Protest Decisions

              December 12, 1995

VIA UPS OVERNIGHT

Tom Gilmartin, Jr.

December 12, 1995

Page 1

Tom Gilmartin, Jr.

December 12, 1995

Page 1

Tom Gilmartin, Jr.

December 12, 1995

Page 1

Re:  Election Office Case No. P-032-LU245-PNJ

Gentlepersons:

A pre-election protest was filed pursuant to Article XIV, Section 2(a) of the Rules for the 1995-96 IBT International Union Delegate and Officer Election (“Rules”) by

Tom Gilmartin, a vice president of the IBT and a member of Local Union 559.[1] The protester alleges that James P. Hoffa, a candidate for IBT general president, unlawfully used funds provided by certain local unions and joint councils to campaign at various locations throughout the country, beginning in May 1994.   Mr. Hoffa’s participation in the following events are alleged to have violated the Rules:  a visit to Local Union 245 in Springfield, Missouri on

Tom Gilmartin, Jr.

December 12, 1995

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May 3, 1994; a visit to Local Union 710 in Chicago, Illinois on September 25, 1995; a visit to Local Union 104 in Phoenix, Arizona in October 1994; participation in an organizing campaign at Brighton Hospital in Detroit, Michigan on December 17, 1994; a visit to Local Union 81 in Portland, Oregon on December 18, 1994; an appearance at the Local Union 41 stewards’ dinner in Kansas City, Missouri on January 8, 1995; an appearance on the “Tom Snyder” television program on January 19, 1995; an appearance at a Jesse Acuna Defense Fund rally in El Monte, California on January 21, 1995; an appearance at a baseball players’ picket line in Fort Lauderdale, Florida on February 18-19, 1995; attendance at the AFL-CIO Executive Board meeting in Bal Harbour, Florida on February 19-23, 1995; and appearances at the International Teamster Women’s Caucus convention and the Jesse Acuna Defense Fund rally in Las Vegas, Nevada on March 22, 1995.  The protester also alleges that Mr. Hoffa has unlawfully used union resources to store campaign materials in the office of Joint Council 43. 

Mr. Gilmartin further contends that certain IBT affiliates and their officers improperly used union funds to attend meetings of the “Real Teamsters Caucus” held to promote the candidacy of Mr. Hoffa and to attack the candidacy of General President Ron Carey.  The protester’s allegations concerning the Real Teamsters Caucus will be determined in a separate decision to be issued by the Election Officer. 

The protest was investigated by Regional Coordinator Peter V. Marks, Sr.

I.              Election Office Investigation in Cases Where Union-Funded

Campaign Activity is Alleged             

The protester alleges that Mr. Hoffa, in the various instances cited, used union funds to engage in campaign activity.  Article VIII, Section 11(c) and Article XII, Section 1(b) of the Rules both prohibit the use of union funds, facilities and equipment to assist in campaigning unless the union is reimbursed at fair-market value and equal access to such assistance is provided to all candidates.  A candidate is free to campaign if no union funds or resources are utilized. 

The Rules, at Article XIV, Section 1, require the protester to assume the initial burden of presenting evidence that a violation has occurred.  The Election Officer’s determination as to whether a protest arising under Article VIII, Section 11(c) is sustainable under the Rules is dependent upon the simultaneous existence of three basic elements.  First, the protested conduct must be directed to a “candidate.”  Second, assuming that “candidate” status can be affirmatively ascertained, the Election Officer examines the protested activity in order to determine whether it supports or attacks the candidate to whom it is directed.  An inquiry into the tone, timing, content and context of the activity is conducted.  See Martin, et al., P-010-IBT-PNJ et seq., (August 17, 1995), aff’d, 95 - Elec. App. - 18 (KC) (October 2, 1995).  Third, the “campaign” activity, that is, conduct or communication which support or attack a candidate, must be “financed, directly or indirectly, by a Union,” as that term is defined by the Rules.  See Article VIII, Section 11. 

The question of candidacy is determined by examining the statements of a member evidencing intent to run for office, reviewing the Campaign Contribution and Expenditure Reports (“CCER”) in order to ascertain whether any funds have been contributed or expended in furtherance of a campaign, and analyzing other reliable indicia of candidacy.  The Election Officer will first determine if the subject of the alleged campaign statement or written material is a candidate within the meaning of the Rules.   Crawley, P-027-LU988-PNJ, et seq.

(August 23, 1995). 

Tom Gilmartin, Jr.

December 12, 1995

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The burden of proof on the part of the protester contemplates that the protester provide a description of the protested activity alleged to be campaigning.  Such evidence can be provided through the testimony of witnesses to events or by the production of relevant documents.  Commonly, the protester will have witnessed the event or will have learned of the conduct or communication on the basis of a report from a reliable source. 

