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
RE: ELECTION OBJECTIONS
Peter Maurer, Chairman
CWA Local 1033 Election Committee
321 West State St.
Trenton, New Jersey 08618
Dear Mr. Maurer:
The undersigned complainants submits the following election objections in response to the 2011 Local 1033
Officers Election Procedures, post dated July 8, 2011 and received by complainants on July 11, 2011.
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 foreseeable machinations, and is attached hereto. Exhibit A.
FIRST OBJECTION – TO THE APPOINTMENT OF ALL PREVIOUS
ELECTION COMMITTEE MEMBERS AND EMPLOYEES OF THE LOCAL
Complainants’ vehemently object to appointment of all previous appointees to the Election Committee. It is believed
that members of this committee relied upon the directions of the Chairman, Peter Maurer - a retired member and
resident of the State of Delaware, imported and paid patronage for more of his surreptitious expertise.
However, the remaining members of the committee remain responsible and culpable for their acts thereto. Based
upon incompetence or partisan support for the incumbents, the Election Committee acts or lack thereof resulted in
a failure in 2005 and 2008 to provide for “fair and democratic” local union elections.
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
union funds, equipment and premises by the incumbents;
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, where there is
access to the ballots;
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 processing 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 use local union phones (prohibited in the notice) to
call members on their work phones (a nominal employer expense), from a member list,
and denying challengers equal access to a member 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.
11. Notwithstanding all of the above, this Committee has steadfastly
refused to recommend or entertain the idea of having this election
conducted by a third party vendor.
The direct conflict of interest of appointing employees to the election committee, especially the chairperson, is
prima facie evidence of an anti-democratic election. Obviously, these types of appointments have a vested interest
in the outcome of the election for the incumbents to win to maintain their employment with the local.
These issues are presently before a court of law for declaratory judgment and damages. The Election Committee
members will be named as defendants for failure to perform fiduciary duties entrusted to them. It is further intended
that all named defendants be enjoined from expending union funds for their personal defense, prior to a full
determination on the merits of the case. To wit, it is a breach of legal ethics for union counsel to represent both the
union and individual defendants where conflicts of interest exist. Simply stated, the conflict is that the union’s
interest is to provide for a fair and democratic election and defendants have breached their fiduciary duties to
ensure same, and therefore are required to pay for their legal defense out of their own pockets.
SECOND OBJECTION – FAILURE TO GIVE FULL NOTICE OF
MEMBERS’ RIGHTS TO NOMINATE CANDIDATES AND ELECTION RIGHTS
The Election Committee 2011 Local Officer Election Procedures notice is superficial and apparently in conflict with
previous decree rulings by this committee noted above, therein declaring:
All union elections must be conducted in accordance with federal labor law.
Federal labor law provides for the protection of Union members as they relate
to the members’ participation in the election process. It is the responsibility
of the Elections Committee to ensure that these rights are protected through-
out the entire [election] process.
The precise “federal labor law” referred to is a mystery. Please allow us to briefly solve the mystery and lay the
foundation for our objections.
The Labor Management Reporting Disclosure Act (LMRDA) is the “federal labor law” referenced. Congress enacted
this Act to address corruption in private sector labor organizations.
Nonetheless, it has been adjudged that members of public worker only locals of a mixed union (comprising both
private and public worker locals) are protected per the Bill of Rights in Title I of the Labor Management Reporting
Disclosure Act (“LMRDA”), 29 U.S.C. § 411, SEC. 101 (“Title 1”). Title I, SEC. 101. (a)(1) (which) secures equal
rights and privileges as private sector locals to: nominate candidates and to vote in elections.
Though Title I is general, courts have cross-referenced general violations therein to the more specific coverage
contained in Titles 2 through 5. In essence, aggrieved 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 local union and parent union must provide the equal rights and privileges contained in Titles 2
through 5 by adopting same in the by-laws and/or constitution, respectively.
Moreover, Title I, SEC. 101. (b), 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.”
