Protest Decisions

OFFICE OF THE ELECTION SUPERVISOR

for the

INTERNATIONAL BROTHERHOOD OF TEAMSTERS

IN RE: HOFFA-HALL 2011,                        )           Protest Decision 2011 ESD 228

                                                                        )           Issued: April 21, 2011

            Protestor.                                            )           OES Case No. P-220-031411-NA

                                                                        )

Hoffa-Hall 2011 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 the Gegare campaign impermissibly used union resources for a campaign purpose, in violation of the Rules. 

Election Supervisor representative Joe Childers investigated this protest.

Findings of Fact

On Saturday, March 12, 2011, the AFL-CIO and the IBT, in conjunction with many other unions, organized a large rally at the state capitol in Madison, Wisconsin to protest the "War on Workers," which many unions maintain has been waged by Wisconsin Governor Scott Walker.  The rally focused on legislation barring public employees from participating in collective bargaining.  According to estimates, 120,000 people attended the March 12 rally in Madison, including Teamsters from Wisconsin and Minnesota.  The Wisconsin state capitol had been the site of similar but smaller rallies for several weeks prior to the March 12 rally.  Fourteen Democratic Wisconsin state senators, who had left the state in an unsuccessful attempt to thwart passage of the anti-union legislation, returned for triumphant appearances and speeches at the March 12 rally.    

Approximately two and one-half weeks before the March 12 rally, Tony Cornelius, president of Local Union 662[1], and campaign treasurer for the Fred Gegare 2011 slate, asked Brad Slawson, Sr., secretary-treasurer of Local Union 120 in Blaine, Minnesota and IBT Central region vice president, to bring the tractor-trailer owned by Local Union 120 to Madison to demonstrate support for the labor activists and protestors who had gathered there to oppose Governor Walker's "War on Workers."  Slawson complied with the request by arranging delivery of the rig to Madison, and Cornelius, who also serves as secretary-treasurer of Joint Council 39, had the joint council's rig delivered from Green Bay to the capitol as well.   

According to Cornelius, the tractor-trailer belonging to Joint Council 39 is used for official union business only, both at Joint Council 39 events and by local unions affiliated with the joint council.  Local unions that use the rig must pay the fuel cost and driver expense.  Cornelius described the March 12 Madison rally as an official Joint Council 39 event.       

             Joint Council 39 promoted the March 12 rally, urging all Teamsters to come to the rally and gather on the capitol square "in front of the Joint Council 39 Tractor Trailer."[2]  The invitation stated "we will march in mass to and through the Capital after we gather."  In addition to the Joint Council 39 invitation, Cornelius told our investigator that all IBT local unions with members in Wisconsin promoted the March 12 rally, urging members to attend and participate.  For example, Local Union 200 in Milwaukee posted an invitation on its website, urging members to attend the rally. 

A retired Teamster, Glen "Cowboy" Weycker, typically drives the Joint Council 39 rig and generally parks it next to his home near Green Bay when it is not in use.  Weycker confirmed to our investigator that he drove the rig to Madison on February 22, 2011 at the direction of Cornelius, and he left it with Mark Herrman, a business agent for Local Union 695 there.  Weycker returned to Madison on March 12, the day of the large rally, and drove the tractor-trailer rig back to Green Bay at the conclusion of the rally, leaving Madison at approximately 6 p.m. for the 2½ to 3 hour trip that covered 140 miles.  For his services, Weycker is paid $15 per hour, plus expenses.  He receives no additional compensation.     

Mark Herrman obtained permits from the City of Madison allowing the two Teamster rigs to park near the capitol.  During the first two weeks the two tractor-trailers were in Madison, they were moved at least twice because of claims they were interfering with local businesses.  Prior to March 12, Herrman purchased two padlocks that he used to lock the two doors on the Joint Council 39 trailer.  According to Wayne Schultz, secretary-treasurer of Local Union 695, several persons had access to the trailer key at various times prior to March 12, depending on who could be present on any given day.  Dave "Whitey" Selck, a retired member of Local Union 695 living in Janesville, was given a key to the padlocks.  Selck told our investigator that the trailer was locked because it contained a large number of protest signs and because it was beginning to be used by homeless persons seeking shelter at night.  Selck was present in Madison for the anti-Walker rallies nearly continuously during the multi-week campaign. 

