May 8, 1996
VIA UPS OVERNIGHT
Archie Cook, et al.
May 8, 1996
Page 1
Archie Cook
4508 Balmoral Drive
Richton Park, IL 60471
James P. Hoffa
2593 Hounds Chase
Troy, MI 48098
Dane Passo
6811 W. Roosevelt Road
Berwyn, IL 60402
Harry Stewart
3N890 S. Bridle Creek Drive
St. Charles, IL 60175
John McCormick, President
Teamsters Local Union 705
1645 W. Jackson Boulevard
Chicago, IL 60612
Edward Benesch, Vice President
Teamsters Local Union 705
1645 W. Jackson Boulevard
Chicago, IL 60612
Gerald Zero, Secretary-Treasurer
Teamsters Local Union 705
1645 W. Jackson Boulevard
Chicago, IL 60612
Barbara Ann Navigato
Teamsters Local Union 705
1645 W. Jackson Boulevard
Chicago, IL 60612
Katina Scoffus
Teamsters Local Union 705
1645 W. Jackson Boulevard
Chicago, IL 60612
Sam Becker
Teamsters Local Union 705
1645 W. Jackson Boulevard
Chicago, IL 60612
Tom Nightwine
Teamsters Local Union 705
1645 W. Jackson Boulevard
Chicago, IL 60612
Daniel Shaughnessy
Teamsters Local Union 705
1645 W. Jackson Boulevard
Chicago, IL 60612
Jo Pressler
Teamsters Local Union 705
1645 W. Jackson Boulevard
Chicago, IL 60612
Archie Cook, et al.
May 8, 1996
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Otis Cross
Teamsters Local Union 705
1645 W. Jackson Boulevard
Chicago, IL 60612
Steve Pocztowski
Teamsters Local Union 705
1645 W. Jackson Boulevard
Chicago, IL 60612
Ron Carey, General President
International Brotherhood of Teamsters
25 Louisiana Avenue, N.W.
Washington, DC 20001
John Sullivan, Assoc. Gen. Counsel
International Brotherhood of Teamsters
25 Louisiana Avenue, N.W.
Washington, DC 20001
Robert Stout
1617 Sycamore
Hanover Park, IL 60103
Dale Thompson, Dispatch Supervisor
Hyman Freightways
5100 S. Lawndale
Summit, IL 60501
Martin Wald
Schnader, Harrison, Segal & Lewis
1600 Market Street, Suite 3600
Philadelphia, PA 19103
Archie Cook, et al.
May 8, 1996
Page 1
Re: Election Office Case Nos. P-337-LU705-CHI
P-433-LU705-CHI
P-508-LU705-CHI
P-517-LU705-CHI
P-518-LU705-CHI
P-617-LU705-SCE
P-620-LU705-CHI
P-622-LU705-CHI
P-626-LU705-CHI
P-706-LU705-CHI
Post-14-LU705-CHI
Gentlepersons:
This matter involves 10 pre-election protests deferred by the Election Officer for post-election review and a post-election protest concerning election procedure pursuant to
Article XIV, Section 2(f)(2) of the Rules for the 1995-1996 IBT International Union Delegate and Officer Election (“Rules”). Archie J. Cook, a member of the Hoffa-Hogan Delegates (“Hoffa”) slate from Local Union 705, filed eight pre-election protests and the post-election protest, pursuant to Article XIV, Section 3(a) of the Rules. When a delegate election has occurred and the Election Officer has deferred pre-election protests for post-election review, she reviews all the remaining protests in a single consolidated decision. The purpose of such a consolidation is to examine all the outstanding issues pertaining to the delegate election in a single determination. Thus, if there are violations found, the Election Officer can then consider cumulative effect of any such violations on the outcome of an election.
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May 8, 1996
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In P-337-LU705-CHI, Mr. Cook alleges that Barbara Ann Navigato, Sam Becker and Katina Scoffus wore Reformers Pride Movement (“RPM”) slate paraphernalia “while being paid by Local 705,” in violation of the Rules. In addition, he alleges that Ms. Navigato violated the Rules when, referring to the protester, she stated, “He is an ass.” In P-508-LU705-CHI, the protester alleges that the new policy of Local Union 705 to exclude members who cannot show that they are in good standing from participating at membership meetings might prevent members from exercising political rights. In addition, he alleges that the policy was unevenly applied for political purposes. In P-517-LU705-CHI, the protester alleges that steward Daniel Shaughnessy threatened to refuse to adequately represent members in his shop who supported the Hoffa slate. In P-518-LU705-CHI, the protester alleges that local union officers appointed “large numbers” of stewards at work sites presumed to favor the RPM slate. The protester contends that these appointments were intended to provide a “ready army of campaign workers” for the RPM slate.
In P-617-LU705-SCE, Mr. Cook and James P. Hoffa, a candidate for general president, allege that General President Ron Carey used union resources to campaign on behalf of Gerald Zero, secretary-treasurer of Local Union 705 and a candidate for delegate on the RPM slate. The protesters contend that Mr. Carey’s appearance at a press conference, at which the settlement of a lawsuit against Local Union 705 was announced, was intended to help Mr. Zero’s candidacy, in violation of the Rules.
