WASHINGTON, Aug. 19 MN-Democratic-Workplc
WASHINGTON, Aug. 19 /PRNewswire/ -- In a decisive blow to the Minnesota
Democrat Farm Labor (DFL) Party's attempts to curtail free speech, on Monday a
Minnesota judge dismissed the DFL Party's complaint against the Coalition for
a Democratic Workplace (CDW). CDW's television ad said Al Franken supports a
federal bill to permit labor unions to force themselves on workers without a
secret ballot. The DFL claimed that statement was false. But after examining
the DFL's evidence at a hearing, Judge Barbara L. Nielsen dismissed the case,
ruling that "The statement that Mr. Franken wants to eliminate the secret
ballot is not factually false." (To view the ad, please visit
http://www.MyPrivateBallot.com).
In addition to explaining that the bill Franken supports explicitly
curtails workers' existing rights to secret ballots, Judge Nielsen noted that
respected sources from across the nation and the political spectrum had
described the bill in the same way as the CDW's ad.
"The ruling is a vindication of what the Coalition for a Democratic
Workplace has been saying all along: that the Employee Free Choice Act
represents a real threat to a worker's right to cast a private vote on whether
to unionize. This is not only a victory for workplace privacy, but for free
speech as well," said Brian Worth, vice president of the Independent
Electrical Contractors of America and member of the Coalition for a Democratic
Workplace. "The DFL and its labor union allies can't hide from the facts and
they can't prevent us from educating Minnesotans about Al Franken's and Norm
Coleman's positions on the critical issue of worker privacy."
The DFL has consistently rejected the facts about how EFCA will
effectively end the right of workers to cast their vote in private when
deciding whether to join a union.
Under EFCA, the NLRB must recognize the union without an election if a
majority of workers sign an authorization card identifying who they are. Once
the 50% threshold has been crossed, the statute is unequivocal in its command:
"the [NLRB] shall not direct an election but shall certify the individual or
organization as the labor representative." (Emphasis added.)
According to a recent poll conducted by the Coalition for a Democratic
Workplace (CDW), 72% of Minnesota voters prefer secret ballot elections over a
card check process when deciding whether or not to join a union. The same poll
found that 65% of Minnesota voters were opposed to the Employee Free Choice
Act.
A copy of the Order of Dismissal is attached.
About the Coalition for a Democratic Workplace
The Coalition for a Democratic Workplace is made up of more than 500
associations and organizations from every state across the nation that have
joined together to protect a worker's right to a private ballot when deciding
whether to join a union. For more information and a listing of our membership,
please visit http://www.MyPrivateBallot.com.
11-0320-19823-CV
STATE OF MINNESOTA
OFFICE OF ADMINISTRATIVE HEARINGS
Brian Melendez,
Complainant,
vs. ORDER OF DISMISSAL
Minnesotans for Employee Freedom,
Employee Freedom Action Committee,
King Banaian, Brian Worth, Mike
Murphy, and Coalition for a Democratic
Workplace,
Respondents.
The above-entitled consolidated matters came on for a probable cause
hearing as provided by Minn. Stat. Sec. 211B.34, before Administrative Law
Judge Barbara L. Neilson at 1:00 p.m. and 3:00 p.m. on August 8, 2008, to
consider complaints filed by Brian Melendez on August 1, 2008. The hearing was
held by telephone conference call. The record closed on August 11, 2008, upon
receipt of Respondents' post-hearing submission.
Alan W. Weinblatt, Attorney at Law, Weinblatt & Gaylord, PLC, appeared on
behalf of Complainant Brian Melendez. Sam Hanson and Neal T. Buethe, Attorneys
at Law, Briggs and Morgan, and Jan Witold Baran, Thomas W. Kirby, and Caleb P.
Burns, Attorneys at Law, Wiley Rein, LLP, Admitted Pro Hac Vice, appeared for
Respondents Employee Freedom Action Committee, Minnesotans for Employee
Freedom, and the Coalition for a Democratic Workplace. There was no appearance
by or on behalf of Respondents King Banaian, Brian Worth, or Mike Murphy.
