IN THE MATTER OF
LOCAL UNION 190
It is the normal practice of the Independent
Hearing Officer ("IHO") to issue a final Order and Memorandum following an election
protest. In this instance, however, although the IHO has made certain proposed
Findings and Conclusions, there remains a question as to the effect that the events
described in Findings and Conclusions may have had the outcome of the election.
The parties are requested to submit objections
and comments to the Proposed Findings and Conclusions attached hereto;
the parties are further requested to submit arguments on the effect the events described
in the Findings and Conclusions had on the outcome of the election.
The parties should file their comments with
the IHO by February 5, 1999.
INDEPENDENT HEARING OFFICER
Date: January 28, 1999
Eugene P. Devine, Esquire
Karen Kimball, Esquire
Joel Howard, Esquire
IN THE MATTER OF
LOCAL UNION 190
DOCKET NO. 98-57P
This Order and Memorandum addresses the Pre-election
Protests and Election Protests (hereinafter the "Protests")
filed by Carmen Francella ("Francella"), Michael Mirabile
("Mirabile"), Michael Mclaine ("Mclaine"),
John Nardolillo ("Nardolillo") and Robert Michel ("Michel")
concerning the nomination and election of officers of the Laborers'
International Union of North America ("LIUNA") Local
Union 190 ("Local 190") in Albany, New York held on
September 30, 1998.
FINDINGS OF FACT
1. Francella was a candidate for Business
Manager, Mirabile, a candidate for President, and Mclaine, a candidate
for Executive Board member. All were unsuccessful.
2. The incumbent officers who successfully
ran against the protestors were Joseph Zappone for Business Manager,
John Nardolillo for President, and Peter Nardolillo and Joseph
Allegra for Executive Board members.
3. Nardolillo's protest regarding Mirabile
is moot and will not be considered, because Nardolillo won and
Mirabile lost the election for President.
4. Michel's protest regarding Mirabile is moot and will not be considering because Mirabile lost the election for President.
5. Article VI of the Uniform Local Union
Constitution ("Constitution") provides for the nomination
and election of officers for LIUNA local unions. Normally nominations
for LIUNA local union officers are to take place in the month
of April or May, with the date of election to be set by the membership
at the May meeting. See Article VI, Section 1 (a) and Section
2(j). Article VI, Section l (a) states that the nomination meeting
". . . shall be held not less than ten days nor more than
twenty days prior to a regular meeting of the Local Union to be
held in the month of May of the election year...."
6. The 1998 Local 190 election of of officers
normally would have been held in May or June of 1998. On April
13, 1998, the IHO rendered a decision in a LIUNA disciplinary
matter holding that Samuel Fresina ("Fresina"), who
was at the time the Business Manager of Local 190, had committed
certain acts in violation of the LIUNA Ethics and Disciplinary
Procedure ("EDP"). On April 21, 1998, General President
Coia stayed the election until 60 days following the decision
of the Appellate Officier in Fresina's case. On July 22, 1998,
the Appellate Officer sustained the IHO's decision. Pursuant to
an agreement with the GEB Attorney, Fresina was precluded from
serving as an officer of Local 190 or any other LIUNA entity until
the year 2000. Zappone was appointed the acting Business Manager
by the Executive Board of Local 190 on or about August 11, 1998.
The Selection of the Date of the Nomination
Meeting and Date of Election
7. On August 18, 1998, General President
Arthur A. Coia lifted the stay of the Local 190 election and permitted
Local 190 to schedule the Nomination Meeting for the election
of officers. General President Coia granted a variance to Article
VI, Section 2(j)) of the Constitution permitting the date of election
to be determined by the Local 190 membership at the close of the
8. Local 190 scheduled the Nomination Meeting
for August 31, 1998 and properly notified the general membership
pursuant to Article VI, Section 1 (b) of the Constitution.
9. On August 21, 1998, Francella, through
his attorney Karen Kimball ("Kimball"), filed a pre-election
protest with the IHO. Francella contended that the Nomination
Meeting was not scheduled in accordance with Article VI, Section
1 (a), of the Constitution. He argued that there is a requirement
that a regular general membership meeting be held after the Nomination
Meeting at which time the membership is to set the date of election.
