IN RE: ERIC ROBERTSON, Protestor.
Protest Decision 2011 ESD 200
Issued: April 4, 2011
OES Case No. P-209-030911-SO & P-218-031411-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 Robert Wood failed to comply with a decision of the Election Supervisor.
Robertson also filed a post-election protest requesting that Wood and another member of his slate, Larry McDonald, be disqualified because of Wood's failure to comply with the Election Supervisor's decision.
Election Supervisor representative Dolores Hall investigated these protests.
Findings of Fact
Robert Wood ran for delegate on the Restore the Power slate in Local Union 728's delegates and alternate delegates election. In Robertson, 2011 ESD 146 (March 2, 2011), we found that Wood violated the Rules by distributing a campaign flyer printed on a photocopy of local union stationery. Noting that the Rules expressly prohibit use of union stationery in campaigning, we held that the prohibition extends to photocopies of stationery as well. We said:
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.
We found that Wood distributed 50 copies of the flyer at the Atlanta and Pleasantdale hubs of UPS. As remedy for the Rules violation, we ordered the following:
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.
Robertson's protests here alleged that Wood did not comply with the remedy in all respects. Thus, Robertson alleged that Wood altered the remedial notice that was distributed and, further, did not timely distribute it at UPS Atlanta.
Compliance investigation showed the following. On March 4, two days after we issued the decision in Robertson, Wood posted the remedial notice on all worksite bulletin boards at UPS Pleasantdale. He also distributed the flyers in the parking lot there before the start of the morning shift, as required. However, before posting the notice on the bulletin boards or distributing them in the parking lot, he highlighted in yellow the following sentence: "Local Union 728 did not and does not endorse the Restore the Power slate or any other candidate or slate in the local union's delegates and alternate delegates election." Wood told our investigator that he highlighted that sentence because he wanted to draw members' attention to it.
Wood arranged with Mark Brewster and Mike Hesters, both alternate delegate candidates on his slate, to post and distribute the notices at UPS Atlanta. Brewster is employed as a mechanic there, Hesters as a package car driver. Wood delivered the notices to the facility. Hesters posted them on the bulletin board there, and Brewster was to distribute them before the start of the March 4 shift.
However, Brewster suffered a death in his family and was not at work on March 4. When Hesters completed the bulletin board posting that morning and learned that Brewster's family situation prevented him from coming to work, it was too late for Hesters to distribute the flyers, as he "had to get on the road" and perform his route. Brewster distributed the notices on Monday morning, March 7, when he returned to work following his family member's passing.
Ballots were counted on March 11. Candidates on the Members First slate won the first eight of the nine delegate seats at issue and all three alternate delegate positions. Larry McDonald, a member of Wood's slate, won the remaining delegate seat. He tallied three votes more than Wood and nine votes more than the final member of the Members First slate.
Analysis
The Rules grant the Election Supervisor authority to determine whether the Rules have been violated and, if a violation is found, to "take whatever remedial action is appropriate." Article XIII, Section 4. Among the enumerated remedies available to the Election Supervisor is authority to require immediate compliance with his decisions (Article XIII, Section 4(w)), and it is settled that a decision of the Election Supervisor takes immediate effect unless stayed. Lopez, 96 EAM 73 (February 13, 1996).
Notices are issued to inform members of the Rules' requirements and to advise when they have been violated. Altering, defacing and, when posted on bulletin boards, covering up or tearing a remedial notice violates the Rules.
We note, however, in this case that the sentence Wood highlighted remained clearly visible, and the highlighting had the effect of drawing readers' attention to the fact that Local Union 728 did not endorse the Restore the Power slate in the election, which was a holding of our decision in Robertson. We find that the highlighting did detract or undermine the remedial effect of the notice. We acknowledge but do not find that the highlighting may have enhanced the notice's remedial impact.
We are compelled nonetheless to state that any person who alters, highlights, defaces, covers up or tears a remedial notice of the Election Supervisor does so at the peril of violating the Rules and incurring a severe remedy. We make no such finding with respect to Wood in this case, for the reasons stated.
Although Wood and Hesters posted the remedial notice at both facilities timely and distributed copies of it timely at UPS Pleasantdale, we find that they or their supporters failed to distribute the notice to members at UPS Atlanta no later than before the start of the morning shift on March 4. Under the circumstances presented here, we excuse this failure, finding it was solely the result of Brewster's inability to perform because of a death in his family. Hesters learned too late of Brewster's absence to distribute the notice in his place to the arriving day shift that morning.
On the facts found here, we conclude that Wood and Restore the Power substantially complied with the remedial order in Robertson.
Protestor Robertson also alleged in his post-election protest that the remedy in Robertson was insufficient to correct the Rules violation we found there. He now seeks to have Wood and McDonald disqualified[1]. We reject his request. Our decision in that case, including the remedy we ordered, became final and binding with respect to the violation we found when no timely appeal of it was taken. Robertson cannot revisit the adequacy of the remedy now through the vehicle of a post-election protest.
Accordingly, we DENY these 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 200
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
Randall Brown, President
Teamsters Local Union 728
2540 Lakewood Avenue, S.W.
Atlanta, GA 30315
jrichards@teamsterslocal728.org
Dolores Hall
1000 Belmont Place
Metairie, LA 70001
hall1000@cox.net
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
[1] Disqualifying Wood would have no effect, as he finished tenth in an election for nine delegate seats. Disqualifying McDonald would be an extreme remedy under our precedents, given the lack of evidence that he committed or participated in any Rules violation.
