IN RE: LORNE SMITH, Protestor.
Protest Decision 2011 ESD 162
Issued: March 14, 2011
OES Case No. P-128-021111-NE
Lorne Smith, member of Local Union 340 and delegate candidate in the local union's delegates and alternate delegates election, filed a pre-election protest pursuant to Article XIII, Section 2(b) of the Rules for the 2010-2011 IBT International Union Delegate and Officer Election ("Rules"). The protest alleged that three local union business agents campaigned on time paid for by the union, in violation of the Rules.
Election Supervisor representative Deborah Schaaf investigated this protest.
Findings of Fact
Local Union 340 is entitled to elect 5 delegates and 2 alternate delegates to the IBT convention. It held its nominations meeting for that election on January 9, 2011. Protestor Smith was nominated for delegate as part of a full slate of candidates. The local union's secretary-treasurer, Carl Guinard, is a delegate candidate on an opposing slate. Ballots were mailed February 11, 2011.
On February 9, two days before ballots were mailed, three business agents traveled to the UPS Bangor facility for a pre-shift morning meeting of drivers. The agents were Ken Eaton, president of Local Union 340 and candidate for delegate on the Maine Teamster Team slate; Alan Churchill, candidate for alternate delegate on the Maine Teamster Team slate; and Andy Lebel, chair of the local union election committee. They arrived without notice at approximately 8 a.m., introduced themselves informally to members arriving for their shift, distributed grievance settlement checks to six or seven members, and attended a short drivers' meeting. Later in the day, they met with UPS management to resolve grievances.
Protestor Smith claimed that the visit was a pretext to publicize to UPS Bangor employees the accomplishments of the union and to politicize the distribution of the grievance checks to win votes in the delegates election. He maintained the agents used their union positions to gain access to members in a setting where Smith and other candidates on his slate were not permitted, and their presence constituted campaigning for the delegates election. Smith asserted that the local union president had previously visited UPS Bangor, a two hour drive from the local union hall in Portland, only for a major discharge grievance, and had never brought two business agents with him. Further, stewards had distributed grievance settlement checks with fanfare to affected members in past cases, in contrast to the February 9 distribution at a meeting of all shift drivers. According to Smith, a morning meeting of drivers had not been held for years, and never without notice even to the stewards.
Eaton told our investigator he vacated his post as business agent when he assumed the position as local union president and principal officer in December 2010, following the sudden death of the former president. Eaton hired Lebel on January 31, 2011 to take over representation of all the Maine UPS facilities. Churchill was reassigned from UPS to Eaton's former assignment as business agent for the public sector employees in Maine.
Eaton decided to visit UPS Bangor on February 9 because he had a previously scheduled appointment with the Bangor assistant city manager that day. They were to discuss an upcoming election regarding the dispatch unit of the Bangor police department that has implications for Local Union 340 members. Though previously scheduled for February 9, Eaton only received final confirmation that the meeting would take place on February 8. (Eaton provided email proof of this appointment, and the late confirmation, to our investigator.) Eaton also had a union-business meeting in Machias on February 9, which is some 90 miles further east of Bangor. Since he was going to Bangor for other union business, he decided it would be a good opportunity to visit UPS Bangor the same day.
Eaton said he wanted to hand out the grievance checks, though not all were ready for distribution. The members had been waiting since December for their checks, which were held up to check accuracy and make necessary changes. He also saw the visit as a chance to introduce himself as the new president, and to introduce Lebel to the members he would be representing as business agent. Churchill came because he intimiately understood the cluster grievances and the issues surrounding the 9-5 checks.
Eaton said his party arrived at UPS Bangor around 8a.m. and informed center manager Dale Croft they were in the building. They told Croft they had checks to distribute and asked if they could return in the afternoon to discuss outstanding grievances. Croft agreed to meet them at 1 p.m.
Drivers arrived around 8:30 a.m.. Churchill pulled aside the individual drivers who were getting checks so he could explain what each check was for. Eaton and Lebel introduced themselves to other drivers.
Although Eaton did not know it in advance, steward Shawn Ireland had called a drivers' meeting for that morning to explain the 9-5 issue and the outstanding grievances. When Ireland saw Eaton, he asked Eaton to attend the meeting. Eaton did so, explaining the 9-5 rules and one or two other contract issues. The meeting lasted no more than 10 minutes; about 35 members attended. No grievance checks were distributed during the drivers' meeting. The delegate election process was not discussed. Eaton, Lebel and Churchill then left the facility, and returned later in the day to meet with Croft.
Ireland confirmed to our investigator that he, not Eaton, called the drivers' meeting on February 9. He set the meeting for a time before the shift started, which not uncommon when there are issues to be addresses. Ireland confirmed he did not know the union officials would be at the facility, but when they appeared he invited them to be introduced and asked them to provide information about the 9-5 issues in grievances. Ireland agreed that the drivers' meeting lasted no more than 10 minutes and that no grievance checks were distributed during the meeting.
Ireland also confirmed Smith's contention that the visit was unusual. Ireland said he has never known a president and two business agents to visit UPS Bangor, especially without notice. Ireland said he found it "very odd." He said, "It's been a sore subject with us -- lack of visits from BA's on regular basis." Ireland stated there was no discussion of the delegates election at the drivers' meeting. Ireland said he was not around before the drivers' meeting, and did not know what might have been discussed with the drivers individually.
