December 30, 1997
VIA UPS OVERNIGHT
Garnet Zimmerman
December 30, 1997
Page 1
Garnet Zimmerman, President
Teamsters Local Union 31
1 Grosvenor Square
Delta, BC V3M 5S1
CANADA
Tom Sever, General Secty. Treas.
International Brotherhood of Teamsters
25 Louisiana Avenue, NW
Washington, DC 20001
David L. Neigus, Deputy
General Counsel
International Brotherhood of Teamsters
25 Louisiana Avenue, NW
Washington, DC 20001
Richard Brook, Esq.
Cohen, Weiss and Simon
330 West 42nd Street
New York, NY 10036
James P. Hoffa Slate
c/o Patrick J. Szymanski, Esq.
Baptiste & Wilder
1150 Connecticut Avenue, NW
Suite 500
Washington, DC 20001
Brad Swannie
10823 85-A Avenue
Delta, BC V4C 2V2
CANADA
Garnet Zimmerman
December 30, 1997
Page 1
Re: Election Officer Case No. PR-023-LU31-PNW
Gentlepersons:
Garnet Zimmerman, president of Local Union 31, filed a pre-election protest pursuant to Article XIV, Section 2(b) of the Rules for the 1995-1996 IBT International Union Delegate and Officer Election (“Rules”) against Ron Carey. Mr. Zimmerman, a candidate for International vice-president on the Hoffa Slate, alleges that Mr. Carey deprived him of his right to participate in campaign activity. Additionally, Mr. Zimmerman alleges that Mr. Carey’s discriminatory and arbitrary rulings in regard to Local Union 31's officer election were in retaliation for Zimmerman’s having run on the Hoffa Slate in 1996 and for filing papers with the Election Officer that indicate his intent to run in the rerun election.
The specific alleged retaliatory acts are as follows: a) the appointment of an election monitor to oversee the local union election; b) the postponement of an election ballot mailing; c) an order for the immediate resolution of three pre-election protests; d) the provision of expedited protest decisions to Mr. Zimmerman’s opponent; and e) the reversal of a decision of the Local Union 31 Executive Board.
Garnet Zimmerman
December 30, 1997
Page 1
In correspondence submitted during the protest investigation, Mr. Zimmerman alleges that the following additional actions of Mr. Carey constituted a further violation of the protester’s rights: f) the order for a bargaining unit vote on the Local Union 31 Industry Advancement Fund, g) the exclusion of candidate biographies from ballot mailings; h) campaign contributions from Diana Kilmury and David Kozak in support of Mr. Zimmerman’s opponent; I) criticism over the radio of Mr. Zimmerman by a solicitor representing the protester’s political opponent; and j) repeated violations of Canadian legal principles of natural justice.
The IBT responds that the protest concerns a local union election outside the scope of the Rules, that the IBT Constitution authorizes the general president to supervise the conduct of local union elections, and that the actions cited here reflect reasonable use of the general president’s authority. The IBT notes Article XXII, Sections 4(d) and 5(a) of the IBT Constitution give the general president authority to supervise local union elections and to rule on pre-election protests. It states that Mr. Carey has made similar rulings in other local unions where the political affiliations of the leadership were aligned with Mr. Carey that he reasonably exercised such authority in the instant case, and that these decisions have nothing to do with the International officer election and are consequently not regulated by the Rules. The IBT also maintains that Article VI, Section 1(h) of the IBT Constitution grants the general president the authority to direct secret ballot elections. Additionally, it asserts that Mr. Zimmerman failed to exhaust his appeal rights under Article XXII, Section 5(a) and Article VI, Section 2 of the IBT Constitution.
The protest was investigated by Regional Coordinator Christine M. Mrak.
I. Applicable Legal Principles
The role and authority of the Election Officer is stated in Article I of the Rules, providing, in relevant part:
Pursuant to the Consent Order, the Election Officer has the authority to supervise all phases of the International Union delegate and officer election, including, where necessary, the authority to conduct, overturn or rerun any phase of that election. The Election Officer has the authority to hear and determine, with the Election Appeals Master, protests and appeals concerning the election. The Election Officer is authorized and obligated to certify election results.
Garnet Zimmerman
December 30, 1997
Page 1
The overall role of the Election Officer is to ensure “fair, honest, open and informed elections,” not to retain or protect the influence of a particular local union officer, executive board or membership. It is not the role of the Election Officer to scrutinize the general policy decisions of the International Union, except as they relate to his grant of authority. The Election Officer therefore only would find a violation if actions that Mr. Carey is found to have performed regarding the Local Union 31 officer election were connected to the International Union officer election, and amounted to a Rules violation.
