Protest Decisions

OFFICE OF THE ELECTION SUPERVISOR

for the

INTERNATIONAL BROTHERHOOD OF TEAMSTERS

IN RE: HOFFA-HALL 2011,                       )           Protest Decision 2011 ESD 231

                                                                        )           Issued: April 22, 2011

             Protestor.                                           )           OES Case Nos. P-179-022811-NA               

____________________________________)

            Hoffa-Hall 2011 filed a pre-election protest pursuant to Article XIII, Section 2 of the Rules for the 2010-2011 IBT International Union Delegate and Officer Election (“Rules”).  The protest alleged that candidates on and supporters of the Gegare slate attended a meeting of Joint Council 39 solely to hold a slate meeting at union expense, and none of their campaign expenses for this meeting were reported on Campaign Contribution and Expense Reports for Period 3.

            Election Supervisor representative Deborah Schaaf investigated this protest.

Findings of Fact

             Joint Council 39 has jurisdiction over Teamsters local unions in Wisconsin.  It held its quarterly meeting on January 26, 27 and 28, 2011 at the Wyndham Milwaukee Hotel.  After preparatory and planning sessions on the morning of Wednesday, January 26, 2011, the Joint Council meeting schedule showed the following:

Each constituent local union in the Joint Council 39 hosts the quarterly meeting in turn, and, as host, pays the expenses attributable to it.  The January 2011 meeting was jointly hosted by Milwaukee-based Local Unions 200 and 344.

            The minutes for the January meeting showed that many members of the Gegare slate attended as invited guests, including Brad Slawson, Sr., Robert Ryder, Jerry Conner, Henry Perry and Fred Zuckerman.  Slawson, Sr. is principal officer of Local Union 120 in Blaine, Minnesota, IBT Central region vice president, and trustee of the NMFATA fund.  Ryder is principal officer of Local Union 463 in Fort Washington, Pennsylvania, East region dairy director, and chairman of the bakery and dairy pension fund.  Conner is principal officer of Local Union 279 in Decatur, Illinois.  Perry is International Trustee and a member of Local Union 667 in Memphis, Tennessee.  Zuckerman is principal officer of Local Union 89 in Louisville, Kentucky and IBT carhaul director.

The minutes showed other invited guests attended, including Brad Slawson, Jr., and Rhys Ledger.  Slawson Jr. is president of Local Union 120.  Ledger is political director for Local Union 120. 

The protest alleged that the joint council meeting was a pretext for a slate meeting, and that the travel, lodging and meals expenses that should have been reported on Period 3 CCERs as campaign expenses were instead absorbed by various IBT affiliates.

            The Gegare slate members and supporters responded to this protest by denying the allegations. 

            Gegare is a member of Local Union 662 in Green Bay and is president of Joint Council 39.  He presided at the January joint council meeting, and his expenses for the meeting were paid by Local Union 662. 

            Slawson, Sr. attended the joint council meeting in his capacity as IBT Vice President for the Central region, which includes Wisconsin.  He spoke at the meeting about the current state of IBT Central States Pension Fund, IBT business affairs and other matters.  Slawson has regularly attended Joint Council 39 quarterly meetings in the past.  His expenses were paid by the IBT.

            Conner had previously attended Joint Council 39 quarterly meetings at least twice before the January meeting.  He stated he was invited to the January meeting because of his experience with right-to-work and workmen’s compensation legislation in the Illinois legislature.[1]  Conner explained that “adjoining and neighboring states face similar issues and collaboration is encouraged and encouraging.”  He said he had “in-depth” discussions with a number of delegates to the meeting, including Joint Council 39 construction director Mark Herrmann, about a range of issues that included the Joint Council 39 procedure of reviewing and approving contracts prior to local union ratification in order to uphold contract standards throughout the state.  Local Union 279 paid Conner’s expenses.

