April 5, 1996
VIA UPS OVERNIGHT
Steve Clark
14032 Hyland Road
Surrey, BC V3W 2C4
David P. Kozak, Secretary-Treasurer
Teamsters Local Union 464
490 E. Broadway
Vancouver, BC V5T 1X3
Re: Election Office Case Nos. P-516-LU464-CAN
P-627-LU464-CAN
Gentlemen:
This matter involves two protests concerning pre-election conduct filed by Steve Clark, a member of Local Union 464, pursuant to Article XIV, Section 2(b) of the Rules for the 1995-1996 IBT International Union Delegate and Officer Election (“Rules”). The protests have been consolidated for decision by the Election Officer. The Election Officer deferred her consideration of these protests until post-election pursuant to Article XIV, Section 2(f)(2) of the Rules.
Mr. Clark, who was a candidate for delegate from Local Union 464, filed P-516-LU464-CAN against David P. Kozak, secretary-treasurer of the local union and an elected delegate who ran on a slate opposing Mr. Clark. Mr. Clark alleges that Mr. Kozak, in a flyer posted at Mr. Clark’s place of employment, falsely accused Mr. Clark and fellow union member Paul Devito of filing frivolous protests with the Election Officer. In P-627-
LU464-CAN, Mr. Clark protests the failure of Mr. Kozak to post the notice ordered by the Election Officer in Clark, P-311-LU464-CAN, et seq. (February 15, 1996), aff’d, 96 - Elec. App. - 118 (March 6, 1996). Mr. Clark asserts that Mr. Kozak’s conduct, in lying to the membership in the flier in P-516-LU464-CAN and his failure to timely comply with Clark, affected the outcome of the Local Union 464 election.
Steve Clark
April 5, 1996
Page 1
Regional Coordinator Gwen K. Randall and Adjunct Regional Coordinator Ray Haines investigated the protests.
There were 1,570 ballots mailed in the Local Union 464 mail-ballot delegate election. There were 687 ballots cast, of which 639 were counted on March 6, 1996. Two slates and one independent candidate competed for two delegate positions and two alternate delegate positions. The results of the election were as follows:
Delegate
Name Slate/Independent Number of Votes
Jim Wood Kozak-Lacroix-Carey 507
David P. Kozak Kozak-Lacroix-Carey 464
Steve Clark Steve Clark 266
Paul Devito Steve Clark 169
Roger Rook Independent 32
Alternate Delegate
Name Slate/Independent Number of Votes
Stuart Barrow Kozak-Lacroix-Carey 506
Chuck Bruce Kozak-Lacroix-Carey 491
Doug Goloney Steve Clark 216
Ivan Giles Steve Clark 199
Clark, supra, involved protests filed by Mr. Clark, Mr. Kozak and Paul Devito, who was a candidate for delegate on the Steve Clark slate. In her decision in Clark, the Election Officer held that Mr. Kozak attempted to bribe a candidate, in violation of Article XII,
Section 11(b) of the Rules, by offering to enroll Mr. Devito in a training course, at the local union’s expense, in order to induce him not to run on Mr. Clark’s slate.[1] She found that
Steve Clark
April 5, 1996
Page 1
Mr. Devito violated the same section of the Rules by accepting the opportunity to attend the course, even though he remained on Mr. Clark’s slate.[2]
To remedy the violations found in Clark, the Election Officer ordered Mr. Kozak and Mr. Devito to jointly reimburse the local union for the cost of the training course, including travel, lodging and related expenses.[3] She further ordered that within two days of the decision, Mr. Kozak and Mr. Devito were to sign a notice appended to the decision and to post the notice on all local union bulletin boards for 30 days. Had this occurred, the notice would have been posted approximately three weeks prior to the ballot count. The Election Officer also ordered that the notice be published in the next issue of the local union newspaper or other periodical regularly made available to the local union’s members. Additionally, the Election Officer ordered Mr. Kozak and Mr. Devito to cease and desist from offering or using any union monies with the purpose, intent or foreseeable effect of influencing candidates for office or any other right under the Rules.
Mr. Kozak did not comply with the directive of the Election Officer to post the notice within the time ordered.[4] In addition to his failure to timely post, on February 21, 1996
Mr. Kozak distributed a flyer entitled, “Let’s Set the Record Straight,” which states his response to the claim that he had bribed Mr. Devito. There is no evidence that the flyer was produced with union funds. The flyer reads as follows:
Malicious lies are being spread simply for political gain. Clark and Devito (Island Farms - Victoria) knowingly filed frivolous protests riddled with untruths in our delegate elections.
The U.S. Attorney in New York representing the U.S. Government has found Devito and me jointly responsible -- I have now appealed this decision as being illogical and running contrary to the facts.
Steve Clark
April 5, 1996
Page 1
This is just another example of U.S. interference in Canadian affairs!
The facts are:
During a phone conversation initiated by Devito, the topic switched from the elections to an organizing drive at Landmark Dairies. As Devito has worked as an organizer before and has expressed an interest, I offered to enrol him in a one-week labour course on organizing.
