Protest Decisions

Jimmy Martinez, member of Local Union 449 and candidate for alternate delegate, filed a pre-election protest pursuant to Article XIII, Section 2 of the Rules for the 2010-2011 IBT International Union Delegate and Officer Election ("Rules").   The protest alleged that the worksite list provided him by local union secretary-treasurer Ken Nelligan was inaccurate and did not include at least one worksite where Local Union 449 members were employed.

Election Supervisor representative Deborah Schaaf investigated this protest.

Findings of Fact

Local Union 449 is entitled to send two delegates and one alternate delegate to the IBT convention.   Two full slates of candidates were nominated for these positions.   Protestor Martinez was nominated for alternate delegate on the Generation Next slate.   That slate was opposed by the George Harrigan-Jeff Brylski No Dues Increase slate. Secretary-treasurer Nelligan was not nominated and was not heavily involved during the course of the campaign, as he was absent from the office of the local union for more than three weeks from January 22 to February 14, 2011.  

Ballots were mailed on February 3 and counted on February 24.   The three candidates on the Harrigan-Brylski slate prevailed by substantial margins.   In contrast, protestor Martinez tallied 269 votes and lost to his opponent for alternate delegate by 216 votes.

On January 14, candidate Martinez submitted a written request to Nelligan for a list of all current worksites where local union members were employed.   On January 20, Nelligan sent Martinez a letter informing him that he could pick up a copy of the list from a staff member at the local union office.   Martinez picked up the list some time after receiving the letter.

Martinez discovered the list was incomplete when he encountered a Local Union 449 member who said he was employed at LaFarge Corp., in Tonawanda, New York.   The protest itself states that Martinez then went to the LaFarge-Tonawanda location.   Thereafter, on February 17, 2011, Martinez filed the instant protest.

Nelligan acknowledged to our investigator that when he received the protest, he determined that the worksite list provided to Martinez was missing not only the LaFarge-Tonawanda location, but two other LaFarge plants in Lancaster and Buffalo, New York.   In addition, he noticed that the First Transit, Inc. site in Buffalo was also missing.   All of the missing worksites were added to the list and a complete document was provided to Martinez on February 22, the day Nelligan received the protest letter from OES.

Acknowledging the list was incomplete, Nelligan told our investigator that the LaFarge locations were not on the list because they are seasonal concrete plants, customarily closed during the winter.   However, although LaFarge-Buffalo was closed this winter, strong demand for concrete caused the company to operate the Tonawanda and Lancaster plants.   Nelligan provided no explanation for omitting First Transit from the list.

First Transit employs 65 Local Union 449 members, and the two operating LaFarge plants employ 41 members between them.

Nelligan reported that he learned from other members that the Next Generation slate was aware of the worksites not included on the first list because slate members had been seen campaigning at the worksites that were open and operating.   Local Union 449 vice president Michael Gerviss told our investigator he saw Martinez at First Transit on February 16.   Gerviss explained that he had arrived at First Transit that day for a 3:00 p.m. grievance meeting;   protestor Martinez was speaking with the steward when Gerviss arrived.   In addition, George Harrigan, local union president, said that several members employed at LaFarge-Tonowanda told him Martinez had previously campaigned at that site, as the protest itself acknowledges and as he confirmed to our investigator.  

Analysis

Article VII, Section 1(b) of the Rules grants "e ach delegate candidate, each alternate delegate candidate and each nominated or accredited International Officer candidate … the right to a current list of all sites, with corresponding addresses, where any and all Union members work."

In Viehland, 2006 ESD 271 (May 23, 2006), aff'd, 06 EAM 47 (June 21, 2006), we addressed the need for local unions to make accurate worksite lists available on request: 

The purpose of the Rules provision granting candidates access to listings of current worksites in a delegate election is to level the playing field between incumbent local union officer candidates and candidates who are rank-and-file members. Where the former group, because of their duties as union officials, should know where members work and can use that knowledge to campaign, rank-and-file challengers, whose most effective campaign technique is face-to-face contact in employee parking lots, must rely on the worksite list the local union provides to determine where potential voters can be found. A substantially inaccurate list … is equivalent to providing no list at all. It is no defense to a protest alleging a violation of this provision that a candidate should know which employers employ members and which do not.

We found that the local union in Viehland violated the Rules because the list it supplied had not been updated in five years and listed nearly twice as many worksites as actually existed.   In contrast, in McPartlin & Johnson, 2011 ESD 197 (April 4, 2011), aff'd, 11 EAM 36 (April 19, 2011), we found no violation where the list was compiled with requisite care, and the errors on it were inadvertent and did not prejudice the protestors because they located the sites and were able to campaign there.  

Although the list provided by Local Union 449 did not include all sites where local union members work, we find the omissions did not prejudice the protestor because he located the sites was able to campaign there.  

We consider this pre-election protest in a post-election context, pursuant to Article XIII, Section 2(f)(2).   Under these circumstances, we may consider and remedy a Rules violation only if it may have affected the outcome of the election.   As the margin by which Martinez lost is more than double the total number of members employed at the worksites that were omitted from the list the local union produced, we conclude that the failure to list those sites did not affect the outcome of the election.

Accordingly, we DENY this protest.

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 Supervisor 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
885 Third Avenue, Suite 1000
New York, NY   10022
Fax: (212) 751-4864 

Copies of the request for hearing must be served upon the parties, as well as upon the Election Supervisor for the International Brotherhood of Teamsters, 1801 K Street, N.W., Suite 421 L, Washington, D.C.   20006, all within the time prescribed above.   A copy of the protest must accompany the request for hearing.     

                                                                                    Richard W. Mark
                                                                                    Election Supervisor 

cc:        Kenneth Conboy
            2011 ESD 223

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Bradley T. Raymond, General Counsel
International Brotherhood of Teamsters
25 Louisiana Avenue, N.W.
Washington, D.C. 20001
braymond@teamster.org