Protest Decisions

OFFICE OF THE ELECTION SUPERVISOR

for the

INTERNATIONAL BROTHERHOOD OF TEAMSTERS

IN RE: JEFFERY SCAGLIA &               )           Protest Decision 2016 ESD 280

    CHRISTOPHER CAMELIO,               )           Issued: August 12, 2016

            Protestors.                                        )           OES Case Nos. P-328-072016-NE,

                                                           )           P-329-072216-NE, P-331-072416-NE,

                                                           )           P-332-072416-NE, P-334-072716-NE,

                                                           )           P-335-072716-NE, & P-336-072716-NE      

____________________________________)                      

Jeffery Scaglia and Christopher Camelio, members and elected delegates of Local Union 118, filed seven pre-election protests pursuant to Article XIII, Section 2(b) of the Rules for the 2015-2016 IBT International Union Delegate and Officer Election (“Rules”).  The protests alleged that the local union failed to comply with the Election Supervisor’s orders that remedial notices be posted and maintained on all worksite bulletin boards under the local union’s jurisdiction.

            Election Supervisor representative Peter Marks investigated these protests, which were consolidated for decision.

            Notice postings from the Office of the Election Supervisor (“OES”) are intended to inform the membership about events in the International Officer election, including results of protest rulings.  OES depends on the postings being made but does not have the resources to carry out and inspect every posting required at every union bulletin board in the United Stated, Puerto Rico, and Canada.  For that reason, OES must rely on local union officers and personnel to supervise and perform required postings, and to confirm when postings are complete.  The certifications of posting are important to the integrity of the election process.  These protests concern notice postings and the accuracy of the certifications OES relied on as proof of execution.  Investigation revealed that several of the certifications, made under penalty of perjury, were not accurate.  We write at some length to emphasize that the certifications are significant and must be treated seriously as the sworn statements that they are. 

Findings of Fact and Analysis

In Local Union 118 Delegates and Alternate Delegates, 2016 ESD 256 (June 24, 2016), appeal withdrawn, 2016 EAM 27 (June 28, 2016), the Election Supervisor held that Local Union 118 violated the Rules by failing properly to arrange travel for the elected delegates and alternate delegates to the IBT convention and by imposing restrictions on the delegation that were not permitted by the Rules or our Advisory Regarding Payment of Expenses for Convention Delegates and Alternate Delegates.  Among other remedies, the Election Supervisor ordered that the local union post a remedial notice on all worksite bulletin boards under the local union’s jurisdiction and maintain that posting through July 31, 2016.  Christopher Toole, secretary-treasurer of Local Union 118, submitted a signed declaration, made under penalty of perjury and dated June 27, 2016, that, “[p]ursuant to [his] direction” the notice “was posted on each Local Union bulletin board” and the local union website as of that date.

In Toole & Scaglia, 2016 ESD 272 (July 15, 2016), aff’d as modified, 2016 EAM 28 (August 5, 2016), the Election Supervisor found that mailings not permitted by the Rules were carried out after the delegates election and that the mailing by local union principal officer Paul Markwitz was performed using union resources.  Among other remedies, the Election Supervisor ordered that the local union post a remedial notice on all worksite bulletin boards under the local union’s jurisdiction and maintain that posting through September 2, 2016.  On August 10, 2016, Toole submitted a signed declaration dated July 20, 2016, made under penalty of perjury, stating that, “[p]ursuant to [his] direction” the notice “was posted on each Local Union bulletin board” and the local union website as of that date.

Protests P-328, P-329, and P-336 (the earliest of which was filed on July 20) alleged that the posting required by our decision in ESD 256 was either not made at all or was not maintained through the required posting period at UPS-Rochester, KB Graphics, and Genesee Brewing, respectively.  Protests P-331, P-332, P-334, and P-335 alleged that the posting required by our decision in ESD 272 was either not made at all or was not maintained through the posting period at Wegman’s Grocery, Wegman’s Produce, Greece Central School District, and Genesee Brewing, respectively.

