Protest Decisions

OFFICE OF THE ELECTION SUPERVISOR

for the

INTERNATIONAL BROTHERHOOD OF TEAMSTERS

IN RE: HOFFA-HALL 2016,                      )           Protest Decision 2016 ESD 261

                        )           Issued: June 29, 2016

            Protestor.                                           )           OES Case Nos. P-246-032816-NA   

____________________________________)                                  

Hoffa-Hall 2016 filed a pre-election protest pursuant to Article XIII, Section 2(b) of the Rules for the 2015-2016 IBT International Union Delegate and Officer Election (“Rules”).  The protest alleged that the Teamsters United slate received an impermissible employer contribution from Labor Notes.

            Election Supervisor representative Jeffrey Ellison investigated this protest. 

Findings of Fact and Analysis

            According to its website, Labor Notes “is a media and organizing project that has been the voice of union activists who want to put the movement back in the labor movement.”  It publishes a magazine and books, maintains a website, and hosts conferences and workshops that “promote organizing, aggressive strategies to fight concessions, alliances with workers’ centers, and unions that are run by their members.”  It also is an employer within the meaning of the Rules.

            Labor Notes hosted its annual conference at the Hyatt Regency Rosemont on April 1, 2 and 3, 2016.  The conference consisted of plenary sessions as well as workshops.  Entry to the conference was by $150 registration (early pre-registration resulted in a $45 discount).  Fred Zuckerman and Tim Sylvester paid the conference registration fee, attended, and participated in panels on two workshops.  Zuckerman’s panel discussed the effective use of strikes.  Sylvester’s panel addressed building reform caucuses within unions.

Labor Notes encourages registrants to organize meetings and receptions in its workshop spaces when those rooms are not in use.  Its website emphasizes this point in the following terms: “Organize with others in your union, industry, or campaign.  Face-to-face meetings to share tactics and swap notes are the heart of the Labor Notes Conference.  Join an existing industry, union, or caucus meeting – or contact us to set one up.”  Use of the space at the April 2016 conference was available to any conference registrant, and was included in the conference registration fee.

On Friday, April 1 at 9 p.m., Teamsters United hosted a “meet the team” campaign reception in a workshop room that was at that time not in use by the conference.  Other groups[1] held meetings and receptions at the same time in other vacant workshop rooms.  In the hotel common area outside these meetings and receptions, Labor Notes hired a cash bar to be used by any conference registrant, regardless of whether he/she attended one or more of the receptions, to purchase a drink.  The proceeds of the bar went to the hotel and not to Labor Notes or Teamsters United.

The reception generated contributions to Teamsters United, which were reported on the slate’s Period 4 CCER.  Expenses included airfare for Sylvester as well as flyers advertising the event.  These too were reported.

Article XI, Section 1(b)(2) bars employers from contributing to any candidate; the same provision bars a candidate from accepting such a contribution.  The protest alleged that Teamsters United accepted complimentary event space from Labor Notes, an employer, in violation of this provision. 

On the facts presented here, we find no impermissible employer contribution to Zuckerman and Sylvester that they used for a Teamsters United reception.  We find that use of vacant workshop space for a campaign reception was commercially reasonable consideration for conference registration.  Even though Zuckerman and Sylvester paid no money specifically for the event space, the arrangement between them and Labor Notes was nonetheless equivalent to the more typical transaction where a person hires event space for money.

Our holding would be the same even were the transaction regarded as making event space available at a discount.  Discounts on goods or services do not constitute campaign contributions so long as they are not established specifically for use by campaigns or independent committees in the 2015-2016 IBT Election and are “available to the customers of the supplier.”  Rules, Definition 5(c).  Our Advisory on Campaign Contributions, Expenditures and Disclosure (May 1, 2016), elaborates on this point as follows:

The first requirement is met if the practice of vendors providing customer discounts on goods/services is a common or accepted practice of the vendor or within the relevant industry.  The second requirement is met if such a discount is offered to all customers and not just to a specific campaign or independent committee.  The type of discount and its terms must be available to all similarly situated customers of the vendor and not be specifically created for the individual purchaser.

The purchase of discounted goods/services by an IBT member from a vendor does not constitute a campaign contribution by the vendor if the terms of the purchase are commercially reasonable. Gilmartin, 95 EAM 45 (December 18, 1995).  In situations where there is more than one producer of an item, the commercially reasonable price is set by the market.  Whether the vendor offers similar terms to other purchasers of his product is also relevant.  Gilberg, P284 (September 20, 1991), aff’d, 91 EAM 194 (October 2, 1991).  In the case of a unique product produced by a single producer with a limited customer base, the determination will depend on whether all of the costs of production and distribution, as well as reasonable profit, were covered by the sale price.  Carter, P457 (April 26, 1996).

The event space was provided to Zuckerman and Sylvester on the same basis that Labor Notes provided similar space to other registrants, and Zuckerman and Sylvester did not receive a benefit that was not provided to other conference registrants.  Accordingly, we find no impermissible employer contribution to them or, by extension, to their slate, Teamsters United.

For this reason, 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:

Kathleen A. Roberts

Election Appeals Master

JAMS

620 Eighth Avenue, 34^th floor

New York, NY 10018

kroberts@jamsadr.com

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, 1050 17^th Street, N.W., Suite 375, Washington, D.C. 20036, all within the time prescribed above.  A copy of the protest must accompany the request for hearing.

                                                                        Richard W. Mark

                                                                        Election Supervisor

cc:        Kathleen A. Roberts

            2016 ESD 261

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