Protest Decisions

OFFICE OF THE ELECTION SUPERVISOR

for the

INTERNATIONAL BROTHERHOOD OF TEAMSTERS

            All members of the Arnold-Gerdes slate were elected; protestor and his slate members finished in the final positions for each office. 

            We now address the various aspects of Lytle’s protest.

Alleged offer of bribe

            In his first allegation, protestor Lytle claimed he learned on the day of the ballot count, February 28, that Dennis Arnold offered Kent Koester, candidate for alternate delegate on the Members For Change slate, what Lytle termed a bribe not to run in the delegates and alternate delegates election.  The protestor said that after the count was concluded, he and two members of his slate, Billy Craig and Stuart Crebb, met Koester at Starbucks for coffee and were told that  Arnold four times offered to buy Koester a plane ticket to Las Vegas to attend the IBT convention if he would not run in the election, and that he offered to place Koester on the Arnold-Gerdes slate to dissuade him from running against the slate.  According to the protestor, Koester declined the offer and decided to run on the Members For Change slate.  Koester, a candidate for alternate delegate, received more votes than Lytle or the alternate delegate candidates on Lytle’s slate.  Koester lost, however, to the alternate delegate candidates on the Arnold-Gerdes Slate. 

            Arnold told our investigator that he attended a grievance hearing with Koester at the Holland Freight terminal on December 1, 2010 and the two then went to lunch.  Arnold stated that Koester indicated he would like to attend the IBT convention in Las Vegas.  Arnold told Koester that he would personally (from his own funds) purchase an airplane ticket for Koester to attend the convention as a guest, but that Koester would have to pay for his hotel and other expenses.  Approximately one week later, Arnold asked Koester if he was interested in being a candidate for alternate delegate on the Arnold-Gerdes slate; according to Arnold, Koester replied that he wanted to run for delegate.  Approximately two weeks after Arnold offered to buy Koester a plane ticket to the convention, Koester and Glenn Nicodemis came to the local union hall to speak with Arnold about their decision to run as candidates in the upcoming election.  Arnold explained to them the process for getting on the ballot, and repeated his offer to purchase a ticket for Koester to attend the convention as a guest.  In a fourth meeting between Koester and Arnold, Koester informed Arnold that he definitely was going to run, but as a candidate for alternate delegate on the Members For Change slate.  Local Union 414 held its nomination meeting on January 4, 2011 and Koester was successfully nominated as a candidate for alternate delegate. 

            Arnold disputed Lytle’s claim that Lytle learned of the offers to Koester for the first time at the ballot count.  Arnold provided our investigator with a Lytle slate campaign flyer containing a photo of Arnold with the text, “Has Monte Hall made you a deal so you wouldn’t run against him?  One member of the other slate running was offered a plane ticket to Vegas for the convention if he didn’t run.”  Lytle confirmed to our investigator that the flyer was indeed prepared and circulated by his slate and that it was developed in late January 2011, during the delegates election.  Lytle claimed that while he learned as early as the fall of 2010 that Arnold had offered to personally pay for a plane ticket for Koester to attend the convention, he did not learn until February 28, 2011 that the offer was repeated multiple times and that Arnold had also offered to place Koester on the Arnold-Gerdes slate as a candidate for alternate delegate.  

            Koester confirmed to our investigator that he had lunch with Arnold (as Arnold described) after a grievance hearing at Holland Freight, where he is employed and where Arnold serves as business agent.  He stated that Arnold told him he had heard Koester was interested in running for delegate.  At the lunch meeting, Arnold told Koester that he could get him to the IBT convention if he wanted to go.  Koester confirmed to our investigator that Arnold offered on at least two occasions to personally pay for a plane ticket for Koester to attend the IBT convention.  He also told our investigator that Arnold telephoned him at home to tell him that the Arnold-Gerdes slate had one opening for alternate delegate for the upcoming delegates election because a candidate the slate was considering was not eligible to run.  Koester perceived that Arnold offered him a plane ticket to the convention as an inducement to keep him from running against the Arnold-Gerdes slate.  While he denied that Arnold made him an outright offer of a place on the Arnold-Gerdes slate, he did perceive the conversation as implying that the offer might be made if he were interested in joining Arnold’s slate.  Koester told our investigator that he did not support the International Officer candidates that Arnold supported, so he decided to put together his own slate.  He ultimately chose to run on his slate as an alternate delegate, a decision he said he later regretted.

