IN RE: STEFAN OSTRACH, Protestor.
Protest Decision 2006 ESD 348
Issued: September 24, 2006
OES Case No. P 06 324-082506-MW
Stefan Ostrach, member of Local Union 206 and treasurer of the Tom Leedham Strong Contracts, Good Pensions slate, 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 Local Union 480 had officially endorsed the Hoffa campaign by using local union resources to solicit support and funds for the campaign.
Election Officer representative Joe Childers investigated the protest.
Findings of Fact
The protestor alleged that Local Union 480, acting through its staff and officers, sponsored a campaign fundraiser for the Hoffa 2006 slate and promoted the fundraiser through an email message sent and signed by Tim McDonald, a full-time business agent and elected trustee of Local Union 480, in his capacity as an officer of the local union.
Investigation showed that McDonald sent an email message to 62 individuals, including members and stewards at Local Union 480, IBT International officers, and McDonald's personal friends. It was signed "Tim McDonald, UPS Business Representative/Trustee, tlu480@bellsouth.net, 1050 Cornelia Street, Nashville, TN 37217, tel: 615:361-4900, fax: 615-399-9922, mobile: 615-336-7700." The address and phone number were those of Local Union 480. The e-mail date-stamp showed that the message was sent on Saturday, August 12, 2006 at 11:40 p.m.
Attached to the email message was a file consisting of 2 pages titled, "Hoffa_Wood_Breakfast_Fundraiser_August_19_2006.pdf." The first page, a flyer, began, "You are cordially invited to the 2006 HOFFA-WOOD Fundraiser Breakfast. Come meet and discuss issues with Southern Region Vice President Ken Wood. Bro. Wood is the Southern Supplement Chairman for contract negotiations and he also sits on the UPS National Negotiating Committee." The balance of the flyer listed the date, time and location of the event; it also contained the IBT's horses and wheel logo and asked attendees to RSVP to McDonald at either his personal email address or his personal phone number, both of which were listed on the flyer. The second page of the attachment was a map of the location of the breakfast fundraiser. McDonald created the invitation to the fundraiser using Adobe Acrobat on his union-supplied laptop while at home taking a vacation day on Friday, August 11, 2006.
McDonald told our investigator that he made a mistake when he sent the e-mail out using his union-supplied email address. He said he was at home, late on a Saturday evening, working on the email on his union-supplied laptop computer. He intended to email the flyer and the map only to his personal email address, timkaronica@bellsouth.net, and then use the personal email address to send the flyer and map to the 62 addressees using his home computer. However, the list of addressees who received the email and attachment were grouped together as a list in the Microsoft Outlook program on McDonald's union-supplied laptop. The list was not on McDonald's home computer.
The email message McDonald sent was copied (cc'd) to McDonald's personal e-mail address but was actually sent to the 62 persons on the Outlook list. The signature, address, and phone numbers that appeared at the bottom of the email message were inserted there automatically by Outlook.
McDonald stated he compiled the list of email addresses he used to send the fundraiser invitation over the course of performing his duties as a local union business representative. The protest alleged that McDonald sent the invitation "to email addresses collected on the Local 480 website from members." Local Union 480 maintains a website at http://teamsterslocal480.org. McDonald is listed on the home page as the website's "author." The website includes a "comment page" where users may state complaints, suggestions, praise or comments; the page includes space in which the user may enter his/her name, address, telephone numbers, and email address. McDonald denied that he emailed the fundraiser invitation to any email addresses obtained from the local union website. There is no contrary evidence.
McDonald stated that, after he realized he had sent the email to all addressees from his union-supplied laptop, he recognized his error immediately. On the following Monday morning, August 14, 2006, he reported the incident to David Mottern, the local union president. McDonald told our investigator that Mottern was very upset upon hearing the news. Mottern subsequently telephoned Ken Wood, candidate for South region vice president on the Hoffa slate and the intended beneficiary of the fundraiser, and reported the incident to him. Wood verified that he learned of the incident from Mottern. Wood then contacted counsel for the Hoffa 2006 campaign to report what had occurred.
In addition to notifying Wood of the incident on August 14, local union president Mottern issued a written reprimand to McDonald the same day and placed a copy in his personnel file, viz.
Dear Brother McDonald:
On Saturday, August 12, 2006 at 10:40 PM an e-mail was sent from your computer, tlu480@bellsouth.net, and forwarded to different parties inviting them to a breakfast fundraiser for the "Hoffa-Wood Reelection Campaign." As you should have been aware this is a strict violation of Local 480's policies concerning the use of Local 480's assets (staff, computers, telephones, stationery, other office equipment, etc.) in support of any and all endeavors not associated with Local 480's mission as defined by our By-Laws and IBT Constitution. Your failure to follow these guidelines is totally unacceptable.