Devito gratefully accepted and attended the course on behalf of Local 464.
He then filed a protest claiming enrolling him was a bribe!
That’s what all of this nonsense is about.
As you know, for many years Local 464’s policy has been to promote the education of interested members on labour matters. However, to guard against individuals such as Devito from misusing the system for political gain, we may now unfortunately have to reconsider the application of this policy.
DAVID KOZAK
Secretary-Treasurer
Teamsters Local 464
Mr. Kozak handed out about 20 or 30 copies of the flyer at Island Farms Dairies in Victoria, British Columbia, where approximately 200 Local Union 464 members are employed. Mr. Devito is an employee of Island Farms. Mr. Kozak handed out approximately 150 copies of the flyer at Dairyworld Foods in Burnaby, British Columbia, where approximately 325 employees represented by Local Union 464 are employed, one of whom is Mr. Clark.
Article XIV, Section 1 of the Rules guarantees the right of union members to file a protest with the Election Officer, “free from retaliation or threat of retaliation by any person or entity for such filing.” In Clark, the Election Officer stated that “[t]he filing of protests is a protected activity under the Rules, and is an essential part of insuring that the 1996 election will be democratic and fair.” See also Crawley, P-098-LU988-PNJ (June 30, 1995), aff’d,
95 - Elec. App. - 1 (KC) (July 14, 1995); Puglisi, P-1074-LU63-ENG (November 25, 1991), aff’d, 91 - Elec. App. - 242, aff’d, 88 CIV 4486, slip op. (S.D.N.Y. 1992).
Steve Clark
April 5, 1996
Page 1
While the Election Officer does not censor the content of campaign literature, this flyer extends beyond campaign literature to threatening union members, in the capacity of secretary-treasurer, that if they file a protest, previously offered educational benefits will be removed. Mr. Kozak states in his flyer that because Mr. Devito filed a protest, Mr. Kozak may reconsider the local union’s practice of providing educational opportunities to its membership. The message he thereby conveyed to the members is that if a member uses the protest procedure provided in the Rules, the member may be subject to Mr. Kozak’s retaliation.
The Election Officer finds that the flyer could have had a chilling effect upon the right of Local Union 464 members to file protests under the Rules and, therefore, constitutes a violation of Article XIV, Section 1 and Article VIII, Section 11(f).
Accordingly, the protest in P-516-LU464-CAN is GRANTED.
On March 5, 1996, during the appeal hearing of Clark, Mr. Kozak declared that he had not posted the notice which he was ordered to post in that decision. The Election Appeals Master directed Mr. Kozak to post the notice immediately. On March 7, 1996, Mr. Clark advised the Regional Coordinator that the notice still was not posted. On the same day, the Regional Coordinator spoke to the Local Union 464 secretary, who assured her that the notice would be posted. Mr. Kozak did not post the notice that day. Instead, he mailed a copy of the notice to Mr. Devito on March 8, 1996 to obtain his signature on the notice. Mr. Kozak states that he heard nothing from Mr. Devito and waited until March 18, 1996 to call him. Mr. Kozak says that Mr. Devito told him that he had just received the notice and that he would send it back. Mr. Devito sent Mr. Kozak a signed notice by telecopy on March 19, 1996. Mr. Kozak advises that on March 20, 1996, he sent the notice out to be posted.
The Election Officer finds that Mr. Kozak’s delay in posting the required notice, from February 17 to March 20, 1996, is without justification.
These protests are being considered in a post-election context. Article XIV,
Section 3(b) of the Rules, pertaining to post-election protests provides that:
Such protests shall only be considered and remedied if the alleged violation may have affected the outcome of the election, except that any timely protest alleging improper threats, coercion, intimidation, acts of violence or retaliation for exercising any right protected by the Rules shall be considered and remedied without regard to whether the alleged violation affected the outcome of an election.
Steve Clark
April 5, 1996
Page 1
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. Local Union, Operating Engineers, 366 F.2d 438 (2nd Cir. 1966). 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. Dole v. Mailhandlers, Local 317, 132 LRRM 2299 (M.D. Ala. 1989).
The Election Officer has determined that Mr. Kozak’s flyer included an improper threat and constituted coercion, intimidation and retaliation. She has also found that
Mr. Kozak’s failure to post a notice violated her order in Clark. Pursuant to Article XIV, Section 3(b) of the Rules, she will determine whether the flyer or the failure to post, or the combination of both violations, may have affected the outcome of the election.
A threat by the principal officer of the local union that he may retaliate for the exercise of rights protected by the Rules is a serious violation. Moreover, Mr. Kozak issued his own response to the violation against him found in Clark, while delaying posting of the notice ordered by the Election Officer in the same case. The combination of these actions may have conveyed the false impression that Mr. Kozak, not the Election Officer, is the official arbiter of misconduct under the Rules.
