IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF HAWAII OLIVER H. KUPAU, vs. Petitioner, UNITED STATES DEPARTMENT OF LABOR, Respondent. CIVIL NO. CV08-00296 SOM LEK MEMORANDUM IN SUPPORT OF LOCAL 368 AND LIUNA S MOTION FOR PRELIMINARY INJUNCTION MEMORANDUM IN SUPPORT OF LOCAL 368 AND LIUNA S MOTION FOR PRELIMINARY INJUNCTION I. INTRODUCTION AND FACTUAL STATEMENT LOCAL 368 and LIUNA submit this memorandum in support of their Motion for Preliminary Injunction seeking the re-employment of Oliver Kupau as a Local 368 field representative, pending the Court s decision on the Application. Application for Exemption from Disqualification [29 U.S.C. 504], Or Alternatively Request for Declaratory Relief, filed on June 23, 2008. LOCAL 368 is currently operating under a trusteeship imposed by LIUNA in January of 2007, pursuant to the LIUNA Constitution and Bylaws. Declaration of Kenneth Casarez in Support of Local 368 and LIUNA S Motion for Leave to Intervene and for Preliminary Injunction 1
( Decl.Casarez 3; Application Ex. F. Oliver Kupau, with his local experience and knowledge, has been critical in the Trusteeship s efforts to correct the problems that led to the suspension of Local 368 s autonomy. (Decl. Casarez 6-8. LIUNA had hoped to restore autonomy within the 18 month period of presumptive validity set forth in 29 U.S.C. 464(c once new officers were elected by the Local s membership. 1 (Decl. Casarez 8. The Department of Labor s ( DOL recent declaration that Oliver Kupau, the Trusteeship s most experienced and senior field representative 2 cannot be employed creates a void that will negatively impact the Trustees ability to restore autonomy. The DOL s position was unexpected since the government appeared fully aware in 2002 that Oliver Kupau intended to continue working for Local 368 following his guilty plea. (Application 7; Exhibits B, D. Local 368 and LIUNA had also been operating under the good faith belief that Oliver Kupau s employment as a field representative was permitted because money-laundering was not a disqualifying offense under 504(a, based on the 2002 and 2007 opinions 1 29 U.S.C. 462 allows an international union to impose a trusteeship on a subordinate body, in accordance with its own constitution and by-laws, for the purpose of correcting corruption or financial malpractice, assuring the performance of collective bargaining agreements or other duties of a bargaining representative, restoring democratic procedures, or otherwise carrying out the legitimate objects of such labor organization. 2 The Local 368 Constitution refers to the position as field representatives but often the position is informally called that of business representative or field agent. Decl. Casarez, 4. 2
of specially retained legal counsel, David Elbaor of Washington, D.C. (See Exhibits A and B to Decl. Casarez. On June 16, 2008, the DOL threatened criminal prosecution against the Trusteeship if it continued to employ Oliver Kupau in any capacity. (Decl. Casarez, Ex. E. Accordingly, the Trustees terminated Oliver Kupau s employment effective June 17, 2008. (Decl. Casarez, 14. Since Oliver Kupau s termination, no one has been able to step in and competently take over much of the work that he performed on a daily basis, from jurisdictional monitoring to field representative training. (Decl. Casarez, 15. The Trusteeship has been unable to hire anyone as experienced and qualified to perform these duties. (Decl. Casarez, 11. Its efforts to restore democratic control and autonomy to Local 368 before the 18 month deadline (July 29, 2008 will be jeopardized unless Oliver Kupau is allowed to return to work. (Decl. Casarez, 9-11. Of even greater concern is the fact that Oliver is the only field representative familiar enough with the Hawaii contractors and the unique island job classifications to protect the Local s jurisdiction, which ultimately translates into whether or not members work. (Decl. Casarez, 9. Thus, Oliver Kupau s continued employment with the Trusteeship is in the direct interest and benefit of the 5400 members of Local 368. (Decl. Casarez, 15. 3
For the reasons set forth herein and as detailed in Deputy Trustee Casarez s declaration, Intervenors ask that the court grant a preliminary injunction ordering the immediate re-employment of Oliver Kupau as a field representative, pending resolution of his Application. II. DISCUSSION A. The Court Should Grant A Preliminary Injunction Allowing Oliver Kupau to Be Employed As Field Representative 1. Standard for Preliminary Injunction Local 368 and LIUNA, as Intervenors, must demonstrate to the Court either their probability of success on the merits and irreparable injury; or that they raise sufficiently serious questions going to the merits with the balance of hardships favoring Intervenors. Nelson v. National Aeronautics and Space Admin., 512 F.3d 1134 (9 th Cir. 2008. These two prongs are not separate tests but rather extremes of a single continuum, so the greater the relative hardship to [the party seeking the preliminary injunction], the less probability of success must be shown. Id., citing Walczak v. EPL Prolong, Inc., 198 F.3d 725, 731 (9 th Cir. 1999. 2. The Members of Local 368 Will Suffer Irreparable Harm in the Absence of Injunctive Relief The Claudio decision is compelling guidance here. Both Claudio and this case present the situation where a particular field or business 4
representative, with unique skills, has ended up so indispensable that the union would be lost without him. It is of significance that Claudio also involved a trusteeship and the efforts of an international union to restore democratic control and autonomy. Local unions only end up in trusteeship where there are serious problems in the democratic functioning of the union. 29 U.S.C. 462. Due to the removal of the local s officers, and the asserted authority of the appointed trustees, it is not unusual for a local union placed under trusteeship to be in turmoil both at the start and throughout most of the trusteeship. Claudio, 137 F. Supp 2d. at 411. Just as in Claudio, Local 368 would hard-pressed to find someone with comparable skills and experience and Oliver s loss as a field representative only contributes to the turmoil. Id., (Decl. Casarez 9, 15. The harm that members will suffer if Oliver Kupau is not re-employed is tangible. As Deputy Trustee Casarez s Declaration explains, one of Oliver Kupau s daily duties was to visit job sites and make sure that Local 368 members were employed in their proper classifications. ( 8-9. In addition, Oliver Kupau checks that members of other unions or non-union employees are not performing what is covered work under the Local 368 collective bargaining agreement. This is no easy task and requires not only a solid understanding of all the job classifications and the nature of the work 5
