Protest Decisions

IN RE: JAMES SCOGNAMIGLIO, 
Protest Decision 2001 EAD 334
Issued: May 1, 2001
OEA Case No. PR033111MW

See also Election Appeals Master decision 01 EAM 66 (KC)

James Scognamiglio, an independent candidate for delegate at Local 703, 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 Local 703 secretary-treasurer and delegate candidate Tom Stiede conducted a vote concerning a change in the local's bylaws in order to determine where support for his candidacy was lacking. He also alleges that Stiede and his supporters, including Local 703 president Chuck Murdoch, business agent Pat Bruno, and several stewards, circulated negative information about Scognamiglio at his workplace, on union time, two days after ballots were mailed.

Election Administrator representative Jason Weidenfeld investigated the protest.

Findings of Fact

On March 22, 2001, the IRB issued reports to Local 703 and recommendations that charges be filed against three current Local 703 members and one Local 703 retiree: Scognamiglio, Andy Gallina, Richard Ciesla, and retiree Dennis Donahue.

On March 23, 2001, at a Local 703 general membership meeting, the members voted on a resolution to have stewards elected, rather than appointed by the secretary-treasurer. Instead of taking a hand or voice vote, the officers running the meeting divided the house and determined that the proposal did not pass. Scognamiglio alleges that as many as ninety percent of the members voting against the proposal work at Dominick's Finer Foods ("Dominick's") or its sister warehouse, Donna's Distribution ("Donna's").[1]    Scognamiglio further alleges that the officers running the meeting used the division of the house to determine where they lacked support. The officers, on the other hand, allege that there has been one other vote for a bylaw change in the past six years, and that a division of the house decided it. Scognamiglio recalled a voice vote in that instance, while witness Bret Subsits, a Dominick's driver, recalled a secret ballot.

On March 27, 2001, Local 703 mailed ballots for its delegate election [2]. On March 29, 2001, Local 703 president Murdoch and business agent Bruno went to Dominick's to distribute the IRB reports on Scognamiglio and Gallina, who is not running in the delegate election. Bruno later visited Donna's for the same purpose. Murdoch and Bruno stated, according to several witnesses, that the purpose of their visit was to spread the truth about the IRB's investigations because, according to Murdoch and Bruno, Scognamiglio and Gallina had been spreading rumors that Murdoch and Stiede were under investigation. Murdoch also said that the large number of members at Dominick's required that at least a couple of stewards help pass out the reports.

According to an April 5, 2001 letter from Murdoch, on behalf of himself, Bruno, and Stiede, Murdoch delayed distribution of "the report" until March 29, 2001 because the local's executive board first had to review and discuss the report and decide on a response. In addition, Murdoch sought advice from counsel about whether the report could be distributed to members.

Murdoch's letter indicates that, in large part, the reasons for distributing the IRB reports were election-based. The letter states, "[I]t would have been inappropriate and would have interfered with the election if the elected officers had withheld information about the IRB reports and the action required of the Executive Board to cooperate with the IRB. . . . It is important that such information be provided to union members so that they can make an intelligent choice of who should represent them at the Convention."

The letter focuses on the truthfulness of the IRB reports and appears to argue that truth is an ultimate defense. For example, another section of the letter states, "[The negative] comments were being made in connection with the election of Convention delegates in order to try to convince people not to vote for Tom Stiede. . . . Thus, in order to respond to the false propaganda being provided to members, I provided truthful information…." (Emphasis added.) The date of distribution of the IRB reports coincided with the date when members could expect to receive their ballots for the delegate election.

After receiving the letter, our investigator spoke with Murdoch and Bruno on a conference call. They admitted that they had distributed the reports inside Dominick's and, to a much smaller extent, Donna's.[3]  On the phone call, Murdoch's focus shifted away from the truthfulness of the IRB report to an argument that Scognamiglio and Gallina constantly undermined the Local 703 leadership. The officers discussed the status of ongoing contract-related discussions with Dominick's. To obtain member support, the officers allege that they need to minimize the negative rumors spread by Gallina, Scognamiglio, and Scognamiglio's supporters. Contrary to the statements in his earlier letter, Murdoch said that his actions had "nothing to do with the delegate election."

