I will send this by fax as well. Please fax me an up to date version of
the rules at 630-604-4496. I want to appeal the IHO's decision that
LIUNA members can not serve as representatives for other LIUNA members
in election protests.
----- Original Message -----
From: Jim McGough
To: Robert Luskin ; Peter Vaira
Sent: Friday, May 05, 2000 9:21 AM
Subject: Local 5 election protests

Laborers for JUSTICE
James McGough, Director
55 S. Northwest Highway
Palatine, Il 60067
773-878-1002 (tel)
773-409-1503(fax)
 
Re: Mail in balloting for Laborers Local 5 Election (background information
available on The Laborers Network http://www.thelaborers.net
 
 
May 5, 2000
LIUNA Independent Hearing Officer by Fax and email
Attn: Peter Vaira, Esq
 
LIUNA GEB Attorney by fax and email
Attn: Robert Luskin, esq.
 
LIUNA Inspector General by fax
Attn: Douglas Gow
 
U.S. Attorney, Northern Illinois by fax and email
Attn: AUSA David Buvinger, Esq.
 
DOL-OLMS- Chicago Office by fax
Attn: John Peterson
 
Laborers local 5 by fax
Attn: Supervisor Ed Sladowski
 
Dear  Mr. Vaira:
    What follows is my protest on behalf of myself and others similarly situated who demand a mail in ballot as a reasonable accommodation to our right to vote in Laborers local 5 historic  election tentatively scheduled for June 3, in Chicago Heights, Il, a location I can reach via two trains, an el, and two buses in 4 hours during the week when I leave from home or work to exercise my rights as a union member in good standing in Laborers local 5. On Saturday , June 3, 2000 these modes of transportation are not as available as they are during the week. To the best of my knowledge, ownership of reliable automotive transportation is not yet a requirement for voting in union elections. Many laborers, especially those dissidents, (reformers) that are unfairly discriminated against in obtaining work, can not afford this mode of transportation. Many, unlike highly paid investigators, prosecutors, and adjudicators do not have company supplied credit cards to finance the rental and/or operation of vehicles or to call for road service should the vehicle become disabled ( conditions that were prevalent in the rerun of local 423's election but disregarded by OLMS despite my protests).   

Based upon the testimony to be presented in interviews, pertinent documentary evidence and further investigation of election data by the Independent Hearing Officer (“IHO”), McGough's protest concerning the lack of mail in balloting,  the prejudicial impact of limited polling stations and polling hours should be GRANTED.  On the basis of this protest, The supervisor of local 5 should be ordered to petition the LIUNA General President for a variance to permit mail in balloting, a procedure authorized by the members at the April, 2000 local union meeting.  An election for officers of Local 5 should be rescheduled to accommodate the time  required for the mailing and return mailing of ballots which have not yet been printed.

Findings of Fact

1.        The Election is scheduled to be held on June 03, 2000, in approximately four weeks. 

2.        There will be a "rump nomination meeting" on May 12, 2000 to provide an opportunity for nominations for those members who did not receive  prominent notice of the last nomination meeting" according to the Supervisor's statements at the May 1, 2000 meeting. The protestor has received no notice of  any order issued by the IHO in response to his protest nor did the protestor participate in any "in camera" discussions between the IHO and Supervisor of local 5 regarding the arrangements for this "rump nomination meeting" as publicly revealed by the Supervisor at the May 1, 2000 local union meeting. The protestor strongly objects to the IHO holding "in camera" phone discussions with only one party to a protest and not including the protesting party and /or his duly authorized representative.

3.       The protest was based on lack of prominent notice of the nomination meeting,  the failure to include all officers/delegates up for election, the failure to nominate and elect delegates to the district council in accordance with all the constitutional provisions dealing with qualifications, nominations and elections of officers of Local Unions (Art. VI, section 4, subsection (b) ULUC), the failure to request a variance to provide for mail in balloting as authorized by membership vote and promised the protestor by the supervisor.

4.        McGough in his Election protest contends that Local 05 members will be denied a reasonable opportunity to vote in the Election due to lack of mail in balloting provisions, a provision he was led to believe based on the April 2000 authorization vote would occur.

5.        The Election is scheduled to be held on Saturday, June 03, 2000, a possible working day for some, at a single polling station in Chicago Heights, Il, which is to be open from 7:00 a.m. until 7:00 p.m. 

