June 4, 1996
VIA UPS OVERNIGHT
George Kieffer
June 4, 1996
Page 1
George Kieffer
2580 Miller Street
Lakewood, CO 80215
Roman R. Garcia, Secretary-Treasurer
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 Kieffer
June 4, 1996
Page 1
Re: Election Office Case Nos. P-774-LU435-RMT
Post-24-LU435-RMT
Gentlemen:
A pre-election protests was filed pursuant to Article XIV, Sections 2(b) of the Rules for the 1995-1996 IBT International Union Delegate and Officer Election (“Rules”) by George Kieffer, a member of Local Union 435. In P-774-LU435-RMT, Mr. Kieffer alleges that campaign literature in support of James P. Hoffa, a candidate for general president, was displayed in a locked, glassed-encased union bulletin board at Park Corporation (a.k.a. Rustco Foods). According to the protester, this flyer was displayed for about four weeks, and supporters of General President Ron Carey were denied equal access. This protest was deferred by the Election Officer for post-election consideration pursuant to Article XIV, Section 2(f)(2).
In response, Local Union 435 Secretary-Treasurer Roman Garcia states that he was unaware that campaign materials had been posted at Park Corp. He also states that the local union has had difficulty controlling access to the locked bulletin board.
Mr. Kieffer also filed a post-election protest pursuant to Article XIV, Section 3 of the Rules. In Post-24-LU425-RMT, he contends that Associate Regional Coordinator
Zeik Saidman incorrectly counted the ballots of members employed by Safeway and wrongly determined members employed by United Parcel Service (UPS) to be ineligible to vote
George Kieffer
June 4, 1996
Page 1
In response, Mr. Saidman states that he and other Election Officer representatives examined each challenged ballot individually and that no incorrect voter eligibility determinations were made.
These protests were investigated by Associate Regional Coordinator Zeik Saidman. Election Office Protest Chief Benetta Mansfield investigated the protest related to
Mr. Saidman’s conduct at the election count.
Ballots for the Local Union 435 re-run election were counted on May 16, 1996. This was the second election for delegates and alternate delegates held at Local Union 435 pursuant to an Election Officer order that the election be re-run. See Kieffer, et al., Post 5-LU435-RMT (March 19, 1996). There were 1,936 ballots cast, of which 1,796 were counted. Two slates competed for the five delegate positions. One hundred forty ballots were declared void. The results were as follows:
Delegate
Rank Name Slate/Independent Number of Votes
1 Sylvia Salazar Teamsters United 907
2 Robert H. Newhouse Teamsters for Justice 898
3 Dave Ring Teamsters United 893
4 Steve Vairma Teamsters United 877
5 Roman R. Garcia Teamsters United 873
6 Douglas Brees Teamsters for Justice 854
7 Roger Quimby Teamsters United 852
8 George Kieffer Teamsters for Justice 849
9 Alan Knoll Teamsters for Justice 847
10 Tim Mace Teamsters for Justice 841
11 Myrtle M. Smith Independent 122
Alternate Delegate
1 Alan Frisbee Teamsters for Justice 873
2 Gary Stugart Teamsters United 866
3 Ron Cash Teamsters United 864
4 Curt Bowker Teamsters for Justice 835
5 David Determan Independent 97
1. P-774-LU435-RMT: Display of Campaign Flyer at Park Corporation
George Kieffer
June 4, 1996
Page 1
David McCormick, a member of Local Union 435 who works at Park Corporation, confirmed the protester’s allegation that a campaign flyer supporting Mr. Hoffa’s candidacy was posted on a locked, glass-enclosed union bulletin board for a two- to three-week time period. The flyer has since been removed. According to Mr. Garcia, he has no access to the bulletin board in question, but a union business agent does. In the Local Union Plan filed with the Election Officer, Business Agent Dave Mondragon is listed as the “agent responsible for maintenance [and] posting[s]” on the bulletin board in question. Postings on this bulletin board are reserved for official union business and must be authorized by the local union.
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 been established. Meyer, P-130-LU600-MOI, et seq. (October 12, 1995); Blake, P-953-LU848-CLA (October 30, 1991).
A similar factual situation involving Local Union 435 was protested in Kieffer, et al., P-745-LU435-RMT, et seq., (May 9, 1996). There, the Election Officer stated:
[I]t is clear that in the midst of a hotly-contested re-run delegate election in Local Union 435, someone posted campaign material for a candidate supported by one of the slates on a union bulletin board where it apparently remained for approximately a week. The position of the local union is that these bulletin boards are reserved “solely for official and approved Union business.” Thus, the access for these postings, while not authorized by the local union, was apparently permitted by business agents with keys to the locks for the bulletin boards. This access gave the Hoffa campaign an unfair advantage over the Carey campaign, in violation of the Rules. See MacDonald, P-379-LU490-CSF
(February 20, 1996).
