Brennan vs Local 300

1974 U.S. Dist. LEXIS 12150, *; 85 L.R.R.M. 2648

Peter J. Brennan, Secretary of Labor, United States Department of Labor, Plaintiff v. Local Union 300, Laborers' International Union of North America, AFL-CIO, Defendant.

No. 72-3042-LTL.

United States District Court, Central District, California.

1974 U.S. Dist. LEXIS 12150; 85 L.R.R.M. 2648

February 21, 1974.

CORE TERMS: election, monies received, candidate, levy, conclusions of law, qualification, expended, ballot, voting, nomination, incumbent, telephone, voter, rings, dial, mail, election process, times relevant, appointed, envelopes, calendars, protest, messages, industry affecting commerce, et seq, failed to provide, general election, prescribed, distribute, violating

OPINIONBY: [*1]

CRARY, D.J.

OPINION: Findings of Fact and Conclusions of Law

CRARY, D.J.: The above cause having come on regularly for trial on January 22, 1974, January 23, 1974, January 24, 1974, and January 25, 1974, in the above-entitled court, before the Honorable E. Avery Crary, Judge Presiding without a jury; and the issues having been duly tried and a decision having been duly rendered, the Court makes the following findings of fact and conclusions of law:

Findings of Fact

1. This action is brought by the plaintiff under Title IV of the Labor-Management Reporting and Disclosure Act of 1959 (Act of September 14, 1959, 73 Stat. 519 et seq., 29 U.S.C. § 401 et seq.), hereinafter referred to as the Act. Plaintiff seeks a judgment declaring the election for all officers conducted by defendant on June 11, 1972 to be null and void and directing defendant to conduct a new election for all officers under the supervision of the plaintiff.

2. Defendant is, and at all times relevant to this action has been, an unincorporated association maintaining its principal office at 2005 West Pico Boulevard, City of Los Angeles, County of Los Angeles, State of California, within the jurisdiction of this Court. [*2]

3. Defendant is, and at all times relevant to this action has been, a local labor organization engaged in an industry affecting commerce, within the meaning of Sections 3(i), 3(j), and 401(b) of the Act (29 U.S.C. 402(i), 402(j), and 481(b)).

4. Defendant is, and at all times relevant to this action has been, chartered by and subordinate to the Laborers' International Union of North America, AFL-CIO, hereinafter referred to as the International, an international labor organization engaged in an industry affecting commerce within the meaning of Sections 3(i) and 3(j) of the Act (29 U.S.C. 402(i) and 402(j)).

5. On May 11, 1972, prior to defendant's nomination meeting, defendant's Executive Board appointed an Election Committee consisting of Bucky (Joseph) Micelli, Willie Moto Robinson, and Joe (Jose) Cruz, with Micelli being Chairman. Said Committee was appointed pursuant to Article VI, Section 1, Subsection (c) of defendant's Local Constitution, which was the Uniform Local Union Constitution of the Laborers' International Union of North America.

6. Defendant's nomination meeting for the general election of officers was held on May 11, 1972. During said nomination meeting the [*3] Chairman of the Election Committee (Micelli) announced that qualification meeting would be held on May 16, 1972 at 5 P.M.

7. A qualification meeting was held on May 16, 1972 as announced at defendant's nomination meeting. The following candidates did not appear at said qualification meeting:

a. Manuel Renteria, candidate for Business Manager;

b. Carlos Enriquez, candidate for Secretary-Treasurer;

c. Ray Randolph, candidate for Auditor. These candidates were absent on official union business.

8. During 1972 Article VI, Section 2, of defendant's Local Constitution required that members be given notice of the time and place of any qualification hearing.

9. The candidates named in Finding of Fact 7 above were not examined for their qualifications at any meeting of which defendant's members were given notice.

10. Defendant's general election of officers was held on June 11, 1972 at defendant's main office at 2005 West Pico Boulevard, Los Angeles, California. At said election, the persons appointed as set forth in Finding of Fact 5 above (Micelli, Robinson, and Cruz) served as Judges of Election.

11. During 1972 Article VI, Section 3 of defendant's Local Constitution provided [*4] in part as follows:

"(a) The voting area shall be located in a hall or room where all of the functions of the election process will be open and visible at all times, to the Watchers and the Election officials charged with the proper conduct of the election.

* * *"

12. At defendant's election on June 11, 1972 all of the functions of the election process were not open and visible to the Watchers. The Watchers were restricted to the stage in the Union auditorium from which they could not see all of the functions of the election process.

