IN RE: MICHAEL ELLISON,
Protest Decision 2001 EAD 214
Issued: March 6, 2001
OEA Case No. PR020515SO
Michael Ellison, a member of Local 19 and a candidate for delegate, filed a pre-election protest pursuant to Article XIII, Section 2(b) of the Rules for the 2000-2001 IBT International Union Delegate and Officer Election ("Rules"). He alleges that 1) union resources were used to pay the expenses of a campaign meeting held by the Rhoades slate; 2) employer resources were used to fund the travel expenses of the featured speaker at the meeting; and 3) as a general matter the Rhoades slate has failed to maintain a record of its income and expenses as required by the Rules.
Election Administrator representative Dolores Hall investigated the protest.
Findings of Fact and Analysis
Rodney Rhoades, Robert Rasch and Ken Faulk, among others, are members of the Rhoades slate. On February 3, 2001, the Rhoades slate conducted a meeting at the Hobby airport in Houston, Texas. Its publicity for the meeting invited all members of the local to attend and participate in a "[d]iscussion on what the convention pertains to and how it will benefit the members of our Local." The meeting's featured speaker was Bobby Kavelac, a business agent from Local 964 in Cleveland, Ohio. A substantial segment of Local 19's membership is employed by Continental Airlines in Texas. As business agent, Kavelac deals with Continental in Ohio and assists sister locals with Continental issues.
Rhoades conceived the idea for the meeting after discovering that many members had the impression that the convention was merely a week of partying. As he had no convention experience, Rhoades did not know how to respond to these members. He mentioned their statements to Kavelac, with whom he was discussing Continental negotiations scheduled to commence in March. Because Kavelac had been to several conventions, Rhoades invited him to address the Local 19 membership at the Rhoades slate meeting about the convention and the upcoming bargaining with Continental. Kavelac accepted.
Kavelac contacted Rodney Cox, Continental's labor relations manager, to request free transportation to Houston. The collective bargaining agreement with Continental provides transportation to employees of the union "for the purpose of administering this Agreement, at the level and to the extent such passes are provided to officials of other unions representing other Company work groups." Kavelac told Cox he was traveling to Houston to speak with Continental employees about contract negotiations. Kavelac did not tell Cox that his forum would be a campaign meeting sponsored by a slate of delegate candidates. Nor did he tell Cox that he would also be discussing the convention at the meeting. Cox supplied the travel voucher, finding that Kavelac's trip was appropriate under the contractual provision quoted above. Cox told Kavelac that anything Kavelac could do to educate Local 19's membership would be beneficial and that Continental wanted no problems with the union at Thanksgiving and Christmas.
Kavelac traveled to and from Houston and attended the Rhoades slate meeting all in one day, Saturday, February 3, his day off. A member of Local 19 took him to and from the meeting. Rhoades and Faulk paid the cost of the meeting room jointly from personal funds.
At the meeting attended by 25 to 60 members, Rhoades introduced Kavelac as an experienced Teamster conventioneer who would explain to the audience the purpose the convention serves and what actually happens at it. Rhoades told the audience Kavelac was not present to give an endorsement of any particular candidate. Kavelac then took the floor and discussed the convention. He also addressed the upcoming contract negotiations with Continental, telling those assembled that he would soon be putting out a questionnaire requesting the members to identify the key priorities for the new contract. He then answered questions on both subjects. There is no evidence that Kavelac endorsed the Rhoades slate or any candidate for delegate.
Ballots were tallied in the delegate election on February 27. The Rhoades slate won the three delegate and three alternate delegate seats. The margin of victory between the third and fourth place finishers in the delegate race was 268 votes; in the alternate delegate contest, 233.[1]
Article VII, Section 11(c) prohibits use of union funds to assist in campaigning. Article VII, Section 11(b) bars union employees from campaigning on time that is paid for by the union. However, "campaigning during paid vacation, paid lunch hours or breaks, or similar paid time off is … not violative of this section." Id. Article XII, Section 2(b)(1) requires candidates and slates "to keep records sufficient to demonstrate compliance with these Rules."
The evidence demonstrates that the costs of the February 3 meeting were borne by the Rhoades slate and not by the union. Further, Kavelac's activities were carried out on his day off. Therefore, the protestor's allegation that the Rhoades slate meeting occurred with the assistance of union funds or union-paid staff time is DENIED.
Further, the evidence demonstrates that the Rhoades slate has maintained sufficient records to demonstrate its compliance with the income and expenditure provisions of the Rules. Thus, Rasch has at all times maintained an accounting of the expenses of the Rhoades slate, and disclosed the same to our investigator. There is no evidence that either the contributions received or the expenditures made by the Rhoades slate campaign violated the Rules, with the exception of the violation found below. We accordingly DENY this aspect of the protest.