Local Union 695's Schultz was the first Teamster on the scene at the Joint Council 39 rig on March 12, arriving around 7:00 a.m.; according to him, the trailer was locked when he arrived.  As he did not have a key to the padlocks, he left protest signs he was delivering for the rally in his car until later that morning. On the morning of March 12, the two rigs were parked one in front of the other on a street immediately beside the capitol, with Joint Council 39's rig in back. 

Sometime between 9 and 10 a.m. that day, Selck unlocked and opened the two large rear doors of the Joint Council 39 trailer.  They remained open until late into the afternoon, and volunteers distributed IBT-supplied protest signs from the back of the trailer; they also sold hats and t-shirts with the names and logos of their local unions from that location. 

Cornelius told our investigator that he arrived at the rally at about 11:30 a.m.  When he worked his way to the back of the Joint Council 39 tractor-trailer where protest signs were being distributed, he noticed a banner hanging from the top of the back of the open trailer.  The banner, constructed of blue reinforced fabric approximately five feet wide by three feet high, displayed the Teamsters horses-and-wheel logo in gold on the left one-third.  The right two-thirds read, in three lines, "Vote 2011," "Fred Gegare," "for Teamsters General President" in white and red lettering.  Beneath this message was the url for Gegare's website, www.fredgegare2011.com, in smaller white letters.  Photos of the banner were obtained from the protestor, the Teamsters Local Union 344 Facebook page, and the Teamsters Local Union 200.

Cornelius told our investigator that he did not know who hung the banner on the Joint Council 39 trailer, that he had never seen it before, and that the campaign had not paid for it.  He stated that even though he had seen the banner when he arrived, he did not think about it being a potential Rules violation until sometime later when Scott Soldon, counsel for the Gegare campaign and who was also present, told him that the banner was "going to be a problem" and should be taken down.  According to Cornelius, this conversation took place at approximately 12:50 p.m.  He remembered the time because he and Gegare were supposed to be in a meeting with representatives of the AFL-CIO at a nearby hotel at 1:30 p.m.  Immediately after Soldon told him the banner should come down, Cornelius said he approached the four men standing in the back of the truck[3] and told one that the banner should be taken down.  He left the area before confirming that the banner indeed was removed from the trailer. 

Soldon confirmed to our investigator that he advised Cornelius that the banner could be a problem and should be taken down.  He stated that this conversation occurred between 1:00 p.m. and 1:30 p.m. and that he observed Cornelius immediately go to the back of the trailer and say something to one of the men there.  He did not hear what was said, and he left the rally shortly after that and before the banner was removed.  He confirmed that Cornelius and Gegare also left the area before the banner was removed so they could attend the AFL-CIO meeting and the rally's speeches, which followed. 

Gegare appears in two photographs obtained by our investigator.  In the first, which was posted on Local Union 200's website, he appears with three other persons. The banner in question is not visible.  Tom Millonzi, secretary-treasurer of Local Union 200 and an elected convention delegate, told our investigator that he took all of the photographs of the rally that were posted on the website, including the one of Gegare.  Soldon appears in another of Millonzi photographs.  Four of the photographs posted on the Local Union 200 website showed the Gegare campaign banner hanging from the back of the trailer.  In the second photograph depicting Gegare, which was supplied by the protestor, he is seen immediately behind and facing in the direction of the trailer opening, with the banner clearly in view.    

