Protest Decisions

IN RE: TIM HILL, Protestor.
Protest Decision 2011 ESD 136
Issued: February 24, 2011
OES Case Nos. P-116-020711-FW, P-117-020811-FW, P-130-021111-FW, & P-137-021411-FW

Tim Hill, member of Local Union 690, filed four pre-election protests pursuant to Article XIII, Section 2(b) of the Rules for the 2010-2011 IBT International Union Delegate and Officer Election ("Rules"). The protests in Case Nos. P-116-020711-FW and P-117-020811-FW alleged that the Tried and True Performance Team used an impermissible union endorsement in campaign literature. The protests in the remaining case numbers alleged violations of the Rules with respect to observer rights, security of voted ballots, and related issues.

These protests were consolidated for decision. Election Supervisor representative Rochelle Goffe investigated the protests alleging impermissible endorsement; Election Supervisor representative Chris Mrak investigated the remaining protests.

Findings of Fact and Analysis

Local Union 690 will elect three delegates and one alternate delegate to the IBT convention. Ballots were mailed February 4 and are to be counted February 25. Two full slates are competing in the election. Protestor Hill supports the www.690TeamstersUnited.org slate, comprised of rank-and-file members. The Tried and True Performance Team includes local union officers.

1. Case Nos. P-116-020711-FW and P-117-020811-FW - Alleged Improper Endorsement

The same date ballots were mailed, Tried and True mailed various campaign flyers to local union members reciting candidate biographies and campaign platform for its slate and criticizing the opposing slate. Most if not all of Tried and True's flyers contained the following:

The Tried and True Performance Team is 100% supported by the Local 690 staff: Mark Brandt, Steve Bruchman, Sue Gemmell, W. Terry Moser, Kayla Pizzillo, Lou Ann Stamp, Mike Valenzuela, and Ron Vevoda

The protests alleged that this endorsement violated the Rules.

Article VII, Section 12(b) of the Rules declares that "[t]he Union or a Local Union as such or the General Executive Board or an Executive Board of a Local Union as such may not endorse or otherwise advance a candidacy, even if all members agree on the endorsement or candidacy."

Precedents under this provision make clear that endorsements by the Union or Local Union are prohibited. Pope, 2000 EAD 3 (August 1, 2000) (endorsement resolution adopted at formal meeting of construction trades conference held improper); Jensen, 2001 EAD 479 (September 28, 2001), aff'd, 01 EAM 93 (October 3, 2001) (invitation to campaign rally from "the elected officers and business agents" of the local union violated the Rules).

In Jones, 2001 EAD 222 (March 8, 2001), the Election Administrator held that the endorser had the same right to endorse as any other member and used his title as local union officer to identify himself, not to convey official union action. See also, Sandford, 2006 ESD 142 (April 3, 2006). In allowing the endorsement, the Election Administrator wrote:

The relevant precedent reveals a distinction between an endorsement by a local union institution, which is prohibited, and an endorsement by individual members who comprise a local union institution, which is permitted.

"[T]he Rules do not prohibit the members of an Executive Board from identifying themselves as such when [endorsing] candidates; as long as the endorsement is not made as an official endorsement of the Executive Board as an entity, but as individual endorsements by the members of the Executive Board, the Rules are not violated." [Citation omitted]. In Custer[1], the Election Officer reiterated the distinction: "While members of the Local Union and Local Union officers have the right as individuals to express their preferences for particular candidates, the Local Union and the Local Union Executive Board as institutions cannot … endorse candidates."

Jones, 2001 EAD 222 (March 8, 2001) (emphasis added).

We followed this precedent in Jensen, 2006 ESD 167 (April 25, 2006), aff'd, 06 EAM 37 (May 12, 2006), viz.

Under the Rules and Election Office precedents, endorsement by the Union or Local Union "as such" is essential to finding a violation of Article VII, Section 12(b). Our precedents have given broad scope to individuals, and to groups of union members, who have endorsed candidates and used their titles for identification purposes in connection with the endorsement. What we have strictly prohibited under the Rules are endorsements that come from the Union or Local Union "as such."

Based on this authority, we DENY this aspect of the protest. The endorsement on Tried and True's campaign literature is that of the "Local 690 staff," which is not the union as such nor an official body within the union. In addition, the endorsement identifies the staff members making it by name, conveying that it is their personal endorsement rather than the union's.

