Local Union Officers Election Guide 2002
CHAPTER
ONE: APPOINTING JUDGES OF ELECTION AND
BEGINNING THE
ELECTION PROCESS
Section 1: Appointing the Judges of Election
Requirements
Section 2: Beginning the Election Process
Requirements
Suggestions
Frequently Asked Questions
Section 1: Scheduling the Nomination Meeting and Notifying the Members
Requirements
Suggestions
Frequently Asked Questions
Section 2: The Nomination Meeting
Requirements
Suggestions
Frequently Asked Questions
CHAPTER THREE: SCHEDULING THE ELECTION
Requirements
Suggestions
Frequently Asked Questions
Requirements
Suggestions
Frequently Asked Questions
Section 1: General Campaign Rules
Requirements
Suggestions
Frequently Asked Questions
Section 2: Distributing Campaign Literature
Requirements
Suggestions
Frequently Asked Questions
Section 3: Inspecting the Membership List
Requirements
Suggestions
Frequently Asked Questions
Section 4: Union and Employer Funds
Requirements
Suggestions
Frequently Asked Questions
CHAPTER SIX: THE RIGHT TO VOTE
Requirements
Suggestions
Frequently Asked Questions
Section 1: The Notice of Election
Requirements
Suggestions
Section 2: Ballots
Requirements
Suggestions
Frequently Asked Questions
Section 3: The Polling Place
Requirements
Suggestions
Frequently Asked Questions
Section 4: Watchers
Requirements
Suggestions
Frequently Asked Questions
Section 5: Counting Ballots
Requirements
Suggestions
Frequently Asked Questions
CHAPTER EIGHT: HANDLING PROBLEMS AND COMPLAINTS
Suggestions
TABLE OF AUTHORITIES
APPOINTING JUDGES OF
ELECTION
AND
BEGINNING THE ELECTION PROCESS
If you think of the
election process as occurring in various stages and understand your
responsibilities at each stage, the entire process becomes more manageable. At this early stage, good planning and
organization are key.
SECTION 1:
APPOINTING THE JUDGES OF ELECTION
REQUIREMENTS
q
The Judges of Election
must be appointed prior to the Nomination Meeting by the Local Union's Executive
Board. ULUC Article VI, Section
1(c). In the Matter of Local
137, IHO Order and Memorandum, 98-37P (September 28, 1998), and In the
Matter of LIUNA Local 304, IHO Order and Memorandum, 95-26P (October 26,
1995).
q
The Judges of Election
cannot be candidates for office, but they must possess all the requirements to
be a candidate for office. ULUC
Article V (See p. 17 of this Election Guide). The exception to this rule is that
retired members may be appointed to serve as Judges of Election. ULUC Article VI, Section 1(c). The IHO has ruled that there cannot be a
waiver of the prohibition against a Judge of Election running as a
candidate. In the Matter of
Local Union 646, IHO Order and Memorandum, 95-19P (December 1,
1995).
q
The Judges of Election
do not have to be paid for their services; however, if a salary or other
compensation such as "lost time" is to be paid, it must be fixed prior to the
nominations. Note that adjustments
to salary during the period of service as an officer must be made in accordance
with ULUC Article VI, Section 1(d).
SECTION 2:
BEGINNING THE ELECTION PROCESS
REQUIREMENTS
A.
Determine Your Election Responsibilities:
q
After being selected,
meet to discuss your roles as soon as possible.
q
Select a chairperson or
leader if one is not already designated.
q
If none of the Judges of
Election has ever conducted an election, contact former Judges of Election from
your Local Union to discuss their experiences, both positive and
negative.
B.
Review the Following Materials:
q
The ULUC and EDP,
especially those provisions dealing with good standing, voter and candidate
eligibility, notices to the membership, and any other officer election
requirements. Each Judge of
Election should have a copy of the ULUC and the EDP to refer to as necessary
throughout the election process.
q
Notices of election,
ballots, tally sheets, and any correspondence used in your Local Union's prior
elections which may serve as models to use in this
election.
q
The sample letters,
notices, ballot, tally sheets, and other nomination and election materials
included in the index of this Guide which may be adapted for use in your Local
Union's election.
C.
Meet with Current Officers
q
Advise current officers
of the need for their cooperation and support. Make clear that you must remain
impartial and will not provide any special
information, special privileges, or considerations to the current
officers not otherwise available to the membership.
q
If problems occurred in
the Local Union's last nominations and election, ask the current officers for
recommendations about how to avoid these problems in the upcoming election. For example, if the polling place used
in the last election was not reasonably accessible to all those who voted,
consider a different site.
q
Determine which election
responsibilities, such as updating the membership address list and mailing the
election notices, will be handled by the Local Union officers and/or staff. Note that ULUC, Article VI, Section 2(j)
provides that the Secretary-Treasurer is ultimately responsible for ensuring
that the notices are mailed.
q
Have prepared an
up-to-date list of Local Union members eligible to vote, which is current as of
30 days prior to election.
D.
Schedule the Election
q
At the May meeting, the
membership must determine and fix the date on which the election will be
held. ULUC Article VI, Section
2(j).
q
Select polling
location(s) and establish voting hours which provide a reasonable opportunity
for all members to cast ballots.
Just because a site was used in prior elections does not necessarily mean
it is suitable.
q
Develop a detailed
timetable which lists all important election-related dates and deadlines. Consult the Election Planner on page G-1
in Appendix G. By starting with the
election date and working backward, you can establish the dates of all major
events such as the posting/mailing of the nomination notice, the nomination
meeting, nominee acceptance deadline, mailing of the election notice,
preparation and printing of ballots, and the ballot tally. After the timetable is established,
decide which Judge of Election will be responsible for completing the various
tasks outlined in the Election Planner.
SUGGESTIONS
·
Keep notes, copies of
election materials, and records of decisions and actions taken throughout the
nomination and election process.
These records will refresh your memory in the event of a protest and may
serve as a guide for future Judges of Election.
·
Meet regularly to: (1) confirm that all required tasks are
being completed; (2) discuss problems and concerns; and (3) ensure you
understand your individual role and responsibilities.
·
Encourage candidates,
observers, and members to raise any questions or problems about nomination or
election procedures as soon as possible so that you have a chance to remedy any
problems or make any necessary changes in the election procedures. Advising all candidates of your
decisions in a timely manner will reduce the possibility of an election
protest.
·
Treat all candidates
equally and avoid even the appearance of improper conduct. Although you might be able to separate
your personal friendships from your official duties, socializing with candidates
might indicate to the members that you are not as impartial as your duty
requires you to be. Being a good
Judge of Election might not win you a popularity contest, but it will make the
Local Union a stronger and more democratic organization.
·
Compensation for the
judges of election should be reasonable in light of the services to be
performed. If compensation is
unduly high, it may give the impression that the judges are being given payment
to favor the incumbent officers.
·
Always err on the side
of caution.
FREQUENTLY ASKED
QUESTIONS
1.
Can there be more than three (3) Judges of Election?
Yes. The ULUC Article VI, Section 1(c)
specifies three Judges of Election because experience has shown that this number
is sufficient to ensure a fair election process. If a Local Union feels that more Judges
of Election are absolutely necessary to preserve the fairness of the election,
however, it may appoint more judges.
In the Matter of Local 423, IHO Order and Memorandum, 98-27P (July
7, 1998). A variance from the
General President must be obtained if you choose to appoint more than three (3)
Judges of Election.
NOTE: If a Local Union is unable to retain
three (3) Judges of Election, a variance should also be sought from the General
President.
2.
Can a member serve as a Judge of Election if he or she is related to any
of the candidates of office?
There is no rule
prohibiting a Judge of Election from being related to a candidate. You are cautioned, however, that this
may create the appearance of a conflict of interest unless extreme care is taken
to show impartiality. Thus, where
possible, it would be the better practice not to permit the brother, son, uncle,
spouse, etc. . . of a candidate to serve as a Judge of Election. In the Matter of Local 1089, IHO
Order and Memorandum, 97-12P (March 13, 1998); and In the Matter of Local
1359, IHO Order and Memorandum, 98-50P (September 19, 1998). In the Matter of Local 652, IHO
Order and Memorandum, Nos. 96-13P, 96-61P, 96-62P (December 6,
1996).
3.
Can the Local Union's Executive Board appoint a new Judge of Election if
another Judge of Election is unable to perform his or her
duties?
Yes. Circumstances do arise that are beyond a
Judge of Election's control, and such events should not derail an election
process that has already started.
When an appointed Judge of Election becomes unable to serve due to
unforeseen circumstances, a new Judge of Election may be appointed to replace
him or her. Remember, the
replacement Judge of Election must meet the qualifications for office set forth
in the ULUC, Article V. In
addition, if a qualified replacement is not available or appears to be
unnecessary under the circumstances, the Local Union may seek a variance from
the General President to operate with fewer than three (3) Judges of
Election. In the Matter of Local
1359, IHO Order and Memorandum, 98-50P (September 19,
1998).
4.
Can an incumbent member of the Executive Board serve as a Judge of
Election?
Yes, however, the
incumbent union officer must not be a candidate in the upcoming election. In the Matter of Local 1089, IHO
Order and Memorandum, 97-12P (March 13, 1998). That is, the Officer must not be a
candidate for re-election to the Executive Board. In the Matter of Local 1101, IHO
Order and Memorandum, 96-90P (February 20, 1997).
NOMINATIONS
Federal law requires
that members be given a reasonable opportunity to nominate the candidates of
their choice. The Judges of
Election must provide a timely notice of nominations and must use procedures
which give all members a reasonable opportunity to make
nominations.
SECTION
1:
SCHEDULING THE NOMINATION MEETING AND NOTIFYING THE MEMBERS
REQUIREMENTS
q
The Nomination Meeting
must be held not less than ten (10) days nor more than twenty (20) days prior to
the regular meeting of the Local Union in May of the election year. ULUC Article VI, Section
1(a).
q
Notice of the Nomination
Meeting must be dated and
mailed to each member in good standing at his or her last known
address no less than seven (7) days prior to the meeting. ULUC Article VI, Section 1(b). Notices must be mailed to sick,
laid-off, or other non-working members who are otherwise members in good
standing.
The nomination notice
must identify the offices and positions to be filled in the election, including
delegate positions (if applicable). *
The notice must also specify that the Business Manager is a delegate to
the District Council by virtue of having been elected to that office. It should also include the date, time,
place, and method for submitting nominations. ULUC Article VI, Section 1(b); 29
C.F.R. §
452.56.
q
In the event there is no
contest for any office and the candidates are found properly qualified, the
Judges of Election shall certify to the May meeting that there is no need for a
secret ballot election, and the nominees shall be declared duly elected. ULUC Article VI, Section
2(e).
SUGGESTIONS
·
The nomination notice
could, but is not required to, provide information about the term of office,
instructions for making and accepting nominations, and eligibility requirements
for candidates and nominators, including eligibility requirements which have
been waived or changed pursuant to a variance granted by the General President
or an order of the Independent Hearing Officer.
*
See, Uniform Local District Council Constitution, Article IV, Section 3,
page 115 to determine if your Local Union is entitled to District Council
delegates and, if so, how many.
·
Obtain a copy of the
nomination notice used for your Local Union's most recent election. If this notice contains the required
information, the Judges of Election may wish to follow the same
format.
·
Retain a copy of the
nomination notice for at least one year after the election and keep a record of
the date it was distributed to the membership. Federal law requires that all ballots
and all other records pertaining to the election be preserved for one year. 29 C.F.R. 452.106.
·
Mail nominating
instructions with the nominations notice which clearly explain the requirements
for office and the requirements to nominate a candidate.
FREQUENTLY ASKED
QUESTIONS
1.
Should a notice be mailed to a member who is deemed suspended due to
nonpayment of dues?
A notice is not
required, but if a notice is given to some delinquent or suspended members, it
must be given to all.
2.
What time period does a member have to rectify his or her
standing?
LIUNA members must pay
dues by the close of business on the last day of the second month after the due
date of the dues payment.
NOTE: The Independent Hearing
Officer has recognized the mail-in exception used by the International
Union. If dues are paid by mail and
the payment is postmarked on or before the last day that dues may be paid, the payment
will be considered to be timely.
In the Matter of Local 1089, IHO Order and Memorandum, 97-12P
(March 13, 1998).
SECTION
2:
THE NOMINATION MEETING
REQUIREMENTS
1.
