OFFICE OF THE ELECTION SUPERVISOR
for the
INTERNATIONAL BROTHERHOOD OF TEAMSTERS
IN RE: JOSEPH PRISCO, ) Protest Decision 2011 ESD 265
) Issued: May 28, 2011
Protestor. ) OES Case No. P-078-011411-FW
____________________________________)
Joseph Prisco, member of Local Union 986 and delegate candidate, 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 that Local Unions 986 and 856 did not comply with a remedial posting requirement ordered in Prisco, 2010 ESD 6 (July 8, 2010).
Election Supervisor representative Rochelle Goffe investigated this protest.
Findings of Fact
In Prisco, 2010 ESD 6 (July 8, 2010), we found that business agents and stewards of Local Unions 986 and 856 violated the Rules prohibiting union support for campaign activity by circulating accreditation petitions on behalf of Hoffa-Keegel 2011 on union-paid time at the United Air Lines maintenance facility at San Francisco International Airport (UAL-SFO). Among other remedies, we ordered that both local unions post a remedial notice on all worksite bulletin boards at UAL-SFO and at all other worksites under their respective jurisdictions. The decision ordered that the notice be posted within five business days of the date the decision issued (viz., July 15, 2010) and be maintained through December 15, 2010.
On January 13, 2011, six months after the notice was to be posted and a month after the posting order expired, protestor Prisco’s counsel filed the instant protest, alleging that Prisco learned that day from other members that the local unions had not posted the remedial notice in all workplaces. The protest further alleged that the local unions had failed to post notices of their respective nominations meetings and the notices of nominations meeting results.
Our decision in Prisco required the principal officer of each local union to submit an affidavit attesting that the posting had been completed. Each did so. The compliance affidavit from Local Union 986 secretary-treasurer Christopher Griswold, dated July 20, 2010, stated the following:
Pursuant to my direction, a copy of the Rules notice was posted on all bulletin boards on which Union notices are regularly posted. Attached to this affidavit and incorporated here by this reference, is a list, by employer, site, and location, of all Local Union bulletin boards and the individuals responsible for posting at each site. In addition, in accordance with verbal direction I received on July 14, 2010 and July 16, 2010 from Jeffrey Ellison, the notices were also mailed to all employees of World Airways, CPC Logistics, and to all store employees of Big 5 because Local 986 does not maintain Union bulletin boards at these work sites and mailers are our primary source of communication with these employees.
Attached to the Griswold affidavit was the notice that the affidavit said was posted, which was identical to the notice attached to the Prisco decision. Also attached were spreadsheets identifying 360 locations under Local Union 986’s jurisdiction[1] where notices were posted and the dates they were posted.[2] The top of each spreadsheet read, “Bulletin Board Postings Regarding Protest Decision 2010 ESD 6;” the person responsible for posting signed the bottom of each sheet beneath a sentence that read, “I declare that the information is current and complete to the best of my knowledge.”
The compliance affidavit of Local Union 856 Joseph Lanthier was substantially similar to Griswold’s. Attached to Lanthier’s affidavit were spreadsheets listing 332 worksite bulletin boards where the affidavit said the remedial notice was posted.
Protestor Prisco had no first-hand knowledge that the posting had not been completed as ordered. He did not allege that the notices were not posted on bulletin boards at his own worksite. Instead, he directed our investigator to members of Local Union 986 employed in Las Vegas, Los Angeles, and Honolulu to substantiate his charge that the remedial notice was not posted at those locations.
· The Las Vegas witness, an employee of UAL, told our investigator on January 18, 2011 that he did not recall seeing the Prisco notice posted in July 2010. Business agent Dave Elmore’s signed declaration stated, however, that the notice was posted for Las Vegas UAL employees on the union board located on the west wall of the ready room at the Las Vegas Airport on July 11, 2010.
· A witness employed by UAL at Los Angeles International Airport told our investigator on January 14, 2011 that he had not seen the remedial notice on the bulletin board at his worksite. Elmore’s declaration stated that the notice was posted on six boards for UAL employees at LAX on July 9, 2010, including the union office; next to the time clocks in Hangar 1 first floor, Hangar 1 second floor, and Hanger 2; the LAXPV Sat 7 bag room; and the Terminal 7 post board.
· Two witnesses employed by UAL in Honolulu were also interviewed. One said he had never seen the remedial notice; the other said he could not be sure whether it was posted. Justin Muraki’s signed declaration stated that the notice was posted on the union boards at UAL worksites at the airports on Oahu, Kauai, Kona and Maui. In addition, Muraki confirmed to our investigator on personal knowledge that the notices were posted on those boards.
The protestor’s witnesses put three worksites at issue: no witnesses were identified by the protestor to draw into question the affidavits attesting to the systematic posting of notices at hundreds of other locations.
Protestor Prisco also alleged that Local Unions 986 and 856 failed to post notices of nominations meetings for their respective delegates elections. Local Union 986 held its nominations meeting on January 8, 2011; Local Union 856 held its on January 5. Under Article II, Section 5(d), notice of the nominations meeting must be mailed to all members of the local union at least twenty-one days before the meeting. In addition, the notice must be posted on all worksite bulletin boards. For Local Union 986, the mailing and posting of the nominations meeting notice was to be completed by December 18, 2010; for Local Union 856, by December 15. No allegation was made that either local union failed to mail the notice to all of its members. Further, no evidence was presented, and our investigator found none, that Local Union 856 failed to post the notice on all worksite bulletin boards. Rather, the only evidence presented was that Local Union 986 did not post the nominations notice on all bulletin boards under its jurisdiction. That evidence was provided by the same four witnesses who provided statements to our investigator relating to the Prisco remedial notice on their worksite bulletin boards.
