IN RE: FRED ZUCKERMAN, Protestor
Protest Decision 2010 ESD 47
Issued: November 22, 2010
OES Case No. P-047-110210-NA
Fred Zuckerman, member of Local Union 89 and candidate for International office, filed a pre-election protest pursuant to Article XIII, Section 2(b) of the Rules for the 2010-2011 IBT International Union Delegate and Officer Election ("Rules"). The protest alleged that Hoffa-Hall 2011 violated the Rules by using union resources to campaign.
Election Supervisor representative Maureen Geraghty investigated this protest.
Findings of Fact
On Monday, November 1, representatives of the International and various local unions met at the Sheraton Gateway Suites near O'Hare Airport in suburban Chicago to prepare for Joint Arbitration Committee hearings to take place with UPS on November 2 and 3. Approximately 40 persons attended the union caucus meeting to review and discuss the cases scheduled for hearing. The meeting commenced at 3 p.m. and lasted about 1 hour. Brian Buhle serves as Secretary-Treasurer of Local Union 135, which represents members employed at UPS. He attended the Joint Arbitration Committee caucus meeting in his official capacity. Buhle is also a candidate for International office on the Hoffa-Hall 2011 slate.
At the conclusion of business and after unanimous vote on a motion to adjourn formally ended the meeting, Local Union 455 business agent Allen Frisbee stood and announced in a loud voice that a $100 per member fundraiser for the Hoffa-Buhle campaign would take place at 5 p.m. that day in Room 1100 of the hotel. Frisbee had not conducted the meeting that preceded his announcement, and he was not sitting at the head of the room where the leaders of the meeting sat. He made his announcement standing near his seat in the audience section of the room as attendees were filing out. No one who had conducted the meeting responded to the announcement, acknowledged it had been made or endorsed its message. Some witnesses told our investigator that they did not hear Frisbee's announcement as they were speaking with other attendees and were not listening.
Room 1100 is Sheraton's Presidential Suite. The suite consists of a large living room adjacent to 2 bedrooms. Buhle occupied one of the bedrooms while a business agent from his local union the other. Buhle told our investigator he rented the suite so he would have a meeting room large enough to hold the fundraiser. The suite rented for $339.00 for the night of November 1, tax included. Buhle paid for the suite using his local union credit card when he checked out on November 2. The total hotel invoice was $443.69. In addition to the suite charge, the invoice included meals for Buhle and 2 business agents from his local union. On November 3, Buhle wrote a check for $339.00 on a Hoffa-Buhle 2011 checking account to reimburse the local union for the full cost of the suite, including the bedrooms he and a business agent used for overnight lodging.
Buhle told our investigator that his local union permits an official who incurs a hotel bill on union business to place the entire hotel charge, including any personal expense posted there, on the local union's credit card. According to Buhle, the official must reimburse the personal expense promptly by giving the local union a check payable to the credit card issuer. Buhle explained that the local union pays the ensuing credit card statement with two checks - the official's personal check and the local union's check for the balance of the bill. Under this practice, the official's personal check is not cashed until the credit card issuer does so some 25 to 55 days after the date of the expense, depending on when during the credit card's monthly billing cycle the expense is incurred.
Analysis
The protest alleged that Frisbee's announcement of the fundraiser in the union caucus room of the hotel violated the Rules. The protestor likened Frisbee's conduct to the violation found in Zuckerman, 2010 ESD 5 (June 28, 2010), appeal withdrawn, 10 EAM 2 (July 7, 2010), where Hoffa-Keegel 2011 supporters placed campaign flyers in hearing rooms of a joint labor-management conference. In that case, we found that placement of the flyers improperly used a union facility - the rented hotel conference room - for a campaign purpose and impermissibly signaled to the participants in the grievance hearings held there that the union favored a slate in the pending election. We wrote:
In a joint labor-management grievance setting, panels make decisions about the merit of discharge and suspension decisions and rely for their continued viability on confidence by the participants in the integrity of the process. Any suggestion that the outcome of a given case might be influenced by internal union political factors or anything other than the merit of the case does the process a considerable disservice.
The quoted policy consideration does not guide this case. Here, the November 1 pre-hearing caucus was a union meeting, not a joint labor-management hearing. Individual grievants and representatives of management were not present at the caucus. For this reason, the dangers that the hearing process might be tainted by partisan politicking are greatly diminished.
Rather, Article VII, Section 5(a) concerning campaigning at union meetings governs Frisbee's conduct, viz.,
(3) The Local Union need not allot time for campaigning during any of its meetings. However, if campaigning during such meetings is permitted, the Local Union shall notify all candidates for the positions for which such campaigning will be permitted of the opportunity to speak at least five (5) days prior to the meeting and shall divide the time equally between those candidates (or candidates' credentialed representatives) who request an opportunity to speak. The order of appearance shall be determined by lot.
(4) A Local Union shall not discriminate or permit discrimination in favor of or against any candidate in conjunction with its meetings or otherwise. This requirement shall apply not only to formal presentations by or on behalf of candidates but also to informal campaign activities, such as, for example, comments on candidates during meetings, literature distribution at meetings, literature distribution tables, etc.
Article VII, Section 5(a) applies by its express terms to meetings at the local union level. Article VII, Section 12(c) more broadly prohibits use of all union funds and facilities to assist in campaigning "unless all candidates are provided equal access to such assistance and are notified in advance, in writing, of the availability of such assistance." When Sections 5(a) and 12(c) are read together, we find that the provisions prohibiting discrimination and requiring advance written notice that campaigning will be permitted apply to the union caucus meeting held November 1 at the Sheraton.
