Protest Decisions

OFFICE OF THE ELECTION SUPERVISOR

for the

INTERNATIONAL BROTHERHOOD OF TEAMSTERS

IN RE: CHRISTOPHER TOOLE              )           Protest Decision 2016 ESD 272

            & JEFFERY SCAGLIA,                 )           Issued: July 15, 2016

                                                                        )           OES Case Nos. P-235-032116-NE

            Protestors.                                          )                       & P-244-032616-NE

____________________________________)                                                         

            Christopher Toole, member and secretary-treasurer of Local Union 118, filed a pre-election protest pursuant to Article XIII, Section 2(b) of the Rules for the 2015-2016 IBT International Union Delegate and Officer Election (“Rules”).  The protest alleged that members of the Clean Slate impermissibly used the process for mailing campaign literature to the local union membership in the delegates and alternate delegates election for a mailing after the election had concluded. 

Jeffery Scaglia, member of Local Union 118, filed a post-election protest alleging that Local Union 118 impermissibly used union resources to respond to the Clean Slate’s post-election mailing. 

            Election Supervisor representative Peter Marks investigated these protests.  They were consolidated for decision.

Findings of Fact and Analysis

            Local Union 118 was entitled to elect five delegates and two alternate delegates to the IBT convention.  Two slates competed in this election.  All members of the Clean Slate, on which protestor Scaglia was a delegate candidate, were elected.  Protestor Toole was a member of the slate of candidates that was not elected.  The tally of ballots was completed on February 27, 2016.

            During the week of March 14, 2016, some two weeks after the election, members of the Clean Slate sent a postcard to the Local Union 118 mailing list.  The postcard was distributed by Corso Printing, the mailhouse contracted for the purpose of mailing campaign literature during the delegates and alternate delegates election and was paid for by personal funds of the members of the Clean Slate.  The mailing list used was the one that had been provided to the mailhouse by the local union for use in the delegates election.  Investigation showed that the list was not provided to any member of the Clean Slate nor did any such member inspect or otherwise obtain access to any information on the list. 

            On the side of the postcard on which the addressee’s name and address, the bulk permit stamp, and the return address appeared was a headline in a larger font that stated:

thank you “we won!!!”

the clean slate

On the reverse of the postcard 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!

Beneath this text were the names of all members of the Clean Slate.  Beneath their names was a photo of Local Union 118’s hall inscribed with this question: “When was the last time this place worked for you?”

            Article VII, Section 7 grants the right to each candidate to have campaign literature distributed using the local union’s membership list.  “Candidate” is defined as “any member who is actively seeking nomination or election for any Convention delegate or alternate delegate position or International officer position.”  Because the postcard mailing was done after the delegate election was over and all members of the Clean Slate were elected, none was a “candidate” under the Rules when the postcard was sent.  Accordingly, use of the mailing list provided pursuant to Article VII, Section 7 to send the Clean Slate postcard was unauthorized and in violation of that provision.

            As remedy for the violation, protestor Toole requested that the Clean Slate pay “the cost of printing and mailing of a direct response by the Executive Board of Local 118 to the entire membership so that we can answer their attacks.”  However, four days after Toole filed the protest, Local Union 118 president Paul Markwitz sent a letter to the local union membership responding to the postcard.  The letter was printed on local union letterhead and mailed in envelopes bearing the local union’s return address, was prepared by local union staff on time paid for by the union, with postage also paid by the local union.  The letter stated that it was sent in response to “a postcard to your home from a group identifying themselves as ‘the clean slate’.  The letter then made several claims.  It first contended that the individuals who sent the postcard impermissibly “gained access to your personal information,” in the next paragraph asserting that they wrongfully “obtain[ed] your personal information [to make] egregiously false statements to further a political agenda.”  As noted above, investigation showed that no member “obtained [the] personal information” of any local union member; instead, the postcard was sent using the mailhouse to which the local union had transmitted the membership list, and no member of the Clean Slate obtained the list. 

            Second, the letter touted the performance of the officers and business agents of Local Union 118, asserting that “this Executive Board … took a stand against corruption,” “operated your Local Union with the utmost professionalism and integrity,” attained “new financial stability,” and will “represent our Members with honesty and integrity!”

            We conclude that the local union response to the Clean Slate’s postcard constituted a parallel impermissible use of the local union membership list for a campaign purpose.  Both the local union’s letter and the Clean Slate’s postcard used the Local Union 118 mailing list in a way that was not authorized under and therefore violated Article VII, Section 7 of the Rules.  Both mailings were sent by members who were candidates in the delegates and alternate delegates election but no longer were.  The difference between the two mailings is that the Clean Slate’s postcard was done at the personal expense of the members of the slate, while the local union’s letter was done at union expense.

