IN RE: TIM SYLVESTER,
Protest Decision 2001 EAD 288
Issued: March 31, 2001
OEA Case No. PR032011NE
See also Election Appeals Master decision 01 EAM 60 (KC)
Tim Sylvester, a Local 804 member and delegate candidate on the Leedham Rank and File slate (the "Rank & File 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"). Sylvester alleges that members and supporters of the BQM is the One slate (the "BQM slate") engaged in campaigning inside the Maspeth, Queens (New York) UPS facility. Sylvester also alleges that candidates on the Redmond slate entered the facility and may have campaigned. Sylvester states that the BQM slate and the Redmond slate are allied.
Election Administrator representative Jason Weidenfeld investigated the protest.
Findings of Fact
On March 19, 2001, candidates and supporters of the Rank & File slate and the BQM slate campaigned outside the Maspeth, Queens UPS facility. Sylvester campaigned with Rank & File slate delegate candidates Jim Reynolds and Steven Santos, as well as Tom Leedham campaign manager Matt Ginsburg, among others. Campaigners for the BQM slate included all three alternate delegate candidates comprising the slate -- Claude Bonaguro, Vincent Monte, and Bill Hoefer -- and non-candidate John Richiusa, a steward at the facility. According to the protestor, the BQM slate supporters handed out flyers, at least some of which were yellow. Richiusa confirmed that he handed out yellow flyers.
The flyers explicitly endorse both the BQM slate and the Redmond slate, with large check marks for each slate on a sample ballot, along with a complimentary statement about the BQM slate and a statement that the BQM slate supports the Redmond slate. The BQM slate comprises a full slate of alternate delegate candidates and no delegate candidates; the Redmond slate is a full slate of delegate candidates and no alternate delegate candidates.
During the evening, while the Rank & File supporters continued to campaign outside, the BQM supporters stopped campaigning outside. Bonaguro, a steward at another UPS facility, told our investigator that he entered the building, went to the men's room, and got a cup of coffee from the cafeteria. He said that two members of his slate, presumably Monte and Hoefer, showed him how to enter. Monte, a former Maspeth UPS facility employee who now works at another UPS facility, confirmed that he entered the facility to direct Bonaguro to a rest room. Hoefer, a steward at the Maspeth facility, said that he entered by himself to see a supervisor and saw Bonaguro and Monte inside the facility. John Richiusa, also a steward at the Maspeth facility, said that he entered the facility after campaigning in order to use the rest room and cafeteria. Bonaguro, Hoefer, and Richiusa each estimated their time inside the facility at between ten and twenty minutes.
Richiusa said that he entered the building with his remaining campaign materials in his hand. Bonaguro, Hoefer, and Monte each stated that they had no campaign materials when they entered the building. Bonaguro said that he had none left. Hoefer said that he handed his remaining materials to two drivers before entering. Monte said that he put his materials in his car before entering. All deny campaigning or handing out materials inside the Maspeth facility.
Bill Buhlert and Tony Donato, Local 804 business agents at the Maspeth facility and delegate candidates on the Redmond slate, did not campaign outside the building. They stated that they entered the building on union business, had no campaign materials, and had nothing to do with any alleged campaigning inside the facility. They also said that they witnessed no campaigning inside the facility.
The Rank & File slate supporters present a different story. Delegate candidate Steven Santos, a UPS employee at the facility who campaigned outside, said that he entered the facility after the BQM supporters stopped campaigning outside. He stated that he witnessed campaigning inside the facility by Monte, Bonaguro, Richiusa, Donato, and Hoefer. Santos also said that a driver exiting the facility handed him a flyer and that some of the flyers being distributed were yellow and others were white.
Although Sylvester, Reynolds, and Ginsburg did not see campaigning inside the facility from their vantage point outside the facility, all three stated that when the BQM slate supporters campaigned outside, drivers left the building without flyers. After the BQM supporters entered the facility, they allege, drivers started appearing with flyers in their hands.
Noncandidates employed at the Maspeth facility said that they received the flyers. Louis Spennato said that Richiusa "blindsided" him. According to Spennato, as he was punching out, Richiusa stuck the flyer in his hand and told Spennato that the flyer showed how he was going to vote. Spennato added that he saw Richiusa and Donato walking the floor of the building, handing out flyers. Kevin Frank, another employee at the facility, also said that he saw someone handing out flyers inside the facility, but he did not know the person distributing them.
Based on the totality of this evidence, we find that Richiusa brought and distributed campaign materials inside the facility. Furthermore, although the evidence does not clearly indicate who else campaigned inside the facility, we find that such campaigning occurred on behalf of the BQM and Redmond slates through materials supportive of both slates. Lastly, we find that no evidence presented supports a claim that Buhlert engaged in campaigning.