Therefore, to meet the protester’s initial burden to present evidence under Article XIV, Section 1, the protestor must provide information reasonably calculated to inform the Election Officer as to the times, dates, locations, names of persons involved and, as accurately as possible, an account of the event protested and why it is alleged to be campaign activity.[2] 

The Election Officer will thereafter conduct an investigation and determine whether the conduct or communication meets the definition of “campaigning” within the meaning of the Rules. If there is evidence that activity may be considered “campaigning,” the Election Officer will identify the source of funds utilized.[3]

In reviewing this protest following the withdrawal of her earlier opinion, the Election Officer utilized this method of proof.

II.              Allegations Resolved in Earlier Election Officer Decisions

The Election Officer has resolved certain of Mr. Gilmartin’s allegations in previous decisions.  His allegation that Mr. Hoffa, Bill Hogan, C. Sam Theodus, and R. V. Durham used union resources to campaign at a stewards’ function sponsored by Local Union 41 in Kansas City, Missouri in January 1995 was considered in Epperson, et al., Case

No. P-034-LU41-SCE, et seq. (September 27, 1995).  The decision concluded that no evidence established that union funds were used by any of the speakers.

Mr. Gilmartin also alleged that Mr. Hoffa used union resources to campaign at the International Teamster Women’s Caucus (“ITWC”) convention and Jesse Acuna Defense Fund rally in Las Vegas, Nevada on March 25, 1995.  The Election Officer considered these allegations in Pope, et al., Case No. P-046-JC7-EOH, et seq. (October 12, 1995), aff’d,

95 - Elec. App. - 35 (KC) (November 14, 1995 and concluded that while the ITWC and three local unions contributed resources to Mr. Hoffa’s campaign, there was insufficient evidence that Mr. Hoffa himself campaigned at the ITWC convention or at the Acuna rally. 

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December 12, 1995

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Mr. Gilmartin further alleged that Cheryl Johnson, an employee of Local Union 20, used union resources to send Local 20 trucks to the ITWC convention in Las Vegas to support

Mr. Hoffa’s candidacy.  This allegation was previously examined in Sullivan, et al., Case

No. P-075-AC-EOH (September 28, 1995).  The Election Officer denied this protest, finding insufficient evidence to show that the Ohio Conference of Teamsters sent its tractor-trailer to Las Vegas to promote Mr. Hoffa’s candidacy.  The investigation there disclosed that

Cheryl Johnson, who is also the ITWC president, arranged for the Ohio Conference, which includes Local Union 20, to send its tractor-trailer to the ITWC convention for permissible union business.

III.              Allegations Not Previously Considered by the Election Officer

A.  January 19, 1995 appearance on “Tom Snyder”

The protester claims that Mr. Hoffa used union resources to travel to Los Angeles on January 19, 1995 in order to appear on the television program “The Late Late Show with

Tom Snyder,” in connection with his campaign.  Mr. Hoffa states that he traveled to Los Angeles to appear on the television program using his own time and money. 

A review of a videotape provided by the protester indicated that campaign activity occurred during the course of the television program. 

Mr. Hoffa has supplied evidence establishing that no union funds were used. 

Mr. Hoffa utilized a Northwest Airlines “WorldPerks Fly-Write” ticket donated to him by IBT member Lawrence Brennan to and from Los Angeles.[4]  Mr. Brennan states that these are miles which he has acquired through both business and personal travel, but can retain for his personal use.  Thus, the Election Officer concludes that the ticket is a contribution made to Mr. Hoffa by Mr. Brennan in his capacity as a member under the IBT.  Such a contribution is permissible under the Rules.  See Article XII, Section 1(b)(5).  The evidence submitted indicates all other expenditures for Mr. Hoffa’s appearance on the television show in

Los Angeles were paid by Mr. Hoffa personally.  There is no indication, therefore, that union funds were used and thus the protester’s allegation is without merit.

B.  Jesse Acuna Legal Defense Fund Rally on January 21, 1995

The protester asserts that Mr. Hoffa used union resources to travel to El Monte, California on January 21, 1995 to campaign at a rally for Jesse Acuna.  Joint Council 43 and Mr. Hoffa state that Mr. Hoffa went to El Monte on his own time and used his own funds, and that Mr. Hoffa’s talk there was not “political.”

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December 12, 1995

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The flyer for the event announces “Jimmy Hoffa Jr.” as the guest speaker at the rally for the Jesse Acuna Legal Defense Fund.  The flyer states a five-dollar admission fee and that all proceeds go to the defense fund.  The Election Officer has reviewed a “Hoffa 96” press release which describes Mr. Hoffa’s appearance as follows:  “When Hoffa was introduced the more than one thousand Teamsters stood to their feet and applaud for several minutes while chanting ‘Hoffa, Hoffa, Hoffa.’”

