June 7, 1996
VIA UPS OVERNIGHT
Donnie Von Moore, et al.
June 7, 1996
Page 1
Donnie Von Moore
824 E. 52nd Street
Chicago, IL 60615
Robert D. Walston
7133 S. 86th Avenue
Justice, IL 60458
Philip John
100 Park Avenue #601
Calumet City, IL 60409
Earnestine Dixon
2831 W. Congress
Chicago, IL 60612
Richard Lopez
606 N. 6th Avenue
Maywood, IL 60153
Jerry Broaddus
7500 Elmhurst Road, Lot 46
Des Plaines, IL 60018
James P. Hoffa
2593 Hounds Chase
Troy, MI 48098
Sam Matyas
5820 Kouba Drive
Berkeley, IL 60163
Movement Towards Members Slate
c/o Clinton Fluker
1440 W. 123rd Street
Chicago, IL 60643
Eddie Kornegay, Trustee
Teamsters Local Union 743
300 S. Ashland Avenue
Chicago, IL 60607
Nathaniel Charny
Cohen, Weiss & Simon
330 W. 42nd Street
New York, NY 1003
Donnie Von Moore, et al.
June 7, 1996
Page 1
Re: Election Office Case No.P-670-LU743-CHI,P-723-LU743-CHI,P-725-LU743-CHI
Corrected Letter
Donnie Von Moore, et al.
June 7, 1996
Page 1
Gentlepersons:
Various members of Local Union 743 filed pre-election protests pursuant to
Article XIV, Section 2(b) of the Rules for the 1995-1996 IBT International Union Delegate and Officer Election (“Rules”). The Election Officer deferred the protests for post-election review, pursuant to her authority under Article XIV, Section 2(f)(2) of the Rules.
In P-670-LU743-CHI, Donnie Von Moore, a candidate for delegate on the Local 743 Movement Towards Members (“MTM”) slate, alleges that Robert Watson, Richard Lopez, Sam Matyas and Jerry Broaddus misrepresented themselves as business agents for Local Union 743 in order to gain access to work sites to campaign for the Take Back Local 743 (“Take Back”) slate. In P-723-LU743-CHI, Robert Walston and Philip John allege that an MTM slate campaign flyer had the words “LOCAL 743,” printed on it in the return address of a drawing of an envelope. They contend the flyer thus improperly suggests that it is an official Local Union 743 document and that the MTM slate was endorsed by the local union. In
P-725-LU743-CHI, Earnestine Dixon, a candidate for delegate on the Take Back slate, alleges that Clinton Fluker, a business agent for the local union and a candidate for delegate on the MTM slate, retaliated against her by conducting an election for a new shop steward at Stiffel Lamp Company, where she was the incumbent shop steward, and permitting the ballots in the election to be mishandled and miscounted.
Adjunct Regional Coordinator Dennis M. Sarsany investigated these protests.
Ballots were counted in the local union delegate election on April 27, 1996. All 26 delegate and four alternate candidates on the Take Back slate were elected; no candidates on the MTM slate were elected. The difference between the Take Back delegate candidate with the fewest votes and the MTM candidate with the most votes was 1,058 votes; in the alternate delegate contest the margin between the Take Back candidate with the fewest votes and the MTM candidate with the most was 1,074 votes.
1. Misuse of Union Business Cards in P-670-LU743-CHI
Messrs. Broaddus, Lopez, Walston and Matyas are all former business agents for Local Union 743 and supporters of the “Hoffa-Hogan” campaign and the Take Back slate. The protest alleges that these members, who were former business agents of the local union who were removed from there positions, used the business cards identifying them as “business agent” and represented themselves as employed by the local union on union business to improperly gain access to various work sites to campaign and distribute literature for
Mr. Hoffa and the Take Back slate. The charged parties deny this allegation.
Donnie Von Moore, et al.
June 7, 1996
Page 1
Mr. Broaddus’ activities at the R.S. Owens work site were discussed in Lopez, P-667-LU743-CHI (April 8, 1996). In that case, the Election Officer found that he had gained entry to the R.S. Owens work site on March 20 by presenting himself as a business agent engaged in local union business. A witness reports, credibly, that Mr. Broaddus gained access to the General Products Company workplace with an invalid business card and campaigned and distributed literature there. The witness also reports that Mr. Broaddus distributed business cards to the employee-members there with the local union telephone number crossed out and a new telephone number penned in.[1] (Mr. Broaddus also left such a card at the R.S. Owens work site in the episode found to violate the Rules in Lopez.)
