In the Matter of Dennis Martire

Findings of Fact

1. On January 26, 1996, Martire traveled from Washington, D.C. to Pittsburgh, Pennsylvania. At the time, Martire was the assistant director of the LIUNA Construction and Maintenance and Service Trades Division ("CMSTD") and an employee of the LIUNA headquarters.

2. LIUNA has a written policy in effect which establishes the procedures to be followed when traveling by air. See Exhibit 2, January 22, 1996, Memorandum from Arthur A. Coia to All Regional Managers and Directors regarding Airline Travel ("LIUNA Travel SOP"). The January 22, 1996 Memorandum "amended" the LIUNA Travel SOP, the travel request form, and all previous existing policies and procedures. Id.

3. The LIUNA Travel SOP enumerates procedures to be followed depending upon an individual's position at LIUNA. Id. For example, General Executive Board members, regional managers, and field auditors need not complete a travel request form. Id. at 2.

4. Employees of the LIUNA Headquarters ". . . are required to fill out a travel request form for all their travel.” Id. The LIUNA Travel SOP states clearly that "[t]he General President's signature must be on the [travel request] form." Id.

5. Ralph Adams ("Adams"), the LIUNA Comptroller, testified that the signature of the General President constitutes the approval required to process a travel request. Tr. 562-63. Adams testified that, on occasion, LIUNA personnel reviewing vouchers and expense documentation may question the validity of an expense charged to the union. Adams testified that, when the expenses charged to the union are determined to be personal in nature, the employee or member is requested to reimburse LIUNA. Tr. 566-70.

6. The LIUNA travel request form attached to the LIUNA Travel SOP states on its face that, for LIUNA Headquarters staff or non-employees, the "authorized signature" required is that of the "General President." Id. at p. 4. Although the travel request form also states that, for Headquarters staff, the department head should initial the travel request, the department head’s approval is not an absolute requirement. See Tr. 342.

7. Carl Booker ("Booker"), Vice President and Assistant to the General President, testified that there is no LIUNA policy requiring a department head's signature, but that the signature was desired to facilitate the department head's awareness of the whereabouts and expenditures of employees within their chains of command. Tr. 343.

8. Terence O'Sullivan ("O'Sullivan"), the LIUNA Chief of Staff, testified that, prior to the events in this matter, the General President delegated the authority to approve travel requests to Booker and himself. Tr. 401-03.

9. On January 23, 1996, James Thomas, director of the CMSTD, requested that his secretary type and issue to the employees of CMSTD, a memorandum enclosing the LIUNA Travel SOP and articulating additional requirements for CMSTD employees to follow when requesting travel approval. See Exhibit 1, January 23, 1996 Memorandum from James Thomas to Dennis Martire, Thomas Biscup, Greg Davis, Robert Setera, Frank Johnson, and Robert Wright, Jr. The January 23, 1996 Memorandum states that "[a]ll requests for travel approval are to be submitted to my office for initial approval. We will then forward the original copy of this request to the General President for his consideration." Id.

10. Although Thomas states that his approval had always been required for persons assigned to the CMSTD, he was aware that, on at least one prior occasion, Martire submitted travel request forms to the general president without Thomas' signature while assigned to the CMSTD. Tr. 47-48, 142-47.

11. On December 21, 1995, Martire submitted a request to travel on January 28, 1996, from Pittsburgh, Pennsylvania, to the LIUNA Tri-Fund Conference in San Diego, California. See Exhibit 5. Martire did not request permission to travel to Pittsburgh in connection with this trip, Tr. 56 and 626, although he was planning to be in Pittsburgh on January 27, 1996, to attend his father's wedding. Tr. 594.

12. Thomas approved the trip from Pittsburgh to San Diego, returning to Washington, D.C.

13. Martire testified that he subsequently decided to conduct some environmental business in Pittsburgh prior to the wedding. Tr. 595. Martire’s father is the assistant Business Manager of LIUNA Local Union 1058, located in Pittsburgh, and Martire has previously dealt with him and other officials of that union. Tr. 576.

