IN RE: JIMI RICHARDS,
Protest Decision 2001 EAD 328
Issued: April 26, 2001
OEA Case Nos. PR022712AT
See also Election Appeals Master decisions:
01 EAM 63 (KC)
01 EAM 63 (KC) Supplemental
Jimi Richards, member of Local Union 728 and delegate candidate, 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"). He alleges the Local 728 Unity slate violated the Rules by misappropriating union resources to support its campaign.
Election Administrator representatives Maureen Geraghty, Michael Nicholson and Jeffrey Ellison investigated the protest.
Findings of Fact
On February 27, 2001, Richards observed delegate candidate Earl Parker wearing a three-inch, pin-backed, white button with a sticker affixed to it that read "Local 728 Unity slate." The button was identical to buttons Richards knew the local had purchased but not used during the UPS strike. Richards reported his observation to local president Don Scott, who checked and found buttons missing from the local's supply. This protest followed.
Documents supplied by Scott showed the local purchased 5000 three-inch, pin-backed, white buttons in blank for distribution during the 1998 UPS strike. Very few of the buttons were distributed before the strike settled, and the reserves were stored on the locked second floor of the local's hall. All officers and business agents have keys to the area. Waymon Stroud, former local president and current vice president, stated the local had not used the buttons for any purpose since the UPS strike.
Marion Ray, the local's political director, reported she reorganized the second floor storage in July 2000. At that point, the remaining buttons were stored in one sealed cardboard box and one open plastic mail tub she described as three-quarters full. She saw the box and tub again in December 2000 when she unpacked the local's Christmas decorations; the box was still sealed and the quantity in the tub appeared the same as it had the previous summer. At our investigator's request, Ray checked the button supplies again after this protest was filed. She found the cardboard box was still full but the volume of buttons in the mail tub was reduced by two-thirds.
Stroud, head of the Unity slate, stated the slate obtained 250 three-inch, pin-backed, white buttons from Jimmy Payne, business agent and slate member. The buttons are identical in every respect to the local's buttons, a fact conceded by the slate. Payne claimed he purchased the buttons from Metro Race Graphics for the sum of $50. For the following reasons, we do not credit Payne's claims and find to the contrary that the buttons are the local's property and were misappropriated for use by the Unity slate.
Metro Race Graphics is a hobby of Eric Evans, a friend of Payne. Evans claimed he sold Payne the buttons and produced an invoice as proof. The invoice showed "250 3" Buttons" for $50 but showed no sales tax or proof of payment. Evans works as a roofer during the week and, in his spare time, makes vinyl lettering for racecars. He has never dealt in buttons, and therefore needed to locate a button vendor from which to purchase them. Yet he could not identify the button vendor he used, produce proof of the order, recall the order's cost or whether he sold the buttons to Payne at his cost or a premium.
Further, Evans claimed he made the stickers for the buttons but could not recall the type of stickers or what they said. Although Evans gave our investigator a copy of the invoice for buttons he claimed he sold Payne, Evans was unable to supply copies of any other invoices he claimed he issued in pursuit of his hobby/business. In particular, no invoice for the stickers was produced. Finally, the per-piece price Evans charged for 250 buttons was far lower than the local obtained, presumably at a bulk rate, when it ordered 5,000 two years ago.
The recollections of Evans and Payne also diverge in several significant respects. First, Payne said he picked the buttons up, but Evans claimed he mailed the 250 buttons, the stickers, and his invoice to Payne in one box. Payne produced the mailing envelope he said he received from Evans, but it was far too small and carried insufficient postage to mail the items Evans claimed; Payne said it contained only the invoice and the stickers, not the buttons. Second, Payne asserted he paid for the buttons when he got them January 24. In contrast, the invoice Evans claimed he mailed on February 6 states that $50 is "Due Upon Receipt;" Evans maintained Payne mailed him $50 cash on a later date he could not recall.
Although Payne claimed he purchased the buttons for use by his slate and the Hoffa campaign, he never sought reimbursement from either organization. Further, he stated he paid cash for the buttons but was not given a receipt for the payment. Evans made no bank deposit, ledger entry or other record of the claimed cash payment by Payne; instead he stated he merely put the money in his pocket and spent it.
In summary, the local suffered an unexplained loss of a volume of buttons in or after December 2000, Payne as a business agent had a key to the storage area where the buttons were kept, and Payne was unable to explain satisfactorily how he obtained buttons identical in every detail to those missing from the local's stores. On these facts, we find that Payne misappropriated the local's buttons for use in the Unity slate's campaign.
