E-Mail & Cert. Mail, RRR
Jesse J. Averhart Mary R. Walker
23 North Lenape Ave. 333 W. State St., Apt-10L
Trenton, NJ 08618 Trenton, NJ 08618-5744
609-865-5431 609-433-3950
Dona Vargas
870 Route 130 North Apt. G-4
Burlington NJ 08016
August 23, 2011
Ralph Gerchak, District Director
U.S. Department of Labor, OLMS
New York District Office
201 Varick St., Room 878
New York, NY 10014
Dear Mr. Gerchak:
Please accept this letter as a formal complaint for investigation of:
1. Nomination and election of the 2011 Communications Workers of America (“CWA” or “Union”)
Executive Board by CWA Local 1033 (“Local”) convention delegates on or about July 14, 2011;
2. Whether there were adequate safeguards to insure a fair and democratic election, where rank and file
members had adequate notice and opportunity to seek Union Offices;
3. Whether there were adequate safeguards to insure a fair and democratic election by the rank and file
members of this union through their elected delegates;
4. Whether a violation of Labor-Management Reporting and Disclosure Act (“LMRDA” or “Act”) has been
committed or about to be committed;
5. Whether the Local procedures are adequate to remove officers guilty of serious misconduct, and;
6. Promulgation of rules and procedures for the nomination and election of Non-LMRDA reporting local
union officers/delegates and Union Officers.
A civil action is pending in the New Jersey federal district court alleging violations of Title I of the Act and
state contract laws in Jesse J. Averhart v. CWA, et al, Civil No. 10-6163 (AET).
The Title I action shall include all of the following protest of which OLMS may have concurrent jurisdiction,
except the Title IV post election protest of the 2011 nomination and election of Union Officers.
STANDARD OF REVIEW
Under Title IV, the Secretary has the exclusive authority to challenge in federal court an election already
conducted. See. §§ 482(b) & 483. A suit by the Secretary is the sole post-election remedy for challenging
union elections in federal court. Local No. 82, Furniture & Piano Moving, Furniture Store Drivers, Helpers,
Warehousemen & Packers v. Crowley, 467 U.S. 526, 549 (1984).
The Act provides that a union member may challenge an election believed to be held in violation of the
statute's fair election procedures by filing a complaint with the Secretary of Labor after exhausting internal
union remedies. See 29 U.S.C. § 482(a). The Local represents only public workers and therefore is not a
union within the meaning of the Act, however this Local falls within the Act:
[i]f [ ] a non-LMRDA local union elects delegates to attend a
convention held by an international parent labor organization that
consists of at least one LMRDA-covered local union, and such delegates
have the power to nominate and vote for officers of that international
organization, then the process by which the non-LMRDA local unions
elect delegates is regulated by the Act.
Chao v. Amalgamated Transit Union, 141 F.Supp.2d 13 (2001)
Section 401(a) of this section provides in pertinent part that:
[e]very national or international labor organization, except a federation of
national or international labor organizations, shall elect its officers not less
often than once every five years by secret ballot among the members in
good standing or at a convention of delegates chosen by secret ballot. 29
U.S.C. § 481(a).
Secret ballot as described in the Act:
means the expression by ballot, voting machine, or otherwise, but in no event by proxy, of a choice with
respect to any election or vote taken upon any matter, which is cast in such a manner that the person
expressing such choice cannot be identified with the choice expressed.
Further, unions that choose to elect their officers at a convention of delegates must conduct their convention:
in accordance with the constitution and bylaws of the labor organization
insofar as they are not inconsistent with the provisions of [Title VI of the
LMRDA]." Id. § 481(f).
§ 401(c) of the LMRDA also provides that:
[a]dequate safeguards to insure a fair election shall be provided. Id. § 481(c).
The CWA Constitution, Art. XV, §§ I and 2, provides in pertinent part that the named Officers: “…shall be
elected…by secret ballot…” and § 4 (e) “… delegates …shall be by secret ballot…”
2011 and 2014 NOMINATION AND ELECTION OF CWA OFFICERS
Complainants’ post-election protest is that the Local’s nominating and voting delegates, President Rae
Roeder and Executive Vice President Diane Spence-Brown, were not conducted with adequate safeguards
to ensure a fair election and secrecy of ballots during the Local Officer/Delegate Elections of 2008.
Complainants’ therefore protest the elections of: President Larry Cohen; Secretary Treasurer Annie Hill;
District 1 Vice President, Chris Shelton; Vice President of Public, Health Care and Education Workers
Brooks Sunkett and At-Large Executive Board Northeast Region Member Carolyn Wade. The election of
these individuals should be invalidated and the election re-run under the supervision of this office.
