Protest Decisions

IN RE: RAY BARTOLOTTI,
Protest Decision 2001 EAD 314
Issued: April 17, 2001
OEA Case Nos. PR022612CA, PR022811CA, PR031311CA and PR032212CA

Ray Bartolotti, principal officer of Local Union 938 and lead delegate candidate on the Hoffa Canadian Unity slate, 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"). He alleges Election Administrator bias against his slate and in favor of the 938 Members slate. We deferred these protests for post-election consideration pursuant to Article XIII, Section 2(f)(2).

Election Administrator representative Jeffrey Ellison investigated the protests.

Findings of Fact and Analysis

Background. The Local 938 delegate election has generated a number of protest decisions.[1]  Central to our discussion here is our decision in Hull, 2001 EAD 153 (February 10, 2001). In that case, an insurance agency sent a letter to the Local 938 membership less than three weeks before the mailing of ballots touting a particular insurance product; in so doing, the letter praised Bartolotti's leadership of the local. We held the letter constituted campaign literature because it had the purpose, object or foreseeable effect of influencing positively Bartolotti's election as delegate. Because the letter was funded by an insurance company and broker, we held it constituted an improper employer contribution under the Rules. To remove the employer taint the letter introduced into the delegate election, we ordered Bartolotti to reimburse the employers the full cost of the insurance mailing and to pay the full cost associated with mailing a notice to all members. To remedy the unfair campaign advantage Bartolotti realized as the result of the improper employer contribution, we ordered him to pay the full cost of a campaign mailing by the 938 Members slate and by any independent candidates in the delegate election, if requested. Under the terms of our order, the mailings of our notice and campaign literature were to be completed on February 16, four days ahead of the February 20 mailing of ballots.

Bartolotti appealed our decision. On our own motion, we stayed the remedy for seven days to allow the appeal process to conclude. We also stayed the mailing of ballots for seven days so as "to preserve any meaningful remedial impact" of the order. Hull, 2001 EAD 166 (February 14, 2001). To advise the membership of the delay in the election, we ordered the local union to post a copy of the decision on all union bulletin boards at all worksites under the jurisdiction of the local by 5:00 p.m. on February 20. The local did not request a stay of this posting requirement, nor did it comply. Instead, on February 20 after the deadline had passed, Cynthia Watson, holding herself out only as Bartolotti's lawyer, requested a stay in the local's behalf.

The same day, John Hull filed a protest alleging Bartolotti had improperly obtained a copy of the local's membership list for campaign purposes. In light of Bartolotti's previous improper conduct, Hull's protest, if substantiated, could have resulted in Bartolotti's disqualification from the delegate election.[2]  Accordingly, in Hull, 2001 EAD 178 (February 21, 2001), we vacated the posting requirement of 2001 EAD 166 and stayed indefinitely the mailing of ballots "to allow for proper investigation of the new protest, and any appeal from a decision on that protest." This order did not affect the date for mailing of campaign materials ordered in 2001 EAD 153, as amended by 2001 EAD 166.

On February 21, Judge Conboy affirmed our decision in 2001 EAD 153, as modified by 2001 EAD 166. 01 EAM 37. On February 26, Hull withdrew his protest. Over the objection of Bartolotti lodged that same day, we ordered the mailing of ballots on February 27, the date set by our decision in 2001 EAD 166. Hull, 2001 EAD 193 (February 26, 2001). The election timetable set by 2001 EAD 166 was restored because the protest that prompted its indefinite suspension was withdrawn.

Bartolotti's protests decided here follow from these events.

