Protest Decisions

OFFICE OF THE ELECTION SUPERVISOR

for the

INTERNATIONAL BROTHERHOOD OF TEAMSTERS

IN RE: JEFFERY SCAGLIA,                   )           Protest Decision 2016 ESD 309

            RON DELCOUR &                         )           Issued: October 21, 2016

            ANTHONY WELLS,                       )           OES Case Nos. P-320-070716-NE

)           P-340-080816-NE, P-342-080916-NE,

            Protestors.                                          )           P-344-081116-NE & P-345-081216-NE

____________________________________)                      

Jeffery Scaglia, Ron Delcour and Anthony Wells filed five pre-election protests pursuant to Article XIII, Section 2(b) of the Rules for the 2015-2016 IBT International Union Delegate and Officer Election (“Rules”).  Each protest alleged that the protestor suffered prohibited retaliation under the Rules.

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

Findings of Fact and Analysis

Protestors Scaglia, Delcour and Wells were candidates on the Clean Slate in Local Union 118’s delegates and alternate delegates election.  The Clean Slate won all positions in that election, defeating the Markwitz 2016 slate that included local union elected officers. 

Local Union 118 will conduct its local union officers election in December 2016.  Up for election are the seven executive board and three business agent positions.  Markwitz 2016, comprised of incumbent local union officials, commenced its campaign several months ago and is expected to nominate its slate members at the nominations meeting in November 2016.  The Clean Slate is expected to contest this election with members who served on the local union’s delegation to the IBT convention in June.

On July 5, 2016, Scaglia discovered that flyers criticizing members of the Clean Slate in their roles as members of Local Union 118’s convention delegation and on bargaining committees had been distributed at employers under the jurisdiction of the local union and posted on the Markwitz 2016 Facebook page.  The flyers were titled “Not-So-Clean Slate No Call No Show at Convention,” “The Choice Is Clear,” and “Why Are We Down 100 Drivers Since 2014?”  The flyers claimed that two members of the convention delegation did not attend a portion of the convention, that the Markwitz 2016 slate has candidates and a platform for the local union officers election that are superior to those of the Clean Slate, and that past collective bargaining by members of the present Clean Slate resulted in lost jobs.  As this decision issues, these flyers remain posted on the “photos” tab of the Markwitz 2016 Facebook page. 

On August 6, 2016, two additional photos of flyers were posted to the Markwitz 2016 Facebook page.  The first, titled “Anthony Wells Travels in Style,” criticized Wells for accepting reimbursement of the expenses Local Union 118 was required to pay to members of its convention delegation.  The second, titled “Ron Delcour Caught Double Dipping,” criticized Delcour for accepting lost time reimbursement from the local union and from his employer for the work he missed during convention week.  The flyer concerning Delcour referred expressly to the upcoming local union officers election; the flyer on Wells did not but was posted side-by-side with the Delcour flyer on the same date.  As this decision issues, these flyers remain posted on the “photos” tab of the Markwitz 2016 Facebook page. 

On or about August 11, 2016, a photo of an additional flyer was posted to the Markwitz 2016 page.  Titled “If You Can’t Stand the Heat,” the flyer criticized Delcour and Wells for “trying to quash free speech rights.”  The flyer featured photos of the heads of Delcour and Wells superimposed onto cartoons of diapered babies, with photos of crying toddlers appearing elsewhere on the flyer.  This flyer referred expressly to the local union officers election; as this decision issues, it is not posted on the Markwitz 2016 Facebook page.

Scaglia, Delcour and Wells asserted that Markwitz 2016’s criticism of them constituted retaliation prohibited by Article VII, Section 12(g) of the Rules, arguing that they were targeted because of their protected activity in seeking and winning positions in the local union’s convention delegation.

We disagree.  We find that the flyers constituted campaign speech in the upcoming local union officers election, a contest over which we lack jurisdiction.  Camelio & Figliotti, 2016 ESD 274 (July 15, 2016).  Moreover, even absent a pending election, both the Rules and the LMRDA permit criticism (true or not) of elected officials, whether they are union officers or union delegates.

Accordingly, we DENY these protests.

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 309

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