Supervision of local union officer elections is one of the institutional functions of the International union. See Article XXII, Sections 4 and 5 of the IBT Constitution. The Election Officer will not disturb a legitimate union function and will grant the union discretion to conduct its business. The Election Officer would intervene here only if substantial evidence were presented that actions and rulings related to the local election supervision process were based on irrelevant or invidious considerations and were implemented to affect the International officer election process. Robbins, P-013-IBT-SCE, (June 30, 1995), aff’d, 95 - Elec. App. - 3 (KC) (July 26, 1995).
Even assuming that controlling provisions of the IBT Constitution may be subject to varying reasonable interpretations, that would not defeat the union’s claim that it acted for legitimate, institutional reasons unrelated to the International officer election. Thus, the Election Officer will not disturb an International officer’s reasonable, good-faith interpretation of the union constitution. Robbins; Lucas v. Bechtel Corp., 800 F.2d 839, 849-51 (9th Cir. 1986); Local 48 v. Carpenters, 920 F.2d 1047, 1052 (1st Cir. 1990).
With respect to a member’s right to participate in a campaign, Article VIII, Section 11(a) of the Rules provides:
All Union members retain the right to participate in campaign activities, including the right to run for office, to support or oppose any candidate, to aid or campaign for any candidate, and to make personal campaign contributions. This includes, but is not limited to, the right to distribute campaign literature and to otherwise solicit support for a member’s candidacy outside a meeting hall before, during and after a Union meeting, regardless of Union policy, rule or practice.
The Rules, at Article VIII, Section 11(f), prohibit retaliation when directed toward the exercise of any election-related right. See Parisi, Case No. P-1095-LU294-PGH (December 2, 1991). A protest claiming retaliation cannot be sustained unless the evidence shows either a threat or an actual act of retaliation is established. Giacumbo, P-100-IBT-PNJ (October 13, 1995), aff’d, 95 - Elec. App. - 27 (KC) (October 25, 1995).
Garnet Zimmerman
December 30, 1997
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The Election Officer will not find retaliation based on alleged adverse actions if he concludes that the union officer or entity would have taken the same action even in the absence of the protected conduct. See Gilmartin, P-032-LU245-PNJ, (January 5, 1996); Leal, P-051-IBT-CSF (October 3, 1995), aff’d 95 - Elec. App. - 30 (KC) (October 30, 1995); Wsol, P-095-IBT-CHI (September 20, 1995), aff’d, 95 - Elec. App. - 17 (KC) (October 10, 1995).
For the reasons set forth below, the protest is denied in its entirety.
II. Facts and Analysis
Local Union 31 held local officer elections on November 17, 1997, in which Brad Swannie, the local union vice-president, challenged Mr. Zimmerman as a candidate for president. Mr. Swannie was a strong supporter of the Carey slate and Mr. Zimmerman is a candidate on the Hoffa slate. The two men are long-time political rivals. The mail ballots were counted on November 17 and the protester won by approximately 200 votes. Mr. Swannie has appealed the results to the IBT General Executive Board. Mr. Zimmerman filed the instant protest on October 29, 1997, after the mailing of the ballots but before the count.
A. Appointment of a Monitor
On October 7, 1997, Mr. Carey appointed a monitor to supervise the Local Union 31 officer election based on a request by Mr. Swannie. Mr. Zimmerman contends that Mr. Carey acted without requesting submissions or permitting anyone aside from Mr. Swannie the opportunity to provide submissions in support of or in opposition to the appointment. He further states that Mr. Carey relied upon incorrect allegations of fact when deciding on Mr. Swannie’s request.
Mr. Carey’s authority to appoint a supervisor for a local union election is set forth in Article VI, Section 1(f) of the IBT Constitution, which states:
The General president may appoint and designate a member of the Union as a Personal Representative who shall act on behalf of the General president as the General president may determine, including the right to attend meetings of any subordinate body of the International Union.