14. On January 25, 1996, Martire submitted his request to modify his original travel plan. Thomas, Martire's supervisor, was out of the office on that day. Martire contacted Booker, the next person in the chain of command, by telephone, who verbally approved his proposed travel request. Booker and Martire also testified that they discussed the fact that his father's wedding would take place on the 27th of January. Booker testified that he informed Martire that his proposed trip would be proper, as long as there was no additional cost to the union. Tr. 349-50; 354-55. Booker’s qualification that the approval hinged upon no additional cost to the union is not dispositive of the issue. Such a restriction is not relevant to the test for a § 501(c) violation which is set out on p. 9, infra. Moreover, Martire did not need authority for a trip that involved no additional cost, especially since he was authorized to depart from Pittsburgh.

15. Pursuant to Booker's instructions, Martire directed his secretary to prepare a written request to travel from Washington, D.C. to Pittsburgh, Pennsylvania. See Exhibit 7. Martire told his secretary that Booker’s secretary, Mary D'Avella (“D’Avella”), would stamp the request with the General President's approval. Booker and O'Sullivan testified that, although they were traveling themselves, they remember telephonically approving Martire's request on January 25, 1996, after it was presented to D’Avella.

16. On Thursday afternoon, January 25, 1996, Martire's secretary scheduled him to take a 6:31 p.m., Friday, January 26, 1996, flight to Pittsburgh, Pennsylvania. He planned to conduct the meetings on Saturday morning.

17. On Friday morning, January 26, 1996, Frank Johnson (“Johnson”), a subordinate of Martire, appeared at the LIUNA office in improper attire. He was dressed in casual clothes and running shoes. The office policy required male headquarters employees to wear a coat and neck tie and prohibited running shoes. When Martire attempted to speak with Johnson about his attire, Johnson lunged at Martire and a heated altercation occurred. An investigation was conducted by a number of headquarters staff personnel, wherein Johnson denied that a dispute existed or that the altercation occurred. Tr. 522.

18. Martire spoke briefly to Thomas by phone about the altercation when Thomas called in from out of town. Thomas instructed Martire to take certain personnel actions regarding Johnson. Other headquarters employees were also involved in dealing with Johnson. Martire had a number of meetings with various individuals on January 26, 1996. The headquarters staff required Martire to sit in on interviews and draft a statement regarding the incident that same day. Tr. 522-25.

19. As a result of the time he expected to be consumed in dealing with the incident, Martire realized at approximately 10:00 a.m. on Friday, January 26, 1996, that he would not be able to depart that evening as scheduled. Martire changed the departure time of his flight to 12:40 p.m. on Saturday, January 27, 1996. Tr. 624.

20. Martire arrived at Pittsburgh, Pennsylvania, at approximately 1:35 p.m. on January 27, 1997. Martire testified that he had a meeting with two officials in the back of the church prior to his father's wedding and continued the meeting at a restaurant after the wedding. Tr. 598-600. Martire flew to San Diego to a union conference the next day.

21. At the hearing, Thomas testified he received an anonymous telephone call on the evening of February 15, 1996, informing him that an unnamed LIUNA employee traveled to his father's wedding which had been paid for by LIUNA funds. Tr. 61. Thomas testified that he confronted Martire, who denied any impropriety.

22. Thereafter, Thomas and Martire had a number of discussions relating to Martire's trip and were unable to resolve the issue. Thomas sought the assistance of Booker and O'Sullivan. At the time, LIUNA had not yet been billed for the flight from Washington, D.C. to Pittsburgh, Pennsylvania. With Booker's and O'Sullivan's assistance, a resolution was reached which was satisfactory to all parties. Although Martire stated he believed that he was not obligated to do so, Martire agreed to pay for the cost of the trip from Washington to Pittsburgh to avoid further dispute on this issue. See Exhibit 21.

Discussion.

At issue is the authorization for the cost of the trip from Washington to Pittsburgh. The trip from Pittsburgh to San Diego and a return to Washington was authorized and is not in question. Martire would have been entitled to travel in any event from Washington, D.C. to San Diego.

