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Office of Labor-Management Standards (OLMS)

U.S. Department of Labor
Office of Labor-Management Standards
Division of Enforcement
Washington, DC 20210
(202) 693-0143 Fax: (202) 693-1343

April 15, 2011

Dear

This Statement of Reasons is in response to your November 18, 2010 complaint filed
with the United States Department of Labor alleging that violations of Title IV of the
Labor-Management Reporting and Disclosure Act of 1959, as amended (LMRDA), 29

U.S.C. §§ 481 – 484, occurred in connection with the election of officers conducted by the
Laborers’ International Union of North America (LIUNA) Local 1191 on June 23, 2010.
The Department conducted an investigation of your allegations. As a result of the
investigation, the Department has concluded, with respect to each of your specific
allegations, that no violation occurred which may have affected the outcome of the
election.

You alleged that incumbent officer used union telephone lists to call Local
1191 members to campaign for the in violation of section 401(g) of the
LMRDA. Section 401(g) prohibits the use of union funds to promote any candidate for
union office. The Department’s investigation determined that made 29 phone
calls to the residences of Local 1191 members from his home phone around the time of
the election, using a list of members’ phone numbers gained either in his official
capacity as a union officer or from the union’s records. Because more than one Local
1191 member lives at certain of these residences, 29 numbers corresponded to 31
individual members of Local 1191. Accordingly, the Department determined that
Pulice may have campaigned to a maximum of 31 Local 1191 members in violation of
section 401(g).

However, section 402(c)(2) of the LMRDA provides that an election will only be
overturned where a violation may have affected the outcome of the election. Since only
31 members may have received campaign phone calls and the smallest margin of
victory was 133 votes, the violation did not affect the outcome of the election.


Page 2 of 7

You also alleged that incumbent officer while using a union vehicle,
visited the Marathon refinery while on union time in order to distribute campaign
stickers for the , in violation of section 401(g) of the LMRDA. Campaigning
by an incumbent officer, while on union time and while using a union-owned vehicle is
prohibited. The Department investigated this allegation, interviewing those union
members that you alleged witnessed s campaigning. However, none of these
witnesses or others interviewed by the Department substantiated your allegation.
Accordingly, there was no violation.

Similarly, you alleged that incumbent officer

campaigned for the
by distributing Local 1191 stickers at the Zug Island worksite, during work hours

and while driving a union vehicle. Specifically, you allege that gave Local 1191
stickers to Steward Dave Counts and that Counts told approximately 30 members at
Zug Island that they could have the new Local 1191 stickers only if they used the
stickers to cover-up the opposition slate stickers. The Local 1191 stickers were not
campaign material. The Department’s investigation disclosed one member who
indicated that he was told by Counts that he could only have the Local 1191 sticker if he
covered his opposition slate sticker, which he refused to do. Counts denies that this
conversation occurred. However, even if the conversation occurred and constituted
improper campaigning, there would be no effect on the outcome of the election.

You alleged that your boss, incumbent Business Manager , directed you
to purchase televisions and other electronics to be used as Brothers’ Club raffle prizes
and that you then complied with this request while you were on work hours and while
using a union vehicle. The Department’s investigation revealed that you purchased
these televisions and other items prior to the Labor Day picnic in September 2009. The
Department determined that at the time you purchased these items it was not clear that
the raffle prizes or proceeds from the sale of the raffle tickets would be used to
contribute to the campaign. The Department’s investigation disclosed that

” had not yet been formed and
at the time you purchased these items, the “
there was no campaigning involved with the Brothers’ Club raffle. Consequently, your
use of a union vehicle and union time does not constitute a violation of section 401(g)
because there is insufficient evidence that the raffle prizes were intended to promote
any particular candidate at the time you made the purchases.

In a closely related allegation, it was asserted that , who was a candidate for
Business Manager in the 2010 election, used Brothers’ Club funds raised through the
raffle ticket sales to support the campaign in violation of section 401(g).
Specifically, it was alleged that Local 1191 officers and business agents were required to
work during the union’s Labor Day picnic, and were instructed to sell Brothers’ Club
raffle tickets while working at the picnic. It was stated that prior to the picnic,


Page 3 of 7

told the business agents to sell these raffle tickets and that the proceeds would help
support his election campaign.

The Department’s investigation confirmed that funds from the Brothers’ Club were
used to promote the during the election period. However, the use of these
funds is not, by itself, a violation of the LMRDA. The Brothers’ Club is a fund
administered by Local 1191 officers and business agents that is funded through officer
and business agent donations and raffle ticket sales.
Since the fund does not constitute “moneys
The Brothers’ Club is not
supported by union money or dues.
received by [a] labor organization,” disbursements from the fund to support the Aaron
Slate campaign did not violate section 401(g).

