Protest Decisions

IN RE: KEVIN BARRY, Protestor.
Protest Decision 2011 ESD 217
Issued: April 17, 2011
OES Case No. P-234-032511-AT

Kevin Barry, member of Local Union 82, 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 he was denied observer rights; in addition, the protest alleged that the local union refused to produce expired project labor agreements, refused to facilitate posting of campaign material on a worksite bulletin board, and failed or refused to notify all candidates of a new project labor agreement that covered members of the local union.

Election Supervisor representative Peter M. Geraghty investigated this protest.

Findings of Fact and Analysis

Local Union 82 was placed under emergency trusteeship on September 27, 2010.   On the same date, General President Hoffa appointed Denis Taylor as Trustee.   Taylor serves as president of Local Union 355 in Baltimore, Maryland, in addition to his duties as Trustee of Local Union 82.

Local unions in trusteeship are permitted by Article III, Section 5(a)(3) of the IBT constitution to send delegates to the IBT convention provided those delegates are elected by secret ballot.   Based on its membership size, Local Union 82 is entitled to one delegate to the IBT convention.   At the nominations meeting held February 20, 2011, Leif Thornton, Kevin McNiff, and Joseph Previti were nominated for this position.  

Ballots were mailed March 23 and counted April 15.  

Alleged violation of observer and inspection rights

The protestor alleges that he visited the local union office with delegate candidate Joseph Previti on March 22 to inspect collective bargaining and project labor agreements covering members of Local Union 82.   Barry was present as Previti's observer.

Barry alleged that Trustee Taylor told him he could not accompany Previti into the local union's conference room to inspect documents but that he could observe Previti's inspection from a separate room.   Barry claimed this behavior was unprofessional and that Taylor denied him observer rights.   Barry acknowledged that after some discussion, Taylor permitted him to come into the conference room and observe Previti's inspection of a collective bargaining agreement and a project labor agreement.   Barry seeks a written apology from Taylor.

Barry also alleged that during the meeting, he and Previti requested to inspect all project labor agreements to which Local Union 82 was party.   Barry claimed Taylor refused to provide them with any additional project labor agreements, other than the one Previti had already reviewed.   Barry claimed that Taylor stated "you got what you got" when asked to provide access to all project labor agreements.  

Taylor told our investigator he initially questioned whether Barry, who is not a candidate, had the right to inspect contracts or to observe Previti's inspection of them.   Taylor stated that despite this concern, he allowed Barry into the conference room to observe Previti's inspection of the documents.   During that visit, Taylor advised Barry and Previti that they could inspect all current collective bargaining agreements and all current project labor agreements.   Taylor stated Previti asked to inspect one collective bargaining agreement for a company named Skyline.   This agreement was provided to Previti.   Previti also requested to see a project labor agreement for a recent show at a local hotel.    Taylor provided that one as well.

Taylor agreed he told Previti "you got what you got" in response to his request to inspect all project labor agreements entered into by Local Union 82.   The one he produced was the only such agreement then current; all other project labor agreements had expired by their terms.   Taylor asserted that candidates are not entitled to inspect any project labor agreements that are expired, stating that once the job is complete, the project labor agreement expires, and it no longer covered local union members.   

Taylor stated that while Previti was inspecting the documents, Barry made sarcastic comments to Previti which Taylor believes were directed at him.   Taylor stated that at one point, in reference to the contents of a document Previti was reviewing, Barry stated "someone could go to jail for that."   Taylor believed that this comment was directed at him.  

Article VII, Section 1(a) permits candidates "to inspect and make notes from all collective bargaining agreements … covering any member of the Union. … The right provided herein is independent of the right to inspect or receive a collective bargaining agreement under Section 104 of the Labor-Management Reporting & Disclosure Act of 1959, which is incorporated into these Rules by Article XII."   We find that Taylor complied with this provision by producing to Previti the collective bargaining agreement and the project labor agreement he requested.   We find that Taylor's refusal to produce expired project labor agreements did not violate this provision, as the obligation to produce such contracts extends only to those that, at the time the document is produced, cover a local union member.   Expired contracts no longer covered members of Local Union 82, and Taylor had no obligation under this provision to produce them.

Further, we find that Taylor could have excluded Barry from the inspection, as the right to inspect extends to the candidate, not to the candidate's observer.   In addition, inspection of existing collective bargaining agreements is not an observable event under Article IX of the Rules.

