Protest Decisions

IN RE: JOHN HULL, LARRY BARNETT and LOCAL 938 MEMBERS' SLATE
Protest Decision 2000 EAD 71
Issued: December 21, 2000
OEA Case No. PR112702CA

Michael Goldberg, attorney for John Hull, Larry Barnett and the Local 938 Members' slate, filed a pre-election protest pursuant to Article XIII, Section 2(b) of the Rules for the 2000-2001 IBT International Union Delegate and Officer Election ("Rules"), against Local 938 president Ray Bartolotti, alleging a violation of Article VII, Section 11(a), (c) and (g) through his conduct at a general membership meeting of Local 938 meeting on November 12^th, 2000 and by a letter from Bartolotti dated November 17^th, 2000 to Larry Barnett.

Election Administrator representative Gwen Randall investigated this protest.

Article VII, Section 11(a) provides, inter alia, that all union members retain the right to participate in campaign activities and to distribute campaign literature and otherwise solicit support for a member's candidacy outside a local union meeting hall before, during and after a union meeting. Article VII, Section 11(c) provides that union funds, facilities, equipment, stationery, personnel, etc., may not be used to assist in campaigning unless the union is reimbursed at fair market value for such assistance, and unless all candidates are provided equal access to such assistance and are notified in advance, in writing, of the availability of such assistance. Article VII, Section 11(g) prohibits retaliation or threats of retaliation by the union or any IBT member or other person or entity against a member, officer or employee for exercising any right guaranteed by the Rules.

Findings of Fact

Hull and Barnett are members of Local 938. Since at least May 2000 Hull, Barnett and others have made known their intention to run for the position of delegate in Local 938 as members of the Local 938 Members' slate. See McPherson, 2000 EAD 33 (October 6, 2000). Hull has also indicated an intention to run as part of the Tom Leedham Slate for the position of Canadian Vice-President. Bartolotti is the president of Local 938.

A general membership meeting of Local 938 was held at Thunder Bay, Ontario on November 12, 2000. Barnett and other members or supporters of the proposed Local 938 Members' slate attended. At the conclusion of the meeting, a local union member from Thunder Bay handed a three-page leaflet to Bartolotti. The leaflet was entitled "The Fortunate Five", "Your 'Vote' Counts", and "Canadian Teamsters". Bartolotti questioned the assembled members as to who had distributed the material. No one came forward. Barnett then spoke with Bartolotti and indicated that Bartolotti should refer to the bottom of the third page of the leaflets, which indicated that the leaflet was distributed on behalf of the Leedham Campaign.

Subsequently, Barnett received a letter by registered mail dated November 17, 2000, on the letterhead of Local 938 and signed by Bartolotti. The letter refers to the incidents described above which occurred at the November 12 meeting. The letter also refers to incidents on November 11, 2000, in which Barnett and others distributed the same leaflets at Reimer Express and Arnone Transport in Thunder Bay. Bartolotti says in the letter that this information came from persons at those companies. Bartolotti advised the Election Administrator representative that Barnett and his supporters had distributed the leaflets in the parking lots at these and other locations in Thunder Bay, including Circa Foods. The letter reads further:

This material contains malicious, scurrilous and unfounded accusations, misquotes and generally lack merit...I cannot accept nor tolerate these false accusations. I want you to realize that I take the distribution of this type of leaflet seriously....I shall give you the opportunity to respond to this letter and I would also request that you cease and desist any further distribution of this material and that you further renounce the false contents therein.

The letter is copied to Patrick Szymanski, IBT General Counsel and to Tom Leedham. The letter was typed at the offices of Local 938 by its secretarial staff. Bartolotti argues that because he is the president of Local 938 and, in his view, the material is "malicious and unfounded", he is entitled to respond, using the resources of the local union. It is also Bartolotti's position that because he became aware of the distribution of the leaflet at a general membership meeting of Local 938, he is also entitled to use the union's resources to respond to the leaflet.

Analysis

Article VII, Section 11(a) provides that all union members retain the right to participate in campaign activities, including the right to distribute campaign literature and otherwise to solicit support for a member's candidacy outside a meeting hall before, during and after a union meeting, regardless of union policy, rule or practice. Bartolotti's demand on Local 938 letterhead that opposition delegate candidates cease their criticism of Bartolotti is something that the local union may not do without violating Article VII, Section 11(a) of the Rules. While no explicit retaliation is threatened, the letter constitutes a demand by the union itself that members "cease and desist" from distributing protected campaign literature. This demand, carrying the imprimatur of the local union, violates the basic right of members to criticize incumbents without restraint by the union as an institution. It accordingly violates Article VII, Section 11(a) of the Rules.

