Protest Decisions

IN RE: Daniel J. Dzilenski,
Protest Decision 2001 EAD 462
Issued: September 20, 2001
OEA Case No. PR082712WE

(See also Election Appeals Master decision 01 EAM 90)

Daniel Dzilenski, a member of Local 174 and a shop steward, 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 that business agent Rick Hicks and other union officials campaigned on union paid time, used union resources to campaign for the Hoffa Unity Slate ("Hoffa slate) and that the Hoffa slate conducted a campaign event advertised as a meeting on IBT business.

Election Administrator representative Lisa Sonia Taylor investigated this protest.

Findings of Fact

On August 26, 2001, General President James P. Hoffa, IBT Parcel and Small Package Director Bill Lichtenwald and UPS Grievance Committee member Ken Hall attended campaign events at the Ballard Eagles Club in Seattle. The campaign of Hoffa slate vice-presidential candidate Al Hobart sponsored this event. Doug Henderson, campaign manager for the Hobart campaign, stated that he arranged for the rental of the hall and that the Hobart campaign paid the rental fee. The campaign had use of the hall for the entire day. A campaign meeting between General President Hoffa and area stewards was scheduled for 1:00 p.m., to be followed by a 2:30 p.m. fundraiser.

When business agent Hicks learned that Lichtenwald and Hall were both going to be at the campaign events, he arranged for time to be set aside on August 26 so that Lichtenwald and Hall could speak with Local 174 UPS members at a meeting set for 11:00 a.m. at the same location as the campaign events. A flyer was prepared to advertise the 11:00 a.m. event. The Hoffa campaign supplied this flyer, and Hicks received copies to distribute.

Dzilenski says he received a copy of this flyer on August 23, 2001, while on duty at the UPS Redmond hub. Dzilenski says Local 174 business agent Jim Nettleton gave the flyer to him and to steward Dan Scott, who was getting off work. The flyer invited "all UPS members" to meet with "IBT parcel and small package director Bill Lichtenwald" and "UPS grievance committee member Ken Hall." The flyer invited members to "ask your questions, voice your concerns, discuss the issues" and said "kick off the 2002 contract campaign." (The IBT's negotiations with UPS will be conducted in 2002.) The flyer was printed on colored paper with a watermark of the IBT logo in the background. The flyer did not state that the meeting it advertised was a campaign event. Dzilenski says that he also saw Hicks handing out flyers, but that unlike Nettleton, Hicks remained in the parking lot.

Hicks and Nettleton deny that they campaigned on UPS premises. They claim that Hicks distributed flyers outside of the UPS facility. Hicks says he gave Dzilenski a copy of the flyer on August 23, after which they discussed various political issues. Hicks says that Dzilenski was not on duty when he gave him the flyer.

Nettleton says that he was at the Redmond facility on August 23, for a regular shop visit. While speaking with a member, Scott passed and noticed that he had a copy of the flyer. Scott asked to see the flyer and subsequently transcribed the information from the flyer and handed it back to Nettleton. Nettleton denies giving a copy to Dzilenski, and denies passing out the flyers at all.

Dzilenski says that he thought the purpose of the meeting was to discuss official union business, i.e., UPS contract negotiations. When he arrived at the meeting, Dzilenski noticed that the entire room was "bedecked" with Hoffa and Hobart campaign material. While appearing at the meeting, both Lichtenwald and Hall wore stickers stating, "I'm voting for the Hoffa Unity Slate."

At 6 a.m. on August 26, 2001, the Hobart campaign entered the hall and decorated it with Hobart and Hoffa slate campaign paraphernalia. At approximately 11:00 a.m., the meeting with Lichtenwald and Hall began. Unlike the members that attended the 2:30 p.m. fundraiser, UPS members attending the 11 o'clock meeting were not charged admission.

Scott submitted photographs of the club. At the entrance to the hall, there was a table at which Dzilenski says Hoffa raffle tickets were being sold. On a podium and the wall were posters that read, "Hoffa/Hobart, vote unity slate." Under almost every roof tile were multicolored signs hanging from ribbons. These signs read, "Unity," "Pride," "Strength," "Hoffa Hoffa Hoffa," "Hoffa Hobart 2001," and "Vote the slate." These signs were also posted on the walls. Dzilenski submitted campaign flyers, which he stated were displayed on a literature table in the hall. The pictures also showed Hoffa talking to the group and flanked by two men who Dzilenski identified as Lichtenwald and Hall. All three men were wearing buttons, which Dzilenski identified as Hoffa campaign buttons. Local 174, by counsel, admitted that the meeting room was "festooned with pro-Hoffa campaign material." According to Local 174, less than twenty UPS IBT members were present for the 11:00 a.m. event.

