Protest Decisions

              August 26, 1996

VIA UPS OVERNIGHT

James P. Hoffa

August 26, 1996

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

John Sullivan, Associate General Counsel

International Brotherhood of Teamsters

25 Louisiana Avenue, N.W.

Washington, DC  20001

Bradley T. Raymond

Finkel, Whitefield, Selik, Raymond,

  Ferrara & Feldman

32300 Northwestern Highway, Suite 200

Farmington Hills, MI  48334

James P. Hoffa

August 26, 1996

Page 1

Re:  Election Office Case No. P-865-IBT-MGN

Gentlemen:

James P. Hoffa, candidate for general president, filed a pre-election protest pursuant to Article XIV, Section 2(b) of the Rules for the 1995-1996 IBT International Union Delegate and Officer Election (“Rules”) against the IBT and the Carey campaign.  The protester alleges that the Carey campaign used union resources to publish a campaign pamphlet entitled “Jimmy Hoffa Junior:  A Study Of His Connections To Corrupt Elements In The Labor Movement.”  The protester contends that the IBT obtained certain documents in union-financed litigation or investigations and provided these to the Carey campaign which used the documents to prepare the campaign pamphlet.  The protester further contends that the IBT undertook discovery in litigation involving the International union and the former area conferences in order to obtain materials for use by the Carey campaign.

James P. Hoffa

August 26, 1996

Page 1

The IBT and the Carey campaign deny that the union made any improper contributions to the campaign.  The charged parties state that Bill Patterson, director of the IBT’s Office of Corporate Affairs, provided Chris Bohner, a consultant to the campaign who wrote the pamphlet, with documents which Mr. Patterson kept in personal files and which are available to the public from other sources.  The union further states that Mr. Patterson provided the materials to Mr. Bohner on Mr. Patterson’s personal time when he was either at home or in his office and that Mr. Patterson routinely uses his office for personal and non-IBT business. 

Regional Coordinator William A. Wertheimer investigated the protest.

In March 1995, the Carey campaign hired Chris Bohner as a consultant to research the “opposition.”  Mr. Bohner had previously done some work for the IBT’s Office of Corporate Affairs and was hired, in part, based on the recommendation of Mr. Patterson.  While conducting his research for the Carey campaign, Mr. Bohner obtained assistance from

Mr. Patterson with fact-checking and research methodology.  During the summer of 1996, Mr. Bohner produced a report on Mr. Hoffa which was published and distributed by the Carey campaign under the title, “Jimmy Hoffa Junior:  A Study Of His Connections To Corrupt Elements In The Labor Movement.”

According to witnesses, Mr. Bohner sought Mr. Patterson’s help with his research on alleged connections between Mr. Hoffa and organized crime because Mr. Patterson maintains an interest in relationships between unions and organized crime or extremist groups.  Beginning in approximately March 1996, Mr. Patterson spoke with Mr. Bohner about his work for the Carey campaign several times a week, face-to-face and on the telephone.  Frequently, Mr. Bohner talked with Mr. Patterson by telephone when Mr. Patterson was at home, but occasionally these telephone conversations took place while Mr. Patterson was in his office at IBT headquarters.

Both Mr. Bohner and Mr. Patterson admit that Mr. Bohner also stopped by

Mr. Patterson’s office to discuss his research for the campaign pamphlet on approximately 10 occasions.  Mr. Bohner and Mr. Patterson state that about half of these meetings were 15 to 20 minutes in length and the remainder ranged from approximately 30 minutes to an hour. 

Mr. Patterson states that most of the meetings in his office occurred after 5:00 p.m. and that when he met earlier in the day with Mr. Bohner they met during a time period Mr. Patterson set aside to be on break from his IBT duties.  Messrs. Patterson and Bohner state that

Mr. Patterson instructed Mr. Bohner to call first so that Mr. Patterson could specify a time for their meeting.  Mr. Bohner recalled that once or twice, Mr. Patterson specifically told him to come over at lunch time.

