Opinion
Case No.: 20-cv-2499-AJB-BLM
2021-06-29
Manuel VASQUEZ, an individual, Petitioner, v. Martin J. WALSH, as United States Secretary of Labor, Defendant.
Ricardo Martinez, Ricardo Ochoa, Ochoa|Law, San Diego, CA, for Petitioner. U.S. Attorney CV, Douglas Keehn, U.S. Attorneys Office, San Diego, CA, for Defendant Eugene Scalia.
Ricardo Martinez, Ricardo Ochoa, Ochoa|Law, San Diego, CA, for Petitioner.
U.S. Attorney CV, Douglas Keehn, U.S. Attorneys Office, San Diego, CA, for Defendant Eugene Scalia.
ORDER GRANTING PETITIONER'S LIMITED PETITION FOR RELIEF FROM 29 U.S.C. § 504(a) PROHIBITION
Anthony J. Battaglia, United States District Judge Before the Court is Petitioner Manuel Vasquez's petition for relief from the prohibition in Section 504(a) of the Labor–Management Reporting and Disclosure Act ("LMRDA"), 29 U.S.C. § 504(a) (" Section 504(a)"), against him serving as a union representative due to prior criminal convictions. (Doc. No. 1.) Respondent, U.S. Secretary of Labor, Martin J. Walsh, filed a partial opposition, to which Petitioner replied. (Doc. Nos. 10, 12.) On May 27, 2021, the Court held an evidentiary hearing on the petition. For the reasons set forth below, the Court GRANTS the petition.
According to Section 504(a), prior to adjudicating the petition, "the court shall hold a hearing and shall give notice of such proceeding by certified mail to the Secretary of Labor and to State, county, and Federal prosecuting officials in the jurisdiction or jurisdictions in which such person was convicted." Pursuant to the statute, the Court sent a notice of the proceeding, by certified mail, to the United States Secretary of Labor, the Office of the Attorney General for the State of California, the Office of the District Attorney for the County of San Diego, and the Office of the U.S. Attorney for the Southern District of California. (Doc. No. 5.)
I. BACKGROUND
In 2008, Petitioner was convicted of attempted murder and assault with a deadly weapon in San Diego County Superior Court for his involvement as the driver in a gang-related shooting in Oceanside, California. At sentencing, the judge did not apply the gang enhancement and sentenced Petitioner to five years' imprisonment because he pled guilty, was not the shooter, and did not have a prior significant adult criminal record. Petitioner was released from prison on September 17, 2012 and discharged from parole on October 17, 2014, completing both without issue.
During his incarceration, Petitioner attended individual therapy and group counseling, and due to good behavior, was moved to minimum security. While there, he enrolled in various education programs offered by the National Center for Construction, Education, and Research. Participation in these programs was contingent on maintaining good behavior and lack of disciplinary write-ups. Petitioner completed OSHA-required forklift operator and safety training and became certified for Employability and Welding.
Within nine days of his release from prison, Petitioner gained full-time employment as a mechanical pipe fitter pre-apprentice through Local 230, United Association of Plumbers and Steam Fitters ("Local 230"). He later enrolled as an apprentice through Local 230's participation in a Joint Labor-Management Apprenticeship Program. While an apprentice, Petitioner obtained a U.S. Department of Defense "Rapid Pass" and performed work on military installations. In July 2018, Petitioner successfully completed the five-year apprenticeship program and graduated as a Journeyman Steamfitter. He remains a member in good standing of Local 230.
Petitioner has also volunteered for his union and with various community organizations since his release from custody. He has volunteered his time for food and toy drives organized by the San Diego and Imperial Counties Labor Council, diaper drives organized by the San Diego Food Bank, and precinct walks for local candidates. He has also become a volunteer leader in "HoMEwork," a community development program dedicated to combatting recidivism by connecting formerly incarcerated individuals with unionized apprenticeship. Petitioner provides weekly mentorship and training to program participants. He avoids attending events that would likely draw gang presence and has not been arrested since his release in 2012.
On June 12, 2020, the San Diego Superior Court granted Petitioner a Certificate of Rehabilitation and recommended that the Governor of the State of California grant him a full pardon. Because of his criminal convictions, Petitioner is automatically barred under Section 504(a) from serving as a union employee or representative until September 17, 2025. Petitioner is a valued member of Local 230, and prior to becoming aware of the Section 504(a) bar, served in the union's political education committee, union election committee, and as an inside sentry for union meetings. Petitioner stepped down from these positions after learning about the LMRDA restrictions, but desires to further his involvement with his union. The instant petition to lift the Section 504(a) bar follows.