As a final piece supporting his position, Murdoch related several past instances in which, he alleges, rumors arose regarding Murdoch's and Stiede's possible removal by the IBT. Murdoch stated that Bruno had heard about the rumors from several stewards working at Dominick's. He also allegedly heard the rumor directly from Gallina, but not from Scognamiglio. Murdoch and Bruno stated that they had not heard of the rumors from any worksites other than Dominick's and Donna's. Therefore, they did not distribute the IRB reports elsewhere.

Stiede also said that Scognamiglio and Gallina constantly undermined the Local 703 leadership by spreading lies at Dominick's. Stiede said that he, Murdoch, and Bruno collectively decided to distribute the IRB reports, although he did not personally distribute them. Stiede said that Local 703 is engaged in contract discussions with Safeway (Dominick's parent corporation) regarding work at Dominick's and needs member support, which Scognamiglio jeopardizes. Stiede expressed frustration with the alleged lies being spread by Scognamiglio, calling the cost and aggravation of dealing with them "ridiculous."

In support of his assertion that the distribution of IRB reports was unrelated to the delegate election, Stiede noted that he has on a previous occasion instructed stewards at Dominick's to distribute truthful, negative information about Scognamiglio. This happened well before the Local 703 delegate election period. According to Stiede, he did so to keep members informed about true events affecting the local union. Stiede indicated that Dominick's was the only place where Scognamiglio has a following, so to avoid being wasteful, the materials, as in this instance, were not distributed elsewhere. As mentioned previously, however, the letter sent by Murdoch on Stiede's behalf contains no evidence that an institutional interest prompted the distribution of the IRB reports.

Scognamiglio was not working when Murdoch, Bruno, and others handed out the IRB reports. He denies ever spreading a rumor that the IRB was investigating Stiede or Murdoch, calling it "completely ridiculous." Effectively, Scognamiglio believes, the actions of Stiede and his supporters have ruined the election. Scognamiglio provided the names of several witnesses who were working at Dominick's when the IRB reports were distributed: Bret Subsits, Kevin Karlowicz, Gallina, Kevin Davis, and Brian Truhlar.

Subsits entered the yard at Dominick's between 11:00 a.m. and noon. He says that he saw Bruno and several stewards handing out the literature. When he asked why they were doing this, a steward told him that Stiede and Murdoch were responding to Scognamiglio's and Gallina's rumors. Subsits believed that the report distribution was "purely political," "low and childish." Subsits wondered who paid for the copying and said that stewards on working time were distributing the reports.

Karlowicz, a Local 703 member employed at Dominick's, was about to leave after finishing his shift shortly before 7 a.m. on March 29, 2001, when he heard another employee say that the International was going to throw out Gallina and Scognamiglio. Karlowicz says that he saw several stewards handing out the reports. He heard Murdoch say that the reports were being distributed to set the record straight, but Murdoch did not identify who spread the alleged rumors. Karlowicz stated that he never heard the rumors. Karlowicz said that he twice asked Bruno who paid for the copies, and Bruno responded, "No comment." According to Karlowicz, Murdoch then said that he would pay for the copies if necessary. Bruno then said that he had paid for them. For at least some portion of time, Karlowicz alleges, he saw at least three stewards distributing the reports while on the clock. Karlowicz believes that the distributors' motivation was political and that Gallina's report was handed out to "make it look good."

Gallina also works at Dominick's and was working from 7 a.m. to 3 p.m. on March 29, 2001. He says that Murdoch, Bruno, and several stewards passed the reports out all day. Gallina said that charges were brought against Stiede more than a year ago but that he has heard no news about the charges. Gallina denies spreading rumors about IRB charges against Stiede or Murdoch. He stated that the officers needed to get support at Dominick's and timed the report distribution to accompany members' receipt of ballots. Gallina estimates that 700 reports were distributed, but offered no support for this number. The employer did nothing to stop the employer-paid stewards from spending their day passing out the IRB reports, so Gallina felt that the employer permitted campaigning on its premises in violation of the Rules.

Davis, another Local 703 member employed at Dominick's, said that Bruno gave him a copy of the IRB reports and said that Scognamiglio and Gallina will get their cards pulled. Davis felt that the reports were distributed so members would not vote for Scognamiglio in the delegate election.

