OFFICE OF THE INDEPENDENT HEARING OFFICER
IN THE MATTER OF |
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DOCKET NO. |
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LOCAL UNION 1140 OMAHA, NEBRASKA |
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99-28P |
ORDER AND MEMORANDUM
This Order and Memorandum addresses the election protest of Thomas Merksick (“Merksick”) arising out of the 1999 election of officers of Laborers’ International Union of North America (“LIUNA”) Local Union 1140 (“Local 1140”) in Omaha, Nebraska.
On July 1, 1999, the Independent Hearing Officer (“IHO”) issued a Proposed Order and Memorandum to all involved parties. Objections and comments to the Proposed Order and Memorandum were solicited from the involved parties. Local 1140, through its attorney, submitted a response, objecting to certain findings. After considering the objections of Local 1140, the protest of Merksick is GRANTED. The election for Business Manager/Secretary-Treasurer shall be rerun.
FINDINGS OF FACT
Merksick’s Disqualification
1.
Merksick is a member in good standing of Local 1140.
2. On April 29, 1999, Local 1140 held its nomination meeting.
3. Merksick was nominated for Business Manager/Secretary-Treasurer and Delegate to the District Council.
4. Merksick was opposed by the incumbent Business Manager/Secretary-Treasurer and Delegate to the District Council, Ed Heavican (“Heavican”).
5. On May 6, 1999, the Local 1140 Judges of Election found Merksick ineligible to run for office based on the protest of Heavican, alleging a violation of Article V, Section 3 (d) of the Uniform Local Union Constitution (“Constitution”).
6. On May 10, 1999, Heavican contacted the office of the IHO. Heavican requested advice as to Merksick’s eligibility for office. Because this matter was not a protest the IHO referred Heavican to Ed Smith (“Smith”), Regional Manager for the Midwest. Heavican thereafter sought advice from Smith.
7. On May 11, 1999, Local 1140 held its general membership meeting.
8. At the May general membership meeting, the Judges of Election announced that Merksick had been found unqualified for candidacy on the grounds that he was not working at the calling.
9. In a letter dated May 15, 1999, Merksick protested his disqualification to the General President, Arthur Coia.
10. On or about May 19, 1999, Smith instructed Heavican to have Merksick’s name placed on the ballot.
11. The IHO received Merksick’s official protest on May 27, 1999. At that time, the protest was moot because Merksick’s name had been reinstated on the ballot.
12. Heavican stated that he assumed he was not instructed to notify the Judges of Election or Merksick of Merksick’s name being reinstated on the ballot. Heavican did not inform Merksick or the Judges of Election that Merksick’s name was again on the ballot.
13. Heavican’s failure to inform the Judges of Election and Merksick of the re-instatement of Merksick was not done in bad faith.
14. On May 27, 1999, Merksick learned informally from other Local 1140 members that his name was placed on the ballot.
15. On May 28, 1999, Merksick contacted the Local 1140 office and confirmed that he was on the ballot.
16. The weekend of May 29 through June 31, 1999, the office of Local 1140 was closed.
17. On June 1, 1999, Merksick requested a printout of the membership list.
18. On June 2, 1999, Merksick picked up a printout of the membership list.
19. On June 2, 1999, Jerry Breemes, a Judge of Election, received official notification from Local 1140 that Merksick’s name was to be placed on the ballot.
20. The days of May 29, 30, and 31, 1999, fell upon the Memorial Day weekend. Because of the holiday, these days were ineffective for campaigning purposes.
21. Merksick only had two days prior to the election on which to actively campaign.
22. The election was held on June 3, 1999.
23. Merksick was lost to Heavican by forty-seven votes.
Limitation on Dues Payments
24. On election day, the polls were open from 8:00 a.m. to 8:00 p.m.
25. On election day Local 1140 allowed members whose dues were in arrears to pay their back dues before voting if they paid their dues between 7:30 a.m. and 4:30 p.m.