Qualifications of the Nominator
q
A candidate must be
nominated by another member in good standing. ULUC Article VI, Section 1(f). Please note that good standing in this
context requires only good standing at the time of making the nomination, rather
than the two (2) years of good standing required to run for
office.
q
The nominator's good
standing status must be determined at the nomination meeting in order to allow
an eligible nominator the opportunity to make the nomination if the original
nominator is not in good standing.
q
The nominee must be
present at the time of nomination, unless absent from the meeting on business of
the Local Union, for the District Council, or for the International Union, or
excused for just cause by a vote of the membership of the Local Union. Unexcused absence from a nomination
meeting shall serve to disqualify such member from any subsequent nomination in
the same election. ULUC Article VI,
Section 1(f).
q
If a nominator is not in
good standing, disqualify the nominee and reopen nominations for that
office.
2.
Nominee Protocol
q
Once a nomination is
accepted, the nominee has no right to withdraw his or her candidacy prior to the
election. Upon nomination, a
nominee must indicate immediately whether he or she accepts or declines the
nomination. ULUC Article VI,
Section 1(f). Of course, to appear
on the ballot a nominee who has accepted must still meet the with the Judges of
Election in order to be qualified.
q
No member may be a
candidate for more than one office, except where a combination of offices has
been approved by the General President.
ULUC Article VI, Section 1(g).
q
For further discussion
regarding qualifications of the candidate, See Chapter 4 of this
Guide.
3.
The Nominations Process
q
Each member shall have
the right to participate in the democratic decisions of the Union. Subject to reasonable rules,
regulations, and qualifications as provided by the Uniform Local Union
Constitution, each member in good standing shall have the right to nominate
officers. Ethical Practices Code,
Democratic Practices, Section 1.
q
A Local Union must have
the following officers and positions:
President, Vice President, Recording Secretary, Secretary-Treasurer,
Business Manager-Delegate, Sergeant-at-Arms, Auditors (3), Executive Board
Members, and Delegate(s) to the District Council (if applicable). ULUC, Article
IV, Section 1. Nominations must be
made in the above order. ULUC,
Article VI, Section 1(g).
NOTE: Remember that
nominations also must be made for any delegate positions to be filled in
addition to Business Manager-delegate.
q
Nominations must be made
for all offices or positions to be filled.
ULUC Article VI, Section 1(a).
q
No quorum requirement
may be imposed upon the Nominations Meeting.
q
During nominations, when
the office of President is being nominated, the chair should be handed to
another officer to conduct nominations.
q
When the nominations
have been completed, the Chairperson of the meeting must state that the
Constitution requires all candidates to appear before the Judges of Election,
who must then examine them to determine whether or not each candidate possesses
all of the qualifications required to hold office. ULUC Article VI, Section 2(c). The Judges of Election must then
announce the time and place when such examinations will be made. ULUC Article VI, Section 2(b). Candidates are required to appear at
such time and place and be examined unless absent on business of the Local
Union, for the District Council, or for the International Union, or excused for
just cause by the Judges of Election.
ULUC Article VI, Section 2(c).
If the candidate is absent for any of the above-mentioned permissible
reasons, the candidate and the Election Judges must promptly schedule an
alternate time and place so the candidate can be examined as to his or her
qualifications. ULUC Article VI,
Section 2(c).
q
If a nominee is
unopposed after the Union has provided reasonable opportunity for nominations,
the Union does not have to include that position on the ballot, inasmuch as
write-in votes are not permitted by the ULUC, Article VI, Section 3(h). (If nominees for all offices are
unopposed under these circumstances, no election is
necessary.)
q
Make certain, prior to
the nominations, of the exact number of Delegates to the District Council
the Local Union is entitled to.
In the Matter of Local 292, IHO Order and Memorandum, 95-4P
(November 9, 1995) (where the Local voted for 3 delegates, but was only entitled
to two).
q
The salary and
compensation of Local Union officers must be established prior to
nominations. ULUC, Article VI,
Section 1(d). Keep in mind that
compensation includes items such as
vacation leave, sick leave, access to an automobile, and other benefits, and
must be set before nominations as well.
SUGGESTIONS
·
Keep a complete and
accurate list of the name of each nominee, the office to which nominated, and
the person making the nomination.
·
Although not required,
in the interest of promoting a fully informed membership consider indicating on
the ballot any candidates who ran
unopposed and the offices to which they were elected.
FREQUENTLY ASKED
QUESTIONS
1.
Can a member nominate himself/herself?
No. The ULUC, Article VI, Section 1(f),
clearly states that “[a]ll members nominated shall be nominated by another
member in good standing. . ."
(emphasis added).
2.
Can offices be combined?
Sometimes. The General President has the authority
to grant variances and tolerances from specific provisions of the LIUNA
Constitutions if he believes it necessary to fully accomplish an object or
purpose of LIUNA or of its affiliates.
IUC, Article IX, Section 11(b).
Thus, if a Local Union believes that a combination of offices is
reasonable and necessary, it must obtain express consent from the LIUNA General
President in writing. In the
Matter of Local 220, IHO Order and Memorandum, 96-72P (November 22, 1996)
describes the process for properly seeking a combination of offices. A variance that was granted to allow
a combination at a prior election is invalid and has no effect for a subsequent
election.
3.
Can a Local Union decide not to fill one or more of the offices listed in
ULUC Article IV, Section 1?
No. In order to be relieved of the
requirement to fill any office, a Local Union must obtain a written variance
from the LIUNA General President.
For example, where a Local Union membership voted not to elect Auditors,
the Independent Hearing Officer determined that this Constitutional requirement
could not be avoided without a prior variance from the General President. In
the Matter of LIUNA Local 1036, IHO Order and Memorandum, 95-27P (November
20, 1995).
NOTE: With respect to
Delegates to the District Council, however, in In the Matter of Local
1101, IHO Order and Memorandum, 96-90P (February 20, 1997), the Independent
Hearing Officer found that it was acceptable to vote to have fewer than the
required number of delegates to the District
Council.
4.
Can a candidate running for Business Manager separately run for District
Council delegate?
No. The Business Manager is a delegate to
the District Council by virtue of his office. ULUC Article IV, Section
4(e)(11). Therefore, if the
candidate were allowed to run for both Business Manager and delegate, and won
both, he would hold two delegate positions. A member can be a candidate for both
delegate and a Local Union office other than Business Manager, however, as the
delegate position is not considered an office under the ULUC. In the Matter of Local 762, IHO
Order and Memorandum, 97-47P (January 27, 1998) and In the Matter of Local
942, IHO Order and Memorandum, 96-19P (October 25,
1996).
NOTE: If a Local Union has
permitted the President or Secretary-Treasurer of the Local Union to be seated
as a delegate to the District Council by virtue of that office, the candidate
for President or Secretary-Treasurer may not also run for delegate, for the same
reason. In the Matter of Local
652, IHO Order and Memorandum, Nos. 96-13P, 96-61P, 96-62P (December 6,
1996).
5.
Can retired members nominate candidates for Local Union
office?
Yes, as long as they are
still members in good standing.
Retired members have a strong interest in having their voices heard in
Union affairs, which directly affect them and should be allowed to participate
fully in the democratic process.
Retired members cannot, however, run for office
themselves.
6.
Is an exact amount required when setting the salary and other
compensation of Local Union officers?
Yes. The compensation must be capable of
precise verification. For example,
it is permissible to decide that officers will receive wage plus $2.00 because
this amount is capable of precise determination.
NOTE: Vacation time, sick leave, automobile
privileges and other benefits are considered compensation pursuant to General
Executive Board Policy.
7.
Must the ULUC's provisions concerning the nomination meeting be read to
the members at the meeting?
There is no such
requirement in the ULUC. In the
Matter of LIUNA Local 837, IHO Order and Memorandum, 95-08P (June 28,
1995). If the Judges of Election
feel the circumstances warrant it, however, you may read the relevant provisions
to the members in order to familiarize them with the nominations
process.
8.
If a member accepts a nomination for one office, can he or she later
withdraw his or her acceptance if another member wants to nominate him or her
for a subsequent office?
No. Once a member accepts nomination for one
office, he or she cannot accept the nomination for another office. In the Matter of LIUNA Local 837,
IHO Order and Memorandum, 95-08P (June 28, 1995).
9.
If the Judges of Election disqualify a candidate, are nominations
reopened for that office or position?
Yes, but ONLY IF the
disqualification results in there being no candidate for that office or position
or, in the case of Executive Board Members, auditors or delegates to the
District Council, fewer candidates than there are positions to be filled. If nominations are reopened, the Judges
of Election must immediately examine the new nominees and make a report as to
their qualifications at the same meeting.
10. If a member
nominated as part of a "slate" is disqualified, must the Judges of Election
reopen nominations to fill the slate?
No. There is no provision in the LIUNA
Constitutions which entitle candidates to a full slate. In the Matter of LIUNA Local 304,
IHO Order and Memorandum, 95-26P (October 26, 1995).
11. Is a member
who has transferred into the Local Union from another LIUNA-affiliate eligible
to run in the next election?
A member who has
transferred his or her membership into another Local Union is not eligible to be
a candidate for office until he has been in continuous good standing for two
years. IUC, Article XXI, Section
5.
NOTE: If a Local Union is
newly chartered, (for a period of less than two years), the “Qualifications for
Office” provisions of ULUC, Article V, do not apply. With regard to merged Local Unions, good
standing membership in the former Local Union satisfies the good-standing
requirement in ULUC, Article V, Section 1.
12. What is the
process for members to nominate a “slate” of officers?
As stated above, the
LIUNA constitutions do not directly address the issue of slate voting. For the purposes of nominations,
however, the Constitution provides that “[n]ominations shall be made in the
following order: President, Vice President, Recording Secretary,
Secretary-Treasurer, Business Manager/Delegate, Sergeant at Arms, Auditors . .
.” ULUC Article VI, Section
1(g). Accordingly, members of a
particular slate should be nominated individually, during the period of time
where nominations are open for that particular office. (For information about how to identify a
slate of officers on a ballot, See Chapter 7 of this Guide under
Frequently Asked Questions).
NOTE: While slate voting is
permissible, the balloting must allow members to vote for the candidates of
their choice. Thus, the voter must
be able to choose among individual candidates if he does not wish to vote for an
entire slate and the voting instructions must clearly state that the
voter need not vote for an entire slate.
See 29 C.F.R. 452.112.
SCHEDULING THE
ELECTION
The election must be
scheduled at a time and place which ensures that all members have a reasonable
opportunity to vote.
Reasonableness is the key word. The Local Union is not expected to
accommodate the individual schedules or locations of each and every member. Frequently, what is reasonable depends
upon the particular characteristics of the Local Union such as geographic
jurisdiction or work schedules of the membership.
REQUIREMENTS
q
The date of the election
must be set by the Local Union membership.
The membership must also determine the location and the hours during
which the polls will remain open.
These decisions must be made at the regular meeting of the membership in
the month of May, following the nomination meeting. See ULUC Article VI, Section
2(j).
q
There must be at least
fifteen (15) days between the mailing of the election notice and the date of
election. See ULUC Article
VI, Section 2(j).
SUGGESTIONS
·
Consider using more than
one polling place if the membership is spread over a wide geographic area. The election can be held over a two-day
period, so all the Judges of Election can be present at both polling sites. See also Frequently Asked
Questions below.
·
If the election takes
place at more than one location, the Judges of Election should take caution to
ensure the secured custody of the ballot box. For example, when the ballot box leaves
the first location, the box should be sealed in the presence of all candidates
and watchers, and each Judge of Election should sign across the seal. At the second voting location, the
candidates and watchers should also be present when the ballot box is
opened.
·
If your Local Union has
members that work different shifts, the polling place(s) should be open long
enough to accommodate such schedules.
Be reasonable and consider how long it would take most members to get to
the polling site either before or after their work shifts.
·
If a substantial portion
of the Local Union membership is non-English speaking, prepare all notices
regarding the election in the appropriate native language except as otherwise
proscribed by law. English is the
official language of the International Union, International Union Constitution,
Article XXIV, Section 4. The
Independent Hearing Officer and some federal courts have ruled, however, that
failure to provide bilingual election information may preclude the required
reasonable opportunity to participate in the election process and may result in
a rerun.
FREQUENTLY ASKED
QUESTIONS
1.
In what month is the election normally held?
The membership must set
the date of the election at the May meeting. ULUC Article VI, Section 2(j). The election need not be held in May,
however. In fact, depending on when
the May meeting is held, holding the election in May might not be adequate time
for election campaigning and preparation.
In most cases, the election is held in the month of
June.
2.
What is reasonable in terms of polling hours and polling
sites?
