Protest Decisions

October 13, 1995

VIA UPS OVERNIGHT

Gene Giacumbo

October 13, 1995

Page 1

Gene Giacumbo

October 13, 1995

Page 1

Re:  Election Office Case No.  P-100-IBT-PNJ

Gentlepersons:

This protest was filed pursuant to Article XIV, Section 2(b) of the Rules of the 1995-96 IBT International Union Delegate and Officer Election (“Rules”) by IBT Vice President Gene Giacumbo.  The protest consists of four letters, all dated June 24, 1995, which allege that General President Ron Carey and partisan members of the General Executive Board (“GEB”)  have discriminated against him by:  (1) refusing nearly all of his travel requests for the past three years; (2) refusing his request for office space and/or staff; (3) refusing him reimbursement for union-related expenses; and (4) refusing him access to the TITAN system and to IBT offices between GEB meetings.

In its response, the IBT claims that the protest was untimely and failed to cite a specific violation of the Rules.   As to the merits, the IBT contends that Mr. Carey and the GEB’s treatment of Mr. Giacumbo is consistent with provisions of the IBT Constitution and was in no way motivated by an attempt to retaliate against Mr. Giacumbo because of his candidacy or any other conduct protected by the Rules or the Labor-Management Reporting and Disclosure Act, as amended  (“LMRDA”). 

The protest was investigated by Regional Coordinator Peter V. Marks, Sr.

Gene Giacumbo

October 13, 1995

Page 1

The IBT contends that Mr. Giacumbo did not file his complaint on a timely basis pursuant to Article XIV, Section 2(a) or (b) of the Rules.[1]  While the requirement to promptly file protests is an important part of the election process, the Election Officer has not treated time limits as an absolute jurisdictional requirement but, rather, as a prudential restriction.  The Election Officer finds here that it will better serve the underlying purposes of the Rules to resolve this protest on the merits.  The conduct underlying the alleged violation is ongoing.  Moreover, at this early stage of the election process, the Election Officer is cognizant of heightened concern over allegations of retaliation activity.  See Wsol, P-095-IBT-CHI (September 20, 1995), aff’d, 95 - Elec. App. - 17 (KC) (October 10, 1995).  Therefore, the Election Officer will exercise her authority to resolve this protest.

Further, Mr. Giacumbo’s protest does comply with the Rules as it states a “concise written statement of the alleged improper conduct.”  Article XIV, Section 2(d).  He alleges instances of retaliation against him by Mr. Carey and the GEB that place him “at a severe disadvantage with Mr. Carey’s partisans in the 1996 election.”

Article VIII, Section 11(f) of the Rules prohibits any retal­i­ation against any union member by the union or its agents for exercising any right guaranteed by the Rules.[2]  The Election Officer and the Election Appeals Master have interpreted the Rules to “prohibit any retaliation relating to the exercise of members’ rights under the Rules, including the right to run for union office.”  In re: Wsol, supra citing Parisi, Case No. P-1095-LU294-PGH (December 2, 1991).

Thus, if Mr. Giacumbo can demonstrate that he has been retaliated against because of his candidacy[3] or other conduct protected by the Rules, a violation will have been established.  The Election Officer finds, however, that Mr. Giacumbo has failed to demonstrate that his

Gene Giacumbo

October 13, 1995

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candidacy precipitated retaliatory conduct by the IBT.

To the contrary, the evidence presented demonstrates that the IBT’s treatment of Mr. Giacumbo has been consistent since December 1992 and has not changed since Mr. Giacumbo became a candidate.  The protester has proffered no evidence that he has been treated worse since announcing his candidacy.

Nor has the protester presented evidence suggesting that he has been retaliated against for engaging in other protected conduct under the Rules.  While it may or may not be true that Mr. Giacumbo has been denied access to the items and other benefits listed in his June 24 letter, such access is not protected by the Rules.  To the contrary, the use of union resources for campaign purposes is expressly prohibited by the Rules.  See Article XII, Section 1(b)(3).[4] 

For the foregoing reasons, this protest is DENIED.

Any interested party not satisfied with this determination  may request a hearing before the Election Appeals Master within one day of receipt of this letter.  The parties are  reminded that, absent extraordinary circumstances, no party may rely upon evidence that was not presented to the Office of the Election Officer in any such appeal.  Request for a hearing shall be made in writing and shall be served on :

Kenneth Conboy, Esq.

Latham & Watkins

885 Third Avenue, Suite 1000

New York, NY 10022

Fax (212) 751-4864

Copies of the request for hearing must be served on the parties listed above as well as upon the Election Officer, 400 North Capitol Street, Suite 855, Washington, D.C.  20001, Facsimile (202) 624-3525.  A copy of the protest must accompany the request for a hearing.

Sincerely,

Barbara Zack Quindel

Election Officer

cc:              Kenneth Conboy, Election Appeals Master

Peter V. Marks, Sr., Regional Coordinator