Protest Decisions

May 29, 1996

VIA UPS OVERNIGHT

Anthony Mango & Anthony Fiori

May 29, 1996

Page 1

Anthony Mango

733 Barnsdale

LaGrange, IL 60525

Daniel Stefanski, Secretary-Treasurer

Teamsters Local Union 726

300 S. Ashland Avenue, Room 206

Chicago, IL 60607

Anthony Fiori

5917 S. Nashville

Chicago, IL 60638

Sandra Holub

Personnel Services Manager

Illinois Department of Transportation

201 W. Center Court

Schaumburg, IL 60196

Anthony Mango & Anthony Fiori

May 29, 1996

Page 1

Re:  Election Office Case Nos. P-673-LU726-CHI, Post-18-LU726-CHI

Gentlepersons:

Anthony Mango, a member of Local Union 726, filed a pre-election protest pursuant to Article XIV, Section 2(b) of the Rules for the IBT International Union Delegate and Officer Election (“Rules”), alleging that his employer, the Illinois Department of Transportation (“IDOT”), discharged him in retaliation for his support for International candidate James Hoffa and various Hoffa/Hogan slates in the Chicago area.  He also charges that Local Union 726 did not adequately represent him in this matter, also out of political animus.  The Election Officer deferred the protest for consideration post-election pursuant to Article XIV, Section 2(f)(2).

Anthony Fiori, a member of Local Union 726 and candidate for delegate on the Hoffa-Hogan 96 Slate (“Hoffa-Hogan” slate), filed a post-election protest pursuant to Article XIV, Section 3 of the Rules, alleging that:  (1) ballots of certain seasonal workers were improperly challenged and left uncounted for failure to pay their full initiation fees, although their fees were being paid by check-off and the final increments had accrued; (2) Local Union 726 produced an incomplete set of address labels for a Hoffa-Hogan slate campaign mailing; (3) Mr. Fiori never received an answer to an eligibility protest faxed to the Regional Coordinator; and (4) the

U.S. Postal Service refused to furnish him with “a copy of the supervisors at the main post-office who had access to the safe where the ballots were kept.”

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May 29, 1996

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These protests were investigated by Regional Coordinator Julie E. Hamos.

1.              Allegations of Retaliatory Discharge and Inadequate Representation:  P-673-LU726-CHI

Mr. Mango was an IDOT seasonal employee before being discharged on March 22, 1996.  His discharge letter, dated that day, states, “This is to advise that your services with the Illinois Department of Transportation will be terminated effective March 22, 1996 at the close of business due to conspiring to falsify State documents.”  IDOT contends that he was discharged when time sheets bearing Mr. Mango's name and signature were submitted for February 19, 20 and 21, when Mr. Mango was off absent from work.  Mr. Mango denies falsifying time sheets and claims that both his immediate supervisor and his steward knew that he was out of town observing the ballot printing and mailing for the Local Union 705 delegate election at the printer employed by the Election Officer.

Mr. Mango contends that his termination was “politically motivated,” due to his support for Mr. Hoffa and “various Hoffa/Hogan delegate slates running for office in the Chicago area, including Local 705 and Local 726.”  Mr. Mango also charges that his termination “might be the result of collusion between IDOT and Dan Stefanski, Local 726’s principal officer and a supporter of Ron Carey.”  To support that allegation, Mr. Mango asserts that his steward, Chester Stickowicz, refused to file a grievance on Mr. Mango’s behalf.  Mr. Mango alleges that

Mr. Stickowicz is a supporter of Mr. Stefanski and Mr. Carey.

In response, IDOT Personnel Services Manager Sandra Holub denied that Mr. Mango was terminated for political reasons.  She states that IDOT views “ghost payrolling” to be a potentially criminal matter that it takes very seriously.  In this case, Mr. Mango and another seasonal worker were terminated, and their supervisor was suspended for five days.  She further states that the collective bargaining agreement does not cover seasonal workers.  Therefore, the local union had no leverage with respect to Mr. Mango’s termination, although the local union may make a phone inquiry or request.  Ms. Holub states that she did receive a telephone call from Local Union 726 President John Falzone asking that Mr. Mango be reinstated, which she refused.

