Protest Decisions

OFFICE OF THE ELECTION SUPERVISOR

for the

INTERNATIONAL BROTHERHOOD OF TEAMSTERS

IN RE: TEAMSTERS UNITED,               )           Protest Decision 2015 ESD 61

                                                                        )           Issued: December 19, 2015

            Protestor.                                           )           OES Case No. P-068-110315-NA     

____________________________________)

            Teamsters United 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 some 70 local unions violated the Rules by failing to respond to emailed and faxed requests that they produce worksite lists to the slate.  In Teamsters United, 2015 ESD 53 (corrected), November 24, 2015, we approved the withdrawal of the protest with respect to two local unions, deemed the protest resolved with respect to 67 local unions, and severed the protest for further investigation concerning Local Union 456.

            We address Local Union 456 now.  Election Supervisor representative Peter Marks investigated the protest concerning this local union.

Local Union 456 is located in Elmsford, NY.  It was placed in trusteeship on November 6, 2014 and remains in that status.  The trustee is Tom Gesualdi; Gesualdi otherwise serves as president of Local Union 282 in Lake Success, NY, some 30 miles away.  The assistant trustee is Bernadette Kelly; she otherwise serves as an International representative in the Greater New York City area.  Kelly also serves as campaign manager for the election of George Miranda as International vice president at large on the Hoffa-Hall 2016 slate.  In Timlin, 2015 ESD 40 (October 16, 2015), we found that Joint Council 16 violated the Rules by using a union publication, its Facebook page, to promote Miranda’s candidacy.  Kelly[1] was the individual whose act caused the joint council to violate the Rules.

With respect to Local Union 456’s worksite list, Teamsters United presented proof that it emailed a request for the list on September 18, 2015 to the email address listed on the IBT’s website for Local Union 456.  The same email address to which Teamsters United sent its worksite list request was subsequently listed by trustee Gesualdi as the address at which the local union could be contacted with respect to Local Union 456’s proposed local union election plan submitted to the Office of the Election Supervisor.  During the initial investigation of Protest P-068 in early November 2015, the email request of Teamsters United was forwarded to assistant trustee Kelly showing the email address of Local Union 456 to which the request had been submitted.  Kelly denied that the email request was received and asserted further that the email address to which the request was sent “is not connected to any staff people at this local union.”  Kelly maintained these positions even after she was informed that the same email address was used by the local union on the proposed local union election plan. 

            When Teamsters United received no response to its email request for the worksite list of Local Union 456, it faxed a request to the local union on October 2, 2015 at the fax number listed in the IBT roster of local unions.  The fax was directed to “Secretary Treasurer and/or Principal Officer.”  Teamsters United submitted a confirmation of its fax to our investigator, and it was in turn supplied to Kelly.  Kelly denied that “a fax to Robert Roberge,” the former president of Local Union 456, was received.[2]  In addition, she argued that the fax confirmation did not prove the fax was sent to or received by the local union (she stated by email that “the alleged ‘fax confirmation’ sent by the protestor’s counsel …, by the way, does not prove who it was sent to or whether it was actually received.”)  Kelly then repeated her assertion that the fax “was sent to someone who was removed from office over a year ago.” 

These assertions demonstrated that Kelly was not acting in good faith.  First, contrary to Kelly’s claim, the fax confirmation proved both that the fax was sent and that it was received.  Second, the confirmation showed that the fax was sent to “Secretary Treasurer and/or Principal Officer,” not to Robert Roberge or any other named individual who no longer held office at the local union.    

            Despite proof that the local union had been requested, first by email and subsequently by fax, to produce its worksite list to Teamsters United, Kelly steadfastly refused to acknowledge the veracity of the evidence and refused to produce the worksite list unless and until it was requested in a form she deemed legitimate.  We communicated to Teamsters United that Kelly was disputing that the fax was received, notwithstanding its confirmation of that fact.  Teamsters United responded by faxing the request again to Local Union 456 and then phoning the local union and speaking with an office clerical, who confirmed that the fax was received.  We accepted this as further proof that the fax number used previously, for which confirmation of successful faxing was already presented, was indeed the local union’s fax number.