In P-622-LU705-CHI, Mr. Cook alleges that the Election Officer failed to decide four of his previous protests and, thus, deprived him of an effective remedy. In P-626-
LU705-CHI, Mr. Cook alleges that an agent of Hyman Freightways (“Hyman”), an employer of Local Union 705 members, removed campaign literature from bulletin boards on Hyman’s property. The protester contends that he had a pre-existing right to post his literature, so the employer’s removal of it violates the Rules. In P-706-LU705-CHI, Mr. Cook alleges that the RPM slate accepted employer campaign contributions from the American Federation of State, County, and Municipal Employees (“AFSCME”) when the slate used AFSCME facilities to conduct phone-banking. The protester contends that AFSCME has refused to allow Hoffa slate candidates to use it facilities. As a result, the protester reasons, even if the RPM slate paid for these services, AFSCME’s denial of equal access makes the use of its facilities an impermissible campaign contribution, under the Rules.
Local Union 705 member Dane Passo filed a protest docketed as P-433-LU705-CHI against Tom Nightwine, a Local Union 705 business agent. In the protest, Mr. Passo alleges that Mr. Nightwine posted campaign literature on a work-site bulletin board while on union time. The protester further alleges that Mr. Nightwine intimidated members at the work site, in violation of the Rules.
Local Union 705 member Harry Stewart filed a protest docketed as P-620-LU705-CHI, in which he alleged that Bob Stout distributed campaign material while on work time at a UPS facility. Mr. Stewart asks that the RPM slate be given similar access.
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May 8, 1996
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After the ballot count in the Local Union 705 delegate election, Mr. Cook filed
Post-14-LU705-CHI, in which he alleges that paid employees and officers of Local Union 705 observed the re-count of ballots cast in the delegate election, in violation of the Rules.
Regional Coordinators Julie E. Hamos and Bruce Boyens investigated the protests.
The counting of the ballots for the mail-ballot delegate election at Local Union 705 took place on March 23, 1996. There were 6,511 ballots cast, of which 5,782 were counted. Two slates competed for the 18 delegate positions and six alternate delegate positions. The results of the election were as follows:
Delegate:
Name Slate/Independent Votes
Mike Husar Hoffa 3,149
Michael A. Giovannetti Hoffa 3,129
Leroy Ellis Hoffa 3,127
Wally Mathis Hoffa 3,135
Jack Slattery Hoffa 3,138
Benny Leonardo Hoffa 3,113
Archie J. Cook Hoffa 3,139
Michael J. Colgan Hoffa 3,129
Ted Mullins Hoffa 3,131
Eugene Phillips Hoffa 3,148
Michael E. Deane Hoffa 3,128
Kenneth Beck Hoffa 3,139
Herman G. Roberts Hoffa 3,097
Ralph G. Hinton Hoffa 3,109
Neil Messino Hoffa 3,125
Larry E. Hart Hoffa 3,149
Thomas N. Gamino Hoffa 3,086
Larry Hartigan Hoffa 3,141
Gerald Zero RPM 2,714
John McCormick RPM 2,751
Edward J. Benesch RPM 2,721
Bennie Jackson RPM 2,727
Greg Galles RPM 2,719
James C. Drews RPM 2,713
Mike Thornton RPM 2,735
Lorelei Anderson RPM 2,730
Sergio Oceguera RPM 2,695
Bob Persak RPM 2,744
Steve Pocztowski RPM 2,750
Walter M. Trakys RPM 2,709
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William M. Blake RPM 2,732
Rick Rohe RPM 2,739
John J. Igoe, Jr. RPM 2,686
Harry E. Stewart RPM 2,730
Freeman Wilson RPM 2,707
Bruce R. Weyand RPM 2,718
Alternate Delegate:
Angelo Geraci Hoffa 3,112
Al Wimunc Hoffa 3,091
C. Anthony McKinney Hoffa 3,111
Edmund J. Urbaniak Hoffa 3,120
Thomas Swiatowiec Hoffa 3,120
John T. Reid Hoffa 3,127
Dennis Deboni RPM 2,721
Bruce S. Saxe RPM 2,725
Jerry Blitstein RPM 2,729
Jon Clary RPM 2,720
Charles E. Hockemeyer RPM 2,716
Lee A. Kelly RPM 2,733
1. P-337-LU705-CHI
Mr. Cook advises the Election Officer that he wishes to withdraw this protest. The Election Officer, finding that the withdrawal effectuates the purpose of the Rules, permits the protest to be WITHDRAWN.
2. P-433-LU705-CHI
Mr. Passo alleges that Mr. Nightwine campaigned by posting campaign material at a work site on union time and intimidated members in his bargaining unit.
The local union responds that Mr. Nightwine, a contract administrator, did not post, nor did he authorize the posting of, the document at issue. Further, the local union argues that the document, a letter from Gerald Zero to Bill Hogan regarding a strike at Amerigas, concerned issues of legitimate concern to the membership unconnected to the election.
During the investigation, Mr. Passo stated that he was not present during the alleged incident and had no personal knowledge of the event. He told the investigator that he would provide the names and telephone numbers of two witnesses. As of the writing of this protest, however, Mr. Passo has failed to provide this information.
