IN RE: DAVID MACELLARI, Protestor.
Protest Decision 2006 ESD 353
Issued: September 24, 2006
OES Case No. P-06-326-082806-FW
David Macellari, a member of Local Union 174, filed a pre-election protest on behalf of Bill Byington, another member of Local Union 174, 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 Pat Frey and Mike Wain campaigned during work hours in violation of the Rules. The protest further alleged that the local union newspaper was used to campaign, also in violation of the Rules. Finally, the protest alleged that Dan Scott and Tom Herriman traveled to the IBT convention on local union funds for the purpose of securing Scott's nomination for International vice-president at large on the Leedham slate; the use of union funds for this purpose is alleged to violate the Rules.
Election Supervisor representative Christine Mrak investigated this protest.
Findings of Fact and Analysis
1. Alleged campaigning during time paid for by the local union.
Byington stated that on August 14, 2006, he observed Local Union 174 business agent Pat Frey, local union president Dianne Bolton, and local union organizer Mike Wain distributing Dan Scott Membership Power slate flyers and copies of Convoy Dispatch to employees as they came to work at the UPS center located at 550 Andover Park West. Byington claimed that Frey then stopped campaigning and entered the UPS building to conduct union business, but that upon exiting the building again, he resumed campaigning in the parking lot. Byington complained that Frey was representing Local Union 174 at the same time that he was campaigning for the Dan Scott Membership Power Slate.
Two witnesses Byington identified, Shawn Mason and Steve Marlow, confirmed that they received flyers from Frey in the outside parking lot. Shop steward Dan Holdsworth stated that Frey came inside the UPS facility to discuss union business with him and that Frey did not do any campaigning in conjunction with this discussion.
Frey told our investigator he used his break time to campaign on August 14. Investigation showed that Local Union 174 business agents have no set schedules. Frey's schedule for August 14 demonstrated that he commenced work at 6 a.m. and finished the day at 6 p.m.. No witness stated that Frey campaigned for more than 20 minutes that day.
Although Byington was a witness to the Frey's activities on August 14, 2006, he did not file the protest in this matter until August 26.
Article VII, Section 12(a) of the Rules declares:
No candidate or member may campaign during his/her working hours. Campaigning incidental to work is not, however, violative of this section. Further, campaigning during paid vacation, paid lunch hours or breaks, or similar time off is also not violative of this section.
Further, Article XI, Section 1(b)(7) states:
No member may campaign for him/herself or for any other candidate during time that is paid for by the Union or by any employer. However, campaigning incidental to work or regular Union business or during paid vacation, paid lunch hours or breaks, or similar time off is not violative of the campaign contribution rules.
Assuming without deciding that distributing Convoy Dispatch and flyers for the Dan Scott Membership Power slate constitutes campaign activity subject to regulation under the Rules, we find no Rules violation. Investigation showed that Frey distributed the materials while on break time, as the Rules permit. We further hold that this aspect of Byington's protest is untimely filed, pursuant to Article XIII, Section 2(b).
Accordingly, we DENY this aspect of the protest.
2. Alleged use of local union newspaper to campaign.
Byington also protested Local Union 174's publication entitled Frontline Special Issue Convention Report. Byington claimed that Dan Scott, candidate for election as International vice president at-large and for re-election as secretary-treasurer of Local Union 174, used the publication to campaign for both positions. Further, Byington complained that Local Union 174 member Tom Herriman used the publication to write an article that openly campaigned for the Dan Scott Membership Power slate. Byington also alleged that Scott and Herriman did not obtain permission from the Election Supervisor prior to use the publication for campaign purposes.
Article VII, Section 8(e) of the Rules requires that "every Union-financed publication to be mailed or otherwise distributed to the membership between August 2006 and November 2006 … be submitted to the Election Supervisor by the publishing body for review and approval prior to publication." We issued a Publication Review Advisory on July 14, 2006, notifying the IBT and all subordinate union bodies of their obligations to secure OES approval before distributing union-financed publications to their members. Local Union 174 submitted the publication at issue here for review as required by the rule and the advisory. We approved it on August 7, 2006.