involved, but the history of the classifications and any competing union s claims to the work. Local 368 and LIUNA try at all costs to avoid the dissension and negative in-fighting that occurs when unions compete for the same work, an unfortunate inevitability as the economy suffers a downturn. A skilled field representative, like Oliver Kupau, can prevent jurisdictional work disputes by clarifying with contractors from the start what is Local 368 work and claiming it without equivocation. In the end, this translates into the difference between working and sitting on the bench. Oliver Kupau was also the most experienced field representative on the Trusteeship s staff. He has been instrumental in the training of the new field representatives and in the training of shop stewards. (Decl. Casarez 8. Without his experience and expertise in these areas, the interests of the membership will suffer as their rights under the various contracts may not be properly protected. 3. Oliver Kupau Has Been Rehabilitated As detailed in Casarez s Declaration and will be shown through Deputy Trustee s testimony, Oliver Kupau has worked as a dedicated business representative for the Trusteeship. Not once during the Trusteeship has he used the authority of his position for personal gain. (Decl. Casarez 10. 6
Local 368 and LIUNA will be able to demonstrate a likelihood of success on the merits, i.e., that Oliver Kupau s hard-work and dedication to the union demonstrate without a doubt that he has been rehabilitated and therefore should be granted the exemption sought by his Application. 4. Issuance of a Preliminary Injunction Will Not Substantially Injure Any Party Interested In This Proceeding The position of Local 368 field representative is not one that involves the finances of the local. (Decl. Casarez 12-13. If this Court were to allow Oliver Kupau to resume his employment, neither the government nor the membership will suffer any injury or harm. In Claudio, supra, the federal district court was confronted with a similar request to allow the employment of a business representative, who had been convicted of robbery in the third degree approximately 8 years earlier, pending his 504(a application. The court allowed it because the judge was: confident that this is not a position in which Claudio could place the Union in danger, in the sense contemplated by 5J1.1 of the [U.S. Sentencing] Guidelines. A business agent usually does not have access to the Union s treasury; to the contrary, a business agent is in the field, meeting with members and representing them in grievances and in other dealings with the employer. As a business agent, Claudio can only help the Union, not endanger it. Id. at 411. Similar to Oliver Kupau s money-laundering, Claudio s crime of robbery was committed in a context wholly unrelated to any activities or 7
business of the union. Deputy Trustee Casarez s Declaration demonstrates how Oliver Kupau has done an exemplary job for Local 368 and has been instrumental in assisting the Trusteeship in regaining the trust of not only the members, but the signatory contractors. Accordingly, Local 368 and LIUNA do not believe that the membership, the DOL, or any other party will be harmed by Oliver s re-employment as a field representative. 5. Public Interest Compels Injunctive Relief Local 368 is a large local union, with over 5400 members, working throughout the State of Hawaii not only in the construction industry, but in health care, traffic safety, hazardous material remediation, golf course maintenance and pest control. (Decl. Casarez, 3. That these thousands of employees, as members of the Local, are serviced by their union in a smooth and expeditious manner is critical to their performance of work. Safety is a primary concern of the Local and field representatives literally go out in the field and check the job sites and workplaces. It takes specialized knowledge of the particular industry and familiarity with the job classifications to know whether a member is performing his work competently and safely. Oliver Kupau as the senior field representative not only checked jobs himself, but he trained the other representatives to properly identify and address these concerns. 8
In addition, as set forth above, Oliver Kupau has demonstrated incomparable skills involving contract administration and enforcement. (Decl. Casarez 7, 11. The courts have held that harmonious labor relations and the stability and finality of collective bargaining agreements are in the public interest. NLRB v. Associated Contractors, Inc., 633 F.2d 766, 772 (9 th Cir. 1980; Leonard v. Clark, 12 F.3d 885, 891 (9 th Cir. 1993. Oliver Kupau s employment will directly assist the Trusteeship in transitioning the Local to its full restored status of autonomy in the least disruptive manner possible. It serves the public interest to allow Oliver Kupau to remain employed as a business representative pending his Application. III. CONCLUSION The balance of hardships clearly tips in favor of allowing Local 368 and LIUNA to re-employ Oliver Kupau as a field representative. Again, the statutory presumption of Trusteeship validity will expire at the end of July 2008 and it is for this reason that Oliver Kupau s immediate re-employment is sought and that Intervenors request an expedited hearing on this motion. For the foregoing reasons, Local 368 and LIUNA respectfully move this Court for an order granting their motion for preliminary injunction, such that Oliver Kupau may be employed by the LIUNA Trusteeship and then, by 9
Local 368 (once autonomy is restored, pending this Court s ruling on Oliver Kupau s Application for Exemption. DATED: June 27, 2008. /s/ Lori K. Aquino ASHLEY K. IKEDA LORI K. AQUINO Attorneys for LOCAL 368 and LIUNA 10