IN RE: DONALD RAY HARDISON, Protestor.
Protest Decision 2006 ESD 158
Issued: March 28, 2006
OES Case No. P-06-229-032006-AT
(See also Election Appeals Master decision 06 EAM 28)
Donald Ray Hardison, a member of Local Union 822, 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 asserted that James Wright, President of Local 822, used his position as local union president to campaign from the podium during the March 11, 2006 general membership meeting.
Election Supervisor representative J. Griffin Morgan investigated this protest.
Findings of Fact
The delegate election in Local Union 822 is a contest between two slates. The Wright/West slate consists of local union officers and is headed by local union president James Wright. The Rank and File slate consists of local union members and is headed by Donald Ray Hardison. The ballots were mailed on February 23, 2006 and are scheduled to be counted on March 31, 2006.
In Protest Decision 2006 ESD 115 (February 27, 2006), the Election Supervisor determined that President Wright violated Article VII, Section 5 of the Rules by making disparaging remarks about his opponent from the podium during the February 11, 2006 general membership meeting, without providing his political opposition an equal pre-planned opportunity to campaign. The Election Supervisor ordered Wright to cease and desist from using his union position to campaign from the podium during union meetings without offering an equal opportunity to all other candidates. The Election Supervisor also ordered that Wright post on all union bulletin boards a Notice that contained the following language:
The Election Supervisor has found that I violated the Rules for the 2005-2006 IBT International Union Delegate and Officer Election ("Rules") by campaigning from the podium at a union meeting without offering an equal opportunity to all other candidates and providing advance written notice of that opportunity. The Election Supervisor has ordered me not to use my union position to campaign from the podium at union meetings, and to sign this Notice and post it on all Union bulletin boards under the jurisdiction of the local union.
At the next membership meeting held on March 11, 2006, Wright spent between 5 and 10 minutes speaking from the podium about the 2002 dues increase. Wright explained that the Carey administration tried to raise members' dues but that the dues increase was voted down by the membership. Wright told the membership meeting that the IBT then closed the Conferences in order to save money. Wright then explained why he supported the last increase in membership dues. Wright also explained how a member's dues were calculated. Wright also mentioned that he voted twice for Ron Carey.
During these remarks from the podium, Wright stated that he spoke about dues because recently he had been getting questions from members about a dues increase. He further stated that he had received the questions as a direct result of the Rank and File slate's campaign material opposing a dues increase, acknowledging that it was a major issue in the Rank and File slate's campaign materials. Wright further stated that he was explaining his position on the dues increase at that particular membership meeting only because the dues increase had become a campaign issue. Wright stated that he had not received questions about the dues during the membership meeting.
There were 35 members at the membership meeting. The minutes of the membership meeting contain an abbreviated version of Wright's comments on membership dues.
Analysis
The Rules govern candidate access to membership meetings and the opportunity to campaign during a meeting. Article VII, Section 5(a)(3) and (4) provide the following:
(3) The Local Union need not allot time for campaigning during any of its meetings. However, if campaigning during such meetings is permitted, the Local Union shall notify all candidates for the positions for which such campaigning will be permitted of the opportunity to speak at least five (5) days prior to the meeting and shall divide the time equally between those candidates (or candidates' credentialed representatives) who request an opportunity to speak. The order of appearance shall be determined by lot.
(4) A Local Union shall not discriminate or permit discrimination in favor of or against any candidate in conjunction with its meetings or otherwise. This requirement shall apply not only to formal presentations by or on behalf of candidates but also to informal campaign activities, such as, for example, comments on candidates during meetings, literature distribution at meetings, literature distribution tables, etc.
The Rules thus set forth campaigning procedures for union meetings which are non-discriminatory and require pre-planning. Opportunities to campaign at any union meeting must be made equally available to all candidates with advance notice. Weronke, P306 (January 31, 1996); Kapitula, P1104 (November 22, 1991). Otherwise, any campaigning at union meetings violates the Rules. Wigley, P668 (April 18, 1996)(disparaging opposition from podium during union meeting constitutes illegal campaigning).
In this case, Wright, a candidate for delegate, spoke from the podium in response to campaign literature circulated by the slate he opposes. Wright admitted that he would not have spoken at the membership meeting on the subject of dues increases had they not been made a campaign issue by his political opponents. Accordingly, his presentation explaining his support for the last dues increase constituted campaigning during the union meeting, and such campaigning violated the Rules because it was carried out without offering opportunity, on advance notice, for all candidates to exercise the identical right to campaign from the podium at the same meeting.
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.
