Protest Decisions

              THE OFFICE OF THE ELECTION OFFICER

              for the INTERNATIONAL BROTHERHOOD OF TEAMSTERS

              400 N. Capitol Street, NW 

              Suite 855

              Washington, DC  20001

              (202) 624-3500

              (202) 624-3525  Fax

Barbara Zack Quindel                                                                                                                                   Milwaukee Address:

Election Officer                                                                                                                              Perry, Lerner & Quindel

823 North Cass Street

Milwaukee,  WI  53202

414-272-7400

414-272-7450  Fax

June 30, 1995

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Re: Election Office Cases Nos.:               P-013-IBT-SCE                                                                                                                                                          P-014-IBT-SCE

P-015-IBT-SCE     “Merger of Specific Local Unions”

P-016-IBT-SCE                                                                     

                            P-023-IBT-SCE

                            P-024-IBT-SCE

Gentlepeople:

Related pre-election protests[1] have been filed with the Election Officer pursuant to Article XIV, Section 2(a), of the Rules for the 1995-1996 IBT International Union Delegate and Officer Election (“Rules”).  Because these protests raised similar legal and factual claims, they were consolidated by the Election Officer.  The following determination addresses the claims raised in these protests.

I. Procedural Background

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On March 17, 1995, Michael Flynn, a member of Local Union 157 (East Boston, MA), filed a protest (P-014) objecting to General President Ron Carey’s plan to recommend to the IBT General Executive Board (“GEB”) to merge Local Union 157 into Local Union 25.  Flynn alleges that the proposed merger would “in effect disenfranchise members of Local 157 who are now assured one delegate and one alternate to the 1995 national I.B.T. convention . . .[and who] once merged into Local 25 could . . . [not] elect[ ] a [Local 157 member] as a delegate . . ..”  Flynn further alleges the “merger [ ] appears to be based solely for political purposes designed to eliminate the Local 157 delegate and replace him or her with a member of Local 25.”[2]

On March 16, 1995, J. Gary Gagne, Executive Officer of Local Union 380 (Boston, MA), filed a protest (P-015) objecting to the General President’s plan to recommend to the GEB merger of Local Union 380 into Local Union 25.  Executive Officer Gagne claims the proposed merger raised questions concerning Article XIII and XIV of the Rules.  By letter to the Election Officer dated April 6, 1995, Executive Officer Gagne advised the Election Officer that the GEB “took a telephone vote to merge Local 380 into Local 25" and that the “sole purpose for this is a purely political move to eliminate delegates to the 1996 convention.”  In response to a request for information by the Election Office, in a letter dated April 10, 1995, Executive Officer Gagne asserts Local Union 380 is financially viable (as opposed to other Local Unions which are not being considered for a “forced merger”) and the Local Union has asked permission to organize.  Gagne further writes:

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This would lead one to believe that the mergers are based on political agendas.  Another consideration for this belief is that Local 504 was also proposed for merger and has since been dropped from the list even though their financial situation is no better than Local 380's.  This forced merger is basically a delegate’s move and takes away from members of this local to have a voice at Joint Council #10 and a delegate vote at the International Brotherhood of Teamsters Convention in 1996.[3]

On April 14, 1995, Local Union 232 President Gregory T. LaFoy filed a protest (P-023) objecting to the proposed merger of Local Union 232 (Fort Edward Island, NY) with Local Union 294.  President LaFoy alleged that a March 13, 1995, letter from General President advising the Local Union of the merger was the first notification “announcing” the merger “contrary to [ ] policy and practice.”  President LaFoy claims that he and the Local Union 232 membership have been critical of General President Carey’s policies and Local Union 294 supports the General President. The merger therefore is a “reward to a Carey supporter, and is designed to control the representative at the 1996 Convention and ultimately the election of officers in December 1996.”

On April 21, 1995, Local Union 930 President Vaular Dene Rouse filed a protest (P-024) against the proposed merger of Local Union 930 (Tampa, FL) with Local 79.  President Rouse alleged that a March 13, 1995, letter from General President Carey was the first notification “announcing” the merger; there had been no prior notification of the merger “contrary to [ ] policy and practice.”  President Rouse claimed that she and the Local Union 930 membership have been critical of General President Carey’s policies and therefore the merger is a “reward to a Carey supporter, and is designed to control the representative at the 1996 Convention and ultimately the election of officers in December 1996.”

