IN RE: EARL WALKER, Protestor.
Protest Decision 2006 ESD 185
Issued: April 15, 2006
OES Case No. P-06-061-011306-MW
Earl Walker, principal officer and delegate candidate of Local Union 614, 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 Deal accepted an employer contribution, in violation of the Rules.
Election Supervisor representative Joe Childers investigated this protest.
Findings of Fact
The protest alleged that Mike Deal, a member of the Reduce the Dues, Restore the Pensions, UTAH slate, impermissibly used an employer fax machine to file his slate declaration form. Investigation showed that Deal's fax carried a fax header indicating that it was faxed from Pinkerton Chevrolet in Roanoke, Virginia. Deal, a carhaul driver, delivered vehicles to that location on or about January 10.
The local union's nominations meeting was held Sunday, January 8, 2006. Deal's slate prepared a slate declaration form, but Deal failed to sign the form before departing on a carhaul trip for his employer. The local union's election official told Deal to fax the slate declaration form in from the road.
Deal called Jeff Duncan, another member of the slate, and asked him to fax the form to him at a truck stop in Wytheville, Virginia. Duncan did so, and Deal signed it and faxed it back from the truck stop. He paid the truck stop $5 for use of the fax.
Duncan then called Deal back and told him he had to sign a slate declaration form that contained the signatures of all the other slate members, rather than the one he had signed. At the time of this call, Deal was at Pinkerton Chevrolet in Salem, Virginia where he was delivering cars.
Deal asked the car dealer's employees if he could pay to use the fax machine, telling them he had personal, not official, business to complete. They agreed to let him use the fax machine but refused his offer to pay, as they permit employees to use the fax machine for small faxes at no cost. He received the fax from Duncan at the car dealership, signed the form and had his signature notarized there. He then faxed the completed form back to Duncan. Deal repeated his offer to pay for the faxes and also offered to pay for the notary service, but the dealership would not accept his money. When Duncan received the fax from Deal, he took it to the union hall so that it was timely filed.
Pinkerton Chevrolet is not a Teamster employer. Deal is employed by Allied Automotive Group.
Analysis
This protest explores the intersection of the Rules' prohibition on employer contributions and candidates' submission of slate declaration forms.
The Rules prohibit contributions by employers to any candidate. Thus:
No employer may contribute, or shall be permitted to contribute, 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 are not limited to employers that have contracts with the Union; they extend to every employer, regardless of the nature of the business and include, but are not limited to, any political action organization that employs any staff; any nonprofit organization, such as a church or civic group that employs any staff; and any law firm or professional organization that employs any staff. These prohibitions extend beyond strictly monetary contributions made by an employer and include contributions or use of employer stationery, equipment, facilities and personnel.
Article XI, Section 1(b)(2).
The Rules define "campaign contribution" as "any direct or indirect contribution of money or other thing of value where the purpose, object or foreseeable effect of that contribution is to influence, positively or negatively, the election of a candidate for Convention delegate or alternate delegate or International Officer position." Definition 5. The definition expressly includes "[a]n endorsement or counter-endorsement by an individual, group of individuals, or entity." Id., subparagraph (f). Further, the definition includes "the making available for use of space, equipment, supplies or advertisements." Id., subparagraph (h).
With respect to slate formation, Article VIII, Section 1 of the Rules provides in relevant part:
(b) To form a slate, there shall be mutual consent between and among all candidates running on the slate. Such mutual consent shall be evidenced by the signing of a declaration by all members of the slate, giving the position that each candidate seeks and the name, if any, of the slate to be formed. Slate declaration forms … for International Officer nominations and elections shall be submitted to the Election Supervisor. Amended declarations may be submitted adding additional candidates, provided that the deadlines specified in Subsection (c) below are met.
