Protest Decisions

IN RE: PHILIP DEPIETRO,
Protest Decision 2001 EAD 324
Issued: April 20, 2001
OEA Case No. PR032613MW

See also Election Appeals Master decision 01 EAM 62 (KC)

Philip DePietro, a member of Local 773, filed a pre-election protest pursuant to Article XIII, Section 2(b) of the Rules for the 2000-2001 IBT International Union Delegate and Officer Election ("Rules"). He alleges that Local 773 president and delegate candidate Dominick Buscemi and Local 229 secretary-treasurer John Monahan violated the Rules when a March 21, 2001 letter from Monahan to Buscemi on Local 229 letterhead was written by Monahan, obtained by Buscemi and distributed as campaign literature by Buscemi and those acting on behalf of his Team 2000 for Hoffa slate (the "TH slate").

Election Administrator representative William Kane investigated the protest.

Findings of Fact

Local 773 delegate election ballots were counted on April 12, 2001. Three slates contested the election: Buscemi's TH slate, the "Working Teamsters for Tom Leedham Team" slate (the "WT slate")[1] and the "Rank and File for Hoffa" slate (the "RF slate"). Three independents also ran for delegate. Five delegate and five alternate seats were at stake.

One of the campaign issues in the election related to the participation of Local 773 (along with several other Pennsylvania IBT locals) in the "Central PA Teamsters Pension Fund" (the "fund"). Members at Local 773 and other participant locals have for some time been critical of the management of the fund, claiming that IBT Local 429 has dominated it. On June 15, 2000, the principal officers of several of the participant locals, including Buscemi and Monahan, brought internal union charges against Local 429 and three fund trustees. They sought greater participation by locals other than Local 429 in the management of the fund. As a result of the charges, an agreement was reached in November 2000 whereby such increased participation was achieved and the charges were withdrawn.

Thereafter, during the course of the Local 773 delegate election campaign, flyers concerning the pension fund issue were circulated. The WT and TH slates criticized each other and their allies for not addressing the perceived problems with the fund. A WT slate flyer entitled "B.S. Alert" accused Buscemi of "refus[ing] to put any pressure to gain [ ] reform" in the fund. Specifically, the flyer claimed that "[w]hen [Buscemi] had the chance, he refused to join a lawsuit started by Scranton Local 229 to gain this reform. Despite the lack of help from Buscemi, several of the OTHER Eight City Presidents were able to push in this much needed reform in the Central PA Pension Fund." (Emphasis in original.)

After this flyer was circulated, Buscemi and Monahan discussed it by telephone. There is a dispute in the testimony of the two officials about how their dialogue was initiated. Buscemi says that Monahan phoned him and said he had heard that Local 229 had been referred to in Local 773 campaign literature and asked Buscemi to send him a copy, which Buscemi sent over by fax. Monahan says that Buscemi phoned him and asked Monahan if he had seen this campaign literature, and further says that he told Buscemi that he had not. According to Monahan, Buscemi then sent him a copy.[2]

Once Monahan received the flyer, both Monahan and Buscemi agreed that Monahan phoned Buscemi. According to Buscemi, Monahan asked Buscemi if he could respond, since Local 229 was so prominently mentioned in the flyer, and Buscemi agreed. According to Monahan, he asked Buscemi if Buscemi wanted Monahan to respond to what both saw as the inaccuracies in the B.S. Alert flyer, and Buscemi said he wanted Monahan to respond. However, says Monahan, he did not view Buscemi's conduct as soliciting a response.

As a result of the foregoing, Monahan authored a March 21, 2001 letter on Local 229 letterhead addressed to Buscemi as president of Local 773. The letter refers (but not by name) to the B.S. Alert flyer. It states that Local 229 was mentioned in the flyer, and refers to the flyer's claim that a lawsuit regarding the fund was "started by Local 229." It then says that "[t]his is totally without merit and untrue… [and that t]he facts are Local 229, along with the other seven Local's including Local 773 filed charges with the International Brotherhood of Teamsters and claimed that that the Officers and Trustees of Local 429 had failed their fiduciary responsibility to the members of" the fund.

Then, the letter refers to the fact that the flyer was published during a delegate election campaign, and states that in elections, "candidates can tell half truths and untruths to further their interests." The letter concludes:

But, you as Principal Officer of Local 773 stood shoulder to shoulder with all the other principal officers of the other seven Local Union's (sic) to demand that reform take place and a trustee be added to the Central PA Teamsters Pension Fund.

You have my permission to circulate this letter if you feel it will bring out the truth and the facts regarding this issue.

According to Monahan, the letter was intended solely to "set the record straight " and was not meant as an endorsement of Buscemi. Monahan told our investigator that he had no idea if the letter was used in the Local 773 delegate campaign.

