OFFICE OF THE INDEPENDENT HEARING OFFICER
IN THE MATTER OF |
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DOCKET NO. |
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LOCAL UNION 92, EDMONTON, ALBERTA, CANADA |
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98-28P |
AMENDED
ORDER AND MEMORANDUM
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PROCEDURAL HISTORY
This decision addresses the joint protests of Jim Dolan (“Dolan”) and Ernie Cardinal (“Cardinal”) and the protest of James MacQueen, concerning the June 26, 1998 election of officers for Laborers’ International Union of North America (“LIUNA”) Local Union 92 (“Local 92”) in Edmonton, Alberta, Canada. Dolan was the incumbent candidate for Business Manager. His opponent was Terry McQuade (“McQuade”). McQuade won the election, by approximately 200 votes.
Dolan and Cardinal lodged protests with the Independent Hearing Officer (IHO) on June 30, 1998 concerning the conduct of Rose Skakun, the Local 92 dispatcher, during the election campaign. MacQueen lodged a protest with the IHO on May 19, 1998 concerning the qualifications of McQuade to run for office. IHO staff members conducted telephone interviews of members during the summer of 1998. On November 19 and 20, 1998, the IHO’s staff conducted interviews with numerous members of Local 92 in Edmonton.
Based upon the investigation the IHO hereby issues the following proposed findings, conclusions, and decision. The decision will become final on January 20, 1999, unless parties file objections thereto, and request a reconsideration of the decision by January 20, 1999 in the manner more fully described below.
FINDINGS OF FACT
1. McQuade joined LIUNA in 1975.
2. McQuade began work as a full time professional organizer for Local 955 of the Operating Engineers from 1991 until February 1997. During the time he was employed by the Operating Engineers, McQuade kept his LIUNA dues current, although he performed no work as a laborer. He did not attend any LIUNA membership meetings until two months prior to the June, 1998 election.
3. In April 1997, two months after he left his position with the Operating Engineers, McQuade placed his name on the Local 92 out of work list. He then went to work for a non union contractor. He worked for that contractor until November 1997.
4. In November, 1997 McQuade started working at another non union employer, Waschuk Equipment Rental Ltd. (“WERL”). In December, 1997 Jerry Kirkey, Secretary-Treasurer of Local 92 asked McQuade to recruit workers at WERL to become members of Local 92. McQuade said he attended two organizing meetings and signed up one new member for the local. He said he was laid off from WERL in February, 1998. Although Kirkey started an organizing drive relating to WERL, his efforts did not amount to a formal “salting” drive and McQuade’s employment at WERL, which began prior to the organizational effort, cannot be considered as being part of a formal salting campaign.
5. By February, 1998 McQuade decided that he would run for Business Manager of Local 92 in the June, 1998 election. He kept his name on the out of work list, but admits he didn’t answer any job calls during this period. He told an IHO staff lawyer he didn’t respond to any job calls during this period because he was too busy campaigning for Business Manager. Later he said that his skills sheet only listed him for work on pipelines and that during the period from February to June, 1998 there was no pipeline work available. McQuade’s skill sheet, filled out by McQuade, indicates that he is capable of performing all types of laborer’s work.
6. McQuade said he was aware that Rose Skakun (“Skakun”) was actively campaigning for him. He encouraged her to make calls to members on his behalf. He said he had heard rumors that Skakun was telling members that Dolan had embezzled a great deal of money, but denied telling her to make such statements.
7. Skakun has been a member of LIUNA since 1981. During most of this period she acted as dispatcher, a position she presently holds.
8. Skakun is a member of LIUNA, but is prohibited from working at the calling by Article V, Section 4 (c) of the Constitution. She is a LIUNA member for the purpose of insuring her pension benefits.
9. Skakun has been an active member of Office Professional Employees International Union (“OPEIU”) since 1995 which is her bargaining representative with her employer, Local 92.
