Delcour, 2017 ESD 373

OFFICE OF THE ELECTION SUPERVISOR

for the

INTERNATIONAL BROTHERHOOD OF TEAMSTERS

IN RE: RON DELCOUR,                            )           Protest Decision 2017 ESD 373

                                                                        )           Issued: January 27, 2017

            Protestor.                                           )           OES Case No. P-237-032216-NE           

____________________________________)                      

Ron Delcour, member and elected delegate of Local Union 118, filed a pre-election protest pursuant to Article XIII, Section 2(b) of the Rules for the 2015-2016 IBT International Union Delegate and Officer Election (“Rules”).  The protest alleged that local union business agent Mike Maynard threatened Delcour, in violation of the Rules.

            Election Supervisor representative Peter Marks investigated this protest.

Findings of Fact and Analysis

Protestor Delcour was a member of the Clean Slate, a slate of rank-and-file candidates that competed in Local Union 118’s delegates and alternate delegates election.  They defeated the Markwitz slate, comprised in the main of local union officers and employees.  The tally of ballots was completed on February 27, 2016.

Some two weeks after the election was concluded, the Clean Slate sent a postcard at its slate members’ expense to the entire membership of Local Union 118, using the mailhouse that had been designated to distribute campaign literature during the delegates and alternate delegates election campaign.  On one side, the postcard read:

thank you “we won!!!”

the clean slate

On the reverse, the postcard read:

Hopefully, this Postcard will serve 2 purposes: First, we want to express our sincere thanks to all of you who supported the “Clean Slate” in our Local’s recent Delegates Election.  Without your support, our victory in this Election would not have been possible.  Second, we want the Membership to know that we will not rest until we reach our ultimate goal: Defeating our current corrupt and self serving Executive Board in our Local’s General election, which will be held this coming November.  Thank you again for your continued support!

            Chris Toole, local union secretary-treasurer, filed a protest alleging that the Clean Slate’s use of the mailing list for a post-election mailing violated the Rules.  Four days after Toole filed the protest, and before a decision was rendered on it, Local Union 118 sent a letter to the entire membership of Local Union 118 at local union expense, criticizing the Clean Slate’s postcard as a misuse of the mailing list and touting the accomplishments of the incumbent local union administration.  The local union letter prompted a protest from a member of the Clean Slate.

            We consolidated the protests and decided them in Toole & Scaglia, 2016 ESD 272 (July 15, 2016), holding that the postcard and the letter both constituted unauthorized uses of the local union mailing list and therefore both violated the Rules.  We ordered both sides to cease and desist from using the mailhouse for further communications of this type.  We further ordered Markwitz, principal officer of the local union and the signer of the letter, to reimburse the local union for the cost of the letter, which we calculated at $3,593.70.  We permitted him to receive contributions toward that obligation from other members of his slate.  Finally, we ordered a notice posting on all union worksite bulletin boards, specifying the Rules violations found and the remedies ordered.  The Election Appeals Master affirmed the Election Supervisor’s decision, 2016 EAM 28 (August 5, 2016), modifying the reimbursement requirement to $3,193.93, without objection from the Election Supervisor.

            The instant protest was filed one day after Toole filed his protest about the postcard.  The protestor here, Delcour, is employed as a mechanic in the transportation department of Greece Central School District.  The business agent responsible for the bargaining unit, Mike Maynard, is also the local union vice president.  The protest alleged that on March 22, 2016, Maynard came into the bus garage where Delcour was working.  According to Delcour, Maynard was very upset with Delcour and yelled at him about the postcard mailing and, in particular, the postcard’s claim that the local union executive board, of which Maynard was a member, was “corrupt.”  Maynard’s words, temperament, tone of voice, and aggressive physical behavior demonstrated that he took exception to the corruption accusation.  According to Delcour, Maynard threatened Delcour’s job because of the mailing.

            Maynard told our representative that he did not threaten Delcour’s job.  Instead, he said he engaged in “general conversation” with Delcour, the subject of which he said he could not remember.  Maynard conceded to our representative, however, that he was upset about the postcard, which he received the previous day.

            The protest asserted that Maynard retaliated against Delcour because of Delcour’s protected activity under the Rules.  The Rules protect the right of members to “participate in campaign activities, including the right to run for office, to support or oppose any candidate, to aid or campaign for any candidate, and to make personal campaign contributions” in local union delegates and alternate delegates elections and in the International officers election.  Article VII, Section 12(a).  The Clean Slate’s postcard, mailed more than two weeks after the conclusion of the delegates election, stated the slate’s goal of “[d]efeating our current corrupt and self serving Executive Board in our Local’s General election, which will be held this coming November.”  We credit Delcour’s account of Maynard’s conduct and find that it was a reaction to the language the Clean Slate used in its postcard, in particular, the “corrupt” term.  However, just as we held in Toole & Scaglia that the postcard and responsive local union letter were not protected communications under the Rules because they came after the delegates election, when no one was a “candidate” within the meaning of the Rules, we find that the campaign message contained in the postcard was directed to the local union officers election, over which we have no jurisdiction.  That campaign message does not fall with the rights of members that the Rules protect, because the Rules govern only the delegates and International officers elections.  Because the postcard was unprotected by the Rules, the prohibition on retaliation for protected activity found in Article VII, Section 12(g) cannot be invoked.

            Although we conclude that Maynard’s behavior was inappropriate, unwarranted, rude, impetuous, and threatening, we find it did not violate the Rules because it was motivated by activity the Rules do not protect.  Accordingly, we DENY the protest.

Any interested party not satisfied with this determination may request a hearing before the Election Appeals Master within two (2) working days of receipt of this decision.  The parties are reminded that, absent extraordinary circumstances, no party may rely upon evidence that was not presented to the Office of the Election Supervisor in any such appeal.  Requests for a hearing shall be made in writing, shall specify the basis for the appeal, and shall be served upon:

Kathleen A. Roberts

Election Appeals Master

JAMS

620 Eighth Avenue, 34^th floor

New York, NY 10018

kroberts@jamsadr.com

Copies of the request for hearing must be served upon the parties, as well as upon the Election Supervisor for the International Brotherhood of Teamsters, 1050 17^th Street, N.W., Suite 375, Washington, D.C. 20036, all within the time prescribed above.  A copy of the protest must accompany the request for hearing.

                                                                        Richard W. Mark

                                                                        Election Supervisor

cc:       Kathleen A. Roberts

            2017 ESD 373

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