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Office of the Election Supervisor for the International Brotherhood of Teamsters

IN RE: ROBERT McAULAY and DEREK JENSEN
Protest Decision 2001 EAD 264
Issued: March 26, 2001
OEA Case Nos. PR030211CA, PR0307111CA, PR030811CA, and PR030912CA

Robert McAulay and Derek Jensen, members of Local Union 938 and candidates for alternate delegate and delegate, filed pre-election protests pursuant to Article XIII, Section 2(b) of the Rules for the 2000-2001 IBT International Union Delegate and Officer Election ("Rules"). They allege their right to post campaign literature on worksite bulletin boards was impermissibly impeded. We have deferred this protest for post-election consideration pursuant to Article XIII, Section 3(b) of the Rules.

Election Administrator representative Jeffrey Ellison investigated the protest.

Findings of Fact and Analysis

McAulay reports that literature he posted at Reimer Express on February 28 supporting the Hoffa Canadian Unity slate was removed when he returned the next day. Further, campaign flyers he posted at Cabano Kingsway February 28 were gone when he returned on March 2. Postings he made at Canadian Freightways, Western Canada Express and Overland Express on March 1 were missing when he visited the worksites again on March 8 and 9.

Jensen discovered on March 6 that literature he previously posted at Allied Systems' St. Thomas-Lambeth terminal supporting the Hoffa slate was gone.

In all cases, the individuals who removed the postings are unknown. However, the protestors assert that literature supporting the opposition 938 Members slate remained on bulletin boards, and they speculate supporters of that slate are responsible for removing the Hoffa slate literature. McAulay and Jensen report that opposition slate candidates are employed at Reimer, Cabano, Overland and Allied and that these worksites are political strongholds of that slate. The 938 Members slate, however, denies interfering with the posting rights of the Hoffa slate.

Article VII, Section 11(d) of the Rules preserves for candidates and members the preexisting right they enjoyed to post campaign literature on worksite bulletin boards. There is no dispute that campaigning is permitted on the worksite bulletin boards at issue here. Accordingly, removal of campaign literature under the circumstances presented violates the Rules.

However, 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, PT1 (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 twelve delegate and three alternate delegate seats were tallied March 20, 2001. Each candidate for delegate and alternate delegate on the 938 Members slate was elected. The margin of victory between the successful delegate candidate with the fewest votes (Jephson with 1,310 votes) and the next candidate (Miles of the opposing slate with 783 votes) is 527. Similarly, the margin between the successful candidate for alternate delegate who polled the fewest votes (Wakaruk with 1,324 votes) and the next candidate (McAulay with 787) is 537.

Based on these substantial margins, we find the impermissible removal of the protestors' literature did not affect the outcome of the election, especially in light of the protestors' concession that the 938 Members slate enjoyed strong political support at the worksites at issue. Under these circumstances, there is no reasonable probability that an overarching shift of votes in favor of the Hoffa slate would have occurred in the absence of the violation. The protest is, therefore, DENIED pursuant to Article XIII, Section 3(b) of the Rules.

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 264

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

 

Robert McAulay

402-2177 Sherobee Road

Mississauga, ON L5A 3G9

Canada

 

Derek Jensen

103 Napoleon Drive

London, ON M5V 4B1

Canada

 

John Hull

3231 Eglinton Avenue East

Apt. 1705

Toronto, ON M1J 3N5

Canada

 

IBT Local 938

275 Matheson Blvd. West

Mississauga, ON L4Z 1X8

Canada

 

Ray Bartolotti

c/o Watson Kucey

Labour Lawyers

3555 Lakeshore Blvd. West

Toronto, ON M8W 1P4

Canada

 

Ray Bartolotti

63 Centennial Parkway South

Stoney Creek, ON L8G 6T1

Canada

 

Michael J. Goldberg

73 Harrowgate Drive

Cherry Hill, NJ 08003

 

Transport Cabano Kingsway

391 Creditstone Road

Concord, ON L4K 1N8

Canada

 

Western Canada Express

61 Administration Road

Concord, ON L4K 2R8

Canada

 

Reimer Express

5919 Shawson Road

Mississauga, ON L4W 3Y2

Canada

 

Canadian Freightways

5425 Dixie Road

Mississauga, ON L5A 3G9

Canada

 

Allied Systems

Attn: Thomas Duffy

160 Claremont Avenue

Suite 600

Atlanta, GA 30030

 

Allied Systems

1651 Colonel Talbot Road

London, ON N69 1J2

Canada

[1]   Of 2,514 ballots cast, 2,298 valid ballots were counted, 38 were declared void, and 178 were challenged.  The challenged ballots were insufficient to affect the results of the election and were not resolved.