I am therefore issuing this letter of admonishment for your failure to use good judgment and follow the policies as prescribed above. Any cost, if any, borne by this local relevant to this issue will require you to reimburse this local in whole. In the future I expect you to follow any/all procedures concerning matters of this nature as well as prescribed diplomacy.
Any further occurrences of this nature will result in further disciplinary action.
Although the invitation had been prepared on and sent from McDonald's union-supplied laptop computer using an address list McDonald compiled through his official union activities, the officers of Local Union 480 and the Hoffa-Wood campaign did nothing to remedy the improper use of these union resources and, instead, elected to go forward with the fundraiser. The fundraiser was attended by approximately 10 to 12 persons, a disappointing turnout according to all who were interviewed. In addition to the members of Local Union 480 who attended the breakfast, Ken Wood, Brian Rothman and Clay Jeffries from the Hoffa-Wood campaign team also attended. The breakfast took place August 19, 2006 because Wood, Rothman and Jeffries were in Nashville on union business at that time. Including donations and sales of campaign paraphernalia, the fundraiser grossed $175.00. Six members made contributions ranging from $20 to $50. Five of these members were sent the emailed invitation by McDonald. The sixth learned of the fundraiser because McDonald told him.
Analysis
Article XI, Section 1(b)(3) of the Rules states as follows:
(3) No labor organization, including but not limited to the International Union, Local Unions and all other subordinate Union bodies, whether or not an employer, may contribute, or shall be permitted to contribute, directly or indirectly, anything of value, where the purpose, object or foreseeable effect of the contribution is to influence, positively or negatively, the election of a candidate, except as permitted by subparagraphs (5) and (6) below. No candidate may accept or use any such contribution. These prohibitions extend beyond strictly monetary contributions made by a labor organization and include contributions and use of the organization=s stationery, equipment, facilities and personnel.
Article XI, Section 1(b)(6) provides:
(6) No Union funds or other things of value shall be used, directly or indirectly, to
promote the candidacy of any individual. 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.
McDonald's use of his union-supplied laptop computer to prepare an invitation to a campaign fundraiser, which he sent from a union-supplied email address using email addresses he compiled in the course of his union-paid duties as a business representative, violates the quoted provisions of the Rules. This violation is a strict liability offense; accordingly, that McDonald claimed that the email was sent in error does not excuse the offense or mitigate the remedy.
McDonald stated that he recognized the impropriety of his actions immediately and advised the local union and the Hoffa-Wood campaign promptly. Local president Mottern also recognized the impropriety, as evidenced by his angry reaction to McDonald and the strong letter of admonishment he wrote. However, no remedial action was initiated by McDonald, the local union or the Hoffa-Wood campaign to address the fact that a campaign fundraiser was publicized largely through use of union assets. Instead, Wood proceeded with the event and accepted the contributions made there, registering his apparent willingness to risk that the violation would not be detected or reported.
Such behavior is contrary to the Rules. Article XI, Section 1(b)(13) makes candidates "strictly liable to insure that each contribution received is permitted under these Rules. Prohibited contributions must be returned promptly." Further, Article XI, Section 1(b)(14) declares that "[i]gnorance by a candidate, by a union and/or by an employer that union or employer funds or other resources were used to promote a candidacy shall not constitute a defense to an allegation of a violation of these Rules." Here, both the candidate and his campaign knew in advance of the fundraiser that union resources were used to publicize the fundraiser; the candidate nonetheless attended the fundraiser and the campaign accepted the contributions. These acts constitute knowing and intentional receipt of union resources for campaign purposes and will not be tolerated.
Remedy
When the Election Supervisor determines that the Rules have been violated he "may take whatever remedial action is appropriate." Rules, Article XIII, Section 4. In addition, Article XI, Section 1(d) states that "[t]he remedy that may be imposed by the Election Supervisor in resolving any protest concerning a candidate's or campaign's receipt or use of improper contributions will be influenced by the manner in which the contribution was solicited and/or accepted …"
We first address the remedy with respect to the Hoffa-Wood campaign. The fundraiser grossed $175.00 in donations and sales of campaign paraphernalia. These funds must be returned by the Hoffa-Wood campaign to the following individuals in the amounts opposite their names:
Member Contribution
Timothy McDonald $25.00
Joe Frazier 20.00
Tracy Wallace 30.00
Lendon Grisham 25.00
Len Hughes 25.00
Tony Eddie 50.00
The laptop computer McDonald used to prepare the flyer and email it to the address list was owned by Local Union 480. We assess the value of the use of that asset by determining the cost of replacing its use commercially. Desktop computer time may be rented at commercial establishments for 20¢ per minute. We conclude that the amount of time necessary to produce the fundraiser invitation, create the map, and prepare the transmittal email would reasonably amount to 1½ hours of computer time, at a resulting cost of $18. We order that the Hoffa-Wood campaign reimburse this amount to the local union.