The statutory protection
of the right to vote implies that each union member should have a reasonable
opportunity to vote. Thus, the
local union is obligated to conduct its election of officers in such a way as to
afford all its members a reasonable opportunity to cast ballots. What is “reasonable” may depend on
factors such as the distance between the members’ work sites or homes and the
polling place, the means of transportation available, the nature of the members’
occupations, and their hours of work.
(29 C.F.R. § 452.94).
Accordingly, if your
Local Union has a widespread membership, use of only one polling place may be a
violation of the requirement to give all members a reasonable chance to
vote. For example, use of one
polling site, located a great distance from many work sites, where mail
balloting had been an option, led the Independent Hearing Officer to conclude
that Union members had not received a reasonable opportunity to vote. In the Matter of Local 576, IHO
Order, 00-22P (May 26, 2000); In
the Matter of LIUNA Local 784, IHO Order and Memorandum, 97-02P (April 3,
1997), citing Donovan v. Local 41, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen, and Helpers of America, 598 F. Supp. 710, 716-717
(W.D. Mo. 1984). In another case,
the Department of Labor vacated an election where the polls were open for only
two and a half hours after members' normal working hours and some members worked
from 60 to 125 miles from the polling site. In the Matter of LIUNA Local 784,
IHO Order and Memorandum, 97-02P (April 3, 1997), citing Hodgson v.
Carpenters, Local 2287, Office of Labor-Management Standards No. 63-5616-7
(1970). In another LIUNA case,
In the Matter of LIUNA Local 1278, IHO Order and Memorandum, 97-29P
(October 2, 1997), a Local Union used only one polling place, open from 11:00
a.m. until 7:00 p.m., on a working day, where many members were located as far
away as four hours by car. The
Independent Hearing Officer determined that this arrangement did not give all
the members a reasonable
opportunity to vote. If your Local
Union covers a wide geographic area, you might consider using multiple polling
places, and/or holding the election on a Saturday, so it will not conflict with
members' work schedules as much. In
contrast, the Independent Hearing Officer in In the Matter of Local 137,
IHO Order and Memorandum, 98-37P (September 28, 1998), found that nine (9) days
of voting at 25 sites is quite reasonable.
These are decisions which must be made based on the particular
circumstances of your Local Union.
NOTE: Keep in mind that if
multiple polling places are used, a Judge of Election should be present at each
one.
3.
May a Local Union use mail-in balloting?
Although Article VI,
Section 3 of the ULUC requires in-person balloting, where a Local Union governs
a wide geographic area, a request for a variance to use a mail-in ballot may be
granted if a need to do so is demonstrated to the LIUNA General President. Only the LIUNA General President may
grant a variance to use a mail-in ballot.
In the Matter of Local 5, IHO Order and Memorandum, 00-12P (May 5,
2000); In the Matter of LIUNA
Local 609, IHO Order and Memorandum, 95-15P (September 19, 1995). If your Local Union receives such a
variance from the General President, you will receive written guidance at that
time. There is no obligation
to use mail-in ballots. The
Constitution and the LMRDA only require that members are given a "reasonable
opportunity" to vote. In
the Matter of Local 724, Order and Memorandum Regarding Reconsideration,
98-53P (December 9, 1998). A
variance granted to allow the use of a mail-in ballot in a particular election
will not carry over to any subsequent election, that is, a new variance must be
obtained.
THE
CANDIDATES
As a Judge of Election,
you must determine whether a candidate is eligible to run for office. Making this determination will probably
be one of your most important tasks, sometimes requiring you to make difficult
judgments. Article V of the ULUC
sets forth the qualifications for candidacy. While your personal judgment is a valid
part of a determination as to eligibility, you are cautioned that any error may
damage the integrity of the process.
If an eligible member of your Local Union is erroneously determined to be
ineligible to run for office (or if an ineligible person is allowed to run), the
election might be successfully challenged even if every other aspect of the
election process was done correctly.
REQUIREMENTS
1.
Procedural Rules
q
Each member in good
standing, subject to the reasonable rules, regulations and qualifications of the
LIUNA Constitution, shall have the right to run for office. Ethical Practices Code, Democratic
Practices, Section 1. The rules for
conducting a Local Union election and candidate qualifications are set forth in
ULUC, Article V.
q
In order to run for
office, a member must:
(a) have
been in good standing with LIUNA for two years prior to the
nomination;
(b) have
been in good standing with the Local Union for two years prior to the
nomination;
(c) shall
be a lawful permanent resident and shall be lawfully employable under the laws
of the United States and Canada;
|
NOTE: To be eligible to run for office, each candidate must present one (1) of the following:
* Any questions regarding other qualifying documents should be directed to Associate General Counsel Stephanie McCarthy @ 202-942-2238. |
(d) be
literate; and
(e) have
been working at the calling the entire year immediately prior to the
nomination. ULUC, Article V,
Sections 1-4.
q
Candidates are required
to appear before the Judges of Election, who shall then examine them to
determine whether or not each candidate possesses all of the qualifications
required to hold office. ULUC
Article VI, Section 2(c); In the Matter of Local 516, IHO Order and
Memorandum, 00-32P (July 7, 2000).
Failure to appear before the Judges of Election at the scheduled time
will result in the nominee’s disqualification unless he or she is absent on
business for the Local Union, for the District Council or for the International
Union, or excused for just cause by the Judges of
Election.
q
A Local Union cannot
enforce newly adopted restrictions even if duly enacted and added to the LIUNA
Constitution, or granted by variance from the General President, which the
members had no opportunity to satisfy.
29 C.F.R. § 452.54. Thus, if the Local Union enacts a new
rule two months before the election that requires all candidates to have
attended at least half the meetings in the past year, the Local Union cannot use
this to bar members from candidacy, even if properly enacted by obtaining a
variance from the General President.
Members must have an opportunity to comply with such requirement prior to
its effective date.
q
Members whose dues have
been checked off by the employer may not be disqualified because of a delay or
failure by the employer to send dues to the Local Union. A member on checkoff who has no earnings
from which dues can be withheld may be held responsible for paying dues directly
to the Local Union in order to remain in good standing. LMRDA Section
401(e).
q
Eligibility for a
general office, such as President, may not be limited to a particular branch or
segment of the Local Union (based, e.g., on geographic, craft or
shifts). 29 C.F.R. § 452.43. For example, if a Local Union represents
a unit of trash haulers, a unit of heavy highway workers, and a unit of public
service employees, the Local Union may not require that any candidate for
President be part of the heavy and highway unit. This rule also applies if a Local Union
represents workers in the same line of work but for several different
employers. If the Local Union
represents trash haulers at Employer A, Employer B, and Employer C, it may not
require that the Local Union President be a part of the Employer A
unit.
q
A Local Union may not
impose candidate eligibility requirements based on race, color, sex, religion,
or national origin. 29 C.F.R. §
452.46.
q
A Local Union may not
impose candidate eligibility requirements which would require candidates
to: pay a filing fee (29 C.F.R. §
452.52); make a declaration of candidacy several months in advance of the
nomination meeting (29 C.F.R. §
452.51); or have prior service in an office of the Local Union (29 C.F.R. §
452.40).
2.
The Candidate is Disqualified If:
q
He or she has been
debarred after trial by the Local Union (or LIUNA) from holding office, and the
period of debarment has not ended.
q
He or she is a member or
sympathizer of any organization that has for its purpose the overthrow of LIUNA
or the United States or Canadian governments. ULUC Article V, Sections 5 and
6.
q
He or she has been
convicted of certain crimes, in which case he or she cannot hold office for
thirteen years following conviction or the end of imprisonment, whichever is
later. Among the convictions which
provide grounds to bar a person from candidacy are robbery, bribery, extortion,
embezzlement, grand larceny, burglary, arson, violations of narcotics laws,
murder, rape, assault with intent to kill, assault which inflicts grievous
bodily injury, or a violation of Title II or III of the LMRDA, any felony
involving abuse or misuse of such person's position or employment in a labor
organization or employee benefit plan to seek or obtain an illegal gain at the
expense of the member of the labor organization or the beneficiaries of the
employee benefit plan, or conspiracy to commit any such foregoing crimes, or a
crime in which any of the foregoing crimes is an element. LMRDA Section 504. The court which sentenced the person for
such a conviction may shorten this thirteen year period, if the person requests
the court to do so. LMRDA Section
504. (See Frequently Asked
Questions for more on this subject).
NOTE: If you are aware that a
candidate has been convicted of a crime, you are strongly advised to seek advice
from the International Union.
q
He or she is a
supervisor on a permanent basis for his or her employer. 29 C.F.R. § 452.46. This is to ensure that a Local Union
officer has no conflict of interest.
An elected officer must be a zealous proponent of the Local Union's
interests, while a supervisor is expected to be an advocate of the employer's
interests. These two goals have the
potential to conflict with one another.
NOTE: This determination is
also difficult and you are advised to seek advice from the International Union
if you are faced with this situation.
3.
Good Standing
q
In determining the
2-year good standing requirement, credit must be given for prior membership in
another affiliated Local Union to any member who was involuntarily transferred
into the Local Union. 29 C.F.R. §
452.37. For example, if Local A was
merged into Local B a year ago, and John Jones, who was a member in continuous
good standing of Local A for many years, is nominated for Local B office, he
must be given credit for his time in Local A in fulfilling the requirement of
two years of good standing in Local B.
If this were not done, those Local B members who came from Local A would
not have an equal voice in Local B.
4.
Working at the Calling
q
A candidate must have
been "regularly working at the calling" during the entire year immediately prior
to nomination. ULUC Article V,
Section 4, "Working at the calling" shall be defined to
include:
(a)
employment for which the Local Union serves, or is actively seeking to
serve, as the exclusive collective bargaining representative of
employees;
(b)
employment in a full-time official capacity for the Local
Union;
(c)
employment by the government or the trade union movement in a capacity
directly related to the calling and one which would directly benefit the Local
Union and its members EXCEPT that employment by the Local Union in a clerical or
administrative decision position shall not be deemed to be "working at the
calling"; See, In the Matter of Local 225, IHO Order and
Memorandum, 00-15P (May 26, 2000) (Local Union administrative assistant who was
a member of the Local deemed unqualified).
NOTE: Members who are
employed in clerical or administrative positions and who are therefore
ineligible to run as candidates for office
nevertheless retain their rights as members to participate in the affairs
of the Union, including campaigning activities, to the extent permitted by
applicable law.
(d)
periods of unemployment where the member was available for and
continuously and actively sought employment at the calling which shall be
understood as full compliance with the lawful rules of the referral service or
hiring hall rules, if any, operated by the Local Union;
and
(e)
members who can prove they were unable to work because of temporary
illness or disability of less than one year so long as the member has a
reasonable expectation of returning to work in the foreseeable
future.
q
In examining the
circumstances of each particular case, due regard shall be given to the good
faith involved. ULUC, Article V,
Section 4(e). See,
e.g., In the Matter of Local 270, IHO Order and Memorandum,
99-53P (July 7, 2000) (Six month vacation taken by member in year preceding
election in order to spend time with his family was unreasonable length of
absence and not a good faith effort to work at the calling); See also,
In the Matter of Local 270, IHO Order and Memorandum, 99-53P (August 1,
2000).
SUGGESTIONS
·
Carefully review the
ULUC candidate eligibility requirements at Article V prior to the nomination
meeting.
·
Maintain reliable
records to verify that each nominee meets or fails to meet the candidacy
requirements.
·
If your Local Union has
requested and received a variance from the General President concerning an
eligibility requirement, you should see to it that all members are notified of
this decision in the nomination notice.
·
Upon making a final
determination on eligibility, notify each candidate in writing of the
determination. Ineligible
candidates should be notified of the specific reason(s) why they were deemed to
be ineligible.
·
Keep a written record
documenting the reasons for all determinations.
FREQUENTLY ASKED
QUESTIONS
1.
Are the crimes listed by the LMRDA prohibiting a person from holding
office the only crimes which can bar a person from office?
No. Those examples are not the only crimes
that can bar a person from candidacy.
Convictions for offenses involving similar conduct will also disqualify a
member from holding office. For
example, where a union member was convicted under an intimidation statute of
assault, but not assault as explicitly defined in LMRDA Section 504, the Court
found that the member would still be disqualified from office under the facts of
the case. United Union of
Roofers, Etc., No. 33 v. Meese, 823 F.2d 652 (1st Cir.
