OFFICE OF THE INDEPENDENT HEARING OFFICER
IN THE MATTER OF |
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DOCKET NO. |
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LOCAL UNION 438 ATLANTA, GEORGIA |
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99-32P |
ORDER AND
MEMORANDUM
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This Order and Memorandum addresses the election protest of Grady J. Anthony (“Anthony”) regarding the 1999 election of officers of Laborers’ International Union of North America (“LIUNA”) Local Union 438 (“Local 438”) in Atlanta, Georgia. Anthony’s protest raises the issue of whether Local 438’s failure to comply with the notice requirements of Article VI, Section 2(j) of the Uniform Local Union Constitution (“Constitution”) requires a rerun election.
The Independent Hearing Officer
(“IHO”) requested a briefing of the issue by the LIUNA General Counsel. Based upon the IHO investigation, and after
considering the memorandum supplied by LIUNA General Counsel, the protest of
Anthony is GRANTED. The election will
be rerun.
FINDINGS OF FACT
1. Anthony is a member of Local 438 in good standing.
2. At the May 4, 1999, general membership meeting, the membership of Local 438 voted to hold the election of officers at the Local 438 Union Hall from 7:00 a.m. to 7:00 p.m. on Thursday, May 20, 1999.
3. On May 10, 1999, Local 438 Secretary-Treasurer, Kenneth High (“High”), mailed a notice of election to the members of Local 438 announcing that the election was to be held on Wednesday, May 20, 1999.
4. On May 14, 1999, High mailed a corrected notice of election to the members of Local 438 announcing that the elections were to be held on Thursday, May 20, 1999.
5. Article VI, Section 2 (j), of the Constitution requires that the notice of election must be sent to all the members no less than fifteen (15) days prior to the date of the election.
6. The original notice of election sent by High was ten days prior to the election; the corrected notice sent by High was six days prior to election.
7. High stated that the failure to send a proper timely notice was due to “oversight.”
8. The IHO finds that the delay in mailing the notice was not done in bad faith.
9. The voter turnout for the Local 438 election of officers in 1996 was two hundred and twenty one.
10. The voter turnout for the Local 438 election of officers in 1999 was one hundred and seventy.
11. Presently Local 438 has seven hundred and sixty-seven members.
DISCUSSION
1.
Article VI, Section 2(j) of the Constitutional
requires that notice of the date, time, and location of the election be mailed
to each member at least 15 days in advance of the election. This provision reflects the federal
statutory requirement. See 29
U.S.C. 481(e), 29 CFR 452.97. A notice
requirement directed by federal law must be strictly construed; it is not
advisory. See Donovan v. Graphic Arts Union, 118
LRRM 2093 (C.D. Ill. 1984). It is
essential that union members be given a clear and unequivocal notice in
sufficient time of the date, time, and place of the election. The Department of Labor has consistently
held that less than 15 days notice does not satisfy 29 U.S.C. 481(e). See Postal
Workers, Springfield, Missouri Local, DOL
No. 62-3380, 73-(LM)-59, April 10, 1973;
Ladies Garment Workers, Local 155, DOL No. 30-3660, 72-(LM)-217,
April 20, 1972; Mine Workers,
District 11, DOL No. 50-934,
65-(LM)-230, 1965; Postal Workers,
Springfield, Missouri Local, DOL No. 62-3380, 73-(LM)-59, April 10,
1973; Ladies Garment Workers, Local
155, DOL No. 30-3660, 72-(LM)-217, April 20, 1972; Mine Workers, District 11, DOL No. 50-934, 65-(LM)-230, 1965.
The first notice was mailed ten days prior to the election. It stated that the election was to be held Wednesday, May 20, 1999. May 20th was Thursday. The notice was confusing on its face, and cannot be considered a proper notice.
The second notice which correctly states the day and date of the election was mailed only six days prior to the election, and cannot be considered a timely notice. The two notices cannot be considered together. An election notice must be timely and complete on its face.
Local 438 has suggested that the IHO examine the circumstances of the notice and its good faith in attempting to notify the members. In the case of In Re Local Union 125, Youngstown, Ohio (February 12, 1990), a LIUNA Hearings Panel held that failure to provide the full 15 day notice did not have an effect on the outcome of the election. The Hearings Panel based its decision on the high voter turnout and the fact that the notice was mailed late in order to conform with a DOL requirement that all Judges of Election participate in mailing the ballots. The IHO does not consider the ruling in Local Union 125 persuasive. It is not necessary to decide at this time whether there may be circumstances when the IHO will consider a notice of less than 15 days as harmless. As a general rule, attempts to determine if a notice mailed less than the statutory period affected an election will lead the finder of fact on a slippery slope of hypothetical speculation. Election procedure requires certainty and predictability. Under the facts presented here, Article VI, Section 2(j) will be strictly construed.
The notification is important for other reasons. The lifeblood of a union is its membership participation. Proper election notice is one tool in evaluating that factor. The IHO notes that in 1996, two hundred twenty one members voted and in 1999, one hundred seventy members voted. The Executive Board should not have to speculate if this lower turnout was due to the faulty notice or was due to declining membership interest or other troublesome factors.
CONCLUSIONS
1. The requirement of Article VI, Section 2 (j) of the Constitution will be strictly construed.
2. The good faith of Local 438 does not excuse its failiure to comply with Article VI, Section 2(j).
3. An election notice must stand on its own for accuracy and timeliness. The two notices mailed in this matter cannot be considered together.
4. The IHO will not attempt to determine whether the lack of proper notice in this matter had an effect on the election. Whether such a determination is ever proper under any circumstance is a question that need not be determined in this matter.
5. The failure to give proper notice pursuant to Article VI, Section 2(j) requires a rerun election.
DECISION
The protest of Anthony is GRANTED. The1999 election of officers shall be rerun. The rerun election will not include the nomination process.
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SIGNED
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PETER F. VAIRA |
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INDEPENDENT HEARING OFFICER |
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Date: July 9, 1999 |
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Grady Anthony Local Union 438 Michael Bearse, Esquire James Hale, Regional Manager |
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