Protest Decisions

October 16, 1996

VIA UPS OVERNIGHT

James P. Hoffa

October 16, 1996

Page 1

James P. Hoffa

2593 Hounds Chase

Troy, MI  48098

Ron Carey, General President

International Brotherhood of Teamsters

25 Louisiana Avenue, N.W.

Washington, DC  20001

Diana Kilmury, Vice President

International Brotherhood of Teamsters

2612 E. 47th Avenue

Vancouver, BC  V5S 1C1

Joseph A. Galli, Secretary-Treasurer

Teamsters Local Union 688

300 S. Grand

St. Louis, MO  63103

Paul Alan Levy

Public Citizen Litigation Group

1600 20th Street, N.W.

Washington, DC  20009

Teamsters for a Democratic Union

7437 Michigan Avenue

Detroit, MI  48210

Ron Carey Campaign

c/o Nathaniel Charny

Cohen, Weiss & Simon

330 W. 42nd Street

New York, NY  10036

Bradley T. Raymond

Finkel, Whitefield, Selik, Raymond,

  Ferrara & Feldman, P.C.

32300 Northwestern Highway, Suite 200

Farmington Hills, MI  48334

John Sullivan, Associate General Counsel

International Brotherhood of Teamsters

25 Louisiana Avenue, N.W.

Washington, DC  20001

Martin Wald

Schnader, Harrison, Segal & Lewis

1600 Market Street, Suite 3600

Philadelphia, PA  19103

James P. Hoffa

October 16, 1996

Page 1

Re:  Election Office Case Nos. P-1073-IBT-MOI

    P-1081-IBT-MOI

Gentlepersons:

James P. Hoffa

October 16, 1996

Page 1

James P. Hoffa, a member of Local Union 614 and a candidate for general president, filed two pre-election protests pursuant to Article XIV, Section 2(b) of the Rules for the 1995-1996 IBT International Union Delegate and Officer Election (“Rules”).

In P-1073-IBT-MOI, Mr. Hoffa alleges that since approximately October 7, 1996,

Ron Carey supporters have continuously placed Carey campaign stickers and other campaign materials on UPS trucks and other property at the UPS facility in Earth City, Missouri. 

Mr. Hoffa cites one incident in which “two individuals were specifically identified affixing Carey campaign stickers to UPS property in Earth City.  They were Carey activist

John Youngermann and IBT employee Dan Eby.”  In addition, Mr. Hoffa alleges that Carey campaign supporters have “repeatedly defaced private property with Carey campaign materials throughout the St. Louis area.” 

In P-1081-IBT-MOI, Mr. Hoffa alleges that agents of the IBT, the Carey campaign and/or Teamsters for a Democratic Union (“TDU”), including vice president-at-large candidate for reelection Diana Kilmury, appeared at the Earth City UPS facility and engaged in improper campaigning for Mr. Carey on October 11, 1996.  Mr. Hoffa alleges that by “representing themselves as ‘from the International,’ these persons conveyed the impression that the International is endorsing Mr. Carey.”  In addition, Mr. Hoffa also alleges that the above-named individuals “caused Carey campaign materials to be affixed to UPS property.”

The Election Officer consolidated these protests for decision because they arise from similar situations and involve the same sections of the Rules.

With respect to the incident allegedly involving Messrs. Youngermann and Eby,

Mr. Youngermann states that he did not place any Carey campaign stickers on UPS property, but admits that he saw another IBT member place a Carey campaign sticker on a public utility pole inside the UPS parking lot.  Mr. Youngermann states that the light pole already had a Hoffa campaign sticker on it.

TDU responds that they did not send people to UPS property to post Carey campaign stickers, and that they are not responsible for the acts of individual members.  TDU further responds that the presence of the Hoffa campaign sticker on the UPS light pole had converted the pole into the equivalent of a “multi-purpose bulletin board,” such that the Carey campaign sticker was not posted in violation of the Rules.

The Carey campaign responds that Mr. Eby did not violate the Rules by placing a Carey campaign sticker on a public utility pole inside the UPS parking lot.  The Carey campaign states that the presence of a Hoffa campaign sticker on the pole prior to the posting of the Carey campaign sticker negated any violation.

With respect to the allegation against Ms. Kilmury, the Carey campaign responds that the protest appears to have been filed in error since Ms. Kilmury campaigned at a Schnucks facility that day and did not appear at the UPS facility.

James P. Hoffa

October 16, 1996

Page 1

UPS District Labor Manager Jim Laherty states that the company has a no-solicitation rule that it is vigilant in forbidding all stickers, that it has removed all campaign stickers and that there will be daily audits by its operations people ensuring that its no-solicitation rule is

enforced.  UPS also states that it has notified Local Union 688 and informed it that the company’s no-solicitation rule will be strictly enforced, and has had its cooperation.