Representatives and employees of labor unions occupy positions of trust in relation to the union and its members as a group. 29 U.S.C. § 501(a). It is the duty of each such person to hold the organization’s money and property solely for the benefit of the union and its members. Id.

Section 501(c), Title 29, United States Code, states:

Any person who embezzles, steals, or unlawfully and willfully abstracts or converts to his own use, or the use of another, any of the moneys, funds, securities, property, or other assets of a labor organization of which he is an officer, or by which he is employed, directly or indirectly, shall be fined not more than $10,000 or imprisoned for not more than five years, or both.

The GEB Attorney is authorized to investigate violations of federal labor law by any LIUNA member. See EDP, Section 3.

All cases arising under Section 501(c) require an examination of whether the person charged possessed the fraudulent intent required. Courts have taken a variety of approaches in determining the intent of union officials and employees who are charged with violating 29 U.S.C. § 501(c). One approach involves an unauthorized expenditure theory which requires proof that the defendant had a fraudulent intent to deprive the union of its funds and had no good-faith belief that the expenditure was for the legitimate benefit of the union. See, e.g., United States v. Gibson, 675 F.2d 825, 828-29 (6^th Cir.), cert. denied, 459 U.S. 972 (1982).

The First Circuit determines whether the acts of the charged individual were authorized by the union. See, e.g., United States v. Sullivan, 498 F.2d 146, 150 (1^st Cir.) (“. . . the willing acceptance of misappropriated union funds by a recipient who knows that such funds are unauthorized and illegal [demonstrates an intent to defraud]. . .”), cert. denied, 419 U.S. 993 (1974). The Fourth Circuit has adopted the same analysis. See, e.g., United States v. Stockton, 788 F.2d 210, 217 (4^th Cir.), cert. denied, 479 U.S. 840 (1986).

The Fifth Circuit determines if there was a proper authorization and, if so, whether the union benefited from the misuse. Compare United States v. Lavergne, 805 F.2d 517 (5^th Cir. 1986) (government must rebut defendant’s good-faith defense that his actions benefited the union in cases of misuse of authorized funds) with United States v. Nell, 526 F.2d 1223, 1232 (5^th Cir. 1976) (prosecution must only show lack of union benefit once lack of authorization is shown).

The Second Circuit places equal weight on union authorization and benefit. See, e.g., United States v. Butler, 954 F.2d 114, 118 (2d Cir. 1992)(“union official charged with embezzling funds . . . lacks requisite criminal intent when the evidence establishes that he had a good-faith belief both that the funds were expended for the union’s benefit and that the expenditures were authorized (or would be ratified) by the union.”).

The Third, Seventh, Eighth, and Ninth Circuit use a totality of circumstances test which requires the finder of fact to examine all the evidence in light of the circumstances to determine if the requisite intent exists to commit § 501(c) offense. See, e.g., United States v. Oliva, 46 F.3d 320 (3d Cir. 1995); United States v. Floyd, 882 F.2d 235 (7^th Cir. 1989); United States v. Welch, 728 F.2d 1113 (8^th Cir. 1984); United States v. Thordarson, 646 F.2d 1323 (9^th Cir.), cert. denied, 454 U.S. 1055 (1981). Under the totality of circumstances test, authorization and benefit are merely factors to be considered when determining intent. Oliva, 46 F.3d at 324 (3d Cir. 1995).

I choose the totality of the circumstances approach as the most appropriate analysis for a LIUNA matter. Applying the totality of the circumstances test, I find Martire did not have the specific intent to defraud as required by 29 U.S.C. § 501(c).^[1] Martire requested permission to travel from Washington to Pittsburgh, on his way to California. He would have been entitled to travel from Washington to San Diego. Although he did not strictly follow the CMSTD procedure (he bypassed his immediate supervisor), he followed the LIUNA procedure and obtained permission from Booker and O’Sullivan, legitimate supervisors above Thomas within his chain of command. I can infer no improper motive by his bypassing Thomas.

