LABORERS' INTERNATIONAL UNION OF NORTH AMERICA

                   SPECIAL ELECTIONS OFFICER

 

 

                Matter of Local 270 (Bob Hill)

                         No. 03-SEO-45

 

 

This matter came before the Special Elections Officer ("SEO") by a written post-election protest from Bob Hill, a Local 270 member and candidate for Business Manager.^[1]/  Mr. Hill alleges a number of instances of misconduct during Local 270's recent election.  For the reasons set forth below, the SEO finds that violations occurred which may have affected the outcome of the election and it therefore must be re-run under supervision.

To investigate this protest, a representative of the Special Elections Officer interviewed the protester, Mr. Hill; the Business Manager of Local 270, Jim Homer; the chief Judge of Election, Joe Gadano; and Local 270's Office Manager, Gloria Ceniceros.  Documents provided by Mr. Hill, Mr. Gadano, and Ms. Ceniceros were reviewed, as were related documents provided by LIUNA.  Prior decisions of the LIUNA Independent Hearing Officer concerning Local 270's last election were also reviewed.

 

                      Factual Background

Local 270 is based in San Jose, California and represents approximately 5,000 laborers in central California.  Pursuant to a variance and tolerance issued by LIUNA General President O'Sullivan, Local 270 recently held a mail-ballot election for local officers.  The Local held its nomination meeting on May 6, 2003.  Ballots were mailed on May 27, to be returned by and counted on June 16, 2003.

All of the elective positions were contested, and candidates ran on three competing slates.  One slate was headed by incumbent Business Manager Jim Homer; one by Bob Hill, who had once served as President of Local 270; and one by Leo Valdez, who was the incumbent President of the Local.  Mr. Hill and Mr. Valdez each ran against Mr. Homer for Business Manager.

Some of these same candidates ran in Local 270's last election, which had to be conducted three times during 1999 and 2000 by orders of the Independent Hearing Officer ("IHO").  See Matter of Local 270, No. 99-53P (Feb. 15, 2001) (describing elections run in December 1999, July 2000, and September 2000).  A mail ballot was also utilized during the last election cycle in which the IHO found, among other things, that Mr. Homer's slate had been allowed unequal opportunity to disseminate campaign material at union expense; that a judge of election had improperly supported the campaign activity of the Homer slate; and that insufficient time had been allowed for campaigning.  See Matter of Local 270, No. 99-53P (IHO, July 20, 2000 and April 19, 2001).

In the third running of the last election, which was ultimately upheld by the IHO, the IHO expressed additional concern at the "lack of appropriate safeguards" in the Local's mail balloting procedures.  The IHO found that "Local 270 utilized a peculiar practice of distributing substitute ballots" to members who had not directly requested them, but rather at the request of Local field representatives.  Approximately eighty replacement ballots had been sent in the final rerun of that election.  The IHO found that "[t]his practice is fraught with danger and raises the suspicion of field representatives campaigning on the [job] site."  The IHO suggested that, in the future, "If a member does not receive a ballot and has the interest to vote, that member should personally request a substitute ballot."  Matter of Local 270, No. 99-53P (Feb. 15, 2001).

In December 2002, five months prior to the election at issue here, Local 270 held its annual Christmas luncheon for retirees.  Approximately 300 people attended.  During that event, Mr. Valdez and others distributed materials criticizing Mr. Homer's handling of a pension issue.^[1]/  Toward the end of the meal, a power outage occurred which prematurely ended the event.  Approximately one month later, on January 24, 2003, Local 270 mailed a letter to some 700 retirees.  That letter, signed by Mr. Homer, referred to Local "270's Triple Holiday Successes."  In addition to the retiree's luncheon, those "successes" were a party for children of Local 270 members and the gift of customized watches to all members.  The letter went on to apologize for the loss of electricity during the December luncheon, and then turned to a criticism of Mr. Valdez:  "The second, unfortunate event was the attempt of Leo Valdez's group to hijack a Christmas event and turn it into a 'political event' as an effort to further his power grab campaign."  Finally,  the letter referred to materials which the Local had intended to hand out at the meeting, and enclosed copies of those documents which included a letter from California Lieutenant Governor Cruz M. Bustamonte and information on health insurance matters.  The attached Bustamonte letter commends the retirees and goes on to specifically praise Mr. Homer as an "effective leader".  The letter from Mr. Homer was sent on Local 270 letterhead using Local 270 funds.