Dzilenski says that the general gist of Lichtenwald and Hall's speeches was that "a strong UPS contract could be achieved only if we had confidence in and trusted the current Local and IBT leadership." Dzilenski says he stood up at the UPS meeting and questioned the appropriateness of having it in a room decorated for a Hoffa fundraiser, at which point, Local 174 president Scott Sullivan and Hicks accused him of making the meeting political. Dzilenski says that just after noon, President Hoffa arrived and addressed the group. He says that Hoffa made at least four "denigrating" remarks about the Carey administration and stated that his "all-star" negotiators would procure a strong contract with UPS.

Hicks denies that Lichtenwald and Hall "tied success in the UPS negotiations to retention of the current Local and International leadership." He says that Lichtenwald's statements were made in response to provocative questions posed by Dzilenski who attended the meeting wearing a Tom Leedham t-shirt. Local 174's counsel admits that Lichtenwald responded to Dzilenski's comments by saying that in his personal opinion the present IBT leadership was in a better position to negotiate a strong contract with UPS in 2002.

Analysis

We DENY the protest allegation that business agents Hicks or Nettleton violated the Rules by passing out copies of the flyer advertising the UPS member meeting set for August 26 while inside UPS premises. We credit Nettleton, who stated that Scott approached him in the UPS facility on or about August 23, saw a copy of the leaflet that Nettleton was carrying, asked to see it, and copied its contents. Scott's approach, and Nettleton's agreement to let him see the flyer that he had, was merely incidental to the union business being performed by Nettleton at the time. Further, while we find that Hicks did pass out the UPS meeting flyer, we find that he did so on his own time.

Article VII, Section 11(c) of the Rules prohibits the use of union resources in campaigning and unless, inter alia, all candidates are provided advance written notice and equal access. Here, the Hoffa and Hobart campaigns paid for the meeting room at which the 11:00 a.m. UPS meeting was held, and paid for the flyer that advertised it. However, as in Thompson, 2001 EAD 430 (August 24, 2001), this does not shield the respondents from our finding that they have violated the Rules.

There, a candidate for International office who also published a newsletter at his own expense endorsed his own candidacy in that publication. We found a violation because the publication concerned official union business, and thus created the impression that the self-endorsement was made in the endorser's official union capacity.

Here, the campaign-funded flyer sought the attendance of IBT members at a meeting that they could legitimately conclude from the flyer's contents concerned union business, rather than campaign matters. Thus, the flyer made no mention of the International officer election and instead advertised the meeting as a "kick off" of the 2002 UPS contract campaign, an important union business matter. Once there, given the holding of the meeting in a room decorated with Hoffa paraphernalia, they were exposed to an unmistakable campaign message.[1]  As in Thompson, the conduct of union business by union representatives was used to convey a campaign message. As there, the conduct here violates Article VII, Section 11(b)'s prohibition against the use of union resources for campaign purposes.

We accordingly GRANT this protest allegation.

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.

We order the following remedies:

1. The Hoffa slate shall cease and desist from improper use of union resources in support of its campaign;

2. The Hoffa slate, with the assistance of Local 174, shall post the notice attached hereto at Local 174 bulletin boards at each worksite at which Local 174 UPS employees are employed. The notice shall be posted by September 25, 2001 and shall remain posted for 30 days thereafter.

3. To level the playing field as a result of the improper use of union resources, we order the Hoffa campaign to pay the full cost of a one-page Leedham slate campaign mailing to all UPS employees represented by Local 174. The Hoffa campaign and Local 174 shall cooperate in the prompt completion of and payment for this mailing.

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 (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 15^th Street, N.W., 10^th Floor, Washington, D.C. 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 462

NOTICE TO ALL MEMBERS OF LOCAL 174 EMPLOYED BY UNITED PARCEL SERVICE

The Rules for the 2000-2001 IBT International Union Delegate and Officer Election ("Rules") prohibit use of union resources by candidates and candidate slates.

The Election Administrator has concluded that the Hoffa Unity slate distributed flyers that it paid for but that improperly sought your attendance at Hoffa slate campaign event that the flyer advertised as an a meeting concerning official union business.

The Election Administrator will not permit any such violation of the Rules.

The Election Administrator has ordered the posting of this notice and has also ordered the Hoffa slate to cease and desist from violating the Rules and to pay for a remedial mailing of campaign literature by the Leedham slate.

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 (BY UPS NEXT DAY AIR UNLESS OTHERWISE SPECIFIED):

[1]    We make this finding without resolving the conflict among witnesses about what was said at the meeting by the speakers.  Even if all speakers confined themselves to non-partisan remarks about union business, the decoration of the room itself, and the wearing by the advertised speakers of campaign insignia convey the campaign message.