Electronic Mail and First Class Mail Jesse J. Averhart Mary R. Walker 23 North Lenape Ave. Carteret Arms Trenton, NJ 08618 333 W. State St. – Apt-10L 609-865-5431 Trenton, NJ 08618-5744 609-433-3950 Dona M. Varga 870 Rt. 130 North, Apt. G-4 Burlington, NJ 08016 609-239-9579 July 11, 2011 Larry Cohen, President, and Jeff Rechenbach, Secretary-Treasurer Communications Workers of America 501 3rd St., N.W. Washington, D.C. 20001-2797 Dear Messrs. Cohen and Rechenbach: On behalf of the members of Local 1033, the below signees submits another complaint (one of numerous) against the CWA 1033 Local Executive Board (“Local 1033”). This complaint alleges continuous (ongoing) systemic violations of the CWA Constitution, Local Bylaws and the Rights and Privileges of the members of this local, secured by the Bill of Rights in Title I of LMRDA, 29 U.S.C. § 411, SEC. 101 (“Title 1”). The latter, the LMRDA, was enacted by Congress to address corruption in private sector labor organizations. Notwithstanding, it has been adjudged that members of public employee only locals are also protected per Title I, SEC. 101. (a)(1), to: equal rights and privileges as private sector locals of mixed unions, in relevant part to nominate candidates, to vote in elections or referendums of the labor organization by secret ballot vote, to attend membership meetings and to participate in the deliberations and voting upon the business of such meeting. SEC. 101. (b) of the Act provides that “[a]ny provision of the constitution and bylaws of any labor organization which is inconsistent with the provisions of this section shall be of no force or effect.” Though Title I is general, courts have cross-referenced these general violations to the more specific coverage contained in Titles 2 thru 5. In essence, public worker only local members have access to the federal courts under Title I, but not for violations of Titles 2 through 5, as do private sector locals of this mixed union. Consequently, the parent union must provide the equal rights and privileges contained in Titles 2 thru 5 by adopting same in the constitution. It is submitted that the provisions of Title 2 through 5 presently exist in the current constitution. However, these provisions are ineffective because they are not enforced. This explains the ongoing arrogant flaunting of the constitution and rulings by decree by the Local 1033 Executive Board. Local 1033 Executive Board’s rulings by decree justify a lawsuit or other measure to recover damages, and to secure an accounting and/or other appropriate relief, such as placing Local 1033 under the supervision of a Temporary Administrator in accordance with Article XIII, § Section 8 of the CWA Constitution (“Constitution”), until such time as this Local can be fully restored to democratic rule. COMPLAINT: It is the complainants’ contention that the filing of a frivolous lawsuit by the Local 1033 Executive Board violates the Constitution, Local By-laws and Title 1 of the LMRDA: 1. Article XV, Sec. 4 (a) by violating “federal or provincial laws,” to wit, Title 1, according to Title IV, Sec. 101 (g) prohibits campaigning using union funds, equipment, premises and anything of value, no matter how nominal; 2. Article XV, Sec. 4 (a) by violating “federal or provincial laws,” to wit, Title 1, by failing to establish a legislative-political committee mandated by Article XIII, Section 9 (e) of the Constitution for democratic participation of members “in the deliberations and voting upon the business” of this local in regard to the filing of a lawsuit; 3. Article XIX, Sec. 1 (c), by “willfully violating the Constitution of the Union [and] Local bylaws” by failing to establish a legislative-political committee; 4. Article XIX, Sec. 1 (d), by “disobeying or willfully failing to comply with any lawful decision or order of the Union or Local” regarding the filing of a lawsuit that could result in a legal precedent that could harm public worker union members throughout the state; 5. Article XIX, Sec. 1 (h) by “misappropriating money or property of the Union or Local” by filing a lawsuit for the purpose of campaigning. 6. Article XIX, Sec. 1 (i) “for such other offenses, equally serious, which tend to bring the Union or Local thereof in disrepute” by exaggerating the membership strength of this Local Union. 7. Article XIX, Sec. 1 (i) “for such other offenses, equally serious, which tend to bring the Union or Local thereof in disrepute” by filing a premature lawsuit that usurps a coordinated legal response by all state employee unions and could result into an unfavorable precedent being set that precludes further legal action on behalf of all public workers in the state. 