Based on the record in this matter and for the reasons set out in the
attached Memorandum, the Administrative Law Judge concludes that there is no
probable cause to believe that Respondents violated Minn. Stat. Sec. 211B.06.
ORDER
IT IS ORDERED:
That there is no probable cause to believe that Respondents violated Minn.
Stat. Sec. 211B.06 as alleged in the Complaints, and therefore the Complaints
are DISMISSED.
Dated: August 18, 2008
/s/ Barbara L. Neilson
BARBARA L. NEILSON
Administrative Law Judge
Digitally recorded; no transcript prepared.
NOTICE OF RECONSIDERATION RIGHTS
Minnesota Statutes Sec. 211B.34, subdivision 3, provides that the
Complainant has the right to seek reconsideration of this decision on the
record by the Chief Administrative Law Judge. A petition for reconsideration
must be filed with the Office of Administrative Hearings within two business
days after this dismissal.
If the Chief Administrative Law Judge determines that the assigned
Administrative Law Judge made a clear error of law and grants the petition,
the Chief Administrative Law Judge will schedule the complaint for an
evidentiary hearing under Minnesota Statutes Sec. 211B.35 within five business
days after granting the petition.
MEMORANDUM
The Complaints in this matter concern the 2008 Minnesota U.S. Senate race.
Complainant is the chair of the Minnesota Democratic-Farmer Labor Party (DFL).
The Complaints allege that a television advertisement developed by Respondents
Mike Murphy and Brian Worth, on behalf of the Coalition for a Democratic
Workplace, and a newspaper advertisement produced and distributed by the
Employee Freedom Action Committee, Minnesotans for Employee Freedom, and King
Banaian contain false campaign material with respect to candidate Al Franken.
The advertisements are directed at Mr. Franken's support of proposed federal
legislation known as the Employee Free Choice Act (EFCA).
The Complaints were first filed on July 24, 2008. Administrative Law Judge
Barbara Neilson dismissed the Complaints without prejudice on July 29, 2008,
for failure to allege sufficient factual bases to support finding a violation
of Minn. Stat. Sec. 211B.06. Complainant filed the revised Complaints on
August 1, 2008.
In an Order dated August 6, 2008, the ALJ found the Complainant had
alleged prima facie violations of Minn. Stat. Sec. 211B.06 as against
Minnesotans for Employee Freedom, Employee Freedom Action Committee, and King
Banaian with respect to the newspaper advertisement. In a separate Order also
dated August 6, 2008, the ALJ found the Complainant had alleged a prima facie
violation of Minn. Stat. Sec. 211B.06 as against Brian Worth, Mike Murphy and
the Coalition for a Democratic Workplace with respect to the television
advertisement. The ALJ, however, dismissed the Complaint against Rhonda Bentz,
Noah Rouen and Vincent Curatola for failure to allege any facts to support a
claim that these persons participated in the preparation or dissemination of
the ad, and/or that they knew or entertained serious doubts about the
truthfulness of the statements made in the advertisement.
A probable cause hearing was held by telephone conference call on August
8, 2008. At the hearing, the parties agreed to consolidate the two Complaints
because they concern the same Complainant, subject matter and alleged
violations. By Order dated August 12, 2008, the Chief Administrative Law Judge
directed the two Complaints be joined for disposition pursuant to Minn. Stat.
Sec. 211B.33, subd. 4.
Dismissal of Respondents King Banaian, Mike Murphy and Brian Worth
Chapter 211B requires that Complaints be filed on a form prescribed by the
Office of Administrative Hearings.(1) The form requires the Complainant to
provide the name and address of each Respondent. The Office is then required
by statute to "immediately notify the respondent and provide the respondent
with a copy of the complaint by the most expeditious means available."(2)
Typically, the Office mails a copy of the Complaint by U.S. mail. If the
Complainant provides a fax number for a Respondent, the Office will send a
copy of the Complaint via fax to the Respondent. Formal service of the
complaint is not required.