The investigation additionally revealed that Mr. Lopez campaigned at the Publix Office Supply Company after gaining entry using the local union business card which identified him as a business agent.
Although similar allegations have been made concerning Messrs. Matyas and Walston, no witnesses have been identified or evidence presented to substantiate the charges.
The Election Officer is extremely troubled by the misrepresentations used here to improperly gain access to employer premises to campaign. Article VIII, Section 11 of the Rules provides all candidates and members with the opportunity to freely campaign for and support candidates for delegate. Candidates and members may not do so, however, on time that is paid for by the union. There is no question that if current Local Union 743 business agents had used their business cards to gain entry to these employers to conduct union business, but instead engaged in campaigning, such actions would violate Article VIII,
Section 11(b) of the Rules. The Rules do not permit non-employee members to campaign inside employer premises. Moreover, the Rules only permit non-employee members to campaign at employers via limited access to the parking lots. Thus, Article VIII,
Section 11(e) specifically provides the following strict limitation:
Nothing in this Subsection shall entitle any candidate or other Union member to access to any other part of the premises owned, leased, operated or used by an employer or to access to a parking lot for purposes or under circumstances other than as set forth here.
The actions of Messrs. Broaddus and Lopez to gain access to employer premises through such misrepresentation constitute serious Rules violations.
This protest, however, is being considered in a post-election context. Therefore, the Election Officer must consider whether the violation “may have affected the outcome of the election,” under Article XIV, Section 3(b) of the Rules. A violation of the Rules alone is not grounds for setting aside an election unless there is a reasonable probability that the election outcome may have been affected by the violation. Wirtz v. Hotel Employees, Local 6, 391 U.S. 492, 507 (1968). A violation creates a presumption that the outcome was affected. Id. Once a violation is established, therefore, the Election Officer determines whether the effect of the violation was sufficient in scope to affect the outcome of the election. Id. Dole v. Mailhandlers, Local 317, 711 F. Supp. 577, 581 (M.D. Ala. 1989).
Donnie Von Moore, et al.
June 7, 1996
Page 1
The local union membership at the workplaces where Messrs. Broaddus and Lopez obtained access through misrepresentation is as follows: R.S. Owens, 117 members; General Products Co., 137 members; and Publix Office Supply, 94 members. Thus, no more than 348 local union members were affected by the violations at issue here. As reported above, the margins by which the Take Back slate prevailed were 1,058 and 1,074 in the delegate and alternate elections, respectively. Therefore, these violations could not have affected the outcome of this delegate election.
Having found that the Rules have been violated, the Election Officer “may take whatever remedial action is appropriate.” Article XIV, Section 4. This is true even when a violation did not affect the outcome of the delegate election. In fashioning the appropriate remedy, the Election Officer views the seriousness of the violation, as well as its potential for interfering with the election process. As previously stated, the Election Officer finds these violations especially egregious. The actions of Messrs. Broaddus and Lopez were repeated intentional misrepresentations. While the local union delegate election is over, the International officer election will be held later this year. Moreover, it is important for the members to be appraised of the seriousness of these violations. Therefore, the Election Officer orders the following:
(1) Within two (2) days of receipt of this decision, Messrs. Broaddus and Lopez shall sign the enclosed “Notice to Members of Local Union 743.” Within one (1) day of executing the attached notice, they shall deliver it to the principal officer of Local Union 743 who shall immediately cause the signed copies of such notices to be posted on the bulletin boards at R.S. Owens, General Products Co. and Publix Office Supply and at the Local Union 743 hall.
(2) Within two (2) days of receipt of this decision, Messrs. Broaddus and Lopez shall sign the enclosed “Letter to Employer” and within one (1) day of signing such letter shall send the signed letter to R.S. Owens, General Products Co. and Publix Office Supply, certified mail, return receipt requested.
(3) Messrs. Broaddus and Lopez are ordered to immediately cease and desist from representing themselves as employed by Local Union 743 for the purpose of gaining entry to employer premises.