Election Administrator Wertheimer stated that "[t]he purpose of the slate declaration form is to ensure that there is indeed 'mutual consent between and among all candidates running on a slate' to their doing so." McNeely, 2001 EAD 254 (March 22, 2001), aff'd, 01 EAM 55 (April 10, 2001). The Rules do not require that all original signatures appear on the same document; rather, slate members may "overcome the difficulties posed by the geographic separation of their workplaces by obtaining signatures on counterpart originals using facsimile transmissions. To hold otherwise would be to unduly restrain the right of candidates to form slates within the tight time constraints imposed for submission of slate declarations." Mohawk-Davis, 2001 EAD 117 (January 30, 2001). As the Election Administrator explained in Busalacchi, 2001 EAD 271 (March 27, 2001),
[W]e have permitted slates to be formed using multiple slate declaration forms as long as each declaration form lists the same candidates in the same order. By requiring each form to contain the names and order of all slate members, each prospective slate member can see who else will be on the slate before deciding to join. As a result, the combination of declaration forms evidences the same mutual consent ordinarily demonstrated by one form.
We DENY this protest. Deal properly established his membership on his slate by signing and faxing to Duncan the slate declaration form he received at the Wytheville truck stop, for which he paid $5 for use of the fax machine. Our precedents establish that Deal was not required to sign the form signed by all the other slate members; it was sufficient that he signed a form containing the other slate members' names. The second slate declaration form Deal signed was therefore unnecessary, even though it was the one submitted to the local union, and the means by which the form was transmitted and whether Deal paid for its transmittal are irrelevant.
Even had the form faxed from the car dealer been the only one Deal signed, we would not find an impermissible employer contribution on the facts presented here. Deal's repeated offers to pay for use of the fax machine were sufficient to fulfill his obligation under the Rules to pay for use of employer-owned equipment. Although Deal previously had paid $5 for receipt and sending of a single page at the Wytheville truck stop, the car dealer regarded the receipt and transmission of a single page as having no cost. In doing so, the car dealer extended to business invitee Deal the same benefit it granted to its employees to use the fax machine for small jobs without charge. Under these circumstances, the car dealer's refusal to charge for use of the fax machine was commercially reasonable, and its refusal to accept payment from Deal was not a contribution the Rules prohibit. Our advisory on campaign contributions states that a discount on services is not a prohibited campaign contribution, so long as the discount is made available to customers of the business generally and was not created for the individual. Advisory on Campaign Contributions, Expenditures and Disclosure at 7-8 (January 2006). Providing a one-page courtesy fax service to transmit a slate declaration (not campaign material) in this case, is consistent with this guidance because the dealership extends this courtesy generally.1 We express no opinion on whether the same result would be reached for a fax transmission of a lengthy document, or a blast fax to multiple recipients.
The free provision of notary service also does not constitute an impermissible employer contribution, as notarization of signatures on slate declaration forms is not required. Notarizing the form, then, did not constitute a contribution to Deal's campaign.
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, 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 185
1 We also note that use of a local union fax machine - generally prohibited - is allowed to file a protest. See, e.g., Bennett, 2006 ESD 99 (February 26, 2006), and Koch, 2006 ESD 169 (April 3, 2006). Such Rules-compliance activity, which may make use of a union resource permissible, is similar to the activity at issue here.
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
Daniel E. Clifton
Lewis, Clifton & Nikolaidis, P.C.
275 Seventh Avenue, Suite 2300
New York, NY 10001
dclifton@lcnlaw.com
Stephen Ostrach
1863 Pioneer Parkway East, #217
Springfield, OR 97477-3907
saostrach@gmail.com
Earl Walker, President
IBT Local Union 614
131 University Drive
Pontiac, MI 48342
Mike Deal
2072 Eberly Road
Flint, MI 48532
Joe F. Childers
201 West Short Street, Suite 310
Lexington, KY 40507
childerslaw@yahoo.com
Bill Broberg
1108 Fincastle Road
Lexington, KY 40502
wcbroberg@aol.com
Jeffrey Ellison
510 Highland Avenue, #325
Milford, MI 48381
EllisonEsq@aol.com