In the Matter of Local 1089

Laborers’ International Union of North America

Independent Hearing Officer

Docket No. 97-12P

Decided March 13, 1998

Order and Memorandum*

This Order and Memorandum addresses the protests filed by Joseph R. Portiss ("Portiss") and William S. Nixon ("Nixon") of the rulings of the Judges of Election (“Judges”) of Local Union 1089, Sarnia, Ontario, Canada ("Local 1089") disqualifying Portiss and Nixon from running for the respective positions of Business Manager/Secretary-Treasurer and President in the Local 1089 election held on June 6, 1997 ("Election").

Nixon further protests the qualifications of the Judges for their offices.

Nixon also protests the qualifications of the following Local 1089 officers for nomination for their respective offices: Robert Leone (Business Manager and Secretary-Treasurer) ("Leone"), Riccardo Vani (President) ("Vani"), Gerald Varricchio (Vice President) ("Varricchio"), Frank Guerette (Recording Secretary) ("Guerette"), and Frank Vennari and Mario Iafrate (Executive Board Members) ("Vennari" and "Iafrate").

Leone, Guerette, and Varricchio were elected, and Vani, Vennari, and Iafrate were unopposed and elected by acclamation.

Nixon also protests the actions of Leone in sending to the Local 1089 membership a letter dated May 30, 1997, which conveyed information of an Ontario Labor Relations Board ("OLRB") decision dated May 8, 1997, rendered in favor of Local 1089 and which further reported on the status of another Local 1089 matter before the OLRB ("May 30 letter").

Portiss and Nixon also protest the application of Paragraph 1(g) of the Local 1089 Bylaws which states that a member will be responsible for costs incurred by Local 1089 in defending an appeal from a decision of a trial board or a protest of a decision of the Judges if the decision appealed is not overturned ("By-law").

Based upon the testimony presented in interviews of the protestors, pertinent documentary evidence, and further investigation by the IHO, the protests of Portiss and Nixon are DENIED, except that their protest of Paragraph 1(g) of the Local 1089 By-laws, is granted, and that provision is declared invalid and unenforceable.

Findings of Fact

1.        The nomination meeting for election of officers of Local 1089 was held on May 9, 1997 ("Nomination Meeting").

2.        Portiss, a member of Local 1089, sought nomination for Business Manager/Secretary-Treasurer.

3.        Nixon, a Local 1089 member in good standing, was nominated for President.

4.         On May 12, 1997, the Judges examined all nominated candidates.

5.        Portiss was found by Local 1089 to be unqualified for nomination as a candidate because he was in suspended membership status for non-payment of dues and not, therefore, a member in good standing for the entire two year period prior to the nomination meeting.

6.        Portiss tendered his February 1997 dues by money order which he personally delivered to a Local 1089 employee on April 1, 1997, before the 8:00 a.m. opening of the Local 1089 office.  On April 4, 1997, Portiss was notified that his dues payment was late and that he had been suspended from membership.  In order to become current, a suspended member is required to pay outstanding dues as well as a readmission fee.  Portiss paid neither outstanding dues nor a readmission fee and, therefore, remained in suspended status at the time of the nomination meeting.

7.        Nixon was disqualified as a candidate by the Judges on May 12, 1997, based on the determination that he had not been a member in good standing for the entire two year period prior to the nomination meeting because he had not been current in payment of his dues during that two year period.

8.        Nixon failed to make timely payment of monthly dues on November 30, 1995, and was suspended. In December 1995, Nixon paid the outstanding dues and a readmission fee, and was readmitted to good standing in Local 1089.

9.        The election was held on June 6, 1997.

10.     Nixon asserts that he was qualified to run in the election because he had paid all outstanding dues for the two year period prior to the nomination meeting, notwithstanding his failure to make timely payment of dues in November 1995.

11.     Portiss asserts that the custom of Local 1089 is to allow late payment of monthly dues without fine or suspension if paid by money order or cashier's check dated the last day of the following month, notwithstanding receipt of such payment by Local 1089 beyond the close of office hours on the last day of that following month.

