Protest Decisions

              November 11, 1996

VIA UPS OVERNIGHT

James P. Hoffa

November 11, 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

Schnuck Markets, Inc.

11420 Blackland Road

St. Louis, MO  63146

Teamsters for a Democratic Union

7437 Michigan Avenue

Detroit, MI  48210

Diana Kilmury, Vice President

International Brotherhood of Teamsters

2612 E. 47th Avenue

Vancouver, BC  V5S 1C1

Paul Alan Levy

Public Citizen Litigation Group

1600 20th Street, N.W.

Washington, DC  20009

Ron Carey Campaign

c/o Nathaniel K. Charny

Cohen, Weiss & Simon

330 W. 42nd Street

New York, NY  10036

Bradley T. Raymond

Finkel, Whitefield, Selik, Raymond,

  Ferrara & Feldman, P.C.

32300 Northwestern Highway, Suite 200

Farmington Hills, MI  48334

John Sullivan, Associate General Counsel

International Brotherhood of Teamsters

25 Louisiana Avenue, N.W.

Washington, DC  20001

James P. Hoffa

November 11, 1996

Page 1

Re: Election Office Case No. P-1113-IBT-MOI

Gentlepersons:

James P. Hoffa

November 11, 1996

Page 1

James P. Hoffa, 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”) against the IBT, the Carey campaign and International Vice President and candidate for reelection Diana Kilmury.  Mr. Hoffa alleges that on October 11, 1996, agents of the Carey campaign, including Ms. Kilmury, appeared at Schnuck Markets, Inc. (“Schnucks”) and represented themselves as agents of the IBT when handing out campaign materials, which they described as “something from the International.”  Mr. Hoffa also contends that the charged parties defaced Schnucks’ property by affixing Carey campaign stickers to various items of employer property.

The Carey campaign admits that Ms. Kilmury and others were present at the Schnucks facility on October 11, 1996.  The campaign argues that Ms. Kilmury correctly identified herself as an International vice president running for reelection on the Ron Carey slate and that none of their party identified the materials they were distributing as something from the International.  They deny that anyone in their party affixed stickers to employer property. 

The protest was investigated by Regional Coordinator Michael D. Gordon.

Schnucks maintains a warehouse in Bridgeton, Missouri where it employs about 200 employees represented by Local Union 688.  On October 11, 1996, from about 5:30 to 6:00 a.m., an estimated 15 people campaigned for the Ron Carey No Corruption-No Dues Increase Slate in the company’s warehouse parking lot.  Among those campaigning were Ms. Kilmury, Local Union 688 members Don Eby and John Youngermann, International Vice President and candidate for reelection Doug Mims, Joe Rockstroh, a member of Local Union 355, and

Bob Blanchet, a member of Local Union 287.

1.              Allegations Concerning Representations by the Campaigners

Accounts from witnesses, all employed by Schnucks and members of Local Union 688, differ on how campaigners identified the source of the literature.  Bill Eldridge states that one of the campaigners handed him a leaflet and stated, “Here’s something from the International” and “Don’t forget to vote for Carey.”  Mike Schlueter states that a woman gave him a business card, identified herself as being from the International and handed him pro-Carey campaign paraphernalia.  A copy of that business card identifying Ms. Kilmury was provided to the Election Officer.  Gene Bales states that a woman identified herself as an International vice president and attempted to hand him pro-Carey literature.  Terry Dennis states that a woman identified herself as vice president of either “the Local” or the “International” and handed him a business card and flyer.  Paul Frank said that a person wearing an IBT jacket attempted to hand him literature. 

Article VIII, Section 11(b) of the Rules broadly protects the right of union officers 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 . . .”  It is not a violation of the Rules for a candidate to refer to his/her title, whether it be local union officer or International officer, while campaigning.  

James P. Hoffa

November 11, 1996

Page 1

While the Rules state that endorsements of candidates by IBT or local unions are prohibited union contributions, Article VIII, Section 11(b) specifically states, “[a]n endorsement of a candidate may be made by a Union officer or employee, but solely in his/her individual capacity.”  As the Election Officer explained in the Advisory on Campaign Contributions and Disclosure at page 4:

Individual members of a local union’s executive board, a retiree’s executive board or a local union, in their capacity as members of the IBT, may endorse candidates for International office, a particular candidate or slate of candidates.  For example, in Moriarty, P-1071-LU677-ENG (November 15, 1991), a letter sent to local union members which stated that “the members of Teamsters Local No. 24 Executive Board have unanimously endorsed the R.V. Durham Unity Team.”  The letter was signed by the executive board and noted their titles.  The Election Officer found no violation because this was an endorsement by individual members of the board . . .

  The business card provided by Mr. Schlueter does not indicate or imply a union endorsement.  The card states “Ron Carey” and “Putting Members First” and contains

Ms. Kilmury’s name, identifying her as an “International Vice President At-Large.”  If

Ms. Kilmury is free to endorse using her title as IBT International vice president, it follows

that she is free to make reference to her title while campaigning, without violating the Rules.

