March 29, 1996
VIA UPS OVERNIGHT
George Young, et al.
March 29, 1996
Page 1
George Young
26727 W. 226th Street
Spring Hill, KS 66083
Paul Heiman
20045 W. 119th Street
Olathe, KS 66061
Wesley Epperson
1702 Evanston
Independence, MO 64052
Johnny W. Platt
2005 N.E. 36 Terrace
Kansas City, MO 64116
Michael Savwoir
P.O. Box 16046
Kansas City, MO 64112
Philip E. Young, President
Member First Slate
Teamsters Local Union 41
4501 Van Brunt Boulevard
Kansas City, MO 64130
Dennis Speak, Secretary-Treasurer
Teamsters Local Union 41
4501 Van Brunt Boulevard
Kansas City, MO 64130
Doc Conder
Teamsters Local Union 41
4501 Van Brunt Boulevard
Kansas City, MO 64130
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Re: Election Office Case Nos. P-426-LU41-MOI
P-439-LU41-MOI
P-465-LU41-MOI
P-480-LU41-MOI
P-511-LU41-MOI
P-535-LU41-MOI
P-540-LU41-MOI
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March 29, 1996
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Gentlemen:
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") by George Young, Paul Heiman, Wesley Epperson, Johnny W. Platt and Michael Savwoir against Local Union 41 and the Members First delegate slate. The protesters are members of Local Union 41 and were candidates for delegate on the competing Putting Members First slate.
In P-426-LU41-MOI, Paul Heiman and Wesley Epperson allege that a work-site list received from Local Union 41 contained errors and omissions. In P-426-LU41-MOI, P-465-LU41-MOI and P-480-LU41-MOI, George Young and Johnny Platt allege that notices of election and of nomination results were not posted on various union bulletin boards. In P-511-LU41-MOI, Mr. Platt alleges that campaign literature was removed from a union bulletin board, and he was intimidated for exercising rights under the Rules by a member supporting the opposing slate. In P-540-LU41-MOI, Mr. Platt alleges that a confusing notice on the procedures for obtaining ballots was posted on a union bulletin board. In P-439-LU41-MOI, Mr. Young objects to distribution of campaign literature by a candidate for delegate while on union time. In P-535-LU41-MOI, Michael Savwoir alleges that the Members First slate used employer equipment to copy and distribute campaign literature.
Associate Regional Coordinator William O. Eisler investigated these protests. The Election Officer deferred the protests for post-election review pursuant to her authority under Article XIV, Section 2(f)(2) of the Rules.
Ballots for the delegate election for Local Union 41 were mailed on February 15, 1996. On March 7, 1996, the ballots were counted under the direction of Associate Regional Coordinator Eisler. Of the 6,018 ballots mailed out to Local Union 41’s members, 2,571 were returned. The election results for Local Union 41 were as follows:
Delegate Candidates Number of Votes
Members First
Harold McLaughlin 1,894
Phil Young 1,892
Dan Johnson 1,888
Dennis R. Speak 1,873
Charlie Howerton 1,857
Gilbert Aguirre 1,844
Warren Hayes 1,841
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Putting Members First
Wes Epperson 530
Michael A. Savwoir 502
Les McGrew 500
George Young 500
Tom Dalton 498
Richard D. Hall 489
Johnny Platt 486
Alternate Delegate Candidates Number of Votes
Members First
Mario Rojas 1,861
John H. Thompson 1,857
Al Hellebuyck 1,849
Don Howerton 1,846
Arlie Williams 1,838
John Jarman 1,835
Vic Terranella 1,835
Putting Members First
Paul Heiman 513
Patrick S. O’Connell 511
Kenneth M. Hamm 510
Kevin P. Moroney 505
R.J. Noone 503
Shawn O’Malley 502
Gilbert R. Marzett 488
The Members First delegate candidate with the least votes received 1,311 more votes than the Putting Members First candidate with the most votes; for the alternate slates, the difference was 1,322 votes.
1. Protests Identifying Deficiencies in the Work-Site List: P-426-LU41-MOI
On November 29 and December 1, 1995, respectively, protesters Paul Heiman and Wesley Epperson each requested a current list of all work sites, in accordance with
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Article VIII, Section 1(b) of the Rules. Local Union 41 Secretary-Treasurer Dennis Speak provided the lists on December 4. In P-426-LU41-MOI, the protesters claim that the work-site list they received omitted several employers and contained a number of incorrect addresses and zip codes. The charged parties respond that several of the addresses and zip codes in question are correct, and the rest represented inadvertent errors. For example, they point out that two of the companies moved without notifying the local union.
