In the Matter of LIUNA Local 646(McAdams et, al)

d. James ''Red'' Frazier (''Red Frazier''), the winning candidate for Business Manager, participated in improper campaign activities and was barred from running for election because of a prior federal felony conviction.

The Independent Hearing Officer (AIHO@) held a hearing on September 25, 1995, in St. Louis, Missouri. Several of the above-named protestors testified on behalf of all of the Protestors. The Judges, the Business Manager and the Financial Secretary also testified.

The election complaints of the Protestors are GRANTED in part and DENIED in part. Based upon the testimony at the hearing and the investigation by the IHO, the Election of Local 646 is set aside, and a new election is ordered for all offices. In the new election, the Judges cannot serve as candidates. Lacy is not qualified to run as candidate for election if she continues to hold office in the National Association of Letter Carriers (''NALC''). William Frazier is not working at the calling and cannot run for office. Red Frazier is barred from holding office by the provisions of Title 29, United States Code (''U.S.C.''), § 504, and cannot run as a candidate unless he obtains relief from this bar as set out in the statute.

Ballot Secrecy

Findings of Fact

1. The Election of officers for Local 646 was held on May 25, 1995, in Jerseyville, Illinois.

2. As of May 25, 1995, there were fifty-five members of Local 646. Each ballot in the Election was marked at the top with a number from one to fifty-five. Transcript of September 25, 1995, 76-77, (hereafter referred to as ''Tr.'')

3. During the balloting, as individual union members came into the voting area to cast their vote, Sally Widowski (''Widowski''), a Judge, handed each voter a numbered ballot in numerical order. Tr. 112-114.

4. The Protestors contend that, as the ballots were handed out, the Judges called out the individual ballot number to the person who received the ballot. At least two protestors stated this procedure was followed.

5. Robert McAdams testified that, when he was presented his ballot, one Judge said, ''Andy, you are number 14,'' or words to that effect. (Robert McAdams is known as Andy.) Michael McAdams testified that he also was told his number. Tr. 34-36 and 51-52.

6. The Judges dispute that they followed such a procedure, except that Widowski referred to member Sandy Turner's (''Turner'') number when Turner questioned why the process was being followed. Tr. 112-113.

7. For the same reason, Red Frazier, the Business Manager, stated that the identity of one voter was known. Tr. 160.

8. I credit the testimony of the Protestors to the extent that there was some public acknowledgment by the Judges of the number on the ballots as they handed them out.

Conclusions

1. Union election activity is regulated by 29 U.S.C. §§ 401 to 531, known as the Labor Management Reporting and Disclosure Act (''LMRDA''). 29 U.S.C. § 481(b) states, ''[e]very local labor organization shall elect its officers not less often than once every three years by secret ballot among the members in good standing.'' (emphasis added).

2. The statute defines ''secret ballot'' as ''the expression by ballot, voting machine, or otherwise, but in no event by proxy, of a choice with respect to any election or vote taken upon any matter, which is cast in such a manner that the person expressing such choice cannot be identified with the choice expressed.'' 29 U.S.C § 402(k).

3. Courts have interpreted the provisions of 29 U.S.C. § 402(k) to be mandatory. The ballots cannot be marked in such manner that the voter can be identified with his/her choice. See Brennan v. Local 3489, United Steelworkers of America, AFL-CIO, 520 F.2d 516, 522 (7th Cir. 1975); Marshall v. Local Union 12447, United Steelworkers of America, AFL-CIO, 591 F.2d 199, 204 (3d Cir. 1978).

4. ''Any post-voting device by which it can be determined how a particular voter voted would be a violation of secrecy (such as signatures or other identifying marks on the ballot, or extracting each ballot from the ballot box and examining it immediately after it has been cast).'' Bachowski v. Brennan, 413 F. Supp. 147, 150 (W.D. Pa. 1976).

5. A violation of 29 U.S.C. § 482 will cause an election to be declared void if ''. . .the violation. . .may have affected the outcome of an election . . .'' 29 U.S.C. § 482(c)(2).

6. The secrecy requirement was of utmost importance to the drafters of the LMRDA. ''By imposing the requirement of secrecy Congress meant to eliminate any form of potential coercion or intimidation which might occur if it could be learned in any manner how a individual voter had voted.'' Bachowski at p. 150.

7. The integrity of the election process demands that the individual member must not fear his/her vote will be known. In the instant case, a number of members were concerned about the identity of their votes.

8. The secrecy of the balloting process was compromised. While I cannot determine the number of persons who might have been affected by the lack of secrecy, this particular election violation is given great deference by the courts and the Department of Labor. The members were cognizant that at least the Judges could have determined the votes of some members, were they so inclined. Although I cannot assign any improper motive to the Judges, the mere possibility that such information could be used to determine, after the Election, how an identified member voted, taints the voting atmosphere and undermines the integrity of the Election. Given the previously mentioned circumstances, in addition to the problem regarding the Judges discussed below in Part B, a new election will be ordered.

