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In the Matter of Local 169
The Independent Hearing Officer
Docket No. 99-42P
Decided October 5, 1999
Order and Memorandum
Based upon an investigation conducted by the Independent Hearing Officer ("IHO"), the protest of Howard and Hayes is GRANTED. The election for all officers of Local 169 shall be rerun, under the conditions specified below.
Findings of Fact
1. Local 169 is located in Reno, Nevada.
3. The nomination meeting for the Local 169 mail-in ballot election was held on May 13, 1999.
4. The notice of the upcoming election and the ballots were mailed on or about June 1 or 2, 1999.
5. The ballots were counted on June 19, 1999.
7. Hayes has been a LIUNA member since 1978 and President of Local 169 since 1994. He was an unsuccessful candidate for the position of Business Manager.
8. Dan Rusnak ("Rusnak") was the successful candidate for the position of Business Manager.
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468 In the Matter of Local 169 1999
10. The Local 169 secretaries also act as the dispatchers for the hiring hall.
11. A letter endorsing Iran Rusnak was signed by all three secretaries and
was mailed out in the same envelope as Rusnak's campaign letter.
12. Howard and Hayes allege that the three Local 169 secretaries influenced the election by sending out the letter that endorsed Dan Rusnak for the office of Business Manager. According to Howard and Hayes, certain members of Local 169 were intimidated by the secretaries' endorsement of the opposition slate because the Local 169 secretaries were also the dispatchers who, in effect, control their livelihood.
13. Howard and Hayes allege that there were improprieties in the receipt of undelivered ballots. Because the IHO has ordered a rerun election these allegations need not be discussed.
14. Howard and Hayes allege that Tony Mayorga ("Mayorga"), a candidate on the opposition slate, was in possession of a membership list and was telephoning members to campaign prior to the election. The IHO has found no evidence to support this allegation.
15. Howard and Hayes allege that the Judges of Election failed to inform the watchers as to when the ballots would be mailed and collected, and consequently, there was no oversight at these times. These concerns will be addressed in the rerun election.
16. Hayes alleges that campaign materials distributed by opposition candidates vilified him in violation of the LIUNA Ethical Practices Code. As explained below, the IHO will not address this issue.
17. The IHO appointed James McCarthy, a former United States Postal Inspector, to conduct an onsite investigation into the allegations.
18. The investigation revealed that twelve hundred ballots were mailed out for the election using the Local 169 membership list. At least six ballots were returned as undeliverable. There may have been a larger number, but no exact record was kept. Instead of the undeliverable ballots being returned to a separate post office box, they were returned to the Local 169 office. The Local 169 secretaries then attempted to deliver the ballots. No exact record of these undelivered ballots was kept. Mr. McCarthy obtained the six undeliverable ballots which were in the possession of the office secretaries.
19. The Howard slate sent out 1200 campaign letters using the same Local 169 membership list. Six letters were returned to Howard as undeliverable.
469 In the Matter of Local 169 1999
21. None of the six ballots which were returned to Local 169, nor the six ballots which were returned to the Howard slate, nor the 18 ballots which were returned to McCarthy were identical, even though ostensibly, the same mailing list was used for each mailing.
22. Two of the 18 persons whose test mailings were returned as undeliverable to McCarthy actually voted in the election. At this point, it appears there may be an explanation for this discrepancy. Mr. McCarthy will address the reason for the irregularly prior to the rerun election.
Discussion
The basis of union democracy is the confidence of the membership in the union's democratic procedures. Once there is doubt about the integrity of the procedures, especially with regard to elections, union democracy is eroded. Although the number of returned ballots was small, the inconsistency of the returns casts doubt over the entire process. The IHO will order a rerun election, preceded by a thorough review of the membership list.
As a safeguard, all undeliverable ballots should be returned to a post office box instead of being returned to Local 169. The separate post office box should be opened in the presence of the watchers and Judges of Election. A record should be made of the ballots returned and of any attempts to contact those members whose ballots were not delivered. The post office box for the undeliverable ballots is separate from the one to which the completed ballots are returned. All watchers and Judges of Election should be present when the post office box containing the completed ballots is opened.
The IHO has previously encountered a circumstance in which a union office secretary took part in the election. See In the Matter of Local 92, IHO Order and Memorandum, 98-28P (January 7, 1999). In that matter, Rose Skakun ("Skakun"), the Local 92 office secretary and dispatcher, campaigned vigorously on behalf of one of the candidates. Because of her position as a dispatcher, Skakun was well regarded by members of Local 92.
470 In the Matter of Local 169 1999
... The Convention [which enacted Article 5, Section 4 (c)] 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 Hearings Panel's remarks are especially perceptive regarding dispatchers, who gain popularity and recognition for making job assignments and become the perceived source of employment. In Local 92, the IHO reasoned that 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 office personnel from capitalizing on their credibility by campaigning for other persons.
In this matter, as in Local 92, the office secretaries were also LIUNA members. Although they are prohibited from working at the calling, these secretaries, as in some other LIUNA locals join LIUNA as members. This unique position presents a problem. Although they may not work at the calling and may not run for office, the office personnel rely upon their union membership to campaign, thus giving them a unique opportunity to be influential in union elections. (In some local unions, the office personnel actually belong to another international union which acts as their bargaining agent.) Here the secretaries' endorsement of their bosses was sent out as a campaign flier.
This problem is of the making of the International Union. The International has a policy of discouraging LIUNA membership for office personnel; yet it has done nothing to enforce this policy. Numerous problems result from nonenforcement of this policy as is evident from this protest. The office personnel, who deal daily with the members and in this case, act as their dispatchers, carry much weight with the membership. These office personnel should not be placed in positions of being asked to campaign for their employers, who have the power to fire them. The IHO has condemned this practice as being against LIUNA policy. See In the Matter of Local 92, IHO Order and Memorandum, 98-28P (January 7, 1999).
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In addition to the reasons discussed above regarding the mailing, the IHO will order a rerun election on the basis of the campaign activities of the office personnel. This situation is one that should be addressed by the International Union, and until it is, the IHO will look with disfavor on the practice of office personnel, who are union members, participating in a campaign.
Conclusions
2. The office personnel should not have been permitted to campaign in the election.
3. Regarding the allegations that the opposition vilified Hayes, Title 29 C.F.R. Chapter IV, Subchapter A, Part 452.70 states, "unions may not regulate the contents of campaign literature ... nor may [they] censor the statements of the candidates in any way, even though the statement may include derogatory remarks about other candidates."
4. The truth or falsity of statements made in campaign literature is not reviewed by the IHO. In Re Local 890, IHO Order and Memorandum, 98-38P (October 29, 1998); Musicians Local 153, DOL 70-5925, 77-LM-356 (1977); Electric Workers, (IBEW), Local 107, DOL 52-5900, 75-LM-182 (1975). The membership must determine what weight to give campaign literature.
5. Any remaining allegations are moot in view of the fact that the election shall be rerun.
Decision
Two post office boxes will be utilized for the rerun election, one for the ballot returns, and a separate one for the undeliverable ballots. Mr. McCarthy will retain the keys to the boxes. Both post office boxes will be opened by Mr. McCarthy in the presence of the Judges of Election and the designated watchers.
The office personnel cannot campaign for any candidate in the election, and no candidate may use their statements as an endorsement.
This Order and Memorandum will be mailed to all members prior to the nomination process.