Protest Decisions

              June 4, 1996

VIA UPS OVERNIGHT

Julian Torres, et al.

June 4, 1996

Page 1

Julian Torres

817 Geneva Avenue

San Francisco, CA 94112

Jack Ford

1021 Everglades Drive

Pacifica, CA 94047

Tim Farrelly

1216 Wisconsin Street

San Francisco, CA 94107

Unity Slate

c/o Andy Cirkelis, Secretary-Treasurer

Teamsters Local Union 921

450 Harrison Street, Room 304

San Francisco, CA 94105

Richard Jordan

c/o San Francisco Newspaper Agency

925 Mission Street

San Francisco, CA 94103

Ron Carey, General President

International Brotherhood of Teamsters

25 Louisiana Avenue, N.W.

Washington, DC 20001

John Sullivan, Associate General Counsel

International Brotherhood of Teamsters

25 Louisiana Avenue, N.W.

Washington, DC 20001

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Re: Election Office Case Nos.              P-732-LU921-CSF, Post-21-LU921-CSF, Post-22-LU921-CSF

Gentlemen:

Jack Ford, Tim Farrelly and Julian Torres, members of Local Union 921, filed a

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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”) against Andy Cirkelis, secretary-treasurer of Local Union 921 and a candidate for delegate on the Unity slate.  The protesters allege that Mr. Cirkelis caused an article to be published in the April 1996 issue of the Northern California Teamster, a publication of Joint Council 7, in order to promote his candidacy.  The protesters contend that the article was “old news” and, therefore, the only reason for the article to be published at that time was to support Mr. Cirkelis’ delegate candidacy.  The protesters also allege that Mr. Cirkelis campaigned while on union time by conducting work-site meetings with members employed at the San Francisco Newspaper Agency (“Agency”).  The protest was deferred by the Election Officer for post-election consideration, pursuant to Article XIV, Section 2(f)(2) of the Rules.

Mr. Cirkelis and Richard Collins, Local Union 921 business agent and the candidate for alternate delegate on the Unity slate which lost the delegate election, filed post-election protests, pursuant to Article XIV, Section 3 of the Rules.  In Post-21-LU921-CSF, the protesters allege that:  (1) ballots were counted for certain members not in good standing;

(2) ballots were not counted for certain other members in good standing with dues paid up;

(3) the Agency attempted to influence the election by delaying the release of a controversial contract dispute settlement proposal and then providing an advance copy to the opposing Caucus for a Democratic Union (C.D.U.) (“CDU”) slate, composed of Local Union 921 President Jack Ford and Trustee Julian Torres; (4) IBT General Secretary-Treasurer

Tom Sever sent a letter critical of Unity slate members to Local Union 921 Executive Board members at their home addresses and CDU slate members disseminated the letter to employer representatives and local union members for political advantage; (5) the Agency colluded with the CDU slate to renew inquiry into an allegedly stale incident involving Mr. Collins in order to embarrass him; and (6) the Agency colluded with the CDU slate to create an issue about employment rights of casual workers, in order to embarrass the Unity slate.

In Post-22-LU921-CSF, Messrs. Cirkelis and Collins allege that:  (1) IBT General President Ron Carey retaliated against the protesters for filing Post-21-LU921-CSF by issuing a letter interpreting the IBT Constitution in a manner unfavorable to an action taken by

Mr. Cirkelis and (2) Regional Coordinator Matthew D. Ross improperly inquired into the Unity slate’s alignment in the International election before the ballot count was completed. 

The Election Officer consolidated all of these protests for consideration.              These protests were investigated by Regional Coordinator Ross.  The investigation of the allegation involving Mr. Ross was supervised by Protest Chief Benetta Mansfield.

Ballots were counted in the Local Union 921 delegate election on April 25, 1996.  The official election tally sheet shows that 346 ballots were cast, of which 267 were counted.  There were 73 void ballots and six 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/Independent

1                            Jack Ford                                                                      136                            CDU

2                            Andy Cirkelis                                                        129                            Unity

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Alternate Delegate

1                            Julian Torres                                                                      124                            CDU

2                            Richard Collins                                                        113                            Unity

3                            Frank H. Stanavage                                                        27                            Independent

1.              P-732-LU921-CSF

A.              Allegation that the April 1996 Article in the Northern California Teamster Supported

Mr. Cirkelis’ Candidacy

Local Union 921 members went on strike against the Agency during November 1994.  The strike lasted 11 days.  After the strike, the employer fired 27 local union members who were drivers for the Agency for alleged misconduct during the strike.  The union won a majority of the arbitration cases it filed challenging the discharges.  The April 1996 issue of Northern California Teamster reported on the union’s victory in the strike-misconduct cases and on the local union’s prolonged struggles with the Agency.  The protesters allege that the article was published to promote Mr. Cirkelis’ candidacy.