The Department investigated the allegation that the Brothers’ Club fund should be
considered union resources used in violation of section 401(g) because Local 1191
officers and business agents were on union time at the Labor Day picnic and therefore
union resources were used for the raffle ticket sales that contributed to the fund and,
ultimately, to the campaign. The investigation revealed conflicting
evidence regarding whether officers and business agents were required to be at the
But even assuming that officers and business picnic and were thus on union time.

agents were on union time when selling the Brothers’ Club raffle tickets, the sale of
raffle tickets was incidental to the union business of running the picnic. The
Department’s interpretive regulations indicate that campaigning incidental to regular
union business is not a violation of the Act. 29 C.F.R. § 452.76.

Further, the Department found insufficient evidence to support the claim that
instructed officers and business agents to sell the raffle tickets for the purpose of
promoting his campaign. This claim is also undermined by the timing of the picnic, five
months before the was announced and seven months before any funds
from the Brothers’ Club account were disbursed for the campaign.
Accordingly, there was no violation.

You alleged that supervisors working for Ric-man told their Local 1191 employees to
vote for the Section 401(g) prohibits the use of employer funds or
resources to promote any candidate for office. Specifically, you allege that two
individuals working for Ric-man, who you could not identify in any way, told you that
their supervisors instructed them to vote for the in the upcoming election.
The Department interviewed supervisors and employees at Ric-man and found no
information supporting your allegation about supervisors promoting the
There was no violation of the Act.


Page 4 of 7
You also alleged that AAA, the company with which Local 1191 contracted to conduct
the election, failed to follow the union’s constitution and bylaws when it did not use
separate P.O. boxes for properly returned ballots and those returned as
“undeliverable.” Section 401(c) provides, in relevant part, that adequate safeguards to
insure a fair election shall be provided. As such, a union’s wide range of discretion
regarding the conduct of its elections is circumscribed by a general rule of fairness. 29

C.F.R. § 452.110.
The Department’s investigation found that the LIUNA Election Guide recommends that

the union use separate P.O. boxes to receive ballots; however, this is a recommendation,
not a requirement. The LIUNA Constitution and Bylaws also do not mandate that a
local union use separate P.O. boxes during its election. Further, the Department
determined that AAA receives mail daily from the post office in a secured lock-box,
which only AAA and the postal workers may access. There was no violation.

You alleged that Local 1191 failed to provide proper notice of the election and denied
members the right to vote in the election. Section 401(e) requires that every member in
good standing be entitled to vote in elections under Title IV of the LMRDA. Section
401(e) also requires that at least 15 days prior to an election, unions must mail notice of
the election to each member at his or her last known home address. In your complaint,
you questioned whether all members received notice of election or if notice was only
sent to members in good standing. In addition, you alleged that one member,

, received two ballots.

During its review of the election records, the Department determined that notice was
sent to all members, not only to members in good standing. With respect to , the
investigation found that he was issued a duplicate ballot during the course of the
election. Although submitted both ballots for consideration, only s
duplicate ballot was counted. We note that the Department found that, for unknown
reasons, one member was not sent a ballot until June 14, 2010 (less than 15 days prior to
the election). To the extent that there was an administrative error regarding the mailing
list, it would have only affected this one member. There was no violation that may
have affected the outcome of the election.

You next alleged that the union failed to inform you of the ballot preparation process,
failed to provide you with an accounting for all printed ballots, and failed to properly
maintain custody of the ballots prior to the tally. Section 401(c) of the LMRDA
provides, in relevant part, that adequate safeguards to insure a fair election shall be
provided. During the Department’s investigation, you admitted that you never
requested an accounting of all printed ballots and that you voluntarily declined to
witness the ballot preparation and collection. The Department found that members


Page 5 of 7

were permitted to observe the ballot preparation and some members took advantage of
this opportunity to observe. Further, the Department found no areas of concern relating
to AAA securely maintaining custody of the ballots. There were no violations of the
LMRDA.

You alleged that the union did not permit observers to be present when the post office
delivered the return ballots to AAA. Section 401(c) provides, in pertinent part, that
adequate safeguards to insure a fair election shall be provided, including the right of
any candidate to have an observer at the polls and at the counting of the ballots. The
Department’s investigation found that Election Committee (EC) Chief
permitted individuals to meet him at the AAA site in order to observe delivered
returned ballots. While there may have been some miscommunication between EC
Chief and some opposition slate candidates regarding whether witnesses could
observe receipt of the ballots, it does not appear that any member requested and was
denied the opportunity to observe the returned ballots. There was no violation of the
LMRDA.

