Protest Decisions

IN RE: JOHN McPARTLIN and TOIALE JOHNSON, Protestors.
Protest Decision 2011 ESD 197
Issued: April 4, 2011
OES Case No. P-195-030411-MW

John McPartlin and Toiale Johnson, members of Local Union 299 and candidates for delegate on the New Era slate, 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 The protest alleged that the local union provided them an inaccurate and out-of-date worksite list, in violation of the Rules.

Election Supervisor representative Joe Childers investigated this protest.

Findings of Fact and Analysis

The New Era slate opposed the Moore Members slate in Local Union 299 delegates and alternate delegates election. Moore Members was headed by Kevin Moore, the local union's principal officer. Ken Kwapisz, local union secretary-treasurer and not a candidate in the election, acted as chair of the committee that administered the election. Nominations were conducted January 8, 2011. Ballots were mailed February 9 and counted March 10. Candidates on the Moore Members slate won all positions.

On January 20, McPartlin requested a list of all worksites under the local union's jurisdiction, pursuant to Article VII, Section 1(a) of the Rules. On January 24, Kwapisz produced to McPartlin the list of 71 worksites that had been filed with the local union election plan. Between February 2 and 4 and pursuant to the same provision, McPartlin reviewed the local union's collective bargaining agreements which were on file at the hall. All of those contracts contained worksite addresses for the employers they covered. McPartlin said he reviewed some but not all of those contracts and that he obtained addresses from them. He also stated he compared the worksite list with the addresses listed in the contracts.

New Era candidates campaigned at worksites between February 7 and 12, 14 and 19, and 21 and 23. Their protest alleged that the addresses for many worksites on the list the local union provided were inaccurate and that the candidates were sent on a "wild goose hunt" trying to locate employers, some of whom were no longer in business. McPartlin and Johnson maintained that inaccuracies on the list created a disadvantage to the New Era in conveying their campaign message to local union members.

In Viehland, 2006 ESD 271 (May 23, 2006), aff'd, 06 EAM 47 (June 21, 2006), we addressed the need for local unions to make accurate worksite lists available on request:

The purpose of the Rules provision granting candidates access to listings of current worksites in a delegate election is to level the playing field between incumbent local union officer candidates and candidates who are rank-and-file members. Where the former group, because of their duties as union officials, should know where members work and can use that knowledge to campaign, rank-and-file challengers, whose most effective campaign technique is face-to-face contact in employee parking lots, must rely on the worksite list the local union provides to determine where potential voters can be found. A substantially inaccurate list … is equivalent to providing no list at all. It is no defense to a protest alleging a violation of this provision that a candidate should know which employers employ members and which do not.

The alleged inaccuracies in this case fell into five categories: worksites listing inaccurate street addresses, worksites where all members were on layoff, worksites that were hard to find at the listed addresses, employers for which more than one address was listed, and worksites missing from the list altogether. We address the protest's claims in this order.

Alleged inaccurate street addresses

·        Danzas A.E.I. The protestors claimed that the address for this worksite was incorrect. Despite this claim, the protestors found the location and campaigned among the members employed there. Kwapisz told our investigator he was certain the address provided was correct because he is the business agent responsible for servicing the members working under that contract, and the address provided was the same as that listed in the contract.

·        Applied Industrial Tech. The address for this worksite is 23937 Freeway Park Drive, Farmington Hills, Michigan 48335. The worksite list provided by the local union showed the street number as "239" rather than "23937." The protestors found this address and campaigned there. Kwapisz conceded the address listed was incorrect. We find that error was an inadvertent typographical one and not intentional. We further find the error caused no prejudice to protestors, as they found the worksite with little inconvenience.

·        Jack Cooper. This worksite's address is 38000 Michigan Avenue, Wayne, Michigan 48184. The worksite list put it at "3800" rather than "38000." As with Applied Industrial Tech, we find the street address error was inadvertent and did not prejudice the protestors, as they located the site and campaigned there.

·        VSA/Vistar of Michigan. The worksite list showed an address of 8979 Samuel Barton Drive, Belleville, Michigan 48111. Upon arrival at this site, the protestors discovered that the correct address for the employer is 6703 Haggerty Road, Belleville, Michigan 48111, 1.8 miles north. Kwapisz conceded to our investigator that the address listed for this employer was incorrect, and that the employer had moved from the Samuel Barton Drive address to the Haggerty Road address. We find the protestors were not prejudiced by this error as they were able to locate the correct address and campaign there.

