U.S. Department of Labor
Office of Labor-Management Standards
Division of Enforcement
Washington, DC 20210
(202) 693-0143 Fax: (202) 693-1343
March 15, 2012
This Statement of Reasons is in response to your October 18, 2011 complaint filed with the Department of Labor alleging that violations of Title IV of the Labor-Management Reporting and Disclosure Act of 1959 (LMRDA) occurred in connection with the election of officers of Local 300 National Postal Mail Handlers Union, conducted on June 16, 2011, by mail ballot.
The Department of Labor conducted an investigation of your allegations. As a result of the investigation, the Department concluded that there were no violations that may have affected the outcome of the election.
You made several allegations concerning your opponent’s use of union and employer resources to promote his candidacy. Specifically, you alleged that the incumbent New York City Branch President, used the local’s publication to promote his candidacy, and that other union resources were used to print and distribute this material to members, including the distribution of these materials by shop stewards on the work floor of the Morgan facility. Section 401(g) of the LMRDA prohibits the use of union funds and employer monies, including its resources and property, to promote any person’s candidacy. Courts consider the tone, content and timing of a publication when determining whether it constitutes campaign material. With respect to content, section 401(g) prohibits any showing of preference by a union or its officers to criticize or praise any candidate. 29 C.F.R. § 452.75.
The investigation disclosed that prior to the June 16, 2011 election, the local issued two editions of , one dated April 22, 2011, and the other dated May 3, 2011, both printed on union letterhead and reproduced with union equipment. A review of the April 22, 2011 edition showed that it concerned local negotiations with the employer to stop the involuntary transfer or excessing of members from the Morgan General Mail Facility which comprises the New York City Branch. The May 3, 2011 edition informed members that the local’s negotiations were successful in stopping any member from being involuntarily transferred or excessed from the NYC Branch. This information was newsworthy to Morgan members. The tone of the two editions was informative. Although the two issues were published one and two months prior to the election, the investigation disclosed that the local published on a regular basis and distributed it in the same fashion as in the instant case. Neither issue mentioned the election, or attacked or praised any candidate for election. The two publications at issue did not constitute campaign material. Because this material did not constitute campaign material, its distribution by and shop stewards did not constitute an improper use of union or employer funds to campaign. There was no violation.
You alleged that used a union computer’s data base to access members’ email addresses, thereby gaining an unfair campaigning advantage over you. You provided the Department with a copy of a campaign email that you alleged was sent by to a NYC Branch member. Section 401(c) of the LMRDA mandates that unions refrain from discrimination in favor of or against any candidate with respect to the use of lists of members.
The investigation disclosed that the local’s database of its membership does not include members’ email addresses. The investigation further disclosed that the message you provided appears to be a forwarded text message, not an email, and that the only email address and phone number on the message are yours. The gist of this communication was a solicitation of the reader’s vote in the upcoming election, with a signature of “Willi,” spelled differently than the way in which spells his first name. Given that the local does not maintain a list of members’ email addresses and the evidence you supplied does not support your allegation, there is no basis to conclude that the local discriminated against you in the use of lists of members. There was no violation.
You alleged that the local included in its tally 50 ballots that were not returned in secret ballot envelopes, and that observers could see how those members voted. Section 402(b) of the LMRDA requires that local union elections covered by the statute be held by secret ballot. Section 3(k) of the LMRDA defines “secret ballot” to mean, in relevant part, “the expression by ballot, voting machine, or otherwise . . . of a choice with respect to any election . . . which is cast in such a manner that the person expressing such choice cannot be identified with the choice expressed.”
The investigation disclosed that ballot opening procedures employed by the American Arbitration Association (AAA), the election company hired by the union to conduct the election, prevented anyone from seeing the identity of a voter and the member’s vote when a ballot was returned without a secret ballot envelope. The AAA’s equipment opened the outer and secret ballot envelopes very quickly. The machine opened outer envelopes, from which AAA staff then removed the secret ballot envelopes and ballots that were not in secret ballot envelopes, which were immediately stacked face down. The secret ballot envelopes were then opened by a machine and the ballots were stacked face down. All ballots were then inserted into a tally machine.
The investigation disclosed that for the entire local election there were 56 ballots counted that were not returned in a secret ballot envelope. Two observers who were present at the tally stated that they did not see any ballot returned without it being in a secret ballot envelope. They also said that the tally process, including the opening of the outer and secret ballot envelopes and the stacking of the ballots, moved so rapidly that it would be impossible to identify the voter with how he or she voted if the ballot was not returned in a secret ballot envelope. There was no violation.
You alleged ballots that included multiple markings or employee signatures were nevertheless included in the tally for NYC Branch President, in violation of the secret ballot requirement of section 401(b) of the LMRDA. The Department examined the ballots for identifying markings, and recounted the NYC Branch ballots. One ballot contained the written initials while another ballot was signed “” It is unclear whether these ballots were included in the AAA tally. However, even if they had been included, the violation would not have affected the outcome of the election because the margin of victory for the office of NYC Branch President was 44 votes. There was no violation that may have affected the outcome of the election. 29 C.F.R. § 136(b).
You alleged that stewards told members they would know how members voted, which intimidated some members. The three members you identified as being intimidated by a steward did not substantiate your allegation. Two of them voted, and stated that no steward told them anything about knowing how they would vote. Your third witness chose not to vote because she did not care for any of the candidates. There was no violation.
