Protest Decisions

ELECTION APPEALS MASTER

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IN RE CHRISTOPHER TOOLE

AND JEFFERY SCAGLIA,

                                                                                    2015-2016 EAM 32 (KAR) (ESD 280)                                 PROTESTORS                                              

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            Protest Decision 2016 ESD 280 (ESD 280) was issued on August 12, 2016.  ESD 280 resolved seven protests filed by Jeffrey Scaglia and Christopher Camelio, members and elected delegates of Local Union 118.  The protests alleged that Local Union 118 failed to comply with the Election Supervisor’s orders that remedial notices be posted and maintained on all worksite bulletin boards under the local union’s jurisdiction.

Decision of the Election Supervisor

In Local Union 118 Delegates and Alternate Delegates, 2016 ESD 256 (June 24, 2016), appeal withdrawn, 2016 EAM 27 (June 28, 2016), the Election Supervisor held that Local Union 118 violated the Rules by failing properly to arrange travel for the elected delegates and alternate delegates to the IBT convention and by imposing restrictions on the delegation that were not permitted by the Rules or the Election Supervisor’s Advisory Regarding Payment of Expenses for Convention Delegates and Alternate Delegates.  Among other remedies, the Election Supervisor ordered that the local union post a remedial notice on all worksite bulletin boards under the local union’s jurisdiction and maintain that posting through July 31, 2016.  Christopher Toole, secretary-treasurer of Local Union 118, submitted a signed declaration, made under penalty of perjury and dated June 27, 2016, stating: “Pursuant to my direction, a copy of Posted Notice Regarding Above [2016 ESD 256 (June 24, 2016) Protest Decision] was posted on each Local Union bulletin board and posted on our website as instructed.  Attached to this declaration, and incorporated herein by this reference, is a list, by employer, site, and location, of all Local Union bulletin boards and the individuals responsible for posting at each site.”

In Toole & Scaglia, 2016 ESD 272 (July 15, 2016), aff’d as modified, 2016 EAM 28 (August 5, 2016), the Election Supervisor found that mailings not permitted by the Rules were carried out after the delegates election and that the mailing by local union principal officer Paul Markwitz was performed using union resources.  Among other remedies, the Election Supervisor ordered that the local union post a remedial notice on all worksite bulletin boards under the local union’s jurisdiction and maintain that posting through September 2, 2016.  On August 10, 2016, Mr. Toole submitted a signed declaration dated July 20, 2016, made under penalty of perjury, stating:  “Pursuant to my direction, a copy of Posted Notice Regarding Above [2016 ESD 272 (July 15, 2016) Protest Decision] was posted on each Local Union bulletin board and posted on our website as instructed.  Attached to this declaration, and incorporated herein by this reference, is a list, by employer, site, and location, of all Local Union bulletin boards and the individuals responsible for posting at each site.”

Protests P-328, P-329, and P-336 (the earliest of which was filed on July 20) alleged that the posting required by ESD 256 was either not made at all or was not maintained through the required posting period at UPS-Rochester, KB Graphics, and Genesee Brewing, respectively.    Protests P-331, P-332, P-334, and P-335 alleged that the posting required by ESD 272 was either not made at all or was not maintained through the posting period at Wegman’s Grocery, Wegman’s Produce, Greece Central School District, and Genesee Brewing, respectively.

Preliminarily, ESD 280 notes the purpose and significance of notice postings from the Office of the Election Supervisor.

Notice postings from the Office of the Election Supervisor (“OES”) are intended to inform the membership about events in the International Officer election, including results of protest rulings.  OES depends on the postings being made but does not have the resources to carry out and inspect every posting required at every union bulletin board in the United Stated, Puerto Rico, and Canada.  For that reason, OES must rely on local union officers and personnel to supervise and perform required postings, and to confirm when postings are complete.  The certifications of posting are important to the integrity of the election process. 

ESD 280 at 1.

The Election Supervisor granted three of the four protests with respect to the notice required by ESD 256 and one of the three protests with respect to the notice required by ESD 272.  With respect to the four protests that were granted, the Election Supervisor found either that the remedial notices were not posted timely at the specified locations or were not maintained as required by the remedial orders, and, further, that Mr. Toole’s declarations, made under penalty of perjury that the notices were posted, were false.  As remedy for these violations of the remedial orders, the Election Supervisor ordered the following: 1) mailing of the ESD 256 notice to all members employed by UPS Rochester and KB Graphics and mailing of the ESD 272 notice to all members employed in Wegman’s Grocery and Wegman’s Produce departments; 2) an order directing Mr. Toole to cease and desist from submitting false declarations to the Office of the Election Supervisor and payment of a fine from personal funds by Mr. Toole in the amount of $1,000, which the Election Supervisor stated “is strictly remedial in nature and is intended to stress the importance of submitting truthful declarations of posting and to deter further violations;” and 3) posting of a notice on all worksite bulletin boards advising members that Local Union 118 had failed to comply fully with remedial orders issued previously and describing the remedy imposed for this non-compliance, including the fine to Mr. Toole.  With respect to the three protests the Election Supervisor denied, no remedy was ordered because no violation was found.

