Protest Decisions

              June 12, 1996

VIA UPS OVERNIGHT

Pat Miraglio, Secretary-Treasurer

Teamsters Local Union 439

1531 E. Fremont Street

Stockton, CA 95201

Kathryn Naylor

Office of the Election Officer

400 N. Capitol Street, N.W., Suite 855

Washington, DC 20001

Re:  Election Office Case No. P-793-LU439-EOH

Gentlepersons:

Pat Miraglio, secretary-treasurer of Local Union 439, filed a protest pursuant to

Article XIV, Section 2(b) of the Rules for the 1995-1996 IBT International Union Delegate and Officer Election (“Rules”) against Election Officer Representative Kathryn Naylor.  The protester alleges that Ms. Naylor displayed bias against him and in favor of Philip Rushing, a delegate from Local Union 439 who, after consulting with Ms. Naylor, filed a protest against Mr. Miraglio concerning the arrangements he had made for the travel, hotel and payment of expenses to Local Union 439 delegates attending the 1996 IBT International Convention (the “Convention”).

Mr. Miraglio alleges that Ms. Naylor was the only person who had knowledge of the arrangements he had made for the delegates’ travel and hotel accommodations, and his intention regarding the per diem to be paid to the delegates.  The protester contends that, by relaying to the protester her information concerning these matters, Ms. Naylor instigated the protest and assisted the protester, thereby acting with bias.

Protest Chief Benetta Mansfield supervised the investigation of the protest.

Pat Miraglio

June 12, 1996

Page 1

The Convention will be held in Philadelphia, Pennsylvania, beginning on Monday,

July 15, 1996 and concluding on Friday, June 19, 1996.  Article IV, Section 3(a) of the Rules provides that local unions shall be required to send and pay the expenses, or make arrangements for such payment by agreement with other subordinate bodies, of all the delegates to which the local union is entitled at the Convention.  The Election Officer issued the Advisory Regarding Convention Expenses (the “Advisory”) on May 2, 1996 and distributed copies of it to local unions and to the International union.  The Advisory provides:

The Election Officer will consider a seven-day (7) period from either Saturday, July 13, 1996 through Friday, July 19, 1996, or Sunday, July 14, 1996 through Saturday, July 20, 1996, as the period of the local union’s per diem expense obligation.  The local union is also responsible for hotel costs for six (6) nights.

Additionally, pursuant to the Advisory, the local union is also responsible for the travel expenses of its delegates and, if applicable, its alternates, to and from Philadelphia.

On May 28, 1996, Mr. Rushing telephoned Ms. Naylor to advise her that he and the other delegates were having difficulty obtaining complete and definite information concerning the travel and hotel arrangements made by Local Union 439 for the delegates’ attendance at the convention.  He advised Ms. Naylor that he had heard from another local union member that the delegates would be leaving Sacramento, California on Saturday, July 13, 1996 at about 9:00 p.m. and would return on Friday, July 19, 1996 on a 10:00 p.m. flight, arriving in California around 3:00 a.m. the following morning.  Mr. Rushing complained that the flight times were inconvenient and questioned whether the flights could be changed without incurring a penalty.  He expressed his concern that the local union delegates had not been consulted on the arrangements.  Ms. Naylor advised Mr. Rushing that the Rules do not require a local union to consult with the delegates on the travel and hotel arrangements.  She also told him that she would contact Mr. Miraglio to find out what arrangements had been made.

On the same day, Ms. Naylor called Mr. Miraglio.  She advised him that the delegates had not received complete information regarding the flight arrangements and hotel reservations  made for their attendance at the convention and asked him what arrangements had been made.  Mr. Miraglio advised her that the delegates were scheduled to depart Sacramento, California on Saturday, July 13, 1996 at 9:09 p.m., and to arrive in Philadelphia on Sunday, July 14, 1996 at 6:48 a.m.  He further advised that the delegates were scheduled to depart Philadelphia on July 19, 1996 at 9:55 p.m. and arrive in Sacramento at 3:00 a.m. the following morning.  Mr. Miraglio stated that he had not communicated with the delegates regarding the travel and hotel arrangements because he not yet received confirmation from the hotel.  At Ms. Naylor’s request, Mr. Miraglio agreed to find out if the airline tickets could be changed without incurring a penalty.

Ms. Naylor called Mr. Rushing.  She told him the flight reservations made by

Pat Miraglio

June 12, 1996

Page 1

Mr. Miraglio and that Mr. Miraglio had stated his intention to pay per diem for six days although the Advisory required the payment of seven days per diem.  They discussed the requirement in the Advisory that the local union pay lost wages to the delegates.  Ms. Naylor agreed to send Mr. Rushing a copy of the Advisory that day by telecopier.