Having reached this conclusion, we find however that Frisbee's announcement did not occur during the meeting. Without contradiction, witnesses stated that the meeting had formally adjourned and members were departing when Frisbee stood and announced the fundraiser. Accordingly, the prohibition on partisan statements during a union meeting does not apply.
Moreover, we do not find that Frisbee's message was the message of the union. As noted, Frisbee had not convened nor spoken at the meeting, was not sitting with those who led the meeting, and did not move to the head of the room to address those assembled. Instead, he was a face in the crowd who stood after adjournment and called to any who heard him that a fundraiser would start in an hour. Our investigation found no evidence that Frisbee's shout was anything more than a spontaneous utterance and not part of a planned publicity campaign for the fundraiser. For this reason, we do not find that his statement carried the implicit endorsement of the leaders of the meeting or the union as an entity.
This leaves the issue of whether Frisbee's statement made impermissible use of the union facility - the rented hotel conference room - for a campaign purpose. We find that it did and therefore GRANT this aspect of the protest. The setting in which Frisbee made his announcement gave him an advantage that campaigning in the hallway outside the conference room would not: all present in the conference room were there to attend and participate in a union meeting, and Frisbee took advantage of the audience assembled for that purpose in that space to campaign. Except for literature tables authorized by Article VII, Section 7(h), union facilities may not be used to campaign, absent advance written notice to all candidates, and Frisbee's action violated this prohibition. See also Rules, Article VII, Section 12(a) (freedom to exercise political rights "includes, but is not limited to, the right to distribute campaign literature (and otherwise to solicit support for a member's candidacy) outside a meeting hall before, during and after a Union meeting . . . .") (emphasis added).
We turn next to the fundraiser itself, which was held in Buhle's hotel suite. The Buhle campaign paid for the suite with a union credit card, promptly writing a check on a Buhle campaign account to reimburse the local union. The use of a union credit card for a campaign purpose violates the Rules, even if promptly reimbursed, because it gives union officials with credit card access an advantage that candidates who do not have such a privilege are denied. Further, the local union policy employed here effectively granted an extension of credit to the Buhle campaign because the local union held Buhle's campaign check and sent it to the credit card issuer when the monthly statement arrived. Under these circumstances, Buhle's campaign account was not debited until 4 to 8 weeks after the expense was incurred. Instead of placing the entire hotel charge on his local union credit card, Buhle should have settled the campaign portion of the hotel bill with a campaign check, credit card, or personal funds at check-out.
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.
With respect to Frisbee's violation, we order him to cease and desist from using union facilities to campaign. We order no further remedy. Specifically, we decline the protestor's request that the Buhle campaign be required to disgorge the contributions received at the November 1 fundraiser, finding that Frisbee's announcement was not the only (and was not the most effective) means by which the fundraiser was publicized. Accordingly, we conclude that the funds generated by the event would likely have been generated absent Frisbee's announcement.
With respect to Buhle's impermissible use of a local union credit card to pay for a campaign expense, we order him to cease and desist from such conduct. We order no further remedy because Buhle exceeded the remedy we would otherwise order. By reimbursing the local union not merely for the living room area of the suite but for the entire suite, including the bedrooms that Buhle and another local union business agent occupied for a legitimate union purpose, Buhle saved the local union the cost of that lodging, a cost the local union would have incurred had Buhle and the business agent used separate hotel rooms for their overnight accommodations. This savings to the local union exceeded the value of the extension of credit that the Buhle campaign experienced by using the local union credit card.
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
Suite 1000
885 Third Avenue
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, 1801 K Street, N.W., Suite421 L, 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
2010 ESD 47
DISTRIBUTION LIST (BY EMAIL UNLESS OTHERWISE SPECIFIED):
Bradley T. Raymond, General Counsel
International Brotherhood of Teamsters
25 Louisiana Avenue, N.W.
Washington,D.C. 20001
braymond@teamster.org
David J. Hoffa
Hoffa Keegel 2011
1100 Connecticut Avenue, N.W., Ste. 730
Washington D.C. 20036
hoffadav@hotmail.com
Ken Paff
Teamsters for a Democratic Union
P.O. Box 10128
Detroit, MI 48210-0128
ken@tdu.org
Barbara Harvey
1394 E. Jefferson Avenue
Detroit, MI 48207
blmharvey@sbcglobal.net
Fred Gegare
P.O. Box 9663
Green Bay, WI 54308-9663
kirchmanb@yahoo.com
Scott D. Soldon
Previant Goldberg
155 North River Center Drive, Ste. 202
P.O. Box 12993
Milwaukee, WI 53212
sds@previant.com
Fred Zuckerman, President
Teamsters Local Union 89
3813 Taylor Blvd.
Louisville, KY 40215
fredzuckerman@aol.com
Robert M. Colone, Esq.
P.O. Box 272
Sellersburg, IN 47172-0272
rmcolone@hotmail.com
Carl Biers
Box 424, 315 Flatbush Avenue
Brooklyn, NY 11217
info@SandyPope2011.org
Allen Frisbee
Teamsters Local Union 455
Denver, Colorado
afrisbee@teamsterslocal455.org
Brian Buhle
Teamsters Local Union 135
1233 Shelby Street
Indianapolis, IN 46203
Bbuhle195@gmail.com
Maureen Geraghty
426 Old Salem Road
Winston-Salem, NC 27101
mg@geraghtylawfirm.com
William C. Broberg
1108 Fincastle Road
Lexington, KY 40502-1838
wcbroberg@aol.com
Kathryn Naylor
Office of the Election Supervisor
1801 K Street, N.W.
Washington, D.C. 20006
knaylor@ibtvote.org
Jeffrey Ellison
214 S. Main Street, Ste. 210
Ann Arbor, MI 48104
EllisonEsq@aol.com