IN RE: STEFAN OSTRACH, Protestor.
Protest Decision 2006 ESD 355
Issued: September 26, 2006
OES Case No. P 06 334-091306-HQ
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 BLET President Don Hahs endorsed the Hoffa campaign from the podium of an official BLET event, in violation of the Rules.
Election Officer representative Jeffrey Ellison investigated the protest.
Findings of Fact
The protest alleged that Hahs "endorsed candidate Hoffa and the Hoffa Slate from the podium at a recent regional convention of the BLET in Little Rock, Arkansas. President Hahs said that he supported Hoffa and urged all BLET members to support the Hoffa Slate because this was the reason the BLET had joined the Teamsters. After making the explicit endorsement from the podium, President Hahs looked at an attorney who was present and said maybe he shouldn't have said that."
W.L. Morris, a BLET member, substantiated the statements made in the protest. He stated that he attended the BLET Southwestern Convention in Little Rock beginning on August 20 and that Hahs made the remarks at issue here on August 22 before an audience of 50 to 75 persons.
Hahs told our investigator that he attended the convention in his capacity as BLET president, the highest ranking position in that organization. He addressed the assembled membership, some of whom were accompanied by their spouses, in open session on the morning of Tuesday, August 22. He estimated the gathering at some 75 persons.
Hahs stated that he spoke without notes on two subjects. First, he addressed pending collective bargaining and contract issues with employers of BLET members. The substance of those remarks does not bear on the issue presented by the protest.
Following those remarks, Hahs spoke about the recent amendment to the BLET governing rules that requires election of BLET officers by direct vote of the membership. Hahs stated that the proposal to require direct election of officers by the membership had passed. However, he expressed his dissatisfaction with the number of members who had voted on the proposal. Of approximately 37,000 ballot packages mailed to members, Hahs stated that only about 5,000 were returned. Hahs commented to the effect that, "Everybody wants to have an election, but nobody votes."
With that statement as lead-in, Hahs transitioned to the pending IBT election of International officers. According to Hahs' recollection, he said, still speaking without notes, "We've got another election coming up" for IBT International officers. He stated that, "We've got a guy from the Rail Conference, Freddy Simpson, who is running on the Hoffa slate, who deserves our support." Hahs stated further that, "When the BLE went into the IBT, one of the factors was its strong leadership." Hahs told our investigator he could not specifically recall endorsing Hoffa or the Hoffa slate by name, but he conceded that his remarks stated his support for that candidate and slate.
Hahs told our investigator that, immediately after making his statements of support for re-election of the current IBT leadership, he looked at a BLET lawyer in attendance and said, "I probably shouldn't have said that." The lawyer, George Faulkner, responded by covering his ears with his hands.
Hahs agreed that he was "overzealous" in his remarks. He explained that his intention was to express his displeasure at the low voter turnout on the democracy referendum and to spur the membership into participating in the next election.
Hahs stated that his remarks were not tape-recorded, and no record, minutes, or report of his remarks was prepared and transmitted outside the meeting room.
No other statements in support of or opposition to candidates for International office were made during the course of proceedings of the BLET convention, nor was opportunity to make such statements announced or provided.
As counsel for the BLET, Faulkner argued that the protest was untimely filed. The incident occurred August 22, but the protest was not filed until September 12. Although the protestor, Ostrach, was not a witness to the incident, Faulkner contends that the 2-day filing deadline in the Rules should not be circumvented by the device of permitting a member who cannot file timely himself to tell someone else of the incident so that they might file timely.
Investigation showed that Ostrach filed the protest within 2 working days of the date he learned of the conduct at issue here.
Analysis
We find that Hahs used his union position to endorse the Hoffa slate and that he did so during the course of a union-sponsored event that was not otherwise open to campaign activity. For these reasons, we GRANT the protest.
In reaching this conclusion, we first reject the argument that the protest was untimely filed. Article XIII, Section 2(b) requires that a protest be filed "within two (2) working days of the day when the protestor becomes aware or reasonably should have become aware of the action protested." The limitations period in the Rules measures the time for filing from the date of actual notice to the protestor or the date the protestor should have known of the incident absent willful ignorance. Counsel for the BLET does not contend that protestor Ostrach learned of the incident that is the subject of this protest more than 2 working days before the protest was filed, and we find that he did not. Ostrach is not a member of the BLET and counsel does not contend that Ostrach should reasonably have learned of the incident at an earlier date. Instead, counsel's argument appears to be that Morris, as the witness to the incident, waived his right to protest by failing to do so timely and that, once Morris' 2-day limitations period ran, the incident could not be raised in a protest when another party first learns the facts. To accept counsel's argument would require imputing Morris' knowledge of the incident to Ostrach or another responsible party in the Leedham campaign organization at the time the incident occurred. Such a finding would require proof of either an agency relationship between Morris and Ostrach or the Leedham campaign, or that Morris shared a common interest with Ostrach or the Leedham campaign in raising this as a protest. There is no such evidence. Accordingly, we find the protest timely filed.
On the merits, Hahs violated Article VII, Section 12(b) by using his position as BLET president to endorse the Hoffa candidacy and that of the Hoffa slate. Further, he violated Article VII, Section 12(c) by using union facilities, i.e., the podium at a union-funded event, to make the endorsement under circumstances where no other candidate or candidate representative had notice, express or implied, that political speech would be permitted in that forum. Cf., Leedham Slate, 2006 ESD 354 (September 21, 2006), where opposing factions attending the IBT convention repeatedly engaged in political speech on the floor of the convention.
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.
As remedy, we order Hahs to cease and desist from any further violation of the Rules. We also order that the BLET mail the notice attached to this decision to all BLET members who attended the August Little Rock convention. The purpose of the notice is strictly remedial and is to inform members of the requirements of the Rules.
In ordering this remedy, we consider and reject the argument that Hahs fully remedied the violation fully by immediately acknowledging that he should not have made the endorsement. Hahs' simple acknowledgment that he "shouldn't have said that," while candid, did not inform the assembled members of the Rules' prohibitions on endorsements by union officials in their official capacities or use of union resources to campaign.
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 355
NOTICE TO ALL BLET MEMBERS WHO ATTENDED THE BLET SOUTHWEST CONVENTION IN LITTLE ROCK, ARKANSAS ON AUGUST 22, 2006
The Rules for the 2005-2005 IBT International Union Delegate and Officer Election ("Rules") prohibits a union officer from using his office to endorse a candidate for International office. The Rules further 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 BLET President Don Hahs, addressing the BLET Southwest Convention in Little Rock, Arkansas on August 22, 2006, endorsed candidates for International office, in violation of the Rules. The Election Supervisor has ordered President Hahs to cease and desist from such violation of the Rules.
Each member of the IBT has the right to vote for the International officer candidates of their choice. The election is conducted by secret ballot.
The Election Supervisor has ordered the BLET to mail this notice to all BLET members who attended the BLET Southwest Convention in Little Rock, Arkansas on August 22, 2006.
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.
____________________________________
Richard W. Mark
Election Supervisor
Dated:
This is an official notice prepared and approved by Richard W. Mark, Election Supervisor for the International Brotherhood of Teamsters.
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
George Faulkner
Faulkner, Muskovitz & Phillips, LLP
820 West Superior Avenue, 9th floor
Cleveland, OH 44113-1800
Faulkner@fmplaw.com
Jeffrey Ellison
510 Highland Avenue, #325
Milford, MI 48381
EllisonEsq@aol.com