IN RE: JOHN MURPHY, Protestor.
Protest Decision 2006 ESD 369
Issued: October 17, 2006
OES Case No. P-06-345-101006-HQ
John Murphy, member and principal officer of Local Union 82 and candidate for IBT Eastern Region vice president, 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 Kevin McNiff, candidate for IBT at-large vice president on the Leedham slate, operated a phone bank without paying for or reporting it on his CCER, in violation of the Rules.
Election Supervisor representative Steven R. Newmark investigated this protest.
Findings of Fact
Murphy alleged that Kevin McNiff operated a phone bank out of the Boston AFL-CIO without reporting the donation from the AFL-CIO. The protestor also suggested that McNiff paid for the employees and supplies associated with the phone bank but failed to report the expenditure.
Investigation found that McNiff did not conduct any phone banking at the AFL-CIO; investigation revealed that none of the AFL-CIO union halls in Boston were used for phone banking in any capacity for the IBT International Officer election. The only evidence that the protestor presented was a print-out from an internet chat-room announcing that a phone bank for McNiff would occur at the AFL-CIO at a future date. The phone banking did not occur at the AFL-CIO.
Protestor further alleges that McNiff paid employees and supplies for a phone banking and failed to report this on his Campaign Contribution and Expenditure Report ("CCER"). First, the phone banking occurred during the 8th CCER reporting period; CCER reports for that period were not due until October 15, 2006 so there was no failure to report as the protestor asserted. Further, investigation showed that those who did phone banking for McNiff's campaign were IBT members who received no compensation for their services but instead volunteered their time. Investigation also showed that these individuals used their personal cellular phones on Saturday, October 7, 2006 to make campaign calls and that their cell phone plans provided free calling on weekends.
Analysis
Article XI, Section 1(b)(3) states:
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.
The evidence showed that McNiff did not hold a phone banking session at an AFL-CIO hall in Boston. Accordingly, we reject the protestor's claim that McNiff received an impermissible contribution from a labor organization.
With respect to the protestor's claim concerning compensation for McNiff's phone-bankers, Article XI, Section 1(b)(10) states:
Nothing herein shall prohibit the donation of services by an individual, who is not an employer, to a candidate rendered on the individual's personal free time without compensation in any form by an employer or labor organization and without accompanying contributions of supplies or of services of others who are compensated by an employer or labor organization for such services.
The evidence showed that those who phone-banked for McNiff's campaign were IBT members who volunteered their time and incurred no out-of-pocket expense.
Accordingly, we DENY 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 369
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
John Murphy
20 Piedmont Street
Arlington, MA 02476
Kevin McNiff
16 Amherst Road
Braintree, MA 02184
Steven R. Newmark
Office of the Election Supervisor
1725 K Street, NW, Suite 1400
Washington, DC 20006
snewmark@ibtvote.org
Jeffrey Ellison
510 Highland Avenue, #325
Milford, MI 48381
EllisonEsq@aol.com