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II.  The Election Officer Investigation

The Election Officer’s investigation of these protests was conducted by Bruce Boyens, Regional Coordinator, and Tara Levy, Staff Attorney, Election Office Headquarters.  Further assistance in the investigation was provided by the Center for Economic Organizing, consultant to the Election Officer.

The Election Officer considered the allegations contained in the protests and the supporting documents submitted by the protestors and their counsel.[4]  In addition, the Election Officer directed her own investigation, which included a review of the merger files of each Local Union involved in this decision maintained at the headquarters of the IBT in Washington, D.C.

A.  General Information Regarding Mergers

Since January 1990, the IBT has approved 61 mergers of Local Unions and effectuated or completed 52 mergers.  These mergers have occurred for a variety of stated reasons including financial instability and/or declining membership (35 mergers); continuing consolidation of small Canadian Chemical, Energy and Allied Workers Local Unions (6 mergers); increased financial resources and/or bargaining or organizational strength (5 mergers); misfeasance (3 mergers); increased financial resources (1 merger); employer merger (1 merger); effects of reaffiliation with AFL-CIO public employee unit (1 merger) and beginning in February 1995, size, staff, shared resources (6 mergers).

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The Election Officer’s investigation included an interview of Richard Bell, Administrative Assistant to the General Secretary-Treasurer concerning the IBT’s process for determining mergers of Local Unions and the reasons for the mergers at issue here.[5]

Bell stated that during the past year (since approximately May 1994) the IBT headquarters set up a committee to review and discuss the viability of smaller Local Unions and the appropriateness of merging smaller Local Unions into larger Local Unions.  During three or four meetings, the committee first reviewed Local Unions with 250 or less members and then Local Unions with 500 or less members.  In reviewing a proposal for merger, the International Union considers the Local Union’s financial health, craft and/or geographic area jurisdiction,[6]and membership size.  The International Union identified five small Local Unions that it felt were the best cases for merger: Local Union 157 (East Boston, MA), Local Union 380 (Boston, MA), Local Union 504 (Boston, MA), Local Union 232 (Fort Edward Island, NY) and Local Union 930 (Tampa, FL).[7]

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Administrative Assistant Bell stated that, as a general policy, the International Union only conducts a referendum vote among the members of the Local Union if the merger proposal originates outside the International Union headquarters in Washington, D.C.  When the International Union proposes to merge a Local Union, the International gives advance notice to the merged and surviving Local Union(s) but no referendum of the membership of either union is conducted.  Once the GEB of the International Union has approved a merger, it is implemented.

B.  Merger of Local Union 157 with Local Union 25

Local Union 157 is chartered to represent employees of the Massachusetts Port Authority (“Massport”).  The average per capita for Local Union 157 (1/93-12/94) is 204 members.

According to Administrative Assistant Bell, Local Union 25 is the largest Local Union with general jurisdiction in the Boston area. Its 24-month average per capita for the same period is 7,062.

General President Carey sent a letter dated March 13, 1995, (hereafter referred to as “the March 13 letter”) to the principal officers of Local Unions 25, 157, 380 and 504 advising the Local Unions of his and General Secretary-Treasurer Sever’s recommendation to the GEB that Local Unions 157, 380 and 504 be merged into Local Union 25.  Carey writes:

The lack of sufficient financial resources has historically limited these Local Unions from growing in terms of financial and membership strength as they have been limited in their ability to organize while still providing essential collective bargaining representation to their membership.

Regarding Local Union 157, Carey states that the Local Union currently represents 330 members and has cash reserves of $23,346 and net assets of $25,065.  Carey notes that although the Local Union’s finances have improved in recent years, it does not have sufficient resources to effectively initiate organizing to increase its membership.  In his letter General President Carey further cites as a reason for the merger that the Local’s principal officer cannot devote sufficient time to union activities because he only works eight hours per week.    Carey states Local Union 25 represents 7300 members, is financially sound with cash reserves of $938,000 and $1,333,706 in assets, and has a staff of 9 business agents and a full-time organizer.

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Thereafter, the General President and the International Union received several letters urging the GEB to vote against the proposed merger.  These authors dispute the conclusion that the Local Union had insufficient funds to organize effectively, submit a petition with approximately 170 signatures urging the GEB to vote against the merger, argued that Local Union 25 could not provide equivalent or better representation to the unique job classifications represented by Local Union 157, asserted that the financial status of  Local Union 157 is secure and that the members had previously rejected a proposed merger with Local Union 25.   The authors did not dispute cash reserves or net assets of the Local Union, the lack of organizing initiatives or the fact that the Local Union had no full-time officer.  On or before March 28, 1995, however, the Local Union 157 Executive Board voted 6 to 1 to approve the proposed merger. 

