IN RE: RICK MAZAK,
Protest Decision 2001 EAD 104
Issued: January 25, 2001
OEA Case No. PR011213CA
Rick Mazak, a member of Local 938, 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") against Local 938 president Ray Bartolotti and Local 938 business representative Ray Hill. Mazak alleges that Bartolotti and Hill removed campaign literature from a local union bulletin board that had been placed there by an opposition slate. Bartolotti and other members of his slate are delegate or alternate delegate candidates in Local 938's upcoming IBT convention delegate election.
Election Administrator representative Gwen Randall investigated the protest.
Findings of Facts
Article VII, Section 11(d) of the Rules provides:
No restrictions shall be placed upon candidates' or members' preexisting rights to use employer or Union bulletin boards for campaign publicity. Similarly, no restrictions shall be placed upon candidates' or members' preexisting rights to solicit support, distribute leaflets or literature, conduct campaign rallies, hold fund-raising events or engage in similar activities on employer or Union premises. Such facilities and opportunities shall be made available to all candidates and members on a non-discriminatory basis.
Article VII, Section 11(g) of the Rules prohibits retaliation or threat of retaliation by any person or entity against any IBT member engaged in conduct protected by the Rules.
Mazak is a delegate candidate on the Local 938 Members' Slate. He claims that on January 4, 2001, Bartolotti removed Local 938 Members' Slate campaign literature from a union bulletin board at the Allied Systems Canada facility in Lambeth, Ontario. Mazak did not witness the incident. Our investigator interviewed IBT members Lou MacAulay and Peter Vanderheiden, who did.
Vanderheiden is the most senior IBT member at Allied and has worked for the company or its predecessors for 31 years. MacAulay has worked for Allied or its predecessors for 16 years. MacAulay and Vanderheiden confirmed that on the afternoon of January 4, 2001, Bartolotti, Hill and Craig McInnes, a Local 938 trustee, came to the Allied terminal in Lambeth. They saw Bartolotti approach the local union bulletin board at the site, which is locked and enclosed in glass. A number of pieces of campaign literature had been posted by the Leedham campaign and the Local 938 Members' Slate on the bulletin board. MacAulay and Vanderheiden both say that they saw Bartolotti remove this literature from the bulletin board. Vanderheiden objected, and he reports that Bartolotti responded that he did not care who saw him remove the literature because in his opinion the information in the literature was not accurate. There is no evidence that Hill or McInnes participated in the removal.
Bartolotti confirmed to our investigator that he removed the leaflets, which he states were taped to the front of the glass on the union bulletin board. He added that the contents of the leaflets were "bullshit." He does not admit that he told Vanderheiden that he did not care who saw him remove the leaflets, or that he told Vanderheiden that he was removing the materials because they were inaccurate. We credit Vanderheiden's version of their conversation, however, given Bartolotti's expressed hostility to the opposition slate, as compared to Vanderheiden's straightforward rendition of the incident.
Bartolotti said that as soon as he removed the leaflets, he advised those present that he was on his lunch hour and sat down at a neighboring table to read the leaflets. Bartolotti said that his reason for removing the leaflets was simply to read them, a claim which we do not credit, again because of Bartolotti's expressed hostility to the opposition slate, and his description of the literature as "bullshit." He admitted that he did not repost the leaflets and claimed that he does not recall what he did with them after he read them. Bartolotti also confirmed that he was aware that these were leaflets from the Local 938 Members Slate. He told our investigator that he now knows that he should not have taken the leaflets from the bulletin board.
Our staff also spoke with Allyson Zandwyk, a representative of management at the Allied facility in Lambeth. She stated that company policy at the Lambeth facility is to prohibit the posting of campaign literature by candidates on the union bulletin board at the facility. According to Zandwyk, only official materials announcing the election and similar postings are allowed. She stated that the company would remove any campaign literature that advocated the election of a candidate or candidates. Accordingly, we conclude that there was no preexisting right to use the union bulletin board at the Lambeth facility for campaign publicity.
Analysis
Bartolotti's removal of campaign material from the Allied Systems union bulletin board by a rival candidate would be barred by the first sentence of Article VII, Section 11(d) of the Rules if there were a preexisting right to use that bulletin board for campaign purposes. There is not, however, as found above. Accordingly, the protestor's claim of a violation of that provision of the Rules is DENIED.
Nevertheless, we conclude that Bartolotti's conduct violates the last sentence of Article VII, Section 11(d), which requires that access to union bulletin boards must be non-discriminatory. Thus, Bartolotti told Vanderheiden that he was removing the materials because of their content, rather than because he was enforcing the employer's practices and/or rules regarding the posting of campaign literature. We conclude that such content-based removal of campaign literature constitutes improper discrimination under the last sentence of Article VII, Section 11(d), even where there is no preexisting right to post campaign literature on a union bulletin board. Accordingly, this aspect of the protest is GRANTED as to Bartolotti. The protest allegations as to Hill are DENIED.
Remedy
When the Election Administrator determines that the Rules have been violated, he "may take whatever remedial action is appropriate." Article XIII, Section 4. In fashioning the appropriate remedy, the Election Administrator views the nature and seriousness of the violation as well as its potential for interfering with the election process.
This is not the first time that Bartolotti has shown his disregard for the Rules. In our decision in 2000 EAD 71 (December 21, 2000), we found that Bartolotti threatened retaliation against members of the Local 938 Members' Slate for their protected campaign activity. Other events involving Bartolotti, including those described in our decision in 2000 EAD 33 (October 6, 2000), have resulted in our decision to actively supervise the Local 938 delegate election.
We conclude that only a more severe sanction than would otherwise be appropriate is required here in order to deter further Rules violations by Bartolotti. Accordingly, we order the following remedy:
1. Bartolotti is ordered to cease and desist from interfering with any rights that members of Local 938 enjoy under the Rules.
2. Any further violations of the Rules by Bartolotti after Bartolotti's receipt of this decision that are found to interfere with the rights of Local 938 members under the Rules shall result in the disqualification of his right to run as a candidate for delegate or alternate delegate to the 2001 IBT convention, absent good cause shown.
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 15th Street NW, Tenth Floor, Washington, DC 20005, all within the time period 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 104
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Patrick Szymanski
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Tom Leedham c/o Stefan Ostrach
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IBT Local 938
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Rick Mazak
R.R. 7
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