Eric Johnson, the editor of the Northern California Teamster, responds that the newspaper has been closely following the strike by Local Union 921 against the Agency. 

Mr. Johnson states that he solicited the protested article from the local union after Joint Council 7 President Chuck Mack advised Mr. Johnson, several months ago, of the local union victories in the arbitration cases emanating from a prolonged strike against the Agency. 

Mr. Collins advises that the Agency did not issue checks for back pay owed as a result of the arbitrations until early February 1996.  He states that the local union delayed publicizing the arbitration cases until the checks for back pay were issued.

The protested article, which starts on the front page of the April 1996 issue of the Northern California Teamster, reports that Local Union 921 won 25 out of 27 arbitration cases involving charges of strike misconduct arising out of the local union’s strike against the Agency in November 1994.  The article reports that in February 1996, the employer mailed out checks for back pay totaling approximately $168,000.  The article provides the employer’s position in the arbitration cases and describes the local union’s efforts to settle the cases.  It mentions Mr. Cirkelis in connection with its description of other disputes between the local union and the Agency arising out of the strike.  The article reports on a case pending before the National Labor Relations Board related to the negotiations which broke down resulting in the strike.  Toward the end of the article, after its jump to the newspaper’s second page, the article reports that Mr. Cirkelis successfully negotiated an interim agreement with the Agency concerning how union security and seniority would be handled after the strike.  The article concludes by advising that the union and the employer are currently negotiating an agreement to succeed the agreement in effect prior to the strike.

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Article VIII, Section 8(a) of the Rules states that a union-financed publication or communication may not be “used to support or attack any candidate or the candidacy of any person.”  In reviewing union-financed communications for improper campaign content, the Election Officer looks to the tone, content and timing of the publication.  Martin, P-010-

IBT-PNJ, et al. (August 17, 1995) (decision on remand), aff’d 95 - Elec. App. - 18 (KC) (October 2, 1995).  The Election Officer also considers the context in which the communication appeared.  In Martin, the Election Officer recognized that union officers and officials have a “right and responsibility to exercise the powers of their office and to advise and report to the membership on issues of general concern.” (quoting Camarata v. International Bhd. of Teamsters, 478 F. Supp. 321, 330 (D.D.C. 1979), aff’d 108 L.R.R.M. (BNA) 2924 (D.C. Cir. 1981)).

The Northern California Teamster documented that it has reported on disputes between the local union and the Agency frequently in recent years.  This article, reporting on the union’s victories in the arbitrations against the Agency, concerns an ongoing dispute that is a matter of interest to union members.  Further, the investigation disclosed that it is not unusual for the Joint Council 7 newspaper to report on subjects suggested by Mr. Mack, the joint council president.

The protesters argue that the timing of the article was intended to aid the campaign of Mr. Cirkelis in the delegate election, in which ballots were mailed on March 29, 1996 and counted on April 25, 1996.  The Northern California Teamster is published on the first Tuesday of every other month starting in February.  It was reasonable for the local union to delay publicizing its victories in the arbitration cases until the back-pay checks were received by members in February.  The April 1996 issue of the newspaper containing the story came out on time.  Thus, there is no evidence that publication of the April 1996 Northern California Teamster issue or of the article mentioning Mr. Cirkelis was delayed to promote his candidacy.  The Election Officer finds that the article did not improperly support the candidacy of Mr. Cirkelis.

B.  Allegation of Campaigning on Union Time

Before the April 25, 1996 delegate election, Mr. Cirkelis conducted three meetings with Local Union 921 members employed by the Agency.  The meetings, referred to by the local union as “curb-side meetings,” were held outside of the Agency offices.  Mr. Cirkelis held two curb-side meetings on April 5, 1996 at the Agency office in Mountain View, California.  He held another such meeting on April 8, 1996 at the Agency office in Oakland, California.

