In the Matter of Local 527

 

Laborers’ International Union of North America

Independent Hearing Officer

 

Docket No. 97-28P

 

Decided April 27, 1998

Revised Order and Memorandum*

[This Order and Memorandum corrects the spelling of Gerrard Mullen, in the Order and Memorandum of April 24, 1998 and should be substituted therefore]

This Order and Memorandum addresses the election protests of Albano Couto (“Couto”), Mario Fournier^[1] (“Fournier”), Mario Fracassi (“Fracassi”), Geraldo Moniz (“Aoniz”), Gerrard Mullen (“Mullen”), Nick Prince (“Prince”), Massimo Rossi (“Rossi”), and Pasqualino Strizzi (“Strizzi”) alleging irregularities in the election of officers of Laborers’ International Union of North America (“LIUNA”) Local Union 527 in Ottawa, Ontario in June 1997.   All of the protests challenge the qualification or disqualification of certain nominators or nominees for office.

On the basis of investigations conducted by the Independent Hearing Officer (“IHO”) and the Inspector General (“IG”) and records supplied to the IHO by Local 527, the protests of Couto, Moniz, and Rossi are GRANTED.

The protests of Fournier, Fracassi, and Prince are GRANTED in part and DENIED in part.  The protests of Mullen and Strizzi are DENIED.

A new election is ORDERED for the following offices: Vice President, Auditor, Executive Board Member, and Delegate to the Ontario Provincial District Council (“District Council”).  The rerun election will include the nomination process.

New Judges of Election from another local union will be chosen by the Regional Manager to preside over the rerun election.  A Canadian attorney with no affiliation to Local 527 will be designated as an Election Officer to oversee the rerun election.

Findings of Fact

1.        Local 527 held a nomination meeting for the election of officers on May 1, 1997.

2.        On May 10, 1997, nominees appeared before the Judges of Election (“Judges”) for an evaluation of their qualifications for office.

3.        Protests were lodged against several nominees as being unqualified to hold office.

4.        On May 14, 1997, in response to a request for advice from Chief Judge of Election, Andre Roy, the attorney for Local 527, Daniel P. Randazzo, gave a written opinion regarding “a member in good standing.”  He stated that “a member is not in good standing unless and until he has paid his initiation fee and is current in the payment of dues . . . . A waiver [of the fee] is only effective if it has been done properly (i.e. constitutionally).”

5.        Randazzo also addressed the qualifications of nominators, concluding that, to be a qualified nominator, a member “must have the full or proper initiation fee paid.”

6.        On May 20, 1997, Roy sought additional guidance from LIUNA Regional Manager Joseph Mancinelli in dealing with the challenges.  See Letter from Roy to Mancinelli  (May 20, 1997).  In his letter to Mancinelli, Roy attached summaries of when and how the challenged nominees became members of the union.  Roy also attached partial dues histories reflecting only payments through 1992. 

7.        On May 20, 1997, Mancinelli responded via facsimile, attaching a letter from LIUNA General President Arthur A. Coia that advised in part:

The general rule is that only when the initiation fee has been completely paid and the Local Union has accepted such person into membership by turning over the union membership card to the individual is that person a member in good standing of the Local Union as well as the International Union and therefore eligible to vote.

8.        The letter from General President Coia also advised that a member who takes a job as a supervisor can retain his membership in LIUNA but is not “working at the calling” and, therefore, cannot vote or run for office.

9.        The request from Mancinelli to General President Coia is not part of this record, but it is apparent from the Mr. Coia’s response that Mr. Coia was not made aware of the specific facts giving rise to the protests.  Mr. Coia’s response appears to be a form letter and does not address the specific factual issues in question.  As such, it is not determinative of the facts in these protests. 

10.     On May 21, 1997, the Judges of Election issued a report disqualifying several nominees for office, all of them opposing candidates of a slate headed by Business Manager Berardino Carrozzi (“Carrozzi”).

