IN RE: KEITH NOLL and DON RICCIO,
Protest Decision 2001 EAD 294
Issued: March 31, 2001
OEA Case No. PR022713ME, PR030114ME & PR031511ME
See also Election Appeals Master decision 01 EAM 56 (KC)
Keith Noll and Don Riccio, members of Local Union 429 and candidates for delegate on competing slates, 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"). Each protest alleges members of a third slate - the Roc/DC slate - violated the Rules. Noll alleges the Roc/DC slate used the local's bulk mail permit on a campaign mailing without including the admonitory language required by the Rules. He also contends Rich Eline, alternate delegate candidate on that slate, improperly removed campaign literature from a worksite bulletin board. Riccio contends Thomas Rochowicz, local president and lead candidate on the Roc/DC slate, improperly used union resources to send a report to all members two days before ballots were mailed that praised the local's leadership and criticized Riccio. We deferred these protests for post-election consideration pursuant to Article XIII, Section 2(f)(2).
Election Administrator representatives William Kane and William Thompson II investigated these protests.
Findings of Fact and Analysis
Two full and two partial slates competed for the local's five delegate and two alternate delegate seats. Rochowicz and other local union officers and agents made up the Roc/DC slate. Bill Shappell, a current business agent, led the Shappell-Noll slate (S-N). Former local officials comprised the Riccio-Concordia slate (R-C). In addition, three candidates formed the Three for Hoffa slate (TFH), and one ran as an independent. Ballots were mailed February 28 and were counted March 27. Challenged ballots sufficient to affect the results of the election were resolved on March 29.
Use of bulk mail permit
Noll's first protest alleges a violation of Article VII, Section 7, which grants each candidate "a reasonable opportunity, equal to that of any other candidate, to have his/her literature distributed by the Union, at the candidate's expense." The provision obliges the union to "honor requests for distribution of literature" by "bulk-rate permit … utilized by the Local Union." However, Section 7(a)(3) requires that "[a]ll literature distributed through use of the nonprofit organization bulk-rate permit shall clearly state that it is campaign literature, the contents of which are not endorsed by the union."
Investigation shows the Roc/DC slate used the local's bulk permit to send a campaign flyer at candidate expense. The flyer did not include the admonitory language required by Article VII, Section 7(a)(3). Although the mailing was obviously campaign material, the rule's purpose is to advise the reader that the use of the local's bulk permit did not represent an endorsement by the union. Roc/DC's failure to include the appropriate language therefore violates the Rules.
Removal of campaign literature
On March 13, Rich Eline, business agent and candidate on the Roc/DC slate, removed literature that attacked his slate and promoted the S-N slate from a worksite bulletin board at Yeager Supply. Several employees saw Eline remove the flyer. One questioned his action, and Eline replied he was the business agent and could do what he wanted. Half an hour later, Eline gave the flyer, untorn and intact, to an employee who reposted it. He told the employee, "I was just f*****g with you." Eline admitted the action to our investigator, but explained the flyer was "upsetting" to him.
Article VII, Section 11(d) preserves for members and candidates the pre-existing rights they enjoyed to post campaign literature on worksite bulletin boards. It is undisputed that campaigning was permitted on the Yeager Supply bulletin board. Accordingly, Eline violated this provision by removing the flyer.
Further, Eline violated Article VII, Section 11(b) by removing the flyer while on union-paid time. Unlike Eline's actions described in Strause, 2001 EAD 206 (March 2, 2001), his conduct here was not incidental to union business. He substantially deviated from his prescribed duties to monitor the postings on the general purpose board and remove the "upsetting" one.
Finally, Eline invoked his official position as business agent to sanction his removal of the flyer. This action constituted a counter-endorsement of a candidate by a union official, which Article VII, Section 11(b) permits if done "solely in his/her individual capacity." Eline did not recite his title for identification purposes; he used it to justify his action and to add weight to it. Accordingly, the counter-endorsement violated the Rules.
Mailing of report critical of Riccio
Riccio alleges that local president Rochowicz mailed a report to all members criticizing Riccio's past performance as local officer. The mailing preceded ballot mailing by two days.
