Protest Decisions

              November 13, 1996

VIA UPS OVERNIGHT

Ken Mee & Rome Aloise

November 13, 1996

Page 1

Ken Mee

42356 Greenbrier Park Drive

Fremont, CA  94538

Rome Aloise, Secretary-Treasurer

Teamsters Local Union 853

2100 Merced Street, Suite B

San Leandro, CA  94577

Bob Blanchet

3853 Dryden Road

Fremont, CA  94555

Harvey Gomes

Teamsters Local Union 853

2100 Merced Street, Suite B

San Leandro, CA  94577

Gillig Bus Company

P.O. Box 3008

Haywood, CA  94540

Ron Carey Campaign

c/o Nathaniel K. 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

Ken Mee & Rome Aloise

November 13, 1996

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Re:  Election Office Case Nos.              P-1153-LU853-CSF and P-1177-LU853-CSF (CORRECTED)

Gentlemen:

Related pre-election protests were filed pursuant to Article XIV, Section 2(b) of the Rules for the 1995-1996 IBT International Union Delegate and Officer Election (“Rules”)

Ken Mee & Rome Aloise

November 13, 1996

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by Ken Mee, an International vice president and a candidate for reelection, and Rome Aloise, secretary-treasurer of Local Union 853.  In P-1153-LU853-CSF, Mr. Mee contends that on October 30, 1996, IBT members Bob Blanchet and Bob Gunnerson were prevented from campaigning at Gillig Bus Company (“Gillig”) due to physical threats and intimidation from Harvey Gomes, a trustee of Local Union 853.  Mr. Mee also contends that the campaigners observed a sign on Gillig’s premises supporting James P. Hoffa, a candidate for general president, representing an improper employer contribution, in violation of the Rules.  In

P-1177-LU853-CSF, Mr. Aloise contends that while campaigning at Gillig on October 30, 1996, Messrs. Blanchet and Gunnerson physically threatened and coerced Local Union 853 members who would not accept the campaign literature they were handing out to members. 

Local Union 853 responds that Mr. Gomes did not threaten anyone and that it is unaware of any sign supporting Mr. Hoffa.  Messrs. Mee, Blanchet and Gunnerson specifically deny any physical threats made to Local Union 853 members.

Gillig responds that it has permitted a hand-lettered sign made by one of its employees which reads “Hoffa ‘96, Restore the Pride” to be leaned up against the parts warehouse building.

These protests were investigated by Regional Coordinator Matthew D. Ross.  Because they involved similar events and allegations, the Election Officer consolidated them for decision.

Gillig has a plant, where it manufactures buses, located in Hayward, California.  It employees approximately 300 IBT members in the production plant and another dozen members in the parts warehouse building, next door to the production building.  A fence surrounds the production building and separates the employee parking lot from a dirt path in front of the production building.  The parts department, which is in a separate building does not have a fence around it and is accessed via a driveway off a public street.

Messrs. Blanchet and Gunnerson arrived at the Gillig facility to campaign for

Ron Carey, a candidate for reelection as general president, just before the last shift of the day

in the parts department.  Just after they arrived they were told by an unidentified Gillig employee, “This is Hoffa country . . . you’re wasting your time.”  After an exchange of words, the Gillig employee entered the parts warehouse.  Shortly thereafter, Messrs. Blanchet and Gunnerson observed a group of about eight employees exit the parts building en masse

and walk over to where they were standing.  These employees carried a hand-lettered sign

that read, “Hoffa ‘96, Restore the Pride.”  It was approximately 48 feet.  The employees also carried Hoffa campaign materials, which at least some of the employees state were obtained from Harvey Gomes’ desk inside the facility.[1]  As this group approached Messrs. Blanchet and Gunnerson, they began to chant, “Hoffa!  Hoffa!” 

Ken Mee & Rome Aloise

November 13, 1996

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As Messrs. Blanchet and Gunnerson approached employees to give out the Carey literature, a member of the group shouted, “This is Hoffa’s house,” and “You have no business being here.”  There ensued nasty comments by the campaigners supporters

Mr. Carey and the employees supporting Mr. Hoffa.  For example, Mr. Blanchet stated to employee Matt Kennedy, “I should kick your ass, little boy.”  Witnesses confirmed that equally nasty remarks were directed at the campaigners, with a lot of finger-pointing and shouting.