10. I held a telephone hearing on August
28,1998. Kimball, on behalf of Francella, Local 190's attorney
Eugene Devine ("Devine"), and several members of Local
190's Executive Board attended the hearing. I agreed with Francella's
argument and I gave Local 190 until 5:00 p.m. that day to obtain
an additional variance to Article VI, Section 1 (a) regarding
the regular membership meeting required to be held between the
Nomination Meeting and the date of election officers. Transcript
of August 28, 1998 ("Tr. I") 35-36. See, In the Matter
of Francella, IHO Order 98-57P (August 28, 1988).
11. Pursuant to the August 28 Order, General
President Coia granted an additional variance to Article VI, Section
2(j) stating, "I hereby and explicitly grant a variance and
tolerance as requested to allow the membership at the close of
the nominations at the forthcoming nomination meeting to schedule
the election without the intervention of a regular meeting between
the nomination and the election." Letter of General President
Coia, August 28, 1998. This variance removed the requirement of
a general membership meeting which is constitutionally required
to occur between the Nomination Meeting and the election of officers.
12. On the basis of General President Coia's
variance, I denied Francella's preelection protests without prejudice,
to be raised again after the election. See Francella, IHO Order,
98-57P (August 31,1998).
13. At the completion of the Nomination Meeting,
the members of Local 190 scheduled the election of officers to
be held on September 30, 1998 at the Local 190 union hall on Wemple
Road in Glenmont, New York.
14. Francella contends that the variances
prejudiced him by shortening the campaign period. The granting
of a variance to a Constitutional provision is an executive decision
within the sound discretion of the General President. The IHO
will not examine the granting of a variance unless it can be shown
that the General President abused his discretion or his decision
was contrary to the Constitution or federal law, or the variance
would result in an injustice.
15. Local 190 holds its monthly general membership
meetings on the first Monday of every month. The regularly scheduled
general membership meeting for the month of September was cancelled
because the first Monday was September 7, 1998, the Labor Day
holiday. In the normal sequence, if there had been a general membership
meeting on September 7, 1998, pursuant to Article VI, Section
1 (a), the Nomination Meeting would have been held no sooner than
August 27th. If the general membership met on September 7th and
voted to set the election date within the minimum date permitted
by the Constitution', the election would have been scheduled on
September 22nd This would have given the protestors 24 days from
the date of nomination to the date of the election.
16. The protestors contend that the date
of the election should have been set by the membership at the
next regularly scheduled membership meeting on October 5, 1998.
1 Article VI,, Section 2(j)) provides
that notice of an election should be sent to the members, no less
than 15 days prior to the election.
this sequence, the Nomination Meeting would
have been held no later than September 28, 1998. If the membership,
on October 5, 1998, had voted to set the election within the minimum
time permitted, the date of election would have been October 22,
1998. Thus, the protestors would have been given 24 days to campaign
between the Nomination Meeting and election day.
17. Under the schedule provided by the variances,
the protestors were given from August 31 to September 30, a total
of 31 days to campaign. I find that the variances did not unduly
prejudice Francella's request to a reasonable campaign, and the
General President did not abuse his discretion in granting the
variances. The Scheduling of the Dav. Time and Location of the
18. Francella alleges that scheduling the
election on a Wednesday, a work day, instead of a Saturday, the
day historically chosen by Local 190 for elections, prejudiced
the non-incumbents by prohibiting many of Francella's supporters
from having the opportunity to vote. Francella has offered no
evidence as to how the selection of Wednesday specifically prohibited
his supporters from voting.
