IN RE: EARL WALKER, Protestor.
Protest Decision 2006 ESD 272
Issued: May 24, 2006
OES Case No. P-06-244-032806-NE
Earl Walker, member and president of Local Union 614 and an unsuccessful candidate for delegate in the local union delegate and alternate delegate election, filed a post election protest pursuant to Article XIII, Section 3(a)(1) of the Rules for the 2005 2006 IBT International Union Delegate and Officer Election ("Rules"). The protest alleged that the delegate and alternate delegate election victory by the Reduce the Dues Restore the Pension UTAH slate ("UTAH slate") resulted from interference in the election by a former member and principal officer of the local union who has been permanently barred from the IBT by the Independent Review Board ("IRB").
Election Supervisor representatives William C. Broberg and Joe Childers investigated this protest.
Findings of Fact
All candidates for delegate and alternate delegate on the UTAH slate were elected. Walker's protest alleged that Mike Bane, former member and principal officer of Local Union 614 and International representative, "created, financed and managed" the UTAH slate, and that such conduct by Bane violated the Rules. Walker further alleged that Bane is currently the subject of numerous investigations by the IRB over his ongoing association with IBT members in violation of the Consent Decree.
Investigation showed that on July 17, 2001, the IRB permanently barred Michael Bane from the IBT. The charges against him included giving the IRB "intentionally misleading testimony concerning knowledge and relationship with" members and associates of the "Detroit La Cosa Nostra." United States v. IBT, 88 Civ. 4486 (Application 98 of the Independent Review Board, aff'd Memorandum and Order, S.D.N.Y., April 18, 2002). The penalty the IRB imposed was as follows: "Bane has been permanently barred from membership in the IBT and may not hereafter obtain employment, consulting or other work with the IBT or any IBT-affiliated entity." Id. The U.S. District Court granted the IRB's application for permanent injunction and enforced the IRB's penalty. Id. The U.S. Court of Appeals for the Second Circuit affirmed the district court's decision. United States v. IBT (Michael Bane), 59 Fed. Appx. 424, 173 LRRM (BNA) 2128 (March 13, 2003).
In support of the protest, Walker submitted the affidavit of Jeffrey Rennie, an unsuccessful independent candidate for alternate delegate in the local union election. Rennie's affidavit stated that approximately one month before the tally of ballots in the election, Rennie spoke with Mike Deal, a winning candidate for delegate on the UTAH slate. The affidavit stated that Rennie has known Deal for more than 24 years through work, that Deal told him that he would never have run for delegate "had Mike Bane not asked him to," and that "I would never have run except as a favor to Mike Bane."
Walker stated that he had no other evidence of Mike Bane's alleged role in the campaign of the UTAH slate other than Rennie's affidavit.
Rennie told our investigator that Deal told him he ran as a favor to Mike Bane. However, Rennie denied that Deal told him Bane had asked him to run. He stated that at the tally of ballots, he related the conversation with Deal to Walker, not recognizing its apparent significance to Walker. Walker subsequently had the local union's TITAN operator bring an affidavit to Rennie's workplace, which Rennie signed. Rennie said he did not believe he misunderstood what Deal said, but conceded that he possibly did.
Deal denied that he has spoken with Bane since the permanent ban was imposed in 2001. However, he admitted that he told Rennie, "[i]f the IRB and that chicken-shit Hoffa hadn't done us the gigantic favor of expelling Mike Bane from the union, we would not be having an election because no one would run against [Bane]." Deal stated that Joey Bane, Mike Bane's brother, supported the UTAH slate and helped slate members campaign. Deal also stated that Joey Bane recruited Deal to run for delegate. Joey Bane is a member of Local Union 614 and a former local union business agent. Deal stated that he was an alternate delegate on Mike Bane's slate in 1990 and wishes he could still be friends with Bane; however, he stated that he knows the rules and is not permitted to associate with Mike Bane.
Our investigators spoke with the other members of the UTAH slate, including delegate candidates Billee Jean Hawkins and Robert Tibbals, and alternate delegate candidates Bryan O'Nail and Michael Thomas. Each denied that Mike Bane played any role in the campaign of the UTAH slate and further denied that he helped finance the slate. Each stated that the members of the slate chipped in and financed the campaign themselves. In addition, each of these members of the slate denied any association with Mike Bane.
Our investigator also interviewed Jeff Duncan, alternate delegate candidate on the UTAH slate. Duncan too denied that Mike Bane had any role in the campaign of the UTAH slate, and did not provide any financing for the campaign. Duncan stated that he "do[es] not believe" that he has had any conversations with Mike Bane about the campaign, but admitted that he has had conversations with Bane in the past six months. He stated that he plows Bane's driveway in winter and cuts his grass in summer. Duncan stated that, at some point during the pre-election period, Bane asked him how the campaign was going, but he denied that Bane encouraged him to run. He stated that he was planning on running "anyway."
