Protest Decisions

IN RE: TOM W. KRAUSE,
Protest Decision 2001 EAD 128
Issued: February 2, 2001
OEA Cases No. PR011513AT, PR011514AT, PR011611AT

Tom W. Krause, a member of Local 992 and delegate candidate on the Rank and File Reform Slate, filed three pre-election protests pursuant to Article XIII, Section 2(b) of the Rules for the 2000-2001 IBT International Union Delegate and Officer Election ("Rules"). The protests arise from events that allegedly occurred on January 14, 2001 during, or shortly following, Local 992's nomination meeting for its delegate election.

Election Administrator representative Jason E. Weidenfeld investigated these protests.

PROTEST PR011513AT

Krause alleges that Al Barlow, the person Local 992 chose to conduct its delegate election, intends to violate the guidelines of the Election Administrator's IBT Local Union Manual for Conducting Delegate Elections. Krause alleges that ballots will be placed in open mail trays rather than sealed mailbags.

Findings of Fact

Krause claims that Barlow told a secretary at the nomination meeting that postal trays would be used to transport voted ballots. Barlow recalls that at the nomination meeting he asked for mail trays to be available on the day of the count to assist in alphabetizing voted ballots but that he made clear that ballots would be transported in sealed mailbags. Darl Shreve, a Local 992 business agent and delegate candidate on the competing Woods Slate, attended the nomination meeting and corroborated Barlow's statement. We credit Barlow.

Analysis

We DENY this protest. Barlow said nothing inappropriate at the nomination meeting regarding the transportation of ballots. Even if he had misspoken, he and the local have assured us that they will transport ballots in sealed mailbags.

PROTEST PR011514AT

Krause alleges that Barlow violated the Rules by failing to follow certain requirements of the Local Union Plan form (the "LUP Form") promulgated by the Office of the Election Administrator. By his reading of the LUP Form, his slate is entitled to appoint three members of the election committee.

Findings of Fact

The Office of the Election Administrator created and distributed the LUP Form. Each local union was required to prepare responses to various items on the LUP Form, many of which concerned the manner in which the local would conduct its delegate election. The LUP Form contains several passages of preprinted information and instructions designed to assist local unions in preparing their responses.

Local 992 will elect three members-two delegates and one alternate delegate-to attend the IBT International Convention in Las Vegas in June 2001. The Reform slate is a full slate with three candidates. Krause argues that the Reform slate has the right to choose three members for service on the Local 992 Election Committee. As support, Krause cites the third sentence of text on the LUP Form: "Each candidate for office may designate one member of the local for service on the local union election committee, who shall be appointed by the President or Secretary-Treasurer."

Krause finds additional support for his argument in the text accompanying Item 3b of the Form. This item calls for "the names of any individuals whom [sic] have already been selected to serve on the local union election committee." Krause argues that this language implies that additional election committee members will be added at a later time. He further argues that these additions stem from each candidate's right to choose a member to serve on the Local 992 Election Committee. The local's approved response to Item 3b of the LUP Form lists six Election Committee members, all chosen by the current officers.

Barlow was unsure as to what rights, if any, the Reform slate had to place members on the Election Committee. He spoke with the incumbent leadership and Krause. Initially, both sides agreed to an arrangement whereby one local member designated by the Reform slate would serve on the Election Committee. Krause subsequently reflected on the agreement, reviewed the wording of the LUP Form, and filed this protest.

On January 23, 2001, the Reform slate provided the names of three members to serve on the Local 992 Election Committee. Subsequently, on January 26, 2001, Local 992 secretary-treasurer George Woods sent a letter to Krause informing him that the Reform slate was entitled to choose one Election Committee member until the Election Administrator's ruling, to which the local union would abide. In response, Krause provided the name of one member, while reserving his right to argue that the Reform slate had a right to choose three members.

Analysis

Notwithstanding the inartful language of the third sentence of the LUP Form, a reading of the Rules and the LUP Form as a whole indicates that candidates do not have a right to choose members of a local union election committee.

First, Article II, Section 4(b)(3) of the Rules states that a Local Union Plan must describe "the composition (e.g., rank and file members, Local Union staff, Local Union officers, etc.) of the Local Election Committee." The Rules thus clearly anticipate a local union election committee comprised wholly of current local union officers. Item 3a of the LUP Form mirrors the Rules' reference to the many possible ways of comprising an election committee, including a committee of current officers.

Second, Item 3b's request for the names of people who have "already been selected to serve" lends no support to Krause's argument. The Rules required that all local unions submit a proposed Local Union Plan to the Election Administrator no later than September 30, 2000.[1]  The wording of Item 3b merely reflects the Election Administrator's realistic expectation that many local unions would need to add members to their election committees between the end of September and the beginning of 2001. Furthermore, the language does not require additional committee members; it merely contemplates this possibility.

