IN RE: ROBERT MacWILLIAM, Protestor.
Protest Decision 2006 ESD 252
Issued: May 18, 2006
OES Case Nos. P-06-217-031306-HQ
(See also Election Appeals Master decision 06 EAM 41)
Robert MacWilliam, a member of Local Union 31, 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 Stan Hennessy, principal officer of Local Union 31 and a candidate for delegate on the Hennessy-Peterson Unity slate ("Hennessy slate"), used local union funds for campaign purposes and interfered with pre-existing political rights to post campaign material on union bulletin boards, in violation of the Rules.
Election Supervisor representative Maria Giardini investigated this protest.
Findings of Fact
Local Union 31 is based in Vancouver, British Columbia, where the bulk of its members are employed. The local union also maintains contracts with employers in the Yukon Territory and services those members through a satellite office in Whitehorse, Yukon Territory. The protestor is a shop steward at Real Canadian Superstore in Whitehorse, a position he has held for a number of years.
On February 27, 2006, Hennessy made an unannounced trip from Vancouver to Whitehorse, ostensibly to inspect the Local Union 31 satellite office there. After arriving in Whitehorse, Hennessy met with Jure Kelava, who is employed by the local union both as its director of organizing and also as business agent for Whitehorse-area employers. Kelava was in Whitehorse on a monthly visit that was regularly scheduled as a three day event.
Kelava's predecessor as business agent was Don Evans, who held that position for approximately 20 years until Hennessy terminated him immediately after Hennessy was elected local union president. The termination led to litigation that produced an award in excess of $100,000.00 to Evans for wrongful termination. Evans remains a member of the local union and ran for alternate delegate to the 2006 IBT convention on the Team 31 slate, a slate of candidates that opposed the Hennessy slate. Notwithstanding the enmity between Hennessy and Evans, Evans' wife continues her employment as a clerical employee of the local union in the Whitehorse office.
Upon Hennessy's arrival in Whitehorse on February 27, he and Kelava proceeded to the local union office. Later in the evening, they went to MacWilliam's place of employment and visited the lunchroom on the premises. In that lunchroom is a locked union bulletin board. As shop steward, MacWilliam holds the only key to the bulletin board. Although the bulletin board is reserved for union business, it had been used for campaign material in previous local union elections.
At the time of the visit, the bulletin board held two pieces of material related to the delegate and alternate delegate election. The first was a campaign advertisement for the Team 31 slate and the second was a flyer ostensibly prepared by the "Campaign to Elect Anyone But the Hennessy-Peterson Unity Slate," which attacked Hennessy personally for his dismissal of Evans; the flyer compared Hennessy to Donald Trump ("Trump poster").
The following morning, February 28, Kelava met with MacWilliam at the local union office. Among the matters discussed were the posters on the bulletin board in the breakroom at MacWilliam's workplace. Kelava advised MacWilliam that Hennessy had been in Whitehorse on union business the previous day and, while at the Superstore had seen the political posters in the breakroom. Kelava advised MacWilliam that the bulletin boards were reserved for union business and that if any political materials were to be displayed, they had to be acknowledged by or attributed to a candidate for office. He advised MacWilliam that the Trump poster had appeared in the Vancouver area and had been disavowed by the leader of the Team 31 slate, Rob Smith. Kelava stated that, as a result, the Trump poster was not appropriate for the bulletin board and must be removed.
Near the end of the meeting, Kelava advised MacWilliam that he had been asked by a representative of the Hennessy slate to request that MacWilliam post campaign material for that slate on the bulletin board at the Superstore. He gave MacWilliam two posters, and MacWilliam posted them on the bulletin board at the same time he removed the Trump poster.
When the protest was filed, Kelava told our investigator that he acted on his own in making the distinction between materials attributed to a candidate and anonymously published materials. MacWilliam provided no evidence that contradicted this point or implicated Hennessy in Kelava's instructions to MacWilliam to remove the anonymous campaign material. Instead, MacWilliam merely inferred that Kelava was acting at Hennessy's behest.
