April 24, 1996
VIA UPS OVERNIGHT
Jack Phelan
2360 W. Sailsbury
Westbury, NY 11590
Richard Volpe, Secretary-Treasurer
Teamsters Local Union 550
6 Tuxedo Avenue
New Hyde Park, NY 11040
Re: Election Office Case No. P-711-LU550-NYC
Gentlemen:
A pre-election protest was filed pursuant to Article XIV, Section 2(b) of the Rules for the IBT International Union Delegate and Officer Election (“Rules”) by Jack Phelan, a member of Local Union 550 and candidate for alternate delegate on The Carey Team - “Not One Step Back” (“Carey Team”) slate. Mr. Phelan alleges that John Balbi, a Local
Union 550 trustee and steward, removed him from a local union shop committee in retaliation for his candidacy. The Election Officer deferred the protest for consideration post-election, pursuant to Article XIV, Section 2(f)(2).
This protest was investigated by New York City Protest Coordinator Barbara Deinhardt.
Mr. Phelan works for Interstate Baking at its Farmingdale depot. Before the events giving rise to this protest, Mr. Balbi appointed Mr. Phelan to the shop committee serving that depot and Interstate Baking’s Bohemia depot.
About a week after Mr. Phelan was nominated to run for alternate delegate on the Carey Team slate, he met with Mr. Balbi and offered to resign from the shop committee.
Jack Phelan
April 24, 1996
Page 1
Mr. Balbi and all of the other committee members support the candidacy of Local Union 550 Secretary-Treasurer Richard Volpe, head of the Local 550 “First” (“First”) slate, and candidate for general president, James Hoffa. Mr. Balbi said that Mr. Phelan’s resignation was not necessary.
About three weeks later, on March 22, 1996, Mr. Balbi and Assistant Shop Steward George Pidkameny approached Mr. Phelan after work at a Ground Round. Mr. Phelan alleges that Mr. Balbi brought up Mr. Phelan’s previous offer to resign and asked him to do so.
Mr. Phelan states that when he refused, Mr. Balbi said that Mr. Phelan’s candidacy was embarrassing to him, that everybody was supposed to do things his way, and that it was embarrassing for Mr. Phelan to be opposing Mr. Volpe and Local Union 550 President
Tom Flannery, the First slate’s candidate for alternate delegate. According to Mr. Phelan,
Mr. Balbi then turned to Mr. Pidkameny and said that “from now on, Jack is to have nothing to do with the shop committee work; is that understood?” Mr. Pidkameny replied, “Yes.”
Mr. Phelan further alleges that when Messrs. Balbi and Pidkameny both went on vacation about a week later, he was informed that a shop committee member less senior to him, Barry Hecht, would be acting steward. Mr. Phelan contends that the designation of acting steward has always been by seniority, that he is the next most senior shop committee member, and that he has been designated acting steward before.
In his interview with the New York City Protest Coordinator, Mr. Balbi admitted asking Mr. Phelan to resign. Mr. Balbi admitted being “stunned,” “surprised” and “offended” when Mr. Phelan decided to run against the First slate because Mr. Balbi had appointed Mr. Phelan to his position and they had been close.
Mr. Balbi did not admit to removing Mr. Phelan from the shop committee. However, Mr. Balbi gave the Protest Coordinator three different versions of what did happen. He first said that his response to Mr. Phelan’s refusal to resign was to say that he had no problem with that. Later, he said that he then asked Mr. Phelan to take a little recess and come back when “all this” is over, and that Mr. Phelan agreed. Toward the end of his interview, he stated that Mr. Phelan said, “If you want me off, you’ll have to put me off,” and Mr. Balbi stated that he would not do that.
As to making Mr. Hecht acting steward instead of Mr. Phelan, Mr. Balbi admitted that such decisions are generally made according to seniority. Mr. Balbi said that Mr. Pidkameny chose the less senior Mr. Hecht because Mr. Phelan was tied up with lots of meetings related to the election and was busy campaigning. Thus, Mr. Pidkameny thought that Mr. Phelan might not have time to perform the steward duties.
According to Mr. Pidkameny, he suggested that Mr. Phelan “take a leave of absence to appease John Balbi” and come back to the committee when the election was over, and that
Jack Phelan
April 24, 1996
Page 1
Mr. Phelan agreed. Mr. Pidkameny states that Mr. Balbi never asked Mr. Phelan to resign. With respect to passing over Mr. Phelan for acting steward, Mr. Pidkameny asserts that his comment to Mr. Balbi about Mr. Phelan being too busy campaigning was a joke, and that he chose Mr. Hecht due to Mr. Hecht’s experience with the new depot manager.
