Protest Decisions

November 28, 1995

VIA UPS OVERNIGHT

James P. Hoffa

November 28, 1995

Page 1

James P. Hoffa

2593 Hounds Chase

Troy, MI 48098

Ron Carey, General President

International Brotherhood of Teamsters

25 Louisiana Avenue, N.W.

Washington, DC 20001

Tom Sever, General Secretary-Treasurer

International Brotherhood of Teamsters

25 Louisiana Avenue, N.W.

Washington, DC 20001

John Sullivan, Associate General Counsel

International Brotherhood of Teamsters

25 Louisiana Avenue, N.W.

Washington, DC 20001

Herbert Barker, President

Barker Specialty Company

27 Realty Drive

Cheshire, CT 06410

Dennis A. Ceneviva

489 Broad Street

Meriden, CT 06450

James P. Hoffa

November 28, 1995

Page 1

Re:  Election Office Case No. P-214-IBT-SCE

Gentlemen:

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

James P. Hoffa, a candidate for general president, against General Secretary-Treasurer

Tom Sever and General President Ron Carey.  The protester alleges that Mr. Sever and

Mr. Carey retaliated against the protester’s vendor, Barker Specialty Company (“Barker”), due to its production of campaign materials for the Hoffa ‘96 campaign and thus violated Article VIII, Section 11 of the Rules.  Barker supplies hats to the campaign which contain the IBT logo inside the letter “O” in Mr. Hoffa’s name.

The IBT responds that it did not retaliate against Barker but legitimately sought to protect the union’s patented trademark.  The IBT further contends that the protest is untimely.

Regional Coordinator Bruce Boyens investigated the protest.

James P. Hoffa

November 28, 1995

Page 1

I.              Timeliness

Article XIV, Section 2(b) of the Rules requires that a protest be filed “within two (2) working days of the day when the protester becomes aware or reasonably should have become aware of the action protested or such protests will be waived[.]”

The protester filed the instant protest on October 26, 1995.  The IBT claims the protest is untimely because Mr. Hoffa alleges violations of the Rules in correspondence dated

May 18, 1995, July 19, 1995, and October 19, 1995 from Mr. Sever to Barker President Herbert Barker.  The IBT states that Mr. Hoffa offers no explanation for the untimeliness of his protest.

The protester asserts that his protest is timely because he “did not become aware of the controversy surrounding my vendor until October 25, 1995.”

The requirement to promptly file protests is an important part of the election process.     The Election Officer finds that Mr. Hoffa filed the protest within two days of becoming aware of the IBT’s actions.  The protest is therefore timely.

II.              Factual Background

Barker is a vendor of specialty items located in Cheshire, Connecticut.  Barker has supplied specialty items to the IBT and various IBT local unions for a number of years and was the exclusive vendor for such items at the 1991 IBT Convention.  Barker also supplies some non-bid items to the International Union.  Barker has also been awarded bids by the International Union for larger price or special orders.

On May 18, 1995, Mr. Sever sent a letter to the president of the company,

Herbert Barker, concerning a prepaid telephone card (“Teamster Tele-Card”) that Mr. Barker was marketing to IBT local unions.  Prior to marketing this item, which contained the IBT logo and a registration mark,

Mr. Barker had not obtained IBT authorization.  Mr. Sever objected to the fact that the telephone card featured the IBT logo and demanded that Mr. Barker “immediately cease and desist from your unauthorized use of the Teamster Collective Membership Mark.”  He further stated:  “Our mark is registered with the U.S. Department of Commerce Patent and Trademark Office . . . and has been used exclusively by the International Brotherhood of Teamsters since December 1, 1940.”

Mr. Barker replied by letter dated May 31, 1995, addressed to Mr. Sever and

Mr. Carey, that “(w)e have stopped selling the ‘Teamster Tele-Card’” because it was a “flop.”  Mr. Barker never mentioned the use of the IBT logo in his letter. 

James P. Hoffa

November 28, 1995

Page 1

Mr. Sever next wrote to Mr. Barker on July 19, 1995.  While Mr. Sever acknowledged Mr. Barker’s response of May 31, he emphasized the IBT’s concern with Mr. Barker’s “unauthorized use of our Collective Membership Mark.”  Mr. Sever asked Mr. Barker to inform his office within 10 days “whether you intend to continue your unauthorized use of the Teamsters Logo on any of your products.”  On September 28, 1995, Mr. Sever advised

Mr. Barker by letter that he had not received a response to his correspondence of July 19, 1995.  Mr. Barker’s inaction, Mr. Sever stated, “leaves the International with no alternative but to begin the process to compel you to cease and desist from your unauthorized use” of the Teamsters logo.