(4) Within two (2) days of receipt of this decision, Messrs. Lopez and Broaddus shall return to the local union all Local Union 743 business cards, stationery and other materials identifying them as employed by the local union.
(5) Messrs. Lopez and Broaddus are also ordered to immediately cease and desist from using any and all Local Union 743 business cards, stationery and other union materials retained from their prior employment with the local union, to campaign in the election for International offices, for Mr. Hoffa or otherwise.
Donnie Von Moore, et al.
June 7, 1996
Page 1
(6) Messrs. Broaddus and Lopez are each ordered to execute and file an affidavit describing in detail their compliance with the provisions of this order within seven (7) days of receiving this decision.
2. The Use of “Local 743” in Campaign Literature in P-723-LU743-CHI
On April 9, 1996, members of Local Union 743 received a campaign mailing in support of the MTM slate. The message of the campaign flyers in the mailing unmistakably supported the MTM slate and opposed the Take Back slate. One of the flyers has a drawing of an envelope. Beside the envelope, the message reads, “Look for Your Ballot in the Mail.” On the envelope drawn on the flyer, “LOCAL 743” is printed in the return address area. The words “LOCAL” and “743” are separated by the IBT’s logo.
The protesters allege that because the drawing has Local Union 743 in the return address area, it improperly suggests that it is an official Local Union 743 document and that the MTM slate was endorsed by the local union. The MTM slate responds that the protested campaign materials were produced by the Ron Carey campaign and not the MTM slate.[2] Further, the MTM slate argues that use of the picture of a Local Union 743 envelope in conjunction with the legend, “Look for Your Ballot in the Mail,” does not misleadingly suggest an improper endorsement of the slate by the local union.
In Antoskiewicz, P-452-LU507-CLE (February 28, 1996), the Election Officer held that the use of a local union’s name and return address “on what obviously is campaign material . . . does not violate the Rules.” The Election Officer has also ruled that “the use of the IBT emblem or logo . . . on materials that are obviously campaign materials is permissible.” Antoskiewicz, supra; Garcia, P-436-LU435-RMT (February 22, 1996).
The Ron Carey campaign’s use of the words “Local 743” as the return address on a mock ballot envelope on what is clearly campaign literature does not violate the Rules.
3. The Allegations of a Retaliatory Shop Steward’s Election in P-725-LU743-CHI
Ms. Dixon alleges that while she was a candidate on the Take Back slate and the incumbent shop steward at Stiffel Lamp Co., Mr. Fluker, the business agent assigned to Stiffel, conducted a new steward’s election among the employees and miscounted and mishandled the ballots. Ms. Dixon contends these actions were taken to retaliate against her candidacy in violation of Article VIII, Section 11(f) of the Rules.
Mr. Fluker responds that the steward’s election was held in accordance with the local union bylaws and that the ballots were properly processed.
Donnie Von Moore, et al.
June 7, 1996
Page 1
Ms. Dixon had been shop steward at Stiffel. The Election Officer’s investigation discloses that an election for steward was held, as required by local union bylaws, after a majority of the members in the bargaining unit at Stiffel signed a petition seeking such an election. Mr. Fluker posted a notice for an election for a new steward and informed
Ms. Dixon of the petition and her right to be on the ballot. A subsequent notice was posted with the date and time of the election. The election was conducted on April 9. The ballots were counted by two union members under Mr. Fluker’s supervision, and rechecked by him. Both steward candidates had observers present. The protester was defeated in a vote of 59 to 12.