The investigation disclosed that Mr. Cirkelis held the two meetings at the Mountain View Agency office in order to catch workers on different shifts.  At each meeting,

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Mr. Cirkelis reported to the Agency employees on the status of the negotiations between the local union and the Agency.  Mr. Cirkelis was the head of union negotiations with the Agency, and such curbside meetings had occurred previously during the ongoing dispute with the Agency.  Near the end of one Mountain View meeting, Mr. Cirkelis mentioned that ballots in the delegate election were in the mail and said, “Be sure to vote, it’s important.”  Near the end of the other meeting Mr. Cirkelis made reference to his ability to pay his own way if he wanted to attend the IBT convention.  He did not solicit votes for any candidate at either meeting.  The protesters produced only one witness to the Oakland meeting and he was unable to recount anything Mr. Cirkelis said.

The Election Officer has stated that the definition of “campaigning,” as that term is used in the Rules, contemplates more than mere communication with the members.  Some indication of advocacy for the nomination, election or defeat of a candidate must be in evidence.  See Martin, supra.  Mr. Cirkelis’ comments at the curbside meetings, as reported, were not campaigning and therefore his conduct did not violate the Rules.

2.  Post-21-LU921-CSF

A.  Allegations that the Agency Made Improper Employer Contributions to the CDU Slate

The protesters contend that the Agency attempted to influence the outcome of the delegate election, through improper employer contributions, by:  (1) delaying the release of a contract settlement proposal and then providing an advance copy of the proposal to the CDU slate; (2) providing the CDU slate with two letters involving contributions to the health and welfare fund on behalf of Mr. Collins; and (3) assisting the CDU slate candidates to generate and release a letter purporting to bar certain Local Union 921 members from further casual employment in order to discredit the Unity slate candidates.

As to the contract settlement proposal, the investigation showed that Agency Vice President for Human Relations Richard Jordan faxed the second draft of a working agreement for a new contract to Mr. Ford on April 24, 1996 at approximately 3:00 p.m.  The draft states in the fourth paragraph of Section E (page 3), “This settlement document may be revealed to the Union’s Executive Board, officers, and attorneys only.  Upon signing, the terms of this document will be revealed to the membership of Local 921 for purposes of ratification.” 

Mr. Jordan states that he thought the ballot count in the local union election was over when he released the draft to Mr. Ford.  Messrs. Ford and Torres both state that they did not show the draft to anyone else before the election.

Article XII, Section 1(b)(1) of the Rules provides:

No employer may contribute, or shall be permitted to contribute, directly or indirectly, anything of value, where the purpose, object or foreseeable effect of the contribution is to influence, positively or negatively, the election of a candidate.  No candidate may accept or use any such contribution.

The Election Officer finds no improper employer contribution on this record. 

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Mr. Jordan did not fax the draft to Mr. Ford until 3:00 p.m. on the day before ballots were counted.  Article III, Section 1(h) of the Rules provides that no ballot will be counted unless received before 9:00 a.m. on the day of the count.  Thus, there was little or no time in which Mr. Ford could have received the draft, read it, used it to campaign with undecided voters, and for those voters then to cast their ballots in time to be processed and delivered to the Election Officer’s post office box before 9:00 a.m. the next morning. 

As to the allegations about letters concerning Mr. Collins, the protesters state that

Mr. Jordan colluded with the CDU slate candidates “to generate written correspondence suggesting impropriety by Unity Slate candidates concerning a stale matter which had been reviewed and dismissed by the IBT Ethical Practices Committee and reviewed by the IRB some two years’ ago,” for the purpose of creating unfair political advantage.

Mr. Jordan is a trustee of the trust and welfare fund.  The protesters allege election impropriety with respect to two letters that Mr. Jordan sent to Messrs. Cirkelis and Ford in the context of this inquiry over the contributions made on Mr. Collins’ behalf to the fund.  One letter was dated March 14, 1996 and the other letter was dated March 20, 1996.

The Election Officer takes no position on merits of this apparent dispute.  The protesters allege that Mr. Ford made improper use of the letters at a meeting on April 17. 

Mr. Collins admitted that he and/or Mr. Cirkelis heard about Mr. Ford’s alleged use the next day, April 18.  Thus, their protest filed on April 26 was untimely.[1]

Finally, the protesters allege that the Agency, through Mr. Jordan, provided a letter to Mr. Ford, which Mr. Ford then disseminated, “purporting to bar certain Local 921 members from further casual employment,” in order to discredit Unity slate candidates.

During the investigation, Mr. Collins stated that he heard “within the last few days of March or the first few days of April” that Mr. Ford had been disseminating the letter.[2]  Thus, this allegation filed in the April 26th protest was untimely.