We assess the value of the email list McDonald used as if he did not have ready access to it on his union-supplied computer. Under our Advisory on Rights of Candidates to Distribute Campaign Literature to Members Using IBT International Union and Local Union Email Lists (March 6, 2006), a candidate would have no right to obtain the email list on an individual business agent's computer because such list does not constitute an official union list that may be accessed for campaign purposes. Jensen, 2006 ESD 282 (May 30, 2006). The list on McDonald's union-supplied computer is nonetheless a union asset because McDonald compiled it while performing his duties as business agent for the local union. Therefore, he may not use the list for campaign purposes unless the union first gives written notice to all candidates that the list is available for such use. Given these circumstances, we do not assess a remedy by determining the list's commercial value; instead, we impose a remedy that is intended to deter further use of union assets that are unavailable to non-employees of the local union and for which a reasonable substitute is not commercially available. Accordingly, we order that the Hoffa-Wood campaign reimburse the local union at a rate of $2 per addressee, for a total cost for use of McDonald's email list of $124.
Finally, a candidate commits a willful violation of the Rules when he accepts contributions at a fundraising event he knew was sponsored, in whole or part, through impermissible use of union assets. To deter such conduct, we order the Hoffa-Wood campaign to pay a fine of $500 to the Office of the Election Supervisor.
All monetary reimbursements and fines we order here must be made within 5 working days of receipt of this decision. Within 3 days after making the payments required by this decision, the campaign shall provide an affidavit to the Election Supervisor verifying that all such payments have been made.
With respect to McDonald, we order that he cease and desist using union assets to assist in campaigning. Given Mottern's strong reaction to McDonald's action, which includes the threat of further disciplinary action for any future improper use of union assets, we are satisfied that no further deterrent is necessary.
Finally, we direct the local union to post the notice attached to this decision on all union bulletin boards under the jurisdiction of the local union and maintain that posting for a period of 30 consecutive days. This remedy is "to broadly inform the rank and file of the meaning, interpretation and application of the Rules" and "to deter intentional or inadvertent violations of the Rules." Richards, 00 EAM 1 (August 14, 2000) The local union shall submit an affidavit of compliance with respect to the notice posting aspect of this remedy.
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 Office of the Election Supervisor for the International Brotherhood of Teamsters, 1725 K Street, Suite 1400, N.W., Washington, D.C. 20006, 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 348
NOTICE TO ALL MEMBERS OF LOCAL UNION 480 FROM IBT ELECTION SUPERVISOR RICHARD W. MARK
The Rules for the 2005-2005 IBT International Union Delegate and Officer Election ("Rules") prohibit use of union resources to support or oppose any member's candidacy for International office.
The Election Supervisor will not permit any such violation of the Rules.
The Election Supervisor has found that Business Representative Tim McDonald used a union-supplied computer to prepare and send to a union-generated email list an invitation to a campaign fundraiser. The Election Supervisor has also found that Local Union President David Mottern was advised of this improper use of union resources immediately after it occurred and did not correct McDonald's misconduct.
The Election Supervisor has ordered McDonald and Local Union 480 to cease and desist from such violation of the Rules.
The Election Supervisor has further ordered the candidate who benefited from the fundraiser to refund all contributions received at the fundraiser, to reimburse the local union for the improper use of the union-supplied computer, to pay the local union for the union-generated email list, and to pay a fine of $500 for his violations.
The Election Supervisor has further ordered Local Union 480 to post this notice on all union bulletin boards for a period of 30 consecutive days.
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, Suite 1400, Washington, D.C. 20006, telephone: 888-IBT-2006, fax: 202-454-1501, email: electionsupervisor@ibtvote.org.
Dated: September 21, 2006
This is an official notice prepared and approved by Richard W. Mark, Election Supervisor for the International Brotherhood of Teamsters. It must remain posted for 30 consecutive days and must not be defaced or covered up.
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
Timothy McDonald
10101 Roanoke Drive
Murfreesboro, TN 37129
timkaronica@bellsouth.net
David R. Mottern, President
IBT Local Union 480
P.O. Box 100230
Nashville, TN 37224
Kenneth W. Wood, President
IBT Local Union 79
5818 E. Martin Luther King Blvd.
Tampa, FL 33619
Joe F. Childers
201 W. Main Street, Suite 310
Lexington, KY 40507
childerslaw@yahoo.com
Bill Broberg
1108 Fincastle Road
Lexington, KY 40502
wcbroberg@aol.com
Steven Newmark
Office of the Election Supervisor
International Brotherhood of Teamsters
1725 K Street, NW, Suite 1400
Washington, DC 20006
snewmark@ibtvote.org
Jeffrey Ellison
510 Highland Avenue, #325
Milford, MI 48381
EllisonEsq@aol.com