IN RE: TIM BUBAN,
Protest Decision 2001 EAD 363
Issued: May 11, 2001
OEA Case No. PR041612MW
Tim Buban, a member of Local 200 and a delegate candidate on the winning Tom Leedham delegate slate (the "TL slate") in Local 200's delegate election, filed a post-election protest pursuant to Article XIII, Section 3(a) of the Rules for the 2000-2001 IBT International Union Delegate and Officer Election ("Rules"). Buban alleges that Local 200 has failed to post the election results at the local union's freight companies.
Election Administrator representative Jason Weidenfeld investigated the protest.
Findings of Fact
On April 7, 2001, the TL slate won Local 200's delegate election. On April 17, 2001, Local 200 secretary-treasurer Frank Busalacchi, who ran for delegate on the Members United slate (the "MU slate"), signed an affidavit attesting to the posting of a copy of the election results on each local union bulletin board. Busalacchi said that although the results were posted, he could not tell whether they were torn down.
Buban works at Consolidated Freightways ("CF"), and claims that the election results have not been posted on either of two local union bulletin boards there. Both of those boards are behind locked glass. Local 200 business agent Chris Varsos, who ran on the MU slate, is responsible for postings on these boards but says that he does not have keys for them. Varsos told our investigator that at the membership meeting, he gave copies of the results to two CF stewards, Eric Jorgensen and Ken Nicholson, and asked them to post.
Jorgensen, who ran on the MU slate, says that he was not asked to post the results, which he picked up at the union office. Jorgensen has a key to the locked boards and believed that Varsos had a key as well. Jorgensen thought that Varsos had posted previous election-related materials. Jorgensen says that the results were posted on a bulletin board next to the glass-enclosed union board for about a week, and claims that he does not know who removed them. Jorgensen also says that the results were posted initially on all four boards at the company, including the outside of the glass on one of the union's glass-enclosed boards. When discussing why the delegate election results might no longer be posted on the boards, Jorgensen commented on their small size and said that when a new item must be posted, an existing item must be removed.
Nicholson said that Varsos told him to post the election results. Nicholson said that all road driver stewards have access to the union's glass-enclosed bulletin board in the driver's room and that he had not previously been asked to post materials related to the delegate election. Varsos indicated, nevertheless, that this board is Nicholson's responsibility, and Nicholson said that he has a key to the board. When Nicholson went to post the results in the drivers' room, he saw them on the board next to the glass-enclosed union board. Therefore, he did not post them. Nicholson told our investigator that the results are no longer posted on either board and that they may have been torn down. Nicholson says that if he still had a copy of the results, he would post them immediately. When speaking with our investigator on May 9, Varsos said that he had ensured that the election results were reposted inside the board maintained by stewards other than Nicholson. Varsos also said, however, that Nicholson is a driver, so it is difficult to know when he will be able to post the results.
Buban provided additional Local 200 members as witnesses: Darryl Connell, Tom Kempinski, Fred Sherell, and Reggie Turner.
Connell says that at his worksite, ABF Freight in West Allis, Wisconsin, all previous election documents were posted on the local union bulletin board. The results of the election, however, have yet to appear on that board. Connell says that he posted the results on an employee board but did not do so on the union board, which is not enclosed. Varsos is responsible for ensuring that postings are made on the union board. Steward Mike Tobias says that he posted the results on one of two adjoining boards and that Connell had already posted on the other board. Tobias, who did not run in the delegate election, says that the slates competed vigorously in the election and that when he is not around, he cannot stop members from tearing things down. He says that the results had been torn down but that Connell had reposted them.
Kempinski says that at Roadway Express's Milwaukee (Oak Creek) terminal, there are three locked, glass-enclosed bulletin boards. Local 200's official bulletin board list submitted to the Election Administrator indicates that there are two union boards at this location -- one in the lower lunchroom and the other in the front dispatch office. Kempinski estimates that at least fifteen people have requested election results, which have not been posted on any union bulletin boards. Varsos is responsible for postings at Roadway Express. He said that he gave the results to stewards Tom Malsack and Pat Flanagan. Both men ran on the MU slate in the delegate election.
Malsack says that he was asked to post the results and did so on the union's glass-enclosed bulletin board in the lunchroom. Malsack says that Varsos has posted other delegate election materials. Malsack also says that the results stayed posted for at least a week, but he did not know how soon thereafter they were removed. Malsack says that the board cannot hold many things, so information gets rotated in and out regularly. Malsack also says that an open board already had the results posted when he posted them on the enclosed union board. The open board no longer contains the posting. Malsack initially said that there was only one glass-enclosed union bulletin board. When asked specifically about the second glass-enclosed union board (front dispatch office), Malsack says that he posted there too. After Varsos spoke with our investigator, he checked the Roadway postings and says that the front dispatch office posting was made on the Wednesday after the election and remains posted. He also indicated that the lunchroom posting was never torn down; it was covered with other material and has now been cleared. Our investigator could not reach Flanagan.
