January 2, 1996
VIA UPS OVERNIGHT
Jerry Halberg
January 2, 1996
Page 1
Jerry Halberg
7903 S. 124th Street
Seattle, WA 98178
Diana Kilmury, Vice President
International Brotherhood of Teamsters
2612 E. 47th Avenue
Vancouver, BC V5S 1C1
James P. Hoffa
2593 Hounds Chase
Troy, MI 48098
John J. Sullivan
Associate General Counsel
International Brotherhood of Teamsters
25 Louisiana Ave., N.W.
Washington, D.C. 20001
Susan Davis
Cohen, Weiss & Simon
330 W. 42nd Street
New York, NY 10036
Jerry Halberg
January 2, 1996
Page 1
Re: Election Office Case No. P-259-IBT-SCE
Gentlepersons:
A pre-election protest was filed pursuant to Article XIV, Section 2(b) of the Rules for the 1995-1996 IBT International Union Delegate and Officer Election (“Rules”) by Jerry Halberg, a member of Local Union 174.
Mr. Halberg charges that Vice President Diana Kilmury, a candidate for reelection on the Ron Carey slate, conducted improper surveillance of an event held to raise funds for the campaign of James P. Hoffa, a candidate for general president. Mr. Halberg also contends that Ms. Kilmury used union resources while engaged in these improper activities and, thus, promoted Mr. Carey’s candidacy. He contends that her actions infringe on the rights of members to participate in the election process and violate Article VIII, Sections 11(a)-(f) of the Rules.
Jerry Halberg
January 2, 1996
Page 1
Specifically, Mr. Halberg alleges that on November 30, 1995, Ms. Kilmury attended a Hoffa fundraiser in Vancouver, B.C. At this luncheon, Ms. Kilmury took photographs of individuals attending the luncheon and spoke into a cellular telephone, which she carried with her. Mr. Halberg also contends that Ms. Kilmury was being paid by the union while at the fundraiser.
In response, Ms. Kilmury states that she attended the Hoffa fundraiser on her own time to “see what our opponents were saying about us.” The cellular telephone, she contends, is her own personal property, and all charges traceable to its use “other than long distance charges for IBT business calls” are paid for out of her personal funds. Ms. Kilmury emphatically denies that she conducted surveillance of IBT members. While she admits she took photographs, she contends others, including professional photographers and many luncheon attendees, also took photos. She further states that neither the event organizers nor any individual ever requested that she not take photographs. Finally, she notes that most of the photographs she took were group pictures and not pictures of individuals, and her sole intent was to “take a few personal snapshots of an interesting public event.” She also states that the Rules do not specifically prohibit a member or officer from taking photos at a campaign rally.
This protest was investigated by Regional Coordinator Bruce Boyens.
The Rules, at Article VIII, Section 11(a), guarantee to members the “right to participate in campaign activities, including the right to run for office, to support or oppose any candidate, to aid or campaign for any candidate, and to make personal campaign contributions.” This basic right, so essential to the goal of a free election, is reinforced in Article VIII, Section 11(f) which prohibits “[R]etaliation or threat of retaliation by the International Union, any subordinate body, any member of the IBT, any employer or other person or entity against a Union member, officer or employee for exercising any right guaranteed by this or any other Article of the Rules.”
As the Election Officer recently reiterated in Giacumbo, et al., P-210-IBT-NYC, et seq., (December 5, 1995), aff’d, 95 - Elec. App. - 45 (KC) (December 18, 1995), “[t]hese rights, and the safeguards designed for their maintenance, are fundamental to the conduct of a fair and open election. A fair and open election is the ‘central purpose’ of the Consent Decree.” See United States v. IBT (Yellow Freight), 948 F.2d 98 (2d. Cir. 1991, as amended, February 14, 1992), vacated as moot, __ U.S. __, 113 S.Ct. 31 (1992). Any act which constitutes coercion, interference or harassment of any member in the exercise of these essential rights is forbidden. Surveillance is certainly one of those acts.” See Pollack, Case No. P-008-LU732-NYC (October 29, 1990), aff’d, 90 - Elec. App. - 8 (November 7, 1990) (where the Election Officer stated that “surveillance or creating the appearance of surveillance [is] violative of the Election Rules [because it] is destructive of the fundamental safeguards of . . . free and fair elections outlined in the Consent Decree and the Election Rules.)
Jerry Halberg
January 2, 1996
Page 1
In Giacumbo, supra, the Election Officer held that International Vice President Tom Gilmartin, Jr., violated Article VIII, Section 11(f) when he “conspicuously engaged in making a record of the names of persons” attending a Hoffa fundraising event, including writing down “license plate numbers of vehicles.” Affirming the Election Officer’s decision in Giacumbo, the Election Appeals Master noted that the mere presence of an IBT official at a union function does not constitute intimidation. In Re: Giacumbo, supra. However, the Appeals Master went on to note that where the actions of an IBT official “can reasonably be interpreted” as an attempt to dissuade a candidate’s supporters from attending a campaign function, the Rules have been violated. “[T]he appearance of surveillance of IBT members engaging in campaign activities violates the right of members to support candidates free from coercion, interference or harassment.” (Citing Pollack, supra.)
