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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 23, 2011

This Statement of Reasons is in response to your complaint filed with the Department of
Labor on January 10, 2011. In the complaint, you alleged that Title IV of the Labor-
Management Reporting and Disclosure Act of 1959 (LMRDA), 29 U.S.C. §§ 481-484, was
violated in connection with the election of union officers conducted on August 25, 2010,
by the International Union of Operating Engineers, Local 132.

The Department of Labor conducted an investigation of your allegations. As a result of
the investigation, the Department concluded that there was no violation that may have
affected the outcome of the election.

You alleged that the International improperly applied its candidate qualification
requirement of continuous employment “at the trade” when it permitted William
Lemley to run for president, because Lemley had worked as a “boss.”

The International Union’s Constitution, at Article 24 (1)(b), provides: “No member shall
be eligible for election, be elected nor hold office who has not during the year . . .
immediately prior to the month of nominations, been continuously employed at the
trade, or who has not actively sought continuous employment at the trade.” Section
401(e) of the LMRDA requires that a union conduct its elections in accordance with its
own constitution and bylaws. 29 U.S.C. § 481(e). A union’s interpretation of its own
governing documents is entitled to deference so long as it is “fair and reasonable.”
Reich v. Int’l Alliance of Theatrical Stage Emps. & Moving Picture Mach.Operators, 32 F.3d
512, 515 (11th Cir. 1994).

Election Chairman of Local 132 consulted the General Counsel of the
International on the application of the working at the trade requirement when you


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raised questions regarding Lemley’s eligibility. At the time of the inquiry, the General
Counsel agreed with Local 132’s determination that Lemley was working at the trade
because Lemley’s position was not considered a permanent supervisory position, he
was working under the collective bargaining agreement (CBA), and the company was
contributing on Lemley’s behalf to the union pension fund. The General Executive
Board of the International later denied your election appeal in its entirety, thereby
affirming Local 132’s determination that Lemley qualified as working at the trade.

The investigation disclosed that the International considers at least four factors to
determine whether a candidate meets the working at the trade requirement: (1)
Whether the candidate is covered by the CBA, rather than salaried; (2) Whether the
candidate has contributions made into the union’s fringe benefit funds by the
Employer; (3) Whether the candidate is primarily engaged in operating equipment,
rather than exercising managerial or supervisory authority; and (4) If the candidate is
not currently engaged in work at the trade, whether there are indications that the
candidate is seeking work at the trade.

The investigation further revealed that the International’s affirmation of Local 132’s
Local 132 provided documentation showing determination was fair and reasonable.
that Lemley’s employer made fringe benefit contributions on his behalf.
provided documentation that Lemley was a dues-paying member of the bargaining
Local 132 also

unit. The first two factors therefore weighed strongly in favor of finding that Lemley
was working at the trade. Lemley performed some supervisory functions, but these
functions were within the scope of bargaining unit activity governed by the Operating
Engineers’ pipeline agreement. The third factor therefore weighed somewhat against
finding that Lemley was working at the trade, but not strongly. The fourth factor—
whether the candidate sought work at the trade—is not relevant to Lemley’s situation
because Lemley was either working or paid waiting time to return to the same work.
On balance, the determination that Lemley was working at the trade was therefore
reasonable. There was no violation.

You alleged that the election was compromised because of a personal relationship
between and Tommy Plymale. was the Certified Public
Accountant whose firm, , assisted with the election. Tommy Plymale
was the winning candidate for Business Manager.

Section 401(c) of the LMRDA contains a general mandate that adequate safeguards to
ensure a fair election shall be provided. Included among those safeguards is a general
rule of fairness, which encompasses the requirement that candidates be treated equally.
29 C.F.R. § 452.110. This general rule of fairness does not, however, prohibit a union


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from hiring an outside balloting company to oversee its officer election. Nor does the
LMRDA prohibit a union from hiring the accounting firm that audits its finances to also
oversee balloting for its officer election. You did not identify any specific instances of
partisan or biased actions by or any employees of his firm; nor did the

investigation reveal any. There was no violation.
You alleged that the election was compromised because Local 132’s Dispatcher,
, may have used a mail box key from a prior election to remove ballots from the
P.O. box for election returns prior to the tally.
The investigation disclosed no evidence of the alleged tampering. It is the policy of the
United States Postal Service (USPS) to change the locks on a P.O. box when a box is
closed and to issue two new keys when a P.O. box is rented. Prior to the election,
Election Chairman rented two new P.O. boxes and received two keys for each
box. kept one key for each box and gave the other set to accountant

could not have used the old key hanging in the union office to open
the P.O. box given the USPS policy of changing the locks after every rental, even if that
key had previously opened the same P.O. box. There was no violation.

You alleged that Tommy Plymale used the Local 132 business phone to campaign. You
learned about the alleged campaigning on September 27, 2010, but you did not raise the
issue in your appeal to the International Union on October 6, 2010. Because you failed
to exhaust your remedies with the union, the Department cannot consider this
allegation.

Finally, you alleged that a campaign letter sent by retiring Business Manager

to the membership of Local 132 was misleading and inaccurate. Even if your
allegations were true, ’s actions would not constitute a violation of the LMRDA
because unions have no role in approving the content of campaign materials under the
LMRDA. Section 401(c) requires unions to honor all reasonable requests of bona fide
candidates to distribute their campaign literature to union members at candidate
expense, and to refrain from discrimination among candidates in literature distribution.
The LMRDA does not permit, let alone require, the union to evaluate the veracity of the
campaign materials. See 29 C.F.R. § 452.70. There was no violation.


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

Sincerely,

Patricia Fox
Chief, Division of Enforcement

cc:
Vincent J. Giblin, General President
International Union of Operating Engineers
1125 17th Street NW
Washington, DC 20036-4707
Tommy Plymale, Business Manager
Operating Engineers, Local 132
606 Tennessee Avenue
Post Office Box 6770
Charleston, WV 25362-0770

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