OFFICE OF THE ELECTION SUPERVISOR
for the
INTERNATIONAL BROTHERHOOD OF TEAMSTERS
IN RE: SAM BUCALO, ) Protest Decision 2015 ESD 43
) Issued: October 19, 2015
Protestor. ) OES Case No. P-053-092915-ME
__________________________________)
Sam Bucalo, member and secretary-treasurer of Local Union 100, filed a pre-election protest pursuant to Article XIII, Section 2(b) of the Rules for the 2015-2016 IBT International Union Delegate and Officer Election (“Rules”). The protest alleged that a majority of the executive board of Local Union 100 retaliated against Bucalo for activity protected by the Rules by filing internal union charges against him.
Election Supervisor representative Dan Walsh investigated this protest.
Findings of Fact
As detailed in Hoffa-Hall 2016, 2015 ESD 28 (August 28, 2015), protestor Bucalo published and distributed to the membership of Local Union 100 as campaign literature a self-financed “member newsletter” that presented information and personal views on events within the local union, promoted Bucalo’s candidacy for re-election as local union secretary-treasurer, and endorsed the Teamsters United slate of candidates for International office. The newsletter was also published on a personal Facebook profile. Our decision resolved two protests filed against Bucalo, the first by Hoffa-Hall 2016 on July 13, 2015, the second by Local Union 100 member Jimmy Meyer on July 17, 2015.
On July 22, 2015, before our decision issued, six members of the Local Union 100 executive board filed internal union charges against Bucalo arising from the member newsletter and Facebook posting.
Bucalo contends in the current protest that the charges filed against him constitute retaliation prohibited by the Rules. Further, he contends that the joint council’s assertion of jurisdiction over the charges is not permitted by the Rules, as it is in derogation of the Election Supervisor’s authority to resolve protests that involve election-related conduct.
The charges brought against Bucalo are summarized as follows:
Charge 1: that Bucalo used a format and template for his personal newsletter that was similar in form to previously published official newsletters of the local union, conduct said to violate the Rules and to constitute conversion of local union property.
Charge 2: that Bucalo’s newsletter includes comments and personal attacks on officers and agents of the local union and the IBT and, because the format was similar to previously published official newsletters of the local union, gave the impression that the comments and attacks were approved by the local union.
Charge 3: that Bucalo published information in his personal newsletter that he had access to only because he is local union secretary-treasurer, and the use of such information misused his position and violated his oath of office.
Charge 4: that Bucalo’s personal newsletter contained information and misstatements about votes and discussions of the local union executive board that are not contained in official minutes, the use of which constituted misuse of his position and a violation of his oath of office.
Charge 5: that Bucalo’s personal newsletter included an endorsement of candidates for International office, in violation of the Rules and the IBT constitution.
Charge 6: that Bucalo’s personal newsletter falsely stated that officers and business agents of the local union were subject to criminal charges when in fact they were subject to internal charges Bucalo had filed against them, the false statement said to harm the subject officers and business agents and bring reproach on the union.
By letter dated September 24, 2015, Joint Council 26 reviewed the charges, dismissing some outright and limiting remainder, and setting a hearing on what remained. The hearing date set is October 22, 2015.
With respect to Charge 1, the joint council dismissed it in its entirety. The joint council noted that the allegation of Charge 1 was very similar to that raised in the election protests resolved in our decision. Accordingly, “because of the close connection between this allegation and the election protest, and because all local unions and this Joint Council must be mindful not to take action that could be perceived as interfering with the conduct of the IBT delegate and officer elections, Joint Council 26 dismisses this allegation based upon its belief that the question is not within its jurisdiction, but that it is properly within the jurisdiction of the Election Supervisor.”
With respect to Charge 2, the joint council concluded that the LMRDA “does appear to shield [Bucalo] from being punished by the Joint Council for the expression of [alleged slanderous comments] to the membership. Therefore, Joint Council 26 declines to exercise jurisdiction over this allegation to the extent the comments were made to the membership of the union.”
However, the joint council asserted jurisdiction over the personal newsletter as published online, stating that “[t]he LMRDA permits labor organizations to adopt and enforce reasonable rules as to the responsibility of every member to the organization as an institution and to his refraining from conduct that would interfere with the union’s performance of its legal or contractual obligations. The charging parties could demonstrate that the dissemination of the allegedly slanderous information to non-members, including potentially employers with whom Local 100 has a contractual relationship, violates the provisions of the IBT Constitution and Local 100 Bylaws cited. Thus, Joint Council 26 sets this allegation for a hearing, at which evidence will be limited to the extent of the dissemination of this newsletter to non-members, and any evidence relating to the harm that was caused or that may be caused to Local 100 as an institution or to Local 100 in the performance of its legal or contractual obligations.”
With respect to Charge 3 and Bucalo’s use of information available to him only because of his office, the joint council noted that “certain information contained within the newsletter is protected speech under the LMRDA, and that other information is not protected, particularly based upon the assertion that the newsletter was posted online. Joint Council 26 will set this allegation for a hearing, but notes that in rendering any decision it will be required to consider the applicability of the LMRDA’s free speech protections.”