Gegare told our investigator that he did not know who hung the banner on the back of the trailer, that it was up when he arrived there "just after lunch," and that he had never seen it before and had no idea where it came from.  Even though he noticed the banner, Gegare did not inquire about it at or after the rally.  He said he was focused on the people wanting to shake his hand and that the area was "jammed with people."  He said the men the photos showed in the back of the trailer were Teamsters, but, like Cornelius, he could not identify them.  Gegare explained that during the period leading up to the meeting with AFL-CIO representatives and afterward, he was also on his cell phone to his daughter, trying to help her navigate to the rally.  His daughter, accompanied by a friend, was lost and did not arrive at the rally in time to appear on stage with Gegare, as he had hoped.  Gegare left the rally at approximately 5:45 p.m. to return to Green Bay.       

Cornelius and Gegare attended the 1:30 p.m. meeting with the AFL-CIO representatives and immediately thereafter moved to a different location on the capitol grounds where union dignitaries, including Gegare, were scheduled to give speeches.  However, because all 14 returning Wisconsin state senators were permitted to speak, Gegare did not give his speech at the rally. 

A photograph depicts at least four members of Milwaukee-based Local Union 344 in the back of the Joint Council 39 trailer, immediately below the Gegare campaign banner.  These four included Vinnie Lepak, local union business agent, and John Walters, Dave Krause, and Dan Vassar, stewards for the local union.  In addition, Richard Schmidt, Local Union 344's president, was present at the same location, but he does not appear in any photograph provided to our investigator.  These men distributed signs proclaiming Teamster support for the workers; they also sold Local Union 344 hats and t-shirts.  According to Patrick Tappa, principal officer of Local Union 344, John Walters was the first member of the local union to arrive at the rally.  He confirmed to Tappa that, when he arrived at about 10 a.m., the Gegare campaign banner was already hanging from the back of the trailer.  This fact was confirmed by Wayne Schultz, who told our investigator that even though he arrived at approximately 7:00 a.m., he first observed the banner in "late morning."  Dave "Whitey" Selck told our investigator that when he arrived between 9:00 a.m. and 10:00 a.m. and opened the back of the trailer with his key, there was a "scramble" by persons unknown to him who placed the Gegare campaign banner above the opening of the trailer.  Selck said he remembered that one of the persons had to be "hoisted" up to be able to hang the banner.  Selck stated that he believed the persons responsible for hanging the Gegare campaign banner were members of one or more Wisconsin Teamsters local unions, but he did not know their names.[4]

Local Union 344's Schmidt told our investigator that he saw and spoke with Gegare at the back of the trailer between 11 a.m. and noon; however, they did not discuss the campaign banner.   Selck also saw Gegare at the trailer at the same time.

Dave Krause, Local Union 344 steward, said he arrived at the rally at approximately 1:30 p.m. with his family, but did not come over to the trailer until approximately 2:30 p.m.  The Gegare campaign banner was present when he arrived and was still hanging when he left at approximately 3:30 p.m.  Neither Tappa, Schmidt, Walter, nor Krause from Local Union 344, nor Schultz, Herrman, or Selck from Local Union 695 were able to state who hung the banner from the back of the trailer.[5]  Dan Vassar arrived at the trailer at approximately 3:30 p.m., and left at approximately 5:00 p.m., returning to his home in Racine.  At the time he left the trailer, the back door was still open and the campaign banner was still hanging. 

Business agent Lepak of Local Union 344 arrived at the trailer at approximately 11 a.m. and remained there until the speeches were over and he saw people leaving the rally, sometime around 5 p.m., at which time the Gegare campaign banner was still hanging.  Lepak recalled the banner "being in [his] way," and he hit his head on it while he was working from the back of the trailer.  He remembered seeing Gegare in the crowd at the rear of the trailer and recalled shaking his hand.  However, Lepak denied that he had a conversation with Gegare or anyone else about the banner, about who had hung the banner, or about why it was there. 

Cornelius told our investigator that when he returned to the rig after 5 p.m., following the conclusion of the speeches, the trailer was closed and locked and the banner was not visible.  Based on the information supplied by Vassar and Lepak, the banner remained on the Joint Council 39 trailer until at least 5 p.m., even though Cornelius said he told the men standing in the back of the trailer to take it down around 1 p.m.  Lepak stated that he saw Cornelius once, late in the day and away from the trailer.  It is clear that Cornelius' instruction to remove the banner was not followed and that no one from the Gegare campaign, neither Gegare, Cornelius, nor Soldon, remained to verify that the banner had been removed. 