Mr. Falzone confirmed that the grievance procedure under the collective bargaining agreement does not extend to seasonal workers.  He states that the local union leadership will try to change that situation in the next round of negotiations.

Article VIII, Section 11(f) of the Rules provides,

Retaliation or threat of retaliation by the International Union, any subordinate body, any member of the IBT, any employer or other person or entity against a Union member, officer or employee for

exercising any right guaranteed by this or any other Article of the Rules is prohibited.

Anthony Mango & Anthony Fiori

May 29, 1996

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In evaluating charges of retaliation, the Election Officer has stated that allegations cannot be sustained “unless there is some evidence which connects, expressly or through reasonable implication, the protested conduct with the exercise of a guaranteed right under the Rules.”  Hammond, P-250-IBT-SCE (January 2, 1996); Vigil, P-595-LU63-CLA, et seq. (April 1, 1996), aff'd, 96 - Elec. App. - 167 (KC) (April 12, 1996). 

The Election Officer has reviewed the documents pertaining to Mr. Mango’s discharge.  The record reveals that through an anonymous telephone call to an IDOT supervisor, IDOT learned that Michael Riccio had signed for Mr. Mango while he was off absent from work.  After comparing the signatures, IDOT confirmed that Mr. Mango’s signature on the time sheets was not his own.  When Messrs. Mango and Riccio were confronted about the time sheets, they were advised this was a “good reason for firing.”  The report of the supervisor to his superior indicates that Messrs. Mango and Riccio apologized to the supervisor and “said they never realized it will come to this point.”  After this report was submitted by the supervisor to his superior, the recommendation was made that both men be terminated “earlier than March 31, preferably March 15.”[1]  Mr. Mango later denied any involvement with the time sheet falsification.  His immediate supervisor denied any involvement with the incident.  IDOT discharged

Messrs. Mango and Riccio and suspended Mr. Mango’s immediate supervisor, apparently for approving the time sheets.  A review of these documents corroborates the statements of

Ms. Holub.  There is no indication that the supervisory personnel who disciplined Messrs. Riccio and Mango and their immediate supervisor had any knowledge of Mr. Mango’s activities on behalf of Mr. Hoffa or his observation of the ballot printing.  The issue considered in disciplining Mr. Mango was the falsification of the time sheets. 

There is also no evidence of collusion between the local union and IDOT to seek

Mr. Mango’s discharge.  There is no evidence that the local union was even aware of the incident until IDOT acted to discharge Mr. Mango.  The person who apparently forged Mr. Mango’s signature on the time sheets, Mr. Riccio, was also a supporter of Mr. Hoffa and the Hoffa/Hogan delegates.  In fact the Election Officer finds that the local union attempted to intervene with IDOT on Mr. Mango’s behalf even though, as a seasonal IDOT employee, Mr. Mango was not covered by the collective bargaining agreement.  Thus, the local union had no obligation to take action on his behalf.  Mr. Falzone did, however, make an informal effort to have Mr. Mango reinstated by calling Ms. Holub.  This evidence shows that the local union did more for

Mr. Mango than it was required to do, not less.  In the absence of any contrary evidence, the reasonable implication on this record is that the local union did not engage in retaliation.  See Miller, P-504-LU147-MOI (April 23, 1996) (local union representation reasonable).

2.              Allegations of Mr. Fiori:  Post-18-LU726-CHI

A.              Allegation that ballots for certain seasonal workers were improperly challenged and not counted

Anthony Mango & Anthony Fiori

May 29, 1996

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Mr. Fiori states that Local Union 726 posted dues and initiation fees on the TITAN system on April 11, two days before the ballot count.  He asserts that the posting resulted in challenges to 468 ballots, of which 308 were left unresolved.  Mr. Fiori’s protest focuses on the particular situation of seasonal workers for the State of Illinois, whose initiation fees are paid by check-off in even increments over the five-month period that they work (November through March).  He contends that this check-off system resulted in full payment of initiation fees by the end of March, before the ballot count on April 13.  He alleges that the ballots of such workers were challenged for unpaid fees, however, due to the fact that the State of Illinois had not yet transmitted the final increments to the local union.  Mr. Fiori did not identify specific members.