Martire told Booker, his superior, that he was going to stop in Pittsburgh and specifically told him he would attend his father’s wedding at the same time. His father was a union official and the meeting with his father and other union officials would be about union business. Martire had planned to travel a day ahead of the wedding, thus giving him time to conduct the meeting. There is no evidence and no one has alleged that such a meeting the day before the wedding or the morning of the wedding would have been improper.

Instead of departing on schedule to conduct a meeting, he was forced to depart on Saturday, the day of the wedding. Martire testified that he met with several union members at the church and later at a restaurant and discussed union business. Two union members testified that they participated in the meeting.

I believe the meeting at the church, rather than another location, is one of the main reasons the GEB Attorney views this as a violation of the statute; however, in the context of determining specific intent to defraud, I must consider how the meeting came about. Martire had originally planned to meet the union officials on Friday evening or Saturday morning. Circumstances required him to delay the meeting until Saturday. There is no indication that the meeting with the officials was not about union business.

In determining intent to defraud, one must examine the nature of the request, and if there are any indicia of deceit or acts of cover-up. Martire was on a legitimate union trip to California. He sought and received permission to travel to Pittsburgh on business on the way and specifically told the approving official that he would also attend his father’s wedding. This information was known by persons empowered to approve or disapprove.

I find nothing unusual from the fact that the officers were in a union where Martire’s father was assistant Business Manager. As in many large unions, family relationships in LIUNA are numerous.

Subsequently, union officials examined Martire’s expenses as is the custom in all major organizations. They questioned the union purpose of the trip to Pittsburgh. While the matter was under discussion, Martire agreed to pay the expense. Even if the expense had been disapproved, there is no evidence of impropriety or cover-up. The practice of reviewing and disapproving personal or otherwise inappropriate expenses in travel vouchers is an everyday practice in commercial and government organizations.

The GEB Attorney points out inconsistencies in Martire’s statements made to various persons during and after the transaction, as indicating a consciousness of wrongdoing. I must view the statement as any other evidence in the context of whether the evidence proves Martire’s specific intent to defraud the union of travel funds. These inconsistent statements do not affect the following uncontested facts: Martire was entitled to travel to San Diego from Washington. He requested and received permission from persons authorized to give it to travel to Pittsburgh to confer with union officials. He specifically informed his superiors that he was going to attend his father’s wedding in Pittsburgh in the same short time span. The officials nonetheless approved the trip. There is no evidence that meeting with officials from his father’s union was not union business.

Whether it was a good management decision on the part of the supervisors to approve the trip or whether the decision to make the trip under the circumstances was an indication of Martire’s lack of executive skills is not proof of fraud. The purpose of this hearing is to determine whether a disciplinary violation has occurred, not to evaluate the soundness of management decisions. Personnel evaluations for these acts are left to the supervisors of the individuals involved.

Based upon the fact that Martire was authorized to travel from Washington to California, that he told his superiors he was making a stop in Pittsburgh to conduct union business, that he told his superiors he was also attending his father’s wedding, that the officials approved the trip, and that he met with union officials, I do not find a preponderance of evidence that Martire had a specific intent to defraud the union.

Conclusion

The GEB Attorney has not proven by a preponderance of the evidence that Martire committed the violation alleged in Charge I.

CHARGE II

Violation of LIUNA Constitution-Obligations of Members.

In or around January of 1996, Dennis Martire who was a member of LIUNA, failed to conform and comply with the rules, policies and practices adopted by LIUNA; to wit, Dennis Martire did not honestly and accurately follow the standard operating procedures for airline travel approval and submitted a travel request form without disclosing his true reasons for travel and thereby obtained union assets to pay for a one way trip to Pittsburgh, Pennsylvania and associated costs for the undisclosed and unauthorized purpose of attending his father's wedding in violation of Article III, Section 3(b) of the LIUNA Local Constitution which is incorporated in the LIUNA International Constitution by Article XVI, Section 1 of the International Constitution.

Findings of Fact

The Findings of Fact and the discussions thereof, stated above, with respect to Charge I, are adopted as Findings of Fact for purposes of Charge II.

