June 6, 1996
VIA UPS OVERNIGHT
Bradley Yeakel, et al.
June 6, 1996
Page 1
Bradley N. Yeakel
620 N. Jefferson Street
Allentown, PA 18102
Philip M. DePietro, President
Teamsters Local Union 773
1345 Hamilton Street
Allentown, PA 18102
William J. Hontz, Vice President
Teamsters Local Union 773
1345 Hamilton Street
Allentown, PA 18102
Gail G. Brown
Teamsters Local Union 773
1345 Hamilton Street
Allentown, PA 18102
Ronald Schmoll
Teamsters Local Union 773
1345 Hamilton Street
Allentown, PA 18102
Paul Alan Levy
Public Citizen Litigation Group
1600 20th Street, N.W.
Washington, DC 20009
Bradley Yeakel, et al.
June 6, 1996
Page 1
Re: Election Office Case Nos. P-776-LU773-PNJ, P-777-LU773-PNJ
Gentlemen:
Related pre-election protests were filed pursuant to Article XIV, Section 2(b) of the Rules for the 1995-1996 IBT International Union Delegate and Officer Election (“Rules”) by Local Union 773 member Bradley Yeakel (P-776-LU773-PNJ) and member Gail Brown, President Phillip DePietro, Vice President William Hontz and member Ronald Schmoll
(P-777-LU773-PNJ).
Bradley Yeakel, et al.
June 6, 1996
Page 1
In P-776-LU773-PNJ, Mr. Yeakel alleges that Mr. DePietro, at a May 19, 1996 local union meeting, threatened to retaliate against him for filing a protest with the Election Officer. Specifically, Mr. Yeakel contends that Mr. DePietro stated to the members at the meeting that “formal action” would be taken against an individual, “who knows who he is,” for obtaining “surveillance” photographs of the local union’s offices in support of a protest filed with the Election Officer.[1] According to Mr. Yeakel, Mr. DePietro’s threats were in retaliation against him filing a protest (P-762-LU773-PNJ), in violation of Article VIII, Section 11(f) of the Rules.
In response, Mr. DePietro states that while he did mention the various subjects at the local union meeting, he never threatened to retaliate against Mr. Yeakel for filing a protest with the Election Officer. Mr. DePietro states that Mr. Yeakel’s photographing of local union offices implicated issues of legitimate union concern--office security, members’ privacy and free speech rights--and violated the Rules. Mr. DePietro states that his reference to “formal action” was to his subsequent filing of a protest with the Election Officer (P-777-LU773-PNJ), rather than to any threat of retaliation against the protester.
In P-777-LU773-PNJ, Ms. Brown, Mr. DePietro, Mr. Hontz and Mr. Schmoll allege that Mr. Yeakel, by taking or obtaining photographs of Local Union 773 offices, engaged in a type of surveillance previously found by the Election Officer to violate the Rules. The protesters cite the Election Officer’s decisions in Halberg, P-259-IBT-SCE (January 2, 1996), aff’d 95 - Elec. App. - 58 (KC) (January 23, 1996) and Giacumbo, et al., P-210-IBT-NYC,
et seq., (December 5, 1996), aff’d 95 - Elec. App. - 45 (KC) (December 18, 1995), in support of their argument.
In response, Mr. Yeakel states that while he did submit photographs of the local union offices where campaign material was displayed to support his protest in P-762-LU773-PNJ, his right to do so is protected under the Rules. Mr. Yeakel argues that the taking of photographs in P-762-LU773-PNJ did not constitute impermissible surveillance. He states that the protesters’ reliance on Halberg and Giacumbo, supra, is misplaced, in that these cases apply only where a campaign right protected by the Rules has been asserted and not when a charged party has engaged in impermissible campaigning.
These protests were investigated by Regional Coordinator Peter V. Marks. Because of the related nature of these protests, they were consolidated by the Election Officer.
1. P-776-LU773-PNJ: Allegation of Threats to Retaliate
Article VIII, Section 11(f) of the Rules states
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.
Bradley Yeakel, et al.
June 6, 1996
Page 1
The protester contends that Mr. DePietro’s promise to take formal action against the unnamed person or persons who conducted improper “surveillance” within the local union hall constitutes a threat of retaliation, in violation of the Rules. Mr. DePietro contends that the formal action he contemplated when making the protested statement at the meeting was the filing of a pre-election protest with the Election Officer.
Mr. DePietro, along with other officers of Local Union 773, did file a protest with the Election Officer (P-777-LU773-PNJ) on May 20, 1996, in which they alleged that, in taking or obtaining the photographs used as evidence in Yeakel, supra, Mr. Yeakel violated the Rules.