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Article XIV, Section 1 of the Rules places the burden on the complainants “to present evidence that a violation has occurred.” Further, the Election Appeals Master has stated that the protester bears the initial burden of proof to offer evidence substantiating his allegations. In Re: Chentnik, 95 - Elec. App. - 52 (KC) (January 10, 1996).
Accordingly, Mr. Passo has failed to meet the evidentiary burden required by the Rules. Therefore, his protest is DENIED.
3. P-508-LU705-CHI
Mr. Cook alleges that the local union’s adoption of “a new admissions procedure under which each person seeking to attend [membership meetings] is required to stand in line and show proof of identification and that he/she is in good standing” at its March 1996 membership meeting violates the Rules because, through its operation, members who may participate in the political process are barred from meetings. He also alleges that the policy is applied in a discriminatory fashion because individuals who would not be allowed to attend the meeting under the new policy are admitted through a back door if they are political supporters of Ron Carey and the local union officers who are candidates for delegate.
The local union responds that, because of high anticipated attendance and its desire to maintain order at the meeting, it had a reasonable basis to enforce the policy, whereby only members in good standing were admitted to the meeting. The local union points to the Election Officer’s decision in Siemzuch, P-358-LU705-CHI (March 5, 1996), aff’d, 96 - Elec. App. - 146 (KC) (March 29, 1996) in which the protested policy was found not to violate the Rules when it was implemented at the local union’s nomination meeting. The local union further states that members admitted through the back door of the meeting hall are wardens and conductors who assist the chair with security, members who assist with meeting setup and members who help check the status of potential attendees. According to the local union, these individuals have their good-standing status verified, are given a unique hand stamp and then are admitted to the meeting hall through the back door.
In support of his allegations, the protester provided a video tape on which was recorded a three-minute segment displaying the back door of the auditorium. On the tape, six people enter the meeting hall.
The protester claimed that approximately 60 members were allowed in through the back door. The protester also supplied the names of four witnesses, of which two were available for this investigation. Both expressed resentment that the new policy had been put in place and both claimed that members are allowed through the back door. John Reid stated that a group of 50 to 70 people entered through the back door at the March meeting, followed later by a second group of an indeterminate number. Ed Urbaniah said that the local union “sneaks in about 300 members through the back door.”
The local union states that it required between 33 and 38 conductors, wardens and checkers at the meeting, and that these were the individuals who came through the back door.
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The local union had the same reasonable basis for excluding members from the March meeting as it had for the nomination meeting, as analyzed in Siemzuch, supra. The investigation revealed that the March 1996 meeting had very high attendance. The local union may take reasonable action to answer the need to limit attendance and maintain order at the meeting, especially in light of the fact that the Election Officer has previously noted that there have been multiple charges concerning disruptive conduct at Local Union 705 meetings. Id. See Passo, et al., P-273-LU705-CHI, et seq. (February 22, 1996). As a result, the enforcement of this policy does not violate the Rules.
Further, the protester has provided no credible evidence to indicate that political supporters were brought in through the back door either because they were not in good standing or because the local union officers wished them to occupy the first rows of seats. The local union has provided a rational explanation for the back door admissions. The video tape does not refute the local union’s contention that these individuals were admitted for a valid purpose, nor does it show that members were admitted in numbers greater than those claimed by the local union.
Admitting members who are helping to organize and conduct a meeting through a door other than the one at which the general membership has lined up to be verified does not violate the Rules.
For the foregoing reasons, the protest is DENIED.
4. P-517-LU705-CHI
Mr. Cook alleges that, while distributing Hoffa slate literature at a UPS facility on February 20, 1996, he overheard Shop Steward Daniel Shaughnessy say to the workers present, “Don’t take [the protester’s] literature or I won’t represent you if you have a problem.”
On February 20, 1996, the protester and fellow slate supporters Leroy Ellis and Larry Hart were distributing campaign literature to members at a UPS facility in Harvey, Illinois. At one point, Mr. Hart opened a service door to the facility and had a loud and vigorous discussion with Mr. Shaughnessy and Sean Gallman, who were inside.
Mr. Hart states that when he opened the service door, he heard Mr. Shaughnessy threatening members, but does not remember what Mr. Shaughnessy said.
Mr. Ellis states that he arrived late to the facility and while distributing literature, he heard members state that Mr. Shaughnessy had threatened to refuse to represent them if they took the Hoffa literature. According to Mr. Ellis, he and Mr. Cook moved closer to the access door, behind which Mr. Shaughnessy was standing. Mr. Ellis states that when he and Mr. Cook were 20 feet away from the door, exiting workers opened the door and Mr. Ellis heard Mr. Shaughnessy shouting, “If you take their literature, I will not represent you if you have a problem.”
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Mr. Gallman states that he, Mr. Shaughnessy and other members, including Karl Rozak, were in the cafeteria while Messrs. Cook and Hart distributed literature in the parking lot. According to Mr. Gallman, Mr. Hart pulled open the access door leading from the cafeteria to the parking lot and asked him and Mr. Shaughnessy, “What are you Carey guys doing?” Mr. Gallman states that a short, loud, heated discussion ensued between Messrs. Shaughnessy and Gallman and Mr. Hart regarding local union policy and the upcoming election. Mr. Gallman denies that Mr. Shaughnessy ever threatened to retaliate against workers who took Hoffa slate literature.