In a related allegation, you asserted that witnesses were denied the right to observe the
opening of ballots and the voter eligibility check. The right to observe includes the right
to be present at the time that eligibility determinations are made. During the
Department’s investigation, you stated that you no longer believed that ballots were
opened by AAA outside the presence of observers. AAA officials, as well as members
of the Election Committee, denied that any ballots were opened before observers were
present.

But, regarding AAA’s eligibility check, the Department found that AAA determined
eligibility as ballots were received with no observers present. While there is no
evidence establishing that candidates were denied the ability to be present when AAA
received ballots, there was miscommunication between the Election Committee and
some candidates on this issue. Although it is a violation of section 401(c) to deny
candidates the right to observe the eligibility check, the Department’s investigation did
not disclose evidence showing that any candidates requested and were denied access to
AAA for the purpose of observing the eligibility check. Further, there is no evidence
that AAA’s eligibility check was inaccurate. Thus, there was no violation that may have
affected the outcome of the election.

You also alleged that voter secrecy was compromised because ballots that were not
returned in the secret ballot envelopes were counted in the tally. Section 401(b) requires
that local labor organizations hold elections by secret ballot. The Department’s
investigation found that no ballot packages were opened prior to observers being
present; however, ballots not cast in secret ballot envelopes were counted by AAA,
pursuant to the Election Committee’s instructions. The Department’s review of the


Page 6 of 7

election records disclosed that there were 1,066 return ballot envelopes and 1,033 secret
ballot envelopes, leaving 33 ballots not in secret ballot envelopes. Both AAA and the
Election Committee asserted that no one could see how a member voted because the
ballots were immediately separated from the return envelope, folded shut, and mixed
with all other ballots. Despite the fact that ballots not in secret ballot envelopes were
included in the tally, the Department did not find any evidence showing that voter
secrecy was compromised. Accordingly, there was no violation of section 401(b).

You alleged that four employers conspired to have 388 of their employees collect blank
ballots and turn the blank ballots over to the United Slate (one of the opposition slates)
to be voted in the election. You stated that former Business Manager

and complainants
the source of this information.
and (members of the United Slate), were
During the Department’s investigation,
admitting that this was a fabrication. ,
and provided signed statements
, and admitted that they

never collected blank ballots. Further, no United Slate candidate received as many as
388 votes. Since the individuals who provided you with the information that formed
the basis for your allegation admitted that the information was fabricated, and there is
no evidence supporting their original story, there is no violation of the Act.

Finally, you alleged that the Secretary-Treasurer’s position was listed on the ballot as an
ex-officio District Council Delegate without the requisite approval of the union’s
executive board or membership. This issue was protested for the first time in your
complaint to the Department. Since internal union protest procedures were not
properly exhausted, as required by section 402(a), the Department did not investigate
this allegation. See 29 U.S.C. § 482(a).

For the reasons set forth above, it is concluded that there was no violation of the
LMRDA affecting the outcome of the election, and I have closed the file in this matter.

Sincerely,

Patricia Fox
Chief, Division of Enforcement


Page 7 of 7

cc:
Mr. Michael Aaron
Business Manager
Laborers’ International Union of North America
Local 1191
2161 West Grand Boulevard
Detroit, Michigan 48208
Mr. Terence M. O’Sullivan
General President
Laborers’ International Union of North America
905 16th Street, NW
Washington, DC 20006-1765

Beverly Dankowitz
Acting Associate Solicitor
Civil Rights and Labor-Management Division


U.S. Department of Labor
Office of Labor-Management Standards
Division of Enforcement
Washington, DC 20210
(202) 693-0143 Fax: (202) 693-1343
April 15, 2011

Dear Messrs. and
This Statement of Reasons is in response to your November 18, 2010 complaint filed
with the United States Department of Labor alleging that violations of Title IV of the
Labor-Management Reporting and Disclosure Act of 1959, as amended (LMRDA), 29

U.S.C. §§ 481 – 484, occurred in connection with the election of officers conducted by the
Laborers’ International Union of North America (LIUNA) Local 1191 on June 23, 2010.
The Department conducted an investigation of your allegations. As a result of the
investigation, the Department has concluded, with respect to each of your specific
allegations, that no violation occurred which may have affected the outcome of the
election.