2.      P-117-020811-FW - Union-funded mailing

Protestor Hill also asserts that a union-funded mailing sent on the same day as the delegate election ballots constituted campaigning by local union. The mailing, was a letter, printed on local union letterhead and signed by Val Holstrom, local union secretary-treasurer and a candidate for delegate on Tried and True. The letter's content responds to a flyer "claiming that the Local is being sued for retaliating against its own members." It referred to a lawsuit two former employees of the local union have filed alleging that their discharges were improper. The letter stated the following:

Do not let the flyers fool you. Your Local did not take any action that impacted the membership of the former employees. As the lawsuit itself makes clear, the individuals voluntarily left membership after their employment came to an end. Had either of them found work in a bargaining unit represented by Local 690, we would have fought as hard for their rights as any other member. That is what my administration stands for, representing each and every member fairly and vigorously.

The referenced flyers, circulated by the slate protestor Hill supports, asserted that defending the former employees' lawsuit against the union could "cost tens of thousands of Union dollars, but the damages paid to the plaintiffs could easily bankrupt our Local Union, all for retaliating against our members."

Holstrom told our investigator that the timing of his letter about the lawsuit was purely coincidental to mailing of ballots. He said he received a lot of questions in the preceding three weeks about the flyer the opposing slate was distributing and thought the best response was by letter. He said he prepared the letter, gave it to the union's attorney for review, and mailed it out the same day he got it back, which was also the date ballots were mailed.

Article VII, Section 7(a)(1) of the Rules provides that each candidate shall be permitted a reasonable opportunity, equal to that of any other candidate, to have his/her literature distributed by the union, at the candidates expense. Article VII, Section 7(c) provides that each candidate shall pay, on a reasonable basis, for the actual cost of distribution, including stationery, duplication, time required to do the work and postage for mailing. Article VII, Section 8(a) provides that no publication or communication financed, directly or indirectly, by a union may be used to support or attack any candidates or the candidacy of any person. Article XI, Section 1(b)(3) provides that no union 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. Article XI, Section 1(b)(6) provides that no union funds or other things of value shall be used, directly or indirectly, to promote the candidacy of any individual.

We assess union-financed communications under the tone, content and timing test.:

To establish a violation of Section 401(g), it is not necessary that the questioned publication be explicitly or implicitly committed to endorsing specific candidates or attacking the opposition. Rather its overall tone, timing, and content must be evaluated to determine whether there is any blatant encouragement of the incumbent [or challengers].' Donovan v. Local 719, United Automobile, Aerospace and Agricultural Implement Workers of America, 561 F.Supp. 54, 58 [113 LRRM 2902, 2906] (N.D. Ill. 1982); accord Telephone Workers, 703 F.Supp. at 206, Usery v. International Org. Masters, Mates and Pilots, 538 F.2d 946, 949 [92 LRRM 3297] (2d Cir. 1976); Liquor Salesmen's Union Local No. 2, 334 F.Supp. at 1369, 1377 [78 LRRM 2020], aff'd, 444 F.2d 1344 [78 LRRM 2030] (2d Cir. 1971); Wirtz v. Independent Workers Union of Florida, 272 F.Supp. 31, 33 [65 LRRM 2924] (M.D. Fla. 1967). Regarding content, federal regulations interpret LMRDA §401(g) as 'prohibit[ing] any showing of preference' by union-financed publications through praise, endorsement, criticism or attack directed towards a candidate, 29 C.F.R. §452.75 (1994); accord McLaughlin v. American Fed'n. of Musicians, 700 F.Supp. 726, 734 [132 LRRM 2508] (S.D.N.Y. 1988) ('promotion of a candidate under §401(g) includes both affirmative statements about the candidate and negative references about the opposition.').

In addition to the timing, tone, and content, courts often consider 'the circumstances surrounding the challenged publications'. Am Fed'n. Musicians, 700 F.Supp. at 734 (citing Liquor Salesmen's Union, 334 F.Supp. 1377). In American Fed'n of Musicians, the court looked beyond the text of the challenged articles to consider the legitimate need for reporting on and discussion of an incumbent union president's activities in a union-financed newspaper, even though such reporting could impact an upcoming election. American Fed'n. Musicians, 700 F.Supp. at 734. The court held that 'the continued direct and indirect personal attacks [on the incumbent] ... constituted more than just reporting on issues that concerned the union.' Id. at 735.