Decision

The election protest regarding the secrecy of the Election is GRANTED, and a new election for all offices is ordered for Local 646.

The Judges of Election

Findings of Fact

1. Judges Margie Shackles (''Shackles'') and Widowski, in addition to acting as Judges, were also candidates for union auditor.

2. The LIUNA Uniform Local Union Constitution (“Constitution”), Article VI, Section 1(c), states in pertinent part: ''[t]hree Judges of Election shall be appointed prior to the nomination meeting by the Executive Board of the Local Union. They shall not be candidates for office but they shall possess all the qualifications required of candidates for office except they may be retired;'' (emphasis added). Article VI, Section 1(c).

3. There was no evidence presented at the hearing that suggests that any Local Union member purposely violated the Constitution; however, it appears that the officers misinterpreted Article IV, Section 1(c), to allow Shackles and Widowski to be both candidates in the Election and Judges.

Conclusions

1. The Constitution clearly prohibits Judges from being candidates in the Election.

2. Whatever the intentions of the officers and the Judges, this provision of the Constitution cannot be waived.

3. The Judges are to maintain integrity and, thus, should not be in the position of being subject to criticism for possible conflict of interest.

4. This infraction, along with the problems of ballot secrecy discussed in Part A of this decision, requires a new election.

Decision

A new election for Local 646 is ordered. In this new election, Judges may not be candidates for office.

Donna Lacy

Findings of Fact

1. Lacy is a member of Local 646.

2. Lacy was the incumbent Financial Secretary for Local 646. She was renominated for that position and was qualified by the Judges. Lacy won the Election. Tr. 7.

3. The Constitution states, in part:

No person shall be eligible to hold any office in the Local Union if he has not been regularly working at the calling of the International Union during the entire year immediately prior to nomination. ''Working at the calling'' shall be defined to include...(d) [p]eriods of unemployment where the member was available for and continuously and actively sought employment at the calling which shall be understood to require full compliance with the lawful rules of the referral service of hiring hall, if any, operated by the Local UnionY

Article V, Section 4(d).

4. For the two years prior to the election, Lacy was, and still is, a part-time United States Postal Service letter carrier and works between 20 and 40 hours per week in that position. She is also a member of the NALC and is Financial Secretary for a local union of the NALC. Tr. 10-12.

5. From May 1994 to May 1995, in addition to her work at the post office, Lacy worked frequently as a laborer. Lacy worked one day in March 1995, and several days a week during the Summer of 1994. Tr. 68-76.

6. During this time period, Lacy testified that her labor jobs consisted of laying concrete, running a concrete chute and working as a flagman. Lacy also testified that she periodically declined jobs as a laborer to permit others to work, since she had other employment as a letter carrier. Lacy further testified that, at least four times a week, she appeared for the morning showup at the Local 646 union hall at approximately 6:00 a.m. and she regularly signed in on the required monthly sign-in sheet. Tr. 70-76.

7. The Protestors complain that Lacy should not have been qualified to run in the Election because her work as a letter carrier and her status as an officer of NALC prevented her from working at the calling for the past year and thus, she could not satisfy Article V, Section 4(d). Tr. 7-12.^[1]

Conclusions

1. There is no per se rule barring a LIUNA member from belonging to another union. A member of LIUNA, when unable to find work at the calling, may work at another trade, as long as he/she complies with Article V, Section 4, of the Constitution.

2. The Constitution does not speak to whether a LIUNA officer can be an officer of another union.

3. The sign-in provisions of Local 646 permit Lacy to work at the calling of both unions. While the sign in provisions of Local 646 technically permit Lacy to qualify as working at the calling, it is apparent that her main employment is with the Postal Service.

4. I conclude that Lacy declines laborer employment because of her post office employment, and will only accept a Laborers' job if it does not conflict with her letter carrier work. On this record I cannot say she would not have the same attitude toward her LIUNA officer position.

5. Although the sign-in provisions of Local 646 permit Lacy to continue to work in both unions, serving as a officer of a union, no matter how minor the position, requires a dedication to that position and that union. It requires an ability to place the demands of that officer position above other commitments, including other work.

6. I conclude that the time requirements of union leadership are inconsistent with holding an office in another union. In the forthcoming election, Lacy is not qualified for LIUNA office if she continues to hold an office in NALC.

Decision

The election protest concerning Lacy is GRANTED. In the forthcoming election, Lacy may not be qualified for LIUNA office if she continues to hold an office in NALC.