We do not credit MacWilliam's inferences. First, as indicated, they are his assumptions and are not based on facts. Second, our investigator concluded that MacWilliam was not completely forthcoming in his responses to her questions. Thus, although MacWilliam acknowledged that Don Evans had provided the Team 31 campaign posting for the bulletin board, he said he did not know who had provided the Trump poster. This was not credible because MacWilliam possessed the only key to the bulletin board and was, we conclude, present when the flyer was posted. Kelava told our investigator that subsequent to the Hennessy visit to Whitehorse, Don Evans appeared at the local union office and asked Kelava about the rule requiring candidates to "sign" or otherwise acknowledge campaign materials before they can be included on union bulletin boards. Evans then acknowledged that he was the source of the Trump poster and had asked MacWilliam to post it at Real Canadian Superstore.
MacWilliam's version of the February 28 meeting with Kelava also lacks credibility. He reported that Kelava told him to remove both the Trump poster and the Team 31 material but that he disobeyed the order of his business agent and removed only the Trump poster. In contrast, Kelava stated that he told MacWilliam to remove only the anonymous material (i.e., the Trump poster). We credit Kelava's version of the story because it is consistent with his subsequent action of giving MacWilliam the Hennessy materials to post. It is also consistent with Kelava's recounting of his subsequent conversations with Evans where, after Evans had acknowledged being the source of the Trump poster, Kelava told him that he could return it to the bulletin board as it was now a "candidate acknowledged." According to Kelava, Evans did not accept the offer to restore the material to the bulletin board.
With respect to the protest's allegation that Hennessy traveled to Whitehorse solely for campaign purposes, MacWilliam told our investigator that he learned from a source he did not identify that Hennessy had received complaints about materials posted on the Superstore bulletin board. He stated that Hennessy admitted this allegation to him in a letter, but the letter produced did not contain any complaints about bulletin board postings. No evidence was presented or discovered that Hennessy engaged in any campaign activity during his trip.
The Hennessy slate won Local Union 31's delegate and alternate delegate election. On 1,726 valid ballots counted, the margin between the winning delegate candidate with the fewest votes and the losing delegate candidate with the most votes was 353 votes.
Analysis
MacWilliam's protest alleges two violations of the Rules by Hennessy:
• Hennessy's alleged action limiting the right to post campaign literature on the Real Canadian Superstore bulletin board to materials attributable to or acknowledged by candidates, which resulted in the removal of the Trump poster, results in an infringement of the political rights of the member or members who distributed the materials; and
• Hennessy's trip to Whitehorse, ostensibly on union business and paid for by Local Union 31, was precipitated by the desire to remove the Trump poster and was, therefore, an impermissible use of union funds in support of his candidacy. Moreover, Hennessy's instruction to Kelava, a union employee, to have the Trump poster removed from the bulletin board as well as to have posters supporting the Hennessy slate posted was an additional use of a union asset to further Hennessy's political ends.
As for the first charge, a requirement that limits the right to post political material to that which on its face is acknowledged by or attributable to a candidate violates the Rules. Article VII, Section 12(d) of the Rules states that "[n]o restrictions shall be placed upon candidates' or members' preexisting rights to use employer or Union bulletin boards for campaign publicity … Such facilities and opportunities shall be made available to all candidates and members on a non-discriminatory basis." As the Real Canadian Superstore bulletin board had been used for campaign material during the previous officer election, the right to post campaign literature in the 2006 delegate election was pre-existing and ran both to candidates and members.
It is well-settled that the content of a candidate's campaign material is explicitly protected from censorship by the Union under the Rules. For example, Article VII, Section 7(f) protects the content of candidate literature submitted to the Union for distribution by the Union to its membership, stating: "The Union may not censor, regulate, alter or inspect the contents of any candidate's campaign literature. The Union may not refuse to process or distribute any candidate's literature on the basis of its contents." Further, where the Rules bestow the right to publish campaign literature in Teamster magazine and on the Union's website to accredited or nominated candidates, the prohibition against content censorship is extended to the Election Supervisor as well as the Union. "The Election Supervisor and the Union may not regulate or alter the content of any candidate's or slates' material, or disclose such content, prior to its publication." Article VII, Section 10(c).