Further, the LMRDA requires that each labor union "inform its members concerning the provisions of" the Act. Id. §
415. Members should be informed of the differentiation of public worker and private worker rights under the Act.
Notwithstanding, complainants’ submit that the provisions of Title 2 through 5 exist in the current constitution and
by-laws. However, these provisions are ineffective because they are not enforced.
Thus, based upon the equal rights secured in Title I, one must look to the interpretations of Title IV, whose purpose
was noted by the Solis Court is to ensure “’fair and democratic’ union elections.”
THIRD OBJECTION – THE REQUIREMENT OF 200 SIGNATORIES DEFIES DEMOCRATIC PROCEDURE AND IS
UNREASONABLE
The 2011 Local Officer Election Procedures notice and 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 has been exaggerated 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 and a glaring 166% increase in importance of nominating officers as compared to
conducting union business.
In Donovan v. CSEA Local Union 1000, American Federation of State, County & Municipal Employees, 761 F.2d
870, 875 (2d Cir.1985), the court reasoned that:
Inherent in any organization are factors that impede the exercise of free choice and contribute to the
ability of those in power to maintain control…..those challenging incumbent union leaders are often
viewed as disloyal to the union. In addition, control over the union's bureaucracy enjoyed by union
leaders gives them an opportunity to perpetuate themselves through the dispensation of patronage.
Moreover, power over the channels of communication, while subject to restrictions, is another means
of maintaining power. The tight grasp of incumbent leaders should be recognized when a court
interprets LMRDA union election requirements so that opposition voices can be heard and their weight felt.
“The tight grasp of [Local 1033] incumbent leaders should be recognized,” based upon their behest to the Election
Committee to increase the number of signatories to 200 in the 1999 or 2002 election for the four primary officers.
The number of signatories for eligibility to run for the remaining offices remained the same:
Vice-Presidents:
Admin/Clerical - 60 Professional - 25
Primary level Supervisory - 25
Higher Level Supervisory - 5
Area Representatives - 30
Indeed, the union defendants in Donovan represented 200,000 members, requiring 3800 signatures, 1.09% of the
membership. The union voluntarily dropped the requirement to 1000, .5% (1/2 percent), which the court determined
was “sufficient.”
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, and the remaining officer positions, and
“tight grasp of incumbent leaders,” 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
made the task of obtaining the required 200 signatures much more difficult. This requirement was surreptitiously
removed for the 2008 officer election.
The complainants and members of Local 1033 are entitled to a fair and democratic local union election. As such,
the provisions of Election Committee 2011 Election of Officers Procedure notice and Local 1033 By-laws requiring
200 signatures on a petition ballot is democratically unreasonable 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.
FOURTH OBJECTION – THE ELECTION COMMITTEE IS INEPT
IN PROVIDING FOR A FAIR AND DEMOCRATIC ELECTION
The Committee merely parrots, “All union elections must be conducted in accordance with federal labor law…
[these] law[s] provides for the protection of Union members as they relate to the members’ participation in the
election process. It is the responsibility of the Elections Committee to ensure that these rights are protected
throughout the entire [election] process.”
From the outset, this Election Committee was rendered inept or incapable of taking effective action to ensure a fair
and democratic election upon objections raised on appeal, noting under Appeals:
E. Appellant will bear the burden of proof; however, Appellant may request a
synopsis of the Local’s positions and evidence in advance of the hearing.
G.The Elections Committee possesses NO power to require the production of any of the above evidence.
Basically, the Local’s position, more aptly the incumbents’ actions by decree, is unassailable before this committee,
as it has been in past elections.
The ineptness of this committee is democratically unreasonable on its face and violates the Constitution, Bylaws
and Title I of the LMRDA. Democratic procedures demand that the Local 1033 Executive Board empower this
committee and appoint competent members with the wherewithal to perform commensurate fiduciary duties to
ensure a fair and democratic election.
FIFTH OBJECTION – CAMPAIGNING BY THE ROEDER
SLATE USING UNION FUNDS, EQUIPMENT AND PREMISES
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.”