There is evidence to support the conclusion that some campaign activity took place in connection with this event.  While the protester alleges Mr. Hoffa used union funds, there is no evidence to support this allegation.  Mr. Hoffa demonstrated that no union funds were used to pay any of his expenses.  The Election Officer similarly concludes that the protester’s allegation regarding the use of union funds to appear at the Acuna rally is without merit.

C.  Storing Campaign Materials at the Joint Council 43 Offices

The protester further alleges that Mr. Hoffa has unlawfully used union resources to store campaign materials in the office of Joint Council 43.  Joint Council 43 and Mr. Hoffa deny this charge.

The protester has presented no evidence to support this allegation.  In the absence of any evidence that violations of the Rules occurred, the Election Officer concludes that the protester’s allegation is without merit.

D.              AFL-CIO Executive Board Meeting on February 19-23, 1995;

Baseball Players’ Picket Line on February 18-19, 1995

The protester alleges that Mr. Hoffa used union resources to travel to Bal Harbour, Florida, where he campaigned before a CBS film crew while claiming that he was going to attend the AFL-CIO Executive Board meeting which began there on February 19, 1995.  Joint Council 43 and Mr. Hoffa respond that the joint council president asked Mr. Hoffa to attend the meeting in response to a request by the Michigan AFL-CIO that the joint council send a representative to Bal Harbour.  The joint council and Mr. Hoffa deny that Mr. Hoffa campaigned there.  Mr. Hoffa supplied the Election Officer with:  (1) a letter from the Michigan State AFL-CIO president to Joint Council 43 President Brennan inviting him to the Bal Harbour meeting; (2) a memorandum from Mr. Brennan requesting Mr. Hoffa to represent the joint council at the meeting, and requesting a report on activities at Bal Harbour; (3) a letter of introduction from Mr. Brennan stating that Mr. Hoffa will represent the joint council at the meeting; (4) the schedule of meetings and events at the AFL-CIO Executive Board meeting; and (5) Mr. Hoffa’s report on the meeting.

The protester also alleges that while in Florida to attend the AFL-CIO Executive Board meeting in Bal Harbour, Mr. Hoffa used union resources to travel to Fort Lauderdale, Florida in February 1995 to promote his candidacy during a rally in support of the baseball players’ strike.  Joint Council 43 and Mr. Hoffa deny that Mr. Hoffa attended the rally, and

Tom Gilmartin, Jr.

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Mr. Gilmartin has not provided any evidence that Mr. Hoffa attended this rally, let alone used it to promote his candidacy. 

No evidence of any campaign activity by Mr. Hoffa on these occasions was presented.  No violation of the Rules can be sustained.

E.  Appearances in Springfield, Missouri on May 3, 1994

The protester contends that Mr. Hoffa used union resources to travel to and attend

certain meetings in Springfield, Missouri and that as the administrative assistant to Joint Council 43 in Michigan, he had no legitimate business purpose for making this trip.

Joint Council 43 and Mr. Hoffa state that Mr. Hoffa was invited to speak at a stewards’ seminar sponsored by Local Union 245 in Springfield, Missouri on Saturday, April 30, 1994 and Sunday, May 1, 1994.  On Sunday, Mr. Hoffa spoke at a Local Union 245 membership meeting.  Local Union 245 Secretary-Treasurer Jim Kabell filed an affidavit with the Election Officer stating that at the seminar Mr. Hoffa spoke on the subject of “Just Cause, the Seven Tests,” and no political activity of any kind was involved in the seminar.  Mr. Kabell also asserts that at the local union membership meeting, Mr. Hoffa spoke on the state of unionism is our country, and the need for members to be active in local, state and federal government and to be active in organizing.  Local Union 245 paid for Mr. Hoffa’s airfare and lodging.

  The protester has presented no evidence that any campaign activity took place with respect to Mr. Hoffa’s appearances at these events.  In the absence of any evidence to the contrary, the Election Officer concludes that these allegations are also without merit.  

F.  Appearance at Local Union 104 in Phoenix, Arizona

The protester alleges that Mr. Hoffa used union resources provided by Local

Union 104 and Joint Council 43 to campaign in Phoenix, Arizona between October 23 and 31, 1994 on behalf of himself and Terry Moser, who was then a candidate for reelection as principal officer in Local Union 104.  Joint Council 43 and Mr. Hoffa deny that Mr. Hoffa was campaigning for himself, claiming that he was exercising his right to support Mr. Moser’s candidacy.  Moreover, they contend that Mr. Hoffa did not use union funds for travel or lodging expenses and used vacation days for the trip.  The protester has supplied no evidence that Mr. Hoffa campaigned for anyone other than Mr. Moser during his visit to Phoenix.             

Campaign activity on behalf of a candidate for local union office is not within the scope of the Rules.  Zero, Case No. P-078-LU337-EOH (August 4, 1995).  There is thus no evidence that Mr. Hoffa’s visit to Phoenix violated the Rules.

