In the
Matter of Local 334
Laborers' International Union Of North America
Independent Hearing Officer
Docket No. 99-26P
Decided October 28, 1999
Order and Memorandum
This Order and Memorandum addresses the election protests of Odell Sapp, Lucretia Sturdivant, Duane Robinson, Carroll Finney and Andrew Miller regarding alleged irregularities in the nomination and election process of the Laborers' International Union of North America ("LIUNA") Local Union ("Local 334) in Detroit, Michigan.
Based upon the investigation by staff members of the Independent Hearing Officer ("IHO"), and the investigation of the Inspector General ("IG"), the protest of Robinson is GRANTED. The election of all officers shall be rerun. All other protests are DENIED.
Findings
of Fact
1.
Local 334 is located in Detroit, Michigan and has approximately 2,300 members.
2. The nomination meeting for the Local 334 election of officers was held on April 22, 1999. The election of officers was held on May 5, 1999.
3. Odell Sapp ("Sapp") is a retired member of Local 334. Andrew Miller ("Miller") is an active member of Local 334.
4. Sapp and Miller protested that at the nomination meeting there was no one present to inspect members' books and that consequently, non-members or members who were not in good standing may have acted as nominators or may have been nominated.
5. Though the Sergeant-at-Arms was not present on April 22, 1999, to inspect the books of the persons who were present, the minutes of the nomination meeting reflect that the nominators and the nominees were in good standing.
6. Lucretia Sturdivant ("Sturdivant") and Carroll Finney ("Finney") are members of Local 334. Finney was an unsuccessful candidate for Business Manager on the "Action Slate" in the May 5, 1999, election of officers.
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423 In the Matter of Local 334 1999
7. Sturdivant and Finney protested that Percy Roberson ("Roberson") and Jon Scott Covington ("Jon Covington") were unqualified to run for office as both had been convicted of felonies.
8. On August 25, 1993, Jon Covington entered a plea of no contest to a charge of felonious assault and was convicted in the State of Michigan Recorder's Court.
9. On December 22, 1998, Jon Covington's conviction was set aside by the Third Judicial Circuit of the State of Michigan.
10. On March 26, 1999, Regional Manager Terrence Healy requested assistance from Inspector General Douglas Gow as to whether Jon Covington could be hired as a Field Representative. Healy provided Gow with a copy of a letter dated March 16, 1999, in which the United States Department of Labor informed an attorney for Jon Covington that Jon Covington was not barred under Title 29 U.S.C. § 504(a) from being a Field Representative.
11. On April 9, 1999, Gow informed Healy that there did not appear to be any bar to Local 334 hiring Jon Covington as a Field Representative.
12. Jon Covington was qualified to be a candidate in the May 5, 1999, election of officers.
13. On July 22, 1997, Roberson pled no contest to assault and battery charges in Michigan's 36th District Court. The judge did not accept the plea and instead took the plea under advisement for one year during which time Roberson was to have no further contact with law enforcement. On July 22, 1998, the judge dismissed the charges against Roberson and no conviction was entered. Accordingly, Roberson is not barred from holding office under 29 U.S.C. § 504(a). Roberson was qualified to be a candidate in the May 5, 1999, election of officers.
14. Finney also protested that certain candidates who were to be on his slate appeared on the Millennium Slate on the official ballot. Finney alleged that Keith White ("White"), the incumbent candidate for Secretary-Treasurer, agreed to run on his slate, along with Charles Robinson, Gerald Montie, Danna Hill and Marvin Johnson.
15. White, Charles Robinson, Gerald Montie, Danna Hill, and Marvin Johnson all appeared on the Millennium Slate on the official ballot.
16. The IHO has received no protests from the individuals that Finney contends were listed incorrectly on the ballot. White told IHO staff members he chose to run on the Millennium Slate, and so informed Finney.
17.
The IHO finds no impropriety in the candidate listings on the ballot.
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In the Matter of Local 334 1999 18.
Duane Robinson ("Robinson") is a member of Local 334 and was an
unsuccessful candidate for President. Robinson protests that Vern Covington,
Keith White and William Bartlett used union funds, through the Laborers
Employers Cooperation and Education Trust ("LECET"), to distribute gym
bags bearing the names of the three key officers of the Millennium Slate.
Robinson contends that the distribution was a campaign tactic paid for with
union funds which gave the Millennium Slate an unfair advantage in the May
election.
