IN RE: ROBERT McAULAY and DEREK JENSEN
Protest Decision 2001 EAD 264
Issued: March 26, 2001
OEA Case Nos. PR030211CA, PR0307111CA, PR030811CA, and PR030912CA
Robert McAulay and Derek Jensen, members of Local Union 938 and candidates for alternate delegate and delegate, filed 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"). They allege their right to post campaign literature on worksite bulletin boards was impermissibly impeded. We have deferred this protest for post-election consideration pursuant to Article XIII, Section 3(b) of the Rules.
Election Administrator representative Jeffrey Ellison investigated the protest.
Findings of Fact and Analysis
McAulay reports that literature he posted at Reimer Express on February 28 supporting the Hoffa Canadian Unity slate was removed when he returned the next day. Further, campaign flyers he posted at Cabano Kingsway February 28 were gone when he returned on March 2. Postings he made at Canadian Freightways, Western Canada Express and Overland Express on March 1 were missing when he visited the worksites again on March 8 and 9.
Jensen discovered on March 6 that literature he previously posted at Allied Systems' St. Thomas-Lambeth terminal supporting the Hoffa slate was gone.
In all cases, the individuals who removed the postings are unknown. However, the protestors assert that literature supporting the opposition 938 Members slate remained on bulletin boards, and they speculate supporters of that slate are responsible for removing the Hoffa slate literature. McAulay and Jensen report that opposition slate candidates are employed at Reimer, Cabano, Overland and Allied and that these worksites are political strongholds of that slate. The 938 Members slate, however, denies interfering with the posting rights of the Hoffa slate.
Article VII, Section 11(d) of the Rules preserves for candidates and members the preexisting right they enjoyed to post campaign literature on worksite bulletin boards. There is no dispute that campaigning is permitted on the worksite bulletin boards at issue here. Accordingly, removal of campaign literature under the circumstances presented violates the Rules.
However, 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 twelve delegate and three alternate delegate seats were tallied March 20, 2001. Each candidate for delegate and alternate delegate on the 938 Members slate was elected. The margin of victory between the successful delegate candidate with the fewest votes (Jephson with 1,310 votes) and the next candidate (Miles of the opposing slate with 783 votes) is 527. Similarly, the margin between the successful candidate for alternate delegate who polled the fewest votes (Wakaruk with 1,324 votes) and the next candidate (McAulay with 787) is 537.
Based on these substantial margins, we find the impermissible removal of the protestors' literature did not affect the outcome of the election, especially in light of the protestors' concession that the 938 Members slate enjoyed strong political support at the worksites at issue. Under these circumstances, there is no reasonable probability that an overarching shift of votes in favor of the Hoffa slate would have occurred in the absence of the violation. The protest is, therefore, DENIED pursuant to Article XIII, Section 3(b) of the Rules.
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 (fax: 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 264
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 McAulay
402-2177 Sherobee Road
Mississauga, ON L5A 3G9
Canada
Derek Jensen
103 Napoleon Drive
London, ON M5V 4B1
Canada
John Hull
3231 Eglinton Avenue East
Apt. 1705
Toronto, ON M1J 3N5
Canada
IBT Local 938
275 Matheson Blvd. West
Mississauga, ON L4Z 1X8
Canada
Ray Bartolotti
c/o Watson Kucey
Labour Lawyers
3555 Lakeshore Blvd. West
Toronto, ON M8W 1P4
Canada
Ray Bartolotti
63 Centennial Parkway South
Stoney Creek, ON L8G 6T1
Canada
Michael J. Goldberg
73 Harrowgate Drive
Cherry Hill, NJ 08003
Transport Cabano Kingsway
391 Creditstone Road
Concord, ON L4K 1N8
Canada
Western Canada Express
61 Administration Road
Concord, ON L4K 2R8
Canada
Reimer Express
5919 Shawson Road
Mississauga, ON L4W 3Y2
Canada
Canadian Freightways
5425 Dixie Road
Mississauga, ON L5A 3G9
Canada
Allied Systems
Attn: Thomas Duffy
160 Claremont Avenue
Suite 600
Atlanta, GA 30030
Allied Systems
1651 Colonel Talbot Road
London, ON N69 1J2
Canada
[1] Of 2,514 ballots cast, 2,298 valid ballots were counted, 38 were declared void, and 178 were challenged. The challenged ballots were insufficient to affect the results of the election and were not resolved.