In each Complaint in this matter, the Complainant listed only one address
for the named Respondents. In the Complaint filed against Brian Worth, Rhonda
Bentz, Noah Rouen, Mike Murphy, Vincent Curatola and the Coalition for a
Democratic Workplace, the Complainant listed only the Coalition's business
address as the address for all of the Respondents. As noted above, Ms. Bentz,
Mr. Rouen, and Mr. Curatola were dismissed at the prima facie stage. Neither
Mr. Murphy, who allegedly designed the television ad and is a principal with a
media-relations firm called "Navigators," nor Brian Worth, who may work in
some capacity for the Coalition, appeared for the probable cause hearing.
Neither acknowledged receipt of the Complaint and no Notice of Appearance was
filed on behalf of either of them. Likewise, in the Complaint filed against
Minnesotans for Employee Freedom, Employee Freedom Action Committee, and King
Banaian, the Respondent listed only the P.O. Box of Minnesotans for Employee
Freedom as the address for all of the Respondents. Although the P.O. Box
listed on the Complaint form was the same as the one printed in the newspaper
advertisement, the Complaint and Notice of Hearing were returned to the Office
of Administrative Hearings as undeliverable. Despite this fact, Minnesotans
for Employee Freedom and the Employee Freedom Action Committed did appear and
participate in the telephone probable cause hearing and were represented by
counsel.(3) King Banaian, however, who is a professor of economics at St.
Cloud State University, did not appear at the probable cause hearing. He did
not acknowledge receipt of the Complaint, and a Notice of Appearance form was
not filed on his behalf.
At the probable cause hearing, Complainant moved for entry of default
judgments against Respondents Murphy, Worth and Banaian for their failure to
appear by telephone at the probable cause hearings. The Administrative Law
Judge denied the motion because it could not be determined that Mssrs. Murphy,
Worth or Banaian received notice of the Complaint. A fundamental tenet of
procedural due process is adequate notice.(4) Although U.S. mail is sufficient
to give notice of a complaint under Chapter 211B, the document must be mailed
to the correct address.(5) In these proceedings, it appears that the Complaint
and Notice of Probable Cause Hearing were not mailed to the correct address
for Respondents Murphy, Worth and Banaian. Because it appears that these
Respondents were not provided adequate notice, the ALJ dismissed all three
Respondents without prejudice. The ALJ ruled at the probable cause hearing
that the Complainant may refile the Complaint against them if he provides the
Office of Administrative Hearings with a proper address at which they can be
provided a copy of the complaint.
Background
The two challenged advertisements concern a bill to amend the National
Labor Relations Act (NLRA), which is pending before Congress. The bill, H.R.
800, is named the "Employee Free Choice Act" (EFCA). Al Franken supports the
EFCA,(6) and he states on his website, http://www.alfranken.com, that he would
vote for or co-sponsor the EFCA if elected to the U.S. Senate.(7)
Under current law, workers or their employers may inform the National
Labor Relations Board (NLRB or Board) that a labor union wishes to represent
the workers in a proposed bargaining unit.(8) If the NLRB determines that the
proposed unit is appropriate and that "a question of representation exists, it
shall direct an election by secret ballot and certify the results thereof."(9)
Section 159(c) of the NLRA provides
specifically:
(1) Whenever a petition shall have been filed, in accordance with such
regulations as may be prescribed by the Board -
(A) by an employee or group of employees or any individual or labor
organization acting in their behalf alleging that a substantial number of
employees (i) wish to be represented for collective bargaining and that
their employer declines to recognize their representative as the
representative defined in subsection (a) of this section, or (ii) assert
that the individual or labor organization, which has been certified or is
being currently recognized by their employer as the bargaining
representative, is no longer a representative as defined in subsection (a)
of this section; or
(B) by an employer, alleging that one or more individuals or labor
organizations have presented to him a claim to be recognized as the
representative defined in subsection (a) of this section;
the Board shall investigate such petition and if it has reasonable cause
to believe that a question of representation affecting commerce exists
shall provide for an appropriate hearing upon due notice. Such hearing may
be conducted by an officer or employee of the regional office, who shall
not make any recommendations with respect thereto. If the Board finds upon
the record of such hearing that such a question of representation exists,
it shall direct an election by secret ballot and shall certify the results
thereof.