1987). Moreover, a member suspended
under the Ethics and Disciplinary Procedure, either as a result of a felony
indictment or for other disciplinary charges, has been held by the IHO not to be in good standing for purposes
of eligibility for office. In
the Matter of Local Union 310, IHO Order and Memorandum, 95-14P (October 17,
1995).
NOTE: If there is a question as to whether a
person's past criminal acts should be grounds for barring that person from
office, contact the Inspector General's office or the LIUNA Legal Department for
guidance. Willful violation of this
prohibition is in itself a crime under LMRDA Section 504(b); therefore, its
requirements should be taken very seriously. In the Matter of Local Union 646,
IHO Order and Memorandum, 95-19P (December 1, 1995) (where a member convicted of
the felony of possession of marijuana was barred under the
statute).
2.
If a member would like to protest the qualifications of a nominee, may
the complaining member be present at the qualification meeting with the nominee
and the Judges of Election to voice his concerns?
Article VI, Section 2(d)
of the ULUC provides that any member wanting to protest the qualifications of
any candidate or who may have information regarding the qualifications of a
candidate may appear before the Judges of Election at the specified time and
place. But see, In the
Matter of Local 791, IHO Order and Memorandum, 96-22P (May 23, 1996) (where
the Independent Hearing Officer comments that no person other than the Judges of
Election may attend a qualification meeting).
3.
If a member has been suspended for late payment of dues within the past
two years, is that enough to make him ineligible for not being in "good
standing" for the two previous years?
Yes, it is provided that
this requirement is applied consistently to all similarly situated members. As part of the requirement that all
candidates be members in good standing for the two years previous to the
nomination, a member cannot be a candidate if he has been suspended for late
payment of dues in that time period.
There is an exception to this rule which has been recognized by
LIUNA: If dues are paid by mail and
the letter is postmarked on or before the last day that the dues may be paid,
the payment will be regarded as a timely payment even though the dues are
received after the cut off date.
This exception was created for those members who live long distances from
the union hall or are working and must make their payments by mail. There is no corresponding exception for
a late personal delivery, however.
For example, a member cannot get a money order dated the last day of the
month, personally deliver it to the union hall on the first of the following
month, and expect it to be accepted as timely. In the Matter of Local
1089, IHO Order and Memorandum, 97-12P (March 13, 1998); In the Matter of
Local 1278, 97-29P(1) (October 2, 1997); In the Matter of Local 718,
IHO Order and Memorandum, 97-19P (October 2, 1997) (not a member for 2 years as
required).
4.
If there is a question as to whether or not a member is retired, and thus
ineligible to hold office, what factors should the Judges of Election use to
make their determination of eligibility?
Article V, Section 11of
the ULUC provides that any person who receives a pension from a pension or
retirement fund related to the International Union or any affiliate thereof
shall be presumed to be a retiree and, therefore, not to be working at the
calling of the International Union and not to be qualified as a candidate for
office. The burden is on the
pension recipient to demonstrate affirmatively to the satisfaction of the Judges
of Election that the constitutional qualifications for office are otherwise
met. Relevant factors include
whether the nominee is receiving Social Security or disability; whether a
nominee pays full or reduced union dues; and whether a nominee has been working
at the calling as required by Article V, Section 4 of the ULUC. In the Matter of Local 942, IHO
Order and Memorandum, 96-58P (October 4, 1996). Evaluation of these factors should be
examined under a totality of the circumstances/good faith standard. See
also In the Matter of Local 17, IHO Order and Memorandum, 98-47P
(September 16, 1998); and In the Matter of Local 1101, IHO Order and
Memorandum, 96-90P (February 20, 1997).
The eligibility of a pensioner to run for office has sometimes been
misunderstood by the Judges of Election.
In the past, the Judges of Election would on occasion automatically
disqualify pensioners without examining whether the individual nonetheless was
working at the calling and met the other qualifications for office set out at
Article V, Section 10 of the Uniform Local Union Constitution. To address this problem, the
Constitution was amended at the 1996 Convention to clarify that pensioners who
satisfy the normal Constitutional requirements are eligible to run. The mere fact that a nominee is
receiving a pension from a LIUNA entity will not disqualify the individual from
running for office where the Judges of Election determine that the person
otherwise meet the Constitutional qualifications for
office.
5.
What factors should the Judges of Election consider in determining
whether a member is a "supervisor" and thus ineligible to hold
office?
The fact that a person
is designated as a "supervisor" at his job does not by itself bar that person
from running for Local Union office.
The test of whether a person is a part of management, and thus ineligible
to run for office, is whether his duties, his pay, and his role in the
management of the company indicate a conflict of interest between his
obligations to the employer and his obligations to the Local Union. For example, a member who held the title
of supervisor, but who remained on hourly wage, did not have authority to hire
and fire employees, and signed out of work list during seasonal lay off, was
found by the Independent Hearing Officer to be eligible to run for office. In the Matter of Local 527, IHO
Revised Order and Memorandum, 97-28P (April 27, 1998); In the Matter of Local
225, IHO Order and Memorandum, 00-30P (August 10, 2000) (“Watch Commander”
deemed to be “working at the calling”).
On the other hand, the IHO ruled that a member was not “working at the
calling” where his position as “Nighttime Superintendent”gave him authority to
make independent judgments in recommending that the employer hire, transfer,
suspend, layoff, recall, promote, discharge, assign, reward, discipline and
direct other employees in the interest of the employer, where the member’s
compensation was far in excess of the basic hourly wage, and he was permitted to
drive a company leased vehicle for business and personal use. In the Matter of Local 81, IHO
Order and Memorandum, 00-17P (May 30, 2000). The DoL has also issued regulations
under which a member can be denied the right to hold office if there is a
reasonable basis for assuming that the person would be subject to a conflict of
interest between carrying out his representative duties for the Union and
carrying out his duties as an employee/supervisor. 29 C.F.R. § 452.47. Again, this can be a difficult
determination, and the Judges of Election should seek advice from the
International Union.
6.
Can secretaries or administrators who have already held office since
before 1991 still run for office?
Yes. The International Union permits persons
who were grandfathered by the General Executive Board decision to run in
subsequent election for any office within the union. In the Matter of Local 343, IHO
Order and Memorandum, 98-54P (September 17, 1998).
At issue is the 1991
amendment to the Uniform Local Union Constitution, Article V, Section 4(c) which
provides that "employment by the Local Union in a clerical or administrative
position shall not be deemed to be `working at the calling.'" The General Executive Board clarified
this amendment at the August 17, 1992 Board meeting, stating that this provision
did not apply to secretaries/clericals who held office prior to when the
amendment passed in 1991. Since
some members in clerical or administrative positions have been long-time office
holders in their Local Union, the Board determined that they were entitled to
the benefit of the grandfather provision and are therefore deemed to be "working
at the calling." Once a person is
deemed to be "working at the calling" for purposes of any office, that person is
eligible to run for every office at any level in this Union. In the Matter of Local Union 81,
IHO Order and Memorandum, 97-25P (November 19, 1997).
7.
Can a member run for office while holding membership in another labor
organization?
There is no rule barring
a member of LIUNA, when unable to find work at the calling, from working at
another trade and belonging to another union, provided the member continues
actively to seek employment at the calling with LIUNA and accepts work when
offered. Generally speaking, if
work in a different union could be fairly characterized as the member's primary
occupation, then the member may be deemed ineligible to run for office in the
LIUNA Local Union. Please note, if
the member holds office in the other labor organization, he is ineligible
to hold office in a Laborers' Local Union, regardless of his or her other
qualifications. In the Matter of
LIUNA Local 50, IHO Order and Memorandum, 95-13P (September 19, 1995) and
In the Matter of Local Union 646, IHO Order and Memorandum, 95-19P
(December 1, 1995).
8.
Is a member "working at the calling" if he or she works for a non-union
company when unable to obtain employment with a LIUNA affiliated
company?
Yes, although this
practice is obviously frowned upon.
The member still must comply with the hiring hall rules of his or her
Local Union in order to be considered "working at the calling," however, In the Matter of Local 456, IHO
Order and Memorandum, 97-23P (March 31, 1998); and In the Matter of Local
493, IHO Order and Memorandum, 97-13P (March 2, 1998). The member may be viewed as not "working
at the calling" if he or she chooses to work non-union jobs instead of available
union jobs.
9.
Can a member be considered to be "working at the calling" if he or she
refuses to accept a hiring hall referral?
Only if the refusal is
reasonable in light of the circumstances.
For example, if the member refuses a few job referrals because they would
require travel of a great distance, that might be reasonable. See, In the Matter of Local
576, IHO Order and Memorandum, 00-22P (June 20, 2000). If a member consistently refuses
referrals for no good reason, or, in accordance with valid Hiring Hall Rules is
removed from the list, he or she can be deemed to be not "working at the
calling".
10. What types
of employment would satisfy the provisions of ULUC Article V, Section 4(c) that
classifies "employment by the government or the trade union movement in a
capacity directly related to the calling and one which would directly benefit
the Local Union and its members . . ." as "working at the calling"?
In the Matter of Local
1082,
IHO Order and Memorandum, 96-29P (August 29, 1996) discussed several past cases
where the LIUNA General Executive Board ("GEB") has addressed this issue. In 1977, a GEB Hearing Panel found a
member who had been employed as a full time organizer for the State Coalition of
Public Employees, an organization which worked directly in conjunction with the
LIUNA Regional Office, to be "working at the calling." A 1990 GEB Hearing Panel found a member
was "working at the calling" when he served as a full-time editor of an official
publication of the AFL-CIO, a publication that was funded through tax paid by
affiliated Unions, including the Local Union of which the editor was a
member. In 1982, the General
Executive Board found that a member's employment as the County Prevailing Wage
Coordinator qualified as "working at the calling." The position had been created by efforts
of the Local Building Trades Council.
Finally, in In the Matter of Local 1082, IHO Order and Memorandum,
96-29P (August 29, 1996), the IHO determined that a member who served as
President of the AFL-CIO's Metal Trades Council of Southern California was also
"working at the calling." Of
course, these examples are not the only types of jobs that could satisfy the
requirements of ULUC Article V, Section 4(c), but they do provide guidelines for
making decisions in individual cases.
Conversely, the IHO has ruled twice that employment as a site safety
manager or inspector is not “working at the calling” in that there is no LIUNA
Local Union which is actively seeking to serve as the exclusive bargaining
representative of site safety managers and such position does not advance the
union movement. In the Matter of
Local 79, IHO Order and Memorandum, 00-21P (May 26, 2000); In the Matter
of LIUNA Local 300, IHO Order and Memorandum, 95-23P (December 12,
1995). If you are unsure whether a
job description meets these requirements, you are advised to seek counsel from
the International Union.
11. If a member
has not worked at the calling for the entire year prior to the election, is his
simple claim that he was "disabled" adequate to fulfill the qualifications of
candidacy?
No. The member must give all available proof
that he was disabled, and thus unable to work. The IHO has found that a member who did
not provide any information about his claimed disability was disqualified from
running for office. In the Matter of Local Union 67, IHO Order and
Memorandum, 95-16P (October 4, 1995); and In the Matter of Local 1278,
97-29P(1) (October 2, 1997).
NOTE: A disabled member must still pay dues
during his or her period of disability.
In the Matter of Local 1278, 97-29P(1) (October 2,
1997).
12. What steps
should be taken if all the nominees for a certain office are found to be
unqualified?
If all the nominees are
later found to be unqualified for office, the Local Union should reopen the
nominations pursuant to the procedure stated in ULUC, Article VI, Section
2(f).
CAMPAIGNING
After nominations are
completed, candidates usually begin to campaign in earnest, meeting voters,
making speeches, and distributing their campaign literature. Conflicts and problems sometimes arise
during the campaign period and, in order to deal with them, the Judges of
Election must be knowledgeable about campaign rules and the basic rights of
candidates under Federal law. The
Local Union is bound by a general rule of fairness -- if one
candidate is given a certain opportunity or privilege then all other candidates
must be given the same opportunity or privilege. As a Judge of Election, you must not
discriminate among candidates and should not appear to favor any current
officers who are candidates.
Maintain a businesslike relationship with all candidates even if they are
personal friends, work associates, or political foes. To avoid misunderstandings and insure
that candidates are treated equally, develop campaign rules, inform all
candidates about them, and enforce the rules uniformly.
SECTION 1:
GENERAL CAMPAIGN RULES
REQUIREMENTS
q
Candidates must be given
a reasonable period to campaign prior to the election. What is a reasonable period of time
depends upon the circumstances, including the size of the Local Union, the
number of members in the Local Union, and the geographic area in which it
operates. 29 C.F.R. §452.79. For example, for a Local Union of 100
members all working at one job site, two weeks might be a reasonable period of
time to campaign. In a Local Union
with 1000 members working at various job sites spread across 100 miles, more
time should probably be given to campaign.