Discussion

Count II alleges a violation of a LIUNA air travel policy, more fully described in Count I above. The count alleges that Martire did not honestly and accurately follow the standard procedures for airline travel approval and submitted a travel request form without disclosing his true reasons for the travel. The charge alleges that he made the trip for the unauthorized purpose of attending his father’s wedding.

In the findings regarding Count I above, I have found that, although Martire bypassed his immediate supervisor, he did obtain proper authorization within the chain of command. I have also found that he did disclose to the approving supervisor that he was attending his father’s wedding during the same period as he was conducting a meeting with union officials. I have found that all the facts were disclosed to the supervisory officials and they approved the request. When the trip was brought to the attention of his immediate supervisor, he questioned the purpose of the trip and brought it to the attention of the supervisory personnel who had granted the original approval. Apparently the approval for the trip was reevaluated and Martire personally paid the plane fare from his own funds, although he disagreed that the trip was improper. There was evidence that LIUNA, like all major organizations, has a procedure for rejecting travel requests which ultimately are found not to be for union business. I found that there was no overt subversion of any material facts and the procedure put in place by the union for these situations worked as it was intended.

Based on those findings, I conclude that the GEB Attorney has not proven Count II by a preponderance of the evidence.

The charge in Count II raises a question regarding the nature of the violations that the GEB Attorney is authorized to bring pursuant to the EDP, Section 3. By custom and usage, there are certain rules that, the violation of which, are treated as administrative or personnel matters in labor union jurisprudence. The International Constitution permits the General President to dismiss at least trial board charges which are not properly the subject of the disciplinary process. See Article IX, Section 18, International Constitution. The language of EDP, Section 3, seems to limit the GEB Attorney’s authority to disciplinary charges. In anticipation of possible future litigation on this issue, and as guidance for the membership in general, the GEB Attorney, the Inspector General, and the General Counsel are requested to draft a prosecution policy on the subject, similar to certain policy statements made from time to time by the Attorney General of the United States. The IHO and the Appellate Officer (“AO”) are willing to advise and counsel.

Conclusion

The GEB Attorney has not proven by a preponderance of the evidence that Martire committed the violation alleged in Count II.

CHARGE III

Violation of LIUNA’s Ethics and Disciplinary Procedure/Obstructions

On or around March 7, 1996, Dennis Martire obstructed or interfered with an investigation being conducted by the LIUNA Inspector General; to wit, Dennis Martire falsely stated words to the effect that he did not know who approved his travel request or how the request was sent to the General President for signature. This conduct constituted “barred conduct” in violation of LIUNA’s Ethics and Disciplinary Procedure and Ethical Practices Code.

Findings of Fact

1. The LIUNA GEB Attorney charges that Martire knowingly made false and misleading statements to the LIUNA Inspector General (“IG”) in that Martire “falsely stated words to the effect that he did not know who approved his travel request or how the request was sent to the General President for signature.”

2. The IG’s office questioned Martire about the submission and approval of his travel request on March 7, 1996, approximately one month after the request was submitted. Transcript at p. 241.

3. Tom Kelly ("Kelly"), of the IG’s office, stated that he questioned Martire on the issues concerning his trip to Pittsburgh. Transcript at p. 247. Kelly testified that Martire said he did not know who approved the request. Transcript at p. 248.

4. Kelly testified that Martire stated that he assumed that D’Avella, Booker's secretary, had obtained any authorizations required prior to stamping the general president's authorization on the request. Transcript at pp. 247-48. Booker is a LIUNA vice president and assistant to the general president. Transcript at p. 336. Kelly further stated that Martire told him that O'Sullivan, the LIUNA chief of staff, may have approved his travel request but that O'Sullivan could not recall at that time. Transcript at pp. 249-50.

5. The GEB Attorney claims that Martire’s statement, in which he said that he did not know who approved his travel request, caused the GEB Attorney and the IG to interview and re-interview a number of witnesses. See GEB Attorney's Post-Hearing Brief at p. 30, § 4.

