Office of the Election Supervisor for the International Brotherhood of Teamsters

OFFICE OF THE ELECTION SUPERVISOR

for the

INTERNATIONAL BROTHERHOOD OF TEAMSTERS

IN RE: ROGER BALES,                              )           Protest Decision 2011 ESD 286

                                                                        )           Issued: June 28, 2011

             Protestor.                                           )           OES Case Nos. P-221-031411-FW               

____________________________________)

            

Roger Bales, member of Local Union 853, filed two pre-election protests pursuant to Article XIII, Section 2(b) of the Rules for the 2010-2011 IBT International Union Delegate and Officer Election (“Rules”).  Bales’ first protest alleged that Rome Aloise retaliated against him by bringing internal union charges against him for speech protected by the Rules.  Bales’ second protest alleged that Local Union 853 retaliated against him on the same basis by finding him guilty of the charges Aloise brought. 

            Election Supervisor representative Michael Miller investigated these protests.

Findings of Fact and Analysis

            Rome Aloise is secretary-treasurer and principal officer of Local Union 853.  He is also president and principal officer of Joint Council 7 and IBT vice president at large.  He is an elected delegate of Local Union 853 to the IBT convention, and an announced candidate for IBT vice president. 

On April 1, 2011, Aloise lodged internal union charges against Local Union 853 member Roger Bales.  The charges, directed to Local Union 853 recording secretary Antonio Christian, read as follows:

Please be advised that I am hereby filing charges against Local 853 member Roger Bales under Article XVII of the Local 853 Bylaws, and Article XIX of the International Constitution.

I am specifically accusing Roger Bales of violations of, but not limited to Article XXVI of the Local Union 853 bylaws, and of Article II of the International Constitution.  Specifically, Roger Bales has violated his oath of membership by bringing reproach upon the Union by his statements and actions concerning his accusation that I used funds of the Local Union for my International campaign, and by demanding an “all expenses paid trip” to Las Vegas, by alluding to some means of recording of a meeting.  By these and other actions, Roger Bales has brought reproach upon our Union.

Please schedule a trial date for this case to be heard.

By certified mail the same date, recording secretary Christian mailed Bales the charges and notice that hearing on them would take place on April 14.

            On Monday, April 4, the first working day after receiving the mailed charges, Bales filed OES Case No. P-247-040511-FW, stating, “I, Roger A. Bales, hereby protest the charges that have been brought against me by Rome Aloise …” 

            The internal union trial was convened as scheduled on April 14.  Under Article XIX, Section 1(a) of the IBT constitution, trials of local union members are to be conducted by the local union executive board, which is comprised of the secretary-treasurer, president, vice president, recording secretary, and the three trustees of the local union.  As Aloise was preferring the charges, he did not sit on the panel.  In addition, local union president Steve Mack and local union trustee Michael Amaral did not sit.  Under the same provision of the constitution, where both the secretary-treasurer and the president are either preferring the charges or unable to attend the hearing, the remaining executive board members “shall appoint the substitutes.”  Business agents Bob Strelo, Efren Alarcon and Lou Valletta were appointed to fill the vacancies created by Aloise as the charging officer and the unavailability of Mack and Amaral.

Aloise presented a case that Bales brought reproach upon the union by stating falsely 1) that Aloise used local union funds for his campaign for International office and 2) that Aloise induced Bales to withdraw his candidacy for delegate.[1]

Bales responded to Aloise’s case by denying all charges.  Further, he presented a case that he did not accuse Aloise of using local union funds for his campaign.  Bales further stated that he apologized to Aloise, if Aloise misconstrued his statement as an allegation that he had used local union funds to support his campaign.  In addition, Bales presented evidence relating to his statement that Aloise induced him to withdraw his delegate candidacy.[2]

            The proceeding lasted 49 minutes.

            The trial committee issued a written decision on the charges on June 17, 2011.  It was provided to our investigator the same date.  The decision, signed by recording secretary Christian, stated the following in relevant part:

The hearing panel concluded as follows:

§  Brother Bales’ statements concerning Brother Aloise’s alleged use of Union funds in support of his campaign for IBT office were made entirely without factual support and with reckless disregard for the truth; and

§  Brother Bales’ allegation that Brother Aloise offered him an “all expenses paid” trip to Las Vegas at the Local’s expense was not credible.