10. Skakun said that she actively campaigned for McQuade leading up to the election in June, 1998.
11. Skakun told several members that if Dolan was re-elected she would be fired.
12. She said she made “a lot” of telephone calls to Local 92 members prior to the election. She said she urged them to vote for McQuade. She stated that she placed all of the calls from her home, during non-working hours. She denied making any campaign calls from the local office. She denied using any office material in making the phone calls and denied she obtained the home phone numbers or the names of members from the local membership list.
13. Skakun stated that she told one member that Dolan had undertaken an outrageous spending pattern for his per diem expenses while travelling. She stated she also told members there were “dispatching irregularities.” She denied telling any member she called that Dolan had actually embezzled any money. Her denial is directly contradicted by statements made by other Local 92 members in interviews with IHO staff members which are set out below.
14. Lenny O’Toole has been a member of LIUNA since 1974; the past 17 years he has worked in the Ft. McMurray area. He has been a member of the Local 92 Executive Board for the past three and one half years. O’Toole stated that two days before the election, two LIUNA members, Starlene Campbell and Kathy McCrea came into his office, highly upset. They demanded to know why he and Jim Dolan had stolen $2.5 million from the local treasury. They said Skakun had made these allegations to them. Based on Skakun’s allegations, they said they had decided to vote for McQuade for Business Manager.
15. O’Toole said that shortly after the conversation with Campbell and McCrea, Shirley McDonald, a member, called him. She said that Skakun had telephoned her from Edmonton and told her that “a pile of money” was missing from the local treasury.
16. O’Toole said that several other members of the local had told him that Skakun had telephoned them prior to the election and told them that Dolan had stolen a great amount of money.
17. Max Serafin has been a LIUNA member for 20 years. Serafin stated that Skakun telephoned him at his home three days before the election. She told him that at the beginning of Dolan’s tenure as Business Manager there was $3 million in the local treasury; now there was less than $1 million. She told him the loss was due to Dolan’s “fancy living.” She told him that Dolan and his cronies were “stealing from us.” She told Serafin that if he voted for Dolan he was giving him a “license to steal.”
18. Serafin said he knows at least 10 other members of the local who told him that Skakun had telephoned each of them prior to the election, urging each to vote for and campaign for McQuade.
19. Norm Bush has been a member of LIUNA for twenty one and one half years. Bush said shortly before the election he received a telephone call at his home from Skakun. She told him she was campaigning for McQuade. Bush told her he was planning to vote for Dolan. She told him that $2.2 million was missing from the local treasury.
20. Robin Shaw has been a member of LIUNA since 1991. At the time of the election, he was doing pipeline work in Ft. McMurray. Sometime shortly before the election, Shaw received a telephone call from Skakun. She told him that Dolan had “ripped off” two million dollars from Local 92. She said that if Dolan wins, “there will be no local left.”
21. Shaw said that he believed Skakun, as she had a great deal of credibility with members of the local, based upon her position as dispatcher. He said he started spreading the word to LIUNA members in the Ft. McMurray area that Dolan was stealing money. He said that there were a great many members of the local there who believed that Dolan was stealing money, based on the statements from Skakun.
22. Ron Schram has been a member of LIUNA since 1975. Schram said that a few days before the election, Skakun telephoned him at home. She told him that Dolan had been “skimming money” from the local’s treasury. She said the balance dropped from four million dollars to less than one half million dollars. He asked her how she became aware of such activity. He said she replied, “I just know that.” She then made a number of positive remarks about McQuade, and urged Schram to vote for him. She told Schram that if Dolan won the election, she would be “out of a job.”
23. Dale Robertson has been a member of LIUNA since 1973. Robertson said Skakun telephoned him at his home on an evening shortly before the election. She told him Dolan was squandering the local’s money on fancy cars and trips. She told him at least $400,000 was missing since Dolan became Business Manager. She told him that her job was on the line if Dolan won the election, and she recommended that he vote for McQuade.
