March 19, 1996
VIA UPS OVERNIGHT
George Keiffer, et al.
March 19, 1996
Page 1
George Kieffer
2580 Miller Street
Lakewood, CO 80215
Robert H. Newhouse
6486 S. Saulsbury Street
Littleton, CO 80123
Alan Knoll
2070 Rosemary
Denver, CO 80207
Roman R. Garcia, Sec.-Tres.
Teamsters Local Union 435
2941 W. 19th Avenue
Denver, CO 80204
Roger Quimby, Trustee
Teamsters Local Union 435
2941 W. 19th Avenue
Denver, CO 80204
Anthony Marquez
Teamsters Local Union 435
2941 W. 19th Avenue
Denver, CO 80204
Sylvia Salazar
4741 Meade Street
Denver, CO 80211
Steve Vairma, President
Teamsters Local Union 435
2941 W. 19th Avenue
Denver, CO 80204
David Ring, Vice President
Teamsters Local Union 435
2941 W. 19th Avenue
Denver, CO 80204
Ron Cash
Teamsters Local Union 435
2941 W. 19th Avenue
Denver, CO 80204
Gary Stugart
Teamsters Local Union 435
2941 W. 19th Avenue
Denver, CO 80204
Curt Bowker
Teamsters for Justice Slate
3440 Youngfield Street #101
Wheatridge, CO 80033
Tim Mace
Teamsters for Justice Slate
3440 Youngfield Street #101
Wheatridge, CO 80033
George Keiffer, et al.
March 19, 1996
Page 1
Douglas Brees
Teamsters for Justice Slate
3440 Youngfield Street #101
Wheatridge, CO 80033
Alan Frisbee
Teamsters for Justice Slate
3440 Youngfield Street #101
Wheatridge, CO 80033
Teamsters United Slate
Teamsters Local Union 435
2941 W. 19th Avenue
Denver, CO 80204
Zeik A. Saidman
University of Colorado
at Denver
1445 Market Street, Suite 380
Denver, CO 80202
George Keiffer, et al.
March 19, 1996
Page 1
Re: Election Office Case Nos. P-360-LU435-RMT
P-361-LU435-RMT
P-392-LU435-RMT
P-393-LU435-RMT
P-395-LU435-RMT
P-442-LU435-RMT
P-444-LU435-RMT
P-445-LU435-RMT
P-446-LU435-RMT
P-471-LU435-RMT
P-472-LU435-RMT
P-482-LU435-RMT
P-500-LU435-RMT
P-514-LU435-RMT
P-568-LU435-RMT
Post-5-LU435-RMT
Gentlepersons:
Pre-election protests were filed pursuant to Article XIV, Section 2(b) of the Rules for the 1995-1996 IBT International Union Delegate and Officer Election ("Rules") by the following members of Local Union 435: George Kieffer (P-360-LU435-RMT, P-392-LU435-RMT, P-393-LU435-RMT, P-472-LU435-RMT and P-482-LU435-RMT); Robert Newhouse (P-361-LU435-RMT, P-471-LU435-RMT, P-500-LU435-RMT, P-514-LU435-RMT and
P-568-LU-435-RMT); Alan Knoll (P-395-LU435-RMT); Anthony Marquez (P-442-LU435-RMT); Roger Quimby (P-444-LU435-RMT); Roman Garcia (P-445-LU435-RMT); and
Sylvia Salazar (P-446-LU435-RMT). Local Union 435 held its delegate election on
February 28, 1996. Pursuant to her authority under Article XIV, Section 2(f)(2) of the Rules, the Election Officer deferred her consideration of these protests until after the election.
In addition, George Kieffer filed a post-election protest on March 5, 1996 (Post-5-LU435-RMT). The decision of the Election Officer herein applies to this protest as well as the pre-election protests listed above.
George Keiffer, et al.
March 19, 1996
Page 1
Except where noted, the protests addressed by this decision were investigated by Associate Regional Coordinator Zeik Saidman.
The counting of the ballots for the mail-ballot delegate election at Local Union 435 took place on February 28, 1996. There were 1,843 ballots cast, of which 1,708 were counted. Two slates competed for the five delegate positions and two alternate delegate positions. The results of the election for delegate were as follows:
Delegates
Rank Name Vote Slate or Independent
1 Sylvia Salazar 946 Teamsters United
2 Dave Ring 923 Teamsters United
3 Steve Vairma 878 Teamsters United
4 Roman R. Garcia 868 Teamsters United
5 Roger Quimby 844 Teamsters United
6 Robert H. Newhouse 744 Teamsters for Justice
7 Douglas Brees 701 Teamsters for Justice
8 George Kieffer 700 Teamsters for Justice
9 Tim Mace 699 Teamsters for Justice
10 Alan Knoll 680 Teamsters for Justice
11 Myrtle M. Smith 179 Independent
Alternate Delegates
1 Ron Cash 855 Teamsters United
2 Gary Stugart 836 Teamsters United
3 Alan Frisbee 715 Teamsters for Justice
4 Curt Bowker 675 Teamsters for Justice
5 David Determan 142 Independent
1. P-360-LU435-RMT and P-361-LU435-RMT
George Kieffer and Robert Newhouse, members of the Teamsters for Justice slate, filed protests against Roman Garcia, secretary-treasurer of Local Union 435 and a candidate on the opposing Teamsters United slate. The protesters allege that Mr. Garcia violated the Rules by putting his picture, along with several lines of flattering text, in the January 26, 1996 issue of the Colorado Labor Advocate (“CLA”), when the subject was not newsworthy. As these protests raise identical factual and legal issues, the Election Officer will address them together.
