Protest Decisions

OFFICE OF THE ELECTION SUPERVISOR

for the

INTERNATIONAL BROTHERHOOD OF TEAMSTERS

IN RE: FRED ZUCKERMAN,                      )           Protest Decision 2015 ESD 5

                                                                        )           Issued: July 1, 2015

            Protestor.                                           )           OES Case No. P-005-060115-NE

____________________________________)

            Fred Zuckerman, member of Local Union 89 and candidate for International office, filed a pre-election protest pursuant to Article XIII, Section 2(a) of the Rules for the 2015-2016 IBT International Union Delegate and Officer Election (“Rules”).  The protest alleged that union funds were used to oppose the candidacies for International office of Zuckerman and Tim Sylvester.

            Election Supervisor representative Peter Marks investigated this protest.

Findings of Fact

            The protest alleged that IBT General Secretary-Treasurer Ken Hall and IBT Regional Vice President Sean O’Brien used union resources to attend an event in Sunnyside, Queens, New York, on Saturday, March 14, 2015 that had the purpose or effect of opposing the International officer candidacies of the protestor and Sylvester by promoting the candidacies for local union office of Local Union 804 members.  The protest alleged that the event attended by Hall and O’Brien “was not a formal Local 804 sanctioned event,” but, instead was a “purely political event” of candidates for Local Union 804 office opposed to the incumbents.

            The protestor is president and principal officer of Local Union 89 in Louisville, Kentucky.  He announced his candidacy for International office in August 2014.  Sylvester is president and principal officer of Local Union 804 in Queens, New York.  Sylvester announced his candidacy for IBT General President on March 12, 2015, two days before the event that is the subject of this protest.

            Investigation showed that in February 2014, about thirteen months before the event at issue here, members of Local Union 804 engaged in a 90-minute work stoppage in support of a fired driver at the UPS Maspeth facility.  UPS deemed the action a violation of the no-strike provision of the collective bargaining agreement.  Although the employees returned to work at the end of the work stoppage, UPS over the next five weeks dismissed them in platoons, eventually firing some 250 local union members employed at Maspeth.

            As the firings began and continued, Local Union 804 responded with grievances, demands for arbitration, and a public campaign that included a petition drive, demonstrations, appeal to and support from elected officials of New York City, and outreach to UPS customers.[1]  In April 2014, Sylvester and others for the local union and Hall and O’Brien for the IBT met with UPS to resolve the matter.  The April 9, 2014 resolution signed by UPS and Local Union 804 obtained reinstatement with ten day suspensions for all the striking employees, reinstatement for the driver whose dismissal sparked the job action, payment of $250,000 by the local union to UPS for damages from the work stoppage, and mutual withdrawal of unfair labor practice charges and demands for arbitration.  Separately, the local union advised UPS by letter the same date that the business agent previously responsible for the Maspeth facility would perform no representational duties for the local union with respect to UPS.

            Many months later, local union stewards and members who were part of the Maspeth group sought to organize an event to honor and thank Hall and O’Brien for their roles in resolving the UPS matter.  Eddie Villalta, one of the group, told our investigator he contacted both men for that purpose, and they settled on a date, Saturday, March 14, at 10:15 a.m., when they could attend.  Villalta took up a collection among other interested members, secured space for the event at the Sunnyside Community Center in Sunnyside, Queens, purchased plaques to be presented, and arranged coffee and refreshments for all.

            The date and time selected for the “thank you” event conflicted with an “Organizing Meeting to Elect New International Union Leadership.”  This “Organizing Meeting,” already-scheduled by Sylvester, was set for Saturday, March 14, at 10:30 a.m., at the Knights of Columbus hall in Woodside, Queens, 15 minutes later and about eight blocks east on Queens Boulevard of the “thank you” event.

            Hall told our investigator he traveled to New York with Leah Ford, an IBT employee based in Washington DC, who was traveling to New York that day to attend to family there.  Hall said he rose at 4 a.m. that Saturday to attend the event.  According to Ford, Hall paid the gas and tolls from personal funds to get to the destination.  Hall produced a receipt for gas purchased in Mt. Laurel, NJ that day, the payment drawn on his personal funds.  Hall returned to Washington the same day, hiring a cab to Penn Station in Manhattan and then traveling via Amtrak for the rest of the trip.  Hall produced a receipt for the train ticket, purchased March 13 from personal funds. 