You alleged that stewards told members to return their voted ballots to the stewards, thereby vitiating the secrecy of the ballot. One member stated that a steward, whom he could not identify, asked him to bring his voted ballot to the steward, but the member told the steward he had already mailed in his ballot. Although stewards should not have asked members for their ballots, there was no ballot secrecy violation of the LMRDA because no member actually gave his or her ballot to a steward. There was no violation.
You alleged that members who transferred from the NYC Branch were nevertheless permitted to vote for NYC Branch President. Section 401(e) of the LMRDA, provides in relevant part that every member in good standing shall be eligible to vote. Only members in good standing of the NYC Branch were eligible to vote for NYC Branch President. Article VI, section 1G, Local 300 Constitution. You named two members who were transferred out of the NYC Branch whom you allege improperly voted.
The investigation disclosed that one of those members did not vote and the other member did vote. With respect to the member that voted, the investigation disclosed that she was transferred out of the local on June 4 which was after ballots were mailed. The local was not notified of this transfer until after the conclusion of the election. It was not unreasonable to count her ballot considering the timing involved. The investigation further disclosed that twenty-seven NYC Branch members voluntarily transferred from the NYC Branch in April 2011, well in advance of the June 16, 2011, election. None of those members was eligible to vote for NYC Branch President. The investigation disclosed, however, that four of those transferees voted in the election of the NYC Branch President. These members were ineligible to vote in that election. In addition, the Department’s investigation disclosed that fourteen other members who were not current in their dues payment were nevertheless permitted to vote in the election. In sum, the ballots of eighteen members who were ineligible to vote were included in the tally. Nevertheless, there was no violation that may have affected the outcome of the election because the margin of victory for office of NYC Branch President was 44 votes.
You alleged that numerous members did not receive a ballot or even a duplicate ballot. You failed to identify any member who did not receive a ballot, but provided the names of three members whom you alleged either did not receive a duplicate ballot or whose ballot was not counted despite having mailed that ballot a week after he received it in the mail.
Section 401(e) of the LMRDA requires locals to, among other things, mail to each of its members at his or her last known home address a notice of the election at least fifteen days prior to the election. Where, as here, the ballot serves also as the election notice, the fifteen-day prior notice applies. 29 C.F.R. § 452.102.
The investigation disclosed that ballots were mailed to all members at their last known home address on May 16, 2011, with a return date of June 16, 2011. The voted ballots were returned by business reply mail to a post office box maintained by the AAA, who controlled the key to the post office box. Of the 5,488 ballots mailed to eligible members, only 48 were returned as undeliverable, eight of which were re-mailed. The number of ballots returned as undeliverable was only .7%, showing that the local’s list of its members’ addresses was updated and accurate. The local fulfilled its obligation under the LMRDA, adhering to time constraints imposed under section 401(e) and mailing the ballots to members at their last known home addresses. The local also had a procedure for members to request a duplicate ballot in the event they did not receive a ballot or spoiled or lost their ballot.
With respect to the local’s duplicate ballot request procedure, the election committee and the AAA coordinated the issuance of such ballots. Notice of the duplicate ballot system was posted at postal facilities shortly after the mailing of the ballot. Members were advised that if they had not received a ballot by May 23, 2011, they were to contact the election judges, who then provided that information to AAA. In turn, the AAA then mailed a duplicate ballot to the requestor. The AAA maintained a list of the names of members who requested a duplicate ballot. A review of the election records disclosed 153 requests for a duplicate ballot. The investigation disclosed that none of the three members you identified made any request for a duplicate ballot; further, the election record showed that they did not vote in the election. The local provided a reasonable duplicate ballot request procedure whose invocation required merely the request for such a ballot. Since the record shows that none of these three members made any request for a duplicate ballot, there was no violation.
You alleged that management campaigned for while members of the local filled out surveys at the Morgan facility. Specifically, you alleged that a Senior Manager of Distribution Operations (MDO) told the membership at the Morgan facility that they should vote for on May 4 and May 5, 2011, prior to the mailing of the ballots. As explained above, the LMRDA prohibits employers from promoting any member’s candidacy.
The investigation disclosed that management hired a company to conduct quarterly surveys in an effort to improve relations with employees and for operations purposes. The surveys were not provided to all Morgan members, but only to those who were randomly selected. The MDO addressed those completing the survey, advising that “excessing” would not occur and thanked for handling the issue. She also told the attendees that although she did not always agree with she applauded his effort on the excessing issue. This did not constitute campaigning as there was no reference to the election and her statement was neutral, in that she acknowledged past issues of contention with but recognized his contribution on this issue, one of vital interest to the membership. There was no violation.
For the reasons set forth above, your administrative complaint to the Department is dismissed, and I have closed the file in this matter.
Chief, Division of Enforcement
cc: Mr. John F. Hegarty, National President
National Postal Mail Handlers
1101 Connecticut Avenue, NW, Suite 500
Washington, DC 20036
Mr. Paul Hogrogian, President
Mail Handlers Local 300
111 John Street, Suite 710
New York, New York 10038
Christopher B. Wilkinson, Associate Solicitor
Civil Rights and Labor-Management Division