IN RE: CARL PECORARO,
Protest Decision 2001 EAD 212
Issued: March 5, 2001
OEA Case No. PR020714ME
Carl Pecoraro, a member of Local Union 507 and a candidate for delegate, 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"). He alleges that alternate delegate candidate Richard Nichols accepted assistance from his employer by using the employer's distribution system to deliver campaign material to the employer's drivers. This protest was deferred by the Election Administrator for post-election consideration pursuant to Article XIII, Section 2(f)(2).
Election Administrator representative Sue Fauber investigated the protest.
Findings of Fact and Analysis
On February 6, 2001, the protestor complained to his employer, Sysco Food Services of Cleveland, that Nichols' campaign literature had been inserted in the pouches of all drivers from that terminal. Sysco's director of legal affairs investigated Pecoraro's complaint and learned that a clerical employee had distributed the material without Sysco's knowledge or approval.
Nichols reported that on February 5 he ran across the clerical employee, Frank Boykin, upon arriving for work. When Boykin offered to help Nichols with his campaign, Nichols gave him some flyers and asked him to take them to the drivers' room. Nichols next saw the material in the drivers' pouches the following day. Nichols denies that he asked Boykin to distribute his campaign material in such a manner. Boykin admits that he did so, but says it was on his own initiative and not at Nichols' request. Boykin is a non-bargaining unit Sysco employee.
Article XI, Section 1(b)(2) bars an employer from contributing:
directly or indirectly, anything of value, where the purpose, object or foreseeable effect of the contribution is to influence, positively or negatively, the election of a candidate. No candidate may accept or use any such contribution. … These prohibitions extend beyond strictly monetary contributions made by an employer and include contributions or use of employer stationery, equipment, facilities and personnel.
Further, Article XI, Section 1(b)(13) declares that "[c]andidates are strictly liable to insure that each contribution received is permitted under these Rules. Prohibited contributions must be returned promptly." Finally, Article XI, Section 1(b)(14) warns that "[i]gnorance by a candidate, by a union and/or by an employer that union or employer funds or other resources were used to promote a candidacy shall not constitute a defense to an allegation of a violation of these Rules."
Here, Nichols' campaign literature was circulated to drivers through Sysco's distribution system. Although Sysco neither knew or approved of this, the dissemination was nevertheless a "thing of value" which had the "foreseeable effect" of promoting Nichols' election. Accordingly, Nichols violated the Rules by accepting the contribution. Because the Rules provide for strict liability concerning receipt of employer contributions, Nichols' alleged lack of knowledge is irrelevant.
Since this protest is being considered in a post-election context, Article XIII, Section 3(b) of the Rules requires the Election Administrator to decide whether the violation "may have affected the outcome of the election…." 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 Administrator determines whether the effect of the violation was sufficient in scope to affect the outcome of the election. Id.; see also Dole v. Mailhandlers, Local 317, 711 F.Supp. 577, 581 (M.D. Ala. 1989).
The results of the election for three delegate and three alternate delegate seats were tallied February 26, 2001. Nichols lost the alternate delegate race by 780 votes out of 1138 votes cast. We accordingly DENY the protest under Article XIII, Section 3(b) because the improper employer contribution in support of Nichols did not affect the results of the election in the race that he contested.
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 (facsimile: 202-454-1501), all within the time 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 212
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
Carl Pecoraro
10437 King Coe Lane
Strongville, OH 44149
IBT Local 507
5425 Warner Road, Unit 7
Cleveland, OH 44125
Sysco Food Services
22801 Aurora Road
Cleveland, OH 44146
Richard Nichols
3907 Shadynook Lane
Mantura, OH 44255
Sue Fauber
Stewart Jaffy & Associates
306 E. Gay Street
Columbus, OH 43215
William B. Kane
242 Old Haymaker Road
Monroeville, PA 15146