Mr. Shaughnessy admits speaking to Mr. Hart after Mr. Hart opened the access door, but denies threatening to fail to represent members who took the literature. He states that
Mr. Ellis was not on the property during this incident. Mr. Rozak, a UPS employee and member of Local Union 705, basically corroborates Messrs. Gallman and Shaughnessy. He states that he was seated in the cafeteria on a catwalk over the service door when Mr. Hart opened the door. He states that a loud and vigorous discussion followed, but that
Mr. Shaugnessy did not threaten to not represent members who were Hoffa supporters.
Article VIII, Section 11(f) of the Rules prohibits any retaliation against anyone by the union or its agents for exercising any right guaranteed by the Rules.[1] To demonstrate retaliation, a protester must show that conduct protected by the Rules was a motivating factor in the adverse decision or conduct in dispute. The Election Officer will not find retaliation if she concludes that the union officer or entity would have taken the same action even in the absence of the protester’s protected conduct. Gilmartin, P-032-LU245-PNJ (January 5, 1996), aff’d, 95 - Elec. App. - 75 (KC) (February 6, 1996). See Leal, P-051- IBT-CSF (October 3, 1995), aff’d, 95 - Elec. App. - 30 (KC) (October 30, 1995); Wsol.
The Election Officer recognizes the fact that none of these witnesses are disinterested parties. The investigation revealed that Mr. Rozak is a friend and co-worker of both Messrs. Shaughnessy and Gallman. While recognizing this fact, however, the Election Officer credits the testimony of those inside the facility. Mr. Hart was in the best position to hear any threat made, but does not recall what was said. Mr. Ellis and Mr. Cook claim to remember the threat verbatim, but were, by Mr. Ellis’ admission, at least 20 feet away and outside the building when the alleged threat was uttered. In addition, Mr. Ellis states that exiting workers opened the access door, while Mr. Hart states that he opened the door himself. Finally,
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Mr. Ellis admits that he arrived at the site late, but was in time to overhear the alleged threat. These inconsistencies lead the Election Officer to the conclusion that a loud argument between Messrs. Shaughnessy and Gallman and Mr. Hart did occur at the UPS facility. However, the evidence does not support the claim that Mr. Shaughnessy made the threats the protester alleges that he made.
As a result, the protest is DENIED.
5. P-518-LU705-CHI
Mr. Cook alleges that Local Union 705 has appointed a disproportionately large number of new UPS stewards in an effort to create a body of “foot soldiers” to promote RPM slate candidates.
The local union responds that its records indicate that the local union has 286 stewards or assistant stewards. Of those, 161 are stewards or assistant stewards at UPS work sites. According to the local union, since the new leadership was elected in April 1995, 62 non-UPS stewards and assistant stewards have been appointed while only 30 UPS stewards and assistant stewards have been appointed.
During the investigation, the protester provided the names of three witnesses to support his allegation. Two of these witnesses were contacted. Mike Colgan stated that their did seem to be a high proportion of UPS stewards at stewards’ meetings, but that he did not believe this to be a violation of the Rules. The second witness, Neil Messino, stated that he believes in the veracity of the protester’s allegations, but has “no proof besides my gut feeling.”
Because the protester has failed to provide evidence of the violation alleged, the protest is DENIED.
6. P-617-LU705-SCE
Messrs. Cook and Hoffa allege that Mr. Carey’s appearance at a press conference, to announce the settlement of a Local Union 705 lawsuit involving Health and Welfare Pension Funds of Local Union 705, was a campaign appearance intended to help Mr. Zero’s candidacy and to influence the results of the delegate election. The protesters also allege that two press releases distributed through the IBT’s communications department announcing the press conference and concerning Mr. Carey’s appearance in Chicago also constitute impermissible campaigning. Finally, the protesters allege that this campaign appearance by Mr. Carey is part of a pattern and practice of union-financed campaign travel.
Responding on behalf of Messrs. Carey and Zero, the IBT states that Mr. Carey’s attendance at the press conference was made to perform a legitimate union function and did not constitute campaigning.
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A press conference was held on March 12, 1996 announcing that a settlement agreement had been reached in a lawsuit originally filed by Mr. Cook against the Local
Union 705 pension fund and various others. Mr. Cook is the original plaintiff in the lawsuit, which was consolidated with a second lawsuit filed on February 9, 1995 by Local Union 705.
There is no dispute that Mr. Carey appeared at the press conference and that press releases announcing and detailing his appearance in Chicago to announce the lawsuit’s settlement. The releases were distributed on March 12. Union funds were used by Mr. Carey to attend the function and to distribute the press release. Ballots for the local union delegate election were mailed to local union members on February 28 and were counted on March 23.
By way of background, this lawsuit, and the announcements surrounding its settlement, have been the subject of prior decisions of the Election Officer. In Martin, et al., P-010-
IBT-PNJ, et seq. (August 17, 1995), aff’d, 95 - Elec. App. - 18 (KC) (October 2, 1995), the Election Officer addressed a protested article in the April/May 1995 issue of Teamster magazine which announced the filing of the lawsuit by Local Union 705. There, the Election Officer found that the article was not in violation of the Rules, stating, “[A]llegations of pension fund misuse are certainly of general interest to the membership. Because Mr. Carey was announcing an IBT lawsuit against alleged parties to the fraud, the photograph bears a reasonable relationship to his involvement with those activities.” In Cook, P-338-LU705-CHI (Febraury 21, 1996 ), aff’d, 96 - Elec. App. - 117 (KC), Mr. Cook alleged that when
Mr. Zero announced the settlement of the same lawsuit at a January 21, 1996 membership meeting, that the announcement was a campaign contribution from the IBT to Mr. Zero’s candidacy for delegate. The Election Officer denied the protest, stating that Mr. Zero was reporting on the official business of the union and did not violate the Rules.
