May 28, 1996
VIA UPS OVERNIGHT
Arthur Snow
3 Visby Avenue
Plainville, MA 02762
Anthony S. Buonpane, Secretary-Treasurer
Teamsters Local Union 443
200 Wallace Street
New Haven, CT 06507
Re: Election Office Case No. P-727-LU443-ENG
Gentlemen:
A pre-election protest was filed pursuant to Article XIV, Section 2(b) of the Rules for the IBT International Union Delegate and Officer Election ("Rules") by Arthur N. Snow, a member of Local Union 25. Mr. Snow alleges that while reading notices on a Local
Union 443 bulletin board, he noted several violations of posting requirements in the Rules. Specifically, the Local Union Plan Summary was missing, and the list of nominees failed to show slates and was printed on local union stationery that included names of officers and business agents. He also states that the list of nominees was dated more than five days after the local union's nomination meeting, indicating that it was posted late. The Election Officer deferred the protest for consideration post-election, pursuant to Article XIV, Section 2(f)(2).
This protest was investigated by Associate Regional Coordinator David F. Reilly.
Mr. Snow states that on April 14, 1996, while waiting for the dispatcher at a Stop & Shop facility in North Haven, Connecticut, to finish dispatching the 6:00 a.m. shift, he had time to look over the bulletin boards. When reading notices in the locked Local Union 443 bulletin board, he states that he noticed the deficiencies listed above.
Arthur Snow
May 28, 1996
Page 1
Local Union 443 is entitled to elect four delegates and three alternate delegates. The Tony Buonpane Experienced slate ("Buonpane" slate), headed by the local union's secretary-treasurer, is a full slate (consisting of four delegate and three alternate delegate candidates), and the New Team slate is partial (consisting of four delegate and two alternate delegate candidates). There are no independent candidates. The ballots were counted on April 18, 1996.
The official election tally sheet shows that 1,041 ballots were cast, of which 968 were counted. There were 22 void ballots and 51 unresolved challenged ballots. The challenges were left unresolved because the number was too small to affect any of the election results. The ranking of candidates was as follows:
Delegates
Rank Name Votes Slate
1 Frank "Babe" Maselli 636 Buonpane
2 Tony Buonpane 630 Buonpane
3 Bob Bayusik 628 Buonpane
4 Lenny Fiasconaro 602 Buonpane
5 Daniel J. Flanagan 345 New Team
6 Michael I. Rand 337 New Team
7 Lawrence Bogan, Sr. 324 New Team
8 Walt Kilijanski 309 New Team
Alternate Delegates
1 John Cascio 634 Buonpane
2 Dick Williams 628 Buonpane
3 Dominick Redente, Jr. 602 Buonpane
4 Louis G. Myers 349 New Team
5 David S. Gill 333 New Team
1. Allegation with respect to missing local union plan summary
Article II, Section 4(h) of the Rules requires that the secretary-treasurer of each local union "shall post a copy of the [Local Union] Plan Summary on Election Officer letterhead on all Local Union bulletin boards and shall maintain such posting through the entire delegate nomination and election period." By affidavit dated February 6, 1996, Mr. Buonpane certified compliance with this posting requirement. He also states that he remembers seeing the Local Union Plan Summary on the bulletin board in question on several occasions, although he has no explanation for why it was missing on April 14.
Arthur Snow
May 28, 1996
Page 1
As the Election Officer recognized under similar circumstances in Simpson, Post-27-LU305-PNW (May 1, 1991),
The Local was required to post the Summary and to repost it if advised that the posted Summary had been removed. It would constitute a violation of the Rules for the Local to direct or condone removal of the notice. However, the Local is not necessarily able to continually police each and every bulletin board. There is no evidence that the Local violated the Rules by failing to post or when notified, repost. There is no evidence that the Local directed, encouraged or condoned the removal of any posted Summary.
In the absence of any such evidence, the Election Officer finds that the missing plan summary observed by Mr. Snow did not violate the Rules.
2. Allegations with respect to the posted list of nominees
With respect to the local union's posting of nominees, Mr. Snow alleged three violations of the Rules. First, he states that the list of nominees did not show slate information. Under Article II, Section 6(a), the secretary-treasurer of each local union must post nominee lists "by name (and by slate affiliation, if known at the time)." Both slates in the Local Union 443 delegate election filed their slate declarations on February 18. The posted list of nominees was dated February 29. Therefore, slate affiliations were known at the time and were required by the Rules to be included.