Discussion

The LIUNA EDP prohibits members from committing barred conduct. Barred conduct is defined to include “obstructing or interfering with the LIUNA Inspector General [and/or] the General Executive Board Attorney . . .”

The GEB Attorney alludes to Title 18 of the United States Code, §§ 1001 and 1503, when he argues that Martire’s statements were an obstruction of an IG investigation. Section 1001 deals with making false statements to an investigator, while § 1503 deals with corruptly attempting to obstruct any officer conducting an investigation. Section 1503 is the most instructive in the context of Charge III, because the offense of obstruction deals with the total effect of the witness’ statement, not merely the statement alone.

In prosecutions involving 18 U.S.C. § 1503, the government must show that a defendant knowingly undertook an action, the natural and probable effect of which would be an obstruction of justice. See, e g., United States v. Wood, 6 F.3d 692 (10th Cir. 1993); United States v. Thomas, 916 F.2d 647, 651 (11th Cir. 1990). The statements must have impeded the investigating agents from uncovering the crime. In a factual situation very similar to the one in this instance, the Wood court found that there was no obstruction because the Federal Bureau of Investigation (“FBI”) agents were not misled by the defendant’s statements and proceeded to discover the facts.

Applying this standard, it is difficult to see how the natural and probable effect of Martire’s vague statements obstructed the IG from determining what occurred. Martire’s statements that he did not know who approved his travel request are at best self-serving, not an act of deception. See Wood, 6 F.3d at 696. The natural effect of these statements would not have misled investigators of the skill and experience of the IG’s office from determining the facts. Id. at 697.

The GEB Attorney argues that, as a result of Martire’s statement, witnesses had to be interviewed or re-interviewed. By March 7, 1997, the IG and all relevant personnel involved on the LIUNA staff knew, or should have known, who had participated in the events leading up to the approval of Martire’s travel request. All the participants were necessary witnesses to be interviewed regardless of the content of Martire’s statement. Under the circumstances, Martire’s conduct was not an obstruction.

Conclusion.

The GEB Attorney has not proven by a preponderance of the evidence that Martire committed the violation alleged in Charge III.

CHARGE IV

Violation of Federal Law-Unlawful Use of Union Resources to Promote Candidacy for Union Office.

Between approximately May of 1995, and May of 1996, Dennis Martire violated a federal law relating to the affairs of a labor organization; to wit, Dennis Martire used, or caused to be used, moneys that LIUNA received by way of dues, assessment, or similar levy, or moneys of an employer, or union resources, including, but not limited to, employee time paid for by LIUNA, LIUNA's facilities, a LIUNA computer, and LIUNA printer to promoted the candidacy of the incumbent General Officers of LIUNA in connection with the election of the 1996 election of the General Executive Board in violation of Title 29, U.S.C. § 481(g).

Findings of Fact

1. In 1979, James Norwood (“Norwood”) created and maintained at the LIUNA headquarters a fund called the Jim Norwood Fund, for the purpose of providing balloons and posters at the national conventions for officers running for reelection to the Executive Board. Tr. 366.

2. The Jim Norwood Fund was operated by various persons until the early part of 1995. At that time, Carl Booker asked Greg Davis ("Davis"), of the LIUNA staff, to take over the operation of the fund. Tr. 535. A few months later, Booker requested that Martire assist Davis in the fund's management and operation. Tr. 369.

3. Davis and Martire sought the advice of LIUNA General Counsel Michael S. Bearse ("Bearse").

4. Based upon the advice he obtained from an outside law firm, Bearse subsequently drafted a Statement of Organization for the 1996 General Executive Board Campaign Committee ("GEBCC"). Tr. 485. Martire was listed as the GEBCC Treasurer. See Exhibit 13, GEBCC Fund Statement of Organization.

5. After drafting the GEBCC Fund Statement of Organization, Bearse met briefly with Davis and Martire and provided them with the documentation and a brief explanation highlighting how to properly operate the GEBCC in compliance with applicable federal labor and tax laws. Transcript at p. 492 and Exhibit 14, Guidelines for Creating and Operating a Campaign Fund for Candidates for Union Office.

