April 18, 1996
VIA UPS OVERNIGHT
Mark Wigley
5905 Ranch Road
Cocoa, FL 32927
Danny “Pete” Peterson, President
Teamsters Local Union 385
126 N. Kirkman Road
Orlando, FL 32811
Re: Election Office Case No. P-668-385-SEC
Gentlemen:
Mark Wigley, a member of Local Union 385, filed a pre-election protest pursuant to Article XIV, Section 2(b) of the Rules for the 1995-1996 IBT International Union Delegate and Officer Election (“Rules”). The protester alleges that Danny Peterson, president of Local Union 385 and a candidate for delegate on the Local 385 slate, criticized the opposing Independent slate from the podium during a local union membership meeting, in violation of the Rules. The Election Officer deferred her consideration of the pre-election protest, pursuant to Article XIV, Section 2(f)(2) of the Rules.
Mr. Peterson denies that campaigning occurred.
Regional Coordinator J. Griffin Morgan investigated the protest.
The membership meeting at issue took place on March 23. Ballots were counted for that election on March 29, for four delegates and four alternate positions. The results are as follows:
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April 18, 1996
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Delegates
Name Slate Votes
Mario Ferenac Local 385 539
Ray Alligood Local 385 531
Danny “Pete” Peterson Local 385 530
Rom Dulskis Local 385 503
Howard Frady Independent Slate 348
Gerald Burns Independent Slate 343
John Coskey Independent Slate 319
Tim Lemaster Independent Slate 317
Mike Moore Unaffiliated 117
Benjamin Moore Unaffiliated 95
Paul Nowlin Unaffiliated 81
Brian Heath Unaffiliated 72
Alternate Delegates
Name Slate Votes
Donna-Lynne Dalton Local 385 547
Ed Harmon, Jr. Local 385 516
Wes Robinson Local 385 515
Mark Ritter Local 385 503
Pam Logan Independent Slate 385
Chris Welsh Independent Slate 357
Doug Wilson Independent Slate 347
E. Frank Dean Independent Slate 336
Michael Karcher Unaffiliated 88
Murray Dykes Unaffiliated 74
The margin between the winning candidate with the fewest votes, and the losing candidate with the most votes, was 155 in the delegate election and 118 in the alternate delegate election.
Local Union 385 had a regular monthly membership meeting on March 23, with
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41 members present. Eleven of them were candidates for delegate or alternate. During the meeting Mr. Peterson questioned campaign literature for the Independent slate sent to the local union hall, criticizing those who had sent it for using a fax machine owned by someone whom he did not name, but identified as a person who had filed charges against the local union. There is some dispute as to whether Mr. Peterson actually named the Independent slate, but his remarks clearly referred to the candidates on that slate and condemned them by association. These comments took up a few minutes in a meeting lasting approximately 45 minutes. As soon as Mr. Peterson made his remarks, Howard Frady, a candidate for delegate on the Independent slate, stood up and objected, contending that the comments were campaigning.
The Election Officer finds that when Mr. Peterson disparaged his opposition,
he was campaigning, and that unless there is notice and equal treatment, campaigning from the podium while chairing the meeting violates the requirements of Article VIII, Section 5 of the Rules. See Quinn, P-401-LU815-NYC (April 12, 1996); Fiori, P-343--LU726-CHI (March 4, 1996).
Because these protests are being considered in a post-election context, 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).
As in Quinn, in considering the effect of improper campaigning at membership meetings on election results, the Election Officer considers the size of the audience compared to the vote margin, the likely effect of the message on the audience, and the proximity in time of the meeting to the election. Here, Mr. Peterson’s comments were brief, and immediately challenged by Mr. Frady. There were 41 members present at the meeting and the margin of victory was 128 votes. In these circumstances, the Election Officer finds that this violation did not was not sufficient in scope to have influenced the outcome of the election.
Based upon the foregoing, 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
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April 18, 1996
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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
J. Griffin Morgan, Regional Coordinator