IN RE: DAVID THORNSBERRY, Protestor.
Protest Decision 2005 ESD 27
Issued: November 14, 2005
OES Case No. P-05-023-101805-MW
David Thornsberry, a member and delegate candidate of Local Union 89, filed a pre-election protest pursuant to Article XIII, Section 2(b) of the Rules for the 2005-2006 IBT International Union Delegate and Officer Election ("Rules"). He alleged that the United Rank & File ("UR&F") slate campaign leaflets he repeatedly posted on the local union bulletin board were removed shortly after they were posted, in violation of the Rules.
Election Supervisor representative Joe F. Childers investigated this protest.
Findings of Fact
The Rules require that each local shall "establish a literature table and/or bulletin board in a public area of each Local Union facility which is open to members for the nondiscriminatory distribution/display of campaign literature for the 2006 IBT International Union Officer Election." Article VII, Section 7(h). Pursuant to this provision, the amended local union plan for Local 89 designated a bulletin board adjacent to the front door of the local union hall as the campaign literature bulletin board.
On October 11, Thornsberry placed three pieces of UR&F campaign literature on that board. When he passed the board twenty minutes later, he noticed that the campaign literature had been removed. Thornsberry then placed five additional pieces of literature on the bulletin board and left the hall.
On his next visit to the hall, on October 14, Thornsberry observed that all literature of the UR&F slate had been removed from the bulletin board. This protest followed.
On September 22, 2005, we posted to our website, www.ibtvote.org, an advisory regarding campaign literature tables and bulletin boards. The advisory sets out the same procedures and guidance, in substance, as the advisory issued on this same subject by the Election Administrator for the 2000-2001 IBT International Union Delegate and Officer Election. The September 22 advisory repeats the Rules' requirement that each local union establish such a table or board. The advisory provides guidance to local unions on procedures to use is setting up and policing the table or board, including the following:
Each local must assign a staff member or union officer (who is not a candidate) to make an inspection of the literature table or bulletin board at least twice weekly to assure that copies of both slates' campaign literature are available. Each inspection should be logged in as described below. Locals should make sure that members take only one copy of any piece of literature. They should keep a master copy of each piece of literature submitted so that any pieces improperly removed or defaced are promptly replaced. They should not charge candidates or slates for replacing literature in these circumstances.
Each local must create and maintain a log with the following information: 1) date campaign literature was provided to local; 2) fax number of the "sending" fax machine or identifying mark to verify that it was legitimately sent or confirmation that mailed material came from an authorized candidate or slate representative; 3) name of person at the local assigned to the job of table placement or posting; 4) date and time literature placed on table or posted on board; 5) number of copies made; 6) date and amount charged to slate, if applicable; 7) date and result of daily inspection; and 8) any problems with the maintenance of the literature on the tables. The responsible person should correct any problems as they occur and certify that master copies of the literature are being maintained.
The advisory also requires that the following notice be affixed to each campaign literature table and bulletin board, viz.
This literature table/bulletin board is reserved exclusively for distribution/display of campaign literature for the 2006 IBT International Union Officer Election. This literature table/bulletin board should include campaign literature from all candidates. If it does not, please report this to the Election Administrator at 1-888-IBT-2006.
The ideas expressed in these materials are solely those of the candidates and do not reflect the views of the International Brotherhood of Teamsters or any of its locals. Nor has anyone edited these materials. The messages contained in these materials come directly from the candidates to IBT members.
Local 89 lawyer Robert Colone told our investigator that, prior to the filing of this protest, the local was not aware of this advisory. Accordingly, the local had not placed the required notice on the bulletin board or assigned a staff member or union officer to inspect the bulletin board to insure compliance with the advisory and the Rules. Because no such person had been designated by the local union, Thornsberry did not supply a "master copy" of the UR&F literature to that person.
No evidence was presented or discovered concerning the identity of the person(s) who removed the UR&F literature from the bulletin board or whether the intent in doing so was to interfere with campaign rights of Thornsberry or the UR&F slate.