19. Local 190 contends the day was chosen
based upon consultation with the business agents who informed
Zappone that a larger percentage of the membership would be able
to attend on Wednesday rather than on Saturday. Local 190 argues
that changing the day of the election to a Wednesday benefited
the membership and actually increased voter turnout. There is
credible evidence that 60 percent of the membership voted on election
day. Francella protested the original hours set for the polls
to be open, between 2 p.m. and 8 p.m. Based on Francella's protest,
I ordered that the polls be open two additional hours, from 12:00
p.m. to 8:00 p.m. See Francella, IHO Order, 98-57P (September
16, 1998). The evidence shows that 30 percent of the members who
voted did so during those two extended hours.
20. I find that there is no evidence that
the scheduling of the election on Wednesday, September 30, deprived
the members a reasonable opportunity to vote.
21. Francella also argues that the location
of the election site should have been at the 890 Third Street
address in downtown Albany, rather than at the Wemple Road union
hall in Glenmont, New York. Local 190 has always held its regular
membership meetings at the Third Street location.
22. The Local 190 union hall has been located
on Wemple Road for five years. All of the daily activities of
Local 190 take place at the union hall. The members regularly
go to the union hall for information regarding work lists, dues
payments, pension benefits or welfare benefits. Local l90's Executive
Board offices are located at the union hall.
23. Article VII, Section I of the Constitution
provides that the membership shall establish the time and place
of its regular meetings. In this particular case, the membership
properly voted and selected the Wemple Road union hall as the
place of election.
24. The Wemple Road union hall is a well
known location and is often used by the Local 190 membership.
There is no evidence that the membership was disadvantaged by
having to vote at the union hall.
25. There was no evidence the Local 190 membership
was denied a reasonable opportunity to vote by the use of the
Wemple Road union hall.
Local 190's Failure to Provide Candidates
with Access to the Membership List
26. Francella alleges he was not provided
with equal access to the Local 190 membership list. He stated
that after numerous requests, he was finally shown the membership
list on September 21, 1998.
27. Title 29 U.S.C. § 481(c)) provides,
"Every bona fide candidate shall have the right, once within
30 days prior to an election of a labor organization in which
he is a candidate, to inspect a list containing the names and
last known addresses of all members of the labor organization.
. ." 29 U.S.C. § 481 (c).
28. In this age of computer technology, when
lists can be generated quickly with little cost, it is disturbing
to see requests for inspection of the membership list become an
29. Francella had been demanding an opportunity
to view the membership list since at least August 21, 1998. To
delay giving him the opportunity to set the list until September
21, 1998 is unreasonable, considering the Nomination Hearing was
August 31, 1998.
Local 190's Failure to Provide Sufficient
Access to an Accurate Job Site List
30. Francella alleges that Local 190 denied
him sufficient access to the list of contractors and job sites
and that the incumbents had greater access to the job site lists
than the non-incumbents.
31. I held a telephone hearing regarding
this matter and other issues on September 16, 1998. Francella
requested a copy of the collective bargaining agreement, or a
list of contractors, so that he might obtain a list of job sites.
Because of Local 190's valid concerns that the candidates contacting
the contractors might be viewed as embroiling contractors in local
union politics, I instead ordered Local 190 to provide a list
of Local 190 job sites to any candidate who requested it. See
Francella, IHO Order, 98-51 P (September 16,1998).
32. Local 190 complied with the IHO's Order,
but Francella did not receive the list of job sites until on or
about September 23,1998, eight days after the IHO's Order and
seven days prior to the election.
33. Furthermore, the list did not state with
any specificity the exact location of any job site. The list was
not adequate, and there was an unreasonable delay in supplying
it, considering the amount of effort required to produce it.
Campaigning on the Job Sites
34. Francella alleges that Local 190's Executive
Board instructed all contractors to prohibit campaigning by anyone
on the job sites and alleges that the stewards were told to immediately
inform the local if any candidate attempted to campaign on their
respective job site. See Francella's Pre-election Protest Letter,
September 6, 1998.
35. Spancrete is a major employer of LIUNA
members and it was in operation at the time of the election campaign.
36. IG Inspector Phillip D. Smith ("Smith")
interviewed Ed Solar ("Solar"), the plant manager at
the Spancrete job site.
