IN RE: DAVID THORNSBERRY
Protest Decision 2000 EAD 48
Issued: November 17, 2000
OEA Case No. PR071701MW
See also Election Appeals Master decision 00 EAM 12 (KC)
David Thornsberry, a member of Local Union 89, filed this pre-election protest pursuant to Article XIII, Section 2(b) of the Rules for the 2000-2001 IBT International Union Delegate and Officer Election ("Rules"). The protest alleges that business agents of Local Union 89 violated the Rules by soliciting accreditation signatures for the Hoffa campaign inside the local union hall during business hours.
Election Administrator representative Jeffrey Ellison investigated this protest.
Findings of Fact
Local Union 89 services a jurisdiction in and around Louisville, Kentucky. It employs Avral Thompson and Keith Phillips as business agents for its carhaul units and Herman Veltman and Kevin Oliva as business agents for its freight units. The four agents share a large room in the union hall as their office and conference space.
Jim Laslie, a member of the local and a steward at the Holland freight unit, went to the union hall in early July 2000 to see a freight BA about union business. While Laslie was waiting in the office of the four BAs, carhaul agent Thompson addressed him: "Here are petitions we're getting signed for Mr. Hoffa and the members of his slate." Thompson offered the petitions to Laslie for signing. Laslie replied that he did not care to sign the petitions. Hearing this, freight BA Veltman asked, "You're not a Hoffa supporter?" Laslie responded, "No, not really." According to Laslie, both Thompson and Veltman were otherwise engaged in their agent functions when the exchange took place. Both agents deny the exchange occurred.
Less than a week later, Laslie returned to the hall with Thomas Gibson, another steward from the Holland unit. The purpose of the trip was a meeting with Veltman and Kevin Oliva, the two freight BAs, to discuss grievances pending at Holland. According to Gibson, as soon as the four individuals were seated to begin the meeting, BA Oliva produced petitions of the Hoffa slate. In Veltman's presence and without his objection, Oliva showed the petitions to Gibson and Laslie, asking whether they had already signed such petitions and, if they had not, would they do so. At this request, Gibson chuckled and said, "Sure, I'll sign the sumbitch." He signed a petition for each of the Hoffa slate members. Laslie did likewise. Laslie then asked if the BAs were passing around petitions for the Leedham slate as well. Oliva laughed at this question, saying, "Well, I guess we could," but indicating with his manner that they were not and would not be doing so. The meeting then got underway.
Veltman categorically denied that he observed any solicitation of accreditation signatures in the union hall. Oliva conceded that he may have asked members in the union hall to sign petitions; he did not specifically admit to the exchange reported by Gibson and Laslie.
On July 8, Veltman and Oliva conducted a stewards' election for the Yellow Freight unit at the union hall. Three members attending this meeting signed Veltman's petitions for the Hoffa slate that day. Veltman stated he was aware of the signing but did not ask any member to sign. Rather, according to Veltman, a member observed the petitions on Veltman's desk and asked if he could sign. Veltman states that he told the member he was not asking the member to sign but that the member could sign if he desired. J.D. Maples, one of the Yellow Freight members who signed that day, said he was told while at the meeting that the petitions were available for signing. He did not corroborate Veltman's statements that the members were not asked to sign.
In denying the exchange with Laslie recounted above, carhaul agent Thompson stated that he was present only once when he observed Hoffa petitions being signed at the union hall. He stated that he conducted a meeting of several members who recently had lost their jobs; the purpose of the meeting was to attempt to find other employment for them under the jurisdiction of the local. As the meeting broke for lunch, one of the attendees observed the petitions on Thompson's desk. According to Thompson, the member asked what the petitions were and whether he could sign them. Thompson replied that the member could indeed sign the petitions. Thompson recalled that all of those attending the meeting, including the steward who was with them, signed the petitions.
On these facts, we credit the statements of Gibson, Laslie and Maples over the conflicting statements of agents Veltman and Oliva. In doing so, we note the specificity with which Gibson and Laslie recalled their exchange with Veltman and Oliva; this recounting contrasts sharply with the vague denials offered by the agents. Corroboration for Gibson and Laslie is provided by the petitions submitted by the Hoffa campaign, which show that the two stewards signed one after the other. Also appearing on the same petitions are the signatures of the Yellow Freight employees referenced above, which Veltman concedes were signed in the union hall.
Further, we credit the statement of Laslie over the conflicting statement of Thompson. A review of the petitions does not support Thompson's statements concerning the one occasion he claims he observed petitions being signed in the hall. Only two of the four individuals who Thompson alleges signed actually did sign the petitions. In addition, those signatures appeared on separate petitions under circumstances indicating that they were not signed on the same occasion.
