Protest Decisions

OFFICE OF THE ELECTION SUPERVISOR

for the

INTERNATIONAL BROTHERHOOD OF TEAMSTERS

IN RE: FRED ZUCKERMAN,                  )           Protest Decision 2015 ESD 1

                                                                        )           Issued: June 16, 2015

            Protestor.                                           )           OES Case No. P-006-060415-GP     

____________________________________)

            Fred Zuckerman, member of Local Union 89 and candidate for International office, filed a pre-election protest pursuant to Article XIII, Section 2(b) of the Rules for the 2015-2016 IBT International Union Delegate and Officer Election (“Rules”).  The protest alleged that a union representative impermissibly wore a campaign shirt to a union-management meeting.

            Election Supervisor representative Jeffrey Ellison investigated this protest.

Findings of Fact

            The protest alleged that Ramiro Alonzo, a business agent and organizer for Local Union 63 and the IBT’s Western Region Coordinator for UPS Freight, improperly campaigned by wearing a “Hoffa-Herrera” shirt to a UPS Freight panel meeting with representatives of management on June 3, 2015.

Ron Herrera was elected International Trustee in November 2011 as a member of the Hoffa-Hall 2011 slate.  During that election, he at times campaigned under the mantle “Hoffa-Herrera.”  Following the 2014 retirement of Randy Cammack as IBT Vice President – West Region[1], Herrera was appointed to fill the vice president vacancy and is presently a candidate for election to retain that office.  On May 10, 2015, Hoffa-Hall 2016 held a campaign kick-off event introducing its slate of candidates, Herrera included. 

The UPS Freight national joint panel was held in Minneapolis, Minnesota during the week of June 1, 2015.  Alonzo attended the meeting and sat as a member of a joint panel in his role as the IBT’s Western Regional Coordinator for UPS Freight.  Alonzo receives a stipend from the IBT for his service in this capacity.  Alonzo was present in Minneapolis commencing Sunday, May 31; the joint panel meetings spanned two days, June 2 and 3. 

Alonzo told our investigator that he packed several black shirts to wear during the trip and did not recognize that one of the shirts bore the Hoffa-Herrera logo.  He said he obtained the shirt during the 2011 election, but conceded that the shirt did not state the year or give any other indication that it was specific to the 2011 campaign.[2]  Herrera is a candidate on the Hoffa-Hall 2016 slate and can be expected to mount a campaign under the Hoffa-Herrera logo, as he did in the 2011 election.

Alonzo stated that on the day he wore the Hoffa-Herrera shirt, he sat as a member of a joint panel that heard and decided four deadlocked cases appealed to the national level, work he said took about a half day to complete.  The panel was comprised equally of management and union representatives.  Management and union representatives each made presentations to the panel, advocating for decisions that favored their respective positions.

As of June 3, the date Alonzo wore the Hoffa-Herrera shirt, Hoffa-Hall 2016 had yet to produce campaign shirts for the current election cycle.  Accordingly, the campaign submits that the shirt Alonzo wore was “just a shirt,” essentially a historical artifact, and did not constitute campaign advocacy for the election of Herrera or the Hoffa-Hall slate in the current election.

For his part, Alonzo stated that his selection of that shirt was “inadvertent,” that he did not wear it intending to make a campaign statement, and that indeed he gave no thought to possible issues it might cause under the Rules.  Alonzo apologized for wearing the shirt in the grievance panel setting and promised not to engage in such conduct again during this election cycle.

The IBT through counsel noted that it has adopted a practice early in each election cycle of sending an advisory to representatives of the union identifying conduct to avoid in order to comply with the Rules.  See, e.g., Bennett, 2006 ESD 80 (February 14, 2006).  It circulated the advisory to its representatives, include stipended employees such as Alonzo, on June 5, two days after the conduct complained of in this protest occurred.  Of relevance here, the IBT’s Advisory Regarding Internal Union Political Activity warns that “[o]fficers and employees may not wear campaign buttons, hats, shirts or similar paraphernalia when dealing with employers of IBT members or third parties.”  (Original emphasis.)

We have circulated similar guidance in previous election cycles.  Office of the Election Administrator, Advisory on Wearing of Campaign Buttons and Other Emblems (October 10, 2000); Office of the Election Officer, Advisory on Wearing of Campaign Buttons and Other Emblems (September 20, 1995) (“Union officers, business agents and employees may not wear campaign emblems when meeting with an employer of IBT members for collective bargaining or grievance resolution, when participating either as an advocate, witness or panel member in grievance hearings, … when making public appearances on behalf of the Union, or when engaged in similar type activities where the wearing of a campaign emblem might inappropriately suggest that the Union with which the officer … is affiliated, is an entity supporting or opposing any particular candidate or group of candidates.”)  We concluded in Bennett that the precedent established by protest decisions made it unnecessary to reissue the Advisory after 2001.

Analysis

            It is well understood that campaign emblems cannot permissibly be worn in labor-management grievance meetings.  The rationale for the prohibition has been restated in several protest rulings, most recently in Zuckerman, 2011 ESD 313 (August 28, 2011):

[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. 

