Scaglia, 2017 ESD 374

OFFICE OF THE ELECTION SUPERVISOR

for the

INTERNATIONAL BROTHERHOOD OF TEAMSTERS

IN RE: JEFFERY SCAGLIA,                     )           Protest Decision 2017 ESD 374

                                                                        )           Issued: January 27, 2017

            Protestor.                                           )           OES Case No. P-326-071916-NE           

____________________________________)                      

Jeffery Scalia, member and elected alternate 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 118 secretary-treasurer Chris Toole violated the Rules by using union resources to criticize the Election Supervisor’s decision in Local Union Delegates and Alternate Delegates, 2016 ESD 256 (June 24, 2016), appeal withdrawn, 2016 EAM 27 (June 28, 2016).

            Election Supervisor representative Peter Marks investigated this protest.

Findings of Fact and Analysis

The delegates and alternate delegates election in Local Union 118 was a contest between the Clean Slate, comprised of rank-and-file members, and the Markwitz Slate, consisting largely of local union officers and employees.  The Clean Slate won all positions.  Thereafter, protests were filed by the members of the elected delegation alleging that secretary-treasurer Toole violated the Rules and our Advisory on payment of expenses for IBT convention delegates in several ways, viz., by booking air travel on separate flights at inconvenient times from the Buffalo NY airport rather than the airport in Rochester NY where the local union is headquartered; by placing impermissible conditions on use of the per diem required by the Advisory; and by placing impermissible conditions on payment by the local union of wage reimbursements to delegation members. 

After extensive investigation, we found that Toole’s selection of flights from Buffalo rather than Rochester was unreasonable and was done to exact retribution against the delegate slate that defeated Toole and his slate.  We determined that the travel costs for the Buffalo itineraries were either comparable to or more expensive than a similar itinerary that could have been secured for the entire delegation from the Rochester airport; were arranged from Buffalo separately for most members of the delegation at widely disparate flight times so as to require each member of the delegation to drive separately to Buffalo, even though this meant additional mileage, tolls and parking expense to the local union; and, for two members, the arrangements unfairly caused them to arrive at their Las Vegas hotel after midnight on the morning of the first day of the convention.

In reaching this conclusion, we resolved a credibility dispute between Toole and Chris Camelio, leader of the elected delegation, finding that Camelio had repeatedly requested a Rochester itinerary, and not crediting Toole’s statement that Camelio had requested flights from Buffalo. The written documentation from Camelio to Toole, in early April 2016 and again in early May, requested Rochester flights and listed alternative departure times, carriers, and prices.  Toole asserted that Camelio’s April 25 email showing Buffalo departure times and prices was his request that all travel be booked from Buffalo. Camelio said he produced this travel information only to show that Buffalo flights were similarly priced to those from Rochester and that Buffalo would be a more expensive travel option once the additional mileage and tolls expense were included. On this evidence, we credited Camelio.  

We further found that Toole impermissibly imposed multiple conditions on per diem allowances: first, that the allowance could be used only for breakfast, lunch and dinner; second, that the portion of a per diem not used one day could not be “rolled over” to the next; third, that every expenditure paid for with per diem allowance had to be documented with original receipts to the local union; fourth, that all unused per diem had to be returned to the local union; and fifth, that any failure of a delegate or alternate delegate to attend every session of the convention for its duration and for a delegate to fail to cast a secret ballot vote on nominations of candidates would prompt the local union to seek reimbursement of all expenses, travel, hotel, per diem, and wage reimbursement.  Our Advisory set a minimum per diem of $75; the local union had for a previous convention granted a per diem of $125 and carried that amount forward for the 2016 convention.  The Advisory declared that a local union may not require receipts for any expenditure of the first $75 daily and may not require return of any unused portion of that sum.  The Advisory permitted a local union that granted a higher per diem to condition the amount higher than $75 daily on production of receipts for and return of the unused portion of the excess amount.  The Advisory and case law both established that local unions may not seek to recover delegate expenses from members of a delegation it claims have failed in their duties as delegates or alternate delegates.

As remedy, we ordered Toole and the local union executive board to comply with the Rules  and the Advisory as explicated in that decision, to cease and desist from threats to take action to recover all expenses or take any other action in the event that any member fails to attend any session of the convention or to cast any vote that he has the right to cast, and to post a notice on all union worksite bulletin boards that informed the membership of the violations and our remedy for them.

Toole appealed our decision on June 25, 2016, the morning after it issued, asserting in a three-page submission that the statements of the protestors on which the decision relied were not factual, that the Election Supervisor incorrectly credited the protestors’ assertion that flights originating from Buffalo were Toole’s idea rather than the protestors, and that the decision improperly excused members of the delegation from accounting for their use of per diem and fulfilling their duties at the convention.  After our representative filed his pre-hearing submission on Toole’s appeal, Toole requested to withdraw the appeal, and the Election Appeals Master granted the request.  2016 EAM 27 (June 28, 2016).  Our decision on the original protests therefore because the final and binding determination of the facts of the dispute, the violations found, and the remedies ordered.

In his role as secretary-treasurer of Local Union 118, Toole distributed the notice required by our decision to all stewards and directed that it be posted.

Subsequently, he distributed to stewards a 78-page document that sought to refute the findings we made in Local Union Delegates and Alternate Delegates, providing selective documentation that substantiated his position, and expressing his opinion on our decision.  The two-page cover memo, dated July 1, 2016, began as follows:

Dear Teamster Local 118 Union Steward:

By now you have received a notice that must be posted concerning a decision that was rendered by the Office of the Election Supervisor.  Obviously I am disappointed that the OES did not rule to dismiss the complaint but rest assured that we have abided by their directives in the decision.

