action," this Court's authority under the All Writs Act extends to employers because they are in a position to influence campaigning during the 1995-96 IBT election and such influence could have profound implications for the Consent Decree.
Not only is the proposed rule necessary in aid of this Court's jurisdiction over the Consent Decree, but enforcement of the rule is "agreeable to the usages and principles of law" because the rule sets forth procedures that limit the intrusion on an employer's property rights to a minimum. The right of access is extremely circumscribed in its scope. As discussed above, the rule provides no right to enter any area other than an employee parking lot, and IBT members can gain access only during hours when the parking lot is normally open to employees. IBT members only have a right of access for the purpose of campaigning for delegate or International Union office and only during hours when a parking lot is normally open to IBT members. The rule creates no right to campaign or to receive campaign advocacy during working hours, and campaign activity that would materially interfere with the normal business activities of the employer is not permitted. An employer may require a person seeking access to an employee parking lot to produce reasonable identification in order to assure that such a person is a candidate or other IBT member entitled to such access. In addition, the right of access afforded by the rule is a presumptive right only, and any employer may rebut this presumption by demonstrating to the Election Officer that the exercise of the right by IBT members with regard to that employer is "neither necessary nor appropriate to meaningful campaigning or IBT members' becoming informed about candidates." (See Election Officer's Memorandum at 29.)
The proposed rule also is "agreeable to the usages and principles of law" because it protects a nonparty's "opportunity to seek relief from it in the district court." In re Baldwin-United Corp., 770 F.2d 328, 340 (2d Cir. 1985). The proposed rule affords employers full procedural protections by giving any employer the opportunity to apply to the Election Officer for an exemption from the rule. If the Election Officer denies the requested exemption, an employer may appeal the Election Officer's decision to the Election Appeals Master, and, ultimately, to this Court.
Moreover, this Court finds that, in the context of the IBT, the limited right of access set forth in the rules is both warranted and necessary to ensure that the IBT membership is well informed regarding its choice of candidates for both delegate and International Union office. In the context of the 1991 IBT election, the Second Circuit recognized the importance of access to employer premises for the purpose of campaigning "where no feasible alternative for campaigning by candidates for union office is available." Yellow Freight, 948 F.2d at 104. This Court agrees with the Election Officer that other methods of campaigning, including mailings, telephone campaigns, home visits, and alternative methods of face-to-face campaigning are woefully inadequate. Restricting candidates to those methods of campaigning will leave IBT members ill-informed regarding the choice of candidates in the 1995-96 IBT election. Thus, the proposed rule is crucial to the achievement of a free, fair, and democratic election process, and this Court's power to enforce the rule is firmly rooted in this Court's authority pursuant to the All Writs Act. Accordingly, the objection is overruled.
In sum, having reviewed the proposed rules that modify the 1991 IBT election rules, the Court finds these modifications to be well founded. Furthermore, this Court finds that the various objections to these proposed modifications are without merit. This Court approves and adopts the third group of proposed election rules, i.e., those that modify the election rules adopted during the 1991 IBT election and that are the subject of an objection.
4. Additional Objections
Several objections to the proposed election rules concern proposed changes to the rules that the Election Officer rejected during the rules-promulgation process. Each of these is discussed in turn.
a. Formula for Allocation of Convention Delegates Among Local Unions As Applied to Local Unions Comprised of a Substantial Number of Seasonal-Food-Industry Employees
IBT Local 890 objects to the formula set forth in the IBT Constitution for allocating the number of IBT Convention delegates to be elected by each Local Union. Article VII, Section 5 of the IBT Constitution provides, in relevant part:
The General Secretary-Treasurer shall determine the number of delegates which a Local Union may be entitled to send to the Convention by averaging the per capita tax paid on members by said Local Union for a two-year period ending six (6) months prior to the first day of the month in which the Convention is convened . . . .
In essence, the number of delegates from each Local Union is based on the number of dues-paying members in that Local Union. The number of dues-paying members in a Local Union is determined by dividing the average dues paid by all the members from that Local Union over a two-year period by what a single, full-year employee would pay in dues during that period. Local 890 objects to the application of this formula to Local Unions with a substantial number of members employed in the seasonal food industry. Such members are employed seasonally and are, therefore, temporarily laid off by the food industry during part of each year. In Local Unions comprised of a substantial number of employees in the seasonal food industry, such as Local 890, the average number of dues-paying members as calculated by the above-mentioned formula tends to be lower than the actual number of members.