The margin of victory in the Local Union 464 delegate election between the delegate winning the second position and the losing candidate with the most votes was 198 votes.
Mr. Kozak states that he distributed approximately 175 copies of his flyer in workplaces with a total of approximately 350 employees, to a membership with whom, as he acknowledges, the local union communicates by word-of-mouth.
Further, post office records disclose that 320 local union members voted after
February 21, 1996 when the flyer was distributed and could therefore have been influenced by it. Accordingly, the Election Officer finds that it is reasonably probable that the leaflet distributed by Mr. Kozak, coupled with his failure to post the notice ordered by the Election Officer, may have influenced the votes cast in the election and, therefore, may have affected the outcome of the election. Therefore, the delegate election in Local Union 464 is declared void and a new election, which will be conducted by the Election Officer, is ordered.
The protest in P-627-LU464-CAN, challenging the fairness of the March 6, 1996 delegate election, is GRANTED. The Election Officer will be in communication with all of the nominated candidates with respect to the details of the re-run election.
Further, within two (2) days of receipt of this decision, Mr. Kozak is ordered to post on all union bulletin boards the notice attached to this decision, which shall remain posted for thirty (30) days. Within five (5) days of this decision, Mr. Kozak shall file an affidavit with the Election Officer detailing his compliance with this order.
An order of the Election Officer, unless otherwise stayed, takes immediate effect against a party found to be in violation of the Rules. In Re: Lopez, 96 - Elec. App. - 73 (KC) (February 13, 1966).
Steve Clark
April 5, 1996
Page 1
Any interested party not satisfied with this determination may request a hearing before the Election Appeals Master within one day of receipt of this letter. The parties are reminded that, absent extraordinary circumstances, no party may rely upon evidence that was not presented to the Office of the Election Officer in any such appeal. Requests for a hearing shall be made in writing and shall be served on:
Kenneth Conboy, Esq.
Latham & Watkins
885 Third Avenue, Suite 1000
New York, NY 10022
Fax (212) 751-4864
Copies of the request for hearing must be served on the parties listed above as well as upon the Election Officer, 400 N. Capitol Street, Suite 855, Washington, DC 20001, Facsimile
(202) 624-3525. A copy of the protest must accompany the request for a hearing.
Sincerely,
Barbara Zack Quindel
Election Officer
cc: Kenneth Conboy, Election Appeals Master
Gwen K. Randall, Regional Coordinator
Ray Haines, Adjunct Regional Coordinator
NOTICE TO MEMBERS OF LOCAL UNION 464
FROM SECRETARY-TREASURER DAVID P. KOZAK
Under the Election Rules, you have the right to file a protest concerning any violation of the Rules for the election free from retaliation or threat of retaliation by any person or entity for having filed such protests with the Office of the Election Officer.
No one, no Local Union officer, delegate, steward, employee of member may threaten, coerce, harass or otherwise retaliate or take any other adverse action against you because you have filed a protest with the Election Officer pursuant to the Rules.
On February 21, 1996, I distributed to Local Union 464 members a flyer entitled “Let’s Set the Record Straight.” The Election Officer has found that by doing so, I violated the Rules because it contained a threat from me that I might retaliate against a member who filed a protest.
Any attempt by any Local Union 464 officer, delegate, steward, employee or member to interfere or retaliate against you for filing a protest pursuant to the Rules of the Office of the Election Officer should be immediately reported to Barbara Zack Quindel, Election Officer, IBT, at her Washington, D.C. office.
_____________________________
David P. Kozak
Secretary-Treasurer
Teamsters Local Union 464
This is an official notice which must remain posted for 30 consecutive days and must not be defaced or altered in any manner or be covered with any other material.
Approved by Barbara Zack Quindel, IBT Election Officer.
[1]Under Article XII, Section 11(b) of the Rules, an employer or a labor organization may not make a “campaign contribution,” which is defined as any contribution “where the purpose, object or foreseeable effect of that contribution is to influence, positively or negatively, the election of a candidate . . .” In Clark, the Election Officer stated, “An offer of anything of value by a local union officer to a member in exchange for his/her agreement to run or refrain from running for office would be a form of bribery and a clear violation of this rule.”
[2]Mr. Kozak had filed a protest against Mr. Clark and Mr. Devito for filing “frivolous” and “malicious” protests “for political reasons.” The Election Officer held that the protests filed by Mr. Clark and Mr. Devito are absolutely protected under the Rules.
[3]The Election Officer ordered Mr. Kozak to pay two-thirds of the amount and
Mr. Devito to pay one-third of the amount. The Election Officer ordered payment to be made within seven days of the date of her decision which issued on February 15, 1996. The investigation of these protests has disclosed that Mr. Kozak has paid, but Mr. Devito has not paid the monies due. His refusal to comply with a decision of the Election Officer will be referred to the United States Attorney for enforcement of the order.
[4]The local union has no newspaper or periodical regularly made available to the membership. Mr. Kozak advises that the local union officers communicate with the members by posting and word-of-mouth.