Shortly after this exchange began, Mr. Gomes emerged from the parts warehouse and attempted to calm people down.  There is a dispute as to whether he exchanged “words” with Mr. Blanchet, but the witnesses credited by the investigator agree that he basically attempted to calm Mr. Blanchet and the most vocal Hoffa supporter, Enrique Lanza.

About 10 or 15 minutes after this exchange began, Gillig Human Resources Manager Jack Hart emerged from the production building and approached the group.  Mr. Hart spoke to Messrs. Blanchet and Gunnerson about where they could stand while campaigning.  He returned to the facility and reemerged a few minutes later apparently to clarify that they could stand inside the first gate to hand out the literature. 

Most of the group of employees returned to the parts department after 15 or 20 minutes.  The employees have a 10-minute break, so they returned five to 10 minutes past their normal break time.  Employee Kennedy, however, remained outside and campaigned for Mr. Hoffa until close to 3:00 p.m., at least 20 minutes past his normal break time.

1.              Allegations Regarding Intimidation and Violence

Article VIII, Section 11(f) of the Rules provides as follows:

Retaliation 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 is prohibited.

This section is violated when members engage in physically or verbally aggressive behavior that threatens actual harm.  Passo, P-469-LU705-CHI et seq. (February 29, 1996) (finding intent to provoke physical confrontation violates Rules), aff’d in relevant part,

Ken Mee & Rome Aloise

November 13, 1996

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96 - Elec. App. - 124 (KC) (March 13, 1996).  The section does not proscribe “the natural discourse that arises as a result of campaign-related activities,” even if heated.  Furst, P-949-LU430-PNJ (October 9, 1996) (“heated discussion” between protester and charged party does not violate Rules).  See Dunn, P-110-LU25-BOS (July 28, 1995), aff’d, 95 - Elec. App. - 8 (KC) (August 21, 1995) (local union president did not violate Rules by following, hovering near and blocking path of campaigning member); Corriea, P-930-LU150-CSF (September 12, 1996) (fact that charged party, much taller than protester, stood over latter’s desk, did not constitute violation, as charged party “was not aggressive or violent, nor did he threaten aggression or violence in any way”).

There is little question that there was a nasty exchange that took place between supporters of Mr. Carey and supporters of Mr. Hoffa.  There is no evidence that Mr. Blanchet made threatening remarks to the employees to whom he was campaigning.  The tone of the exchange in these protests seems to be based on the approach of a large group of Hoffa supporters to the two Carey campaigners.  While the exchanges were heated and emotional, the Election Officer does not find, based on the factual circumstances presented here,

that either Mr. Blanchet or Mr. Gomes engaged in conduct in violation of Article VIII,

Section 11(f) of the Rules.

2.   Allegations Involving the Hoffa Campaign Sign

Gillig has admitted that the hand-printed campaign sign described above has been outside its parts warehouse.  In fact, the investigation revealed that the Hoffa sign had been kept outside the building for at least one month in a location where it could be easily read by the public and employees passing the facility on the public street.  Moreover, some of the employees interviewed during the investigation stated that they had taken the sign over to the fence surrounding the production building during their break and had chanted “Hoffa! Hoffa!” to the cars lined up to enter the employee lot in front of the production building. 

  Article XII, Section 1(b)(1) of the Rules states as follows:

No employer may contribute, or shall be permitted to contribute, directly or indirectly, anything of value, where the purpose, object or foreseeable effect of the contribution is to influence, positively or negatively, the election of a candidate.  No candidate may accept or use any such contribution.

While the Rules protect the ability of members to support candidates of their own choosing, that protection does not extend to affixing campaign material to property that belongs to an employer.[2]  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.”

Ken Mee & Rome Aloise

November 13, 1996

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In a series of recent cases, the Election Officer held that affixing campaign material to employer-owned trucks constitutes an improper campaign contribution on the part of the employer, in violation of Article XII, Section 1(b)(1) of the Rules.  See, e.g., 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); Sweeney, P-1058-LU807-NYC (October 28, 1996).[3]  In these cases, the Election Officer further stated that placing campaign material on an employer’s truck “can also create a false impression of employer endorsement, which would be another form of improper campaign contribution.”

              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 campaign material to an employer’s property results in a violation of the Rules on the part of the candidate who the member intends to support.