            Ryder said he was invited to the Joint Council 39 quarterly meetings to speak about ongoing problems with the Dairy Farmers of America that affect a number of IBT local unions in Wisconsin, Texas, Kansas, New York and his home state of Pennsylvania.  The Gegare slate statement pointed out that the DFA problem was significant enough to cause the IBT to discuss DFA problems in telephone conferences with affected local unions and to dispatch an International representative to coordinate activity with a Kansas City local union.  Ryder described a discussion about problems in the dairy industry with Tony Cornelius, Central region dairy director and International representative, and with a number of business agents during the meetings.  Ryder’s expenses were paid by Local Union 463.

            Perry was invited to the quarterly meeting to speak about current economic matters affecting the IBT.  Perry did not make a formal presentation to the delegates because of the emphasis placed on preparations to meet the legislative challenges facing organized labor in Wisconsin.  However, he and a number of attendees discussed right-to-work laws, a subject with which he has expertise because of his history of labor activism in Tennessee, a right-to-work state.  Perry’s expenses were paid by the IBT.

Zuckerman was invited to attend to speak about current conditions in carhaul.  He said he spoke at length to the joint council’s carhaul chairman about matters affecting Wisconsin carhaul member, including the closing of the General Motors-Janesville plant and its possible re-opening by Isuzu.  Zuckerman also spent time with Central region construction director Herrmann on pension issues affecting the industry.  Zuckerman attended every meeting but was unable to address the assembled delegates because of time constraints.  Zuckerman also said he attended the Joint Council 39 meeting in part to gain insight into the unique approaches the joint council takes to encourage attendance and participation by its member locals.  Zuckerman’s expenses were paid for Local Union 89.

            The protest also questioned the attendance of Slawson, Jr., and Ledger.  Both are actively engaged in political matters facing Local Union 120 in Minnesota and were invited to the quarterly meeting to assist in the development of defensive strategies regarding the anti-labor legislation expected to be introduced in the Wisconsin legislature.  Both met with Dan McGowan, Joint Council 39 legislative director, to discuss, devise and implement a defensive strategy that ultimately led to the development, in conjunction with IBT legislative director Daniel Reilly, of materials and activities designed to educate the rank-and-file about the threat of anti-union legislation.  The travel and other expenses of Slawson Jr., and Ledger were paid by Local Union 120.  

            Zuckerman and Ryder denied that a Gegare slate meeting took place at the Joint Council 39 event, although Zuckerman acknowledged that slate members had “an unscheduled, informal discussion at one point, but it was not focused on any particular campaign issues or agenda items.”            Ryder told our investigator, “Sure, we talked about the campaign some – we always talk about campaigning whenever we see each other – but that wasn’t what we were doing there, and it was only when we ran into each other.”

These comments were consistent with the slate’s formal response to the protest, which acknowledged an impromptu gathering of some, but not all, of the Gegare slate candidates in a common area of the hotel on Wednesday afternoon, after the preliminary meetings had concluded.  According to the Gegare slate statement, a broad range of matters, some of which were campaign-related, were discussed.  The conversations were described as “random, periodic and transitory” and the composition of the group was said to have changed as conference attendees entered and exited the common area.  In addition, the slate stated that no fundraisers were held at the Joint Council 39 January quarterly meetings, nor did anyone solicit contributions for campaign support. 

Analysis

Article VII, Section 12(b) of the Rules prohibits use of union funds to assist in campaigning.  Article XI, Section 1(b)(3) bars a union from contributing to a candidate, “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)(7) prohibits a member from campaigning for “him/herself or for any other candidate during time that is paid for by the Union or by any employer.  However, campaigning incidental to work or regular Union business... is not violative of the campaign contribution rules.”

            The Rules define the term “campaign contribution” as “any direct or indirect contribution of money or other thing of value where the purpose, object or foreseeable effect of that contribution is to influence, positively or negatively, the election of a candidate for Convention delegate or alternate delegate or International Officer position.”

            Here, union funds were used to pay the travel, hotel and meal expenses of all the individuals on the Gegare slate who attended the Joint Council 39 January quarterly meetings. The first inquiry is whether the trip was undertaken for legitimate union purposes; the second is whether any campaigning that occurred was incidental to legitimate union business.

