May 15, 1996
VIA UPS OVERNIGHT
Anthony Montante
May 15, 1996
Page 1
Anthony S. Montante
64 Seneca Avenue
Oneida Castle, NY 13421
James Carlin, General Manager
United Refrigerated Services
264 Farrell Road
Syracuse, NY 13209
Thomas Smith
United Refrigerated Services
P.O. Box 52427
Atlanta, GA 30355
Everett Campbell, Secretary-Treasurer
Teamsters Local Union 317
566 Spencer Street
Syracuse, NY 13204
Anthony Montante
May 15, 1996
Page 1
Re: Election Office Case Nos. P-598-LU317-PGH
Post-9-LU317-PGH
Gentlemen:
This matter involves a pre-election protest deferred by the Election Officer for post-election review and a post-election protest concerning voter eligibility. Anthony S. Montante, an independent candidate for delegate from Local Union 317, filed both protests pursuant to Article XIV, Section 2(b) and Section 3(a) of the Rules for the IBT International Union Delegate and Officer Election (“Rules”).
In P-598-LU317-PGH, the protester alleges that United Refrigeration Services (“URS”) refused to allow the protester access to its parking lot in order to campaign, in violation of the Rules.
The Election Officer deferred this protest for post-election review pursuant to her authority under Article XIV, Section 2(f)(2) of the Rules.
Anthony Montante
May 15, 1996
Page 1
After the ballot count in the Local Union 317 delegate election, Mr. Montante filed Post-9-LU317-PGH, in which he alleges that attorney Bernard King was allowed to vote in Local Union 317’s delegate election, in violation of the Rules. The protester contends that, while the local union records indicate that Mr. King is a dues-paying member, the fact that he is an employer and not a member of a bargaining unit renders him ineligible for union membership.
Regional Coordinator William B. Kane investigated the protests.
The counting of the ballots for the mail-ballot delegate election at Local Union 317 took place on March 21, 1996. There were 1,206 ballots cast, of which 1,135 were counted. One slate and 10 independent candidates competed for the five delegate positions and two alternate delegate positions. The results of the election were as follows:
Delegate:
Name Slate/Independent Votes
Everett “Abe” Campbell Campbell slate 635
Jim Augst Campbell slate 502
Richard Golden Campbell slate 531
Thomas “TK” Krakau Campbell slate 533
Joe Traver Campbell slate 515
Shawn Shanahan Independent 322
Richard D. Bolduc, Jr. Independent 196
Bill Murphy Independent 445
Mark May Independent 524
Anthony Montante Independent 364
Tom Shewchuk Independent 243
Steve Angeloro Independent 204
Alternate Delegate:
Robert Campbell Campbell slate 537
G. David Lane Campbell slate 465
Mark Simmons Independent 305
Jim McGannon Independent 344
James L. Lawrence Independent 327
1. Access to URS: P-598-LU317-PGH
Anthony Montante
May 15, 1996
Page 1
In early March 1996, Mr. Montante and James Lawrence, a candidate for alternate delegate and a political ally of Mr. Montante, went to the URS work site in Syracuse, New York, with the intention of campaigning.[1] They entered a URS parking lot to distribute literature but, according to Mr. Lawrence, they “miscalculated” the time of their visit because most of the employees were at work. At this time, they noticed a second parking lot on the premises. Neither Mr. Lawrence nor Mr. Montante requested permission from the management of URS to enter the employee parking lot. Because there were no employees, they left shortly after they arrived.
A few days later, Mr. Lawrence returned to URS alone. Again, he did not request permission to campaign, but entered the parking lot. He spoke with members at the site and distributed literature in support of his and Mr. Montante’s candidacy.
On or about March 5, 1996, Mr. Montante contacted James Carlin, the general manager at URS, to inform Mr. Carlin that he wished to have access to the second lot he observed during his visit to URS. He informed Mr. Carlin of his intention to distribute campaign literature on the URS premises. Mr. Montante provided the Election Officer with a copy of the literature he intended to distribute. It is identical to the literature as described by Mr. Lawrence that Mr. Lawrence had previously distributed at URS. According to
Mr. Montante, Mr. Carlin stated that he was unsure of Mr. Montante’s right to distribute the literature on URS premises and that he would contact counsel and then call Mr. Montante back.
Mr. Montante then called his regional coordinator who, at Mr. Montante’s’s request, faxed Mr. Carlin a copy of the Election Officer’s advisory concerning campaign access to employer parking lots. Mr. Carlin then contacted the counsel for URS, who advised him to handle the situation as he felt best. Mr. Carlin contacted Mr. Montante and denied his request for access to the parking lot and stated that if Mr. Montante attempted to campaign on URS premises he would have him arrested.