It is further noted that the incumbents, Rae Roeder, Anthony Miskowski and Dennis Reiter are named as plaintiffs in
this lawsuit.
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.”
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.
Pursuant to the Constitution, Article XVII, CWA negotiates collective negotiation agreements, implements and
maintains those agreements, handles labor disputes, grievances and arbitrations on behalf of local unions and
coordinates labor relations matters with other unions.
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, personnel, equipment and premises.
Title IV, 29 U.S.C. 481, 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 provide 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 using local union funds, personnel, equipment and premises.
This prohibition is duly pronounced in the 2011 Officer Election Procedures. Therefore, the Election Committee
should immediately notify all members of these violations and disqualify responsible Executive Board members from
running in the 2011 Officer Election. Absent same, all opposing candidates for elective office for Local 1033 would
be irreconcilably prejudiced by said violation.
SIXTH OBJECTION – DENYING MEMBERS OF THIS LOCAL THE RIGHT TO VOTE VIOLATES THE
CONSTITUTION, LOCAL BY-LAWS AND TITLE I
The Election procedure admonishes: “members are advised to notify the Local of any change of address before
member election packets are mailed in mid-October. Returned member election packets will not be re-mailed and
may result in your not being able to vote.”
The question is whether the Local made “reasonable efforts” to update home addresses of Local members.
On July 12, 2011, complainants’ received notice from an ad hoc Local Membership Committee, purportedly chaired
by the local’s staff secretary, Patricia Stetler, requesting members update their mailing addresses. This is the first
time complainants have received such notice.
In Chao v. HERE Local 54, 166 F.Supp.2d 109 (D.N.J. 2001), this court reviewed a variety of steps taken by the
union took to keep its mailing list updated, and concluded that they were insufficient under the LMRDA. The court
held that “while periodically reminding members to supply current address information and providing them with
opportunities to do so is necessary to supplement any effort to maintain current mailing lists, such general
reminders cannot substitute for a systematic procedure for obtaining up-to-date address information on a periodic
basis.”
Thus, the Local’s feeble effort by an ad hoc committee to rectify ongoing failures falls far short of the mark.
Consequently, the Election Committee may not by fiat or decree deny members the right to vote, due to the failures
of the Local to maintain a “systematic procedure for obtaining up-to-date address information on a periodic basis.”
SEVENTH OBJECTION
ELECTION SAFEGUARDS BY THIRD PARTY ELECTION VENDOR .
Based upon all of the foregoing it is evident that a fair and democratic election cannot be conducted in-house,
providing more than sufficient reason to outsource this election to a third party vendor.
Moreover, the Election Committee should acknowledge that they cannot perform their duties under present
conditions and request that the Union appoint a Liaison as Election Chairman of the Local’s Election Committee and
requiring that said election be conducted by a third party election vendor to preclude:.
1. Ballots being maintained at the Local where they are accessible by the incumbents.
2. No identifying marks on the ballots.
3. An authenticated membership list maintained by a third party vendor prior to this local election to preclude ballot
stuffing, deceased member voting, non-member voting, over voting, and other methods in which to steal union
elections by the incumbents.
The third party vendor sends out coded envelopes containing the election ballots only to eligible members.
4. The membership list should be authenticated and a copy maintained at the CWA NJ office.
5. Any election violation which could have affected the outcome of the election should automatically halt the
election process or rescind the election and require that violators are ineligible to re-run.
6. Immediately after a union election, the ballots must be automatically retained by the CWA NJ Office. This
eliminates the never ending controversy of whether the incumbents altered the election records to reflect their
version of events subject to fraud.
CONCLUSION
Anticipating a lack of objectivity and temerity to invoke federal standards parroted by the Election Committee in
conducting a fair and democratic 2011 Officer election, a supplemental complaint based upon Title I will be sought
to enjoin these proceedings and to seek a court appointed monitor to ensure the members of this local a fair
election.
