Protest Decisions

March 5, 1996

VIA UPS OVERNIGHT

Jerry Ranita

March 5, 1996

Page 1

Jerry Ranita

P.O. Box 135

Cart Road

Dover Plains, NY 12522

Thomas R. O’Donnell, President

Teamsters Local Union 817

1 Hollow Lane

Lake Success, NY 11042

Susan Davis

Cohen, Weiss & Simon

880 W. 42nd Street

New York, NY 10036

Jerry Ranita

March 5, 1996

Page 1

Re:  Election Office Case No. P-383-LU804-NYC

Gentlepersons:

A pre-election protest was filed pursuant to Article VIII, Section 2(b) of the Rules for the 1995-1996 IBT International Union Delegate and Officer Election ("Rules") by Jerry Ranita, business agent for Local Union 804.  Mr. Ranita alleges that Thomas O’Donnell, President of Local Union 817, engaged in improper campaigning during work hours.

The protest was investigated by New York City Protest Coordinator Barbara C. Deinhardt.

The alleged improper campaigning took place on January 31, 1996, at a rally to support striking members of Local Union 584 at the Farmland Dairy Company in Wallington, New Jersey.  In response to a request from Joint Council President Anthony Rumore, about 150 IBT members and officials attended the rally, including many representatives from other local unions within Joint Council 16.

Jerry Ranita

March 5, 1996

Page 1

The rally was held between 11:00 a.m. and 1:30 p.m.  As part of the program, the President of Local Union 584, William Whelan, asked various local union officers to speak, including Mr. O’Donnell.  According to Mr. Whelan, Mr. O’Donnell was the eleventh speaker, at about 12:30 to 12:45 p.m.  Mr. Whelan states:

              that as Mr. O’Donnell was getting up onto the car tailgate that speakers were using, he asked Mr. Whelan, “What’s this cocksucker's name,” referring to the owner of the dairy;

              that Mr. O’Donnell then said to the crowd “We’ve got to get rid of this cocksucker” while pointing over his shoulder to the plant;

              that Mr. O’Donnell was immediately embarrassed at the fact that women and children were present, and that he quickly started to get down; and

              as he was getting down, Mr. O’Donnell stood up again and said, “Vote for the Hoffa ticket.”

Mr. O’Donnell’s own recollection, although less detailed, is similar.  He states that he said, “We’ve got to get this cocksucker out here,” referring to the plant owner.  He further states that “since I’m on the Hoffa ticket, I added, ‘and get the Hoffa slate in later’ . . .”  With minor variation, this version is corroborated by member Richard Volpe.  Mr. Volpe specifically states that he understood Mr. O’Donnell’s off-color remark to be directed at the owner of the dairy.

Mr. Ranita alleges that Mr. O’Donnell’s off-color remark was not directed at the dairy owner, but at General President Ron Carey by name.  According to his protest,

Mr. O’Donnell said, “We will get things done faster and better once we get this cocksucker Carey out of here and put Hoffa in.”

This version, however, is not well-corroborated.  When Mr. Ranita was interviewed by Protest Coordinator Deinhardt, his report differed from his protest in not alleging that

Mr. O’Donnell used Mr. Carey’s name.[1]  Furthermore, the only other witness who reported hearing Mr. O’Donnell refer to Mr. Carey, John Brown, reported a version of

Mr. O’Donnell’s remark that does not use Mr. Carey’s name, changes the epithet to one unreported by anyone else, and reverses the order of Mr. O’Donnell’s off-color remark and his campaigning for the Hoffa slate: “I hope you people out there vote for Jimmy Hoffa so we can get rid of that asshole in Washington that sold us out.”

Upon consideration of the whole record, the Election Officer credits the version of

Mr. O’Donnell’s statement given by Messrs. Whelan, O’Donnell and Volpe.  This version contains admitted campaigning in the approximately six words said in favor of the Hoffa slate.

Jerry Ranita

March 5, 1996

Page 1

Article VIII, Section 11(b) of the Rules protects the right of all local union officers and employees, if members, “to participate in campaign activities, including the right to run for office, to openly support or oppose any candidate, to aid or campaign for any candidate, and to make personal campaign contributions.”  The right, however, is subject to the important restriction that “such campaigning must not involve the expenditure of Union funds.”  Accordingly, “officers and employees (and other members) of the Union may not campaign on time that is paid for by the Union.”  This restriction is qualified, in turn, by the section of the Rules at issue in this protest: “Campaigning incidental to regular Union business is not, however, violative of this section.”

Mr. O’Donnell attended the rally at the Farmland Dairy in response to Joint Council President Rumore’s call for representatives from other local unions to support the strikers from Local Union 584.  Mr. O’Donnell’s remarks, although brief, were part of a program organized by Local Union 584 President Whelan and composed, in large part, of such representatives from other local unions.  The record reflects that Mr. O’Donnell was the eleventh speaker.

In this context, the Election Officer finds that Mr. O’Donnell’s remark favoring the Hoffa slate, made as an afterthought as he was getting down from the tailgate, was incidental to his attendance at the rally and to his participation in the program.  See Wise,

P-317-LU728-CHI (February 21, 1996) (attendance by local union officer at campaign event while participating in three-day Teamsters Human Rights Commission meeting found incidental); Newhouse, P-253-LU435-RMT (January 4, 1996) (“While Ms. Carroll engaged in campaign activity during union time, the short portion of her conversation enlisting the Local Union 435 member in campaign activity during the course of transacting legitimate union business was incidental to that business”).

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.

Latham & Watkins

885 Third Avenue, Suite 1000

New York, NY 10022

Fax (212) 751-4864

Jerry Ranita

March 5, 1996

Page 1

Copies of the request for hearing must be served on the parties listed above as well as upon the Election Officer, 400 N. Capitol Street, Suite 855, Washington, DC 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

Barbara C. Deinhardt, Regional Coordinator