IN RE: JOHN HULL and RAY BARTOLOTTI,
Protest Decision 2001 EAD 116
Issued: January 30, 2001
OEA Case Nos. PR0115113CA and PR012312CA
John Hull, a member of Local 938, 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. The protest alleges that Bartolotti delayed his compliance with our order in 2000 EAD 71 (December 21, 2000) that he post a notice to members of Local 938 on all Union bulletin boards at all Local 938 work sites for a period of 15 days from the day of posting. The notice required by 2000 EAD 71 advised the members of Local 938 that Bartolotti had 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, and assured the members that the Election Administrator would protect their democratic rights. The Decision was sent to all parties by UPS Next Day Air upon issuance. Hull alleges that Bartolotti has further compounded the initial violation found in 2000 EAD 71 and requests that as an additional remedy Bartolotti be required to mail to all Local 938 members one sheet of campaign material in support of Hull's Local 938 Members slate at Bartolotti's expense. The Election Administrator received Hull's protest at 2:15 p.m. on Monday, January 15, 2001.
Bartolotti in turn filed a pre-election protest pursuant to Article XIII, Section 2(b) against Hull alleging when Hull filed the protest referred to in the preceding paragraph he was aware that Bartolotti had in fact posted the notice required by 2000 EAD 71 and that Hull's new protest was an abuse of the protest process. Bartolotti also alleges that the notice posted pursuant to 2000 EAD 71 was tampered with in that it was highlighted with a yellow marker. Bartolotti further accuses Hull of campaigning for delegate on company time when he and Bartolotti had a confrontation at Hull's workplace on January 16, 2001. Bartolotti's protest was received in the Office of the Election Administrator on January 23, 2001, although the protest letter is dated January 17, 2001.
Election Administrator representative Gwen Randall investigated the protests.
Article XIII, Section 4, provides that where the Election Administrator determines that the Rules have been violated or that any other conduct has occurred which may prevent or has prevented a fair, honest, open and informed election, he may take whatever remedial action is appropriate. Article VII, Section 11(a) provides that no candidate or member may campaign during his/her working hours. Campaigning incidental to work is not, however, violative of this provision. Further, campaigning during paid vacation, paid lunch hours or breaks, or similar paid time off is permitted.
Findings of Fact
On January 2, 2000, Bartolotti sent a letter to the Election Administrator that reads:
"I have received the decision from your office regarding the above-noted matter. While I disagree with the conclusion given I see no reason to appeal and will reluctantly acquiesce to the instructions outlined in the decision." Yours truly, Ray Bartolotti.
This letter was copied to Hull, among others.
On January 10, 2001, Hull telephoned the Office of the Election Administrator in Washington, D.C. to advise that the notice required to be posted in the decision was not yet posted on Local 938's workplace bulletin boards. The Election Administrator's staff relayed Hull's claim to Canadian Regional Director Gwen Randall. On January 11, Randall telephoned Bartolotti, who confirmed that he had reimbursed Local 938 $100 for his improper use if union resources (as required by 2000 EAD 71), but acknowledged that he had not yet posted the notice. Bartolotti opined that his failure to post the notice was justified by the fact that the decision did not designate a specific day by which the notice was to be posted. Bartolotti also advised Randall that he had not wanted to post the notice until after the first nomination meeting at Local 938, which was held on Sunday, January 7, 2001 in Thunder Bay, Ontario. At that meeting, Bartolotti and his slate received delegate and alternate delegate nominations. Randall advised Bartolotti to immediately post the notice. (The local union's second nomination meeting was held on January 14, 2001 in Toronto.)
The Election Office received an affidavit from Bartolotti sworn January 16, 2001 that advised that the notice had been posted. Local 938 secretary-treasurer Clay Nickerson, a political adversary of Bartolotti, posted the notice at Hull's place of work, and confirmed that he had done so on the evening of January 15, 2001, after Hull filed his instant protest.