On October 27, 2005, the ballots were tallied in the delegate and alternate delegate election. Members of the UR&F slate were elected to all delegate and alternate delegate positions.
Analysis
As indicated, the Rules require that each local union establish and maintain in its hall a literature table or bulletin board for distribution and/or display of campaign literature by the candidates and slates for the local union delegate and alternate delegate election and for the International Officer election. Local 89 complied with this requirement by establishing the bulletin board adjacent to the front entrance to its hall.
However, the local union failed to comply with Election Supervisor's advisory issued September 22 concerning maintenance and policing of the bulletin board. In particular, the local union did not post the required notice or inspect the board periodically and replace campaign literature that had been improperly removed from the board. Likewise, the local union did not designate a staff member to perform this function and receive "master copies" of literature from candidates and slates.
The local union defends its failure by asserting that it was unaware of the requirements of the advisory. That response misses the point because the Rules, published in May 2005 and disseminated to each local union at that time, set out the general requirement for maintaining a campaign literature table or bulletin board. Even without the advisory, the local union was responsible for implementing that provision. The designation of a local union staff person to police the bulletin board, and to be accountable for compliance is nothing more than what the Rules alone require. The local union could also have looked to the Election Administrator's advisory from the previous election as a model for specific guidance on implementing the provision. Indeed, the September 22, 2005 advisory repeats, in substance, the guidance on policing literature tables that the Election Administrator announced in that election. In short, the local union does not have an excuse for not being able to devise reasonable steps to fulfill its obligation to implement the campaign literature table provision of the Rules.
The local union also asserts that the protest is untimely filed. Under Article XIII, Section 2(b) of the Rules, a pre-election protest must be filed within two days of knowledge of the facts giving rise to the protest or it is waived. We have previously recognized that this limitations period is prudential rather than jurisdictional. Ruscigno, P144 (October 4, 1995), aff'd, 95 EAM 25 (October 18, 1995). Here, Thornsberry remedied the improper removal of UR&F campaign literature on October 11 by promptly reposting it. The activity protested here was discovered by Thornsberry on Friday, October 14. Although we docketed his protest on October 18, it was faxed to our offices on Monday, October 17. The local union asserts that the protest is untimely if it concerns an alleged violation that occurred prior to October 15. We will not construe the limitations period so strictly. If the deadline for submitting a protest falls on a date that our offices are not open (here, Sunday, October 16), the limitations period is extended to the next business day. Accordingly, we deem this protest timely filed.
The protestor urges that we eliminate the requirement of campaign literature tables and bulletin boards from the Rules. Arguing that it is unrealistic to expect local union officers to police such tables and boards fairly where those officials are themselves candidates or otherwise partisan, the protestor predicts that discrimination undoubtedly will occur in favor of incumbent officers' slates and could ultimately void the International officer election. In the alternative, the protestor urges that we undertake to notify all candidates for delegate, alternate delegate, and International office of their rights and the local unions' responsibilities under the rule.
Although we have authority, pursuant to Article I, to amend the Rules in order "to ensure fair, honest, open and informed elections," that authority is "subject to the 2006 Election Agreement." We do not have the sole authority, under that agreement, simply to remove the campaign literature table and bulletin board provision from the Rules. The IBT and the Government stipulated to a procedure for issuing the Rules, as follows:
The 2006 IBT Election shall be conducted in accordance with election rules (the "2006 Election Rules"), which shall be jointly agreed upon by the parties following comments by IBT members and any interested parties . . . . After the parties have jointly agreed upon the 2006 Election Rules, they shall submit the 2006 Election Rules to the Court for its consideration and approval . . . . Following approval by the Court, the 2006 Election Rules may be modified or supplemented by mutual consent of the 2006 Election Supervisor and the parties. In the event the 2006 Election Supervisor and the parties agree to modify or supplement the 2006 Election Rules, the proposed change(s) shall be submitted to the Court for its consideration and approval.
United States v. IBT, Stipulation and Order, ¶ 4 (March 18, 2005). The Election Supervisor cannot, in the course of a protest ruling, eliminate particular provisions of the Rules.