11.     Fournier, Moniz, Fracassi, Strizzi, and Prince were disqualified from running for office; Rossi was disqualified from acting as a nominator.  All filed timely protests. 

12.     Fournier protested the qualification of Carlo Trunzo, a candidate for District Council on the Carrozzi slate.

13.     Fracassi and Prince protested Andre Roy, then-President, acting as a Judge of Election. 

14.     Mullen protested the reopening of nominations for the office of Delegate to the District Council after some, but not all, nominees for that office had been disqualified.  He also protested allowing Strizzi to be renominated for President after being disqualified because his nominator was found unqualified.

Vice President

15.     The Judges found Prince unqualified to run for Vice President for failure to pay the full initiation fee in 1991.   See Judges of Election Report (May 21, 1997).

16.     Local 527 records show that Prince paid $25 of the $250 initiation fee when he joined the union in 1991.  He became a full member and was thereafter listed in good standing.  He was never suspended by the local union for failure to pay the full amount.  Records also show that Prince has paid dues since he joined the union, and has not been in arrears in violation of the Uniform Local Union Constitution (“Constitution”) during the two years preceding his nomination.  Since Prince joined the union in 1991, Local 527 has afforded him all of the benefits of union membership.

17.     Prince told IG investigators that he was offered membership at a reduced fee as part of a recruitment effort by Local 527.  The Judges and Carrozzi denied that Local 527 waived part of the initiation fee as an inducement for joining. 

18.     The remaining candidate for Vice President, Adrien Fortier, was elected by acclamation, as there was no opposing candidate.

Auditor

19.     The Judges found Fracassi to be unqualified to run for Auditor for failure to pay the full initiation fee.  See Judges of Election Report.

20.     Local 527 records show that Fracassi paid $25 of the $250 initiation fee when he joined the union in 1992.  Records also show that Fracassi was suspended in December 1993 for failure to make timely dues payments and was properly readmitted in 1994.  His dues have been current since that time.  Since Fracassi joined the union in 1992, Local 527 has afforded him all of the benefits of union membership.

Secretary-Treasurer

21.     As a result of finding Fracassi unqualified to run for office, the Judges also found him ineligible to nominate Strizzi for Secretary-Treasurer, and Strizzi was disqualified.  Because the two other candidates for that office failed to appear before the Judges, they were disqualified, leaving no candidates to run for that office.  The nominations for Secretary-Treasurer were reopened.  See Judges of Election Report. 

22.     Strizzi was renominated for Secretary-Treasurer by another member and ran against Raymond Baron.  Mullen protests the renomination of Strizzi.  Baron won the election for Secretary-Treasurer by a margin of 305 to 232.  Based upon the fact that Strizzi lost, Mullen’s protest is denied as moot.

Sergeant-At-Arms

23.     The Judges found Fournier unqualified to run for Sergeant-at-Arms “as per Article V, Section 1 of the LIUNA Uniform Local Union Constitution.”  See Judges of Election Report.  This provision requires candidates to be members in good standing for two years prior to their nomination for office.

24.     Local 527 records show that Fournier was suspended effective March 1, 1996, and readmitted on May 30, 1996.  The computer record of his dues payment shows that, for the months of December 1995 and January and February 1996, Fournier paid his dues on January 26, 1996, which was in accord with the Constitution.  The records reflect that Fournier next paid dues on May 16, 1996.  The suspension date of March 1 and payment date of May 16 permit the inference, and I so find, that Fournier was suspended effective March 1, 1996, in accordance with the Constitution, because he failed to pay his March dues by the end of April.  He was reinstated May 30, 1996, less than two years from the date of his nomination on May 1, 1997.

25.     Because Fournier was not a member in good standing continuously for the two years before his nomination, he was ineligible to run for office.

Delegate to District Council

26.     The Judges found Strizzi and Couto disqualified to run for Delegate to the District Council because their nominator, Rossi, had failed to pay the full initiation fee.  See Judges of Election Report.

