IN RE: BETTY JENNE,
Protest Decision 2000 EAD 64
Issued: December 14, 2000
OEA Case No. PR1103101WE
Betty Jenne, a member of Local 760, 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")against Local 760. The protestor alleges that Local 760 improperly provided legal assistance to protestor Rick Lee in Protest Case No. PR091801WE by paying the legal fees for attorney Kenneth Pedersen to represent Lee in his protest. Jenne alleges a violation of Article VII, Section 11(c) of the Rules.
Election Administrator representative Lois Tuttle investigated the protest.
Findings of Fact
Lee filed his protest in Case No. PR091801WE on September 18, 2000. The protest challenged the nominations of nine candidates for International Convention delegate, including Jenne. Lee is the president of Local 760. The protest was granted in part and denied in part. 2000 EAD 31 (October 2, 2000). Lee appealed, and on October 25, 2000, the Election Appeals Master affirmed. 00 EAM 10. Pedersen represented Lee in the appeal.
Jenne's protest followed. She alleged that Pedersen's law firm represents Local 760, that Lee filed his protest on behalf of himself, rather than Local 760, and that, upon information and belief, Pedersen's fees for the appeal to the Election Appeals Master were paid by Local 760.
Our investigation revealed that Pedersen's legal fees were paid by Lee rather than Local 760. Pedersen provided the Election Administrator with his invoice to Lee for his services. The invoice indicated that Pedersen billed Lee for two hours of work on Lee's protest on October 3, 2000 and October 23, 2000. The bill was mailed by Pedersen to Lee before the filing of the instant protest. Pedersen affirmed that he did not bill Local 760 for any time in relation to the Lee protest. Jenne provided no evidence to the contrary.
Bradley Raymond, counsel for the IBT, submitted a statement on November 14, 2000, arguing that i) "[s]o far as we can determine, Ms. Jenne points to no evidence specifically suggesting that Local 760 paid for or otherwise provided legal services for the protester in Lee, 2000 EAD 31," and ii) "[i]n either case, the Rules make ample provision, and indeed encourage, attorneys and accountants to provide in kind professional services in connection with the 2000-2001 election process. This, in the IBT's view, enhances the goal of ensuring compliance with the Rules throughout the Election process."
Analysis
Filing a protest "is protected, and does not constitute support for a candidate or campaigning under the Rules." Scalf, P97 (August 16, 1995); Kieffer, P360 (March 19, 1996)(use of union fax machine to file protest no violation).
However, prior election rules decisions have recognized limits on this right insofar as the expenditure of union funds is concerned. Thus, use of union funds to file or process a protest will constitute proper use of such funds only when the protest activity furthers the independent, institutional interest of the union. McGinnis, 91 EAM 150 (May 16, 1991); Furst, P711 (July 15, 1991), aff'd in relevant part, 91 EAM 172 (July 29, 1991). Accordingly, unions may not use their funds to finance protest activity that advances or damages a candidacy in cases where the institutional interests of the union are not implicated. Marciel, P768 (May 20, 1991), aff'd sub nom Moerler, 91 EAM 153 (May 30, 1991).
The distinctions drawn in McGinnis and reaffirmed inFurst between the permissible and impermissible use of union-paid attorneys and other professionals is instructive. In McGinnis, the local's attorney had spent time observing the ballot count, and also prepared submissions on behalf of the winning incumbent slate in response to post-election protests filed by the opposing slate. As for the time spent observing the ballots it was determined that:
The local union [had] an institutional interest in assuring the integrity of the election process affecting the Local. That interest may be served permissibly by retaining an attorney to represent the Local at the counting of the ballots.
As for the other conduct of the attorney it was held that his:
[P]articipation in the post-election protest was not similarly in the service of the Local Union as an institution. A review of the submissions filed by [the attorney] demonstrates that he took a clearly partisan position and incontrovertibly engaged in advocacy on behalf of particular candidates. This conduct, it must be concluded, falls within the proscription of the Rules.
Furst, supra, 91 EAM 172, p. 3, quoting McGinnis (emphasis in original).
As summarized in Furst: a union cannot "escape the Election Rules' prohibition on improper campaigning [by] hid[ing] behind the guise that it is simply ensuring the proper implementation of the Election Rules when it embroils itself in the protest process, when in reality it is seeking to aid the candidacy of an individual. Such attempts, when challenged, will surely be revealed and the appropriate sanction will be levied." Id., 91 EAM 172, p. 6.
Similarly, in Moerler, 91 EAM 153 (May 30, 1991), a slate of candidates who were found to have violated the Election Rules were ordered to reimburse a local for the local's attorney's involvement in a pre-election protest. There it was found that despite that fact that the local was not implicated in the protest "in any manner" the local's attorney argued on behalf of the slate in an attempt to reverse the Election Officer's remedy.
In the present case, the facts establish that local union funds were not used to finance Lee's partially successful attack on the nominations of delegate candidates under the Rules. We thus need not address the issue here of whether Local 767 would have been justified in using its funds to pursue the various successful and unsuccessful allegations raised by Lee in his protest.
For the foregoing reasons, the protest is DENIED.
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, 10th Floor, Washington, DC 20005, all within the time period 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
Chris Mrak
2000EAD64
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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
645 Griswold
Penobscot Building
Suite 1800
Detroit, MI 48226
Tom Leedham c/o Stefan Ostrach
110 Mayfair
Eugene, OR 97404
Betty Grdina
Yablonski, Both & Edelman
1140 Connecticut Ave. NW
Washington, DC 20036
Betty Jenne
707 W. 5th Ave.
Kennewick, WA 99336
Rick Lee
4310 Joe Miller Road
Malaga, WA 98828