24. Ken Reid has been a member of LIUNA since 1967. Reid said he was in the local’s office about a week before the election. He said Skakun told union members who came to the office that since Dolan had become Business Manager, there was $250,000-$400,000 missing from the treasury. He heard Skakun telling persons over the telephone at the local office to vote for McQuade. Reid said he also saw Skakun campaigning for McQuade outside of the Local 92 office.
25. On June 1, 1998, ballots were mailed to all members. The results of the Election were announced on June 27, 1998. McQuade won the position of Business Manager, by approximately 200 votes.
DISCUSSION
Rose Skakun
The 1991 LIUNA International Convention Amended Article V, Section 4(c) of the Uniform Local Union Constitution (“Constitution”), to prevent local union office personnel, such as secretaries, dispatchers, and administrators, from being qualified as working at the calling. The amended provision states as follows:
. . . [E]mployment by the Local Union in a clerical or administrative
position shall not be deemed to be “working at the calling.”
The drafters of the amendment sought to prevent those office personnel, who are generally well known by local members, from capitalizing on their popularity and credibility as insiders from becoming union officers, without ever really working as laborers. This is especially true of persons who act as dispatchers, who gain particular popularity and recognition for making job assignments. The General Executive Board made the following remarks about the purpose of the amendment in a case where one such dispatcher ran for office and was elected despite this prohibition:
. . . The Convention was concerned that the elected staff of the Local
Union should have the undivided loyalty of Local Union employees. In particular, the Convention was aware that where clerical personnel handle dispatching duties, there is the inherent potential for the clerical employees to secure widespread popularity as the perceived source of employment.
Protest of Robert McGregor, Local 597, Oshawa, Ontario, Hearing Panel Case C-10, adopted by the General Executive Board, August 17, 1993.
The instant case presents a similar issue, but goes further. Skakun has been employed as an administrative worker at Local 92 for 17 years. She is well known by members in her role as dispatcher. Although she did not run for office, Skakun used her position in the office to wage a vigorous campaign on behalf of Terry McQuade, a candidate for Business Manager.
She admits making “a lot” of phone calls. IHO staff members estimate that she placed over 100 telephone calls to union members, actively promoting McQuade. Although she denies making statements to the effect that the incumbent Business Manager, Jim Dolan either embezzled or misappropriated over two and one half million dollars in union money, there is ample evidence that her remarks carried that message.
She admitted in interviews with IHO personnel that she had no evidence of such misappropriation.
Interviews conducted by IHO personnel discussed above, revealed that the statements made by Skakun, a trusted office person and dispatcher, had a significant negative effect on the campaign of Jim Dolan.
The question posed here: may a trusted office person, who cannot hold political office for constitutional reasons, campaign for someone else running for political office.
The prohibition against running for office in Article V, Section 4 (c) was intended not only to keep the office personnel from running for office, but also to keep them from capitalizing on their credibility by campaigning for other persons. If Skakun had made 100 phone calls on behalf of her boss, the incumbent Business Manager, instead of McQuade, the calls would have been a violation of LIUNA election policy. See In the Matter of Local 67, IHO Order and Memorandum, 95-16P (October 4, 1995).
The effect of such a campaign was seen in this race. Skakun informed over 100 members that she knew the incumbent Business Manager had misused or embezzled two and a half million dollars. Her statements were accepted as true, based upon her office position. This certainly affected the election.
Interviews of numerous Local 92 members indicate that Skakun’s message was loud and clear, that Dolan had misused union funds. Her motive was also clear; she stated that she would be fired if Dolan was re-elected. The situation was aggravated by the fact she had no evidence to support her allegations.
There is another compelling reason to prohibit office personnel from running for election or from campaigning. Those office personnel have ready access to member information, such as membership lists, addresses, phone numbers, and information as to good standing. It is a violation of LIUNA election policy to make union personnel or union information available to one candidate, without offering the same material or information to all candidates. See In the Matter of Local 67, supra.
In this matter Skakun placed approximately one hundred phone calls to members. She contends that she did not obtain the names or phone numbers from the local union records. This statement is not credible.
