Protest Decisions

OFFICE OF THE ELECTION SUPERVISOR

for the

INTERNATIONAL BROTHERHOOD OF TEAMSTERS

IN RE: JOHN LESICKO, FRED                )           Protest Decision 2011 ESD 226

            REALI, WADE JONES, and            )           Issued: April 21, 2011

            SCOTT FROMMELT,                      )           OES Case Nos. P-254-041211-ME&

                                                                        )                       P-257-041311-ME

            Protestors.                                          )                      

____________________________________)

John Lesicko, Fred Reali, Wade Jones and Scott Frommelt, members of Local Union 377, filed two 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").  The protests alleged that the Right slate violated the Rules by listing the home address of a slate member on a campaign mailing.

These protests were consolidated for investigation and decision.  Election Supervisor representative Denise Ventura investigated them.

Findings of Fact and Analysis

Local Union 377 will elect four delegates and one alternate delegate to the IBT convention.  At the nominations meeting held January 11, 2011, candidates comprising two full slates and a partial one were nominated.  The original ballot mailing date of February 10 was postponed indefinitely because of pending protests that were resolved in Sandberg et al, 2011 ESD 192 (March 28, 2011), aff'd, 11 EAM 33 (April 11, 2011).  Ballots were mailed April 8, 2011.

In anticipation of the original ballot mailing date of February 10, delegate candidate Ralph Cook, a member of the Right slate, made written request of Local Union 377 to conduct a campaign mailing to the local union membership.  He submitted his request on February 2 on a form provided by the local union.  The local union's TITAN operator contacted OES representative Ventura to ask how to respond to the request.  Ventura instructed the TITAN operator to request that the IBT forward the local union's current address list to the mail house the local union had designated for candidate mailings.  This was done.

When the ballot mailing date was postponed, Cook likewise postponed the Right slate campaign mailing.  After ballot mailing was rescheduled for April 8, Cook went to the mail house, Postal Mail Sort, on April 5 to complete arrangements for his slate's order, which included mailing on April 7 at the "pre-sort standard" rate using the mail house's bulk permit.  When the clerk asked Cook what return address he would use on the mailing, he initially told her to use the local union's address.  She questioned this, telling him, "You're paying for the mailing; why not put your address on it?"  He agreed with her suggestion, and the mailing listed his home address on Presidential Drive in Youngstown, Ohio as the return address.  The mailing also carried the designation "Return Service Requested," which directs the postal service to return to the return address listed all mail that is incorrectly addressed.  A charge of 44¢ per piece is assessed for this service.

Protestor Lesicko alleged that the mailing violated the Rules in two respects.  First, he claimed that Cook did not obtain the mailing list through the local union.  Investigation showed this allegation was not true, as Cook submitted a written request to conduct the mailing to the TITAN operator, who arranged to transmit the mailing list to the mail house.

Lesicko's second allegation was joined by protestors Reali, Jones and Frommelt.  They alleged that the use by Cook of his home address as the return address violated the Rules.  Campaign mailings facilitated by the local union are governed by Article VII, Section 7 of the Rules.  Nothing in that provision prohibits use of a member's home address as the return address on campaign mailings.  Likewise, nothing in that provision requires use of the local union address as the return address.

The protestors nonetheless assert a violation occurred, citing the form Cook completed to request the campaign mailing.  That form stated the following:

IMPORTANT: ALL ENVELOPES MUST INCLUDE A RETURN ADDRESS OF: TEAMSTERS LOCAL UNION NO. 377, 1223 TEAMSTERS DR., YOUNGSTOWN, OH 44502, so that the Local Union can update its records of any incorrect member addresses.

(Capitalized emphasis in original.)

No similar provision appears in the Rules.  Despite this absence, the protestors asserted two policy reasons for enforcing the form's provision.  First, as stated in the form, the local union seeks to gain the benefit of being able to update its membership records by seeing which pieces were returned as undeliverable and by examining any forwarding information that the postal service might provide.  According to the protestors, the local union will be deprived of that advantage by having returns sent to Cook's home.  We reject this argument.  We note that ballot packages, mailed at or near the same time as the campaign mailing, will perform the same function.  Given that the mailing lists for the ballots and the campaign mailing are substantially identical, the local union will learn from the returned ballot packages which addresses in the TITAN database must be updated, obviating the need to obtain the same information from the campaign mailing.

The second policy argument protestors advanced is that, by receiving undeliverable pieces from his slate's campaign mailing at his residence, Cook will have access to confidential member information that he is prohibited from possessing.  We reject this argument as well.  We find that only those pieces that have incorrect addresses will be returned to Cook, and membership information with incorrect addresses will give him no discernable campaign advantage.

We comment further on the protestors' arguments by noting that the Rules place an implicit limitation on using the local union's return address on campaign mailings.  Such use, with nothing more, may convey to the recipient that the mailing is sent by the local union on the candidate's or slate's behalf and that the local union has endorsed that candidate or slate. That is why the Rules  require campaign mailings made using a local union bulk rate permit to include a clear disclaimer that the union does not endorse the material.  Rules, Article VII, Section 7(a)(3).  Endorsements and implicit endorsements of candidates by unions are prohibited under the Rules.  Article VII, Section 12(b).  In Collins &Strohl, 2011 ESD 143 (March 2, 2011), we found that a campaign mailing that carried the return address "International Brotherhood of Teamsters," and nothing more, conveyed the false impression that the mailing was from the IBT and that the IBT endorsed the slate.  We remedied the violation by ordering an extension of time for balloting and by permitting a campaign mailing to be done on the protestors' behalf at no cost to them.  Here, had Cook followed the local union's form to the letter, his slate's mailing would have appeared to have been sent by the local union as an endorsement by the local union, as the form did not require that the mailing include a disclaimer (and his mailing did not include such a disclaimer) that its contents were campaign literature that were not endorsed by the local union. 

For these reasons, we reject protestors' contention that Cook's use of his home address on the campaign mailing violated the Rules.

Finally, protestor Lesicko contended that Cook had improper access to a phone list and was using it to campaign.  Lesicko presented no evidence to substantiate this allegation, and Cook denied it.  A protest without evidence will be denied.  Joseph, 2006 ESD 132 (March 31, 2006); Gegare, 2010 ESD 10 (July 27, 2010). 

Accordingly, we DENY these protests in their entirety.

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 226

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