Photos of the bulletin boards at UPS-Rochester that were attached to the protest showed the notice required by ESD 256 was not posted.  Secretary-treasurer Toole, who previously signed the declaration under penalty of perjury that the notice indeed had been posted there, stated the following in response to the protest:

Both notices [as required by ESD 256 and ESD 272] were sent to the Steward who has been out on worker’s compensation and then vacation.  Both notices were also sent to an alternate Steward.  Both notices were taped to the outside of the board but were taken down on an almost daily basis.  This can be seen on the picture in the protest.  I re-posted the notices and asked the Company not to take them down.  The UPS collective bargaining agreement does not allow notices without Union letterhead on the bulletin boards, they were not aware the ESD’s must be posted.

Toole’s explanation contradicts his signed declaration, which stated directly that the ESD 256 notice “was posted” on the UPS-Rochester board (and all other boards under the local union’s jurisdiction) as of June 27, 2016.  His revised statement given to our investigator was that the steward working in that building was responsible for the posting but was not at work for a period of time, that the notice was also sent to the alternate steward there for posting, and that the notice was not posted on the board but rather was taped to the outside of the glass cover for the board, from which it “was removed on almost a daily basis.”  Toole presented no competent evidence that an alternate steward posted the notice to the board before the date he claimed personally to have “re-posted” it, a date he did not specify.  Pointing to a steward as the responsible individual even conflicts with information previously provided to OES:  the bulletin board location lists submitted with and incorporated into Local Union 118’s local union election plan identified Toole as the agent responsible for posting on the UPS-Rochester bulletin board, and that plan submission was itself certified as true and accurate by Toole.  Toole further attempted to shift blame for the lack of posting by insinuating that UPS had removed the notice because it did not appear on local union letterhead.  This explanation is dubious, however, because a credit union advertisement for loans with “Great Rates! [on] Cars & Trucks” was posted to the board even though it was not printed on local union letterhead; the credit union notice apparently had been posted for more than two years, as it indicated that the “Special ends May 31, 2014.”  Accordingly, we find that Toole’s declaration stating that the notice was posted on UPS-Rochester board on June 27, 2016 was false; we find further that the notice was not posted to that board for a significant period after June 27; we find finally that Toole himself was listed by Local Union 118 as the agent responsible for posting notices on the UPS-Rochester board, according to the local union election plan he submitted and certified as true in August 2015, and he – not anyone else – was the person who failed to make the posting timely.  Accordingly, we GRANT protest P-328 with respect to the failure to post the notice required by ESD 256 on the UPS-Rochester board.

Protest P-329 (filed July 22) alleged a failure to post the notice required by ESD 256 at KB Graphics.  A photo submitted with the protest showed the bulletin board lacked the notice required by ESD 256.  Toole’s response to the protest stated the following:

There are two employees there; neither will accept the responsibility for posting notices.  The Employer receives any communications and hands them out to their employees.  Business Agent Jeff Sargent went to the Company after receiving this protest with both ESD’s.  The employer refused to post either of them stating he wasn’t going to get involved with our politics.  That is disconcerting because it raises the question of why he knew the notices were political in nature as the Agent never disclosed what they were for.  After threatening to turn them into the Office of the Election Supervisor they agreed to post them.  Agent Sargent was not allowed to take a picture.

Toole’s explanation contradicts his declaration made under penalty of perjury on June 27 that the notice “was posted” on all union bulletin boards as of that date, including KB Graphics.  His submission in response to this protest indicates that the notice at that location was posted for the first time after Protest P-329 was filed on July 22.  His submission also attempts to shift blame to the employer for failure to post the notice, when the local union election plan places responsibility for posting at KB Graphics on business agent Jeff Sargent.  Accordingly, we GRANT protest P-329 with respect to the failure to post the notice required by ESD 256 on the KB Graphics board.

The final protest alleging failure to post or maintain the remedial notice required by ESD 256 was protest P-336, which alleged that the local union did not post the notice at Genesee Brewing.  The evidence submitted by the protestor to substantiate this allegation was a photo too blurry to prove the claim.  Local Union president Paul Markwitz told our investigator that he personally posted the notice timely, that he rechecked it on July 18 when posting the notice required by ESD 272 and found it still in place, and that he instructed the business agent responsible for servicing the membership at this local union to check the board to insure it remained posted for the period required.  On this evidence, we DENY protest P-336.