The protester alleges that he was threatened at the meeting with retaliation for filing a protest, in violation of the Rules. The charged parties contend, and the protester admits, that the alleged threat was to pursue formal action against those who took the photographs protested in P-777-LU773-PNJ. It is clear from the investigation that the Mr. DePietro was not retaliating against the protester for filing the prior protest, but, rather, accusing him of a violation of “local union policy” when Mr. Yeakel obtained the photographs.
The protesters filed P-777-LU773-PNJ the day after the meeting at which Mr. DePietro made the protested comments, before he had been informed by the Election Office that
Mr. Yeakel had filed P-776-LU773-PNJ.[2] In addition, the investigation revealed that no additional formal action, beyond the filing of P-777-LU773-PNJ, has been taken against the protester in this matter by the officers of Local Union 773. Mr. DePietro’s assertion that the “formal action” he referred to at the membership meeting was the filing of a pre-election protest is, thus, credible.
“[T]he right of IBT members to file, free from retaliation, election protests, even protests which are found to be non-meritorious, goes to the heart of the safeguards mandated by the Rules and the Consent Order.” In Re: Sullivan, 95 - Elec. App. - 2 (KC) (July 14, 1995) (citing Puglisi, P-1074-LU64-ENG (November 25, 1991), aff’d 91 - Elec. App. - 242 (SA) (January 23, 1992), aff’d 88 Civ. 4486, slip op. (S.D.N.Y. 1992)). The Rules explicitly provide, in Article XIV, Section 1, that “[a]ny member . . . may file a protest with the Election Officer alleging non-compliance with the Rules, free from retaliation or threat of retaliation by any person or entity for such filing.”
Bradley Yeakel, et al.
June 6, 1996
Page 1
Because, as stated above, the filing of protests by members is a right protected by the Election Officer, a promise to file such a protest is not a threat of retaliation in violation of the Rules. This is true even if the promise to file was made in a public forum such as a local union meeting. The Election Appeals Master has stated that, “. . . a union officer, as well as a rank and file member, has the right to criticize other union members or officials, or defend his or her own policies and practices” in public meetings, even when responding to or criticizing the filing of protests with the Election Officer. See In Re: Darryl Sullivan,
95 - Elec. App. - 2 (KC) (July 14, 1995). Such speech does not constitute an impermissible threat and, therefore, does not violate the Rules.
Accordingly, the protest is DENIED.
2. P-777-LU773-PNJ: Allegations of Surveillance
The protesters allege that Mr. Yeakel’s use of photographs to support his allegations in Yeakel, supra, constitutes surveillance as defined by the Election Officer in Halberg, supra, and Giacumbo, supra. In those cases, the Election Officer defined “surveillance” as an observation of the activities of other members with the intent to coerce, interfere or harass any member in the exercise of the essential rights guaranteed by the Consent Decree and the Rules. Giacumbo, supra.
The investigation revealed that Mr. Yeakel was provided with several photographs, including photographs of the interior of several private offices in Local Union 773’s hall. He then provided these photographs to the Regional Coordinator investigating Yeakel, supra as evidence of the violations he alleged in that protest. There is no evidence to indicate that these photographs were produced or obtained in an effort to coerce, interfere or harass any member in the exercise of essential rights, or indeed to be used for any purpose other than to support his allegations in his prior protest.
Further, while the protesters contend that members are “generally forbidden from entering the individual offices without permission,” the investigation disclosed that the local union has not enforced a policy to prevent access to these offices, even when they are unoccupied. This fact indicates that no great security interest or measure of the local union was violated when the protested photographs were taken. Had such a policy been enforced, local union officers may have had a reasonable expectation of privacy that, if violated, could be coercive or harassing. The policy, however, was not enforced. The investigation indicates that members often had relatively unrestricted access to these offices. The protesters, therefore, cannot credibly argue now that the production of these photographs was a harassing or intimidating intrusion that violates the Rules.
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:
Bradley Yeakel, et al.
June 6, 1996
Page 1
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, D.C. 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
Peter V. Marks, Sr., Regional Coordinator
[1]Mr. Yeakel filed a protest with the Election Officer on May 8, 1996. See Yeakel,
P-762-LU773-PNJ (June 5, 1996).
[2]Both P-776-LU773-PNJ and P-777-LU773-PNJ were received by the Election Officer on May 20, 1996. On that day, letters acknowledging the receipt of these protests were sent to parties via UPS overnight delivery.