General Secretary-Treasurer Sever sent a notice on the TITAN communications system on March 30, 1995, describing the proposed merger and initiating a vote of the GEB on the merger.  The reasons set forth are essentially those in the March 13 letter to Local Union 157, except the notice adds the Local Union 157 Executive Board vote in favor of the merger.  On April 3, 1995, a majority of the GEB had voted in favor of the merger.                

On April 11, 1995 Executive Board of Joint Council 10 unanimously resolved to oppose the merger of Local Unions 157 and 380 because the Local Unions had no opportunity to present their case against merger to the GEB and there was no membership referendum on the mergers.

On April 27, 1995, General Secretary-Treasurer Sever advised Local Unions 157 and 25 that the International Union intended the merger to be effective April 30, 1995.

C.  Merger of Local Union 380 with Local Union 25

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Local Union 380 is chartered to represent Milk Wagon Drivers and Creamery Employees.  Its 24 month per capita is 322 members.

Local Union 380 was advised of the merger by the March 13 letter from General President Carey.  Regarding Local Union 380, he notes it represents 342 members and further states:

Local 380 has experienced a decline in membership where in 1989 it recorded an average membership of 640 members.  This . . . has had an adverse effect on the financial operations of the Local Union where it now records cash assets of only $636 with recorded obligations of $9,445. 

The letter also cites the financial assistance and loans Local Union 380 has received from Joint Council 10 and Local Union 170 and that Local Union 380 has only one full-time business agent and does not have sufficient resources to initiate organizing activities.

On March 14, 1995, Local 380 Executive Officer Gagne wrote to General President Carey protesting the proposed merger claiming that the Local Union had not been audited in three years, Local Union 380 had worked to increase the membership, decrease spending and pay its outstanding obligations.  He also noted that the Local Union had organized four units and was currently involved in two other organizing drives.  Executive Officer Gagne did not dispute the drop in membership since 1989 or the current financial assets and obligations set forth in the March 13 letter.

The investigation reveals that Gagne apparently had a telephone conversation with General Secretary-Treasurer Sever on March 16, 1995, wherein, according to a memorandum prepared by Gagne, Sever advised him that the merger was an effort to save money.

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Via TITAN notice, the International initiated the GEB vote upon the merger on March 30, 1995.  A majority was reached on April 3, 1995.  After the vote was completed, Gagne again wrote to General President Carey arguing against the merger.  The International Union proceeded with the merger and by letter dated April 27, 1995, General Secretary-Treasurer Sever advised the principal officers of Local Unions 380 and 25 that the merger would be effective April 30, 1995.

D.  Merger or Local Union 232 with Local Union 294

Local Union 232 is located in Fort Edward Island, NY and is chartered to represent Petroleum Drivers, Helpers and Allied Employees.  Its 24-month per capita is 249 members.

On March 13, 1995, the General President sent a letter to Local Union 232 President Gregory T. LaFoy[8] and Local Union 294 President Howard Bennett, advising them of the proposed merger of Local Union 232 and Local Union 294.  Carey stated that the primary reason for the merger was Local Union 232's size and that the Local Union did not have a full-time business agent or office clerical staff.  He also wrote that Local Union 232 does not actively organize and that the “static membership has resulted in the Local Union’s financial position remaining essentially unchanged . . .” citing the net assets in 1994 ($21,471) and in 1990 ($21,174).  Regarding Local Union 294, Carey writes that it has approximately 3500 members in various industries in the area jurisdiction of Local Union 232, net assets of $289,500 and cash reserves of about $250,000, employs six full-time business agents, and has the expertise to represent employees in the crafts employed by Local Union 232.

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The Local Union 232 Executive Board protested the merger to the General President in a letter dated March 20, 1995.  The letter raises the lack of notice and opportunity to be heard, the Local Union’s right to make such a decision and the opposition of the leadership and the membership to the merger.

Local Union 232 President Colarusso also provided an undated letter addressed to General President Carey.  The letter disputed Local Union 232's lack of organizing and listed a number of successful organizing drives claiming the newly organized members comprise fifteen percent of the Local’s membership.  President Colarusso also writes that, despite the lack of full-time staff, the Local Union officers carry cellular telephones and are therefore available to the members.  Colaruso does not dispute the size or financial status of Local Union 232.