This protest represents yet another chapter in the history of this litigation. The content of these press releases is at issue. Also disputed is the purpose of the press conference and Mr. Carey’s connection with the event. The protesters contend that the timing of the press conference was a ruse to impact the delegate election in Local Union 705. They also contend that it was for political reasons because Mr. Cook, an original plaintiff in the lawsuit who supports Mr. Hoffa’s candidacy, was not invited to participate in the conference.
The IBT press releases protested here refer to the lawsuit’s settlement. The first release is entitled, “Teamsters Recoup $Millions Drained by Corruption from Chicago Health and Pension Funds.” The subheading states “Ron Carey to Announce New Victory in Clean-up of Local 705, Formerly One of the Nation’s Most Corrupt.” The release then details
Mr. Carey’s appearance in Chicago on March 12. It goes on to state:
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The news conference will announce the conclusion of a multi-million dollar racketeering lawsuit filed by the union in February 1995 to reclaim money improperly funneled out of the health and pension funds. Defendants, who were accused of violating Federal racketeering and pension laws, include Dan Ligurotis, the former chief officer of the local who was removed for corruption; a doctor who ran the health clinic; a lawyer paid by the Local and the Fund; a mobster who received nearly $2 million as part of an ill-fated scheme to create an upscale restaurant at ‘Teamster City;’ and employer-appointed Fund trustees who failed to prevent improper expenditures.
Chicago Teamsters Local 705, which had a longstanding reputation as one of the biggest and baddest Teamster locals, is today known only as one of the biggest, thanks to aggressive action by the democratically elected International and Local leaders against corruption.
“Local 705 used to be a cookie jar for perks and privileges for corrupt officers and their cronies,” said Carey. “But no more. “Today’s Local 705 has one purpose only--to serve the members.”
The second release also writes of Mr. Carey’s appearance. The release is entitled, “Teamsters Win $13.5 Million for Health and Pension Funds in Racketeering Suit” and subtitled, “Health Clinic that Former Officials Nearly Bankrupted is Now on Firmer Financial Foundation.” The release speaks about the number of members, retirees and beneficiaries affected by the settlement and contains quotes from Mr. Carey similar to that in the other release. The press release also states:
The lawsuit whose settlement was announced today was filed on February 9, 1995, by seven members of Local 705 as a class action on behalf of all the participants and beneficiaries of the pension and health funds. The suit named as defendants ousted Local 705 Secretary-Treasurer Ligurotis, former clinic director Dalessandro, lawyer Sherman Carmell, and the employer-appointed funds trustees . . .
Article VIII, Section 8(a) of the Rules states that a union-financed publication or communication may not be “used to support or attack any candidate or the candidacy of any person.” Correspondingly, Article VIII, Section 11(c) provides that no union funds or union resources may be used to assist in campaigning. In reviewing union-financed communications for improper campaign content, the Election Officer looks to the tone, content and timing of the publication. Martin, P-010-IBT-PNJ, et al. (August 17, 1995) (decision on remand), aff’d, 95 - Elec. App. - 18 (KC) (October 2, 1995).
In Martin, the Election Officer recognized that union officers and officials have a “right and responsibility to exercise the powers of their office and to advise and report to the membership on issues of general concern” (quoting Camarata v. International Bhd. of Teamsters, 478 F. Supp. 321, 330 (D.D.C. 1979), aff’d, 108 LRRM (BNA) 2924 (D.C. Cir. 1981)). The Election Officer also recognized in Martin that:
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. . . an otherwise acceptable communication may be considered campaigning if it goes on to make a connection with the election or election process, if it involves excessive direct or indirect personal attacks on candidates, or, alternatively, involves lavish praise of candidates. Otherwise, legitimate coverage of the activities of a union official running for office may constitute campaigning if it is excessive.
The press releases in question are directly and facially connected to legitimate union business: the settlement of a racketeering lawsuit affecting the health and pension funds of Local Union 705. Moreover, the International union financed the litigation. The IBT has the right and responsibility to inform and advise the membership of these official actions by means of factual, campaign-neutral press releases.[2] These communications do not violate the Rules because they focus on legitimate subjects and do not support or attack a candidate for International office or local union delegate. Communications which cross that line and discuss legitimate union issues in the context of the election campaign are violative of the Rules. See Hoffa, P-133-IBT-CHI (October 12, 1995), aff’d, 95 - Elec. App. - 28 (KC) (October 26, 1995).
As to the issue of timing, the press release was distributed the same day as the press conference. While the press conference did not take place until more than two weeks after a court approved the lawsuit settlement on February 27, the Election Officer finds that this factor alone is insufficient to transform what is otherwise a communication relating to matters of legitimate union interest into a campaign statement. Mr. Zero’s appearance at the press conference is legitimate, as he is the principal officer of the local union. Legitimate union business may still be administered while delegate and officer elections occur. Therefore, the Election Officer finds that the press release announcing the settlement of this lawsuit does not violate the Rules.