12.     There is an exception which has been accepted by the International Union; however it applies only to dues which are mailed. If dues are paid by mail and the letter is postmarked on or before the last day that the dues may be paid, the payment will be regarded as a timely payment even though the dues are received after the cut off date. The exception was created for those persons who live long distances from the union hall or are working and must make their payments by mail. There is no corresponding exception for a late personal delivery.

13.     Nixon asserts that one of the Judges, Clemente Cicchini ("Cicchini"), was a member of the Local 1089 Executive Board at the time of the nomination meeting until submitting his resignation from the Executive Board on May 21, 1997. He contends that Cicchini was not qualified to be a Judge of Election because he did not resign his post as a Local 1089 Executive Board member until May 21, 1997, after the nomination meeting.

14.     In LIUNA, a member of a local union may sit as a Judge of Election, if appointed before the nomination meeting and if possessed of the qualifications required of candidates for office, except that he/she may be retired, and must not be a candidate in that election.

15.     There is no evidence to establish that Cicchini, when appointed as a Judge of Election, failed to possess the qualifications of a candidate for office.

16.     Nixon asserts that the two other Judges, Tony Spano ("Spano") and Onorio Maolo ("Maolo"), should have been disqualified as Judges as biased because each was related to an officer of Local 1089 who was a candidate for re-election. Spano was an uncle of Leone, who was a candidate for re-election for Business-Manager/Secretary Treasurer. Maolo was a relative by marriage of Vani, who was a candidate for re-election as Vice President.

17.     There is no evidence to establish bias on the part of Spano or Maolo in the performance of their duties as Judges of Election.  Portiss, as a suspended member, was not entitled to nominate or be nominated as a candidate at the nomination meeting.  That he was barred from attending the nomination meeting because of his suspension was consistent with Local 1089 and LIUNA practice and not an issue before the Judges.  The nomination disqualifications of both Nixon and Portiss were on very straightforward grounds consistent with established LIUNA policy on payment of dues.  Additionally, there is no evidence of any favoritism shown by Spano or Maolo to either Leone or Vani in the nomination process.

18.     Nixon asserts that Leone, Vani, Varricchio, Guerette, Vennari, and Iafrate were unqualified for nomination to their respective offices, but gives no constitutional reasons therefore.

19.     There is no evidence to establish that Leone, Vani, Varricchio, Guerette, Vennari, and Iafrate were constitutionally unqualified for nomination to their respective offices.

20.     Nixon asserts that Leone used union funds to send the Local 1089 membership the May 30 letter, which Nixon characterizes as campaign literature rather than a general union newsletter.

21.     The May 30 letter contains a report of an OLRB decision dated May 8, 1997, in favor of Local 1089 in a jurisdictional dispute with Doug Chalmers Construction Ltd. and Carpenters Local 1256. The May 30 letter further reported on the status of another Local 1089 matter pending before the OLRB. It contains no reference whatsoever to the pending Local 1089 election and contains no solicitation for support of the officers in the electoral campaign. It was timely in relation to its subject matter. The subject matter was of importance to the membership of Local 1089 in that the OLRB expanded the jurisdictional job base of the membership.

22.     There is no evidence to establish that the May 30 Letter was a subterfuge or a vehicle for union funded campaign activity.

23.     Portiss and Nixon argue that Paragraph 1 (g) of the Local 1089 By-laws improperly renders a local union member responsible for costs incurred by Local 1089 in defending an appeal from a decision of a trial board or a protest of a decision of the Judges if the decision appealed or protested is not overturned. That By-law is currently in force and applicable to appeals and protests of Local 1089 members, and would apply to both Nixon and Portiss.

Conclusions

1.        Article V, Section I of the LIUNA Uniform Local Union Constitution ("Constitution") provides in pertinent part that in order to qualify as a candidate for any office in a local union, a member must “. . . have been in good standing in the International Union for a period of two years and in good standing in the Local Union for a period of two years immediately prior to nomination and . . . be current in the payment of his dues . . . .”