            Accordingly, we GRANT the Toole protest against the Clean Slate; we also GRANT the Scaglia protest against Local Union 118.

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.  “The Election Supervisor’s discretion in fashioning an appropriate remedy is broad and is entitled to deference.”  Hailstone & Martinez, 10 EAM 7 (September 14, 2010). 

We order the Clean Slate and each of the persons who signed the slate declaration for that slate to cease and desist from using the membership list transmitted to the mailhouse for the delegates and alternate delegates election for any further communication. 

We order Local Union 118, its officers and agents to cease and desist from using the membership list of the local union to transmit campaign material at local union expense. 

We further order Paul Markwitz, who signed the letter that responded to the Clean Slate’s postcard, to reimburse Local Union 118 for the cost of printing, stuffing, and mailing the letter.  According to the IBT’s final delegate strength calculations released in March 2016, Local Union 118 had 3,993 members at the time the letter was sent.  The postage cost for each piece was 48.5 cents.  Adding in letterhead, envelopes, printing, and labor, we conclude the cost per piece was 90 cents, and the overall cost to the local union was $3,593.70.  We order Markwitz to reimburse that sum to Local Union 118 no later than Friday, July 22, 2016.  If Markwitz requests the other members of the slate on which he ran for delegate to contribute to the reimbursement he is required to make, we order each member of that slate to contribute an equal amount, rounded to the nearest dollar, to Markwitz’s obligation.  We order Markwitz to notify us of his compliance with this remedy by declaration under penalty of perjury no later than Tuesday, July 26, 2016.

Finally, we order Local Union 118 to post on all worksite bulletin boards under its jurisdiction the notice attached to this decision.  The notice posting shall be completed by Friday, July 22, 2016 and shall remain in place through and including Friday, September 2, 2016.  Local Union 118 shall notify us of its compliance with this remedy by declaration under penalty of perjury no later than Tuesday, July 26, 2016.

A remedial order of the Election Supervisor takes immediate effect unless stayed.

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:

Kathleen A. Roberts

Election Appeals Master

JAMS

620 Eighth Avenue, 34^th floor

New York, NY 10018

kroberts@jamsadr.com

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, 1050 17^th Street, N.W., Suite 375, Washington, D.C. 20036, all within the time prescribed above.  A copy of the protest must accompany the request for hearing.

                                                                        Richard W. Mark

                                                                        Election Supervisor

cc:        Kathleen A. Roberts

            2016 ESD 272

DISTRIBUTION LIST (BY EMAIL UNLESS OTHERWISE SPECIFIED):

Bradley T. Raymond, General Counsel

International Brotherhood of Teamsters

25 Louisiana Avenue, NW

Washington, DC 20001

braymond@teamster.org

David J. Hoffa

1701 K Street NW, Ste 350

Washington DC 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

Teamsters United

315 Flatbush Avenue, #501

Brooklyn, NY 11217

info@teamstersunited.org

Louie Nikolaidis

350 West 31^st Street, Suite 40

New York, NY 10001

lnikolaidis@lcnlaw.com

Julian Gonzales

350 West 31^st Street, Suite 40

New York, NY 10001

jGonzales@lcnlaw.com

David O’Brien Suetholz

515 Park Avenue

Louisville, KY 45202

dave@unionsidelawyers.com

Fred Zuckerman

P.O. Box 9493

Louisville, KY 40209

fredzuckerman@aol.com

Teamsters Local Union 118

Paul Markwitz, President

130 Metro Park

Rochester, NY 14623

pmarkwitz@teamsterslocal118.org

Michael J. Maynard, Vice-President

mmaynard@teamsterslocal118.org

Chris Toole, Secretary-Treasurer

ctoole@teamsterslocal118.org

Al Hondorf, Recording Secretary

ahondorf@teamsterslocal118.org

Jeff Sargent, Trustee

jsargent@teasmterslocal118.org

Tim Johnson, Trustee

tjohnson@teamsterslocal118.org

Larry Thibault, Trustee

130 Metro Park

Rochester, NY 14623

Chris Camelio

newyorkcoin@gmail.com

Anthony Wells

awtrain64@aol.com

Gary Rindfleisch

g_rindfleisch@yahoo.com

Jeff Scaglia

jscagli1@rochester.rr.com

Ron Delcour

rdelcour2@gmail.com

Michael Figliotti

michaelfigliotti@gmail.com

David Baldwin

davidsb79@gmail.com

Peter Marks

116 Nagle St.

Harrisburg, PA 17104

pmarks@ibtvote.org

Jeffrey Ellison

214 S. Main Street, Suite 212

Ann Arbor, MI 48104

EllisonEsq@aol.com