II. LEGAL STANDARD
Section 504(a) prohibits a person convicted of certain crimes from serving as, among other things, a union representative in any capacity. 29 U.S.C. § 504(a). The prohibition lasts for thirteen years after conviction or release from prison, whichever is later. Id. However, it may be lifted if the district court for the district in which the offense was committed determines—pursuant to the sentencing guidelines and policy statements under 28 U.S.C. § 994(a) —that the person's service in such a capacity "would not be contrary to the purposes of this chapter." Id.
"Congress enacted the Labor–Management Reporting and Disclosure Act as remedial legislation intended to combat union corruption and protect the rights of union members." United States v. Cullison , 422 F. Supp. 2d 65, 66–67 (D.D.C. 2006). With Section 504(a), "Congress intended to secure high standards of responsibility and ethical conduct in labor organizations by locking out ... those people who demonstrate an inability to abide by such standards." Id. at 68 ; see 29 U.S.C. § 401(a). Additionally, the Federal Sentencing Guidelines' policy statement regarding exemptions from Section 504(a) states,
relief shall not be given to aid rehabilitation, but may be granted only following a clear demonstration by the convicted person that he or she has been rehabilitated since commission of the disqualifying crime and can therefore be trusted not to endanger the organization in the position for which he or she seeks relief from disability.
U.S.S.G. § 5J1.1.
III. DISCUSSION
Petitioner seeks a limited exemption from the Section 504(a) bar so he may work in one or more of the following positions: (1) Local 230 delegate to the Labor Council, (2) District Council 16 organizer (assigned to Local 230), and (3) Local 230 business agent. The parties do not dispute that Petitioner has convictions that bar him from holding these union representative positions. As such, the remaining questions before the Court are whether Petitioner has met his burden of clearly demonstrating rehabilitation and can be trusted not to endanger Local 230 in the positions for which he seeks relief, and whether his service in these positions would not be contrary to the purposes of securing high standards of responsibility and ethical conduct in labor organizations. See 29 U.S.C. § 504(a) ; Cullison , 422 F. Supp. 2d at 68 ; U.S.S.G. § 5J1.1. The parties agree that to answer these questions, courts have generally considered the following three factors: (1) the character and gravity of the disqualifying offense; (2) the duties of the union position sought; and (3) whether the person has been rehabilitated sufficiently to adhere to the high standards of responsibility and ethical conduct imposed by the LMRDA. See, e.g., Cullison , 422 F. Supp. 2d at 69, 72 ; United States v. Martin , No. CR. 02-127(1)ADM/AJB, 2009 WL 928631, at *2 (D. Minn. Apr. 1, 2009) ; In re Kellem , No. 6:18-MC-52-ORL-37GJK, 2019 WL 263060, at *4 (M.D. Fla. Jan. 11, 2019), report and recommendation adopted by Kellem v. United States Dep't of Lab. , No. 6:18-MC-52-ORL-37GJK, 2019 WL 266474 (M.D. Fla. Jan. 18, 2019). The Court considers each factor in turn.
A. Character and Gravity of the Disqualifying Offense
As to the first factor, there is no dispute that Petitioner's disqualifying crimes of attempted murder and assault with a deadly weapon are serious offenses. While the Court does not diminish the severity of his crimes, the particular circumstances surrounding them merit due consideration. To begin, the Court notes that Petitioner was not the shooter, and immediately upon his arrest, showed remorse and accepted responsibility for his actions as the driver, and put himself at grave personal risk by cooperating with the authorities. Petitioner provided significant assistance by identifying the shooter and agreeing to testify against him. Due to his assistance, the shooter was apprehended and sentenced to thirty-nine years in prison. Highlighting the risk that Petitioner took in cooperating with the authorities, Petitioner was assaulted and stabbed multiple times during his incarceration and was placed in a protective custody yard for his security. Tellingly, the sentencing judge in Petitioner's criminal case noted that he "is not a danger to others," struck an otherwise applicable gang enhancement over the prosecutor's objection, and imposed a "low term" of five years' imprisonment. (Doc. No. 10-2 at 17.)
Considering Petitioner's relative role in and commendable response to the incident, the Court declines to adopt Respondent's position that Petitioner's crimes categorically disqualify him from positions of influence in the union. Moreover, Petitioner did not commit these crimes during his involvement with Local 230. Although offenses arising outside of the union context may be indicative of an individual's propensity to repeat such acts in the union, Petitioner's extraordinary showing of rehabilitation, as more fully explained below, makes apparent that no such risk of recurrence exists here. Cf. In re The Petition of Belpedio , 753 F. Supp. 239, 241 (N.D. Ill. 1990) (denying relief where the petitioner was convicted of felony aggravated battery outside of the union context and made no attempt to show how he had been rehabilitated since the commission of the disqualifying crime.) Thus, for the foregoing reasons, the Court declines to accord decisive weight on the nature of Petitioner's disqualifying crimes.
