Shanker, Chief, Div. of Enforcement, OLMS, USDOL v. Patent Office Professional Association (agency decision, August 7, 2024)

Plain-English summary

The Board had found that the Patent Office Professional Association violated federal union-election law and ordered a new presidential election supervised by the Office of Labor-Management Standards. After the original deadline was replaced and then extended, the supervised election was held on February 28, 2024. OLMS certified that the process complied with governing law and the union's constitution and bylaws, and it reported how election challenges were resolved. The Board declared Kathleen Duda the duly elected union president and dismissed the case.

Decision snapshot

• Cited authorities: 5 U.S.C. § 7120; 29 U.S.C. § 482(c)(2); 29 C.F.R. § 458.65(c)
• Outcome: Kathleen Duda declared the duly elected president and the enforcement case dismissed.
• Key point: Once the Department certifies a lawfully supervised remedial election, the Board may declare the result and enter final judgment.

Full text (DOL official public release)

    U.S. Department of Labor     Administrative Review Board
                                 200 Constitution Ave. NW
                                 Washington, DC 20210-0001

    IN THE MATTER OF:

    TRACY SHANKER, CHIEF, DIVISION
    OF ENFORCEMENT, OFFICE OF              ARB CASE NO. 2023-0001
    LABOR MANAGEMENT STANDARDS,
    DEPARTMENT OF LABOR,                   ALJ CASE NO. 2021-SOC-00002
                                           ALJ WILLIAM P. FARLEY
               COMPLAINANT,
                                           DATE: August 7, 2024
         v.

    PATENT OFFICE PROFESSIONAL
    ASSOCIATION,

               RESPONDENT.

Appearances:

For the Complainant:
      Beverly Dankowitz, Esq., Eleanore I. Simms, Esq., and Christa N.
Henderson, Esq.; U.S. Department of Labor, Office of the Solicitor;
Washington, District of Columbia

For the Respondent:
      Richard J. Hirn, Esq.; Patent Office Professional Association;
Washington, District of Columbia

Before HARTHILL, Chief Administrative Appeals Judge, and THOMPSON,
Administrative Appeals Judge

     ORDER DECLARING ELECTION RESULTS AND FINAL JUDGMENT

HARTHILL, Chief Administrative Appeals Judge:

     This case arises under Title VII of the Civil Service Reform Act of 1978
(CSRA),1 the Labor-Management Reporting and Disclosure Act (LMRDA),2 and the

1       5 U.S.C. §§ 7101-7135.
2       29 U.S.C. §§ 401-531.
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Standards of Conduct (SOC) regulations issued pursuant to the CSRA.3 On
November 16, 2022, the Administrative Review Board (ARB or Board) issued a
Decision and Order Affirming Recommended Decision and Order and Ordering New
Election (D. & O.).4 In the D. & O., the Board concluded that Respondent Patent
Office Professional Association (POPA) violated the LMRDA. Consequently, the
Board ordered POPA to conduct a new election for the office of president of POPA
under the supervision of the U.S. Department of Labor (Department) Office of
Labor-Management Standards (OLMS) by March 16, 2023.5

        On June 14, 2023, the Federal Labor Relations Authority affirmed the
Board’s determination that POPA violated the LMRDA but remanded to the Board
to issue a new remedial order because the March 16, 2023 deadline had already
passed. On August 17, 2023, the Board ordered POPA to conduct an election for the
office of union president under OLMS’s supervision by January 31, 2024.

     On September 18, 2023, the parties filed a Joint Motion to Amend Order for
Supervised Election, asking for an extension to conduct the supervised election on
February 29, 2024, which the Board granted on September 28, 2023.

       On July 12, 2024, OLMS’s Acting Chief, Division of Enforcement, filed a
Certification of Election (Certification) with the Board, stating that the election was
conducted pursuant to the Board’s September 28 Order.6 The Certification further
stated that the election was conducted in accordance with LMRDA and POPA’s
constitution and bylaws. Kathleen Duda was certified the winner of the election.




3      29 C.F.R. Part 458 (2024).
4      The Board issued an Errata on December 6, 2022, to correct errors in the D. & O.’s
case caption. Otherwise, the D. & O. did not change.
5      As we explained in the D. & O., when a union is found to have violated LMRDA
section 401, the ARB, by delegation from the Secretary of Labor, has the discretion under
the CSRA and SOC regulations to order appropriate relief. 5 U.S.C. § 7120(d); 29 C.F.R.
§§ 458.88(c), .91(a); see also Secretary’s Order No. 01-2020 (Delegation of Authority and
Assignment of Responsibility to the Administrative Review Board (Secretary’s discretionary
review of ARB decisions)), 85 Fed. Reg. 13,186 (Mar. 6, 2020); Chief, Div. of Enf’t, Off. of
Lab.-Mgmt. Standards, U.S. Dep’t of Lab. v. Local 12, Am. Fed’n of Gov’t Emp., ARB Nos.
2013-0094, 2014-0081, ALJ No. 2013-SOC-00001, slip op. at 3 (ARB Sept. 24, 2014).
6    The Acting Chief of the Division of Enforcement, Molly Wagoner, is serving in
Complainant Tracy Shanker’s capacity while Ms. Shanker is on detail.
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      In addition to the certification, the Acting Chief filed a declaration
(Declaration) describing the election process, pre- and post-election challenges, and
how OLMS resolved the challenges. The Declaration concluded:

              The Department has concluded from its investigation of
              these protests that POPA’s February 28, 2024 election for
              the office of President, conducted under the Department’s
              supervision, complied with Title IV of the LMRDA, as made
              applicable to elections of federal sector unions by the Civil
              Service Reform Act, 5 U.S.C. § 7120, and 29 C.F.R. §
              458.29, and was conducted, insofar as lawful and
              practicable, in accordance with POPA’s constitution and
              bylaws and the LMRDA. Therefore, the results of this
              supervised election should be certified.[7]

      After a thorough review of the Certification and Declaration, the Board
declares that Kathleen Duda is the Duly elected President of the Patent Office
Professional Association.8

       Accordingly, this case is dismissed.

       SO ORDERED.



                                            ____________________________________
                                            SUSAN HARTHILL
                                            Chief Administrative Appeals Judge



                                            ____________________________________
                                            ANGELA W. THOMPSON
                                            Administrative Appeals Judge




7      Declaration at 9.
8      29 C.F.R. § 458.65(c); 29 U.S.C. § 482(c)(2), as made applicable to elections of federal
sector unions by 5 U.S.C. § 7120.