UPS Rochester

Photographs of the bulletin boards at UPS Rochester that were attached to the protest showed the notice required by ESD 256 was not posted.  Mr. Toole, who previously signed the declaration under penalty of perjury stating that the notice had been posted there, stated the following during the investigation in response to the protest:

Both notices [as required by ESD 256 and ESD 272] were sent to the Steward who has been out on worker’s compensation and then vacation.  Both notices were also sent to an alternate Steward.  Both notices were taped to the outside of the board but were taken down on an almost daily basis.  This can be seen on the picture in the protest.  I re-posted the notices and asked the Company not to take them down.  The UPS collective bargaining agreement does not allow notices without Union letterhead on the bulletin boards, they were not aware the ESDs must be posted.

ESD 280 at 2.

The Election Supervisor found that Mr. Toole’s explanation contradicted his signed declaration, which stated directly that the ESD 256 notice “was posted” on the UPS-Rochester board (and all other boards under the local union’s jurisdiction) as of June 27, 2016. 

[Mr. Toole’s] revised statement given to our investigator was that the steward working in that building was responsible for the posting but was not at work for a period of time, that the notice was also sent to the alternate steward there for posting, and that the notice was not posted on the board but rather was taped to the outside of the glass cover for the board, from which it “was removed on almost a daily basis.”  Toole presented no competent evidence that an alternate steward posted the notice to the board before the date he claimed personally to have “re-posted” it, a date he did not specify.  Pointing to a steward as the responsible individual even conflicts with information previously provided to OES:  the bulletin board location lists submitted with and incorporated into Local Union 118’s local union election plan identified Toole as the agent responsible for posting on the UPS Rochester bulletin board, and that plan submission was itself certified as true and accurate by Toole.  Toole further attempted to shift blame for the lack of posting by insinuating that UPS had removed the notice because it did not appear on local union letterhead.  This explanation is dubious, however, because a credit union advertisement for loans with “Great Rates! [on] Cars & Trucks” was posted to the board even though it was not printed on local union letterhead; the credit union notice apparently had been posted for more than two years, as it indicated that the “Special ends May 31, 2014.”  Accordingly, we find that Toole’s declaration stating that the notice was posted on UPS-Rochester board on June 27, 2016 was false; we find further that the notice was not posted to that board for a significant period after June 27; we find finally that Toole himself was listed by Local Union 118 as the agent responsible for posting notices on the UPS-Rochester board, according to the local union election plan he submitted and certified as true in August 2015, and he – not anyone else – was the person who failed to make the posting timely. 

ESD 280 at 2-3.

KB Graphics

A photograph submitted with the protest showed the bulletin board at KB Graphics lacked the notice required by ESD 256.  During the investigation Toole responded to the protest as follows:

There are two employees there; neither will accept the responsibility for posting notices.  The Employer receives any communications and hands them out to their employees.  Business Agent Jeff Sargent went to the Company after receiving this protest with both ESDs.  The employer refused to post either of them stating he wasn’t going to get involved with our politics.  That is disconcerting because it raises the question of why he knew the notices were political in nature as the Agent never disclosed what they were for.  After threatening to turn them into the Office of the Election Supervisor they agreed to post them.  Agent Sargent was not allowed to take a picture.

ESD 280 at 3.

The Election Supervisor found that:

Toole’s explanation contradicts his declaration made under penalty of perjury on June 27 that the notice “was posted” on all union bulletin boards as of that date, including KB Graphics.  His submission in response to this protest indicates that the notice at that location was posted for the first time after Protest P-329 was filed on July 22.  His submission also attempts to shift blame to the employer for failure to post the notice, when the local union election plan places responsibility for posting at KB Graphics on business agent Jeff Sargent. 

ESD 280 at 3.