Reich v. Teamsters Local 843, 149 LRRM 2358, 2364 (D.N.J. 1994); see also, e.g., Camarata v. Teamsters, 102 LRRM 3053 (D.D.C. 1979).

We GRANT this aspect of the protest. We find that the principal purpose for mailing the letter to all members was to respond to campaign literature circulated by the Teamsters United slate. We reach this conclusion for three reasons. First, the lawsuit was a campaign issue, as evidenced by the Teamsters United flyer. Holstrom joined issue over the lawsuit as it was being debated in the campaign.

Second, we find that this letter from the local union was timed to arrive in members' homes at the first opportunity they had to cast their votes in the delegates election. The timing was chosen to put information about Holstrom and his slate, bearing the local union's imprimatur, in members' hands at a critical time in the election.

Finally, the letter went well beyond any issue the lawsuit raised, by stating how Holstrom and his staff would have responded had the plaintiffs obtained employment under Local Union 690's jurisdiction following their discharges by the union: "we would have fought as hard for their rights as any other member. That is what my administration stands for, representing each and every member fairly and vigorously." Even though the letter did not refer to the delegates election, this statement concerns Holstrom's administration generally and portrays it favorably at the critical time when the members were casting votes.

Our ruling takes no position on the content of either the campaign flyer or the letter. Delegate candidates campaign as they see fit, raising issues as they choose. The letter here violated the Rules because Hostrom responded to the flyer not with a campaign piece paid forwith campaign funds, but with a letter printed and mailed at local union expense.

3. P-130-021111-FW & P-137-021411-FW - Observer rights and ballot security

The protests in these cases alleged that Tim Shelton, chair of the local union election committee, retrieved hundreds of voted ballots from the post office on February 9, without notice to or presence of observers and at a time when only ballot packages returned to the post office as undeliverable should have been picked up.

Under the approved local union election plan, the local union has rented two post office boxes. One is for voted ballots; the second is for ballot packages returned to sender as undeliverable. Under the plan, the packages returned as undeliverable are to be retrieved daily so that they may be remailed, once current addresses can be located for the intended recipients. Voted ballots are to be retrieved only on the date ballots are to be counted.

Investigation showed that when Shelton went to the post office on February 9, he was given 17 ballot packages returned as undeliverable and 379 ballot return envelopes containing voted ballots. Investigation further showed that Shelton, although chair of the election committee, did not convene the committee until well after ballots were mailed. He alone undertook the design and checking of the ballot package envelope and the ballot return envelope and erred by listing incorrect address information on them. He had printed on the outside and return envelopes the numbers stamped on the PO box keys he had received from the post office instead of the numbers of PO boxes he had rented. As a result, voted ballots and undeliverable ballot packages were returned to the post office with nonexistent and technically undeliverable addresses and the post office turned all of them over to Shelton.

When Shelton returned to the local union hall with the voted and undeliverable ballots, Holstrom contacted the opposition slate to advise of the circumstances. Richard Reilly, delegate candidate on Teamsters United, immediately proceeded to the hall. Upon arrival, he said he found Holstrom and Shelton in a conference room with a postal service tote full of envelopes, most of which were ballot return envelopes containing voted ballots. OES representative Chris Mrak, contacted by telephone, instructed that the ballot return envelopes be photocopied to aid in chain of custody and that the envelopes then be returned to the post office for holding until the date of the ballot count.

Investigation further showed that, without notice to OES, Holstrom caused a second photocopy of the ballot return envelopes to be made. The second copy was not maintained by the local union but instead was retained by Holstrom. Holstrom told our investigator he offered a copy of the photocopy to Reilly but Reilly declined. Reilly denied that a copy was offered him and denied knowing that Holstrom had a copy or that anything more than the original photocopy had been made. Two additional witnesses told our investigator they were present but denied that Holstrom made the offer to Reilly in their presence.

Article XI, Section 1 of the Rules states that "[e]ach candidate nominated for [Convention delegate or alternate delegate] and each slate of candidates nominated for such position(s) shall have the right, at his/her/its expense, to have at least one (1) observer present at each and every phase of the election process. Such observer shall be a candidate or a member of good standing of the Local Union."

Article XI, Section 5 states that "[o]bservers shall further be permitted to be present when the cast ballots are picked up from the post office box and to accompany the transfer of such ballots to the location where they are to be counted. Notice shall be given to all affected candidates of the times of such mail ballot pick-ups."