That being said, I feel compelled to offer you an explanation of events leading up to the OES decision.  I have enclosed the 59 page document with supporting evidence that was submitted to the OES in defense of the Local’s actions concerning the purchase of airfare, the payment of per diems, leave of absence requests and our expectation that these delegates and alternate delegates be held to the same standard that our Officers and Business Agents are held to.

Toole followed this introduction with seven delineated points addressing what he regarded as lack of communication or miscommunication between himself and the elected delegates, the Advisory’s requirement that mileage expense to and from the airport be paid by the local union, the requirement that baggage fees be reimbursed, and his contention that all delegates arrived in Las Vegas on Sunday, June 26.  On these two points, Toole presented his view of events, but mischaracterized or omitted portions of the OES analysis.  Thus, our decision directed the local union to reimburse round-trip baggage fees of $120 for each delegate.  Toole questioned this sum, contending that several airlines charge $25 for the first bag and $35 for the second.  “How does the OES come up with $120?,” he asked.  The answer is that airlines charge baggage fees each way, so a traveler checking two bags to Las Vegas and checking them again from Las Vegas would incur $120 in baggage fees.  The column heading in the table that explained this point was labeled “Round-trip baggage fees,” to emphasize that the sums lists were round-trip, not one-way. 

Regarding delegate attendance at the Convention, Toole wrote that while most of the delegation arrived in Las Vegas before 11 a.m. on Sunday, the last two “did not arrive till later that evening.  Still in time to register and attend the convention the following morning at 9am.”  In fact, the flight from Buffalo Toole booked for delegates Wells and Scaglia, scheduled to depart at 2:54 p.m. Sunday, was cancelled, forcing the two travelers to miss the connecting flight Toole had booked that arrived Las Vegas at 11:08 p.m. that day.  With rebooking, the delegates did not arrive at their hotel rooms in Las Vegas until after 3 a.m. Monday, June 27, long after convention registration was closed.  Without badges the delegates would have obtained at registration on Sunday, June 26, they were not permitted to enter the convention floor in time for the start of convention proceedings on Monday morning.  A Toole ally on the convention floor took a photo of the empty chairs assigned to these delegates, chairs they could not occupy without the badging that Toole effectively denied them by the flights he booked for them, and forwarded that picture to Toole.  The Markwitz slate for local union office then prepared and circulated a flyer containing the photo, under a headline that read in part “No Call No Show at Convention.”

Toole concluded by expressing his outrage that our ruling means he as secretary-treasurer “cannot expect to get an itemized accounting of [delegates’] receipts, I cannot expect to get a copy of the hotel bills, I cannot expect to get proof they attended any of the convention meetings or votes and I have no way of enforcing any of this when they refuse to give this Local the very backup and proof I am required to provide when spending the member’s [sic] money on travel and out of town Union business.”

Toole’s 78-page defense of his actions was distributed to stewards at local union expense.  The protest cited Article VII, Section 12(g) of the Rules, which prohibits retaliation for activity the Rules protects.  It argued as follows:

This packet was to explain the current executive board’s innocence for the charges they were found guilty of.  My concerns are the fact that the Local Union is still choosing to retaliate against us for defeating the current Executive Board in the most recent Delegates Election.  If in fact they were innocent of these charges, Christopher Toole filed an appeal then why did he not pursue the appeal he applied for?  Instead he chose to withdraw his appeal.  This action completely undermines the Election Supervisor’s decision. 

            Unlike the notice we ordered posted on union worksite bulletin boards in Local Union Delegates and Alternate Delegates, Toole’s 78-page distribution was not posted.  Some stewards placed the distribution where rank-and-file members could access it, while others did not.

            We analyze Toole’s distribution under two separate provisions of the Rules.  First, we review it under Article VII, Section 8, which prohibits use of union-financed publications “to support or attack any candidate or the candidacy of any person.”  Election Appeals Master Conboy held in Martin, 95 Elec App 18 (October 2, 1995), that “[a]n incumbent candidate has ‘a right and a responsibility,’ as a union officer, to ‘advise and report to the membership on issues of general concern’ to the membership, and is ‘entitled to use union publications to express [his] views.’”  As the text of the Rules provision makes clear, a union publication may not be used to support or attack a “candidate” or his/her “candidacy.”  The Rules define “candidate” as “any member who is actively seeking nomination or election for any Convention delegate or alternate delegate position or International officer position.”  Pope, 2000 EAD 4 (August 1, 2000), aff’d, 2000 EAM 3 (August 29, 2000).  Here, none of the members of Local Union 118’s elected delegation who were the subject of Toole’s lengthy publication were candidates at the time he made his distribution.  They had been elected and, indeed, had completed their service at the IBT convention by the time his publication was circulated.  Moreover, none of the members of the delegation were candidates for International office.  Accordingly, the provisions of Article VII, Section 8 did not regulate Toole’s statements concerning the convention expenses controversy because no one who was the subject of the statements was a candidate at the time they were made.  Although Local Union 118 was scheduled to conduct a local union officers election in the fall of 2016, that election is beyond the reach of the Rules’ prohibition on use of union publications to support or attack candidacies.  For these reasons, we find that Toole did not violate Article VII, Section 8 with his distribution.

            We also reject the protest’s assertion that Toole’s distribution constituted a violation of Article VII, Section 12(g) of the Rules, which bars retaliation for activity protected by the Rules.  To establish a violation, the evidence must show protected activity on the part of a member, adverse action against that member, and a causal link between the two.  Mere speech, which is what we find Toole’s publication was, does not constitute adverse action that is the prerequisite for a finding of retaliation under this provision.

            For these reasons, we DENY this 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 374

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