Accordingly, we DENY these aspects of the protest, including Barry's request that Taylor apologize to him.  

Alleged improper denial of access to employer facility to post campaign material

Barry further alleged that during the March 22 meeting, Taylor refused his request for access to employer GES's facility in Avon, Massachusetts to post campaign literature for Previti.   Barry also claimed that Taylor refused to provide him with contact information for GES's shop steward, Ed Welch.

Taylor stated that Barry said at the March 22 meeting he had visited GES's facility, that it was closed, and that he asked Taylor to get the employer to give Barry access so he could post campaign literature there.  

Taylor stated he refused Barry's request for two reasons: he did not believe it was appropriate to request the employer to open its facility for Barry, and in any event he did not believe Barry had the right to post literature there.   Taylor further noted that GES is a trade show company, and that local union members do not work at its facility in Avon, but rather report to the exposition center or hotel that is hosting the show.   Although drivers occasionally make deliveries to the Avon facility, Taylor said there is no bulletin board there[1].  

We DENY this aspect of the protest.   No provision of the Rules requires the local union to obtain access to an employer facility so that a candidate may campaign there.

Alleged failure to update worksite list

 Barry alleged that the local union recently added a new employer, T3, but did not inform him that a trade show was to occur from March 22 to 24.  

Taylor responded that Local Union 82 entered into a collective bargaining agreement with T3 in early March and that the agreement was finalized in mid-March.   Taylor disputed Barry's claim that Local Union 82 did not provide notice of the trade show.   As proof, Taylor stated that this show was identified as of November 30, 2010, on a convention center event roster listing upcoming trade shows that was available for inspection at local union's office.   Taylor stated that the event roster was updated in March 2011 to identify T3 as the trade show company that would be holding the show.  

As noted in Corbitt, 2011 ESD 215 (April 17, 2011), Taylor agreed to notify all candidates, via first class mail, when the local enters into a project labor agreement.   Such notice would permit candidates to inspect the agreement and determine when and where Local Union 82 members will report to those short-term jobs.    If a project labor agreement were to be signed shortly before the job occurred, as is frequently the case, the local union office agreed to contact candidates via telephone immediately to advise them of the location and date of such jobs.

We DENY this protest.   The local provided notice of the trade show to members through the event rosters that were available at the local union office.    The evidence showed that this show was identified on a November 30, 2010 roster and that the event roster was updated in March 2011 to reflect the name of the employer that was hosting the event.  

Alleged disparaging comment

Finally, Barry alleged that Taylor made a disparaging comment about him.   Barry claimed Taylor was in a meeting with delegate candidate Kevin McNiff and Local Union 82 member Ed Welch on March 22.   Barry asserted that when Taylor was notified that he and Previti were coming to the local union office to review documents that day, he said "wish me luck" to McNiff and     Welch.   

Barry did not witness the statement but said he learned of it from McNiff.   He claimed that the comment is criticism of him and, by extension, of Previti and, as such, was an implied endorsement of Leif Thornton and Kevin McNiff, Previti's opponents in the delegate election.

Taylor admitted making the statement to McNiff and Welch during the March 22 meeting.       Taylor stated it was an off-the-cuff statement and not intended to criticize Previti's campaign or to endorse any candidate at Previti's expense.   Taylor stated that Barry has made voluminous requests of Taylor since he was appointed trustee in September 2010, most of them relating to union business not concerning the election and that the comment was a reflection of the volume of paperwork that Barry has required of Taylor over the previous six months.   Taylor stated he does not support any candidate in the delegate election.

McNiff confirmed Taylor stated "wish me luck."   McNiff stated he did not interpret   Taylor's comment as an endorsement of a particular candidate or a criticism of Previti's campaign.   McNiff stated that, in his view, the comment reflected Taylor's apprehension that the upcoming meeting with Barry and Previti was not going to be a pleasant experience for Taylor.  

Welch, the other alleged witness to Taylor's statement, did not recall Taylor saying anything about Barry, Previti, or Previti's campaign.   He also stated that he did not get the impression that Taylor favored Thornton and McNiff's campaigns over Previti's.

We DENY this aspect of Barry's protest.   Barry presented no evidence that Taylor made the comment to influence the delegate election or to endorse the other candidates at Previti's expense, or that Taylor demonstrated any bias against Previti or in favor of his opponents in 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, NY 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 217