Article VIII, Section 11(f) of the Rules prohibits any retaliation against anyone by the Union or its agents for exercising any right guaranteed by the Rules. However, the Election Officer will not find retaliation if she concludes that the union officer or entity would have taken the same action, even in the absence of the protester’s protected conduct. Gilmartin,
P-032-LU245-PNJ (January 5, 1996), aff’d 95 - Elec. App. - 75 (KC) (February 6, 1996). See Leal, P-051- IBT-CSF (October 3, 1995), aff’d 95 - Elec. App. - 30 (KC) (October 30, 1995)
A recall election for a new shop steward was permissible union activity. Ms. Dixon has not alleged or presented evidence to show that the petition was invalid or that there was any other irregularity in the process. Ms. Dixon, who was present during the count, alleges that some of the ballots were incorrectly credited to her opponent. Although she was also present when Mr. Fluker rechecked the ballots, she does not claim that there was anything wrong with that part of the process. The Election Officer credits Mr. Fluker’s denial that any miscount occurred, especially because the investigation has not found any other witness or evidence to suggest any irregularity in any part of the process. Contrary to Ms. Dixon’s allegation that the results of this election were kept from her, those results were enumerated on a tally sheet at the ballot count while she was still present. She was shown, and asked to sign, the tally sheet, which she refused to do. Mr. Fluker and Sharon Robinson, the successful candidate for steward, signed the sheet, which was then posted.[3]
The Election Officer finds that the steward’s election would have been held and its votes counted as they were here, even if Ms. Dixon and Mr. Fluker were not on opposing slates.
Accordingly, the protest in P-670-LU743-CHI is GRANTED and the protests in P-723-LU743-CHI and P-725-LU743-CHI are DENIED.
Donnie Von Moore, et al.
June 7, 1996
Page 1
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 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
Dennis M. Sarsany, Adjunct Regional Coordinator
June 10, 1996
VIA UPS OVERNIGHT
Donnie Von Moore, et al.
June 10, 1996
Page 1
Donnie Von Moore
824 E. 52nd Street
Chicago, IL 60615
Robert D. Walston
7133 S. 86th Avenue
Justice, IL 60458
Philip John
100 Park Avenue #601
Calumet City, IL 60409
Earnestine Dixon
2831 W. Congress
Chicago, IL 60612
Richard Lopez
606 N. 6th Avenue
Maywood, IL 60153
Jerry Broaddus
7500 Elmhurst Road, Lot 46
Des Plaines, IL 60018
James P. Hoffa
2593 Hounds Chase
Troy, MI 48098
Sam Matyas
5820 Kouba Drive
Berkeley, IL 60163
Movement Towards Members Slate
c/o Clinton Fluker
1440 W. 123rd Street
Chicago, IL 60643
Eddie Kornegay, Trustee
Teamsters Local Union 743
300 S. Ashland Avenue
Chicago, IL 60607
Nathaniel Charny
Cohen, Weiss & Simon
330 W. 42nd Street
New York, NY 10036
Donnie Von Moore, et al.
June 10, 1996
Page 1
Re: Election Office Case Nos. P-670-LU743-CHI
P-723-LU743-CHI
P-725-LU743-CHI
CORRECTION
Donnie Von Moore, et al.
June 10, 1996
Page 1
Gentlepersons:
On June 7, 1996, the Election Officer issued a decision in the above-captioned cases. As part of her order, Messrs. Broaddus and Lopez were directed to send letters to certain employers including Publix Office Supply. The letter to Publix Office Supply attached to the decision was incorrect. A corrected letter is attached.
Sincerely,
Benetta Mansfield
Chief, Protest Division
cc: Kenneth Conboy, Election Appeals Master
Dennis M. Sarsany, Regional Coordinator
Donnie Von Moore, et al.
June 10, 1996
Page 1
LETTER TO PUBLIX OFFICE SUPPLY
FROM LOCAL UNION 743 MEMBER RICHARD LOPEZ
BY ORDER OF BARBARA ZACK QUINDEL
IBT ELECTION OFFICER
TO: PUBLIX OFFICE SUPPLY
FROM: LOCAL UNION 743 MEMBER RICHARD LOPEZ
The Election Officer has ruled that I improperly gained access during the Local Union 743 delegate election to the employer premises listed above. I gained entry to the employer workplace with an invalid business card. Through use of this business card, I represented myself as a business agent of the local union, which I was not. After gaining access to these premises, I campaigned among the employees for candidates in the delegate election.
The Election Officer has ordered as part of her remedy that I personally inform you, so that you can inform your staff, that I was not employed by Local Union 743 and, therefore, was not authorized by the local union to enter the premises for the purpose of conducting union business.
Sincerely,
Richard Lopez
Approved by B
NOTICE TO MEMBERS OF LOCAL UNION 743
FROM JERRY BROADDUS AND RICHARD LOPEZ
The Election Officer has found that we violated the Election Rules when we misrepresented ourselves as Local Union 743 business representatives to gain access to the premises of R.S. Owens, General Products Co. and Publix Office Supply in order to campaign for the Take Back Local 743 slate in the delegate election.
