IN RE: LARRY HART,
Protest Decision 2001 EAD 374
Issued: May 21, 2001
OEA Case No. PR012911MW
Larry Hart, a member of Local 705 and a candidate for delegate, 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 alleged we conducted biased investigations of protests he and Rene Vasquez previously filed.
In Vasquez, 2001 EAD 181 (February 21, 2001), aff'd, 01 EAM 41 (March 9, 2001), we denied a protest alleging Local 705's principal officer had violated the Rules by distributing a letter to the membership at union expense recommending a particular law firm for workers' compensation and personal injury claims.
In Hart, 2001 EAD 189 (February 23, 2001) ("Hart I"), we denied a protest alleging some 35 stewards were terminated in retaliation for Rules-protected activity. The Election Appeals Master affirmed our decision with respect to all steward terminations except that of Joe Bakes. 01 EAM 45 (March 16, 2001). The Bakes termination was remanded for further investigation. We issued our decision on remand today, granting the protest with respect to Bakes and ordering him reinstated and made whole. 2001 EAD 373 (May 21, 2001).
In Hart, 2001 EAD 242 (March 20, 2001), aff'd, 01 EAM 57 (April 10, 2001) ("Hart II"), we denied a protest alleging a computer error that combined middle initials with last names on address labels used on some ballot packages had the purpose or effect of disenfranchising voters.
Election Administrator representative Dennis Sarsany investigated each of these protests. Nearly five weeks after our decisions in the first two cases and more than a week after our decision in the third, Hart filed a protest alleging Sarsany's investigation of these cases was biased.
Election Administrator representative Jeffrey Ellison investigated the bias allegation.
Findings of Fact and Analysis
Hart alleges that Sarsany is biased because he is a current friend and former law partner of Michael Holland. Holland served as IBT Election Officer from 1989 to 1992 and is currently a partner at Cornfield and Feldman, a firm that performs legal services for Local 705. Sarsany was a law partner of Holland in the 1970's and served on the staff of Election Officer Holland from 1989 to 1991. In the past 10 years, Sarsany has had no professional relationship with Holland.
Hart also alleges Sarsany bias because two other lawyers who worked for Holland during the 1989-1992 IBT election, Peggy Hillman and Barbara Hillman, now work for the local. Peggy Hillman has done legal work for Local 705 since 1995; Barbara Hillman does not represent the local but has represented its pension and health and welfare funds. Sarsany has had no professional association with either Hillman since the 1989-1991 IBT election.
Hart claims Sarsany's past associations with lawyers who presently represent the local or its funds materially affected the manner in which he investigated the three protests at issue here, as more fully described below.
1. Vasquez. The protest claimed the local violated the Rules by sending the membership a workers' compensation guide and recommending a particular law firm for workers' compensation and personal injury cases. Although it was sent within two weeks of the date ballots were mailed, the letter did not refer to the delegate election or speak favorably of the local's leadership.
Sarsany investigated the protest. Nancy Golen assisted him. During the investigation, the protestor failed to provide any additional information to establish that the letter, in context, violated the Rules. Accordingly, we dismissed the protest. The Election Appeals Master affirmed:
As noted, Mr. Vasquez provided no evidence to establish that the letter was campaign material or misused union funds or contained any specific election related element. Mr. Vasquez argued that since the letter was sent out ten days before the ballots for delegates were mailed, it was ipso facto campaign related. Upon examination of the letter in question, and applying the criteria as outlined in In Re: John Hull, 01 Elec. App. 37 (February 21, 2001), I find no reference to or praise of Mr. Zero or the Local Union leadership in the body of the letter, nor any mention of the Local Union 705 delegate campaign. Accordingly, I concur with the EA's assessment of the letter and affirm the EA's decision to deny the protest.
01 EAM 41 (March 9, 2001).
In his current protest, Hart alleges Sarsany demonstrated bias by failing to contact witnesses Vasquez identified. However, Vasquez indicated those witnesses would state merely they had received the letter in question, a fact admitted by the local union. It was not necessary to expend investigative resources to confirm a fact the charged party had admitted, and Sarsany demonstrated no bias by conserving those resources. Accordingly, while this aspect of the protest was untimely filed, we DENY it on its merits.
2. Hart I. The protest claimed the local discharged 35 stewards in retaliation for their Rules-protected activity. Sarsany investigated the protest. Hart complains that Sarsany's investigation was imperfect; in particular, Hart contends that Sarsany's failure to contact all of the witnesses Hart identified constitutes bias.