See, In the Matter of Local 225, IHO Order and Memorandum,
00-30P (July 17, 2000) (Ruling that 10 days is insufficient even in a mail
ballot and that ballots should not be mailed until the candidates have had the
opportunity to campaign for 15 days).
q
Equal opportunity to
campaign must be provided. For
example, if one candidate is invited to speak at a Local Union meeting, all
candidates for the same position must be invited to speak at the meeting for the
same length of time. Similarly, a
Local Union cannot allow one candidate to place a campaign article in the Local
Union newspaper without first notifying other candidates that they, too, may
campaign this way. 29 C.F.R. §
452.73-452.75; In the Matter of Local 270, IHO Order and Memorandum,
99-53P (April 19, 2000); In the Matter of Local 29, IHO Order and
Memorandum, 99-45P (February 10, 2000) (failure to provide one slate with a copy
of the ballot at same time as the other slate could have affected the outcome of
the election).
q
If one or more
candidates is allowed to campaign in a certain way, the other candidates must be
informed of their right to take the same action, even if the other candidates do
not inquire about that specific method of campaigning.
q
The Local Union cannot
use its authority to impose conditions on the processing and mailing of campaign
literature that would be an unreasonable burden on the candidates’ right to
mail. In the Matter of Local
81, IHO Order and Memorandum, 00-29P (September 27, 2000) (unreasonable to
require candidates to process mailings on Sunday where office secretary required
double her hourly wage and incumbents avoided certain of such
costs).
q
Candidates must be
allowed a one-time opportunity to inspect but not to copy the Local
Union’s membership list within 30 days prior to the election. The list consists of members subject to
a collective bargaining agreement which requires membership in the Local Union
as a condition of employment.
See LMRDA Section 401(c); See also Frequently Asked
Questions and Section 3 of this Chapter for more on this
subject.
q
A candidate, like any
member, is entitled to review all collective bargaining agreements to which the
Local Union is a party.
q
Union funds and/or
employer funds may not be used to support the candidacy of any person. LMRDA Section 401(g); see also
Section 4 of this Chapter. This
rule is to be enforced strictly.
For example, it would be a violation for an incumbent officer to use the
Local Union telephones to make campaign calls, even if done after working hours
on his or her own time. An
incumbent officer may not go to job sites for the purpose of campaigning while
on Local Union time. The Local
Union is allowed to use its funds to distribute to the membership, on an equal
basis, campaign literature submitted by the candidates. 29 C.F.R. §
452.73.
q
It is unlawful for any
candidate to use union resources to support his campaign.
SUGGESTIONS
·
Shortly after
determining which nominees are eligible, meet with the candidates to advise them
of the election and campaign rules and to answer any
questions.
·
Make it clear to all
candidates that use of Local Union or employer funds for campaigning is strictly
prohibited. Advise candidates to
keep records of campaign contributions and expenses so that any future
allegations of improper campaign funding can be resolved.
·
Advise current officers
to take vacation time (if available) if they are going to campaign during work
hours, especially on election day.
·
The key to all campaign
rules is equality. Whatever one
candidate is permitted to do, all candidates for the same office must also be
allowed to do.
FREQUENTLY ASKED
QUESTIONS
1.
Can candidates use non-members to help campaign?
The Labor Management
Reporting and Disclosure Act (“LMRDA”) expressly prohibits union and employer
financial contributions to union elections. LMRDA § 401(g). This rule applies to all employers - it
is not limited to employers that have contracts with the Local Union. All labor organizations are also
prohibited from providing financial assistance to candidates – not just the
Local Union holding the election.
The LMRDA is silent, however, regarding the non-monetary participation of
non-members in an election.
While the IHO has
suggested in prior determinations that allowing the participation of outsiders
in an election campaign could be detrimental to the Union because outsiders do
not have a stake in the Local Union’s goals, he has also recognized that there
are cases where such outside assistance would be permissible. See In the Matter of Local
Union 137, IHO Order and Memorandum, 98-37P (September 28, 1998)(permitting
a paid consultant to the Local Union to participate in the election); but
see, In the Matter of Local Union 646, IHO Order and Memorandum,
95-19P (December 1, 1995)(prohibiting a parole officer, a public official, from
influencing voters in a Local Union election). Such action should not be problematic if
a candidate’s spouse or other family member campaigned or makes financial
contribution on his or her behalf, as long as the family member is not an
employer.
NOTE: As to electioneering
activities by clerical or administrative staff (whether or not such employees
are members) the General President has issued certain guidelines as
follows:
·
Local Union employees,
whether or not LIUNA members, do not have the right as employees
to engage in political activity and the Local Union as their employer may
choose to prohibit them from doing so.
Put another way, while members have the right as members to engage
in political activity without threat to their membership status, Local Unions
are free to adopt a policy which precludes appointed staff from such activity
regardless of membership status; violation of such a policy then, will result in
loss of employment. Therefore, to
reduce the risk that an election will be overturned, the Local Union may wish to
adopt a rule preventing office employees from campaign activity. In any event, office staff should
never use union time or resources (such as the office copier, business
telephone, etc.) to campaign;
·
If office
staff/dispatchers are permitted to campaign (on their own time), the leadership
must be careful to dispel any implication among voters that their future
referral rights may be impacted unless they support that candidate or
slate. In addition, such employees
can never be coerced into campaigning upon threat, whether implicit or explicit,
that their job will be adversely affected should they refuse. The IHO was particularly concerned that
incumbent officers not use endorsements from staff employees on campaign
literature or use these employees at rallies or in phone
campaigns.
·
Local Unions should be
aware that if clerical employees do campaign and if a protest is filed, the IHO
will carefully scrutinize the situation and may well be inclined to direct a
rerun election.
2.
Are candidates allowed to copy the membership list?
The right to inspect
does not include the right to copy the membership list. If one candidate is allowed to copy the
list, however, the other candidates must be informed of their right to copy the
list. 29 C.F.R. § 452.71. See In the Matter of Local
137, IHO Order and Memorandum, 98-37P (September 28, 1998) and In the
Matter of Local 343, IHO Order and Memorandum, 98-54P (September 17,
1998).
3.
Can candidates use their vacation time to campaign?
Yes. In the Matter of
Local 652, IHO Order and Memorandum, 00-23P (June 23, 2000). CAUTION – Incumbents’ vacation
time must have been determined along with other compensation at the meeting
called prior to nominations of the preceding election.
SECTION 2:
DISTRIBUTING CAMPAIGN LITERATURE
Federal law establishes
certain campaign rights for candidates in Local Union officer elections,
including the right to have campaign literature distributed to the membership by
the Local Union at the candidate's expense. The Local Union has a duty to comply
with all reasonable requests to distribute literature and to treat all
candidates equally. Any refusal to
comply with a reasonable request is improper and could result in the election
being successfully challenged. As a
Judge of Election, you can avoid many problems concerning the distribution of
campaign literature by establishing distribution procedures prior to the
campaign period and informing all candidates about them.
REQUIREMENTS
q
Upon the reasonable
request of a candidate, the Local Union must distribute to the membership his or
her campaign literature.
Distribution is to be made at the candidate's expense. Distribution is customarily to be made
by mail.
q
Federal law does not
define "reasonable request". Try to
comply with all requests to the extent possible, however, since any refusal
might later be determined to have been unreasonable. Treat each candidate equally with
respect to the cost of distributing campaign literature. There is no requirement that the Local
Union distribute literature free of charge, but if distribution is made without
charge, all other candidates should be notified that they are also entitled to
have their literature distributed without charge.
q
According to Federal
labor law, a person does not have to be formally nominated in order to be a
"bona fide candidate" entitled to distribute campaign literature. Any qualified member seeking to
be nominated and elected is considered to be a “bona fide candidate.” The Local Union must distribute campaign
literature to a “bona fide” candidate even if the Local Union rule prohibits
campaign mailings prior to nominations.
29 C.F.R. § 452.80.
q
The Local Union may not
regulate the content or review campaign literature prior to distribution. 29 C.F.R. § 452.70. Even if the literature contains
derogatory and libelous remarks about other candidates, the Local Union must
mail it as it would any other campaign literature.
q
The Local Union must
honor requests for distribution to only a portion of the membership if such
partial distribution is feasible.
29 C.F.R. § 452.68. For
example, if a candidate requests distribution of literature to retirees
only.
q
Lack of adequate staff
is no excuse for refusing to distribute campaign literature. If necessary, the Local Union must
temporarily employ additional staff or contract the job to an outside mailing
firm. Any additional expenses
incurred as a result of such measures can be charged to the candidate(s) who
made the request. Candidates may be
required to pay in advance the estimated costs of distribution(s), as long as
such requirement is applied uniformly.
29 C.F.R. §
452.69.
q
The Local Union may not
limit the number of mailings which a candidate is permitted to
make.
SUGGESTIONS
·
Ask current and past
officers how the Local Union handled requests to distribute literature in the
past, and if any problems occurred.
·
Make decisions in
advance with regard to distribution issues such as cost, availability of staff,
arranging for temporary employees or a professional mailing
service.
·
Notify all candidates in
advance of the procedure to be used for mailing campaign literature. Promptly report to all candidates any
changes which may occur.
·
Ask that campaign
literature be submitted in envelopes which are already stuffed, sealed and
stamped with proper postage. This
way, the Judges of Election need only print and affix address labels to each
envelope.
·
Establish a cut-off date
for generating a membership list for the purpose of mailings and use that same
list for all candidates. If that
list is later updated, you must update the mailing for all
candidates.
·
Send each candidate a
sample ballot in advance of printing in order to give them an opportunity to
complain and the Judges of Election an opportunity to correct the
ballot.
FREQUENTLY ASKED
QUESTIONS
1.
Can candidates use sample ballots as part of their campaign
literature?
Yes, even if the sample
ballots look very much like the ballots that will actually be used. In the Matter of Local 1098, IHO
Order and Memorandum, 97-15P (February 12, 1998); In the Matter of Local
137, IHO Order and Memorandum, 98-37P (September 28, 1998) (where a mock
ballot was distributed), and In the Matter of Local 942, IHO Order and
Memorandum, 96-19P (October 25, 1996) (where a union logo used in a mailing was
found to give the impression of sponsorship).
SECTION 3: INSPECTING THE MEMBERSHIP
LIST
REQUIREMENTS
q
All candidates have the
right to inspect a list of members (and their addresses) subject to a collective
bargaining agreement which requires Union membership as a condition of
employment. LMRDA Section
401(c).
q
Even if membership is
not required as a condition of employment, the Local Union must allow inspection
of its membership list under federal law.
If the Local Union decides to do so, it must treat all candidates equally
and notify them of the decision to allow ion. See 29 C.F.R. §
452.71(b).
q
The right to inspect the
membership list is limited to one time within 30 days before the election or 30
days before the mailing of ballots in a mail ballot election. 29 C.F.R. §
452.71.
q
A "bona fide candidate"
who is seeking to be nominated to run for office is entitled to the opportunity
to inspect the membership list once within 30 days before the
election.
q
The membership list must
be maintained at the Local Union's principal office and need not be available
for inspection at other places, such as satellite offices or work locations of
members. LMRDA Section
401(c).
q
The right of inspection
does not include the right to copy the list, but does include the right to
compare it with a personal list of members. 29 C.F.R. §
452.71(a).
q
If one candidate is
permitted to copy the membership list, the Local Union must inform all
candidates of the availability of the list for copying and give the same
privilege to all candidates who request it. 29 C.F.R. § 452.71(b). In the Matter of LIUNA Local 50,
IHO Order and Memorandum, 95-13P (September 19, 1995).
SUGGESTIONS
·
Discuss in advance with
the official responsible for the membership list where, when, and how it will be
made available for ion and to whom requests for ion should be
directed.
·
Notify the candidates in
advance of the procedure to be followed in inspecting membership
lists.
FREQUENTLY ASKED
QUESTIONS
1.
Is a Local Union required to comply with a candidate's request for a list
of contractors' names and job locations?
No, there is no such
requirement in the ULUC or federal law.
In the Matter of LIUNA Local 74, IHO Order and Memorandum, 95-10P
(December 27, 1995). If one
candidate is allowed to or copy a list of employers and/or other job locations,
however, then all other candidates must be notified and provided with the same
opportunity. Beware of incumbent
officers using a list created by their field representatives. If they do so, a list should be made
available to all candidates in order to avoid giving the incumbent an unfair
advantage. In addition, LMRDA
Section 104 provides that a member is entitled to review all collective
bargaining agreements to which the Local Union is a party.