/s Jesse J. Averhart /s/ Mary R. Walker /s/ Dona M. Varga
c. Larry Cohen
Jeff Rechenbach
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
RE: ELECTION OBJECTIONS
Peter Maurer, Chairman
CWA Local 1033 Election Committee
321 West State St.
Trenton, New Jersey 08618
Dear Mr. Maurer:
The undersigned complainants submits the following election objections in response to the 2011 Local 1033
Officers Election Procedures, post dated July 8, 2011 and received by complainants on July 11, 2011.
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 foreseeable machinations, and is attached hereto. Exhibit A.
FIRST OBJECTION – TO THE APPOINTMENT OF ALL PREVIOUS
ELECTION COMMITTEE MEMBERS AND EMPLOYEES OF THE LOCAL
Complainants’ vehemently object to appointment of all previous appointees to the Election Committee. It is believed
that members of this committee relied upon the directions of the Chairman, Peter Maurer - a retired member and
resident of the State of Delaware, imported and paid patronage for more of his surreptitious expertise.
However, the remaining members of the committee remain responsible and culpable for their acts thereto. Based
upon incompetence or partisan support for the incumbents, the Election Committee acts or lack thereof resulted in
a failure in 2005 and 2008 to provide for “fair and democratic” local union elections.
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
union funds, equipment and premises by the incumbents;
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, where there is
access to the ballots;
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 processing 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 use local union phones (prohibited in the notice) to
call members on their work phones (a nominal employer expense), from a member list,
and denying challengers equal access to a member 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.
11. Notwithstanding all of the above, this Committee has steadfastly
refused to recommend or entertain the idea of having this election
conducted by a third party vendor.
The direct conflict of interest of appointing employees to the election committee, especially the chairperson, is
prima facie evidence of an anti-democratic election. Obviously, these types of appointments have a vested interest
in the outcome of the election for the incumbents to win to maintain their employment with the local.
These issues are presently before a court of law for declaratory judgment and damages. The Election Committee
members will be named as defendants for failure to perform fiduciary duties entrusted to them. It is further intended
that all named defendants be enjoined from expending union funds for their personal defense, prior to a full
determination on the merits of the case. To wit, it is a breach of legal ethics for union counsel to represent both the
union and individual defendants where conflicts of interest exist. Simply stated, the conflict is that the union’s
interest is to provide for a fair and democratic election and defendants have breached their fiduciary duties to
ensure same, and therefore are required to pay for their legal defense out of their own pockets.
SECOND OBJECTION – FAILURE TO GIVE FULL NOTICE OF
MEMBERS’ RIGHTS TO NOMINATE CANDIDATES AND ELECTION RIGHTS
The Election Committee 2011 Local Officer Election Procedures notice is superficial and apparently in conflict with
previous decree rulings by this committee noted above, therein declaring:
All union elections must be conducted in accordance with federal labor law.
Federal labor law provides for the protection of Union members as they relate
to the members’ participation in the election process. It is the responsibility
of the Elections Committee to ensure that these rights are protected through-
out the entire [election] process.
The precise “federal labor law” referred to is a mystery. Please allow us to briefly solve the mystery and lay the
foundation for our objections.
The Labor Management Reporting Disclosure Act (LMRDA) is the “federal labor law” referenced. Congress enacted
this Act to address corruption in private sector labor organizations.
Nonetheless, it has been adjudged that members of public worker only locals of a mixed union (comprising both
private and public worker locals) are protected per the Bill of Rights in Title I of the Labor Management Reporting
Disclosure Act (“LMRDA”), 29 U.S.C. § 411, SEC. 101 (“Title 1”). Title I, SEC. 101. (a)(1) (which) secures equal
rights and privileges as private sector locals to: nominate candidates and to vote in elections.
Though Title I is general, courts have cross-referenced general violations therein to the more specific coverage
contained in Titles 2 through 5. In essence, aggrieved 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 local union and parent union must provide the equal rights and privileges contained in Titles 2
through 5 by adopting same in the by-laws and/or constitution, respectively.
Moreover, Title I, SEC. 101. (b), 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.”
