IN RE: GARY GREGORY,
Protest Decision 2001 EAD 241
Issued: March 20, 2001
OEA Case No. PR020214MW
Gary Gregory, a member of Local 135 and a delegate candidate on the Working Rank and File Stand Up slate (the "WRFSU slate"), 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 135's choice of Edward J. Fillenwarth, Jr. to conduct its delegate election ensured that the election would not be "fair, honest, open and informed" as required by the Rules because Fillenwarth has a conflict of interest.
Election Administrator representative Dennis Sarsany investigated the protest.
Findings of Fact
Gregory attacks Fillenwarth's history as an attorney for Local 135 and argues that Fillenwarth's previous work for Local 135 creates a conflict of interest. With respect to Local 135's delegate election, Gregory believes that Fillenwarth engaged in at least three acts of wrongdoing.
First, Gregory alleges that Fillenwarth refused to revise official postings with numerous misspellings of names of candidates on the WRFSU slate, even though Local 135 secretary-treasurer Michael Carver agreed to do so. Fillenwarth stated that he never knew about the misspellings. He said that he spoke with Clarence Brabson III, a delegate candidate on the WRFSU slate, who asked for a reposting. Brabson requested the reposting because the posting did not mention the WRFSU slate; the only slate named was the Barton Unity Team for Progress and Strength (the "Barton slate"). According to Fillenwarth, he determined that the posting was proper under the Rules and did not require a second posting. Fillenwarth maintains that Brabson never mentioned any alleged misspellings.
Second, Gregory alleges that Fillenwarth played a role in coercing Larry J. Renn to withdraw as a delegate candidate on the WRFSU slate. We previously held that Renn was not coerced. Gregory, 2001 EAD 130 (February 3, 2001), aff'd, 01 EAM 28 (February 14, 2001). Gregory also claims that Fillenwarth did not advise him of the decision to allow Renn to withdraw until February 18, 2001-more than a week after the candidates' meeting-and that Fillenwarth published Local 135's ballots notwithstanding Gregory's pending protest.
According to Fillenwarth, to determine whether Renn could withdraw under the Rules, Fillenwarth contacted our investigator, who is also the Midwest Regional Director. In that capacity, Dennis Sarsany informed Fillenwarth prior to the candidates' meeting that Renn could withdraw his acceptance of the delegate nomination. Subsequently, according to Fillenwarth, he advised the candidates of Renn's withdrawal at the January 10, 2001 candidates' meeting. Sarsany also discussed with Fillenwarth the timing of the mailing of ballots. Specifically, Sarsany directed Local 135 not to mail the ballots until the Renn appeal had been decided. The local complied.
Finally, Gregory claims that when his slate won the coin toss, thereby allowing the WRFSU slate to appear first on the ballot, Fillenwarth tried to trick Gregory by pretending not to know where Gregory's slate should appear on the ballot. Fillenwarth states that after Gregory won the coin toss, he claimed the first location. Fillenwarth asked Gregory to specify the location so there would be no misunderstanding regarding the location that Gregory selected. Gregory also claims that Fillenwarth failed to act when Jerry Lyons, a candidate on the Barton slate, attempted to intimidate WRFSU slate candidates. Fillenwarth said that he recalls a loud discussion between Gregory and Lyons, which prompted Fillenwarth to announce, "Let's have one meeting only" in an effort to maintain control of the assembly.
Analysis
We do not find evidence of bias or a conflict of interest on the part of Fillenwarth. Concerning the first claim, we find no evidence that Fillenwarth was informed about the WRFSU slate's concern about the alleged misspellings of candidates' names. Although Gregory may have mentioned the problem to Local 135's secretary-treasurer, we find no evidence that Fillenwarth was informed of the issue when Local 135's postings were being prepared. With regard to the second claim, we find that Fillenwarth's actions followed our instructions and complied with the Rules. Finally, concerning the candidates' meeting, we find no evidence that Fillenwarth attempted to trick Gregory. Rather, we find, Fillenwarth hoped to avoid any misunderstanding by asking Gregory to specify where on the ballot he wanted the WRFSU slate to appear. We also find no evidence that Fillenwarth was involved, implicitly or otherwise, in alleged intimidation by a candidate on the Barton slate.
For the foregoing reasons, we DENY the 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 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 (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 241
DISTRIBUTION LIST VIA UPS NEXT DAY AIR:
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
Gary L. Gregory
10815 Bakeway Drive
Indianapolis, IN 46231
IBT Local 135
1233 Shelby Street
Indianapolis, IN 46203
Edward J. Fillenwarth, Jr.
Fillenwarth, Dennerline, Groth & Towe
1213 North Arlington Avenue
Suite 204
Indianapolis, IN 46219
Dennis M. Sarsany
1829 Eddy St.
Chicago, IL 60657