Protest Decisions

October 12, 1995

VIA UPS OVERNIGHT

Gene Giacumbo

October 12, 1995

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Gene Giacumbo

October 12, 1995

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Re:  Election Office Case No. P-102-IBT-PNJ 

Gentlemen:

A pre-election protest was filed with the Election Officer pursuant to Article XIV, Section 2(b) of the Rules for the 1995-1996 IBT International Union Delegate and Officer Election (“Rules”).

By letter dated June 27, 1995, International Vice President Gene Giacumbo charged that Matt Witt, Director of the IBT’s Communications Department, Communications Coordinator Nancy Stella “and others,” through pro-Carey communications relating to Greg Tarpinian, a labor consultant and editor of two widely disseminated labor newsletters circulated by the Labor Research Association (“LRA”), used union resources to promote General President Ron Carey’s candidacy and to campaign against prospective candidates for union officer and delegate positions.

Gene Giacumbo

October 12, 1995

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The IBT does not deny that Mr. Witt,[1] used union resources to produce two flyers, one of which was distributed to reporters and to Teamsters for a Democratic Union (“TDU”) Organizer Ken Paff for distribution at a December 1, 1994 LRA fundraising dinner.  The IBT argues that the flyers related to matters of legitimate union interest and do not promote Mr. Carey’s candidacy.[2]  According to the IBT, the text from the flyers, instead, pertain to an ongoing dispute between the IBT and Greg Tarpinian.

This protest was investigated by Regional Coordinator Peter V. Marks, Sr.   The Election Officer’s review included an examination of the flyers’ text and a background investigation into the relationship between the IBT and Mr. Tarpinian.

Article VIII, Sections 11(a) and (b) of the Rules protect the rights of IBT members and officers to “participate in campaign activities, including the right to run for office, to . . . support or oppose any candidate, to aid or campaign for any candidate, and to make personal campaign contributions.”  Article XII, Section 1(b)(3) states that “[n]o union funds or other things of value shall be used, directly or indirectly, to promote the candidacy of any individual.”

In addition, use of union-financed communications to promote a member’s candidacy for International officer or delegate is prohibited by the Rules.  Article VIII, Section 8(a) states:  “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 . . .”

A two-page flyer entitled “Update on Greg Tarpinian” (“Update”) relates the details of an ongoing dispute between the IBT and Mr. Tarpinian concerning the bias in his reporting on internal union issues in the LRA newsletter Trade Union Advisor (“Advisor”).  It also recounts comments Mr. Tarpinian allegedly made about Mr. Carey and the IBT.

Gene Giacumbo

October 12, 1995

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The Update flyer notes that, although Mr. Tarpinian has given assurance to Mr. Carey that he is not involved in anti-reform efforts within the IBT, “the facts speak otherwise.”  According to the flyer, Mr. Tarpinian in September 1994 met to strategize with members of the Real Teamster Caucus, which represents “the anti-reform forces in the union.”  In November 1994, as stated in the flyer, Mr. Tarpinian spoke to members of the Ohio Conference of Teamsters on the issue of union reform.[3]  An excerpt from the August 30, 1994 issue of the Advisor is cited as evidence of Mr. Tarpinian’s anti-reform bias.  The flyer also states:  “Tarpinian quotes R.V. Durham attacking Carey over the union’s finances.  No facts or quotes are presented that might suggest there is another side of the story.”

At paragraphs 11-12, the flyer refers to action taken by convention delegates at the 1991 Convention on the issue of strike benefits and Mr. Tarpinian’s accuracy in reporting the activities that took place at the Convention.  These paragraphs then refer to “facts” concerning strike benefits and the financial status of the union, which Mr. Tarpinian allegedly failed to report on in the Advisor.

The other flyer is entitled “Are Your Dollars Tonight Being Used to BLOCK TEAMSTER REFORM” (“Reform”).  Relevant to this protest, the flyer states: 

[D]id you know that LRA’s Greg Tarpinian has increased his involvement in the internal political caucus that seeks to reverse the process of Teamster reform?

On September 11 in Chicago, Tarpinian took part as an advisor at the first big strategy session of Old Guard Teamster leaders establishing the anti-Carey “Real Teamster Caucus.”

Tarpinian joined with what we Teamster members call the “Royal Teamster Caucus” in planning how to elect delegates to our 1996 Convention who would reverse the reforms of the past three years--and how to defeat Ron Carey in the 1996 elections and turn back the clock in our union.

This IBT-produced flyer was distributed at an LRA fundraising dinner in December 1994.  The dinner was attended by Teamster members, and the flyer was reproduced by TDU on the reverse side of a TDU leaflet entitled “Should the Teamsters be returned to the Old Guard?”

