Protest Decisions

February 15, 1996

VIA UPS OVERNIGHT

Steve Clark, et al.

February 15, 1996

Page 1

Steve Clark

14032 Hyland Road

Surrey, BC V3W 2C4

David P. Kozak, Secretary-Treasurer

Teamsters Local Union 464

490 E. Broadway

Vancouver, BC V5T 1X3

Paul Devito

547 Mount View Avenue

Victoria, BC V9B 2B2

Steve Clark, et al.

February 15, 1996

Page 1

Re:              Election Office Case Nos.              P-311-LU464-CAN

            P-312-LU464-CAN

                   P-332-LU464-CAN

Gentlemen:             

Related pre-election protests were filed pursuant to Article XIV, Section 2(b), of the Rules for the 1995-1996 IBT International Union Delegate and Officer Election ("Rules").  On January 16, 1996, Steve Clark, a member of Local Union 464, filed a protest (P-311-LU464-CAN) against David P. Kozak, Secretary-Treasurer of Local Union 464.  Mr. Clark alleges in essence that Mr. Kozak persuaded another local union member, Paul Devito, to refuse to run as a delegate on Mr. Clark's slate in exchange for promises of favorable treatment within the local union.

On January 17, 1996, Mr. Kozak filed a protest (P-312-LU464-CAN), alleging that Messrs. Clark and Devito have knowingly filed frivolous and malicious preelection protests purely for political reasons.  As a remedy, he asks that their protests be dismissed and that they be ordered to post a public apology for making "slanderous and demeaning accusations" against him.

Steve Clark, et al.

February 15, 1996

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On January 19, 1996, Paul Devito, a member of Local Union 464, filed a protest

(P-332-LU464-CAN), alleging that Mr. Kozak made various offers to him to coerce him into changing his mind about running on the Steve Clark Unity Slate as a delegate.

Because these protests raise similar legal claims, they were consolidated by the Election Officer.

The protests were investigated by Regional Coordinator Gwen Randall.

The investigation revealed that Mr. Devito decided to run for election as a delegate to the International convention on behalf of his local union.  He sent a written nomination to the Regional Coordinator and, on January 10, 1996, telephoned the local union to see whether his delegate information sheet had arrived.  Mr. Devito spoke with Mr. Kozak and discussed whether any delegates intended to form slates following the nomination meeting scheduled for that day.  Mr. Devito said that he was not in favor of running on a slate.  Mr. Kozak replied that he had not yet decided, but that as far as he knew, there were no plans to form any slates.  Mr. Kozak asserts that this was the only issue discussed during the telephone conversation.

However, Mr. Devito says that Mr. Kozak also brought up a protest which had been filed over the local union officer elections.  According to Mr. Devito, Mr. Kozak asked him to help Mr. Kozak out by not appearing at the protest hearings.  Also according to Mr. Devito, Mr. Kozak asked Mr. Devito to speak to another potential witness in the local election dispute and persuade that witness not to attend the hearing as well.

The nomination meeting took place on January 10, 1996, under the supervision of the Election Officer Representative Ray Haynes.  After the nominations were concluded,

Mr. Haynes explained to the members the option of forming a slate.  After that explanation, Mr. Clark and a group of his supporters decided to form a slate and made an announcement to that effect at the meeting.  Mr. Kozak also decided that he should form a slate.  That evening, Mr. Kozak tried to telephone Mr. Devito, advising him that there had been a change in plans and that, in fact, slates had been formed.  Mr. Devito did not answer the phone, and Mr. Kozak left a message.

The following morning, Mr. Devito returned the call from Mr. Kozak, and Mr. Kozak told him about the developments concerning the formation of slates.  Mr. Devito was apparently unhappy about that development.  According to Mr. Devito, Mr. Kozak suggested that if he felt that way, Mr. DeVito could decide not to run for office and that if he chose not to run, Mr. Kozak would help him out.[1]  Mr. Kozak suggested that Mr. Devito telephone Stuart Barrow, another Local 464 officer, to talk about this. According to Mr. Kozak,

Mr. Devito stated that he had not yet heard from Mr. Clark, although it was expected that

Mr. Devito would be asked to join Mr. Clark's slate.

Steve Clark, et al.

February 15, 1996

Page 1

According to Mr. Barrow, Mr. Devito telephoned him at the office on January 11.  According to Mr. Barrow, Mr. Devito said that he did not want to run on a slate, and

Mr. Barrow thereupon advised him of his option to run as an independent.  Mr. Barrow further states that Mr. Devito called him again at home that evening.  Mr. Devito was upset, said that he had had an argument with Mr. Clark, and told Mr. Barrow that he wanted to withdraw his name as a candidate.  Mr. Clark confirms that Mr. Devito told him that he, Devito, would not run on a slate and had in fact hung up on Mr. Clark.  Mr. Devito called Ray Haynes, the Election Officer's Adjunct in Vancouver, twice on Friday, January 12, 1996, leaving messages on the answering machine that he was not running as a delegate.