Recently, the Election Officer similarly held that the Rules are violated when campaign material is affixed to an employer building.  Hoffa, P-1150-IBT-NYC (November 11, 1996).

Here, an employee supporting Mr. Hoffa hand-printed a sign and, with the employer’s knowledge, placed the sign outside the building.  Therefore, the conduct engaged in by Gillig violated the Rules, and the acceptance of the contribution by the Hoffa campaign similarly violated the Rules.

With respect to Gillig, the employer states that it did not realize allowing the sign to be placed on the outside of its building violated the Rules.  When contacted by the Election Officer’s representative, the employer agreed to remove the signs immediately and to notify its employees that no campaign materials would be permitted on the building or any other employer-owned property.  As the Election Officer has recently stated, “Immediate removal ends any potential impact of the improper campaigning.”  Hoffman, P-1050-LU817-NYC (October 28, 1996); Sweeney, P-1029-RCS-NYC et seq. (October 28, 1996); Aguilar, P-1080-LU848-CLA (October 31, 1996); Hoffa, P-1048-LU572-CLA (November 1, 1996).  On November 11, the employer was instructed by the Election Officer representative regarding removal of the sign.  A Gillig representative agreed to remove it immediately after learning of the violation.

Accordingly, the protest in P-1153-LU853-CSF is RESOLVED as to Gillig, GRANTED as to the Hoffa campaign regarding the display of the campaign sign, and DENIED in all other respects.  The protest in P-1179-LU853-CSF 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. 

Ken Mee & Rome Aloise

November 13, 1996

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The Election Officer finds that the appearance of a large Hoffa sign on the Gillig building warrants the following relief, including an opportunity for Mr.  Carey to reach the Gillig employees represented by Local Union 853.  The Election Officer therefore orders the following:

1.  Within three (3) days of the date of this decision, Local Union 853 Secretary-Treasurer Rome Aloise shall sign the attached “Notice to Local Union 853 Members” and

post it on all local union bulletin boards at Gillig.  The notice must remain posted through December 10, 1996.

2.  Local Union 853 shall afford an opportunity to the Carey campaign to send a mailing to Local Union 853 members employed by Gillig.  The Carey campaign may submit one 8½11-inch sheet of campaign material, printed on one side, to Local Union 853 within three (3) days of the date of this decision.  If the Carey campaign provides this material, Local Union 853 shall duplicate and mail the material, within two (2) days of its receipt and without any other enclosure or reference to it, to Local Union 853 members employed by Gillig.  The costs of the mailing shall be borne by the Hoffa campaign.

3.  Within five (5) days of the date of this decision, the local union shall submit an affidavit to the Election Officer demonstrating its compliance with paragraphs 1 and 2 of this order.  This affidavit shall include a copy of the invoice sent to the Hoffa campaign.  The Hoffa campaign will immediately forward to Local Union 853 the amount of the invoice.

                            4.   The Hoffa campaign shall cease and desist from accepting campaign contributions resulting from Local Union 853 members affixing pro-Hoffa material to employer property. The Hoffa campaign is further ordered to take all steps necessary to ensure compliance with this cease-and-desist order, including, but not limited to, ensuring that its supporters at Gillig do not display campaign signs and immediately removing any such material posted in violation of this order.  Within two (2) days of paying the invoice from Local Union 810, the Hoffa campaign will file an affidavit with the Election Officer detailing its compliance with this order, attaching a copy of the check confirming payment to Local Union 810 for the mailing of the Hoffa campaign material.

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:

Ken Mee & Rome Aloise

November 13, 1996

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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, 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

Matthew D. Ross, Regional Coordinator

NOTICE TO LOCAL UNION 853 MEMBERS

RE:  IMPROPER USE OF EMPLOYER PROPERTY AND CAMPAIGNING ON WORK TIME

The Election Officer has found that a campaign sign was improperly placed on the outside of the Gillig parts warehouse building, where members of the local union work. 

The Election Rules protect campaigning as a personal right of members.

Employer resources or property do not belong to members and cannot be used by them to campaign.  Putting International officer campaign material on employer property violates the Election Rules.

______________________                                          ___________________________

Date                                                                                                  Rome Aloise, Secretary-Treasurer

Teamsters Local Union 853

This is an official notice which must remain posted through 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.