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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 6, 2011

Dear

This Statement of Reasons is in response to your November 8, 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 June 12, 2010 election of union
officers held by Local Union 429 of the International Brotherhood of Electrical Workers
AFL-CIO.
The Department of Labor conducted an investigation of each of your allegations. As a
result of the investigation, the Department has concluded that no violation of the
LMRDA occurred that could have affected the outcome of the election.

You alleged that the prepaid ballot return envelopes provided to the members by Local
429 had insufficient postage, which may have prevented some of the voted ballots from
being delivered to the union and counted. Section 401(c) of the LMRDA provides that
unions must provide adequate safeguards to ensure a fair election.

The Department’s investigation found that the election judge, was
notified of the insufficient postage and contacted the U.S. Postal Service, which
informed him that their policy was to deliver the ballots to Local 429’s post office box
and then charge the union for any insufficient postage. The investigation revealed that
Local 429 was charged $148.72 for insufficient postage on 326 ballot return envelopes
that were delivered. There were nine ballots delivered after the deadline, but there was
no indication that their delivery had been delayed due to insufficient postage. The
Department’s investigation found no evidence that members did not vote or that ballots
were not received and counted due to the insufficient prepaid postage. Providing
return envelopes with insufficient postage was a violation of Local 429’s duty to
provide adequate safeguards to ensure a fair election. However, Section 402(c) of the


LMRDA, 29 U.S.C. § 481(c), provides that an election will not be set aside unless a
violation may have affected the outcome of the election. Here, the violation had no
effect on the outcome of the election.

You alleged that ballots were voided because they were not returned in secret ballot
envelopes due to the small size of the envelopes. Article 3, Section 4(g) of Local 429’s
bylaws requires the use of secret ballot envelopes. The instructions mailed with each
ballot clearly stated that the ballot must be placed in the secret ballot envelope and that
a failure to do so would cause the ballot to be voided.

The investigation revealed that a total of 15 ballots were voided for not being returned
in the secret ballot envelopes and 2 ballots were voided for being cut. The Department
interviewed several members whose ballots were disqualified because they were not in
the secret ballot envelopes. None of the members interviewed recalled any difficulty
trying to fit their ballots in the secret ballot envelopes. The Department’s investigation
found no evidence that members were deterred from voting due to difficulty fitting the
ballot in the secret ballot envelope. There was no violation of the LMRDA.

You alleged that the incumbent business manager used the union postage meter to mail
campaign material. Section 401(g) of the LMRDA prohibits the use of union or
employer funds to promote the candidacy of any person.

The investigation revealed that Local 429 informed all candidates that they would be
allowed to use the meter and reimburse the union for postage. Only one candidate
used the postage meter to send a campaign mailing, and he reimbursed Local 429 for all
postage. No candidate was denied the opportunity to use the meter. No union funds
or equipment were used to promote the candidacy of any person, and all candidates
received the same privileges concerning use of the meter. Therefore, there was no
violation of the LMRDA.

You alleged that Local 429’s election judge printed extra ballots and could not account
for all the ballots. There is no requirement that a particular number of ballots be printed
and, during its investigation, the Department accounted for all the ballots. There was
no violation of the LMRDA.

You also alleged that candidates were not allowed to observe the tally and that you
were unable to have enough observers to effectively observe the ballot tally. You
further alleged that the methods used to tally the ballots were inaccurate and that
candidates were not notified nor given the opportunity to have observers at recounts.


Section 401(c) of the LMRDA requires adequate safeguards to ensure fair elections and
provides that candidates have the right to have an observer at the polls and at the
counting of the ballots. Article 3, Section 4(l) of Local 429’s bylaws provides that “[a]ny
candidate for office may be present or have an IBEW member as an observer present at
the counting of the ballots.” The election judge violated Local 429’s bylaws when he
prohibited candidates from observing the ballot tally. This violation of Local 429’s
bylaws constitutes a violation of Section 401(e) of the LMRDA.

Additionally, a few minutes before the ballot tally started, you were informed that
ballots would be counted at three tables instead of two tables. Although the election
judge might have allowed you to have more than one observer at the tally, you stated
that you could not find more observers at the last minute.