8. Article XIX, Sec. 4 (e) “the election by Locals of officers, members of a governing body, and delegates…to the Union Convention shall be by secret ballot…” Absent a fair and democratic local election of delegates further taints members rights to democratically participant in the election of Union Officers. RIGHT TO A FAIR AND DEMOCRATIC LOCAL UNION ELECTION Right to nominate candidates. For the 2011 CWA Local Officer Election, the local by-laws require candidates for the office of President, Vice- President, Treasurer and Secretary to obtain 200 member signatures on a ballot petition in order to run for these offices. It is exaggerated to state that this local represents a membership of 7,000. Thus, 200 member signatures on a candidate’s petition represents 2.86% or almost 3% of the membership. Conversely, to conduct union business at a local membership meeting requires 75 members. A paltry ratio of 1.07%. of the membership. A glaring 166% increase in importance of nominating officers as compared to conducting union business. Title IV, 29 U.S.C. 481 Sec. 401 (e) provides that: In any election required by this section which is to be held by secret ballot a reasonable opportunity shall be given for the nomination of candidates and every member in good standing shall be eligible to be a candidate and to hold office The standard is whether or not the signatories required on a petition is “reasonable,” where there is a strong public policy requiring union elections be conducted according to democratic procedures. The disparity between conducting union business and nominating officers reflects an anti-democratic effect and is thus, unreasonable. The intent is clear: to eliminate or dissuade potential candidates from running for office. To add further insult to injury, election appeals of the 2005 CWA Local Officer Election were summarily dismissed, where members were permitted to sign only one candidate’s petition for a particular office to get on the ballot. This requirement was surreptitiously removed for the 2008 officer election. The complainants and members of Local 1033 have an entitlement to a fair and democratic local union election. As such the provisions of the CWA Local 1033 By-laws requiring 200 signatures on a petition ballot is democratically unreasonable on its face and should be abolished as inconsistent with the provisions of the Constitution and Title I. Democratic procedures demands the requirement be reasonably lowered to 75. Members have a right know the exact membership strength of this Local As noted, there has been an exaggeration of the membership strength of this Local: a claim of “approximately 7000 members.” Members have the right and privilege to know the exact membership strength of their local, including the number of full-dues paying members and agency fee payers. This information helps to assess our strength, and measure the competence and direction of leadership. Moreover, the exaggerated numbers could provide the incumbents with extraneous votes beyond the actual membership of this local and could affect the outcome of an election. Local 1033 is “withholding from their members information necessary for the effectuation of current policy or the achieving of important objectives of the Union,” a fair and democratic election and should be ordered to reveal this information to the members of this local. Campaigning using union funds, equipment and premises, and usurping a collective coordinated union legal response from all state worker unions Complainants received a notice dated July 1, 2011 “from Rae Roeder, President,” advising the membership that on “On Wednesday, June 22, 2011, CWA Local 1033 and individual members….filed suit…seeking a declaration that the State’s continued failure to fund these retirements systems as required by law violated the constitutional rights of employees and retirees.” Exhibit A. It is further noted that the incumbents, Rae Roeder, Anthony Miskowski and Dennis Reiter are named as plaintiffs in this lawsuit. Exhibit B. A notice was received July 8, 2011 from Rae Roeder explaining the reason for the filing of the lawsuit and noting therein, that “If you [member] responded to our Pension support letter, we will be sending you a copy of the lawsuit….[d]uring the summer months we will keep you apprised of the progress of the pension lawsuit and how you can help.” Exhibit C. Simultaneously, on July 8, 2011 a statement was issued to all CWA New Jersey Public Workers from Hetty Rosenstein, NJ CWA Area Director regarding legislation that affected members’ terms and conditions of employment, noting that: Legal – Our lawyers, Weissman & Mintz, have already been researching the appropriate legal response to this bill. Our goal is to WIN whatever lawsuit we file and so we don’t want to just sue for the sake of suing. We have been discussing a coordinated legal response from all of the unions and Steve Weissman has already begun discussing these issues with the attorneys from other unions. Our goal is to put together the best legal team possible and take on the most winnable issues – and then build on our legal victories. It is important that we take on the right issues so that we do not create