Protest Decisions

OFFICE OF THE ELECTION SUPERVISOR

for the

INTERNATIONAL BROTHERHOOD OF TEAMSTERS

IN RE: David Esposito,                        )           Protest Decision 2011 ESD 250

                                                                        )           Issued: May 8, 2011

             Protestor.                                           )           OES Case Nos. P-259-041511-NE                

____________________________________)

            David Esposito, member of Local Union 72 and delegate candidate on the Fighting 4 The Members slate, filed a pre-election protest pursuant to Article XIII, Section 2 of the Rules for the 2010-2011 IBT International Union Delegate and Officer Election (“Rules”).  The protest alleged that Local Union 72 failed to timely respond to Esposito’s written request:

·       for a current worksite list;

·       to inspect and make notes from the current collective bargaining agreement; and

·       to inspect the local union membership list. 

The protest also alleged that Terry Eldrich, local union secretary-treasurer and delegate candidate on the Executive Leadership slate, removed Fighting 4 The Members campaign literature from the break room at the Williamsville toll station of the New York State Thruway.

            Election Supervisor representative Deborah Schaaf investigated this protest.

Findings of Fact

            Local Union 72 represents Teamsters employed by the New York State Thruway Authority (“NYSTA”), including toll collection, maintenance, clerical and machine repair workers.  The local union maintains two business offices, a principal office in New York City and a satellite office in Albany. 

            Esposito has been a member of Local Union 72 for 17 years.  While he has not previously run for union office, he has been a vocal critic of union leadership.  Esposito lives in Buffalo and is employed at the Williamsville toll station of the NYSTA.

            Local Union 72 held its delegate election nomination meeting on February 16, 2011.  One full slate of three delegates and one alternate delegate (the Executive Leadership slate) was nominated from the floor, and three independent candidates submitted written nominations.  None of the independent candidates submitted a written acceptance and when challenged, they responded that they were unaware of the need to submit one.  The ensuing investigation revealed that Local Union 72 had not sent the notice of nominations to all union members.  As a consequence, the Election Supervisor ordered the nomination process re-run.  A nomination notice was sent to the members and a second nomination meeting held on March 31, 2011.  At this meeting, two full slates of three delegates and one alternate delegate were nominated (the Executive Leadership slate and the Fighting 4 the Members slate).  Independent candidates for delegate and alternate delegate also were nominated.  Ballots were mailed on May 2.  They are to be counted on May 24.

            On Friday, April 8, Esposito faxed a request to the primary office of Local Union 72 seeking “a current list of all sites with corresponding addresses where union members work.”[1]  Upon receipt of Esposito’s request, the local union prepared a worksite list and sent it to Esposito on April 13 by certified mail.  A copy of the U.S. Postal Service certified mail receipt and the USPS tracking report were provided to our investigator; they show that the list was mailed from New York City on Wednesday, April 13 and was delivered to Esposito on Friday, April 15.  However, Esposito filed this protest on Thursday, April 14, as he had not yet received the list. After receiving and reviewing the list, Esposito told our investigator he was satisfied with it.

            On April 13, Esposito faxed a second request to the local union’s primary office asking that he be permitted to inspect all collective bargaining agreements and a list of members.  Five days later, on April 18, the local union sent Esposito another certified letter setting the arrangements for reviewing these documents at the primary office of Local Union 72.  Before Esposito received the certified letter, he contacted our investigator and asked that his protest be expanded to include the union’s failure to make arrangements for the inspection and review requested in his April 13 fax within five days as required by Article VII, Section 1 of the Rules.

            The requested inspection process is ongoing, and Esposito has stated he is satisfied with the arrangements for review and inspection.

            Finally, in his April 14, 2011 protest, Esposito claimed that “campaign materials are coming up missing when the Secretary-Treasurer visits the toll stations.  I feel Mr. Eldrich is using stall tactics and running interference on my campaign because of the rerun.”  With one exception, Esposito could not provide any specific information or identify any witness regarding this charge.  