B.  Allegation that Mr. Sever’s Letter Was an Improper Union Contribution

On February 12, 1996, General Secretary-Treasurer Sever issued a letter to

Mr. Cirkelis and the members of Local Union 921’s Executive Board summarizing the results of an IBT audit of the local union.  The protesters characterize the letter as unfavorable to

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Mr. Cirkelis.  They allege that the IBT sent Mr. Sever’s letter to the local union executive board members at their home addresses and that the CDU slate disseminated it for campaign purposes.  The protesters focus principally on the sending of the letter to home addresses, which they contend allowed circumvention of a March 1995 written policy against releasing local union documents without the approval of Mr. Cirkelis.

During the investigation, Mr. Cirkelis stated that he first heard that Mr. Sever’s letter had been disseminated “within several weeks of the time it was sent out.”  Adding three weeks to the February 12th date of the letter indicates that Mr. Cirkelis learned of the action he protests by the first full week of March.  His protest was not filed, however, until April 26. Accordingly, the Election Officer finds that this allegation is untimely.

C.              Allegation Regarding Improprieties at the Ballot Count

1.              Allegation that Ballots Were Counted for Certain Members Not in Good Standing

The protesters state that, over objection, the ballots of three categories of members who were not in good standing were counted:  members on suspension for non-payment of dues; members whose dues were in arrears for the month preceding the ballot count, or earlier; and members who should have been suspended automatically for having fine or assessment arrearages for more than 90 days.

The investigation revealed that the protesters did not raise challenges at the ballot count, as required by the Rules, with respect to ballots cast by members allegedly on suspension or allegedly subject to automatic suspension for arrearages in fines or assessments.  The requirement of raising challenges to voter eligibility promptly at the ballot count is fundamental to the operation of the count procedures set forth in Articles III and VI of the Rules. 

As Article VI, Section 2 provides:

Prior to the commencement of any count of ballots, and under the direct supervision and control of the Election Officer, the eligibility to vote of each member who cast a ballot shall be verified.  The Election Officer, her representatives, or any candidate or observer present may challenge the eligibility of any member to vote.  If such challenge cannot be resolved to the satisfaction of the Election Officer or her representatives and the challenger, the ballot of the member whose eligibility to vote is challenged shall be so marked by noting on the outside of the return ballot envelope the reason(s) for the challenge.

Challenging a member’s ballot is a serious matter.  Therefore, Article III, Section 1(j) of the Rules provides that “[m]eritless challenges shall not be entertained.  The Election Officer or her representative shall have the authority to declare meritless and to disregard any challenge not supported by documentary evidence.”

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Under Article III, Section 4(e) of the Rules, “All unchallenged ballots shall be counted first.  Challenged ballots shall be treated as provided in Article V, Section 9 of the Rules,” which sets forth a procedure for resolving only so many challenged ballots as necessary to determine the outcome of the election:

All challenged ballots shall be segregated . . . All unchallenged ballots shall be counted first.  If the challenged ballots may not affect the outcome of the election, such ballots shall not be counted.  If the challenged ballots may affect the outcome of an election, challenges shall be resolved . . . by groups in succession.  Challenged ballots from each group resolved in favor of eligibility shall be counted until such time as the challenged ballots remaining no longer may affect the outcome of the election [at which time] the count shall cease and remaining challenges shall not be resolved.

Once a ballot is removed from its return envelope and cast, it cannot be identified or recalled.  Thus, the Rules appropriately require that voter eligibility “shall” be determined before ballots are counted, and that challenged ballots necessary to determine the outcome of the election shall be resolved at the time of the count.

With respect to these two categories of allegedly ineligible members--members on suspension for non-payment of dues and members who should have been suspended for fine or assessment arrearages exceeding 90 days--the Election Officer finds that challenges were not raised at the ballot count.  To excuse the failure to make direct challenges, the protesters state that Mr. Collins did not arrive at the ballot count until after eligibility determinations had been made and ballots sorted into piles.  However, the Regional Coordinator was not required to wait for Mr. Collins and the Election Officer notes that an observer for the Unity slate,

Adele Campli-Cirkelis, was present throughout the ballot count.  The protesters also contend that the Regional Coordinator should have inferred that they thought certain categories of members ineligible through a notice they posted before the count and through certain questions they asked during the count.  Challenges are not made by implication.  Therefore, the Election Officer finds that these categories of challenges, not properly raised at the count, were waived and cannot be used as a basis to challenge this election.