Mr. Patterson states that he is in his office approximately 70 or 80 hours each week.  Mr. Patterson does a substantial amount of speaking and consulting on corporate campaigns and related topics.  In connection with these activities, he often performs non-IBT work in his office.  Mr. Patterson spends some of his time at his IBT office performing work for the Council of Institutional Investing, of which he is co-chair.  He takes breaks from his IBT work at his own discretion.

Mr. Patterson loaned Mr. Bohner materials from his personal files concerning corruption and the Teamsters union.  These materials included newspaper and magazine clippings and an April 21, 1995 letter, with attachments, written on behalf of the IBT to Judge Edelstein in connection with pending litigation concerning the former area conferences. 

James P. Hoffa

August 26, 1996

Page 1

Mr. Bohner recalled obtaining the April 21, 1995 letter from Mr. Patterson at his home.  He obtained other documents from Mr. Patterson either at Mr. Patterson’s home or in his office.

The April 21, 1995 letter was a communication from the IBT’s attorneys to the Court in connection with two consolidated cases, IBT v. Eastern Conference of Teamsters, No. 94 Civ. 1950 (DNE) and Central Conference of Teamsters v. IBT, 94 Civ. 2247 (DNE) (S.D.N.Y.) (“the area conferences litigation”).  The principal dispute in that litigation was whether the IBT acted lawfully in dissolving the IBT’s area conferences.  However, the parties were also litigating a dispute over the status of an organization called the Real Teamsters Caucus (“RTC”).  In the April 21 letter, which involved a discovery dispute, the IBT alleged that Richard Leebove and George Geller, now aides to Mr. Hoffa, assisted officers of the former IBT area conferences in forming the RTC.  The IBT asked the Court to rule that it was entitled to pre-trial discovery concerning the IBT-related activities of Messrs. Leebove and Geller on those issues.  Attached to the letter were 56 exhibits, many of which involved prior activities of Messrs. Geller and Leebove within the labor movement and the IBT.  Counsel for the protester describes the April 21, 1995 letter as:

. . . summariz[ing] . . . a standard litany of distortions, half truths, mischaracterizations and untruths from the Carey administration concerning them . . . . Much of the material referenced in the letter consists of turgid news clippings from obscure periodicals, excerpts from a book, unattributed flyers and leaflets and other materials which either mention Geller and Leebove or are attributed to them through speculation and surmise.

In response to the April 21, 1995 letter, the District Court ruled that the discovery proposed by the IBT sought information which may be relevant to the area conferences litigation and that, therefore, the IBT was entitled to the discovery.  See IBT v. Eastern Conference of  Teamsters, 162 F.R.D. 25, 28 (S.D.N.Y., 1995).

The IBT Communications Department distributed copies of the April 21, 1995 letter with attachments to interested members of the press.  Some time after demand for the document had decreased, Mr. Patterson saw a copy of the document in the Communications Department office and obtained an extra copy for his personal files on corruption and the IBT.

This protest raises four issues:  (1) whether Mr. Patterson used union time to campaign; (2) whether Mr. Patterson provided union resources to Mr. Bohner, a representative of the Carey campaign, by giving him a document that Mr. Patterson obtained at work from the IBT for his personal use and maintained in his personal files; (3) whether the IBT used its resources to obtain information in pre-trial discovery for the purpose of assisting the Carey campaign; and (4) whether Mr. Patterson used union resources by discussing research for a campaign pamphlet on the phone and in person in his office.

James P. Hoffa

August 26, 1996

Page 1

1.              Use of Union Time

Article VIII, Section 11(b) of the Rules protects the right of a union staff member to “participate in campaign activities, including the right . . . to openly support or oppose any candidate, to aid or campaign for any candidate, and to make personal contributions.”  The section further provides:

However, 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.  Campaigning incidental to regular Union business is not, however, violative of this section.  Further, campaigning during paid vacation, paid lunch hours or breaks, or similar paid time off is also not violative of this section.