The protesters also allege that Mr. Cook, one of the original plaintiffs, was purposefully excluded from the press conference because of his support for Mr. Hoffa. Neither press release mentions rank and file members who were involved in the litigation, although it does mention the fact that seven members of the local union brought the suit. The protesters have presented no evidence that Mr. Cook was excluded from the press conference. In fact, the announcement states that the news conference included “Teamsters General President Ron Carey[,] Local 705 President Gerald Zero[,] Rank-and-file Local 705 members who brought the lawsuit.” It is certainly reasonable that union officers would address the press at the press conference.
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Article VIII, Section 11(b) of the Rules prohibits expenditure of union funds for campaigning by union officer or employees. Article XII, Section 1(b)(1) prohibits a union organization from contributing to any person’s candidacy.
The protesters theorize that Mr. Carey engaged in campaigning merely by announcing the settlement of a lawsuit at a press event sponsored by a local union. This is not the case. As the Election Officer stated in Martin, supra, an “incumbent union official may conduct union business without having it labeled as campaigning.” (Citing United Steelworkers v. Sadlowski, 457 U.S. 102, 112 (1982); Salzhandler v. Caputo, 316 F.2d 445, 448-49 (2d Cir. 1962), cert. denied, 375 U.S. 946 (1963)).[3] Here, it is well-settled that the allegations of pension fund abuse by past officials and vendors who worked for Local Union 705 is a subject matter of general concern to IBT members. The protesters do not allege that the delegate or officer elections were referenced by Mr. Carey in his remarks. Nor did the union officials attending the press conference participate in their capacities as candidates. In addition,
Mr. Carey’s presence at the press conference bears a reasonable relationship to his role as IBT general president.
In consideration of the foregoing, this protest is DENIED.
7. P-620-LU705-CHI
Mr. Stewart alleges that Mr. Stout campaigned during working hours at a UPS facility on March 12, 1996, in violation of the Rules. Mr. Stout denies that he campaigned on the day in question, stating rather that he shook hands and exchanged pleasantries with individuals who were campaigning at the work site.
Mr. Stewart contends that on March 12, 1996, Mr. Stout passed out campaign literature on behalf of the Hoffa slate from 8:00 to 8:50 a.m. at a UPS facility. The investigation revealed that Mr. Stout is a UPS general utility employee who worked that day from 5:00 a.m. to 1:30 p.m. He was on work time at the time Mr. Stewart alleges he campaigned. The protester states that he saw Mr. Stout campaigning in the facility’s west parking lot when Mr. Stewart brought a load into the yard at 8:15 a.m. According to
Mr. Stewart, when he returned to the lot around 8:45 a.m., Mr. Stout was still campaigning.
Article VIII, Section 11(a) of the Rules states, in relevant part:
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No candidate or member may campaign during his/her working hours. Campaigning incidental to work is not, however, violative of this section. Further, campaigning during paid vacation, paid lunch hours or breaks, or similar paid time off is also not violative of this section.
Mr. Stout contends that he passed through the facilities west gate at around 8:10 a.m. on his way to a work assignment at the facility education center. According to Mr. Stout, he met Mike Husar and Mr. Cook, who were passing out Hoffa campaign literature in the west parking lot. Mr. Stout admits he stopped to shake their hands and exchange pleasantries, but states that he then continued to his work assignment. Mr. Stout states that he has been a UPS employee for 28 years and would not jeopardize his position by campaigning on work time.
In light of this evidence, the Election Officer credits Mr. Stout’s version of events. Mr. Stout admits to being where Mr. Stewart saw him between 8:10 and 8:15 a.m., but insists he only stopped for a moment and did not campaign. In his protest, Mr. Stewart contends that Mr. Stout campaigned for 50 minutes, but during the investigation he stated that he had only seen Mr. Stout at 8:15 and again at 8:45 a.m. In addition, Mr. Stewart admitted that he had no knowledge of what Mr. Stout was doing between these times. It is reasonable to assume, therefore, that Mr. Stewart saw Mr. Stout shortly after 8:00 a.m. as Mr. Stout paused to greet Messrs. Cook and Husar. It may also be concluded that Mr. Stewart saw people campaigning in the west parking lot when he returned a half-hour later. The Election Officer concludes, however, that Mr. Stout had proceeded to work by this time and did not assist in the Hoffa campaign activities.
For the foregoing reasons, the protest is DENIED.
8. P-622-LU705-CHI
The protester, Mr. Cook, charges that the Election Officer’s failure to issue decisions concerning four prior protests he filed has “denied [him] the right to a fair election.”
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.”
The protester alleges that the delay in issuing decisions for P-458-LU705-CHI (filed on February 14, 1996), P-508-LU705-CHI (filed on February 21, 1996), P-517-LU705-CHI (filed on February 22, 1996) and P-518-LU705-CHI (filed on February 22, 1996), violates the Rules. A decision on P-458-LU705-CHI was issued on March 13, 1996. The other protests are addressed in the present decision.