Mr. Balbi stated that he runs his shop and that the local union officers do not tell him what to do. He asserted that he never discussed his dealings with Mr. Phelan with
Messrs. Volpe or Flannery.
Local Union 550 is entitled to elect one delegate and one alternate delegate. Ballots were counted on April 15, 1996. The official election tally sheet shows that 554 ballots were cast, of which 474 were counted. There were 31 void ballots and 49 unresolved challenged ballots. The challenges were left unresolved because the number was too small to affect any of the election results. The ranking of candidates was as follows:
Delegate
Rank Name Votes Slate or Independent
1 Rich Volpe 362 First slate
2 John Carter 121 Carey Team slate
Alternate Delegate
Rank Name Votes Slate or Independent
1 Tom Flannery 361 First slate
2 Jack Phelan 124 Carey Team slate
Article VIII, Section 11(f) of the Rules provides:
Retaliation or threat of retaliation by the International Union, any subordinate body, any member of the IBT, any employer or other person or entity against a Union member, officer or employee for exercising any right guaranteed by this or any other Article of the Rules is prohibited.
Mr. Phelan’s decision to run for alternate delegate is specifically protected by
Article VIII, Section 11 of the Rules: “All Union members retain the right to participate in campaign activities, including the right to run for office . . .” Such a right is at the very core of the democratic election process that the Rules are designed to protect. As Judge Edelstein stated in reviewing the current Rules:
Jack Phelan
April 24, 1996
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Fair elections demand that IBT members are given a meaningful, uncoerced choice of candidates. Candidates must be freed of any hesitation about speaking openly on issues, including criticism of the incumbent IBT structure. Candidates must be fearlessly free to communicate those views to the membership. Members must be assured and given confidence that they need not fear to engage in untrammeled discussion.
The realization of these freedoms constitutes the election rules’ core mission, a mission that is crucial to the fulfillment of the Consent Decree’s goals.
United States v. International Bhd. of Teamsters, et al., 88 Civ. 4486 (DNE) (S.D.N.Y.) (slip op. August 22, 1995) at 5-6.
As conduct protected by the Rules, Mr. Phelan’s candidacy cannot be a basis for any action taken against him. Yet, Mr. Balbi in his interview with the Protest Coordinator forthrightly identified Mr. Phelan’s candidacy as the source of his reservation about
Mr. Phelan’s ability to continue on the shop committee. According to him, it would be “awkward” because Mr. Phelan would not be able to participate in the shop committee’s activities connected to the election. Furthermore, Mr. Balbi expressed his concern that
Mr. Phelan’s candidacy and his support of Mr. Carey was a “conflict of interest” with the rest of the shop committee’s support for Mr. Volpe, the First slate and Mr. Hoffa. Finally,
Mr. Phelan’s presence would prevent the shop committee from discussing the election.
The Election Officer finds that all of these reasons violate the Rules if used as grounds to take action against Mr. Phelan. While substantive labor law generally permits labor union officials to remove appointees for political reasons, the Rules do not, if such action is based on a member’s exercise of rights guaranteed under the Rules. See Wsol, P-095-IBT-CHI (September 20, 1995), aff’d, 95 - Elec. App. - 17 (KC) (October 10, 1995); Parisi, P-1095-LU294-PGH (December 2, 1991); Cremen, P-425-LU311-MID (March 11, 1991), aff’d,
91 - Elec. App. - 101 (SA) (March 19, 1991). As the Election Appeals Master stated on appeal in Wsol, “the Election Rules are broader than federal labor law, and prohibit any retaliation relating to the exercise of members’ rights under the Rules, including the right to run for union office.”
The Election Officer does not credit any of Mr. Balbi’s three versions of his reaction to Mr. Phelan’s refusal to resign from the shop committee. In light of Mr. Pidkameny’s decision one week later to pass over Mr. Phelan for acting steward and choose someone less senior, the Election Officer finds that Mr. Balbi decided to retaliate against Mr. Phelan with respect to Mr. Phelan’s shop committee membership and communicated that decision to
Mr. Pidkameny, either in Mr. Phelan’s presence as Mr. Phelan contends, or thereafter.
Mr. Pidkameny executed that decision in passing over Mr. Phelan.
Jack Phelan
April 24, 1996
Page 1
The Election Officer also does not credit Mr. Pidkameny. He explained that he passed over Mr. Phelan for acting steward due to Mr. Hecht's experience with the new depot manager. However, this is inconsistent with his statement that Mr. Phelan was on leave from the committee at the time, and therefore would not be in a position to be appointed. The Election Officer finds that Mr. Pidkameny’s assertion that Mr. Phelan’s change in status was “to appease Mr. Balbi” corroborates the retaliatory motivation at the heart of this matter.