  Article XII, Sections 1(b)(1) and 1(b)(3) of the Rules prohibit the union from making a campaign contribution.  “Campaign contribution” is broadly defined in the Rules to mean “any direct or indirect contribution of money or other thing of value where the purpose, object or foreseeable effect of that contribution is to influence, positively or negatively, the election of a candidate for . . . International officer position.”  Article XII, Section 1(b)(6) further states:

Nothing herein shall prohibit the donation of services by an individual to a candidate rendered on the individual’s personal free time without compensation in any form by an employer or labor organization and without accompanying contributions of supplies or of services of others who are compensated by an employer or labor organization for such services.

The IBT contends that the documents at issue were provided to Mr. Bohner on

Mr. Patterson’s personal time.  In Caraballo, P-653-LU272-NYC (April 3, 1996), the Election Officer held that a business agent who worked irregular hours and who contended that his mid-morning delivery of campaign literature to a member occurred during his break, did this campaigning on personal time, as permitted by the Rules.  The Election Officer cited evidence that the union employee’s work day averaged approximately nine or 10 hours a day, his work week extended to weekends and he was permitted to select when he takes a break and the length of his break.  See also Hoffa, P-812-IBT-NYC (August 16, 1996) (appeal pending).

Here, Mr. Patterson routinely works hours far longer than the regular business day, takes breaks at his discretion and has regularly used his office for non-IBT work.  Although some of his meetings in his office with Mr. Bohner lasted longer than a break for many employees, the length of his work day and flexibility of his schedule lead to the conclusion that these meetings still occurred on legitimate break time.  Thus, based on the evidence presented, the Election Officer finds that Mr. Patterson used personal time to meet with

James P. Hoffa

August 26, 1996

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Mr. Bohner at his home and in his office to provide him with documents from his personal files.  Accordingly, the conduct described above does not violate the Rules.

2.              The April 21, 1995 Letter as a Use of Union Resources

In addition to the prohibitions cited above, Article VIII, Section 11(c) of the Rules also bars the union from providing union resources to a candidate:

Union funds, facilities, equipment, stationery, personnel, etc. may not be used to assist in campaigning, unless the Union is reimbursed at fair market value for such assistance, and unless all candidates are provided equal access to such assistance and are notified in advance, in writing, of the availability of such assistance. 

The IBT contends that the April 21, 1995 letter with attachments was not a union resource, but was Mr. Patterson’s personal property when he provided a copy to Mr. Bohner approximately one year later.  The only evidence on the issue shows that Mr. Patterson obtained the document from the IBT for his personal files on corruption and the Teamsters union and had maintained the document in his personal files, from which he provided the document to Mr. Bohner.  The Election Officer has recognized that union representatives may use for campaign purposes information that they personally maintain which was acquired during the course of their duties for purposes apart from campaigning.  See Chentnik, P-223-LU235-CHI (December 18, 1995), aff’d, 95 - Elec. App. - 52 (January 8, 1996).  Here, the material given to Mr. Bohner was not confidential or proprietary information, but a public document filed with the Court and distributed to the press by the IBT Communications Department.  Since Mr. Patterson distributed information belonging to him personally, he did not thereby violate the Rules.

3.              Use of Union Resources to Obtain Campaign-Related Information in Litigation

The protester further asserts that the IBT actually engaged in the discovery against Messrs. Geller and Leebove to develop material that would be useful to the Carey campaign.  He argues that there was no legitimate reason for seeking discovery against them, since they were non-party witnesses who were not involved in the dissolution of the area conferences.

The evidence fails to demonstrate any improper purpose in the IBT’s efforts to obtain discovery from Messrs. Geller and Leebove in the area conference litigation.  In its April 21, 1995 submission to the Court, the IBT cited documents and deposition testimony which tended to show that the two men were involved in efforts by IBT affiliates to avert revocation of the area conference charters and that they were involved with the RTC.