The proposed rules recognize that members who have been temporarily laid off due to their employment in the seasonal food industry have a right to vote for convention delegates and International Union officers, even though these members' dues may not have been paid through the month prior to balloting. Nevertheless, under the formula for delegate representation set forth in the IBT Constitution, members in Local Unions are, in effect, only awarded delegate representation in proportion to the number of months per year that they work and pay dues. Thus, for example, Local 890 reports that in the 1991 IBT election, although its members numbered approximately 12,000, its delegate allocation was based on an average of 7,000 dues-paying members. As a result, members from Local Unions comprised of a substantial number of employees in the seasonal food industry typically are represented by fewer delegates as compared to members in other Local Unions.
Local 890 contends that the formula for calculating the number of Convention delegates from each Local Union violates the LMRDA. Local 890 argues that the election provisions of the LMRDA are "firmly grounded on the 'one-member, one vote' principle, and thereby implicitly reject any arrangement for nominating and voting in union elections that dilutes the value of any one member's vote." (Memorandum of Teamsters Local 890 in Response to Application for Approval of Election Rules ("Memorandum of Teamsters Local 890") at 6.) In support of this contention, Local 890 points to 29 U.S.C. § 411(a)(1), which provides that "every member of a labor organization shall have equal rights and privileges within such organization to nominate candidates, [and] to vote in elections," and to 29 U.S.C. § 481(e), which provides that "each member in good standing shall be entitled to one vote."
Local 890 proposes an election rule that allocates Convention delegate representation to Local Unions with a substantial number of members employed in the seasonal food industry on the basis of the actual number of members in each Local Union, rather than the average number of dues-paying members.
Although Local 890 has styled this argument as an objection to the proposed rules for the 1995-96 IBT election, in fact, Local 890 objects to the IBT Constitution, not the proposed election rules. Indeed, Local 890 concedes that "the number of delegates a seasonal Local is permitted to have at the IBT convention . . . is not expressly addressed in the proposed Rules, and thus is subject to the averaging formula provided in Article VII, Section 5 of the IBT Constitution." (Memorandum of Teamsters Local 890 at 3.) Nevertheless, Local 890 urges this Court to modify the proposed election rules to include a provision that would, in effect, contradict the IBT Constitution.
Local 890 has failed to demonstrate, however, that the formula for allocating Convention delegates among Local Unions violates labor laws or otherwise hinders the Consent Decree's goals. This Court agrees with the Election Officer that "while it might be reasonable or necessary to require modification of a clause in the International Constitution which is patently illegal or which stands as a significant obstacle to the fulfillment of the goals of the Consent Decree, there is no good reason to arbitrarily interfere with the operation of the Union." (Election Officer's Reply Memorandum at 36.) Although Local 890 cites several provisions of the LMRDA regarding a union member's right to vote in union elections, these provisions do not prohibit the union representation structure found in the IBT Constitution. Moreover, the Election Officer has cited a Department of Labor regulation that recognizes the right of a union to establish its own structure for delegate representation during elections:
When officers of a national, international or intermediate labor organization are elected at a convention of delegates who have been chosen by secret ballot, the structure of representation of the membership is a matter for the union to determine in accordance with its constitution and bylaws. There is no indication that Congress intended, in enacting Title IV of the Act, to require representation in delegate bodies of labor organizations to reflect the proportionate number of members in each subordinate labor organization represented in such bodies. Questions of such proportionate representation are determined in accordance with the labor organization's constitution and bylaws insofar as they are not inconsistent with the election provisions of the Act.
29 C.F.R. § 452.127.
Not only is the formula set forth in the IBT Constitution for allocating Convention delegates among Local Unions permitted by law, but it is also consistent with the goals of the Consent Decree. Nothing in the Consent Decree prevents the IBT from choosing a delegate representation structure that allocates Convention delegates on the basis of each Local Union's average number of dues-paying members. Regardless of whether that delegate-representation structure is ultimately the fairest, it is not contrary to the Consent Decree. Hence, neither labor law nor the Consent Decree provides a basis for an election rule that would override the IBT Constitution's formula for allocating Convention delegates among Local Unions.