Regional Coordinator Michael D. Gordon investigated the protests.

1.  Allegation Concerning Improper Posting of Carey Campaign Stickers

Mr. Hoffa alleges that “[c]ontinuously since on or about October 7, 1996, numerous Carey campaign stickers and other materials have been observed affixed to UPS trucks and other property at the Company’s facility in Earth City, Missouri.”  In addition, the protester alleges that “neither UPS, the Carey campaign nor the IBT have the slightest intention of honoring [the Election Officer’s] previous decisions concerning the defacement of employer property with campaign materials.”

The protester submitted a set of photographs that show Ron Carey Slate ’96 stickers on various UPS-owned objects.  There are two photographs of a sticker on the bumpers of two UPS vans, two photographs of a sticker on the handset of what is described as the Feeder Driver telephone at Gate 1 of the UPS facility at Earth City, and two photographs of a sticker on a wall inside the UPS building.  In total, the submitted photographs of stickers on UPS property showed evidence of five Ron Carey Slate ’96 stickers.

On the evening of October 8, 1996, Local Union 688 and TDU members Dan Eby,

John Youngermann and others distributed Carey leaflets at the UPS parking lot in Earth City.  At approximately 11:15 p.m., Messrs. Youngermann, Eby and another IBT member observed a Hoffa sticker on a lamp post and decided to cover the sticker with a Carey campaign sticker. 

Mr. Eby and one of the other IBT members crisscrossed two Carey stickers over the Hoffa sticker.  There is no evidence as to who posted any of the other Carey campaign stickers referred to in this protest.

James P. Hoffa

October 16, 1996

Page 1

As the Election Officer has stated in several recent matters, “[n]othing in . . . the Rules authorizes members to affix campaign material to employer-owned trucks . . .”  Hoffa, P-992-LU707-NYC (October 7, 1996); Knox, P-1046-LU337-MOI et seq. (October 30, 1996); Sweeney, P-1058-LU807-NYC (October 28, 1996).  While the Rules protect the ability of members to support candidates of their own choosing, that protection does not extend to affixing campaign stickers and other material to property that belongs to an employer.[1]  As the Election Officer stated in Phelan, P-711-LU550-NYC (April 23, 1996), aff’d, 96 - Elec. App. - 184 (KC) (May 6, 1996), “[t]he Rules protect campaigning as a personal right of IBT members and require that it be exercised that way.”  See Hoffa, P-1048-LU572-CLA (November 1, 1996).

Affixing campaign material to employer property has other consequences as well.  Putting such material on an employer’s truck or equipment has the effect, under the Rules, of causing the employer to make an improper campaign contribution, in violation of Article XII, Section 1(b)(1), even if the affixing of the sticker was against employer policy.[2]  Putting stickers on employer trucks or equipment can also create a false impression of employer endorsement, which would be another form of improper campaign contribution.  See Feeley, P-874-LU817-MGN (September 17, 1996); Maney, P-956-IATSE-NYC et seq. (October 2, 1996), aff’d,

96 - Elec. App. - 251 (KC) (October 15, 1996); Knox, P-1006-SFD-MGN (October 14, 1996).

Furthermore, under Article XII, Section 1(b)(9) of the Rules, International officer candidates “are strictly liable to insure that each contribution received is permitted under the Rules.”  Therefore, affixing a campaign sticker or sign to an employer truck or other piece of equipment results in a violation of the Rules on the part of the candidate who the member intends to support.

The Election Officer finds that the protester did not submit evidence to show the “continuous” posting of Carey campaign materials at the Earth City facility or that Carey campaign supporters improperly affixed stickers on October 11.  The evidence submitted showed five Carey campaign stickers affixed to UPS property.  In addition, Mr. Eby admitted that he and another unnamed IBT member placed two Carey campaign stickers on top of a Hoffa campaign sticker on a light pole in the employer’s parking lot. 

The Election Officer finds that the posting of the above-mentioned campaign stickers violated the Rules.  With respect to Mr. Eby’s violation, the Rules protect face-to-face campaigning in employer parking lots and not the affixing of campaign materials to property. Article VIII, Section 11(e).  The Election Officer further does not accept that the improper presence of one campaign sticker creates authority for an opposing sticker to be put on top.

With respect to UPS, the Election Officer finds that the employer has a no-solicitation rule and that it has made substantial efforts to remove campaign stickers from its property.  During the investigation of this protest, UPS notified Local Union 688 that the company’s no-solicitation rule will be strictly enforced and has solicited the local union’s cooperation.  UPS has further agreed that there will be daily audits by its operations people ensuring that its no-solicitation rule is enforced.  In view of the measures, the Election Officer will consider the protest as to UPS to be resolved.

