, Val Albert became the first member ever to ascend from the rank-and-file directly to the position of business manager. Albert immediately replaced Russell J. Reid as union counsel. Albert also terminated his predessesor's assistant, Michael Conlon. Conlon's father, Russell Conlon, a former business manager of Local 302 who had close ties to the International, was so incensed with his regime's loss of power that he openly stated he would avenge Val Albert.

 

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During Albert's tenure, a "poison pill" had been dropped by Conlon and members of the old regime. The old regime disrupted Albert at every conceivable opportunity, creating difficulty for Albert. After meeting with IUOE General President Frank Hanley, Albert agreed to an early special election. Hanley sent Ken Allen, a self-proclaimed number cruncher, out from Washington, DC to help run the election. Allen took over the election committee in 1990 and became the chairman. The bylaws specifically state that every election committee member must also be a member of the local. Allen was not a member of Local 302. Also, Albert's secretary saw Allen leave the office in a hurry one evening with a copy of the membership list. Federal labor law prohibits this activity.

 

Albert lost the election and filed a complaint with the DOL. The DOL investigated Albert's claim and dismissed the case. Meanwhile, the old regime had reclaimed power and the new business manager immediately rehired Russell J. Reid as union attorney.

 

In 1993, Albert again ran for business manager and lost. Edgar Hanson ran for Corresponding-Financial-Recording Secretary on Albert's slate. Albert and Hanson filed a complaint with the DOL. Federal investigator Donald Logedon promised a thorough investigation. Logedon also promised Albert that he would conduct a sample survey of the members to see if the sample reflected the actual votes cast for Albert in the election. Logedon told Albert this was a typical investigative

 

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technique used to detect election fraud. The survey was never conducted.

 

The Office of Labor-Management Standards (OL-MS) Seattle District Director, Suzanne Kirchner, informed Albert months later that the survey violated the constitutional rights of the members and thus would not be conducted. Albert pressed Kirchner for a deeper explanation because it contradicted Logedon's remarks. Kirchner's superviser, C. Russell Rock, Regional Director of OL-MS in San Francisco called Albert at his home and cursed him for pressing Kirchner. Then he quickly hung up. Kirchner was soon relocated to the Atlanta offices.

 

Albert and Hanson conducted an independent sample survey in 1994. The results of that survey showed much wider support for Albert than the 1993 election reflected. Albert and Hanson suspected that the incumbents had became involved in an elaborate election fraud conspiracy, involving the union's attorney, accountant and ballot printer.

 

After Albert and Hanson filed a timely election complaint with the DOL, the Department found that no violation of the Act had occured.

 

Albert and Hanson again campaigned for the same offices in 1996. In July, Albert filed a federal suit in Seattle to require adequate safeguards to ensure a fair election. The primary safeguard that Albert sought was to prevent David Clements from supervising the election. Albert asserted that Clements' continued dual role as Local 302's internal

 

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accountant/auditor and Election Supervisor created a conflict of interest and gave the appearance of being "too cozy" with the incumbents. Russell J. Reid's vehement opposition to the suit left Judge Carolyn Dimmick uncertain of her jurisdiction in the matter, resulting in case dismissal. Dave Clements supervised the election and Val Albert and Edgar Hanson lost again. All of the incumbents were re-elected.

 

Two weeks after the election, election committee chairman Barry Riedesel filed three charges against Val Albert. The charges were specious and Albert filed counter charges. Albert's charges were dismissed by the incumbents, but an incumbent-packed union trial found Albert guilty of the same activities conducted by the incumbents. Albert was fined and expelled from the union. He had served and paid dues for over 40-years. Albert's campaign manager, Galen Cook, was notified by mail on the trial date that his honorable withdrawal was cancelled. Cook had no opportunity to be heard and the charges were nonsensical and not based in fact or in law.

 

Five-months after the Albert trial, the business manager mysteriously resigned. Clyde Wilson, the presiding officer at the trial, who issued the order to expel Albert, was appointed as the new business manager. The appointment was made by the Executive Board, comprised of a handful of incumbent officers. Barry Riedesel was appointed as Vice-President of the union, along with the following positions --- Pension Fund Trustee, business agent, and later, editor

 

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of the union's newspaper.