Wegman’s Grocery and Wegman’s Produce

Photographic evidence showed that, as of July 23, 2016, the notice required by ESD 272 was not posted on the Wegman’s Grocery or the Wegman’s Produce bulletin board.  During the investigation Toole contradicted these photos by writing the OES investigator that the notice indeed was posted at both locations.  He explained the contradiction by asserting that Christopher Camelio, one of the protestors here, and two of Camelio’s slate members, Michael Figliotti and Anthony Wells, are employed at Wegman’s, previously were stewards at that employer, and allegedly retain keys to the boards in question, insinuating that the absence of the ESD 272 notice from those boards is because one or more of them removed it.  The Election Supervisor rejected this argument as speculative and unsupported by any evidence.  The Election Supervisor pointed out that the notice criticized the local union administration and that Mr. Camelio, Mr. Figliotti and Mr. Wells would benefit by its posting--strongly suggesting that the trio would not remove the notice. Accordingly, the Election Supervisor found that Mr. Toole’s declaration that the notices were posted on Wegman’s Grocery and Wegman’s Produce bulletin boards as of July 20, 2016, was false.   

Appeal of ESD 280

On August 16, 2016, Mr. Toole appealed “each and every part of the decision ESD 280,” asserting ten separate bases for the appeal.  On August 22, the Election Appeals Master received written submissions from counsel for Mr. Toole (Toole August 22 Submission) and from the Election Supervisor (Election Supervisor August 22 Submission).  A telephonic hearing was held on August 23, which was attended by: Jeffrey J. Ellison, Esq., on behalf of the Election Supervisor; Peter Marks (OES); Christopher Toole; Jeffery Scaglia; Christopher Camelio; Michael T. Harren, Esq., attorney for Mr. Toole; and Gary Rindfleisch, a member of Local 118.

At the request of the Election Appeals Master, the Election Supervisor and Mr. Toole’s counsel submitted additional written argument regarding the Election Supervisor’s imposition of a fine on Mr. Toole, on August 29 and September 1, respectively.  At the further request of the Election Appeals Master, the Election Supervisor and Mr. Toole’s counsel submitted additional information on October 19 and 21 regarding OES directives with respect to posting, posting procedures at Local 118 and Mr. Toole’s declarations regarding posting.  An additional telephonic hearing was held on October 24, which was attended by Jeffrey J. Ellison, Esq., on behalf of the Election Supervisor; Peter Marks (OES); Christopher Toole; Jeffery Scaglia; Christopher Camelio; Michael T. Harren, Esq., attorney for Mr. Toole; and Gary Rindfleisch, a member of Local 118.

Mr. Toole’s appeal asserts the following bases:[1]

1. The protests were untimely.  They were filed outside the time allowed in the Election Rules Article XIII §3(a).
2. The imposition of a fine violates my rights under the Constitution of the International Brotherhood of Teamsters.
3. The imposition of a fine denies my rights guaranteed by LMRDA §101(a)(5) and other sections.
4. The bulletin boards in question were not under my exclusive control.
5. My certification of posting was made and was limited to the affirming that the Local’s normal procedure for posting had been implemented.
6. I did not nor could I have possibly verified that every individual responsible for posting had complied with their obligations. 
7. The findings of the Election Supervisor are not supported by evidence.
8. The remedy is not authorized by Election Rules Article XIII section 4.
9. The challenged conduct is unrelated to the conduct of an election and is outside the scope of the Election Rules and the jurisdiction of the Election Supervisor.

10.  The investigators did not conduct a complete investigation into the facts I presented in opposition to the original complaint(s). They did not contact any of the witnesses requested or provided nor did they attempt to verify any of the facts presented.

Decision of the Election Appeals Master

Jurisdiction of the Election Supervisor

I turn first to Mr. Toole’s contention that “the challenged conduct is unrelated to the conduct of an election and is outside the scope of the Election Rules and the jurisdiction of the Election Supervisor.”

The conduct that was the subject of the underlying decisions of the Election Supervisor (ESD 256 and 272) occurred prior to the Convention.  The protests regarding the failure to post notices regarding ESD 256 and 272 were filed after the Convention, but prior to the election of international officers.  The Election Supervisor therefore treated these protests as “pre-election,” pursuant to Article XIII, Section 2.

Mr. Toole contends that the protests are “post-election protests” that “shall only be considered and remedied if the alleged violation may have affected the outcome of the election

 * * *.”  Article XIII, Section 3(b).

I find that the Election Supervisor correctly considered the protests at issue as pre-election protests and accordingly deny the appeal based on lack of jurisdiction.  In any event, I find that an interpretation of Article XIII that would preclude the Election Supervisor from investigating and remedying a violation of his order would undermine enforcement of the Consent Decree and the Rules. 