Whether Ms. Kilmury intended to engage in surveillance of IBT members attending this political event is not determinative. At issue is whether Ms. Kilmury’s utilization of a camera and a cellular telephone could reasonably have been interpreted as surveillance. The Election Officer finds that, at their core, Ms. Kilmury’s activities are fundamentally indistinguishable from those found violative in Pollack and Giacumbo. Numerous individuals who attended the Hoffa fundraiser are readily identifiable from Ms. Kilmury’s photographs. In fact, four of the photographs when spliced together as a panorama create a single picture spanning more than three corners of the room in which the fundraiser was held. In addition, Ms. Kilmury used her cellular telephone to make numerous calls in view of luncheon attendees. Thus, a union member attending the Hoffa fundraiser could have reasonably inferred from Ms. Kilmury’s activities that pictures were being taken so that individuals in attendance later might be identified. Such activities by an International vice president have a chilling effect on an member’s “right to gather and discuss issues concerning the election of delegates and alternate delegates to the International Convention free from surveillance.” Pollack, supra.
While the Election Officer believes Ms. Kilmury went to the fundraiser to “see what our opponents were saying about us,” taking pictures of the attendees and conspicously making calls on her cellular telephone, were unnecessary to accomplish this goal. It is no defense that numerous other individuals also took photographs or that none of the event organizers objected or asked Ms. Kilmury to cease her activities. Ms. Kilmury argues that the members had no reasonable expectation of privacy because they attended the fundraiser “for the express purpose of making their support for a candidate known.” Article VIII, Section 11(f) of the Rules protects a member’s political rights without such limitations. Section 11(f) prohibits a union official from creating the appearance of surveillance at gatherings of union members that implicate the delegate and alternate election process. When a camera and telephone are used by a union official in a way that creates the appearance of surveillance, the Rules have been violated.
Jerry Halberg
January 2, 1996
Page 1
Article VIII, Section 11(a) states in relevant part that, “[n]o candidate or member may campaign during his/her working hours. Article XII, Section 1(b)(3) of the Rules prohibits the use of union funds in campaigning.
The Election Officer’s investigation confirmed Ms. Kilmury’s claim that the cellular phone she utilized on November 30 is her personal property and that her appearance at the Hoffa fundraiser occurred on her own personal time. There is no evidence that Ms. Kilmury was engaged in any of an International vice president’s official duties as generally defined in Article IX of the IBT Constitution. Thus, the Election Officer finds that no prohibited contribution was provided or accepted by a candidate in violation of the Rules.
Based upon the foregoing, Mr. Halberg’s protest as it implicates Article VIII, Section 11(f) of the Rules is GRANTED and the protest is DENIED in all other respects.
The Election Officer is empowered to remedy violations of the Rules by whatever action is appropriate. In order to remedy this violation of the Rules, Ms. Kilmury is directed to comply with the following:
Ms. Kilmury will cease and desist from any further or similar surveillance, creating the appearance of surveillance or interference with the rights of IBT members under the Consent Order or the Rules with respect to supporting or engaging in any campaign-related activity on behalf of any candidate for delegate, alternate delegate or International officer of the IBT.
Within four (4) days of his receipt of this decision, Ms. Kilmury will sign the enclosed notice and return it to the Election Officer.
The Election Officer will conduct an investigation in order to determine the names of all persons who are entitled to receive copies of the signed notice, arrange for the reproduction and mailing of the notice and bill Ms. Kilmury for all expenses incurred in connection therewith. Ms. Kilmury’s campaign shall pay the Election Officer’s statement of expenses immediately upon receipt.
Within ten (10) days of her receipt of this decision, Ms. Kilmury will execute and file with the Election Officer an affidavit stating that she has complied with the Order of the Election Officer and stating in detail the manner of such compliance.
Jerry Halberg
January 2, 1996
Page 1
Any interested party not satisfied with this determination may request a hearing before the Election Appeals Master within one day of receipt of this letter. The parties are reminded that, absent extraordinary circumstances, no party may rely upon evidence that was not presented to the Office of the Election Officer in any such appeal. Requests for a hearing shall be made in writing and shall be served on:
Kenneth Conboy, Esq.
Latham & Watkins
885 Third Avenue, Suite 1000
New York, NY 10022
Fax (212) 751-4864
Copies of the request for hearing must be served on the parties listed above as well as upon the Election Officer, 400 North Capitol Street, Suite 855, Washington, D.C. 20001, Facsimile (202) 624-3525. A copy of the protest must accompany the request for a hearing.
Sincerely,
Barbara Zack Quindel
Election Officer
cc: Kenneth Conboy, Election Appeals Master
Bruce Boyens, Regional Coordinator
Christine Mrak, Regional Coordinator
NOTICE TO MEMBERS OF THE IBT
You have the right to participate in campaign activities on behalf of candidates for delegate and alternate delegate in the 1995-96 IBT Election.
You have the right to participate in campaign activities on behalf of candidates for International office in the IBT.
You have the right to attend and participate in fundraising events sponsored by the campaign of James P. Hoffa, candidate for general president, free from any interference, restraint or coercion.
I will not interfere with your exercise of any of these rights or any other right of IBT members under the Consent Decree or the Rules for the 1995-96 IBT International Union Delegate and Officer Election.
Diana Kilmury
International Vice President
Prepared and approved by IBT Election Officer Barbara Zack Quindel.