            Koester confirmed that he had the conversation with Lytle at Starbucks on February 28, after the conclusion of the ballot count, as reported by the Lytle.  He indicated that Lytle tried to convince him to file a protest; but he declined partly because he thought it was too late.  He also indicated that his slate earlier made the conscious decision not to file a protest involving the plane ticket offer because the members of his slate wanted to keep the campaign positive and not “go negative.”    

We find Lytle’s allegation untimely raised.  Article XIII, Section 3 of the Rules defines a post-election protest as one “concerning election day or post-election day conduct.”  The allegation that Arnold offered Koester a plane ticket to the convention in exchange for not running in the election concerned alleged conduct that occurred in December and January.  As Lytle’s campaign literature, admittedly prepared and published in late January 2011, made clear, Lytle was aware of the offer more than a month before the ballots were tallied and he chose not to file any protest.  Lytle’s post-election protest, filed March 3, 2011, three days after the ballot count, came too late to address those issues.

In Berg, 2006 ESD 296 (June 4, 2006), aff’d, 06 EAM 44 (June 15, 2006), we stated:

Post-election protests are properly addressed to actions occurring at or after the ballot count itself. They are not to be used to assert violations based on matters that the protestor knew (or should have known) about in the pre-election period. A protestor cannot sit on a pre-election allegation, wait for the outcome of the election, and then seek to upset the entire result based on pre-election conduct that, if a violation, could have been addressed earlier.

See also, Wood, 2011 ESD 202 (April 4, 2011); Johnson, 2011 ESD 227 (April 21, 2011).

            Lytle’s claim that he did not learn of the plane ticket offer alleged here until the day of the count is rejected.[1]  Instead, we find that Lytle deliberately decided to object to the conduct by campaigning against it, not by filing a timely protest. 

            Under these circumstances, we find that Lytle waived this protest by not filing it timely, and we DENY this aspect of the protest on that basis. 

Alleged threat by Gerdes

            In this aspect of the protest, Lytle alleged the following:

It was brought forward on February 28, 2011 that during the balloting period for delegates in Local 414 a member of the Arnold-Gerdes Unity Slate threatened members at Tuthil pump.  The members were told that if they didn’t vote for the Arnold-Gerdes Unity Slate he would not hear their grievances or discharges.

The protestor told our investigator that he learned from Kent Koester at the ballot count that George Gerdes made the threat to the members employed at Tuthil.  Protestor stated further that Koester said he spoke to some of the members who had been threatened, but that they refused to give their names.  Koester told our investigator that while campaigning at Tuthil Pump during the election period, on a date he could not recall, a female worker told him that Gerdes had made threats not to hear grievances unless the workers voted for the Arnold-Gerdes slate.  He said that the female worker refused to give her name or any identifying information for fear of retaliation.  Koester did not file a protest concerning this incident because he felt he could not substantiate the charges without the workers with first-hand knowledge coming forward.  Koester confirmed that he told the protestor about this alleged threat at Starbucks after the ballot count on February 28.

            Gerdes emphatically denied the allegation to our investigator.  He noted that the election was by secret ballot, which all members knew, and he would have no way of knowing for whom the Tuthil members voted.  He stated that he campaigned at Tuthil Pump on February 4, 2011 immediately after flying back to Fort Wayne from Florida, since the worksite is near the airport.  He stated that he campaigned after lunch by passing out campaign buttons, telling members that he would appreciate their vote, and asking them if they had any reason to vote against him. 

            The protest alleged conduct that occurred during the pre-election period, weeks before the ballot count.  Koester, a candidate with an interest in enforcing the Rules equivalent to Lytle’s, did not file any protest relating to the purported conduct because he was unable to substantiate it.  As no other witnesses were identified, the only first-hand statement relating to the purported incident came from Gerdes, who denied any misconduct.   