The list was updated five times between December 4, 1995 and February 1996. During that time, an employee of Local Union 41 once asked the Associate Regional Coordinator whether the local union was obligated to forward the revised lists to Mr. Heiman and
Mr. Epperson. The Associate Regional Coordinator replied that he did not interpret the Rules to require updating. Accordingly, the local union did not send a revised list to the protesters until February 23, 1996, after protests had been filed.
It is undisputed that there are several errors in the December list. The work sites for which the December list was materially in error (the City of Grandview, Missouri, Kacon Division of Wagner Motor Freight and Midwest Terminal Warehouse) employed approximately 44 members of Local Union 41.[1]
In P-465-LU41-MOI, the protester claims that the work-site list does not include Kansas City Shippers Association, located in Kansas City, Missouri, even though seven members are on the seniority list. The investigation indicated that this company does not employ Teamster members.
Article VIII, Section 1(b) of the Rules requires that all candidates receive “a current list of all sites . . . where any and all Local Union members work.” In prior decisions, the Election Officer has interpreted this provision strictly, finding a violation even when the list provided by the local union contained relatively few inaccuracies. See Chentnik, P-223-LU325-CHI, et seq. (December 18, 1995), aff’d, 95 - Elec. App. - 52 (KC) (January 10, 1996), wherein the Election Officer found that “[a]lthough the local union attempted to comply with [Section 1(b)], some work-sites where a few members of Local Union 325 work may have been omitted from the work-site list, in violation of Article VIII, Section 1(b).” See also Carroll, P-279-L313-PNW (January 23, 1996). Accordingly, the Election Officer holds that the work-site list provided to the protesters on December 4, 1995, which contained several errors and omissions, violated the Rules.
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However, these protests are being considered in a post-election context. Therefore, pursuant to Article XIV, Section 3(b) of the Rules, the issue is whether any conduct giving rise to a violation of the Rules may have affected the outcome of the election. A violation of the Rules alone is not grounds for setting aside an election unless there is a reasonable probability that the election outcome may have been affected by the violation. Wirtz v. Local Union, Operating Engineers, 366 F.2d 438 (2nd Cir. 1966). To determine whether an effect exists, the Election Officer determines mathematically whether the effect was sufficient in scope to affect the outcome of the election and/or whether there was a causal connection between the violation and the result or outcome of the election. Dole v. Mailhandlers, Local 317, 132 LRRM 2299 (D.C.M.D. Ala. 1989).
Here the protesters’ own efforts helped to identify the relatively few material errors in the work-site list. These errors were remedied quickly. The members which might arguably have been affected by the material defects in the December work-site list are few in number (not more than 50), compared to the vote margin between the slates, at least 1,300 votes. Accordingly, the Election Officer finds that this violation of the Rules could not have affected the outcome of the election.
A second issue in these protests involves the duty of the charged parties to provide updated work-site lists to the protesters. Article VIII, Section 1(b) of the Rules states that each candidate for delegate or alternate delegate “shall have the right to a current list of all sites, with corresponding addresses, where any and all Local Union members work.” As described above, the local union did not meet its obligation to provide an updated work-site list to Mr. Heiman and Mr. Epperson until February 22. The Election Officer has held that “the provision of a [work-site] list accurate on a single date does not meet the requirements of the Rules that the candidates be given a 'current list of all sites.’” Bianchi, P-307-LU3909-SEC (February 12, 1996). In this case, the Election Officer finds that while the local union reasonably relied on the answer from the Associate Regional Coordinator, the failure of the charged parties to provide the revised lists to the protesters represents a technical violation of the Rules.
As with the errors in the December list, there is no evidence showing that the failure to provide an updated list prevented the protesters from reaching enough voters to affect the outcome of the election. This is so in part because the charged parties provided an updated list to the protesters on February 23, 1996.
Accordingly, the protests in P-426-LU41-MOI and P-465-LU41-MOI, as they pertain to defects in the work-site lists, are DENIED.
2. Failures to Post Results of Nomination Meeting and Election Notice: P-426-LU41-MOI, P-465-LU41-MOI and P-480-LU41-MOI
The issues concerning missing notices, which are the subject of all or parts of the protests in P-426-LU41-MOI, P-465-LU41-MOI and P-480-LU41-MOI, address missing notice. On December 15, 1995, Local Union 41 mailed a notice of nomination meeting, which described the processes leading up to the election, to its members. The nomination meeting, held on January 13, 1996, produced two slates: the Putting Members First slate, to which the protesters belong, and the Members First slate, composed of local union officers.
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On January 17, 1996, Local Union 41 President Phil Young sent a memorandum to all union stewards entitled “Notice of Nomination and Notice of Election,” which enclosed the list of nominees for delegate and alternate delegate and the notice of election. Mr. Young stated that “[w]e are required to maintain these postings through the delegate and alternate delegate election process.” He advised the recipients to contact their business agent or the local union “[i]f any of these notices are removed, torn down, or just disappears . . . and ask them to send you another copy so that you may re-post the notices immediately.”
