OFFICE OF THE INDEPENDENT HEARING OFFICER
IN THE MATTER OF |
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DOCKET NO. |
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LOCAL UNION 98 BILLINGS, MONTANA |
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99-43P |
ORDER AND MEMORANDUM
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This Order and Memorandum addresses the election protest filed by Lawrence Brennan (“Brennan”) regarding the election of officers of the Laborers’ International Union of North America (“LIUNA”) Local Union 98 (“Local 98”) in Billings, Montana on June 29, 1999.
Based upon an investigation conducted by the Independent Hearing Officer (“IHO”) the protest of Brennan is DENIED. During the investigation, the IHO discovered improprieties outside the scope of Brennan’s protest requiring the election for Delegate to the District Council to be re-run.
FINDINGS OF FACT
1. Brennan is a member in good standing in Local 98.
2. Local 98 held a mail-in election on June 29, 1999.
3. Brennan was a candidate for the office of Business Manager/Secretary-Treasurer.
4. Greg Cantwell (“Cantwell”) and Dave Schick (“Schick”) were candidates for Business Manager/Secretary-Treasurer, Ron Sims (“Sims”) was a candidate for President and Al Downer (“Downer”) was a candidate for Sergeant at Arms.
5. Brennan protested the nominations of Cantwell and Schick on the ground that they were not eligible candidates. Brennan alleged that Cantwell was not current in the payment of his dues and that Schick had not been working at the calling for a year prior to the election. Brennan protested that Sims was not current in the payment of his dues and that Downer was not properly nominated.
6. Article XII, Section 8 of the Uniform Local Union Constitution (“Constitution”) requires that all nomination protests must be made prior to the election. The IHO may hear an untimely nomination protest if good cause is shown by the protestor.
7. All Brennan’s nomination protests are untimely. There is no showing of good cause why the time restrictions should be waived, and there was no evidence in the record that these individuals were not qualified to run.
8. Brennan protests that his name was misspelled on the ballot. He was listed as Laurence “Pinky” Brennan rather than Lawrence “Pinky” Brennan. The IHO finds that this minor misspelling of his first name did not prevent voters from identifying him, especially as his nickname was listed on the ballot.
9. Brennan protested that the Judges of Election (“Judges”) failed to follow Article VI, Section 2 (g) of the Constitution which requires that the names of candidates appear on the ballot in the same order in which they were nominated.
10. The order of nominations for Business Manager/Secretary-Treasurer was Schick, Brennan and Cantwell.
11. The candidates appeared on the ballot in the following order: Cantwell, Schick, Brennan.
12. Brennan received 29 votes; Schick received 39 votes; the winner, Cantwell, received 99 votes.
Local Union Officer Elections are required to be in person. The General President must give permission to hold a mail in election. In the Matter of Local 310, IHO Order and Memorandum, 96-02P (May 21, 1996)(explaining that the decision to utilize a mail-in ballot is an executive decision within the discretion of the International President).
13. In a letter dated April 8, 1999, Local 98 requested the Regional Manager, Chuck Barnes (“Barnes”), aid the local in obtaining a variance from the International Union in order to hold a mail-in election.
14. In a letter dated May 4, 1999, Barnes, on behalf of Local 98, requested such a variance from General President Coia.
15. President Coia’s office has no record of receiving such a request.
16. Local 98 conducted the mail-in election without authorization.
17. Barnes has requested that President Coia issue Local 98 the variance nunc pro tunc.
18. Local 98 has been granted this variance in the past and the IHO has no reason to believe this variance will not be granted in the instant case.
Consolidation of Offices
19. In 1997 the offices of Business Manager and Secretary-Treasurer were consolidated after the resignation of the Secretary-Treasurer.
20. Pursuant to Article IV, Section 2 of the Constitution, the consolidation of offices must be approved by the General President prior to nomination.
21. Permission for consolidation was properly obtained in 1997.
22. Local 98 did not request authorization to consolidate the offices from General President Coia prior to the 1999 nominations.
23. Barnes has requested that President Coia grant Local 98 authorization for the consolidation of Business Manager and Secretary Treasurer nunc pro tunc.
24. Because the authorization to consolidate the two offices has been granted in the past, the IHO has no reason to believe that authorization will not be granted.
Election of Delegates to the District Council
25. The person who is elected the Business Manager/Secretary Treasurer, also serves as a Delegate to the District Council. Article IV, Section 4 E (11), of the Constitution. As stated above, Brennan was a candidate for Business Manager/Secretary Treasurer.
26. Brennan was also candidate for the separate elected position of Delegate to the District Council.
27. Sue Kaiser (“Kaiser”), Gary Stinchfield (“Stinchfield”) and Alberia Foster (“Foster”) were also candidates for the elected position of Delegate to the District Council.
28. A member of LIUNA may not run for or hold two elected Local Union offices at the same time. See Article VI, Section 1(g) of the Constitution; In the Matter of LIUNA Local 837, IHO Order and Memorandum, 95-08P (June 28, 1995). The exception to that rule is that a member may run for or hold a local union office and a position as Delegate for District Council. See In the Matter of Local 762, IHO Order and Memorandum, 97-47P (January 27, 1998); Policy Letter of General President Angelo Fosco, to Local Union 81, February 7, 1991.
