IN RE: GINO NUZZOLILO, Protestor.
Protest Decision 2011 ESD 195
Issued: March 30, 2011
OES Case Nos. P-159-022211-NE
Gino Nuzzolilo, member of Local Union 170 and independent candidate for delegate, filed a pre-election protest pursuant to Article XIII, Section 2(b) of the Rules for the 2010-2011 IBT International Union Delegate and Officer Election ("Rules"). The protest alleged that Patricia Leblanc created a hostile environment for Nuzzolilo's campaign activity and interfered with a member's right to cast a secret ballot, in violation of the Rules.
Election Supervisor representative Deborah Schaaf investigated this protest.
Findings of Fact
Gino Nuzzolilo ran as an independent candidate for delegate in Local Union 170. His opposition was the Members First Slate, a full slate of five delegate candidates comprised of incumbent local union officials. Nuzzolilo lost the election. We decided two protests concerning ballot instructions and design in Nuzzolilo, 2011 ESD 184 (March 25, 2011). We now turn to the present protest.
Nuzzolilo campaigned the shift change at First Student in Fitchburg, Massachusetts on February 17, 2011 from 8 to 10:30 a.m. First Student employs about 140 local union members, mostly bus drivers.
While Nuzzolilo was there, he said Patricia Leblanc came into the yard and began talking to the drivers, about 25 yards away from Nuzzolilo. He said she had a ballot in her hand and was "telling people to vote for the Members First Slate" while she pointed to the ballot. Nuzzolilo said he then observed Leblanc speak with a woman who took out her ballot and showed it to Leblanc. According to Nuzzolilo, Leblanc then "handed her a pen to fill out the ballot," which the woman did in Leblanc's presence. Nuzzolilo said he was unable to hear the conversation between Leblanc and the woman, but he stated he could hear well enough to discern that the woman had a heavy accent. According to Nuzzolilo, when the woman walked by him on her way out of the yard, he asked her if she was "Italiano." The woman smiled and replied, "No, I am Puerto Rican," to which Nuzzolilo responded, "Just as good," smiling. At this, Nuzzolilo said Leblanc shouted, "No it isn't."
Nuzzolilo told our investigator he visited First Student earlier in the campaign cycle to collect petition signatures for Sandy Pope's accreditation campaign. On that occasion, he said he "got a real nice audience" with the members there, who were friendly, hospitable and interested in what he had to say. He said his reception with members on February 17 was markedly different. He blamed their changed attitudes on Leblanc's presence in the yard. Nuzzolilo conceded he did not have direct interaction with Leblanc, but he maintained that Leblanc must have said negative things about him because the members walking by him on February 17 were unfriendly and hostile, in contrast to their friendly demeanor on his previous visit. This changed attitude and Leblanc's alleged angry remark prompted Nuzzolilo's allegation that Leblanc created a hostile environment, which he claimed violated the Rules.
Leblanc is a bus driver at First Student, where she has been employed for 12 years. Leblanc was elected steward in November 2010. She was involved in union activities when a member of a different union during employment with a previous employer, but her election as steward in November was her first position representing Teamsters.
Leblanc confirmed to our investigator that she was in the First Student yard on February 17, arriving there when shift ended around 9:00 a.m. She said she was not there to campaign and did not have any campaign literature or a ballot in her possession. Leblanc said that she makes an effort to remain after work on Friday mornings to see members because, as she and they are drivers, she does not have much opportunity to see them otherwise.
Leblanc admitted that she spoke to members about the delegates election and about the ballot they had received or would soon receive. Leblanc said she encouraged people to vote and to send in their ballot by the deadline, but she denied telling any members whom they should vote for.
Leblanc told our investigator that "a Spanish lady"[1] approached her in the yard to talk to her about a work-related problem. Because the woman is a monitor and not a driver, Leblanc told her she would have to speak with her own steward or the business agent. Leblanc gave the woman a pen so she could write down the business agent's phone number. According to Leblanc, the woman had a lot of papers with her and, as she was fumbling through them to find something to write on, she pulled out her ballot. Leblanc said the woman asked her to help make sure she had everything in the right envelope and properly put together.[2] Leblanc admitted that the woman filled out the ballot right there in the yard, then folded it and followed Leblanc's instructions about getting it ready to mail. Leblanc said she did not tell the woman whom to vote for, did not see whom she voted for, did not touch the secret ballot or ballot return envelopes, and did not ask for or accept the BRE for mailing to the Post Office Box.