Analysis
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.
The campaigners who entered the Maspeth facility without UPS's knowledge took advantage of access to employees inside the facility. By entering the facility for campaigning purposes, the campaigners failed to follow UPS' policy, which we recently referenced in Speak, 2001 EAD 240 (March 15, 2001). UPS prohibits campaigning on its premises, except for campaigning on employee parking lots, which is permitted under Article VII, Section 11(e) of the Rules.
By accessing the inside of the UPS facility for campaigning, the BQM supporters indirectly appropriated a "thing of value" from UPS. Because employer contributions -- even contributions the employer does not know it is making -- are prohibited, we find that the dissemination inside the Maspeth facility of campaign flyers supporting the BQM and Redmond slates violates the Rules.
For the foregoing reasons, the protest is GRANTED.
Remedy
When the Rules have been violated, the Election Administrator "may take whatever remedial action is appropriate." Article XIII, Section 4. In fashioning the appropriate remedy, the Election Administrator considers the nature and seriousness of the violation, as well as its potential for interfering with the election process.
Accordingly, to remedy the violation, the Election Administrator orders the following:
1. Supporters of the BQM and Redmond slates shall cease and desist from receiving or taking any campaign contributions from any employer.
2. The BQM slate shall be responsible for posting the notice attached as Exhibit A on all worksite bulletin boards under the jurisdiction of Local 804 for a period of thirty (30) days from the date of posting. Posting shall commence no later than April 4, 2001 and shall be completed no later than April 6, 2001.
3. By no later than April 9, 2001, the BQM slate shall submit an affidavit to the Election Administrator attesting to its compliance with paragraphs 1 and 2 of this order.
4. The BQM slate shall submit a supplemental affidavit attesting to completion of the posting required above following the completion of the posting period.
An order of the Election Administrator, unless otherwise stayed, takes immediate effect against a party found to be in violation of the Rules. Lopez, 96 EAM 73 (February 13, 1996).
As a final matter, we recognize that ballots were mailed to Local 804 members on March 27, 2001 and will be counted on April 17, 2001. In light of the timing of our decision, we reserve the right to take further action in this matter should we determine that this violation may have affected the ultimate outcome of the election. Any party that seeks additional relief hereunder must notify the Election Administrator within three (3) business days after the posting of the local union's ballot tally certification.
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 288
DISTRIBUTION LIST (BY AIRBORNE EXPRESS):
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 804
34-21 Review Ave.
Long Island City, NY 11101
UPS/Maspeth Queens
UPS Building
4605-56th Rd.
Maspeth, NY 11378
Lindsay Marshall
UPS, Inc. Legal Department
55 Glenlake Pkwy. NE
Atlanta, GA 30328
Gary Tocci
Kim Kaplan
Schnader, Harrison, Segal & Lewis
Suite 3600
1600 Market St.
Philadelphia, PA 19103
Vincent Monte
1027 Theodora St.
Franklin Square, NY 11010
Claude Bonaguro
1120 Martin Stein Avenue
Bayshore, NY 11706
William Hoefer
72-41 66th Place
Glendale, NY 11385
Anthony Donato
46 Deserre Ave.
Staten Island, NY 10312
William Buhlert
110 Arbour St.
West Islip, NY 11795
John Richiusa
20 Honeysuckle Lane
Kings Park, NY 11754
Tim Sylvester
1773 E. 33rd St.
Brooklyn, NY 11234
Matt Ginsburg
30 3rd Ave.
Brooklyn, NY 11217
David Reilly
Reilly, Oliver & Olsen
22 W. Main St.
North Kingstown, RI 02852
NOTICE TO MEMBERS OF TEAMSTERS LOCAL 804
The Rules for the 2000-2001 IBT International Union Delegate and Officer Election (the "Rules") prohibit candidates and their supporters from accepting or taking any employer contribution, direct or indirect, that has the object or foreseeable effect of furthering the candidates' campaign for election.
The Election Administrator will not permit such Rules violations.
We have determined that materials supporting the BQM is the One slate and the Redmond slate were distributed in violation of the Rules when supporters of the slates campaigned inside UPS' Maspeth, Queens facility. UPS policy prohibits campaigning inside their facilities. We have ordered supporters of the BQM is the One slate and the Redmond slate to cease and desist from further Rules violations.
Any protest you may have regarding your rights to engage in campaign activities or interference with those rights under the Rules should be filed with the Election Administrator within the time period prescribed by the Rules.
William A. Wertheimer, Jr.
William A. Wertheimer, Jr.
Election Administrator
This is an official notice from the Election Administrator for the International Brotherhood of Teamsters and must remain posted for thirty (30) consecutive days, and must not be altered or defaced in any manner, or covered by any other material.