Ballots were counted in the Local Union 726 delegate election on April 13, 1996.  Under procedures set forth in Article V, Section 9 of the Rules, challenged ballots were only resolved to the extent necessary to determine the winners.[2]

All challenged ballots shall be segregated . . .  All unchallenged ballots shall be counted first.  If the challenged ballots may not affect the outcome of the election, such ballots shall not be counted.  If the challenged ballots may affect the outcome of an election, challenges shall be resolved . . . by groups in succession.  Challenged ballots from each group resolved in favor of eligibility shall be counted until such time as the challenged ballots remaining no longer may affect the outcome of the election [at which time] the count shall cease and remaining challenges shall not be resolved.

These procedures guarantee that challenged ballots will be counted if they could possibly have an effect on the outcome of the election.  According to the official tally sheet for the Local Union 726 election, the count was stopped at a time when the narrowest margin separating a winning candidate and a losing candidate was 413 votes, and only 308 unresolved challenged ballots remained.  Under these circumstances, the remaining unresolved challenges could not possibly have affected the outcome of the election.  Therefore, stopping the count did not violate the Rules.  Rather, the section of the Rules quoted above required that the count cease at that time.

B.              Allegation that local union produced incomplete set of address labels for campaign mailing

Mr. Fiori’s slate made a campaign mailing on or about March 20, 1996, using labels requested from the local union pursuant to Article VIII, Section 7 of the Rules.  Section 7(d)

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requires that “[i]n complying with requests to mail literature, the Union shall use the current names and addresses that are on file for all relevant members in good standing.”

Mr. Fiori states that at the ballot count on April 13, 1996, he first realized that the local union had not provided his slate with a full set of labels for the campaign mailing.  He contends that his slate received 4,698 member's names from the local union, whereas he realized at the ballot count that the Election Office had mailed ballots to 5,334 members.  Thus, he concludes that his slate did not receive 636 member's names for its mailing.

The Election Officer finds that this allegation is untimely.  With respect to pre-election conduct, Article XIV, Section 2(b) requires protesters to file “within two (2) working days of the day when the protestor becomes aware or reasonably should have become aware of the action protested or such protests shall be waived.”

In this matter, Mr. Fiori’s slate sent two observers, Joseph Vercillo and Thomas Respondi, to Bladensburg, Maryland, in order to observe the printing and mailing of Local Union 726’s ballots at the printer and the mailing service employed by the Election Officer.  Mr. Fiori executed the credentials for both observers.  The printing and mailing took place from March 18 to March 20.

One of the main reasons to have observers where the ballots are printed and mailed is to ensure that the ballots are sent out to all ballot-qualified members.  When the ballots are printed and mailed for each delegate election, the printer and the mailer fill out a “Certification Re: Ballot Mailing” which is returned to the Election Office for filing.  The Certification for Local Union 726 indicates that 5,356 ballot packages were labeled, stuffed and mailed on March 20, 1996.  The Certification is signed by the two Hoffa-Hogan slate observers, Messrs. Vercillo and Respondi.  There is no question that the observers, who were present on Mr. Fiori’s behalf, were aware of the number of ballots mailed in this election.  Under these circumstances, the Election Officer finds that Mr. Fiori or his slate should have known of a discrepancy as large as the one he alleges in his protest.  The nearly four-week delay between the campaign mailing on or about March 20 and Mr. Fiori's protest filing on April 16 makes his protest untimely.

C.              Allegation that eligibility protest should be processed

Local Union 726 held its nomination meeting for delegate and alternate delegate candidates on February 16, 1996.  Mr. Fiori states that on February 19, he protested the eligibility of 16 nominees, nominators and seconders, all of whom were connected to the Fair and Equity slate.  He claims that he filed this protest by faxing it to Regional Coordinator

Julie Hamos.  He did not fax or send the protest to the Office of the Election Officer in Washington, D.C.

Anthony Mango & Anthony Fiori

May 29, 1996

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Ms. Hamos cannot find any protest filed by Mr. Fiori in her files.  However, she recalls that she may have received such a protest.  She never forwarded any protest received to the Election Office.  Since the Election Office in Washington, D.C. never received the protest, it was never docketed.  As a result, Mr. Fiori never received an acknowledgment letter that his protest had been received by the Election Office and providing him with a case number.  Mr. Fiori asks now that the protest be resolved post-election.

