Protest Decisions

            The Sandy Pope campaign 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 managers and supervisors of Icon Parking Systems, a New York City employer under the jurisdiction Local Union 272, made a prohibited contribution to Hoffa-Hall 2011 by instructing employees to vote their ballots for that slate because local union officials support that slate. 

            Election Supervisor representatives Deborah Schaaf and Michael Miller investigated this protest. 

Findings of Fact

            Local Union 272 has approximately 6,600 members.  Of these, some 500 are employed by Icon Parking Systems at more than 240 garages and lots in the New York City metropolitan area.  The worksites are serviced by four business agents of Local Union 272.

            The protest alleged a coordinated effort between officials of the local union and managers and supervisors of Icon to influence the votes of Icon employees in the International union election.  The protestor provided the names and contact information for five Local Union 272 members employed by Icon who it believed had evidence relevant to the protest.  Our investigators contacted or attempted to contact every person whose contact information was provided to corroborate the allegations.

            The first such witness, whom we identify here as Witness A,[1] has been a member of Local Union 272 for more than ten years.  He is employed by Icon Parking and works at a garage in Manhattan.  He stated that in early October, Icon manager Norberto Lozano, a non-union employee, telephoned him at his worksite and told him that Icon was “in line with” Local Union 272 and expected all union members it employed to vote for the Hoffa-Hall team.  Lozano also asked the witness to tell the other Local Union 272 members to vote for the Hoffa-Hall slate.

            The second witness, Witness B, has also been a member of Local Union 272 for more than ten years.  He also is employed by Icon Parking, but at a different Manhattan garage than Witness A.  He told our investigator that another union member employed by Icon, Witness C, approached him and said that manager Lozano announced that Icon is endorsing the Hoffa-Hall slate and that employees should vote their ballots for Hoffa-Hall and return them promptly.  Witness B identified two additional members, Witnesses D and E, whom he said told him that Witness C had passed on Lozano’s instructions to them as well.

            Witness F, another Icon employee and union member who works in Manhattan, told our investigator his team leader, union member Witness G, told him that Lozano said that union members should vote their ballots for Hoffa-Hall when they received them.

            Witness H told our investigator that his employer[2] told him that ballots would arrive soon and should be returned promptly, but he denied that his employer told him how to vote.  Witness I told our investigator that his employer told him that ballots should be returned promptly.  When Witness I was asked if his employer[3] told him how to vote his ballot, the witness paused and then said he did “not want to answer the question.”

            Only Witnesses A, B, F, H and I cooperated in our investigation.  The remaining witnesses employed by Icon who are members of the local union – Witnesses C, D, E and G – declined to be interviewed after our investigator reached them by phone.  Several additional witnesses we contacted did not respond to phone or text messages requesting return calls.

            Our investigator’s efforts to reach Lozano directly were unsuccessful.  Icon’s counsel, Joshua Bienstock, contacted our investigator and stated, “No matter what has or has not happened, Icon Parking has been informed unequivocally not to get involved in the Teamster election.”  In a subsequent position statement, Bienstock wrote:

With respect to the “protest” which alleges that ICON Parking is coordinating a campaign in concert with Local 272 in support of the Hoffa-Hall slate, the employer unequivocally denies any such involvement.  As for the reference contained in your October 10, 2011 email, that Nolberto Lozano, a supervisor, communicated with employees and informed them that ICON Parking is “in line with Local 272, and expects all union members working in the garage(s) to vote for the Hoffa-Hall team,” please be advised that Mr. Lozano has never been authorized to make any statements on behalf of the employer with respect to the Teamster election.  He has been directed by his employer to remain neutral, with respect to the Teamster election, in his capacity as a supervisor and representative of the employer.   

Icon Parking takes this matter very seriously, and, to reiterate, every supervisor has been directed that in their capacity as a representative of the employer they are to remain neutral with respect to the Teamsters internal election. The supervisors were specifically instructed that as representatives of the employer they are to refrain from interfering in any way in the Teamster election, including, but not limited to in any way suggesting that the employer and/or Local 272 have a preferred candidate in the election.

Our investigator requested that Icon produce Lozano for a phone interview; Lozano was not produced.  However, we note that the position statement submitted by Icon’s counsel did not deny that Lozano made the statements attributed to him; the submission instead declared that any such statements were not authorized by the employer.