The CLA is a bi-monthly labor newspaper of the Colorado AFL-CIO. It is not financed by Local Union 435, but it is purchased by the local union for distribution to its members. Its title page states that the newspaper’s purpose “is to enlighten, defend and generally promote the interests of the AFL-CIO at the national, state and local levels.”
George Keiffer, et al.
March 19, 1996
Page 1
Mr. Garcia serves on the CLA’s board of directors, along with 18 other labor leaders. Local Union 435 has a subscription to the CLA.
In addition to his other duties, Mr. Garcia is the president and principal officer of the Colorado Food and Beverage Trades Council (“Council”). This body is made up of 12 local unions, including Teamsters Local Unions 17, 435, 537 and 961.
The January 26, 1996 edition of CLA contained a picture of Mr. Garcia and Council Secretary-Treasurer Avron Bergman on page five, under the heading “Garcia Heads Food Trades Council.” The text underneath the photograph states as follows:
Roman Garcia . . . principal officer of Teamsters Local 435, also currently heads the Colorado Food and Beverage Trades Council, a powerful coalition of 12 local unions whose membership totals over 75,000. He's seen here with Avron Bergman, the council’s secretary-treasurer at the group's last monthly meeting . . . Watch for a feature article on the council in an upcoming edition of the Advocate.
This picture and text occupy the bottom half of page five. The top half of the page features an article about the upcoming Fourth Biennial Labor Conference of the Colorado Labor Council for Latin American Affairs, stating that the “theme” of the conference will be “political organizing and the 1996 presidential elections.” The article’s headline is “Conference focus: ‘96 elections.”
The protesters assert that Mr. Garcia has been president of the Council for a long time and that the photograph and text therefore do not describe a newsworthy event. Mr. Garcia, according to the protesters, used his position on the CLA board of directors to get this material published for the sole purpose of promoting his candidacy as a delegate. The protesters also object to the placement of the photograph underneath the article described above, claiming that Local Union 435 members scanning page five would connect the words “‘96 elections” in the headline to Mr. Garcia, thus providing him with an unfair advantage in the delegate election.
As part of the Election Officer’s investigation, the Associate Regional Coordinator interviewed Mr. Bergman, the Council’s secretary-treasurer and principal officer of Local Union 26 of the Bakery, Confectionery and Tobacco Workers Union. Mr. Bergman stated that over the past three or four months, a number of the labor leaders whose local unions belong to the Council have been petitioning the CLA to publish an article about the Council, contending that their members would be more supportive of the organization if they knew more about it. According to Mr. Bergman, the Council leaders claimed that the Colorado Building and Construction Trades Council has received much greater coverage in the CLA and felt that their group should receive equal treatment. Mr. Bergman insisted that the interest of the Council in publicity had absolutely no connection to Mr. Garcia’s candidacy for delegate, and pointed out that Mr. Garcia was not involved in the effort to get an article published in the newspaper.
George Keiffer, et al.
March 19, 1996
Page 1
Mr. Bergman’s statements were corroborated by Mike Osborn, the editor of the CLA, who stated that Mr. Bergman had spoken with him several months ago about putting an article in the newspaper about the Council. In regard to the protesters’ charges against Mr. Garcia, Mr. Osborn stated that members of the CLA’s board of directors have no influence over what appears in the paper. The placement of the photograph and text on page five, Mr. Osborn contended, was totally circumstantial.
The Colorado AFL-CIO, which publishes CLA, is not the IBT nor an affiliate of the IBT. The contents of its publication, therefore, are not governed by the provisions of Article VIII, Section 8 of the Rules. Rather, the CLA is prohibited from making campaign contributions to a candidate for International office or delegate.[1]
As the Election Officer stated in Scott, P-877-IBT (October 14, 1991), “News articles which mention or discuss a candidate or a candidate’s political positions do not necessarily constitute campaign contributions if the article is otherwise newsworthy.”
In the instant cases, the Election Officer credits the statements of Mr. Bergman and Mr. Osborn regarding how and why the CLA included the protested photograph and text in its January 26, 1996 issue. Furthermore, the protesters have submitted no evidence in support of their contention that Mr. Garcia, by dint of his influence as a member of the CLA board of directors, arranged for these items to appear in this particular issue. Moreover, all of the references to Mr. Garcia in his role as head of the Council are newsworthy and of interest to the members.
The Election Officer finds that the publication does not constitute a campaign contribution to Mr. Garcia in violation of the Rules and the protests are DENIED.
2. P-392-LU435-RMT
The protester, Mr. Kieffer, charges that Associate Regional Coordinator Saidman did not respond to pre-election protests filed by himself and others within the time period prescribed by the Rules. Mr. Kieffer asserts that “[t]his failure is affecting the election of delegates in Local 435 by creating a disadvantage to the grieving parties.”
The investigation of this protest was supervised by Election Office Protest Chief Benetta Mansfield.
George Keiffer, et al.
March 19, 1996
Page 1
Article XIV, Section 2(f) of the Rules states that when a pre-election protest is filed, “[t]he Election Officer or her representative shall determine the protest within seven (7) days of receipt.”
Mr. Kieffer filed a protest with the Election Office on January 26, 1996, alleging that the Teamsters United slate slandered the reputation of the Teamsters for Justice slate by using the term “bigotry” in referring to their opponents in campaign literature.[2] On February 2, 1996, exactly seven days after filing his protest, Mr. Kieffer contacted Mr. Saidman about this charge. Mr. Kieffer stated that the action of the Teamsters United slate would have a negative effect on his slate in the upcoming election. He expected the Election Officer to respond to his protest within seven days and desired a public apology as a remedy to the protest.
