IN RE: BLAIR KENNY, Protestor.
Protest Decision 2006 ESD 220
Issued: May 30, 2006
OES Case Nos. P-06-107-020106-NE
Blair Kenny, a member and alternate delegate candidate of Local Union 118, 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 Local Union 118 impeded the protestor's right to post campaign literature on worksite bulletin boards, in violation of the Rules.
Election Supervisor representative Steven R. Newmark investigated this protest.
Findings of Fact
On January 20, 2006, protestor Kenny made written request to local union secretary-treasurer Chris Toole for "a list of all worksites within Local 118 and their locations." In addition, the letter requested the following:
I would also like a complete list of all 148 Union Bulletin Boards that you have access to including:
(a) the number and location of each bulletin board;
(b) the employer name, street address, job site, building number, floor, parking lot, ect [sic]; and
(c) the name and title of the Local Union Agent responsible for posting and maintenance.I would like to post a campaign flyer at each of these locations, please let me know as soon as possible how this can be accomplished in the most expeditious, efficient and convenient way possible.
Toole responded by letter to Kenny dated January 24, enclosing a list of all companies signatory with Local Union 118 and their addresses. By separate letter of the same date, Toole denied the protestor's request for a list of bulletin board sites. Toole cited the Rules and stated that "no where [in the Rules] is your right to access all Company Union bulletin boards mentioned."
The protestor alleges that his ability to campaign effectively was restricted by Toole failing to provide specific bulletin board information. The protestor told our investigator that it is geographically impossible to campaign in person at every worksite and therefore he wanted to post campaign materials on the bulletin boards at the worksites. According to the protestor, once he received Toole's second letter that told him he was not entitled to access worksite bulletin boards, he did not attempt to contact any of the worksites.
The local union election plan submitted by Local Union 118 to our office indicated that the local union has access to 148 union bulletin boards. An attachment to the plan included a listing identifying the specific location of each bulletin board, viz.
Certain sections of the 2006 Rules require the local union Secretary-Treasurer to post various nomination and election-related materials on union bulletin boards. The term "Union Bulletin Board" means any bulletin board to which the international union or local union has access for the purpose of posting information concerning the business and/or activities of the union and includes bulletin boards at the office of the Union as well as bulletin boards located on employer premises.
16. Does your local union have bulletin boards which meet the above definition?
[ ] Yes [ ] No
If No, please describe below how your local union normally distributes written material to members:
If Yes, please state the total number of union bulletin boards to which your local has access:
16a. Please attach a current, complete list of the bulletin boards to which your local has access. (A model form is attached to this plan.) The attachment should identify:
(a) The number and location of each bulletin board;
(b) The address of each union office;
(c) The employer name, street address, job site, building number, floor, parking lot, etc; and
(d) The name and title of the local union agent responsible for posting and maintenance.
Local Union 118 answered "yes" to question 16. In response to question 16a, the local union attached a list of union bulletin board locations with the specifics required by that question.
Our investigation found that the local union election plan was distributed at the nominations meeting. Whether the copies distributed included the attachment listing the locations of union bulletin boards is disputed. Toole believed the complete plan was distributed; Kenny's request suggests that the bulletin board attachment was missing.
Analysis
Under Article II, Section 4(c) of the Rules, "[o]nce a Local Union Plan is submitted to the Election Supervisor, the Local Union shall make the complete plan available for inspection at its office by the International Union, any subordinate body, any member of the Local Union submitting the Plan and any candidate for International office. In addition, each of the foregoing shall have the right to obtain, upon request, a copy of the Plan from the Local Union at no cost." Under this provision, Kenny had the right to the complete plan, including the bulletin board attachment, merely by asking for it. We find that Local Union 118 provided Kenny with information required by the Rules on the location of worksites. Furthermore, Kenny either actually received, or had access to, specific information about the location of union bulletin boards and could therefore exercise his right to post literature on those bulletin boards where a pre-existing right existed to post campaign materials.
However, Kenny's January 20 letter to Toole was substantially broader than a request for the locations of union bulletin boards. He asked to have the local union post his campaign literature on those boards. Nothing in the Rules requires the local union to perform such a service for a candidate. Indeed, Article VII, Section 12(c) prohibits union assistance 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." Neither this subrule nor any other provision of the Rules requires the union to provide the assistance Kenny sought here.
Accordingly, we DENY this 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 220
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
David J. Hoffa
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
Chris Toole
Local 118 Secretary-Treasurer
1393 South Avenue
Rochester, NY 14620
David F. Reilly, Esq
22 West Main Street
North Kingston, RI 02852
dreilly@rooltd.com
Steven R. Newmark
1725 K Street, NW Suite 1400
Washington, DC 20005
snewmark@ibtvote.org
Jeffrey Ellison
510 Highland Avenue, #325
Milford, MI 48381
EllisonEsq@aol.com