Timeliness of Protests

Article XIII, Section 3(a) provides that pre-election protests must be filed within two (2) working days of the day when the protestor becomes aware or reasonably should have become aware of the action protested or such protests shall be waived.”   In this case there is no evidence of the date on which the protestors became aware of the alleged posting violations.  Mr.  Toole did not raise the defense of timeliness to any of the protests during the investigation, and the Election Supervisor considered the protests on their merits.  Further, it has repeatedly been held that timeliness is a prudential rather than jurisdictional defense under the Rules, and the Election Supervisor in his discretion may waive the time limit to remedy a Rules violation.  See, e.g., Lytle, 2011 EAM 51 (June 30, 2011); and Reyes, 2011 EAM 50 (June 24, 2011).  There is no evidence that the protestors delayed in reporting the absence of the required postings, and no evidence of any prejudice to Local 118.  The appeal is therefore denied with respect to Mr. Toole’s challenge to the timeliness of the protests.

Posting and Perjury

            Mr. Toole contends that he “truthfully certified that [he] had posted the required notices,” because “Local 118 has consistently satisfied the requirement of posting election-related notices by mailing such notices to the steward responsible for the area in which each of the 125 Local Union bulletin boards is located,” and Mr. Toole “satisfied the standard procedure.”  Mr. O’Toole asserts that there is no evidence suggesting that his certifications were untrue at the time they were executed, and that the “Election Supervisor ruled that Toole’s sworn certifications became ‘knowingly false,’ when [due to] circumstances beyond Toole’s control (and of which Toole was unaware at the time) 2 of 125 notices had either not been posted by the steward or had been posted and removed before the end of the posting period.”  Toole August 22 Letter at 1-2.  Mr. Toole further argues that if there is any ambiguity as to the meaning of the phrase “was posted” in the certification form, that ambiguity must be interpreted against the Office of the Election Supervisor, which drafted the form.        Finally, Mr. Toole asserts that the Election Supervisor failed to conduct an adequate investigation because he did not interview certain (unnamed) witnesses identified by Mr. Toole.

            The totality of the evidence presented to the Election Supervisor and on appeal establishes that with respect to the certification of posting of required notices, it is the standard and expected procedure that a local union officer, typically the secretary-treasurer, completes Form 3 (created and promulgated by the Election Supervisor).  There is no expectation or requirement that the person completing the certification is personally responsible for posting the required notice Rather, as reflected in Form 3, the person signing the certification essentially attests that s/he has directed the persons identified on an annexed document to post the required notice.  There is no provision in the Rules requiring the person signing Form 3 to verify posting of the required notice.  Moreover, the Election Supervisor has chosen not to promulgate procedures or requirements with respect to the verification of actual posting.  See Lorne Smith, 2011 ESD 163.

            In this case, it appears that Mr. Toole annexed to his certification a document identifying officers or business agents responsible for each employer location (including himself), rather than—as Mr. Toole intended--a document identifying the stewards at each employer location responsible for physically posting the required notice.  The Election Supervisor’s finding of perjury by Mr. Toole is based substantially upon his identification as the person responsible for posting the required notice at certain UPS locations on the document (mistakenly) attached to the certification.

            Based upon the evidence presented on appeal, I find that Mr. Toole failed to exercise due care in attaching to his certification a list of stewards responsible for posting the required notice.  However, in light of the acknowledged and accepted practice of delegation of actual posting, Mr. Toole’s negligence cannot justify a finding that Mr. Toole made a knowingly false or intentionally deceptive statement. The Election Supervisor’s finding of perjury by Mr. Toole is therefore hereby reversed.  At the same time, I conclude that the Election Supervisor’s finding that the required notice was not posted as required is supported by substantial evidence.   The Election Supervisor’s finding of a violation by Local 118 is therefore affirmed.

Fine

            In light of my reversal of the Election Supervisor’s finding of perjury by Mr. Toole, the Election Supervisor is directed to return the fine paid by Mr. Toole, with interest at the federal post-judgment rate.[2]

Further Remedial Relief

            Based upon the substantial evidence of failure to post the required notice, the protest is remanded to the Election Supervisor with the direction to add to the remedial injunctive relief the verification provisions ordered in Lorne Smith, 2011 ESD 163.  The Election Supervisor may also wish to consider revising Form 3 to reflect more accurately the responsibility and expectations of the person signing the certification.  

Conclusion

For the foregoing reasons, the appeal is granted in part and denied in part.  ESD 280 is affirmed with respect to the finding that Local 118 failed to post the notices required by ESD 256 and ESD 272.  The Election Supervisor is directed to add to the remedial injunctive relief the verification provisions ordered in Lorne Smith, 2011 ESD 163.  ESD 280 is reversed with respect to the finding that Mr. Toole committed perjury, and the Election Supervisor is directed to return the fine paid by Mr. Toole (with interest at the federal post-judgment rate).  A copy of this Decision and notice of further remedial injunctive relief imposed by the Election Supervisor should be posted and mailed as set forth in ESD 280.  

SO ORDERED.

/s/____________________________________

KATHLEEN A. ROBERTS

ELECTION APPEALS MASTER

DATED:  November 21, 2016