November 25, 1996
VIA UPS OVERNIGHT
Mickeala Abril
November 25, 1996
Page 1
Mickeala Abril
565 Baker Court
Atwater, CA 95301
Bill Deal, President
Teamsters Local Union 748
1222 I Street
Modesto, CA 95354
Jimmy D. Hammack, President
Teamsters Joint Council 38
1209 K Street
Modesto, CA 95354
Mickeala Abril
November 25, 1996
Page 1
Re: Election Office Case No. P-1264-LU748-CSF
Gentlepersons:
Mickeala Abril, a member of Local Union 748, 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 on Thursday, November 14, 1996, the officers of Local Union 748 violated the Rules by allowing Local Union 748 member Elva Resendez to distribute Carey campaign materials during a general membership meeting of Local Union 748 in Merced, California.
Ms. Resendez admits that she passed out Carey campaign literature during the meeting, but alleges that she did so after she observed Hoffa literature being distributed. Ms. Resendez further alleges that the Hoffa supporters distributed more Hoffa literature than they were entitled to under the order of the Election Officer that authorized its distribution, and alleges that they distributed it in a manner that was inconsistent with the order. See Hoffa, P-984-LU748-CSF et seq. (October 17, 1996).
Local Union 748 President Bill Deal and Local Union 748 Recording Secretary Solonia Jones respond that they did not see Ms. Resendez distribute campaign material.
Mickeala Abril
November 25, 1996
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In a related matter, the Election Officer received a letter from Local Union 748 member Janet Favaloro which alleges that Local Union 748 violated the Hoffa order at the November 14 meeting in Merced, and also at a November 19 meeting in Modesto.
Ms. Favaloro alleges that Local Union 748 permitted “hundreds of brightly colored, two-sided” pieces of Hoffa campaign literature to be distributed, instead of 50 copies of a “one-sided piece of campaign literature printed in black ink on 8½11-inch paper” as ordered by the Election Officer.
This protest was investigated by Regional Coordinator Matthew D. Ross.
In the course of investigating this protest, the following witnesses have been interviewed: Local Union 748 President Bill Deal; Local Union 748 Recording Secretary Solonia Jones; Local Union 748 Business Agent Al Oliver; Local Union 748 clerical employee Kathy Garcia; Local Union 748 bookkeeper Cherrie Wendt; Joint Council 38 employee
Dee Gotteli; and Local Union 748 members Mickeala Abril, Elva Resendez, Carmen Luna and Angel Cortess.
The investigation of this protest revealed the following:
On October 17, 1996, the Election Officer issued a decision in a series of consolidated protests that involved Local Union 748. Hoffa, supra. The protests involved campaign violations committed by the organizers during an IBT voter registration rally in Modesto, California. In ordering a remedy, the Election Officer stated:
The Election Officer understands that in fashioning a remedy, she cannot replicate the Modesto rally. In order to reach the target population of that rally with a similar benefit for Mr. Hoffa, the Election Officer will make use of meetings held by the local unions within Joint Council 38.
Among the remedies ordered by the Election Officer in Hoffa was the requirement that a “one-sided piece of campaign literature printed in black ink on 8½11-inch paper,” provided by Mr. Hoffa, be duplicated by the IBT, and that 50 photocopies of it be sent by the IBT to each local union within Joint Council 38. The Election Officer further ordered:
At the next local union membership meeting for each of the local unions within Joint Council 38, the local union officer presiding at the meeting shall read aloud the attached “Notice to Members of Local Unions within Joint Council 38.” The local union officer shall designate a place within the local union meeting room where the campaign literature supporting Mr. Hoffa is made available to be picked up after the meeting.
Local Union 748, which is headquartered in Modesto, California, also conducts membership meetings in Merced, California. On November 14, a general membership meeting was held in Merced. At the beginning of the meeting, in compliance with the
Mickeala Abril
November 25, 1996
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Election Officer’s order in Hoffa, Mr. Deal read the Notice from the Election Officer, which stated:
The Election Officer has determined that at an IBT-sponsored voter registration rally held on September 21, 1996 in Modesto, California, the Election Rules were violated when portions of this event were used to campaign for Mr. Carey.
