Protest Decisions

IN RE: DEL VIEHLAND, Protestor.
Protest Decision 2006 ESD 271
Issued: May 23, 2006
OES Case No. P-06-209-031006-GP

(See also Election Appeals Master decision 06 EAM 47)

Del Viehland, member and delegate candidate from Local Union 682, 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 local union 1) failed to provide a current work site list in response to Viehland's written request, and 2) mailed a union newsletter to all members that constituted union-supported campaigning, both in violation of the Rules.

Election Supervisor representative Mary Ann Campbell investigated this protest.

Findings of Fact and Analysis

1. Worksite lists.

Protestor Viehland was nominated for delegate at the nominations meeting held February 7, 2006. He and 3 other candidates formed the Pride slate. On February 15, Viehland hand-delivered to the local union a written request for a current worksite list. On February 22, local union secretary-treasurer Thomas Wright telephoned Viehland and said the list had just been mailed. Viehland received a master contract list on February 24; he does not challenge the promptness of the local union's response.

Viehland alleged, however, that the list the local union produced was outdated. He and the other members of his slate reviewed the list and soon recognized that many shops included on the list were either closed, were no longer union shops, or employed substantially different numbers of members than the list indicated. Visits to many of the worksites reinforced Viehland's conclusion that the list contained many discrepancies. Thus, he learned that some employers he visited were no longer union, while others had substantially fewer employees than the list indicated. Ed Kimbrell, another member of the Pride slate, had the same experience. He sought to target independent trucking companies but found that many on the list had gone non-union. Bill Christensen, another Pride slate member, told our investigator that it was discouraging to visit an employer on the list only to learn that no members of the local union worked there. According to Kimbrell, the inaccurate list caused the slate to spend a lot of time and resources "chasing ghosts."

Viehland filed this protest on March 9. In response to the protest, Fred Littrell from the local union telephoned Viehland and asked why Viehland had filed the protest. Viehland replied that the list was no good. Littrell said the list was good. Viehland repeated that it was not and asked why the local union had not provided a good list. Littrell told Viehland to come and get the good list.

Kimbrell picked up a second master contract list on March 16. The second list was dated March 1, 2006 and contained names and worksite addresses of 384 employers, compared with the original list's 700 worksites. Of the 384 employers on the second list, 62 did not appear on the original one.

Local union secretary-treasurer Thomas Wright told our investigator that the local union does not update its worksite list because frequent worksite changes make it impossible to keep the list current. Wright confirmed that the first list provided to the protestor was an old master contract list. That list was attached to the local union election plan for the 2001 delegate and alternate delegate election and had not been updated since that time. Wright attached it to the 2005 local union election plan he submitted to our office on September 13, 2005; he included a transmittal letter that stated the list was "accurate to the best of his knowledge." Wright further told our investigator that the old worksite list was the only list the local union had at the time Viehland made his request and was used by the local union and its business agents to conduct union business and by the opposing slate for campaigning. When asked why he did not update the worksite list when submitting the 2005 local union election plan, Wright told our investigator he "just didn't get it done." He stated, however, that Pride slate member Kimbrell had been employed as a business agent by the local union until 2004 and should have been able to determine which of the 700 employers on the old list still employed local union members.

Less than a week after the local union produced the old, inaccurate list to Viehland, it prepared the second, current list. Wright explained that the local union prepared the second list because the International Union sought to collect per capita dues from the local union based on the original list, which showed a membership total 16% higher than the current membership level.

The tally of ballots was conducted March 30. On 514 valid ballots counted, the results among delegate candidates show the following:

The results among alternate delegate candidates were as follows:

The 3 delegate candidates and 1 alternate delegate candidate on the Proud slate prevailed over the Pride slate in the election. Given the margin of victory, 35 challenged ballots were not resolved.

Article VII, Section 1(b) of the Rules provides as follows:

Each delegate candidate, each alternate delegate candidate and each nominated or accredited International Officer candidate shall have the right to a current list of all sites, with corresponding addresses, where any and all Union members work. Requests for such worksite lists shall be made to the pertinent Local Union's Secretary-Treasurer or principal officer in writing and shall be honored within five (5) days. Such worksite lists shall be arranged by employer name.

