In the Matter of LIUNA Local 703

4. The May 23 Letter was postmarked in Champaign, Illinois on May 23, 1996, and each envelope bore the return address of 108 E. Anthony Drive, Urbana, Illinois 61801, the common address of both the District Council and Local Union 703. The District Council and Local Union 703 shared facilities and support staff personnel at that location.

5. Gene Johnson served as the Business Manager of Local Union 703 until November, 1995, when he resigned from that position. Upon his resignation, he was succeeded as Business Manager by his son, Jamie W. Johnson, who was appointed by the Executive Board to serve as interim Business Manager until the next election.

6. Shortly after his retirement, Gene Johnson was retained as a full-time consultant by Local Union 703 at an annual fee equal to his prior salary as Business Manager, along with an expense account and other benefits. Local Union 703 also agreed to pay his FICA taxes. Neither his duties nor the hours he was required to work were defined under his consulting agreement.

7. On May 23, 1996, Gene Johnson served as a consultant to Local Union 703 and Business Manager of the District Council.

8. The May 23 Letter was an open call for the election of Jamie W. Johnson as Business Manager of Local Union 703. It contained harshly critical references to Perring and Roe and to the other candidates who ran on their slate for election to offices of Local Union 703.

9. The May 23 Letter indicates that it was typed by "aid", the initials of Angela Dial, the granddaughter of Gene Johnson, who was a secretary of Local Union 703 and an employee of the Local Union 703 Welfare Fund.

10. In an interview with an attorney from the IHO's office on September 23, 1996, Gene Johnson admitted that he caused the May 23 Letter to be prepared using Local Union 703 or District Council facilities, employees and property. He refused to answer any further questions and referred the interviewer to Bruce S. Feldacker, Esq. ("Feldacker"), who he described as his lawyer. When contacted, Feldacker stated that he did not represent Gene Johnson but only Local Union 703.

11. Jamie W. Johnson and Feldacker contacted the IHO's office on September 30, 1996. During a telephone interview with the IHO's representative, Johnson and Feldacker, in his capacity as counsel for Local Union 703, asserted that the May 23 Letter was typed off-premises by Angela Dial on her own time. Considering the facts, I credit the statement of Gene Johnson that the May 23 Letter was prepared and copied on union premises after hours using union equipment. However, even if the May 23 Letter were prepared off premises, the use of a union employee with practical knowledge of Local Union 703 to prepare the letter was an advantage not available to Perring or Roe.

12. Gene Johnson contends that he paid for the May 23 Letter with his own funds. Under the facts presented here, with Gene Johnson receiving a generous consultant's salary from Local Union 703, for unspecified duties, the May 23 Letter was in reality paid for with union funds, with Gene Johnson as a thinly disguised conduit.

13. On January 16, 1996, and February 5, 1996, Perring mailed certified letters to Local Union 703 requesting mailing addresses of the membership of Local Union 703, for the stated purpose of sending to the membership literature concerning his candidacy for the Business Manager position in the pending Local Union 703 election on May 29, 1996.

14. By letter dated February 8, 1996, Jimmy Felkner, Jr., Secretary - Treasurer of Local Union 703, advised Perring that Local Union 703 could not provide him with names, addresses and telephone numbers of the membership. Perring was advised instead either to obtain the names and addresses of every member from the referral board for his own mailing or to supply his letters, envelopes and postage to Local Union 703 which would then label and mail them from its offices.

15. On May 6, 1996, Perring contacted Jamie W. Johnson about how to obtain the mailing list for Local Union 703's members. Perring received no reply.

16. By letter to Felkner dated May 17, 1996, Perring gave formal notice to Local Union 703 of his intention to mail campaign literature for the pending May 29 election. He stated his willingness to provide copies of his literature in envelopes with postage prepaid and to pay "any reasonable costs to the union for the time required to produce the mailing labels and affix to the envelopes."

17. By letter dated May 17, 1996, Jamie W. Johnson advised Perring that, in response to Perring's letter to Felkner, Johnson had written to Michael Bearse ("Bearse"), LIUNA's General Counsel, for "an interpretation and advice on how to handle the matter of mailing."

18. The procedure for mailing a candidate's literature appears in the Labor-Management Reporting and Disclosure Act of 1959, 29 U.S.C. § 401 et seq. ("LMRDA"). It has long been the practice in LIUNA and other unions for the local union to provide address labels and thereafter, mail the campaign literature of a candidate at a reasonable cost. This is not a new concept.

19. By letter dated May 17, 1996, Jamie W. Johnson advised Bearse that he thought it improper to provide Perring with a copy of the Local Union 703 mailing list, but that he would allow two of his secretaries to do the mailing "at the cost of the candidate which would include wages, benefits, postage, and labeling." However, Johnson added that such a mailing would interrupt the daily work of the office and interfere with Local Union 703's "never ending routine of doing Health & Welfare, Dental and the regular duties." I find that this tactic was a deliberate attempt to obstruct Perring's mailing.

