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.


Date: January 28, 1999

Eugene P. Devine, Esquire
Karen Kimball, Esquire
Joel Howard, Esquire
Michael Mclaine
John Nardolillo
Robert Michel






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.


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 Nomination Meeting.


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. Under

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 Polling Place

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 issue.

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 site.

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 candidates.

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 Code.


Incumbent Officers' Use of Old Union Letterhead

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 14, 1998...

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 mail.

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 them.

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 sample ballots.

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 hall.

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 negative.

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 the Election

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 Association ("AAA").

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 Counting Area

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 not helpful.

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 campaign purposes.

Date: January 28, 1999

Eugene P. Devine, Esquire
Karen Kimball, Esquire
Joel Howard, Esquire
Michael Mclaine
John Nardolillo
Robert Michel




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