In Hardison, 2006 ESD 115 (February 27, 2006), appeal withdrawn, 06 EAM 20 (March 8, 2006), we found that Wright had committed the identical Rules violation we find he committed here. In the prior case, we ordered Wright "to cease and desist from using his union position to campaign from the podium during union meetings without offering an equal opportunity to all other candidates and giving advance written notice of that opportunity, as required by the Rules."1 Wright not only has repeated the same Rules violation in this case, he has violated our order that he cease and desist from such improper activity.
Under Article I of the Rules, we are enjoined to take all necessary action "to ensure fair, honest, open and informed elections." The remedy we imposed in the prior case was fashioned to "(a) to achieve political balance and fairness in the wake of an advantage accruing to one side as a result of a violation; (b) to broadly inform the rank and file of the meaning, interpretation and application of the Rules; (c) to strengthen the protest procedure, its credibility, and the institutions of electoral democracy throughout the IBT; and (d) to deter intentional or inadvertent violations of the Rules, thus promoting broad respect for the IBT, raising the consciousness and pride of the rank and file, and reducing future protest cases throughout the election cycle." Richards, 00 EAM 1 (August 14, 2000), affirming 2000 EAD 5 (August 1, 2000). By repeating his violation a mere 12 days later, Wright destroyed three of the four objectives of the remedy we had imposed. We do not take disregard of our remedial authority lightly.
Accordingly, we impose the following remedy:
1) We order Wright once again to cease and desist from using his union position to campaign from the podium during union meetings without offering an equal opportunity to all other candidates and giving advance written notice of that opportunity, as required by the Rules;
2) We further order Wright to sign the attached Notice, post it on all union bulletin boards under the jurisdiction of the local union and to maintain that posting for a period of thirty (30) consecutive days, and to mail it, by first class mail at his own expense, to every member of the local union. Such posting and mailing must be completed within three (3) working days of the date of this decision. The local union is authorized to supply Wright with one set of mailing labels for the purpose of completing this mailing. Otherwise, the local union may not supply clerical, photocopying, or office supply assistance, and Wright shall not use any union-paid time in complying with this remedy.
3) We further order Wright to pay a fine to the Office of the Election Supervisor in the amount of $1,000 within three (3) working days of the date of this decision.
4) Wright shall submit an affidavit of compliance to our office within two (2) working days of completing the remedy specified in paragraphs 1) through 3), above. Should Wright fail to complete this remedy within the time prescribed, he will be required to show cause why he should not be disqualified as a candidate for delegate.
5) Ballots in the local union delegate and alternate delegate election will be counted on March 31, 2006. We expressly reserve the authority inherent in Article XIII, Section 4(t) to refuse to certify the results of that election if it appears that the Rules violations documented here may have affected the results of that election.
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 158
1 We also ordered Wright to post a notice of his violation.
NOTICE TO TEAMSTERS MEMBERS FROM
JAMES WRIGHT, PRESIDENT OF LU 822
In a decision issued February 27, 2006, the Election Supervisor found that I violated the Rules for the 2005-2006 IBT International Union Delegate and Officer Election ("Rules") by campaigning from the podium at a union meeting without offering an equal opportunity to all other candidates and providing advance written notice of that opportunity. The Election Supervisor ordered me not to use my union position to campaign from the podium at union meetings, and to sign this Notice and post it on all Union bulletin boards under the jurisdiction of the local union.
On March 11, 2006, I violated the Rules and the Election Supervisor's order by again campaigning from the podium at a union meeting without offering an equal opportunity to all other candidates and providing advance written notice of that opportunity. In a decision issued March 28, 2006, the Election Supervisor has again ordered me not to use my union position to campaign from the podium at union meetings. The Election Supervisor has further ordered me to sign this Notice, post it on all Union bulletin boards under the jurisdiction of the local union, and mail it to all members of Local Union 822 at my own expense. The Election Supervisor has also ordered me to pay a fine in the amount of $1,000 for my repeated violation of the Rules.
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 position 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.
_______________________________________
James Wright
President, IBT Local Union 822
This notice has been approved by IBT 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
Daniel E. Clifton
Lewis, Clifton & Nikolaidis, P.C.
275 Seventh Avenue, Suite 2300
New York, NY 10001
dclifton@lcnlaw.com
Stephen Ostrach
1863 Pioneer Parkway East, #217
Springfield, OR 97477-3907
saostrach@gmail.com
Donald Ray Hardison
2158 Kingsley Lane
Chesapeake, VA 23323
James Wright, President
Local Union 822
P.O. Box 12673
Norfolk, VA 23502
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