Mr. James Bodrato
Dear Brother Bodrato:
In your letter to me dated June 2, 2009, you stated your opposition to Local 363 Business Manager John Maraia’s challenge to your eligibility to seek the office of Local Union 363 Business Manager/Financial Secretary. Your letter stated that it was an appeal to me, but it also said that you were not aware that the Election Judge had made any decisions concerning your eligibility.
In my June 4 letter to you, I stated that I did not have sufficient time to complete an investigation of the issues concerning your eligibility before the June 23 election took place, and that I would therefore treat your letter as a post-election protest. On June 25, you inquired whether I needed anything more to consider your appeal, and on June 26 I replied that I needed nothing else, and that I hoped to reach a quick decision.
Before addressing the merits of these eligibility issues, I am aware of that fact that you resigned your position with the CCA on May 28 and that you no longer hold that position. However, in considering the question of your eligibility to be a candidate for and to hold Local Union office, the critical date is May 26, the date of nominations. On that date, you were still the Executive Director of the CCA.
As you have noted, Business Manager Maraia challenged your eligibility on the basis of your role as Executive Director of the Construction Contractors Association of the Hudson Valley, Inc. (CCA). It was his belief that in that capacity, you were acting as an indirect agent of the local NECA Chapter and/or NECA contractors. Although Brother Maraia cited Article XXV, Section 5 of the IBEW Constitution, I agree with you that his objections to your eligibility do not represent valid charges against you, and that this section of the Constitution is not applicable.
I am not a lawyer, and will not attempt to decide whether or not you were an agent in the legal sense. I note, however, that in CCA’s list of member “electrical and solar energy” contractors, twelve are listed, of which (by your own count) at least nine are NECA members. In addition, in your Executive Director’s message of November 2008, you stated that the CCA “works very closely with” a number of contractor associations, including the National Electrical Contractors Association. You added there that the CCA would develop “stronger management relationships with each of the employer associations…” That information strongly suggests that, whatever the formal legal term may be, you did act on behalf of NECA contractors and, to some extent, the NECA Chapter itself.
In any event, it is clear from the facts I have that , as CCA Executive Director you acted as an employer representative. There are a number of bases for that conclusion.
1. In your election materials, you stated that:
“I am currently [pre-May 28] the Executive Director of
Construction Contractors Association, where I bargain
with multiple unions. I also sit as an [employer] ERISA
trust fund trustee for the Carpenters, Laborers and
Masons-bricklayers Unions…”
2. The CCA bylaws provide, in Article VII, Section 5 that you exercised general supervision of the affairs of the Association, under the direction of the President and Board of Directors. In addition, Article XIV, Section 1, provides that:
“This Association shall through its best efforts encourage
Its members employing labor at the site of construction
to designate their respective bargaining rights to the
Construction Contractors Association of the Hudson
Valley, Inc.”
3. In the June 15, 2007, edition of Recordonline.com, the writer noted that your last job had been with the IBEW but that, as the new Executive Director of CCA, “the next time he (you) sits down at the bargaining table, he’ll be on the other side.”
4. The same online new service reported, on November 19, 2008, that you had been hired by the Fabricators, Reinforcers, Erectors and Reinforcers Contractors Association as its Executive Director.
5. In the May 30-31, 2009, edition of Midhudsonnews.com, the article noted your resignation from your position at the CCA, and added that ”a significant part of that job was dealing with, and negotiating contractors for the contractor members with labor organizations.”
The above information, from you, or which comes directly from CCA and online news services, reinforces my conclusion that you functioned as an employer representative in your role as CCA Executive Director.
Two provisions of the IBEW Constitution are applicable in this matter. First, Article XV, Section 5 of the IBEW Constitution provides as follows:
“Sec. 5. No L.U. shall allow any member who becomes
An electrical employer, or a partner in an electrical employing concern, to hold office in the L.U. or attend any of its meetings, or vote in any election of a L.U. The L.U. shall allow such a member to continue his membership in the L.U. or take a withdrawal card for deposit in the I.O.”
In addition, Article XXIV Section 1 of the Constitution provides that:
“Sec. 1. Any member who becomes a general manager or superintendent, or who retires from his trade, may apply to the F.S. for a withdrawal card. It shall require by a majority vote at a meeting to grant such a card. But the L.U. has the right to require such a member to take out a withdrawal card if it so decides.”
Both of these provisions reflect the Constitutions recognition of the need to avoid the inherent conflict between the interests of employers and employer representatives on the one hand, and those of the local union and its members on the other. Your role as CCA Executive Director is considerably above the status of a general manager or superintendent.
Also relevant is Part 452 of the U.S. Department of Labor Regulations, which deals with the election provisions of the LMRDA of 1959. Section 452.47 deals specifically with employer and supervisor members who are not eligible to serve as union officers. That provision notes that the reasonableness of a disqualification from holding office “depends on the particular circumstances” of each situation. It also states that “an overall consideration” in making that determination is “Whether there is a reasonable basis for assuming that the person involved would be subject to a conflict of interest in carrying out his representative duties for employees and rank and file union members.”
I believe there is more than a reasonable basis to conclude that your role as CCA Executive Director would conflict with the interests of IBEW Local Union 363.
The conflicting roles of CCA Director and IBEW Business Manager also can be found in the revised LM reporting requirements issued by the U.S. Department of Labor earlier this decade. Employers must report on the LM-10 Form financial contributions to unions and union officers in excess of $250.00 in a given year. Similarly, if an individual union officer receives such a financial benefit in excess of $250.00 in a given year. Similarly if an individual union officer receives such a financial benefit in excess of $250.00, that benefit must be reported on the individual officer’s LM-30 Form. Under the Department of Labor LM reporting Instructions, and given your role as CCA Executive Director, I believe that, if you had taken a Local 363 officer on a $255.00 golf outing, the CCA would have had to file an LM-10 Form for that expenditure, and the officer would have had to file an LM-30 Form. This is another indication of the conflicting interests of your role at CCA and those of the IBEW Local 363.
Based on all of the above, I conclude that, under the IBEW Constitution, as of the date of nominations, you were ineligible as an employer/employer representative to be a candidate for or hold office as Business Manager/Financial Secretary of IBEW Local 363.
Fraternally yours,
Donald C. Siegel
International Vice President
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