William Frazier

Findings of Fact

1. William Frazier is a member of Local 646.

2. William Frazier has been disabled for the past several years and has not engaged in labor work for Local 646 during the year prior to May 26, 1995. Tr. 14.

3. William Frazier works in the Local 646 office in the unofficial position of Assistant Business Manager. Tr. 151.

4. William Frazier was a candidate for the position of Delegate to the District Council in the Election and won by three (3) votes. Tr. 14.

5. The Protestors allege that William Frazier should not have been qualified to run in the Election because his disability prevented him from working at the calling for the year prior to the Election and, thus, did not satisfy Article V, Section 4(e).^[2]

6. The Constitution states, in pertinent part:

''Working at the calling'' shall be defined to include…(e) [m]embers who can prove they were unable to work because of temporary illness or disability of less than one year so long as that member has a reasonable expectation of returning to work in the foreseeable future.

Article V, Section 4(e).

7. Testimony presented at the hearing disclosed that William Frazier has not participated in Laborers' work for the year preceding the election. No evidence was presented that he had any ''reasonable expectation to return to labor work for Local Union 646 in the foreseeable future.''

Conclusions

1. William Frazier did not work at the calling of the International Union during the year proceeding the May 25, 1995 Election.

2. William Frazier was not an eligible candidate for election under Article V, Section 4(e).

Decision

The Election protest regarding William Frazier is GRANTED. William Frazier is not qualified to be a candidate in the forthcoming Local 646 election.

Red Frazier

Findings of Fact

1. Red Frazier was incumbent Business Manager for Local 646. He was renominated and found qualified by the Judges to run in the Election. He won the Election. Tr. 7.

2. The Protestors contend that Red Frazier should not have been qualified to run for office because of his prior federal conviction. Tr. 17-18.

3. On December 4, 1986, shortly after he became Business Manager for Local 646, Frazier was convicted of conspiracy to commit mail fraud and was sentenced to one year's probation (later reduced to six months) and ordered to pay $11,153.13 in restitution. United States v. James L. Frazier, Criminal No. 86-50024 (S.D.Ill.).

4. According to the LIUNA Inspector General (AIG@), Red Frazier was convicted of conspiracy to defraud his automobile insurance carrier by selling his car to a person purporting to be a ''hot car'' dealer and then reporting the car as stolen. He then collected his insurance loss value of the automobile. The ''hot car'' dealer, in fact, was an undercover FBI agent. Report of IG dated July 18, 1995.

5. Red Frazier testified that the LIUNA Southwestern Illinois Laborers' District Council (''District Council'') was notified of his felony conviction, and an officer of District Council had warned him to refrain from further illegal activity. Red Frazier testified that Hugo Shady, as Business Manager of the District Council, contacted Red Frazier and told him he had ''three years to improve himself.'' No further action was taken by the District Council. Red Frazier continued to hold office as Business Manager and was reelected in 1991. Tr. 161-162.

Conclusions

1. Title 29 U.S.C. Section 504, is part of the LMRDA and states in pertinent part:

No person who...has been convicted of, or served any part of a prison term resulting from his conviction of robbery, bribery, extortion, embezzlement, grand larceny, burglary, arson, violation of narcotics laws, murder, rape, assault with intent to kill, assault which inflicts grievous bodily injury, or a violation of subchapter III of IV of this chapter or conspiracy to commit any such crimes, shall be permitted to serve—

…

(2) as an officer...of any labor organization

…

during or for the period of thirteen years after such conviction or after the end of such imprisonment,

…

2. Section 504 was enacted to Acleanse” unions of persons who had committed serious crimes. Specifically, the United States Court of Appeals for the Third Circuit observed:

We believe that Congress intended the provisions of Section 504(a) to have an antiseptic and purifying effect on the conduct of union affairs by union officials and officers and made clear that an individual with a criminal record should not be employed in a position of union responsibility and until he had reestablished his probity by a five year [now thirteen year] penitential period.

Lippi v. Thomas, 298 F. Supp. 242, 247 (M.D.Pa. 1969) (quoting Serio v. Liss, 300 F. 2d 386 (3d Cir. 1961)).

3. Based on this policy consideration, Courts have unanimously interpreted § 504 broadly to cover crimes not specifically included within the four corners of § 504. The district court, in Illario v. Frawley, said:

Recognizing that a narrow reading of § 504(a) would seriously impair the efficacy of the Act, the courts have uniformly held § 504(a) to be a remedial statute which should be liberally construed. When confronted with issues requiring the interpretation of the language, the courts have refused to put form ahead of substance.

426 F. Supp. 1132, 1137 (D.NJ 1977) (quoting Hodgon v. Chain Service Restaurant, L & S. F. Employ I, Local 11, 355 F. Supp. 180, 183 (S.D.N.Y. 1973)).