Analysis
Article VII, Section 11(c) bars use of union funds or equipment for 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." We find that Payne's misappropriation of buttons violated this provision.
Article XI, Section 1(b)(3) prohibits a candidate from accepting or using anything of value from a labor organization, "where the purpose, object or foreseeable effect of the contribution is to influence, positively or negatively, the election of a candidate." Further, Section 1(b)(13) of that article holds candidates "strictly liable to insure that each contribution received is permitted under the Rules." Moreover, "[i]gnorance by a candidate … that union … funds or resources were used to promote a candidacy shall not constitute a defense to an allegation of a violation of these Rules." Article XI, Section 1(b)(14). Payne violated these provisions by misappropriating the buttons from the local's supply. His slate is strictly liable for the improper contribution to its campaign.
Having found Rules violations, we must assess whether these violations "may have affected the outcome of the election." Under Article XIII, Section 3(b) of the Rules, a violation of the Rules alone is not grounds for setting aside an election unless there is a reasonable probability that the election outcome may have been affected by the violation. Wirtz v. Hotel Employees, Local 6, 391 U.S. 492, 507 (1968). While a violation creates a presumption that the outcome was affected, that presumption "may of course be met by evidence which supports a finding that the violation did not affect the result." Id.; Dole v. Mailhandlers, Local 317, 711 F.Supp. 577, 581 (M.D. Ala. 1989); see also Platt, Post-1 (March 14, 1996), rev'd on other grounds, 96 EAM 144 (March 29, 1996) ("To determine whether an effect exists, the Election Officer determines mathematically whether the effect was sufficient in scope to affect the outcome of the election and/or whether there was a causal connection between the violation and the result or outcome of the election."); Ford, 95 EAM 46 (December 20, 1995) (However, "where the benefit conferred by a violation is significant, and the vote outcome is close, the Election Officer need not find a definitive causal link between the two.")
The tally of 2,175 ballots returned by the closing date of March 2 showed that the Local 728 Unity slate won all delegate and alternate delegate seats. The margin between the lowest polling successful delegate candidate and the next candidate was 385 votes. The similar margin in the alternate delegate contest was 432.
To assess the impact of the violations found here on the outcome of the election, we requested that the protestor, the respondent, and their respective slates provide us with evidence addressing whether, when, and under what circumstances the buttons were used during the delegate campaign. All parties responded and the evidence they produced was scrutinized thoroughly.
This additional investigation showed the buttons were widely circulated during the period leading up to the date ballots were mailed. Thus, they were distributed at the Yellow Freight facility in Marietta on January 19 bearing international orange and black peel-and-stick stickers reading variously "Hoffa," "Vote Hoffa Again," and "Elect Local 728 Unity Slate;" the YF facility employs approximately 650 members. They were distributed at the ABF terminal in Conley the same day bearing similar stickers; approximately 400 members work at that terminal. The buttons were also passed out at the UPS Pleasantdale facility in Norcross on February 7; roughly 2,000 members work there.
Witnesses for the Unity slate admit circulating buttons on January 19 but claim they were physically distinct from the local's buttons in that they were smaller (2¼" rather than 3"), were constructed with the message beneath a plastic covering rather than with a sticker applied over it, and read "Vote HOFFA WOOD Unity Slate" in blue and red ink against a white background rather than the messages recited above. Investigation showed, however, that in addition to the buttons just described, the local's buttons were also distributed. Although Unity slate witnesses claim they did not acquire international orange and black "Vote Hoffa Again" stickers until Tyson Johnson supplied them during the week of February 19, we credit the eyewitness testimony of individuals who saw employees wearing buttons bearing such stickers at YF and ABF on January 19.
Buttressing our finding of wide circulation, Payne admitted he distributed nearly 200 buttons himself over the course of the campaign. The buttons bore a variety of peel-and-stick stickers, including "Vote 728 Unity Slate," "Vote Hoffa Now," the letters TDU circled with a slash through them, and a depiction of a man holding his groin with one hand and gesturing with the middle finger of his other at the letters TDU. Earl Parker, a Unity slate member, said he along with other slate members distributed the buttons at YF, Roadway, Holland and ABF. When he ran out of buttons, Parker said Payne resupplied him. The number of buttons misappropriated from the local's supply cannot be determined with precision, but the volume Payne and Parker admit distributing, when added to those seen worn by members at UPS, suggests the number obtained by the slate far exceeded the 250 admitted by Stroud.