Timely challenges were made, however, as to those members employed by the Agency who paid dues by check-off, but whose dues accounts at the local union were shown to be two months or more in arrears through the end of March 1996.  To make that challenge,

Mr. Collins furnished Regional Coordinator Ross with a copy of the local union’s dues delinquency list for March, on which he had circled outstanding dues amounts for 19 Agency employees.  Of that number, 18 members were shown owing two months of dues and one member, Alberto J. Garcia, was shown owing eight months of dues.

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The Regional Coordinator, following a telephone conference with the Election Officer, ruled at the ballot count that all 19 challenged members were eligible to vote and their ballots were opened and counted.

The challenges to these 19 members arise from a strike between Local Union 921 and the Agency which was settled about two years ago, although the parties have continued to disagree over the terms of their purported settlement.  The local union has taken the position that a valid check-off was part of the settlement.  It is undisputed, however, that the Agency did not implement dues check-off until March 1996, one month before the ballot count.

Article VI, Section 1 of the Rules generally requires that “[t]o be eligible to vote in an election . . . a member must have his/her dues paid up through the month prior to the month in which the election is held.”  The Local Union 921 ballot count was held in April.  However, Article VI, Section 1(b) specifically addresses the eligibility of members on check-off and presumes that the requirement of paid-up dues is met if certain conditions are satisfied:

Under and in accordance with Article X, Section 5(c) of the IBT Constitution, each member otherwise in good standing whose dues record does not reflect that his/her dues have been paid through the month prior to the month in which ballots are counted, who pays his/her dues by check-off, and whose employer has remitted dues for him/her in the last remittance made by such employer, provided that such remittance was received within ninety (90) days of the date on which the ballots are counted.

In order to be eligible to vote under this rule, a member who pays by check-off but does not show a record of payment for the month prior to the count will still be eligible if: 

(1) the employer remitted dues for the member in the last remittance and (2) the last remittance was within 90 days of the count.

At the ballot count, the Regional Coordinator examined the Agency’s most recent remittance report, dated April 22, 1996 (three days before the count date).  All 19 members whose ballots were challenged by Mr. Collins showed deductions for March dues.[3]  According to the protesters, that deduction did not bring the challenged members up-to-date because all were in arrears for two months or more.  Article VI, Section 1(b) of the Rules requires that these members be found eligible.  This is consistent with Article X, Section 5(c) of the IBT Constitution whereby the employer’s failure to make dues deductions in prior months does not compromise the good standing of an affected member. 

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Article X, Section 5(c) of the IBT Constitution does provide a method for depriving a member of the safe-harbor provided by their check-off status:

[A] member on dues checkoff whose employer fails to make a proper deduction during any month in which the member has earnings from which the dues could have been deducted, shall not lose good standing status for that month.  In such an event, the Local Union shall notify the member of his employer’s failure and payment shall be made by the member within thirty (30) days of said notice in order to retain good standing status.

The investigation disclosed that the 18 members challenged for only two months of dues arrearage had not received such notices.[4]  Therefore, the Election Officer affirms their eligibility to vote.  With respect to Mr. Garcia, the investigation revealed that the local union had sent notices to him requesting cash payment and also sent him a notice dated August 31, 1995, informing him of his suspension from membership for non-payment of dues. 

Mr. Garcia’s failure to pay within 30 days of receiving such notices put him out of compliance with Article VI, Section 1(b) of the Rules quoted above.  Mr. Garcia, therefore, was not eligible to vote and the challenge as to him should have been sustained.[5]

Mr. Collins contends that the 18 challenged members with two months of dues arrearage should not be accorded the eligibility presumption discussed above because it was well-known before March that the Agency was not making check-off deductions.  The Election Officer finds that the ongoing disagreement between the local union and the employer, resulting in the failure of the employer to make deductions, was not the fault of the affected members.  That dispute did not excuse the members from paying dues.  It did mean, however, under Article X, Section 5(c) of the IBT Constitution, that these members would not lose their good standing and their right to vote unless the local union sent notices requesting cash payment and the members did not comply.  Without such action, these members retained their good standing and were eligible to vote.

2.              Allegation that Ballots Were Not Counted for Eligible Members

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The protesters state that, “[o]ver objection, the ballots of members who were in good standing with dues paid through March, 1996, prior to vote counting, were not counted . . .”  They further state that “examples include but are not limited to Brother Lars Eklof, Brother David Byrens and Sister Kim Venezia.”

