IN RE: J.D. JACKSON and MATT TRUPIANO, Protestors.
Protest Decision 2006 ESD 124
Issued: April 17, 2006
OES Case No. P-06-132-020806-MW
(See also Election Appeals Master decision 06 EAM 36)
J.D. Jackson and Matt Trupiano, members and delegate candidates from Local Union 299, 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"). The protest alleged that Mike Gluba, a member of Moore's Members First slate (MMF slate), tricked two members of Local Union 299 into posing for a photograph to be used in an MMF slate campaign flyer while on employer work time and premises, in violation of the Rules. The protest further alleged that Gluba confiscated flyers supporting the Teamsters for Change slate (TC slate) from members who had just received them.
Election Supervisor representative Joe Childers investigated this protest.
Findings of Fact
Lorraine Riethmiller told our investigator that, on or about February 3, 2006, she and Ann Jefferson, both long-time Hertz employees and members of Local Union 299, were approached by Mike Gluba around 7:10 a.m. after they had clocked in to work. They were wearing their Hertz uniforms, and he asked if he could have a picture taken with them. He did not tell them what the picture would be used for, and when Riethmiller asked if it was going to be used for a "newsletter or something," he said "yes."
About one week later, Riethmiller learned that the photo had been used in MMF slate campaign literature that was placed on employees' cars in the employee parking lot. The flyer carried the headline, "The Moore Members First Slate Has Stood Up for Us … Now its our turn to stand up for them!" The flyer contained five photos, including that of Gluba, Riethmiller and Johnson, and touted the accomplishments of the MMF slate. The photo of Gluba, Riethmiller and Johnson showed the two Hertz employees in their employer-provided uniforms standing in front of a Hertz sign. The caption of that photo states, "Hertz members ratify best contract ever."
Riethmiller told our investigator that she did not care if her photo was used in a union newsletter but that she was "livid" about it being used in campaign literature without her knowledge or consent. She stated that, in addition to the flyer being placed on cars, it was passed out to employees in the parking lot, posted on the bulletin board at work, and mailed to all members of the local union.
Riethmiller further told our investigator that Gluba and Roy Gross, another member of the MMF slate, came to her work very early one morning after this protest was filed. They asked her why she filed the protest and said that Gluba had told her the photo would be used in campaign literature. She replied she did not file the protest and that, contrary to their assertions now, Gluba had not told her the photo would be in campaign literature at the time the photo was taken. Gluba and Gross continued with negative comments about protestor Trupiano and the TC slate, and she stopped them and told them she was not interested in hearing anything negative about anyone. She told them again she did not appreciate their using her picture in campaign photos, but they had already mailed the flyer containing the photo. Reithmiller told our investigator that, after this early morning meeting with Gluba and Gross, she called Gluba and told him not to use the photo for campaign purposes; at a later date, the flyer containing the photo was placed on cars in the employee parking lot.
Ann Jefferson corroborated Reithmiller's evidence with respect to Gluba's request that they pose with him in a photo.
Mike Gluba told our investigator that he told Jefferson and Riethmiller that the photo would in fact be used in campaign literature; he further stated that they were agreeable to that use because they were both supporters of his slate. He did not ask the Hertz management if he could take a photograph of the women while on duty and use it in campaign literature. He said the two women were upset that the instant protest had been filed over this matter and not that the photo had been used in MMF slate literature.
Our investigation found no evidence to support the protest's second allegation that Gluba impermissibly confiscated campaign literature of the opposing slate from rank-and-file members.
Analysis
Article VII, Section 12(a) of the Rules provides the following, in relevant part:
All Union members retain the right to participate in campaign activities, including the right to run or office, to support or oppose any candidate, to aid or campaign for any candidate, and to make personal campaign contributions. …
Implicit in this guarantee of rights to participate in campaign activities is the right to refrain from such activities. Just as Gluba had the right to express support for his slate, Riethmiller and Jefferson had the equivalent right under the Rules not to express support for Gluba's slate or any other slate or candidate. We find that Gluba misled Riethmiller and Jefferson to the belief that the photo in which they appeared would be used for a union publication. We credit Riethmiller's statement that she asked Gluba if the photo would be used in a "newsletter or something." We further find that the reasonable meaning of Riethmiller's phrase was "newsletter or something [similar]." We further find that Gluba responded affirmatively. We find that Gluba intended that the photo would be used in campaign literature when he had the photo taken, and that campaign literature did not constitute a "newsletter or something [similar]." In making these findings, we credit Riethmiller's statements to our investigator, as corroborated by Jefferson, over the denial by Gluba. Riethmiller and Jefferson have no apparent self-interest to mislead us, and Riethmiller's vehemence at being misled appears sincere. On the other hand, Gluba has a strong self-interest in denying the allegation this protest presents, and his denial is unconvincing.
Having made these findings, however, we DENY the protest. On the facts presented here, Riethmiller and Jefferson were not compelled to participate in campaign activity against their wishes. Rather, a photo they were led to believe would be used for another purpose was instead used in a campaign flyer. Even were we to assume that Gluba hand-picked Riethmiller and Jefferson as long-term, respected rank-and-file members to appear in a photo he would use for campaign purposes, the Rules do not regulate the content of his campaign literature. As we emphasized in Sandford, 2006 ESD 142 (April 3, 2006), well-established precedent makes clear that the Rules are not intended to "ensure the accuracy and truth of campaign materials." As such, if Gluba intended to lead members to believe that Riethmiller and Jefferson supported the MMF slate even though they never expressed such support, the Rules do not prevent Gluba from making such a claim.
For these reasons, we DENY the 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, 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
2006 ESD 124
DISTRIBUTION LIST (BY EMAIL UNLESS OTHERWISE SPECIFIED):
Bradley T. Raymond, General Counsel
International Brotherhood of Teamsters
25 Louisiana Avenue, NW
Washington, DC 20001-2198
braymond@teamster.org
Sarah Riger, Staff Attorney
International Brotherhood of Teamsters
25 Louisiana Avenue, NW
Washington, DC 20001-2198
sriger@teamster.org
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
blmharvey@sbcglobal.net
Ken Paff
Teamsters for a Democratic Union
P.O. Box 10128
Detroit, MI 48210
ken@tdu.org
Judith Brown Chomsky
P.O. Box 29726
Elkins Park, PA 19027
jchomsky@igc.org
Stephen Ostrach
1863 Pioneer Parkway East, #217
Springfield, OR 97477-3907
saostrach@gmail.com
J.D. Jackson
2741 Trumbull Ave.
Detroit, MI 48216
Matt Trupiano
13256 Homefield
Romulus, MI 48174
Mike Gluba
12520 Murray
Taylor, MI 48180
Kevin Moore, President
Local Union 299
2741 Trumbull Avenue
Detroit, MI 48216
Joe F. Childers
201 West Short Street, Suite 310
Lexington, KY 40507
childerslaw@yahoo.com
William C. "Bill" Broberg
1108 Fincastle Road
Lexington, KY 40502
wcbroberg@aol.com
Jeffrey Ellison
510 Highland Avenue, #325
Milford, MI 48381
EllisonEsq@aol.com