Here, the Election Officer has no reason to doubt Mr. McCormick’s credibility. Once again, apparently access was given by a Local Union 435 business agent to a supporter of Mr. Hoffa, or the campaign literature was posted by the business agent himself. Thus, Article VIII, Section 11(d) of the Rules was violated.
In consideration of the foregoing, Mr. Kieffer’s protest is GRANTED.
George Kieffer
June 4, 1996
Page 1
This protest 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).
The flyer remained posted on the bulletin board from between two to three weeks leading up to the filing of this protest on May 20, and the flyer was removed within two or three days of the filing of this protest--after the election count. On the other hand, Local Union 435’s delegate and alternate election was fiercely contested. There was a great deal of campaigning by both slates in the original and re-run elections. Many candidates campaigned face-to-face with union members and passed out literature. Cal Bradford, human resource director for Park Corporation, states that members of the Teamsters for Justice slate, with whom Mr. Kieffer is affiliated, campaigned in the Park Corporation’s parking lot on either May 10 or May 11 for at least two hours and asked permission to campaign in the company’s break room. Mr. Bradford states that members of the slate also distributed leaflets in the employee lunch room on that date. In addition, Mr. Bradford noticed that campaign literature was posted for the Teamsters for Justice slate next to the glass-enclosed bulletin board. In consideration of the foregoing, the Election Officer finds that even if the flyer could have benefitted the opposing Teamsters United slate, the Teamsters for Justice slate had ample campaign access to the Park Corporation employees. Therefore, the Election Officer concludes that the violation found in this protest is not sufficient in scope to have affected the election’s outcome.
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 435 delegate election has been held, the International officer election will be held later this year. Campaigning already is underway. The Rules require that union facilities and campaign opportunities be made available to all candidates “on a nondiscriminatory basis.” Article VIII, Section 11(d). Therefore, the Election Officer orders that Local Union 435 post on the glass-enclosed Park Corporation bulletin board campaign literature in support of Mr. Carey’s candidacy. Such campaign literature shall be provided by the protester to the local union within seven (7) days of the issuance of this decision and shall remain posted for at least twenty-one (21) days. Such literature shall not be defaced or covered over during any of this 21-day period. Thereafter, Local Union 435 shall cease and desist from posting any campaign literature on behalf of any candidate on any union-controlled glass-encased bulletin board. Should the nondiscriminatory access to bulletin boards continue to be violated, the Election Officer will order Local Union 435 to provide immediate access to all glass-enclosed bulletin boards to all candidates for International office for the remainder of the campaign period.
An order of the Election Officer, unless otherwise stayed, takes immediate effect against a party found to be in violation of the Rules. In Re: Lopez, 96 - Elec. App.- 73 (KC) (February 13, 1996).
George Kieffer
June 4, 1996
Page 1
2. Post-24-LU435-RMT: Allegations Concerning Voter Eligibility
Mr. Kieffer alleges that Mr. Saidman incorrectly ruled members employed by Safeway eligible to vote and that Mr. Saidman incorrectly determined ineligible persons employed by UPS. Specifically, the protester alleges that the votes of members employed by Safeway should not have been counted because it was found by the Election Officer in Kieffer, supra, that impermissible campaign access had been given to a Safeway bulletin board. Mr. Kieffer contends that, “[n]ow these very same votes, initially disqualified, were allowed to be counted and alter the outcome of the election.” As to the ballots cast by members employed by UPS, Mr. Kieffer argues that members’ ballots who “were involved in the first election and . . . received ballots in the rerun election” should have been counted regardless of their “current employment status.”
The Election Officer did not disqualify the members employed by Safeway from voting in the delegate election in her decision in Kieffer. Thus, the Safeway members were eligible to vote and their ballots were correctly opened and counted because each voter otherwise met the eligibility requirements of Article VII of the Rules.
As to the allegations concerning the UPS employees, Mr. Kieffer incorrectly contends that if these members were eligible to vote in the first election, their ballots should have been counted in this election regardless of whether they were eligible as of this vote count. The “Notice of Delegate Rerun Election for IBT Local 435” specifically stated “to be eligible to vote in this election, a member must have paid dues through April, 1996.” The eligibility of these voters was properly determined pursuant to the eligibility requirements of Article VII of the Rules.
In consideration of the foregoing, Mr. Kieffer’s 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
George Kieffer
June 4, 1996
Page 1
Copies of the request for hearing must be served on the parties listed above as well as upon the Election Officer, 400 N. Capitol Street, Suite 855, Washington, DC 20001, Facsimile
(202) 624-3525. A copy of the protest must accompany the request for a hearing.
Sincerely,
Barbara Zack Quindel
Election Officer
cc: Kenneth Conboy, Election Appeals Master