The advisory states that "pre-publication review does not preclude any post-publication protest under Article XIII of the Rules."
Investigation showed that the local union's mailhouse mailed the newsletter to its members on August 10, 2006. Byington's protest was dated August 26, 2006. Accordingly, this aspect of the protest too is untimely filed, under Article XIII, Section 2(b) of the Rules.
Were we to consider this aspect of Byington's protest on its merits, we would deny it for several reasons. First, although Scott apparently is a candidate for reelection as secretary-treasurer of Local Union 174, the issue of Frontline contains no campaigning for or reference to such candidacy and, if it did, we have no authority under the Rules to regulate campaign activity for local union office. Second, Scott is a candidate for International vice president at large on the Leedham slate. Herriman's Convention Journal article identified Scott as 1 of 15 candidates nominated for the 7 open positions of vice president at large. Similarly, an elected delegate from Local Union 174 stated on another page of Frontline that Scott had been nominated for that position. Neither reference campaigned for or against Scott's candidacy. Finally, Frontline's article by secretary-treasurer Dan Scott did not constitute campaigning in support of or opposition to any candidate for International office, as the protest contends.
Article VII, Section 8(a) of the Rules states that a union-financed publication or communication may not be "used to support or attack any candidate or the candidacy of any person" and provides criteria for determining whether the communication is campaign material. The "tone, timing and content" test has been established in order to determine when publications constitute campaigning. Martin, P10 (August 17, 1995), aff'd, 95 EAM 18 (October 2, 1995); Jacob, P71 (September 7, 1995), aff'd, 95 EAM 19 (October 3, 1995); Ruscigno, P67 (July 19, 1995). The Election Administrator must also review "the specific context in which the communication takes place." Jacob, supra.
Election Appeals Master Conboy explained in Martin, 95 EAM 18 (October 2, 1995):
An incumbent has "a right and responsibility," as a union officer, to "advise and report to the membership on issues of general concern" to the membership, and is "entitled to use union publications to express [his] views." [Citations omitted] …
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With regard to the tone and content prongs of the inquiry, courts have held that newsworthy articles or articles which contain purely factual information are generally permissible. [Citations omitted] …
Moreover, a union-funded newspaper does not violate the Rules by publishing articles on newsworthy issues of interest and legitimate concern to membership. Sullivan, P66 (July 28, 1995); Volpe, P828, aff'd, 96 EAM 218. Further, a published report on the activity of incumbent officers does not violate the Rules where it "is addressed to the regular functions, policies and activities of such incumbents as officers involved in matters of interest to the membership, and not as candidates for re-election." Jacob, P68 (July 26, 1995).
Scott's report in Frontline recounted his activities at the IBT convention. It also expressed his view that opportunities were missed there to improve the union. On this latter point, Scott's report stated the following:
One of the important tasks at the Convention is to review and amend the Constitution. The ability to amend our rules (the Constitution) is a valuable opportunity that comes only once every five years. Frankly, I was disappointed by the lack of meaningful progress in amending our Constitution. Unfortunately, this seemed to be replaced by the passing of "feel good" resolutions. While a resolution like organizing at DHL or pursuing a National Master Agreement in sanitation sounds awesome, they amount to nothing more than lip service if significant commitments in staffing, resources and education are not made. The press releases from the Convention were dominated by the IBT vowing to do this and pledging to do that. Many of us believe in the saying that actions speak louder than words and I believe that actions behind these resolutions were non-existent.
Before I speak on the amendments, I would like to comment on the "democratic" process at the Convention. As you can tell from the nomination vote totals (over 90% Hoffa), the votes of the delegates don't accurately reflect the sentiment of the membership. Unfortunately, this is also true about votes taken by the delegates on amendments. Unbelievably, each delegate section had an appointed floor "whip," who had the task of "guiding" the delegates during the Convention. These floor whips would communicate to the delegates through hand signals with thumbs up to vote yes, thumbs down to vote no. This led to a "pack mentality" with the majority of delegates voting along party lines rather than thoughtfully considering each amendment and its merits.
