Protest Decisions

IN RE: DIANA FRANKEN,
Protest Decision 2000 EAD 70
Issued: December 21, 2000
OEA Case Nos. PR101101WE & PR101103WE

Diana Franken, a member of Local 670, filed pre-election protests pursuant to Article XIII, Section 2(b) of the Rules for the 2000-2001 IBT International Union Delegate and Officer Election ("Rules")against delegate candidates David Silbernagel and Melvin Lambert. The protests alleges that Silbernagel and Lambert violated Article XI, Section 1(b)(4) and Article VII, Section 1(b) of the Rules by receiving prohibited in-kind and financial contributions from retired member Larry Kale and by receiving a worksite list from Kale, a former employee of Local 670, rather than from the local.

Election Administrator representative Lisa Taylor investigated the protest.

Findings of Fact

Franken is the incumbent secretary-treasurer of Local 670. Silbernagel and Lambert are International convention delegate candidates, as is Franken. Kale is a former business representative from Local 670, who retired in January 1999. Franken claims that when Kale was a business representative and the local's secretary treasurer died, Kale wanted that job but that the executive board appointed Franken instead. Franken claims that since then Kale has held a grudge against her and the local.

Franken claims that Silbernagel has admitted to Local 670 members that Kale paid for his delegate campaign. Franken also points to the misspelling of Silbernagel's name on his joint handouts with Lambert as evidence of this.

Protestor witness Frank Stuckart told our investigator that on October 19, 2000 Silbernagel admitted to him that Kale had contacted him about helping with his campaign and that Kale inquired as to how much it was worth to Silbernagel. According to Stuckart, Silbernagel stated that he offered to pay Kale $50 for his efforts and that Kale accepted this amount. Stuckart claimed that later Silbernagel showed him a copy of the flyer that he later posted on Local 670's bulletin board in the main lunchroom at NorPac plant 1.

Protestor witness Bernie Stuckart, who is also a delegate candidate, recalled a conversation with Silbernagel about the misspelling of Silbernagel's name on his flyer, in which Silbernagel admitted that he had just passed out the flyer. Stuckart could not remember if Silbernagel mentioned Kale. Stuckart also stated that he spoke with Kale over the phone on another occasion and asked him whether he was responsible for the flyers, and that Kale admitted that he played a part in the flyers but was not alone.

Although Bernie Stuckart, Silbernagel and Lambert all ran for delegate, the Silbernagel/Lambert flyer encouraged members to vote for Stuckart and all other candidates except Franken and Betty Buckel. Franken noted that the Silbernagel/Lambert handouts attacked both herself and Buckel. Franken claims that the handouts revealed information about complaints concerning Buckel about which Silbernagel and Lambert had no personal knowledge. She believes that this information was given to them by Kale, but offered no evidence in support of her supposition. Silbernagel stated that these comments on the flyer were general knowledge.

Franken claims that Lambert stated to members that he had worksite lists. Franken stated that the local did not release these lists to either Lambert or Silbernagel. Franken believes that the list came from Kale, who she believes took it with him when he retired from the office.[1]  Local 670 has only released the lists to the Election Administrator's office and to the Leedham campaign.

Franken stated that local 670 business representatives, while posting notices for the delegate elections, noticed the Silbernagel/Lambert handouts on the wall and on the lunchroom tables even on obscure bulleting boards that Franken claimed only a person with the worksite lists would know about. Franken stated that no employer gave permission to post campaign literature or distribute materials on their property and that members saw Silbernagel and/or Kale posting handouts on in-plant bulletin boards.

Silbernagel states that he split the costs of his flyers with Lambert. Silbernagel submitted a copy of a receipt from Office Depot for envelopes, copy services and in-house business services on October 5, 2000, for $66.77. We credit Silbernagel's claim that he paid for these services. Silbernagel further states that his campaign received no contributions, and no credible evidence has been offered to contradict this. He further denies paying any money to Kale for his services. Kale corroborates this, and for that reason we credit Silbernagel over Frank Stuckart.

Silbernagel stated that Kale and himself were never friends and had prior disputes over union issues. However, he states that Kale approached him after he declared his candidacy and offered to help with the composition and distribution of his flyers. Silbernagel claims that Kale, because of the fact that he was a business representative, knew where to go to hand out the brochures. Silbernagel handed out brochures at NorPac, where he works. Silbernagel denies that he told any member that Kale was financing his campaign.

