ORDER

This Order addresses the election protest of Darryl Sinoot ('Smoot") in the above captioned matter. Smoot originally protested that Pat Murphy ('Murphy"), a candidate for Vice President and Delegate to District Council in the Local 423 officer election held on June 6,1998, was improperly qualified for office because he had been convicted of a felony. Smoot later withdrew this portion of his protest and stated that Murphy' s conviction had only been a misdemeanor. Murphy was elected to both positions.

In a subsequent protest to The United States Department of Labor ("DOL"), it was discovered that Murphy had been convicted of a felony and therefore was prohibited from running in the election by Title 29 U.S.C, §504(a)- The DOL and Local 423 entered into an agreement that the election for Vice President would be rerun under the supervision of the DOL.

The agreement did not affect the election for Delegate to District Council. The DOL does not consider elections for the Delegate to District Council position to be within its jurisdiction.

I hold that 29 U.S.C. 4504(a) prohibits a member with robbery conviction from holding the
position of Delegate to District Council. Section 504(a) provides as follows:

No person ... who has been convicted of, or served any part of
a prison term resulting from his conviction of, robbery ... shall
serve or be permitted to serve

(2) as an officer, director, trustee, member of any executive
board or similar governing body, business agent, manager.
organizer, employee, or representative in any capacity of
any labor organization ...

(5) in any capacity, other than in his capacity as a member of
such labor organization, that involves decision making
authority concerning, or decision making authority over, or
custody of, or control of the moneys, funds, assets, or
property of any labor organization ...

... during or for the period of thirteen years after such
conviction or after the end of such imprisonment,
whichever is later ... No person shall knowingly hire,
retain, employ, or otherwise place any other person to serve
in any capacity in violation of this subsection. 29 U.S.C. §504(a)

On November 27, 1984, Murphy was convicted of robbery in the second degree, a felony under the New York Penal Code (N.Y. Penal Law 16010-2b). As a result of that conviction, Murphy was imprisoned until April 11, 1986. 1 find that Murphy was improperly qualified to run as Delegate to District Council.

Murphy's participation in The race certainly affected the outcome-of the election. As a result Murphy's presence in the race for Delegate to District Council necessitates the rerunning of the Delegate election. The election for Delegate to District Council shall be rerun for all seats which were to be filled by the June 6, 1998 election- The rerun election for Delegate to District Council will be run in conjunction with the rerun election for Vice President.

The rerun election for Delegate to District Council shall include a new nomination process open to all persons who quality.

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The Executive Board of Local 421 is directed to notify the membership of the rerun election for Delegate to District Council. If possible this announcement should be made in conjunction with any announcements regarding the rerun of the Vice President election.

PETER F. VAIRA
INDEPENDENT HEARING OFFICER

Date: November 25,1998
Darryl Smoot
Joe Motil
Alfred Dunning
Local Union 423
Ohio District Council
Jack Graczyk, DOL

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OFFICE OF THE INDEPENDENT HEARING OFFICER
LABORERS' INTERNATIONAL UNION OF NORTH AMERICA

Four Delegate seats were to be filled in the June 6,1998 election. Prior to the nomination meeting, the Executive Board determined that the Business Manager and the Secretary-Treasurer would automatically be selected as Delegates to the District Council by virtue of their office. The Executive Board properly combined the positions within Constitutional parameters.

As a result, the June 6 election included candidates for the combined Business Manager/Delegate and Secretary-Treasurer/Delegate positions. Two of the four available Delegate seats were determined automatically by the winners of the Business Manager and Secretary-Treasurer positions. An election was held for the remaining two District Council  seats.

Pat Murphy ('Murphy") was elected to one of the remaining District Council seats in the June
6 election. The United States Department of Labor and the IHO subsequently discovered that Murphy had been convicted of a felony and had therefore been improperly qualified for office. In the November 25 Order, I foumd that Murphy's participation in the election, affected the delegate election as a whole, and ordered a rerun of the delegate positions that were open in the June 6, 1998 election.
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While the two Delegate seats for the Business Manager and Secretary-Treasurer were also determined in the June 6 election, they were unaffected by Murphy's participation because they were automatically given to the Business Manager and Secretary-Treasurer. The Delegate seats given to the winners of the Business Manager and Secretary-Treasurer positions will not be rerun.

Since Murphy's participation affected the election for the two remaining positions, I hereby order those two positions rerun. The two seats which were open for any candidate to fill in the June 6, 1998 election shall be rerun in accordance with the November 25 Order.

PETER F VAIRA
INDEPENDENT HEARING OFFICER

Date: December 4,1998

Darryl Smoot
Joe Motil
Alfred Dunning
Local Union 423 (facsimile)
Ohio District Council (facsimile)
Jack Graczyk, DOL (facsimile)
Lawrence M. Oberdank, Esquire (facsimile)

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