Protest Decisions

OFFICE OF THE ELECTION SUPERVISOR

for the

INTERNATIONAL BROTHERHOOD OF TEAMSTERS

IN RE: JEFFERY SCAGLIA &                )           Protest Decision 2016 ESD 312

            CHRIS TOOLE,                               )           Issued: October 26, 2016

                                                                        )           OES Case Nos. P-348-081916-NE &

            Protestors.                                          )                       P-352-082216-NE

____________________________________)                      

Jeffery Scaglia, member of Local Union 118, 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 the notice Local Union 118 was required to post on all union worksite bulletin boards pursuant to our decision in Scaglia & Camelio, 2016 ESD 280 (August 12, 2016) was not posted timely on the bulletin board at Greece Central School District.

Chris Toole, member and secretary-treasurer of Local Union 118, filed a pre-election protest alleging that Scaglia’s protest was frivolous and had no evidentiary support; further, the protest alleged that Scaglia had perjured himself by signing the protest in Case No. P-348-081916-NE.

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

Findings of Fact and Analysis

Our decision in Scaglia & Camelio, supra (hereinafter, “ESD 280”), found that Toole had failed to insure postings of remedial notices required by two previous decisions, Local Union 118 Delegates and Alternate Delegates, 2016 ESD 256 (June 24, 2016), and Toole & Scaglia, 2016 ESD 272 (July 15, 2016).  The decision in ESD 280 also found that Toole had submitted compliance declarations to OES that were materially false, in that they asserted under penalty of perjury that the notices had been duly posted on all union worksite boards when investigation showed that postings were not made at certain specified locations.  As remedy for the failure to post and the false assertion of full compliance with those remedies, we ordered, among other things, the posting of a remedial notice on all union worksite bulletin boards detailing the local union’s violations of the two previous remedial orders. 

Protestor Scaglia filed the protest in Case No. P-348-081916-NE asserting that the notice required by ESD 280 was not posted on the worksite bulletin board at Greece Central School District.  Scaglia is not employed at Greece Central.  His protest stated that he received a text message photo of the board at that employer and concluded from reviewing that photo that the required notice was not posted there.

The photo was apparently taken from close range, such that the full board did not fit in the camera’s frame.  The photo shows some nine notices, several from the local union and some from OES.  Despite the close range from which the photo was taken, only the print in large fonts is legible.  The 12-point language used in the three OES notices at issue is too small to read.  Nonetheless, shown at the left of the frame are three OES notices.  That they are OES notices can be determined from the distinctive shape of the letterhead and the style of the paragraphing used in the notices.  Close examination of the number of lines in each of the paragraphs printed in the three notices show that they correspond to the three notices at issue here.  Accordingly, we conclude that the photo attached to the protest confirms all three notices were posted on the Greece Central union worksite bulletin board.  In particular, the notice required by ESD 280 appears at the upper left of the frame and is cut off by the camera framing such that only a portion of the notice appears in the photo.

Accordingly, we DENY Scaglia’s protest.  The conclusion that all three notices were posted on the board is by no means obvious from the photo on which Scaglia based his protest.  Investigation showed that he believed that the notice had not been posted and attached the photo as substantiation for his belief.

Toole’s protest contends that Scaglia made a knowingly false statement by submitting the protest claiming the ESD 280 notice had not been posted at Greece Central.  Scaglia supported his protest with the complete evidence he believed substantiated his claim:  a photograph of the bulletin board.  His voluntary submission of supporting evidence that he invited us to scrutinize signaled his belief in the truth of the allegation made.  That our close examination of the photograph determined Scaglia’s submission failed to prove his allegation does not undercut his certification that he believed his allegation was true.  Rather, we find that the evidence he submitted voluntarily, and in the belief it supported the protest, failed to carry the protestor’s burden of proof.  Accordingly, we DENY Toole’s protest as well.

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 312

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