The Rules require that protests be filed with the Election Officer, not Regional Coordinators.  The Election Officer has been lenient in her interpretation of this requirement and processes and dockets protests received by Regional Coordinators and forwarded to the Office of the Election Officer in Washington, D.C.  The reason for requiring protests be filed directly with the Election Officer is to prevent the problem that may have occurred here--protests being misplaced or lost.  The administration of protests occurs in Washington, D.C. and not at the offices of the Regional Coordinators.  Mr. Fiori was well aware of this.  Mr. Fiori has filed four other pre-election protests,[3] including another protest arising from the nomination meeting, which he filed on the same day as his alleged eligibility protest (P-491-LU726-CHI).  Mr. Fiori filed all four of those protests directly with the Office of the Election Officer in Washington, and with respect to each, the Election Officer sent Mr. Fiori the standard acknowledgment letter giving the docket number, advising him who would be investigating, and furnishing other information.  He did not receive such a letter with respect to his alleged eligibility protest. 

In the nearly two months between his faxing that protest to the Regional Coordinator and his filing the current protest asking for consideration, the entire election campaign and mail- ballot election took place.  Furthermore, Mr. Fiori was well aware of the progress of events.  As noted above, he credentialed his slate’s observers for the printing and mailing of Local

Union 726’s ballots.  Minimal diligence in the prosecution of that eligibility protest required that he make some effort to check on its status before the election process concluded.  Moreover,

Mr. Fiori knew or should have known that the eligibility protest was not being processed in ample time to contact the Election Officer before ballots were mailed or counted.

Time limits are especially important in eligibility protests.  As the Election Officer stated in Stansburge, E-099-LU103-EOH (February 15, 1996):

The Rules contemplate the speedy resolution of pre-election and eligibility protests so that the election process will not be hindered.  The Rules balance the need to provide members with dispute resolution and enforcement procedures with the need to structure the election process so that it may proceed smoothly and efficiently.  For this reason, individuals who wish to challenge the eligibility of nominated candidates may do so, but only within a narrowly defined time limit.  This time limit insures that disputes have a chance to be investigated and resolved before their existence interferes with the printing or distribution of the ballot or the conduct of the election.

Anthony Mango & Anthony Fiori

May 29, 1996

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On the record in this matter, the Election Officer finds that the Rules would not be served by docketing and processing Mr. Fiori’s eligibility protest post-election. 

D.              Allegation that U.S. Postal Service refused to furnish information on safekeeping of ballots

Mr. Fiori asks that the Election Office furnish him with a list of “the supervisors at the main post office who had access to the safe where the ballots were kept.”  He states that he was told by Jesse Ramos, a ballot count observer for the rival Fair and Equity slate, that Mr. Ramos’ wife and two uncles worked there.  Mr. Fiori does not allege any impropriety at the post office and does not state a violation of the Rules.

Under Article III, Section 1(f) of the Rules, it is the responsibility of “[t]he Election Officer or her representative [to] secure a post office box for the return of . . . ballots . . .”  This procedure was followed for the Local Union 726 delegate election.

Accordingly, the protests in P-673-LU726-CHI and Post-18-LU726-CHI are DENIED.

Any interested party not satisfied with this determination may request a hearing before the Election Appeals Master within one day of receipt of this letter.  The parties are reminded that, absent extraordinary circumstances, no party may rely upon evidence that was not presented to the Office of the Election Officer in any such appeal.  Requests for a hearing shall be made in writing and shall be served on:

Kenneth Conboy, Esq.

Latham & Watkins

885 Third Avenue, Suite 1000

New York, NY 10022

Fax (212) 751-4864

Copies of the request for hearing must be served on the parties listed above as well as upon the Election Officer, 400 N. Capitol Street, Suite 855, Washington, DC 20001, Facsimile

(202) 624-3525.  A copy of the protest must accompany the request for a hearing.

Sincerely,

Barbara Zack Quindel

Election Officer

cc:               Kenneth Conboy, Election Appeals Master

Julie E. Hamos, Regional Coordinator