2.        It is well established LIUNA policy that a local union should treat dues paid after the close of business on the last day of the second month after the due date of the dues as untimely and that any efforts which a member may have made to deliver dues after the office closed on the last day of the second month are irrelevant. See Appeal of J. Willis, GEB Hearing Panel, (February 4, 1994); Letter from A. A. Coia to J. Willis (October 13, 1993).

3.        The mail-in exception discussed in Finding 12, above, is not applicable to in person payments.

4.        Nixon failed to make timely payment of his dues by November 30, 1995, and was suspended, but became reinstated thereafter and was current in payment of dues at the time of the nomination meeting. By contrast, Portiss failed to make timely payment of monthly dues on March 31, 1997, was suspended and remained suspended and not current in payment of dues at the time of the nomination meeting. There was no Local 1089 custom or practice in effect that excused his late payment. In either instance, Article V, Section 1 of the Constitution requires that, in order for a member of a local union to qualify as a candidate for office in that local union, he must be current in payment of dues at all times for a period of two years immediately prior to nomination. See, e.g., In the Matter of Local 1278 (Brown), IHO Order and Memorandum, 97-29P(1) (October 2, 1997); In the Matter of Local 495, IHO Order and Memorandum, 96-57P (November 18, 1996).

5.        Nixon and Portiss were not in good standing for the two years prior to the nomination.

6.        Article VI, Section 1 (c) of the Constitution provides in pertinent part that Judges “shall not be candidates for office but they shall possess all the qualifications required of candidates for office except that they may be retired[.]" Although Cicchini may have served as an Executive Board Member from the time of his appointment as a Judge until possibly May 21, 1997, he was not a candidate for re-election to the Executive Board. Nixon has failed to establish that Cicchini was otherwise unqualified.

7.        Cicchini was properly qualified to serve as a Judge.

8.        Nixon has failed to establish by a preponderance of the evidence that Spano and Maolo were biased in the performance of their duties as Judges by virtue of their familial relationships to other officers of Local 1089 or that they were otherwise unqualified. Article VI, Section l(c) of the Constitution does not preclude service by relatives of local union officers as Judges.  Nixon has shown no evidence of bias on the part of Spano and Maolo in the performance of their duties.

9.        Spano and Maolo were properly qualified to serve as Judges of Election.

10.     Nixon has failed to establish by a preponderance of the evidence that Leone, Vani, Varricchio, Guerette, Vennari, and Iafrate were unqualified for nomination to their respective offices within Local 1089.

11.     Leone, Vani, Varricchio, Guerette, Vannari, and Iafrate were properly qualified for their respective offices.

12.     The May 30 letter does not constitute campaign literature. It was issued shortly following receipt of the May 8, 1997 OLRB decision and merely reported on that decision, with its positive implications for Local 1089 job prospects, and on the pendency of another matter before the OLRB of similar importance to Local 1089. While the timing of the issuance of this letter might lead some, as Nixon, to question the motivation of the author, Leone, vis-a-vis the pending election, the absence of any campaign references or self-congratulatory entries, and the significance of the development to the jurisdictional job base of the membership outweigh the fact of its issuance one week prior to the election.

13.     The May 30 Letter does not constitute prohibited campaign literature.

14.     Paragraph 1 (g) of the Local 1089 By-laws improperly renders a local union member liable for costs incurred by Local 1089 in defending an appeal from a decision of a trial board or a protest of a decision of the Judges of Election if the decision appealed is not overturned. It flies in the face of the Ethical Practices Code and could lead to abuses. Paragraph 1 (g) is an unreasonable burden on persons seeking to file election protests or trial board charges and places a penalty on the filing of protests or charges which far outweighs any value it may have for conserving union funds.

Decision

The protests of Portiss and Nixon are DENIED, except that their protest as to Paragraph 1 (g) of the Local 1089 By-laws is GRANTED.  Paragraph 1 (g) is declared invalid and unenforceable.

The Executive Board is directed to notify all members of Local 1089 in its next mailing to all members that Paragraph 1 (g) of the by-laws is invalid and will not be enforced. A copy of the notification shall be sent to the IHO upon its mailing.

PETER F. VAIRA

INDEPENDENT HEARING OFFICER