There is also evidence that she conducted some of her campaign activity on the job, which is also a violation of LIUNA Election policy. See In the Matter of Local 67, supra.
Skakun contends that she is permitted to campaign, nonetheless, because she is a LIUNA member. Skakun is a LIUNA member solely for pension purposes. Her LIUNA union membership maintained for pension purposes, cannot be utilized to override the spirit of Article V, Section 4 (c) of the Constitution.
Moreover, Skakun is a voting member of OPEIU, which is her bargaining agent with Local 92. If permitted to campaign in the LIUNA election, she would, in effect, be campaigning for or against the person who would be her employer, and who would negotiate with her own bargaining agent involving her job conditions, salary and other benefits. This conflicting arrangement would subvert the collective bargaining process between Local 92 and OPEIU.
I find that Skakun was not permitted to campaign; that she used union resources to do so, and that her activity affected the outcome of the election.
Terrence McQuade
McQuade’s candidacy was protested on the grounds that he was not working at the calling and was not a member in good standing.
The evidence indicates that for six years prior to April 1998, McQuade was a full time professional organizer for the Operating Engineers. During those six years, McQuade maintained his membership in LIUNA in good standing by keeping current in his dues.
Article V of the Constitution provides:
In order to qualify as a candidate for any office in a local union, a member:
Section 1. Shall be required to 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 to be current in the payment of his dues;
. . .
Section 4. 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:
(a) Employment for which the Union serves, or is actively seeking to serve, as the exclusive collective bargaining representative of employees;
. . .
(d) Periods 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 or hiring hall, if any operated by the Local Union;
. . .
In 1997, McQuade lost his job as a professional organizer for the Operating Engineers. McQuade put his name on the out of work list a little over one year prior to the nomination meeting.
It appears that McQuade’s intention was to work at the calling for one year prior to the nomination in 1998. Based on the fact that he had kept his LIUNA dues current for several years, he hoped to be eligible for election, even though he had not worked as a laborer for six years. [1]
The facts reveal however, he did not in good faith work at the calling for the one year prior to the nomination and election. McQuade worked for a non union contractor from June, 1997 until October, 1997. In November he began working for WERL, another non union contractor.
McQuade was laid off on February, 1998. McQuade told IHO staff members that from February, 1998 until the date of the nomination and election that he was too busy campaigning to work at the calling.
LIUNA members may work for a non union contractor when union work is not available. In this situation, I do not have to further investigate McQuade’s employment with non union contractors to determine if there was union work available. McQuade did not seek any union work from February to the date of the election because he was campaigning.
I find that McQuade was not working at the calling in good faith for one year and should not have been a candidate for Business Manager.
The election for Business Manager will be rerun. McQuade is not eligible to be a candidate in the rerun election. The election will include a new nomination process.
CONCLUSIONS
1. Skakun’s campaigning was improper, and had an effect on the outcome of the election.
2. McQuade was not working at the calling for one year prior to the election.
DECISION
The election for Business Manager will be rerun. The rerun election will include a new nomination process, open to all eligible members.
Skakun is not permitted to campaign during the election. McQuade is not permitted to run in the rerun election.
Dolan, Cardinale, McQueen, McQuade, Skakun or Local 92 may file objections to this decision and request reconsideration by January 20, 1999, with the office of the IHO. Otherwise the decision will become final on that date.
The IHO’s address is:
Peter F. Vaira (Independent Hearing Officer)
Vaira & Riley, P.C.
1600 Market Street – Suite 2650
Philadelphia, PA 19106
(Fax) 215-751-9420
Once this Decision becomes final, Local 92 is directed to mail copies to all members of Local 92 in good standing.
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PETER F. VAIRA |
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INDEPENDENT
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Date: January 7, 1999 |
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Local Union 92 James Dolan Ernie Cardinal James MacQueen Victor Morden |
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[1] Because I decide this matter on the issue of working at the calling, it is not necessary to reach the more complex issue raised by McQueen of whether McQuade’s employment by the Operating Engineers fails to constitute membership in good standing, despite his current dues payments.