Thus, employees currently have the right to decide "a question of
representation" by "an election by secret ballot."(10)
The EFCA would amend existing law to provide that, if a union submits
representation cards signed by a majority of unit employees, "the Board shall
not direct an election, but shall certify" the union.(11) Section 2 of the
EFCA, entitled "Streamlining Union Certification," provides specifically:
(a) IN GENERAL - Section 9(c) of the National Labor Relations Act (29
U.S.C. 159(c) is amended by adding at the end of the following:
(6) Notwithstanding any other provision of this section, whenever a
petition shall have been filed by an employee or group of employees or any
individual or labor organization acting in their behalf alleging that a
majority of employees in a unit appropriate for the purposes of collective
bargaining wish to be represented by an individual or labor organization
for such purposes, the Board shall investigate the petition. If the Board
finds that a majority of the employees in a unit appropriate for
bargaining has signed valid authorizations designating the individual or
labor organization specified in the petition as their bargaining
representative and that no other individual or labor organization is
currently certified or recognized as the exclusive representative of any
of the employees in the unit, the Board shall not direct an election but
shall certify the individual or labor organization as the representative
described in subsection (a).
Thus, if 50 percent plus one of the bargaining unit employees sign
authorization cards asking for recognition of their union, and the NLRB
verifies their validity, the union will be certified and recognized without an
election by secret ballot.
Legal Analysis
Complainant alleges the advertisements at issue are false because Mr.
Franken has never said he wants to eliminate the secret ballot for workers or
end worker privacy. In addition, the Complainant asserts that the
advertisements intentionally misrepresent the EFCA and Mr. Franken's support
of it. According to the Complaint, the EFCA does not eliminate the right to a
secret ballot. Rather, it provides a process for "streamlining union
certification" where a majority of workers sign union authorization cards.
According to the Complainant, the election process would remain available as
an option if, for example, 30 percent of the bargaining unit signed cards or a
petition asking for an NLRB election.(12) Therefore, the Complaint claims that
the statements in the ad that Al Franken (by supporting the EFCA) wants to
eliminate the secret ballot for workers and end worker privacy are false, and
that the Respondents knew the statements were false or communicated them with
reckless disregard of whether they were false.
The purpose of a probable cause hearing is to determine whether there are
sufficient facts in the record to believe that a violation of law has occurred
as alleged in the complaint.(13) The Office of Administrative Hearings looks
to the standards governing probable cause determinations under Minn. R. Crim.
P. 11.03 and by the Minnesota Supreme Court in State v. Florence.(14) The
purpose of a probable cause determination is to answer the question whether,
given the facts disclosed by the record, it is fair and reasonable to require
the respondent to go to hearing on the merits.(15)
Minn. Stat. Sec. 211B.06, subd. 1, prohibits intentional participation:
...[i]n the preparation, dissemination, or broadcast of paid political
advertising or campaign material with respect to the personal or political
character or acts of a candidate, or with respect to the effect of a
ballot question, that is designed or tends to elect, injure, promote, or
defeat a candidate for nomination or election to a public office or to
promote or defeat a ballot question, that is false, and that the person
knows is false or communicates to others with reckless disregard of
whether it is false.
The two challenged advertisements are paid political advertising and meet
the statutory definition of "campaign material."(16)
To be found to have violated section 211B.06, two requirements must be
met: (1) a person must intentionally participate in the preparation or
dissemination of false campaign material; and (2) the person preparing or
disseminating the material must know that the item is false, or act with
reckless disregard as to whether it is false.
As interpreted by the Minnesota Supreme Court, the statute is directed
against false statements of fact. It is not intended to prevent criticism of
candidates for office or to prevent unfavorable deductions or inferences
derived from a candidate's conduct.(17) It does not reach criticism that is
merely unfair or unjust. It does reach false statements of specific facts.(18)
In addition, expressions of opinion, rhetoric, and figurative language are
generally protected speech if, in context, the reader would understand that
the statement is not a representation of fact.(19)
The term "reckless disregard" was added to the statute in 1998 to
expressly incorporate the "actual malice" standard applicable to defamation
cases involving public officials from New York Times v. Sullivan.(20) Based
upon this standard, the Complainant has the burden at the hearing to prove by
clear and convincing evidence that the Respondents either published the
statements knowing the statements were false, or that they "in fact
entertained serious doubts" as to the truth of the publication or acted
"with a high degree of awareness" of its probable falsity.(21) In addition,
the burden of proving the falsity of a factual statement cannot be met by
showing only that the statement is not literally true in every detail. If the
statement is true in substance, inaccuracies of expression or detail are
immaterial.(22)
As discussed more fully below, the Administrative Law Judge concludes,
after considering all of the evidence in the record and the arguments of the
parties at the probable cause hearing, that the Complainant has failed to
present sufficient facts to support finding probable cause that Respondents
violated Minn. Stat. Sec. 211B.06.