Leblanc said she did not observe any interaction or overhear any conversation between the woman and Nuzzolilo. Leblanc emphatically denied saying "No it isn't" or anything at all in response to conversation between Nuzzolilo and the woman.
Analysis
This protest raised two allegations. Nuzzolilo first asserted that Leblanc created a hostile environment at First Student such that members there were not receptive to his message. As we said in Janicke & Dye, 2011 ESD 193 (March 30, 2011), members have the right under Article VII, Section 12(a) "to participate in campaign activities." Both Nuzzolilo and Leblanc exercised that right at First Student on February 17. Members who used the parking lot there had the right under the same Rules provision "to hear or otherwise receive such campaign advocacy." The Rules do not and cannot guarantee that members will be receptive to a particular campaign message. So long as advocacy or counter-advocacy does not cross the line into improper threats or coercion[3] - an allegation not made here - campaign activity that persuades members not to be receptive to the campaign message of a particular candidate does not violate the Rules. Accordingly, we DENY Nuzzolilo's first allegation.
We also DENY his second claim, that Leblanc interfered with a member's right to mark her ballot in secret. We take allegations of violations of ballot secrecy seriously. Berg, 2006 ESD 278 (May 30, 2006), aff'd, 06 EAM 46 (June 20, 2006); Pope, 2006 ESD 316 (June 30, 2006). The evidence here is that the member pulled out her ballot and asked for Leblanc's assistance to insure that the ballot return package was properly assembled. We find no evidence that Leblanc asked to see the ballot being marked, asked to see how the ballot was marked, or asked for the ballot itself. Nor do we find any impermissible collection of the ballot. Accordingly, we find no evidence that Leblanc limited or interfered with the member's right to independently determine how to cast her vote, to mark her ballot in secret, or to mail the ballot herself. We likewise find no evidence that Leblanc encouraged or required the member to mark her ballot in Leblanc's presence. Article II, Section 15.
Although this protest was filed pre-election, we consider it in a post-election context pursuant to Article XIII, Section 2(f)(2). As we find no Rules violation, we need not determine whether the conduct complained of may have affected the outcome of the election.
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 195
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
Gino Nuzzolilo
7 Indian Lane
Webster, MA 01570
nuzzy170@yahoo.com
Michael Hogan, Secretary-Treasurer
Teamsters Local Union 170
P.O. Box 70634
Worcester, MA 01607-0634
mhogan@teamsters170.com
David Reilly
22 West Main Street
Wickford, RI 02852
dreilly@dfresq.com
Deborah Schaaf
1118 Coddington Road
Ithaca, NY 14850
debschaaf33@gmail.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.
Washington, D.C. 20006
knaylor@ibtvote.org
Jeffrey Ellison
214 S. Main Street, Ste. 210
Ann Arbor, MI 48104
EllisonEsq@aol.com
[1] Leblanc told our investigator she does not know the woman's name. She said the woman "had trouble speaking English," but they could understand each other.
[2] The ballot is to be folded and sealed in an envelope labeled "Secret Ballot Envelope," which then is to be inserted in the ballot return envelope (BRE) to be mailed. One side of the BRE is addressed to a post office box to which voted ballots are sent. The other side of the BRE contains identifying information for the member which is used to verify the member's eligibility to vote. At the tallying of ballots, if the BRE passes the eligibility check, it is opened and the sealed secret ballot envelope containing the ballot is removed and placed with other sealed secret ballot envelopes. If the member's eligibility to vote is challenged, the BRE remains sealed and is placed with challenged ballots. Only after eligibility check of all ballots has been performed are the collected secret ballot envelopes from are opened. In this manner, the secrecy of each member's vote is maintained. Proper assembly of the ballot return package insures smooth processing at the tally.
[3] See, e.g., Echeveria, 2006 ESD 66 (February 3, 2006) (union steward violated Rules by threatening retaliation against members who signed an accreditation petition for a candidate he opposed).