2.
Is a candidate entitled to use a "personal" mailing list which was
created or obtained as a result of the candidate (or a supporter) serving as an
officer or employee of the Local Union?
Yes, provided that all
other candidates are notified and provided with a copy of the membership
list.
SECTION 4:
UNION AND EMPLOYER FUNDS
Federal law strictly
prohibits the use of Union and employer funds to promote the candidacy of any
person in a Local Union officer election.
This prohibition was adopted to prevent a current officer from being able
to use the Local Union treasury to help finance an election campaign. It was also intended to prohibit an
employer from being able to influence the outcome of a Local Union
election. Unfortunately, the use of
Union or employer funds is a relatively common problem in Local Union officer
elections. Candidates, Local Union
officers, and employers sometimes commit unintentional violations because they
simply do not know the extent of the restriction. The challenge is particularly great for
you, as a Judge of Election because you do not control access to the funds of
either the Local Union or the employer, but must still conduct an election in
which no such funds are used.
Therefore, advise all candidates, officers, and employers of the
restriction and be alert throughout the election process for any improper use of
funds.
REQUIREMENTS
q
The term "Local Union
funds" applies to all monies received by the Local Union by way of dues,
assessment or similar levy. LMRDA
Section 401(g).
q
The terms "Union" and
"employer" apply to any Union and any employer, not just the Local Union
conducting the election or an employer of the Local Union's members. 29 C.F.R. §§ 452.73(b) and
452.78(b). For example, a Local
Union in one county cannot provide campaign funding for a candidate in a Local
Union election in a neighboring county.
In addition, a Local Union not affiliated with LIUNA cannot provide
campaign funding for a candidate in a LIUNA-affiliated Local
Union.
q
The Local Union or
employer must not contribute money or anything of value to promote the candidacy
of any individual or slate of candidates in a Local Union election. LMRDA Section 401(g). The prohibition is not limited to
financial contributions; for example, use of an employer's facilities, equipment
or supplies is included in this prohibition.
q
The prohibition against
Union and employer funds applies to direct expenditures from the Union or
employer as well as indirect expenditures, including, but not limited
to:
Ø
Campaigning on time paid
for by the Union or employer;
Ø
Use of Union or employer
owned or leased equipment such as telephones, fax machines, and copy
machines;
Ø
Use of Union or employer
supplies such as stamps, paper, and envelopes;
Ø
Use of Union employees
to prepare campaign literature while on Union time;
Ø
Use of the Union
letterhead;
Ø
Use of Union or employer
or property facilities even after hours, In the Matter of Local Union 67,
IHO Order and Memorandum, 95-16P (October 4, 1995);
Ø
Printing articles which
support or criticize an individual's candidacy in a Union newspaper or other
publication, including a letter to the editor which supports or criticizes any
candidate; and
Ø
Giving free services or
special discounts to a candidate customer such as printing, photocopying,
etc.
q
If you become aware of
any improper campaign funding, require that the candidate reimburse the Union or
employer that supplied the improper funding.
q
If union facilities are
available for rental for a campaign function, advise all candidates and be sure
that the candidates pay for the use of space.
SUGGESTIONS
·
Advise all candidates of
the foregoing prohibitions.
Consider giving candidates copies of this portion of the Election
Guide.
·
A Local Union may also
adopt additional rules governing contributions to campaign funds, such as
prohibiting contributions from any person who is not a member of the
union.
FREQUENTLY ASKED
QUESTIONS
1.
Is it still a violation if a candidate uses Union or employer funds
without the knowledge of the Union or employer? (e.g., if the candidate
makes copies on the Union's copy machine after hours).
The use of Union or
employer funds is a violation of Federal law even if Union officials or the
employer do not know about or approve of the use. Thus, if a candidate uses a copy machine
after hours, it is still a violation of this prohibition.
2.
Is it always a violation if the incumbent officer visits a jobsite during
the election season?
Any campaigning by Local
Union officers that is "incidental" to Local Union business is not a violation
of law. 29 C.F.R. § 452.76. For example, if an incumbent Business
Manager while wearing a campaign button shakes hands with members while visiting
a work site on official business, he or she has not violated the
law.
NOTE: It is the contractor’s
prerogative to permit non-employees onto the job site. It may be improper if one candidate is
permitted onto a job site and not the others.
3.
Is it always a violation to use the union logo on campaign
materials?
Unlike the use of union
letterhead, (i.e., union funds), use of the union logo for
campaign purposes is not strictly prohibited by external federal labor law. However, due to the significant risk that such use may create the
improper appearance of International or Local Union sponsorship of the
candidate, this practice should be avoided. In the Matter of Local 225, IHO Order
and Memorandum, 00-30P (June 28, 2000); (election overturned where union logo
was used on both campaign flyers and tee shirts in close election); In the
Matter of Local 942, IHO Order and Memorandum, 96-19P (October 25,
1996). On the other hand, the IHO
has ruled that certain logos are permissible. In the Matter of Local 81, IHO
Order and Memorandum, 00-29P (September 27, 2000) (Special logo designed for
campaign purposes containing drawing of worker with jackhammer dissimilar to
LIUNA logo deemed not a violation).
In the Matter of Local 270, Memorandum Regarding Reconsideration,
99-53P (May 26, 2000); IHO Order and Memorandum, 99-53P (April 19, 2000) (Use of
“Union Yes” logo surrounded by the words “Laborers’ International Union of North
America” was not a violation).
THE RIGHT TO
VOTE
The opportunity to cast
a secret ballot in an officer election is the most fundamental right guaranteed
by the LMRDA to all Local Union members in good standing. Your responsibility as a Judge of
Election is to insure that only members in good standing are permitted to
vote. Since voter eligibility is
one of the most common reasons that elections are challenged, preparing an
accurate voter eligibility list is critical. The right to vote also implies a
reasonable opportunity to vote; therefore, you must take into account factors
such as distance to the polling site and hours of work when scheduling polling
hours and locations. If members are
dispersed over a wide geographic area, it may be necessary to establish multiple
polling sites or conduct the election by mail in order to provide all members a
reasonable opportunity to vote.
REQUIREMENTS
q
The right to vote in
free, fair, and honest elections is guaranteed by the Ethical Practices
Code. EPC, Democratic Practices,
Section 1 and by applicable law.
q
Any member in good
standing is eligible to vote. ULUC
Article III, Section 1(h); ULUC Article VI, Section 3(d). A member in "good standing" is one who
is not deemed suspended at the time of the election and is current in the
payment of dues and other uniformly required financial obligations to the Local
Union. When determining whether a
member is “current in the payment of dues, take note of ULUC, Article VIII,
Section 4 which allows for a 60 day grace period before the member is deemed
suspended by the International Union.
q
A member is not
qualified to vote if he or she is not current in the payment of his dues,
meaning the member is more than two months behind in the payment of his or her
dues. ULUC Article VI, Section
3(d).
q
A member in good
standing whose dues have been checked off by the employer may not be disqualified because of any delay or
failure by the employer to send the dues to the Local Union. 29 C.F.R. §
452.87.
q
An unemployed member who
continues to actively seek work in accordance with the Local Union's hiring
hall/referral rules cannot be denied the right to vote so long as he or she
remains current in the payment of dues.
29 C.F.R. §§ 452.86 and 452.92.
q
A member who works only
part time but pays the required dues cannot be denied the right to
vote.
q
A member suspended for
dues delinquency beyond sixty (60) days and who is properly reinstated by the
payment of back dues and fees and thereby regains good standing status is
entitled to vote. 29 C.F.R. § 452.88.
q
Apprentices shall have
the same right to vote as other members.
ULUC Article III, Section 4(a).
SUGGESTIONS
·
If a Local Union knows
in advance that a substantial number of members will not be able to exercise
their right to vote in person, mail-in ballots or other means of voting must be
made available. 29 C.F.R. §
452.95. In that event, a request
for a Constitutional variance must be sought from the General
President.
·
A complete, accurate
list of eligible voters will save time at the polls, result in fewer challenged
ballots, minimize confrontations with voters and watchers, and help prevent
challenges to the election. Make
sure that the list is as up-to-date as possible; i.e., that new
members have been added, deceased or suspended members have been deleted,
etc.
·
If a member's name is
not on the voter eligibility list or a question arises about a person's
eligibility on election day, instruct the member to cast a challenged
ballot. (There are more guidelines
on voiding ballots in Appendix D to this Guide.) It is always better to allow a person to
cast a challenged ballot (which will not be counted if the voter is later
determined to be ineligible) than to risk denying an eligible member (whose name
was improperly omitted from the eligibility list) the right to
vote.
FREQUENTLY ASKED
QUESTIONS
1.
If a member on dues checkoff is laid off, does this affect his good
standing?
Any member who has no
earnings from which dues can be withheld is responsible for paying dues directly
to the Local Union in order to remain in good standing and remain eligible to
vote. This requirement must be
uniformly applied.
2.
Can members who only work at the calling a few months out of the year
vote in Local Union elections?
Yes. As long as the member is current in the
payment of dues and has not been suspended, he or she is entitled to
vote.
3.
Can a retired member vote in Local Union elections?
Yes, so long as the
retiree is current in payment of dues and has not been suspended. Note that a retiree is entitled to
retain good standing for voting purposes even though he or she pays reduced
dues.
4.
Can members who own or manage a construction company vote in Local Union
officer elections?
Yes. Assuming the other requirements to vote
are met, contractors and supervisors are eligible to vote, but ineligible to run
for office.
5.
If a member has transferred into the Local Union from another LIUNA
affiliate, can he or she vote in the next election?
Yes, but only if he or
she has been a member of the new Local Union for three months. IUC, Article XXI, Section
5.
6.
What about merged Local Union members?
In the case of a merger
of two Local Unions, continuous good standing membership in the former Local
Union satisfies the continuous good standing requirement in ULUC, Article V,
Section 1.
7.
Are there voting restrictions placed on members of newly chartered Local
Unions?
No. For Local Unions who have been chartered
for a period of less than two years at the time of the election, all members in
good standing may vote.
Federal law requires
that all members (not just members eligible to vote) be
notified of an officer election including the date, time, and
place that the voting will occur.
This may prove to be more difficult than you anticipate if your Local
Union's membership list does not contain up-to-date addresses. Therefore, do not wait until the last
minute to begin updating the membership address list.
REQUIREMENTS
q
The Secretary-Treasurer
must mail a written notice of election to each member in good standing, at his
or her last known address. The
notice must set forth the date, time, and place of the election and the offices
and positions to be filled, including delegate(s) to the District Council (if
applicable). ULUC Article VI, Section 2(j).
q
The Notice of Election
must be mailed at least fifteen days prior to the date of the election. ULUC Article VI, Section
2(j).
q
To determine the fifteen
day mailing period, do not count the day the notices are mailed, but count the
day of the election. 29 C.F.R. § 452.99. For example, if the election is to be
held on June 20, the election notice must be mailed no later than June
5.
q
A reasonable effort to
update the membership address list must be made prior to mailing the election
notice.
SUGGESTIONS
·
Obtain a copy of the
notice of election used for the Local Union's most recent election. If that notice appears to be in order,
follow the same format.
·
Provide in the notice
any relevant information about voter eligibility, identification procedures at
the polls, availability of mail-in ballots (if applicable), and any new election
procedures. If a candidates' forum
will be held sometime before the election, the notice should indicate this and
the time and place of such forum.
·
If a substantial number
of the Local Union's members are non-English speaking, include in the notice a
translation of all the information in the appropriate foreign
language.
·
Mail the notices by
first class mail to ensure that members receive the notices far enough in
advance of the election so they can make arrangements to get to the polling
place.
·
If any election notices
are returned undelivered, make a reasonable effort to obtain accurate addresses
and re-mail the notices promptly.
·
Keep an accurate list of
all notices which were returned to the Local Union (or keep actual notices which
were returned).
·
In addition to the
required mailing, use other methods of notifying members, such as distribution
of notices at work sites, and posting notices on Local Union bulletin
boards.
·
As with all records of
the election process, keep a copy of the election notice for at least one year
after the election and keep a record of the mailing date.
·
Use a separate P.O. Box
as the return address for all notices so the returned envelopes do not get
mingled with the regular mail of the Local Union.
