Protest Decisions

IN RE: JAKWAN RIVERS, Protestor.
Protest Decision 2011 ESD 152
Issued: March 7, 2011
OES Case Nos. P-143-021611-NE, P-148-021711-NE, P-190-030311-NE & P-194-030411-NE

Jakwan Rivers, member of Local Union 237 and candidate for delegate on the We Deserve Better slate, filed four pre-election protests pursuant to Article XIII, Section 2(b) of the Rules for the 2010-2011 IBT International Union Delegate and Officer Election ("Rules"). In Case No. P-143-021611-NE, he alleged that Curtis Scott, Local Union 237 business agent and candidate for delegate on the Greg Floyd slate, improperly used his status as a business agent to gain access to a locked worksite to campaign and there affixed Floyd slate campaign flyers to employees' lockers. In Case No. P-148-021711-NE, Rivers alleged that Scott tore off and discarded the portion of the official notice of nominations meeting results posted at Reid House that listed the candidates on Rivers' slate.

The remaining protests dealt with the remedy we ordered in Rivers, 2011 ESD 137 (February 24, 2011) and Rivers, 2011 ESD 142 (February 25, 2011). Thus, in Case No. P-190-030311-NE, Rivers alleged that the notice we ordered posted was not posted effectively. In Case No. P-194-030411-NE, Rivers alleged that the notice was not posted in some locations, the notice we ordered mailed was sent in an envelope that did not identify the Greg Floyd slate as the sender, and business agent Curtis Scott campaigned while posting the notice.

These protests were consolidated for investigation and decision. Election Supervisor representative Deborah Schaaf investigated them.

Findings of Fact and Analysis

Local Union 237, the IBT's largest local union, is comprised of employees of New York City. At the local union's nominations meeting held January 6, 2011, two full slates of candidates for delegate and alternate delegate were nominated. Protestor Rivers is a candidate on the We Deserve Better slate. That slate is competing against the Greg Floyd slate, comprised in part of incumbent local union officers; several independent candidates also appear on the ballot. Ballots were mailed February 9 and are scheduled to be counted March 15.

Case No. P-143-021611-NE

This protest alleged that "when Teamster maintenance workers reported to work at the South Jamaica Housing Project on Monday, February 14, they found that all the lockers, inside the maintenance shop (a locked and secured area with no public access) were plastered with multiple Greg Floyd Slate flyers. The Local 237 business card of Trustee Curtis Scott was affixed to members' lockers along with the campaign material." Rivers supported the protest allegation with photos showing lcampaign literature and business cards affixed to the lockers, and an additional photo showing a close-up of Curtis Scott's business card. Investigation showed there were twelve lockers in the room.

Scott admitted being at the development on the weekend that preceded February 14. He said he was there to hand out Floyd slate literature and his own business cards. Scott told our investigator he gave out "around 8 to 10" business cards. Scott denied entering the maintenance shop, said he is "not too aware" of that housing development and did not know how to gain access to the room. Scott speculated that the Floyd slate literature and his business cards were placed in the maintenance room by someone else, perhaps an opposition slate supporter or candidate.

Rivers is employed at the development and was present that weekend as well. He denied seeing Scott and denied entering the maintenance room, which he said was locked on weekends.

Percival Saunders, a maintenance worker who works at the South Jamaica development, told our investigator that the lockers were covered with literature and Scott's business cards when he arrived on Monday, February 14.  Saunders said, "It was like kids playing a joke or something, stuff was everywhere." Saunders said "something like that" had never happened before.  Saunders said, "We pulled it down and put it on the table so we could get in to our lockers." 

David Marcinek, labor relations manager in the NYCHA HR department, told our investigator that NYCHA policy requires that campaign activities on authority property be limited to non-working hours and non-working areas, prohibits posting campaign material on any NYCHA owned or operated surface, and declares that campaign flyers posted in violation of policy will be removed promptly.

On these facts, we find that Scott gained access to the maintenance room at the South Jamaica development and affixed his campaign literature and union-issued business cards on employee lockers. We find that Scott violated the Article XI, Section 1(b)(2) of the Rules, which prohibits use of employer resources to campaign, by affixing campaign literature to employer facilities. We also find that Scott violated Article VII, Section 12 (b) and (c) and Article XI, Section 1(b)(3) and (6), by using his union-issued business cards in the campaign effort. Those provisions prohibit use of union resources to campaign. Further, Article VII, Section 12(b) prohibits a union official from endorsing a candidate or slate in his official capacity. By using his business card in conjunction with the leafleting, Scott indicated official union rather than personal support for the Floyd slate. Accordingly, we GRANT this protest.