            The exception occurred April 19 at Williamsville Thruway Exit 50.  On that date and place, Esposito stated he took a break from his work day from 1 p.m. to 1:30 p.m.  When he left the break room, he saw copies not only of his campaign literature but also an “open letter to members” said to be highly critical of Local Union 72 leadership.  The open letter is acknowledged by both Esposito and Eldrich to have been prepared by local union member Don Petrillo, who is not a candidate in the election.  Esposito claimed that when he left work at 3 p.m., no copies of his campaign literature or the open letter remained in the break room.  He stated that Eldrich arrived at Exit 50 between 2:00 and 2:30 p.m. the same day and contends that the disappearance of the literature by 3 p.m that day is evidence that Eldrich was the person responsible for removing it.

            Eldrich agreed he visited the Exit 50 facility that day and said he came specifically to pick up a copy of the Petrillo’s open letter.  Eldrich stated that when he entered the break room, campaign literature for the Fighting 4 the Members slate was displayed on the table, but the Petrillo letter was not.  Eldrich recalled that he asked Tracy Shack, a member then in the break room, whether she knew anything about the Petrillo letter.  According to Eldrich, Shack said she had seen the letter in the break room an hour earlier but did not know what had happened to it.  Eldrich denied that he removed or touched the Fighting 4 the Members slate campaign literature.  Eldrich provided our investigator with contact information for Shack, but she did not respond to two messages left on her answering machine and, therefore, could not be reached to confirm Eldrich’s account.

            Esposito told our investigator that he subsequently spoke with Eldrich about the missing literature.  Esposito acknowledged that he did not witness Eldrich remove it and that Eldrich denied doing so.

 

Analysis

           

            Failure to timely provide a worksite list.  Article VII, Section (1)(b) of the Rules provides that each candidate shall have the right to “a current list of all sites, with corresponding addresses, where any and all Union members work.”  Requests for such worksite lists must be in writing and “shall be honored within five (5) days.”  Here, the local union complied with the protestor’s written request within five days, though the protestor did not receive the list until two days later because of mailing time.  The protestor has stated his satisfaction with the list.  Accordingly, we deem this aspect of the protest RESOLVED.

            Failure to timely provide collective bargaining agreements for review and failure to timely provide a membership list for inspection.  Article VII, Section (1)(a) of the Rules provides that each delegate candidate has the right “to inspect and make notes from all collective bargaining agreements (including all modifications, supplements, riders, stipulations and appendices) covering any member of the Union.”  Requests to inspect or make notes from such agreements “shall be made to the Local Union’s Secretary-Treasurer or principal officer in writing and shall be honored within five (5) days.”

            Article VII, Section 2 of the Rules provides that each candidate has the right, “once within thirty (30) days prior to the casting of ballots in any election in which he/she is a candidate, to inspect a list containing the last known names and addresses of all members of the Union who are to participate in such election. The right of inspection does not include the right to copy the list but does include the right to compare it with a personal list of members.  However, if the Union permits any candidate to copy the list, all candidates must be notified of this and provided the same opportunity. The Union shall not, in any way, discriminate in favor of or against any candidate with respect to access or use of the membership list.”

            Again, the local union timely responded to the protestor’s request to inspect and make notes from relevant collective bargaining agreements, and to inspect a list containing the last known names and addresses of all union members. The mail delivery of the union’s response delayed notification by a few days.  Subsequent to receipt of the response, the protestor made arrangements to exercise his rights and stated he was satisfied with the manner in which inspection was provided.  We deem this aspect of the protest RESOLVED as well.

             Removal of campaign literature.  Article VII, Section 12(d) provides that no restrictions shall be placed “upon candidates’ or members’ preexisting rights to solicit support, distribute leaflets or literature, conduct campaign rallies, hold fund-raising events or engage in similar activities on employer or Union premises.”  In this case, the protestor was unable to provide any specific instance in which the allegation contained in this part of his protest had occurred prior to the filing of the protest, nor was he able to provide evidence to support a claim either that the local union or candidate Eldrich interfered with his preexisting right to distribute literature in his employer’s break room subsequent to the filing of the protest.   Eldrich has denied the allegation.  Absent proof to support the allegation, we DENY this aspect of the protest.

           

            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</</p>

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 250

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

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

David Esposito

103 Laird Avenue

Buffalo, NY 14207

despo072@yahoo.com

Terry Eldrich, Secretary-Treasurer

Teamsters Local Union 72

265 W. 14^th Street, #704

New York, NY 10011

terryel@aol.com

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