19. The LECET fund is one of LIUNA's three joint labor-management trust funds and is a partnership between LIUNA and its signatory contractors which provides the services of a trade association to contractors and local union officials alike. See The Tri-Funds Brochure (1998). Using resources such as market-oriented training programs, safety programs that reduce workers' compensation costs, and a highly skilled workforce, LECET "focuses on specific markets and on the industry as a whole to generate project and job opportunities for Laborers and their signatory contractors." See LECET 1998 Annual Report at 2. The LECET fund Marketing Department promotes LECET Fund by "meeting with key industry leaders, continuing [a] ... widely praised ad campaign, and creating highly professional marketing materials." See Id. at 26. The concept is to have labor and management work hand in hand to acquire business for contractors who employ LIUNA members. The target of LECET fund promotional efforts should be large firms and developers who have the capacity to hire contractors who employ LIUNA members.
20. Local 334 has its own LECET fund with no other locals involved. LECET funds are the result of employer contributions pursuant to the collective bargaining agreement. The funds are distributed upon the vote of the LECET fund trustees.
21. William Bartlett ("Bartlett"), White, and Vern Covington are the LIUNA trustees of the Local 334 LECET fund. Bartlett, White, and Vern Covington were also the incumbent and successful candidates for President, Secretary-Treasurer and Business Manager in the May 5, 1999, election. Salvatore Simone, David Car, and Forrest A. Henry are the Contractor trustees of the Local 334 LECET fund.
22. Bartlett, the incumbent President, said that the idea for distributing the gym bags originated in November of 1998 as promotional Christmas presents for the Local 334 members. Bartlett said that in the past, the LECET fund had distributed hats as a promotional gift for the members, so it was decided to use the LECET fund for the gym bags. According to Bartlett, the goal was to begin distribution of the gym bags to Local 334 members at a Christmas party in December of 1998.
23. Bartlett, White, and Vern Covington agreed to present the idea for the gym bags to the LECET fund contractor trustees for approval and funding as a LECET promotion.
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In the Matter of Local 334 1999
24. The three officers contacted Jeffrey Heldt ("Heldt"), the LECET attorney, because a LECET trustees meeting was not scheduled and they wanted to begin distributing the bags at the Christmas party. Heldt prepared a letter explaining the promotional idea of the gym bags and seeking approval of funds for the gym bags and faxed it to the contractor trustees. The contractor trustees then faxed an approval dated December 8, 1998, back to Heldt. The approval is signed by David Carr and stated, "This is ok with us."
25. According to Heldt, in the future, approval for such expenditures will only be sought at LECET fund meetings.
26.
White purchased 1500 gym bags at a cost of $30,225.
27.
The side of the gym bags bears the motto "THINK Laborers' Local 334"
with the names and executive board positions of Vern C. Covington, Keith G.
White, and William A. Bartlett listed underneath. Below is a replica of the
screen print on the gym bags.
THINK
!!!
LABORERS' LOCAL 334
VERN C. COVINGTON
Business Manager
KEITH G. WHITE
Secretary-Treasurer
WILLIAM
A. BARTLETT
President
28. The side panel of the gym bags bears a screen print of the LECET logo which is smaller than the "THINK ! ! !" logo. The names of the LECET fund employer contractors are not listed on the bags.
29. The "THINK Laborers' Local 334" logo with the officers' names is substantially more visible on the gym bags than the LECET logo. The "Think Laborers' Local 334" logo is totally removed from the LECET logo, and each logo is on a different side, and cannot be viewed simultaneously.
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In the Matter of Local 334 1999 30.
The gym bags were distributed to Local 334 members at the Local 334 Christmas
party in December of 1998, at the union hall when members paid their dues, and
also at various job sites. The IHO has personally examined the gym bags and
finds them to be a substantial gift; their cost alone indicates that they were
not mere tokens. Gym bags were allegedly also given to the contractor trustees
to distribute to LECET fund member contractors, however there is no evidence
that any bags were distributed by them. There is some question when the
distribution of the gym bags to members was completed. According to Finney, in
April of 1999, Field Representative Ray Skeen (now retired) came to the Ford
Engine Plant in Dearborn, Michigan and passed out the last three gym bags in his
possession. Ronald Allen, a Local 334 member since 1974, stated that the bags
were distributed through May of 1999. According to Vern Covington, all of the
bags were distributed well before the election. According to Bartlett and White,
all of the bags were distributed by the end of February, 1999. The exact dates
of the distribution are not crucial. It is the fact that the gym bags were
distributed to Local 334 members during the four or five months before the
election.
31. Keith White was in charge of drafting the printing on the bags. According to White, the omission of the Contractor Trustees' names on the bags was an oversight by him and unintentional.
32. According to White, the use of the term "THINK" was to instill pride and professionalism in the laborers carrying the bags and not to imply that members should vote for the officers whose names were listed on the bags.
33. The three officers contend that the gym bags were not distributed as a campaign device for the upcoming election. All three officers have indicated that the gym bags were distributed as a way to reward the membership and promote the LECET.