Shop stewards are appointed by Gerald Zero, the local's principal officer. Hart's original protest complained that Zero terminated stewards "for their political views." He alleged that "stewards were called and asked who they were supporting as delegates;" if they replied "they were not sure [they] were terminated." Nearly a week after he filed the protest, Hart supplied a list of 35 individuals he claimed were terminated "for political reasons." He said, "These stewards either ran in the officers election or supported different groups during the election. Several … are candidates in the delegates election." One of those Hart listed (Bakes) was terminated January 16, 2001; of the remaining, 25 were terminated January 4, 2 in September 2000, 6 in the period March through May 2000, and the final individual was never a steward, according to the local's records.
The local conducted its nomination meeting for the delegate election on January 21. Hart's slate filed its slate declaration form January 18. Would-be members of the slate met on January 7 or 14, after the January 4 terminations, to discuss running together for delegate.
The only steward who claimed he had been terminated after saying he would not support the incumbents' slate in the delegate election was Bakes. Sarsany attempted to investigate by telephoning Bakes several times. He never reached Bakes, however. We denied the allegation of retaliation with respect to Bakes for lack of evidence. The Election Appeals Master remanded the Bakes case for further investigation. 01 EAM 45 (March 16, 2001). We issued our decision on remand today. 2001 EAD 373 (May 21, 2001).
All the remaining terminations occurred before any Rules-protected activity took place in the delegate election. Specifically, these terminations were imposed before any such steward had declared his/her candidacy for delegate and before he/she declined to pledge support to the incumbents' slate of delegate candidates.
Sarsany's investigation confirmed the terminations occurred before the electoral activity of the delegate election commenced. The "affidavits" Hart supplied with his current protest verify that, except for Bakes, all terminations occurred January 4 or earlier and bore no connection to the delegate election.
Moreover, virtually every affidavit includes the following conclusion: "I was politically removed because I never campaigned for Gerald Zero. Every steward who was removed either ran against or campaigned against Gerald Zero." The campaigning to which these statements refer occurred in the local officer election, which was held in November 2000 and is beyond our jurisdiction.
While Hart urges that Sarsany's failure to investigate each of the terminations thoroughly demonstrates bias on his part, we find to the contrary that where the protestor in a retaliation case fails to establish that the alleged victim engaged in Rules-protected activity, no further investigation is warranted to determine whether the asserted reason for the adverse employment action is the true one. Once Hart failed to establish this critical element of retaliation, Sarsany correctly ceased the investigation.
Accordingly, while we note the untimeliness of Hart's protest, we DENY this aspect of Hart's bias allegation on its merits.
3. Hart II. The protest claimed the local intentionally manipulated computerized membership data so as to merge middle initials and last names on some ballot package address labels. The effect of this manipulation, the protest alleged, was that members did not timely receive their ballots or were ruled ineligible because the names on the labels did not appear in the election control roster.
Sarsany and Golen investigated the protest. They found the corruption of data most likely occurred when the membership list was transmitted electronically to Murray Mizock, the proprietor of Signed Sealed and Delivered, which produced the labels and mailed the ballot packages. Sarsany and Golen assisted the local's independent election officer with remedial steps intended to eliminate any effect caused by the corrupted data. These remedies included remailing each ballot package returned as undeliverable after correcting the name. In fact, no voted ballot timely returned was invalidated because of incorrect last name.
In his current protest, Hart claims the decision "leads people to believe Mr. Sarsany contacted Mr. Murray Mizock (owner of SSD) and tries to blame the printing company for the error." The impression the decision leaves, according to Hart, is evidence of Sarsany's bias. Sarsany interviewed Joan Somers, the local's membership department manager; Golen spoke with Mizock. The decision reports Somers' theory for the corrupted data; it also reports that Mizock could not explain the corruption. We can discern no evidence of bias in this reporting of investigative findings. Moreover, the gravamen of the protest was that the corrupted data was both intentionally caused and disenfranchising. Neither proved true.
Accordingly, although Hart's bias allegations are untimely, we DENY this final aspect of the protest on its merits as well.
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 374
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Patrick Szymanski
IBT General Counsel
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Bradley T. Raymond
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Yablonski, Both & Edelman
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Tom Leedham c/o Stefan Ostrach
110 Mayfair
Eugene, OR 97404
Larry Hart
2751 North Oxford Drive
Markham, IL 60426
IBT Local 705
1645 West Jackson Blvd.
Chicago, IL 60607
Dennis Sarsany
1829 Eddy Street
Chicago, IL 60657
Jeffrey Ellison
65 Cadillac Square, Suite 3727
Detroit, MI 48226