Protest Decisions

IN RE: ROBERT MASTERS,
Protest Decision 2001 EAD 202
Issued: February 27, 2001
OEA Case No. PR020615MW

Robert Masters, a member of Local Union 414 and candidate for delegate on the Wiedman-Royal (WR) 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"). His protest alleged that 1) the Local permitted access to its bulk mailing permit by the Lytle Experienced Team (LET), the opposition slate of candidates, without offering similar access to his slate, 2) campaign contributions to the LET slate exceeded the maximum permitted for individuals, and 3) Walt Lytle, secretary-treasurer of the local and vice president of the IBT, campaigned for the LET slate at a local union meeting and a similar opportunity was not offered to the WR slate.

Election Administrator representative Sue Fauber investigated the protest.

On February 21, 2001, we issued our decision in Masters, 2001 EAD 182, denying the bulk mail and campaign contribution portions of the protest, and severing the membership meeting allegation for further investigation. We resolve that remaining allegation here, and we do so by treating it as a post-election protest under Article XIII, Section 2(f)(2) of the Rules.

Findings of Fact and Analysis

The protestor alleges that Walt Lytle, the local's principal officer, made remarks in support of the LET slate at a membership meeting of the local's Supervalu unit held January 28, 2001. Investigation showed that the meeting was attended by as many as 100 members. One member, Dave Byer, told our investigator that, shortly after the meeting commenced, Lytle responded to a question about the upcoming convention stating that he would be attending the convention regardless of whether his team was elected.[1]  He continued, however, stating, "I want experienced people to go to the convention with me so we can get something done." He concluded by saying that "the others" hardly attended union meetings. Lytle had previously authored a letter to all members of the local contrasting the experience of the LET slate with the inexperience of the WR slate.

Lytle disputes this recounting. Although he acknowledges that he spoke about the convention at the meeting, he claims that he did so only to a small group of 7 or 8 individuals after the meeting was concluded and people were leaving. At that point, he claims he told the small group that he did not care who was elected but if the membership "votes for who they should vote for, my team will be going to the convention with me."

Our investigator questioned Byers about Lytle's recollection of events. Byers insisted that Lytle made his remarks at the beginning, not the end, of the meeting and did so over the public address system, not solely to the small group he claimed.

Article VII, Section 5(a)(4) instructs that "[a] Local Union shall not discriminate or permit discrimination in favor of or against any candidate in conjunction with its meetings or otherwise. This requirement shall apply not only to formal presentations by or on behalf of candidates but also to informal campaign activities, such as, for example, comments on candidates during meetings, literature distribution at meetings, literature distribution tables, etc."

This protest is being considered in a post-election context. Therefore, the Election Administrator must consider whether the violation "may have affected the outcome of the election," under Article XIII, 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). While a violation creates a presumption that the outcome was affected, that presumption "may of course be met by evidence which supports a finding that the violation did not affect the result." Id.; Dole v. Mailhandlers, Local 317, 711 F.Supp. 577, 581 (M.D. Ala. 1989); see also Platt, PT1 (March 14, 1996), rev'd on other grounds, 96 EAM 144 (March 29, 1996) ("To determine whether an effect exists, the Election Officer determines mathematically whether the effect was sufficient in scope to affect the outcome of the election and/or whether there was a causal connection between the violation and the result or outcome of the election."); Ford, 95 EAM 46 (December 20, 1995) (However, "where the benefit conferred by a violation is significant, and the vote outcome is close, the Election Officer need not find a definitive causal link between the two.")

The results of the election for four delegate and two alternate delegate seats were tallied February 23, 2001, and show the following [2]:

Thus, the margin of victory between the successful delegate candidate with the fewest votes (Stein of the LET slate) and the next candidate (Wiedman of the WR slate) is 467. Similarly, the margin between the successful candidate for alternate delegate who polled the fewest votes (LET's Swygart) and the next candidate (WR's Bennett) is 518.

Based on these substantial margins, we find it unnecessary to resolve the credibility dispute between Lytle and Byers. Even had Lytle made the comments in the manner alleged by Byers, we find they could not affect the outcome of the election. First, the alleged comments were mild in character. Second, the endorsement they conveyed would not be a surprise given that Lytle had lent his name to the LET slate and had actively campaigned for it. Finally, even had the 100 members attending the meeting been so persuaded by the remarks that they changed their allegiance from WR to LET, a highly questionable premise given the foregoing, the margin of victory for the LET slate would still be substantial. Accordingly, we find that Lytle's remarks, if made, did not affect the outcome of the election. This aspect of the protest is, therefore, DENIED pursuant to Article XIII, Section 3(b) of the Rules, even though the conduct, if committed, would otherwise violated Article VII, Section 5(a)(4).

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 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

2001 EAD 202

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

Robert A. Masters

6307 Allenwood Drive

Fort Wayne, IN 46835

IBT Local 414

Attn: Walter A. Lytle

2644 Cass Street

Fort Wayne, IN 46808

Sue Fauber

Stewart Jaffy & Associates

306 E. Gay Street

Columbus, OH 43215