The Local held its nomination meeting on May 6, 2003. Thereafter, a document appearing to be a letter from Mr. Homer to LIUNA General President O'Sullivan was circulated among the Local 270 membership.  Mr. Homer states that the letter is a forgery, and to all appearances that is the case.  The "letter" states that if he is re-elected, Homer intends to substantially increase dues for all Local 270 members, including retirees, and to end a number of programs which benefit retirees.  The letter goes on to state that he wants to keep those plans secret until after the election because he "need[s] the votes" of those constituents.  The "letter" was circulated by the Hill slate along with campaign literature urging members to "get rid of Jim Homer and all of his slate of candidates!"^[1]/

Ballots were mailed on May 27, 2003.  As in the prior election, and despite the admonition of the IHO, the Judges of Election continued the practice of responding to requests by third parties, including some candidates, for distribution of replacement ballots for certain members.  It appears that at least 60 replacement ballots were sent in response to those requests, most of which provided no reason for the request.

In addition, apparently in response to the distribution of the forged letter, the Homer slate actively campaigned to convince members who had already voted to request a second ballot for the purpose of changing their vote.  For example, the Homer slate distributed a sample ballot which had read on one side, "Yes you can change your vote!!  Note if you were lied to (mislead) to make a mistake in who you voted for, you can change your vote.  Call Local 270 and request a new ballot.  Call 408-297-2620."  In addition, Paul Radford, who previously served as Supervisor of Local 270 and who is currently a deputy trustee of LIUNA Local 1082, signed a campaign letter distributed by the Homer slate which stated that "if you have already voted for anyone other than the RIOS-HOMER-ESPARZA slate, please call Local 270 (408) 297-2620 and tell them you want another ballot" (emphasis on original).  Finally, the Homer slate's election committee distributed a letter from Oscar Acosta, Secretary-Treasurer of a Local 270 retirees' organization, urging members that "If ... you have voted for the wrong candidates, call 270 and get a new ballot."  The Judges of Election decided to honor such requests.

All requests for replacement ballots were coordinated in the first instance by Local 270's office manager.  As members called in, or as names were provided by third parties, the office staff obtained identifying information and in many, but not all, instances obtained a statement of the reason for the request.  The office manager's list reflects that several members sought new ballots for the express purpose of changing their vote; the "reasons" provided included "re-vote", "new ballot", and "punched incorrect slate".  Others stated that they lost their ballot or never received it.  However, for the majority no reason is noted, other than "ballots needed".  A review of the records reveals that approximately 60 ballots were sent out in response to requests by third parties who included field representatives, an organizer, one candidate on the Homer slate, and one candidate on the Hill slate.

According to Election Judge Gadano, a total of 212 replacement ballots were sent out, and some 30 duplicate ballots were received -- in other words, thirty people voted twice.  Mr. Gadano advised that the Judges decided to count only the most recently cast of the duplicate ballots, a decision which was endorsed by all of the watchers at the count.

Candidates for the Homer slate won most of the offices for which they ran.  Mr  Homer received 507 votes to Mr. Hill's 400, and Mr. Valdez received 351 votes.  Several positions were decided by a much smaller margin, however.  Vice Presidential candidate Stan Barone won by 31 votes, and the margin of victory for Recording Secretary (which a Hill slate member won) was 22 votes.  The auditor election was decided by only a 13-vote margin.

