Protest Decisions

IN RE: DENIS TAYLOR, Protestor.
Protest Decision 2011 ESD 131
Issued: February 22, 2011
OES Case No. P-099-012711-AT

Denis Taylor, member and president of Local Union 355 and appointed trustee of Local Union 82, 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 Local Union 82 member David Corbitt threatened him for protected activity, in violation of the Rules.

Election Supervisor representative Peter V. Marks, Sr., investigated this protest.

Findings of Fact

Protestor Taylor serves as appointed trustee for Local Union 82. On January 26, 2011, he traveled from Baltimore, where he is the elected president of Local Union 355, to Boston to perform his trustee function. He wore a black, long-sleeved pullover with "Hoffa 2001" on the left breast. He had no contact with any employer representative that day nor did he anticipate when he donned the overshirt that morning that he would meet one.

David Corbitt send Taylor an email that night. It read:

It was brought to my attention that you were wearing a Hoffa Shirt today. If you are not aware campaigning on union time is Prohibited. So at this time please refrain from wearing any Union officials shirts, hats or jackets during work hours because this is a violation of the Department of Labor. If you or any other Trustees do so It will leave me no choice but to file a complaint. Thank you in advance for your understandings in this matter. We the members like to make sure that our officials are obeying all Federal and State laws and rules as stated on the Web pages of OLMS, EBSA, DOL, NLRB. If you have any questions regarding the rules feel free to contact me or go on the Web sites and read it your self!

Taylor regarded Corbitt's email as an impermissible threat. His protest stated the following, in relevant part:

It is my understanding that my wearing of this shirt under the conditions described above has been determined by the Election Office not to be a violation of the Campaign Contribution Rules…

My complaint is as a result of this member's threatening email to charge me with a violation of the Department of Labor regulations unless I conform to his interpretation of the Election Rules. This intimidation has no place in the election process. The threat of a DOL complaint or audit to a Union official is akin to threats to John Q Public of an IRS audit. You may not have done anything wrong but you surely don't want to go through the process. I believe that this type of threat has a chilling effect on my rights as a member to campaign within the rules.

Should this member take issue with anything I have done that could potentially be a violation of the rules he should file a protest with the Election Officer for a proper investigation and determination. For him to bypass this process and attempt to intimidate me directly is a clear violation of the rules and should be dealt with as such.

Analysis

We first address Corbitt's allegation that Taylor violated the Rules by wearing the Hoffa 2001 overshirt at the local union hall. On the facts presented here, he did not. The decision in Stockton, 2001 EAD 292 (March 31, 2001), spells this out directly, viz.

To guard against the appearance of local union support for any particular … candidate or slate that might be created when a representative of the union wears campaign insignia while dealing with any third party as representatives of the union, such displays by representatives of the union serving as such are prohibited. See Advisory on Wearing of Campaign Buttons and Other Emblems (October 10, 2000), and Addendum to Advisory on Wearing of Campaign Buttons and Other Emblems (March 8, 2001). This restriction applies not only to union officers, business agents and full-time employees, but also to any member who represents the union in dealings with third parties. Id.

The first cited advisory provided the following rationale for this rule. Thus,

[A]n unrelated third party might assume that the union entity was supporting or opposing a particular candidate or group of candidates if a union officer, business agent or employee were permitted to wear campaign emblems during the time he/she was representing the union in relations with unrelated third parties. Accordingly, while union officers, business agents, and employees may wear campaign emblems during working hours and while engaged in their regular union business, they may not wear such emblems when representing the union before or with an unrelated third party. Thus, union officers, business agents and employees may not wear campaign emblems when meeting with an employer of IBT members for collective bargaining or grievance resolution, when participating either as an advocate, witness or panel member in grievance hearings, when appearing on behalf of the union before legislative, administrative or judicial tribunals, when making public appearances on behalf of the union, or when engaged in similar type activities where the wearing of a campaign emblem might inappropriately suggest that the union with which the officer, business agent or employee is affiliated, is, as an entity supporting or opposing any particular candidate or group of candidates.

The addendum to this advisory extended the prohibition to "any member who represents the union in dealings with third parties. Therefore any member, including a part-time union employee or a steward, who represents the union should not wear campaign emblems while engaging in any activity described above."

The precedent provided by Stockton has made it unnecessary to reissue the cited advisories in this election cycle. This precedent establishes that Taylor was permitted to wear a shirt that bore a campaign emblem in the union hall while carrying out his union duties where he did not meet with third parties while wearing it.

Turning to Taylor's protest against Corbitt, Article VII, Section 12(g) prohibits threats for activity protected by the Rules. To find an improper threat, activity must constitute a palpable threat of imminent harm. Ramos, 2006 ESD 65 (February 3, 2006). We have held that the filing of a protest does not constitute retaliation prohibited by the Rules, "as it is an allegation only and does not impair any substantial right of membership, candidacy, or employment." Phillipenas & Devilbiss, 2011 ESD 121 (February 21, 2011). It follows, therefore, that the threat to file a protest similarly is not impermissible retaliation. Accordingly, we DENY this 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:

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., Suite 421 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
        2011 ESD 131

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
3541 N. Summit Avenue
Shorewood, WI 53211
scottsoldon@gmail.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

Julian Gonzalez
Lewis, Clifton & Nikolaidis, P.C.
350 Seventh Avenue, Suite 1800
New York, NY 10001-5013
jgonzalez@lcnlaw.com

Denis J. Taylor, President
Teamsters Local Union 355
841 Meadow Heights Lane
Arnold, MD 21012
Teamsters82@hotmail.com

David Corbitt
7 Hardy Street
South Boston, MA 02127
Davidcorbitt71@gmail.com

David F. Reilly
22 West Main Street
Wickford, RI 02852
dreilly@dfresq.com

Maria Ho
Office of the Election Supervisor
1801 K Street, N.W., Suite 421 L
Washington, D.C. 20006
mho@ibtvote.org

Kathryn Naylor
Office of the Election Supervisor
1801 K Street, N.W., Suite 421 L
Washington, D.C. 20006
knaylor@ibtvote.org

Jeffrey Ellison
214 S. Main Street, Ste. 210
Ann Arbor, MI 48104
EllisonEsq@aol.com