Ms. Naylor and Mr. Miraglio spoke again after he had consulted with the travel agent used by the local union.  Mr. Miraglio advised Ms. Naylor that the tickets were nonrefundable and could be changed by paying a penalty and the difference in fare for other flights:  a total additional charge of approximately $135.  He stated that if the delegates wanted to change their reservations they could, but would have to pay additional charges themselves. 

Ms. Naylor responded that he was correct, but that the delegates could cover any additional charges with the per diem paid them by the local union for attendance at the Convention. 

Mr. Miraglio said that this would not be allowed.  He said that he was going to give each delegate $360 as their per diem and they would have to account for every expenditure with receipts.  Ms. Naylor responded that the Election Office required the local union to pay delegates $60 per diem to the delegates for seven days, totaling $420, regardless of whether delegates stay in Philadelphia for seven days.  She further advised him that under the Advisory, the Election Officer did not require delegates to retain receipts to support the per diem, or to return any unused part of their per diem.  Mr. Miraglio restated that he was only advancing $360, not $420.  He stated again that the delegates would have to submit receipts and return any unspent money.  Ms. Naylor told him that she did not wish to argue any further on the subject, and that the Election Office had jurisdiction over this matter.

Mr. Rushing called Ms. Naylor the next day, May 29, 1996, after he read the Advisory.  He told her that the flight arrangements made by the local union only allowed for five nights stay in Philadelphia although the Advisory required the local union to be responsible for hotel costs for six nights.  He asked Ms. Naylor what to do.  She advised him to file a protest.  Mr. Rushing filed his protest on that day, protesting the proposal by the local union to pay five nights hotel accommodations, and to pay six days per diem instead of seven days.[1] 

On May 30, 1996, Mr. Rushing called Ms. Naylor and told her that he had spoken with Mr. Miraglio who advised that he had made reservations for the delegates at the Clarion Hotel in New Jersey.  Mr. Rushing told Ms. Naylor that he was unable to get any confirmation from the hotel that the reservations had been made.  Mr. Rushing asked

Ms. Naylor if he should file a separate protest on this.  She told him that the issue could be considered as part of the protest he had filed.

The following day, Ms. Naylor advised Mr. Rushing to notify Mr. Miraglio that

Mr. Rushing was going to make hotel reservations for the Local Union 439 delegates.  She further advised him to request assistance from the IBT Convention Housing Office in making the reservations.

Pat Miraglio

June 12, 1996

Page 1

Ms. Naylor spoke with Mr. Miraglio on May 31, 1996 to investigate the protest filed by Mr. Rushing.  Mr. Miraglio advised Ms. Naylor in this conversation that while the plane reservations he had made for the delegates required five nights stay in Philadelphia, the local union was going to pay for six nights hotel beginning July 13, 1996 so that the delegates could check into their rooms when they arrive early Sunday morning on July 14.  He told

Ms. Naylor that he was not sure what he was going to do about the per diem and would review the Advisory.  He also told Ms. Naylor that the delegates would be staying at the Holiday Inn at Independence Mall in Philadelphia.  Ms. Naylor confirmed these hotel reservations with the IBT Convention Housing Office.

In Rushing, supra, the Election Officer decided that the flight and hotel arrangements made by Mr. Miraglio complied with the Rules.  However, the Election Officer held that the plan of Local Union 439 to pay delegates per diem for six days, instead of seven days, violated the Rules.  Therefore, she granted the protest with respect to the per diem payment and denied the protest in all other respects.  She ordered Local Union 439 to advance per diem for seven days ($420) to each delegate no later than July 7, 1996.

Pursuant to Article I of the Rules, the Election Officer has authority “to take all necessary actions in supervising the election process to insure fair, honest, open and informed elections.”  Ms. Naylor assists the Election Officer by advising local unions of their obligations under the Rules pertaining to Convention expenses by responding to questions from union members about requirements and mediating any conflicts concerning Convention expenses, with the goal of achieving compliance with the Rules.

Mr. Miraglio complains that a protest resulted after he told Ms. Naylor his intentions concerning the travel arrangements, hotel reservations and expense payments to the Convention delegates, although he had not communicated this information to anyone in the union.  The Election Officer finds that Mr. Rushing found out complete information concerning these matters though the assistance of Ms. Naylor.  By ascertaining whether Local Union 439 intended to comply with the Rules and the Advisory, with respect to the Convention expenses, Ms. Naylor furthered the goals of the Election Officer, as stated in the Rules.  Ms. Naylor’s investigation and recommendation to the protester that he protest proposed arrangements made by Local Union 439 concerning Convention expenses resulted in clarification of the responsibility of the local union with regard to these matters.  Her actions were constructive, completely proper and unbiased.

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:

Pat Miraglio

June 12, 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, 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