As noted above, the Rules require questions of voter eligibility to be raised with specificity.  Therefore, the Election Officer will only address the eligibility of the three persons named.

Mr. Eklof’s ballot was challenged under standard Election Office procedures, due to an irregularity in his dues record.  Under Article V, Section 9 of the Rules, a ballot count “shall cease and remaining challenges shall not be resolved” when the number of remaining challenged ballots is too small to affect the outcome of the election.  The count in this matter was stopped when the number of remaining challenged ballots, including Mr. Eklof’s, was six and the smallest margin of victory was seven.  Concluding the count at this point did not violate the Rules.

Mr. Byrens and Ms. Venezia were ruled ineligible by the Election Officer’s representative, because they did not remedy dues delinquencies until the day of the ballot count, April 25.  The local union’s election plan, submitted by Mr. Cirkelis and approved by the Election Officer, provides that the last date on which members could pay dues arrearages in order to be eligible to vote in the delegate election was April 24.  Thus, under the terms of the plan, Mr. Byrens and Ms. Venezia were ineligible to vote.

3.  Post-22-LU921-CSF             

A.              Allegation that General President Carey Retaliated Against the Protesters for Filing

Post-021-LU921-CSF

The protesters allege that a letter dated April 29, 1996, from IBT General President Carey to Mr. Cirkelis, in which Mr. Carey construes the local union bylaws pursuant to

Mr. Carey’s authority under the IBT Constitution, constituted retaliation against them.  They state that the retaliation was:

. . . for [their] appeal of the [local union delegate] election based upon an allegation of misconduct on the part of the IBT General Secretary, and, further, for appealing the election in which the high vote-getter for the sole delegate representative from this local union has professed to be a support of the General President, and still further, to provide unfair political advantage to the opposition slate in the event a new election is ordered.

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The investigation revealed the following background:  In mid-April 1996, Mr. Cirkelis canceled a local union executive board meeting scheduled for April 24, due to his inability to attend.  Mr. Ford objected to the cancellation as beyond Mr. Cirkelis’ authority under the local union bylaws.  Mr. Ford then raised this issue with Mr. Carey by letter dated April 19, asking Mr. Carey to exercise his authority under Article VI, Section 2(a) of the IBT Constitution “to interpret . . . laws of the International Union, including the authority to interpret the Bylaws of subordinate bodies. . . .”  Mr. Carey responded by his letter dated April 29, in which he construed Local Union 921’s bylaws not to permit the principal officer to cancel the executive board meeting.

The IBT responds that the April 29, 1996 letter was a legitimate union communication responding to a request by a local union president for an interpretation of the local union bylaws.

Article VIII, Section 11(f) of the Rules prohibits “[r]etaliation or threat of retaliation by the International Union . . . against a Union member, officer or employee for exercising any right guaranteed by this or any other Article of the Rules.”

In evaluating allegations that the IBT has engaged in retaliation when exercising authority under its Constitution, the Election Officer has repeatedly recognized the need to defer to the IBT in such exercises unless there is evidence of abuse of that authority which violates the Rules.  See Gilmartin, et al., P-032-LU245-PNJ, et seq., aff’d 95 - Elec.

App. - 75 (KC) (February 7, 1996) (no violation where general president found contributions by affiliates to RTC unconstitutional); Riley, P-035-IBT-SCE (June 30, 1995), aff’d 95 - Elec. App. - 4 (KC) (July 25, 1995) (no violation where IBT created new joint council); Executive Board, Local Union 745, P-247-IBT-SCE (January 22, 1996), aff’d 96 - Elec. App. - 74 (KC) (February 6, 1996) (no violation where general president ruled that affiliates could not make large prepayments of attorneys’ fees to prevent the International union from having access to those funds).

In this matter, the Election Officer finds no evidence to support the allegation that

Mr. Carey issued his letter of April 29 to retaliate against the protesters for filing Post-21-LU921-CSF or to support the CDU slate in the event of a re-run. In exercising his authority under the IBT Constitution to resolve the local union bylaw dispute raised by Mr. Ford against Mr. Cirkelis, Mr. Carey inevitably had to make a decision that would accord with one side and not the other.  The ruling by Mr. Carey had a legitimate non-discriminatory basis and did not violate the Rules.[6]

B.  Allegations Involving the Neutrality of the Regional Coordinator.

The protesters allege that Regional Coordinator Ross:

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. . . breached his obligation of neutrality and the appearance of same by eliciting, even perhaps innocently, of a Unity Slate candidate his political affiliation in the contested election for IBT General President prior to the completion of the vote count . . . and prior to disposition of all vote-counting challenges having been decided upon. 

