IN RE: ERIC JENSEN, Protestor.
Protest Decision 2006 ESD 167
Issued: April 25, 2006
OES Case No. P-06-171-022406-MW
(See also Election Appeals Master decision 06 EAM 37)
Eric Jensen, a member of Local Union 320, 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 a subordinate body of the local union made a prohibited endorsement in Local Union 320's delegate and alternate delegate election.
Election Supervisor representatives Joe Childers and Jeffrey Ellison investigated this protest.
Findings of Fact
Local Union 320 is a large local union comprised predominantly of public employees. A significant segment of its membership is employed by the University of Minnesota at the university's various campuses.
In late February and shortly before ballots were mailed in the delegate and alternate delegate election, an oversize postcard was mailed to all members employed by the university. The words "From Your University Negotiating Committee" were printed in large letters on the side of the postcard bearing the recipient's address, the bulk mail permit, and return address. The reverse of the postcard carried a campaign message that lauded the Sue Mauren slate. The portion of the postcard relevant to this protest read as follows:
Dear University Teamster Member:
As members of the 2005 University Negotiating Committee, we are writing to ask you to vote for the Sue Mauren Local 320 Members' Slate as delegates to the 2006 International Brotherhood of Teamsters Convention.
When talks had stalled during negotiations for our last contract, Sue Mauren stepped in and was able to help the committee settle one of the best contracts in recent memory.
***
You will receive a ballot in the mail around February 28th. As members of your elected Negotiating Committee, we urge you to support and vote for the Sue Mauren Local 320 Members' Slate.In Solidarity, Your Negotiating Committee,
The postcard bore the signatures and names of 12 persons who had served on the negotiating committee in 2005. The remaining members of the committee of 16 did not sign; 3 of those who did not sign were candidates on the slate opposing the Sue Mauren slate while the 4th supported that opposition slate.
The postcard was not mailed or distributed to members employed by other employers.
The collective bargaining agreement at the University of Minnesota is negotiated every 2 years; the contract's expiration date coincides with the legislature's biennial fiscal appropriations to the university. The union negotiating committee is authorized by local union bylaws to represent the bargaining unit membership pursuant to the "meet and negotiate" language of the public employment labor relations statute. Minn.Stat. 179A.07(a)(2). Most members are selected for the negotiating committee by election, although some hold positions on the committee because of their positions as stewards. Those elected need not satisfy the 24-month continuous good standing requirement of Article II of the IBT constitution. Further, members who are elected are not formally nominated and seconded for such positions; instead, the local union solicits "suggestions" of members who should serve on the committee. Once the suggested names are collected, the local union conducts a mail-ballot election to determine the composition of the committee. Candidates are permitted to submit brief biographies and goals to the local union, which in turn distributes a compilation of the biographies with the mail-ballots.
The most recent round of contract negotiations resulted in a new two-year contract to replace the contract that expired June 30, 2005. In anticipation of such bargaining, the negotiating committee was selected in the first half of 2005. Thereafter, the committee met with university management in a series of bargaining sessions that extended past the expiration date of the existing contract. A new tentative agreement was reached in September 2005 and was ratified by mail-ballot in October 2005. The negotiating committee completed its work upon ratification of the new collective bargaining agreement. It has not met since that time as a committee.
Historically, the university negotiating committee ceases function once the new contract is ratified. Our investigation found only one instance in which a negotiating committee reconvened after a contract was ratified; such reconvening occurred when the employer proposed a mid-term modification of the collective bargaining agreement to modify the fringe benefits package the contract provided. The 2005 university negotiating committee has not reconvened for any purpose since the date the contract was ratified.
The postcard mailer was not printed or mailed with union funds. The return address on the front of the postcard listed Dave Golen and a post office box in Minneapolis that was not that of the local union; Golen was a candidate on the Sue Mauren slate.
The protest stated in its entirety that "[t]he Mauren slate in local 320 has done a mailing to University of Minnesota 320 members stating that the negotiating committee for that bargaining unit has officially endorsed the Mauren slate. This violates the election rules' prohibition on endorsement of slates by the union."
Analysis
We begin our analysis with the well-settled principle in our precedents that content of campaign literature generally lies outside our authority to regulate. See Sandford, 2006 ESD 142 (April 3, 2006), and cases collected there. To the extent that the protest concerns whether the postcard deceptively implied that the negotiating committee collectively decided to endorse the Mauren slate, the Election Supervisor does not regulate the content of campaign material, even statements that are false. The Rules allow for uninhibited, robust and wide-open campaign debate, and if there are remedies for misstatement or deception in campaign literature they exist outside of the Rules. Other members of the negotiating committee who were not signatories on the postcard were free to make their own statements about the delegate candidates, and to identify themselves as committee members when doing so.
While the content of campaign literature is generally unregulated, Article VII, Section 12(b) of the Rules forbids endorsements by the union and its subordinate bodies. Thus:
An endorsement of a candidate may be made by a Union officer or employee, but solely in his/her individual capacity. The Union or a Local Union as such or the General Executive Board or an Executive Board of a Local Union as such may not endorse or otherwise advance a candidacy, even if all members agree on the endorsement or candidacy. [Emphasis added.]