Local 890 also argues that because an overwhelming number of Teamsters employed in the seasonal food industry in California are female and hispanic, the formula constitutes institutional race, sex, and national origin discrimination because it denies those Union members sufficient Convention delegate representation. Local 890 cites Usery v. Stove, Furnace & Allied Appliance Workers International Union, 547 F.2d 1043 (8th Cir. 1977), and Donovan v. Local 719, United Automobile, Aerospace and Agricultural Implement Workers of America, 561 F. Supp. 54 (N.D. Ill. 1982), for the proposition that under the LMRDA, the absence of a deliberate intent to discriminate on the basis of race, sex, or national origin is not a defense against a challenge to election results on the ground of alleged discrimination. Furthermore, Local 890 notes that by far the largest group of Teamsters employed in the seasonal food industry is located in California and that California Government Code, section 12940(b) bars discrimination on the basis of sex, race, and national origin with respect to "the election of officers of [a] labor organization."
Any allegation of race- or gender-based discrimination is a serious matter. When that allegation is levelled at a labor union, especially one that continues to refer to itself as a "Brotherhood," Justice pricks its ears. In fact, it may be time for the Union to cease using the anachronism "Brotherhood" and consider changing its name to reflect the increasing participation of women in the Union. Invidious discrimination of any kind, in any form, and under any guise is evil. It is unconscionable; it is dehumanizing; it is degrading; it is destructive; it is divisive; it is virulent; it is intolerable; it is abhorrent; and it must not be ignored or condoned. Invidious discrimination is one of society's worst enemies because it undermines society's moral foundation. In essence, it is a crime against humanity. Every conceivable legitimate means should be used to root it out.
Unfortunately, however, the Consent Decree is not a panacea. Under the Consent Decree, this Court only has authority and jurisdiction to rid the IBT of the influence of organized crime. Local 890's claim that the IBT Constitution discriminates against women and hispanics, while raising an issue of great concern to this Court, does not constitute a claim that the IBT Constitution is inconsistent with the Consent Decree. The Consent Decree is designed to remedy the problem of organized crime's influence over the Union, not the alleged problem of race- or gender-based discrimination in the Union. The Consent Decree is not an open sesame for modification of the IBT Constitution.
Moreover, Local 890's proposed modification of the election rules is not an appropriate vehicle for addressing the claim that a provision of the IBT Constitution discriminates against women and hispanics. Local 890 concedes that the offending provision is contained not in the proposed election rules, but rather in the IBT Constitution. Modifying the 1995-96 IBT election rules to eliminate the purportedly discriminatory provision of the IBT Constitution would only resolve Local 890's claim in the context of the 1995-96 IBT election and would leave the offending provision intact for all future elections. In addition, resolution of Local 890's discrimination claim would require extensive evidentiary hearings on issues not relevant to the administration of the Consent Decree in order to assess the factual basis for that claim. Thus, Local 890's claim that the IBT Constitution discriminates against women and hispanics is not properly the subject of this proceeding.
Accordingly, the objection is overruled.
b. Eligibility To Vote: The Requirement that Employers Deduct Union Dues
The proposed rules allow members to vote in the 1995-96 IBT election as long as their employer deducts their Union dues from their wages, even if the employer has delayed payment of those dues to the Local Union or defaulted on such payments. IBT Local 1150 objects to this proposed rule on the ground that, read strictly, it implies that a member will be disqualified from voting if his employer fails, whether inadvertently or deliberately, to deduct union dues from his wages. In other words, Local 1150 reads the proposed rule to allow a member to vote if his employer has deducted his dues from his wages but failed to remit those dues to the Local Union, but also reads the rule to disqualify a member from voting if his employer simply fails to deduct any union dues at all. Local 1150 urges this Court to modify the proposed rules so that eligibility to vote would depend not on whether a member's employer actually deducts dues from that member's wages, but rather on whether the member was paid wages from which dues should have been deducted. Local 1150 argues that, otherwise, an employer's failure to deduct Union dues will prevent a member from voting, through no fault of that member.
