November 27, 1996
VIA UPS OVERNIGHT
Mark Fallace
1840 N.E. 142nd Street #4T
North Miami, FL 33181
Tony Cannestro, President
Teamsters Local Union 769
8350 N.W. 7th Avenue
Miami, FL 33150
Re: Election Office Case No. P-1232-LU769-SEC
Gentlemen:
Mark Fallace, a member of Local Union 769, 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”). In his protest, Mr. Fallace alleges the following: (1) that Chief Shop Steward Kedrick Johnson has torn down pro-Carey literature from the local union bulletin boards at Wholesome Bakery (“Wholesome” or “the bakery”); (2) that Hoffa literature “appears” at Wholesome whenever Business Agent Tyrone Brewster visits; (3) that Local Union 769 President Tony Cannestro campaigned for Mr. Hoffa using union-supplied vehicles and on union time; and (4) that Hoffa bumper stickers have been affixed to employer trucks.
Mr. Johnson denies tearing down pro-Carey campaign literature. Mr. Brewster admits that he handed out pro-Hoffa campaign literature while he was in the break room at the
bakery, but states that his campaigning was incidental to his duties as a business agent.
Mr. Cannestro admits that he, Secretary-Treasurer Bob Belans and Business Agents
Josh Zivalich, LaMar Mathis and Tyrone Brewster campaigned at the bakery on Monday, November 11, 1996, Veterans’ Day, but states that it was a holiday for staff members of Local Union 769. Therefore, they did not campaign on union time.
Regional Coordinator J. Griffin Morgan investigated this protest.
Mark Fallace
November 27, 1996
Page 1
1. Allegation Concerning Tearing Down Carey Campaign Literature
The investigation revealed that approximately two weeks prior to the filing of this protest, the protester and Mr. Johnson had words in the break room at the bakery. Mr. Fallace complained that the pro-Carey campaign literature that he put up was consistently being torn down.
Mr. Johnson denies actually tearing down campaign literature.
Article XIV, Section 2(b) of the Rules requires protesters to file “within two (2) working days of the day when the protestor becomes aware or reasonably should have become aware of the action protested.” The short time limits are important to ensuring that alleged violations of the Rules are quickly brought to the attention of the Election Officer in order to afford the greatest opportunity for applying an effective remedy if a violation is found.
As noted above, Mr. Fallace waited approximately two weeks after his conversation with Mr. Johnson before filing his protest. The Election Officer finds that this portion of the protest is untimely.
2. Allegation of Improper Campaigning By Business Agent Tyrone Brewster
The investigation revealed that Mr. Brewster placed campaign literature in the break room at Wholesome on November 13, 1996. Mr. Brewster was at the bakery meeting with management on union business. When the meeting was over, he walked through the plant, speaking with members. He stated that when he was in the break room he was asked for some campaign literature. Mr. Brewster states that he went to his car and returned with Hoffa campaign literature.
Article VIII, Section 11(a) of the Rules states, in relevant part, that “[n]o candidate or member may campaign during his/her working hours. Campaigning incidental to work is not, however, violative of this section.” Mr. Brewster was at the work site conducting official union business. The Election Officer has found that campaigning by a union officer before or after conducting union business is “incidental.” See Fluker, P-672-LU743-SCE (April 10, 1996) (distribution of campaign buttons prior to union meeting “incidental”); Viscomi, P-683-
LU138-NYC (April 12, 1996) (conversation about election and distribution of leaflets following legitimate union business “incidental”).
The Election Officer finds that Mr. Brewster did not violate the Rules when he gave union members Hoffa campaign literature after finishing his business with the employer. This conduct was incidental to legitimate union business.
3. Allegation Concerning Improper Campaigning on Union Time
Mr. Fallace alleges that Mr. Cannestro and four business agents campaigned while on union time on November 11, 1996.
Mark Fallace
November 27, 1996
Page 1
Mr. Cannestro admits that he and Messrs. Belans, Zivalich, Mathis and Brewster campaigned for Mr. Hoffa on November 11, 1996. However, Mr. Cannestro points out that November 11, 1996 was Veterans’s Day and a local union staff holiday. Mr. Cannestro provided a copy of the notice from the International union that it would be closed that day and a copy of the notice that he sent out to Local Union 769 members informing them that the local union would also be closed.
The Election Officer finds that Messrs. Cannestro, Belans, Zivalich, Mathis and Brewster were on personal time when they campaigned for Mr. Hoffa on November 11, 1996 and, therefore, did not violate the Rules.
4. Allegation Concerning Campaign Bumper Stickers on Employer Property
Mr. Fallace also alleges that there have been “Hoffa bumper stickers on the company trucks and one was on the shipping office wall until I questioned them about whether they were taking sides.”
The investigation revealed that some time before the filing of his protest, Mr. Fallace saw a campaign bumper sticker on an employer truck. Mr. Fallace told the Regional Coordinator that he informed management, that the sticker was removed, and that he has not seen any campaign stickers on employer property since that time. The Election Officer finds no evidence of any ongoing violations.
Based upon the foregoing reasons, the protest is DENIED.
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
Mark Fallace
November 27, 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
J. Griffin Morgan, Regional Coordinator