Review of telephone records subpoenaed by the Independent Review Board and supplied to our investigators demonstrates that calls were placed from the telephone number registered to the Mike Bane residence to the telephone number registered to Jeff Duncan and vice versa.
Analysis
Mike Bane was "barred from membership in the IBT" by order of the IRB and injunction of the U.S. District Court. The Consent Order, at Paragraph E.10., enjoins "any … officers, representatives, members and employees of the IBT … from knowingly associating with … any person otherwise enjoined from participating in union affairs."
The protest alleged that Mike Bane "created, financed and managed" the UTAH slate. We found no evidence to substantiate this allegation. With respect to creation of the slate, the lone piece of evidence on this point is Rennie's statement to our investigator that Deal told him he "ran as a favor to Mike Bane." Given Deal's firm denial of any contact with Mike Bane, we do not ascribe to Mike Bane any improper role in the creation of the UTAH slate.
No evidence was presented that Mike Bane had any role in financing the UTAH slate. To the contrary, the only evidence of slate financing was that the candidates financed the campaign themselves.
Finally, our investigation found no evidence that Mike Bane managed the UTAH slate. Although Duncan told our investigator that Bane asked him how the election was going, such a question, without more, does not support an inference that Bane managed the campaign for the UTAH slate.
Accordingly, the facts presented do not substantiate the protest's principal allegation that Mike Bane created, financed and managed the UTAH slate. In particular, we find no evidence that Mike Bane took any role in the local union delegate and alternate delegate election. For this reason, we DENY this aspect of the protest.
We note that certain evidence, in particular Duncan's admitted contacts with Mike Bane, suggests that Duncan may have violated the Consent Order's injunction not to "knowingly associate" with a "person enjoined from participating in union affairs." We make no finding in this regard, as the subject is beyond our authority under the Rules.
The election process we administer "is fundamentally distinct from the disciplinary procedures administered by the IRB." United States v. IBT, 988 F.Supp. 759, 765 (S.D.N.Y. 1997). Our role is to "ensure fair, honest, open and informed elections." Article I. Where we find, as we have here, that certain alleged misconduct did not implicate that mandate or otherwise impair the right of the membership to select their representatives to the IBT convention democratically, we have fulfilled our role.
In United States v. IBT, 39 F. Supp. 2d 397, 400 (S.D.N.Y. 1999), the Leedham slate sought to bar certification of election under the Rules of certain candidates on the Hoffa Unity slate who were the subject of pending proceedings before the IRB. The Court rejected this request, instructing as follows:
The Election Officer's function under the Consent Decree is to ensure a fair, honest and open election process, not to sit in judgment of a candidate's character or fitness for office based upon alleged misconduct that he determined did not affect the integrity of the election. The Consent Decree's disciplinary process is the appropriate avenue for sanctioning or removing officers who engage in such misconduct.
Also rejected was the Leedham slate's parallel argument that these candidates should be barred from office under 29 U.S.C. 504, which prohibits persons convicted of certain crimes from holding office in labor organizations. The Court wrote:
[A] candidate is ineligible under the LMRDA only if he or she has been convicted of a crime, not if he or she has been charged or indicted, or if allegations against him or her are still under investigation. Likewise, while union discipline may affect an individual's membership rights, including his or her eligibility to hold office under the LMRDA, that the union has filed charges against an individual or that an individual's conduct is under investigation does not affect that person's rights as a member. Consequently, a candidate that has only been charged with disciplinary violations that have not yet been adjudicated and resolved is not considered ineligible under the LMRDA.
Here, none of the members of the Hoffa Slate have been convicted of an enumerated crime under the LMRDA, nor have any of the allegations and charges pending against members of the Hoffa Slate been adjudicated and resolved. Therefore, this Court will not disturb the Election Officer's and the Election Appeals Master's conclusion that certification need not be delayed pending the outcome of the IRB proceedings regarding charges against members of the Hoffa Slate and the resolution of allegations of misconduct.
Id., pp. 400-401. See also Chilcoat, E35 (January 26, 1996).
No union misconduct has been adjudicated against Duncan or any other successful candidate in Local Union 614's delegate and alternate delegate election. Accordingly, we DENY the protest in all respects.
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. 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 272
1 We assign no weight to the portion of Rennie's affidavit that Rennie recanted when interviewed by our investigator. Accordingly, we do not rely on the averment in Rennie's affidavit that Bane told Rennie he would not have run for delegate "had Mike Bane not asked him to."
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
Stefan 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
Mike Deal
2072 Eberly Road
Flint, MI 48352
Jeff Duncan
1583 Giddings Road
Pontiac, MI 48348
Joe Childers
201 West Short Street, Suite 310
Lexington, KY 40507
childerslaw@yahoo.com
William C. Broberg
1108 Fincastle Road
Lexington, KY 40502
wcbroberg@aol.com
Jeffrey Ellison
510 Highland Avenue, #325
Milford, MI 48381
EllisonEsq@aol.com