13. During 1972 Article VI, Section 3, subsection (d) of defendant's Local Constitution provided in part:

"* * *

As each member is qualified, he shall be required to sign his name and book number on a Membership Voting Register, which Register, when the voting has been concluded, shall then be signed, at the end thereof, by the Secretary-Treasurer and the three Judges of Election."

14. At defendant's election on June 11, 1972 members were not required to sign their names on a Membership Voting Register or on any other document.

15. During 1972 Article VI, Section 3(e) of defendant's Local Constitution provided in part:

"(e) After the member has [*5] been qualified, he shall be given an official ballot and permitted:

If a paper ballot is used, to mark the ballot, indicating his choice of candidate for each office and elective position, in a secret manner and in a manner where such choice cannot be identified with the voter;

* * *"

16. During defendant's election on June 11, 1972 Joe (Jose) Cruz, one of the three Election Judges, frequently went into the voting booths with the voters, thereby violating the secrecy of the ballot.

17. Defendant expended monies received by way of dues, assessment or similar levy to purchase the following items from Sales Boosters, Inc., Los Angeles, California:

a. The calendars and other items described on Invoice No. 8121 dated November 19, 1971 (Plaintiff's Exhibit 38) for $7,586.25.

b. The telephone dial rings described on Invoice No. 573 dated March 22, 1972 (Plaintiff's Exhibit 44) for $2,152.50.

C. The telephone dial rings described on Invoice No. 735 dated April 20, 1972 (Plaintiff's Exhibit 53) for $2,100.

18. Defendant expended monies received by way of dues, assessment, or similar levy to mail and/or otherwise distribute all or a portion of each of the items described in Finding of [*6] Fact 17.

19. Defendant expended monies received by way of dues, assessment, or similar levy to pay Aldine Company of Los Angeles for the publication of the following three issues of the Laborers' News, at the cost indicated:

a. Volume 1, No. 1, August, 1971, for $935.02;

b. Volume 1, No. 2, December, 1971, for $1,446.90;

c. Volume 2, No. 1, June, 1972, for $1,607.00.

20. Defendant expended monies received by way of dues, assessment, or similar levy to mail and/or otherwise distribute all or a portion of each of the three issues of the Laborers' News described in Finding of Fact 19 above.

21. Defendant expended monies received by way of dues, assessment, or similar levy to purchase the following items from the Aldine Company, Los Angeles, California:

a. 40,000 match books for $735, delivered October, 1971 (Order No. 21310 dated June 18, 1971).

b. 13,000 Christmas messages in English and Spanish and 13,000 Christmas envelopes for $945, delivered December 6, 1971 (Order No. 23650 and No. 23651, both dated November 11, 1971).

c. 15,000 daily record calendars for $972.99, delivered March, 1972 (Order No. 24900 dated January 31, 1972).

d. 14,000 manila envelopes for telephone dial [*7] rings, for $357.00, delivered April 11, 1972 (Order No. 26409 dated March 29, 1972).

22. Defendant paid monies received by way of dues, assessment, or similar levy to mail the following items on its Postage Meter PB 316445:

a. The Christmas messages and envelopes referred to in Finding of Fact 21 b above.

b. The daily record calendars referred to in Finding of Fact 21 c above.

23. Defendant paid monies received by way of dues, assessment, or similar levy to the Krupp Organization, Los Angeles, California, a commercial mailer, for the work indicated below.

`Date of Order`	`Work Performed`	`Charge`
`December 9, 1971`	`Placing address labels on 11,324 copies of "Laborers News" - Vol. 1, No. 2 - 12/71`	`$ 92.68`
`April 14, 1972`	`Placing of address labels on 11,868 envelopes to be used for mailing telephone dials`	`$ 64.10`
`May 30, 1972`	`Placing address labels on 11,628 copies of "Laborers' News" - Vol. 2, No. 1 - dated June 1972`	`69.39`
		`$226.17`

24. Defendant also paid $588.42 from monies received by way of dues, assessment, or similar levy, to mail materials on Non-Profit Organization Postal Permit No. 28560 as indicated below.