However, after the closure of the hearing the Local was advised that whether true or false, Brother Bales’ statements were likely deemed subject to the Union Members Bill of Rights provisions of the Labor Management Reporting and Disclosure Act of 1959.  While the Panel recognizes that right of freedom of speech contained in the LMRDA, like the U.S. Constitution, is not without limits and does not provide a blanket right to defame others, it would be inappropriate to impose a penalty for the conduct at issue, no matter how reckless.

Based on the foregoing and the record as a whole, the Panel concludes that Brother Bales made entirely unfounded accusations against Brother Aloise without regard for the truth of these statements and in so doing brought reproach on Local 853 and violated the IBT Constitution, Article XIX, Section 7(b)(2) and Local 853 Bylaws Article XXVI, but to impose no penalty for this conduct.

            Because of the pending protest from Bales concerning the imposition of internal union charges against him by Aloise, we obtained his response to the panel’s decision, which he provided by filing the protest in OES Case No. P-281-062111-FW.  That protest asserted that Local Union 853, “headed by Rome Aloise, has found me ‘guilty’ in bogus charges filed by Aloise.  This action by Aloise’s supporters was in retaliation for protected election activity.”[3]

            In assessing these protests, we are guided by Article VII, Section 12(g), which prohibits retaliation for exercising any right guaranteed by this or any other Article of the Rules.”  Article XII incorporates by reference Section 101(a)(2) of the LMRDA, 29 USC 411(a)(2).  That provision states the following:

(2) Freedom of speech and assembly - Every member of any labor organization shall have the right to meet and assemble freely with other members; and to express any views, arguments, or opinions; and to express at meetings of the labor organization his views, upon candidates in an election of the labor organization or upon any business properly before the meeting, subject to the organization's established and reasonable rules pertaining to the conduct of meetings: Provided, That nothing herein shall be construed to impair the right of a labor organization to adopt and enforce reasonable rules as to the responsibility of every member toward the organization as an institution and to his refraining from conduct that would interfere with its performance of its legal or contractual obligations.

Based on these provisions, we find that Bales’ statements were protected by the Rules.  We further find that Aloise violated the Rules by bringing internal union charges against Bales for the protected speech.  Finally, we find that the trial panel, acting on behalf of Local Union 853, violated the same provisions by finding Bales “guilty” of the charges Aloise laid against him, even though the panel imposed no penalty against Bales for the cited conduct.  Our analysis follows.

            Aloise’s charges against Bales alleged that statements Bales made concerning Aloise’s candidacy for International office and Bales’ own candidacy for delegate brought reproach upon Local Union 853 because they were false.  However, whether Bales’ statements were true or false, he had the right under the LMRDA and the Rules to make them, and the law precludes union discipline for such statements even if they are false and malicious.  The law is clear that Bales could not be subjected to the charges here, and the trial panel had no legal basis to hold Bales in violation of the IBT constitution or the Local Union 853 bylaws.

            It is settled law that a union may not impose internal union discipline against a member for uttering even libelous statements about union affairs.  In Salzhandler v. Caputo, 316 F.2d 445 (2d Cir. 1963), the court held that “the LMRDA protects the union member in the exercise of his right to make such charges without reprisal by the union; that any provisions of the union constitution which make such criticism, whether libelous or not, subject to union discipline are unenforceable; and that the Act allows redress for such unlawful treatment.”  In Salzhandler, the union’s financial secretary accused other officers of misappropriation of union finances and distributed leaflets to that effect.  A trial committee empaneled by the union to consider charges that the financial secretary engaged in “acts and conduct inconsistent with the duties, obligations and fealty of a member or officer of the Brotherhood” found him guilty of the charges and removed him from office.  The United States Court of Appeals for the Second Circuit found that the financial secretary’s statements, even if false, fell squarely within the protection of the LMRDA.  The court reasoned:

[I]t would seem clearly in the interest of proper and honest management of union affairs to permit members to question the manner in which the union's officials handle the union’s funds and how they treat the union's members.  It is that interest which motivated the enactment of the statute and which would be immeasurably frustrated were we to interpret it so as to compel each dissatisfied and questioning member to draw, at the peril of union discipline, the thin and tenuous line between what is libelous and what is not.  This is especially so when we consider that the Act was designed largely to curtail such vices as the mismanagement of union funds, criticism of which by union members is always likely to be viewed by union officials as defamatory.

