IN RE: KATHERINE KLECKNER,
Protest Decision 2001 EAD 110
Issued: January 30, 2001
OEA Case Nos. PR011510MW and PR011511MW
Katherine Kleckner, a member of Local 743, 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"). Kleckner alleges that Local 743 organizer Cassandra Davis improperly used union resources by checking on TITAN the eligibility of candidates on slates other than the Hoffa 743 Take Back Slate (the "Take Back slate"), and further alleges that Davis abused the right to file protests by filing more than twenty against candidates opposed to the Take Back slate.
Election Administrator representative Jason Weidenfeld investigated the protests.
Findings of Fact
Kleckner is a supporter and campaign manager of the 743 New Leadership slate (the "New Leadership slate"), Davis is a supporter of the Take Back slate, as is the local union's secretary-treasurer, Robert Walston, a delegate candidate for that slate. The local union held its nomination meeting on January 3, 2001 for its IBT convention delegate election. Davis filed eligibility protests with the Election Administrator dated January 5, 2001, in which she challenged the eligibility of thirty members nominated as delegate or alternate delegate candidates. By letters of January 22 and 25, 2001, Davis withdrew all but eleven of these challenges. All eleven candidates whose eligibility Davis continued to challenge were held to be ineligible in our decision in Straughter, 2001 EAD 103 (January 25, 2001).
Davis told our investigator that she did not check the eligibility of these candidates personally, but rather asked Local 743 secretary-treasurer Walston about the eligibility of certain candidates without regard to their alignment with a particular slate. Davis said that anyone could question the eligibility of others, as far as she knew.
Walston's statements to our investigator, however, belie Davis' claim. Thus, Walston said that his post-nomination meeting eligibility check was limited to candidates who were not on the Take Back slate. He could not locate records on certain individuals, and could not decide whether to have protests filed as to their eligibility, so he called Regional Director Dennis Sarsany. Sarsany told Walston that he had two working days to protest anyone's eligibility. Walston, who was leaving for vacation, then instructed Davis to file protests against people who appeared to be ineligible and whose records could not be located.
Walston also admitted that he ran an eligibility check on TITAN shortly before the nomination meeting to ensure that the Take Back slate candidates were eligible. Walston identified Stella Stokes as a prospective Take Back slate candidate whose ineligibility was thus determined and whom the Take Back slate's supporters thus did not nominate.
Walston said that he would honor any member's request for a check of the member's own eligibility, but he would not give to one member eligibility information about another member. Walston appeared willing to check any individual's own eligibility to run. Kleckner does not allege otherwise. Kleckner alleges a Rules violation because "Ms. Davis is using union resources and exercising an advantage for incumbents that is in violation of the [Rules]."
Analysis
The Rules generally prohibit the use of union equipment to advance the campaign of a particular candidate or group of candidates. See Article VII, Section 11(c); Article XI, Section 1(b)(6). At the same time, past decisions have recognized that ordinarily filing a protest "is protected, and does not constitute support for a candidate or campaigning under the Rules." Reyes, 2000 EAD 28 (September 27, 2000)(use of union fax machine to file a protest no violation); Kieffer, P360 (March 19, 1996).
Prior election rules decisions have, however, recognized limits on this right insofar as the expenditure of union funds is concerned. Thus, use of union funds to file or process a protest will constitute proper use of such funds only when the protest activity furthers the independent, institutional interest of the union. Jenne, 2000 EAD 64 (December 14, 2000); McGinnis, 91 EAM 150 (May 16, 1991); Furst, P711 (July 15, 1991), aff'd in relevant part, 91 EAM 172 (July 29, 1991). Accordingly, unions may not use their funds to finance protest activity that advances or damages a candidacy in cases where the institutional interests of the union are not implicated. Marciel, P768 (May 20, 1991), aff'd sub nom Moerler, 91 EAM 153 (May 30, 1991).
The distinctions drawn in McGinnis and reaffirmed inFurst between the permissible and impermissible use of union-paid attorneys and other professionals is instructive. In McGinnis, the local's attorney had spent time observing the ballot count, and also prepared submissions on behalf of the winning incumbent slate in response to post-election protests filed by the opposing slate. As for the time spent observing the ballots it was determined that:
The local union [had] an institutional interest in assuring the integrity of the election process affecting the Local. That interest may be served permissibly by retaining an attorney to represent the Local at the counting of the ballots.
As for the other conduct of the attorney it was held that his:
[P]articipation in the post-election protest was not similarly in the service of the Local Union as an institution. A review of the submissions filed by [the attorney] demonstrates that he took a clearly partisan position and incontrovertibly engaged in advocacy on behalf of particular candidates. This conduct, it must be concluded, falls within the proscription of the Rules.
Furst, supra, 91 EAM 172, p. 3, quoting McGinnis (emphasis in original).
As summarized in Furst: a union cannot "escape the Election Rules' prohibition on improper campaigning [by] hid[ing] behind the guise that it is simply ensuring the proper implementation of the Election Rules when it embroils itself in the protest process, when in reality it is seeking to aid the candidacy of an individual. Such attempts, when challenged, will surely be revealed and the appropriate sanction will be levied." Id., 91 EAM 172, p. 6.
We conclude based on our investigation here that the manner in which secretary-treasurer Walston and Davis used their access to Local 743's membership records demonstrates that their conduct was not directed towards the independent, institutional interest of the local union, but was instead directed towards assisting the Take Back slate. Thus, Walston's review of membership records after the nomination meeting was directed only to checking the eligibility of candidates opposed to Walston's slate. Similarly, the review of these records before the election was directed only towards assuring that all Take Back slate candidates were eligible. We conclude that Walston's and Davis' conduct with respect to these records both before and after the nomination meeting was intended solely to benefit the Take Back slate, to the exclusion of other opposing candidates.
In such circumstances, where the facts demonstrate, as here, that the use of union resources had a clear partisan purpose, such conduct constitutes an impermissible use of union resources barred by Article VII, Section 11(c); Article XI, Section 1(b)(6) of the Rules.
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.
Here, Walston's conduct gave his slate and its supporters a decided advantage in its pursuit of eligibility protests, which the slate used by timely filing protests against its opponents. By contrast, a number of eligibility protests filed by Kleckner were untimely, and were dismissed as such in our decision in Straughter, supra, 2001 EAD 103.
The nature of the Rules violation here requires that Walston's and Davis's use of union resources must be remedied by requiring that they reimburse Local 743 for the cost of their time spent conducting their review of union records in order to identify facts relevant to the eligibility status of their political opponents. Accordingly, we order that for each hour so expended by them or by any employee of Local 743, they shall reimburse Local 743 in an amount equal to the compensation paid by the local union for such hour(s). In order to facilitate compliance, Walston and Davis are to identify to the Election Administrator within five (5) business days of the date of this decision the time spent on such activity by themselves and any employee of the local, as well as the hourly compensation of each such person, and to provide reimbursement to the local union in the appropriate amount within seven (7) business of the date of this decision.
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
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 15th Street NW, Tenth 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
2001 EAD 110
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IBT Local 743
Attn: Robert Walston &
Cassandra Davis
300 S. Ashland Ave.
Chicago, IL 60607
Katherine Kleckner
5013 Ridgway Avenue
Chicago, IL 60632
Julie Hamos
203 N. Wabash
Suite 1800
Chicago, IL 60601
Dennis Sarsany
1829 Eddy Street
Chicago, IL 60657