Four protests alleged that the notice required by ESD 272 was not posted or maintained on specific union bulletin boards.  Protests P-331 and P-332 alleged that the notice was not posted at Wegman’s Grocery and Wegman’s Produce, respectively.  Photographic evidence showed that, as of July 23, 2016, the notice was not posted on either bulletin board.  Toole contradicted these photos by writing our investigator that the notice indeed was posted at both locations.  He explained the contradiction by asserting that Christopher Camelio, one of the protestors here, and two of Camelio’s slate members, Michael Figliotti and Anthony Wells, are employed at Wegman’s, previously were stewards at that employer, and allegedly retain keys to the boards in question, insinuating that the absence of the ESD 272 notice from those boards is because one or more of them removed it.  We reject this argument as speculative and unsupported by any evidence.  Moreover, the notice criticized the local union administration and Camelio, Figliotti and Wells would benefit by its posting, strongly suggesting that the trio would favor posting, not remove it.  Accordingly, we GRANT protests P-331 and P-332, finding that Toole’s declaration that the notices were posted on Wegman’s Grocery and Produce boards as of July 20, 2016 was false. 

The remaining two protests, P-334 and P-335, alleged that the notice required by ESD 272 was not posted at Greece Central School District and Genesee Brewery.  A photo showed that the notice was not on the board at Greece Central; Toole stated the notice was posted next to the board (out of the photo) rather than on it so as to not cover the seniority list.  While we find there was ample room to post the notice on the board, we DENY protest P-334 for insufficient evidence.  We reach the same conclusion on protest P-335, finding that Markwitz has successfully rebutted the blurry photo submitted on that protest; accordingly, we DENY protest P-335.

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).

To remedy the failure to post that we find here, we order Local Union 118 to mail the notice required by ESD 256 to all members employed by UPS-Rochester and KB Graphics.  We further order Local Union 118 to mail the notice required by ESD 272 to all members employed by Wegman’s in the Grocery and Produce departments.  The local union shall complete these mailings by first class mail no later than Thursday, August 18, 2016.  The local union shall submit to OES a declaration of compliance made under penalty of perjury no later than Monday, August 22, 2016.

To remedy the false declarations of posting submitted by Toole, we order Toole to cease and desist from making false declarations to the Office of the Election Supervisor.  To emphasize the importance of this requirement, we order Toole to pay a fine to OES in the amount of $1,000.00.  This fine is strictly remedial in nature and is intended to stress the importance of submitting truthful declarations of posting and to deter further violations.  Toole’s fine must be remitted to the Office of Election Supervisor no later than Thursday, August 18, 2016.  The fine must be paid from Toole’s personal funds, and he must certify that he has not received and will not accept contributions from any source to assist him in paying the fine or reimburse him for the fine imposed.  Any further false statement by Toole to the OES will result in his referral to the Independent Disciplinary Officer for action under the Final Order.

Finally, we order Local Union 118 to post on all worksite bulletin boards under its jurisdiction the notice attached to this decision.  The notice posting shall be completed by Wednesday, August 17, 2016 and shall remain in place through and including Friday, September 30, 2016.  Local Union 118 shall notify us of its compliance with this remedy by declaration under penalty of perjury no later than Friday, August 19, 2016.

A remedial order of the Election Supervisor takes immediate effect unless stayed.

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

            2016 ESD 280

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 118

Paul Markwitz, President

130 Metro Park

Rochester, NY 14623

pmarkwitz@teamsterslocal118.org

Michael J. Maynard, Vice-President

mmaynard@teamsterslocal118.org

Chris Toole, Secretary-Treasurer

ctoole@teamsterslocal118.org

Al Hondorf, Recording Secretary

ahondorf@teamsterslocal118.org

Jeff Sargent, Trustee

jsargent@teasmterslocal118.org

Tim Johnson, Trustee

tjohnson@teamsterslocal118.org

Larry Thibault, Trustee

130 Metro Park

Rochester, NY 14623

Chris Camelio

newyorkcoin@gmail.com

Anthony Wells

awtrain64@aol.com

Gary Rindfleisch

g_rindfleisch@yahoo.com

Jeff Scaglia

jscagli1@rochester.rr.com

Ron Delcour

rdelcour2@gmail.com

Michael Figliotti

michaelfigliotti@gmail.com

David Baldwin

davidsb79@gmail.com

Peter Marks

116 Nagle St.

Harrisburg, PA 17104

pmarks@ibtvote.org

Jeffrey Ellison

214 S. Main Street, Suite 212

Ann Arbor, MI 48104

EllisonEsq@aol.com