Buscemi says that upon receiving the letter, he had one of the members of his slate take a copy to Staples, where 500 copies were made at slate expense. A receipt produced by Buscemi corroborates this, and there is no evidence that union resources were used in the reproduction of the Monahan letter. The receipt indicates that the 500 copies of Monahan's letter were run on March 22, 2001 at 2:55 a.m. The copies were reproduced on bright yellow paper and were thereafter distributed by Buscemi slate supporters at United Parcel Service and other worksites (such as freight companies under contract with the local) where members participate in and thus are concerned about the management of the fund. The local mailed its delegate election ballots on March 21, 2001. Protestor DePietro first became aware of the letter on March 23, when he saw a copy of the letter posted at a bulletin board at his workplace (Consolidated Freightways) and saw that members had copies of the letter as well.

Analysis

Our investigation here makes clear that union resources were used to support the campaign of Local 773 president Buscemi's delegate election slate. Thus, Monahan's letter was written on Local 229 letterhead and signed by Monahan in his capacity as principal officer of local. Moreover, despite Monahan's protestation, it is clear from the text of the letter that it was intended for use in the Local 773 delegate election, since the letter itself refers to that election and gives permission to candidate Buscemi to use the letter in the context of the election debate over the management of the pension fund.

That Buscemi's slate used its own funds to make the copies of the letter that were distributed does not negate the improper use of union resources in the solicitation and creation of the letter itself. Article XI, Section 1(b)(6) of the Rules provides that "[n]o Union funds or other things of value shall be used, directly or indirectly, to promote the candidacy of any individual. … The use of the Union's official stationery with the Union's name, insignia or other mark identifying the Union is prohibited, irrespective of compensation or access." The Rules' prohibition on using union stationery to promote a candidate is absolute. The protest accordingly has merit.

This protest is being considered in a post-election context. Therefore, the Election Administrator must consider whether the violation "may have affected the outcome of the election," under Article XIII, Section 3(b) of the Rules. A violation of the Rules alone is not grounds for setting aside an election unless there is a reasonable probability that the election outcome may have been affected by the violation. Wirtz v. Hotel Employees, Local 6, 391 U.S. 492, 507 (1968). While a violation creates a presumption that the outcome was affected, that presumption "may of course be met by evidence which supports a finding that the violation did not affect the result." Id.; Dole v. Mailhandlers, Local 317, 711 F.Supp. 577, 581 (M.D. Ala. 1989); see also Platt, Post-1 (March 14, 1996), rev'd on other grounds, 96 EAM 144 (March 29, 1996) ("To determine whether an effect exists, the Election Officer determines mathematically whether the effect was sufficient in scope to affect the outcome of the election and/or whether there was a causal connection between the violation and the result or outcome of the election."); Ford, 95 EAM 46 (December 20, 1995) (However, "where the benefit conferred by a violation is significant, and the vote outcome is close, the Election Officer need not find a definitive causal link between the two.")

The results of the election for five delegate and five alternate delegate seats were tallied April 12, 2001, and show as follows:

 Thus, the margin of victory between the successful delegate candidate with the fewest votes (Bartholomew of the TH slate) and the highest polling unsuccessful candidate from an opposing slate (Stauffer of the WT slate) is 202. Similarly, the margin between the successful candidate for alternate delegate who polled the fewest votes (TH's Lily) and the next candidate (WT's Fry) is 244.

The TH slate made 500 copies of the Monahan letter for distribution, and Buscemi acknowledged that the letters were distributed at UPS and other worksites where the pension fund was a significant issue. In the circumstances here, we conclude that the improper actions of Monahan, Buscemi and the TH slate were sufficient in scope to affect the outcome of the election for several reasons. First, a swing of 102 votes would have altered the outcome of the election. Second, a large number of copies of the Monahan letter were distributed at worksites that together employ hundreds of members, a target audience well in excess of the 102 vote difference between the winning candidate with the lowest vote and the losing candidate with the highest vote.[3]  Third, the distribution occurred just as ballots were arriving in the hands of voters, thus ensuring that the Monahan letter would have maximum impact, with the minimum opportunity for Buscemi's opponents to respond. And finally, the subject of the letter was an important issue in the campaign, and was thus likely to sway voters.[4]

Based on these factors, we find the improper conduct of Monahan, Buscemi and the TH slate may have affected the results of the election, and we accordingly GRANT the protest pursuant to Article XIII, Section 3(b) of the Rules.

Remedy

When the Rules have been violated, the Election Administrator "may take whatever remedial action is appropriate." Article XIII, Section 4. In fashioning the appropriate remedy, the Election Administrator considers the nature and seriousness of the violation, as well as its potential for interfering with the election process.

Because the impermissible conduct here may have affected the results of the election, we issue the following order:

1. Local 773 is directed to rerun its delegate election. The local is ordered to mail ballots on Monday, April 30, 2001 and conduct the tally of ballots on Tuesday, May 22. All candidates and slates that appeared on the original ballot will be listed in the same arrangement on the rerun ballot.

