Protest Decisions

IN RE: DAVID THEODORE, Protestor.
Protest Decision 2011 ESD 128
Issued: February 21, 2011
OES Case No. P-079-011411-MW

David Theodore, member of Local Union 673, filed a pre-election protest pursuant to Article XIII, Section 2(b) of the Rules for the 2010-2011 IBT International Union Delegate and Officer Election ("Rules"). We decided the first allegation of the protest in Theodore, 2011 ESD 71 (January 20, 2011). We severed for investigation and decision the protest's second claim, which alleged improper use of union resources to benefit a campaign.

Election Supervisor representative Joe Childers investigated this protest.

Findings of Fact

Local Union 673's first nomination meeting was held on January 13, 2011 at the local union's hall in West Chicago, Illinois. The protest alleged a campaign photo was affixed to the inside glass of the hall's foyer door, adjacent to the receptionist's desk. Depicted in the photo were four Hoffa supporters wearing red vests while attending the 2006 IBT International Convention in Las Vegas. Written over the photograph in black marker were the words "NOT THIS YEAR."

The photo was posted so as to be seen by persons entering through the main doors of the hall. Protestor Theodore told our investigator that he, the other members of his slate, and an observer saw the photo as they were exiting the hall at the end of the meeting. All said the photo was not on the door when they entered before the meeting commenced. One of the members of Theodore's slate photographed the window to which the flyer was taped. Those photos were supplied to our investigator.

Neither Theodore nor any member of his slate confronted anyone about or investigated the photograph on the night of the nomination meeting. Instead, he and his slate members left the building. He did not know how long the photograph remained on the receptionist's window.

Theodore stated that a couple of days after the nomination meeting, business agent Javier Najera approached him, admitted that he had posted the flyer, and apologized for it.

Najera admitted to our investigator that he found the photo when searching the internet on his home computer. He scrolled through many photographs until he found one of Local Union 673 members wearing red Hoffa vests. He said two of the four members depicted in the photograph are on Theodore's slate again this year. and brought it to the nominations meeting. He printed the photo at home and brought it to the nominations meeting.

Najera told our investigator that he wrote the words "NOT THIS YEAR" on the photograph before taping it on the inside of the window. He stated that the photograph was posted only for about 45 seconds, long enough for the opposition slate members to see it, which was his plan. He claimed that he no longer has the photograph, but had thrown it away. He stated that he put the photograph up as a joke.

Roger Kohler, local union principal officer, told our investigator that two full slates were nominated for the delegate and alternate delegate positions at the January 13 meeting. This included six members on his slate and six members on the opposition slate, including protestor Theodore. The nomination meeting lasted about 20 minutes. Kohler stated that he was busy with paperwork, including filling out candidate information sheets, after the nominations meeting and never saw the photograph in question. Kohler opened the hall shortly before the start of the 7:00 p.m. nomination meeting on January 13, and the photograph was not on the window at that time. He told our investigator that after completing the paperwork, he left the meeting fairly quickly after the conclusion of the meeting because he was not feeling well, and did not see the photograph when he left. Other members were still present at the union hall when he left.

Kohler told our investigator that Najera admitted that he posted the photo. Kohler said that Najera told him he printed the photograph at his home from the web. Kohler said he learned this information when he questioned his staff following receipt of the protest. He said that Najera said he took the photograph down the same night, and that it was only on the window for a short time.

Analysis

Article VII, Section 12(c) of the Rules prohibits use of union facilities to assist in campaigning. Najera's posting of the photograph with the campaign slogan "NOT THIS YEAR" across its face violated this provision of the Rules. Accordingly, we GRANT the protest.

Remedy

When the Election Supervisor determines that the Rules have been violated, he "may take whatever remedial action is deemed appropriate." Article XIII, Section 4. In fashioning the appropriate remedy, the Election Supervisor views the nature and seriousness of the violation as well as its potential for interfering with the election process.

We direct Business Agent Javier Najera and Local Union 673 to cease and desist from using union resources to support or oppose any slate of candidates or individual candidates in the upcoming Local Union 673 delegate election. In addition, we direct Local Union 673, within two (2) days of receipt of this decision, to post on the union bulletin board at the union hall the notice attached to this decision and to mail the notice by first class mail to each member of Theodore's slate. The notice posted on the bulletin board shall remain posted for a period of 30 days and shall not be defaced or covered up.