Moreover, throughout Mr. Balbi’s interview with the Protest Coordinator, he fails to make the distinction between local union work and campaign activity. Mr. Balbi stated that Mr. Phelan’s candidacy was “awkward” because Mr. Phelan would not be able to participate in the shop committee’s activities connected to the election. However, the shop committee cannot engage in partisan election-related activity without violating Article VIII, Section 11(c)
of the Rules.[1] The Rules protect campaigning as a personal right of IBT members and require that it be exercised that way. The work of the shop committee must be distinct from campaigning by its members, whether they agree with each other or not. This distinction between work responsibilities and campaigning is so fundamental to the successful operation of the Rules that it deserves comment here, even though this record does not reflect any actual violation of the Rules except for the retaliation by Messrs. Balbi and Pidkameny against
Mr. Phelan with respect to Mr. Phelan’s membership on the shop committee.
For the reasons stated above, this protest is GRANTED.
This protest is being considered in a post-election context. Therefore, the Election Officer must consider whether the violations “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 this matter, the Election Officer finds that Mr. Phelan made no claim that his ability to run or campaign for alternate delegate was impaired by the retaliatory conduct that he suffered. Therefore, the Election Officer finds that the violation did not affect the outcome of the election.
Jack Phelan
April 24, 1996
Page 1
Under Article XIV, Section 3(b), however, “any timely protest alleging improper threats, coercion, intimidation, acts of violence or retaliation for exercising any right protected by the Rules shall be considered and remedied without regard to whether the alleged violation affected the outcome of an election.” Mr. Phelan was retaliated against for participating in the democratic election process under the Rules. That will not be condoned.
Accordingly, the Election Officer orders the following:
Mr. Balbi shall restore Mr. Phelan to the full enjoyment and performance of his position on the shop committee for the Farmingdale and Bohemia depots of Interstate Baking. In addition, Messrs. Balbi and Pidkameny shall immediately cease and desist from using
Mr. Phelan’s electoral activity as a basis for denying him any right or privilege he would otherwise enjoy.
Messrs. Balbi and Pidkameny shall execute the attached notice and, within three (3) days of the date of this decision, post it on all Local Union 550 bulletin boards at the Farmingdale and Bohemia depots of Interstate Baking and at Local Union 550’s offices. The notice shall remain posted for 30 days and must not be altered, defaced, or covered with any other material. Within five (5) days of completing the posting, Messrs. Balbi and Pidkameny shall file an affidavit with the Election Officer explaining and attesting to full compliance with this order.
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).
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
Jack Phelan
April 24, 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
Barbara C. Deinhardt, New York City Protest Coordinator
Arthur Wasserman, Regional Coordinator
Notice to All Members of IBT Local Union 550
at the Farmingdale and Bohemia Depots
of Interstate Baking
from
John Balbi, trustee and steward, and
George Pidkameny, assistant steward
All IBT members have the right to participate in campaign activities relating to the IBT International Union Delegate and Officer Election, including the right to run for delegate and alternate delegate. All IBT members have the right to openly support or oppose any candidate or slate of candidates and to aid or campaign for any candidate or slate of candidates seeking International Union office. It is a violation of Election Rules for any union officer or member to retaliate against any other IBT member because he or she has engaged in such campaign activities.
The Election Officer found that when we effectively removed Jack Phelan from the local union shop committee, and passed over him for an acting steward position, we retaliated against him for his candidacy for delegate, in violation of the Election Rules.
We will not retaliate or discriminate against Jack Phalen or any other member of Local Union 550 for running for delegate or alternate delegate or for engaging in any other campaign activities.
Jack Phelan has been restored to the full performance of his position on the shop committee for Interstate Baking’s depots at Farmingdale and Bohemia.
______________________________
JOHN BALBI
Steward
______________________________
GEORGE PIDKAMENY
Assistant Steward
Approved by Barbara Zack Quindel, Election Officer
This is an official notice and must remain posted for 30 days and must not be altered, defaced or covered with any other material.
[1]“Union funds, facilities, equipment, stationery, personnel, etc., may not be used to assist in campaigning unless the Union is reimbursed at fair market value for such assistance, and unless all candidates are provided equal access to such assistance and are notified in advance, in writing, of the availability of such assistance.” The shop committee at issue here performs local union functions and therefore is covered by this provision of the Rules.