IN RE: LEEDHAM SLATE, Protestor.
Protest Decision 2006 ESD 301
Issued: July 5, 2006
OES Case Nos. P-06-280-050906-FW & P-06-286-051806-MW
The Tom Leedham Strong Contracts Good Pensions slate filed 2 pre-election protests pursuant to Article XIII, Section 2(b) of the Rules for the 2005-2006 IBT International Union Delegate and Officer Election ("Rules"). Both protests alleged that the Hoffa campaign used Teamster-owned facilities for campaign events when the Leedham campaign was not provided notice of the availability of such assistance. The protest docketed as Case No. P-06-280-050906-FW also alleged that Local Union 305 and Joint Council 37 posted Hoffa campaign stickers in their offices.
Election Supervisor representatives Christine Mrak and Mary Campbell investigated these protests.
Findings of Fact and Analysis
1. Allegation that the Hoffa campaign was permitted use of Teamsters facilities before the Leedham campaign was notified of access rights.
According to the protests, a campaign fundraiser for Hoffa slate member Gordon Sweeton was held at Local Union 600's hall in Maryland Heights, Missouri on April 28, 2006; the local union did not charge for use of the hall. The Hoffa campaign rented Joint Council 37 facilities in Portland, Oregon to conduct a fundraiser on May 5, 2006. It rented Joint Council 28 facilities in Seattle, Washington for a fundraiser the next day, May 6. The protests alleged that the Leedham campaign was not provided advance written notice that these facilities were available for campaign use before the dates they were used for the Hoffa slate's campaign events. The protests further asserted that the Hoffa campaign's use of union facilities under such circumstances created the impression of union endorsement of the Hoffa campaign.
With respect to the protest regarding use of Local Union 600's hall, local union president Dan McKay acknowledged that a campaign fundraiser for Gordon Sweeton was held at the hall on April 28. McKay stated that the hall was reserved and used in accordance with the local union's policy that permits any member of the local union to reserve and use the hall without charge. The policy has been in effect since the property was purchased in 2004. Food and beer provided at the event were paid for by McKay and brought into the hall on the date of the fundraiser. McKay also paid the cost of printing flyers advertising the event.
According to McKay, any member wishing to have an event at the hall for the Leedham slate would also be permitted to do so without charge, in accordance with local union policy. As of May 22, only one date was taken on the calendar for hall reservations for the remainder of the year. No member has sought to reserve the hall for a Leedham slate campaign event.
Investigation showed that the Portland Teamsters complex is owned and made available for rental by Union Plaza Inc., a building association comprised of local unions. Toni Schnoor, an office clerical employee, handles rental requests for the facility and stated that the facility is available for rental generally. She stated that Tony Andrews, president of the joint council, rented the hall for the Hoffa campaign with a personal check for $150. Schnoor stated that the rate charged Andrews was the one-day rental rate charged to Teamsters employees. Tom Leedham, secretary-treasurer of Local Union 206, is a member of the board of Union Plaza, Inc. However, board members are not routinely advised that union facilities have been rented, and Schnoor stated that neither Leedham nor the Leedham campaign was advised of the rental to the Hoffa campaign.
Investigation further showed that the Teamsters complex in Tukwila, Washington is owned by the Teamsters Building Association, which is comprised of Local Unions 117, 174 and 763. The complex houses the offices of these local unions and Joint Council 28; the unions had recently moved to this complex from their former offices in Seattle. The Seattle offices had routinely been rented; however, prior to the Hoffa campaign's request, the board of the new facility had declined to rent the Tukwila facility and, because no rentals had been permitted, had not established a rate schedule for renting the hall. Earlier this year, the board of the Teamsters Building Association met to discuss the Hoffa campaign's request to rent its facilities for a March 11, 2006 campaign event. The board decided to make the facility available to the Hoffa campaign and to any other candidate who wanted it. The board established a rental rate for non-Teamsters and charged the Hoffa campaign that rate. The Hoffa campaign rented the main and small auditoriums for a full day on March 11, 2006 for $925 and the small auditorium for half a day on May 6, 2006 for $325. No written notice was provided to the Leedham campaign.