We GRANT the protest's allegation that a prohibited employer contribution was used to assist the Rhoades slate with respect to Kavelac's travel to the February 3 meeting at Hobby airport. Article XI, Section 1(b)(2) bars an employer from contributing:
directly or indirectly, anything of value, where the purpose, object or foreseeable effect of the contribution is to influence, positively or negatively, the election of a candidate. No candidate may accept or use any such contribution. … These prohibitions extend beyond strictly monetary contributions made by an employer and include contributions or use of employer stationery, equipment, facilities and personnel.
Further, Article XI, Section 1(b)(13) declares, "[c]andidates are strictly liable to insure that each contribution received is permitted under these Rules. Prohibited contributions must be returned promptly." Finally, Article XI, Section 1(b)(14) warns that "[i]gnorance by a candidate, by a union and/or by an employer that union or employer funds or other resources were used to promote a candidacy shall not constitute a defense to an allegation of a violation of these Rules."
Continental subsidized Kavelac's travel because its labor relations manager concluded, after speaking with Kavelac, that the travel was covered by the provision of the Continental-IBT agreement that required such subsidization when travel is "for the purpose of administering th[e Continental-IBT] Agreement." However, Kavelac did not disclose to labor relations manager Cox that the purpose of his trip was to address the Rhoades slate meeting, a campaign event regulated by the Rules. We conclude that Kavelac's travel to Houston was not "for the purpose of administering the [labor] agreement," and was thus not properly paid for by Continental under the agreement's provision for employer subsidization of travel having such purpose.
That Kavelac made no express endorsement of a candidate during the meeting is immaterial. Nor is it relevant that Kavelac's presentation was for an educational purpose, or that he also discussed labor-management issues regarding Continental. Regardless of the intent of Kavelac, the Rhoades slate, or for that matter Continental, the foreseeable effect of Kavelac's appearance as the featured speaker at the meeting was to influence in a positive manner the election of the candidates on the Rhoades slate. Thus, at Rhoades' request and for his slate's benefit, Kavelac's presentation sought to counter the negative impression of the convention Rhoades had observed and thereby encourage rank-and-file participation in the electoral process. Moreover, those attending would likely view the appearance by an influential business representative traveling a considerable distance on his personal time as demonstrating that the Rhoades slate carried influence, thus enhancing its electoral prominence. Because of these foreseeable effects, the Rules required that all expenses associated with the meeting - including the airfare of the keynote speaker - be derived from permitted sources. The receipt by the Rhoades slate of free transportation from Continental for Kavelac therefore violated the Rules.
Remedy
When the Rules have been violated, the Election Administrator "may take whatever remedial action is appropriate." Article XIII, Section 4. In fashioning the appropriate remedy, the Election Administrator considers the nature and seriousness of the violation, as well as its potential for interfering with the election process.
As an initial matter, we decline to exercise our authority under Article XIII, Section 4(u) of the Rules to order the rerun of the delegate election because we determine, based on the substantial margins separating the candidates, that the Rhoades slate would have prevailed even in the absence of Kavelac's employer-subsidized appearance.
However, the improper employer contribution must be remedied. The Rhoades slate and Kavelac argue that the remedy here should be limited to the difference in price between the free fare obtained by Kavelac and the discounted "buddy pass" fare available to Continental employees. They base this argument on their claim that Kavelac could have received a "buddy pass" from a Continental employee such as Rhoades, who in fact offered Kavelac the option of traveling to Houston for the February 3 meeting on one of his "buddy passes."
We reject this argument. Continental's "buddy pass" rules allow Continental employees to give passes to others for space available travel unaccompanied by the Continental employee within the mainland United States. The terms and conditions published by Continental with respect to the program provide that in order to use the buddy pass unaccompanied by a Continental employee, the non-employee recipient of the pass must have obtained the pass along with an "Unaccompanied Authorization letter, signed by both the employee whose name is imprinted on the buddy pass and the buddy pass traveler…." Here, Kavelac never received these items, and we are unwilling to speculate for purposes of limiting the remedy here that these items would have in fact been received by him had he not availed himself of the improper contribution of free air fare from Continental.