27.     Local 527 records show that Rossi paid $25 of the $250 initiation fee when he joined the union in 1992.  Records also show that, in the two years before the 1997 nominations, Rossi paid his dues in full and on time.  Since Rossi joined the union in 1992, Local 527 has afforded him all of the benefits of union membership.

28.     Fournier filed his own protest challenging the qualification of Carlo Trunzo, a candidate for Delegate on the Carozzi slate.  Local 527 records show that on March 5, 1997, Trunzo paid dues for the months of January, February, and March 1997.  Under the Constitution, Trunzo should have been suspended for failure to pay his January dues by the end of February, but was not and, on May 21, 1997, was found by the Judges to be qualified to run for office. 

29.     In a telephone interview with the IHO’s office, Roy said that if a nominee should have been suspended but was not, it was not the duty of the Judges retroactively to declare the nominee not in good standing and disqualify him.   Although this decision was correct, as will be demonstrated below, the ruling is contra to the Judges' ruling on the eligibility of Prince, Fracassi, and Rossi, above, and contradictory to attorney Randazzo's advice.

30.     The Judges found Moniz unqualified for Delegate to the District Council because “he is a janitor not employed on a full-time capacity for the Local Union; Article V, Section 4, paragraph (c), employment not considered consistent with the obligation of the Local Union; on Workers’ Compensation C modified work.”  See Judges of Election Report.

31.     Moniz has been a LIUNA member since 1975.  He was auditor and shop steward from 1985-89.  In 1996, Moniz was nominated for and found qualified to run for election as a delegate to the LIUNA General Convention, while holding the same job as he did when he was nominated for Delegate to the District Council in this election.

32.     Moniz told IG inspectors that, until June 1997, he worked as a caretaker or janitor at three union properties: the local union hall, the training center, and property called the “Beechwood Property.”  Moniz said that he worked from 7:00 a.m. to 4:00 p.m. five days a week.  A copy of his schedule, provided to the IG by Moniz, reflects that he performed work at the three facilities five days a week in the morning and afternoon.

33.     I find that Moniz worked full-time at the calling, and should have been permitted to run.  The election for Delegate to the District Council will be rerun.

34.     Of all of the nominees for the three Delegate positions, only Carlo Trunzo was found eligible to run; therefore, the Judges reopened nominations, permitting Trunzo to stay on the ballot.  See Judges of Election Report.  Mullen and Real Cote were nominated, and both Strizzi and Couto were renominated.

35.     Mullen protests Strizzi and Couto being renominated based on his interpretation of Article VI, Section 2(f), Constitution.  Mullen’s interpretation of that provision is incorrect; however, no further discussion is necessary because the nomination and election for Delegate to District Council must be rerun.  Mullen’s protest is denied as moot.

Member of the Executive Board

36.     Louis DeCastro was nominated for membership on the Executive Board.

37.     The Judges disqualified DeCastro, even though he had served as a member of the Executive Board for several years, finding he was not “working at the calling” because he was a “supervisor” at his union job.  Couto filed a protest challenging DeCastro’s disqualification.

38.     DeCastro has been a LIUNA member since 1975 and was a union representative from 1989 to 1991, working at the training center. 

39.     DeCastro told IG inspectors that he became a foreman on his union job in 1994 and is considered an assistant superintendent.  He does not have authority to hire or fire personnel nor to recommend discipline.  DeCastro is not a salaried employee, but is paid by the hour.  DeCastro ordinarily is laid off from December until April and, during the lay-off, signs the out-of-work list at Local 527.  DeCastro has no role in collective bargaining on the part of his employer.

40.     DeCastro was a member of the Executive Board at the time of the 1997 election.

Judge of Election

41.     Fracassi’s and Prince’s protests challenge Roy’s eligibility to act as a Judge of Election at the same time he was the incumbent Local 527 President.  He did not run for reelection.

42.     Nothing in the Constitution prevents an incumbent officer, not running for office, from serving as a Judge of Election.