The Newspaper Advertisement
The text of the Minnesotans for Employee Freedom newspaper advertisement
is as follows:
Al Franken wants to be elected using a private ballot vote. Incredibly, he
supports a federal bill that would force Minnesota's workers into labor
unions by eliminating their right to the same private ballot vote.
Hard to believe? Tell Al Franken to support democracy at:
EmployeeFreedom.org.
The Complainant asserts that the following statement in the newspaper
advertisement is false: "Al Franken ... supports a federal bill that would
force Minnesota's workers into labor unions by eliminating their right to (a)
private ballot vote."
It is true that Al Franken supports the EFCA.(23) The question is, whether
the statement that the bill "would force Minnesota's workers into labor unions
by eliminating their right to a private ballot vote" is a false statement. As
discussed, under current law workers or their employers may notify the NLRB
that a labor union wishes to represent the workers in a proposed bargaining
unit. The NLRB can then direct an election by secret ballot.(24) The EFCA
would amend existing law to provide that, if a union submits representation
cards signed by a majority of unit employees, the NLRB would certify the union
without an election.(25) Thus, in the circumstance where a majority of
employees sign representation cards, the private ballot vote will be
eliminated.
Complainant argues that H.R. 800 was not drafted with the intent to
eliminate NLRB elections. As evidence he points to Report 110-23 of the House
of Representatives' Committee on Education and Labor, dated February 16, 2007,
in which the Committee explains that EFCA Sec. 2(a) amends Sec. 159(c) of the
NLRA to "provide for a majority sign-up certification process for gaining
union recognition."(26) In its explanation of Sec. 2(a) the Committee states:
Section 2(a) eliminates the employer's prerogative to deny recognition on
the basis of a majority sign-up with cards and eliminates the employer's
right to insist upon an NLRB election before recognizing a union. This
Section does not eliminate the NLRB election process, which remains an
option for employees as it is under current law. However, employees,
individuals, or labor organizations may submit signed authorization cards
to the NLRB, as part of a petition for certification, and gain recognition
without undergoing the NLRB election process. Indeed, if a majority sign
and submit valid authorization cards to the NLRB, notwithstanding any
other provision in the NLRA, the NLRB must certify the union.(27)
The Complainant contends that the EFCA simply proposes an alternative
process for unionization in addition to the NLRB election process. The
Complainant emphasizes that an editorial piece by union officials that ran in
the St. Paul Pioneer Press, and an investigative report by a WCCO television
reporter have suggested that it is false to claim that the EFCA would
eliminate the right to a private ballot vote.(28)
Respondents point out that according to the Minority Views portion of the
Committee Report, the EFCA "Strips Workers of the Right to Private Ballot
Elections."(29) The minority Report explains that the EFCA "provides that if a
union presents a majority of signed union authorization cards to the Board,
the union must be certified, and the right of employees to a private ballot
election is immediately and absolutely extinguished."(30) In addition to the
minority House Report, Respondents provide evidence that certain newspaper
columnists, editorial boards, and political commentators have recognized that
the EFCA will eliminate a worker's right to vote by secret ballot whether to
support unionization in the event a union submits representation cards from a
majority of bargaining unit employees.(31) In an editorial published in the
Wall Street Journal on August 8, 2008, former Senator George McGovern
expressed his opposition to the EFCA explaining that, as a longtime friend of
labor unions, he is opposed to the bill's key provision that "strips working
Americans of the right to a secret ballot election ... "(32)
After reviewing the EFCA and how it will amend current law governing union
organizing, the ALJ concludes that the record does not support finding
probable cause that a violation of Minn. Stat. Sec. 211B.06 has occurred. The
statement "Al Franken ... supports a federal bill that would force Minnesota's
workers into labor unions by eliminating their right to [a] private ballot
vote" is not a false statement that is actionable under Minn. Stat. Sec.