1. In a protest prepared and filed for him by Watson, Bartolotti alleges Election Administrator representatives Michael Nicholson and Gwen Randall demonstrated bias by "soliciting/encouraging the independent candidate, [Gary] McKay[,] to do a mailing, the costs of which were to be borne by Mr. Bartolotti." According to the protest, "[t]his conduct has seriously impaired the Election Administrator's impartiality in the conduct of the election." Watson cites three facts which she contends prove bias: 1) Nicholson left several "urgent" telephone messages for McKay through the week ending February 23 requesting he return the call; 2) on February 23 when Nicholson, a U.S. lawyer, finally reached McKay, he added Randall, a Canadian lawyer, to the telephone call, with the result that lawyers "from two different countries were simultaneously" urging McKay to do the mailing; and 3) Nicholson and Randall extended the date for McKay's mailing, if he chose to do one, from February 23 to February 26, even though McKay "gave no indication that he was remotely interested" in doing the mailing.

Investigation showed that McKay, an over-the-road truck driver, was away from home during the week ending February 23. Nicholson called nearly daily that week, seeking to advise McKay of his right under 2001 EAD 153 to a campaign mailing funded by Bartolotti. Although McKay's wife told Nicholson she would relay Nicholson's request for a return call, McKay did not call back. Finally, Nicholson reached McKay on February 23, the date the remedial mailings were to be sent. Nicholson immediately added Randall to the call because she was overseeing the mailings of our notice and the 938 Members slate campaign literature. Nicholson advised McKay of his right to a mailing at Bartolotti's expense and asked whether he wanted to do one. McKay replied that he had just gotten in from the road and needed time to think. Nicholson extended the deadline to February 26, giving McKay the weekend to consider whether to send a mailing. On February 26, Watson advised Nicholson that McKay decided to forego the right.

Her protest allegation notwithstanding, Watson conceded to our investigator that extending McKay's deadline to submit campaign literature for mailing was appropriate, given that the day he first received notice of his right was also the day literature was to be mailed. She maintained, however, that Nicholson should not have telephoned McKay repeatedly; he rather should have mailed a copy of 2001 EAD 153 to McKay with a letter directing his attention to the decision's remedy. Watson further maintained that adding Randall to the call, with the result that lawyers from two countries were speaking with McKay simultaneously, amounted to overreaching on the part of the Election Administrator's office.

Following the call, McKay telephoned and then visited Bartolotti. According to Bartolotti, McKay referred to the call from Nicholson and Randall, telling him, "Someone's out to get you and screw you," adding "I'm not going to screw you." Bartolotti said McKay told him he felt "pressured and pushed" to do the mailing.

McKay contradicted these statements, telling our investigator he "understood [Nicholson and Randall] were just telling me what my rights were, that I could do a mailing if I wanted to." He further reported he didn't believe he gave Bartolotti "the impression that they were harassing me or anything like that."

Michael Goldberg, counsel for the 938 Members slate, told our investigator his client was concerned McKay, although nominally independent, might use his right to send a flyer to endorse Bartolotti's slate or attack the 938 Members slate. Accordingly, Goldberg did nothing to encourage Nicholson to pursue a McKay mailing, even though the expense would be Bartolotti's.

We DENY this protest. Nicholson's effort to contact McKay to advise him of his right was appropriate under the circumstances. Adding Randall to the February 23 call was appropriate given her role of overseeing the mailings. In light of McKay's work circumstances, it was also appropriate to extend his deadline for submitting campaign material for mailing to give him meaningful opportunity to exercise his right, if he so chose. Finally, we note that McKay declined to do a mailing, a fact that alone demonstrates he was not unduly influenced by Nicholson and Randall.

2. In a second protest prepared and filed by Watson, Bartolotti claims the decision to go forward with the mailing of ballots on February 27 was done solely to benefit Hull and the 938 Members slate and was made before and independent of the withdrawal of Hull's protest that had prompted the indefinite suspension of the election.

Following the filing of the Hull protest, the election was postponed indefinitely but the schedule remained in place for the remedial mailings set by 2001 EAD 166. Investigation showed that, after the indefinite stay of the election pending the resolution of Hull's protest, Hull and Goldberg recognized that the remedial impact of the Bartolotti-funded mailing would diminish the longer it preceded the mailing of ballots. For this reason and because the merit of the protest was uncertain, Hull elected to withdraw the protest and restore the ballot mailing date to the date set by 2001 EAD 166. Goldberg told Nicholson of Hull's intention to withdraw the protest on February 22.