The below complained of violations that could have affected the outcome of the election in the 2008 Local
Officer Election were the subjects of appeals to the Union. All reviews were conducted in an arbitrary and
perfunctory manner premised on “procedural niceties” and included:
1. The conflict of interest in appointing employees of the Local as Chairman and committee members
of the Local Election Committee;
2. Maintaining blank ballots on the premises of the Local, readily accessible by the
incumbents/delegates (approximately 1800 members voted out of 5400 eligible voters, the most in the
history of this local during the 2005 and 2008 elections, purportedly, and; there was an increase in support
for the incumbent by almost 100% during this period;
3. Based upon the 2005 requirement that members could only sign one (1) one nominees petition for a
particular office for whom they supported carried over to the 2008 election, where members believed they
could sign only one (1) nominees’ petition.
4. Permitting the incumbents/delegates to use employer funds to take members off the job for
campaigning, purportedly for contract training, providing free movie tickets to attending members;
5. Permitting the incumbents/delegates to use local union funds, premises, equipment and
personnel, to take members off the job for campaigning, but purportedly for contract training and providing
free movie tickets to said attending members;
6. Permitting the incumbents/delegates to use employer premises, where equal access was denied
to the challengers;
'
7. Permitting the incumbent/delegates to use employer equipment to contact members during working
hours to campaign;
8. Permitting the incumbent/delegates to use local union funds to denigrate a challenger seeking
office, Doreen Griffin, before members within her area of representation;
9. Permitting failure of the incumbents/delegates to provide confirmation that the P.O. Box containing
the returned ballots would not be opened until they were picked up for tallying;
10. Permitting the incumbents/delegates to maintain ballots at the Local after the election;
11. Permitting failure of the incumbents/delegates to ensure that all members had equal opportunity to
vote;
12. Permitting the election to be conducted by incumbents’ ‘in-house’ rather than by a third party
vendor.
The pre-election protest is that the present, 2011 nomination and election of Local Officer/Delegates for the
nomination and election of CWA Officers in 2014 continues to be conducted without adequate safeguards
to ensure a fair election and secrecy of ballots..
The complained of violations that could affect the outcome of the election in the 2014 Election of Union
Officers by delegates includes to date all of the above and:
13. The un-democratic requirement of 200 member signatures on a candidates’ nominating petitions
adopted in the 2002 election, challenged here because of the deleterious carry-over effects of the 2005
requirement where members could only sign one nominee’s petition and below;
14. Requiring members to include the last 4 digits of their social security on nomination
petitions though not required by the constitution or bylaws and without adequate notice to the members,
making it extremely difficult for challengers to obtain the requisite amount of signatories, because members
are unwilling to sign or include this information because of concern with identity theft;
15. Denying members the right to vote if their mailed election packets are returned, the packets would
not be resent.
16. Protests have been filed with the Local Election Committee, with no response to date, and; the
Union, who summarily rejected these protest because of purported “procedural niceties.”
See attached chronological history of this matter dating back to 2005 thru the present, where all protests
were summarily dismissed without investigations, based upon “procedural niceties.”
Moreover, complainants’ protest the lack of notice of nomination and election of CWA Officers that denies
complainants or any other prospective candidate an opportunity to run for Union Office, and; failure of the
union to insure the fundamental exercise and pervading premise of Title IV of full and active participation by
the rank and file in the democratic affairs of this union through their elected local delegates’ participation in
the nomination and election of union officers.
This union represents 700,000 members. In the election for, e.g., Secretary Treasurer, Annie Hill received
276,769 votes and the challenger 94,733 votes, for a total of 371,502 votes cast. The latter total represents
only 53% of the membership participation through their delegates in the recent 2011 Union Officer Election,
disenfranchising 47% of the membership’s right to participant through their delegates, which could have had
an affect upon the outcome of the election.
Therefore, complainants’ protest the elections of all CWA Officers which should be invalidated and the
election re-run under the supervision of this office, with procedures put into place to insure participation by
elected delegates in the union officer nomination and election process.
INVESTIGATION OF THE OVERT DISREGARD OF THE
UNION CONSTITUTION BY THE UNION AND LOCAL
Pursuant to Title VI, § 601. (a), it is requested that an investigation be conducted in order to determine
whether any person has violated or is about to violate any provision of the overall Act, based upon the above
and the following.
What is the overt relationship between the Union and the Local, enabling the Local to systemically violate
the CWA Constitution over a period of 15 years, when said violations evoke the ultimate penalty of
revocation or suspension of the local’s charter at Art. XIII § (g), for:
Refusing or neglecting to conform to this Constitution or
the policies of the Union as set forth by the Convention.