Under this provision, candidates are entitled to updated worksite lists on request. Adamo, P638 (March 27, 1996). The worksite list must be accurate and the secretary-treasurer or principal officer of each local union is responsible for fulfilling the local union's obligation to produce an accurate list. A local union is required to provide an updated list on its own initiative where the nature of the industry in which members work is such that worksites often change. Bianchi, P307 (February 12, 1996).

With the worksite list Wright provided to Viehland on February 24, Wright caused the local union to fall far short of its obligation under the Rules. We find that Wright acted in bad faith when he produced a list that the Rules required to be "current" but that had not been updated in at least 5 years, had nearly double the number of worksites listed than actually existed in the local union, and was substantially inaccurate in the number of members employed at most locations.

The purpose of the Rules provision granting candidates access to listings of current worksites in a delegate election is to level the playing field between incumbent local union officer candidates and candidates who are rank-and-file members. Where the former group, because of their duties as union officials, should know where members work and can use that knowledge to campaign, rank-and-file challengers, whose most effective campaign technique is face-to-face contact in employee parking lots, must rely on the worksite list the local union provides to determine where potential voters can be found. A substantially inaccurate list - as in this case - is equivalent to providing no list at all. It is no defense to a protest alleging a violation of this provision that a candidate should know which employers employ members and which do not.

The second list the local union provided was of little use. First, it was dated March 1, 2006, but Wright and the local union did not even make it available until after Viehland filed this protest on March 9. Because of the poor quality of the original list and because worksites change frequently in this local union, the second list should have been produced to Viehland without a request. When the second list finally was produced, it came too late to be of much use to the challengers because ballots were mailed on March 9 and tallied on March 30. Further, it was not "arranged by employer name" as the Rules require.

Finally, we note that the local union was required to update its worksite list when preparing the local union election plan in September 2005. Article II, Section 4(b)(10) required the local union election plan to include "the addresses of all sites where one (1) or more members of the Local Union is then employed, with corresponding names of employers." That Wright attached a list he knew or should have known was at that point at least 4 years old and told us that it was "accurate to the best of my knowledge" constituted an effort on his part to deceive us with respect to the currency of the list.

For all these reasons, we GRANT this aspect of the protest.
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.
Wright made a misrepresentation to the Office of the Election Supervisor when he submitted with the local union election plan a work site list he knew to be outdated and inaccurate. Wright deprived the Pride slate of information it had sought, and to which it was entitled, for campaign purposes, when he supplied that same outdated and inaccurate list in response to the Pride slate's request for work site information. Wright's conduct deprived the Pride slate of a fair opportunity to learn from Local Union 682 where the local union members were employed. This is unacceptable conduct for any local union.

Under any other circumstance, we would order that the delegate and alternate delegate election be re-run. We would further order that the local union bear the complete cost of a campaign mailing for the Pride slate to all members of the local union to remedy the substantial handicap Wright placed on that slate with his conduct documented here.

We do not order such relief only because the members of the Pride slate have requested that we not do so, citing the expense to the local union of conducting a rerun election. We accede to the request of the Pride slate.

However, we will not tolerate Wright's deception as documented here. A principal officer of a local union bears a great responsibility to insure that the local union's delegate and alternate delegate election is free and fair. This is the case even though the principal officer often stands as a candidate in that election. Where the principal officer knowingly fails to administer the process in an equitable manner, we will not certify him as a delegate.

Accordingly, under authority granted by Article XIII, Section 4(c) of the Rules, we disqualify Thomas Wright from serving as delegate to the IBT convention. We also order Wright, within 3 working days of receipt of this decision, to sign and post the notice attached to this decision on all union bulletin boards under the jurisdiction of the local union. Finally, we order Wright to submit an affidavit of compliance to our offices within 2 working days of completing the remedy ordered here.

As a result of Wright's disqualification, the alternate delegate elected on the Proud slate, Charles Meier, will be certified as elected in Wright's stead.

2. Local union newsletter as improper campaigning.

Viehland's protest also alleged that Local Union 682 mailed a newsletter to members timed to arrive just before the ballots were mailed. The newsletter was the first published since September 2004. Viehland alleged that the timing of the newsletter violated the Rules, arguing that it constituted campaigning because it included Wright's name and picture.