Our investigation also uncovered an issue with respect to certification of petition signatures. The signatures on the petitions signed by Gibson, Laslie, and Maples were attested to not by Oliva or Veltman but by local president Fred Zuckerman. The statement of attestation printed on the petition declares, inter alia, that the attester "certif[ies] that the signatures on this sheet were signed in my presence and are genuine." Gibson, Laslie, Maples, Oliva and Veltman all stated that Zuckerman was not present when the signatures were solicited and obtained. Zuckerman could offer no explanation for attesting to the genuineness of signatures he did not witness.
Zuckerman further stated that he distributed the accreditation petitions to officers and employees of the local and instructed them to get the petitions signed; however, he did not give any instructions as to how, when or under what circumstances signatures could permissibly be solicited. After the protest was received, Zuckerman states that he advised his subordinates only to solicit signatures outside the union hall on personal time.
Carolin Washburn, secretary-treasurer of the local, stated that the local has a longstanding policy barring campaign activity inside the union hall.
Analysis
Because we find that accreditation signatures were solicited and obtained inside the union hall by business agents on union-paid time under circumstances that discriminated in favor of the Hoffa campaign, we grant the protest. Moreover, we also find that local president Zuckerman violated the Rules by attesting to the genuineness of signatures he did not witness.
The activity of soliciting signatures on accreditation petitions constitutes "campaigning" under the Rules because it advocates the nomination and election of a candidate. See, e.g., Caffrey, P47 (10/19/95).
Campaigning inside the union hall may permissibly occur only where a preexisting right to engage in such activity exists.[1] No such right exists at Local 89's hall, therefore the solicitation of accreditation signatures there violates the Rules.[2] Wright, P492 (3/6/96); Stefanski, P505 (3/6/96); and Fiori, P618 (3/18/96).
We find that the solicitation of signatures by the agents also occurred on time paid for by the union. This too violates the Rules. Olson, P172 (11/1/95). No contention was advanced or established that the agents were on personal time, and the facts establish that the solicitations occurred while the agents were engaged in their duties as agents.
Although the contention has not been raised that the solicitation of signatures on time paid for by the union was permissible because it was incidental to union business,[3] the facts establish this was not the case. The agents here engaged in a pattern of solicitation over the course of a number of days. While past decisions of Election Officers have excused campaign activity of short duration and isolated nature,[4] the Rules' exception for campaign conduct incidental to legitimate union business will not excuse a pattern of such campaign activity on union-paid time. To find otherwise would have the exception swallow the rule.[5]In reaching these findings, we observe that the campaign activity here was conducted on a discriminatory basis.[6] No notice was provided to other candidates or campaigns of the availability of the union hall or personnel, at candidate expense, for the circulation of accreditation petitions. This failure constitutes an independent violation of the Rules. Halberg, P89 (9/7/95).
Finally, local president Zuckerman violated the Rules by attesting to signatures he did not witness.[7] The purpose of the Rule requiring certification of petition signatures is to serve as a check against fraud; that purpose is circumvented entirely if the individual certifying the signatures has not witnessed them in the first instance.
For all of these reasons, the protest is GRANTED.
Remedy
When the Election Administrator determines that the Rules have been violated, he "may take whatever remedial action is appropriate". Article XIII, Section 4. In fashioning the appropriate remedy, the Election Administrator views the nature and seriousness of the violation as well as its potential for interfering with the election process. Based upon the foregoing, the Election Administrator orders the following:
1. Local Union 89 shall immediately cease and desist from permitting and authorizing the use of Local Union funds, facilities, and personnel to support the candidacy of candidates affiliated with the Hoffa Slate.
2. The officers, agents and employees of Local Union 89 shall immediately cease and desist from certifying signatures on accreditation petitions as genuine where the certifying individual has not witnessed the signing of the signatures.
3. Within five (5) days of receipt of this decision, the local shall have the attached "Notice To Local Union 89 Members and Employees" posted at the local union office. Within that same time period, the local shall post the attached "Notice To Local Union 89 Members and Employees" on all bulletin boards at the local's worksites.
4. Within two (2) days of making the postings required in Paragraph 3 above, the local union must submit an affidavit to the Election Administrator attesting to its compliance with this order.
An order of the election Administrator, unless otherwise stayed, takes immediate effect against a party found to be in violation of the Rules. Lopez, 96 EAM 73.
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 Administrator 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:
Kenneth Conboy
Election Appeals Master
Latham & Watkins
885 Third Avenue, Suite 1000
New York, New York 10022
Fax: 212.751.4864
Copies of the request for hearing must be served upon all other parties, as well as upon the Election Administrator for the International Brotherhood of Teamsters, 727 15th Street, NW, 10th floor, Washington, D.C. 20005, all within the time period prescribed above. A copy of the protest must accompany the request for hearing.