The Election Officer acknowledges that she has not issued a decision in the protests filed by Mr. Kieffer, including P-390-LU435-RMT, within the seven-day time frame set forth in the Rules. However, the Election Officer also points out that Mr. Kieffer and/or members of the Teamsters for Justice slate filed 22 pre-election protests with her office.[3] While technically, Mr. Kieffer states a violation of the Rules, the Election Officer is confident that Mr. Saidman and the Election Office staff used their best efforts to keep up with this volume, but the number of protests, along with the volume of other pre-election protests filed with the Election Officer, makes a seven-day response extremely difficult. Mr. Kieffer can rest assured that his protests were thoroughly investigated by Mr. Saidman and carefully considered by the Election Officer as expeditiously as possible.
The Election Officer finds that neither Mr. Saidman nor any member of the Election Office has engaged in conduct which violates the Rules. Accordingly, the protest is DENIED.
3. P-393-LU435-RMT
In this protest, Mr. Kieffer asserts that the charged parties, the members of the Teamsters United slate, violated Article XII, Section 1(b)(3) of the Rules by using the postage meter from Local Union 435 to mail a campaign flyer to the membership on or about
February 1, 1996.
The charged parties respond that they reimbursed the local union for the costs of this mailing. They state that Local Union 435 has historically offered all candidates the opportunity to use its resources, with the understanding that the local union would be repaid.
George Keiffer, et al.
March 19, 1996
Page 1
Article VIII, Section 7(a)(1) of the Rules states that each candidate “shall be permitted a reasonable opportunity, equal to that of any other candidate, to have his/her literature distributed by the Union, at the candidate’s expense.” Section 7(c) specifies that candidates who utilize this opportunity “shall pay, on a reasonable basis, for the actual cost of distribution, including . . . time required to do the work and postage for mailing.”
The provision cited by the protester, Article XII, Section 1(b)(3), reinforces
Article VIII, Section 7 by stating that “[u]nion 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 to such assistance and are advised in advance, in writing of the availability of such assistance.”
In the instant case, the investigation conducted by the Election Officer demonstrates that the charged parties fully complied with the Rules. On January 29, 1996, the Teamsters United slate utilized the facilities of Local Union 435 to mail campaign literature. The evidence submitted by the charged parties shows that Roman Garcia gave a cashier’s check from Teamsters United to the local union in the amount of $1,770.04, representing payment for 5,480 labels ($16.44) and postage for mailing the campaign leaflets ($1,753.60). The charged parties paid two secretaries in the office $15.00 each for monitoring and running the mailing through the postage meter.[4]
Secondly, the evidence shows that Mr. Garcia, as principal officer of the local union, provided the same opportunity for a mailing to the Teamsters for Justice slate. By letter dated January 22, 1996, Mr. Garcia informed Mr. Kieffer of the applicable costs and procedure to accomplish a mailing in the local union office on February 3, 1996. In addition to the amounts for the labels and postage, Mr. Garcia stated that the secretaries’ time would cost $10.00 per person on an hourly basis. Mr. Kieffer responded by letter dated January 29 that his slate would pay the stated price for the labels, but would have no need for postage as it would already be applied to their mailing envelopes.
In accordance with the evidence described above, the Election Officer DENIES this protest.
4. P-395-LU435-RMT
Mr. Knoll, a member of the Teamsters for Justice slate, filed this protest against Sylvia Salazar, a member of the Teamsters United slate who serves as recording secretary of Local Union 435. The protester alleges that at approximately 8:30 a.m. on February 2, 1996, he observed Ms. Salazar at her work place, United Parcel Service (“UPS”), wearing a stick-on patch for the Teamsters United slate on her shirt. According to Mr. Knoll, UPS has a policy of prohibiting candidates for delegate “from wearing any sort of campaign related information on their regular uniforms.”
George Keiffer, et al.
March 19, 1996
Page 1
The charged party responds that when Mr. Knoll observed her, she had not yet punched in for work. After punching in, Ms. Salazar states, she wears the patch on the inside of her coat. According to Ms. Salazar, supervisors observed her patch on that date and did not tell her to remove it.
Article VIII, Section 11(a) of the Rules gives all union members “the right to participate in campaign activities, including the right to run for office . . . [and] to aid or campaign for any candidate.” While Section 11(a) prohibits campaigning during working hours, it states that “[c]ampaigning incidental to work” does not violate this section.
On September 20, 1995, the Election Officer issued an Advisory on Wearing of Campaign Buttons and Other Emblems, in which she held that the Rules protect “the right of IBT members to wear campaign emblems on buttons, t-shirts or hats while working.” An employer may curtail this right, the Election Officer stated, “only where the prohibition is necessary to maintain production and discipline, safety, or preventing alienation of customers.”
In the instant case, the protester asserts that UPS does not allow employees to wear campaign emblems at work. However, Mr. Knoll also informed the Associate Regional Coordinator that to his knowledge, management officials have never told any members to take off or remove such items. This is corroborated by Ms. Salazar’s statement that supervisors observed the Teamsters United patch on her shirt without incident.
Furthermore, the protester states that he observed Ms. Salazar wearing her patch around 8:30 a.m. The Election Officer credits Ms. Salazar’s statement that she had not yet punched into work at that time. Accordingly, the wearing of the patch is not a violation of the Rules.
For the foregoing reasons, the protest is DENIED.
5. P-442-LU435-RMT and P-446-LU435-RMT
Anthony Marquez filed a protest (P-442-LU435-RMT) against George Kieffer and Curt Bowker, another member of the Teamsters for Justice slate. The protester states that on February 5, 1996, he and another member were distributing leaflets for the Teamsters United slate outside a UPS facility, about 50 feet from where the charged parties were distributing their slate's literature. The charged parties, the protester asserts, violated the Rules by telling members passing by to throw the Teamsters United leaflet in the trash rather than read it, and advising members to vote for the Teamsters for Justice slate.
