Protest Decisions

              September 18, 1996

VIA UPS OVERNIGHT

Gerard McNamara

September 18, 1996

Page 1

Gerard McNamara

589 Cherry Avenue

Franklinville, NJ  08322

Thomas Ryan

1221 Woodbrook Lane

Warminster, PA  18974

James P. Hoffa

2593 Hounds Chase

Troy, MI  48098

Nick Pico, President

Teamsters Local Union107

107 Spring Garden Street

Philadelphia, PA  19123

James F. Wallington

Baptiste & Wilder, P.C.

1150 Connecticut Avenue, N.W., Suite 500

Washington, DC  20036

Gerard McNamara

September 18, 1996

Page 1

Re:  Election Office Case No. P-876-LU107-PNJ

Gentlemen:

Gerard McNamara, a member of Local Union 115, 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”) alleging that Thomas Ryan, former president of Local Union 107, and the Hoffa campaign committee improperly used union assets and resources to campaign.  In essence, the protest alleges that the Local Union 107 union hall was used as a place of storage for campaign hats, T-shirts and jackets supporting the Hoffa campaign.  In addition, the protest alleges that local union funds were used to purchase Hoffa campaign jackets.

Mr. Ryan and the local union have denied that there was any campaigning or intent to campaign, and that any materials located in the building were either there for brief storage or were out of sight and not being used for campaign purposes.  Mr. Ryan further denies that there was any improper campaigning or intent to campaign with respect to the purchase of the jackets.

Gerard McNamara

September 18, 1996

Page 1

This protest was investigated by Regional Coordinator Peter V. Marks, Sr.

The Election Officer’s investigation revealed the following.  Until August 12, 1996, Thomas Ryan was the president of Local Union 107.  Mr. Ryan was an announced candidate for International vice president supporting Mr. Hoffa until July 14, 1996, when he withdrew his candidacy.  On August 12, 1996, General President Ron Carey placed Local Union 107 into emergency trusteeship based on a report received by the IBT from the Independent Review Board (“IRB”).  The IBT appointed Mr. McNamara as the trustee and he immediately took control of the Local Union 107 hall in Philadelphia.[1]  As Mr. McNamara was inspecting the premises, he came upon a locked room for which he did not have a key.  Upon gaining entry into the room, he found that it was an office currently being used as a storage room.  In the room were at least two cases and 10 boxes of Hoffa hats.  In addition, there was a case of T-shirts saying “Hoffa/Ryan.”

In addition, the trustee reviewed the financial records of the local union and found an invoice from JD Custom Printing, Inc. (“JD Printing”) to Local Union 107 for three wool/leather quilt jackets, costing a total of $622.  The jackets contained an IBT logo surrounded by the words “Hoffa/Hogan.”[2]  Mr. McNamara also found a canceled Local

Union 107 check made out to JD Printing for the amount of $622 to pay that invoice.  An Election Office review of the local union’s cash disbursement journal, check register, canceled checks and several key vendor invoice files did not uncover any other union payments which could be identified as campaign expenditures.

During inspections of the Local Union 107 hall, Election Office investigators noted evidence of other Rules violations as well.  A letter from the Hoffa/McClain campaign was posted on the bulletin board, thanking Local Union 107 for their courtesy during the recent IBT International Convention (which was held in Philadelphia, Pennsylvania on July 15-19, 1996).[3]  A number of miniature tractor trailer trucks were also on display in various offices, autographed by Mr. Hoffa.  Approximately six autographed Hoffa trucks were on the floor underneath the desk in Mr. Ryan’s office.  In addition, a picture of Mr. Hoffa was on display in various offices.

Gerard McNamara

September 18, 1996

Page 1

Mr. Ryan observes that several of the allegations were not contained in the initial protest, but does not specifically argue that they should be ignored by the Election Officer.  It is well settled that when the Election Officer uncovers a potential violation of the Rules in the course of a protest investigation, she will further investigate and adjudicate any violation which comes to light.  See, e.g., Hoffa, P-812-IBT-NYC (August 16, 1996).  Thus, all of the violations discussed herein are properly before the Election Officer. 