20. Perring protested to the IHO in a letter dated May 21, 1996. He asserted that the officers of Local Union 703 had refused to cooperate with his mailing request and that no officer ever was available at the union hall to give him a time when the mailing could take place.

21. By letter dated May 22, 1996, Bearse responded to Jamie W. Johnson's May 17 letter and advised that a candidate had the right to inspect but not copy a membership list once within thirty days of an election. He further advised that federal law compelled a local union "to comply with reasonable requests of any candidate to distribute their campaign materials."

22. On May 21, 1996, the IG informed Jamie W. Johnson that Local Union 703 had quoted an excessively high price for the mailing sought by Perring and directed that Local Union 703 advise its members that LIUNA International Union would make mailing labels for campaign literature available for a nominal price. He also expressed concern that the high prices quoted "might discourage mailings and full election participation" and violate the LIUNA Ethical Practices Code.

23. Feldacker, as counsel for Local Union 703, informed the IHO that on May 22, 1996, the day before the May 23 Letter was mailed, at a special Local Union 703 Executive Board meeting, the Local adopted a policy under which a member could make a membership mailing by paying the Local for it. Feldacker further stated that Gene Johnson reimbursed Local Union 703 $414 for all expenses for preparation and mailing of the May 23 Letter.

24. In marked contrast to the $414 paid by Gene Johnson, the office of Local Union 703, on or about May 20, 1996, quoted to Perring the figure of $1100 for a campaign mailing of similar size.

25. At no time did Local Union 703 inform Perring of the campaign mailing arrangements and accommodations made available to Gene Johnson relating to the May 23 Letter.

26. Perring and Roe also assert the existence of a pattern of harassment, intimidation and physical threats by members of Local Union 703 toward the candidates who opposed the Gene Johnson-endorsed candidates for the May 29 election.

27. At the February 13, 1996 membership meeting of Local Union 703, Perring sat at a table with two of his supporters for the upcoming election. Steven Tatman and Jerry Dale Tatman, supporters of the Jamie W. Johnson slate who often acted as agents on behalf of the union leadership in dealing with other union members, purposely sat on high stools immediately behind Perring in an effort perceived by Perring as intimidation.

28. Later in February, 1996, two Perring supporters were each approached by Jerry Dale Tatman and threatened with physical violence and loss of work if they supported Perring in his election efforts.

29. At the Local Union 703 membership meeting on March 12, 1996, Percy Gordon, another Local Union 703 member, sat with Steven Tatman at a table behind Perring, Perring-aligned candidates and supporters. Either Tatman or Gordon stated in a menacing fashion: "I guess they are not going to conform, so we will probably have to shoot them."

30. On March 4, 1996, Perring received a telephone call at his home from Jerry Dale Tatman which Perring construed as clear intimidation. There was no business, social or special reason for Tatman to call Perring.

Discussion

The provisions of Section 481(g) of the Labor - Management Reporting and Disclosure Act of 1959 (" LMRDA"), 29 U.S.C. § 481(g), specifically prohibit the use of any monies received by a labor union by way of dues or other assessment " . . . to promote the candidacy of any person in an election subject to the provisions of this subchapter." For example, it is well established that a letter written by an officer of one union on union stationery, paid for by union funds, criticizing a candidate for office of another union is a violation of the statute and may be sufficient grounds to justify a new election. Reich v. Local 843, International Brotherhood of Teamsters, 869 F. Supp. 1142 ( D.N.J. 1994 ); Dole v. Drywall Tapers and Finishers Local 1976, 733 F. Supp. 864 ( D.N.J. 1990 ).

It is not necessary that the union holding the challenged election actually have expended union funds in violation of Section 481(g) in order for a new election to be ordered, the use of its facilities, even reimbursed by another union or individual, is sufficient to constitute such a violation and to justify a new election. See Reich, supra, 869 F. Supp. at 1152; Brock v. Connecticut Union of Telephone Workers 703 F. Supp. 202, 209 (D. Conn. 1988).

Union funds were used to pay for the May 23 Letter. The fact that Gene Johnson paid for the mailing, allegedly out of his own funds, does not make this a proper mailing. The consultancy agreement is but a vehicle by which Local Union 703 could conceal use of its funds to place Gene Johnson in a position to campaign for Jamie W. Johnson. Local Union 703 paid Gene Johnson for his "services" and, in effect, was reimbursed for the May 23 Letter with its own money.

The LIUNA Ethical Practices Code ("EPC") was adopted in 1995 to ensure that democratic procedures would be followed in all union activities. A union bill of rights, it guarantees that members will be treated in a democratic manner and that union activities are run in a uniform and fair manner. The EPC fills in those gaps in election procedure not specifically covered by the LMRDA.

Here, the activities of Local Union 703 in permitting Gene Johnson to mail out the May 23 Letter and the concerted activity to deny Perring and Roe equal opportunity to campaign violated the EPC.

As an additional matter of established law, Local Union 703 discriminated against Perring, in violation of the provisions of Section 481 (c) of the LMRDA, 29 U.S.C. § 481 (c), by failing to offer an opportunity for a campaign mailing equal to that provided to the incumbent slate of candidates.