Article XIII, Section 2(b) requires that a pre-election protest “be filed within two (2) working days of the day when the protestor becomes aware or reasonably should have become aware of the action protested or such protest shall be waived.”  Here, although the conduct is said to have occurred at some unspecified point during the balloting period, Lytle stated he could not reasonably have known of it before February 28, the date Koester told him.  Assuming that Lytle could refresh stale allegations simply by hearing them for the first time well after they are said to have occurred, the protest is still untimely.  Lytle claimed that he learned of the incident February 28 and his deadline for filing was therefore March 2.  Lytle’s protest is untimely because it was filed on March 3, and we DENY it on that basis.  Were we to consider the available evidence, we would find the allegation unsubstantiated because no evidence was offered from any first-hand source to corroborate the allegation, while Gerdes denied all misconduct.

Alleged distribution of campaign literature while on employer-paid time

            Here, Lytle alleged that a member of the Arnold-Gerdes slate distributed campaign literature while on the clock at Allied, the member’s employer.  Lytle claimed that James Rice, a member of the Arnold-Gerdes slate employed on the safety line at Allied (now Jack Cooper) distributed campaign material to drivers as they brought their trucks through the mandatory safety line for inspection before loading them.  Lytle claimed that Rice reached approximately 160 drivers in this way on an unspecified date during the balloting period, giving him a “captive audience [to campaign] while being paid by the company.”

            Lytle told our investigator that he learned of this conduct on the evening of the ballot count, February 28, after the count was concluded, from his uncle, LeRoy Chester, who works in the yard at Allied, but who did not see Rice distribute the literature.  According to Lytle, Chester told him that he learned of the distribution from a driver who received the flyer from Rice when passing through the safety line. 

            Rice denied campaigning on employer-paid time.  He told our investigator he does not and did not work on the safety line at Allied, but rather worked in the pit next to that line.  He said that 90% of his work is performed “down in the hole” with no interaction with drivers.  He stated that he was off work for medical reasons during the balloting period and while off work he gave a stack of Arnold-Gerdes slate bumper stickers to Randy Tester, who works on the safety line.  He stated that Tester offered to campaign in Rice’s place because of Rice’s medical condition.  Rice stated that Tester told him he passed out bumper stickers to the drivers, but Rice did not know whether Tester did so while working. 

            Tester told our investigator that he runs the safety line at Allied.  He performs a multi-point vehicle inspection of each truck coming through the line, a task that takes ten to fifteen minutes per vehicle.  Trucks that pass the inspection proceed out on the road; trucks that fail are sent to the repair shop.  Tester said that he and each vehicle’s driver complete and exchange paperwork as part of the inspection process. 

With respect to campaign activity, Tester corroborated Rice’s statement that he distributed campaign bumper stickers for the Arnold-Gerdes slate while working the safety line during the delegates election.  He stated that he handed the campaign item to each driver along with the necessary paperwork associated with the safety inspection.  He denied that passing the bumper sticker to the driver caused any delay in completing the inspection, caused him to deviate from his assigned tasks, or interfered with the driver’s completion of the inspection requirement.

            Although Lytle claimed that he learned of this conduct on the evening of February 28, his uncle told our investigator that he informed Lytle of the activity at least a week earlier, when Lytle came out to the Allied worksite to campaign.  As with the previous allegation, the alleged conduct here occurred during the pre-election period and is governed by the pre-election protest procedure.  Lytle filed this aspect of the protest on March 3, three days after he claimed he learned of the conduct and some ten days after his uncle said he informed him of it.  It is therefore untimely filed and we DENY it on that basis.  Were we to consider the allegation on the merits, we would find Tester’s campaign activity as incidental to his work assignment, as the activity did not interfere with or cause any member to deviate from his assigned duties.