29. In this election, by running for Business Manager/Secretary-Treasurer and for the separate position of Delegate to the District Council, Brennan was on the ballot for two separate positions as a Delegate to the District Council. Brennan’s double candidacy for Delegate to District Council amounts to running for two offices in violation of Article VI, Section 1(g). See Policy Letter of General President Angelo Fosco, to David Strang, Judge of Election, Local 597, May 16, 1989. Had he won the Business Manager/Secretary-Treasurer position and the Delegate to District Council position, one of those offices would have had to have been forfeited. This would have required the Executive Board to fill the spot by appointment or rerun election. Union elections are designed to fill vacancies, not produce contingencies.
30. The results of the race for Business Manager/Secretary Treasurer were as follows: Cantwell, 99 votes, Schick, 39 votes, and Brennan, 29 votes.
31. The results of the race for Delegate to District Council were as follows: Kaiser, 66 votes, Brennan, 40 votes, Stinchfield, 31 votes, and Foster, 25 votes.
CONCLUSIONS
1. Brennan’s protests regarding nominations were untimely and will not be considered.
2. The misspelling of Brennan’s first name on the ballot could not have affected the outcome of the election in the instant case. Brennan’s first name was still recognizable. Moreover, Brennan’s nickname, by which he is known, was included on the ballot.
3. Title 29 CFR 452.112 permits a union to determine a candidate’s ballot position in any reasonable manner permitted by its constitution or bylaws, consistent with the requirement of fairness.
DISCUSSION
Article VI, Section 2(g), of the Constitution, requires that the candidates be listed on the ballot in the order in which they were nominated. This particular method has at times been the subject of protest, on the grounds that it favors the incumbents. The incumbent President is in charge of the nomination meeting, and can first recognize those persons who will nominate the incumbent officers. There are certainly better methods to determine ballot position. In state and federal elections, ballot position is generally determined by lot. See Pennsylvania Statute 25 P.S. '2875. Because the procedure in LIUNA is fixed by the Constitution, any attack on the procedure must demonstrate that Article VI, Section 2(g) violates the fundamental fairness requirement of 29 CFR 452.112 on its face or the application of the procedure to the particular fact situation demonstrates a violation of the fundamental fairness requirement. There is no evidence of such a violation presented here.
As indicated in the Findings of Fact, pursuant to Article VI, Section 2(g) of the Constitution, Cantwell, the incumbent candidate for Business Manager, should have been in the third ballot position. The Judges arbitrarily chose to give him first ballot position.
Whether made in bad faith or inadvertently, such a decision to deviate from the constitutional requirement has the appearance of impropriety. Decisions of this nature tend to damage the membership’s perception of the integrity of the election. Once this perception of election integrity is impaired, the membership tends to lose faith in the union democratic process.
The IHO must determine if the improper ballot position of Cantwell could have affected the outcome of the election. The election results were: Cantwell, 99 votes, Schick, 39 votes, and Brennan, 29 votes. If correct nomination procedures were followed Schick would have had the first ballot position, Brennan the second, and Cantwell the last.
Although the practice followed in this case is improper, and would tend to erode the respect for the fairness of the procedure, it would be pure speculation to conclude that had Schick held the first ballot position, he would have received 31 of the votes cast for Cantwell, which would have made him the winner.
4. The improper ballot position of Cantwell could not have affected the outcome of the election.
5. Local 98’s failure to obtain a variance for its mail-in election was not due to bad faith and has been requested nunc pro tunc.
6. Local 98’s failure to receive authorization to consolidate Business Manager and Secretary-Treasurer was not due to bad faith and has been requested nunc pro tunc.
DISCUSSION
As stated in Finding of Fact 29, supra, Brennan’s candidacy for Business Manager/Secretary-Treasurer and for the separate seat as Delegate to the District Council was in violation of Article VI, Section 1(g), of the Constitution. By improperly running for two offices, Brennan potentially affected both races. Technically both races could be examined to determine if the invalid candidate could have affected the outcome of each race. The IHO holds that to examine the outcome of both races would give a wider effect to problem than necessary to solve it.
The Article VI, Section 1(g), of the Constitution requires the nominations to take place in a certain prescribed order: President, Vice President, Recording Secretary, Secretary-Treasurer, Business Manager-Delegate, Sergeant-at-Arms, Auditor (3), Executive Board Members. Although Delegate to District Council is not listed in Article VI, Section 1(g), it is the pattern and practice within LIUNA locals, that nominations for Delegate to District Council always follow the nominations for the offices listed in Article VI, Section 1(g).
The IHO holds that where a candidate improperly runs for two offices, the race in which the individual was first nominated will be deemed to be a proper nomination, unless it is otherwise shown to be defective. Only the race in which the second nomination played a part will be examined to see if the improper nomination could have affected the outcome.
7. Brennan’s candidacy could have affected the outcome of the race for Delegate to District Council. The race results were: Kaiser, 66 votes, Brennan, 40 votes, Stinchfield, 31 votes, Foster, 25 votes. Stinchfield lost by less than the 40 votes received by Brennan. Thirty-six of Brennan’s votes, if cast for Stinchfield would have altered the race.
DECISION
The protest of Brennan is DENIED. The election for Delegate to District Council will be rerun. Brennan is barred from being a candidate in that race.
A
copy of this decision shall be sent by U.S. mail to all members of Local 98 in
good standing by the most economical method.
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SIGNED |
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PETER F. VAIRA |
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INDEPENDENT HEARING OFFICER |
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Date: August 25, 1999 |
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Lawrence Brennan Local Union 98 |
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