IN RE: BLAIR KENNY, Protestor.
Protest Decision 2006 ESD 190
Issued: May 17, 2006
OES Case Nos. P-06-075-011906-NE and P-06-123-020206-NE
(See also Election Appeals Master decision 06 EAM 40)
Blair Kenny, a member and alternate delegate candidate of Local Union 118, filed two pre-election protests pursuant to Article XIII, Section 2(b) of the Rules for the 2005-2006 IBT International Union Delegate and Officer Election ("Rules"). The protests alleged that Local Union 118 President Steve Mazza and Secretary-Treasurer Chris Toole posted defamatory remarks about the protestor on a Teamsters website and ordered the protestor to remove references to Local 118 from his own website in retaliation for his running for alternate delegate. We have consolidated these protests for decision.
Election Supervisor representatives Steven Newmark and David Reilly investigated these protests.
Findings of Fact and Analysis
1. Defamatory remarks on message board. The protest alleged that Mazza and Toole posted defamatory remarks about the protestor on an internet Teamster message board located at www.co294.com. According to the protestor, the anonymous comments made on the website must have been made by Mazza and Toole because they were the only ones with knowledge of certain facts to which the remarks referred.
Assuming - without deciding - that the protest's allegation is true, we DENY this aspect of the protest based upon the content of the internet message board. The Election Supervisor does not regulate the content of such material, even statements that are false or defamatory. See Sandford, 2006 ESD 142 (April 3, 2006), and decisions collected there. Thus, even if the message board postings were actionably libelous, we are precluded by the Rules from censoring them.
2. Rochester Teamsters Charity Foundation website. The protestor owns and operates a website called "Rochester Teamsters Charity Foundation" located at www.watchmenof118.com. According to the protestor, the website was used for campaigning prior to its establishment as a charity website. The website featured pictures of Local Union 118 members participating in a variety of charitable events. The Rochester Teamsters Charity Foundation ("foundation") is not a registered charity under New York law.
According to the protestor, in October 2005, he and fellow Local Union 118 member Mike LaRocca met with Tiffany Cooper, the president of the BTA Federal Credit Union, to set up a payroll deduction authorization so that interested members of Local Union 118 could donate to the charity through payroll deduction.
In November and December 2005, LaRocca met with Mazza to determine which organizations to contact and support on behalf of Local Union 118. They decided to support two organizations: Alternative for Battered Women and the Unified Mission. Local Union 118 and the foundation then provided money, supplies, and volunteers to both organizations during the holiday season.
Thereafter, according to Toole, Mazza delegated to Toole the responsibility of working on the charity project. The protestor stated to our investigator that in late December 2005, after the foundation received contributions from two local politicians, Toole requested that the protestor remove all Local Union 118 insignia, slogans, and symbols from the foundation website.
The protest alleged that local union officers supported the foundation until the protestor was nominated as an alternate delegate candidate. After the nominations meeting on January 4, 2006, secretary-treasurer Toole requested that the protestor remove any mention of Local Union 118 and all Teamsters logos from the website. The protestor alleged that this action was retaliatory because it taken immediately after he was nominated for alternate delegate.
Toole told our investigator that he requested removal of the Local Union 118 material from the foundation website because he was concerned about potential liability arising from members or third parties associating the local union with the foundation website and with the operation of the foundation. Toole stated that the website gave the impression that Local Union 118 was running the site and the organization, and that any donations made to the charity would be tax deductible. Toole understood, however, that the foundation was not established as a Section 501(c) charity under the Internal Revenue Code nor was the foundation listed with the Charities Bureau of the New York State Attorney General's Office; accordingly, donations to it would not be tax deductible. Toole was concerned about the foundation's lack of rules or accountability concerning selection of the organizations and activities the foundation would support. Toole set out his concerns in writing in a letter to the protestor dated January 13, 2006. Toole denied that he made this request because of the protestor's candidacy; instead, he stated he would have taken the same action regardless of a pending election.
According to Toole, when the protestor failed to take action following receipt of this letter, Toole directed attorney Mike Harren to report the foundation to the New York State Attorney General. The protestor did not remove the Local Union 118 material from the foundation website until after the ballot count. The protestor was not elected as an alternate delegate.
Our investigation revealed the following timeline of events:
November 2005: Foundation website launched.
November 21, 2005: The foundation distributed 40 turkey dinners to striking workers at Caldwell manufacturing from money collected from fellow Teamsters.
November 30, 2005: Way Labor Awards Dinner where Mazza, Toole, and Vice President Gene DeLorme received awards for charity work. The protest alleged that the award that Mazza received for charity work was for work initiated by the foundation.
December 7, 2005: Foundation brochures were distributed to all local union members attending Local Union 118's general membership meeting. According to the protest, the protestor spoke from the podium to promote the foundation. The protestor claims that Local Union 118 reimbursed him for brochure printing costs.
