IN RE: JIMMY MARTINEZ and JAMES KOLIS, Protestors.
Protest Decision 2011 ESD 178
Issued: March 23, 2011
OES Case Nos. P-146-021611-NE & P-157-021811-NE
Jimmy Martinez and James Kolis, members of Local Union 449, filed 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"). Martinez was a candidate for alternate delegate on the Generation Next slate. The two protests made the same allegation: that Local Union 449 denied Kolis freedom to exercise his right to show support for the candidate of his choice by prohibiting him from attending a regular membership meeting while wearing a Generation Next T-shirt.
Election Supervisor representative Deborah Schaaf investigated these protests.
Findings of Fact
The facts of this protest are not in dispute. On February 14, 2011 Kolis, wearing a Generation Next slate t-shirt, came to the Local Union 449 hall for a general membership meeting. While Kolis was signing in, Ken Nelligan, local union secretary-treasurer, told Kolis to remove the t-shirt, and that he would have to leave if he did not. Kolis insisted he could wear the t-shirt to the membership meeting and refused to leave. Nelligan said he would have the police summoned if Kolis refused to leave and summoned George Harrigan, the local president, to make the call. Kolis then left the meeting and Harrigan was told not to call the police. Kolis returned to the union hall after having changed to a different shirt. The membership meeting convened with Kolis in attendance and proceeded without disruption.
Nelligan admits that he refused to allow Kolis to enter the meeting while wearing the Generation Next t-shirt but contends that his actions were proper under established policy of the local union. Nelligan told our investigator that campaign activity has always been prohibited during union meetings in the union hall. He stated that he had made "very clear to all candidates that we are not campaigning inside the meeting room or any other part of the building that is going to cause disruption in our ability to conduct UNION BUSINESS" (emphasis in original, written submission of Nelligan). Campaign activity outside the union hall presented a different matter to Nelligan. He had "no problem" with campaign activity of Generation Next in the Local Union 449 parking lot.
Martinez was not able to provide our investigator with any examples of Local Union 449 allowing or tolerating campaign activity inside the union hall during union meetings. He noted that t-shirts were distributed at the meeting on the night of February 14, but conceded that they were Teamster t-shirts and were not campaign shirts.[1]
Local Union 449 tallied ballots in its delegate election on February 24, 2011. The Generation Next slate lost the election.
Analysis
Several provisions of the Rules are pertinent to this protest. Regarding the freedom to exercise political rights, Article VII, Section 12(a) provides that:
All Union members retain the right to participate in campaign activities, including the right to run for office, to support or oppose any candidate, to aid or campaign for any candidate, and to make personal campaign contributions. This 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, regardless of Union policy, rule or practice. [Emphasis added].
Article VII, Section 12(d) provides that:
no restrictions shall be placed upon candidates' or members' preexisting rights to solicit support, distribute leaflets or literature, conduct campaign rallies, hold fund-raising events or engage in similar activities on . . . employer or Union premises. Such facilities and opportunities shall be made available to all candidates and members on a non-discriminatory basis.
Article XII of the Rules incorporates by reference provisions of the LMRDA, including 29 U.S.C. § 411(a)(2), which protects every member's right to free expression within the organization. The enumerated freedoms are subject to the caveat that unions may impose reasonable rules in the interest of maintaining order at meetings. Petramale v. Local No. 17 of LIUNA, 736 F.2d 13, 17 (2d Cir. 1984).
Finally, Article VII, Section 12(g) prohibits retaliation, or threat of retaliation, by any IBT member or subordinate body against any other member for exercising any right guaranteed by the Rules.
