Protest Decisions

IN RE: ERIC ROBERTSON, Protestor.
Protest Decision 2011 ESD 146
Issued: March 2, 2011
OES Case No. P-150-021711-SO

Eric Robertson, member of Local Union 728, 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 a campaign flyer distributed by the Restore the Power slate violated the Rules.

Election Supervisor representative Dolores Hall investigated this protest.

Findings of Fact and Analysis

The Restore the Power slate is competing in Local Union 728's delegates and alternate delegates election. Robert Wood, a candidate for delegate on that slate, distributed a campaign flyer to members of the local union employed at UPS Atlanta and UPS Pleasantdale on February 16, 2011, the day ballots were mailed, exhorting members to support the slate.

The one-page, two-sided flyer was printed in yellow paper. A photocopy of the letterhead of Local Union 728 appeared at the top of the front of the flyer. Beneath that masthead were the phrases "Results of Local 728 IBT Delegates Nomination Meeting are as follows" and "Sample Ballot." The candidates on the Restore the Power slate were listed on the left side of the balance of the front of the flyer. No other candidate or slate names appeared on the flyer. The phrase "Campaign Information for Restore the Power Slate" was printed at the bottom of the page.

The reverse of the flyer contained what Wood characterized as "an explanation of just what the delegate election means."

The front of the flyer is similar to the notice of nominations meeting results that the local union posted on worksite bulletin boards. The obvious differences are that the flyer contained information urging support for the Restore the Power slate and omitted the names of candidates the slate opposed. Wood told our investigator he did not merely copy and distribute the nominations meeting results notice because he did not want to give his slate's opposition any exposure.

Wood said he made "50 or 60 copies" of the flyer and distributed some of them outside the building at UPS Pleasantdale when he made a stop there. He gave the rest to a supporter at UPS Atlanta, who distributed them at that facility. At least one of the flyers was prominently posted on a worksite bulletin board at one of the facilities.

Article XI, Section 1(b)(6) of the Rules prohibits the campaign "use of the Union's official stationery with the Union's name, insignia or other mark identifying the Union." This prohibition extends to photocopies of the stationery as well. The Rules prohibit such use in part to prevent giving the impression that the union supports a particular candidate or slate in the pending election. Wood violated this provision when he distributed a campaign flyer bearing an image of the local union's letterhead. Accordingly, we GRANT the protest.

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 Wood, the Restore the Power slate, and the slate's supporters to cease and desist from using local union letterhead for a campaign purpose and to refrain from any further violation of the Rules.

We further order the notice attached to this decision to be posted on all worksite bulletin boards at the UPS Atlanta and UPS Pleasantdale facilities within two days of issuance of this decision.

We further order at least one supporter of the Restore the Power slate (who may also be a candidate on the slate) to appear in the parking lot used by members of Local Union 728 at each of the UPS Atlanta and UPS Pleasantdale facilities one-half hour before the start of the morning shift of package car drivers and distribute at each location 50 copies of the notice attached to this decision to union members arriving for work. No more than one copy of the notice may be given to any such member. Such distribution must be completed within two days of issuance of this decision. The slate supporter(s) distributing the notice may not also distribute campaign literature for the slate at the same time.

An affidavit of compliance with the remedies ordered here shall be submitted within two days following completion of each element of the remedy.

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

This order is imposed to deter future Rules violations and to attempt to remedy the harm caused by the improper use of union letterhead on campaign literature. We limit the scope of the remedy to the two UPS facilities identified because investigation showed that the distribution of the flyers occurred there and nowhere else. We impose no further remedy because Wood told our investigator that he has attempted to retrieve the flyers from members to whom he distributed them and has removed the flyer from the worksite bulletin board where it was posted.

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, 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 145

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 Hall 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

Eric Robertson
375 Spence Road
Fairburn, GA 30213
e_robertson@yahoo.com

Mike Drummond
Restore the Power Slate
280 Birkdale Drive
Fayetteville, GA 30215
ma74931@bellsouth.net

Robert Wood
ups1973@bellsouth.net

Jimi Richards, Secretary-Treasurer
Teamsters Local Union 728
2540 Lakewood Avenue, S.W.
Atlanta, GA 30315
jimi_richards@bellsouth.net

Dolores Hall
1000 Belmont Place
Metairie, LA 70001
hall1000@cox.net

Maria S. 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