·        YRC. The worksite list showed the address for this employer as "22701 Van Born Road, Taylor, MI 48180 Detroit, MI 48216," i.e., two different cities for the same street address. However, 22701 Van Born Road is in Taylor, not Detroit. Kwapisz explained that when Yellow and Roadway integrated their operations last year and became YRC, they combined their respective Taylor and Detroit operations at the Taylor location. The local union inadvertently failed to delete "Detroit, MI 48216" from the worksite list. We find no prejudice to the protestors by this error.

Worksites where all members were on layoff

·        Caliber Auto Transfer and RCS Transportation. All members at these sites are on layoff; despite this fact, collective bargaining agreements remain in place with these employers and members retain recall rights there.

Article VII, Section 1(b) requires that candidates be supplied with "a current list of all sites, with corresponding addresses, where any and all Union members work." Donna Nehasil, clerical staff at Local Union 299, inquired of our office as to whether the local union, when responding to a request for the worksite list, should provide the addresses where collective bargaining agreements are in place, even if all members there are temporarily laid off. We responded that the local union should do so. After this protest was filed, Nehasil told our investigator that the local union did not know when the laid off workers at several employers would be recalled and for this reason did not exclude any employers under contract from the worksite list provided to the candidates. We find that the list the local union supplied met the requirements of the Rules even though it included sites where all members were laid off.

Worksites that allegedly were hard to find.

·        Auto Handling. The worksite list showed two addresses for this employer. The protestors alleged that the first address, 326 S. Newburgh, Westland, Michigan, 48186, was incorrect, as they had been told that the UAW now held a contract at this location. Kwapisz stated to the contrary that this address was correct and that members of Local Union 299 were employed at the location. The second address appearing on the worksite list for this employer, 36555 Michigan Avenue, Wayne, Michigan 48184, is another location where members were formerly employed but are presently laid off. According to Kwapisz, the company anticipates that it will recall the laid off members but may do so at another location to be determined.

·        Autoport and K&T Switching. Kwapisz told our investigator that both of these employers' worksites are small bargaining units physically located within large Ford Motor Company assembly plants. He stated that the addresses provided were correct, but finding members' work locations within the assembly plants might prove difficult. With respect to K&T, this employer is located within a Ford assembly plant that was shut down to changeover from assembling trucks to small cars. Only a skeletal crew remained, and the Local Union 299 members, who work from a trailer within the plant, were also reduced to a skeletal crew.

Employers for which more than one address was listed.

·        Kenosha Releasing. The worksite list provided two addresses for this employer, and the protestors did not know which address was correct. Kwapisz stated that Local Union 299 has members at both addresses.

Worksite allegedly missing from the list.

·        Cassens Transport. The protestors campaigned at this employer at the address shown on the worksite list. However, they alleged that one or two additional sites for this employer were not included on the list. Kwapisz told our investigator that the Cassens address on the worksite list is the only one for that employer under Local Union 299's jurisdiction. Cassens employs other Teamsters members in southeast Michigan, but they are members of Local Union 614.

We find that the worksite list the local union supplied to protestors was compiled with requisite care and in good faith and was substantially accurate. We further find that any errors the list contained were inadvertent and did not serve to prejudice the protestors in campaigning among local union members. Accordingly, we DENY the protest.[1]

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 197

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

John McPartlin
24200 Wilson Drive
Brownstown Twp., MI 48143
Jmcpartlin14@comcast.net

Toiale Johnson
5523 Underwood Street
Detroit, MI 48204
toiale@aol.com

Kenneth Kwapisz, Secretary-Treasurer
Teamsters Local Union 299
2741 Trumbull Avenue
Detroit, MI 48216
d.nehasil@teamsterslocal299.com

Joe F. Childers
Getty & Childers, PLLC
250 West Main Street, Suite 1900
Lexington, KY 40507
childerslaw@yahoo.com

William C. Broberg
1108 Fincastle Road
Lexington, KY 40502-1838
wcbroberg@aol.com

Maria 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