6.        There are approximately (1200) twelve hundred  members in local 5, many of whom, like the protestor, live more than 30 miles from the polling station. Others, like the protestor, will be working.  Others might very well be in the military . Some might be sick or injured. All. however, are entitled to vote and to receive reasonable accommodations for the exercise of this fundamental right.

7.        Local 5 has not had a contested election in 40 years.

8.        Local 5 has been under the control and influence of organized crime at least for 40 years due to the utter failure, in the past, of Organized Crime Task Forces, other governmental agencies, and union members to aggressively prosecute corruption in labor unions. The novel, ingenious, practical and aggressive LIUNA reform effort as now constitutionally mandated and staffed by attorneys/individuals of integrity in the Offices of Independent Hearing Officer, LIUNA Appellate Officer, LIUNA GEB Attorney and LIUNA Inspector General is a welcome antidote to these past failures.

9.        Historically, elections for Local 5 prior to the onset of Supervision have  been uncontested, undemocratic, un-free, unfair,- all allegations the protestor has been making since 1987 to the Chicago Office of the Department of Labor, Office of Inspector General , Department of Labor Racketeering, a fact publicly revealed inadvertently in 1996 when the IHO disregarded the protestor's request to keep grand jury secrets secret. (Protestor revealed that James DiForti would be arrested and/or indicted for the 1987 murder of the "Pallet Man" and that protestor wanted to replace him as a delegate to the International Convention when this arrest occurred). DiForti was arrested in July 1997 and resigned his office as secretary-treasurer of local 5, a position he assumed unconstitutionally in 1994 on orders of organized crime and was permitted to retain despite numerous requests by protestor in 1996 to the GEB Attorney that he be removed and that those executive board members responsible for his appointment be charged with breach of fiduciary duty, some of whom are now candidates for office.

10.     The eligible voting members of Local 5 live and work over an extended geographical area.

11.     Numerous members are located as far away as a four-hour trip by train, bus, or cab  from Chicago heights, Il  One should not be required to own a car in order to be able to vote, an unreasonable, unconstitutional requirement.

12.     Numerous other members are scattered throughout the counties of Cook, Will, DuPage and Lake at considerable distance from Chicago Heights. Some live out of state and can not afford plane fare.

13.     Under the foregoing facts a presumption arises that the polling arrangements effectively will disenfranchise numerous members who will be unable to reach the polling station. 

14.     The decision to not obtain a variance by the Supervisor is clearly against the wishes of the members who voted to authorize mail in ballots at the April meeting, giving the supervisor ample time to make the request. In April 2000, the protestor even went so far as to request by fax that the supervisor obtain free of charge from the International the well reasoned, fundamentally sound decisions of the LIUNA Independent Hearing Officer so that the supervisor and the members could share the one meager set of decisions the International makes available as part of its continuing conspiracy to keep members in the dark about their rights and responsibilities as union members.

16.     McGough, (pronounced like McGoff) additionally alleges that the International   deliberately was delinquent in providing Election guides to LIUNA locals so members would not know about their rights under the LMRDA, is delinquent in not providing either on LIUNA's web site or in booklet form an up to date copy of LIUNA's constitution that includes in one book the constitution and all amendments thereto. In providing DOL-OLMS a copy of its constitution as required by law, LIUNA did not, in 1996, 1997, 1998, and 1999  include the Ethics and Disciplinary Procedure . Nor did it publish the financial accounting in the Laborer's Magazine on a timely basis, another complaint made to the GEB attorney by the protestor that has not yet been completely remedied.

17.     McGough further alleges that LIUNA vice president Terrance Healy has breached his fiduciary duty to provide an adequate supply of constitutions to local 5 despite numerous requests by the supervisor for constitutions.

18.     Finally, McGough further alleges that the International criminally wastes money paying convicted felon Arthur A. Coia for services he legally can not perform when this money would be better spent printing up to date versions of LIUNA's constitutions on paper or/on Cd-roms. McGough contends that all past issues of the Laborers magazine as well as the constitutions and all the paper bound information contained in LIUNA's docket could easily be provided by the protestor or anyone competent in computer technology for a cost of $5 per Cd-roms or DVD.   

 

A free and democratic election is guaranteed by the LIUNA Ethical Practices Code (“EPC”) and Section 401(e) of the Labor Management Reporting and Disclosure Act (“LMRDA”), 29 U.S.C. sec. 481(e).  One basic tenet of a free and democratic election is that all members be given a reasonable opportunity to vote in an election. 