SECTION 2:
BALLOTS
As a Judge of Election,
you will be confronted by a number of difficult ballot-related issues throughout
the election process. Such issues
include, but are not limited to ballot design, use of nicknames on the ballot,
candidate position on the ballot, use of slate designations, number of ballots
necessary for the election, and the printing, custody, safeguarding of the
ballots and accounting for all of the ballots printed.
REQUIREMENTS
A.
Preparing the Ballot
q
The Judges of Election
prepare the official ballot. ULUC
Article VI, Section 2(g). In doing
so, consult with the Recording Secretary and obtain from him or her the list of
candidates for each office or elective position. The official ballot must be based on
this information, prepared pursuant to this data, with the names of the
candidates for the offices and positions to be filled, including candidates for District
Council Delegate(s) (if applicable), * listed in the order in which they were
nominated. ULUC Article VI, Section
2(g).
q
In preparing the
election ballot, the Judges of Election must:
(a)
consult with the Recording Secretary and obtain from him or her the list
of candidates for each elective position or office;
(b)
arrange for the ballot to be printed based upon the above list with the
names of the candidates listed in the order in which they were
nominated;
(c)
consult with the Secretary-Treasurer to determine whether printed ballots
or voting machines are used. ULUC
Article VI, Section 2(h); and
*
See, Uniform Local District Council Constitution, Article IV, Section 3,
page 115.
(d) order
the required number of ballots or make necessary arrangements for voting
machine(s).
q
Once you have declared a
nominee eligible to run, the nominee cannot be stricken from the ballot for any
reason, including the unavailability or unwillingness of the nominee to serve in
office. ULUC Article VI, Section
2(g).
q
Instructions on the
ballot should clearly state the manner in which members should mark their
ballots; for example, "Mark an X in the box next to the names of the candidates
of your choice." The ballot should
also indicate the maximum number of votes allowed for each office, for example,
"Auditor -- vote for no more than three."
q
Candidates may be listed
on the ballot according to affiliation with a particular slate; however, a voter
must be able to choose among individual candidates. To avoid any misunderstandings in this
regard, the voting instructions should specifically inform the voter that he or
she need not vote for an entire slate.
29 C.F.R. § 452.112.
B.
Safeguarding and Accounting for the Ballots
q
Consult with the Local
Union's Secretary-Treasurer to determine the number of official ballots to be
printed, or the number of voting machines needed, if voting machines are to be
used. Order the required number of
ballots or make the arrangements for voting machines. ULUC Article VI, Section
2(h).
q
Whether printed ballots
or voting machines are used, they must be in such form as to protect and insure
the secrecy of the vote of the member.
ULUC Article VI, Section 2(h).
q
The official ballots,
once printed, must remain in the custody of the Judges of Election until the day
of the election. ULUC Article VI,
Section 2(i).
q
Be sure that there is no
post-voting device by which it can be determined how a particular member
voted. (In the Matter of Local
Union 646, IHO Order and Memorandum, 95-19P (December 1, 1995), citing
Bachowski v. Brennan). An
example of how secrecy could be compromised is by printing numbered ballots, and
recording which ballot number each member receives. Although this might seem harmless, it
would give the appearance of a possible violation of the secret ballot
requirement. In the Matter of
Local 724, IHO Order and Memorandum, 98-53P (September 2, 1998) where a
Judge of Election ripped off stub from ballot in such a way that he could view
the votes, the Independent Hearing Officer found it "tainted the atmosphere and
undermined the integrity of the election.")
q
Account for all ballots
printed, even unused ballots. Adopt
adequate controls and safeguards to protect the ballots, such as counting the
number of ballots received from the printer, maintaining ballots in a secure
place prior to use, and keeping control of ballots and the ballot box at all
times. For example, if you purchase
500 ballots and use 350, and 50 are returned, and 50 are improperly marked, you
should be aware of exactly how many ballots are unused (100) and every
ballot should be accounted for.
q
All of the ballots cast
and all of the remainder of the unused ballots, the tally sheet, and the
Membership Voting Register must be gathered and wrapped in a package which must
be sealed and signed by the Judges of Election. The Judges of Election shall retain
custody of this package until the meeting when they make their report, at which
time they shall surrender the records to the newly elected
Secretary-Treasurer. ULUC Article
VI, Section 3(k).
q
These records shall be
kept by the Local Union for at least one year following the election. LMRDA Section
401(e).
SUGGESTIONS
·
On the face of the
ballot or on a sign conspicuously posted at the polling place, inform voters
that any identifying marks placed on the ballot will result in the ballots being
voided.
·
Clearly state on the
ballot that the winning candidate for the office of Business Manager
automatically becomes a delegate to the District Council.
·
Provide adequate voting
instructions to any non-English speaking members; for example, arrange to
include a translation of the instructions on the ballot in the appropriate
foreign language.
·
Acquire ballots from an
outside source, such as a printer, instead of using the Local Union's copy
machine to make them. Ask the
printer to provide an official count of the number of ballots
printed.
·
If voting machines are
used, check that they are operating properly, that candidates are listed
correctly, and the machine counters are set at zero before the polls are
opened. A supply of paper ballots
should be on hand if the machines break down or it becomes necessary to use
challenged ballots.
·
The number of ballots
printed should be equal to the total number of eligible voters plus about 5
percent. Extra ballots may be
necessary if voters spoil their ballots and need replacements. On the other hand, having too many extra
ballots printed makes it more difficult to safeguard and account for all
ballots.
·
Avoid using serially
numbered-ballots. If this cannot be
avoided, advise voters to remove the stubs before depositing the marked ballots
in the ballot box in order to preserve voter secrecy.
·
Post a blank sample
ballot (which is clearly marked "Sample Ballot") at the entrance to the polls to
familiarize the voters with the ballot format and the candidates for each
office.
·
Prepare materials prior
to the election which may be necessary for handling ballots which are challenged
by watchers or your fellow Judges of Election. 29 C.F.R. § 452.97(b). (See Guidelines for Voiding
Ballots in the Appendix to this Guide).
FREQUENTLY ASKED
QUESTIONS
1.
If a candidate is running unopposed for a certain office, must that
candidate and office have to be listed on the ballot?
No. If there is no contest for any office
and the candidates for such offices are found properly qualified, the Judges of
Election shall certify to the May meeting that there is no need for a secret
ballot election, and the nominees shall be declared duly elected. Thus, if there is only one candidate for
each office, there will be no need for a secret ballot election (ULUC Article
VI, Section 2(e)). Although it is
not required, placing the unopposed names on the ballot would promote the
democratic process by giving the membership a more informed
vote.
2.
May a candidate request that his or her nickname appear on the
ballot?
Yes. In many Local Unions, a member is known
only by his/her nickname. For
example, if candidate John Smith is familiarly known as "Papa", he can request
that his name appear on the ballot as "Papa" Smith. Of course, such requests should not be
granted if the requesting candidate is obviously just trying to create confusion
on the ballot. In the Matter of
Local 724, IHO Order and Memorandum, 98-53P (September 2, 1998) (stating
that failure to include a nickname could affect the outcome of the
election); In the Matter of Local 220, IHO Order and Memorandum, 96-72P
(November 22, 1996) (finding that the failure to include a nickname on the
ballot did not substantially affect the outcome of the election).
3.
If candidates must be listed in the order in which they are nominated,
how is a slate of candidates identified?
List the candidates'
slate affiliation in parentheses after each candidates' name. For example, assume a Local Union has an
election where some candidates are running as part of a slate, while others are
not. The following example could be
a portion of the ballot. For each
office, the candidates are listed in the order in which they were
nominated. The ballot should
clearly state that voters do not have to vote by slate or party. For example:
Business
Manager:
___ Candidate A ("Reform
Slate")
___ Candidate B
("Progressive Team")
___ Candidate
C
Secretary-Treasurer:
___ Candidate
D
___ Candidate E
("Progressive Team")
___ Candidate F ("Reform
Slate")
SECTION 3:
THE POLLING PLACE
REQUIREMENTS
q
The Judges of Election
must not only make arrangements for balloting in secret but must also insure
that members actually use the secret balloting facilities
provided.
q
Also insure that no
campaigning occurs inside the polling area and that order is maintained at the
polls at all times. Check the polls
periodically to insure that voters have not left campaign material in the voting
area. 29 C.F.R. §
452.111.
q
Do not wear campaign
buttons, stickers, or other types of campaign apparel in the polling area. This applies to watchers as well. Voters, however, may wear such items in
the polling place during the time necessary to cast their
votes.
q
Before voting begins,
open the ballot box in the presence of appointed Watchers to make sure that it
is empty, and then seal or lock the box until the ballot tally begins. (For more information on Watchers, see
Section 4 of this Chapter.)
q
Strictly follow the
polling hours listed in the election notice, but permit any members waiting in
line at closing time to vote.
q
Ask each voter to
present identification, check the voter's eligibility, and mark the voter's name
off the eligibility list. Each
voter should sign a voter register before receiving a ballot. These procedures will create an official
record of who voted and help prevent the possibility of a member voting more
than once.
q
If there is more than
one polling place, establish a system to prevent a person from voting at more
than one polling place. For
example, prepare a separate voter eligibility list for each polling site, with
each member's name appearing on only one list. If work sites are being used as polling
places, advise in the Election Notice that members must vote at their normal
work site or they will be required to vote a challenged
ballot.
SUGGESTIONS
·
Carefully plan the
arrangement of the inside of the polling place to achieve a logical and smooth
flow of voters during the voting process.
·
Arrive at the polling
place at least one hour before the start of voting so you have enough time to
set up supplies and equipment.
·
Have adequate backup
records such as dues payment information available at the polling site to verify
voter eligibility if questions arise.
·
Place the ballot box in
a location where it can be seen by both the Judges of Election and Watchers at
all times.
·
Ask appointed Watchers
to arrive before the polls open so you can explain the procedures to be used and
answer any questions.
·
If a voter appears whose
name has already been marked off the list, examine the names near the voter's
name on the eligibility list to see if an obvious explanation can be found. For example, if Joe Jones appears to
vote, but his name has already been checked off, you may remember that John
Jones has voted. If John Jones's
name is not checked off, the mistake is obvious and Joe Jones should be allowed
to vote. If no explanation is
found, however, you should direct the voter to cast a challenged
ballot.
·
Void the ballot of any
member who refuses to vote in secret.
Usually the threat of this action will result in the member following
directions.
·
Maintain the secrecy of
any spoiled ballot by folding it in half, writing "spoiled" on the back, and
placing it in a separate envelope for spoiled ballots. Be sure to account for spoiled ballots
at the completion of the ballot tally.
·
Enforce a "no loitering"
rule and establish an easy exit route for members who have already voted. Enforcing this rule uniformly from the
outset will greatly reduce confusion at the polls.
·
Wear "Judge of Election"
badges or some other identification so that voters know to whom they should
direct questions or problems.
·
At least one Judge of
Election should be present at the polls at all times. Schedule meal breaks during times when
voting is slow.
·
Make arrangements so
that physically disabled members are able to vote in
secret.
·
Although the incumbent
Secretary-Treasurer is permitted to be in the voting area for the purpose of
determining whether members are current in the payment of dues and entitled to
vote, be cautioned that the Secretary-Treasurer should not take an overly active
role. In the Matter of Local
137, IHO Order and Memorandum, 98-37P (September 28, 1998) and In the
Matter of Local 292, IHO Order and Memorandum, 98-40P (July 24, 1998), where
the election was questioned because the Secretary-Treasurer was in possession of
ballot box.
·
If a significant portion
of the membership does not speak English, arrange that an interpreter be
available in the appropriate second language.
·
Designate one Judge of
Election to deal with any news media inquiries.
FREQUENTLY ASKED
QUESTIONS
1.
Are candidates and their supporters allowed to outside the polling place?
Yes. There is no prohibition on campaigning
outside the polling place, such as passing out leaflets in the parking lot on
election day, unless the Local Union has previously instituted a rule to the
contrary. In the Matter of LIUNA
Local 247, IHO Order and Memorandum, 95-07P (July 27, 1995). Some Local Unions do choose to adopt a
broad rule which prohibits any campaigning outside the polling
place. As with all rules, such
rules must be applied uniformly to all candidates. Inform candidates early on whether or
not campaigning will be allowed outside the polling place. Otherwise, one group might assume it is
allowed, while another group assumes it is not, causing an unfair
situation.
2.
If a Local Union has a substantial number of members who do not speak
English, can the Judges of Election translate information on the ballots and
other written instructions?