Further, the LMRDA requires that each labor union "inform its members concerning the provisions of" the Act. Id. §
415. Members should be informed of the differentiation of public worker and private worker rights under the Act.
Notwithstanding, complainants’ submit that the provisions of Title 2 through 5 exist in the current constitution and
by-laws. However, these provisions are ineffective because they are not enforced.
Thus, based upon the equal rights secured in Title I, one must look to the interpretations of Title IV, whose purpose
was noted by the Solis Court is to ensure “’fair and democratic’ union elections.”
THIRD OBJECTION – THE REQUIREMENT OF 200 SIGNATORIES DEFIES DEMOCRATIC PROCEDURE AND IS
UNREASONABLE
The 2011 Local Officer Election Procedures notice and 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 has been exaggerated 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 and a glaring 166% increase in importance of nominating officers as compared to
conducting union business.
In Donovan v. CSEA Local Union 1000, American Federation of State, County & Municipal Employees, 761 F.2d
870, 875 (2d Cir.1985), the court reasoned that:
Inherent in any organization are factors that impede the exercise of free choice and contribute to the
ability of those in power to maintain control…..those challenging incumbent union leaders are often
viewed as disloyal to the union. In addition, control over the union's bureaucracy enjoyed by union
leaders gives them an opportunity to perpetuate themselves through the dispensation of patronage.
Moreover, power over the channels of communication, while subject to restrictions, is another means
of maintaining power. The tight grasp of incumbent leaders should be recognized when a court
interprets LMRDA union election requirements so that opposition voices can be heard and their weight felt.
“The tight grasp of [Local 1033] incumbent leaders should be recognized,” based upon their behest to the Election
Committee to increase the number of signatories to 200 in the 1999 or 2002 election for the four primary officers.
The number of signatories for eligibility to run for the remaining offices remained the same:
Vice-Presidents:
Admin/Clerical - 60 Professional - 25
Primary level Supervisory - 25
Higher Level Supervisory - 5
Area Representatives - 30
Indeed, the union defendants in Donovan represented 200,000 members, requiring 3800 signatures, 1.09% of the
membership. The union voluntarily dropped the requirement to 1000, .5% (1/2 percent), which the court determined
was “sufficient.”
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, and the remaining officer positions, and
“tight grasp of incumbent leaders,” 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
made the task of obtaining the required 200 signatures much more difficult. This requirement was surreptitiously
removed for the 2008 officer election.
The complainants and members of Local 1033 are entitled to a fair and democratic local union election. As such,
the provisions of Election Committee 2011 Election of Officers Procedure notice and Local 1033 By-laws requiring
200 signatures on a petition ballot is democratically unreasonable 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.
FOURTH OBJECTION – THE ELECTION COMMITTEE IS INEPT
IN PROVIDING FOR A FAIR AND DEMOCRATIC ELECTION
The Committee merely parrots, “All union elections must be conducted in accordance with federal labor law…
[these] law[s] provides for the protection of Union members as they relate to the members’ participation in the
election process. It is the responsibility of the Elections Committee to ensure that these rights are protected
throughout the entire [election] process.”
From the outset, this Election Committee was rendered inept or incapable of taking effective action to ensure a fair
and democratic election upon objections raised on appeal, noting under Appeals:
E. Appellant will bear the burden of proof; however, Appellant may request a
synopsis of the Local’s positions and evidence in advance of the hearing.
G.The Elections Committee possesses NO power to require the production of any of the above evidence.
Basically, the Local’s position, more aptly the incumbents’ actions by decree, is unassailable before this committee,
as it has been in past elections.
The ineptness of this committee is democratically unreasonable on its face and violates the Constitution, Bylaws
and Title I of the LMRDA. Democratic procedures demand that the Local 1033 Executive Board empower this
committee and appoint competent members with the wherewithal to perform commensurate fiduciary duties to
ensure a fair and democratic election.
FIFTH OBJECTION – CAMPAIGNING BY THE ROEDER
SLATE USING UNION FUNDS, EQUIPMENT AND PREMISES
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.”
