OFFICE OF THE ELECTION OFFICER
for the INTERNATIONAL BROTHERHOOD OF TEAMSTERS
400 N. Capitol Street NW, Suite 855
Washington, DC 20001
(202) 624-3500
(800) 565-VOTE
Facsimile (202) 624-3525
Barbara Zack Quindel Milwaukee Office:
Election Officer Perry, Lerner & Quindel, S.C.
823 N. Cass Street
Milwaukee, WI 53202
(414) 272-7400
July 12, 1995
VIA UPS OVERNIGHT
Paul Heiman
20045 W. 119th St.
Olathe, KS 66061
Philip E.Young, President
Teamsters Local Union #41
4501 Van Brunt Blvd.
Kansas City, MO 64130
RE: Election Office Case No. P-043-LU41-EOH
Gentlemen:
Paul Heiman
July 12, 1995
Page 1
This 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”)[1]. The protestor, Paul Heiman, a member of Local Union 41, alleges that the officers of Local Union 41 have impermissibly used union resources, e.g., photocopy machines, the union hall, etc. to distribute, at monthly membership meetings, literature attacking General President Ron Carey.
The protest was investigated by Regional Coordinator Bruce Boyens. The protestor alleges that, at the November 1994 meeting of the Local Union 41 membership, photocopies of an October 7, 1994 letter from a Central States Pension Fund (“the Fund”) representative to General President Carey were distributed. The Fund states in the October 7 letter that it is writing in response to an October 5, 1994 letter from the General President. The General President’s letter, which was distributed through the IBT’s TITAN computer network on October 6, was not given to the Local Union membership.
The exchange of letters, both of which have been provided to the Election Officer, concerns whether Teamster members covered by the Fund may pay for pension credits towards a certain class of pension benefits. In the General President’s letter, he urges the Fund to reverse its decision to refuse such contributions. In its response, the Fund charges that the General President has known for months of the Fund’s practice with regard to the credits and has stated previously that he did not disagree with the practice. The Fund further asserts that it is being attacked by the General President for “political motives”.
The protestor claims that by handing out the letter from the Fund, but failing to distribute the letter from the General President, Local Union 41 officers damaged the General President. The protestor also alleges that the Local Union has frequently made available, both at the Local Union hall and during membership meetings, literature attacking the General President. The only example of this provided to the Election Officer is a flier produced by the “Real Teamsters Caucus” describing its purposes and activities, which was distributed by Local Union 41 members during the December 1994 membership meeting while the Local Union President was responding to the protester’s question as towhether the Local Union or Joint Council 56 has ever contributed Union dues to the Caucus.[2]
The Rules at Article XII, Section 1(b), prohibit a union from making any “campaign contribution”, which is defined by the Rules as any contribution “where the purpose, object or foreseeable effect of that contribution is to influence, positively or negatively, the election of a candidate for [the 1996 International] Convention delegate or alternate delegate or International Officer position.”
Article VIII, Section 11(c) of the Rules reads:
Paul Heiman
July 12, 1995
Page 1
Union funds, facilities, equipment, stationery, personnel, etc. may not be used to assist in campaigning unless the Union is reimbursed at fair market value for such assistance, and unless all candidates are provided equal access to such assistance and are notified in advance, in writing, of the availability of such assistance. Union officers and employees provided with Union-owned or leased cars, if otherwise afforded the right to utilize those cars for personal activities, may use the cars for campaign activities, provided no costs, or expenses incurred as a consequence, of such use are paid out of Union funds or other prohibited sources.
To ascertain whether a communication supports or attacks a candidacy in violation of Section 401(g), the Election Officer has looked to the “tone, content and timing” of the communication. See, In re: Riley, Case No. P-053-LU391-EOH (July 10, 1995)
Looking at the content of the communications at issue, it is clear that the letter from the Fund concerns the General President’s position on employee contributions to the Fund. There is no mention of the 1995-96 delegate and International officer elections. Thus, the content of the letter, with or without the letter from the General President, pertains to an internal Union issue, not to the elections regulated by the Rules.
The Real Teamsters Caucus flier describes its purpose as to “promote union democracy, maintain regional autonomy and defend the traditional independence of Local Unions, Joint Councils, [and] state and regional Conferences” The leaflet describes the Caucus and contains no political content.
Most significantly, the October 1994 letter, and the leaflet handed out in December 1994 were distributed far in advance of the 1995-96 delegate and International officer elections. As the IBT elections come closer, the Election Officer will give a heightened degree of scrutiny to communications claimed to constitute campaigning. See, Dole v. Police Officers, 744 F. Supp. 413, 417 (E.D. N.Y. 1990)(“Considered under the totality of the circumstances otherwise permissible statements may take on a different hue when viewed against the backdrop of an election campaign.”)
Therefore, having reviewed the tone, content and timing of the literature at issue here, the Election Officer finds no violation.
Because the Election Officer does not find that the letter and leaflet constitute campaign activity, there is no prohibition against the use of Union funds for their distribution. The distribution of the materials was legitimate union activity, and as such, is not in violation of Article VIII, Section 11.
Based upon the foregoing, the protest is DENIED.
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:
Paul Heiman
July 12, 1995
Page 1
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
Michael D. Gordon, Regional Coordinator
[1]This “reach-back” protest was filed within the thirty day period following the final promulgation of the Rules on April 24, 1995, and alleges violations occurring prior to the issuance of the Rules. The Rules at Article XIV, Section 2(a), state:
Protests regarding violations of the [Labor-Management Reporting and Disclosure Act, as amended] (including violations of the IBT Constitution) allegedly occurring prior to the date of issuance of the Rules and protests regarding any conduct allegedly occurring within the first twenty-eight (28) days after issuance of the Rules must be filed within thirty (30) days of the date of issuance, or such protests shall be waived.
[2] The protester also asked if Mr. Young could give any assurance that no dues money will be used to finance “secret campaign funds or to prevent Teamster reform”.