Moreover, the campaign literature table provision is consistent with the agreement of the IBT and the Government that the 2006 IBT Election "should be fair, free, democratic and informed." United States v. IBT, Stipulation and Order, 7th "Whereas" clause (March 18, 2005). When followed, this provision serves to increase voter awareness of the identities and positions of the respective candidates and therefore promotes the goal of informing the IBT electorate. The advisory sets out a reasonable means for overseeing enforcement of this provision. We therefore decline the protestor's request that we notify all candidates of their rights to utilize campaign literature tables and bulletin boards in local union halls. Just as Local 89 here is presumed to know and abide by the Rules, so too are candidates who seek election under the Rules.
With the Rules' recent approval by the United States District Court, we are mailing to each local union the advisory we previously posted on our website. Further, we are implementing our enforcement of the advisory's requirement that each local union complete and submit to our offices Election Supervisor Form 24, which requires the local union to identify the means by which the local will enforce the advisory's provisions concerning literature tables and bulletin boards.
Under Article XIII, Section 2(f)(2) of the Rules, we treat this protest as a post-election protest pursuant to Article XIII, Section 3(b). See, e.g., Sylvester, 2001 EAD 326 (April 24, 2001); and Byers, 2001 EAD 291 (March 31, 2001). Section 3(b) states that post-election protests such as this one "shall only be considered and remedied if the alleged violation may have affected the outcome of the election." Although we have determined that the local union violated our advisory implementing Article VII, Section 7(h) by failing to post the required notice and to designate an individual to police the bulletin board, we DENY the protest nonetheless because the UR&F slate won all delegate and alternate delegate positions. We note, however, that the local union has an ongoing obligation to maintain the campaign bulletin board in accordance with the requirements of our advisory until such time the results of the International Officer election are certified. We will not hesitate to order an appropriate remedy for further violation of Article VII, Section 7(h) or the advisory that implements that provision.
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
Suite 1000
885 Third Avenue
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, 1725 K Street, N.W., Suite 1400, Washington, D.C. 20007-5135, 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
2005 ESD 27
DISTRIBUTION LIST (BY EMAIL UNLESS OTHERWISE SPECIFIED):
Patrick J. Szymanski
General Counsel
International Brotherhood of Teamsters
25 Louisiana Avenue, N.W.
Washington, D.C. 20001
pszymanski@teamster.org
Bradley T. Raymond
Finkel, Whitefield, Selik, Raymond, Ferrara & Feldman
32300 Northwestern Highway
Suite 200
Farmington Hills, MI 48334
braymond@fwslaw.com
David J. Hoffa, Esq.
Hoffa 2006
30300 Northwestern Highway, Suite 324
Farmington Hills, MI 48834
David@hoffapllc.com
Barbara Harvey
645 Griswold Street
Suite 3060
Detroit, MI 48226
barbaraharvey@comcast.net
Ken Paff
Teamsters for a Democratic Union
P.O. Box 10128
Detroit, MI 48210
ken@tdu.org
Stephen Ostrach
1863 Pioneer Parkway East, #217
Springfield, OR 97477-3907
saostrach@gmail.com
Fred Zuckerman, President
Teamsters Local Union 89
3813 Taylor Blvd.
Louisville, KY 40215
fzuckerman@teamsters89.com
Robert Colone
Teamsters Local Union 89
3813 Taylor Blvd.
Louisville, KY 40215
rmcolone@teamsters89.com
David Thornsberry
785 Kingswood Drive
Taylorsville, KY 40071
davidthorny@msn.com
United Rank & File Slate
P.O. Box 991175
Louisville, KY 40269-1175
Rankandfile2005@msn.com
Ann Curry Thompson
Kelman Loria, PLLC
660 Woodward Avenue, Suite 2300
Detroit, MI 48226
acthom@kelmanloria.com
Joe F. Childers
201 West Short Street, Suite 310
Lexington, KY 40507
childerslaw@yahoo.com
Jeffrey Ellison
510 Highland Avenue, #325
Milford, MI 48381
EllisonEsq@aol.com