Wright confirmed the local union mailed a newsletter to members on February 27, but denied it was intended to be a campaign effort for his slate. Wright stated that the timing was coincidental. He does not consider any of the items included in the newsletter to be campaign material for his slate of candidates.

The newsletter consisted of 4 pages. The first page contained an article by Wright titled "Building a New Local 682;" it discussed the local union's plans to produce its newsletter quarterly; it also included a call for solidarity. The article was flanked by Wright's photo. Also on the first page were an article announcing a fundraiser for the local union's PAC and another seeking suggestions for the newsletter's name.

The second page included a business agent's article explaining the circumstances when a picket line is not the optimal way to pressure an employer to meet the union's demands. The page also included a photo calling for donations of memorabilia for the local union's display case.

The third page was devoted to the local union's bass tournament.

The final page included a photo and article about the local union's new flag pole, and a second article about the IBT's James R. Hoffa scholarship fund.

The newsletter made no reference to the delegate or alternate delegate election, nor did it overtly praise incumbent union officials or criticize any rank-and-file members.

Article VII, Section 8(a) of the Rules, "no publication or communication financed, directly or indirectly, by a Union may be used to support or attack any candidate or the candidacy of any person."

Where the tone and content of union-financed publications are politically neutral, as here, a Rules violation will generally not be found based solely on the timing of the publications. As the Election Appeals Master explained in Hicks, 06 EAM 22 (Marcy 15, 2006), affirming 2006 ESD 110 (March 2, 2006), "elected local officers should not, and cannot, be constrained by the Rules from discharging their responsibilities to the membership in reporting on matters of vital interest, as long as the reportage is politically neutral."

On these facts, we find that the newsletter did not violate the Rules. 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
Suite 1000
885 Third Avenue
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. 20006-1416, 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 271

NOTICE OF ALL MEMBERS OF TEAMSTERS LOCAL UNION 682 FROM THOMAS WRIGHT, SECRETARY-TREASURER

The Rules for the 2005-2006 IBT International Union Delegate and Officer Election ("Rules") require the Local Union to produce a current list of all worksites to the Election Supervisor and to any candidate for delegate and alternate delegate who requests it.

As Secretary-Treasurer of Local Union 682, I was responsible for producing a current list of all worksites to the Election Supervisor when I submitted the Local Union Election Plan for the Delegate and Alternate Delegate Election. Instead of preparing and producing a current list, I submitted a list of worksites that was at least 4 years old and inaccurate in substantial ways. I told the Election Supervisor that the list was "accurate to the best of my knowledge" when I actually knew that the list was outdated and inaccurate.

I produced this same worksite list that I knew was at least 5 years old and inaccurate in substantial ways to a candidate in the delegate and alternate delegate election who had requested a current list and had a right to such a list under the Rules. A current list was not made available to the requesting candidate until the delegate and alternate delegate election was well underway.

The Election Supervisor has found that I violated the Rules.

The Election Supervisor will not tolerate such misconduct.

Accordingly, the Election Supervisor has disqualified me from serving as a delegate for Local Union 682 to the IBT Convention. The Election Supervisor has also ordered me to sign and post this Notice on all union bulletin boards under the jurisdiction of Local Union 682.

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.

_________________________________________
Thomas Wright, Secretary-Treasurer Teamsters Local Union 682
Date:

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
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

Del Viehland
P.O. Box 522
Cedar Hill, MO 63016

Thomas Wright
Secretary-Treasurer, Local Union 682
5730 Elizabeth Avenue
St. Louis, MO 63110

Barbara O'Sullivan
7621 Rannells Avenue
Maplewood, MO 63143

Ed Kimbrell
2800 Massman Lane
DeSoto, MO 63020

Bill Christensen
5527 Robert Drive
High Ridge, MO 63049

Mary Ann Campbell
13859 State Road, E.
DeSoto, MO 63020
scdennis@aol.com

Jeffrey Ellison
510 Highland Avenue, #325
Milford, MI 48381
EllisonEsq@aol.com