`Date of Mailing`	`Material Mailed`	`Cost`
`December 15, 1971`	`Laborers News - Vol. 1, No. 2: 11,324 copies`	`$192.51`
`April 26, 1972`	`4879 Dial Rings`	`$ 82.95`
`April 28, 1972`	`3306 Dial Rings`	`$ 56.21`
`May 13, 1972`	`2182 Dial Rings`	`$37.10`
`May 22, 1972`	`1292 Dial Rings`	`$ 21.97`
`May 31, 1972`	`Laborers News - Vol. 2, No. 1: 11,628 copies`	`$197.68`
		`$588.42`

[*8]

25. The following items referred to above were used by defendant to promote unlawfully the candidacy of incumbent officers Renteria and Enriquez.

a. The telephone dial rings referred to in Findings of Fact 17 b, 17 c, 18, 21 d, 23, and 24 (Plaintiff's Exhibit 68).

b. The issues of the Laborers' News referred to in Findings of Fact 19, 20, 23, and 24 (Plaintiff's Exhibits 73, 74, and 75).

c. The match books referred to in Finding of Fact 21 a (Plaintiff's Exhibit 76).

d. The Christmas messages referred to in Findings of Fact 21 b, and 22 a (Plaintiff's Exhibit 77).

e. The daily record book calenders referred to in Findings of Fact 21 c, and 22 b (Plaintiff's Exhibit 78).

26. The defendant failed to provide adequate safeguards to insure a fair election.

27. Alfred C. Magallanes, a member in good standing of defendant, sent a letter dated May 17, 1972 to the Laborers' International, Washington, D.C., concerning the failure of certain candidates to appear at the Qualification Meeting on May 16, 1972. By letter dated May 24, 1972, Peter Fosco, General President of the Laborers' International, replied to said letter of Magallanes.

28. By letter dated July 3, 1972 addressed to [*9] the General Executive Board of Laborers' International, Alfred C. Magallanes and Antonio E. Olea, members in good standing of defendant, protested defendant's June 11, 1972 election of officers. Said protests were set for hearing in San Francisco and subsequently denied; and Magallanes and Olea filed a complaint with the plaintiff on October 24, 1972. The said complainants did not attend the hearing in San Francisco.

29. Plaintiff investigated and, as a result of facts shown by his investigation, found probable cause to believe that violations of Title IV of the Act (29 U.S.C. § 481, et seq.) had occurred and had not been remedied at the time of the institution of the action.

30. Any findings of fact contained in Conclusions of Law are deemed incorporated herein by reference.

31. The incumbent slate won the election by large margins as to most officers.

Conclusions of Law

1. The Court has jurisdiction of this action pursuant to Section 402(b) of the Act (29 U.S.C. 482(b)).

2. Complainants exhausted the remedies available under defendant's Constitution and By-laws within the meaning of Section 402(a) of the Act, 29 U.S.C. 482(a).

3. The Secretary of Labor's determination [*10] that probable cause existed for the commencement of this action is conclusive. Wirtz v. American Guild of Variety Artists, 267 F. Supp. 527, 534 (S.D.N.Y. 1967); Wirtz v. Local 30, International Union of Operating Engineers, 34 F.R.D. 13, 14 (S.D.N.Y. 1963).

4. Defendant violated Article VI, Section 2 of its Local Constitution by failing to follow the candidate qualification procedure prescribed therein with respect to incumbent candidates Manuel Renteria, Carlos Enriquez, and Ray Randolph.

5. Defendant violated Article VI, Section 3(a) of its Local Constitution by failing to provide a voting area as prescribed therein. Hodgson v. United Mine Workers of America, 344 F. Supp. 17, 31 (D.C. Dist. Col. 1972).

6. Defendant violated Article VI, Section 3(d) of its Local Constitution by failing to require each voter to sign his name on a Membership Voting Register.

7. Defendant violated Article VI, Section 3(e) of its Local Constitution by allowing an election judge to enter the voting booths with the voters, thereby violating the secrecy of the ballot.

8. The foregoing violations by defendant of its Local Constitution also constituted violations of Section 401(e) of the Act, 29 U.S.C. [*11] 481 (e).

9. Defendant violated Section 401(g) of the Act, 29 U.S.C. § 481(g) by expending monies received by way of dues, assessment, or similar levy to promote the candidacy of incumbent officers. Hodgson v. United Mine Workers Of America, supra, pages 22-24.

10. Defendant failed to provide adequate safeguards to insure a fair election within the meaning of Section 401(c) of the Act (29 U.S.C. 481(c)).

11. The foregoing violations may have affected the outcome of the election, within the meaning of Section 402(c) (2) of the Act, 29 U.S.C. 482(c) (2). Wirtz v. Hotel Employees, 391 U.S. 492, 505-509 (1968).

12. The foregoing violations do not extend beyond the protests filed with the International by the complainants, particularly since the protest need only give fair notice of the violations. Wirtz v. Laborers' Union, 389 U.S. 477 (1968); Compare: Hodgson v. Steelworkers, 403 U.S. 333 (1971).

13. Any conclusions of law contained in Findings of Fact are deemed incorporated herein by reference.