Millonzi of Milwaukee's Local Union 200 and a Trustee of Joint Council 39, told our investigator that he was at the March 12 rally for about five hours and, as noted, he took numerous photographs of the rally, including several of Gegare.  Many of the photographs he took were posted on the Local Union 200 website on Monday, March 14.  Two days later, Millonzi said he realized when reviewing the website that four of the photographs, which depicted the Gegare campaign banner, should not be posted on a local union website.  He told Mark Hintz, the local union's webmaster, to remove them.  The photographs were taken down on Thursday morning, March 17, 2011.  According to Hintz, the photographs were never printed or distributed to anyone in hard copy, although they could be downloaded directly from the website.  Hintz was unable to provide an estimate of the number of screen views on the website or on the site's photo gallery between March 14 and 17. 

Likewise, Richard Schmidt, Local Union 344's president, told our investigator that he was present at the rally for approximately 5½ to 6 hours and took the 53 photographs that he posted to the Local Union 344 Facebook page at 9:51 a.m. on Sunday, March 13.  On Wednesday, March 16, all 53 photographs still appeared on the page, including five depicting the Gegare campaign banner.  On March 18, when our investigator again viewed the page, those five photographs had been removed, leaving 48 photographs depicting the events of March 12, none of which depicted the Gegare campaign banner.  

Analysis

Article XI, Section 1(b)(3) prohibits a labor organization from contributing "anything of value, where the purpose, object or foreseeable effect of the contribution is to influence, positively or negatively, the election of a candidate."  The same provision bars a candidate from accepting or using any such contribution.

The use of the joint council trailer to display the Gegare campaign banner violated this provision.

Several facts aggravate the violation.  First, evidence demonstrated that the IBT, Joint Council 39, and Wisconsin local unions promoted the March 12 rally to their members and encouraged them to turn out.  Those members were directed to the Teamster rigs as a staging area, and specifically to the back of the Joint Council 39 trailer where protest signs were distributed.  We conclude that the Gegare campaign banner was strategically placed for maximum exposure to an audience of activist union members.  The crowd included Teamsters elected as delegates to the 28^th International Convention; Teamsters who may well communicate with the convention delegates elected from their local unions, and certainly included Teamsters who will have a vote for the office of General President, assuming more than one candidate is nominated for office.  The banner was displayed at the back of the trailer in order to promote Gegare's campaign to this audience.  By witness accounts and by published media reports, the March 12 rally drew approximately 120,000 people.  Anecdotally, Gegare himself said that the rear of the trailer area was "jammed with people."  Based on this evidence, the banner had broad exposure.

Second, evidence from several witnesses demonstrated that the banner was displayed from the back of the trailer for at least seven hours on March 12.  Although Cornelius said he instructed the unknown men in the back of the trailer to take it down around 1 p.m., it remained on display for four additional hours when traffic around the back of the truck continued to be high.

Third, had the Gegare campaign banner been hung from a tree or on stanchions adjacent to the rig, we would find no Rules violation on the facts presented here.  But suspending it from the highly visible and eye-catching trailer not only used a union asset, it conveyed a message that Joint Council 39 as an entity supported or endorsed the Gegare candidacy.

Fourth, the Gegare campaign made only a perfunctory effort to correct an obvious Rules violation.  The campaign's counsel saw the violation and directed that the banner be removed;  no action was taken on that advice (the banner remained on display until the demonstration ended) and neither counsel nor the person he instructed did anything else to bring about compliance.  Gegare himself saw the banner and gave it no thought at all, because he was immersed in the demonstration. 

