Protest Decisions

OFFICE OF THE ELECTION SUPERVISOR

for the

INTERNATIONAL BROTHERHOOD OF TEAMSTERS

IN RE: BRIAN A. LYTLE,                          )           Protest Decision 2011 ESD 259

                                                                        )           Issued: May 17, 2011

            Protestor.                                           )           OES Case No. P-188-010411-MW               

____________________________________)

            Brian Lytle, member of Local Union 414, 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 members of an opposing slate obtained and used a list of members of Local Union 414 in violation of the Rules.

            Election Supervisor representative Joe Childers investigated this protest.

Findings of Fact and Analysis

            Local Union 414 held its nominations meeting January 4, 2011, mailed ballots to members on February 4 and counted ballots on February 28.  Three full slates competed for two delegate and two alternate delegate positions to the IBT convention.  The slate headed by Dennis Arnold and George Gerdes, the principal officer and president of the local union, respectively, won all positions by a substantial margin.

            The protest, filed January 4, 2011, alleged that Arnold directed two other members of his slate to obtain a list of members, including phone numbers, from two companies they represented so that the Arnold-Gerdes slate could conduct a phone bank.  This alleged conduct was said to violate the Rules’ prohibition on use of union resources to obtain member information for a campaign purpose.

            During the delegate election campaign period, Lytle was employed by the local union as an organizer and business agent.  He told our investigator that, sitting in his office one day, he overheard Gerdes yell to Kim Springer, business agent and alternate delegate on the Arnold-Gerdes slate, that he was an idiot and was going to get them in trouble by having two companies email lists of members to the local union clerical staff.  Lytle said that within a day or two thereafter, he overheard local union clerical Deb Horvath call Springer and tell him that the list from one of the companies had not come through successfully and the company was going to resend it.  From this evidence, Lytle concluded that the lists were obtained so that Arnold-Gerdes could use them to campaign.

            Arnold denied the allegation.  He told our investigator that after the local union sent the notice of nominations meeting to members, a number of envelopes were returned as undeliverable because of bad addresses.  Many of these returns were for members employed at Pretzels, Inc., and Pepsico, two employers under Local Union 414’s jurisdiction.  When the nominations meeting showed that the election would be contested, Arnold directed Springer, who represented members at Pepsico, to contact this employer to obtain a new list of their employees who were local union members.  Arnold represented the members at Pretzels, Inc., and he contacted that company himself.  The employers indicated they would email the lists to the union.  Since neither Arnold nor Springer has a computer, the employers were directed to email the lists to Horvath.  When the lists arrived, Horvath gave them to Arnold, who in turn gave them to TITAN operator Ellen Dunfee to check against the addresses in that system.  According to Arnold, current addresses were obtained to insure that members would receive ballots.  This effort was consistent with the local union’s obligation to update its membership list as required by the approved local union election plan.

            Arnold told our investigator that on Saturday, February 5, the day after the ballots were mailed, he and several others gathered at the home of Aaron Gerdes, George Gerdes’ son, to make campaign phone calls for the Arnold-Gerdes slate.  Arnold said he called members he knew at Pretzels, Inc., where he has been business agent for 26 years, using phone numbers that he had obtained for stewards, former stewards, and grievants over the years.  George Gerdes called his stewards and asked them to encourage members they knew from their worksites to vote for the slate.  Aaron Gerdes called other members he knew and asked them to vote for the Arnold-Gerdes slate.  Arnold denied that any of the callers used phone numbers obtained from lists the union possessed, including the lists obtained the previous month from Pretzels and Pepsico.

            George Gerdes told our investigator that he made the statement attributed to him by the protestor, calling Springer an idiot and stating that he would get them in trouble.  He assumed, just as Lytle did, that Springer was getting the lists to assist the Arnold-Gerdes campaign effort, and that having the lists sent to the local union hall would violate the Rules.  However, Gerdes subsequently learned that the lists were obtained to update the local union’s membership list, not to assist the Arnold-Gerdes campaign.  Gerdes denied that he ever saw or used the lists of members that came in from the two employers.     

            Horvath confirmed that lists were requested and obtained from Pretzels, Inc., and Pepsico.  She said that the requests made to those employers were for member names and mailing addresses only; no request was made for member phone numbers.  However, the lists the employers produced included phone numbers.  Horvath also confirmed that she gave the Pretzels list to Arnold and the Pepsico one to Springer, as each respectively was the business agent responsible for that employer.  Horvath stated that she observed each immediately give the list he had received from her to TITAN operator Dunfee.  To Horvath’s knowledge, neither Arnold nor Springer retained a copy of the list or otherwise had access to it.

            Article VII, Section 12(b) prohibits campaign activity on union-paid time.  Section 12(c) of the same article prohibits use of union facilities and equipment to campaign.  Using one’s status as a union official to obtain a current membership list from an employer for purposes of updating TITAN is encouraged by the Rules to maximize participation in the mail ballot election.  However, using one’s status as a union representative to obtain an employer’s list to campaign would be impermissible under the Rules unless the list – a union asset – was made available to all candidates in accordance with Article VII, Section 12(c) or Article VII, Section 7. 

            Here, we find that the lists obtained from Pretzels, Inc., and Pepsico were permissibly obtained and used to update the local union’s membership list and were not used for any purpose prohibited by the Rules.  Accordingly, we DENY 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

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 259

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

Fred Towe

429 E. Vermont Street, Suite 200

Indianapolis, IN 46202

ftowe@fdgtlaborlaw.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