Mr. Barker received this correspondence on October 5, 1995.  He immediately telephoned Mr. Sever and told him that he had never received the latter’s July 19, 1995 letter.  In response to this call, Mr. Sever mailed a copy of his September 28, 1995 letter to

Mr. Barker by overnight delivery, but did not include a copy of his July 19, 1995 corre-spondence.  Mr. Barker again telephoned Mr. Sever’s office the following day and asked a staffperson to fax a copy of the July 19 letter to him.  By letter to Mr. Sever dated October 9, Mr. Barker informed him that he had not yet received the fax of the July 19, 1995 letter.  On October 11, an IBT staff attorney faxed the July 19, 1995 letter to Mr. Barker.

Mr. Barker wrote to Mr. Carey on October 11, 1995.  Mr. Barker stated that his company has had a good relationship with the Teamsters for many years and that he was “not sure what is going on.”   Mr. Barker requested a telephone conference with Mr. Carey as soon as possible.

On October 19, Mr. Sever replied to Mr. Barker, by letter, on behalf of Mr. Carey.  After reviewing the past correspondence between the IBT and Mr. Barker, Mr. Sever stated that Mr. Barker had been unresponsive concerning the use of the International’s collective membership mark.  Mr. Sever further wrote:

[P]lease be advised that because of your continued lack of response, we are now fully prepared to take the necessary legal steps to prevent you from your unauthorized use of the International Union’s collective membership mark.

III.              Use of the IBT Logo on Campaign Materials

Article XII, Section 1 of the Rules pertains to campaign contributions. 

Section 1(b)(3) prohibits the use by candidates of “the Union’s official stationery with the Union’s name, insignia or other mark.”  The next sentence, however, specifies that “(o)ther use of the Union’s name, insignia or mark by Union members, in connection with the exercise of rights under the Rules, is permitted.”

James P. Hoffa

November 28, 1995

Page 1

The IBT acknowledges that Article XII, Section 1(b)(3) permits use of the IBT logo on campaign materials.  The IBT contends that it “has not complained to Barker about its production of campaign hats with the IBT logo, nor has it demanded that Barker cease producing them.”  (Emphasis in original).  Instead the IBT contends that the correspondence between Mr. Sever and Mr. Barker demonstrates that the IBT “meant business in protecting its logo as to non-campaign-related, strictly commercial use.”  In support of its position, the IBT cites Article VII, Section 9(a) of its Constitution, which gives the International Union “full control over all marks, labels and other insignia.”  Bob Hauptman, Executive Assistant to

Mr. Carey, admits that subsequent to June 1995 he was aware that Barker was a vendor for the Hoffa campaign. 

The Election Officer finds that the IBT’s actions, no matter what their underlying purpose, violated Article XII, Section 1(b)(3) of the Rules.  The initial letter from Mr. Sever to Mr. Barker, dated May 18, 1995, refers to Barker’s use of the Teamsters logo in one specific item, the prepaid telephone card.  All of the subsequent correspondence, however, makes no distinction between campaign and noncampaign materials, and it is unrealistic to think that Mr. Barker would be aware of the position of the Rules on this issue.

Mr. Sever’s July 19 letter, for example, refers to Barker’s “unauthorized use of the Teamsters logo on any of your products.”  (Emphasis supplied).  The letters dated

September 28 and October 19 do not deviate from this approach but, in fact, indicate that the IBT would commence legal action against Mr. Barker if his company did not immediately stop its use of the logo.

The Election Officer has consistently upheld the right of candidates to utilize the IBT logo on their campaign literature.  See Majka, P-226-LU182-PGH, aff’d, 91 - Elec. App. - 40 (January 18, 1991); Conaway, P-541-LU420-CLA, aff’d, 91 - Elec. App. - 87 (March 6, 1991);  Pettit, P-654-LU630-CLA (March 15, 1991); Miranda, P-685-LU420-CLA

(March 25, 1991).

In Majka, for example, the protester claimed that campaign literature distributed by a delegate was improper because it featured the IBT logo.  The Election Officer, citing

Article X, Section 1(b)(3) of the 1991 Rules,[1] stated that the literature in question did not violate the Rules.  Rather, the Election Officer pointed out Section 1(b)(3) only disallows a candidate’s use of “the Union’s official stationery with the Union’s name, insignia, or other mark.”  The Election Officer concluded:  “(N)either Article X, Section 1(b)(3) of the Rules nor any other provision of the Rules prohibits utilization of the insignia of the IBT on campaign literature.”