Yes. The use of a Judge of Election to assist
non-English speaking voters is appropriate provided that he or she translates
the ballots correctly and gives impartial instructions. In the Matter of Local Union
1075, IHO Order and Memorandum, 95-18P (September 28, 1995). Of course, you must be very careful to
remain completely impartial throughout the process. A better choice may be to use printed
translations on the ballot itself.
3.
What is the role of the incumbent Secretary-Treasurer during the
election?
The incumbent
Secretary-Treasurer is permitted to be in the voting area during the election in
order to assist the Judges of Election in determining whether a voting member is
current in his or her dues and entitled to vote. ULUC, Article VI, Section 3(c) and
(d). At the close of the voting,
the Secretary-Treasurer should sign the Membership Voting Register together with
the three (3) Judges of Election.
ULUC, Article VI, Section 3(d).
If voting takes place at more than one location, the incumbent
Secretary-Treasurer should avoid traveling with the ballot box in his
possession. See In the
Matter of Local 137, IHO Order and Memorandum, 98-37P (September 28, 1998)
and In the Matter of Local 292, IHO Order and Memorandum, 98-40P (July
24, 1998). When the polls have
closed, the Secretary-Treasurer should leave the voting area for the tallying
process. ULUC, Article VI, Section
3(i).
In the Matter of Local
137,
IHO Order and Memorandum, 98-37P (September 28, 1998) and In the Matter of
Local 292, IHO Order and Memorandum, 98-40P (July 24, 1998), (where the IHO
found an appearance of impropriety because the Secretary-Treasurer was in
possession of ballot box).
4.
Are the Judges of Election and Secretary-Treasurer required to be in the
voting area "at all times"?
No. It is understandable that a Judge of
Election, at some point, will need to take a break. In the Matter of Local 1075, IHO
Order and memorandum, 95-18P (September 28, 1995). The other Judges of Election must make
sure coverage is sufficient at those times.
SECTION 4:
WATCHERS
REQUIREMENTS
q
A candidate may
not be his or her own watcher.
q
Each candidate may, at
his own expense, designate in writing a Watcher who must be a member in good
standing of the Local Union and who must, no later than the day of election,
deposit such written appointment with the Judges of Election. ULUC Article VI, Section 3(b); LMRDA
Section 401(c).
q
The right to have a
Watcher includes having one present during every phase and level of the voting,
counting and tallying process, including the counting and tallying of the
ballots and the totaling, recording and reporting of tally sheets. 29 C.F.R. §
452.107(a).
q
If there is more than
one polling place, each candidate may have a Watcher at each location. If ballots are being counted at more
than one location or at more than one table at a single location, each candidate
is entitled to as many Watchers as necessary to observe the actual counting of
ballots. 29 C.F.R. §
452.107(a).
q
Watchers may note the
names of those voting so that the candidates may be able to determine whether
unauthorized persons voted in the election. 29 C.F.R. §
452.107(a).
q
Watchers should be
positioned so that they do not compromise, or give the appearance of
compromising, the secrecy of the ballot.
Watchers do not have the right to count the ballots. 29 C.F.R. §
452.107(a).
q
Watchers do not have the
right to interfere with or disrupt the conduct of the election. Their role is limited to observing the
election process, asking procedural questions, challenging the eligibility of
any individual voters, and lodging protests with the Judges of Election as
appropriate.
q
Watchers do not have the
right to count or handle the ballots in any way but must be allowed to observe
the counting closely enough to verify the accuracy of the
tally.
q
Watchers may not wear
campaign buttons or stickers, other campaign apparel, distribute literature, or
engage in campaign activities inside the polling place, including conversations
about candidates or the election campaign.
SUGGESTIONS
·
Avoid viewing watchers
questions or comments as challenges to your authority or impartiality. The presence of watchers adds integrity
to the election process and helps eliminate rumors and groundless accusations
which sometime occur when no observers are present. Elections are less likely to be
successfully challenged when observers are present.
·
Explain the procedure to
be used at the polling place to the Watchers well before voting
starts.
·
Give the Watchers every
opportunity to observe all the activities of the election process, but remain
firm on preventing them from interfering.
·
Give each Watcher a copy
of "Rules for Watchers". Appendix
D, page D-1.
·
Designate a location in
the polling area where Watchers can monitor the voting without any
disruption. Do not allow Watchers
to roam the polling area. Be on the
lookout for any confrontations between rival candidates.
·
Invite Watchers to the voting booths and the empty ballot
box before the polls open, and to accompany the ballot box if it is moved to a
different location.
·
Request Watchers to sign
a Watcher log indicating the times they were present at a specific polling site
or the tally of ballots.
·
Provide "Watcher" badges
for Watchers to wear while at the polls or tally site.
·
Enforce rules governing
Watchers' conduct uniformly. If a
Watcher must be removed from the polling area or tally site for improper
conduct, notify the appropriate candidate, if possible, so that he or she can
get a replacement.
·
Before tallying the
ballots, review the counting procedures with the Watchers, including voiding
rules.
·
When resolving a
challenged , explain to Watchers the reason for each decision to count or not
count a challenged ballot.
·
Although not required,
request watchers to sign a Ballot Tally Certification at the end of the ballot
tally. Appendix L, page
L-1.
FREQUENTLY ASKED
QUESTIONS
1.
May a candidate serve as his or her own watcher?
No. A candidate may not nominate him or
herself as a watcher. In the
Matter of Local 137, IHO Order and Memorandum, 98-37P (September 28,
1998). A candidate who is in the
balloting area through the entire election may have the effect of intimidating
voters and could give the appearance that he or she maintains control over the
election.
2.
May Watchers take action to assist voters?
No, because this might
compromise the Watcher's role as a passive observer, and could create the
perception of a conflict of interest.
For example, the Watcher should not explain how to use the voting machine
or enter the voting booth. In
the Matter of Local Union 678, IHO Order and Memorandum, 95-09P (December
12, 1995).
3.
May watchers assist the Judges of Election in their election
duties?
No. For example, a Watcher should not
attempt to help the Judges of Election during rush times at the polls or
substitute for the Judges of Election in order to give them a
"break".
SECTION 5:
COUNTING BALLOTS
REQUIREMENTS
When the closing time as
prescribed has arrived, and all voters present have voted, the
Secretary-Treasurer, having fulfilled his duties during the election, shall
leave the voting area. ULUC Article
VI, Section 3(i).
The Judges of Election
shall take possession of the ballot box, in the case where paper ballots are
used, or open the voting machines, if machines are used, and proceed to count
and tally the vote for each office or elective position, in the presence of the
Watchers. ULUC Article VI, Section
3(i).
Every vote on a valid
ballot should be counted if the voter's intent is clear no matter what mark
("X," "n," "ü," etc.) is used to
indicate the voter's choice.
If a voter makes a
mistake in voting for a position on the ballot, such as voting for too many
candidates for a given office, only the vote(s) for that office should be voided
(not counted).
When the count and tally
for each office have been completed, the Judges of Election shall announce the
result after which they shall mark the result of the total vote for each
candidate on two blank official ballots or on two official lists of candidates
and certify, by their signatures, that such results are the official results of
the election. One of the official
lists shall be kept by the Judges of Election, for the purpose of preparing
their report to the following meeting of the Local Union. The other official list must be turned
over to the Secretary-Treasurer for the purpose of posting the same as the
result of the election, for the information of all of the members of the Local
Union. ULUC Article VI, Section 3
(i).
The Judges of Election
must count any ballot voted in such a way as to indicate fairly the intention of
the voter. 29 C.F.R. §
452.116. For example, erasures or
"crossouts" should not cause a vote to be voided if it is clear who the voter
intended to select.
An entire ballot may not
be voided because of a mistake made in voting for one of the offices on the
ballot. 29 C.F.R. § 452.116. For example, if a voter has marked more
than one choice for President, but he marked the correct amount of choices for
the total offices, his ballot must be counted for all offices except
President.
A ballot which contains
the voter’s name or other marks which provide the identity of the voter must be
voided. If the ballot contains
extraneous marks which do not identify the voter, then it should not be voided
in the absence of a union rule to the contrary.
No "write-in" votes
shall be permitted on the day of the election. ULUC Article VI, Section
3(h).
The candidate with the
highest number of votes wins. Only
valid ballots should be counted in determining whether a candidate has received
a majority of votes cast. Blank and
totally void ballots are excluded from the tally. Keep in mind, however, that all ballots
cast in the election, including unused, sample, challenged, spoiled, and totally
void ballots must be accounted for.
In the event of a tie in
the votes cast for the for any office, the decision will be made by lot from
among those candidates having the tie vote. ULUC Article VI, Section
3(j).
If the number of
unresolved challenged ballots at the end of the tally could affect the outcome
of any race, they must be resolved and, if determined to be valid, must be
counted. Judges of Election must be
careful to preserve voter secrecy of any challenged
ballots.
SUGGESTIONS
Before beginning the
counting process, plan the procedure to be used in counting and tallying the
ballots. Explain to the Watchers
how the process will work.
See Appendix E, H and I.
Designate one Judge of
Election as the final judge in deciding questions of voter intent or ballot
validity to insure that are counted and voided in a uniform
manner.
FREQUENTLY ASKED
QUESTIONS
1.
If the outcome of the race hinges on the validity of challenged ballots,
what action should be taken?
The Judges of Election
should make their decision on the ballots, and then make a final count and
tally. They should take steps to
document the reasons for their decisions.
Any member who disagrees will then have to follow the process in the ULUC
for protesting elections. All
challenged ballots should be kept separately and maintained for a significant
period of time following the election.
2.
Does a candidate need to get a majority of votes to win an
office?
No, the winner is
whoever gets the most votes for that office.
3.
Can Local Unions use counting devices, accountants, or balloting
organizations to count ballots?
Yes. Hiring outside professionals might even
be necessary in a large Local Union.
The Judges of Election would still be the final judges of any election
issues and would supervise the outside professionals.
4.
Can candidates be present during the counting of ballots?
Yes, however, all
candidates should be given an equal opportunity to be present during counting so
as to avoid the appearance of impropriety.
In the Matter of Local 220, IHO Order and Memorandum, 96-72P
(November 22, 1996).
HANDLING PROBLEMS AND
COMPLAINTS
As a Judge of Election
you will be confronted with a wide variety of issues during the election
process. The ability to resolve
disputes and provide sound advice will significantly reduce the possibility of a
meritorious protest to the Independent Hearing Officer. Take note that the Independent Hearing
Officer presides over and provides ruling in all election protests brought by
any member, officer, or candidate for office within the Union." LIUNA Ethics and Disciplinary
Procedure, Section 5, The Independent Hearing Officer and Appellate
Officers, at p. 31.
A.
The Six Most Common Complaints:
The OLMS has determined
that the most common reasons for a challenged election
are:
use of Local Union or
employer funds, facilities, equipment, or supplies to support a
candidate;
non-uniform application
of candidate eligibility requirements;
denying eligible members
the right to vote or permitting ineligible persons to
vote;
lack
of secret ballot;
failure to provide
adequate safeguards to insure a fair election, including failure to safeguard
ballots properly; and
failure to follow the
election provisions of the Uniform Local Union
Constitution.
B.
Seven Suggested Steps for Resolving Complaints
A thorough inquiry into
a complaint may be accomplished by completing the following
steps:
1.
Review the election complaint thoroughly and promptly to decide what
information is needed to resolve the allegation.
2.
Talk to the complaining member in order to clearly understand the
allegation and to obtain any specific information needed.
3.
Review the relevant provisions of the Uniform Local Union Constitution
and the election rules.
4.
Review election records, e.g., voter eligibility list or
voter register.
5.
Interview members and other persons, as necessary.
6.
Decide if the allegation is true by reviewing all the information
gathered by the Judges of Election and discussing the findings as a
team.
7.
Determine whether the allegation, if true, may effect the outcome of the
election.
NOTE: It may not be necessary
to complete each of the seven steps in order to resolve every issue. In fact, in most cases, the answer is
patently obvious. What is the most
important is for Judges of Election to obtain and rely on the facts, not
speculation, hearsay, or rumors.
Your role is that of a fact finder who must determine if an allegation is
true.
C.
Determining Appropriate Action
If an allegation has no
merit, the Judges of Election need not take corrective action. Any allegation which is supported by the
facts should be closely analyzed to determine the number of votes which maybe
affected and the possible impact on the election results.
Many times the impact of
a specific irregularity on election results is difficult to predict. Keep in mind, that a complaint can
result in either a rerun of the entire election or only those races in which a
violation affected the outcome of the election for a particular
office.
SUGGESTIONS