A vigorous campaign developed, including leafleting at work sites and posting campaign literature on union bulletin boards at these work sites. Apparently, both election notices (including the results of the nomination meeting and of the forthcoming election) and the campaign literature of the competing slates were frequently removed from these bulletin boards.
According to the protesters, while campaigning on February 6, 8, 9 and 12, they noticed that the list of candidates was not posted at 18 different work sites and, at another site, that one list had been defaced. Mr. Epperson reported that, while campaigning on
February 12, 13 and 14, he observed that the list of candidates was not posted at six work sites and, at four of those sites, the notice of election was missing. Mr. Platt claimed that he saw on February 12, 1996 that the list of candidates was not posted at eight work sites.
The Associate Regional Coordinator contacted Local Union 41 about every work site identified by the protesters. The officers and business agents of the local union, for all but three sites, either went to the site to insure that the required notices were posted, or contacted the job steward with instructions to repost the required notices.[2] Mr. Speak sent a memorandum to all stewards on February 22, 1996 requesting that they check the bulletin boards at their work sites to make sure that the election plan summary, the list of candidates and the notice of election were posted. Stating that “[i]t is imperative that these three NOTICES remain posted until March 7, 1996,” Mr. Speak advised the stewards to contact the local union if additional copies were needed. On February 22 and 23, Mr. Speak also met with all of the business agents for Local Union 41, asking them to contact the steward again at each location identified by the protesters with instructions to keep the notices posted continuously until after the election.
The protests correctly identify approximately 30 work sites where the notice of election or nomination results were removed (or were not posted in the first place) for short intervals during the delegate campaign. However, there is nothing to suggest that the protesters were unable to distribute or post campaign materials at these sites or to otherwise inform members of the election. Moreover, the local union’s remedial actions in reposting notices and trying to replace notices independently put the membership at the affected sites on notice of the candidates and election.
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The Election Officer finds that there is no evidence to suggest that the missing notices led to an electorate without knowledge of the election, or otherwise affected its outcome.
Accordingly, the protests in P-426-LU41-MOI, P-465-LU41-MOI and P-480-LU41-MOI concerning the missing notices are DENIED.
3. Removing Literature from Bulletin Boards and Intimidation: P-511-LU41-MOI
In mid-February, there was an argument at the union bulletin board at Yellow Freight, where apparently, literature for both slates was removed often. According to Mr. Platt, the argument was about the removal of the Putting Members First slate’s postings from the bulletin board. Mr. Platt claims that Glenn Miller said that he (Mr. Miller) was the “mole” who had been removing the literature and that Mr. Platt was not fit to represent the local union. According to Mr. Platt, these statements were made to intimidate him from further campaigning for his slate. Mr. Miller and one witness admit the argument took place, but claim it was about Mr. Platt’s qualifications to represent the union. Mr. Miller denies removing Putting Members First campaign literature from the union bulletin board at Yellow Freight and telling Mr. Platt that he had done so.
Article VIII, Section 11(d) of the Rules protects the right to use the bulletin boards allegedly infringed by Mr. Miller’s conduct. Threats and intimidation for the exercise of the political rights protected by the Rules violate Article VIII, Section 11(f).
The only evidence that Mr. Miller removed campaign literature from bulletin boards is Mr. Platt’s statement about what Mr. Miller had said to him. That statement is contradicted by Mr. Miller and a witness, Mr. Johnson. They both assert that the discussion concerned only whether Mr. Platt was an appropriate candidate for delegate. The Rules require a protester to provide some evidence to support the complaint. As the Election Appeals Master has stated, when the parties to the dispute disagree as to the facts, “[i]n the absence of tangible evidence” to support the protest, it should be denied. In Re: Chentnik, 95 - Elec. App. - 52 (KC) (January 10, 1996). Here, Mr. Platt failed to produce a witness or reliable evidence in some other form to support his protest.
Mr. Platt also alleges that Mr. Miller’s statements were made to intimidate him. There is no evidence, however, that Mr. Miller actually made any threats. Instead, the evidence shows the argument was about Mr. Platt’s qualifications for office. The Election Officer has consistently held that the Rules do not regulate political messages. Rogers, P-518-LU373-SOU (February 21, 1991). Rather, as the Election Officer recently stated, “[t]he goal to be protected is free speech.” Newhouse, P-388-LU435-RMT (February 21, 1996). See Landwehr, P-201-LU795-MOI (November 15, 1995). Even if Mr. Miller had threatened
Mr. Platt, threatening words or actions between supporters of opposing candidates in the context of ongoing animosity do not by themselves necessarily violate the Rules. Dunn,
P-110-LU25-BOS (July 28, 1995), aff’d, 95 - Elec. App. - 8 (KC) (August 21, 1995).