              The IBT urges the Election Officer to consider their textual messages in the context of the ongoing dispute between the IBT and Mr. Tarpinian.  The Election Officer examined the February 16, 1993 issue of the Advisor cited to her by the IBT.  In that issue, under the boldface headline “IBT” is a paragraph commenting on the financial problems facing the union and the status of ongoing contract negotiations.  Two of the seven sentences in the article report on the activities of 1991 candidate for general president, R.V. Durham, who opposed a contract Mr. Carey negotiated for Northwest Transport.

Gene Giacumbo

October 12, 1995

Page 1

In the August 30, 1994 issue of the Advisor, there is an article entitled “Dues Blues,” which quotes Mr. Durham’s views on the IBT’s financial condition and the need for a member-ship dues increase.  Four of the article’s six sentences report on the negative reactions to

Mr. Carey’s proposed dues increase.  The October 11, 1994 issue of the Advisor contains a three-sentence article entitled “Teamster Financial Crisis.”  The article reported on action taken by the IBT’s General Executive Board to impose a dues increase on local unions and to cut “unspecified expenses” from the IBT’s operating budget.  The article compared the union’s net worth with its net worth at the time Mr. Carey took office.

Finally, the Election Officer reviewed an article entitled “Office Workers’ Union Claims Teamsters Resisting Talks,” which appeared in the April 15, 1993 edition of Journal of Commerce. In the article’s eighth paragraph, “a labor official familiar with the negotiations” is quoted.  The IBT argues that Mr. Tarpinian was an unidentified source for that article, and his role as a source for that article motivated future responses by Mr. Witt on the IBT’s behalf.

Several pieces of additional correspondence between various IBT representatives and

Mr. Tarpinian were presented to the Election Officer, along with IBT internal memorandum, generally supporting the union’s contention of a long-running dispute between the union and

Mr. Tarpinian. 

While these submissions explain why Mr. Witt responded to articles produced by

Mr. Tarpinian, the ongoing dispute does not give license to the IBT to make an improper campaign contribution in violation of Article XII, Section 1(b)(3) or an improper communication under Article VIII, Section 8(a) of the Rules.

Even assuming the Update flyer was circulated to union members, no mention is made in the Update flyer of the 1996 election or Mr. Carey as a candidate.  The 1991 IBT convention and election is mentioned only in conjunction with a discussion of the strike fund and the delegates’ vote at the 1991 convention for the change in strike benefits.  The flyer discusses these issues as they relate to Mr. Tarpinian’s reporting.  Therefore, the Election Officer finds that the Update flyer does not support Mr. Carey’s candidacy.

The Reform flyer, however, goes beyond what otherwise might have been proper and legitimate union communications in the paragraphs specifically cited here.  The flyer not only mentions the 1996 IBT convention, but directly refers to Mr. Carey as a candidate for reelection and the efforts of his political enemies to “defeat” him and “turn back the clock on our union.”

The article “implicitly urges members [to] . . . support[ ] for Mr. Carey’s reform efforts.”  Martin, supra. 

In consideration of the foregoing, Mr. Giacumbo’s protest is GRANTED as to the Reform flyer and DENIED in all other respects.

When the Election Officer determines that the Rules have been violated, she "may take whatever remedial action is appropriate."  Article XIV, Section 4.  The Rules provide a wide range of examples of possible remedies, without providing any limitation.  The broad scope of her supervisory responsibility for the elections, as recognized by the Consent Decree and subsequent decisions of the Court, gives the Election Officer substantial discretion in formulating a remedy to fit the particular violation.  In fashioning the appropriate remedy, the Election Officer looks to such factors as the nature and seriousness of the violation, the violations’s potential for interfering with the election process, and which remedy will best protect the rights of members to a free and fair election.

In light of these findings, Mr. Carey’s campaign is ordered to reimburse the IBT for the expenses incurred by the union in distributing campaign literature.  In computing such expenses, Mr. Witt shall submit to the Election Officer within seven (7) days of the date of this decision, an affidavit stating the following relevant facts:  (1) Mr. Witt’s annual salary;

(2) the number of hours Mr. Witt spent preparing and distributing the Reform flyer; (3) the names and salaries of other IBT staffers who helped prepare or distribute the Reform flyer and the number of hours, if any, these staffers spent doing so; and (4) what production expenses were incurred by the IBT in distributing the flyer including but not limited to facsimile, postage and telephone.

Upon receipt of Mr. Witt’s affidavit, the Election Officer will issue a supplementary opinion to that issued today.  In the supplementary opinion, the Election Officer will direct the Carey Campaign to repay an amount ordered by the Election Officer to the IBT for its campaign contribution.

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, 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

Peter V. Marks, Sr., Regional Coordinator