Organizing represents a side of the triangle upon which this union was founded. Enshrined in the CWA
Constitution, chartered locals are mandated to organize the unorganized pursuant to Art. XIII—Locals,
Section 9:
(t) To maintain an active organizing program and budget monies to support the Local’s efforts as well as
assisting the Union in reaching a goal of 10% of resources to be spent on growth.
This mandate actively calls upon the Union to actively seek to represent employees of employers engaged
in an industry affecting commerce, and; the Local should be actively seeking to represent these employees,
within the LMRDA definition of:
(j) A labor organization shall be deemed to be engaged in an industry affecting commerce if it
3. has been chartered by a labor organization representing or actively seeking to represent employees
within the meaning of paragraph (1) or (2) as the local or subordinate body through which such employees
may enjoy membership or become affiliated with such labor organization;
Does this provision evoke LMRDA jurisdiction upon the Local? Is there a fiduciary and statutory duty to
organize as required by the constitution?
Ironically, the Local has not organized any member during the 15 year tenure of the present administration.
Complaints have been filed and arbitrarily and capriciously dismissed.
The only reasonable conclusion? This is a concerted effort to evade LMRDA oversight of the Local to violate
the following provisions of the Act:
Title II -- Outright refusal by the incumbents to provide financial disclosure of disbursements to the
membership beyond the generic monthly financial reports and annual audit report over a 15 year period.
Indeed, § 208 of the LMRDA, 29 U.S.C. § 438, provides:
The Secretary shall have authority to issue, amend, and rescind rules and regulations prescribing the form
and publication of reports required to be filed under this subchapter and such other reasonable rules and
regulations as he may find necessary to prevent the circumvention or evasion of such reporting
requirements.
See, Alabama Education Association v. Chao, 455 F.3d 386 (D.C. Cir. 2006), requiring reporting by
subordinate local union associations comprised of public employees chartered by a reporting parent union.
Although the civil action was subsequently withdrawn by the Solis Administration, complainants respectfully
request reconsideration of implementing this very important amendment in order to shed light on this
darkened area of underground union activity.
If what is occurring in the instant matter is any indication, under the radar non-LMRDA union corruption
activity is pervasive, considering that only 12% of the U.S. workforce is unionized and estimated that
government workers represent the majority. How many function in the manner of this Local by evading the
exact public policy for which the LMRDA was created to address, union corruption.
Public union members are reaching out to public entities, such as the National Right to Work Legal Defense
Foundation (“Right to Work”) for assistance or to become right to work states for relief from non-LMRDA
public worker union corruption. Indeed a public worker union member, Chris Mosquera, with the assistance
of this Foundation challenges the Secretary’s decision to withdraw this important public policy amendment.
Title III – The Union’s failure to bring this local under trusteeship in accordance with the constitution to
correct obvious corruption, restoring democratic procedures, or otherwise carrying out the legitimate
objectives of this union, pursuant to Art. IX § 4 (b) and (e), and (2) and (3).
Title V – The Local claiming to have expended monies on organizing over a 15 year period, when in fact no
monies were spent on organizing and therefore failing to hold members’ money and property solely for the
benefit of the organization and its members and to manage, invest, and expend the same in accordance
with the constitution.
Permitting the employment of an individual convicted of embezzling monies, and; possibly a host of other
unknown violations because there is no requirement under Title II to disclose financial disbursements for a
determination of whether these disbursements are for the sole benefit of members of this local.
Filed complaints and charges on all the above claims were adjudged variously as: improperly filed;
managerial prerogative by the Local, and/or; not filed “within sixty (60) days of the time the accuser becomes
aware of the alleged offense,” pursuant to the Constitution, Art. XX § 2 (b).
Complainant’s position was that the Local’s actions were not “managerial prerogatives,” but constitutional
violations that were continuous and ongoing with a constitutional remedy, without a limitation period,
available at Art. IX § 4 (d) (e), and; § 4 (3).
THE CONSTITUTION AND BYLAWS DOES NOT PROVIDE
ADEQUATE PROCEDURE FOR THE REMOVAL OF AN
ELECTED OFFICER GUILTY OF SERIOUS MISCONDUCT
Conversely, “ no statute of limitations will be applied in civil actions brought by the Government, unless
Congress explicitly imposes such time limitations.” Dole v. Local 427, 894 F.2d 607 (3rd Cir. 1990) (citing
Guaranty Trust Co. v. United States, 304 U.S. 126 (1938)).
In lieu of the extensive documentation presented in this matter, it is apparent that the union constitution and
local bylaws do not provide adequate procedures for the
removal of elected officers guilty of serious misconduct.