(Emphasis in original)

Mr. Cirkelis states that Mr. Ross had a conversation with him before the ballot count was finished, in the late afternoon of April 25.  Mr. Cirkelis was working on local union business in his office, upstairs from where the count was taking place in the local union’s library.  Mr. Ross and others occasionally came upstairs and passed through Mr. Cirkelis’ office to use the local union’s photocopier.

Mr. Cirkelis alleges that during one such trip, Mr. Ross suggested that he attend the count, which was in its final stage.  Mr. Cirkelis declined for work reasons.  At that point, he states that Mr. Ross made the following “casual” remark:  “By the way, what is the situation in this local between Carey and Jim Hoffa?  Are you guys Carey or Hoffa supporters?”  According to Mr. Cirkelis, he and Mr. Ross then had a short discussion of International politics, during which Mr. Cirkelis called Mr. Hoffa “an enigma.”  Mr. Cirkelis asserts that Mr. Ross then stated that “Mr. Hoffa’s never been on a truck.  He works as the assistant to Michigan Joint Council President Larry Brennan.”

Mr. Ross admits asking Mr. Cirkelis in a general way about whether the local union slates were supporting particular International candidates.  He states, however, that he did so only after the election was completed and the ballots were sealed in the election box, when he passed through Mr. Cirkelis’ office after making a copy of the final tally sheet.  Mr. Ross asserts that his conversation with Mr. Cirkelis about coming downstairs for the final part of the count took place earlier.  Mr. Ross denies making any remark about Mr. Hoffa, his position or his experience.

While the better course of action would have been to refrain from any questions about delegate candidate electoral preferences, the Election Officer finds Mr. Ross did not breach his duty to act with neutrality and impartiality.  In many local unions, such affiliations are common knowledge.  The fact that the Election Officer representatives have knowledge or are aware of delegate candidates’ electoral preferences does not compromise their ability to conduct their work in a completely impartial manner.  Neutrality is not breached unless decision-making is actually affected, for which Election Officer would have no tolerance.  The protesters make no such allegation.

The Election Officer finds that Mr. Ross’ discussion with Mr. Cirkelis about International affiliations took place after the election was completed and that Mr. Ross made no comment about any particular candidate.  She has examined the count procedures and the resolution of challenges, and she is confident that Mr. Ross acted with neutrality and impartiality at all times.

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For the reasons stated above, the protest in Post-21-LU921-CSF is GRANTED as to the challenge raised to the eligibility of Alberto J. Garcia, and DENIED in all other respects. The protests in P-732-LU921-CSF and Post-22-LU921-CSF are DENIED.

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 ballot count was stopped when the margin of victory between

Mr. Ford (136 votes) and Mr. Cirkelis (129 votes) was seven.  Six challenged ballots remained unresolved.  Mr. Garcia’s vote, which should not have been counted, is unknown.  If Mr. Garcia voted for Mr. Cirkelis, the election was not affected.  If Mr. Garcia voted for Mr. Ford, however, then removing that vote would lessen Mr. Ford’s margin of victory to six.  In such a circumstance, the six unresolved challenged ballots would have the potential for affecting the outcome.

Accordingly, the Election Officer will resolve the six remaining challenged ballots in the Local Union 921 delegate election.

Ronald A. Anderson

Mr. Anderson is an employee of the Agency on dues check-off.  He was listed on the Agency’s most recent remittance report as “Deduction Not Taken” because he did not receive a paycheck for the week in which deductions were made.  However, the Agency has verified that Mr. Anderson had sufficient earnings in each week of April for a check-off deduction to have been made.   When a member is on check-off, the Election Officer has found the member to be eligible so long as the member had sufficient earnings in the month(s) in question from which dues can be deducted.  This interpretation is supported by the plain language of

Article X, Section 5(c) of the IBT Constitution which states that members on dues check-off will not lose good standing status for any given month if an employer fails to make a proper deduction during any month in which the member has earnings from which the dues could have been deducted.  See Goscinak, E-009-LU259-EOH (October 31, 1995).  Since

Mr. Anderson had sufficient earnings from which the dues could have been deducted, the Election Officer finds that he is eligible to vote.