The Election Rules do not permit non-employee members to campaign inside employer premises.
We will immediately cease and desist from engaging in such conduct in violation of the Election Rules.
We will not use business cards of Local Union 743 to gain entry onto employer premises for the purpose of campaigning for International officer candidates in the IBT election.
__________________________ _____________________________
JERRY BROADDUS RICHARD LOPEZ
This is an official notice which must remain posted for 30 consecutive days and must not be defaced or altered in any manner or be covered with any other material.
Approved by Barbara Zack Quindel, IBT Election Officer.
LETTER TO R.S. OWENS FROM
LOCAL UNION 743 MEMBER JERRY BROADDUS
BY ORDER OF BARBARA ZACK QUINDEL, IBT ELECTION OFFICER
TO: R.S. OWENS
FROM: LOCAL UNION 743 MEMBER JERRY BROADDUS
The Election Officer has ruled that I improperly gained access during the Local Union 743 delegate election to the employer premises listed above. I gained entry to the employer workplace with a invalid business card. Through use of this business card, I represented myself as a business agent of the local union, which I was not. After gaining access to these premises, I campaigned among the employees for candidates in the delegate election.
The Election Officer has ordered as part of her remedy that I personally inform you, so that you can inform your staff, that I was not employed by Local Union 743 and, therefore, was not authorized by the local union to enter the premises for the purpose of conducting union business.
Sincerely,
Jerry Broaddus
Approved by Barbara Zack Quindel, IBT Election Officer.
LETTER TO GENERAL PRODUCTS CO. FROM
LOCAL UNION 743 MEMBER JERRY BROADDUS
BY ORDER OF BARBARA ZACK QUINDEL, IBT ELECTION OFFICER
TO: GENERAL PRODUCTS CO.
FROM: LOCAL UNION 743 MEMBER JERRY BROADDUS
The Election Officer has ruled that I improperly gained access during the Local Union 743 delegate election to the employer premises listed above. I gained entry to the employer workplace with a invalid business card. Through use of this business card, I represented myself as a business agent of the local union, which I was not. After gaining access to these premises, I campaigned among the employees for candidates in the delegate election.
The Election Officer has ordered as part of her remedy that I personally inform you, so that you can inform your staff, that I was not employed by Local Union 743 and, therefore, was not authorized by the local union to enter the premises for the purpose of conducting union business.
Sincerely,
Jerry Broaddus
Approved by Barbara Zack Quindel, IBT Election Officer.
LETTER TO PUBLIX OFFICE SUPPLY FROM
LOCAL UNION 743 MEMBER JERRY BROADDUS
BY ORDER OF BARBARA ZACK QUINDEL, IBT ELECTION OFFICER
TO: GENERAL PRODUCTS CO.
FROM: LOCAL UNION 743 MEMBER RICHARD LOPEZ
The Election Officer has ruled that I improperly gained access during the Local Union 743 delegate election to the employer premises listed above. I gained entry to the employer workplace with a invalid business card. Through use of this business card, I represented myself as a business agent of the local union, which I was not. After gaining access to these premises, I campaigned among the employees for candidates in the delegate election.
The Election Officer has ordered as part of her remedy that I personally inform you, so that you can inform your staff, that I was not employed by Local Union 743 and, therefore, was not authorized by the local union to enter the premises for the purpose of conducting union business.
Sincerely,
Richard Lopez
Approved by Barbara Zack Quindel, IBT Election Officer.
[1]The new telephone number penned in is that of the Take Back slate headquarters.
[2]The Election Officer has found that the Carey campaign, not the MTM slate, produced and mailed these materials in support of the MTM slate’s campaign. Lopez, P-716-LU743-CHI (April 19, 1996).
[3]Ms. Dixon alleges that another supporter of the Take Back slate, Crystal Walker, had been removed as shop steward at Spiegel, Inc., for similar retaliatory reasons. However, that election for shop steward occurred more than a year ago, before that employer moved its operations out of Chicago later in 1995, and long before the campaign for the delegate election, which is the basis for the Election Officer’s review here.