IN RE: DIANE BOLTON, Protestor.
Protest Decision 2006 ESD 249
Issued: May 16, 2006
OES Case Nos. P-06-145-031506-HQ
Diane Bolton, a member of Local Union 174 and a candidate for delegate on the Dan Scott Membership Power Slate ("Scott slate"), 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 the slate of candidates running in opposition to the Scott slate, the Rick Hicks 2006 Teamster 4 Leadership Slate ("Hicks slate"), accepted in-kind contributions from IBT Joint Council 28, in violation of the Rules.
Election Supervisor representative Christine Mrak investigated this protest.
Findings of Fact
In February 2006, the Hicks slate conducted a campaign to members of Local Union 174. The campaign material was designed to resemble the Joint Council 28 newsletter, Washington Teamster, and contained a cover photo which had appeared in the Summer 2005 issue of Washington Teamster. In addition, the campaign material was designed and produced by Bill McCarthy, the same person who designs and produces the joint council newsletter.
Protestor Bolton alleged that McCarthy is a former employee of Local Union 174 and is presently employed by Joint Council 28. She contends that the use of a photo that once appeared in the joint council newsletter was either an illegal appropriation by the Hicks slate of an asset of an IBT subordinate body publication or the acceptance by the Hicks slate of an illegal contribution from the joint council. In either event, she charged that the resources of Joint Council 28 were improperly used to support the campaign of the Hicks slate
Alternatively, Bolton charges that if the Hicks slate made proper payment for the campaign material or any of its component parts, the vendor never advised the Scott slate that services and/or photographs were available at a price commensurate with the price paid by the Hicks slate.
Hicks told our investigator that McCarthy was never an employee of Local Union 174. He stated that McCarthy had performed work for the local union in the past, but had done so as an independent contractor. Hicks stated that the campaign contracted for the work and paid for McCarthy's services. He provided both an invoice for the work from McCarthy and evidence of payment by the campaign.
Hicks also stated that McCarthy told him that he retained the rights to all photos he has taken, whether or not used on a project for a client, and is free to do what he pleases with them. According to Hicks, McCarthy suggested the use of the photograph that appeared on the cover of the campaign material and did not assess an additional charge for its use, which McCarthy told Hick is the same way that he deals with his other clients.
McCarthy corroborated Hicks' statements. He said he was an independent contractor and a 22 year member of the Graphic Communications Union. He stated that he had never been a member or employee of either Local Union 174 or Joint Council 28.
With regard to photos used in the campaign mailer, McCarthy stated that "I take many photographs to use in the publications I produce, but my efforts are voluntary and I don't charge my clients anything for my taking of these pictures. The photos I take belong to me personally." He later characterized the providing of the photographs as "part of my service, and my phototaking as I noted earlier is free to my clients." He claimed that the Scott slate was aware of this practice as Dan Scott had "asked for and was provided, free, a few of my photos in the past years for his use in Frontline," a newsletter distributed to IBT members by Scott.
Analysis
Article VII, Section 12 (c) of the Rules provides that "Union funds, facilities, equipment, stationery, personnel, etc. may not be used to assist in campaigning unless the Union is reimbursed at fair market value for such assistance, and unless all candidates are provided equal access to such assistance and are notified in advance, in writing, of the availability of such assistance."
Here, we find that photos used in the campaign mailer of the Hicks slate were the property of McCarthy and not the joint council or the local union. Accordingly, the prohibition on use of union resources to support a candidate is not implicated because the photos were not union property.
Nor do we find a violation of the Rules provisions prohibiting non-member or employer contributions to the Hicks slate's campaign. Although McCarthy did not assess an additional charge for the right to use the photos in his client's project, investigation showed that the license to use the photo was included in the overall price he charged and was consistent with the way he charged his other clients.
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 249
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
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
Dianne Bolton
44400 SE 159th Street
North Bend, WA 98045
Dianne_bolton@centurytel.net
Rick Hicks
13623 SE 267th Pl.
Kent, WA 98042
Bill McCarthy
Joint Council 28
14675 Interurban Avenue S.
Suite 303
Tukwila, WA 98168-4652
Dan Scott, Secretary-Treasurer
Teamsters Local 174
14675 Interurban Avenue S.
Suite 303
Tukwila, WA 98168-4652
Christine M. Mrak, Esq.
2357 Hobart Avenue, SW
Seattle, WA 98116
cmm@wmblaw.net
Jeffrey Ellison
510 Highland Avenue, #325
Milford, MI 48381
EllisonEsq@aol.com