Protest Decisions

October 25, 1995

VIA UPS OVERNIGHT

Abel Garcia, Jr.

October 25, 1995

Page 1

Abel Garcia, Jr.

October 25, 1995

Page 1

Re:  Election Office Case No. P-176-LU186-CLA

Gentlepersons:

A pre-election protest was filed pursuant to Article XIV, Section 2(b) of the Rules for the 1995-1996 IBT International Union Delegate and Officer Election (“Rules”), by

Abel Garcia, Jr., a member of Local Union 186 and a candidate for delegate.  He alleges that Scott Dennison, secretary-treasurer of Local Union 186, improperly posted and distributed several copies of the nomination results notices required under Article II, Section 6(a) of the Rules.  Mr. Garcia asserts that the notices inaccurately suggest that he is a member of a non-incumbent group of candidates.  The protester attached a copy of the nomination results notice.  This notice was printed on local union letterhead containing the names of the current local union officers.

The protested notice was posted in late August 1995.  The protest was signed on September 27, 1995.  A mail ballot was conducted in Local Union 186.  The ballots were mailed on September 21, 1995 and were counted on October 12, 1995.  While this protest was filed before the election was held, the Election Officer exercised her discretion under

Article XIV, Section 2(f)(2) and deferred making a determination until after the election, treating the matter as a post-election protest. 

The Election Office records reflect the following total votes for each candidate in the election of two delegates and one alternate delegate:

Abel Garcia, Jr.

October 25, 1995

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Delegate Candidates:                                                        Votes:

Dennison                                                                      372

Hernandez                                                                      346

Garcia                                                                                    138

Mora                                                                                    97

Alternate Delegate Candidates:                            Votes:

Elder                                                                                    393

Zuniga                                                                      77

An investigation was conducted by Associate Regional Coordinator Glenn Rothner.    

Prior to the posting of the nomination results,  Mr. Rothner drafted and transmitted to Local Union 186 a sample of a proper nomination results notice for their specific use. 

Mr. Rothner’s draft plainly and properly displayed the names of the various individual candidates as unaffiliated, either with the incumbent slate or with other independent candi-dates.  Local Union 186 was specifically cautioned against the use of standard letterhead for these notices unless the names of the officers were removed from the format.  Mr. Dennison was the officer responsible for assuring that the notices properly displayed the required information.  The duty to produce the notices was assigned to Malena Samaniego, the local union’s office manager.  Local Union 186 failed to comply with either of these instructions.

All of the notices were posted in late August on union letterhead, with the names of officers on the letterhead, and contained the following information:

NOMINATION RESULTS  FOR CONVENTION

DELEGATES AND ALTERNATES

Results of the Teamster Local 186 Convention Delegate and Alternate meeting held on August 22, 1995 for two (2) delegates and one (1) alternate are as follows:

Abel Garcia, Jr.

October 25, 1995

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DELEGATES

“The Dennison Team” (Slate)

Scott Dennison and Rogelio Hernandez

Alternate: Bill Elder

David Mora and Abel Garcia

Alternate: Sara Zuniga

The nomination results notice set forth above was posted in every location identified by Local Union 186 as a bulletin board site, as required by Article II, Section 6(b) of the Rules.  At the time of the original posting, Mr. Dennison was out of town.  Ms. Samaniego misunder-stood Mr. Rothner’s warning and his instruction to remove the names. 

On the evening of September 27 and the morning of September 28, 1995,

Mr. Dennison ordered the posting of an amended notice.  The new notice was not printed on local union letterhead displaying the names of the incumbent officers.  No amended nomi-nation results notice was ever issued separating Mr. Garcia’s name from that of David Mora, with whom Mr. Garcia has no political affiliation.  Similarly, Local Union 186 issued no corrective document specifically identifying the protester, Mr. Mora or Ms. Zuniga as inde-pendent candidates.  However, the ballots--as mailed and distributed on September 21--did make this distinction.  The status of Mr. Garcia, Mr. Mora and Ms. Zuniga as independent candidates for delegate or alternate delegate was clearly described.

The Rules, at Article II, Section 4(g), provide that “every posting by the Union on Union bulletin boards required by this or any other provision of the Rules shall be on Union letterhead that has no names of Union officers, business agents, staff or the like.”  Local Union 186's violation of this particular provision of the Rules, at least for the period of time prior to September 28, 1995, is beyond dispute.

The Election Officer further concludes that Local Union 186 violated the Rules when it failed to reasonably identify the protester, Mr. Mora and Ms. Zuniga as individual candidates.  Article II, Section 6(a) mandates that all nomination results notices list “all nominated candi-dates by name” and also “by slate affiliation, if known at the time.” 

Article XIV, Section 3(b) of the Rules provides:

(b) Such protests [post-election] shall only be considered and remedied if the alleged violation may have affected the outcome of the election, except that any timely protest alleging improper threats, coercion, intimidation, acts of violence or retaliation for exercising any right protected by the Rules shall be considered and remedied without regard to whether the alleged violation affected the outcome of an election.

Abel Garcia, Jr.

October 25, 1995

Page 1

Article XIV, Section 3(b) clearly provides that a violation of the Rules is not, by itself, sufficient grounds to support the application of a post-election remedy.  There must also be some reasonable relationship between the effect of the violation and the outcome of the election.  Wirtz v. Local Union 410, 366 F.2d 438 (2nd Cir. 1966).  In order to determine whether such a result is present, the Election Officer determines whether (1) the mathematical consequences of the violation were sufficient in scope to influence the outcome of the election or (2) whether there is any causal connection between the violation and the final result.  Dole v. Mailhandlers, Local 317, 132 LRRM 2299 (D.C.M.D. Ala. 1989).  For the reasons set forth below, the Election Officer determines that these particular violations require no post-election remedy.

The violation of Article II, Section 4(g) involving the display of the incumbent officer’s names on the nomination results notice was corrected by a process begun on the evening of September 27, 1995 and completed the next day.  The ballots, which complied fully with all the requirements of the Rules, were mailed September 21, 1995, only six days prior to the date of the first effort toward correction.  The membership must be presumed to be aware of the names of their local union officers and their various positions within the local union.  The ballot clearly demonstrated that the incumbent slate was opposed by Mr. Garcia, Mr. Mora and Ms. Zuniga as independents.  The evidence therefore fails to demonstrate that there is any reasonable possibility that these relatively minor violations affected the outcome of the election.

The Election Officer’s decision in this regard is preceded by Bryan, Election Officer Case No. Post-66-LU988-SOU (April 30, 1991).  In Bryan, the Election Officer reviewed analogous issues which arose subsequent to a decision in an earlier pre-election case, Graef, Election Officer Case No. P-559-LU988-SOU (March 8, 1991).  In Graef, Local Union 988 was similarly held to have violated the Rules when it posted nomination results on union letterhead exhibiting the names of the current union officers.  Like Local Union 186, Local Union 988 was also found to have violated the Rules for failing to properly distinguish between candidates affiliated with a slate and independent candidates.[1]  Neither violation was considered sufficient to affect the outcome of the election when considered in Bryan.

Accordingly, the 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.  Requests for a hearing shall be made in writing and shall be served on:

Abel Garcia, Jr.

October 25, 1995

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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

Glenn Rothner, Associate Regional Coordinator