6. Davis and Martire operated the GEBCC. To solicit contributions, they established a post office box and asked potential contributors to mail in their contributions. Tr. 539. Davis testified that, despite this request, many contributors attempted to provide contributions directly to Martire and himself personally. Tr. 540.

7. Davis testified that Jim Thomas ("Thomas"), Martire’s department head, recommended that they use self-addressed envelopes to facilitate the transmission of contributions to the post office box. Tr. 540. Davis and Martire implemented Thomas' recommendation.

8. Martire and Davis tracked contributions and, when requested, provided an accounting of contributions. Davis testified that Thomas inquired of him, on at least one occasion, which persons from the CMSTD office contributed to the GEBCC. Tr. 542.

9. Thomas contributed to the GEBCC. Tr. 82. Martire testified that Thomas directed him to inform Thomas who was "behind" in their contributions. Tr. 615. Martire testified that he did so in an e-mail message dated November 8, 1995, which he said was written and transmitted after hours. Tr. 613-15 and Exhibit 9, E-Mail Message From Martire to Thomas dated November 8, 1995, 4:18 p.m.

10. Thomas denied he had solicited this information from Martire. Tr. 86-89.

11. On one occasion, Martire used the office computer and printer to address the contribution envelopes. Thomas testified that he saw Martire perform this act during working hours and told him to refrain from doing so on union time. Tr. 89.

Discussion

Title 29, U.S.C. § 481(g) [LMRDA § 401(g)] prohibits the use of union resources to promote the candidacy of any person in an election. That statute provides:

No moneys received by any labor organization by way of dues, assessment or similar levy . . . shall be contributed or applied to promote the candidacy of any person in an election . . . .

The language of § 481(g) is clear and unambiguous. It means “. . . no monies received by a union can be expended to promote the candidacy of any individual in a union election."Donovan v. Local 719, United Automobile, Aerospace and Agricultural Implement Workers of America (UAAAIW), 561 F. Supp. 54, 57 (N.D. Ill. 1982). Further, "officers and employees may not . . . use union funds, facilities, equipment, stationary, etc., to assist them in campaigning." 29 C.F.R. § 452.76. The term "monies", as used within LMRDA § 401(g), means "anything of value, whether the expenditures be direct or indirect." See Donovan v. Local Union 70. Int'l Bhd. Of Teamsters (IBT), 661 F.2d 1199, 1202 (9th Cir. 1981) (citing 29 C.F.R. § 452.78).

Martire admits using a union computer and printer to address a small number of envelopes for the GEBCC. Martire denies doing so on union time, but the record reflects he used the computer on union time.

Martire’s use of the union computer and printer to address GEBCC contribution envelopes is improper. See, e.g., Brock v. Int'l Union, United Automobile Workers of America (UAW), 682 F. Supp. 1415, 1429 (E.D. Mich. 1988) ("There is little doubt that the use of union stationary, typewriter, and facilities are in plain violation of § 401(g)."), vacated as moot, 889 F.2d 685 (6th Cir. 1989); Brock v. Int'l Union of Operating Engineers, Local 369, 790 F.2d 508, 513 (6th Cir. 1986) (by employing union's secretary and using union's copy machine for campaign purposes, union president committed plain violation of 29 U.S.C. § 481(g)). See also In the Matter of Antonio Garcia, IHO Order and Memorandum Docket No. 95-32D (March 20, 1996) (local union officer misusing union property and secretarial time in campaign for office), aff'd, 96-010-IHO (July 19, 1996) (LIUNA Appellate Officer).

Martire's conduct is not excused by the minimal value of the resources used, nor is it excused because he offered to reimburse LIUNA for use of its facilities. See Schultz v. Local 6799, United Steelworkers of America, 426 F.2d 969, 972-73 (9th Cir. 1970), aff’d, 403 U.S. 333 (1971) (§ 401(g) violation not excused where reimbursement made for union funds used by candidate for union office).

Under the just cause standard to be applied in these cases (see LIUNA Ethics and Disciplinary Procedure § 5(e)), the fact that a violation occurred does not, alone, justify a penalty under the LIUNA EDP.