Precedents under this provision make clear that endorsements by the Union or Local Union are prohibited. Thus, Hoffa, P954 (September 23, 1996), held that a local union's executive board impermissibly endorsed candidates for International office; see also, Custer, P1098 (November 18, 1991) (the statement "Teamsters Local 673's Executive Board unanimously endorse the Shea-Ligurotis Action Team" held an impermissible endorsement by a union body); Pope, 2000 EAD 3 (August 1, 2000) (endorsement resolution adopted at formal meeting of construction trades conference held improper); Jensen, 2001 EAD 479 (September 28, 2001), aff'd, 01 EAM 93 (October 3, 2001) (invitation to campaign rally from "the elected officers and business agents" of the local union violated the Rules).
While the Rules prohibit endorsements by the Union or a Local Union, endorsements by individuals are permitted even when the endorsement identifies the member by an official union position. Thus, Election Officer Holland in Moriarty, P1071 (November 15, 1991), found no violation when a letter contained endorsements from every member of the local union executive board, each board member's name and title, and a statement that "the members" of the board unanimously endorsed a certain slate. The Election Officer explained, "[T]he Rules do not prohibit the members of an Executive Board from identifying themselves as such when [endorsing] candidates; as long as the endorsement is not made as an official endorsement of the Executive Board as an entity, but as individual endorsements by the members of the Executive Board, the Rules are not violated." The Rules and Election Office precedent were applied in 2001 to permit a flyer headed with the words "A Message From Your President" that endorsed a slate of candidates in the local union's delegate election and was signed by the individual, Phil Young, with the designation "President of Local 41." Jones, 2001 EAD 222 (March 8, 2001). The Election Administrator held that the endorser had the same right to endorse as any other member and used his title to identify himself and not to convey official union action. See also, Sandford, 2006 ESD 142 (April 3, 2006). In allowing the flyer, the Election Administrator wrote:
The relevant precedent reveals a distinction between an endorsement by a local union institution, which is prohibited, and an endorsement by individual members who comprise a local union institution, which is permitted. [Citing Hoffa and Custer]. . . .
"[T]he Rules do not prohibit the members of an Executive Board from identifying themselves as such when [endorsing] candidates; as long as the endorsement is not made as an official endorsement of the Executive Board as an entity, but as individual endorsements by the members of the Executive Board, the Rules are not violated." [Citation omitted]. In Custer, the Election Officer reiterated the distinction: "While members of the Local Union and Local Union officers have the right as individuals to express their preferences for particular candidates, the Local Union and the Local Union Executive Board as institutions cannot … endorse candidates."
Jones, 2001 EAD 222 (March 8, 2001) (emphasis added).
Under the Rules and Election Office precedents, endorsement by the Union or Local Union "as such" is essential to finding a violation of Article VII, Section 12(b). Our precedents have given broad scope to individuals, and to groups of union members, who have endorsed candidates and used their titles for identification purposes in connection with the endorsement. What we have strictly prohibited under the Rules are endorsements that come from the Union or Local Union "as such."
Here, the postcard announced on the front that it was a message "From Your University Negotiating Committee." The body of the message identified "members of the 2005 University Negotiating Committee" as the endorsers of the Mauren slate and was signed "Your Negotiating Committee." Significantly, at the time the postcard was mailed to Local Union 320 members employed at the University of Minnesota, the negotiating committee was defunct and had been for several months following the ratification of the new collective bargaining agreement in October 2005. We find that members employed by that employer understood that the committee had ceased functioning after the ratification, as has been the case in past negotiations.
Accordingly, we DENY the protest. The negotiating committee did not exist or have any official function at the time the postcard was mailed, and the recipient members employed at the University of Minnesota - the only recipients of the postcard - understood that. Because the committee had not existed or functioned for many months as of the time of this mailing, it could not issue an endorsement with even the apparent official imprimatur of the Local Union.1
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 167
1 A different question would be presented had the delegate campaign occurred concurrently with the University of Minnesota negotiations and had a postcard like this one been mailed at that time. Under those circumstances the negotiating committee would have had an existence and function supported and paid for by Local Union 320. Depending on the particular facts, an endorsement of that type could violate the ban on local unions providing direct or indirect contributions to a candidate (Article XI, Section 1(b)(3)) and/or the ban on endorsements by a local union "as such" (Article VII, Section 12(b)).
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
Erik Jensen
4345 11th Avenue South
Minneapolis, MN 55407
Jense028@umn.edu
Susan Mauren, Secretary-Treasurer
Teamsters Local 320
3001 University Avenue SE #500
Minneapolis, MN 55414
William Broberg
1108 Fincastle Road
Lexington, KY 40502
wcbroberg@aol.com
Joe F. Childers
201 West Short Street, Suite 310
Lexington, KY 40507
childerslaw@yahoo.com
Jeffrey Ellison
510 Highland Avenue, #325
Milford, MI 48381
EllisonEsq@aol.com