The IBT submitted evidence that such appointments are made without regard to the political affiliations of local union candidates. They cited Mr. Carey’s appointment in September 1997 of a monitor to the Local Union 938 officer election, based upon a request by an opponent to the Carey slate. Mr. Carey did not request or obtain any submissions prior to making the appointment. In the instant case, the Election Officer finds that appointing a monitor based on Mr. Swannie’s request does not violate the Rules and is reasonably within Mr. Carey’s discretionary authority under the IBT Constitution. No evidence has been presented showing any nexus between Mr. Carey’s act and the IBT International officer election.
Garnet Zimmerman
December 30, 1997
Page 1
B. Postponement of the Election
On October 16, 1997, Mr. Carey ordered Local Union 31 to postpone mailing election ballots for one week. Mr. Zimmerman contends that this action was taken without appropriate constitutional authority, in violation of constitutionally mandated notification procedures and utilizing the threat of the imposition of a trusteeship if the local union failed to comply. The IBT counters that Mr. Carey has the authority to alter the dates of local union elections under Article XXII, Section 4(d) of the IBT Constitution, that he has previously exercised this authority in connection with other local union elections, and that he did so here in order to resolve a pre-election protest.
The Election Officer finds that the reason for the delay was to permit IBT representatives the time to investigate and resolve a pre-election protest. This action falls within the right of the International union to supervise local elections. No evidence has been submitted showing any nexus to the IBT International officer election.
C. Rulings on Pre-Election Protests
On October 16 and 18, 1997, IBT Staff Attorney Betty Grdina and Election Monitor David Sword ordered Local Union 31 Executive Board to issue rulings on three pending pre-election protests within a shortly defined time period. This occurred after the Local Union Executive Board had retracted the authority it had previously given Mr. Sword to resolve pre-election protests. The Executive Board did not comply with the time limits imposed by the orders. Mr. Zimmerman states that these orders were jurisdictionally insufficient since the Local Union Executive Board retained exclusive jurisdiction of such protests. Additionally, he alleges that the orders were relayed to the Local Union Executive Board under the threat of the imposition of a trusteeship if the local union failed to comply, along with the threat to further delay the election process.
The IBT does not dispute that the Local Union Executive Board has the right to determine protests. It contends that the purpose of the shortened time period was to permit time for appeals prior to the mailing of ballots. The Election Officer finds no violation. There is no evidence that a trusteeship was ever threatened, nor is there any evidence of a nexus to the IBT Election Officer election.
D. Allegation of Bias
Garnet Zimmerman
December 30, 1997
Page 1
Mr. Zimmerman states that Mr. Carey has consistently displayed “patent bias” by providing expedited rulings on protests filed by Mr. Swannie while failing to answer his protests. Mr. Zimmerman cites his request for a reconsideration of Mr. Carey’s decision prohibiting Local Union 31 from issuing withdrawal cards to recently decertified employees at Clark Reefer Lines Ltd., Mr. Swannie’s ex-employer.
There is a dispute between the parties over the interpretation of the IBT Constitution with respect to this issue. The protester asserts that Article XVIII, Section 6(a) of the IBT Constitution gives local unions the jurisdiction to grant withdrawal cards. The IBT argues that the IBT Constitution allows a local to issue a withdrawal card only upon the request of a member, or after six months of unemployment.
It is well-settled that an International’s reasonable interpretation of its Constitution is given virtually conclusive deference by the courts. See Robbins. The Election Officer finds that this matter concerns the IBT’s interpretation of its Constitution and does not involve any violation of the Rules.
E. Decision of Mr. Carey on a Protest
On October 2, 1997, Mr. Swannie filed a pre-election protest with Local Union 31, alleging that the local union improperly used union resources to benefit Mr. Zimmerman’s campaign by publishing three articles critical of Mr. Swannie in the September local union newsletter. On October 7, the Local Union Executive Board denied the protest. Based on an appeal by Mr. Swannie, Mr. Carey reversed the decision on October 24 and sustained the protest. Mr. Zimmerman contends that Mr. Carey’s decision constituted an abuse of power and violated the IBT Constitution, Canadian common law, and British Columbia labour statutes due to Mr. Carey’s failure to request submissions on the appeal. He further argues that the remedy ordered was timed to damage his campaign. Finally, he states that Mr. Carey improperly applied the Rules to a local union election.
The IBT counters that Mr. Carey’s decision was a proper exercise of the authority granted under the IBT Constitution to rule on pre-election protest appeals and that the remedy imposed was reasonable and consistent with Election Officer remedies in similar cases.