With respect to the Portland and Tukwila sites, the Hoffa campaign contended that "these sites are commonly and publicly known to be available to any Teamster, and even non-members." The campaign further asserted that Dan Scott, a candidate for International office on the Leedham slate, had two representatives on the Association Board in Tukwila and that the Leedham campaign had constructive notice of the availability of the facility through these representatives. In addition, the Hoffa campaign claimed that Tom Leedham is a member of the building committee for the Portland Teamsters complex.
Article XI Section 1(b)(6) of the Rules provides in relevant part that "Union funds, facilities, equipment, stationery, personnel, etc., may not be used to assist in campaigns unless the Union is compensated at fair market value for such assistance, and unless all candidates are provided with equal access to such assistance and are advised in advance, in writing, of the availability of such assistance." The Rules allow use of union resources to support a campaign only in the narrow circumstance where the union receives compensation at fair market value and notice of the availability of such assistance is given on a non-discriminatory basis. Where the union fails to comply with the strict requirements of the exception, the consequent use of that assistance becomes improper use of the resource, improper contribution to a candidate by the union, improper receipt of the contribution by the candidate, and an unlawful endorsement of the candidate by the union. Ignorance by the candidate that the union has failed to comply with the Rules is no defense to improper receipt of the contribution. Gomez, 2001 EAD 395 (June 26, 2001).
However, Article VII, Section 12(d) of the Rules provides:
No restrictions shall be placed upon candidates' or members' preexisting rights to use employer or Union bulletin boards for campaign publicity. Similarly, no restrictions shall be placed upon candidates' or members' preexisting rights to solicit solicit support, distribute leaflets or literature, conduct campaign rallies, hold fundraising events or engage in similar activities on employer or Union premises. Such facilities and opportunities shall be made available to all candidates and members on a non-discriminatory basis.
Whether a right exists to campaign inside a union hall depends on past practice. Thornsberry, 2000 EAD 48 (November 17, 2000), aff'd as modified, 00 EAM 12 (December 12, 2000) (soliciting signatures on accreditation petition inside union hall prohibited where no past practice of engaging in campaigning there); Fiori, P618 (March 18, 1996) (union officer violated rule by placing posters for his slate in his office at union hall); Stefanski, P505 (March 6, 1996) (member violated rule by attempting to campaign in union hall where past practice prohibited same).
The rule with respect to campaign activity inside a union hall is in the same paragraph as and uses language parallel to that concerning campaign activity on bulletin boards. Accordingly, precedent with respect to bulletin boards is instructive here.
The right to post campaign literature on union bulletin boards depends upon past practice. Rodriguez, P348 (February 1, 1996); Blake, P953 (October 30, 1991); Meyer, P130 (October 12, 1995). Where there is no past practice, there is not right to post campaign literature on a bulletin boar. Lambert, P359 (February 26, 1996). Where past practice establishes that a bulletin board is used for general purposes, however, campaign literature may be posted there because the bulletin board may be used for any purpose, including a campaign purpose.
We construe the rule with respect to pre-existing rights to campaign inside union halls in the same manner as the rule concerning bulletin boards. Where a pre-existing right exists to use the hall for a general purpose (e.g., weddings, receptions, and the like), the hall may also be used for a campaign event, and the local union has no obligation to advise candidates that such a pre-existing right exists.
With respect to the Sweeton fundraiser at Local Union 600's hall, we find that a pre-existing right existed to use the local union hall for general purposes, and that McKay followed the established policy regarding use of the hall by members. Because members had the pre-existing right to use the hall for any purpose, McKay had the right to use it for a campaign purpose, and the local union had no obligation to notify candidates of their pre-existing rights to campaign inside the union hall. Accordingly, we DENY the protest with respect to Local Union 600.
For the same reason, we DENY the protest with respect to the Portland Teamsters facility. By history, members were permitted to use the facility for any purpose; accordingly, Andrews had the pre-existing right to use it for a campaign purpose.
