March 18, 1996
VIA UPS OVERNIGHT
Rebecca Hanscom
7310 Indian Boundary
Gary, IN 46403
Mike A. DiCosola
5 North 175 Pintail Lane
Barlett, IL 60103
Re: Election Office Case No. P-536-LU738-CHI
Gentlemen:
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 Rebecca Hanscom, a Local Union 738 business agent. Ms. Hanscom alleges that Michelangelo DiCosola, a member of Local Union 738 and a candidate for delegate on the Members First slate, campaigned during work hours inside various departments of Brach & Brock Confections (“Brach”) with the employer’s knowledge. This protest was deferred by the Election Officer for post-election consideration pursuant to her authority under Article XIV, Section 2(f)(2) of the Rules.
In response, Mr. DiCosola denies having campaigned inside the Brach facility during work hours. He states that he has spoken about his candidacy among members only during lunch breaks and only when others inquire first about his candidacy. Brach denies knowledge of
Mr. DiCosola’s alleged campaign activities.
This protest was investigated by Adjunct Regional Coordinator Dennis Sarsany.
Ballots for the Local Union 738 election were counted on April 6, 1996. Five delegate positions and two alternate delegate positions were at stake. The results were as follows:
Rebecca Hanscom
March 18, 1996
Page 1
Delegates
Name Slate Votes
Julio C. Lara Steve Weinert 608
Loretta Byrd Steve Weinert 578
Steve Weinert Steve Weinert 557
Roy Dennis Steve Weinert 549
Michael J. McManus Steve Weinert 545
Mike DiCosola Members First 349
George H. Zaremba Members First 304
Robert Wabol Members First 302
Richard J. Wonogas Members First 298
Richard Strejc Members First 297
Alternate Delegates
Name Slate Votes
Gregory A. Reyes Steve Weinert 588
Bruce E. Zaruba Steve Weinert 546
Thomas J. Wilson Members First 325
Ms. Hanscom does not claim first-hand knowledge of the alleged campaign activity. She provided the names of two witnesses. Union Steward Johnnie Clark is employed in Brach’s shipping department. Mr. Clark states that on at least two occasions he saw Mr. DiCosola passing out campaign literature and selling campaign raffle tickets while on work time in the shipping department, the Gum, and the Chocolate Spray departments. Union Steward William Morgan also states that he observed Mr. DiCosola distributing campaign literature during work hours. Mr. Morgan, who works in the Jelly Bean/Creme Center department, says that he complained to Brach management regarding Mr. DiCosola’s campaigning. Brach initially did nothing to halt Mr. DiCosola’s activity. Later, according to Mr. Morgan, the company’s personnel director requested that Mr. DiCosola cease his campaign activity during work hours.
Ms. Hanscom also gave the Election Officer a copy of a letter dated February 21, 1996, which she wrote as a Local Union 738 business agent, to John Klepper of the Brach Human Resources Department. The letter alerts Mr. Klepper as to campaign activity occurring on company time and inquires as to whether Brach had changed its no-solicitation policy. The Election Officer’s representative spoke with Mr. Klepper regarding the letter and Brach’s knowledge of the alleged activities. Although he denies knowledge of any such activity, following the receipt of Ms. Hanscom’s letter, Mr. Klepper states that he advised members of Brach’s Human Resources Department that prohibitions against such activity should be enforced consistent with terms of its collective bargaining agreement with Local Union 738.
Rebecca Hanscom
March 18, 1996
Page 1
Mr. DiCosola works as a pipefitter in Brach’s Jelly Bean/Cream Centers department. He admits that he sold raffle tickets to help with campaign costs, but denies that these solicitations occurred in work areas or on work time. He also states that he campaigned only during lunch breaks. In a subsequent conversation, Mr. DiCosola expanded upon his earlier statements to make them more general in nature. He told the Election Officer’s representative that because he was aware of a company rule against campaigning, these solicitations occurred only in Brach’s parking lot during shift changes. Two hours after speaking with Mr. DiCosola, a member of
Mr. DiCosola’s slate of candidates, Rick Strejc, contacted the Election Officer’s representative to ask if Mr. DiCosola’s campaign activities could affect the participation of other members of his slate.
Article VIII, Section 11(a) of the Rules states, in relevant part, that “[n]o candidate or member may campaign during his/her working hours. Campaigning incidental to work is not, however, violative of this section. Further, campaigning during paid vacation, paid lunch hours or breaks, or similar paid time off is also not violative of this section.” Among the factors the Election Officer considers in assessing incidental campaigning is the activity’s duration. Jones, P-100-LU866-SOU (December 20, 1990), aff’d, 90 - Elec. App. - 26 (SA) (December 28, 1990).
Article XII, Section 1(b)(1), in relevant part, prohibits an employer from contributing anything of value to influence the election of a candidate.
The Election Officer credits the statements of Mr. Clark and Mr. Morgan. The Election Officer does not credit Mr. DiCosola’s denial of the protester’s allegations, as he changed his version of the facts in his conversations with the investigator. In addition, Mr. Strejc’s subsequent conversation with the Election Officer’s representative supports the allegation that Mr. DiCosola may have impermissibly campaigned on Brach’s property.
While the Rules permit campaigning that is “incidental” to work activities, the Election Officer finds that this was not such an activity. Here, the selling of raffle tickets during work hours were not a one-time occurrence. Stewards Morgan and Clark observed Mr. DiCosola selling tickets and campaigning on work time. Thus, the Election Officer finds that Article VIII, Section 11(a) of the Rules was violated.
The Election Officer, however, finds that the evidence is insufficient to support
Ms. Hanscom’s allegations against Brach. She credits Mr. Klepper’s statements denying Brach’s knowledge of Mr. DiCosola’s campaigning. When Brach learned of campaigning, it took action to stop it.
Rebecca Hanscom
March 18, 1996
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This protest is being considered in a post-election context. Therefore, the Election Officer must consider whether the violation “may have affected the outcome of the election” under Article XIV, Section 3(b) of the Rules. 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. Hotel Employees, Local 6, 391 U.S. 492, 507 (1968). A violation creates a presumption that the outcome was affected. Id. Once a violation is established, therefore, the Election Officer determines whether the effect of the violation was sufficient in scope to affect the outcome of the election. Id. Dole v. Mailhandlers, Local 317, 711 F. Supp. 577, 581 (D.C.M.D. Ala. 1989). Here, while a violation of the Rules has occurred, neither Mr. DiCosola nor any member of his slate won a
delegate or alternate position. Therefore, the election’s outcome was not affected by
Mr. DiCosola’s Rules violation, and a remedy is not necessary.
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:
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 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
Julie Hamos, Regional Coordinator
Dennis Sarsany, Adjunct Regional Coordinator