316 F.2d at 450-451.

Elaborating on this point, the court wrote:

The democratic and free expression of opinion in any group necessarily develops disagreements and divergent opinions.  Freedom of expression would be stifled if those in power could claim that any charges against them were libelous and then proceed to discipline those responsible on a finding that the charges were false.

316 F.2d at 451.  Explaining why the union discipline process could not be used to adjudicate charges based on criticism of officials, the court wrote “the union is not a political unit to whose disinterested tribunals an alleged defamer can look for an impartial review of his ‘crime.’”  316 F.2d at 450 (note omitted).[4]  Accordingly, the Salzhandler court concluded that the financial secretary “had a right to speak his mind and spread his opinions regarding the union’s officers, regardless of whether his statements were true or false.”  The court stated that “Congress has decided that it is in the public interest that unions be democratically governed and toward that end that discussion should be free and untrammeled and that reprisals within the union for the expression of views should be prohibited.”  Id.

            In Giordano v. Upholsterers International Union, 403 F.2d 85 (2d Cir. 1968), the Second Circuit elaborated on its Salzhandler holding.  The member in Giordano was subjected to internal union charges for accusing officers of his international union of misappropriating union funds.  The court observed:

‘The basic concern of the statute protecting union member’s right to free speech is not in the precise words said, but rather what was being talked about.  If the underlying topic of conversation concerns union affairs, then arguments, questions or accusations relating thereto are protected.’ * * * We made it clear in Salzhandler that one of the primary purposes of the Act was to curtail such vices as the mismanagement of union funds, and that the protection of union members’ right to discussion on this subject is an important safeguard to that end.  If unions could discipline such speech on the ground that it weakened their power as an institution, this safeguard would be rendered entirely ephemeral and ineffectual.

403 F.2d at 89-90 (quoting Nix v. Int’l Assn. of Machinists, 262 F.Supp. 1000, 1005 (N.D.Ga. 1967).

            In Petramale v. Laborers Int’l Union, 736 F.2d 13 (2d Cir. 1984), the Second Circuit drew a more restrictive line around the ability of a union to try a member and impose discipline for speech.  In that case, the court held that a union could not discipline a member for asserting that union officers were corrupt, viz.

We believe that a union may not validly discipline a member upon charges and a record which include accusations against union officers as an essential element. To hold otherwise would seriously undercut the protection offered by Salzhandler v. Caputo and substantially chill the exercise of union members’ rights by increasing the danger of subterfuge. Unions which institute disciplinary proceedings against members have no legitimate interest in making charges which allege protected conduct as an essential element and in creating a record in which valid charges – disruptive conduct – and invalid ones – accusations against union officers – are inextricably intertwined.

736 F.2d at 18.

The court followed this holding in Schermerhorn v. Transport Workers, 91 F.3d 316 (2d Cir. 1996), finding that “a union may not validly discipline a member for accusations he or she made against union officers.”  Id. at 324.  Further, “a union official who aids, abets, instigates, or directs a wrongful use of union power to deprive a member of his rights under §101 may be held liable under §102[.]”  Id., quoting Rosario v. Amal. Ladies Garment Cutters, 605 F.2d 1228, 1246-7 (2d Cir. 1979), cert. den., 446 U.S. 919 (1980).

            Accordingly, we conclude that Aloise, the principal local union officer, violated Section 101(a)(2) of the LMRDA and the Rules by bringing internal union charges against Bales for protected speech, and the local union, through its trial panel, violated the same provision by issuing its decision finding Bales guilty of the charges.

            It is immaterial that the trial panel imposed no discipline on Bales.  The decision found Bales guilty of bringing reproach upon the union by uttering what the panel termed “unfounded” and “reckless” statements that were “entirely without factual support.”  Such conclusions serve to expose Bales to the censure of the local union acting as such; it constitutes a penalty on Bales for protected speech and serves the improper purpose of chilling future speech by Bales and all other members of Local Union 853.

            Accordingly, we GRANT the protests.

Remedy

When the Election Supervisor determines that the Rules have been violated, he “may take whatever remedial action is deemed appropriate.” Article XIII, Section 4. In fashioning the appropriate remedy, the Election Supervisor views the nature and seriousness of the violation as well as its potential for interfering with the election process.