Local 1150's proposed modification is unnecessary, however, because the proposed rules, in conjunction with the IBT Constitution, adequately address this contingency. Article X, Section 5(c) of the IBT Constitution provides that "a member on dues checkoff whose employer fails to make a proper deduction during any month in which the member has earnings from which the dues could have been deducted, shall not lose good standing status for that month." The Election Officer notes that this provision applies to a member's right to vote. (Election Officer's Reply Memorandum at 20.) Moreover, this provision of the IBT Constitution is referenced in Article VI, Section 1(b) of the proposed rules, which includes among those eligible to vote:
Under and in accordance with Article X, Section 5(c) of the IBT Constitution, each member otherwise in good standing whose dues record does not reflect that his/her dues have been paid through the month prior to the month in which ballots are counted, who pays his/her dues by check-off, and whose employer has remitted dues from him/her in the last remittance made by such employer, provided that such remittance was received within ninety (90) days of the date on which the ballots are counted . . . .
Because the proposed rules adequately address the concern raised by Local 1150, the objection is overruled.
c. Ballots Marked for Both a Slate of Candidates and an Inconsistent Individual Candidate
IBT Local 1150 also objects to Article III, Section 4(g) of the proposed rules, which provides that in the event that a voter marks a ballot for both a slate of candidates and an inconsistent individual candidate, the ballot is counted as a vote for the slate of candidates and the marking for the individual candidate is disregarded. This proposed rule also applied during the 1991 IBT election. Local 1150 contends that the rule is inconsistent with federal law, which requires that a ballot be counted in accordance with the intent of the voter, and argues that markings for individual candidates should take precedence over a marking for a slate of candidates.
While it is true that courts have required that ballots be counted in accordance with the intent of the voter, Local 1150 has failed to demonstrate that giving a marking for a slate of candidates precedence over markings for inconsistent individual candidates is contrary to the voter's intent. Local 1150 argues that "[a] mark placed next to the name of an individual candidate plainly indicates the voter's deliberate and considered decision to vote for that individual." (Memorandum of Teamsters Local 1150 in Response to Election Officer's Application No. 1 ("Memorandum of Teamsters Local 1150") at 8.) One might argue with equal force, however, that a mark placed next to a slate of candidates plainly indicates the voter's deliberate and considered decision to vote for that slate. The problem addressed by the proposed rule only arises, after all, when the markings on a particular ballot cannot be interpreted consistently. Thus, the preference given in the proposed rules to the marking for a slate of candidates is a reasonable interpretation of the voter's intent. Moreover, this rule applied during the 1991 IBT election and, therefore, the IBT membership is already accustomed to this rule. Adopting an opposing rule for which there is no more reasonable justification would simply create undue confusion. Accordingly, the objection is overruled.
d. Verification of the Computer Program Used to Count Ballots
IBT Local 1150 urges this Court to amend the proposed rules to afford candidates the opportunity to verify the accuracy of the computer program codes used in the counting of ballots in the election. Specifically, Local 1150 argues that (1) candidates should be permitted to have a competent expert review the computer program codes to verify their accuracy, and (2) the computerized vote count should be subject to verification by a hand count of the ballots from a statistically significant number of randomly selected locals after the computer count has been completed.
Local 1150's concern over the accuracy of the computer program codes is based not on any specific complaint regarding the computer program codes employed by the Election Officer but rather on a more general skepticism regarding the accuracy of vote-counting computer program codes. While this concern is understandable, Local 1150's proposed remedy is cumbersome and involves unwarranted security risks. To amend the rules to afford every candidate the right to have his or her expert examine the computer program codes before any specific protest regarding the accuracy of those codes has arisen would implement an inefficient means of verifying the accuracy of the computer program codes. In addition, the Government points out that affording candidates such access would compromise the security of the computer program codes and increase the risk of tampering. (Government's Response Memorandum at 40.)
