PETER 1. VAIRA
INDEPENDENT HEARING OFFICER
SUPPLEMENTAL ORDER AND MEMORANDUM
This Supplemental Order and Memorandum addresses the issues raised in tire Request for
Reconsideration of the IHO Order and Memorandum of September 27, 2000 (September 27
Order) received by the IHO on or about October 3, 2000, regarding election procedures.
In the September 27 Order, the IHO held that Local 81 charged excessive fees for its office secretary when he oversaw the candidates affixing the membership mailing labels to their campaign literature. The union required tire mailing to be performed on Sunday. The candidates were required to pay the office secretary double time, a total of $48.80 per hour. The IHO held that the cost of $48.80 per hour for approximately four hours was excessive for the task involved, and was an unnecessary burden on the candidates' right to campaign.
Local 81 contends that the $48.80 per hour rate was contained in the Department of Labor suggested rules for the election which were announced to all candidates, and no one objected.
It is misleading to characterize the pay rate of the office secretary as being suggested by the Department of Labor. In reality, tine officials of Local 81 informed the Department of Labor that Local 81 wanted to hold the campaign mailings on Sunday and that the rate for persons on that day would be double-time. The Department of Labor informed the local officials that if anyone objected, another day should be selected. This procedure is not the suggestion of the Department of Labor.
Whether a candidate objected to the procedure is not determinative of the issue of the reasonableness of the costs. As discussed in more detail below, the non-incumbent candidates are in a difficult position. They are not free to go elsewhere for the mailing services, and often are not familiar with election procedures, or the cost structure of the union. For example, it is doubtful that any non-incumbent was aware that the ° suggested' procedures of the Department of Labor were not really suggested by the Department of Labor. The test is not whether anyone objected to the procedure and the costs; the test is whether the procedure and costs are reasonable.
At the outset the IHO does not ascribe any bad faith to the decision leading up to the Sunday mailings, and the expenses set for them. Additionally, the fact that mailings were processed on Sundays in past elections, requiring the candidates to pay double time rate for persons supervising the mailings, will not excuse an unreasonable charge.
The IHO will strike down a procedure, not because he finds that there was a deliberate intent to impede a campaign, but because the procedure as it is applied is an undue burden on the campaign procedure. A union candidate is not in a free advertising market. He cannot go elsewhere to obtain the membership list, and be cannot take the list to an outside company to have it printed or addressed on his own time. 'The candidate is bound to the union's procedures. Accordingly, the union's procedures are closely examined.
Local 81 contends that the office secretary's normal Sunday wage is $48.80 including benefits. The local contends that this wage was set pursuant to the collective bargaining agreement and the vote of the Executive Board. Local 81 misconstrues the IHO's ruling. The IHO does not believe that it was necessary to have someone watching the candidates affix their own labels at $48.80 an hour.
2
The IHO suggested using a Local 81 retiree who need not be paid $48.80 an hour to watch candidates affix labels. The Local stated that no retiree would work for less than $48.00 per hour. The IHO has some doubts about this conclusion; however if Local 81 is concerned wide upsetting the wage structure it may pay a person $48.80 per hour from its own expense fund; however the candidates may not be charged any more than a reasonable cost for someone to watch them affix labels. Local 81 should be aware that a local union election is required to be run by the local union; it should not expect to always be completely reimbursed for funds that were expended. Union democracy costs money; the local union must bear some of these costs.
Local 81 chose Sunday as a mailing day; having done so, it was required to cover any extra expenses that were imposed as a result of the Sunday mailings.
Local 81 points out that the office secretary did not accompany the candidates to the post office. The Executive Board states that the Ethical Practices Code (EPC) requires an officer to accompany the candidates to the post office. The IHO does not read that requirement into the EPC. The EPC simply requires that the membership list remain secure. Any reasonable steps will suffice. The opportunity for the candidates to copy the list from the already affixed labels on the short trip from the union office to the post office is slight; the need for security at that point is not great.
Bulk Mailing
In the September 27 Order, the IHO questioned whether the Sunday mailing schedule prevented the protestors from utilizing their bulk mailing privileges. It does not appear from the information obtained that all parties understood that the non-incumbents were required to take their mailings to the post office during mailing hours to take advantage of the bulk mail rate.
The local 81 contends that several persons would be required to process the bulk mail, and the cost for such at double time would have been more than the regular mail. The IHO assumes that the sorting and bundling of the bulk mail would have been done by the candidates; there was no need to have union personnel performing such tasks.
At this point, the IHO is not convinced that the non-incumbent candidates pressed their demands to utilize the bulk mail privileges, and they were prevented from doing so by the Local Union.
The IHO will keep that portion of the September 27 Order open regarding paying the protestors the difference between the regular mail rate and the bulk mail rate. The protestors are requested to send the IHO a memorandum demonstrating why they were prevented from using the bulk rate, and the circumstances of how this occurred. They are to send a copy of their submission to the IHO. The IHO may hold a telephone hearing to clarify the matter.
The September 27 Order is otherwise affirmed. All candidates who paid $48.80 for the services of the office secretary will be reimbursed the amount over the normal hourly wage of a laborer under the collective bargaining agreement. Local 81 will bear the extra costs; the office secretary will not be required to make any reimbursement
PETER 1. VAIRA
INDEPENDENT HEARING OFFICER
Dated:11/02/2000
Local 81
John Burch
Henry Lemanski
Richard Johnson