            On June 28, 2011, Aloise informed the Office of the Election Supervisor (“OES”) that he intends formally to withdraw his charges against Bales and will do so by letter no later than July 1, 2011.  The letter will also request that the trial panel withdraw its decision, dismiss the charges against Bales, and expunge the adverse decision from Bales’ membership records.  Aloise has also agreed to distribute a notice to all members of Local Union 853 stating that it was wrong of him to have filed charges and affirming the unfettered right of each member to criticize union officials.  We so order.  Aloise has agreed to sign a copy of the notice attached to this decision for distribution to the membership of Local Union 853.  We order that a copy of the signed notice be distributed by mail, first class pre-sort, to all members of Local Union 853, and that nothing other than the notice be included in the mailing.  This mailing is to be completed at Aloise’s expense.  He may use campaign funds to pay for the mailing.

            We further order Aloise to cease and desist from bringing internal union charges against Bales or any other member of Local Union 853 for speech protected by the Rules and the LMRDA.  We order Local Union 853 to comply with the Rules and the LMRDA whenever internal union charges are brought against any member for protected speech.

            We order the trial panel’s decision with respect to the charges Aloise laid against Bales vacated.  In its place, we order the trial panel to issue a decision dismissing the charges against Bales and expunging any other record of the charges against Bales.  To the extent that Local Union 853 has released, publicized or distributed the decision against Bales that we order vacated here to any member of Local Union 853, we order it to distribute the decision dismissing the charges against Bales in the same manner and with the same effect. 

            We order Local Union 853 to post the Election Supervisor Notice to All Members of Local Union 853 attached to this decision on all local union worksite bulletin boards and maintain the posting there until September 30, 2011.  In addition, we order the local union to post the notice on its website, www.teamsters853.org, in the secretary-treasurer’s report under the “Front Office” tab of the site.  It shall remain posted in the uppermost position of that page for a period of thirty consecutive days from date of initial posting.

            In the current election cycle, we found that Aloise violated the Rules by using union resources to solicit funds for his campaign for International office.  Among other remedies, we ordered that he refund contributions totaling $25,705 that he received through the improper use of those resources.  In addition, we ordered him to pay a fine of $3,856.  Reyes, 2010 ESD 59 (December 22, 2010), aff’d, 11 EAM 9 (January 11, 2011).  We ordered the fine in part because a previous protest decision against Aloise[5] failed to deter further Rules violations on his part.  Despite those earlier rulings, Aloise continues to violate the Rules.  Accordingly, we impose a fine against Aloise personally of $5,000. 

            All remedies ordered here must be completed within three days of issuance of this decision.  Each person or entity ordered to complete a remedy must file a compliance affidavit with our offices within two days of completion of the remedy.  The compliance affidavit Aloise submits shall further state that the $5,000 fine to OES for which he is personally responsible is paid solely from his personal funds and not funds from his campaign, that no other person, IBT member, candidate, slate, or campaign has transferred or contributed any funds to him for the purpose of paying all or part of the fine, and that he will refuse any such offer, transfer, or contribution.

            Finally, we order Aloise to cease and desist from further violations 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 Supervisor 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

885 Third Avenue, Suite 1000

New York, NY 10022

Fax: (212) 751-4864

Copies of the request for hearing must be served upon the parties, as well as upon the Election Supervisor for the International Brotherhood of Teamsters, 1801 K Street, N.W., Suite 421 L, Washington, D.C. 20006, all within the time prescribed above.  A copy of the protest must accompany the request for hearing.




[1] Aloise presented no evidence to support the charge that Bales “allud[ed] to some means of recording of a meeting.”

[2] Frank Halstead, member of Local Union 572, filed a protest in OES Case No. P-263-042611-FW, alleging inter alia that Bales withdrew his candidacy for delegate in exchange for assurance from Aloise that Bales would attend the IBT convention as an expenses-paid guest on union leave.  Halstead, by his counsel, withdrew the protest after investigation.  Halstead, 2011 ESD 287 (June 28, 2011).

[3] After the second protest was filed, Local Union 853 attorney Geoffrey Piller, who drafted the decision for the trial panel, complained to our office that OES “actively solicited the Bales protest which it is currently investigating.  Clearly this raises concerns over partiality and absence of bias with respect to administration of the Election Rules.”  Piller’s letter implied that the local union released the panel decision to a non-party, OES, and expected that the accused member would not learn of the result.  The suggestion has no basis.  The panel’s ruling related to an ongoing protest investigation, and Bales was properly contacted for a response.  We reject Piller’s claim that seeking evidence on a pending protest reflects partial or biased conduct.  Bales, as the accused, was entitled to know the panel’s adverse result in any event.

