Dated: September 27, 2000
Local 81
John Burch
Harry Lemanski
Thomas Pancini
Richard Johnson
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IN THE MATTER OF
DOCKET NO. 00-29P
LOCAL UNION 81
VALPARAISO, IN
ORDER AND MEMORANDUM
This Order and Memorandum
deals with the election protest filed by John Burch
and Harry Lemanski, of the election for officers of Local 81, Valparaiso, Indiana held on
June 3, 2000.
FINDINGS OF FACT
1. Local 81 held its election of officers on June 3, 2000. Members from two
slates opposed each other in the election; the Fairness Team headed by Frank Bova, the
incumbent Business Manager, and the New Deal team headed by Tom Pancini. Pancini
was subsequently disqualified from running by the Independent Hearing Officer (IHO)
on the grounds that he was not working at the calling. See In the Matter of Local 81, IHO
Order, Docket No. 00-17P (May
19, 2000) and IHO Order and Memorandum, Docket
No. 00-17P (May 30, 2000).
2. Butch and Lemanski, the protestors, were not candidates, but were active
supporters of the New Deal team. They are members in good standing, and are entitled to
file this protest. All the candidates of the Fairness Team were elected by a two to one
margin.
3. Burch and Lemanski make two allegations regarding the election: that the
Fairness Team distributed campaign literature containing the LIUNA Logo, and that the
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procedure used by Local 81 for
processing and mailing campaign literature unfairly burdened the non incumbents' campaign.
4. The IHO has examined the logo which was printed on the Fairness Team's campaign
literature. The logo used was not the LIUNA logo but a special logo created for campaign
purposes. It contains a drawing of a worker with a jackhammer. It is not similar to the
LIUNA logo. The IHO finds the use of the logo on the literature was not a violation of
the LIUNA election procedure.
(editorial comment The logo used was LU81's
local logo not the International Logo. What the hell is the difference-either
one implies official union endorsement)
5. Title 29 U.S. Code Section 481(c) provides that a local union must comply with all reasonable requests of candidates to mail the candidates' campaign literature at the candidates' expense. The local union is required to give all candidates equal treatment with regard to the expenses charged and conditions of mailing. The requirements for mailings set by the local union must not be an unreasonable burden on tine candidates' ability to mail.
6. In the June election Local 81 required all campaign mailings to be processed and mailed on Sundays. It gave as its reason that the Local 81 office was too small and too busy to handle the processing dining the week. (Editorial comment-The office was not too small or too busy for incumbent mailings)
7. The processing was accomplished by the office secretary who printed the labels containing the members' names using a computer. Thereafter, the candidates and their supporters affixed the labels and the stamps on the envelopes. The office secretary observed the process. After affixing labels and the stamps, the candidates took the letters to the post office accompanied by the office secretary.
8. Local 81 charged all candidates double the hourly wage of its office secretary who oversaw the operation on Sunday. The officer secretary's time also included the time
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he spent accompanying the candidates to the post office to mail the literature. Local 81
contended that it was necessary to have the office secretary observe the affixing of the
labels, and to accompany the candidates to mail the letters, to protect the integrity
of the membership lists. (Editorial comment: The
incumbents did not ask the office secretary to accompany them. When the cat's
away, the mice and the rats play)
9. The members of the Fairness Team consisting of the incumbents, also paid the double hourly rate for their mailings, however they did not pay the office secretary for accompanying them to the post office. On two occasions, the incumbents did not mail their literature on Sunday, but waited until later. They contend that they interpreted their own Sunday regulation as permitting a later mailing by the incumbents.
10. The incumbents were informed by Bobbi West of the Department of Labor Office in Chicago that the Sunday date was permissible. Ms. West informed the incumbents and Pancini, that a candidate could request in writing another day for processing and mailing, instead of Sunday. Ms. West said if the union rejected a reasonable request in writing for another day, then the burden would be on the union to demonstrate why it refused the request.
11. There is evidence that Pancini requested that the processing be accomplished on another day, but later withdrew his request.
12. Frank Bova, the Business Manager, told an investigator for the IHO that the hourly wage for the office secretary is $22.00 plus benefits. All candidates were charged $44.00 per hour for the office secretary's time.
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10/2/00Title 29 U.S.C. 481(c) requires the union to treat all the candidates uniformly, and cannot add excessive costs for mailing or set conditions which would be an unreasonable burden on the campaigns of the candidates.
The Department of Labor informed Local 81 a Sunday mailing would be permissible. The Department of Labor representative told Local 81 that if any candidate objected, the Union would have the burden of demonstrating that denying the request was reasonable. (editorial comment The post office is closed on Sundays)
The approval of the Department of Labor does not end the matter. Regardless of what day was set for the mailing, the union cannot impose conditions on the processing and mailing that would be an unreasonable burden on the candidates' right to mail. The local union has exclusive control over the membership list. The candidates cannot go elsewhere, or get a competing bid for the processing and mailing. The local union cannot use its monopoly to hinder the candidates' right to obtain the membership list, and to make campaign mailings.
Because the local union has the absolute monopoly on the membership list, and access to its publication, the IHO will closely examine all conditions placed on the candidates' right to obtain the labels and the use of them for mailing.
In this instance, Local Union 81 decided that printing and affixing the labels during normal working hours would disrupt the normal operation of the union office. The union set Sunday as the only day available. The union assigned the office secretary to oversee the operation. The union charged the candidates double the hourly wage of the office secretary to oversee the operation, a total of $44.00 per hour.