 

During Albert’s and Cook’s civil suit against Local 302 and the incumbents, some startling facts were discovered. Barry Riedesel had used his position as election committee chairman to compromise the integrity of the election. The incumbents rewarded him for his misconduct. It was later proven, through both his deposition and telephone records, that Riedesel lied about his activities in the election conspiracy and the Albert trial.

 

It was also discovered that Chris Gianelli, the independent printer for Local 302, had made phone calls to union Trustee Allan Darr during the time Gianelli was printing the ballots. Records showed that it was the only time Gianelli had ever called Darr at his home. Gianelli, who had been recommended for hire by David Clements, had been printing election ballots and the union newspaper for over ten years. Gianelli also printed campaign materials for the incumbents.

 

In January 2001, Allen Darr was appointed business manager by a handful of incumbent officers. Darr had never previously served, or run for a line officer position. He had served as the union newspaper editor for about eight years. In his 1999 deposition, Darr stated that he wasn’t the editor.

 

Again Albert and Hanson filed a timely election complaint with the DOL. Again, the DOL found that no violation of the Act occured.

 

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FACTUAL BACKGROUND (1999 election)

 

In June 1999, Edgar Hanson became a bonafide candidate for business manager. He was the only challenger who faced Clyde Wilson for that office. It was Wilson's first election for business manager, even though he had been appointed to that position by the incumbent-controlled Executive Board.

 

Hanson put together a slate of candidates, which became known as "Team Hanson." The Team opposed the hiring of David Clements to supervise the election because Clement's dual role with the union posed a conflict of interest. Clements, attorney Russell J. Reid, and the union incumbents knew that having Clements as the election superviser posed much controversy. Nevertheless, Clyde Wilson hired Clements to run the election and Clements accepted.

 

Team Hanson also opposed the hiring of Chris Gianelli to print the ballots, but Clements recommended Gianelli and Gianelli was hired.

 

Hanson was well prepared with six trained election observers, including labor attorney Kevin Peck and Joann Carol. This was the first time in the union's history that the ballots were to be counted electronically. Clements made arrangements for the union to lease two Accu-Vote electronic ballot scanners from King County Election Division (KCED).

 

On election day, Clements determined that the ballots (printed by Gianelli) were too wide to fit properly through the scanners. He made a decision to trim the ballots so that

 

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a proper fit could be made. Edgar Hanson and his team objected to the trimming procedure. Hanson's attorney said that there was "chaos" in the room during the trimming and that ballots were constantly moved from one location to another.

 

Hanson's observers stated that Dave Clements and two members of the Election Committee, Don Webb (Chairman) and Pat McAllister, trimmed the ballots with paper cutters. Neither members had previously served on the Committee. Webb worked for the incumbents at the Training Center.

 

Clements said that the KCED told him to trim no more than 1/8 inch on the right side of the ballot. Clements also said that he was also told to trim no more than 40% off of the timing mark on the ballot, or it would not register a tally.

 

Reports vary of the number of trimmings made on the ballots. Some reports say that 1/3 of the total number of ballots were trimmed. Other reports say that some individual ballots were trimmed up to four times.

 

The exact number of ballots counted does not appear in the records of the union or of the DOL. However, at the end of the election day Clyde Wilson received 1759 votes and Edgar Hanson received 1591 ----a separation of 168 votes----the closest in Local 302's history. Barry Riedesel, in his first union election ever, won over his Team Hanson opponent by only 68 votes.

 

Hanson retained two ballot trimmings which were discarded by Clements.

 

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Clements discarded all of the other ballot trimmings. The union bylaws specifically require that all election records be retained by the union for no less than one year.

 

No member of Team Hanson won elective office. A11 members of the incumbents were re-elected, except one. An independent challenger won over incumbent President Mike Jonas. Jonas was the individual who received 11 phone calls at his home from Barry Riedesel during the 1996 election. All of those calls had been placed by Riedesel either during the election period, or just prior to the trial of Val Albert.