The events supporting this charge were far removed from the actual LIUNA International Convention and election. For example, the e-mail messages and other items alleged as a use of union resources and campaigning occurred in 1995, at least 9 months before the international convention.

As demonstrated above, Martire's superiors were aware of Martire's work on behalf of the GEBCC. It was no secret that Martire was working on the GEBCC.

Prior to May 22, 1996, it does not appear that LIUNA campaign rules prohibited campaign funds such as the GEBCC from being established and administered. See, e.g., In the Matter of the Protest of Frank E. Johnson, Election Officer Protest No. 116 (August 5, 1996) (EO approved use of Norwood Fund at regional level to pay for tickets to charitable golf game where campaigning also took place).

Martire was not a candidate for office and was not seeking to benefit himself. He was appointed to do the job by his superiors.

During the LIUNA International election campaign, the usual remedy for election violations for use of union resources was a directive to cease and desist. See, e.g., In the Matter of Victor Sansanese, Election Officer Protest No. 125 (August 7, 1996) (use of LIUNA logo in campaign literature); In the Matter of Carmen Francella, Election Officer Protest No. 121 (July 25, 1996) (union counsel advising candidate); In the Matter of the Protest of Samuel Capitano, Election Officer Protest No. 95 (June 20, 1996) (employer contributions to candidate’s campaign). No disciplinary charges were brought for these election violations. Consideration of these rulings brings into play a standard rule of labor arbitration due process: that the organization should follow a consistent and uniform procedure regarding discipline. See, e.g., In Re Beatrice Foods Co., Inland Center, Warehousing Division and International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local 838, 74 LA 1008, 1011 (1980) (employer should have uniform procedure for employee discipline).

As an election violation, Martire’s actions did not and could not have had a material effect on the outcome of the elections conducted at the 1996 LIUNA International Convention.

Under these circumstances, there is no just cause to punish Martire for his actions. See, e.g., In Re Hiram Walker & Sons, Inc. and Distillery Worker’s Union, Local 55, 75 LA 899, 900 (1980) (just cause mandates that the punishment assessed be reasonable under the circumstances); see also In Re City of Portland, Bureau of Police and Portland Police Association, 77 LA 820 (1981); In the Matter of Local Union 294 (Cannon and Reese v. Muesing and Robertson, IHO Order and Memorandum, Docket No. 96-89TB, (January 10, 1997) (conduct giving rise to charges not cause for discipline); In the Matter of Local Union 82 Trial Board (Latino), IHO Order and Memorandum, Docket No. 96-07TB, (May 16, 1996) at 4-6 (no sanctions imposed after finding a violation of union rule where there was no intent to defraud union).

Conclusion

There is no just cause to penalize Martire for the acts alleged in Charge IV.

Decision

The GEB Attorney has failed to sustain his burden of proof by a preponderance of the evidence on Charges I, II and III. There is no just cause to punish Martire for the violation alleged in Charge IV.

Retaliation

I write separately to address the allegations of retaliation about which each of the GEB Attorney’s witnesses testified in response to his questioning. At the outset it must be clear that Martire is not the subject of the allegations. Some witnesses testified that they believed the changes in their work situation were caused as a result of their assistance provided to the IG. The witnesses testified that their beliefs were founded on speculation and no witness presented evidence in this case linking any particular personnel actions to assistance provided to the IG. The IG and the GEB Attorney were unable to find any such conduct after several days of interviews.

The IG, the GEB Attorney, and the Election Officer, are quick to respond to allegations of retaliation. On numerous occasions during election protests, I have referred allegations of retaliation to the IG and his response was quick. The IG’s staff, all former professional law enforcement officers, will not hesitate to root out any retaliation. The office of the IG is always willing to receive confidential reports of such conduct, and members should not feel reluctant to report any such activity.

PETER F. VAIRA

INDEPENDENT HEARING OFFICER

^[1] Although I use the totality of circumstances test, the result would be the same under any other test set out above.

Order and Memorandum

Procedural History