IN RE: EARL WALKER, Protestor.
Protest Decision 2006 ESD 248
Issued: May 16, 2006
OES Case No. P 06 189-022806-MW
Earl Walker, principal officer and delegate candidate of Local Union 614, 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 alleged that the "Reduce the Dues Restore the Pension UTAH" slate ("UTAH slate") used a copy of the actual ballot for the delegate and alternate delegate election as campaign literature.
Election Supervisor representatives William C. Broberg and Joe Childers investigated this protest.
Findings of Fact
The printer's proof of the ballot to be used in Local Union 614's delegate and alternate delegate election was distributed to candidates for their review before printing. Investigation showed that Dennis Meyer, local union secretary-treasurer, gave a copy of the proof to Jeff Duncan, candidate for alternate delegate on the UTAH slate, for proofreading. Meyer acted at the direction of Joe Medrano, the election officer for Local Union 614's delegate and alternate delegate election. Medrano handwrote the word "sample" in 3 places on the proof ballot.
Following release of the proof ballot to Duncan, copies of the ballot appeared on a number of bulletin boards at employers under the jurisdiction of the local union, with a check mark in the box for the UTAH slate. The copies still showed "sample" in the 3 places where Medrano wrote the word. In addition, the word "copy" appeared on the ballot 5 times; the word appeared to be produced by a stamp available at office supply stores. Finally, a bold line was drawn around the language of the voting instructions that restated the Rules' prohibition on interference with voting.
This protest followed. Protestor Walker asserted that the UTAH slate "has called into question the integrity of the Local 614's delegate election with the possibility, if not the likelihood, that they have flooded the voting block with copies of actual ballots. In any case I think their use of voting material will certainly have a negative impact on the remaining candidates and they should be penalized accordingly."
Walker subsequently requested to withdraw his allegation that the sample ballot could be used to vote fraudulently. Walker recognized that the safeguards the Rules establish eliminate the possibility that a ballot obtained from a copy of a proof could be cast and counted. The possibility of such occurrence here is lessened by the alterations that were added to the ballot after it left Meyer's hands, including the stamping of "copy" across text of the voting instructions and the bold line drawn around a portion of those instructions.
Walker maintained, however, that the posting of the proof ballot on bulletin boards violated the Rules as impermissible campaigning.
Analysis
Use of a sample ballot as campaign literature does not violate the Rules, where the alterations to it clearly convert it to campaign literature. The proof ballot here "is not deceptive or misleading because the alterations … clearly transformed the draft ballot into campaign literature." Newhouse, P388 (February 21, 1996) (box for a particular slate was checked; ballot marked "sample."); see also, Antoskiewicz, P452 (February 28, 1996) (no violation to use sample ballot as campaign literature where box of 1 slate was checked and the names of the candidates on the opposing slate were "printed in very light and broken letters, making them almost impossible to read"); Kieffer, P360 (March 19, 1996) (substantial alteration no violation); and Tibbits, P432 (February 29, 1996) (no violation where ballot extensively altered). As the Election Officer in Newhouse explained:
The use of sample ballots was examined by the Election Officer in the [1991] election, and the principles announced in those decisions still apply.
The Rules … secure for all candidates the freedom to fully exercise political rights through solicitations, support and the distribution of campaign literature. The Election Officer has consistently applied the Rules so as to safeguard the exercise of these political rights. The Rules neither prohibit nor regulate the content of campaign literature.
Rogers, P518 (February 21, 1991). See also Hughes, P499 (February 21, 1991); Hammontree, P530 (February 25, 1991).
The goal to be protected is free speech. The alterations to the draft marked "official ballot" from the Election Office demonstrate that the literature is not the official ballot. Beyond that concern:
[T]he Election Officer's duty is to 'insure fair, honest, open and informed elections.' This essential goal is achieved by supporting a 'policy of encouraging free and open debate in internal union affairs' . . . The model for free and fair Union elections is that of partisan political elections . . . The cardinal principle is that the best remedy for untrue speech is more free speech, with the electorate being the final arbiter.
Landwehr, P201 (November 15, 1995) (citations omitted).
Here, placing a check mark in the box for the UTAH slate clearly converted the proof ballot to campaign literature, the content of which we will not regulate.
Accordingly, we DENY 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 248
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, 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
Earl Walker, President
IBT Local Union 614
131 University Drive
Pontiac, MI 48342
Jeff Duncan
1583 Giddings Road
Pontiac, MI 48348
Joe F. Childers
201 West Short Street, Suite 310
Lexington, KY 40507
childerslaw@yahoo.com
Bill Broberg
1108 Fincastle Road
Lexington, KY 40502
wcbroberg@aol.com
Jeffrey Ellison
510 Highland Avenue, #325
Milford, MI 48381
EllisonEsq@aol.com