any bad case law. The statement from the CWA Area Office was co-signed by 21 other Locals, except CWA Local 1033. Exhibit D. It is evident that Roeder and the CWA Local 1033 Executive Board are filing a frivolous suit not “for the sake of suing” but rather as a means to campaign using the local’s funds, equipment and premises to file said suit and send out notices. It is further complained that there was a “withholding [of] information necessary for the effectuation of current policy or the achieving of important objectives of the Union” by the members voting on this measure because of the absence of input from a non-existent member democratic participatory legislative-political committee. Your attention is directed to IMO Solis vs CWA, or more aptly Katz vs. CWA (hereinafter “Solis”), which is very instructive in the review of the following and attached hereto. Exhibit E. The Solis Court noted the purpose of Title IV, 29 U.S.C. 481, of the LMRDA is to ensure "’fair and democratic’ union elections.” SEC. 401 (g) provides, that: No moneys received by any labor organization by way of dues, assessment, or similar levy, and no moneys of an employer shall be contributed or applied to promote the candidacy of any person in an election subject to the provisions of this title. Such moneys of a labor organization may be utilized for notices, factual statements of issues not involving candidates, and other expenses necessary for the holding of an election. The implementing regulations and interpretative case law provides that nothing of value, no matter how nominal, from the union or employer may be used to campaign. In determining whether a written communication constitutes campaign material, courts consider whether the tone, content and timing of the written communication effectively encourages or endorses any person's candidacy. The tone of the lawsuit: specifically naming the incumbents as plaintiffs strongly suggest requirement of another term in office to see the litigation through; conflicts with the Union’s positions, and; subsequent mailings “during the summer months we will keep you apprised of the progress of the pension lawsuit and how you can help,” is promotional of the incumbents’ candidacy slogan of purportedly “Fighting” for the members. Simply stated, encouraging members to vote for the Roeder slate to continue the litigation. Likewise, the content of subsequent mailings during the summer months will be calculated to solicit votes for the incumbents during their “Fight” with the State of New Jersey---even though this local union and individuals as plaintiffs are not the authorized representatives of the contract between the State and Union. Similarly, the timing of the lawsuit and subsequent mailings will be calculated to occur up to and during the election. It is crystal clear that the Roeder slate is campaigning. It is further evident that the Roeder slate is misappropriating local union funds. Moreover, this local and union could be brought into disrepute by it’s own members and other unions if the Local 1033 Executive Board filing of this suit results in a negative precedent, that would foreclose further legal actions by the collective state employee unions. The Appointment of Peter Maurer as Chairman of the Election Committee Local 1033’s Executive Board is predictable, reappointing Peter Maurer as Chairperson of the Local 1033 Elections Committee to once agree preside over an election ruled by decree of the Board as opposed to the constitution. Complainants vehemently protest this appointment, as it is anticipated that Maurer will once again permit inadequate safeguards that violates the secrecy of ballots as in past elections, permitting: 1. Ballots maintained at the local, accessible by the incumbents. In Soltis, violation of Title IV was alleged in conducting elections at the 2008 CWA Convention without adequate safeguards to ensure the secrecy of ballots cast by the voting delegates. 2. Failure to enforce the prohibition against campaigning using the local unions funds, equipment and premises by the incumbents as alleged herein; 3. Failure to enforce the prohibition against campaigning using the employers funds, equipment and premises by the incumbents; 4. Failure to confirm security of the ballots at the Post Office; 5. Serial numbers on the ballots, cross-indexed to identify the member. As noted in Solis “Courts interpreting the LMRDA's secret ballot requirement have generally construed the statute strictly, requiring unions to take strict precautions to ensure the secrecy of ballots cast in union elections….the court invalidated an election conducted by mail with perforated ballot forms whereby the voters signed their names on the top part of the ballot and cast their vote on the bottom half, with the votes tallied by a third-party administrator. Although it was undisputed that the administrator maintained secrecy in its processing of the ballots, the court found an LMRDA violation because the voters could not be certain who might see their names connected with their votes. "Any post- voting device by which it can be determined how a particular voter voted would be a violation of secrecy (such as signatures or other identifying marks on the ballot, or extracting each ballot from the ballot box and examining it immediately after it has been cast)." 