OFFICE OF THE ELECTION SUPERVISOR
for the
INTERNATIONAL BROTHERHOOD OF TEAMSTERS
IN RE: RICHARD GALVAN, ) Protest Decision 2015 ESD 21
) Issued: August 13, 2015
Protestor. ) OES Case No. P-017-071415-FW
____________________________________)
Richard Galvan, member of Local Union 396, 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 Local Union 396 has improperly supported the candidacy of Ron Herrera for International office by distributing union-funded shirts to members that mimic Herrera campaign shirts from his local union election.
Election Supervisor representative Michael Miller investigated this protest.
Findings of Fact
Ron Herrera is IBT vice president for the West region and is a candidate for election to that position on the Hoffa-Hall 2016 slate. He is also principal officer of Local Union 396, most recently reelected to that position in Fall 2014.
During the local union election, Herrera’s campaign produced and distributed to supporters a campaign shirt that promoted his election. Beginning in July 2015, Local Union 396 began a Teamsters Thursday campaign for the stated purpose of engendering union solidarity among the membership. A central feature of the Teamsters Thursday campaign was the distribution of union-funded shirts at select worksites and encouragement of the members receiving the shirts to wear them each successive Thursday. Members receiving the shirts signed a register acknowledging receipt, listing their names and contact information. Local Union 396 officials told our investigator that the information on the register was required by local union bookkeepers for two purposes: to document that the expenditure for the shirts was for a union purpose and that union members benefited from it, and for inventory control. The officials denied that the information was or would be used for any campaign purpose.
This protest was filed, alleging that the union-funded Teamsters Thursday shirts bore a striking resemblance to the Herrera campaign shirts thus invoking the Herrera “brand.” The protest asserted that the union-funded shirts constituted impermissible union support for Herrera’s candidacy for election to International office as a member of the Hoffa-Hall 2016 slate.
A comparison of the Herrera campaign shirt used in the local union election and the union-funded Teamsters Thursday shirt shows several similarities. Thus, both shirts are black; both shirts are screened using red and white inks; both shirts have a smaller text emblazoned at the left breast of the front of the shirt and a large graphic and text filling the back; both shirts use identical font printed in red with white outline.
Further comparison shows many differences in the shirts. The front of the Herrera campaign shirt states “Vote Ron Herrera Local 396 Slate ‘The Members Choice,’” with “Herrera” appearing in red ink outlined in white and the balance of the text printed in white, with the exception of the “v” in “Vote” appearing as a red check mark. The front of the Teamsters Thursday shirt, in contrast, reads “Teamsters Thursday,” printed in red with white outline. Immediately beneath this text is the Teamsters horses-and-wheel logo, in white, and “Local 396,” also in white. The back of the Herrera campaign shirt repeats verbatim the language of the front of the shirt but in substantially larger font size and with the addition of the horses-and-wheel logo. The back of the Teamsters Thursday shirt reads “Teamsters Local 396” at the top, printed in red outlined in white, followed by a white horses-and-wheel logo and script “One Union – One Fight.”
Front Herrera LU campaign shirt Teamsters Thursday shirt
Back
Herrera told our investigator that after he became principal officer of the local union in 2002, the decision was made to make shirts available at no charge to local union members. Since that time, he stated the local union has maintained a large stock of t-shirts at the union office, which are distributed at a variety of union-sponsored events that occur throughout the year. Herrera stated that two local union business agents, Javier Bonales and Percy Martinez, are in charge of ordering, accounting for, and distributing the union-funded shirts at these various events.
Three designs of union-paid shirts are presently available for distribution: a dark navy shirt with yellow lettering for UPS hub workers; a brown shirt with yellow lettering for UPS drivers, which matches their brown uniforms and prevents any conflict with the UPS dress code; and, more recently, the black shirt with red and white lettering at issue in this protest, which was distributed principally to sanitation division members. Herrera stated that he delegated the ordering, design, and distribution of all the solidarity t-shirts to Bonales, who was assisted by Martinez. Herrera said he did not know that the new sanitation shirts were black with red and white lettering until distribution of them had begun, which he said started in April 2015. Slightly more than 400 of the 2,000 shirts ordered have been distributed. When this protest was filed, Herrera directed that distribution of the Teamsters Thursday shirts be suspended pending the resolution of the protest in order to mitigate any potential harm should a Rules violation be found.
In addition to handling shirt design, ordering and distribution for union-funded shirts, Bonales and Martinez performed the same function for Herrera’s campaign shirt during the Fall 2014 local union election. Herrera acknowledged that the color and lettering of the union-funded shirt were similar to Herrera campaign shirt.
Bonales and Martinez denied that they designed the “Teamsters Thursday” shirt with any officer campaign in mind. Our investigator was provided with photographs of shirts designed for past Local Union 396 giveaways, which showed other black shirts (some using red type) with messages over the left breast and on the back, just as on the “Teamsters Thursday” shirt. These other giveaways referenced diverse matters from general union support (“Live Better – Local 396”), to union power messages (“Stop the War on Workers,” “Will Strike if Provoked”), to other activities (shirt for Texas Hold ‘Em tournament).
