ELECTION APPEALS MASTER
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IN RE CHRISTOPHER TOOLE
AND JEFFERY SCAGLIA,
2015-2016 EAM 28 (KAR) (ESD 272) PROTESTORS
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Protest Decision 2016 ESD 272 (ESD 272) was issued on July 15, 2016 (OES Case Nos. P-233-032116-NE & P-244-032616-NE). ESD 272 resolved two protests concerning mailings in March 2016 to the members of Local Union 118 after the delegate election by members who had run in that election.
Decision of the Election Supervisor
The first protest was filed by appellant Christopher Toole, Secretary-Treasurer of Local 118, who was part of the slate that lost the delegates and alternate delegates election. He protested that a postcard sent by the winning “Clean Slate” after the election violated the Rules. On one side, the postcard read:
THANK YOU “WE WON!!!”
The Clean Slate
On the reverse was the following text:
Hopefully, this Postcard will serve 2 purposes: First, we want to express our sincere THANKS to all of you who supported the “Clean Slate” in our Local’s recent Delegates Election. Without your support, our victory in this Election would not have been possible. Second, we want the Membership to know that we will NOT rest until we reach our ultimate goal: Defeating our current corrupt and self-serving Executive Board in our Local’s General election, which will be held this coming November. Thank you again for your continued support!
The Election Supervisor granted Mr. Toole’s protest. He found that the right to a mailing under Article VII, Section 7 is limited to “candidates,” and, because all members of the Clean Slate were elected, they were no longer candidates who had the right under the Rules to use the membership mailing list. Mr. Toole’s protest also argued that the mailing cost was paid by “New York Coin,” an employer listed as the postcard’s return address. Christopher Camelio, a member of the Clean Slate, has a family coin laundry business named New York Coin; this address was listed as the return address on the postcard. The Election Supervisor found that the full production and mailing costs were paid in equal shares by the seven members of the Clean Slate.
The second protest was filed by Jeffery Scaglia, a member of the winning Clean Slate, alleging that a letter sent in response to the postcard by Local 118 President Paul Markwitz, the lead candidate on the losing slate, violated the Rules because it was union-funded. The Election Supervisor granted this protest as well, finding that Mr. Markwitz’s use of the membership list to respond to the Clean Slate’s postcard was impermissible and was compounded by the use of union resources to pay for it.
As a remedy, the Election Supervisor ordered both slates to cease and desist from using the membership list post-election. In addition, the Election Supervisor ordered Mr. Markwitz to reimburse the local union for the cost of the letter sent in response to the postcard. The Election Supervisor calculated this cost at $3,593.70, including first class postage, printing, letterhead, envelopes, and staff time, at 90 cents per piece for this local union of nearly 4,000 members.
Appeal of ESD 272
On July 16, Mr. Toole filed an appeal of ESD 272, stating:
We believe the office of the Election Supervisor has over stepped its authority in their ruling in ESD 272 as it relates to Local Union autonomy and the rights of a Local’s Executive Board to address their members on matters not covered under the Rules.
In addition, we believe the decision and penalty rendered against the Clean Slate was insufficient given their flagrant abuse of the election system, their use of employer funds (through New York Coin Laundry), the ability of New York Coin Laundry to receive all returned postcards thus giving them access to the member’s addresses and information and the Mr. Camelio’s deceit in obtaining permission from the printer (whose sole job was to print and mail ballots and campaign material for the delegates election only) to send a political postcard concerning a Local union election outside the scope of the office of the Election Supervisor.
Finally, the fine imposed on the Markwitz slate is punitive and arbitrary.
Neither Mr. Toole’s appeal nor his underlying protest challenged the timeliness of Mr. Scaglia’s protest; nor did the appeal challenge the Election Supervisor’s calculation of the cost of the mailing by Mr. Markwitz.
The Election Supervisor responded to Mr. Toole’s appeal by letter dated July 21 (OES July 21 Letter).
A telephonic hearing on the appeal of 2016 ESD 272 was held on July 22, 2016, attended by: Jeffrey J. Ellison, Esq., on behalf of the Election Supervisor; Peter Marks (OES Investigator); Christopher Toole, Paul Markwitz, Michael F. Geraci, Esq., attorney for Local Union 118; Jeffery Scaglia; Michael Figliotti; and Christopher Camelio.
Decision of the Election Appeals Master
The arguments set forth in Mr. Toole’s appeal are rejected for substantially the reasons set forth in ESD 272 and the OES July 21 Letter.
In addition to the arguments set forth in Mr. Toole’s appeal, counsel for Local 118 asserted at the hearing that the protest filed by Mr. Scaglia was untimely under the Article XIII (3) of the Rules, and that the Election Supervisor was therefore without jurisdiction to consider or remedy the alleged violation.[1]
As noted above, this argument was not asserted by Local 118 during the Election Supervisor’s investigation of Mr. Scaglia’s protest, and was not asserted as a basis for Mr. Toole’s appeal of ESD 272. I therefore find that this argument has been waived and is not properly before the Election Appeals Master.[2]
At the hearing, Local 118 also raised for the first time a challenge to the Election Supervisor’s calculation of the cost of the Local 118 mailing, and requested an opportunity to submit evidence of the assertedly lower expenses actually incurred by the Local. Based upon a sworn statement and documentation received from Mr. Markwitz following the hearing, the Election Supervisor does not object to modifying the remedial order to a total of $3,193.93, which I find to be fair and reasonable for the reasons set forth in the Election Supervisor’s supplemental submission dated July 27, 2016.
For the foregoing reasons, the appeal is denied and ESD 272 is affirmed.
SO ORDERED.
/s/____________________________________
KATHLEEN A. ROBERTS
ELECTION APPEALS MASTER
DATED: August 5, 2016
[1] Article XIII (3) of the Rules (“Post-Election Protests”) provides in pertinent part:
Protests concerning election day or post-election day conduct (“post-election protests”) shall be processed in the following manner:
(a) Protests regarding any alleged improper election day or post-election day conduct or event must be filed:
(1) within three (3) working days of the posting of the official election tally sheet, when involving any delegate selection,
* * *
(3) within two (2) working days of the date when the protestor becomes aware or reasonably should have become aware of the action protested, when involving alleged improper post-election threats, coercion, intimidation, acts of violence or retaliation for the exercise of rights protected by these Rules.
If the above time limits are not met, the protest shall be waived.
It is undisputed that the tally of ballots for the Local 118 delegate election was completed on February 27, 2016. Nor is there any contention that the protests that are the subject of ESD 272 involved allegations of improper threats, coercion, intimidation, acts of violence or retaliation for exercising any right protected by the Rules.
[2] As the Election Supervisor points out, this argument would also preclude consideration of Mr. Toole’s protest and appeal regarding the Clean Slate postcard.