Alleged removal of campaign literature by supporter of Arnold-Gerdes slate

 

            In this aspect of the protest, Lytle stated that he learned on February 28 that George Gerdes of the Arnold-Gerdes slate allegedly removed campaign literature of the other two slates competing in the delegates election at two worksites, Transport Support and Tuthil Pump.  Lytle said he learned this information from Koester and from Lytle’s uncle, LeRoy Chester.  Koester told our investigator that the only evidence he had that Gerdes had removed campaign literature at Tuthil Pump came third hand.  He stated that the information came to him from one of his slate members whose girlfriend, a bartender, was said to have heard it from a Tuthil employee at the bar.  Because he could not verify the information, Koester did not file a protest concerning this allegation.  Koester also told our investigator that his slate’s literature was routinely removed from the bulletin boards at Tuthil, but that a supporter of the slate employed there replaced the literature as soon as it was removed.

            Gerdes is the business agent for the bargaining units at Tuthil Pump and Transport Support.  He told our investigator that he never removed any campaign literature from either location.  He stated that Tuthil Pump does not allow campaign literature to be posted and he did not see Lytle slate campaign literature on the bulletin boards at that location.  Gerdes stated further that he posted an Arnold-Gerdes slate card on the Transport Support bulletin board, but denied that he removed any opposing slate literature from any bulletin boards or that he directed anyone else to do so. 

As with the aspects of the protest previously discussed, this claim alleged pre-election conduct.  Accepting without deciding that Lytle first learned of Gerdes’ alleged conduct on February 28, his deadline under the Rules for filing a protest was March 2, two working days later.  He filed on March 3, and his protest in this regard was untimely.  We DENY it on that basis.  Were we to consider the available evidence, we would find the allegation unsubstantiated because no evidence was offered from any first-hand source to corroborate the allegation and Gerdes directly denied all misconduct.  The allegation further lacks any specifics as to when the purported misconduct occurred. 

Allegation that the post office placed ballot return envelopes in multiple post office boxes

            In this aspect of his protest, Lytle complained that on the day of the ballot count, the local union election committee representative went to the post office at 9 a.m., accompanied by observers from each slate, retrieved the ballots and returned to the count site.  While sorting through the box containing the ballot return envelopes (BREs), the committee found another post office box key in the bottom of the box.  The committee representative and observers then returned to the post office and opened another post office box containing 107 additional ballots, which they then brought back to the count site and processed with the other ballots.  Lytle questioned the integrity of the ballot return and counting process. 

            Fred Towe, Local Union 414’s attorney who served as head of the local union election committee and who administered the ballot count, told our investigator that when he went to the post office with observers on count day, he found several BREs in the small post office box rented by the local union for receiving returned ballots.  In the same box was a key to a second post office box and a note directing him to the second box.  When he used the key to open the second post office box, he found a large number of BREs in a post office bin.  With campaign observers present, Towe removed the bin containing the ballots and returned to the count site with the ballots still in the bin.  Upon going through the bin at the count site, Towe discovered a third key in the bottom of the bin, beneath the ballots.  Towe then directed Deb Horvath, a member of the committee who also was employed by the local union as an office clerical, to return to the post office and use the key to open what apparently was a third post office box.  Horvath did so, with observers for each slate present, and retrieved a third box of ballots, which she then brought back to the count site.  No more keys were found in the post office boxes or bins.

            We find no violation of the Rules here or any reason to question the integrity of the ballot return process.  The evidence shows that the number of BREs returned by members exceeded the storage capacity of the post office box the local union rented for that purpose, and that the post office responded to that circumstance by filling a second and then a third post office box.  No evidence was presented or found that the security of the returned BREs was compromised.

            Accordingly, we DENY this aspect of the protest.

Allegation that ballots with their bottoms cut off were nonetheless counted

            Lytle here complained that during the counting of the ballots, several ballots were found to have a portion at the bottom of the sheet cut off.  He questioned whether the ballots in this condition were copies rather than originals and whether they were voted fraudulently by a single person. 

            There is no dispute that some ballots were in the condition Lytle claims.  This issue was evaluated contemporaneously at the count.  The protestor did not allege nor did our investigation show that the ballots with cut-off bottoms were missing the names of any candidates for delegate or alternate delegate.  Kent Koester, a candidate for alternate delegate on the Members For Change slate, told the protestor that the election committee representatives received an opinion from Bill Broberg, OES regional director for the midwest region, that the ballots should be counted so long as no candidates’ names had been cut off and the intent of the voter was otherwise clear.  The election was conduct by a manual count, and the condition of the returned ballots did not affect either the legibility of the vote or the counter’s ability to tally any vote. 