2. By April 25, 2001, Local 773 will post on all local hall and worksite union bulletin boards the notice attached to this decision as Exhibit A.

3. By April 25, 2001, the TH slate will pay to Local 229 the sum of $25.00 as compensation for the cost of creation of the Monahan letter using Local 229 resources.

4. By April 26, 2001, the local and the TH slate will submit an affidavit attesting to their compliance with paragraphs 2 and 3, respectively.

5. Buscemi, Monahan and the TH slate are each ordered to cease and desist from any further violations of the Rules.

An order of the Election Administrator, unless otherwise stayed, takes immediate effect against a party found to be in violation of the Rules. Lopez, 96 EAM 73 (February 13, 1996).

Any interested party not satisfied with this determination may request a hearing before the Election Appeals Master within two (2) working days of receipt of this decision. The parties are reminded that, absent extraordinary circumstances, no party may rely upon evidence that was not presented to the Office of the Election Administrator in any such appeal. Requests for a hearing shall be made in writing, shall specify the basis for the appeal, and shall be served upon:

Kenneth Conboy

Election Appeals Master

Latham & Watkins

Suite 1000

885 Third Avenue

New York, New York 10022

Fax: 212-751-4864

Copies of the request for hearing must be served upon all other parties, as well as upon the Election Administrator for the International Brotherhood of Teamsters, 727 15^th Street NW, Tenth Floor, Washington, DC 20005 (fax: 202-454-1501), all within the time prescribed above. A copy of the protest must accompany the request for hearing.

William A. Wertheimer, Jr.

William A. Wertheimer, Jr.

Election Administrator

cc: Kenneth Conboy

2001 EAD 324

NOTICE TO ALL MEMBERS OF LOCAL 773

The Rules for the 2000-2001 IBT International Union Delegate and Officer Election ("Rules") prohibit a candidate or slate from using union resources or union stationery to promote the delegate or alternate delegate candidacy of any person.

The Election Administrator will not permit any such violations of the Rules.

The Election Administrator has concluded that Local 229 Secretary-Treasurer John Monahan's March 21, 2001 letter on Local 229 letterhead, signed by Monahan in his official capacity, and the distribution of that letter among members of Local 773, improperly promoted the candidacy of Dominick Buscemi and the Team 2000 for Hoffa slate, in violation of the Rules.

To remedy this violation of the Rules, the Election Administrator has ordered Local 773 to rerun its delegate election. Ballots will be mailed on Monday, April 30, and counted on Tuesday, May 22. In addition, the Election Administrator has ordered Buscemi, Monahan and the Team 2000 for Hoffa slate to cease and desist from any further violation of the Rules.

Any protest you have regarding your rights under the Rules or any conduct by any person or entity which violates the Rules should be filed with William A. Wertheimer, Jr., Office of the Election Administrator, 727 Fifteenth Street, NW, Washington DC 20005, telephone 800-565-VOTE, fax (202) 454-1501.

William A. Wertheimer, Jr.

William A. Wertheimer, Jr.

Election Administrator

This is an official notice and must remain posted for thirty (30) consecutive days from the day of initial posting, and must not be altered, defaced or covered by any other material.

DISTRIBUTION LIST VIA AIRBORNE EXPRESS OR EXPRESS MAIL:

Patrick Szymanski

IBT General Counsel

25 Louisiana Ave. NW

Washington, DC 20001

Bradley T. Raymond

Finkel, Whitefield, Selik,

Raymond, Ferrara & Feldman

32300 Northwestern Highway

Suite 200

Farmington Hills, MI 48334

J. Douglas Korney

Korney & Heldt

30700 Telegraph Road

Suite 1551

Bingham Farms, MI 48025

Barbara Harvey

Penobscot Building

Suite 1800

645 Griswold

Detroit, MI 48226

Betty Grdina

Yablonski, Both & Edelman

Suite 800

1140 Connecticut Ave. NW

Washington, D.C. 20036

Tom Leedham c/o Stefan Ostrach

110 Mayfair

Eugene, OR 97404

Philip M. DePietro

Working Teamsters for Tom

Leedham Team

1282 Forest Road

Whitehall, PA 18052

Dominick Buscemi

Team 2000 for Hoffa Slate

c/o IBT Local 773

1345 Hamilton St.

Allentown, PA 18102

John Betz. Jr.

Rank & File for Hoffa Slate

3520 Station Avenue

Center Valley, PA 18034

Lee Suranofsky

122 E. Ettwein Street

Bethlehem, PA 18018

Kevin Wolfinger

265 Portzer Road

Quakertown, PA 18951

Arthur Bender

211 West Mountain Road

Wind Gap, PA 18091

William Kane

242 Old Haymaker Road

Monroeville, PA 15146