Mr. Kozak telephoned Mr. Devito at home to confirm that Mr. Devito had decided not to run.  Mr. Devito told Mr. Kozak that he had already told Mr. Clark that he was not going to run in the election.  According to Mr. Kozak, it was in this conversation that Mr. Devito volunteered to withdraw his protest with respect to the local union election and also offered to speak to the other protester.  Mr. Kozak states that they also discussed an organizing campaign for a new company which Mr. Devito had identified.  When Mr. Devito said that he enjoyed organizing, Mr. Kozak asserts that he asked Mr. Devito whether he would like to take the Canadian Labour Congress (CLC) training course which was coming up at the end of January.  Mr. Kozak further claims that they had a discussion about Mr. Clark's slate, and Mr. Kozak asked Mr. Devito why he would run on the Clark slate.  According to Mr. Kozak, Mr. Devito stated it was a long story and that he would tell him about it over dinner the next time

Mr. Kozak was in Victoria.  Mr. Kozak then suggested to Mr. Devito that they might have a round of golf the next time Mr. Kozak came over.

Mr. Devito disputes Mr. Kozak's version of the conversation stated above.  According to Mr. Devito, the conversation took place on Thursday evening, January 11.  He states that Mr. Kozak called him at home and said that if Mr. Devito did not run it would help

Mr. Kozak immeasurably.  According to Mr. Devito, Mr. Kozak said that he could do things for Mr. Devito if the latter decided not to run, including sponsoring him at the CLC Training School, furthering his standing in the local, and provide golf games and dinners.  Mr. Devito asserts that Mr. Kozak gave him a direct telephone line to call at Mr. Kozak's office and his private home phone number.

Mr. Devito further states that the two men spoke again on the morning of January 12.  In that conversation, Mr. Kozak stated that he would take Mr. Devito off work in order to have him assist in organizing drives, and that Mr. Kozak would further sponsor him at the CLC training school.  According to Mr. Devito, Mr. Kozak offered to enroll him in the course that very day.

According to Mr. Devito, he thought about his conversations with Mr. Kozak on January 11 and 12 and concluded that he was being bribed.  He therefore called Mr. Haynes' answering machine a third time and said that he had changed his mind and that he would be running for a delegate position.  He also called Mr. Clark that evening and said that he was confused, but that because Mr. Kozak had made promises if he did not run, he had decided to run after all on the Clark slate.

Steve Clark, et al.

February 15, 1996

Page 1

On Saturday, January 13, Mr. Haynes returned Mr. Devito's call to confirm whether or not Mr. Devito was running.  Mr. Devito said that he would be running and that he would be filing a protest with respect to Mr. Kozak's conduct.  In fact, Mr. Devito signed a slate declaration form and a protest on January 13; the protest was faxed to the Election Office the same day by Mr. Clark.  Mr. Devito says that he then phoned Mr. Barrow and told him that a protest had been filed.

Mr. Devito attended the CLC training school, which was paid for by the local union at a cost of some $830.  The registration form was signed by Mr. Kozak.  In addition,

Mr. Devito is currently running on the Clark slate. 

Article XII, Section 1(b) of the Rules prohibits an employer or labor organization from making any "campaign contribution" which is defined as any contribution "where the purpose, object or foreseeable effect of that contribution is to influence, positively or negatively, the election of a candidate . . . "  An offer of anything of value by a local union officer to a member in exchange for his/her agreement to run or refrain from running for office would be a form of bribery and a clear violation of this rule.

Here, the parties differ sharply as to what was said, and when, in the conversations between Mr. Kozak and Mr. Devito.  Based on interviews with all the identifiable witnesses, and viewing the facts as a totality, the Election Officer credits the version of the facts set forth by Messrs. Kozak and Barrow.  Mr. Devito's version of the facts was undercut by his initial assertion that he had not spoken to anyone before he filed his protest and decided to do it entirely on his own.  During the investigation, he admitted that prior to filing the protest, he had a long conversation with Mr. Clark.  Moreover, although Mr. Devito claims to see the CLC training course as part of a bribe, it did not prevent him from accepting it. 

However, even accepting Mr. Kozak's version of the facts, the Election Officer finds that a violation of the Rules took place.  Mr. Kozak knew that Mr. Devito was a potential adversary in the delegate elections, and that Mr. Devito had further challenged Mr. Kozak's handling of the local union elections as well.  After Mr. Devito stated that he was withdrawing his protest with respect to the local elections and had decided not to run for a delegate position, Mr. Kozak then offered him benefits paid for by the local union, including the CLC organizer's training and an opportunity to do organizing for the local.  Even if these opportunities were not offered to Mr. Devito beforehand in order to persuade him not to run, the evidence demonstrates that they were offered to Mr. Devito afterwards in order to reward him for not running.  The fact that the reward may be based in part on conduct related to the local union election does not prevent the finding of a violation where the transaction also affected rights protected under the Rules with respect to the International election.  The offer by Mr. Kozak therefore had the purpose, object or foreseeable effect of influencing the election of delegates from Local 464, and thus violated Article XII, Section 1(b).

Steve Clark, et al.