Frank Gillen, president of Joint Council 53, prepared the report on February 20. He did so in his capacity as the personal representative of General President James P. Hoffa, who had appointed Gillen to that position in August 2000, in order to investigate and resolve problems involving the local's health and welfare and pension funds. During the investigation, Rochowicz alerted Gillen to alleged financial irregularities committed by the immediate past administration of the local and Riccio in particular. Rochowicz accused Riccio of granting unapproved Christmas bonuses to officers and staff and accepting unearned salary and vacation pay. After investigation, Gillen found the allegations true. In his report to Hoffa, Gillen criticized Riccio extensively for the irregularities. In addition, he praised the present officers led by Rochowicz, writing:
The current administration of Local 429 faced numerous problems in its first year in office. My review of the actions of the current administration, however, convinces me that the officers and agents inherited many difficulties and addressed those problems head-on. The Local Union is functioning effectively on behalf of its members and the Local Union's Executive Board is acting in compliance with the Constitution of the International Union and the Bylaws of Local 429. I believe that the current officers and Executive Board are well-equipped to run the Local Union and recommend that my role as Personal Representative be ended.
Although the report is directed only to Hoffa, Gillen provided a copy to Rochowicz on February 22. Without Gillen's knowledge or approval, Rochowicz and others in the local's leadership decided to mail the report to the membership. To prepare the mailing they acted quickly, even paying a retiree and his wife to finish the work on Saturday, February 24. The report was sent on Monday, February 26; ballots were mailed two days later.
Article VII, Section 8 declares "[n]o publication or communication financed, directly or indirectly, by a Union may be used to support or attack any candidate or the candidacy of any person." We previously held in Pope, 2000 EAD 4 (August 1, 2000), aff'd 00 EAM 3 (August 29, 2000), that this provision incorporates the LMRDA standard enunciated in 29 USC 401(g):
In Reich v. Teamster Local 843, 149 LRRM 2358 (DNJ 1994), the court reviewed the law with regard to campaign content in union-sponsored media:
To establish a violation of Section 401(g), it is not necessary that the questioned publication be explicitly or implicitly committed to endorsing specific candidates or attacking the opposition. Rather, its overall tone, timing, and content must be evaluated to determine whether there is any blatant encouragement of the incumbent [or challengers].' [Citations omitted] … Regarding content, federal regulations interpret LMRDA section 401(g) as 'prohibit[ing] any showing of preference' by union-financed publications through praise, endorsement, criticism, or attack directed towards a candidate, 29 CFR Section 452.75 (1974) … [citations omitted]. In addition to the timing, tone, and content, courts often consider 'the circumstances surrounding the challenged publications.' [Citations omitted]
However, Election Officer precedent also provides:
Restrictions on campaigning must not be read so broadly as to restrict the right and responsibility of union officials to conduct their official business nor prohibit other members and subordinate bodies from criticizing the policies or official conduct of those officers.
Gilmartin, P32 (January 5, 1996).
As Election Appeals Master Conboy explained in Martin, 95 EAM 18 (October 2, 1995):
An incumbent has "a right and responsibility," as a union officer, to "advise and report to the membership on issues of general concern" to the membership, and is "entitled to use union publications to express [his] views." [Citations omitted] …
***
With regard to the tone and content prongs of the inquiry, courts have held that newsworthy articles or articles which contain purely factual information are generally permissible. [Citations omitted] …
Thus, as we held in Pope, supra, "to the extent that the articles at issue factually reported a newsworthy event, and the views of the [union] officers concerning that event, they are at least presumptively appropriate."
In this case, there is no question the content of Gillen's criticism of Riccio and his praise for the current management of the local are "matter[s] of general concern" to the membership. Further, the tone of his report is neither vituperative nor excessively personal.
However, the timing of the distribution here requires that we find a Rules violation. In Martin, supra, Judge Conboy ruled that certain published material did not violate the Rules but warned that "if these articles were published at or near the time that the delegate election process commenced … it is likely they would be in violation …" Gillen's report was sent to the entire membership immediately before ballots were mailed. Therefore, timing assumes the critical role here.
Rochowicz rushed to distribute the report as quickly as possible. While he may have the legitimate right to advise the membership of the personal representative's conclusions, he may not permissibly use union resources to rush delivery of the report at the most sensitive time in the delegate election. We find Rochowicz mailed the report for the purpose of swaying votes in that election and that he timed the mailing to achieve maximum impact on voters. Accordingly, he violated the Rules.
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, Post-1 (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 five delegate and two alternate delegate seats were tallied March 29, 2001, and show the following:
| Delegate | Alternate delegate |
|
Rochowicz (Roc/DC) 592 |
Timmons (Roc/DC) 608 Eline (Roc/DC) 596 Youst (S-N) 566 Bolig (S-N) 551 |
Thus, the margin of victory between the successful delegate candidate with the fewest votes (Breneman of the Roc/DC slate) and the highest polling unsuccessful candidate from an opposing slate (Sherman of the S-N slate) is 18. Similarly, the margin between the successful candidate for alternate delegate who polled the fewest votes (Roc/DC's Eline) and the next candidate (S-N's Youst) is 30.