            O’Brien told our investigator he traveled to Queens using a vehicle provided by Local Union 25, where he is principal officer.  By-laws of Local Union 25 permit personal use of vehicles issued to its officers, with a year-end accounting of personal vs. business miles for tax purposes.  O’Brien told our investigator that he considered the event a personal one for vehicle accounting purposes.        

            On March 12, 2015, two days before both events, Sylvester announced his candidacy for IBT General President.  Sylvester emailed the announcement to the IBT the same day.

            At the “thank you” event, steward Villalta led to the lectern a succession of speakers who thanked Hall and O’Brien for their efforts on behalf of the Maspeth 250.[2]  During this part of the program, Hall and O’Brien sat at a table close to the stage.  When the speakers finished, Hall and O’Brien ascended the stage and were presented with plaques.

            After receiving the plaques, Hall and then O’Brien addressed the gathering.[3]  Hall provided his version of events concerning the resolution of the Maspeth dismissals.[4]  In so doing, he appeared to criticize Sylvester to the gathering, stating:

I tried very hard to be supportive of your leadership and to work with them.  That has been for the length of time they’ve been in office.  But I also have to say I draw the line when somebody puts their own career above that of their members.  This is too far.  That I can’t tolerate.

Further:

If me or anybody else in this union uses our members as pawns to bolster our own political career, we need to get the hell out of this business.

O’Brien followed Hall to the lectern.  After thanking Villalta for his “courage and conviction” for “what you’re doing,” O’Brien said, “Let’s look ahead to the Teamsters Union as a whole.”  He stated that pay raises, pension, and health care are hard-won benefits of the union –

That’s not because of one guy that’s claimed victory all over the country for his own personal agenda.  That’s because of guys like Ken Hall.  That’s because of guys who have fought in the trenches for thirty-plus years so that we can enjoy the conditions that we have today.

No evidence was presented or found to support the protest’s allegation that a purpose of the Sunnyside event was to promote the candidacies of individuals seeking local union office in opposition to Sylvester.

Analysis

This protest was timely filed as a “reachback” protest under Article XIII, Section 2(a) of the Rules, which permits protests “regarding violations of the LMRDA (including violations of the IBT Constitution) allegedly occurring prior to the date of issuance of these Rules” to be filed “within the first thirty (30) days of the date of issuance.”[5]  Accordingly, it cannot and does not allege a violation of the Rules, which were not in effect at the time of the incident complained of.

The LMRDA prohibits use of union resources to support or oppose a candidacy.  The protestor alleges that Hall and O’Brien attended the Sunnyside event by impermissibly using union resources to pay their travel expenses.

With respect to Hall’s transportation, the evidence disproves the allegation.  Hall has satisfactorily established that he paid toll, gasoline, cab, and train expenses for the round-trip travel to Sunnyside from personal funds, presenting receipts for gas and train.  With respect to toll and gas, Hall’s evidence is corroborated by Ford, in whose car he made the trip to the event.

O’Brien indeed used a union-provided car and gasoline to travel to the event from Boston.  However, as the Local Union 25 bylaws expressly permit personal use of union-issued vehicles, O’Brien did not impermissibly use union resources to attend the event.

Based on this evidence, we find no violation of the LMRDA’s prohibition on impermissible use of union resources to support or oppose a candidacy.

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:

Kathleen A. Roberts

Election Appeals Master

JAMS/Endispute

620 Eighth Avenue, 34^th floor

New York, NY 10018

kroberts@jamsadr.com

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 350, 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:        Kathleen A. Roberts

            2015 ESD 5

DISTRIBUTION LIST (BY EMAIL UNLESS OTHERWISE SPECIFIED):

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

Ken Hall, General Secretary-Treasurer

International Brotherhood of Teamsters

25 Louisiana Avenue, NW

Washington, DC 20001

khall@teamster.org

Sean O’Brien, IBT Vice President, East Region

International Brotherhood of Teamsters

25 Louisiana Avenue, NW

Washington, DC 20001

contactus@teamsterslocal25.com

Eddie Villalta

30  Orchard Rd

Patchogue NY 11772 

otpays@optonline.net

Peter Marks

116 Nagle St

Harrisburg, PA 17104

pmarks@ibtvote.org

Jeffrey Ellison

214 S. Main Street, Suite 210

Ann Arbor, MI 48104

EllisonEsq@aol.com