Lambert stated that Silbernagel contacted him because both members were running as independent candidates for delegate elections. He stated that he never met Silbernagel before this and has had limited contact with him. Lambert claims that he has never really had any contact with Franken or Kale. Lambert stated that Silbernagel proposed that they create the flyers as a joint venture and split the costs. Lambert paid Silbernagel $33.38, covering half the cost of the flyers. Other than his joint financing of the flyers with Silbernagel, Lambert claims he received no campaign contributions.

Kale also denied that he either financed the Silbernagel/Lambert campaign or received money from either candidate for his services. Kale stated that he saw to it that the flyers were printed, and helped with their distribution. According to Kale, his assistance with distribution was limited to his distribution of the flyers to shop stewards and members for their further distribution at the workplace. Silbernagel denied that he had copies of worksite lists, and denies that he stole such lists from the local, as Franken has claimed. He says that he did not need them because Kale had personal knowledge of the worksites from his prior employment with the local.

Lambert also denied having a worksite list. He claims that he did not post the flyers and has no knowledge of what happened to the flyers after they were printed. He did notice a flyer laying on a worktable at his job at UPS. Lambert stated that numerous documents not related to union business have been posted on union bulletin boards in the past. Lambert denies any knowledge of the actions taken by Silbernagel regarding the flyers.

Analysis

Kale admittedly provided unpaid volunteer personal services to Silbernagel's and Lambert's delegate campaign. He helped with the composition of their joint flyer. He took it to Office Depot for copying, although the candidates paid the costs for this. He distributed the flyers to various sites where Local 670 members are employed, using his knowledge of those sites gained as a business representative of the local. There is, however, insufficient evidence to support any claim that Kale provided financial support to Silbernagel or Lambert.[2]

As a retired member, and thus a non-member, Kale is prohibited by Article XI, Section 1(b)(4) of the Rules from giving financial support to delegate candidates, except as allowed by Sections 1(b)(5) and (9) of that Article, which are not applicable here. Section 10 of that Article, however, allows non-members to voluntarily provide services to a campaign, so long as the services are provided during the volunteer's "personal free time" and are offered without the underlying support of any employer or labor organization. See Hoffa Unity Slate, 2000 EAD 36 (October 12, 2000).

Kale's assistance here is proper under Article XI, Section 1(b)(10). He gave his assistance during his personal free time, and without the underlying support of any employer or labor organization. The fact that Kale may have been motivated by his dislike of opposing candidates Franken and Buckel is irrelevant to the propriety of Kale's volunteer services.

Nor does the fact that Kale's knowledge of Local 670 worksites made it possible for him to distribute flyers to those worksites mean that he improperly appropriated proprietary information of the local, as Franken seems to allege. Use of such knowledge by a volunteer does not violate Article VII, Section 1(b). Franken has not shown that Silbernagel, Lambert or Kale improperly possessed any worksite lists, or that such lists were stolen from the Local by kale or anyone else.

Finally, there is insufficient evidence to support what appears to be a claim by Franken that Silbernagel and Lambert, or their supporters, improperly posted their flyers on in-plant bulletin boards. Franken offered only isolated evidence on this point, and did not contradict claims made by Silbernagel and Lambert that past practice justified such postings under Article VII, Section 11(d). No evidence was offered that candidates suffered discrimination with respect to their literature distribution, in a manner contrary to that provision.

For the foregoing reasons, the protests are DENIED.

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

Suite 1000

885 Third Avenue

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 15^th Street NW, 10^th Floor, Washington, DC 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

2000EAD70

DISTRIBUTION LIST VIA FAX AND 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

Penobscot Building

Suite 1800

Detroit, MI 48226

Tom Leedham c/o Stefan Ostrach

110 Mayfair

Eugene, OR 97404

Betty Grdina

Yablonski, Both & Edelman

1140 Connecticut Ave. NW

Washington, DC 20036

Diana Franken

IBT Local 670

750 Browning Avenue SE

Salem, OR 97302

David Silbernagel

409 W. Locust St.

Stayton, OR 97383

Melvin L. Lambert

30015 Cora Robb Lane

Hermiston, OR 97838

Chris Mrak

2357 Hobart Ave. SW

Seattle, WA 98116