Protest Decisions

OFFICE OF THE ELECTION SUPERVISOR

for the

INTERNATIONAL BROTHERHOOD OF TEAMSTERS

IN RE: FRANK HALSTEAD,                   )           Protest Decision 2016 ESD 245

                        )           Issued: June 16, 2016

            Protestor.                                           )           OES Case Nos. P-260-041316-FW   

____________________________________)                                  

Frank Halstead, member and delegate candidate in Local Union 572, 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 Lourdes Garcia, candidate for delegate on the Members With Middleton slate and general counsel to the local union, violated the Rules by advocating for the slate while providing the local union’s response to several pending protests.  The conduct by Garcia was said to constitute a union contribution to the Middleton slate.  The remedy the protest requested was reimbursement to the local union of the value of Garcia’s services.

            Election Supervisor representative Deborah Schaaf investigated this protest. 

Findings of Fact and Analysis

            Article XI, Section 1(b)(3) prohibits a union from contributing anything of value to a candidate; the provision also bars a candidate from accepting contribution of anything of value from a union.  It has often been held that filing a protest “is protected, and does not constitute support for a candidate or campaigning under the Rules.”  Randolph, 2000 EAD 28 (September 27, 2000) (use of union fax machine to file a protest no violation); Keiffer, P360 (March 19, 1996) (same).

This protection is not without limitation. Whether the filing and subsequent processing of a protest constitutes an improper use of union funds depends on whether the protest furthers the independent, institutional interest of the union.  Jenne, 2000 EAD 64 (December 14, 2000); Koch, 2006 ESD 169 (April 3, 2006) (protest researched and prepared on union-paid time and filed on union stationery is permissible where it sought to enforce Rules provision limiting ballot access to eligible candidates).  Local unions can expend their resources to pursue a protest filed to ensure proper implementation of the Rules as long as they do not take a partisan position or engage in advocacy on behalf of particular candidates.  Id.  When these criteria are met, a local union may use its funds to file and pursue such a protest.  It may do so by paying for time spent by its officers in handling such protests and by hiring legal counsel.  Local unions cannot, however, use their funds to finance protest activity that advances or damages a candidacy without implicating the institutional interest of the union.  We apply a tolerant standard for differentiating between proper and improper expenditures in this context.  Hammons, 2010 ESD 35 (October 12, 2010).

            The same standard applies to local union expenditures in defending itself against a protest filed by a candidate or providing evidence and argument to the Election Supervisor on a protest filed by a candidate against another candidate or an employer who is alleged to have violated the Rules.  Where the local union’s participation in the protest process is in support of its institutional interests or the proper enforcement of the Rules and the advocacy does not take a partisan position or advocate on behalf of a candidate, it may expend its resources in participating in the protest procedure.

            Here, Halstead through counsel asserted that Garcia in her role as local union general counsel impermissibly advocated for the Members With Middleton slate and against the Teamsters United 572 slate by presenting evidence and argument to investigators of the Election Supervisor under circumstances where her participation was inconsistent with the institutional interests of the local union.

            Halstead relies on email Garcia sent to OES investigators in protests that resulted in two protest decisions, as well as protests alleging retaliation that remain pending.  These email came to Halstead’s attention when Local Union 572 attached them to its appeal of three protest decisions: Garcia, 2016 ESD 164 (April 8, 2016); Teamsters United 572, 2016 ESD 165 (April 8, 2016); and Halstead, 2016 ESD 166 (April 8, 2016).  Halstead’s counsel argued that Local Union 572 had no legitimate institutional interest in opposing the following aspects of particular protests Halstead filed:

• P-142 – a protest challenging Gate Gourmet’s denial of parking lot access to Teamsters United 572 campaigners
• P-168 – a protest alleging that the termination of three UPS employees constituted retaliation for their support for Teamsters United 572
• P-172 – a protest alleging that a Teamsters United 572 campaigner was improperly denied campaign access at First Student – Pasadena
• P-175 – a protest that challenged in particular the posting of MWM campaign literature on an employer bulletin board and the dispatch counter at First Student – San Fernando
• P-189 – a protest alleging that the termination of a First Student employee constituted retaliation for her support for Teamsters United 572

Halstead through counsel asserted that two emails Garcia sent to OES investigators did not advance an institutional interest of the local union and constituted impermissible advocacy.  The first, sent February 26, 2016, presented evidence that Teamsters United 572 (TU) campaigners had been permitted to campaign in an employee parking lot at Gate Gourmet.  This evidence was not disputed by the protestor and was relevant to investigation of the protest, but was ultimately determined not to be material to the Rules violation found at Gate Gourmet because it demonstrated campaigning in the general employee lot and not in the restricted lot, where Gate Gourmet had barred campaigning, and the evidence also did not bear on the two week period when Gate Gourmet prohibited all parking lot campaigning in both lots.  We find nonetheless that the local union had an institutional interest in presenting this evidence to our investigator because it ran to the proper enforcement of the Rules’ provisions with respect to parking lot access.

            The February 26 email also included photographic evidence of a TU flyer purportedly displayed on an employer bulletin board at First Student – San Fernando.  This evidence was relevant to whether the employer had discriminated against the TU slate by displaying only MWM campaign material.  The local union had an institutional interest in insuring that OES had all relevant information concerning the alleged violation.

            A March 23, 2016 Garcia email laid out the local union’s responses to several protests.  This email was sent some two weeks after the tally of ballots was completed in the first delegates and alternate delegates election and two weeks before the decision was issued in Halstead ordering a rerun of that election.  At this point, the local union had an institutional interest in affirming the election results of the first election as the democratic choice of its membership; moreover, its interest included avoiding the expenditure of funds for a rerun election.  Garcia’s email addressed several pending protests, including the evidence that TU had extensive access to members at Gate Gourmet; that TU had extensive parking lot access at First Student – San Fernando before and after the date that the facility manager there called the police to have the TU campaigners ejected; that no members had the right to campaign at First Student – Pasadena and other First Student locations that had no employer-provided parking lot; that the local union regarded Elva Roman’s discharge at First Student as a colorable violation of the contractual just cause provision but had no evidence to suggest that the employer dismissed her because of her support for TU; and that the terminations of three members at UPS had been duly processed through the grievance procedure, that one member had been returned to work, and that the other two had lost their cases unanimously at joint panel proceedings, suggesting that job-related misconduct and extensive disciplinary histories prompted their dismissals rather than retaliation for Rules-protected activity.

            Against the tolerant standard identified in Hammons, we conclude that Garcia’s February 26 and March 23 email were consistent with the local union’s institutional interests of proper enforcement of the Rules and preservation of the local union’s treasury and did not take partisan positions.

On the facts presented, 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, 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 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

            2016 ESD 245

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