See also, e.g., Sullivan, 2011 ESD 268 (May 28, 2011) (wearing delegate election campaign button into labor-management meeting violates Rules); Bennett, 2006 ESD 80 (February 14, 2006) (directive to remove campaign button before entering labor-management meeting did not violate 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); Mee, PR-075-LU70-PNW (April 7, 1998) (local union business agent violated Rules by wearing campaign hat and t-shirt while representing members at grievance meeting); Powell, P-728-LU6880CHI (May 30, 1996) (Rules violation not proved where evidence was lacking that local union representative wore campaign jacket at change of operations meeting with management); and Green, P-320-LU20-SEC (February 7, 1996) (local union president violated Rules by wearing campaign button to carhaul labor-management meeting, where he attended meeting in representational capacity).

            The shirt Alonzo wore bore an emblem that those viewing it would reasonably understand as campaign advocacy for the election of Hoffa and Herrera in the current cycle, given that at the time of the incident here both had just declared their candidacies in the current campaign.  Accordingly, we reject the contention of Hoffa-Hall 2016 that the shirt did not constitute impermissible campaigning because the shirt had been made for the previous election when Herrera was a candidate for International Trustee.  The shirt did not on its face refer to a previous election and, specifically, did not include a date, i.e., “Hoffa-Herrera 2011,” or the name of the office to which Herrera previously sought election.  Instead, it stated merely “Hoffa-Herrera,” a designation that in its nonspecific simplicity easily applies to the current campaign.

            The IBT correctly conceded that Alonzo’s action violated the Rules but argued that its dissemination to its representatives of the advisory on conduct of union representatives during the electoral period remedies the violation.

            On the facts presented here, 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.  “The Election Supervisor’s discretion in fashioning an appropriate remedy is broad and is entitled to deference.”  Hailstone & Martinez, 10 EAM 7 (September 14, 2010)

Although there is no evidence that Hoffa-Hall 2016 knew of Alonzo’s conduct in advance or at the time of the incident, it did receive the benefit of having a message of support for slate members 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 Alonzo to cease and desist from impermissible campaigning by wearing campaign emblems, whether as shirts, buttons, pins, or other embroidered or silk-screened clothing, while attending meetings, as a representative of the union, with employers or other third parties.  We order Hoffa-Hall 2016 and candidate Herrera to cease and desist from accepting such impermissible campaigning from their supporters.

We further direct Hoffa-Hall 2016 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 Minneapolis on June 3.  Notices serve the remedial goals of informing members of the requirements of the Rules and deterring similar violations.  Smith et al, 2006 ESD 395 (November 12, 2006), appeal dismissed, 06 EAM 78 (December 7, 2006).  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.  This notice remedy is consistent with the notice remedy ordered in Zuckerman, 2011 ESD 313 (August 28, 2011).

In contrast with the situation presented in Zuckerman, however, which occurred well into the electoral period (after the IBT convention but before mailing of ballots), we exercise our discretion not to impose a monetary remedy against Hoffa-Hall 2016 in this case, which arose very early in the electoral period and months before ballots will be cast in the first local union delegate elections.  We expect Hoffa-Hall 2016 to educate its supporters who are union representatives on refraining from campaign activity when in a representational capacity.  The campaign should anticipate that further violations of this nature will invite a stronger remedy.

Finally, we order no relief against the IBT, concluding that its prompt action in issuing instructions to its representatives about appropriate conduct during the electoral period is equivalent to the remedy we might otherwise impose against it.

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:

Election Appeals Master

c/o Richard W. Mark, Election Supervisor

1050 17^th Street, N.W., Suite 375

Washington, D.C. 20036

electionsupervisor@ibtvote.org

(202) 774-5526 fax

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, 1050 17^th Street, N.W., Suite 375, Washington, D.C. 20036, all within the time prescribed above.  A copy of the protest must accompany the request for hearing.

                                                                        Richard W. Mark

                                                                        Election Supervisor

cc:        [EAM]

            2015 ESD 1  

Bradley T. Raymond, General Counsel

International Brotherhood of Teamsters

25 Louisiana Avenue, NW

Washington, DC 20001

braymond@teamster.org

David J. Hoffa

1701 K Street NW, Ste 350

Washington DC 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

Teamsters United

315 Flatbush Avenue, #501

Brooklyn, NY 11217

info@teamstersunited.org

Louie Nikolaidis

350 West 31^st Street, Suite 40

New York, NY 10001

lnikolaidis@lcnlaw.com

Julian Gonzalez

350 West 31^st Street, Suite 40

New York, NY 10001

jgonzalez@lcnlaw.com

David O’Brien Suetholz

515 Park Avenue

Louisville, KY 45202

dave@unionsidelawyers.com

Ramiro Alonzo

freightwest@aol.com

Ron Herrera

880 S. Oak Park Rd, Suite 200

Covina, CA 91724

Mary Ann Campbell

13853 State Road E

DeSoto,  MO  63020

mcampbell@ibtvote.org

Jeffrey Ellison

214 S. Main Street, Suite 210

Ann Arbor, MI 48104

EllisonEsq@aol.com