During its investigation, the Department interviewed several of the observers present at
the tally who said it was difficult to follow the counting at three tables simultaneously.
This failure to provide observers with a satisfactory view of the ballot counting was a
violation of Section 401(c) of the LMRDA.

Your final allegations were that Local 429 used an inadequate method for counting the
ballots and failed to notify you and allow observers at a recount (of the tally sheets, not
the actual ballots). Local 429’s recount of its tally sheets resulted in a different
candidate being declared the winner of the sixth executive board position than was
previously announced. The inaccurate adding of the tally sheets and failure to allow
observers at the recount of the tally sheets were violations of Sections 401(c) and (e) of
the LMRDA.

However, none of the violations relating to observers or the adding of the tally sheets
had an effect on the outcome of the election. Local 429’s failure to properly count the
ballots was remedied by its subsequent recount (adding) of the tally sheets and
declaring the election of the correct candidates. The violations concerning observers
had no effect on the outcome of the election because the Department recounted all the
ballots and confirmed that Local 429 named the correct candidates elected for each
office.

During the course of its investigation, the Department discovered that Local 429
required observers to sign-in, but did not preserve the sign-in sheet. Section 401(e) of
the LMRDA requires that all election records be preserved for one year. Although a
sign-in sheet is not required by the LMRDA, once such a record is created the union
must maintain it with the rest of its election records. Local 429’s failure to maintain the


observer sign-in sheet is a violation of Section 401(e) of the LMRDA, but the violation
had no affect on the outcome of the election.

For the reasons set forth above, the Department of Labor has concluded that no
violation of the LMRDA occurred that may have affected the outcome of the election.
Accordingly, the office has closed the file on this matter.

Sincerely,

Patricia Fox
Chief, Division of Enforcement

cc:
Edwin D. Hill, International President
International Brotherhood of Electrical Workers
900 Seventh Street, N.W.
Washington, DC 20001
Michael Bearden, President
IBEW Local 429
2001 Elm Hill Pike
Nashville, Tennessee 37210

Beverly Dankowitz, Acting Associate Solicitor


U.S. Department of Labor
Office of Labor-Management Standards
Division of Enforcement
Washington, DC 20210
(202) 693-0143 Fax: (202) 693-1343
June 6, 2011

Dear

This Statement of Reasons is in response to your November 12, 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 June 12, 2010 election of union
officers held by Local Union 429 of the International Brotherhood of Electrical Workers
AFL-CIO.
The Department of Labor conducted an investigation of each of your allegations. As a
result of the investigation, the Department has concluded that no violation of the
LMRDA occurred that could have affected the outcome of the June 12, 2010 election.

You alleged that the prepaid ballot return envelopes provided to the members by Local
429 had insufficient postage, which may have prevented some of the voted ballots from
being delivered to the union and counted. Section 401(c) of the LMRDA provides that
unions must provide adequate safeguards to ensure a fair election.

The Department’s investigation found that the election judge, was
notified of the insufficient postage and contacted the U.S. Postal Service, which
informed him that their policy was to deliver the ballots to Local 429’s post office box
and then charge the union for any insufficient postage. The investigation revealed that
Local 429 was charged $148.72 for insufficient postage on 326 ballot return envelopes
that were delivered. There were nine ballots delivered after the deadline, but there was
no indication that their delivery had been delayed due to insufficient postage. The
Department’s investigation found no evidence that members did not vote or that ballots
were not received and counted due to the insufficient prepaid postage. Providing
return envelopes with insufficient postage was a violation of Local 429’s duty to
provide adequate safeguards to ensure a fair election. However, Section 402(c) of the


LMRDA, 29 U.S.C. § 481(c), provides that an election will not be set aside unless a
violation may have affected the outcome of the election. Here, the violation had no
effect on the outcome of the election.

You alleged that ballots were voided because they were not returned in the secret ballot
envelopes due to the small size of the envelopes. Article 3, Section 4(g) of Local 429’s
bylaws requires the use of secret ballot envelopes. The instructions mailed with each
ballot clearly stated that the ballot must be placed in the secret ballot envelope and that
a failure to do so would cause the ballot to be voided.