After the election results were announced, Mr. Hill filed his protest, claiming primarily that the Homer slate used a variety of union assets to support their campaign, including:  mailing the January 2003 letter to retirees; using a union-provided list of telephone numbers to solicit votes; having union employees campaign while on union business at two job sites; and campaigning at the union hall during normal union hours.  Mr. Hill also objects to the Local's decision to send replacement ballots to members for the express purpose of allowing them to change their vote.  Finally, Mr. Hill claims that some 41 ballots which may have been distributed were counted when they should have been excluded from the count.^[1]/

                           Analysis

The issue in a post-election protest such as this is whether any violation of the LIUNA Constitutions or federal law governing union elections occurred and, if so, whether the violation could have affected the outcome of the election.  See Matter of Local 57, 02-SEO-10 (Dec. 2002).

I will first address Mr. Homer's January 2003 letter to Local 270's retirees.  Federal law prohibits the use of union funds to promote the candidacy of any individual running for union election office.  See 29 U.S.C. § 481(g) ("No moneys received by any labor organization by way of dues ... shall be ... applied to promote the candidacy of any person in any [union] election"); 29 C.F.R. § 452.73 ("No such funds may be used for issuing statements involving candidates in the election", other than neutral notices relating to election).  Federal regulations also specifically prohibit a union from "criticiz[ing] [or] ... attack[ing] a candidate in a union-financed publication," 29 C.F.R. § 452.75, and bar "union officers and employees" from using "union funds, facilities, equipment, [or] stationary ... to assist them in ... campaigning," 29 C.F.R. § 452.76.  These prohibitions are also spelled out in no uncertain terms by LIUNA:  "It is unlawful for any candidate to use union resources to support his campaign."  LIUNA, Local Union Officer Elections:  A Guide for Local Union Judges of Election, Officers and Members (April 2003), at 28.  See also Matter of Garcia, 1996 A.O. 105, 105-06 (LIUNA Appellate Officer 1996) (affirming discipline of union officer who "used resources of the Local Union to aid his reelection campaign").

Mr. Homer's January 2003 letter to retirees clearly "criticized" and "attacked" Mr. Valdez's political activity.  In the letter, Mr. Homer describes the "unfortunate ... attempt of Leo Valdez's group to hijack a Christmas event and turn it into a 'political event,'" and as an effort to further his "power grab campaign."  In addition, Mr. Homer's letter was written and distributed using union resources, and sent to approximately 700 retirees at union expense on union letterhead and in union envelopes.

Clearly, had Mr. Homer's letter been sent during the election period itself, it would be deemed campaign material sent at union expense.  See e.g. Reich v. Local 843, 869 F. Supp. 1142, 1148-49 (D. N.J. 1994) (letter critical of candidate sent during election at union expense was improper); Dole v. Drywall Tapers & Finishers Local Union 1976, 733 F. Supp. 864, 867 (D. N.J. 1990) (same).  Here, while Mr. Homer's letter was mailed in late January 2003, over three months before the nominations meeting of Local 270, I nevertheless find under the facts of this case that the "tone, timing and content" of this particular union-financed publication constitutes "campaign" material.  Donovan v. Metropolitan Dist. Council of Carpenters, 797 F.2d 140, 145 (3d Cir. 1986); Herman v. Local 148, 171 L.R.R.M. (BNA) 2554 (C.D. Cal. 2001).  With regard to both "tone" and "content", the January letter is undeniably campaign material because it personally criticizes "Mr Valdez's group" for its "political" activities and "power grab campaign".  With regard to timing, while neither Mr. Homer nor Mr. Valdez were officially candidates for office in January 2003, the evidence is clear that they were already acting as candidates.  Mr. Valdez had distributed literature critical of Mr. Homer on an issue of importance in the campaign, and Mr. Homer's letter challenged Valdez's "political" action.  The mere fact that their actions took place prior to nominations does not preclude a finding that the January letter was campaign-related.  Formal nominations are not a necessary prerequisite to the application of limits on campaigning.  See Guzman v. Local 32B-32J, SEIU, 151 F.3d 86, 89-92 (2d Cir. 1998) (campaign literature paid for by union and distributed to members seven months before election, and before any formal announcements of candidacy, is contrary to 29 U.S.C. § 481(g)); 29 C.F.R. § 452.80 (formal nominations are not necessary to be a "bona fide candidate" eligible for campaign protection of federal law).

