IN RE: RAY MILLIGAN,
Protest Decision 2001 EAD 156
Issued: February 12, 2001
OEA Case No. PR020513AT
Ray Milligan, a member of Local 11, filed a 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"). Milligan alleges that Local 11 secretary-treasurer Richard Jones used his status as a local union officer to gain access to employer facilities in order to campaign.
Election Administrator representative J. Griffin Morgan investigated the protest.
Findings of Fact
Local 11's nomination meeting for delegates and alternate delegates occurred on January 8, 2001. Ballots were mailed on February 8, 2001. The ballot count is scheduled for March 2, 2001. Two slates appear on the ballots. Local union president Peter McGourty heads one. Local union secretary-treasurer Richard Jones heads the other. There are local union executive board members and business agents on both slates.
Milligan is a business agent and candidate for delegate. He told our investigator that Jones used his status as secretary-treasurer of Local 11 to gain access for campaign purposes to at least two workplaces, Edwards Engineering ("EE") and Chestnut Hill Convalescent Center ("CHCC"). Milligan claims that Jones has no official union responsibility at these two workplaces.
Milligan is the business agent responsible for EE. He saw Jones at EE on February 2, 2001 between 1:00 p.m. and 2:00 p.m., along with Hoffa/Jones slate candidate William Negron. Milligan alleges that before he saw Jones, Jones gained entrance to EE by identifying himself to the receptionist as the secretary-treasurer of Local 11 and asking to speak to the shop steward. According to Milligan, the receptionist then called chief shop steward Bill Molt, who came to the reception area. Milligan says that Jones, Negron and Molt went through a door and walked a few feet into the work area. Milligan says that he then approached these three, and that as he did so he saw Jones give Molt campaign literature and heard Jones talk to the others about campaign issues.
Jones' version of these events is similar. He claims that he took a vacation day to campaign at EE. He says that when he walked into the vestibule, he asked the receptionist for Molt, and that when asked identified himself as Local 11's secretary-treasurer. The receptionist then called Molt, and when he arrived Jones spoke with him just inside the doorway to the work area. Jones claims that the purpose of his conversation was simply to let Molt know, as a gesture of respect, that he would be campaigning in the parking lot.
Molt's credible testimony confirms Milligan's allegations. He agrees with Milligan on each allegation, and most important, admits that Jones gave him campaign literature and asked him to put it on the bulletin board at EE. Molt also says he, Jones and Negron discussed the delegate campaign inside the EE work area for 10 to 15 minutes. We credit Molt because of his candor concerning the conduct of Jones, to whom he did not appear to be hostile.[1]
During his interview, Milligan also claimed that Jones went to the CHCC on January 15, 2001, where he gained access by telling the receptionist that he was Local 11's secretary-treasurer and asked to speak to the shop steward. Milligan again alleges that there was no work-related business involved and that the only purpose for Jones entry into the premises was to campaign.
Jones says that January 15 (Martin Luther King Day) was a holiday for him. He concedes that he told the receptionist that he was the local union's secretary-treasurer and asked to speak to a shop steward. He states that he then talked to the shop steward about whether the local union's notices were posted and about the delegate campaign and his slate of candidates.
Mike Mizzalo, CHCC administrator, says that he walked out to the front entrance, saw Jones, and asked who he was. Mizzalo states that Jones replied he was the union secretary-treasurer and said he wanted to speak to the shop steward. Mizzalo assumed Jones was for there for local union business and allowed him to talk to the shop steward. Mizzalo states that he would not have granted him access if he thought he was entering to campaign and not on Local 11 business.
Analysis
We reject the allegations in this February 5, 2001 protest as untimely to the extent they allege improper campaign access by Jones to the CHCC on January 15, 2001. Neither good cause nor any other prudential reason has been offered to justify the 21-day delay in filing these allegations with Election Administrator. Accordingly, this aspect of the protest is DENIED. We do, however, consider Jones' conduct on January 15 as background for his later conduct at EE.
As to that conduct, our findings make clear that Jones did more at EE than tell the shop steward as a gesture of respect that he would be engaging in permissible parking lot campaigning. Instead, as Molt credibly testified, Jones engaged in campaign activity in the workplace after gaining access by use of his position as secretary-treasurer of the local. Specifically, he delivered campaign literature to Molt, asked him to place it on the bulletin board at EE, and discussed the delegate campaign with Molt for 10 to 15 minutes.
The Rules provides in pertinent part:
No Union funds or other things of value shall be used, directly or indirectly, to promote the candidacy of any individual. Union funds, facilities, equipment, stationery, personnel, etc., may not be used to assist in campaigns unless the Union is compensated at fair market value for such assistance, and unless all candidates are provided with equal access to such assistance and are advised in advance, in writing, of the availability of such assistance. …
Rules, Article XI, Section 1(b)(6) (emphasis supplied).
Here, the access afforded to Jones as a local union officer is a union resource that was used by Jones for campaign purposes. That resource was not made available to other candidates on an equal basis, and they were not advised (in advance or otherwise) of its availability. Jones' conduct therefore constitutes an improper use of union resources in violation of Article XI, Section 1(b)(6) of the Rules.
For this reason, we GRANT the protest insofar as it concerns Jones' access to EE for campaign purposes.
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, Jones' violation was relatively minor, and his access was at least in part motivated by a desire to tell the shop steward that he planned to engage in completely proper parking lot campaign activity. In such circumstances, we find that an order that Jones cease and desist from any further use of his status as a union officer to gain access to employer premises for campaign purposes is sufficient, and we so order.
Unless otherwise stayed, this order takes immediate effect. Lopez, 96 EAM 73 (February 13, 1996).
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 156
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Patrick Szymanski
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IBT Local 11
Attn: Ray Milligan
830 Belmont Ave.
North Haledon, NJ 07508
IBT Local 11
Attn: Richard Jones
830 Belmont Ave.
North Haledon, NJ 07508
Bill Molt
Chief Shop Steward
Edwards Engineering
101 Alexander Avenue
Pompton Plains, NJ 07444
J. Griffin Morgan
Elliott, Pishko, Gelbin & Morgan
500 West Fourth Street
Winston-Salem, NC 27120
[1] At the same time, we do not find that Jones' explanation that he visited Molt to let him know of his plans to engage in parking lot campaigning is a pretext. We conclude that this was at least part of the reason why Jones went into the shop to see Molt.