The evidence taken as a whole does not support the protester’s contention that the campaigners identified the literature they were distributing as being “from the International.”

2.              Allegations Regarding Defacement of Employer Property

The protester submitted seven photographs to the Election Officer.  Two photographs are of the same trash can and show a Carey sticker affixed to a trash can and an “exit” sign.  Two other photographs are of a “no parking” sign and show a Carey sticker affixed to the sign.  The fifth and sixth photographs each show Carey stickers affixed to a trash can.  The seventh photograph shows a Carey sticker affixed to a dead bird.  Schnucks states that it immediately removed the campaign material from its property.

As the Election Officer has stated in several recent matters, while the Rules protect the right of members to support candidates of their own choosing, that protection does not extend

to affixing campaign stickers and other material to property that belongs to an employer.[1]  As

the Election Officer stated in Phelan, P-711-LU550-NYC (April 23, 1996), aff’d, 96 - Elec.

James P. Hoffa

November 11, 1996

Page 1

App. - 184 (KC) (May 6, 1996), “[t]he Rules protect campaigning as a personal right of IBT members and require that it be exercised that way.”  Applying this principle, the Election Officer has stated that “[n]othing in . . . the Rules authorizes members to affix campaign material to employer-owned trucks . . .” Hoffa, P-992-LU707-NYC (October 7, 1996).   

Affixing campaign material to employer property has other consequences as well.  Putting such material on an employer’s property has the effect, under the Rules, of causing the employer to make an improper campaign contribution, in violation of Article XII, Section 1(b)(1), even if the affixing of the sticker was against employer policy.[2]  Putting stickers on employer property can also create a false impression of employer endorsement, which would be another form of making an improper campaign contribution.  See Feeley, P-874-LU817-MGN (September 17, 1996); Maney, P-956-IATSE-NYC et seq. (October 2, 1996), aff’d, 96 - Elec. App. - 251 (KC) (October 15, 1996); Knox, P-1006-SFD-MGN (October 14, 1996).

Furthermore, under Article XII, Section 1(b)(9) of the Rules, International officer candidates “are strictly liable to insure that each contribution received is permitted under the Rules.”  Therefore, affixing a campaign sticker or sign to employer property results in a violation of the Rules on the part of the candidate the member intends to support.

While no person interviewed by the Election Officer saw any of the campaigners attach bumper stickers to Schnucks’ property, there is no question that campaign stickers for Mr. Carey were placed on Schnucks’ property, in violation of the Rules.  Witnesses interviewed during the investigation state that no campaign material was on Schnucks’ property before the campaigners’ October 11 visit.  Thus, the circumstantial evidence suggests that the stickers were attached by the charged parties.  Other evidence, however, such as the placement of a pro-Carey sticker on the dead bird, suggests that persons who oppose Mr. Carey’s candidacy may have placed the stickers on the property.  The Election Officer does not find the evidence sufficient to directly attribute the affixing of campaign stickers to the Carey campaigners.

As to Schnucks, no evidence was presented by the protester connecting any Schnucks agent to the bumper stickers.  Schnucks responded quickly and removed the bumper stickers after being alerted.  A letter from Schnucks Labor Relations Specialist Edward S. Keady expressed great concern with the incident and other access to its property by campaigners and

has stated it does not condone or permit such conduct.  “Immediate removal ends any potential impact of the improper campaigning.”  Hoffman, P-1050-LU817-NYC (October 28, 1996); Sweeney, P-1029-RCS-NYC et seq. (October 28, 1996).

For the foregoing reasons, the protest is DENIED.

James P. Hoffa

November 11, 1996

Page 1

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.

Although the Election Officer has not found any violation by the local union, members need to be aware that vandalism to employer property will not be tolerated.  Therefore, within two (2) days of the date of receipt of this decision, Local Union 688 shall post the attached “Notice to Members of Local Union 688” on all union bulletin boards at the Schnucks facility in Bridgeton.   Within two (2) days of the posting, Local Union 688 shall file an affidavit with the Election Officer demonstrating compliance with this decision.

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

Michael D. Gordon, Regional Coordinator

NOTICE TO LOCAL UNION 688 MEMBERS

RE:  IMPROPER USE OF EMPLOYER PROPERTY

The Election Officer found that trash receptacles at this facility had campaign stickers improperly placed on them. 

The Election Rules protect campaigning as a personal right of members.

Employer resources or property do not belong to members and cannot be used by them to campaign.

Putting International officer campaign material on employer property violates the Election Rules. 

______________________                                          ______________________________

Date                                                                                                  Barbara Zack Quindel

Election Officer

This is an official notice which must remain posted through December 10, 1996 and must not be defaced or altered in any manner or be covered with any other material.