In P-446-LU435-RMT, Ms. Salazar asserts that the Teamsters for Justice slate violated the Rules by distributing campaign material which contains statements that are “not only untrue but offensive and misleading,” and by making offensive personal remarks about her.
George Keiffer, et al.
March 19, 1996
Page 1
Because these protests raise similar legal issues, the Election Officer will address them together.
As a threshold matter, Mr. Kieffer claims that these protests are untimely, under Article XIV, Section 2(b) of the Rules.[5] Mr. Kieffer states that on February 14, 1996, he received a copy of the letters sent by the Election Officer to the protesters on February 13, acknowledging receipt of their protests.[6] As copies of the charges were not enclosed,
Mr. Kieffer contacted the Associate Regional Coordinator to obtain the complete protests. By letter to the Election Officer dated February 20, 1996, Mr. Kieffer claimed that as “[a] week has passed and I have not received copies of the charges,” the protests should be declared untimely.
As the Election Officer stated in Garcia, supra, she acknowledges that Mr. Kieffer did not receive copies of the charges as he alleges. The Election Officer attributes this inadvertent error to the large volume of pre-election protests that were filed by members of Local
Union 435, particularly the Teamsters for Justice slate, which resulted in some administrative confusion. While the Election Officer regrets that this error occurred, and appreciates
Mr. Kieffer’s concern, she feels that Mr. Marquez and Ms. Salazar should not be penalized for problems that occurred in administration of their protests by the Election Office. Accordingly, the Election Officer will decide these cases on their merits.
In P-442-LU435-RMT, Mr. Marquez asserts that the remarks made by Mr. Kieffer and Mr. Bowker about the Teamsters United flyer interfered with his right to distribute campaign literature guaranteed by the Rules.[7]
In P-446-LU435-RMT, the flyer protested by Ms. Salazar has the headline “Elect the Working Teamsters.” Each member of the Teamsters for Justice slate is then listed, with several sentences after each name describing the candidate’s views. Ms. Salazar objects to a number of these statements, such as: “[H]ow many years can the members of Local 435 be kicked in the head by Roman Garcia and the current administration . . .??”; and “Local 435 has no communication between barns.”
George Keiffer, et al.
March 19, 1996
Page 1
In addition, the protester claims that members of the Teamsters for Justice slate have made “personal verbal attacks, slandering my name [and] accusing me of ‘sleeping’ or ‘being in bed’ with Roman Garcia and other members of my slate.” Ms. Salazar finds these comments to be very offensive.
The Election Officer has consistently held that the Rules “do not impose upon candidates the duty to be truthful in their remarks about opposing candidates.” Landwehr,
P-201-LU795-MOI (November 15, 1995). As the Election Officer stated in Newhouse,
P-388-LU435-RMT (February 21, 1996), “[t]he goal to be protected is free speech.” In Braxton, P-304-LU623-PHL (May 21, 1991), the Election Officer explained:
The fact that campaign statements . . . were allegedly false or even defamatory does not remove [them] from the protection of the Rules. The model for free and fair Union elections is that of partisan political elections . . . The cardinal principle is that the best remedy for untrue speech is more free speech, with the electorate being the final arbiter.
See Kieffer, P-390-LU435-RMT (February 27, 1996).
Accordingly, the Election Officer finds that the statements objected to by Ms. Salazar in her protest, both the statements contained in the campaign flyer and the remarks allegedly made by members of the Teamsters for Justice slate, do not violate the Rules.
The same analysis applies in P-442-LU435-RMT. While the statements allegedly made by the charged parties may have upset the protester, there is no evidence that the charged parties actually prevented Mr. Marquez from distributing his leaflets. Under the principles described above, the protested remarks are protected as free speech.
In P-446-LU435-RMT, Ms. Salazar also states that she observed Mr. Kieffer on several occasions, both at his place of employment and at union meetings, wearing a button on which the word “Teamster” is printed a number of times, with the word “Vote” superimposed in large letters. According to Ms. Salazar, Local Union 435 purchased these buttons for use in organizing campaigns, and in the elections of municipal, state and federal officials.
Mr. Kieffer, the protester charges, “is wearing this button without permission or authorization of Teamsters Local 435.”
As discussed above, Article VIII, Section 11(a) of the Rules provides that all union members have the right to participate in campaign activities, including the right “to openly support or oppose any candidate [and] to aid or campaign for any candidate.” The Election Officer has held that these provisions protect the right of IBT members “to wear campaign emblems on buttons, t-shirts or hats while working,” and while attending union meetings.
See Advisory on Wearing of Campaign Buttons and Other Emblems, supra; Pope and Stripniewicz, P-046-JC7-PNJ, et seq. (October 13, 1995); Blanchet, P-228-LU287-CSF (January 3, 1996).
George Keiffer, et al.
March 19, 1996
Page 1
In the instant protest, it is not clear that the button at issue represents an endorsement by the IBT of the Teamsters for Justice slate. While the button features the words “Teamsters” and “Vote,” there is no connection to the charged party’s slate. Regardless, pursuant to the aforementioned rulings of the Election Officer, Mr. Kieffer is entitled to wear this button while working and at union meetings without permission from Local Union 435.
Accordingly, the foregoing protests are DENIED.