It is also apparent that Bartolotti used local union facilities, equipment, stationery and personnel to respond to campaign literature that he regarded as "malicious and unfounded". Because Bartolotti's letter concerns campaign activity, preparation of that letter in the local's office, using its staff and letterhead, violates Article VII, 11(c) of the Rules.

For the foregoing reasons, the protest is GRANTED.

Remedy

When the Election Administrator determines that the Rules have been violated, he "may take whatever remedial action is appropriate." Article XIII, Section 4. In fashioning the appropriate remedy, the Election Administrator views the nature and seriousness of the violation as well as its potential for interfering with the election process. The violation here takes place against a background of prior conduct by Bartolotti that, although not found to be violative of the Rules, raises serious concerns about the need to maintain an environment in which a fair delegate election can be held at Local 938. In this regard, the Election Administrator has previously decided to have Regional Director Gwen Randall actively supervise the running of the local's delegate election. The events at Local 938 as described in 2000 EAD 33 and since that date require that a remedy be imposed here which assures that Local 938 members are assured that they are free to engage in their protected right to criticize their incumbent leadership in the context of the 2000-2001 delegate and International officer elections.

Based upon the foregoing, the Election Administrator orders the following:

1. Bartolotti is ordered to cease and desist from preventing or attempting to prevent Hull, Barnett, members and supporters of the proposed Local 938 Members' slate from distributing campaign literature and otherwise soliciting support for their candidacy or criticizing Bartolotti outside any meeting hall before, during or after a union meeting.

2. Bartolotti is ordered to cease and desist from preventing or attempting to prevent Hull, Barnett, members and supporters of the proposed Local 938 Members' slate from distributing campaign literature and otherwise soliciting support for their candidacy or criticizing Bartolotti in any parking lot used by the local union's members to park their vehicles in connection with their employment.

3. Bartolotti is ordered to reimburse Local Union 938 in the sum of $100.00 for use of the union's facilities, equipment, stationery and personnel in preparation of the November 17, 2000 letter, and to provide proof of such reimbursement to the Election Administrator within five (5) business days of his receipt of this decision.

4. Bartolotti is ordered to cause a copy of the attached notice to be posted on all union bulletin boards at all Local 938 worksites for a period of fifteen (15) from the date of posting, and to file an affidavit with the Election Administrator attesting to the fulfillment of this obligation at all such worksites.

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 Administrator 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

Suite 1000

885 Third Avenue

New York, New York 10022

Fax: 212-751-4864

Copies of the request for hearing must be served upon all other parties, as well as upon the Election Administrator for the International Brotherhood of Teamsters, c/o International Brotherhood of Teamsters, 727 15^th Street NW, Tenth Floor, Washington, DC 20005, all within the time period prescribed above. A copy of the protest must accompany the request for hearing.

William A. Wertheimer, Jr.

William A. Wertheimer, Jr.

Election Administrator

cc: Kenneth Conboy

2000 EAD 71

NOTICE TO MEMBERS OF IBT LOCAL 938

The Rules for the 2000-2001 IBT International Union Delegate and Officer Election ("Rules") protect the right of all IBT members to run for delegate, alternate delegate and International office, to support candidates of their own choosing for those offices, and to criticize the incumbent leadership of their local union as part of any such activity. The Rules further prohibit any interference by your local union and/or officers of your local union with such protected conduct.

The Election Administrator will not permit any such improper interference.

The Election Administrator has concluded that Ray Bartolotti, president of IBT Local 938, has violated the Rules by sending a letter on Local 938 letterhead demanding that Local 938 members cease and desist from engaging in activity protected by the Rules, and by using local union resources in preparing that letter. The Election Administrator has ordered Bartolotti to cease and desist from such conduct, to reimburse Local Union 938 in the sum of $100.00 for the cost of producing this letter, and to post this notice in all Local 938 workplaces for a period of fifteen (15) days.

Any protest you have regarding your rights under the Rules or any conduct by any person or entity which violates the Rules should be filed with William A. Wertheimer, Jr., Office of the Election Administrator, 727 15^th Street, NW, 10^th Floor, Washington, D.C. 20005, telephone 800-565-VOTE, telecopier 202-454-1501.

____________________

Ray Bartolotti

President

IBT Local 938

This is an official notice prepared and approved by William A. Wertheimer, Jr., Election Administrator for the International Brotherhood of Teamsters.

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