We limit our remedy to what is ordered here because the improper posting was of very brief duration and of limited audience.

A decision of the Election Supervisor takes immediate effect unless stayed. Lopez, 96 EAM 73 (February 13, 1996).

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:

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, 1801 K Street, N.W., Suite 421 L, Washington, D.C. 20006, 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
        2011 ESD 128

DISTRIBUTION LIST (BY EMAIL UNLESS OTHERWISE SPECIFIED):

Bradley T. Raymond, General Counsel
International Brotherhood of Teamsters
25 Louisiana Avenue, N.W.
Washington, D.C. 20001
braymond@teamster.org

David J. Hoffa
Hoffa Keegel 2011
1100 Connecticut Avenue, N.W., Ste. 730
Washington, D.C. 20036
hoffadav@hotmail.com

Ken Paff
Teamsters for a Democratic Union
P.O. Box 10128
Detroit, MI 48210-0128
ken@tdu.org

Barbara Harvey
1394 E. Jefferson Avenue
Detroit, MI 48207
blmharvey@sbcglobal.net

Fred Gegare
P.O. Box 9663
Green Bay, WI 54308-9663
kirchmanb@yahoo.com

Scott D. Soldon
3541 N. Summit Avenue
Shorewood, WI 53211
scottsoldon@gmail.com

Fred Zuckerman, President
Teamsters Local Union 89
3813 Taylor Blvd.
Louisville, KY 40215
fredzuckerman@aol.com

Robert M. Colone, Esq.
P.O. Box 272
Sellersburg, IN 47172-0272
rmcolone@hotmail.com

Carl Biers
Box 424, 315 Flatbush Avenue
Brooklyn, NY 11217
info@SandyPope2011.org

Julian Gonzalez
Lewis, Clifton & Nikolaidis, P.C.
350 Seventh Avenue, Suite 1800
New York, NY 10001-5013
jgonzalez@lcnlaw.com

David Theodore
1123 Sharon Lane
Schaumburg, IL 60193-1352
theodore673@yahoo.com

Roger Kohler, Secretary-Treasurer
Teamsters Local Union 673
1050 W. Roosevelt Road
West Chicago, IL 60185
roger@teamsterslocal673.net

Javier Najera
Teamsters Local Union 673
1050 W. Roosevelt Road
West Chicago, IL 60185
javier@teamsterslocal673.net

William C. Broberg
1108 Fincastle Road
Lexington, KY 40502-1838
wcbroberg@aol.com

Kathryn Naylor
Office of the Election Supervisor
1801 K Street, N.W.
Washington, D.C. 20006
knaylor@ibtvote.org

Jeffrey J. Ellison
214 S. Main Street, Suite. 210
Ann Arbor, MI 48104
ellisonesq@aol.com

Richard W. Mark
Election Supervisor

The Election Supervisor has found that Javier Najera, business agent for Local Union 673, violated the Election Rules by posting a campaign flyer on a window at the Local Union hall during the January 13, 2011 nominations meeting for delegates and alternative delegates to the 2011 IBT International Convention.

Local union facilities, including the windows of its hall, may not be used for campaign purposes.

The Election Supervisor has ordered Najera and Local Union 673 to cease and desist from using union resources to support or oppose any candidate or slate of candidates in the local union's delegates and alternate delegates election or in the International officers election.

The Election Supervisor has issued this decision in Theodore, 2011 ESD (February 21, 2011). You may read this decision at http://www.ibtvote.org/protests/2010/2011esd128.htm.

Any protest you have regarding your rights under the Rules or any conduct by any person or entity that violates the Rules should be filed with Richard W. Mark, 1801 K Street, N.W., Suite 421L, Washington, D.C. 20006, telephone: 877-317-2011, fax: 202-429-6809, email: electionsupervisor@ibtvote.org.

This is an official notice of the Election Supervisor for the International Brotherhood of Teamsters. It must remain posted on this bulletin board for 30 consecutive days and must not be defaced or covered up.