6. P-444-LU435-RMT
Roger Quimby, a member of the Teamsters United slate, filed this protest against the members of the Teamsters for Justice slate, contending that a campaign flyer distributed by the charged parties is misleading to members and tells them how to vote. The flyer was mailed to the entire membership of Local Union 435, as well as given out by hand.[8]
The material objected to by the protester is a one-page flyer with the words “It’s TIME to VOTE!!!” at the top. (Emphasis in original). Underneath this line appears a picture of a man holding a bullhorn, with the word “VOTE” on the front of the horn; the slate name, Teamsters for Justice, is printed in large, bold letters next to this picture. The next line on the page states “Vote for Change” in capital letters, followed by the words “Dedication, Experience, Leadership.”
On the bottom half of the page, a sample official ballot is reproduced. Superimposed on the ballot is a hand holding a magnifying glass which encircles the Teamsters for Justice slate. The effect of the glass is that the names of the slate’s members are clearly seen, while it is almost impossible to make out the names of the protester’s slate, Teamsters United, and its members.
The protester asserts that “the way the front of the flyer was done (in part the magnifying glass) is miss leading [sic] to Local 435 members.” He claims that “[b]y blocking out the names of the other Delegates and Alt. Delegates this flyer is put out to tell the members how they are going to vote.”
George Keiffer, et al.
March 19, 1996
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The Election Officer recently addressed this issue in Newhouse, supra. In that case, the protester claimed that campaign literature distributed by the Teamsters United slate, which consisted of a copy of the ballot prepared by the Election Officer with various alterations, was misleading because the words “Official Ballot” appeared at the top of the page. Denying the protest, the Election Officer held that the flyer “is not deceptive or misleading” as the alterations made by the charged parties “clearly transformed the draft ballot into campaign literature.” See also Antoskiewicz, P-452-LU507-CLE (February 28, 1996).
The Election Officer pointed out that the use of sample ballots as campaign material was sanctioned by the Election Officer in the last election, quoting Rogers, P-518-LU373-SOU (February 21, 1991), as follows:
The Rules . . . secure for all candidates the freedom to fully exercise political rights through solicitations, support and the distribution of campaign literature. The Election Officer has consistently applied the Rules so as to safeguard the exercise of these political rights. The Rules neither prohibit nor regulate the content of campaign literature.
See also Hughes, P-499-LU710-CHI (February 21, 1991); Hammontree, P-530-LU667-SOU (February 25, 1991).
The Election Officer finds that the flyer in the instant protest is clearly campaign literature. Accordingly, the principles articulated in Newhouse, supra, and the cases cited therein apply, and the protest is DENIED.
7. P-445-LU435-RMT
Roman Garcia filed this protest against the members of the Teamsters for Justice slate. The protester claims that two pieces of campaign literature distributed by the charged parties have the words “union labor donated” at the bottom, “giving the impression that this was paid by the union.” Mr. Garcia further objects that the flyers do not have a “union bug,” demonstrating that a union shop printed the materials, and do not indicate “what money was used.”
The charged parties respond that Mr. Kieffer and Mr. Newhouse created and typed the two leaflets in question which were then printed at a print shop using campaign funds.[9] Other delegates on the slate and supporters helped to assemble the leaflets. According to
Mr. Kieffer, the words “union labor donated” on the flyers signify that IBT members prepared the materials without charge.
Article XII, Section 1(b)(3) of the Rules states that “[n]o Union funds or other things of value shall be used . . . to promote the candidacy of any individual.”
George Keiffer, et al.
March 19, 1996
Page 1
The words “union labor donated” generally imply that a union shop performed the work involved without charge. While that was not the case with the Teamsters for Justice flyers, the Election Officer credits the explanation of the charged parties as to why the term appeared on their materials. Furthermore, the Election Officer finds that the words “union labor donated” do not imply that union funds were used to produce the flyers, in violation of the Rules.
In regard to Mr. Garcia’s claim that the flyers lacked the “union bug” and do not indicate their source of funding, the Rules do not require candidates for delegate to include either of these items on campaign literature.
For the foregoing reasons, the protest is DENIED.
8. P-500-LU435-RMT and P-514-LU435-RMT
Robert Newhouse filed these protests against the Teamsters United slate and against Mr. Garcia individually. In both P-500-LU435-RMT and P-514-LU435-RMT, the protester asserts that the charged parties violated the Rules by using the facsimile machine in the local union office during regular business hours to file protests with the Election Officer.
Mr. Newhouse also objects to the use of membership funds to pay for the long distance telephone calls involved, and the use of employees’ time to fax the protests.
Because these protests involve identical legal issues, the Election Officer will address them together.
The protests referred to by Mr. Newhouse are P-436-LU435-RMT and P-463-LU435-RMT, both filed by Mr. Garcia, and P-442-LU435-RMT, filed by Anthony Marquez. The protest forms clearly indicate that they were faxed from Local Union 435 during business hours.
Article XII, Section 1(b)(3) of the Rules prohibits the use of “Union funds, facilities, equipment, stationery, personnel, etc. . . . to assist in campaigns.” However, the Election Officer has consistently held that filing a protest “is protected, and does not constitute support for a candidate or campaigning under the Rules.” Scalf, P-097-LU705-CHI (August 16, 1995). It is the view of the Election Officer that the right to file a protest, set forth in Article XIV, Section 1, is paramount and may not be restricted in any way. Id. See also Hoffa,
P-264-IBT-SCE (January 11, 1996); Jordan, P-269-LU337-SCE (January 18, 1996); Kloes,
P-487-LU249-PGH (March 4, 1996).[10]
George Keiffer, et al.
March 19, 1996
Page 1
Mr. Newhouse filed these protests on February 14, 1996. On February 22,
Mr. Newhouse filed a protest against the Election Officer and Mr. Saidman, claiming that
P-514 “was not responded to in a timely manner.” As the Election Office docketed this protest as part of P-514, Mr. Newhouse’s claim will be addressed below.