 

Hanson filed an election protest with the local's Executive Board. That Board is consisted entirely of re-elected incumbents. The protest was denied.

 

Hanson exhausted his internal remedies with the International. His protest claims were denied.

 

Hanson began his own investigation into election fraud and met privately with Julie Anne Kempf, Superintendent of KCED. Kempf examined the ballot strips. She said that one of the strips' timing marks was completely cut from the ballot. She further stated that the Accu-Vote scanner could not have tallied the ballot where the strip came from because 100% of the timing mark had been cut. Kempf recommends that no more than 25% of the timing mark be cut.

 

Hanson also conducted a telephone interview with Ian Piper, an engineer with the Texas-based manufacturer of Accu-Vote. Piper stated that the extensive trimmings of the

 

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ballot's timing marks should have caused "red flags" during the election. Piper further stated that any qualified operator of the scanner would know that a 100% trimming of the timing mark would result in a rejected ballot, as the scanner relies on the timing marks for an accurate scan and vote tally.

 

Hanson filed an election complaint with the DOL and provided a copy of the "Hanson Report" which documented his basis for the complaint. He also met with OL-MS District Director John Heaney on several ocassions. Heaney told Hanson to bring him the "smoking gun."

 

On February 23, 2000, Hanson met privately with Director John Heaney. Heaney was the top DOL investigator in Seattle. Hanson showed Heaney two of the actual strips that were trimmed from the ballots on election day. Heaney acted startled and pressed Hanson for all of the details regarding the strips. Heaney promised that an addendum would be forwarded to the Division of Enforcement at the DOL in Washington, DC.

 

On March 10, 2000, Lary F. Yud, Chief of the DOL's Division of Enforcement in Washington, DC, sent Hanson a letter denying an election set aside. Yud has since been replaced.

 

Hanson continued his own investigation and received records of the DOL investigation from an FOIA request. The DOL records clearly showed that remarks from the Kempf and Gianelli interviews contained obvious contradictions of fact. Other evidence did not square up and Hanson suspected a DOL coverup about the misdeeds of the incumbents.

 

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Hanson wrote an October 27, 2000 letter to Heaney requesting the DOL to re-open the investigation into election fraud. Heaney responded with a November 15, 2000 letter informing Hanson that his only remaining avenue to continue his pursuit against election fraud was to take legal action against the DOL.

 

On January 16, 2001, Hanson sued U.S. Labor Secretary Alexis Herman for a new election and damages.

 

ARGUMENT

 

1. Standards for Summary Judgment

 

The facts from the Secretary's own record speak for themselves. The genuine issue of material fact in this case is raised from the evident discrepancies and contradictions between the investigative record prepared by the Department and the Secretary's Statement of Reasons. The two records do not comport, thereby creating a huge burden for the Secretary to demonstrate that no genuine issue exists.

 

The moving party has the burden of demonstrating that there is no genuine issue of fact for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. at 257.

 

Hanson's evidence of election fraud is compelling and must be examined cumulatively with the existence of all the facts. Hanson has collected evidence in this case for over seven years. In determining whether there is an issue of material fact, the evidence must be viewed in light most

 

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favorable to the party opposing the motion for summary judgment. Matsuhita Electrical Industries Co., Ltd. v. Zenith Radio Corp., 475 U.S. at 587.

 

Hanson has requested relief from the Court based on the existing DOL record, which includes documents provided to the DOL by Hanson and later re-obtained by Hanson through a FOIA request. Pro se documents are to be liberally construed. Estelle v. Gamble, 429 U.S. 97, 106 (1976).

 

2. The Secretary's Decision was Arbitrary, Capricious and Contrary to Law

 

Hanson's only remaining avenue to terminate endless cycles of corruption and institutionalized election fraud at Local 302 is to seek remedial powers by the District Court. The Secretary asserts that this Court lacks subject matter jurisdiction under the LMRDA to force the Secretary to file suit to cause a re-run of the 1999 election. This assertion speaks to an earlier assertion raised when the union's attorney Russell J. Reid argued that the Court in 1996 had no jurisdiction to require safeguards to ensure that a fair election be conducted.