Truhlar echoed other witnesses' statements and concerns. He expressed concerns about the cost of copying the reports. He was also surprised that the March 22, 2001 report was not mentioned at the March 23, 2001 membership meeting. Because Dominick's did not stop the employer-paid stewards from spending their day passing out the IRB reports, Truhlar felt that Dominick's permitted campaigning on its premises in violation of the Rules. Finally, as with other witnesses, Truhlar said that he had not heard any rumors about Stiede or Murdoch being spread by Scognamiglio or Gallina, although he heard that this was the impetus for the distribution of the reports.

Analysis

1. We DENY the protest with respect to the vote at the membership meeting. It does not appear that the manner in which the vote was conducted was unfair, and names of voters were not recorded. We have insufficient evidence to find that the charged parties intended to use the vote to support any candidates in the delegate election.

2. The Rules prohibit local union officers from campaigning on Union-paid time, except where such campaigning is incidental to regular union business:

Accordingly, officers and employees (and other members) of the Union may not campaign on time that is paid for by the Union. Campaigning incidental to regular Union business is not, however, violative of this section. Further, campaigning during paid vacation, paid lunch hours or breaks, or similar paid time off is not violative of this section.

...

No member may campaign for him/herself or for any other candidate during time that is paid for by the Union or by any employer. However, campaigning incidental to work or regular Union business or during paid vacation, paid lunch hours or breaks, or similar time off is not violative of the campaign contribution rules.

Rules, Article VII, Section 11(b) and Article XI, Section 1(b)(7). Similarly, Article XI, Section 1(b)(2) of the Rules prohibits employer contributions to a campaign, and includes within its prohibition a bar on those on an employer's payroll -- such as the stewards who assisted Murdoch and Bruno here -- from campaigning while paid by the employer to perform their steward duties. Article VII, Section 11(a) also bars non-incidental campaigning during work time.

The first issue here is whether the distribution of the IRB reports by Murdoch, Bruno and the stewards who assisted them constitutes "campaigning." Election Officer precedent 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 Judge 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] …

In this case, the content of the IRB's report is a "matter[s] of general concern" to the membership. Further, the tone of the report is not excessively personal.

Nevertheless, the timing and manner of distribution and the admissions in Murdoch's letter require 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 …" The reports at issue in this case were distributed solely at Scognamiglio's employer, Dominick's, which happens to be the largest employer of Local 703 members, and at its affiliate Donna's. Instead of printing copies for all Local 703 members, Bruno printed enough for distribution only at these two facilities. Even though the reports were issued on March 22, 2001, they were not distributed until two days after ballots had been mailed. Finally, Murdoch's letter offers an election-based rationale for distributing the reports. Accordingly, we find that the distribution of the Scognamiglio report by Murdoch, Bruno and the stewards was campaign activity.

In addition to finding that Murdoch, Bruno and the stewards campaigned against Scognamiglio, we find that such campaigning was on time either "paid for by the Union" or the stewards' employer and was not merely incidental to work or regular union business. First, neither Murdoch nor Bruno alleges that the distribution of the reports occurred "during paid vacation, paid lunch hours or breaks, or similar paid time off." Therefore, we find that the IRB reports were distributed during union-paid or employer-paid time.

Second, the distribution was not incidental to the regular work of Murdoch, Bruno or the stewards. Although Murdoch and Bruno may have engaged in other, legitimate local union business at Dominick's, this does not bring their actions into the realm of incidental campaigning. In Ranita, 96 EAM 130 (March 20, 1996), the Election Officer found a violation when a candidate tacked a campaign speech on the end of an otherwise legitimate union speech to members. Similarly, in this case, the copying and distribution of hundreds of IRB reports by Murdoch, Bruno and the stewards for campaign purposes was a major, time-consuming reason for the visit to the worksite. Under these circumstances, the incidental exception cannot apply. Accordingly, we find that the campaign activity of Murdoch, Bruno and the stewards violated Article VII, Section 11(a) and (b) and Article XI, Section 1(b)(2) and (7) of 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 ballots for the election of two delegates were tallied April 19, 2001, and show the following results, based on 622 counted ballots:

Delegate Candidates

Thomas Stiede - 485 Sam Scianna - 560  James Scognamiglio - 171

In addition, 67 challenged ballots were not resolved. Thus, a swing of 157 votes would have tied the election.