34. Robinson, Finney and Allen state that there was no active campaigning in conjunction with the distribution of the gym bags.
Conclusions 1.
The nomination process was not affected by the fact that membership books were
not examined on the night of the nominations meeting.
2. Jon Covington was eligible to run for office in the May 5, 1999, election of officers for Local 334.
3. Roberson was eligible to run for office in the May 5, 1999, election of officers for Local 334.
4.
There was no impropriety in the listing of the candidates on the ballot.
5.
The IHO concludes that the ordering and distribution of the gym bags can only be
viewed as a campaign tactic, despite the denials of the incumbent officers. The
purpose of LECET funds is to convince major general contractors, developers or
municipal authorities who undertake construction projects to utilize contractors
who employ LIUNA members. Distributing gym bags to LIUNA workers with the names
of the union officers hardly comports with this purpose. It is not a purpose of
LECET to insure the popularity of its LIUNA trustees, or their re-election.
6. The idea to create and distribute the gym bags was conceived by incumbent union officers who were also the LECET fund trustees. The LECET fund contractor trustees were contacted by letter and responded by fax. The names of the contractor trustees were not printed on the bags. According to White, an incumbent officer, the contractors' names were omitted by mere oversight. The IHO finds this explanation unpersuasive.
The IHO concludes that the printing and distribution of the gym bags was a campaign tactic that had the promotion of the incumbent officers as its purpose. The distribution of the gym bags to Local 334 members had little or nothing to do with LECET fund purposes, even if the bags had contained the contractor trustees' names. The fact that the contractor trustees agreed to the distribution does not alter the effect of the distribution to Local 334 members.
7. The officers of a LIUNA local union owe a high degree of fiduciary responsibility to the local union members.
"Any person who represents LIUNA and its members, whether elected or appointed, has a sacred trust to serve the best interests of the members and their families. Therefore, every officer and representative, must avoid any outside transaction which creates an actual or potential conflict of interest ....
The
outside activity referred to includes activity such
LIUNA Ethical Practices Code, Business and Financial Activities of Union .'
Officials.
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In the Matter of Local 334 1999
The
IHO has held that the use of outside trust or pension funds to directly or
indirectly aid in a campaign will require the election to be set aside See In
the Matter of Local 42, IHO Order and Memorandum, 96-51P, 96-52P (August 4,
1997) (Pension funds used to distribute a 13`}' pension check every election
year, and thereafter, trustees of pension fund, who were running for Local Union
election, used check as campaign issue).
The purchase and distribution of the gym bags violated the EPC.
8. Although it is not necessary to decide the issue, the LECET trustees should be aware that expenditures of LECET funds, such as involved in this matter, may violate Title 29 USC § 481(g), which prohibits the use of employer funds to promote the candidacy of any person. Section 481(g) states:
No moneys received by any labor organization by way of dues, assessment, or similar levy, and no moneys of an employer shall be contributed or applied to promote the candidacy of any person in any election subject to the provisions of this subchapter. Such moneys of a labor organization may be utilized for notices, factual statements of issues not involving candidates, and other expenses necessary for the holding of an election.
The
prohibition against the use of employer funds to promote candidates in an
election applies "to all employers, even though there is no relationship
between the contributing employer and the candidates or the union." Brock
v. Local 538, International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, 645 F.Supp. 156 (W.D. Pa. 1986). Courts
have held that good intentions will not excuse a violation of 29 U.S.C. §
481(g). Donovan v. Local 719, United Auto., Aerospace and Agr. Implement
Workers of America, 561 F.Supp. 54 (N.D. Ill. 1982).
Title 29 U.S.C. § 481(g).
The LECET fund may qualify as an employer within the meaning of 29 USC § 481(g), depending on the status of the national LECET fund and the Local 334 LECET fund employees, and the coordination between the national LECET fund and the Local 334 LECET fund. In view of the finding above regarding the EPC, the IHO need not determine if the purchase and distribution of the gym bags constitutes an employer contribution prohibited by § 481(g).
9. The distribution of the bags had an effect on the outcome of the election.
10. The incumbent officers ran on a slate; thus the distribution of the gym bags affected the voting regarding the entire slate.
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In the Matter of Local 334 1999
Decision
The protests of Sapp, Sturdivant, Miller, and Finney are DENIED. The protest of
Robinson is GRANTED. The election of all offices for Local 334 shall be rerun.
The rerun election need not include the nomination process.
A copy of this Order and Memorandum shall be mailed to all Local 334 members
with the next general mailing before the rerun election.
PETER F. VAIRA
INDEPENDENT
HEARING OFFICER