 

Of course the union didn't want a fair election with adequate safeguards. They would lose the election. Reid argued that only the DOL had jurisdiction to examine the safeguard issue after the election was held. That Court bowed to Reid and the result was more election fraud and more LMRDA violations

 

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that the DOL refused to prosecute.  |

 

Under the LMRDA, this Court does have subject matter jurisdiction to review the record as well as to take such action as it deems proper to preserve the assets of the labor organization. But does the Court have the authority to order the Secretary to sue the union for a new election? This becomes a question of remedial power, not a subject matter jurisdiction question.

 

If the facts support Edgar Hanson's allegation that the outcome of the election was affected by the incumbent's fraud and LMRDA violations, and the DOL did nothing to either prevent it from happening or prosecuting them after it did happen, then this Court must provide a remedy for Mr. Hanson.

 

A fair remedy would include the Court to order the Secretary to hold a new election with adequate safeguards to ensure fairness, or to pay Hanson for damages, or both. The basis for Hanson's claim is that election fraud and LMRDA violations affected the outcome of the election. If no remedy is afforded by the Court, then there is no incentive for incumbents of future elections to observe Title IV of the Act. There is no longer an incentive for the incumbents to ever hold fair, honest elections because there appears to be no punishment for cheating or violating the LMRDA.

 

Bachowski, 421 U.S. 560 (1975), becomes the controlling case for this issue. In Bachowski, the U.S. Supreme Court said that the Secretary's decision not to sue the union for a new

 

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election was so irrational as to constitute being arbitrary and capricious and otherwise contrary to law. In issuing its opinion, the Supreme Court remanded the case back to the District Court, which also said that the Secretary's decision was irrational. Quoting from the plaintiff's counsel,

 

"...safeguards are for the benefit of the challenger and the absense of ...safeguards can only benefit the incumbent who controls the machinery of the union and can affect votes ..."

 

The District Court ordered that the Supplemental Statement of Reasons by the Secretary of Labor, without more, evinced his decision as so irrational as to be arbitrary and capricious. The Court ordered appropriate further proceedings. (See Bachowski v. Dunlop, D.C. 413 F.Supp. 147 (Penn) 1976.

 

The essence of Bachowski, in the view of the Secretary, is that the Secretary's discretion for making a decision cannot be reviewed. But the proper manner for the Court to view the Bachowski case is to determine whether the Secretary's decision is rational. The Court cannot make an accurate conclusion of whether the Secretary's decision was rational by restricting the test to the Secretary's Statement of Reasons. The Statement is crafted in the way the Secretary wants it done, with no regard as to whether the Secretary's conclusion was rationally based. The Statement is too conclusory without affording the Court an opportunity to examine the entire record to determine if the facts square-up with the conclusion. To restrict the record is to restrict the Court's ability to make a reasoned decision.

 

The test of the Statement of Reasons should not be

 

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determined on how the report is written, or as to whether the author of the Statement can comport the facts to fit his own purpose. The test of the Statement should be on how rationally the Statement holds together when evidence from the record is examined. If the Statement contradicts the evidence from the record, the Statement must be deemed irrational and subject to a remedy the Court requires through its own discretion.

 

The Court's function is to determine if the conclusion from the Statement is arbitrary and capricious. The conclusion must be based on facts which are contained in the record. If the facts do not square-up and the Statement derives a decision that is contrary to the facts, then the Court may rule that the Statement is irrational, and thus, arbitrary and capricious. The Court can not make a reasoned determination based solely on a mere Statement provided by the Secretary. The record must be examined.

 

Finally, the Court may extend its review of the record based on the very rare case exception in which the Secretary acted plainly beyond the bounds, or, in clear defiance of the LMRDA. Dunlop v. Bachowski, 421 U.S. at 572-73. The rare exception case provides the Court with latitude to examine the record and determine whether the Secretary's decision was rational.