In interviews conducted with members of Local Union 232's executive board, they assert that the merger is retaliatory because Local Union 232 voted against the dues increase, opposed the International’s proposal to revoke the Conference charters, supported the Real Teamsters caucus and opposed the strike benefit proposal.  They stress two other points: the principal officer of Local Union 294 is a Carey ally and Local Union 398 in Rochester has not been merged despite an alleged $90,000 debt and a $25,000 loan from the International because its president is a supporter of the International.

The TITAN notice issued March 23, 1995, initiating the vote of the GEB.  It stated the same reasons for the proposed merger as in the March 13 letter.  A majority vote in favor of the merger was achieved on March 30, 1995.

E.  Merger of Local Union 930 with Local Union 79

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Local Union 930 is chartered to represent Electronic, Computer and Technical Employees in Tampa, Florida.  Its 24-month per capita is 204 members. The file at the International Union reflects that it came close to merging or dissolving Local Union 930 in 1990 when the Local Union owed its president $70,000 and its attorney $19,000.  At that time, the International believed Local Union 930 could maintain the payment schedule to pay off the obligations and had no other Local Union which could absorb its debt.

A TITAN notice was sent to the GEB on March 16, 1995 with the General President’s recommendation that Local Union 930 be merged with Local Union 79.  Carey cited the following reasons for his recommendation:   Local Union 930 is not a self-sustaining local ; it employs no full-time staff and currently transacts it monthly cash receipts through sharing the TITAN terminal located at Local Union 388; it currently represents only 100 members; it has only $296 in cash assets, $347 total assets and obligations in excess of $108,000; and little or no effort has been made to expand the membership base.

Regarding Local Union 79, the General President notes it has approximately 2800 members, cash assets of $128,000, total assets of $397,112 and net assets of $270,516. On March 22, 1995, a majority of the GEB had voted for the merger.[9]

III.  Alleged Violations, Analysis and Findings

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The protestors who cite a specific section of the Rules claim the mergers violate Title I of the Labor Management Reporting and Disclosure Act (“LMRDA”), which is incorporated into the Rules at Article XIII and Article XIV, Section  2(b)(3) of the Rules that prohibit “improper or inequitable treatment of the candidate or his/her supporters by the Union,” and Sec. 2(b)(4) which prohibits “improper preelection threats, coercion, intimidation, act of violence or retaliation for the exercise of rights protected by the Rules.”  Taken together, the protestors argue that the forced mergers were made to retaliate against the members and officers of the Local Union being merged for their vocal and well-known opposition to General President Carey and his policies, and to reward “pro-Carey” Local Unions for supporting the General President and his policies.  They argue that the intent of the mergers is to increase Carey’s control over the 1996 International convention by reducing the overall number of delegates and thus increasing the number and influence of delegates elected from Local Unions favorable to the General President. 

They cite as evidence of retaliation what they argue are procedural irregularities with these mergers:  the lack of advance notice or discussion of the mergers with the Local Union being merged, the refusal to permit the Local Union officers to appear before the GEB to argue against the mergers, the refusal to allow the Local Union membership to vote on the merger (despite prior votes by other locals on mergers and General President Carey’s prior assurances that Local Union members would be permitted to vote on mergers), forcing mergers over the clear opposition of the members and using a TITAN/fax poll of the GEB instead of waiting for the next meeting.  They also note the disparate treatment among which Local Unions are selected for mergers.

In its response to the protests, the IBT argues that the matters raised in the merger protests are internal union matters and are unrelated to the election.  It notes that the merger process will take effect long before delegates are elected and candidates are accredited and therefore, the relation of the protests to the election is too attenuated to survive scrutiny.  Even if the Election Officer finds these claims are justiciable, the IBT argues the IBT Constitution grants the GEB authority to merge Local Unions when it deems it advisable to do so, without a vote of the Local Union membership or

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Local Union consent; and that it exercised this authority for legitimate union purposes in these cases.

The IBT Constitution unequivocally empowers the GEB to merge Local Unions.  The IBT Constitution at Article IX, Section 11, reads:

Mergers

Section 11.  The General Executive Board in its discretion shall have the power to merge Local Unions and other subordinate bodies under such terms and conditions and subject to such qualifications as the General Executive Board may determine, taking into consideration such circumstances as financial conditions, jurisdiction, location and such other factors as appear appropriate in connection with the Local Unions and other subordinate bodies involved.

  In this connection the General Executive Board may, in its discretion, conduct a referendum vote among all the members of the Local Union or subordinate body, . . . as the General Executive Board may determine.  The result of such referendum, if conducted, shall be advisory only.