Sherell says that the election results were taped to the outside glass of a locked, glass-enclosed bulletin board at the Central Ready-Mixed Concrete worksite at 5013 West State Street in Milwaukee. Sherell says that older postings inside the glass include earlier notices regarding the delegate election. Rick Schermerhorn, the business agent responsible for postings at the worksite, gave the results to steward Dennis Groholski to post. Groholski says that the company has the key to the glass-enclosed union board and that the results were posted on the outside initially. Groholski could not recall whether he or another person posted the results. On May 7, 2001, the results were still on the outside of the glass; Groholski asked the company to open the glass, and he put the results on the board inside the glass.
Turner works at USF Holland in Milwaukee. Expecting that the local union would not post the results, Turner did so two days after the election. The results have not been torn down. The local union has not posted additional copies.
We find that at CF and Roadway Express (Milwaukee terminal), Local 200 representatives either failed to post the results or did so for a very brief period and then removed or covered the postings. We also find that at ABF Freight, Local 200 representatives made no effort to replace postings that were torn down. Busalacchi relied on his business agents when signing the affidavit attesting to the posting of the election results. Varsos, in turn, did not actively check to see whether postings occurred or were maintained on the local union boards for which he was responsible.
Analysis
Article II, Section XII of the Rules requires the "Secretary-Treasurer of the Local Union [to] post a copy of the official election tally sheet on all Local Union bulletin boards" within seven days after completion of the count and to maintain such postings for a minimum of thirty days. Within three days after the results have been posted on all boards, the secretary-treasurer must send to the Election Administrator an affidavit attesting to the completed postings.
Contrary to Busalacchi's affidavit, postings had not occurred on every Local 200 bulletin board. Furthermore, these postings were not maintained for thirty days. Of particular concern is the failure to post and maintain postings on glass-enclosed boards that are not accessible to members generally. Regardless of the election outcome, Local 200 and its secretary-treasurer have ongoing obligations under the Rules, and these obligations have not been met. We, therefore, GRANT the protest.
We do not find a violation for the improper manner in which the results were posted at the Central Ready-Mixed Concrete worksite. The purpose of posting the election results is to keep members informed. This purpose has been served without interruption, even though the posting should have been inside the glass initially. The results were not torn down and have since been placed inside the glass case. Therefore, we deem this portion of the protest RESOLVED.
Likewise, we find that Turner's posting of results at USF Holland made it unnecessary for Local 200 to post another set of results, especially since the results have not been removed. Thus, this portion of the protest is DENIED.
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.
Local 200 made insufficient efforts to insure that the election results were posted and maintained for the requisite period. Busalacchi attested to the posting of election results but made no effort to ensure that they remained posted for thirty days. Varsos became active in overseeing the posting of election results only after the protest was filed. Certain stewards who ran in the delegate election did not post the results or claimed that they had to be removed for more pressing matters.
Under these circumstances, we order the following:
1. Local 200 must post the election results by May 15, 2001 on all Local 200 bulletin boards at CF, ABF Freight's West Allis facility, and Roadway Express's Oak Creek facility. The results must be posted inside the glass on any glass-enclosed boards;
2. Local 200 must maintain these postings through June 15, 2001;
3. During the period when the results must remain posted, business agents and stewards responsible for the postings must repost them within one business day of becoming aware that they are no longer posted; and
4. Busalacchi must send an affidavit to the Election Administrator by June 20, 2001 attesting to the posting and maintenance of the election results in compliance with this decision.
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).
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 363
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Patrick Szymanski
IBT General Counsel
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Bradley T. Raymond
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J. Douglas Korney
Korney & Heldt
30700 Telegraph Road
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Barbara Harvey
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Betty Grdina
Yablonski, Both & Edelman
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Tom Leedham c/o Stefan Ostrach
110 Mayfair
Eugene, OR 97404
Tim Buban
4220 S. Katherine Dr.
New Berlin, WI 53151
Frank Busalacchi
IBT Local 200
6200 W. Bluemound Rd.
Milwaukee, WI 53213
Chris Varsos
IBT Local 200
6200 W. Bluemound Rd.
Milwaukee, WI 53213
Rick Schermerhorn
IBT Local 200
6200 W. Bluemound Rd.
Milwaukee, WI 53213
Dennis M. Sarsany
1829 Eddy St.
Chicago, IL 60657