IN RE: DAVID THORNSBERRY, Protestor.
Protest Decision 2005 ESD 11
Issued: September 19, 2005
OES Case No. P-05-011-090705-MW
David Thornsberry, a member of Local Union 89 and delegate candidate on the United Rank & File slate, filed a pre-election protest pursuant to Article XIII, Section 2(b) of the Rules for the 2005-2006 IBT International Union Delegate and Officer Election ("Rules"). The protest alleged that the local violated the Rules by choosing a method for production of mailing labels that was not the least expensive system available to the union.
Election Supervisor representative Joe F. Childers investigated this protest.
Findings of Fact
At the nomination meeting held September 5, Local 89 president Fred Zuckerman announced that address lists for candidate mailings would be made available on adhesive-backed stickers. The protestor asserts that this method is not the least expensive means available to the union for producing the mailing list and therefore violates the Rules.
Investigation showed that the local union sends periodic mailings to its membership, including its bi-monthly newspaper. For these mailings, the local requests that an International Union TITAN operator transmit the current local membership list by electronic means directly to the mail house responsible for the mailing. The mail house then uses a laser process to apply the addresses directly to the material to be mailed.
Investigation further showed that the adhesive-backed sticker process announced by Zuckerman is more expensive than the laser process just described because of the cost of the stickers and the staff time associated with printing the stickers.
To date, the local union has not arranged for a mailing service to receive literature directly from candidates. Zuckerman told our investigator, however, that he would authorize the International Union to send the address lists to Farley Printing Company, the entity responsible for mailing ballots for the delegate election. The protestor seeks to use L&D Mail Masters, a mail house the protestor used in past elections, including the 2000-2001 delegate and alternate delegate election. Zuckerman concedes that L&D has acted appropriately to protect the confidentiality of the address list in these past elections; he did not articulate any reason why L&D would be an unsuitable mail house in the current election.
Analysis
Article VII, Section 7 of the Rules provides the following:
(d) In complying with requests to mail literature, the Union shall use the current names and addresses that are on file for all relevant members in good standing. Mailing labels shall be prepared through the least expensive system available to the Union.
(e) The Union shall exercise all reasonable efforts to ensure that each candidate's campaign literature is processed and distributed in a complete and prompt manner.
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(g) The Union shall adopt procedures for complying with candidates' requests for distribution of literature and shall specifically advise all candidates of those procedures. The Union shall arrange for a mailing service to process and distribute candidates' literature, and for such mailing service to receive the literature directly from the candidate. The mailing service shall not discriminate for or against any candidate.
We find that the laser process used by the local union for its general membership mailings is a "system available to the Union" within the meaning of subsection (d) of Article VII, Section 7 and is less expensive than the adhesive-backed sticker system. Accordingly, we find that the local union violated the Rules when its president announced that the sticker system would be used for candidate mailings.
We further find that the local union failed to "arrange for a mailing service to process and distribute candidates' literature," as required by subsection (g) of Article VII, Section 7. The protestor's request that the TITAN list be transmitted in electronic form to L&D for processing appears reasonable on the facts presented, given that L&D properly safeguarded the list in previous elections. Where the local union fails to arrange for a mailing service, the candidate's choice of a mailing service will be honored absent a substantial risk that the confidentiality of the list will be compromised thereby.
Accordingly, we GRANT the protest.
Remedy
When the Election Supervisor 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 Supervisor views the nature and seriousness of the violation as well as its potential for interfering with the election process.
We order Local Union 89 to direct that TITAN mailing lists for candidate mailings requested by the protestor be transmitted by email to L&D Mail Masters in a form that will allow L&D to apply the addresses to the material to be mailed by a laser process.
A decision of the Election Supervisor takes immediate effect unless stayed. 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 Supervisor 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 the parties, as well as upon the Election Supervisor for the International Brotherhood of Teamsters, c/o Orrick, Herrington, & Sutcliffe LLP, 1725 K Street, N.W., Suite 1400, Washington, D.C. 20006-1416, all within the time prescribed above. A copy of the protest must accompany the request for hearing.
Richard W. Mark
Election Supervisor
cc: Kenneth Conboy
2005ESD 11
DISTRIBUTION LIST (BY EMAIL UNLESS OTHERWISE SPECIFIED):
Patrick J. Szymanski
General Counsel
International Brotherhood of Teamsters
25 Louisiana Avenue, N.W.
Washington, D.C. 20001
pszymanski@teamster.org
Bradley T. Raymond
Finkel, Whitefield, Selik, Raymond, Ferrara & Feldman
32300 Northwestern Highway
Suite 200
Farmington Hills, MI 48334
braymond@fwslaw.com
David J. Hoffa, Esq.
Hoffa 2006
30300 Northwestern Highway, Suite 324
Farmington Hills, MI 48834
David@hoffapllc.com
Barbara Harvey
645 Griswold Street
Suite 3060
Detroit, MI 48226
barbaraharvey@comcast.net
Ken Paff
Teamsters for a Democratic Union
P.O. Box 10128
Detroit, MI 48210
ken@tdu.org
David Thornsberry
785 Kingswood Drive
Taylorsville, KY 40071
davidthorny@msn.com
Fred Zuckerman, President
Teamsters Local Union 89
3813 Taylor Blvd.
Louisville, KY 40215
fzuckerman@teamsters89.com
Robert Colone
Teamsters Local Union 89
3813 Taylor Blvd.
Louisville, KY 40215
rmcolone@teamsters89.com
Ann Curry Thompson
Kelman Loria, PLLC
660 Woodward Avenue, Suite 2300
Detroit, MI 48226
acthom@kelmanloria.com
United Rank & File Slate
P.O. Box 991175
Louisville, KY 40269-1175
Rankandfile2005@msn.com
Joe F. Childers
201 West Short Street, Suite 310
Lexington, KY 40507
childerslaw@yahoo.com