The Election Officer notes that the protester presented no evidence that Mr. Carey’s decision was based on irrelevant or invidious considerations nor that it was implemented to affect the IBT International officer election process. Robbins. The decision was within Mr. Carey’s discretionary authority over local union elections. There is no nexus to the International officer election.
F. Vote on the Fund
Garnet Zimmerman
December 30, 1997
Page 1
During the Local Union 31 officer election process a member of Mr. Swannie’s slate requested that Mr. Carey order the local union to conduct a vote among UPS workers as to whether they wanted their bargaining committee to approach UPS to ask them to convert its contribution to the Local Union 31 Industry Advancement Fund (“Fund”) into employee wages. On July 31, the IBT received a petition signed by 228 of the 330 members in the Local Union 31 UPS bargaining unit seeking a vote on the Fund. Mr. Carey subsequently ordered such a vote. As there existed a binding, recently concluded UPS collective bargaining agreement which was not to expire for some time, Mr. Zimmerman contends that this order was a direct contravention of Mr. Carey’s policy of only conducting such votes upon the petition of a certain percentage of employees prior to the commencement of the negotiation of a new collective bargaining agreement. The protester further asserts that the order for a vote is evidence of Mr. Carey’s motive to help create political issues that would benefit Mr. Swannie.
The IBT responds that Article VI, Section 1(h) of the IBT Constitution gives Mr. Carey the discretion to order a secret ballot vote when, in his opinion, the welfare of the members of the local union will be served. The Election Officer finds that Mr. Carey’s order was made in response to the request for a vote by the majority of the bargaining unit members. While this directive may have coincided with the campaign position of Mr. Swannie, that fact alone is not evidence of a motive linking that decision to the International officer election.
G. Biographies of Candidates
On October 10, 1997, Monitor Sword ordered Local Union 31 not to include any biographies of candidates with the ballots being sent out for the local union officer election. Mr. Zimmerman protests that this action was contrary to what was agreed upon previously by all of the candidates and that Mr. Sword only prohibited the addition of the biographies to support the campaign of Mr. Swannie. The IBT responds that Mr. Sword’s decision in this dispute turned on the resolution of a contested factual issue and was made after consultation with both parties. The Election Officer finds that as there exists no nexus between Mr. Sword’s decision and the International officer election.
H. Campaigning by Ms. Kilmury and Mr. Kozak
Mr. Zimmerman contends that Ms. Kilmury and Mr. Kozak supported the campaign of Mr. Swannie in the following manner:
a) Ms. Kilmury donated her personal campaign bus to Mr. Swannie’s campaign free of charge;
b) Mr. Kozak, publicly and privately urged Local Union 31 members to support Mr. Swannie in the election; and
Garnet Zimmerman
December 30, 1997
Page 1
c) Both Ms. Kilmury and Mr. Kozak were quoted in the local media supporting Mr. Swannie.
Campaigning for Mr. Swannie supported his candidacy in the local union election and is therefore not within the Election Officer’s jurisdiction.
I. Mr. Swannie’s Solicitor
Mr. Zimmerman contends that Solicitor Leo McGrady, the attorney defending Mr. Swannie in a defamation action brought by the protester, is the same attorney utilized by Mr. Kozak in a court case involving Local Union 464. This allegation, even as stated, does not allege a violation of the Rules.
J. Natural Justice
Mr. Zimmerman generally contends that Mr. Carey repeatedly violated the protester’s right to basic principles of natural justice by failing to give the protester proper notice or opportunity to be heard. The Election Officer finds that the actions of Mr. Carey and the IBT were consistent with the authority over the membership and the conduct of the local union elections that the IBT Constitution confers on the general president.
III. Conclusion
The protester has not identified any conduct which was intimidating and retaliatory to Mr. Zimmerman as a candidate in the International officer election or established any nexus between Mr. Carey’s conduct related to the local election and the International officer election.
Accordingly, the protest is DENIED.
Any interested party not satisfied with this determination may request a hearing before the Election Appeals Master within one (1) 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
Garnet Zimmerman
December 30, 1997
Page 1
Copies of the request for hearing must be served on the parties listed above as well as upon the Election Officer, 444 North Capitol Street, NW, Suite 445, Washington, DC 20001, Facsimile
(202) 624-3525. A copy of the protest must accompany the request for a hearing.
Sincerely,
Michael G. Cherkasky
Election Officer
MGC:chh
cc: Kenneth Conboy, Election Appeals Master
Christine M. Mrak, Regional Coordinator