February 15, 1996

Page 1

Mr. Kozak has also filed charges against Mr. Clark and Mr. Devito for filing frivolous and malicious preelection protests.  Given the Election Officer's ruling above, it is clear that the protests were not frivolous, whatever the political motivation may have been in filing them.  The filing of protests is a protected activity under the Rules, and is an essential part of insuring that the 1996 election will be democratic and fair.  Puglisi, P-1074-LU63-ENG (November 25, 1991), aff’d, 91 - Elec. App. - 242, aff’d, 88 CIV 4486, slip op. (S.D.N.Y. 1992), Crawley, P-098-LU988-PNJ (June 30, 1995), aff’d, 95 - Elec. App. - 1 (KC)(July 14, 1995).  Language contained in a protest is absolutely privileged and cannot be the basis for another protest.

However, in light of the findings above, Mr. Devito's conduct in this area also bears scrutiny.  Mr. Devito claims he was being offered a bribe in order to refrain from exercising his rights under the Rules--yet he took the "bribe" by attending the CLC training course at the local union's expense.  Even if, as described above, the payment was not a bribe but a prohibited payment to affect the election, it is equally a violation of Article XII, Section 1(b) for a candidate to accept or use any such contribution.  It is no defense that a candidate accepted a prohibited contribution but then did not perform his/her end of the bargain.  It was clearly improper for Mr. Devito to accept the CLC training course and the opportunity to become an organizer, understanding, as he did, that it was offered in exchange for his agreement not to run for office.

For the above-stated reasons, the protests in P-311 and P-332 are GRANTED.  The protest in P-312 is DENIED.  The Election Officer additionally finds an independent violation of the Rules by Mr. Devito.

The Election Officer is empowered to remedy violations of the Rules by whatever action is appropriate.  Article XIV, Section 4.  Any attempt to influence members and persuade them from exercising their rights under the Rules is extremely serious.  Officers of the IBT and its affiliates may not, under any conditions, use the resources of their office to persuade other members to run or refrain from running for office.  In an appropriate case, the Election Officer would be justified in removing the offending party from the ballot and barring him or her from running for office. 

However, the proven facts in this case do not warrant so drastic a remedy, since there was insufficient evidence of bribery, only a reward after the member had voluntarily decided not to run for office.  Further, the member apparently decided to accept the reward and run for office anyway.  Under these circumstances, the appropriate remedy is to undue the financial damage to the membership caused by improper use of union funds, and to publish an appropriate notice.

Therefore, the Election Officer orders that within seven (7) days, Mr. Kozak and

Mr. Devito shall jointly reimburse the local union for the cost of the CLC training course, including travel, lodging and related expenses.  Mr. Kozak shall pay two thirds of the amount, and Mr. Devito shall pay one third of the amount.  Within two (2) days of making such payment, each party shall file an affidavit of compliance with the Election Officer. 

Mr. Kozak's affidavit shall also attach all of the receipts, invoices, and related documentation which Mr. Devito submitted to the local union in connection with his training.

Steve Clark, et al.

February 15, 1996

Page 1

In addition, both Mr. Kozak and Mr. Devito shall, within two (2) days of this decision, sign and the local union shall post on all local union bulletin boards the attached notice.  The notice shall also be published in the next regular issue of the local union newspaper or other periodical regularly made available to the local union's members.

Finally, Mr. Kozak and Mr. Devito shall cease and desist from offering or using any union monies which has the purpose, intent or foreseeable effect of influencing candidates for office or any other right under the Rules.

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:

Kenneth Conboy, Esq.

Latham and 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

Gwen Randall, Regional Coordinator

              NOTICE TO ALL IBT LOCAL 464 MEMBERS

Under the Rules for the 1995-1996 IBT International Union Delegate and Officer Election ("Rules"), you have the right to support and campaign on behalf of any candidate for International office in the IBT, as well as the right to run for election as a delegate to the International Convention.

You have the right to engage in such activities, and any other activities protected by the Rules, free from constraint, intimidation, or coercion from anyone, including members, employees, or officers of Local Union 464.

The Rules prohibit IBT affiliates from contributing, directly or indirectly, anything of value where the purpose, object or foreseeable effect of the contribution is to influence, positively or negatively, the election of a candidate.  The Rules also prohibit a candidate from accepting or using any such contribution.

The Election Officer has determined that that Secretary-Treasurer David P. Kozak violated the Rules by using union funds to attempt to reward a Local Union 464 member, Paul DeVito, who had decided not to run for a position as a delegate to the 1996 International Convention.  The Election Officer has also determined that Mr. DeVito violated the Rules by allowing union funds to be used on his behalf, which he believed to be an improper attempt to influence the delegate elections.

The Election Officer has ordered that Mr. Kozak reimburse the Local Union two thirds of the cost of funds improperly paid on behalf of Mr. DeVito and that Mr. DeVito reimburse the Local Union one third of the cost of funds improperly paid on his behalf.

                            ____________________________

DAVID P. KOZAK

Secretary-Treasurer

IBT Local Union 464

____________________________

PAUL DEVITO

Member, IBT Local Union 464

This is an official notice which must remain posted for 30 consecutive days and must not be defaced or altered in any manner or be covered with any other material.

Approved by Barbara Zack Quindel, IBT Election Officer.