Protest Decisions

              September 19, 1996

VIA UPS OVERNIGHT

Casey Sawyer

September 19, 1996

Page 1

Casey Sawyer, Secretary-Treasurer

Teamsters Local Union 490

445 Nebraska Street

Vallejo, CA 94590

Ron Carey, General President

International Brotherhood of Teamsters

25 Louisiana Avenue, N.W.

Washington, DC 20001

Lucky Stores

P.O. Box 5008

San Leandro, CA 94577

Steve MacDonald

566 Gonzales Drive

Vacaville, CA 95688

Nathaniel K. Charny

Cohen, Weiss & Simon

330 W. 42nd Street

New York, NY 10036

Casey Sawyer

September 19, 1996

Page 1

Re:  Election Office Case No. P-917-LU490-CSF

Gentlemen:

A pre-election protest was filed pursuant to Article XIV, Section 2(b) of the Rules for the IBT International Union Delegate and Officer Election (“Rules”) by Casey Sawyer, secretary-treasurer of Local Union 490.  Mr. Sawyer alleges that Steve MacDonald, a member and former Convention delegate of Local Union 490, used his Convention per diem payment to campaign, failed to verify his actual Convention expenses, and accepted an employer campaign contribution, in violation of the Rules.

Mr. MacDonald responds that he was advised at the Convention by Election Office staff that he was not required to submit receipts to verify his Convention expenses or to justify to the local union his use of the per diem.  He denies accepting an employer contribution.

Regional Coordinator Matthew Ross investigated the protest.

Casey Sawyer

September 19, 1996

Page 1

The investigation revealed that on July 5, 1996, Mr. Sawyer sent a per diem check for $60 a day and a letter to Mr. MacDonald.  In the letter, Mr. Sawyer instructed

Mr. MacDonald to complete an enclosed “Expense Recap Form” and submit it, along with receipts for “legitimate expenses,” when he returned from the Convention.  Mr. Sawyer also stated that any portion of the per diem not used for a “valid expense” must be returned to the local union. 

On August 13, 1996, Mr. Sawyer received an itemized list of expenses from

Mr. MacDonald.  The list included a $135.57 expense for “1,000 sets of 3-page Delegate Convention News produced by Steve for Local 490 members.  Delivered to job sites on

Aug. 7 & 8, 1996.  Copy costs- Kinko’s.”  The list also included an expense of $22.95 for “Faxes to Local 490 members, Philadelphia Convention Center.”  Mr. MacDonald did not submit receipts.

Mr. Sawyer contends that, because Mr. MacDonald has not submitted receipts, the local union cannot determine if Mr. MacDonald is obligated to repay any portion of his per diem.  In addition, he asserts that the literature reproduced by Mr. MacDonald was a campaign piece supporting the candidacy of Ron Carey, the incumbent general president and a candidate for reelection, and that Mr. MacDonald incurred the facsimile transmission charges by transmitting campaign literature to local union members.  He alleges that the use of per diem money for such purposes amounts to the use of union resources to campaign, in violation of the Rules.

Finally, Mr. Sawyer alleges that Mr. MacDonald accepted a campaign contribution from a Lucky’s Store Distribution Center (“Lucky’s”).  He contends that during the Convention Mr. MacDonald faxed campaign literature to local union members employed there, and that these members received the transmission on an employer fax machine.  He further contends that the campaign literature material was then reproduced and distributed using employer facilities.  Mr. Sawyer alleges that the use of these facilities constitutes an impermissible employer campaign contribution.

1.              Use of Mr. MacDonald’s per diem

Section III(C) of the Advisory Regarding Convention Expenses, (“Advisory”), issued on May 2, 1996, states: 

The local union is responsible for providing a $60 per diem for its delegates and, if applicable, its alternates.  This sum is in addition to the expenditure for hotel room and travel to and from Philadelphia described above.  The local union shall advance such per diem expense monies to all delegates and, if applicable, alternate delegates.

Casey Sawyer

September 19, 1996

Page 1

In addition, the Election Officer stated in Rushing,  P-786-LU439-EOH:

The Advisory clearly requires the local union to advance at least $60 per diem for seven days.  Moreover, local unions that have inquired regarding the local union’s per diem obligation have been advised that the Election Office will not require delegates and alternate delegates to retain or to submit receipts to the local union in order to document their Convention-related daily expenses.[1]  The delegates and alternate delegates do not have to return any of their per diem advance or allowance (a total of $420 for seven days) to the local union. 

The Election Officer has determined that delegates need not justify their use of the per diem nor may local unions insist that returning delegates submit receipts to insure the per diem money was used only for “valid” expenses.  Mr. Sawyer’s contention that Mr. MacDonald’s refusal to submit receipts violated the Rules is, thus, without merit.

Mr. Sawyer’s allegations concerning Mr. MacDonald’s use of the per diem money is also without merit.  The per diem is not a “union resource” as Mr. Sawyer contends.  Once paid to the delegate, it is no longer under the control of the local union.  There are no restrictions on how the delegate may spend his or her money.

2.              Employer Contribution

Mr. MacDonald states that he faxed the daily Convention reports to PIP Printing (“PIP”) in Vacaville, California.  PIP copied the literature, which was then picked up by

John Hammer.  Mr. Hammer then distributed the literature at Lucky’s and other work sites.  Mr. Hammer confirmed this.

Mr. Sawyer presented no evidence to support his allegation that Lucky’s made campaign contributions.  He states that he heard “rumors” that the convention report was received and copied at Lucky’s. 

In the absence of other evidence, the Election Officer credits the statements of

Messrs. MacDonald and Hammer.

Accordingly, the protest is DENIED.

Casey Sawyer

September 19, 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 N. 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

Matthew Ross, Regional Coordinator