You alleged that , who was a candidate for Business Manager in the 2010
election, used Brothers’ Club funds raised through the raffle ticket sales to support the

campaign in violation of section 401(g) of the LMRDA. Section 401(g)
prohibits the use of union funds to promote any candidate for office.
assert that Local 1191 officers and business agents were required to work during the
Specifically, you
union’s Labor Day picnic, and were instructed to sell Brothers’ Club raffle tickets while
working at the picnic. You state that prior to the picnic, Aaron told the business agents
to sell these raffle tickets and that the proceeds would help support his election
campaign.

The Department’s investigation confirmed that funds from the Brother’s Club were
used to promote the during the election period. However, the use of these
funds is not, by itself, a violation of the LMRDA. The Brothers’ Club is a fund
administered by Local 1191 officers and business agents that is funded through officer


Page 2 of 5

and business agent donations and raffle ticket sales. The Brothers’ Club is not
supported by union money or dues. Since the fund does not constitute “moneys
received by [a] labor organization,” disbursements from the fund to support the

campaign did not violate section 401(g).

You assert that the Brothers’ Club fund should be considered union resources used in
violation of section 401(g) because Local 1191 officers and business agents were on
union time at the Labor Day picnic and, therefore, union resources were used for the
raffle ticket sales that contributed to the fund, and ultimately, to the
campaign. The Department’s investigation revealed conflicting evidence regarding
whether officers and business agents were required to be at the picnic and were thus on
union time. But even assuming that the officers and business agents were on union
time when selling the Brothers’ Club raffle tickets, the sale of the raffle tickets was
incidental to the union business of running the picnic. The Department’s interpretive
regulations indicate that campaigning incidental to regular union business is not a
violation of the Act. 29 C.F.R. § 452.76. Further, the Department found insufficient
evidence to support the claim that instructed officers and business agents to sell
the raffle tickets for the purpose of promoting his campaign. This claim is also
undermined by the timing of the picnic, five months before the was
announced and seven months before any funds from the Brothers’ Club were disbursed
for the campaign. Accordingly, there was no violation.

You also alleged that AAA, the company with which Local 1191 contracted to conduct
the election, failed to follow the union’s constitution and bylaws when it did not use
separate P.O. boxes for properly returned ballots and those returned “undeliverable,” in
violation of section 401(c) of the LMRDA. 29 U.S.C. § 481(c). Section 401(c) provides, in
relevant part, that adequate safeguards to insure a fair election shall be provided. As
such, a union’s wide range of discretion regarding the conduct of its elections is
circumscribed by a general rule of fairness. 29 C.F.R. § 452.110. The Department’s
investigation found that the LIUNA Election Guide recommends that the union use
separate P.O. boxes to receive ballots; however, this is a recommendation, not a
requirement. The LIUNA Constitution and Bylaws also do not mandate that a local
union use separate P.O. boxes during its election. Further, the Department determined
that AAA receives mail daily from the post office in a secured lock-box, which only
AAA and the postal workers may access. There was no violation.

You next alleged that AAA and the Election Committee failed to obtain good mailing
addresses for resending ballots that were returned undeliverable in violation of section
401(e) of the LMRDA. 29 U.S.C. § 481(e). Section 401(e) requires that every member in
good standing be entitled to vote in elections under Title IV of the LMRDA. Section
401(e) also requires that at least 15 days prior to an election, unions must mail notice of
the election to each member at his or her last known home address. You have alleged


Page 3 of 5

that AAA and the Election Committee failed to take reasonable steps to correct known
bad addresses once ballots were returned undeliverable. The Department reviewed the
election records and found that 34 ballots were returned undeliverable prior to the tally.
AAA and the Election Committee made efforts to find good addresses for all
undeliverable ballots and were able to successfully resend 12 of the 34 to good
addresses. Accordingly, there was no violation of the Act.

You alleged that the union did not permit observers to be present when the post office
delivered the return ballots to AAA in violation of section 401(c) of the LMRDA. 29