The Election Rules prohibit campaigning at a union-financed event. When the campaigning mentioned above occurred, the IBT violated the Election Rules. To remedy this violation, the Election Officer has ordered each local union within Joint Council 38 to read this notice to its members and to make available for distribution campaign literature supporting James P. Hoffa, candidate for general president, to each local union, copied at IBT expense. Copies of such literature are available for pick-up after the meeting.
After reading the Notice, Mr. Deal stated that Mr. Oliver and Ms. Garcia were at the back of the room and that pursuant to the Order of the Election Officer they would make Hoffa literature available at the end of the meeting. Prior to the meeting, Mr. Deal,
Mr. Oliver and Ms. Garcia agreed that Ms. Garcia and Mr. Oliver would stand in the “ante-room” which adjoined the meeting room and distribute the Hoffa materials at the end of the meeting.
After the “Notice of the Election Officer” was read, the recording secretary began to read the minutes but was interrupted by a motion from the floor to suspend the regular order of business and commence a turkey “give-away” and lottery which Local Union 748 tradition-ally conducts at its November membership meetings. The motion was carried, and the give-away and lottery occupied the remainder of the meeting.
Mr. Oliver, Ms. Garcia and Ms. Abril allege that when the turkey lottery was nearly over they moved to their designated position in the ante-room. They further allege that while the meeting was still in progress they observed Ms. Resendez “walking up and down the rows of chairs, distributing something.” Ms. Abril alleges that at the end of the meeting she obtained a copy of the materials distributed by Ms. Resendez from Local Union 748 member Ester Gomez, that the materials consisted of a brightly colored Carey bumper sticker and a Spanish-language Carey flyer, and that she has submitted the materials to the Election Officer.
In response, Ms. Resendez admits that she distributed Carey campaign materials near the end of the meeting. She alleges, however, that she began the distribution after she observed Mr. Oliver and Ms. Garcia start to hand out Hoffa literature in the back of the room, which she thought was improper. Ms. Resendez further alleges that Mr. Oliver, Ms. Garcia and other Hoffa supporters distributed far more literature than authorized by the order of the Election Officer.
Mickeala Abril
November 25, 1996
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Local Union 748 officials do not dispute that Ms. Resendez campaigned at the November 14 meeting. However, they deny that they saw her campaigning. They allege that the meeting was “more chaotic than usual” due to the annual turkey give-away and lottery and the fact that some members left their seats as they collected their lottery certificates from the front of the room. Ms. Jones alleges that as recording secretary, her attention was focused on the lottery activities taking place in the front of the room.
The investigation of Ms. Resendez’s allegation that excessive Hoffa literature was distributed at the Merced meeting, and the investigation of Ms. Favaloro’s allegation that Local Union 748 failed to comply with the Election Officer’s order at both the Merced and the Modesto meetings, revealed the following.
Upon request by Local Union 748 clerical employee Kathy Garcia, Joint Council 38 clerical employee Dee Gotteli faxed Ms. Garcia a copy of a Hoffa flyer to distribute at the Merced and Modesto meetings. Because 75 percent of the membership of Local Union 748 is Spanish-speaking, Ms. Garcia had a Spanish translation printed on the reverse side of the flyer and then made copies of the two-sided Hoffa flyer. Ms. Garcia admits that she used Local Union 748’s photocopier and that she used “scrap” colored paper belonging to Local
Union 748. Ms. Garcia admits that Hoffa flyers were distributed to nearly all of the
87 attendees at the Merced meeting and admits that some additional flyers were given to members to distribute at workplaces. Ms. Garcia also admits that the Hoffa flyers were distributed to nearly all of the 130 to 140 members who attended the Modesto meeting, and that some additional copies were given to members to be distributed at workplaces.
