Protest Decisions

            

Fred Zuckerman, member and principal officer of Local Union 89 and candidate for IBT Central region vice president on the Gegare-Sheard slate, 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 Hoffa-Buhle campaign unlawfully campaigned at the UPS grievance panel hearings in Traverse City, Michigan on August 3, 2011.

            Election Supervisor representative Joe Childers investigated this protest.

Findings of Fact

            Brian Buhle, member and officer of Local Union 135 in Indianapolis, Indiana, is a nominated candidate for IBT Central region vice president on the Hoffa-Hall 2011 slate.  The protest alleged that Jerry Hayden, a business agent from Buhle’s local union, improperly campaigned on behalf of Hoffa-Buhle at the UPS panel hearings by wearing a polo shirt bearing the insignia for “Hoffa-Buhle” to a meeting.[1] 

            Hayden conceded to our investigator that he wore a pullover shirt bearing the Hoffa-Buhle emblem to two joint labor-management grievance sessions on August 3.  Hayden was not presenting any cases at the grievance panel meeting and said that he traveled to Traverse City to support and assist other business agents who presented cases.  Local Union 135 paid Hayden’s expenses to attend the grievance panels.  He wore the Hoffa-Buhle shirt while attending two  sessions on August 3.  The sessions he attended started at 9 a.m. and concluded at noon.  Hayden said he did not attend any meetings in the afternoon of August 3 or on any other days during the three day trip. 

            By contract, the UPS grievance hearings are conducted before panels comprised of equal numbers of union and management members.  For each grievance heard at grievance meetings, union and management representatives present evidence and argument to the assigned panel, which then decides the grievance.  A typical panel will hear multiple grievances involving multiple UPS locations, local unions and grievants each day it sits. 

           

Analysis

            Campaign emblems cannot be worn in labor-management grievance meetings.  That has long been clear under the Rules.  See Sullivan, 2011 ESD 268 (May 28, 2011) (wearing delegate election campaign button into labor-management meeting violates Rules); Stockton, 2001 EAD 292 (March 31, 2001) (member displays of campaign emblems prohibited while dealing with any third party as a representative of the union).  In the past, the IBT itself has advised that officers and employees “may not wear [campaign shirts and other campaign paraphernalia] when conducting business with employers or other persons or entities who are not union members.”  Advisory of IBT General Counsel Patrick Szymanski, quoted in Bennett, 2006 ESD 80 (February 14, 2006) (directive to remove campaign button before entering labor management meeting did not violate Rules).  The rationale for the prohibition has been restated in several protest rulings, most recently in Sullivan:

[A]n unrelated third party might assume that the union entity was supporting or opposing a particular candidate or group of candidates if a union officer, business agent or employee were permitted to wear campaign emblems during the time he/she was representing the union in relations with unrelated third parties.  Accordingly, while union officers, business agents, and employees may wear campaign emblems during working hours and while engaged in their regular union business, they may not wear such emblems when representing the union before or with an unrelated third party. 

2011 ESD 268 at 3.  Since Stockton, 2001 EAD 292, it has been clear that this prohibition applies to members, not just to “union officers, business agents, and employees.”

            Grievance hearing panels involve meetings with employer representatives and the Rules prohibit display of campaign paraphernalia and campaign material in that setting.  Zuckerman & Gegare, 2010 ESD 5 (June 28, 2010), appeal withdrawn, 10 EAM 2 (July 7, 2010) (distribution of campaign flyers in grievance hearing rooms violates Rules).  Grievances should be determined on the facts and any suggestion, whether to members or to employers, that “the outcome of a given case might be influenced by internal union political factors or anything other than the merit of the case does the process a considerable disservice.”  Zuckerman & Gegare, 2010 ESD 5 at 6. 

            Hayden, who provided support and assistance to business agents presenting cases at the UPS grievance panels in Traverse City violated the Rules by wearing his campaign shirt during his attendance at panel sessions.  The display of campaign paraphernalia is clearly prohibited in the grievance panel setting.[2] 

            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. 

Although there is no evidence that Hoffa-Hall 2011 knew of Hayden’s conduct, it did receive the benefit of having a message of support for a slate member displayed in the setting of the grievance panels.  “The Rules impose strict liability on a candidate who receives such an improper benefit.”  Aloise, 2010 ESD 22 at 15 (August 27, 2010), aff’d, 10 EAM 6 (September 3, 2010); Rules, Article XI, Section 1(b)(15).  

We order Hayden to cease and desist from impermissible campaigning by wearing campaign emblems, whether as buttons, pins, vests, or embroidered or silk-screened clothing, while attending meetings, as a representative of the union, with employers or other third parties.  We order Hoffa-Hall 2011 and candidate Buhle to cease and desist from accepting such impermissible campaigning from their supporters.

We further direct Hoffa-Hall 2011 to transmit by mail or fax, at its option, the attached notice to all persons, including management and union panel members, representatives, grievants and witnesses, who participated in, had business before, or attended UPS grievance panel meetings in Traverse City on August 3.  The transmission of the notice shall be completed within 3 business days of receipt of this decision; the campaign shall provide affidavit proof of compliance to our offices within 1 business day thereafter. 

Finally, we order Hoffa-Hall 2011 to pay Local Union 135 one-third of the total expenses incurred in sending Hayden to Traverse City.  Our investigation revealed that Haydon’s salary is $1,450.00 per week.  Therefore, Hoffa-Hall 2011 must reimburse Local Union 135 the sum of $290.00 for one day of Hayden’s salary.  In addition, Local Union 135 paid a total of $825.21 in expenses for Hayden’s trip from Indianapolis to Traverse City, including gas for the union-supplied car, meals, and hotel.  Hoffa-Hall 2011 campaign shall reimburse Local Union 135 one-third of that amount or $275.07, making the total due to be paid by Hoffa-Hall 2011 to Local Union 135 the sum of $565.07. 

            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.