Second, Mr. Snow notes that the nominee list was printed on local union stationery that included the names of local union officers and business agents. The inclusion of names violated Article II, Section 4(g) of the Rules, which provides that "'[e]xcept where otherwise provided by the Rules, every posting by the Union on Union bulletin boards required by this or any other provision of the Rules, shall be on Union letterhead that has no names of Union officers, business agents, staff or the like."
Lastly, Mr. Snow notes that Article II, Section 6(a) of the Rules requires that nominee lists be posted "[a]s soon as possible but in no event later than five (5) days following the nomination meeting(s) . . ." Local Union 443's nomination meeting took place on February 18. However, the nomination list was dated February 29, 11 days later.
Arthur Snow
May 28, 1996
Page 1
This protest is being considered in a post-election context. Therefore, the Election Officer must consider whether the violations “may have affected the outcome of the election,” under Article XIV, Section 3(b) of the Rules. A violation of the Rules alone is not grounds for setting aside an election unless there is a reasonable probability that the election outcome may have been affected by the violation. Wirtz v. Hotel Employees, Local 6, 391 U.S. 492, 507 (1968). A violation creates a presumption that the outcome was affected. Id. Once a violation is established, therefore, the Election Officer determines whether the effect of the violation was sufficient in scope to affect the outcome of the election. Id. Dole v. Mailhandlers, Local 317, 711 F. Supp. 577, 581 (M.D. Ala. 1989).
In this case, the smallest gap between a member who was elected and one who was not is the 257-vote margin between delegate candidates Fiasconaro (602 votes, or 62% of votes counted) and Flanagan (345 votes, or 36% of votes counted).
In the 1991 election, the Election Officer reviewed a similarly defective posting of a nominee list, in the post-election context, in Bryan, Post-66-LU988-SOU (April 30, 1991). In that matter, the list bore the signature of the president/business manager of the local union involved, and he was so identified. The posting also disclosed the slate affiliation of one slate but listed the members of the opposing slate as "nominated as an individual." The Election Officer found that those aspects of the list violated the Rules but did not affect the outcome of the election. With respect to the inclusion of the local union officer's name and title on the list, the Election Officer found that members already knew of his position in the local union and also knew "that his candidacy as a delegate was opposed by other candidates including those affiliated with the [opposing] slate." With respect to the non-disclosure of the slate affiliation of the opposing slate, the Election Officer found that members had been sufficiently educated about that affiliation by the opposing slate itself, through its campaigning.
The Election Officer's investigation in this matter revealed that Local Union 443's delegate election substantially repeated a local union officer election held six months previously, in October 1995. The same slates were involved in that election, and their composition was substantially the same. Mr. Flanagan, the candidate to receive the largest number of votes on the losing New Team slate in the delegate election, states that the local union's membership was campaigned extensively during the officer election, and that "people knew who we were." He stated his belief that the membership was aware of slate affiliations.
On this record, the Election Officer finds that the three defects in Local Union 443's nomination list had no effect on the outcome of the local union delegate election, separately or cumulatively. Although the printing of the nomination list on local union stationery showing names of officials was a violation, as was the omission of slate affiliations, these violations were sufficiently cured by the other ways in which the local union's membership was educated about the candidates and their affiliations, including the extensive campaigning that occurred previously in the local union officer election. While a delay occurred, the nomination list was posted three weeks prior to the ballots being sent to members.
Accordingly, the protest is DENIED.
This finding of no effect, however, does not excuse direct violations of posting requirements set forth in the Rules. Therefore, the Election Officer orders Local Union 443 to cease and desist from further violations of posting requirements, including those at
Article II, Section 4(g) and Article V, Section 2.
Arthur Snow
May 28, 1996
Page 1
An order of the Election Officer, unless otherwise stayed, takes immediate effect against a party found to be in violation of the Rules. In Re: Lopez, 96 - Elec. App. - 73 (KC) (February 13, 1996).
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
David F. Reilly, Associate Regional Coordinator