This margin, along with the Rules violation found here, is unfortunately sufficient to warrant a rerun election. Two hundred copies of the IRB report were distributed. The reports were such that they could have easily affected the voting intention of those who received them, whether from Murdoch, Bruno or the stewards directly, or from another employee that had received a copy from them. And the reports were without dispute circulated on union-paid time by union employees and employer-compensated stewards. Moreover, the distribution occurred just as ballots were arriving in the hands of voters, thus ensuring that the reports would have maximum impact, with the minimum opportunity for Scognamiglio to respond. In such circumstances, a rerun election is required.[4]

Based on these factors, we find the improper conduct of Murdoch, Bruno and the stewards may have affected the results of the election, and we accordingly GRANT the protest pursuant to Article XIII, Section 3(b) of the Rules.

Remedy

When the Election Administrator determines that the Rules have been violated, he "may take whatever remedial action is appropriate." Article XIII, Section 4. In fashioning the appropriate remedy, the Election Administrator views the nature and seriousness of the violation as well as its potential for interfering with the election process.

Based on the foregoing, we issue the following order:

1. Local 703 is directed to rerun its delegate election. The local is ordered to mail ballots on Tuesday, May 8, 2001 and conduct the tally of ballots on Wednesday, May 30. All candidates and slates that appeared on the original ballot will be listed in the same arrangement on the rerun ballot.

2. By May 8, 2001, Local 703 will post on all local hall and worksite union bulletin boards the notice attached to this decision as Exhibit A.

3. By May 8, 2001, Murdoch and Bruno will reimburse Local 703 the costs of their compensation for union-paid time spent distributing the IRB reports. They shall also reimburse by that date the employer of the stewards who assisted them with the distribution for employer-paid time spent distributing the IRB reports.

4. By May 8, 2001, the local and Murdoch and Bruno will submit an affidavit attesting to their respective compliance with paragraphs 2 and 3.

5. Bruno and Murdoch are each 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 15^th 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 334

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

 

IBT Local 703

300 S. Ashland Avenue

Room 502

Chicago, IL 60607

 

James Scognamiglio

1914 Springside

Naperville, IL 60565

 

Chuck Murdoch

2510 Ruth Fitzgerald Drive

Plainfield, IL 60544

 

Pat Bruno

3701 S. 59^th Street

Cicero, IL 60804

 

Andy Gallina

1262 McCormick

Carol Stream, IL 60188

 

Tom Stiede

2347 Worthing Drive

Naperville, IL 60565

 

Dominick's Finer Foods

555 Northwest Avenue

Northlake, IL 60164

 

Donna's Distribution Center

4400 W. 42^nd Place

Chicago, IL 60632

 

Dominick's Finer Foods, Inc.

Corporate Office

505 N. Railroad Avenue

Northlake, IL 60164

 

Dennis M. Sarsany

1829 Eddy St.

Chicago, IL 60657

NOTICE TO ALL MEMBERS OF LOCAL 703

The Rules for the 2000-2001 IBT International Union Delegate and Officer Election ("Rules") prohibit a candidate or slate from using union or employer resources to promote the delegate or alternate delegate candidacy of any person.

The Election Administrator will not permit any such violations of the Rules.

The Election Administrator has concluded that Local 703 president Chuck Murdoch and business agent Tom Bruno and employer-paid union stewards who assisted them violated the Rules by distributing documents critical of delegate election candidate James Scognamiglio while on union-paid or employer-paid time, in order to affect the results of the Local 703 delegate election.

To remedy this violation of the Rules, the Election Administrator has ordered Local 703 to rerun its delegate election. Ballots will be mailed on Tuesday, May 8, and counted on Wednesday, May 30. In addition, the Election Administrator has ordered Murdoch and Bruno to cease and desist from any further violation of the Rules and to reimburse Local 703 and the employer of the stewards who assisted them for the cost of their compensation while campaigning on union-paid or employer-paid time.

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.