Wearing campaign paraphernalia, such as t-shirts, hats or buttons, is campaign activity and campaign communication. See Alvarado, 2010 ESD 28 at 3-4 (September 21, 2010). Under the Rules, the right to conduct campaign activity inside a local union meeting is limited. Our decisions have held "[w]hether a right exists to campaign inside a union hall depends on past practice." Leedham Slate, 2006 ESD 301 at 3 (July 5, 2006) (protest denied where union hall made available for campaign activity under pre-existing policy that allowed any local union member to reserve and use the hall without charge); see also Thornsberry, 2000 EAD 48 (November 17, 2000), aff'd as modified, 00 EAM 12 (December 12, 2000) (Rules violated by soliciting accreditation petitions inside union hall where there was no past practice that allowed campaign activity in the hall).[2] Thus, unless a member can show a pre-existing right to conduct campaign activity in a regular local union business meeting, the Rules make the meeting itself a zone where campaign activity does not occur unless that opportunity is afforded equally to other candidates competing for the position (or to those candidates' representatives).[3]
The undisputed evidence establishes that members of Local Union 449 do not have a pre-existing right to campaign inside the membership meeting. Nelligan stated that the union has never allowed such activity during general membership meetings in order to preclude activity that would cause disruption in conducting union business. The protestors offered no evidence to dispute that campaigning had never been allowed in a union meeting. Because Kolis had no pre-existing right to wear the campaign T-shirt to the membership meeting, the Rules did not protect that activity. Nelligan therefore did not engage in any prohibited retaliation when he precluded Kolis from the meeting on that basis. We note that Kolis was allowed to attend, and actually attended, the general membership meeting once he changed his shirt.
The Rules provide that if a union allows campaign activity in a union meeting, it must do so on a nondiscriminatory basis. See Rules, Article VII, Section 5(a). That principle is not implicated here because there is no allegation or evidence that candidates opposed to the Generation next slate were allowed an opportunity to campaign in a union meeting.
The Rules grant to members the right to campaign "outside a meeting hall before, during and after a Union meeting, regardless of Union policy, rule or practice." Article VII, Section 12(a). That right was respected here as Generation Next campaigned for that slate, without hindrance, in the Local Union 449 parking lot.
Although these protests were filed pre-election, we consider them in a post-election context pursuant to Article XIII, Section 2(f)(2). Finding no Rules violations, we determine that conduct complained of did not impermissibly affect the outcome of the election and therefore DENY the protests.
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 173
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
Jimmy Martinez
168 Spicer Creek Run
Grand Island, NY 14072
judo72@yahoo.com
James Kolis
335 Greene Street
Buffalo, NY 14206
jimkhuey@hotmail.com
Kenneth Nelligan, Secretary-Treasurer
Teamsters Local Union 449
2175 William Street
Buffalo, NY 14206
teamsters449@adelphia.net
Deborah Schaaf
1118 Coddington Road
Ithaca, NY 14850
debschaaf33@gmail.com
David F. Reilly
22 West Main Street
Wickford, RI 02852
dreilly@dfresq.com
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
[1] Martinez also alleged that he was "being discriminated against as an alternate delegate and because I am the first Hispanic to run for Union delegate at Local 449." No evidence was submitted to support this allegation and Nelligan also denied that any discrimination occurred. The only facts the protestors advanced as the basis for the Rules violation here were the undisputed ones of Nelligan's direction that Kolis could not wear the Generation Next t-shirt into the membership meeting.
[2] Taylor, 2011 ESD 131 (February 22, 2011) is consistent with this rule. We held in that protest that Taylor, appointed trustee of Local Union 82, did not violate the Rules when he wore a campaign pullover while in the union hall carrying out his regular job as Trustee. Taylor did not wear the pullover in a union meeting or in a meeting with third parties. His wearing of campaign clothing was analogous to other situations where the Rules protect members' right to express candidate support by wearing shirts or buttons at the workplace. See, e.g., Alvarado, 2010 ESD 28 (September 21, 2010).
[3] Consistent with this principle, the convention floor has been maintained as a politically neutral location except during the period of candidate nominations and acceptance speeches. See, e.g., Supplemental Election Supervisor Rules for the 27th International IBT Convention, § X (May 1, 2006); Supplemental Election Administrator Rules for the 2001 IBT Convention, § XI (May 7, 2001); Supplementary Election Officer Rules for the 1991 IBT Convention Floor Nominations, Nomination Voting, and Trustee Elections, § XII (June 12, 1991). Since 1991, however, the convention Supplemental Rules have included an exception that allows delegates to wear individual items of clothing or campaign paraphernalia (including t-shirts) while on the convention floor: that is a concession to the impracticality of a rule that would require more than 1,700 delegates to interrupt convention attendance in order to change their clothes.