Based on these narrow margins, we find the improper conduct of Rochowicz, Eline and the Roc/DC slate supporting that slate and attacking the S-N and R-C slates may have affected the results of the election.
For the foregoing reasons, and pursuant to Article XIII, Section 3(b), we GRANT the protests.
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.
Because the impermissible conduct of Rochowicz and Eline may have affected the results of the election, we issue the following order:
1. Local 429 is directed to rerun its delegate election. The local is ordered to mail ballots on Monday, April 9, 2001 and conduct the tally of ballots on Monday, April 30. All candidates and slates that appeared on the original ballot will be listed in the same arrangement on the rerun ballot.
2. Local 429 is directed immediately to post on all local hall and worksite union bulletin boards the notice attached to this decision as Exhibit A.
3. Within two (2) days of its compliance with paragraph 2, the local will submit an affidavit attesting to its compliance.
4. The Roc/DC slate will pay the full cost for a one-page mailing of campaign literature by each opposing slate and by the independent candidate in the Local 429 election, with such mailing to be conducted, if requested, by April 9, 2001.
5. The Roc/DC slate is ordered to cease and desist from any further violations 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 294
NOTICE TO ALL MEMBERS OF LOCAL 429
The Rules for the 2000-2001 IBT International Union Delegate and Officer Election ("Rules") prohibit a candidate from using a union publication or communication to support or attack any candidate. The Rules also prohibit the removal of campaign material from worksite bulletin boards where members and candidates have a pre-existing right to use those bulletin boards for campaign purposes. The Rules also prohibit a candidate or slate of candidates from using a union's bulk-mail permit for a campaign mailing without clearly labeling the material as campaign literature, the contents of which the union does not endorse.
The Election Administrator will not permit any such violations of the Rules.
The Election Administrator has concluded the Roc/DC slate violated the Rules in the following ways:
§ Members of the slate improperly used Local Union funds and personnel to send a communication to members for the purpose of supporting its slate and attacking the candidacy of another candidate.
§ A member of the slate improperly removed a campaign flyer of an opposing slate from a worksite bulletin board.
§ The slate improperly used the Local's bulk-mail permit for a campaign mailing without clearly labeling the material as campaign literature, the contents of which the union does not endorse.
To remedy these serious violations of the Rules, the Election Administrator has ordered Local 429 to rerun its delegate election. Ballots will be mailed on Monday, April 9, and counted on Monday, April 30. In addition, the Election Administrator has ordered the Roc/DC slate to pay the full costs of a campaign mailing by all opposing slates and independent candidates, if requested. Finally, the Election Administrator has ordered the Roc/DC slate to cease and desist from any further violation of the Rules.
Any protest you have regarding your rights under the Rules or any conduct by any person or entity which violates the Rules should be filed with William A. Wertheimer, Jr., Office of the Election Administrator, 727 Fifteenth Street, NW, Washington DC 20005, telephone 800-565-VOTE, fax (202) 454-1501.
William A. Wertheimer, Jr.
William A. Wertheimer, Jr.
Election Administrator
This is an official notice and must remain posted for thirty (30) consecutive days from the day of initial posting, and must not be altered, defaced or covered by any other material.
DISTRIBUTION LIST VIA AIRBORNE EXPRESS OR EXPRESS MAIL:
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
Keith Noll
508 Linden Street
Leesport, PA 19533
Don Riccio
P.O. Box 11
Leesport, PA 19533
Roc/DC Slate
c/o 1055 Spring Street
Wyomissing, PA 19610
Thomas Rochowicz
IBT Local 429
1055 Spring Street
Wyomissing, PA 19610
Rich Eline
194 Ridge Road
Mohnton, PA 19540
IBT Local 429
1055 Spring Street
Wyomissing, PA 19610
Shappell-Noll Slate
c/o 1055 Spring Street
Wyomissing, PA 19610
Thomas Tirdell
c/o 1055 Spring Street
Wyomissing, PA 19610
Three for Hoffa Slate
c/o 1055 Spring Street
Wyomissing, PA 19610
Frank Gillen
3460 N. Delaware Avenue
Suite 310
Philadelphia, PA 19134
Yeager Supply
1440 North 6th Street
Reading, PA 19603
William Kane
242 Old Haymaker Road
Monroeville, PA 15146