Some significant amendments were proposed during the week. These amendments included accountability for Pension Trustees, the right for members to vote on dues increases, the elimination of multiple salaries for union officials and local union autonomy language that would have included rewards for local unions that were aggressively organizing. Unfortunately, these amendments met the "thumbs down" signal from the appointed floor whips and were soundly defeated in a magnitude that defied the will of the membership. These were the types of real action that could have improved the chances of success on the "feel good" resolutions. We can't just say let's organize (resolution), we must devote resources to organizing by freeing up monies that currently go into union officials pockets and by rewarding aggressive local unions. Our great union stands at a crossroads and real actions must be taken to aggressively counter the attacks by Corporate America. It is my belief that the IBT and its delegates missed many golden opportunities at the 2006 IBT Convention.
The matters discussed in this report are "issues of general concern" to the membership. Scott had a "right and responsibility" as a union officer to comment on them, and he was permitted to use the union publication to report factually on the processes of the convention and to express his views about the conduct of union business there. His comments did not refer to the International officer election or express support for or opposition to any candidate in that election.
3. Alleged use of local union funds to pay travel expenses of Scott and Herriman to attend IBT convention.
Finally, Byington alleged that Scott and Herriman traveled to Las Vegas, Nevada, to attend the IBT convention at the expense of Local Union 174. Neither Scott nor Herriman were delegates or alternate delegates. Byington contended that use of local union funds to pay Scott's travel expense constituted support for his candidacy for International vice president at large on the Leedham slate.
Although Scott accepted nomination for International office at the convention, investigation showed that he engaged in other activities as principal officer of his local union. Thus, on the first day of the convention, he attended a meeting to coordinate organizing and bargaining strategy for employers of school bus drivers. Local Union 174 is presently negotiating a first contract for a group of school bus drivers employed by Laidlaw, a national employer that contracts with local school districts to provide transportation services. Further, Scott met with leaders of another local union engaged in a prolonged strike; Local Union 174 has supported that local union financially in its job action.
Herriman, the editor of Frontline, was granted press credentials to cover the convention.
Both Scott and Herriman were classified as guests of Local Union 174 at the convention. Our Advisory Regarding Payment of Expenses for Convention Delegates and Alternate Delegates to the 27th International Convention of the International Brotherhood of Teamsters (March 24, 2006) provided the following:
If a Local Union pays Convention expenses for a guest … whose attendance is reasonably related to the business of the Convention, such as retiree representatives or union members with designated responsibilities in connection with the proceedings of the Convention or with official union meetings held attendant to the Convention, such payment would not constitute misuse of union funds.
Given the responsibilities Scott and Herriman performed at the convention site, payment of their travel expenses with local union funds did not constitute misuse of those funds.
Further, we note that Article III, Section 3(c) of the Rules declares that "a local union may not send to the Convention or pay the expenses of any member or guest unless it pays the expenses of all its alternate delegates, regardless of the terms of the Local Union Plan." Local Union 174 paid the expenses of all its delegates and alternate delegates and therefore was permitted to pay the expenses of guests Scott and Herriman.
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
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 353
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
David Macellari
2118 North 146th St.
Shoreline, WA 98133
copperdoor@msn.com
Bill Byington
17837 1st Avenue South, #14
Normandy Park, WA 98168
Dan Scott, Secretary-Treasurer
IBT Local Union 174
14675 Interurban Avenue S. #303
Tukwila, WA 98168-4652
Christine Mrak
2357 Hobart Avenue, SW
Seattle, WA 98116
cmm@wmblaw.net
Jeffrey Ellison
510 Highland Avenue, #325
Milford, MI 48381
EllisonEsq@aol.com