            Only when evidence of this final, third request for the worksite list was presented to Kelly did she relent and authorize the local union staff to release the list to Teamsters United.  The list of some 235 worksites was mailed to Teamsters United on November 13, 2015.

            Article VII, Section 1(b) grants accredited candidates for International office “the right to a current list of all sites, with corresponding addresses, where any and all Union members work.  Requests for such worksite lists shall be made to the pertinent Local Union’s Secretary-Treasurer or principal officer in writing and shall be honored within five (5) days.” 

            The purpose of the Rules provision granting candidates access to listings of current worksites is to level the playing field between candidates.  The Rules recognize that face-to-face contact in employee parking lots is a highly effective means for disseminating information about the coming election and to develop rank-and-file interest in a given candidacy.  This tactic, however, requires knowledge of the worksite locations where potential voters may be found.  The failure of a local union to provide the worksite list in a timely fashion, despite repeated requests made to it, frustrates the opportunity of candidates and their supporters to campaign among members at locations where they work and denies the corresponding opportunity for members to hear the campaign messages of those candidates.  A local union’s failure to produce the requested list timely therefore undermines the democratic objectives of the Rules and the Consent Order.

            We reject as unbelievable Kelly’s claims that the email request was not received, that the email address to which the request was sent was incorrect, that the first fax request was not received, and that in any event the local union would not be required to respond to a worksite list request if the requesting party misidentified the secretary treasurer or principal officer of the union.

            In Viehland, 2006 ESD 271 (May 23, 2006), aff’d, 06 EAM 47 (June 21, 2006), we held that a local union officer substantially frustrated efforts of a slate of candidates to obtain a worksite list by producing a list he knew was highly inaccurate.  We concluded that producing such a list was equivalent to producing no list.  We wrote the following:

A principal officer of a local union bears a great responsibility to insure that the local union’s delegate and alternate delegate election is free and fair.  This is the case even though the principal officer often stands as a candidate in that election. 

            Here, Kelly acted not as a disinterested principal officer or assistant principal officer and more so as a partisan campaign manager by obstructing Teamster United’s request and denying its right to the worksite list it requested.

            Accordingly, we GRANT the protest with respect to Local Union 456 and Kelly.

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.  “The Election Supervisor’s discretion in fashioning an appropriate remedy is broad and is entitled to deference.”  Hailstone & Martinez, 10 EAM 7 (September 14, 2010).

            We order Local Union 456 and Bernadette Kelly to cease and desist from any further violations of the Rules.

We order Local Union 456 to post on all worksite bulletin boards under its jurisdiction the Notice to Members of Local Union 456 attached to this decision.  The notice must be posted within three (3) working days after issuance of this decision and must remain posted through and including January 31, 2016.  The notice must not be defaced or covered up during the period of its posting.  The purpose of the posting is to inform members of the requirements of the Rules and that the local union and Kelly violated those requirements.  Proof of compliance with the notice publication must be made to OES within three (3) days of completing it.

            Finally, this is the second instance in this election cycle where Bernadette Kelly has violated the Rules.  To impress upon her the seriousness of her obligations as a member and union official to comply with the Rules, we order her to pay a fine of $500.00 from her personal funds to the Office of the Election Supervisor within three (3) working days of the receipt of this decision.  The purpose of this fine is strictly remedial and is intended to encourage compliance with the Rules and to deter further violations.

            A decision of the Election Supervisor takes immediate effect unless stayed.  Lopez, 96 EAM 73 (February 13, 1996).

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, 34^th 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 17^th 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 61 

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 31^st Street, Suite 40

New York, NY 10001

lnikolaidis@lcnlaw.com

Julian Gonzalez

350 West 31^st 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

Teamsters Local Union 456

bfmcculloch@gmail.com

tgesualdi252@yahoo.com

Peter Marks

116 Nagle Street

Harrisburg, PA 17104

pmarks@ibtvote.org

Jeffrey Ellison

214 S. Main Street, Suite 210

Ann Arbor, MI 48104

EllisonEsq@aol.com