Mr. Kieffer raised the identical issue in P-392-LU435-RMT, supra, asserting that
Mr. Saidman had not responded to protests filed by Mr. Kieffer and others within the seven-day time period prescribed by Article XIV, Section 2(f) of the Rules. As in that case, the Election Officer finds in P-514-LU435-RMT that while Mr. Newhouse states a technical violation of the Rules, it can be attributed to the large volume of pre-election protests filed by members of Local Union 435 with her office. The Election Officer assures the protester, as she did Mr. Kieffer, that his charges were processed and carefully considered by herself as quickly as possible.
For the foregoing reasons, the protests are DENIED.
9. P-471-LU435-RMT and P-472-LU435-RMT
Robert Newhouse filed a protest (P-471-LU435-RMT) against the members of the Teamsters United slate, claiming that the charged parties violated Article XII, Section 1 of the Rules by using local union funds to publish a response to campaign literature of the Teamsters for Justice slate on February 13, 1996.[11] According to the protester, the local union paid for all the postage, paper, and envelopes involved in mailing the response, as well as “[a]ll labor for production.” Mr. Newhouse requests that the Teamsters United slate be disqualified from the election.
In P-472-LU435-RMT, Mr. Kieffer filed a charge against Roman Garcia and Steve Vairma, the president of Local Union 435 and a member of the Teamsters United slate, claiming that the charged parties “used their positions as officers of Local 435 to launch a political attack on the Teamsters for Justice slate” in the February 13 mailing. Like
Mr. Newhouse, Mr. Kieffer protests the use of local union funds in this mailing, asserting that the charged parties “were making a campaign response” to his slate’s material. He requests that Mr. Garcia and Mr. Vairma be disqualified as candidates, and, furthermore, that they reimburse the Teamsters for Justice slate for the cost of the mailing “since we were not provided equal access to such assistance.”
As these protests raise identical factual and legal issues, the Election Officer will address them together.
George Keiffer, et al.
March 19, 1996
Page 1
The Teamsters for Justice slate distributed a campaign flyer in early February 1996 which targeted Mr. Garcia and Mr. Vairma, as well as the local union executive board.[12] Under the headline “DON’T DO IT!!!!!!!!!” (emphasis in original), the flyer asked: “Are Roman Garcia and Steve Vairma preparing a petition to split the grocery barns out of Local 435 and merge them into Local 537?” Claiming that such petition has been posted at Super Valu Foods, the flyer stated that this merger “would be bad medicine for what ails Local 435.” The flyer further alleges that Mr. Garcia and the executive board approached Local Union 537 in the past in an attempt at a merger, but were rejected. The flyer queries: “Are they trying now to sell out just the grocery barns?”
Mr. Garcia and Mr. Vairma mailed a letter to the local union membership dated February 13, 1996 in which they responded to the claims made in the Teamsters for Justice flyer. The letter was printed on local union stationery and signed by Mr. Garcia and
Mr. Vairma as secretary-treasurer and president/business agent, respectively. The letter was addressed “To all members of Teamsters Local Union No. 435,” and stated as follows:
Once again more outlandish lies are being spread by the “Teamsters for Justice” slate regarding the Executive Board of Teamsters Local Union No. 435. Unfortunately, these latest misrepresentations are made in conjunction with the pending delegate election.
The election propaganda published by the “Teamsters for Justice” slate suggests that the Executive Board has posted a petition at SUPERVALU “to split the grocery barns out of Local 435.”
Given the nature of these false charges asserted by this group of individuals, we feel that an official response from the Executive Board is warranted.
The Executive Board . . . has not posted any petition or taken any other action to separate the grocery companies . . . In fact, the Executive Board has no intention now or in the future to split any part of our local.
George Keiffer, et al.
March 19, 1996
Page 1
There is no question that the charged parties mailed the February 13 letter after the ballots in the delegate election had been mailed, using exclusively local union funds. The Election Officer applies the “tone, timing and content test” to determine whether a union-financed publication or communication represents campaigning. Martin, et al., 010-IBT-PNJ, et seq. (August 17, 1995) (decision on remand), aff’d, 95 - Elec. App. - 18 (KC) (October 2, 1995); Gilmartin, et al., P-032-LU245-PNJ, et seq. (January 5, 1996), aff’d,
95 - Elec. App. - 75 (KC) (February 6, 1996).
In Gilmartin, supra, the Election Officer acknowledged that communications from elected union officers to their membership “often address issues which are involved in an election, and could, indeed, have a foreseeable effect of influencing the election.” However, the Election Officer continued, “so long as such communications concern issues of legitimate concern to the members and are not campaigning per se, the ‘subtext’ of the communications is acceptable as related to the union officials’ responsibilities.”
While the merger of a portion of Local Union 435 into another local union would be an issue "of legitimate concern" to the membership which the officers could address, the Election Officer finds that the February 13 letter represented campaigning by the Teamsters United slate because they responded in a way that connected their response to the election process. First, Mr. Garcia and Mr. Vairma state that they are specifically responding, on behalf of the executive board, to campaign material published by their opponents, the Teamsters for Justice slate. Second, the charged parties responded in emphatic terms, labeling the flyer as “election propaganda” which contained “outlandish lies” and “false charges.” Third, Mr. Garcia and Mr. Vairma declared in the first paragraph of their letter that their opponents’ “latest misrepresentations” are related to the upcoming election of delegates.
Accordingly, the Election Officer holds that the Teamsters United slate violated the Rules by using local union funds to publish its response of February 13, 1996 and the protests are GRANTED.