 

Implicit in Hanson's complaint is the Court's discretionary use of whether a rare circumstance exists. Considering that Hanson holds a "smoking gun" that was

 

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not properly addressed by the Secretary, and that the Secretary Statement does not square-up with facts from the reports taken by DOL investigators, court must view this case as a rare exception. Additionally, Hanson's long history of attempting to clean up elections at Local 302 makes this a rare circumstance worthy of the Court's review.

 

3. The Evidence

 

a. BALLOT TAMPERING

 

If it looks like fraud, acts like fraud, and smells like fraud, its got to be ……… FRAUD.

 

The incumbents needed the services of David Clements and Chris Gianelli to assist them in a fraudulent scheme to affect the outcome of the election. What better arrangement exists? The union accountant/auditor has been conducting internal audits and elections for Local 302 for three decades. The printer has been making the ballots and all election materials, as well as printing the union newspaper and printing campaign brochures for the incumbents for at least a decade.

 

Clements knew that he was surrounded by controversy regarding Local 302's elections. As a CPA in the Seattle community, he should have declined an offer to bid on supervising the 1999 election. Also, Clements' professional training should have provided him with the sense to not serve as the Election Supervisor. His dual role as union accountant and Superviser is an obvious conflict of interest. But apparently, Clements

 

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couldn't wait to supervise the 1999 election. And the incumbents couldn't wait to have him.

 

Incumbent business manager Clyde Wilson accepted three independent bids by qualified persons to supervise the election and Clements was the high bidder. Nevertheless, Wilson hired Clements citing Clements for his "experience." Now there are two conflicts. Clements and Wilson: the incumbent hiring the Election Superviser, who accounts for the business manager's use of funds at Local 302.

 

David Clements recommended Chris Gianelli of Service Printing to print the ballots and election materials. The union incumbents heeded Clement's advice and hired Gianelli.

 

A standard one-page ballot was printed after Gianelli consulted by telephone with the KCED. The ballot had to meet very specific dimensional parameters in order to be scanned properly by the KCED's Accu-Vote scanner. The ballot required that timing marks be printed along the border of each ballot so that the scanner could accurately tally the votes. (see Exhibit A annexed under Declaration of Edgar Hanson).

 

Gianelli purposely printed a ballot that was too wide for the scanner. (see Exhibit C, 1/31/00 Interview of Gianelli).

 

On election day, the ballots needed to be trimmed to fit through the scanner. All of Hanson's observers objected to the trimming. Wilson had no obervers and needed none. His people were running the entire election. There was "chaos" in the election room.

 

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(see Exhibits G, K, L, M).

 

David Clements decided to trim the ballots so that they would fit into the scanner. (see Exhibit H). The KCED recommended trimming only a very small portion off of the ballot. They also told Clements not to trim more than 25% off of any of the timing marks, or the ballot would not be scanned for an accurate vote tally. (see Exhibit D, Interview of Julie Anne Kempf).

 

Hanson observers noticed that there was no uniformity to the ballot trimming procedures. Some ballots were trimmed in such a manner as to eliminate the entire timing mark, thereby rendering the ballot unscanable. The unscanned ballot resulted in no tally and the ballot would fall to the bottom of the AccuVote to be counted by hand at a later time. Other ballots were trimmed narrowly, where enough of the timing mark remained to render an accurate scan and tally. (see Exhibit B, evidence recovered by Hanson observers and referred to later as the "smoking gun").

 

Clements was in a position to see the face of the ballots before he trimmed them, and therefore which candidate received a vote. (see Exhibit A). (note: the seat of business manager is arguably the only seat that matters in the race because the business manager has the power to place or unplace every other officer from the payroll, as well as hire or fire the service providers).

 

Clements claimed that the over-trimmed ballots that

 

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couldn't be properly scanned were later hand counted. But this explanation defeats Clement's earlier statements that the electronic election would eliminate the need for hand counting. Another question persists: when Clements contracted for the electronic scanners from KCED, why did he have his own hand counters on standby to manually count if he didn't have previously knowledge that the ballots were too large and needed to be trimmed on election day?