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May 8, 1996
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The Election Officer acknowledges that she has not issued a decision in these protests filed by Mr. Cook within the seven-day time frame set forth in the Rules. However, the Election Officer also points out that Mr. Cook has filed 16 pre-election protests with her office. The Election Officer is confident that the Regional Coordinator 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, made a seven-day response extremely difficult. Mr. Cook can be assured that his protests were thoroughly investigated by the Regional Coordinator and carefully considered by the Election Officer as expeditiously as possible.
In addition, Article XIV, Section 2(f)(2) of the Rules states that, after evaluation, the Election Officer may defer decision of a pre-election protest until after the election, effectively delaying the issuance of a decision on the protest. The Rules leave the determination of when such deferrals are necessary to the discretion of the Election Officer. Due to the nature and volume of Mr. Cook’s protests, the Election Officer deferred them for post-election decision. Mr. Cook was not deprived a remedy in any protest because the Election Officer can set aside the results of an election if she finds that a violation of the Rules could have affected the outcome of that election.
Based on the circumstances presented herein, the Election Officer does not find a violation of the Rules.
9. P-626-LU705-CHI
Mr. Cook alleges that his employer, Hyman Freightways (“Hyman”), removed campaign literature from a work-site bulletin board, in violation of the Rules. Mr. Cook contends that he had a pre-existing right to post the material because the postings had not previously been limited to official union documents.
Dale Thompson, a dispatch supervisor at Hyman, responds that he removes literature that he considers inappropriate from the bulletin boards. According to Mr. Thompson, such inappropriate literature includes political material and “for sale” signs from employees. He states that Hyman does not have a written policy concerning postings, but that he has removed such literature since he came to work there more than four years ago.
Article VIII, Section 11(d) of the Rules states:
No restrictions shall be placed upon candidates’ or members’ preexisting rights to use employer or Union bulletin boards for campaign publicity . . . Such facilities and opportunities shall be made available to all candidates and members on a nondiscriminatory basis.
Past practice is a relevant consideration in determining whether a pre-existing right to use bulletin boards for campaign-related purposes has previously been established. Meyer,
P-130-LU600-MOI, et seq. (October 12, 1995); Blake, P-953-LU848-CLA (October 30, 1991).
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May 8, 1996
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During the investigation, Jo Pressler, an administrator at Local Union 705, confirmed that, while members at Hyman have never had a right to post campaign material on the official, glass-encased union bulletin board, members have been allowed to post campaign material during previous elections, including the 1995 delegate and International officer elections. The local union has made it plain that it opposes political postings at work sites, yet admits that workers at Hyman had a pre-existing right to post campaign literature.
As a result, members employed at Hyman have been denied pre-existing rights to use a union bulletin board to campaign, in violation of the Rules. This protest, however, is being considered in a post-election context. Therefore, 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 of the Rules 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. Hotel Employees, Local 6, 391 U.S. 492, 507 (1968). A violation creates a presumption that the outcome was affected. Id. Once a violation is established, therefore, the Election Officer determines whether the effect of the violation was sufficient in scope to affect the outcome of the election. Id. Dole v. Mailhandlers, Local 317, 711 F. Supp. 577, 581 (M.D. Ala. 1989).
A review of Local Union 705’s election results revealed that the protester’s slate won both the delegate and alternate delegate elections. As a result, the fact that the protester was not allowed to post campaign material at Hyman did not disadvantage him or alter the result of the election. Accordingly, it is the determination of the Election Officer that the violation found in this protest is not sufficient in scope to affect the outcome of the election.
Having found that the Rules have been violated, however, the Election Officer “may take whatever remedial action is appropriate.” Article XIV, Section 4. In fashioning the appropriate remedy, the Election Officer views the seriousness of the violation, as well as its potential for interfering with the election process. While the Local Union 705 delegate election has been held, the International officer election will be held later this year. The Rules grant the same protection of pre-existing rights to post campaign material for candidates for International office and any union member within the regional area in which the candidate is seeking office. Thus, it is necessary to provide a remedy to insure that Hyman accedes to the rights granted in the Rules pertaining to the International officer elections. In these circumstances, the Election Officer directs Hyman to allow campaign material to be posted on the union bulletin board in the drivers room that is not encased in glass. See Schneider,
P-453-LU70-CSF et al. (April 12, 1996), aff’d, 96 - Elec. App. - 180 (April 25, 1996) (KC).
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).
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May 8, 1996
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10. P-706-LU705-CHI
Mr. Cook alleges that the RPM slate used AFSCME facilities to conduct phone-banking, in violation of the Rules. The protester does not allege that the RPM slate failed to pay fair-market value for the use of AFSCME’s facilities, but contends that AFSCME has not made its facilities available to any other slate or candidate. Mr. Cook reasons that such restricted access is an employer campaign contribution in violation of the Rules because, even though the RPM slate compensated AFSCME, AFSCME’s denial of equal access to all candidates means that the RPM slate has received unfairly favorable treatment.