James P. Hoffa

November 28, 1995

Page 1

It is interesting to note that the current Rules, at Article XII, Section 1(b)(3), added the specification that “(o)ther use of the Union’s name, insignia or mark by Union members, in connection with the exercise of rights under the Rules, is permitted.”  Even without this language, the Election Officer in 1991 found that the Rules clearly permitted use of the IBT logo in campaign material.

The Election Officer finds that the IBT violated Article XII, Section 1(b)(3) by ordering Barker to cease its use of the IBT logo on any of its products.[2]

IV.              Retaliation

The protester asserts that Mr. Sever’s correspondence to Mr. Barker “can only be seen as an attempt to retaliate against Barker for their printing of Hoffa ‘96 campaign material.”  Mr. Hoffa further contends that Mr. Sever and Mr. Carey have utilized their positions in the IBT “to threaten their opponents’ vendors as well as misusing union funds to carry out these unlawful attacks.”

The Rules, at Article VIII, Section 11(f), prohibit “[r]etaliation or threat of retaliation by the International Union . . . against a Union member, officer or employee for exercising any right guaranteed by this or any other Article of the Rules.”   While Mr. Barker, as a vendor and an employer, does not fall within the purview of this section, the Election Officer understands the protester to mean that the IBT was engaged in retaliation against him through its correspondence with his vendor.

The protester characterizes the tone of Mr. Sever’s correspondence as “bellicose and threatening.”  The IBT counters that it was very frustrated by Mr. Barker’s response of

May 31, 1995 to Mr. Sever’s initial letter concerning Barker’s production of the Teamster Tele-Card.  Rather than acknowledging and addressing his company’s unauthorized use of the Teamsters logo, Mr. Barker, in the IBT’s view, simply stated that he would stop producing the telephone card because it was unprofitable.  The IBT asserts that Mr. Barker continued to ignore the union’s concerns about his use of the logo expressed in Mr. Sever’s subsequent correspondence.

James P. Hoffa

November 28, 1995

Page 1

The IBT states that it is in the process of formulating a policy to regulate the use of the Teamsters logo by vendors, local unions, members, etc.  Until the policy is finalized, the IBT has taken the position that it will not authorize use of the logo by any of these entities.[3]  Internal documents supplied by the IBT demonstrate its concern that vendors in particular are making use of the logo in their merchandise without obtaining permission from or paying any royalties to the international union.

The Election Officer finds that the actions by the IBT were taken to protect unauthorized use of its logo and not to retaliate against the candidacy of Mr. Hoffa.

For the foregoing reasons, the protester’s claim concerning the IBT logo is GRANTED; and the protest is DENIED in all other respects.

V.              Remedy

To remedy the violation of Article XII, Section 1(b)(3) of  the Rules, the IBT is ordered to immediately cease and desist from its insistence that Barker Specialty Company terminate its use of the IBT logo on all of its products.  Within seven (7) days of the date of this decision, the IBT shall send the attached letter to Herbert Barker, reprinted on IBT stationery, signed by General Secretary-Treasurer Sever, distinguishing between the use of the IBT logo on campaign and noncampaign materials.  Within two (2) days of sending the attached letter, Mr. Sever shall file an affidavit with the Election Officer setting forth in detail the steps it has taken to comply with this Decision and Order.

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 and Watkins

885 Third Avenue, Suite 1000

New York, NY 10022

Fax (212) 751-4864

James P. Hoffa

November 28, 1995

Page 1

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

Bruce Boyens, Regional Coordinator

Date ______________________

Mr. Herbert Barker

President

Barker Specialty Company

27 Realty Drive

Cheshire, CT 06410

Dear Mr. Barker:

This is in regard to my letter to you of October 19, 1995 in which I stated that the International Brotherhood of Teamsters is “now fully prepared to take the necessary legal steps to prevent you from your unauthorized use of the International Union’s collective membership mark.”

As you may be aware, Mr. James P. Hoffa filed a protest with the Election Officer for the 1995-1996 IBT International Union Delegate and Officer Election concerning the IBT’s demand that the Barker Specialty Company cease its use of the Teamsters logo in merchan-dising the company products.  By decision dated November 28, 1995, the Election Officer found that the IBT violated the “Rules for the 1995-1996 IBT International Union Delegate and Officer Election” by failing to distinguish the permissibility of the use of the IBT logo without prior authorization when such use involves campaign materials.

In accordance with the decision of the Election Officer, please be assured that the IBT will not interfere with your company’s use of the IBT logo on items you manufacture and supply to Mr. Hoffa for his 1996 campaign or any other campaign covered by the “Rules for the 1995-1996 IBT International Union Delegate and Officer Election.”

Sincerely,

Tom Sever

General Secretary-Treasurer