Finally, the audience exposed to the violation was not only those persons who attended the March 12 rally.  It included persons who viewed the photos depicting the banner that appeared on the website of Local Union 200 and the Facebook page of Local Union 344.  The photos remained there, respectively, for three and five days.  The use of a union publication to support a candidacy violates the Rules.  Halstead, 2010 ESD 8 (July 26, 2010) (publication in local union newsletter and on local union website of photos of persons wearing campaign stickers violated the Rules).

While those facts aggravate the violation, we note two facts that tend to reduce its impact.  First, although all local unions in Joint Council 39, the statewide joint council for Wisconsin, promoted the March 12 rally and encouraged their members to attend, none had delegate elections pending at the time of the rally[6].  Accordingly, the Gegare campaign banner did not influence those elections.  Second, nominations for International office are due to occur in June 2011, and balloting for the International officer election is scheduled for October and November 2011.  In the coming months, delegates and members will receive information about the election from candidates and other sources, and they will have a wide range of materials to consider pertaining to their electoral choices.  Considering that diverse mix of information and the temporal distance between the Madison demonstration and the election events, the improper use of a readily identifiable joint council asset to promote the Gegare candidacy is unlikely to have any measurable impact on the election. 

For the foregoing reasons, we GRANT the protest.  Specifically, we find that Joint Council 39 and Local Unions 200 and 344 violated the Rules by providing union assistance to the Gegare campaign and that the Gegare campaign violated the Rules by accepting it.

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 direct Joint Council 39 and Local Unions 200 and 344 to cease and desist from providing union support to any candidate.  We also direct the Gegare campaign and its supporters to cease and desist from using and accepting union resources to campaign.

We further direct the Gegare campaign to pay Joint Council 39 the sum of $1,000, which we conclude is a reasonable price for the day-long exposure the campaign received from use of the rear of the joint council's trailer to display the campaign banner to the demonstration's union-member audience.  We do not assess the Gegare campaign for the round-trip driver and fuel cost for transporting the rig to Madison from Green Bay, as we find that the rig was there for a legitimate union purpose at union expense.  We also do not assess the Gegare campaign for any cost associated with the posting of photos of the campaign banner on Local Union 200's website or Local Union 344's Facebook page, as the totality of the remedy we order here addresses those postings.

We direct the Local Unions 43, 200, 344, 662, and 695 to place on the literature tables in their union halls[7] the notice attached to this decision and to maintain it there through May 31, 2011 in sufficient quantities so that it will be available to union members using the halls.  We further direct Local Union 200 to post the notice on the uppermost portion of the photo gallery page of its website, immediately beneath the masthead, and maintain it there for the same period.  We further direct Local Union 344 to post the notice on the wall of its Facebook page for the same period[8].  The web postings we direct Local Unions 200 and 344 to make here shall be done so that the hyperlinks in the notice are active.

Compliance with all remedies imposed here shall be completed within two days of the date this decision issues.  Compliance affidavits from each entity required to complete a remedy ordered by this decision shall be filed with OES within two days of the date compliance has been commenced.

A decision of the Election Supervisor takes immediate effect unless stayed.  Lopez, 96 EAM 73 (February 13, 1996). 

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, NY  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 228

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

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

Teamsters Local Union 43

1624 Yout Street

Racine, WI 53404

teamsterslocal43@sbcglobal.net

Teamsters Local Union 200

6200 W. Bluemound Road

Milwaukee, WI 53213

info@teamsterslocal200.com

Teamsters Local Union 344

10020 W. Greenfield Ave.

Milwaukee, WI 53214

ptappa@local344.org

Teamsters Local Union 662

1546 Main Street

Green Bay, WI 54302

teamsters662gb@new.rr.com

Teamsters Local Union 695

1314 N. Stoughton

Madison, WI 53714

teamsters695@charterinternet.com

Joe F. Childers

Getty & Childers, PLLC

250 West Main Street, Suite 1900

Lexington, KY 40507

childerslaw@yahoo.com

William C. Broberg
1108 Fincastle Road
Lexington, KY 40502-1838
wcbroberg@aol.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