That same day, Nicholson told Watson the protest would likely be withdrawn and sought her client's position on maintaining the ballot mailing date on February 27. According to Nicholson, Watson offered no objection, saying, "we're in your hands" as to the date for mailing of ballots. Nicholson's contemporaneous notes corroborate this statement. Watson, however, denied the mailing date was discussed. She admitted a conversation with Nicholson of that date but claimed it centered on the notice ordered by 2001 EAD 153. Although she also claimed to have notes of the telephone conversation, Watson declined our investigator's request to review them, even in redacted form.

We DENY this protest as well. In circumstances where the purposes of the Rules are served, protests may be withdrawn. Here, Hull's withdrawal was approved principally because it allowed an election that was indefinitely stayed by the filing of that protest to proceed. We fail to find anything inappropriate in the circumstances presented about reverting to the ballot mailing schedule previously ordered, especially where Watson offered no objection at the time.

3. In a third protest Watson prepared and filed, Bartolotti alleges that Hull declared that he had a number of protests "on hold" that he would file in the event he was unsuccessful in the delegate election. Watson cites Hull's declaration as proof that the Election Administrator is in league with Hull.

Watson offered no proof that Hull had made the statement she attributed to him, citing only a "reliable but confidential source."

Hull denied saying he had protests on hold. He told our investigator, however, that he was confident that Bartolotti would violate the Rules again, in light of his record already established.

We DENY this protest for lack of evidence. Further, Watson fails to articulate how a partisan statement like the one she attributes to Hull can demonstrate bias on the part of the Election Administrator.

4. In a fourth protest from Watson's office, Bartolotti alleges bias in the compliance investigation required by 2001 EAD 153. That decision required him to present proof of repayment of the improper employer contribution. He presented a check purportedly signed by himself drawn on a checking account held, according to the check, by "L. Bartolotti." Because Bartolotti's name did not appear on the check, Randall asked him to provide proof he had signing authority on the account. Watson claimed this request "constitutes harassment and does not appear to be geared to protecting any legitimate interests of the Office of the Election Administrator or the process." Rather, Watson urged, "the letter reinforces our concern about the lack of impartiality of investigating officer Gwen Randall and arguably constitutes an abuse of process."

Despite the protest, Bartolotti subsequently provided satisfactory evidence he was a co-owner of the account.

We DENY this protest as well. We are obliged by the Rules to assure compliance with our orders. Because the order directing reimbursement of the improper employer contribution ran to Bartolotti, it was appropriate to request proof that Bartolotti - and not a surrogate - had complied.

5. In what she described as "a final protest on behalf of Ray Bartolotti," Watson asserts that Randall demonstrated bias at the ballot count held March 20. She claims Randall 1) "greeted 938 Members Slate candidates with warm embraces," 2) allowed 938 Members slate supporters free access inside the hall at which the count was conducted, 3) showed she regarded the chair of the election committee as biased, 4) participated in the "sorting and counting of ballots" although such was not her responsibility, 5) allowed the 938 Members slate to challenge all ballots postmarked March 13 or later without requiring them to identify the reason for the challenge, 6) allowed the 938 Members slate to challenge ballots postmarked from other than the members' home postal code areas, 7) allowed Dave McPherson, a candidate on the 938 Members slate, to copy information from the TITAN record, 8) spoke privately with McPherson, 9) pulled Tom Wakaruk, another member of the 938 Members slate, by the shirt sleeve and spoke privately to him, 10) acceded to the request of the 938 Members slate that the bar be opened while ballots were still being counted, and 11) celebrated the victory of the 938 Members slate.

Neither Bartolotti nor Watson responded to a written request for evidence. Watson did not return a telephone message requesting evidence. However, Joe Contardi, chair of the local's election committee, provided a written and oral recounting of the events of the count.

