Protest Decisions

              November 1, 1996

VIA UPS OVERNIGHT

James P. Hoffa

November 1, 1996

Page 1

James P. Hoffa

2593 Hounds Chase

Troy, MI  48098

Richard M. Esquivel, Secretary-Treasurer

Teamsters Local Union 104

1450 S. 27th Avenue

Phoenix, AZ  85009

Ron Carey Campaign

c/o Nathaniel Charny

Cohen, Weiss & Simon

330 W. 42nd Street

New York, NY  10036

Teamsters for a Democratic Union

7437 Michigan Avenue

Detroit, MI  48210

Bradley T. Raymond

Finkel, Whitefield, Selik, Raymond,

  Ferrara & Feldman, P.C.

32300 Northwestern Highway, Suite 200

Farmington Hills, MI  48334

Paul Alan Levy

Public Citizen Litigation Group

1600 20th Street, N.W.

Washington, DC  20009

James P. Hoffa

November 1, 1996

Page 1

Re:  Election Office Case No. P-1049-LU104-RMT

Gentlemen:

James P. Hoffa, a member of Local Union 614 and a 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”) alleging that Local Union 104 violated the Rules by displaying campaign materials supporting Ron Carey, IBT general president and a candidate for reelection, in its office.  The protester further alleges that Local Union 104 purchased copies of the Convoy Dispatch, a publication produced by the Teamsters for a Democratic Union (“TDU”), with union funds and placed these copies in the local union hall for distribution to members.  Mr. Hoffa claims that this publication contains “extensive campaigning on behalf of Ronald Carey.”

James P. Hoffa

November 1, 1996

Page 1

Local Union 104 responds that no union funds were used to purchase the Convoy Dispatch and that the newspaper has been available at the local union hall at no charge for the past year-and-a-half on a regular basis.  Richard Esquivel, secretary-treasurer of Local

Union 104, states that the Hoffa campaign has not asked to distribute campaign material in the union hall since July 1996. 

Regional Coordinator Jonathan Wilderman investigated this protest.

1.              Allegations Regarding Campaign Materials

Mr. Hoffa asserts that the principal officers of Local Union 104 “have continuously displayed Carey campaign stickers, buttons and other paraphernalia in their offices and in other places at the Local Union hall.”  

The investigation revealed that the following items were present in various offices at the union hall on October 22, 1996:  (1) a TDU sticker on a desk top covered with glass in an office previously used by former Business Agent Rod Brasch;[1] (2) a sticker on top of the glass on this desk which reads, “Ron Carey Slate ‘96:  Putting Members First”; (3) a round metal emblem on the desk of Business Agent Cliff Davis, which reads, “I support Hogan, Hoffa, Wsol/Restore The Pride/ I.B.T. ‘96”; and (4) a Styrofoam party hat with Mr. Carey’s name printed on the band hanging on a wall in Mr. Esquivel’s office.  Mr. Esquivel removed all these items from the premises on October 23, 1996.

Article VIII, Section 11(c) of the Rules states as follows:

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 interpreted this provision to indicate that the display of campaign-related material in private offices on union premises is an impermissible use of union facilities in order to campaign, and a violation of the Rules.  Yeakel, P-256-LU773-PNJ, P-257-LU773-PNJ (January 4, 1996), aff’d, 96 - Elec. App. - 57 (January 23, 1996) (posting of campaign-related photographs on wall in office of the local union secretary-treasurer violated the Rules); Yeakel, P-762-LU773-PNJ (June 5, 1996) (barring display of campaign hats along with union hats in union office); McNamara, P-876-LU107-PNJ (September 18, 1996) (storing campaign hats and T-shirts in the local union hall violated the Rules). 

James P. Hoffa

November 1, 1996

Page 1

Accordingly, the Election Officer finds in the instant protest that the display of campaign material in several offices within Local Union 104’s union hall violates the Rules.[2]

2.              Allegations Concerning the Convoy Dispatch

Mr. Hoffa claims that copies of the Convoy Dispatch, which included campaign material for Mr. Carey, were purchased by Local Union 104 with union funds and made available to members at the local union hall for free.  He asserts that the principal officers of Local Union 104 “have prohibited the display of Hoffa campaign materials at the Union hall.”

Mr. Esquivel states that the Convoy Dispatch has been available to members in the union hall for the past year-and-a-half at no charge.  Copies of the newspaper are kept on a table in the entrance to the offices, along with non-union materials, such as brochures on various political issues.  Mr. Esquivel insists that local union funds were not used to purchase the issues of the Convoy Dispatch and thinks that a local union member places them in the office.  The investigation did not disclose that union funds were used to purchase the publication.

Mr. Esquivel states that Local Union 104 has no policy regarding the display of campaign literature in the union hall.  He was unaware that the Convoy Dispatch could be viewed as campaign material.  According to Mr. Esquivel, he has received no requests to display Hoffa materials at the local union hall.  

A witness supplied by the protester, Local Union 104 member Luis Ortiz, told the Regional Coordinator that on October 11, 1996, he asked Business Agent Rod Brasch to display Hoffa materials at the local union hall.  According to Mr. Ortiz, Mr. Brasch advised him to address his request to Mr. Esquivel, but he did not do so.  Mr. Ortiz states that he made no other request to distribute Hoffa materials, nor is he aware of such request by any other member.

Article VIII, Section 5(a)(4) of the Rules states:

A Local Union shall not discriminate or permit discrimination in favor or against any candidate in conjunction with its meetings or otherwise.  This requirement shall apply not only to formal presentations by or on behalf of candidates but also to informal campaign activities, such as . . . literature distribution tables, etc.

James P. Hoffa

November 1, 1996

Page 1

In Hoffa, P-313-LU728-SEC et seq. (February 26, 1996), the Election Officer found the Convoy Dispatch to be campaign literature.  In that case, the protester on several occasions expressed his dismay to the officers of his local union over the fact that the Convoy Dispatch was displayed in the local union hall.  The Election Officer pointed out that although the officers were “well aware of Mr. Parker’s concern . . . [n]onethless, they failed to offer or permit literature for Mr. Hoffa.”  Hence, the Election Officer found that the local union violated the Rules “by discriminating in favor of Mr. Carey and his slate.”

Mr. Esquivel removed copies of the Convoy Dispatch from the union hall on

October 23, 1996.  After discussions with the Regional Coordinator, the parties to this protest agreed to set up a literature distribution table at Local Union 104.  On October 31, 1996,

Mr. Esquivel wrote to the three slates with International officer candidates stating as follows:

The purpose of this letter is to advise you that your slate will be permitted to set out campaign materials for distribution at Local #104 in an area designated solely for this purpose.  This area will be made available beginning Monday, November 4, 1996 and will be made available through December 10, 1996.  Please be advised that the distribution of campaign materials will be prohibited prior to November 4, 1996 by all parties.

Accordingly, the protest is GRANTED as to the display of campaign materials and RESOLVED as to the distribution of campaign literature.

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.

The Election Officer notes that the campaign materials displayed in the offices at Local Union 104 have since been removed from the relevant offices and, when displayed, supported both Messrs. Hoffa and Carey.  She also notes that the displays found to be a violation in this case were small and only in particular offices.  Taking these facts into consideration, she hereby orders that Local Union 104 cease and desist from the use of union facilities or resources to display campaign material.

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, 1966).

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:

James P. Hoffa

November 1, 1996

Page 1

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

Jonathan Wilderman, Regional Coordinator