The role and authority of the Election Officer is circumscribed by Article I of the Ruless, providing, in relevant part:

Pursuant to the Consent Order, the Election Officer has the authority to supervise all phases of the International Union delegate and officer election, including, where necessary, the authority to conduct, overturn or rerun any phase of that election.  The Election Officer has the authority to hear and determine, with the Election Appeals Master, protests and appeals concerning the election.  The Election Officer is authorized and obligated to certify election results.             

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It is not the role of the Election Officer to scrutinize the general policy decisions of the International Union, except as they relate to her grant of authority.  The Election Officer therefore, only would find a violation if there is evidence of a nexus arising to a violation of the Rules between the mergers and the delegate and alternate delegate nomination and election process or the general election nomination and election process.[10]

While Article XIII of the Rules incorporates Sections 101(a)(1), (a)(2), and 401 (e) of the LMRDA, it is well settled that those sections only protect the rights of union members, not union officers.  See, Finnegan v. Leu, 456 U.S. 431 (1982).  The rights of the members of the merged Local Unions under Title I and Title IV of the LMRDA have not been affected.  They retain the right to be nominated and run for delegate and alternate.  They retain the right as union members to express their opinions. The members of the merged Local Unions retain the same rights as prior to the merger but are now exercising those rights within another Local Union.  This does not diminish the rights of the members. 

The complainants argue the mergers could increase the “influence” of pro-Carey delegates.   Even if this could be proven, the Election Officer is not empowered to control the “influence” of the delegates, so long as the right of members to run for office and to express their opinions as union members is not affected.  In order to be nominated to run for International Office, candidates need

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only receive five percent of the delegate votes cast.  See  Article IV, Section 5(h).[11]  Even assuming the membership or delegates of these Local Unions would support a specific “candidate”, there is no evidence that the ability of any “candidate” to achieve five percent of delegates has been affected.  The delegates themselves, and the nominated candidates are elected in rank and file one member, one vote elections.  The overall role of the Election Officer is to ensure “fair, honest, open and informed elections,” not to retain or protect the influence of a particular Local Union officer, executive board or membership. 

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Mergers of Local Unions are among the institutional functions of international unions.  Local No. 48 v. United Brotherhood of Carpenters, 920 F.2d 1047 (1st Cir. 1990).   The Election Officer will not disturb a legitimate union function and will grant the union a wide range of reasonableness, unless there is substantial evidence presented that the mergers were based on irrelevant or invidious considerations and implemented to affect the election process.  Evidence of retaliation against Local Unions led by “political opponents” during the election period may overcome a presumptively legitimate merger and show it was implemented to affect the election process.  Despite the extensive investigation conducted by this office, the Election Officer finds there is no evidence that the mergers in these cases were instituted and implemented to affect the election process.[12]

The merger decisions were instituted and implemented well before the delegate and general elections.  The evidence in the International Union’s files indicates that the International Union had been considering the mergers of smaller Local Unions for the past twelve months. The stated rationale for the mergers was largely substantiated by the evidence before the Election Officer. 

The allegations of retaliation do not support the finding of a violation.  The allegations of procedural irregularities (e.g., failure to allow the membership to vote on the merger) are unsupported. The IBT Constitution clearly permits mergers without membership vote or advance notification and an opportunity for the Local Union to argue against the merger.  (See Article IX, Section 11, of the IBT Constitution leaving a membership vote to the discretion of the GEB, and such vote, even if conducted, is only advisory.)   Even assuming that Local Unions were treated differently with regard to the procedures utilized by the International in merging Local Unions, such decisions are within the broad discretion granted by the IBT Constitution.  That these Local Unions may have been selected for merger while others were not, or not afforded the opportunity to debate and vote like other Local Unions, is an internal IBT institutional decision.[13]

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For the foregoing reasons, the Election Officer rules as follows:  P-014-LU 157-SCE,        P-015-LU 380-SCE, P-023-LU 232-SCE, and P-024-LU 990-SCE are DENIED for the reasons set forth above;  P-013-LU 504-SCE is DENIED as moot; and the WITHDRAWAL of P-016-LU 157-SCE is permitted as requested in the May 9, 1995 letter submitted to the Election Officer.

If any interested party is not satisfied with this determination, they may request a hearing before the Election Appeals Master within one day of their 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.

Mudge, Rose, Guthrie, Alexander & Ferdon

180 Maiden Lane, 36th Floor

New York, NY  10038 

fax (212) 248-2655

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:  Election Appeals Master Kenneth Conboy