B. Duties of the Union Position Sought
As to the second factor, the Court considers the duties of the desired positions and whether Petition can be trusted not to endanger Local 230 by serving as a delegate, organizer, and business agent. See 29 U.S.C. § 504(a) ; Cullison , 422 F. Supp. 2d at 68 ; U.S.S.G. § 5J1.1. Based on the U.S. Department of Labor's investigation, a delegate to the Labor Council represents Local 230 in the council's monthly meetings and votes on issues such as the organization's leadership, annual budget, and candidate and policy endorsements. An organizer for Local 230 conducts visits to non-union worksites, attends job fairs, and otherwise engages in outreach to potential members, as well as provides education and training to current members. A business agent is responsible for the daily affairs and business operations of the local, including fostering and promoting the employment and welfare of its members.
Regarding the delegate and organizer positions, Respondent does not oppose an exemption from the Section 504 bar to allow Petitioner to serve as a delegate or organizer. (Doc. No. 10 at 16.) According to Respondent, "the United States is satisfied that granting Vasquez limited relief to serve in these two specific positions ‘would not be contrary’ to the purposes of the LMRDA." (Id. ) Respondent affirmed his concessions and position at the evidentiary hearing, and the Court agrees. Petitioner's demonstrated commitment to volunteering his time to his union and other community organizations, coupled with the positive letters of recommendations from his colleagues and community leaders, evinces that he can be trusted not to endanger Local 230 in serving as a volunteer delegate to the Labor Council and a District Council 16 organizer. (Doc. No. 10-1 at 7–8.)
Regarding the disputed business agent position, the Court recognizes that the business agent position is an elected officer position, which in comparison to the delegate and organizer positions, entails more interaction with and influence over Local 230's membership and business affairs. However, apart from Respondent's general assertion that he opposes granting an exemption for this position, he does not articulate the basis for his position with any specificity. Instead, Respondent merely states, in conclusory fashion, that "given the information the Department has obtained regarding this particular role, combined with the other factors the Court must consider, the government currently opposes an exemption from the Section 504 bar regarding the business agent position." (Doc. No. 10 at 12.) It also appears that Respondent's primary objection is that Petitioner did not clarify his desire to apply for this position until later in the Department of Labor's investigation of his case. (Id. ("Given Vasquez's late addition of this position for consideration ... the government currently opposes an exemption from the Section 504 bar regarding the business agent position.").) This objection is unavailing. Respondent could have requested additional time to conduct further investigation into the business agent position but chose not to seek that opportunity. (Doc. No. 12-1 at 4–5.)
Furthermore, Petitioner's past offenses have no direct bearing on his trustworthiness, and there is ample evidence that Petitioner is considered by his colleagues and community leaders to be a valued, responsible, and productive member of Local 230. See generally Cullison , 422 F. Supp. 2d at 66–67 (noting that the LMRDA is "intended to combat union corruption and protect the rights of union members"). He has never been disciplined or fired from any union job site. (Doc. No. 10-1 at 7.) Indeed, through his prior service in the political education and union committees, and as an inside sentry, Petitioner has shown that he can be trusted to serve in positions of authority within the union. To the extent that a decade-old gang-related shooting signifies that Petitioner may endanger Local 230, the Court notes that Petitioner has long severed his gang affiliation and has risen above that way of life. As previously noted, upon his arrest in 2008, he cooperated with law enforcement authorities, and his assistance led to the shooter's arrest and conviction. (Doc. No. 10-2 at 2.) Due to this cooperation, Petitioner was ambushed and stabbed twice in one month while in prison in October 2009. (Id. ) Since that time, he has been determined to turn his life around and aspired to be an advocate against joining gangs. (Id. at 3.) For the past two years, he has volunteered nearly every Friday and Saturday at HoMEwork, providing mentorship and training to assist formerly incarcerated people with obtaining jobs through the union and transitioning back to the work force. Since his involvement in the program, Petitioner has helped approximately 30 people from relapsing into criminal behavior by obtaining apprenticeships in building trade unions. He has also avoided attending events that would likely draw a gang presence.
Simply put, Petitioner's actions upon and since his arrest show that he is a reformed and responsible individual, dedicated to his union and serving the community. As Local 230's Business Manager expressed in his letter in support of Petitioner, his "strong work ethic and dedication is beyond impressive" and he "has paid his debt to society and had [sic] proven what it takes to be responsible for your actions." (Doc. No. 10-2 at 76.) Petitioner also submitted letters of recommendation from community leaders, elected officials, colleagues, and fellow volunteers attesting to his upstanding character and commitment to helping others find a better path after incarceration. This evidentiary showing is unrebutted. (Doc. No. 10-1 at 7–8.) Indeed, the Court finds nothing in the record upon which it can reasonably find that Petitioner is not fit to hold a position of trust and would endanger Local 230. Thus, the Court disagrees with Respondent that the duties of a business agent weigh against granting an exemption in this case.