            The Gegare slate has provided sufficient evidence that the attendance of its members and supporters at the Joint Council 39 January quarterly meetings was to conduct regular union business.  Their individual experience and position as IBT and/or local union leaders was relevant to the agenda, and their participation during the meetings and with other attendees constituted the conduct of legitimate union business.

Hoffa-Hall 2011 offered no evidence to contradict these facts or otherwise substantiate its allegation that attendance was a pretext for campaign activity.  While the protestor suggested that it was unusual for IBT officials or union members from outside Wisconsin to attend the joint council meeting, the Gegare slate presented adequate evidence that the individuals who attended were actually engaged in helping to develop strategies to address pressing and significant legislative problems facing Wisconsin Teamsters, and that these strategies were relevant to the same issues as they were arising in other Central region states.  Local unions and joint councils in different states often deal with similar issues, and we find it legitimate for the union to encourage dialogue on those issues.  Absent specific allegations of misconduct, the Election Supervisor will not interfere with such collaborative proceedings.  Accordingly, we find that the joint council meeting attendance by all persons the protest identified was to conduct legitimate union business.

            Turning to our second inquiry, the exception to the prohibition on campaigning during work hours for “[c]ampaigning incidental to work” recognizes that some activity that literally fits the definition of “campaign activity” inevitably occurs in members’ everyday interactions on the job.  Rosas, 2001 EAD 200 (February 27, 2001) (“The Rules recognize that as employees engage in normal personal interaction while they work, campaigning should not be excluded from what they may talk about.”).  In assessing whether campaign activity is incidental, we look to whether the activity interfered with employees performing their regular work or caused employees to deviate from prescribed duties.  Pinder, 2006 ESD 133 (March 7, 2006) (campaigning found to be incidental where UPS driver distributed flyers to 2 others while loading truck and encouraged them to vote; conduct did not interfere with duties, and all drivers left terminal on time.)  We also consider the duration of the campaigning incident; brief or transient matters are more likely to be held incidental to work.  Pinder (less than 5 minutes); Thompson, 2001 ESD 332 (April 30, 2001), aff’d, 01 EAM 73 (May 24, 2001) (one-on-one campaign exchange that took place while both employees worked together to set a trailer hitch held incidental); Cooper, 2005 ESD 8 (September 2, 2005) (exchange lasting 10 seconds found to be incidental); and Gibbs, 2010 ESD 54 (December 9, 2010) (asking for and receiving a campaign postcard held incidental campaigning where exchange took a few seconds). 

            Here, the campaigning ascribed to members of the Gegare slate at the Joint Council 39 meeting was consistent with “incidental” campaigning, and did not violate the Rules. It was impromptu, brief and informal.  Not all Gegare candidates were present.  It did not interfere with the Joint Council 39 agenda or meetings, the participation of slate members in the agenda, their interaction with other attendees, or the ability of other union members to participate in the meetings.  The campaigning did not take place in a distinct time or place.

            Past decisions have held that local unions did not violate the Rules by paying the travel expenses associated with their members’ attendance at meetings where some campaigning took place. See, e.g., Bunstine, 2006 ESD 46 (January 14, 2006).  In Taylor, 2000 EAD 75 (December 29, 2000), aff’d 01 EAM 16 (February 8, 2001), Election Administrator Wertheimer found that a local union properly paid lost time and travel expenses for its members who attended the TDU convention, observing that “[e]xpenditure of union funds to pay the travel, hotel and meal expenses of a trip undertaken for legitimate union purposes is permitted under the Rules, regardless of incidental campaigning at such an event.”

            Each member of the Gegare Slate who attended the Joint Council 39 quarterly meeting was there for a legitimate union purpose, and payment of his expenses by the IBT or a local union did not constitute an impermissible campaign contribution.  Unrelated campaign discussions were incidental and not subject to campaign contribution and disclosure requirements. 

Accordingly, we DENY this protest.

            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 231

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

Deborah Schaaf

1118 Coddington Road

Ithaca, NY 14850

debschaaf33@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