Mr. Ryan similarly raises the question of timeliness of the allegation concerning delivery of the Hoffa miniature trucks.  However, timeliness is not an issue where the Election Officer uncovers potential violations herself in the course of a protest investigation.  In any event, there is no evidence that the protester herein, or anybody else, had knowledge of the delivery of the trucks.  The Election Office investigator first learned of the delivery of the 25 cartons of trucks during an onsite visit on August 29, 1996.  Accordingly, the question of timeliness does not affect this investigation.

Further investigation of the trucks revealed that in May 1996, the Hoffa ‘96 campaign purchased 600 model trucks from the Winross Company.  Winross manufactures miniature trucks to specification for clients who use them for advertising and other commercial purposes.  The trucks in question are miniature cargo trailers made to a 1:64 scale.  The trailers contain the logo “Hoffa 1996” on each side and underneath his name, the Hoffa campaign slogan, “Restore Teamster Power.”  The models cost $24.75 per unit, for a total cost of $14,850 invoiced to the Hoffa campaign.  The order form contained the shipping address as Local Union 107, Attention: Jackie.  The Hoffa campaign paid Winross by check on June 18, 1996. 

On July 1, 1996, the driver for the New Penn Motor Express Company (“New Penn”) delivered a pallet of 25 boxes from Winross to the Local Union 107 union hall in Philadelphia.  The delivery was taken by Jackie Hansen, an employee of Local Union 107 who works in the reception area and normally accepts all deliveries made to the union hall.  Ms. Hansen states that many deliveries are made to her attention and that it is not unusual for labels to say “Attention:  Jackie.”  Ms. Hansen remembers receiving the shipment in early July, although her memory was that it totaled approximately 100 cartons.[4]  Ms. Hansen did not know what the shipment was and asked the driver.  He replied that they are the Hoffa trucks and just leave them where they are because they will be moved soon.  Ms. Hansen had the boxes placed in her office area just behind the reception area.  She left work at her usual time that day, 2:00 p.m.  When she arrived at work the next day, all of the boxes were gone.

Gerard McNamara

September 18, 1996

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The Election Office investigator interviewed Mr. Ryan and also received two affidavits from him.  An affidavit was also received from Local Union 107 member Robert Dunbar, and position statements were received from counsel for Mr. Ryan.  Mr. Ryan stated that he had not put the shirts, hats and jackets into the storage room, but that it was done by Mr. Dunbar.  Mr. Ryan stated that he had purchased the hats and T-shirts with his personal funds for his intended campaign as International regional vice president.  Mr. Ryan stated that he gave permission for those materials to be placed there. 

With respect to the jackets, Mr. Ryan stated that he had purchased one from JD Printing with his own personal funds in February.  He claimed that upon seeing the jacket, many members asked if they could get one for themselves.  Mr. Ryan stated that he thereupon purchased six more jackets with his personal funds and that they were very quickly sold.  Based on that, he decided that the local union could get a supply of these jackets to sell to members with profits going to the local union.  He calculated the profit margin as $53 for the three jackets.  At the time of the trusteeship, only two were left.  However, to resolve the claim of an improper campaign contribution, Mr. Ryan reimbursed the local union on

August 26 for $622, plus the $53 profit, for a total of $675.

With respect to the miniature trucks in his office, Mr. Ryan claimed that there were nine trucks still in their boxes under his desk and not visible to anyone.  They had been purchased at the Convention by individual members and were given to Mr. Ryan in order to have Mr. Hoffa sign them.  Mr. Ryan claimed that there was also a Carey truck still in its box under his desk.

Mr. Ryan, in his affidavit, also referred to a letter addressed to George Bosak, former Teamster member who drove the candidates’ wives around Philadelphia during the Convention.  Mr. Ryan states that it was on his desk, waiting to be given to Mr. Bosak.

Mr. Ryan stated that he had a picture of Mr. Hoffa hanging in his office, but it did not have any campaign slogan on it, and was hanging with many other photographs of Teamster and government officials.  A Xeroxed copy of the picture was submitted to the Election Officer.

Mr. Dunbar stated that on August 12, he placed boxes of campaign hats and T-shirts in his pickup truck to take them to the campaign office used by Mr. Ryan in Philadelphia.  On his way, he stopped at the union hall to check on the progress of work being done by members of the building committee.  While there, he discovered that he needed to transport building supplies in his truck, so he took the cases of T-shirts and hats out and briefly placed them in a room at the union hall for storage.  On Tuesday, August 13, when he returned to pick up the campaign materials, he was refused entry to the building by the International trustee.  After the emergency trusteeship was enjoined on August 20, 1996, Mr. Dunbar stated that he returned to the union hall and removed the hats and T-shirts.