Tom Gilmartin, Jr.

December 12, 1995

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G.  Appearance at Local Union 710 on September 25, 1994

The protester alleges that Mr. Hoffa used union resources to travel to Chicago, Illinois to campaign at a Local Union 710 membership meeting on Sunday, September 25, 1994.  Joint Council 43 and Mr. Hoffa respond that he traveled on his own time and used his own funds. 

  The protester has presented no evidence that Mr. Hoffa campaigned during this appearance.  This conclusion is confirmed by the review of an audiotape of Mr. Hoffa’s remarks at this event.  In addition, it appears that Mr. Hoffa traveled and made these appearances on a weekend, thus on non-union time.  In the absence of any evidence to the contrary, the Election Officer concludes that these allegations are without merit.

H.  Organizing Campaign at Brighton Hospital

Mr. Gilmartin charges that Local Union 337 provided union resources to Mr. Hoffa to promote his candidacy by issuing a news release crediting Mr. Hoffa with playing an active role in a campaign to organize Brighton Hospital employees into the local union, and that Joint Council 43 contributed Mr. Hoffa’s salary while he worked on the campaign.  The protester also charges that Mr. Hoffa’s “involvement in the campaign exceeded his duties as admini-strative assistant to [the principal officer of Joint Council] 43 and was done only to promote his candidacy.”  Joint Council 43 and Mr. Hoffa contend that Mr. Hoffa’s assistance in organizing Brighton Hospital employees was within his responsibilities as “executive assistant” to the joint council president.

The protester provided the Election Officer with a December 17, 1994 news release by Local Union 337 describing the union’s victory in the election held at Brighton Hospital.  The release states that “newly-appointed Michigan Teamsters Joint Council 43 Administrative Assistant James P. Hoffa played an active role in th[e] organizing campaign.”  The release attributes the opinion that Mr. Hoffa’s involvement “was key to turning the tide in favor of the union and securing the organizing victory” to “several Brighton Hospital employees.”  The release does not mention the 1995-96 International delegate and officer election, or the candidacy of Mr. Hoffa or any other candidate.  The protester supplied no evidence that the press release supported Mr. Hoffa’s candidacy. 

The Election Officer notes that Joint Council 43, Mr. Hoffa’s employer, includes Local Union 337 and that organizing new workers is a basic trade union function.  In light of these indisputable facts and in the absence of evidence that Mr. Hoffa’s contribution to the Brighton Hospital campaign supported his candidacy for IBT general president, the Election Officer does not find the Rules were violated.

I.  Appearance at Local Union 81 on December 18, 1994

Tom Gilmartin, Jr.

December 12, 1995

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The protester alleges Mr. Hoffa used union resources to travel to Portland, Oregon on December 18, 1994 at the invitation of Local Union 81 to campaign at a monthly membership meeting and a steward appreciation event.  The protester charges that Local Union 81 Principal Officer Larry Wilson and executive board officers violated the Rules by using dues money to pay Mr. Hoffa’s travel and lodging expenses for his trip to Portland.

Joint Council 43 and Mr. Hoffa state that Mr. Hoffa did not use union resources to travel to Portland.  Mr. Hoffa asserts that he was not electioneering in Portland, but went there on his own time and with his own money to give several talks on matters of general interest to Teamster members.  Local Union 81 denies that Mr. Hoffa used union funds to finance his trip to Portland.  Local Union 81 President Gary Stanton states that Mr. Hoffa was invited to speak at a Local Union 81 monthly membership meeting and its Shop Stewards’ Appreciation Dinner on the subject of the present need for unions.

As evidence of Mr. Hoffa’s campaigning, the protester provided the Election Officer with a clipping which the Election Officer recognized as an article from the January 1995 Oregon Teamster, a publication of Joint Council 37 (which includes Local Union 81), at issue in Ruscigno, P-065-JC37-EOH, (July 21, 1994), aff’d, sub nom In Re: Sullivan, 95 - Elec. App. - 7 (August 14, 1995).  There, the protester charged that the publication improperly promoted Mr. Hoffa’s candidacy.  The Election Officer noted there that Mr. Hoffa’s speeches at Local Union 81, as reported, addressed national politics, including legislative issues before Congress.  The protester here has produced no evidence that Mr. Hoffa campaigned in or used union funds to fund his trip to Portland.  Therefore, there is no evidence that his appearance in Portland violated the Rules. 

              Based upon the foregoing, 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, Esquire

              Latham and Watkins

885 Third Avenue, Suite 1000

New York, NY 10022

Fax 212-751-4864

Tom Gilmartin, Jr.

December 12, 1995

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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:              Kenneth Conboy, Election Appeals Master

Regional Coordinators