U.S.C. § 481(c). Section 401(c) provides, in pertinent part, that adequate safeguards to
insure a fair election shall be provided, including the right of any candidate to have an
observer at the polls and at the counting of the ballots. The Department’s investigation
found that Election Committee (EC) Chief permitted individuals to meet him at
the AAA site in order to observe delivered returned ballots. While there may have been
some miscommunication between EC Chief and some opposition slate
candidates regarding whether witnesses could observe the ballots, it does not appear
that any member requested and was denied the opportunity to observe the returned
ballots. There was no violation of the LMRDA.
In a related allegation, you asserted that witnesses were denied the right to observe the
opening of ballots and the voter eligibility check in violation of section 401(c) of the
LMRDA. 29 U.S.C. § 481(c). The right to observe includes the right to be present at the
time that eligibility determinations are made. During the Department’s investigation,
you stated that you no longer believed that ballots were opened by AAA outside the
presence of observers. AAA officials, as well as members of the Election Committee,
denied that any ballots were opened before observers were present. But, regarding
AAA’s eligibility check, the Department found that AAA determined eligibility as
ballots were received with no observers present. While there is no evidence
establishing that candidates were denied the ability to be present when AAA received
ballots, there was miscommunication between the Election Committee and some
candidates on this issue. Although it is a violation of section 401(c) to deny candidates
the right to observe the eligibility check, the Department’s investigation did not disclose
evidence showing that any candidates requested and were denied access to AAA for
the purposes of observing the eligibility check. Further, there was no evidence that
AAA’s eligibility check was inaccurate. Thus, there was no violation that may have
affected the outcome of the election.

You also alleged that voter secrecy was compromised in violation of section 401(b) of
the LMRDA because ballots that were not returned in the secret ballot envelopes were
counted in the tally. 29 U.S.C. § 481(b). Section 401(b) requires that local labor
organizations hold elections by secret ballot. The Department’s investigation found that
no ballot packages were opened prior to observers being present; however, ballots not


Page 4 of 5

cast in secret ballot envelopes were counted by AAA, pursuant to the Election
Committee’s instructions. The Department’s review of the election records disclosed
that there were 1,066 return ballot envelopes and 1,033 secret ballot envelopes, leaving
33 ballots not in secret ballot envelopes. Both AAA and the Election Committee
asserted that no one could see how a member voted because the ballots were
immediately separated from the return envelope, folded shut, and mixed with all other
ballots. Despite the fact that ballots not in secret ballot envelopes were included in the
tally, the Department did not find any evidence showing that voter secrecy was
compromised. Accordingly, there was no violation of section 401(b).

You next alleged that you were denied the right to observe the preparation and mailing
of the ballots in violation of section 401(c) of the LMRDA. 29 U.S.C. § 481(c). Section
401(c) provides, in pertinent part, that adequate safeguards to insure a fair election shall
be provided, including the right of any candidate to have an observer at the mailing of
ballots. During the Department’s investigation, you both provided sworn statements
declaring that you were in fact present when the ballot envelopes were stuffed for
mailing. You both stated that you chose to leave early, but were at no point denied the
right to observe the ballot preparation and mailing. There was no violation.

You also alleged that that Election Committee denied at least three of your slate’s
observers access to the tally in violation of section 401(c). Section 401(c) provides, in
pertinent part, that adequate safeguards to insure a fair election shall be provided,
including the right of any candidate to have an observer at the tally. Local 1191’s
Constitution and Bylaws require that if candidates wish to have observers present at the
tally, then the candidate must submit the observer’s name to the Election Committee in
writing by the day of the election tally. See Local 1191 Constitution, Art. VI, Sec. 3(b).
You stated that you were not notified of this provision. The Election Committee
confirmed that this requirement was applied uniformly to all candidates and the
Department found no evidence to dispute the Election Committee. Finally, during the
Department’s investigation, you admitted that the United Slate had numerous
observers present at the tally, such that United Slate observers witnessed all the various
aspects of the tally. The United Slate was not disadvantaged by the denial of three
observers. Accordingly, there is no violation which may have affected the outcome of
the election.

Finally, you alleged that the Secretary-Treasurer position was listed on the ballot as an
ex-officio District Council Delegate without the requisite approval of the union’s
executive board or membership, in violation of section 401(e) of the LMRDA. 29 U.S.C.
§ 481(e). Since internal union protest procedures were not properly exhausted, as
required by section 402(a), the Department did not investigate this allegation. See 29

U.S.C. § 482(a).

Page 5 of 5

For the reasons set forth above, it is concluded that there was no violation of the
LMRDA affecting the outcome of the election, and I have closed the file in this matter.

Sincerely,

Patricia Fox
Chief, Division of Enforcement

cc:
Mr. Michael Aaron
Business Manager
Laborers’ International Union of North America
Local 1191
2161 West Grand Boulevard
Detroit, MI 48208
Mr. Terence M. O’Sullivan
General President
Laborers’ International Union of North America
905 16th Street, NW
Washington, DC 20006-1765

Beverly Dankowitz
Acting Associate Solicitor
Civil Rights and Labor-Management Division