Ken J. Baptista

Julian Torres, et al.

June 4, 1996

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Mr. Baptista was an employee of the Agency on dues check-off until he was terminated on February 1, 1996.  Mr. Baptista has a grievance pending regarding his termination by the Agency.  Immediately after his termination by the Agency, Mr. Baptista was employed by the San Mateo Times, where the best evidence indicates that he was on dues check-off.  The San Mateo plant closed on March 13, 1996.  Mr. Baptista had sufficient earnings in February and March from which check-off deductions could have been made.  Therefore, for the reasons set forth above with regard to Mr. Anderson, the Election Officer finds he is eligible to vote.

Lars Eklof

Mr. Eklof and his wife are both members of Local Union 921.  They remit dues in a single check.  In early April, Ms. Eklof contacted the local union office to ask what she and Mr. Eklof owed in outstanding dues and assessments.  She remitted that amount, without specifying how the money was to be applied.  That check arrived at the local union office on April 11 while the main TITAN operator was on vacation.  The Election Officer finds that the substitute operator did not credit the accounts of Mr. and Ms. Eklof properly, resulting in a deficiency for him.  This error was not the fault of Mr. Eklof.  The Election Officer finds that he is eligible to vote.

Robert Glennon

Mr. Glennon is an employee of the Agency.  The investigation revealed that he filed a check-off authorization at the local union on February 13, 1996.  The Agency does not acknowledge receiving it, however, and Mr. Glennon’s name did not appear on the Agency’s most recent remittance list.  Mr. Glennon filed another authorization on May 8.  The Election Officer finds that Mr. Glennon had taken appropriate action to institute dues check-off, that the Agency’s failure to acknowledge it was not his fault.  The local union delinquency list also shows that Mr. Glennon owed a reiniation fee, which he asked the local union’s executive board to waive.  Mr. Collins states that local union policy is to grant waivers if members pay all outstanding dues obligations and agree to go on check-off.[7]  Under these circumstances and since Mr. Glennon had sufficient earnings from which dues could have been deducted in February and March, the Election Officer finds he is eligible to vote for the reasons set forth with regard to Mr. Anderson.

Rui W. Huang

Mr. Huang paid his March dues in cash on April 23, one day prior to the cut-off for dues payments stated in the local union’s election plan.  As of the ballot count, Mr. Huang owed a $250 re-initiation fee.  However, his request for waiver of that fee was pending before the local union’s executive board.  The Election Officer finds that Mr. Huang is eligible to vote, for the reasons given with respect to Mr. Glennon.

Julian Torres, et al.

June 4, 1996

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Marcus Popyon

Mr. Popyon is a part-time employee who pays his dues by shift.  His TITAN record reflects that he fully paid his initiation fees and dues, but that these amounts were incorrectly posted as an administrative fee on his TITAN record, apparently due to confusion by the TITAN operator regarding the posting of part-time dues.  His record reflects his dues at the time of the count were paid through April 1996.  Accordingly, Mr. Popyon is eligible to vote.

Thus, the Election Officer finds that all six remaining challenged ballots will be counted.  In continuing the count, Mr. Ford’s total will be assumed to be 135 (removing the potential ballot of Mr. Garcia) and Mr. Cirkelis’ total will be 129.  Thus, if all six challenged ballots are cast for Mr. Cirkelis, the Election Officer will declare a tie (at 135) and the tie shall be resolved by lot.  Rules, Article III, Section 4(I).  If any challenged vote is cast for Mr. Ford, then a tie would be impossible and the Election Officer will declare Mr. Ford shall be the certified delegate.  In any event, the election of Mr. Torres as alternate delegate will not be disturbed.

In establishing this procedure for identifying a winner, the Election Officer recognizes the possibility that Mr. Garcia did not vote for Mr. Ford, but voted instead for Mr. Cirkelis.  If one vote were removed from Mr. Cirkelis’ total, then adding all six challenged ballots would still leave him behind Mr. Ford.  Thus, the Election Officer has considered whether appropriate action, in case all six challenged ballots are cast for Mr. Cirkelis, would be to

re-run Local Union 921’s delegate election.  The Election Officer finds that deciding by lot would more nearly honor the spirit of this very close election, and the Rules, than would

re-opening the election process to new campaigning and another vote.

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

Julian Torres, et al.

June 4, 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

Matthew D. Ross, Regional Coordinator