26. Those members who attempted to pay their outstanding dues after 4:30 p.m. on election day were not allowed to vote. According to Secretary-Treasurer Heavican, the dues payments were cut off at 4:30 p.m. because that is the normal time the office is open on non-election days.
27. Merksick protested on the grounds that dues payment cut off at 4:30 p.m. unfairly prevented members from voting, and it was a discriminatory practice.
28. The 4:30 dues payment cutoff was not done in bad faith.
29. There were approximately six members who were denied the right to pay their outstanding dues and were not able to vote because of the 4:30 p.m. cutoff time.
Qualification of Leonard Schafer as Judge of
Election
30. Leonard Schafer (“Schafer”) was appointed Chairman of the Judges of Election.
31. In 1992, Schafer was convicted of an offense encompassed by Title 29 U.S.C. ' 504 (a) (2). Pursuant to Title 29 U.S.C. ' 504 (a) Schafer is not eligible to hold office until the year 2005.
CONCLUSIONS
1. Once it was determined that Merksick’s name was to be placed on the ballot he should have been promptly informed of the decision.
2. Although the failure to notify Merksick that he was once again in the race was not done in bad faith and blame should not be placed on any one person, he was not given adequate time to campaign. Without prompt notification to the involved parties, simply placing Merksick’s name on the ballot had little effect in giving Merksick a reasonable opportunity to campaign. Article VI, Section 2 (g) of the Uniform Local Union Constitution (“Constitution”) requires a period of at least 15 days between the date of the notice of election and election day to permit an adequate time to campaign.
3. Local 1140 contends that when the IHO received the Merksick protest, the IHO should have issued a formal order requiring Merksick’s name be placed on the ballot, thus ensuring proper notice to all parties. At the time the IHO received Merksick’s protest the issue was moot. Merksick’s name was on the ballot. The IHO sits only as a judicial officer, ruling only on specific complaints. The IHO is not a general election officer overseeing the LIUNA elections. Because there was no issue to resolve, the IHO had no jurisdiction to intercede in Local 1140’s affairs.
4. The 4:30 p.m. cut-off time for dues payment was arbitrary.
5. A goal of free elections is to allow the largest possible number of voters to participate. Fairness requires that all members should have been afforded the opportunity to pay back dues to be eligible to vote.
6. Because only six members were denied the opportunity to vote by this policy, the failure to provide equal opportunity to pay back dues did not affect the outcome of the election.
7. Article VI, Section 1 (c) of the Constitution provides that Judges of Election
“….shall posses all the qualifications required of candidates for office except that they may be retired.” Schafer is unqualified to hold office because of his prior conviction and the application of 29 U.S.C. ' 504 (a).
8. Schafer should not have been a Judge of Election, however, there is no evidence that his vote was crucial to any decision by the Judges of Election.
9. It appears that the Judges of Election did not play a proper role in the election procedure and abandoned their duties to the Business Manager, who was a candidate. While Heavican’s intentions here were well motivated, his actions overrode the role of the Judges of Election. The Judges of Election are to make decisions regarding candidate eligibility and ballot preparation. Heavican should have alerted the Judges of Election to his concerns and directed them to Smith or others for consultation. The Judges did not maintain sole responsibility for the drafting of ballots and the determination of candidate eligibility. The Regional Manager is requested to investigate the role that the Judges of Election played in the nomination and election. If their role is found deficient, the Regional Manager is requested to issue a letter of instruction to all involved, including members of the Executive Committee.
DECISION
The election protest of Merksick is GRANTED. The election for the office of Business Manager/Secretary-Treasurer and Delegate for the District Council shall be rerun. The rerun
election should not include the nomination process.
s/Peter F. Vaira
PETER F. VAIRA
INDEPENDENT
HEARING OFFICER
Date: July 14, 1999
Thomas Merksick (via overnight mail)
Local Union 1140 (via facsimile)
William Henry, Esquire (via facsimile)
Ed Smith, Regional Manager (via facsimile)