Article XII, Sections 1(a) and 1(b)(1) of the Rules prohibit an employer from making any campaign contributions to the campaign of a candidate for delegate or International office. The Rules define “campaign contributions” to include “any direct or indirect contribution of money or other thing of value where the purpose, object or foreseeable effect of that contribution is to influence the election of a candidate.” Rules, Definitions, 5. As stated in the Election Officer’s Advisory on Campaign Contributions and Disclosure, such contributions can include any goods, compensated services or any material things of value. The Rules also define campaign contributions to include discounts in the price or cost of goods. Rules, Definitions, 5(c). The term “employer” is defined under the Rules to include “any individual, corporation, trust, organization or other entity that employs another, paying monetary or other compensation in exchange for that individual’s services.” Rules, Definitions, 17.
The purchase of goods or services by a member does not constitute a campaign contribution by the vendor if the terms of the purchase are commercially reasonable. See
In Re: Gilmartin, 95 - Elec. App. - 45 (KC) (December 18, 1995); Carter, P-457-
LU550-NYC (March 7, 1996); Gilberg, P-284-IBT, aff’d in pertinent part, 91 - Elec.
App. - 194 (SA) (October 2, 1991). In Gilberg, the Election Officer advised:
In situations where there is more than one producer of an item, the commercially reasonable price is set by the market for that item. The determination of whether the terms of sale are commercially reasonable will also depend on whether the vendor offers similar terms to other purchasers of his product.
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May 8, 1996
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Accepting all of the protester’s allegations as factual, the Election Officer still cannot find a violation of the Rules. Mr. Cook’s contention that a private, third-party provider who sells goods or services to candidates is obligated to sell the same goods and services to all other candidates is without merit. Article XII, Section 1(b)(3) of the Rules requires an IBT affiliate who provides goods or services to candidates at fair-market value to provide the same goods and services at the same price to all other relevant candidates. This section does not, however, apply to labor organizations not affiliated with the IBT, such as AFSCME. In addition, while Article XII Section 1(b)(1) forbids candidates from receiving campaign contributions from employers and labor organizations, nothing in the Rules prohibits campaign organizations from purchasing the use of employer or labor organization facilities. Therefore, the RPM slate’s paid use of AFSCME facilities at fair-market value does not constitute a campaign contribution, under the Rules.
In accordance with the foregoing, the protest is DENIED.
11. Post-14-LU705-CHI
Mr. Cook alleges that RPM slate candidates Edward Benesch and Steve Pocztowski served as observers at Local Union 705’s ballot re-count on March 29, 1996, in violation of the Rules. He further alleges that Mr. Benesch, the local union’s vice president,
Mr. Pocztowski, a business agent, and Business Representative Otis Cross observed the ballot re-count on union time, in violation of the Rules.
Mr. Cook’s allegations are without merit. First, the Rules do not prohibit a candidate from observing a ballot count. In fact, Article X, Section 1 allows observers to be present at “each and every phase of the election process. Such observer shall be a candidate or a member in good standing of the Local Union.”
The only limitation on a candidate’s right to observe is stated in Article X, Section 1(d) of the Rules: “A candidate may not serve as an observer at a polling place where his/her name appears on the ballot at that polling place.” This section is not applicable to the present protest because the protester does not allege that the candidates protested here were observing at a polling place. Rather, Mr. Cook clearly states that they were observers at the re-count of delegate election ballots.
Mr. Cook’s assertion that local union employees, officers, or agents may not observe the election process on union time also lacks merit. The Rules do not specifically forbid agents of the local union from observing campaign proceedings while on union time.
Article XII, Section 1(b)(1) of the Rules, however, prohibits the use of union funds or other resources “where the purpose, object, or forseeable effect is to influence, positively or negatively the election of a candidate. . .” Observing a ballot count is not a campaign activity. It is activity specifically protected by the Rules. Article X, Section 1. Thus, the fact that observers are also paid agents of the local union does not violate the Rules. The Election Officer has determined that the use of union resources to perform protected activity does not violate the Rules. See Cook, P-357-LU705-CHI (February 16, 1996), aff’d, 96 - Elec.
App. - 113 (February 29, 1996).
Accordingly, 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:
Archie Cook, et al.
May 8, 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
Julie E. Hamos, Regional Coordinator
Bruce Boyens, Regional Coordinator
[1]Article VIII, Section 11(f) of the Rules states:
Retaliation or threat of retaliation by the International Union, any subordinate body, any member of the IBT, any employer or other person or entity against a Union member, officer or employee for exercising any right guaranteed by this or any other Article of the Rules is prohibited.
[2]See Tusino, P-639-IBT-SCE (April 12, 1996), aff’d, 96 - Elec. App. - 178 (KC) (April 24, 1996); Gilmartin, P-032-LU245-PNJ (January 5, 1996), aff’d, 95 - Elec. App. - 75 (KC) (February 6, 1996); Stone, P-247-IBT-SCE (January 22, 1996), aff’d, 96 - Elec.
App. 74 (KC) (February 6, 1996); Blake, P-245-JC42-CLA (December 18, 1995).
[3]As further stated in Martin, supra, “[i]t is undoubtedly true that Mr. Carey as an incumbent candidate for reelection derives a certain advantage from the attention and publicity given to him in conducting official IBT business. Incumbency, however, is a two-edged sword. Mr. Carey is subject to blame when union policies fails or when negotiations result in a less advantageous collective bargaining agreement. See, e.g., Ruscigno, P-65-JC37-EOH (July 21, 1995), aff’d, In Re: Sullivan, 95 - Elec. App. - 7 (KC) (August 14, 1995).