If, during the election process, a protest arises concerning the accuracy or integrity of the computer program codes, steps may be taken to verify the accuracy of the computerized vote count in question. In the appropriate circumstance, for example, this Court could appoint its own expert for such a purpose, or otherwise require the Election Officer to verify the election results. Similarly, a hand-count verification of the election results is a remedy more appropriately implemented by the Election Officer or this Court in response to a specific protest regarding the accuracy of the election results. Accordingly, the objection is overruled.
e. Interested Parties' Access to Decisions of the Election Officer and the Election Appeals Master and to Court Documents
The proposed rules provide that copies of decisions on protests issued by the Election Officer or the Election Appeals Master shall be sent to (1) the complainant, (2) the Local Union involved, (3) any candidate adversely affected by the decision, and (4) any person or entity that is the subject of the decision. IBT Local 1150 urges this Court to expand the rules to require the Election Officer and the Election Appeals Master to send copies of their decisions to "interested members and affected affiliates." (Memorandum of Teamsters Local 1150 at 14.) In addition, Local 1150 urges the Court to adopt a rule whereby interested members and affiliates are sent copies of IBT election-related documents filed with this Court.
With regard to decisions of the Election Officer and the Election Appeals Master, the Court finds that the proposed rules set forth an adequate and complete list of the individuals and entities to which copies of those documents automatically should be sent. Clearly, decisions of the Election Officer and the Election Appeals Master are public documents, and copies of these documents should be made available to any Teamster upon request. Indeed, the Election Officer represents that she is devising procedures for handling such requests. (Election Officer's Reply Memorandum at 28.) Adopting a rule that would require the Election Officer automatically to send copies of decisions to all "interested parties and affected affiliates," however, would be unduly burdensome and unjustifiably expensive.
Similarly, a requirement that the Election Officer automatically send copies of all election-related filings with this Court to all interested parties and affected affiliates would also be unduly burdensome and unjustifiably expensive. Accordingly, the objection is overruled.
f. Proposed Signature Requirement for Ballot Envelopes
IBT Local 1150 urges this Court to modify the proposed rules to require each member, during both the delegate elections and the elections for International Union office, to sign the outside of the envelope in which that member returns his ballot. The purpose of this proposal is to provide an additional means of voter verification during the balloting process. Local 1150 argues that without such a signature requirement, anyone who comes into possession of an unmarked or unsealed ballot can mark and return the ballot.
Neither the 1991 IBT election rules nor the proposed election rules for the 1995-96 IBT election have included such a requirement. Under the proposed rules, ballots are sent with prelabeled envelopes containing the member's name, address, and other identifying information. Ballots lacking the correct information on the return envelope will be considered void. In addition, ballots and return envelopes both contain markings to distinguish them from fraudulent ballots.
The Election Officer argues that an additional requirement of a signature on the exterior of the ballot envelope is not a particularly effective security measure because verification of the signature is itself a burdensome and expensive process. (Election Officer's Reply Memorandum at 32-33.) More importantly, adding an additional requirement to the balloting procedures presents the voter with one more hoop through which to jump before his vote may be counted. As the Election Officer notes, "making the voting process more complicated insures that some portion of the voters will mistakenly fail to comply with a new written instruction to sign the envelope and thus will have their otherwise legitimate votes invalidated." Id. at 33.
This Court agrees with the Election Officer that "ballot security rules should be carefully scrutinized to ensure that their potential for invalidating participation does not outweigh their value in assuring procedural integrity." Id. In view of the relatively minor increase in security afforded by a requirement that each voter sign the exterior of the ballot envelope, the benefits of such a requirement are clearly outweighed by the potential for invalidating otherwise legitimate ballots that would be created by such a requirement. Accordingly, the objection is overruled.
In sum, having reviewed the additional objections to the proposed election rules and having found them to be meritless, these objections are overruled.
For the reasons discussed above, it is hereby ordered that Election Officer Application I is granted and the proposed election rules for the 1995-96 IBT election, as amended in Appendix A to the Election Officer's Reply Memorandum, are adopted in their entirety.
It is further ordered that all subordinate entities of the International Brotherhood of Teamsters, including all locals and joint councils, are hereby bound by these election rules, effective immediately.
It is further ordered that these rules shall be enforceable upon pain of contempt.
Dated: New York, New York
August 22, 1995
David N. Edelstein