 

Perhaps the most compelling evidence to prove election fraud (besides the "smoking gun") is the apparent lies of Chris Gianelli. According to the DOL's own documents, Chris Gianelli provided the following statements to investigators on 1/31/00:

 

"Miller (KCED) approved Gianelli's sample ballot. The county typeset the ballots." (see Exhibit C).

 

But a DOL interview of KCED Superintendent Julie Anne Kempf on 2/7/00 contradicts Gianelli. Kempf stated:

 

"Miller (KCED) had only one brief telephone conversation with Gianelli regarding the ballot layout. The KCED did not receive a copy of the ballot from Gianelli. The KCED did not approve or test the union's ballot in any way after it was printed. Gianelli did not provide the ballot printing plates or negatives to the KCED." (see Exhibit D).

 

Julie Anne Kempf is a respected individual who is the Superintendent for all of King County's elections. She has no interest in the outcomes of Local 302's elections and she has no reason to lie to DOL investigators. Chris Gianelli has proven himself in the past to be a person not to be trusted.

 

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His motivation to lie is for economic rewards by union incumbents.

 

The DOL investigators must have thought something was wrong with the initial Gianelli interview because they reinterviewed him on March 15, 2000 when he stated:

 

"The two (KCED) worked back and forth on the phone checking candidate names and their spellings. He (Gianelli) printed several sample ballots and sent them to Miller (KCED). Miller tested them on the counting machine. Miller approved the sample ballot."

 

According to Kempf, Gianelli's statements are false.

 

When Hanson saw copies of the interviews and the apparent discrepancies and contradictions, he wrote to DOL investigator Heaney and showed him the evidence. (see Exhibit Q). The DOL took no action, but told Hanson he could sue the Secretary of Labor.

 

1999 wasn't the first time Chris Gianelli was caught up in election mischief. In 1996, at the very time Gianelli was printing the ballots for that year's election, he was making private phone calls to an incumbent officer at the officer's home. (see Exhibit F). That officer was Allan Darr who was actively campaigning for Trustee. There are no phone records of other calls placed to Darr by Gianelli. This behavior is suggestive of ballot tampering mischief. Today, Darr is the business manager of Local 302. He was appointed by the Executive Board to replace Clyde Wilson, who mysteriously resigned from his position. When Gianelli was shown a copy of his phone records, he immediately hired an attorney.

 

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When examined cumulatively, a picture begins to emerge that Chris Gianelli was hired to knowingly play a role in election fraud. His role, and David Clement's role was to work together to "rig" an election process that would affect the outcome of the election in favor of the incumbents. Then, Gianelli and Clements could continue to receive employment contracts through the union.

 

b. BYLAW VIOLATION

 

Section 4 of Article XIV "Elections" of the bylaws of Local 302 provides:

 

"All election records, including but not limited to the ballots cast and all challenges and challenged ballots and the certificate of the certified public accountant, shall be preserved by the Recording-Corresponding-Financial Secretary for a period of at least one year."

(see Exhibit I, bylaws).

 

As Election Superviser who supervised 11 previous elections for Local 302, David Clements knew not to discard the election records for at least one year. The trimmed ballot strips legally constitute a portion of the election records, including but not limited to the ballots cast, or in this instance, a portion thereof. Yet, Clements personally admits that the trimmed ballot strips were thrown away immediately after the votes were tallied. (see Exhibit H, Interview of David Clements).

 

Recording-Corresponding-Financial Secretary Jack Jackubiec was officially responsible for preserving the ballots

 

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and the ballot trimmings for a period of one year. Jackubiec suddenly and mysteriously resigned three months after being re-elected to his post in 1999.

 

The election bylaws were violated, presumably to destroy evidence.

 

Edgar Hanson has the only remaining strips from the ballot trimmings of the 1999 election (see Exhibit B).

 

When the union incumbents learned that some ballot strips were in Hanson's possession, they argued to the DOL that the strips were out of scope in the investigation because that topic wasn't previously raised by Hanson. The DOL ruled that the strips were in scope, presumably because they were detailed in the "Hanson Report."