The Unity slate argued that, no matter the number distributed, the buttons did not have the purpose, object or foreseeable effect of influencing the election because campaigns, according to an expert witness the slate provided, do not use buttons to persuade voters. Rather, buttons serve as tangible rewards for ardent supporters. We reject this contention because the buttons were distributed en masse at terminal gates with no apparent assessment of the degree of each recipient's ardor. Further, we note the wearing of buttons often is the sole protected campaign activity that may occur inside an employer's facility. Accordingly, we find buttons were indeed used to persuade and therefore had the purpose, object or foreseeable effect of promoting the election of the Unity slate.
No allegation has been made nor evidence produced that the peel-and-stick stickers were acquired with union resources. However, affixing the stickers to the buttons converted the stickers from a disposable to a reusable commodity, serving to extend the life of the message the slate advanced. Indeed, investigation showed that the buttons have continued currency and have been worn by members attending the local membership meetings in March and April, well after the delegate election concluded.
Therefore, despite the vote margins between winning and losing candidates, we find the improper acquisition and widespread distribution by the Local 728 Unity slate of buttons belonging to the local may have affected the outcome of the election.
Remedy
When the Rules have been violated, the Election Administrator "may take whatever remedial action is appropriate." Article XIII, Section 4. In fashioning the appropriate remedy, the Election Administrator considers the nature and seriousness of the violation, as well as its potential for interference with the election process. Moreover, Article XI, Section 1(d) instructs that "[t]he remedy that may be imposed by the Election Administrator in resolving any protest concerning a candidate's or campaign's receipt or use of improper contributions will be influenced by the manner in which the contribution was solicited and/or accepted…"
Here, the evidence establishes convincingly that a substantial number of buttons were taken from the local's supply. Further, Payne's explanation of a legitimate source for the buttons is unconvincing. In accord with Article XI, Section 1(d), these circumstances suggest a severe remedy is appropriate.
A further basis for the remedy we order is the repeated improper use of union resources by the Unity slate or its members. Thus, in Richards, 2000 EAD 5 (August 1, 2000), aff'd 00 EAM 1 (August 14, 2000), we found the Stroud/Hoffa Re-Election Campaign, the Unity slate's predecessor, improperly used local union personnel and equipment to establish and maintain a system of payroll deduction that directed contributions of local union employees to a campaign fund. Further, in Richards, 2000 EAD 7 (August 1, 2000), slate members, in the presence of and without objection from Payne, improperly used a membership drive financed by the local to solicit accreditation signatures for the Hoffa campaign.
The violation in this case represents a more serious improper use of union resources for campaign purposes by the same organization. Accordingly, we issue the following remedy:
1. Local 728 is directed to rerun its delegate election. The local is ordered to mail ballots on Monday, May 7, 2001 and conduct the tally of ballots on Tuesday, May 29.
2. Because of his serious misconduct, Jimmy Payne is disqualified to run as a candidate for delegate or alternate delegate in the re-run election. All remaining candidates and slates that appeared on the original ballot will be listed in the same arrangement on the rerun ballot.
3. Local 728 is directed immediately to post on all local hall and worksite union bulletin boards the notice attached to this decision as Exhibit A.
4. Within two (2) days of its compliance with paragraph 2, the local will submit an affidavit attesting to its compliance.
5. The Local 728 Unity slate will immediately reimburse the local the fair market value of the buttons, which we determine to be $175.
6. The Local 728 Unity slate will pay the full cost for a one-page mailing of campaign literature by each opposing slate and by the independent candidates in the Local 728 election, with such mailing to be conducted, if requested, by May 7, 2001.
7. The Local 728 Unity slate and its members will cease and desist from misappropriating union property for campaign purposes.
The foregoing remedy is imposed to address three considerable issues this case presents. First, because we find the Unity slate's improper use of union property to assist its campaign activity may have affected the election's outcome, we are compelled to order that the election be rerun under conditions free of the taint of this improper assistance.
Second, the sanction of disqualification for slate member Payne is required because previous remedies intended to curb improper use of union resources failed to deter him from committing the serious violations found here and because he obstructed the investigation by presenting a false explanation for the source of the materials. Disqualification should not be imposed lightly because ultimately it is undemocratic and interferes with the rights of members to nominate and elect their representatives. However, disqualification is properly levied where, such as here, "persons have shown defiance for the processes established by the Consent Decree, such as by obstructing an investigation, disobeying a prior cease and desist order or engaging in repeated knowing violations." Hoffa, P770 (June 21, 1996), aff'd, 96 EAM 210 (July 11, 1996). See also Cheatem, Post 27 (November 17, 1997), at p. 53 ("[T]he Election Officer may sometimes find punishment of candidates or their supporters appropriate to serve remedial purposes, when such actions are required in order to achieve a deterrent effect or to otherwise preserve the integrity of the electoral process.")