6. As discussed in Soltis, permitting observers to observe the serial numbers on the ballots and permitting the incumbent to take notes during the tallying of the votes violates ballot secrecy. 7. In the nomination of officers, limiting members to signing only one (1) candidate’s petition for a particular office. 8. Permitting the incumbents to call members on their work phones, a nominal employer expense, from a members list and denying challengers equal access to a members list, ruling that the incumbents could have obtained the information online. 9. Reversing the standard of proofs noted in Solis as to whether a violation could have affected the outcome of an election where “once a violation of the LMRDA has been proved by a preponderance of the evidence, a prima facie case that the violation "may have affected" the outcome is established…and [t]he union then has the burden of providing evidence demonstrating that the violation did not affect the election.” 10. Complainant Averhart is aware that Roeder somehow knows who, when and how members vote because Roeder questioned him on several occasions to why he had not voted in the 2002 Officer Election. The complainant never cast his vote in the 2002 election. The latter actions complained of are issues before a court for declaratory judgment and it is anticipated that Mr. Maurer will be named as a defendant. It is further anticipated that Mr. Maurer (and the other named defendants) will be less inclined to maintain the status quo if enjoined from expending union funds for their personal defense, prior to a full determination on the merits of the case. AFFIRMATION The signees aver that the charges and complaints herein, are true to the best of their knowledge and are filed in good faith. This complaint is filed directly with the CWA Union President and Secretary-Treasurer, pursuant to Art. XX, Section 2 (a) and Internal Appeals Procedures I B., where the complained of actions are against Local 1033 Officers and Executive Board and where good cause has been shown of a willful refusal by this governing body to comply with the CWA Constitution. REMEDY It bears repeating that the continuing egregious conduct of Local 1033 justifies a lawsuit or other measure to recover damages, secure an accounting and/or other appropriate relief, such as placing Local 1033 under the supervision of a Temporary Administrator in accordance with Article XIII, § Section 8 of the CWA Constitution (“Constitution”), until such time as this Local can be fully restored to a functioning democratically governed Local, as proscribed and intended by the Constitution, Local 1033 By-laws and Title I. Effectuated pursuant to Article IX—Executive Board, Sections 4 and 8, where the CWA Executive Board is empowered too: (b) Remove any officer of a Local only on clear proof of fraud or dishonesty after sworn charges have been made and after a fair trial and opportunity for appeal as provided in this Constitution; (e) Cause an inspection to be made of the financial records of any Local and order an independent audit of the books of any Local when convinced that such audit is necessary and proper to protect the membership of the particular Local and the interest of the Union and to publish to the members affected the results of such audit; the cost of such audit to be borne by the Union; (2) When the Executive Board has received written charges that the Officers of a Local are withholding from their members information necessary for the effectuation of current policy or the achieving of important objectives of the Union; or (3) When a Local is pursuing a course of action which, if continued, would warrant its expulsion or the appointment of a temporary administrator as provided in Article XIII; On behalf of the membership of Local 1033 the complainants implore this Union to appoint a Temporary Administration pending completion of a just cause forensic audit of the books of Local 1033, and; a fair trial be conducted on this complaint and previous charges/complaints and where probable cause is found, responsible Local 1033 Executive Board Members be appropriately sanctioned. CONCLUSION For all the foregoing reasons and complaint/charges of record, the remedy requested is long overdue to effectuate the primary directive of union democracy, a fair and democratic election. We end with the admonishment of former State Senator Peter Inverso, Be Careful What You Wish For. Exhibit F. /s Jesse J. Averhart /s/ Mary R. Walker /s/ Dona M. Varga |
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