The second issue raised by the protest involves the handling of requests for replacement ballots.  Over two hundred such ballots were sent out after the initial mailings of ballots, and approximately 30 individuals returned two ballots to the Local.

As a general matter, it is not improper for a Local Union to provide ballots to members who advise the Local that they did not receive a first ballot, or that their ballot was rendered unusable or "spoiled."  In fact, the Department of Labor recommends that, in a mail ballot election, voters should be expressly advised to make requests for replacement ballots in such cases.  See Department of Labor, Office of Labor Management Standards, "Electing Union Officers By Mail" (available at the Department's website, http://www.dol.gov).^[1]/  The LIUNA Election Officer's Rules likewise provided, in connection with the most recent Delegate and International Officer Elections, that "Any member not receiving a [mail] ballot shall contact the Election Judges immediately if such member wishes a ballot.  The Election Judges shall then immediately send such person a mail-ballot package."  2001 Election Rules, Art. I, Section B7(d); see also Matter of Local 132, No. 99-40P, IHO Order and Memorandum (Nov. 22, 1999) (finding "exemplary" an election procedure in which individuals claiming they had not received a ballot could obtain a replacement by appearing in person at the union hall).

In this case, however, the rule was abused.  Members were sent replacement ballots for any reason or no reason at all as in the case of approximately 60 individuals whose names were submitted by someone other than themselves.  Here the Homer slate actively encouraged people to request a new ballot to "correct" their votes.  Indeed, it is undisputed that 30 people did submit second ballots.

The conduct of this election was fatally flawed for at least two reasons.  First, mailing replacement ballots to members at the request of candidates, field representatives or others was improper.  Second, mailing replacement ballots to members where no reason was given or when the stated reason was to change a vote, are equally violative of LIUNA election rules.  Taken together, this conduct undermined the fairness of this election and exposed the process to possible abuse.  I conclude that Local 270 failed to ensure that the "adequate safeguards" required by Federal law were in place to ensure a free and fair election.  See 29 U.S.C. § 481(c).

It appears clear from all of the evidence of record that the substantial violations of law which occurred here could have affected the outcome of the election.  Mr. Homer's January 2003 letter paid for with union funds was sent to approximately 700 retirees which was well in excess of the margin of victory in any race.  Thus the letter could have affected the outcome by driving down votes for Mr. Valdez and increasing votes for Mr. Homer.  See Reich v. Local 843, 869 F. Supp. 1142 (D. N.J. 1994) (ordering election rerun when 100 to 200 copies of union-financed campaign letters were distributed to members, and mail-ballot election was won by a 52-vote margin).

The manner in which replacement ballots were issued could also have affected the outcome of the election.  At least 60 replacement ballots were sent out at the request of someone other than the member for whom they were intended.  Even assuming that the only impact on the results were as a result of double voting, those 30 votes could have affected the outcome of several of the races.  Accordingly, I conclude that this violation may have also affected the outcome of the election.

In light of these election irregularities, the 2003 election will be set aside in its entirety and must be rerun.  Further, a representative of the International Union shall be requested to serve as a Supervisor of the election to insure an election free of irregularities.  In addition, the Hill and Valdez slates shall each have the opportunity, at union expense, to make one mailing (of an equivalent number of pages or less) to the same retirees who received Mr. Homer's January 2003 letter.  It is further ordered that in the rerun, the Local shall only provide replacement ballots to members who personally request them from a Judge of Election (although such requests may be by phone), and such requests will be granted only to members who state that they did not receive a ballot, lost their ballot, or had the ballot spoiled so as to be unusable.  A complete record shall be kept by the Local of the date, time and reason given for each request.  Requests by third parties for replacement ballots shall be denied and promptly reported to the Supervisor.  Finally, the use of union funds, resources or equipment to campaign is strictly prohibited.

The Local shall report to the SEO within 30 days of this Order of the schedule it has adopted for the rerun.

 

IT IS SO ORDERED, this 13th day of August, 2003.

 

 

 

___________________________________

Joseph Guerrieri, Jr.

LIUNA Special Elections Officer