Because these protests are being considered in a post-election context, the Election Officer must consider whether the violation “may have affected the outcome of the election,” under Article XIV, Section 3(b) of the Rules. A violation alone is not grounds for setting aside an election unless there is a reasonable probability that the election outcome may have been affected by the violation. Wirtz v. Local Unions 410, 410A, 410B & 410C, International Union of Operating Engineers, 366 F.2d 438 (2nd Cir. 1966). To determine whether an effect exists, the Election Officer determines whether the effect was sufficient in scope to affect the outcome of the election and/or whether there was a causal connection between the violation and the result or outcome of the election. Dole v. Mailhandlers, Local 317, 132 LRRM 2299 (D.C.M.D. Alabama 1989).
In Donovan v. UAW, Local 719, 561 F. Supp. 54, 113 LRRM 2902, motion to vacate denied, 113 LRRM 2906 (N.D. Ill. 1982), the Court found that Section 401(g) of the Labor-Management Reporting and Disclosure Act was violated due to the use of union funds to distribute a leaflet during the course of an election campaign. In that case, the opposition slate distributed campaign literature criticizing the collective bargaining agreement. The incumbent officers issued a response using union personnel, supplies and equipment. The response did not mention the campaign, but alleged that the nonincumbents acted in bad faith. Nonetheless, the Court found a violation of Section 401(g). The court stated:
George Keiffer, et al.
March 19, 1996
Page 1
While [the incumbents] may have had some legitimate purpose in deciding to circulate a response to the ULW leaflet, taken as a whole the leaflet enhanced the candidacy of the incumbent slate and encouraged their re-election. Furthermore, the union leadership had several far less politically oriented means of responding to the leaflet . . . Instead, defendant produced and distributed materials which clearly constitute prohibited campaign literature.
See Donovan, 113 LRRM at 2904.
Here, the offending literature explicitly referenced the election and the opposing slate. A total of 5,962 ballot packets were mailed to Local Union 435 members. All of the members who received ballots presumably also received the letter from Mr. Garcia and Mr. Vairma. Some 1,843 ballots were cast and received by the U.S. Postal Service, and the number of valid ballots counted totaled 1,708. One hundred votes separated the candidate winning the final delegate position, Roger Quimby of the Teamsters United slate, and the candidate finishing just behind, Robert H. Newhouse of the Teamsters for Justice slate. One hundred twenty-one votes separated the candidate winning the final alternate delegate position, Gary Stugart of the Teamsters United slate and the candidate finishing just behind, Alan Frisbee of the Teamsters for Justice slate. The letter from Mr. Garcia and Mr. Vairma was mailed to all members of the local union on union letterhead on February 13, 1996, after the ballots had been mailed to the members. Records of the U.S. Post Office indicate that far more than 100 ballots were received after that date. Accordingly, the Election Officer finds that it is reasonably probable that the letter may have influenced the votes cast in the delegate election and, therefore, may have affected the outcome of the election.
In light of the violation of the Rules described above and the close election results, the delegate election in Local Union 435 is declared void and a new election, which will be conducted by the Election Officer, is ordered. The Election Officer will be in communication with all of the nominated candidates with respect to the details of the re-run election.
10. P-482-LU435-RMT
Mr. Kieffer filed this protest against Mr. Garcia, Mr. Vairma, and Associate Regional Coordinator Saidman. The protester alleges that Mr. Saidman “indicated” to Mr. Newhouse that he had “prior knowledge” of a letter sent by the local union executive board to the membership on February 13, 1996 in response to campaign literature of the Teamsters for Justice slate. See P-471-LU435-RMT, P-472-LU435-RMT, supra. Mr. Saidman, the protester claims, “was selected as the Election Officer by Roman Garcia.” Mr. Kieffer further contends that Mr. Roman and Mr. Vairma “are using the Election Officer, at member expense, to preview campaign rhetoric mailed to all members under the guise of Official Union Business.”
George Keiffer, et al.
March 19, 1996
Page 1
The investigation of this protest was supervised by Election Office Protest Chief Benetta Mansfield.
Pursuant to her authority under Article I of the Rules to “supervise all phases of the International Union delegate and officer election,” the Election Officer hires coordinators throughout the United States and Canada to serve as her representatives. No International or local union officers play any role in this selection and the Election Officer’s representatives, including Mr. Saidman, report exclusively to the Election Officer. In the region encompassing Colorado, the Election Officer hired Mr. Saidman as an Assistant Regional Coordinator to oversee the election of delegates in Local Union 435. Neither Mr. Garcia, nor anyone else in the local union, had any input into the Election Officer’s decision.
In regard to the protester’s contention that Mr. Saidman “previewed” campaign material for the Teamsters United slate, the Election Officer’s investigation indicates as follows. On February 8, 1996, Mr. Vairma informed Mr. Saidman by telephone that the members of the executive board were very angry about a campaign flyer distributed by the Teamsters for Justice slate which intimated that the board was trying to merge part of Local Union 435 into another local union. Mr. Vairma stated that the executive board planned to reply to the flyer. The telephone conversation was very brief, as Mr. Saidman had to leave to go out of town.
On February 9, Mr. Saidman telephoned Mr. Vairma. As the latter was not at his office, Mr. Saidman left a message stating that the executive board could respond to the campaign flyer. Mr. Saidman’s answer was consistent with the Rules, which do not prohibit local union officers from answering charges against them on union stationery in their official capacity. As stated in P-471-LU435-RMT and P-472-LU435-RMT, supra, what caused the response of the executive board to violate the Rules was its use of campaign rhetoric. At no point, however, did Mr. Saidman review or even see the executive board’s response of February 13, 1996 in advance, nor did the officers tell Mr. Saidman the contents of their response.
For the foregoing reasons, the instant protest is DENIED.