37. Solar said he was approached by Mirabile
and asked if he could campaign at the job site during coffee breaks
and at lunch time. Solar explained to Mirabile that he had to
"run it by" Phil Ottaviano, the Laborers' steward. Ottaviano
made a phone call to the union and then told Solar that no one
could campaign on the job site at any time.
38. Solar told Mirabile that he could not
campaign at the site.
39. Mirabile alleges that Local 190's prohibition
did not prevent the incumbent union officers from campaigning
at job sites under the guise of official union business. He alleges
that Zappone and Charles Mirabile were seen campaigning at the
Spancrete job site.
40. Solar told Smith that Zappone and Charles
Mirabile toured the plant with the steward, Ottaviano, but did
not campaign during their visit.
41. Robert Hoffman, a local 190 laborer,
told Smith that Zappone and Charles Mirabile visited the Spancrete
job site while he was working there, spoke with Local 190 members
but did no campaigning and did not ask any member to vote for
them or anyone else.
42. Smith interviewed another laborer at
the Spancrete job site, Anthony Silvano ("Silvano").
Silvano stated that Michael Mirabile passed out campaign literature
at the gate leading into the job site as the laborers left work.
43. I find that there is no evidence that
the incumbent officers campaigned at the job site.
44. I find that Local 190 ordered the contractor
at Sancrete to prohibit the protestors from campaigning at that
45. Local 190 argues that since no one could
campaign at the job sites, no candidate was disadvantaged. I am
unpersuaded by this argument since the rule prohibiting campaigning
on the job sites originated with a decision made by the incumbent
46. A local union may not use its power under
the collective bargaining agreement to cause the contractors to
deny opponents the opportunity to campaign. The decision to permit
campaigning on a job site is to be made by the individual contractors,
and if so, the decision is to apply to all candidates. A unilateral
decision denying all candidates access to the job sites originating
from the local union is a violation of the LIUNA Ethical Practices
Incumbent Officers' Use of Old Union
47. Francella alleges that the incumbent
candidates used union personnel and funds in furtherance of their
campaign by using union letterhead with Fresina's name still on
it identifying him as the Business Manager of Local 190.
48. Francella argues that by using the old
letterhead, Zappone was able to associate his candidacy with Fresina,
the recently removed Business Manager. Local 190 insists that
the use of the old Local 190 letterhead was based solely on economic
considerations. After Fresina's resignation, Zappone was appointed
acting Business Manager pending the new election of officers.
Any new letterhead would have had to reflect Zappone's provisional
status. Considering the printing costs, Zappone decided to use
the old letterhead. This was a reasonable decision, and the presence
of Fresina's name on the letterhead had no effect on the election.
Incumbents Use of a Union Facility
for Campaign Purposes
49. Francella argues that the incumbent candidates
held a campaign rally at the Tri-
50. Cities Laborers' training facility on
September 17, 1998. The invitations were mailed to the membership
on September 8 or 9, 1998. On September 11, 1998, the non-incumbent
candidates were sent a separate letter that notified them that
the facility was available for their use at a reasonable cost.
The incumbents received the letter on or about Monday, September
51. Approximately 200 members of Local 190
attended the rally.
52. The matter is further complicated because
there is no evidence that the incumbents actually paid to use
the facility. Peter Nardolillo, Administrator of the incumbents'
election fund, informed Smith that he paid $100 in cash to rent
the facility for the September 17 rally but did not have a receipt
and could give no details to verify it.
53. Kristie Ryan, Nardolillo's secretary
and administrative assistant, told Smith that she keeps no records
and gives no receipts for the monies collected or paid out for
renting the facility.
54. The non-incumbent candidates should have
been informed at the beginning of the campaign that the facility
was available to all candidates. See Brennan v. Sindicato Empleados
de Equipo Pesado, 370 F. Supp. 872 (D.P.R. 1972). There is
an advantage to the incumbents by using union facilities ater
the campaign has started, and then announcing that the facilities
are open to all. The non-incumbent candidates are put in the position
of attempting to play "catchup ball" while the time
to campaign dwindles. In this instance, however, once the protestors
were notified they could use the facility, they had over two weeks
to schedule a rally at the facility, including two weekends.