Unions have a degree of discretion in the way their elections are run.  Thus, a review must be made of the voting arrangements actually employed by the local union, in light of the particular circumstances of the local, to determine whether members have been given a reasonable opportunity to vote.  Donovan v. Local 41, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, 598 F. Supp. 710, 712-713 (W.D.Mo. 1984).  In interpreting Section 481(e), courts have stated that the question is whether the voting arrangements offered by the local union are so lacking in democratic principles that the effect is to deny union members a reasonable opportunity to vote.  See Hodgson v. Local Union 582, 350 F.Supp. 16, 19 (C.D.Cal. 1982), and Donovan at 713.  Factors to be considered in determining the reasonableness of the voting arrangements include: the distance union members must travel to vote, the voting methods available to the local union, the voting methods actually used by the local union, and the voting methods utilized by the local union in the past.  Donovan at 717.  In Donovan, the court held that the use of only one polling site, a great distance from any employer, the fact that multiple voting sites had been utilized in the past, and the fact that mail balloting was available to the local union, were all factors that proved that union members had not been given a reasonable opportunity to vote. Id.  at 716-717.

In the following factual circumstances, the Department of Labor determined that union members were denied a reasonable opportunity to vote: where the polls were open only two and one half hours after members’ normal working hours and some members worked from sixty to one hundred and twenty-five miles from the polling station, See Hodgson v. Carpenters Local 2287, Office of Labor Management Standards (“OLMS”) No. 63-5616-7 (1970); where only one polling station was provided for union members employed throughout the entire state of Massachusetts, See Marshall v. Service Employees, Local 254, OLMS No. 31-11024 (1977); where many members were unable to vote because polling hours conflicted with work schedules, See Postal Workers v. McAllen Local, OLMS No. 63-5616-7 (1975).

In the instant case, the polling arrangements in the Election effectively will deny Local 5 members a reasonable opportunity to vote.  The eligible voting members of Local 5 live and work over an extended geographical area.  Numerous members are located as far away as a four-hour drive by car from Chicago Heights, Il  Numerous other members are scattered throughout the counties of Cook, DuPage, Will and Lake at considerable driving distance from Chicago Heights, IL  On these facts a presumption arises that the polling arrangements effectively will disenfranchise numerous members who were unable to reach the polling station following the completion of their workday. 

It is unclear why Local 5 has neglected to obtain a variance for mail in balloting.  I am certainly aware that some local unions are under financial constraints but that is not the case in local 5. I can appreciate that the Supervisor  may have felt that the provisioning for mail in ballots could not be competently handled by present judges of election.  There are limitations, however, to the extent that such constraints may be permitted to affect free and fair elections.  There is certainly no evidence in this case of any impropriety of motivation or intent to disenfranchise in any decision by the Supervisor to limit polling to a single location.  He simply has been too busy and does not, the protestor contends, have adequate competent help. However, unreasonable limitation of voter access cannot be permitted, no matter how well intended and no matter that the provisional officers of local 5 running for election do not want a large voter turnout, less their elections chances be jeopardized. 

If cost is a factor, which it is not, mail balloting is a desirable alternative to pursue in the election in a local union of roughly ( 1200) twelve hundred  members located over a wide geographical area.  The Supervisor must be ordered by the IHO to petition the General President for permission to hold a mail-in election.  The General President has the ultimate authority on this issue.

Conclusions

1.        The Election will not afford all members of Local 5 a reasonable opportunity to vote.

2.        The rationale and historical precedent for use of a single polling station at Chicago heights, Il is not persuasive. In view of the local's systemic control by organized crime which all should be familiar with, the use of mail in ballots to encourage the greatest participation is absolutely essential.

3.        Multiple polling stations need not  be used to accommodate the geographic distribution of the members.

4.        A mail ballot is available upon petition to the General President.

5.        McGough's other grounds for protest of the Election, namely the disallowance by the IHO of members serving as duly authorized representatives of other members in the filing of election protests will be appealed to the LIUNA Appellate Officer and if necessary to OLMS.

Decision requested

The Protest of McGough is GRANTED.  The Supervisor will be ordered to obtain a variance for mail in balloting and/or the LIUNA general President will be ordered to grant the variance.

James McGough
Member in good standing LU 5