We reach the opposite result for the Tukwila facility. There, the facility had not been made available for any purpose other than official union business. Accordingly, no pre-existing right had been established to use the facility for a campaign purpose under Article VII, Section 12(d). While the Seattle facility the unions previously occupied had been made available, the unions had not carried that policy to the new Tukwila location.
Given the absence of a pre-existing right to use the Tukwila facility, the only basis under the Rules for permitting use of the location for campaigning was to give advance, written notice to all candidates that the facility was available for use. The association of unions did not do so, and the Rules therefore were violated.
The failure by the association to give advance, written notice was not the result, we find, of improper motive by the association. Instead, we find the association acted in good faith and in an effort to accommodate the request of the Hoffa campaign. We find that the circumstances the Hoffa campaign created denied the association the opportunity to decide whether it would make its facility available for rental in a free atmosphere; at the time the Hoffa campaign requested use of the facility, the campaign had already publicized that the event would occur at the union facility. These circumstances left the association with the untenable choice either to grant the request, which it did, or deny the request and subject itself to scrutiny and perhaps criticism on political grounds.
For these reasons, we find that the Hoffa campaign not only accepted improper union assistance but created the circumstance that led to it. Accordingly, we GRANT this portion of the protest concerning the Tukwila facility.
2. Allegation that Hoffa campaign stickers and placards were posted in union facilities.
The protest alleged that Local Union 305 allowed a bright orange Hoffa bumper sticker to be displayed on the front of an employee's desk, which could be viewed by anyone standing at the front counter or entering the building shared by Local Unions 305 and 81 and Joint Council 37. The protest alleged that the Hoffa sticker created the impression of union endorsement of Hoffa. The protestor personally observed the Hoffa bumper sticker affixed to the front of a clerical's desk at about eye level facing the front counter inside Local Union 305's offices. The sticker was posted prior to the date the protest was filed on May 9 and was still there when the protestor visited the facility again on May 17.
The protest further alleged that Joint Council 37 allowed bright orange Hoffa bumper or pole stickers to be displayed in its windows facing the parking lot that serves the building housing the union offices. Joint Council 37 representative Lynn Lehrbach and organizer Dave Tully occupy adjacent offices with windows on the north side facing the parking lot. Both posted orange Hoffa signs in their windows facing the parking lot used by anyone accessing the building. The stickers were posted on the day of the Hoffa fundraiser, May 5. Upon receipt of the protest, the Hoffa campaign asked to have the stickers removed.
The Hoffa campaign denied advising anyone to post bumper stickers in the windows of Teamsters buildings.
The Rules prohibit posting of campaign stickers on union property. Article VII, Section 12(c) bars use of "Union ... facilities ... to assist in campaigning ..." Further, display of the stickers on local property violates Article XI, Section 1(b)(3), which prohibits a candidate from receiving campaign assistance from a union.
Accordingly, we GRANT 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 the Hoffa campaign to cease and desist from accepting improper union contributions. Specifically, we direct the Hoffa campaign to insure that its supporters do not use union facilities to post campaign material in violation of the Rules.
We further direct the Hoffa campaign to insure that it does not accept union assistance in campaigning unless the union has given written notice in advance to all candidates of the availability of such assistance.
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 301
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
Tom Leedham, Secretary-Treasurer
IBT Local Union 206
1860 NE 162nd Avenue
Portland, OR 97230
Tony Andrews, Secretary-Treasurer
Local Union 305 and Joint Council 37
1870 NE 162nd Avenue
Portland, OR 97230
Daniel McKay, President
IBT Local Union 600
161 Weldon Parkway
Maryland Heights, MO 63043
Mary Ann Campbell
13859 State Road, E.
DeSoto, MO 63020
scdennis@aol.com
Christine M. Mrak, Esq.
2357 Hobart Avenue, SW
Seattle, WA 98116
cmm@wmblaw.net
Jeffrey Ellison
510 Highland Avenue, #325
Milford, MI 48381
EllisonEsq@aol.com