IN RE: TOM LEEDHAM SLATE, Protestor.
Protest Decision 2006 ESD 379
Issued: October 26, 2006
OES Case No. P-06-350-101206HQ
(See also Election Appeals Master decision 06 EAM 76)
Stefan Ostrach, a member of Local Union 206, filed a pre-election protest on behalf of the Tom Leedham Strong Contracts Good Pensions slate 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 Unions 81 and 305 did not have Leedham campaign flyers on their literature table, in violation of the Rules.
Election Supervisor representative Steven Newmark investigated this protest.
Findings of Fact
The protestor alleged that Joint Council 37 and Local Unions 81 and 305 did not place Leedham campaign literature on the literature table of the union hall shared by 3 labor organizations while Hoffa literature was displayed on a table at the hall. Dan Lutz, Leedham campaign manager, stated that he submitted a flyer via facsimile to each local union with a cover letter requesting that the flyer be photocopied and left on literature table. The flyer in question was sent by a JBlast.com, which was contracted by the Leedham campaign to send a blast fax to all local unions regarding this flyer. Lutz did not follow up with a phone call to Local Union 81 or 305 to insure that the literature was placed on the table.
Local Unions 81 and 305 and Joint Council 37 share the facilities at 1874 N.E. 162nd Avenue, Portland, Oregon. The lobby of the facility contains a table designated for campaign literature. Tom Strickland and Tony Andrews, respectively the principal officers of Local Unions 81 and 305, agreed that the table in question is under the jurisdiction of Local Union 305 and not Local Union 81. Strickland stated that Local Union 81 has its own countertop and bulletin board for campaign literature down the hall from the table in question; Strickland further stated that he never received the fax in question, but will gladly leave out flyers for any candidate for International office on the Local Union 81 counter, and post them on the local union's bulletin board. There is currently no campaign literature on the counter or posted to the bulletin board of Local Union 81.
Andrews claimed that he made the photocopies and left out the literature on the Local Union 305 literature table, as requested by the Leedham campaign. Andrews claimed that he personally made inspections and always saw the Leedham flyers on that table.
Dan O'Keefe told our investigator that he visited the facility on October 11, 2006 and did not see any Leedham flyers on Local Union 305's lobby table. O'Keefe claimed that he carefully thumbed through the Hoffa materials placed there to be sure that he was not overlooking the Leedham materials, but he found no Leedham flyers. In response, Andrews does not recall inspecting the table on October 11 specifically. This protest was filed on October 13. As soon as Andrews received a copy of the protest, he phoned Terry Schneider, office manager at Local Union 305, who inspected the table and found Leedham flyers there.
Analysis
Article VII, Section 7(h) of the Rules requires each local union to establish and maintain a literature table or bulletin board in a public area of its offices for the "nondiscriminatory distribution/display of campaign literature." Article VII, Section 5(a)(4) prohibits a local union from discriminating for or against a candidate in the administration of its literature table. Article VII, Section 12(a) protects all members' rights "to distribute campaign literature," and grants "members of the Union … the reciprocal right to hear or otherwise receive such campaign advocacy." Under these provisions, the removal or non-placement of one campaign's flyer from a union bulletin board while leaving another campaign's literature there is a violation of the Rules. Noll & Riccio, 2001 EAD 294 (March 31, 2001), aff'd, 01 EAM 56 (April 6, 2001).
The Election Supervisor's Advisory on the Use of Literature Tables and Bulletin Boards for the Distribution of Campaign Literature Inside Union Halls ("Advisory") states that each slate is allowed to display multiple copies of one piece of literature on a local union's literature table. The Advisory further states that each local union must assign a staff member or union officer who is not a candidate to "make an inspection of the literature table or bulletin board at least twice weekly to assure that copies of both slates' campaign literature are available."
The Advisory also requires local unions to create and maintain a log of the periodic inspections of the local union's literature table. The log's purpose is to provide contemporaneously recorded proof of inspection of the literature table. Without the required log, the local union must rely on the recollection of an officer or employee of the local union that is accused of violating the literature table provision of the Rules. Such recollection is a poor substitute for the log the Advisory requires.
Here, Andrews submitted photocopies of various pieces of campaign literature that Local Union 305 received from various campaigns. Andrews described the collection of literature as a "log" of inspections. However, this evidence rarely documents the date each piece of literature was received and does not document the dates Andrews inspected the literature table and found each piece of literature present. Accordingly, we conclude from Andrews' evidence that the literature table was not inspected as the Advisory required, and we credit O'Keefe's statement that he found no Leedham literature on the table.
For these reasons, we GRANT this protest with respect to Local Union 305. However, we DENY the protest with respect to Local Union 81 as we have no evidence that Leedham literature was sent to that local union.
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 Local Union 305, its officers, business agents, and representatives not to interfere with any right of campaigns to communicate with members. In particular, we direct these representatives to promptly display campaign literature received from all candidates on the local union's literature table as required by the Rules and the Advisory, and to inspect the table as required and document such inspections in a log to insure that such campaign material remains displayed.
We further direct Local Union 305, no later than October 26, 2006, to photocopy an additional 50 copies of the Leedham campaign flyer sent via facsimile on October 6, 2006, and place said copies on that local union's literature table. The cost of these photocopies shall be borne by Local Union 305.
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 379
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
Tony Andrews, Secretary-Treasurer
IBT Local Union 305
1870 N.E. 162nd Avenue
Portland, OR 97230-5642
Tom Strickland, Secretary-Treasurer
IBT Local Union 81
1870 N.E. 162nd Avenue
Portland, OR 97230-5642
tom@teamsters81.org
Steven R. Newmark, Esq.
Office of the Election Supervisor for the
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