Moreover, Article VII, Section 12(a) protects all members' rights "to distribute campaign literature," and grants "members of the Union … the reciprocal right to hear or otherwise receive such campaign advocacy." Under this provision, the removal of a campaign flyer from a workplace bulletin board was held to violate the Rules. Noll & Riccio, 2001 EAD 294 (March 31, 2001), aff'd, 01 EAM 56 (April 6, 2001). The Trump poster was clearly campaign material. Its title expressly sought to elect anybody but Hennessy. Further, it placed candidate Hennessy in an unfavorable light and attributed a number of statements to the candidate, and the entire piece was presented as a parody or lampoon, meant to ridicule Hennessy and his slate of candidates.
While the evidence does not establish definitively whether Kelava directed the removal of the Trump poster on his own authority or at the behest of Hennessy, that determination is unnecessary to our finding that the removal of the poster violated the Rules.
Accordingly, we GRANT this aspect of the protest.
On the allegation that Hennessy's visit to Whitehorse was to campaign rather than to conduct union business, MacWilliam failed to provide any evidence to substantiate this charge, and our investigation found none.
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.
We direct Local Union 31, its officers, business agents, and representatives not to interfere with any preexisting right of candidates or members to post campaign material on union bulletin boards. In particular, we direct these representatives not to discriminate against campaign material that on its face is not acknowledged by or otherwise attributed to a candidate.
We further direct Local Union 31 to post on all union bulletin boards under the jurisdiction of the local union the notice attached to this decision.
We order no further relief. Specifically, we do not order that the local union rerun its delegate and alternate delegate election. We determine that the violation found here, removal of the Trump poster, was limited to one worksite in a large local union, and did not affect the results of the election. We further find that Evans, the source of the poster, was offered the opportunity to repost the poster shortly after it was removed, and he declined that opportunity.
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 252
[OES letterhead]
NOTICE TO ALL MEMBERS OF LOCAL UNION 31 FROM THE ELECTION SUPERVISOR FOR THE INTERNATIONAL BROTHERHOOD OF TEAMSTERS
The Rules for the 2005-2006 IBT International Union Delegate and Officer Election ("Rules") prohibit any interference with the pre-existing rights of candidates and members to post campaign material on employer and Union bulletin boards.
The Election Supervisor has determined that a business agent of Local Union 31, Jure Kelava, violated this provision of the Rules by ordering that an anonymous campaign flyer be removed from a Union bulletin board.
The Election Supervisor will not tolerate such a violation of the Rules.
The Election Supervisor has ordered Local Union 31, its officers, business agents, and representatives not to interfere with any preexisting right of candidates or members to post campaign material on Union bulletin boards. In particular, the Local Union and its representatives are directed not to discriminate against campaign material that has been posted anonymously or otherwise does not identify, on the material itself, the candidate who is the source of the material.
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.
__________________________________________
Richard W. Mark
Election Supervisor for the
International Brotherhood of Teamsters
Dated:
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
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
Robert MacWilliam
923-833 Range Road
Whitehorse, YT
Y1A 3A7
CANADA
Don Evans
174 Rainbow Road
Whitehorse, YT
Y1A 5E2
CANADA
sourdough@klondiker.com
Ross Peterson
12408 193 B Street
Pitt Meadows, BC
V3Y 1A4
CANADA
Stan Hennessy, President
IBT Local Union 31
#1 Grosvenor Square
Delta, BC
V3M 5S1
CANADA
Maria Giardini
400 Fourth Avenue, SW
Suite 3000
Calgary, AB T2P 0J4
CANADA
mgiardini@davis.ca
Gwen Randall
400 Fourth Avenue, SW
Suite 3000
Calgary, AB T2P 0J4
CANADA
grandall@davis.ca
Jeffrey Ellison
510 Highland Avenue, #325
Milford, MI 48381
EllisonEsq@aol.com