            Lytle provided no evidence that the cut ballots were either copies or voted by a single person. The protestor stated that all three slates received votes on ballots in that condition. 

            Fred Towe, the local union attorney who administered the election, told our investigator he estimated some fifty ballots had a portion cut off, but none were missing the names of any candidates.  He counted those ballots, based on the advice given by Broberg.  Towe stated that he had no way to determine which post office box or boxes the BREs containing the cut-off ballots were retrieved from. 

            On these facts, we find no Rules violation in counting the ballots that were cut off, where the names of all candidates appeared on the portions returned in the BREs and the voter intent could be discerned clearly.  

            Accordingly, we DENY this aspect of the protest.   

Allegation that members with dues arrearages were excluded from voting

            Lytle here alleged that in January 2011, Arnold sent letters to bus drivers at Fort Wayne Community Schools, a bargaining unit Lytle served as business agent, concerning their dues arrearages.  He stated that Arnold informed the local union executive board at about the same time that the local union’s auditor had recommended that these letters be sent in order to recover revenues for the local union.  Lytle claimed, however, that the letters were sent with the objective of disqualifying these members from voting in the delegates election.

            Lytle claimed to our investigator that Arnold asked him in December 2010 who the bus drivers were likely to support in the delegates election, and Lytle replied that they would likely vote for whomever Lytle recommended.  Lytle stated that the bus driver members were on dues check-off but that the employer was not collecting back dues, keeping the members permanently in arrears.  According to the protestor, Arnold sent letters to approximately 100 bus drivers in January 2011.  The protestor alleged that on the day of the ballot count, Arnold brought a list into the count room and informed Fred Towe, the attorney for Local Union 414 who administered the ballot count, that these bus drivers were ineligible to vote.  The protestor conceded, however, that the TITAN records showed the drivers to be eligible and that the votes of those who returned ballots were actually counted. 

            Arnold told our investigator that he sent letters to only 42 members who were bus drivers at Fort Wayne Community Schools concerning their dues arrearages, and that he did so as directed by IBT auditor Ed Pratt.  He stated that Article X, Section 5 of the IBT Constitution addressed dues arrearages and directed “… the Local Union [to] notify the member of his employer’s failure and payment shall be made by the member within thirty (30) days of said notice in order to retain good standing status.”  Arnold provided our investigator with copies of several of the letters dated January 11, 2011.  The official response to these protests from Local Union 414 added that, contrary to the protest, a purpose of the letters was to inform the members that they might be ineligible to vote in the delegates election unless they paid their back dues, and to make sure that they had the opportunity to correct the situation before the end of January, the month through which they had to have their dues paid to be eligible to vote.

            Eligibility to vote in the delegates election was determined by the criteria set forth in Article V of the Rules.  The Election Control Roster (ECR), prepared in accordance with those criteria, was used to determine the members eligible to vote.  The protestor conceded that the ECR showed the bus drivers in question to be eligible. 

            Accordingly, we DENY this aspect of the protest.   

Request for a re-run election

            In this aspect of the protest, Lytle stated: “[t]hough not any one of the following [protests] may hold that a rerun be ordered in the Local 414 delegate election[,] with all combined that would appear to be the only remedy.  I would ask the Election Supervisor respectfully order such.” 

            As we have denied all other aspects of the protest, we DENY the remedy protestor requested.  

              
            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 257

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. Box10128

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. Box272

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

Brian Lytle

5005 Charlotte Avenue

Ft. Wayne, IN 46815

bclytle@comcast.net

Dennis Arnold, Secretary-Treasurer

Teamsters Local Union 414

2644 Cass Street

Ft. Wayne, IN 46808

deb.teamsters@frontier.com

Joe F. Childers

Getty & Childers, PLLC

250 W. Main Street, Suite 1900

Lexington, KY 40507

childerslaw@yahoo.com

William C. Broberg

1108 Fincastle Road

Lexington, KY 40502-1838

wcbroberg@aol.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