The investigation revealed that a total of 15 ballots were voided for not being returned
in the secret ballot envelopes and 2 ballots were voided for being cut. The Department
interviewed several members whose ballots were disqualified because they were not in
the secret ballot envelopes. None of the members interviewed recalled any difficulty
trying to fit their ballots in the secret ballot envelopes. The Department’s investigation
found no evidence that members were deterred from voting due to difficulty fitting the
ballot in the secret ballot envelope. There was no violation of the LMRDA.

You alleged that the incumbent business manager used the union postage meter to mail
campaign material. Section 401(g) of the LMRDA, 29 U.S.C. § 481(g), prohibits the use
of union or employer funds to promote the candidacy of any person.

The investigation revealed that Local 429 informed all candidates that they would be
allowed to use the meter and reimburse the union for postage. Only one candidate
used the postage meter to send a campaign mailing, and he reimbursed Local 429 for all
postage. No candidate was denied the opportunity to use the meter. No union funds
or equipment were used to promote the candidacy of any person, and all candidates
received the same privileges concerning use of the meter. Therefore, there was no
violation of the LMRDA.

You alleged that Local 429’s election judge printed extra ballots and could not account
for all the ballots. There is no requirement that a particular number of ballots be printed
and, during its investigation, the Department accounted for all the ballots. There was
no violation of the LMRDA.

You also alleged that candidates were not allowed to observe the tally and that you
were unable to have enough observers to effectively observe the ballot tally. You
further alleged that the methods used to tally the ballots were inaccurate and that
candidates were not notified nor given the opportunity to have observers at recounts.


Section 401(c) of the LMRDA requires adequate safeguards to ensure fair elections and
provides that candidates have the right to have an observer at the polls and at the
counting of the ballots. Article 3, Section 4(l) of Local 429’s bylaws provides that “[a]ny
candidate for office may be present or have an IBEW member as an observer present at
the counting of the ballots.” The election judge violated Local 429’s bylaws when he
prohibited candidates from observing the ballot tally. This violation of Local 429’s
bylaws constitutes a violation of Section 401(e) of the LMRDA.

Additionally, a few minutes before the ballot tally started, you were informed that
ballots would be counted at three tables instead of two tables. Although the election
judge might have allowed you to have more than one observer at the tally, you stated
that you could not find more observers at the last minute.

During its investigation, the Department interviewed several of the observers present at
the tally who said it was difficult to follow the counting at three tables simultaneously.
This failure to provide observers with a satisfactory view of the ballot counting was a
violation of Section 401(c) of the LMRDA.

Your final allegations were that Local 429 used an inadequate method for counting the
ballots and failed to notify you and allow observers at a recount (of the tally sheets, not
the actual ballots). Local 429’s recount of its tally sheets resulted in a different
candidate being declared the winner of the sixth executive board position than was
previously announced. The inaccurate adding of the tally sheets and failure to allow
observers at the recount of the tally sheets were violations of Sections 401(c) and (e) of
the LMRDA.

However, none of the violations relating to observers or the adding of the tally sheets
had an effect on the outcome of the election. Local 429’s failure to properly count the
ballots was remedied by its subsequent recount (adding) of the tally sheets and
declaring the election of the correct candidates. The violations concerning observers
had no effect on the outcome of the election because the Department recounted all off
the ballots and confirmed that Local 429 named the correct candidates elected for each
office.

During the course of its investigation, the Department discovered that Local 429
required observers to sign-in, but did not preserve the sign-in sheet. Section 401(e) of
the LMRDA requires that all election records be preserved for one year. Although a
sign-in sheet is not required by the LMRDA, once such a record is created the union
must maintain it with the rest of its election records. Local 429’s failure to maintain the
observer sign-in sheet is a violation of Section 401(e) of the LMRDA, but the violation
had no affect on the outcome of the election.


For the reasons set forth above, the Department of Labor has concluded that no
violation of the LMRDA occurred that may have affected the outcome of the election.
Accordingly, the office has closed the file on this matter.

Sincerely,

Patricia Fox
Chief, Division of Enforcement

cc:
Edwin D. Hill, International President
International Brotherhood of Electrical Workers
900 Seventh Street, N.W.
Washington, DC 20001
Michael Bearden, President
IBEW Local 429
2001 Elm Hill Pike
Nashville, Tennessee 37210

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