Section 481(c) provides that unions must comply with all reasonable requests to distribute campaign literature to all members in good standing, refrain from discrimination in favor of, or against, any candidate in the mailing of such literature, and treat all candidates equally as to the expense of distribution of such mailing. This statute has been held to justify setting aside an election where a candidate was mistakenly overcharged for a mailing, even where the overcharge was later refunded, on the premise that unequal treatment to one candidate may have affected the outcome of the election. United States Department of Labor v. Local 783, International Brotherhood of Teamsters, 111 BNA LRRM 2979 (W. D. Ky. 1982). Section 481(c) also was held to be violated when a local union allowed one slate of candidates to obtain a set of address labels from an international union for use on their campaign literature and then failed to advise the opposing slate of either the other slate's use of the labels or the availability of the labels. Donovan v. Local Union 3106, Communication Workers of America, 113 BNA LRRM 2059 ( M.D. Fla. 1983).

Section 452.67 of the Code of Federal Regulations, 29 C.F.R. § 452.67 (1996), provides, in pertinent part, with regard to distribution of campaign literature that:

. . . In order to avoid charges of disparity of treatment among candidates, it is advised that a union inform all candidates in advance of the conditions under which distribution will be made and promptly advise them of any change in those conditions.

Therefre, the law clearly, mandates equality of access and opportunity to use union facilities to candidates for campaign mailing purposes and requires local unions to preserve that equality through prompt advice of any changes in the conditions affecting such mailings. In this instance, Local Union 703 failed to provide equality of access or opportunity to union personnel and union facilities to Perring and failed in its obligation to advise Perring of the mailing concessions given to Gene Johnson. It failed to advise him of the markedly lower cost of a mailing given surreptitiously to Gene Johnson. This conduct violated Section 481(c).

Upon making a reasonable request, each candidate is entitled to have his or her campaign literature distributed to the members by the union at the candidate's expense. 29 U.S.C. § 481 (c). This has long been the law. The procedure for doing so is well established by the Department of Labor. See Conducting Local Union Election Officer Elections published by the Office of Labor Management Standards, Department of Labor.

The excuse given by Jamie W. Johnson that Perring's request would interrupt the daily work of the office and that he would be required to pay the wages and benefits of the office workers was contrived.

It is well established that:

A Union may not refuse to distribute literature because it has no staff or small staff. If necessary, a Union should employ additional temporary staff, use a professional mailer, or have the Section officials make this distribution in order to comply with any requests. Conducting Local Union Officer Elections, at Chap. 6, p.21.

If Jamie W. Johnson had any doubts as to the procedure available to him, he could have consulted Local Union 703's experienced paid consultant, the former Business Manager, Gene Johnson. He could have consulted the outside counsel to Local Union 703.

The foregoing circumstances indicate that Jamie W. Johnson's stated inability to decide how to distribute Perring's literature was feigned.

Jamie W. Johnson's delay in distributing Perring's campaign literature was deliberate.

Conclusions

1. The May 23 Letter violated 29 U.S.C. § 481(g), which prohibits the use of union funds for campaign activity.

2. Under the circumstances, the May 23 Letter violated the EPC.

3. The officers Local Union 703 deliberately set upon a pattern to delay and obstruct Perring's mailings.

4. Local Union 703 defaulted on its affirmative obligation to inform Perring promptly of the campaign mailing arrangements and use of union personnel and equipment made available to Gene Johnson for the May 23 Letter and to afford an equal opportunity to Perring, all in violation of 29 U.S.C. § 481 (c).

5. The combination of the acts described above and the conduct of harassment of Perring affected a free and fair election. The May 29 election was fundamentally tainted.

6. The conduct of the officers of Local Union 703 indicates a conscious and deliberate effort, sustained over a period of at least six months, to prevent free and democratic process to operate. The paid consultancy for Gene Johnson described above is a throwback to discredited union practices prevalent in the 1950's and 1960's which inspired passage of the LMRDA. The EPC was designed to prevent a reoccurrence of these activities. The conduct here is a strong indication that democratic process in Local Union 703 has broken down.

Decision

The protest of Perring and Roe is GRANTED.

It is ORDERED that a new election for all elective offices of Local Union 703 be held in a timely manner to permit a reasonable opportunity for candidates to campaign. The new election includes the reopening of the nomination process to all qualified members of Local Union 703.

The voting members of Local Union 703 and prospective candidates should be aware that the EPC guarantees a free election in the highest tradition of the democratic process.

The LIUNA Inspector General is requested to assign staff members to monitor the election or to arrange for an election monitor from another LIUNA district or from outside LIUNA. The monitor should be skilled in election procedures and should be authorized to investigate allegations of election violations and take remedial action immediately, including filing disciplinary charges.

This Order and Memorandum shall be mailed to all members of Local Union 703 with notice of the nomination and election in accordance with the LIUNA Uniform Local Constitution.

PETER F. VAIRA

INDEPENDENT HEARING OFFICER

Order and Memorandum

Findings of Fact