211B.06. Al Franken supports the EFCA and the EFCA will eliminate the private
ballot vote in certain circumstances. Like the situation involved in Kennedy
v. Voss,(33) the statement is an unfavorable deduction derived from a
candidate's conduct -- in this case, Mr. Franken's public support of the EFCA.
While the statement may be misleading by not explaining that workers will
still be able to vote secretly in other circumstances, it is not factually
false. As such, it does not come within the purview of Section 211B.06.
Moreover, there is no requirement that campaign material be thorough or
complete. Minnesota's appellate courts have repeatedly held that the statute
is not broad enough to prohibit incomplete and unfair campaign statements,
even those that are clearly misleading.(34)
The Television Advertisement
Complainant also challenges certain statements included in the television
advertisement. The script of the Coalition for a Democratic Workplace video
advertisement is as follows:
Announcer: "Norm Coleman says keep the secret ballot for union organizing
elections."
Boss: "Guy's a hero. I hate heroes."
Announcer: "Al Franken, well, he sees it differently. Franken says
eliminate the secret ballot for workers."
Boss: "My pal Al."
Announcer: "Call Al Franken. Tell him he's wrong to end worker privacy."
The Complaint contends that two statements in the television ad are false.
The statements are: "Franken says eliminate the secret ballot for workers,"
and "Tell [Franken] he's wrong to end worker privacy." The Complainant is not
challenging the statements based on a claim that Mr. Franken never spoke those
precise words. Rather he argues that the statements intentionally
misrepresent the purpose of the EFCA by falsely asserting that Al Franken
wants to eliminate the secret ballot for workers and end "worker privacy."
As with the newspaper advertisement, the ALJ concludes that there are
insufficient facts in the record to support probable cause that a violation of
Section 211B.06 has occurred. The statement that Mr. Franken wants to
eliminate the secret ballot is not factually false, since the EFCA will
eliminate the secret ballot vote for union organizing elections where a
majority of employees sign union authorization cards. Because Mr. Franken
supports the EFCA, the statement, "Franken says eliminate the secret ballot
for workers," is not false. It may be misleading and it certainly is
incomplete, but it is not false within the meaning of Sec. 211B.06. Similarly,
the second statement is not factually false. Because the EFCA will eliminate
private ballot elections in certain circumstances, it is not untruthful to
characterize the bill's effect as "end[ing] worker privacy." Section 211B.06
does not regulate unfavorable deductions, inferences, unfair characterizations
or misleading remarks.(35) As with the first statement, this statement is not
"false" under the statute.
No Evidence Statements Were Communicated With Reckless Disregard of
Falsity
Even if the statements in the newspaper and television advertisements were
false, the Complaints would fail because Complainant put forward no evidence
supporting a determination that there is probable cause to believe that the
statements were made with knowledge that they were false, or with reckless
disregard as to whether the statements were false.(36) "Reckless disregard"
does not mean recklessness in the ordinary sense of extreme negligence. Rather
it means the statement must be made with the subjective belief that it is
probably false.(37) Section 211B.06 requires a complainant to allege facts
showing that the respondent "in fact entertained serious doubts as to the
truth of the publication or acted with a high degree of awareness of its
probable falsity." (38)
The burden is on the Complainant to put forward some evidence at the
probable cause stage that the Respondents knew the statements in the
advertisements were false or that they communicated the statements while
subjectively believing they were probably false. There is nothing in the
record to support such a finding. Instead, the evidence in the record
demonstrates that the effect of the bill is of great (and highly partisan)
debate. Many editorial boards, political commentators, and the House Minority
Report have drawn the same conclusion as the Respondents regarding the bill's
effect. The Complainant's assertion in the Complaints that the Respondents
"have the background, education, training and experience [to] show clearly and
convincingly that [they] knew the statements were false or were made with
reckless disregard for whether they were false," is factually insufficient to
support a finding of probable cause.