As to the shipment of miniature trucks, Mr. Ryan admitted that arrangements were made to receive approximately 24 boxes of souvenir Hoffa trucks for distribution during the IBT International Convention.  In early July, at lunchtime, Mr. Ryan stated that he personally met the driver from New Penn at the front door of the Local Union 107 office and helped the driver place the boxes inside the locked door of the reception area.  After 5:00 p.m. that day, he and a couple of campaign supporters moved the boxes elsewhere. 

Gerard McNamara

September 18, 1996

Page 1

Article VIII, Section 11(c) of the Rules bars a union from providing 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 Election Officer has prohibited the use of union resources in campaigning even when such use is isolated or slight.  Olson, P-172-LU70-CSF (November 1, 1995) (use of union telephone for three calls of short duration to assist in campaigning during work time); 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) (local union made its office available to a campaign as the location to pick up a raffle prize); Hoffa, P-865-IBT-MGN (August 26, 1996) (use of union telephone and use of office for brief meetings).

1.              Storage of Campaign Hats and T-shirts

The evidence shows that both Mr. Ryan and Local Union 107 violated the Rules by using the union hall as a storage area for campaign hats and T-shirts.  By using a room in the union hall as a storage facility for campaign materials, Local Union 107, at Mr. Ryan’s direction, was using union assets to support or attack a candidate for International office.  It is irrelevant that the materials were not publicly displayed in the local union, or that they did not have campaign identifications on the outside of the boxes.  This violation is not improper campaigning, but is a use of union resources to support a campaign.

Even if Mr. Dunbar’s innocent explanation of how the caps and T-shirts came to be stored at the local union is credited, it was an unacceptable use of union resources to store the materials there, however briefly.

2.              Accepting Delivery and Storage of Campaign Miniature Trucks

Similarly, the use of the Local Union 107 hall as a delivery point for the Hoffa campaign miniature trucks violates the Rules by using union resources for a campaign-related purpose.  Contrary to Mr. Ryan’s assertions, the evidence shows that this was a conscious and intended use of union resources by the Hoffa campaign.  The original order specifically

Gerard McNamara

September 18, 1996

Page 1

directed Winross to deliver 25 cartons to Local Union 107 to the attention of Jackie.[5]  The miniature trucks and their intended use was completely unrelated to any legitimate union business, and the union made an improper contribution by the use of the local union’s offices to accept shipment and store the trucks.

Mr. Hoffa’s campaign also violated the Rules by knowingly using the Local Union 107 hall as a shipping address for campaign materials.  The evidence demonstrates that the decision to ship to the Local Union 107 hall, as opposed to the Hoffa campaign office, was a decision by the Hoffa committee communicated to the vendor of the miniature trucks.  In so acting, the Hoffa campaign violated Article XII, Section (1)(b)(3) of the Rules.

Although Mr. Ryan states that the nine miniature trucks under his desk were only there until Mr. Hoffa could sign them, this also is an improper use of union resources.

3.              Union Expenditures for Campaign Jackets

The expenditure of $622 by Local Union 107 to purchase Hoffa/Hogan jackets similarly violated the Rules.  The Hoffa/Hogan jackets were clearly campaign-related materials and any expenditure of union funds for such material is a clear and direct violation of Article VIII, Section 11(c) of the Rules.  Mr. Ryan’s explanation, that he was selling the jackets as a fund-raising measure for the local union, is no defense to the violation.  Further,  Mr. Ryan has been interviewed in connection with a previous protest concerning the use of union resources for campaigning purposes in Smith, P-798-LU107-SCE (June 28, 1995).  The check written by Local Union 107 for the jackets was issued on July 1, 1996.  At that time, Mr. Ryan clearly knew that the use of union resources to campaign or assist in campaigning violates the Rules.