Case No. P-148-021711-NE

This protest alleged that on the same weekend that Scott campaigned at South Jamaica, he appeared at Reid Houses and defaced the official Notice of Results of Nominations Meeting notice posted there by tearing off the part of the notice that listed the candidates on the We Deserve Better Slate but leaving intact the list of candidates on the Greg Floyd slate.

Scott denied that he was present at Reid Houses then and that he defaced the notice as alleged.

Tanya Orr is employed by the NYCHA as a caretaker at Reid House, among other developments. She told our investigator that that Scott visits Reid House about every two weeks.  She recalled him being there in mid-February.  On the day she saw Scott, Orr noticed the Nominations Meeting Results notice when she arrived at work and it was intact. Later the same day, she saw Scott at Reid House. A short time after she saw Scott, she saw the notice with one of the slate delegations torn off.  She did not see Scott deface the notice, but she told our investigator she is certain saw Scott at Reid House the day the ballot was defaced. 

We credit Orr and find that Scott defaced an official notice required by the Rules and did so to promote the Floyd slate and discriminate against protestor's slate. Accordingly, we GRANT this protest.

Case Nos. P-190-030311-NE & P-194-030411-NE

In Rivers, 2011 ESD 137 (February 24, 2011), modified, 2011 ESD 142 (February 25, 2011), we ordered the Floyd slate to mail an official notice of the Election Supervisor to the same mailing list to which it had sent a campaign mailing. The mailing improperly indicated that the Civil Service Bar Association endorsed the Floyd slate; the official notice sought to inform CSBA members that the CSBA did not and could not permissibly endorse any candidate.

The Floyd slate mailed the required notice in envelopes that bore the Floyd slate campaign's street address but did not list the Floyd slate by name as the sender. The protest in Case No. P-190-030311-NE alleged that the failure to include the Floyd slate name in the return address violated the remedial order and made it more likely that recipients would discard the mailing as "junk mail."

We find that the decision not to include the Floyd slate name in the return address did not violate our order in Rivers.

The Rivers decision also required Local Union 237 to post a notice on all worksite bulletin boards advising that the date for counting of ballots had been extended from March 2 to March 15 because the Floyd slate had violated the Rules by indicating to CSBA members that the CSBA endorsed the slate. The protest in Case No. P-190-030311-NE also alleged that the remedial notice was not posted on all worksite bulletin boards as required by our decision or the postings were obscured by the posting of other materials at various locations, including at St. Mary's Houses (Bronx), Adams House (Bronx), and Reid Houses (Brooklyn).

Investigation showed Remilda Ferguson, Local Union 237 Housing Authority director, called a meeting of all Housing Authority business agents on Friday, February 25, shortly after the Rivers decision issued. She informed the business agents of the terms of the order, and she and the agents spent the weekend posting notices. Ferguson told our investigator she personally checked many bulletin boards. She stated she took extraordinary measures to insure the assignment was completed and the notices were clearly posted on the bulletin boards. Despite these efforts, Ferguson could not guarantee the integrity of the postings because Local Union 237 does not have exclusive use of the bulletin boards in the NYCHA developments. The Housing Authority provides the bulletin boards for the general use of residents, local unions, agency personnel, and other appropriate parties. The bulletin boards are not locked, and therefore Local Union 237 cannot protect the notice from being removed or covered up by another posting.

The protest in Case No. P-194-030411-NE alleged that the required postings were not made at Brooklyn South Command, Brooklyn public school locations, Taxi Limousine Commission, Administration for Children Services, DEP, "and other locations." These locations are part of Local Union 237's Citywide division, which is directed by Donald Arnold. Like Ferguson, Arnold emphasized to our investigator the local union's commitment to carry out the remedial posting. He said he called a meeting of all business agents in the Citywide Division, where he read and explained the decision of the Election Supervisor. They cancelled all grievance hearings and other tasks, and Arnold and all business agents went out over the weekend to post the notices. Arnold stated that the business agents continue to monitor the boards and, when they find the notices have disappeared or been obscured, they re-post.

Arnold explained that the Citywide division faced special difficulties posting and maintaining notices. There are 168 agencies and more than 1,000 buildings in the division. Most of the bulletin boards are not under the control of the local union. According to Arnold, many buildings have initiated security measures that require business agents to get verification from HR before posting notices on bulletin boards. Arnold noted that Local Union 237 could not guarantee that the notices will not be removed or obscured, as other agencies and as many as ten different local unions use the same bulletin boards.

The protests also alleged that business agents campaigned while posting the required notices. No proof was presented to support this allegation. Further, we note that campaigning incidental to union business is permitted by Article VII, Section 12(b) of the Rules.

On these facts, we DENY these protests for lack of proof that a violation of our remedial order in Rivers occurred.