Hoffa-Hall 2016 has produced shirts to support the slate. All products shown on its website contain block white lettering with red accents on a black background. The font used for text is distinct from that used on the Herrera campaign and Teamster Thursday shirts, both in style and color. The Hoffa-Hall t-shirt is printed on one side only:
Herrera has not produced a campaign shirt supporting his candidacy for International office.
The protest alleged that “the close similarities between these shirts was coordinated intentionally by Local 396 and candidate Ron Herrera to promote a sense of brand awareness amongst union members between the Hoffa/Hall Campaign effort and the Teamster Local Union 396. By giving the shirts such similar design of such distinctive qualities, the Hoffa/Hall Campaign and Hoffa slate member Ron Herrera, the principal officer of Local 396, are in violation of the Rules.” A position statement supporting the protest stated that “Herrera – as a candidate in both his prior local union election and the current IBT election – has made the shirt design characteristics … so closely associated with his personal campaigns as to make their usage on union-financed t-shirts during the electoral period an implicit endorsement of his candidacy for International office on the Hoffa slate.”
The protest further asserted that the collection of contact information from members receiving the union-funded shirt was for a campaign purpose.
Analysis
Article VII, Section 12(c) prohibits use of union funds to support a candidate. At bottom, the protest contends that a local union’s use of colors and fonts employed in a local union campaign shirt adopted the “brand” associated with that candidate and thereby used union resources to promote his candidacy for International office.
Precedent establishes that a union violates the Rules by adopting as union themes the slogans of a candidate. Thus, in Lopez, P242 (December 19, 1995), aff’d, 96 EAM 51 (January 8, 1996), a local union violated the Rules by adopting the slogan “Putting Members First” in its publications, where that precise language was the campaign slogan of the Carey campaign. In Dethrow, 2001 EAD 381 (June 4, 2001), the use of the word “unity” in a union newsletter article that lauded the accomplishments of the Hoffa administration violated the Rules because that term was established already as a slogan of the Hoffa campaign. In Martinez, 2001 EAD 384 (June 11, 2001), appeal withdrawn, the use of “Unity, Pride, Strength” in an IBT organizing brochure that championed the accomplishments of the Hoffa administration violated the Rules where that same phrase was a prominent campaign slogan of the Hoffa Unity slate. Further, in Martinez, 2001 EAD 414 (July 27, 2001), aff’d, 01 EAM 87 (August 30, 2001), the IBT’s extensive use of the same phrase at the IBT convention violated the Rules because it was closely identified with the Hoffa campaign.
Here by contrast, the union-funded shirt does not adopt the language of the Herrera campaign shirt. The Herrera shirt urges the reader to vote for his slate, which is identified variously as the “Local 396 Slate” and “The Members Choice.” The union-funded shirt identifies the local union itself, not a slate, and sounds the theme of “One Union – One Fight,” a non-partisan slogan. As such, the language of the two shirts is sufficiently distinct so as not to implicate the Lopez, Dethrow and Martinez holdings. The protestor does not contend otherwise.
Rather, the protestor asserts that the shirt color, font, and ink colors of the two shirts are so similar that the union-funded shirt implicitly adopts and endorses the message that the campaign shirt presented. We are unpersuaded that the union-funded shirt’s fonts and colors alone, without more, convey and reinforce the campaign message of the partisan shirt. The language of the shirts is an essential element of the messages they convey. Although the script used to present those messages is similar, we cannot ignore that the language of the union-funded shirt does not approach the line established by the cited decisions.
The protestor’s argument is further wanting with respect to the Hoffa campaign shirt. We find that shirt even more readily distinguishable from the union-funded shirt, in its graphics, font, ink combinations, front-side-only printing, and most importantly, in its language, such that the protestor’s argument under the cited cases is unconvincing.
Finally with respect to the collection of contact information from the members who received the union-funded shirts, there is no evidence to counter the local union’s explanation that the information was collected for audit and inventory control purposes and will not be used for campaign assistance. Should the information be made available to any candidate, however, it must be made available to all on a nondiscriminatory basis. Article VII, Section 12(c).
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
620 Eighth Avenue, 34th 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 17th 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: Kathleen A. Roberts
2015 ESD 21
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 31st Street, Suite 40
New York, NY 10001
lnikolaidis@lcnlaw.com
Julian Gonzalez
350 West 31st Street, Suite 40
New York, NY 10001
jgonzalez@lcnlaw.com
David O’Brien Suetholz
515 Park Avenue
Louisville, KY 45202
dave@unionsidelawyers.com
Fred Zuckerman
P.O. Box 9493
Louisville, KY 40209
fredzuckerman@aol.com
Richard Galvan
1208 E. Dalton Avenue
Glendora, CA 91741
Patg_0706@yahoo.com
Teamsters Local Union 396
880 S. Oak Park Road, Suite 200
Covina, CA 91724
teamsters@local396.net
Michael Miller
P.O. Box 251673
Los Angeles, CA 90025-1673 miller.michael.j@verizon.net
Deborah Schaaf
1521 Grizzly Gulch
Helena, MT 59601
dschaaf@ibtvote.org
Jeffrey Ellison
214 S. Main Street, Suite 210
Ann Arbor, MI 48104
EllisonEsq@aol.com