 

Finally, the DOL investigators examined the portion of the ballots that were retained by the union incumbents. The examination occured in January 2000, five months after the election. This period provided the union incumbents with plenty of time to neatly alter ballot records to reflect their own version of an official tally on election day. The ballots were always in physical possession and control by the incumbents.

 

c. INCUMBENT'S MISCONDUCT

 

When Hanson presented the "Hanson Report" to DOL investigators, he included evidence to show of the misconduct by the incumbents and the 1996 Election Committee Chairman. This demonstrated a tendency by the incumbents to continue their

 

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LMRDA and bylaw violations. (see Exhibit U, a "timeline of Election Chairman Barry Riedesel's outgoing calls placed to incumbent officers during the election). DOL investigator Donald Logedon stated that the phone record evidence involved "a damn good bit of investigative effort on behalf of Hanson."

 

Also, union newspaper editor Allan Darr violated the LMRDA in 1996 when he published an edition just prior to the election. The incumbents were heavily featured in the paper, but no mention was made of any challenger. (see exhibit T). -This is a vital safeguard violation. Hodgaon v. Liquor Salesman's Union, 444 F.2d 1344 (2nd Cir. 1971). Strangely, the DOL denied that a violation occured.

 

Today, Darr is the business manager. He never ran for this position, nor was he elected to it. He was appointed by other incumbents in an emergency effort to buoy Local 302 when evidence demonstrated that a vast network of corruption existed within the local. The incumbents knew that the pressure was on them.

 

Sudden resignations of incumbents also provide additional suspicion. Incumbent business manager Larry Johnson resigned in 1997, eight months after winning the 1996 election. Incumbent Secretary Jack Jacubiec resigned after three months into his new term in the 1999 election. Incumbent business manager Clyde Wilson resigned after 15 months into the 1999 election in which he beat Edgar Hanson. Incumbent Vice-president Ron Knight resigned after a few months from his re-election

 

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in 1996. And incumbent Secretary Charlie Barton resigned after three months into his re-elected term in 1993.

 

A very strange but discernable pattern begins to emerge. Many incumbents stick around only long enough to get re-elected, then they mysteriously resign. The incumbent controlled Executive Board appoints new persons into positions of power. But amazingly, the DOL officials in Washington, DC see nothing wrong with the manner in which this union conducts its internal affairs.

 

CONCLUSION

 

Edgar Hanson has been harmed, as both a bonafide candidate for union office, and as a member of the rank-and-file. He never asked for, nor sought anything more than a fair, honest union election with adequate safeguards to ensure fairness. He received none of the above.

 

Hanson's evidence and the evidence from the DOL's own investigative file tell a story of vast corruption within Local 302. When the evidence is examined cumulatively, there can be no rational conclusion other than the Secretary acted arbitrarily and capriciously and otherwise contrary to law when she dismissed Hanson's complaint and stated that no violations occured. In the wake of the evidence, the Secretary's decision not to prosecute is irrational. The Secretary's conclusion from her Statement of Reasons does not square up with the facts presented by her own investigators in Seattle. The Statement

 

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of Reasons is so irrational as to be deemed arbitrary and capricious.

 

Hanson believes that this is not the time for the government to be playing partisan politics in the U.S. Department of Labor. Rather, this is the time to clamp down on corrupt union activities. Hanson's case opens the door for the new Secretary to conduct a criminal investigation into Local 302 activities. Hopefully, this Court has the courage to help open that door and begin a new chapter for Local 302.

 

Finally, Hanson hopes that the Court will use some reasonable and rational discretion to cause a new election for Hanson and the members of Local 302. They deserve it.

 

The harm inflicted on Hanson by the incumbents, and by the DOL for not prosecuting the incumbents, has taken its toll on him. But Hanson can be made whole with a new election and damages awarded to him for all of the pain and suffering he has had to endure.

 

DATED this 16 day of November, 2001.

Respectfully submitted,

 

 

S/Edgar Hanson

Edgar Hanson, plaintiff

 

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