Electioneering by union staff

A: Yes and no. Here’s the deal: the LMRDA prohibits the use of union resources to promote (or oppose) the candidacy of any particular candidate, unless the resources are made available to all candidates on an equal basis. For example, if one candidate gets to use the union xerox machine or postage meter, then every candidate gets to use it. If the president gets to make a campaign speech during a union meeting, then so also do the opponents. This should mean that if a union staff member, on union time or with union resources, campaigns for the incumbent president, it is a clear violation of the law.

Imagine a union business agent who visits a workplace, gives a speech about the virtues of the incumbent president, and hands out campaign literature. The BA’s actions would violate the law. But, in practice, they are not usually so blatant.

Here’s the problem. The Department of Labor (DOL) permits what they call “incidental” campaigning. This happens when a union officer or staff person, on union time, engages in campaigning incidental to the performance of their regular union duties. For example, if your business agent comes to the workplace to investigate a grievance, and then happens to get into a conversation with union members about the campaign, that’s not a violation. (The same is true of phone calls, if the primary purpose of the call is to discuss a grievance.)

If the BA also hands out campaign literature, that may cross the line. The DOL handles these complaints on a case by case basis, and it is often difficult to prove that the staff member’s actions were in violation of the law. You can imagine the gray areas that arise from the concept of “incidental” campaigning.

Getting back to the original question, what if the union staff member calls a member at home to campaign? Under what circumstances is it permitted?

If the staff member is a member of the union, s/he is entitled to campaign — just like any member — but not on union staff time (unless incidental to union business), and not with union resources. If there are any charges for the phone call and it’s made from the union office, that would violate the law. Even if the staffer is calling you on her/his own time, if s/he is using the union database, then that is probably a violation. The union’s list of its members’ phone numbers and addresses is a union resource. On the other hand, if the list is one that the staffer collected on her own, say prior to going to work for the union or by talking to members, there would be no violation. That’s what the staff member will probably claim; it can be hard to disprove such a defense.

If the staff member is not a member of the union, s/he is permitted to campaign on her or his own time, not with union resources, unless the union has language in the constitution or bylaws that bans non-members from campaigning.

Finally, there are some union resources, like an organizer’s car or cell phone, that may be considered “shared,” for example, where s/he is permitted to use the car for personal errands, or to make personal calls that are not billed to the union. The union staff is permitted to use shared resources in a union campaign, again, as long as the staffer is not using them while “on the clock,” and so long as their use is allowed by the terms of her/his employment agreement with the union.

Enforcement:
During or after the election, any member can file an internal union complaint, following the procedures in the union constitution or bylaws. If that doesn’t result in a favorable outcome within three months, the member can then file her/his complaint with the DOL. The DOL will then investigate and proceed with an enforcement action only if they determine that the violations were severe enough to have had an impact on the outcome of the election. While that can be difficult to prove in most situations, where the violation is use of union resources, it is generally not necessary to prove that the violation actually affected the outcome.

The moral? The best defense is a strong offense. If you are a candidate, make sure you build a strong grassroots campaign that will enable you to win, and win by a comfortable margin, despite LMRDA violations by your opponents. But, just in case, keep good notes on, and collect evidence of, suspected violations. You’ll need to be able to show: WHO did WHAT, WHEN, and WHERE? Don’t count on the DOL to find that evidence when they investigate your complaint. Collect documents and get written or tape recorded statements from witnesses, preferably eye witnesses, or a “deep throat” in the union. This is particularly critical when alleging improper use of union resources. Hand over your evidence to the DOL when you file your complaint.

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