William A. Wertheimer, Jr.
William A. Wertheimer, Jr.
Election Administrator
cc: Kenneth Conboy
Jeffrey Ellison
NOTICE TO TEAMSTERS LOCAL UNION 89 MEMBERS AND EMPLOYEES
The Rules for the 2000-2001 IBT International Union Delegate and Officer Election ("Rules") prohibit your Local Union from directly or indirectly using union funds or other things of value to promote the candidacy of any individual for any delegate or International officer position. This prohibition includes the use of union funds, facilities, equipment, stationery, and personnel. The only exception to this prohibition is if the local union is compensated at fair market value for its assistance and all candidates are provided equal access to the same assistance and are advised in advance, in writing, of the availability of such assistance to their campaign.
The Election Administrator will not permit any such improper use of your Local Union's funds.
The Election Administrator has concluded that such an improper usage of Local Union funds has occurred and has ordered the Local Union to cease and desist from permitting and authorizing the use of Local Union funds and facilities to support the candidacy of candidates affiliated with the Hoffa Slate.
The Rules also prohibit an individual from certifying the authenticity of signatures on accreditation petitions where that individual has not witnessed the signing of the signatures. The Election Administrator has concluded that such an improper certification of signatures has occurred and has ordered the Local Union to cease and desist from such conduct.
Any protest you have regarding your rights under the Rules or any conduct by any person or entity which violates the Rulesshould be filed with William A. Wertheimer, Jr., Office of the Election Administrator, 727 15th Street, NW, 10th floor, Washington DC 20005, telephone 800-565-VOTE, telecopier (202) 454-1501.
___________________________
Fred Zuckerman, President
IBT Local 89
This is an official notice and must remain posted for thirty (30) consecutive days from the day of initial posting, and must not be altered, defaced or covered by any other material.
Prepared and approved by William A. Wertheimer, Jr., Election Administrator for the International Brotherhood of Teamsters.
DISTRIBUTION LIST VIA UPS NEXT DAY AIR:
Patrick Szymanski
IBT General Counsel
25 Louisiana Ave. NW
Washington, DC 20001
Bradley T. Raymond
Finkel, Whitefield, Selik,
Raymond, Ferrara & Feldman
32300 Northwestern Highway
Suite 200
Farmington Hills, MI 48334
J. Douglas Korney
Korney & Heldt
30700 Telegraph Road
Suite 1551
Bingham Farms, MI 48025
Barbara Harvey
645 Griswold, Suite 1800
Detroit, MI 48226
Tom Leedham
18763 South Highway 211
Molalla, OR 97038
Betty Grdina
Yablonski, Both & Edelman
Suite 800
1140 Connecticut Ave., NW
Washington, D.C. 20036
David Thornsberry
10403 Truman Way
Louisville, KY 40299
Fred Zuckerman, President
Local Union 89
3813 Taylor Blvd.
Louisville, KY 40215
[1] Article VII, Section 11(d) prohibits the placement of restrictions "upon candidates' or members' preexisting rights to solicit support, distribute leaflets or literature, conduct campaign rallies, hold fund-raising events or engage in similar activities on … Union premises."
[2] Article XI, Sections 1(b)(3) and (6) of the Rules prohibit the use, directly or indirectly, of union funds or other things of value to promote the candidacy of any individual. This prohibition includes the use of union funds, facilities, equipment, stationery, and personnel. Article VII, Section 11(b) permits union officers and employees to participate in campaign activities, including the open support of a candidate, provided "such campaigning … not involve the expenditure of Union funds," including "campaign[ing] on time that is paid for by the Union." However, "[c]ampaigning incidental to regular Union business is not … violative of this section."
[3] See footnote 2.
[4] See Newhouse, P253 (1/4/96)(local union staffperson who solicited a member to circulate candidate accreditation petitions during the course of transacting legitimate union business while on union time did not violate the Rules; Mihalow, P467 (3/7/96), aff'd 96 EAM 135 (3/20/96) (delivery of campaign flyers to member by business agent headed into a safety meeting with the employer did not violate the Rules); and Dillon, P467 (3/4/91) (short campaign-related conversation between business agents and stewards which occurred prior to commencement of contract negotiations do not violate the Rules.)
[5] We note further that no exception for "incidental" campaign conduct exists for campaigning inside the union hall where, as here, such activity is uniformly prohibited.
[6] Article VII, Section 11(c) bars the use of union funds, facilities, personnel, and the like to assist in campaigning "unless the Union is reimbursed at fair market value for such assistance, and unless all candidates are provided equal access to such assistance and are notified in advance, in writing, of the availability of such assistance."
[7] Article X, Section 2(a)(3) requires that accreditation petitions include a statement of the circulator "certify[ing] the validity and accuracy of the petition's contents."