LABORERS INTERNATIONAL UNION OF NORTH AMERICA

ELECTIONS OFFICER

 

MATTER OF LOCAL 210

No. 06-EO-01 

            This matter came before the Elections Officer by a written protest received on February 17, 2006.  Samuel Capitano, a member of Laborers Local 210, complains that the Local's Winter 2006 newsletter contained improper campaign material directed against his potential candidacy for convention delegate.

Factual Background

            Local 210 is based in Buffalo, New York.  In February 1996, the GEB Attorney and Local 210 agreed to a voluntary supervision by the International Union, designed to rid the Local of organized crime activities and influence.  That agreement was initially challenged by a group of Local 210 members who, among other things, physically occupied the union hall to prevent the Supervisor from carrying out his functions.  Court orders ultimately forced these members to step aside, and the supervision agreement was carried out.

            Samuel Capitano was one of the individuals who attempted to block the supervision.  Disciplinary charges were filed against him by LIUNA, including a charge of obstructing the GEB Attorney.  Mr. Capitano ultimately agreed that he had obstructed and/or interfered with the GEB Attorney and accepted certain discipline.  Other charges, including charges of racketeering and undermining the union as an institution, were dismissed as part of that agreement.  The discipline incurred by Mr. Capitano included:  a 1-year suspension from membership; a monetary fine; and a lengthy but not permanent bar on seeking, accepting or holding elected union office.  The bar on seeking or holding union office ran for a period of 5 years after the end of the supervision or any immediately subsequent trusteeship.

            The supervision of Local 210 was ultimately converted into a trusteeship.  The trusteeship, however, was apparently not fully successful, and in 1999 LIUNA joined the U.S. government in filing suit against Local 210 under the Racketeer Influenced & Corrupt Organization Act, 18 U.S.C. § 1964.  Local 210, through its Trustee, agreed to a Consent Decree and appointment of a "Court Liaison Officer" who would help eradicate the influence of organized crime in the union.

            The Court Liaison Officer was John J. McDonnell.  In a report filed with the Court in late 2005, Mr. McDonnell expressed his concern over efforts by "members loyal to the old regime," who had filed allegedly "malicious" and "unwarranted" charges with the NLRB in order to disrupt the Local, and who had engaged in "venomous attacks" on the union leadership.  Mr. McDonnell also described these NLRB charges as "politically motivated to support an ongoing election campaign strategy," and pointed to the involvement of "union member Mr. Sam Capitano" in making or instigating those charges.  See Report of Court Appointed Liaison Officer, United States v. Local 210, No. 99cv0915A (W.D.N.Y.) (Dec. 20, 2005).

            Mr. McDonnell's service as Court Liaison Officer ended in January 2006.  Local 210's Winter 2006 newsletter, which appears to have been mailed on February 14, 2006, carried a one-page letter from Mr. McDonnell to the membership at large.  That letter, titled "Farewell and Best Wishes," repeated some of Mr. McDonnell's concerns about the "attempts of a few members" to "regain control of this union and return it to the past days of corruption and inequality."  Mr. McDonnell urged members to "'Beware' of the member who:"

1.         At monthly meetings criticizes every move of the elected officers        

2.         Never has a solution to any issues ...

 

3.         Lacks basic knowledge ... and leadership ability

 

4.         Lacks ... political savvy

 

5.         Lacks ... leadership experience

 

5.         Lacks true union loyalty necessary to deserve your support

 

6.         Encourages fellow union members to file unwarranted NLRB complaints.

(Numbering in original). 

            Mr. McDonnell also urged union members to "cast your ballot in each and every Union election," to "support your leadership," and "to prevent the return of corruption."

            Mr. Capitano's protest is based on the Court Liaison Officer's farewell letter in the Local 210 newsletter.  He claims that the newsletter is in essence a union-financed and union-distributed campaign statement in support of the officers of Local 210 who may run for convention delegate, and against him personally:  "Every member that attends meetings regularly knows who McDonnell is speaking of and [he] is trying to discredit me to the membership."  Mr. Capitano asserts that this union-financed mailing violated the 2006 Election Rules and seeks a wide range of remedies.

Discussion

            Federal law and the 2006 Election Rules provide that union resources may not be used to support or oppose any candidate for delegate.  See 29 U.S.C. § 481(g); 2006 Election Rules, Art. VI, Section G.  This prohibition extends to the use of union publications.  See Election Rules, Art. III, Section L.  Federal regulations specifically prohibit a union from "criticiz[ing] [or] ... attack[ing] a candidate in a union-financed publication."  29 C.F.R. § 452.75.

            The principal issue raised by the protest is whether Local 210's newsletter violated these well-settled rules.  Such cases ordinarily require a close examination of the "tone, timing and contents" of the publication to determine whether it is in fact campaign-related.  See Matter of Local 270, No. 03-SEO-45 (Aug. 2003); Donovan v. Metropolitan Dist. Council of Carpenters, 797 F.2d 140, 145 (3d Cir. 1986).

            However, this case presents a unique set of facts.  Mr. Capitano is currently subject, by his own disciplinary agreement with the GEB Attorney, to a bar on "seek[ing] ... or hold[ing] elected or appointed office ... in or with Local 210, or any other LIUNA-Affiliated Entity."  He thus cannot, at this point, be a candidate for delegate, and has assured this office that he is not currently seeking to be a delegate.  It would thus be premature to reach and decide the question raised by this protest.  Since Mr. Capitano is not now a candidate, he cannot be heard to complain that someone has unfairly campaigned against him.

            Accordingly, Mr. Capitano's protest must at this point be denied.  However, should the bar on his candidacy expire and Mr. Capitano be nominated and found qualified to run for a convention delegate position, he may then renew his protest, in writing, within the 72-hour time frame set forth in the 2006 Election Rules.

            IT IS SO ORDERED, this 24th day of March, 2006.

 

                                                                        Joseph Guerrieri, Jr.

                                                                        LIUNA Elections Officer