4. In Illario, the court upheld the disqualification of a union official for a conviction of obtaining money by false pretenses. Although the crime was not specifically enumerated in § 504, the court stated:

The case law does not restrict the ambit of § 504 to the four corners of the list of generic crimes specified by Congress. The obvious impossibility of drafting federal legislation which makes specific, as opposed to generic, references to state-proscribed criminal activity compels such a reading of the Act. The courts have unanimously held that § 504 must be given broad application in light of the Congressional intent to purge the labor movement of its criminal element[.]

426 F. Supp. 1132, 1137.

5. The criminal conviction need not be related to union activity for § 504 to apply. Lippi, supra and Illario, supra, Petition of Belpedio, 753 F. Supp. 239, 240 (N.D.Ill. 1990)

6. Courts have applied the term, Agrand larceny,@ as used in § 504, to offenses which would not be, in strict application, larceny at common law. In Lippi, the court upheld the disqualification of a union official for a conviction based on criminal activity unrelated to the union stating that, Athe term 'larceny' as used in § 504 (a) includes within its meaning a conviction for misapplication of banks funds.@ Lippi, supra at 247. In Berman v. Local 107 International Brotherhood of Teamsters, 237 F. Supp. 767, 772 (E.D.Pa. 1964) the court held that the Commonwealth crime conspiracy to cheat and defraud was, for purposes of § 504, the equivalent of ''grand larceny.''

7. I conclude that the term larceny, as used in § 504, includes a conviction for mail fraud. See Lippi, supra. The fact that he was convicted of conspiracy does not affect this conclusion. See 29 U.S.C. § 504.

8. The United States Department of Justice has taken the position that a mail fraud conviction is included in the convictions listed in § 504. See McMahan v. International Association of Iron Workers, 964 F.2d, 1462, 1463 (4th Cir. 1992).

9. Red Frazier's position is not changed by the District Council's uninformed opinion permitting him to continue to serve as an officer. The statute is applicable and, if Red Frazier is permitted to serve, Red Frazier and those who permit him to do so would be in violation of the criminal prohibitions of the statute. Specifically, § 504(b) states: ''Any person who willfully violates this section shall be fined not more than $10,000 or imprisoned for not more than five years, or both.''

10. Section 504 contains provisions for obtaining partial relief of the prohibitions of the statute. The individual affected by Section 504 has the burden of obtaining any possible relief, and the petition should be addressed to the sentencing court. Red Frazier is advised to seek legal counsel on this matter.

11. The allegations that Red Frazier used unfair election tactics during the campaign are moot, in view of my decision in this matter; however, one such tactic requires comment.

12. According to the LIUNA IG, on the night before the election Red Frazier contacted a county probation officer, Richard Perdun (''Perdun''), and requested that Perdun make several telephone calls to Local 646 members on his behalf. Perdun is not a member of Local 646. Perdun telephoned several Local 646 members and asked them to vote for Red Frazier. One individual contacted was one of Perdun's probationers, Alvie Tucker (''Tucker''). Further, the Protestors testified that Perdun telephoned Tucker and asked him to vote for Frazier. Tr. 42-45. Red Frazier admitted the foregoing facts. Tr. 162-165.

13. Perdun's assistance to Red Frazier in his campaign is an activity that is fraught with danger. It brings into play the insidious practice of using outsiders, who are not union members and have no stake in LIUNA goals or benefits, in a union election. The outsiders pay no dues and do not vote.

14. I note that Perdun is a public employee who used his official position in at least one instance to further Red Frazier's purposes. I cannot imagine that such activity accords with the lawful responsibilities of a probation officer.

15. I am requesting that the LIUNA IG send the relevant portions of this order pertaining to Perdun to the Honorable Thomas G. Russell, Circuit Judge, 7th Judicial Circuit, Jacksonville, IL.

Decision

The Election Protest regarding Red Frazier is GRANTED. Red Frazier is barred from running in the forthcoming election for Local 646 and any union election pursuant to the restrictions of 29 U.S.C. § 504, unless he is able to obtain appropriate relief pursuant to the statute.

PETER F. VAIRA

INDEPENDENT HEARING OFFICER

^[1]The nomination protest regarding Lacy technically is time-barred. Nomination protests must be filed before an election occurs. LIUNA Uniform Local Union Constitution, Article XII, Section 8. Because the Election must be rerun, and because the question of dual officer positions is important to LIUNA administration, I exercise my discretion to render an advisory opinion.

^[2]The nomination protest regarding William Frazier is technically time-barred. See Footnote 1, supra. Because the Election is to be rerun, I exercise my discretion to render any advisory opinion.

Docket No. 95-19P

Order and Memorandum

Ballot Secrecy

The Judges of Election

Findings of Fact

Donna Lacy

William Frazier

Red Frazier