Discussion

Payment of Initiation Fees

The Constitution provides that, to be qualified for nomination for local union office, a member must have been in good standing in LIUNA and the local union continuously for two years immediately prior to the nomination and must be current in payment of his or her dues.  Constitution, Art. V, Sec. 1.  “Current in payment of dues” means that a member is not more than two months behind in the payment of his or her dues.  Constitution, Art. VI, Sec. 3(d).

To be in good standing the individual must be registered with LIUNA and must have completed the payment of all lawful and uniformly required financial obligations to the Local Union.  See Letter from General President Arthur A. Coia to Bob Hill, President, Local 270 (March 30, 1993).

When evaluating the qualifications of Prince, Fracassi, and Rossi to run for office or to nominate candidates, the Judges determined that the failure to pay the full initiation fee years earlier disqualified the individuals, even though the local union had never suspended them for the failure to pay, and they have been current in the payment of their dues for at least the two years preceding the election.

There is conflicting evidence that Local 527 waived the full initiation fee as a recruitment effort for these particular individuals.  I need not decide whether Local 527 waived the fees, however, because the union is estopped now from denying that Prince, Fracassi, and Rossi are members in good standing.  The three received union cards, paid their dues, and received all of the benefits of union membership.  The Judges had no authority to determine whether the three should have been suspended, and, therefore, their decision to disqualify the candidates was improper. 

The LIUNA Hearings Panel (the predecessor to the IHO) has previously held that, for purposes of determining whether a nominee is qualified to run for office, Judges of Election are estopped from retroactively determining that a member lacks standing because he should have been suspended within two years of the nomination.  See Charges by Ruben Torres (Local Union 300), Special Hearings Panel (Feb. 8, 1993).  The Hearings Panel in Torres found that:

 . . . . [The Constitution] requires a candidate to have been in good standing for a period of two years immediately prior to nominations.  If a candidate was not actually suspended from membership during that period, the Judges of Election do not have the authority retroactively to determine that he could or should have been suspended . . . . [R]etroactive challenges to a candidate’s prior good standing should not be permitted.

See also Protest of Roy Hopson (Local Union 194), Hearings Panel (July 22, 1986) (A nominee whose dues had been in arrears but who had not been suspended was eligible to run for office.).

The IHO recently adopted the rationale of the prior rulings of the Hearings Panel in In re Local Union 580, IHO Order and Memorandum, 97-38P (February 5, 1998).

Although they did not pay their full initiation fees at the time they joined the union, Prince, Fracassi, and Rossi received the full benefits of membership in LIUNA and Local 527 for a number of years.  Their dues were accepted, they received union cards, they accepted jobs, they were posted on the out-of-work list, and they received training.  They were never suspended for failure to pay the full initiation fee.  The Judges cannot, years later, retroactively declare a member not in good standing when the local union has accepted him into membership, has given him a membership card, and recognized him in good standing for years, including the two years immediately preceding the election.  

Similarly, although Trunzo should have been suspended in 1997 for being in arrears in his dues payments, he was not suspended, and, therefore, was eligible to run for office.  Curiously, the Judges ruled correctly as to Trunzo, in contrast to their decision regarding Prince, Fracassi, and Rossi.

The Judges and attorney Randazzo were also in error in concluding that Fracassi could not act as a nominator for Strizzi.  It has been the policy of LIUNA that:

“ . . . any member who has not been suspended and is current in the payment of his dues shall not be deprived, where otherwise qualified, of his right to vote in a regular election of the Local Union.”  This would include the right to nominate candidates as well.  Accordingly, . . . members not then working at the calling, but who are not suspended and who are current in the payment of their dues are entitled to nominate candidates and to cast a vote for the officer(s) of their choice in the union's election.

See Letter from General President Angelo Fosco to Donald G. Glatfelter, Sr. (May 22, 1980); see also, Letter from General President Angelo Fosco to Tom Serridge, Business Manager, Local Union 569 (May 5, 1983).

Attorney Randazzo, in addition to giving erroneous advice regarding the initiation fees and qualifications for being a nominator, advised the Judges that the individuals who had not paid full initiation fees were perpetrating a scam on the union, and made other unfounded observations regarding the protestors.  There are no facts in the record to support such an opinion. 