Accordingly, the consolidated complaints are dismissed. Given this
disposition, it is not necessary to address the Respondents' further arguments
that Minn. Stat. Sec. 211B.06 is unconstitutional on its face or as
applied,(39) and that it is preempted by federal law when applied to
advertising regarding federal candidates.(40)
Respondents' Request for Attorneys' Fees and Expenses
The Respondents have requested an award of their fees and expenses under
Minn. Stat. Sec. 211B.36(3). This statute allows the assigned Administrative
Law Judge to order a complainant to pay the respondent's reasonable attorney's
fees and costs of the Office of Administrative Hearings as a sanction if the
judge determines the complaint was frivolous.
A frivolous claim is one that is without any reasonable basis in law or
equity and could not be supported by a good faith argument for a modification
or reversal of existing law.(41) Minnesota Rules of General Practice
9.06(b)(3) defines "frivolous litigant" to include:
A person who institutes and maintains a claim that is not well grounded in
fact and not warranted by existing law ... or that is interposed for any
improper purpose, such as to harass or cause unnecessary delay or
needless increase in the cost of litigating the claim.
The Complaints in this matter, while insufficient to support findings of
probable cause, had a reasonable basis in law and cannot be found to be
frivolous.(42) Moreover, there is no evidence that the Complainant instituted
the Complaints for improper purposes. Respondents' request for fees and
expenses is denied.
B. L. N.
1 Minn. Stat. Sec. 211B.32, subd. 3.
2 Minn. Stat. Sec. 211B.32, subd. 6.
3 When questioned by the ALJ, counsel for Minnesotans for Employee Freedom
and Employee Freedom Action Committee were unable to explain how their clients
received notice of the complaint and hearing.
4 Goldberg v. Kelly, 397 U.S. 254, 268-69, 90 S.Ct. 1011, 1020, 25 L.Ed.2d
287 (1970).
5 Walker v. City of Hutchinson, 352 U.S. 112, 116, 77 S.Ct. 200, 202, 1
L.Ed.2d 178 (1956); Kelley v. Moe, 387 N.W.2d 664, 668 (Minn. App. 1986).
6 Testimony of Matthew Fuehrmeyer (Al Franken's Campaign Research
Director).
7 Http://www.alfranken.com/pages/workers (last accessed August 15, 2008).
8 29 U.S.C. Sec. 159(c)(1).
9 Id.
10 Id.
11 EFCA Sec. 2(a).
12 See Report, 110-23 of the U.S. House of Representatives Committee on
Education and Labor, dated February 16, 2007, (Library of Congress version
supplied by Complainant) (herinafter "EFCA House
Committee Report") at 20.
13 Minn. Stat. Sec. 211B.34, subd. 2.
14 239 N.W.2d 892 (Minn. 1976); see also Black's Law Dictionary 1219 (7th
ed. 1999) (defining "probable cause" as "[a] reasonable ground to suspect that
a person has committed or is committing a crime.")
15 Id., 239 N.W.2d at 902.
16 Minn. Stat. Sec. 211B.01, subd. 2. ("Campaign material" is defined in
part as "any literature, publication or material that is disseminated for the
purpose of influencing voting at a primary or other election.")
17 Kennedy v. Voss, 304 N.W.2d 299 (Minn. 1981).
18 Hawley v. Wallace, 137 Minn. 183, 186, 163 N.W. 127, 128 (1917); Bank
v. Egan, 240 Minn. 192, 194, 60 N.W.2d 257, 259 (1953); Bundlie v.
Christensen, 276 N.W.2d 69, 71 (Minn. 1979) (interpreting predecessor statutes
with similar language).