The confrontation between Bartolotti and Hull at Hull's work place took place on the evening of January 16, 2001, after the 2001 EAD 71 notice had been posted and after Hull's protest had been filed. Hull advises that he entered the lunchroom at his work place at approximately 11:30 p.m. that evening, on his regular usual paid break. The confrontation with Bartolotti then ensued.
Analysis
As our findings above indicate, Hull filed his instant protest before Bartolotti's compliance with the notice posting requirements of 2000 EAD 71 at his workplace. This was not an abuse of the protest process, and in any case, the right to file protests is protected under the Rules, our decisions, and the past decisions of IBT Election Officers. See,Jenne, 2000 EAD 64 (December 14, 2000); Scalf, P97 (August 16, 1995); Kieffer, P360 (March 19, 1996). The right to file a protest is paramount and generally may not be restricted. Koles, P487 (March 4, 1996).
Nor did Hull's confrontation with Bartolotti constitute campaigning on work time paid by Hull's employer. Hull was on a paid break at the time of the incident. Finally, there is no evidence that Hull or any of his supporters tampered with the 2000 EAD 71 notice.
Accordingly, Bartolotti's protest against Hull is DENIED.
On the other hand, Bartolotti's delay in posting the notices required by 2000 EAD 71 until January 15, 2001 meant that those notices were posted only after both of Local 938's first and second nomination meetings were held. We conclude that Bartolotti's contempt of the Rules and our decision in 2000 EAD 71 was intentional, given his admission to Gwen Randall that he had wanted to delay the posting at least until after the first nomination meeting in Thunder Bay, where his slate was nominated.
For the foregoing reasons, therefore, Hull's protest against Bartolotti 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 raises serious concerns about the need to maintain an environment in which a fair delegate election can be held at Local 938. We recently reviewed this background in our decision in Mazak, 2001 EAD104 (January 25, 2001), and held that any further Rules violations by Bartolotti after his receipt of that decision would result in his disqualification as a candidate in the Local 938 delegate and alternate delegate election. The violation here, however, precedes the issuance of that decision.
In order to remedy Bartolotti's inexcusable delay in posting the notice required by Local 938, we conclude that a broader notification to members of the local union is required. Accordingly, we order that within five (5) days of the issuance of this decision, Bartolotti cause to be mailed via first class mail a copy of the attached notice to the residence of each member of Local 938, and that he do so at his own expense. We further order Bartolotti to provide proof of this mailing to Canadian Regional Director Gwen Randall within eight (8) days of the issuance of this decision.
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, 727 15th 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
2001 EAD 116
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 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 his letter, and to post a notice concerning this in all Local 938 workplaces for a 15-day period.
The Election Administrator has also concluded that Ray Bartolotti violated the Rules by his intentional delay in posting the above-referenced notice in all Local 938 work places, and has accordingly ordered that this notice be mailed to the residence of all Local 938 members.
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 Election Administrator William A. Wertheimer, Jr., 727 15th Street, NW, 10th 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.
DISTRIBUTION LIST VIA UPS NEXT DAY AIR:
Patrick Szymanski
IBT General Counsel
25 Louisiana Ave. NW
Washington, DC 20001
Bradley T. Raymond
Finkel, Whitefield, Selik,
Raymond, Ferrara & Feldman
32300 Northwestern Highway
Suite 200
Farmington Hills, MI 48334
J. Douglas Korney
Korney & Heldt
30700 Telegraph Road
Suite 1551
Bingham Farms, MI 48025
Barbara Harvey
Penobscot Building
Suite 1800
645 Griswold
Detroit, MI 48226
Betty Grdina
Yablonski, Both & Edelman
Suite 800
1140 Connecticut Ave. NW
Washington, D.C. 20036
Tom Leedham c/o Stefan Ostrach
110 Mayfair
Eugene, OR 97404
IBT Local 938
Attn: Ray Bartolotti
275 Matheson Blvd. East
Mississauga, ON
Canada L4Z 1X8
John Hull
3231 Eglinton Ave. E.
Apt. 1705
Scarborough, ON
Canada M1J 3N5
Gwen Randall
421 Seventh Ave SW
Suite 3300
Calgary, AB
Canada T2P 4K9