James P. Hoffa

August 26, 1996

Page 1

The District Court believed that discovery of Messrs. Geller and Leebove was permissible, in that it might be relevant to such issues as whether the conferences sought the litigation in good faith, what the true purpose was of the RTC, and the accuracy of the claim for damages.  The Court’s order supporting the IBT discovery request demonstrates that the filing had a proper purpose at the time.  That conclusion is not altered by Mr. Patterson’s subsequent transmittal of his personal copy of the April 21, 1995 letter to Mr. Bohner, since that transaction was proper for the reasons discussed above.  The protester has not provided any evidence to suggest that the April 21, 1995 letter was prepared or used as a campaign contribution to the Carey campaign, and therefore the IBT did not violate the Rules in the regard.[1]

3.              Mr. Patterson’s Use of His Union Office for Consultations with Mr. Bohner

The Election Officer has prohibited the use of union resources in campaigning even when such use is isolated or slight.  In Olson, P-172-LU70-CSF (November 1, 1995), the Election Officer found that the use of a union telephone for three telephone calls of short duration to assist in campaigning during work time, “even when such activity is not consequential in terms of time,” violates the provisions in the Rules barring use of union facilities and equipment to assist in campaigning.  Accord Hoffa, P-812, supra.  The Election Officer found in Yeakel, P-256-LU773-PNJ (January 4, 1996), aff’d, 96 - Elec. App. - 57 (KC) (January 23, 1996), that a union officer who had been a vocal supporter of Mr. Hoffa unlawfully used union resources by posting a picture of her rival candidate for delegate standing with Mr. Hoffa on the wall of her union office.  See also, Yeakel, P-762-LU773-PNJ (June 5, 1996) (barring display of campaign hats along with union hats in union office); Miller, P-504-LU147-MOI (April 23, 1996) (violation where local union made its office available to a campaign as the location to pick up a raffle prize).

Mr. Bohner acknowledges that Mr. Patterson used his office and telephone to provide him with advice on the preparation of a campaign pamphlet.  Mr. Patterson’s use of his office and telephone in this manner, even if these meetings occurred on Mr. Patterson’s free time, was, nevertheless, a use of union resources for campaign activity, in violation of the Rules.

The IBT argues that the Election Officer should find a pertinent analogy in case law developed under the National Labor Relations Act (NLRA), as amended, under which the National Labor Relations Board holds that employers cannot ban employees from soliciting during non-work time, even if the solicitation takes place in a work area.  However, an analogy to the NLRA is not appropriate here, as the Rules set forth express restrictions on the use of employer or union resources in this election.  The policy concerns here are different than those normally addressed in labor-management relations under the NLRA.

James P. Hoffa

August 26, 1996

Page 1

The IBT also argues that campaign activity is permitted by Article VIII, Section 11 of the Rules, which allows campaigning incidental to regular union business.  See Part 1, supra.  The exception for “incidental” campaigning on local union time recognizes that as officers and employees perform their duties and interact with members, election discourse may be part of the normal personal discourse that takes place.  See George, P-490-LU391-SEC (April 4, 1996).  Thus, the “incidental” exception does not protect campaigning by local union officers and employees outside of such normal interaction.  Outside of those bounds, local union officers and employees are exercising a personal right that the union cannot subsidize.

In determining those bounds, the Election Officer has applied the “incidental” exception to campaign-related conversations that local union officers and employees have with members while transacting legitimate union business, Raymond, P-434-LU572-CLA et seq. (March 14, 1996); Newhouse, P-253-LU435-RMT (January 4, 1996), as well as to brief, campaign-related parts of conversations that were otherwise about legitimate union business.  Jackson, P-842-LU612-SEC (August 14, 1991); Draeger, P-486-LU823-MOI (February 20, 1991).  Brief campaigning before or after legitimate union business may also fall within the bounds of normal personal interaction.  Dillon, P-467-LU284-CLE (March 4, 1991). 