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Finally, Mr. Platt alleges that he witnessed a rank and file member removing campaign material from the Yellow Freight bulletin board on another occasion earlier in February. Although repeatedly asked to do so, Mr. Platt refused to provide any further specifics to support this allegation.
Accordingly, the protest in P-511-LU41-MOI is DENIED.
4. Misleading Notice of Procedure for Obtaining Ballots: P-540-LU41-MOI
In P-540-LU41-MOI, Mr. Platt complains of a handout about obtaining ballots which was designed by the local union for new members and members transferring after the Election Officer had mailed the ballots. This notice was picked up at the local union office by an individual shop steward and posted on the Yellow Freight bulletin board. Local Union 41 did not instruct the steward to post the notice on the bulletin board and the notice was not distributed to any other stewards or posted on other bulletin boards.
Article II, Section 7(d) of the Rules sets out the procedures governing notices of election and of related processes for obtaining and casting ballots. The notice in question, which is not limited in explicit terms to members not receiving ballots by mail, might have caused some confusion if it had been circulated widely to Local Union 41's general membership. However, the notice directs voters to a representative of the Election Officer, who would have explained the normal ballot delivery process.
Accordingly, the protest is DENIED.
5. Using a Union Car for Distribution of Campaign Literature While on Union Time: P-439-LU41-MOI
In P-439-LU41-MOI, Mr. Young alleges that Doc Conder, a business agent for Local Union 41, violated the Rules when he distributed campaign literature on behalf of a slate of candidates while performing union business. In response, Mr. Condor states that his activities were incidental to the performance of his duties.
The facts underlying this protest are undisputed. On Saturday, February 17, after a grievance hearing at the Harcross Chemical Company in Kansas City, accompanied by two union stewards, Pat Freelon and David Heidrich, Mr. Conder walked back to his car through the Harcross parking lot. In response to an inquiry from Mr. Heidrich, Mr. Conder reached into the automobile and handed the two stewards the campaign material. Mr. Conder owns this vehicle and receives a car allowance from Local Union 41.
Article VIII, Section 11(b) of the Rules prohibits union officers from campaigning “on time that is paid for by the Union.” The provision further states, however, that campaigning “incidental to regular Union business is not, however, violative of this section.”
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Thus, while a union staff person may not campaign during work, the Rules permit campaign activity that is incidental to work. In Newhouse, P-253-LU435-RMT (January 4, 1996), the Election Officer determined that soliciting the circulation of petitions while transacting union business on union time did not violate the Rules. Similarly, short campaign-related conversations between business agents and stewards just before contract negotiations was not found to violate the Rules. Dillon, P-467-LU284-CLE (March 4, 1991).
Based on the undisputed facts, the exchange of campaign materials between
Mr. Conder and the two stewards lasted no longer than a few minutes. Under these circumstances, the Rules have not been violated.
Accordingly, the protest in P-439-LU41-MOI is DENIED.
5. Allegations of Use of Employer Equipment: P-535-LU41-MOI
In P-535-LU41-MOI, Mr. Savwoir alleged the use of employer equipment (a fax and copy machine) by the Members First slate to distribute campaign literature attacking General President Carey and the IBT general counsel. However, Mr. Savwoir has not provided any evidence to support his allegation, even though the Associate Regional Coordinator has repeatedly asked that he do so: in person on March 7; by telephone on March 9, 15 and 16; and by letter on March 19.
The Election Officer finds that Mr. Savwoir has failed to provide support for his protest, as the Rules require him to do. See Chentnik, supra.
Accordingly, the protest in P-535-LU41-MOI 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:
Kenneth Conboy, Esq.
Latham & Watkins
885 Third Avenue, Suite 1000
New York, NY 10022
Fax (212) 751-4864
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Copies of the request for hearing must be served on the parties listed above as well as upon the Election Officer, 400 N. Capitol Street, Suite 855, Washington, DC 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
William O. Eisler, Associate Regional Coordinator
Michael Gordon, Regional Coordinator
[1] The other defects identified by the protesters are technical, and not material, because the misinformation would not be any obstacle to finding the work sites to campaign at them. They include: Linder Brothers (merged with another employer independently identified on the list); CF Motor Freight (two buildings at the same address); Crooks/Shock Transfer, Maedan Transport, Maedan Management (three companies at the same address); Kansas City Piggyback (two zip codes for the same street address, either adequate); American Delivery Systems (occupied site previously occupied by another employer on the list); Roadway Express (clerical error in the street name).
[2]At three locations, TSSI, Inc., Osco Drug Company and Wagner Warehouse, notices are routinely mailed to the members' homes.