Third, the approved local union plan, which has been available to members for months, does not remotely contemplate that each candidate will choose a member of the election committee. The response to Item 3a of the LUP Form, which asks for a description of the election committee, states that the committee "will be made up of Local Union staff, Local Union officers and Retiree[s who] will assist the outside agency that has been selected by the Secretary-Treasurer of Local Union 992."

Finally, the Form itself does not support the protestor's argument. The sentence immediately following the sentence cited by Krauss states that "the Rules provide that . . . the local executive board may conduct the nomination and election." Item 3 of the LUP Form asks how the local union intends to conduct its election and offers four boxes from which to choose, including "Local Union Executive Board."

We find that, on the whole, the Rules and the LUP Form generally grant local unions flexibility to compose election committees as they see fit, with the proviso that candidates cannot serve on an election committee. Clearly, solely incumbent officers could comprise the committee, or executive board members could conduct the election. We, of course, will consider seriously any allegations that election committee members have not acted impartially, but we will not assume a lack of impartiality based on who appointed the members.

The Election Administrator understands that the Reform Slate currently has chosen one member to serve on the election committee. The Election Administrator DENIES the request that the Reform slate be granted the right to choose additional election committee members. The local union is instructed, however, to maintain the current composition of the election committee, including the one member chosen by the Reform slate. Any further changes to the approved Local Union Plan must be requested from and approved by the Election Administrator.

PROTEST PR011611

Krause alleges that an outburst by Barlow on the day of the nomination meeting evidences bias and robs members of confidence in the fairness of Barlow and the election process.

Findings of Fact

During the nomination meeting, Local 992 member Lou Cacciola, Jr. questioned Barlow twice about the proper composition of the Election Committee, citing part of the Election Administrator's preprinted Local Union Plan form.

Barlow did not know the answer and did not seek clarification from the Election Administrator. Instead, Barlow reached an agreement between secretary-treasurer George Woods, a delegate candidate on the Woods slate, and Krause, a delegate candidate on the Rank and File Reform slate (the "Reform slate"). The agreement permitted the Reform slate to choose one member to serve on the Election Committee.

Shortly after the agreement had been reached, either at the close of the nomination meeting [2] or directly after the close, Cacciola again questioned Barlow for a clarification regarding the proper composition of the Election Committee.

Aggravated by the insistent questioning, Barlow admits that he stated to Cacciola, "You're a TDUer." An affidavit from Cacciola states that Barlow first asked Cacciola whether he was a TDUer and then, after Cacciola did not reply, stated, "Well admit it; you're a damn TDUer." The affidavit states that Krause stepped in to ask what that had to do with the election. Krause stated that Barlow referred to Cacciola as a "damn TDUer."

George Woods and Darl Shreve, the two delegate candidates on the Woods slate, said that they heard Cacciola and Barlow arguing but could not hear the specifics. Woods and Shreve each admit to hearing Barlow say something about "TDU."

The Election Administrator finds that, at a minimum, Barlow referred to "TDU" or "TDUers" in a negative light.

Analysis

Article VII, Section 11(g) of the Rules prohibits retaliation by any person against any member for exercising a right guaranteed under the Rules. Cacciola's questions clearly come within his rights as a Local 992 member; Barlow's outburst amounts to retaliation. The Election Administrator cannot condone any statement by an entity conducting a delegate election that reveals hostility towards a specific group of members.

Barlow's statements, whatever the cause, call into question his ability to conduct Local 992's delegate election impartially. The Election Administrator cannot permit bias, or even the appearance of bias, to color any delegate election. For these reasons, the protest is GRANTED.

Remedy

The Election Administrator may "take whatever remedial action" necessary to cure a Rules violation. Art. XIII, Section 4. The Election Administrator finds that the appropriate remedy in this instance is removal of Al Barlow from continued participation in any aspect of Local 992's delegate election, effective immediately.

As of the date of this decision, and until further notice, an Election Administrator representative will assist the local union election committee in carrying out its duties in accordance with the approved Local Union Plan.

To inform all Local 992 members of this determination as soon as possible, the Election Administrator directs the local union to post the attached notice on all local union bulletin boards by no later than February 7, 2001. The notice shall remain posted through the conclusion of the local union election.

We instruct the local union election committee to contact the representative identified in the notice immediately and to inform the representative of the status of the local union delegate election.

An order of the Election Administrator, unless otherwise stayed, takes immediate effect against a party found to be in violation the Rules. Lopez, 96 EAM 73.

Any interested party not satisfied with these determinations 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 15^th Street, NW, 10^th Floor, Washington, D.C. 20005, all within the time period prescribed above. A copy of the protest must accompany the request for hearing.

William A. Wertheimer, Jr.

Election Administrator

cc: Kenneth Conboy, Election Appeals Master

Michael B. Nicholson, General Counsel

J. Griffin Morgan, Regional Director

Francis X. Sheridan, OEA Representative

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