Moreover, acceptance of the Rhoades slate/Kavelac argument would require that we conclude that Kavelac's use of a Continental discounted fare "buddy pass" for campaign purposes would not itself be an improper employer contribution. We are unwilling to make that assumption here in order to limit the remedy in this case for Kavelac's receipt of free air travel from Continental. Thus, Continental's labor relations manager Cox told our investigator that whether Kavelac could have used a "buddy pass" to travel to Houston was a "tricky situation," since Continental's rules regarding such passes provide that they are not to be "used for any purpose that results in personal or business gain." In noting this, Cox opined that "the lawyers would have a field day" with the question of whether the use of Continental buddy passes was consistent with that limitation, a question very similar to the issue deferred to arbitration on March 1, 2001 in Hoffa Slate, 2001 EAD 204 (appeal pending). In this setting, we are unwilling to limit the remedy for the violation here by speculating that Kavelac would have received a "buddy pass" if he had not received the improper employer contribution, that such a pass could have been used for campaign purposes without running afoul of Continental's "no personal or business gain" limitation, and that such use would have been proper under the Rules rather than an improper employer contribution.
Accordingly, in order to remedy the violation found here, the Election Administrator orders the following:
1. The Rhoades slate shall reimburse Continental Airlines for the cost of Kavelac's airfare by paying Continental's lowest published airfare applicable to his February 3 itinerary, assuming a 14-day advance purchase. Such reimbursement shall occur by no later than March 12, 2001.
2. The Rhoades slate shall cease and desist from receiving any campaign contributions from any employer.
3. The Rhoades slate shall post the notice attached as Exhibit A on all worksite bulletin boards under the jurisdiction of Local 19 for a period of thirty (30) days from the date of posting. Posting shall commence no later than March 12, 2001.
4. By no later than March 14, 2001, the Rhoades slate shall submit an affidavit to the Election Administrator attesting to its compliance with paragraphs 1 and 3 of this order. A supplemental affidavit attesting to completion of the posting required above shall be filed by the Rhoades slate following the completion of the posting period.
An order of the Election Administrator, unless otherwise stayed, takes immediate effect against a party found to be in violation of the Rules. Lopez, 96 EAM 73 (February 13, 1996).
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 Administrator 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
Suite 1000
885 Third Avenue
New York, New York 10022
Fax: 212-751-4864
Copies of the request for hearing must be served upon all other parties, as well as upon the Election Administrator for the International Brotherhood of Teamsters, 727 15th Street NW, Tenth Floor, Washington, DC 20005 (facsimile: 202-454-1501), all within the time prescribed above. A copy of the protest must accompany the request for hearing.
William A. Wertheimer, Jr.
William A. Wertheimer, Jr.
Election Administrator
cc: Kenneth Conboy
2001 EAD 214
DISTRIBUTION LIST VIA UPS NEXT DAY AIR:
Patrick Szymanski
IBT General Counsel
25 Louisiana Ave. NW
Washington, DC 20001
Bradley T. Raymond
Finkel, Whitefield, Selik,
Raymond, Ferrara & Feldman
32300 Northwestern Highway
Suite 200
Farmington Hills, MI 48334
J. Douglas Korney
Korney & Heldt
30700 Telegraph Road
Suite 1551
Bingham Farms, MI 48025
Barbara Harvey
Penobscot Building
Suite 1800
645 Griswold
Detroit, MI 48226
Betty Grdina
Yablonski, Both & Edelman
Suite 800
1140 Connecticut Ave. NW
Washington, D.C. 20036
Tom Leedham c/o Stefan Ostrach
110 Mayfair
Eugene, OR 97404
Michael Ellison
410 York Drive
Seagoville, TX 75159
IBT Union 19
223 Wood Street
Grapevine, TX 76051
IBT Local 964
Bobby Kavelac
3150 Chester Avenue
Cleveland, OH 44114
Rodney Rhoades
2530 Marble Falls
Spring, TX 77373
Dolores C. Hall
1000 Belmont Place
Metairie, LA 70001
[1] 1,279 ballots were cast, 14 were declared void, 145 were challenged, and 1,120 were counted. The challenged ballots were not sufficient to affect the results of the election and therefore were not resolved.
NOTICE TO ALL MEMBERS OF IBT LOCAL 19
The Rules for the 2000-2001 IBT International Union Delegate and Officer Election (the "Rules") prohibit candidates from accepting any employer contribution that has the purpose, object or foreseeable effect of furthering the candidate's campaign for election.
The Election Administrator will not permit such Rules violations.
We have determined that the Rhoades slate violated the Rules by accepting free air travel from Continental Airlines. We have ordered the Rhoades slate to reimburse Continental Airlines and to cease and desist from further Rules violations.
William A. Wertheimer, Jr.
William A. Wertheimer, Jr.
Election Administrator
This is an official notice which must remain posted for 30 consecutive days and must not be defaced or altered in any manner or be covered with any other material.