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Office of Labor-Management Standards
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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
June 28, 2011

Dear
and

This Statement of Reasons is in response to your January 21, 2011 complaint filed with
the United States Department of Labor (Department) alleging that violations of Title IV
of the Labor-Management Reporting and Disclosure Act of 1959 (LMRDA), 29 U.S.C. §§
481 – 484, occurred in connection with the election of officers conducted by the
Committee for Fair and Equal Representation (CFER) on December 18, 2010.

The Department conducted an investigation of your allegation. As a result of the
investigation, the Department has concluded that no violation occurred which may
have affected the outcome of the election.

You alleged that the union failed to provide you with a mailing list that only included
members in good standing. The investigation revealed that the union constitution
allowed all candidates to request a copy of the “union membership list,” not a list of
members in good standing. The LMRDA does not give union members a right to a list
of eligible members. The LMRDA provides candidates for union office the right to
inspect the union membership list once within 30 days of the election. 29 U.S.C. §
481(c).

The LMRDA does not require that the list of members available for inspection be one
that includes only eligible members. Here, the investigation revealed that the union
provided you with the “union membership list.” It provided you with the same list that
it provided to other candidates and the same list used by the union for mailing the
ballots. With respect to access to the list of union members for campaign purposes, the
LMRDA requires that the union refrain from discrimination among candidates and
requires that a union comply with a candidate’s reasonable request to distribute


campaign literature. 29 U.S.C. § 481(c). A union discriminates among candidates with
respect to a list of members if the union provides any candidate with a more accurate
list than it provides to other candidates. The union can not be said to have denied a
reasonable request for the mailing list that contained only members in good standing as
no such list existed. The union is not required to create a list in order to comply with
campaign literature distribution requests. The Department determined that your slate
was treated no differently than the incumbent slate or the election committee and the
union did not violate the LMRDA when it denied your request to create a new
membership mailing list.

In a related allegation, you asserted that the union failed to obtain an updated list of
members 14 days prior to mailing the ballots, as required by the union’s bylaws.
Section 401(e) of the LMRDA requires that unions must conduct election in accordance
with the constitution and bylaws. Article 1(C) of the CFER Bylaws requires that the
union contact all employers holding contracts with CFER to request updated employee
lists 14 days prior to mailing the ballots. The Department’s investigation determined
that the union made such a request to each employer 23 days before the ballots were
mailed, and received the updated employee lists from the employers 18 days prior to
mailing the ballots. There was no violation.

You also alleged that the union failed to follow its bylaws by improperly permitting
unopposed candidate for Recording Secretary, Reginald Gilbert, to assist the election
committee with the preparation and mailing of the ballots in violation of section 401(e).
Article 1, Section 1(A) of the CFER Bylaws states that if a nominee for office is
unopposed, then the position need not be included on the election ballot. And, while
Article 1, Section 1(B) of the CFER Bylaws prohibits candidates from serving on the
election committee, the Bylaws are silent with respect to officers elected by acclamation.

The Department’s investigation determined that Recording Secretary Gilbert was
elected by acclamation. Gilbert was not a nominee and was not included on the ballot.
Accordingly, Gilbert’s assisting the election committee during the election process did
not violate CFER’s Bylaws and did not violate the LMRDA. Further, there was no
violation of the LMRDA affecting the outcome of the election that was attributable to
Gilbert’s participation in the election.

You also alleged that Election Committee Chair, improperly gave the keys
to the post office box for the returned ballots to Reginald Gilbert in violation of section
401(c) of the Act. Section 401(c) requires, in pertinent part, that a union provide
adequate safeguards to insure a fair election. See also 29 C.F.R. § 452.66. The
Department’s investigation found that rented two post office boxes for the
election, one for voted ballots and one for undeliverable ballots, and that the keys were
issued to King. The application for use of the post office boxes granted access to the
boxes without a key to four election committee members:


and The Department’s investigation revealed no evidence
that gave his keys to anyone, or that Gilbert improperly accessed the post office
boxes. Accordingly, there was no violation of the LMRDA.

