IN RE: PAUL GARCIA, Protestor.
Protest Decision 2006 ESD 193
Issued: April 20, 2006
OES Case Nos. P-06-214-031306-FW
(See also Election Appeals Master decision 06 EAM 31 & 06 EAM 38)
Paul Garcia, president and delegate candidate of Local Union 404M, 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 alleges that secretary-treasurer/vice president Doug Brown, also a delegate candidate, violated the Rules in several respects.
Election Supervisor representative Michael Four investigated this protest.
Findings of Fact and Analysis
The protestor made three separate allegations concerning the activities of his opponent for delegate, Doug Brown.
First, the protestor alleged that on March 2, 2006, at about 2:20 p.m., he heard Brown tell the local union's bookkeeper, Joyce Novick, that he was going to start labeling the envelopes for his campaign mailer and that he wanted the labels he previously had requested. The protestor alleged that this behavior violated the Rules because 1) Brown was to affix the labels himself rather than have the work done by the election committee or local union staff; 2) he was to perform the task on union-paid time, and 3) he was granted the benefit of the union membership list that the protestor was denied notice of.
According to Brown, he indeed labeled his campaign material on March 2, but did so in front of the election committee only after providing Novick with a written request for the labels pursuant to the local union's written policy. A copy of the request was provided to the investigator. Brown agreed that he asked for the labels at approximately 2:20 that afternoon; however, he states that he did not receive the labels from Novick until about 4:15 p.m. Brown states that he began affixing the labels around 4:45 p.m, after his work day had ended. When he completed labeling his campaign literature, the election committee took the envelopes to the post office where they were mailed. The labels were never out of view of the election committee.
On these facts, we find that Brown prepared his campaign mailing properly. Article VII, Section 7 of the Rules requires each local union to establish procedures for distributing delegate candidates' literature. Brown made his request for labels pursuant to the local union's written policy. The Rules do not prevent delegate candidates from affixing labels to campaign literature themselves, rather than having an election committee or local union staff member do so. The local union's interest in preventing the unauthorized copying and dissemination of the membership list was served by the election committee's close monitoring of the labeling process here. With respect to the allegation that Brown affixed the mailing labels to his campaign literature while on union-paid time, we find that he labeled his mailing after his work day had ended. Therefore, we find no violation with respect to the campaign mailing.
Accordingly, we DENY this aspect of the protest.
The protestor's second allegation is that Brown asked Steve Moore, an election committee member and shop steward, to post two campaign flyers on bulletin boards at his place of employment, Continental Color Craft. The protestor claims that Brown was on union-paid time when he made the request and Moore was on employer-paid time when he posted the materials. Both Moore and Brown agreed that this incident took place between 11:30 a.m. and noon. Brown said he asked Moore to take a break, which Moore confirmed; however, Moore did not clock out. Moore admitted to our investigator that he posted the campaign posters on company time. However, Moore claims that he did not deviate from his assigned tasks or interfere with others' work while making the postings; further, he states he has made such postings indiscriminately in the past when other candidates have asked him to post their material. Brown contends that the request was incidental to union business because he was at a nearby union facility and decided to go to Moore's place of employment, just a few blocks away. He did not claim that he was on a break or lunch period when making the visit to Continental.
The Rules prohibit local union officers from campaigning on union-paid time, except where such campaigning is incidental to regular union business:
No candidate or member may campaign during his/her working hours. Campaigning incidental to work is not, however, violative of this section. Further, campaigning during paid vacation, paid lunch hours or breaks, or similar time off is also not violative of this section.
***
No member may campaign for him/herself or for any other candidate during time that is paid for by the Union or by any employer. However, campaigning incidental to work or regular Union business or during paid vacation, paid lunch hours or breaks, or similar paid time off is not violative of the campaign contribution rules.
Rules, Article VII, Section (12)(a) and Article XI Section (1)(b)(7).
With respect to Brown's visit to Moore during union-paid time and his request that Moore post his campaign flyers at Moore's place of employment, we must assess whether such campaign activity is incidental to union business. To do so, we examine whether the activity caused an employee to fail to perform work, deviate from prescribed duties, or interfere with another employee's work. Pinder, 2006 ESD 133 (March 7, 2006), and decisions collected there. The overriding purpose of the incidental exception is to insure that employees may interact normally during the course of their on-the-job activities. George, P490 (April 4, 1996). However, the incidental exception does not cover campaign activity distinct in time or place from the employee's normal work. Id.
Measured against these precedents, we find that Brown's delivery of campaign posters to Moore for posting was not incidental to Brown's performance of union business. We reach this conclusion because Brown had no union business at Continental Color Craft on the day in question and was present there only to deliver his campaign posters. Further, he did not claim that he was on a break or lunch period when making the visit. Accordingly, we find that he deviated from his duties to travel the few blocks from his last appointment to Continental Color Craft to deliver the posters. Even though Brown's visit at Continental was short and his deviation from his prescribed duties therefore brief, the Rules do not permit such campaign activity on union-paid time where it falls outside the incidental exception. Accordingly, we GRANT this aspect of the protest.
In contrast to our conclusion with respect to Brown, we find that Moore's posting of Brown's campaign posters while on work time was incidental to Moore's duties and therefore not in violation of the Rules. Moore did not deviate from his prescribed duties or interfere with other employees' work. The campaign activity at issue was of very brief duration. In sum, Moore's actions meet the hallmarks of incidental campaign activity as our precedents define it. Accordingly, we DENY the protest's allegation concerning Moore's posting of Brown's campaign material.