Finally, to properly remedy the violations, the Unity slate must disgorge itself of its ill-gotten gain. In monetary terms, it must repay the local the value of the misappropriated goods. But to level the field in the campaign, it must fund the remedial mailing for opposing slates and candidates to undo the considerable advantage it obtained when the illicit buttons were distributed at plant gates with the intention they be worn inside employers' facilities.
We reject the protestor's request that we disqualify the entire Unity slate and award the election to the next highest polling candidates. Our finding that the violation may have affected the outcome of the election is not a declaration that the violation did affect it. The protestor cannot establish that his or any other slate would have won the election but for the violation. "To install candidates who were not elected would not simply remedy the violations found in this decision but would potentially place the [protestor's] slate in a better position than they would have been in had the violations not occurred. This result is inconsistent with the Consent Decree and the Rules." Cheatem, Post 27-5 (August 21, 1997).
In Hull, 01 EAM 37 (February 21, 2001), the Election Appeals Master "observe[d] that some remedies that can be imposed under the Rules, such as the disqualification of candidates, are indeed punitive. Others, such as imposed monetary obligations, may serve multiple purposes, including punitive (to discourage the violators from repeated flouting of the Rules), cautionary (to discourage others who might be tempted to violate the Rules) and remedial (to level the playing field)." Because of the recidivism demonstrated by the Unity slate and its members regarding improper use of union resources, a lesser remedy, such as a cease and desist order and notice posting, is wholly ineffective to correct the behavior and encourage compliance with the Rules.
A decision 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 (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, (fax: 202-454-1501), all within the time 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 328
NOTICE TO LOCAL UNION 728 MEMBERS
The Rules for the 2000-2001 IBT International Union Delegate and Officer Election ("Rules") prohibit a member, candidate, or slate of candidates 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 Election Administrator will not permit any such improper use of your Local Union's funds.
The Election Administrator has concluded Jimmy Payne misappropriated Local Union property for campaign purposes. The Election Administrator further has concluded the Local 728 Unity slate improperly accepted and used Local Union property obtained illicitly for it by Payne. Finally, the Election Administrator has determined that Payne obstructed the investigation by providing false evidence.
To remedy these serious violations of the Rules, the Election Administrator has ordered the following:
§ Local 728 will rerun its delegate election. Ballots will be mailed on Monday, May 7, and counted on Tuesday, May 29.
§ Jimmy Payne is disqualified from the re-run election because of his serious misconduct of misappropriating union property and obstructing the investigation.
§ The Local 728 Unity slate will pay $175.00 to the treasury of the Local Union to reimburse the Local Union for the property Payne and the Local 728 Unity slate misappropriated from it.
§ The Local 728 Unity slate will pay the full costs of a campaign mailing by all opposing slates and independent candidates, if requested.
§ The Local 728 Unity slate must cease and desist from any further violation of the Rules.
Any protest you have regarding your rights under the Rules or any conduct by any person or entity which violates the Rules should be filed with William A. Wertheimer, Jr., Office of the Election Administrator, 727 Fifteenth Street, NW, Washington DC 20005, telephone 800-565-VOTE, fax (202) 454-1501.
William A. Wertheimer, Jr.
William A. Wertheimer, Jr.
Election Administrator
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.
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
Penobscot Building
Suite 1800
645 Griswold
Detroit, MI 48226
Betty Grdina
Yablonski, Both & Edelman
Suite 800
1140 Connecticut Ave. NW
Washington, D.C. 20036
Tom Leedham Rank and File
Power Slate
c/o Stefan Ostrach
110 Mayfair
Eugene, OR 97404
Jimi Richards
2875 Acworth Due West Road
Kennesaw, GA 20152
IBT Local 728
2540 Lakewood Avenue SW
Atlanta, GA 30315
Waymon Stroud, Sr.
Local 728 Unity Slate
3766 Occidental Way
Decatur, GA 30034
Jimmy Payne
IBT Local 728
2540 Lakewood Avenue, SW
Atlanta, GA 30315
Eric Evans
Metro Race Graphics
677 Yarbrough Mill Road
Williamson, GA 30292
James Hicks, Jr.
2777 N. Stemmons Freeway
Dallas, TX 75207
J. Griffin Morgan
Elliott, Pishko, Gelbin & Morgan
426 Old Salem Road
Winston-Salem, NC 27101
Maureen Geraghty
300 South Main Street
Winston-Salem, NC 27101
Michael Nicholson
122 N. Main Street, Suite 210
Ann Arbor, MI 48103
Jeffrey Ellison
65 Cadillac Square, Suite 3727
Detroit, MI 48226