You alleged that the Election Committee Chair, concealed the names of the
election committee members who you assert were biased against your slate in violation
of the adequate safeguards provision of section 401(c) of the LMRDA. The
Department’s investigation found that due to work schedules and other conflicts, it was
difficult for the election committee to complete all tasks together. As such, there were
different individuals on the election committee that assisted with certain tasks and not
with others. Although you may not have been provided with the names of all the
election committee members, this is not required by either the bylaws or the LMRDA.
More importantly, there is no evidence that an effort was made to conceal names or that
any election committee member engaged in improper activities during the election
period. There was no violation.

You also alleged that the union counted ballots cast by terminated members and
counted more than one ballot for some members in violation of section 401(c) and
section 401(e) of the LMRDA. Specifically, section 401(e) requires that every member in
good standing shall have the right to vote in the union election.

The Department conducted an extensive review of the election records and found that
the union properly determined the eligibility of terminated members, as no ballot cast
by a terminated member was counted. However, the Department did find that the
union incorrectly declared one member ineligible and incorrectly voided his ballot. The
Department also determined that six member were mailed two ballots because these
members appeared on two employer lists due to recent transfers. Two of these
members returned both ballots, but the union only counted one ballot for each member
at the tally. The Department further determined that the union improperly voided
ballots for three members who recently transferred and did not have a break in dues
payment. These three members were eligible and their ballots should have been
included in the tally.

Finally, the Department’s review of the election records revealed that the union
improperly permitted two additional transfers to vote. These two members transferred
from management back to guard status, but did not resubmit dues authorization cards,
were delinquent in their dues payment, and thus ineligible to vote.

Given these investigative findings, the Department determined that the union violated
section 401(e) of the LMRDA by permitting two ineligible members to vote in the
election and by failing to count the votes of four members in good standing who were
eligible to vote. Thus, these violations may have affected a total of six votes. 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. The smallest margin of
victory in this election was for the office of Vice President at Large, and this office was
decided by 31 votes. Accordingly, these violations would not have affected the
outcome of the election.

You also alleged that the union used conflicting membership lists to check eligibility at
the tally in violation of section 401(c) of the LMRDA. The Department found that
during the election tally, one of the members of the election committee lost his place on
the eligibility list as another election committee member was reading off the names of
voters. The two election committee members briefly stopped this process so that they
could review their work, but once the confusion was resolved the members
immediately proceeded with the eligibility check. The Department’s recount of the
election results disclosed a change of one vote, in favor of the winner, for the position of
Treasurer. This is not a violation of the adequate safeguards provision, and even if it
was, the Department’s recount found that the union’s tally was only incorrect with
respect to one vote and this vote increased the margin of victory of the winning
candidate for Treasurer.

You also alleged that the union failed to follow its bylaws in violation of section 401(e)
of the LMRDA, because members were not informed of their membership status by
mail within 30 days of the election. You were unable to provide the specific bylaw
provision to which you referred to in your protest. The Department reviewed the CFER
Bylaws and determined the union’s bylaws do not contain a requirement that the union
must inform individual members of their membership status by mail within 30 days of
the election. Accordingly, there is no violation of the Act.

In addition to the allegations discussed above, the Department notes that you also
included in your complaint one allegation which was not raised in your internal union
protest, and therefore, is not properly before the Department for investigation.
For the reasons set forth above, it is concluded that no violation of the LMRDA
occurred. Accordingly, the office has closed the file on this matter.

Sincerely,

Patricia Fox
Chief, Division of Enforcement


cc:
Ms. Nancy Wnuk, President
Committee for Fair and Equal Representation
7323 S. Whipple
Chicago, IL 60629
Beverly Dankowitz
Acting Associate Solicitor
Civil Rights and Labor-Management