OFFICE OF THE ELECTION SUPERVISOR
for the
INTERNATIONAL BROTHERHOOD OF TEAMSTERS
IN RE: SANDY POPE, ) Protest Decision 2011 ESD 274
) Issued: June 7, 2011
Protestor. ) OES Case Nos. P-147-021711-NE
____________________________________)
Sandy Pope, member and principal officer of Local Union 805 and candidate for IBT General President, 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 Joint Council 16 violated the Rules by interfering with Pope’s rights as a candidate for delegate and for International office.
Findings of Fact and Analysis
Pope has been principal officer of Local Union 805 since 2005. She stood for re-election to that position in the Fall 2010 local union officers election against Robert Gonzalez. Following her victory, member Mario Peralta filed a post-election challenge with Joint Council 16 alleging conduct that was said to have affected the outcome of the election. In addition, Peralta filed internal union charges with the joint council claiming that the same conduct that allegedly affected the outcome of the election also constituted misconduct by Pope for which internal union discipline would lie. The post-election challenge was heard by the joint council in December 2010. In a decision issued on or about February 14, 2011, the joint council found that the alleged conduct did not affect the outcome of the election and therefore denied the challenge. However, the joint council ordered that Local Union 805 post a notice on all worksite bulletin boards finding that Pope had violated election procedures. The joint council also scheduled hearing on the internal union charges Peralta filed against Pope.
On February 16, 2011, Local Union 805 appealed the joint council’s decision on the post-election protest to the General Executive Board and requested that the joint council’s order for notice-posting be stayed pending the determination of the appeal. General President Hoffa stayed the joint council’s decision on February 17 pending the GEB’s processing of the appeal. The appeal remains pending and the stay remains in effect.
Separately, Local Union 805 filed an objection with Joint Council 16 asserting that the appropriate forum for Peralta’s internal union charges against Pope was the local union, not the joint council. By letter dated February 22, the joint council stayed the processing of the internal union charges, pending the outcome of the GEB’s determination of the appeal of the joint council’s decision on the post-election challenge. The letter further stated that, once the GEB issued its decision on the appeal, the joint council would address the objection to its jurisdiction to hear the charges.
Pope filed this protest on February 16, alleging that the joint council’s decision to order a notice posting for a post-election challenge that it denied was issued for the purpose or effect of interfering with Pope’s right under Article VII, Section 12(a) to run for delegate and for International office, and that the notice posting constituted an impermissible union contribution to Pope’s opponents in those elections. Ballots were scheduled to be mailed in Local Union 805’s delegate election on February 23 and counted on March 21. Pope was a candidate for delegate in that election. Under the joint council’s decision, the notice announcing to the membership that Pope had engaged in electoral misconduct in the officers election was required to be posted by February 19 and remain posted for thirty consecutive days (i.e., until March 21). Because of the GEB’s stay, the notice was not posted. Pope won the delegate election over Peralta by a vote of 278 to 130.
On these facts, the Election Supervisor will defer decision in this protest until the GEB decides the appeal of the joint council’s order in the post-election challenge, or until the stay issued in either case is dissolved. Prior Election Officers have often deferred to collectively-bargained grievance and arbitration procedures, or to the resolution of litigation. See, Mullins, PR332 (October 29, 1998); Tapia, PR300 (October 8, 1998); Martinez, PR173 (August 27, 1998); Guerrero, P1315 (December 4, 1996); McBride, P1188 (November 19, 1996); Watson, P1179 (November 11, 1996), aff’d, 96 EAM 279; Golubovic, P440 (March 6, 1996); Braswell, P384 (February 27, 1996); Jordan, P196 (November 8, 1995); Harrington, P165 (September 27, 1995); and Pope, 2000 EAD 2 (August 1, 2000).
Here, the GEB does not have before it as an alleged Rulesviolation the question of the improper purpose or effect that the joint council decision allegedly represents. Yet the same was true as to the status of IBT election rules issues in those arbitrations to which Election Officers have deferred. Even so, Election Officers deferred because “the issues presented [in the protest could] be fully resolved in other forums.” Martinez, supra. This is also true here, since at a minimum the General President has granted (in the form of his stay of the notice posting requirement) a remedy that would affect the ruling and remedy here, and the GEB may grant (as final relief) such additional remedies that would affect the ruling and remedy here. Moreover, the findings of fact and conclusions of law the GEB will make will be worthy of review and possible adoption.
Despite this deferral, the Election Supervisor has jurisdiction and authority to determine the instant protest on its merits. Further, as in prior deferrals to the arbitration process, the Election Supervisor will not be bound, in whole or in part, by the GEB’s decision or by any findings of fact or conclusions of law it makes. See Golubovic, P25 (July 21, 1995); Henderson, P760, aff’d, 91 EAM 187; aff’d, U.S. v. IBT, 776 F. Supp. 144 (S.D.N.Y. 1991), aff’d, 954 F.2d 801 (2d Cir. 1992).
Thus, while the Election Supervisor will defer his decision here, he has the authority to conduct an independent investigation of these allegations of the protest and issue a decision on the merits based upon his determination and evaluation of the evidence presented to him.
Pope, Local Union 805, Joint Council 16 and the IBT are directed to inform the Election Supervisor of the GEB’s decision on appeal. Further, these parties are directed to inform the Election Supervisor in the event either stay issued in these matters is dissolved or modified. Finally, upon the GEB’s decision on the appeal, these parties are directed to provide the Election Supervisor with position statements that address the impact, if any, the GEB’s decision should have on the resolution of this protest. Any other interested party who wishes to do so may also file a position statement with the Election Supervisor at that time.
Accordingly, the protest is DEFERRED.
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 274DISTRIBUTION 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
Sandy Pope, President
Teamsters Local Union 805
44-61 11th Street, 3rd floor
Long Island City, NY 11101
sandypope@teamsterslocal805.org
George Miranda, President
Teamsters Joint Council 16
265 West 14th Street, Suite 1201
New York, NY 10011
jc16ibtadmin@verizon.net
Bruce Levine
Cohen, Weiss & Simon, LLP
330 West 42nd Street
New York, NY 10036
blevine@cwsny.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