U.S. Department of Labor
Office of Labor-Management Standards
Division of Enforcement
20210 Washington, DC
(202) 693-0143 Fax: (202) 693-1343
April 20, 2011
Dear
This Statement of Reasons is in response to your complaint dated December 17, 2010,
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 United Food and Commercial
Workers (UFCW), Local 648 election of officers on August 26, 2010.
The Department has conducted an investigation of your allegations. As a result of the
investigation, the Department has concluded that there was no violation that may have
affected the outcome of the election.
First, you allege that the Local violated the UFCW International Constitution and the
LMRDA because , the General Chairperson for the election, was not “in
charge” of the two nomination meetings on July 26, 2010, and the election judges were
not selected by the time of the nomination meetings. Section 401(e) of the LMRDA
requires that union elections be conducted in accordance with the constitution and
bylaws of such organization insofar as they are not inconsistent with the provisions of
Title IV. Article 35(C)(5) of the UFCW International Constitution provides that “[t]he
President shall select a general chairperson, who shall be a member of the United Food
and Commercial Workers, to supervise the conduct of the nominations and the election
and no less than three members to act as election judges to the assist the general
chairperson.”
The investigation determined that the Local did not violate its constitution, and,
consequently, did not violate the LMRDA. did chair the nomination
meeting and made all decisions regarding each candidate’s eligibility. He therefore
“supervised the conduct of the nominations.” With respect to your allegation that the
election judges were not selected at the time of the nomination meeting, the language of
the constitution and bylaws does not explicitly require that the election judges be
selected at that time. While the constitution details specific duties of the election judges
at other times such as “maintain[ing] custody of all ballots and election registers”
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(Article 35, Section G(2)), it is silent with respect to any specific duties of the election
judges at the nomination meeting.
Second, you allege that the General Chairperson improperly disqualified vice
presidential nominees, and , because they did not work in the
appropriate divisions. The investigation concluded that he disqualified them because
they both worked in the Grocery Division yet sought vice presidential offices limited to
employees of the Bakery and Candy and Cigar and Liquor Divisions. Local Bylaws,
Article VII, Section A provide that “[t]he constitutional officers of this Local Union shall
be a President, Secretary-Treasurer, Recorder and Vice Presidents elected as follows:
four (4) from the Grocery Division, one (1) from the Bakery and Candy Divisions, one
(1) from the Cigar and Liquor Division, and one (1) from the Drug Division, plus seven
(7) Vice Presidents elected at-large.”
Section 401(e) of the LMRDA, provides that “every member in good standing shall be
eligible to be a candidate and to hold office (subject to section 504 and to reasonable
qualifications uniformly imposed).” The Department’s regulations further specify that
“[i]n the case of a position which is representative of a unit defined on a geographic,
craft, shift, or similar basis, a labor organization may by its constitution or bylaws limit
eligibility for candidacy and for holding office to members of the represented unit.” The
Local’s requirement that some vice presidential offices be held by members of specific
divisions is the very type of permissible representative offices contemplated by the
Department’s regulations. Disqualifying and from running for vice
president of the Bakery and Candy and Cigar and Liquor Division because they did not
work in those divisions was consistent with the union’s bylaws and did not violate the
LMRDA.
You also allege that the requirement that vice presidential offices be held by members of
specific divisions was not uniformly imposed. Specifically, you assert that the General
Chairperson improperly permitted an employee of Torgysn’s Gifts
and Cigars, to be a Cigar and Liquor vice presidential candidate and her employer does
not sell cigars. The investigation established that: 1) the Local determines if a candidate
is “from” a particular division based on the division’s contract; and 2) is
covered by a Cigar and Liquor Division contract. Hence, the General Chairperson
properly allowed her to run as a Cigar and Liquor vice presidential candidate. The
investigation further established that all of the accepted nominees for division-specific
positions were from the appropriate division. No violation of the LMRDA occurred.
Third, you allege that the General Chairperson improperly disqualified vice
presidential nominee because she could not meet UFCW’s continuous
active membership requirement. Under the constitution and bylaws, in order to be
eligible to hold office a candidate must either: 1) maintain continuous active
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membership in the Local (or an organization merged with the Local) for at least twelve
months preceding the election; or 2) maintain continuous active membership in the
International Union for twenty-four months preceding the election. UFCW International
Constitution, Article 35(A). The investigation established that the local’s sole
requirement for active membership is to pay dues and that a member is not suspended
until she has neglected to do so for sixty days.
Section 401(e) of the LMRDA provides that “every member in good standing shall be
eligible to be a candidate and to hold office (subject to section 504 and to reasonable
qualifications uniformly imposed).” Under the Department’s regulations a local’s
“requirement of continuous good standing based on punctual payment of dues will be
considered a reasonable qualification only if (1) it provides a reasonable grace period
during which members may make up missed payments without loss of eligibility for
office and (2) the period of time involved is reasonable.” 29 C.F.R. § 452.37(b). The
membership is reasonable.
As stated above, the Local’s continuous active membership requirement does not
violate the LMRDA so long as the requirement is uniformly applied. The investigation
concluded that the Local verified each candidate’s length of active membership and did
not permit any candidate to run for office who could not meet the requirement.
Because had no prior UFCW membership before affiliating with the local, in
order to be eligible to hold office she needed to be a continuous active member of the
local for twelve months. Her union affiliation date is July 1, 2010, one month prior to
the election, therefore, the General Chairperson properly disqualified her.
Fourth, you allege that union staff informed two members, and
, that they could not vote because they were not U.S. citizens. Section
401(e) of the LMRDA provides that every member in good standing shall have the right
to vote for or otherwise support the candidate or candidates of his choice. The
investigation revealed that the local sent ballots to both members and that the local
permits all members in good standing to vote regardless of whether or not they hold
U.S. citizenship. Consequently, this allegation is without merit. There was no violation.
Fifth, you allege that the General Chairperson disposed of campaign literature that a
supporter had placed in a break room. Section 401(c) of the LMRDA requires that
“adequate safeguards to insure a fair election shall be provided.” The Department’s
regulations further specify that “[a] labor organization’s wide range of discretion
investigation established that the local satisfies the grace period requirement because it
will not suspend a member until she has been delinquent in her dues for sixty days.
The reasonableness of a time period depends upon the circumstances. However, the
Department usually considers any continuous good standing not exceeding two years
to be reasonable. 29 C.F.R. §452.37(a). Therefore, the local’s requisite length of
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regarding the conduct of elections is thus circumscribed by a general rule of fairness.”
29 C.F.R. § 452.110. In sum, the Local is required to treat all candidates equally. Thus,
the General Chairperson would violate the Act if she disposed of one candidate’s
literature and left another candidate’s literature undisturbed. However, the
investigation established that no one witnessed the alleged disposal and there were no
other facts to substantiate the claim. This allegation is also without merit. There was no
violation.
For the reasons set forth above, the Department concludes that there was no violation of
the LMRDA affecting the outcome of the election. Accordingly, I am closing the file on
this matter.
Sincerely,
Patricia Fox
Chief, Division of Enforcement
cc:
Joseph T. Hansen, International President
United Food & Commercial Workers
1775 K Street Northwest
Washington D.C.
Michael Sharpe, President
United Food & Commercial Workers Local 648
1980 Mission Street
San Francisco, California 94114
Beverly Dankowitz
Acting Associate Solicitor for Civil Rights and Labor-Management