James P. Hoffa

October 16, 1996

Page 1

The protester also alleges that Carey campaign supporters have “repeatedly defaced private property with Carey campaign materials throughout the St. Louis area.” 

The protester submitted photographs to the Regional Coordinator depicting various objects with Carey campaign stickers affixed to them, which he states were taken by Local

Union 688 steward Terry Kneemiller on or about October 8 and 9, 1996.  The protester also submitted photographs that he states other unidentified local union members took on or about October 4, 1996.  One photograph shows a Ron Carey Slate ’96 sticker on a UPS mail box alleged to be in St. Peters, Missouri (a St. Louis suburb).  A second photograph is a close-up of the same sticker.  Another two photographs show a Ron Carey Slate ’96 sticker on a telephone company utility box alleged to be on the side of a road in Wentzville, Missouri.  Another two photographs show two Ron Carey Slate ’96 stickers on a stop sign alleged to be located at an intersection on I-270.  Another photograph shows upright Ron Carey Slate ’96 placards on posts stuck into the ground, allegedly in Forrest Park in St. Louis.

The Election Officer has found that “[u]nion members who choose to post campaign materials on public utility poles or public signs existing along public streets or sidewalks are not engaging in conduct which is either protected or sanctioned by the Rules.”  Braga, P-795-LU439-CSF (June 19, 1996); Hoffa, P-1034-JC1-CLE (October 17, 1996).  This rule applies to roadside fixtures such as the UPS mailbox and the telephone box involved in this protest.   Whether or not such actions fall under proscriptions in state and/or local law is outside the scope of the Election Officer’s review.

2.  Allegation Concerning Improper Campaigning

In P-1081-IBT-MOI, the protester alleges that Ms. Kilmury and other Carey campaigners violated the Rules by telling members that they came from the IBT when they campaigned at the Earth City facility on October 11, thereby conveying “the impression that the International is endorsing Mr. Carey.”

Mr. Hoffa provided one witness, Mr. Kneemiller, who stated that the campaigners told members that they came from the International.  The protester did not produce any other evidence to support his allegation that the campaigners “conveyed the impression that the International is endorsing Mr. Carey.”  It does not violate the Rules for campaigners to tell members where they are employed.  Such information is part of open communication between members.  The evidence did not show words of direct or implied endorsement by the International.[3]

Based upon the foregoing reasons, the protest in P-1073-IBT-MOI is RESOLVED with respect to UPS, GRANTED with respect to Mr. Eby and the Carey campaign concerning improperly affixed stickers on UPS property, and DENIED in all other respects.

James P. Hoffa

October 16, 1996

Page 1

The protest in P-1081-IBT-MOI is DENIED.

When the Election Officer determines that the Rules have been violated, she “may take whatever remedial action is appropriate.”  Article XIV, Section 4.  In fashioning the appropriate remedy, the Election Officer views the nature and seriousness of the violation, as well as its potential for interfering with the election process.

The Election Officer orders the following:

1.  Dan Eby shall cease and desist from affixing campaign stickers and material to employer property.

2.  Within three (3) days of receipt of this protest, Local Union 688 shall post the attached notice on bulletin boards at the local union hall and on bulletin boards at the UPS facility in Earth City.  The notice shall remain on the bulletin boards until December 10, 1996 and shall not be covered or obstructed in any manner.  Within three (3) days of the completion of this posting, the local union shall submit an affidavit to the Election Officer demonstrating compliance with this order.

On this record, the Election Officer notes that the employer and the local union have undertaken aggressive and appropriate efforts to remove stickers and prevent further occurrences at the facilities in question.  Accordingly, the Election Officer finds that no further remedy is required at this time.

An order of the Election Officer, unless otherwise stayed, takes immediate effect against a party found to be in violation of the Rules.  In Re: Lopez, 96 - Elec. App. - 73 (KC) (February 13, 1996).

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

James P. Hoffa

October 16, 1996

Page 1

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, DC 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

Michael D. Gordon, Regional Coordinator

              NOTICE TO LOCAL UNION 688 MEMBERS

Local Union 688 is issuing this notice to remind members that the Election Rules prohibit misuse of employer property and resources during the International officer election.  Putting International candidate campaign material on employer property, or using employer resources in order to campaign, violates the Election Rules.

You are hereby requested to stop such activity if you see it and to remove any International officer campaign material from employer property when you find it.

______________________                                          __________________________

Date                                                                                                  Joseph Galli, Secretary-Treasurer

Teamsters Local Union 688

This is an official notice which must remain posted until December 10, 1996, and must not be defaced or altered in any manner or be covered with any other material.

Approved by Barbara Zack Quindel, IBT Election Officer.