11. P-568-LU435-RMT
Mr. Newhouse filed this protest against the members of the Teamsters United slate. The protester contends that the election of delegates in Local Union 435 “cannot be declared as final until all election protests are heard and settled.”[13] Secondly, Mr. Newhouse objects to the use of local union funds by the Teamsters United slate to send campaign literature to the membership on February 13, 1996.
George Keiffer, et al.
March 19, 1996
Page 1
In regard to the first issue, the Election Officer acknowledges that a number of pre-election protests filed by Mr. Newhouse and other members of Local Union 435 had not been decided by February 28, 1996. However, the Rules do not preclude an election count from occurring even though pre-election protests are pending with the Election Officer. Rather, Article XIV, Section 2(f)(2) allows the Election Officer to “defer making a determination [of a pre-election protest] until after the election and thereby treat the matter as a post-election protest . . . as if such protest was filed on election day.”
Thus, there was no impediment to Mr. Saidman counting the ballots and declaring the results of the delegate election in Local Union 435. The successful candidates are not certified by the Election Officer as delegates or alternate delegates until all pending protests have been resolved. Accordingly, this portion of the protest is DENIED.
Mr. Newhouse’s second claim regarding the February 13 letter is identical to his protest in P-471-LU435-RMT, supra, and the decision of the Election Officer in that protest applies equally here.
12. Post-5-LU435-RMT
George Kieffer filed this protest against Associate Regional Coordinator Saidman on March 5, 1996. The protester states that he requested certain information about the election from Mr. Saidman at the ballot count on February 28, 1996, and in writing the following day, such as the number of ballots printed, the number mailed, and how many were retrieved from the post office. Mr. Saidman, Mr. Kieffer asserts, “was deliberately out of town” for the two days following the election. The protester states that Mr. Saidman has not supplied him with the information he requested, preventing him “from being able to file a post election protest in a timely manner.” The protester asks that a new election be held.
This investigation of this protest was supervised by Election Office Protest Chief Benetta Mansfield.
Mr. Kieffer served as the observer for the Teamsters for Justice slate in the Local Union 435 delegate election. Article X, Section 1(a) of the Rules states that each slate of candidates has the right to have an observer present “at each and every phase of the election process.” This includes “the printing of ballots, [and] preparation of ballot packages and/or mailing of ballots from a centralized location.” Article X, Section 5 states that observers “shall be permitted to observe the entire mailing process,” while Section 6 gives observers the right to “observe the election count.”
Mr. Kieffer does not claim that his rights as an observer were impinged in any way. Rather, he protests the fact that information he wanted, which the Rules do not require the Election Officer to supply, was not given to him immediately by the Election Officer’s representative. Thus, the protester does not allege a violation of the Rules.
George Keiffer, et al.
March 19, 1996
Page 1
Furthermore, the Election Officer’s investigation shows that Mr. Saidman responded to Mr. Kieffer’s request in a prompt and responsible manner. Mr. Saidman went out of town for two days following the election due to the demands of his position with the University of Colorado. On March 4, 1996, Mr. Kieffer notified the Election Officer in writing that he wished to withdraw his protest of March 2[14] “as I have learned that [Mr. Saidman] was out of town and was unable to respond to my request of Feb. 29, 1996.” Mr. Kieffer apparently changed his mind and filed a protest with the Election Office on March 5. The following day, Mr. Saidman telephoned Mr. Kieffer and provided the information the protester sought over the phone. The next day, Mr. Saidman faxed the information to Mr. Kieffer as well.
For 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
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
Zeik Saidman, Associate Regional Coordinator
[1]Under Article XII, Section 1(b)(1), the Rules read, “No labor organization . . . may contribute, or shall be permitted to contribute, directly or indirectly, anything of value, where the purpose, object or foreseeable effect of the contribution is to influence, positively or negatively, the election of a candidate . . .”
[2]P-390-LU435-RMT (February 26, 1996).
[3]Mr. Kieffer is the charging party in 12 of these protests.
[4]The leaflets had already been folded by the printer.
[5]Section 2(b) requires all pre-election protests to be filed “within two (2) working days of the day when the protestor becomes aware or reasonably should have become aware of the action protested.”
[6]Mr. Kieffer raised an identical claim in Garcia, P-436-LU435-RMT (February 22, 1996).
[7]Article VIII, Section 11(a) states that all members “retain the right to participate in campaign activities, including the right . . . to aid or campaign for any candidate.”
[8]Mr. Kieffer claimed the instant protest was untimely, for the same reasons enunciated in P-442-LU435-RMT and P-446-LU435-RMT, supra. The decision of the Election Officer in those protests applies equally here, and the instant case will be decided on the merits.
[9]As in P-442-LU435-RMT, P-444-LU435-RMT, and P-446-LU435-RMT, supra,
Mr. Kieffer objected that the instant protest was untimely. The decision of the Election Officer in those protests applies equally here.
[10]In Scalf and Kloes, supra, the Election Officer specifically found that use by a local union officer of the union’s facsimile machine and other equipment, as well as secretarial time, did not violate the Rules.
[11]Article XII, Section 1(b)(1) prohibits a labor union from contributing “anything of value, where the purpose, object or foreseeable effect of the contribution is to influence . . . the election of a candidate . . . These prohibitions . . . include contributions and use of the organization's stationery, equipment, facilities and personnel.” See also Section 1(b)(3).
[12]Mr. Kieffer, in P-472-LU435-RMT, states that this flyer “was distributed to a limited number of Local 435 members.”
[13]The election occurred on February 28, 1996. According to the protester, the Associate Regional Coordinator announced at 4:00 p.m. that the ballots had been counted and the election was final.
[14]The Election Office has no record of receiving a protest from Mr. Kieffer on this date.