The protestor's final allegation is that Brown obtained free or discounted printing of his campaign material from at least one union printer. Brown used 3 separate union printers to print or prepare various materials for his campaign: Harmon Press, Union Press and Kater Litho. With respect to Harmon Press and Union Press, both jobs were paid shortly after receipt of the material when he received the invoices. Brown provided evidence of payment of $22.09 to Harmon Press. Harmon performed a small copying job, not printing, hence the low price.
Brown used Union Press to do stuffing and mailing of literature. He presented an invoice for $500.12 that he paid on February 25, 2006.
Brown hired Kater Litho to print 75 "mini posters." Brown stated that he asked union member Gene Mayer, who works at Kater, to prepare the posters for him. When they were completed, Mayer, who lives close to Brown, called him on the telephone and said he could pick them up at his house. When Brown did so, he asked Mayer how much he owed, and Mayer said that he would get back to him on it.
Brown admits that as of the time Garcia filed his protest on March 13, he had not received a bill from Kater and therefore had not paid for the posters even though he received them several weeks before. Brown subsequently obtained an invoice from Kater in the amount of $50 and paid it by check dated March 20. Evidence of invoice and payment was provided to our investigator.
We investigated whether Brown received a discount on the posters that Kater printed.
Discounts on goods or services do not constitute campaign contributions so long as they are not established specifically for use by campaigns or independent committees in the 2005-2006 IBT Election and are "available to the customers of the supplier." Rules, Definitions, § 5(c). Our Advisory on Campaign Contributions, Expenditures and Disclosure (January 2006), elaborates on this point as follows:
The first requirement is met if the practice of vendors providing customer discounts on goods/services is a common or accepted practice of the vendor or within the relevant industry. The second requirement is met if such a discount is offered to all customers and not just to a specific campaign or independent committee. The type of discount and its terms must be available to all similarly situated customers of the vendor and not be specifically created for the individual purchaser.
The purchase of discounted goods/services by an IBT member from a vendor does not constitute a campaign contribution by the vendor if the terms of the purchase are commercially reasonable. Gilmartin, 95 EAM 45 (December 18, 1995). In situations where there is more than one producer of an item, the commercially reasonable price is set by the market. Whether the vendor offers similar terms to other purchasers of his product is also relevant. Gilberg, P284 (September 20, 1991), aff'd, 91 EAM 194 (October 2, 1991). In the case of a unique product produced by a single producer with a limited customer base, the determination will depend on whether all of the costs of production and distribution, as well as reasonable profit, were covered by the sale price. Carter, P457 (April 26, 1996).
The posters Brown hired Kater to print were done by laser, a less expensive process than printing. However, they featured considerable color, which increases the price. The protestor offered no direct evidence that the $50 price Brown paid for 75 posters represented a discount from market price, and our investigation found none, even though the fact that an invoice was not presented until well after the work was completed may suggest that the price charged is not directly related to the market value of the goods produced.
Given the invoices and receipts produced by Brown, we find no evidence that Brown obtained free or discounted printing of his campaign material as the protest alleged.
Accordingly, we DENY this aspect of the 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.
To remedy Brown's improper campaigning on union-paid time, we order the following:
1. Brown shall cease and desist from further campaign activity on union-paid time;
2. Within 3 working days of receipt of this decision, Brown shall sign and post on all union bulletin boards the notice attached to this decision;
3. Within 3 working days of receipt of this decision, Brown shall pay a fine to the Office of the Election Supervisor equal to one-half of one hour's pay; and
4. Within 2 working days of completing the remedy ordered here, Brown shall submit an affidavit of compliance to our office.
The fine we order is calculated to approximate the value of the time Brown expended in deviating from his assigned duties to travel the few blocks to Continental Color Craft to deliver his campaign material to Moore. If Brown is a salaried employee of the local union, the fine shall be calculated by dividing his annual salary by 4,160.
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 193
NOTICE TO ALL MEMBERS OF
LOCAL UNION 404M FROM
DOUG BROWN
The Rules for the 2005-2006 IBT International Union Delegate and Officer Election ("Rules") prohibit a union officer or employee from campaigning while on time paid for by the union, unless the campaign activity is incidental to union business.
The Election Supervisor has found that I violated the Rules by deviating from my assigned duties to deliver campaign posters to a facility where I had no pending union business.
The Election Supervisor will not permit such a violation of the Rules.
I have been ordered to cease and desist from campaigning on union-paid time. I have also been ordered to sign and post this notice on all union bulletin boards under the jurisdiction of the local union and to pay a fine to the Office of the Election Supervisor equal to one-half of one hour's pay.
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.
_______________________________________
Doug Brown
Secretary-Treasurer/Vice President
Local Union 404M
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 Clifton
Lewis, Clifton & Nikolaidis, P.C.
275 Seventh Avenue, #2300
New York, NY 10001
dclifton@lcnlaw.com
Stephen Ostrach
1863 Pioneer Parkway East, #217
Springfield, OR 97477-3907
saostrach@gmail.com
Paul Garcia, President
GCC/IBT Local Union 404M
518 West Duarte Road
Monrovia, CA 91016
Doug Brown, Vice President
GCC/IBT Local Union 404M
501 West Duarte Road
Monrovia, CA 91016-4435
Douglas117@aol.com
Steven G. Moore
612 Hacienda Drive
Monrovia, CA 91016
Michael D. Four
Schwartz, Steinsapir, Dohrman & Sommers, LLP
6300 Wilshire Blvd. Suite 2000
Los Angeles, CA 90048-5202
mdf@ssdslaw.com
Jeffrey Ellison
510 Highland Avenue, #325
Milford, MI 48381
EllisonEsq@aol.com