[4] This protest illustrates the court’s point.  At the time the hearing convened, six of the seven trial committee members had contributed to the Aloise campaign for IBT vice president, three (Becker, Valletta and Strelo) donating the maximum allowed amount (or nearly so), and three (Christian, Alarcon and Furtado) donating about three-fourths of maximum.  Two made additional contributions to Aloise’s campaign after the hearing and before rendering the decision.  Nothing in the record shows that these contributions were disclosed to Bales.  The IBT constitution provides that an “involved” officer or member cannot serve on a trial committee, participate in selecting committee members, or participate in deciding charges.  Article XIX, Section 1(a).  While there was no showing that any of the trial committee members were “involved” in the allegations in the sense that they were witnesses or had personal knowledge of the facts of the case, the six trial committee members who had contributed to the Aloise campaign for International office were invested in his election and therefore “involved” in the outcome.  That financial backers of Aloise’s IBT vice-presidential campaign sat to judge allegations about Aloise’s conduct in that campaign makes them direct participants in the wrongful use of union authority against Bales. 

[5] Certain Campaign Contributions by Officers and Employees of Local Union 853, 2006 ESD 341 (August 23, 2006); see also, 2006 ESD 350 (September 15, 2006). 

 

                                                                        Richard W. Mark

                                                                        Election Supervisor

cc:        Kenneth Conboy

            2011 ESD 286

DISTRIBUTION LIST (BY EMAIL UNLESS OTHERWISE SPECIFIED):

Bradley T. Raymond, General Counsel

International Brotherhood of Teamsters

25 Louisiana Avenue, N.W.

Washington, D.C. 20001

braymond@teamster.org

David J. Hoffa

Hoffa Hall 2011

1100 Connecticut Avenue, N.W., Ste. 730

Washington, D.C. 20036

hoffadav@hotmail.com

Ken Paff

Teamsters for a Democratic Union

P.O. Box 10128

Detroit, MI 48210-0128

ken@tdu.org

Barbara Harvey

1394 E. Jefferson Avenue

Detroit, MI 48207

blmharvey@sbcglobal.net

Fred Gegare

P.O. Box 9663

Green Bay, WI 54308-9663

kirchmanb@yahoo.com

Scott D. Soldon

3541 N. Summit Avenue

Shorewood, WI 53211

scottsoldon@gmail.com

Fred Zuckerman, President

Teamsters Local Union 89

3813 Taylor Blvd.

Louisville, KY 40215

fredzuckerman@aol.com

Robert M. Colone, Esq.

P.O. Box 272

Sellersburg, IN 47172-0272

rmcolone@hotmail.com

Carl Biers

Box 424, 315 Flatbush Avenue

Brooklyn, NY 11217

info@SandyPope2011.org

Julian Gonzalez

Lewis, Clifton & Nikolaidis, P.C.

350 Seventh Avenue, Suite 1800

New York, NY 10001-5013

jgonzalez@lcnlaw.com


Roger Bales

1748 Oriole Avenue

San Leandro, CA 94578

arsin69@comcast.net

Rome Aloise

250 Executive Park Blvd., Suite 3100

San Francisco, CA 94134-3306

raloise@teamsters853.org

Geoffrey Piller

Beeson, Tayer & Bodine

1404 Franklin Street, Fifth Floor

Oakland, CA 94612

gpiller@beesontayer.com

Michael J. Miller

1611 Granville Ave., #8

Los Angeles, CA 90025

miller.michael.j@verizon.net

Christine Mrak

2357 Hobart Avenue, SW

Seattle, WA 98116

chrismrak@gmail.com

Maria S. Ho

Office of the Election Supervisor

1801 K Street, N.W., Suite 421 L

Washington, D.C. 20006

mho@ibtvote.org

Kathryn Naylor

Office of the Election Supervisor

1801 K Street, N.W., Suite 421 L

Washington, D.C. 20006

knaylor@ibtvote.org

Jeffrey Ellison

214 S. Main Street, Ste. 210

Ann Arbor, MI 48104

EllisonEsq@aol.com