Local Union 986 secretary-treasurer Griswold filed an affidavit of posting with our office dated December 20, 2010 declaring that the nominations meeting notice was posted on all worksite bulletin boards; spreadsheets specifying the location of each such board were attached to the affidavit.
The final allegation concerning notice posting was that both local unions failed to post the notice of nominations meeting results on worksite bulletin boards. No evidence was presented to substantiate this allegation, and our investigation found none.
Local Union 986 held its nominations meeting on January 8, 2011. Twenty-five members were nominated as candidates for 19 delegate positions, resulting in a contested election.
Analysis
In the Prisco decision, we sought to remedy the use of union resources by union business agents and representatives to obtain accreditation signatures for International officer candidates James Hoffa and C. Thomas Keegel. Thus, we ordered that they cease such activity and post the remedial notice on all worksite bulletin boards. In addition, we invalidated the petition signatures obtained through improper use of the resources, required the Hoffa campaign to fund a campaign mailing to all members of those local unions by any candidate for IBT General President who elected to send it.[3] As noted, the decision issued July 8, 2010, and compliance with the notice posting was required by July 15. Both local unions submitted affidavits signed by their principal officers declaring that the postings had been completed. Under the terms of the decision, the postings were to remain in place for five months.
The protest alleged that both local unions failed to comply with the posting requirement. This protest was filed six months after the posting deadline and a month after the posting obligation expired. Article XIII, Section 2(b) states a two working day limitations period for filing pre-election protests.
Prisco seeks to avoid this limitation on his right to file a protest by stating that he learned of the alleged failure to post the very day he filed the protest. Accepting this statement as true without finding it so, we conclude that the protest concerning the remedial notice is untimely filed. The Rules provision places the protestor under the obligation to act reasonably to inquire whether a violation has occurred. Thus, all pre-election protests “must 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.” (Emphasis supplied.) Here, Prisco said he learned of the alleged violation on January 13, 2011 because he called members of the local union who were employed at other worksites that day. But Prisco, having filed the protest that resulted in the July 2010 remedial posting, should have had a particular interest in this remedy. Here, he waited until a month after the end of a five-month remedial period to inquire into compliance. The calls he made on January 13 could have been made at any point during the five-month posting period, starting on July 15, 2010, when the remedial order was active and reports of bulletin board content could have been verified. A protest promptly filed based on evidence gathered from phone calls during the remedial period would have been timely. However, waiting until a month after the posting period has expired to make calls will not create a timely protest, even though Prisco may actually have learned of the alleged violation the same day he filed the protest, because, under these circumstances, it was unreasonable for Prisco to initiate compliance calls a month after the remedial order was no longer in effect.
This protest illustrates the difficulty of handling untimely-filed matters. Here, witnesses contacted promptly after the protest filing were not sure or could not recall if the notices in question were posted. As of January 2011, these individuals were being asked to recall what had been on bulletin boards at least one month before. Because the remedial posting was no longer required in January, statements about the postings could not be verified by viewing or photographing the bulletin boards. Had there been a basis on which to file this protest in July or at any time during the fall of 2010, an investigation could have been conducted, the allegations could have been substantiated (or not) on that basis and, if substantiated, a remedial order could have been tailored. That opportunity ended with the expiration of the posting period.
The protest was also untimely filed with respect to the nominations meeting notice posting. For the two local unions at issue here, the notices were required to be posted in mid-December. A protest alleging failure to post that is filed in mid-January – after the nominations meeting – comes too late for an effective remedy that does not require a re-running of the nominations meeting. Smith, 2011 ESD 163 (March 14, 2011).
Although we decide the matter here on procedural grounds, were we to address the protest on its merits, we would deny it. First with respect to the remedial notice, we were supplied with signed declarations that the notices were posted on all worksites under both local unions’ jurisdictions. The evidence to the contrary is scant, coming from four witnesses at three worksites.[4] The statements of two witnesses were equivocal and failed to substantiate the alleged noncompliance. Such evidence provides an insufficient basis on which to conclude that the postings were not made and the signed declarations were false. With respect to the nominations meeting notice posting, we draw the same conclusion.
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.[1] Local Union 986’s jurisdiction includes employees in the airline industry in addition to other industries. Most of its members are employed at worksites across California; in addition, its members work in Oregon, Washington, Nevada, Idaho, Hawaii, Guam and Saipan.
[2] The spreadsheets also identified the worksites where notices were mailed to all employees in lieu of posting.
[3] The IBT General President campaigns of Fred Gegare and Sandy Pope each availed themselves of the campaign mailing authorized by the decision.
[4] Far less than 1% of the total number of worksites at issue here.
Richard W. Mark
Election Supervisor
cc: Kenneth Conboy
2011 ESD 265DISTRIBUTION LIST (BY EMAIL UNLESS OTHERWISE SPECIFIED):
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
Wade Laszlo
5425 152nd Avenue
Ramsey, MN 55303-6115
steward320@msn.com
Sue Mauren, Secretary-Treasurer
Teamsters Local Union 320
3001 University Avenue SE #500
Minneapolis, MN 55414
smauren@teamsterslocal320.org
Joe F. Childers
Getty & Childers, PLLC
250 West Main Street
1900 Lexington Financial Center
Lexington, KY 40507
childerslaw@yahoo.com
William C. “Bill” 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