Therefore the complainants make application for the invocation of the provisions of Title IV § 40, if
applicable, where:
(h) If the Secretary, upon application of any member of a local labor organization, finds after hearing in
accordance with the Administrative Procedure Act that the constitution and bylaws of such labor
organization do not provide an adequate procedure for the removal of an elected officer guilty of serious
misconduct, such officer may be removed, for cause shown and after notice and hearing, by the members in
good standing voting in a secret ballot conducted by the officers of such labor organization in accordance
with its constitution and bylaws insofar as they are not inconsistent with the provisions of this title.
Local Officers, based upon good cause herein established, should be removed from office consistent with
the provisions of this section of the Act.
COMPLAINANTS’ PROPOSE RULES BE PROMULGATED
Minimally, complainants’ propose that the Union issue mandated rules and notice of federal laws affecting
the nomination and election of: Non-LMRDA Local Officers and Delegates elections that will be internally
reviewed by adopting and/or mirroring strict LMRDA reviews that invalidates elections where there are
violations of inadequate safeguards to insure a democratic election and secrecy of ballot which could have
affected the outcome of an election and sanction of prohibiting violators from running in said election, and;
sanctions against Locals’ whose delegates, without reasonable just cause do not participate in the
nomination and election of Union Officers.
The basis for the rules would be a reinforced CWA Constitution, as amended in conformity with an
agreement with the Office of Labor Management Standards that is similar to an agreement entered March
14, 1989 in the case of United States of America v. International Brotherhood of Teamsters, et al., 88 Civ.
4486 (DNE)(S.D.N.Y.), as amended, and all subsequent opinions, rulings and orders interpreting it, and;
notice of members’ rights under Title IV of the LMRDA.
EXHAUSTION OF THE UNIONS INTERNAL REMEDIES
An election protest, dated August 8, 2011 was filed with the union. On August 22, 2011 a response was
received, dated August 19, 2011, determining:
As you have been repeatedly told, a complaint against the Local Executive
Board must be filed with the “Local Secretary or Secretary-Treasurer,”
As you have also been told, a “complaint” under the CWA Internal Appeals
Procedures and a “charge” under Article XX of the CWA Constitution are
different procedures.
You appear to be complaining about the Local 1033 election held in 2008.
All appeals concerning that matter have been decided and are closed.
To the extent that you are attempting to file “Pre-Election Protests,” there is no procedure for
a pre-election protest under the CWA Constitution.
I will be taking no further action regarding your letter of August 8, 2011.
Section 402(a) of Title IV, requires a union member to have exhausted their union internal remedies. The
exhaustion requirement purpose “is to give a union an opportunity to remedy Title IV violations and thus
avoid unnecessary governmental intrusion.” Hodgson v. Local 6799, United Steelworkers, 403 U.S. 333,
338-39 (1971). However, "any interpretation of the exhaustion requirement must reflect the needs of rank
and file union members--those people the requirement is designed ultimately to serve." Id. at 340.
Consequently, the burden is placed upon the union to prove that they did not have sufficient notice of the
protest, where "members should not be held to procedural niceties while seeking redress within their union."
Id. at 341 n. 6.
See a similar circumstance to the instant matter in Reich v. Local 399, 3 F.3d 184 (7th Cir. 1993) (member
purportedly failed to comply with filing conditions of the Union Constitution, e.g., complaint not signed, filing
under the wrong Art. and other “procedural niceties,” to summarily deny the member redress within this
union). The point is whether the Union in the instant matter were adequately notified of the premise of the
election protest.
Moreover, it has been established that CWA has no internal appeals procedures to protest the election of
CWA Officers. See Solis v. CWA. Notwithstanding, it is evident that complainants have made “a reasonable
effort to bring this protest to the attention of union officials...includ[ing] specific information concerning all
LMRDA violations” under protest.
Further still, the record is replete with the union consistently taking a hostile position that is opposed to the
complainants and the constitution, and has shown no inclination to change their views. In essence, any
further appeal would have been and is futile.
CONCLUSION
Based upon the foregoing and extensive supporting documentation provided hereto, complainants’ believe
probable cause has been established for an investigation and pursuit of civil and/or criminal actions.
Thank you.
/s/ Jesse J Averhart /s/ Mary R. Walker /s/ Dona M. Varga
Jesse J. Averhart Mary R. Walker Dona M. Varga
c. Hon. Barack H. Obama, Jr., President of the U.S.
Hon. Hilda L. Solis, Secretary DOL
Richard Trumka, AFL-CIO
National Right to Work Legal Foundation
L. Cohen, CWA
A. Hill, CWA
C. Shelton, CWA
H. Rosenstein, CWA
Local Executive Bd/Election Com.