Based on the foregoing facts, the Election Officer finds that Local Union 748 failed to comply with the terms of the Hoffa order when it photocopied the Hoffa flyer rather than using copies supplied by the IBT, and also when it distributed more copies than were ordered at its Merced and Modesto meetings. The fact that Local Union 748 failed to comply with the Hoffa order does not, however, open the door to campaigning at those meetings which would otherwise be prohibited under the Rules.
The Rules are designed to ensure that if campaigning is permitted at local union membership meetings, the local union will provide all oppositional candidates notice and equal access.[1] The local union meetings in question, however, presented the unusual circumstance of limited remedial campaigning pursuant to an order of the Election Officer. In this case, it was the express intention of the Election Officer to provide a singular campaign opportunity to a party who had been injured by a past violation of the Rules. In the limited circumstance of remedial campaigning pursuant to an order of the Election Officer no opportunity for oppositional campaigning is created under the Rules.
Ms. Resendez admits that she distributed Carey campaign materials at the
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November 25, 1996
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November 14 meeting. The Election Officer finds that by permitting Carey campaigning to occur at the November 18 meeting, the officers of Local Union 748 did not strictly adhere to the purpose of the limited remedial campaigning ordered by the Election Officer in Hoffa.
The officers of Local Union 748 state that they did not see the prohibited campaigning. The Election Officer finds that they are nevertheless responsible for its occurrence at the meeting. The fact that the officers of Local Union 748 conducted a disorderly meeting does not relieve them of their duty to comply with the Rules, including their duty to prevent prohibited campaigning at meetings.
Ms. Resendez argues that her campaigning was excused by the fact that the campaign opportunity afforded Mr. Hoffa by Local Union 748 at the November 18 meeting exceeded the one ordered by the Election Officer. While the Election Officer agrees that Hoffa supporters went beyond the order in their literature distribution, she finds that Ms. Resendez should have raised her objection at the meeting, not resorted to self-help by engaging in prohibited campaign activities. Had a timely objection been raised at the meeting, the non-compliant distribution of Hoffa materials might have been stopped.
While the Election Officer finds that Local Union 748 failed to comply with the Election Officer’s order in Hoffa, and also that it violated the Rules when it permitted
Ms. Resendez to conduct prohibited campaigning at the November 14 meeting, the Election Officer finds that the additional campaign advantage derived by Mr. Hoffa was in effect compensated for by the campaign advantage derived by Mr. Carey, and therefore no additional remedy is needed to redress those violations.
Regarding Ms. Garcia’s admission that she used Local Union 748’s photocopier and paper to reproduce the Hoffa flyers, the Election Officer finds that the Rules have been violated.
Article XII, Section 1(b)(3) of the Rules, which prohibits the discriminatory use of union resources in the promotion of any candidate, states, in pertinent part:
No Union funds or other things of value shall be used, directly or indirectly, to promote the candidacy of any individual. Union funds, facilities, equipment, stationery, personnel, etc., may not be used to assist in campaigns unless the Union is compensated at fair market value for such assistance , and unless all candidates are provided equal access . . .
The use of Local Union 748 resources and personnel to photocopy approximately 300 copies of the two-sided Hoffa flyer directly promoted the candidacy of Mr. Hoffa, and therefore constitutes a prohibited campaign contribution, under the Rules.
For the foregoing reasons, this protest is GRANTED as to the issue of a prohibited campaign contribution by Local Union 748 and RESOLVED as to all other issues.
Mickeala Abril
November 25, 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.
The Election Officer orders the following:
1. Local Union 748 shall comply with all orders of the Election Officer.
2. Local Union 748 shall cease and desist from permitting prohibited campaign activities to occur at membership meetings.
3. Within three (3) days of the date of this decision, the Hoffa campaign shall remit to Local Union 748 $50 in compensation for the costs of photocopying the Hoffa flyer.
4. Within two (2) days of complying with the above, the Hoffa campaign shall file an affidavit with the Election Officer detailing its compliance with this remedy.
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, D.C. 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
Matthew D. Ross, Regional Coordinator
[1]See Article VIII, Section 5(a)(3) of the Rules.