July 26, 1995
VIA UPS OVERNIGHT
James Jacob, et al.
July 26, 1995
Page 1
James Jacob
1377 Sassaquin Avenue
New Bedford, MA 02745
Michael Ruscigno
302 Summit Avenue
Jersey City, NJ 07306
Darryl Sullivan
2059 Richmond
Arlington, TX 76014
Teamsters Local Union 243
2741 Trumbull Ave.
Detroit, MI 48216
Paul Levy, Esq.
Public Citizen Litigation Group
2000 P Street, NW, Suite 700
Washington, DC 20036
James Jacob, et al.
July 26, 1995
Page 1
RE: Election Office Case No. P-068-LU243-EOH
Gentlemen:
James Jacob, et al.
July 26, 1995
Page 1
A pre-election protest was filed pursuant to Article XIV, Section 2 (a) of the Rules for the 1995-1996 I.B.T. International Union Delegate and Officer Election (“Rules”).[1] The protesters, James Jacob, a member of Teamsters Local 251, Michael Ruscigno, a member of Local Union 138, and Darryl Sullivan, a member of Local Union 745 contend that the Local 243 Mirror was used to advance the candidacy of Sam Theodus, an International Vice President of the IBT, specifically citing the October, 1994 issue.
Local Union 243 responds that affiliate publications have the right to publicize positions on IBT issues that differ from those taken by the current national administration. With respect to the October 1994 issue of the Local 243 Mirror, the Local Union states that the subject addressed by Mr. Theodus was newsworthy and unrelated to the 1996 election of delegates or International officers.
The protest was investigated by Election Office Staff Attorney Helen Boetticher.
The Rules, at Article VIII, Section 8, provide the following prohibition, “No publication or communication financed, directly or indirectly, by a Union may be used to support or attack any candidate or the candidacy of any person...” Section 8(a) also sets forth specific illustrations of improper support of a candidate by a Union-financed publication.
As the Election Officer stated in Ruscigno, P-067-LU20-EOH (July 19, 1995), in determining whether a union-financed publication violates the Rules, the Election Officer must
first determine if the subject of the communication was a “candidate”[2] at the time of publication. It appears that Mr. Theodus was not a candidate within the meaning of the Rules when the protested article was published.
The Election Officer is cognizant that Mr.Theodus, as an incumbent International Vice- President, remains an institutional officer of the IBT. As such, he is often an important participant in many matters of interest to the membership and, therefore is more likely to have his participation in such matters the subject of inclusion in a Local Union’s reports to the membership. So long as a published report on the activity of an incumbent “is addressed to the regular functions, policies and activities of such incumbents as officers involved in matters of interest to the membership, and not as candidates for re-election, there is no violation of [the Act]” Donovan v. Metropolitan District Council, 797 F.2d 140, at 145 (3rd Cir. 1986), citing Camarata v. International Brotherhood of Teamsters, 478 F. Supp. 321, at 330 (D.D.C. 1979).
James Jacob, et al.
July 26, 1995
Page 1
The article which covers the annual Stewards’ Fall Dinner Meeting did not mention Mr. Theodus until the last paragraph. A second article contained a summary of Mr. Theodus’ comments under the headline: “IBT Vice President Sam Theodus Endorses Michigan-Ohio Strike Fund.” The protested articles contained newsworthy items, made no mention of Mr Theodus’s candidacy or the election of International officers or delegates and, therefore, are not in violation of the Rules.
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.
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
[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]Under the Rules, “candidate” is defined as:
[A]ny member who is actively seeking nomination or election for any Convention delegate position or International Officer position. The term includes any member who has accepted any campaign contribution as defined by the Rules or made any expenditure, where the purpose, object or foreseeable effect of the contribution or expenditure is to influence the election of that member to any such position.