On November 29, 2000, we wrote Local 938, in the person of Bartolotti, informing it that we would, pursuant to our authority under Article I of the Rules, be conducting (rather than supervising) its election. We did permit Baratz Judelman, an accounting firm the local had previously retained to run its election, to perform certain discrete tasks, including counting the ballots. Danny Baratz conducted the count with 8 persons under his supervision.

We address the allegations against Randall in the order presented. First, she denied embracing any candidate on the 938 Members slate. Wakaruk corroborated this denial.

Second, she allowed interested supporters of the two slates, without discrimination, access to the hall. However, the counting area was under the control of Baratz who, with assistance from Contardi, limited the number of observers at each counting station to one per slate.

Third, Contardi claims Randall told him he could bring in observers from his "side." Contardi claims he told her he did not have a side but was neutral. Contardi reports this exchange occurred in the presence of Rick Fyvie, a candidate on Bartolotti's slate, and concerned observer forms Fyvie had. Randall denies the event. She states, however, that Contardi showed bias for Bartolotti's slate at the Toronto nomination meeting. Contardi drew slate names by lot to establish ballot position. When he pulled the 938 Members slate first, he said, "Oh, s---." Randall told him he was supposed to be neutral. Contardi told our investigator he did not recall this incident.

Fourth, Randall participated in the sorting of ballots. To verify voter eligibility, each ballot must be compared with the Election Control Roster. To assist in this process, ballots are placed in alphabetical order. Randall alphabetized the ballots of voters with last names starting with H. Objection was raised to her participation, and she ceased.

Fifth, Randall allowed the 938 Members slate to challenge all ballots postmarked March 13 or later, based on their claim that ballots had, late in the voting period, been improperly removed from the offices of Baratz Judelman by supporters of Bartolotti's slate. These ballots were segregated and, when the challenge was withdrawn, were counted and the tally added to the overall total.

Sixth, she allowed the 938 Members slate to challenge all ballots postmarked from a postal code area distant from the member's home. These ballots too were segregated and, when the challenge was withdrawn, counted and the tally added to the overall total.

Seventh, Randall denied that she allowed McPherson to copy information from the TITAN record. No evidence was presented to contradict this denial.

Eighth, Randall denied that she spoke privately with McPherson. No evidence was presented to contradict this denial.

Ninth, Randall denied that she spoke privately with Wakaruk or pulled on his shirt sleeve. No evidence was presented to contradict this denial.

Tenth, the bar was opened very late in the count, but not on Randall's motion. However, alcohol was not allowed in the counting area.

Finally, Randall did not celebrate the 938 Members slate victory. No evidence was presented to the contrary.

We DENY this protest. Contardi emphasized to our investigator that "nothing really that happened would have affected the count. The numbers were there; they don't lie." Randall was authorized by Article IV, Section 9 to allow the challenges made by the 938 Members slate, despite a lack of documentary evidence supporting the challenges. Even had she erred, a contention we reject, the challenges were eventually withdrawn and the votes counted, so no harm resulted. Were we to credit Contardi's claim that Randall viewed him as biased, we fail to identify an effect on the vote count or the outcome of the election.

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 15^th 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 314

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 Rank and File

Power Slate

c/o Stefan Ostrach

110 Mayfair

Eugene, OR 97404

 

Ray Bartolotti

63 Centennial Parkway South

Stoney Creek, ON L8G 6T1

Canada

 

Ray Bartolotti

c/o Watson Kucey

Labour Lawyers

3555 Lakeshore Blvd. West

Toronto, ON M8W 1P4

Canada

 

IBT Local 938

275 Matheson Blvd. West

Mississauga, ON L4Z 1X8

Canada

 

Joe Jephson

510-27 Bergamount Avenue

Toronto, ON M6V 1W5

Canada

 

John Hull

3231 Eglinton Avenue East

Apt. 1705

Toronto, ON M1J 3N5

Canada

 

Michael J. Goldberg

73 Harrowgate Drive

Cherry Hill, NJ 08003

 

Jeffrey Ellison

65 Cadillac Square, Suite 3727

Detroit, MI 48226