            Our investigator also interviewed Local Union 272 officials.  The local union’s principal officer, Matthew Bruccoleri, denied the protest’s allegation.  He told our investigator that the current leadership of the local union has held office since 1994, is very familiar with the Rules’ requirements, and that none of those leaders would “even think about” trying to influence how members vote. 

At our investigator’s request, Bruccoleri provided the names and contact information for the business agents who service the Icon bargaining unit.  Business agent Joe Mattesi denied that he spoke to Icon managers or the local union members who work there about the election.  He stated he had no knowledge that anyone at Icon spoke to workers about the election or suggested or directed them for whom to vote.  Mattesi said, “I would never put myself in that position – I’ve been around too long for that.” 

Business agent Fred Alston said he was “totally surprised” to hear the allegations.  He said, “We can’t even get them [the members employed by Icon] to come to a union meeting, so why would they care that much about who gets elected?”  Alston said he had not interfered with or attempted to influence member voting nor would he do so.  Further, he stated that Icon is a regimented, by-the-book employer, and he did not believe Icon would do as the protest alleged.

Business agent Jose Rojas told our investigator that members employed at Icon have shown little interest in the union, with at most one or two employees ever attending union meetings despite the 500 members who work there.  Rojas denied speaking with anyone at Icon, management or member, about the election.

            Business agent Eddie Rivera denied any contact at all, for any reason, with Icon management or the union members who work there, and also found it surprising to hear that a supervisor at Icon would get involved in a Teamsters election.  Rivera said he and the other agents and local union officials have “been here since 1994, and know what we’re doing.  After 20 years of being in office, we did everything legitimately – why would we start something like this now?”

Analysis

            Employer support of a candidate is prohibited under the Rules.  An instruction from a manager to his subordinates that the employer supports a particular candidate constitutes an endorsement of that candidate.  Such an endorsement is a thing of value that the employer is prohibited from contributing to the candidate.

            Similarly, union support of a candidate is also prohibited.  Where a local union official or representative requests or arranges for an employer endorsement of a candidate – a request or arrangement that is based on the bargaining relationship between union and employer – the resulting employer endorsement is the result of impermissible local union action.

            Here, we find that Lozano violated the Rules by giving instructions to several members of Local Union 272 to vote their ballots for Hoffa-Hall and to return the voted ballots promptly.  We make this finding based on the evidence provided by members who spoke with our investigators.  This finding is reinforced by the position statement of Icon’s counsel, which denies unequivocally that Icon had an arrangement with the local union to endorse Hoffa-Hall but does not deny that Lozano made the impermissible statements to members.

            We do not find that Local Union 272 officials or employees participated in, instigated or sought Lozano’s impermissible conduct because we find no evidence to support the allegation.

            Accordingly, we GRANT the protest with respect to Icon’s manager, Lozano, and DENY it with respect to Local Union 272.

Remedy

When the Election Supervisor determines that the Rules have been violated, he “may take whatever remedial action is deemed appropriate.” Article XIII, Section 4. In fashioning the appropriate remedy, the Election Supervisor views the nature and seriousness of the violation as well as its potential for interfering with the election process.

We order Lozano to cease and desist from instructing or influencing members of the IBT as to which candidates to support in the pending election.

            We order Local Union 272 to mail the notice attached to this decision to all of its members who are employed by Icon Parking Systems.  Even though we have not found any Rules violation on its part, we give this direction to the local union because it has an institutional interest in enforcement of the Rules and informing its members that employer endorsement of candidates has no place in the pending election.  The notice shall be printed on one side of a single sheet in English and on the other side in Spanish.  The mailing shall be completed within one day of issuance of this decision and an affidavit of compliance supplied to OES within one day thereafter.  We order this mailing in lieu of a notice posting because we conclude that mailing to some 500 members is more expeditious than posting a notice at more than 240 worksites.

            Further, we order the local union to bill Hoffa-Hall 2011 for the printing and mailing expense associated with the notice within two days of completion of the mailing, and we order Hoffa-Hall 2011 to pay the bill within two days of receipt.  We order this remedy to rectify the benefit Hoffa-Hall received because of Lozano’s impermissible conduct.

            We do not order the local union or Hoffa-Hall 2011 to fund remedial mailings of campaign literature for the Pope or Gegare-Sheard campaigns because, on the evidence presented, we cannot conclude that the violation permeated all or a significant portion of the Icon bargaining unit.

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.