Member Tim Kenney arrived a few minutes late for the drivers' meeting. He did not know who called the meeting. The topics discussed were the 9-5 rules and the overdue grievance checks, but the actual checks were not handed out at the meeting. The delegates election was not discussed. Kenney said he has never seen a visit to UPS Bangor by the local union president and two business agents in his 23 years at that facility. Kenney reported that during the first union meeting after Eaton became president, Kenney asked why business agents never came to Bangor. According to Kenney, Eaton replied that it was difficult to get access to that facility. Kenney told our investigator he found it odd that union officials did not make arrangements to visit the facility but just "showed up" so soon after that. He said, "I just think it's very strange, a president and two business agents showing up. I know what they were doing. I feel very strongly that they were campaigning that day."
Analysis
Article XI, Section (1)(b)(3) of the Rules prohibit a union 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." Section (1)(b)(7) of the same article declares that "[n]o member may campaign for him/herself or for any other candidate during time that is paid for by the Union or by any employer."
However, restrictions on campaigning cannot be read so broadly as to restrict the right of union officers to conduct their official business. (Martin, P10 (July 27, 1995), aff'd, 95 EAM 18 (October 2, 1995). As explained in McNeely, 2001 EAD 485 (October 2, 2001), aff'd, 01 EAM 97 (October 12, 2001):
Martin recognizes that union officers and officials have a "right and responsibility to exercise the powers of their office and to advise and report to the membership on issues of general concern" (quoting Camarata v. International B'hd. of Teamsters, 478 F. Supp. 321, 330 (D.D.C. 1979), aff'd, 108 LRRM 2924 (D.C. Cir. 1981)). In addition, Martin holds that:
… an otherwise acceptable communication may be considered campaigning if it goes on to make a connection with the election or election process, if it involves excessive direct or indirect personal attacks on candidates, or, alternatively, involves lavish praise of candidates. Otherwise, legitimate coverage of the activities of a union official running for office may constitute campaigning if it is excessive.
Further, where the tone and content of union-financed communication are politically neutral, as here, a Rules violation will generally not be found based solely on the timing of it. As the Election Appeals Master explained in Hicks, 06 EAM 22 (March 15, 2006), affirming 2006 ESD 110 (March 2, 2006), local union officials "should not, and cannot, be constrained by the Rules from discharging their responsibilities to the membership in reporting on matters of vital interest, as long as the reportage is politically neutral." Laszlo, 2011 ESD 147 (March 2, 2011).
In this case, the union officials' visit to UPS Bangor and their conduct while there was well within the sphere of official union business. Eaton provided a documented explanation of the reasons for visiting the facility. Though the visit was unusual, its purpose and object were to introduce new union officials and personnel, to explain circumstances surrounding grievances and grievance checks, to meet with UPS management, and to attend other union meetings in Bangor and elsewhere. No evidence was presented that any campaign activity occurred. Therefore, any foreseeable effect on the outcome of the delegates election was incidental, and not a violation of the Rules.
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:
Kenneth Conboy
Election Appeals Master
Latham & Watkins
885 Third Avenue, Suite 1000
New York, New York 10022
Fax: (212) 751-4864
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, 1801 K Street, N.W., Suite 421 L, Washington, D.C. 20006, all within the time prescribed above. A copy of the protest must accompany the request for hearing.
Richard W. Mark
Election Supervisor
cc: Kenneth Conboy
2011 ESD 162
DISTRIBUTION LIST (BY EMAIL UNLESS OTHERWISE SPECIFIED):
Bradley T. Raymond, General Counsel
International Brotherhood of Teamsters
25 Louisiana Avenue, N.W.
Washington, D.C. 20001
braymond@teamster.org
David J. Hoffa
Hoffa Hall 2011
1100 Connecticut Avenue, N.W., Ste. 730
Washington, D.C. 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
Fred Gegare
P.O. Box 9663
Green Bay, WI 54308-9663
kirchmanb@yahoo.com
Scott D. Soldon
3541 N. Summit Avenue
Shorewood, WI 53211
scottsoldon@gmail.com
Fred Zuckerman, President
Teamsters Local Union 89
3813 Taylor Blvd.
Louisville, KY 40215
fredzuckerman@aol.com
Robert M. Colone, Esq.
P.O. Box 272
Sellersburg, IN 47172-0272
rmcolone@hotmail.com
Carl Biers
Box 424, 315 Flatbush Avenue
Brooklyn, NY 11217
info@SandyPope2011.org
Julian Gonzalez
Lewis, Clifton & Nikolaidis, P.C.
350 Seventh Avenue, Suite 1800
New York, NY 10001-5013
jgonzalez@lcnlaw.com
Lorne Smith
91 Windham Center Road
Windham, ME 04062
lwsmith25@yahoo.com
Ken Eaton, President
Teamsters Local Union 340
144 Thaddeus Street
South Portland, ME 04106
ken@teamsterslocal340.org
Carl Guinard, Secretary-Treasurer
Teamsters Local Union 340
144 Thaddeus Street
South Portland, ME 04106
carl@teamsterslocal340.org
Deborah Schaaf
1118 Coddington Road
Ithaca, NY 14850
debschaaf33@gmail.com
David F. Reilly
22 West Main Street
Wickford, RI 02852
dreilly@dfresq.com
Kathryn Naylor
Office of the Election Supervisor
1801 K Street, N.W., Suite 421 L
Washington, D.C. 20006
knaylor@ibtvote.org
Jeffrey Ellison
214 S. Main Street, Ste. 210
Ann Arbor, MI 48104
EllisonEsq@aol.com