19 Jadwin v. Minneapolis Star and Tribune Co., 390 N.W.2d 437, 441 (Minn.
App. 1986), citing Old Dominion Branch No. 496, National Assoc. of Letter
Carriers v. Austin, 418 U.S. 264, 284-86 (1974); Greenbelt Coop. Publishing
Assoc. v. Bresler, 398 U.S. 6, 13-14 (1970). See also Milkovich v. Lorain
Journal Co., 497 U.S. 1, 16-17 (1990); Diesen v. Hessburg, 455 N.W.2d 446, 451
(Minn. 1990); Hunter v. Hartman, 545 N.W.2d 699, 706 (Minn. App. 1996);
20 New York Times v. Sullivan, 376 U.S. 254, 279-80 (1964).
21 See St. Amant v. Thompson, 390 U.S. 727, 731 (1968); Garrison v.
Louisiana, 379 U.S. 64, 74 (1964); see also Riley v. Jankowski, 713 N.W.2d
379, 401 (Minn. App. 2006), rev. denied (Minn. July 20, 2006).
22 Jadwin v. Minneapolis Star and Tribune Co., 390 N.W.2d 437, 441 (Minn.
App. 1986).
23 Testimony of Matthew Fuehrmeyer (Al Franken's Campaign Research
Director).
24 29 U.S.C. Sec. 159(c)(1).
25 EFCA Sec. 2(a).
26 EFCA House Committee Report at 22.
27 Id.
28 See, "Employee Free Choice Act Isn't Misleading, But Sen. Coleman's
Argument Is," Brad Slawson Jr. and Ray Waldron, St. Paul Pioneer Press, June
7, 2007; "Reality Check: New Ad On Unions Organizing Workers," Pat Kessler,
WCCO-TV. (Complainant's Exs. D and E.)
29 EFCA House Committee Report at 31.
30 Id.
31 See Respondents' Response to Amended Complaints, pp. 5-7 and Exhibit C,
citing inter alia, Lawrence Lindsey, "Card Check Caveat," Washington Post
(Jan. 24, 2008); Wall Street Journal editorial, Mar. 1, 2007; Los Angeles
Times editorial Mar. 1, 2007; George Will, "An Assault on Corporate Speech,"
Washington Post, Feb. 27, 2007; Tresa Baldas, "Bill Would Radically Alter
Union Organizing," National Law Journal, Feb. 26, 2007.
32 George McGovern, "My Party Should Respect Secret Union Ballots," Wall
Street Journal, August 8, 2008 (part of Respondents' Exhibit C).
33 304 N.W.2d 299 (Minn. 1981).
34 See, Bundlie v. Christensen, 276 N.W.2d at 71.
35 Sluss v. MCCL State PAC, OAH Docket No. 15-0320-17790-CV (Apr. 19,
2007).
36 Minn. Stat. Sec. 211B.06; New York Times, 376 U.S. at 279-80 (1964).
37 Riley v. Jankowski, 713 N.W.2d 379, 401 (Minn. App. 2006), rev. denied
(Minn. July 20, 2006).
38 See St. Amant v. Thompson, 390 U.S. 727, 731 (1968); Garrison v.
Louisiana, 379 U.S. 64, 74 (1964); see also Riley v. Jankowski, 713 N.W.2d
379, 401 (Minn. App. 2006), rev. denied (Minn. July 20, 2006).
39 Administrative Law Judges have authority to consider whether a statute
is unconstitutional as applied. However, as a general rule, neither an
Administrative Law Judge nor the head of an Executive Branch agency may
declare a statute or rule "facially unconstitutional." The power to declare a
law unconstitutional in all settings is vested with the judicial branch of
state government. See, Neeland v. Clearwater Memorial Hosp., 257 N.W.2d 366,
368 (Minn. 1977); In the Matter of Rochester Ambulance Serv., 500 N.W.2d 495,
499-500 (Minn. App. 1993).
40 In State v. Jude, 554 N.W.2d 750 (Minn. App. 1996), the Minnesota Court
of Appeals held that the Minnesota Fair Campaign Practices Act is not
preempted by federal law.
41 Maddox v. Department of Human Services, 400 N.W.2d 136, 139 (Minn. App.
1987).
42 Block v. Target Stores, Inc., 458 N.W.2d 705, 713 (Minn. App. 1990),
review denied (Minn. September 28, 1990) (complaint must be entirely unfounded
before it is proper to award attorney fees based upon making a frivolous or
bad faith claim.)
SOURCE Coalition for a Democratic Workplace