With respect to Charge 4 and Bucalo’s alleged misstatements of vote counts and discussions at local union executive board meetings, the joint council stated that “it may be that certain information contained within the newsletter is protected speech under the LMRDA, and that other information is not protected, particularly based upon the assertion that the newsletter was posted online. Joint Council 26 will set this allegation for a hearing, but notes that in rendering any decision it will be required to consider the applicability of the LMRDA’s free speech protections.”
On Charge 5 and Bucalo’s endorsement of candidates in the International officer election, the joint council “dismisse[d] this allegation based upon its belief that the question presented is not within its jurisdiction, but that it is properly within the jurisdiction of the Election Supervisor.”
On Charge 6 and the contention that Bucalo’s personal newsletter falsely stated that certain officers and business agents are subject to criminal charges, the joint council “decline[d] to exercise jurisdiction over this allegation to the extent of its dissemination to Teamsters’ membership on the basis of the free speech protections contained within the [LMRDA]. However, also for the reasons discussed in connection with Allegation No. 2 above, Joint Council 26 sets this matter for a hearing at which evidence will be limited to the extent of the dissemination of this newsletter to non-members, and any evidence relating to the harm that was caused or that may be caused to Local 100 as an institution or to Local 100 in the performance of its legal or contractual obligations.”
Bucalo’s protest alleged the internal union charges against him are a “re-trial of a protest” the Election Supervisor has already decided. It requests that the trial on the charges set for October 22, 2015 be cancelled, among other requests for relief.
Analysis
Article VII, Section 12(a) describes activity protected by the Rules as follows:
All Union members retain the right to participate in campaign activities, including the right to run for office, to support or oppose any candidate, to aid or campaign for any candidate, and to make personal campaign contributions.
Article VII, Section 12(g) states that:
Retaliation or threat of retaliation by the International Union, any subordinate body, any member of the IBT, any employer or other person or entity against a Union member, officer or employee for exercising any right guaranteed by this or any other Article of the Rules is prohibited.
To establish a violation of this section, “the evidence must demonstrate that 1) the alleged victim engaged in activity protected by the Rules, 2) the charged party took adverse action against the alleged victim, and 3) the protected activity was a motivating factor in the adverse action.” Bundrant, 2005 ESD 19 at 10 (October 25, 2005), aff’d, 05 EAM 4 (November 15, 2005) (quoting Cooper, 2005 ESD 8 (September 2, 2005).
Bucalo has not demonstrated that the filing of these charges alone constitute adverse action in retaliation for his having engaged protected activity. In terms of process, rather than resulting in adverse action, the joint council has already ruled out of order the allegations and aspects of allegations against Bucalo that seek to punish him for free speech to the membership. Whether, in connection with the remaining charges, Bucalo will suffer any adverse action within the meaning of the Rules and our precedents depends, first,on the decision of the joint council trial panel (which has yet to hear the case against Bucalo), and, second, if adverse action is taken, whether that action is shown to be motivated by Bucalo’s Rules-protected activity. Whether the conduct proven at trial that serves as a basis for any adverse action is protected by the Rules cannot be ascertained until after the trial and decision.
Accordingly, we DENY this protest but do so without prejudice to its refiling. If the joint council trial panel renders a decision adverse to Bucalo’s interests and Bucalo contends that the decision as rendered constitutes retaliation or some other violation of the Rules, he may protest that decision to us, in addition to exercising any other remedy available to him.
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:
Kathleen A. Roberts
Election Appeals Master
JAMS
620 Eighth Avenue, 34th floor
New York, NY 10018
kroberts@jamsadr.com
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, 1050 17th Street, N.W., Suite 375, Washington, D.C. 20036, all within the time prescribed above. A copy of the protest must accompany the request for hearing.
Richard W. Mark
Election Supervisor
cc: Kathleen A. Roberts
2015 ESD 43
DISTRIBUTION LIST (BY EMAIL UNLESS OTHERWISE SPECIFIED):
Bradley T. Raymond, General Counsel
International Brotherhood of Teamsters
25 Louisiana Avenue, NW
Washington, DC 20001
braymond@teamster.org
David J. Hoffa
1701 K Street NW, Ste 350
Washington DC 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
Teamsters United
315 Flatbush Avenue, #501
Brooklyn, NY 11217
info@teamstersunited.org
Louie Nikolaidis
350 West 31st Street, Suite 40
New York, NY 10001
lnikolaidis@lcnlaw.com
Julian Gonzalez
350 West 31st Street, Suite 40
New York, NY 10001
jgonzalez@lcnlaw.com
David O’Brien Suetholz
515 Park Avenue
Louisville, KY 45202
dave@unionsidelawyers.com
Fred Zuckerman
P.O. Box 9493
Louisville, KY 40209
fredzuckerman@aol.com
Sam Bucalo
6158 Kingoak Drive
Cincinnati, OH 45248
sammo1245@aol.com
Teamsters Local Union 100
2100 Oak Drive
Cincinnati, OH 45241
sarahm@teamsterslocal100.com
Teamsters Joint Council 26
4632 Paddock Road
Cincinnati, OH 45229
Fax: (513) 242-8104
Dan Walsh
950 Duxbury Court
Cincinnati, OH 45255
djw4947@gmail.com
John Pegula
1434 Greendale Dr.
Pittsburgh, PA 15239
jpegula@ibtvote.org
Jeffrey Ellison
214 S. Main Street, Suite 210
Ann Arbor, MI 48104
EllisonEsq@aol.com