C. Clear Demonstration of Rehabilitation
As to the third and last factor, the Court considers whether Petitioner has been rehabilitated sufficiently to adhere to the high standards of ethical conduct imposed by the LMRDA. See 29 U.S.C. § 504(a) ; Cullison , 422 F. Supp. 2d at 68 ; U.S.S.G. § 5J1.1. The record is clear that the answer is yes. Respondent presented no evidence to the contrary. Petitioner's conduct since his arrest and release from imprisonment demonstrates an extraordinarily high level of rehabilitation. To begin, the disqualifying crimes occurred over thirteen years ago, and even at the time of his arrest, Petitioner had demonstrated remorse by pleading guilty and assisting the authorities in apprehending the shooter. Notably, at sentencing, the judge did not apply the gang enhancement due to Petitioner's lack of significant criminal history and his "belief that [Petitioner] is not a danger to others." (Doc. No. 10-1 at 2–3.) Moreover, while serving his sentence, Petitioner dedicated himself to turning his life around. He took full advantage of rehabilitation opportunities by attending individual and group counseling, as well as enrolling in educational programs which earned him multiple trade certifications. (Id. at 3.) Petitioner completed both his sentence and probationary period without incident and has not been arrested since his release in 2012. (Id. at 6.)
Petitioner's reentry to society further demonstrates his rehabilitation. Within days of his release, he secured full time employment. (Doc. No. 10-2 at 3.) He joined Local 230 and committed to bettering himself by completing a five-year apprenticeship program that required him to pass two semesters of training courses annually, log 7,000 work hours, and pass random drug tests consistent with the union's zero tolerance policy. (Id. ) Petitioner has never been terminated or disciplined at any union job site. (Id. ) He has also performed work at Marine Corps Base Pendleton, Amphibious Naval Base Point Loma, and Amphibious Naval Base Coronado—all without issue. (Id. ) As previously mentioned, Petitioner has volunteered for his union and other community organizations by participating in food, toy, and diaper drives, and precinct walks for local candidates. (Id. at 4.) Most pertinent, through his weekly volunteer work with HoMEwork, Petitioner continues to share his journey of overcoming a life as a former felon with other formerly incarcerated individuals and has helped dozens of them obtain apprentice positions in building trade unions. (Id. ) And on June 12, 2020, the San Diego Superior Court granted Petitioner a Certificate of Rehabilitation and recommended that the Governor of the State of California grant him a full pardon. (Id. at 78.)
All of this evidence is unrebutted. Indeed, Respondent admits that Petitioner has "attained a sufficient level of rehabilitation" such that his service as a delegate or organizer for Local 230 would not be contrary to the purposes of the LMRDA. (Doc. No. 10-1 at 8.) The Court sees no compelling reason why this conclusion should not apply with equal force to the business agent position. And Respondent offers none. Consequently, based on Petitioner's strong, unrebutted evidentiary showing of his rehabilitation and good character, the Court finds that he has been rehabilitated sufficiently to adhere to the high standards of responsibility and ethical conduct in labor organizations. Thus, this factor weighs heavily in favor of granting the petition.
In sum, upon consideration of the relevant factors, the Court finds that the weight of Petitioner's extraordinary showing of rehabilitation and the duties of the positions sought overcome the nature of his thirteen-year-old offenses.
IV. CONCLUSION
For the foregoing reasons, the Court finds that the balance of factors shows that Petitioner merits a limited exemption to the Section 504(a) bar. Pursuant to the applicable sentencing guidelines and policy statements, the Court finds that Petitioner has clearly demonstrated that he has been rehabilitated since the commission of the disqualifying crimes and can therefore be trusted not to endanger Local 230 in the positions for which he seeks relief from disability. See Cullison , 422 F. Supp. 2d at 68 ; U.S.S.G. § 5J1.1. Thus, the Court concludes that Petitioner's service as a Local 230 delegate, organizer, or business agent "would not be contrary to the purposes" of the LMRDA within the meaning of 29 U.S.C. § 504(a).
Accordingly, the Court GRANTS Petitioner a limited exemption from the Section 504(a) bar, so he may serve as a Local 230 delegate, organizer, or business agent—provided that his service in those positions does not involve his serving in positions or participating in activities related to employee benefit plans or advising or consulting on such plans as set forth in the Employee Retirement Income Security Act section 411, 29 U.S.C. § 1111.
The Court makes clear that it is granting an exemption to the Section 504(a) bar only for the positions specified in this Order. This limited exemption is not to be construed as an across-the-board reduction of the bar's duration for all union positions.