Supervisor Working at the Calling

The mere fact that a person is designated as a “supervisor,” standing alone, does not bar the person from participation in local union meetings or running for local union office.  See Letter from General President Peter Fosco to Wilbur Freitag, Vice President, Local Union 32 (November 5, 1974).

The test of whether an individual is a part of management or part of the organized work force is not the title of the position he holds, but his duties, his pay, his role in the management of the company, and whether the facts indicate a conflict of interest between his obligations to his employer and his obligations to the union.  Id.

In this case, DeCastro was not part of management.  He remained an hourly employee.  He did not have the authority to hire and fire employees.  When he was laid off due to seasonal downturn, he placed his name on the out-of-work list.  Further, at the time of his nomination in 1997 DeCastro had been a member of the Executive Board for a number of years, despite his role as “assistant superintendent.”  Under these circumstances, the Judges are estopped from challenging DeCastro’s qualification to run for office.

Conclusions

1.        Even though Prince and Fracassi failed to pay the full initiation fee, they have received the full benefits of union membership for several years and have never been suspended for the failure to pay the full fee.  The Judges had no authority to suspend Prince and Fracassi retroactively and find them unqualified to run for office.  Prince and Fracassi were qualified and should have remained on the ballot.  The election for the offices of Vice President and Auditor, therefore, should be rerun.

2.        The Judges were in error in disqualifying Fracassi as a nominator.  Fracassi was qualified as a nominator and the candidate nominated by him, Strizzi, should have remained on the ballot for Secretary-Treasurer.  This error was cured, however, when the Judges reopened the nominations for Secretary-Treasurer, and Strizzi was renominated and permitted to run.  Mullen’s protest regarding Strizzi’s renomination is denied as being moot, since Strozzi lost the election.

3.        Fournier properly was suspended in 1996 and, because he was reinstated within two years of his nomination, he was unqualified to run for office; therefore, the decision of Judges stands and the election for the office of Sergeant-at-Arms shall not be rerun.

4.        Moniz was working at the calling and was qualified to run for Delegate to the District Council; the election for Delegate to District Council will be rerun.

5.        For the same reasons that Prince and Fracassi were qualified to be candidates, Rossi was qualified to nominate candidates; Strizzi and Couto should have remained on the ballot for Delegate to the District Council.  They are eligible to run for office in the rerun election. 

6.        Trunzo was qualified to run for Delegate and should be permitted to be nominated and run for office in the rerun election.

7.        Because there will be a rerun nomination and election for Delegate to District Council, Mullen’s protest regarding Strizzi’s and Counto’s renomination is denied as moot.

8.        DeCastro was working at the calling even though his job is termed assistant superintendent.  Because DeCastro was a member of the Executive Board at the same time he was a supervisor, Local 527 is estopped from finding him disqualified now.  DeCastro was qualified to run for Executive Board; therefore, the election for that position should be rerun.

9.        It is apparent that the Judges ruled against any opponent of the Carrozzi team who was the subject of a protest.  Although the Judges were guided on some questions by the erroneous advice of the union's attorney, their rulings were inconsistent, and often without factual basis.  They went so far as to disqualify an incumbent officer. 

Decision

1.        The election for the following offices shall be rerun: Vice President, Auditor, Delegate to the District Council, and Executive Board.  The rerun election will include reopening the nomination process.

2.        A new panel of Election Judges is to be selected for the rerun election.  Three new Election Judges are to be selected by the Regional Manager from another local union in the region.  Three alternative Judges are also to be selected in the same manner to serve in the event one or more of the Judges cannot serve.

3.        Questions relative to the rerun election matters should be referred to a Canadian attorney with no prior affiliation with Local 527 who should be selected by the LIUNA General Counsel and the Regional Manager.

4.        This Order is to be mailed by Local 527, by first class mail, to all members of Local 527 in good standing.

PETER F. VAIRA

INDEPENDENT HEARING OFFICER