Remedy

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

We order business agent Curtis Scott to cease and desist from posting campaign material on employer equipment, to cease and desist from using his business card to campaign, to cease and desist from defacing official notices related to the delegates and alternate delegates election. We further order him to sign the notice attached to this decision and deliver 50 copies of it to protestor Rivers no later than 5 p.m. on Wednesday, March 9, 2011, for distribution by Rivers to members employed at South Jamaica and Reid Houses.

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 Supervisor 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
885 Third Avenue, Suite 1000
New York, New York 10022
Fax: (212) 751-4864

Copies of the request for hearing must be served upon the parties, as well as upon the Election Supervisor for the International Brotherhood of Teamsters, 1801 K Street, N.W., Suite 421 L, Washington, D.C. 20006, all within the time prescribed above. A copy of the protest must accompany the request for hearing.

Richard W. Mark
Election Supervisor

cc:    Kenneth Conboy
        2011 ESD 152

DISTRIBUTION LIST (BY EMAIL UNLESS OTHERWISE SPECIFIED):

Bradley T. Raymond, General Counsel
International Brotherhood of Teamsters
25 Louisiana Avenue, N.W.
Washington, D.C. 20001
braymond@teamster.org

David J. Hoffa
Hoffa Hall 2011
1100 Connecticut Avenue, N.W., Ste. 730
Washington, D.C. 20036
hoffadav@hotmail.com

Ken Paff
Teamsters for a Democratic Union
P.O. Box 10128
Detroit, MI 48210-0128
ken@tdu.org

Barbara Harvey
1394 E. Jefferson Avenue
Detroit, MI 48207
blmharvey@sbcglobal.net

Fred Gegare
P.O. Box 9663
Green Bay, WI 54308-9663
kirchmanb@yahoo.com

Scott D. Soldon
3541 N. Summit Avenue
Shorewood, WI 53211
scottsoldon@gmail.com

Fred Zuckerman, President
Teamsters Local Union 89
3813 Taylor Blvd.
Louisville, KY 40215
fredzuckerman@aol.com

Robert M. Colone, Esq.
P.O. Box 272
Sellersburg, IN 47172-0272
rmcolone@hotmail.com

Carl Biers
Box 424, 315 Flatbush Avenue
Brooklyn, NY 11217
info@SandyPope2011.org

Julian Gonzalez
Lewis, Clifton & Nikolaidis, P.C.
350 Seventh Avenue, Suite 1800
New York, NY 10001-5013
jgonzalez@lcnlaw.com

Jakwan Rivers
9810 Avenue K, Apt. 2
Brooklyn, NY 11236
jakwanr@optonline.net

Gregory Floyd, President
Teamsters Local Union 237
216 W. 14^th Street
New York, NY 10011
greyes@local237.org

Curtis Scott, Business Agent
Teamsters Local Union 237
216 W. 14^th Street
New York, NY 10011
cscott@local237.org

Deborah Schaaf
1118 Coddington Road
Ithaca, NY 14850
debschaaf33@gmail.com

David F. Reilly
22 West Main Street
Wickford, RI 02852
dreilly@dfresq.com

Maria S. Ho
Office of the Election Supervisor
1801 K Street, N.W., Suite 421 L
Washington, D.C. 20006
mho@ibtvote.org

Kathryn Naylor
Office of the Election Supervisor
1801 K Street, N.W., Suite 421 L
Washington, D.C. 20006
knaylor@ibtvote.org

Jeffrey Ellison
214 S. Main Street, Ste. 210
Ann Arbor, MI 48104
EllisonEsq@aol.com

Richard W. Mark
Election Supervisor

The Election Supervisor has found that I violated the Election Rules by posting Greg Floyd slate campaign flyers and my union-issued business card on employee lockers in a maintenance room at South Jamaica Housing Project. The Election Supervisor has also found that I violated the Election Rules by tearing off part of an official, posted election notice to remove the listing of members nominated for convention delegate on the We Deserve Better slate, and that I did that to keep members from seeing that the We Deserve Better slate is competing in Local Union 237's delegates and alternate delegates election.

The Election Rules prohibit campaigning using employer facilities. They also prohibit using union-issued business cards to campaign. They also prohibit defacing official election notices.

The Election Supervisor has ordered me to sign this notice and deliver 50 copies of it to Jakwan Rivers by 5 p.m. on Wednesday, March 9, 2011.

The Election Supervisor has issued this decision in Rivers, 2011 ESD 152 (March 7, 2011). You may read this decision at http://www.ibtvote.org/protests/2010/2011esd152.htm.

Any protest you have regarding your rights under the Rules or any conduct by any person or entity that violates the Rules should be filed with Richard W. Mark, 1801 K Street, N.W., Suite 421L, Washington, D.C. 20006, telephone: 877-317-2011, fax: 202-429-6809, email: electionsupervisor@ibtvote.org.