The Election Officer has previously applied the “incidental” exception to questions involving the use of union or work time, not facilities.  Here, the campaign activity engaged in by Messrs. Bohner and Patterson was not incidental to regular union business in which they were jointly engaged.  It was not “part” of their ordinary discourse.  Mr. Patterson specially scheduled meetings, separate from any work that he was doing, to discuss research for the Carey campaign with Mr. Bohner.  There was no legitimate union business being conducted by the two men to which the discussions about the Carey campaign were incidental.  Thus, the exception in Article VIII, Section 2 of the Rules does not apply here.

The protester also alleges that the campaign pamphlet produced by Mr. Bohner contains false material.  However, as the Election Officer has frequently stated, the Rules “do not impose upon candidates the duty to be truthful in their remarks about opposing candidates.”  See, e.g., Landwehr, P-201-LU795-MOI (November 15, 1996).  The content of the pamphlet does not violate the Rules.

Accordingly, the protest alleging the use of union resources in campaigning, is GRANTED and, in all other respects, DENIED.

When the Election Officer determines that the Rules have been violated, she “may take whatever remedial action is appropriate.”  Article XIV, Section 4.  In fashioning the appropriate remedy, the Election Officer views the nature and seriousness of the violation, as well as its potential for interfering with the election process.

Here, the Election Officer orders that the following steps be taken:

James P. Hoffa

August 26, 1996

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1.  Mr. Patterson is ordered to cease and desist from giving any further assistance to the campaign of a candidate for International office, which uses IBT resources or facilities. The Election Officer further orders the Carey campaign and Mr. Carey to cease and desist from accepting such a campaign contribution from the IBT.

2.  Within five (5) days of the receipt of this decision, the IBT is ordered to distribute the attached Notice to all of its employees at its Washington, D.C. headquarters.

3.  The Election Officer directs the IBT to provide a calculation of the cost of leasing Mr. Patterson’s office for one day by using an amount per square foot per month as used in a calculation of operating expenses or assets.  The evidence demonstrates that Mr. Patterson used a total of approximately one day of time in his office to assist Mr. Bohner.  Within five (5) days of the receipt of this decision, the IBT is directed to bill the Carey campaign for the rental of Mr. Patterson’s office for one day, explaining its calculation of the rental.  The Carey campaign is directed to pay this bill within three (3) working days.

4.  The Election Officer directs the Carey campaign, within five (5) days of the receipt of this decision, to reimburse the IBT $20 for Mr. Patterson’s use of his telephone for campaign purposes.

5.  Within two (2) days of distributing the notice and billing the Carey campaign, as set forth above, the IBT is ordered to submit to the Election Officer an affidavit describing its compliance with the Election Officer’s orders, attaching the cost calculations ordered and a copy of the check from the Carey campaign.

6.  Within two (2) days of making its rental payment to the IBT, the Carey campaign is directed to submit to the Election Officer an affidavit describing its compliance with the Election Officer’s orders requiring it to make payments for rental of Mr. Pattersons’s office and use of his telephone, attaching the cost calculations ordered and a copy of the check from the Carey campaign.

An order of the Election Officer, unless otherwise stayed, takes immediate effect against a party found to be in violation of the Rules.  In Re: Lopez, 96 - Elec. App. - 73 (KC) (February 13, 1996).

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

James P. Hoffa

August 26, 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

William A. Wertheimer, Regional Coordinator

              NOTICE TO IBT EMPLOYEES

The Election Officer has found that an IBT department director violated the Election Rules by using his office and telephone to consult with a representative of the campaign of Ron Carey for election to general president.

Employees may not use their office or office equipment to assist a candidate.  This prohibition is in effect even when an employee is on break or personal time.

All violations of the Rules pertaining to the contribution to a candidate or campaign of union resources shall be promptly investigated and appropriately remedied.  Any member believing that a violation of the Rules has been committed may file a protest with the Election Officer at 400 N. Capitol Street, N.W., Suite 855, Washington, D.C. 20001; telephone (202) 624-3500; facsimile (202) 624-3525.

_________________________

Barbara Zack Quindel

Election Officer

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.