IN RE: NEIL POTTS, Protestor.
Protest Decision 2006 ESD 111
Issued: February 27, 2006
OES Case No. P-06-153-021606-AT
(See also Election Appeals Master decision 06 EAM 14)
Neil Potts, a member of Local Union 639, 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"). He alleged Business Agent Billy Lindell campaigned for the Members First slate while time paid for by the local union.
Election Supervisor representative J. Griffin Morgan investigated this protest.
Findings of Fact
Shawn Pulman was a Local Union 639 member who worked for UPS for 13 years. He is now an employee of Costco and not a union member. He was initially represented by Art D'Amico, who was a local union business agent before he was voted out of office as a member of a losing slate in an officer and business agent election. While his business agent, D'Amico encouraged Pulman to accept a suspension rather than take his grievance to a full panel where he might lose his job. After the local union officer and business agent election, D'Amico was replaced by Billy Lindell. Pulman suffered some additional disciplinary action and in April 2005, while represented by Lindell, resigned his UPS job.
On February 13, 2006, between 2:30 and 2:55 p.m., Pulman received a call at work from Lindell; the phone number that registered on Pulman's cell phone caller I.D. was a local union number, which Pulman recognized as such. Pulman recounted the conversation as follows: Lindell said Pulman got a bad deal when D'Amico represented him; he asked Pulman to write a statement that D'Amico had dropped the ball and represented him poorly; and he said it was important to keep the current business agents in the union and that "there is an election coming up." Pulman responded by asking Lindell to write the statement and send it to him.
Later that day, Pulman received a voice message from Lindell asking Pulman if he remembered that when D'Amico handled his grievance, D'Amico had his family in the parking lot and was in a hurry to go on vacation. Pulman did not return the message.
Lindell admits that he was working on February 13 and that he called Pulman for a campaign and not a work-related purpose. He first denied that he called Pulman on the local union's phone but then admitted doing so. He says that shortly after he placed the call, he realized that he could not make the call on a union phone. Lindell states that when he realized his mistake, he hung up. He then went on his lunch hours, left the union hall and called Pulman on a personal cell phone.
Analysis
Article VII, Section 12(b) of the Rules states that "officers and employees (and other members) of the Union may not campaign on time that is paid for by the Union. Campaigning incidental to regular Union business is not, however, violative of this section. Further, campaigning during paid vacation, paid lunch hours or breaks, or similar paid time off is not violative of this section.
The "incidental" exception does not protect campaigning outside of normal interaction in the course of a union official's duties. Hoffa, P865 (August 26, 1996), aff'd, 96 EAM 232 (September 6, 1996). The "incidental" exception does not apply where the campaign activity is not incidental to regular union business. Id.
In addition, Article VII, Section 12(c) of the Rules prohibits use of union resources in campaigning. Thus:
(c) Union funds, facilities, equipment, stationery, personnel, etc., may not be used to assist in 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. . . .
Any use of union resources in campaigning is prohibited no matter how isolated or slight. Milligan, 2001 EAD 156 (February 12, 2001) (use of union office to gain access to employer premises); Richards, 2000 EAD 5 (August 1, 2000) (use of local's computer, paper, etc.); Yeakel, P762 (June 5, 1996) (display of campaign hats in union office); Miller, P504 (April 23, 1996) (use of union hall as a location to pick up a campaign raffle prize); Olsen, P172 (November 1, 1995) (use of union telephone for three calls of short duration to assist in campaigning during work time a violation).
Here, Lindell used a union phone to make a campaign-related phone call from his union-provided office on time paid for by the union. Pulman was no longer a member of the union, so there was no union business reason to call Pulman. Lindell conceded each of these points.
Accordingly, we GRANT this protest.
Remedy
When the Election Supervisor determines that the Rules have been violated, he "may take whatever remedial action is deemed 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 Lindell to cease and desist from using union resources to campaign. We further order Lindell to sign the attached Notice and post it on all union bulletin boards under the jurisdiction of the local union for a period of thirty consecutive days; Lindell must complete the posting within two (2) business days of receipt of this decision.
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
885 Third Avenue, Suite 1000
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, 1725 K Street, N.W., Suite 1400, Washington, D.C. 20007-5135, 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
2006 ESD 111
NOTICE TO TEAMSTER MEMBERS FROM
BILLY LINDELL, BUSINESS AGENT OF LU 639
The Election Supervisor has found that I violated the Rules for the 2005-2006 IBT International Union Delegate and Officer Election ("Rules") when I campaigned on union-paid time from my union-provided office by making a campaign-related telephone call using a union-provided telephone. The Election Supervisor has ordered me not to use union resources to campaign, and to sign this Notice and post it on all Union bulletin boards within the local union's jurisdiction.
The Rules protect the right of all IBT members to run for delegate, alternate delegate and International office and to support candidates of their own choosing for those offices. The Rules prohibit use of union resources to support or oppose any such candidates..
The Election Supervisor will not permit any such improper campaign activity.
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 Richard W. Mark, Election Supervisor, 1725 K Street, N.W., Suite 1400, Washington, D.C. 20007-5135, telephone: 888-IBT-2006, fax: 202-454-1501, email: electionsupervisor@ibtvote.org.
_______________________________________
Billy Lindell
Business Agent, IBT Local Union 639
This notice has been approved by Election Supervisor Richard W. Mark and must remain posted for thirty (30) consecutive days.
DISTRIBUTION LIST (BY EMAIL UNLESS OTHERWISE SPECIFIED):
Bradley T. Raymond, General Counsel
International Brotherhood of Teamsters
25 Louisiana Avenue, NW
Washington, DC 20001-2198
braymond@teamster.org
Sarah Riger, Staff Attorney
International Brotherhood of Teamsters
25 Louisiana Avenue, NW
Washington, DC 20001-2198
sriger@teamster.org
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
blmharvey@sbcglobal.net
Ken Paff
Teamsters for a Democratic Union
P.O. Box 10128
Detroit, MI 48210
ken@tdu.org
Judith Brown Chomsky
P.O. Box 29726
Elkins Park, PA 19027
jchomsky@igc.org
Stephen Ostrach
1863 Pioneer Parkway East, #217
Springfield, OR 97477-3907
saostrach@gmail.com
Neil Potts
492 Lewis Street
Front Royal, VA 22630
Shawn Pullman
904 Marshall Drive, N.E.
Leesburg, VA 20176
Billy Lindell
9111 Congressional Court
Alexandria, VA 22309
Thomas Ratliff, President
Local Union 639
3100 Ames Place, N.E.
Washington, DC 20018
J. Griffin "Griff" Morgan
Elliot, Pishko, Morgan
426 Old Salem Road
Winston-Salem, NC 27101
jgmorgan@epmlaw.com
Jeffrey Ellison
510 Highland Avenue, #325
Milford, MI 48381
EllisonEsq@aol.com