Joseph Ferla, secretary-treasurer of Local Union 107, states that he never saw the invoice from JD Printing and would not have signed the check if he had known that it was for Hoffa/Hogan jackets.  Even assuming this to be true, the fact remains that the local union provided the funds for these campaign materials and must be held strictly liable for the infraction of the Rules.  Accordingly, both Mr. Ryan and Local Union 107 violated the Rules by the purchasing of the Hoffa/Hogan jackets.

Gerard McNamara

September 18, 1996

Page 1

4.              Posting Campaign-Related Materials             

Local Union 107 was also involved in improper campaigning by posting Hoffa campaign materials around the hall.  This includes pictures of Mr. Hoffa on display in various offices, including Mr. Ryan’s office, and the letter on the bulletin board from the Hoffa/McClain campaign thanking Local Union 107 for its courtesy during the IBT International Convention.  Mr. Ryan states that the picture of Mr. Hoffa was hanging “with many other photographs with other Teamster and government officials.”  However, Mr. Hoffa is not an IBT official, but an administrative assistant to the president of a local union and joint council located in Detroit, Michigan.  The photograph in Mr. Ryan’s office is signed “Jimmy Hoffa ‘96,” which would certainly indicate that it is referring to Mr. Hoffa’s campaign for general president in this year.  Mr. Hoffa’s campaign materials frequently contain the legend “Hoffa ‘96.”  The miniature trucks also said “Hoffa 1996.”  The Election Officer concludes that the purpose of posting Mr. Hoffa’s picture around the union hall, and the way in which a reasonable person would understand the purpose of the picture, was to be campaigning in support of Mr. Hoffa’s election as general president.  Thus, the pictures violate Article VIII, Section 11(c) of the Rules.  See Yeakel, P-256-LU773-PNJ (January 4, 1996), aff’d,

96 - Elec. App. - 57 (KC) (January 23, 1996).

Accordingly, the protest is GRANTED.

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:

1.  Mr. Ryan and Local Union 107 are ordered to cease and desist from giving any further assistance to any campaign or candidate for International office which uses the resources or facilities of Local Union 107 or any other IBT affiliate.  They are further ordered to cease and desist from using any union funds to purchase campaign items on behalf of any campaign or candidate for IBT International office.

2.  Within five (5) days of receipt of this decision, Local Union 107 shall post the attached notice on its bulletin boards and prominently in the reception area at its union hall.

3.  Local Union 107 shall remove from its walls or public view any pictures of

Mr. Hoffa or any other candidate for International office, and any other posters, letters or other communications from Mr. Hoffa or any other campaign.

Gerard McNamara

September 18, 1996

Page 1

4.  The evidence demonstrates that Local Union 107 allowed its office/reception area to be used as a storage area for Hoffa campaign materials for approximately a half-day, and further allowed its storage room on the second floor to be used for one day in the same manner.  The Election Officer directs Local Union 107 to provide a calculation of the cost of leasing the storage space on the second floor and the office/reception area for one day by using an amount per square foot per month as used in a calculation of operating expenses or assets.  Within five (5) days of receiving this decision, Local Union 107 shall bill the Hoffa campaign for the rental of those spaces for one day each, explaining its calculation of the rental.  The Hoffa campaign is directed to pay this bill within three (3) working days.

5.  Within two (2) days of distributing the notice and billing the Hoffa campaign as set forth above, Local Union 107 is ordered to submit to the Election Officer an affidavit describing its complete compliance with this order, attaching the cost calculations ordered and a copy of the check from the Hoffa campaign.

6.  Within two (2) days of making its rental payment to Local Union 107, the Hoffa campaign is directed to submit to the Election Officer an affidavit describing its compliance with the Election Officer’s order, attaching the cross calculations ordered and a copy of the check from the Hoffa 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

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

Peter V. Marks, Sr., Regional Coordinator

              NOTICE TO LOCAL 107 MEMBERS

The Election Officer has found that Local Union 107 and former Local Union 107 President Thomas Ryan violated the Election Rules by using the local union’s offices to store and display campaign materials on behalf of James P. Hoffa, candidate for general president.

Local unions and local union officers may not use their offices, equipment, resources or assets to assist or attack any candidate.  This applies to even minor uses.  In addition, union funds may not be used to purchase campaign material pertaining to the IBT International officer election.

All violations of the Rules pertaining to the contribution of union monies or resources to the campaign of a candidate 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.

________________________                                          ______________________________

Date                                                                                                  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.