Local 190's Failure to Provide Election
Rules to all Candidates
55. The protestors argue that Local 190 unequally
distributed the election rules and regulations by which the election
was run to all candidates and that Local 190, through its attorney,
denied them access to the election rules and regulations until
just prior to the election. It appears that the protestors are
referring to a booklet containing the code of federal regulations
and booklet published by the Department of Labor.
56. This issue has been blown out of proportion
by the protestors. I personally sent a copy of the Department
of Labor pamphlet, Conducting Local Union Officer Elections.
A Guide for Election Officials ("Conducting Local Union
Elections") to Francella on September 16, 1998, by overnight
57. Francella has made no demonstration how
he was prejudiced by not having a copy of the election guide,
or the code of federal regulations, what he would have done
differently had he been supplied with a copy
of them, or how the incumbents gained an advantage by withholding
58. I find no evidence that Local 190 attempted
to gain advantage from hiding the election reference materials.
Intimidation at the Election Site
59. Francella alleges that during polling
hours, the incumbent candidates' campaign workers stopped every
car entering the union hall parking lot and handed out hats and
60. The entranceway to the union hall parking
lot is of such design as to cause congestion when entering the
parking lot. Although candidates' workers were seen throughout
the area, no candidate received special treatment and all were
given equal access to the voting members. Both the incumbents'
and non-incumbents' campaign workers approached the members' vehicles
as they entered the parking lot; no one was seen actually forcing
vehicles to stop, and no improper conduct was reported.
61. Election Judge Nate Pulliam ("Pulliam")
was assigned to watch the parking lot during voting hours in regard
to campaign activities and instruct the members as to the voting
procedure. Pulliam observed both the incumbents and non-incumbents
talking to the members in their cars, but did not see them stopping
the cars or preventing them from entering the parking lot.
62. Francella alleges that Pulliam was seen
shaking hands with members as they arrived outside of the union
63. Pulliam told Smith that he did not talk
to the members about the candidates. When Pulliam learned that
Francella and Mirabile were unhappy with his activities in greeting
the members, Pulliam asked them if there
were any problems with his activities, and both responded in the
64. There was no evidence that Pulliam greeting
the members as they approached the union hall to vote was improper.
The Use of the AAA in the Running of
65. Francella protests that the Judges of
Election and candidates' watchers were excluded from the election
process in violation of the Constitution and the function of the
Judges was usurped by officials from the American Arbitration
66. Pursuant to a request by Local 190, the
AAA conducted the election. Personnel from the AAA designed the
ballots, ran the polls on election day and counted the ballots.
At the close of the polls on September 30, 1998 at 8:00 p.m.,
the AAA personnel met with the watchers and the Judges. During
the counting of the ballots, the Judges maintained a distance
of ten to fifteen feet away from the counting tables. The watchers
maintained a distance of roughly thirty feet. A representative
from the IG's office was also present.
67. The International Union has no policy
on how local union officials are to interact with an independent
agency hired to conduct an election.
68. There is evidence that the AAA personnel
completely superceded the Judges in counting the ballots, determining
whether the ballots were proper and which ballots would be voided.
The use of the AAA or another independent agency does not relieve
the Judges of their duties. The AAA was to insure against improper
activity; however, the AAA personnel were not to completely usurp
the Judges' functions. Notwithstanding that the Judges did not
play an active role at the polling site, there is no evidence
of impropriety during the counting of the ballots.
Incumbents' Improper Presence in the
69. Francella alleges that some of the incumbent
candidates were permitted to enter the area of the building where
the votes were being counted.
70. There is no evidence to support this
claim. Moreover, a representative of the IG's office was present
during the tallying of the votes and reported no interference
by any party. The election was conducted by the AAA personnel;
the AAA personnel reported no interference with the count.
Bias of Local 190's Attorney
71. Francella alleges that Local 190's attorney,
Eugene Devine, was working on behalf of the incumbent officers
and not as Local 190's attorney.