During the investigation, Mr. Carlin stated that he had no knowledge that anyone had campaigned on URS premises. He states that he would have denied access to anyone who would have asked. The investigation revealed that no other delegate candidates campaigned at URS.
Article VIII, Section 11(e) states, in relevant part:
[A] candidate for delegate or alternate delegate and any member of the candidate’s Local Union may distribute literature and/or otherwise solicit support in connection with such candidacy in any parking lot used by that Local Union’s members to park their vehicles in connection with their employment . . .
In refusing access to Mr. Montante, URS clearly violated the Rules.
Anthony Montante
May 15, 1996
Page 1
This protest, however, 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 (M.D. Ala. 1989).
In determining whether the delegate election was affected by the violation in cases where employers improperly deny access to members to campaign, the Election Officer considers whether all candidates were uniformly denied access. See Platt, Post-1-LU150-CSF, et al. (decision on remand) (April 24, 1996), aff’d 96 - Elec. App. - 144 (KC) (supplemental decision) (May 9, 1996). If one candidate was permitted to campaign and all others prevented, an unfair advantage would accrue to that candidate.
While the evidence reveals that URS would not permit access if requested, individuals campaigned at the site without the employer’s knowledge. Mr. Lawrence and the protester went to URS in early March 1996. A few days later, Mr. Lawrence passed out literature and spoke with members. The investigation revealed, however, that no other candidates campaigned at the URS work site. As a result, Messrs. Montante and Lawrence campaigned at the URS site while other candidates did not.
In fact, Mr. Montante presumably gained some advantage from Mr. Lawrence’s campaigning at URS because Mr. Lawrence distributed the literature Mr. Montante himself intended to distribute to URS employees. While the Election Officer acknowledges that distribution of literature by a third party does not have the same value as an opportunity for face-to-face campaigning, the fact that Mr. Montante’s literature was distributed at the work site indicates access to URS employees greater than that of other candidates, with the exception of Mr. Lawrence who was a candidate for alternate delegate.
Accordingly, it is the determination of the Election Officer that Mr. Montante had access to the URS employees. Thus, the violation found in this protest is not sufficient in scope to affect the outcome of the election.
Having found that the Rules have been violated, the Election Officer “may take whatever remedial action is appropriate.” Article XIV, Section 4. This is true even when a violation did not affect the outcome of the delegate election. In fashioning the appropriate remedy, the Election Officer views the seriousness of the violation, as well as its potential for interfering with the election process. While the Local Union 317 delegate election has been held, the International officer election will be held later this year. The Rules grant the same limited right of access to a candidate for International office and any union member within the regional area in which the candidate is seeking office. Thus, it is necessary to provide a remedy to insure that URS accedes to the rights granted in the Rules pertaining to the International officer elections. In these circumstances, the Election Officer directs URS to grant access to the parking lot at its Syracuse facility to non-employee IBT members for campaign purposes. See Schneider, P-453-LU70-CSF, et al. (April 12, 1996), aff’d 96 - Elec. App. - 180 (April 25, 1996) (KC).
Anthony Montante
May 15, 1996
Page 1
An order of the Election Officer, unless otherwise stayed, takes immediate effect against a party found to be in violation of the Rules. In Re: Lopez, 96 - Elec. App. - 73 (KC) (February 13, 1966).
2. Allegations Regarding Mr. King’s Eligibility: Post-9-LU317-PGH
The protester contends that because Mr. King is an employer, and not employed at a craft under the jurisdiction of Local Union 317, he cannot be a member in good standing who is eligible to vote in the local union’s delegate election. Mr. Montante also argues that
Mr. King pays dues at a rate far below the rate prescribed by the local union’s bylaws and the International Constitution. Finally, the protester contends that Mr. King’s work site, the law offices of Blitman and King, was not included on the work-site list, as required by the Rules.
According to the local union, Mr. King pays $42 per month in dues. The local union concedes that the office of Blitman and King was omitted from the work-site list. It states that this oversight has been corrected and the Blitman and King office, where Mr. King is the only member, will be included on future work-site lists. While the local union admits it broke the Rules by not including the office of Blitman and King on its work-site list, the Election Officer is satisfied that this oversight had no effect on the delegate election, since it is a sole member work site.
The investigation reveals that Mr. King did not vote in Local Union 317’s delegate election. As a result, the protester’s allegations concerning Mr. King’s eligibility to vote are moot.
For the foregoing reasons, 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
Anthony Montante
May 15, 1996
Page 1
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 B. Kane, Regional Coordinator
[1]Seventy-six members of Local Union 317 are employed at URS.