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Although the local union's normal business must be taken into consideration, the union cannot place unreasonable restrictions on campaign mailings solely on the basis that it is an inconvenience. If that were the test, few campaign mailings would be made in any reasonable time. A local union must efficiently accommodate the mailing process despite some inconvenience. The union chose the Sunday schedule. It cannot penalize the non incumbents for having to use that schedule. The union cannot force the candidates to pay double time to the office secretary, because a mailing during the week would be inconvenient to the union.
The IHO's investigator asked the Local 81 Executive Board why the labels could not have been printed during the week by the office secretary and the affixing of the labels and taking them to the post office on Sunday could have been overseen by a retiree or someone who was not being paid $44.00 per hour. The Local 81 Executive Board members staled that such an arrangement was possible; however, they were concerned that someone responsible should be present at the union office when the labels were being affixed because of concerns for the security of the building. The IHO is not persuaded by this response. The local union certainly can find a responsible member to observe the candidates and their associates applying labels to the envelopes, and to accompany the candidates to the post office at less than $44.00 per hour. If Local 81 cannot make such an arrangement, it must absorb the cost, as the union chose the Sunday schedule. See in the Matter of Local 270, II IHO Order and Memorandum, Docket No. 9953P (April 19, 2000), where the IHO struck down a local union requirement that the task of affixing the labels was required to be done by retirees at a cost of $200, where in the past the candidates and their supporters affixed the labels on their own.
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Although the incumbents paid the same hourly rate as the protestors, the required use of the office secretary, at double his hourly rate, to print the labels, to observe the candidates as they applied the labels , and to accompany the candidates to the post office were excessive and unreasonable conditions.
Incumbents cannot use as
a defense that they also follow the same requirements if the conditions imposed are
unreasonable. Even if the incumbents follow the requirements, incumbents generally have an
advantage in the mailing and processing of campaign literature because of their
physical location in the office, their relationship and access to the employees and their easy acess to membership list. In this matter, the
incumbents did not always follow the conditions required of the non incumbents.
The evidence here indicates that the incumbents used the office secretary to process their
own literature on Sunday; however, they did not use the use secretary to accompany them to
the post office. The incumbents took their literature to the post office on days other the Sunday on two occasions, and mailed it whenever it was convenient.
Thus, the non incumbents were charged $44.00 per hour for the ride to the post office, while the incumbents were not. The fact that the incumbents could
elect to mail at a time that was of their choosing,
while the
non incumbents were required
to mail on Sunday at an extra
expense,
is a distinct advantage
to the incumbents, and a burden on the mailing
opportunity
of the non incumbents. Under some circumstances, such an advantage might be grounds to
rerun the election.
(Editorial comments: What
other outrageous circumstances besides those outlined here are necessary before
the IHO wakes up and smells the coffee if not the stench of corruption)
It appears that the mailing process was a lucrative arrangement for the office
secretary. On some Sundays he collected fees from both the incumbents
and the non
incumbents, a total of eight
hours for being present for four hours. (Editorial
comment: Is the IHO going to report this double billing? this theft? this
fraudulent practice?)
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CONCLUSIONS
1. The Sunday mailing requirement was reasonable only insofar as the Local 81 office could not accommodate all candidates and others at one time during working hours. The Department of Labor did not give the Local 81 permission to impose unreasonable charges or requirements that were to the advantage of the incumbents.
2. There were other arrangements that could have been made which would not have required the office secretary to be on site on Sunday observing persons affixing labels or accompanying them to the post office at $44.00 per hour. The labels containing the membership list could have been printed during the week by the office secretary. His assistance was necessary only for the computer run. The labels could have been affixed on Sunday under the observation of any trusted member or other trusted person at a reasonable cost.
3. The use of the office secretary to observe the candidates axing these labels and
accompanying them to the post office at $44.00 per hour was an unreasonable burden on the
candidates' ability to mail their literature.
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4. The fact that the incumbents did not always mail their literature on Sunday is an example of the non uniformity of this rule.
5. The ability of the incumbents to mail on other than Sunday gave them the advantage to select a mailing date, an advantage the non incumbents did not have.
6. The protestors made seven mailings. They lost by a margin of approximately two to one. The excess charges, although they were a burden, did not affect the outcome of the election. Despite this finding, the IHO will not permit a local union to impose unnecessary burdens on campaign mailings. It is a practice with dangerous implications.
DECISION
Local 81 is ordered to repay the protestors the amounts charged for the time of the office
secretary, except the reasonable amount for his time in printing the labels. That time,
however, will be charged at his normal hourly rate, not double his hourly rate, as that
task could have been accomplished during the week.
Although the incumbents originated the arrangement with the office secretary, they
paid him the same amount out of their own campaign Rinds. In LIUNA all candidates should
receive equal treatment. Local 8l is ordered to repay the incumbents for the excess
charges under the same conditions as the protestors.
Any disputes between the protestors and Local 81 regarding these costs will first be
presented to Investigator Richard Johnson, a former IRS agent, who will examine the costs
for reasonableness. Local 81 will pay Richard Johnson's reasonable hourly rate for any
time spent in this effort.
Richard Johnson is to determine if the protestors made Local 81 aware of their bulk
mailing predicament. If Richard Johnson finds that they did, he should report the
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10/2/00All other allegations raised by the protestors are DENIED.
Dated: September 27, 2000
Local 81
John Burch
Harry Lemanski
Thomas Pancini
Richard Johnson
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