It is further noted that the incumbents, Rae Roeder, Anthony Miskowski and Dennis Reiter are named as plaintiffs in
this lawsuit.
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.”
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.
Pursuant to the Constitution, Article XVII, CWA negotiates collective negotiation agreements, implements and
maintains those agreements, handles labor disputes, grievances and arbitrations on behalf of local unions and
coordinates labor relations matters with other unions.
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, personnel, equipment and premises.
Title IV, 29 U.S.C. 481, 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 provide 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 using local union funds, personnel, equipment and premises.
This prohibition is duly pronounced in the 2011 Officer Election Procedures. Therefore, the Election Committee
should immediately notify all members of these violations and disqualify responsible Executive Board members from
running in the 2011 Officer Election. Absent same, all opposing candidates for elective office for Local 1033 would
be irreconcilably prejudiced by said violation.
SIXTH OBJECTION – DENYING MEMBERS OF THIS LOCAL THE RIGHT TO VOTE VIOLATES THE
CONSTITUTION, LOCAL BY-LAWS AND TITLE I
The Election procedure admonishes: “members are advised to notify the Local of any change of address before
member election packets are mailed in mid-October. Returned member election packets will not be re-mailed and
may result in your not being able to vote.”
The question is whether the Local made “reasonable efforts” to update home addresses of Local members.
On July 12, 2011, complainants’ received notice from an ad hoc Local Membership Committee, purportedly chaired
by the local’s staff secretary, Patricia Stetler, requesting members update their mailing addresses. This is the first
time complainants have received such notice.
In Chao v. HERE Local 54, 166 F.Supp.2d 109 (D.N.J. 2001), this court reviewed a variety of steps taken by the
union took to keep its mailing list updated, and concluded that they were insufficient under the LMRDA. The court
held that “while periodically reminding members to supply current address information and providing them with
opportunities to do so is necessary to supplement any effort to maintain current mailing lists, such general
reminders cannot substitute for a systematic procedure for obtaining up-to-date address information on a periodic
basis.”
Thus, the Local’s feeble effort by an ad hoc committee to rectify ongoing failures falls far short of the mark.
Consequently, the Election Committee may not by fiat or decree deny members the right to vote, due to the failures
of the Local to maintain a “systematic procedure for obtaining up-to-date address information on a periodic basis.”
SEVENTH OBJECTION
ELECTION SAFEGUARDS BY THIRD PARTY ELECTION VENDOR .
Based upon all of the foregoing it is evident that a fair and democratic election cannot be conducted in-house,
providing more than sufficient reason to outsource this election to a third party vendor.
Moreover, the Election Committee should acknowledge that they cannot perform their duties under present
conditions and request that the Union appoint a Liaison as Election Chairman of the Local’s Election Committee and
requiring that said election be conducted by a third party election vendor to preclude:.
1. Ballots being maintained at the Local where they are accessible by the incumbents.
2. No identifying marks on the ballots.
3. An authenticated membership list maintained by a third party vendor prior to this local election to preclude ballot
stuffing, deceased member voting, non-member voting, over voting, and other methods in which to steal union
elections by the incumbents.
The third party vendor sends out coded envelopes containing the election ballots only to eligible members.
4. The membership list should be authenticated and a copy maintained at the CWA NJ office.
5. Any election violation which could have affected the outcome of the election should automatically halt the
election process or rescind the election and require that violators are ineligible to re-run.
6. Immediately after a union election, the ballots must be automatically retained by the CWA NJ Office. This
eliminates the never ending controversy of whether the incumbents altered the election records to reflect their
version of events subject to fraud.
CONCLUSION
Anticipating a lack of objectivity and temerity to invoke federal standards parroted by the Election Committee in
conducting a fair and democratic 2011 Officer election, a supplemental complaint based upon Title I will be sought
to enjoin these proceedings and to seek a court appointed monitor to ensure the members of this local a fair
election.
/s Jesse J. Averhart /s/ Mary R. Walker /s/ Dona M. Varga
c. Larry Cohen
Jeff Rechenbach
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