72. Local 190 was permitted to have counsel
during the nomination and election process. It is the obligation
of Local 190 to run a fair election and Local 190 cannot be faulted
for using an attorney to advise those officers in charge of the
election. See In the Matter of Local 652 (Castillo), IHO
Order, 96-32P, (June 4, 1996). Although the Local 190 attorney
argued some positions which were rejected by the IHO, and some
procedures adopted by Local 190 were altered by the IHO, it cannot
be said from this record that the Local 190 attorney was working
on behalf of the incumbents rather than the local union.
Additional Election Protests
73. Francella alleges that it was improper
for Kelly Fresina Moran ("Moran"), the former Business
Manager's daughter and the Local 190's office secretary, to make
the determination as to which members were allowed to vote in
the election. There is no evidence that Moran made any determinations
without the assistance of the Secretary-Treasurer as required
by Article VI, Section 3(c)) of the Constitution.
74. Francella alleges that he was threatened
by Nardolillo when he asked to speak at a retirees' meeting. There
is no evidence to support this allegation.
75. Francella alleges that the non-incumbent
candidates were not permitted to view the ballot prior to the
day of the election. I note that Local 190 had drafted the ballot
in a form that appeared to favor the incumbents, and which was
not in the form suggested by the Department of Labor in the pamphlet,
Conducting Local Union Elections. Based upon Francella's
objections, I ordered the positions of the candidates' names on
the ballots changed prior to the printing of the final ballot.
Francella has made no allegation that the final ballot was improper.
76. Francella alleges that Zappone's campaign
materials were defamatory. The IHO will not attempt to judge the
truth or falsity of campaign material that is a campaign issue
to be decided by the voters.
77. Francella alleges that the absentee ballots
were not distributed to all members who requested them, the ballots
contained an unreasonable time restriction, the number to call
for an absentee ballot was not answered or the requesting members'
messages were not returned. There is no evidence of any impropriety
in the handling of the absentee ballots or that they were not
promptly and properly distributed.
78. Francella also alleges that members who
were current in their dues were not allowed to vote. The evidence
is to the contrary. Only one person was not permitted to vote
because, it was determined, he had transferred his membership
to another LIUNA local union and was not eligible.
79. Mclaine protests that the Judges failed
to contact him prior to the election to ask him how he wanted
his name to appear on the ballot. Mclaine has not indicated if
there was any error in the listing of his name or how any such
error affected the outcome of the election.
1. The membership of Local l90 were not denied
a reasonable opportunity to vote by the selection of the date
of the election.
2. The membership of Local 190 were not denied
a reasonable opportunity to vote by the nomination and election
being held at the union hall on Wemple Road.
3. The protestors were not prejudiced by
the variances in the election scheduled granted by General President
Coia. The protectors received a period of 31 days in which to
wage their campaign, this is far in excess of the minimum required
by Article VI, Section 2(j)) of the Constitution, more than they
would have received had the normal election sequence taken place,
and more time than under the sequence they requested.
4. Although Local 190 permitted Francella
to review the membership list within 30 days of the election,
there was an unreasonable delay from his request on August 28
until September 21 when he was permitted to see the list.
5. Local 190 unreasonably delayed supplying
the protectors a list of work sites, and the list was vague and
6. Local l90 improperly issued instructions
through its stewards to prohibit protectors from campaigning in
work sites. This decision should have been made by the individual
contractors. As a result the protestors were denied access to
the Spancete site.
7. There is no evidence that the incumbents
campaigned on job sites.
8. Although Local 190 should have notified
all candidates at the outset of
the campaign that the union facility was
available to all candidates, the notification sent by Local 190
gave the non-incumbent candidates well over two weeks, including
two weekends to use the facility.
9. There is no credible evidence that the
incumbents paid for the use of the facility when it was used for
Date: January 28, 1999
Eugene P. Devine, Esquire
Karen Kimball, Esquire
Joel Howard, Esquire
INDEPENDENT HEARING OFFICER