December 20, 2005: The foundation delivered gift cards valued at $800 to the Caldwell strikers. Mazza donated a $100 gift for the event. State Senator Joe Robach and Assemblywoman Susan John also donated $100 to the foundation for the Caldwell strikers.
December 2005: Toole orally requested that the protestor remove Teamsters and Local Union 118 logos, slogans, or symbols from the foundation website. The protestor admits this request was made, and asserts it was provoked by donations to the foundation from elected officials.
January 4, 2006: The protestor is nominated as an alternate delegate candidate. Mazza and Toole form the Unity slate with eight other candidates. The protestor was not a member of the Unity slate.
January 17, 2006: The protestor received a letter from Local Union 118 signed by Toole which ordered the protestor to "[r]emove all mention of Local 118 from your site and any reference to Local 118 and their implied endorsement of your activities; [and] remove any and all names, pictures and comments from Officers and Business Agents of Local 118 immediately." The letter further stated that the protestor would face legal action should he fail to comply.
January 31, 2006: Mike Harren, an attorney retained by Local Union 118, wrote to Attorney General Eliot Spitzer of the New York State Department of Law Charities Bureau protesting "the continued unauthorized use of the Local's name and logo in connection with an unregistered charity and website."
February 27, 2006: Delegate and alternate delegate election count held. The protestor lost his nomination bid.
Early March 2006: Protestor removed logos and name from charity website.
Article VII, Section 11(f) of the Rules prohibit "retaliation or threat of retaliation by the International Union, any subordinate body, any member of the IBT, any employer or other person or entity against a Union member, officer or employee" when directed toward the exercise of any election-related right. See Parisi, P1095 (December 2, 1991). A protest claiming retaliation cannot be sustained unless a threat or an actual act of retaliation is established. Giacumbo, P100 (October 13, 1995), aff'd, 95 EAM 27 (October 25, 1995).
Proving a retaliation case requires three elements: 1) activity in question is protected under the Rules; 2) the charged party has actual or constructive knowledge of that protected activity; and 3) the protected activity was a motivating factor in the decision or the conduct at issue. The existence of a reasonable independent basis for the decision or conduct at issue is a defense to an allegation of improper motivation so long as it is not shown to be a pretext. There can be no violation if the decision maker would have taken the same action in the absence of the protected activity. Ulloa, 2001 EAD 135 (February 6, 2001); Ruscigno, 2001 EAD 105 (January 26, 2001); Pope, 2000 EAD 39 (October 17, 2000); Hoffa, P857 (September 11, 1996), aff'd, 96 EAM 234 (September 19, 1996). In other words, a retaliation case is analyzed under the Rules just as a discrimination case is under the NLRA. See generally Wright Line, 251 NLRB 1083 (1980), enf'd, 662 F.2d 899 (1st Cir. 1981), cert. denied, 455 U.S. 989 (1982).
While all relevant parties knew the protestor was a candidate for alternate delegate and that he ran the foundation website, our investigation revealed no evidence that Toole requested the protestor to disassociate Local Union 118 from the foundation in retaliation for the protestor's candidacy. Toole's statement that he would have terminated the affiliation regardless of the protestor's candidacy does not appear to be a pretext. Toole first requested removal of the Local Union 118 material from the foundation website before the protestor had been nominated for alternate delegate and, according to the protestor, made the request for reasons unrelated to the election. Toole's stated concern that Local Union 118 might appear to be sponsoring the incorrect representation that foundation contributions would be tax deductible was founded on the fact that the foundation did not have IRS approval as a 501(c) organization, and not on any political animosity towards the protestor. Under the circumstances presented here, Toole's request did not violate the Rules. We note that the protestor disregarded Toole's request and maintained the Local Union 118 logos, symbols, and slogans on the foundation website until after the election was complete. Thus, in the context of the delegate election, Toole's request had no effect at all.
Accordingly, we DENY this aspect of the protest.
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 190
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
Blair T. Kenny
276 Ridgedale Circle
Rochester, NY 14616
Steve S. Mazza
Local 118 President
1393 South Avenue
Rochester, NY 14620
Chris Toole
Local 118 Secretary-Treasurer
1393 South Avenue
Rochester, NY 14620
Michael T. Harren, Esq.
1600 Crossroads Building
Two State Street
Rochester, NY 14614-1397
David F. Reilly, Esq
22 West Main Street
North Kingston, RI 02852
dreilly@rooltd.com
Steven Newmark
Office of the Election Supervisor
International Brotherhood of Teamsters
1725 K Street, N.W., Suite 1400
Washington, DC 20006
snewmark@ibtvote.org
Jeffrey Ellison
510 Highland Avenue, #325
Milford, MI 48381
EllisonEsq@aol.com