January 9, 1998
VIA UPS OVERNIGHT
Ken Mee
January 9, 1998
Page 1
Ken Mee
42356 Greenbrier Park Drive
Fremont, CA 94538
Chuck Mack, Sec.-Treas.
Teamsters Local Union 70
70 Hegenberger Road
Oakland, CA 94621
James P. Hoffa
2593 Hounds Chase
Troy, MI 48098
Bradley T. Raymond, Esq.
Finkel, Whitefield, Selik,
Raymond, Ferrara & Feldman
32300 Northwestern Highway
Suite 200
Farmington Hills, MI 48334
Ken Mee
January 9, 1998
Page 1
Re: Election Office Case No. PR-048-LU70-PNW
Gentlemen:
Ken Mee, a member of Local Union 287 and a candidate for Western Region vice president, filed a pre-election protest pursuant to Article XIV, Section 2(b) of the Rules for the 1995-1996 IBT International Union Delegate and Officer Election (“Rules”) against Chuck Mack, secretary-treasurer of Local Union 70, and a candidate for Western Region vice president on the Hoffa Slate and against James P. Hoffa, a candidate for general president. The protester alleges Mr. Mack receives an improper employer contribution from the Oakland Airport because it provides him with a free parking space which he uses when he takes flights for the purposes of campaigning.
Mr. Mack responds that he has been provided with parking permits from both the Oakland and San Francisco airports for the past 15 years. He uses these permits for union business and has not used them to campaign or for personal business. Mr. Hoffa contends that the protest is untimely.
The protest was investigated by Regional Coordinator Christine M. Mrak.
Ken Mee
January 9, 1998
Page 1
On December 5, 1997, Mr. Mee filed his protest with the Election Officer. As evidence of the Rules violation, Mr. Mee cited to two articles from the Contra Costa Times, dated April 10 and April 11, 1997. The Rules at Article XIV, Section 2(b) state that preelection protests “must be filed within two (2) working days of the day when the protester becomes aware of the action protested or such protests shall be waived.”
The requirement to promptly file protests is an important part of the election process. The short time limits were designed to ensure that alleged violations of the Rules would be quickly brought to the attention of the Election Officer in order to afford the greatest opportunity for applying an effective remedy in the event a violation is found. Nevertheless, the Election Officer has not treated time limits as an absolute jurisdictional requirement, but rather a prudential restriction.
The newspaper articles upon which the protester relies for his allegations are dated April 10 and 11, 1997. The instant protest was filed on December 5, 1997, nearly eight months after the articles appeared in the Contra Costa Times. The protester argues that the time limits should not apply because the protest constitutes an ongoing violation and that December 4, 1997, was the first time he was aware of the articles. The Election Officer does not agree. While it may be true that the protester first learned of the information on December 4, he resides in the Bay Area and therefore the Election Officer finds he “should have known” of the publicly available sources that he cites for the information at or about the dates the news articles were published. To rule otherwise could result in members searching for and retrieving historical information from numerous widely available public sources to use as the basis for protest allegations. This would render meaningless the provisions on timeliness under the Rules. As the Election Appeals Master stated in In re: Heiman, 96 - Elec. App. - 172 (KC) (April 18, 1997):
Circumstances, especially the long public exposure of a violation, may give rise to a conclusion that a concerned party can reasonably be held to have constructive knowledge of said violation, with his failure to act under such circumstances being an appropriate basis upon which to find that any protest right has been waived.
Therefore, the Election Officer finds that the protest is untimely. See Ruscigno, P-144-LU337-MGN (October 4, 1995), aff’d, 95 - Elec. App. - 25 (KC) (October 18, 1995), Young, P-423-LU41-MOI (April 4, 1996).
Moreover, even if the Election Officer were to consider the merits of this protest, he would not find a violation of the Rules. Mr. Mack states that he has had parking permits for the San Francisco and Oakland airports for 15 years, and that he has used only the Oakland permit. The protestor offered no evidence to the contrary. Mr. Mack further states that he only flies out of town to campaign once or twice a year and, on those occasions, his wife has driven him to the airport. With regard to the incident mentioned in the newspaper article, Mr. Mack states he was flying to a Western Conference Pension meeting in Southern California on union business.
Ken Mee
January 9, 1998
Page 1
The Rules define a campaign contribution as “any direct or indirect contribution of money or other thing of value where the purpose, object or foreseeable effect of that contribution is to influence, positively or negatively, the election of a candidate . . . .” Definitions, 5. Here, the parking permits predate the campaign by more than a decade. Therefore, even without examining whether the permits have ever been used to support campaign activity by Mr. Mack, the act of providing the permits by the Oakland and San Francisco airports could not have had the necessary “purpose, object, or foreseeable effect” to be campaign contributions.
Accordingly, the protest is DENIED.
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, NW, Suite 445, Washington, DC 20001, Facsimile
(202) 624-3525. A copy of the protest must accompany the request for a hearing.
Sincerely,
Michael G. Cherkasky
Election Officer
MGC:chh
cc: Kenneth Conboy, Election Appeals Master
Christine M. Mrak, Regional Coordinator