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April 16, 1999


The opinion of the court was delivered by: Edelstein, District Judge.



This opinion emanates from the voluntary settlement of an action commenced by the United States of America against, inter alia, the International Brotherhood of Teamsters ("IBT" or "the union") and the IBT's General Executive Board. The settlement is embodied in the voluntary consent order entered March 14, 1989 ("Consent Decree"). The goals of the Consent Decree are to rid the IBT of the hideous influence of organized crime and establish a culture of democracy within the union. The long history of this case has been set forth in this Court's numerous prior opinions. Accordingly, only those facts necessary for resolving the instant appeal shall be set forth.

This appeal arises out of a charge of retaliation that Eloise Hanson ("Hanson"), Annette Candelaria ("Candelaria") and Irene Mata ("Mata") (collectively the "Protestors") filed with the Office of the Election Officer in June of 1998 against Mary Lou Salmeron ("Salmeron"), Michael J. Riley ("Riley"), John Harren ("Harren"), and Don Thornsberg ("Thornsberg") (collectively "Local 986"). Pursuant to an investigation, the Election Officer found that the charges were true and issued a decision on February 8, 1999. See Decision of the Election Officer, dated February 8, 1999 in Election Office Case Nos. PR-147-LU9867-PNW ("EO Decision"). Local 986 appealed the EO Decision to the Election Appeals Master and on March 4, 1999, the Election Appeals Master issued a decision affirming the EO Decision. See 98 Elec.App. 428(KC) (March 4, 1999) ("EAM Decision"). Local 986 now appeals the EAM Decision to this Court.

The relevant facts regarding this matter commence on April 27, 1998, when the Election Officer issued a decision disqualifying Salmeron, a candidate for International Trustee, from participating in the rerun of the 1996 IBT Election. See, In re Moriarty, PR-056-LU986-EOH (Apr. 27, 1998), aff'd, 98 Elec.App. 353(KC) (June 3, 1998). The Election Officer found that Salmeron violated the 1996 IBT International Union Delegate and Officer Rerun Election Rules ("Election Rules") by coercing the clerical staff of Local 986 to donate money to support her campaign. The Election Officer based his decision, in part, on the sworn testimony of Hanson, Candelaria, and Matta.

Then, in June of 1998, Hanson, Candelaria, and Matta filed the aforementioned protest with the Election Officer alleging that certain officers and staff members of Local 986, including Salmeron, Riley, Harren, and Thornsberg, violated the Election Rules by retaliating against the Protestors for their cooperation with the Election Office's and Independent Review Board's ("IRB") investigation of Salmeron. Specifically, the Protestors alleged that Local 986 engaged in conduct intended to harass the Protestors, to isolate them at work, and to subject them to disparate treatment.

The Election Officer conducted an extensive investigation of the protest, in which he took statements from each of the Protestors, deposed several officers of Local 986, and reviewed hundreds of documents. In his decision, the Election Officer found that Local 986 "either fostered or permitted an atmosphere of intimidation, harassment and retaliation." EO Decision at 10. The Election Officer based his decision upon his specific findings of fact that Salmeron, Riley, Harren, and Thornsberg engaged in harassing conduct designed to retaliate against the Protestors for testifying against Salmeron. Id. at 11. The Election Officer determined that the following incidents occurred after the Protestors testified against Salmeron: (1) Riley disciplined Candelaria without just cause for possessing a tape recorder at the office; (2) Riley disseminated a letter critical of the Protestors to the entire office staff; (3) Candelaria's work load and assignments changed; (4) Candelaria was denied overtime; and (5) Thornsberg harassed the Protestors by referring to them as "evil spirits." Id. at 11.

As a remedy, the Election Officer directed that Local 986's officers, staff, and business agents "cease and desist" from discriminating or retaliating against the Protestors, from disseminating letters and memoranda to the staff critical of the Protestors, and from referring to the Protestors as "liars" (and other similar references) in connection with the Protestors testimony given to the IRB or the Election Officer. Id. at 12. Furthermore, the Election Officer ordered Riley to expunge certain reprimands and related documents from the Protestors' personnel files, and to sign and post a notice at Local 986 announcing the substance of the Election Officer's findings and remedy. Id.

Local 986 appealed the EO Decision to the Election Appeals Master. Election Appeals Master Kenneth Conboy considered the written submissions of the parties and held a hearing on February 25, 1999. On March 4, 1999, the Election Appeals Master issued his decision affirming the Election Officer's decision in all respects. EAM Decision. The Election Appeals Master concluded that the Election Officer's findings were not arbitrary and capricious and that the remedy imposed was "well considered and justified." Id. at 4.


Initially, this Court must note that Local 986 incorrectly asserts that this Court must conduct a de novo review of the Election Appeals Master's decision. Id. at 6. It is well established that this Court reviews the decisions of the Election Appeals Master under an "extremely deferential standard of review" and affords "great deference" to his or her determinations. United States v. IBT ("Carey Disqualification"), 156 F.3d 354, 364 (2d Cir. 1998). This Court considers the decisions of the Election Officer and the Election Appeals Master under the "same standard of review applicable to review of final federal agency action under the Administrative Procedures Act," and will not disturb their opinions unless they are "arbitrary and capricious." United States v. IBT ("Montante"), 1996 WL 315825, *4.

This Court now turns to a consideration of the arguments that Local 986 posits in its appeal. First, Local 986 contends that the EAM Decision should be reversed because the Election Appeals Master applied the wrong standard of review and failed to conduct an adequate examination of the evidence supporting the Election Officer's factual findings. Memorandum of Law on Behalf of Petitioners in Support of Their Application to Vacate the Decision of the Election Appeals Master and Dismiss the Protest ("Local 986 Br.") at 1. Second, Local 986 asserts that the Election Officer's factual findings are unsupported by, or contrary to, the evidence. Id. Third, Local 986 claims that the Election Officer failed to provide adequate notice of the charges under investigation and failed to take sworn statements from the Protestors. Id. Fourth, Local 986 maintains that the remedy the Election Officer imposed lacks support from the record and impermissibly intrudes upon the free speech rights of Local 986 members. Id.

I. Standard of Review

Local 986 claims that the Election Appeals Master "abdicated his responsibilities" by not conducting and adequate review of the Election Officer's decision. Local 986 Br. at 1. Local 986 mistakenly argues that the Election Appeals Master was required to review the underlying factual record and to render his own factual findings. Id. at 7. This is plainly wrong. Neither the Consent Decree nor the Election Rules require the Election Appeals Master to render independent findings of fact. Indeed, the order providing for the establishment of the Election Appeals Master provides that he or she shall review the determinations of the Election Officer under a deferential standard of review. See United States v. IBT, 88 Civ. 4486(DNE) (S.D.N.Y. Feb. 7, 1995) ...

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