Shelton's retrieval of voted ballots on February 9 violated the observer rights of Teamsters United. The Rules grant observer rights to curb ballot fraud and to allow candidates to verify first-hand that the election has been decided by qualified voters and not by improper manipulation of the contents of the ballot box. Denial of observer rights undermines confidence in the integrity of the election. See Fuentes, 2006 ESD 216 (April 28, 2006), aff'd, 06 EAM 32 (May 4, 2006).

For this reason, we GRANT these protests. We do so even though we find no evidence that fraud occurred. Instead, we find that Shelton was given ballot return envelopes as a result of improper addressing of those envelopes.

Although there is no evidence of fraud and the ballots count has yet to occur, there is no reason to wait on ordering the rerun election remedy. Teamsters United was effectively - although apparently through inadvertence - denied the right to observe the pick-up of voted ballots from the post office. The election was therefore not "open" in all relevant respects, as the Rules require. Where conduct has occurred "which may prevent or has prevented a fair, honest, open and informed election, the Election Supervisor may take whatever remedial action is appropriate. Rules, Article XIII, Section 4. On the facts presented here, this election would not be certified because a slate was denied its right to observe the critical step of ballot retrieval and confirm for itself the integrity of that process.

We also find that Holstrom's act of retaining an additional photocopy of the ballot return envelopes violated the Rules. This information was a union asset which he, as a candidate, could not have unless all candidates were afforded similar access. The information contained on that photocopy identified members who had voted and would allow him to target get-out-the-vote activities.

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 order Local Union 690 to rerun its delegates and alternate delegates election. The local union shall post notice of the rerun election on all union bulletin boards under the jurisdiction of the local union using OES Form 11, modified to indicate that the election is a rerun election, within two days of receipt of this decision. Ballots shall be mailed on Wednesday, March 9, 2011. The tally of ballots shall take place on Wednesday, March 30, 2011, at 9:00 a.m. at the local union's offices. The notice of re-run election shall remain posted until replaced by the Local Union Ballot Tally Certification (OES Form 13) on or after March 30, 2011.

All ballot return envelopes in the election that were to be counted February 25, 2011 are hereby impounded and the voted ballots they contain will not be counted.

Pursuant to our authority under Article XIII, Section 4(v), the rerun election will be under the supervision of OES, with the assistance of a local union election committee. We intend to use a local union election committee in part to provide local union members with experience in administering an election. The committee shall be comprised of six members, with each slate responsible for nominating three members. We order this composition, which varies from the local union election plan, to insure equal representation. The OES representative will be the chair of the committee. Any member of the local union, including those currently serving on the committee, shall be eligible for nomination to the committee. Nominations shall be made no later than Monday, February 28, directly to OES representative Chris Mrak.

Each slate will be provided with a copy of the photocopy of ballot return envelopes that was made on February 9, 2011. In addition, each slate will be provided with the TITAN employer codes with the corresponding employer names for the employers under the jurisdiction of the local union. This aspect of the remedy is to restore a level playing field that was upset when Holstrom retained a copy of those envelopes for his own use.

Holstrom is ordered to cease and desist from using union funds for campaign activity.

The local union is directed to send to all members the remedial notice attached to this decision within two days of receipt of this decision. The local union is further directed to post this notice on all worksite bulletin boards under the jurisdiction of the local union. The posting shall be made within two days of receipt of this decision and shall remain posted until the Local Union Ballot Tally Certification (OES Form 13) is posted on or after March 30, 2011.

The local union is to pay the printing and first-class mailing costs of a one-page, two-sided mailing by Teamsters United to all members, on a date of the slate's choosing. This order is strictly remedial in nature and is intended to restore the level playing field upset when the local union sent the mailing concerning the local union lawsuit.

A remedial order of the Election Supervisor takes immediate effect unless stayed.

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 136

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

Tim Hill
6704 East Seve
Spokane, WA 99212
tdutim@gmail.com

Val Holstrom, Secretary-Treasurer
Teamsters Local Union 690
1912 No. Division St., Ste. 200
Spokane, WA 99207
vholstrom@teamsterslocal690.org

Christine Mrak
2357 Hobart Avenue, SW
Seattle, WA 98116
chrismrak@gmail.com

Rochelle Goffe
1234 22^nd Avenue, E
Seattle, WA 98112
rochellegoffe@gmail.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